*1 say argues thát is physician 338. We cannot the case that because the who exam- story boys up Had R.H. made the entire ined found no of physical here. evidence trauma, complaint filing presented testimony of the and because to the Services, boys that the Department story, the state had fabricated their Social he made to Martinez have been Government’s evidence was not ments sufficient therefore, fact, and, support a part of no conviction. In fabrication the record physician’s probative testimony value a determination of reveals wheth was story ambiguous, er fact a-fabrication. We somewhat and was not inconsis- therefore, conclude, although a diagnosis R.H.’s tent with of child abuse. Both accompa attempted impeach statements were when sides admissible other’s wit- instruction, by presenting a limiting nied as nesses were evidence fabrication. Brings Roofing position when Him Back and testified The trier fact is in the best them, credibility the statements were not assess the admissible of witnesses. evi- 803(4) truth under clearly their either Rule dence contained in the is record suffi- 801(d)(1)(B). support court cient to Rule The trial therefore the verdict. allowing
erred Martinez extrajudicial R.H.’s without a lim statements III. iting instruction. given For the reasons affirm we White’s We need not trial if reverse the conviction. admitting extrajudicial R.H.’s statements was Erroneously admitting error. harmless evi at trial be
dence said to harmless “[ojther evidence same effect was ”
properly
jury....
before the
United States
(8th
Austin,
257,
Cir.1987),
v.
823 F.2d
FOSTER, Appellant,
Emmitt
denied,
1044,
778, 98
cert.
(1988);
see
L.Ed.2d
also United States
Smith,
(8th Cir.) (admit
794 F.2d
DELO, Appellee.
Paul
ting
already
cumulative of
evidence
evidence
No. 92-3557.
harmless),
denied,
before
cert.
more, testimony Brings Him Back and supported credibility
Roofing of R.H.’s
testimony Thus, that White had him. abused objectionable portion of Martinez’s testi
mony was to the as same effect other testi
mony jury. Admitting properly before the testimony was therefore harmless error.
II. challenges
White also his conviction groünds the trial court should granted acquittal. motion He *2 MO, Battisti, Louis, argued F.' St.
Gino
brief),
(Robert Haar,
appellant.
T.
MO,
HaWke,
City,
Stephen D.
Jefferson
appellee.
argued, for
McMILLIAN,
Judge,
Circuit
Before
BRIGHT,
Judge,
JOHN
Circuit
Senior
GIBSON,
Judge.
Circuit
R.,
BRIGHT,
Judge.
Circuit
Senior
appeals the
of his
denial
Emmitt
pursuant
corpus relief
petition for habeas
capi-
He was
convicted
28 U.S.C.
Louis
in the Circuit Court of St.
tal murder1
to death.
County,
and sentenced
Missouri
error,
allegations of
numerous
Foster raises
(1)
general categories:
into three
which fall
1983).
(1978) (repealed
§ 565.001
was convicted under Mo.Rev.Stat.
1. Foster
the district
improperly
found
searching,
utes of
Phillips questioned Walker
many
barred;
procedurally
his claims
Keys
about
jewelry,
their
point
one
rejected
the district court improperly
placing his pistol Keys’
ear. After con-
various claims of ineffective assistance of
cluding he had found all
valuables,
their
Phil-
*3
(3)
counsel;
and
the district
lips
erred
moved toward the main door. Phillips
denying
in
relief for assorted state court
told the two
Foster,
that he and
who was still
errors.
standing
Walker,
near
were leaving and
should not be followed.
We determine that the district court erred
in failing to conclude that Foster’s counsel
Keys then heard and
gunshot
felt a
and
provided ineffective assistance regarding
lost consciousness.
regained
When she
con-
Foster’s
testify
to
at
punishment
the
sciousness, Keys realized she was bleeding
phase of Foster’s
Accordingly,
ease.
we di-
from her head. She went to a neighboring
rect the district court to issue the writ vacat-
apartment
help,
to seek
but found no one.
ing Foster’s death sentence. We leave the
home,
Returning
she attempted to call the
State
option
of Missouri the
of having Foster
police,
phone
but the
was dead. Fearing she
murder,
resentenced for first-degree
or seek-
die,
Keys
soon
wrote twice on an
ing a
hearing
new
on
penalty phase
of
envelope
Philips
“Mike
[sic]” and “John
capital
murder ease. As to all other Lee,” the
name
which she knew Foster.
alleged errors,
reject
we
them for the rea-
Responding
neighbor’s
to a
phone call, the
sons set
in
magistrate
forth
judge’s find-
police
arrived
find Walker
Keys
dead and
ings adopted by the district court.
lying on the bed with a fractured skull and
jaw, and several broken facial bones and
I.
teeth. Each had
gunshots
four
received
underlying
conviction
capital
the head.
murder is based on
which
events
occurred
Keys later
photos
identified
of Phillips and
early
morning
of November
1983.
Foster as the assailants. Forensic and bal-
The state
findings
court’s
of fact rely
large
analysis
listics
established that
the bullets
part on
testimony
Keys,
of DeAnn
who
which killed Walker came from a different
victim,
lived with the murder
Travis Walker.
weapon
injured
than those that
Keys, thus
Around
2:00 a.m.
on November
indicating
of
Walker,
one
the criminals killed
Walker
telephone
received a
call from Mi-
while the
Keys.
other wounded
Police never
Phillips,
chael
companion
a
from a local soft-
weapons.
recovered the
ball team whom he had known since child-
Phillips and Foster
Phillips
separately
hood.
were tried
told
Walker
needed assis-
in the Circuit Court of
County.
tance
St. Louis
Keys
with a flat
tire.
remained in bed
jury
Phillips
convicted
first-degree
and
mur-
Foster,
Walker met
of
Phillips and
another
2der and
him
companion
imprisonment
sentenced
to life
team,
from the softball
outside
without the possibility
parole.
of
apartment.
Keys next heard the men
conversing
the living room and
Phil-
heard
During
guilt phase
of.Foster’s bifurcat-
lips ask
phone.
to use the
call,
After the
jury trial,
defendant,
ed
on counsels’
Phillips asked to use the bathroom. He did
advice,
did not
in his own defense.
bathroom,
however,
enter the
Keys
eight
Counsel did call
support
witnesses to
“Damn,
heard
say,
man,
Walker
you are
jury
Foster’s alibi. The
guilty
found Foster
tripping.” Phillips then entered the bedroom
capital
punishment
murder. At the
phase
Keys
and ordered
living
into the
room at
again
trial
testify.
Foster
did not
gunpoint.
death,
recommended
sentence of
room,
In
living
Phillips
Keys
judge
forced
jury’s
followed the
recommenda-
lie next to Walker. Foster then held Walker
tion. Foster
appealed
thereafter
to Mis-
Keys
gunpoint
Phillips
while
Court,
searched
Supreme
souri
which affirmed his con-
bedroom
valuables. After
min-
five
(Mo.
viction.
State
II. properly claim came before the district court. Armontrout, 1377, 1392 F.2d See Laws v. 863 that counsel his Foster contends violated (8th Cir.1988), denied, 1040, cert. 490 U.S. rights by waiving fundamental constitutional (1989). 1944, 104 109 S.Ct. L.Ed.2d 415 testify right to with- his Report and Recommendation of United obtaining his informed consent. out first Judge, Magistrate adopted States fed though he claims Foster that even desired court, rejected sixth eral district testify, informed him that he counsel never prove prejud claim failure to amendment do so. ice.4 Initially the Government asserts that raising Foster his Counsel procedurally barred from Because contends Foster him of failed to inform his this claim of ineffective assistance counsel. analyze argument protect right, we its thus failed to
The Government bases
appellate
any
failure
as one of ineffective assistance of
Missouri
court’s
to find
claim
pur
Supreme
counsel claim to the state tribunal
Rule 27.26 was re-
tance of
3. Missouri
Court
11,
February
pealed
27.26.
court ruled on the
suant to Rule
That
claim.
to federal re
merits of Foster’s
No bar
risk of
in a
4. While defendant bears the
error
-
Nunnemaker,
view exists. See Ylst
-,
U.S.
proceeding,
Thompson,
post-conviction
Coleman v.
2590, 2593,
-,
111 S.Ct.
115 L.Ed.2d
-
-,
2546, 2567,
-,U.S.
111 S.Ct.
739,
Dowd,
(1991);
706
Evans v.
F.2d
741
932
(1991);
Wyrick,
L.Ed.2d 640
Mitchell v.
727
115
—
denied,
-,
(8th Cir.),
U.S.
112 S.Ct.
cert.
773,
(8th
denied,
Cir.),
F.2d
cert.
469 U.S.
385,
L.Ed.2d 335
(1984),
witness the as follows: phase, obviously, you and did your in pre- Q Waldemer, [Mr. counsel for State of trial discussions with him tell Mr. Foster you Missouri] Did discuss with Mr. Foster that the would be informed of his possibility the testifying? prior convictions at penalty phase? the subject A That up came more than A I do not at this time say- remember once, yes. that, ing I but in all the occasions that we Q What was the substance of those talked about it I am certain that it came discussions? up, but I don’t remember now when A agreed Emmitt with us tha.t because it did. priors of his and the fact that he would be Q You were aware of that fact? impeached with if testify them he did Oh, A yes. it probably would better if be did he not. Q you Did tell [Mr. Foster] he could Q you explain Did to Emmitt what testify penalty in phase if he chose to place would during take penalty phase do so? should it be reached? A I discussing don’t recall penalty A Yes. of him testifying at .penalty phase. Q you explain Did to Emmitt he had a Q Didn’t it you occur to that his testi- testify during the trial if he want- mony in would allow the ed to? jury to insight have more into man Ms. [Counsel Soffer Objec- for Foster]: Emmitt Foster was? tion, your Honor, leading. that’s A guess I is, answer no. THE COURT: Sustained. .Q you So didn’t think that could be Q [Mr. you Waldemer] Did discuss helpful in terms of it leading to miti- some Emmitt’s testifying [sic]? gating evidence? A phase? In the penalty A I don’t see how it could have been. Q anyAt time time [sic]. (PCR 129-30.) Tr. I at Vol. Foster stated he it, A I subject As recall up came not did testify know he could principally testifying about in guilt penalty stage, explaining why thus he did not phase of the trial. pressume cannot [sic] ask do so: appel- to the state Reference Emmitt, penalty your meet- in Soffer] Q [Ms. insight into the reasoning offers late court’s Dunne— or Aylward Mr. ings Mr. with faulty conclusion: for the basis your back, regards
well, me start let he you met advised movant Clearly, Dunne before Mr. with meétings guilt testify during the not you had the recall whether Aylward do Mr. so, that, if did stage of the trial you wanted him that you told to attack used convictions prior this matter? to tes- not credibility. Movant decided testifying. Yes, about I asked A stage and offered guilt tify during the response Dunne’s Mr. Q what And not testi- also did Movant of alibi. defense to that? trial, stage of the during fy then if Ime testified They told A were now though his convictions even give a would bring then —that out would pun- the issue of bearing on admissible as bring my out opportunity an prosecutor testimony of in the noted As ishment. prior convictions. hearing, movant’s at the 27.26 trial counsel you heard you when think Q did What been have testimony point at that? dur- of alibi the defense inconsistent testify no Well, I didn’t want stage and would guilt ing the my [sic] to here them I didn’t want more. him. beneficial been prior convictions. at 907-08. Id. you that they explain to Q Did right to knew of his The fact that phase that go into were to case justify a stage does not guilt *6 your informed of would then jury the testify at knew he could finding that Foster prior convictions? Furthermore, counsels’ penalty phase. the No,.they didn’t. A testify- advising against Foster rationale you they tell about Q did What disappeared phase at guilt ing phase? penalty already con- been stage. Foster had penalty murder, of two respect. and faced one capital Nothing victed of A n sentences, or imprisonment life possible you or whether they inform of Q Did decided; guilt had The issue of been death. testify right at that you had not present evi- desperately needed time? penalty. against the death mitigating dence No, they didn’t. A counsel, pre- inescapable that facts are The was submitted Q the case After comprehend this they failed to cisely because you did at its jury it returned verdict distinction, into be- misled Foster significant testify you could them if any ask time phase penalty testifying at the lieving that penalty phase? because negatively affect the outcome might knowledge No, I have no didn’t testify at not to given him prior of the advice So, know, you it never testify. I could phase). (guilt the trial testify try to I my mind to even entered court, same relying upon the The federal I could. didn’t believe appeals, con- reasoning the state court as 40-41.) (PCR Tr. at Vol. made a counsel “[petitioner’s trial cluded: based on the appeals, The state during the testify him judgment to have not is no indication foregoing, that “[t]here found it was believed penalty phase because testimony would have of what [Foster’s] testimony not be beneficial would petitioner’s that movant is no indication been. There stage the proceedings.” him at that to. igno- he was by counsel or that was misled of United and Recommendation (Report n testify.” 748 right rant of his 25.) finding Judge This Magistrate at States S.W.2d at infirmity ap- logical same from the suffers court, and there- appellate plied by the state simply support does not The these record that, clearly errone- as must be characterized fore mislead Foster findings counsel did not ous. at that Foster knew
1457
III.
district court failed to
prejudice,
find
noting
that Foster did
explain
not
at his Rule 27.26
A criminal
right
defendant’s
to put
hearing the content of
proposed
his
defense,
on a
including
right
to testify in
phase testimony. Foster asserts
behalf,
one’s
that inef-
own
is a fundamental constitu
fective
assistance
guarantee
tional
accounts for his
only
can
be waived
failure to
specific
offer
evidence at
post-
defendant himself. United States v.
conviction relief hearing regarding
Bernloehr,
749,
(8th
pro-
Cir.1987).
833 F.2d
751
posed testimony.
York,
See also Harris v.
222,
New
401 U.S.
225,
643, 645,
91
(1971).
S.Ct.
28
1
L.Ed.2d
A showing
prejudice
under Strick
An effective waiver or relinquishment of a
requires
land
the defendant to establish that
constitutional
must be
intelligent
made
counsels’ errors were so serious
deprive
as to
ly, voluntarily and knowingly. See Johnson
defendant of a
proceeding,
fair
thereby ren
Zerbst,
458,
464,
1019,
U.S.
dering the result unreliable. The defendant
82 L.Ed.
The
evidence
“
must show that
‘there is a
prob
reasonable
presented at the Rule
hearing,
27.26
howev
that,
ability
but for
unprofessional
counsels’]
er, does
support
the conclusion that coun
errors,
the result of
proceeding
explained
sel
possible
benefits of Foster
”
have been different.’ United
Bag
States v.
exercising
during
pen
ley,
667, 682,
S.Ct.
alty phase. Under
circumstances,
these
Fos
they do an words find able to I won’t be They That protection. some a have all, I And most be said now. being that must (indicating) not to that have did, not you would if I that even deterring afraid am call there, we that’s what swayed. him. added).) (Trial (emphasis Tr. at 979 family] victim’s [referring to the They ... apparent from case, prejudice is In this grand- their son and right to have had the to defen- referred prosecutor record. natural of his the rest for brother son and was re- mother “that.” Foster’s as a dant us deemed somebody superior to life, until The evi- son. for her speaking stricted (indicat- and not him to die it time Foster probability shows a fair dence ing). Walker, his col- but that have shot did.7 crime, Phillips, Michael in the
league
be executed.
that he should
is
...
It
not,
know,
jury did
although the
We-also
religious discussion
been some
There has
heinous,
crime,
not neces-
did
that this
albeit
the Golden
have
Christians
here. The
Phillips
penalty, as
for the
sarily call
death
you
what
‘Do unto others
Rule.
least
At
imprisonment.
life
had received
reverse
Muslims
unto.you.’
them do
record,
exists between
no distinction
this
says, ‘Do not
Koran
and the
process,
All of
Phillips
that of Foster.
conduct of
him
you would have
what
others
do unto
conclu-
logical
ato
circumstances lead
these
says, ‘Man
you.’ And Confucius
do unto
flowing from
prejudice to
sion
hope
right, not for
is
that which
should do
deficiency.
counsels’
punishment. Man
for fear
reward
everything
nothing to lose and
had
. Foster
is
right, because
is
do what
should
by testifying at
gain
That is what
a man.’
means to be
what it
His
already
been established.
guilt
His
had
man,
(indicating)
essence
penalty re-
death
escape
only chance
is no man.
life, asking the
own
quired plea
for his
added).)
(Trial
(emphasis
at 975-77
Tr.
a human
himself as
mercy, portraying
attempted to dehu-
prosecution
While
being.
mind,
juror’s
the de-
in each
manize Foster
because
take the stand
failure to
potentially
elicit
in its efforts to
fense failed
virtually guaran-
incompetence
of counsels’
*8
pertaining to defendant’s
mitigating evidence
circum-
under the
the death sentence
teed
preclud-
was
example,
defense
For
life.
incompetent waiv-
Absent counsels’
stances.
from
information
eliciting certain
ed from
testify,
is a
there
of Foster’s
er
Although
chal-
mother.6
defendant’s
probability the
reasonable
exclusion,
exists
evidence
lenged the
no
penalty. See
the death
have recommended
recognized the ever-
thereafter
the defense
106
Murray, 477 U.S.
Smith
offering
testi-
Foster’s
increasing urgency in
(Ste-
434
L.Ed.2d
S.Ct.
mitigation.
mony in
(“The
ease
vens, J.,
record in this
dissenting)
coun-
phase, lead defense
At the
petition-
unquestionably demonstrates
suggested
prejudi-
argument
closing
sel’s
meritorious, and
constitutional claim
er’s
testify:
having his client
of not
effect
cial
will be
risk that he
significant
a
that there is
rights
constitutional
because his
put
death
here
.... As
stand
DUNNE:
MR
original)).
No
(emphasis
court,
violated.”
were
you in
I must confess
this
before
disclosed,
separate gun provided
evidence,
resulting
7.
ballistics
sus-
As
from
6.
exclusion of
This
gun
gunshot
to Walker than
wounds
Government,
the fatal
by
does
objections
made
tained
Keys. See
wound
grievously
to shoot
used
supra
testifying
importance of Foster
underscore
probability
exists
p.
50%
for himself
gun.
Phillips
with
shot Walker
nor
the court’s
today.
decision
With respect to
strategy
trial
entered into
issue,
the failure of
this
the State did not
merits,
brief the
counsel to advise defendant of
but
included with
it
some ten
others
the penalty phase.
general argument
United
procedural-
were
Cf.
Norwood,
(7th
ly
States
Cir.),
barred,
1460 testify, to not ask Thus, Foster did 44, while Arkansas, 483 U.S. v. Rock trial. his own lawyers were his that is clear record 2708, 37 the 2704, L.Ed.2d 49, been informed he had as to whether as unsure the decision is clear that (1987). The law It is evident do so. right to Foster’s, had he that is to or not to whether to advice given sufficient was not this Foster authority to make that ultimate he has his Barnes, decision about informed make an Jones able decision. fundamental testify. true particularly is This L.Ed.2d sup- record, simply there is no this With jury has a this as where such in case Ap- of the Court for the statement port remain only issue guilt, and determined was no indication there that peals of Missouri imprisonment life between choice ing is the that by counsel or “misled Foster that was long on odds had have Foster or death. testify,” and right to his ignorant of was he sentence, if he desired but life receiving the this as to of correctness presumption jury hopes that in the testify, perhaps the ease. falls from finding being that one human him as would see life, was him grant ORDER decide juror would make. decision 22, 1994. Feb. Appeals Court true, as the Missouri isIt sug- rehearing with Appellee’s petition a desire express not held, did that movant con- has been rehearing en bane gestion for testimony would testify, or what granted. and is court sidered state- The next at 908. been. S.W.2d filed on this court judgment of opinion and court, no indication is “there by the ment case 15,1993, vacated. The are December he or that misled was movant that en argument before for oral set simply testify,” is right to ignorant of Tuesday, May on p.m. 1:00 banc evidence, and accord- by the supported not and Custom Court the United States 2254(d)(8) not it is 28 U.S.C. ingly under Louis, Missouri. House St. of correctness. presumption entitled advised made clear attorneys Both but guilt phase, testify in the not to Foster what respect with uncertain were both penalty respect to with
they told Foster not he did testified Aylward phase. CASSETTE VIDEO re DUAL-DECK In phase strate- penalty detail the in what know ANTITRUST RECORDER but stated with discussed gy was LITIGATION, going they were as to how aware Foster was to be request GO-VIDEO, INC., made no a Delaware Foster to proceed. could testify. stated Corporation, Dunne Plaintiff- allowed testifying discussing” Foster Appellant, “presume not trial, although it was phase of the be better it would advice counsel’s INDUSTRI ELECTRICAL MATSUSHITA Foster’s because did Foster Company LTD., of Ja CO., Victor AL evidence. into might come convictions Corporation, Defen Ltd., Sony pan, recall discuss- he did not stated that Dunne dants-Appellees. negative effects possible ing No. 92-16709. Moreover, testifying at the testi- Dunne not occur it did Appeals, Court United States might give the mony Ninth Circuit. Dunne into Foster. insight more *10 Dec. helpful been how this not see mitigating evidence. leading to some informed he had not been definite whether
as to