Feltrop v. Delo, 93-2738

• Decision Date: 28 March 1995
• Docket Number: No. 93-2738,93-2738
• Parties: Ralph C. FELTROP, Plaintiff-Appellant, v. Paul K. DELO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 766

46 F.3d 766

Ralph C. FELTROP, Plaintiff-Appellant, v. Paul K. DELO, Defendant-Appellee.

No. 93-2738.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 14, 1994.

Decided Jan. 27, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied March

28, 1995. ^*

Richard Sindel, Clayton, MO, argued for appellant.

Millie Aulbur, Asst. Atty. Gen., Jefferson City, MO, argued for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

Ralph C. Feltrop, a Missouri inmate under sentence of death, appeals the judgment of the district court denying his petition for a writ of habeas corpus. Feltrop raises numerous issues, the most difficult being whether the Supreme Court of Missouri correctly applied Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), to cure the trial court's sentencing-stage error in instructing the jury on a "depravity of mind" aggravating circumstance. We affirm.

I. Background

On March 16, 1987, shortly after a mutilated, dismembered female torso was found in St. Charles County, Missouri, Feltrop reported to the Jefferson County Sheriff's Department that his live-in girlfriend, Barbara Ann Roam, had been missing for a week. Suspecting that the body could be Ms. Roam, a Jefferson County deputy sheriff contacted Feltrop that evening and asked him to meet with St. Charles County investigators. Feltrop drove to the Jefferson County Sheriff's office, arriving at approximately 9:00 p.m. He waited until officers of the St. Charles County Sheriff's Department arrived at about 11:30 p.m.

Two St. Charles officers began questioning Feltrop in the small watch commander's office at 11:45 p.m., asking about his relationship with Roam and her disappearance. Feltrop initially stated that he had last seen Roam two weeks earlier leaving their home with an unknown man. At approximately 1:10 a.m., an officer asked Feltrop whether he was a Christian and would tell the truth; Feltrop responded, "She clawed me and tried to take the knife." The officers immediately warned Feltrop of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which he waived, and the questioning resumed. Feltrop then said that he had killed Roam in self-defense and later directed the officers to a partially submerged trash bag in a pond in Jefferson County which contained Roam's head, hands, and lower legs.

In June 1988, Feltrop was tried in the Circuit Court of Jefferson County and convicted of murder in the first degree. See Mo.Rev.Stat. Sec. 565.020 (1986). ¹ Following the guilty verdict, the court conducted a penalty stage of the trial, as prescribed in Mo.Rev.Stat. Sec. 565.030.4. Under this statute, if the jury concludes beyond a reasonable doubt that at least one statutory aggravating circumstance exists, it then considers whether the death penalty should be imposed, taking into account all evidence in aggravation and mitigation of punishment presented during the guilt and penalty stages of the trial. If the jury returns a verdict of death, it must set out in writing the aggravating circumstance(s) it has found. See generally State v. Shaw, 636 S.W.2d 667, 675 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982); State v. Bolder, 635 S.W.2d 673, 683 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983); Bolder v. Armontrout, 921 F.2d 1359, 1367 (8th Cir.1990), cert. denied, 502 U.S. 850, 112 S.Ct. 154, 116 L.Ed.2d 119 (1991). The trial court then has the power to reduce this punishment "if it finds that the punishment is excessive." Rule 29.05 of the Missouri Rules of Criminal Procedure.

At the conclusion of the penalty-stage evidence, the trial court submitted one statutory aggravating circumstance to the jury, whether "the murder of Barbara Ann Roam involved torture and or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible or inhuman," the factor enumerated in Mo.Rev.Stat. Sec. 565.032.2(7). The jury's verdict of death included a written finding that the murder "involved depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman."

The trial court denied Feltrop's Rule 29.05 motion for reduction of sentence, imposed the death sentence, and later denied Feltrop's motion for post-conviction relief after an evidentiary hearing. The Supreme Court of Missouri affirmed the conviction and sentence and the denial of post-conviction relief in a consolidated appeal. State v. Feltrop, 803 S.W.2d 1 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). That Court subsequently denied Feltrop's petition for state habeas corpus and motion to recall the mandate. Feltrop then petitioned the district court for a writ of habeas corpus, presenting seventeen grounds for relief. He now appeals the district court's ² denial of that petition.

II. Sentencing Issues

A. The Aggravating Circumstance Instruction

In State v. Preston, 673 S.W.2d 1, 10-11 (Mo. banc), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984), the Missouri Supreme Court acknowledged that applying the "depravity of mind" statutory aggravating circumstance "without proper tethers" might run afoul of the U.S. Supreme Court's decision in Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980), which held that the words "outrageously or wantonly vile, horrible and inhuman," standing alone, do not "impl[y] any inherent restraint on the arbitrary and capricious infliction of the death sentence." ³ Accordingly, the Court in Preston defined factors to be considered in determining whether depravity of mind may be found in a particular case:

mental state of defendant, infliction of physical or psychological torture upon the victim as when victim has a substantial period of time before death to anticipate and reflect upon it; brutality of defendant's conduct; mutilation of the body after death; absence of any substantive motive; absence of defendant's remorse and the nature of the crime.

673 S.W.2d at 11. In this case, the trial court nonetheless charged the bare language of this statutory aggravating circumstance, the only one it submitted to the jury. Feltrop therefore argued to the Missouri Supreme Court that his death sentence must be set aside because this instruction was unconstitutionally vague.

The Missouri Supreme Court agreed that its limiting definition of "depravity of mind" should have been given to the jury. However, relying on Walton, it denied Feltrop relief from his death sentence. The Court held that (i) Missouri law prescribes a "hybrid" sentencing procedure in which the sentencing judge acts as the final sentencer; (ii) the trial court in denying Feltrop's motion for reduction of sentence must be presumed to have applied the limiting depravity-of-mind factors enunciated in Preston; and (iii) the evidence supports the finding that the murder involved depravity of mind as construed in Preston. 803 S.W.2d at 14-17. ⁴ The district court held that this appellate review "was sufficient to cure the jury's unchanneled discretion."

On appeal, Feltrop argues that the district court erred in concluding that the Missouri Supreme Court cured the trial court's failure to give the jury an instruction that narrowed the depravity-of-mind aggravating circumstance. We note that there are two facets of the Missouri Supreme Court's "cure": first, that the jury instruction error was cured by the trial judge in his role as "final sentencer," and second, that the error was also cured by the appellate court's conclusion, based on its independent review of the evidence, that the record supports the jury's depravity-of-mind finding under the proper Preston standard. To prevail on this issue, Feltrop must establish that both of these grounds are constitutionally defective.

1. Feltrop argues that the Missouri Supreme Court's first curative holding--that the trial judge cured the instructional error when it denied Feltrop's motion for reduction of sentence--conflicts with the pronouncement in Walton that, "[w]hen a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process." 497 U.S. at 653, 110 S.Ct. at 3057. But Walton went on to state:

But the logic of [Godfrey and Maynard ] has no place in the context of sentencing by a trial judge.... If the Arizona Supreme Court has narrowed the definition of the "especially heinous, cruel or depraved" aggravating circumstance, we presume that Arizona trial judges are applying the narrower definition.

Id. at 653, 110 S.Ct. at 3057. The Missouri Supreme Court determined that the trial judge is the "final sentencer" when it acts upon a motion for reduction of sentence. We must accept that interpretation of state law, and the Constitution does not require that the jury impose the death sentence or make particular findings necessary to impose that sentence. See, e.g., Clemons v. Mississippi, 494 U.S. 738, 746, 110 S.Ct. 1441, 1447, 108 L.Ed.2d 725 (1990) ("[N]either the Sixth Amendment, nor the Eighth Amendment, nor any other constitutional provision provides a defendant with the right to have a jury determine the appropriateness of a capital sentence."); Walton, 497 U.S. at 647-48, 110 S.Ct. at 3053-54.

Feltrop further contends that the trial judge did not cure the instructional error because the Walton presumption--that a trial judge applies the correct limiting construction in making an aggravating circumstance finding--is inappropriate when the trial judge has failed to give the Preston limiting instruction in charging the jury. However, neither Preston, nor Godfrey which prompted Preston, discussed whether a limiting instruction must be given to the sentencing jury. Rather, those cases concerned the reviewing appellate court's function of...