Johns v. Bowersox

• Decision Date: 19 April 1999
• Docket Number: No. 97-1637,97-1637
• Parties: (8th Cir. 2000) Stephen K. Johns, Appellant, v. Michael Bowersox, Superintendent of Potosi Correctional Center, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 538

203 F.3d 538 (8th Cir. 2000)

Stephen K. Johns, Appellant, v. Michael Bowersox, Superintendent of Potosi Correctional Center, Appellee.

No. 97-1637

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: April 19, 1999

Filed: February 8, 2000

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before RICHARD S. ARNOLD, WOLLMAN,¹ and BEAM, Circuit Judges.²

WOLLMAN, Chief Judge

Stephen K. Johns was convicted of capital murder and sentenced to death for the 1982 murder of a gas station attendant. He appeals the district court's³ denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.

I.

The evidence adduced at trial established the following sequence of events. In January of 1982 Johns told David Smith that he wanted to rob the Onyx gas station in St. Louis, Missouri. Johns told Smith that he "never left any witnesses." In early February of 1982, Johns told Linda Klund, an acquaintance of some four and one-half years' standing, that he planned to rob the station and asked her to drive the getaway car. She agreed to do so.

On the morning of February 18, 1982, Johns called Klund and told her that "he was going to do it that evening." Later that day, Johns purchased fifteen .32 caliber bullets at a sporting goods store. That evening, Klund picked up Johns and his friend Robert Wishon. Klund noticed that Johns was carrying a small handgun. After reviewing the getaway route with Johns, Klund parked the car up the street from the Onyx station and Johns and Wishon went inside. They stole $248 in cash and shot the attendant, seventeen-year-old Donald Voepel, Jr., in the back of the head three times at point-blank range. When they returned to the vehicle, Johns told Klund that they "didn't get as much money as they thought they were going to get." As they drove away, Johns and Wishon threw the money bag onto the highway. When Klund dropped Johns off, he gave her the gun and told her to keep it for him in case he was caught.

The police searched Johns's residence that night and discovered handwritten surveillance information about the gas station. Johns did not return home, however, having called Klund and learned that the police were searching for him. He told Klund to dispose of the gun and went to the home of a friend, Albert Keener. Johns told Keener that he and Wishon robbed the station and that "he himself shot the kid in the head three times." The next day, February 19, Keener told the police where Johns was and that he had confessed to the robbery and murder. Johns was arrested that evening. Shortly thereafter, Klund confessed her role in the robbery and turned over the gun, which forensics experts determined was the .32 caliber revolver used to commit the murder. Klund also showed police the escape route and led them to the discarded money bag. Klund pleaded guilty to robbery; Wishon pleaded guilty to second-degree murder. Johns was charged with robbery and capital murder.

The jury found Johns guilty of capital murder and sentenced him to death. On direct appeal, the Missouri Supreme Court affirmed his conviction and sentence. See State v. Johns, 679 S.W.2d 253 (Mo. 1984) (en banc), cert. denied, 470 U.S. 1034 (1985). His petition for state postconviction relief was denied by the trial court and on appeal. See 741 S.W.2d 771 (Mo. Ct. App. 1987), cert. denied, 486 U.S. 1046 (1988). Johns then filed this petition for a writ of habeas corpus in federal district court in June of 1988. In December of 1993, he filed a motion in the Missouri Supreme Court to recall the mandate. The motion was summarily denied. The district court denied Johns's petition in July of 1996, and this appeal followed.

II.

We issued a certificate of appealability on four issues: (1) whether the jury instruction on deliberation constituted reversible error, (2) whether the government deprived Johns of due process by suppressing material evidence, (3) whether Johns received ineffective assistance of counsel at the penalty phase, and (4) whether an execution more than fifteen years after conviction constitutes cruel and unusual.-4- punishment. Because Johns filed his petition for habeas corpus well before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, we apply the pre-AEDPA standard of review to his claims. See Pruett v. Norris, 153 F.3d 579, 584 n.6 (8th Cir. 1998).

A.

The State submitted the case to the jury on the basis of accomplice liability. Jury instruction number five at trial provided:

If you find and believe from the evidence beyond a reasonable doubt: first, that on or about February 18, 1982, in the City of St. Louis, State of Missouri, the defendant or Robert Wishon caused the death of Donald Voepel, Jr., by shooting him; and second, that the defendant or Robert Wishon intended to take the life of Donald Voepel, Jr.; and third, that the defendant or Robert Wishon knew that he was practically certain to cause the death of Donald Voepel, Jr.; and fourth, that the defendant or Robert Wishon considered taking the life of Donald Voepel, Jr., and reflected upon this matter coolly and fully before doing so, then you are instructed that the offense of capital murder has occurred, and if you further find and believe from the evidence beyond a reasonable doubt: fifth, that with the purpose of promoting or furthering the commission of capital murder, the defendant acted together with or aided or encouraged Robert Wishon in committing that offense, then you will find the defendant guilty of capital murder.

Jury Instr. No. 5, Appellant's Br. at Add. 102. Johns claims that the instruction violated the Eighth, Sixth, and Fourteenth Amendments because it did not require the jury to find that he personally deliberated on the murder.

Under the Eighth Amendment, states may impose the death penalty only on defendants who "kill, attempt to kill, or intend that a killing take place." Enmund v. Florida, 458 U.S. 782, 797 (1982). The Supreme Court has held that under Enmund a federal habeas court "must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant's culpability has been made." Cabana v. Bullock, 474 U.S. 376, 387 (1986) (footnote omitted).

Here, the jury found that even if Johns did not pull the trigger, he "acted together with or aided or encouraged" Wishon "with the purpose of promoting or furthering the commission of capital murder." Jury Instr. No. 5, Appellant's Br. at Add. 102. At a minimum, this showed that Johns intended that a killing would take place. See Fairchild v. Norris, 21 F.3d 799, 803-04 (8th Cir. 1994) (finding that Enmund was satisfied because the defendant was a major participant in the underlying felony, was aware that the co-defendant was carrying a gun, and made no attempt to assist the victim after she was shot). Accordingly, the instruction did not violate the Eighth Amendment.

The Sixth Amendment requires that criminal convictions "rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510 (1995) (citing Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993)). Johns argues that the instruction violated the Sixth Amendment because it did not explicitly require the jury to find that he deliberated on capital murder. The State argues that by requiring the jury to find that Johns assisted Wishon in the killing "with the purpose of promoting or furthering the commission of capital murder" the instruction effectively required the jury to find that Johns deliberated on the killing.

Deliberation was an element of capital murder under Missouri law when Johns was tried and convicted. See Mo. Rev. Stat. § 565.001 (1978). The Missouri case law and model jury instructions, however, did not require an explicit instruction on deliberation at that time. See State v. White, 622 S.W.2d 939, 945-46 (Mo. 1981) (en banc) (holding that finding that the defendant provided assistance "with the purpose of" promoting capital murder was the same as finding that the defendant had the requisite mental state for capital murder); MAI-CR2d 2.12, Note 7 on Use (1983) (suggesting, but not requiring, explicit deliberation language).

The Missouri Supreme Court found on direct appeal that instruction number five effectively required the jury to find deliberation. See Johns, 679 S.W.2d at 259-60. We agree, and accordingly we hold that the instruction did not violate the Sixth Amendment. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998), cert. denied, 119 S. Ct. 808 (1999) (upholding a first-degree murder instruction based on accomplice liability because it was consistent with existing model jury instructions); Thompson v. Missouri Bd. of Probation & Parole, 39 F.3d 186, 190 (8th Cir. 1994) (upholding a first-degree murder instruction based on accomplice liability because it required the jury to find that the defendant "knowingly or purposefully" aided in the killing).

Even if held to be constitutionally deficient, the instruction does not lead to automatic reversal of the conviction, for it is subject to harmless-error analysis. See Neder v. United States, 119 S. Ct. 1827, 1833-34 (1999) (holding that the omission of an element from a jury instruction is not structural error and thus is subject to harmless-error analysis); California v. Roy, 117 S. Ct. 337, 338-39 (1996) (per curiam) (applying harmless-error analysis to an erroneous state first-degree murder instruction). Because the state court did not apply harmless-error analysis, we apply the stricter harmless-error standard of Chapman v. California, 386 U.S. 18 (1967). See Orndorff v. Lockhart, 998 F.2d 1426,...