                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2456
                                    ___________

Daryl Shurn,                             *
                                         *
               Appellant,                *
                                         * Appeals from the United States
                                         * District Court for the
v.                                       * Eastern District of Missouri.
                                         *
Paul Delo, Superintendent,               *
                                         *
               Appellee.                 *
                                    ___________

                              Submitted: January 12, 1999

                                   Filed: May 10, 1999
                                    ___________

Before RICHARD S. ARNOLD, BRIGHT, and WOLLMAN, Circuit Judges.
                           ___________

BRIGHT, Circuit Judge.

       A jury convicted Daryl Shurn of first-degree murder for his participation in the
shooting death of Charles Taylor. The trial court sentenced Shurn to death after the
jury failed to agree on punishment. Shurn appeals the denial of his petition for a writ
of habeas corpus.1 28 U.S.C. § 2254 (1999). He challenges his conviction and


      1
       The Hon. Jean C. Hamilton, Chief Judge, United States District Court for the
Eastern District of Missouri.
sentence. We affirm the conviction but vacate the death sentence. We remand with
instructions that the district court issue a writ of habeas corpus releasing Shurn from
the sentence and ordering the State of Missouri either to sentence Shurn to life
imprisonment without eligibility for probation or parole or to grant Shurn a new
penalty-phase trial.

I.    STATEMENT OF FACTS

      The Missouri Supreme Court briefly summarized the facts as follows:

             On July 6, 1987, Shurn and Weaver parked an Oldsmobile '98
      outside of Taylor's apartment complex. After a confrontation at Taylor's
      door, Shurn and Weaver chased him behind the complex, and Taylor was
      shot. The evidence was unclear whether Shurn, Weaver, or both shot
      Taylor. Shurn and Weaver then returned to the car. Weaver then left the
      car and again went behind the complex. More shots were fired. Weaver
      returned to the car, and Shurn and Weaver drove away. After a chase,
      police officers apprehended Shurn and Weaver.

State v. Shurn, 866 S.W. 2d 447, 455 (Mo. 1993) (en banc).

       The state charged Shurn with first-degree murder and first-degree armed criminal
action in violation of Mo. Rev. Stat. § 565.020.1 and Mo. Rev. Stat. § 571.015. At
Shurn's trial, the state presented evidence that Taylor stood as a probable witness in the
pending drug trial of Shurn's brother. The state admitted it could not prove that Shurn
shot Taylor.

       The jury found Shurn guilty of both charges on March 26, 1988. At the penalty
phase, the court instructed the jury to consider as aggravating circumstances whether
Taylor's murder involved "depravity of mind" and whether Taylor "was killed as a
result of his status as a potential witness." The court instructed the jury to consider as


                                           -2-
mitigating circumstances whether Shurn had no significant history of prior criminal
activity, whether Shurn acted as an accomplice and not the triggerman, and that Shurn
had five children and was a devoted family man. The jury returned a verdict stating it
was "unable to decide or agree on punishment." The trial court sentenced Shurn to
death after finding that Taylor was killed as a result of his status as a witness.

       The Missouri Supreme Court affirmed Shurn's conviction, sentence, and denial
of post-conviction relief. Shurn, 866 S.W.2d at 473. Shurn filed a petition for a writ
of habeas corpus in the United States District Court for the Eastern District of Missouri
on December 16, 1994. The court denied the petition on August 25, 1997. This court
granted a certificate of appealability on May 25, 1998. This appeal followed.

II.   THE ISSUES ON APPEAL

      Shurn raises five issues on appeal:

1.    Whether the prosecutor's penalty-phase closing argument violated due process;
2.    Whether the death sentence violated the Eighth Amendment requirement of
      individualized sentencing in that the trial court failed to make a particularized
      finding of Shurn's motive or mental state;
3.    Whether trial counsel's failure to prepare constituted ineffective assistance of
      counsel at sentencing;
4.    Whether the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by
      racially discriminating in the use of peremptory strikes to exclude blacks from
      the jury; and
5.    Whether the Missouri Supreme Court gave the death sentence meaningful
      proportionality review.

        We affirm the denial of Shurn's Batson claim. The record adequately supports
the trial court's determination that the prosecutor gave valid, race-neutral explanations

                                            -3-
for using peremptory strikes to exclude four blacks from the jury. As the Batson claim
provides the only grounds for challenging the conviction, we affirm the conviction.
However, we also hold that the prosecutor's penalty-phase closing argument violated
due process. This requires us to vacate the death sentence. Our ruling on the argument
makes it unnecessary to reach the remaining issues, all of which pertain to the validity
of the sentence.

III.      THE BATSON CLAIM

        We first address Shurn's Batson claim, as a Batson violation would require a new
trial. Batson held that a state may not use peremptory challenges to exclude individuals
from serving on a jury because of their race. Batson v. Kentucky, 476 U.S. 79 (1986).
The Missouri Supreme Court described the relevant portion of the voir dire as follows:

              After strikes for cause, the panel consisted of 48 potential jurors,
       including six blacks. The prosecutor peremptorily excluded four of the
       blacks: venirepersons Grider, Lenox, Webster, and Hughes. Shurn then
       made a timely Batson objection.
....
              The prosecutor explained: (1) that he struck venireperson Grider
       because she was a schoolteacher, was married to a pastor, and had earlier
       asked to be removed from the panel; (2) that he struck venireperson
       Lenox because she indicated she was reluctant to impose the death
       penalty unless the state proved that Shurn--and not his accomplice
       William Weaver--was the shooter, and he had requested the court to
       strike her for cause; (3) that he struck venireperson Webster because she
       "waffled" on whether she could impose the death penalty unless Shurn
       was the shooter, and seemed uninterested during voir dire; and (4) that
       he struck venireperson Hughes because she remarked, "we're not God,"
       did not seem truthful, and showed hostility towards the state's case by
       nodding when another venireperson raised the issue of race.

Shurn, 866 S.W.2d at 456.


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       We view the Batson issue as a close one. Shurn has indicated facts that could
support a finding of racial discrimination in the use of peremptory challenges.
However, the state trial court and the district court agreed that the prosecutor gave
valid, race-neutral reasons for excluding the black jurors. We cannot say that the trial
court clearly erred in finding that the prosecutor lacked discriminatory motivation. A
prosecutor's motive in excluding jurors presents a question of fact. See Gibson v.
Bowersox, 78 F.3d 372, 374 (8th Cir. 1996). In habeas proceedings, we presume the
correctness of state court findings of fact, and we may set them aside, absent
procedural error, only if they lack adequate support in the record. See Purkett v. Elem,
514 U.S. 765, 769 (1995). The record adequately supports the trial court's findings
regarding the prosecutor's motives. The prosecutor excluded five non-blacks and left
two blacks on the jury. He excluded non-black jurors exhibiting the characteristics
used to justify striking the black jurors. The transcript supports most of the
explanations given for the strikes. Accordingly, we affirm the denial of Shurn's Batson
claim.

IV.   THE PROSECUTOR'S CLOSING ARGUMENT

      We turn now to Shurn's claim that the prosecutor's penalty-phase closing
argument violated due process. This requires us to determine whether Newlon v.
Armontrout, 885 F.2d 1328 (8th Cir. 1989), controls the disposition of the case. In
Newlon, this court determined that the prosecutor's improper penalty-phase closing
argument violated due process and required reversal of the death sentence. To facilitate
the analysis we now set forth the relevant portions of the arguments in each case as
follows:

Closing Argument in Newlon                        Closing Argument at Shurn's Trial

At the very worst, if it doesn't [deter],         I'm asking you to take an eye for an eye.
you have simply given Rayfield what he            The Old Testament--that still applies


                                            -5-
deserves and that's an "eye for an eye              today. There are times it's appropriate
and a tooth for a tooth."                           in my opinion. This is one of them.

       You know–when I talk about                   Passion killings you're never going to
sending out a message-well, I know the              deter. The Charles Mansons of the
Charles Mansons wouldn't hear the                   world, you're not going to deter them.
message, or the Richard Specks or the               They are crazy. Charles Manson was
"sons of Sam"-those kinds of people                 nuts. He deserves to spend the rest of
wouldn't hear it because those people               his life in prison. Some of you wouldn't
are insane-legally responsible for what             want to kill him, nonetheless, because
they did, but they wouldn't get this kind           he's a sick, sick person. But he would
of message, and in the same-a truer                 not hesitate to kill. I would give him the
fashion, he's not insane. This was                  death penalty, but I can see where some
simply a business venture-you know, he              people wouldn't. But certain people,
didn't hear any strange voices speaking             their crimes are so deviant that you say
to him, he just wanted some money, ...              we'll just put you away. But this was a
                                                    business decision. This is the kind of
                                                    crime that can be deterred.

Killing in self-defense is not bad; killing         You know, it's not always wrong to kill.
in war is not bad; taking Rayfield                  It's maybe always difficult to kill; but if
Newlon's life is not bad.                           you kill in self-defense, that's not
                                                    wrong. If you kill in a just war, that is
       If Rayfield was going to harm                not wrong. It's right. If somebody is
your child, would you kill him? Would               going to kill your child and you have a
you have prevented this killing if you'd            chance to kill them to prevent it, would
been in the Conveniency store with a                you do it? Of course. Kill Daryl Shurn.
gun, and you could have saved Mr.
Dave's life? Would you have killed
Rayfield? I think you would have-at
least, I hope you would have had the
courage to do either one of those. If
you think you would have, kill him now.
Kill him now.




                                              -6-
I've been a prosecutor for ten years and           I'm the top law enforcement officer in
I've never asked a jury for a death                this county and I'm the one that decides
penalty, but I can tell you in all candor,         in which cases to ask for the death
I've never seen a man who deserved it              penalty and which cases we won't. You
more than Rayfield Newlon.                         people have to tell me: Is this an
                                                   appropriate case or isn't it? You're the
Today I'm talking to you as Prosecuting            community. You represent society.
Attorney of this County-the top law                You represent all those potential
enforcement officer in St. Louis County.           witnesses out there that have the
                                                   courage to come forward. You have to
Id., at 1339-42.                                   tell me: Is this a case where I should
                                                   ask for the death penalty or am I
                                                   wasting my time?             You're the
                                                   community.

                                                       I'm telling you there's no case that
                                                   could be more obvious than Daryl
                                                   Shurn's and William Weaver's was.

                                                   Tr. Vol. III at 1165-66, 1168, 1171-72.

       In Newlon the district court determined that the argument improperly "(1)
expressed [the prosecutor's] personal belief in the propriety of the death sentence and
implied that he had special knowledge outside the record; (2) emphasized [the
prosecutor's] position of authority as prosecuting attorney of St. Louis County; (3)
attempted to link [the defendant] with several well-known mass murderers; (4)
appealed to the jurors' personal fears and emotions; and (5) asked the jurors to 'kill him
now. Kill him now.'" Newlon, 885 F.2d at 1335. As we observed, the district court
held that the argument

      infected the penalty proceeding with an unfairness that violates due
      process. The remarks were neither isolated nor ambiguous. . . . By
      contrast, the jury was subjected to a relentless, focused, uncorrected
      argument based on fear, premised on facts not in evidence, and calculated


                                             -7-
      to remove reason and responsibility from the sentencing process. This
      constitutional error requires that the sentence of death be vacated.

Id. at 1338.

        We approved of the district court's ruling. We determined that the argument was
"filled with improper statements" and that, considered in its entirety, the argument was
"obviously improper and prejudicial." Id. at 1337. We held that the argument violated
due process and affirmed the reversal of the death sentence. Id. at 1336 n. 9.

       At Shurn's trial, the same prosecutor gave essentially the same argument that
required reversal of the death sentence in Newlon. The district court attempted to
distinguish the arguments, but we view them as indistinguishable. The prosecutor
emphasized his position of authority and expressed his personal opinion on the
propriety of the death sentence. He attempted to link Shurn with Charles Manson, a
well-known mass murderer. He appealed to the jurors' fears and emotions and told
them to kill Shurn. The arguments differed slightly in degree but not in emphasis. As
in Newlon, the prosecutor's argument was "filled with improper statements" and was
"obviously improper and prejudicial." The similarity of the arguments renders Newlon
dispositive.

       Though improper, the argument does not require reversal of the sentence unless
it amounted to prejudicial error. This requires determining whether a reasonable
probability exists that the error affected the outcome of the penalty phase. Id., at 1338.
In our view, the argument amounted to prejudicial error. The state did not prove that
Shurn did the shooting. The jury disagreed on punishment. Consequently, we must
assume it likely that the jury would have sentenced Shurn to life imprisonment rather
than death if not exposed to the improper argument.

      We hold that the prosecutor's penalty-phase closing argument violated due
process and requires reversal of the death sentence. In Missouri, first degree murder

                                           -8-
carries a punishment of death or life imprisonment without eligibility for probation or
parole. Mo. Rev. Stat. § 565.020(2). We therefore remand with instructions for the
district court to issue a writ of habeas corpus releasing Shurn from the death sentence
and ordering the State of Missouri either to sentence Shurn to life imprisonment without
eligibility for probation or parole or to grant Shurn a new penalty-phase trial.

V.    CONCLUSION

       In summary, we affirm Shurn's conviction for first-degree murder. The record
adequately supports the trial court's determination that the prosecutor gave valid, race-
neutral reasons for excluding four blacks from the jury. However, we vacate the death
sentence for the reason that the prosecutor's improper penalty-phase closing argument
violated due process.

WOLLMAN, Circuit Judge, concurring.

      I concur fully in the court’s holding on the Batson issue. I also concur in the
holding that the prosecutor’s penalty-phase closing argument requires us to set aside
the death sentence. I write separately only to express my view why the closing
argument went beyond the bounds of constitutionally permitted advocacy.

      We concluded our opinion in Newlon by finding that Newlon had been unfairly
prejudiced by the prosecutor’s improper argument because, among other things, the
argument was “‘calculated to remove reason and responsibility from the sentencing
process.’” Newlon, 885 F.2d at 1338 (quoting Newlon v. Armontrout, 693 F. Supp.
799, 808 (W.D. Mo. 1988)). What I find beyond the pale in Newlon is that portion of
the closing argument in which the prosecutor stated:

           If Rayfield [Newlon] was going to harm your child, would you kill
      him? Would you have prevented this killing if you’d been in the

                                          -9-
      Conveniency store with a gun, and you could have saved Mr. Dave’s life?
      Would you have killed Rayfield? I think you would have--at least, I hope
      you would have had the courage to do either one of those. If you think
      you would have, kill him now. Kill him now.

Newlon, 885 F.2d at 1342.

      So also with respect to that portion of the closing argument in the present case
in which the prosecutor said,

      You know, it’s not always wrong to kill. It’s maybe always difficult to
      kill; but if you kill in self-defense, that’s not wrong. If you kill in a just
      war, that is not wrong. It’s right. If somebody is going to kill your child
      and you have a chance to kill them to prevent it, would you do it? Of
      course. Kill Daryl Shurn.

       To me, the statements “[K]ill him now. Kill him now,” and “Kill Daryl Shurn,”
are an appeal to blood lust and mob justice rather than a call for the jury to return a
sentence of death after calm, reasoned deliberation. This strident appeal to primitive
emotion could not have done other than to touch the raw nerve of vengeance that lies
within us all. The resulting “diminution of the jury’s sense of responsibility
undermine[d] the Eighth Amendment’s heightened need for ‘the responsible and
reliable exercise of sentencing discretion’ in capital cases.” Antwine v. Delo, 54 F.3d
1357, 1363 (8th Cir. 1985) (quoting Caldwell v. Mississippi, 472 U.S. 320, 329
(1985)).

       This is not to say that a prosecutor should not argue for a death sentence with
passion and conviction, for if the death penalty is to serve any valid purpose it should
be sought and imposed in those cases in which the citizens of a state have determined
that there are certain crimes the nature of which call for no lesser penalty. For those
to whom the death penalty in all circumstances represents a barbaric, unconstitutional

                                          -10-
punishment, no doubt it is a contradiction in terms to say that a jury can impose it in a
rational, deliberative manner. Yet that is what the constitution requires, which is why
juries are required to weigh the inhumanity of the defendant’s deeds against the
defendant’s humanness. The call to “Kill him. Kill him now,” diverts the jury from its
solemn duty of making that calculation, for it is an appeal to base emotion rather than
to the higher instinct of moral indignation, which, ultimately, is the foundation upon
which the criminal law is based.

      There recently appeared a thoughtful column on the subject of capital
punishment, which says in part:

      Can capital punishment possibly be civilizing? Might it be sometimes
      indispensable? Human nature, without a social contract, leads people to
      pursue and punish murderers in their own way. The social contract
      restrains man’s impulse toward rough justice. The contract states: Our
      authorities, acting under law for the community, will find the killers, try
      them and punish them. Implicit is the promise that the punishment will be
      sufficient to satisfy the need not only for moral satisfaction and justice but
      also for some measure of emotional satisfaction, a catharsis by -- to admit
      it -- legally ritualized revenge. A public hanging used to be a celebration
      of justice. The catharsis may have barbaric roots, yet by paradox is an
      essential civilizing instrument.

Lance Morrow, “Something We Cannot Accept,” TIME, March 8, 1999, at 92.


      If indeed the imposition of the death penalty is a form of “legally ritualized
revenge,” then, to be constitutionally acceptable, that revenge -- societal retribution,
really -- must be the result of reasoned deliberation and the exercise of moral judgment,
rather than the product of a visceral response to the most primitive of emotions.




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A true copy.


      ATTEST:


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




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