Richard Strong v. Donald Roper , 737 F.3d 506 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3046
___________________________
Richard Strong
lllllllllllllllllllllPetitioner - Appellant
v.
Donald Roper
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 16, 2013
Filed: December 12, 2013
____________
Before RILEY, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
Richard Strong was convicted of two counts of capital murder and sentenced
to death. The Missouri Supreme Court affirmed the convictions and sentence on
direct appeal and later affirmed the denial of Strong’s motion for postconviction
relief. The district court1 denied Strong’s petition for a writ of habeas corpus under
28 U.S.C. § 2254. We granted a certificate of appealability on four of Strong’s
claims, and we now affirm the denial of the writ.
I. Background
On October 23, 2000, police officers were dispatched to the home of Eva
Washington following a disconnected 911 call. The officers knocked on both the
front and back doors, but no one responded. Strong eventually came to the back door,
where the officers asked about his wife and children. Strong responded that
Washington and the children were asleep. He then stepped outside and closed the
door behind him. When asked again about Washington and the children, Strong
replied that Washington was at work and the children were inside the apartment. The
officers asked to check on the children, but Strong informed them that he had locked
himself out. Strong then knocked on the door, calling for someone to open it. The
officers noticed that Strong was sweating profusely, had dark stains on the knees of
his jeans, and had blood on his hands. When no one answered, the officers kicked in
the door. Strong ran away. After he was apprehended, Strong told the officers,
“[Y]ou should have shot me, they’re both dead, I killed them.”
Inside the apartment, the officers found the bodies of Washington and her two-
year-old daughter, Zandrea Thomas. The bodies were located on the floor in the back
bedroom, where the police also discovered Washington and Strong’s three-month-old
child, who was unharmed, and a butcher knife. An autopsy revealed that Washington
had been stabbed twenty-one times and had endured five slash wounds. Zandrea had
been stabbed nine times and had endured twelve slash wounds.
1
The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
-2-
A jury found Strong guilty of two counts of first-degree murder and
recommended that Strong be sentenced to death on both counts. The trial court
imposed a sentence of death. As set forth above, the Missouri Supreme Court
affirmed Strong’s convictions and sentence, State v. Strong, 142 S.W.3d 702 (Mo.
2004) (en banc), and later affirmed the denial of Strong’s motion for postconviction
relief, Strong v. State, 263 S.W.3d 636 (Mo. 2008) (en banc). Following the district
court’s denial of Strong’s petition for a writ, we granted a certificate of appealability
on the following issues: (1) whether the denial of Strong’s challenges to the
prosecutor’s peremptory strikes of two African-American venirepersons violated
Strong’s right to equal protection; (2) whether the admission of Washington’s out-of-
court statements to a police officer that Strong had assaulted her violated Strong’s
right of confrontation; (3) whether trial counsel rendered ineffective assistance by
failing to investigate, discover, and present to the jury certain mitigating evidence;
and (4) whether the prosecutor’s use of a PowerPoint presentation during penalty
phase closing arguments deprived Strong of his right to a fundamentally fair trial.
II. Discussion
To succeed on a claim for habeas relief under 28 U.S.C. § 2254, an applicant
must show that the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). A
state court decision is contrary to the Supreme Court’s clearly established precedent
-3-
“if the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor,
529 U.S. 362, 405-06 (2000). “Under the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the correct governing legal
principle . . . but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. at 413. “In other words, it is not enough for us to conclude that, in our
independent judgment, we would have applied federal law differently from the state
court; the state court’s application must have been objectively unreasonable.” Rousan
v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). A state court’s findings are entitled to
a presumption of correctness, and the petitioner has the burden of rebutting the
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A. Peremptory Strikes
During jury selection, the prosecutor used peremptory strikes to remove from
the jury pool Sylvia Stevenson and Luke Bobo, both of whom are African American.
Strong, who also is African American, challenged the peremptory strikes under
Batson v. Kentucky, 476 U.S. 79 (1986). After hearing the prosecutor’s race-neutral
reasons for the strikes, the trial court overruled Strong’s objections. On direct appeal,
the Missouri Supreme Court applied Batson and determined that the trial court did not
err in denying Strong’s challenge to the state’s peremptory strikes of Bobo and
Stevenson. The federal district court denied habeas relief on this ground, concluding
that the state courts had reasonably determined that the prosecutor’s reasons were not
pretext for discrimination.
“[T]he Equal Protection Clause forbids the prosecutor to challenge potential
jurors solely on account of their race[.]” Batson, 476 U.S. at 89. Batson established
-4-
a three-step inquiry to determine whether a prosecutor exercised peremptory strikes
in violation of the Equal Protection Clause:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. Second, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question. Third, in light of the parties’
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citations omitted). “Within this
framework, the defendant may rely on ‘all of the circumstances that bear upon the
issue of racial animosity’ to show purposeful discrimination.” Cole v. Roper, 623
F.3d 1183, 1188 (8th Cir. 2010) (quoting Snyder v. Louisiana, 552 U.S. 472, 478
(2008)). “Striking a black panelist for reasons that apply ‘just as well to an
otherwise-similar nonblack who is permitted to serve’ is evidence tending to prove
purposeful discrimination.” Edwards v. Roper, 688 F.3d 449, 454 (8th Cir. 2012)
(quoting Miller-El v. Dretke, 545 U.S. 231, 241 (2005)).
“Whether a peremptory strike was motivated by race is ultimately a question
of fact.” Taylor v. Roper, 577 F.3d 848, 854 (8th Cir. 2009) (citing Dretke, 545 U.S.
at 240). Strong argues that the Missouri Supreme Court’s decision involved an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. See 28 U.S.C. § 2254(d)(2). Strong’s petition can be granted only
if “it was unreasonable to credit the prosecutor’s race-neutral explanations for the
Batson challenge.” Rice v. Collins, 546 U.S. 333, 338 (2006).
1. Venireperson Stevenson
We first consider Strong’s claim regarding the peremptory strike of Stevenson.
Stevenson indicated on the juror questionnaire that she had no minor children. When
-5-
the prosecutor asked during voir dire whether anyone had a relative who had been
convicted of a crime, Stevenson responded that her brother had been convicted of
stealing and was imprisoned. She stated that her brother’s circumstances would not
prevent her from being fair and impartial. Stevenson later told the court that a
member of her church worked for the state as a manager for the division of family
services and that her niece counseled inmates. When asked whether she would be
able to consider equally the punishment of death and life imprisonment, Stevenson
replied in the affirmative:
I think it’s circumstantial, too. You can’t make a decision without
hearing the facts, so my opinion, if the facts say so, then I wouldn’t have
a problem with it. But if the facts don’t say it, I cannot go that route.
Over Strong’s objection, the prosecutor struck Stevenson from the jury pool. The
prosecutor offered the following reasons for his decision: that Stevenson appeared
particularly unhappy about sequestration; that she did not have young children or
contact with young children; that her demeanor suggested that she was uninterested;
that she had a brother in prison; that “she was particularly weak on the death
sentence”; and that she mentioned church and religion. The court found those
reasons to be race neutral.
Defense counsel responded that Stevenson was similarly situated to Kimberly
Keachie, a Caucasian woman who did not have children, whose friend had been
convicted of manslaughter, and who was not struck. Counsel went on to list other
individuals who remained in the jury pool, despite having no minor children. Defense
counsel disagreed that Stevenson was weak on the death penalty, saying, “[M]y
recollection and notes indicate that she was quite willing and responsive to the
question of the death penalty[.]” The prosecutor then countered that “although
[Keachie] doesn’t have young children, she is very young, she is a teacher and works
-6-
with children.” He further argued that the only characteristic Stevenson shared with
the other jurors defense counsel listed was a lack of young children.
The trial court agreed that Stevenson had demonstrated “physical disdain”
when she learned that the jury might be sequestered, noting that Stevenson’s reaction
was “much stronger than any other individual on the jury panel.” The trial court also
determined that whether a juror had young children was an “extremely important
factor” because the trial involved the alleged murder of a two-year-old child. The
court thus credited the prosecutor’s reasons for distinguishing Stevenson from the
other jurors who did not have children. On direct appeal, the Missouri Supreme
Court concluded that “the totality of the circumstances establishes that the trial court
did not clearly err by allowing the prosecutor’s peremptory challenge of venireperson
Stevenson.” Strong, 142 S.W.3d at 714.
Strong has not shown that it was unreasonable to credit the prosecutor’s race-
neutral reasons for striking Stevenson. The trial court found at least two of the
prosecutor’s reasons persuasive: Stevenson’s reaction to sequestration and her lack
of minor children. Strong does not dispute that a prosecutor could reasonably strike
a juror based on her negative reaction to sequestration. He argues instead that
Stevenson did not have any such reaction. He contends that “no record was made of
Ms. Stevenson’s body language or facial expressions at the time sequestration was
discussed[,]” that Stevenson did not say that sequestration would impose an undue
hardship, and that Stevenson’s reaction did not cause the prosecutor to ask Stevenson
how she felt about being sequestered. Appellant’s Br. 22-23. But the trial court
witnessed Stevenson’s reaction and found that she had exhibited physical disdain.
See Snyder, 552 U.S. at 477 (“[D]eterminations of credibility and demeanor lie
peculiarly within a trial judge’s province[.]” (internal quotation marks and citation
omitted)). Strong has not shown that the trial court’s finding was unreasonable. With
respect to the second reason, Strong does not dispute that the prosecutor could
reasonably strike a juror who did not have young children. He contends that the
-7-
prosecutor’s decision to strike Stevenson, while allowing Keachie to serve, however,
is evidence of discrimination. Based on the voir dire record, it was not unreasonable
for the trial court to find that the distinctions drawn between Stevenson and Keachie
were legitimate. Keachie was a teacher who worked with young children. Strong
argues that “no one knows whether [Stevenson] had occasion to be around children,”
Appellant’s Br. 25, but the record’s silence as to whether Stevenson spent time with
children does not render unreasonable the trial court’s determination that the
prosecutor’s strike was not motivated by race.
2. Venireperson Bobo
We next consider Strong’s claim regarding the peremptory strike of Bobo, who
listed his occupation as assistant dean/director of Covenant Seminary. During voir
dire, Bobo told the court that he had a second cousin who had been convicted of
murder and was incarcerated. Bobo said that his cousin’s conviction would not
prevent him from being fair and impartial because he was “so far removed” from it.
When asked whether he was “so far removed from [his cousin’s conviction] that [he
did not] know whether or not the sentence [his cousin] received was considered fair
or not[,]” Bobo initially responded, “Well, of course his mother believes that he was
set up.” Bobo later said that he knew so little about the case that he did not know
whether the sentence his cousin received was fair. Bobo stated that he would be able
to consider the evidence and declare a punishment of death or life without parole.
The prosecutor exercised a peremptory strike to remove Bobo from the jury pool. In
response to Strong’s Batson objection, the prosecutor offered the following reasons
for his decision to strike Bobo: that Bobo was the assistant dean of a seminary, that
Bobo’s cousin was in prison, and that Bobo was not strong on the death penalty.
After the court found those reasons to be race neutral, defense counsel argued
that the reasons were pretextual because the prosecutor had not used a peremptory
strike on Martin McCabe, a Caucasian juror who had retired from teaching at a
-8-
parochial school. In response, the prosecutor distinguished “being a teacher at a
school with a religious affiliation [from] being the dean of an institution that trains
religious personnel.” The prosecutor maintained that he did not want very religious
people on the jury. He further argued that, unlike McCabe, Bobo had a cousin who
was in jail for murder. The trial court concluded that Bobo and McCabe were not
similarly situated because being a teacher at a parochial school is “an extremely
different situation than being the director, assistant dean of a seminary that is actually
teaching individuals to go into [a religious vocation]” and because McCabe did not
have a family member in jail for murder. In denying the Batson challenge, the court
also found that the prosecutor himself was credible. On direct appeal, the Missouri
Supreme Court found no clear error in the trial court’s ruling.
Strong has not shown that it was unreasonable to credit the prosecutor’s race-
neutral reasons for striking Bobo. Although he argues that the prosecutor’s decision
to strike Bobo while allowing McCabe to serve constitutes evidence of purposeful
discrimination, he has not rebutted the trial court’s finding that Bobo and McCabe
were not similarly situated. Strong further argues that the prosecutor’s reasons for
striking Bobo are implausible and unpersuasive. According to Strong, Bobo’s
statements during voir dire indicated that he could impose either the death penalty or
life imprisonment and that his cousin’s conviction and imprisonment would not affect
Bobo’s decision. Accordingly, he contends that the record refutes the prosecutor’s
claims that Bobo was too religious to serve on the jury, that Bobo’s judgment might
be affected because he had a relative in prison, and that Bobo was not strong on the
death penalty. Strong essentially asks us to reweigh the evidence and find in his
favor, which is not ours to do. Strong has not shown that the trial court unreasonably
determined that the prosecutor’s strike was not motivated by race.
-9-
3. Peremptory Strikes Based on Religion
Strong argues in passing that the dismissal of potential jurors because they are
religious violated his rights under the Missouri Constitution and the Constitution of
the United States. Strong did not preserve this issue for appellate review in the state
courts, the issue was not certified for appeal, and he did not cite any law to support
his argument. See Strong, 142 S.W.3d at 713, 714 (holding that Strong did not
preserve the issue for appellate review); see also Strong, 263 S.W.3d at 646
(considering Strong’s claim “that trial counsel was ineffective for failing to raise
religion-based Batson challenges”). We thus will not consider it.
B. Admission of Washington’s Statements to the Police Officer
During the penalty phase of trial, the state presented evidence that Strong had
physically abused Washington during their relationship. A police officer testified that
he was dispatched to Washington’s apartment at 11:30 p.m. on November 10, 1999,
following a 911 call. When he arrived, Washington was “crying, shaken, visibly
upset, borderline hysterical.” She had a knot on her forehead, her left eye was
bruised, and she had urinated on herself. When the prosecutor asked whether
Washington had said anything as the officer approached, the officer responded that
“she claimed [Strong] hit me, he hit me in the eye, and he hit me in the mouth, and he
choked me until I passed out.” Strong did not object to the admission of
Washington’s statement.
On direct review, Strong argued that the admission of Washington’s statement
violated the hearsay rule. The Missouri Supreme Court held that the trial court
properly admitted the statement as an excited utterance. Although the United States
Supreme Court had issued its opinion in Crawford v. Washington, 541 U.S. 36
(2004), before Strong’s direct appeal was decided, the Missouri Supreme Court did
not apply Crawford to determine whether Washington’s statement should have been
-10-
excluded. On habeas review, the federal district court applied Crawford and denied
Strong’s claim for relief.
In Crawford, the Supreme Court held that the Confrontation Clause bars the
introduction of testimonial statements by a witness who did not appear at trial and
whom the defendant did not have an opportunity to cross examine. 541 U.S. at 68.
The Court declined to provide a “comprehensive definition of ‘testimonial[,]’”
acknowledging that its refusal to do so “will cause interim uncertainty.” Id. at 68, 68
n.10. “Whatever else the term covers, it applies at a minimum to prior testimony at
a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Id. at 68.
Strong argues that Washington’s statements were testimonial and thus should
have been excluded. When the state supreme court adjudicated Strong’s claim in
2004, however, Supreme Court precedent had not established whether an excited
utterance made in the presence of a police officer was testimonial. As set forth above,
the Supreme Court had “specifically left ambiguous the definition of ‘testimonial[.]’”
United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004); see United States v.
Brun, 416 F.3d 703, 707-08 (8th Cir. 2005) (applying Crawford and holding that a
crime victim’s statements to an officer were not testimonial because they were excited
utterances and the interaction was “unstructured, and not the product of police
interrogation”). Moreover, Washington’s statements were made in circumstances
different from those in Crawford, in which the statements were made during a police
interrogation while the witness was in police custody, had been read her Miranda
warnings, and was questioned by a detective. Washington’s statements, on the other
hand, were made as the officer approached her apartment. There is no indication that
the officer had asked Washington any questions. The adjudication of Strong’s claim
thus did not result in a decision that was contrary to clearly established federal law.
The definition of testimonial was not clearly established, and the Missouri Supreme
Court was confronted with facts that were materially different from Crawford.
-11-
Strong argues that we should consider Hammon v. Indiana, the companion case
to Davis v. Washington, 547 U.S. 813 (2006), in deciding whether the Missouri
Supreme Court’s decision was contrary to clearly established federal law. Hammon
was decided two years after the Missouri Supreme Court denied Strong’s direct
appeal. We thus decline to consider it because we “measure state-court decisions
‘against [the Supreme] Court’s precedents as of the time the state court renders its
decision.’” Greene v. Fisher, 132 S. Ct. 38, 44 (2011) (emphasis omitted) (quoting
Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011)).
C. Defense Counsel’s Investigation and Presentation of Mitigating Circumstances
1. Factual and Procedural Background
Attorney Bradley Dede represented Strong at trial. Dede was an experienced
criminal defense attorney, who had served as lead counsel on five or six capital cases
and worked on several others. His firm had taken Strong’s case on a $15,000
retainer, which covered legal fees but did not cover costs related to experts. Attorney
Patrick Malone assisted Dede on Strong’s case and filed his appearance in January
2001. At that time, Malone had been practicing law for about a year, had limited trial
experience, and had not worked on a capital case.
In early 2001, the court granted defense counsel’s motion for a psychiatric
examination under Missouri Revised Statutes § 552.020. John Rabun, M.D., a
certified forensic examiner, attempted to evaluate Strong on two separate occasions,
but Strong declined to be interviewed. Accordingly, the court ordered that Strong be
admitted to the Fulton State Hospital for a period of observation. Thereafter, Dr.
Rabun submitted to the court his opinion that Strong “had the capacity to know and
appreciate the nature, quality and wrongfulness of his conduct” and that Strong “had
the capacity to form the intent as charged.” Rabun reported that “following two
weeks of inpatient observation, the staff at Fulton State Hospital did not uncover any
-12-
signs or symptoms to suggest that Mr. Strong is mentally ill.” Strong “presented no
behaviors consistent with a mental disorder. Rather, Mr. Strong interacted
appropriately at the hospital.”
While he was hospitalized, Strong “did not endorse any symptoms suggestive
of a serious medical or neurological disorder, including seizures.” His physical and
neurological examinations were free of pathology. Strong also did not report any
anxiety or depression. Moreover, Strong told a nurse “that he had never had any
problems with ‘voices at any time.’” Dr. Rabun diagnosed Strong as having varicose
veins, but found no psychological or personality disorders. According to Dr. Rabun’s
report,
This examiner canvassed the progress notes in Mr. Strong’s medical
record to look for any possibility of a mental disorder. Mr. Strong was
described in the progress notes as “very polite, calm, and focused.” His
only medical complaint concerned his varicose veins in both lower
extremities. He had no problem with his sleep or appetite at Fulton
State Hospital. He indicated several times that he had never sought nor
received any psychiatric treatment. In addition, he did not endorse a
family history of psychiatric illness.
Dede testified that he had discussed Dr. Rabun’s report with Strong and Strong’s
family, but did not retain any other doctor to evaluate Strong.
Dede also testified that he did not hire a mitigation specialist to prepare for the
penalty phase of Strong’s trial. He and Malone worked together to develop Strong’s
case for mitigation. Dede decided that he would try to portray Strong as a person who
“was able to reason and care and -- and do good things for people” and contrast the
“bizarre behavior” of Strong’s criminal acts with his otherwise good behavior. Dede
testified that Strong did not cooperate in the preparation of his defense and that
-13-
“most, if not all, of the information that I got to try to help [his defense] didn’t come
from him.”
Malone testified that he and Dede discussed mitigation throughout Strong’s
case. According to Malone, Dede explained the law and what types of evidence
could be considered mitigating evidence. In the month or so before trial, Malone
interviewed potential mitigation witnesses and wrote interview summaries. Malone
did not recall asking the witnesses about Strong’s childhood. The state had provided
defense counsel the records that it had gathered on Strong from jail, work, and school.
Dede testified that a report from the staff at Fulton State Hospital indicated that
Strong had denied any history of mental, physical, or sexual abuse. Moreover, Dede
had developed a good relationship with Strong’s mother, whom he had met several
times. Neither Strong nor his mother told Dede about any history of abuse in the
family.
Fifteen witnesses testified on Strong’s behalf during the penalty phase of trial,
including several of Strong’s family members. Their testimony supported Dede’s
theory of mitigation: that Strong was a good person who had done good things and
whose violent actions were an exception to his mostly good behavior.
In the state postconviction proceedings, Strong alleged that his attorneys were
ineffective for “failing to present evidence of Mr. Strong’s complete social history
and an explanation of how that social history impacted his behavior throughout his
life and on the day of the murders.” Strong, 263 S.W.3d at 652. Postconviction
counsel’s investigation revealed that Strong’s basic needs often were not met during
his childhood. Strong’s mother entered into relationships with abusive men, and his
father had abandoned the family before Strong was born. Strong’s brothers
sometimes locked him in a closet. The family lived in squalor in violent
neighborhoods. They moved repeatedly. Strong claimed that he was sexually abused
by a babysitter when he was five and by a stranger when he was twelve.
-14-
Postconviction counsel discovered that Strong suffered from seizures or spells, had
low intellectual functioning, and had a family history of mental illness. Strong argued
to the Missouri Supreme Court that “[the] evidence would show that his violent acts
were the result of a violent, abusive, and traumatic life.” Id. Strong further argued
that counsel “should have called experts such as Dr. Wanda Draper and Dr. Marilyn
Hutchinson during the penalty phase to explain that the murders were caused by the
uncontrollable mental illness Mr. Strong suffered due to his impoverished childhood
filled with neglect, violence, and abuse.” Id. at 653.
The Missouri Supreme Court rejected Strong’s claim of ineffective assistance
of counsel. The court determined that Dede had conducted a thorough investigation
into mitigation evidence and that he acted reasonably when he decided that “the best
strategy was to show Mr. Strong as a good man, able to do good things—not to blame
Mr. Strong’s actions on a bad childhood.” Id. According to the Missouri Supreme
Court, “[t]he record demonstrates a thorough investigation by trial counsel into
mitigation evidence and, given the information received from his investigation, he
proceeded in a reasonable manner.” Id. On habeas review, the district court
determined that the Missouri Supreme Court had reasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), to the facts of Strong’s case.
2. Discussion
The Counsel Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence.” The Supreme Court long has recognized that the “right to counsel
is the right to effective assistance of counsel.” Strickland, 466 U.S. at 686 (quoting
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). “A convicted defendant’s
claim that counsel’s assistance was so defective as to require reversal of a conviction
or death sentence has two components.” Id. at 687. The defendant must show that
-15-
counsel’s performance was deficient and that the defendant was prejudiced by the
deficient performance. Id.
To prove that counsel’s performance was deficient, the defendant must show
“that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. “Judicial scrutiny of
counsel’s performance is highly deferential, indulging a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional judgment.”
Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir. 2006). On appeal from the
denial of habeas relief, Strong’s claim is governed by both Strickland and AEDPA.
Accordingly, our review of the Missouri Supreme Court’s decision “is twice
deferential: we apply a highly deferential review to the state court decision; the state
court, in turn, is highly deferential to the judgments of trial counsel.” Nooner v.
Norris, 402 F.3d 801, 808 (8th Cir. 2005). “When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, 131 S. Ct. 770, 788 (2011).
Strong argues that the state supreme court unreasonably applied Strickland
when it held that Dede’s penalty phase strategy was based on an adequate
investigation. “[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691. We measure counsel’s performance “against an objective standard
of reasonableness,” and “hindsight is discounted by pegging adequacy to counsel’s
perspective at the time investigative decisions are made, and by giving a heavy
measure of deference to counsel’s judgment[.]” Rompilla v. Beard, 545 U.S. 374,
380 (2005) (internal quotation marks and citation omitted). Strong contends that
counsel’s pursuit of a so-called good guy defense was based on an inadequate
investigation into Strong’s childhood and mental health.
-16-
a. Family and Social History Investigation
Strong argues that trial counsel was ineffective for failing to investigate
adequately his background and pursue a mitigation strategy that included evidence
of his troubled childhood. Strong maintains that Dede delegated the entire
investigation to Malone, who was inexperienced and who began the mitigation
investigation during the month before trial. He also argues that counsel failed to
investigate other sources that might have provided insight into Strong’s background,
like medical records, mental health records, or employment records.
Strong compares his case to the Supreme Court’s decisions in Williams v.
Taylor, 529 U.S. 362 (2000), and Wiggins v. Smith, 539 U.S. 510 (2003).2 In both
cases, the Court held that trial counsel’s performance was deficient because they did
not fulfill their obligation to conduct a thorough mitigation investigation. In
Williams, “counsel did not begin to prepare for [the penalty] phase of the proceeding
until a week before the trial.” 529 U.S. at 395. They failed to discover “extensive
records graphically describing Williams’ nightmarish childhood, not because of any
strategic calculation but because they incorrectly thought that state law barred access
to such records.” Id. Moreover, counsel did not seek prison records that would have
shown that Williams helped crack a prison drug ring, nor did they pursue the
testimony of a prison official who described Williams as among the inmates “least
likely to act in a violent, dangerous or provocative way.” Id. at 396. Counsel failed
even to return a call of a certified public accountant who knew Williams through a
prison ministry program and who had offered to testify on Williams’s behalf. Id.
2
Strong also compares his case to Porter v. McCollum, 558 U.S. 30 (2009) (per
curiam). Porter was decided after the Missouri Supreme Court denied Strong’s
motion for postconviction relief. Accordingly, although we find
Porter distinguishable, we limit our analysis “to the law as it was ‘clearly established’
by [Supreme Court] precedents at the time of the state court’s decision.” Worthington
v. Roper, 631 F.3d 487, 498 n.5 (8th Cir. 2011) (quoting Wiggins, 539 U.S. at 520).
-17-
Similarly, in Wiggins, “counsel abandoned their investigation of petitioner’s
background after having acquired only rudimentary knowledge of his history from a
narrow set of sources.” 539 U.S. at 524. The records counsel had obtained—a
presentence investigation report and city service records documenting the defendant’s
placements in the state foster care system—revealed significant leads that counsel
nonetheless failed to pursue. Id. at 525.
The investigation into Strong’s background was far more thorough than the
constitutionally inadequate investigations in Williams and Wiggins. Both Dede and
Malone worked on Strong’s case for mitigation. Malone interviewed potential
mitigation witnesses in the month before trial, but Dede’s investigation began long
before then.3 Although Strong argues that counsel failed to investigate documentary
evidence of Strong’s background, Dede obtained Strong’s school records from
Strong’s mother and Strong’s jail records, work records, and school records from the
state. Strong does not argue that those documents revealed leads that counsel did not
follow, nor does he argue that the documents discovered during postconviction
proceedings revealed significant information about Strong’s childhood. Strong
argues instead that counsel’s investigation must have been deficient because counsel
failed to discover that Strong was abused as a child and grew up in an impoverished,
dangerous environment. According to Dede, he investigated Strong’s background,
but the description of Strong’s background that came to light after his conviction was
completely different than the background Dede had learned of before trial.
Based on the evidence Dede discovered, it is at least arguable that a reasonable
attorney could decide to forgo further inquiry into Strong’s childhood. Neither
Strong nor his mother told Dede that Strong was physically or sexually abused. Dede
3
Strong views the preparation for the penalty phase as separate from the
preparation for the guilt phase, but it appears that Dede worked on both phases as he
readied himself for trial.
-18-
testified that he inquired about Strong’s childhood and any abuse, although he could
not remember specific questions that he had asked of Strong or Strong’s mother.
When postconviction counsel asked Dede a series of questions about whether he
knew of certain physical and sexual abuse acts that occurred within Strong’s family
or whether he knew that Strong’s mother had engaged in prostitution to provide for
the family, Dede responded, “Quite to the contrary. There was nothing that I recall
that was presented to indicate that the family had any of those sorts of -- actions. . . .
I wouldn’t say necessarily an intact family, but there were none of those sort of
extraordinary events which occurred.” Dede later testified—after being asked about
Strong’s mother’s relationships with abusive men—that “everything that you’ve told
me, to the best of my recollection, paints an entirely different picture of what was told
to me.” According to Dede, there was no indication that “there was anything in . . .
[Strong’s] childhood . . . that would have led to anything.” Dede remembered
Strong’s mother as a “hardworking, conscientious mother.” He further testified that
he had reviewed records wherein Strong had denied any physical or sexual abuse. In
light of the evidence counsel’s investigation revealed, Dede reasonably decided to
employ a mitigation strategy that contrasted the events of October 23, 2000, with the
otherwise generous, helpful, hardworking, and loving person, whom the mitigation
witnesses knew and cared for. The Missouri Supreme Court did not unreasonably
apply federal law when it held that counsel had conducted an adequate mitigation
investigation.
b. Mental Health Investigation
Strong argues that the Missouri Supreme Court unreasonably applied
Strickland when it held that Dede’s investigation into Strong’s mental health was
constitutionally adequate. We disagree. When Dede decided against hiring an expert
to evaluate Strong, he knew that Strong had denied having any personal or family
history of psychiatric illness. He also knew that Strong had denied having seizures
and that Strong’s neurological examination was free of pathology. Dede had studied
-19-
Dr. Rabun’s report, which indicated that Strong did not show signs of mental illness
or personality disorders. He also discussed the report with Strong and Strong’s
family. Dede testified that although he had considered retaining an expert to
complete a psychiatric evaluation of Strong, he decided against doing so after
discussing the matter with his client. Strong argues that Dede’s “reliance on a court-
appointed mental health expert . . . cannot be deemed a reasonable investigation into
potential mental status mitigators.” Appellant’s Br. 44. While Dr. Rabun’s report
served as the most thorough evidence of Strong’s mental health, Dede investigated
other sources of information, including records on Strong from jail, work, and school.
Dede’s investigation revealed that Strong’s mental health was sound, and it is at least
arguable that a reasonable attorney could decide to forgo further inquiry into Strong’s
mental status.
Strong contends that Dede should have completed a more thorough mental
health investigation based on a notation in Strong’s jail records indicating a family
history of schizophrenia. Strong compares his case to Rompilla v. Beard, 545 U.S.
374 (2005). In Rompilla, trial counsel knew that the prosecutor planned to introduce
evidence of the defendant’s prior conviction at sentencing, but nonetheless failed to
analyze the readily available court file on the conviction. Id. at 385-86. The Supreme
Court held that counsel’s performance was deficient and that the petitioner suffered
prejudice. “[I]t is uncontested they would have found a range of mitigation leads that
no other source had opened up.” Id. at 390. In contrast to the situation in Rompilla,
however, reasonable attorneys could disagree on whether the lead that counsel
allegedly missed—a psychologist’s note stating that Strong had reported that his
grandmother and aunt suffered from schizophrenia—required counsel to undertake
further investigation, when there was no indication that Strong himself suffered from
mental illness.
In light of Dede’s adequate investigation into Strong’s mental health, Dede’s
decision not to delve further fell within the range of professionally reasonable
-20-
judgments. The Missouri Supreme Court thus did not unreasonably apply federal law
when it held that counsel acted within his discretion when he decided against hiring
mental health experts and presenting expert evidence.
c. American Bar Association’s Guidelines
Strong argues that counsel failed to follow the American Bar Association’s
(ABA) Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases, which calls for the defense team to include a mitigation
specialist and an individual qualified to screen the defendant for mental or
psychological disorders or impairments. The Supreme Court has emphasized,
however, that the ABA standards serve only as guides to determining what is
reasonable, for “[n]o particular set of detailed rules for counsel’s conduct can
satisfactorily take account of the variety of circumstances faced by defense counsel
or the range of legitimate decisions regarding how best to represent a criminal
defendant.” Strickland, 466 U.S. at 688-89. As set forth above, the Missouri
Supreme Court reasonably concluded that counsel’s investigation was
constitutionally adequate. We thus cannot say that Dede’s decision to structure the
defense team as he did fell outside the range of legitimate decisions.
D. PowerPoint Presentation During Prosecutor’s Penalty Phase Closing
Arguments
Over defense counsel’s objection, the prosecutor displayed a PowerPoint
presentation during the state’s penalty phase closing argument. The presentation was
shown on a five-foot-by-five-foot screen and began with a full screen photograph of
the murder weapon, a bloody butcher knife. It went on to show nineteen photos of
the victims that were taken during the autopsies and showed the wounds that they
had suffered. The autopsy photos did not cover the full screen. Instead, individual
photos were layered on top of the photo of the murder weapon, until the screen was
-21-
covered and all of the autopsy photos were displayed. The screen then went blank
and the presentation continued with a photo of Washington when she was alive, a
photo of Zandrea when she was alive, and Strong’s mug shot, together on the same
screen. In closing, a full screen photograph depicted the crime scene, showing the
bodies of Washington and Zandrea lying together on the floor. The final slide placed
Strong’s mug shot onto the lower right corner of the photo of the crime scene. Of the
photos used in the presentation, only the ones showing the victims when they were
alive had not been admitted as evidence.
On direct appeal, Strong challenged the admission of the autopsy photos during
the guilt phase, as well as the showing of the PowerPoint presentation during the
state’s penalty phase closing argument. In holding that the disputed photos were
admissible, the Missouri Supreme Court concluded that “each photo was
independently relevant and assisted the jurors in some respect to show the scene of
the crime, the victims’ identities, the nature and extent of the wounds, the condition
and location of the bodies, or Strong’s mental state at the time of the murders.”
Strong, 142 S.W.3d at 716. With respect to the PowerPoint presentation, the state
argued that it helped prove the statutory aggravating factor that the murders were
“outrageously or wantonly vile, horrible or inhuman” in that they involved “torture,
or depravity of mind.” Mo. Rev. Stat. § 565.032.2(7). The jury was instructed that
it could “make a determination of depravity of mind” only if it found that Strong had
“committed repeated and excessive acts of physical abuse” upon the victims and that
the killings were thus “unreasonably brutal.” MAI-CR 3d 313.40. The Missouri
Supreme Court held that the trial court had not abused its discretion in allowing the
state to show the presentation to the jurors.
Strong argues that he was denied a fair trial because the PowerPoint
presentation caused the jury “to decide the appropriate penalty based on emotion,
rather than reason and the evidence as presented.” Appellant’s Br. 58. He argues
that, even if the individual photos were admissible, the projection of the photos onto
-22-
a screen and in a montage, “superimposing the photos over one another, and placing
a mugshot of Strong over the top of the photos, still violated Strong’s right to due
process.” Id. at 56.
The Missouri Supreme Court determined that “Strong fail[ed] to establish that
the slide presentation during the penalty phase prompted the jury to act other than on
the basis of reason.” Strong, 142 S.W.3d at 716. Its holding was neither contrary to,
nor an unreasonable application of, clearly established federal law. It answered in the
negative the relevant question whether the prosecutor’s conduct “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
Even if the PowerPoint presentation should not have been shown to the jury,
it did not render the trial fundamentally unfair and the resulting verdict did not
constitute a denial of due process. During the guilt phase of trial, the jury had seen
the graphic crime scene and autopsy photos. The arrangement of the photos and their
projection on a screen during closing argument no doubt reminded the jury of the
gruesome nature of the crime. But the presentation arguably served to show that
Strong acted with “depravity of mind[,]” Mo. Rev. Stat. § 565.032.2(7), in that he
“committed repeated and excessive acts of physical abuse” upon the victims, MAI-
CR 3d 313.40. See Rousan, 436 F.3d at 958-59 (holding that the admission of photos
showing the “severely decomposed” bodies of the victims did not violate the
petitioner’s right to due process because the photos arguably were relevant and
probative); Kuntzelman v. Black, 774 F.2d 291, 292-93 (8th Cir. 1985) (per curiam)
(holding that the admission of “flagrantly gruesome” photographs did not violate the
petitioner’s right to due process because the photos “were at least arguably relevant
and probative”). In light of the overwhelming evidence of Strong’s guilt and the
strength of the state’s case for the imposition of the death penalty, the Missouri
-23-
Supreme Court reasonably concluded that the PowerPoint presentation did not
deprive Strong of a fair trial.
III. Conclusion
The district court’s judgment denying habeas relief is affirmed.
______________________________
-24-