Link to Eighth Circuit Opinion
The Court of Appeals for the Eighth Circuit affirmed the district court’s denial of habeas corpus relief for a death row inmate convicted of first-degree murder, first-degree assault, first-degree burglary, and two counts of armed criminal action. The inmate argued a Batson challenge, ineffective assistance of counsel, due process violations, and prosecutorial misconduct.
I. Facts and Holding
A. Background
The defendant, Andre Cole, was married to his wife Terri for eleven years before divorcing in 1995.[2] Cole failed to supply the court-ordered child support, and by August 1998 he was behind by almost $3,000.[3] On August 21, 2008, after learning that his wages would be garnished to pay the support, Cole went to his ex-wife’s house and forced entry by throwing a tire iron through the back patio door into the living room.[4] Terri’s friend Anthony Curtis requested that Cole depart, to which Cole responded by stabbing and slashing the man more than twenty times.[5] After fatally wounding Curtis with an eight-inch deep knife wound to the back, Cole wielded the blade on his ex-wife Terri, who managed to survive the assault.[6] DNA evidence confirmed that Curtis’ blood appeared on the weapon and Cole’s blood appeared at the crime scene.[7] Cole argued that he broke into the home without a weapon and that the much-larger Curtis had actually attacked him.[8] A jury convicted Cole on all counts, and he was sentenced to death.[9] Cole timely appealed to the district court for habeas corpus relief.[10]
B. Habeas Corpus Action
Cole raised numerous claims in his petition, the district court denied each without a hearing, and the Eight Circuit certified the following claims for appeal: “(1) a Batson claim regarding [a] black veniremember . . . who was struck by the prosecution; (2) . . . ineffective assistance of counsel based on counsel’s failure to investigate Cole’s social and medical history, specifically on the days leading up to the crime; (3) . . . ineffective assistance of counsel based upon counsel’s failure to present evidence during the penalty phase about Cole’s exemplary prison conduct while awaiting trial; (4) due process claims based upon Cole’s allegedly visible leg restraint during the guilt and penalty phases; (5) claims for prosecutorial misconduct during closing argument in both the guilt and penalty phase; and (6) the cumulative effect of the foregoing errors.”[11]
1. The Batson Challenge
The defendant argued that the state’s use of a peremptory challenge to strike an African American man from the venire violated Batson v. Kentucky.[12] The prosecutor’s race-neutral reason for the strike was primarily based on the venireperson being divorced like the defendant and that a divorced juror might feel sympathy for the defendant.[13] The Supreme Court of Missouri approved and found that “equivocal answers about the death penalty and having a cousin with a murder conviction” also qualified as race-neutral reasons under Batson.[14] The Eighth Circuit noted that the trial court’s Batson analysis may have been lacking, but the Supreme Court of Missouri’s analysis “was not contrary to, nor an unreasonable application of, Supreme Court precedent.”[15]
2. Failure to Investigate Cole’s Mental and Emotional Disturbance
This argument essentially boiled down to an ineffective assistance of counsel claim under Strickland.[16] Cole argued that although he “had undergone two pretrial psychiatric evaluations by mental health experts…counsel should have had him evaluated by a third.”[17] The Supreme Court of Missouri considered the argument on the merits, finding no deficiency by counsel because the two experts who previously analyzed Cole had concluded that he did not suffer from a mental disease or defect when he committed the crime.[18] Thus, the Supreme Court of Missouri found that a failure to shop for a contrary expert was not ineffective assistance of counsel, and the Eight Circuit held that such a determination was not an unreasonable application of Strickland.[19] Further, Cole likely did not suffer any prejudice from counsel’s failure to seek out a more favorable psychiatric evaluation because the trial court already had two strong expert opinions on the record.[20]
3. Failure to Investigate and Present Evidence Regarding Cole’s Exemplary Prison Conduct
The next failure to investigate argument was again an ineffective assistance of counsel claim under Strickland.[21] Cole argued that counsel failed to investigate and present three witnesses: two employees of the jail and a nun in charge of religious services.[22] The jail employees would have allegedly testified to Cole’s character, stating that he was “mild mannered” and “an exceptional worker.”[23] The nun would have claimed that Cole “spoke from the heart” during prayer and that he was a “polite class leader who was respected among the inmates.”[24]
At the defendant’s Rule 29.15 motion hearing, counsel testified that “her experience with presenting evidence on a defendant’s good behavior in jail was generally ineffective.”[25] The Supreme Court of Missouri found that counsel’s strategic decision-making was sufficient and that such evidence would have been cumulative of Cole’s other character witnesses.[26] The Eighth Circuit affirmed the district court’s denial of this point.[27]
4. Visible Restraint
Cole argued that the state violated his due process rights under Deck v. Missouri because his leg brace restraint was allegedly visible to jurors during the guilt and penalty phases of his trial.[28] Cole’s original motion for postconviction relief did not include an argument under Deck because Deck had not been handed down at that time.[29] After Deck held that unjustified restraint during the penalty phase was unconstitutional, Cole filed a motion to recall the mandate and included the shackling argument.[30]
The Eighth Circuit dismissed Cole’s argument pertaining to shackling during the guilt phase because he failed to adequately preserve the claim for review by the state courts.[31] The court reasoned that “unjustified restraint during the guilt phase” has been unconstitutional since 1986 and Cole should have raised the point of error in his earlier appeals.[32] However, the court considered the argument pertaining to shackling during the penalty phase because the Deck decision had come down after Cole’s original appeal and was raised as soon as possible in his motion to recall the mandate.[33]
Cole’s argument failed on the merits because the restraint was essentially a knee brace underneath his pants and even Cole’s own attorney was unaware that he was physically restrained until Cole told her.[34] The court reasoned that since “his own attorney was unaware that Cole was restrained, it is extremely unlikely that the jury was aware of it.”[35] Thus, Deck’s prohibition of “visible shackles” was not violated, and the district court ruled properly.[36]
5. Prosecutorial Misconduct
Cole argued that the prosecutor’s closing remarks, during both the guilt and the penalty phases, prejudiced him and rendered his trial “fundamentally unfair.”[37] Defense counsel did not object to any of the allegedly improper statements at trial; thus, none of the claims were preserved for direct appeal.[38] The Supreme Court of Missouri rejected the majority of Cole’s claims under the plain error standard and found that the “convicted killer” statement by the prosecutor was “a single inadvertent remark” that did not prejudice the defendant.[39]
The Eighth Circuit analyzed the prosecutor’s statements and found them to be “either not improper, or even if they were, . . . not so inflammatory and prejudicial as to render the trial fundamentally unfair and constitute a denial of Cole’s due process.”[40] The court again found that the Supreme Court of Missouri’s decision was not an unreasonable application of U.S. Supreme Court precedent.[41]
II. Legal Background
Batson v. Kentucky controls challenges regarding peremptory strikes of venirepersons for race-based reasons.[42] The court’s examination of a challenged peremptory strike under Batson requires a three-step analysis.[43] First, the defendant must make a prima facie showing that the prosecutor exercised a peremptory challenge of a person based on race.[44] Next, the state must rebut this showing by putting forth a race-neutral explanation for the strike.[45] Finally, after the state presents its race-neutral explanation, the trial court makes the decision whether or not the defendant has established “purposeful discrimination.”[46]
Strickland v. Washington controls a defendant’s claims of ineffective assistance of counsel in criminal cases.[47] This standard, known as the performance and prejudice test, requires the defendant to satisfy two prongs.[48] First, the defendant must show that the attorney’s conduct fell below an “objective standard of reasonableness,” thereby rendering representation “deficient.”[49] If that prong is met, the defendant must prove there is a “reasonable probability” that but for the deficient representation, the outcome would have been different.[50]
Deck v. Missouri controls whether a defendant can be visibly shackled or restrained during the penalty phase of a capital case.[51] This decision essentially imported the reasoning and holding of Holbrooke v. Flynn, where the Court held that a defendant may not be visibly shackled during the guilty phase of a capital case unless the restraint is justified by an essential state interest.[52] A violation of Deck at the penalty phase, or Holbrooke at the guilt phase, renders the proceeding fundamentally unfair and requires a new trial.[53]
Darden v. Wainwright controls whether a defendant can be granted habeas corpus relief due to prosecutorial misconduct.[54] Under Darden, a defendant is granted relief if the prosecutor makes an improper closing argument that “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’”[55] Courts must exercise this oversight under narrow due process standards, rather than the “‘broad exercise of supervisory power.’”[56]
III. Comment
Cole v. Roper demonstrates what most defendants on death row in the State of Missouri are expected to do: throw as many arguments at the court as possible and see what sticks. The majority opinion in Roper dispatched with Cole’s arguments fairly easily, but the dissent believed enough error existed that Cole deserved a new penalty phase trial.[57]
The dissent believed that trial counsel’s failure to investigate and present evidence regarding Cole’s behavior during pre-trial detention rendered Cole’s representation constitutionally ineffective.[58] The majority and the dissent agreed on the facts of the case but applied them differently to the law.[59] The majority gave deference to the Supreme Court of Missouri’s conclusions regarding the failure to investigate being a legitimate trial strategy.[60] The dissent believed that the strategy of not presenting evidence of behavior during pre-trial detention could be a legitimate trial strategy but that the utter failure to investigate this behavior in the first place was unacceptable.[61] Thus, in the eyes of the dissent, the Supreme Court of Missouri’s approval of counsel’s failure to investigate was unreasonable.[62]
Defense counsel in capital cases should see Cole v. Roper as the court protecting counsel’s discretion, but the dissent makes a valid point. Even if an attorney does not plan to present evidence regarding a defendant’s behavior during pre-trial detention, the attorney should at least conduct a minimal investigation when he visits the defendant at the jail. This effort would balance the interest of the defendant, who wants his case fully investigated, and the defense counsel, who must be afforded discretion in trial strategy.
- Chris Dandurand
[1] 623 F.3d 1183 (8th Cir. 2010) (Cole III).
[2] Id. at 1186.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. Cole’s convictions and sentences were upheld by the Supreme Court of Missouri on direct appeal. State v. Cole, 71 S.W.3d 163 (Mo. 2002) (Cole I). The trial court also denied Cole’s Rule 29.15 motion for post-conviction relief; the denial was affirmed on appeal. Cole v. State, 152 S.W.3d 267 (Mo. 2004) (Cole II).
[10] Cole III, 623 F.3d at 1186.
[11] Id. at 1186-87. The argument regarding the cumulative effect of errors was foreclosed by precedent and not discussed at any length in the opinion. Id. at 1196 (citing Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002)).
[12] Id. at 1187.
[13] Id.
[14] Id. at 1188.
[15] Id.
[16] Id. at 1189. The performance and prejudice test requires the court to “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance” 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, 690, 694 (1984).
[17] Id.
[18] Id. at 1190.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id. at 1190-91.
[24] Id. at 1191.
[25] Id. at 1190.
[26] Id at 1190-91.
[27] Id. at 1191.
[28] Id. Deck v. Missouri held that due process was violated by visibly shackling a defendant during the penalty phase of a capital trial without a justifiable state interest. 544 U.S. 622, 630-32 (2005).
[29] Id.
[30] Id.
[31] Id. at 1192.
[32] Id.
[33] Id.
[34] Id. at 1193.
[35] Id.
[36] Id.
[37] Id. Cole objected that the prosecutor: personalized the evidence by saying, “I can’t emphasize enough to you the seriousness of this case nor can I emphasize enough to you the strength of the State’s case;” accused Cole of sneaking around and terrorizing Terri at night; destroyed Cole’s presumption of innocence by stating that defendants are usually “sitting in that chair…for a reason;” called Cole a “convicted killer;” made statements regarding sending a message to the people of St. Louis County about justice; and unfairly appealed to the jury’s sympathy by characterizing Terri as a “dying woman.” (Terri was suffering from the effects of Lou Gehrig’s Disease at the time of trial). Id. at 1193-94.
[38] Id. at 1194.
[39] Id. The Supreme Court of Missouri reasoned that the “convicted killer” remark did not prejudice Cole because the jury had previously been apprised of Cole’s actual prior convictions, none of which involved a homicide. Id.
[40] Id. at 1195.
[41] Id. at 1196.
[42] 476 U.S. 79, 89 (1986).
[43] See Snyder v. Louisiana, 552 U.S. 472, 476-77 (2010).
[44] Id.
[45] Id.
[46] Id.
[47] 466 U.S. 668 (1984).
[48] Id. at 687.
[49] Id. at 687-88.
[50] Id. at 694.
[51] 544 U.S. 622 (2005).
[52] 475 U.S. 560, 567-68 (1986).
[53] Deck, 544 U.S. at 629; Holbrook, 475 U.S. at 567-68.
[54] 477 U.S. 168 (1986).
[55] Id. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).
[56] Id. (quoting Donnelly, 416 U.S. at 642).
[57] 623 F.3d 1183, 1200 (8th Cir. 2010) (Cole III).
[58] Id. at 1197.
[59] Id. at 1196-1200.
[60] Id. at 1197.
[61] Id. at 1198.
[62] Id.
