Missouri, M-O, 1854-1996, Undated

Online content

! Be
a by WAYNE T. WALKER

F rom their raunchy actions, the Missing Links were aptly named. The hom«
base of the motorcycle club was in Belton, a southern suburb of Kansas City
Missouri. Most of their nefarious activities and cruising were restricted tc
southern Jackson and Cass counties. Varying reports on their size rangec
from 10 to 30 members, sometimes traveling in full pack and other times ir

bands of three and five. J

Stephen Gardner, 24, was the acknow-
ledged leader of the Missing Links, with
George ‘‘Tiny’’ Mercer being next in
command as well as gang strongarm man.

Being a giant of a man, Tiny Mercer
had no problems convincing anyone he
was the controlling figure in a controver-
sial situation. The 34-year-old biker wore
his hair long and unkempt, with his facial
features camouflaged behind a full-grown
beard and heavy mustache.

Trouble was second nature to the Mis-
sing Links, and various members were
constantly being arrested on assault and
robbery charges in recent years.

On July 25, 1978, Mercerand four other
Missing Links allegedly invaded a house
at 7403 E. 108th Terrace in Kansas City,
assaulted two men and kidnapped a
17-year-old girl. The five men allegedly
drove the girl in a pickup toa field inCass

County, where each man raped and
sodomized her. ; % ;

Putting her in the back of the pickup, ih
her attackers drove back to Kansas City. Attorney Sidney Willens i: 4 to
While the trip was in progress Mercer protect his client from rete: tion
raped her again. Police said that after ar- by the murderers.
riving in Kansas City, she was taken to-a
house and a man there forced his atten-
tions on her.

When she was returned to her own
home, Mercer warned her that if she told which he was ordered held fo: al.
the authorities she was dead. By August 29, Mercer was ot = bond

The crime was reported and soon four _ and living at his home in Belto. _{e had
Missing Links members were arrested, John Allen Campbell babys: ag his
including Mercer. About five weeks later | l-year-old daughter, Robe: Dawn
the house from which the girl had been Mercer, after 4:30 p.m. whens! irrived
kidnapped was engulfed in flames by a from school. On this particular. ning, it
night prowler. It was believed to have was already getting late when \ er cal-
been set in retaliation. A young mother led on the telephone.
and her 18-month-old daughter perished ‘‘Hey, Campbell,’’ Merc _ said,
in the fire. “gonna be late tonight. Hav. a few

Mercer was arraigned before Magis- drinks with my boss.”’
trate Judge Robert Iannone on charges of About 12:30 a.m., Merce: rrived
Jape, sodomy and kidnapping in connec- homewithafriend,DavidGee. _e three
tion with the 17-year-old girl. A prelimi- men sat around drinking beer !\ several
nary hearing was held on August 7 at minutés, then were joined by tephen

Gardner and Karen A. Kex a —a
shapely, 22-year-old blonde. Fk. . time,
the group sat around drinking ar alking.
Without saying anything, Mere got up
and left the room. When he rei. ied, he
The Blue Seven Lounge, where was carrying a sawed-off sho
the victim worked as a waitress Walking around behind Ms. -aton’s
and where the gang hung out. chair, Mercer tappedheronthe, .dwith
(continued on next pa
15

RS RT TARE RO
LLC TCS NaI

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MERCER,

Long-haired suspects George “Tiny” Mercer (left photo) and Steph
Gardner are escorted by lawmen to a preliminary hearing.

Derecne A/LEes Ma GASHWE

Muech L95O

the
frig
me!
figt

her
5

was
She
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jerk
tow
A
her
at ¢
don
mat
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yell
Tin
A

1 muzzle. Puzzled and instantly
ved at the sight of the twin barrels
og her, she stared up at the hulking

' your ass upstairs."’ Mercer told

looked at him in disbelief, but it
vious that Mercer was not joking.
ned to the others for assistance.
’ moved or said a word. Mercer
her out of her chair and shoved her
the stairway.

fercer half carried, half dragged
‘the stairs, Ms. Keaton yelled back
dner: *‘Steve, please help me...
ct him do this to me. What’s the ,
with you?”

!ner ignored her pleas. Instead he
up at Mercer, ‘‘Happy birthday,

he top of the stairs, Mercer ripped

off her dress and threw it downstairs.
Eventually the screaming and yelling be-
came weaker, finally subsiding al-
together. Later, Mercer came back
downstairs minus his clothes to take a
shower.

**She’s all yours,” he said.

“Next,” said Gardner, with a laugh.
He went upstairs, and after a short in-
terim he yelled for Gee to come up. Gee
hadn't been upstairs long before Gardner
yelled for Mercer to come up. It seemed
that Gee wanted her to perform oral sex,
and she was refusing. Mercer forced her
to accommodate Gee. When the three
men were through with her, they came
downstairs to hit the beer again.

Mercer looked at Campbell. ‘What the
hell.is the matter with you? You a faggot

‘or something? Get on upstairs and do

your thing. We just got her broke in good

of:

for you.” He thought this was uproari-
ously funny.

To avoid any flap, Campbell went on
up to a bedroom where Ms. Keaton was
lying nude on a bed. He stretched out
beside her but didn’t touch her.

“I’m sorry you got involved in this kind
of a thing,’* Campbell told her.

Ms. Keaton put her arms around him,
and began to cry. Campbell consoled her
and told her to play along with them,
thinking no harm would come to her after
she was forced to commit sex acts with
the men.

“What are they going to do to me
next?’* she asked.

“Maybe nothing. But whatever, play
along with Tiny. Tell him you would like
fo see him again sometime.”

When Campbell went back downstairs,
Gardner and Gee were in the process of

The victim thought she was going to the house just to have a
few beers. Instead, she became a birthday gift to a homicidal
maniac who snuffed her life out like a candle flame.

The house in Belton, where Karen Keaton
was sexually assaulted and slain.

Aa nar nt AB t

Coroner James Bridgens said the decom-
posed corpse was “one of the worst I’ve

ever seen.”

leaving. Mercer asked Gardner, **What ~

about the broad? What do you want me to
do with her?” :

Going out the door, Gardner called’
back, ‘*Kill her.”’

Mercer answered softly, ‘‘It will be
done, brother.”’ ;

Campbell thought they were jesting
one another, and went to sleep in a down-
stairs bedroom.

Sometime later Campbell was
awakened by Mercer's loud yelling from
upstairs, wanting Campbell to help him
do something. Campbell was stunned
when he walked into the bedroom oc-
cupied by Ms. Keaton. He found Mercer
straddling Ms. Keaton on the bed with his
hands around her throat.

Screaming at Campbell, Mercer told
him to take her pulse.

“Is she dead? Well, is she dead?”’

where the corpse of Karen
Keaton was found, one month
after her killing.

’
’

Campbell answered, hoarsely, ‘‘No.
She’s not dead, she has a beat.”

Mercer doubled up his right fist and
drove it into the once pretty features,
crushing bone and flesh together. Then
his hands went back around her neck.

‘**This is a hard bitch to die,’’ Mercer
grunted. ‘*Take her pulse. Tell me when
it quits.”

This time there was no pulse. Karen

Keaton was dead.

Climbing off the bed, Mercer m
the body to the floor, threw the shee
blankets into a washing machine,
covered the body with another s
Mercer ordered Campbell to ope:
tailgate to Campbell’s pickup and h:
the body into the truck bed. After g¢

(continued on page 48)

od em.

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Merce)

the othe
the new :
the new:

In hi
Karen v

y went to the hospital, He said

-emed upset that Gardner
ne,

ectives sensed that Campbell

ease during the interview.
d him if he was withholding
on. Campbell flushed and
set, but he shook his head and

e didn’t know anything about

>ton,.
cers were not convinced. The
‘hat Campbell knew what
‘o the young woman.

ember 22nd the officers were
an who worked with Gardner
ing project that he overheard
‘lla friend “they can’t prove
nless they find the body.”
vade the statement, he said,
iend said, “You were the last
‘een with her.”

it same day the detectives
rmission from Campbell to
pickup truck. Campbell hesi-
inally agreed to let them pro-
ehicle. The truck was vac-
r hair and blood samples.
seemed genuinely concerned
‘icers thought there might be
n his truck relating to the
rl, .

asked if anyone else ever
uck. Campbell said that both
| Gardner had used it on sev-
ons. The detectives were im-
y Campbell’s nervous be-
ey believed he was on the
‘acking.

‘mber 29th their hunch that
veld the key to solving the
stery proved accurate. The
‘re contacted by Campbell’s
‘ho said Campbell wanted to
vith them but feared for his
Campbell was assured he
laced in the witness protec-
‘m, he agreed to lead police to
ody and give them a full
about her murder!
o'clock that afternoon, the
y decomposed body of Karen
: found in a wooded area less
‘t from State Line Road near
red Seventh Street in‘south
sunty, Kansas. Positive iden-
as made from dental records.
4:48 p.m. Gardner was ar-

the D.T. Lounge, a bar in’

Lenexa, a Kansas City sub-
‘er initially resisted arrest
‘d minor head injuries in a

) police. He was taken to the

vunty Jail in Olathe to await
1 to Cass County.

already being held in jail on
rape charge, was advised of

gation against him. He took
oically,

‘tatement Campbell said
taken to Mercer’s house in

Belton by Gardner after she left the
Blue Seven Lounge the night of August
30th. Campbell had been at the house
since late afternoon. Mercer and
another man arrived around 12:30 and
minutes later Gardner and Miss Keeton
walked in.

Police declined to release details of
what occurred at the house but acknow-
ledged that Karen was murdered there
and her body taken across the state line
into Kansas, where it was dumped in
the wooded area off State Line. ;

They said the young woman appa-

rently was offered to Mercer sexually as
a birthday present by Gardner. When
she resisted, she was raped by- Mercer
and the others, then killed. The‘murder
occurred in an upstairs bedroom.
. Joseph H. Hamilton, Cass County
Prosecuting Attorney, charged Mercer
and Gardner with capital murder in the
young woman’s slaying which meant,
upon conviction, that they could be sen-
tenced to death in the gas chamber.

An autopsy by Dr. James Bridgens,
Johnson County Coroner, failed to es-
tablish a cause of death or whether the
girl was sexually assaulted.

“Tt (the body) was one of the worst I’ve
seen and I’ve seen quite a few,”
Bridgens said in describing the condi-
tion of the body when it was discovered.

The sordid details of the brutal slay-
ing were made public for the first time
on October 12, 1978, at a preliminary
hearing for Mercer and Gardner. ‘

The key witness, Campbell, testified
he was present and watched as Mercer
strangled Miss Keeton as she lay nude
on a bed in Mercer’s house following a
gang rape. Before she was murdered she
was forced at gunpoint to submit sexu-
ally to the others, Campbell said.

After the rapes, Mercer asked Gard-
ner what he should do about Miss
Keeton. Gardner allegedly replied,
“Kill her.” Campbell said he thought
Gardner was kidding when he
suggested killing the girl, but Mercer
obviously took him seriously.

“It'll be done, brother,” he replied.

Campbell was asked why he didn’t
attempt to keep Tiny Mercer from
killing the girl. He replied that al-
though he was a former Marine who saw
duty in Viet Nam as a helicopter
machine gunner he was afraid of
Mercer.

During the preliminary hearing
neither Mercer nor Gardner, both with
long hair and beards, showed any emo-
tion. They stared straight ahead as
Campbell testified.

Campbell said Gardner and Karen
arrived about five minutes after Mercer
and the other man. They all were sitting
in the living room when Mercer picked
up a sawed-off shotgun, walked behind
the chair in which Karen was sitting,
and told her to go upstairs with him.

“He tapped her on the head with the

wun and told her to get her a— up-
stairs,” Campbell said,

The girl resisted, but Mercer grabbed
her by the arm and, prodding her with
the gun, dragged her upstairs.

“She said ‘Steve, help me!’, Campbell
said.

“Steve just grinned and said, ‘Happy
Birthday, Tiny,’ ” Campbell continued.

The girl’s dress was. thrown
downstairs and five or 10 minutes later
Mercer yelled for Gardner and the other
man to come upstairs. Campbell said he
followed along behind them and heard
Mercer tell them to have sex with
Karen, too.

. Sornetine later, Mercer told
@ampbell it was his turn and told him to
go into the bedroom where Karen was
lying on the bed.

* Campbell said he joined the nude girl
on the bed but did not touch her. When
the others left the room he told her he
was sorry about what had happened and
she put her arms around him and
started crying, Campbell said.

“Shé asked what they were going to
do to her next,” Campbell said, and
added, “I told her to play along with
Tiny and tell him she would like to see
him again.”

Campbell testified he urged her to
play along because he thought they
would leave her alone after she was
forced to'commit the sex acts.

Just after this he heard Gardner tell
Mercer to kill the girl. He was in
another room but was called back to the
bedroom by Mercer. He saw Mercer
straddling the girl with his hands
around her neck!

“He told me to take her pulse to see if
she was dead. I said, ‘No, she’s not dead
” Campbell continued.

Mercer then raised his hand and
“smashed her face with his fist,”
Campbell said.

“Mercer’s hands went back to her
throat and he said she was a hard
c--- to kill.

The next time he felt for the girl's
pulse there was none, Campbell said.

Mercer then pushed the body off the
bed and threw the sheets and blanket
into a washing machine. He wrapped
another sheet around the body and or-
dered Campbell to help him carry her to
his (Campbell’s) pickup truck parked in
front of the house.

They put the body in the back of the
truck and Mercer directed him to drive
to the wooded area off State Line where
the body ultimately was found. After
dumping the body they returned to
Mercer’s house and slept an hour before
going to the hospital to see Mercer's
wife.

On cross-examination Campbell was
asked repeatedly by defense attorneys
why he didn’t intervene when he

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realized Mercer intended to kill the
helpless young woman. He was asked:

Q—Did you think he was going to kill
her?

A—Yes.

Q—Well, why didn’t you hit Mercer in
the head?

A—With-what?

Q—Your fist, your foot, anything.
You were afraid of George Mercer?

A—Yes.

Following the preliminary hearing,
at which neither Mercer nor Gardner
testified, the defendants were bound
over for trial in the Cass County Circuit
Court on the capital murder charge.
Both were ordered held in jail without
bond.

On September 10, 1979, after obtain-
ing a change of venue, Mercer went on
trial in the Greene County Court in
Springfield, Missouri, before Judge
John Crow and a jury: Prosecuting At-
torney Hamilton told the jury the state
was asking for the death penalty.

The key witness at the trial was
Campbell. He gave the jury the same
testimony he had given during the pre-
liminary hearing. He told the jury he
watched as Mercer killed the girl.

Mercer’s attorney attacked
Campbell’s credibility as a witness and
in his closing argument told the jury
Campbell had lied on the witness stand.

“He can tell lie after lie. He’s so ac-
complished, you have to believe him.
Karen Keeton was not murdered in that

house in Belton,” the defense lawyer
asserted.

The jury, however, believed
Campbell. On September 15th, after de-
liberating only three hours, the jurors
returned a verdict of guilty and recom-
mended that the death penalty be asses-
sed. :

Mercer showed no emotion when the
verdict was read. Later he smoked a
cigarette and joked with friends as he
was being taken from the courtroom.

Pros. Hamilton called the verdict a
fair one.

“We worked hard on it. Obviously I
thought the facts justified the death
sentence,” he said.

Karen’s mother said, “we are pleased
with the verdict. We think it was just a
horrible thing he did to her.”

Gardner, meanwhile, is in the Cass
County Jail awaiting his trial on the
capital murder charge facing him. He is,
of course, presumed innocent until or
unless he is found guilty in a court of
law by a jury of his peers after due pro-
cess. took

EDITOR’S NOTE:

William Harrison and Jane
Adams are not the real names of the
persons so named in the foregoing
story. Fictitious names have been
used because there is no reason for
public interest in the identities of
these persons.

Blew the Whistle on Killer

ford asked her and her sister to burn

three boxes with the Sirloin Stock-
ade logo stamped on them, but that she
never did because burning trash in the
outside garbage container was prohi-
bited by the motel manager.

The woman told the jury that after
hearing her sister’s story about Roger
Stafford having said he was the one who
did the killings, she confronted him. She
testified, “I asked him, ‘Did you really
kill them, Roger?’ And then he said
he killed every one of them. He said it
was just like shooting a balloon in a bag
of water. He said shooting a person was
just like shooting a fence post.”

“T said I was going to turn him in,” the
former motel maid related, “and he said
if I did, I wouldn’t live long enough to
testify.”

Testimony brought out that one of the
maids had found a pair of jeans in the
trash bin, but she decided not to salvage
them when she saw what looked like
bloodstains on the legs. Verna Stafford

had told earlier of throwing away the -

jeans at Roger Stafford’s request.

Both of the women testified they did
not come forward with their informa-
tion because they were frightened and

(from page 31)

feared for their safety.

Another woman who had been stay-
ing at the same motel was called as a
witness. She said that she had over-
heard Roger and Verna Stafford argu-
ing about the killings outside her door
at the motel. She said Stafford struck
his wife, who then threatened to call the
police.

The woman witness quoted Verna
Stafford as having said, “I didn’t kill

.them, you did.” Stafford responded,
“You're in as much trouble as I am,” the
witness related.

The next witness, a 19-year-old
woman, identified Stafford as the driver
ofthe vehicle that nearly collided with
her car as she drove by the I-240 en-
trance ramp near the Sirloin Stock-
ade on Sunday night, July 16, 1978.

The state rested its case, and the de-
fense lost no time in setting out to chal-
lenge the story told by key witness
Verna Stafford. First witness called for
the defense was Roger Stafford himself.

Speaking in an accent tinged with his
native South but colored also by the var-
ious geographic areas of the country in
which he had wandered, Stafford denied
that he had been involved in the gun-

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Ex-gang leader invites wife, friends, priest to watch fat

lesses_

al injection at Missouri prison

The Associated Press

JEFFERSON CITY — His wife,
a priest and two friends have been
chosen by convicted killer George
Mercer to witness his execution,
which his attorney is trying to halt,
prison officials said Friday.

The execution of the former Kan-
sas City motorcycle gang leader is
set for 12:01 a.m. Thursday at the
Missouri- State Penitentiary. He
would be the first person executed
in Missouri since 1965 and the first
to die by lethal injection.

He was condemned for the rape
and murder of Karen Keeton, 22,
on Aug. 31, 1978 — his birthday.
Friends.took her-to his house and

presented her as a “birthday pres-

ent,” according to testimony at his
1979 trial.
Prison spokesman Dale Riley said

a - \ ,°

Mercer is allowed to name five
persons to witness the execution
and he has selected four — his wite
of eight years, Christy, a priest who
is a volunteer chaplain at the prison,
and two friends.

Riley declined. to identify the
friends but said one of them was a
“biker buddy.” He said the state has
a list of 17 witnesses, including eight
reporters, but also declined to reveal
those names. ae

He said Mercer, who is called
Tiny and has a beard and a pony
tail, has been in. his isolation cell
watching television and talking to
his wife and other visitors. dal.

_ Riley ‘said Mercer, on death row
longer than any other inmate, has

become religious since his imprison-

ment and has appeared calm since
Tuesday, when the Missouri Su-

ae ee

preme Court set his execution date.
“He keeps saying if it’s the Lord’s
will, it will happen,” Riley said.
“His favorite reading materials are
the Bible and Easy Rider motorcy-
cle magazine.”
He said Mercer has ordered his
last meal — a steak, french fries,
tossed green salad and a Coca-Cola.
On Thursday his lawyer, Douglas

, Laird, filed a petition with the U.S.-

District Court in Kansas City asking
for a stay of execution to give time
to examine legal issues not raised in
Mercer’s previous appeal, which the
U.S. Supreme Court refused to hear
last week. ;
U.S. District Judge Scott. O.
Wright was expected to rule Mon-
day on the request for a stay of
execution. If Wright grants a stay, it

See PRISONER, C-10, Col. 5

_ Prisoner pi

Continued from Page C-1

is expected that he would conduct a
hearing on the issues raised by
Laird. :

The main issue raised by Laird’s
peitition was that Mercer’s defense
attorney at his trial was ineffective.
Laird was later appointed by the 8th
_USS. Circuit Court of Appeals in St.
Louis to represent Mercer.

But the state attorney general’s
office replied that no fewer than five
state and federal courts have re-
viewed Mercer’s conviction and
sentence. It said raising the question
of ineffective counsel now was an
abuse of the appeals process.

-Mercer’s execution date was set
by the court one week after the U.S.

cks witnesses.

Supreme Court halted the schedul
execution of Gerald Smith. Smi
30, who says he wants to die, v
convicted of the 1980 beating dez
of his girlfriend in St. Louis.

The last man executed in Missc
ri was Lloyd Leo Anderson, w
died in the gas chamber on Feb, ‘
1965, cursing then-Gov. Warr
Hearnes for not pardoning him. T
state replaced the gas chamber wi
lethal injection in August. There ¢
64 men and one woman facing t
death penalty in Missouri.

Thirty-nine persons have been €
ecuted at the prison since the sté
took over executions in 1938. E
fore that, condemned crimin:
were hung by the sheriff in t
county where the crime occurred.

—

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revoke its contract carriage permit. 49
U.S.C.A. § 10925(e).

6. Commerce ¢85.25

Because Congress had given Interstate
Commerce Commission (ICC) broad régula-
tory responsibility over carriers’ contract
carriage operations, it is for ICC to interpret
and apply statutory standards that define
contract carriage. 49 U.S,C.A.
§§ 10102(15)(B)(ii), 10761(b), 10762(f).

7. Administrative Law and _ Procedure
683

Bankruptcy ¢=3779

Court of Appeals, in reviewing judgment
of district court affirming bankruptcy court

decision giving effect to decision of Interstate

Commerce Commission (ICC), in substance

was reviewing decision of administrative —

agency, and thus, deferential standard of re-
view, under which agency’s actions are pre-
sumed valid so long as agency has rationally
set forth grounds on which it acted, applied,
rather than de novo standard of review;
Court of Appeals was not reviewing legal
rulings of bankruptcy court or its findings of
fact. 5 U.S.C.A. § 706(2), (2)(A, D).

8. Administrative Law and _ Procedure
754.1, 763
Commerce ¢16], 169
Under Administrative Procedures Act,
scope of judicial review of decisions of agency
such as Interstate Commerce Commission
(ICC) is very narrow; hence, reviewing court

may set. aside ICC’s decision only if it is
arbitrary, capricious or abuse of discretion,

or otherwise not in accordance with law or

procedure. 5 U.S.C.A. § 706(2), (2)(A, D).

9. Administrative Law and Procedure
749, 790, 793

- Under deferential standard of review,
agency’s action is presumed valid so long as
agency has rationally set forth grounds on
which it acted and reviewing court may not
substitute its own judgment. 5 U.S.C.A.
§ 706(2), (2)(A, D).

10. Administrative Law and Procedure
€797, 800

Deference to agency’s decision is partic-
ularly appropriate when proceeding involves
review of agency’s interpretation of its stat-
utes and. regulations. 5 U.S.C.A: § 706(2),

(2)(A, D).

11. Statutes ¢=219(2)

Where Congress has not spoken to pre-
cise issue, or did so ambiguously, reviewing
court cannot substitute its own reading of
statute that agency is charged with adminis-
tering, but must defer to agency’s construc-
tion so long as its construction was permissi-
ble or reasonable one. 5 U.S.C.A. § 706(2),

(2)(A, D).

12. Administrative Law and Procedure
e759

Commerce ¢161

Issue of whether. relationship between
carrier and shipper was one of “contract
carriage” or “common carriage” was not sim-
ply interpretation of contract to which de
novo standard of review applied in Court of
Appeals; underlying issue required. probing
analysis of transportation relationship be-
tween shipper and carrier, analysis which
was particularly one within expertise of In-
terstate Commerce Commission (ICC) and,
thus, deferential review was appropriate. 49
U.S.C.A. § 10102(12), (15)(B); 5 U.S.C.A.
§ 706(2), (2)(A, D).

See publication Words and: Phrases

for other judicial constructions and def-
initions, .

BANKRUPTCY ESTATE OF UNITED SHIP. v. GENERAL MILLS 1383
Cite as 34 F.3d 1383 (8th Cir. 1994) oe

The evidence submitted at trial described
two gruesome murders. Two victims were
bound, gagged, and held hostage for three

hours before being shot execution-style.
Murray and his cohorts stabbed the floor

around the victims and sexually assaulted the
two victims who managed to escape. On the
basis of this evidence, we believe the jury
could have found that the victims were sub-
ject to serious physical and mental abuse,
and that Murray’s actions exhibited the dis-

regard for human life found by the Missouri

Supreme Court. bid. Moreover, this Court
has previously found similar instructions to
be valid. See Battle v. Delo, 19 F.3d 1547,
1562-63; Mercer v. Armontrout, 864 F.2d
1429, 1485 (8th Cir.1988).

IV.

After earefully reviewing each of Murray’s
claims for federal habeas relief, we affirm the
District Court’s denial of his petition.

AqAMmMs

The BANKRUPTCY ESTATE OF
UNITED SHIPPING COMPANY, ~
INC., Appellant,

Vv.
GENERAL MILLS, INC., Appellees.
United States of America, on behalf of

the Interstate Commerce Commission,
Intervenor—Appellee.

No. 93-1232.

United States Court of Appeals,
Eighth Circuit.

Submitted Oct. 11, 1993.
Decided Sept. 7, 1994.

Chapter 11 debtor-carrier brought ad-
versary proceeding seeking to recover under-
charges from shipper. The Bankruptcy
Court, Nancy C. Dreher, J., awarded sum-

mary judgment in favor of shipper giving
effect to determination made by Interstate
Commerce Commission (ICC) that transpor-
tation relationship between shipper and car-
rier constituted contract carriage. Debtor
appealed. The United States District Court
for the District of Minnesota, Paul A. Magnu-

‘son, J., affirmed. Debtor appealed. The

Court of Appeals, MeMillian, Circuit Judge,
held that: (1) deferential standard of review
rather than de novo standard applied to re-
view of judgment of district court affirming
bankruptcy court decision giving effect to
decision of ICC; (2) agreement between
shipper and carrier was one for contract
carriage, rather than common carriage; (8)
that common carrier could provide transpor-
tation services that carrier provided to ship-
per was not issue, and issue was whether, by
requiring such service, actual carriage was
tailored to meet shipper’s particular needs in
context of ongoing contractual relationship so
as to be contract carriage; and (4) regulation
governing contract carriage did not require
that rates and charges be stated in writing or
that agreement include term such as destina-
tion of shipments, equipment to be provided,
and volume of freight involved.

Affirmed in part; reversed in part and

remanded.

1. Commerce 85.33

Motor common carriers must publish
and file tariffs with Interstate Commerce
Commission (ICC) containing their transpor-
tation rates. 49 U.S.C.A. § 10762.

2. Carriers <189

Applicable tariff rate, i.e., filed rate, filed
by common carrier is legal rate and only rate
that carrier may charge, and that shipper
may pay, for common carriage unless and
until that rate is set-aside by Interstate
Commerce Commission (ICC) as unreason-
able or unlawful. 49 U.S.C.A. § 10761(a).

3, Carriers €°189

Purpose of filed rate doctrine is to pre-
vent rate discrimination and to promote rate
stabilization. 49 US.C.A. §§ 10761(a),
10762.

Murrey execed 7-26-95 Mj sSoH

Laine aie aaa

ae!
‘eo

terprise liability (Count 10) and alternative
liability (Count 11) are dismissed.

aANmMs

; Vv hie weg eT Tea
; Robert Anthony MURRAY, Petitioner,

v.
Paul DELO, Respondent.

No. 90-0370C(3).

United States District Court,
E.D. Missouri, E.D.

April 8, 1991.

After defendant’s capital murder con-
viction was affirmed on direct appeal, 744
S.W.2d 762, defendant petitioned for writ
of habeas corpus. The District Court,
Hungate, J., held that: (1) issues not raised
by postconviction counsel in state proceed-
ings were procedurally barred in subse-
quent habeas corpus proceeding, absent
showing that petitioner was prejudiced by
such failure; (2) defendant was not denied
effective assistance of counsel at trial; (8)
prospective jurors were properly stricken
for cause; (4) photographs depicting bodies
of murder victims were admissible; and (5)
trial court properly permitted state to make
opening statement during penalty phase.

Petition denied.

1. Habeas Corpus 365

Issues not raised by postconviction
counsel in state proceedings were procedur-
ally barred in subsequent habeas corpus
proceeding, absent showing that petitioner
was prejudiced by such failure. U.S.C.A.
Const.Amend. 6; 28 U.S.C.A. § 2254; V.A.
M.R. 29.15.

2. Homicide <311

Missouri approved instruction sub-
mitted in capital murder trial did not imper-
missibly limit jurors’ consideration of miti-
gating evidence, where jurors were not

MURRAY v. DELO
Cite as 767 F.Supp. 975 (E.D.Mo. 1991)

° j i

975

submitted verdict form requiring designa-
tion of each mitigating circumstance found
unanimously by it.

3. Criminal Law €641.13(6)

Trial counsel’s alleged failure to en-
sure that notes and memoranda prepared
by investigating officers that state claimed
had been destroyed were not introduced in
evidence did not prejudice defendant, ab-
sent allegation that notes were not de-
stroyed or that notes contained exculpatory
information that would have been benefi-
cial to him. U.S.C.A. Const.Amend. 6.

4. Criminal Law ¢=465

Testimony that two murder victims
had been taken into a back room and “‘tor-

tured” was within province of witness, in

view of evidence that victims were bound
and gagged, beaten before being killed and
that defendant and his accomplices stabbed
knives into floor directly beside victims.

5. Criminal Law ¢338(7)
Witnesses <=318

Witness’ testimony as to emotional
state of another witness when he arrived at
scene of murder did not improperly bolster
testimony of other witness or prejudice de-
fendant in murder prosecution.

6. Jury ¢131(2)

Control of voir dire is in sound discre-
tion of trial court.

7. Jury 130

Defendant’s loss of peremptory chal-
lenge as result of trial court’s failure to
strike for cause juror who stated that
death was only punishment she would con-
sider after finding defendant guilty of pre-
meditated murder did not constitute viola-
tion of defendant’s right to fair trial. U.S.
C.A. Const.Amend. 6.

8. Homicide €-127

Indictment charging defendant with
first-degree murder was proper, where in-
dictment substantially tracked format ap-
proved by Missouri Supreme Court. V.A.
M.R. 238.01(e).

976

9. Criminal Law ¢641.13(2)

Defendant was not prejudiced in mur-
der prosecution when defense counsel
failed to object to prosecutor’s remarks
which inferred that case was other than a
“normal murder situation,” where evidence
supported such inference.

10. Habeas Corpus ¢497

Defendant was not prejudiced when
State allegedly personalized closing argu-
ment in murder prosecution, in view of
overwhelming evidence against defendant.

11. Criminal Law ¢641.13(1)

In determining whether counsel was
ineffective, court determines whether coun-
sel’s performance was deficient and, if so,

whether deficient performance prejudiced
defense. U.S.C.A. Const.Amend. 6.

12. Criminal Law ¢641.13(7)

Defense counsel’s failure to call defen-
dant’s wife and children to testify at sen-
tencing phase of capital murder trial was
not ineffective assistance; trial counsel de-
cided as matter of strategy not to have
wife testify due to concerns about perjury
and credibility, and did not call defendant’s
young children to testify, since testimony
would merely have been used to gain sym-
pathy. U.S.C.A. Const.Amend. 6.

13. Habeas Corpus <°773

Factual findings underlying counsel’s
performance by state court are entitled to
presumption of correctness in related fed-
eral habeas proceeding. U.S.C.A. Const.
Amend. 6; 28 U.S.C.A. § 2254(d).

14. Habeas Corpus ¢773

While presumption of correctness at-
taches in federal habeas proceeding to any
facts found by state court underlying inef-
fective assistance of counsel claim, it does
not apply to state court’s ultimate conclu-
sion about whether counsel rendered inef-
fective assistance. U.S.C.A. Const.Amend.
6; 28 U.S.C.A. § 2254(d).

15. Criminal Law ¢641.13(2)

Trial counsel’s failure to move to strike
entire venire panel after court received in-
formation that venireperson had communi-
cated inflammatory and prejudicial infor-

767 FEDERAL SUPPLEMENT

mation concerning defendant’s guilt was
not ineffective assistance in murder prose-
cution, where trial counsel actively pursued
matter, and it was determined that only
one juror heard inflammatory comments.
U.S.C.A. Const.Amend. 6.

16. Homicide ¢=357(11)

Aggravating circumstance referring to
depravity of mind was properly submitted
to jury in capital murder prosecution, in
view of evidence that victim suffered both
physical and psychological torture.

17. Criminal Law 1166.16

Jury €97(1)

Retention of single juror in violation of
standard prohibiting bias requires reversal
of imposition of death penalty.

18. Jury <-133

Qualifications of prospective juror are
determined based on entire voir dire exami-
nation.

19. Jury 108

Prospective juror who indicated that
death penalty was necessary for certain
crimes was not required to be stricken for
cause, where juror later stated she could
consider both death and life sentences.

20. Jury <108

Prospective jurors, who stated when
questioned by defense counsel that they
would consider only death penalty, were
not required to be stricken for cause in
capital murder prosecution, where jurors
later stated that they could consider both
alternative punishments provided for first-
degree murder when questioned by trial
court.

21. Jury 108

Prospective jurors who indicated that
they could not consider death penalty in
capital murder case were properly stricken
for cause, although they were initially
equivocal about whether they could consid-
er both life and death sentences.

22. Habeas Corpus ¢775(2)

State prisoner may not be granted fed-
eral habeas corpus relief on claim that evi-
dence presented at trial was obtained in
violation of Fourth Amendment where

i
| — News (California, MO) July 18, 1863, 1:2

render us great aid by af once settling
the same.

Coldblooded Assassination.

On Tharaday night, the 9th inst.,
Mr. ALFRED NorMAN, 8n old and bigh-
ly respectable citizen of this county,
residing about four miles south of this
place, was shot by one of his negro
boys, aged about 16 years, while sit-
ting in his dining room, and instantly
killed. The negro was arrested the
next evening, suspicion having fixed
the crime upon him, and placed in jail
in this city, where he remained- until
Tuesday last, when he underwent a
trial before R. N. Kenny, Esq. : who,
upon the evidence, committed him to
jail to await atrial before the Circuit
Court, a special term of which, we
learn, will be called on the 27th inst.
The negro has fully confessed his guilt
and gave full details of the whole
bioody transaction. ‘The evidence, to-
gether with his own voluntary confess-
jon, cannot fail to convict him, and he
will doubtless expiate his horrible crime
upon the gallows.

NEW STORE. o
We take mach pleasure in Gelhicg at-

tention to the advertisement, in anoth-
er column, of our friend E. B. Far-
LEY,who has just opened a new stock
of Goods on the corner north of the
Depot.
for ten or twelve years, and can assure
the public that he is a gentleman and a
fair dealer. Give hima call and ex-
umine Lis stock.

We have known Mr. Farley!

on Saturday, 27th.—Republican 12th. |

— <> —_-___#.
A Gouop OrpER.—General Guitar is

placed in command of all that portion
of the State lying North of the Mis-
souri, with headquarters at Macon City.
This foreshadows the preservation of
peace, and the security of property, in
all that section of country. Horse
thieves, and negro thieves, and bush-
whackers will all be alike watched and
punished, and the civil power will find

in the military an efficient arm for the

arrest aud punishment of all criminals.

—

Bas The Commutation taxes due
by the State Military Fund in Buchan-
nan amount to $57,457. ‘There is
considerable over fifty thousaud dol-
lars to be collected yet—mostly due
from rebels.

A Rescus.

-A lIctter from New Orleans to the
Madison Journal says that General
Paine, formerly Colonel of the Fourth
Wisconsin, was severely wounded, and
will probably lose his leg. Ile is in the
hospital at New Orlear®. IIe fell
bravely leading his brigade against tho
rebel entrenchments, and wheo the as-
salt was repulsed, he was Jeft on the
field, He crawled into a small gilly.to

escape the rebel sharpshooters. After

lying there awhile, four negro soldiers
volunteered to bring him in. When
within o short distance they were shot
dead. General Paine was fizally 1¢s-
cued, but not until fourteen negroes
sacrificed their lives in the heroic at-
teipt., >

All civil offic
serve in any pos
it to the Comm:
tain his assent t
assent, he will —
in the discharge
by all the force
If the Comman:
assent, be will
fact, with the 1
to Department |

Criminals ar
authorities may
civil courts for
of District Cor
dinate officer ¥
cretion. No pc
the civil author:
such custody, :
Department C
place of confin
may be guarde:
manding officer
hend his escap
the Department
tained.

aAll actg_ of
murder, theft a
orously punish
by avowed ener
or by those w
Joyalty or the
States army as
Those who thu
the cause to wl
mebt, are no |
avowed enemi:
who commit &:

i uucsbed with

sed the

ris ther

i, 3.

wem,

stated | *

is Neerefary |

Joseph RR.

e Hannibal and St.
This, then, places the prospects of this
road ina most cheering condition. Our!

readers are aware that a portion of the!

road is already completed, to St. Charles, ea ling Whig names attached to it

og asked why | and that the contracts for grubbing, clear-

nsas in the
_‘they_

ing, etc.,
[ese te entered into for t

preparatory to laying the rails,

he entire

vou think it] route from St. Charles to its junction with

She vatant!

he could do |

i sending out |

their question-

racters ascer-
lerable tre-
ton Bast” as
ve stage driver
n to Hanniba!

vit

}sS

-e, however,
it 1s with these
cowards ; they
miserable
and trample

weir

, when
eward of their
»take care of

Journal

For
ary attractions
ave no doubt,
coming year)
abseription lis}
: a new novel
outline sketch:
reneral Morris,
“iold, the pop-
of the New
terms of the
igllars a year, |
on is at 107

ue’?
Vs

Hannibal and St. Joseph Ranlroaa,
To ths remark we except a f

i the
ew miles
whict has been let to arresponsible persons,
but this
The work
is rapidly and actively progressing from
this county to St. Charles. Col. Rusey,
of Randolph. who bas a contract in this
county of nine miles, has commenced work
between Huntsville and Milton.with forty
hands, and speaks confidently of its
being ready for the rails during the
coming summer. The same may be said
of other contractors in the couniy.__The
gentiemen who have a contract part in Au-
drain and part in Randoiph, have been at
work ‘for some time in Audrain, and so
soon as that part of their contract is finished
will immediately transfer their force into
Randolph. The Assistant Engineer pass-
ed up the line a few days #¥oy and will
douliféss soon have other contractor’ at
work from the end of Col. Rungy’s con-
tract to the vrossing in Macon.
__ By the passage of the bill above referred
to, by the House, ud which we are very
confident, the North Missouri Railroad
company will become possessed of ample
means ; and the commendable energy they
ave thus far displayed 1s ample evidence
of their determination to push the work to
_speedy completion. There is now

relet,
exception amounts to nothing.

and which will have to be

}tion’; that they wish for no further--con=}

ced to come off in this city, to-day, was
duly organized this morning. Delegates
from Ono, Massachusetts, Pennsylvania,
I!lincis, Missouri, and Kentucky, were
present. C. B. Bartiett, President.
Resolutions were adepte | tat the union
of the States affords the best assurance
and guarantees for the preservation of the
liberty of the American people. That
they cherish the right of private judgment
in matters of religion, and respect for the
same in others; that they oppose the union
of church and State, and also to ecclesiasti-
cal combinations of any denomination in
order to produce politica] effects ; that they
eannot recognize-any attempt by a fereign
power, to assume political government un-
der pretence of ecclesiastical jurisdiétion,
otherwise than as an assault upon the in-
sututions of America; that the existing |*
naturalization laws are unsatisfactory and
unsafe,and that additional Jegislation by
Congréés in regard to thefi is necessary ;
that they reafiirm the principles of the
platform of the American party adopted at
Philadelphia, and maintain them as the
basis of the political action cf the Ameri-
can party ; that they deplore the events of
the 6th of August, in Louisville, but -feel
inno depfee responsible for them; and
publiely declare that no scene of violence
has been concerted, nor was meditated
by them, that the rioting originated by
wanton assaults from foreigners on unof-
fending citizens not meddling in the elec-

troversy on this subject, but whenever a
like oceasion exhibits similar recklessness

ep.—The Uni-
ursday of last
to 49, was oon-
Yednesday last
nent 18-10-43.
old law in the

tthe President,

‘(granting the passage of -the-bill) eppa-

rently no obstacle in the way, and we
heartily rejoice at the flattering prospect of
the success of this great work of Internal
Improvement, which the people of Ran-
dolph have so much at heart, which will do

so much for her future advancement-andt-
‘development, which will bring the great

and wickedness on the part of their adver-|
saries, the Americans of Louisville will
firmly maintain their, rights at every
hazard.
Adjourned till this afternoon.
MHSSOURI LEGISLATURE.
Jerrerson Ciry, November 30.
-Hovsr.—Passed an act to incorporate
the School Association and Free Commu-

be elected for
ars.
sident, Profess-
~ continuance in
tise the func-
cospel.

present Presi- +
3 shall expire on

egislature ‘shall

Surators whose |

ce on the first
sent Board, of
y-

ond,. Editor of
* died lass Sun-
m many years,

en
‘a &@ man!

v
easy and profitable market to our farmers
for the products of their industry, ani to
business men and mechanics facilities
of an unusual character, and place our
beautiful ‘and fertile County in a position
of enviable prominence among her neigh-
bors.

~ Tur Rattroap—Track-Layvine.—Op

Thursday last the track-layers commenced
work on food Se in good earnest, They
commenced operations at the freight depot,
and will follow the track on out. The gra-

ding on the track has been finished for a_
distance of twenty-five miles, and all of it

tion of the South River Bridge. We learn
that the Se ee the track-

are energetic business men, and}
| that they will oes tbs Seip Wedd oo faa
as possible. —|] Hannrbal seer oger.

2 eee

of free negroes from the State, and appro-

_| will be a contest over it, and a final vote

nity of St Louis and Bremen.

tisvy vt

riating $3,000 annually, for ten years, for
this purpose, to be expended under the éon-
trol of the State Colonization Society.
The bill to secure the completion of cer-
tain Railroads in this State, was#hen ta-
ken up, and the reading of the bill was
concluded at 12 o'clock to-day. There

will not, probably, be had before to-mor-
row evening.

The amendment to Railroad bill pro-
posed by~ the North Missouri Railroad,
now 1S, in substance, that the $2,000,000
proposed to be-granted by the bill. to this |

allowed duty free, _

reounty, convicted and ‘wenreyeed to be feng

for the murd was_exe

at Pappinville on tast Friday. We un-
derstand a very large number of persons
witnessed the amfal_scene

| delphia, ihy of @- ‘gross. ee ~-
peteon of his. patient, bas

| penitentiary.
road, shall be expended exclusively North | -

A paper was gotten up and signed bysume | Gen Culiucs, of Tennessee 13 considered .
Ww gs who are know n h ere. That paper i sure for the elerksiip of the House of \ Nottie | my
pwas seen baat was offeredto some Whigs Represenigsives. The American and : Watting fh Aen
; Who it was thought, might fuse, and who Whigs will cdalesce. , f
irefuse,to sign it. There were certain 5 Trentox, N. J. Nov. 29. Bi ee
and Gov. Reoder addressed a large meetin 1g as
\they could be named upon the best authoriy. | here this evening, on the advantages of
Whore the paper now is, i= not known, | Kansas as ao agricultural country, of the
but the proposition received so little favor | wrongs of freemen in Kansas, aud the
that itfelito the ground like dead weight. | prospects of the future of Kansas, undes ;
Lovisvitre, November 27 fair and proper legislation. =
The American mass meeting announ- Arrival of the Atlantic

New York, Nov. 30, p x

The Atlantic arrived at 9 o'clock this eve-
ning unannounced. The latest dispatches
from the Seat of War report, officially,
from Lord Stratford Radcliffe, a victory
gained November oth, by Omar Pacha,
over ten thousand Russians, mostly Geor-
gian militia, at River Ingour, which Omer
Pacha, with Turks 20,000 strong, crosegé
at four points, taking 60 prisoners, 5 guns,
400 were killed and wounded ; Turkish
ioss 300. A private dispatch which evi-
dently refers to the same encounter says
the Turks crossed the river Anakara and
stormed the Russian redoubt, after. which
they pushed forward towards Kutais.
Kutais is still beseiged, but appearapces—
indicate that the Russians will refarn to
Tiflis. Nothing from the Crimea.

Only a few ships remain in the Dnieper,
and the bulk of the fleets are returning
to Constantinople.

Peace rumors are extremely prevalen::
ciplomacy, however, is active, especially
at Stockholm, Vienna and Brussels.

Both armies in the Crimea-are wholly
occupied in preparing for winter. A de-
sultory fire is kept up between the North
and South of Sebastopol, the fortifications
ou both sides being augmented.

St. Petersburg dispatches says the Empe-
ror left Nicolaieff on the 7th for the Cri-
mea, to thank in person Gortschakoff’s
army. Heé returned via Moscow to St.
Petersburg. pea ae

The exportation of breadstuffs if prohib-
ited from all Turkish -ports. Importations

A private dispatch says : Russia vee
lutely prohibited the export of breadstuffs. ©
Sweden expected to follow the example.

Hunc.—Wm. Nottingham, of Bates

* LV OLLI Dg? i)

acknowledged to th crime of which
was charged—that of murdering his wife.
He was a Doctor by profession, and was &—
very intellectual man. We hope, next
week, to be able to give the full particulars
of the confession and- execution. —[Wer-
saw Democrat.

Jar Ds. Beale, the dentin, of: Phila

A A a
me ome -

of the Hannibat and StF

granted to the road, to be expended by th
}Governor of the State, or an agent
by him, in pur iron, cars and |

motives for-the : road tween St. . Oba

— Ale 33 oe Suite

oseph i
and that $1,000,000 additional shall be} -

NOTTINGHAM, William, wh, hanged Bates Co., MO, Nov. 23, 1855

| M[caogr.— Soma two waeke since the
wife ofa Mr. Nottingham living in Bates |

| county, made her disappearance, and not

| being heard from,circumstances transpired

i which excited suspicions of foul play. end

|severul citizens proceeded to investigate
the matter. It was first supposed she had |
|voluntarily left her husband, but on inqul- ,
ry at ber fethers’s and other of her rela-,
tions, ,nothing could be learned of her.
whereaboute. Search was made in the |
woods, and her body found interred nedr |
an old log. Her head was terribly man- .
'gled, an her body altnost entirely severed |
near the waist. From some remarks made |
by a eon, and other circumstancnces pre- |
viously, suspicion of guilt rested upon |
Notting ham as the perpetra’or of the teed |
and he was imineciately taken into custody |
and securedin irons. Murder is still rife |
‘in Missouri,and does apear that if vigilance |
and justice were propertly exercised, Mt:
would become less frequeut,— Oseola Ind. |
.

TRIBUNE, Liberty, Missouri, May 12, 1854, p2, cé

AMNESTY |
| INTERNATIONAL
| USA :

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 » Nederland, CO 80466-1270 » 303-440-0913 « FAX: 303-258-788

|
|
|
|

UA 06/89 Death Penalty 10 January 1989
USA (Missouri): George Mercer

George Mercer, white, aged 44, was executed in Missouri by lethal injectio:
on 6 January 1989. He was convicted of the 1978 murder of Karen Keeton,

white, aged 22. Amnesty International learned of this execution only after.
it had been carried out. ;

George Mercer’s execution was the first to be carried out by the state of
Missouri for more than 23 years, and was the first following the adoption |
in 1977. of Missouri’s new death penalty statute. There are 69 other |
prisoners under sentence of death in Missouri, three of whom are believed
to be nearing the end of their appeals.

'
|

Amnesty International opposes the death penalty in all cases as a violatio))
of the right to life and the right not to be subjected to cruel, inhuman

and degrading treatment or punishment, as proclaimed in the Universal |
Declaration of Human Rights. 5

Recommended action: air mail letters:
- expressing regret at the execution of George Mercer, the first in the
state of Missouri since 1965:

- urging the governor not to. permit further executions to be carried out.

Appeals to:

The Hon. John Ashcroft
Office of the Governor
State Capitol

Jefferson City, MO 65101

Please send appeals immediately. Please check with the Colorado office
WEEKDAYS ONLY between 9:00 AM and 6:00 PM Mountain Time if sending
appeals after February 15, 1989. !

te : i j ’ he International Secretariat in London, Unitec
This Urgent Action appeal originated from Amnesty International's research headquarters at the
tinadare Amnesty International is an independent worldwide movement working for the international Protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have no!

’ used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works or |

behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment o:
punishment of all prisoners without reservation. |

Missouri Execution Stayed

"JEFFERSON CITY, Mo. (P—A
federal ‘appeals court on Wednes-
day stayed the execution of a
onetimé: motorcycle gang leader
less than 12 hours before he was
scheduled to die for the rape and
murder:of a tavern waitress. The
execution of George (Tiny) Mer-
cer, 44, Would have been the first in
Missouri since 1965.

ree ROAR Mak Se

4. Pait Il /Thursdsiy, October 20, 1988

flos Angeles Times

ewes rw -o---

the 105th person put to death in
“the United States since the Su-

Convicted killer
executed 1 in Missouri. .

JEFFERSON CITY, Mo.’ —
Convicted killer George “Tiny”
Mercer was put to death by in-
jection early today for the mur-
der of a tavern waitress, becom-
ing the first Missouri inmate ex-
ecuted since 1965. Yesterday, the
U.S. Supreme Court refused on a
vote of 7-2 to stay the execution,
and Gov. John Ashcroft did not
block the execution. Mercer was »

MISSOURI

JEFFERSON CITY — State’s
general revenue for Ist 6 months
of 1988-89 budget year was $1.6 bil-
lion, up 7.3% from previous year.
Credited: ongoing strength of
state’s economy. ... KANSAS
CITY — State Supreme Court is-
sued new death warrant for
George “Tiny” Mercer, 44. His exe-
cution is Friday for rape, murder
of tavern waitress. Execution
would be state’s Ist since ’65,

USA TODAY » WEDNESDAY, JANUARY 4, 1989 - 7A

MQ@UME GUOTYUULY suevessesrw cee

JEFFERSON CITY — U.S. Ap-
peals Court refused to let prison of-
ficials execute George “Tiny” Mer-

cer, scheduled to die today. It
would have been Missouri's Ist ex-
ecution since ’65; State Atty. Gen.

William Webster said he would ask
U.S. Supreme eee to vacate sta

fb 2L=- “28

S_=emeacesa at @

- preme Court allowed states to...

restore the death penalty in 1976.+c:
Mercer, 44, was convicted of the’,
1978 rape and murder of a tava:
ern waitress near Kansas City... ~
He has been on Missouri’s death’ :
row longer than ae ener ine:
mate.

Sikhs hanged for I 984
assassination of Gandhi

NEW DELHI, India — Two.
Sikhs were hanged today for the: “
1984 assassihation of Prime Min
ister Indira Gandhi, whose death’:
triggered a wave of separatist’.
violence that continues to Scene’ ‘%
the nation. Kehar Singh and Sa«>'~
twant Singh were pronouncéd;i._,
dead at 8:15 a.m., less than half «+
an hour after. they ‘were takenyc ;
from their tiny cells on death:t? *
row and marched to the chillypii- .
rain-soaked gallows at New Del:.*7
hi’s Tihar Central Jail, said:a@ +:
police official who received cofisi. ’,:

firmation from the prison, = !s3* °

By The Tribune news services OU

A-5

Friday, January 6, 1989

taba

THE TRIBUNE, Oakland, California

Top U.S. court
refuses to halt
Mo. execution

'. JEFFERSON CITY, Mo. (AP) —

The U.S. Supreme Court refused
' yesterday to spare the life of con-
victed killer George “Tiny”. Mercer,
who was scheduled shortly after
midnight: to become the first Mis-
souri inmate put to death since
1965.

‘The justices, by a 7-2 vote, re+
jected Mercer’s emergency plea to
block his execution set for 12:01 a.m.
today. No other appeals were pend-
ing.

Missouri Gov. John Ashcroft was
not expected to block the execution.
Mercer would be the 105th. person
put to death in the United States
since the Supreme Court allowed
states to restore the death penalty in
1976. °

Mercer, 44,-was convicted of the
1978 rape and murder of a tavern
waitress near Kansas City. He has
been on Missouri’s death row longer
than any other inmate.

.When Warden Bill Armontrout
told Mercer the stay had been de-
nied, “Bill described it as sort of a
look of shock. (Mercer) did make
the statement that it was in the
hands of the maker,” said prison
spokesman Dale Riley.

Since October, Missouri has
scheduled four executions that were
halted by the courts, including one
for Mercer,

Mercer was condemned to death
for the murder of 22-year-old Karen
Keeton at his home in Belton. .

According to evidence at his trial,
friends brought Keeton to Mercer as
a “birthday present.” His 11-year-
old daughter was at home during an
assault in which Mercer forced the
woman to have sex with him at gun-
point before killing her.

He was reportedly a member and
possibly leader of a motorcycle gang
called the Missing Links.

: + eacene
.

Missouri -
executes —
murderer.

SSeS! te <2
PA ES SRA RSS Stee

UNITED PRESS INTERNATIONAL

Haily Star

Tucson, Friday, January 6, 1989

@he Arizona

bad

Bia i ee ce I wrt ees es ele es EE

y WX

a aes

SS eR ET Ee reemerr ante ee

Y "E

age

Fe ge

‘ ce

JEFFERSON CITY, Mo. —

_ George “Tiny” Mercer was éxecut-
ed by lethal injection early Friday.
‘for killing a waitress given to,him
| as a “birthday present” by, fellow

motorcycle members. :- : -+

: tive, i ts given the lethal
combination of drugs at’12:03 a.m.
CST and pronounced dead at 12:09
a.m.

He was the first person executed
in Missouri since 1965 and the
105th to die since the Supreme
Court lifted its ban on capital pun-
ishment in 1976. |

Mercer was sentenced to death
for the rape and strangulation in
1978 of Karen Keeton, 22, of Lake
Lotawana in suburban Kansas
City, Mo. She was a tavern waitress
who was taken to Mercer’s home in
Belton, Mo., by a motorcycle gang
and turned over to him as a “birth-
day present.” :

The U.S. Supreme Court cleared
the way for the execution in deny-
ing a stay Thursday. The court vot-
ed 7-2 to reject the appeal, with
Justices William Brennan and
Thurgood Marshall dissenting. '

Mercer spent Thursday visiting
with his wife and a friend, and
reading a Bible and motorcycle
magazines, vs

- For his last meal,’ Mercer or-
dered a barbecued steak, barbecued
ribs, french fried potatoes, a burrito
and tacos, a salad with vinegar and

Ta ae Oe ep

6861 ‘9 AUVANVI
ucousaye Aepiiy

pei aes oT aurea

SLNAZO AAIS“-ALNIML

oil dressing and a large. soft drink.

1 anne i ‘ i baleen apes A =

Missouri prisoners
quiet after execution
of: ex-gang leader —

Death-row cons confined to cells

United Press International :
JEFFERSON CITY, Mo. — Mis-
souri corrections officials slowly eased
operation of the main state peniten-
tiary, back to normal Friday as

inmates reacted to the execution of

George ““Tiny” Mercer, former leader |

of a motorcycle gang.

The 44-year-old, tattooed killer was
taken to the death chamber on the
grounds, of the maximum-security
prison and given an injection of a
- Jethal combination of chemicals at
12:03 a.m. Friday, becoming the first
killer to be executed in Missouri since
1965,:
He: was put to death for the 1978
rapeb.and strangulation of Karen
Keetfri,: a tavern waitress from Lake
Lotdwana in suburban Kansas City.
She was taken to Mercer’s home in
Belton. by a motorcycle: gang and

turnéd over to him as a “birthday

preserit.”

More than 1,900 inmates at the
penitentiary. were’ confined’ to: their
cells‘at.6 p.m. Thursday, as correc-
tions: officials exerted strong control
over{ofderly operation of the institu-

tion | n the hours preceding. the.

execution. ;
: _Dalé Riley, assistant director of the

Missburi Division of Adult Institu-

tions} said that prison officials were —

especially exercising firmness in han-
dling} -death-row inmates, many of
whoth were in subdued moods after
Meroer’s death.

“Wére - proceeding cautiously in
returhing the capital-punishment unit

to not‘mal routine,” Riley said. “There.

has béén no incident, but the officers
on dity believe it was unusually quiet,
almost too quiet, and sometimes that’s
a sign of something.”

Sixt¥-death-row inmates were kept
in tHeir: cells, but eight others with
recortls.’of cooperative behavior were
allowed out of their cells, he said.

THe general population of convicts
was qllowed to move about the prison,

sA2 The Arizona Republic Saturday, January 7, 1989

ee A

from her cheeks with a handkerchief.

ech)

and regular work assignments were
being carried out. ae

“This morning, everything> was
back to an absolutély normal rou-
tine,” Riley said. “Breakfast went very
smoothly, but we fed the inmates a
little more slowly than normal on
purpose. ‘

“Officers on duty described it as a
normal breakfast, and they heard very
little discussion at all about. the
execution. There was only one inci-
dent we could directly relate to the
execution, when an inmate in food
service refused to work because of the
execution.”

Mercer, who had not been a
troublesome inmate, met death peace-
fully. cee
The black-bearded killer, wearing a
ponytail hairstyle and a black band
around his forehead, held a Bible in
his left hand as toxic chemicals flowed
through a tube into his body. He was
suffering from a cold and had two
heavy spasms of coughing -before he
died in about five minutes.

Although Mercer’s body. was:
strapped to a gurney, he coughed so
heavily that his head jerked.up from a:
prone position, and he glared at
witnesses watching him through a
window. .,

After the second coughing spell, his
body became motionless.

As the fluid was injected, Mercer
carried on a brief: conversation with
his wife, Christy, who viewed the .
execution from a window by his head.-

Their remarks could not be heard .
by witnesses, but prison officials said
the two expressed love for each other.

Mercer’s wife smiled gently at him
in the early moments of the execution,
but her expression became solemn
when he stopped moving after: his
second coughing spell.

She left the window briefly and
then returned weeping, wiping tears

News IN BRIEF

A summary of
today’s news ©
compiled from
Arizona Republic °
staff reports and.
wire services. .
phe aia eRe OS

| NATIONAL

Sen, John McCain urges congressional hearings
aimed at reforms in current Medicare coverage for
catastrophic illness. 5.

Missouri corrections officials ease operation of
the state penitentiary back to normal as inmates
react to the state’s first execution since 1965. A6.

. ow © Pie
- a) «6 > = ?
. a, em * ewe 4 a
ee me =e SB 6

R FOLLOWS
4/EAT UP THE
»>RICE LADDER

a eS ee ee ee ee

mi whee 8 Leb
eT 78 i Set men tt
om Ew 2. fo wm
ae ‘4

:
es ll

ee a
4 20 wet Re te be tata
se em tf ol Tea mit be
he tS ow; See eo:
Pe on ee ee a ee |
en & i en oe |
nm

ee
Boies te. . > oot
~~ «gt ss °° @ pew wf
“b .2 asp t 93: Bear
-—wer kt ow oad BS Is
tat 4 awa. bas tare
a

- te =a pee Buy

>w Paes ““* @a:e “ms
Pn es So ee ee |
> .@9 2 © ire €2°.5 are 678
ecrms 8°
Linge f4f Fg tea
Seto ume boweter win
*—sen (Gi eeig tc Uh
Sm +O+He tn Wintpeg
en fr (20 eer Ge mm ow
eae . ed be j?. wes
ma. &@ teomdet ra:ge ta tbe
Lal ee ae CMe ext Lo
6 Uwe oxp ar2 (Here .s a
eg oe frwér-e that grais
te etrerr od te ‘eat.

‘AGO YOUTH
LS OF PRIZE
(NING SKETCH

rtwe en bark page) ~~~
Pree. Joly 1h ~~ tpertal

Are AP Decta perhaps the

mngtiahbeg and “rr portant
arc eture in ‘be country;
aightiy more t$ril

wrt Pieg. postnfal Chiraguen! q

a2houncement Which pre
>y a few @aye, ‘Pet he
cy pamsed the [itmots stare
im tor

"arpe days | t
iceume exasninat

wed:{ for my ‘efaning the
ard.” he sed, “ should so to

& Campodrtt head of th

—e °- ¢ - -- ~* oo
78k » e 0 amb tata
we ef to mw 2
a & 5 ome wo ers 4g
o .§ .e Be ow woe -
‘9 et @nm or eur? Seoee 4 *
et ee: @e 9 ast mae foe

ee i @reca vet are ~

se Qe 4240 4 waite “wT,

0 pe ett.g WM terete

tance @

en rh B+ eer eve mM Ie!
OAR a tea le Omer g Brio
aads ae pee, ug ic lp

ee eee. Be er es ~et
oe vrew?_ oat > the-we > o>
Ae fet Be ween ef berotad) fo) E}
te muwegp Ob? ant we Pee”

I }scry Howe oo Je8,

Heam dG ie noe: bw rertte. Trot ast |

Pies BF actepsy Qaere pctorceys es

oo. wagrd re ore Moware wen |

ce a mh 0 aw oe wie 6:0 oe
wr BB Gow oee tf ee PAMUCEY
ot wa ay Of ete ph mugra stag w the
ter sre ey ir-0R

"He Ttiog@ (+ Mr Kerea frat he
teres rv aeog spd Wiss Onrreg
ars tog se turned Ut (be rep owriers

OTe. ge mew T yware PTO axed

ane I pe” dehewed Mowsrd
Tem ofp prdected me! Why tnrat
ant * whee. [I fell amieep. she
ryshec Be to Lhe pobce and ‘the
24-8 Wh rd Z trie@ to Damp) myself
ee i

ped up

ksi « Why. he tried +e commit

ourexfe ree t:nes! I've cx bie three

‘mi ewge bru: es' to prowe IL”
. Yih Theee Few Werds.
‘ He. tes is ¢pell of sore soft about
every tay wedka.” simer Evetyn ieter-
weteé.y We oan inever Ogure when

Bet cur ang do next”!
Ane gpeerted Howard | never
wor ket@ bt dayjaince he marrief Ora,
“a robe I work?” fram How-
ard “I've eft my dough. I've spent

$78 OOM ~ that girl.”
Orgs” He hasn't even provided a
boma Hes

bngy: “Bure, I lived thete. They

wen { alor
; An Ing

with him,”
Actrees,

cui” sha deur are
Jdiesby: “She's @ moron.”;
Eveifn: 7 What is's r.

Scale cof, Por ark
CWICRIO
TRIBUV €&

~“7-/9-

De BLE, HANGING:

ay ST. LOUIS is

IRST SINCE 1907
ee

| in The’ pn) Sail tite tuitions
Conner,

mpting to frustrwfe a pay>
here April 22, 191
“ible execution was

| once wer’
| area,

lived at my brother's ,
1ipume ever @nce we were
> So
j- Vtemteted on It Wherever Johnny went,
‘Se Pare prim of ‘be nxt oy; hw

yqad

fin

4 °ee _* . . ad
wrest ag we ka ee tha a
oe ae oy; 7 @&

| 2d > white --@ a 8”
i i a ee ee ae, | ey
c~ , ee te ee fo ee eo” ae ee
oe 2 2 de Se 2 cel. eS oe |
i ‘eo "8 “Towa, we

Noe Pt im fever! Mee
wee «I suty } Fev tm

b+ regen “ere reogte sary
te ee pmtle of mar Fawe,
ye a aerewisng '. af
Vmhey Ly 18m mala 4H
4

4ap- a

‘ard mere tg
paerccDer:

The wmm roger lt kk ter tat
art for Se ha ter on mel ore? tions
et ter dh

eer. beg in tbe advices ag Bopefi: tha:
Bey would be oy rea) ts iverrom-
Lag oe revoltlccumes 9 wi'oco meveral
“ayn”

Casualtirve Reporte “Light.

Cascalties Im, the fghi.g ware be
teewed tu pe fealsegp bt. & was
easd although tetatle wre -@ pot obtacn-
atte at Banta. Food ‘apples were
emeMcient ai:Bough red ded. it was
wide ‘ =

The municipal cecncilat Santos has
gtven uracimeus gupport to the legal
autheriUes, I who symp@rh ce with the
upper class.t the oummen -alion saj&
lt was g6ded thar “the proletariat is
etill uncertain.”

At Santos a garrison of federal
troops commanded by & aiaeed gen
eral is being Muipped. F:

Canted Cal at! tantes.

New Yorts, July 18.-+ By the Amsoct-
ated Press j—Iwo Mut Joo line steam-
yhips have paiiceled their regular calls
at Santos, Brawl, partig Preanse of the
Sao Paulo revolt, tha commpary an-

hoanced today.
BODY

ASKS MAN’S
BE EXHUMED TO
PROVE IDENTITY

The exhuming of the body of a man
dead seveq months, which she believes
to be that: of her huspand, missing: for
thirty years, was agied yesterday by
Mra Eltfabeth Hamr,ill, 60, 5000 Polk
street, who appeare! ‘before Probate
Judge Henry Horner “4

With the identifiqgtion of the batty
as that of ber husbard, John Hammill,
the aged wortan to prove her
$5,000 estate.

‘to John M. Lea Mra
seunsel, abe and her hus
> Canada tn 1894. Hammill
@ the wife followed years
‘gan a gerch for her hus
ntly shetheard of the d

soueal, whem abe belie

tex eo. saad edaninnadl aa’. a
moni w eagble Mra. Hammill to pro-
dunce — to substantiate her
claim.

Boy Bandits, 15 and16,

Get Long Terms in Pontiac
James W." Kennedy, 15, and Earl
Woodward, { 16, who tasted some gin
‘a few mon mg) and then decided to
become ne ¢ crvoks, were sen-

were ly

tenoed to tha Pq jtiae reformatory for
nty* years by Jodge

Wells M. Cook! erday. Although
they were of killing a delica-
temeen store keeper and committing a’
score of robberies, moet of the chargee

were

from three to

for ‘lack of evidence.

trae Sante tate Sav ot |

_ Antes homp@a, ‘alr

The Fag .ast acthortth@s’ were ¢e!

° «¢@ 7

"ata
a Pls ws

be com et ae Mie. 8
er4 gre Freva

“ Tews. bror le
gs -a

asap Bah |]
A a t

ai
L

»4@

i<
‘ o an’ ~

a’age-
wart -@
2 of
ward 4
bm wee
a “vare@
Poe? wee mM. wi -r ar
The crieck was -"acee
Np eatoe £249 La wremre arer ie
tal of)! et artieg wa 7 trert.
rr ge Mates a fh pom e *
Wee. Ci agrene wreet “4.4% at
amr righ
inl ariee received -eatiw in
fr tle ta with he
ilucemina road was struck
into a Bich by anotner
cf the ‘aitver Bex
i A Ser refer TET Wet North
arG Ur ‘jetard. 1540 Woe
teubevard who were tn the
McGinsis car, Dr, Were
atiended (freq latter ane
the hospiul
“Yellow Kid” Chesterfield.

Becanpe he bad accgrdéed the most
solicitous treatment (@ the mag in-
fured by him agtomobilt, Joseph Wed,
the “ Yellow Kid" of gon game fame.

r. vor* e°
* &
vA
-”

one
ork

e ® Pe eae

:¢ “Shar «es

4119

re
* }-
‘erties ‘he
fap whee. the act.
Was Mrg 8
and any tH
| onr The dri vue

arem re,
Jaca son

an ay 4 him to

wae discharged yet y by Jodge
Georke B. Holmes on A charge of as
maalt with an a e.

Driving early réay morning

with a party including two women,
Well struck and siightly injured Wti-
llarn Clark, 28, 42@ South Clark street
Clark was given $1 by Well and
takén by him to the e View hos
pital

Of these, 118 were
eald to have crossed (tracks at more
than ten miles an bour, and four were
arrested for turning rmners at more
than eight miles an h¢ ur.

WALKER HAS HIS HOUR .

, Pedestrians for thirty minutes yes-

terday croesed Jackson boulevard and
Halsted street with as much ease and
safety as if they were making thelr
way across a vacant lot.

All vehicular trafic was beld at a
standstill at reguiar intervals while
waikers were given the complete free
dom of the crossing. There was no
hurrying, odging or jomping | back
while some driver made a right oF left
turn. Many were m ed at their
new freedom, but all who were asked
thought well of the scheme. ‘

Rebertson nt.

‘It was an expertment conducted by |.

John Dill Robertson, president of=the
weet park board. The is consid-
ering putting such ons into ef-

fect at the busy street intersections in
the west park system; Besides Dr.
Robertson, Sal Westerfdid, treasurer of

allege goad

the tice, and Edgar A.

not injured:

; verde y.

"ea'’

THOMPSON D
YACHTING
DROPS PO

id { hE CT ow gtn
Srua..a 8 een §
Lendir Wooo as Hipe Ty
Jee tn, mt yk ob e
Panwia wart ‘foctgers ote
yeebtamar aud oht a pot
“Tm gupg out to wet
for the Mactinad rme” >}
“It wes due to t
tion in navigation gtvan
that there were mite ene
stoned fram Chicago
than from any other city
try. Bo I want © eee the
thetr big raca”

Artist Taken Ill on

of Entertaining f
Taleboro, Me, July 18 -
Gideon, the artist, who is
to John W. Davis, Dem
Gemtial candidate, here,
night and his physicians
g0 to a hospital He will b
meet Mr. Davis tomorros
aaid, however, that plans
tertainment of Mr. and
would not be modified.

Son of Woman Cha
with 2 Marder

A coroner's jury investi
Geath of Martin Sturm
mather is charged with the
her two: husbands, found
that he died of heart dises
a month before his death 8
struck by a baseball bat
fight.

Jainson &
“Style Without

Open T
Aftern

Business women and
hours for shopping
are very enthusiastic

s° wal .

Cool Silk Fr

| #5 92

582 844 FEDERAL REPORTER, 2d SERIES

vail against explicit Statutory language,
such as that which faces us here.

[2] Appellants’ real argument, and their
brief frankly concedes it, is that “Tthhis
appeal is a request to this Court to review
the position taken in Jn re Speck, 798 F.2d
279 (8th Cir.1986), wherein this Court de-
termined that State law determines wheth-
er or not a contract is executory pursuant
to Section 365.” Brief of Appellants p. 2.
Unfortunately for appellants’ position, one
panel of this Court is not at liberty to
overrule an opinion filed by another panel.
Only the Court en banc may take such a
step. We are therefore bound by Speck,
and we have no alternative but to affirm
this judgment.

Affirmed.

Lrecukd /- 0-89

George MERCER, Appellant,
v.

Bill ARMONTROUT, Warden, Missouri
State Penitentiary, Appellee.

No. 86-2593.

United States Court of Appeals,
Eighth Circuit.

Submitted Jan. 14, 1988.
Decided April 21, 1988.

Defendant, who had been convicted of
capital murder and sentenced to death,
filed a habeas corpus petition. The United
States District Court for the Western Dis-
trict of Missouri, Scott O. Wright, Chief
Judge, 643 F.Supp. 1021, denied the peti-
tion. Appeal was taken. The Court of
Appeals, Lay, Chief Judge, held that: (1)
the evidence supported the sentencing
jury’s finding that the defendant commit-
ted the murder at the direction of another
and, thus, the finding of agency as an
aggravating circumstance; (2) a venire

member unequivocally expressed his oppo-
sition to the death penalty and was subject
to being stricken for cause; and (3) admit-
ting evidence that the defendant was being
prosecuted for a prior rape was not so
prejudicial as to deny the defendant due
process or a fair trial.

Order affirmed.

1. Homicide 354
Evidence supported sentencing jury’s
finding that defendant was acting at di-
rection of another when he killed victim
and, thus, supported aggravating factor of
agency in capital murder prosecution.
V.A.MLS. § 565.012, subd. 2(6) (Repealed).

2. Homicide <=343

Even if evidence did not support sen-
tencing jury’s determination that defendant
acted as agent of another when he killed
victim, that did not warrant reversal or
resentencing where sentencing jury also
found unchallenged aggravating factor
that murder was depraved. V.A.M.S.
§ 565.012, subd. 2(6, 7) (Repealed).

3. Jury 108

Venire member’s response during voir
dire was unequivocal that he could not im-
pose death penalty and, therefore, juror
could be disqualified for cause, even if
there was no further inquiry on whether
venire member could follow law despite his
personal views. U.S.C.A. Const.Amend. 6.

4. Habeas Corpus ¢45.2(6)

For admission of evidence to warrant
habeas relief, state trial court’s error must
have been so egregious, under totality of
circumstances, that it denied defendant his

right to due process. U.S.C.A. Const.
Amends. 5, 14.

5. Constitutional Law ¢=266(4)
Habeas Corpus ¢=45.2(6)

State trial court’s decision to admit
evidence that defendant was being prose-
cuted for prior rape was not so prejudicial
as to deprive defendant of due process and
fair trial in capital murder trial and, thus,
did not warrant habeas corpus relief; state
court balanced prejudicial effect of pending

MERCER y. ARMONTROUT 583
Cite as 844 F.2d 582 (8th Cir. 1988)

prosecution against relevance of evidence
on defendant’s alleged motive for killing
another rape victim. U.S.C.A. Const.
Amends. 5, 14; Fed.Rules Evid.Rules
404(b), 609, 28 U.S.C.A.

Douglas S. Laird, Kansas City, Mo., for
appellant.

John M. Morris, Asst. Atty. Gen., Jeffer-
son City, Mo., for appellee.

Before LAY, Chief Judge,
McMILLIAN and ARNOLD, Circuit
Judges.

LAY, Chief Judge.

George Mercer was found guilty of capi-
tal murder under Mo.Rev.Stat. § 565.001
(1978) ! and sentenced to death after a five-
day jury trial. On appeal the judgment of
conviction was affirmed. State v. Mercer,
618 S.W.2d 1 (Mo.), cert. denied, 454 U.S.
933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981).

Following his conviction, Mercer filed a
petition for a writ of habeas corpus in the
federal district court. After the matter
was remanded to the state for further pro-
ceedings, Mercer renewed his petition in
the federal district court.2 The district
court ultimately denied Mercer’s petition
for habeas relief. 643 F.Supp. 1021 (1986).
Mercer now appeals to this court and seeks
habeas relief on three grounds: (1) insuffi-
ciency of the evidence showing aggravat-
ing circumstances under Missouri law; (2)
improper selection of the jury; and (8) ad-
mission into evidence of a prior prosecution
for rape. We affirm the denial of the
issuance of a writ of habeas corpus.

BACKGROUND

The evidence established that George
“Tiny” Mercer was drinking with several
friends at the Blue Seven Lounge in Grand-
view, Missouri. Karen Keeton, the dece-
dent, was a waitress at the Blue Seven

1. This statute has been repealed by L.1983, S.B.
Mo. 276, p. 922, § 1 (1986).

2. The Honorable Scott O. Wright, United States
District Judge for the Western District of Mis-
souri.

Lounge and Mercer mentioned to his
friends that he’d like to have sexual inter-
course with Keeton that evening. One of
Mercer’s friends, Stephen Gardner, knew

‘Keeton and persuaded her to leave the

lounge with him. Later that night, Gard-
ner brought Keeton to Mercer’s home. Af-
ter being raped by Mercer and Gardner,
Keeton was forced at gunpoint to perform
fellatio on David Gee. Thereafter, Mercer
twice asked Steve Gardner what to do with
her, and Gardner instructed Mercer both
times to kill her. Mercer then straddled
Keeton’s body and choked her to death
with his hands.

After strangling Keeton, Mercer put her
body in the back of John Campbell’s pickup
truck and ordered Campbell to drive. At
some point Mercer ordered the truck
stopped, dragged Keeton’s body out of the
truck, and hid it off to the side of the road.
As he returned from discarding Keeton’s
body, Mercer remarked to Campbell that if
he had killed “that leaky cunt 17-year-old
like I did her * * * I wouldn’t’ve been on
any rape charges and things I’m on right
now.” At the time Mercer was found to
haye raped and murdered Keeton, Mercer
was also being prosecuted for the rape of
Debbie Middleton.

I. Agency as an Aggravating Factor

One of the two aggravating factors the
jury relied upon in sentencing Mercer to
death was “agency,” i.e., that Mercer was
acting at the direction of Gardner. Mo.
Rey.Stat. § 565.012.2(6) (1978). Agency is
considered ar aggravating factor under
Missouri law because such a killing is not
done out of passion or rage. A murder
committed as another’s agent or employee
is often motivated solely by money or loyal-
ty. See, State v. Mercer, 618 8.W.2d at 14
(Bardgett, C.J., dissenting) and id. at 18
(Seiler, J., dissenting). Mercer argues that
agency was not established. Mercer also
argues that because agency was not estab-

3. Repealed by L.1983, S.B. No. 276, p. 923, § 1,
and replaced by Mo.Rev.Stat. § 565.032.2(6)

(1986).

584 844 FEDERAL REPORTER, 2d SERIES

lished, one of the two aggravating factors
used is now invalid and, therefore, his
death sentence must be overturned.! We
disagree.

[1] The jury had before it evidence that
Mercer turned twice to Gardner and asked
him what to do with Keeton. After Gard-
ner instructed Mercer to murder Keeton,
Mercer strangled her. The jury also had
before it evidence that Gardner, Gee, and
Mercer worked together at Industrial Roof-
ing where Gardner was a foreman. After
considering this evidence, the jury found
Mercer acted as Gardner’s agent. The Mis-
souri Supreme Court affirmed the jury’s
findings. Jd. at 11. This court must pre-
sume that the state court’s findings are
correct. Sumner v. Mata, 455 U.S. 591,
597-598, 102 S.Ct. 1803, 1306-1807, 71
L.Ed.2d 480 (1982); 28 U.S.C. § 2254(d)
(1982). Furthermore, Mercer has not intro-
duced convincing evidence to establish that
the jury’s factual determination was clearly
erroneous. Rowe v. Lockhart, 736 F.2d
457, 460 (8th Cir.1984).

Mercer now asserts, however, that the
brief conversation he had with Gardner is
insufficient to establish an agency relation-
ship as a matter of law. Mercer cites no
authority for this ‘proposition. Aggravat-
ing factors are not constitutionally invalid
so long as there is a factual basis for them,
and so long as the aggravating factors
channel the jury’s discretion. Zant v. Ste-
phens, 462 U.S. 862, 876-77, 103 S.Ct. 27338,
2742, 77 L.Ed.2d 285 (1983). We agree
with the district court that the jury permis-
sibly could have found agency.5

[2] While we do not disturb the jury’s
finding of agency as an aggravating factor,
Mo.Rev.Stat. § 565.012.2(6), Mercer’s argu-
ment on the issue of agency also fails
because there remains an unchallenged ag-
gravating factor. As a matter of state

4. The two aggravating factors were Mo.Rev.Stat.
§ 565.012.2(7) Depravity of Mind (“the offense
was outrageously or wantonly vile, horrible or
inhuman in that it involved torture, or depravity
of mind”) and § 565.012.2(6) Murder as an
Agent (“[t]he offender caused or directed anoth-
er to commit murder or committed capital mur-

= an agent or employee of another per-
son”).

law, where at least two aggravating cir-
cumstances are found, the failure of one
does not mandate reversal or resentencing.
Under Missouri law, when a “jury finds
two or more aggravating circumstances,
‘the failure of one circumstance does not
taint the proceedings so as to invalidate the
other aggravating circumstance[s] found
and the sentence of death thereon.’”
State v. Malone, 694 S.W.2d 723, 728 (Mo.
1985) (quoting State v. LaRette, 648 S.W.
2d 96, 102 (Mo.), cert. denied, 464 U.S. 908,
104 S.Ct. 262, 78 L.Ed.2d 246 (1983)), cert.
denied, 476 U.S. 1165, 106 S.Ct. 2292, 90
L.Ed.2d 738 (1986); see also State v. Gil-
more, 697 S.W.2d 172, 176 (Mo.1985)
(“Where two or more statutory aggravat-
ing circumstances are found by the jury,
failure of one circumstance does not invali-
date the other.”), cert. denied, 476 US.
1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986).
In view of the ample state law authority
cited above, the Missouri Supreme Court
was justified in holding that the failure of
one of two aggravating circumstances does
not require reversal. State v. Mercer, 618
S.W.2d at 10 n. 5.

Moreover, in Barclay v. Florida, 463
U.S. 939, 958, 108 S.Ct. 3418, 3429, 77 L.Ed.
2d 1134 (1983), the Supreme Court held
that, as a matter of constitutional law, im-
proper consideration of an aggravating
factor may constitute only harmless error.
The Court wrote: “There is no reason why
the [state supreme court] cannot examine
the balance struck by the trial judge and
decide that the elimination of improperly
considered aggravating circumstances
could not possibly affect the balance.” Jd.

Likewise, in Zant v. Stephens, 462 U.S.
at 891, 103 S.Ct. at 2750, the Court upheld
a death sentence even though one of the
three aggravating factors was held invalid.
The Court observed that imposition of capi-

5. Mercer does not challenge here the jury’s find-
ing that the murder was depraved. While he
challenged the use of the depravity factor in the
district court, he has not renewed his challenge
on appeal. Accordingly, we consider only
whether agency could have been found by the
jury.

MERCER y. ARMONTROUT 585
Cite as 844 F.2d 582 (8th Cir. 1988)

tal punishment is constitutional so long as
the aggravating circumstances relied upon
genuinely narrow the class eligible for the
death penalty. Jd. at 877, 103 S.Ct. at
2742. Despite the invalid aggravating cir-
cumstances, the jury made an “individual-
ized determination on the basis of the char-
acter of the individual and the circumstanc-
es of the crime.” Jd. at 879, 103 S.Ct. at
2744, In addition, the state supreme court
reviewed the death sentence and held that
it was neither arbitrary, excessive, nor dis-
proportionate. Jd. at 879-80, 103 S.Ct. at
2743-44. In the instant case, the Missouri
Supreme Court has reviewed the sentence
and found that application of the death
penalty “was not imposed under the influ-
ence of passion, prejudice or any other
arbitrary factor.” State v. Mercer, 618
S.W.2d at 10. Furthermore, the use of
agency as an aggravating factor narrows
the class eligible for the death penalty.
We agree, therefore, with the district
court’s decision to leave the finding of
agency undisturbed.

Il. Jury Selection

[3] A prospective juror who categorical-
ly believes that death is never an appropri-
ate penalty can be disqualified for cause
because such a juror will not follow the
trial court’s instructions. Wainwright v.
Witt, 469 U.S. 412, 438, 105 S.Ct. 844, 856,
83 L.Ed.2d 841 (1985). While recognizing
that jurors who state unequivocally that

6. The following exchange between Mr. Hamil-
ton (prosecutor), Messrs. Fiorella and Lozano
(defense attorneys), the court, and Mr. Bumgar-
ner is at issue:

Q [By Mr. Hamilton]. Mr Bumgarner, this
is a charge of capital murder, which means
that it does carry the possibility of capital
punishment, or the death sentence. My in-
quiry is directed to find out what your atti-
tude is toward capital punishment. If, during
the trial of this case the facts and circum-
stances were developed that in fact the jury
could consider capital punishment, would
you, as a juror, consider capital punishment
as a possible alternative?

A [By Mr. Bumgarner]. I don’t think so.
Q. Are you morally and religiously opposed
to capital punishment?

A. Yes.

Q. And you feel you couldn't bring back a
sentence of—the death sentence under any
circumstances?

they are opposed to the death penalty can
be removed for cause, Mercer argues that
jurors who, due to their religious beliefs,
merely equivocate on the issue of their
ability to follow the court’s instructions
cannot be discharged. Witherspoon v. Illi-
nois, 391 U.S. 510, 522-23, 88 S.Ct. 1770,
1776-77, 20 L.Ed.2d 776 (1968). Mercer
argues that venire member Bumgarner,
who was disqualified for cause, never stat-
ed that he would ignore the court’s instruc-
tions, but rather that he was fundamental-
ly opposed to the death penalty.®

The Supreme Court noted in Wither-
spoon that a trial court is permitted to
strike all jurors who indicate:

(1) that they would automatically vote
against the imposition of capital punish-
ment without regard to any evidence that
might be developed at the trial of the
ease before them, or (2) that their atti-
tude toward the death penalty would pre-
vent them from making an impartial deci-
sion as to the defendant’s guilt. Nor
does the decision in this case affect the
validity of any sentence other than one
of death. Nor, finally, does today’s hold-
ing render invalid the conviction, as op-
posed to the sentence, in this or any
other case.

Witherspoon v. Illinois, 391 U.S. at 522-23
n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in
original).

A. I don't think so.

Q. So regardless of how severe and aggrava-
ted the circumstances are, you don’t feel that
you could bring back a death penalty?

A. I don't believe I could.

MR. HAMILTON: Thank you, sir. I have no
other questions.

MR. FIORELLA: We would have no questions
of Mr. Bumgarner.

(Venireman excused.)

THE COURT: Any challenge for cause against
Harry Bumgarner?

MR. HAMILTON: The state challenges him
for cause.

MR. LOZANO: Our position on the previous
grounds, Judge.

THE COURT: The state’s challenge of Harry
Bumgarner for cause is granted. He will be
excused for cause.

Tr. at 169-70.

586 844 FEDERAL REPORTER, 2d SERIES

The Supreme Court, however, held later
that less extreme jurors could also be re-
moved for cause. Wainwright v. Witt, 469
U.S. at 424-26, 105 S.Ct. at 852-53. In
Witt, Johnny Paul Witt was sentenced to
death for murdering an eleven-year-old
boy. The conviction and death sentence
were overturned by the court of appeals
because potential juror Colby was removed
for cause. Colby had engaged in the fol-
lowing colloquy with the prosecutor:

‘TQ. Prosecutor:] Now, let me ask you

a question, ma’am. Do you have any

religious beliefs or personal beliefs

against the death penalty?

“{A. Colby:] I am afraid personally but

not—

“(Q]: Speak up, please.

“TA]: I am afraid of being a little person-

al, but definitely not religious.

“{Q]: Now, would that interfere with you

sitting as a juror in this case?

“{A]: I am afraid it would.

“(Q]: You are afraid it would?

“TA]: Yes, Sir.

“{Q]: Would it interfere with judging the

guilt or innocence of the Defendant in

this case?

“{A]: I think so.

“{Q]: You think it would.

“[A]: I think it would.

“{Q]: Your honor, I would move for

cause at this point.

“THE COURT: All right. Step down.”

Tr. 266-67.

469 US. at 415-16, 105 S.Ct. at 848.

In deciding Witt, the Court reaffirmed
its holding in Witherspoon and stated that,
as a practical matter, prospective jurors
simply cannot be questioned adequately to
establish unmistakably whether they could
vote for the death penalty. Witt, 469 U.S.
at 425, 105 S.Ct. at 852. Nonetheless, the
trial court, who is able to observe the vis-
age and demeanor of the prospective juror
may conclude that the juror will be unable
“to faithfully and impartially apply the
law.” Id. at 426, 105 S.Ct. at 853. Thus, a
trial court that dismisses a prospective ju-
ror because that juror will not follow in-
structions on the imposition of the death
penalty may not be reversed by an appel-

late court absent clear and convincing evi-
dence that the trial court erred. Jd. at 435,
105 S.Ct. at 857; 28 U.S.C. § 2254,

Mercer alleges that the district court
committed reversible error by failing to
inquire whether juror Bumgarner could fol-
low the law despite his personal views.
The Missouri Supreme Court, however,
found that Bumgarner’s response was un-
equivocal; he could not impose the death
penalty or at least would be substantially
impaired in doing so. State v. Mercer, 618
S.W.2d at 7. The district court found no
basis for overturning that factual finding.
We agree with the district court.

III. Introduction of Prior Arrest

After Mercer strangled Keeton to death,
he put her body in the back of John Camp-
bell’s truck. Campbell testified that Mer-
cer thereafter stated: “I wouldn’t be in the
trouble I’m in today if I’d killed that other
bitch on the rape.” After introducing this
statement, the State sought to corroborate
Campbell’s testimony by introducing evi-
dence that Mercer was indeed being prose-
cuted for raping Debbie Middleton. Mer-
cer had allegedly raped Middleton a month
prior to raping and strangling Keeton.
The State desired to introduce evidence of
the prosecution for Middleton’s rape be-
cause that prosecution would both corrob-
orate Campbell’s testimony and establish
Mercer’s motive for murdering Keeton, i.e.,
a desire to avoid being prosecuted for Kee-
ton’s murder. The State was prepared to
have Middleton testify but Mercer’s attor-
heys, wishing to avoid the prejudicial effect
of having Middleton testify, agreed to a
stipulation that Mercer was currently being
prosecuted for raping Middleton. Mercer
now claims that he was forced into making
this stipulation, and that admitting proof of
the prior prosecution violated his right to
due process and was fundamentally unfair.
We disagree.

Both the Federal Rules of Evidence and
the Missouri Rules of Evidence allow evi-
dence of prior convictions but generally do
not allow into evidence prior arrests. See,
€.g., State v. Skinner, 734 S.W.2d 877, 885

IN RE AHLERS . 587
Cite as 844 F.2d 587 (8th Cir. 1988)

(Mo.Ct.App.1987); State v. Hansel 629
S.W.2d 509, 510 (Mo.Ct.App.1981); Fed.Rs.
Evid. 404(b), 609. The trial court admitted
the prior prosecution into evidence on the
theory that it was relevant to Mercer’s
motive; Mercer had to kill Keeton in order
to silence her so that she would not testify
against him as Middleton had done. Fur-
thermore, Campbell had testified that Mer-
cer said he wished he had killed “that leaky
cunt seventeen-year-old” as he had Keeton.
Introducing this stipulation corroborated
Campbell’s testimony and explained the im-
portance of Mercer’s statement.

[4] Whether a prior prosecution for
rape should be admissible evidence is a
question of state law. Our review, as the
district court noted, Mercer, 648 F.Supp. at
1026-27, is limited to determining whether
there has been a violation of Mercer’s con-
stitutional rights. Manning-El v. Wyrick,
738 F.2d 321, 323 (8th Cir.), cert. denied,
469 U.S. 919, 105 S.Ct. 298, 83 L.Ed.2d 233
(1984). In order for the admission of evi-
dence to warrant habeas relief, the trial
court’s error must have been so egregious
that it denied the defendant his right to due
process. To determine whether the defend-
ant has been denied due process, the court
must look at the totality of the circum-
stances, Ellis v. Black, 782 F.2d 650, 658
(8th Cir.1984) and decide whether the error
was so “ ‘gross’ * * * ‘conspicuously preju-
dicial’ * * * or otherwise of such magni-
tude that it fatally infected the trial and
failed to afford petitioner the fundamental
fairness which is the essence of due pro-
cess.” Maggitt v. Wyrick, 583 F.2d 383,
385 (8th Cir.) (citations omitted), cert. de-
nied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d
183 (1976).

(5] Prior arrests are generally not al-
lowed into evidence because of their ex-
treme prejudicial value. State v. Mallett,
732 S.W.2d 527, 534-35 (Mo.), cert. denied,
— US. —, 108 S.Ct. 309, 98 L.Ed.2d 267
(1987); C. McCormick, McCormick on Evi-
dence 557-58 (Lawyer’s ed. 1984). Excep-
tions have been generally recognized, how-
ever, where the operative facts demon-
strate a motive, plan, scheme, lack of mis-
take, or identity (as in the case of a signa-

ture crime). Hardy v. United States, 199
F.2d 704, 707 (8th Cir.1952); State v. Mal-
lett, 732 S.W.2d at 584-35; State v. Shaw,
636 S.W.2d 667, 671-72 (Mo.), cert. denied,
459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188
(1982); McCormick on Evidence 558-64.
In this case the trial court balanced the
prejudicial effect of the prosecution against
the relevance of the prosecution on Mer-
cer’s motive and Campbell’s statement.
The trial court found that the prejudicial
effect of that evidence did not outweigh its
probative value.

We find no error that could be said to
have fatally infected the trial which result-
ed in the denial of a fair trial.

The district court’s order denying habeas
relief is hereby affirmed.

W
° 3 KEY NUMBER SYSTEM

In re James R. AHLERS and Mary M.
Ahlers, Debtors.

James R. AHLERS and Mary M.
Ahlers, Appellants,
v.
NORWEST BANK WORTHINGTON and
Federal Land Bank, Appellees.

In re James R. AHLERS and Mary M.
Ahlers, Debtors.

NORWEST BANK WORTHINGTON,
N.A., Appellee,
v.

James R. AHLERS and Mary M.
Ahlers, Appellants.

Nos. 85-5396, 85-5397.

United States Court of Appeals,
Eighth Circuit.

April 25, 1988.

Appeals from the United States District
Court for the District of Minnesota; Don-
ald D. Alsop, Chief Judge.

Before HEANEY, JOHN R. GIBSON
and WOLLMAN, Circuit Judges.

— of the payroll sides st 3000

gathered shortly after the shooting.

Patrolman Michael O'Connor, who was killed.
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peaieug wit Wee

* geeteatdene ot ete st by Murtite.
South Broadway, showing crowd
photograph at the top is that of

Below, at left, is Patrolman

ALL RIVERS. ARE FALLING
WITH CESSATION OF RAIN

Off precast Is That Big Streams
il Continue to Recedeo ;

Slowly. .

With no rain for several days, all
the rivers in this section are falling
and the indications are that they
vill éontinue to fall.” The official
river forecast is as follows:

The Illinois will fall slowly and
che Osage will fall; the Missouri be-
law Lexington will fall; the Mississ-

ppi from Louisiana, Ma, to below
Yhester, INV., will-fall. The probable
all mm the next 24 hours will be:
drafton, 8 of a foot; Alton, 1.5; St.

“ouls, 1.5; Chester, 1 foot. The
Weramec will. fall.

The stage of the Missouri at &t.
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“ty

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|EAST CAPE LEVEE’ BREAKS,

ROAD UPHELD IN SUIT TO TEST
POWER OF LABOR BOARD

Foderal Court Refuses to Dismiss
Jemporary. Injugction Granted
by Landis, .
By the Associated Press,
CHICAGO, April 22.—Federal

Judge George T. Page todgy upheld
the Pennsylvania Railroad in its sult
to test the power of the U. 8S. Rafl-

road Labor Board by refusing to
dismiss the temporary injunction re-
cently granted by Judge Landis re-
straining the board for censuring the
road for violation of the board's de-
ecreet. Judge Page, while refusing
to dismiss the temporary injunction,
ordered a conference of attorneys
for both sides, and the case probably
The beard
ordered the road to hold new
tions among its shop craft emp)
some time’ago and the a: rehoges
to do so. The board pPoposed to is-
gue a decree ceneuring the carrier
and the Pennsylvania obtained the
{njunction to test the board's power.

FLOODING BiG ILLINOIS AREA,

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‘This Compictes- Laundation of Ha
009 Acres Threstened When First
pap eels A
By the Amociated! Press. _ ff,
McCLUBE, nih, April,
levee of the East Cape ae
trict ‘gave way this aftern and
the swollen Mississippt.
hundreds of acres of ¢
completing the tnund nm. of pegoete
acres threatened whet the first
break oocurred -. aah seation }
days pee.

nttaiien é

408 Relatives to Flomor “‘Ptonder.
Los ANGELES. Cal, Apri!’ £2.--

Four hundred relatives of John

Rertnett, who. with elght chiltrasa,

|| Ewo same pads ale osu ee
payroll robbers whem they interrupted in the act of- holdin = ee ‘2 a Pos
the office force of a branch of Morris. & ‘Boshphsy, pen ae

9000 Bouth Bropawsy, et 10130 this morniyg. ‘ Roxy ig EI
or more shots were’ oF ta cbipnun tokens wea : a

| fa waiting antomobile, he Ip fon St a 0 The.

policemen are? sihe ya [bBo

fe
| Patrolman Micuenl O'viner, a3 yeors at 420 Bis

fi : “3 -*

EAS ;

avenue. ud a2 i 1 tye Hes.
"Patrolman Paras Benes 62 years a, as ‘elimi:
road. Peg a Bo oe ‘ ne
|The | ‘woukded, pecan is Louis ke ‘rela as ‘yeaes 5 we, He ;
“4 Gilbeeven Cathy Piniag Uh ete gabe PT bite. Dre i
O{Connie 9 he wev Erion fa BEE: ble g¥er Be BE: RE ES Shes o ¥
MiB" FO5": ‘ac ot hk £54 pounag [hired BEB, bet Urea %

‘pleded whe juss 2) Beyshl “ge
FHF the bytiot Bisse °;
°F tat. bheca ude: Ait qoreiags.,' Weer

j Bective. i
We euisds be Raeteb

Emap they got reer wee :
the rich! cide of che ctipre’, Hen Eats
or th rer cavolesr PIN BP PIT Rash
Pigist Hered with “yay fedh. a0
wheet. “t ttred the three sinote ’
maining 8 my reveirer inte the ses
end of tha fobherd’ cer.
fdi¢n’t knee which machigs ty
at, there we ¥ t&
He | died at the city . heaphas hg 5 jthee aineet. de hd raehe ws ae
~~ “a AS ahh met’ erat ta hte ane $17

ld was from, an angie. ony rest bystandem, ao made nF Sy id
Wigh autemobiie to abasl 22. 4

pullet entered is the rear of this j
nd/dame gut at the | sah ete bandits’ aiachions were ie

and as “Rumer ox” te: setae
him, from | other’ Pines! FOR

on ihe force, wae tot terensh | “os
head and te belied. te haw ‘beep
almost Matantly wiltee, fy, Y ee |
‘Menge! | wae rmbt | Yenees
ices, One bullet canna hits jena
at ht fempic: be gauged

he
bacers lodging om thé war of hie
skull, | A: Hd bye . went
+

through spin right forearms, ent 8
third went throne h his | righ ge

ams

St Foret. ?

sen

aoe

2 seg ORR

right shoulder

fromt of the e shoulder, It is net j from ths ourh ints the Seaffic, a2 en Big

belfeved to have yenetrated bis luxs- |T thin. 2 gave bre Of the men PE eer
> : mai- jim me Wat thie dont Repeine irsdcp F'4 ee

formed me ‘Aftehmy revolver See mos ;

Station. ia |Z Teechemetel whe deft char +

patrolman, * irae biliclen go: them Batt 3

ment for’ # tig ‘pis

as @ probationst,

men whe : the amonianaé.”

were p the empityes wher | paircimey. dil oid hee

the polices? palied fronf the @out® ire new tie mar die obete

Bide f £o., acrons' fhe wtreet, beerudded, got to tee Hi

started tg énter the plant. jrar Ae Aid net ee kim, iaiohe

After ting them fern the rot jis rotors’ One RE bbs; Pe
wal Jone, with « westirer-beaiet-Se>.

gutiand jampes inte a :
: é theuent it wane OAS hearers Sg

ing awermebile and

ge the practice tor drivers’ ine aR. - 3 Heras
lectiags it be reeeived at ie seta tis od dee Haetiors. :
bray on Bataréay, and F 18]: peaits “Ql Abe relies ail
5UPi weir robber Were & of Fy, shhsequer ‘pxokheg’ (or

Rots Were ‘pelated “i Fast
peporters by Orerieh G!
hs at the weyers Serb Sen.
: e tax: snpiepes ef he: * hr
Mengel Sierert. Sting neki..288 val 2 eS
pther eny Ot ivart of tice Hedrels Mere” ‘nein
, , although ip tha offer, s Pyigem RAVE, ny AS aa
be, wounded two room telecon og Mig pate st cee,
_ demerying ret bers: watgent tee Ss
: fee. One ef ther: fore *

of Solweet the policemen | > Three up Pour "pawl Bien ty
was ddacribed to & iy an
Pust- , by Patrol.

ig, after ke had received
ney trentinegt at ihe cits’ Bos
(ge LORS:

ané hoped to roth this
al they Were too Berl 1
ation eine |
etolvede|

oo t
os {Ered ota, Meld &

but it's not kpown ®

RPS.

ti es! aes
at * pets,

: sista th

fied with emia

see O'Copner, J thie ik, ee war inane,

came here from Ipeland ia the eariy
‘"te, wily Bold @ reunion today wal j
rewnall, nerth of bers. Of veri

466, 246 are Girect dezoer tants af
‘Varinett.

ye piece Where the band, Wee. |
sew Menge: ff i Maniatarh are.

pri we A oYeer Fee at easy
“gouge! # $c ete Asescd fa om

. pig-=s tires AT Pea

mee, Ws Gitte.

Be nga Te” eii=
Bc 24 2

'
Sarco appt ears gee erent

4 e
MERRILL, Charl RY, H
9 aries, and PINDLE uch, h
’ PN, hanged St
: , > ®
Nixon a .
f a S . cash 4 as ee
‘> en ‘ , . n 5 PO A v
‘ oan . :
a & onfn
pez 0 al SOU
: on tution sade . :
A ” ne d *.
. pou! 4d * d ‘
ted by ¢ 0© t Ci
23 OIMnfmDon 2 ’ ” * ) OU G
’ : noto ° Q as O
fel fh A Broo
ped on ard pO a1 . *
to befo > n ry v
a Bi ' aoe 1 ps A v
ad o ° Broo 0
= O80 r ° ond
Gg ed * O CO u ‘
es era Of ~ 0 a p “
A 5
fy * t * () ca
sa a : + 2 ¢ _
3 4 - . 0 6, 816
~) no : Broo
d * v
ome 0 z zi
—- n D 8 4
re 0 A 0 onzOu
G polic Mh Baia MN : 7
; . oto
« 7 oe A
: om?
‘ ‘ ‘ nd
oh ‘ O
Po a ad ~ ~ " . : ;
0 G U7 « a * “ =
ny 4 BOOT a q
d
’ ¢ . on ‘
oh ‘ . Ce DO U at Y ;
. e na ‘ DG Oa BU _
| awed 5 . 26 = hy 2B BD 0
m ‘
o ' n [$00 o OU . i
Roc * ’ nee 01 ‘ OO
A ord ad Got 4 ote 5 0 s lead D
9 et
ry “ bs r m iy e
q D con peri 0 ~ “
> mone . 4b Gove 0 ~ au
. Dal ‘ oi ite ae vw . : :
» Gov RO e ’ «Te Ci G
i idee. men 0 A J ees po o
matt . DL
: of the Dep i G aes
COD by ou
. a Ag A DO
Ren a ea < Gre 6 nd D
ey ae D id sy3 tyaghon a
A : ae ‘ 5 a prospec e O
« t f0n . $ Mu
nG ° : RAITIOU © Gove ‘
ru re ati become ¥ ara B 10 2
‘28 fare ee ry . : ~~. *
al Bed on 2 M
pai ha ais 6 imstry ag u notH
Hie ks A Tied | man i
e. Va c % a?
BA y
oat os
r ay Va
m4 ie § ; ae ,
et a I> = ue * & ee
% f
s
%
‘y

Louis, Me., July 18,
192h.

* MERRILL, Shp Sherigs, te We 2 Pcl if es

St. Louis W ith the Associated Press News Seretce es

"Soereeagee cher pen

DAY EVENING, APRIL

of Revolver Battle After Holdup;
emen Who We re Killed; Wounded Officer

Shooting Follows Hnkdup. ‘of N
sale Branch of Morris Paci iy
at 3000 South Broadway by
Young Men—Policemen Fi

‘Fire—Loot Less Than F100,

| cs bla een

payroll robbers whom they interrapled in the act ef-f
the' office force of @ branch of Morris & Gomphiy. 7
8000 South Brosdwny, at 10:39 this morniyg. (Benois
{lor more shots were ‘tited by the’ policemen. the robbers:
Pla waiting actomobile, Their loot 1 Waa lect Shan sonst

~ policemen are: sys | A eee
Se Patrolman Michael o'er, a3 zen BR, Bs
7 avenue. | 4 "ye Ti
= " Patrolman Bernat ©, Henge | 62 years 0 a, & iA ¥
= ond. ee aan?
2 Ta A ‘ r joe
oe POSIGA WAR a The. wonhded, pe SK nab is Louis A. yieia, is year
= < Ad Giles REDUCES To - cp Dekel br phi
“a - = “bian Disonter rs aah 2 OfConnte? hs wastes» BR oe ghie ever #4, af: wr:
So Experd 5Ou. Mtge FS ‘inolot He - ie pounds | rec agelt, EST f
<j 22.—A_ river has and ‘qs CRumber our te etetingriah | lected whi 4:
4 “ugh Monastir in SES jsruece the bys:
: great munitions ; him, from jother ‘Pineal TOgirore Hat. Fetecee Wid”: Ae gs: wid
aaa Tuesday, check- on ihe force, Fae, fei terete the | tective,
a osement |. a head asd is beliees. te Baer been j Woosiges by ke a
ng on there, sc- | £ ray yet + *Thap they gol. mo 2
, almost Mnetantly BY Nie ew, J * e 4
aching Athens to- i Bo 4 tha rights! eule of ihe chest
roe ‘ wae mrt tr “eres [2 tn way revolver penis
is going forward Ond bullet eoledss iit howd Inieiat Nerd with my tet
saat numbers were sight temple 6¢ rauged jwnoct. % “fired. the
4eath list will not bac vara, "rede tr the ear of Bis! maining # my eaverer |
st reparts had it. skull. ° butk; -Wentlend of tha robbers’ scm
| that the total through . ie wiht, torent, ant ataign't meas which | y
ld not exoeed 500. third went thraneh hisirigh mend. fat, there were ‘er soaKuy
— He. ‘died at the city heapkar i: fF pete x revit
22.—The explo- te hs of Poll b P. th. a OY Gig “wivt want te hit
was the work of| . Scene of the payroll robbery st 3000 en oo a Hats wes abd (rom ~~ 4 ts stendeee, 98 F Py
donists, according | gathered shortly after the shootin rhe t the is that of bullet entered # the rear ‘ ah eutemobiic’ te &
ya ) g- P. at the top o ht shoulder.and came out at the | paawe he bandits’ minchlot
8 dispatch from} Patrolman Michael O'Connor, who W8s killed. Below} at left, is Patrolman Pn of the e bhoulder, 1k is not | freraths ourb inte the
h Bernard Mengel, who died later; at right, Petrohman Louis Held. belteved nd ypnetrated bis buss. [7 thins t ga one bf Lhe
AN OFFICER | LUN cannon gee Bengt) Te gla | ater crete”
f , * y Fers tr €
AN GFT AU RIVERS ARE FALL. ROAD UPHELD IN SUIT TO TEST [formed ment Bs zs"Totiay a (2 reechcSuall so!
, Po H bart.) more PUGS gcd KF “|
ULLING OFEEUn) WITH CESSATION OF RAIN +, POWER OF LA LABOR BOARD | patron out of the appar joerg: Bete wan une:
ment for: é time and hed e .. topen END Breos, o: Hifi

the strike bal-
e sixth biennial
»artment, which
+ today.

ike, and I feel
te solidly for it,
or the action of
decisions of the
‘y Labor Board,
(resident of the
Jepartment. e
now has severa!
he contraét, or
pending. It has
decision would
‘r the conclusion

‘6 hearings.
» arbitrarily re-
fiance’ of the

“They have re-
system and re-
ng-out system,
erfuge by which
or Board deci-

vored peace be-
given by the
rd that no fur-
@ be considered

am sure, the {s-
showdown. 8o
ned, it is a fight

“he question was
strike or not to
that the result

known within

t the roads are

rulings by let-

to contractors.
e been getting
vr.” said Jewell.
nd out whether
jto do so. The
remembered, has
pree its decisions,
jupon the influ-
ion.”

NAKA BREAKS

louth of New Or-
bodied.

’

B, April 22.—A
pank of the Mis-
°oGrove, about 80
city, broke today
shboring planta-
t of the embank-
»vernment barges
terials to combat

-g jatched from this
“<< | the break.

inundated con-
nt Suger planta-
oves.

RULING.
FOR ART

Page One.

nt Aloe of the

n joined his dis-
8

those people out
{l that money,” he
pne building, and
ne amount as the
' eeveral hundred

pr Japanese vases

_f8t $25,000 each,”

Gunn sald. “And
but pay.” A dis-
nd Mayor Kiel
ind Nolte to ask
m the validity of

Purchases,
vouchers showing
rchases recently
of young wom-
h century marble
Settiguano, $14,-
1et, $12,500; por-
, by Glanpedrino,
of the fifteenth
st, $4000; French
plate of the Au-
0. -

ating that they
ich Washburn
n Ambassador to

- {O'Connor's revolver,

which had
fallen from hia hand tosthe platform,
and fired the A remaining bullets
toward the robbers’ car.

Olsen added that Patrolman Men-
gel, across the street, fred one shot
at the robbers, and miased, where-
upon one of the bandits picked off
the polfceman with a single shot,’
hitting him in the right side.

, Scene bf Holdup. - .

The egtablishment held up is a
“cooler” !and aferiboting plant at
the southeast cérner .of Broadway
and Pestalozzi streets, and occupies
a two-story brick building setting 40
to 50 feet back! from Broadway to
allow a leading gpace for wagons.

The office, & gmali room about 10
x18 feet,'ts partitioned off by glass
just to 6 right of the Broadway
entrance to the building. The rob-
bers’ automobile, the license num-
ber of which began with “19,”
stopped the Broadway car tracks
in front qf the plant at 10:80 o'clock.
Two men jumped from it and ran
into the ‘plant and through a door{
having a’ glass window, into the of-
fice. ‘ F

They compelled the four men in
the office to hold up their hands
and demanded, “Where's the
money ?” .

Garden told them fhe men were
paid off a half-hour previously. The
robbers did not believe him, and
nervously started searching for the
payroll. One of them took about
$80 from the cash drawer and went
to the open safe, which was empty.
The other had hurriedly searched
Berkel, missing a $10 bill, and had
his hand. on Olsen's billfold, con-
taining his pay, when Policeman
O’Connor fired twice at the robbers
through the glass office door. One
of his bullets passed between Rer-
kel’s hands and shattered the shade
on a light just above his head.

Both robbers returned the fire
through the glass window and O’Con-
nor fell, mortally wounded.

Patrolmen Mengel and Held en-
countered the robbers just as the lat
ter were emerging. ;

Robbers Escape in Auto,

The robbers and the policeffen
opened fire at each other almost
simultaneously. The patrolmen fell
wounded and the robbers reached
their autompbile in the middle of
the #treet, Headed north, .

The-engine of the automobile had
been kept running by a third man
at the-wheel and it Immediately
dashed away, turning west in Pesta-
lokz1 ‘&freet’.

About 30 detectives in automobiles
were at the scene in a short time
and they immediately scattered
about the city in search of a green
Paige automobile with a license tag
starting with 19.”

Chief of Pojice O’Brten and Acting
Chief of Detectives Walton went to
the scene to take,charge of the in-
vestigation.

From different witnesses the po-
lice obtained Various descriptions of
the automobile used by the murder-
ers. One man said it was a Paige
car, another said {t was a green-
painted Oldsmobile and still another
gave a license plate number. This
number was found to have been is-
sued at Kansas City. The police
doubt that a Kansas City car was
used. The East St. Louis and St.
Louls County authorities were noti-
fied to keep a lookout for men in
an automobile angwering the general
description of the car used by the
robbers. :

Soon after the shooting two men
in a green-painted car were stopped
in the West End and taken to the

who saw the robbers said they were
not among the rpbbers. The two
also established that they were else-
where when the me was com-
mitted.

. When Chief of Detectives Hoag-
land heard of the shooting he left a
sick bed, in which he had been since
yesterday morning, and took per-
sonal charge of the detectives’ phase
of the {nvestigatien.

A General roundup of criminal, |

Fee ee eae

radio studio, and asked the person
answering to Hold the lige a mo-
ment, A moment later, cleat end
distinct, the speech transmitted by
radio to Festus came back by regu-
lar long distdiice’ telephorie ifito the
very room where the spéaker sat.
Reporta from the immediate vicinity
of 8t. Louls ‘also were that the
speeches ‘and music age over espe-
cially well, and many compliments
wére teléphohed in‘to the partici-
pants in the Program. . Been.

Fieser’s talk last night was espe-
cially timely in view of the flood
conditions in. many of the Middle
Western and Eastern states, and
was heard with much interest. He
described the way in which the
American R»d Cros@ conducts its
relief work in disasters such as that
now prevailing. A boat now ts run-
ning inte Cairo, IiH., constantly, he:
said, picking up the survivors of the
farms and villages inundated by the
breaking of the levees along the
Mississippi and Ohio rivers, and re-
lief stations are maintained in all
sections affected. : ,

| ells of Disasters.

In his own division, th dest
hit section of the United States in
the way of disaster, he said that the
Red Cross was on the ground within
12 hours after the great flood at
Pueblo, Colo,, last summer, and in
less than 12 hours after the terrific
cyclone in Arkansas and Texas last
fall. In the Southwestern Division,
which comprises seven states, he
said there have been a total of 61
serious disasters aince the Armistice,
or three every two months. A small
town in Kansas visited by the re-
cent floods was practically washed
away twice in one month, with a
total property loss of over $1,000,-
000. 3

Fieser said that the Present flood
conditions were requiring aid from
disaster relief workers in four Red
Cross divisions, thea Southwestern,

a ie

Central, Southern and Lake divi-:

sions. Describing the kind of relief
given he spoke of a man tn Corpus
Christi, Tex., whose entire property
loss was a $5 hat, but who had a
serious injury to his eye which re-
quired considerable expense for med-
ical treatment. This the Red Cross
paid. Another case in the same ter-
ritory was a little girl who sustained
t fractured spine which caused com-
plete paralysis. Nearly two years’
treatment at Johns Hopkirgs Hos-
pital in Baltimore has cured the
child and she passed through 8t.
Louis last night en route home.
Givea First Aid Rules.

The second speaker was Commo-
dore W. E. Longfellow, head of the’
life-saving division of the American
Red Cross. He told how to make

‘|the clothes of a person hurt in an

accident into a stretcher, and sug-
gested simple rules to be followed
immediately, while waiting for the
arrival of the doctor, for the victim
of suffocation—which, he said,
might be caused by gas, electric
shock, strangulation and several oth-
er things, as well‘ as drowning. He
decried the old idea that a drowning
man must be punched in the nose
to be rescued, or rolled on a barrel
to be brought to life, and said that
present-day swimmers were taught
emergency work as well as 8wim-
ming. In closing he urgently ad:
vised swimmers to learn to swim
efficiently, so that in time of need
they can be of the greatest service
to others.

The music program broadcast last
ing by Station K § D was a dis-
tinct success, artistically as well ag

otherwise. A group of violin num-

packing company, where employes}#*"® Played by the Norwegian vio-

lfnist, Arne Arnesen, solo violinist
of the Hotel Statler concert orches-
tra, and accompanied ori the ptano
by Seth Abergh, director of the 6ame
orchestra, went out by radiophone
in splendid form. The two artists
gave thoroughly satisfying rendi-
tions of the compositions presented,
which were the “Berceuse’—from
Godard's “Jocelyn,” a group of Nor-
wegian folksongs arranged by Arne-

wen, Drigo’s “Serenade,” and the

WT tow bs ame te’ jp . ee, we

e PAUSiveat Swseew

An. | ‘
numbers—Columbia
| H

ss taliatiemteal ae

Musical

seléctions. - tees
Tenor solo— or
a) “Bomewhere a. °

ice Is
Vy, Caning” ..a5's.. +9 - +, Tate
fr Jace-

‘(b) “Cradle Song”
fr “Tyn seer ae abe aceh

| * .Rdwarda'J. Troy, |

Addrese—“The ee of
Basedal"— | 2 Y
a ord Be George Sisier. . t
‘Soprano'solo—' (°F. ’
- (a) “Carissima” :. . Penn

see !
(b) “Spring Is Here”). Brown
| Mrs. Edward/Achard, :
Baritone solo—Aria, ey
Star” from ‘“Tannha tame!
, |. [Wagner
Urban L. Dames, :
Adfiress—"What the Municipal-
’ thy Is Doing to Fight Tuber-
quiosis”— pow gs 4
| Dr. Joseph F. Bredeck. |;
Duet for soprano | and | tenor—
Prison Scene from “Trovatore”—
{ | os] Verdi
Mrs. Achard ard Mr. | Troy.
Tenor solo— i }
(a) “From the Land of the 8ky-
| Blue Water’.....Codman
(>) “Answer"— |
Alfred ‘Gi Robyn
Edward J. Troy,)
Trio for soprano. tenor and bari-
tone— |
"Te sol quest’ Aninia’’.. Verdi
Mrs. Achard, Mr. Troy pnd Mr.

om ee ee

EX-PRIZE FIORTER FINED $200
“ON CHARGE OF STRIKING MAR

Two Other Employes of Realty Firm
Fined $20 Each for Attacking
{ James A. Hodges.

Elwood E. Evers, 4502 Eaciede av-
enué, sales manager of the Harry
&. Prettyman Realty Co.,) was fined
3200 and two other attaches of the
firm: were fined $20 each on charges
of common assault’ by Provisional
Judge Meigs in Division Np, 3, Court
of Criminal Correction, |yesterday,
after James A. Hodges, a real estate
dealer, 715 Pine street, testified thr
men attacked him Sunday, March §.

The other two men fined were
Kobert Schapler, 4034 Enright av-
enue, vice president of the firm,
and Fred J. Fanain, 8§26A Ohto
avenue, general manager. Like
charges against Harry E. Prettyman,
head of tho firm, were disniigsed.

Hodges testified that on the aft-
ernoon of the attack he went to sel!
some lots in a tract adjoining a@ tract
of the Prettyman firm, in’ the vicin-
ity of 6000 South King’s highway.

Hodges testified Prettyman, Fan-
sin and Sehapler held im while
Evers struck ‘him, and that when
Prettyman let go his hold, Evers
held him while. Prettyman struck
him. All of the defendants except
Kvers denied they had ‘httacked
Hodges. Evera said he struck Hodges
after Hodges had cursed him and
had hit him with a stick.| This was
denied by Hodges. Evers, in his
tebtimony, said in answer to a ques-
tion, that he was a prize fighter 10
years ago. pt

“Blind Boss” Remembered.
By the Arsaociated Press. ; i.
SAN FRANCISCO, Aprif 22.—Mes-
ages of condolence to Mrs. Christo-
pher <A. Buckley, widow of “the
blind boas" of San Francisco, who
Gied Thuraday night at his home,
have been received from Cherles F.
Murphy, New York politi¢al leader;
Tom Taggart of Indiana, William A,
%rKertot; of the Pinkerton Detec-
ive’ Agency, ‘Congressman Julius
Cahn andsmany other frienda of the
icturesque political leader,

tion is cc
signed by
and sent
the Port:
Ge Janie:
. “Becau
dy, est.
of makin,
do de Ne:
we were
Peter-St.
stepping-:
Verde ye
Rock in *
flying. &
from Cap
be consi¢
achieved
“Untfor
arrival tr
re BO, *
possible t
out, the :
greatly r:
theless, t
was cred
tion. P
Portugye
deep sort
plete the
them pe:
able proc
given.
(Signed)

The P.
rine, Vict
cablegrar
sador in

“The ¢
other hy
Rock in c
complete

From
comes t
named t
shipped <¢
Portugues
cruiser R
on board
the Island

REPUTED
WOUND

Policep
at4p.o
‘of Char
street, hz
home ar
seen a ¥
back doo
woman, :
28 years
known to
Twelfth :
bullet we
muslier
taken to
hia ‘cond:
ous,

Neight
men that
automob
women ¢
and that
from the
that a di:

Blood*
the front
ridges ar
found on
four em'
kitchen £
$16 Wak
wounded
the two
man we
loaded r
seat of |
Mrs. Me
ence's Ww
police sti

Quern’
yh LOND(
Mourtba’
of Spain,
tion last
considere

“apon me. When >
at fight in which
9 inflict punish-
doubtless be able
ings in the way
nm my purpose.
ng, neither you
8 will be able to

is that I ever
urchase political
3 upon the public

matter: of barter, in which I
use the people’s money to b-y
somebody's vote; in which the
yaccount of my political ex-
penses would be charged to the
‘taxpayers.

“Of course, you understand
that I have at. all times support-
ed and stand ready to support
any measure which will help the

¢ disabled veteran.”

N HYTE
BURGLARY
* STUDENTS

rshil’s Buckshot,
Being Initiated
i Fellows.”
Presr.
, April 22.—The
rich agt the sedate
Granvilie on edge
.» and caused the
ont body of Denison
lined up and ex-
shot wounds, were
Dr. E..C. Brock of
Department.
who was hit by the
Marshal Shipley’s
George Phyphers,
4ts, O., a senior in
His connection
ries was discovered
yere for treatment.
3, he told Police
nnor, were perpe-
> of “hard fellows,”
* good for nothing
member of this or-
must “pull” a job of
rs said. Nothing
on these jobs, he as-

sine members of the
ug poker Wednesday
e one suggested they

ennui by smashing

had things

’ .. rs said.
the Marshal, and
to chase us. Finally
ont window of a jew-

then I got mine.”
ing held for the Mar-
je. He said he was
ean Paul Tanner of
and lived at the

oun
ye 6

$10,000 SALARY
CHURCH ECONOMY

rant Helps Vestry to
deficits—Several Sal-
rkers Dismisecd.
4 Preas
, April 22,—The Rev.
- Grant, rector of the
Ascension, has volun-
a 50 per cent reduc-
ary to help his vestry
nses and meet & large
action decreases his
da’ from $10,000 to

me known today that
sd church workers
smissed and that the
‘ged enough money to
.dait for the current
Closing of the parish
reatened unless this

WN April 22.—
| f this city to-
i indidacy for

*hio on an independent
ig not going to be
-@ fire’ he said today.
me of the features of
: campaign. Three
election, he said, he

private train for &
iy “with a brass band
“ht. car loads of red

FORMER SENATOR DEPEW
‘TO BE 88 YEARS OLD TODAY

Says World Is Filled With Mighty
Good People—Refuses to Discuss
Prohibition.

By the Aseociatcd Press.

NEW YORK, April 22. — Former
United States Senator Chauncey M.
Depew, who will celebrate his eighty-
eighth birthday tomorrow, is still a
hard-working optimist,

“I see more hope for the future
of the world on my eighty-eighth

birthday than on any in the last sev-
en years,” he said. “I am entering
my eighty-ninth .year jubflant. 1
am pretty well satisfied with this
world and mean to stay in it as long
as I can. I have a feeling that it
is fillea with mighty good people. It
has always been to me @ garden to
be cultivated. We can’t pull up the
weeds, but we can find some places
where we can grow the things we
like—men and women, boys and
girls, for instance.”

Apparently hale and hearty, De-
pew made his daily visit today to the
offices of the New York Central Rail-
road, where he presides 4s chairman
of the board of directors. The for-
mer Senator discussed many subjects,
but tabooed prohibition. f

“7 Always refrain from discussing
that subject,” he said, “because it
only makes people mad. I prefer not
to say anything about it. I want to
keep all my friends.

“T never drink whisky,” he con-
tinued, referring to his personal pref-
erences in the matter. “I found out
early in life that whisky and. brandy
and such drinks were very detrimen-
tal to good health, and I left them

alone. JI was accustomed to drink a
Httle champagne daily with my
luncheon.’ \ :

Insigting thet there were formu-
la for old age, he counseled moder-
ation in all things. :

“Don't overwork,” he said. “Don't
overplay. Don't overeat. Most of
all, don’t overdrink.

“Lean to smile.”’

SAILS FOR GRANT CENTENNIAL

Steam-r East St. Louis to Be Part
of Harding's Flotilla.

PEORIA, Il. April 22.— Playing
“peave ide With a Smile’ on- its
steam calliope, the big excursion
steamer East 8t. Louis, gilstening
with bright new colors and pennants,
steam 1 ut of Peoria harbor this
{morning for Cincinnati, O., where it
iwill be one of the five big boats in
President Harding’s | flotilla next
Thursday, an event in observation of
Gen. UU. &. Grant's centennial.
Smokestacks were pulled back to
lall-w passage under low bridges and
y os across the flooded rivers.

JACK DEMPSEY VISITS PARIS

Heavyweight Champion Expects to
‘Attenti Races Today.

By the Associated Presse.
PARIS, April 22.—Jack Dempsey,
with Jack Kearns, his manager, ar-
rived here from London today for a
short visit. The heavyweight cha:n-
pion managed to dodge & crowd of
severs! thousand enthusiasts, reach-
ing his hotel without encountering
any demonstration.

Dempsey waa tired and sleepy aft-
er his trip and said he was going to

will go to the raceé after a litth run
about town. —

—

keep indoors tonight.. Tomorrow hee | qaat

UIICe OF F acCKINE

ii!

POLICE THROUGHOU

Slain, Louis A. Held in

Hospital With Wound -

robbers leaving the Morris office and itor
In a general exchange of shots Menge! suffered three

Through Right Shoulder—All Three | |
of Wyoming Street District in Which “1. a
* Robbery of Morris & Co. Office bee
. at 3000 South Broadway , eo Be
: * Zz | : D4 ms
‘Two policemen were killed and a third was seriously woundsd ve
by two robbers who held up the Morris & Co. packing plent branch +3 5 :
office at 3000 South ‘Broadway at 10:30 a, m. yeaterday and @&. a hi
caped with leas than $100. ! "| eae i *
Patrolman Michael O’Connor of the Wyoming Street Station: . oF
was on the west side of South Broadway, nearly opposite the of 4 4
fice, when @ man told him that there was ‘‘a stick-up at Morris’.!* ke : :
He ran over to the office, entered and fired twice through a glaat: cs i %
partition at one of the robbers. The other robber shot O’Connet, 94. b
killing him instantly, at} ee y ee
Patrolmen Bernard C. Mengel and Louis A. Held, who were Ly
in the South Side Trpst Co., across the street, were summoned by “0 Ee
the same man, and running out, crossed in time to meet thetwo Sie
making for their automo, ©

bile.

wounds, from which he died in the City Hospital at 1 p. m.,and

Held was shot through the right *

houlder. He is in the hoepitel. .
coiinensaihaatt

The robbers escaped ‘in the auto-
mobile, described as a) green Olds-
mobile touring car with faded top,
which a third man had |kept waiting
for them, In the stredt nearly in
front of the office, with engine run-
fiing. The car was driven wee, on

Pestalozai street. ar
* BHokdap Apparently Mistimed. —
‘They had apparently) planned to
get both the payroll meney and the
collections brought in’ by drivers,
but they were too late for the pay-
roll, most of the em es having
been paid, and too early €or the col-
lections, as the drivers had net
me in, . ‘ |
oy general order was issued last
light to policemen and detectives to
look for the green Oldsmobile, which
ig believed to have been the same
car used in two previdus robberies,
the more recent at @ roger store
on Ashland. avenue. It hed a licenee
tag the first three numbers of which |
were 19$—-the numbers in the 1
000 group are those of Kansas
automobiles. In a previous rab ;
the tag number of the green Olds |
qas taken, and was found to be the
mumber of @ car then, regularly in

Police Probably Will ©
Raise Reward Fund for .
Event mene ee

VERY member of the ™&.
Louis Police Departmen: :
be asked to contribute to a fund.
to be offered as a reward for the
capture of the murderera of Pa-
trolmen O’Copnor and Menge), if
no arrest of importance is mate
in the case by tomorrow. This
was announced last night by
Chief O’Brien.
‘The mame, was done last May,
in the case of the murder of
‘@pectal Policeman Finn, and 6
reward of $1200 was made ep by
the contributions, and was #tD-
sequently pald to the captors of
Spencer Jordan, who wee recurt-
ly convicted of the murder, his -
punishment being fixed at taregi+ ~
ing. oat
The families of the two pe-
trolmen wil] recetve @ach “the ;
#2006 benefit of the Police R4- |
Hef Association,and a yeer's oly
ary for each, $168¢ for O'Corhor:
and $1386 fer Menge! (a probe‘,
tionary), making §463¢

$490%, respectively.

wes in Kansas City, imdiquting thar
the tag on the robberr’ car wee 8

@uplicate or & bogus one

Paige, hut which the

thought was a
ae mated, to be an
|

police believes,
Qida. {

‘ In @ roundup, of police

last night. 17 men were taken td
Headquarters, No deftnite evidence
against any of them ig)at

Beene of the
| Thre Morris
corner of

woftice is at the north-
fouth Brozf@way and

back of the building Hne, wth
emall traffic pase is from. A RpeBe-
ber of automobiles and trucks wera
in this space. ; a

Within the building. the hoa
Quarters are te the right of the mein
entrance, abd behing » partitions of
erdinary glass, In this office were
Charlies Omen. brasch meneper,
Arthur Gerden and Delmer Berhsi,
and Josept Vickey

A ekinging piat-

thse ground, 3%

th front of the building, whieh stands. - *

axe

wean

ve a a ee ee ae
mw, in the event that Miller
mo. Brockman, now purchase”
gent, is to be elected president;
e is to be re-elected vice presi-
Commissioner William ‘Young,
treasurer, will be elected pur-
QE agent. and Miller will be
wi treasurer. The fifth mem-
8 Mayor Kiel. pe
Miller decides to remain a
ber in the subordinate postition,
ures wil] be taken to prevent a
nuance of his previous activ-
If he undertakes to assume
mehip of raids, as in the past,
‘of Police O’Brien and Chief of
Gives Hoagland will be instruct-
> take no orders from him un-
ratified by the board.
‘ Refyses to Resign.
‘Was told yesterday of the ar-
mments for ousting him, and
esked if he would continue as
ember. He replied: “I have
)my public staternent, and 1am
Inclined to discuss the matter
rer. But I will say this to you.
K right. I will not resign under
a@-n-y (spelling the word) cir-
te Governor yesterday made an-
r attempt to persuade Miller to
oh, sending Commissioners

Lnird Wounded Dy NoDDEeETS

Centinaed Frem Page One.

Olsen as being about 25 years old,
wearing gabardines andi - cary, and
both having on glasses with tortoise-
shell rima, entered with revolvers

displayed. Going into the space be-

hind the partition, they pointed the

revolvers at the four men, and one
of them gave a ‘““hands up” order,
which was obeyed.

The safe, at the east end of the
office space, was open, and one oi
the men began examining it, having
first taken from the cash drawer the
money there, believed to be $60 to
$75. While this man bent over the
safe, the other man began searching
the employes in turn.

Showed Great Nervousness.

He backed Fleischman toward the
safe and both robbers demanded of
him where “the money” was.
Fleischman and the others replied
that there was not much money in
the office. This angered the men,
who, according to Olsen,- showed
great nervousness. 1

While the man at the safe con-

on special duty, while O'Connor, who
was the‘regular patrolman on the
beat, was on the sidewalk outside.
Held had just returned from guard-
ing a messenger of the trust ocom-
pany who had taken some money to
the Federal Reserve Bank. Menge!
Was about to accompany a messen-
ger who had a@ payroll to Geliver at
& point farther south.

“Bomeone rushed in and said
there was some trouble across the
street,” Held related. “I drew my
revolver and ran out with Mengel.
|The Street was full of automobiles,
jand I couldn't see O'Conner, who I
|}suppose had gone inside, but I saw
Mengel fire at someone, then saw the
Iman fire back and Menge! fell, his
jhead iIying on the platform.

i Second Shot Defective. ;

“] fired-at the man who shot Men-
igel, and raw him double over ag if
|he was hit. I fired again, but the
cartridge was defective, and fust

went ‘plop,’ so I don't think that
bullet went far.

“Then they got me. I was hit in
the right side of the chest, but I held

| tinued to ransack it, the other patted |on to my revolver and supported my
' Berkel’s clothing, not getting a $10 right hand with my left so I could
| bill which Berkel had in a pocket. shoot.

I fired the three shots re-

MICHAEL O'CONNOR...

HE maltese cross indicates approxima
where the robbers’ car, the engine of
funning, stood. The packing plant sets }

building line a considerable distance. Polic
and Held were in the banking room of
Trust Cempany, on the northwest comer
| and Pestalozri street, when the robbers
ing plant. Poli an O'Connor was on
Was the first o to enter the office
Were. He fired through a giass door at

‘
persons. A policeman, before shoot- \The
ing to kill, wants to be sure whom, 2nd
he is Hkely to hit. When I pursped | Willi
two fleeing men on Olive street, ajiater,
few years ago. I could have killed |rotbed
them both, but 1 didn’t know just |$20,00
what they had done, and I wouldn't;}from :
take that chance, and the result was|8 ta a
that I got shot myself.” bers h

re and Youn s his emissaries. }
i ; Wy | He then began to search Olsen, and!maining in my revolver into the rear |

re, who has been friendly with
sr, had expressed the opinion
be could convince Miller that!
taign would be the easier. more
eful WRY gut of him dijenima.
Unable to Budge Miller.
Be vielt occurred in Millers law
~ At ite conciusion Moore made
Wrown that he had been unabie
udge Muller es determination not
th Miller and Hrockmian timit-
grolice headquarters iam nigh’
_ Besrest approach to a meeting
Soween them occurred as Muller
eet tod from Chief O Brien'a office
: the third floor corridor, where:
ckhman was standing if he saw

a of the fact and passed into,
» levator without greeting him.

he break between Miller and |
- Hyde came only after repeated |
te on the Governor's part to in- |
58 Miller to retire gracefully. It.

Siman he gave no outward indi- ,

| his hand was upon a bil! fold, con-'end of the robbers’ car.

taining $100, when the police inter-

i ruption came

Patrolman O'Connors arrival in
the buiiding, outside the office
clogure, *ae eecn Ly) UOleen and the
robber who wax etarching hirn.
(Connor approaarhed, stooping
sormewLat, and fred throug! the
giane door Yhe ceourwe of the bullet
inds-eted elther toatl XN was Ceflectad
by the glam of tha’ Bs police Bu-
thorities believe. ( Conpor purpoeel>
fred high. in the fea: of wounding
sume of the enipirs

The ahot wshatiered an electric
light shade and entered tb¢ wall be
bind Herkel. parsing apparent) be-
tween Berkel e uplifted hands

O Connor fired again. and again

‘the bullet entered tbe wall, without
wounding anyone
O'Connor Sbot Through Heed.

The other robber, who hed been
at the aafe, nearly or quite out of

in-'.

At first I
/didn't know which machine to fire
at. there were wo many of them on
the street.
“I @id not want to hit any Iinno-
cent persons. so I made sure of
whih auton.obtie to shoot at. 1
‘paw the bandits n.achine swerve ou!
from the curb inte the traffic and
b think I aaw one of the men shoo!-
img at that time

“After m, revolver was emptied
1 reaclhed with my left hand fer
more bullets apé gr then: out of m)
pocket but | was unsbie te break
epen the breech of my revolver be-
cause my right hand seemed to be
paral) zed Then. the pest I re-
member. they were putting me is
an anbulance”’
It was found that the bullets fred
the robbers were sieel-jacketed
Patrolman O'Connor was known
as “Big Mike'’—he weighed 280
pounds—and as “Number One,” to
‘distinguieh him from other patrol-

members of the Police Department |base
{occurred the night of Oct. 16, 1920,|Earl
‘when Detectives William A. Moller! man
and Preston B. Ans),:
b)
lowed into a yard on Juniata street, |
near Gustine avenue
not

Man om Way to Bank Robbed of 870,

Sire:
Ravceage ‘i
vas on hu wa
to @epoasi
checks In the lafayette Bout Bide
Bank. wi.er
Droadeay and Marion etreet by two.
men in
pointed pletois at him ané enatched
a benk bock containing the
and checks from his hand

the robbers then knocked him éown
with wm pistol, causing a severe ecalp

The latest previous killing of two Was

two men whom they had fol-!
The men were,
caught.

Trew hworied Duws
Walter Mruh of raee Neosho ‘
bookheoeper at the Gewinner |
1429 Bouth Broadway.
at 7 ovbok baat night
Siu in cash and 8160 tm!

he wae heid up at

a Ford automobile who
meaery

One of i

bown that Gov. Hyde decided, a | ¢ oO'Connors ebots, fr lacerauion.
. ; he range © ' Michael O'Conner. He —_—— ¢ -——
y few days after Miller's reflec- 1% i -ard, before the police- men named x
on the morals of Bolden High |) Pe ig fire again. and fired ones. was 42 rears old. lived #: 343° MOO” § POLICEMEN KILLED |
aya t~7} h , apa |
* Sie bebtahte saat we! Prat » Copia’ fell, shot throug bd jyoung children. ang been &@ po- IN LAST TWO YEARS |
rm ‘ iM than re. '
wens cic Millers wecfulnese aa |, The two ropbers dashed su | “pairolman Xengel was 61. tired at! FIGHTING ROBBERS,
af . ing over O'Connor ' ; d had a Bia tees
mbise efiiia): had Seen seriously trore. in the doorway, when Patrol. | 5114 i a panel ite He| Jn the Met two years, during =
MiEeA. The eUheequent Gelure 6 | an Mengel met them. at « Gi. ly 21 years,which bank robberies. bank mes-
étantiate the accusations con-|™ - a few feet. Mengel | Went on the force nearly ‘ad nn : ob- | Bale
; . tance of only & ago, but was in other work for near- |senger robberies and peyroll r ‘
ts] the Governor that Miller, as first shot, an@ one or both to ern [oR
evid in a statement Friday night had the eturning his fire, |ly two yeats recently, and returned beries have been frequently ©
i “forfeited public confidence.” | ° ay Se the pea, through the | with the status of a probationary pa- | mitted in Bt. a by wip yn
‘ ‘ shot m ! = troiman. using automobiles to escape,
Se Decided Dra Action. ht
_ PSe Decided on Drastic Action [right arm and through the TIER! |" oy) sinerals of the two poficemen |than $90,000 has been taken from |
&¢ of Miller's work, and having & a ee Held, who had started will be held har aed a anda omeecag dab gletoe cay egy bagret |
tonal affection for him in addi- Ppa the street with Mengel, bot ee ee 3 oo pour Retaund 24, ; tifical
t desired to let him retire with-|) 04 peen held back momentarily by pales we’ aeacabt's at BB.| Five policemen have lost their see
¢ embarrassment. After SiVIAS | 2a automobile, ran UD. ae one Mary and Joseph's Church, 6310 |1'ves battling with these robbers and | 207
eC eee Need him to do |ropbers. & bullet Filrain whether |Minnesota avenue. . Both wifl be jseveral others have been wounded. | gbie ;
Rin etated. Miller was obdurate. eel was fired by. one of - pane ir a al ap agin a Have been ki ¥ po she 3
4 a "ele ak aon Eom pele robbers coming oe ine ween for a joint procession, with the po- Biden te: Fans sone varren yer sr | iasued
a oe , man | 2. -
i Ui he must take drastic action. He|Ca,, Held fired at | the a ty be soe tod K. of O. Members. Baden Bank, from (hich $69.000 |...
_— te aient Miller's Weaty ee inet. lap. Meee papi woreieer as| Both O'Connor and Mengel were was taken by eight \men. who od True
7 ie me thy Seeet reneret. > a eee inte the ear, /membere of Lacieée Council, 1196, |ccped in an automobile. Tne small- | +14;
© ¥ictery for the criminal ele- jr robbers ent his Knights ef Cotumbus. of the jest amount obtained was $2500 from |. e+,
of the city. whose driver was Te . net council visited both homes, and will |the Pine Lewn Bank- road
Kanes Oty Election Cited. . at aid in the funeral arrangements. The Meramc: Trust Co. and Tay-
2g alec pagers cas Poin co of the Held ie 40 years old, and i a|lor-Kaston Trust Co. robberies werd | y ay
: City election a few weeks Fleischman ran out of ue widewer with a married Geushter aj /unsnooesstul, ekhoust engl pn
ad am tmportant pert in the othoce, with he had picked up. whose heme, $464 Glies avenue, he/the fives of three policemen me
Parkers sttituée en the police irevolver, which restées, He went. on the force in|rovber. The $20,600 taken from Mon
times at the robbers’ 5.208 from the| ita
In a campaiga there, inianég Gred four 1899. He was knewn as a good re- | Meramec and the $15.2
‘Matthew Foster, who had automobile as it started won. Bi foe 3 mn? ya . Tayler-Easton were recovered. foece
, ly: age ceedisti One of toe nf in the wall of the Chief O’Brien last night, diecuse- Reve, eee oe tee
* Republican candidate f0F| Held wast near where ing the question why policemen are Between April, 1921. and Jan. 20. 2.
P areraity, the Hyde forces were | Morris office, at & eT canting 2 mere frequently kifed thas rebbers | 1922, seven benk messengers were had
Kiely Gefeated. Bince then the | one of the robbers was tm such encounters, enid: [Ec apd em gee ree ie rE
as been told by party! mentariiy. . “The pol good shots as a|carz.
that a continuation of] ‘The man whe Called, UNieiie | rule. ‘Ther are required to prectice| | Betw: \ Dee. 34, 1928, and April ito ¥
policies would mean party |O*Conpor, and was Loaiic Medley, at the revelver range, and in adéi- ie, 1at,,: Cuare supe See See -
jother police. Morris plant, whe tion they ean ge there when off duty |pqyr.] robberies and pumber Po
, t-Governor Hiram Lioyd. |an employe 0. ator department, ané shoot with the efty’s auumuni- | were a aie. dd ,
’ Te eaaemelt the Gover lana ane eereel at star Be ote eee inst tho Curetet. {bank memongere who was robbed. jing 1
OSE when consulted he eugrest- the robes scribing the fight te a| “The trouble te that ob rita Bi + oaavigrone renin ipa nigh pane, 5
: .— oxt-Diepatch reporter at the | oft7 ye weuaity rodkieas, }pere. ; { ~ {orton
Wistinentay night tha plan byjPom. ined that he aad Men- | while rethers ave fmnecert| On June 12, 1.19, Pywtroiman the
& t fwwented to Gepone Mil- Sone rs in the South Trust Co. | sot hesitating te enGanger y eh
shh a oe * ~. ‘

H
m Page One.

put 25 ‘years old,

ani - capg, and
ses with tortoise-
4 with revolvers
nto therspace be-
they pointed the
ur men, and one
handa up” order,

4 of the
ope, __ 1 one of
mining it, having
e cash drawer the
ved to be $60 toe
.an bent over the
} began searching
ae
Nerrousness.
-thman toward the
pers demanded of
money” was.
ne others replied
: much money in
angered the men,
o Olsen, - showed

at the safe con-
., the other patted
not getting a $10
had in a pocket.
search Olsen, and
1 a bill fold, con-
, the police inter-
nnors arrival in
ide the office in-

by Olesen and the
searching him.
hed,

ed through
ruree of the bullet
at it was deflected

‘Conpor purposely
fear of wounding
ves.

-red | an electric
steredi the wail be-
ng apparently be-
Jifted hands.
again, and again
thi “** without
Th: Head.
er, who ned been
y or quite out of
ors -sbots,
before the police-
sin, and fired onee.
shot through the

--g idaghed out.
onnor'’s body, and ,
way, when Patrol-

them, at a dis-
few feet. Mengel
+. and one or both
his fire,

, who had started
with Mengel, but
ok momentarily by

bea his revolver as
pea into the oar,
3 bonking hie hern

MESSRS KSE AY

at, Bs police au- |

SANZ AES

on special! duty, while O’Connor, who
was the'regular patrolman on the
beat, was on the sidewalk outside.
Held had just returned from guard-
ing a messenger of the trust ocom-
pany who had taken some money to
the Federal Reserve Bank. Menge!
was about to accompany a messen-
ger who had a payroll to deliver at
a point farther south.

“Someone rushed in and- maid
there was some trouble across the
street,” Held related. “I drew my
revolver and ran out with Mengel.
The street was full of automobiles,
and I couldn't see O'Connor, who I
suppose had gone inside, but I saw
Mengel fire at someone, then saw the
man fire back and Mengel fell, his
head lying on the platform.

Second Shot Defective. ;

“I fired-eat the man who shot Men-
gel, and eaw him double over as if
he was hit. I fired again, but the
cartridge was defective, and fuat
went ‘plop,’ so I don't think that
bullet went far. :

“Then they got me. I was hit in
the right side of the chest. but I held
on to my revolver and supported my
lright hand with my left so I could
‘shoot. I fired the three shots re-
maining in my revolver into the rear
jend of the robbers’ car. At firet I
joe know which machine to fire
at, there were ‘so many of them on
lthe street.

\,
persons, “eo I made sure of
which automobile to shoot at. I!

icent

stooping | saw the bandits’ machine swerve out | not caught.
the jfrom the curb into the traffic. and |

I think I saw one of the men shoot-
ing at that time.

“after my revolver was emptied,
reached with my left hand for
ore bullets and got them out of my
but I was unable to break
breech of my revolver be-
‘cause my right hand seemed to be
paralyzed. Then, the next I re-
member, they, were ‘putting me ip
ao ambulance.”

It was found that the bullets fired
by the robbers were sieel-jacketed.

Patrolman O'Connor was known
as ‘Big Mike’’—he weighed 280
pounds—and as “Number One," to
distinguish him from other patrol-
men named Michael O'Conner. He
was 43 years old, lived at 3420 Mon-
tana street with his wife and two
young children, and had been @ po-
liceman more than 19 years.

Patrolman Menge) was 52, lived at
611A Wilmington road, and had a
wife and two grown sons. He
want on the force nearly 21 years
ago, but was in othér work for near-
ly two yeata recently, and returned
with the ‘status of a probationary pa-
troiman.

The funerals of the two poficemen
will be held Tuesday at 9 & m.,
O'Connor's at Bt. -Thomas of Aquin’s
Catholic Church, Towa avenue and
Qeage street,.and Mengel’s at SB.
Mary and Joseph's Church, 6330
Minnesota avenue. . Both will be
buried with full police honors, and
arrangements probably will be made
for a joint proceasion, with the po-
ice band

Both K. of C. Members.

| pocket:
jopen the

“I did not want to hit any inno- |

building line a considerable distance. Policemen Mengel
and Heid were in the banking room of the South Side the platform
frust Company, on the northwest corner of Broadway was shot down o
and Pestalozri street, when the robbers entered the pack- out of the office.
ing piant. io oem O’Connor was on the street. He
was the first o to enter the office where the robbers |
Were. He fired through a gless door at them, missing |

was slow in getting through, but Menge) quickiy reac
in front of the pisnt, firing es he ran.

peared, but was quickly incapacitated by
two robbers jumped into
north to Pestalozzi into which it

hed

n the platfonn, es the robbers Cashed:

Held opened fire as soon as they Ap-

the waiting car, which sped;
tarned and Bisor peared.

persons. A policeman, before shoot- | Thomas Ward was shot and kilied
ing to kill, wants to be sure whom, 2nd Bergeant (later Lieutenant)
he is Mkely to hit. When I pursued) William Smith was woun
two fleeing men on Olive street, a later, in a ba

that I got shot myself.”
The latest previous killing of two was killed when he
members of the Police Department /basement to try to capture them.
occurred the night of Oct. 16, 1920,;Earl Hunter and Charles Cc. Berg-
when Detectives William A. Moller|mann were sentenced to life impris-
nd Preston B. Anslyn were kilied!onment and Alvin West to 45 years.
en whom they had fol-'The mon v was recovered.
\iowed into a yard on Juniata street, | Cornered in Theater.
near Gustine avenue. The menwere, Un April 6, 1920, Frederick
e |Ch:rles Smith, robbed the Easton-
|Tayler Trust Co, 4474 Easton ave-
on Way to Bank Robbed of $70, nue, of $15,809. Cornered in he
Then Knocked Down. 'Easton-Taylor Theater, next door,
Walter Btroh of 2846 Neosho lhe shot and killed Patrolman Ter-
street, bookkeeper at the Gewinner ck é

|
18

by two m

‘hdan

‘

i\Rausage Co., 1429 South Broadway, |

lwas on his way at 7 o'clok last night Flavin and Patrolman Claude

\to deposit $70 in cash and $150 in |Adams,, who recovered. The robber fact in the case, and James Tunure,)
ichecks in the Lafayette Bouth Side | ne | 25. who was arrested as a suspect inf
‘Bank, when he was held up at jmcrey was rscovered. Mrs. Gerabach's home after the kill-}

‘Broadway and Marion street by two
men in a Ford automobile who
pointed pistols at him and snatched
a bank book containing the money
and checks from his hand. One of
the robbers then knocked him down
with a pisto!, causing a severe acalp
laceration.

tat

| | fled, dropping t*e money.
' wounded. ‘

~+*--—

5 POLICEMEN KILLED

IN LAST TWO YEARS |

FIGHTING ROBBERS
=

In the teat two
which bank robberies.
genger robberies and peyroll rob-
beries have been frequently com-
mitted in St. Louls by armed gangs,
using automobiles to escape, more
than $90,000 has been taken from
banks, $64,685 from bank messen- |

TURNED OVER HERE MOKD
Bpecial to the Post-Dispatch.

years, during
bank mes-

price to holders of the receiver s-cer

Hyves battling with these robbers and | 105-6 Commission will become avall
several others have been wounded. ae for the new company, known a
Two robbers Have been killed by PO- | sine weissowr! & North Arkansas Rail
rene tien and most succesef ul sof way CO. ang 50 dhedigoeeyeme —s
the. bank robberies was that of the pimeed ba ae eoaey sad a?
Baden Bank, from which $69,000 |... sent\to the Bt.
was taken by eight \men. who e8-!rrus Ca.

ded, dying
ttle with men who had |

bers had taken refuge,.and Ward
entered the

| $e William Henry and Michael

vn Jan. 21, 1920, when seven men
tried to rob the Water Tower bank
Twenty-first street and East |
Grand cvenue, Probationary Patrol-
man Harry J. Bhea_ kilied Walter
Fisher, one of the robbers. The rest
Shea was

$3,000,000 FOR M. & HA. m8
A

LITTLE ROCK, Ark., April 22.—
Final details of the recent receiver's
sale of the Missour! & North Arkan- |
eas Railroad will be closed at Bt. |
Louis. Monday, when a deed to the
road will be turned over to the newly
formed company, which in turn will
turn over the $3,000,000 purchase

gers and about $24,000 in payroll | iigccses.
holdups. ; exeis. At the same time, the $3,500,000
Five policemen have lost eir joan granted by the Interstate Com-

and a telegram |
Louie Union 2¢,

of St. Louis announcing

KEWELY MURDER WOUIRY ||

“LEADS TO DISCOVERY OF AUT,

Further investigation of the killing .

lgst Monday of Luke E. Kennedy, -
gangster, by men in an automobile, x
who fired 26 bullets into hie body,?
led to the discovery yesterday of af
Hupmobile chummy roadster in | &
garage at 4208 Natural Bridge av-
enue. Two men who had gone to
the garage to place a 1922 Neense
plate on the car were arrested.

The men are Ollie Vienup, 6601
Hamburger avenue, brother of Mrs.
Edith Gersbach of 4237 Sacrainento
fivenue, who was riding with Ken-
nedy when he was killed, and wh»
is held as an accessory before the

ie
|

ing.
Vienup said the automobile be-
longed to Edward Hogan, 3036 Cas:
avenue, and that Hogan had giver,
him the license plate to put on. He
said Kennedy ueed the car three,
weeks ago, having borrowed it from,
Hogan, ané that he, Vienup, tune¢,
up the motor and repainted it fo:
Hogan. ' F

EXECUTIVE COMMITTEE OF
ANT-BLUE LAW LEAGUE HEB!

The Executive, Commitiee of the
Bt. Louls branch of the Anti-Bluc
Law League was announced at head «
quarters tn the Btatler Hotel yesterr
day, the 14 members being Meayoij
Kiel, C. Campbel] Cummings, Heer
Chouteau, the Rev, Fr. P. J. Burke
William Sacks, H: F. Fahrenkret,
Charlies A. Hertenstein. Dr. Julia;
H. Miller, Henry Kersting, John t,
lyeahy, Ferd Meyer, Dr. J. H. ©

Fritz, Dr. B. H. Clarke ‘and Vern,
Lacy. Leon M. Feigenbaum is Bat,

superintendent.

Ali heve agreed to serve, it we
raid. The committee will have sus
ervision of the league's drive tc
000 members in Bt. Leula. Th
p for RMissourt is now aa!

3)
t

membersh!

members of Lacie@e Council, 1196, jecped in an automobile. Tre wmall-! shar the money was on Geposit. The to be 1980. .
Biche of amie Oram gfe [aretha wes O00" ED acon booed, Inger” Ne yeanch hermes —
visited both homes, wn . a’ ding debts.
aid in the funeral ents. Sie Rheaine Teen Coane THF] on on tempts of the Ozark Presbytery
Held is 49 years old, and ie «|lor-Eeston Trust Co. r ries wore! HAYS pes With PRESIBERT |‘>° arp Preab
widewer with a married Gaughter at | msacesanel ga frre yer a: pogo
whose heme, 3 Ges avenue, tives of three po ; ay gerne odbed
resides. ae eet on the force in|rouber. The $20,000 from the Movie Dictator on First Visit te Cap- Constaeaaes Bi, clases proktbitts
1898. Fle was knewn as 0 good re- Merames and the $15,308 from the ital Simcoe Retiring From Cptéset: base _ “a
volver shet. “ Tayler-Kasion were recovered. Special te ihe Post tapetch _ shows automeod: riding
pesapien pee setcenen Between April, 1921. and Jan. 20 sa Hn TON Ae or Gant ‘ ~
t are 7921. an 7 ys, form .
tec ercrcentiy killed thas rebbers|1922, seven beak messengers were ‘had luncheon with President Maré; | aeye MARDING “REASORS
tm euch encounters, anid: ribed on the streste or im strest jing and Perens ie ret visit |
“The are good shots ss 8 )cars. use H . a7
rue. Toop are required te prectioe Betwc : Dee. ‘34, 1926, and April jto W gince be teft the Cab oy TO, ;
at the revolver range, and in adéi- 14, 1922, there were nine esvocesstul |inet to as “a 1 a
tion they can go there when off éuty |pqyr] robberies and ® mumber |of the picture a ae ae
end shoot with the city’s amamual-jware eww enth Se had
tien all they wish to. es Erris Piiow, negre, one ot the [future of the movin. iis woe
‘Poticaeme, Most By Cawedtl. hunk toaumengers who was rovbed. [ing further to aay shout che “net
“The troubic ts that © potiveman {wee atterward muréeref te prevent Arbuckle cane, Tee et Bde
— aon ats gyi tong hr the tv" i tenas ana tren pe was © pvedt
re: {
not hesitating (¢ eu@anger tnaccent On June 12, 1.19, Putrouman the Gridiron Hanes: ———— -

ie Ne . MEN i ae E
ag: es. we ‘
MICHAEL O'CONNOR... LOUIS A. HELD
HE maltese cross indicates approximately the place, them, and was shot down. el ané Held ran from
‘where the robbers’ car, the engine of which was kept | the bank to get to the scene. 1d became entengieé -
tunning, stood. The packing plant sets back of the | in the heavy traffic that was passing at thst time and |

Be!

his wound. Ths :

few years ago, I could have killed robbed the Merea..ec Trust Co. of P ¢
them both. but I didn't know just|$20,000. Sergt. Smith was fired on gion Hy toe -treoam oo ag fing

what they had done, and I wouldn't |from the basement of 4625 Minne- 4 4 by Poll i t
take that chance, and the result was/8 ta avenue, where some of the rob- 7 6 ?

T.LOUIS POSI-

PART ONE

ST. LOUIS, SUNDAY MORNING, MAY 21, 1922.

NEGRO BURNED AT STAKE,
_ ANOTHER, 55 YEARS OLD, WELTON MURDEA
__-HANGED, BY TEXAS MOBS

Burning Followed Long Chase by Bloodhounds
=! —Both Accused of Attacks on
White Girls.

| succial to the Post-Dispatch.

.| HOUSTON, Tex.. May 20.—Two

inegroes were lynched in South ‘Texas |

8 [toees: following criminal assaults on

; white women.

. At Conroe, in Montgomery County.
a Joe Winters, 25 years ol}. was tied

\to a stake on the Court Hous: fawn.
Y'his clothes saturated with crude cil

jand set on fire. At Columbus, Lra-

‘goria County, Mose Bosier, 05 years

ioid, was hanged from a tree near the

‘aAlleytown School.

Both crimes were committed yes-
. terday. Another negro came near ¢t>
>) paving a penalty atthe stake for the

|Montgomery County offense. rie

‘was captured Friday night His em-;

. ployer, believing in his innocence,
teluded a mob under the guise of f2-
» ing for bioodhounds, when in fact he
“had the negro stowed away in the
_ tonneau of his automobile. The e-
gro waa rushed here for safekeeping.
One Identified by Victim.

This morning, indications pointed
to another regro. A chase was tak-
‘en up by hundreds of armed men

‘and the county combed. Bioodhounda ,

, were put on the trail. Winters was
overtaken five miles from Conroe.
He was captured and taken to Leon-
-{idas. where the girl victim identl-
yiffed him.
,| The burning at the courthouse
‘went off in order. The negro was
‘' pound to a stake. Kindling and wood
‘ were piled about him. Then the
;| mass was covered with oi and
-| fired.
7 The chase of the other negro be-
| gan Friday also. The mother of the
si girl victim, on hearing groans front

‘an outbuilding, investigated
found her daughter unconscious,
with the negro still present. She at-
‘tacked him with a hoe, but was un-
iable to down him.
; All last night a posse of officers
‘and two of citizens searched for the
negro. He was captured this morn-
‘ing by a Constable.
One Taken From Officers.

While returning the negro to town
a posse met the parry with the ne-
‘gro. One officer fired his gun, as a
‘gignal for other officers to try to
elude the mob. Two deputies
.with the negro @ half mile through
‘the brush until all were exhausted.
‘aphere they were overtaken and the
| negro taken from the officers.
; The negro was held more than
‘two hours, while his guilt was being
lestablished. After being identified.
ithe negro confessed. He was then
{put on a horse with a rope around

ani

| his neck. The rope was tled to a
‘tree limb. Then the horse was led
‘away. A big crowd was on hand

‘for the hanging.

‘Texarkana, Ark., Quiet After Lynch-
' ing of Negro.

[qty the Aaanciuted Press

i TEXARKANA. Ark.. May 20.—
iThis city waa quiet today follow-
jing the Iynching last night of Hul-
hlen Owens, negro, by a large mob
‘who took him from the Miller Coun-
‘ty jail on the Arkansas side of the
icity, where he had heen confined fol-
‘lowing the fatal shooting of R. C.
‘Choate, Arkansas policeman. Au-
‘'thorities have made no announce-

‘ment concerning what steps will be
itaken toward investigating the
‘Iynching.

=J7

‘1900 GALLONS OF WIME FOUND

| AT GARDEN; WOMAN ARRESTED

. ,\ Raisins, Which Mrs. Anna Bohnza
> | §aid She Put in to Give he

Flavor, Caused Troubie.

=|
r!
-} :
{proprietor of the Longwocd Wine
1| Garden,-s37 South Broadway. said
“!she had put in some wine to “give
as flavor.” served to give her some
* trouble yesterday. when she was
'} ptaced under technical arrest by
“! Prohibition Enforcement Super-
*: visor Nations, who reported that

~'and his squad found nearly 1000. gal-

‘tons of raisin wine at tbe garden.’ In

i casks.

/ The advent of prohibition found
‘'the garden in posseasion of 982 a1°-
“‘jons of grape
hing been a donded winery. tre

Bohnn’s husband, Julius Bohnn, who

in dead was proprietor then. They
+ wy a

Raisins, which Mrs. Anna Bohnn. !

wine in casks. it hav-,

WAY FOUND TO PRESERVE
NEWSPAPERS FOR POSTERITY

Each Sheet Mounted Between Two

Sheets of Thin Japanese Tissuc,
Shutting Out the Air.
Special to the Post-Dispatch.

| NEW YORK, May 20.—How

pickle newspapers 80 they can be
preserved indefinitely -in public 1I-

braries is a problem that apparently
has been solved, the Amercian Paper
‘and Putp Association announced
lyesterday.

, Eight years of experimenting.
participated in by three New York
j newepapers fBt a cost of $5000 a year
Peach, under the supervision of the
iNew York Pubie Library, has taught
librarians how to preserve for pos-
‘terity newspaper files. ~‘
Each newapaper sheet is mounted

‘petween two sheets of thin Japanese |

tiasue, shutting the air from the orig-
inal sheets. reducing tts legibility but

ran:

“Gynecocracy” Threate
United States. Decl
| Congresswoman Rob+
reelal to the, Post-Dianatch. :
WASHINGTON, May:
| LICE ROBERTSON. F
| A ensure in Congressi
| Ok!ahoma, declares thi
! tional League of Women. \
i] is putting the country ir
|| gsynecocracy.,
' “Gynecocrpcy, that’s whai
drift to if we followed
league.” she says.
Gynecocracy, the dictfi
says, means ‘“governmen
women, or petticoat rule.”

CASE NOW
HANDS Ot

Body Retires for Night After
Failure to Reach Verdict |
in Three Hours; Death,

Penalty Demanded. ‘SUMMERTIME RADIO IMPS |

YOUTH UNMOVED BY | BUSY, GOVERNMENT }

PLEA FOR HIS LIFE,“ Fans Told How to;
' come “Strays, Static ari

| Atmospheric.” i
| BY the Aasociated Prena. H
' WASHINGTON, May °20.-
‘less fans were warned toni
andthe Commerce Department
iware of the activities of “The

Second Degree Murder as Summertime Radio Imps.”
| . \ Summertime disturbances,
| Well as Acquiital.

j from about April 1 to Oct, 1
| No verdict in the case of Henry A.jing radio sets to give forth “*.
Melton, 19 years old, charged with | class imitation of a bollershop

‘the murder of Patrolman John J.) operation instead of an anti
llecture, on the culture

| McGrath, was reached jast night. At) worms.’
| 11:30 o'clock, after having deliberat-; Some relief, the departmer
{ed for more than three hours, the} migh. be: obtatned from the
| jurors went to bed and said ‘they{turbances by using & coil a
would resume balloting this morning.,instead of the usual elevat

| McGrath was shot in front of 4935 St. tenna or by using ‘‘ground an!

| Louis avenue the night of Dec. 8 last. |
by one of two youths whom he nad: SHORT SKIRT WILL BE
MARK OF THE FL’

‘ guspected of being highwaymen.
The Court had instructed for both
first and second degree of murder, 23 | ;
| well as for acquittal. The instruc i Dreae Industries reid s
j tion on first degree murder called | «pachionably Dressed wi
‘for the death penulty. life imprison-, Will Wear Them Lond
-ment or acquittal, that regarding | py the Associated Press. i
, murder in the second degree point-| NEW YORK. May 20.—Ii
‘ed out that if the jury found the | Mosessohn. executive directo}
.crime was not premeditated, — Apaociated Dress Industries ¢,
incall in the event = conviction, !icg, today announced plans}
is ould ve from 10 years to life ImM-| organization to leave the A
i prisonment. ‘flapper high and dry with het
| The Circuit Attorney asked for the !jength skirts.
‘death penalty. He asked the jury! Garments that hang to
‘to consider the fact that the slayel ieight inches of the ground ¥
fled from the scene, in connection | mwihe thing’? in fall styles fo
| with the defendant's contention f\«ashionably, dressed women.
‘accidental shooting. The defendant's! .ajd,
counsel asked for mercy. “Let him! The flapper will probably
-return to his mother,” he pleaded. ‘tinue to wear the knee-length
‘Melton chewed gum while the &f-)yfoscssohn said. “and some m?*
‘guments were in progress ‘turers will probably catet to}
+ When Assistant Cireuit Attorney clase of trade.” | os
‘Johnson. in ‘the closing argument.{ But as for the “Fashtonadty &
isaid, in referring to McGrath's form-|woman’—well, Paris has ‘al
jer service overseRs,. “It would hav® item longer and what Paris |
{been better for him to have died 10 | \posexsohn thinks, will contin
| France than by an assassin’s bullet,” fege™ here. }
McGrath's widow and Meltons moth- ; !

Ee ne oerota both. wet. among! AFTER DEADLOCKS, SMALL
SELECTS EPISCOPAL CH

\ Pact< Pointed Out By State. |

The State, in asking for @ verdict .

jof guilty, pointed out to the jury that | err nal

‘the following facts had been estab- |On First Two Sundays garors

lished: Meiton signed a statement | promised by Atrending a

ladmitting that he had shot McGrath. |. ine ay oo

Dut asserting that the shooting was’ A seseh nepie a“ ‘tas

‘accidental; he Was identified by AN eadlocked for two weeks are
‘ewitness 4 » the ;

aie 4 bw aren a : tendtince at-church services, th

Court Instructs Jurors
' Consider Both First

jand atmospheric, are

RAs id

the
on Hefore whieh Gay. Small is

eeprerergeersere
fare sl ;

ret”

‘ST.LOUIS POST-DISPATCH

F
|

RTL
i

Three Men Held in Con

nection

With Murder of Two Policemen

ae cae
CHARLES MERRELL,

NUGH PINCKLEY.

BOASTS OF FINE
SHOTS LEAD TO
ARREST FOR KILLING

¢ ontinaecd From Pace One.

rel i Pinkley to throw ont the
cal vy had worn tn the roblery.
The" as done and they put on the

hats they had left {n the machina.
The caps were found by the police
the next day.

Trey drove to Page avenue, where
Manley's car had been left, and Man-
ley changed to his own car and
drove back to his garage. The two
others drove the Pajee car to the
4300 block on Evans avenue, where
it was abandoned and tater found
by the police.

Lost $35 or $140.

Merrell told the two others that
he got ouly vetween $38 and $40 te
the robbery.

Mery enl@ Merrell twice tried to
get him to go out Into the county.
(nce Merrell said he
have some target practice. He did
not go because be feared he wags to
be made the target.

Manly, after making the state-
ment, sald he was glud to-get ft off
his mind. He sald that he had been
wanting for some time to tell every-
thing, and when WDetective-Sergeant
\Girard vane in ‘'s garage last Mon-
Guy came near telling him all about
{t.

My.
He was {Hvahe hospital corps dur-
the the war, bit did not get over-

Was going Lo.

yee

NL:

wer ent

statement if they cared to or could
tefuse to maka one. They were
Riven to understand that they didn't
“have to confess unless they desired.”

Police records ahoaw that Merrell
wags sent to Je Missours Peniten-
tiurv om Aug. 11. 1920, for a two-
ear term for stealing an automo-

a TR WT PETS e.
ws

KANSAS MP
i

yNOUES NFP
ao ee We

ie : y ‘e | :
Wounded Prisoner Who Had
Killed Policeman Taken

From Texarkana Jail and

Strangled to Death.

Ry the Asrociated Preas.

TEXARKANA, Ark... May 20.—

| This tity was quiet early today fot-

lowing the lynching Inst night of
Hullen Owens, negro, by a large mob
who took him from the Miller Coun-
ty jaf} on the Arkansas side of the
city, where he had been confined
{ollovting the fatal shooting of R. C.
Choate, Arkansas policeman. <Au-
thoritle: have made no announce-
ment concerning what steps will be
taken’ toward investigating the
lynching.

Owens had been arrested Thursday
nightiand vlaced in the jail on &
charge of theft. Yesterday afternoon
he told Choate and Chief of Police
Lumrdus that if they would relears
him He would show them where hé
had concealed some stolen automo-
bile appliances. Taking him at his
word, the officers accompanied him
to an:alley, whe-e he rummaged in
a trash receptacle and suddenly
pulled out @ gun, ordering the offi-
cers to stand back. Chief Lummus
drew his gun and shot Owens in the
face. The negro then fled for three
blocks with th: officers In cloge pur-
aust. He hopped aboard an automo-
bile and when Choate attempted 13
prevent his escape, the fugitive fired
on him, aix shots entering his abdo-
men, resulting In hig death 30 min-
utes Inter at a hospital.

. Escapes In Antomohbile.

Despite his wound from Lummus’
gun, Owens managed to make nis
getaway in the automobile, driving
to . point about a mile from the chy,
where he abandoned the car and fled
into the woods. Apparently fearing
capture by Lummus who, reinforced
by other officers, waa in hot wursuilt,
Owens attempted to drown himeaelt
ina pool. He was dragged from whe

Miller County and taken to a hoapl-
tal for treatment for his wound.
which was bleeding profusely
Large crowds gathered around the
hospital while hia injury waa being
dressed. Officers succeeded in get-
ting him safely ’o the jail. our at
about 8:20 o'clock a mob esti nased

water by Sheriff John Stranes of

wee eet

Statement by: Prisoner in

He Says He and Two Other:

follows:

“ST, LOUIS. Ma, May 19,19
“The following statement

made at Pm « Headquarters on May
19, 1922, by Robert A. Manly, after
hoe bad been Informed of his rights
by Circult Attorney Howard Side-
ner and told that any etatement that

he might maks at this time relative
to the murder of Patrolmeh Mengel
and O'Connor In this city on Satur-
day, April .2. 1922, would.be used
against hin in court. Lhe witness,
Robert A. Manly, then said he de-
sired to mnake ae statement He
states as follows:

“1, Robert A. Manly, being of
lawful age, 23 years old, and mar-
ried; residing at 3934 North Fler-
issant avenue, and by occupation a
mechanic, do hereby desire to make
the following statement, to-wit:

. “On Saturday, April 22. 1922,
about 9 o'clock in thé morning,
Charles Merrell, who was at that
time employed by me as an auto-
mobile repair man and who I have
just identified at this office (Police
Headquarters), and who was with
me on April 22, 1922. He. Merrell,
approached me at about 9 o'clock
that morning (April 22, 1922), end
told me that some fellow was coming
in to look at a car andi that we
could make some money. He then
asked me to take him out to see
this fellow and J agreed. He (Mer-
rell) told me to drive out Page ave-
nue and I did in my Auburn four
automobile. I drove to Newstead
avenue between Page and Evans ave-
nues. When I drove out there Mer-
rell, myself and Hugh Pinkley were
in the car. Hugh Pinkley is the
man I just identified at this office
(Police Headquarters). When Mer-
rell cathe to my garage that, morning
le had a hat box under his artn,
When wo (Merrell, myself and Pink-
ley) arrived at Newstead and Page
avenues, he (Nerrell) sald) ‘This 15
the car.’ and I saw a Paigo touring
car there and all] three of us got
out of my car and Merrell. gave me
the key to the Paige car iand told
me to leave my car in the place of
the Paige car. All three of us, my-
self, Merrell and Pinkley got into
the Paige car; this Paige'car was
facing north In Newstead avenue on
the east side just north of Page
avenue. We drove from Page and
Newstead in the Paige car, arount
the block to Evans and then-south

wee

was

, Men Who Killed 2 Pol;

ye text af the stuvement made to the police
T connection tcith the murder of Policemen oy

Ray ‘Turn to the riz
1 would as Merrell «
Tella of Going to 4
“I deove south tn
the Morris Packing
er 3690 south, Tam
the nunfber., Durtng
driving from News
avenues, Merrell an
talking among the
heard Merrell say, °
Pinkley eald he w
and Merrell sald, W
packing company, |
he jumped out b
stopped. I was al
about a hal¢ block
packing company, 2
‘Pinkley, come on,’ #
got out.” i |
“*Pinkley was 8
yards after Merrell
went In they were
tT think Merrell wa
feet ahead of Pink
south to the end go
railroad tracks the!
turn." a
“-Thev (Merrell ¢
out of the machine
ing south and walk
the packing compa!
about 12 yards ahe
proceeded south to
came back.

“When Merrell j
machine he said, “
and come back and
running.” :

Description

“When JT turne¢
back opposite thi
the motor soing. 1
when I heard the st
packing company _
rell and Pinkley co
the plant. TI didn’
the door of the f
them on the sidewa
plant and when I
turning at the bees |
come running out 0
rel] waa first and h
front of the mach:
got in the back a
“Drive west—up t
step on it.” T dre
indicated which T-
lozzi street; I drove
to the right. Ia
many shots were ff:
Mceman go Into the
half block away, bu’
policeman come out
policeman.

; iy bile in ‘Scotland County, an was .
y spas until the fighting was over The discharged Nov. Bea ie se se! at . agp EN ALIAS aaa on Pendleton. 1 then-drove south “J heard one §
; erner two were not in the war. previously arvested Dec. 9, 1°19, with st. oe? - wie os dacs and east until we got to Compton {and Pinkley got in
3 Pinkley had been arrested prev-liwo others, at 4053 Olive street, in door with an fron eee \Etieera, | avenue. I then drove south over the jand Pinkley never t
lo.sly on suspicion in the Murric| possession of a machine stolen in] Oo Pe ine ie One iee"*} compton viaduct. I didn’t know into the car, I am

: ; !
tub, but was not Identified. Galesburg. UL, and wa, charged witn dragged the wounded negro from Ff] J are 7 was going as Merrell would or not they shot |

nm. , G . acre 3 . 8 e t ,
Witnesses of the robbery und kill- violution of the Dyer act, wut the cot with a rope and out to the stree
n iy ‘red at the three prisoners lust | ose) was dismissed in he. Fedeval where death from strangulation soon a sie ei :
avi nieht, Sut were unable to identify | Court bie the following month on resulted. The corpse was Pe & ee A AE a PA
‘ ae ; space near the|=
whem. account of hig youth. dragged to an open space Tt =

Union Depot. where a Jarge quantity
of kerosene soaked fuel was ixnited.
The body was thrown on the fire.
Tried to Protect Negro.
Sheriff Strange made an effort to
tect the prisoner, but was power-
Many of the

ral associates of the men were E
ar } and are held tor question-
ying it they are not supposed to
have been implicated in the robbery
and murders.

Merrell was arrest¢d yesterday at

his home and Manly and Pinkley at

Pinkley was sentenced in Octo-
ber, 1918. by a jury ip Circuit Court
in St. Louis. to five years’ imprison-
ment fdr stealing an automobile
from Frank Dubinsky of 5742 De-
Civerville avenue, and waa released
on Nov..30 last. The Bertillon rec-

p
less to resist the mob.

es] aniy’s garage. ord addp that he had served a terar{™* ers peared to be aig ocd
n- | Hoagland and Sidener Deny Use Of | the penitentiary at Pontiac, II Sheriff r fused to xvrrender his keys
i° Forve or Coercton. and Had teen .atrested in !Hitnoie|to the Jaf! on demand and

Chief of Detectives Hougtand and rather roughly handled, but not se-

eight times on various charges, in-

r.| Circuit Attorney Sidener were asked | cluding | arson, between 1913 and | tiously fojure d. Munfcipal iss H.

__|Corce or abuse had been resorted to aasd - peal from the jail ste i é

helin obtaining the s’atement. “Ubey $3250 2) Hewarls Difered tor be permitted to take {ts course, but

9-jaatd that such was not the case. ae Paaik deer hig remarks were drowned out with

t- “T went ta Voltce Hrendquarters AN Ae for ee chs cde and con- auch crice a8 “Weiwant the murde -er

ct migcight: In order to wanes | CUCM Oe Abe vlayers of Posicemen | |. rieg Choate, and “This is no time =

Mengel and O'Connor total $5360,
with a porsible additiom of $500 if
the Board of Aldermen passes a spe-
celal ordjnance now pending. The
lolice Department offers $2090, the
£t, Loulg Automobile Dealers’ Asso-
ciation, $500; the Laclede Council of

myself that no coercion or abuse
had been used by the folice to ob-
tuin this confession,” sald Circoit
Attorneys Sidener. ‘I took the man
aside from the policemen and told
him who | was, and that he didn't

for pretty talk.”

Choa was one of the best known
officers on the Arkansas side of the
citv, where he had s: -ved for the last
19 years.

Il
|
i

City Dairies De Li

ch | bs to sign the confession If he Ms i ;
he |: want to. toasked him if ‘the Knights of Columbus. $100, and finest ice creams o
dia or coercion had | been used. the South Side Trust Co. oifers $250 :

1 Picwer waa, ‘tam making this | for each of the robbers. : l
led. |confession of my own Cree will fn or- ee = — first Pp ace in man

Const, Guard Officers Needed,
By the Aepocta sd Prass.

WASHISGTON, Mag 20.—The
{s secking 100 officere

der to ger it off my mind. I've
peen thinking about this thing éver

since the day ft happened” |

WITH PIMPLES

he Chief of Detectives Hongland said: ; Government S Ae
led | “No coercion or force was used in for the, Coast Guard, tt was an-
av-jobtaining these confessions, We | nounced today. Examination for ad- | | Hardand Red, Itched and Burned,

went #0 far as to warn the prisoners | irittance, to the Coast Guard Acai-
of thetr rights {nm the matter. We -v at New Lond n,. -Conn.. will be
fold them the cass was a most sert- ; held jn different parts of the country
ons one and that they could make a on June 24, he added,

Lost Sleep. Cuticura Heals.

“My trouble began with indiges-:
tion which caured my face to break
out with blackheads and pimples.
The pimples were bard and red and
festered over, and itched and burned
agteat deal. My face was dishgured
and [ lostalot of sleep. ,

Chemie te rnushklia lnated albwrut a wear i

Children Cry for Fletcher’s

nn ee EEE UAEBRVRARARTE TELE TE Y PS

| eat emce pie etd 4 Lr:

—_-

The Master

(Above) William F, Bloebaum, former prosecuting at-

torney of St. Charles County, Mo., and co-author, who

collected the evidence which finally uncovered the
motive and solved the mystery

Isidore Grothe, his deputies or myself could gain the slight-
est hint of their identity.

The Duebbert farm is an ideal place for murder and a
traceless get-away. Out in the Femme Osage hills fifty-five
miles from St. Louis, it is sixteen miles off the main traveled
road, U. S. Highway No. 40. All about the place are heavy
growths of timber, Even now, it is almost as lonely as
when Daniel Boone, the famous pioneer, selected those hills
for his home in the wilderness more than a century ago.

AULINA DUEBBERT had never married. She was

forty-eight years old and, for all her isolation, a shrewd
and capable business woman. She belonged to an old St.
Charles County family which for three generations had
owned the farm she had inherited.

In recent years, a new house had been built. In it lived
her fifty-seven-year-old cousin, August Meier, who managed
the farm for her. She preferred the near-by old house in
which she had been born. Miss Duebbert loaned money in
the neighborhood, using one room of her home as a sort
of business office. There her neighbors came and often paid
their debts in cash. She had thousands of dollars loaned
out and, neighborhood gossip said, kept large sums con-
cealed about the place.

City gangsters -have a way of learning such things, of
which at times they take advantage. They’ve been known
to slip out from St. Louis and other large cities, commit
robbery or murder, and speed back in their high-powered
cars to be swallowed up by the underworld. Could St.
Louis gangsters have murdered the lonely spinster, with
robbery as a motive? There were facts that made this seem
a possibility. Or was it, as at times seemed more likely,
some greedy neighbor, tempted by the story of her hidden
wealth, who had crept under cover of darkness to rob her?

Detective

At the edge of an orchard is the old Duebbert
family burying-ground. In accordance with the
wish of the murdered woman’s grandfather, pioneer
owner of the farm, no headstones mark those
lonely graves. There, only a few steps from where
her slayers struck her down, Paulina Duebbert was
buried, one August day in 1929.

Except for persistent investigation, that might
have been the last act of the tragedy. In the long
history of our old county, murder has been the
rarest of crimes. And now, with a generous, highly
respected woman as the victim, this brutal killing

_ stirred the community to a frenzy.

Bloodhounds were brought and set on the trail.

They lost the scent where neighbors had seen a car

(Above) General view of the picturesque Duebbert
farm in the Femme Osage hills. Its isolated position
made escape easy for the marauders after their crime

parked a few hours before the shooting. Sheriff Grothe had
the dogs taken away. They might follow a trail to some
innocent neighbor who had only come to give aid when
Meier telephoned.

Then clues began to be discovered, clues enough to make
solution of the mystery seem absurdly simple. Near the
scene of the crime were found two pairs of stained overalls.
On a road through the woods, searchers picked up two ban-
dannas of peculiar design, two white handkerchiefs, two
pairs of new work gloves, three .38-caliber cartridges and a
flashlight with a $1.50 price tag attached.

Overalls and bandannas are the commonest of things in
every rural neighborhood, but it began to look as if the
killers were residents of the community, for they must have
known the country well. Who else could have driven in
the dark through the woods over that rough road? To
apprehend the murderers, it seemed, all we had to do was
to find the owners of the overalls and bandannas which
they had scattered about as they fled. But to accomplish

The amazing story of a man
who killed to buy his sweet-
‘heart a home; of his clever
flight; and of the exciting
chase of detectives through
five states, to swing him

_ from the gallows

body of Paulina Duebbert was found one August night in 1929. She

ind then shot by a mysterious slayer
sul- “Put up your hands and walk over there!’ the young

been man ordered.

-ural “*This man hit me with a club,’ Paulina screamed when |
sud- reached the place where I was ordered to go.

y. “Then they shot us both: Fearing to move lest another
the ; shot end my life, I stayed where | fell, part of the time un-
out conscious. Four hours later, | crawled over to the spot

1 do. where Paulina lay. She was dead. Then I dragged myself

they into the house and telephoned.”

When I heard what had happened, I knew I had a tough
ning job ahead. A country prosecutor is expected to collect and
had prepare the evidence of crime and present it convincingly
ided. to a jury. Unlike the city prosecutor, he is no stranger
the among thousands as he walks down the street. Everybody
shot knows him, has had a hand in putting him in office and ex-
and pects him to make good. There must be no buck-passing,

no political wire-pulling to protect a criminal, no shifting

log of responsibility to let a guilty person

| sud- I escape, as often happens in cities. (Right) August
rhe | saw at once that this case would cent, Oa
ung be one of the hardest tasks of my eight ager of her farm.

the years as a prosecutor. The killers had He crawled to a

ita completely disappeared, leaving no trail telephone for help
nan, whatever. Clues they had left in plenty, after he had been

shot by a noctur-

lina. but none from which either Sheriff rial aineailaae

LLER, Avid A., white, hanged St. Charles, MO oh February 10, 1933

By
WILLIAM F. Bae
BLOEBAUM f=

Former
Prosecuting Attorney
St. Charles County, Mo.

As told to
IRA D. MULLINAX

(Above) Beside this straw stack and rail fence the body of Paulina Du
had been clubbed and then shot by a

LTHOUGH it was after midnight, following a sul-

try August day, and the country-side had long been man

wrapped in slumber, every telephone on a rural “cy
line in the Femme Osage district of Missouri sud- reache
denly rang out with seemingly unusual intensity. “Th
“Something mighty strange about that,” exclaimed the shot e1
| farmers whose homes were on the line. They jumped out consci
| of their beds to listen in, as people on party lines often do, where
| and this time their inquisitiveness was well repaid, for they into ti
| heard startling news. _ Whe
August Meier, their neighbor, was on’ the wire, groaning job ah
out a call for a doctor. His cousin, Paulina Duebbert, had prepar
| been shot and killed, and he had been dangerously wounded. to a.
| An excited crowd soon gathered in the darkness at the among
| Duebbert farm. Paulina lay where she had fallen, shot knows
| through the mouth; Meier had a wound in the hand and pects
| two bullets in his head. no pol
| “I was working in the old log of rest
| (Left) The Dueb- —_— kitchen about eight o’clock, when sud- escape
ger 0 pe denly I heard my cousin scream,” he I sa

dense foliage and groaned. “I ran out and saw a young be one

shrubbery suc- man in a blue jacket and cap. At the years
cessfully cloaked = edge of the woods, probably about a comple
hentan pte: hundred yards away, was another man, whate\

derer standing beside my cousin, Paulina. but

her

"March, 1934

“And look at the watch I got my-
self,” he said proudly. “It set me back
seventy-five bucks.”

“Maybe you'll be needing things,”
remarked Miller on their return from
the fair. “Here, take this.” And he
gave her two hundred dollars. Feeling
generous again, he handed her twenty
dollars more.

Billie saw no reason for refusal.
What could be wrong about it?
Weren’t they engaged to be married?
It was not until the murder charge was
brought against him that she learned
of the deception he practiced when he
told her that he was single.

“NOW that we were to be married,
Miller said he wanted me to have
a nice home,” Billie related. “We
looked around, ae homes all
over town, and | helped him pick out
one. It wasapretty place, priced at six
thousand dollars. Miller paid three hun-
dred dollars down on it; his option was
to expire on September first. He told
me he had thirty thousand dollars in the
bank and would take care of it before
the expiration date. But when the time
drew near, he didn’t have the purchase
money. He planned to obtain it by
robbing Miss Duebbert. That wag the
motive that led to the murder.” ',
:

‘The Master Detective

I now had a net of evidence from
which there could be no escape. Fac-
ing it and realizing its grim meaning,
young Tanner decided to come clean
and tell it all. He was only twenty-
one, a young hill-billy, led into crime by
an ex-convict more than twice his age.
It was Miller who had planned the rob-
bery; it was Miller who shot Miss
Duebbert, he declared. Tanner shot
Meier twice; a third time at Miller’s
order. Panic-stricken, he persuaded the
older man to leave without searching
for the money. Then they fled down
the highway to Boonville.

Every detail of our carefully gathered
evidence linked up with Tanner's story.
After he had told it on the. witness
stand, and offered a plea of guilt
Judge Woolfolk sentenced him to life
imprisonment.

eeing Miller in court, the murdered
woman’s neighbors now recalled him as
“the woodcutter with the glasses” who
knew every foot of those hills and had
often heard the story of Miss Dueb-
bert’s hidden wealth.: Before a jury I
brought out the evidence against him,
every detail, link by link.

It was evidence into which no ele-
ment of doubt could enter. That was
the way the jury viewed it, and death
by hanging” was its verdict.

The Blonde—the Detectives—and
“The Rattlesnake’’

(Continued from page 11)

rear of a service station lot at the cor-
ner of Third and Carondelet Streets.

Hardly able to credit the evidence of
their own eyes, the officers had driven
past the lot, not betraying by so much
as a backward glance the fact of their
all-important discovery. They circled
the block and parked the police-car
where it could not be seen from the
service station. A few moments later
one of the officers called Detective Lieu-
tenant W. C. Burris by telephone.

“1 isten,” he said tensely, “we've
found the Chevrolet. It’s on a lot at
Third and Carondelet. I’m_ talking
from a private residence at 264 South
Carondelet. Get some of the dicks out
here right away, will your”

“Boy, you said it,” Burris replied.
“And when you make your report to
your lieutenant, tell him to keep it
under cover. We don’t want the re-
porters to get a rumble on this. Get
me?”

“Okay. When you come out, ask for
Walter Doxie. It’s his house I’m call-
ing from. He'll do all he can to help

ou.

. Burris quickly relayed to me the mo-
mentous news he had just received.
Then he and his partner, Detective
Lieutenant B. G. Anderson, made a
dash for the locker-room. When they
emerged two minutes later, they were
garbed in greasy corduroys and well-
worn work shirts.

Small wonder then, that when they
presented themselves at Mr. Doxie's
door shortly afterward, they had to
exhibit their police badges in order to

convince that worthy gentleman that
they were detectives—not day laborers.

Introduction formalities finished, Mr.
Doxie evinced the utmost willingness
to co-operate with the detectives. He
said he knew the blonde girl “by sight,”
having seen her in that neighborhood
on several occasions, and would recog-
nize her instantly if she put in an ap-
pearance.

“Besides,” he added, “I know the fel-
low who operates the oil station. I'll
go down there and see what I can find
out about that Chevrolet.”

Soon afterward Mr, Doxie had made
good his promise. He informed Ander-
son and Burris that the automobile had
been driven into the station that morn-
ing by a young blonde girl who had
instructed the station attendant to re-
charge the battery.

ITH the coming of darkness the de-
tectives parked their car in Mr.
Dowie’s driveway; from which point
they could keep the Chevrolet under
surveillance, and prepared for one of
those long, tiresome vigils that are a
part of every detective’s routine life.
For hours they watched and waited,
tensing for action at sight of every in-
dividual who passed down the street.
At midnight they were relieved by
Detective Lieutenants Russell A. Smith
and A. M. Young of the Automobile
Theft Detail.

In the meanwhile I learned to my
dismay that, due to an oversight, the
report made by Radio Officers Kern
and Diller as to the finding of the

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ap em mo = oes 3 ips i ee Bs CRT In

i Duebbert

with the
jer, pioneer
nark those
from where
iebbert was

that might
In the long
s been the
‘ous, highly
ital killing

n the trail.
i seen a car

sition
crime

srothe had
il to some
aid when

1 to make
Near the
1 overalls.
» two ban-

niefs two

How I Snared the

this wasn’t as simple a matter as it seemed to be,
A check-up of stores throughout that section was the
next step. This failed to give even a hope of a lead as to
who had bought the overalls and other things. A closer
examination of the garments was then made. On one pair
were found the union stamp number and the mark “Lot
100.” The label was that of a Cincinnati, Ohio, factory.

ROM the manufacturer the name was obtained of every

merchant to whom shipments of overalls in Lot 100 had
been made. His records disclosed the name of Andrew
Markham, a St. Louis merchant, who also carried gloves
and handkerchiefs like those found in the woods. At last
the trail seemed to be getting somewhere. But when ques-
tioned, Markham couldn’t recall selling the gloves and
handkerchiefs, He remembered sales of overalls like those
found on the farm but couldn’t describe the particular
buyers of those stained garments.

Two former residents of the eounty who were familiar

with the Duebbert farm now were suspected. But
an investigation revealed no evidence against them.
It looked like the end of the trail.

Then volunteer searchers among the murdered
woman's neighbors took up the hunt for clues,
They scanned every foot of the woods: they
combed all the haystacks; dredged the cistern.
Finally, a few feet from the murder spot, they
found a piece of fence rail. Adhering to it were
bits of hair closely resembling Miss Duebbert’s.
It verified Meier’s story and the terror-stricken ex-
clamation of his cousin: “This man hit me with
a club.”

A few days after the murder, Otto Brinkmann, a
neighboring farmer, found a blue-tinted revolver
in the woods. The sight had been knocked off and
on the trigger guard was the serial number, 30988,
The chamber contained five exploded _ shells.
Brinkmann had read of finger-prints, and knew

Slayers of Paulina 41

their value as evidence so he lifted the gun with a stick so
that nohe might be obscured, and delivered it to the officers.

Soon after this, a second revolver was found, another .38.
but nickel-plated. It contained four loaded cartridges and
one mie 4 shell. An unused gag also was discovered, a
&ag such as robbers might contrive.

The St. Charles County Court offered $500 reward for
the arrest of the slayers. To this, Governor Caufield of
Missouri added $200. I began to believe those rewards
would never be earned.

And then a pair of sun-glasses was found in a handker-
chief on a ridge near the scene of the murder. Who had
sold such sum-glasSes and who could have bought them?
Over at Boonville, half way across the state, our inquiries
were rewarded. There, we discovered the dealer who had
sold these glasses. And he also had sold the flashlight which
had been found right after the killing.

The night after the mutder, two men had gone to a Boon-
ville hotel and had left early the next morning, abandoning
a car which one of them owned. The car was a sedan
recently equipped with new tires and so was readily identi-
fied. Neighbors said it was the same car they had observed
near the scene of the slaying.

All this hooked up nicely with the sun-glasses and flash-
light; it looked like a hot trail again. But it wasn’t. The
two meh had left Boonville three weeks before!

At the little town of Crocker, down in the Missouri
Ozark Hills, lived Chester A. Hurt, a former lumber dealer.
He had formerly employed two men, Norman E. Tanner, a
twenty-one-year-old dweller in those hills, and David A.
Miller, whose home was in Swedesburg, not far distant.

Tanner was a blue-eyed young fellow, had light hair and
was over six feet tall. He was sociable enough to smile
when his intimates called him “Gander.” Miller was forty-
five years old, one inch less than (Continued on page 58)

On the left is the man who killed to buy his sweetheart a

home, together with his youthful companion in crime,

after authorities finally caught up with them in a grim
chase through five states

From there’ they went to Osage ?Gity,

six feet tall, and had curly brown hair
and blue eyes. He was known for talk-
ing loudly. Miller was regarded as an
expert in valuing logs and timber, and
his employer had great faith in him.

“You're a good man, Miller,” said
Hurt one day, pleased with: the log-
buyer’s ability. “When you go around
buying logs, just write the checks on
my personal bank account.”

Miller continued to. prove himself -

capable and dependable, and his em-
ployer felt highly satisfied. Miller had
a wife in Swedesburg, though he had
ceased to live with her.
dwelt a comely divorcee known to her
intimates as “Billie.” In his journey-
ings over the state on business trips,
Hurt: learned that his expert. woodman,
Miller, and Billie were the warmest. of
friends, gh

“That doesn’t look right,” decided .
Hurt; “his having a wife down.at

Swedesburg and all. It’s the sort-of
thing that leads to trouble.” 4)

AFTER thinking it over, he dis-

charged Miller, but the log-buyer
went on writing checks on Hurt’s ac-
counties) >; phe anaes
Miller thought a lot of Billie, was
eager to show her a good time. Early
on the morning following the murder,

he and his young friend, Tanner, -ar- -

rived in Boonville, where the log-buyer
immediately sought out his lady love.

“The State Fair is on over at Se-
dalia,” he remarked. : “How’d

Billie would just be charmed,

“O. K., but I’ve got a little business
to look: after first,” said Miller.

He drove with her over to New
Franklin, just across
River, and cashed a five-hundred-dollar
check on Hurt’s account. Then~they
drove to the fair, saw the freaks and
fat stock, and watched the races. The
next day, Miller cashed a fifty-dollar
check on Hurt’s account at Boonville,
and, accompanied by young Tanner,
left for Jefferson City. After the good
times they'd been having, Billie ob-
served. his epartne with keen regret.

“But they’! .
count: of those checks,” he explained

to her. “We're going for a trip down.
south. Keep me informed how things »

are moving. Living here in Boonville
you'll get next to everything.” #
The two drove off to Jefferson-City
where* Miller: cashed another Neh
dred-dollar check to which he:
forged Hurt’s name.
When those checks for more’ t
one thousand dollars came in, Hurt:
furious... He offered a reward of on

‘hundred dollars for’ Miller’s ‘arrest, and } pi
h

the Missouri Bankers’ Association:
a similar offer. ‘ ;
Hurt couldn’t
off his mind. With a sweetheart in Boon
ville and cashing all those crooked checks
there was no telling what Miller migh
be tangled up in. Then he rememb
reading » about) th

In Boonville _

ou like -
to run over and spend the day?” ape
aueeed

the Missouri /

be hot after me‘ on‘ac-.

for Miller to

et his former employee "

The ©

-aste

(Continued from page 41)

near the scene of the Duebbert murder.

“Why, Miller’ wore glasses — like
those!” he exclaimed. “‘He cut and sold
timber for a ‘year and a_ half right
where the crime was committed. And

why has he written all these checks.

on me and disappeared?”

_ That would be an easy way of get- .
ting the necessary money for a.long:

trip if anyone was attemptin
plete getaway. Hurt decide

a com-
to talk

all this over with the St. Charles au-:

thorities.. When I heard his story, I

issued warrants for the arrest of -Mil-:
ler and Tanner on a murder charge.
‘This: was: on September 14th,

weeks after the killing.

Investigation: in the meantime re-.
vealed that: Miller, back in 1914, had
served nine months of a two-year sen-:

tence in the Missouri: State Prison on
a charge of assault with intent. to kill,
the’ crime having been committed in

St, Louis. with’ a woman his: victim.

From prison authorities his picture:and
record were obtained and mailed to
police and sheriffs «throughout the
country. es See of

This action set officers on the trail
over a wide range of territory. Through
five states they traced Miller and Tan-

ner, from Jefferson City to St. Louis,
across Illinois and Indiana to Dayton,

Ohio. Then the trail led to Cincin-
nati and from there to two small towns
in West Virginia.

apolis they missed the pair by less than

anshour: se perke 4

The hot- summer’ days of 1929

dragged slowly by, and public clamor:

for the solution of the murder daily

grew more insistent. The two men |:
had charged with the crime had appar-

ently made good their getaway in the
West Virginia hills: Bea hie

MEANTIME officers in Boonville

were’ watching Billie McDonald,--

and keeping close tabs on any mail that

came there for her. One day, she re-.

ceived a letter from: Miller which was
mailed at :-Picher,. Oklahoma: | She
wrote back at once, enclosing the news-
paper story jof. the warrants | had
issued against him and Tanner. 3
““What does’ this meanr” she de

Z-was sufficiently seriou
yarn his-young pal, T; ‘

ner, to be o
en he himself d

at's D
with: a-gl

uffalossissstsca
or birthday. an
r

let ha ned

How I “Snared the ‘Slayers of Paulina

“Detective —

three

- for the murder,

I So close were offi-
cers upon’ their*heels, that at Indian-.

‘jury set them free.

handkerchiefs in St. Louis; the buying

. Louis:

ad self and Tanner during the days that —
x. followed. a2 bys

- confession, saying that it had been ob-- 3

~ one hundred and filty dollars for an —

out of this mess if you would swear |
was here for your birthday celebra-
tion,”

But the girl told her father, and he
had old-fashioned ideas about perjury
murder and such matters. He went i:
and informed Sheriff Hyde, who already
was looking for the fugitive. Miller
Paath sig ips nabbed and jailed. He
stoutly denied his guilt but readily told
where Tanner might be found.

»“Tanner’s down at Picher, where we
both worked in the mines,’ he said.

Sheriff Hyde hopped down to the
Oklahoma lead belt and soon had Tan-
ner in custody.

Miller had only three dollars in his

ckets.

“] had thirteen hundred dollars a few
days after this. thing happened,” he
admitted. “I lost it playing poker
and paying Tanner’s expenses to In-
_dianapolis and other places.”

"THERE now appeared a weakness: in
the theory of robbery as a motive
In the Duebbert home,
several hundred dollars had been found
and evidently the place had not been
searched by the murderers. Miller had
_an easy way of getting money by writ-
ing checks on’ Hurt. Why should he
have aided in the murder of the lonely
-farm woman and the attack on her
honest, hard-working cousin? If rob-
bery were. the motive, why had the
slayers fled without even searching the
pistes There was plenty of ‘time with
little chance of discovery in that lonely,
‘isolated spot... - °
I believed we had the killers. -Yet,-
strong as the evidence seemed against
theny; there might be a flaw somewhere,
some little. thing that would make a

‘Then one day Miller announced that
he ‘wanted to confess. His statement
was full of detailed admissions, includ-
ing the purchase of the overalls and

of revolvers and cartridges in East St. °
He told of the visit to the
Duebbert. farm; the brutal details of ~
the shooting; the movements of him-

~ There couldn’t be any doubt about it
now;-we had the guilty men. Then
Miller upset it all by retracting his

eweler’s and spent ~

which he: slipped

HE warm calm of early August evening settled over
the bountiful farms and big, fine homes that crown the
low hills of Femme Osage, Mo.
On the wide veranda of his rambling white house at Cappe-
lin, 40 miles north of St. Louis, Dr. Ben Brandt, vigorous
and kindly doctor-farmer, sat in an old rocking chair drowsily

enjoying the serenity of the perfect evening. He was loathe’

to leave his comfortable seat and go to bed.

The telephone bell in the front hall tinkled an irritating
discord. Dr. Brandt rose reluctantly from his deep-seated
chair and entered the house.

Slowly he lifted the receiver to his ear and rumbled a weary
greeting to the caller. In another instant he was alert, lis-
tening eagerly.

“Doctor,” a voice sobbed across the wire, ‘some bandits just
shot the place up. I’ve been wounded. I think I’m dying.”

“Who is this?” asked Dr. Brandt. The voice was vaguely
familiar despite its strange hoarseness.

“Gus Meier. Come quickly.... I think... .”

Meier’s voice faltered. Only a faint buzz reached the ears
oi the doctor.

“Hello! Hello!” There was no response.

Then Dr. Brandt heard a muffled thud. Evidently Gus Meier
had fainted and fallen to the floor.

Grabbing his hat from a peg in the hall, Dr. Brandt rushed
out into the yard to the two-room frame building that served
as his office. A minute later he emerged with his medicine
bag, jumped in his car and sped Gown the dirt road toward
the Missouri river.

Gus Meier lived on the s00-acre Duebbert farm. He had
a room on the second floor of the large white farm house. He

MILLER, David A., white, hanged St. Charles, MO, on February 10, 1933

Ra Nhat a hi aS

was the employe and companion, as well as a first cousin, of
Paulina Duebbert, rich spinster owner of the farm. Miss Dueb-
bert was sole heiress of the estate left by her wealthy mother
and father, and was reputed to be worth nearly $100,000.

Meier was a thin blue-eyed man of 45, with a bushy blond
mustache. He was devoted to Miss Duebbert, and content
with his lot as her hired hand and protector.

Dr. Brandt covered the five miles from his home to the Dueb-
bert farm near the village of Femme Osage in as many min-
utes. It was almost 11 o'clock when he mounted the front
steps and entered the big Duebbert house, but already a group
of awed neighbors had gathered at the gate.

He found Gus Meier reclining on a couch in the parlor. He
had recovered from his faint and crawled across the floor to
the sofa.

His head was covered with blood, his shirt moist and sticky.

Rapidly Dr. Brandt began working on the semi-conscious
man.

“Find Paulina,” he moaned. “She’s worse off than I am.”

The doctor quickly cleansed, cauterized and bandaged the
man’s many wounds.- One bullet had plowed a deep furrow
in his scalp, another had torn the flesh from his right cheek.
There was a bloody hole in his right shoulder and another
wound in his left hand.

“How
“Some
was In g
But e)
kept rep
As )
upstairs
in any
dining
There
bert }
of the |
Dr
‘Miss
the gate

cow lot

Then

Grothe

Doct

The \
an electr
of paral:
blind],

E vel

were C
the dea
Even
Grippe
Had t}
and pre;
who w

On. th
tearful 1
the hou
a bed uy

~ 1382 34 FEDERAL REPORTER, 3d SERIES

basis and not upon mere caprice and con-
jecture. Jt must be such doubt as would
give rise to a grave uncertainty, raised in
your mind by reason of the unsatisfactory
character of the evidence or lack thereof.
A reasonable doubt is not a mere possible
doubt. Jt is an actual substantial doubt.
It is a doubt that a reasonable man can
seriously entertain. What is required is
not an absolute or mathematical certainty,
but a moral certainty.

Id. at 40, 111 S.Ct. at 329 (emphasis in
original) (citations omitted). The Supreme
Court found this instruction to be unconstitu-
tional because it “equated a reasonable doubt
with a ‘grave uncertainty’ and an ‘actual sub-
stantial doubt,’ and stated that what was
required was a ‘moral certainty’ that the
defendant was [not] guilty.” Jd. at 41, 111
S.Ct. at 329.. According to the Court, the
words “substantial” and “grave” as they are
‘commonly understood, suggest a higher de-
gree of doubt than that required for acquittal
under the reasonable-doubt standard. Thus,
the Court held that an accused could have
been convicted based upon a standard of

proof below that required by the Due Pro-.

cess Clause. Ibid.
We hold that this claim is barred. by

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, ”

103 L.Ed.2d 334 (1989). In Teague, the Su-
preme Court held that as a threshold issue, a
~ court must consider whether the claim urged
by a habeas petitioner requests a remedy for
which the court would: have to craft a new
rule. If a court finds that a new rule would
be required, it may not proceed to determine
the merits of that. claim, with certain excep-
tions not here relevant. Jd. at 300-01, 109
S.Ct. at 1069-70, The Court broadly defined
the term “new rule,” holding that a “case
announces a new rule when it breaks new
ground or imposes a new obligation on the
States or Federal government[] ... [or] if
the result was not dictated by precedent
existing at the time the defendant’s convic-
tion became final.” Jd. at 301, 109 S.Ct. at
1070. (emphasis in original). -The effect of
Teague is to limit severely the claims avail-
able on habeas.

Applying the Teague new-rule. auiaies to

this case, we hold that we are prevented

from considering the petitioner’s claim be-
cause the relief he seeks would require us to

create a new rule, the very action barred by.

Teague. Murray argues that the challenged
jury instruction violated his constitutional
rights. because the-trial court’s instruction on
“reasonable doubt” contained the term “firm-
ly convinced.” Murray attempts to analogize
the instruction used at his trial to one found
unconstitutional by the Supreme Court. in
Cage. The result for which Murray argues is
not dietated by Cage or any other precedent.
We first note that the term “firmly con-
vinced” is not comparable to the phrases—
grave uncertainty, actual substantial doubt,
and moral certainty—criticized. by the Court
in Cage. Moreover, although the Supreme
Court has not overruled Cage, a decision
announced this term certainly weakened it.
In Victor v. Nebraska, ——: U.S. ——, 114
S.Ct. 1239, 127 L.Ed.2d 588 (1994), the Su-
preme Court held that two instructions, one
in a California case and one in a Nebraska
case, using words somewhat similar to those
found constitutionally problematic in - Cage,
were valid. Considering the reasonable-
doubt instructions in their entirety, the Court

- held that: both instructions were valid, even

though they contained the terms “moral cer-
tainty,” “actual and substantial doubt,” and
“moral evidence.” Given the range of ac-

- ceptable instructions as defined by the Su-

preme Court, we believe that we would have
to break new ground to find that an instruc-
tion which charged the jury to be “firmly

convinced” before convicting Murray was .

constitutionally infirm. Therefore, we hold
that this claim is barred by Teague..

[22] Next, Murray challenges the agera-

vating-cireumstance instruction used in the -

penalty phase of his trial as unconstitutional-

ly vague and overbroad. Although Murray.

did not raise this claim in his direct appeal,
the Missouri Supreme Court addressed this
issue in its independent review of the sen-
tencing instructions, and found that the in-
struction, as applied in this case, passed mus-
ter. State v. Mune supra, Tae S.W.2d at
7715-76.

MURRAY v. DELO

1379

Cite as 34 F.3d 1367 (8th Cir. 1994)

placed by Mo.Rev.Stat. § 494.480 (1989). In
addition, according to Murray, because he
was forced to remove these jurors with per-
emptory challenges, his constitutional right
to due process was infringed.
Although the Supreme Court has not spe-
cifically decided this question, see Ross -v.
Oklahoma, supra, -487 .U.S. 81, 108 S.Ct.
2278, the Missouri Supreme Court appears to
have held that defendants had such a right
under Missouri law as. of the time Murray

‘was tried. State v. Wacaser, 794 S.W.2d 190,

193 (Mo.1990). However, we need not reach
this issue, because we hold that the District
Court did not err in upholding the Missouri
Supreme Court’s finding that these four ju-
rors were able to apply the law fully and to
sentence Murray accordingly.

Beginning with venireperson Victoria Als-
up, we review the voir dire portion of the
transcript. Alsup’s answers to defense and
prosecution questions reveal an ability to
consider both sentencing options. T. Tr.
232-34. Later, in response to questions from
defense counsel, Alsup indicated that anyone
who committed cold-blooded, premeditated
murder should receive the death penalty. T.
Tr. 262. The prosecutor then explained the
law to Alsup,.and she responded that she
could wait ‘until the completion of the evi-
dence before making a decision, and that she
would follow the law explained to her by the
trial court. T. Tr. 272-78. Still later, de-
fense counsel questioned Alsup again, and
this time she indicated that although she
thought death would be the appropriate pun-

ishment for someone who committed cold- ’

blooded murder, she would consider all of the
evidence and talk with her co-jurors before
reaching such a conclusion. T. Tr. 282.

Taking Alsup’s answers to prosecution and
defense questioning as a whole, we cannot
say that the Missouri Supreme Court’s factu-
al findings are incorrect, Alsup’s answers
seem inconsistent at first, but after having
the law explained to her, she indicated that
she would consider both sentencing options
and would attempt to apply the law as ex-
plained to her by the trial court. This is all

-that Murray was entitled to under the law.

Wainwright v. Witt, supra, 469 U.S. at 424-
26, 105 S.Ct. at 852-53.

The questioning of Fischer proceeded in
much the same manner. . In response to
questions from the prosecutor, Fischer indi-
cated. that he supported the death penalty,
that applying it to a particular defendant was
a “big decision[,]” and that he could apply the
law in a specific case to determine the appro-
priate sentence. T. Tr. 243-44. Then, when
questioned by defense counsel, he indicated

that life without parole would be an insuffi-

cient sentence for a cold-blooded, premeditat-

ed killer. T. Tr. 258-59. Later, the prosecu-

tor questioned the entire panel, explained the
law about aggravating and mitigating circum-
stances, and asked them whether they could
follow the law as explained. Fischer re-
sponded in the affirmative..

Prosecutor: “Okay. Is there anyone here
on this whole panel: that would not do that,
that would not wait until all the evidence is
in. before you made that determination as
to whether or not to give life with no
parole or the death penalty? Would you
all wait, listen to the evidence, and follow
the instructions of law when it talks
about—you will read these instructions
that they are going to give you, aggrava-
ting versus mitigating circumstances.
That is what the legislature says you must
find before you can even consider the
death penalty. Will you all do that; be
open-minded jurors and do that before you
even get to that decision?”

Panel: “Yes.”

T. Tr. 275. Again, even though Fischer indi-
cated support for the death penalty as a form
of punishment, he also indicated that he
could wait until the entire process was com-
pleted, before voting for or against a death
sentence in this case.

Although venireperson Carolyn Artega’s
support for the death penalty was particular-
ly strident, the pattern of the questions and
answers was similar to that of the other
panel members. After indicating to the
prosecutor that she supported the death pen-
alty, she indicated that she understood it was
not an automatic sentence, and that she could
consider all of the evidence before reaching a
determination. T. Tr. 190-91,

1380

Were it not for the clarifying questions
from the trial court, we might have needed to
proceed to the question of whether the use of
a peremptory strike on Artega violated Mur-
ray’s rights. However, after the Court ex-
plained the procedure of the trial and the law
involved to Artega, she indicated that she too
could consider the law and reserve judge-
ment until the completion of the evidence.
T. Tr. 204-206.

The transcript of venireperson. Elbert
Witte’s responses to questions again reveals
a similar pattern. Witte indicated his sup-
port for the death penalty, and after the
prosecution objected to the form of a defense
question, the trial court broke in to the ques-
tioning in an attempt to clarify the situation.
After a lengthy explanation of the two-tiered

trial and sentencing process, the Court ex- -

plained to Witte about aggravating and miti-
gating circumstances. T. Tr. 373-74. Then,
after confirming that Witte would follow the
instructions, the trial court asked. Witte if he
could consider both life without parole and
death. Witte answered yes. T. Tr. 374-75.
Witte’s responses are similar to those of the
other venirepersons. . His final statements
indicate that he would not impose the death
penalty automatically; instead, he would con-
sider both sentencing options. T. Tr. 375-76.

On the basis of the entire voir-dire tran-
script, we affirm the District Court’s holding
with respect to each of the six jurors. In
response to questions from the Court, the
prosecution, and the defense, each of the

questioned jurors or venirepersons indicated -

an ability to consider the available sentencing
options, and to reserve their decisions until
the completion of the process. The trial
court’s and Missouri Supreme Court’s find-
ings are fairly supported by the record.

{20} Murray’s next argument is that his
trial counsel was ineffective because she did
not conduct a reasonable investigation, obtain
independent, competent psychological evalua-
tions, or present diminished-responsibility
and mitigating psychological evidence. Mur-
‘ ray urges that, if his trial counsel had con-
ducted a reasonable investigation, she would
have discovered that he was dominated by

34 FEDERAL REPORTER, 3d SERIES

his brother, William. Murray also contends
that this evidence, as well as evidence -about
his dysfunctional family and abused. child-
hood, would have reduced the degree of his
offense or, at least, decreased the sentence ©
the jury would have imposed. In addition,
Murray argues that his trial counsel was
ineffective because she did not object to the
trial. court’s aggravating-circumstance _in-
struction. .The District: Court found that all
of these contentions, except the aggravating-
circumstance argument, were procedurally —
barred.

Murray filed a motion for post-conviction
relief under rule 29.15, in which he alleged
ineffective assistance of trial counsel. The.
Circuit Court of St. Louis County reviewed
his motion and denied it. The Missouri Su-
preme Court also reviewed and denied this

motion. Murray v. State, supra, 775 S.W.2d

89. Although Murray now seeks to raise
several issues of ineffectiveness, he did not
raise, in state court, most of the issues he
raises in the petition before us today. We
must consider whether he is precluded from
raising them now.

Once again, Murray can raise these new
issues only if he can prove cause and preju-
dice or-actual innocence. And, again, Mur-
ray does not contend that he is eligible for
the. first exception. However, in his re-
sponse to. the State’s brief, he does argue
that this Court should apply the: actual-inno-
cence exception to consider the merits of his
ineffective-assistance claims. The District
Court considered his claims on the merits,
but, because we find them barred, we decline
to follow suit.

The same standard applies at the penalty
stage that we discussed in the context of the
guilt phase: to procure a review on the mer-
its of his defaulted claim, Murray must show
by clear and convincing evidence that but for.
the alleged constitutional error, no reason-
able juror could have found him guilty of the
crime or eligible for the death sentence.
Sawyer v. Whitley, supra, —— U.S. at ——,
112 S.Ct. at 2517; McCoy v. Lockhart, 969
F.2d 649, 651 (8th Cir.1992), cert. denied, — —
US. —, 118 S.Ct. 3056, 125 L.Ed.2d 789
(1993) (holding that the Sawyer clear-and-

MURRAY v. DELO

1381.

Cite as 34 F.3d 1367 (8th Cir. 1994)

convincing standard applies to both the guilt
and penalty phases of a trial).

In reviewing the ineffective-assistance
claim in the actual-innocence context, we con-
sider, in addition to the evidence actually
offered at trial, the evidence Murray alleges
should have been included. Murray argues
that if his trial counsel had explored an inde-
pendent psychiatric evaluation with greater
vigor, the evaluation would have shown that

Murray was both under the domination of his.

brother and under the influence of drugs at
the time of the crime. Murray urges that
these factors would have prevented the jury
from convicting him of first-degree murder.
We. disagree. The jury might have been
persuaded by the additional psychological ev-
idence; but it also could rationally have re-
jected it. It could have disbelieved the ex-
perts Murray now says trial counsel should
have presented; or it could have believed
them but nonetheless concluded, as a matter
of its own moral judgment, that Murray
should be held fully responsible.

Next, Murray argues that his death sen-
tence violated his constitutional rights, be-
cause the jury was unconstitutionally in-

structed that a ‘finding of mitigating circum- —

stances had to be unanimous. The petitioner
did not raise this: claim in his state, post-
conviction review, see Murray v. State, su-
pra, 775 S.W.2d 89, but we need not pursue
the permutations and combinations of the
procedural-bar doctrine with respect to this
claim. . We have previously rejected it on the

‘merits, ¢.g., Battle v. Delo, 19 F.3d 1547, 1562

(8th Cir.1994). (alternative holding). This
panel is bound by that holding and it re-
quires us to reject Murray’s claim based on
Mills v. Maryland, 486 U.S. 367,108 S.Ct.
1860, 100 L.Ed.2d 384 (1988).

[21] Murray also argues that the jury
instruction defined “reasonable doubt’ in a
manner which allowed the jury to convict him
on a lesser standard. than constitutionally
required.. The Due Process Clause of the
Fourteenth Amendment protects an accused
from conviction “except upon proof beyond a

- reasonable doubt of every fact necessary to

constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364,
90 S.Ct. 1068, 1072-78, 25 L.Ed.2d 368
(1970). Murray raised this claim before the
Missouri Supreme.Court and before the Dis-
trict Court; therefore, we consider it on the
merits. ed

The challenged instruction read:

A reasonable doubt is a doubt based upon —
reason and common sense after careful and
impartial consideration of all the evidence
in the case.

Proof beyond a reasonable doubt is proof
that leaves. you firmly convinced of the
defendant’s guilt. _The law does not re- |
- quire proof that overcomes every possible
doubt. If, after your consideration of all
the evidence, you are firmly convinced that
the defendant is guilty of the crime
charged, you will find him guilty. If you
are not so convinced, you must. give him
the benefit of the doubt and find him not

guilty. 7
This instruction, Murray argues, would lead
a reasonable juror to believe that a finding of

guilt could rest on a degree of proof less than —
that required by the Due Process Clause. In

‘support of this argument, Murray. contends
that the words “firmly convinced” equate the

burden of proof in his criminal trial with the
less stringent, clear-and-convincing standard
required in some civil cases. Murray cites a
Supreme Court decision, Cage v. Louisiana,
498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 |
(1990) (per curiam), which found a jury in-
struction to be unconstitutional, as support
for. his argument. In Cage, the Court held
the following instruction constitutionally in- .
firm:

If you entertain a reasonable doubt as to
any fact or element necessary to constitute
the defendant’s guilt, it is your duty to give
him the benefit of that doubt and return a
verdict of not guilty. Even where the
evidence demonstrates a probability of
guilt, if it does not establish such guilt
beyond a reasonable doubt, you must ac-
quit the accused. This doubt, however,
must be a reasonable one; that is one that
is founded upon a real tangible substantial

(25 MISSOURI uy)
NEUSLEIN, Jacob, white flanged at St. Louis, Mo., on June 19, 1857,

"From The St. Louis REPUBLICAN, July 28, 1856,
"We Saturday announced the arrest of one Jacob Neisline, on a charge of murdering his wife,
Mary Ann Neisline, A coroner's inquest was held yesterday morning offi the view of the body
of the deceased, and from the evidence, we learn as follows: The family have four 2 years
past been residing on a tract of about three acres of land, situated Southwest of the new
Reservoir, all of which land was in a state of cultivation, and the premises of their
dwelling was neat and clean,
"It appears that Neisline, who was addicted to,drink, has been for the last week abusing
his wife in themost brutal manner, About 10 o clock, Friday morning last, cries of distress
were heard from the house, and a man from an adjacent house went to the house, When he
arrived there he heard a bustling in the cellar and went there, Neisline was in the pogi-
tion of applying some fluid upon the head of the prostrate body of his wife, but witness
could not ell whether it was water or liquor, Witness told the husband, 'she is dead;
what is the use of doing that?! Husband replied, 'I know it, and I killed her, She was
drunk! This occurred in a small cellar under the building. Witness started to get
assistance, and when he returned he found that the mrdered woman had been dragged from the
Gealar by the husband to the room above,
"It is unnecessary to detail the shocking scene which presented itself on view of the body,
"Themurdered is well located upon a fine tract of land; he has a well cultivated garden,
and everything about the premises indicates husbandry and affiliation, The lifeless corpse
of her, who, as we were informed, was the main stay and prudent manager of their little all,
was spotted from brutal assaults, kicks, blows from billets of wood, and other missiles
unknown from the 'crown of her head to the soles of her feet,'
"It has been stated by some of the evening papers that deceased was an intemperate woman,
No such evidencewas heard before the Coroner, nor was any such statement made by the
neighbors who weremost likely to knowe the case will undergo a judicial examination,"
TIMES, New York City,8=2-1856 (2=3).

Notes: See worksheet prepared on hanging of Neuslein, LaPointe and Shoultz.

NAVE, Emmett Clifton, black, 56, injection MOSP (Cole) July 31, 1996.

NAVE, Emmett Clifton, black.-”Jefferson City-The Missouri Supreme Court set a July
31 execution date for Emmett Nave, 56, convicted of the ‘84 killing of his neighbor, Geneva
Roling.-USA Today, 5/31/1996. |

“Execution: Missouri executed Emmett Nave, 56, by injuection for the 1983 gunshot
murder of his landlady, Geneva Roling, of Jefferson City. It was the state’s 20th execution since
1988. At the time, Nave was on parole for rape and armed robbery. He also sexually assaulted
four women he took hostage after he murdered Roling.”-USA Today, 8/1/1996.

13 1/96 -- 6:38 AM

Missouri Man Executed For Killing Landlady

ST. LOUIS (AP) - A man was executed by injection early today for shooting his landlady to death less than a year
after he was paroled from prison on rape and armed robbery charges.

Emmett C. Nave was executed at the Potosi Correctional Center for shooting Geneva Roling 10 times with a rifle in
her Jefferson City apartment in 1983.

Nave, 55, had earlier confronted her about parking problems, lack of heat in his apartment and problems with his mail
delivery, prosecutors said.

After the killing, Nave went to a nearby hospital and took four women hostage at gunpoint. He forced the women into
his car and drove to the home of one of them.

Nave sexually assaulted the hostages before three of them escaped and flagged down a state trooper.

Nave was paroled from the Missouri State Penitentiary in March 1983 after serving about 25 years of two life terms
for raping a woman he took hostage during an armed robbery. Eight months after being released, he shot Roling to
death.

Nave was sentenced to death for the killing because he was a repeat offender, the judge said at the time.

Defense lawyer Allen Harris based his appeals on his claim that Nave's conviction in 1965 for rape and armed
robbery should have been thrown out.

Harris contended that Nave was coerced into pleading guilty by his lawyer, who was handling the case pro bono and
not getting paid. Without that conviction, there would have been no basis for the death sentence, Harris argued.

reeset TM it 2.0 (tN cagiet

Tampa B Bay Online j Tribune | Weather Conler Florida’ Travel |
: ennai Tampa Tribune -

PRODIGY ® Web Browser: natil00r.htm (http://www.tampatrib.com/ap/natil00r.htm) Page 1

Missouri Man Executed
AP 31-Jul-1996 2:18 EDT REF5349
Copyright 1996. The Associated Press. All Rights Reserved.

The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.

POTOSI, Mo. (AP) -- A man was executed by injection early Wednesday
for shooting his landlady to death in 1983 eight months after being
paroled from prison on rape and armed robbery charges.

Emmett C. Nave was executed at the Potosi Correctional Center for
shooting Geneva Roling 10 times with a rifle in her Jefferson City
apartment.

Nave, 55, had earlier confronted her about parking problems, lack of
heat in his apartment and problems with his mail delivery, prosecutors
said.

After the killing, Nave went to a nearby hospital and took four
women hostage at gunpoint. He forced the women into his car and drove

to the home of one of them.

Nave sexually assaulted the hostages before three of Cian secaped
and flagged down a state trooper.

Nave was paroled from the Missouri State Penitentiary in March 1983
after serving about 25 years of two life terms for raping a woman he
took hostage during an armed robbery. Eight months after being
released, he shot Roling to death.

Nave was sentenced to death for the killing because he was a repeat
offender, the judge said at the time.

Defense lawyer Allen Harris based his appeals on his claim that
Nave’s conviction in 1965 for rape and armed robbery should have been
thrown out.

Harris contended that Nave was coerced into pleading guilty by his
lawyer, who was handling the case pro bono and not getting paid. If
that conviction had been removed there would have been no basis for the
death penalty, Harris argued.

» custody.

rdner repulsive.
vould rather be
ut with him.

unge said Gard-
roses a few days
ance. “He liked
specially in front
t didn’t impress

> at the lounge
f, Gardner would
{just sit and look
n were afraid to
: said. “Gardner
ich them out.”

imaro was still
spot in the Blue
ig lot, where she
f August 31. In-
missing persons
Camaro for fin-
ed it for any other

ain her mys-
ven cards of
re raised from the

e
u.

cnet na ettthati RE e

i i, Sig

Last photo taken of Tiny Mercer (left) before‘ his executlo

n, shows how much he had slimmed down in

prison. With him is another condemned inmate. Below Is Steve Gardner, serving life.

The manager of the lounge said that '
business ‘was off the lastnight Karen
worked. She told Sgt. Wilson that Gard-
ner was drinking at the bar with sev-
eral other Missing Links. Karen left,
but:came right back, saying she could-

‘n’t get her cat started. Gardner of-

fered to help, and they left together.
The next night Karen failed to show
up for work, which was unusual. The

_ manager ‘asked Gardner if he knew
- where she was. “How should I know?”

was his answer. >

Sgt. Wilson decided to drive out to
the roofing company where Gardner
worked to have a talk with him about
Karen and their movements’ on the
night of August 30th. aes
Gardner said that on the night in ques-
tion, he and Karen went to Sambo’s
restaurant, about a block away from the
lounge, foria cup'of coffee. On the
way back.to the lounge they stopped
by a mini mart and he bought a six-
pack of beer. They drove around a
while, drinking the beer.

“You're not such a bad guy after all,”

. Karen supposedly said.

“Then how about a date Friday
night?” he asked. Karen said that would
be September Ist, the weekend of the
long holiday. She was planning to g
to the Lake of the‘Ozarks. -

“Call me, Steve,” she said, “If I don’t

go, you have a date.”
“I called,” Gardner told the sergeant,
“but I got no answer.”

Sgt. Wilson showed photographs of
Karen and Gardner to employees of
Sambo’s restaurant and the mini-mart,
but none of them remembered seeing
either of them before.

Convinced that Karen Keeton had
met’ with foul play, Sgt. Wilson had
the records of all known sex offend-
ers in the area pulled and most of the

staff of Kansas City Department of

Criminal Investigations was occupied
in sifting through them, attempting to
find a suspect.

The lead that broke the case wide
open came from the manager of the
Blue Seven Lounge when she was in-
terviewed for the second time by Sgt.
Wilson. She remembered that a man
who said he was a member of the
New Orleans Saints football team of-
fered to buy half ownership of the
lounge. After substantial negotiations,
they agreed on a price and he gave
her a cashier’s check for $62,000.

Gladdened over the sale, the owner
celebrated with an elaborate party and
Gardner and several of the Missing
Links were there. Gardner got drunk,
and she overheard him discussing
Karen Keeton with his motorcycle
cronies. From what she could make out,

as ap ee iE ie rte tt one

Karen had been missing the allotted

24-hours when Sgt. John Wilson,
commander of the Missing Persons Di-
vision, entered the case. He also paid
Coppolino a visit, but obtained very lit-
tle additional information. He sent
Karen’s description to every morgue,
hospital, and police agency within!
one hundred miles. “
Scores of policemen, some tugged by
baying bloodhounds, pressed their dra-
matic search across the flatlands and
far into wooded areas: Township po-
lice were aided by firemen and the fran-

tic search continued long into the night, ©

the headlights from police’ and fire
apparatus penetrating into the darkened
woods and adjacent fields. But the
search wasn’t successful.

Sgt. Wilson contacted the news media.
and went on the air to announce that
after one month of searching for Karen
Keeton without success, her family was
offering a reward of $1,000 for infor-
mation leading to her whereabouts. But
the investigation was losing steam by
now .... no one claimed the reward. |

In September, detectives learned
that George Hui, a Missing Link mo-
torcycle gang member, who was cur-
rently awaiting trial on a rape case con-

cerning a 17-year-old, was being held ,

in the Cass County jail. They ques-.
tioned him about the Karen Keeton
case. When they showed him a pic-
ture of Karen he said he had never seen
her before.

The rape case for which the biker was
being held, involved five Missing Link
motorcycle members who were well-
known to various law enforcement
agencies in the area. Steve Gardner, 24,
was the alleged leader of the Missing
Links, but everyone knew it was
George “Tiny” Mercer who ruled the
roost. Tall, straggly-haired Gardner was
a high school dropout and former
Marine who still wore combat boots.

Four of them kidnapped a 17-year-
old high school cheerleader, drove
her to a remote field in Cass County,
stripped her naked, and raped an
sodomized her repeatedly. —

The gang rape over, they placed the
horrified girl in the back of the pick-
up and drove her back to Kansas City.
While the return trip was in course,
“Tiny” Mercer, who weighed over

300 pounds, climbed into the back of
the pickup and raped her again. She
was driven to the house of another
Missing Link member and he'had his
way with her.

Massive 300-pounder Tiny Mercer being taken into custody.

“When ‘they dropped her off several
blocks from her house, Mercer warned
her, “Tell the pigs, and you’re a dead
little'girll? 8" <oere >

But the brave girl did tell the po-
lice. Consequently, four Missing Links
were arrested, including Mercer.

Despite a strong alibi and repeated |

denials, Mercer was arraigned on

charges of rape, sodomy and kidnap-

ping in connection with the 17-year-
. old cheerleader. ae:

On August 30th, Mercer was released.

on bail raised by his fellow Missing
Links. He was still awaiting trial.
Police began showing Karen’s pic-
ture around town. One witness told
‘them that Steve Gardner had been after

' Karen Keeton to go out’ with him.

_She repeatedly turned him down, The
| witness said Gardner was employed by
and moonlighted asa bouncer at the
Blue Seven Lounge. Karen worked
there as a cocktail waitress. People

questioned by’ police at the lounge '

said Karen found Gardner repulsive.
She told them she would rather be
found dead than go out with him.

‘The owner of the lounge said Gard-
ner sent Karen a dozen roses a few days
before her disappearance. “He liked
to play the tough guy, especially in front
of Karen,” he said. “It didn’t impress
her one bit.”

Another employee at the lounge
said that on his days off, Gardner would
come to the lounge and just sit and look
at Karen. “Other men were afraid to
even talk to her,” he said. “Gardner
would threaten to punch them out.”

Karen’s white Camaro was still
parked. in the same spot in the Blue.
Seven Lounge parking lot, where she
left it, on the night of August 31. In-
vestigators from the missing persons

bureau processed. the Camaro for fin-
_aroofing company in, Lenexa, Kansas, ..

gerprints and scrutinized it for any other
evidence that might explain her mys-
terious disappearance. Seven cards of
latent fingerprints were raised from th
interior of the vehicle. sy

Last photo take:
prison

« ceeeemecrenmasaaasaasape reece eT

Gardner had driven Karen to a house
in Belton where he wanted her to
have sex with several Missing Link
members. When she refused “we gang-
banged her and wasted her,” Gardner
had said.

By now Sgt. Wilson was convinced
that Karen was dead and that Gardner
knew something about it. He obtained

an arrest warrant and subsequently .

Gardner was taken to the Cass Coun-
ty jail in Harrisonville, for questioning.
He refused to budge from his original
statement.

“How about taking a lie detector
test?” Detective Richard Gentry asked
the suspect. “If you’re telling the
truth, you’ve nothing to fear.”

Gardner agreed, and was guided to
the polygraph room, where the test was
administered by Specialist Harold Old-
ham. Gardner was asked:

Q — Was Karen Keeton all right the
last time you saw her?

A - Yes.

Q - Did you kill her?

A - No.

Q - Can you take me to Karen right
now?

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A- No.

Q - Did you have anything to do with
her disappearance?

A-No.

Q - Did you tell the truth about
Karen’s disappearance?

A- Yes. .

After going over. the results of the

test, Oldham was convinced 'that Gard-
ner was telling the truth when he said
he didn’t kill Karen. However, he told
Gentry, Gardner was deceptive in his
answers to beveral of the other ques-
tions, - ;
The: police Grinded up all the mem-
bers of the-Missing Links who were
at the lounge celebration when Gard-
ner bragged about the gang rape and
“wasting” of the pretty cocktail wait-
ress. Under heavy grilling, one mem-
ber finally broke down and admitted
that Gardner bragged he “blew away
Karen.” Another bike rider acquain-
tance of Gardner said that Steve told
him he had killed Karen and dumped
her body “where. nobody will ever
find it.” ..

In exchange for their cooperation, the
county prosecutor agreed not to pur-
sue any charges against them.

With the information at hand, po-
lice began retracing Karen’s move-
ments on the night she vanished,
putting pressure on every witness
who was present on the evening she
left with Gardner. It paid off. One
customer said he saw one Missing
Links member leave shortly before
Karen left with Gardner. The witness
didn’t know his name, but he heard
his cronies refer to him as “Tiny.” It
immediately rang a bell.

The sleuths knew this man to be
George “Tiny” Mercer, a bad actor with
a long arrest record.

Ever since Gardner was arrested Tiny
Mercer had made himself scarce. But
police finally located him through street
informants and he was taken to the Cass
County jail for interrogation. When de-
tectives showed him a photograph of
Karen, he admitted he was at the Blue
Seven Lounge on the night of August
30th, but claimed he didn’t see Karen
there. He said he left early to attend a
party for his boss on the roofing job
that was thrown in Overland Park.

When the party died down, he and
another biker friend named Lee stopped
by the lounge for a couple of beers. 4

WARNING : THE CONTENTS OF THIS hg
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DISCRETION IS ADVISED.

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tion at hand, po-
g Karen’s move-
it she vanished,
m every witness
a the evening she
It paid off. One
saw one Missing
ve shortly before
‘dner. The witness
me, but he heard
him as “Tiny.” It
bell.

w this man to be
er, a bad actor with

r was arrested Tiny
amself scarce. But
{ him through street
as taken to the Cass
rogation. When de-
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ae night of August
e didn’t see Karen

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He got home around midnight and went
straight to bed. The following morn-
ing he went to the hospital, where he
stayed all day with his ailing wife.

“How about taking a lie detector test,
Tiny?” a detective asked.

“Sure. I’ve got nothing to hide,” Tiny
answered. “But first let me check
with my lawyer. I'll call you.”

Detective Jim Martin wanted to talk
to Mercer’s neighbors about him. He
began with Mercer’s landlord, who said
he had locked Mercer out of his house
because he was three months behind
in his rent.

He said after he had evicted Mercer
he found a sawed-off scattergun his ten-
ant had evidently left behind. He turned
it over to Martin, who added it to a col-
lection of evidence he was gathering
for the case.

When police again contacted Mer-

cer about his taking the polygraph

test, he told them, “Take your damn
polygraph and shove it! My lawyer says
you can’t make me take one, so go to

“hell!”

When police ubbedgned Missing
Link member J ohn Kerns, he verified
that Mercer had'‘told him he was at
the cocktail lounge on the night of the
30th, but left early and was home in
bed by 12:30 a.m. He said he didn’t
know Gardner all that well, and could-
n’t say anything about him. He seemed
upset when Wilson asked, “Mind if
we have a look at that Ford pickup
you have parked in your driveway?”

It was obvious that he did mind, but
was afraid to turn them down. Reluc-
tantly, he signed a consent to search
form.

Wilson made a quick call, ‘and with-
in the hour lab technicians were vac-
uuming the vehicle for hair and blood
samples. At this point Kerns said, “You
fellows don’t think I.had anything to
do with that girl; do you?”

“Just part of our job,” one of the
detectives told him. “We’re not ac-

cusing you of anything. Anyone else

ever drive your: truck?”
“Yeah, Mercer and:Gardner borrow

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ready to crack.

They were right. On September 29th,
Sidney Willens, a Kansas City attor-
ney, called Wilson and said his client,
John Kerns, wanted to talk about the
Keeton killing. “What does he know?”
Wilson asked the attorney. The an-
swer came back, “Everything.” It was
a repulsive tale.

Kerns, who lived with Mercer, was
watching television when Mercer came
staggering in about 12:30 a.m. David
Lee, another Missing Link, was with
him. The three Missing Links were
seated at the kitchen table drinking beer
when Steve Gardner walked in with
Karen Keeton. For several minutes
the entire group sat talking and guz-
zling beer. Tiny Mercer got up and went
to the bathroom and when he came
back he was carrying a sawed-off shot-
gun. He walked around behind Karen
and tapped her on the shoulder with the
shotgun. Bewildered and horrified by
the sight of the twin muzzles menac-
ing her, she looked up at the hulking
Mercer.

“Get your ass upstairs, bitch,’ Mer-
cer grunted.

Karen was shocked by his actions,
and obviously frightened. She turned
toward Gardner, who had earlier pro-
fessed his love for her, for protection.

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MURRAY, Robert A., LI MOSP Huly 25,

1995

Killer Put To Death In Murder
Of Two Cabdrivers In St. Louis

By Carolyn Tuft
Of the Post-Dispatch Staff
Hours before his execution early to-

day at the Potosi Correctional Center, -

Robert ‘Tony’? Murray met with his
brother, William K. Murray. Both
brothers say it was William Murray
who bound, gagged and killed two La-
clede Cab drivers 10 years ago in a St.
Louis apartment.

Robert Murray, 32, was pronounced
dead at 12:07 a.m., four minutes after
prison officials began the injections. His
last statement was, ‘‘Peace.’’ He
opened his mouth wide and gasped for a
breath when he was given the first
drug, intended to knock him out.

Murray spent the day Tuesday in a
holding cell next to the execution cham-
ber. He said he spent his time “eating
anything and everything” and bidding
goodbye to his family.

Murray was convicted. of kitties Jef-
fery Jackson and Craig Stewart in 1985.
He was the third person executed in
Missouri this year. Larry Griffin and
Emmitt Foster, both of St. Louis, died
by lethal injection earlier this year for
murders in St. Louis. The state has
executed 13 murderers since it rein-
stated the death penalty in 1989.

Murray ran out of appeals several

weeks ago; at 11:30 p.m. Tuggday,

Gov. Mel Carnahan said he would not
intervene, ;

-Murray, the youngest of six children,
had told the courts that it was his only
brother, William Murray, who was the

trigger man. William Murray admitted

he killed the men, but not until 1991 —
after he was sentenced to life in prison.

Tuesday afternoon, William Murray
visited his condemned brother.

“IT. told him I’m just holding on,”
Robert Murray said Tuesday from his
cell, his voice cracking. ‘‘He told me he
couldn’t take it that I was going down
for something he did.”

The crime happened Dec. 6, 1985, in-

Jackson’s apartment in south St. Louis.
Court records give this account:

The two victims and two women
were watching television while smoking
marijuana, snorting cocaine and drink-
ing. Just after midnight, William Mur-
ray knocked on the door, pulled a pistol,
ordered the four to the floor and an-
nounced a holdup. William Murray later

said he was angry the two men had

earlier robbed him of money and drugs.

Robert Murray and another man, lat-
er acquitted, entered the apartment.
Robert Murray held a gun to the four,

while the two victims were tied up and

gagged. and his brother ransacked the
apartment, The brother ii oll

ret mE ys dh LRP NNN Ee RY SENSE HE

ST.LOUIS POST-DISPATCH

four and demanded more money. The
intruders decided to wait for another
man to arrive, so they could rob him.

William Murray took one of the wom-
en into the kitchen and raped her, while
the other two intruders watched. Wil-
liam Murray then took Jackson in the
kitchen, beat him and stabbed the floor
beside him.

One of the women escaped by jump-
ing through a window and later testified
she heard gunshots as she ran down the
street to get help. The other woman
ran down the stairs. She later testified
she looked back and saw Robert Mur-
ray shoot Stewart in the back.

Emma Jackson, Jackson’s mother,
said she was waiting by the radio for
news that the state had executed her
son’s killer. :

“Tt’s the best day of my life and my
son will be in heaven clapping for joy
and crying,’’ Jackson said. ‘“‘My son had
pleaded for his life, but you see what
that got him. He’s been in his grave for
10 years while Tony and the other
killers have been allowed to live.”’

One of the victims’ brothers, John
Hone, witnessed the execution. After
Murray died, Hone expressed relief.

“T’ll bet he had a lot to think about. It
is sad, because I’ll bet his brother feels
real bad right now. Justice was serged.”

NEWS ANALYSIS

° WEDNESDAY, JULY sah 1995

786

city Sanitarium, where defendant was taken
for examination as to his sanity, which stat-
ed, in substance, that defendant had been
given a physical examination as well as a
thorough examination and observation as to
his sanity, and that it was the unanimous
opinion of the entire staff that he was sane
and a malingerer. Defendant objected on
the ground that the report was hearsay. We
need not determine the right of the court to
consider the report as to,the continuance, for
it is otherwise evident, on the affidavit filed,
that the granting of the application for a
continuance was within the discretion of the
trial court, and that it did not abuse its dis-
cretion.

[4] III. The prosecuting attorney, as a pre-
liminary to the examination and qualification
of the jurors to try the cause, made a short
statement of facts. The statement declared,
in substance, that at the time defendant shot
and killed Mildred White, his common-law
wife, he also’ on that occasion shot) Marcus
Bass and Becky Bass, the proprietors of the
grocery store; and wounded the infant child
of deceased and defendant. This statement
was not error, for, in the examination and
qualification of the jurors, it tended to show
the surrounding facts and circumstances, and,
as the facts were admissible on’ the theory
of res gestee (State v. Harrison, 263 Mo. 642,
174 S. W. 57; State v. Schrum, 255 Mo. 273,
164 8. W. 202), they were admissible in the
proper qualification of the jurors. The facts
on the trial developed and tended to support

Mo. .
x

' the preliminary statement of the prosecuting

attorney. As the evidence as to the other
killings was admissible, the preliminary
statement of the prosecuting attorney in re
lating the facts did not constitute error.

[5] IV. The evidence on the part of the
state developed autopsies or post mortem ex-
aminations by surgeons on the bodies of Mar-
cus Bass and Becky Bass, and tended to show
the location and result of the bullet wounds
on each of them. Defendant charges that the
admission of the evidence was error. In sub
stance, it is said in State v. Rasco, 239 Mo.
535, lde. cit. 574, 575, 144 S. W. 449, referring
to post mortem examinations on others than
the one defendant was charged with killing, .
that evidence as to the condition of the bodies
was admissible as a part of the res geste, as

well as to show how one of the parties killed

came to her death; that it was competent
not only as a part of the res gest, but as
bearing on the question of deliberation. We
see no reason to recede from the ‘position
heretofore taken by this court on that sub-
ject.” For the same reasons the testimony of
the doctor as to the wound on the baby girl
was admissible. No error resulted in-the ad-
mission of the evidence. ‘Moreover, the court
did not err in refusing to declare a mistrial
and discharge the jury.

(6] V. Defendant, in his motion for a new
trial, complains of the giving of instructions

22 SOUTH WESTERN REPORTER, 24 SERIES

1, 2, 3, 4, 5, and 6, on the ground that they
do not declare all the law applicable to the
case under all the testimony; that they were
misleading and tended to confuse the minds
of the jurors. Whether this is a sufficient
assignment we need not decide. Defendant
also assigned, in the motion, six separate ob-
jections to the sufficiency of instruction 3, and
has. briefed only the question of error as to
that instruction. However, the question of er-
ror in any of the instructions is not before us,
for defendant failed to except to the action
of the court in giving the instructions, al-
though he objected to them. Even though a
defendant objects to an instruction, error
cannot be predicated thereon, unless he ex-
cepts and preserves his exception in a bill
of exceptions. The same rule prevails in
criminal as in civil cases. State v. De Mosse,
9S Mo. 540, 11 8. W. 7381; State v. Foster, 115
Mo. 448, 22 S. W. 468 State v. Elvins, 101
Mo. 245, 13 8. W. 9387; Franklin y, Holliway
(Mo. App.) 203 S. W. 664. Notwithsta anding,
we have critically examined the instructions
challenged, and find that the objections made
to them are not tenable. We have particular-
ly weighed instruction 3, and have concluded
that its effect on the jury was favorable to
defendant rather than prejudicial.

[7] VI. It is said that the court erred in
permitting the prosecuting attorney, during
the voir dire examination of the jurors, to
State to them, while under examination, that

‘the state would ask, in the event of a convic-

tion, the twelve men trying the case to as-
Sess the death penalty. The prosecuting at-
torney informed the prospective jurors that
defendant was charged with murder in the
first degree, and, if the court instructed on
murder in the first degree only, then, on con-
viction, the discretion of the jury obtained
to assess the punishment either at life im-
prisonment in the penitentiary or at death
by hanging; and that in this case the state
would ask the twelve men trying this case,
upon a conviction, to assess the death penal-
ty. We are unable to see error in the fore-
going statement. It was within the province
of the prosecuting attorney, in his argument
to the jury, to say to the jurors that the facts
merited the death penalty. It was then the
province of the jurors to exercise their discre-
tion. The statement was not only necessary
to determine the qualified jurors and to as-
certain their views and determine their.
scruples, but it was fair to defendant, and
informed him at the beginning of the trial of
the attitude of the state.

[8] VII. We must consider the sufficiency
of the indictment although it has not been
attacked by defendant in any manner. It
comprises one count only. It charges an as-
sault and the shooting of Mildred White with
a bullet from a pistol, thus inflicting upon
her a mortal wound. It also charges an as-
sault and the stabbing of her with a knife.
thus inflicting upon her a mortal wound ; and

2 st ss
fag od
MS ¥
tae A Be
a
ase ot:
Ae ~,
: ae?
i
™
Fe
yt
x
.
«
ae |
|
Sy: |
*
A.
es
> #4
Bi

rout they
»ppli e to the
; that they were
mfuse the minds
s is a sufficient
‘ide. - Defendant
six separate ob-,
astruction 3, and
2 of error as to
1@ question of er-
is not before us,
pt to the action
instructions, al-

Even though a
struction, error
1, unless he ex-
eption in a bill
ule prevails in
ate v. De Mosse,
te v. Foster, 115
ev. Elvins, 101
‘lin v. Holliway
otwithstanding,
the instructions
objections made
have particular-
have econcuded
as favorable to
icial,

court erred in
ttorney, during
- the jurors, to
amination, that

ent o convic-
the to as-
pros ing at-

ive jurors that
murder in the
t instructed on
y, then, on con-
jury obtained
ier at life im-
‘y or at death
case the state
ying this case,
1¢ death penal-
or in the fore-
in the province
) his argument
s that the facts
> was then the
se their discre-
only necessary
ors and to as-
termine their.
iefendant, and
of the trial of

the sufficiency
has not been
y manner, It
charges an as-
ed White with
nflicting upon
charges an as-
with a ‘knife.
l wound; and
aren

-~ pe

ars

STATE y. TALLY «—- | Mo. [7&7
22 S.W.(2d)

of which aorta wounds the said Mildred
White did die. The evidence tends to show
that defendant shot Mildred White three
times and stabbed her with knives thirteen
times, and that any and all the bullet wounds

' and stab wounds were mortal and fatal. The

evidence tends to show one assault only, for
the assault and acts were continuous and un-
interrupted. It cannot be said: that allega

‘ tions of the indictment or the force of the evi

dence develops an impossible state of facts
State v. McDonald, 67 Mo. 13. Consequentl
the allegations that deceased died as the r
sult and from the effect of assaults an

wounds inflicted upon her with two lethal,

weapons by defendant does not invalidate the
indictment. In other respects the indictment
conforms to established precedents. The rec-
ord proper has also been examined as to oth-
er particulars, and we find no error in it.

It follows that the judgment must be af-
firmed. It is so ordered.

-HENWOOD and COOLEY, CC., concur.

PER CURIAM. The foregoing opinion by
DAVIS, €., is adopted as the opinion of the
court.

Ajl of the Judges concur, and execution
set for January 31, 1930.

STATE v. TALLY. (No. 29802.)

Bopreme Court of Missouri, Division No. 2.
Dee. i1, 1929,

A. Criminal law €>1116—Motion to quash in-
formation, not contained in bill of exceptions,

cannot be considered on appeal.

Ruling of trial court on motion to quash
information cannot be considered on appeal,
where motion is not contained in bill of ora

tions.
2. Indictment and Information €>125(31)—In-

formation charging defendant with selling

‘hootch, moonshine, and corn whisky hg hot
describe more than one offense.

Information charging defendant with sdiee
hootch, moonshine, and corn whisky did not
describe more than one offense, though whats
act was described by different words.

3. Jury €>131(2)—Trial court has large dis-
cretion In allowing examination of prospec-
tive jurors,

Trial court is vested with large discretion
in allowing examination of prospective jurors as

to their qualifications.

4, Jury €=131 (4)—Objection was s properly sus-
tained to examination of-juror on voir dire
as to what he would do, ‘lf he alone had doubt
as to guilt.

Objection was properly sustained to ques-
tion asked juror, in examination of jury panel on

voir dire by defendant’s attorney, as to what
juror would do in case 11 of the jury thought
the defendant guilty, but he had doubt as to
guilt; counsel not being permitted in advance
to ask juror to speculate on what he might do
under influence of certain contingencies sub-
sequently arising.

/ 5. Witnesses €=244—State’s counsel could ‘ask

leading question of state’s witness, who en-
_ deavored to evade direct statement.

Where evidence of witness showed through-
out that he was an unwilling witness for the
State, and where he endeavored to evade di-
rect statements, state’s counsel could ask lead-
ing question.

‘ 6. Intoxicating liquors €=238(3)—Whether

liquor designated by witness as white mule
was within information charging sale of
-hootch, moonshine, and corn whisky held for
jury under evidence,

In prosecution for sale of hootch, moon-
shine, and corn whisky, evidence held sufiicient
to warrant submission to jury of question
whether liquor designated by witness as white
mule was in fact within terms of information.

7. Witnesses €2246(1)—Trial judge’s examina-
tion of unwilling state’s witness as to effect
on him of liquor purchased held not er-
roneous, where record did not show judge
assumed hostile attitude.

/ Where state witness in liquor prosecution’
testified unwillingly concerning purchase of lig-
or, and state’s attorney.failed to bring out the.
kind or effect of the liquor purchased, it was

‘not prejudicial error for the trial judge to ask

the witness what effect the liquor had on him,

:where it did not appear from the record that

the judge was prejudiced, or that his attitude
was such as to convey to the jury that he was
biased against defendant.

8. Criminal law €—655(1)—Judge’s conduct in
calling prosecutor to bench after state rested,
and suggesting further line of testimony, and
in reopening: case, held not prejudicial error,
where any bias of judge was not apparent to
jury.

Conduct of trial court in calling prosecutor
to bench after state had rested. and suggesting
that another witness be called to bring out
necessary facts, and in reopening case for that
purpose, held not prejudicial error, where the
suggestion was not known to the jury, and any
bias of judge did not appear to them.

Appeal feom, Circuit Court, Mississippi

County ; Frank Kelly, Judge.

Levy Tally was convicted of selling hootch
and moonshine, under the name of white
mule, and he appeals. Affirmed.

J. ©. McDowell, of Charleston, for appel-
lant.

Stratton Shartel, Atty. Gen. (Robert D.
Durst, of Springfield, of counsel), for the
State. :

WHITE, C. J. In the circuit court of Mis
sissippi county, February 15, 1929, the defend-
ant on a jury trial was found guilty of sell-

€=For other cases see same topic and KEY-NUMLER in all Key-Numbered Digests and Indexes

ing facts and circum-
leo ‘ory of res

-—Homicise C>161—
'r post mortem ex-
led by defendant at

it as res geste and |

her, the admission of
developing autopsies
Ns on bodies of oth-
e same time as per-
s not error as being
t of.res gesta, but
eliberation.

{)—Supreme Court
of error in instruc-
od to except thereto.
1 instructions is not
re defendant failed
t in giving instruc-
hereto, since error
Lructions, unless de-
es his exception ina

Statement of pros-
Hire examination of
death penalty held

der, statement of
yoir dire examina-
ld ask, in event of a
death penalty, held
iin his province in
that facts merited
ht was province of
etion,
ctme r murder
of a tions that
Its and wounds: In-
Dons.
nthe first degree
son of allegations
end from the effect
tted upon her with
ndant, any one of
nd fatal.

Circuit Court;

ricted of murder
peals.. Affirmed.
pharles M. Clarke,
Nant.

n., and Smith B.
r the State.

ment filed in the
f St. Louis, the
aint with murder
b a jury, the ver-
rder in the first
ment he stands

punishment at

h behalf .of the
hat, previous to
nt and one Mil-

and Indexes

co ee

,
wa 3h. *~ .
AR b ata Soe hive

cet

a en oP Selb =

4
Ss
4
8

STATE v. MOSLEY | ‘ -Mo, 785
22 S.V.(2d)

dred White, respectively a negro and negress,
had cohabited, without the ceremony of mar-
riage, as man and wife for a period of ap-
proximately four years. On the day men-
tioned, they resided at 1820 Division street in
the city of St. Louis. Across Division Street
at No. 1821, one Marcus Bass and his wife,
Becky, operated a grocery store, probably un-
pretentious, for it may be inferred that they
waited on the trade. About 8 o’clock in the
evening of September 10, 1927, defendant sent
Mildred, his common-law wife, to the grocery
store mentioned to purchase supplies. Mil-
dred carried in her arms a baby girl less than
a year old, the offspring of her cohabitation
with .defendant. -Defendant’s written and
Signed confession advises that Mildred had
been gone for a longer time than he thought
necessary, so he followed her to the gr ocery
store and found her standing in front of tha
counter. Defendant asked Mildred why she
had been gone so long, and requested her to
go home. Thereupon Mildred ran behind the

‘counter, and defendant drew from his pocket

a revolver and began shooting at Mildred.
Marcus and Becky Bass ran between defend-
ant and Mildred, and defen@ant shot both of
them. ‘The confession further states that the
reason he shot Mildred was that she had
been trifling on him, that she had been late in
coming home from work, and that she was

also gone very long when she went to the
store. At the time he shot Mildred she was

holding the baby girl.. After shooting her,

she ran to the rear room and fel! on the

‘floor, whereupon he took a cheese knife from

the counter and stabbed her several times.
The evidence further tends to show that
Mardis Bass died instantly ‘with a bullet
through his heart. Becky lingered about four
days, and died from peritonitis, caused by a
bullet wound. The baby girl was shot in the
lower left leg. Mildred suffered three gun-

_ Shot wounds, and was stabbed by defendant
- thirteen times, any of which was sufficient to

cause death, . A negro man by the name of
Brooks had his attention drawn to the ac-
tions of defendant by Mildred’s eight. year
‘old boy Sammy, who cried, “He has killed my
mother.” Brooks then looked through the
grocery store window, and first saw defend-
ant beating Mildred on the head with the butt
of a revolver until it broke. He then ob-
Served him get a knife from the counter and
stab her repeatedly while she lay prostrate on
the floor. When the point of the knife bent,
defendant obtained another from the counter
and continued the stabbing.

The only witness who testified in defend-
ant’s behalf was the sister of Mildred. She
knew nothing with respect to any difficulties
between defendant and Mildred. She stated
that defendant did not want her husband to
come around his house. Other facts relating
to the issues raised will be found in the Opie
ion.

22 §.W.(2d)—50

(1) I. Defendant charges the trial court
erred in refusing to grant him a continuance.
The cause came on for trial on February 20,
1928, at 10 a.m. Defendant orally asked for
a continuance on the ground thot his attor-
neys had not had sufficient time to prepare
his defense properly. On the suggestion of
the court that an affidavit for a continuance
be prepared, the attorneys were given until
2 o'clock that afternoon to do so. The afi-
davit, sworn to by said attorneys and filed,
deposes that said attor neys were appointed by
the court on October 12 , 1927, to represent de
fendant; that on November 11, 1927, the at-
torneys moved the court to have defendant
examined to determine his sanity; that de-
fendant was committed on December 24, 1927,
to the St. Louis sanitarium for examination,
and that said examination was not completed
until approximately one week before Febru-
ary 20,1928; that defendant is without funds
to havg a further examination made; that
he is incoherent in his speech, and appar-
ently cannot give his attorneys any assistance
in the conduct of the trial; that, from de-
fendant’s speech and actions, the attorners
are of the opinion that he is insane and un-
able to aid counsel in his defense; that they
have not been furnished funds with which to
have an éxamination made; that they have
not had suflicient time to prepare the defense

properly so that defendant may have a fair ~

trial; and that the report from the city sani-
tarium shows, or purports toe show, that the
defendant is now and was at all times here-
tofore sane.

[2,3] The siistention or refusal of an ap-
plication by a defendant is lergely within the
discretion of the trial court, and, unless the
record shows an abuse of such discretion, this

court will not interfere. State vy. Garrison’

(Mo. Sup.) 285 S. W. 83; State v. Williams
(Mo. Sup.) 263 S. W. 198. The gist of the ap-
plication was that defendant’s attorneys had
‘not sufficient time to prepare for trial, be-
cause said attorneys believed that he was in-
sane and could not be of aid to them in ‘the
conduct of the trial, and that they coyld not
prepare for trial because defendant, or pos-
Sibly the state, had not furnished them with
funds with which to have further examina-
tions made as to defendant's sanity. It is
evident, however, from the affidavit that the
state dnvestigated his sanity through fair
and impartial experts in charge of the city
sanitarium before defendant was put upon
trial. In other words, the state did all it
ought to do. The affidavit does not show, or
attempt to-show, that defendant or his at-
torneys could have obtained funds for a fur-
ther examination. In view of the facts stated
in the affidavit, we do not think the court
abused its discretion.

II. It seems that the trial court, when de
termining defendant’s motion for a continu-
ance, mentioned a report of a Dr. Lee of the

SOR Tero rere

eae Ned

ire

uspect

€ murder.

his hands folded

the first day of

sequestered for

of nine women

Judge Evelyn

Elissa testified

€pfather, Jake
of Searching the
the girl before

€arance to DOs

ter, Emily, now

the two girls
the other’s

ter Elissa wore
red had been a

Terres

to Emily, she

expected to

Martin Link
Lab tests led to Charges
last three weeks, will focus on the
State's effort to Connect Link to the
murder through DNA evidence.
Prosecutors plan to bring in expert

witnesses next week,

Link already js Serving prison
terms totaling 216 years for other
crimes. In explaining the decision
to seek the death penalty in Elissa’s
See LINK, Page 2

ISsword |

By Carolyn Tutt
Of the Post-Dispatch Staff

Robert A. Pony’ Murray js
scheduled to be executed early
Wednesday for binding, Zagging and
killing €xecution-style two Laclede
Cab drivers 10 years ago in a St.
Louis apartment.

Murray, 32, has €xhausted his ap-
peals. His attorney, Richard Sindel,
Said none would be filed today.

he courts have rejected a claim
by Murray’s brother, William K.

in the double killing. William Murray
made the claim after he got a sen-
tence of life without parole in the
case,

The Murrays Were convicted of
killing Jeffery Jackson and Craig
Stewart in 1985.

Tony Murray wil] be the third man
executed in Missouri this year,

The U.S. Supreme Court refused
in June to hear Murray’s case. Sindel
said Murray’s last hope was for Goy.
Mel Carnahan to grant clemency.
Chris Sifford, spokesman for: Carng-
han, said the 80vernor ‘still was re-
viewing the case.

“If Tony’s brother would have
come forward earlier, that would
have been it,” Sindel said. “Unfortu-
nately, Tony is going to have to an-
SWer for it,”’

The Eastern Missouri Coalition to
Abolish the Death Penalty will pro-
test Murray’s execution tonight in
front of the St. Louis Municipal
Courts building, then travel ‘by cara-
van to the Potosj Correctional Cen-
ter, where Murray is scheduled to be
put to death by lethal. injection at
2:01 a.m.

“Anybody who chooses to kill
should pay with their life,”’ Jackson
Said. “My son didn’t deserve what he
got. He was an honest boy getting
ready to go to work,”’ oe

Pea

. <

¢ r < __
661 4 ATAL AVASHNHL TWNOILWN S21 YYOA MAN AHL

Missouri Executes Man for a Double K illing

POTOSI, Mo., July 26 (AP) — Rob-
ert Murray, 32, was put to death by
injection today for murdering two
men whom his brother had taken
responsibility for killing.

Mr. Murray was convicted of
shooting the men, both St. Louis cab:
drivers, in a 1985 robbery. He insist-
ed all along that his brother, William
Murray, was the killer.

William Murray did not say he)
was the killer until 1991, after he had.

been sentenced to life in prison for.
his role in the robbery .and four:
years after his brother was sen-
tenced to die,

The brothers met for the last time
hours before the execution.

As Mr. Murray lay on a gurney in
the execution chamber, his - final
word was ‘‘Peace.”...

Gov. Mel Carnahan’ ‘rejected Mr.
Murray’s request for a stay. Mr.

Murray had exhausted his court ap- '

peals.

After witnessing the execution,
John Mahone, a half brother of one of
the victims, Jeffery Jackson, said he

was relieved. ‘‘Justice was served,”
he said.

Mr. Jackson, 27, and Craig Stew-
art, 26, were killed on Dec. 6, 1985, in
Mr. Jackson’s apartment in St. Lou-
is. They were shot in the back at
close range.

According to trial testimony, the
“victims and two women were in the.
apartment when William Murray ar-
‘rived and announced a holdup. Rob-
ert. Murray, ‘and another man then
entered. Robert Murray held the pis-
tol while his brother ransacked the
apartment and robbed the four peo-
ple, the women testified.

William Murray then raped one of
the women, the authorities said,
_while Mr. Stewart and Mr. Jackson
* were bound and gagged.

One, woman | escaped by jumping _ ‘

etty

ror a second-story window, She tes-

tified that she heard shots as she ran
down the street to get help,

The second woman. fled down the
‘stairs, She testified that she glanced
in the apartment and saw Robert
Murray shoot Mr. Stewart.

y-aige
a

Potosi, Mo.

Killer executed: Robert Mur-
ray’s final word was “‘Peace,’’ be-
fore he was put to® death early

Wednesday by injection fora rob- i
bery in which two men were killed”
by being shot in the back. Murray, _.
32, had exhausted his court ap-
peals, and Gov. Mel Carnahan re-
jected his request for a stay of the

execution. Death penalty opponents «
had argued that the punishment was —

too harsh because Murray’ s brother,
William, told authorities in 1991 -
after he was sentenced to life in |
prison that he was the triggerman.

FJ =~ 2I-75 FroMwine pePoRTS |.

NATION DATELINES

‘Missouri ‘executes “\“ My
man who killed two q

Potosi, ‘Mo. A man convicted of S

killing two St. Louis cab drivers during a

“holdup in an apartment was executed by

injection early Wednesday. SE ag
As he lay on a gurney in the execu- ~

tion. chamber, Robert Murray’s final =

rd was “‘Peace.”
bi Gov. Mel Carnahan rejected Mur- t

ray’s request for a stay. Murray, 32, had x

xhausted his court appeals. \
: Murray was convicted of killing Jef- Vv

fery Jackson, 27, and Craig Stewart, 26,
on Dec. 6, 1985. The victims were bound
and gagged, then shot in the back at
close range in Jackson’s apartment.

Murray executed by lethal injection

POTOSI, Mo. (AP) — A
t’s confession came too late
pa “Tony” Murray, who was
executed by: lethal injection. early
today:for killing twomen. -
Murray, 32, was pronounced dead
at 12:07°a.m. at the Potosi Cortec-
tional Center, four minutes after the
first 1éthal dose was administered.
Murray ‘has admitted “he was -at

the apartment where two St. Louis»

cabdrivers, wete bound, gagged, ter-
rorized : and eventually shot to death
in 1985. But he contended to the
end that it was his brother, William
Murray, who pulled the trigger.
ee Murray: admitted he was

Jas

the trigger man, but not until 1991,
after he was sentenced to life in
prison and four years after Tony
Murray was sentenced to die.

The two brothers met for the final
time hours before the execution.

“T told him I’m just holding on,”
Tony Murray told the St. Louis
Post-Dispatch. “He told me he
couldn’t take it that I was going
down for something he did.”

‘Gov. Mel Carnahan declined to
intervene on behalf of Murray, who
had exhausted all of his court ap-

“I find nothing to justify setting
aside the result of the verdict of the

~ Wednesday, July 26, 1995

pers

Vol. 65, No. 175

St. Francois County, Mo.

Oawake and _ alert,”

jury and the subsequent judicial
proceedings,” Carnahan said in a
statement issued about a half an
hour before the execution.

Murray, wearing a goatee,
remained motionless on the gurney,
his eyes closed, as the execution
began. He had already uttered his
final word, “Peace.”

Murray’s head twitched briefly
when the second of three lethal
doses was administered, and his
breathing became labored. A few
seconds later, the breathing stopped.

Murray spent his final hours
quietly. He requested no special
meal, ordering a hamburger. and
fries off the regular prison menu.

Later, at about 7:20 p.m., he
received a sedative but remained
awake until shortly after the first of
the drugs was administered at 12:03

:; aM.

“He was somber,” ‘but the was

Department spokesman Tim Kniest
said. “He knew what was occur-
ring.” ‘

After witnessing the execution,
John Mahone, half brother of Jef-
fery Jackson, one of the victims,
said he was relieved.

“Justice was served,” Mahone
said.

Murray was sentenced to death
for killing Jackson, 27, and Craig
Stewart, 26. The men were shot
about 3 a.m. on Dec. 6, 1985, at
Jackson’s apartment in south St.

Corrections. .

Louis.

According to testimony at Mur-
ray’s trial, the two victims and two
women were partying at Jackson’s
apartment when William Murray
went to the apartment and an-
nounced a holdup. Tony Murray and
another man then entered.

Tony Murray held the pistol
while his brother ransacked the
apartment and stole money from the
victims and the women, the women
testified.

William Murray then allegedly
raped one of the women while
Stewart. and Jackson were bound
and gagged.

One of the women escaped by
jumping from a second-story win-
dow. She testified that she heard
gunshots as she ran down the stree!
to get help. The second woman fled
down the stairs.

She ‘testified that’ she glanced ir
the apartment to see Tony Murra)
shoot Stewart in the back.

Jackson’s mother, Emma Jackson
of St. Louis, told the Post-Dispatc!
that she was waiting by the radio fo:
word that the state had executed he:
son’s killer.

“It’s the best day of my life anc
my son will be in heaven clappin;
for joy and crying,” she said. “My
son had pleaded for his life, but yo
see what that got him. He’s been 1
his grave for 10 years while Ton:
and the other killers have been al
lowed to live.”

Celeste Darris, Stewart's mother
of St. Louis County, said both broth-
ers should be executed for her son's
murder.

“T feel the guy is getting what is
coming to him,” Darris said.

“They had no reason to sit and kill
him the way they did. It’s not going to
bring my son back home to me, but if

See KILLER, Page 2

Killer

From page one

they're going to execute Tony Mur-
ray, they should do it to Bill too.’’
Several inmates and many of Mur-

- .ay’s family members filed affidavits
~. with the court saying it was William

Murray, not Tony Murray, who shot
the men. William Murray waited until
1991, about four years after his sen-
tencing to life in prison, to tell the
court that he had pulled the trigger.
He said he was angry that the two
men had robbed him earlier of drugs
and money.

One juror, Carl E. Johnson of St.
Louis, told an appeals court here that
if the jury had known that the brother
had fired the shots, the jury would
not have sentenced Tony Murray to’
die.

The testimony Johnson and. the
other 11 jurors heard ‘was that ‘the’
two victims and two women were at
Jackson’s apartment in south St. Lou-
is at 3 a.m. Dec. 6, 1985,. smoking
marijuana, snorting cocaine and
drinking while they watched
television.

Just after midnight, William Mur-
ray went to the apartment, pulled a
pistol, ordered the four to the floor
and announced a holdup. That’s when
Tony Murray and another man, later
acquitted, entered the apartment,
the two women testified.

Tony Murray held the pistol while
his brother ransacked the apartment,
the women said. William Murray then
took the women’s purses and men’s
wallets and demanded more money.
The three decided to wait three
hours for another man to arrive, so
they could rob him.

William Murray then allegedly
raped one of the women in the kitch-
en, while Stewart-and Jackson were
tied up and gagged. William Murray
took Jackson into the kitchen, beat
him and stabbed the floor beside him.

One of the women escaped by
jumping from a second-story window.
She testified that she heard gunshots
as she .ran down the street to get
help. an

While the men were distracted by
her escape, the second woman fled
down the stairs.

She testified that she glanced in
the apartment to see Tony Murray
shoot Stewart in the back.

» TUESDAY, JULY 25, 1998

SF LOUIS Sos Dispet ce

S661 ‘22 Aine ‘Aepsiny | eusnoe-mainay seBea,q set/y9

Convicted killer put to death

Associated Press

POTOSI, Mo. — Robert
Murray’s final word was “Peace,”
before he was put to death early
Wednesday by injection for a rob-
bery in which two men died after
being shot in the back.

Murray, 32, had exhausted his
court appeals, and Gov. Mel Car-
nahan rejected his request for a
stay of the execution.

Death penalty opponents had
argued that the punishment was
too harsh because Murray’s
brother, William, told authorities
in 1991 after he was sentenced to
life in prison that he was the

triggerman. Another man was :

Robert Murray shoot one victim.
Jackson, 27, and Craig Stew-

art, 26, were slain Dec. 6, 1985, in
Jackson’s apartment, where they
were partying with two women.

acquitted.

However, a witness to the 1985

robbery-killings said she

Thur

—H.% 1- FF

saw

THE WASHINGTON Post

Killer of Cab Drivers
Executed in Missouri.

Reuter

POTOSI, Mo.,:July 26—A man-

convicted with his brother of the exe- |.
cution-style murders of two cab driv- ;}:

ers a decade ago was put to death to-
day by lethal injection.
Robert Murray, 32, said “Peace”

before he was injected-with a lethal |

dose of chemicals, prison officials said.

Murray and his brother, William,.
were convicted of killing St. Louis cab
drivers Jeffery Jackson and Craig.
Stewart. William Murray was given a’
life term; he later claimed’ he. shot

both men. The brothers burst’ into an.

—E"

apartment where Jackson and Stewart.
were using drugs with two women. '

Both men were shot to death, and one

_ of the women was raped.

MISSOURI —

ST. LOUIS — Robert Murray,
31, is scheduled to be executed by
lethal injection early Wednesday

for the ’85 killings of two cab driv-
ers. His brother, William Murray,

who authorities said pulled the
trigger, is serving life in prison.

‘6A « TUESDAY, JULY 25, 1995 » USA TODAY

ee eal

Wes PY Og fey
LA times
Missouri Executes Robber

{
‘POTOSI, Mo.—A man who par-
ticipated in a robbery that resulted
in’ the murder of two St. Louis
cabdrivers was put to death by
injection early Wednesday. As
Robert Murray, 32, lay on a gurney
in|the execution chamber, his final
word was “Peace.”
— Associated Press

“+

—f-———

ST. LOUIS (AP) — With all of
his appeals possibilities exhausted,

obert “Tony” Murray from becom-
ng the third man to be executed in

issouri this year is clemency from

Gov. Mel Carnahan. :

Murray, convicted of first-degree.
urder in the 1985 killings ‘of two

t. Louis cabdrivers, will die by ©
* lethal: injection” early. “Wednesday «
morning unless. (Camahan « ‘inter-"
yenes.

jo aya

mee OE)

i tae

EWR ERECT EER EN
i PEON

Ee,
eae

a wo

the only thing that could keep |

as “biit has made no A

| Murray, 31; is scheduled to be ex.

ecuted at 12:01, a.m. Wednesday at

the Potosi Correctional Center.
All. court appeals have been ex-

hausted, attorney Richard Sindel

Said Monday.

7 “Basically | ‘all we - have left is

pending with the governor for a pos-°
sible. Stay of execution,” ’ Sindel said.

“Carahan- is t -Teviewing the case.

Eigtin.” bat oes

cision, -spokes-
‘man’ Chris Sifford said Monday.

‘Murray: was sentenced to death:

for milling eee als and

Craig Stewart, 26. The victims had
been bound and gagged, then shot in
the back at close range, authorities

said.

| The men were shot about 3 a.m.

‘on: Dec. 6, 1985, at Jackson’s apart-
ment i in south St. Louis.

But death. ‘penalty opponents say

the! punishment i is too harsh bécause
Murray, didn’t pull the trigger. Two
~ ‘other men were charged i in the kill-
ings. Murray’ s brother, William told
authorities several years: after he

Murray scheduled to die Wednesday

was sentenced to life in prison that
he was really the triggerman. The
other man was acquitted.

“In this case the specific issue is
the arbitrariness of the sentence,”
said Margaret Phillips of the Eastern
Missouri Coalition to Abolish the
Death Penalty. “He was apparently
just tagging along, and he got
death.”

The. coalition planned a

candlelight vigil outside the correc-

tions center prior to the scheduled

‘execution.

Saily
ournal ,

Vol. 65, No. 174

St. Francols County, Mo.

Sy ay See OE

Mo. killer executed after last word: ‘Peace’

POTOSI, Mo. (AP) - Robert
Murray’s final word was ‘‘Peace,”’
before he was put to death early
yesterday by injection for a rob-
bery in which two men were
killed by being shot in the back.

Murray, 32, had exhausted his
court appeals, and Gov. Mel

Carnahan rejected his request for
a stay of the execution.

Death penalty opponents had
argued that the punishment was
too harsh because Murray’s
brother, William,’ told authorities
in 1991 after he was sentenced
to life in prison that he was the

triggerman. Another man was ac-
quitted.

However, a witness to
1985 robbery-killings said
saw Robert Murray shoot ,
victim.

The brothers met for the last
time hours before the execution.

the
she
one

—

ARIZONA DAILY STAR Tucson, Thursday, July 27, 1995.

Missouri Executes Man for a Double Killing

POTOSI, Mo., July 26 (AP) — Rob-
ert Murray, 32, was put to death by
injection today for murdering two
men whom his brother had taken
responsibility for killing.

Mr. Murray was convicted: of
shooting the men, both St. Louis cab
drivers, in a 1985 robbery. He insist-
ed all along that his brother, William
Murray, was the killer.

William Murray did not say. he
was the killer until 1991, after he had
been sentenced to life in prison for
his role in the robbery and four
years after his brother was sen-
tenced to die.

The brothers met for the last time
hours before the execution.

As Mr. Murray lay on a gurney in
the execution chamber, his final
word was ‘‘Peace.”

Gov. Mel Carnahan rejected Mr.
Murray’s request for a stay. Mr.
Murray had exhausted his court ap-
peals.

After witnessing the execution,
John Mahone, a half brother of one of _
the victims, Jeffery Jackson, said he

Doni) (

was relieved. ‘‘Justice-was served,”
he said. RAK
Mr. Jackson, 27, and ‘Craig Stew-
art, 26, were killed on Dec. 6, 1985, in
Mr. Jackson’s apartment in St. Lou-
is. They..were: shot in the back a
close range, r
According to trial testimony, the
victims and two women. were in the.
apartment when William Murray ar-

rived and announced a holdup. Rob- tiny.)

ert Murray and,another man. then .

NATION DATELINES
Wed T-26-IS
Missouri executes
i man who killed two

killing two St. Louis cab drivers during a
holdup in an apartment was executed by
injection early Wednesday.

As he lay on a gurney. in the execu-
tion chamber, Robert Murray’s final
word was “Peace.”

Gov. Mel Carnahan rejected Mur-

entered. Robert Murray held the pis- CH sans M 32. had
i : 5 : y’s request for a stay. Murray, 32, ha
tol while his brother ransacked ther «.s90% exhausted his court appeals.
apartment and robbed the four peo- Nije

ple, the women testified.

The second woman fled down the
stairs. She testified that she glanced
in the apartment and saw Robert
Murray shoot Mr. Stewart.

TAR -

Weenie haa

EXECUTION:
32, by injection for
cab drivers during
ing a life sentence
the triggerman.

the 1985 gunshot

(47 -

Missouri executed Robe
pct slayings of two St. Louis
a robbery. His brother, William, is serv-
for the crime. A witness
He said it was William.

Murray was convicted of killing Jef-
fery Jackson, 27, and Craig Stewart, 26,

William Murray then raped one of 1: on Dec. 6, 1985. The victims were bound
the women, the authorities said, yA | and gagged, then shot in the back at
while Mr. Stewart and/Mr. Jackson” ,,,.,. close range in Jackson’s apartment.”
were bound and gagged. ° vet

One woman escaped by jumping ete Sor . . :

" from a second-story window. She tes- ...
tified that she heard shots as she ran.
down the street to get help. | 1 sie

et “Tony” Murray,

said Robert was

Potosi, Mo. A man convicted of

Missouri Executes Man for a Double Killing

POTOSI, Mo., July 26 (AP) — Rob-
ert Murray, 32, was put to death by
injection today for murdering two
men whom his brother had taken
responsibility for killing.

Mr. Murray was convicted of
shooting the men, both St. Louis cab
drivers, in a 1985 robbery. He insist-
ed all along that his brother, William
Murray, was the killer.

William Murray did not say he
was the killer unti] 1991, after he had
been sentenced to life in prison for
his role in the robbery and four
years after his brother was sen-
tenced to die.

The brothers met for the last time
hours before the execution.

As Mr. Murray lay ona gurney in
the execution chamber, his fina]
word was ‘‘Peace.”’

Gov. Mel Carnahan rejected Mr.
Murray’s request for a Stay. Mr.
Murray had exhausted his court ap-
peals.

After Witnessing the execution,
John Mahone, a half brother of one of
the victims, Jeffery Jackson, said he

was relieved. ‘‘Justice was served,”
he said.

Mr. Jackson, 27, and Craig Stew-
art, 26, were killed on Dec. 6, 1985, in
Mr. Jackson’s apartment in St. Lou-
is. They were shot in the back at
close range.

According to trial testimony, the
victims and two women were in the
apartment when William Murray ar-
rived and announced a holdup. Rob-
ert Murray and another man then
entered. Robert Murray held the pis-
tol while his brother ransacked the
apartment and robbed the four peo-
ple, the women testified.

William Murray then raped one of
the women, the authorities said,
while Mr. Stewart and Mr. Jackson
were bound and gagged.

One woman escaped by jumping
froma second-story window. She tes-
tified that she heard shots as she ran
down the street to get help.

The second woman fled down the
Stairs. She testified that she glanced
in the apartment and saw Robert
Murray shoot Mr. Stewart.

SEP 19 '95 17:54 FROM NeACF LDF

URGENT ACTION APPEAL

EXTRA 84/95 ~ Death Penalty ~~ 20 July 1995
USA (Missouri) Tony Murray

Tony Murray, black, is scheduled to be executed in Missouri on 26 July 1995. He was sentenced to death in 1987 for the
murders of two men during a robbery.

Murray was reportedly one of three people who took part in the crime, one of these was acquitted, and the other received a
life sentence.

m wen) commmay: ‘ + ae a A © we eer fee + ome,

Amnesty international opposes the death penalty in all cases as a violation of the right to life and the right not to be
subjected to cruel and degrading punishment as proclaimed in Article 5 of the Universal Declaration of Human Rights.

BACKGROUND INFORMATION

As of 30 April 1995 there were 92 prisoners under sentence of death in Missouri. The most recent execution in Missouri was
Larry Griffin, on 21 June 1995. The method of execution is lethal injection. In Missouri the Governor has final clemency
authority; the Board of Pardons and Parole submits recommendations to the Governor.

RECOMMENDED ACTION; Please send telegrams/faxes/express and airmail letters:
To Govemor Carnahan
- urging Governor Carnahan to grant clemency to Tony Murray;

- urging that they recommend that Governor Carnahn grant clemency to Tony Murray;

Appeals to . (SALUTATION)
The Honorable Mel Carnahan (Dear Governor)
Governor of Missouri

Office of the Governor

PO Box 720

Jefferson City, MO 65102 {Tel: 1 (314) 751 3222)
Se ee ee vee meus ee toy tee, a ae ARE STATS TAGS) is. 8g: eee
(Telegrams: Governor Camahan, Jefferson City, MO 65102]

Missouri Board of Pardons and Parole (Dear Chairman and Board Members)
Department of Corrections 7

117 Commerce drive

Jefferson City, MO 65109 (Fax:1 (314) 751 4099]

[Telegrams: Missouri Pardon Board, Jefferson City MO]

COPIES OF YOUR APPEALS TO:

The Letters Editor

Kansas City Star

1729 Grand Avenue

Kansas City, MO 64108 [Fax: 1 (816) 234 4926}

PLEASE SEND APPEALS IMMEDIATELY.

kK TOTAL PAGE. @AP xe

Missouri Man Executed
AP 26 Jul 95 1:40 EDT V0509
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,

broadcast or otherwise distributed without the prior written authority
of the Associated Press.

POTOSI, Mo. (AP) -- A man convicted of killing two St. Louis cab
drivers during a holdup in an apartment was executed by injection early
Wednesday.

As he lay on a gurney in the execution chamber, Robert Murray’s
final word was "Peace,”

Gov. Mel Carnahan rejected Murray’s request for a stay. Murray, 32,
had exhausted his court appeals.

Murray was visited by family members in the hours before his death,
but they did not witness the execution. He had no special requests for
a last meal and ate a hamburger and french fries fromthe prison menu.

Death penalty opponents argued that the punishment was too harsh
because Murray didn’t pull the trigger. Murray's brother, William, told
authorities several years after he was sentenced to life in prison that
he was the triggerman. Another man was acquitted.

Emma Jackson, the mother of one victim, said Murray deserved to die.
“Anybody who chooses to kill should pay with their life,“ she told the
St. Louis Post-Dispatch. oe |

Murrey was convicted of killing Jeffery Jackson, 27, and Craig
Stewart, 26, on Dec. 6, 1985, The victims were bound and gagged, then
shot in the back at close range in Jackson’s apartment.

According to trial testimony, the two victims and two women were
partying at Jackson’s apartment when William Murray went to the
apartment and announced a holdup. Robert Murray and another man then
entered.

Robert Murray held the pistol while his brother ransacked the
apartment and robbed the four people,.the women testified.

William Murray then allegedly raped one of the women while Stewart
and Jackson were bound and gagged.

One of the women escaped by jumping from a second-story window, and
testified that she heard gunshots ag. she ran down the street to get .
help. The second woman fled down the stairs.

She testified that she glanced in the apartment and saw Robert
Murray shoot Stewart. . . |

Murray was the 32nd person executed this year, and the 289th since

the 1976 U.S. Supreme Court decision allowing states to resume capital
punishment.

MISSOURI) Tr OtCtCt«S amt,

er: Louis. neice USA TSeDay ¢
jotta! treet 10 be executed by | ane a
oe en qas [lt

ner, William Murray, | |
who authorities ‘sai ule ie A
trigger, is serving tite ti orbon: ip ( ae
asAarraata |

Convicted Killer Is Executed
AP 26 Jul 95 15:22 EDT V0764 :
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

POTOSI, Mo. (AP) -~ Robert Murray’s final word was “Peace,“ before
he was put to death early Wednesday by injection for a robbery in which
two men were killed by being shot in the back.

Murray, 32, had exhausted his court appeals, and Gov. Mel Carnahan
rejected his request for a stay of the execution.

Death penalty opponents had argued that the punishment was too harsh
because Murray’s brother, William, told authorities in 1991 after he
was sentenced to life in prison that he was the triggerman. Another man
was acquitted.

However, a witness to the 1985 robbery-killings said she saw Robert
Murray shoot one victim.

The brothers met for the last time hours before the execution.

The execution was witnessed by John Mahone, half-brother of victim
Jeffery Jackson. “Justice was served," he said.

Jackson, 27, and Craig Stewart, 26, were slain Dec. 6, 1985, in
Jackson’s apartment, where they had been partying with two women.

According to testimony, the Murray brothers and a third man entered
the apartment.

Robert Murray held a pistol, the women said.

Jackson and Stewart were bound and gagged, then shot in the back at
close range, but the women managed to escape. One of the two women said
she saw Robert Murray shoot Stewart. One of the women also was
allegedly raped.

Murray was the 32nd person executed this year, and the 290th since
the 1976 U.S. Supreme Court decision allowing states to resume capital
punishment.

@ MISSOURI EXECUTION: POTOSI, Mo. —
Robert Murray’s final word was “Peace,” before he
was put to death early Wednesday by injection for a
robbery in which two men were killed by being shot in
the back. : .

Murray, 32, had exhausted‘his court appeals, and
Gov. Mel Carnahan rejected his request for a stay of the
execution.

EACLE Bethan Az—

@ ‘PEACE’ AT LAST: Robert Murray’s final word was “Peace,” be-
fore he was put to death by injection for a robbery in which two men
were killed by being shot in the back. Murray, 32, had exhausted his

court appeals, and Missouri Gov. Mel Carnahan rejected his request
for a stay of the execution. : :

CesT! TDT7 KS

EXECUTION: Missouri executed Robert “Tony” Murray,
32, by injection for the 1985 gunshot slayings of two St. Louis

- cab drivers during a robbery. His brother, William, is serv-
ing a life sentence for the crime. A witness said Robert was
the triggerman. He said it was William.

sq Tavay

MURRAY, James, black, hanged Clayton, Mo., May 11, 1895, and hiss
brother, MURRAY, Edward, hanged at Hermon, Missouri, May 11, 1895.

The following is extracted from the St. Louis POST DISPATCH, July
27, 1894, in their article concerning the hanging of Harrison
Duncan at Clayton on that date: "MURRAY AFFECTED BY THE HANGING,
James Murray, one of the two Murray brothers, colored, charged

with the murder of young Fitzwilliams, seemed to te greatly
affected by the execution, James Murray, who is confined in the
Clayton jail, has already been convicted and is under sentence to be
hanged, The execution was an object lesson which made him rea-

lize more keenly his approaching fate. “hen he was seen in his

cell he was restless, irritable and nervous, but he refused absolutely
to say anything about his case or to talk about the execution of
Duncan,"

A ROEWT—

EXECUTION VIGIL ALERT

WHO: TONY MURRAY

WHEN: Wednesday, July 26, 1995, 12:01 a.m.

IMPORTANT ASPECT: ARBITRARY APPLICATION OF DEATH PENALTY: Murray was
one of three who took part in the crime. One was acquitted; one, who
pulled the trigger, got life; and Murray, who had never been in
serious trouble before and by all accounts did not pull the trigger,
got death. :

* —»> WHAT YOU CAN DO on or before Tuesday, July 25:
1 Call or write Governor Mel Carnahan to ask him to grant clemency,

oer at-least a stay: 3147751-3222,>fax 314/751-1495; State Capital,
Jefferson City, MO 65101.

2. If possible, join a candlelight vigil Tuesday, 7/25, outside the
prison at Potosi from 11:00-12:01 in protest: at the front gate of the -
Potosi Correctional Facility, Highway 0, just east of Highway 8, south
off Highway 21. THESE PLANS WILL BE CANCELLED IF THERE IS AN :
UNCHALLENGED STAY OF EXECUTION OR A COMMUTATION. For information call.
EMCADP or 314-725-7527 or 314-474-5322

EMCADP, 1408 S. Tenth St., St. Louis, MO 63104, 314-241-8062.

[EMCADP = Eastern Missouri Coalition Against The Death Penalty;
was posted by Margrete Phillips]

~ nd i Pera mm eyil eehnt ec BET os .
1% rea oe Of SET SOS ae u
és . ae ate A TR a SS oe aa ee Bren oa
wy Fie Peat pid aes Sih SATS RR eh
, o + é
z ake ” .
tg: .

STATE OF MISSOURI. 559

March 6, 1839, David Sterigere was judge; March 7, a demur-
rer was filed to both indictments for peddling clocks without
license, and Thomas Kinsey gave bail in the sum of $300, for
his appearance at the next term of tlhe court. On March 8 Cox
and Page gave bail jointly in the sum of $250, and individually
in the sum of $800, to appear at the next term. July 1, 1839,
the demurrer in each case was overruled, and on trial Charles
Page was found guilty and fined $225, and the fine ordered to
be paid into the treasury of Crawford County, to the use and
benefit of the cause of education. Thomas Cox was found not
guilty. Hughes and Kinsey were each found not guilty of sell-
ing corrupt beef.

July 6, 1840, William Evans, who landed in Baltimore in
1829, and had resided most of the time since in Crawford County,
declared his intention to become a citizen of the United States.

November 11, 1841, John Taylor was indicted for murder,
and his case continued to the next term of court, in March, 1842.
At this term Charles H. Allen was judge, and Taylor’s trial post-
poned to the next term. John Inman and Mary Farris were
indicted for adultery, the case continued, and an alias awarded

against Inman to Pulaski County, and against Mary to Crawford
County. Atthe July term William Evans was admitted to full
citizenship, and on the 18th of the month John Taylor was found
guilty of murder in the first degree, and on the 14th sentenced
to be hanged August 19, 1842. On the 16th of November,

842, William Tansey was indicted for killing a mule, and an
dlias capias issued directed to the sheriff of Sh darion County,

against the said William Tansey, returnable to the next term of —

court. At the April term, 1843, numerous indictments were found
against parties for dealing as dramshop keepers without license,
and at the October term, 1843, a nolle prosequi was entered in the
case of John Inman and Mary Farris. At the April term, 1844,
William Tansey gave bail for his appearance at the next term of
the court, and Conrad Myers was tried for the murder of Samuel
B. Wingo, sheriff of Shannon County, and found guilty of murder
in the first degree. Myers was sentenced to be hanged on May
24, 1844, between 11 and 38. April 18, 1844, John Taylor, who
had escaped from custody between the day of his sentence and

corer osepempeareer
¥ : as par Res tae oa

eet arcsec ie ao = ae = 2 oe . :
_. cee. ae rs ect : at) é / yn
# MYERS, Conrad, hanged, Crawford Ce., Me. oy
; >

5/24/1844 (ce. ef v. from Shannen Ceunty) Lao

HISTOR

FRAVKLIN, JRRFEROON, WASHINGTON, CRAWFORD & CascONADE a
3 COUNTIES, MISSOURL

‘

From tie Earirst Time To THE PRESEN
BUSINESS AND. PROFESSIONAL SKETCHES AND NuMEROUS FAMILY -
RECORDS; BusiDEs A. VALUABLE | FUNDOF Norrs, 15285

.~, ORIGINAL OBSERVATIONS, Erc., ETC. ey

i: TOGETHER WITH SUNDRY PERS

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980 767 FEDERAL SUPPLEMENT

was inadmissible or that a proper founda-
tion or qualification could not have been
made.

This Court does not find that actual prej-
udice resulted from failing to raise this
claim during post-conviction proceedings.

[5] In petitioner’s second amended peti-
tion, two claims are labeled ground 24.
With respect to the first one, petitioner
alleges that he was denied a fair trial be-
cause of the state’s questioning of witness
Hyman as to the emotional state of Gladys
Nutall. Petitioner asserts that this testi-
mony called for speculation on the part of
Hyman and served to bolster the testimony
of Gladys Nutall.

The trial transcript reveals the following
discourse between Hyman and the prosecu-
tor:

Q. Okay. ~What did you observe
when you got there?

A. We had—as I recall, there were
three people to be considered. There
were two with gun shot wounds lying on
the floor, tied up; and one had his mouth
gagged. One had his face and a lot of
clothing around it. The one my partner
worked on, I believe, actually had a gag
tied around. And there was a woman
who was fairly upset back in one of the
rooms, not the same room as the two gun
shot victims.

Q. All right. Do you recall whether
or not that woman was—or was she ever
identified to you?

A. I think that we were told later, but
I don’t recall off hand, and I don’t think I
can identify her.

Q. Would you say she was upset?
How would you characterize, having had
medical training, having had—how would
you characterize her?

MS. GILBERT: Objection, Your Hon-
or, calls for speculation and that it’s irrel-
evant.

THE COURT: Sustained to the use of
the word “characterize.”

Q. (Mr. Worzycki) What did you ob-
serve about her that night?

A. It’s hard to actually define a term
like distressed but, you know, if—when

something very frightening happens, you
have a person is frightened, and I don’t
know that I could say panicky. It’s been
quite some time, but it seems to me just
moderate state of distress. That’s not a
very specific term.

Q. At the time that you saw this lady,
was she crying?

A. I don’t recall.

Q. All right. Was she able to talk
coherently to you? :

A. I think so.

Q. Okay. Did she appear to you to
be extremely nervous?

MS. GILBERT: Objection, Your Hon-
or. He is leading his witness.

THE COURT: Sustained.

Q. (Mr. Worzycki) What else can you
tell us about her condition?

A. As I recall, I don’t believe she had
any real medical problems, any severe
cuts or bruises or anything, and she did
not wish to be treated.

Hyman merely was describing the cir-
cumstances at the residence when he ar-
rived. The petitioner has not demonstrated
Hyman’s testimony bolstered the testimony
of Nutall or prejudiced the defendant in
any other way. Thus, post-conviction coun-
sel’s failure to raise this claim did not re-
sult in actual prejudice to the petitioner.

As his second ground 24, petitioner as-
serts that the state misstated the law in the
penalty phase of voir dire by instructing
the jury that their duty was to weigh the
mitigating and aggravating circumstances
of the case and balance the two.

[6] As stated above, this Court finds
that the jury was properly instructed on
the penalty phase of the case. Moreover,
control of the voir dire is in the sound
discretion of the trial court. See State v.
Murray, 744 S.W.2d at 770. Thus, peti-
tioner has not demonstrated actual preju-
dice by failing to raise this claim in the
state courts.

[7] With respect to ground 25, petition-
er states that the trial court erred in failing
to strike for cause juror number 78, Mary
Donnelly, who stated that after finding the
defendant guilty of cool, deliberate, and

978

sequently filed amendments to the original
petition, as well as a second amended peti-
tion.

[1] On January 9, 1991, this Court en-

tered an order stating in part that ‘the
ineffectiveness of counsel in petitioner’s
post-conviction proceedings may not consti-
tute ‘cause’ to overcome a procedural bar.”
As pointed out to the Court by the parties,
this statement is in contrast with the pre-
vailing law in the Eighth Circuit, as stated
in Simmons v. Lockhart, 915 F.2d 372 (8th
Cir.1990). Simmons states that ineffective
assistance of post-conviction counsel can be
“cause” for purposes of lifting a procedur-
al bar. Jd. at 376. The Court is compelled
to follow this precedent and will vacate its
January 9, 1991, order only to the extent
that it states that ineffective assistance of
post-conviction counsel cannot constitute
cause to overcome a procedural bar. None-
theless, as discussed below, even if peti-
tioner could establish cause by demonstrat-
ing that his post-conviction counsel was
ineffective in failing to raise the claims in
petitioner’s allegations numbered 14, 16,
19, and 21-28, the Court finds that petition-
er cannot demonstrate actual prejudice by
this failure as required under Wainwright
v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977). Accordingly, the Court
still finds that petitioner’s grounds 14, 16,
19, and 21-28 are procedurally barred.

[2] In allegation 14, petitioner alleges
that the court erred in submitting Missouri
Approved Instruction Criminal 2d (“MAI-
CR2d”) 13.44 which impermissibly limited
the jurors’ consideration of mitigating evi-
dence contrary to Mills v. Maryland, 486
U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384
(1988). Furthermore, petitioner asserts
that the submission of MAI~CR2d 13.46 did
not cure this defect. See McKoy v. North
Carolina, 494 U.S. 488, 110 S.Ct. 1227,
1231, 108 L.Ed.2d 369 (1990).

The relevant instructions submitted to
the jury read as follows:
Instruction No. 11
As to Count I, if you decide that one or

more sufficient aggravating circum-
stances exist to warrant the imposition of

767 FEDERAL SUPPLEMENT

death, as submitted in Instruction No. 14,
you must then determine whether one or
more mitigating circumstances exist
which outweigh the aggravating circum-
stance or circumstances so found to ex-
ist. In deciding that question, you may
consider all of the evidence relating to
the murder of Jeffrey Jackson.

You may also consider:

1. Whether the defendant has no sig-
nificant history of prior criminal activity.

2. Whether the defendant was an ac-
complice in the murder of Jeffrey Jack-
son and whether his participation was
relatively minor.

3. Whether the defendant acted un-
der extreme duress or under substantial
domination of another person.

You may also consider any circum-
stances which you find from the evidence
in mitigation of punishment.

If you unanimously find that one or
more mitigating circumstances exist suf-
ficient to outweigh the aggravating cir-
cumstances found by you to exist, then,
on Count I you must return a verdict
fixing defendant’s punishment at impris-
onment for life by the Division of Correc-
tions without eligibility for probation or
parole.

Instruction No. 12

As to Count I, you are not compelled to
fix death as the punishment even if you
do not find the existence of one or more
mitigating circumstances sufficient to
outweigh all the aggravating circum-
stance or all the circumstances which
you find to exist. You must consider all
the circumstances in deciding whether to
assess and declare the punishment at
death. Whether that is to be your final
decision rests with you.

Mills requires that a juror not be precluded
from considering any mitigating evidence
in determining the appropriate sentence to
be imposed. 486 U.S. at 384, 108 S.Ct. at
1870.

The Court finds that the instructions sub-
mitted in this case are distinguishable from
those in Mills and McKoy and do not run
afoul of the constitutional principles set

MURRAY v. DELO 977
Cite as 767 F.Supp. 975 (E.D.Mo. 1991)

state has provided prisoner with full and
fair hearing on the claim. U.S.C.A. Const.
Amend. 4; 28 U.S.C.A. § 2254.

23. Criminal Law ¢665(4)

Excluding members of defendant’s
family at capital murder trial was not
abuse of discretion and did not render trial
fundamentally unfair, where family mem-
bers were endorsed as witnesses for penal-
ty phase of trial and testified at that phase.

24. Criminal Law <665(1)

Exclusion of witnesses in Missouri
courts is matter within sound discretion of
trial judge.

25. Criminal Law ¢=438(6)

Probative value of photographs of
murder victims outweighed prejudicial ef-
fect in murder prosecution; photographs
were relevant to issue of deliberation, re-
vealed extent of victims’ wounds and were
described by oral testimony.

26. Criminal Law ¢438(1)
Photographs generally are admissible
if relevant to material issue in case.

27. Witnesses ¢-318

Police officer’s testimony that witness
told him that her friend had been raped,
location of crime scene, and names and
description of two of the assailants, offered
to explain officer’s action in reporting to
scene of the crime, did not impermissibly
bolster witness’ testimony; officer did not
testify as to details of crime related to him
by witness.

28. Criminal Law <789(4, 13)

Jury instruction on “reasonable doubt”
given in capital murder prosecution, requir-
ing jury to be “firmly convinced” of defen-
dant’s guilt and defining reasonable doubt
as “doubt based upon reason and common
sense” was proper.

29. Homicide €=358(1)

State was properly permitted to make
opening statement during penalty phase of
capital murder trial, although state
presented no evidence at that stage; open-
ing statement during penalty phase merely
summarized for jury evidence chat it al-

ready heard and how that evidence related
to penalty phase.

30. Homicide <=308(5) :

Evidence concerning victims’ shooting
deaths was insufficient to warrant instruc-
tion on conventional second-degree murder
in capital murder prosecution.

31. Homicide €282

Trier of fact in capital murder case
must be allowed to consider lesser-included
offenses supported by the evidence.

Charles M. Shaw, Clayton, Mo., for peti-
tioner.

Jared R. Cone and Ronald L. Jurgeson,
Asst. Attys. Gen., Jefferson City, Mo., for
respondent.

ORDER

HUNGATE, District Judge.

This matter is before the Court after a
hearing on the merits of some of the claims
presented to this Court in petitioner’s sec-
ond amended petition for writ of habeas
corpus.

On December 12, 1986, petitioner was
convicted of two counts of murder in the
first degree in the 1985 deaths of Jeffrey
Jackson and Craig Stewart. The jury rec-
ommended the death penalty on both
counts, and petitioner was sentenced ac-
cordingly. On direct appeal, the Missouri
Supreme Court affirmed the convictions
and sentence. State v. Murray, 744
S.W.2d 762 (Mo. banc), cert. denied, 488
U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150
(1988). Thereafter, petitioner filed in state
court a motion to set aside or vacate judg-
ment and sentence pursuant to Mo.S.Ct.R.
29.15, which was denied after an evidentia-
ry hearing. The Supreme Court of Mis-
souri affirmed that ruling. Murray v.
State, 775 S.W.2d 89 (Mo. banc 1989), cert.
denied, — U.S. ——, 110 S.Ct. 1171, 107
L.Ed.2d 1073 (1990).

On March 1, 1990, petitioner filed in this
Court his original pro se petition for writ of
habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner’s appointed counsel sub-

MURRAY v. DELO 979
Cite as 767 F.Supp. 975 (E.D.Mo. 1991)

forth therein. Specifically, the jurors in

petitioner’s case were not submitted a ver-.

dict form requiring a designation of each
mitigating circumstance found unanimous-
ly by the jury. Cf Mills, 486 U.S. at 387,
108 S.Ct. at 1871-72; McKoy, 110 S.Ct. at
1230. Thus, petitioner cannot demonstrate
that post-conviction counsel’s failure to
raise this claim resulted in actual prejudice.

Petitioner’s allegation 16 states that the
trial court was without jurisdiction to con-
sider petitioner’s criminal case because the
indictment does not comply with Missouri’s
statutory language regarding capital mur-
der. Petitioner states that the language of
the indictment more closely resembled the
statutory language for murder first-de-
gree.

Petitioner was tried and convicted of
murder in the first-degree, not capital mur-
der. Thus, as admitted by petitioner, the
language of the indictment was sufficient
for this charge. Therefore, petitioner has
not demonstrated actual prejudice from
post-conviction counsel’s: failure to raise
this claim.

In allegation 19, petitioner alleges that
he received ineffective assistance of coun-
sel because trial counsel failed to object to
the state’s questioning of Officer Robert
Planthold about statements made to him by
Claudia Hennings.

This issue, framed as one of trial court
error, was presented to the Missouri Su-
preme Court on direct appeal. The Mis-
souri Supreme Court held that the testimo-
ny was relevant and admissible under Mis-
souri law. State v. Murray, 744 8.W.2d at
772-73. Thus, petitioner has failed to show
how counsel’s failure to raise this issue at
the post-conviction proceeding resulted in
actual prejudice.

[3] In allegation 21, petitioner states
that trial counsel was ineffective in failing
to take measures to prohibit evidence
which had not been furnished through dis-
covery. Specifically, petitioner asserts that
counsel failed to ensure that notes and
memoranda prepared by investigating offi-
cers that the state claimed had been de-
stroyed were not introduced into evidence.

Once again, the Court finds that petition-
er has not demonstrated actual prejudice
from his post-conviction counsel’s failure to
raise this claim. Petitioner has not alleged
that the notes were not destroyed or that
the notes contained any exculpatory infor-
mation that would have been beneficial to
the petitioner. Nor has petitioner demon-
strated any bad faith on the part of law
enforcement officers in destroying their
notes. See Sargent v. Armontrout, 841
F.2d 220, 224-25 (8th Cir.1988).

[4] As allegation 22, petitioner alleges
that defense counsel failed to object to the
testimony of the state’s witness, Claudia
Hennings, that the two victims of the homi-
cide were taken into a back room and “‘tor-
tured.” Petitioner states that this testimo-
ny calls for speculation and was inflamma-
tory and highly prejudicial.

The Court finds that this statement cer-
tainly was within the province of the wit-
ness. As stated by the Missouri Supreme
Court:

There is sufficient evidence in this case
for a jury to believe that both physical
and psychological torture was inflicted
upon the murder victims. Evidence that
Jackson and Stewart were bound and
gagged and then beaten before being
killed was unchallenged, as was evidence
that the defendant and his accomplices
stabbed knives into the floor directly be-
side the men. There is evidence that the
murder victims, as well as Hennings and
Nutall, were subjected to prolonged ter-
ror. .’..

State v. Murray, 744 S.W.2d at 776. - Ac-
cordingly, petitioner has not demonstrated
actual prejudice with respect to this claim.

In allegation 28, petitioner alleges that
trial counsel failed to object to the testimo-
ny of Christopher Jay Hyman, a paramedic
who responded to the scene of the murder.
According to petitioner, Hyman testified
about the nature of the wounds to the
victims without a proper evidentiary foun-
dation or qualification.

As noted by the respondent, petitioner
has not asserted that the evidence itself

BEAUTY AND THE TATTOOED TERRORIST. On vacation at the home -of her
grandmother in Joplin, Missouri, lovely Lisa Schuh was abducted on July 24, while
she walked her dog. A neighbor saw a man point a gun at the girl and force her into
his car. The alert witness took down the license number and a search was begun. Too
late, however, tattooed ex-con Charles H. Odum was captured. In the kidnaper’s car,
Captain Walt Fenner, foreground, found Lisa’s torn clothes, a bloodstained rock
and a gun. Later, the victim’s battered, naked body was located in a field; she’d been
arb Sag ateeant and raped. Physicians are working desperately to save the
girl’s life. :

arial“
(1)

ditty)

Widow in the Bed of Fire

[Continued from page 45]

his superior. Chief Inspector Lusby
promptly ordered the broadcast of an
alarm alerting the Baltimore police to
watch for Harvey’s converted hearse and
for a 1958 Dodge with Ohio license plates.
If, at this moment, the police did not
know the identity of the murderers, the
slayers’ motive was clear enough. Ida
Helen Baker was an extremely rich widow
who lived alone and, therefore, appeared
to be an easy robbery victim. However,
there was another queer discrepancy in,
the story she told Patrolman Cason. She
said that the only item of value in her
home was the $5 she had had in her
purse. Yet the investigators found in her
apartment $341 in cash, several thousands
of dollars’ worth of jewelry, and a vast
amount of negotiable stocks and bonds.

It was at 3:30 on Friday afternoon—
almost 12 hours since Ida Helen Baker
had died in Maryland General Hospital
—that an alert policeman telephoned the
office of Chief Inspector Lusby and re-
ported that he had spotted the much-
sought 1958 Dodge with the Ohio license
plates, parked in front of a house in the
2300 block. of Eutaw Place.

Lieutenant Glover, Sergeant Cadden
and Detective Arthur VidJer raced to the
scene in their cruiser. There they estab-
lished the fact that the Dodge presumably
belonged to George Amos, who lived in
the middle of the block. The 22-year-old
car owner was a house painter. He opened
the door of his apartment in response to
Lieutenant Glover’s knock. Asked about
the ownership of the sedan, George Amos
hesitated for a moment, then said, “Well,
it’s not exactly mine.”

“I understand,” Lieutenant Glover
countered, “that you’ve been driving it.
If it’s not yours, who does it belong to?”

The youth frowned. “Well,” he said
finally, “I guess it kind of belongs to
a relative of mine, Robert Stevens, who
lives here with me. But I don’t think it’s
exactly his, either. I believe he borrowed
it from a friend.”

When asked where Robert Stevens was,
George Amos shrugged and replied that
he had no idea.

“Tel] me,” Lieutenant Glover pressed,
“to your knowledge was that car parked
in front of Mrs. Ida Baker’s house last
night?”

Suddenly the house painter became
taciturn. He did not, he said, wish to
answer any more questions.

“In that case,” said the officer, “we'll
take you down to headquarters. We have
some other questions to ask you there.
We'll also take along the Dodge and
see if anyone can identify it as the auto-
mobile parked in front of the widow’s
apartment on the night she was mur-
dered.”

George Amos was not the most co-
operative witness who had ever been
questioned in Northern District police
headquarters. By 8:30 that evening he
had provided very little information.
However, at that exact time, the telephone

rang in the office of Chief Inspector Lusby.
One of the patrolmen in a prowl car was
reporting.

“We've spotted that converted Packard
hearse you want,” he said. “It’s on the
500 block of Otterbein Street. I’ve asked
a few questions, and it apparently belongs
to a fellow called Harvey Damron.”

Two minutes later, Lieutenant Glover,
Sergeant Cadden and Detective Vidler

were on their way to the scene. Ten

minutes after that, '
buzzer of Harvey D:

The door was op
youth with black
Lieutenant Glover
Harvey Damron.

“Why, no,” the yo
Robert Stevens. Wh

“The police,” th:
“And we already h
atives, George Amo

Now Lieutenant
apartment. Harvey |
man with brown hz
living room watchi
sponse to the lieuter
ron admitted that }
handyman, that he
Packard hearse, anc
jobs from time to
residents of Eutaw

Without tipping
Cadden asked the
ever worked for Id

A vague express!
Damron’s face. “Ge
he said. “I work fo

“Well,” said Dete
go to headquarters
your memory. We
along with us, too

At 10 o’clock that
between the law =
place at Northern
quarters, in the of!
Lusby. Neighbors c
were driven to t!
shown the 1958
Packard hearse. T
identified the Doc
they claimed had
Baker dwelling on
August 10.

Chief Inspector
the evening questi
George Amos and
on Saturday mor
the suspects were
of the prisoners—
were held on sus;
commit robbery a
detained only for !

The weary offic
tainers of black
summoned the re}
more police, like m
ment agencies, ar:
newspaper publici
crime in their are

“Tomorrow,” an
tor Lusby, “the st
Harris, will retur:
cation. I shall pu
evidence we have
murder. Exactly
have gleaned fron
tion I cannot divu

The chief inspe
he was about to o
additional suspec
fugitives as Ron
old youth who liv
West Pratt Street:
600 block of Was

According to t
prime motive fo:
robbery; neither
nor her murder
conspirators belie
widow had sev:
worth of valuabl«
This, as it later de
However, the mur
ing more than t
from the rich wo

Chief Inspector
that some two ho
detectives to the
and Ronald Gile
young men were

ODOM, Charles Harvey, white, asphyxiated Missouri SP (Jasper Co.) on 3-6-196l.

NO PAROLI

FROMTHE

by WARREN LORING

ITH the possible exception of
VW child-rearing, no problem in
modern society attracts as
many self-professed experts as crime
and punishment. And, like child-
rearing, everyone seems to be in total
disagreement with everyone else.
Prisons are too harsh, prisons are too
soft. Prisons rehabilitate, prisons do not
rehabilitate. Prisoners should be made
to understand they are locked up as
punishment for their crimes. Prisoners
need only to be treated with under-
standing and love to make them re-
spectable members of society again.
And lately there is that remarkable new
theory which holds that inasmuch as
imprisonment of felons is not retarding
the nation’s rampaging crime rate, then
prisons are not the answer and they
should be abolished forthwith.

Surprisingly, the experts who have ,

all the answers on all other facets of the
problem are vague about alterna-
tives. At this writing, they seem to
think that if we open the penitentiary
gates and let out all the misunderstood
no-goods, everything will take care
of itself.

Then there is the subject of parole.

Parole is good. Parole is bad. Prisoners
have to wait too long for parole, prison-
ers are paroled too soon. You pay your
taxes and you take your choice.

This is the story of a man who was
paroled not only too soon, but too often.
Ultimately, he paid a high price for his
benevolent treatment at the hands of
tender-hearted parole officials, but the
price he paid cannot be compared to the
awesome price paid by his last innocent
victim.

Charlie Odom had done about six
‘years of a 10-year stretch for burglary

at Kansas State Prison in Lansing,
Kansas, when parole authorities of that
state decided that his “good behavior”
entitled him to parole. It was a pretty
surprising judgment. It wasn’t as
though they weren’t aware of Odom’s
record, because they had his dossier in
front of them, a dossier which clearly
indicated that if ever there was a
habitual unregenerate criminal, it was
Charles Harvey Odom. His record had
begun at the age of 14, and since then he
had been in and out of jails and prisons
like a runaway jack-in-the-box. He had
been paroled again and again, only to
commit new crimes which put him back
in stir.

But although Charlie was not the
brightest felon who ever lived, he had a

native shrewdness which had taught

GAS CHAMBER

him one thing: all he had to do in prison
was cool it and not make waves, and he
was a cinch for parole the moment he
became eligible for same. The Kansas
parole board proved the theory for him
again when they gave him that last
“good behavior” parole.

And six months later, Charlie com-
mitted the most savage crime of his long
criminal career, the brutal, senseless
rape-beating of a pretty 13-year-old
girl.

After his release from the Lansing
prison, he had gone back to his most
recent home in Wellington, Kansas,
where he got a job working for the citv
as a laborer. For six months he man-
aged to keep his nose clean. Then, on
July 22nd, he decided to drive to
Springfield, Missouri, to visit relatives.
He made the trip, stayed overnight, and
started back for Wellington around 2:00
p.m. the next day, Sunday, on a route
that took him through Joplin, Missouri.

Driving through a residential district
in that city, he spied a pretty young girl
playing with her dog “Happy.” She was
only 13, but she had developed early
and could have passed for a couple of
years older. She was playing in an
alley behind her grandmother’s house,
where she was spending the summer.

Charlie’s first look at the pretty
youngster “turned him on.” He drove

With a vicious rape assault on a young girl he had
snatched off the street, this no-good, who had served
time in prison previously, went too far. Under the pressure
of public opinion, he was taught the ultimate lesson ...

36 Master Detective
September, 1982

(Same article, TRUE DETECTIVE, March, 1973,p51)

714

done with a pocket knife, and presented many
features of atrocity. Patrick O’Shea met his
end with bravado. Speaking to Deputy
Jailer Fortin, on the eve of execution, he re-
marked jocosely: “Mike, I feel just as happy
as a king, and I wish you’d tell Watson that
if he can’t tie the knot, to bring the rope to
me and I’ll tie it for him.” At the same time
he denied his guilt, declaring that no one had
seen him commit the crime.

Three Sicilians, Dominico Damina, Basti-
ano Lombardo and Antonio Catalanio, were
hanged February 18, 1876, for the murder of
Francisco Palermo, an Italian lemon seller,
twenty-five years old., The crime was com-
mitted on the morning of March 13, 1875, on
Broadway, between Bremen Avenue and An-
gelica Street. There, as Palermo was walking
with his basket of lemons, he was fired upon
by one of two men, who were hid behind an
old board fence on the same side of the street.
Palermo turned and ran across the street, but,

upon gaining the sidewalk, two shots were |

fired upon him from a lumber pile only a few
feet away. He fell mortally wounded. The
man had been regularly ambushed, and there
was no doubt that his destruction was delib-
erately planned. Suspicions fell upon five Si-
cilians. By following the footsteps of the
wife of one of these men, the detectives suc-
ceeded in effecting their capture. The case
coming to trial, the jury found no difficulty
in finding the three men named guilty, and
they were ordered to be hanged. The case
was carried to the Supreme Court, upon ap-
peal, but without changing the result; and
executive mercy being refused, the sentence
was duly carried out. That Palermo was
himself a desperate character was probable.
Indeed, the defense charged that he had killed
his own uncle, and that his putting away was
but an act of self-defense. As Damina as-
cended the scaffold he is said to have kissed
the scaffold quite affectionately two or three
times. An incident quaintly reminiscent of
the fierceness of the old Calabrian vendetta,
which regards satisfied vengeance as the su-
preme happiness.

William Wiener was hanged February 1,
1878, for the murder of James M. Lawrence.
Wiener was a young man of but twenty-one
years of age, and his case aroused much sym-
pathy, as the fatal shooting for which he was
executed resulted from the misconduct of his

worthless wife, who, by her vagaries was known >

EXECUTIONS OF CRIMINALS.

as “Crazy Jane” among her set, which was of
the most vicious. The pair were separated,
but the woman seemed to take a delight in
pestering her husband. Wiener was engaged
as an assistant watchman and “bouncer” at
the Opera Comique; and there “Crazy Jane”
would go in one of her drunken spells. On
the night of January 20, 1877, Lawrence, who
was assistant barkeeper at the saloon adjoin-
ing the Opera Comique, called Wiener down
to see his wife. It is said he did not know of
the unhappy relations existing between the
pair. Be that as it may, upon the departure
of the woman, Wiener accused Lawrence of
having done him “a dirty trick.” High
words followed. Lawrence seized a soda bot-
tle, to throw at him, and Wiener drawing his
revolver, shot him with fatal results. Ap-
peals were made for executive mercy, but
without avail.

The crime for which Henry J. Redemeier
was hanged April 23, 1880, was of particularly
deliberate and callous character. A stone
mason named Vosz was engaged with some
six others, in setting a heavy stone in a foun-
dation, when Redemeier (who had no ap-
parent business on the premises) was seen to
approach. Pushing the muzzle of his weapon
within three inches of Vosz’s head, he fired.
One of the workmen attempting to interfere,
Redemeier pointed his pistol at him, and or-
dered him back. He then again advanced,
and with the words, “I guess he ain’t dead
yet; I’ll give him another,” once more fired
into Vosz. When in the lock-up, Redemeier
remarked coolly, “I’m glad I did it, I done my
work well.” Upon his arrest he admitted
that he “had it in for Vosz for two years.”

Edward Nugent was hanged the same day
for the murder of his wife, which crime was
committed August 20, 1876. The woman, it
appears, had refused to serve him with a meal,
which he had demanded; but a long series of
family jars seems to have preceded. The
woman appears to have used her tongue freely,
working her husband up to an “intense pitch
of excitement.” The son and daughter of
the condemned man united in petitioning the
Governor for mercy, but the law was allowed
to take its own course, the chief ex-
ecutive regarding the case as one of
“willful, deliberate and premeditated wife
murder.” The double execution of Nu-
gent and Redemeier took place before
an assemblage of some seven hundred

OF HISTORY AND BIOGRAPHY
FOR READY REFERENCE.

PA ist

WILLIAM HYDE AND/HOWARD L. CONARD.

i
th 4
ius

NEW YORK, LOUISVILLE, ST. Louis:
THE SOUTHERN HISTORY COMPANY,
HALDEMAN, CONARD & Co., Proprizrors.

1899
PUBLIC LIBRARY
BIRMINGHAM, ALA.

ty
f ‘4

Neither Gardner nor any of the others
made a move to help her. Mercer jerked
her up by the head of the hair and
dragged her towards the stairway.

As Mercer dragged her up the steps
she cried back to her escort, “Steve!
Please, Steve, don’t let him do this to
me! What’s the matter with you?”

Gardner ignored her pleas. Instead he
went to the stairway and hollered up
to Mercer, “Happy birthday, Tiny!”

At that, Mercer ripped Karen’s dress
from her body and tossed it down to
Gardner. Karen’s pleas for help and her
screams grew weaker and eventually
subsided. A half-hour later Tiny’s huge,
naked frame came lumbering down the
steps. As he headed for the shower,
he paused at the bathroom door.

“She’s all yours, boys ... . and there’s
enough for everybody.”

“Next!” Gardner yelled, and he took
the steps leading upstairs two at a time.

Several minutes later Gardner yelled
down for Lee to come up. Lee was only
upstairs a few minutes before he yelled
for Tiny to come, up. Kerns said Lee
wanted Karen to give him oral sex
and she refused. Mercer put the shot-
gun to her head and told her he would
blow her brains out if she didn’t do as
she was told. She accommodated Lee.

When the three men had satisfied
their perversions, they left Karen naked
and sobbing upstairs and returned to
their beer drinking.

Tiny stared at Kerns. “What the hell’s
the matter, you a faggot or some-
thing? Get to hell upstairs. We got her
broke in good for you.

To avoid any conflict, Kerns went
upstairs and entered a bedroom where
Karen was stretched out on the bed
nude, and sobbing. He sat down be-
side her, then covered her with a
sheet.

“I’m sorry about this,” he told her.
“T don’t want anything to do with this.”
Karen threw her arms around him and
sobbed. “Look, Karen,” Kerns told her,
“play along with them. Even if you
have to make it look like you’re en-
joying it. If they think you’re going
to go to the cops they’ll kill you.”

When Kerns returned downstairs,
Gardner, who was just leaving with
Lee, asked him, “How was it?”
“Good,” Kerns replied. Mercer asked
Gardner, “What about the slut? What
do you want me to do with her?”

“Kill the bitch!” Gardner said, as he
closed the door behind him. x

Mercer answered, “It will be done,
20

brother.”

Kerns said hé’didn’t take them seri-
ous and went to sleep on the couch.
He was awakened by Mercer’s loud,
yells from upstairs, When he entered
the bedroom, he saw Tiny straddling
Karen on thebed. His meaty hands
were around her neck. Her face was
purplish and her eyes were bulging.
Kerns was too horrified to move.

‘Mercer got up from the bed and
told Kerns. “Take ‘the bitch’s pulse.”
Kerns obeyed.

“Well, is she dead? Is she dead?”

Kerns answered softly. “No. She
has a slight beat.”

Mercer doubled up his ham-like fist
and drove it ‘into Karen’s once pretty
face time and time again. Blood
splashed everywhere. Kerns could hear
the sound of bones crushing.

“Now see if she is dead.”

“No, she still has a pulse.”

This enraged Tiny. “This is a hard
bitch to die,” he screamed as he
pounced back on the bed. and contin-
ued to strangle her.

“Take her pulse,” he huffed. “Tell me
it quit.”

“There’s no pulse,” Kerns answered
hoarsely. “She’s dead.”

Tiny yanked her off the bed and
wrapped her in a sheet. He then took

the bedsheets and tossed thém in a.

washing machine.'This done, he told
Kerns to open the tailgate to his pick-
up truck. He slid the body onto the bed,
Once inside the ¢ab, Tiny directed
Kerns to a remote spot where they

dumped the body. End over end it went,.

deep into a ravine. Halfway down,
the sheet came loose and blew away
in the wind. Karen lay naked at the bot-
tom of the canyon, in a makeshift grave
unfit for a dog.

After signing a confession, Wilson

told the shaken informant, “You could

be an accessory, you know.” Kerns said
he knew. He had tears in ‘his eyes
when. he told the lawman, “I just
wanted to tell Karen’s story.”

“You've told it, now ake us to the
body,” Wilson said. ©

The decomposed corpse of Kiron
Keeton was found at 217th and State
Line in Johnson County, Missouri,
where Kerns had’ directed the police.

It was several days before dental charts

positively identified the remains as that
of the blonde cocktail waitress.

Three hours after the discovery of the
body Steve Gardner was picked up by
police in a lounge in Lenexa. Gardner

didn’t come easy. It took four police
officers to handcuff him and cart him
back to the Johnson County jail.

‘ Dr. James Bridgens, the pathologist

who performed the autopsy, said the
body’s decomposition prevented him
from determining what caused Keeton’s
death or for that matter, if she had been
sexually assaulted.

“It was one of the worst I have ever
seen and I’ve seen quite a few,” he
told detectives. “He estimated she
had been dead since August 30th or
31st.

Both Mercer and Gardner were ar-
raigned on a capital murder charge. Pre-
liminary hearing was set for Thurs-
day, October 12, 1978. They were
both held without bail in the Cass
County jail.

The preliminary hearing was held
in the Harrisonville, Missouri, court-
room of Magistrate Judge Donald F.
Witchcraft, and lasted almost three
hours. The state called only two wit-
nesses; John Kerns, who witnessed
the murder, and the mother of Karen
Keeton, who presented a background
on her daughter.

Despite threats on his life by Miss-

ing Links, Kerns was unflappable in

his account of the slaying. Defense
attorneys Al Hardy and John Lozano
failed to shake the state’s star witness
in their exasperating cross-examina-
tions. They tried to show that Kerns

_ had received immunity from prosecu-
tion in exchange for his testimony,

but Kerns said his only promise was,
“We'll see what we can do.”

Tiny Mercer and Steve Gardner
both sat at the defense table listening
to Kerns weave a rope around their

‘necks. Tiny was dressed in corduroy

_ jeans and an orange T-shirt. Gardner
‘ wore jeans and a sleeveless T-shirt.

The outcome of the preliminary hear-

ing was predictable. Judge Witchcraft
ordered both defendants held over for
trial'on capital murder charges.
_ It was‘nearly a year before Mercer
came to trial. By this time, his attor-
neys ‘had successfully argued that be-
cause of pre-trial publicity he could-
n’t get a fair trial in Cass County. The
trial was moved to Springfield, Greene
County, Missouri. :

One week before he was to stand trial
Mercer stood before Judge H. Keet in
the Greene County Circuit Court,
charged with the rape of the 17-year-
old cheerleader. It was also there on a

change of venue from Cass County. A

Superior Cou* ~~
and Judge K

year sentenci
Links were also trie
the same crime. Th
year sentences with
behavior.

On Monday, Oct«
selection began fo:
der trial in the same
cer’s rape trial. Jud
the presiding judg
three-man, jury was
riod of three days,
out of 122 prospec

Defense Attorney
that all members o
ily be barred from
cause their tears m
Judge Crow deniec
warning Karen’s
not to distract the

The trial was sh«
deliberating three f
George “Tiny” M
first-degree murde

In the second pt
jury was asked tc
by lethal injection |
with no parole all
They recommend
be put tq death.

Steve Gardner’s
on Tuesday, Nove
Boone County C
lumbia, Mis
venue from C
nesses told uw »
same evidence pr
trial was admissib
Everything was t
results.

Cass County pr
ton had asked for |
the jury decided
sentence would b
no parole for 50
did not do the ac

Gardner was lec
in handcuffs to b:
tence he is still s

George “Tiny”
death in the Mis:
lethal injection o1
man described as
only prisoner put
that year.

(Editor’s note: Th
polino, George Hui.
the real names of 1
the foregoing stor)
been used because
public interest in t
ple.)

It took four police
ff him and cart him
yn County jail.

ens, the pathologist
ie autopsy, said the
tion prevented him
vhat caused Keeton’s
atter, if she had been

ie worst I have ever
‘n quite a few,” he
‘He estimated she
ice August 30th or

d Gardner were ar-
murder charge. Pre-
was set for Thurs-
1978. They were
it bail in the Cass

hearing was held
le, Missouri, court-
te Judge Donald F.
asted almost three
1 only two wit-
who witnessed
\other of Karen
ented a background

in his life by Miss-
was unflgppable in
2 slaying. Defense
y and John Lozano
state’s star witness
ing cross-examina-
o show that Kerns
inity from prosecu-
for his testimony,
only promise was,
e can do.”
id Steve Gardner
ense table listening
rope around their
ressed in corduroy
ge T-shirt. Gardner
sleeveless T-shirt.
1e preliminary hear-
2. Judge Witchcraft
dants held over for
rder charges.
year before Mercer
his time, his attor-
lly argued that be-
publicity he could-
1 Cass County. The
Springfield, Greene

he was to stand trial
‘e Judge H. Keet in
‘ircuit Court,
of the 17-year-
wao also there on a
om Cass County. A

Superior Court jury found him guilty
and Judge Keet hit him with a 30
year sentence. Three other Missing
Links were also tried and convicted for
the same crime. They were given 20-

year sentences with time off for good .|.

behavior.

On Monday, October 10, 1979, jury.

selection began for the Keeton mur-
der trial in the same courtroom as Mer-
cer’s rape trial. Judge John Crow was
the presiding judge. A nine-woman,
three-man, jury was selected over a pe-
riod of three days, with one alternate
out of 122 prospects.
Defense Attorney Lozano requested
that all members of the victim’s fam-
ily be barred from the courtroom be-
cause their tears might sway the jury.

Judge Crow denied the request, while’

warning Karen’s mother and sister
not to distract the jurors.

The trial was short and sweet. After
deliberating three hours, the jury found
George “Tiny” Mercer guilty of the
first-degree murder of Karen Keenan.

In the second phase of the trial, the
jury was asked to recommend death
by lethal injection or life imprisonment
with no parole allowed for 50 years.
They recommended that Tiny Mercer
be put to death.

Steve Gardner’s murder trial began
on Tuesday, November 27, 1979, in the
Boone County Circuit Court at Co-
lumbia, Missouri, after a change ,of
venue from Cass County. The same wit-
nesses told the same stories and the
same evidence presented at Mercer’s
trial was admissible at Gardner’s trial.
Everything was the same, except the
results.

Cass County prosecutor, Joe Hamil-
ton had asked for the death penalty, but
the jury decided that the appropriate
sentence would be life in prison with
no parole for 50' years, since Gardner
did not do the actual killing.

Gardner was led out of the courtroom
in handcuffs to begin serving the sen-
tence he is still serving today.

George “Tiny” Mercer was put to
death in the Missouri State Prison by
lethal injection on January 6,1989. The
man described as a “monster” was the
only prisoner put to death in that state
that year. *
(Editor’s note: The names Johnny Cop-.
polino, George Hui, and John Kerns are not
the real names of the persons so named in
the foregoing story. Fictitious names have
been used because there is no reason for
one interest in the identity of these peo-
ple.

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ansas City police said the beautiful

BLONDE WAS

BIRTHDAY PRESENT”

TO HER KILLER!

by STEVE HAMILTON
cial Investigator for OFFICIAL DETECTIVE STORIES

OM THE MOMENT they received the missing per-
‘ns report on Karen Keeton, a beautiful, 22-year-old
‘onde, Kansas City, Missouri police officers sensed
; more involved than a young woman unexpectedly
ywn for a few days. The report was made September 3,
aren’s mother who said her daughter was last seen
| of August 30th.
ther said Karen lived alone in an apartment at Lake
a, a fashionable, private lake and resort area on the
edge of Kansas City. Her landlady told Karen’s
she last saw the girl two or three days before she
ired.
was employed part time as a waitress at the Blue
jounge, a cocktail lounge at 11816 Blue Ridge, on
City’s south side. She left the lounge about 10:30
he night of August 30th, and hadn’t been seen since.
_ared 1965 Camaro, was still parked in the lot behind
ze, Karen’s mother said she talked to her daughter the
‘re she disappeared and she didn’t mention plans to
wn.
‘n is a very dependable girl. I just know she wouldn't
» more than a day or so without telling me,” the mother

Live. Jerry Borchers filled out the missing persons re-
-ed on information he received from the girl’s mother,
1g the name of her current boyfriend, William Harri-
» mother said Karen had been dating Harrison regu-
more than a year but recently had been having dates
ver men, too.
ng the telephone number given him by Karen’s
Borchers talked to Harrison about Karen’s disap-
e. Harrison seemed relieved to talk to the officer. He
was extremely concerned about Karen because he was
she wouldn’t leave town without telling him.
ist saw Karen at her apartment the night of August
uring the evening she didn’t mention anything about
ig to be away from home for a few days. In fact, Harri-

son continued, nothing unusual happend during the evening,
no telephone calls, unexpected visitors, nothing.

When he didn’t hear from Karen and there was no answer
when he telephone her, Harrison stopped by the apartment to
see what was wrong. There was no one at home. Karen’s dog
was tied to a tree in the backyard and obviously had not been
fed recently.

“That’s when I really got worried. Karen wouldn't leave her
dog tied up without any food. Whenever she goes out of town
she always takes the dog with her,” Harrison explained.

Detectives went to the Blue Seven Lounge to process Ka-
ren’s Camaro for fingerprints and to search for any evidence
that might explain her disappearance. Seven cards of latent
prints were lifted from the interior of the vehicle.

The next day Sergeant John Wilson, head of the missing
persons unit, questioned Harrison again. Harrison didn’t have
much additional information, but he did tell Wilson that a
man named Steve Gardner had been asking Karen to go out
with him. Gardner, 24 years old, was a part-time bouncer at
the Blue Seven. Karen told the man, Harrison said, that she
didn’t like him and didn’t want to go out with him.

“However, he did send her a bunch of roses a week or so ago.
He seems a little creepy to me and Karen said the same thing.
That’s really all I know about him,” the boyfriend said.

Wilson next talked to Jane Adams, a co-owner of the Blue
Seven, who confirmed that Karen had been employed a couple
of nights a week at the lounge for the last few months. She said
Karen last worked the night of August 30th.

Ms. Adams said Gardner had shown a romantic interest in
Karen but she didn’t know if he ever had a date with her.
Gardner's regular employment was with a roofing company in
Lenexa, Kansas, and he worked part-time as a bouncer at the
lounge. When he wasn’t working he frequently was in the
lounge as a customer.

The woman said she let Karen off work early the night of
August 30th because business was slow. Gardner, who was not
working but was there with some other men, left with her. Ms.
Adams said Karen was having trouble getting her car started
and she assumed Gardner was going to help her.

The part-owner of the cocktail lounge also was concerned
because she hadn’t heard anything from Karen, whom she
described as a dependable worker who was quiet and didn’t

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flirt with the customers. Ms. Adams said she had asked Gard-
ner if he knew where Karen was and he said he hadn’t heard
from her.

Gardner told her that he and Karen went toa restaurd®t Sq _

something to eat and drank a couple of beers on the way back
to the Blue Seven where Karen got out of his car. Karen got
into her car and he went home. Gardner said he left before
Karen drove away, so he didn’t know what might have hap-
pened after he left.

Sergeant Wilson contacted Gardner at the roofing company.
Gardner told him he and Karen went to Sambo’s Restaurant at
Ninety-fifth and Blue Ridge to eat. They stopped by the
Quik-Trip convenience store on Winchester Road and he
bought a six-pack of beer. The drank the beer on the way back
to the lounge, and he asked her to go out with him Friday
night, which would have been September Ist. Karen said she
would if she didn’t go to the Lake of the Ozarks for the
weekend. She told Gardner to call her.

“I called and there was no answer,” he said.

Gardner said he didn’t get out of his car when they returned
to the Blue Seven but waited until Karen got into her car
before he drove away.

“T suppose I should’ve waited because I knew she’d been
having trouble with it, but I just didn’t think about it,” Gard-
ner added.

“Then you don’t actually know if her car started?” Wilson
inquired.

“That’s right,” Gardner answered.

The next day Detectives Richard Gentry and Ed Sanford
interrogated a young woman who told them she was Karen’s
best friend; she last saw Karen on August 25th when they
went to the Club 95 to listen to the band there. They stayed
until the club closed then went home. She said Karen had been
dating Harrison for more than a year, but she seemed to be
tiring of the relationship and had been going out with other
men.

The woman was positive that Karen wouldn’t leave town
without telling someone, and sne absolutely would not leave
her dog with nothing to eat. Karen had mentioned to her that
Steve Gardner had been asking her for dates and had even
sent her some roses. But, she said, their relationship consisted
only of an occasional dance at the Blue Seven.

When Karen’s landlady was questioned, she told officers she
was sure Karen was in some kind of trouble because of the
unexplained absence. She had never disappeared before. She
permitted the officers to search the girl’s apartment. They

Lovely Karen Keeton vanished, ended up dead.
learned she had been gang-raped, beaten, stran

bers later
! to death

1372

turned around to return to the kitchen, Hen-
nings ran into the bedroom and slammed the
door closed. She then threw herself through

the closed second-floor window, landing on

the grass outside, where she heard gunshots.
Hennings ran down the street screaming and
called the police from a-neighbor’s house.

Meanwhile, one of the assailants had dis-
covered that Hennings was gone and re-

turned to the kitchen to inform the others.

Nutall then looked into the kitchen and saw
Robert Murray hold Stewart up and shoot
him in the back. She ran out of the apart-
ment to a nearby grocery store,-where she
told a security guard that a man had been
shot in the apartment.

During the time of Nutall’s escape, the

police responded to Hennings’s phone call.
She told them that Robert and William Mur-
ray were two of the assailants and. provided
descriptions. The police also responded to
the call from the security guard. Both wom-
en returned to the apartment with the police
and discovered that Jackson and Stewart
were dead in the kitchen. Each man had
been shot twice in the back. Three bullets
were recovered from the bodies, and analysis
indicated that all three were fired from the
same gun.

The day after the incident, the police went.

to Robert. Murray’s home and arrested him.
After being given his Miranda rights, he
denied being present at the apartment. La-
ter that night, Nutall identified the defendant
in a lineup, and told the police that he was
the man she saw shoot Stewart. After the
police informed the defendant. that he had
been identified, he admitted having been in
the apartment, but said that he left before
the shooting began. After being read his
rights again, he told the police that he did
not bind, gag, shoot, or kill anyone. Accord-
ing to the police, he made this statement
before being told any details about the vic-
tims’ treatment.

We now turn to the He: issues. raised on
appeal.

Ill.

Before we consider other issues, we must
first address the impact of our order remand-

(1468, 118 L.Ed.2d 517 (1991).

34 FEDERAL REPORTER, 3d SERIES

‘ing the case to the District Court and ap-

pointing new counsel on the District Court’s
authority to address the merits of the issues
raised in the amended petition (filed by new-
ly appointed counsel). Murray argues the
District Court erred when it determined that
some of the claims he raised in-his third
amended petition were procedurally barred
as abusive under 28 U.S.C. § 2254, Rule 9(b).
The State argues that any issues. raised. in
the third amended petition which were not
included in the other two amended petitions
are barred by the abuse-of-the-writ doctrine.

[1-3] The abuse-of-the-writ doctrine gen-
erally prohibits a petitioner from raising
claims in a subsequent habeas petition that
could have been, but were not, raised in the
first federal habeas proceeding. McCleskey
v, Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, .
The general
bar against abusive claims also extends. to
successive claims which raise grounds identi-
cal to those heard and decided on the merits
in a previous petition, Sawyer v. Whitley, —
US. —, —, 112 S.Ct. 2514, 2518, 120
L.Ed.2d 269 (1992). The respondent bears

the initial burden of pleading abuse of the

writ, and, once he or she does so, the peti-
tioner bears the burden of proving that no

abuse has occurred. McCleskey, supra, 499
U.S. at 494, 111 S.Ct. at 1470. Normally,
once the state pleads abuse of the writ as a
defense, a court must determine why the
issue was not raised in an earlier petition.
Smith v. Armontrout, 888 F.2d 580, 540. (8th
Cir.1989). Examples of the types of issues .
which are prohibited under the abuse-of-the-
writ doctrine include grounds for relief which
were deliberately withheld or which were not
filed by competent counsel. Jd. at 540-41.

Dismissal of a petition can be avoided if the.
earlier petition “was filed and litigated. with-
out [petitioner’s] knowledge, participation, or
authorization[.]” /bid. (citations omitted).

[4,5]. The Supreme Court has carved out

two types of exceptions to the general bar

against successive writs. To qualify for the
first exception, a petitioner must show cause
for failing to raise the claim in an earlier |
petition, as well as prejudice resulting from

MURRAY v. DELO : 2 1371
Cite as 34 F.3d 1367 (8th Cir. 1994)

amended petitions had never communicated
with him and had filed the petitions without
his authorization: or participation. On No-
vember 13, 1991, we granted the motions and
appointed new counsel. Murray filed a third
amended ‘petition, which, after review, the
District Court denied... Murray v. Delo, No.
90-370C(8) (E.D.Mo., August 23, 1993).

_ Murray now appeals from this. order.

Meanwhile, on August 20, 1992, Murray
filed a petition for writ of habeas corpus
under Mo.Sup.Ct.R. 91 and a motion to recall
the mandate of that Court. On September
22, 1992, the Supreme Court of Missouri
denied the habeas corpus petition and reject-
ed the motion to recall the mandate.

After a brief discussion of the facts of this
case, we address each of Murray’s argu-
ments. We take the facts from the Missouri
Supreme Court opinion. State v. Murray,
744 S.W.2d 762. That Court’s recitation of
the facts is supported by the evidence intro-
duced at the trial.

II.
Claudia Hennings and Gladys Nutall went
to Jeffrey Jackson’s St. Louis apartment
sometime after 11:00 p.m. on December 5,

1985. Jackson’s friend, Craig Stewart, was
also present: at the apartment.

Hennings, Nutall, Jackson, and Stewart
drank alcohol, smoked marijuana, and .took
cocaine while watching television. Sometime
after midnight, William Murray, the defen-
dant’s older brother, arrived at the apart-
ment and talked with Jackson in a bedroom.
Shortly thereafter, William left the apart-
ment. He returned a half hour later and
pulled a gun. He told everyone that this was
a holdup and to. get on the floor. While
Hennings, Nutall, Jackson, and Stewart were
lowering themselves to the floor, Robert
Murray and a third person: entered the
apartment. Robert Murray. was carrying a
gun and wearing a ski mask.

Hennings had known William Murray for
eight years and considered him to be her
best friend; she had also known the defen-
dant for eight years. When she heard Rob-
ert Murray speak, she recognized his voice.

She told him so and told him to remove his
mask. He rolled the mask up.

William asked Jackson what he had in the
house, and Jackson told him to look in the
dresser in the bedroom. William and the
third: participant searched the entire apart-
ment, constantly asking the victims for mon-
ey or guns. While William searched, the
defendant held a gun on the four victims.
William took Nutall’s purse and Stewart’s
wallet, and Robert took Hennings’s purse
and~ Jackson’s wallet. Although they
dumped the contents of all of these items into
a pillowcase, they told the victims that the
money was insufficient. They demanded
more money and asked whether anyone else
would be coming to the apartment. Jackson
told William that. Tracy Adams would be
coming by around 3:15 a.m. to take him to
work. William asked Jackson if Adams
would have any money or guns with him, and
Jackson said he did not know. William and
the others. decided. to wait for Adams and
kept the victimson the floor.

After several hours had passed, William
kicked Nutall in the side. He then took her
into the kitchen, raped her, and sent her
back into the living room. While she was

‘being raped, Nutall saw the defendant look-

ing in from the living room at her and Wil-
liam. In addition, the defendant sexually
assaulted Hennings by rubbing her genital
area.

Shortly thereafter, the Murrays tied Jack-
son’s and Stewart’s hands behind their backs,
and gagged and blindfolded them. Then,
Robert Murray went into the kitchen and
found a butcher knife and some steak knives.
The assailants took Jackson and Stewart into
the kitchen, placed them on their knees, and

began hitting them. Throughout the beat-

ing, the Murrays repeatedly said that the
money they had found was not enough and

‘demanded more. Then, the Murrays picked

up the knives and began stabbing them into
the floor around Jackson and Stewart.

Hennings, who was watching the assaults
from the living room, got up off the floor and
attempted to jump out a window. The defen-
dant caught her, told her not to try it again
or he would cut her throat, and ordered her
back to the floor. When the defendant

MURRAY v. DELO 1373
Cite as 34 F.3d 1367 (8th Cir. 1994)

that failure. McCleskey v. Zant, supra,. 499
U.S: at 494, 111 S.Ct. at 1470. A court may
also. proceed to decide the claim on the mer-
its if the defendant is actually innocent of the
crime itself or of the sentence. Herrera v.
Collins, —- U.S. ——, ——, 118 S.Ct. 853,
862, 122 L.Ed.2d 203 (1998). To. qualify for
this exception, the defendant must: prove by
clear and convincing evidence that “but for
[a] constitutional error, no reasonable juror”
would have convicted him of the crime in
question or found him eligible for the sen-

tence at issue. Sawyer v. Whitley, supra,

— US. at —, 112 S.Ct. at 2523. . The

scope of the actual-innocence exception is

very narrow. .See Dugger v. Adams, 489
US. 401, 109 S.Ct. 1211, 108 L.Ed.2d 435
(1989); McCleskey v. Zant, supra. The in-
quiry for this Court is not “whether the trier
of fact made the correct guilt or innocence
determination, but rather whether it made a
rational decision to convict or acquit.” Herr-
era v. Collins, supra, — U.S. at ——, 118
S.Ct. at 861.

[6] Murray’s new counsel filed a third
amended petition, the fourth petition overall,
with the District Court. This petition raised
several issues which were not included in the
pleadings before the District Court when it
issued the original order denying Murray’s
writ. The District Court held that any
claims that had also been raised in the third
petition were barred as successive, and that

‘any new claims raised in the fourth petition

were barred as abusive, under 28 U.S.C.
§ 2254, Rule 9(b).!. Moreover, the District
Court held that Murray could not qualify for
any of the exceptions to the abuse-of-the-writ
doctrine. We disagree. :

When we remanded the case to the Dis-
trict Court, we did so on the basis of a pro se
motion filed before this Court asking us to

dismiss .Murray’s court-appointed counsel. .

The essence of Murray’s motion before this
Court was that his lawyer was not communi-
cating with him and had not raised all of the
issues before the District Court which Mur-
ray wanted raised. In sending the case back
to the District Court, our intention was for a
new court-appointed counsel to plead and

1. These holdings were in the alternative. The
District Court helpfully went on to address Mur-

present all of the issues together in one
petition. The purpose of appointing new
counsel and remanding the case was to cor-
rect the problems created by the first court-
appointed lawyer, and to ensure that the
District Court reviewed, on the merits, all of
the claims Murray raised which he had not
already defaulted by the time he reached the
federal habeas corpus stage. :

[7] This case can be distinguished from
other cases in which this Court has held that
grounds for relief, raised for the first time in
motions filed after a district court has en-
tered a final order, abuse the writ. Compare
Bannister v. Armontrout, 4 F.3d 1484, 1445
(8th Cir.1993); Blair v. Armontrout, 976
F.2d 1180, 1184: (8th Cir.1992), cert. de-
nied, ——- US. ——, 113 S.Ct. 2357, 124
L.Ed.2d 265 (1993). This case is one of the
“rare” cases.in which dismissal for abuse of
the writ was improper, because petitions two
and three were filed and litigated without
Murray's. knowledge and __ participation.
Smith v. Armontrout, supra, 888 F.2d at 541.
In federal habeas cases brought by prisoners
in state custody who have been sentenced to
death, appointment of counsel is required by
statute. 21 U.S.C. § 848(q)(4)(A), part of the
Anti-Drug Abuse Amendments of 1988. We
do not think Congress had in mind a lawyer
who would not communicate with his or her
client, or who would file a petition without
consultation with or authorization from the
client. To attribute legal effect to such a
lawyer’s omission of claims the client wished
to raise, would be both unfair in itself and
inconsistent with the purpose of the statute
making appointment of counsel mandatory.

Such a result would almost make nugatory

our order of remand, the whole purpose of
which was to let Murray start over again
with a clean slate and adequate counsel.

The State points out that McCleskey v.
Zant, supra, the main Supreme Court opin-
ion summarizing the current state of the law
on abuse of the writ, mentions no “exception”
for cases involving inattentive or uncoopera-
tive lawyers. We think it would be a mistake
to read McCleskey as a comprehensive stat-

ray’s. Claims on the assumption that they were
not barred as abusive or successive.

1374
ute-like codification. It lays down general
principles. It is no deviation from those

principles to say, as we did in, eg., Smith v.
Armontrout, supra,-that abuse of the writ is
not a defense where. the former petition was
filed without the knowledge, participation, or
authorization of the client. We hold that
abuse of the writ is no defense to those
claims newly included in the fake amended
petition.

[8] The case of those claims in the third
amended petition that were included in the
petitions previously adjudicated by the Dis-
trict Court is even clearer. We can see why

that Court would not feel called upon to re-

decide claims it had already fully addressed.
But on no tenable theory could this Court be
barred from appellate review of the District
Court’s dismissal of those claims. Our re-
mand order was entered before we reviewed
the substance of the District Court’s decision
on the former petitions. Murray is entitled
by statute, 28 U.S.C. § 1291, to an appeal as
of right from that decision. The fact that a
remand took place to allow him to obtain
competent counsel, and that that new lawyer
chose to include in the third amended peti-
tion some of the same claims previously
pleaded (perhaps fearing that omitting them
could be taken as some sort of waiver), is no
reason whatever to hold that we cannot now
review the District Court’s disposition of the
repeated claims.

We hold that Murray’s third amended peti-
~ tion is not subject. to an abuse-of-the-writ
defense, and we turn to the substance of his
claims.

[9] Murray argues that his conviction and _
sentence were based on the perjured testi-

mony of the state’s two principal witnesses,
Hennings and Nutall, and that this consti-
tutes a violation of his constitutional rights.
The District Court held that-this issue was

procedurally barred, and we agree.2 Mur-

ray’s state-court petitions did not raise this
issue, and, as a result, we cannot address it

2. We put to one side the question whether, as
Murray argues, the presence of perjured testimo-
ny, in and of itself, without regard to the prose-
cution’s knowledge of the perjury, is a due-pro-

34 FEDERAL REPORTER, 3d SERIES

unless Murray can qualify for one of the
exceptions to the procedural-bar. doctrine.
Murray cannot qualify for the cause-and-
prejudice exception, and he does not argue
that he can. Therefore, unless he qualifies
for the actual-innocence exception, we. are
barred from reaching the merits of his claim. —
Herrera: v. Collins, supra, — U.S. at ——,
113 S.Ct.- at. 862.

[10] In assessing whether to review Mur-
ray’s claim on the merits, we must review the _
evidence to determine “whether, after view-
ing the evidence in the light most favorable
to the. prosecution, any rational trier of fact
could have found the essential elements of
the crime beyond a reasonable doubtf,]” not
whether “[we believe] that the evidence at.
{Murray’s] trial established guilt beyond a
reasonable doubt.” Jd. at ——, 118'S.Ct. at
861 (citations and internal quotations omit-
ted). Thus, our job is not to determine
whether the trier of fact made the correct
determination of guilt or innocence, but to
determine whether it could have made a
rational decision to convict the petitioner if
the new evidence Murray now cites had been
before it. The petitioner bears the burden of
showing by clear and. convincing evidence,
that but for the alleged constitutional viola-
tion no reasonable juror. would have found
him eligible for the death penalty under Mis-
souri law. Sawyer v. Whitley, supra, —
US. at ——, 112 S.Ct. at.2517. .

Murray’s claim is that he is actually inno-
cent of the crime and that he was convicted

“because the witnesses, Gladys Nutall and

Gloria Hennings, perjured themselves. In
support of his allegations, Murray points to
what he describes as contradictions in the
witnesses’ testimony. . He also offers an affi-

_davit from his brother William, in which Wil-

liam claims that he committed the acts for
which the jury convicted the petitioner; this

' affidavit conflicts with the testimony offered

at trial by Nutall and Hennings. Finally, the

"petitioner offers several other affidavits filled

with statements from people who claim to

cess violation. Because we do not reach the
merits of the perjured-testimony claim, it is un-
necessary to discuss this issue. ~

990

in 90 days from date of Commission’s noti-
fication letter, date of letter was excluded.
V.A.M.S. §§ 1.040, 218.111, 213.111, subd.
1; V.A.M.R. 44.01, 44.01(a).

5. Civil Rights 451

Regional manager for employer would
be proper party to action under Missouri
Human Rights Act, despite employee’s fail-
ure to name regional manager as_respon-
dent in administrative complaint, if there
was sufficient identity of interest between
regional manager and employer for region-
al manager to have notice of complaint and
to take part in conciliation efforts. V.A.
MS. §§ 1.040(a), 213.111, 536.110.

6. Workers’ Compensation <2090

Missouri’s workers’ compensation law
provided exclusive remedy for emotional
distress inflicted during course of employ-
ment. V.A.M.S. § 287.010 et seq.

7. Civil Rights 452

Employee’s complaint under Missouri
Human Rights Act did not include allega-
tions showing on face of complaint that
there was some insuperable bar to recovery
of punitive damages for employer’s alleged
conduct in discharging employee for re-
fusing to work overtime without compensa-
tion, despite physical condition making it
impossible for employee to do so. V.A.
M.S. § 213.010 et seq.

8. Master and Servant ¢=34

Under Missouri law, no cause of action
existed for wrongful discharge.

9. Action <2

Under Missouri law, no independent
cause of action existed for violation of pub-
lie policy.

10. Jury ¢=25(6)

Party’s failure to demand jury within
ten-day period following service of last
pleading to relevant. issue waives right to
jury trial, but district court has discretion
to relieve plaintiff of such waiver and order
jury trial upon plaintiff’s motion. Fed.
Rules Civ.Proc.Rules 38(b, d), 39(b), 28 US.
C.A.

767 FEDERAL SUPPLEMENT

11. Jury <25(6)

Employee asserting state civil rights
and federal labor law claims against em-
ployer would be granted jury trial on ap-
propriate issues, despite his failure to de-
mand jury trial until nearly two months
after he filed his second amended petition.
Fed.Rules Civ.Proc.Rules 38(b, d), 39, 28
US.C.A.

12. Jury €14(1.5)

Employee was entitled to jury trial on
claims against employer and manager pur-
suant to Missouri Human Rights Act.
V.A.M.S. § 287.010 et seq.

13. Jury €14(1.4)

There was right to trial by jury in
action brought by employee under the Fair
Labor Standards Act for back wages and
liquidated damages incurred as result of
allegedly discriminatory discharge. Fair
Labor Standards Act of 1938, §§ 15(a),
16(b), 29 U.S.C.A. §§ 215(a), 216(b).

Marylou Calzaretta, Richard L. Geissal &
Associates, St. Louis, Mo., and Daniel J.
McMichael, McMichael & Logan, Chester-
field, Mo., for plaintiff.

Terry L. Potter and John B. Renick,
McMahon Berger Hanna Linihan Cody &
McCarthy, St. Louis, Mo., for defendants.

MEMORANDUM

LIMBAUGH, District Judge.

Plaintiff Steve Waldermeyer originally
filed this action in the Circuit Court of the
City of St. Louis against his former em-
ployer ITT Consumer Financial Corporation
and its agent Tom Roth. He alleges he had
a physical condition that prohibited him
from working overtime and that defen-
dants fired him for refusing to work over-
time without compensation. On October
29, 1990, plaintiff filed his second amended
petition. Count I alleged violation of the
Missouri Civil Rights Act; Count II alleged
wrongful discharge and intentional inflic-
tion of emotional distress; and, Count III
alleged violation of the Fair Labor Stan-
dards Act (“FLSA”), 29 U.S.C. § 201 et seg.
On November 8, 1990, defendants removed

WALDERMEYER v. ITT"CONSUMER FINANCIAL CORP. ~ 989
Cite as 767 F.Supp. 989 (E.D.Mo. 1991)

dence that Jackson and Stewart had two
bullet wounds each in their upper torsos
is consistent with deliberately aimed
shots and inconsistent with the conjec-
ture and speculation that the shots were
fired in panic. Further, there would
have been no reason for the defendant
and his accomplices to kill the victims in
reflex to Hennings’ escape. The victims
were bound. They could have made no
move to take advantage of the confusion
caused by the escape by either attempt-
ing to escape themselves or to turn on
their assailants.
State v. Murray, 744 S.W.2d at 773-74.
This Court agrees with the Supreme
Court’s determination and finds that peti-
tioner was not entitled to a second-degree
murder instruction because it was not sup-
ported by the evidence.

In sum, after careful review, the Court
finds that petitioner is not entitled to habe-
as corpus relief on any of his claims. Ac-
cordingly,

IT IS HEREBY ORDERED that petition-
er’s petition for writ of habeas corpus is
denied.

IT IS HEREBY FURTHER ORDERED
that any motions or requests for a hearing,
to the extent they remain pending before
this Court, are denied as moot.

IT IS HEREBY FURTHER ORDERED
that petitioner’s execution is stayed until
sixty days from the date of this order.

O & KEY NUMBER SYSTEM

ANMs

Steve WALDERMEYER, Plaintiff,
v.

ITT CONSUMER FINANCIAL CORP.
and Tom Roth, Defendants.

No. 90-2103-C-5.

United States District Court,
E.D. Missouri, E.D.

May 6, 1991.

Employee brought action against em-
ployer and manager, alleging violation of

Missouri Civil Rights Act, wrongful dis-
charge and intentional infliction of emotion-
al distress, and violation of the Fair Labor
Standards Act (FLSA). Matter was re-
moved to federal court, and employee filed
motion to remand, employer and manager
filed motion to dismiss or strike, and plain-
tiff filed motion for jury trial and employer
and manager filed motion to strike jury
demand. The District Court, Limbaugh, J.,
held that: (1) case was removable; (2) Mis-
souri Human Rights Act claims were time-
ly; (8) no cause of action existed for
wrongful discharge; and (4) employee
would be permitted to have jury trial de-
spite untimely demand.

Ordered accordingly.

1. Removal of Cases 13

Action brought under Fair Labor Stan-
dards Act (FLSA) could be removed to fed-
eral court, though state and federal courts
have concurrent jurisdiction over such ac-
tions; removal statute allowed removal
when federal district court would have
original, not necessarily exclusive, jurisdic-
tion, and Congress did not expressly pro-
vide that FLSA actions could not be re-
moved. Fair Labor Standards Act of 1938,
§ 16(b), 29 U.S.C.A. § 216(b); 28 U.S.C.A
§ 1441(a).

2. Federal Civil Procedure €-1772

Court should not grant motion to dis-
miss merely because complaint does not
state with precision every element of of-
fense necessary for recovery; complaint is
sufficient if it contains allegations from
which inference can be drawn that evidence
on these material points will be introduced
at trial.

3. Federal Courts <417

State rules govern computation of time
with respect to petition filed in state court
but removed to federal court.

4. Civil Rights 448

In determining whether action under
Missouri Human Rights Act was filed with-

/ NEW YORK TIMES NATIONAL THURSDAY, AUGUST 1, 1996

erests, in dairy and agribusiness.
Mr. Gunderson’said he learned last
ek from Speaker Newt Gingrich
at_ conservative social groups led
Mr. Weyrich were planning a
l-financed effort to attack him if
did not end the write-in effort.
Mr. Gunderson said that Mr. Ging-
h had asked him not to run in light
the Weyrich threat but that the
eaker had also said he would back
n if he decided to stay in the race,
The Write-In Steve Gunderson
mmittee reported last weekend
it a random telephone survey con-
cted July 20-22 among 400 people
icated 63 percent of those who
d they would vote in the Republi-

primary planned to write in Gun-
co's name.

Missouri Executes Killer

ST. LOUIS, July 31 (AP) — A
convicted killer who had also served
time for rape and armed robbery
was executed by injection early to-
day. The killer, Emmett C. Nave, 55,
was executed at the Potosi Correc-
tional Center for the 1983 killing of
his landlady, Geneva Roling, whom
he shot 10 times in her Jefferson City
apartment. Mr. Nave had earlier
confronted Ms. Roling about parking
problems, lack of heat in his apart-
ment and problems. with his mail
delivery, prosecutors said.

The judge said he sentenced Mr.
Nave to death because he was a
repeat offender.

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_ homes, where he sexually assaulted them.

- Was doing.

FuuLzonl Stia/ C42ErTvE
Thursday, August 1, 1996 ;

STATE & LOCAL NEWS DIGEST

Missouri man executed

POTOSI, Mo. (AP) — A man who shot his Jefferson City landlady

10 times and abducted and assaulted four women from a nearby hos-
pital was executed by injection early Wednesday, |

Emmett C. Nave, 55, was Pronounced dead at 12:32 a.m., three min-
utes after the first of three lethal drugs were administered as he lay
strapped to a gurney in the execution room at the Potosi Correctional
Center.

As a prison official announced the first dosage was being adminis-
tered, Nave turned his head and mouthed a few words to a priest who
was one of his witnesses. Officials said his last words were, “Just

_bless my family.”

Nave had previously been sentenced to two life terms on rape and |
armed robbery charges and had been on parole just eight months when _
he killed his landlady, Geneva Roling, on Nov. 19, 1983.

He had earlier confronted her about parking problems, lack of heat
in his apartment and problems with his mail delivery, prosecutors said.

After killing Roling, Nave ordered his wife to drive him to a hospi-
tal where, armed with a rifle, he demanded a shot of Demerol, a.
painkiller. After receiving an injection, he took four women employ- /
ees hostage and ordered his wife to drive them to one of the hostage’s

He eventually was captured after one of the hospital employees
injected him with a sufficiently large dose of Demerol to cause him to —

At trial, Nave contended he was so drunk he didn’t know what he

He was sentenced to death as a repeat offender.

ST OT ee Ee pet te aT Rese

day soon when they will be able to
tray ross the commitnity shewing
onl common European passport
and driver's license. :

Making life easier for business,
member countries will accept most of

Executions

From page one
minutes, he was unconscious. That’s —
fine with me,” Peach said. “But my
only thoughts at the time ... I happen *
to Know precisely what Mercer did to
this young lady. It was abominable
what they put this girl through before
whe killed her. :
“I was very pleased to see the law
carried out as it was intended. Mercer.
had plenty of time to get ready to meet
his Maker — in contrast with his
victim. .
“Mercer was given the whole com-

plete trial and appellate process and .

10 years to get his life together. I'll
never give (his execution) a second
thought. |
“Missouri will be a better place
when the other 69 get executed.”
Sixty-eight men and two women

are under the

Missouri.
Peach agreed with Westfall that

Smith was making a mockery of the

- legal system.
“I doo’t think there’s any question
that Gerald Smith: is showing to the
world tliat the court system hasn't got-

‘ten serious with this issue of the death ©
_ penalty,” Peach said. “The courts are .

not carrying out the law that the peo
ple want to see take place.
“It’s simply the liberal judges in the

high appellate courts imposing their

will, as opposed to enforcing the laws
that the Legislature and Congress have
passed.”

. Tnere were 414 executions in
the United States last year. Six of those
executed were whites and five blacks.
Mercer’s was the first death penalty
carried out in 1989.

death penalty in .

out Europe and peraaps evel
the United States, he said.

The company is not concerned
‘about the effect on its military sales in
the short term, he gaid, but long term
is something else again. “In the long

Senate critics, led .by Democrat Bull
radley of New Jersey, see that kind
f openhanded financing as delaying

Soviet reforms by not forcing that
country to choose between its military

fh | oe
The notion of killing people efficiently is all too

reminiscent of the execution camps. yy

- HENRY SCHWARZCHILD, director of the American Civil Liberties Union's

Capital Punishment Project in New York

“yes, congratulations, Missouri’s
was the first this year,” said a sarcas-
tic Henry Schwarzchild, director of the
American Civil Liberties Union's Capi-
tal Punishment Project in New York.

The project monitors executions
throughout the country for the ACLU,
which opposes the death penalty.

Schwarzchild also said more execu-
tions will be performed in Missouri

this year because more inmates will —

have exhausted the appeal process.

“Other cases will be decided on
their merits, not because Mercer has
gone down the tube,” he said.

Schwarzchild said the ACLU op-

the death penalty because it is
“not the civilized thing to do.” .

“I talked this morning with a young
lady who was & witness at Mercer’s
execution,” he said Friday. “She didn’t
find the lethal injection a very trau-
matic or dramatic experience. It’s de-
signed precisely to make that end — to

Libya

From page one ~ Fal
more hesitant, it will make us less like-
ly to leap out in front and do some-
thing rash,” the source said. “They're
concerned about the fallout.”

_ European nations are geographical-
ly close to Libya, he noted. “All of

make it easier on your stomach — and
that’s precisely the reason why I find
that disgusting.

“The shocking thing about it

was that it wasn’t shocking. She didn’t

find it particularly traumatic; the next |

time she should try to find an electro-
cution or a hanging and see how she
likes that.

“The notion of killing people effi-
ciently is all too reminiscent of the
execution camps.” ;

Schwarzchild said the ACLU also

finds the death penalty objectionable
because it discriminates economically
and, indirectly, racially.
“It's true, mind you, that violent
crime is largely committed by people
from the socioeconomic. underclass,”
he said. “If you need a hundred bucks,
you're not going to pack a gun through
the streets of St. Louis. te
“And the lower economic strata in
this country is enormously dispropor-

them have both commercial and polit-

ical interests in the Arab world, and .

they’re highly vulnerable on oil. Their
perspective is different,” he said.

At the same time, many recognize
that their worst fears about the last
_US. attack on Gadhafi were unfound-
ed, the source said. “They're going to
wait before they tear their hair out

this time,” he said. ne

ated Eu s
er rope. But if walis

tionately non-whites.”

FUSTOTICALLY, the 5 tgs.

ferred a fragmentea b— “

“So we have the proms

around it, that turns to peri

The Rev. Francis X. Cleary, a Jesuit
professor at St. Louis Ooversty oe
has written in opposition to the death
penalty, said studies repeatedly have |
shown it is not a deterrent to crime. -

_ “Then, what is the justification for:
doing it?” he asked. “We're stepping=-
down to their level, responding to Vio-~
lence with violence. We are supposed:
to be morally superior to that man.
who killed. ‘

“The man obviously is dangerous
and should not be allowed access {to
the community, but to kill him~ de-
grades and corrupts society. We're
telling people that you solve problems:
by stomping on them.” =

Cleary said he, too, has been &
victim of a violent crime — in 1972
while riding a bicycle in Forest Park.
“It was a rather brutal mugging which
laid me up for several months,” he
said.

_ But he said his first thought was not
of revenge on his assailant, a teen-agel
who never was caught.

“J remember waiting for the plastic -
surgeon to scrub down. I remembe:
lying there and thinking, ‘Good God, !
don’t like where I am but I don’t wan
to be like a person who does some
thing like this,’” he said.

Cleary also said it was no acciden
that the first man executed in Miss
ouri, and the others close in line, art
white.

“Watch what they’re doing,” he saic
“They're trying to uP the quota on kill
ing white men because the ovel

whelming percentage of criminals 0
death row are blacks.

“They're very touchy about tha
That’s why they want to start with th
whites.”

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George “Tiny” Mercer, who was executed early Friday, meeting with reporters in May at the Missouri State Penitentiary.

‘Their Time Has Come”

By Tom Uhlenbrock
Of the Post-Dispatch Staff

‘3

Ea ROSECUTORS in the St.

J Louis area, hailing the exe-

cution of George “Tiny”
Mercer ag justice long overdue,
predict more death-row inmates
will run out of legal remedies
shortly. “a

“Obviously, Gerald Smith is on
the razor’s edge,” said George R.
“Buzz” Westfall, St. Louis County
prosecuting attorney. :

Westfall noted that it took the
state of Missouri more than 10
years to carry out Mercer’s death
sentence. He said such “intoler-

that the first execution has been
carried out.

suggest the next one or two would
be coming in more orderly fash-
—

able” delays may be ending now

- “i’¢ probably agree that the
first one in so many years would ©

More Executions Imminent,

46 | “

be probably agree that the first one in so
many years would suggest the next one or two |
would be coming in more orderly fashion. it bodes

ill for anybody on death row. 79 .
GEORGE R. “BUZZ” WESTFALL, St. Louis County prosecuting

attorney .

ion,” he said. “It bodes ill for any-
body on death row.”

Westfall said Smith, who was
convicted of the fatal beating in
1980 of a former girlfriend, had
made the courts look “ludicrous”
with his nearly decade-long execu-
tion delay.

“One moment he wants to die
and they pay attention to him, and
the next moment he changes his
mind,” Westfall said of Smith. “It

' killing a waitress in

looks as if he gets to call the shots
rather than the courts.”

Mercer was executed early Fri-
day in Jefferson City for raping and
Belton, Mo.
The execution was the first in Miss-
ouri since 1965.

Westfall said Mercer’s death may
mark the end to executions being
held up by what he termed “frivo-
lous” appeals.

“Many are filing these appeals as

Prosecutors 5ay

delaying tactics, which is under-
standable if you were in their posi-
tion,” he said.

St. Louis Circuit Attorney George
Peach agreed that executions
would speed up in Missouri, but not
because appeals would be ignored.

“Each one of these cases is me-
ticulously looked at by the courts,
as they should be,” Peach said.
“There will be others in Missouri in
1989, not because the dam has
broke but because they’ve been on
death row so long that their time
has come. :

“It’s a disgrace that Mercer
was executed in the 11th year after
his crime was committed,” Peach
said.

Peach praised the method bys
which Mercer was executed — !e-.
thal injection — aS “quick and_
economical.”
“Someone said that within two

See EXECUTIONS, Page 4

MERCLA, George (Tiny), white, leth. inj. Missouri on January G, 1989.

Dolitan (Cte.

City Times

Jam 4, 1984

Mercer execution
tobe early Friday

By Tom Miller
Of the Mid-America Staff

JEFFERSON CITY — Since
October, Missouri repeatedly has
edged close to its first execution
in more than two decades, only
to be pulled back by last-minute
appeals.

On Tuesday the Missouri Su-
preme Court again set the death
penalty machinery in motion
when it scheduled George C.
“Tiny” Mercer to die by lethal
injection at 12:01 a.m. Friday.

The Friday date took correc-
tions officials by surprise.

“We thought it would prob-
ably be next week,” said Dale
Riley of the Department of Cor-
rections. “But we will be pre-
pared, as usual.”

It would appear that Mercer,
44, a Kansas City motorcycle
gang member who has fought
execution for nearly a decade,
has run his course in the courts,
A federal appeals court in St,
Louis last week rejected his final
appeals. After that ruling, the
Missouri Supreme Court acted
quickly to set a new execution
date.

Even the strongest foes of capi-
tal punishment are certain that
an execution eventually is going
to take place in Missouri as they
have in other states.

Henry Schwarzschild, director
of the American Civil Liberties
Union’s capital punishment
project, is a strong Opponent of

See MERCER, B-4, Col. 1°

2B: 3 SUNDAY, JANUARY 8, 1989 ,
Is Not Justice

edosde AS
eter e db

Vengeance

The.pigus pronouncements of state offi-
cials after Missouri carried out its first ex-
ecytign since 1965 cannot hide the fact that
the death penalty is no more than a cruel
and. ynjust way to punish one killing by
inflicting another. The crime that George
“Tiny Mercer was convicted of was horri-
ble; one that deserved long imprisonment.
But taking onevlife in exchange for another
is not justice — it is vengeance.
* Gov. John Ashcroft; who refused to use
“his power to stop Friday morning’s execu-
tion, said Mercer's death by lethal injec-
tion served the ends of justice. “This pain-
ful‘event is necessary to reaffirm the value
the'’stdte of Missouri places on innocent
human life,” he said. “IT extend my sympa-
thy to; Mr. Mercer’s family. At the same
time, we must never forget the families of
the victims of heinous crimes.”

- But another killing is a strange memori- |

al‘tq the lite of Karen Keeton, who was
murdered by Mercer in 1978. Her mother
said..Mercer’s death would assure that he
could- never be free to kill again; still, a life
sentence with no parole could have accom-
plished the same end, without resorting to
state-sanctioned killing.
House Speaker Bob Griffin,

- the.execution that resulted from the death
penalty bill he sponsored, called capital
punishment “society’s way of dealing with
this type of deliberate premeditated mur-
dey’ But are the elaborate preparations

thé. state must make for an execution, and —

the .dagged persistence with which it pur-
sued‘the case-through the courts, any less
deliberate or any less premeditated?

Now that Missouri's 24-year moratorium

wees

_ proved that executions deter

a witness to.

on executions has ended, the question that
must be asked is this: What has the death
of Tiny Mercer accomplished? Missouri-
ans are no safer; he has been behind bars
for years and could have been kept there
for the rest of his life. No studies have ever
capital

crimes, but studies have shown that the
death penalty falls disproportionately on
those least able to defend themselves.
They have also shown it is cheaper to im-
prison someone for life than for the staté to-
proceed through the legal appeals neces-
_sary to carry out capital punishment.
The strongest argument against the
death penalty is this: It stems not from a
humane impulse for justice but from a
pase impulse for revenge. Those who
clamor for a life in exchange for a life
seek not so much {o protect society from
further harm as to satisfy their desire for
vengeance. But life imprisonment without
parole is a sufficient safeguard against fur-
ther violence, without dragging the state
down to the same level as the convicted
killer it wants to punish.
The death of Tiny Mercer brings to 105
the number of people executed since capi-
tal punishment was reinstated in the Uni-
ted States in 1976. In Jefferson City, 69
more people sit on death row. For justice
truly to be served, Mercer’s death will be-
come not the first in a series of Missouri
executions but a sad footnote in the state’s
history. As the sign of one protester outside
the penitentiary Thursday night read,
“When the state. kills, humankind is de-
meaned.” It is time for such demeaning

- state-sponsored killings to end.

B-4 The Kansas City Times

Wednesday, January 4,1989

Mercer execution scheduled for Friday |

Continued from Page B-1

the death penalty and travels across
the nation to speak at rallies and
legislative hearings.

‘Missouri will soon be joining the
killing ranks,” Schwarzschild said
this week. ‘“‘The public sentiment is
there, and it will soon begin to
happen in Missouri, almost to the
point where people stop noticing.
It’s an American tragedy, soon to be
acted out in Missouri, too.”

But for corrections and law en-
forcement officers, the preparations
at the Missouri State Penitentiary
already have become routine.

Streets are closed, the more than
2,000 inmates are locked in their
cells, television rigs light up the
streets outside the main gate and
nearly 200 extra: law officers mill
around, dodging the biting winter

_ < }

F i)

winds off the Missouri River.

There’s often a black humor from
the guards and others, breaking the
tedium and the tension as the state
prepares to kill someone.

There’s also realistic doubt each
time about whether the execution
will take place. None has occurred
here since the state put the death
penalty back on the books in 1977.

Mercer has been close to death
before. On Oct. 20, he ate a “‘last
meal” and readied himself for
death, reading his Bible and biker
magazines through. the long
evening. Not long after he finished
eating, courts stopped his execution
and he returned to the “normal”
routine of life on death row.

Mercer first arrived on death row
Nov. 9, 1979, after he was convicted
to die for raping and murdering 22-
year-old Karen Keeton.

w= ® a

Mercer was moved to an isolation
cell last week after the appeals court
rejected his latest appeal.

Tonight, guards and law officers ~

will “walk through” the procedures
for guarding the outside of the pris-

on, practicing for the real thing -

Thursday night. There are always
fears that trouble wil erupt during
preparations for an execution. Re-
cently before one planned execu-
tion, death row inmates tossed light-
ed toilet paper through their cells
bars. But as one prison official said,
**They do that a lot anyway.”

Other corrections employees will
prepare for the influx of reporters
and television crews, who set up a
vigil inside the inmate-visiting
room, near a table full of tele-
phones.

Inside, prison officials will watch
Mercer as he sits in an isolation cell.

Mercer, who has had kidney prob-
lems in the years he’s been in pris-
on, must take medication.

Across town, officials from the
attorney general’s office have a
direct line to courts that might halt
the execution, and they, in turn, can
quickly notify prison officials if the
execution is halted.

About 6 p.m, Thursday, the other
inmates will be locked in their cells,
and if the execution has not been
halted by 10 p.m., the witnesses —
including reporters — will be in
place in a small stone building in-
side the prison.

If the execution is not stopped,
two prison employees will push but-
tons to start deadly chemicals flow-

ing into Mercer’s arm. Neither man |

will know who actually adminis-
tered the lethal dosage.

~~ a -_- -

’ tered at 12:03 a.m. and he

* 12:09.

' directly behind his head.

gave a “V” sign and then f?

| | Edition * *

Friday, January 6, 1989

The Rangas City Times

35c

Misc ‘9%r0en STOW

Missouri executes Mercer

fi (8a ‘; ioe

By Tom Miller
Of the Mid-America Staff
JEFFERSON CITY — George C. “Tiny”
Mercer was put to death early this morning

. for the brutal rape and murder of a 22-year-

old Lake Lotawana woman more than 10
years ago.

An injection of lethal
chemicals was adminis-

was prounounced dead at

Mercer’s wife, Christie,
looked at her husband
from behind a window

“I love you,” she said. She

pointed heavenward. Mer-
cer talked to his wife Mercer
through the window, but his words could not
be understood.

Mercer, 44, is the first inmate executed in

‘ Missouri since convicted murderer Lloyd Leo
: Anderson in 1965 and the first since the
_ legislature reinstated a revised death penalty
' law in 1977. He also was the first Missouri

inmate to be executed by lethal injection.
Gov. John Ashcroft, in a statement released

by Corrections Director Dick Moore after the
execution, said in part: “Justice has been
served. This painful event is necessary to
reaffirm the value the state of Missouri places
on innocent human life. I extend my sympa-
thy to Mr. Mercer’s family. At the same time
we must never forget the families of the
victims of heinous crimes.”

Mercer had been on death row since No-
vember 1979, losing all efforts to appeal his
conviction. On Thursday, his final appeal was
denied when the U.S. Supreme Court, on a 7-
2 vote, refused to block his execution. Later
Thursday afternoon, Ashcroft refused to in-
tervene, saying the state Board of Probation
and Parole had concluded that the judicial
process had functioned properly in Mercer’ s
case.

A phone line had been kept open in case the
execution was halted at the last minute, and
there was a phone in the execution chamber.

At 11:05 p.m., Mercer was taken to a
holding cell in the death house in the prison
yard of the Missouri State Penitentiary. At
11:42, he was taken to the execution chamber,
strapped securely to a hospital cart. He
clutched a Bible in his left hand.

See MURDERER, A-9, Col. 1

Officials waited outside the death house late Thursday before the execution.

The Associated Press

J ohnson County
warms to Hayden
for windfall plan

Kansas governor
praised for promise
of full refund. B-1

National/World

An FDA advisory panel de-
cides against recommending
new warning labels for birth
control pills. A-3

*696T ‘9 Aaenuep (*0p sueerp) **om ‘*fut *UL9eT

x * Friday, January 6, 1989

The Kansas City Times- A-9

lercer put to death |

pened “would be the Lord’s will,”
according to Armontrout.

A brief religious service was held
for top corrections officials about 7
p.m. in the prison chapel.. The two
prison employees who operated the
lethal injection machine were also
at the service, according to prison
spokesman Dale Riley. .

Immediately after the supper
hour, the approximately 1,900
prisoners in the prison were re-
turned to their cells, to be locked in
for the night. They were to resume
normal activities about 5:30 a.m. .

Mercer had been on death row
longer than any other Missouri in-
mate.

Mercer, who had a full beard,
shoulder-length hair and multiple
tattoos, once contended that most
of his troubles stemmed from the
fact that he was a member of a
Kansas City motorcycle gang — the
Rancid Riders.

Mercer was convicted of murder-
ing Karen Keeton, 22, at his home
in Belton. Evidence showed friends
brought Keeton to Mercer as a
“birthday present” on his 34th
birthday.

About a month earlier, Mercer
and some of his biker allies were
involved in a gang rape in Cass

‘County in July 1978, and Mercer
was charged by county officials.

He was free on bond when he
murdered:Keeton.

Mercer was arrested about three
weeks later after the body was
found. He was convicted in Septem-
ber 1979 by a Springfield jury,
which recommended he die for the
crime.

Henry Schwarzschild, director of
the Capital Punishment Project for
the American Civil Liberties Union,
said that although the Mercer crime
was “certainly not the type of thing
to tug at people’s heart strings,” the
State’s solution was wrong.

“It’s always a sad spectacle to see
a state resume this medieval prac-
tice of ceremonial homicide that we
call execution,” Schwarzschild said.

He said Mercer’s execution was
the 105th nationally since capital
punishment was restored by the
U.S. Supreme Court and several
States in the late 1970s.

Some information for this article
was gathered by Will Sentell of the
Mid-America staff.

Buy, sell, trade, morning, evening
and Sundays with Star & Times
Classified Ads. To place your ads
dial 234-4000.—Adv.

A meee

Biker Executed in Missouri
For Killing ‘Birthday Present’

United Press International

Jefferson City, Mo.
George (Tiny) Mercer was

executed by lethal injection -

early today for killing a Kansas
City-area waitress introduced
to him as a “birthday present”
by fellow ‘motorcycle gang
members.

Mercer, 44, who had been a

death row inmate at the Missouri
State Penitentiary since Nov. 9,
1979, was given the lethal combina-
tion of drugs at 12:03 a.m. and pro-
nounced dead at 12:09 a.m.

He was sentenced to death for
the rape and strangulation in 1978
of Karen Keeton, 22, of Lake Lota-
wana in suburban Kansas City. She
was a tavern waitress who was tak-
en to Mercer’s home in Belton by a
motorcycle gang and presented to
hhim.as a “birthday present.”

Baader ~~ :

Keeton was slain while the kill-
er’s 11-year-old daughter was pres-

ent in the Mercer home. Witnesses
said Mercer shouted “die” as he
choked Keeton, who lay nude on a
bed. Her body was dumped in a
field nearby.

The U.S. Supreme Court clear-
ed the way for the execution in de-
nying a stay yesterday about nine
hours before Mercer was to be
transferred to the death chamber
on the penitentiary grounds.

The nine-member court voted 7
to 2 to reject the appeal, with Justic-
es William Brennan and Thurgood

Marshall dissenting.

In addition to being the first
person executed in Missouri since
1965, Mercer was the first put to

death in the state by lethal injection:

instead of lethal gas. He also was the
first criminal executed in the na-

tion in 1989 and the 105th to die

since the Supreme Court lifted its

a i 2

pated

ica gs Fey

ban on capital punishment in 1976. Sour

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The Largest Daily Circulation in Northern California

_ FRIDAY, JANUARY 6, 1989

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Continued from Page A-1

Mercer received a mild sedative,
and a tube was inserted into a vein
. in his left arm and a heart monitor
was attached to his chest. The tube
was connected to a machine used to
pump a combination of deadly
chemicals into Mercer’s arm.

Just after midnight, Warden Bill
Armontrout read the death warrant
to Mercer. Then two unidentified
prison employees operated switches

to activate the injection machine.
Neither operator was to know which
switch actually caused the lethal
dosage to be administered. ‘

When the drugs were , pumped
into his body, Mercer raised his
head sharply and coughed heavily,
and then his head fell back on the
cart and he did not move. ;

A few minutes later he was pro-
nounced dead.

In addition to Mercer’s wife, the
execution was witnessed by about
25 others. The group included 12
state witnesses, including House
Speaker Bob Griffin, a Cameron
Democrat, and state Rep. Wes Mill-
er, a Washington Republican. Grif-
fin' was a sponsor of the bill that
reinstated the death penalty in Mis-
souri. Others witnessing the execu-
tion were a friend designated by
Mercer; a doctor; other corrections
officials; and seven reporters.

Also on hand were officials from
the Federal Disciplinary Barracks in
Leavenworth. The federal govern-
ment recently enacted the death

‘penalty for certain drug-related
crimes, and federal officials wanted
to witness an execution.

The. witnesses and_ reporters
watched the execution through win-
dows in the execution chamber. The
state witnesses and those designated
by Mercer watched from separate

‘rooms. The corrections employees
who operated the injection machine

- were kept out of view.

_” Mercer’s body was taken by am-
-bulance to a Jefferson City funeral

- home. Funeral arrangements were
being made privately by his family,
including his wife, who married
Mercer after he was sentenced to
die.

Outside the prison, the adjacent
streets were blocked off and nearly

-. 200 extra law enforcement officers
were called in for added security.

A covey of television transmis-

_, sion trucks was parked near the
_’ front gate of the prison.

- About an hour before the sched-
-. uled execution, some 40 death pen-
| alty opponents, some carrying can-
| dles, huddled quietly in a steady

_ Karen Keeton

. .. Victim was raped, strangled

rain outside the walls of the
Missouri State Penitentiary.

Earlier in the evening, many of
the protesters were among about
two dozen people who attended a
prayer service at a Jefferson City
church about.a mile from the pris-
on. Sue Letizia of Independence,
who attended the service, said after-
ward, “In our society there is no
excuse for taking another life.”

The service was sponsored by the
Coalition Against the Death Penal-
ty, primarily religious groups that
contend capital punishment does

not prevent crimes.

“There are other ways of bringing
justice to society,” said the Rev.
Hugh Behan, a volunteer death row
chaplain who helped conduct the
40-minute service.

Mercer spent Thursday talking
with his wife, reading his Bible and
thumbing through a biker magazine.

He ate a last meal of barbecued
steak, burritos, french fries, ribs,
tacos with hot sauce, a tossed green
salad with vinegar and oil dressing,
and a large Coke. When Armontr-
out visited his cell, Mercer told him:
“I’ve got an extra burrito here. You
can have it if you want it, warden.”
Armontrout declined the offer.

Through Thursday and the
evening leading up to his scheduled
execution, Mercer remained calm,
prison officials said. He was in

telephone contact with Douglas

Laird, his. court-appointed Kansas
City lawyer.

Armontrout said Mercer looked
shocked when he learned the Su-
preme Court had turned down his
appeal, but he calmly awaited his
death and said that .whatever hap-

Murderer, rapist M

1g Lo“ BY

Missouri execution stayed

JEFFERSON CITY, Mo, — A

federal appeals cou t
Stayed the executi wae

Thursday, October 20 19
Reno Gazette-Journal ei

= ee me eee wrmmwewennnrs ss a

’ KILLER EXECUTED: Convicted
killer George “Tiny” Mercer was
put to death by injection early to-
day at the Missouri State Peniten-
tiary in Jefferson City for the mur-
der of a tavern waitress, becoming
the first Missouri inmate executed
since 1965.

10A_ Friday, January 6, 1989 m San Jose Mercury News ®@ @

National News &

in
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could
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conv:
thou
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In
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info:
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on traced movements of slain girl on the night she
ed, soon got lead on two motorcycle club suspects

4 no indication of foul play inside the apartment, and
appeared to have been taken or disturbed. There was
nee of a struggle.

ser indication that Karen had no plans for a trip came
ther friend who told police he called her on the phone
Jue Seven the night of August 30th. During their
‘tion Karen had said business was slow, and she

she would leave early. She invited him to Lake
1a the next day to water ski.

jlow-up interrogation of William Harrison, the mis-
's boy friend, the officers picked up some intriguing
tion. Harrison said he was at Karen’s apartment on
27th when Karen called him to say she was having car

She told him not to worry because she would catch a
ne.
iple of hours later, Harrison said, Karen arrived home
-ee men on motorcycles. He didn’t know who they were,
ren had said only that they were customers at the Blue

letectives were especially interested because a motor-
ing calling themselves the “Missing Links” headquar-
» nearby Belton, Missouri, and frequented the Lake
‘na area. Recently, several members of the gang had
narged in the gang rape of a 17-year-old girl.

same day Sergeant Wilson in another interrogation of
\ams, the co-owner of the Blue Seven lounge, came up
ore significant information. It provided the authorities
heir first solid lead on what might have happened to
Keeton.

he night of September 2nd a man who identified himself
ember of the New Orleans Saints professional football
‘ad come to the Blue Seven with an offer to buy out Ms.
;. After some negotiating they settled on a price of
\0 for her share, and he gave her a check in that amount.

The check later bounced, however, and the deal was nullified,
she added ruefully.

But at the time, the sale occasioned a celebration and she
and friends went to an after-hours bar. Gardner, accompanied
by several other men whom she thought were members of the
Missing Links, also were there. Gardner was extremely
drunk, she said.

During the evening one of the women with her walked over
to the bar and engaged Gardner in conversation, she said. The
woman overheard the men discussing Karen Keeton.

When her friehd returned to the table, Ms. Adams said, she
appeared to be frightened. She said she was too upset to talk
about it, but a few minutes later, the friend told her what she
had overheard. :

The men had said Gardner picked up Karen at the Blue
Seven the night shé ‘disappeared and took her to the gang’s
hangout for the purpose of sharing her sexually with several
other men. When Karen refused to go along with it, she was
raped and later was ‘‘wasted.”:

Her friend understood the remark to mean that Karen was
murdered following the gang rape. The friend who told her
this, Ms. Adams said, was deathly afraid of the Missing Links
and didn’t want them to know what she’d overheard.

The woman was contacted by Sergeant Wilson but she re-
fused to talk about Karen’s disappearance. She denied having
heard anything about Karen. She would not get involved, she
asserted. ,

The information had a strong impact on the detectives, who
now feared that Karen had been killed. The Missing Links
were well known. They allegedly had been involved in numer-
ous rapes and assaults, often in retaliation against persons
who testified against any member. Undoubtedly, persons had
good reason to fear them.

Later that afternoon, Steve Gardner was questioned at
Police Headquarters. He gave officers the same account he had
given the first time. He did not vary in his story, and he
insisted that he’d told police everything he knew about the
incident.

He said they parted on friendly terms when she got out of his
car and she had promised to go out with him ona Friday night.
She was wearing a red dress with yellow flowers on it the last
time he saw her, Gardner said.

Detective Gentry asked Gardner ifhe would take a lie detec-
tor test. Gardner was he would. He was taken to the polygraph
unit, where the test was administered by Specialist Harold
Oldham.

Gardner was asked these questions and gave these answers:

Q—Was Karen Keeton all right the last time you saw her?

A—Yes.

Q—Did you kill her?

A—No.
Q—Can you take me to Karen right now?
A—No.

Q—Did you have anything to do with Karen’s disappear-
ance?

A—No.

Q—Did you tell the truth about Karen’s disappearance?

A—Yes.

When the test was completed, Specialist Oldham told Det.
Gentry that in his opinion Gardner was truthful when he said
he didn’t kill Karen. But, Oldham added, Gardner’s reactions
when asked the other questions relating to Karen’s disap-
pearance were deceptive. It was Oldham’s opinion that Gard-
ner was holding back information.

When Gentry handed Gardner a photograph of the pretty
blonde and asked if Karen looked that way the last time he
saw her, he noticed that Gardner turned his head away as if he
couldn’t bear to look at her!

Sergeant Wilson and his men now had to face the conclusion
that Karen Keeton’s disappearance was linked to some crimi-
nal activity. They also had to achnowledge that the evidence

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Two bearded suspects, George “Tiny” Mercer and Steve Gardner (photo r.), were interrogated by police, who learn:
Gardner had been with victim on night she vanished. Under close questioning, Mercer insisted he didn’t even know

pointed strongly to murder. Until her body was found, how-
ever, the detectives clung to the hope that she might somehow
still be alive.

The investigators now made it their business to obtain the
names of all persons who had been at the September 2nd party
at which Karen’s disappearance was discussed. They all were
questioned at length. One man admitted he had heard Gard-
ner say he’d “blown Karen away.” And, another said Gardner
told him he killed the girl and dropped her body “somewhere in
Kansas.”

Sensing a breakthrough, the officers bore down hard on
prospective witnesses, especially those who had been in the
Blue Seven the night Karen was last seen. The pressure
brought results.

The woman tending bar that night was certain that Karen
and Gardner left the club together and that Karen never
returned to the lounge. A customer said he saw two other men,
one of whom he believed to be a member of the Missing Links
leave a few minutes before Gardner and the girl. He didn’t
know the man’s true name but said he was called “Tiny.”

Tiny, who stood more than six feet tall and had long blond
hair, was well known to police. He was George: Mercer, 34
years old, believed to be a leader of the Missing Links.

Earlier in the evening Gardner was sitting at the table with
Mercer and the other man and he occasionally danced with
Karen. The other men didn’t dance, but it was obvious they
were impressed by Karen’s good looks.

The officers learned that Gardner had been drinking heav-
ily since Karen’s disappearance. Persons who knew him
doubted that he actually killed Karen but believed he knew
what happened to her. Byt his time, there was little doubt in
the minds of those close to the situation that Karen was dead.
No one believed she had voluntarily left the area.

The same persons said Gardner liked the role of a “tough

guy.” And the fact that he ran with a tough crow
puted.

The following day Det. Gentry showed ph:
Karen and Gardner to employes at the Sambo’:
where Gardner said he and Karen had eaten o1:
August 30th. None recalled seeing them in th
The detectives also showed the photographs at t!
store where Gardner said he stopped for beer a.
No one remembered seeing them.

Pickup orders were issued for both Mercer and
neither was immediately located. The men on
project said they heard Mercer had taken a t
Dollar City, Missouri, for the weekend. Gard
worked for several days.

Detectives sought out and questioned Mercer’s :
in the case involving the rape of the 17-year-old ¢:
who was being held in the Cass County Jail, told
had gone to California to raise bail money for hi:
get out of jail. He said Mercer was associated w:
Angels motorcycle gang in California before he
Kansas City area.

He told the detectives that Gardner hung
Mercer and tried to be like him. However, he hac
Mercer mention a girl named Karen Keeton, an
a look at her picture, he said he’d never seen

On September 13th, Kansas City police were a:
sheriff in Harrisonville, Missouri, that Mercer
rested in connection with the earlier rape chi
presently in the Cass County Jail.

When detectives interrogated Mercer at the |
denied knowing Karen Keeton. He was shown a |
and said he’d never seen her. He admitted he wa
Seven briefly the night of August 30th. Earlier i:
he was with friends at a birthday (Continue:

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page 60)
27

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ride, she said, her attacker told her that
he had to change a flat tire on his car.

“| had this strange feeling,” she told
the court. And it was confirmed, when,
as she started to get out of the car, the
man pulled into a driveway, grabbed
her by the throat and told her to “get
down.

“I panicked,” she testified, “and he
told me he’d kill me if I didn’t do what he
said.” Then, she added, they went to an
apartment where she was assaulted and
beaten so badly that she suffered a dou-
ble jaw fracture, severe bruises and
deep fingernail cuts on the neck.

Under questioning by Assistant Dis-
trict Attorney Kelly, the short, slightly
built young woman said she picked
Johnny Moore out of an Amherst police
togues gallery while lying in her hospi-
tal bed on March 21st.

“As soon as I saw the picture I was
positive,” she said.

However, under examination by
Moore’s attorney the young woman ad-
mitted that she could not recall her as-
sailant’s clothing and, before viewing
the photo of Moore, had doubted she
could identify the rapist.

On Wednesday, October 10th, the
opening day of Moore’s trial on rape,
attempted murder and kidnaping
charges, the girl told a nine-man,
three-woman jury that, “He told me
that if I moved or screamed he’d kill
me.”

Later, after the rape, she said, her
assailant became enraged when she
cried and pleaded with him not to harm
her.

“The next thing I knew,” Jenny Long
said, “he had his hands around my
throat, trying to strangle me.” During
the struggle, she pulled her chin down
to her chest. Her assailant, who was

standing behind her, grabbed both her
chin and neck and did not let go until he
heard the sound of her jaw breaking.
Evidently believing he had broken her
neck and killed her, she said, he whis-
pered to himself: “There!”

The young woman added that she was
hospitalized for nine days as a result of
the injuries suffered in the attack. She
pointed out that she hitchhiked in-
frequently, “only when it was a hassle to
carry things on the bus.” On the day she
was attacked, she said, she had been
carrying two notebooks and a cumber-
some painting canvas.

In his final arguments to the jury,
Moore’s attorney attacked the girl’s
identification of his client as her assail-

‘ant.

* “Anybody,” he said, “could walk into
a courtroom and point to a person at a
defense table. That’s easy.”

Assistant District Attorney Kelly,
terming the evidence against the defen-
dant “overwhelming,” urged the
panelists to find Moore guilty on the
original counts of rape, attempted mur-
der and kidnaping. Judge Kasler, before
giving the case to the jury at precisely
11:28 on Tuesday morning, October
23rd, advised that they could consider
lesser charges on each of the felonies for
which Moore was indicted.

However, at 3:55, when the jurors re-
turned to the courtroom it was to an-
nounce that they had found Johnny
Moore guilty of all three counts as they
stood. Judge Kasler immediately set
sentencing for a later date. Moore faces
possible terms of 8% years to life on each
of the charges, with the sentences to run
concurrently. No dates have as yet been
set for his trial on charges of murdering
Virginia E. Malecki or raping two other
women. ant

“Birthday Present” to Killer

party for his boss on the roofing job.
That party was in Overland Park, Kan-
sas.

Sometime during the night he and
another friend drove to the Blue Seven
and had a couple of more drinks before
going home. A friend, John Campbell,
was babysitting his daughter that night
while he went to the party, Mercer said.
He added that his wife was in a hospital
at that time and that Campbell had
been living with him in his home in
Belton.

When he got home about midnight,
August 30th, Mercer continued, he im-
mediately went to bed and the next
morning went directly to the hospital,
where he spent the day with his wife. He
told them Campbell could verify this be-
cause he talked to him several times
earlier in the evening from Overland
Park.

(from page 27)

Mercer was asked if he would take a
lie detector test regarding Karen
Keeton’s disappearance. He said he had
nothing to hide and was willing to take
the test if his attorney told him it wasall
right. He said he would talk to the
lawyer and let them know later.

Mercer’s wife allegedly told officers
she called home for her husband several
times during the evening of August
30th; each time the phone was answered
by Campbell, who was living in the
home while she was in the hospital.
Campbell told her Mercer had checked
in with him several times and said he
was at a party for his boss in Overland
Park and would be home later.

About midnight Mercer was home
and she talked to him for quite a while,
she said. The next day he came to the
hospital and spent the day with her.

Campbell was next to be questioned.

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—

er, grabbed both her
did not let go until he
of her jaw breaking.
g he had broken her
sr, she said, he whis-
‘There!”
in added that she was
ne days as a result of
ed in the attack. She
she hitchhiked in-
‘hen it was a hassle to
» bus.” On the day she
: said, she had been
books and a cumber-
was.
‘uments to the jury,
attacked the girl’s
s client as her assail-

aid, “could walk into
int to a person at a
it’s easy.”
‘ict Attorney Kelly,
ice against the defen-
ming,” urged the
Moore guilty on the
cape, attempted mur-
. Judge Kasler, before
the jury at precisely
y morning, October
_ they could consider
ach of the felonies for
indicted.
en the jurors re-
m it was to an-
nad found Johnny
three counts as they
ler immediately set
ter date. Moore faces
* years to lifeon each
ithe sentences to run
ates have as yet been
charges of murdering
<1 or raping two other
kkk

(from page 27)

ed if he would take a
t regarding Karen
rance. He said he had
id was willing to take
ney told him it was all
e would talk to the
em know later.
illegedly told officers
ir her husband several
> evening of August
e phone was answered
10 was living in the
was in the hospital.
r Mercer had checked
ral times and said he
r his boss in Overland
be home later.

ht Mercer was home
him for quite a while,
xt day he came to the
it the day with her.
next to be questioned,

He said he’d been at Mercer’s house
from August 28th through August 31st.
He gave them the same account as
Mercer’s wife regarding the telephone
calls during the evening. Campbell said
he went to sleep later that night but was
awakened by Mercer when he got home
around midnight. -

Campbell also was asked what he
knew about Steve Gardner. He replied
that he knew he was a part-time
bouncer at the Blue Seven, but he didn’t
know him personally. He’d heard that
Gardner was dating Mercer’s ex-wife,
Campbell added.

On September 19th Detective Jim
Martin interviewed the owner of the
house Mercer had been renting in Be-
Iton. The owner said Mercer had lived
there about eight months and was three
months behind in the rent so he evicted
him and put new locks on the doors. He
said Mercer threatened him with bodily
harm if he didn’t let them in to go their
belongings, but the owner refused to let
them in unti] they paid the back rent.

The owner told Martin there always
was a lot of activity around the house
while Mercer lived there, persons com-
ing and going and motorcycles parked
around the house. About a week after he
evicted Mercer, the landlord continued,
he found a sawed-off shotgun concealed
in the oven of an old stove on the back
porch. He was afraid children might
find the weapon so he took it to his own
home. He turned the shotgun over to
Det. Martin.

The next time officers asked Mercer if
he would take the polygraph examina-
tion he bluntly refused. He told the of-
ficers to “take the polygraph and stick
it. 'm not going to take one because I
don’t have to.”

Still later that same day, Steve Gard-
ner was observed sitting in a pickup
truck in front of a 7-11 convenience
store on East One Hundred Seventh
Street. Detectives approached him and
asked to see his driver’s license. Gard-
ner said he didn’t have one and refused
to give his identity. However, after he
was placed under arrest he admitted he
was Steve Gardner.

Gardner was searched and a knife
about eight inches long was found in a
leather scabbard under his shirt. He
was taken to the South Patrol Station
for questioning by Detéetives Martin
and Roger Gibson. Despite the rigorqus
interrogation, Gardner stuck to his
original story about the hours he spent
with Karen Keeton the night of August
30th. Finally, he was released on bond
after being booked for not having a
driver’s license.

The next day Martin and Gibson in-
terviewed Campbell again. Campbell
gave them the same basic information
he had given earlier, but he did add that
on the morning of August. 31st, he and
Mercer stopped at Gardner’s residence

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prosecutorial-misconduct claim is derived
from the perjured-testimony claim, which is
itself barred. Finally, it often happens that
Witnesses contradict themselves in state-
ments given from time to time. Such contra-
dictions are material for cross-examination,
and may cause the jury to disbelieve the
witnesses. They do not, without more, es-
tablish perjury.

[11] The petitioner next argues that the
death sentence violates his’ constitutional
rights because it is. disproportionate to his
responsibility for the crime. Murray argues
that he did not kill or attempt to kill anyone,
nor was he a major participant with the
requisite mental state to be eligible for the
death penalty. He offers the above-men-
tioned affidavits as support for his version of
the night when Jackson and Stewart were
killed. The District Court held that the evi-
dence in the record supported the death sen-
tence. We agree, and, having already decid-
ed that the affidavits are legally insufficient,
we base our agreement on the facts set out
by the Missouri Supreme Court in its opin-
ion. :

Robert Murray, the petitioner, accompa-
nied his brother and another person to the
apartment of Jeffrey Jackson, one of the
murder victims. When the petitioner en-
tered the apartment, he was masked and
holding a gun. While William Murray and
the other participant searched the apart-
ment, the petitioner held a gun on the four
victims. The petitioner participated in the
robbery, taking Claudia Hennings’s purse
and Jackson’s wallet.

In addition, the petitioner watched while
his brother raped Gladys Nutall in the kitch-
en. Petitioner sexually assaulted Hennings.
He helped bind the two men, Jackson and

Craig Stewart, and then took them into the.

kitchen and participated in beating them. In
addition, the petitioner took a knife and
stabbed the floor around Jackson and Stew-
art. When Hennings attempted to escape
from the apartment, the petitioner caught
her, threatened her, and ordered her back to

4. The evidence at trial indicated that: all bullets
recovered from the two bodies were fired from

the floor. Then she managed to escape.
When she did so, she heard gun shots, pre-
sumably those which killed Stewart and
Jackson. Nutall testified that she saw the
petitioner hold Stewart up and shoot him
execution-style. Later, when the police. ar-
rived at. the scene, they discovered both
Jackson and Stewart dead on the. kitchen
floor, each one shot, twice in the back: Nu-
tall identified the petitioner in a lineup, and
he admitted to being in the apartment and
gave a statement which revealed facts about
the incident he had not been told by the
police. ek

We review this. evidence to tdlaniing
whether it was sufficient for the fact-finder
to convict Murray of first-degree murder and
sentence him to death. Petitioner’s argu-
ment that he was a minor participant. is
wholly unpersuasive. The victims in this
case were murdered in the course of a rob-
bery, and the petitioner took an active:role in
the circumstances causing the deaths. He
held the victims hostage at gunpoint for
three hours. He sexually assaulted one of
the women. He bound and gagged the two
men and participated in stabbing the floor
around the two men who were murdered.
He prevented Hennings from escaping. and
threatened her with physical harm if she
attempted another escape. — And, perhaps
most importantly, trial testimony indicated
that he shot at least one of the men.*

The defendant next argues, on the basis of
Enmund v. Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982), and Tison v.
Arizona, 481. U.S. 187, 107 S.Ct. 1676, 95
L.Ed.2d 127 (1987), that he did not possess
the requisite degree of mental culpability to
be sentenced to death. We believe that his
reliance on these cases is misplaced. En-
mund and Tison are felony-murder. cases
which apply in situations in which the defen-
dant was not the shooter. As stated above,
the evidence at trial indicated that the peti-
tioner actually committed at least one mur-
der, and perhaps both.

[12] The petitioner also argues that the
Missouri Supreme Court did not afford him

the same gun. Therefore, the jury could have
inferred that. petitioner shot both men.

have heard William Murray confess to the
crimes before the date of petitioner’s convic-
tion,

We have reviewed Nutall’s and Hennings’s
testimony and, although it was not always
exact’ or perfectly clear, we conclude that a
rational trier of fact could have believed
these witnesses. Moreover, if William had
told petitioner’s jury that he, not Robert,
killed the two victims; the jury might: have

rational not: to.

Furthermore, we conclude that the after-
the-fact affidavits offered by Murray are in-
sufficient to sustain his claim that the wit-
nesses committed perjury. Even if believed,
the affidavits might show only that the wom-
en were mistaken, which is not the same
thing as lying under oath. In addition, the
facts in this case are similar to those in
Herrera v. Collins, supra. In Herrera, the
Supreme Court reviewed a denial of habeas
corpus in a case in which a death-row peti-
tioner argued on the basis of.an affidavit that
the affiant, and. not the petitioner, was guilty

the traditional remedy for a claim of actual
innocence based on new evidence, which was
discovered too late to file a new-trial motion,
is not federal habeas relief, but executive
clemency under state law. Herrera v. Col-
lins, supra, — U.S. at ——, 118 S.Ct. at
869. It also held that in a capital case, an
extremely persuasive demonstration of actual
innocence might warrant federal habeas cor-
pus relief if no state avenue existed in which
to process the claim. Jbid. However, before
a court ‘can consider such a claim, the peti-
tioner must meet an “extraordinarily high”
threshold. Ibid. The Supreme Court held
that Herrera had failed to meet this thresh-
old because he proffered affidavits, over
eight years after his trial, which consisted
mainly of hearsay and contained inconsisten-
cies. bid. ;

Murray’s affidavits suffer from many of
the same afflictions as Herrera’s. Even

3. Petitioner may be asserting actual innocence as
a free-standing ground for habeas relief under
Herrera. That case can be read to require that
executive clemency be sought first, as a prerequi-
site to asserting actual innocence as a ground for
habeas relief. It is not necessary.for us to decide

MURRAY v. DELO
Cite as 34 F.3d 1367 (8th Cir. 1994)

believed him, but it would have been entirely.

1375

though the affidavit from. William Murray
contains a confession to the crime, it is highly
suspect... William confessed to the crime only
after his own conviction was final. The peti-
tioner has not offered a sufficient explanation
for why his brother is willing to come forth
now and confess, rather than several years
ago, during the trial in which the petitioner’s
life was at stake. Instead, William Murray
has offered an affidavit several years after
his own brother was sentenced to death, only
after being convicted himself, and after safe-
ly receiving the lesser sentence of life in
prison without parole. The other affidavits
likewise are suspect because they are replete:
with hearsay and fail convincingly to answer
the question: why now? Moreover, these
affidavits contain significant inconsistencies.
Petitioner has failed to bring himself. within
the actual-innocence exception to the proce-
dural-bar defense.’

Murray also argues that his conviction and
death sentence violate his constitutional

rights because the prosecutor elicited testi-

mony he should have known was false and
made misleading statements to the jury
based on the same testimony. This claim, in
essence, comes down to the fact that two. of
the witnesses’ statements at trial were incon-
sistent with earlier statements to the police.
Given the inconsistencies, Murray says, the
prosecutor must have known that the wit-
nesses perjured themselves at trial; there-
fore, he committed misconduct by allowing
them to testify and by relying on their testi-
mony in his opening and closing arguments.

Again, the petitioner failed to raise this
claim in his state post-conviction proceed-
ings; therefore, we hold that this claim is
procedurally barred. We have already held.
that Murray has failed to establish the cause-
and-prejudice or actual-innocence excuses for
not raising the issue of the perjured testimo-.
ny in.an earlier proceeding. In addition, the. —

_ this issue in the present case, however, because,

even if a petitioner is not required to seek execu-
tive clemency first, the claim of actual innocence
would fail in the present case, for much the same
reasons we have given in the text for upholding
the procedural-bar defense.

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v

MURRAY v. DELO 1377

Cite as 34 F.3d 1367 (8th Cir. 1994)

due process in giving his case the proportion-
ality review required by Missouri law, Mo.

Rev.Stat. § 565.035.3 (1986). We disagree.

Both. defense and prosecution were aware
that proportionality was an issue on direct
appeal under Missouri law. Both sides were
free to argue the issuein their briefs and at
the oral argument. The Missouri Supreme

Court addressed and decided the issue in its:
opinion. The question of proportionality in-

volves a comparison with other cases, and the
issue, to be sure, is not soluble in precisely
quantifiable terms. It involves the exercise
of discretion and judgment. That is true of
many crucial issues in the law—deciding

what a reasonably prudent person would do |

in certain circumstances, for example. We
see no unfairness or deprivation of due pro-
cess in the Missouri Supreme Court’s proce-
dures for exercising.a proportionality review.
The federal Constitution of its own force, of
course, requires no such review. Pulley v.
Harris, 465. US. . 37, 104. S. ot 871, 79
L.Ed.2d-29 (1984).

Petitioner’s strongest argument is that six
venirepersons, including two who actually
served as jurors, were biased in favor of the
death penalty. The District Court held that
the record supported the Missouri Supreme

Court’s ‘conclusion that the venirepersons

could follow the trial court’s instructions and
consider both alternative punishments. We
agree.

[13-17] ‘The defendant has a constitution-
al right to an. impartial sentencing jury.
Turner v. Murray, 476 U.S. 28, 106 S.Ct.
1683, 90 L.Ed.2d 27 (1986). If a juror would
automatically impose the death penalty on a
convicted murderer, our Constitution prohib-
its that juror from participating in sentenc-
ing. Ross v. Oklahoma, 487 U.S. 81,-85, 108
S.Ct. 2278, 2276-77, 101. L.Ed.2d 80 (1988).

- The key issue is whether a juror’s support

for the death penalty would prevent him or
her from abiding by the law and following
the trial court’s instructions. . Wainwright v.
Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83
L.Ed.2d 841 (1985).. We review the entire
record, not individual responses, to deter-
mine whether a prospective juror was quali-

fied. See State v. Smith, 649 S.W.2d 417,
425-26 (Mo.), cert. denied, 464 U.S. 908, 104
S.Ct. 262; 78 L.Ed.2d 246 (1983). When a
state trial or appellate court has made a
factual finding on a claim a petitioner raises
on habeas corpus, we defer to that finding if
it is fairly supported by the record. 28
U.S.C. § 2254(d); Patton v. Yount, 467 U.S.
1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d
847 (1984); Brown v. Lockhart, 781 F.2d 654,
658 (8th Cir.1986) (citation omitted). Wheth-
er a juror is impartial is a question of fact for
this purpose. Patton v. Yount,. 467 U.S. at
1036, 104 S.Ct. at 2891.

The petitioner raised this issue in his ap- -
peal before the Missouri Supreme Court.

After reviewing the voir dire for each of the
jurors in question, that Court found that all
of the challenged venirepersons had indicat-
ed that they were able to consider both alter-
native punishments, and, therefore, the peti-
tioner’s constitutional rights were not. violat-
ed. State v. Murray, supra, 744 S.W.2d at
768-69. The Missouri Supreme Court specif-
ically found that, although the. challenged
venirepersons did at some point equivocate
about their ability to consider both death and
life in prison without parole, all also stated
they could consider both. On the basis of
this finding, the Court held that the trial

court did not abuse its discretion in refusing

to strike the venirepersons. Jd. at 769.

[18] The question is whether these factu-
al findings have fair support in the record of
the trial. First, we consider the two venire-
persons, Regina Williams and Rosetta
Brown, who actually served on the petition-
er’s jury. Each was subjected to death-
penalty questioning by both the prosecution
and defense counsel.

When Williams was first questioned by the
defense about her position on the death pen-
alty, the following colloquy occurred:

Defense: “Tell me what your position is on
[the possibility that life without parole
would be a severe enough punishment : for
premeditated murder].”

Williams: “I believe that if you are con-
victed of first degree murder that you
‘should get the death penalty.”

1378 34 FEDERAL REPORTER, 3d SERIES

Defense: “Okay. And life without parole
would be—would not be a possible punish-
ment in your’ consideration for premeditat-
ed, deliberate murder?”

Williams: “No.”

T.Tr. 264. Later, the prosecuting attorney
explained to the panel that, under the law,
two punishments were to be considered, and
stressed the importance of following the law.
After he had done so, he asked the entire
panel if they could “be open-minded jurors”
and consider both punishments before mak-
ing a capital-punishment “decision.”

Williams joined the panel in responding yes

to his question. T. Tr. 275.

Later, after the trial court had considered
and rejected defense counsel’s motion to
strike Williams as a juror, Williams respond-
ed to questions from the trial court:

The Court: “All right. And I am going to
ask the second half. of that question. Or
would you, because you have found—if you
find murder one, would you automatically
assess the death penalty without regard to
listening to the aggravating or = ere
circumstances?”

Williams: “I would consider both.”

T.Tr. 302-03. She responded the same way
when asked as part of the panel:

The Court: “All right. Now yesterday it
was said several times, and I want you to
look into your hearts and souls when I ask
you this question..... Sometimes people
. filf I ask them some questions feel
they are giving me an answer they think I
want to hear. Okay. You all know what.I
mean by that?. We don’t want that. Look
into your hearts and minds again. Will
you consider, if we get that far, both penal-
ties involved? Okay?” —
Panel: “Yes.”
The Court: “No matter what you said
before, I mean, these lawyers are entitled
to know, and this defendant is entitled to
‘know. Will you consider both, if we get
that far? Yes?”
Panel: “Yes.”

The Court: “Anybody who would not?
And we are not going to try to convince
you otherwise. It’s just a simple yes or
no.”

Panel “Yes.”

The Court: “I have etn 3 word on
that?” ;

Panel: . “Yes;:”
T. Tr. 303-04.

Rosetta Brown’s voir dire followed a simi- -

lar pattern. When questioned by the prose-
cution, she indicated support for the death
penalty, but indicated that she could consider
both sentencing options. T. Tr. 234-35.

Later, in response to questions by defense
counsel, she stated that she favored the
death penalty and would impose it in a first-
degree case. T. Tr. 259-60. Then, Brown
responded to the trial court’s panel questions
in a manner identical to Williams. T. Tr.
303-04.

. The Missouri Supreme Court. specifically
found, on the basis of the above questions
and answers, that these jurors were capable
of ‘applying Missouri law and sentencing the
defendant in accordance with the Constitu-
tion. After reviewing the transcripts our-
selves, we hold that this finding has fair
support in the record, and we therefore defer
to it. Although both of these jurors stated at
some point during voir dire that they could
consider only the death penalty, both of them
also stated that they could consider the full
range of punishment. Then, after being re-
minded of the law by the trial court, both
jurors affirmatively replied that they could
apply the law and consider both punish-
ments. They repeated this assurance to the
trial court in response to several questions
designed to confirm their ability to serve as
unbiased jurors. We agree with the District
Court with respect to these two jurors.

[19] Murray also raises questions about
four other venirepersons, Victoria Alsup,
David Fischer, Carolyn Artega, and Elbert
Witte. He argues that because the Court
rejected his attempt to remove these jurors
for cause, he had to use peremptory strikes
to remove them. This use of his peremptory
strikes, he argues, violated his right, under
the then-applicable state statute, to have a
full panel of qualified potential jurors before
the use of peremptory challenges. Mo.Rev:
Stat. § 546.180.3 (1986), repealed and Tre-

—_— <..

MURRAY v. DELO 987
Cite as 767 F.Supp. 975 (E.D.Mo. 1991)

Petitioner asserts that this erroneous ex-
clusion created an impression in the minds
of the jurors that petitioner had been aban-

doned by his family or was dangerous. |

[24] The exclusion of witnesses in Mis-
souri courts is a matter within the sound
discretion of the trial judge. State v. Dae-
gele, 302 S.W.2d 20, 24 (Mo.1957). The
Court notes that members of petitioner’s
family were endorsed as witnesses for the
penalty phase of the trial and testified at
that phase. Thus, the Court finds that the
trial judge’s exercise of discretion in ex-
cluding petitioner’s family members did not
render petitioner’s trial fundamentally un-
fair.

[25] In both grounds 6 and 20, petition-
er alleges that the trial court erred in fail-
ing to exclude photographs depicting the
bodies of the murder victims. Petitioner
contends that these photographs inflamed
the passions of the jury and caused peti-
tioner to be convicted on an improper basis.
Additionally, petitioner contends that the
probative value of the photographs was
greatly outweighed by their prejudicial ef-
fect.

[26] Petitioner must demonstrate that
the court’s error in allowing the photo-
graphs was of such significance that the
trial was fatally infected. See Redding v.
Minnesota, 881 F.2d 575, 579 (8th Cir.
1989), cert. denied, US. , 110 S.Ct.
1158, 107 L.Ed.2d 1061 (1990). Photo-
graphs generally are admissible if relevant
to a material issue in the case. State v.
Daugherty, 631 S.W.2d 637, 641 (Mo.1982).

The photographs admitted were relevant
as to the issue of deliberation which the
state was required to prove under the
crimes charged in the indictment. The au-
topsy photographs also reveal the extent of
the victims’ wounds and were described by
oral testimony. Thus, these photographs
had substantial probative value and aided
the jury in analyzing the evidence. Accord-
ingly, the Court finds that the photographs
did not fatally infect petitioner’s trial.

Petitioner’s next contention is that the
trial court improperly permitted the state
to bolster statements made by witnesses

Claudia Hennings and Gladys Nutall. Offi-
cer Planthold testified as to statements
made by Hennings. Nutall was allowed to
testify that she was certain that petitioner
had raped her.

Again, petitioner must demonstrate that
the trial court’s alleged error fatally infect-
ed his trial. Redding, 881 F.2d at 579.

[27] Officer Planthold testified that
Hennings told him that Hennings’ friend
had been raped, the location of the crime
scene, and the names and descriptions of
two of the assailants, including petitioner.
This testimony was offered to explain the
officer’s actions in reporting to the scene of
the crime. The officer did not testify as to
details of the crime related to him by Hen-
nings. The Court finds no error in allow-
ing this testimony by Officer Planthold.
Similarly, the Court does not find it improp-
er to allow Nutall to testify as to her
certainty of the identification of petitioner.
Thus, the testimony of Officer Planthold
did not fatally infect petitioner’s trial.

[28] Petitioner next objects to the defi-
nition of ‘reasonable doubt” and the expla-
nation of the government’s burden of proof
given to the jury. The instruction given to
the jury defining “reasonable doubt’ is
from MAI-CR2d 2.20 and reads in perti-
nent part as follows:

A reasonable doubt is a doubt based
upon reason and common sense after
careful and impartial consideration of all
the evidence in the case.

Proof beyond a reasonable doubt is
proof that leaves you firmly convinced of
the defendant’s guilt. The law does not
require proof that overcomes every pos-
sible doubt. If, after your consideration

of all the evidence, you are firmly con- |

vinced that the defendant is guilty of the
crime charged, you will find him guilty.
If you are not so convinced, you must
give him the benefit of the doubt and
find him not guilty.
Petitioner contends that this instruction
fails to impart upon the jurors the full
gravity of their duty. See In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970). Specifically, petitioner objects to

€

MURRAY v. DELO 985
Cite as 767 F.Supp. 975 (E.D.Mo. 1991)

and that [petitioner’s] actions were in
callous disregard for the sanctity of hu-
man life, State v. Griffin, 756 S.W.2d
475, 489-90 (Mo. bane 1988), and under
these circumstances the depravity of
mind instruction is not unconstitutionally
vague. Jones v. State, 767 S.W.2d 41, 45
(Mo. bance 1989).

Murray v. State, 775 8.W.2d at 92; see
also Mercer v. Armontrout, 864 F.2d 1429,
1485 (8th Cir.1988) (stating that a similar
instruction did not undermine the accuracy
of the sentencing determination). Even if
the instruction was in error, the jury found
two additional aggravating circumstances,
apart from the alleged erroneous one.

Upon careful consideration of the record,
the Court finds that trial counsel was not
ineffective in failing to object to the chal-
lenged aggravating circumstance presented
to the jury. The record reflects sufficient
evidence for the jury to believe that the
victims suffered both physical and psycho-
logical torture. Thus, the aggravating cir-
cumstance referring to depravity of mind
was properly submitted in this case. See
Smith v. Armontrout, 888 F.2d 530, 538-
39 (8th Cir.1989). Again, since the Court
finds trial counsel’s performance was not
deficient, the Court will not address the
prejudice prong of the Strickland test.

Petitioner’s next two claims allege that
the trial court erred in failing to remove
for cause twelve venirepersons, and in sus-
taining the state’s motion to strike for
cause two venirepersons. Specifically, peti-
tioner alleges that the trial court failed to
strike for cause venirepersons Carolyn
Artega, number 32; Lillian Nicolai, number
252; Victoria Alsup, number 25; David
Fisher, number 142; Elizabeth Formenti,
number 153; Elbert White, number 389;
Norma Munsell, number 231; Eve Ebert,
number 88; Roselta Brown, number 330;
Robert Bianco, number 46; Frank Landish,
number 200; and Richard Pelleguini, num-
ber 277. Petitioner contends that the
above-mentioned venirepersons indicated
that they would impose the death penalty if
the state proved petitioner guilty of murder
first-degree, with the state having to prove
aggravating circumstances. Petitioner
also asserts that venirepersons Lee Evans,

number 112, and Sam Allen, number 128,
were wrongly struck for cause when they
indicated that, despite the fact that they
could impose the death penalty, they did
not think it appropriate under all the cir-
cumstances.

[17,18] The standard for determining
when a prospective juror may be excluded
for cause is “whether the juror’s views
would ‘prevent or substantially impair the
performance of his duties as a juror in
accordance with his instructions and
oath.’” Wainwright v. Witt, 469 U.S. 412,
424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841
(1985) (citing Witherspoon v. Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968)). This standard does not require
that a juror’s bias be proved with “unmis-
takable clarity.” Jd. Despite an ambigu-
ous record, “there will be situations where
the trial judge is left with the definite
impression that a prospective juror would
be unable to faithfully and impartially ap-
ply the law.... [DJeference must be paid
to the trial judge who sees and hears the
juror.” Id. at 425-26, 105 S.Ct. at 853.
Retention of a single juror in violation of
this standard requires a reversal of the
imposition of the death penalty. Davis v.
Georgia, 429 U.S. 122, 128, 97 S.Ct. 399,
400, 50 L.Ed.2d 339 (1976). The qualifica-
tions of a prospective juror are determined
based on the entire voir dire examination.
State v. Smith, 649 S.W.2d 417, 425-26
(Mo. banc), cert. denied, 464 U.S. 908, 104
S.Ct. 262, 78 L.Ed.2d 246 (1983).

Initially, the record reflects that venire-
person Bianco was stricken for cause at
petitioner’s request. Moreover, venireper-
sons Nicolai, Formenti, Landish, and Pelle-
guini did not serve on the jury and were
not removed by a peremptory challenge of
the petitioner. Thus, any error by the trial
court could not have impacted petitioner.

[19] With respect to venireperson
Ebert, the trial transcript reveals the fol-
lowing discourse between Ms. Ebert and
the prosecuting attorney:

Mr. Worzycki: Okay. How do you feel
about the death penalty?

986 767 FEDERAL SUPPLEMENT

Juror No. 88: I think it’s necessary for
certain crimes.

Mr. Worzycki: ... [C]an you consider
giving him life with no parole, and also
can you consider giving him the death
penalty?

Juror No. 88: Yes.

Mr. Worzycki: Okay. By considering
it, can you, with the other eleven jurors,
sign a verdict either of life with no parole
or death?

Juror No. 88: Yes.

Mr. Worzycki: Okay. Thank you.

When pressed by defense counsel on her
feeling about the death penalty, Ms. Ebert
stated she thought a juror should consider
both options. Based on this record, the
Supreme Court of Missouri found that veni-
reperson Ebert “unequivocally stated that
[she] could consider both death and life
sentences.” State v. Murray, 744 S.W.2d
at 768-69.

[20] With respect to venirepersons
Artega, Alsup, Fisher, White, Munsell, and
Brown, the Supreme Court of Missouri
found the following:

All the other ... challenged venireper-
sons initially stated that they could con-
sider the full range of punishment. Un-
der examination by defense counsel, how-
ever, each of the eleven at least arguably
retreated from their earlier stand. Some
of these venirepersons directly stated to
defense counsel that they could consider
only the death penalty. In the case of
one of these eleven venirepersons, the
defense counsel, seeking to resolve the
inconsistency in the responses, reiterated
that the jury would be instructed that
the penalty for first-degree murder was
either death or life imprisonment. After
being reminded of the law the jury was
required to follow, this venireperson stat-
ed that she would be able to consider
both alternative punishments. In the
cases of the other ten venirepersons at
issue here, the court, recognizing that
their answers were inconsistent, and that
they were becoming confused, broke into
the questioning and explained as impar-
tially as possible the duty the jurors
would have to follow the court’s instruc-

tions and to consider both the alternative
punishments provided for first-degree
murder. The court then asked the veni-
repersons if they could follow the in-
structions in this case and consider both
alternative punishments. Each of the
ten venirepersons said he or she could.

State v. Murray, 744 S.W.2d at 769. The
record supports this factual determination.

Based on the entire voir dire examina-
tion, the Court finds that the trial court did
not err in failing to remove the above-
named venirepersons.

[21] Venirepersons Evans and Allen
were struck for cause. The Supreme Court
of Missouri found that, although Evans and
Allen initially were equivocal about wheth-
er they could consider both life and death
sentences, each finally answered that he
could not consider the death penalty. Jd.
at 768. The Supreme Court determined
that the trial court was warranted in rely-
ing on the venirepersons’ final answers.
Id. This Court agrees and finds that the
exclusion of Allen and Evans for cause was
permissible because each indicated an ina-
bility to follow the law.

Next, in ground 4 of his petition, petition-
er alleges that the trial court failed to
suppress unconstitutionally obtained evi-
dence. This ground was presented in state
court as a fourth amendment claim and will
be addressed on that basis.

[22] A state prisoner may not be grant-
ed federal habeas corpus relief on a claim
that evidence presented at trial was ob-
tained in violation of the fourth amendment
where the state has provided the prisoner
with a full and fair hearing on the claim.
Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct.
3037, 3052, 49 L.Ed.2d 1067 (1976). The
state provided petitioner an opportunity to
litigate his fourth amendment claim. The
petitioner filed a motion to suppress which
was denied after a hearing. Accordingly,
petitioner’s fourth ground for habeas relief
will be denied.

[23] In ground 5, petitioner alleges that
the trial court erred in excluding members
of petitioner’s family, even though they
were not witnesses at petitioner’s trial.

ee RT eee eng a

‘

988

the language “firmly convinced” and

“doubt based upon reason and common >

sense” contained in the instruction.

The Court notes that a similar instruc-
tion, using the language “firmly con-
vinced,” has been approved by the federal
courts. See United States v. Hunt, 794
F.2d 1095, 1100-01 (5th Cir.1986). In addi-
tion, this Court regularly uses an instruc-
tion defining “‘reasonable doubt” as “doubt
based on reason and common sense.” See
K. Devitt & C. Blackmar, Federal Jury
Practice and Instructions, § 11.14 (2d ed.
1977). Accordingly, the Court concludes
that the trial court stated the law accurate-
ly and petitioner’s trial was not made fun-
damentally unfair.

[29] Next, petitioner argues that the
trial court improperly permitted the state
to make an opening statement during the
penalty phase of the trial when the state
presented no evidence at this stage of the
trial.

The trial court has broad discretion re-
garding the scope and manner of opening
statements. Due to the bifurcated nature
of the murder trial, the state had already
presented evidence to the jury during the
guilt phase of the trial. The prosecutor’s
opening statement during the penalty
phase merely summarized for the jury the
evidence it had already heard and how that
evidence related to the penalty phase. To
adopt the argument advanced by petitioner
would result in much unnecessary repeti-
tion of testimony by the state’s witnesses.
The Court fails to see how allowing the
state an opening argument at this stage of
the trial rendered petitioner’s trial funda-
mentally unfair.

[30] Finally, petitioner contends that
the trial court erred in refusing his request
for a jury instruction on conventional sec-
ond-degree murder. Petitioner alleges that
this instruction was supported by the evi-
dence and should have been given as a
lesser included offense. The jury was in-
structed on felony murder. However, peti-
tioner alleges that the evidence in the case
did not compel an inference of deliberation
and that a second-degree murder instruc-
tion also should have been given.

a
767 FEDERAL SUPPLEMENT

[31] The trier of fact in a capital mur-
der case must be allowed to consider lesser
included offenses supported by the evi-
dence. Beck v. Alabama, 447 U.S. 625, 100
S.Ct. 2382, 65 L.Ed.2d 392 (1980). Respon-
dent contends that a conventional second-
degree murder instruction was not sup-
ported by the evidence.

With respect to this issue, the Supreme
Court of Missouri found as follows:

In this case, the evidence was that
after the [petitioner] and two accomplices
robbed Jackson, Stewart, Claudia Hen-
nings, and Gladys Nutall, they bound and
gagged Jackson and Stewart, placed
them on their knees, and then beat the
two men while demanding more. Knives
were repeatedly stabbed into the floor
near the men to further frighten them.
Then, after Hennings escaped out the
window, Nutall saw the defendant hold
Stewart up and shoot him in the back.
When police arrived on the scene Jackson
and Stewart were found dead of bullet

* wounds caused by bullets fired from the
Same weapon. At trial, the [petitioner’s]
only defense was that it was not him but
rather one of his accomplices that shot
the men. He did not try to prove that
the murders did not take place or that
they took place in a manner different
from that testified to by Hennings and
Nutall. He did not even deny his pres-
ence at the apartment. He tried only to
throw doubt on the accuracy of Nutall’s
identification of him as the killer.

The [petitioner] contends that this evi-
dence supports the submission of a sec-
ond degree murder instruction because it
permits a jury to find that the [petition-
er] and his accomplices reacted to Hen-
nings’ escape with panic and shot Jack-
son and Stewart in reflex rather than
after deliberation. There is no evidence
to support this theory and it is belied by
Nutall’s testimony that the [petitioner]
held Stewart up before shooting him in
the back. Such testimony is consistent
only with the killer holding Stewart
steady while deliberately aiming his
weapon for a death shot. Also, the evi-

nied the petition filed by Odom’s attor-
ney’s who apparently questioned the
justice of the verdict, which had re-
quired only 40 minutes of deliberation
by the jury.

In his opinion, the judge said: “.. . In
view of the heinousness of ‘the
crime and the fact that there was no real
issue before the jury other than the
issue of what was the proper punish-
ment to assess, forty minutes of deliber-
ation certainly as sufficient time to fully
discuss the evidence and arrive at a con-
clusion.”

Judge Gibson’s decision was sub-
sequently affirmed by the United States
Court of Appeals, Eighth Circuit. And
on March 5, 1964, United States Sup-
reme Court Justice Byron White de-
clined to intervene in behalf of the con-
demned man.

That, too, was the position taken by
the Governor of Missouri, and at 4:00
o’clock on the afternoon of March 5,
1964, Charlie Odom ate his last meal.
The last person to visit him that after-
noon was a Springfield, Missouri minis-
ter, who left Charlie’s cell shaking his
head. To reporters he said:

“Charles wasn’t sure his time is up
yet. He thinks he may have a stay com-
ing. He kept saying he wasn’t guilty.”

I. the holding room outside the
execution chamber, the warden read the
order of execution to Odom, then asked
the condemned man if he had anything
. to say.

“I think I could do all right if I had
another chance,” Odom replied, echoing

the statement he had made, success-

fully, to several parole boards.

The warden ordered the blindfold
placed over Odom’s eyes. He was led
into the gas chamber and firmly strap-
ped into the steel seat by guards. The
warden checked the straps, and again
he asked Odom if he had any last words.

“Tm innocent,” Odom answered. Be-
neath the blindfold he had a half-smile
on his face. /

The doors of the gas chamber were
shut, the signal was given, and at 12:01
a lever was pulled which dropped deadly
cyanide pellets into the bucket of acid
under the seat on which the prisoner
sat. Moments later, Charles Harvey
Odom was pronounced dead.

For the first time since Odom had set
out on his long career of crime, society
could be sure he would claim no further
victims. There is no parole from the gas
chamber. ooo

| for public nterest in: the ino iy. 0f
| this person. ee

50 Master Detective

The Killer Wanted
Protection of Law

(Continued from page 15)

tion, and the assistant state’s attorney
for Montgomery County, John Duncan,
with Detective Forsythe, visited Assis-
tant United States Attorney Alan
Strasser to apply for search warrants
and medical records from the VA Hospi-
tal. Mr. Strasser’s applications on be-
half of Mr. Duncan and Det. Forsythe
were approved by Judge John Hess of
the D.C. Superior Court, and as a result
police searched the home where Hughes
lived.

There they found several types of
ammunition, several handguns, a gun
cleaning kit, four tubes of toothache
medicine and several knit hats—in
short, replacement items which corres-
ponded closely to those found inside the
shoulder purse left at the scene of the
shooting.

Warrants were also served on the re-
cords administrator at the Veterans
Hospital for Hughes’ medical data,
X-rays and clothing. While at the D.C.
jail infirmary, blood and hair samples
from Hughes were also seized.

But the physical evidence that the
police and Mr. Duncan wanted the
most—the bullets lodged inside Jackie
Hughes’ chest—they still could not get.
If they could get those bullets for mak-
ing a ballistics comparison with
Richard Edwards’ gun, they could prove
conclusively whether or not Jackie
Hughes had been shot by Edwards dur-
ing the holdup.

On March 16, 1981, Judge Hess heard
a motion presented by Asst. U.S. Attor-
ney Strasser that Hughes be ordered to
undergo surgery to recover the bullets.
At the hearing Dr. David L. Berry,
Chief Resident of the Georgetown Ser-
vice of the D.C. General Hospital, tes-
tified that the removal of the bullets
would present only a minimal health
risk for the patient, Jackie Hughes.
Though the motion was opposed by
Hughes’ attorney, Judge Hess sided
with Mr, Strasser and his Montgomery
County counterpart. Hughes was to
undergo surgery for removal of the bul-
lets March 18th.

But the following day the United
States District Court delayed administ-
ration of the surgery pending the court’s
review of the defense appeal. Without
granting a hearing, the appeal was de-
nied several days later.

Hughes’ attorneys pursued it further,
however. They obtained another stay

- from the United States Court of Appeals

pending review of their briefs. But
again, the appeal to have Judge Hess’
order vacated for Hughes to undergo
surgery was denied, and another date
for surgery was set.

The next and final step was the Un-
ited States Supreme Court. Perhaps the
nine justices would rule on the matter
once and for all and decide that going
inside a man’s body to execute a search
and seizure warrant was, in fact, going
too far. That at least was the hope of
Jackie Hughes and the attorney who
represented him.

Although the stay was granted pend-
ing the justices’ preliminary review, the
defendant and his counselors were dis-
appointed. The justices simply refused
to hear arguments on the matter, and
without any reversals by higher courts,
Judge Hess’ order remained in effect..

April 2, 1981, one month to the day
that Richard Edwards was shot, Jackie
Hughes underwent surgery to recover
the bullets inside his chest. The projec-
tiles that were recovered were de-
formed, copper-jacketed .25 caliber
slugs. They had varied weights of 50.1,
50.3 and 49.8 grains. They were turned
over to a ballistics examiner of the
Bureau of Alcohol, Tobacco and
Firearms.

April 3, 1981 a former ballistics and
toolmark examiner for the New York
City Police Department, Alfred C.
Johnson, received several bags of evi-
dence from the Montgomery County
Police Department along with a request
that he give their contents his im-
mediate attention. The bags contained a

..29 caliber Browning semi-automatic,

three .25 caliber bullets and five .25
caliber shells, The five shells had been
taken from the scene. In addition, there
were the slugs from Jackie Hughes.

Johnson’s job: to see if there was a
match between the slugs from Hughes
and the shells from the Browning
semi-automatic.

The state was not taking any chances.
If for some reason deformities in the
slugs made it impossible to make a posi-
tive match, they hoped and prepared for
the possibility of making a case on the
basis of additional evidence. Except for
the eyewitness accounts, there was not
that much additional evidence to use,
and the reliability of witnesses’
memories can never be guaranteed.

Under certain circumstances, how-
ever, memories can be enhanced. Lt.
James Roby, formerly of the Montgom-

‘ery County Police Crimes Against Per-

son Section and now in uniform as a
commander of the Bethesda district, is a
leading forensic hypnotist and he inter-
viewed the three eyewitnesses to the
shooting on Wisconsin Avenue. As a re-
sult of these interviews, the eyewitness
accounts improved.

But the legal hurdles still had not
been cleared. Defense Attorney Victor
Crawford, a Maryland State Senator
when he is not representing clients,
challenged the admissibility of the

a eames Yo [/ 9 709

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by BILL KELLY

he call placed to the
; Kansas City Police De-
partment and recorded

on a report pad, was from
Karen Keeton’s mothér. De-
tective Bob Borchers in-
formed the woman that “nor-
mally we do not accept a
report until the person had
been missing for 24 hours.”
But under the circumstances
he agreed to compile the
facts, which eventually were
sent out to other law en-
forcement agencies in the
state, including Cass Coun-

As Detective Borchers was jotting
down the information on the missing
22-year-old shapely blonde, her moth-
er suddenly said, “I guess there is some-
thing I ought to tell you. I know when
you start asking questions around town,
somebody is going to tell you.” She
gave the officer the name of a man
Karen had been dating for over a
year. “But recently she had been dat-

ing several men on the side,” she.
said.

Using the deatiptod of the beauti-
ful, young blonde, Borchers and some

other detectives began inquiries in the’
area. The first person they spoke with .

was Johnny Coppolino, the boyfriend.
Adroitly, Detective Borchers began to
quiz Coppolino about Karen’s sudden
disappearance.

As soon as Coppolino became at-
tuned to the line of questioning, he
blurted out: “Man, I’m really glad
you contacted me. I’ve really been .wor-
ried about Karen because I don’t think
she’d have left town without telling me.
We were that close.”

Coppolino told Det. Borchers that the.
last time he saw Karen was on the
evening of August 29th, but she never
said, anything about going away for a
few days. '

“She kissed me goodbye, very sweet- °

ly, and her last words to me were,
‘Don’t be late tomorrow, honey,’” Cop-
polino continued.

When she failed to show up for
their date, and failed to answer repeated
telephone calls, Coppolino said he
dropped by her apartment to see what

Karen Keeton, beautiful victim.
was wrong. Karen’s pet dog, Nugget,

was tied to a tree in the backyard,
with no food or water.

“That’s when I really became wor-
ried. Karen would never leave her
dog tied up without food or water.
Whenever she goes out of town she
always takes Nugget with her.”

They dumped the young woman's body in a
ravine, covered with a sheet. Halfway down,
the sheet came loose and blew away

in the

wind. Karen lay naked at the bottom of the
canyon, in a makeshift grave unfit for a dog.

ia di i en ne en

Happy Birthday, Dear Rape Slayer

(continued from page 51)

Yes.”

‘‘Why didn’t you tell him she had no
pulse?”

‘| didn’t know what to expect. | hadn’t
seen this man like this before.”’

Campbell told of returning to the house
after he and Mercer had dumped the
body. He said he slept an hour before
awakening and having a cup of coffee.

On cross-examination, Campbell tes-
tified that he delayed telling anyone his
story until after several relatives had re-
located away from the Kansas City area.
He also testified that he was approached
three times by Kansas City police but said
he told them he had no knowledge of the
murder.

He testified of contacting Willens, an
attorney he had known previously. After
Willens had taken a deposition, he led
him to the body. Then Willens had
notified the authorities.

At the conclusion of the preliminary
hearing, Judge Whitcraft ordered both
Mercer and Gardner bound over for trial.

Later, they were arraigned and bond
was set at $100,000. In lieu of the bond,
they were incarcerated in the Cass
County jail.

Through much delay due to con-
tinuances and hearings on technicalities,
it was almost a year before Mercer came
to trial on the Keaton murder charge.
Meantime, Mercer's attorneys had the
trial moved to Springfield, in Greene
County, Missouri, because of too much
pretrial publicity.

A week before he was to go on trial in
the Keaton murder case, Mercer was put
on trial before Judge James H. Keet in the
Greene County Circuit Court on the rape
of the 17-year-old girl. Italso was there on
a change of venue from Cass County. He
was convicted and sentenced to 30 years.
Three others had also been tried and con-
victed in the same case. They were given
20-year sentences.

Mercer’s trial would be the first capital
murder trial in Greene County in which
the prosecution asked for the death pen-
alty under Missouri's capital punishment
law that went into effect in 1978.

On Monday, 10 October 1979, the
Keaton murder trial began in the court-
house annex because there was no court-
room in the courthouse large enough.to
accommodate the 122 prospective jurors
while they were being questioned and
selected for duty in the trial. After the
jury was selected, then Circuit Judge
John Crow would move the trial into the
courtroom.

In a hearing away from the potential
jurors, Judge Crow overruled a motion to

suppress evidence seized during an inves-
tigation of the murder.

It took three days to select a jury of
nine women and three men and one alter-
nate, finishing up on Wednesday with tes-
timony scheduled to begin at 9 a.m. on
Thursday.

The key prosecution testimony came
on Thursday when Campbell told the
court he watched as Mercer strangled
Ms. Keaton after Mercer and two other
men had raped her.

Early on Friday, Roberta Dawn
Mercer testified that she was at home on
the night of August 30 and that her father
came home with some friends and a
‘blonde lady.’* She said she remembered
no disturbances in the house that night.

Mercer took the stand in his own de-

‘fense, denying all charges. After he

finished, his attorney called Officer
Charles Pottinger, a Kansas City police
officer, to the stand. Pottinger was for-
merly an evidence technician who
gathered and labeled evidence at the
scenes of crimes. He testified Ms.
Keaton’s body was mummified and could
not have been left in a wooded area for a
month as it reportedly was.

At Lozano’s request, Pottinger said he
visited the site where the body was found
and determined that the body would not
have been mummified if it had decom-
posed for a month in an open area where it
would have been vulnerable to insects
and carniverous animals.

He testified that the only mummified
bodies he had seen were found in closed
off, dry areas.

The defense also called Campbell's
ex-wife, Claudia, and questioned her
about his mental and physical health in an
effort to discredit his testimony. Defense
Attorney Nicholas Fiorrella tried to ask
her several times if Campbell was known
to lie, but Judge Crow upheld Hamilton’s
objections to Fiorrella’s questions.

After the defense rested its case gn Fri-
day afternoon the state called Springfield
physician Paul F. Quinn, director of clini-
cal laboratoires at Cox Medical Center.

“Quinn told the jurors he had examined
photographs of Miss Keaton’s body ear-
lier Friday to try to determine whether it
could have been left there fora month. He
said the dryness in this region of the Un-
ited States and the warm days and cool
nights of early autumn could have caused
the body to mummify.

Prior to final trial arguments, defense
attorney Lozano resquested that mem-
bers of the victim's family he barred trom
the courtroom. The request was made
after Ms. Keaton’s sister, Linda Wooten,

had tears flowing from h.
court proceedings Thursd:
denied the request, warni:
tending not to distract the

On Saturday, after de
nearly three hours, the ji
guilty verdict. All of the ju
in the affirmative when p
ally whether they voted \,
capital murder.

Upon hearing the pi
Lozano asked the jury fo:
commendation of life in
hopes that the real killer «

Two phases of jury pr¢
used under the 1978
changes. After the week
ceedings, the jury was fi:
liberate if Mercer was inn
of one of three charges —
murder in the second a
slaughter.

In the second phase of t!:
the jury was asked to rm
death sentence or life imp
no parole allowed for 50

After further arguments
on both sides, the jury rec
death penalty for Ge
Mercer.

Meanwhile, Mercer, ¢
blue jeans and a red, whi
sweater, showed little
either the guilty verdict o:
sentence was announced
with friends while waitin
tence recommendation.

Looking at his shackle
laughed while smoking
said, *‘This is what they
keep them from chasing «

The mother of the 22-ye
Mrs. Helen Cotter, of th
area — said she was pk
court ruling.

‘We are pleased with
was just a horrible thing |
to. her’

eyes during
Judge Crow
all those at-

urors.

berating for
y returned a
rs responded
led individu-
cer guilty of

\y verdict,
sentence re-
isonment in
id be found.
‘edings were
ssouri law
ng trial pro-
asked to de-
ent or guilty
ital murder,
ee or man-

leliberation,
mmend the
onment with
IPSs

mm attorneys
imended the
eo" Tiny,’

sed in tight
ind blue ski
otion when
-ommended
fe did joke
for the sen-

cet, Mercer
arettes and
(on dogs to

id victim —
sansas City
‘d with the

We think it
Mercer) did

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Happy Birthday, Dear Rape Slayer

(continued from page 17)

Mercer directed Campbell to
n where the body was dumped.
return trip to Belton, Mercer
! had killed that last bitch, |
ye in the trouble I’m in.”
ng the night Karen Keaton dis-

an extensive search for the
man was carried out by police
sas City area. About a month
isappeared, a reward of $1,000
| for information leading to her
its. But the investigation was
m by then — no one had found
ind the people who knew what
ned were not talking.
detectives joined with their
rts from Kansas City in an
ovestigation. Among the urban
assigned to the night-and-day

re Capt. Richard Mckiddy,

Wilson, and Detectives Roger
imes Martin, Thomas Marquis
ve Reed.

: week, the homicide detectives -

ce had learned a lot.
estioning friends, relatives and
s of the Blue Seven Lounge.
fitted pieces of information to-
\il they thought they knew what
place that night.
investigators didn’t have wit-
10 would talk or physical evi-
even get past the preliminary

“ICAN
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Come s«
knowles

log is pi
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one Cal
they car
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THE ‘

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Meantime, on
22-year-old Beau G. Appleton was ar-
rested and charged in connection with the
arson killings. Appleton, although, not a
biker, was a close friend and ran with
several of the Missing Links.

Then on September 29, the Keaton
case began to break. Sidney Willens, a
Kansas City attorney, was contacted by
Campbell, who said he ‘‘wanted to spill
his guts about the Keaton killing.’ He
claimed he knew everything.

He related to Willens all the bizarre
events that took place in the Mercer home
in Belton.

“After taking the statment,’ Willens
told the news media, ‘‘I said, ‘You could
be an accessory, of course.’ He said he
knew. He had tears in his eyes. He just
wanted to tell the story. I said, ‘Let’s go
find that body.’

**We drove all over the countryside just
trying to find it. It was nighttime (when it
was dumped) and he remembered it was
near a metal bridge.

‘So we stopped a highway road crew
and I went up to this.man and identified
myself and said ‘Will you help us find a
dead body?’ Of course, it startled him.
We put a yellow pad over my car and in
the bright sunshine of the day, John ex-
plained where he thought it was and the
highway roadman directed us to the
bridge.

“Tl went there and saw the decomposed
body, photographed it two or three times
and returned home and said, ‘Ow, what
have I got into?’ ~

It was a perplexing situation for Attor-
ney Willens for two reasons: Profession-
ally, he had an obligation to protect his
client from physical harm and prosecu-
tion. Nevertheless, he also had a moral
obligation to report the body and bring an
end to the anxiety of the victim’s family.

Calling the police, Willens gave them
directions on locating the body. Then he
telephoned Ralph Martin, prosecutor for
Jackson County, Mo. and requested pro-
tection for John Campbell.

‘There is no way, Sid,’’ Martin re-
sponded. ‘‘The crime was committed in
Belton. This puts it out of Jackson
County jurisdiction. Try the Feds, they
have a witness protection plan.”

But in this case federal authorities
could offer no witness protection. There
was nothing to tie the case in to any gov-
ernment obligation to protect Campbell.

Joseph A. Hamilton was the Cass
County prosecuting attorney and was a
complete stranger to Willens. He had no
idea what Hamilton’s reaction would be
toward giving protection to Campbell and

September 8, ,

no prosecution in exchange for his tes-
timony against Mercer.

Unlike many lawyers, Willens made
Campbell’s protection his own concern.
He dug into his own pocket for air fare to
get his client out of town for awhile. After
he talked with Hamilton, he felt that
Hamilton was satisfied to use his client’s
testimony to prosecute Mercer without
bringing charges against Campbell.

During this period of time, the inves-
tigators in the Keaton homicide case were
unaware of the drama being played out
behind the scenes with a prominent wit-
ness ‘to the murder.

Near a desolate, little-used bridge in
rural Kansas, the nude, decomposed
body of a woman had been found where
Willens had directed the police. It was
lying uncovered less than nine feet froma
barbed wire fence paralleling State Line.
The body would not be positively iden-
tified until dental charts were studied.

Three hours after the body was lo-
cated, Gardner was arrested at the D. T.
Lounge in downtown Lenexa by Lenexa
and Kansas City homicide detectives.
Gardner resisted arrest, and received
minor head injuries in the scuffle. He was
held in the Johnson County jail for ques-_
tioning.

Gardner had been a one-time employee
at the Blue Seven Lounge where Ms.
Keaton worked and where she was last
seen. Although Ms. Keaton already had a
boyfriend, Gardner was trying to beat his
time.

In the early morning hours of August
30, Gardner told his interrogators he and
Ms. Keaton ate breakfast at Sambo’s
Restaurant after leaving the Blue Seven.
Later the couple bought a six-pack of
beer, drank it in the Blue Seven parking
lot, then separated, Ms. Keaton climbing
into her own car.

However, investigating detectives
were told another version of the Keaton
disappearance by persons who were at a
private party on September 2 at the Blue
Seven Lounge. A man — whose identity
they wouldn't reveal — was overheard
saying that on the night of August 29, he
and Ms. Keaton had joined several mem-
bers of the motorcycle gang where she
was offered sexually, perhaps as an initia-
tion rite.

For reasons still unclear, the young
woman was slain and her body dumped
*‘somewhere in Kansas,”’ according to
the man at the party. He said he ‘‘had to
get something off his chest.’’

Police sources said polygraph tests had
been administered to several persons tied
to the disappearance, although the results
would not be released because they might
damage future prosecution.

Dr. James Bridgens, Johnson County
coroner who performed the autopsy, in-
formed the news media that the body’s

(continued on page 51)

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Happy Birthday,
Dear Rape Slayer

(continued from page 48)

decomposition prevented him from de-
termining what caused Mrs. Keaton’s
death or whether she had been sexually
assaulted.

“It (the body) was one of the worst |
have seen and I've seen quite a few,”’ he
said.

Dental records proved the body was
that of Karen Keaton, Dr. Bridgens said.
He estimated she had been dead since
August 30, the day she disappeared.

On Saturday, September 30, Gardner
was released from the Johnson County,
Kansas jail about 3 a.m. after being rigor-
ously interrogated about the case. Detec-
tives believed he was an accessory if Ms.
Keaton was murdered. He was released
after the Cass County prosecutor de-
clined to press charges against him in
Cass County in connection with the
Keaton case.

Gardner, according to a police
spokesman, would be charged in Johnson
County District Court with aggravated
battery on a police officer when he re-
sisted arrest at the D. T. Lounge. :

As soon as Willens and Hamilton came
to an understanding about Campbell,
both Mercer and Gardner were arrested
and arraigned ona capital murder charge.
Preliminary hearing was set for Thurs-
day, October 12, 1978. Meantime, they
were to be held in the Cass County jail.

A preliminary hearing is the legal in-
strument by which the state must show
that there is ample evidence for the de-
fendants to be bound over for trial.

During the 2 1/2 hour hearing ‘before
Magistrate Judge Don F. Whitcraft in
Harrisonville, Mo., on the 12th, the state
called only two witnesses. Their key wit-
ness was John A. Campbell, who witnes-

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sed the slaying, and Mrs. Helen Cotter,
mother of Karen Keaton, who identified
her daughter's picture and presented
background on Ms. Keaton.

Campbell, who was under protective
custody, was unflappable in his account
of Ms. Keaton’s death despite considera-
ble prodding by Al Hardy and John
Lozano, the defense attorneys.

AfterCampbell said that the order from
Gardner to Mercer to kill Ms. Keaton had
been in jest, Hardy attempted to have the
charge against Gardner dismissed. f

Both of the defense lawyers questioned
Campbell on details of the case. They
tried t) show that Campbell had received
immunity from prosecution in exchange
for testimony but Campbell said only that

his attorney, Sidney Willens, told him he
(Willens) **would see what he could do.”

Ifasked to do so, Campbell declared he
would take a polygraph examination.

The two defendants — Mercer and
Gardner, both with long hair and beards
— stared straight ahead as Campbell re-
lated his version of the rape and murderof
Ms. Keaton. Tiny Mercer was dressed in
corduroy jeans and an orange shirt. A
cigarette was nestled over his left ear.

Gardner wore jeans and a
T-shirt.

Following the testimony ot
on the night's events, Hardy «
Campbell as an unemployc
Corps veteran who saw duty i:
nam war as a helicopter machi

Hardy then asked: "Were:
your duties as a.machine gun
Vietnamese? Did you do that

“I don’t know,’* Campbell :

“You tried, didn’t you?”

“I did to protect myself.’

“Did you think Mr. Merce:
to kill her?’

Ses."

‘*Well, why didn’t you hit \\
on the head?”

“With what?”

“Your fist, your foot. any t
were afraid of George Merce:

“"¥es..””

Next Hardy probed testim
Campbell that showed the fi
had taken Ms. Keaton’s pulse |
beat.

“You had a pulse, right?”

(continued on page 5

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brush the posse saw what was exciting
the dog. It was a discarded garment.

Sheriff Grothe sprang forward. He
picked up a suit of overalls, then an-
other, smaller suit.

“Both of these overalls are new,” he
observed as he scrutinized them.

He looked about in the brush and
found a ten-foot piece of small, new
rope. Next to it he discovered two pairs
of white cotton gloves and a_blood-
smeared handkerchief.

Sheriff Grothe stepped further into the
brush. His keen gray eyes peered in-
tently through the foliage. He saw
something gleaming in the weeds.

It was a nickel-plated .32 Iver Johnson
revolver. There were no weather stains
on the weapon, proving it hadn’t been
there long. t)

“Here’s the murder gun!” Sheriff
Grothe cried.

The two pairs of overalls were made
by a Cincinnati manufacturer, and each
was marked “Lot 102.”

Huckabay noticed some brownish
spots on the smaller pair.

“Here’s blood,” he said. ‘‘It’s in pear-
shaped drops, and not smeared. These
stains on the breast of this garment were
made by blood dropping from a wound
in the murderer’s face.”

“Then Miss Duebbert actually used
that butcher-knife in trying to fight off
the murderer!’ exclaimed Deputy
Plackmeyer.

The gloves, rope and handkerchief
were unmarked.

Deputy Plackmeyer carefully wrapped
the articles in a newspaper, and once
more Huckabay gave Jesse James his
head.

At the bottom of the hill they found
more evidence.

Among some trees at the edge of an
ungraded logging road were fresh auto-
mobile tire tracks.

“This is where the killer hid his car,”
the sheriff deduced. “And see those
paper napkins with the mustard spots
and that empty milk bottle? Those are
the remains of the killer’s lunch. He
must have waited in this concealed place
until dark, then climbed the hill and
swooped down on his victim.

Deputy Plackmeyer added the napkins
and milk bottle to his growing bundle
and the posse returned to the murder
scene.

It WAS nearly noon when Sheriff
Grothe phoned the hospital to ask
about Gus Meier. Dr. Belding reported
that his condition was not serious.

“We found one of the bullets, Sheriff,”
said Dr. Belding. “It was lodged in
Meier’s left hand, and was a .32 slug.”

“That’s great,” replied the sheriff. “I
found a revolver of the same bore.
Maybe your bullet was fired from this
pistol.”

Lester Webb was soon eliminated as
a suspect when it was found that he had
no wounds on his face or neck. Officers
were convinced that the killer: had been
slashed by Miss Duebbert’s butcher-knife.

Vengeance as a motive for the mur-
der was discarded. There were no men
in the murdered woman’s life. In her
youth she was betrothed to a young man
of German origin but the marriage was
postponed by the outbreak of the Great
War. She never saw her fiance alive
again after he left the Femme Osage
township to enlist in the U.S. Army.
He was killed in action in France.

Sheriff Grothe was firmly convinced
that robbery was the sole motive for the
brutal slaying of the kindly woman. It
was common gossip that because of her
distrust in banks Miss Duebbert had
many thousands of dollars hidden in her
house.

Later, when her assets were Cata-
logued, it was found that she had $625
cash in the house when she was killed
and the astonishing total of $30,000 on
deposit in several St. Louis ang ot.
Charles banks.

Who killed Paulina Duebbert ?

Gus Meier hadn’t recognized the big
man who attacked him, so presumably
the marauders were not residents of the
Femme Osage township. Yet the thugs
had known of the logging road where
the murder car was hidden and they were
able to find their way easily through the
woods in the dark.

Herman Berg, a farmer living at
Dutzow who later raised a $500 reward
for the capture of the killer, gave police
an interesting tip.

“Last winter Miss Duebbert sold some
walnut timber and for several weeks a
crew of lumberjacks was working in the
woods getting out the logs. I don’t know
who these folks were,” Berg said.

It was almost mid-afternoon before the
officers remembered they hadn’t eaten
lunch. They were preparing to return
home when there was a loud hullabaloo
from the hill behind the cemetery. A
large man came running across the field
to the Duebbert house.

It was Otto Brinkmann, one of the
many volunteer searchers, who was
scouring the woods for more clues.

“Look what I found!” he called, flour-
ishing a dark object aloft.

He handed Deputy Plackmeyer a blue
steel, stub barrel .38 revolver. There
were three exploded shells in the maga-
zine. The deputy added the pistol to
his other exhibits and started to St.
Charles at once with Sheriff Grothe,
while Huckabay loaded his dogs in a car
and returned to East St. Louis.

At the county seat Grothe went im-
mediately to see Gus Meier at the

[Continued on page 53]

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“How did it happen?” asked Dr. Brandt.
“Some men were here,” mumbled Meier. He couldn't talk coherently. He
was in great pain and weak from the loss of blood.

But even in his anguish he didn’t forget his cousin. “Find Paulina,” he
kept repeating.

As soon as the last bandage was plastered in place, Dr. Brandt rushed
upstairs. He too was anxious to find Miss Duebbert. But she was not
in any of the bedrooms. Rushing back downstairs, he toured the kitchen,
dining room and back porch without seeing her.

There was a light in the log cabin in the back yard, which Miss Dueb-
bert called her “summer kitchen.” Quick inspection proved the mistress
of the big farm wasn’t there.

Dr. Brandt ran around the house to the front.

“Miss Duebbert is not in the house,” he told the neighbors gathered at
the gate. “You men scatter out and look for her in the chicken yard, the
cow lot and barns. She may be badly injured.”

Then the doctor returned to the house and telephoned Sheriff Isidore
Grothe and Coroner Dr. Belding at the county seat, St. Charles.

H ALF an hour later there was a shout from a searcher who was scouring
the field behind the barns.

“Here she is,” he yelled. ‘‘Here’s Miss Duebbert.”

Doctor Brandt hastened to the spot.

The woman was sprawled near the base of a big hay stack. The light of
an electric torch was flashed in her face. It was ghastly white. An expression
of paralyzing fear froze her cold, chiseled features and her glassy eyes stared
blindly.

Even before he touched her wrist to feel for her pulse, Dr. Brandt knew
Paulina Duebbert was dead.

“There’s nothing we can do for her now,” Dr. Brandt said quietly. “We'll
leave her body here until the sheriff comes.”

At 2:00 a. m., Sheriff Grothe and Deputy Lester Plackmeyer arrived, and
were conducted immediately to the hay stack. They inspected the body of
the dead woman, but found no wounds. How had she been killed?

Even more astounding than this absence of wounds was another revelation.

Gripped tightly in her right hand was a bloody butcher-knife !

Had the timid, blue-eyed woman been forewarned of the impending assault
and prepared to defend herself? If she had known her life was in danger,
who was her slayer?

On the sheriff's orders, hushed and
tearful neighbors carried the body into
the house, and reverently placed it on paviin® nt. 3
a bed upstairs.

a he > Tie

Dave Miller, above, left, and youthful Norman Tanner, above, right,

were questioned by officers following the cruel murder. Dr. Ben
Brandt, right, was first to arrive at the death scene, summoned by
Miss Deubbert’s wounded handyman,

Gus Meier, still very weak and in a
semi-stupor, was able to answer a few
simple questions asked by the sheriff.

“Have you any firearms?” was the
first query.

“A 22 repeating rifle is the only gun
on the place,’ Meier said.

“Please tell me what happened here
tonight.”

“T was reading in the summer kitchen.
It was after dark. I heard Paulina
scream in the cow lot and went out
there. A big fellow I never saw before
shot me. Then I must have fainted and
fallen to the ground. Later I crawled
to the house and called Dr. Brandt.”

Meier closed his eyes in utter exhaus-
tion. Suddenly he reopened them and
stared wildly about. He tried to sit up,
but was restrained.

“Where’s Paulina?” he cried. “You
must find her !”

They didn’t tell him his wealthy
cousin was dead. -Instead, Dr. Brandt
administered a sedative and Meier soon
went to sleep.

It was almost daylight when Dr.
Belding, the coroner, arrived.

“The woman was murdered yet there
seems to be no wound,” Sheriff Grothe
said. “It's weird.”

First, Dr. Belding combed the hay
from her thick, black tresses. The hay
had concealed a blood-clot over a round,
quarter-inch hole in her skull.

“The exit hole of the lethal bullet,”
observed the coroner.

With a slender steel spindle Dr. Beld-
ing probed the wound, then pried open
the clenched teeth. He found that the
bullet had crashed through the roof of
her mouth before piercing her brain.

The coroner visualized the horrible
picture of her murder.

As the unhappy .Paulina Duebbert had
opened her mouth to cry out for help,
the assassin had sent a murderous’bullet
between her gaping jaws.

The mystery of the butcher-knife in
the dead woman’s grasp was not imme-
diately explained.

On Dr. Belding’s orders, Gus Meier
was taken to a hospital and Miss Dueb-
bert’s body removed to a St. Charles
mortuary.

At 7:00 a. m., Sheriff Grothe phoned
W. B. Huckabay, a bloodhound breeder,
and owner of a detective agency in East
St. Louis.

“There has been a murder here,”
Grothe explained, “and I want you to
help me. Bring your dogs as soon as you
can get here. And be sure ol’ Jesse
James is one of the hounds you bring.”

“Dll be there in two hours,” Huckabay
promised.

OR thirty years the breeder had

trained and operated bloodhounds.
They featured in solving many criminal
mysteries in the middle west, and Jesse
James was the most famous hound he
ever owned.

By this time, the ugly threat of mob
violence was giving officers serious con-
cern. A victim was already selected on
whom aroused townsfolk wanted to
vent their wrath.

Lester Webb was the murderer, they
whispered.

Webb was a_ne’er-do-well in the
thriving community. He was a share-
cropper among land owners and a shift-
less drunkard among sober, hard-work-
ing farmers. He lived in a disreputable
shack that was in startling contrast to
the freshly painted, substantial homes
about him.

Webb had been a part-time employe
of the dead woman. But at last the
charitable Miss Duebbert could endure
him no longer, and fired him. There had
been a dispute about wages and Webb
later was heard to mutter drunken
threats against her.

It was 9:00 a. m., when Huckabay
reached the beautiful Duebbert home.
He had Jesse James and another dog
with him.

The dogs sniffed around the hay stack
until they picked up the killer’s scent.
With Jesse James in the lead, the dogs
started across the small field behind the
barns and headed toward the Duebbert’s
private cemetery in a clump of cedar
trees at the base of the hill to the north
of the house.

The dogs weren't going toward Lester
Webb’s place. Several men, convinced
that Webb was the murderer, tried to
veer Jesse James from his course by
standing in front of him and shoving his
head in another direction, But at last
the human obstructions were cleared and
Jesse James went to work eagerly.

He began to whine as he reached the
crest of a hill. The scent was growing
stronger! With partial success Hucka-
bay restrained the tugging dogs as they
started to rush down the other side of
the hill.

Half-way down the slope Jesse James
began to bay plaintively. In a patch of

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Missouri’s Deadly Raiders and the

hospital, while Deputy Plackmeyer wrote
letters to the manufacturers of the two
pistols and of the overalls. Then he pre-
pared to send the .32 pistol and the bullet
recovered from Meier's wounded hand
to a ballistic expert in St. Louis.

Meier greeted the sheriff with a wan
smile when he entered the hospital room.

“It was a terrible tragedy, Gus,” Sheriff
Grothe said. “I know the shock of Miss
Duebbert’s death and your own wounds
are mighty tough on you, but if you are
strong enough to talk I wish you would
give me the complete story of what hap-
pened last night.”

“Shortly after dark,’ Meier began,
“Cousin Paulina came into the summer
kitchen where I was sitting and got the
butcher-knife. She said that a horse had
stepped on a hen and broken its leg. She
was going to dress the fowl so we could
have it for dinner next day.

“A few seconds after she left I heard
her scream. I jumped up and ran out to
the lot to see what was going on. As I
started to open the gate I was met by a
big man with a pistol in his hand. He
ordered me to raise my hands, which I
did.

“Then a smaller man came across the
lot with Cousin Paulina. She was very
frightened and was whimpering. She told
me the man had threatened to kill her.
She and the little man were walking
toward the house.’”’ Meier paused to shift
his pained body before continuing.

“7 STARTED to ask the man not to

hurt her, when suddenly the big
fellow started shooting at me. I could
feel a burning sensation in my head as I
fell to the ground. He shot at me again
as I lay there, but I don’t know where
he hit me.

“I pretended to be dead and lay still.
I must have lost consciousness because I
don’t remember when the man who shot
me ran off. I looked around and couldn't
see anyone. I called to Cousin Paulina
but she didn’t answer. Then I began to
crawl toward the house. I must have
fainted once or twice before I got to the
telephone, but I made it at last and called
Dr. Brandt at Cappelin.”

The wounded man hesitated again, his
face pinched in agony. Grothe helped him
into a more comfortable position and let
him rest for a moment.

“Did you notice what the men looked
like?” he finally asked.

“T didn’t get a clear look at either of
them,” Meier answered slowly. “There
was nothing familiar about their voices
or figures. I don’t believe Cousin Paulina
recognized them either. The only descrip-
tion I can give you is that one was tall.
about six feet I’d say. The other was
quite short. No more than five-four.”

The first reply from Deputy Plack-
meyer’s queries came from the St. Louis
ballistic expert.

“The .32 caliber bullet you submitted
was fired from the Iver Johnson revolver
sent us for comparison,” read the report.

This interesting information was use-
less until the ownership of the gun could
be established.

The overalls manufacturer in Cincinnati
furnished the sheriff with the complete
list of merchants to whom garments from
“Lot 102” had been sold. There was only
one name that interested Sheriff Grothe.

[Continued from page 43]

The A. Markham Loan and Mercantile
Company of St. Louis was the only store
within 100 miles of the murder scene that
had handled these garments.

An hour after the letter from Cincin-
nati reached the sheriff's office, Deputy
Plackmeyer called on the St. Louis mer-
chant.

“I remember selling those overalls to
two fellows a week or so ago,” said A.
Markham. “They also bought two pairs
of white cotton gloves, some handker-
chiefs and a short piece of rope. The man
who did all the talking was a short, bushy-
haired fellow about 35 years old. The
other man was a big, blond, timid young-
ster about 22 years old, who seemed very
anxious to please his older pal.”

“Did you ever see either of them
before?” asked the deputy.

“No,” replied Markham. “But I’d rec-

Slain Spinster

ognize them if I ever saw them again.”

The ownership of the pistols could not
be so easily traced, the officers knew.
The original purchasers had sold the
weapons to casual friends. The only
method of tying the guns to the killers
was to find record of a recent sale in one
of the St. Louis pawn-shops.

Two weeks after the murder of Paulina
Duebbert, Sheriff Grothe called Hucka-
bay at his office in East St. Louis.

“Bill, I’ve got a hunch those pistols
used in the Duebbert case were bought
in your town,” he said. “Please check the
second-hand stores for me and see what
you can find.” Then Grothe proceeded
to give the serial numbers stamped on the
pistols.

At the time of the murder, August 22.
1929, anyone who Had the cash could buy
a pistol in Illinois merely by signing the

‘

SCENE OF “BRICK MORON” SLAYING

An officer points to the window by which a murderous brick-throwing half-wit

entered the home of Mrs. Florence Jackson, Without warning, the fiendish killer

attacked and killed the middle-aged woman. A similar murder was committed
in the same district last year.

wm
tn

aU em

1,000 “Wanted for Murder” circulars
printed and sent them to peace officers
everywhere. Then he ordered Deputy
Plackmeyer to go to Booneville and con-
tact Miller's young sweetheart.

The attractive girl was shocked to learn
of the serious charge against her absent
lover. She agreed to give Plackmeyer all
the help she could.

“He'll write me in a day or two,” she
prophesied.

And Miller did just that. The letter
was posted in a little mining town in
West Virginia. The sheriff there was
notified at once, but when he went to
arrest Miller, the murder suspect had
gone.

A second letter came from Kentucky.
Once more the officers were notified, and
again Miller fled a few hours before the
sheriff's men arrived.

One morning in early October, six
weeks after the murder, the phone in
Sheriff Grothe’s office rang. Sheriff Hyde
of Buffalo, Mo., was calling.

“T've got Dave Miller in jail,” was his
surprising statement. “When I got your
circular I had a notion Dave Miller would
show up here sooner or later. This is one
of his favorite towns. So I asked some

folks to notify me when he arrived and
last night I heard he was in town. I
went out and arrested him without a
struggle.”

“Was young Norman Tanner with
him?” asked Sheriff Grothe.

“No, but I think I can locate him. I know
Tanner well.”

Two days later Deputy Plackmeyer
brought Dave Miller to St. Charles and
locked him in jail. The prisoner vigorously
denied he had been within 100 miles of
the Duebbert farm the fatal night. He
claimed he had been on a fishing party
at the Lake of the Ozarks.

The following week Norman Tanner
was located by Sheriff Hyde at Pitcher,
Okla., and was brought back to Buffalo.
From there he was removed to the St.
Charles jail by Deputy Plackmeyer.

A. Markham, who sold the bloodstained
overalls, positively identified Miller and
Tanner as the purchasers. The comely
girl from the pawnshop was sure the
prisoners were the “John Smith” and
“William Jones” who had bought the
murder guns from her, and the tavern
waitress insisted she sold Miller and
Tanner sandwiches on the afternoon of
the murder.

sama at EN ——

Tanner seemed convinced that this evi-
dence was enough to convict him and the
officers urged him to make a statement.
At last the young man agreed.

“Miller killed Miss Duebbert.” he said.
“The woman was slashing at him with
a big knife, so he shot her. She cut several
gashes in his face, too. I shot at Gus
Meier several times and I'm glad I did not
kill him.”

They hadn't intended to kill anyone,
Tanner insisted. They planned to force
Miss Duebbert to tell where she hid the
vast amount of cash she was reported to
have at the farm, and then leave without
firing a shot.

Miller verbally verified Tanner's ad-
mission but he never signed any state-
ment.

The men went on trial on April 8, 1930,
at St. Charles. Tanner was given a life
sentence and was taken immediately to
the state penitentiary. He's a convict
there now.

Miller was sentenced to be hanged. He
appealed his case but the verdict of the
trial court was sustained. He was ex-
ecuted at the county jail in St. Charles on
Feb. 10, 1933.

(The name Lester Webb used in this story is
fictitious.)

Wayward Beauty and the Murdering Physician

could re-open it if we could obtain new
evidence or locate our missing witness.

Undaunted by his set-to with the law,
Eisiminger resumed his practice of “med-
icine’ more boldly than ever. He blos-
somed out into new sidelines of quackery.
During the following year he moved his
offices to Broadway and Second street.
He manufactured patent medicines and
gave more mysterious treatments for
even more mysterious diseases. He put up
a peculiar dark fluid in fancy bottles and
claimed it was a medicinal earth from
Mississippi. Analysis revealed it to be
approximately that. It was common, ordi-
nary mud from the Mississippi river low-
lands.

As the fiend’s practice grew, Oklahoma
City became too small to hold his ambi-
tions. He built up an organization and
departed for Texas as a world-famous
urologist. He styled himself as “The
Great Dr. Eisiminger.”

His method of work was simple. It has
been used for many years by medicine
shows and wandering quacks of his type.
He engaged women employes and sent
them into a town ahead of him, where
they lauded his reputation over teacups
and bridge tables. Hundreds of neurotic
women and hypochondriacs, the ever-ever
sick race, listened in awe, were convinced
and visited the “great surgeon.”

Price was no great matter to this
monster. He took what he could get. He
had one simple panacea for all ills. A
hideous little operation to which he sub-
jected his patients whether they had
dandruff, bunions or appendicitis.

Applying a dubious anaesthetic, the
butcher cut an incision in the victim's
abdomen, delved with his unsanitary in-
struments and extracted a segment of
intestine. It made little difference to him
what part of the patient's alimentary
canal he exposed. From this he would
remove a small section, sew the loose
ends together and put the man or woman
back together again. Thus, he was assured

[Continued from page 25]

of an expensive fee and many return
visits. The marvel was that the fatality
rate was no higher than it seemed to be.

This “marvelous” healing tour finally
attracted the attention of the Texas med-
ical board and they placed a warrant for
Eisiminger’s arrest. He was eventually
picked up by a special Texas ranger on
charges of practicing medicine without
registration, unethically. But mysterious-
ly, and with monotonous regularity, wit-
nesses against him failed to turn up for
the trial. Eisiminger wriggled like a slip-
pery eel out of the clutches of Texas
justice.

Early in 1934, Eisiminger and his troupe
moved on to Houston where they soon
set up a thriving quackery business in the
heart of the metropolitan district. Local
authorities listened, looked and were not
convinced. The Houston Chronicle, one of
the city’s leading newspapers, owned by
Jesse Jones, chairman of the Reconstruc-
tion Finance Corporation, printed a story
about Eisiminger’s career, bringing up
the fact that he had been tried for mur-
der in Okla.

HIS was a distinct pain to the great

man and he immediately prescribed a
lawsuit for $150,000 worth of libel. He
also filed a $90,000 libel suit against W. A.
Rowen, investigator for the Texas Medi-
cal Board. The secretary of the Texas
Medical Association was the recipient of
another $30,000 suit. To top the list, he
sued the physician who attended Miss
Wyckoff for $300,000, maintaining that
the latter had been directly responsible
ior the girl’s death. All suits were filed in
the United States District Court at
Houston within the following year.

In the Oklahoma county offices we had
no knowledge at that time that the suits
were filed, as they were not publicized
in Oklahoma City.

One day, many months before these
suits were due to come up in court,

a middle-aged gentleman walked into the
county attorney's office and asked to see
Lewis Morris. He represented himself as
being one Charles V. Stuart.

Attorney Morris knew Stuart as the
head of a local voter's league.

“Mr. Morris, I’m making an investiga-
tion for the osteopathic board into the
case of Dr. E/isiminger,’ Stuart told
Morris. “Recently he has been practicing
in Texas. I am to go down there to see
what is going on. Not knowing any Texas
authorities, I thought you might write
me a letter of introduction to them. It
would help me quite a bit in my work.”

Morris was glad to cooperate in any
plan that might aid in bringing the “doc-
tor” to justice. The Wyckoff case was
still a sore point with all of us. Stuart
was given a letter to several officials in
Texas.

But the genial Mr. Stuart was just au-
other one of Ejisiminger’s accomplices!
At that time we did not learn of his ac-
tivities, but later we found that he hurried
to Texas, using Morris’ letter as a sem!-
official authorization to delve into state
records, correspondenée and other valua-
ble documents relating to the unethical
practices of Eisiminger in Texas.

In the spring of 1936 the Chronicle suit
was about ready to be heard. Eisiminger
boasted openly that he would be able to
prove by affidavit every charge he had
made.

First news to reach our office regardiny
these lawsuits came when an investigator
for the Texas attorney general arrived to
obtain what information we had about

the quack’s operations. We readily told,

him what we knew.

Discovering Stuart's connection with
the case, we concentrated on his his-
tory. We knew he had been prosecuted
for embezzlement in Oklahoma county,
but had won an acquittal. His “voter's
league,” ostensibly a better government
association, was operated by him in a
very questionable manner. He would

~aow

- aes

HE news of the murder came at
midnight in a weird and ghastly
manner to the inhabitants of the

‘Femme Osage Hills of St.
Charles County, Missouri, that
isolated and lonely hill country 55
miles south of St. Louis where
Daniel Boone, back in the 18th cen-
tury, settled before the white set-
tlers appeared.

The farmers were wrapped in an
exhausted slumber when all the
phones on the Femme Osage rural
circuit started to ring one long and
one short—the community signal of
danger and a general party-line call.

Farmers, leaped out of bed and
ran to their phones, and when they
got their receivers down they heard
a man gasping: “It’s Paulina—
Paulina Deubbert ... She’s dead...
murdered! I’ve been shot. Come
quick!”

The weak voice of August Meier,
cousin of Paulina Deubbert, re-
peated this call for help, and then

PAULINA DEUBBERT—
Her reputation for having “plenty
of money around” cost her her life.

Jake Meyers and Paul Fresien,
the two neighbors to arrive first at
the Deubbert farm, found August
Meier crumpled on the floor near
the phone in the old house where
Paulina lived. Paulina was also on
the floor, in the room she used as an
office. A coal-oil lamp was burn-
ing, throwing a weak yellow glow
over the scene. Paulina was dead.
A part of her mouth had been torn
away by a bullet and there was a
gaping hole in the back of her head
where the bullet came out.

MEER had a bullet wound in his

™ hand and two in his head. He
was breathing heavily, but wasn’t
unconscious. “It all happened about
eight o’clock,” he gasped. “I was
in the old log kitchen, doing some
work. I heard Paulina scream and
I ran outside. A young man wear-
ing overalls and a cap came running
toward me, and before I knew what
had happened he had a gun pointed

his voice lost its strength and the

line was silent. But long before this, farmers had
dressed hurriedly and were racing for the Deubbert
home.

Paulina Deubbert was a 48-year-old spinster, a tall
woman with a strong face that showed domination.
She was shrewd and capable and rich. Three genera-
tions before, her grandfather had settled in the Femme
Osage Hills, and the family had prospered, and Paulina,
the last of the direct line, was known as the money
lender of the community.

A few years before, a’new house had been built on
the farm, but Paulina preferred the old homestead,
leaving her cousin, August Meier, to occupy the new
house. Paulina had a room in the homestead set aside as
her office, and here the farmers, who borrowed money,
would come to pay off notes and interest, and Paulina
was reputed to keep a large amount of cash in that
room. Her friends had often warned her about keeping
money .there, as the house was 16 miles off ‘any main
highway, isolated in a hill country that would make it
easy for any robber to escape. But Paulina had laughed
at their words of warning and politely told them to at-
tend to their own business.

at me and he ordered me to walk
over to the old house where Paulina lived.

“Paulina was in the room used as her office. Another
man was there, older than the one covering me. Paulina
screamed that she had been hit over the head with a
log. There was blood running down the side of her face.
She didn’t hardly get her scream out before the man
with her started shooting. The youth started shooting
also. I saw Paulina go down, and:then there was a
pain in my head and everything went dark.”

Meier went on to explain how he must have been
unconscious -.for some time. When he came to, only
he and the dead body of Paulina were in the room.
Both the men were gone. He dragged himself to the
telephone and put in the general alarm call over the
rural line.

The phone operator had called Sheriff Isadore Grothe
in St. Charles,-and 20 minutes later he and Deputy
Bill Stake arrived at the Deubbert farm. By this time
there was a large crowd of farmers there. August
Meier had been taken into St. Charles by automobile
under the orders of Dr. F. L. Pike, who lived in the
neighborhood,

Doctor Pike had examined (Continued on page 70)

So Ine avoided it—and filled a felon’s grave!

By CLIFF

GRANGER

rain

record book. In Missouri, however, no
gun could be sold without the written
authority of a responsible police officer.

It was two p. m. when Huckabay
started to make the rounds of pawnshops
and sporting goods stores. By evening he
had visited two dozen of them and had
looked through their record of fire arms
sales. He learned nothing of interest.

The next morning he returned to the
search. There were ten or twelve more
pawnshops on his list.

At length the wily detective came to a
shop that yielded information. The pro-
prietor’s pretty niece was behind the
counter.

“I'm trying to trace two Iver Johnson
revolvers, Miss,’ Huckabay explained.
‘One is a blue steel .38, and the other a
nickel plated 32. Please let me see your
sales sheet.”

She indicated the ledger with a smile

Huckabay opened it and began to run
his fingers down the page. :

The two numbers he sought were
written there. The last two pistols sold
were the murder guns!

The names opposite the serial numbers
were “John Smith of Chicago” and “Wil-
liam Jones of Chicago.” It was obvious
that the names were fictitious.

HE detective called the girl clerk’s at-
tention to the record book.

“Did you sell these men the pistols?”

She nodded.

“The man who did the talking was a
little fellow, middle-aged, with long, un-
kempt hair. But he thought he was quite
a ladies’ man. He tried to say cute things
and flirt with me. The younger man was
big, blond and quiet. He seemed to be a
nice kid.”

“Could you identify them if you saw
them again?”

She declared emphatically that she
could.

Huckabay reported
Sheriff Grothe.

Deputy Sheriff Lester Plackmeyer.
who worked tirelessly and effectively on
the case from beginning to end, soon dis-
covered another person who had seen the
two killers.

For two weeks Plackmeyer carried the
mustard-stained paper napkins found
near the spot where the murder car was
parked. He called -on countless cafes,
sandwich -bars and taverns. But none of
them used the sort of napkins Plack-
meyer was searching for.

At long last in the outskirts of St.
Charles he found the tavern that had sold
the sandwiches.

“Late in the afternoon before the mur-
der two men rode up in a small car. They
each ate a sandwich and drank a soda and
vrdered four more hamburgers to take
with them,” a waitress told the deputy
“T wrapped them up in the napkins my-
self.”

The voung woman added the now
familiar description of a middle-aged
little man and a young big fellow. But
she was able to add that both wore white
shirts with no ties or coats, and each man
had on a gray cloth cap,

But still there was no clue to the
identity of the killers.

One morning three weeks after the
murder, Sheriff Grothe looked up from
his desk and saw a slender, bronzed man
in the doorway of his office. Something
about the lean figure’s air of suppressed
excitement told the sheriff that things
were about to happen

immediately to

“My name is Chester Hirth,” the
stranger said. “I own a hardwood mill
at Booneville, Mo. I want to talk to you
about Dave Miller.

“Until three months ago Miller was
foreman of my lumberjacks. I liked him
and trusted him. He had authority to sign
my name to checks, which shows you how
highly I regarded Dave Miller.

“For more than ten years he was a
steady married man, devoted to his wife
and children. Then he fell desperately in
love with a pretty Booneville girl who
was 15 years younger than he. He de-
serted his wife and neglected his job.
Finally I had to fire him, but he con-
tinued to sign my name to checks to pay
for the lavish entertainment of his sweet-
heart. I put bank detectives on his trail
but they haven't caught him yet.”

“You want me to help catch this
forger?” asked Sheriff Grothe.

Hirth shook his head. That wasn't the
purpose of his visit.

“Dave Miller murdered Paulina Dueb-
bert!" was Hirth’s amazing retort. While
the sheriff recovered his breath, Hirth
continued:

“IT was in Tennessee on business when
I read of Miss Duebbert’s tragic fate,
but I rushed here as soon as I could, Last

y geet sista

winter I bought some walnut timber from
the spinster and Miller logged it for me.
He knew all about the Duebbert farm. I
once overheard a conversation between
Miller and his young pal, Norman Tanner.
Miller said: ‘Kid, that Duebbert dame has
thousands of dollars hid in her room. We
could slip down there some night, make
her tell where the dough is hidden, and
get away with enough money to keep us
on easy street for many years.”

“Describe Miller and Tanner!” urged
the sheriff.

“Miller is a bit less than average height.
He had brown eyes, rather sharp fea-
tures and is about 35 years old. He has
brown, wavy hair, and is so proud of it
he hates to get it cut. Tanner is a big,
blond fellow, about 22 vears old. Miller
is very talkative, while Tanner rarely,

.ever speaks.”

“Have you a picture of either man?”
asked the sheriff.

“No, but I think the St. Louis police
have a picture of Miller. He was arrested
and jailed there once on a charge brought
by a woman, but he wasn't brought to
trial. I think the charge was assault.”

Lumberman Hirth was right. St. Louis
police had Miller's photo.

Sheriff Grothe immediately ordered

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MILLER, David Ae, White, hang

ed St. Charles, MO on 2/10/1933...

CRIME DETETIVE, APRIL, 1947

THE KILLER—

He thought the murder of a
helpless woman would net a :
heap of money. But he got aes
nothing—except the gallows. 4

ies Pere. 2

He THE ACCOMPLICE—

Ne (Photo below.) He made a

i ° Compenion of the wrong”
man, got life term in prison.

He killed to avoid a prison term!

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home the day before and had tried
to get Carlton’s daughter to swear
that he had been present at her birth-
day party, which took place on the
night Paulina Deubbert was mur-
dered.

Carlton didn’t like things like that
and told the sheriff, and the sheriff
looked for Miller’s picture and when
he found it and Carlton took a good
look, the farmer exclaimed: “That’s
Dave! That’s my nephew!” ;

Miller was arrested at the Carl-
ton farm. He told Sheriff Hyde that
Tanner was still in Picher, working
in the mines. Tanner was arrested
there. :

In St. Charles, Miller denied all
knowledge of the murder of Paulina
Deubbert, and the sheriff and the
district attorney received a setback in
their case when August Meier was
vague in identifying Miller. Meier
claimed it was dark and that he didn’t
get a good look at either man. :

But Miller didn’t know of Meier’s
failure to identify him, and when the
district attorney produced the sun-
glasses, Miller broke and confessed

that he had killed Paulina to get
money to make good the checks he
had drawn on Hurt, his employer. He
admitted that he got mixed up with
Edith Case and promised to marry
her and didn't tell her about his wife
and family.

ACED with arrest for the checks

he had drawn, Miller said he re-
membered Paulina Deubbert in the
Femme Osage Hills. He and Tanner
drove down there and put on overalls
to do the job. They didn’t plan to kill
the woman, he said, and wouldn’t
have, if she hadn’t started to scream.
Then, after the shooting, they both
got scared and didn’t wait to look for
money. On the path through the
woods, they discarded their overalls,
bandannas, and guns.

The next day Miller retracted his
confession. But, by this time, Sheriff
Grothe had brought Edith Case to St.
Charles. When she heard that Miller
-was married, she told everything.
She said that Miller and Tanner had
told her they were going to the Femme
Osage Hills to get some money from

4 woman, and when they returned the
next day they were nervous and
‘rightened and afraid of their car,
which they abandoned at Booneville.

When told that Miller had confessed,
young Tanner started to talk. He
described the crime in detail and
promised to take the witness stand.
Beeause of his testimony, and be-
cause it was obvious that Miller had
planned every detail of the crime,
Tanner was allowed to plead guilty.
Judge Woolfolk sentenced him to life
imprisonment.

Miller stood _ trial. The jury
promptly brought in a verdict of
murder in the first degree with no
recommendation for leniency. Judge
Woolfolk sentenced him to die by
hanging. Three months later he paid
with his life for the murder of
Paulina Deubbert.

Eprror’s Note: The names Tom and
Joe Telson and Edith Case as used in
the above true story are fictitious, to
spare embarrassment to innocent per-
sons who had to be questioned by the
authorities, -

DETECTIVE

he said, running his fingers nervously
through his hair. “I can’t imagine who
did it. They were both all right when
I left Saturday about noon. Tony let
me take the car to come up here for
the week end. He came to the barn
door to say good-bye to me, and that’s
the last I saw of him. Mrs. Geisler was
in the house when I left.”

Salisbury motioned to a _ sedan
parked in the yard. “Is that their
car?” he asked.

Schlaps nodded, and accompanied
the officials outside, where they in-
spected it. There were no bloodstains
in or on it and no evidence that any
attempt had been made to clean up
any such blemishes. And when the
sheriff compared the plaster tire
moulds with the rubber on the wheels,
the pattern did not match.

Questioning of Schlaps’ relatives
disclosed that on more than one oc-
casion Geisler had loaned the ranch
hand his car for similar purposes, and
once even let him. drive it to North
Dakota to see his girl.

The youth said he spent two hours
in Homestead after leaving the ranch,
and an individual check with the rela-
tives showed that if this were true, he
had arrived at their place on schedule.

“If his story about being in Home-
stead holds up, he’ll be in the clear,”
Salisbury observed to Nelson as the
two conferred briefly. “What I’m
wondering now is whether someone
saw him collect the money from those
hogs yesterday morning and, know-
ing that he was going away for a day
or so, decided to rob the Geislers.”

“It’s pretty evident they weren't
robbed, isn’t it?” the coroner reminded
his partner.

The sheriff ebrugeee as he replied:
“It’s possible the killer got cold feet
_ he committed the murders, and

e Nig

With this in mind, Salisbury ques-

SHOTGUN TERROR.

Continued from page 31

tioned Schlaps in detail regarding the
persons. who had witnessed the hog-
selling deal and those to whom he had
mentioned his projected trip.

B* the time Sheriff Anderson ar-
rived from Wolf Point, the Sher-
idan County officials had gleaned
some information on this score which
they thought might prove important
Schlaps had named three men who
had been present when he had re-
ceived payment for the hogs, and at
least one of these undoubtedly had
heard the ranch hand tell Geisler’s
neighbor about his planned visit to
relatives.

“But Schlaps can’t identify this
person,” Salisbury told the Roosevelt
County official. “He says he never saw
the man before.”

Anderson felt that this would bear
investigation and, after driving back
to the Geisler ranch to view the mur-

‘der scene, he followed the Sheridan

County officials to Homestead, where
Salisbury turned over to him the
known facts and evidence in the case
and Coroner Nelson proceeded with
the autopsies. . :

The latter’s findings, later that day,
cleared up one vital point in the case.
Anton and Ludmilla Geisler had died
of gunshot wounds and not from
drowning. For no water was found in
their lungs.

Anderson, meanwhile, had launched

. several lines of inquiry. He first sought

to learn the identity of the stranger of
whom Schlaps had spoken. Then, with
the aid of the Sheridan County au-
thorities, he began a check on the
ranch hand’s statement as to his
whereabouts from noon to 2 0’clock on
the day of the crime. In addition, he
attempted to probe the private life of
the Geislers to find out whether re-
venge or jealousy could have been a
motive for the crime.

There was, too, the matter of the
tire marks along the Little Muddy
River bank, and in order that this clue
might be used to maximum advantage,
Anderson had several sets of the plas-
ter moulds made for distribution to
garages arid service stations. “Keep
the pattern of that tread in mind,”
he told the proprietors of these
places. “If anybody suspicious drives
in, give the wheels the once-over.”

This angle took an unexpected turn
the following morning when a 1922
model Buick touring car was found
abandoned in a clearing near a patch
of woods a few miles outside of Home-
stead.

Sheriff Anderson, informed of the
discovery, hastened to the lonely, iso-
lated spot to examine the car. He
found it listing badly from a flat tire
and observed that the spare tire,
normally carried at the rear of the
vehicle, was missing. But when he
bent down and compared the rear tire
treads with the plaster moulds made
on the Little Muddy River bank, his
heart skipped a beat. The pattern was
identical. “Let’s not waste time,” he
said to the deputy who was working
with him. “You examine the front.
T’ll take the back. Then we’ll hotfoot
it back to town and try to trace these
license plates.”

Not many seconds had passed before
Anderson had further occasion for ex-
citement. On the floor in front of the
back seat were discolorations which he
thought might be blood and, whipping
out a penkife, he cut out a piece of
the floor covering to send to the State’s
scientific laboratory. When this had
been accomplished and the sheriff was
certain no other clue was obtainable
there, he and his deputy returnéd to
Homestead, where he phoned the State
automobile license bureau.

It was quickly ascertained that the
Buick belonged to John Quinlan, a

4
3

DETECTIVE

Paulina’s body, and he said to the
sheriff: “There isn’t. much to tell
about her death that you can’t see.
She was hit on the head and then
shot through thé mouth. This bullet
killed her.’

There wasn’t much the sheriff and
his deputy could do in the darkness,
but when dawn broke the sheriff had
Pete Taller and his three bloodhounds
at the farm. The neighbors had -been
organized into three groups to search
the woods for possible clues,

Pete Taller and his bloodhounds
weren’t very successful. With many
of the neighbors coming to the Deub-
bert farm that night on foot, the
hounds picked up their trails. The
sheriff gave up using the bloodhounds
after several bad tries and joined the
parties searching the woods.

During the night he and Deputy
Stake had gone over the old farm-
house. Nothing had been found that
proved to be of any help.. The sheriff
was working on two possible theories
for the motive. One was robbery.
He was handicapped in this, because
there was no way of knowing how
much money Paulina Deubbert kept
in her office.

Her cousin, August Meier, with the
two bullets in his head, had shown
considerable improvement in the St.
Charles Hospital; the doctors reported
that the bullets had merel creased
his head and that he woul recover.

District Attorney William F. Bloe-
haum had questioned him. Meier said
he was unable to give any idea what
amount of cash his cousin kept in the
home, as she was always very secre-
tive about her affairs. ‘i

The other theory both the district
attorney and the sheriff had for the
murder was that Paulina Deubbert-
had been killed by some person to
whom she ‘had loaned money and had
foreclosed the mortgage. This was
weakened considerably when the dis-
trict attorney, checking the court
records, found that Paulina Deubbert
wasn’t a money lender who foreclosed
on many farmers. The list was small
—only three foreclosures in ten years.
The district attorney: knew two of

those parties. They had left the’

county and hadn’t been seen around
for five years. The third was an old
man, who: had died the year before.
In the house, however, the sheriff had
found a list of all the creditors. He
sorted out the notes and laid those
aside that were past due. The names
were phoned to the district attorney,
who had started a check-up in St
Charles and the surrounding county,

BvcE at the Deubbert farm, the
sheriff and the three parties: of
searchers went slowly through the:
woods, kicking at each small bush and
trampling down the grass. They didn’t
have to go far until this effort began
to net. results. Near the house, on
the trail that led through the woods,
two pairs of bloodstained overalls
were found. Then, as the sheriff and
the searchers followed the trail, they

70 picked up a large assortment of ad-

SUN-GLASS SLAYERS

Continued from page 51

ditional clues. First they discovered
two bandannas of peculiar design, and
a little further on two white hand-
kerchiefs. About 50 yards from this
last find two pairs of work gloves lay
in the grass. And near these was a
piece of fence rail, covered with
blood, human flesh, and hair.

“This,” Sheriff Grothe said, “is very
likely the weapon that was used as
a bludgeon. We’ll have the hair on
it matched with Paulina Deubbert’s
hair, but I am convinced that this
was used to club her as Meier de-
scribed.”

With the overalls, the clothes, and
the bandannas as clues, the sheriff
drove to St. Charles, convinced that
with these he could quickl pick up
the trail and identify the killers. The
searchers continued their work at the
farm, combing haystacks, dredging
cisterns, and scanning every foot of
the woods.

Twenty-four hours later the sheriff
and District Attorney Bloehaum had
to admit to themselves that the vari-
ous clues pees up outside the Deub-
bert farmhouse weren’t getting them
very far toward a solution.

The overalls had a union stamp
number and the label of a factory in
Columbus, Ohio. A-phone call to the
factory brought the rompt reply that
the lot these overalls came from had
been shipped to the Middle West, and
a list of the merchants ane
them was given over the phone. The
only one that could possibly help the
two officers was Andrew May, who
had a store in St. Louis.

Sheriff Grothe and the district at-
torney drove to St. Louis and talked
with May, and for a moment it looked
as if they were on a hot trail, Not
only did May carry that brand of
overalls, but he also carried handker-
chiefs and exactly the same type of
bandannas found. The only catch
came when May frankly admitted that
he sold so many overalls and hand-
kerchiefs and bandannas, it was im-
possible for him to remember any one
or two individual purchasers. His
business was all cash and he kept no
records of specific sales. The two
officers, who had driven to St. Louis
in such great spirits, returned to St.
Charles weary and ‘very much dis-
couraged.

While they had been checking at
the store, Deputy Stake had been do-
ing a lot of investigating in the
neighborhood of the Deubbert farm in
regard to the different people who
owed Paulina Deubbert money. And
when the Sheriff and District ttorney
walked into the courthouse at St.
Charles, he had news that revived
their spirits considerably.

“There’s two brothers in that
neighborhood who wanted badly to

et revenge on Paulina Deubbert,”

e said. “They owed her considerable
money and were in.arrears on pay-
ments of interest. It was more than
just not being able to pay the notes,
They had forged the name of Chris
Nathan on the notes and it was his
name that caused Paulina Deubbert

to loan them money. She learned
about the forgery several weeks ago
and was threatening them with prison
if they didn’t take up the notes at
once. They couldn't raise the money
and things looked bad for them.”

“Who are they?” the sheriff de-
manded.

“Tom and Joe Telson. They tried
to operate a sheep ranch, and didn't
have much luck.” j

“What else have you learned about
them?” the district attorney asked,

“They weren’t at home the night
of the murder,” Stake answered.
“That is, they weren’t there early in
the, evening, around eight, when
Meier said Paulina was killed. A
neighbor went over to see them and
the place was deserted. Then the
next day they acted rather funny
and wouldn’t talk about Paulina’s
murder.”

“Bring them in,” the sheriff ex-
claimed, “We may have a solution
to this murder right in our hands.”

oF bypeiad and Joe Telson both wore
overalls and were nervous and
frightened. Phil was about 40 and

.his brother was very much younger

~—not much more than 20.

“Where were you two night be-
fore last, at around eight o’clock?”
the district attorney questioned,

“We went to St. Louis that day,”
Tom answered. “But we ain’t got no-
body that can swear we went there.
We were having trouble with Miss
Deubbert about money, but we didn’t
kill her. We weren’t even here.”

“She .was going to have you sent
to prison,” the sheriff shot at them,
“and you got scared ‘and went over
there and killed her!”

“I reckon as how that can’t be
proved,” Tom countered. “We ain’t
exactly strangers at the Deubbert
home. August Meier knows us by
sight and we understand that he saw
the two killers. If he says it was us,
we'll be in a mighty hard spot, but
it won’t be the truth.”

“We'll get to that later,” the sher-
iff told him. “We plan to’ talk to
Meier when he is able to see you two.
You didn’t buy any Overalls at the
May store in St. Louis, did you?”

Tom .shook his head. “We ain’t
buying any overalls in St. Louis
never.”

The questioning continued, and the
sheriff and the district attorney began
to get the feeling that the two men
were sou the truth. The overalls,
the piece of fence post, and the other
clues had been sent to St. Louis to be
examined for fingerprints. The two
Telsons were held until the report
from the fingerprint experts came
back.

It arrived two hours later, and
didn’t prove to be of any help. All
prints had been waped from the fence,
railing used as the club to knock
Paulina Deubbert down. Tests on the
overalls, bandannas, and handker-

‘<

‘chiefs brought out a number of

smudged prints, none that proved to
be of any value.

section
the ki}
would

Since:
crimes

The blood on the overalls had been
tgsted and found to be human blood
of the same type as Paulina Deub-
bert’s. The hair on the fence rail was
hers and the flesh was found to be
from a human head.

None of this, however, was much
dérect help in the case against , the
Telson brothers, who stubbornly
stuck to their story that they had been
in St. Louis and demanded that
August Meier be called on to say
whether they. were the killers or not.

They were taken to the hospital.
August oe propped up in bed,
a one look at them and shook his

ead,

“It wasn’t the Telson boys,” he
announced. “I don’t know them very
well, but I do know that they weren't
the two men that shot Paulina and
me.”

Thus the case against the Telson
brothers went crashing to the earth
and they were released and allowed
to go home.

“7 arrival of Otto Brinkmann, a
close neighbor of Paulina Deub-
bert, in St. Charles at this time, raised
the drooping spirits of the sheriff and
the district attorney slightly. Otto
had continued his search of the woods,
so he explained, and he had found
two fevalverl along the trail, which
had been overlooked by -the other
searchers. One was a blue-tinted .32-
calibre Savage, with the sight broken
and five exploded shells in the
chamber, On the trigger was
stamped the serial number “30988.”
The second gun, found a little dis-
tance from the first and buried deep
in the grass and earth, was a .38-
calibre, nickel-plated Iver-Johnson.
It contained four loaded cartridges.
One was exploded.

While these guns didn’t point out
the killers, and could be as tantaliz-
ing clues as the overalls and ban-
dannas, they did give the sheriff and
the district attorney something new to
work on, which was a moral stimulant
after the failure of the case against
the Telson brothers.

Tracing of the guns started at once.
They were sent to St. Louis, where
ballistics experts tested them and
compared the-bullets to those from
known:-guns. Both Sheriff Grothe and
District Attorney Bloehaum were now
convinced that the murder of Paulina
Deubbert was the work of St. Louis
gangsters, who had spotted the Deub-
bert home.

Yet both had to admit there were
certain weaknesses to that theory.
The Deubbert farm was isolated, 16
miles off of any well-graveled road,
in the most lonely, seldom frequented
section of the Femme Osage Hills.
Had the killers escaped by the dirt
road that passed the farm, it would
be easier to explain how strangers to
the community could have handled
the job.

The killers didn’t escape that way.
They went over the trail that led
deep into the woods, and only a per-
son well acquainted with that region
could ever hope, at night, to get safely
through the woods. And there was
no doubt but by midnight the killers
had made a clean break. The search-
ing parties of the hill farmers, know-
ing every trick of the woods and
every back trail, had covered that
section like a fine-tooth comb and if
the killers had gotten lost they never
would have escaped the searchers.

Since murder and robbery had been
crimes rare in the Femme Osage Hills,

and the probability was remote that

the killers lived there, the sheriff ad-

vanced the explanation of the escape

on the grounds that one of the killers

could have been somebody who had

— lived there and had gone to St.
Ouis, ;

All this, however, was mere con- -

jecture and couldn’t get the investi-
gators far on any solution.

The next morning Otto Brinkmann
appeared again in the sheriff’s office.
He had found another clue. It was a

air of sun-glasses and another hand-

erchief. Brinkmann had found the
glasses wrapped up in the handker-
chief on the ridge just beyond the
Deubbert farm home, along the trail
through the woods.

By this tirne the two officers had
seen so many clues that another one
didn’t raise any excitement. The
sun-glasses were an odd make, with
octave lenses and manufactured by
the Spex Company in Rochester, New
York, As a matter of routine, Dis-
trict Attorney Bloehaum contacted the
company and got the names of dealers
in Missouri who handled them. This
list was very small and included no
merchant in St. Louis or that part of
Missouri.

A week later these sun-glasses were
the only clue offering hope to the dis-
tracted investigators: The tests of the
guns failed to tab. them as belongin
to any known gangsters in and aroun
St. Louis. The St. Louis police had

PEWTER COINS; IRON BARS!

Floyd Collier's novel excuse for pases.
sion of counterfeit coins didn’t get him to
first-base when he appeared before U.S.
District Judge Fred L. Wham in East St.
Louis, Ill, recently. It got him to prison,
instead. “I was using wter quarters
and half dollars in gamb’ ing,”’ Collier, 21,
of Mt. Zion, Ky., told the court. “I don’t
think it was a serious offense to cheat
Senblers.” Evidently the judge had a

ifferent idea. He sentenced Collier to
two years in Federal prison.

checked every Pawnshop and second-
hand gun store and had failed to find
any that had sold the guns.

The murder of Paulina Deubbert
by this time had become a state-wide
sensation. The St.’ Charles County
Court had posted a reward of $1,000
and the State of Missouri, through
Governor Caulfield, had added the
sum of $500.

At the end of a week, the sheriff
and the district attorney sat in the
former’s office. The report on the
sale of sun-glasses was on their desk.
Up in Booneville, halfway across the
state and north of St. Charles, the
dealer that handled the sun-glasses
had reported the sale of a pair several
days before the murder. It seemed
like a vague lead to the two officers,
who had chased down so many clues
now that they were cynical of every-
thing about the case. “But there’s
nothing else for us to do now,” the
sheriff said. “I suppose we better
drive up to Booneville just to say we
didn’t overlook any bet.”

They drove to Booneville. Fred
Akers, the dealer who handled the sun
glasses, remembered the sale well.
“There were two men who came in:
the store,” he explained. “One was in
his forties, a rather small man. The
other was a youth, not much more
than twenty, taller and far more
rugged. They had been around here
for several weeks and were staying
at the Booneville Hotel. The night
after the murder, they were here,

but they skipped out, leaving a Buick
sedan here.’

The lead began to look hot. The
sheriff asked: “Do you know their
names?” :

“No, but I'll tell you who does.
Edith Case, a young divorcee here,
ran around with the older man and
there was talk that she was going to
marry him. I think he had arranged
to buy a house here.”

The two officers looked up Edith
Case and found her pretty, around
twenty-five, but not very talkative.
“Sure, I was going to marry Dave
Miller,” she exclaimed. “He arranged
to buy a house here. He’s a timber
buyer for Chester Hurt, who lives in
Swedesburg, down in the Ozarks.”

The sheriff said: “Thanks,” and
motioned'for the district attorney to
follow him out of the house.

Outside, the sheriff said: “This may
be hot. If this Miller was a timber
buyer, he could have been in the
Femme Osage region and could have
known the woods like a book.”

“We better check: with his em-
ployer,” the district attorney an-
swered. “Questioning this girl won't
give any further information.”

They found Chester Hurt as much
interested in locating Miller and his
companion, Norman Tanner, as the
police were.

“I don’t know what happened to
Miller,” Hurt explained. “He used
to be one of the best and most honest
log-buyers in this part of the State.
He is married, and has a family living
here. I gave him free rein to write
checks on me because he knew lum-
ber and was a good buyer. Then he

goes up to Booneville and meets a girl

there and goes haywire. He begins to
forge my name on checks. It wasn’t
exactly forgery. I gave him the right
to issue checks on me if he bought
lumber. But within the last ew
months he has issued several. thous-
ands of dollars in checks—and hasn’
bought any lumber! I am having the
police try to find him.”

“Did he ever go into the Femme
Osage country to We’ f lumber for
you?” the sheriff asked.

“He spent three months there last
year,” Hurt answered. “He knew
that country like a native.”

That was all the sheriff and the
district attorney needed—that and
the fact the sun-glasses dropped by
the killer had been purchased by
Miller in Booneville. The informa-
tion that he had been a buyer in that
hill country accounted’ for his
knowledge of the woods and the in-
formation that Paulina Deubbert kept
large sums of money in her home.

if ie search for Miller extended to
all parts of the county. His trail
was picked up going through In-
dianapolis, where officers missed. him
by seconds.

Two months passed, and Miller and
Tanner were still free. In Booneville,
the sheriff watched ail mail coming
to Edith Case. Then one day he in-
tercepted a letter from Picher, Okla-
homa, written by Miller.

The officers at Picher were con-
tacted, but Miller got away from
them. Another month passed, and
then one day Sheriff Bill Hyde, of
Buffalo, Missouri, was looking over
a bunch of pictures and came across
Miller’s picture. That morning Fred
Carlton, a farmer living south of
Buffalo, had come to the sheriff’s of-
fice with a strange story about a
nephew of his who had arrived at his

‘ 322 HISTORY OF SOUTHEAST MISSOURI.

later all that part of Lorance Township south of the road run-
esting from Greenville to Jackson was made a new township by
the name of Liberty. In May, 1848, the county court appointed
to divide the county into municipal townships was composed of a
Snider, John M. Johnson and W. W. Horrell. They formed ~
eleven townships: Lorance, Clubb, Union, German, Liberty, ~*
Hubble, Cape Girardeau, Randol, Shawnee, Byrd and Apple Creek, 4
Sbut three years later Bollinger County was organized, and the
first four and a part of the fifth were cut off. The townships
\ organized since have been White Water, in 1852 ;Welch, in 1856,
and Kinder in 1872.
> In August, 1837, the county court decided to build a new
courthouse, and Edward Criddle, Nathan Vanhorn, Ralph
Guild and Ebenezer Flinn were appointed commissioners to
NS superintend its erection. It was built of brick and stone, forty-

five feet square, two stories high with a cupola. It was occupied
until 1870, when it was destroyed by fire. In November of that
year the county court appropriated $25,000 for the building of. .

the present handsome brick structure, which was erected by
John Lansmann, of Cape Girardeau. The architect was E. D.

(s Baldwin. ~ 3 ag he ae
. The jail built in 1819 was used by the county until 1849,
~“ when a stone structure two stories high and twenty feet square
\. + was erected upon the public square west of the courthouse.
Cy William McGuire was the superintendent, and Jacob Kneibert,
Ky the contractor. This building was so badly constructed that ten
\ years later it was torn down, and the present brick jail erected.
- Oriminal Record.—The criminal record of Cape Girardeau
County is a creditable one. During a period of nearly a century
only three persons have been executed in the county. One of ~
_these was a slave, and another was brought from an adjoining
county. The first conviction on a capital charge occurred in
1828. The case came from Scott County on a change of venue,
and was that of the State against Pressly Morris for the killing
AS of Zach Wylie. The homicide was committed at a public sale at
Kelso’s. Morris was a blacksmith, and some tools used in black-
smithing were up for sale, when Wylie said to him, “ Buy them
Ne they will make a full set with those you stole in Illinois.”

HISTORY OF SOUTHEAST MISSOURI. 323

Morris resented the insult, and during the altercation stabbed
Wylie, inflicting a fatal wound. Morris was tried, convicted and
hanged. The exeoution took place in Jackson just east of the
cemetery, and was witnessed by an immense crowd. Public
opinion was against the sentence of the court, which was con-
sidered too severe. The offense had been committed in the heat
of passion, and under great provocation. Wylie was of good
family and well educated, but was a dissipated and quarrelsome
young man, while Morris was a quiet, industrious mechanic.

At the December term of the circuit court in 1832, an indict-
ment was found against Isaac Whitson for the murder of John
M. Daniel. He was convicted, and was hanged on the 30th of
January, 1833. On the day on which the murder was committed,
Whitson and Daniel had been drinking at a saloon in Jackson,
and at night started for home together. Whitson was carrying
agun. The next morning the body of Daniel was found about a
mile from town, with a bullet in it. Suspicion at once fell upon
Whitson as the murderer, and he was arrested. The evidence
against him was mainly circumstantial, but it was deemed con-
clusive. :

The only other execution was that of a slave, who had killed
another slave with an ax.

A case which created great interest came from Madison
County on achange of venue. On February 1, 1834, Valentine
Heifner shot and killed Peter Chevalier, in the town of Fred-
ericktown. He was arrested and brought to Jackson for trial.
The case was ably managed on both sides. The attorneys for
the defense were John Scott and N. W. Watkins. The prosecu-
tion was conducted by Circuit Attorney Greer W. Davis, assisted
by Johnson Renney. They were the four ablest lawyers in
Southeast Missouri at that time. The jury returned a verdict of
manslaughter, and the penalty was fixed at thirty days’ imprison-
ment and $300 fine. A new trial was secured with the same re-
sult, except that the imprisonment was increased to three months.

In 1831 there occurred two murders, which were not investi-
gated by the courts. They are closely connected with the his-
tory of the family of John Dunn, Sr., which has in itself all the
elements of atragedy. John Dunn, Sr., was an early settler, and

(22 SiW-2nd- 78!)
MOSLEY, William, blaék, hanged St. Louis, Mo., on Jan. 31, 1930,

"St. Louis, Jan. 31, - William Mosley, Negro slayer of three persons
was hanged in the city jail here at® 6 o'clock this morning. His only
complaint in the long hours before death was that he hed no friends.
"Nobody's been to see me since I've beenhere. I ain't got no
friends,' he told the Rev. John Devibliss, Catholic priest who was
with him during the last hours,

One of five electric buttons punched by deputies on signal released
the trap, but none knew which button @arried the current,
"Mosley, who was 5)} years old and over six feet in height, spent
yesterday listening to the radio installed for the day in his cell.
'The Negro was sentenced to death for killing his common-law wife
in the grocery store of Marcus Bass on September 10, 1927. He shot
and killed her, then turned the gun on 3ass and his wife, killing
them, Picking up a cheese knife he returned to his wife's body,
stabbing it thirteen times,"
JOURNAL=POST, Kansas City, Missouri, Jan. 31, 1930, page one.

"ST, LOUIS NEGRO IS HANGED#TRIPLE MURDER LRADS TO DEATH FOR WILLIAM
MOSLEY, Sh. - St. Louis, Jan, 31, - William Mosley, Sh, Negro

went to his death on the scaffold at 6:05 o'clock this morning for the
murder of three persons here in 1927, Mosley was hanged ih the city
jail, attendance being limited to necessary witnesses,

"The Negro shot and killed his common-law wife, Mildred White, and two
white persons, Mr. and Mrs, Marcus Rass, September 19, 1927, The
shooting took place in the %ass grocery store, where the Negro woman
had fled after Mosley best her. H&K He also wounded their baby.

Mr. and Mrs, Bass were slain as they attempted to flee.

"Mosley lost his final chance for life last week when,

on application for a sanity test, a commission of physicians foynd

him sane, holeding that he was feigning insanity."STAR, Kansas City,
Missouri, January 31, 1930 (2:1.)

"ALL HOPE FADES FOR MOSELY. - NEGKO SLAYFR GOES TO GALLOWS IN ST.
LOUIS THIS MORNING, - ST. LOUIS, JAN. 30 (AP)* William Mosely, 6),
Negro, tonight was awaiting his death march from a dormitory on the
sixth floor of the city jail to the gallows on the same floor, where
he is to pay with his life, sometime after 6 o'clock tomorrow morning
for the slaying of his common-law wife and two white persons. 4e had
given up all hope for a reprieve tonight."
TIMES, Kansas City, MO, 1-31-1930 (7-3)

Le gavage Fu

Se Tee

_ trial court. 7

784 Mo.

near Hermitage, in Hickory county, during
the evening of July 28, 1928, and that the de-
fendant was seen in possession of the stolen
automobile and driving the same in the town
of Cross Timbers, in Hickory county, that
evening, soon after his disappearance from
the picnic grounds, It seems hardly neces-

sary to say that this evidence is sufficient to

support the verdict in this case. Convictions,
based upon proof of the same character, have
been upheld by this court in innumerable lar-
ceny cases.

II. The information is sufficient in form
and substauce and the verdict is in approved
form.

No error appearing, the judgment is af-
firmed. '

DAVIS and COOLFY, CC., concur.

PER CURTAM. The foregoing opinion by
HENWOOD, C., is adopted as the opinion of
the court.

All of the Judges concur.

STATE v. MOSLEY. (No. 29799.)

Supreme Court of Missouri, Division No. 2.
Dee. 11, 1929. _

1. Criminal law €=589(2)—Refusal of contin-
vance for further examination as to defend-
ant’s sanity held not abuse of discretion un-
der circumstances.

In murder prosecution, refusal of continu-
ance because an affidavit showing failure to fur-

-nish defendant's attorneys with funds to have

a further examination made as to defendant’s
sanity feld not an abuse of discretion, in view
of fact that state had defendant investigated
through fair and impartial experts in charge of
city sanitarium.

2. Criminal law €=586—Application for con-
- ¢inuance Iw criminal case is for discretion of

Sustaining or refusal of an application for
continuance by defendant in criminal case is
largely within discretion of trial court.

3. Criminal law €=115!—Supreme Court will
not interfere with action on application for
continuance, unless discretion was abused.

Supreme Court will not interfere with action
of trial court on application of defendant for
continuance, unless the record shows an abuse
of diseretion.

4. Criminal law €>722'/.—Prosecuting attor-
ney’s statements as preliminary to examina-
tion and qualification ‘of jurors as to other
shooting held not error. ; ,

Statements of prosecuting attorney as pre-
liminary to examination and qualification of
jurors that defendant, at the time of shooting
and killing of person named in indictment, also
shot certain others, eld not erroneous, in that

22 SOUTH WESTERN REPORTER, 2a SERIES

it tended to show surrounding facts and circum-
stances that were admissible on theory of res
geste.

5. Criminal law €2365(1)—Homicide C>16!—
Evidence of autopsies or post mortem ex-
aminations on others killed by defendant at

same time was competent as res geste and-

pertinent to deliberation.

In prosecution for murder, the admission of
evidence on part of state developing autopsies
or post mortem examinations on bodies of oth-
ers shot by defendant at the same time as per-
son named in indictment was not error as being
competent, not only as part of res gest, but
as bearing on question of deliberation.

6. Criminal law €=1056(1)—Supreme Court
cannot consider question of error in instruc-
‘tion, where defendant failed to except thereto.

Any question of error in instructions is not
before Supreme Court, where defendant failed
to except to action of court in giving instruc-
tions, although objecting thereto, since error
cannot be predicated on instructions, unless de-
fendant excepts and preserves his exception in a
bill of exceptions. ;

7. Criminal law €>723(2)—Statement of pros-
ecuting attorney in voir dire examination of
jury that state would ask death penalty held
not error.

In prosecution for murder, statement of
prosecuting attorney during voir dire examina-
tion of jurors that state would ask, in event of a
conriction, the assessment of death penalty, held
not erroneous as being within his province in
his argument to say to jury that facts merited
death penalty, after which it was province of
jurors to exercise their. discretion.

8. Homicide €=>135(3)—Indictment for murder
was not invalidated because of allegations that
death was result of assaults and wounds In-
flicted with two lethal weapons. —

Indictment for murder in the first degree
was not invalidated by reason of allegations
that deceased died as result, and from the effect,
of assaults ‘and wounds inflicted upon ber with
two lethal weapons by defendant, any one of
which wounds were mortal and fatal.

“Appeal from St. Louis Circuit Court;
Charles W. Rutledge, Judge.

William Mosley was convicted of murder
in the first degree, and he appeals. Affirmed.

Arthur L, Wackwitz and Charles M. Clarke,

both of St. Louis, for appellant.
Stratton Shartel, Atty. Gen., and Smith B.

“Atwood, Asst. Atty. Gen., for the State.

DAVIS, C. In an indictment filed in the
circuit court of the city of St. Louis, the
grand jury charged defendant with murder
in the first degree. Tried to a jury, the ver-
dict found him guilty of murder in the first
degree, as by the indictment he stands
charged, and assessed the punishment at
death. Defendant appealed. -

The evidence adduced on behalf of the
state warrants the finding that, previous to
September 10, 1927, defendant and one Mil-

€=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

= rite “fae cto
‘Zon testes

ae 4

dred Wh:
had coha:
riage, as
proximat
tioned, ti
the city «
at No. 1
Becky, 0:
pretentic
waited c
evening :
Mildred,
store mi‘
dred car
a year ¢
with adc
signed «
been go
necessal
store an
eounter.
had bee
go home
counter.
a revo)
Mareus
ant anc
Tears
reason
been tr:
coming
also gC
store.
holding
she ra
fioor, \
the cor
The
Marcus
throug
days, ¢
bullet -
lower
shot ¥
thirtee
cause
Brooks
tions ¢
“old bor
mothe
grocer
ant be
of a
servec
stab h
the fl
defen
and ¢
The
ant’s
knew
betwe
that «
come
to thr
ion.

anh

[mo! 6 OM | NI = DeAteD 3 Cleo) NTY, NA SSO UPR |
) / '

, , \
% i.
McDONALD COUNTY
HISTORICAL ss al

ilarch 23, 1978

os Ys,

NS
Ses
fess ‘
Ba , Fa ah ae
SA . Gerson Ee Aa Vache
ae RN I ce REE ONE RS ee
it eu he A ee CS AAgr EOI Wed OR
aie wer
Bee
4 *

Mr, Watt Espy

Law Library

Box 6205

University, Alabama 351,86

Dear Mr. Espy:

Your letter was just handed to me by a deputy of this county, Why someone had
not done so before, I couldn't say. Anyway, I renenbered reading about this
case in one of our old newspapers and luckily was able to find the answer to
your question, Hope it doesn't cone too late to help,

THE PINEVILLE DEMOCRAT of Friday, July 17, 1931 reports that Joe Morgan was

sentenced to hang for the murder of his father and Aug, 3rd was set as the

date of execution, In the sane article is the following:" The only escape

for Morgan fron death lies with the Governor of the State or Judge Smith who
passed the sen¢@tence, If the execution is carried out it will be the first

in the history of McDonald County. In December 1883 J.M, Wisdon, postmaster

at Saratoga, shot and killed William Judy. He surrendered to Squire Ruark,

but claimed that the whole tragedy was an accident, Wisdom was tried and found
guilty in April 1884 ana sentenced to hang July 15, 1884. After the scaffold
had been built and all preparations for the execution made, the sentence, at
the last moment was commuted to life imprisonment by the governor,"

The sane newspaper, on Friday, August 7, 1931, reported that Joe Morgan was
saved from the gallows when Gov. Caulfield comnuted his sentence to life im-
prisonment. The article stated that Morgan had been declared insane and would
be transported to our State Hospital at Nevada, ifo, but in the event his sanity
was restored, he would be sent to prison, Apparently he was later declared sane
as he was sent to the state prison in Jefferson City, Missouri, I can't tell
you the date of his death but reel reading of it in the papers not too many
years ago, I found the obituary of his uother and her death occurred in 1974,
The obit. did not list jim as a survivor, I thought T had saved the clipping
of his death but didn't locate it. Ido know that he ated in prison,

“McDonald County was formed in 1°49 in case this is relevant,

Sincerely,

gle Adon

ella Spears
Librarian
-IcDonald. County Library
Box 305
Pineville, Missouri 61,856

1368

1. Habeas Corpus <897, 898(1)

“Abuse-of-the-writ doctrine” generally
prohibits habeas petitioner from raising
claims in subsequent habeas petition that
could have been, but were not, raised in first
federal habeas proceeding; general bar
against abusive claims also extends to succes-
sive claims that raise grounds identical to
those heard and decided on merits in previ-
ous petition. Rules Governing § 2254 Cases,
Rule 9(b), 28 U.S.C.A. foll. § 2254.

See publication Words and Phrases
for other judicial constructions and def-
initions. .

2. Habeas Corpus ¢899

Respondent in habeas proceeding bears
- initial burden of pleading abuse of the writ
and, once he or she does do, petitioner bears
burden of proving that no. abuse has oc-
curred. Rules Governing § 2254 Cases, Rule
9(b), 28 U.S.C.A. foll. § 2254,

3. Habeas Corpus ¢=899 |

Normally, once state as respondent in
habeas proceeding pleads abuse of the writ
as a defense, court must determine why issue
was not raised in earlier petition. Rules
Governing § 2254 Cases, Rule 9(b), 28
USS.C.A. foll. § 2254.

4, Habeas Corpus ¢898(2), 899

There are two types of exceptions to
general bar against successive writs for ha-
beas corpus relief: (1) to qualify for first
exception, petitioner must show cause for
failing to raise claim in earlier petition, as
well as prejudice resulting from such failure,

and (2) court may also proceed to decide -

claim on merits if defendant is. actually inno-
cent of crime itself or of sentence and, to
qualify for such exception, defendant must
prove by clear and convincing evidence that
but for constitutional error, no reasonable
juror would have convicted him of crime in

question or found him eligible for sentence at -

issue. Rules Governing § 2254 Cases, Rule
9(b), 28 U.S.C.A. foll. § 2254.

Scope of actual-innocence exception to
general bar against successive writs for ha-
beas relief is very narrow, and inquiry is not
whether trier of fact made correct guilt or

34 FEDERAL REPORTER, 3d SERIES

innocence determination, but whether it
made rational decision to convict or acquit.
Rules Governing § 2254 Cases, Rule 9(b), 28
U.S.C.A. foll. § 2254.

6. Habeas Corpus ¢=898(2)

New issues raised by habeas petitioner’s
counsel in third amended petition were not
barred by “abuse of-the-writ-doctrine”; third
amended petition was filed following remand
which was result of petitioner’s pro se motion
asking to dismiss original court-appointed
counsel on ground that counsel had: not
raised all issues that petitioner wanted raised
before district court, and purpose of remand
was to allow new counsel to plead and pres-
ent all issues together in one petition and to
ensure that district court reviewed .on the
merits all claims petitioner raised that he had
not already defaulted at time he reached
federal habeas stage. Rules Governing
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll.
§ 2254.

7. Habeas Corpus ¢690 —

In federal habeas case brought by pris- ©
oner in state custody who has been sentenced
to death, appointment of counsel is required
by statute. Comprehensive Drug Abuse
Prevention and Control Act of 1970,
§ 408(q)(4)(A), 21 U.S.C.A. § 848(q)(4)(A).

8. Habeas Corpus ¢=864(1)

_ After remanding district court’s denial of
habeas relief on merits, which remand was
based on petitioner’s pro se motion.to dismiss
original court-appointed counsel, Court of
Appeals on subsequent appeal -was . not
barred from reviewing district court’ dismiss-
al of claims that were previously adjudicated
by district court in denying relief; remand
order was entered before Court of. Appeals
reviewed substance of «district court’s deci-
sion on former petitions brought by petition-
er and original counsel, and fact that remand
was intended to allow. petitioner to obtain
new counsel and that new counsel chose to
include in amended petition some of same
claims previously pleaded did not preclude
review of district court’s disposition of re-
peated claims. Rules. Governing § 2254
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254.

1370

20. Habeas Corpus ¢=401

Federal habeas petitioner failed to es-
tablish that but for alleged ineffectiveness of
state trial counsel in capital murder case in
investigating mitigating psychological evi-
dence, jury would not have convicted him of
first-degree murder, and petitioner could not
assert actual-innocence exception to state’s
procedural bar defense.

21. Habeas Corpus ¢ 498

Federal habeas petitioner’s contention
that jury instruction in state capital murder
case defined reasonable doubt in manner that
allowed jury to convict him on lesser stan-
dard than constitutionally required -was
barred by Teaque v. Lane due to fact that
relief sought would require Court of Appeals
to create new rule; petitioner’s claim that
words “firmly convinced” in instruction
equated burden of proof with less stringent
clear and convincing standard of proof re-
quired in some civil cases was not supported
by existing precedent.

22. Homicide ¢=311

Aggravating-cireumstance _ instructions
were not unconstitutionally overbroad and
vague in state capital murder trial in which
evidence showed that victims. were bound,
gagged, and held hostage for three hours
before being shot execution-style and that
defendant. stabbed floor around victims and
sexually assaulted victims who managed to
escape; on basis of such evidence, jury could
have found that victims were subject to seri-
ous physical and mental abuse and that de-
fendant’s actions exhibited disregard for hu-
man life.

Richard Holland Sindel, Clayton, MO, ar-
gued (Connie Francis and Chery] Rafert, on
the brief), for appellant.

Michael Joseph Spillman, Asst. Atty. Gen.,
Jefferson City, MO, argued (Ronald L.
Jurgeson, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief
Judge, HENLEY, Senior Circuit Judge, and
BEAM, Circuit Judge.

34 FEDERAL REPORTER, 3d SERIES

RICHARD S. ARNOLD, Chief Judge.

This petition is Robert Anthony Murray’s
first for federal habeas corpus relief. The
murder of which he was convicted occurred
nine years ago, on December 6, 1985, in
Missouri. A jury convicted Murray of two
counts of first-degree murder under Mo.Rev.
Stat. § 565.020 (1986) for the killing of two
robbery victims, Jeffrey Jackson and Craig
Stewart, and sentenced him to death on both
counts. In this petition, Murray raises a
number of claims, all of which the District
Court rejected, and we address each in turn.
We conclude that each issue Murray raises in
this petition is either procedurally barred or
without merit for some other reason; there-
fore, we affirm.

Before addressing the merits of Murray’s
claims, we summarize the procedural history
of this case. After trial, the Missouri Su-
preme Court affirmed Murray’s convictions
and sentence on direct appeal. State v. Mur-
ray, 744 S.W.2d 762 (Mo.), cert. denied, 488
U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150
(1988). Murray then filed a state-court mo-
tion to set aside or vacate judgment and
sentence pursuant to Mo.Sup.Ct.R. 29.15,
which was denied after an evidentiary hear-
ing. The Missouri Supreme Court affirmed
the denial of post-conviction relief. Murray
v. State, 775 S.W.2d 89 (Mo.1989), cert. de-
nied, 493 US. 1098, 110 S.Ct. 1171, 107
L.Ed.2d 1073 (1990).

Murray next filed a pro se petition for a
writ of habeas corpus in the United States

~ District Court for the Eastern District of

Missouri. That Court appointed counsel to
represent Murray, and. counsel then filed two
amended: petitions. After reviewing those
petitions, the District Court issued an order
denying the writ on the merits. Murray v.
Delo, 767-F.Supp. 975 (E,D.Mo.1991). Peti-
tioner’s counsel filed a notice of appeal to this
Court.. Then, before briefing, the petitioner
filed, pro se, motions to discharge his court-
appointed counsel, for appointment of new
counsel, to remand to the District Court, and
for leave to file an amended petition. In
support of these motions, Murray argued
that the lawyer responsible for filing the two

oe geRe ee Os ee ee me oh

Federal Courts <724 .

Determination in companion case that
Minnesota statute forbidding political com-
mittees or funds from accepting aggregate
contributions from individual, political com-

mittee or political fund in amount more than.

$100 a year was unconstitutional rendered
moot political committee’s appeal from dis-
trict court’s denial of their motion for prelim-
inary injunction. M.S.A. § 10A.27, subd. 12.

Harlan M. Goulett, of Minneapolis, MN,
argued, for appellant. .

Jocelyn Furtwangler Olson, St. Paul, MN,
argued, for appellee.

Before BOWMAN ard LOKEN, Circuit
Judges, and STEVENS,** District Judge.

BOWMAN, Circuit Judge.

The Republican Victory Club and its co-
treasurers (collectively RVC) appeal the Dis-
trict Court’s denial of their motion for a
preliminary injunction. RVC sought to en-
join enforcement of the Minnesota law that
forbids political committees or funds from
accepting “aggregate contributions from an
individual, political committee, or political
fund in an amount more than $100 a year.”
Minn.Stat. § 10A.27 subd. 12 (Supp.1993).

We have now resolved, on the merits, con-
stitutional challenges made to section 10A.27
subd. 12 in a companion case, Day v. Hola-

han, 34 F.3d 1856 (8th Cir.1994), and we

have declared that subdivision to be unconsti-
tutional and unenforceable. Therefore the
present case is now moot. Accordingly, we
dismiss the appeal, vacate the order of the
District Court, and remand with instructions
that the case be dismissed. See United
States v. Munsingwear, Inc., 340 U.S. 36, 39,
71 S.Ct. 104, 106, 95 L.Ed. 36 (1950).

W
° E KEY NUMBER SYSTEM
T

**The Honorable Joseph E. Stevens, Jr., Chief
Judge, United States District Court for the West-

MURRAY v. DELO | 1367
Cite as 34 F.3d 1367 (8th Cir. 1994)

Robert Anthony MURRAY, Appellant,

—

Paul K. DELO, Appellee.
No. 91-2542.

United States Court of Appeals,
Kighth Circuit.

Submitted: April 18, 1994.
Decided Sept. 6, 1994.

State prisoner sought federal habeas re-
lief after his conviction for first-degree mur-
der and death sentence were affirmed on
direct appeal, 744 S.W.2d 762. The United
States District Court for the Eastern District
of Missouri, William L. Hungate, J., 767
F.Supp.975, denied petition, but the Court of
Appeals granted prisoner’s pro se motion to
discharge court-appointed counsel and to
have new counsel appointed. On remand,
the United States District Court for- the
Eastern District of Missouri, Donald J.
Stohr, J., denied relief, and prisoner again
appealed. The Court of Appeals, Richard S.
Arnold, Chief Judge, held that: (1) third
amended petition filed by new counsel on
remand was not subject to abuse-of-the-writ
defense; (2) prisoner failed to satisfy actual-
innocence standard in connection with his
claim that his conviction and sentence were
based. on perjured testimony; (8) evidence
warranted imposition of death penalty; (4)
evidence supported finding that venireper-
sons who indicated at some point during voir
dire possible bias toward death sentence
could nonetheless follow trial court’s instruc-
tions and consider alternative punishment;
(5) prisoner failed to satisfy actual-innocence
standard necessary for review of his ineffec-
tive counsel claim; and (6) Teaque v. Lane
barred habeas court from reviewing claim
that use of phrase “firmly convinced” in rea-
sonable doubt instruction was constitutionally
infirm.

Affirmed.

ern District of Missouri, sitting by designation.

Miijray execfeL 7-26-95 Mo

MURRAY v. DELO:
Cite as 34 F.3d 1367 (8th Cir. 1994)

9. Habeas Corpus ¢364°

Unless habeas petitioner qualified for
actual-innocence exception to procedural bar
doctrine, petitioner’s claim that his state con-
viction and sentence were based on perjured
testimony was procedurally barred. inasmuch
as petitioner’s state-court petition did not
raise such issue. .

10. Habeas Corpus ¢401

Federal habeas petitioner failed to es-
tablish that but for constitutional violation
arising out of alleged use of perjured. testi-
mony in his state murder trial, he. would not
have been convicted and sentenced to death,
and petitioner thus could not invoke actual-
innocence exception to procedural bar doc-
trine; although witnesses’ trial testimony
was not always exact or perfectly clear, ra-
tional trier of fact could have believed wit-
nesses, and after-the-fact affidavits submit-
ted by petitioner were insufficient to sustain
his claim that witnesses’ committed perjury.

11. Homicide €=357(7)

Evidence in record of capital murder
case supported death sentence, notwithstand-
ing contention in subsequent habeas proceed-
ing that defendant did not kill or attempt to

kill anyone and that he was minor participant.

in robbery that led to murder; defendant
took active role in robbery, and trial testimo-
ny indicted that he shot at least one of
victims.

12, Habeas Corpus 500.1

Record on direct appeal in state capital
murder case did not support contention in
subsequent habeas proceeding that state Su-
preme Court. did not afford defendant due
process in. giving his case proportionality re-
view required by-state law; both prosecution
and defense were aware that. proportionality
was issue on direct appeal, and were free to
argue such issue; moreover, state Supreme
Court addressed and decided issue in its
opinion. V.A.M.S. § 565.035, subd. 3.

13. Jury €=33(2.10)

Defendant has constitutional right to im-
partial sentencing jury.

1369

14. Jury <108

If juror would automatically impose
death penalty on convicted murderer, Feder-
al Constitution prohibits that juror from par-
ticipating in sentencing; issue is whether
juror’s support for death penalty would pre-
vent him or her from abiding by law and
following trial court’s instructions.

15. Jury <133

Entire record rather than individual re-
sponses is reviewed to determine whether
prospective juror was qualified.

16. Habeas Corpus ¢=769

When state trial or appellate court has
made factual finding on claim petitioner rais-
es on habeas corpus, Court of Appeals defers
to that finding if it is fairly supported. by
record. 28 U.S.C.A. § 2254(d).

17. Habeas Corpus ¢770

Whether juror is impartial is question of
fact in context of deference accorded by fed-
eral Court of Appeals in habeas case to factu-
al findings by state trial or appellate court.
28 U.S.C.A. § 2254(d).

18. Jury -<108
_ Evidence supported finding by state Su-
preme Court on direct appeal in capital mur-
der case that prospective jurors who at some
point during voir dire indicated that death
penalty was called for if person was convicted
of first-degree murder nonetheless could fol-
low trial court’s instructions and consider
alternative punishment; both prospective ju-
rors who were ultimately seated on defen-

‘dant’s jury indicted on further questioning

that they would consider alternative of life
imprisonment without parole.

19. Habeas Corpus ¢496

Evidence supported finding by state Su-
preme Court on direct appeal in capital mur-
der case that prospective jurors who at some
point during voir dire indicated possible bias
toward death penalty in case of first-degree
murder nonetheless were able to apply law
fully and to sentence defendant accordingly,
and thus that defendant was properly re-
quired to use peremptory challenges to re-
move such jurors.

984

excused from the panel, and go through
the rest of the voir dire, so she can point
out to us who that person is.” Prior to
the initial jury instructions and opening
statements, a record was made indicating
defense counsel had investigated the inci-
dent further and venireman Farroll was
able to identify venireman Van Buren,
who had already been struck for cause,
as the man who had made the comments
to her.

Murray v. State, 775 S.W.2d at 90. Again,
the factual findings of the Supreme Court
of Missouri are entitled to the presumption
of correctness established in 28 U.S.C.
§ 2254(d), and petitioner does not contend
any circumstance precludes the application
of the presumption of correctness. The
Court finds the state court’s findings are
supported by the record. Petitioner’s trial
counsel actively pursued the matter and
Farroll indicated that she alone heard Van
Buren’s comments. Thus, there is no indi-
' cation that the venire panel was “poisoned”
or biased against petitioner. Since the
Court has not found trial counsel’s per-
formance deficient with respect to this
claim, the Court need not address the prej-
udice prong of the Strickland test.

[16] Petitioner also alleges that trial
counsel was ineffective in not objecting to
the trial court submitting to the jury the
aggravating circumstance that the murders
were outrageously or wantonly violent and
that they involved torture or depravity of
mind. Specifically, petitioner contends that
this aggravating circumstance is overbroad
and vague and permits the death penalty to
be imposed in an arbitrary and capricious
manner.”

With respect to this matter, the appellate
court stated:
[T]he Court finds substantial evidence to
support the jury’s finding of the exist-
ence of the three statutory aggravating
circumstances which were submitted
with respect to each murder. The evi-
dence that Jackson and Stewart were

2. Once again, this claim is presented to this
Court as a claim of trial court error, but was
presented to the state courts as an ineffective
assistance of counsel claim, and will be con-

767 FEDERAL SUPPLEMENT

both taken into the kitchen by the [peti-
tioner] and his accomplices shortly be-
fore their lifeless bodies were found
there leaves no doubt that each of the
murders was committed while the killer
was engaged in the commission of anoth-
er unlawful homicide. The jury was jus-
tified in finding that the murders were
committed while the [petitioner] was en-
gaged in the perpetration or in the at-
tempt to perpetrate a robbery because
there was evidence that the [petitioner]
and his accomplices took Jackson’s and
Stewart’s wallets and Hennings’ and Nu-
tall’s purses; that the assailants ran-
sacked the apartment while asking for
money and guns; that the assailants,
after asking if Tracy Adams had any
guns or money with him, waited three
hours for him to arrive; and that the
assailants, while beating Jackson and
Stewart immediately before killing them,
told them “this ain’t enough.”

State v. Murray, 744 S.W.2d at 775.

Moreover, in affirming the circuit court’s
denial of petitioner’s post-conviction mo-
tion, the Supreme Court of Missouri found
that:

The record indicates that counsel raised a

general written objection to the instruc-

tion and objected orally during trial;
however, assuming arguendo that coun-
sel’s objections were insufficient, we find
no prejudice from the alleged inadequacy
of counsel. On direct appeal we found
sufficient evidence to support the in-
struction, noting that the victims were
shot execution-style after being held hos-
tage for approximately three hours, dur-
ing which time they were bound, gagged,
and beaten. [Petitioner] and his accom-
plices stabbed knives into the floor di-
rectly beside the victims, and, while the
victims were helplessly bound, sexually
assaulted two women who had also been
with the victims in the house when the
intruders arrived. Thus the evidence in-
dicated that the victims were subjected
to serious physical and emotional abuse

sidered by this Court as an_ ineffectiveness
claim. See Anderson v. Harless, 459 U.S. at 6-7,
103 S.Ct. at 277-78.

MURRAY v. DELO

981

Cite as 767 F.Supp. 975 (E.D.Mo. 1991)

premeditated murder, death was the only
punishment she would consider.

Venireperson Donnelly did not serve on
the final jury which convicted petitioner.
Thus, the only possible impact of the al-
leged error on petitioner was that he had to
use one of his peremptory challenges to
remove her. The loss of a peremptory
challenge does not constitute a violation of
the constitutional right to a fair trial. Ross
v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct.
2278, 2278, 101 L.Ed.2d 80 (1988). Thus,
petitioner cannot demonstrate actual preju-
dice relating to this claim.

[8] Petitioner’s allegation 26 challenges
the sufficiency of the indictment. Petition-
er alleges that the indictment on its face
does not conform to the statutory language
under which the defendant. was charged.

Again, the Court finds petitioner cannot
demonstrate actual prejudice for failing to
raise this claim in state court. The indict-
ment used to charge the petitioner substan-
tially tracks the format approved by the
Missouri Supreme Court and, therefore,
was proper. Mo.S.Ct.R. 23.01(e).

[9] In ground 27, petitioner states that
defense counsel failed to object to remarks
made by the prosecutor which inferred that
this case was other than a “normal murder
situation,” which prejudiced the petitioner
and inflamed the jury.

Although petitioner does not point the
Court to the actual portion of the prosecu-
tor’s argument to which he objects, the
Court notes that there was substantial evi-
dence in this case against the petitioner. It
is appropriate for counsel in his or her
argument to assist the jury in analyzing
and applying the evidence. The Court does
not find that there was actual prejudice
sufficient to overcome a procedural bar
where the evidence in the case supported
any inference by counsel that this case was
not a normal murder situation.

[10] In ground 28, petitioner asserts
that the state personalized closing argu-
ment, and petitioner’s trial counsel failed to
object to these remarks which were highly
prejudicial and inflammatory. Again, the
Court finds that petitioner cannot demon-

strate actual prejudice resulted from post-
conviction counsel’s failure to raise this
claim.

Moreover, the Court finds there was
overwhelming evidence in the case against
the petitioner. Thus, the burden of demon-
strating actual prejudice is a difficult one
which petitioner has not met.

Accordingly, the Court finds that peti-
tioner is procedurally barred from assert-
ing grounds 14, 16, 19, and 21-28. This
Court previously found petitioner’s ground
2 also was procedurally barred.

The Court will now consider the merits
of petitioner’s remaining claims. In partic-
ular, petitioner alleges that trial counsel
was ineffective in (1) failing to present
available mitigating evidence; (2) not mov-
ing to strike the venire panel and not ascer-
taining the extent of potential poisoning of
the jury after the trial court received infor-
mation that a venireperson had communi-
cated inflammatory and prejudicial infor-
mation concerning the petitioner’s guilt;
and (8) failing to object to the aggravating
circumstance instruction concerning de-
pravity of the mind, read by the trial court
to the jury.

In addition, petitioner alleges that the
trial court erred in (1) failing to remove for
cause twelve venirepersons and sustaining
the state’s motion for cause with respect to
two venirepersons; (2) failing to suppress
unconstitutionally obtained evidence; (3)
excluding petitioner’s family members
from the courtroom during trial; (4) failing
to exclude photographs depicting the bod-
ies of the victims; (5) permitting the state
to introduce into evidence a police officer’s
testimony about statements made by wit-
nesses who also testified at trial; (6) defin-
ing reasonable doubt for the jury as “doubt
based upon reason and common sense,”
and defining burden of proof as “proof that
leaves you firmly convinced of defendant’s
guilt;” (7) permitting the state to make an
opening statement during the penalty
phase of the trial where the state did not
present any evidence; and (8) denying de-
fendant’s request for a jury instruction on
conventional second-degree murder.

MURRAY v. DELO 983
Cite as 767 F.Supp. 975 (E.D.Mo. 1991)

come home. The motion court, after ob-
serving the children testify at the hear-
ing, found them incompetent as witness-
es under § 491.060, RSMo 1986, and
pointed out they would have been less
competent at the time of trial, when they
would have been between the ages of
four and six.

Murray v. State, T75 S.W.2d at 91-92.

[13,14] The above factual findings un-
derlying counsel’s performance by the
state court are entitled to a presumption of
correctness in the related federal habeas
proceeding. 28 U.S.C. § 2254(d); Patton v.
Yount, 467 U.S. 1025, 1036-38, 104 S.Ct.
2885, 2891-92, 81 L.Ed.2d 847 (1984).
While such a presumption attaches to any
facts underlying an ineffective assistance
of counsel claim, it does not apply to the
state court’s ultimate conclusion about
whether or not petitioner’s counsel ren-
dered effective assistance. Strickland,
466 U.S. at 698, 104.S.Ct. at 2070. Petition-
er does not contend any circumstance pre-
cludes the application of the presumption
of correctness, and this Court finds the
state courts’ findings supported by the
record. Upon careful consideration of the
record, the Court finds reasonable trial
counsel’s conduct in not calling petitioner’s
wife and children to testify. Trial counsel
decided as a matter of strategy not to have
petitioner’s wife testify due to concerns
about perjury and credibility. Additionally,
trial counsel did not err in not calling the
petitioner’s young children to testify as the
record suggests that the testimony would
have been used merely to gain sympathy.
As the Supreme Court of Missouri noted,
“sympathy is not a proper factor for the
jury to consider in reaching its decision as
to punishment.” State v. Clemmons, 753
S.W.2d 901, 910 (Mo. banc), cert. dented,
488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369
(1988). Since the Court has not found peti-
tioner’s trial counsel’s performance defi-
cient with respect to this claim, the Court

1. Petitioner presents this claim in his federal
habeas action as one of trial court error. How-
ever, this claim regarding the potential poison-
ing of the jury was presented to the state courts
as an ineffective assistance of counsel claim.
Accordingly, the Court will consider the claim

need not and will not address the prejudice
prong of the Strickland test for constitu-
tionally ineffective assistance of counsel.

[15] Petitioner next alleges that trial
counsel was ineffective in not moving to
strike the venire panel and not ascertaining
the extent of potential poisoning of the
sentencing jury after the court received
information that a venireperson had com-
municated inflammatory and prejudicial in-
formation concerning petitioner’s guilt.’

The record reveals that venireperson
Farroll reported that, following the first
day of the sentencing jury selection, anoth-
er venireperson, later identified as Van Bu-
ren, made statements to Farroll about peti-
tioner’s guilt and the length of penalty to
be imposed. Farroll reported the incident
the following day and was questioned out
of the presence of the other venirepersons.
The Supreme Court of Missouri found that:

[Petitioner's] counsel actively partici-

pated in the questioning and astutely

asked whether any other jurors were
present when the comments were made.

Venireman Farroll responded:

No. By the time he [Van Buren] men-
tioned this, his opinion and his experi-
ences, we were on the sidewalk far
down the building, and we were the
only two walking together to the ga-
rage at that point and rode up the
elevator together to the same level.
To the best of my knowledge[,] there
would have been no one else within
hearing.

Venireman Farroll also stated that the

comments did not have an impact on her,

although after further reflection, she
would not be able to impose the death
penalty, and the court sustained the
state’s motion to strike her for cause.

At this point, [petitioner’s] counsel con-

tinued to pursue the matter by alertly

requesting “since we don’t know who
this other person is that [Farroll] not be

only on the ineffective assistance of counsel
basis. See Anderson v. Harless, 459 U.S. 4, 6-7,
103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982). Peti-
tioner also orally argued this claim to the Court
at the hearing.

982 767 FEDERAL SUPPLEMENT

[11] In construing the constitutional re-
quirement for effective assistance of coun-
sel, the “benchmark ... must be whether

counsel’s conduct so undermined the proper |

functioning of the adversarial process that
the trial cannot be relied on as having
produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984). The
Court determines whether counsel’s per-
formance was deficient and, if so, whether
the deficient performance prejudiced the
defense. Jd. at 687, 104 S.Ct. at 2064. In
analyzing counsel’s performance, the Court
must determine whether, under all the cir-
cumstances, the “identified acts or omis-
sions were outside the range of profession-
ally competent assistance.” Jd. at 690, 104
S.Ct. at 2066. This review is highly defer-
ential for there is a strong presumption
that counsel’s conduct “falls within the
wide range of reasonable professional as-
sistance; that is, the petitioner must over-
come the presumption that, under the cir-

cumstances, the challenged action ‘might .

be considered sound trial strategy.’” Id.
at 689, 104 S.Ct. at 2065. With respect to
the duty to investigate, the Supreme Court
stated:

[C]Jounsel has a duty to make reasonable

investigations or to make a reasonable .

decision that makes particular investiga-
tions unnecessary. In any ineffective-
ness case, a particular decision not to
investigate must be directly assessed for
reasonableness in all the circumstances,
applying a heavy measure of deference
to counsel’s judgments.

Id. at 691, 104 S.Ct. at 2066.

A deficient performance alone is insuffi-
cient to find counsel was ineffective. The
Court must also find prejudice resulted
from such performance. To establish the
prejudice element, petitioner must show

there is a reasonable probability that, but

for counsel’s unprofessional errors, the
result of the proceeding would have been

different. A reasonable probability is a

probability sufficient to undermine confi-

dence in the outcome.... When a [peti-
tioner] challenges a conviction, the ques-
tion is whether there is a reasonable
probability that, absent the errors, the

factfinder would have had a reasonable
doubt respecting guilt.

Id. at 694, 695, 104 S.Ct. at 2068, 2069. In
making this determination, the Court
“must consider the totality of the evidence
before the judge-or jury.” Jd. at 695, 104
S.Ct. at 2069.

[12] Petitioner alleges that his trial
counsel was ineffective because she failed
to present available mitigating evidence at
the sentencing phase of petitioner’s trial.
Specifically, trial counsel did not call peti-
tioner’s wife and children to testify.

The Supreme Court of. Missouri con-
sidered this claim and stated:

When investigating the possibility of
having Ms. Woods [petitioner’s wife] tes-
tify, either as an alibi witness during the
guilt phase of the trial or as a witness
during the penalty stage, [petitioner’s]
counsel learned that persons Ms. Woods
contended could corroborate [petition-
er’s] alibi admitted to counsel’s investiga-
tor that [petitioner] had previously con-
tacted them and conceded his involve-
ment in the crimes.*

* * * * * *

3 When counsel informed [petitioner] about
the information she had received, [petitioner]
said he would “clear it up.” Counsel is not
ineffective for failing to present perjured testi-
mony. Allen v. State, 518 S.W.2d 170 (Mo.App.
1974). :

Counsel testified at the motion hearing
that she decided as a matter of trial
strategy not to endorse or call Ms.
Woods as a witness because of her con-
cern the state would then be able to
locate those other persons and their ex-

tremely damaging testimony.

* * * * * a

Counsel stated that she did not consider
attempting to have [petitioner’s] children
testify during the penalty stage; how-
ever, assuming arguendo that this
amounted to a breach of counsel’s pro-
fessional duty, [petitioner] failed to es-
tablish any prejudice from the alleged
deficiency. [Petitioner’s] children were
nine, seven, and six years old at the time
of the hearing, and testified that they
loved their father and wanted him to

ET eT

Paroles have no meaning for gas chambers like this one at Missouri State Prison, where rape-murderer met his fate

around the block and came back for
another look at her. He went to a gas
station nearby and asked the attendant
for directions to Kansas as his car was
being fueled. Then he drove back to the
alley where the girl was playing with a
couple of other girls. He stopped the car
and called to the one who had caught his
eye.

What followed was witnessed by
James Blade, a painter working on a
house across the alley. He later told
police: “This fellow had a road map in
his hand and apparently he asked the
girl for some directions. I heard her
reply, “I’m afraid I can’t help you.’

“TI went on with my painting until I
heard the car door open and I looked
around. The guy had grabbed the girl by
the arm and he had a pistol in his other
hand. I sawa look of terror on her face as
he pushed her into the car. Then he

grabbed her little'dog and threw him in.

the back seat and drove away.”
The painter hurried down from his
ladder and ran to the grandmother’s

38 Master Detective

house to tell her what he’d seen and
urge her to call the police right away.

_ Fortunately, he’d had the presence of

mind to get a description of the car:
white-over-blue Chevy about five years
old, with the license number SU 1-0204.
He gave his information to the police.
' Within 10 minutes after the abduc-
tion, the car’s license plate number and
description was being broadcast on Jop-
lin police radio and to the highway pat-
rols in both Kansas and Missouri.

Charlie Odom, meanwhile, had got-
ten out of the residential area in a hurry
and sped toward the northwest corner of
Joplin, a desolate area of abandoned
lead and zinc mines with huge mounds
of gravel and rock and overgrown with
thick, tangled underbrush and weeds.
He turned off onto a dirt road that dis-
appeared into the timber and under-
growth. He stopped the car in a thicket
and turned toward the terrified young
girl. _

Shoving her out of the car and into the
weeds, gun in hand, he ordered her to

take off her clothes. Then, disregarding
her screams, he forced her to the ground
and, despite her frantic struggles, raped
her.

When his lust was sated and the girl
lay sobbing on the ground, Charlie
Odom suddenly became panicky. If they
caught him for this crime . . . He shud-
dered at the mere thought of the possi-
ble consequences.

He picked up a large rock and began
beating the girl over the head with it
until she was unconscious. He never
stopped hitting her with the rock until
she lay in a pool of crimson gore.

Viewing his bloody handiwork, Char-
lie was more scared than ever, but not so
frightened that he didn’t take steps to
avoid detection. He gathered up the
rocks he’d used to beat the girl and
threw them into the back seat of his car.
He grabbed the girl’s clothes—her
shorts, panties, blouse and shoes. The
clothing, bloodstained and torn, was
under the girl and he had to shove her
body aside to get at it. He threw the

Se ee

Tattooed suspect Charlie Odom, 29, is shown in the custody of Joplin, Mo. Dets. Walter Flenner (I.) and Charles
Hickman (right rear), Odom, a parolee, was charged with the brutal rape and bludgeoning of a 13-year-old Joplin girl

) Master Detective 37

clothes into the back seat with the
bloodied rocks, then he drove rapidly
away, leaving the young girl for dead.

Joplin Detective Charles Hickman
was at headquarters when he heard the
report about the abduction and he ran
out and jumped into the first patrolcar
he found, which happened to be a new

Corvair that.had not yet been equipped

with a siren, but it did have a radio.
Hickman had a hunch that the kidnap-
per might head for the old Chitwood dis-
trict of abandoned mines, which he
knew was a much-favored Lovers’ Lane
area. By that time, every cruiser team
in the city, and in nearby Kansas, was
looking for the blue and white Chevy.

As he cruised slowly through the
mine area, Detective Hickman sud-
denly spotted the Chevy speeding along
a concrete road leading out of the area.
He took after it and was soon close
enough to read the license plate, which
told him that he had struck paydirt—it
was the kidnaper’s car!

With no siren or red rooflight, all
Hickman could do was honk his horn at
the fleeing car, which promptly ‘in-
creaded its speed. Hickman got on the
radio and broadcast a report that he had
the fugitive Chevy in sight and was pur-
suing it, adding details of the area of the
chase. .

Sergeant Jack Fay was nearby and

raced to an intersection which he
blocked with his patrolcar as Odom
came hurtling toward him. Charlie
slammed on his brakes, but too late to
avoid crashing into the sergeant’s pat-
rolcar. He sat motionless behind the
wheel, as if stunned by the impact. De-
tective Hickman pulled to a stop behind
him, and in the next instant he and
Sergeant Fay dragged Odom out of the
Chevy.

The first thing they spotted was a pis-
tol, cocked and ready to fire, half-
concealed under the Chevy’s front seat,
but Odom made no move to reach for it.

“Where’s the girl?” Detective
Hickman snapped.

“What're you talking about? I don’t
know nothing about any girl. I’m just
driving through here on my way to Wel-
lington,” Odom retorted.

He indignantly denied all knowledge
of the kidnapped teenager. He said he
didn’t stop when Hickman honked his
horn at him because he thought it was a
drag racer, not a cop. He claimed he
carried the pistol for target practice.

As for the bloody clothes and rocks in
the back seat of his car, Charlie sullenly
said he didn’t know how they got there.
Walter Flenner, who later became
police chief of Joplin, arrived and took
over the questioning, but Odom turned
sullen and silent. They decided to take
him back to the Chitwood area. Enroute
there, Flenner broadcast a request for a

search party as soon as possible. Flen-

ner and Hickman pleaded with the pris-

Victim’s clothes were found in Odom’s car, as was the pistol (arrow) he used
to threaten her into submission. He told cops: ‘All | want is another chance”

oner to tell them what he’d done with
the girl. j

“If that girl’s hurt and she lies out
there all night, you’ll have a murder rap
around your neck,” Flenner reminded
Odom. “The best thing for you to do
right now is tell us where she is.”

Odom remained as silent as the
proverbial clam. Twice as the police car
criss-crossed through piles of gravel and
underbrush it passed within a few feet
of where the young victim lay uncon-
scious in the thicket, but Odom never
uttered a word.

Augmented by volunteers from resi-
dents of the surrounding area, the
search party quickly swelled to more
than 1,000 persons, and the crowd was

in an ugly mood as it surged closer to the -

policr cruiser where Odom sat handcuf-
fed. So tense did this situation become

‘that Flenner and Hickman decided

they’d better remove the suspect to

headquarters before it got any worse.
The searchers pressed on even as

dusk descended over the area’s rough

terrain. In the minds of all lurked the
fear that if the girl were still alive, but
seriously injured, she might die if they

didn’t find her quickly.

The impasse was finally broken when
a teenager from the missing girl’s
neighborhood heard a dog bark near a
thicket which had been searched sev-
eral times. “That sounds like Happy!”
he exclaimed.

Officers pushed through the under-
growth and there, crumpled face down
in tall weeds, they found the gravely
injured teenager, with her little dog
standing guard beside her.

“My God! She must be dead!”
exclaimed Police Chief Percy Brown of
Baxter Springs, Kansas.

The young girl was nude except for
her bra. Her curly brown hair was a
tangle of blood and dirt, and she lay ina
pool of her own blood. Meanwhile, Kan-
sas Highway Patrolman Gene Kliber
had been checking for life signs and now
he said, “There’s a slight pulse, but it’s

(Continued on page 48)

Master Detective 39

No Parole from

The Gas Chamber

(Continued from page 39)

very faint, barely noticeable.”

The girl was rushed to the hospital,
where doctors who examined her held
out little hope for her recovery. But
after three hours of surgery, she still
clung to life by a thread. It would be
weeks, however, before she regained
consciousness.

When Flenner, at the police station,
heard the news, he took a new tack with
Odom. “The girl’s been found, Charlie,”
he said. “She’s alive. You'd better tell us
about it. ,

Odom slumped dejectedly in his chair.
Now he admitted forcing the girl into
his car, but he still denied raping her.

“What about those scratches on your

| back?” Flenner challenged him. “They

look like fingernail scratches.”

Odom said he didn’t know anything.
Didn’t know they were there. Didn’t
know how they got there. He and the
girl didn’t fight. Flenner asked him if he
had shot the girl with the pistol.

“I don’t know, I might have,” Odom

said weakly.

Under further persistent question-
ing, he claimed he had blacked out; he
didn’t remember anything after the girl
got into his car. He didn’t think he’d
hurt her.

The next day, Odom was positively
identified by witnesses—the gas-
station attendant he’d asked for direc-
tions to Kansas, the painter who wit-
nessed the abduction of the pretty
young girl, a couple of her playmates
who had seen Odom driving around
the block staring at her. Taken to .the
scene of the crime, Odom would only
say, “I may have been here. I can’t re-
member.”

Two days later, although still deny-
ing any recollection of the attack, he
agreed to talk with Dr. W. Jack Wilson,
pastor of the first Community Church in
Joplin and a former psychologist with
the police department of Kansas City,
Missouri. Two days after that meeting,
Odom asked to talk to the minister
again, and when that meeting was con-
cluded, Odom told Flenner he was ready
to give a complete statement.

Charlie Odom began with a recital of
the preliminaries which had led up to
the abduction. Then he stated: “After
(the attack) was over I remember I was
even more frightened and I knew I
would be in trouble if it was found out. I
remember picking up a rock and hitting
her on the head. She sort of crumpled or
sank to the ground. I hit her several
more times while she was lying on her

side on the ground.

“After I hit her I hurriedly picked up
her clothes which were lying under her.

48 Master Detective

I picked up several rocks, including the
one | hit her with. I don’t know exactly
why I picked up all these things but I do
remember thinking the police might get
fingerprints from them.

“I put all these things in the right-
hand side of my car. I apparently
changed from my brown slacks to blue
jeans. I remember how scared I was and
that I could only think of getting away
as fast as possible. I remember vaguely
driving off but I remember nothing
more until I was stopped by the police
officers who arrested me.”

Soon after giving this statement,
Charlie Odom reverted to form. In
further interviews with Detective
Flenner, he repeatedly said: “All I want
is another chance. I know I can do all
right. I just want another chance to bea
man in my own right.”

_ This approach had worked for him
many times before, with parole boards.

‘But Odom now realized it wasn’t pro-

ducing the same effect. For, while Char-
lie was pleading for “one more chance,”
his pretty victim lay unconscious in a
Joplin hospital, her hopes for a normal
life dashed by the relentless battering of
a rock. Her right arm and leg were
paralyzed. Doctors said she might never
be able to speak coherently.

Odom's trial was set to begin on
November 7, 1961, but in the months
leading up to that trial, Joplin detec-
tives dug deep into the background of
the 29-year-old man charged with the
kidnaping and brutal beating and rape
of an innocent young teenager. What
they found appalled even the most cal-
lous veteran among them.

When Charlie Odom was only 14, in
1946, he was arrested for two burglaries
in Newburg, Missouri. Since it was his
first offense, and because of his age, he
was turned over to juvenile authorities
for rehabilitation, which, the record
showed, “didn’t take.” Six months later
he was busted for the burglary of a
hardware store in which a .38 anda .45

pistol were stolen, along with ammuni-
tion. Still only 14, Charles Harvey
Odom was sentenced to a year at the

‘Missouri State Training School for Boys

at Boonville, Missouri.

There Charlie quickly established
himself as an incorrigible. In two sepa-
rate terms at the institution, he escaped
four times and was being seriously con-
sidered for transfer to the tighter con-
fines of the state prison in Jefferson
City.

In March, 1948, the then-Gov. Phil
M. Donnelly had. had enough; he or-
dered the 75 worst inmates at the re-
formatory transferred to state prison.
His action followed a series of spectacu-
lar incidents—strangulation, an at-

tempted strangulation, widespread dis- '

plays of violence, perverted sex acts and

general defiance of discipline.
Charlie Odom was beyond any doubt

one of the 75 worst inmates, but inas-

much as he had only 13 days left to serve
on his sentence, his name was deleted
from the roster of those to be transferred
to state prison. Two weeks later he was
on the street, free as a bird.

A year later, Charlie made it to the
state pen on his own, winning a five-
year rap for burglary. Two years later
his sentence was commuted, and Char-
lie was free again, but not for long. Less
than a year later, another burglary con-
viction got him a three-year sentence.

On the record, it was obvious that al-
though the parole board had not yet fi-
gured out the type of character they
were dealing with in Charlie Odom, he
read them like a book. He had figured

* out that all he had to do was “get along”

inside the walls and good behavior
would rapidly put him outside again. In
less than a year after beginning his
latest sentence, he was paroled once
more for “good behavior.” .

A few short months later, Odom was
nabbed after another burglary, tried,
convicted, and sentenced to 10 years in
the Kansas State Prison. He did six
years before his calculated “good be-
havior” in prison won him yet another
parole.

Six months after that, in July, 1961,
he committed the abduction-rape-
beating of the Joplin teenager. At his
trial for that offense in November of
that year in the court of Jasper County
Circuit Court Judge Ray E. Watson,
Charlie’s attorney strove to win the
sympathy of the jury by emphasizing
the misfortunes of his childhood.
County Prosecutor Stewart Tatum had
an answer for that.

“They talk about love and affection—
little Harvey didn’t get any love and
affection .. .” he said. “Well, you’ve got
to give before you can receive and I chal-
lenge you to name one instance where
Charlie Harvey Odom ever loved any-
thing!”

And as the trial entered its final
stages, Ben Pyle, Prosecutor Tatum’s
assistant, spoke directly to the jurors:

“Are you going to tell future Charles
Harvey Odoms that we will not tolerate
the beating of our children? You’ve got
to show everyone concerned you are not
going to allow this kind of thing to hap-
pen again.”

The defendant’s attorneys pleaded for
mercy, but the jury clearly was in no
mood for mercy. After deliberating only
40 minutes they found Odom guilty and
assessed the death penalty. Judge Wat-
son expressed his sentiments when he
told the jurors: “You have found prop-
erly.”

The usual series of appeals followed,
but Charlie Odom’s luck seemed to have
run out. Judge Floyd R. Gibson, of the
US. District Court in Kansas City, de-

Metadata

Containers:: Box 22 (2-Documentation of Executions), Folder 4
Resource Type:: Document
Description:: George Tiny Mercer executed on 1989-01-06 in Missouri (MO)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: July 1, 2019

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