Gilmore v. Armontrout

• Citation: 861 F.2d 1061
• Decision Date: 10 November 1988
• Docket Number: Nos. 88-1378,88-1517,s. 88-1378
• Parties: George C. GILMORE, Appellee, v. Bill ARMONTROUT, Appellant. George C. GILMORE, Appellant, v. Bill ARMONTROUT, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1061

861 F.2d 1061

George C. GILMORE, Appellee, v. Bill ARMONTROUT, Appellant.

George C. GILMORE, Appellant, v. Bill ARMONTROUT, Appellee.

Nos. 88-1378, 88-1517.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1988.

Decided Nov. 10, 1988.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellant.

Kevin L. Collins, Kansas City, Mo., for appellee.

Before ARNOLD, Circuit Judge, FLOYD R. GIBSON and HENLEY, Senior Circuit Judges.

HENLEY, Senior Circuit Judge.

The State of Missouri appeals and petitioner George C. Gilmore cross-appeals from the district court's order granting Gilmore's 28 U.S.C. Sec. 2254 petition for writ of habeas corpus upon the basis of two of the nine grounds set forth therein, and ordering a new trial in the punishment phase of Gilmore's state capital murder trial, or in the alternative, alleviation of the death sentence imposed. For reasons to be stated, we conclude that Gilmore's challenges to his conviction and sentence do not warrant habeas corpus relief. Accordingly, we reverse the district court's order and reinstate the original sentence.

I.

Gilmore is a state prisoner currently incarcerated at the Missouri State Penitentiary in Jefferson City, Missouri. In March, 1982 he was convicted by jury of capital murder and sentenced to death in connection with the slaying of an elderly woman, Mary Luella Watters. ¹ Gilmore's conviction and sentence were affirmed by the Missouri Supreme Court on direct appeal. State v. Gilmore, 661 S.W.2d 519 (Mo.1983) (en banc), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). Gilmore then filed a motion for state post-conviction relief pursuant to Missouri Supreme Court Rule 27.26, ² which was denied after an evidentiary hearing. The denial of the motion was affirmed by the Missouri Court of Appeals. Gilmore v. State, 712 S.W.2d 438 (Mo.Ct.App.1986).

Thereafter, Gilmore commenced the present action for federal habeas corpus relief. In an amended petition filed June 1, 1987, after the appointment of counsel, Gilmore advanced the claims that: (1) his conviction was obtained in violation of the sixth amendment because he was not represented by counsel at his arraignment and plea; (2) he was forced to wear leg irons in the presence of the jury, in violation of the fifth amendment; (3) his trial attorney rendered ineffective assistance; ³ (4) the state trial court's action of unilaterally striking a juror denied Gilmore a trial by a jury chosen from a cross-section of the population, in violation of the sixth amendment; (5) the prosecuting attorney made improper remarks during his closing argument in the punishment phase of the trial; ⁴ (6) during the punishment phase of the trial, the jury was improperly permitted to view Gilmore's videotaped confession in two unrelated crimes; (7) the imposition of the death penalty constitutes cruel and unusual punishment, in violation of the eighth amendment; and (8) the imposition of the death penalty is arbitrary and excessive, and disproportionate to the sentence imposed in other similar cases. Finally, in a second amended petition filed July 23, 1987, Gilmore advanced the additional claim that during the guilt phase of the trial, the jury was improperly permitted to consider evidence concerning the impact of the crime upon the victim's relatives.

After supplemental briefing by both parties, ⁵ the district court entered an order dated February 26, 1988, directing that Gilmore be given a new trial in the penalty phase of the proceedings or, in the event that the State elected not to give Gilmore a new trial, that he be relieved of the sentence of death and confined for fifty years without parole. Gilmore v. Armontrout, 681 F.Supp. 632, 641 (W.D.Mo.1988).

The district court concluded that the challenged portion of the prosecuting attorney's closing statement was improper and "blatantly prejudicial," depriving Gilmore of a fair trial. The court determined that its consideration of this claim was not precluded despite Gilmore's attorney's failure to object at trial because the prosecutor's statements constituted plain error under Missouri Supreme Court Rule 30.20 and Gilmore's attorney's failure to object was "so grossly negligent that it falls completely outside the standards of Wainwright v. Sykes [433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ]...." 681 F.Supp. at 637. Similarly, although acknowledging that Gilmore presented the claim in his Rule 27.26 motion but did not include it on appeal from the denial thereof, the court concluded that the claim had been exhausted and was not subject to a state procedural default barring review because Gilmore no longer had an available state remedy, and should not be held to the Wainwright standard as a result of his attorney's failure to advance the claim on appeal from the denial of the Rule 27.26 motion, or the trial court's failure to prohibit the argument sua sponte. Using the same analysis, the court determined that Gilmore's claim concerning the jury's allegedly improper consideration of evidence of the impact of the crime upon the victim's relatives was not procedurally barred. The court then concluded that this claim stated a basis for relief pursuant to the principles enunciated in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). 681 F.Supp. at 641. The court dismissed Gilmore's remaining claims on the merits, and both parties appealed.

For reversal, the State of Missouri argues that the district court erred in granting Gilmore's petition because the claim concerning the prosecuting attorney's closing argument is subject to a procedural default barring review and does not rise to the level of a constitutional violation. Similarly, the State contends that Gilmore's claim concerning the allegedly improper admission of evidence is barred by Gilmore's default, does not rise to the level of a constitutional violation, and in any event constitutes harmless error. In his cross-appeal, Gilmore argues that the district court erred in dismissing his claims that his sixth amendment rights were violated because he did not have counsel at arraignment; his fifth amendment rights were violated when he was forced to wear leg irons during the trial; the trial court's dismissal of a prospective juror resulted in the violation of his sixth amendment rights; and that during the sentencing phase, the jury was improperly permitted to view his videotaped confession to two unrelated crimes. We consider each of these arguments in turn.

II.

A. Prosecuting Attorney's Closing Argument in Punishment Phase.

As indicated, the State first contends that the district court erred in granting Gilmore habeas corpus relief upon the basis of his claim concerning the prosecuting attorney's closing argument because the claim is barred by a procedural default and does not rise to the level of a constitutional violation. A brief discussion of the procedural history of Gilmore's claim must precede our consideration of the State's contention that the claim suffers from a procedural default barring federal review.

As noted by the district court, despite the applicability of Missouri's contemporaneous objection rule, see State v. Hayes, 624 S.W.2d 16, 20 (Mo.1981), Gilmore's trial attorney did not object to the prosecutor's closing argument, nor did he raise the issue of the propriety of the closing argument on direct appeal. ⁶ In his Rule 27.26 motion Gilmore did present the claims that the prosecutor's closing argument was impermissible under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and that his trial attorney rendered ineffective assistance in failing to lodge an objection. ⁷ Neither of these claims, however was advanced on appeal from the denial of the motion. ⁸

Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. Sec. 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules. See Engle v. Isaac, 456 U.S. 107, 125, 135, 102 S.Ct. 1558, 1570, 1575, 71 L.Ed.2d 783 (1982). This requirement implicates consideration of both the question whether the petitioner has exhausted all remedies available in the courts of the state at the time the federal habeas corpus petition is filed, see Humphrey v. Cady, 405 U.S. 504, 516, 92 S.Ct. 1048, 1055, 31 L.Ed.2d 394 (1972), and whether he has preserved his claims for federal habeas corpus review by complying with state procedural rules governing their presentation. Engle v. Isaac, 456 U.S. at 125, 126 n. 28, 102 S.Ct. at 1570, 1571 n. 28.

In the instant case, the State does not contest the district court's conclusion that Gilmore has exhausted available state remedies with respect to his claim concerning the propriety of the prosecutor's closing argument. See Gilmore v. Armontrout, 681 F.Supp. at 637 ("Because [Gilmore] no longer has any remedy available to exhaust this claim, the requirement of exhaustion should not be applied inflexibly to bar this Court's consideration of [the] claim."). This court has previously observed that Missouri courts strictly construe the provision in Missouri Supreme Court Rule 27.26 that a successive motion to vacate a sentence shall not be entertained when the grounds presented therein could have been raised in the original Rule 27.26 motion. Lindner v. Wyrick, 644 F.2d 724, 726-27 (8th Cir.), cert. denied, 454 U.S. 872, 102 S.Ct. 345, 70 L.Ed.2d 178 (1981). Because Gilmore advanced his claim concerning the prosecuting attorney's closing argument in his original Rule 27.26 motion, the record clearly indicates that the claim was available to him when the motion was filed. In these circumstances, we agree with the district court that the filing of a successive Rule 27.26 motion advancing this claim would be futile, and that Gilmore has exhausted state remedies with respect to this claim. Employing this same...