Earl Forrest v. Troy Steele

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2888
___________________________
Earl Forrest
lllllllllllllllllllllPetitioner - Appellant
v.
Troy Steele
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 12, 2014
Filed: August 22, 2014
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Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.
____________
RILEY, Chief Judge.
Earl Forrest was convicted of three counts of capital murder in Missouri state
court and was sentenced to death. The Missouri Supreme Court affirmed the
conviction and sentence on direct appeal, see State v. Forrest (Forrest I), 183 S.W.3d
218, 232 (Mo. 2006) (en banc), and later affirmed the denial of Forrest’s motion for
post-conviction relief, see Forrest v. State (Forrest II), 290 S.W.3d 704, 718 (Mo.
2009) (en banc). The district court1 denied Forrest’s application for writ of habeas
corpus under 28 U.S.C. § 2254, but granted a certificate of appealability on the
question of ineffective assistance of counsel during the penalty phase of Forrest’s
trial. Forrest appeals the denial on this ground. With appellate jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On December 9, 2002, Forrest, who had been drinking alcohol, and Angelia
Gamblin, his girlfriend, drove to the home of Harriet Smith to resolve “a dishonored
agreement” between Forrest and Smith. Forrest I, 183 S.W.3d at 223.2 The
agreement was that Forrest would introduce Smith to a source of methamphetamine
in return for a lawn mower and a mobile home. See id. While Gamblin waited in the
car, Forrest went into Smith’s house and “demanded that Smith fulfill her part of the
bargain.” Id. A melee ensued during which Forrest killed Michael Wells, a visitor
at Smith’s residence, with a “close contact”3 shot to the face. See id. Smith
attempted to escape with Gamblin’s car, but hit a tree limb while backing out of the
driveway. With the car stuck, Forrest coerced Smith back into the house where
Forrest killed her, shooting her a total of six times, including two close contact shots
to her face. See id.
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
2
“The factual findings of a state court are presumed to be correct in a federal
habeas proceeding, 28 U.S.C. § 2254(e)(1), and” with some clarification from the
record, “we recite the facts as recounted by the Missouri courts.” Gray v. Norman,
739 F.3d 1113, 1114 (8th Cir. 2014).
3
A “close contact wound” is one where forensic evidence indicates the gun was
“probably within five to seven inches” of the wound.
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Forrest and Gamblin fled, taking with them a lockbox containing about
$25,000 of methamphetamine. See id. After Forrest and Gamblin returned home,
Sheriff Bob Wofford and Deputy Sharon Joann Barnes, who were investigating the
shooting, knocked on the door and asked for Forrest. See Forrest II, 290 S.W.3d at
707. Forrest approached the door and opened fire, wounding Sheriff Wofford and
killing Deputy Barnes. See id.; Forrest I, 183 S.W.3d at 223. After Forrest and
Gamblin were shot, Forrest surrendered. See Forrest I, 183 S.W.3d at 223.
A. Trial and Direct Appeal
Represented by Missouri public defenders Sharon Turlington and David
Kenyon (collectively, defense counsel), Forrest was charged in Missouri state court
with three counts of first degree murder for the deaths of Smith, Wells, and Deputy
Barnes, for which the state sought the death penalty. See id. During the guilt phase
of Forrest’s trial, the jury found Forrest guilty on all three charges. See id.
During the penalty phase, defense counsel called fourteen lay witnesses to
provide mitigating testimony. Forrest’s brother William testified that he and Forrest
regularly used illegal drugs and that William, Forrest, and their father drank alcohol
heavily. William said their father always punished Forrest more strictly than William
and recalled an occasion when their father brought Forrest to their front yard and
“slapp[ed] him around” publicly. William explained their father pressured him and
Forrest to be “tough guys” and to fight other boys. William testified that when they
were adults, he and Forrest once had a fight during which Forrest hit William so hard
William saw stars and William stabbed Forrest in the stomach with a buck knife.
Defense counsel also presented the testimony of four of Forrest’s stepchildren4 to
4
Like the state circuit court, we “use[] the term ‘stepchildren’ for simplicity,”
although “[t]echnically, these witnesses . . . were the children of one of Forrest’s
girlfriends, Nancy Young.” Forrest lived with Young and the children for a period,
and the children’s testimony indicates they perceived Forrest as something of a
stepfather.
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demonstrate he was a good father-figure. The children’s mother, Nancy Young,
testified to the same effect. Several friends and acquaintances, including Gamblin,
testified Forrest abused alcohol and methamphetamine but that he still was a good
person, parent, and friend.
Defense counsel also called three mental health experts. Clinical psychologist
Dr. Robert Smith diagnosed Forrest with long-term depression, brain damage, and
substance dependence. Dr. Smith explained that these conditions combined to cause
mood swings as well as difficulty concentrating and problem-solving.
Neuropsychologist Dr. Michael Gelbort concluded, according to a battery of
neuropsychological tests, Forrest suffered from frontal lobe dysfunction, which
accentuated Forrest’s impulsive behavior. Dr. Gelbort also explained brain scans had
not been performed on Forrest, but that the type of impairment from which Forrest
was believed to suffer would “rarely” appear on PET,5 SPECT, MRI, or CT scans.
Psychiatric pharmacist Dr. Roswell Lee Evans testified that long-term drug and
alcohol abuse affects the ability to exercise judgment and recall memories. Dr. Evans
also testified that considering the volume of alcohol consumed, Forrest was most
likely in an “alcoholic blackout” at the time of the murders.
The jury unanimously recommended a death sentence for each conviction,
finding multiple statutory aggravators applicable: Forrest killed Smith during the
murder of Wells; he killed Smith and Wells to obtain something of pecuniary value
(methamphetamine); and he killed Deputy Barnes while she performed her official
duty as a peace officer. See Forrest I, 183 S.W.3d at 223. On appeal, the Missouri
Supreme Court upheld Forrest’s conviction and sentence. See id. at 232.
5
“PET,” the scan-type at issue here, stands for “Positron Emission
Tomography.” See 9 The New Encyclopædia Britannica 637 (15th ed. 2010).
According to expert testimony, PET scans show energy (glucose) usage throughout
the brain and in this way can indicate deficient functioning in certain areas of the
brain.
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B. Post-Conviction Relief and Habeas Proceedings
After his unsuccessful direct appeal, Forrest moved for post-conviction relief,
see Mo. Sup. Ct. R. 29.15, raising dozens of claims, including the four claims at issue
here that defense counsel was ineffective during the penalty phase. Forrest’s
ineffective assistance claims cited defense counsel’s failure to (1) conduct a PET
scan; (2) present certain medical records; (3) call a particular psychologist to testify
about Forrest’s probability of future dangerousness; and (4) investigate three specific
acquaintances of Forrest. After an evidentiary hearing as to those issues, the Missouri
circuit court denied the motion.
On appeal, Forrest challenged, among other things, the state circuit court’s
conclusions on each of his four currently relevant ineffective assistance claims as to
the penalty phase. The Missouri Supreme Court affirmed, analyzing each of Forrest’s
four ineffective assistance claims considered at the hearing and concluding that in
each instance defense counsel’s performance was constitutionally adequate and non-
prejudicial. See Forrest II, 290 S.W.3d at 708-12, 714-15, 718.
Forrest then applied for a writ of habeas corpus in federal district court for the
Western District of Missouri, presenting, among other claims, the four alleged
instances of penalty phase incompetence as parts of a single ineffective assistance
claim and arguing the Missouri Supreme Court improperly viewed these points
individually, rather than cumulatively. The district court denied the application,
rejecting Forrest’s cumulative analysis assertion under Middleton v. Roper, 455 F.3d
838, 851 (8th Cir. 2006), and concluding federal relief was barred under 28 U.S.C.
§ 2254(d). The district court granted Forrest a certificate of appealability as to his
claims of ineffective assistance during the penalty phase. Forrest appeals on this
basis.
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II. DISCUSSION
“When considering the district court’s denial of a habeas petition, ‘we review
the district court’s findings of fact for clear error and its conclusions of law de
novo.’” Middleton, 455 F.3d at 845 (quoting Lyons v. Luebbers, 403 F.3d 585, 592
(8th Cir. 2005)). The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d), prohibits us from granting habeas relief unless the
state 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.
28 U.S.C. § 2254(d). “AEDPA modified a federal habeas court’s role in reviewing
state prisoner applications in order to prevent federal habeas retrials and to ensure
state-court convictions are given effect to the extent possible under law.” Abernathy
v. Hobbs, 748 F.3d 813, 816 (8th Cir. 2014). Forrest “carries the burden of
pro[ving]” this hurdle is met. Cullen v. Pinholster, 563 U.S. ___, ___, 131 S. Ct.
1388, 1398 (2011). Forrest’s underlying ineffective assistance claim is governed by
Strickland v. Washington, 466 U.S. 668 (1984), which requires Forrest to “show both
that counsel’s performance was deficient and that the deficiency prejudiced the
defendant.” Williams v. Roper, 695 F.3d 825, 830 (8th Cir. 2012). We agree with
the district court that the Missouri Supreme Court was reasonable in concluding
defense counsel satisfied Strickland’s performance prong.
A. Strickland’s Performance Prong
“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”
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guaranteed the defendant by the Sixth Amendment.’” Strong v. Roper, 737 F.3d 506,
517 (8th Cir. 2013) (quoting Strickland, 466 U.S. at 687). Under this standard,
counsel must “‘make reasonable investigations or . . . make a reasonable decision that
makes particular investigations unnecessary.’” Id. (quoting Strickland, 466 U.S. at
691). “‘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.’” Id. (quoting Bucklew v. Luebbers, 436 F.3d 1010, 1016
(8th Cir. 2006)). Here, our review is governed by both § 2254(d) and Strickland,
meaning we are to be “‘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.’” Strong, 737 F.3d at 517 (quoting Nooner v. Norris, 402 F.3d 801, 808
(8th Cir. 2005)); see also Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770,
788 (2011) (stressing the difficulty of overcoming both § 2254(d) and Strickland
“when the two apply in tandem”).
With two exceptions discussed below, see infra sections II.B and C, Forrest
does not claim the Missouri Supreme Court’s decision was “contrary to” clear
Supreme Court precedent. Forrest bases his arguments on the “unreasonable
application” language of § 2254(d)(1) and the “unreasonable determination of facts”
language of § 2254(d)(2). In reviewing for an unreasonable application of clearly
established law, we look not “‘to the quality of the reasoning process articulated by
the state court’” or “the statement of reasons explaining the state court’s decision,”
which “would ‘place the federal court in just the kind of tutelary relation to the state
courts that [AEDPA was] designed to end.’” Williams, 695 F.3d at 831, 834-35
(quoting Hennon v. Cooper, 109 F.3d 330, 334-35 (7th Cir. 1997)). “[W]e examine
the ultimate legal conclusion reached by the [state] court” and ask “whether there is
‘any reasonable argument’ that the state court’s judgment is consistent with
Strickland.” Id. at 831-32 (quoting Richter, 562 U.S. at ___, 131 S. Ct. at 788). In
judging the state court’s conclusions we must also remember that “[t]he Strickland
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standard is a general one, so the range of reasonable applications is substantial.”
Richter, 562 U.S. at ___, 131 S. Ct. at 788.
Challenges to the state court’s factual findings place a similarly weighty burden
on the petitioner. “Unless [Forrest] rebuts by clear and convincing evidence the
presumption that [a state court’s] finding was correct, 28 U.S.C. § 2254(e)(1), and
shows that the finding was unreasonable, id. § 2254(d)(2), we may not grant him
relief.” Taylor v. Roper, 577 F.3d 848, 859 (8th Cir. 2009).
1. PET Scan
Though three medical experts testified during Forrest’s penalty phase, Forrest
argues defense counsel was unreasonable in failing to have Forrest undergo a PET
scan. The record shows defense counsel considered the possibility of brain scanning
as early as May 2003. In June of 2004, Dr. Evans suggested obtaining a PET scan,
and in September that year Dr. Gelbort gave a similar recommendation. In September
of 2004, Turlington, through another attorney, contacted Dr. Ken Smith to arrange for
a PET scan, but Dr. Ken Smith refused to perform the scan without first performing
an MRI. Following Dr. Ken Smith’s insistence on an MRI, defense counsel chose to
proceed to trial without a PET scan.
At the post-conviction relief hearing, Turlington testified an MRI likely would
not show the type of damage Forrest was believed to have. At trial, Dr. Gelbort
agreed. Turlington testified also that she has used PET scans in other trials, but with
PET scans “you’re not guaranteed that there’s going to be anything on a scan . . . and
then you created evidence that undercuts your own evidence.” The problem with this,
she testified, is that Missouri state law prevents a motion for transportation to the scan
location from occurring ex parte and under seal, making it easy for the state to learn
of negative results. Turlington explained, “I can say one hundred percent for sure if
we could have done [a PET scan] ex parte and had the order filed under seal, we
would have done the scan, one hundred percent for sure.”
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Dr. David Preston, a physician specializing in nuclear medicine, conducted a
PET scan after Forrest’s conviction. The scan, according to Dr. Preston, showed
brain damage and reduced metabolism in Forrest’s frontal lobes. At the post-
conviction relief hearing, Dr. Preston testified the scan cannot demonstrate
diminished capacity, predict future behavior, or determine state of mind—for
example, the scan cannot predict moods or criminal behavior. Drs. Smith, Evans, and
Gelbort each testified Dr. Preston’s results would have helped illustrate and reinforce
their conclusions, but would not have changed their testimonies.
The state circuit court found defense counsel made a “fully-informed” and
“strategic” decision to forego the scan in light of the possible negative results and
inability to move ex parte for transportation to the scan location. The state circuit
court therefore concluded defense counsel’s decision was reasonable and entitled to
deference. See Strickland, 466 U.S. at 689-91. The Missouri Supreme Court agreed
defense counsel’s decision was reasonable for this reason. See Forrest II, 290 S.W.3d
at 709.
Forrest first challenges the finding that foregoing a PET scan was a strategic
decision, arguing the failure was actually because defense counsel neglected the issue
until the last minute and then “simply ran out of time.” The record does not compel
such a conclusion. Forrest notes (1) Drs. Evans and Gelbort suggested a PET scan
could substantiate their tests, and (2) September 2004 was the first time defense
counsel contacted a doctor to arrange for a PET scan before the trial began on
October 4, 2004. But this naked time line of events does not compel an assumption
of negligence or disprove the Missouri state courts’ finding that strategic concerns
motivated the decision. Nor does the record evidence establish defense counsel’s
ultimate decision was forced by time pressure rather than produced by strategic
deliberation. To the contrary, Turlington testified that but for Missouri law
preventing defense counsel from obtaining PET scans ex parte and under seal,
defense counsel would have acquired a PET scan. Turlington also testified negative
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or inconclusive results were a real possibility and defense counsel considered the
state’s potential access to these results throughout pretrial preparation. The record
supports a finding that defense counsel’s decision was considered and strategic, and
Forrest did not satisfy his heavy burden of proving the contrary. See 28 U.S.C.
§ 2254(d)(2).
Forrest also argues “[a] reasonably competent trial attorney would have
realized that the testimony of the trial experts was vulnerable to attack” on the basis
that they lacked corroboration through medical testing, and a reasonable trial attorney
“would have conducted a PET scan and presented available medical records to
foreclose the prosecutor’s arguments that completely undermined” Forrest’s experts.
To the extent the scan results would have been admissible during the penalty phase,
the record indicates even favorable PET scan results showing diminished energy
usage would merely have corroborated Forrest’s existing experts and could not
definitively prove the existence of a mental disease or defect.
More importantly, Turlington testified that in her experience, “you’re not
guaranteed that there’s going to be anything on a [PET] scan”6 and that Missouri law
prevented an ex parte order to transport Forrest to the scan location. At the time, the
Missouri Supreme Court had recently held that “[n]ormally, a defendant is not
entitled to an ex parte hearing on” a motion to transport a defendant for a mental
evaluation. State v. Anderson, 79 S.W.3d 420, 434 (Mo. 2002) (en banc). The
Missouri Supreme Court in the present case agreed with defense counsel that “[a]n
ex parte order will not be granted to transport a defendant for a mental examination.”
Forrest II, 290 S.W.3d at 709 n.3 (citing Anderson, 79 S.W.3d at 434). With
knowledge of the scan, the state might have acquired any unfavorable results,
meaning the consequences of negative results were potentially severe. See Mo. Sup.
6
Forrest does not claim Turlington was wrong to believe negative results were
a legitimate possibility.
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Ct. R. 25.06(A) (mandating that upon the state’s written motion containing a
reasonable request, a trial court must “order the defendant to disclose to the state that
material and information requested which is found by the court to be relevant and
material to the state’s case”); Dees v. Caspiri, 904 F.2d 452, 455, n.3 (8th Cir. 1990)
(per curiam) (explaining that “under Missouri Rule 25.06 the defendant . . . may be
compelled to reveal the reports of experts he does not intend to call at trial” and
noting that “counsel was appropriately cautious of this rule’s potential application”
to any adverse expert opinions which further investigation might reveal); State v.
Carter, 641 S.W.2d 54, 57-58 (Mo. 1982) (en banc).
Without the benefit of hindsight, see Abernathy, 748 F.3d at 816, two options
would have appeared plausible: rely on Forrest’s three existing experts and forego the
scan, or attempt to corroborate the experts’ testimony by running the risk of
materially undermining it. The Missouri Supreme Court was reasonable in
concluding defense counsel’s choice of the former option fell within Strickland’s
“wide range of reasonable professional judgment,” Bucklew, 436 F.3d at 1016. See
28 U.S.C. § 2254(d)(1).
2. Medical Records
Forrest next claims defense counsel was ineffective in deciding not to introduce
medical records from the early 1990s. These records show one instance of an
“alleged assault” in which Forrest “was struck in the head with a baseball bat,”
resulting in an “8 cm scalp laceration.” The records also contain reports of
depression, suicide attempts, and drug and alcohol abuse.
In a deposition admitted during the post-conviction relief hearing, Kenyon
testified he had believed the records were not “mitigation friendly” because the
baseball bat incident was the result of a dispute between Forrest and another man over
drug debts each owed the other. Kenyon testified he wanted to keep out suggestions
that Forrest dealt drugs and particularly that Forrest was involved in drug-related
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violence. Turlington testified she had believed the baseball bat incident was not
“crucial” to the case in light of Dr. Gelbort’s expected testimony regarding brain
damage.
The state circuit court concluded defense counsel’s decision was not
unreasonable because (1) most of the medical records’ contents were presented
through other evidence, having been supplied by counsel to Drs. Gelbort and Evans,
thereby making the records cumulative, and (2) the facts surrounding the baseball bat
incident were potentially harmful. The Missouri Supreme Court agreed, deferring to
defense counsel’s strategic decision and concluding that “failing to offer cumulative
evidence” does not constitute constitutionally deficient performance. Forrest II, 290
S.W.3d at 710.
First, Forrest agrees the medical records are to some degree substantively
cumulative of penalty phase testimony. Forrest argues this finding is nevertheless
unreasonable because, like “airtight evidence of DNA test results” relative to
“antiquated blood-typing,” the credibility of medical records is irrefragable compared
to the more controvertible credibility of expert witness testimony on the same subject.
Forrest’s comparison to DNA sequencing and blood-typing overstates the relative
credibility here. Assuming evidence should be seen as non-cumulative where it is
significantly more credible than existing evidence, the difference between viewing
Forrest’s medical records and learning their contents from witnesses—both lay
witnesses with direct knowledge and experts who perused the records and
interviewed Forrest—is not so great as to make the Missouri Supreme Court’s finding
unreasonable. Having found the records cumulative, it was reasonable to conclude
defense counsel’s decision met the requirements of Strickland. See, e.g., Elam v.
Denney, 662 F.3d 1059, 1066 (8th Cir. 2011) (deciding “the state courts did not
unreasonably apply Strickland in concluding that counsel’s decision not to call [two
experts] to provide cumulative testimony . . . was not constitutionally deficient
performance”); Sherron v. Norris, 69 F.3d 285, 291 (8th Cir. 1995) (concluding that
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given the testimony in hand, “counsel’s decision to forgo what would at best have
been cumulative testimony was not professionally unreasonable”).
Second, the Missouri Supreme Court’s conclusion was also reasonable in light
of defense counsel’s strategic concerns. Forrest argues “the Missouri Supreme
Court’s strategy finding rested upon a glaring factual error that the medical records
contained evidence that [Forrest] was dealing drugs.” But the strategic risk was not
that the records directly referenced the drug deal—the fear was that the reference to
the baseball bat incident could lead to questions about the incident itself, a topic
defense counsel understandably wished to avoid.
Forrest also claims defense counsel’s decision was unreasonable because the
records were necessary to fortify the testimony of Forrest’s experts against the state’s
cross-examination and because Dr. Gelbort opened the door to the baseball bat
incident anyway. Though the medical records might have been useful in bolstering
the testimony of Forrest’s experts, the marginal return of introducing the records to
supplement existing testimony reasonably did not justify the risk of giving the state
a lead-in to harmful information. Further, the simple fact that Dr. Gelbort mentioned
Forrest’s baseball bat injury while testifying does not mean there was never a danger
in producing the hospital records that note the “alleged assault” of Forrest with a
baseball bat during Forrest’s involvement in an “altercation.”
Given both the diminished utility of largely cumulative records and the
strategic reasons to avoid discussing the baseball bat incident, the Missouri Supreme
Court reasonably concluded defense counsel’s performance was constitutionally
sufficient. See 28 U.S.C. § 2254(d)(1).
3. Dr. Cunningham
Forrest next argues defense counsel was ineffective in deciding not to hire Dr.
Mark Cunningham, a clinical and forensic psychologist, to testify during the penalty
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phase. At the post-conviction relief hearing, Dr. Cunningham testified on two points:
(1) “protective and risk factors” from Forrest’s childhood, and (2) predictions on the
likelihood of Forrest’s future violence in prison. Dr. Cunningham testified that
Forrest’s age, adjustment in prison, and high school diploma made him “unlikely to
be involved in violence in prison.” Dr. Cunningham also testified about Forrest’s
past, and in particular, his family life, substance abuse, and brain dysfunction.
During his post-conviction relief deposition, Kenyon testified he had
interviewed Dr. Cunningham as a possible expert witness on Forrest’s risk of future
violence. Kenyon testified he and Turlington ultimately decided against hiring Dr.
Cunningham out of fear his testimony would prompt the state to ask questions about
Forrest’s involvement in a California homicide. Kenyon also testified he was
concerned Dr. Cunningham’s rough predictions as to what his statistical analysis
would produce portended testimony that could be more harmful than helpful.
Turlington confirmed the decision not to call Dr. Cunningham was based on the belief
that his testimony would not help.
The state circuit court ultimately concluded the decision not to call Dr.
Cunningham reflected a reasonable strategy, given the fear Dr. Cunningham’s
testimony could be unhelpful, possibly leading to questions about Forrest’s
connection to another homicide. The state circuit court also found Dr. Cunningham’s
testimony questionable and largely cumulative of other evidence. The Missouri
Supreme Court agreed with the state circuit court’s conclusions. See Forrest II, 290
S.W.3d at 715.
Forrest challenges the conclusion that defense counsel’s strategy was
reasonable, emphasizing that before trial, defense counsel moved to strike the state’s
endorsement of a witness whom the state wished to testify on the California homicide.
Forrest suggests it was unreasonable to fear questions about this homicide because,
as Forrest describes it, the state had “agreed to not bring up” evidence of the homicide
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or call the witness, and because the state court had “entered an interlocutory order
sustaining the defense’s motion to exclude” the witness. In reality, the state and
defense counsel agreed during the hearing that the state would not address the
California homicide so long as defense counsel did not open the door to Forrest’s
general propensity for violence—for example, by eliciting testimony Forrest “was a
wonderful person” and “never harmed a fly.” After this apparent agreement, the state
court, “[f]or lack of a better term,” “enter[ed] an interlocutory or temporary ruling
granting the motion to strike the endorsement.” The court then noted it would “make
rulings as appropriate” “dependent on the evidence as it is presented at trial” and the
court’s ruling did “not foreclose counsel, either for the State or the defense, from
addressing this issue again at a time they deem appropriate.” Following this ruling,
admission of evidence on the California homicide would have appeared to remain a
danger. With Dr. Cunningham testifying on Forrest’s historical behavior and risk of
future violence, it was reasonable to fear Dr. Cunningham’s testimony would tread
too closely to the line and expose Forrest to damaging testimony with little to gain.
Forrest also claims questions about the California homicide would have been
inadmissible during Forrest’s penalty phase under State v. Debler, 856 S.W.2d 641(Mo. 1993) (en banc). However, “‘[d]uring the penalty phase, both the state and the
defense may introduce any evidence pertaining to the defendant’s character,’”
including “[e]vidence of a defendant’s prior unadjudicated criminal conduct.” State
v. Christeson, 50 S.W.3d 251, 269 (Mo. 2001) (en banc) (quoting State v. Ervin, 979
S.W.2d 149, 158 (Mo. 1998) (en banc)). Debler simply requires that the defendant
be given timely notice of the state’s intent to use such evidence. See State v.
Chambers, 891 S.W.2d 93, 106-07 (Mo. 1994) (en banc); see also Ervin, 979 S.W.2d
at 158 (“Since the decision in Chambers, this Court has consistently held that the
error in Debler was lack of notice.”).
“‘Decisions relating to witness selection are normally left to counsel’s
judgment, and this judgment will not be second-guessed by hindsight.’” Hanes v.
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Dormire, 240 F.3d 694, 698 (8th Cir. 2001) (quoting Williams v. Armontrout, 912
F.2d 924, 934 (8th Cir. 1990) (en banc)). Here, the record shows, and the state circuit
court found, defense counsel’s decision was a strategic one, based on justifiable
concerns about the helpfulness (and potential harmfulness) of Dr. Cunningham’s
testimony. Defense counsel’s decision based on this risk calculation does not fall
outside the bounds of Strickland.
4. Lay Witnesses
Lastly, Forrest asserts ineffective assistance in defense counsel’s failure to
interview and ultimately call three lay witnesses: Anthony Jacobs, Curtis Fuller, and
Dennis Smock. Jacobs, Forrest’s longtime friend, would have testified about
Forrest’s drug and alcohol abuse and that Forrest was good with children. One of
defense counsel’s investigators contacted Jacobs looking for another witness and
during the call Jacobs told the investigator he had known Forrest. Fuller, Forrest’s
childhood neighbor, would have testified Forrest’s father drank heavily and yelled at
and hit Forrest when Forrest was a child. Turlington explained defense counsel did
not investigate Forrest’s childhood acquaintances. Smock, Forrest’s former
employer, would have testified Forrest was a hard worker, but required more
supervision to complete even basic tasks. Smock’s name appeared on a list of
acquaintances which Forrest provided defense counsel. Turlington could not
remember any strategic reason that defense counsel did not further investigate these
witnesses.
The state circuit court concluded defense counsel was “not ineffective for
failing to adduce cumulative evidence” from Jacobs, Fuller, and Smock. The
Missouri Supreme Court agreed this did not amount to deficient performance. See
Forrest II, 290 S.W.3d at 711. Forrest now challenges this conclusion, arguing
Turlington’s failure to articulate a strategic justification made defense counsel’s
inaction necessarily unreasonable. But this argument ignores the “strong
presumption” of reasonableness permeating defense counsel’s every decision, see
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Strickland, 466 U.S. at 689, by apparently assuming that defense counsel must recall
and provide (years after the facts) a conscious strategic foundation for every
action—and for every action not taken. Strickland’s presumption is not toppled so
easily, and it is Forrest’s burden to show that the course defense counsel took is not
among the “countless ways to provide effective assistance” in this case. Id.In any case, “the duty to investigate does not force defense lawyers to scour the
globe on the off chance something will turn up; reasonably diligent counsel may draw
a line when they have good reason to think further investigation would be a waste.”
Rompilla v. Beard, 545 U.S. 374, 383 (2005). Indeed, Strickland itself presented a
situation where “[c]ounsel’s strategy . . . decision not to seek more character or
psychological evidence than was already in hand was . . . reasonable.” Strickland,
466 U.S. at 699. And months after the Missouri Supreme Court rendered its decision,
the Supreme Court again confirmed that “there comes a point at which evidence from
more distant relatives can reasonably be expected to be only cumulative, and the
search for it distractive from more important duties.” Bobby v. Van Hook, 558 U.S.
4, 11 (2009) (per curiam); see also Hanes, 240 F.3d at 698 (“While some of the
potential witnesses’ testimony could have been helpful in rebutting or clarifying some
collateral evidence, we do not believe any of the proffered testimony was so
important as to put counsel’s failure to consult with or call these witnesses outside the
wide bounds of strategic choices that counsel is afforded.”).
In this case, defense counsel found three experts to provide mental health
testimony as well as fourteen lay witnesses willing to testify on Forrest’s substance
abuse, difficult childhood, quality as a person, and ability as a parent. We find
nothing to suggest defense counsel should have recognized the investigation was
materially incomplete, requiring additional fleshing out, or that either Jacobs, Fuller,
or Smock was necessary for a reasonably complete investigation.
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Forrest attempts to distinguish Smock as “the only former employer of
[Forrest’s] to testify” and Fuller as “the only nonfamily member who could
corroborate [William’s] trial testimony of [Forrest’s] turbulent childhood.” With
numerous witnesses already testifying on the same subjects, Forrest has not satisfied
his substantial burden of showing the failure to pursue these tenuous leads for
cumulative testimony overcomes Strickland’s presumption of reasonableness or
makes defense counsel’s otherwise thorough investigation unconstitutionally
deficient. See Strickland, 466 U.S. at 691 (“[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.”). Relief cannot be granted for
Forrest on this basis. See 28 U.S.C. § 2254(d)(1).
B. Claim-by-Claim Analysis
Forrest presented both the state circuit court and the Missouri Supreme Court
with four discrete failures of defense counsel and a separate claim of error for each,
having made no attempt to unite these failures under a common theory of
ineffectiveness. Yet Forrest now claims the Missouri Supreme Court’s decision “was
contrary to” and “involved an unreasonable application of, clearly established Federal
law,” 28 U.S.C. § 2254(d)(1), insofar as the Missouri Supreme Court assessed claim
by claim the reasonableness of defense counsel’s performance. Forrest contends clear
Supreme Court precedent obligated the Missouri Supreme Court to bundle the
individual claims of attorney error and determine whether the body of these alleged
faults, en masse, overcome Strickland’s presumption of reasonableness. See
Strickland, 466 U.S. at 689. We do not understand the Strickland standard to demand
this sort of cumulative performance inquiry, see Wainwright v. Lockhart, 80 F.3d
1226, 1233 (8th Cir. 1996) (“Errors that are not unconstitutional individually cannot
be added together to create a constitutional violation. Neither cumulative effect of
trial errors nor cumulative effect of attorney errors are grounds for habeas relief.”
(internal citation omitted)), nor does Forrest direct us to a Supreme Court decision
supporting his assertion.
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Forrest “carries the burden of pro[ving]” the requirements of § 2254(d) have
been met—a “‘difficult’” and “‘highly deferential standard.’” Cullen, 563 U.S. at
___, 131 S. Ct. at 1398 (quoting Richter, 562 U.S. at ___, 131 S. Ct. at 786, and
Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)). Forrest cites
language in Strickland that “the performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances.” 466 U.S. at 688(emphasis added). Forrest also looks to the Supreme Court’s statement that “[i]t will
generally be appropriate for a reviewing court to assess counsel’s overall performance
throughout the case in order to determine whether the ‘identified acts or omissions’
overcome the presumption that a counsel rendered reasonable professional
assistance.” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986) (quoting Strickland,
466 U.S. at 690).
While this language plausibly may be read to support Forrest’s cumulative
view of performance, Forrest’s burden under 28 U.S.C. § 2254(d)(1) is to show “the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions,” Williams v.
Taylor, 529 U.S. 362, 412 (2000), provide a “clear answer to the question presented”
in Forrest’s favor, Wright v. Van Patten, 552 U.S. 120, 126 (2008). Though
Kimmelman says it is “appropriate” to look to overall performance and “inadvisable”
to do otherwise, 477 U.S. at 386, such precatory language does not evince a holding
establishing the clear rule Forrest proposes. By requiring that counsel’s performance
be “reasonable considering all the circumstances,” 466 U.S. at 688, Strickland does
not purport to aggregate each discrete and potentially unrelated claim of
ineffectiveness into a single performance inquiry. The statement contemplates that
“[a] fair assessment of attorney performance requires that every effort be made . . . to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689. This the Missouri
Supreme Court has done, basing its conclusions on evidence of defense counsel’s
knowledge and beliefs at the time of each decision. See Forrest II, 290 S.W.3d at
709-11, 715, 718.
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The Missouri Supreme Court reasonably applied Strickland by analyzing
individually each of the four discrete claims before the court and considering those
circumstances appearing relevant to each claim.
C. Trial Strategy Standard
In describing the ineffective assistance standard, the Missouri Supreme Court
stated “[t]rial strategy is not a basis for ineffective assistance of counsel.” Forrest II,
290 S.W.3d at 708. Forrest contends “[t]his formulation of the Strickland
performance test is contrary to Wiggins[ v. Smith, 539 U.S. 510, 520-21 (2003)]
because it failed to consider whether counsel’s strategy was objectively reasonable
under prevailing professional norms in light of the information available to counsel
at the time of trial.”
The Missouri Supreme Court made this statement shortly after recognizing that
“[d]eficient performance exists when the representation is ‘below an objective
standard of reasonableness.’” Forrest II, 290 S.W.3d at 708 (quoting Goodwin v.
State, 191 S.W.3d 20, 25 (Mo. 2006) (en banc)). And the court followed its statement
by explaining that “decisions made after considering the law and facts and pondering
alternative strategies generally are not disturbed by a court on review.” Id. This
largely paraphrases the intended operative standard that “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690; see also Abernathy,748 F.3d at 816
(recognizing our obligation under Strickland to “‘refrain[] from . . . second-guessing
of trial counsel’s strategic decisions’” (quoting Nave v. Delo, 62 F.3d 1024, 1035 (8th
Cir. 1995))). While the “‘shorthand reference’ to the Strickland standard . . . ‘may
perhaps be imprecise,’” “[w]e are satisfied that the state courts understood the
familiar Strickland standard and issued a decision that was not contrary to established
federal law.” Williams, 695 F.3d at 832 (quoting Woodford, 537 U.S. at 23-24).
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III. CONCLUSION
With our review cast in the light of twice-magnified deference, see Richter, 562
U.S. at ___, 131 S. Ct. at 788; Strong, 737 F.3d at 517, Forrest cannot meet his
burden to demonstrate the state courts erred and his defense “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed [him] by the
Sixth Amendment.” Strickland, 466 U.S. at 687. Because Forrest has not shown the
Missouri Supreme Court’s decision was either “contrary to, or involved an
unreasonable application of, clearly established Federal law” or “based on an
unreasonable determination of the facts,” 28 U.S.C. § 2254(d), we affirm the denial
of Forrest’s application for § 2254 relief.
BYE, Circuit Judge, dissenting.
I would reverse the district court and grant Earl Forrest a new sentencing. I
believe Forrest's trial counsel were constitutionally ineffective in failing to present
a PET scan at the penalty phase of Forrest's trial and the Missouri Supreme Court
unreasonably determined trial counsels' actions did not constitute constitutionally
ineffective assistance of counsel. See Forrest v. State, 290 S.W.3d 704 (Mo. 2009).
Therefore, I respectfully dissent.
The majority believes trial counsels' decision to forego a brain scan was
"considered and strategic." I disagree. I believe the Supreme Court of Missouri made
an unreasonable determination of the facts because the court failed to take into
account that the testimony of defense experts was undermined by a lack of medical
evidence.
The center of the defense strategy at trial was to show Forrest should not be
sentenced to death because he suffered from brain damage. The defense called
several experts to testify about Forrest's impaired functioning due to substance abuse,
brain damage to Forrest's right frontal lobe, Forrest's impaired judgment and impulse
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control, and other cognitive disorders. During its cross-examination of defense
experts and in closing arguments, the state effectively attacked the experts' findings
of Forrest's brain damage by emphasizing there were no medical records or medical
tests presented to corroborate the subjective opinions of these experts. The state
repeatedly argued to the jury Forrest had failed to prove brain damage because the
defense did not retain a physician to scan Forrest's brain to demonstrate the brain
damage existed with objective scientific evidence.
During the penalty phase, the state challenged the findings and credibility of
the defense experts by repeatedly characterizing their testimony as untrustworthy. As
only one of myriad examples, during the penalty phase cross-examination, the state
asked: "Is there a single objective feature which you can show us, an MRI, an x-ray,
anything where you can point to something and say here is this brain damage, or here
is this problem with his brain?" The defense expert was required to acknowledge no
brain scans had been undertaken to corroborate the findings of brain damage. The
state again reemphasized the fact no objective testing, including a PET scan, was
conducted to prove Forrest was brain damaged or suffered from brain dysfunction.
The state's strategy was effective–the jury foreman later told a newspaper the jury did
not believe Forrest had brain damage based on the evidence presented. Appellant's
Add. 30.
A PET scan would have neutralized the state's attacks about a lack of objective
evidence of brain damage and would have provided the jury an appropriate view of
such brain damage. Trial counsel should have realized having the PET scan available
would help their case; in fact, trial counsel discussed a PET scan more than a year in
advance yet failed to procure one, even after defense experts recommended a PET
scan be procured. When trial counsel finally decided to procure a PET scan at the
eleventh hour, counsel backed out when an MRI was requested. There is no strategy
to this; counsel were simply ineffective. Being presented with a biological
mechanism to account for violent behavior sways sentencing courts. Benedict Carey,
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Study of Judges Finds Evidence from Brain Scans Led to Lighter Sentences, N.Y.
Times, August 16, 2012. The PET scan would have enabled the expert witnesses to
propose a viable biological mechanism to show the jury Forrest's brain damage and
should have been presented by defense counsel.
The majority also believes "the record indicates even favorable PET scan
results . . . would merely have corroborated Forrest's existing experts." I disagree
with this conclusion and believe the Missouri Supreme Court was unreasonable in
determining a PET scan would have been cumulative. See Forrest, 290 S.W.3d at
709. Evidence regarding the main issue of a case–here, Forrest's brain damage–the
decision of which turns on the weight of the evidence, cannot be cumulative because
the weight and depth of the evidence is what was to be weighed by the jury. Black
v. State, 151 S.W.3d 49, 56 (Mo. 2004). Additionally, a PET scan is a different
device than an examination by a treating physician. The defense experts were all
cross-examined on the issue of a lack of any test or objective evidence of brain
damage. While a PET scan may have been cumulative in showing the same brain
damage testified to by the experts, it would not have been cumulative as to its effect
on the jury–the PET scan would have played a separate, unique roll in the penalty
phase by providing objective evidence on which the jury could have relied to find
Forrest had incurred brain damage. Moreover, the most compelling scientific
research should have been presented if it were available, which it could have been,
particularly when there was a substantial chance experts would be effectively cross-
examined on such technology as being missing from this case.
Finally, the majority reasons defense counsel made a strategic decision in
foregoing any brain scans for fear a scan would come back negative. The Missouri
Supreme Court also found counsel acted strategically in avoiding a brain scan.
Forrest, 290 S.W.3d at 709. I disagree and believe the Missouri Supreme Court was
unreasonable in reaching such a conclusion. We do not, and should not, require all
defense counsel presenting evidence of brain damage to obtain a PET scan of their
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client. However, this case presents an abnormal circumstance. Counsel knew at least
a year in advance they planned to mount a defense strategy almost solely reliant on
Forrest's brain damage, yet failed to obtain any objective evidence about Forrest's
brain. Additionally, their own expert witnesses explicitly recommended trial counsel
obtain PET scans of Forrest. Under these circumstances, trial counsel were
ineffective in failing to pursue a PET scan or any other type of objective evidence of
brain damage or brain abnormalities.
Before this court is "[t]he issue [of] whether the failure to discover and present
evidence of [Forrest]'s mental condition undermines our confidence in the outcome
of the . . . sentencing phase of the trial." Antwine v. Delo, 54 F.3d 1357, 1365 (8th
Cir. 1995). The failure to present PET scan evidence showing brain damage strongly
undermines my confidence in the outcome of the penalty phase of Forrest's trial. For
these reasons, I would reverse the district court and would order a new penalty phase
hearing where Forrest could present a PET scan as mitigating evidence.
______________________________
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