                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-1605
                                     ___________

Jahn Henri Parker,                        *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Missouri.
Michael Bowersox,                         *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: January 13, 1999

                                   Filed: August 10, 1999
                                    ___________

Before BOWMAN,1 Chief Judge, WOLLMAN,2 and MURPHY, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

        Jahn Henri Parker was convicted in Missouri state court for the murder of his ex-
girlfriend Elizabeth Loesch and was sentenced to death. Parker appeals from the
district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. §

      1
       The Honorable Pasco M. Bowman stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on April 23,
1999.
      2
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
2254. We affirm that portion of the district court’s order which denies relief on
Parker’s challenge to his conviction. We reverse that portion of the order which denies
relief on Parker’s challenge to the sentence, and we remand the case with directions to
issue an appropriate writ of habeas corpus.

                                          I.

       Parker and Loesch had a tumultuous relationship, which began in late 1987. On
March 30, 1990, Loesch reported to Boone County, Missouri, police that Parker had
assaulted her three days earlier. At the time, Parker was on probation for an unrelated
third-degree assault conviction. On May 3, Robert Aulgur, assistant prosecuting
attorney for Boone County, filed a new third-degree assault charge and a motion to
revoke Parker’s probation based on the March 27 incident.

       Parker, with the assistance of his attorney, Betty Wilson, reached a plea
agreement with Aulgur that covered both the probation violation and the new assault
charges. In a letter to Aulgur dated August 1, 1990, Wilson stated that under the plea
agreement Parker would admit to the March 27 assault and receive concurrent 90-day
sentences for the probation violation and new assault. According to Wilson, Parker’s
guilty plea at the probation violation hearing scheduled for August 16, 1990, would
dispose of the probation violation and new assault charges. Wilson forwarded a copy
of the plea agreement to Parker and informed him that Loesch was no longer a potential
witness in the proceedings.

       Sometime after midnight on August 16, the day of the hearing, Alva Lewis
dropped Parker off at Loesch’s house. Lewis testified that Parker had been drinking
and had obtained a small-caliber revolver. He also stated that he heard Parker say,
“I’m going to kill the bitch,” as he walked away from Lewis’s vehicle. Another
witness, Tom Beary, testified that he saw a man matching Parker’s description enter
the passenger side of Loesch’s vehicle at approximately 2:00 a.m. and saw the vehicle

                                          -2-
drive off shortly thereafter. Loesch was found in her car at 7:00 a.m. that day, dead as
a result of four gunshot wounds.

      At 9:00 a.m., before Boone County police learned of Parker’s involvement in
Loesch’s death, Parker appeared at the probation violation hearing. He admitted that
he violated probation by assaulting Loesch on March 27. Consistent with the plea
agreement, the court imposed a 90-day sentence. The same day, the county dismissed
the new assault charge.

      Later on August 16, investigators learned from Lisa Anglo, Parker’s girlfriend,
that Parker had told her that he tried to shoot Loesch but was unsure if he had
succeeded. In addition, Parker had left his clothes and boots in Anglo’s garage and
asked her to dispose of them. Investigators discovered the gun that fired the fatal shots
in one of Parker’s boots when they searched the garage.

       Parker was interrogated about the murder the next day. He admitted that he was
at least partially at fault for Loesch’s death. He also stated, “Well, you know those are
my prints on the gun . . . but you’re never going to know what happened in that car.”

       A jury convicted Parker of first-degree murder in February of 1992. Finding that
Parker murdered Loesch because she was a potential witness in the new assault case,
the jury imposed the death sentence. Parker’s direct appeal and petition for post-
conviction relief under Missouri Supreme Court Rule 29.15 were unsuccessful. See
State v. Parker, 886 S.W.2d 908 (Mo. 1994) (en banc). The district court denied his
federal habeas petition in December of 1997, and this appeal followed. Although
Parker was granted a certificate of appealability on seven issues, we find it necessary
to address only several of them.




                                          -3-
                                II. Guilt Phase Issues

                                   A. Interrogation

      Parker contends that the police violated his Sixth Amendment right to counsel
when they interrogated him about Loesch’s murder without his attorney present. He
argues that inculpatory statements he made during the interrogation should thus have
been suppressed. We disagree.

       Although Parker had invoked his right to counsel for the probation violation and
assault charges, the right to counsel had not attached with respect to investigation of
the murder because no charges had been filed. See Davis v. United States, 512 U.S.
452, 456 (1994) (describing when the right attaches). The Sixth Amendment right to
counsel is offense-specific. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). “It
cannot be invoked once for all future prosecutions, for it does not attach until a
prosecution is commenced . . . .” Id. Nor were the March 1990 and August 1990
charges so “inextricably intertwined” that Parker implicitly invoked his right to counsel
for the murder charge by invoking it for the probation violation and assault charges.
See Hellum v. Warden, United States Penitentiary–Leavenworth, 28 F.3d 903, 909 (8th
Cir. 1994) (recognizing that a narrow exception to the McNeil rule may apply to
prosecutions arising from the same events). Accordingly, no Sixth Amendment
violation occurred when the police interrogated Parker about Loesch’s murder, and thus
his inculpatory statements were properly admitted.

                        B. Ineffective Assistance of Counsel

       Parker argues that he received ineffective assistance of counsel at the guilt phase.
According to Parker, counsel failed to: (1) prepare for closing argument; (2) properly
examine the State’s witnesses; (3) present a theory of the defense; and (4) object to the
intoxication instruction.

                                           -4-
      Ineffective assistance of counsel claims present mixed questions of law and fact,
which we review de novo. See Parkus v. Bowersox, 157 F.3d 1136, 1138 (8th Cir.
1998), cert denied, 119 S.Ct. 2410 (1999). The district court’s factual findings,
however, are reviewed for clear error. Id. at 1138-39 (citing Laws v. Armontrout, 863
F.2d 1377, 1381 (8th Cir. 1988) (en banc)). Specific factual findings by state courts
are generally presumed correct. See Laws, 863 F.2d at 1381.

       Ineffective assistance is measured by the now familiar two-part standard of
Strickland v. Washington, 466 U.S. 668 (1984).

      First, the defendant must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel
      was not functioning as the “counsel” guaranteed the defendant by the
      Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

Id. at 687. A court “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)).

       First, Parker claims that counsel’s closing argument was “rambling and
incoherent.” As the Supreme Court has stated, however, the guarantee of effective
assistance of counsel is not intended to increase the quality of legal representation but
to “ensure that criminal defendants receive a fair trial.” Id. at 689. Although his
closing argument may not have been the most succinct or tightly structured, counsel
raised a number of points in Parker’s defense. As the Missouri Supreme Court found,
counsel challenged the credibility of State witnesses, argued that the State had not

                                          -5-
established deliberation on Parker’s part, and questioned the validity of Parker’s
inculpatory statements to the police. Accordingly, we cannot say that the closing
argument deprived Parker of a fair trial. See Sloan v. Delo, 54 F.3d 1371, 1384 (8th
Cir. 1995) (rejecting an ineffective assistance claim that was premised on counsel’s
“incoherent” closing argument).

       Second, Parker argues that counsel failed to properly cross-examine certain
witnesses. Because he failed to raise this claim with respect to witness Tom Beary in
his state petition for post-conviction relief, however, that part of the claim is
procedurally defaulted. With respect to witness Alva Lewis, the district court found
that counsel elicited testimony that Lewis had been drinking, called his credibility into
question through impeachment, and pointed out weaknesses in his story. We find no
error in these findings, and thus Parker is not entitled to relief on this claim.

      Third, Parker contends that counsel failed to present a “theory of the defense.”
Because it was not properly raised in state court, this claim is procedurally barred. In
any event, the contention is without merit, for there is no requirement that counsel
present a formal theory of the defense. Parker relies on cases in which counsel was
found ineffective for failing to present obvious defenses. See Hill v. Lockhart, 28 F.3d
832, 842 (8th Cir. 1994); Chambers v. Armontrout, 907 F.2d 825, 831 (8th Cir. 1990)
(en banc). Specifically, he asserts that counsel should have argued that he acted in the
heat of passion. Counsel had valid strategic reasons for not making this argument,
however. There was little evidence suggesting that Parker acted in the heat of passion.
Furthermore, such an argument would have opened the door for the introduction of
damaging evidence that Parker had previously stalked Loesch. Thus, it was reasonable
for counsel to focus on challenging the State’s proof of deliberation and the credibility
of the State’s witnesses.

       Finally, Parker contends that it was ineffective assistance for counsel not to
object to the following instruction on voluntary intoxication:

                                          -6-
      In determining the defendant’s guilt or innocence, you are instructed that
      an intoxicated condition from alcohol will not relieve a person of
      responsibility for his conduct.

Instruction No. 6, Appellant’s Appx. at 292. Parker claims that counsel should have
objected because the Missouri Supreme Court later determined that this instruction
improperly suggested to the jury that an intoxicated defendant could be convicted of
first-degree murder without regard to mental state. See State v. Erwin, 848 S.W.2d
476, 483 (Mo. 1993) (en banc). The court limited the holding in Erwin to subsequent
cases, however. It held that the instruction correctly stated the law. Id. In effect, then,
Parker argues that counsel erred by failing to anticipate a change in the law. We have
repeatedly held that such a failure does not constitute ineffective assistance. See Horne
v. Trickey, 895 F.2d 497, 500 (8th Cir. 1990); Johnson v. Armontrout, 923 F.2d 107,
108 (8th Cir. 1991); Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996).

       In sum, any deficiencies in counsel’s performance at the guilt phase did not rise
to the level of ineffective assistance as defined in Strickland.

                              III. Penalty Phase Issues

                        A. Ineffective Assistance of Counsel

       Under Missouri law, the jury must unanimously find at least one statutory
aggravating circumstance to impose the death penalty. See Sloan, 54 F.3d at 1385
(citing Mo. Rev. Stat. § 565.030.4); Six v. Delo, 94 F.3d 469, 475 (8th Cir. 1996).
Here, the State presented two statutory aggravating factors: (1) that Parker murdered
Loesch because she was a potential witness in the probation violation case; and (2) that
Parker murdered Loesch because she was a potential witness in the assault case. See
Instruction No. 15, Appellant’s Appx. at 293. The jury found the second aggravating
factor to exist, but not the first.


                                           -7-
       Parker contends that penalty-phase counsel3 rendered ineffective assistance by
failing to call attorney Wilson, who would have testified that she informed Parker well
before August 16, 1990, that Loesch was no longer a potential witness in the probation
violation and assault cases. The State responds that counsel did not call Wilson
because she could have revealed privileged information and because her testimony
would have been cumulative.

       We apply the same standard of attorney performance in both capital and
noncapital cases. See Pickens v. Lockhart, 714 F.2d 1455, 1460 n.4 (8th Cir. 1983).
Counsel must act with “the customary skills and diligence that a reasonably competent
attorney would exhibit under similar circumstances.” Starr v. Lockhart, 23 F.3d 1280,
1284 (8th Cir. 1994) (quoting Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir.
1985)). Thus, we must consider counsel’s conduct in the context of a capital
sentencing proceeding. See Starr, 23 F.3d at 1284-85; Pickens, 714 F.2d at 1460 n.4.
The primary duties of counsel at such a proceeding are to “neutralize the aggravating
circumstances advanced by the state” and “present mitigating evidence.” Starr, 23 F.3d
at 1285. It was therefore critical for Parker’s counsel to show that Parker did not
murder Loesch because she was a potential witness.

       To prove the two aggravating circumstances, the State offered testimony from
prosecuting attorney Aulgur that the probation violation and assault cases were pending
when Loesch was killed. On direct examination, Aulgur did not mention the existence
of the plea agreement. See Trial Tr. at 1503-07. He testified that both the probation
violation and assault cases were pending when Loesch was murdered. Further, he
stated that Parker appeared at the probation violation hearing on August 16, 1990,
confessed to his probation violation, and “admitted he had assaulted Beth Loesch as
charged back on March the 27th of 1990.” Id. at 1505-06. Aulgur testified that the



      3
          Parker had separate counsel for the guilt and penalty phases of the trial.

                                            -8-
court imposed a 90-day sentence for the probation violation, but did not state that he
(Aulgur) dismissed the new assault charge the same day based on Parker’s plea.

       On cross-examination, the whole of Aulgur’s testimony about the plea agreement
is contained in the following exchange:

      Q.     Mr. Aulgur, just so we’re clear, there was a plea negotiation
             between you and Mr. Parker’s attorney. And – is that right?
      A.     In which case?
      Q.     Regarding the new assault.
      A.     Yes.
      Q.     In exchange for a confession or admission of violating probation,
             the arrangements were that he was to go into 90 days in jail. True?
      A.     On the probation violation. And then he would plead guilty to the
             original assault, receive a 90-day jail sentence, be placed on two
             years supervised probation, with conditions of counseling, not to
             consume alcohol, and not to have any further contact with the
             victim.
      Q.     Okay. And on August 16th, that was the scheduled court date that
             Mr. Parker was to appear and confess his violation and commence
             his jail time; is that right?
      A.     That is correct.
      Q.     And in fact he appeared in court on the 16th, confessed his
             violation, and started this jail time at that point; is that right?
      A.     That is correct.

Trial Tr. at 1507-08.

       Notwithstanding the fact that she possessed abundant evidence that the plea at
the probation violation hearing would dispose of the assault charge, Parker’s penalty-
phase counsel did not introduce any other evidence of the plea agreement or of Parker’s
understanding of the plea agreement. On August 16, the day of Parker’s plea at the
probation violation hearing, Aulgur submitted a Notice of Nolle Prosequi in the assault
case. The same day, the court confirmed the dismissal of the assault case in a letter to

                                          -9-
Aulgur. Parker’s counsel received copies of these documents from attorney Wilson
before trial. See Tr. of 29.15 Hrg. at 38-44; Wilson Aff. Exs. G-H.

        Wilson testified at the Rule 29.15 hearing that she believed that the plea
agreement would resolve both the assault case and the pending revocation of probation.
Tr. of 29.15 Hrg. at 24. Wilson communicated this interpretation of the plea agreement
to Parker on August 1, 1990, more than two weeks before Loesch was murdered. She
testified that she told Parker that, in light of the plea agreement, there would be no need
for Beth Loesch or anyone else to testify. Id. at 21. Furthermore, she informed
Parker’s penalty-phase counsel of this communication before trial because she was
concerned about reports in the media that the State’s aggravating circumstances were
based on the theory that Parker had murdered Loesch because she was a potential
witness. Id. at 43-44, 143-46. Nonetheless, penalty-phase counsel did not call Wilson
or introduce any evidence concerning Parker’s belief that Loesch was not a potential
witness when the murder occurred.

       The critical question before the jury at the penalty phase was whether Parker was
motivated to murder Loesch because she was a potential witness against him. Central
to a determination of Parker’s motive was his understanding of the plea agreement.
Attorney Wilson’s testimony was critical in this regard because she was the only
witness who could testify about her interpretation of the plea agreement and her
communication of that interpretation to Parker. Accordingly, counsel’s failure to call
Wilson to testify regarding those matters constituted ineffective assistance. See
Chambers, 907 F.2d at 831-32 (holding that counsel’s decision not to call the only
witness whose testimony could rebut the prosecution’s theory of the case and establish
self-defense was not objectively reasonable); Driscoll v. Delo, 71 F.3d 701, 709 (8th
Cir. 1995) (finding ineffective assistance where counsel failed to expose an obvious and
material inconsistency in the prosecution’s case). When questioned at the Rule 29.15
hearing about her failure to call Wilson, Parker’s penalty-phase counsel acknowledged
that if Wilson could testify that Parker did not believe that Loesch was a potential

                                           -10-
witness at the time of the murder, there was no excuse for leaving that evidence out.
Tr. of 29.15 Hrg. at 164.

      Fear that Wilson would disclose privileged information or discuss prior bad acts
was not a valid reason for not calling her to testify. The State cites no particular
information that would have harmed Parker’s case, nor were Parker’s guilt-phase and
penalty-phase counsel able to point to any specific dangers that might have resulted
from calling Wilson. See id. at 117-18, 159. Any possible danger posed by calling
Wilson was far outweighed by the potential benefit of her testimony that Parker did not
believe that Loesch was a potential witness when he committed the murder. See
Chambers, 907 F.2d at 829-31 (holding that positive aspects of a potential witness’s
testimony outweighed negative aspects because negatives were already in evidence or
of de minimis effect); Kenley v. Armontrout, 937 F.2d 1298, 1309 (8th Cir. 1991)
(same).

        Nor would Wilson’s testimony have been merely cumulative. Aulgur could not
testify about Wilson’s interpretation of the plea agreement, nor could he testify about
her statement to Parker that Loesch was no longer a potential witness. Parker’s
penalty-phase counsel admitted as much at the Rule 29.15 hearing. See Tr. of 29.15
Hrg. at 162-63. We conclude, then, that counsel’s decision not to call Wilson
constituted representation that fell below an objective standard of reasonableness and
thus was ineffective within the meaning of the Sixth Amendment.

      The failure to call Wilson undermines our confidence in the outcome of the
sentencing proceeding. The State’s only aggravating circumstances were that Parker
murdered Loesch because she was a potential witness in two cases against him. The
jury heard testimony that Parker had pleaded guilty to the probation violation and
concluded that he did not murder Loesch because she was a potential witness in that
case. There is a reasonable probability that the jury would not have found that Parker
murdered Loesch because she was a potential witness in the assault case had it heard

                                         -11-
Wilson’s testimony that she had told Parker that in light of the plea agreement Loesch
would not be a witness against him at the August 16 hearing. Accordingly, Parker’s
death sentence must be set aside.

                            B. Other Penalty Phase Issues

       In light of our holding that he is entitled to habeas relief based upon his counsel’s
failure to call Wilson at the penalty phase, we will touch only briefly upon Parker’s
contention that his due process rights were violated when the court allowed Loesch’s
ex-husband to testify during the penalty phase that the family was “very concerned
what happens” at the trial. This testimony, argues Parker, amounted to a request that
the jury impose a death sentence.

       Although family members of the victim may not state “characterizations and
opinions about the crime, the defendant, and the appropriate sentence” at the penalty
phase, they may testify about the victim and the emotional impact of the victim’s death
on the family. Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991) (citing Booth v.
Maryland, 482 U.S. 496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989)).
In Booth, family members of the victims made comments such as “[no one] should be
able to do something like that and get away with it” and “[I don’t] feel that the people
who did this could ever be rehabilitated.” 482 U.S. at 508. The Supreme Court held
that such comments unconstitutionally directed the jury to draw certain conclusions
from the evidence. Id. In Payne, on the other hand, the Court found that a statement
that the victim’s son missed the victim was permissible testimony about the emotional
impact of the victim’s death on the family. See 501 U.S. at 826-27.

       On the one hand, the challenged testimony was not so outcome-specific as the
statements in Booth, which gave opinions about the defendant and suggested that the
jury impose the death sentence. On the other hand, however, the testimony did not so
directly relate to the emotional impact of the victim’s death on the family as did the

                                           -12-
statement in Payne. The statement could be interpreted to mean that the family wanted
the jury to impose the death sentence, that it did not want the jury to impose the death
sentence, or simply that, no matter what the outcome, the trial was a very important
event for the family. Whether prudential considerations would counsel against
introducing so ambiguous a statement upon retrial is of course a matter for the State to
determine.

                                    IV. Conclusion

       We affirm that portion of the district court’s order which denies Parker’s petition
for habeas corpus relief from his conviction. We reverse that portion of the district
court’s order which denies Parker’s petition for habeas relief from his sentence, and we
remand the case to the district court with instructions that the district court issue a writ
of habeas corpus releasing Parker from the sentence and ordering that the State of
Missouri either sentence Parker to life imprisonment without eligibility for probation
or parole or grant him a new penalty-phase trial.

       A true copy.

              Attest:

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




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