Richardson v. Bowersox

• Decision Date: 10 May 1999
• Docket Number: No. 98-3293,98-3293
• Citation: 188 F.3d 973
• Parties: (8th Cir. 1999) Antonio Richardson, Appellant, v. Michael Bowersox, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 973

188 F.3d 973 (8th Cir. 1999)

Antonio Richardson, Appellant, v. Michael Bowersox, Appellee.

No. 98-3293

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: May 10, 1999

Filed: August 17, 1999

Rehearing and Rehearing En Banc Denied Oct. 8, 1999.

[Copyrighted Material Omitted]

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

Before WOLLMAN, Chief Judge, BEAM, and MURPHY, Circuit Judges.

WOLLMAN, Chief Judge.

Antonio Richardson was convicted of murder and sentenced to death in Missouri state court. He appeals from the district court's ¹ denial of his petition for a writ of habeas corpus under 28 U.S.C. 2254. We affirm.

I.

On the night of April 4, 1991, Richardson, Reginald Clemons, Marlin Gray, and Daniel Winfrey went to the Chain of Rocks Bridge, an abandoned bridge that spans the Mississippi River between Missouri and Illinois, to smoke marijuana. They parked on the Missouri side and walked across to the Illinois side to do the drugs. The marijuana would not light, however, and as they began walking back across the bridge they observed Julie Kerry, age twenty-one, her nineteen-year-old sister Robin Kerry, and the Kerrys' cousin, Thomas Cummins, walking toward the Illinois side.

The groups spoke briefly and then continued on their respective courses towards the opposite ends of the bridge. Upon reaching the Missouri side, Clemons said, "Let's rob them." Gray responded, "Yeah, I feel like hurting somebody." Richardson, Clemons, Gray, and Winfrey then walked back toward the Illinois side and intercepted the Kerrys and Cummins at a bend in the middle of the bridge.

Gray ordered Cummins to the ground, and Richardson and Clemons grabbed the Kerrys. Both girls began screaming and crying, whereupon one of the assailants said, "If you don't stop screaming, I'll throw you off this bridge." Clemons told Winfrey to keep watch over one sister as he and Richardson took turns holding down and raping the other sister. At some point, one of the assailants said, "You stupid bitch, do you want to die?" After they had finished raping her, Richardson led the first sister through a manhole to a concrete pier under the bridge. Clemons and Gray then took turns holding down and raping the second sister as Winfrey kept watch over Cummins.

When they were finished, Clemons ordered the second sister through the same manhole. Gray walked to the Missouri end of the bridge in search of Richardson, unaware that he was under the bridge. Clemons then robbed Cummins and ordered him through the manhole. Clemons then told Winfrey to get Gray and joined Richardson and the others under the bridge. Either Richardson or Clemons then pushed the sisters. from the pier and ordered Cummins to jump into the river seventy feet below. The two then climbed out of the manhole and met Gray and Winfrey near the Missouri end of the bridge. Clemons said, "We pushed them off. Let's go."

After buying cigarettes and food at a gas station, the group returned to a lookout point over the river. As they watched, Gray remarked that the Kerrys and Cummins would "never make it back to shore," and told Clemons that Richardson "was brave for doing that." When they departed, Clemons and Gray warned that they would kill anyone who said anything about the crimes.

Following his plunge into the river, Cummins came to the surface near Julie. She attempted to hold onto him, but he immediately started to go under in the swift current. He let go of her and struggled to shore. After wandering through a deserted part of the city, he came to a highway and was assisted by a passing motorist. He eventually testified against the assailants. Julie's body was found downstream three weeks later. Robin's body has not been found to this day.

Winfrey pleaded guilty to two counts of second-degree murder and agreed to testify against the other assailants in exchange for a recommended thirty-year sentence. Gray and Clemons were convicted of first-degree murder and sentenced to death. See State v. Gray, 887 S.W.2d 369 (Mo.) (en banc), cert. denied, 514 U.S. 1042 (1995); State v. Clemons, 946 S.W.2d 206 (Mo.) (en banc), cert. denied, 118 S. Ct. 416 (1997). Richardson was convicted of first-degree murder for Julie Kerry's death and second-degree murder for Robin Kerry's death. At the penalty phase of Richardson's trial, the jury could not agree on punishment. Pursuant to Missouri law, the court became the sentencer and assessed punishment at death. See Mo. Rev. Stat. 565.030.4. Richardson's direct appeal and petition for state postconviction relief were denied. See 923 S.W.2d 301 (Mo.) (en banc), cert. denied, 519 U.S. 972 (1996). The district court denied his petition for a writ of habeas corpus, filed on December 3, 1996, and this appeal followed.

II.

The district court issued a certificate of appealability to address whether it was constitutional error for the court to: (1) strike three venire persons who were biased against the death penalty; (2) admit evidence of remarks made by the other assailants; (3) limit the scope of trial counsel's closing argument; (4) admit the testimony of Stephanie Whitehorn at the penalty phase; and (5) deny Richardson's request to present additional mitigating evidence prior to the assessment of punishment.

We review the district court's findings of fact for clear error and its conclusions of law de novo. See Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir. 1998). We apply a presumption of correctness to the state court's findings of fact. See 28 U.S.C. 2254(e)(1). We may grant the writ only if the state court's adjudication of the claims resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." Id. 2254(d)(1).

In Long v. Humphrey, No. 98-3409, slip op. (8th Cir. July 14, 1999), we cited with approval the First Circuit's definition of "contrary to," which we summarized as follows: A state court decision is contrary to clearly established law if the controlling case law requires a different outcome either because of factual similarity to the state case or because general federal rules require a particular result in a particular case. Id. at 4 (citing O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998)). We then adopted the Third Circuit's interpretation of the "unreasonable application" prong of section 2254(d)(1). Under the Third Circuit's holding, "'[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.'" Id. (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999) (en banc), petition for cert. filed, 68 U.S.L.W. 3008 (U.S. June 22, 1999)). In determining whether a state court's decision involved an.-5- unreasonable application of clearly established federal law, it is appropriate to refer to decisions of the inferior federal courts in factually similar cases. See id. at 5 (citing Matteo, 171 F.3d at 890). Further,"[i]n making this determination, mere disagreement with the state court's conclusions is not enough to warrant habeas relief." Matteo, 171 F.3d at 890 (quoted in London, slip op. at 5). It is with these standards in mind that we consider Richardson's claims.

A. Guilt Phase Issues

1. Voir Dire

Richardson argues that the trial court erred in striking three venire persons who stated that they would not consider imposing the death penalty if the State did not prove that Richardson was the person who pushed the victims off the bridge. The Supreme Court has held that a juror may be stricken for cause if, upon questioning, the judge believes that his views "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Adams v. Texas, 448 U.S. 38, 45 (1980). A trial judge's determination that a juror should be stricken is a finding of fact that is entitled to considerable deference under section 2254(e)(1). See Hatley v. Lockhart, 990 F.2d 1070, 1072 (8th Cir. 1993); Swindler v. Lockhart, 885 F.2d 1342, 1345-46 (8th Cir. 1989).

Here, the State was entitled to have the jury consider the death penalty upon a verdict of first-degree murder based on accomplice liability. See Mo. Rev. Stat. 565.030; cf. Mo. Rev. Stat. 565.032.3(4) (stating that an accomplice's "relatively minor" participation in the crime is a statutory mitigating factor but not a complete bar to imposing the death penalty). To demonstrate accomplice liability, the State was not required to prove that Richardson himself pushed Julie and Robin Kerry off the bridge. See Jury Instruction No. 6, J.A. at 353. Because the three venire persons at issue in effect stated that they would not follow this instruction, see Trial Tr. at 279 (Cannon) 306 (Pisoni); 311 (Hughes), the trial court did not err in finding that their views would substantially impair their performance as jurors and in striking them from the panel.

2. Confrontation Clause

Richardson claims that the Confrontation Clause was violated when the trial court allowed Winfrey to testify that after the killings Gray said that Richardson was "brave for doing that" and that the victims would "never make it back to shore." In addition, he claims that admitting various inculpatory statements of Clemons and Gray was unconstitutional under Bruton v. United States, 391 U.S. 123 (1968).

Assuming, arguendo, that Gray's statements that Richardson was "brave for doing that" and that the victims would "never make it back to shore" were hearsay admitted in violation of the Confrontation Clause, their admission is subject to harmless-error analysis. See Lilly v. Virginia, 119 S. Ct. 1887, 1901 (1999). If the Missouri Supreme Court reviewed for harmless error under the stricter standard of ...