Mallett v. Bowersox, 96-3786

• Decision Date: 16 November 1998
• Docket Number: No. 96-3786,96-3786
• Citation: 160 F.3d 456
• Parties: Jerome MALLETT, Appellant, v. Michael BOWERSOX, Superintendent of the Potosi Correctional Center, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 456

160 F.3d 456

Jerome MALLETT, Appellant, v. Michael BOWERSOX, Superintendent of the Potosi Correctional Center, Appellee.

No. 96-3786.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 21, 1998.

Decided Nov. 16, 1998.

Michael J. Gorla, St. Louis, MO, argued (Bernard Edelman, on the brief), for Appellant.

Stephen David Hawke, Jefferson City, MO, argued, for Appellee.

Before BOWMAN, Chief Judge, JOHN R. GIBSON, and BEAM, Circuit Judges.

BOWMAN, Chief Judge.

Jerome Mallett, a prisoner in the custody of the State of Missouri pursuant to a conviction of capital murder, appeals from a final judgment of the District Court ¹ denying a writ of habeas corpus under 28 U.S.C. § 2254. See Mallett v. Delo, ² No. 90-437 C(2) (E.D.Mo. July 29, 1996). We affirm.

I.

We begin with the facts of the crime for which Mallett was tried by a jury, convicted, and sentenced to death, the murder of Missouri state highway patrolman James M. Froemsdorf.

Shortly after 5:30 p.m., on March 2, 1985, Trooper Froemsdorf pulled over a rust-colored 1973 Ford LTD driven by Jerome Mallett. Mallett had been speeding on northbound Interstate 55 in Perry County. Before Trooper Froemsdorf approached the vehicle, Mallett hid his wallet and identification under the front seat. When Trooper Froemsdorf arrived at the side of the vehicle and requested Mallett's driver's license, Mallett replied that he did not have his license with him and falsely claimed to be Anthony Mallett, who is actually petitioner Jerome Mallett's brother. Trooper Froemsdorf handcuffed Mallett and searched the vehicle. He found several items bearing the name "Jerome Mallett," including a Texas driver's license.

Upon returning to his patrol car, Trooper Froemsdorf contacted the highway patrol radio dispatcher, who informed Trooper Froemsdorf that Mallett had four outstanding warrants for probation violations and one outstanding warrant for aggravated robbery. At 5:40 p.m., in what would prove to be his last radio transmission, Trooper Froemsdorf informed the dispatcher that Mallett was in custody and that he needed no assistance. At approximately 6:00 p.m. a passing motorist noticed Trooper Froemsdorf's apparently abandoned patrol car and, upon closer investigation, discovered Trooper Froemsdorf's body.

The events occurring after Trooper Froemsdorf's final transmission and before the discovery of his body were deduced at trial, for the most part, from the injuries suffered by Trooper Froemsdorf and forensic analysis of the interior of the patrol car. Viewed in the light most favorable to the verdict, the evidence showed that after Trooper Froemsdorf led Mallett to the patrol car and placed him in the front passenger seat, he sat in the driver's side seat and began to write a speeding ticket. Trooper Froemsdorf's ticket book containing the partially written ticket later was found on the front passenger seat of the patrol car. Meanwhile, Mallett, aided by a childhood injury to his right thumb allowing him to compress his hand so that it was scarcely larger than the diameter of his wrist, managed to work his right hand out of the handcuffs in which Trooper Froemsdorf had placed him and attacked Trooper Froemsdorf with the back of his still-manacled left hand. When Mallett subsequently was captured, the handcuffs still dangled from his left hand. Upon freeing his right hand, Mallett repeatedly struck Trooper Froemsdorf on the left side of his face, leaving large bruises, numerous abrasions and a serrated cut under his left eye. The severity of the cut near Trooper Froemsdorf's eye suggested the blow would have temporarily blinded him. While Trooper Froemsdorf was unable to see, Mallett drew the trooper's .357 magnum service revolver from the holster on the trooper's right hip. The first shot fired by Mallett grazed Trooper Froemsdorf's right epaulet and shattered the driver's side window of the patrol car. The slug from the second shot, intended for Trooper Froemsdorf's lower left chest, was found imbedded in the trooper's bullet proof vest. The impact of the slug, as evidenced by the major abrasion left on Trooper Froemsdorf's chest, would have slammed Trooper Froemsdorf against the driver's side door and rendered him helpless for a short period of time. In this helpless state, Trooper Froemsdorf slumped backward against the driver's side door and away from the passenger seat, the position in which his body ultimately was found. At point-blank range, as indicated by powder burns later found on Trooper Froemsdorf's body, Mallett fired two more shots into the right side of Trooper Froemsdorf's neck, killing him.

II.

We now proceed to the relevant procedural history of the case.

Mallett was charged in Perry County with the first-degree murder of Trooper Froemsdorf. Because of extensive pretrial publicity, defense counsel moved for a change of venue from Perry County to another county with a substantial number of black residents, making a jury that included black persons more likely. After defense counsel and the State were unable to reach agreement on venue, each party submitted a list of preferred counties. At the conclusion of argument on Mallett's motion, the Perry County court entered an order transferring venue to Schuyler County, a county in which there were no black residents. Neither party had included Schuyler County in its list of preferred counties.

A Schuyler County jury convicted Mallett of the first degree murder of Trooper Froemsdorf. As shown by the verdict form, the jury found three aggravating circumstances in assessing Mallett's sentence: (1) the murder involved depravity of mind and as a result it was outrageously or wantonly vile, horrible, or inhuman; (2) the murder was committed against a peace officer while engaged in the performance of his official duty; and (3) at the time of the murder Mallett had escaped from the lawful custody of a police officer. Based on these aggravating circumstances, the jury imposed the death sentence. On direct appeal, the Missouri Supreme Court affirmed Mallet's conviction and death sentence. See State v. Mallett, 732 S.W.2d 527(Mo.), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987).

Pursuant to Missouri Supreme Court Rule 27.26, ³ Mallet moved for post-conviction relief. Following an evidentiary hearing, the post-conviction court vacated Mallet's conviction and death sentence. On appeal, the Missouri Supreme Court reversed the post-conviction court's order and reinstated Mallett's conviction and death sentence. See Mallett v. State, 769 S.W.2d 77 (Mo.1989), cert. denied, 494 U.S. 1009, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990).

Mallett subsequently filed the present petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court denied habeas relief, and Mallett appeals.

III.

For reversal Mallett, a black man, argues the District Court erred in concluding: (1) Mallett's equal protection, due process, and Sixth Amendment rights were not violated when the state trial court transferred his case to a county in which no blacks resided; ⁴ (2) his constitutional rights were not violated when the jury considered "depravity of mind" as an aggravating circumstance in reaching its decision to impose the death penalty; (3) he was not deprived of his constitutional right to an impartial and disinterested trial judge; (4) his constitutional right to effective assistance of counsel was not violated either at trial or on direct appeal of his conviction and sentence; (5) he was not denied a fundamentally fair trial by the prosecutor's allegedly improper closing argument; and (6) the evidence tending to establish the existence of deliberation, an essential element of first degree murder, was sufficient for a reasonable jury to convict. For the reasons discussed below, we affirm the judgment of the District Court.

We review de novo the District Court's legal conclusions and conclusions regarding mixed questions of law and fact. Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). The District Court's findings of fact are reviewable under the clearly erroneous standard. Id. at 1381-82.

A.

First, we address the question whether the change of venue from Perry County to Schuyler County was consistent with Mallett's Fourteenth Amendment equal protection and due process rights. We are unable to find any authority to support a conclusion that Mallett's Fourteenth Amendment rights were violated by a change of venue to a county without any, or at least a very small number of, black residents from which to draw a jury venire. See Epps v. State, 901 F.2d 1481, 1483 (8th Cir.1990).

In Epps, a panel of this Court rejected a habeas claim nearly identical to the argument Mallett now makes. Epps, a black man, had been convicted of murder in an Iowa state court. Id. at 1482. Because of extensive pretrial publicity, defense counsel requested that venue be changed to another county with a black population. Instead, the state trial court changed venue to a county with no black residents, ⁵ in which Epps subsequently was tried and convicted of felony murder. Id. After unsuccessfully pursuing his state court remedies, Epps filed a pro se habeas petition in the United States District Court for the Southern District of Iowa. Id. at 1483. The district court denied habeas relief, and Epps appealed to this Court. Then, as now, we were unable to find a constitutional right requiring that the population of a county to which venue is transferred include a black segment from which a jury venire may be drawn. Id.

Nonetheless, Mallett argues the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), prohibits, as a violation of the Equal Protection Clause of the Fourteenth Amendment, the transfer of a black defendant's criminal case to a county...