Harris v. Bowersox

• Decision Date: 14 January 1999
• Docket Number: No. 97-1528,97-1528
• Parties: (8th Cir. 1999) GEORGE B. HARRIS, APPELLANT, v. MICHAEL BOWERSOX; STATE OF MISSOURI, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 744

184 F.3d 744 (8th Cir. 1999)

GEORGE B. HARRIS, APPELLANT, v. MICHAEL BOWERSOX; STATE OF MISSOURI, APPELLEES.

No. 97-1528

U.S. Court of Appeals, Eighth Circuit

Submitted: January 14, 1999

Filed: July 13, 1999

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted] Mark A. Thornhill, Kansas City, Missouri, argued (Gardiner B. Davis and Donald W. Griffin, Kansas City, Missouri, on the brief), for Appellant.

Cassandra Dolgin, Jefferson City, Missouri, argued (Jeremiah W. (Jay) Nixon, Attorney General, on the brief), for Appellees.

Before Loken, Hansen, and Morris Sheppard Arnold, Circuit Judges.

Hansen, Circuit Judge.

A Jackson County, Missouri, jury convicted George B. Harris of first degree murder and armed criminal action. Harris was sentenced to die for the crime. Following an unsuccessful motion for post-conviction relief, the Supreme Court of Missouri affirmed Harris's conviction and sentence. See State v. Harris, 870 S. W. 2d 798 (Mo.) (en banc), cert. denied, 513 U.S. 953 (1994). Harris now appeals the district court's¹ order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1994). We granted a certificate of appealability as to four of the many grounds Harris raised in the district court. Although our reasoning differs from that of the district court in some respects, we affirm the district court's judgment denying habeas relief.

I.

The following facts are taken principally from the opinion of the Supreme Court of Missouri. On March 11, 1989, George Bernard "Baby" Harris was on a lucky streak shooting craps. Having some money to spare, Harris agreed to a "pawn" arrangement in which Harris gave another man $500 in exchange for two automatic weapons, namely an Uzi and a.45 caliber Thompson submachine gun. Harris initially placed the guns in the trunk of his car. While returning to the crap game, Harris became worried that someone might steal the guns. Harris asked Michael Taylor to keep the guns for him. Taylor agreed, and Harris proceeded to Taylor's house.

Michael Taylor shared his house with three other men, Rodney Butler, Ross Talliferro, and Stanley "Hank" Willoughby. When Harris arrived at Taylor's house, he handed Willoughby a box containing the machine guns. As Willoughby walked back toward the house, Butler told Willoughby not to bring the guns into the house. Willoughby then handed the box to Cortez and Anthony Taylor, Michael Taylor's younger brothers. Willoughby told Cortez and Anthony to hide the guns near the house. Harris left, and the younger Taylors hid the box under some bushes in the backyard without telling Willoughby the location.

At around 8:00 p.m. that evening, Harris returned and told Michael Taylor that he wanted his guns. Taylor told Harris he did not know where the guns were stowed, but Harris insisted that he needed his guns immediately. Taylor told Harris to wait for Willoughby to return, and then to ask Willoughby about the guns. Some time later, Harris yelled for Michael Taylor to come downstairs. When Taylor came down, he found several people in his house including Harris, Willoughby, Talliferro, and Jaorlath Potts (also known as Rudi). Harris again asked Taylor for his guns, and Taylor again told Harris to take up the issue with Willoughby. Willoughby explained to Harris that he did not know where Anthony and Cortez Taylor had hidden the weapons. Harris insisted that he wanted the guns immediately, and Willoughby went outside in an effort to locate the weapons. Willoughby could not find the guns and returned about five minutes later. Rodney Butler then took a turn at finding the guns. Sometime during the course of events, Harris was heard to say that he was going to kill Willoughby. Also, sometime that day, Harris told Taylor that he wanted the machine guns to conduct a "ride-by" shooting in retaliation for somebody calling Harris a "punk."

By this point in time most of the people had vacated the living room, only Michael Taylor, Willoughby, and Harris remained. Willoughby told Harris that Harris would have to wait for Anthony and Cortez Taylor to get the guns. Harris again insisted on getting his guns immediately. Willoughby said, "Well, I can't help you." Harris, 870 S. W. 2d at 805. Harris then got up from a chair, drew his.41 caliber handgun, and shot Willoughby in the face. Willoughby staggered next door but died before reaching the hospital. In the meantime, Butler located the guns and placed them on the porch at the house next door and ran inside.

Harris took the guns and left, ending up eventually at the apartment of his girlfriend Sabrina Lowe. Taking the handgun and two machine guns with them, Harris and Lowe then went to a bar called the Champagne Lounge. The Supreme Court of Missouri opinion states that Harris told Lowe that he was looking for Rudi (who we know from the record is Jaorlath Potts) and intended to kill him. See id. Our review of Ms. Lowe's testimony reveals that Harris went to the Champagne Lounge to kill a man named Dale. When Harris was unable to find Dale, he went looking for Rudi. On March 13, 1989, Harris, Sabrina Lowe, and two others fled Kansas City in a van, heading east toward St. Louis. The police caught up with Harris during this trip, and arrested him for committing an armed robbery in Columbia, Missouri. The police also found the gun Harris used to kill Willoughby.

A jury convicted Harris of the first degree murder of Willoughby. During the penalty phase, the jury found five aggravating circumstances, and Harris received a death sentence. With the aid of new counsel, Harris filed a motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 29.15. The post-conviction court denied the motion. On appeal, the Supreme Court of Missouri affirmed Harris's conviction and sentence, and affirmed the denial of post-conviction relief. After exhausting his state court options, Harris filed a section 2254 habeas petition in the district court, raising some 17 claims (exclusive of subparts). In an order dated November 6, 1996, the district court denied Harris's petition in all respects. The court found several of the claims were not properly preserved and thus were procedurally defaulted. The court addressed the merits of each preserved claim, but ultimately concluded that none of the claims warranted habeas relief. The district court denied Harris's motion to alter or amend its prior judgment. This appeal followed.

II.

Initially, we address the scope of our appellate review. On March 16, 1998, we entered an order granting Harris a certificate of appealability as to four specific issues. In particular, we limited our review to the following: (1) the constitutionality of the depravity of mind aggravating circumstance instruction used in Harris's case; (2) the constitutionality of Missouri's reasonable doubt instruction; (3) the constitutionality of the admission of evidence concerning Harris's alleged plans to conduct a drive-by shooting, and his going to the Champagne Lounge for the purposes of killing another person; and (4) whether Harris's trial counsel was ineffective for failing to identify, locate, and present the testimony of a potential defense witness named Ben Brown. Despite our prior order, Harris's brief includes issues beyond the scope of our certificate of appealability. Notwithstanding this fact, we limit our appellate review to the issues specified in the certificate of appealability. See Harris v. Bowersox, No. 97- 1528, order (8th Cir. May 29, 1998). See also Carter v. Hopkins, 151 F.3d 872, 874 (8th Cir.), cert. denied, 119 S. Ct. 524 (1998). In view of this decision, we deny as moot the state's motion to strike those portions of Harris's brief that raise issues not included in our certificate of appealability. See Carter, 151 F.3d at 874 n. 5.

III.

"In determining whether to grant habeas relief, we review the district court's Conclusions of law de novo, and its findings of fact for clear error." Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir. 1998). Additionally, because Harris filed his habeas petition prior to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1218-21 (Apr. 24, 1996), and to our knowledge Missouri has not yet qualified under 28 U.S.C. § 2261 (1996), we review the state court's factual determinations under the pre-AEDPA standard. See Bounds, 151 F.3d at 1118 n. 3. Under that standard, state court fact-findings "are generally presumed correct." Id. at 1118 (citing 28 U.S.C. § 2254(d) (1994)).

A. Depravity of Mind Aggravating Circumstance Instruction

Under Missouri law, in first degree murder cases for which the death penalty is possible, the jury considers specific statutory aggravating circumstances, see Mo. Rev. Stat. § 565.032.2 (West Supp. 1999), any one of which, if found by the jury, is sufficient to sustain a death sentence. During the penalty phase of Harris's murder trial, the trial court presented the jury with five possible aggravating circumstances based on § 565.032.2. The jury found all five circumstances present. We granted a certificate of appealability as to the depravity of mind aggravating circumstance instruction.

Aggravating circumstance number 4, as contained in Instruction 17, reads as follows:

"Whether the murder of Stanley "Hank" Willoughby involved depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman. You can make a determination of depravity of mind only if you find that the defendant killed Stanley "Hank" Willoughby as a part of defendant's plan to kill more than one person and thereby exhibited a callous disregard for the sanctity of all human life."

(J.A. at 287.) Harris contends that this instruction is unconstitutionally vague. The district court agreed but denied relief, concluding rather that any error was harmless...