Supp Pet Cert

No.
_______
IN THE SUPREME COURT OF THE UNITED STATES
LEON TAYLOR,
Petitioner,
v.
DONALD ROPER, SUPT., POTOSI CORRECTIONAL CENTER
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO

THE EIGHTH CIRCUIT U.S. COURT OF APPEALS
THIS IS A CAPITAL CASE
EXECUTION SCHEDULED FOR 12:01 A.M. NOVEMBER 19, 2014
APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner moves the Court for its order permitting him to file the
attached petition for a writ of certiorari in forma pauperis. Petitioner has
proceeded in forma pauperis at all stages of this proceeding in the courts of
the United States, and is represented by the undersigned counsel pursuant to
an appointment under the Criminal Justice Act.
Respectfully submitted,
Elizabeth Unger Carlyle

*Counsel of Record
6230 Brookside Plaza #516
Kansas City, MO 64113
(816)525-6540
ATTORNEY FOR PETITIONER
No._______
IN THE SUPREME COURT OF THE UNITED STATES
*****
LEON TAYLOR,
Petitioner,
v.
DONALD ROPER, SUPT. POTOSI CORRECTIONAL CENTER
Respondent.
*****
ON PETITION FOR WRIT OF CERTIORARI TO
THE EIGHTH CIRCUIT U.S. COURT OF APPEALS
THIS IS A CAPITAL CASE
EXECUTION SCHEDULED FOR 12:01 A.M. NOVEMBER 19, 2014
*****
PETITION FOR WRIT OF CERTIORARI
*****
ELIZABETH UNGER CARLYLE
(Counsel of Record)
Kansas City, Missouri 64113
(816) 525-6540
Kathryn B. Parish
SINDEL SINDEL & NOBLE, P.C.
8000 Maryland Ave., Suite 350
Clayton, Missouri 63105
(314) 721-6040
Counsel for Petitioner
QUESTIONS PRESENTED
After completing habeas corpus review of his conviction and death
sentence, Mr. Taylor filed a motion to recall mandate and alternative petition
for writ of habeas corpus in the Missouri Supreme Court in 2010. That court
denied the motion without opinion on May 27, 2014. Mr. Taylor then filed a
supplemental petition for writ of habeas corpus, alleging (as he had in the
Missouri Supreme Court) that his right to due process of law was violated
when the Missouri Supreme Court refused to resentence him to life
imprisonment without parole after doing so for every other surviving prisoner
with a death sentence imposed by a judge after a hung jury. The U.S. District
Court denied relief, finding that the petition was a second or successive
petition which could not be filed without leave of the court of appeals, and
alternatively that the petition failed on the merits because Mr. Taylor had
received a new sentencing hearing before a jury after a successful appeal of
his judge-imposed sentence. A certificate of appealability was denied by both
the district and circuit courts. This case thus presents the following
questions:
1. Whether Mr. Taylor is entitled to a certificate of appealability when the

Second, Seventh and Ninth Circuits and U.S. District Court for the District of
i
Nevada have resolved the procedural issue in his case differently than the
U.S. District Court for the Western District of Missouri and the issue is
therefore debatable among jurists of reason?
2. Whether Mr. Taylor was denied his rights to due process of law, equal
protection of the law and to be free from cruel unusual punishment when the
Missouri Supreme Court, following the Missouri Supreme Courts decision in
Ring v. Arizona, vacated the death sentences of every prisoner who had been
sentenced to death by a judge after a jury deadlock except Mr. Taylor?
ii
TABLE OF CONTENTS
Questions presented ............................................................................................. i
Table of Contents ................................................................................................ iii
Table of Authorities ..............................................................................................v
Opinions below ......................................................................................................1
Jurisdiction............................................................................................................1
Statutory and Constitutional Provisions Involved .............................................1
Statement of the Case ..........................................................................................7
Reasons for Granting the Writ .......................................................................... 11
I. Mr. Taylor is entitled to a certificate of appealability because the
lower courts resolution of the procedural question as to whether his
supplemental petition is second or successive under 28 U.S. C.
2244 is debatable among jurists of reason........................................ 11
II. By its disparate treatment of identically situated persons under
sentence of death, the Missouri Supreme Court has violated Mr.
Taylors right to due process of the law.. ............................................ 16
Conclusion .......................................................................................................... 25
Appendix
Order of the U.S. Court of Appeals, Eighth Circuit ............................... 1a
Order of the United States District Court, W.D. Missouri .................... 2a
State v. Taylor, 924 S.W.2d 925 (Mo. banc 1997) ................................ 10a
State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000) .................................. 29a
Taylor v. State, 661 S.W.2d 794 (Mo. banc 2004) ................................ 45a
iii
Taylor v. Roper, 577 F.3d 848 (8th Cir. 2009) ....................................... 54a
Order denying rehearing ....................................................................... 76a
iv
TABLE OF AUTHORITIES
Cases
Batson v. Kentucky, 476 U.S. 79 (1986) ............................................................. 9

Burks v. United States,, 437 U.S. 1 (1978) ...................................................... 19
Greene v. Massey, 437 U.S. 19 (1978) .............................................................. 19
Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) ................................ 10, 16, 21, 23
Johnson v. United States, 623 F.3d 41, 44 (2d Cir.2010) ................................ 14
Magwood v. Patterson, 561 U.S. 320, 342 (2010) ..................... 11, 12, 13, 14, 15
Martin v. Bartow, 628 F.3d 871 (7th Cir. 2010) ................................................ 13
North Carolina v. Pearce, 395 U.S. 711, 724 (1969) .................................. 16, 24
Ring v. Arizona, 536 U.S. 584 (2002) ...................................... ii, 8, 16, 18, 21, 23
Roper v. Weaver, 550 U.S. 598, 601-02 (2007) ................................................. 21
Simmons v. United States, 390 U.S. 377 (1968) ........................................ 16, 24
Smith v. Williams, ECF No. 2:12-cv-00952 ...................................................... 14
State ex rel. Baker v. Kendrick, 136 S.W.3d 491 (Mo. banc 2004) ............. 9, 18
State ex rel. Mayes v. Wiggins, 150 S.W.3d 290 (Mo. banc 2004)............... 9, 18
State v. Buchanan, 115 S.W.3d 841 (2003) ........................................................ 9
State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000) ........................................... iii, 8
State v. Taylor, 924 S.W.2d 925 (Mo. banc 1997) ......................................... iii, 8
State v. Thompson, 134 S.W.3d 32 (Mo. banc 2004) .............................. 9, 17, 19
State v. Thompson, 85 S.W.3d 635 (Mo. banc 2004) ........................................ 17
State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003)...... 9, 16, 17, 19, 21, 23, 24
Taylor v. Roper, 577 F.3d 848 (8th Cir. 2009) ................................................ iv, 9
Taylor v. State, 661 S.W.2d 794 (Mo. banc 2004) ......................................... iii, 8
Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012) ............................ 14, 15
Worcester v. Commissioner of Internal Revenue, 370 F.2d 713, 718 (1st Cir.
1966) ................................................................................................................ 24
Statutes
28 U.S.C. 1254 .................................................................................................... 1
28 U.S.C. 2244 ............................................................................. iii, 2, 10, 11, 12
28 U.S.C. 2253 .................................................................................................... 6
Mo. Rev. Stat. 565.030 ................................................................................. 8, 16
Mo. Sup. Ct. R. 91 .............................................................................................. 10
U.S. Const. Amend. VIII ................................................................................ 2, 10
U.S. Const. Amend. XIV .............................................................. 2, 10, 21, 22, 23
v
Other Authorities
Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 758
(1982) .................................................................................................................. 20
vi
PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
The Petitioner, Leon Taylor, respectfully prays that a writ of certiorari
issue to review the judgment of the United States Court of Appeals for the
Eighth Circuit, rendered in these proceedings on November 17, 2014.
OPINIONS BELOW
The U.S. District Court for the Western District of Missouri denied a
certificate of appealability on November 12, 2014. The courts order and
judgment is found in the Appendix at p. A-2. The United States Court of
Appeals for the Eighth Circuit denied a certificate of appealability and
dismissed the appeal without opinion. The Courts summary order is found in
the Appendix at p. A-1.
JURISDICTION
The United States Court of Appeals entered judgment on November 12,
2014. A timely petition for rehearing was denied on November 17, 2014.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Amend. VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
U.S. Const. Amend. XIV, Section 1.

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
28 U.S.C. 2244
(a) No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention of a
person pursuant to a judgment of a court of the United States if it appears
that the legality of such detention has been determined by a judge or court of
the United States on a prior application for a writ of habeas corpus, except as
provided in section 2255.
2
(b) (1) A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be
dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior application
shall be dismissed unless
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to
consider the application.
3
(B) A motion in the court of appeals for an order authorizing the

district court to consider a second or successive application shall
be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or
successive application only if it determines that the application
makes a prima facie showing that the application satisfies the
requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to
file a second or successive application not later than 30 days after
the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals
to file a second or successive application shall not be appealable
and shall not be the subject of a petition for rehearing or for a
writ of certiorari.
(4) A district court shall dismiss any claim presented in a second or
successive application that the court of appeals has authorized to be filed
unless the applicant shows that the claim satisfies the requirements of this
section.
(c) In a habeas corpus proceeding brought in behalf of a person in
custody pursuant to the judgment of a State court, a prior judgment of the
4
Supreme Court of the United States on an appeal or review by a writ of

certiorari at the instance of the prisoner of the decision of such State court,
shall be conclusive as to all issues of fact or law with respect to an asserted
denial of a Federal right which constitutes ground for discharge in a habeas
corpus proceeding, actually adjudicated by the Supreme Court therein, unless
the applicant for the writ of habeas corpus shall plead and the court shall
find the existence of a material and controlling fact which did not appear in
the record of the proceeding in the Supreme Court and the court shall further
find that the applicant for the writ of habeas corpus could not have caused
such fact to appear in such record by the exercise of reasonable diligence.
(d) (1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented
from filing by such State action;
5
(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
28 U.S.C. 2253
(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal, by
the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding
to test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such persons detention pending

removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a
constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by
paragraph (2).
STATEMENT OF THE CASE

Leon Taylor is an African American man who was convicted of first
degree murder in Jackson County, Missouri on March 6, 1995, for killing a
white man, Robert Newton. At Mr. Taylors trial and his original sentencing,
there were four African- Americans on the jury. This jury deadlocked as to
7
sentencing. Despite this, the judge imposed a sentence of death as permitted

by Mo. Rev. Stat. 565.030 at that time. Mr. Taylor appealed his conviction
and sentence on May 4, 1995.
The Missouri Supreme Court reversed Mr. Taylors death sentence due
to the prosecuting attorneys inflammatory sentencing argument, and
remanded for a new sentencing hearing. State v. Taylor, 924 S.W.2d 925 (Mo.
banc 1997), found in the Appendix beginning at page 10a. At jury selection
before the new hearing, the prosecuting attorney utilized peremptory strikes
and challenges for cause to eliminate all six African American members of
the jury panel, making the jury sitting in judgment of Mr. Taylor all white.
This all-white jury recommended a death sentence for Mr. Taylor and the
judge, while expressing misgivings about the result given the racial dynamics
of the case, imposed the jury recommended sentence on April 22, 1999. Mr.
Taylors second death sentence was affirmed on direct appeal on May 9, 2000,
in State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000) (App. p. 29a). The Missouri
Supreme Court affirmed the denial of post-conviction relief. Taylor v. State,
661 S.W.2d 794 (Mo. banc 2004). (App. p. 45a).
Meanwhile, following this Courts decision in Ring v. Arizona, 536 U.S.
584 (2002), The Missouri Supreme Court held that, as a matter of Missouri
law, the holding that a judge could not make the factual findings necessary
8
for a sentence of death was retroactive. State v. Whitfield, 107 S.W.3d 253
(Mo. banc 2003). Mr. Taylor then filed in the Missouri Supreme Court a
motion to recall the mandate in his direct appeal case. The motion was based
on the change in intervening law since the Missouri Supreme Courts decision
affirming Mr. Taylors conviction but remanding for a new sentencing
hearing. The motion cited the Missouri Supreme Courts rulings in Whitfield
as well as State v. Thompson, 134 S.W.3d 32 (Mo. banc 2004); State ex rel.
Mayes v. Wiggins, 150 S.W.3d 290 (Mo. banc 2004) (Trial court could not
order punishment phase retrial after jury deadlocked on punishment); State
ex rel. Baker v. Kendrick, 136 S.W.3d 491 (Mo. banc 2004) (Trial court could
not order punishment phase retrial after its authority to grant a new trial
ended) and State v. Buchanan, 115 S.W.3d 841 (2003).
Mr. Taylor filed a petition for writ of habeas corpus in the United
States District Court for the Western District of Missouri. That court denied
relief, and denied a certificate of appealability. The United States Court of
Appeals for the Eighth Circuit granted a certificate of appealability as to two
issues alleging violations of Batson v. Kentucky, 476 U.S. 79 (1986), but
ultimately denied relief and affirmed Mr. Taylors conviction and sentence.
Taylor v. Roper, 577 F.3d 848 (8th Cir. 2009). (App. p. 54a). The original
petition alleged a violation of the Equal Protection Clause arising from the
9
failure of the Missouri Supreme Court to commute Mr. Taylors sentence to

life without parole, but did not include a due process claim arising from that
fact.
On September 2, 2010, Mr. Taylor again moved the Missouri Supreme
Court to withdraw its mandate or grant him habeas corpus relief under Mo.
Sup. Ct. R. 91. In this motion, Mr. Taylor asserted that the failure of the
Missouri Supreme Court to grant him relief violated his rights to be free from
cruel and unusual punishment, to due process of law, and to equal protection
of the law under U.S. Const. Amends. VIII and XIV. On May 27, 2014, the
Missouri Supreme Court again denied relief without opinion.
On June 26, 2014, Mr. Taylor filed a supplemental petition for writ of
habeas corpus in the U.S. District Court for the Western District of Missouri.
The petition asserted that the May 27 decision of the Missouri Supreme
Court violated his right to due process of law as announced by this Court in
Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). After full briefing, the U.S.
District Court denied relief, and denied a certificate of appealability, on
September 12, 2014. The court found that the petition could not be
considered because it fell within the requirement of 28 U.S.C. 2244 that
second or successive petitions be filed in the district court only with the
10
approval of the court of appeals. In the alternative, the district court found
that Mr. Taylor had not been denied due process of law.
Mr. Taylor appealed to the United States Court of Appeals for the
Eighth Circuit on October 14, 2014, and filed a motion for COA in that
Court. On November 12, 2014, a panel of the Eighth Circuit denied a COA
and dismissed the appeal. App. p. 1a. En banc rehearing was denied on
November 17, 2014. App. p. 75a. This petition follows.
REASONS FOR GRANTING THE WRIT

I. MR. TAYLOR IS ENTITLED TO A CERTIFICATE OF
APPEALABILITY BECAUSE THE LOWER COURTS RESOLUTION
OF THE PROCEDURAL QUESTION AS TO WHETHER HIS
SUPPLEMENTAL PETITION IS SECOND OR SUCCESSIVE
UNDER 28 U.S.C. 2244 IS DEBATABLE AMONG JURISTS OF
REASON.
A. Mr. Taylors supplemental petition is not second or
successive under 2244 because it attacks a new judgment, not
the Missouri Supreme Courts original judgment affirming his
conviction and sentence.
In Magwood v. Patterson, 561 U.S. 320, 342 (2010), this Court ruled
that [W]here . . . there is a new judgment intervening between the two
habeas petitions, . . . an application challenging the resulting new judgment
is not second or successive at all. The district courts ruling, upheld by the
panel, found that, the due process challenge raised by petitioner in the
11
motion [that was the basis for the May 17, 2014 judgment] could have been
raised in petitioners original Section 2254 petition, and, therefore, the
petition was second or successive and required the permission of this Court
to file. Doc. 93 at 6. However, this Court in Magwood specifically rejected
this one opportunity rule. Id. at 330-331, 341-342:
The State asserts that . . . Magwoods . . . claim was successive
because he had an opportunity to raise it in his first application,
but did not do so. . . . Magwood, in contrast, reads 2244(b) to
apply only to a second or successive application challenging the
same state-court judgment . . . . We agree. . . . [W]here ... there is
a new judgment intervening between the two habeas petitions, . .
. an application challenging the resulting new judgment is not
second or successive at all.)
In upholding the district courts one opportunity rule, the panel
decision contradicted this Courts ruling in Magwood.
The decision here presents a circuit split. Other courts have found that
state court judgments arising out of procedural postures that were almost
identical to that here constituted new judgments for purposes of applying
the Magwood rule and that the subsequent habeas petitions did not
constitute second or successive petitions. Even where a second-in-time habeas
petition was based partly on errors in an old judgment, Magwood is held to
allow it to be considered in district court where the state court had re-
12
evaluated its decision and entered a new judgment. This holding applies even
when the new judgment essentially reaffirms the earlier judgment.
In Martin v. Bartow, 628 F.3d 871 (7th Cir. 2010), for example, the
Seventh Circuit considered whether a petition which challenged the
petitioners civil commitment under a Wisconsin statute was filed out-of-time.
Martin had originally been committed pursuant to that statute in 1996, but
each year subsequently, the court had made a decision to continue his
commitment. Id. at 873. In 2005, Martin filed a petition for habeas corpus,
which the district Court initially dismissed, finding that it was out of time
since it challenged a commitment that occurred in 1996. Martin argued that
the judgment being challenged for purposes of calculating the statute of
limitations was not the original 1996 judgment, but rather the courts more
recent judgment again upholding his continued commitment. Id. The Seventh
Circuit agreed. Citing Justice Thomass language in Magwood to the effect
that [a]n error made a second time is still a new error, the court specifically
found: Martin is not challenging a resentencing, but he is challenging a
decision made repeatedly by the State. If that decision was made in error,
and it resulted in Martin's continued commitment, Magwood suggests that
Martin may challenge that new error separately from any previous error. Id.
at 877-878 (citing Magwood, 561 U.S. at 334)(emphasis added).
13
Similarly in Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012), the
State argued a rule analogous to that asserted by the district court and
argued by the State in this case, urging that, because the new judgment
being challenged by the supplemental habeas petition, left the convictions
and sentences on the two remaining counts unchanged, Magwood did not
apply. The Ninth Circuit disagreed, asserting that a strict interpretation of
Magwood required that the habeas petition not be considered successive.

Citing the Second Circuits decision in Johnson v. United States, 623 F.3d 41,
44 (2d Cir.2010), the court specifically found: In light of Magwood, we must
interpret successive applications with respect to the judgment challenged and
not with respect to particular components of that judgment. Wentzell, 674
F.3d 1124 (citing 623 F.3d at 46). In Smith v. Williams, the United States
District Court for the District of Nevada applied the 9th Circuits decision in
Wentzell to require the application of Magwood even where, as in this case

the new judgment was identical to the judgment previously entered. Smith v.
Williams, ECF No. 2:12-cv-00952 (See Exhibit A to Application for Certificate

of Appealability in the instant case, filed 10/21/2014). In addressing the
argument that Magwood did not apply because the new judgment did nothing
to alter the prior judgment and was intended only to reaffirm it, the court
stated:
14
Magwood has explicitly rejected the notion that 2244(b) applies
to individual claims. 130 S. Ct. at 2798. Section 2244(b) applies to

a petition as a whole, and a petition that challenges a particular
judgment. If a petition challenges the validity of a new judgment,
then 2244(b) simply is inapplicable. Id. at 2796. The distinction
in the procedural history between this case and Wentzell also
makes no difference. The judgment in Wentzell was altered, as
respondents note, while the second amended judgment in this
case is identical to the original judgment. However, Wentzell was
challenging only the parts of the amended judgment that were
not altered. There is no difference between that and petitioners
challenge to a second amended judgment that did not deviate
from the original judgment.
Id. at 6
Certiorari should be granted to resolve the conflict between the Eighth
Circuit decision in Mr. Taylors case and the decisions in the Second, Seventh
and Ninth circuits.
B. Mr. Taylor is entitled to a COA because at least three U.S.
circuit courts disagree with the U.S. District Court for the
Western District of Missouri, and the issue is therefore
debatable among jurists of reason.
On the procedural issue of whether Mr. Taylor is entitled to a COA, the
existence of contrary decisions clearly establishes that jurists of reason
could differ on whether Mr. Taylors petition is second or successive. Thus,
Mr. Taylor satisfies the standard of Slack v. McDaniel, 529 U.S. 473, 483-484
(2000), as to the procedural issue preventing review of Mr. Taylors
substantive claim.
15
II. BY ITS DISPARATE TREATMENT OF IDENTICALLY SITUATED

PERSONS UNDER SENTENCE OF DEATH, THE MISSOURI
SUPREME COURT HAS VIOLATED MR. TAYLORS RIGHT TO DUE
PROCESS OF LAW UNDER HICKS V. OKLAHOMA, NORTH
CAROLINA V. PEARCE, AND UNITED STATES V. SIMMONS.
The only difference between Mr. Taylors case and those of the ten
persons who received life sentences following the imposition of a death
sentence by a judge after jury deadlock is one that is not relevant to the legal
principle at issue in Ring v. Arizona, 536 U.S. 584 (2002). The difference is
that Mr. Taylor was granted a new penalty phase trial on a basis other than
Ring error, and that retrial was held before Ring was decided. In State v.
Whitfield, 107 S.W.3d 253, 269 (Mo. banc 2003), the Missouri Supreme Court
held that under Mo. Rev. Stat. 565.030.4, the death sentence cannot be
imposed unless the fact finder finds the first three factors set out in that
subsection against defendant. . . . . The Court then went on to hold that in
Mr. Whitfields case, the record showed that the trial judge, not the jury,
made those factual findings. Because the jury failed unanimously to find the
required facts, the Court held, the trial judges only constitutional option was
to impose a life sentence.
Answering the states objection that the remedy granted in Rings case
on remand was a new penalty phase rather than a life sentence, the Missouri
Supreme Court held that Arizonas procedure before Ring was different
16
because there, the jury had no role to play in sentencing at all. Thus, the
proper remedy in Rings case was to give him what the United States
Supreme Court said he was entitled to, a jury finding on sentencing. Mr.
Whitfield, on the other hand, had an opportunity to present his sentencing
case to a jury, but the record did not reflect the jury findings required by
Missouri law. The Missouri Supreme Court concluded,
In this circumstance, it would make defendants victory a hollow
one indeed if this Court were to hold that the remedy for the trial
judges failure to enter a life sentence is to remand to allow the
State to seek the death penalty again at a new trial. The remedy
must be to correct the error by imposing the sentence the judge
should have imposedlife imprisonment without the possibility
of probation or parole except by act of the Governor.
State v. Whitfield, 107 S.W.3d 253, 270 (Mo. banc 2003).

If Whitfield left any doubt that the Missouri Supreme Court had held
that the only proper action to correct an improper judge-imposed death
sentence is the imposition of a sentence of life, that doubt was resolved in the
Missouri Supreme Courts decision in State v. Thompson, 134 S.W.3d 32 (Mo.
banc 2004). The procedural posture of Thompsons case is remarkably similar
to Mr. Taylors. Mr. Thompson was granted a new penalty phase after the
judge imposed death because the Missouri Supreme Court found that the
judge had acted improperly in polling the jury. State v. Thompson, 85 S.W.3d
635 (Mo. banc 2004). Then, the Missouri Supreme Court recalled its mandate.
17
The Missouri Supreme Court stated, In cases where a defendant is

sentenced to death by a judge in violation of the Sixth Amendment, the only
possible sentence is life imprisonment. . . . [T]he holding in Ring. . . prohibits
judges from finding the facts necessary to support a death sentence. Id. at
33. The only difference between Mr. Thompsons case and Mr. Taylors was
that Mr. Taylor actually had his new penalty phase trial, and his sentence
was affirmed by the Missouri Supreme Court, before he moved to recall the
Missouri Supreme Courts mandate. This is a distinction without a difference.
If Mr. Taylors original death sentence was improper because the trial judges
only option upon the deadlock was to enter a life sentence, then that defect
cannot be removed by later proceedings.
Similarly, in State ex rel. Mayes v. Wiggins, 150 S.W.3d 290 (Mo. banc
2004), the Missouri Supreme Court granted a writ of prohibition where a
trial judge sought to remedy a penalty phase deadlock by granting a new
penalty trial. In Mayes, the Court held that a life sentence was required
despite the fact that the jury found statutory aggravating circumstances
because the record is devoid of findings of mitigating circumstances or as to
what circumstances the jurors relied upon when not finding that these
aggravators warranted an imposition of death. Id. at 291. As the Missouri
Supreme Court summarized in State ex rel. Baker v. Kendrick, 136 S.W.3d
18
491, 491 (Mo. banc 2004), [W]here, as here, the jury was unable to agree on
punishment and the record fails to show that the jury found all facts
necessary to impose a sentence of death, the trial courts only authority was
to enter a sentence of life imprisonment without possibility of probation or
parole. In Thompson, Mayes and Baker, the defendant was able to cure the
States attempt to launder what could be nothing other than a life verdict
before a retrial was had. The fact that the state retried Mr. Taylor before he
could seek this relief cannot remove the fact that the sentence from which
this retrial was ordered was unconstitutional, thus rendering the retrial a
nullity.
This Court holds that where a criminal defendant appealing his case is
entitled to an acquittal as well as to alternate relief, the judgment of
acquittal must be entered. Greene v. Massey, 437 U.S. 19 (1978) (Despite the
existence of other trial error which would ordinarily warrant a new trial, a
court may not order a new trial where the evidence is found legally
insufficient); Burks v. United States,, 437 U.S. 1 (1978) (An acquittal is
required upon a finding legally insufficient evidence even if the defendant
sought a new trial as relief on appeal). In Whitfield, the Missouri Supreme
Court found that when a jury fails to find the facts necessary to support a
death sentence, the defendant has been, in effect, acquitted of the death
19
penalty. Thus, even though Mr. Taylor would have been entitled to a new
penalty trial had he been sentenced to death by a jury because of the
prosecutors misconduct in argument, under Greene and Burks, he must be
granted a life sentence.
At the end of his first penalty trial, Mr. Taylor was in the same posture
as Mr. Whitfield (and the other defendants who later received life sentences).
Like them, he was given a death sentence based on the factual findings by
the judge. In Mr. Whitfields case, the Missouri Supreme Court expressly
rejected the option of giving Mr. Whitfield a new penalty phase trial. Yet,
because Mr. Taylor had previously received that relief, the Missouri Supreme
Court is apparently unwilling to put him in the same position as Mr.
Whitfield.
Equal treatment is not only a principle of constitutional law, but also a
matter of sound judicial discretion embodying what Judge Friendly described
as the most basic principle of jurisprudence that we must act alike in all
cases of like nature. Henry J. Friendly, Indiscretion About Discretion, 31
EMORY L.J. 747, 758 (1982). This Court recently recognized this principle
when it dismissed its grant of certiorari to review the federal habeas relief
accorded to Missouri prisoner William Weaver: [W]e find it appropriate to
exercise our discretion to prevent these three virtually identically situated
20
litigants from being treated in a needlessly disparate manner, simply because

the District Court erroneously dismissed respondents pre-AEDPA petition.
Roper v. Weaver, 550 U.S. 598, 601-02 (2007) (noting grant of pre-AEDPA
habeas relief to Daryl Shurn and Rayfield Newlon on identical claims of
prosecutorial misconduct).
Mr. Taylors situation is quite similar to Mr. Weavers. That is, an
intervening procedural issue has obscured the fact that Mr. Taylor, like Mr.
Whitfield and the other Missouri defendants sentenced to death based on
factual findings by judges, is entitled to a life sentence. As in State v.
Whitfield, 107 S.W.3d 253, 270 (Mo. banc 2003), the Missouri Supreme
Courts granting such relief will not burden the judicial system with the need
for a retrial. Instead, it will eliminate the need for further litigation
regarding Mr. Taylors death sentence.
Although Mr. Taylors right to retroactive application of Ring is based
on state law, this right is not merely a matter of state concern, but a liberty
interest protected against arbitrary deprivation by the Due Process Clause
of the Fourteenth Amendment. See Hicks v. Oklahoma, 447 U.S. 343, 346
(1980); Rust v. Hopkins, 984 F.2d 1486, 1493 (8th Cir.), cert. denied, 508 U.S.
967 (1993).
21
Mr. Hicks was tried and convicted as a habitual offender and sentenced
by a jury to a mandatory term of forty years imprisonment. After his
conviction, the provision of the habitual offender statute under which Mr.
Hicks was sentenced was declared to violate the Oklahoma Constitution. On
appeal, Hicks sought to have his sentence set aside and his case remanded to
have his punishment fixed by a jury. But for the habitual offender statute,
Mr. Hicks jury could have imposed any sentence between ten and forty years.
The state court held that Mr. Hicks was not prejudiced by the
constitutional violation because the forty year sentence was in the range of
punishment that could have been imposed by a properly instructed jury. The
Supreme Court granted certiorari to consider Mr. Hickss contention that the
state deprived him of due process of law as guaranteed him under the
Fourteenth Amendment when it refused to remand his case for a jury
assessment of his punishment.
The states position before the Supreme Court was that this case
involved the denial of a procedural right of exclusively state concern, Id. at
346, and did not amount to a due process violation. The Supreme Court
disagreed, holding that Mr. Hickss interest in the exercise of the jury
discretion in imposing punishment is not merely a matter of state law, but a
liberty interest that the Fourteenth Amendment preserves against arbitrary
22
deprivation by the state. Id. at 346. The Supreme Court held that the
Oklahoma courts action in affirming the sentence imposed under the invalid
habitual offender statute, based on the conjecture that a jury might have
imposed a sentence equally as harsh, arbitrarily deprived Hicks of his liberty
without due process of law in violation of the Fourteenth Amendment. Id. at
346-47.
The Missouri Supreme Court was not required, under the United
States Constitution, to apply Ring retroactively. It did so on state law
grounds. But having thus created a liberty interest under state law, the state
court is not free arbitrarily to pick and choose the identically situated persons
to whom its rules apply. Under Whitfield, Mr. Taylor has a state-created
right and liberty interest that Ring will be applied retroactively to his
case. Hicks holds that this right is protected against arbitrary deprivation
by the Due Process C lause of the Fourteenth Amendment. Mr. Taylor was
deprived of due process when the Missouri Supreme Court arbitrarily refused
to set aside his sentence of death where said sentence was imposed in
violation of his rights under Ring and Whitfield to have a life sentence
imposed after a jury failed to make the necessary factual findings to impose
death.
23
Moreover, denying Mr. Taylor his right to the Whitfield remedy of a life
sentence, in effect, punishes him for exercising his right to appeal his original
sentence. This Court has long held that the use of the right of appeal should
not result in penalties. In North Carolina v. Pearce, 395 U.S. 711, 724 (1969),
this Court prohibited sentencing courts from increasing sentences simply
because the defendant had successfully appealed. A court is without right to
. . . put a price on an appeal. A defendant's exercise of a right of appeal must
be free and unfettered. . . . [I]t is unfair to use the great power given to the
court to determine sentence to place a defendant in the dilemma of making
an unfree choice. Id. (citing Worcester v. Commissioner of Internal Revenue,
370 F.2d 713, 718 (1st Cir. 1966). A defendant should not be forced to choose
between one constitutional right and another. Simmons v. United States, 390
U.S. 377 (1968). Mr. Taylors situation is even more unfair because at the
time he appealed his improper judge sentence, he had no way of knowing that
similar sentences would later be found unconstitutional and that he would
get the benefit of that decision. Fundamental fairness requires relief here.
24
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,
ELIZABETH UNGER CARLYLE

(Counsel of Record)
Kansas City, Missouri 64113
(816) 525-6540
Kathryn B. Parish
SINDEL SINDEL & NOBLE, P.C.
8000 Maryland Ave., Suite 350
Clayton, Missouri 63105
(314) 721-6040
Counsel for Petitioner
25
UNITED STATES COURT OF APPEALS

___________________
No: 14-3315
___________________
Leon Taylor
Petitioner - Appellant
v.
Donald Roper
Respondent - Appellee
______________________________________________________________________________
Appeal from U.S. District Court for the Western District of Missouri - Kansas City
(4:04-cv-08002-FJG)
______________________________________________________________________________
JUDGMENT
Before BYE, COLLOTON and GRUENDER, Circuit Judges
This appeal comes before the court on appellant's application for a certificate of
appealability. The court has carefully reviewed the original file of the district court, and the
application for a certificate of appealability is denied. The appeal is dismissed.
The motion for stay of execution is denied as moot.
November 12, 2014
Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
1a
Appellate Case: 14-3315
Page: 1
Date Filed: 11/12/2014 Entry ID: 4215305
UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LEON VINCENT TAYLOR,
Petitioner,
vs.
DONALD ROPER,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 04-8002-CV-W-FJG
ORDER
Pending before the Court is Petitioners Supplemental Petition for Writ of Habeas
Corpus (Doc. No. 84).
Petitioner argues that on June 17, 2003, the Missouri Supreme Court issued a
decision finding Ring v. Arizona, 536 U.S. 584, 609 (2002), to be retroactive to cases
pending on collateral review where a judge made the factual determinations imposing a
sentence of death.
State v. Whitfield, 107 S.W.3d 253, 265-69 (Mo. banc 2003).
Petitioner indicates that he filed a motion to recall the mandate in the Missouri Supreme
Court raising a claim under Ring on September 7, 2010, after his federal habeas
proceedings had concluded. See Doc. No. 84, Ex. 1. On May 27, 2014, the Missouri
Supreme Court overruled the motion to recall the mandate. See Doc. No. 84, Ex. 2.
Petitioner argues that with the Missouri Supreme Courts denial of the motion to recall the
mandate, the question of whether petitioners due process rights were violated when
Missouri failed to retroactively apply Ring is now ripe for habeas review.
I.
Background and Procedural History
The Missouri Supreme Court described the facts in Taylors case as follows:
On April 14, 1994, Taylor, his half-brother Willie Owens,
and his half-sister Tina Owens were driving in Tinas car,
discussing various robbery possibilities. Taylor
2a
Case 4:04-cv-08002-FJG Document 93 Filed 09/12/14 Page 1 of 8
suggested a gas station in Independence where only one

person would be working. The trio went to the station and
purchased some gasoline. Taylor asked whether they
were going to rob it. Tina Owens said no because a little
girl was inside. Sarah Yates, an eight-year-old, was
keeping company with Robert Newton, her step-father
and the gas station manager.
The three left the station, only to return a few moments
later after the oil light came on. Willie Owens went into
the station and asked for some oil. Taylor next entered
the store and stated they needed a different weight of oil.
Taylor then drew a pistol and stated that he would shoot
Newton unless he gave them money. Newton complied,
handing Owens approximately $400 in a bank money
bag. Owens took the money and returned to the car.
Taylor directed Newton and the child to the stations back
room. Taylor shot Newton once in the head, killing him.
Taylor then pointed the gun at the child. Taylor pulled the
trigger, but the gun jammed and did not discharge.
Frustrated, Taylor locked the child in the back room and
returned to the car. Taylor told Willie and Tina Owens
that he had shot the man and that he had to go back
inside to get the little girl. However, because the
Owenses wanted to leave, they then drove away.
State v. Taylor, 944 S.W.2d 925, 930 (Mo. banc 1997).
This Court previously summarized the procedural history of this case as follows:
Petitioner was convicted upon his plea of not guilty of
first-degree murder, first degree robbery, first degree assault,
and three counts of armed criminal action in Jackson County,
Missouri, Case No. 94-1105. The jury in that trial deadlocked
on the issue of punishment for the offense of first degree
murder. The trial judge then set his punishment at death for
first degree murder, finding three aggravating circumstances
to be sustained beyond a reasonable doubt. As to the other
offenses, the trial judge sentenced petitioner to life
imprisonment for robbery, fifteen years for assault, and one
hundred years for each count of armed criminal action, and
2
3a
ordered the sentences be served consecutively to each other

and consecutively to the death sentence, for a total sentence
of death plus life plus 315 years.
Petitioner appealed his convictions and sentences to the
Missouri Supreme Court. Additionally, while the appeal was
pending, petitioner filed a motion for post-conviction relief
pursuant to Mo. Sup. Ct. R. 29.15. The trial court held an
evidentiary hearing, and denied petitioners 29.15 motion on
March 18, 1996. Petitioner appealed the denial of relief, and
the case was consolidated with the direct appeal of the
conviction and sentence.
On April 29, 1997, the Missouri Supreme Court affirmed
petitioners convictions, all of his sentences except the death
sentence, and the denial of postconviction relief. State v.
Taylor, 944 S.W.2d 925 (Mo. 1997). The Missouri Supreme
Court held, however, that improper final argument by the
prosecutor required a new penalty phase. Id. at 938.
On remand, a new penalty phase was conducted. The

second jury recommended a sentence of death, and the
trial court sentenced Mr. Taylor to death on April 22,
1999. Mr. Taylor appealed from the sentence to the
Missouri Supreme Court, which affirmed petitioners
death sentence on April 4, 2000. State v. Taylor, 18
S.W.3d 366 (Mo. 2000). Petitioner filed a petition for writ
of certiorari to the United States Supreme Court, which
was denied on October 2, 2000. Taylor v. Missouri, 531
U.S. 901 (2000).
While the petition for writ of certiorari was pending,
petitioner filed another Rule 29.15 motion, which was
denied after an evidentiary hearing. Petitioner then
appealed the denial of the 29.15 motion, and the
Missouri Supreme Court affirmed the trial court on
January 27, 2004. Taylor v. State, 126 S.W.3d 755 (Mo.
2004).
(Doc. No. 54, pp. 2-3).
Petitioner filed a petition for writ of habeas corpus on March 5, 2005. Doc.
3
4a
No. 24. On January 8, 2007, this Court denied the petition. Doc. No. 54. This
Court denied petitioner a certificate of appealability. See Order, Doc. No. 73.
The Eighth Circuit granted a certificate of appealability as to petitioners Batson,
claim, and then affirmed this Courts judgment. See Taylor v. Roper, 577 F.3d
848 (8th Cir. 2009). The Supreme Court denied discretionary review. Taylor v.
Roper, 130 S.Ct. 3464 (2010). On September 7, 2010, petitioner filed a motion to
recall the mandate. See Doc. No. 84, Ex. 1. On May 27, 2014, the Missouri Supreme
Court overruled the motion to recall the mandate. See Doc. No. 84, Ex. 2. Petitioner filed
his Supplemental Petition with this Court on June 26, 2014. Doc. No. 84.
II.
Second or Successive Application

28 U.S.C. 2244(b) provides that a district court shall dismiss a claim presented in
a second or successive habeas corpus action under section 2254 that was either (1)
presented in a prior application; or (2) not presented in a prior application unless (a) the
claim relies on a new rule of constitutional law made retroactive to cases on collateral
review by the Supreme Court, or (b) the factual predicate for the claim could not have
been discovery previously through the exercise of due diligence, and the facts underlying
the claim would be sufficient to establish that no reasonable factfinder would have found
the applicant guilty of the underlying offense.
Additionally, before a second or
successive application is filed in the district court, the applicant is required to file a motion
before the Eighth Circuit for an order authorizing the district court to consider the
application. 28 U.S.C. 2244(b)(3)(A).
Petitioner argues that this is not a second or successive application under
Section 2244(b), and can be filed directly with this Court instead of first seeking the
approval of the Eighth Circuit. Petitioner argues that he is not challenging his conviction
and sentence with this petition; instead, he is challenging the Missouri Supreme Courts
recent decision denying petitioners motion to recall the mandate.
4
5a
The respondent argues that in the motion to recall the mandate, Taylor contended
that his sixth amendment rights were violated because he did not receive jury sentencing,
citing Ring v. Arizona, 536 U.S. 584 (2002) and State v. Whitfield, 107 S.W.3d 253 (Mo.
banc 2003). Doc. No. 84, Ex. 1, p. 3. As noted by defendant, this claim is very similar to
Penalty Phase Claim Nine in the original petition (Doc. No. 24, p. 59), wherein petitioner
claimed that the Missouri Supreme Court erroneously denied an August 26, 2003 motion
to recall the mandate in which he raised a claim under Ring and Whitfield. In the original
petition, however, petitioner asserted that his equal protection rights were violated by the
state court (Doc. No. 24, pp. 59-60), whereas in the present petition he contends that his
due process rights were violated by the state court (Doc. No. 84, p. 6). Respondent
argues that the Court should find either (1) that petitioners claim is successive under Rule
28 U.S.C. 2244(b)(1) as the underlying legal theory has already been resolved against
petitioner by this Court, or (2) that if the theory is actually new, the claim should be
rejected under 28 U.S.C. 2244(b)(2) as an issue that petitioner should have litigated in
the original litigation.
Petitioner replies that the Supreme Court found in Magwood v. Patterson, 561 U.S.
320 (2010), that where a claim arises out of events that occurred after the filing of the
petition, a pleading raising that claim is not second or successive under 28 U.S.C. 2244.
The Court, however, believes that plaintiff is reading the holding of Magwood too broadly.
In Magwood, the petitioner had filed a second Section 2254 petition challenging a second
judgment imposing the death penalty after a prior habeas application in which the District
Court had vacated Magwoods death sentence and conditionally granted a writ of habeas
corpus. See 561 U.S. at 326. The Supreme Court found that 28 U.S.C. 2244(b) only
applied to second or successive applications challenging the same state-court judgment.
561 U.S. at 331-32. Here, the judgment challenged by petitioner is not a new judgment
imposing the death penalty that occurred after this Courts ruling on the original Section
5
6a
2254 petition; instead, the judgment challenged by petitioner is the same death sentence
this Court considered in its 2007 Order. Although petitioner attempts to frame the issue as
a challenge to the Missouri Supreme Courts May 27, 2014 order denying the motion to
recall the mandate, that order is not a new judgment. Given that the due process
challenge raised by petitioner in the motion to recall the mandate and the present
supplemental petition could have been raised in petitioners original Section 2254
petition, the Court finds that petitioner should have sought permission from the Eighth
Circuit prior to filing such a supplemental petition. Consequently, the Court DISMISSES
this action pursuant to 28 U.S.C. 2244(b).
III.
Review of the Merits of Petitioners Claim

In the alternative, even if the Court found that this petition was not second or
successive and reached the merits of petitioners claim, the petition for writ of habeas
corpus would be denied.
Petitioner argues that under current Missouri law, a capital defendant has a right to
have a jury determine the facts which make him eligible for a sentence of death, and
where a jury has failed to find the facts necessary for a death sentence, that should
operate as an acquittal of the death penalty. See State v. Whitefield, 107 S.W.3d 253
(Mo. banc 2003); State ex rel. Baker v. Kendrick, 136 S.W.3d 491, 494 (Mo. banc 2004).
Petitioner notes that the state courts have denied petitioners motion to recall the
mandate, and argues that retroactive application of Ring is not only a right based on state
law, but is also a liberty interest protected by the Due Process Clause of the Fourteenth
Amendment. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). Petitioner argues that
even though the state of Missouri was not required to apply Ring retroactively under the
United States Constitution, once it did so the state court is not free to arbitrarily pick and
choose identically situated persons to whom its rules apply.
As noted by respondent, however, petitioners contention that he received
6
7a
disparate treatment is a false premise. The Court previously found as follows as to

penalty phase claim nine in the original petition:
Moreover, even if this Court were to consider this claim

on the merits, petitioner is not entitled to relief. Petitioner
is not in the same situation as the prisoners in State v.
Whitfield, 107 S.W.3d 252 (Mo. banc 2003); State v.
Thompson, 134 S.W.3d 32 (Mo. banc 2004); State ex rel.
Mayes v. Wiggins, 150 S.W.3d 290 (Mo. banc 2004);
State v. Buchanan, 115 S.W.3d 841 (Mo. 2003); and
State ex rel. Baker v. Kendrick, 136 S.W.3d 491 (Mo.
banc 2004). In those cases, judges had made the
findings of fact necessary to impose the death penalty.
Missouri has determined that, in such cases, petitioners
were entitled to have their death sentence commuted to
life imprisonment without parole. See id., applying Ring
v. Arizona, 536 U.S. 584 (2002). Petitioners case,
however, is in a significantly different posture. Although
at the first penalty phase petitioner was sentenced to
death after a judge found the facts necessary to support
the sentence, the findings at petitioners first penalty
phase were reversed, and the case was remanded for a
new penalty phase. The outcome of the second penalty
phase in 1999 was a determination by the jury that the
facts necessary to support the death sentence were
present. This determination was made by the jury long
before the decisions in Ring and Whitfield. Therefore, at the
time of those decisions, petitioner (unlike the prisoners in the
other cited cases) had been sentenced to death based on the
findings of a jury, in compliance with the standards set forth in
Ring and Whitfield. Petitioner received the process he was
due, and he has demonstrated no equal protection violation.
Petitioners point is denied.
Doc. No. 54, pp. 31-32. Respondent argues that the above rationale applies with equal
force to petitioners supplemental petition. The Court agrees, and finds that petition has
not demonstrated a due process violation, given that he had been sentenced to death
based on the factual determinations made by a jury prior to the decisions in Ring and
7
8a
Whitfield. Petitioners Supplemental Petition (Doc. No. 84) is DENIED.

No certificate of appealability will be issued.
In order for a certificate of
appealability to be issued, the petitioner must demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the issues [in a different manner]; or
that the questions are adequate to deserve encouragement to proceed further. Randolf
v. Kemna, 276 F.3d 401, 403 n.1 (8th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.1 (1983))(alteration in original). Although this may be referred to as a modest
standard, id. (citing Charles v. Hickman, 228 F.3d 981, 982 n.1 (9th Cir. 2000)), petitioner
has failed to meet this burden.
Therefore, for all the foregoing reasons, petitioners Supplemental Petition (Doc.
No. 84) is DENIED.
IT IS SO ORDERED.
Date: September 12, 2014

Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.

Fernando J. Gaitan, Jr.
United States District Judge
8
9a
Supreme Court of Missouri,

En Banc.
STATE of Missouri, Respondent,
v.
Leon V. TAYLOR, Appellant.
No. 78086.
April 29, 1997.
As Modified on Denial of Rehearing
May 27, 1997.
*930 Melinda K. Pendergraph, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Becky Owenson Kilpatrick, Asst. Attorney
General, Jefferson City, for respondent.
BENTON, Judge.
A jury convicted Leon Taylor of first degree murder, first degree robbery, first degree
assault, and three counts of armed criminal action. After the jury deadlocked on
punishment for first degree murder, the judge sentenced Taylor to death on the murder
charge and life imprisonment plus 315 years for the other charges. The post-conviction
court overruled Taylor's Rule 29.15 motion. This Court has exclusive appellate
jurisdiction. Mo. Const. art. V., sec. 3. This Court affirms the convictions, affirms the
sentences except for the sentence of death which is reversed, and remands for a new
penalty phase proceeding. The appeal of the judgment on the Rule 29.15 motion is
affirmed in part and dismissed as moot in part.
I.
[1] This Court reviews the facts in the light most favorable to the verdict. State v.
Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct.
118, 130 L.Ed.2d 64 (1994). On April 14, 1994, Taylor, his half-brother Willie Owens,
and his half-sister Tina Owens were driving in Tina's car, discussing various robbery
possibilities. Taylor suggested a gas station in Independence where only one person
would be working. The trio went to the station and purchased some gasoline. Taylor
asked whether they were going to rob it. Tina Owens said no because a little girl was
inside. Sarah Yates, an eight-year-old, was keeping company with Robert Newton, her
stepfather and the gas station manager.
The three left the station, only to return a few moments later after the oil light came on.
Willie Owens went into the station and asked for some oil. Taylor next entered the store
10a
and stated they needed a different weight of oil. Taylor then drew a pistol and stated
that he would shoot Newton unless he gave them money. Newton complied, handing
Owens approximately $400 in a bank money bag. Owens took the money and returned
to the car.
Taylor directed Newton and the child to the station's back room. Taylor shot Newton
once in the head, killing him. Taylor then pointed the gun at the child. Taylor pulled
the trigger, but the gun jammed and did not discharge. Frustrated, Taylor locked the
child in the back room and returned to the car. Taylor told Willie and Tina Owens that he
had shot the man and that he had to go back inside to get the little girl. However,
because the Owenses wanted to leave, they then drove away.
II. Pretrial Issues
A. Continuance
Taylor claims that the circuit court abused its discretion and violated the United States
and Missouri constitutions by denying a one-day continuance. Taylor argues that the
continuance was needed to remedy the prosecutor's bad faith acts: (1) late
endorsement of a witness; (2) interference with deposing the late endorsed witness;
and (3) failure to inform the defense of a deal with Willie Owens.
[2][3] The decision to grant or deny a continuance is within the sound discretion of the
trial court. State v. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991), cert. denied, 502
U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992). A very strong showing of abuse
and prejudice must be shown. Id. citing State v. Nave, 694 S.W.2d 729, 735 (Mo. banc
1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 901 (1986).
Inadequate preparation does not justify a continuance where counsel had ample
opportunity to prepare. Id. citing State v. Crahan, 747 S.W.2d 721, 722 (Mo.App.1988).
[4] Regarding the first two issues, defense counsel Zembles traveled to Kansas *931
City four days before trial to depose the witness, was unable to do so, and lost a day of
preparation. While this incident may have inconvenienced counsel, Taylor never
demonstrated what specific matters defense counsel did not complete due to the trip.
[5] Regarding the State's dealings with Willie Owens, Taylor concedes that the State
cannot be blamed for reaching agreement on the day of trial. Although defense counsel
Zembles missed part of individual voir dire in order to depose Owens, Taylor did not
demonstrate how the jury selection or trial was compromised by Zembles' temporary
absence. Moreover, Taylor had two attorneys, Zembles for the guilt phase and
McKerrow for the penalty phase. McKerrow was present throughout the voir dire.
Since individual voir dire here was primarily designed to question potential jurors about
their attitude towards punishment and the death penalty, McKerrow's presence
sufficiently protected Taylor's interests.
On this record, the trial court did not abuse its discretion nor violate Taylor's
constitutional rights in denying a continuance.
11a
B. Discovery Issues
1. Sarah Yates' Counseling Records
The circuit court refused Taylor's request for Sarah Yates' counseling records. Taylor
claims this violated his rights to compulsory process, confrontation, due process, and
freedom from cruel and unusual punishment. The compulsory process claim falls under
the due process clause, and Taylor cites no applicable cruel and unusual punishment
authority, so only the confrontation and due process claims need be addressed. State
v. Parker, 886 S.W.2d 908, 916 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct.
1827, 131 L.Ed.2d 748 (1995). See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107
S.Ct. 989, 1000-01, 94 L.Ed.2d 40 (1987).
[6][7] The accused has the right "to be confronted with the witnesses against him."
U.S. Const. amend. VI; See Mo. Const. art. I, sec. 18(a); State v. Hester, 801 S.W.2d
695, 697 (Mo. banc 1991). The right to confront is satisfied if defense counsel has
wide latitude at trial to cross- examine witnesses; it does not include a right to pretrial
disclosure of any and all information that might assist cross-examination. Ritchie, 480
U.S. at 53, 107 S.Ct. at 999. Taylor seeks pretrial disclosure of potentially helpful
information; he does not assert that the trial court limited cross- examination. Thus,
there was no confrontation clause violation.
[8] Taylor's due process claim invokes Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963). The State must disclose evidence in its possession that is
favorable to the accused and material to guilt or punishment. Brady, 373 U.S. at 87, 83
S.Ct. at 1197. The accused, however, must make "some plausible showing [of] how
the information would have been material and favorable." Ritchie, 480 U.S. at 58 n. 15,
107 S.Ct. at 1002, n. 15, quoting United States v. Valenzuela-Bernal, 458 U.S. 858,
867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).
[9] After reviewing the counseling records in camera, the trial court found "absolutely
nothing in those records that would be relevant to whether or not she's been coached."
The court also stated that the records did not contain any pre-deposition statements
except "very vague remembrances of blood coming out of my daddy's head and things
like that. None of the circumstances of how it happened, okay?" Since the records
were not material and favorable, the trial court's ruling was proper.
[10] Taylor also claims the circuit court had a sua sponte duty to disclose the records
for use in the penalty phase. The counseling records were briefly mentioned in the
penalty phase to show Yates' psychological harm. However, since most of the
testimony was non-expert and factual, the trial court had no sua sponte duty to order
disclosure of the counseling records at that point.
2. Arrest Records of State Witnesses
Taylor claims the circuit court violated his confrontation and equal protection rights by
12a
not ordering disclosure of Willie and Tina Owens' arrest records.

*932 [11] In reviewing criminal discovery claims, this Court will overturn the trial court
only if it appears that the trial court abused its discretion to the extent that fundamental
unfairness to the defendant resulted. State v. Mease, 842 S.W.2d 98, 108 (Mo. banc
1992), citing State v. Royal, 610 S.W.2d 946, 951 (Mo. banc 1981).
[12] Rule 25.03(A)(7) requires disclosure of the prior convictions of the State's intended
witnesses. Rule 25.04(A) permits disclosure of additional material if the defense
specifies the material or information sought and the court finds the request is
reasonable and the information sought is relevant and material to the defendant's case.
Arrests that do not result in convictions are relevant and material only to show a specific
interest, motive to testify favorably for the state, or expectation of leniency. See State
v. Wise, 879 S.W.2d 494, 510 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct.
757, 130 L.Ed.2d 656 (1995).
[13] Taylor asserts that the arrest records were relevant and material to show selfinterest or motive. In fact, Taylor fully cross-examined and impeached Willie and Tina
Owens regarding their conversations with the State and Willie's leniency agreement.
Because Taylor did not demonstrate that additional material was relevant and material,
the trial court did not abuse its discretion by denying disclosure of the arrest records.
Taylor also asserts, for the first time on appeal, that the court allowed the State to use
witnesses' arrest records and denied the defense an opportunity to do the same. In
fact, the record simply has no evidence of the State's use of the arrest records. Point
denied.
III. Juror Issues
A. Juror Misconduct
Taylor asserts that the circuit court plainly erred in failing to quash the venire panel sua
sponte after learning that the victim's relatives conversed with four females that Taylor
alleged were on the venire.
[14][15] The trial court is vested with broad discretion in determining if a jury panel
should be dismissed, and, absent a clear abuse, the trial court's ruling should not be
disturbed. State v. Smulls, 935 S.W.2d 9, 19 (Mo. banc 1996), citing State v. Evans,
802 S.W.2d 507, 514 (Mo. banc 1991). In addition, because the issue of juror
misconduct was not presented in the motion for a new trial, Taylor must demonstrate
manifest injustice resulting from the alleged error. Rule 30.20.
[16] On the third day of voir dire, veniremember Cynthia Taylor spoke to the court and
counsel in chambers regarding a conversation she had overheard. According to Ms.
Taylor, two of the victim's relatives approached four females sitting on a bench outside
the courtroom and initiated the following dialogue:
A ... [T]hey said is this the Leroy Taylor--I think the first name is Leroy, Leon.
13a
Q Leon Taylor?
A Leon Taylor case and one of the ladies on the bench said yes and what did she say
next? Then this woman asked us, well, have you seen this case on the news? And
you know about it? And the other lady said no and I said well, I don't think we are
supposed to really know anything about it and I didn't say anything and this lady's
friend came up from behind me and I said oh, are you in the other room waiting to be
questioned? And that's when the first lady said no, he murdered my brother-in-law.
Q Okay. Is that all she said?
A That's what she said and then I said I don't think we are supposed to be talking to
you and they both left.
Q Is that the only words that were said?
A Yeah.
The court asked Ms. Taylor whether the four females were members of the venire.
After viewing the panel in court later that morning, Ms. Taylor stated unequivocally, "No,
I don't see those ladies. There were 4 of the ladies and me. I don't see the other 4."
After noting that no other veniremembers were *933 involved in the conversation, the
trial court struck Ms. Taylor for cause.
Since there is no proof of juror misconduct, the trial court did not abuse its discretion
nor create manifest injustice in failing to quash the venire panel sua sponte.
B. Voir Dire
[17] Taylor argues that the trial court unduly limited individual death qualification voir
dire. Control of voir dire is within the discretion of the trial court; only abuse of
discretion and likely injury justify reversal. State v. Bannister, 680 S.W.2d 141, 145 (Mo.
banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985); State
v. Gray, 887 S.W.2d 369, 382 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct.
1414, 131 L.Ed.2d 299 (1995). Review of the record reveals no abuse of discretion in
limiting individual death qualification voir dire, which lasted almost 22 hours. Point
denied.
C. Batson Challenge
Taylor asserts the trial court erred by: (1) not striking veniremembers Chubick and
Sessler for cause; (2) striking veniremember Parris for cause; (3) applying different
standards to evaluate the State's and Taylor's strikes for cause; and (4) allowing the
prosecutor to peremptorily strike prospective jurors on the basis of race.
1.
[18] This Court need not review the trial court's decision not to remove veniremember
Chubick or Sessler because neither served on the jury. "The qualifications of a juror on
the panel from which peremptory challenges by the defense are made shall not
constitute a ground for ... reversal of a conviction or sentence unless such juror served
upon the jury at defendant's trial and participated in the verdict rendered against the
defendant." 494.480.4 RSMo 1994. [FN1]
14a
FN1. All references are to RSMo 1994 unless otherwise indicated.
2.
[19][20] The circuit court struck veniremember Parris for cause on the State's motion.
When a questionable venireperson is excused, for reasons unrelated to the person's
scruples against the death penalty, appellant cannot show prejudice. State v.
Reuscher, 827 S.W.2d 710, 714 (Mo. banc), cert. denied, 514 U.S. 1119, 115 S.Ct.
1982, 131 L.Ed.2d 869 (1995). The trial court removed Parris because "her general
demeanor led me to believe that it was somewhat questionable that she could be fair
and impartial in view of what she said." This decision is not an abuse of discretion.
See State v. Wise, 879 S.W.2d at 512.
3.
Taylor claims that in assessing strikes for cause, the trial court used conflicting
standards based on whether the State or defense requested the strike. Because this
issue is raised for the first time on appeal, we review only for plain error. Rule 30.20;
State v. Isa, 850 S.W.2d at 884. Review of the record reveals that the trial court properly
considered the potential jurors' responses and demeanor to determine whether they
could be impartial. Point denied.
4.
[21] Taylor asserts that the prosecutor violated his equal protection rights by using
peremptory challenges to exclude jurors on the basis of race. Batson v. Kentucky, 476
U.S. 79, 90, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). To establish a claim under
Batson, the defendant must object to the prosecutor's use of peremptory challenges as
violating Batson and identify the cognizable racial group to which the stricken
veniremember belongs. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc), cert. denied,
506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). The State then must provide
race-neutral explanations for the peremptory challenges. Id. If the prosecutor
articulates an acceptable reason, the defendant must prove that the State's proffered
reasons were merely pretextual and that the strikes were in fact racially motivated. Id.
An appellate court will not overturn such a finding unless clearly erroneous. Parker, 836
S.W.2d at 939, n. 7, *934 citing Hernandez v. New York, 500 U.S. 352, 368-69, 111
S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991), and State v. Antwine, 743 S.W.2d 51, 66
(Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).
After the prosecutor provided race-neutral explanations--age, demeanor, education,
and death penalty views--for striking veniremembers Gordon, Johnson, and Loveland
(all African-Americans), defense counsel did not allege that the reasons were
pretextual.
15a
[22] As to Loveland, defense counsel first objected three days later, after the venire
was dismissed. Concluding that the State's explanations were race-neutral, the court
found no prima facie showing of Batson discrimination. Normally, a defendant must
challenge a State's explanation prior to discharge of the venire so that the trial court can
correct the alleged error without having to call a new venire and select a new jury.
Parker, 836 S.W.2d at 936-37. Nevertheless, an examination of the prosecutor's
reasons for striking Loveland indicates that the trial court decision was not clearly
erroneous.
[23] Since Taylor challenges the State's explanations regarding Gordon and Johnson
for the first time on appeal, he has abandoned these claims. A defendant's failure to
challenge the State's race-neutral explanation in any way waives any future complaint
that the State's reasons were racially motivated, and leaves nothing for this Court to
review. See State v. Jackson, 925 S.W.2d 856, 864 (Mo.App.1996); State v. Fritz, 913
S.W.2d 941, 946 (Mo.App.1996).
[24] Taylor also claims that the trial court erred in denying defendant's motion to
videotape voir dire to record the demeanor of the veniremembers for appellate review.
There is no requirement that the trial court videotape voir dire, and this Court declines to
impose such a requirement.
IV. Guilt Phase
A. Right to Confront Witnesses and Present a Defense
1. Testimony of Dr. Berkland
Dr. Mitruka performed the autopsy of Robert Newland and incorrectly concluded that
the entrance wound was at the back of the victim's neck. Dr. Mitruka was later
dismissed from his position as Medical Examiner for Jackson County. Dr. Berkland,
acting Medical Examiner for Jackson County, testified at trial. After independently
reviewing the autopsy photographs, Dr. Berkland concluded that the bullet entered
through the victim's forehead and exited through the back of the neck. He based his
opinion on the fact that the entrance wound was completely circular, while the exit
wound had a small linear tear. The parties do not dispute this identification of the
wounds.
[25] Taylor asserts that the trial court improperly limited cross- examination of Dr.
Berkland as to Dr. Mitruka's credentials, his dismissal, and his erroneous conclusion
about the wounds. The accused in a criminal prosecution has the right to confront the
witnesses against him at trial. U.S. Const., amend. VI; Mo. Const. Art. I, sec. 18(a).
This includes the opportunity to cross-examine effectively the witnesses against him at
trial. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40
(1987).
On cross-examination, the trial court allowed defense counsel to explore Dr. Mitruka's
erroneous autopsy conclusion and his dismissal. The trial court limited additional
16a
inquiry because the issues were collateral and undisputed. Furthermore, Dr. Mitruka's
credentials were not relevant to Dr. Berkland's testimony since Dr. Berkland did not rely
solely on the autopsy report and in fact reached conclusions contrary to Dr. Mitruka's.
[26] Taylor further claims that the trial court limited his ability to present a defense by
prohibiting the introduction of Dr. Mitruka's autopsy report. In fact, the autopsy report
was never actually offered into evidence. Because admissibility of the autopsy report
was not expressly decided or ruled upon by the trial court, this Court will not consider
the issue on appeal. See State v. Blakeburn, 859 S.W.2d 170, 177 (Mo.App.1993).
*935 2. Testimony of Willie and Tina Owens
Taylor requests a new trial, asserting that the trial court violated his confrontation rights
by limiting cross-examination of Willie and Tina Owens.
[27][28] The scope of cross-examination and the determination of matters of witness
credibility are largely within the discretion of the trial court. State v. Dunn, 817 S.W.2d
241, 245 (Mo. banc 1991), cert. denied, 503 U.S. 992, 112 S.Ct. 1689, 118 L.Ed.2d 403
(1992). "Among the reasons for permitting trial judges wide latitude for the purpose of
imposing reasonable limits on cross-examination are concerns about prejudice,
confusion of the issues, and interrogation that is only marginally relevant." Id. The trial
court does not abuse its discretion when excluding offers of impeachment on immaterial
or collateral matters. State v. Taylor, 486 S.W.2d 239, 244 (Mo.1972), citing State v.
Miles, 412 S.W.2d 473, 476 (Mo.1967).
As to Willie Owens, Taylor argues that the trial court prevented questions necessary to
establish bias, motive, and interest. In fact, the trial court allowed questions regarding
Willie's agreement with the State and desire to obtain leniency for Tina Owens, and
imposed only minimal limits on cross- examination.
Taylor also contends that the trial court improperly limited cross-examination of Tina
Owens on a key issue. Defense counsel questioned Tina about the weapons and
ammunition used in the crimes, highlighting prior inconsistent statements. The circuit
court sustained objections regarding Tina's complete gun arsenal because it was a
collateral matter--the ownership of other guns was not a key issue due to Taylor's
confession and other evidence that he alone shot the victim with a pistol. Point denied.
B. Closing Argument
Taylor claims that the prosecutor's rebuttal argument impermissibly alluded to Taylor's
decision not to testify. The prosecutor responded to a defense argument that the gun
could have gone off accidentally by stating:
Ms. Zembles has been up here arguing for her client and again, at no time has there
been any explanation made to you as to how that man could have accidentally been
shot.
The trial court overruled defense counsel's objection.
17a
[29][30][31] A prosecutor may not comment adversely on the defendant's decision not
to testify. State v. Richardson, 923 S.W.2d 301, 314 (Mo. banc), cert. denied, 519 U.S.
972, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996). While a direct reference generally
requires reversal, an indirect reference is improper "only if the prosecutor demonstrates
a calculated intent to magnify the defendant's decision not to testify so as to call it to the
jury's attention." Richardson, 923 S.W.2d at 314. Description of the State's evidence
as uncontradicted or undisputed is not a reference to the defendant's failure to testify.
Id.; State v. Ramsey, 864 S.W.2d 320, 330 (Mo. banc 1993), cert. denied, 511 U.S.
1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).
[32] Here the prosecutor commented on the lack of evidence supporting the defense
theory, not Taylor's silence. Since Taylor was not the only person who could explain an
accidental firing, any reference to his failure to testify was only indirect.
Taylor also attacks the State's rebuttal argument as personal vouching:
Tina testified and didn't have to. She can beat this case she believes, why come in
and testify, why even put her on the stand to say she was even there. Why have
anything to do with this case at all? And Willie's not getting that sweet of a deal.
Willie committed robbery and he's going to the penitentiary for it and what shaved off
his time was to help us convict the man who that night committed Murder in the First
Degree and the man who that night was so vicious and so cold and so deliberate that
he was going to take the life of a little 8 year old girl. And that's a decision I will make
and I will do it again when it comes to selecting witnesses such as Willie Owens for a
case like this. When we want someone who that night would commit acts the way
they were committed.
*936 Since Taylor raises this argument for the first time on appeal, this Court reviews
only for plain error. Rule 30.20; Isa, 850 S.W.2d at 884.
[33][34][35] A prosecutor may state personal opinions on matters, including guilt, where
they are fairly based on the evidence. State v. Tokar, 918 S.W.2d 753, 769 (Mo. banc),
cert. denied, 519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). A prosecutor may
comment on the evidence and the credibility of the witnesses. State v. Weaver, 912
S.W.2d 499, 513 (Mo. banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136
L.Ed.2d 98 (1996). Most of the quoted argument discussed the State's dealings with
Tina and Willie Owens, and did not urge conviction based on the prosecutor's
assessment of the evidence. While the prosecutor should not have emphasized his
personal reasons for selecting Willie as a witness, the statement does not constitute
manifest injustice. Cf. State v. Kreutzer, 928 S.W.2d 854, 876 (Mo. banc 1996), cert.
denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997).
C. Instructions
Voluntary Intoxication Instruction
[36] Taylor contends that the trial court erred by submitting Instruction 5--identical to
MAI-CR3d 310.50--because there was insufficient supporting evidence and it
18a
unconstitutionally shifted the State's burden of proof. Instruction 5 stated:

The state must prove every element of the crime beyond a reasonable doubt.
However, in determining the defendant's guilt or innocence, you are instructed that an
intoxicated condition from alcohol will not relieve a person of responsibility for his
conduct.
MAI-CR3d 310.50. (effective 10-1-94). An appellate court will reverse only if there is
error in submitting an instruction and prejudice to the defendant. Rule 28.02(f).
The Notes on Use in effect at the time of Taylor's trial stated the instruction "may be
given when relevant evidence of voluntary intoxication has been admitted." MAI-CR3d
310.50, Notes on Use 3. (10-1-94); see sec. 562.076.3. In a videotaped confession,
Taylor stated that the three had been "ridin' around, drinking a little bit" when they
decided to rob someone. Later, the following discussion occurred:
[Detective] OK. Then you told me earlier that this was an accident, that you did not
intend to shoot the gas station attendant. Do you feel like when you say its an
accident that you're not familiar with handguns? Have you any training with
handguns?
[Taylor] No.
[Detective] And, uh, you feel like your finger was on the trigger and the hammer was
back on the gun or how do you feel like this gun discharged accidentally?
[Taylor] I don't know.
[Detective] Just that you were nervous and drinking?
[Taylor] Yeah.
Because evidence of intoxication had been submitted as a potential explanation for the
shooting, the trial court submitted this instruction so that the evidence would not be
improperly used to negate Taylor's mental intent. Sec. 562.076.3.
[37] Taylor also claims that the revised version of MAI-CR3d 310.50 fails to remedy the
constitutional flaw found in the earlier version of MAI-CR3d 310.50. State v. Erwin, 848
S.W.2d 476, 483-84 (Mo. banc), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d
56 (1993). This Court held that the prior pattern instruction (which read "You are
instructed that an intoxicated condition from alcohol will not relieve a person of
responsibility for his conduct") implicitly relieved the State of its burden of proof of intent.
Erwin, 848 S.W.2d at 483-84. Since Erwin, MAI-CR3d 310.50 was revised to include
the opening sentence: "The state must prove every element of the crime beyond a
reasonable doubt." MAI-CR3d 310.50 (effective 10-1- 94). The current instruction
"explicitly directs the jury's attention to the state's burden to prove every element of the
crime." State v. Bell, 906 S.W.2d 737, 740 (Mo.App.1995); See State v. Armstrong,
930 S.W.2d 449, 451- 52 (Mo.App.1996). There is no constitutional error in Instruction
5.
*937 Reasonable Doubt Instruction
The claim that Instruction 4--patterned after MAI-CR3d 302.04--violates Taylor's
constitutional rights by diluting the definition of "reasonable doubt" is once again
rejected. See Kreutzer, 928 S.W.2d at 872.
19a
V. Penalty Phase
A. Closing Argument
Taylor alleges that the trial court erred by overruling his objection to the prosecutor's
argument that the jury impose death based on emotion. In this case the jury
deadlocked on punishment for first degree murder, and the trial court sentenced Taylor
to death.
Near the end of closing argument, the prosecutor initiated the following:
Mr. Miller told you in the first stage of this trial that at that point this case was to be
decided on the facts, the evidence and the law. Cold, calculated. You were to be as
cold and calculated as this man was. And you did your job. Now it is the time you
can put your emotion into it. Now it is time that you can show your outrage. Now it is
time to get mad. You can get mad at this man.
MS. MCKERROW: Objection, Your Honor.
THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH:
MS. MCKERROW: Judge, I think that's improper argument. I think inviting the jury to
base their decision on anger and emotion is telling them not to follow the law.
THE COURT: Overruled.
(emphasis added). The State immediately repeated the argument:
You can be mad at him now. Now you can go up to that room....
(emphasis added). During her argument, defense counsel addressed the prosecutor's
argument:
Mr. Hunt asks you to be angry. I ask you that if you are angry and I am assuming that
you are, that when you go up to deliberate, you take whatever time you need to let
that anger pass because experience shows that decisions as important as this made
in anger and the heat of passion may well be decisions regretted in the future. Take
your time, let your anger pass and decide the punishment based on the instructions,
the evidence and the law.
On rebuttal, the prosecutor again encouraged the jury to rely on emotion:
Think about everything in this case, take your time and make your decision based
upon the evidence, the law, the facts and your emotions.
(emphasis added).
[38] As the State concedes, it is improper to urge the jury to impose the death penalty
based on emotion, not reason. State v. Storey, 901 S.W.2d 886, 902 (Mo. banc 1995).
"It is of vital importance to the defendant and to the community that any decision to
impose the death sentence be, and appear to be, based on reason rather than caprice
or emotion." Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d
393 (1977), followed in Lankford v. Idaho, 500 U.S. 110, 124-26, 111 S.Ct. 1723, 173132, 114 L.Ed.2d 173 (1991); Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733,
2747, 77 L.Ed.2d 235 (1983); and California v. Brown, 475 U.S. 1301, 1304, 106 S.Ct.
1367, 1368, 89 L.Ed.2d 702 (1986). [FN2] The General Assembly incorporated this
principle into Missouri's capital sentencing procedure: With regard to death sentences,
this Court shall determine whether the sentence was imposed under the influence of
20a
"passion, prejudice, or any other arbitrary factor." Sec. 565.035.3(1).
FN2. In response to the dissent, the reference in Gregg v. Georgia, 428 U.S.
153, 183, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976), to "society's moral
outrage" is directed to the legislature's implementation of that outrage, and in no
way supports the prosecutor's appeal to--and the trial court's approval of-emotion, outrage, and anger. Collier v. State, 101 Nev. 473, 705 P.2d 1126,
1129-30 (1985), cert. denied, 486 U.S. 1036, 108 S.Ct. 2025, 100 L.Ed.2d 611
(1988).
[39] The State argues that since the jury was not the final sentencer, there was no
prejudice. However, this Court will review Taylor's claim because he asserts that, but
for the errors, the jury may have assessed *938 punishment at life imprisonment without
the possibility of parole. Richardson, 923 S.W.2d at 319.
Urging the jury to "get mad" and decide the case based on "emotion" was
impermissible. Moreover, because the court overruled the objection to the criticized
language, the appeal to emotion had the stamp of approval of the trial court. See State
v. Barton, 936 S.W.2d 781, 788 (Mo. banc 1996); State v. Williams, 659 S.W.2d 778,
782 (Mo. banc 1983), citing State v. Jones, 615 S.W.2d 416, 420 (Mo.1981).
Based on this record, this Court finds a reasonable probability that the jury would have
reached a different result without the improper argument. See State v. Barton, 936
S.W.2d 781, 788 (Mo. banc 1996); State v. Parker, 856 S.W.2d 331, 333 (Mo. banc
1993). This Court finds error and prejudice warranting reversal of the death penalty.
B. Other Penalty Phase Issues
Taylor raises several other penalty phase issues. Because he is entitled to a new trial
on the issue of punishment, only one issue likely to recur on retrial need be addressed.
Taylor seeks reversal based on the victim impact part of the PSI report. In the PSI,
many of the victim's relatives expressed their belief that Taylor should be sentenced to
death. The victim's brother stated, "I feel he [Taylor] should get the death penalty." and
further elaborated that:
I feel it would be unjust for Leon Taylor to get anything less than the death penalty.
He should not have the right to be able to draw breath after he stopped someone else
from breathing! He should not be allowed to see his family; we will never see Robert
again.
Sarah Yates, the victim's step-daughter and witness to the murder, communicated to
the PSI officer that "[she] feels very strongly that Leon Taylor should be executed for
killing her father and trying to kill her." The victim's uncle stated, "I hate to see him get
the death penalty, but you shouldn't take anything you can't give." Finally, the victim's
wife stated, "Taylor should be sentenced to death for what he has done, so he will never
21a
have the chance to do this to someone else."

[40][41][42] The State concedes that admission of a victim's family members'
characterizations and opinions about the appropriate sentence are inadmissible under
Payne v. Tennessee, Sec.217.762.4, 565.030.4, and 595.209.1(4). Payne v.
Tennessee, 501 U.S. 808, 830 n. 2, 833, 111 S.Ct. 2597, 2611 n. 2, 115 L.Ed.2d 720
(O'Conner, J., concurring) and 835 n. 1, 111 S.Ct. at 2614 n. 1 (Souter, J., concurring),
501 U.S. 808, 824-26, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991). Here a judge
determined Taylor's sentence. This Court presumes that inadmissible evidence is
neither prejudicial nor fundamentally unfair because judges are presumed not to
consider improper evidence during sentencing. Richardson, 923 S.W.2d at 319; State
v. Roll, 942 S.W.2d 370, 378-79 (Mo. banc 1997). Although these requests for the
death penalty were error, Taylor has failed to show prejudice that constitutes
fundamental unfairness.
VI. Post-Conviction Proceedings on Guilt Phase Issues
[43][44] This Court reviews the denial of post-conviction relief to determine whether the
motion court's findings of fact and conclusions of law are "clearly erroneous." Rule
29.15(j); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc), cert. denied, 519 U.S. 933,
117 S.Ct. 307, 136 L.Ed.2d 224 (1996). Findings and conclusions are clearly
erroneous if, after a review of the entire record, the appellate court is left with the
definite impression that a mistake has been made. State v. Shurn, 866 S.W.2d 447,
468-69 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64
(1994).
A. Ineffective Assistance of Counsel
[45] Taylor alleges two grounds of ineffective assistance of counsel during the guilt
phase: (1) failure to object, investigate, and make an adequate offer of proof regarding
Dr. Mitruka's incompetence and Dr. Berkland's testimony; and (2) failure to submit a
jury questionnaire. In order to prevail, Taylor must prove by a preponderance of the
evidence that counsel failed to exercise the *939 customary skill and diligence that a
reasonably competent attorney would exercise in similar circumstances and he was
prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984).
1. Testimony of Dr. Berkland
Taylor asserts that trial counsel failed to investigate adequately Dr. Mitruka's
competence, object to Dr. Berkland's hearsay testimony, and make an adequate offer of
proof regarding the relevancy of the autopsy report and the facts demonstrating Dr.
Mitruka's incompetence.
[46] Taylor cites no facts supporting his argument that counsel failed to adequately
investigate Dr. Mitruka's competence, and none were presented at the motion hearing.
22a
The failure to pursue a claim raised in a point relied on is an abandonment of the claim.
Rule 30.06(e); State v. Silvey, 894 S.W.2d 662, 671 (Mo. banc 1995); State v. Light,
835 S.W.2d 933, 936 (Mo.App.1992).
[47] Taylor next asserts that trial counsel was ineffective for failing to object to Dr.
Berkland's testimony as hearsay based solely on Dr. Mitruka's autopsy report. In fact,
Dr. Berkland's trial testimony did not recite Dr. Mitruka's conclusions. As stated in
section IV.A.2, Dr. Berkland disagreed with many conclusions in the autopsy report and
made his own conclusions from a review of the autopsy photographs and the State's
evidence. Consequently, this case is distinguishable from State v. Johnson, 504
S.W.2d 334 (Mo.App.1973). Moreover, Dr. Berkland, as an expert, could rely on the
report of another without admitting it as long as that evidence is of a type reasonably
relied upon by other experts in that field. State v. Hendrix, 883 S.W.2d 935, 940
(Mo.App.1994); State v. Rowe, 838 S.W.2d 103, 109-10 (Mo.App.1992). Since Dr.
Berkland's testimony was not hearsay, Taylor has failed to show incompetence of
counsel and prejudice. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Taylor also asserts that counsel did not make a sufficient offer of proof on Dr. Mitruka's
incompetence and the autopsy report's relevance. As indicated above, the trial court
correctly ruled that specifics on Dr. Mitruka's qualifications and the autopsy report were
collateral and irrelevant. Since an expanded offer of proof would not have benefited
Taylor, trial counsel did not act unreasonably or prejudice Taylor. See Sidebottom v.
State, 781 S.W.2d 791, 799 (Mo. banc 1989), cert. denied, 497 U.S. 1032, 110 S.Ct.
3295, 111 L.Ed.2d 804 (1990).
2. Jury Questionnaire
[48] The circuit court ordered defense counsel to submit a proposed jury questionnaire
by November 21, 1994. Defense counsel did not timely do so. As a result, the trial
court used a jury questionnaire from a prior death penalty case and allowed the
attorneys to ask additional questions. Review of the voir dire proceedings reveals that
counsel was given sufficient latitude to ask questions and select and disqualify potential
jurors. As the motion court correctly concluded, no prejudice resulted from use of the
court's questionnaire.
B. Disqualification of Judge
Taylor asserts that the judge erred in overruling the motion to disqualify himself from
ruling on the postconviction motion. Although Taylor's reasons for seeking
disqualification were readily apparent, he waited thirty days after filing his amended
29.15 motion--one week before the hearing date--to file a motion to recuse.
Nevertheless, Taylor asserts that the trial judge had a duty to recuse himself because
the judge was a potential witness to "disputed evidentiary facts" at the 29.15 hearing.
[49][50] Effective administration of justice prefers that the trial judge oversee the 29.15
hearing. Thomas v. State, 808 S.W.2d 364, 367 (Mo. banc 1991); State v. Wells, 804
23a
S.W.2d 746, 749 (Mo. banc 1991). Absent allegations of bias sufficient to require
disqualification from a postconviction relief proceeding and compelling evidence from
the record or elsewhere in support of those allegations, the trial judge should not be
called as a witness and disqualified from conducting that proceeding. See State v.
Wise, 879 S.W.2d 494, 523 (Mo. banc 1994), cert. denied, *940513 U.S. 1093, 115
S.Ct. 757, 130 L.Ed.2d 656 (1995). A judge should recuse where "the judge's
impartiality might reasonably be questioned ..." State v. Smulls, 935 S.W.2d 9, 26 (Mo.
banc 1996), citing Rule 2, Canon 3D. Since Taylor's claim of judicial bias is meritless,
the court properly denied the motion.
C. Rule 29.15 Time Limits
Taylor contends that the time limitations of Rule 29.15 are unconstitutional. This claim
has been repeatedly raised and rejected. State v. Weaver, 912 S.W.2d 499, 520 (Mo.
banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996); Bullard
v. State, 853 S.W.2d 921, 923 (Mo. banc), cert. denied, 510 U.S. 979, 114 S.Ct. 475,
126 L.Ed.2d 426 (1993); State v. Ervin, 835 S.W.2d 905, 929 (Mo. banc 1992), cert.
VII.
This Court affirms the convictions, affirms the sentences except for the punishment of
death which is reversed, and remands for new penalty phase proceedings consistent
with this opinion. The judgment on the Rule 29.15 motion is affirmed in part and
dismissed as moot in part.
HOLSTEIN, C.J., and PRICE, LIMBAUGH, COVINGTON and WHITE, JJ., concur.
ROBERTSON, J., dissents in separate opinion filed.
ROBERTSON, Judge, dissenting.

I concur in the majority's decision to affirm the conviction in this case. I respectfully
dissent, however, from the majority's decision to reverse the death sentence because
the prosecutor said in closing argument during the penalty phase:
Now is the time you can put your emotions into it. Now is the time that you can show
your outrage. Now is the time to get mad. You can get mad at this man.
And, Think about everything in this case, take your time and make your decision
based upon the evidence, the law, the facts and your emotions.
The majority relies on two cases to support its conclusion. In State v. Storey, 901
S.W.2d 886, 901-2 (Mo. banc 1995), this Court reversed the death sentence of William
24a
Storey because the prosecutor made four arguments that: invited the jury to consider
facts outside the record and contained the prosecutor's personal opinion about the
crime; invited the jury "to put themselves" in the victim's place; equated the jury's
function with self- defense; and suggested that the jury weigh the value of the victim's
life against the defendant's in reaching its sentencing recommendation. The Court
condemned the first three of these arguments for, among other things, inciting the jury
to decide with their emotions rather than with reason.
I had hoped that the four arguments condemned by the majority in Storey required
reversal because of their cumulative impact, not individually. Taken together, those
arguments were both qualitatively and quantitatively more egregious than the
prosecutor's isolated remarks in this case. The Storey comments were graphic; these
are not. The Storey comments painted gruesome pictures of the manner in which the
defendant hacked and mutilated the victim's body; the comments in this case do not.
But the decision in this case makes clear that for the majority, any argument offered by
the state that suggests directly or indirectly that a non-rational basis can play any role in
the jury's penalty decision is per se grounds for reversal of a death sentence. I
disagree.
I dissented in Storey, 901 S.W.2d at 903-06 (Robertson, J., dissenting). I was not able
to persuade my colleagues with quotations from Aristotle or with references to the
findings of modern science that emotion and reason walk hand- in-hand in every human
decision. To those words I offer two additional authorities: Daniel Goleman's observed
that "[t]he predominant models among cognitive scientists have lacked an
acknowledgment that rationality is guided by ... feeling." D. GOLEMAN, EMOTIONAL
INTELLIGENCE 41 *941 (1995). And Richard Weaver reminds that "[w]hen we affirm
that philosophy begins with wonder, we are affirming in effect that sentiment is anterior
to reason. We do not undertake to reason about anything until we been drawn to it by
an affective interest." R. WEAVER, IDEAS HAVE CONSEQUENCES 19 (1948).
There is little purpose in repeating in full what I said in Storey. I remain of the view that
people are more than cold carriers of binary code who can employ pure logic in deciding
whether a man who gunned down an eight-year-old's stepfather in her presence and,
then, tried but failed to kill her deserves the death penalty.
To determine whether the penalty phase meets the demands of the constitution, two
separate legal standards apply: the Eighth Amendment and the Due Process Clause of
the Fourteenth Amendment. The majority does not employ an Eighth Amendment
analysis in this case. Instead, the majority relies on the plurality opinion [FN1] in
Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (1977),
for authority. Gardner is a due process case. A Florida trial judge imposed the death
sentence over a jury recommendation of life in prison. In imposing that sentence, the
trial court relied on a pre-sentence investigation that the jury did not see and that
contained information that the defendant had no opportunity to explain or deny. The
Supreme Court's plurality holding says:
25a
FN1. Only two other justices agreed with Justice Stevens's due process analysis
there. Chief Justice Burger concurred in the judgment without comment.
Justice Blackmun concurred in the judgment on stare decisis grounds. Justice
White concurred in the judgment on Eighth Amendment grounds. Justices
Brennan and Marshall concurred on the basis of their conviction that the Eighth
Amendment prohibits capital punishment in every instance. Then-Justice
Rehnquist dissented.
We conclude that petitioner was denied due process of law when the death sentence
was imposed, at least in part, on the basis of information which he had no opportunity
to deny or explain.
Id. at 362, 97 S.Ct. at 1207.
The sentence from Gardner the majority quotes as authority for its holding here--"It is of
vital importance to the defendant and to the community that any decision to impose the
death sentence be, and appear to be, based on reason rather than caprice or emotion"-is little more than a general statement of legal principle. It is dicta dressed up with no
place to go. This is because Justice Stevens's plurality opinion makes no apparent
effort to connect that "rule" with the facts of the case. Of particular import for this
Court's purposes here, there is no claim that emotion infected the Gardner trial at all.
Therefore, I do not see how Gardner applies to this case.
Nor is it plain to me how the majority's reference to section 565.035.3(1), RSMo 1994,
applies. That statute requires the Court to determine whether a sentence was imposed
under the influence of "passion." The majority apparently assumes that "emotion" and
"passion" are the same for all purposes. They are not. In the sense in which the
statute uses "passion," it means "the influence of what is external and opposes thought
and reason...." Webster's Third New International Dictionary 1651 (1976). "Emotion" as
the prosecutor meant it here means "the affective aspect of consciousness: feeling."
Id. at 742. Our criminal law notes the difference, recognizing crimes of passion as
crimes committed in the absence of all reason and deliberation. Section 565.023.1(1),
RSMo 1994. One can surely deliberate, however, in the presence of emotion.
In applying a due process standard, one must not forget individual words and
sentences are part of a process that must be considered in its totality to determine not
only the presence of error, but also its prejudice, if any. That process includes the trial
court reading painstakingly crafted instructions designed to assure that the jury's
deliberations are channeled in accordance with the processes demanded by the law.
The jury is told that the lawyers' arguments are not evidence. And the jury is told both
sides of the case--the defendant's often emotional plea for mercy and understanding as
well as the state's argument that death is appropriate under the law and facts of the
case.
*942 What is the proper standard? It is sufficient for these purposes to say that error
occurs where the state's argument or the court's instructions ask the jury to ignore
26a
reason and base its decision either solely or too heavily on emotion. Where the jury is
invited to use emotion together with reason, the state's argument merely acknowledges
the way homo sapiens makes decisions. "As Aristotle saw, the problem is not with
emotionality, but with the appropriateness of emotion...." (Emphasis in original.)
Goleman, xiv.
Turning first to the second of the prosecutor's statements, it is apparent that the state
invites the jury to apply all of the law, the facts and their emotion to their penalty
decision. This seems entirely consistent with due process when considered in the
context of human decisional modes and when cabined by instructions that direct the
jury's deliberation.
What about the invitation to express "outrage," "to get mad?"
In Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909 [2929-30], 49 L.Ed.2d 859
(1976) (plurality), we find these words:
In part, the death penalty is an expression of society's moral outrage at particularly
offensive conduct. This function may be unappealing to many, but it is essential in an
ordered society that asks its citizens to rely on legal processes rather than self-help to
vindicate their wrongs.... "When people begin to believe that organized society is
unwilling or unable to impose upon criminal offenders the punishment they 'deserve,'
then there are sown seeds of anarchy...."
(Emphasis added.) Id., quoting Furman v. Georgia, 408 U.S. 238, 308, 92 S.Ct. 2726,
2761, 33 L.Ed.2d 346 (1972)
(Stewart, J. concurring). We also find these words:
[I]n order to maintain a respect for law, it is essential that the punishment inflicted for
grave crimes should adequately reflect the revulsion felt by the great majority of
citizens for them.... The truth is that some crimes are so outrageous that society
insists on adequate punishment, because the wrongdoer deserves it....
Gregg, 428 U.S. at 183, n. 30, 96 S.Ct. at 2930, n. 30, quoting Royal Commission on
Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950) (testimony of
Lord Justice Denning).
The jury in a criminal case represents society. The jury expresses society's judgment
as to guilt and, in a first degree murder case, society's judgment as to whether a
murderer should live or die.
In this case the prosecutor asked the jury to express "outrage." If Gregg v. Georgia
can be believed, that is one of the purposes of the death penalty. As I read the majority
opinion, a prosecutor violates the due process clause when he or she merely quotes
from Gregg or uses "anger" and "mad" as synonyms for the outrage and revulsion to
which Gregg speaks.
To hold as does the majority, one must conclude (which I do not) that the state's
comments misstate the law and from that (faulty) premise conclude that jurors hear only
those words upon which the majority fixes and ignore all of the rest of the due process
27a
and Eighth Amendment protections built into the penalty-phase hearing. Even
assuming, arguendo, that the premise is proper, the danger of the majority's view is that
it permits the minutiae to become the whole. In this case, a verdant forest of due
process and Eighth Amendment protection surrounds the majority's acorn. The
majority sees only the acorn and misses the forest. Unless the Court is convinced--as
it must be to reach its holding--that the prosecutor's words carried such force that they
overrode the ability of the members of the jury to reason, consider the evidence, apply
the court's instructions, and reflect on the defendant's arguments, this sentence should
stand. As I am convinced to the contrary, I would affirm this sentence.
As must be apparent by now, I would affirm the death sentence along with the
judgment of guilt.
944 S.W.2d 925
END OF DOCUMENT
28a

En Banc.
STATE of Missouri, Respondent,
v.
Leon TAYLOR, Appellant.
No. SC 81748.
April 4, 2000.
As Modified on Denial of Rehearing
May 9, 2000.
*368 Melinda K. Pendergraph, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City,
for Respondent.
MICHAEL A. WOLFF, Judge.

Leon Taylor was convicted in his first trial of first degree murder, first degree robbery,
first degree assault, and three counts of armed criminal action. After the jury
deadlocked, the trial judge sentenced Taylor to death on the murder conviction. This
Court affirmed the convictions but granted a new penalty phase trial on the murder
conviction. State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997). In the second penalty
phase trial, the jury recommended, and the court imposed, the death penalty for the
first-degree murder conviction. We have jurisdiction. Mo. Const. art. V, sec. 3.
Taylor's main contentions on appeal are that he was discriminated against on the basis
of his race in two respects:
(1) That the prosecutor's peremptory strikes, which resulted in an all white jury,
violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986);
and
*369 (2) That the Jackson County prosecutor's office discriminates against AfricanAmerican defendants, and specifically Taylor, in the process that it uses to decide
when to seek the death penalty.
Both of Taylor's major contentions are based on statistical disparities. In racial
discrimination cases, it has been commonplace for courts to observe that "statistics tell
much, and courts listen." [FN1] However, statistical analysis is only the beginning, not
the end of the inquiry. The ultimate issue is whether racial discrimination has occurred,
and racial discrimination is an intentional act. Courts consider statistical evidence of
racial disparities and in some cases shift the burden of producing evidence or
29a
explanation to the state, as in Batson.
FN1. This quote appears to have originated in the 1962 decision of the United
States Court of Appeals for the 5 th Circuit in State of Alabama v. United States,
304 F.2d 583 (5 th Cir.1962).
In this case, the trial judge gave careful consideration to Taylor's allegations and made
appropriate findings based upon the evidence in accordance with the totality of
circumstances. Although racial disparities exist, as Taylor points out, the burden of
persuasion as to intentional racial discrimination remains with Taylor. The trial court
found after careful review of the circumstances that Taylor failed to meet this burden.
For reasons that follow, we affirm the trial court's judgment.
I. Facts [FN2]
FN2. Summarized from Taylor's original appeal, State v. Taylor, 944 S.W.2d 925
(Mo. banc 1997).
On April 14, 1994, Taylor, his half-brother, Willie Owens, and his half- sister, Tina
Owens, were driving in Tina's car, discussing various robbery possibilities. Taylor
suggested a gas station in Independence where only one person would be working.
The trio went to the station and purchased some gasoline. Taylor asked whether they
were going to rob it. Tina Owens said "no" because a little girl was inside. Sarah
Yates, an eight-year-old, was keeping company with Robert Newton, her stepfather and
the gas station manager.
The three left the station, only to return a few moments later after the oil light came on.
Willie Owens went into the station and asked for some oil. Taylor next entered the store
and stated they needed a different weight of oil. Taylor then drew a pistol and stated
that he would shoot Newton unless he gave them money. Newton complied, handing
Owens approximately $400 in a bank moneybag. Owens took the money and returned
to the car.
Taylor directed Newton and the child to the station's back room. Taylor shot Newton
once in the head, killing him. Taylor then pointed the gun at the child. Taylor pulled
the trigger, but the gun jammed and did not discharge. Frustrated, Taylor locked the
child in the back room and returned to the car. Taylor told Willie and Tina Owens that he
had shot the man and that he had to go back inside to get the little girl. However,
because the Owens couple wanted to leave, they then drove away.
II. Did the Prosecutor's Explanations for Striking Venirepersons Violate Batson?
30a
Taylor claims the trial court erred in overruling his motion based on Batson to the
prosecutor's peremptory strikes of six African-American venirepersons. He contends
that the trial court judge did not look at the "totality of the circumstances" in denying his
Batson challenges as required in Batson and our cases. We disagree.
After Taylor's case was remanded to the trial court for a new trial as to the penalty, the
new jury was all white. [FN3] The trial *370 court conducted the jury selection in three
phases. [FN4] In the first phase approximately 145 venirepersons were summoned for
jury service in the Jackson County courthouse. Each venireperson filled out a
questionnaire, which was drafted by the trial court with suggestions from counsel. The
second phase included two panels, one in the morning and one in the afternoon,
consisting of examination by counsel. The examination covered topics that were either
not the subject of the questionnaire or had nothing to do with the issues of publicity or
death qualification. The trial court ruled on strikes for cause in this second phase. In
the third phase of jury selection, members of the venire were questioned individually,
out of the presence of all other members, regarding their views touching upon the death
penalty, whether they had read or heard anything about the case, and other related
sensitive issues. In this third phase, both the trial court judge and counsel questioned
the venirepersons. The trial court judge allowed each side eleven peremptory strikes,
including two peremptory strikes for alternate venirepersons. See sections 494.480
and 494.485. [FN5]
FN3. In Taylor's first trial, four African-Americans served on the jury. The jury
deliberated over a two-day period and could not agree on punishment.
FN4. All three phases were held on different days within a few weeks of each
other.
FN5. All statutory references are to RSMo 1994, unless otherwise indicated.
[1][2][3][4] To establish a claim under Batson, the defendant must object to the
prosecutor's use of peremptory challenges as violating Batson and identify the
cognizable racial group to which the stricken veniremember belongs. State v. Parker,
836 S.W.2d 930, 939 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121
L.Ed.2d 566 (1992). The state then must provide race-neutral explanations for the
peremptory challenges. Id. This step of the process does not demand an explanation
that is persuasive. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834
(1995). If the prosecutor articulates a reason, the defendant must prove that the state's
proffered reason was merely pretextual and that the strike was in fact racially motivated.
Id. An appellate court will not overturn such a finding unless clearly erroneous. Parker,
836 S.W.2d at 939, n. 7, citing Hernandez v. New York, 500 U.S. 352, 368-69, 111
S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Griffin, 756 S.W.2d 475, 482 (Mo. banc
31a
1988); and State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486
U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).
Taylor objected that striking all six African-American venirepersons violated his and the
prospective jurors' rights to due process and equal protection under the United States
Constitution and the Missouri Constitution. The record reflects that the trial court judge
allowed both sides to make a detailed Batson record. The trial court judge found that
the prosecutor gave clear and reasonably specific explanations of his legitimate reasons
for exercising the peremptory challenges for all of the stricken venirepersons. [FN6] As
to the six African-American prospective jurors that were struck, the prosecutor gave the
following explanations:
FN6. The trial judge did not accept all of the prosecutor's explanations. For
instance, the court did not find that working for Ad Hoc, an organization that
supports law enforcement and victim groups, as a race-neutral reason. Further,
the court did not find knowing two criminal defense attorneys was a race-neutral
reason. See Footnote 8. However, the prosecutor was able to articulate other
race-neutral reasons for striking the venireperson.
Venireperson O.S.: "It goes back to several. One is hardship for money .... He's
wanted off because of his commitments as a coach. Also, his answer during the
individual questioning was the 'place myself in his shoes.' We took that to mean he
identified with him on this."
*371 Venireperson E.K.: "During the death penalty qualification, your initial question
is what are the views on the death penalty. She, without hesitation, said, 'Personally,
I'm opposed to the death penalty.' Also, it's a belief she has held for some time."
Venireperson T.J.: "[T.J.] marked F [FN7] on the questionnaire which flagged her
for the prosecution. She stated that she could not impose the death penalty. She
works for Ad Hoc .... She has two brothers who were convicted themselves of robbery
in the first degree. She was questioned herself about a murder that her nephew was
involved in. She is a friend of Doc Holliday."
FN7. The jury questionnaire included questions about the venirepersons' views
on the death penalty. The answer marked F stated: "Although I'm
philosophically, morally, or religiously against the death penalty, I do believe I
can follow the law that requires me to fully consider the death penalty as one of
the two possible options that I may vote for in this case."
Venireperson B.B.: "[B.B.], during individual voir dire, stated that, 'My first choice is
life without parole. Very very extreme to give the death penalty.' On her
questionnaire ... she has seen the results of someone being abused. From all the
discovery I've got, the Defendant's mitigation is abuse as a child."
Alternate Venirepersons L.W. and C.S.: "We struck the two who marked lowest
down towards leaning towards life without parole. Venireperson 64 also knows
32a
Charles Brown. [FN8] Charles Brown tried the Calvert Antwine case back when I was
a public defender and the effect of that case. Mr. Hunt's notes show that she was
very hesitant and that she stated, paraphrasing, she would lean towards life without
parole."
FN8. Charles Brown and Doc Holliday are attorneys involved in criminal defense
prosecution. Mr. Brown was involved in a highly publicized criminal trial in
Kansas City. Mr. Holliday is also an attorney active in Freedom, Inc., an AfricanAmerican political organization. Both are African-American. The court found
that knowing Mr. Holliday was not a race-neutral reason. The prosecutor
presented to the court that Mr. Holliday had been prosecuted by the Jackson
County prosecutor's office, which was a race-neutral reason.
Venireperson L.W.: "[Venireperson L.W.] marked F on her questionnaire. Also, her
answers, religiously she said she would be very hesitant [to impose the death
penalty]."
[5][6][7] The trial court judge is obligated to apply a three-pronged analysis in assessing
the explanations provided by the prosecutor. State v. Antwine, 743 S.W.2d 51, 64-65
(Mo. banc 1987). Trial judges must evaluate the susceptibility of the particular case to
racial discrimination, the prosecutor's demeanor and, finally, the judge must evaluate
the explanation itself. Id. at 65. Crucial to the analysis is whether similarly situated
white venirepersons escaped the state's challenge. Id. See also State v. Weaver, 912
S.W.2d at 509. Here, after the prosecutor gave these race-neutral reasons, the trial
judge made a preliminary ruling regarding Batson challenges and gave defense counsel
time to examine the questionnaires and determine if the record needed to be
supplemented as to the Batson challenges. [FN9] When a prosecutor articulates a
race-neutral reason for a strike, the burden shifts to the defendant to show that the
state's explanation was merely pretextual and that the strike was racially motivated.
State v. Elder, 901 S.W.2d 87, 90 (Mo.App.1995). Taylor did not assert that there were
white venirepersons on the panel who were similarly situated to O.S. and L.W.
Defendant failed to establish that the State's justification for striking these venirepersons
was mere *372 pretext. See also State v. White, 941 S.W.2d 575, 582 (Mo.App.1997).
FN9. Defense counsel did not object to this procedure of supplementing the
record regarding Batson challenges after the prosecutor was able to state its
reasons after each venireperson. At this time, the judge asked the defense
counsel how much time would be needed, and he responded that two hours
would sufficient.
[8] As to the other four prospective jurors, Taylor asserted similarly situated white
venirepersons on the panel who were not struck. As to Venireperson E.K., defense
counsel asserted that Venireperson D.R., a white male, also marked E [FN10] on his
33a
questionnaire. However, the prosecutor noted that the two were different in that
Venireperson D.R. hesitated in his answer about the death penalty and gave pros and
cons regarding when it was appropriate, whereas, Venireperson E.K. did not have any
hesitation in answering questions regarding her view on the death penalty.
FN10. The answer marked E stated, "I am generally against the death penalty,
but I believe I can put aside my feelings ..."
[9] Defense counsel asserted that Venireperson T.J. marked F on her questionnaire
and referred to a multiple homicide case, had two brothers who were convicted, and
had a cousin on trial. A similarly situated white male, Venireperson C.K., was not
struck even though he made reference to famous murderers Ted Bundy and John Gacy
and had a brother in prison. Venireperson C.K. marked D [FN11] on the
questionnaire.
FN11. The answer marked D stated, "I can vote for the death penalty if it is
appropriately based on the facts and the law ..."
Counsel next asserted that Venireperson C.S., who marked a D and an E on the
questionnaire and knew two attorneys, was similarly situated to Venireperson J.T., a
white female, who marked E on the questionnaire and whose husband was a friend of
an attorney.
The next prospective juror that defense counsel compared was B.B., who said she had
seen the results of someone being abused and the case would have to be extreme for
the death penalty to be imposed. B.B. was compared to Venireperson C.K., supra,
who stated that he had witnessed fights between his parents.
Up to this point it is clear that the prosecutor gave race-neutral reasons with distinctions
regarding the white venirepersons and the black venirepersons struck. See State v.
Weaver, 912 S.W.2d 499 (Mo. banc 1995) (hesitancy in answering questions is a raceneutral reason); State v. Brown, 998 S.W.2d 531 (Mo. banc 1999)(striking venireperson
convicted of a felony is race-neutral reason); State v. Smulls, 935 S.W.2d 9, 18
(employed by or related to attorneys survives a Batson challenge); State v. Turner, 921
S.W.2d 658 (Mo.App.1996) (venireperson struck because a family member was in
prison is a race-neutral reason); State v. Dunn, 906 S.W.2d 388 (Mo.App.1995).
However as to Venireperson B.B., there was extensive discussion by the trial court
judge and the attorneys regarding whether witnessing abuse was race-neutral when
there were several white venirepersons who had witnessed some form of abuse.
Ultimately, after looking at all the factors the trial court judge denied the challenge.
Counsel compared Venireperson B.B. to Venireperson P.A., who stated she knew
34a
many women who had been sexually assaulted, to Venireperson J.D., who stated that
one time she saw her brother-in-law grab her sister, and to Venireperson R.H., who
stated she had an abusive husband and she had sought an order of protection. The
trial court judge recognized that the white venirepersons all witnessed abuse and were
not struck by the state. The trial court judge reviewed Venireperson B.B.'s transcript
and noted "she definitely made some pretty pointed statements that show hesitation...."
Defense counsel agreed with the trial court judge's assertion that hesitancy towards the
death penalty is on its face a race-neutral reason. This Court has held that a
venireperson's hesitation in answering questions regarding the death penalty will
survive a Batson challenge. See State v. Weaver, 912 S.W.2d, 499 (Mo. banc 1995),
and State v. Morrow, 968 S.W.2d 100 (Mo. banc 1998). *373 The trial court judge
further stated, "I find it personally troublesome, the prospect of having in a death penalty
case with a black defendant having an all white jury ... I think that a race-neutral reason
has been established."
[10] Batson requires evaluating each stricken African-American venireperson on an
individual basis as to whether the stated reason was race- neutral and not a pretext for
discrimination. Taylor argues this process prohibited the judge from looking at the
totality of the circumstances as this Court has prescribed in Antwine, 743 S.W.2d 51,
and State v. Parker, 836 S.W.2d at 939. We disagree.
[11] At the outset, it is important to note, the trial court judge continually asked the
attorneys how each side wanted to proceed in regard to Batson. Defense counsel
made no objection to the proceedings as long as he could "supplement the record," as
he was allowed to do. Taylor is correct that trial court judges should take into account
a variety of factors. As we stated in Parker and Antwine, "the chief consideration
should be the plausibility of the prosecutor's explanations in light of the totality of the
facts and circumstances surrounding the case." Parker, 836 S.W.2d at 939; Antwine,
743 S.W.2d at 65.
Taylor directs this Court to a federal court of appeals case where the trial court judge,
according to Taylor, used a similar procedure during voir dire. There the appeals court
found a prima facie case of discrimination. Coulter v. Gilmore, 155 F.3d 912(7th
Cir.1998) In Coulter the trial judge looked "only in an isolated way at individual
venirepersons and individual reasons." Although not controlling or binding on this Court,
Coulter is distinguishable based upon the procedure used by the trial court.
A comparison of Coulter to the present case is helpful in demonstrating how the trial
judge here did follow the law in Batson and our cases, Parker and Antwine. In Coulter,
the government used nine peremptory challenges to strike African-Americans from the
jury venire; it also struck one non- African-American venireperson and left its four
remaining challenges unexercised. For each peremptory challenge, and before a
Batson challenge was raised by defense counsel, the state court instructed the
government to state its reasons for the strike. These strikes prompted Coulter's
attorney to move three times for a mistrial on the ground that Batson had been violated.
These were denied.
35a
The Illinois state appellate court initially remanded the case "for clarification of the
record concerning the jury selection procedure ..." because the record was unclear
regarding the judge's rulings, other comments or considerations, and his role during voir
dire.
On remand, the trial judge conceded that there was nothing in the previous record that
explained what the judge himself was doing at the time. The judge not only refused to
allow Coulter's lawyer to conduct further discovery or otherwise supplement the record,
but he also denied an express request from the lawyer to make an offer of proof. The
Illinois appellate court criticized the trial court's decision to require the state to give its
reasons for challenging each venireperson before the defendant raised a Batson issue,
recognizing that this procedure impeded clear analysis of the issues.
The seventh circuit court of appeals in Coulter stated, "The state judge made those
findings without ever taking into account the totality of the circumstances on the record;
instead, he looked only in an isolated way at individual venirepersons and individual
reasons, and even in that setting he overlooked remarkable similarities between the
excluded African-Americans and the non-excludable Caucasians." Additionally, the
seventh circuit criticized the "juror-by-juror" inquiry that the trial judge conducted,
unsupplemented by any final look at the record as a whole, despite *374 counsel's
efforts to present this evidence. The court noted this procedure "practically guaranteed
the conclusion that the prosecution was acting race neutrally."
The procedure used by the trial court judge in this case is clearly distinguishable from
the procedure in Coulter. The trial court judge here did a commendable job in making
the record clear and understandable. Both parties agreed to the procedure. Further,
the trial court judge did not allow the state to give its reasons for striking a prospective
juror before a challenge was made. After the state gave its peremptory strikes, the trial
court judge allowed defense counsel "as much time as needed" to look through the
questionnaires in order to supplement the record regarding similarly situated white
venirepersons. Defense counsel was then able to make a complete record of
prospective jurors who were similarly situated before the trial judge gave a final ruling
on the Batson issue.
The trial judge here also took a very active role. He took several notes for each
venireperson and reread transcript answers to supplement his notes. His comments
throughout the jury selection demonstrate that he was looking at relevant factors, the
evidence, and the totality of the circumstances:
Court: "I'd like to do [the challenges] one at a time. I wanted to see the whole
picture, but I think we ought to take them up one at a time, unless you have an
objection otherwise." [FN12]
FN12. This was in response to the trial court's having heard that six of the
African-Americans were struck by the state.
36a
Court: "The Defendant cannot really fully consider the information in response to
Batson records because they didn't know who the strikes were until the state
announces their strikes ... you'll know what their reasons are and then you can make a
rebuttal in one shot with the ability to carefully review those documents."
Court: "Don't you think ... when you're making strikes for the state and someone
shows a pronounced hesitation regarding the death penalty ... and I think Ms. B.B. fits
this category--I even reviewed her transcript, she made pointed statements that show
hesitation. Isn't that in and of itself a race- neutral reason? I feel for your situation ...
we have expanded voir dire and it creates a lot of information ... probably makes it
easier for the state to find a race-neutral reason."
Court: "I find it personally troublesome, the prospect of having in a death penalty
case with a black defendant having an all white jury ... I'm not sure intellectually I'm
comfortable with the situation, but I think it's pretty clear it's [race neutral reason] met."
Additionally, in the court's order denying defendant's motion for acquittal or new trial,
the trial court stated:
"In complete candor, this Court finds it ... morally and intellectually troublesome the
concept that a black defendant in Jackson County, Missouri, could be sentenced to
death based upon the recommendation of an all white jury."
These statements demonstrate the trial judge was sensitive to the Batson issues and
was aware of the surrounding circumstances. The trial court judge does not ultimately
have to use the words "totality of the circumstances" to comply with Batson. If the
record is clear that the trial judge looked at the totality of the circumstances, then this
Court will not disturb the trial court's decision. Here the trial judge looked at the "whole
picture," was aware that defendant was black and the jury members were white, and
gave defense counsel ample time and discretion to supplement the record.
Finally, the trial judge was presented with evidence of similarly situated white
venirepersons. The crucial and determinative *375 inquiry in a Batson claim is whether
the state has treated similarly situated venirepersons differently based on race. See
State v. Roberts, 948 S.W.2d 577, 602 (Mo. banc 1997).
a. Pattern of Strikes As Indicative of Pretext.
Taylor suggests that the trial court judge in failing to look at the totality of circumstances
did not consider the pattern of strikes in determining whether there was a discriminatory
motive. The record does not support Taylor's contention.
[12][13] While evidence of a pattern of strikes against African- Americans can be
indicative of racially motivated peremptory challenges, that is not the case here. See
Batson, 476 U.S. at 97, 106 S.Ct. 1712. The prosecutor in this case used six of eleven
peremptory challenges to strike all of the African-Americans sitting on the panel. As
this Court stated in State v. Griffin, the state is not required to adhere to a specific
mathematical formula in the exercise of its peremptory challenges. 756 S.W.2d 475,
482 (Mo. banc 1988). [FN13] In Griffin, the defendant pointed to no particular conduct
37a
on the part of the prosecutor that indicated racial motivation for his peremptory
challenges except that the prosecutor used half of his strikes against AfricanAmericans. Taylor fails to demonstrate a pretextual motive for the peremptory strikes
by the prosecutor. Even if the reasons given by the prosecutor result in the use of
strikes against African- Americans more often than against white venirepersons, the
strikes will not violate Batson without some showing that the prosecutor removed the
potential venireperson "because of" their race. Devoil-El v. Groose, 160 F.3d 1184 (8 th
Cir.1998) (In Devoil-El, the defendant argued that the trial judge did not look at the
totality of the circumstances and, thus, erred because he evaluated each strike
individually instead of looking at the pattern of strikes.)
FN13. The Court does not mean to discredit statistical studies, and in some
cases statistical support will be persuasive and useful, especially where the
prosecutor has articulated very weak race-neutral reasons or from other
surrounding circumstances, such as the prosecutor's prior conduct at death
penalty trials.
In the present case we recognize the superior vantage point occupied by the trial judge.
He was able to view the panel members; listen to their responses; analyze and
supervise the statements and questions made by the prosecutor during voir dire; and
evaluate the reasons the prosecutor offered for exercising his peremptory challenges as
he did. The trial judge found no discriminatory exclusion. Upon review of the record,
we find no statements or questions by the prosecutor or any other relevant
circumstances to support an inference of discrimination. The defendant has failed to
show purposeful discrimination.
b. McCleskey v. Kemp Does Not Apply to Batson Challenges.
Taylor asserts that the trial judge erred in applying McCleskey v. Kemp, 481 U.S. 279,
107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), to his Batson challenges. McCleskey is
significant in regard to Taylor's second issue discussed infra, regarding the prosecutor's
discretion in choosing to pursue the death penalty for this crime committed by Taylor.
Taylor argues that because the trial court judge's order "Denying Defendant's Motion
for Acquittal and New Trial" discusses McCleskey under the heading "Batson Issues,"
the correct Batson standard was not applied. The record in both the trial transcript and
the order refutes this assertion. After the defendant made his objections under Batson,
the trial judge stated:
"[it] has been called to my attention, number 1, I definitely need the race- neutral
reasons. I believe I think the case should stand for the proposition that I should make
findings and, further, *376 stand for the proposition that the defendant should have a
right to make a rebuttal argument before the ruling is made permanent ... I'm in
compliance with that case [Batson]."
The court's order does address McCleskey, but only after the court completed its
38a
discussion on its reasons for denying the Batson challenges.

The judge discussed McCleskey in the context of the jury selection procedure as a
whole, the death qualifying process, and his moral beliefs as to disparate treatment of
black defendants. His discussion did not misdirect his decisions on Batson challenges.
The judge cited McCleskey for its statistical studies and other data suggesting the death
penalty creates a disparate impact on people of color, especially in circumstances
where there is a black defendant and a white victim. See McCleskey at 285-292, 107
S.Ct. 1756. In McCleskey, the Supreme Court stated the statistics were not clear and
sufficient proof for an equal protection violation. But this, again, demonstrates the
judge was aware of surrounding circumstances and sensitive to defendant's claims.
The judge in this case did not use the wrong standard in denying the Batson challenges.
III. Prosecutorial Discretion in Seeking the Death Penalty
[14] Taylor's next point raises two issues. First, he alleges an equal protection
violation and an eighth amendment violation [FN14] by asserting that the decision to
seek the death penalty was the product of racial discrimination by the prosecutor's office
in that black defendants charged with murder are more likely than white defendants to
face the possibility of the death penalty. Second, he challenges the prosecutor's broad
discretion and claims the prosecutor discriminated against him specifically when
seeking the death penalty.
FN14. Taylor's brief addressed an eighth amendment violation in passing, noting

that in Furman v. Georgia, the Supreme Court held that it was cruel and unusual
punishment to sentence someone to death if the punishment is meted out
arbitrarily and capriciously. 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
Under section 565.035.3, this Court reviews each death penalty case to ensure
that the sentence was not given arbitrarily. See section VII., infra.
To establish an equal protection violation, Taylor directs this Court to statistics

demonstrating a disparity between black and white defendants and other defendants
with similar crimes who were offered life without parole.
These assertions have been rejected by this Court in State v. Mallett 732 S.W.2d 527
(Mo. banc 1987), and State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996). Mallett
specifically relied on McCleskey v. Kemp to determine that statistics alone would not be
enough to prove an equal protection violation. In McCleskey, the United States
Supreme Court held that "statistics indicating a disparate impact seldom suffice to
establish an equal protection claim." State v. Mallett, 732 S.W.2d 527, citing McCleskey
v. Kemp, 481 U.S. 279, 290, 107 S.Ct. 1756, 95 L.Ed.2d 262.
[15] To establish an equal protection violation, a defendant must show an intent to
discriminate. Mallett, 732 S.W.2d at 538. Here, in addition to statistics, Taylor
39a
presents evidence that in other murder cases the prosecutor did not seek the death
penalty but either allowed the defendant to plead guilty and receive life in prison or that
life imprisonment was the punishment that the prosecutor sought at trial. This is
insufficient evidence for an equal protection violation.
[16][17][18] Prosecutors are given broad discretion in seeking the death penalty. See
section 535.030. A prosecutor's broad discretion does not extend to decisions
deliberately based on unjustifiable standards such as race or some other entirely
arbitrary factor. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547
(1985). Taylor must prove both the prosecutor's *377 decision had a discriminatory
effect on him and it was motivated by a discriminatory purpose. As the Supreme Court
stated in McCleskey, "because discretion is essential to the criminal justice process,"
the Court demands "exceptionally clear proof" before it will infer that the discretion has
been abused. 481 U.S. at 297, 107 S.Ct. 1756 and Mallett, 732 S.W.2d at 539.
Prosecutors must look at a variety of factors including statutory aggravating
circumstances, the type of crime, the strength of the evidence and the defendant's
involvement in the crime in deciding whether to seek the death penalty. Taylor does
not present "exceptionally clear proof" the prosecutor's office arbitrarily seeks the death
penalty for black defendants or for him in particular. [FN15]
FN15. Taylor also contends that in closing argument the prosecutor made
comments directed at his right not to testify. Trial counsel is entitled to wide
latitude in making a summation. State v. Mahurin, 799 S.W.2d 840 (Mo. banc
1990). This claim was not properly preserved and no plain error exists. The
prosecutor's statements at best, raise a weak inference on Taylor's right to not
testify.
IV. Victim Impact Evidence is Admissible

[19] Taylor alleges that the trial court erred in overruling his objections to the testimony
of Sarah Yates as improper victim impact evidence. This Court has consistently held
that victim impact evidence is proper and admissible as long as it is not "so unduly
prejudicial that it renders the trial fundamentally unfair." Payne v. Tennessee, 501 U.S.
808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); State v. Roberts, 948 S.W.2d 577
(Mo. banc 1997); State v. Gray, 887 S.W.2d 369 (Mo. banc 1994). Victim impact
evidence is another form or method of informing the court about the specific harm
caused by the crime in question. State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999).
[20] Here, the only victim impact evidence presented during the penalty phase came
from Astrid Newton, the victim's wife, and Sarah Yates, the victim's stepdaughter.
[FN16] Ms. Yates testified that she considered Robert Newton her father and called him
"daddy." She testified about her relationship with Robert Newton. Ms. Yates also
described the attack against her father and her actions thereafter including saying a
long prayer over his body. The victim impact evidence here was relevant and
40a
admissible to inform the court of the impact Mr. Newton's death had on his family. See
section 565.030.4 and cases cited supra.
FN16. Taylor had nine mitigation witnesses to testify to his background and
childhood. There were more than 150 pages of transcript from these witnesses
compared to thirteen pages from Ms. Yates.
V. Trial Judge can Find Prior Convictions to be "Serious" and

"Assaultive."
[21][22] Taylor objected to Instruction Number 6 because it listed Taylor's prior
convictions and did not require the jury to find whether Taylor had one or more serious
assaultive convictions. [FN17] The trial *378 court overruled the objection, finding that
the submission of individual convictions was consistent with MAI-Cr3d 313.40 and the
Notes on Use. [FN18] MAI-CR3d 313.40 is the penalty phase instruction submitting
statutory aggravating circumstances. The trial court found the convictions of second
degree murder, attempted robbery in the first degree, and robbery in the first degree to
be serious assaultive convictions. The procedure employed here, in conformance with
the MAI and accompanying notes, detracts in no way from the function of the trier of
fact. The court must determine as a matter of law whether the prior convictions are
"serious assaultive criminal convictions," and then the jury is allowed to determine as a
matter of fact whether defendant indeed had prior convictions of second degree murder,
attempted robbery, and robbery. In State v. Parkus, 753 S.W.2d 881 (Mo. banc 1988),
the trial judge did not make the findings on the record but there was other evidence
presented regarding the conviction. In this case we do not reach the merits of whether
other evidence of the convictions is required to comply with the statute because the jury
found "at least one" other aggravating circumstance. See State v. Ramsey, 864
S.W.2d 320 (Mo.1993). The jury found as an aggravating circumstance, in addition to
his prior convictions, that Taylor murdered Newton for the purpose of receiving money
or any other thing of monetary value from Robert Newton or another. The aggravating
circumstances found by the jury were valid, however; even if the first three aggravating
circumstances were invalid, the proceedings were not tainted so as to invalidate the
other aggravating circumstance found and the death sentence imposed. See State v.
Sidebottom, 781 S.W.2d 791, 799 (Mo. banc 1989). A death sentence will be affirmed
if even one valid statutory aggravating circumstance is found. State v. Sloan, 756
S.W.2d 503, 509 (Mo. banc 1988). The trial court did not err.
FN17. Instruction No. 6 read, in pertinent part, as follows: In determining the

punishment to be assessed against the defendant for the murder of Robert
Newton, you must first unanimously determine whether one or more of the
following statutory aggravating circumstances exists:
1. Whether the defendant was convicted of Murder in the Second Degree on
July 31, 1979....
41a
2. Whether the defendant was convicted of Attempted Robbery in the First

Degree on June 1, 1982....
3. Whether the defendant was convicted of Robbery in the First Degree on July
30, 1985....
4. Whether the defendant murdered Robert Newton for the purpose of the
defendant receiving money or any other thing of monetary value from Robert
Newton or another.
5. Whether the murder of Robert Newton was committed for the purpose of
avoiding a lawful arrest of defendant.
You are further instructed that the burden rests upon the State to prove at least
one of the foregoing circumstances beyond a reasonable doubt....
Therefore if you do not unanimously find from the evidence beyond a reasonable
doubt at least one of the foregoing statutory aggravating circumstances exist, you
must return a verdict fixing the punishment of the defendant at imprisonment for
life by the Department of Corrections without eligibility for probation or parole.
FN18. The structure of our death penalty statute implicitly requires each statutory
aggravating circumstance be submitted separately because once a jury finds one
aggravating circumstance, it may impose the death penalty. Separation of such
prior convictions permits the jury to consider the death sentence if any one of
several convictions is found to exist. State v. Shaw, 636 S.W.2d 667 (Mo. banc
1982). By separating the prior convictions, any potential jury confusion is
eliminated. State v. Ramsey, 864 S.W.2d 320 (Mo.1993).
VI. No Double Jeopardy Violation for Submitting Aggravating Circumstance

[FN19]
FN19. Taylor asserted that the trial court erred in not submitting non-statutory
mitigating factors. Taylor submitted a non-MAI instruction proposing to include
non-statutory mitigating circumstances. The trial court rejected the proposed
instruction for MAI-CR 3d 313.44A. This court has held that non-statutory
mitigating circumstances do not have to be listed and are not required. State v.
Deck, 994 S.W.2d 527, 539 (Mo. banc 1999) and State v. Parker, 886 S.W.2d
908, 928-929 (Mo. banc 1994).
Taylor also objected to Instruction 6 because it submitted aggravating circumstances

that the previous trier, Judge Mauer, had found not to exist. [FN20] He asserts that the
state should have been collaterally estopped from submitting this aggravating
circumstance since the first trier of fact did not find it. He also alleges that the
submission constituted double jeopardy. In the first proceeding Judge Mauer did not
recite that the aggravating circumstance "defendant murdered Newton for the purpose
of receiving money or taking other thing of monetary value from Robert Newton or
42a
another" was not proven beyond a reasonable doubt as he did for the *379 fifth
aggravating circumstance "avoiding a lawful arrest." Instead, Judge Mauer asserted
that it was not applicable to the case because a different MAI paragraph should have
been used. This same argument was rejected in State v. Simmons, 955 S.W.2d 752
(Mo. banc 1997). See also Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90
L.Ed.2d 123 (1986).
FN20. During Taylor's first trial, the jury could not agree on punishment, thus
Judge Mauer became the trier of fact.
[23] Taylor asserts that the death penalty statute is unconstitutional. This argument
has been rejected. Our death penalty statute is constitutional. See State v.
Worthington, 8 S.W.3d 83 (Mo. banc 1999); State v. Mercer, 618 S.W.2d 1 (Mo. banc
1981); State ex rel. Davis v. Shinn, 874 S.W.2d 403 (Mo.App.1994).
VII. Proportionality Review
Section 565.035.3 requires this Court to conduct an independent review of a
defendant's death sentence. The Court must decide whether the death sentence is
excessive and disproportionate to other similar cases, whether the evidence supports
the jury's findings of an aggravating circumstance, and whether the sentence was not
imposed under the influence of passion, prejudice, or any other arbitrary factor.
After careful review of the record and transcript, this Court finds that the sentence of
death imposed on Mr. Taylor was not imposed under the influence of passion, prejudice
or any other arbitrary factor. In this case, the jury found two aggravating
circumstances, which consisted of murder for monetary gain and the offense was
committed by a person who has one or more serious assaultive criminal convictions.
See section 565.032.
[24] The evidence supports the findings. Considering the crime, the strength of the
evidence, and the defendant, this Court finds the facts of this case are consistent with
death sentences affirmed wherein victims were murdered in course of a robbery. See
e.g., State v. Jones, 979 S.W.2d 171 (Mo. banc 1998); State v. Barnett, 980 S.W.2d
297 (Mo. banc 1998); State v. Simmons, 955 S.W.2d 752 (Mo. banc 1997); State v.
Laws, 661 S.W.2d 526 (Mo. banc 1983); State v. Gilmore, 697 S.W.2d 172 (Mo. banc
1985); State v. Kreutzer, 928 S.W.2d 854 (Mo. banc 1996); State v. Tokar, 918 S.W.2d
753 (Mo. banc 1996); State v. Ramsey, 864 S.W.2d 320 (Mo. banc 1993).
VIII. Conclusion
For the foregoing reasons, the judgment is affirmed.
All concur.
43a
18 S.W.3d 366
END OF DOCUMENT
44a

En Banc.
Leon V. TAYLOR, Appellant,
v.
STATE of Missouri, Respondent.
No. SC 85119.
Jan. 27, 2004.
Rehearing Denied March 9, 2004.
*757 Melinda K. Pendergraph, Office of Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for
Respondent.
WILLIAM RAY PRICE, JR., Judge.

I.
Leon Taylor was initially convicted of first-degree murder, first-degree robbery, first-degree
assault, and armed criminal action and was sentenced to death on the first-degree murder
charge and life imprisonment plus 315 years for the other charges. This Court affirmed the
convictions but granted a new penalty phase trial on the murder charge. In the second penalty
phase trial, the jury assessed the death penalty and Taylor was so sentenced. This Court
affirmed. Taylor filed a Rule 29.15 motion and, in a detailed 42-page order, the trial court
denied relief. This Court has jurisdiction. Mo Const. art. V, section 10; standing order, June
16, 1988. The judgment is affirmed.
*758 II.
A.
On April 14, 1994, Leon Taylor, along with his half brother and half sister, robbed a gas station
in Jackson County. [FN1] During the robbery, without any particular cause, Taylor shot and
killed the gas station attendant while the victim's stepdaughter watched. After shooting the
attendant, Taylor turned the gun on the stepdaughter and pulled the trigger. The gun,
however, jammed and did not discharge. Frustrated, Taylor locked the young girl in the back
room and returned to the car to obtain another gun with which to shoot her. Fortunately,
Taylor's half brother and half sister convinced him to leave.
45a
FN1. For a more detailed recitation of the facts, see State v. Taylor, 944 S.W.2d 925,
930 (Mo. banc 1997), and State v. Taylor, 18 S.W.3d 366, 369 (Mo. banc 2000).
Taylor was tried and convicted of first-degree murder, first-degree assault, first-degree
robbery and three counts of armed criminal action. The jury could not agree upon punishment
for the murder conviction. The trial judge sentenced Taylor to death. This Court affirmed the
convictions but remanded for a new sentencing phase on the murder conviction, based on the
prosecutor's improper closing argument which urged the jury to decide the case based on
emotion. State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997).
A new sentencing proceeding was held and a jury assessed punishment at death. This Court
affirmed. State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000). Taylor sought post-conviction relief
in the form of a motion to vacate judgment and sentence pursuant to Rule 29.15. Taylor
alleged ineffective assistance of counsel. The motion was overruled, and Taylor appealed to
this Court.
B.
In the second penalty phase, Taylor was represented by Robert Wolfrum and Teoffice
Cooper. The motion court noted that both of these attorneys "are experienced lawyers with
substantial training in handling death penalty cases." Prior to the second penalty phase, both
attorneys had the chance to consult with Taylor's counsel from the first trial, whom the motion
court noted "were also experienced death penalty litigators." Wolfrum testified that he has
been handling capital cases exclusively since 1989. Both Wolfrum and Cooper have had
experience in capital litigation throughout the state of Missouri. Currently Wolfrum supervises
a group of attorneys in St. Louis who all handle death penalty litigation.
At the 29.15 hearing, Wolfrum was called to testify, but Cooper was not. Cooper is presumed
to have undertaken adequate investigation and made adequate strategic decisions. Taylor
has failed to carry his burden of proof regarding his allegations of Cooper's ineffective
assistance of counsel. See, State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996), cert.
C.
[1][2] The standard of review for claims of ineffective assistance of counsel is well settled in
this state. "[W]e look to whether appellant has established below that his counsel's
performance failed to conform to the degree of skill, care, and diligence of a reasonably
competent attorney, and that the defendant was thereby prejudiced." State v. Tokar, 918
S.W.2d 753, 761 (Mo. banc 1996) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); *759State v. Storey, 901 S.W.2d 886, 900 (Mo. banc 1995);
State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994)). The appellant has the burden of proving
prejudice by showing a "reasonable probability that, but for counsel's errors, the result of the
proceeding would have been different." Id.
46a
[3][4][5] In addition, a strong presumption exists that counsel was effective, which appellant
must overcome by a preponderance of the evidence. Id. In examining appellant's claims of
ineffective assistance of counsel, this Court should give deference to the decisions made by
appellant's counsel. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance. Id.
[6][7] "Strategic choices made after a thorough investigation of the law and the facts relevant
to plausible opinions are virtually unchallengeable." Tokar, 918 S.W.2d at 761 (citing
Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). Among the relevant factors for deciding
whether particular strategic choices are reasonable is "the potential for prejudice from taking
an unpursued line of defense." Strickland, 466 U.S. at 681, 104 S.Ct. 2052.
[8] Appellate review of the motion court's findings of fact and conclusions of law on a Rule
29.15 motion is limited to a determination of whether the findings and conclusions are clearly
erroneous. Rule 29.15(k); see State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997).
Findings of fact and conclusions of law are clearly erroneous only if after a review of the whole
record, the Court is "left with a definite and firm impression that a mistake has been made."
State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).
III.
A.
[9] Taylor first alleges he was denied effective assistance of counsel because his counsel in
the second penalty phase failed to investigate, rebut and object to the prosecutor's suggestion
that Taylor had stabbed a man to death in 1975. See State v. Hardin, 558 S.W.2d 804
(Mo.App.1977). The prosecutor's comment arose from a second-degree murder conviction, to
which Taylor pled guilty, for the death of Jessie Howarter, who died as a result of 16 stab
wounds. Taylor asserts that he pled guilty to stabbing at Howarter's side, but he was unsure
whether he inflicted any wounds and that if he did, the wounds he inflicted did not cause
Howarter's death. "Taylor either stabbed or attempted to stab Howarter." Id. at 806.
Rather, Taylor argues, his codefendant, Carl Hardin, was the one who stabbed Howarter to
death. Taylor submits that the state cannot rely on his testimony that he did not inflict the fatal
wounds to convict Carl Hardin and then later argue Taylor "stabbed a man to death" to show
he was a prior offender. Taylor argues the prosecution's comments were prejudicial and, as a
result, his counsel should have objected.
[10] At Taylor's 29.15 hearing, Wolfrum testified that he had read the police reports related to
the incident as well as the information from the Hardin case. He also testified that he was
aware that the state was allowed to read the information to the jury, which included Taylor's
confession to stabbing at Howarter's side. [FN2] Wolfrum further acknowledged he was aware
that under Missouri law, an accomplice *760 is as guilty as the principal of the crime. See
generally State v. Wurtzberger, 40 S.W.3d 893, 895 (Mo. banc 2001).
47a
FN2. An exhibit at the Hardin trial also showed that the bloodstains on Howarter's shirt,
Taylor's pants, and the butcher knife that was used to murder Howarter all matched.
Wolfrum also testified that prior to the second penalty phase trial he was aware that the state
would rely heavily upon the conviction and that he had strong feelings that the conviction
would be damaging to Taylor's case. Wolfrum testified that he was also concerned about how
the jury would react to the fact that Taylor had testified against Hardin. The motion court noted
that both Wolfrum and Cooper spent substantial time prior to the second penalty phase trial
advocating for specific voir dire procedures that would touch upon the prior murder conviction.
As a result, each juror at the second penalty phase was subject to individual voir dire on the
subject of Taylor's prior murder conviction.
The motion court found Wolfrum's testimony at the 29.15 hearing indicated that he and his cocounsel did not object to the prosecutor's references to the prior conviction because they felt
that "objecting excessively to the evidence of the murder conviction could unduly emphasize
what they considered to be damaging evidence." As a result, they decided it was better trial
strategy not to object.
Taylor had pled guilty to second-degree murder as a result of stabbing at Howarter. In
addition, the medical examiner in the case substantiated the existence of a flank wound that
corroborated Taylor's testimony. Whether or not he inflicted the fatal wound, he participated in
a violent assault that left a man dead. If Taylor's counsel had objected to the prosecutor's
statements, they would have been drawn into the details of Howarter's death to provide the
context for Taylor's testimony that he did not inflict the fatal stab wound.
Given that Howarter suffered 16 stab wounds and evidence existed that Taylor participated in
the attack, it is not unreasonable that Taylor's counsel would choose to ignore the prosecutor's
statement rather than exposing the jury to more gory details of the murder. Moreover, as the
motion court noted, an effort by Taylor to trivialize the prior murder plea and conviction in the
brutal circumstances of that case could have been "problematic."
[11] This Court is to give deference to the decisions made by appellant's counsel. Strickland,
466 U.S. at 689, 104 S.Ct. 2052. "There is a presumption that counsel's alleged omissions
were sound trial strategy." Tokar, 918 S.W.2d at 766 (citing Sidebottom v. State, 781 S.W.2d
791, 795 (Mo. banc 1989)). Taylor's counsel made a strategic decision to avoid putting
emphasis on the details of Taylor's previous murder conviction so as not to damage his case.
The evidence shows that Wolfrum made a sufficient investigation into the facts surrounding the
conviction as well as the law regarding accomplice liability. As mentioned, "[s]trategic choices
made after a thorough investigation of the law and facts relevant to plausible opinions are
virtually unchallengeable." Id. at 761. Taylor's counsel's performance met the degree of skill,
care, and diligence of a reasonably competent attorney. Id.
[12] Likewise, Taylor has failed to show "a reasonable probability that, but for counsel's errors,
the result of the proceeding would have been different." Id. Rather, the evidence shows that if
Wolfrum or Cooper had objected and the details of the previous murder were revealed to the
48a
jury, it is likely Taylor's case would have been harmed and the outcome would have been the
same. The motion court was not erroneous, clearly or otherwise, when it denied Taylor's
motion on this point.
*761 B.
[13] Taylor next alleges he was denied effective assistance of counsel because his attorneys
failed to investigate and present evidence of his mental state at the time of the robbery and
murder. Specifically, Taylor argues Dr. William Logan should have been called to establish the
statutory mitigators of extreme mental or emotional disturbance and substantial impairment of
Taylor's capacity to appreciate the criminality of his conduct.
At the 29.15 hearing, Wolfrum testified that he and his co-counsel hoped to get the jury to
think of Taylor as a victim of his disadvantaged background and to avoid focusing on specific
details at the time of the crime. Wolfrum testified that they hired Dr. Robert Smith, a forensic
and clinical psychologist, to evaluate Taylor. Dr. Smith's report contained findings similar to
Dr. Logan's. As the motion court noted, "A very substantial part of the important information
utilized by Dr. Logan and Dr. Smith was the same information that was presented by counsel
to the jury during the course of the retrial of the penalty phase." Dr. Smith's report found that
Taylor had alcohol dependence, cannabis dependence, post-traumatic stress disorder,
dysthymic disorder, and mixed personality disorder with antisocial and paranoid features.
Wolfrum testified, however, that they specifically avoided having Dr. Smith testify about
Taylor's mental state at the time of the murder because they felt that tying his family history to
the events of the night of the crime would have been problematic. Instead, Wolfrum testified
that he and his co-counsel also retained Robert Dempsey, a psychiatric and clinical social
worker and therapist, who testified regarding the fact that Taylor's family life affected his ability
to make reasoned and good choices. The testimony of both of these professionals was
presented at the second penalty phase to establish that Taylor was a victim of his
circumstances.
This line of defense was supplemented by the testimony of Taylor's relatives, friends of
Taylor's relatives, a former judge, and a police officer. Penalty phase counsel also presented
evidence that Taylor's mother had abused him, stabbed and shot others, and was a chronic
alcoholic who drank while Taylor was in utero and gave him alcohol as a child. Penalty phase
counsel presented evidence that Taylor never received guidance about what was right and
wrong and that he was sexually abused when he was five years old. In addition, counsel
presented evidence that Taylor suffered from depression when he was a teenager. All of this
evidence was presented in a more general sense as mitigating evidence to show that Taylor
was the victim of a troubled upbringing.
Again, Wolfrum stated he was aware of the possibility of presenting evidence similar to Dr.
Logan's report regarding Taylor's mental state at the time of the murder but thought it was not
a strong direction to pursue. Wolfrum noted that he and co-counsel chose not to include Dr.
Logan's type of testimony because it might result in opening the door to damaging statements
Taylor had made about the murder. As Wolfrum testified, "[I]f you put a doctor on, you're
49a
opening him up to some cross examination by the State that with hearsay they might find
useful ... that's one danger that might not otherwise come in." Dr. Logan testified at the 29.15
hearing that Taylor knew right from wrong, was able to appreciate the wrongfulness of his
actions at the time of the murder, and the murder was not caused by post-traumatic stress
disorder but may have been caused by Taylor's despondency and intoxication.
*762 [14] "Generally, the selection of witnesses and the introduction of evidence are questions
of trial strategy and virtually unchallengeable." State v. Kenley, 952 S.W.2d 250, 266 (Mo.
banc 1997). "[D]efense counsel is not obligated to shop for an expert witness who might
provide more favorable testimony." Id. at 268 (citing Taylor, 929 S.W.2d at 225; State v.
Mease, 842 S.W.2d 98, 114 (Mo. banc 1992)).
It was not unreasonable trial strategy for Taylor's penalty phase counsel to attempt to
establish that Taylor himself was a victim of a disadvantaged background. The testimony of
Dr. Smith, Dempsey, and the other witnesses was presented toward this goal. Penalty phase
counsel were not obligated to shop for another expert. Trial counsel also were not
unreasonable in fearing that the adverse aspects of Dr. Logan's testimony might outweigh the
usefulness of his other testimony and might refocus the jury on the brutal facts of the crime.
The motion court's finding on this issue is not erroneous, clearly or otherwise, when it denied
Taylor's motion on this point.
C.
[15] Taylor next argues he received ineffective assistance of counsel because his penalty
phase counsel failed to present evidence of his mental retardation. In support of this
allegation, Taylor cites Dr. Logan's findings that Taylor's use of inhalants decreased his IQ by
10 points and placed him in the borderline mentally retarded range. Taylor argues that
testimony regarding his mental retardation could have prevented him from receiving the death
penalty because the Eighth Amendment precludes executing the mentally retarded. Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
The state argues Taylor waived this claim by failing to raise it in his 29.15 motion. Taylor
argues he pled this sufficiently by putting his mental state in issue as well as by pleading
counsel's failure to call Dr. Logan at the penalty phase trial. At no point does Taylor's 29.15
motion mention "mental retardation." He pled that his counsel failed to have Dr. Smith testify
how "years of physical, emotional, and sexual abuse resulted in irreversible psychological
damage to Leon which impacted his behavior on the night of the crime." Likewise, he pled that
his counsel failed to have a psychiatrist testify as to how his childhood affected his "adult
mental health" and "ability to think cogently and rationally or to control his impulses."
Finally, he pled that his counsel failed to present evidence that the emotional disappointments
he suffered, the marijuana and alcohol he ingested, in addition to his post-traumatic stress
disorder and depression, put him "under the influence of extreme mental or emotional
disturbance" and "diminished [his] capacity" at the time of the crime. However, none of these
pleadings amounts to a plea of failure to present evidence of mental retardation. Taylor did not
50a
specifically plead mental retardation.

[16] Nonetheless, even if Taylor had successfully pled the claim, evidence in the record does
not support a finding that Taylor's counsel was ineffective in failing to pursue a defense based
on mental retardation. First, Taylor failed to present any witness who would testify that he fit
the definition of "mental retardation" set out in section 565.030.6. [FN3] Second, Dr. Logan's
*763 testimony that Taylor's IQ fell to "borderline retarded" was only while he used chemical
inhalants. Dr. Logan also testified that Taylor's IQ was in the "low normal range." Finally, to
emphasize the significance of this tenuous theory would require counsel to highlight that Taylor
was acting under the voluntary influence of inhalants during the crimes. Evidence of
substance abuse can be seen as an aggravating circumstance, rather than a mitigating
circumstance; thus, it is reasonable for trial counsel to avoid such evidence to prevent
damage to a defendant's case. See Kenley, 952 S.W.2d at 269. Taylor has not proven that
his counsel's failure to pursue a claim of mental retardation was unreasonable.
FN3. Section 565.030.6 defines "mental retardation" as:

[A] condition involving substantial limitations in general functioning characterized by
significantly subaverage intellectual functioning with continual extensive related deficits
and limitations in two or more adaptive behaviors such as communication, self-care,
home living, social skills, community use, self-direction, health and safety, functional
academics, leisure and work, which conditions are manifested and documented before
eighteen years of age.
565.030.6 RSMo Supp.2001 (emphasis added).
Along with Taylor's claim of ineffective assistance of counsel for failure to present evidence of
his mental retardation, he alleges that because he was borderline mentally retarded at the time
of the offense, the death penalty is disproportionate and unconstitutional. See Atkins, 536 U.S.
at 304, 122 S.Ct. 2242. Because Taylor has failed to present any credible evidence in support
of his claim that he was mentally retarded at the time of the offense, his sentence of death is
not unconstitutional under Atkins.
[17][18] Further, his sentence is not disproportionate to the offense. The evidence supports
the jury's finding that Taylor was a person who has one or more serious assaultive criminal
convictions, as he had previous convictions for second-degree murder, attempted robbery in
the first degree, and robbery in the first degree. Section 565.032.2(1) (statutory aggravating
factor for first-degree murder). The evidence also supports the jury's finding that Taylor
committed the murder for the purpose of receiving money or anything of monetary value from
the victim or another. Section 565.032.2(4) (statutory aggravating factor for first-degree
murder). As this Court noted in Taylor's previous proceedings, "A death sentence will be
affirmed if even one valid statutory aggravating circumstance is found." Taylor, 18 S.W.3d at
378.
Finally, Taylor murdered a man, without cause, in front of the man's stepdaughter and then
attempted to kill the girl as well. The imposition of the death penalty in such a circumstance
51a
cannot be said to be disproportionate. Tokar, 918 S.W.2d at 773.

Taylor has not presented any credible evidence to support this claim.
D.
[19] Taylor next alleges ineffective assistance of counsel for failure to investigate and present
additional evidence through expert Dr. Smith that he suffered from depression, post-traumatic
stress disorder, and alcohol and drug dependence. Taylor argues these establish the statutory
mitigators of extreme mental or emotional disturbance and substantial impairment of capacity
to appreciate the criminality of his conduct. Taylor argues this mitigation would have reduced
his culpability and likely resulted in a life sentence. Taylor's argument here is closely related to
the argument discussed in section III.B. above, and it simply focuses on additional testimony
that might have been presented *764 through Dr. Smith instead of Dr. Logan's testimony.
At the 29.15 hearing, Wolfrum testified that he met with Dr. Smith, read Dr. Smith's reports,
and corresponded with him. He testified that he was aware of Dr. Smith's findings and
potential for testifying concerning Taylor's mental health. He also testified that Dr. Smith
requested a trauma system inventory (T.S.I.) test to examine Taylor for post-traumatic stress
syndrome. Taylor's counsel provided Dr. Smith with the results of a T.S.I. that had been
performed on Taylor in 1998, but Dr. Smith wanted to retest him. Taylor's counsel had Dr.
Smith retest Taylor and send the results to counsel. Wolfrum further testified he would not
have discouraged further investigation by Dr. Smith unless he had a strategic reason for
believing it would be harmful. He testified that funding was not an issue.
Wolfrum stated further that he and co-counsel chose to present a defense that asked for
mercy based on Taylor's life history, rather than one that focused the jury on the facts of the
murder by arguing Taylor could not control his actions at that time because of mental diseases
or defects. Counsel testified he could have presented evidence of mental illness through Dr.
Smith, but he thought it was not a strong defense to pursue.
Additionally, Wolfrum stated there were a number of harmful statements made by Taylor to Dr.
Smith that could have come in on cross-examination if they tried to blame the murder on
mental diseases or defects. Penalty phase counsel's strategic choices as to this issue cannot
be said to be unreasonable. The motion court was not erroneous, clearly or otherwise, in
denying Taylor's motion on this point.
E.
[20] Taylor finally argues his counsel was ineffective for failing to present evidence of Taylor's
good conduct in prison and positive influence on others. Taylor argues he reached out to
others, writing words of encouragement and expressing remorse for his past misdeeds.
Wolfrum testified that he and his co-counsel chose not to present a lot of evidence of Taylor's
good conduct in prison for strategic reasons. If they had presented evidence of Taylor's good
conduct in prison, the state may have introduced rebuttal evidence of Taylor's misconduct.
Taylor's own evidence at the 29.15 hearing showed that while in the custody of the Department
52a
661 S.W.2d 794

(Cite as: 661 S.W.2d 794)
Page 9
of Corrections, he had numerous institutional violations for offenses including fighting, assault,
forcible sexual misconduct, rioting (which resulted in the death of one correctional officer and
injuries to four others), theft, fraud, disobeying orders, possession or use of controlled
substances, giving false information, a sanitary violation, tampering with a locking device,
being out- of-bounds, possession of contraband, and destroying state property. It is not
unreasonable that Wolfrum and his co-counsel would choose to avoid having this information
presented to the jury.
Nonetheless, Wolfrum stated that they did call at least one witness to testify about the positive
effects Taylor had on her. However, because calling many similar witnesses would have
required them to put other death row inmates on the stand, Wolfrum stated they did not call
others because they did not want the jury to infer that Taylor had been on death row. Wolfrum
stated that during retrials of penalty phases in these cases, the potential for a jury to infer that
the defendant has already been on death row is something to "worry about."
In addition, Wolfrum testified that they did not present evidence of Taylor's poetry *765 for
strategic reasons. He noted that prosecutors can easily belittle the positive nature of poetry by
putting it up against the crime for which the defendant was convicted. Wolfrum said he and his
co-counsel were very concerned about Taylor maintaining credibility, and they felt that
introducing evidence of his poetry might actually be damaging to the case. Taylor has failed to
present evidence as to why this was an unreasonable trial strategy. As a result, Taylor has not
demonstrated how he was prejudiced by this strategic choice.
The motion court's finding is not erroneous, clearly or otherwise, in denying Taylor's motion on
this point.
V.
The judgment is affirmed.
All concur.
126 S.W.3d 755
END OF DOCUMENT
Copr.
53ato Orig. U.S. Govt. Works

West 2004 No Claim
United States Court of Appeals,

Eighth Circuit.
Leon TAYLOR, Appellant,
v.
Donald ROPER, Appellee.
No. 07-2882.
Submitted: Jan. 15, 2009.
Filed: Aug. 19, 2009.
Rehearing and Rehearing En Banc Denied Oct. 22, 2009.FN*
FN* Judge Benton did not participate in the consideration or decision of this matter.
*851 Elizabeth Unger Carlyle, Columbus, MS, argued (Dana M. Altieri, Lee's Summit, MO, on
the brief), for appellant.
*852 Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay)
Nixon, Atty. Gen., on the brief), for appellee.
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
COLLOTON, Circuit Judge.
A jury convicted Leon Taylor of first-degree murder under Missouri law, and a different jury
sentenced him to death. After the Supreme Court of Missouri affirmed his conviction and sentence and upheld the denial of his motions for state post-conviction relief, Taylor filed a petition
for writ of habeas corpus under 28 U.S.C. 2254. In his petition, Taylor, who is a black male,
alleged that the prosecution exercised peremptory challenges based on race, in violation of the
Equal Protection Clause, during the selection of both the jury that convicted him and the jury that
sentenced him. The district court FN1 denied Taylor's petition, and we affirm.
FN1. The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western
District of Missouri.
I.
In 1994, Taylor was prosecuted for the robbery and murder of a gas station manager in Independence, Missouri. The Supreme Court of Missouri summarized the incident in its opinion affirming Taylor's convictions. On April 14, 1994, Taylor and two of his relatives, Willie and Tina
54a
Owens, pulled into a gas station in Independence. Willie entered the station, and Taylor soon followed. The manager of the station and his eight-year-old stepdaughter were inside. Taylor drew a
gun and demanded money from the manager, threatening to shoot him if he did not comply. After the manager handed Willie $400, Taylor ordered the manager and the girl into a back room.
There, Taylor shot and killed the manager. Taylor then pointed the gun at the girl and pulled the
trigger, but the gun jammed and failed to discharge. Taylor left the girl locked in the back room,
and drove away with his companions. See State v. Taylor (Taylor I), 944 S.W.2d 925, 930
(Mo.1997).
Taylor was arrested and charged with first-degree murder, first-degree robbery, first-degree assault, and three counts of armed criminal activity. The Jackson County prosecutor's office gave
notice of its intention to seek the death penalty, and the case proceeded to trial.
During jury selection, the prosecution exercised peremptory strikes against three black members
of the venire: Antoinette Gordon, Jason Johnson, and Ray Lovelace. Citing Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defense counsel objected to the strikes, alleging that they were motivated by the race of the prospective jurors and thus prohibited by the
Equal Protection Clause of the Fourteenth Amendment. After the prosecution proffered raceneutral reasons for the strikes, the trial court asked if there was [a]nything further. Defense
counsel said no, and the trial court overruled Taylor's objections.
Several days later, after the jury had been chosen and the venire discharged, defense counsel renewed Taylor's objection to the prosecution's strike of Lovelace. Based on a further review of the
record, counsel argued that the prosecution's race-neutral reasons for removing Lovelace were
pretextual. The prosecution stood by its reasons for the strike, and the trial court again overruled
Taylor's objection.
After a trial, the twelve-member jury, which included four black jurors, found *853 Taylor guilty
of all charges. The jury, however, could not agree on whether Taylor should be sentenced to
death for first-degree murder, and under Missouri law at the time, the decision fell to the trial
judge. See Mo.Rev.Stat. 565.030.4, invalidated in part by State v. Whitfield, 107 S.W.3d 253
(Mo.2003). After conducting an additional hearing, the trial court determined that the death penalty was appropriate based on the aggravating circumstance that Taylor had three prior serious
assaultive criminal convictions. Id. 565.032.2(1). The trial court sentenced Taylor to death on
the murder charge, and life plus 315 years' imprisonment on the remaining charges. Taylor appealed to the Supreme Court of Missouri. While his direct appeal was pending, Taylor filed a
motion for post-conviction relief under Missouri Supreme Court Rule 29.15, alleging, among
other things, that his trial counsel was ineffective. The trial court denied the motion, and Taylor
appealed that ruling to the Supreme Court of Missouri as well.
The state supreme court resolved both Taylor's direct appeal and his appeal from the denial of
post-conviction relief in a single decision. The court held that Taylor abandoned his Batson
objections to the peremptory strikes of Gordon and Johnson by challenging the prosecution's
55a
race-neutral reasons for the first time on appeal. Taylor I, 944 S.W.2d at 934. The court suggested that Taylor also waived his objection to the strike of Lovelace by challenging the prosecution's explanation too late, after the venire had been discharged. Id. The supreme court
[n]evertheless examined the prosecution's reasons for striking Lovelace, and concluded that
the trial court decision was not clearly erroneous. Id. Rejecting Taylor's Batson claims, the supreme court affirmed his convictions, affirmed in part and dismissed as moot in part the denial of
his Rule 29.15 motion, and affirmed his sentences for the noncapital offenses. Id. at 940. The
court, however, reversed the sentence of death on the ground that the prosecution improperly
urged jurors to rely on their emotions to decide whether the death penalty was appropriate. Id. at
937-38. The case was remanded for a second penalty phase. Id. at 940.
On remand, a new jury was selected to consider Taylor's punishment for first-degree murder.
Voir dire proceeded in three phases. In the initial phase, the trial court asked prospective jurors to
complete a questionnaire covering various topics, including their views on the death penalty. The
court also identified prospective jurors who would suffer undue or extreme hardship from sitting
on the jury, and excused those jurors from service. In the next phase, the court divided the remaining jurors into two panels. The prosecution and the defense questioned each panel separately, addressing the jurors as a group. Following this questioning, the court excused a number
of jurors for cause.
In the final phase, the court called remaining jurors one at a time to answer further questions
from the court and the parties. At the conclusion of each juror's questioning, the parties were
given an opportunity to make a challenge for cause, and each juror who was not then excused by
the court was deemed qualified. The court continued to call individual jurors for questioning
until there were thirty-eight qualified jurors. Of this number, thirty were placed on a panel of
prospective principal jurors, and eight on a panel of prospective alternate jurors. The prosecution
and the defense were each given nine peremptory strikes to remove prospective principals and
two peremptory strikes to remove prospective alternates, so that twelve principal jurors and four
alternates ultimately would be selected.
*854 The prosecution used its peremptory strikes to remove all six blacks on the final two panels: Ozie Stanley, Tracy Johnson, Edwina Kinsey, and Bonnye Brown from the panel of prospective principal jurors, and Latricia Wilson and Cecilia Smith from the panel of prospective alternates. Defense counsel objected to these strikes on the ground that they were unconstitutionally
based on race. After the prosecution offered race-neutral reasons for each strike, defense counsel
reasserted its Batson objections and compared some of the blacks who were struck to whites who
were not. The court eventually overruled all six of Taylor's Batson objections.
The resulting jury recommended that Taylor receive the death penalty, and the trial court imposed a sentence of death. The Supreme Court of Missouri affirmed Taylor's sentence, concluding that his penalty-phase Batson claims lacked merit. State v. Taylor (Taylor II), 18 S.W.3d 366
(Mo.2000). Taylor then filed a Rule 29.15 motion for post-conviction relief, alleging ineffective
assistance of counsel during the second penalty phase. The trial court denied Taylor's motion,
56a
and the supreme court affirmed. Taylor v. State (Taylor III), 126 S.W.3d 755 (Mo.2004).
In 2005, Taylor filed a petition for writ of habeas corpus under 28 U.S.C. 2254 in federal district court. His petition sought review of various claims, including his allegation that the prosecution made peremptory strikes based on race during the selection of the guilt-phase and penaltyphase juries. The district court denied relief, and this court granted a certificate of appealability
limited to Batson issues.
II.
[1][2][3] Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome
of the case to be tried, Batson established that the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race. 476 U.S. at 89, 106 S.Ct. 1712
(internal quotation omitted). Although States may develop their own procedures for evaluating
the constitutionality of a challenge, Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410,
162 L.Ed.2d 129 (2005), Batson enumerated a three-step process to guide a trial court's review:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a
race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008) (internal quotations and brackets omitted). Within this framework, the burden of persuasion to prove purposeful discrimination rests with the defendant, Johnson, 545 U.S. at 170-71, 125 S.Ct. 2410, who
may rely on all of the circumstances that bear upon the issue of racial animosity to meet it.
Snyder, 128 S.Ct. at 1208; see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162
L.Ed.2d 196 (2005).
[4] Whether a peremptory strike was motivated by race is ultimately a question of fact. See
Miller-El, 545 U.S. at 240, 125 S.Ct. 2317. Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), a determination of a factual issue made by a State court shall be presumed to be correct in a federal habeas proceeding. 28 U.S.C. 2254(e)(1). Thus, a state court's
determination regarding the prosecution's intent may be set aside only if Taylor rebuts the presumption of correctness by clear and convincing *855 evidence. Id.; see Miller-El, 545 U.S. at
240, 125 S.Ct. 2317; Smulls v. Roper, 535 F.3d 853, 861-62, 864 (8th Cir.2008) (en banc); cf.
Rice v. Collins, 546 U.S. 333, 339, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).
Under AEDPA, moreover, a writ of habeas corpus may be granted only in limited circumstances.
If Taylor's Batson claims were adjudicated on the merits in State court proceedings, then he
must show that the adjudication either resulted in a decision that was based on an unreasonable
57a
determination of the facts in light of the evidence presented in the State court proceeding, 28
U.S.C. 2254(d)(2), or resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States. Id. 2254(d)(1).
III.
We first consider Taylor's allegations that the prosecution exercised peremptory strikes based on
race during the selection of the jury that convicted him of first-degree murder. Taylor objects to
the guilt-phase strikes of three black prospective jurors: Antoinette Gordon, Jason Johnson, and
Ray Lovelace.
A.
[5] The State contends that the merits of Taylor's objections to the strikes of Gordon and Johnson
are not properly before us, because the Supreme Court of Missouri held that Taylor had abandoned those objections. Taylor I, 944 S.W.2d at 934. Relying on the flexibility courts have to
develop rules to comply with Batson, Missouri courts have adopted a unitary procedure for the
vindication of Batson claims. State v. Parker, 836 S.W.2d 930, 940 (Mo.1992). Under this procedure, the prosecution must come forward with race-neutral reasons once a timely Batson objection has been raised, regardless of whether the defendant has made a prima facie showing of
purposeful discrimination. Id. at 939-40. If, however, the defendant fails to challenge the prosecution's race-neutral explanation before the venire is discharged, then the objection is considered
waived. See, e.g., id. at 937; State v. Antwine, 743 S.W.2d 51, 64 (Mo.1987); State v. Kelly, 851
S.W.2d 693, 697 (Mo.Ct.App.1993); State v. Jackson, 809 S.W.2d 77, 81 (Mo.Ct.App.1991).
Applying this rule to Taylor, the Supreme Court of Missouri noted that he challenged the prosecution's reasons for striking Gordon and Johnson for the first time on appeal, and concluded that
he had therefore waived his Batson objections. Taylor I, 944 S.W.2d at 934.
Given the supreme court's holding, the State argues that Taylor's constitutional claims regarding
the two strikes are procedurally barred. The State contends that the waiver holding is an independent and adequate state ground that bars federal habeas relief, see Coleman v. Thompson, 501
U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and notes that Taylor did not contest
the adequacy of the state procedural bar in the district court. Alternatively, in the event that we
reach the merits of the Batson claims, the State asserts that the trial court's rulings upholding the
strikes should be treated as adjudications on the merits that are entitled to deference under 28
U.S.C. 2254(d).
Taylor maintains that Missouri's rule requiring defendants to object after the prosecution gives its
race-neutral reasons does not constitute a state ground adequate to preclude federal habeas review. See Lee v. Kemna, 534 U.S. 362, 366, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (holding that
Missouri Supreme Court Rules 24.09 and 24.10, as applied in Lee's case, were not adequate to
bar federal habeas review). According to Taylor, a defendant *856 should be able to preserve a
58a
Batson claim by objecting once, to the strike itself. Taylor contends that Missouri's requirement
of an additional objection conflicts with federal law as articulated in Batson, which requires only
that the trial court decide whether the strike was racially motivated once the prosecution offers
its explanation. He thus argues that Missouri's requirement is inadequate as a procedural bar. He
further argues that because the Supreme Court of Missouri did not address the merits of his Batson claims, we must conduct our review of the merits de novo, rather than under the deferential
standard of 2254(d).
[6] We find it unnecessary to decide whether Missouri's rule is an independent ground adequate
to bar review of Taylor's Batson claims, or whether Taylor should be permitted to challenge the
adequacy of the procedural bar for the first time on appeal. Even assuming that Taylor is correct
that Missouri's rule is inadequate to bar habeas review, and that 2254(d) does not apply, his
claims challenging the strikes of Gordon and Johnson fail. Whatever the force of the state supreme court's waiver holding, the state trial court found that the strikes were race-neutral and
not the product of purposeful discrimination. That determination was not rejected by the state
supreme court, and it is thus entitled to a presumption of correctness as the determination of a
factual issue made by a State court. 28 U.S.C. 2254(e)(1). We conclude based on our examination of the record that Taylor has not rebutted the presumption by clear and convincing evidence, and that he is therefore not entitled to relief.FN2
FN2. In evaluating the constitutionality of the peremptory strikes challenged in Taylor's
petition, we take into account evidence presented by Taylor that does not relate specifically to the proceedings in this case. We do not, however, find the evidence strongly probative of discriminatory purpose by the prosecution in Taylor's case. Taylor presents statistical studies purporting to show racial discrimination in capital cases, but the focus of
the studies is on racial disparities in the imposition of the death penalty generally, not in
the exercise of peremptory challenges specifically. Taylor also presents the affidavit of a
former Jackson County assistant prosecutor stating that during his tenure from 1982 to
1987, the office routinely struck blacks from juries and had to develop specific alternative strategies when this was eventually challenged in court. But that account relates
to a period that ended several years before Taylor's prosecution, and it is disputed by the
deposition testimony of the prosecutor who was in charge of the office during that same
time. He stated that an investigation conducted prior to Batson, which was decided in
1986, showed no pattern of racial discrimination in the office's exercise of peremptory
strikes.
[7] We address first the strike of prospective juror Gordon. When the trial court asked for an explanation of the strike, the prosecution cited Gordon's views on the death penalty. The prosecutor
explained: [Gordon] was struck for the reasons during the individual voir dire that when asked
if she could legally impose the death penalty, no I don't think I could, I can't say and then she
said traditionally I have said no and she stated her reasons were partially religious. The trial
court found that the reasons stated by the prosecutor were race-neutral, and overruled Taylor's
objection. The court's ruling includes an implicit finding that the prosecutor's explanation was
59a
credible, and that the strike was not motivated by purposeful discrimination. See Smulls, 535
F.3d at 860, 863.
The trial court's finding is supported by the trial record, and Taylor has not mustered clear and
convincing evidence to the contrary. The prosecutor accurately characterized the responses
Gordon gave during jury selection. At the beginning of individual voir dire, the prosecution
asked Gordon whether she could legitimately *857 consider imposing a sentence of death given
the right situation. Gordon responded, That's the hard question, and further answered, For
me, I would say no, I don't think I could. Asked if she did not feel under any circumstances or
situation after hearing the evidence that she could legitimately, actually do it, impose a sentence of death on the defendant, Gordon repeated, That's a hard question for me. She then explained:
[T]raditionally I'd say no and to be actually put in a situation, I couldn't say right at this moment
to be honest with you, I couldn't say yes, I couldn't say no. I have traditionally said no. But after weighing the evidence and getting a thorough understanding, I can't tell you what I would
say.
Gordon affirmed that her attitude toward the death penalty was [p]artially a religious based
belief. The prosecutor's characterization of Gordon's responses was thus consistent with the record.
As the questioning continued, Gordon gave different answers to whether she would be able to
consider the death penalty. When defense counsel asked if she was foreclosing the possibility
that given the right case you could impose the death sentence, Gordon stated that she was not
totally ruling that out. She represented that she could fairly consider the death penalty and,
in response to further questioning by the prosecution, maintained that if the circumstances warrant [the death penalty] I could consider it. But even if Gordon seemed more open to considering the death penalty by the time the questioning ended, this evidence does not undermine the
trial court's finding of a nondiscriminatory motive. Gordon's previous answers suggesting reluctance to impose a sentence of death furnished substantial grounds for the trial court to find that
the prosecutor's race-neutral explanation was credible.
Taylor asserts that the prosecution's acceptance of two white prospective jurors, Patricia Rowland and Linda Stockdell, shows that its race-neutral reasons for striking Gordon were pretextual.
Taylor claims that Rowland and Stockdell gave responses that were comparable to Gordon's, and
that the only distinction between them was race. We disagree. Like Gordon, Rowland and Stockdell were asked by the prosecution whether they thought they could legitimately consider imposing the death penalty. But unlike Gordon, whose initial responses were equivocal at best,
Rowland and Stockdell both answered in the affirmative: Rowland by stating, Yes I do, and
Stockdell by stating, Yes, because I do believe in capital punishment.
Taylor maintains that replies by Rowland and Stockdell to other questions showed that their
60a
views on the death penalty were in fact similar to Gordon's. He relies on the fact that both Rowland and Stockdell said the possibility of the death penalty would cause them to hold the prosecution to a higher evidentiary standard than proof beyond a reasonable doubt. It was reasonable
for the state courts, however, to conclude that Rowland and Stockdell did not express opposition
to the death penalty, but rather simply misstated the requisite standard of proof before the matter
was clarified. Both jurors eventually recognized that proof beyond a reasonable doubt was the
correct standard. We do not find the comparisons with Rowland and Stockdell to be persuasive
evidence of a race-based strike, given the differences between their responses and Gordon's to
whether they could consider the death penalty. The peremptory strike of Gordon does not justify
a grant of Taylor's application for relief.
[8] We next consider the strike of prospective juror Johnson. The prosecutor defended that strike
by stating:
*858 [Johnson] first told us in individual voir dire he could not consider the death penalty. He
then went on to say he did not believe in the death penalty. He went on to say that that [sic]
shall not kill. He told us he had a moral conviction, he would never vote for death, he would
always vote for life without parole and then you know, basically those are all of the reasons we
struck him.
The trial court determined that these reasons were race-neutral, and overruled Taylor's objection,
implicitly finding that the strike was not motivated by discriminatory intent. See Smulls, 535
F.3d at 860, 863.
Taylor has not demonstrated with clear and convincing evidence that the trial court's finding of
no discriminatory motive was incorrect. The prosecutor's race-neutral reasons are supported by
the record. Early in the questioning, the trial court asked Johnson if he could seriously consider
both the death penalty and life imprisonment without parole. Johnson answered, No. Asked
which punishment he could not consider, Johnson said, Death. He explained that he did not
believe in giving someone else the death penalty because that's like saying that that [sic] shall
not kill-a view he attributed to both a moral conviction and religious beliefs. The prosecution asked if he was basically saying that he could never consider voting to impose a sentence
of death, to which Johnson replied, Yes.
Taylor argues that the prosecutor misrepresented Johnson's beliefs by disregarding some of
Johnson's other responses. Taylor notes, for example, that when defense counsel asked Johnson
if he could set aside your personal belief about the death penalty and follow the law as the
Judge gives it to you, Johnson said, Yes. And when the prosecution later asked if he would
be able to put aside what you believe in your heart and seriously consider voting to impose a
sentence of death, Johnson also said, Yes. As in Gordon's case, however, it was reasonable
for the trial court to find that the prosecution struck Johnson based on his initial responses, which
suggested considered opposition to the death penalty.
61a
Taylor also argues that the prosecution's reasons for striking Johnson apply just as well to Rowland and Stockdell, the two white prospective jurors with whom Taylor compares Gordon. But
whereas Stockdell said that she believed in capital punishment and Rowland said without any
suggestion of personal opposition that she could consider the death penalty, Johnson stated that
he did not believe in the death penalty based on his moral and religious convictions. Taylor has
not shown by clear and convincing evidence that the state court was incorrect in finding that the
prosecution's strike of Johnson was free from racial bias.
B.
The final guilt-phase Batson objection concerns the prosecution's strike of Lovelace. In the trial
court, Taylor did not immediately challenge the prosecution's race-neutral explanation for this
strike. He waited several days before objecting to the prosecution's reasons. Although the venire
had been discharged by then, the trial court entertained Taylor's challenge. The court determined
that the prosecution's reasons were race-neutral, and implicitly found that the strike was not motivated by purposeful discrimination when it overruled the challenge. See Smulls, 535 F.3d at
860, 863. On appeal, the Supreme Court of Missouri stated the following:
Normally, a defendant must challenge a State's explanation prior to discharge of the venire so
that the trial court can correct the alleged error without having to call a new venire and select a
new jury. Nevertheless, an examination of *859 the prosecutor's reasons for striking Loveland
[sic] indicates that the trial court decision was not clearly erroneous.
Taylor I, 944 S.W.2d at 934 (citation omitted).
[9] The State argues that we are precluded from considering the merits of Taylor's Batson claim
challenging the prosecution's strike of Lovelace. It contends that the supreme court's rejection of
Taylor's claim rested on an independent and adequate state ground-namely, Missouri's rule requiring defendants to challenge the prosecution's race-neutral reasons before the venire is discharged. We read the supreme court's decision differently. The opinion does not state clearly
and expressly that it rests on a state procedural bar, Harris v. Reed, 489 U.S. 255, 263, 109
S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotations omitted), but merely notes that a defendant must [n]ormally challenge the prosecution's reasons before the venire is discharged. The
court then proceeded, [n]evertheless, to address the merits of Taylor's Batson claim. We thus
conclude that Taylor's claim is not procedurally barred.
[10] The trial court found no discrimination in the prosecution's strike of Lovelace, and the Supreme Court of Missouri affirmed that finding. Unless Taylor rebuts by clear and convincing
evidence the presumption that this finding was correct, 28 U.S.C. 2254(e)(1), and shows that
the finding was unreasonable, id. 2254(d)(2), we may not grant him relief. See Miller-El, 545
U.S. at 240, 125 S.Ct. 2317; Smulls, 535 F.3d at 861-62, 864.
The prosecutor offered the following race-neutral explanation for striking Lovelace:
62a
We struck Mr. Lovelace because of the reason we also struck a white juror, Mr. [Matthew] Berridge and also why we struck another juror, ... Rodney Johnson due to his education. He only
has a 10th grade education. The further reason I struck him, ... during general voir dire I didn't
like his attitude. He was very inattentive, I saw him at one time I believe his eyes were closed
.... He was constantly fidgeting, looking down, looking away.
Taylor argues that the prosecutor's comparison of Lovelace with Berridge is unsupported, because Berridge was neither white, as the prosecutor stated, nor uneducated, as the prosecutor implied. Rather, Taylor points out, Berridge was an American Indian who attended audio engineering school. These observations, however, do not undermine the trial court's finding of no discriminatory motive. Whether Berridge was American Indian, as opposed to white, is not significant; what matters is that he was not black. See Miller-El, 545 U.S. at 241, 125 S.Ct. 2317 (explaining that a prosecutor's strike of a black juror should be compared with the prosecutor's
treatment of otherwise-similar nonblack jurors) (emphasis added). That Berridge attended audio engineering school does not necessarily mean that he had more high-school education than
Lovelace, who did not continue past the tenth grade. Taylor has not produced jury questionnaires
or other evidence to refute the prosecutor's assertion about Berridge's lack of education.
[11] Taylor also argues that the prosecution failed to strike two white prospective jurors, Harold
Hageman and Lloyd Jones, whose educational levels were similar to Lovelace's. Hageman and
Jones, however, each had one more year of high school than Lovelace. The prosecution also defended its decision to seat Hageman on the ground that he was well into his 60's as far as age
wise, suggesting that older jurors were more desirable to the prosecution. While the differences
among these jurors are not great, peremptory challenges may turn on slight distinctions, *860 so
long as they are nondiscriminatory. The evidence cited by Taylor does not rebut the presumption
of correctness accorded the trial court's decision to credit the education-related explanation.
Whether or not we presume that the trial court also credited the prosecutor's concern about Lovelace's demeanor, see Snyder, 128 S.Ct. at 1209, Taylor has not shown by clear and convincing
evidence that the trial court's finding of no discriminatory motive was incorrect, or demonstrated
that the finding was unreasonable.
IV.
We next consider Taylor's claims that the prosecution exercised peremptory strikes based on race
during the selection of the jury that sentenced him to death. In the final phase of voir dire, the
prosecution used its peremptory strikes to remove all six remaining black prospective jurors. The
impact of the strikes on the composition of the jury, however, is not dispositive. The important
legal question is whether the prosecution acted with a discriminatory purpose in exercising any
of the strikes.
A.
63a
[12] When asked by the trial court to explain the peremptory strike of prospective principal juror
Ozie Stanley, the prosecutor gave several reasons. The first set related to the effect that serving
on the jury would have on Stanley's employment and income. During voir dire, Stanley had
stated that he was getting called into work as a substitute teacher almost every day, and that he
was the coach of a high school basketball team that had games scheduled for the same week as
the trial. The prosecutor expressed concern about these commitments, noting that Stanley had
made it known there is a hardship for him. The prosecutor explained, We're hitting him in the
wallet, and I just don't want a juror on there who is losing money because they're here.
The second set of reasons related to Stanley's views on the death penalty. The prosecutor drew
attention to one of Stanley's answers on the questionnaire that prospective jurors completed in
the first phase of voir dire. Question 46 asked jurors to circle the statement (or statements) that
most accurately represented their beliefs regarding the death penalty. Jurors were given the option of nine statements, labeled a through i:
a. In a case in which the defendant is convicted and in which in [sic] the death penalty is requested, I will always vote for the death penalty.
b. I am strongly in favor of the death penalty, and would have a difficult time voting against it.
c. I am generally in favor of the death penalty, but I would base my decision to vote on it from
the facts and the law in this case.
d. In a case in which the defendant is convicted and in which the death penalty is requested, I can
vote for the death penalty if it is appropriately based on the facts and the law in the case.
e. I am generally against to [sic] the death penalty, but I believe I can put aside my feelings
against the death penalty and vote for the death penalty if it is called for by the facts and the
law in the case.
f. Although I am philosophically, morally, or religiously against to [sic] the death penalty, I do
believe that I can follow the law that requires me to fully consider the death penalty as one of
two possible options that I may vote for in this case.
g. I am strongly against to [sic] the death penalty, and I will have a difficult time voting for it.
h. I am personally, morally, or religiously against to [sic] the death *861 penalty, and would
never vote for it under any circumstances.
i. None of the above.
Stanley circled statements d, e, and f. The prosecutor explained: Every surviving venireperson who marked F, with the exception of number 7, Nancy Pfeifer, has been struck perempto-
64a
rily by the State. The reason we kept Ms. Pfeifer is her answers on individual [voir dire ] did not
indicate that of an F juror.
The prosecutor also referenced Stanley's answer to a question during individual voir dire.
Stanley was asked about the statements he had circled on the questionnaire, and his answer was:
If I said death penalty, just automatically, am I doing the same thing? You know, if I vote to
give someone a death penalty what shoes am I now wearing? You know, am I in the same boat?
This response, the prosecutor argued, provided additional justification for the strike. The prosecutor said, We took that [response] to mean he identified with [Taylor] on this .... Am I now
putting myself down as a killer for the after-life?
After listening to the prosecutor's explanation, the trial court stated:
I'm going to deny the challenge on Ozie Stanley. I believe there are a variety of race-neutral reasons that exist. This may apply to several of these jurors. But between the questionnaire and
individual questioning, we do have a fairly good understanding as relates to many of these jurors relating to their attitude towards the death penalty.
The court then mentioned two cases: Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83
L.Ed.2d 841 (1985), which reaffirmed that a prospective juror may be excluded for cause if his
opposition to the death penalty will prevent or substantially impair the performance of his duties, id. at 424, 105 S.Ct. 844 (internal quotation omitted); and Morgan v. Illinois, 504 U.S. 719,
112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), which held that a prospective juror may be excluded for
cause if he will automatically vote for the death penalty in every case. Id. at 729, 112 S.Ct.
2222 (emphasis added). The trial court explained that in ruling on challenges for cause earlier in
voir dire, it had attempted to cut a fairly broad swath between the Witt and Morgan excludables. But, the court stated, if someone is clearly towards one end of the spectrum or the other,
I think that in and of itself in most circumstances would certainly be a reason [for a peremptory
strike], and I think [Stanley] would fit that category. The court added, I also think all of his
employment type problems fit that category. After defense counsel reasserted Taylor's objection
to the strike, the trial court made final its ruling.
The Supreme Court of Missouri affirmed. Recognizing the superior vantage point occupied by
the trial judge, who was able to view the panel members; listen to their responses; analyze and
supervise the statements and questions made by the prosecutor during voir dire; and evaluate the
reasons the prosecutor offered for exercising his peremptory challenges as he did, Taylor II, 18
S.W.3d at 375, the court concluded that Taylor failed to establish that the State's justification
for striking [Stanley] was mere pretext. Id. at 371-72.
Taylor claims that the conclusion of the state courts is unsupportable for three reasons. First, he
argues that the prosecutor was not genuinely concerned about Stanley's answer on the questionnaire, because the prosecution chose not to strike Nancy Pfeifer, a white juror who, like Stanley,
marked f on question 46.FN3 But as the *862 prosecutor himself explained, Pfeifer's answers
65a
during individual voir dire showed that statement f did not fully reflect her views on the death
penalty. Although Pfeifer stated that she [p]ersonally ... wish[ed] we didn't have to have [the
death penalty], she also stated, it is a fact that we have to have it, and from my views and my
Christian standpoint it is biblical .... [B]ecause of my Christian belief and the way it has been set
up it has been ruled that if someone takes a life their life has to be taken, depending on the facts
and what's been set forth. Far from being religiously against the death penalty, as her selection of f may have suggested in isolation, Pfeifer thought the death penalty was religiously required in certain circumstances. Stanley, by contrast, expressed reservations about voting for the
death penalty, questioning whether a juror's vote for the punishment would place him in the
same boat as the murderer. Therefore, Pfeifer was not similarly situated to Stanley, and the
prosecution's decision not to strike Pfeifer was not indicative of pretext.
FN3. The State argues that Taylor waived this and other comparisons with nonblack prospective jurors by not raising the comparisons in the trial court. In Taylor II, however, the
Supreme Court of Missouri did not hold that Taylor had procedurally defaulted reliance
on these comparisons. We therefore consider them in light of the evidence before the
state courts. See Snyder, 128 S.Ct. at 1211 n. 2; Miller-El, 545 U.S. at 241 n. 2, 125 S.Ct.
2317.
Other evidence in the record supports the credibility of the prosecution's explanation that Stanley
was struck because he circled f. Of the eight statements listed on question 46, f was the least
favorable to the death penalty marked by any of the thirty-eight prospective jurors on the final
two panels. Six of the thirty-eight marked f, and the prosecutor did not exaggerate when he
said that every one, except Pfeifer, was peremptorily struck by the prosecution. The f jurors
who were struck included two nonblack jurors, one of whom, like Stanley, marked not just f,
but d and e as well. That the prosecution exercised its strikes so consistently against f jurors undermines Taylor's argument that the prosecution's concern about Stanley's selection of f
was pretextual.
Second, Taylor contends that the prosecutor misrepresented Stanley's response to a question during individual voir dire, and that this misrepresentation evinces discriminatory intent. According
to Taylor, the prosecutor described Stanley as saying that he would consider Taylor's viewpoint
before voting for the death penalty, when Stanley said no such thing. But while the prosecutor
did describe Stanley as saying that he would place himself in Taylor's shoes, the best reading of
the transcript is that the prosecutor meant only that Stanley, by asking whether a vote for the
death penalty would put him in the same boat as the defendant, implied that he thought imposition of the death penalty was akin to murder. The prosecutor was concerned not that Stanley
would consider the death penalty from Taylor's perspective, but rather that Stanley thought voting for the death penalty would be putting [him]self down as a killer for the after-life. Taylor's
claim that the prosecutor misrepresented Stanley's views has no merit.
Third, Taylor argues that the prosecutor's reasons relating to Stanley's work commitments were
pretextual because numerous other prospective jurors sought to be excused because of work.
66a
Taylor, however, fails to identify any particular juror with commitments similar to Stanley's who
was not ultimately excused.
Taylor has not presented clear and convincing evidence showing that the prosecution struck
Stanley because of race. The prosecutor accurately characterized Stanley's*863 answers on the
questionnaire and during individual questioning, and persuasively explained why Pfeifer, a white
juror proffered by Taylor as a comparator, was not peremptorily struck. The determination by the
state courts that the prosecution's race-neutral reasons for striking Stanley were not pretextual
was thus not contrary to clear and convincing evidence or unreasonable.
[13] In addition to challenging the factual basis of the state courts' decision, Taylor argues that
the decision involved an unreasonable application of clearly established federal law. He contends
that the Supreme Court of Missouri unreasonably applied Batson by giving too much weight to
whether similarly situated white prospective jurors were challenged by the prosecution. But
while the supreme court did note before rejecting Taylor's claim that he did not assert that there
were white venirepersons on the panel who were similarly situated to [Stanley], Taylor II, 18
S.W.3d at 371, there is no indication that it assigned more importance to the existence of such
comparisons than Batson allows. Taylor has not shown that the supreme court unreasonably applied clearly established federal law.FN4
FN4. Taylor similarly argues that the state supreme court unreasonably applied Batson by
giving too much weight to comparisons in adjudicating the other penalty-phase strikes
challenged in his petition. For the same reasons, we reject this argument in the case of the
other jurors.
B.
Like Stanley, Tracy Johnson circled statement f on question 46. When the prosecution was
asked to provide an explanation for striking Johnson, that was the first reason the prosecutor
gave: Ms. Johnson marked F on the questionnaire. On the subject of Johnson's attitude toward
the death penalty, the prosecutor also noted an answer she gave during individual voir dire, in
which she said: I don't think the death penalty should be imposed on just any type of murder ....
If you have somebody that went out there and just say committed a real heinous crime such as
something Berdella did, something like that, okay, the death penalty should be imposed like
that. The prosecutor explained that Berdella was a mass murderer, very gruesome mass murderer.
In addition to Johnson's views on the death penalty, the prosecution cited various of her affiliations:
She works for Ad Hoc [Group Against Crime, a community-based organization]. She has two
brothers who were convicted themselves of robbery in the first degree. On her questionnaire,
[she said] she was questioned herself about a murder that her nephew was involved in. She
67a
notes she is a friend of [criminal defense attorney] Doc Holliday.

The prosecutor concluded, With that kind of baggage on her, but basically because of the F and
then her answers to that, and her employment with Ad Hoc and her brothers' convictions for robbery, that's why we moved to strike her.
For reasons that are not well explained, the trial court determined that working for Ad Hoc and
knowing Holliday were not race-neutral reasons for a strike. The trial court believed, however,
that [Johnson's] position on the death penalty, and ... having the relative who has been tried [for
murder] in Circuit Court here and also the fact that she knows or has other relatives that were
tried for the crime of robbery ... present sufficient race-neutral reasons. On that basis, the court
preliminarily overruled Taylor's objection. Defense counsel argued that the prosecution did not
strike a similarly situated white juror, Charles Knoderer, who mentioned *864 serial killers
Ted Bundy and John Wayne Gacy during questioning, and who had a brother in prison. Upon
hearing that Knoderer marked d on the questionnaire, however, the trial court made final its
overruling of Taylor's objection, reiterating that a sufficient race-neutral record has been made.
The Supreme Court of Missouri upheld the trial court's decision, stating it was clear that the
prosecutor gave race-neutral reasons with distinctions regarding the white venirepersons and the
black venirepersons struck. Taylor II, 18 S.W.3d at 372. When it said that the prosecutor gave
race-neutral reasons for striking Johnson, the supreme court necessarily rejected the trial court's
assertion that Johnson's employment with Ad Hoc and her friendship with Holliday were not
race-neutral reasons. Elsewhere in its opinion, the court explained that [t]he prosecutor presented to the [trial] court that Mr. Holliday had been prosecuted by the Jackson County prosecutor's office, which was a race-neutral reason. Id. at 371 n. 8. The supreme court did not elaborate on its conclusion regarding employment with Ad Hoc, but it is evident that the trial court
misapplied the second step of the Batson analysis on this point, as there is no suggestion that
employment with this organization is peculiar to any race. Purkett v. Elem, 514 U.S. 765, 769,
115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (internal quotation omitted).
Taylor asserts that the state supreme court's decision involved an unreasonable application of
clearly established federal law, 28 U.S.C. 2254(d)(1), because the court did not apply a proper
mixed-motive analysis to the strike of Johnson. Citing our court's decision in United States v.
Darden, 70 F.3d 1507, 1531 (8th Cir.1995), Taylor contends that the supreme court unreasonably applied the law by failing to shift the burden of proof to the prosecution to show that it would
have struck Johnson even without consideration of reasons that were not race-neutral. As the supreme court found that all of the prosecution's reasons were race-neutral, however, there was no
need for that court to consider whether and how mixed-motive analysis should apply to a Batson
challenge.FN5
FN5. In Snyder, the Supreme Court held that when discriminatory intent is a substantial
or motivating factor for a peremptory strike, the prosecution must show, at a minimum,
that the impermissible motive was not determinative before the strike can be sustained.
68a
128 S.Ct. at 1212. Given the state supreme court's finding that the prosecutor's stated reasons for striking Johnson were race-neutral, we need not determine what sort of mixedmotive analysis, if any, was embodied in clearly established federal law at the time of
Taylor's trial. Compare, e.g., Kesser v. Cambra, 465 F.3d 351, 372-75 (9th Cir.2006) (en
banc) (Wardlaw, J., concurring), with id. at 381-84 (Rymer, J., dissenting).
[14] On the question whether the determination of the state courts that the prosecutor gave sufficient race-neutral reasons to strike Johnson was incorrect and unreasonable, we conclude that
Taylor has not shown an entitlement to relief. The prosecutor stated that Johnson was struck basically because of the F and then her answers to that, and her employment with Ad Hoc and her
brothers' convictions for robbery. Taylor argued in the trial court that the prosecutor's reasons
relating to Johnson's views on the death penalty were pretextual, comparing Johnson with Knoderer. But although both Johnson and Knoderer invoked the names of serial killers during individual questioning, Johnson marked f on the questionnaire-registering philosophical, moral, or
religious opposition to the death penalty-while Knoderer marked d. The prosecution struck
every f juror on the final two panels except Nancy Pfeifer, whose answers*865 to other questions showed her to be more accepting of the death penalty than an f answer implied. It was
not incorrect or unreasonable for the state courts to conclude that Johnson's answer on the questionnaire, together with her responses about the death penalty during individual questioning and
her relationship with family members involved in serious crimes, led the prosecution to strike
her.FN6
FN6. Taylor argues that the prosecutor's assertion that Johnson was acquainted with
Holliday is unsupported by the record. Whether or not the prosecutor was mistaken about
that point, the determination of the state courts was not unreasonable or contrary to clear
and convincing evidence.
C.
[15] Edwina Kinsey was a prospective principal juror who marked e on the questionnaire. Addressing the trial court, the prosecutor gave the following explanation for striking her:
[D]uring the death penalty qualification, your initial question is what are your views on the death
penalty. She, without hesitation, said, Personally, I'm opposed to the death penalty. That's the
reason we're striking Ms. Kinsey. Also, it's a belief she has held for some time is what she
stated to the Court.
The trial court commented that its notes reflect[ed] that she was clearly a qualified juror but
definitely much closer to the Witt end than to the Morgan end. The court determined that the
prosecutor's justification was race-neutral, and preliminarily overruled Taylor's objection to the
strike.
Defense counsel then compared Kinsey with white prospective juror David Robinson, arguing
69a
that while both circled e and expressed personal opposition to the death penalty, the prosecution struck only Kinsey. The prosecutor responded that there was a distinction between these
two. He explained that the two jurors responded differently when asked during individual voir
dire about their feelings toward the death penalty: whereas the first words right out of
[Kinsey's] mouth were that she was personally against the death penalty, Robinson start[ed]
off by stating that the death penalty had pros and cons. The trial court concluded that the
prosecution had presented sufficient race-neutral reasons, and made final its decision overruling Taylor's objection.FN7 The Supreme Court of Missouri affirmed, again on the basis that it was
clear that the prosecutor gave race-neutral reasons with distinctions regarding the white venirepersons and the black venirepersons struck. Taylor II, 18 S.W.3d at 372.
FN7. Taylor contends that the trial court misapplied Batson by concluding its analysis
once it determined that the prosecutor offered race-neutral reasons, without proceeding to
evaluate whether those reasons were credible. Our precedent holds, however, that an
evaluation of credibility was implicit in the trial court's determination that the State has
presented sufficient race-neutral reasons and its decision to overrule the Batson challenge as it relates to Ms. Kinsey. See Smulls, 535 F.3d at 860, 863.
Taylor maintains that the prosecution struck Kinsey because of her race. He relies on the fact that
the prosecution did not strike two white prospective jurors whom he deems comparable to
Kinsey. One is Robinson. On the questionnaire, Robinson marked e. When asked during individual voir dire what do you feel about the death penalty, Robinson answered, I don't know.
There are pros and cons about it. He continued, I can't really answer that question right now. It
just-how would I put that? After the trial court assured him, [y]ou can put it any way you want
to put it, Robinson said, In my beliefs I don't believe in it. In the law part of it I do believe in it
.... So I've got a split right there. He said, *866 I'm just right in the middle, and rated himself a
five on a scale of one to ten between life without parole and the death penalty.
Taylor argues that Robinson and Kinsey were similarly situated because both marked e and
expressed comparable views on the death penalty. Taylor points out that Kinsey stated in followup questioning that she could consider imposing the death penalty, that she would not always
vote for life imprisonment, and that as a juror she would have to go along with the death penalty if it was [her] decision. According to Taylor, Kinsey ultimately adopted the same attitude
toward the death penalty as Robinson-that is, both said essentially that they were capable of considering the death penalty under the law, although they were opposed to it in their personal beliefs.
Notwithstanding Kinsey's responses to follow-up questioning, the record still permits the finding
of the state courts that the prosecution struck Kinsey for race-neutral reasons. When Kinsey was
asked during individual voir dire how she felt about the death penalty, her immediate responses
were noticeably different from Robinson's. Unlike Robinson, who acknowledged that the death
penalty had pros and cons, Kinsey stated unequivocally, I personally am against the death
penalty. In further contrast to Robinson-who expressed his views tentatively, stating at one
70a
point, I don't know, and at another, I can't really answer that question right now-Kinsey gave
reason to believe that her feelings were clear and settled. Indeed, she made known that she had
been personally opposed to the death penalty for some time. Although Kinsey eventually said
that she could consider the death penalty, she never acknowledged that the death penalty had any
pros, as Robinson did.
Even if we assume, moreover, that Kinsey's later responses expressed views similar to Robinson's, it was not unreasonable for the state courts to credit the prosecutor's perception of a raceneutral distinction between these jurors based on their initial answers. Even if two jurors ultimately make comparable statements after the process of questioning and rehabilitation by counsel, the prosecution is entitled to take into account the entire range of statements, including the
initial positions stated by the jurors. Here, the prosecutor noted that Robinson start[ed] off by
stating that the death penalty had pros and cons, whereas the first words right out of
[Kinsey's] mouth were that she was personally against the death penalty. The prosecution permissibly favored Robinson over Kinsey, because the difference in their initial responses may
have reflected the relative depth of their feelings toward the death penalty, which in turn could
have influenced deliberations over the appropriate punishment. Attorneys often make distinctions between prospective jurors based on instincts formed by limited information, and substantial grounds for distinguishing among jurors are not always available. See Miller-El, 545 U.S. at
252, 125 S.Ct. 2317. Even fine race-neutral distinctions between them are a permissible basis for
strikes, and the state courts reasonably credited the prosecutor's articulated distinction between
Kinsey and Robinson.
Taylor also compares Kinsey with Samantha Edmondson, a white prospective juror who circled
d on the questionnaire. During individual voir dire, Edmondson was asked what are your feelings about the death penalty, and her response was I think I generally believe in that, but the
more I think about actually imposing that, I think I could, based on facts and things like that, but
I think it would have an unfortunate effect on me. Edmondson *867 clarified that she thought
she would experience an unfortunate effect [e]ither way, regardless of whether she voted for
the death penalty or life imprisonment. According to Taylor, Kinsey's responses during individual questioning were substantially similar to Edmondson's. But when asked exactly the same
question-What are your feelings about the death penalty?-Kinsey gave a completely different
answer: I personally am against the death penalty. The prosecution's decision to strike Kinsey
but not Edmondson thus does not give rise to an inference of discriminatory intent.
On the record as a whole, Taylor has not presented clear and convincing evidence to rebut the
presumptive correctness of the state-court determination that the prosecution's race-neutral reasons for striking Kinsey were credible. Nor has he demonstrated that that state-court determination was unreasonable. Because the record does not show that there was no permissible alternative but to reject the prosecutor's race-neutral justifications, Collins, 546 U.S. at 341, 126 S.Ct.
969, we reject Taylor's claim that the strike of Kinsey entitles him to relief.
D.
71a
[16] Bonnye Brown was the fourth and final black prospective principal juror peremptorily
struck by the prosecution. In defending the strike, the prosecutor pointed to Brown's views on the
death penalty: Ms. Brown, during individual voir dire, stated that, My first choice is life without parole. Very, very extreme to give the death penalty. She was definite on that. The prosecutor also cited one of Brown's responses on the questionnaire. In answer to a question asking
whether she had ever witnessed an act of serious violence or abuse, Brown had written, no
but I has [sic] seen the results of someone being abused. The prosecutor said that he locked
onto this answer because he anticipated the defense to rely on the abuse Taylor experienced as a
child as a mitigating circumstance at sentencing.
The trial court first found race-neutral both of the prosecution's stated reasons for striking
Brown-her feelings toward the death penalty and her witnessing the results of abuse. After the
court preliminarily overruled Taylor's objection to the strike, defense counsel argued that the
prosecution's reasons applied just as well to white prospective jurors whom the prosecution did
not strike. The trial court considered those comparisons, and told defense counsel, You've convinced me this abuse thing is not a particularly persuasive reason to strike this woman. The
court explained, I'm not saying her abuse comments aren't race-neutral or capable of consideration, but it's clear to me there are a variety of folks that said equally as poignant statements as
her.
The trial court rejected the Batson challenge after finding credible the prosecution's other reason
for striking Brown. Using the transcript of individual voir dire to refresh its recollection of
Brown's answers, the trial court noted, She clearly had some pretty definite statements that she
had some severe hesitations about the death penalty. I had to rehabilitate her and the like. Although Brown marked c and d on the questionnaire, the trial court described her li[v]e performance during questioning as probably an F, G, or F, something like that. Accordingly, the
trial court made final its decision to sustain the strike.
In resolving this challenge, the trial court remarked that it was personally troublesome to have
a death penalty case with a black defendant and an all white jury, but concluded that a raceneutral reason for the strike had been established. The court reasoned that the only way to disallow the strike would be to not follow *868 what the law is. The Supreme Court of Missouri
affirmed, noting the trial court's findings that the prosecution had not struck white jurors who
had witnessed abuse, but that Brown had shown hesitation toward voting for the death penalty.
Taylor II, 18 S.W.3d at 372.
Taylor contends that the record does not support the trial court's finding that the prosecution
struck Brown because of her views on the death penalty. Taylor concedes that Brown stated during individual questioning that her first choice would always be life without parole. Taylor
maintains, however, that the prosecutor mischaracterized Brown's statement by implying that it
reflected reservations about the death penalty. According to Taylor, when Brown said that her
first choice would always be life without parole, she meant merely that in accordance with
72a
Missouri law, she would not vote for the death penalty unless the prosecution proved beyond a
reasonable doubt at least one of the statutory aggravating circumstances. See Mo.Rev.Stat.
565.030.4. Taylor argues that the prosecutor's mischaracterization of Brown's statement undermines the trial court's finding that the prosecutor's basis for striking Brown was credible.
Brown's statement, however, is fairly understood to capture more than the prosecution's burden
of proof at sentencing. Under Missouri law, jurors have discretion to impose a sentence of life
imprisonment without parole, even when the prosecution proves one of the statutory aggravating
circumstances. See id. It was certainly reasonable for the prosecutor to treat Brown's statement
that her first choice would always be life without parole as an indication of how she would exercise that discretion. Indeed, that statement was not the only one she made suggesting that she
would be reluctant to impose the death penalty. As the prosecutor noted, Brown also stated that
she would vote for the death penalty only in a very, very extreme case. She emphasized that
she would always lean towards life unless it is that very extreme situation, and that death
would be [her] last choice. The trial court agreed with the prosecutor that Brown made some
pretty definite statements that she had some severe hesitations about the death penalty. That the
prosecutor cited Brown's statement about her first choice as an example of her views on the
death penalty is thus not indicative of pretext.
Taylor has not presented clear and convincing evidence that the prosecution's race-neutral reason
relating to Brown's views on the death penalty was pretextual, or shown that the decision of the
state courts was based on an unreasonable determination of the facts. He is therefore not entitled
to relief on this claim.
E.
Taylor's remaining arguments concern the prosecution's use of peremptory strikes to remove two
black women who were prospective alternate jurors. Our court held in Carter v. Kemna, 255
F.3d 589 (8th Cir.2001), that a state court did not unreasonably apply clearly established federal
law by allowing a judgment to stand, despite the improper exclusion of an alternate juror, where
no alternate was called to deliberate on the verdict. Id. at 592. We reasoned that lower courts
disagree about whether Batson requires reversal of a conviction when an alternate juror is improperly excluded, but no alternate joins the deliberating jury, id., and the Supreme Court had
not decided whether harmless-error analysis is applicable in that situation. In Taylor's case, none
of the alternate jurors in the second penalty phase joined the deliberating jury. Carter would thus
seem to resolve Taylor's claims for relief based on peremptory strikes of prospective alternate
jurors. The State, *869 however, does not raise this point. Because we conclude that the factual
determinations of the state courts are otherwise entitled to stand, we need not give further consideration to the possible applicability of Carter.
[17] The prosecution exercised one of its two peremptory strikes against prospective alternates to
remove Latricia Wilson. Following defense counsel's objection, the prosecutor explained:
73a
Wilson ... marked F on her questionnaire. Only one of the 38 jurors who marked F survived our
strikes for our peremptory challenges, and that's [Nancy Pfeifer], and that's because her answers on individual [voir dire ], in my opinion, made her more of a C or B type juror according
to the questionnaire. Also, [Wilson's] answers, religiously she said she would be very hesitant.
Recalling Wilson's answers during individual questioning, the trial court stated: I think any objective view of her testimony is that she clearly had reservations about the death penalty in my
view, not such that she could be stricken for cause, but she did have such reservations. And I
thought they were clearly noticeable. The trial court determined that the prosecution's reasons
for striking Wilson were race-neutral, and preliminarily overruled Taylor's objection. After defense counsel reasserted the objection without further argument, the trial court made its ruling
final. The Supreme Court of Missouri affirmed the trial court's decision, concluding that Taylor
failed to establish that the State's justification for striking [Wilson] was mere pretext. Taylor II,
18 S.W.3d at 371-72.
In challenging this conclusion, Taylor compares Wilson with David Robinson, a white juror who
was not struck by the prosecution, but who Taylor contends had similar reservations about the
death penalty. We are not convinced that the comparison with Robinson demonstrates that the
determination of the state courts was incorrect and unreasonable. Wilson marked f on the questionnaire. Consistent with that answer, Wilson expressed religious opposition to the death penalty during individual voir dire. She said, religiously I don't think that the death penalty is a
good form of punishment, and thought that her religious beliefs might well affect her weighing
of the case. Robinson, by contrast, marked e on the questionnaire. During individual questioning about the death penalty, Robinson portrayed himself as a middle-of-the-road juror: In my
beliefs I don't believe in it. In the law part of it I do believe in it .... So I've got a split right here.
He stated firmly that he could separate his personal beliefs from the law, expressing no doubt in
[his] mind that he could consider both punishment options. On this record, it was reasonable for
the state courts to believe that the prosecution distinguished Wilson from Robinson based on
these answers. Accordingly, we conclude that the state-court determination that the prosecution's
race-neutral reasons for striking Wilson were credible was neither incorrect nor unreasonable.
F.
[18] Cecilia Smith was the other prospective alternate whom the prosecution peremptorily
struck. Of the eight prospective alternates, the prosecutor explained, we struck the two who
marked lowest down towards leaning towards life without parole: Wilson, who marked f, and
Smith, who marked D and E. The prosecutor gave as additional reasons for striking Smith that
she knew Charles Brown, a criminal defense attorney, and that she stated during individual voir
dire that she would lean towards life without parole.
The trial court determined that the prosecution's reasons were race-neutral *870 and made a preliminary ruling denying Taylor's Batson challenge. Defense counsel compared Smith with Jennifer Tartaglia, a white juror who chose e and knew a criminal defense attorney, but who was not
74a
struck by the prosecution. The prosecutor disputed the significance of the comparison, pointing
out that he could not have struck Tartaglia instead of Smith because Tartaglia was on a different
panel, among the prospective principal jurors. After considering these arguments, the trial court
issued a final ruling denying Taylor's challenge. That ruling was upheld by the Supreme Court of
Missouri, which said it was clear that the prosecutor gave race-neutral reasons with distinctions
regarding the white venirepersons and the black venirepersons struck. Taylor II, 18 S.W.3d at
372.
Taylor makes two arguments in support of setting aside the state-court determination that the
prosecution's strike of Smith was not racially motivated. His first contention is that the prosecutor's explanation for striking Smith fails on its own terms, because Smith was not one of two prospective alternates who seemed least inclined to vote for the death penalty. Based on the questionnaire, Taylor contends, the prosecution should have struck a white alternate named Rebecca
Hadjian instead of Smith. In answer to question 46, Hadjian declined to choose any of the eight
representative statements about the death penalty. Instead, she marked i, for None of the
above, and wrote as an explanation, I am bias [sic], depends on the type of crime and the conviction. Taylor argues that by bias, Hadjian actually meant unbiased, and this does seem to
be the most likely meaning in view of Hadjian's statements during individual voir dire. But we
do not see how Hadjian's answer shows that she was less willing to impose the death penalty
than Smith. If Hadjian was unbiased toward the death penalty, then her views essentially
tracked statement d, which expressed no opinion in favor of or against the death penalty. All
the other prospective alternates, except Wilson, marked d. But in addition to d, Smith
marked e, indicating that she was generally against the death penalty. That answer made
Smith appear less inclined to vote for the death penalty than every other prospective alternate
except Wilson. The state courts thus had a sound basis to credit the prosecutor's assertion that it
struck the two who marked lowest down on the questionnaire, regardless of race.
Taylor's other contention is that knowing Charles Brown was not a credible reason for striking
Smith, given that the prosecution did not strike Tartaglia and Pamela Andersen, two white jurors
who also knew criminal defense attorneys. These comparisons do not persuasively undermine
the credibility of the prosecution's race-neutral explanation for striking Smith. That Smith knew
a criminal defense attorney was only a secondary factor in the prosecution's decision to strike
her. The determinative factor, according to the prosecutor, was that she marked d and e on
the questionnaire, and testified that she would lean toward life without parole. In addition, Tartaglia and Andersen were prospective principal jurors, and the prosecution could not have challenged them instead of Smith. We therefore conclude that the state-court finding of no purposeful discrimination in the prosecution's strike of Smith was not incorrect or unreasonable.
***
For the foregoing reasons, the judgment of the district court is affirmed.
C.A.8 (Mo.),2009.
75a
UNITED STATES COURT OF APPEALS

No: 14-3315
Leon Taylor
Appellant
v.
Donald Roper
Appellee
______________________________________________________________________________
Appeal from U.S. District Court for the Western District of Missouri - Kansas City
(4:04-cv-08002-FJG)
______________________________________________________________________________
ORDER
The petition for rehearing en banc has been considered and is denied.
Judge Loken and Judge Benton did not participate in the consideration or disposition of
this matter.
The petition for rehearing by the panel is also denied.
The motion for stay of execution is denied as moot.
November 17, 2014
Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
76a
Appellate Case: 14-3315
Page: 1
Date Filed: 11/17/2014 Entry ID: 4217047

Supp Pet Cert

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Supp Pet Cert

Uploaded by

Copyright:

Available Formats

No.

ON PETITION FOR WRIT OF CERTIORARI TO

Elizabeth Unger Carlyle

Counsel for Petitioner

1. Whether Mr. Taylor is entitled to a certificate of appealability when the

Batson v. Kentucky, 476 U.S. 79 (1986) ............................................................. 9

PETITION FOR WRIT OF CERTIORARI TO

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Amend. XIV, Section 1.

(b) (1) A claim presented in a second or successive habeas corpus application

(B) A motion in the court of appeals for an order authorizing the

Supreme Court of the United States on an appeal or review by a writ of

(C) the date on which the constitutional right asserted was

United States, or to test the validity of such persons detention pending

STATEMENT OF THE CASE

sentencing. Despite this, the judge imposed a sentence of death as permitted

failure of the Missouri Supreme Court to commute Mr. Taylors sentence to

REASONS FOR GRANTING THE WRIT

Magwood required that the habeas petition not be considered successive.

Wentzell to require the application of Magwood even where, as in this case

Williams, ECF No. 2:12-cv-00952 (See Exhibit A to Application for Certificate

Magwood has explicitly rejected the notion that 2244(b) applies

to individual claims. 130 S. Ct. at 2798. Section 2244(b) applies to

II. BY ITS DISPARATE TREATMENT OF IDENTICALLY SITUATED

State v. Whitfield, 107 S.W.3d 253, 270 (Mo. banc 2003).

The Missouri Supreme Court stated, In cases where a defendant is

litigants from being treated in a needlessly disparate manner, simply because

ELIZABETH UNGER CARLYLE

Counsel for Petitioner

UNITED STATES COURT OF APPEALS

Order Entered at the Direction of the Court:

Appellate Case: 14-3315

Date Filed: 11/12/2014 Entry ID: 4215305

UNITED STATES DISTRICT COURT FOR THE

Case No. 04-8002-CV-W-FJG

State v. Whitfield, 107 S.W.3d 253, 265-69 (Mo. banc 2003).

Background and Procedural History

suggested a gas station in Independence where only one

ordered the sentences be served consecutively to each other

On remand, a new penalty phase was conducted. The

Second or Successive Application

Additionally, before a second or

Review of the Merits of Petitioners Claim

disparate treatment is a false premise. The Court previously found as follows as to

Moreover, even if this Court were to consider this claim

Whitfield. Petitioners Supplemental Petition (Doc. No. 84) is DENIED.

In order for a certificate of

Date: September 12, 2014

S/ FERNANDO J. GAITAN, JR.

Supreme Court of Missouri,

not ordering disclosure of Willie and Tina Owens' arrest records.

FN1. All references are to RSMo 1994 unless otherwise indicated.

unconstitutionally shifted the State's burden of proof. Instruction 5 stated:

"passion, prejudice, or any other arbitrary factor." Sec. 565.035.3(1).

have the chance to do this to someone else."

ROBERTSON, J., dissents in separate opinion filed.

ROBERTSON, Judge, dissenting.

Supreme Court of Missouri,

*368 Melinda K. Pendergraph, Asst. Public Defender, Columbia, for Appellant.

MICHAEL A. WOLFF, Judge.

explanation to the state, as in Batson.

discussion on its reasons for denying the Batson challenges.

FN14. Taylor's brief addressed an eighth amendment violation in passing, noting

To establish an equal protection violation, Taylor directs this Court to statistics