Mercer v. Armontrout

• Decision Date: 15 September 1986
• Docket Number: No. 81-0977-CV-W-5.,81-0977-CV-W-5.
• Citation: 643 F. Supp. 1021
• Parties: George MERCER, Petitioner, v. Bill ARMONTROUT, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Missouri

643 F. Supp. 1021

George MERCER, Petitioner, v. Bill ARMONTROUT, Warden, Missouri State Penitentiary, Respondent.

No. 81-0977-CV-W-5.

United States District Court, W.D. Missouri, W.D.

September 15, 1986.

Cenobio Lozano, Jr., Harrisonville, Mo., for petitioner.

John Morris, Asst. Atty. Gen., Office of Atty. Gen., Jefferson City, Mo., for respondent.

ORDER

SCOTT O. WRIGHT, Chief Judge.

Pending for decision in this Court is petitioner George Mercer'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 November 9, 1979 in the Greene 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. Mercer, 618 S.W.2d 1 (Mo.1981). Following this adverse decision, petitioner filed a 27.26 motion which was denied and affirmed by the Missouri Court of Appeals in the Southern District. Thus, it would appear that petitioner has exhausted his state remedies as required in order to proceed with this action under § 2254. Petitioner advances the following five claims in his petition for writ of habeas corpus: (1) that members of the jury panel were excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (2) that because of the Witherspoon violation, the jury panel was unconstitutionally "death-qualified"; (3) that the trial court in an unconstitutional fashion submitted to the jury instructions on two statutory aggravating circumstances found to warrant the death penalty; (4) that certain evidence introduced at trial inflamed and prejudiced the jury in violation of petitioner's due process rights; and (5) that the omission of a lesser-offense instruction on first degree murder deprived him of his Sixth and Fourteenth Amendment rights.

Although alleging that the third and fourth claims above were not properly raised in state proceedings, the State has waived any such exhaustion defect and consents to this Court's adjudication of all five issues raised. Under principles of comity, it is proper for this Court to accept a waiver of exhaustion. Purnell v. Missouri Dept. of Corrections, 753 F.2d 703, 710 (8th Cir.1985). However, for the reasons set forth below, the petition for writ of habeas corpus will be denied.

FACTS

The appalling facts of this case are well reported in the Missouri Supreme Court's opinion, State v. Mercer, 618 S.W.2d at 3-4, and are abbreviated here. The evidence established that on the evening of August 30, 1978, defendant George "Tiny" Mercer was drinking with friends at a lounge in Grandview, Missouri. Mercer told his friends that he wanted to go to bed with the waitress, Karen Keeton, whom he did not know. One of the friends, however, was acquainted with her, and later that night he brought Ms. Keeton to the petitioner's home. Mercer forced her to have sex with him by threatening her with a sawed-off shotgun. The petitioner further compelled Ms. Keeton to perform oral sex on one of his friends, David Gee. There was evidence that the petitioner asked another friend present, Steven Gardner, what to do with the woman, whereupon Gardner instructed him to "kill the bitch." Mercer replied that he would do so and would "get rid of the body." Mercer then grabbed Ms. Keeton about the throat, hollering "Die, you leaky cunt bitch. Die." Finally, he struck her with his fists and strangled her to death. After this, the petitioner placed the body in a truck with the aid of John Campbell, and drove to a field where the body was dumped.

At that time, Mercer had a rape charge pending against him which was filed by a 17-year-old girl. When defendant returned from dumping Ms. Keeton's lifeless body in the field, he remarked to Campbell that he wouldn't have "been on any charges" if he had killed "that leaky cunt 17-year-old like I did her."

Upon returning to defendant's home, the shotgun was given to Campbell to hide and Ms. Keeton's purse was burned. A few weeks later, Campbell and his attorney reported to the authorities and found Ms. Keeton's badly decomposed body, which was identified by her teeth.

OPINION

1. Violation of Witherspoon

Petitioner Mercer charges that the trial court improperly excluded for cause five prospective jurors who expressed conscientious opposition to the death penalty. He contends that these venire persons were excused for merely voicing "general objections" to the death penalty. Consequently, petitioner claims that the exclusion of these venire persons violates the constitutional standards set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Mercer further asserts that these potential jurors' responses were equivocal as to their ability to impose the death sentence in certain circumstances.

Witherspoon, upon which petitioner relies, held that

"A sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction."

Id. at 522, 88 S.Ct. at 1777. However, Witherspoon's holding has been limited by later United States Supreme Court cases. The current standard, as set forth in Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980), is whether the juror's views

"would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."

Accord Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985).

On direct appeal, the Missouri Supreme Court reviewed the voir dire questions and answers of the five excused venire persons and determined that each had made it "unmistakably clear" that they would not impose the death penalty under any circumstances. State v. Mercer, 618 S.W.2d at 7.

On petition for habeas corpus, the question of challenge of a prospective juror for bias is a factual issue. Witt, 105 S.Ct. at 855. A federal court reviewing the petition under 28 U.S.C. § 2254(d) is required to accord a presumption of correctness to state court's findings of fact. Id. at 853. See also Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1981). Thus, in determining whether this venire person would be able to "faithfully and impartially" apply the law, deference must be paid to the trial judge who was able to personally observe the juror. Witt, 105 S.Ct. at 853. See Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984). The Missouri Supreme Court found that a certain venire person's response "I don't think so" was not equivocal; but, rather, was common vernacular to express a negative. State v. Mercer, 618 S.W.2d at 7. Thus, the Court finds no basis for overturning the state court's factual findings on the issue of exclusion of jurors for bias against the death penalty.

2. Death Qualification of Jury

Mercer alleged that the "death qualification" of the jury panel at his trial did not result in the selection of an impartial jury and, thus, violated the Sixth Amendment of the United States Constitution. This argument, however, was expressly rejected in Lockhart v. McCree, ___ U.S. ___, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), where the United States Supreme Court overruled the Eighth Circuit decision of Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985). Lockhart held that the removal of prospective jurors who possess a strong opposition to the death penalty does not violate the Sixth Amendment right to a jury selected from a fair cross-section of the community.

Therefore, Mercer's second point is not a basis for issuing a writ of habeas corpus.

3. Challenge to Aggravating Circumstances

Mercer also argues that Missouri's construction of Mo.Rev.Stat. § 565.012.2(7) and (6)¹ violated his constitutional right under the Fifth, Sixth, Eighth and Fourteenth Amendments to be protected from cruel, arbitrary and capricious sentencing procedures.

Section 565.012.2 sets forth ten enumerated aggravating circumstances, one of which must unanimously be found to be supported by evidence in order for the jury to impose the death penalty. Here, petitioner challenges the constitutionality of the application of the "depravity of mind" and "murder as an agent" provisions.

a. § 565.012.2(7): "Depravity of Mind"

Mo.Rev.Stat. § 565.012.2(7) directs the jury to consider as an aggravating circumstance in assessing punishment in a capital case whether

the offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind.

The facial validity of this provision has been upheld by the Missouri Supreme Court. E.g. State v. Newlon, 627 S.W.2d at 606 (Mo.), cert. denied 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982); State v. Blair, 638 S.W.2d 739 (Mo.), cert. denied 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1982). Still, petitioner urges that the jury must expressly find either torture or aggravated battery to satisfy § 565.012.2(7) unless the instructions provide other guidance concerning the meaning of the terms "depravity of mind" or "wantonly vile or inhuman." Otherwise, Mercer contends that the provision is constitutionally flawed as overbroad, giving the jury "a roving commission to decide for itself what does or does not constitute an aggravating circumstance under the statute."

In support of his position, Mercer cites Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Godfrey held that the Georgia Supreme Court failed to apply a constitutional construction to the terms "outrageously or wantonly vile, and depravity of mind." However, as the Missouri Supreme Court noted, the facts of this case greatly differ from the Godfrey fac...