Smulls v. Roper, 05-2456.

• Decision Date: 01 November 2006
• Docket Number: No. 05-2456.,05-2456.
• Citation: 467 F.3d 1108
• Parties: Herbert SMULLS, Petitioner-Appellant, v. Don ROPER, Superintendent, Potosi Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

467 F.3d 1108

Herbert SMULLS, Petitioner-Appellant, v. Don ROPER, Superintendent, Potosi Correctional Center, Respondent-Appellee.

No. 05-2456.

United States Court of Appeals, Eighth Circuit.

Submitted: May 18, 2006.

Filed: November 1, 2006.

Cheryle Ann Pilate, argued, Kansas City, MO (Charles M. Rogers and Jeremy S. Weis, Kansas City, MO, on the brief), for appellant.

Stephen David Hawke, argued, AAG, Jefferson City, MO, for appellee.

Before BYE, HANSEN, and SMITH, Circuit Judges.

BYE, Circuit Judge.

A Missouri jury convicted Herbert Smulls of first degree murder and other crimes and sentenced him to death. His convictions and sentence were affirmed on appeal and his motion for post-conviction relief was denied. Smulls then filed this 28 U.S.C. § 2254 petition raising numerous grounds for relief. The district court denied the petition and this court granted a certificate of appealability. We now affirm in part, reverse in part, and remand for further proceedings.

I

On July 27, 1991, Smulls and Norman Brown robbed a jewelry store owned by Stephen and Florence Honickman. In the course of the robbery, Smulls shot Stephen and Florence; Steven died from his wounds and Florence sustained permanent injuries. Smulls was charged with first degree murder, first degree assault, two counts of first degree robbery and two counts of armed criminal action. At his first trial, the jury found Smulls guilty of first degree robbery but failed to reach verdicts as to the remaining counts. Upon retrial, the jury found Smulls guilty of the five remaining counts.

During jury selection at Smulls's second trial, defense counsel objected to the prosecutor's exercise of a peremptory challenge to remove Margaret Sidney from the jury. Counsel identified Sidney as African-American and argued the prosecutor's challenge violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor offered the following explanation for the challenge:

Judge, I made nine strikes. I did strike the juror Ms. Sidney who, I guess, for the record was a black female. My reasons for striking Ms. Sidney are based both upon what I observed during our voir dire and based upon my experience in trying criminal lawsuits, which has exceeded 50 cases in this courthouse including several cases before this Court in the nine years that I have been a prosecuting attorney. My concerns with Ms. Sidney began yesterday. Ms. Sidney was very silent during all of the questioning. I observed at one point during my questioning concerning the death penalty a glare on her face as I was questioning that area. She was seated in the back row, I believe, yesterday. When I looked directly at her and asked that last row a question, she averted her eyes and wouldn't answer my question and wouldn't look at me. That made me very nervous. The only response I was able to get out of Ms. Sidney today was when I asked her about her occupation. At first she responded with what I though [sic] was a very irritated answer. She indicated that she is a mail sorter for Monsanto Company. That she sorts mail for, I believe she said, 5000 people. And her husband works for the post office. And I believe she listed him as a custodian. It's been my experience in the nine years that I've been a prosecutor that I treat people who work as mail sorters and as mail carriers, letter carriers and people who work for the U.S. Post Office with great suspicion in that they have generally — in my experience in many of the trials that I've had — are very disgruntled, unhappy people with the system and make every effort to strike back. In my experience as a prosecutor, in trying cases where I've had several cases and left mail people on the jury, had them result in a hung jury. The most recent of which was a murder case in this courthouse last September, State versus Dana Ruff (phonetically) where a mail carrier was the holdout for a hung jury in that case. I also have several in-laws who are employees of the postal department and even though they are somewhat relatives, I share the same opinion of them. So I treat them with great suspicion. When she glared at me and just her general attitude, which included her outfit — which yesterday, I believe, included a beret and today was a ball cap with sequins on it, I just felt that she wouldn't be a good states [sic] juror. Certainly, not a strong juror in the consideration of death, should we get to that part of the trial. And also I would point out for the Court that I struck juror number eight, Ms. Dillard. I struck her for the very same reason in that she is a letter carrier and works delivering mail. And I though [sic] her attitude was also confrontational. And I did not feel that her answers were ones that would give rise to me believing she would be a strong states [sic] juror. Ms. Dillard, I would point out, is a white female. And I struck her for virtually the same reasons. It's been my experience that when I left postal workers on who seem to have an attitude, based on my interpretation, that I've had bad results. And that's why I struck her.

Appellant's App. at 14-16.

Without waiting for a response from Smulls's lawyer, the trial court overruled the Batson challenge. Defense counsel persisted, however, and argued:

First of all, I've been a trial attorney as long as he has, trying as many cases as he has and I didn't detect any type of attitude from Ms. Sidney. Secondly, he said she remained silent during his questioning during the death qualification. He didn't ask her a direct question. Numerous jurors remained silent during his death question because he didn't ask them direct questions. Ms. Beeson. He didn't ask Ms. Uhlmansiek questions although he did strike her. Ms. Linn, who is a white female, she remained totally silent. I'm the only one who talked to her at all other than Mr. Copper asking her what municipality she lived in, but he did not strike her. So numerous jurors and the record will reflect that, remained silent during Mr. Waldemer's questioning. Once again today when he asked her about her occupation I did not detect any kind of animosity on her part. I think the clothing reasons are clearly pretextural [sic]. I think that there is a case where there was a juror struck on the basis of looking like what the prosecutor called a `due debt.' And the Court found that to be pretextural [sic] and sent it back. That occurred in the City of St. Louis, but I don't have the name of the case. With regard to her being a postal worker, Mr. Waldemer has mentioned that they're at the bottom of the employment rung. I think a lot of postal workers make more money, because they're federal employees, than a lot of people who come in here for jury duty. He said he struck Ms. Dillard because she was a postal worker. She also indicated she knew the victim in this case, Florence Honickman. And to be perfectly honest, I would think that the state might have concerns that she wouldn't like Mrs. Honickman based on Mrs. Honickman's demeanor and based on comments that Mr. Waldemer made about Mrs. Honickman. So that could have very well been part of the reason for striking Ms. Dillard, other than her being a postal employee. So I feel that his reasons were pretextural [sic].

Id. at 16-18.

Without making any on-the-record findings articulating its reasoning, the trial court overruled the Batson challenge. The following morning, Smulls's attorney renewed the Batson challenge and the following colloquy occurred:

MS. KRAFT: Judge, I believe I stated on the record yesterday when I made my record that Ms. Sidney was the only black juror remaining out of the 30.

THE COURT: You made that statement.

MS. KRAFT: Okay.

THE COURT: You see, I have a problem. I don't know what it is to be black. I don't know what constitutes black. And I never, in this Court, no matter what any appellate court may say, I never take judicial notice that anybody is black or that only one person or four persons or eight persons are black. That to me is something that I don't think this Court is wise enough or any other appellate court is wise enough unless there is direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And I believe that's counsel's responsibility to prove who is black and who isn't or who is a minority and who isn't. There were some dark complexioned people on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to say one drop of blood constitutes black. I don't know what black means. Can somebody enlighten me of what black is? I don't know; I think of them as people. I listened to the responses of Ms. Sidney. I watched her attitude very briefly as it may have been, and I'm not going to sit here and say to you that Ms. Sidney is not black. But I'm not going to make a judgment as to whether anybody else on the panel was, so in any event, I'm merely telling you that for the record. I'd rather not even discuss it on the record. But, in any event, I'm going to deny your motion for a mistrial on the basis stated. Are we ready to proceed?

Id. at 26-28.

On appeal, the Missouri Supreme Court, without commenting on the absence of findings, upheld the trial court's denial of the Batson challenge. The Court concluded the trial court did not clearly err because "[r]easons such as these have been found to support a ruling that a trial court did not clearly err[,]" and "[e]ven assuming the prosecutor's reasons for challenging mail sorters and postal workers are non-sensical, this does not establish the reasons are inherently pretextual." State v. Smulls, 935 S.W.2d 9, 15-16 (Mo.S.Ct. 1996) (en banc).

Thereafter, Smulls filed his § 2254 petition. After the district court denied the petition, we granted a certificate of appealability. On...