Gilmore v. Armontrout, Nos. 88-1378

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore LAY; LAY, Chief Judge, with whom HEANEY, Senior Circuit Judge, and McMILLIAN
Citation867 F.2d 1179
PartiesGeorge C. GILMORE, Appellee, v. Bill ARMONTROUT, Appellant. George C. GILMORE, Appellant, v. Bill ARMONTROUT, Appellee.
Decision Date21 February 1989
Docket NumberNos. 88-1378,88-1517

Page 1179

867 F.2d 1179
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.
Feb. 21, 1989.

Prior report: 8th Cir., 861 F.2d 1061.

Before LAY, Chief Judge, HEANEY, * Senior Circuit Judge, and McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges.

ORDER DENYING PETITION FOR REHEARING EN BANC.

The petition for rehearing en banc has been considered by the court and is denied by reason of the lack of majority of active

Page 1180

judges voting to rehear the case en banc. Chief Judge Lay, Judges Heaney and McMillian, dissent from the denial of the petition to rehearing the case en banc.

The petition for rehearing is also denied by the court.

LAY, Chief Judge, with whom HEANEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge, join, specially dissenting.

I respectfully dissent.

The legal prejudice involved in the prosecutor's misleading and inaccurate argument clearly undermined the accuracy of Gilmore's sentencing process. The procedural bar of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is applicable only where the claim is "devoid of [constitutional deficiencies which] undermine[ ] the accuracy of the guilt or sentencing determination." Smith v. Murray, 477 U.S. 527, 538-39, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). As such, the principles of Wainwright do not apply in this case. 1

Page 1181

Id. Furthermore, the error of counsel in failing to make a contemporary objection to the constitutional error involved was so egregious and prejudicial in and of itself that it clearly constituted ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

I find totally inappropriate the following emphasized portion of the prosecuting attorney's closing argument:

If you put this man in the penitentiary for a period of fifty years without probation--or without parole, you haven't punished him. He's been to the penitentiary before. In fact, he's escaped from it. And also you have absolutely no guarantee that the legislature down the road, here, won't change its mind, that they won't pass another law saying that you can let someone who's been convicted like this defendant out of jail before the fifty years are up, or the governor could commute his sentence.

The panel opinion concluded that "no impropriety was committed in th[is] matter sub judice," citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). This conclusion is in error. Additionally, the panel ignored the district court's analysis of Missouri cases and held that Missouri case law does not bar such an argument. This was likewise clear error.

Two Supreme Court cases address this issue: Ramos, 463 U.S. 992, 103 S.Ct. at 3448, and Caldwell, 472 U.S. 320, 105 S.Ct. at 2635. In Ramos, the United States Supreme Court held that a California law requiring jury instruction indicating that a sentence of life without parole could be commuted by the Governor did not violate the eighth and fourteenth amendments. In so holding, Ramos did not go so far as to mandate use of such an instruction. Rather, "[t]he Court repeatedly emphasized that the instruction was a permissible choice for the [S]tate to make." State v. McDonald, 661 S.W.2d 497, 518 (Mo.1983) (en banc) (emphasis in original) (Blackmar, J., concurring in part and dissenting in part). 2

Page 1182

The panel feels that Gilmore's reliance upon Caldwell is misplaced because the comments here were not, in their opinion, misleading. In addition, the panel places emphasis, via Caldwell, on the fact that the trial court in the present case submitted a curative instruction. 3 I disagree with both of these assessments.

Ramos holds that a Governor's power of commutation of a life sentence is not an improper consideration for a jury. This is because such a statement, although admittedly speculative in nature, is factually accurate and not misleading. Ramos, 463 U.S. at 1004 & n. 19, 1009, 1012, 103 S.Ct. at 3455 & n. 19, 3457, 3459. In the present case the argument of the prosecutor tells the jury that in addition to the Governor's power to commute the sentence, the legislature may possibly do the same. This is clearly inaccurate and misleading.

In Missouri, only the executive branch has the power of clemency to commute a sentence. Mo. Const. art. IV, Sec. 7; see also Mo.Rev.Stat. Sec. 217.800 (1982); State v. Sloss, 25 Mo. 291 (1857) (held pardoning power belongs exclusively to the executive branch of government and cannot be exercised by the legislative branch); State v. Todd, 26 Mo. 175 (1857) (same); State ex. rel Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716 (1947) (en banc); Durham v. State, 751 S.W.2d 808 (Mo.Ct.App.1988). To suggest that the legislature has the authority to, and possibly will, "pass another law saying that you can let someone who's been convicted like [Gilmore] out of jail before the fifty years are up" is therefore not only a misleading statement, it is factually inaccurate. Such an idea has never been recorded in Missouri. Indeed such an attempt was explicitly struck down by the Supreme Court of Missouri in the companion cases of Sloss and Todd. In 1857 the Missouri general assembly passed an act that purported to relieve persons from the penalties for violation of a then-existing dram shop act. The court held this attempted exercise of the pardoning power by the legislature unconstitutional, noting: "There can be no question as to the nature of the act under consideration. It is as effectually a pardon as though it were one in form under the great seal of the state. Its being clothed with the forms of legislation can not vary its nature and effect." Sloss, 25 Mo. at 294. See also Todd, 26 Mo. 175 (1857) (citing with approval the reasoning articulated in Sloss ).

Page 1183

Nor should the statement be reconciled to harmless speculation. The jury is told that in addition to the Governor another branch of state government may reduce Gilmore's possible life sentence and let him out on the streets. This conveys the false, mental picture to the lay juror that there exist two distinct and independent possibilities that Gilmore's life sentence would be commuted. This clearly enhances the...

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4 practice notes
  • Bannister v. Armontrout, No. 87-0637-CV-W-9.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • April 30, 1992
    ...that the Missouri legislature might modify parole statutes. In Gilmore v. Armontrout, 861 F.2d 1061, 1067 n. 2 (8th Cir.1988), aff'd, 867 F.2d 1179 (8th Cir.1989) (en banc), the Eighth Circuit Court of Appeals stated: "Nor do we believe that Missouri case law prohibits a capital sentencing ......
  • Hill v. Lockhart, No. PB-C-92-240.
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • April 30, 1992
    ...upon a defendant's federal constitutional rights. Gilmore v. Armontrout, 861 F.2d 1061, 1073 (8th Cir.1988), reh. denied en banc, 867 F.2d 1179 (8th Cir. 1989) (Lay, Heaney, and McMillian, dissenting). While these cases may be interesting from an academic standpoint, they have no relevance ......
  • Justus v. Murray, No. 89-4005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 20, 1990
    ...defaulted, was correct. 5 For a similar analysis, see Gilmore v. Armontrout, 861 F.2d 1061, 1064-66 (8th Cir.1988), reh. den. en banc, 867 F.2d 1179, cert. denied, ---U.S. ----, 109 S.Ct. 3176, 104 L.Ed.2d 1037...
  • Newman v. Frey, No. 88-2155
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1989
    ...851 F.2d 1085, 1092 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989). But see Gilmore v. Armontrout, 867 F.2d 1179, 1180 n. 1 (8th Cir.1989) (Lay, C.J., dissenting from Order Denying Petition for Rehearing En Banc). To overcome the procedural bar, Newman mu......
4 cases
  • Bannister v. Armontrout, No. 87-0637-CV-W-9.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • April 30, 1992
    ...that the Missouri legislature might modify parole statutes. In Gilmore v. Armontrout, 861 F.2d 1061, 1067 n. 2 (8th Cir.1988), aff'd, 867 F.2d 1179 (8th Cir.1989) (en banc), the Eighth Circuit Court of Appeals stated: "Nor do we believe that Missouri case law prohibits a capital sentencing ......
  • Hill v. Lockhart, No. PB-C-92-240.
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • April 30, 1992
    ...upon a defendant's federal constitutional rights. Gilmore v. Armontrout, 861 F.2d 1061, 1073 (8th Cir.1988), reh. denied en banc, 867 F.2d 1179 (8th Cir. 1989) (Lay, Heaney, and McMillian, dissenting). While these cases may be interesting from an academic standpoint, they have no relevance ......
  • Justus v. Murray, No. 89-4005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 20, 1990
    ...defaulted, was correct. 5 For a similar analysis, see Gilmore v. Armontrout, 861 F.2d 1061, 1064-66 (8th Cir.1988), reh. den. en banc, 867 F.2d 1179, cert. denied, ---U.S. ----, 109 S.Ct. 3176, 104 L.Ed.2d 1037...
  • Newman v. Frey, No. 88-2155
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1989
    ...851 F.2d 1085, 1092 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989). But see Gilmore v. Armontrout, 867 F.2d 1179, 1180 n. 1 (8th Cir.1989) (Lay, C.J., dissenting from Order Denying Petition for Rehearing En Banc). To overcome the procedural bar, Newman mu......

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