                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2804
                                    ___________

John J. Coutee,                       *
                                      *
           Petitioner-Appellant,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Western District of Missouri.
Dave Dormire; Jeremiah W. Nixon,      *
                                      *      [UNPUBLISHED]
           Respondents-Appellees.     *
                                 ___________

                              Submitted: September 15, 1999

                                   Filed: October 13, 1999
                                    ___________

Before BOWMAN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

       In July 1991, John J. Coutee (hereinafter “Coutee”) contacted the police in
Springfield, Missouri, complaining that someone had broken out some windows in his
car and threatening to shoot whomever was responsible. On July 23, 1991, Maurice
Baker was fatally shot in the head when an assailant fired thirteen shots into a group
of black men standing outside a house near Coutee's residence.

       In a state court jury trial, the prosecution presented evidence connecting Coutee
to the weapon used to murder Mr. Baker and revealing Coutee's use of racial epithets
and admissions to committing the crime to a neighbor and a cell mate. Following
conviction for second degree murder and armed criminal action, Coutee appealed
challenging the relevancy of testimonial evidence portraying him as a racist. Coutee
also argued the court should have declared a mistrial sua sponte based on the
prosecutor's statement in opening argument1 that Coutee was a racist. The Missouri
Court of Appeals affirmed, finding the testimonial evidence relevant to show motive
or intent and to provide the jury a complete and coherent picture of the circumstances
surrounding the crime under the res gestae exception. State v. Coutee, 879 S.W.2d
762, 767-68 (Mo. Ct. App. 1994). Finding that the defendant did not raise the
prosecutorial misconduct issue at trial, the Missouri Court of Appeals reviewed the
issue under the plain error rule "ex gratia." Id. at 766. The court of appeals found
ample evidence in the record to support the prosecutor's statements2 and found no plain
error in the court failing to declare a mistrial.3 Id. at 766-67.

      In reviewing the petition for a writ of habeas corpus under 28 U.S.C. § 2254, the
federal district court4 held that the Missouri Court of Appeals’ resolution of Coutee's
claims was neither based on an unreasonable determination of the facts in light of the
evidence nor a misapplication of federal law. Coutee v. Dormire, No. 97-3142, Order



      1
       Coutee complained of statements made during opening argument, however, the
Missouri Court of Appeals concluded the statements about which Coutee complained
are found in the opening portion of the State's closing argument. State v. Coutee, 879
S.W.2d 762, 766 n.1 (Mo. Ct. App. 1994).
      2
       The record contains admissions to a cell mate and a neighbor that he had "shot
me three or four niggers." Id. at 765.
      3
        The court of appeals deemed Coutee's appeal of the denial of post-conviction
relief abandoned. Id. at 766.
      4
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
                                          -2-
at 2-4, (W.D. Mo. June 3, 1998).5 We agree and deny the petition, finding no error of
law and overwhelming evidence of guilt.6

      JUDGMENT AFFIRMED.

      A true copy.

             Attest:

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




      5
       This court granted a certificate of appealability on two issues: (1) the
prosecutor's comments to the jury, and (2) the testimony of Coutee's neighbor, Christine
Bailey, allegedly portraying him as a racist.
      6
        Petitioner, in order to exhaust his remedies, is now required to petition for
discretionary review to the Supreme Court of Missouri before filing in federal district
court. O'Sullivan v. Boerckel, ___ U.S. ___, 119 S. Ct. 1728 (1999). However, at the
time petitioner filed his § 2254 petition in district court, this court held a petition for
discretionary review was not necessary. Dolny v. Erickson, 32 F.3d 381 (8th Cir.
1994), cert. denied, 513 U.S. 1111 (1995), abrogated by O'Sullivan, 119 S. Ct. 1728
(1999).
                                            -3-
