Roberts v. Bowersox

• Decision Date: 04 June 1998
• Docket Number: No. 96-3789,96-3789
• Citation: 137 F.3d 1062
• Parties: Roy ROBERTS, Appellant, v. Michael BOWERSOX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1062

137 F.3d 1062

Roy ROBERTS, Appellant, v. Michael BOWERSOX, Appellee.

No. 96-3789.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 8, 1997.

Decided March 3, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied June

4, 1998. ^*

Bruce D. Livington, Moscow, ID, argued (Leonard J. Frankel, on the brief), for Appellant.

Stephen D. Hawke, Assistant Attorney General, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, on the brief), for Appellee.

Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

FAGG, Circuit Judge.

During a Missouri prison riot, inmate Roy Roberts restrained an unarmed guard and fended off would-be rescuers while two other inmates, Robert Driscoll and Rodney Carr, stabbed the guard to death with knives honed from metal rulers. Believing eyewitnesses who testified for the State, a jury rejected Roberts's defense of mistaken identity and convicted him of capital murder. Roberts received the death penalty. See Mo.Rev.Stat. §§ 565.001, .006, .008 (1978) (repealed Oct. 1, 1984). The Missouri Supreme Court affirmed Roberts's conviction and sentence, see State v. Roberts, 709 S.W.2d 857(Mo.), cert. denied, 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378 (1986), and affirmed the denial of state postconviction relief, see Roberts v. State, 775 S.W.2d 92 (Mo.1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1506, 108 L.Ed.2d 640 (1990). Roberts then turned to the federal courts and filed a petition for a writ of habeas corpus in March 1990. See 28 U.S.C. § 2254 (1994). The district court denied relief, and Roberts appeals. We affirm.

We grant Roberts's motion to supplement the record with exhibits from the state postconviction proceeding, and turn to the substance of his appeal.

Roberts first asserts his death sentence violates the Eighth Amendment because in explaining the jury's sentencing role throughout the trial, the prosecutor "led [the jury] to believe that the responsibility for determining the appropriateness of [Roberts's] death rest[ed] elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985). The State contends Roberts is barred from asserting this claim, but we disagree. First, the Supreme Court decided Caldwell before Roberts's conviction and sentence became final, so Caldwell is not being applied retroactively on collateral review. See McDonald v. Bowersox, 101 F.3d 588, 597 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2527, 138 L.Ed.2d 1027 (1997). Second, although Roberts did not object to the prosecutor's explanations during the trial, the Missouri Supreme Court reviewed Roberts's Caldwell argument for plain error on direct appeal. See Roberts, 709 S.W.2d at 868-69. Thus, we also review the Caldwell issue for plain error, granting relief only if there is manifest injustice. See Mack v. Caspari, 92 F.3d 637, 641 & n. 6 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1117, 137 L.Ed.2d 317 (1997).

In support of his Caldwell claim, Roberts relies heavily on Driscoll v. Delo, 71 F.3d 701 (8th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996). Driscoll and Roberts, cohorts in the guard's stabbing, were prosecuted separately by the same State's attorney. Like Roberts, Driscoll was convicted of capital murder and sentenced to death. We granted habeas relief to Driscoll, concluding his death sentence violated the Eighth Amendment because the prosecutor misled the sentencing jury into believing the judge was ultimately responsible for the sentencing decision.

Throughout [Driscoll's] trial, the prosecution made statements to the jury that were calculated to diminish the degree of responsibility the jury would feel in recommending a sentence of death. The prosecutor repeatedly referred to the judge as the "thirteenth juror" and explained that the jury's sentence of death would be a mere recommendation to the judge; in his most egregious statements, the prosecutor announced that "juries do not sentence people to death in Missouri," and, at one point, even told jurors it did not matter whether they returned a recommendation for the death penalty because the judge can simply overrule their decision.

Id. at 711. When Driscoll and Roberts were tried, Missouri's capital murder statute permitted imposition of a death sentence only if the jury unanimously voted for death. See Mo.Rev.Stat. § 565.006 (Supp.1982) (repealed effective Oct. 1, 1984). Under Missouri Supreme Court Rule 29.05, the court could "reduce the punishment within the statutory limits prescribed for the offense if [the court found] the punishment [was] excessive." In Driscoll, we held the prosecutor's statements were technically accurate descriptions of Missouri law, but they "were impermissible because they misled the jury [about] its role in the sentencing process in a way that allowed the jury to feel less responsibility than it should for its sentencing decision." 71 F.3d at 713. Contrary to the prosecutor's statement that the jury's recommendation did not matter, we said the jury's decision to recommend a death sentence was "a matter of almost unparalleled importance." Id. The judge could not have sentenced Driscoll to death without the jury's recommendation to do so, and no Missouri judge has ever sentenced a defendant to life imprisonment when the jury has recommended death. See id. & n. 10.

In Roberts's case, the prosecutor also told the jury it would recommend a sentence to the judge, who would make the final sentencing decision. During voir dire, the prosecutor made clear that if the jury recommended life in prison, the judge could not render a death sentence, but if the jury recommended death, the judge could impose either life imprisonment or the death penalty. The prosecutor told the jurors they were not imposing the death penalty, but were giving the judge the opportunity to impose it. The prosecutor explained that the judge is like the thirteenth juror and has veto power. See Roberts, 709 S.W.2d at 868 n. 11 (excerpt of voir dire). Later, while questioning a priest during the punishment phase, the prosecutor asked whether the priest had "any quarrel with the system where the jury itself doesn't actually sentence someone to death but makes a recommendation to the Judge that he can consider it if he wants to, checking into the background of the Defendant?" Finally, during closing argument, the prosecutor said:

[M]y plea to you is not a plea to kill Roy Roberts.... All I want you to do is give [the] Judge ... the right to find out the background of this guy so, in fact, if it is justified he can do it.... I am not asking you to put Roy Roberts to death. I am just asking you to give the Judge the opportunity to study it and make a conscious well thought out decision about what is fair and just.

Contrary to Roberts's contention, the prosecutor's remarks were not misstatements of Missouri law because Missouri Supreme Court Rule 29.05 authorized the judge to reduce a death sentence. See Driscoll, 71 F.3d at 713; Roberts, 709 S.W.2d at 869. Thus, we turn to the question of whether the statements misled the jury.

Despite similarities between the prosecutor's comments in this case and in Driscoll, we believe the jury in Roberts's case was not misled about the significance of its role. It is true that in both cases the prosecutor repeatedly said the jury does not sentence the defendant to death but only recommends it, and the judge is the thirteenth juror and has veto power. In Roberts's case, the prosecutor also implied the judge would have more information than the jury and be better able to make the right sentencing decision. Nevertheless, we believe it is significant that Roberts's attorney informed the jury that no judge in Missouri had ever imposed a life sentence after a jury recommended death. In addition, while Driscoll's jury was told its decision didn't matter, Roberts's jury was not put on the sidelines. Instead, Roberts's jury was accurately informed the judge could not impose the death penalty if the jury recommended life in prison, but if the jury recommended the death penalty, the judge would almost certainly impose it. Further, the jury was instructed it had the "primary duty and responsibility to fix the punishment." Because Roberts's jury was not misled about the significance of its sentencing role, we conclude the prosecutor's statements did not violate Caldwell.

Roberts also contends prosecutorial misconduct led to his conviction and violated his right to due process. According to Roberts, the prosecutor improperly suggested Roberts was in jail for murder, questioned the integrity of Roberts's attorney, said the jury merely recommended a sentence to the judge, and implied the prosecutor had special knowledge. Because the Missouri Supreme Court reviewed this contention for plain error, we do so as well.

Prosecutorial misconduct does not warrant federal habeas relief unless the misconduct infected the trial with enough unfairness to render Roberts's conviction a denial of due process. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471-72, 91 L.Ed.2d 144 (1986); Duvall v. Reynolds, 131 F.3d 907, 933 (10th Cir.1997). Improper prosecutorial remarks violate due process when there is a reasonable probability the remarks affected the trial's outcome. See Newlon v. Armontrout, 885 F.2d 1328, 1336-37 (8th Cir.1989). To decide the effect of a prosecutor's remarks, we examine the totality of the circumstances. See Antwine v. Delo, 54 F.3d 1357, 1363 (8th Cir.1995) (listing factors).

During opening statements, Roberts's attorney told the jury the evidence would show Roberts was not in prison for murder and Roberts had never been convicted of killing anyone. After the State presented its case, however, Roberts's attorney decided not to put Roberts on the stand to introduce evidence about his earlier crimes. During closing argument, the prosecutor questioned the attorney's...