                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                 No. 97-2100WM
                                 _____________

James E. Rodden,                        *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Paul Delo; William Webster,             *
                                        *
                   Appellees.           *
                                  _____________

                            Submitted: March 11, 1998
                                Filed: May 4, 1998
                                 _____________

Before McMILLIAN, FAGG, Circuit Judges, and BOWMAN,* Chief Judge.
                           _____________

FAGG, Circuit Judge.


       James E. Rodden appeals the district court’s denial of his habeas petition
attacking his conviction and sentence for the capital murder of Terry Trunnel. See 28
U.S.C. § 2254. We affirm.

       Around 11:00 p.m. one night in December 1983, Rodden offered acquaintance
Terry Trunnel a ride home from a bar. On the way, they stopped by Rodden’s


      *
       The Honorable Pasco M. Bowman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 18, 1998.
apartment to smoke some marijuana. Rodden’s roommate, Joseph Arnold, was there.
Rodden’s former girlfriend called about purchasing some furniture from Rodden, who
was moving to California with Arnold the next day. When Rodden demanded to see
her, she refused, but Rodden went to her apartment anyway. She would not answer her
door and called the police. When Rodden returned to his apartment at 2:00 a.m., he
saw Arnold and Trunnel “making love.” According to Rodden, they were in Rodden’s
bed. Rodden claims that although he heard no disturbance, he later saw blood on the
floor, questioned Arnold, and Arnold came at him with a bloody knife. Rodden says
a struggle ensued, and Rodden stabbed Arnold in self-defense. As Rodden tells it,
Arnold had already stabbed Trunnel in Rodden’s bedroom. After killing Arnold,
Rodden spread lamp oil around the apartment and on Trunnel’s body and set the
apartment on fire, to “make it all go away.” Taking a bloody knife with him, Rodden
fled north in Arnold’s car around 6:00 a.m. He was bleeding from deep cuts in his right
hand, which could have resulted from his hand slipping forward onto a knife blade as
he stabbed someone. Rodden later passed out from blood loss and crashed Arnold’s
car into a house.

       A maintenance man who entered the apartment around 8:00 a.m to install new
cabinets discovered the bloody bodies of Arnold and Trunnel and a smoldering fire.
Arnold had been stabbed eight times in the face, head, chest, and back. He lay in a
pool of his own blood on the floor of his bedroom. Trunnel had been stabbed eleven
times in the chest, back, arm, and leg. Her faced was bruised and her arm was broken.
Cords were tied around her left wrist and right ankle. Her body was blistered and
charred in spots from being burned. Contrary to Rodden’s story, blood evidence
showed she had been killed in Arnold’s bedroom and then dragged into Rodden’s
bedroom. Her blood was on the knife Rodden carried in fleeing the scene.

        Missouri brought separate charges against Rodden for the capital murders of
Trunnel and Arnold. See Mo. Rev. Stat. § 565.001 (1978) (repealed 1984). The State
first prosecuted Rodden for Arnold’s murder. A jury convicted Rodden, and he was

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sentenced to life imprisonment without the possibility of parole for fifty years. See
State v. Rodden, 713 S.W.2d 279 (Mo. Ct. App. 1986). Defended by the same
attorney, Rodden was later tried for and convicted of murdering Trunnel. This time,
Rodden received the death penalty. The Missouri Supreme Court affirmed Rodden’s
conviction and sentence for murdering Trunnel, see State v. Rodden, 728 S.W.2d 212
(Mo. 1987), and affirmed the denial of postconviction relief, see Rodden v. State, 795
S.W.2d 393 (Mo. 1990). The United States Supreme Court denied certiorari. See
Rodden v. Missouri, 499 U.S. 970 (1991). Rodden then filed this federal petition for
a writ of habeas corpus, and the district court denied Rodden’s petition.

       In his appeal, Rodden first contends his death sentence for killing Trunnel
violates double jeopardy because after hearing “substantially the same evidence,” the
jury in the Arnold murder trial sentenced Rodden to life imprisonment. Rodden asserts
collateral estoppel prevents Missouri from relitigating the issue of capital punishment
for the same set of murders that an earlier sentencing jury considered. Rodden relies
on Bullington v. Missouri, 451 U.S. 430, 446 (1981) (double jeopardy prevents second
sentencing hearing after retrial for same murder), and Ashe v. Swenson, 397 U.S. 436,
446 (1970) (based on collateral estoppel theory, double jeopardy precludes trial for
robbing second victim of single robbery incident after acquittal for robbing another
victim of same incident). Rodden’s reliance is misplaced.

        The Double Jeopardy Clause protects against multiple punishments for the same
offense, see Jones v. Thomas, 491 U.S. 376, 381 (1989), but does not prevent a state
from selecting independent penalties for separate crimes, see Kokoraleis v. Gilmore,
131 F.3d 692, 695 (7th Cir. 1997). “Each additional crime creates a fresh exposure to
punishment, which may be cumulative--indeed, must be cumulative if there is to be
deterrence for extra offenses.” Id. Thus, a serial killer may be sentenced to death for
killing someone after being sentenced to life imprisonment for killing someone else in
a separate incident. See id. Similarly, a killer who murders two people at the same
time may be tried separately for the two distinct murders and sentenced separately for

                                          -3-
each murder. See Therrien v. Vose, 782 F.2d 1, 5 (1st Cir. 1986); Miller v. Turner, 658
F.2d 348, 350-51 (5th Cir. 1981); see also Ciucci v. Illinois, 356 U.S. 571 (1958) (per
curiam) (when a killer murders several people in the same incident, a state may
separately prosecute the killer for the murder of each victim). We conclude Rodden
was not put in jeopardy twice for the same offense. The jury in the first trial selected
the punishment for Rodden’s murder of Arnold, and the jury in the second trial selected
the punishment for Rodden’s murder of Trunnel. The murders were two distinct
offenses that carried separate penalties under Missouri law.

       Rodden contends his attorney ineffectively represented him on direct appeal
because the attorney failed to raise plain error challenges to the constitutionality of the
prosecutor’s statements during voir dire and closing argument in the penalty phase. To
succeed on an ineffective assistance claim, Rodden must show his attorney’s
performance was deficient and the deficiency prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).              Rodden must show no reasonable,
professional attorney could have omitted the plain error claims from appellate review,
see Six v. Delo, 94 F.3d 469, 476 (8th Cir. 1996), cert. denied, 117 S. Ct. 2418 (1997),
and there is a reasonable probability the result on appeal would have been different if
the attorney had raised the plain error claims, see Reese v. Delo, 94 F.3d 1177, 1185
(8th Cir. 1996), cert. denied, 117 S. Ct. 2421 (1997). Counsel’s failure to attack the
prosecutor’s comments as plain error on appeal was not ineffective assistance of
counsel because, as discussed below, Rodden’s constitutional challenges to the
comments fail on the merits. See Six, 94 F.3d at 477.

       Rodden asserts his appellate attorney should have raised a claim that the
prosecutor inaccurately described the sentencing procedure and impermissibly
minimized the jury’s sense of responsibility for imposing the death sentence in violation
of the Eighth Amendment. See Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985)
(holding Eighth Amendment prohibits imposition of death sentence by a sentencer that
has been misled to believe the responsibility for deciding the appropriateness of the

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death sentence rests elsewhere). In support of his assertion, Rodden points to some of
the prosecutor’s remarks during the death qualification stage of voir dire and the
prosecutor’s closing argument during the penalty phase.

      Although Caldwell was decided before Rodden’s conviction became final on
appeal, the State contends application of Caldwell, which involved remarks during the
penalty phase, to remarks during voir dire is a new rule that should not be applied
retroactively on collateral review. See Teague v. Lane, 489 U.S. 288, 310 (1989).
Because the State did not raise the Teague issue in the district court, we need not
consider it. See Bannister v. Delo, 100 F.3d 610, 622-23 (8th Cir. 1996), cert. denied,
117 S. Ct. 2526 (1997). Nevertheless, we reject the State’s assertion that application
of Caldwell to voir dire remarks is a new rule for Teague purposes. In evaluating a
Caldwell claim, courts consider the entire trial scene, including jury selection, the guilt
phase, the penalty phase, and the sentencing hearing, examining both the court’s
instructions and the attorneys’ remarks. See Davis v. Singletary, 119 F.3d 1471, 1482-
85 (11th Cir. 1997), petition for cert. filed, No. 97-8452 (U.S. Jan. 27, 1998); Sawyer
v. Butler, 881 F.2d 1273, 1286 (5th Cir. 1989) (en banc); Harich v. Dugger, 844 F.2d
1464, 1474, 1476 (11th Cir. 1988); see also Roberts v. Bowersox, No. 96-3789, 1998
WL 86559, at *2-3 (8th Cir. Mar. 3, 1998); Driscoll v. Delo, 71 F.3d 701, 711 n.8 (8th
Cir. 1995), cert. denied, 117 S. Ct. 273 (1996). Although remarks during the guilt
phase of the trial are less likely to have an effect on sentencing than remarks during the
penalty phase, see Darden v. Wainwright, 477 U.S. 168, 183 n.15 (1986), it is possible
that comments about sentencing during voir dire could mislead the jury into believing
the responsibility for imposing a death sentence rested elsewhere. We thus turn to the
prosecutor’s remarks in this case.

       During voir dire, the prosecutor asked potential jurors whether they understood
that they only recommended a sentence to the judge. If the jury recommended death,
the judge could impose a sentence of either life imprisonment or death, but if the jury
recommended a life sentence, the judge could not impose a death sentence. The

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prosecutor also said the judge has veto power over a jury’s death recommendation and
is in effect a thirteenth juror. During closing argument in the penalty phase, the
prosecutor said a jury recommendation of the death penalty would send a message,
whether or not the judge actually sentenced Rodden to death.

        The prosecutor’s remarks did not misstate Missouri law or mislead the jury about
the significance of its role. See Roberts, 1998 WL 86559, at *3. Unlike the jury in
Driscoll, 71 F.3d at 711, Rodden’s jury was not told its decision didn’t matter. See
Roberts, 1998 WL 86559, at *3. We are satisfied the jury understood the seriousness
of its sentencing role. In his penalty-phase closing argument, defense counsel referred
to the prosecutor’s argument that the jury merely recommended a sentence to the judge,
then eloquently argued that each of the jurors would be responsible for Rodden’s death
and that it was their decision, not “a decision of the judge or a decision of the Missouri
Supreme Court or . . . anybody else.” The court reinforced this point when it instructed
the jury, “It is your duty and yours alone to decide upon the punishment,” “whether [a
death sentence] is to be your final decision rests with you,” the lawyers’ arguments are
not evidence, and “under the law it is your primary duty to fix punishment.” We thus
conclude Rodden’s Caldwell claim is unavailing.

      Rodden also contends his appellate attorney should have claimed the State’s
penalty-phase closing argument violated his right to due process. See id. Improper
argument violates due process when the argument is so egregious that it renders the
entire trial fundamentally unfair. See Darden, 477 U.S. at 181. To decide whether
improper argument violates due process, we consider the type of prejudice that arose
from the argument, what defense counsel did to minimize the prejudice, whether the jury
received proper instructions, and whether there is a reasonable probability of a different
sentencing decision absent the improper argument. See Miller v. Lockhart, 65 F.3d 676,
683 (8th Cir. 1995).




                                           -6-
       Rodden challenges the prosecutor’s penalty-phase argument that the jury should
recommend a death sentence so Rodden would not get Trunnel’s murder “free,” and that
the jury merely recommends a sentence to the judge, who is ultimately responsible for
sentencing Rodden to death. Rodden also complains of references to the Bible, war,
Harry Truman, quickness of death in the gas chamber, and the unlikelihood that Rodden
would actually be executed. Specifically, the prosecutor argued:

      The judgment and sentence of the court and the jury in [the trial for killing
      Arnold] was for life in prison without probation or parole for fifty years.
      . . . Now, if James Rodden killed two people and he got fifty years in
      prison without parole for killing one person, does he get the murder of the
      second person free? Another fifty years without parole means nothing.
      . . . Now, defense attorneys say, they’ll say, “Well, if you recommend that
      he die he may wind up in the gas chamber and he may languish there for
      as long as twenty or thirty minutes.” Ladies and gentlemen, that’s glitter.
      The ultimate decision on whether or not James Rodden will have to face
      his responsibility is in the hands of the judge. If you return a verdict
      recommending a death sentence, and it is important that at least at some
      point in his life or some fraction, if he never has to be executed in his life,
      years away, if he never does have to face it, the fact that he had to live
      under it for even between now and thirty days from now when he’s
      sentenced, he deserves that if he’s never executed, if he’s never executed
      he deserves to sit down there with those people on death row. . . . Now,
      if [Rodden] gets fifty years in prison with no probation and parole for
      killing Joe Bob Arnold, my question to you is should he get the second
      one free? Should he not be punished for the murder of Terry Trunnel?
      For to return a verdict strapping the judge to, forcing him to consider only
      fifty years without parole, is no punishment whatsoever. . . . If a sentence,
      or at least a recommendation from this jury, saves one innocent life . . .
      a recommendation of the death penalty by you, whether the judge actually
      sentences him to death or not, sends a message. . . . I had a friend, a very
      good friend, who died in Viet Nam so that you . . . could be free from fear
      and violence. And I know some of you may have had friends who died
      in other wars. And if they died honorably so you could be free from fear,
      why is it so wrong that somebody like this should die dishonorably for the



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      same reason? . . . [Y]ou’ve heard of the Bible story of the Good
      Samaritan. We all know it. The Good Samaritan is a story of a man
      who’s brutally mugged and murdered and left on the side of the road to
      die. And along come a number of people who help this man . . . . But
      what the story doesn’t tell you about is what kind of person mugged and
      raped and left that person on the side of the road to die. James Rodden
      is that type of person. . . . Now, in closing, ladies and gentlemen, . . . this
      is not an easy decision. But, I ask you, when you go back and you weigh,
      if he got fifty years for killing one person, if we give him fifty years for
      killing another one and don’t let the judge even consider your
      recommendation of the death penalty, what punishment is there for
      murdering that girl, for murdering the second person? . . . [The Bible
      says,] “Blessed are the merciful for they shall receive mercy.” It doesn’t
      say, “Blessed are the wicked and the brutal and the mean and cruel for
      they shall receive mercy.” And if even God didn’t give mercy for that,
      why should you? . . . Please, don’t let that American feeling of
      forgiveness [sic], just like Harry Truman, you’re a public servant. The
      buck stops right here.

(Trial Trans. at 740-51.) Contrary to Rodden’s assertion, the prosecutor did not say
Rodden would probably never be executed or that death by lethal gas would be
instantaneous. We see nothing wrong with the prosecutor’s allusion to Harry Truman,
which the prosecutor used to emphasize the jury’s grave responsibility. The
prosecutor’s biblical references--that Rodden was like the person who attacked the
victim helped by the Good Samaritan, and that Rodden didn’t deserve mercy because
he was cruel rather than merciful--emphasized Rodden’s individual character, see
Antwine v. Delo, 54 F.3d 1357, 1364 (8th Cir. 1995), rather than invoked the wrath of
God, see Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir. 1994). In context, the
prosecutor’s statements about the second murder being free urged the jury to impose
additional punishment for the additional crime. And in commenting that another jury
had convicted Rodden of killing Arnold, the prosecutor did not suggest the outcome of
the Arnold murder trial should control the jury’s decision in the Trunnel murder case.
Rather, the prosecutor merely pointed out that Rodden was a multiple killer. The jury



                                           -8-
could properly consider Rodden’s earlier crimes in deciding whether to sentence him
to death. See Wise v. Bowersox, No. 97-1139, 1998 WL 67135, at *6 (8th Cir. Feb.
20, 1998).

        Even if the prosecutor’s remarks were improper, defense counsel’s penalty-
phase closing argument minimized any prejudice. As we said earlier, Rodden’s
attorney countered the prosecutor’s comments about the jury only recommending a
sentence to the judge. As for the prosecutor’s argument about the second murder being
“free,” defense counsel argued the State prosecuted the Arnold and Trunnel murder
cases separately to get two cracks at the death penalty. In addition, Rodden’s attorney
pointed out Rodden would be seventy-four when he could be paroled for killing Arnold,
so if the jury wanted to punish Rodden for Trunnel’s murder, it could “give him another
fifty years.” The court also properly instructed the jury. Under the circumstances, we
cannot say there is a reasonable probability the jury would have chosen a life sentence
absent the prosecutor’s argument. Because the prosecutor’s closing argument did not
violate due process, the failure of Rodden’s attorney to raise the due process claim as
plain error on appeal is not ineffective assistance of counsel. See Six, 94 F.3d at 477.

       Rodden next claims his trial attorney was ineffective because he failed to
investigate and present mitigating evidence during the penalty phase. As potential
mitigating evidence, Rodden points just to his family’s testimony. Rodden’s trial
attorney interviewed Rodden’s parents before the Arnold murder trial and decided only
his mother should testify. Her brief testimony, that Rodden was twenty-four and had
“emotional problems from time-to-time,” covers less than one page of the transcript.
At the state postconviction hearing following the Trunnel trial, she blamed Rodden’s
problems on the school system and the police department. Rodden’s father testified
Rodden was “overactive,” and Rodden’s brothers testified they had close relationships
with Rodden and participated in Cub Scouts together. Rodden’s trial attorney testified
he believed the substance of the family’s testimony was not particularly good, and
when the penalty phase of the Trunnel murder trial ended at about 10:30 p.m., he made


                                          -9-
a strategic decision to submit the case to the jury that night rather than present
marginally favorable family testimony the next day, in the hope the jury would be too
tired to argue about the death penalty in the early morning hours and would impose a
life sentence instead. The Missouri courts found the attorney’s decision not to call
Rodden’s family members as witnesses was a matter of trial strategy, and there was
“no clear evidence that the testimony of [Rodden’s] relatives would have been
beneficial.” 795 S.W.2d at 397. The decision not to call family members as witnesses
in the penalty phase is a strategic one that we will not second-guess in hindsight. See
Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir. 1998). Rodden must overcome a
strong presumption that the strategy was reasonable. See id. We conclude defense
counsel’s strategy was not unreasonable, and it is not reasonably probable the jury
would have imposed a life sentence if Rodden’s family had testified at the penalty
phase, see Strickland, 466 U.S. at 694.

        Rodden also asserts he received ineffective assistance of trial counsel because
his attorney did not call Angel Duffy, a fifteen-year-old girl, as a witness in the trial’s
guilt phase. At the state postconviction hearing, Duffy testified she was with Arnold
at his apartment from about 6:00 p.m. to 10:00 p.m. on the night he was killed. Duffy
said Arnold had been drinking and acting violently around 8:00 p.m. and had broken
a coffee table around 9:00 p.m., but he had calmed down by the time she left at 10:00
p.m., before Rodden and Trunnel arrived. Trial counsel explained he did not call Duffy
as a witness because he believed her testimony would not really help Rodden’s case
and she contradicted part of Rodden’s testimony. We believe her testimony that
Arnold had acted violently about nine hours before the murders but then settled down
would not have been especially helpful, and her testimony about Arnold breaking the
coffee table around 9:00 p.m. was inconsistent with Rodden’s statement that Arnold
broke the table later in Rodden’s presence. We decline to second-guess counsel’s
strategic decision not to call Duffy. See Dodd v. Nix, 48 F.3d 1071, 1075 (8th Cir.
1995). Given the overwhelming circumstantial evidence against Rodden, we cannot
say there is a reasonable likelihood the jury would have acquitted Rodden of capital


                                           -10-
murder or sentenced him to life if Duffy’s testimony had been admitted in the trial’s
guilt phase. See Strickland, 466 U.S. at 694.

        Last, Rodden contends his Fifth Amendment rights were violated when the
prosecutor used Rodden’s testimony from the Arnold murder trial as evidence in the
State’s case-in-chief in the Trunnel murder trial. Rodden contends his waiver of his
Fifth Amendment rights in the Arnold murder trial did not waive his Fifth Amendment
rights in the Trunnel murder trial. In the state courts and federal district court, Rodden
raised his Fifth Amendment claim only in the context of ineffective assistance of trial
counsel, so we consider the claim only in that context here. See Sweet v. Delo, 125
F.3d 1144, 1149 (8th Cir. 1997), cert. denied, 118 S. Ct. 1197 (1998). We conclude
Rodden suffered no prejudice from the testimony’s admission because there was
overwhelming evidence against him. See Strickland, 466 U.S. at 694. Further,
Rodden’s testimony from the Arnold murder trial presented Rodden’s defense that
Arnold had killed Trunnel, without subjecting Rodden to fresh cross-examination.
Thus, it is not surprising that Rodden’s attorney said he had no objection to the
testimony’s admission at the Trunnel murder trial.

       Having considered all of Rodden’s arguments, we affirm the district court’s
denial of Rodden’s habeas petition.

      A true copy.

             Attest:

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




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