Young v. Bowersox

• Decision Date: 04 December 1998
• Docket Number: No. 97-3775,97-3775
• Parties: Mose YOUNG, Appellant, v. Michael BOWERSOX, Superintendent, Potosi Correctional Center, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1159

161 F.3d 1159

Mose YOUNG, Appellant, v. Michael BOWERSOX, Superintendent, Potosi Correctional Center, Appellee.

No. 97-3775.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 21, 1998.

Decided Dec. 4, 1998.

Joseph Margulies, Minneapolis, Minnesota, argued (Michael D. Burton, on the brief), for Appellant.

Michael Joseph Spillane, Assistant Attorney General, argued, Jefferson City, Missouri, for Appellee.

Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

Mose Young was convicted and sentenced to death for the murder of three men in a St. Louis pawn shop. After unsuccessful state appeals, he petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that numerous aspects of his trial violated his constitutional rights. The District Court ¹ denied the application, and Young now appeals on three grounds. First, he argues that he received ineffective assistance of counsel because his attorney failed to object to the prosecutor's use of peremptory challenges to exclude black people from the jury. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Second, he argues the trial judge should have granted a mistrial because of an unanswered question by the prosecutor directed to the defendant on cross-examination, which, Young argues, improperly implied that he had committed prior violent acts. And third, he claims he was denied due process by several allegedly improper remarks made by the prosecutor during closing arguments in the penalty phase of the trial. We find no merit to Young's arguments and affirm.

The facts concerning the crime itself are not relevant to the issues on appeal, except to point out that Young, who is black, was charged with shooting and killing three men on February 8, 1983.

I.

Young's first argument relates to the failure of his trial attorney to object to what he contends was the prosecutor's racially discriminatory use of peremptory challenges. Counsel's trial notes indicate the prosecutor used all nine of his peremptory strikes against black veniremen. ² Counsel did not object to this tactic, although he claimed he was well aware of the state prosecutor's practice of excluding black people from juries, had objected to this practice in the past, and had intended to do so in this case. Young claims that this oversight deprived him of the effective assistance of counsel and resulted in a structural defect that tainted the entire trial.

In order to prevail on a claim of ineffective assistance of counsel, Young must show that his attorney's assistance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find it unnecessary to discuss the reasonableness of counsel's conduct because, in any event, Young cannot show he was prejudiced by this oversight. As Strickland makes clear, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Young cannot satisfy the prejudice requirement and has not attempted to do so. Instead, he urges this Court to view his counsel's failure to lodge the Batson objection as a "structural defect" which is presumptively prejudicial. According to Young, a Batson error is a structural defect which renders the entire trial unreliable, and it necessarily follows that prejudice should be presumed. Otherwise, Young argues, he is forced into the impossible position of showing how the outcome of the trial would have been different in the absence of a structural defect.

We cannot accept this position. This case is controlled by Wright v. Nix, 928 F.2d 270 (8th Cir.1991). In Wright, we were also confronted with a defendant whose attorney had failed to object to the prosecutor's use of peremptory challenges to exclude non-whites from the jury. ³ Because the defendant Wright had failed to raise this issue properly, he was required to show both cause and prejudice for his omission in order to attack his state conviction in a federal court. Wright argued that the ineffective assistance of his trial counsel was the cause of the omission, and thus he had to satisfy the two-part Strickland test. Like Young, Wright argued that requiring him to show prejudice in the sense of a reasonable probability of a different outcome asked the impossible. We rejected Wright's attempt to avoid the prejudice requirement of Strickland. We explained that an error by counsel does not warrant setting aside the judgment of a criminal proceeding on collateral attack if the error had no effect on the judgment. Wright, 928 F.2d at 273 (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

A passage from the concurring opinion in Wright is relevant here:

[Wright] has not shown that the individual jurors who tried him were not impartial, and, as already noted, he has not even begun to show that the presence of the black juror[s] in question on the jury that tried him would have affected the outcome at all. It is in the sense of outcome, I submit, that the Strickland Court used the term "prejudice." The focus is on the outcome of the individual trial. Is there a reasonable likelihood that it would have been different? Here, I am persuaded that there is no such likelihood, and I therefore agree that this judgment should be affirmed.

928 F.2d at 274. Young has not shown a reasonable probability that the results of the proceeding would have been different, and his ineffective-assistance-of-counsel claim must fail.

II.

Young's next argument relates to the prosecutor's conduct during cross-examination. The prosecutor began questioning Young regarding the origin of an alleged disability which defense counsel mentioned in opening arguments. Defense counsel had referred to the fact that Young had a slight limp while explaining Young's version of his hasty retreat from the crime scene. In response to the question about the disability, Young volunteered that he had also been shot in the back, and then explained that his limp was the result of an old football injury. The prosecutor followed up with a question about the gunshot wound, and defense counsel objected. A sidebar followed, and the trial judge sustained the objection. The prosecutor then returned to cross-examination, and the following exchange ensued:

Q: "Mr. Young, how many people have you shot?"

A: "Have I shot?"

Q: "Yeah, how many."

Defense counsel quickly objected and requested a mistrial, arguing that the prosecutor was attempting to introduce evidence of other crimes. The judge sustained the objection, denied the request for a mistrial, and Young never answered the question.

Although the prosecutor admitted during sidebar that he was referring to "specific prior bad acts," the State now suggests that the jury most probably interpreted the question to refer to how many people Young shot in this case. We will assume the jury's interpretation of the question was consistent with the prosecutor's purpose. Even so, the unanswered question is not "so egregious that [it] fatally infected the proceedings and rendered [the] entire trial fundamentally unfair." Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985). The question did...