Strong v. Roper

• Decision Date: 13 February 2014
• Docket Number: No. 11–3046.,11–3046.
• Citation: 737 F.3d 506
• Parties: Richard STRONG, Petitioner–Appellant v. Donald ROPER, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

737 F.3d 506

Richard STRONG, Petitioner–Appellant

v.Donald ROPER, Respondent–Appellee.

No. 11–3046.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2013.

Filed: Dec. 12, 2013.

Rehearing and Rehearing En Banc Denied Feb. 13, 2014.

Michael J. Gorla, Saint Louis, MO, and Jennifer Herndon, Florissant, MO, argued, for appellant.

Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.

Before RILEY, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.

WOLLMAN, Circuit Judge.

Richard Strong was convicted of two counts of capital murder and sentenced to death.The Missouri Supreme Court affirmed the convictions and sentence on direct appeal and later affirmed the denial of Strong's motion for postconviction relief.The district court¹ denied Strong's petition for a writ of habeas corpus under 28 U.S.C. § 2254.We granted a certificate of appealability on four of Strong's claims, and we now affirm the denial of the writ.

I.Background

On October 23, 2000, police officers were dispatched to the home of Eva Washington following a disconnected 911 call.The officers knocked on both the front and back doors, but no one responded.Strong eventually came to the back door, where the officers asked about his wife and children.Strong responded that Washington and the children were asleep.He then stepped outside and closed the door behind him.When asked again about Washington and the children, Strong replied that Washington was at work and the children were inside the apartment.The officers asked to check on the children, but Strong informed them that he had locked himself out.Strong then knocked on the door, calling for someone to open it.The officers noticed that Strong was sweating profusely, had dark stains on the knees of his jeans, and had blood on his hands.When no one answered, the officers kicked in the door.Strong ran away.After he was apprehended, Strong told the officers, “[Y]ou should have shot me, they're both dead, I killed them.”

Inside the apartment, the officers found the bodies of Washington and her two-year-old daughter, Zandrea Thomas.The bodies were located on the floor in the back bedroom, where the police also discovered Washington and Strong's three-month-old child, who was unharmed, and a butcher knife.An autopsy revealed that Washington had been stabbed twenty-one times and had endured five slash wounds.Zandrea had been stabbed nine times and had endured twelve slash wounds.

A jury found Strong guilty of two counts of first-degree murder and recommended that Strong be sentenced to death on both counts.The trial court imposed a sentence of death.As set forth above, the Missouri Supreme Court affirmed Strong's convictions and sentence, State v. Strong,142 S.W.3d 702(Mo.2004)(en banc), and later affirmed the denial of Strong's motion for postconviction relief, Strong v. State,263 S.W.3d 636(Mo.2008)(en banc).Following the district court's denial of Strong's petition for a writ, we granted a certificate of appealability on the following issues: (1) whether the denial of Strong's challenges to the prosecutor's peremptory strikes of two African–American venirepersons violated Strong's right to equal protection; (2) whether the admission of Washington's out-of-court statements to a police officer that Strong had assaulted her violated Strong's right of confrontation; (3) whether trial counsel rendered ineffective assistance by failing to investigate, discover, and present to the jury certain mitigating evidence; and (4) whether the prosecutor's use of a PowerPoint presentation during penalty phase closing arguments deprived Strong of his right to a fundamentally fair trial.

II.Discussion

To succeed on a claim for habeas relief under 28 U.S.C. § 2254, an applicant must show that the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d).A state court decision is contrary to the Supreme Court's clearly established precedent “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's]cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.”Williams v. Taylor,529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389(2000).“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner's case.”Id. at 413, 120 S.Ct. 1495.“In other words, it is not enough for us to conclude that, in our independent judgment, we would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable.”Rousan v. Roper,436 F.3d 951, 956(8th Cir.2006).A state court's findings are entitled to a presumption of correctness, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence.28 U.S.C. § 2254(e)(1).

A.Peremptory Strikes

During jury selection, the prosecutor used peremptory strikes to remove from the jury pool Sylvia Stevenson and Luke Bobo, both of whom are African American.Strong, who also is African American, challenged the peremptory strikes under Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).After hearing the prosecutor's race-neutral reasons for the strikes, the trial court overruled Strong's objections.On direct appeal, the Missouri Supreme Court applied Batson and determined that the trial court did not err in denying Strong's challenge to the state's peremptory strikes of Bobo and Stevenson.The federal district court denied habeas relief on this ground, concluding that the state courts had reasonably determined that the prosecutor's reasons were not pretext for discrimination.

“[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race[.]”Batson,476 U.S. at 89, 106 S.Ct. 1712.Batson established a three-step inquiry to determine whether a prosecutor exercised peremptory strikes in violation of the Equal Protection Clause:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race.Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question.Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Miller–El v. Cockrell,537 U.S. 322, 328–29, 123 S.Ct. 1029, 154 L.Ed.2d 931(2003)(citations omitted).“Within this framework, the defendant may rely on ‘all of the circumstances that bear upon the issue of racial animosity’ to show purposeful discrimination.”Cole v. Roper,623 F.3d 1183, 1188(8th Cir.2010)(quotingSnyder v. Louisiana,552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175(2008)).“Striking a black panelist for reasons that apply ‘just as well to an otherwise-similar nonblack who is permitted to serve’ is evidence tending to prove purposeful discrimination.”Edwards v. Roper,688 F.3d 449, 454(8th Cir.2012)(quotingMiller–El v. Dretke,545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196(2005)).

“Whether a peremptory strike was motivated by race is ultimately a question of fact.”Taylor v. Roper,577 F.3d 848, 854(8th Cir.2009)(citingDretke,545 U.S. at 240, 125 S.Ct. 2317).Strong argues that the Missouri Supreme Court's decision involved an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.See28 U.S.C. § 2254(d)(2).Strong's petition can be granted only if “it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge.”Rice v. Collins,546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824(2006).

1.Venireperson Stevenson

We first consider Strong's claim regarding the peremptory strike of Stevenson.Stevenson indicated on the juror questionnaire that she had no minor children.When the prosecutor asked during voir dire whether anyone had a relative who had been convicted of a crime, Stevenson responded that her brother had been convicted of stealing and was imprisoned.She stated that her brother's circumstances would not prevent her from being fair and impartial.Stevenson later told the court that a member of her church worked for the state as a manager for the division of family services and that her niece counseled inmates.When asked whether she would be able to consider equally the punishment of death and life imprisonment, Stevenson replied in the affirmative:

I think it's circumstantial, too.You can't make a decision without hearing the facts, so my opinion, if the facts say so, then I wouldn't have a problem with it.But if the facts don't say it, I cannot go that route.

Over Strong's objection, the prosecutor struck Stevenson from the jury pool.The prosecutor offered the following reasons for his decision: that Stevenson appeared particularly unhappy about sequestration; that she did not have young children or contact with young children; that her demeanor suggested that she was uninterested; that she had a brother in prison; that “she was particularly weak on the death sentence”; and that she mentioned church and religion.The court found those reasons to be race neutral.

Defense counsel responded that Stevenson was similarly situated to Kimberly Keachie, a Caucasian...