Gilmore v. Armontrout

Decision Date26 February 1988
Docket NumberNo. 86-4583-CV-C-5.,86-4583-CV-C-5.
PartiesGeorge C. GILMORE, Petitioner, v. Bill ARMONTROUT, Respondent.
CourtU.S. District Court — Western District of Missouri

Kevin L. Collins, Shook, Hardy & Bacon, Kansas City, Mo., for petitioner.

Stephen Hawke, Missouri Atty. Gen.'s Office, Jefferson City, Mo., for respondent.


SCOTT O. WRIGHT, Chief Judge.

Pending for decision in this Court is petitioner George C. Gilmore's application for habeas corpus under 28 U.S.C. § 2254. Petitioner is in the custody of the Missouri State Penitentiary, pursuant to a conviction of capital murder on May 6, 1982 in the Osage County Circuit Court. The petitioner was subsequently sentenced to death.

Petitioner appealed directly to the Missouri Supreme Court, which affirmed the conviction. See State v. Gilmore, 661 S.W. 2d 519 (Mo.1983) (en banc). Following this adverse decision, petitioner filed a 27.26 motion which was denied and affirmed by the Missouri Court of Appeals, Eastern District. See Gilmore v. State, 712 S.W.2d 438 (Mo.Ct.App.1986). Petitioner advances the following nine claims in his petition for writ of habeas corpus: (1) petitioner was not represented by counsel at his arraignment and plea, in violation of his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution; (2) petitioner was forced to wear leg irons in the presence of the jury throughout his trial; (3) petitioner was denied effective assistance of counsel at his trial; (4) petitioner was denied a trial by a jury chosen from a cross-section of the population; (5) the prosecutor's closing argument was improper; (6) the jury was allowed to consider evidence of other crimes in reaching its decision to impose the death penalty; (7) the death sentence constitutes cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution; (8) the death sentence is excessive under the circumstances of this case; and (9) the jury was allowed to consider improper evidence in reaching both its decisions to convict and to impose the death penalty.1 For the reasons set forth below concerning effective assistance of counsel and the prosecutor's closing argument, the petition for writ of habeas corpus will be granted and Petitioner shall receive a new trial in the penalty phase of the proceedings or, in the alternative, be relieved of his unconstitutional sentence of death.


The morbid facts of this case are lucidly detailed in the Missouri Supreme Court's opinion, State v. Gilmore, 661 S.W.2d at 521-22, and are abbreviated here. The evidence established that the petitioner was consumed with the idea that elderly people living in rural areas left substantial sums of money in their homes, rather than depositing it in banks. This idea led to the early morning murder of Mary Luetta Watters of Robertsville, Missouri on August 24, 1979. When the petitioner and his two cohorts arrived at Mrs. Watters' home, they cut the outside telephone wire, threw rocks in the windows, and banged on the door, eventually kicking it in. The three men, finding Mrs. Watters sitting on her bed, asked her for money, but she had none. While in the process of ransacking Mrs. Watters' home, one of the men referred to the petitioner by name, calling, "What do we do now, George?" This use of petitioner's name invoked a preconceived plan to kill the witness/victim if any of the three men were identified in any way. Therefore, pursuant to this plan, petitioner shot Mrs. Watters twice in the heart. The three men then left for Texas in possession of Mrs. Watters' police scanner which was pawned for $20 and her shotgun which was traded for $20 worth of gasoline. Following petitioner's return to Texas, the evidence indicated that petitioner mocked Mrs. Watters' last words and bragged about her killing to his relatives.

I. Petitioner was not represented by counsel at arraignment

Before dealing with the specific grounds on which petitioner's writ of habeas corpus is based, it is necessary to consider the issue of exhaustion. Under 28 U.S.C. § 2254(b), the petitioner has an obligation to exhaust state remedies before seeking relief in federal court. In the present case, respondent argues that the petitioner has failed to present to the state courts his argument that he was denied representation by counsel at his arraignment.

The United States Supreme Court has outlined the purpose of the exhaustion doctrine as "affording the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary." Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986) citing Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982). In the Eighth Circuit, the exhaustion requirement has been interpreted to mean that a petitioner must have the chance to fairly present to the state courts the "substance" of his federal habeas corpus claims. Little v. Armontrout, 819 F.2d 1425, 1428 (8th Cir. 1987) citing Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed. 2d 438 (1971).

It is the opinion of this Court that petitioner's pro se brief and argument filed in the Missouri Supreme Court, appealing the trial court's judgment of the capital murder conviction and death sentence, sufficiently provided state court review. In fact, the Missouri Supreme Court opinion, State v. Gilmore, 661 S.W.2d at 524, touches the fact that petitioner was not appointed counsel until 15 days after his not guilty plea at the arraignment. This is a fair presentation of the substance of the federal habeas corpus claim, thus fulfilling the Eighth Circuit standard set out in Little v. Armontrout, supra. This Court remains unpersuaded by the respondent's argument that this claim is procedurally barred. Therefore, this analysis will continue, assuming federal court review is proper.

The petitioner argues that his conviction was unconstitutional under the Sixth and Fourteenth Amendments to the United States Constitution because he was not represented by counsel at the time of his arraignment and plea. The petitioner cites two cases, both easily distinguished, in support of this proposition.

First of all, petitioner cites State v. Scott, 404 S.W.2d 699, 702 (Mo.1966), in which the Missouri Supreme Court found that arraignment is a "critical stage" in a criminal proceeding, requiring appointment of counsel. Petitioner is correct in stating that the Missouri Supreme Court had previously so held. This argument is fatally flawed, however, in light of subsequent rulings. For example, one year after Scott, the Missouri Supreme Court held that "The rule requiring counsel upon arraignment is not inflexible; it is not required where, as here, no later prejudice could possibly result from the absence of counsel. The absence of counsel during arraignment is not, per se, a violation of the Sixth Amendment." State v. Benison, 415 S.W.2d 773, 775 (Mo.1967). See also State v. Donnell, 430 S.W.2d 297, 300 (Mo. 1968) (absence of counsel during arraignment not a per se Sixth Amendment violation); McClain v. State, 448 S.W.2d 599, 602 (Mo.1970) (absent showing of prejudice, absence of counsel is not constitutional error).

The petitioner also cites the case of Hamilton v. State of Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961), in which the United States Supreme Court held that under Alabama law arraignment is a critical stage of criminal procedure. The Hamilton case was distinguished by the Eighth Circuit Court of Appeals in McClain v. Swenson, 435 F.2d 327, 330 (8th Cir.1970). The Eighth Circuit noted that, in Missouri, if there is no showing of prejudice due to the absence of counsel or a showing that the State gained some advantage, absence of counsel at arraignment is not prejudicial per se. Id. at 330-31.

The petitioner in this case is requesting this Court to grant a new trial because he was not represented by counsel during his arraignment. He argues that his inability to assert a Chapter 552 defense (mental disease or defect) resulted in prejudice to him. The Missouri Supreme Court considered this claim on direct appeal and found that the petitioner was not prejudiced by lack of this defense. State v. Gilmore, 661 S.W.2d at 524. Further, petitioner was unable to successfully assert this defense in any of his other cases because seven psychiatric evaluations failed to disclose a mental disease or defect. See State v. Gilmore, 681 S.W.2d 934, 940 (Mo. 1984) (en banc). Since there is no evidence to support a Chapter 552 defense, petitioner has failed to demonstrate any prejudice due to absence of counsel at the time of his arraignment.

It is the opinion of this Court that there was no constitutional error committed due to petitioner's absence of counsel at arraignment. In the alternative, it is clear that even if there were an error, it was harmless beyond a reasonable doubt. The United States Supreme Court has recognized that constitutional errors are a possibility in criminal proceedings. It has, however, declined to require an automatic reversal of convictions unless the errors or defects affect the substantial rights of the parties. Chapman v. State of California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). The Supreme Court has taken a position which advocates tailoring relief appropriately to fit the circumstances. United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981). This position was adopted by the Eighth Circuit in United States v. Solomon, 679 F.2d 1246, 1250-51 (8th Cir.1982).

In applying these concepts to the case at bar, it is the opinion of this Court that a new trial would not be warranted by the circumstances surrounding petitioner's absence of counsel. There has been no...

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2 cases
  • Simmons v. Lockhart
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • March 21, 1989
    ...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. 632, 637. He granted habeas and the Court of Appeals The district court declined to undertake the cause and prejudice analysis in light of its det......
  • Gilmore v. Armontrout
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 10, 1988
    ...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 imprope......

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