Chuck Lee Mathenia v. Paul Delo

prosecutions two overlap proof between jeopardy a double viola-

does not establish

tion”). proved The same conduct was at charges that were trials to establish

both

nearly identical. persuaded by are not

We also tampering argument of

State’s stealing offense occurred on

fense and the stated in our days. As we first

different “ Jeopardy opinion, ‘The Double Clause is guarantee prosecu fragile

not such simple limitations

tors can avoid its single

expedient dividing crime into a ” temporal spatial units.’ series of Brown, (citing

F.2d at reasons, foregoing

For the we reverse district judgment court and re- grant the writ of

mand with instructions corpus.

habeas

See also 702 S.W.2d MATHENIA, Appellant, Lee Chuck DELO, Appellee.

Paul

No. 91-2042. Appeals, Court of

United States

Eighth Circuit. 8, 1992.

Submitted Jan. Sept.

Decided Rehearing En Banc

Rehearing and 3, 1992.

Denied Nov.

denying his claims of ineffective assistance counsel, in denying his claims that Fifth, Sixth, Eighth, and Fourteenth rights Amendment were violated. We af- firm.

I. BACKGROUND The during evidence adduced trial early showed that in the morning hours of 24, 1984, April Fredericktown, near Mis- souri, Daisy Mathenia murdered Nash and Bailey. Louanna As in opinion stated Supreme of the Missouri Court: Daisy Nash, 72, Decedents were mentally impaired her sister Louanna Bailey, aged Appellant had lived Daisy Nash for some years seven prior to her death. At the time of the killings, appellant was years old and living still with Nash. September appellant of 1983 alleg-

edly raped twice Bailey Louanna and in year charged December he was upon for those offenses complaint. her However, February in Bailey Louanna dropped charges, indicating she testify against appellant. would refuse to The evidence indicated that the murders were by appellant’s motivated resent- having ment at been arrested and con- charges. fined connection with these Appellant revenge vowed to take two sisters. midnight April Sometime after Louis, Fleming, Mo., St. ar- Lawrence 1984, appellant returned home after gued, appellant. for spending day with his sister and Hawke, Mo., Stephen City, D. Jefferson argument brother-in-law. An began with

argued, appellee. for Daisy Nash as soon as he entered During house. argu- the course of this BEAM, BRIGHT, Judge, Before Circuit ment, appellant 72-year-old hit the wom- SICKLE,* Judge, Senior and VAN Circuit face, an in the knocking her to the floor. Judge. Senior District He then retrieved a knife from butcher SICKLE, Judge. VAN Senior District kicking beating the kitchen and after savagely, her her several he stabbed (Chuck) Charles Lee a Mis- times. inmate, appeals souri death row from the

judgment denying thereafter, Shortly appellant of the district court1 rode his petition corpus. bicycle of habeas Mathe- writ the two to Louanna Bai- blocks argues nia ley’s that the district court erred told her he had killed home and * SICKLE, NANGLE, The BRUCE M. VAN 1. The JOHN F. Senior HONORABLE HONORABLE Judge Judge Senior United States District for the Dis- District for the Eastern District of Mis- Dakota, sitting designation. trict of North souri. performance Dai- prejudiced Louanna tried to call deficient Daisy. While procured a knife. sy, appellant Washington, butcher the defense. Strickland v. returned, attempted Louanna When her fatal- Appellant (1984). flee. stabbed

vain to See also Sanders v. ly in the back. Cir.), Trickey, 875 207-208 Mathenia, 702 S.W.2d 107 L.Ed.2d (Mo. banc venue, Following change first claim of ineffective assis County convicted Jefferson Circuit failure of tance is the defense counsel to murder and Court of two counts and file a motion investigate suppress gas. lethal sentenced to death given by Mathenia. confession The factual by public at trial represented Mathenia was surrounding the confession context Hager. Mathenia’s con defender Donald Appeals: the Missouri Court of stated of death were af and sentences victions 25, April Defendant was arrested on appeal. direct v. Mathe firmed on State 1984, given warnings. and Miranda He (Mo. banc.), nia, cert. de 702 S.W.2d 840 no statement at that made time. On nied, U.S. 5, 1984, Saturday, May dep- he advised (1986). sought Mathenia then L.Ed.2d 574 uty he wished to talk to sheriff him. pursuant Mis post-conviction relief to state lawyer appointed had Because been to Supreme (repealed Rule 27.26 souri Court defendant, represent the sheriff refused 1988). relief The circuit court denied and permit to him to make a statement at Appeals of affirmed. the Missouri Court Monday, May that time. On defendant (Mo. State, Mathenia v. 752 S.W.2d spoke attorney by telephone, with his App.1988), cert. then told the sheriff his had ad- (1989). 819, 102 L.Ed.2d 809 Mathe him vised not to make a statement but petition filed a for writ of habeas nia then anyway. Only to do then did wanted so District Court corpus in the United States video-taped take the confes- the sheriff pursu Eastern District of Missouri for the sion. Following a limit ant to 28 U.S.C. 2254. § State, v. 752 S.W.2d at 875. Mathenia court evidentiary hearing, the district ed Délo, petition. v. No. denied the Mathenia May Mathenia confessed to On 1991). 89-88C(1) (E.D.Mo. April Bailey. During the murders of Nash and confession, video-taped forty minute II. DISCUSSION of described in detail the events Mathenia The video- April April 24 and 1984. A. Assistance Counsel Ineffective of at trial and taped confession was admitted claims that he was denied Mathenia Tr. jury. Trial 276. was shown to right Fourteenth Amendment Sixth claims that defense counsel Mathenia appel of counsel. On effective assistance failing investigate and ineffective for review, effective assis “the issue of late suppress the confession. file a motion to question presents a mixed tance of counsel evidentiary hearing before Armontrout, At the Schlup v. law and fact.” court, Hager Donald testified Cir.1991), district (8th cert. de 941 F.2d failure to file a motion regard to his nied, Thus, confession. suppress re the court legal court’s conclusions the district views file Q. Why you pursue or such did novo, re findings of fact are de motion? stan clearly erroneous viewed under no chance of suc- A. I felt that it had Trickey, dard. Couch cess, of this my assessment based Cir.1989). case, case, and several facts of this experience prosecuting years of his claims of ineffective prevail To with state (1) defending. experience And assistance, must establish that judges. trial performance was deficient counsel’s performed by aminations Dr. Basset and Supposedly, the motion Hearing Tr. reveal a disease by Dr. Vicioso did not mental supported have been suppress would Mental retardation itself is or defect. confession was Mathenia’s the claim that support capaci- a diminished insufficient to intelligently made. knowingly and Gilmore, ty defense. 681 S.W.2d mentally retarded with mildly Mathenia is (Mo. banc approximately intelligence quotient of his asserts because voluntarily person A who is intoxi know- he could not have retardation mental responsible con criminally for his cated waived his Miranda intelligently ingly and “[njegatives the duct unless such condition However, Mathenia’s decision to rights. purpose states of existence of the mental uncoerced, lawyer had ad- confess was knowledge.” Mo.Rev.Stat. 562.076.- or § mute, and he was aware him vised to stand found, 1(1). there is As the district court intention to use his statement the state’s intoxication, if evidence that Mathenia’s no video-taped him. review against Our negate purpose any, was so extreme as to us that the circum- convinces confession State, 763 S.W.2d knowledge. Morris surrounding the confession estab- stances (Mo.App.1988). 329-330 requisite possessed “the that Mathenia lish that de Mathenia next contends his Mi- to waive comprehension” level failing ineffective for fense counsel was Burbine, 475 U.S. v. rights. Moran randa mitigating witnesses. present certain 1141, 1135, L.Ed.2d 106 S.Ct. at the presented three witnesses Mathenia district (1986). agree with the We Davis, penalty phase the trial. Thomas to file a failure that defense counsel’s court brother, Mathe testified as to Mathenia’s per- not deficient suppress was motion to Bassett, psy Gary Dr. nia’s childhood. formance. Farmington Hospital, chiatrist at the Further, graphic Mathenia’s while mildly mentally testified that Mathenia defense, to his was destructive confession Hamilton, Mathe Finally, Nina retarded. against only evidence far from it was teacher, as to grade school testified nia’s Clair, step-sis Mathenia’s Joyce him. St. at that time. her of Mathenia observations ter, that Mathenia told at the trial testified Still, that defense Mathenia maintains Trial the murders. had committed her he presented have the addition counsel should Massey and Ronald Tr. 243-244. Robert Brinkley, Gary testimony al of Reverend County jail, Reed, at the Jefferson inmates Dorothy and Harold Mathenia. Stevens them that Mathenia told that each testified that these ad The district court concluded Trial Tr. people. he had killed two have mitigation would ditional witnesses in find was correct The district court that defense counsel’s cumulative and been prejudiced defense was ing that failing present this testi performance in not have been would since the outcome agree. . mony not deficient. We sup the confession been different had pressed. Circum- Statutory Aggravating B. stances de next contends that phase, the trial court penalty At the failing to ineffective for counsel was fense statutory aggrava jury on instructed the capacity defense. present a diminished The court instructed ting this de circumstances. his entitlement to Mathenia claims unanimously and it must find (1) jury mental retarda grounds: fense on two one of doubt at least beyond a reasonable or (2) voluntary intoxication. tion and following: that “the murder capacity [Nash de a diminished present der to wantonly outrageously or Bailey] was and fense, to show that at would have it involved vile, in that horrible or inhuman murders, appreci he did not the time of the “the mind” and that depravity of incapa torture or his conduct or was ate the nature of Bailey] was commit and murder of a result of conforming his conduct as [Nash ble purpose of by the defendant for ted Mo.Rev.Stat. or defect. mental disease testify- Bailey] from and preventing ex- The mental [Nash and 552.010. 562.086.1 §§ Court, not expressly adopting Mo.Rev.Stat. while ing judicial proceeding.” in a definition, 565.012.2(7) (12). jury only precise found has noted the follow- & § ing circum- statutory aggravating finding factors to be considered in the first murder, finding “depravity of mind”: mental as to Nash’s state of de- stance statutory aggravating fendant, circumstances physical psycho- infliction of or both Bailey’s logical upon murder. as to torture the victim as when period victim has a substantial of time v. relying Maynard Cart anticipate before death to and reflect wright, 486 U.S. it; conduct; upon brutality of defendant’s Godfrey Georgia, (1988) death; body mutilation of the after ab- 64 L.Ed.2d 398 motive; sence of substantive ab- (1980) contends that the (plurality opinion), defendant’s sence of remorse statutory aggravating circumstance nature of the crime. vile, or wantonly or horrible “outrageously Preston, (Mo. State v. it torture or de inhuman in that involved 673 S.W.2d denied, banc), cert. applied, vague is so as pravity of mind” as (1984). Amendment. See also State Eighth to violate 83 L.Ed.2d — Black, U.S.-, Smith, Stringer (Mo. 1988), 756 S.W.2d 493 banc (petition 117 L.Ed.2d 367 relying Maynard not foreclosed from er 102 L.Ed.2d 812 sentence though his death became even Here, simply the court instructed case). final before “[wjhether determine the mur authorize If Missouri wishes to Bailey] outrageously der of [Nash respon “it has a constitutional punishment vile, wantonly or inhuman in horrible in a apply its law sibility to tailor depravity that it involved torture or of arbitrary capri that avoids the manner terse, jury equally mind.” The declar God penalty.” of the death cious infliction subject aggra ing that had found 428, 1764. at 100 S.Ct. at frey, 446 U.S. vating circumstance as follows: “outra 153, 96 Georgia, 428 U.S. Gregg also v. See horrible, inhuman, vile, wantonly geously, (1976) 2909, (plurality L.Ed.2d 859 49 torture, depravity of mind.” involved Georgia, 408 U.S. opinion); Furman v. Thus, is whether the Missouri question 2726, L.Ed.2d 346 33 “the unfettered dis Supreme Court cured curiam). circum aggravating (per appeal. May jury” on direct cretion of arbitrary and ca risks the at issue stance nard, at 1859. at 486 U.S. penalty of the death be pricious infliction further, a state su inquire “because We horrible, murder, all, cause, after “[a]ll facially-vague may salvage a preme court v. inhuman, Smith vile, forth.” and so construing provide it to the sen statute Armontrout, (8th Cir. F.2d 538 ap criteria for tencing body objective sentencing pursuant Consequently, Clarke, v. plying the statute.” Moore pro circumstance aggravating to such reh’g de Cir.1990), (8th distinguish those that means to vides no cert. de Cir.1991), nied, (8th F.2d 895 penalty from those who the death receive nied, Eighth meet its In order do not. Mercer v. (1992). must obligations, Missouri Amendment Armontrout, F.Supp. discretion sentencer’s “channel legislative (“the of (W.D.Mo.1986) absence provide that objective ‘clear and standards’ govern court-imposed standards and that guidance’ ‘specific and detailed circum aggravating weighing process rationally reviewable ‘make sentencing render stances does ” Godfrey, of death.’ imposing a sentence in a constitutional applied if statute invalid at 1764-1765. (8th Cir.), F.2d 582 aff'd, fashion”), 900, 109 S.Ct. denied, responded Supreme Court The Missouri 102 L.Ed.2d Godfrey as follows: case, aggravating the Mis circumstance was unconstitu- facts of theOn tionally vague, unsupported by held: the evi- Supreme Court souri dence, post application. ex and an facto appellant’s savage that There is no doubt supported a find- Daisy Nash beating of Supreme appeal, direct the Missouri On appel- as did ing first circumstance of the stated: Court * * * psychological “infliction lant’s ... there was sufficient evidence * * * Bailey] upon torture [Louanna Bailey Daisy Nash and Louanna both period of a substantial when had] [she against appel- potential were witnesses anticipate and re- death to time before rapes alleged lant for the of Louanna flect on it.” supported a Bailey. The evidence also Mathenia, 702 S.W.2d at 845 State Bailey poten- finding that Louanna was a Preston). sup The evidence (quoting against appellant in the tial witness inflicted finding that Mathenia ported Daisy murder of Nash. Nash. Dr. Michael physical torture In 702 S.W.2d Graham, testified at trial pathologist, alleged September .it was that Mathe- “extensive fractures of that there was However, raped Bailey. nia twice Feb- cheek, face, of the the bones bones ruary Bailey dropped charges. of the skull.... And and the base the nose argues time of the that at the Trial Tr. also fractured.” jaw the left murder, Bailey could not have been wit- supported the find The evidence also charges against rape ness him since the psychological inflicted ing that Mathenia course, dropped. at the time had been Of Nash, killing Bailey. After torture murder, Bailey of her was not a witness Bailey. to the home Mathenia went against the Nash murder ei- Mathenia for Bailey just that he had Mathenia informed ther. procured then killed Nash. Mathenia seems to maintain that there Bailey’s kitchen and stabbed knife judicial proceeding and pending must be a attempted flee. as she Bailey in the back purpose the murder must for the be torture, physical or finding A whether proceeding. preventing testimony at that limiting construc proper is a psychological, contrast, Supreme Court Missouri Armontrout, 888 F.2d tion. Smith Bailey “potential” witness. spoke of as a Cir.1989). Harper v. See also 537-539 pants, told with blood-stained (8th Cir.1990). Grammer, F.2d 473 point, At that Bai- Bailey he killed Nash. that the district court with the agree We potential ley certainly was witness by the Missouri Su applied construction argues against Mathenia. Mathenia then sufficiently narrowed the preme Court subsequently eligible pen for the death that since the statute was persons class of Armontrout, language “potential 885 amended to include the alty. Newlon Cir.1989), witness”, cert. de the amended statute was retroac- nied, no tively applied to him. Mathenia offers (1990).2 authority argument Bailey’s for his regard to potential as a status witness statutory aggravating The second encompassed the Nash murder was not “the murder was that found circumstance district The the statute as it then existed. by the Bailey committed of Louanna properly rejected court this claim. preventing purpose of for the defendant judicial in a Bailey testifying from Louanna Non-Statutory C. Circumstances 565.012.2(12). proceeding.” Mo.Rev.Stat. § on non- instructed jury circum aggravating jury found this The The as circumstances Bailey’s statutory aggravating mur respect to only with stance statutory that this follows: contends der. Mathenia properly submit- aggravating counsel was circumstance that defense also asserts

2. Mathenia ted, object failing object was not to the submis- failure to counsel’s ineffective defense statutory aggravating circumstance. performance. sion of this deficient agree court that since the We with the district may any punishment consider of the fol- must fix the impris- You at life you if lowing Accordingly, circumstances find onment. the district court beyond a reasonable doubt correctly the evidence relief denied on this claim. aggrava- and that it is an that it exists objects Mathenia next to the miti ting circumstance: gating circumstances instructions. The approximately That within six jury was instructed as follows: [Nash, [after, prior] the murder of hours you If aggrava- decide that a sufficient a second Bailey] defendant committed ting circumstance or circumstances exist murder, [Bailey, being the victim Nash]. death, imposition to warrant the it [] were committed at different The murders your duty will then become to determine locations; mitigating whether a sufficient circum- [Nash, Bailey] poten was a That stance or circumstances exist which out- past felony pro criminal tial witness weigh aggravating such circumstance or ceeding against defendant so found to circumstances exist. de- Court, County charges Madison Circuit ciding question you consider all of CR283-343FX, [Nash, case number relating the evidence to the murder of killed as a result of her Bailey] was [Nash, Bailey], as a material witness involvement may You consider: defendant; against the sig- 1. Whether the defendant has no April That defendant on history prior activity. nificant criminal [Nash, Bai year was a 25 old male [Nash, Bai- Whether the murder of [72, ley] year was a old female. 70] ley] was committed while the defendant Daisy After the murders of Nash men- was under the influence of extreme Bailey, the defendant com and Louanna tal or emotional disturbance. involving the mitted additional felonies capacity of the defen- Whether persons threat of violence to other use or appreciate criminality dant to of his custody being held in conduct or to conform his conduct to the County Jail. Jefferson requirements of the law was substantial- non-statutory ag- all four The found ly impaired. as to mur- gravating circumstances both may also consider that the defen- You ders. or defect at dant had a mental disease Approved Instructions The Missouri [Nash, Bailey]. the time of the murder (MAI) on non-stat- provided for instructions defect,” phrase “mental disease or circumstances “if there utory aggravating instructions, means as used these supporting aggravating cir- is evidence regardless of its abnormality, mental au- circumstances ‘otherwise cumstance or label, origin or source. medical MAI 15.42 Note thorized law’.” Cr.2d any may consider circum- You of the non- 3. Mathenia claims none from the evidence you stance which find pres- statutory aggravating circumstances punish- mitigation in or extenuation “authorized jury ented to the had been ment. law”. object to the does not correctly that While Mathenia court noted

The district 862, 878, statutory mitigating circum- listing of 103 Stephens, v. 462 U.S. Zant in- (1983), stances, lack of object he does to the L.Ed.2d 235 77 non-statutory mitigat- concerning non-statutory jury consider struction permits the to argues that Further, Mathenia ing circumstances. aggravating circumstances. permitted to submit state was while the to consider non-statuto- jury was instructed circumstances, non-statutory aggravating only after ry aggravating circumstances submitting non-stat- precluded he statutory aggravating finding or more one noted, As utory mitigating circumstances. jury The was instructed circumstances. general in lan- instructed jury not find at least one that if could which any circumstance circumstances, guage “consider statutory aggravating 452 non-statutory

you mitigat- the evidence extenuation an instruction find from Therefore, punishment.” mitigation ing or circumstance. he cannot complain might now that he have been Approved to the Missouri cites Mathenia hypothetical denied a instruction. Instructions: extenuating may jury The consider D. Post-arrest Silence though mitigating circumstances even “statutory” mitigating cir- out as not set Mathenia contends that the trial and even Section 565.012.3 cumstances overruling committed error in de court within not “authorized law” though objections fense counsel’s to the sheriff’s phrase in 4 meaning of that discussed that, upon arrest and after re statement However, should no instruction above. ceiving warnings, Miranda re calling jury’s attention to given be mained silent. Mathenia is correct that his referred to any particular circumstance post-arrest may silence not be used for paragraph. in this general purposes or as impeachment substantive Ohio, proof. Doyle The Missouri v. MAI 15.44 Note 5. Cr.2d jury (1976). However, has that while Supreme Court held L.Ed.2d 91 evidence, a defen mitigating can consider was not the here. case entitled an instruction on dant is not points following colloquy to the v. “particular circumstances.” State County at trial between Madison Sheriff (Mo. banc Young, 701 S.W.2d Gary prosecutor: Asher and the 1985), U.S. Sheriff, Q. you made the arrest of the (1986); v. Lei State 25th, ’84, out April defendant at his (Mo. 1988). sure, banc 749 S.W.2d County, house in sister’s Madison Mis- recently, Supreme the Missouri Court More souri? court not list stated that a trial “should Yes, A. sir. mitigating circumstances nonstatutory Q. him you you And after arrested did instructions, the inclusion of because rights? him of advise it to believe that might lead some Yes, sir. A. v. Wacas may consider others.” State Q. you And did make a statement to (Mo. er, banc 794 S.W.2d the time of arrest? required states Supreme Court has The No, sir. A. the sentenc carefully limit and channel through circum aggravating er’s discretion Trial Tr. 270. However, opposite is true stances. appeal, Supreme On Missouri Court mitigating circumstances. comes to when it determined that the reference Mathe- Arizona, See Walton post-arrest was not nia’s silence used 3047, 3061-3063, 111 proof. impeach Mathenia or as affirmative (Scalia, J., concurring). L.Ed.2d Rather, Court Supreme the Missouri found may precluded from not be

The senteneer colloquy “merely preliminary that the mitigating evi considering any relevant admission evidence of to the into [Mathe- Maryland, 486 U.S. dence. Mills v. video-taped statement.” nia’s] (1988); Ed 100 L.Ed.2d 384 702 S.W.2d at 842. district Oklahoma, 104, 102 S.Ct. dings v. Supreme agreed with the Missouri court Ohio, (1982); L.Ed.2d Lockett reasoning that Mathenia and found Court’s 2954, L.Ed.2d 973 57 438 U.S. relief on this claim. not entitled to was (1978) opinion). (plurality colloquy, the Shortly after the above video-taped the confession. prohibits shown sentencing While a scheme circumstances, agree we these obtaining an instruction a from Given defendant relief on non-statutory miti- district court’s denial relevant particular, a pros- that the argues Mathenia also constitutional- claim. gating may circumstance be the above testi- made reference to infirm, squarely pres- ecutor ly this case does not The district request mony closing remarks. ent that issue. Mathenia did proee- that the claim Penry court concluded v. Lynaugh, U.S.

durally Regardless, 2934, 2958, defaulted. Mathenia is S.Ct. (1989) entitled to relief on this claim. (Eighth See Amendment preclude does not exe- Trickey, 895 F.2d retarded). Horne cution of mentally Cir.1990). note also that the evidence We demonstrated premeditation. Mathenia’s Jury

E. Selection step-sister, Clair, Mathenia’s Joyce St. testi Mathenia makes two claims con fied as to Mathenia’s statement that he First, cerning process. during the voir dire “ought kill Louanna” having for him dire, voir a venireman stated that he would up locked rape charges. on the Ms. St. automatically penalty vote for the death Clair also shortly testified that before the following murder conviction. murders, Mathenia asked her how much challenge Mathenia’s for cause denied. time his father had received for a murder. Later, responded none then prosecutor Ms. St. Clair told Mathenia that his father panel asked the if there were who had thirty-five years. received In his con would not follow the trial court’s instruc fession, Mathenia just stated that “I’d like aggravating mitigating tions cir get put see if I can somewhere for about penalty phase. cumstances at the Mathe- twenty years ten or ...” nia then removed the venireman with court, peremptory strike. The district in Finally, the district court did not err in voking the presumption of correctness ex limiting scope evidentiary hear- 2254(d), pressed in 28 U.S.C. found fair ing. reasons, For foregoing § the district support in the record for trial court’s court’s denial petition of Mathenia’s conclusion that the venireman would follow corpus writ of habeas is affirmed. agree. the court’s instructions. We Witt, Wainwright v. BEAM, Judge, concurring Circuit 83 L.Ed.2d 841 specially. Mathenia next contends that I opinion prepared concur sustaining trial court erred in the state’s Judge separately Van Sickle. I write challenges for cause to two veniremen who respond Judge Bright’s dissent. impose indicated that could not internally The dissent is both inconsis- court, penalty. citing The district description tent and incorrect in its McCree,

Lockhart v. nature and character of the con- (1986), L.Ed.2d denied I object upon fession. to the assault again sup relief. The district court found who, course, defense has no port in the record for the trial court’s deci respond means may which he to the sion to strike the two veniremen for cause. pummelling. agree. We Perhaps, portion Black- of Mr. Justice Culpability F. Mental Whitley, mun’s recent dissent in Sawyer -, 2514, 2528, Mathenia asserts that his mental U.S. prevented him having (1992) retardation 120 L.Ed.2d puts the dissent degree culpability necessary justify perspective. strong Noting his reserva- capital punishment. The district court penalty, tions about the death Justice pointed found that since Mathenia failed to raise Blackmun out in Furman v. courts, Georgia, this claim the state the claim was 408 said, procedurally The defaulted. district court 33 L.Ed.2d 346 “[w]e further that Mathenia had personal preferences found shown should not allow our for, from, prejudice congres- legislative neither cause nor as to the wisdom of penalty], default. district court then noted that sional action the death our [on provide grounds guide the record did not for re death to penalty] distaste for [the Again, agree. judicial lief on the merits. we our decision.” See attempt attorney directed toward an made. His colorful invective should After confession, videotaped premeditated not be blamed for Mathenia’s the the nature of the quarrel “I do with says, not miscalculation. the dissent mur- capital conviction Mathenia] [of The dissent also terms defense counsel that the Presumably means this ders.” “might ineffective as because he have met guilt/inno- in the admissible videotape was partial by moving with to suppress success trial, in the the but of phase cence confession” at trial. Why proceeding. of the portion penalty single The dissent cites case in not a which acceptable for one facet be tape would approach such has been successful. unduly prejudicial for an- but of the trial Videotaped routinely are confessions admit- (and unexplained perhaps is part other trial as are of ted at similar items evidence jurisdic- in Apparently unexplainable). videotapes photographs as color and such punishment capital the evi- tion without and of murder scenes and victims related satisfactory to the have been dence would partic- this graphic evidence far more than Missouri, state, not in a such as dissent but course, proof is, tape. preju- ular Such of view, held, if penalty. with a death Such probative to a it is dicial defendant but the rules of evidence. is not based that a is entitled evidence crime videotape. The dissent first Now to see. in “appeared Mr. Mathenia claims that Finally, supports its view the dissent that course, not, garb.” He was of dirty prison by in this counsel ineffective case detainee garb, pretrial in he prison pointing penalty to other cases jail. statements in the local From lodged Hager Mr. has which been associated. itself, possible it is to determine tape in the Judge Bright cites Chambers Armon usual and it is not in his dress that he was (8th Cir.1990) trout, 907 F.2d and cleanliness. possible judge Jones, (Mo.1986). 705 S.W.2d 19 disagree appeared Mathenia I do not (six five) split was a en Chambers banc But, rather long and with hair. unshaven certainly this is decision of court that demeanor disconnected” than a “vacant evidence, my view, ineffective assis incarnate,” he was com- “mad-demon like a tance of counsel. In there is not a Jones controlled, spoke quietly and posed, hint of ineffective assistance. case which great two murders detail about cruel shocking involved a murder to commencement committed. Prior had through, things, proved among other a con went over the sheriff the confession absolutely There is no fession Jones. warnings detail and discussed Miranda that Hager indication had connection fact that his had with Mathenia being evidence was with Jones tape.” against “giving the just him advised gathered. Hager To use to criticize Jones law- that “he noted The officer unfair. [Mathenia’s for his actions this case is tape.” not to you give us yer] advised BRIGHT, Judge, Senior Circuit right.” He was replied, Mathenia “[t]hat dissenting. go “[y]ou you siad would rather then asked “[y]es.” And Mathenia answered ahead?” For reasons stated in this I dissent. dissent, Hager Mr. told as in the admitted dissent, require I would the State Mis- pen- “get could the death that he Mathenia Mathenia a new grant Chuck Lee souri gave taped confession. alty” if he his hearing penalty phase on the that, an ar- presented then With Mathenia reduce the death sen- murder conviction or statement of and meticulous ticulate parole. imprisonment without tence to life actions. (1986 & Mo.Rev.Stat. 565.020 West § Supp.1992). indicates that evidence Other apparently lawyer because he overruled OF COUNSEL I. INCOMPETENCE use confession as a could thought he is well the road to execution argue period for a of incarcera- device incom- such reason of carelessness videotape tion. The establishes appointed public thereafter, petence by of his defender at making a motion to suppress trial, See, Hager. Donald W. e.g., Strick- videotape the in part. whole or in 668, 687-98, Washington, land Hager’s failure to act is more egregious 2052, 2064-70, ordinary here than in criminal defense situ- significantly, Most investi- without ations because knew from medical re- giv- gation, objection without and without ports that his client was mildly mentally advice, ing proper client counsel and App. retarded. at Hager G Hager permitted jury to view Mathe- given knew that Mathenia had a false con- videotaped nia’s color confession. In this rape fession to charge less than year one statement, videotaped appeared before the statement at issue in dirty prison garb. ap- in this unkempt He was and unshaven, long scraggly peal. hair. at just Mathe- Id. 130. Mathenia wanted to nia had a vacant disconnected stare and please everyone. certainly pleased He demeanor. He looked like a mad-demon prosecutor sheriff and the in this case. incarnate, portrayals not unlike similar pathological killers in horror movies. Incompetence A. permitting in sheriff judgment, viewing this dissenter’s to obtain confession with- videotape by jury guaranteed objection out properly without penalty Mathenia, regardless advising the client. any possible mitigating I circumstances. Hager Jackson, was in court in Missouri quarrel capi- do not with the conviction for Cape Giradeau when the Madison Coun- tal judge murders. Nor would this seek ty telephoned Sheriff to indicate that if reversal the confession were in the form Mathenia was about to audiotape App. of an confess. transcript or written G Any Hager approximately video. defense in a was forty to murder case sixty worth his or her salt and miles from where Mathenia was held possessing competence, a modicum of how- jail.1 noted, already As counsel knew ever, steps prevent would have taken a Mathenia mentally retarded and had appearing client from in this sheriffs tele- previously made a false rape. confession to production. Having vised failed that Counsel knew Mathenia had refused to regard, competent attorney would have talk to the authorities until attorney fought keep the televised statement appointed represent him. Id. at jury, charged from the so that the defen- 132. Counsel was aware that Mathenia might dant avoid condemnation to a death had during approximate remained silent sentence. preceded two week confinement that opinion technically reproduce This cannot Yet, phone Hag- sheriff’s call. Id. at 133. the full scenario that was revealed to any attempt er never made to talk to his forty-five videotape. viewer of the minute face-to-face, personally, client to determine excerpted photo, black and white which why changed his mind. Id. at reproduced has been from the sheriffs Hager 127-28. never instructed the sheriff appendix movie and attached as an to this not to talk client to his until he or his opinion, gives glimpse of the defendant investigator could come to the Madison jury as the viewed him. Mathenia was 127-28, County jail. simply 130. He Id. possible light seen in the worst get told his client that he could the death he confessed to his crimes. This penalty and then “told it Chuck was his prejudicial videotaped statement unfolded decision.” at 127. Id. in the courtroom without inter- benefit of attorney diligence compe- The lack counsel, vention the defendant’s did who tency captured in vividly colloquy prior not come to his client’s aid either video, capture Hager of the statement on and Mathenia’s between habeas argument, jail being 1. At oral counsel for the State of where Mathenia was held was Missouri estimated that Cape the distance between approximately 40 to 60 miles. Giradeau, court, Hager where Suppress B. Failure to Move to district court habeas Video- at federal counsel tape hearing: corpus Q. Knowing Chuck had confessed incompetence that Hager perpetuated his commit, rape by through he did not and failing to a that thereafter to follow with at Hag- least borderline knowing suppress that he was a motion to the confession. retarded, indicated, knowing initially pre-trial that the mentally during er a con- certification, planned have in his I trou- on June that he to doctor ference certification, suppress videotaped file his had a motion to ble—Dr. Vicioso—in App. During Cl at 2. him to at least borderline men- confession. found be that, preliminary hearing in retarded; knowing you County of Madison Cir- all tally 19, 1984, however, July Hag- attempt to talk to the cuit Court any make did not er that phone stated he had a motion to you that call filed received sheriff when suppress the defendant’s at the doing any- statement Chuck say, “I don’t want I circuit court “for the reason that level I get there”? thing until that believe it would have no chance of right. A. That’s App. B2 at 1. success.” Id. at 130. decision, Hag- time At the of this critical Yet, Hager that the events tran- knew er that two knew Mathenia confessed after compromise could his spiring jail at the refusing of to a statement weeks make rights. client’s appointed App. until he had been counsel. telling Q. you you recall someone Do G at 132-33. No could doubt that that Chuck proposal a that there was videotaped statement amounted to self- amake statement? by Mathenia incrimination for the murders I Probably don’t have A. so but possible light in the put who himself worst I good memory on that. I know that by appearance. television Cast as the something go- must that be understood film, already of that an villain Oscar they considered to' ing jail at the that Only to a his. that Oscar award amounted possibly they important; were very sentence, be unless somehow undone I was get a confession. aware about to But the intervention of counsel. counsel happening importance of what was of nothing. did what it was. nature of and the effect, was, a Hager’s excuse good. Id. at do no suppression motion would 1; App. at 171. I will App. B2 G at no that have ad- cases reveals Research confession, dispute the text of whether, in of order the issue dressed in the of an audio statement or either form guaranteed counsel act effective as the may transcript, possibly a have sur- written amendment, attorney should the sixth My view is vived motion dismiss. delay taking his or her a sheriff to instruct respect portion with to the video otherwise can at until or she be confession client’s Hager might met of the confession. have Under jailhouse during the statement. by moving suppress partial with success however, judge “must Strickland, a court videotaped confession. challenged counsel’s reasonableness case, this In the first case which Circuit particular the facts conduct on confession, videotaped con- discussed time of counsel’s as of the viewed opinion, affirmed, at in a divided 2066. court U.S. at duct.” 466 videotaped Hen- statement. as were admission facts of this case Under the (8th Swenson, Cir. 456 F.2d of the video- dricks Hager at the time known however, Hendricks, video- confession, delay his failure taped of a defen- tape only guilt to the present related could until he be confession prosecution, degree murder dant in first client was unreason- mentally retarded at penalty. a death Id. not the likelihoodof Id. performance. able Armontrout, 861 504; also Gilmore clearly was inade- see Hager’s conduct Cir.1988) (admis- 1061, 1072-73 quate. Cuneo, cording defendant’s confession to Dr. Daniel sion of J. sentencing murders at incapable knowingly to two unrelated intelligent- murder trial violated no phase ly waiving rights. his Miranda Id. at 32- rights), federal constitutional 33. Mathenia “extremely impulsive” 1114, 3176, 104 L.Ed.2d 490 U.S. please.” Id. at 34. Sher- “want[ed] (1989). addition, In the Eleventh 1037 Cir simply iff Asher read stan- subject videotaped cuit addressed the of a dard seven line statement of the Miranda Zant, confession Gates v. 863 F.2d 1492 warnings, checking without to determine (11th Cir.) curiam), denied, (per 493 cert. actually whether Mathenia understood each 353, U.S. 107 L.Ed.2d 340 33; component warning. of the Id. at see (1989). Gates, however, only the court App. B1 at 67. appeared showing considered whether the defendant “completely oblivious to what [we]re during videotaped handcuffs statement doing,” Cuneo observed. Id. at 112. Un- unduly prejudicial. at 1501-02. Id. circumstances, concluded, der the Cuneo Hager’s telephone brief conversation with Hendricks, nor Neither Gilmore Gates Mathenia failed to mentally advise his re- portion considered whether the video of a scope tarded client of the rights of the confession should be redacted as violative waiving. Id. at 34. rights against of a defendant’s basic self- open incrimination. That issue remains an Hager’s guilt conduct at phase Hager’s one. No real excuse exists for trial, moreover, suggest does little to confi- suppress failure to seek to the confession. dence in the proceedings. outcome of the any legitimate professional Nor is there Hager called no guilt witnesses at having argued for not reason before phase presenting and rested without a de- least, very judge, state trial at the that the App. fense. See at 297. He C failed to portion of the confession video should object when Sheriff Asher testified jury. Judge be submitted to the As Hea- Mathenia said his attorney told him “he’d observed, ney upon terms of effect “[i]n get the electric chair” if he made a state- jury, playing of a video- defendant’s Hager objec- ment. Id. at 274. made no taped confession at trial is the functional tion to the confession on the equivalent requiring [the defendant] grounds knowingly that Mathenia had not testify against take stand himself.” intelligently rights. waived his Miranda Hendricks, J., (Heaney, 456 F.2d at 509 dissenting). II. THE STRICKLAND STANDARD HAS BEEN MET Incompetence C. Other Evidence of analyzing Under the standards for Hager’s perfor In addition to deficient claim of of counsel ineffective assistance respect to the mance with admission Washington, enunciated in Strickland trial, videotaped statement at Mathenia’s 80 L.Ed.2d 674 S.Ct. investigation his into the circumstances (1984), Mathenia must defendant-petitioner surrounding superficial the confession was defi Hager’s performance show that Hager only at made a minimal effort best. defense. prejudiced cient and that it his Id. investigate whether with an per at 2064. “Counsel’s at S.Ct. IQ age a mental approximate of 70 and compe when it is less formance is deficient eleven, App. knowingly ten or G at that should be tent than the assistance intelligently rights waived Miranda2 attorney under provided by a reasonable phone trial. At the time of the call before the same circumstances.” Chambers claimed, Asher, Hager Mathe Sheriff (8th Cir.) Armontrout, rights to understand his under nia seemed Strickland, banc) at (en (citing 466 U.S. App. at 177-78. Miranda. G 2064), 112 L.Ed.2d 331 testimony evidentiary S.Ct. Expert at the hear- U.S. (1990). opposite Ac- ing suggests the conclusion. Arizona, 16 L.Ed.2d 694

2. Miranda v. served, eliminating task No further extended discussion should be arbitrari “[t]he capital punishment ness necessary at the conclusion that in the infliction of to arrive provide proving Hager many times to to be one which our criminal failed competent justice system perhaps any assistance” envi- criminal “professionally —and justice system perform.” U.S. at unable sioned Strickland. —is First, 420, 440, taking Georgia, Godfrey action mentally retarded client S.Ct. 64 L.Ed.2d 398 assure that his (Marshall, J., (footnote concurring) to the and incrimi- and ci speak would not sheriff omitted). himself, court Hager virtually assured a tations This and the Su nate Court, Second, however, seeing preme will not counte penalty. after failure, videotape, the of a who represented by nance the execution defendant first deficiently by compe at- has received assistance Hager performed not the of Strickland, way rectify his tent 466 tempting any in to mistake. counsel. U.S. 2068; Lockhart, sup- 104 have filed a motion to S.Ct. Fretwell Counsel should (8th Cir.1991), minimum, 946 attempted, grant F.2d 571 cert. press at a —ed, -, 118 seeing damning U.S. prevent jury from the the (1992); Kenley L.Ed.2d 542 v. Armon videotaped footage the confession. of trout, Cir.), 937 1298 cert. de Third, -unreasonably Hager by acted — nied, , U.S. 116 taking steps penal- the death other avoid (1991); Sargent, Henderson L.Ed.2d presentation the of reasonable ty, including (8th Cir.1991), 926 F.2d 706 de cert. Mathenia’s mental retardation evidence of nied, U.S. guilt phase. at the Chambers, (1992); F.2d at L.Ed.2d 815 Hager’s in- Finally, prejudice from the 828-33. serious erosion competency stands without Here, Hager provided know we that has appearance Mathenia’s in in the record. assistance of counsel in at least ineffective stereotyped him confession penalty one Missouri death case. other pathological preju- a killer. Without as Chambers, (granting 907 F.2d at 828-33 video, he have impact dicial of the would grounds habeas relief of a new trial on the mentally as an aberrant re- come across provided of ineffective assistance might who not deserve tarded murderer During Hager). defendant the same however, penalty. jury, death The saw general repre of that he period time Mathenia, his only one side of demonic Mathenia, Hager represented a sec senting videotape. The re- appearance in the end defendant, Marvin capital ond murder prejudicial for was far more sult Jones, App. 142-46. like Jones. See G at compelled if to stand trial than he had been penalty. death received the clothing, fully prison prac- a identifiable Jones, (Mo.), 705 S.W.2d has Supreme declared tice which Court Williams, 425 Estelle v. unconstitutional. L.Ed.2d (fourteenth amendment Chambers, case, Mathenia’s as compelling ac- prohibits the state from Hager’s performance patently deficient trial cused “to stand before According- prejudiced his client’s defense. clothes”). prison dressed identifiable part ly, grant writ I would

require resentence either that Missouri prison sentence the maximum Mathenia to III. CONCLUSION penalty phase retry or the law under penalty the death seem to Students of against Mathenia. that, often, rhyme rea- quite no or observe concerning Judge killer I comment who is add a brief son differentiates between relating assertions in concurrence the killer who receives life Beam’s to death and put Judge dissenter and ob- to the motives this As Justice Marshall imprisonment. pictures I consider incom- from the Beam’s defense what punish- affected the petent lawyering. ment, guilt/innocenee not the phase, inas- much as the record as a whole otherwise appendix Mathenia in the picture strongly established that Mathenia had only part story, enough of the but tells committed the murders. any disinterested observer to realize that a lawyer doing job is not in a defense Finally, contrary to Judge Beam’s under- permits, murder case when he with- my standing obligation a judge as of this defendant, objection, videotape, via out court, I do not write from opposition appear jury looking like Mathe- before to, for, preference penalty. Moreover, Judge pre- Beam nia looked. The State of Missouri may put Mathenia to in suggesting sumes too much only death but after a trial in which he is portion in one video was admissible afforded a defense competent attor- other, according my trial not the but judicial ney; philosophy is in accord opinion. quite specif- the dissent made As with the views of the United States Su- ic, p. the defense should have preme Court and of the judges of fought keep the “televised statement” jury. prejudice supra p. The unfair arose court. See

Case Details

Case Name: Chuck Lee Mathenia v. Paul Delo

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 3, 1992

Citation: 975 F.2d 444

Docket Number: 91-2042

Court Abbreviation: 8th Cir.