Powell v. Bowersox, 95-3864

• Decision Date: 19 June 1997
• Docket Number: No. 95-3864,95-3864
• Citation: 112 F.3d 966
• Parties: Reginald L. POWELL, Appellant, v. Michael S. BOWERSOX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 966

112 F.3d 966

Reginald L. POWELL, Appellant, v. Michael S. BOWERSOX, Appellee.

No. 95-3864.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 18, 1996.

Decided May 1, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied June 19, 1997.

Gino F. Battisti, argued, St. Louis, MO, for appellant.

Stacy L. Anderson, Assistant Attorney General, argued, Jefferson City, MO, for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Reginald Powell, a Missouri inmate convicted of two counts of first-degree murder and sentenced to death on both counts, appeals from the district court's ¹ denial of his petition under 28 U.S.C. § 2254. We affirm.

I.

On November 14, 1986, Mr. Powell unexpectedly encountered Calvin Courtney, his stepbrother. Upon recognizing Mr. Courtney, Mr. Powell said, "Oh, I didn't know who it was, because we were getting ready to rob you," and "Man, I have been around all day robbing people." Accompanying Mr. Courtney were brothers Freddie and Lee Miller, who earlier that evening had refused to purchase liquor for Mr. Powell. An argument ensued, and Mr. Powell pushed the Millers to the ground and kicked each of them in the groin, chest, and face. Mr. Powell yanked down one of the brothers' pants and undergarments and kicked him repeatedly in the genitals. When Mr. Courtney attempted to stop the beating, Mr. Powell responded, "My baby needs some Pampers" and resumed his pummeling. Pleading for his life, Lee Miller said, "You can beat me all you want, but don't kill me."

Mr. Powell jumped repeatedly on the Millers' chests, breaking all but their top ribs. He then examined the Millers for valuable items, pulling down Lee Miller's pants while doing so. While the Millers were still alive, Mr. Powell thrust a knife three times into each one's abdomen and chest to a depth of five or six inches. They died from stab-induced bleeding. Shortly thereafter, Mr. Powell commented to some companions that he had "stabbed" and "stuck" the Millers. "Don't bring no knife if you ain't going to use it," he added. He had blood on his shoes and was carrying the bloody knife. Later, in a tape-recorded statement to the police, Mr. Powell confessed to the murders and exclaimed, "You know, we'll say I had the last--the last laugh."

A Missouri jury convicted Mr. Powell on two counts of first-degree murder. After the jury was unable to agree on a sentence, the trial court sentenced Mr. Powell to death on both counts and later denied his motion for a new trial. A second judge subsequently denied his motion for post-conviction relief. The Missouri Supreme Court affirmed the conviction, death sentence, and denial of post-conviction relief. See State v. Powell, 798 S.W.2d 709 (Mo.1990) (en banc ), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). In Powell v. Bowersox, 895 F.Supp. 1298 (E.D.Mo.1995), the district court denied Mr. Powell's request for a hearing and denied all claims for relief asserted in his petition for writ of habeas corpus. The district court later also denied Mr. Powell's motion to amend the judgment under Fed.R.Civ.P. 59(e). Mr. Powell appeals.

II.

Mr. Powell claims first that his trial counsel violated his constitutional right to effective assistance of counsel in a number of ways. He complains that in the trial's sentencing stage counsel did not inquire whether he desired to testify, that in neither the guilt-determination stage nor the sentencing stage of the trial did counsel inform him that he could testify, that in neither stage did counsel advise him to testify, that in both stages counsel decided unilaterally that he would not testify, that in neither stage did counsel inform him that he had the unilateral right to decide whether he would testify, that in neither stage did counsel discuss with him what form his testimony might take, and that in neither stage did counsel discuss with him the possible "ramifications" of any testimony that he might offer. Since Mr. Powell did not assert the last two of these claims at the district court level, we will not address them. See, e.g., Sutton v. Settle, 302 F.2d 286, 288 (8th Cir.1962) (per curiam ), cert. denied, 372 U.S. 930, 83 S.Ct. 876, 9 L.Ed.2d 734 (1963).

A claim of ineffective assistance of counsel involves two showings: First, the petitioner must demonstrate that his or her counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms of competence, and, second, he or she must establish a reasonable probability that but for counsel's unprofessional errors the outcome of the trial would have been more favorable. A failure to make either showing makes further scrutiny unnecessary. See, e.g., Strickland v. Washington, 466 U.S. 668, 687-88, 694, 697, 104 S.Ct. 2052, 2064-65, 2068, 2069-70, 80 L.Ed.2d 674 (1984).

Our inquiry focuses first on the trial's guilt-determination stage, where Mr. Powell argues that counsel should have advised him that he could testify, that counsel should have instructed him to testify, that counsel should not have decided unilaterally that he would not testify, and that counsel should have advised him that he could testify even if counsel did not want him to do so. Mr. Powell says that had he been properly advised, he would have taken the stand and would have discussed his PCP and alcohol usage and the effects that these had on him. He believes that his testimony would have aided his defense of diminished capacity. We disagree.

The jury heard testimony from other witnesses concerning Mr. Powell's state of intoxication and the effect that intoxication could have on one who suffers from Mr. Powell's mental deficiencies. Trial counsel did not believe that Mr. Powell's testimony would add enough favorable information to offset the harm that his taking the stand would do to his defense of diminished capacity. Trial counsel believed that Mr. Powell's competency had improved measurably since the murder, and she feared that he would appear far more competent on the stand than the expert witnesses said he was when he committed the murders.

Counsel's fears were not unfounded. The bulk of the trial testimony indicated that Mr. Powell's mental capacities had improved. His testimony could very well have damaged his defense in the manner that trial counsel feared. Further, had he testified, Mr. Powell would have been subject to cross-examination on all of the grisly details of the double murder, including the matters contained in his taped confession. It is clear from these considerations that there is no reasonable probability that Mr. Powell's testimony would have produced a different result in his trial. He therefore has failed to demonstrate that he was prejudiced by his counsel's alleged shortcomings.

Regarding the penalty phase of his trial, Mr. Powell argues that counsel should have informed him that he could testify, that counsel should have inquired if he desired to testify, that counsel should have affirmatively advised him to testify, that counsel should not have unilaterally decided that he would not testify, and that counsel should have told him that he had the right to decide unilaterally to testify. Had he been given such advice, Mr. Powell maintains, he would have taken the stand and expressed remorse, pleaded for the jury to spare his life, spoken about the circumstances surrounding the murders, discussed his childhood, and generally humanized himself before the jury.

As in the guilt-determination stage, however, had he testified he would have faced a cross-examination in which he most likely would have been forced to discuss every aspect of the double murder, leaving a fresh imprint of the horrific acts that he committed on the minds of the jurors. He also would likely have had to confront his own taped confession, where he stated, as we have already noted, "You know, we'll say I had the last--the last laugh." Further, during the state post-conviction relief hearing, Mr. Powell's counsel exerted more effort than one would hope necessary to extract a statement of remorse from Mr. Powell. A similar difficulty at the penalty stage would have been extremely harmful to Mr. Powell. He has thus failed to demonstrate that trial counsel's actions resulted in prejudice to him.

Given the concerns discussed above and the fact that Mr. Powell's motion for state post-conviction relief contained approximately 100 points and subpoints, along with his charges of ineffective assistance of counsel, we believe that had Mr. Powell's counsel acted as he now maintains she should have and had he testified, he would now be asserting that counsel was ineffective for advising him to take the stand. See, e.g., Payne v....