                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

     ___________

     No. 99-3693
     ___________

Faye D. Copeland,                   *
                                    *
                    Appellee,       *
                                    *
           v.                       *
                                    *
James Washington,                   *
                                    *
                    Appellant.      *
                                        Appeals from the United States
                                        District Court for the
                                        Western District of Missouri.
     ___________

     No. 99-3694
     ___________

Faye D. Copeland,                   *
                                    *
                    Appellant,      *
                                    *
           v.                       *
                                    *
James Washington,                   *
                                    *
                     Appellee.      *
                            Submitted: September 13, 2000

                                  Filed: November 30, 2000


Before HANSEN, HEANEY, and MORRIS S. ARNOLD, Circuit Judges.
                           ___________

HEANEY, Circuit Judge.

       Faye D. Copeland was convicted of five counts of first degree murder on a
theory of accomplice liability in state court. She was sentenced to death on four of the
counts, and on one count she was sentenced to life in prison without the possibility of
parole. The Missouri Supreme Court upheld her convictions and sentences on direct
appeal and denied her claims for post-conviction relief. See State v. Copeland, 928
S.W.2d 828 (Mo. 1996) (en banc), cert. denied, 519 U.S. 112 (1997). On federal
habeas review, the district court upheld her convictions, but determined that the penalty
phase was constitutionally flawed due to (1) the prosecutor’s improper closing
argument and (2) ineffective assistance based on counsel's failure to object to the
improper argument. See Copeland v. Washington, No. 97-1123-CV-W-3 (W.D. Mo.
Aug. 4, 1999). Accordingly, the district court granted the writ ordering the state to
hold a new sentencing hearing or to commute the petitioner’s sentence to life in prison
without parole. The state has appealed the reduction in sentence, and the defendant has
cross-appealed, seeking a new trial on the basis of numerous claimed errors in the
proceedings, including the handling of battered spouse evidence at trial and during the
penalty phase, the sufficiency of the evidence of guilt and of the aggravating factors.
We agree with the district court that the prosecutor's improper closing argument
deprived the petitioner of a fair sentencing hearing, but that she is not entitled to a new
trial on the basis of the claimed errors. We therefore affirm the order of the district
court in its entirety.


                                            2
                                       I. FACTS

        We summarize the evidence in the light most favorable to the verdict. The
petitioner and her husband, Ray Copeland, were involved in a fraudulent check and
cattle-buying scheme that ultimately led to the shootings of five homeless men. See
State v. Copeland, 928 S.W.2d 828, 834 (Mo. 1996) (en banc), cert. denied, 519 U.S.
112 (1997). Ray would visit a local homeless shelter and offer transients work. Ray
and the petitioner would take the transient to a post office to rent a box, and to a bank
to open an account. Ray would then have the transient bid on cattle at an auction and
write checks to pay for the cattle. Before the checks would bounce, Ray would quickly
resell the cattle. To prevent any investigation of the fraud, Ray would then shoot the
transient. It was only when one transient, Jack McCormick, escaped and notified the
police that the Copelands were apprehended. See id.

       Although Ray was the primary instigator of the scheme, testimony at trial also
described the petitioner's knowledge and involvement. The petitioner stored the
victims’ clothes in a closet; assisted with the paperwork related to the fraudulent
checks; warned McCormick, who had seen what he thought was a human skull near the
barn, to stay away from that portion of the property; and tried to cover up any
connection between her, the transients, and her husband. Perhaps the strongest
evidence was a list of names in the petitioner’s handwriting that had x’s marked next
to the victim’s names, and letters written from the petitioner to her husband suggesting
the knowledge that something incriminating would show up from the search of their
farm. See id. at 835-836. There was no evidence that the petitioner had herself shot
anyone; she had no history of violence. Thus, the state’s theory of first-degree murder
was predicated on accomplice liability.1


      1
        In a separate proceeding, Ray Copeland was later convicted and sentenced to
death for the murders. He was ill at the time of trial and died in jail a few months later.

                                            3
                    II. IMPROPER CLOSING ARGUMENT

A.    Penalty Phase

        The petitioner claims that the prosecutor’s closing argument at the penalty phase
of her trial, along with the failure of defense counsel to object to the argument, deprived
her of a fair sentencing hearing. We agree. The prosecutor began his closing at the
penalty phase by referring to a “television news report . . . about gangs in Los Angeles”
and stating that “members of the street gangs were murdering each other” in a violent
fight for turf. The prosecutor then went on to state that the gang shootings made his
“blood boil,” and that this case made him want to "weep and cry” because it was “the
same thing, right here in our backyards.” After a biblical reference to the killings as the
“modern equivalent of thirty pieces of silver,” the prosecutor summed up his closing
by giving his opinion that “there has never, ever been a more complete and utter
disregard for the sanctity of human life as this case . . . [t]he state of Missouri claims
from you the ultimate sentence of this case of death. Stand firm.” In his rebuttal
argument, the prosecutor emphasized the impact on the victims’ families with a
reference to his own young son, as well as the defense attorney’s son. Because the
prosecutor’s closing argument in the penalty case was brief, the improper remarks
constituted the core of the prosecutor’s closing.

       The Missouri Supreme Court held that the comments comparing petitioner’s
crimes to the gang shootings in Los Angeles as well as every other crime in Missouri’s
history were improper, and that the comments “may arguably have constituted
reversible error had a timely objection been raised." State v. Copeland, 928 S.W.2d
at 843. The court did not perform a separate analysis for the arguments in the guilt and
penalty phases of the trial. Ultimately, the Missouri Supreme Court declined to find
that the improper comments in the penalty case reached the level of a “manifest

                                            4
injustice” given the evidence presented against the petitioner at the guilt phase. See id.
at 844.

      On habeas review, the district court concluded that the prosecutor’s argument
had seriously prejudiced the defendant:

      Although the evidence of petitioner’s guilt was strong, the case for the
      death penalty was rather weak. There was no evidence that petitioner
      personally shot any of the victims. . . . There was substantial evidence that
      the primary actor in the entire scheme was Ray and that petitioner held a
      very minor role. In fact, most of the evidence at trial involved Ray’s
      actions and not petitioner’s. There appears to be no doubt that Ray not
      only was the scheme's primary actor, but was also its creator. Finally
      there was substantial evidence that Ray dominated and controlled his
      wife.

      Although these factors would not obviate guilt, they demonstrate that this
      is far from the typical situation in which a criminal defendant is sentenced
      to death. Nonetheless, the prosecutor tried to turn this case into such a
      case and did so by employing improper means. By raising the specter of
      hapless citizens gunned down by roving criminal gangs, the prosecutor
      inappropriately drew an analogy to completely different -- significantly
      more heinous -- criminals. Then, the prosecutor improperly elevated the
      severity of the crime by (1) assuring the jury that, despite any misgivings
      it might have about setting the penalty at death, it could be assured that
      this was the worst crime to ever occur in the state of Missouri, and (2)
      suggesting that if the worst case ever did not deserve the death penalty,
      then no case did. Still another effect was to imply that “lesser murders”
      had resulted in the death penalty.

Copeland v. Washington, No. 97-1123-CV-W-3, slip op. at 31-32.

      It is important to note at the outset that the state does not attempt to defend the
content of the prosecutor’s closing argument. At oral argument, the state conceded that

                                            5
the remarks in the prosecutor’s closing argument were improper. Rather, the state
argues that a lack of Supreme Court precedent on a prosecutor’s closing argument
during the penalty phase of a capital trial bars the petitioner’s claim under the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253-2254
(AEDPA).

       As a threshold matter, the parties disagree about the correct standard of review
to be applied under AEDPA. That question has been answered in the recent Supreme
Court decision Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). There, Justice
O'Connor set out the following standard of review:

      Section 2254(d)(1) places a new constraint on the power of a federal
      habeas court to grant a state prisoner's application for a writ of habeas
      corpus with respect to claims adjudicated on the merits in state court.
      Under § 2254(d)(1), the writ may issue only if one of the following two
      conditions is satisfied--the state-court adjudication resulted in a decision
      that (1) “was contrary to . . . clearly established Federal law, as
      determined by the Supreme Court of the United States,” or (2) “involved
      an unreasonable application of . . . clearly established Federal law, as
      determined by the Supreme Court of the United States.” Under the
      “contrary to” clause, a federal habeas court may grant the writ if the state
      court arrives at a conclusion opposite to that reached by this Court on a
      question of law or if the state court decides a case differently than this
      Court has on a set of materially indistinguishable facts. Under the
      “unreasonable application” clause, a federal habeas court may grant the
      writ if the state court identifies the correct governing legal principle from
      this Court’s decisions but unreasonably applies that principle to the facts
      of the prisoner’s case.

The Court also stated that, under the “unreasonable application” clause, a “federal
habeas court . . . should ask whether the state court's application of clearly established
federal law was objectively unreasonable.” Id. at 1521. See also Evans v. Rogerson,



                                            6
2000 WL 1182805, at *2 -*3 (8th Cir. D. Iowa Aug. 22, 2000) (reciting Williams
standard).

        The question still remains whether our previous discussions of the standard of
review survive Williams. While articulating the new standard, the Supreme Court also
rejected the standard previously used by the Fourth Circuit in Green v. French, 143
F.3d 865, 870 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999), which stated that
an unreasonable application only occurred if the state court applied federal law “in a
manner that reasonable jurists would all agree is unreasonable.” In Long v. Humphrey,
184 F.3d 758 (8th Cir. 1999), a case decided before Williams, we declined to follow
the approach of the Fourth Circuit. We decided two cases after Long, but before
Williams, that seemed to add an additional element to the AEDPA inquiry by stating
that “[f]ederal habeas relief should only be granted if the prosecutor’s closing argument
was so inflammatory and so outrageous that any reasonable trial judge would have sua
sponte declared a mistrial.” James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999).
See Sublett v. Dormire, 217 F.3d 598 (8th Cir. 1999) (same). Regardless of the status
of this standard after Williams, the language from these two cases does indicate that the
standard under AEDPA is a heightened one. As the Supreme Court held, a “federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must also be
unreasonable.” Williams, 120 S. Ct. at 1522. Thus we apply the newly-announced
standard in Williams here.

       The state next argues that because the Supreme Court has not discussed the
impact of a prosecutor’s improper closing argument during the penalty phase of a
capital case, AEDPA bars the petitioner’s claim. Contrary to the state’s assertion, it
is apparent to us that there are Supreme Court decisions on penalty phase closing
arguments. See Caldwell v. Mississippi, 472 U.S. 320, 340 n.7 (1985) (death sentence
vacated because prosecutor’s improper closing argument during penalty phase made

                                           7
it appear to jury that responsibility for the death penalty would be borne by appellate
court rather than by jury itself); Romano v. Oklahoma, 512 U.S. 1, 3 (1994)
(considering petitioner’s assertion that closing argument in capital sentencing hearing
violated petitioner’s due process rights, although concluding on the facts that no rights
were violated). There are also Supreme Court decisions on guilt phase closing
arguments that are relevant. See Donnelly v. DeCristoforo, 416 U.S. 637, 643 (1974)
(concluding that improper closing argument in guilt phase reaches level of
constitutional error if prosecutor’s comments “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) (same).2 Further, in Paxton v. Ward, 199 F.3d 1197, 1217-18
(10th Cir. 1999), the Tenth Circuit considered a claim regarding an improper closing
argument in the penalty phase of a capital case. While discussing the highly deferential
standard of review under AEDPA at some length, the Tenth Circuit concluded that the
closing argument constituted prosecutorial misconduct and warranted relief. Therefore,
despite the state’s claim that there is no precedent on penalty phase closing arguments,
the Supreme Court cases demonstrate otherwise.

        Turning to the merits of the issue, then, we must determine whether the
applicable Supreme Court precedents on closing argument were unreasonably applied,
depriving the petitioner of due process during her sentencing hearing. We believe that
relief is warranted. Aside from the Supreme Court cases previously cited, three recent

      2
       Indeed, if there is any distinction between guilt and penalty phase arguments,
it would seem that there should be a more searching review of the penalty phase as the
Eighth Amendment is implicated. Cf. California v. Ramos, 463 U.S. 992, 998-999
(1983) (“The Court . . . has recognized the qualitative difference of death from all other
punishments requires a correspondingly greater degree of scrutiny of the capital
sentencing determination”); Welsh S.White, Prosecutors’ Closing Arguments at the
Penalty Trial, 18 N.Y.U. Rev. L. & Soc. Change 297 (1991) (suggesting that courts
have been increasing review of closing arguments at sentencing hearings and
categorizing improper arguments requiring reversal into several groups, including
arguments in which prosecuting attorney has personally vouched for death penalty).
                                            8
Eighth Circuit cases have vacated a death sentence based on improper closing argument
during the penalty phase. See Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999), cert. denied
120 S.Ct. 510 (1999); Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995); Newlon v.
Armontrout, 885 F.2d 1328 (8th Cir. 1989). As we have stated, “[t]o the extent that
inferior federal courts have decided factually similar cases, reference to those decisions
is appropriate in assessing the reasonableness . . . of the state court’s treatment of the
contested issue.” Long v. Humphrey, 184 F.3d 758, 761 (8th Cir. 1999).

       The arguments in the Newlon, Antwine, and Shurn cases bear many similarities
to the argument here, and provide a framework for analysis of the closing argument in
this case. In Newlon, the prosecutor expressed his personal belief in the propriety of
the death sentence and implied that he had special knowledge outside the record;
emphasized his position of authority as prosecuting attorney of St. Louis; attempted to
link the defendant with several well-known mass murderers; appealed to the jurors’
personal fears and emotions; and asked the jurors to “Kill him now. Kill him now.”
Newlon, 885 F.2d at 1335. An almost identical argument, made by the same
prosecutor, was involved in Shurn. See Shurn, 177 F.3d at 667. In Antwine, the
prosecutor stated that death in the gas chamber would be “instantaneous” and argued
that the taxpayers should not have to continue to pay for the defendant’s room and
board while he continued to live in prison. See Antwine, 54 F.3d at 1362-1363.

       Here, as in Newlon, the prosecutor referred to facts not in evidence (the other
murders in all of Missouri’s history); drew a comparison to violent drug gangs, evoking
the jury’s fear of crime; and made references to his son and the defense attorney’s son.
This was the sort of argument that would result in “mob justice” rather than result in
a reasoned deliberation. Shurn, 177 F.3d at 668 (Wollman, J., concurring). Far from
being an isolated comment, the improper statements formed the crux of the prosecutor’s
argument for imposing the death penalty. The improper argument would have had a
significant prejudicial effect on the jurors, and it was unreasonable, in light of Supreme
Court precedent, to conclude that the argument did not result in a deprivation of due

                                            9
process. The district court correctly determined that the argument was improper and
the failure to object to the argument constituted ineffective assistance of counsel.
Accordingly, the petitioner’s death sentence is vacated.



B. Guilt Phase

       The petitioner further argues that she is entitled to a new trial because improper
portions of the prosecutor’s closing argument during the guilt phase of the trial deprived
her of due process. We do not agree. The improper portions of the argument occurred
when the prosecutor stated that this was the strongest case for deliberation in Missouri;
asserted that these were the worst crimes ever to happen in Missouri; and, at one point,
compared his own “traditional” marriage to the petitioner’s marriage.

       The district court stated that “[t]o describe the statements as improper is
charitable,” but held that the result would not have been any different, given the strong
evidence of guilt against the defendant. Copeland v. Washington, No. 97-1123-CV-W-
3, slip op. at 26. Under the framework articulated in the previous section, this is a
close question, as the argument approaches the line between prejudicial and non-
prejudicial argument. However, unlike the argument in the penalty phase, the improper
remarks were isolated, only a portion of a much longer argument, and were countered
by defense counsel in closing. In summary, the district court properly performed a
careful analysis of each challenged remark and concluded that the prejudice to the
petitioner was not significant.




                                           10
                        III. BATTERED SPOUSE DEFENSE

A.    Penalty Phase

       The petitioner was allowed to introduce expert testimony regarding battered
spouse syndrome at the penalty phase of the proceedings. She contends, however, that
the state's expert testimony should not have been admitted and that her counsel failed
to investigate adequately.

       On the ineffective assistance claim, the petitioner specifically cites a neighbor’s
report that Ray hit petitioner in the back with a board while the two were mending a
fence. Counsel failed to introduce the report at the penalty phase. The district court
found this omission harmless, given that other witnesses testified that Ray Copeland
had treated petitioner “like trash.” Copeland v. Washington, No. 97-1123-CV-W-3,
slip op. at 35.

       The petitioner also argues that the testimony of Dr. Jacks, who had performed
a court-ordered interview to determine the petitioner’s competency, violated her right
against self-incrimination and her right to counsel. At the penalty phase, Jacks testified
that the petitioner did not have symptoms consistent with battered spouse syndrome.
As the state could rebut expert testimony with its own expert witnesses, there was no
error in Jacks’ testimony. Cf. Buchanan v. Kentucky, 483 U.S. 402 (1987).

       What is far more troubling about these two claims is that Jacks later submitted
an affidavit stating that had he been aware of the incident with the board, he could not
have testified that the petitioner did not have symptoms stemming from battered spouse
syndrome. Further, a portion of the prosecutor’s closing argument used Dr. Jacks’
testimony to rebut the testimony of the petitioner’s expert witness. As we have already
determined that the penalty phase was constitutionally flawed due to the prosecutor’s


                                           11
improper closing argument and are already granting relief on the penalty phase, we
need not reach this issue.

B. Guilt Phase

        The petitioner was not allowed to present expert witness testimony on battered
spouse syndrome during the guilt phase of the proceedings. As the petitioner was not
prevented from presenting exculpatory evidence, a new trial is not required. The
evidence was excluded because trial counsel failed to give notice of a diminished
responsibility defense as required by Missouri statute.3 However, numerous witnesses,
including the petitioner’s children and other family members, did have the opportunity
to testify and recount their observations of the way in which the petitioner was treated
by her husband.

                            IV. OTHER ARGUMENTS

(1) Mootness of the Case

      The petitioner claims that the state’s appeal is moot for because the state failed
to receive a stay of the district court’s order, in accordance with Federal Rule of
Appellate Procedure 8. However, as the state correctly points out, the district court’s
opinion states: “Within forty-five days after this Order becomes final (including any
appeals that may be taken), the state shall either commence with the new sentencing
hearing or set Petitioner’s sentence at life in prison without the possibility of parole.”
Copeland v. Washington, No. 97-1123-CV-W-3, slip op. at 62-63 (emphasis added).


      3
         The defendant apparently no longer argues that the failure to give notice of a
diminished capacity defense was ineffective assistance of counsel. In any event, the
district court held that the issue had been waived. See Copeland v. Washington, No.
97-1123-CV-W-3, slip op. at 34.
                                           12
The language of the district court’s opinion, then, indicates that this appeal is properly
before us.4

(2) Sufficiency of the Evidence

       The petitioner argues that there was insufficient evidence adduced at trial to
support her convictions for the first degree murders, and, thus, her due process rights
were violated.5 We do not agree. As described in the facts section, there was
considerable evidence to support the convictions, including her storage of the victims’
clothes; her assistance with the paperwork and the bank accounts involved in the fraud;
her efforts to obviate any connection with the transients; the x’s on a list of names,
marking those who had been killed; and the letters to her husband regarding the
searches of the farm. Altogether, when viewed in the light most favorable to the
verdict, there was sufficient evidence to prove that the petitioner aided, agreed to aid,
or attempted to aid her husband in committing the murders. See Mo. Rev. Stat. §
562.041; State v. Ferguson, 887 S.W.2d 585 (Mo. 1994) (en banc). We therefore
agree with the district court that the petitioner is not entitled to relief on this basis.6


      4
       Of course, the better practice would have been for the state to have both filed
an appeal and sought a stay. See Burdine v. Johnson, 87 F.Supp.2d 711, 713-714 (S.D.
Tex. 2000) (ordering defendant released due to state’s failure to obtain stay in
accordance with district court’s opinion).
      5
        The petitioner further argues that, under Enmund v. Florida, 458 U.S. 782
(1982) and Tison v. Arizona, 481 U.S. 137 (1987), her participation was legally
insufficient to support the imposition of the death penalty under the Eighth Amendment.
Given that we are granting relief from the sentencing hearing, we find it unnecessary
to reach this argument.
      6
       The defendant also claims that there was insufficient evidence of her
individualized involvement to support the two aggravating factors for imposing the
death penalty at her sentencing hearing: (1) murder for profit; and (2) murder to silence
potential witnesses. Because we are granting relief from the sentencing hearing, we
                                            13
(3) Certificate of Appealability

      The petitioner argues that the district court erred in denying her a certificate of
appealability on two claims: (1) that the trial judge was biased; (2) that certain of her
statements were obtained in violation of her Miranda rights. The district court analyzed
the merits of both issues, see Copeland v. Washington at 16-18, 59-60, and ultimately
concluded that neither of these claims warranted relief. The district court, in this
instance, properly denied a certificate of appealability, as the petitioner had not made
a substantial showing of the denial of any federal constitutional right. See 28 U.S.C.
§ 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 520 (8th Cir. 1997).

                                   V. CONCLUSION

       We conclude that the prosecutor’s closing argument in the penalty case deprived
the petitioner of due process in her sentencing hearing. The district court thus correctly
granted a writ of habeas corpus and properly ordered that the state either hold a new
sentencing hearing or commute the petitioner’s sentence to life in prison without the
possibility of parole. We have reviewed the petitioner’s other claims of error in support
of a new trial, and conclude that a new trial is not warranted. The order of the district
court is affirmed in all respects.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




find it unnecessary to reach this claim.
                                           14
