### The Honorable Donald J. Stohr, United States District Judge 1 

### for the Eastern District of Missouri. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 95-3864
Reginald L. Powell, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Michael S. Bowersox, * * Appellee. *

Submitted: November 18, 1996 Filed: May 1, 1997

Before McMILLIAN, Cir cuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Reginald Powell, a Missouri inmate c onvicted of two counts of firstdegree mur der and sentenced to death on both counts, appeals from th e distr ict court's denial of his petition under 28 U.S.C. § 2254. W e 1 affirm.

I. On November 14, 1986, Mr. Powell unexpectedly encountered Calvi n Courtney, his stepbrother. Upon recognizing Mr. Courtney,

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Mr. Pow ell said, "Oh, I didn't know who it was, because we were gettin g ready to rob you," and "Man, I have been around all day robbing people." Accompanying Mr. Courtney were brothers Freddie and Lee Miller, who earlie r that evening had refused to purchase liquor for Mr. Powell. An argument ensued, and Mr. Powell pushed the Millers to the ground and kicked each of them in the groin, chest, and face. Mr. Powell yanked down one of th e brothe rs' pants and undergarments and kicked him repeatedly in th e genit als. When Mr. Courtney attempted to stop the beating, Mr. Powel l respon ded, "My baby needs some Pampers" and resumed his pummeling

. Pleading for his life, Lee Miller said, "You can beat me all you want, but don't kill me."
Mr. Powell jumped repeatedly on the Millers' chests, breaking a ll but their top ribs. He t hen examined the Millers for valuable items, pulling dow n Lee Miller's pants while doing so. While the Millers were stil l alive, Mr. Powell thrust a knife three times into each one's abdomen and chest to a depth of five or six inches. They died from stab-induce d bleeding. Shortly thereafter, Mr. Powell commented to some companions tha t he had "stabbed" and "stuck" the Millers. "Don't bring no knife if yo u ain't goi ng to use it," he added. He had blood on his shoes and wa s carry ing the bloody knife. Later, in a tape-recorded statement to th e police, Mr. Powell confessed to the murders and exclaimed, "You know, we'l l say I had the last -- the last laugh."

A Missou ri jury convicted Mr. Powell on two counts of first-degre e murder. After the jury was unable to agree on a sentence, the trial court sentenced Mr. Powell to death on both counts and later denied his motion for a new trial. A s econd judge subsequently denied his motion for postconvic tion relief. The Missouri Supreme Court affirmed the conviction , death sentence, and

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denial of post-conviction relief. See State v. Powell , 798 S.W.2d 709 (Mo

. 1990) ( en banc ), cert. denied , 501 U.S. 1259 (1991). In Powell v

. Bower sox , 895 F. Supp. 1298 (E.D. Mo. 1995), the district court denie d Mr. Powel l's request for a hearing and denied all claims for relie f asserted in his petition for writ of habeas corpus. The district cour t later also denied Mr. Powell's motion to amend the judgment unde r Fed. R. Civ. P. 59(e). Mr. Powell appeals.

II. Mr. Powell claims first that his trial counsel violated hi s constitutional right to effective assistance of counsel in a number o f ways. He complains that in the trial's sentencing stage counsel did not inqui re whether he desired to testify, that in neither the guilt

determi nation stage nor the sentencing stage of the trial did counse l inform him that he could testify, that in neithe r stage did counsel advise himto testify, that in both stages counsel decided unilaterally that he would not testify, that in neither stage did counsel inform him that he ha d the unilateral right to decide whether he would testify, that in neither stage did counsel discuss with him what form his testimony might take, and that in n either stage did counsel discuss with him the possibl e "ramifications" of any testimony that he might offer. Since Mr. Powell di d not ass ert the last two of these claims at the district court level, w e will not address them. See , e.g. , Sutton v. Settle , 302 F.2d 286, 288 (8t h Cir. 1962) ( per curiam ), cert. denied , 372 U.S. 930 (1963).

A claim o f ineffective assistance of counsel involves two showings: First, the petitioner must demonstrate that his or her counsel' s
re presentation fell below an objective standard of reasonableness a s measured by prevailing professional norms of competence, and, second, he or she must establish a reasonable

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probability that but for counsel's unprofessional errors the outcome of th e trial wou ld have been more favorable. A failure to make either showin g makes further scrutin y unnecessary. See , e.g. , Strickland v. Washington , 466 U.S. 668, 687-88, 694, 697 (1984).
Our inqui ry focuses first on the trial's guilt-determination stage, where Mr. Powell argues that counsel should have advised him that he could testify, that counsel should have instructed him to testify, that counsel should not have decided unilaterally that he would not testify, and that counsel should have a dvised him that he could testify even if counsel did not want him to do so. Mr. Powell says that had he been properly advised, he would have taken the stand and would have dis cussed his PCP and alcohol usage and th e effects that these had on him. He believes that hi s testimon y would have aided his defense of diminished capacity. W e disagree.
The jury heard testimony from other witnesses concerning Mr. Po well's state of intoxication and the effect that intoxication could have on one who suffers from Mr. Powell's mental deficiencies. Trial counsel did not believe that Mr. Powell's testimony would add en ough favorable information to of fset the harm that his taking the stand would do to his defense o f diminished capacity. Trial counsel believed that Mr. Powell's competency had i mproved measurably since the murder, and she feared that he woul d appear far more competent on the stand than the expert witnesses said he was when he committed the murders.

Counsel's fears were not unfounded. The bulk of the trial testimony indicated that Mr. Powell's mental capacities ha d improved. His testimony could very well have damaged his defense in the manner that trial counsel feared. Further, had he

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testified, Mr. Powell would have been subject to cross-examination on all of the grisly details of the double murder, including the matters containe d in his taped confession. It is clear from these considerations that there is no reasonable probability that Mr. Powell's testimony would hav e pro duced a different result in his trial. He therefore has failed t o demonstrate that he w as prejudiced by his counsel's alleged shortcomings.

Re garding the penalty phase of his trial, Mr. Powell argues tha t counsel should have informed him that he could testify, that counsel shoul d ha ve inquired if he desired to testify, that counsel should hav e affirm atively advised him to testify, that counsel should not hav e uni laterally decided that he would not testify, and that counsel shoul d have told him that he had the right to decide unilaterally to testify. Ha d he been given such advice, Mr. Powell maintains, he would have taken the stand and expressed remorse, pleaded for the jury to spare his life, spoke n about the circumstanc es surrounding the murders, discussed his childhood, and generally humanized himself before the jury. As in the guilt-determination stage, however, had he testified h e would have faced a cross-examination in which he most likely would hav e been forced to discus s every aspect of the double murder, leaving a fresh imprint of the horrific acts that he committed o n the minds of the jurors. He also would likely have had to confront his own taped confession, where he stated, as we have already noted, "You know, we'll say I had the last -

- the last laugh." Further, during the state post-conviction relief hearing , Mr. Powell's counsel exerted more effort than one would hope necessary to extract a statement of remorse from Mr. Powell. A similar difficulty at the penalty stage would have been extremely harm ful to Mr. Powell. He has thus f ailed to demonstrate that trial counsel's actions resulted i n prejudice to him.

### -6- Given the concerns discussed above and the fact that Mr. Powell' s motion for state post-conviction relief containe d approximately 100 points and subpoints, along with his charges of ineffective assistance of counsel , we believe that had Mr. Powell's counsel acted as he now maintains sh e should have and had he testified, he would now be asserting that counsel

was ineffective for advising him to take the stand. See , e.g. , Payne v. United States , 78 F.3d 343, 346 (8th Cir. 1996); see also Nazarenus v
. United States , 69 F.3d 1391, 1397 (8th Cir. 1995) (petitioner asserted tha t his lawyer was ineffective for advising him to t estify, thereby subjecting him to harmful cross-examination). For the reas ons discussed above, then, we conclude that counsel rendered effective assistance at trial.

III. Mr. Powell also draws our attention to an instruction that the trial court declined to sub mit to the jury. He asserts that during the trial's penalty phase the tri al court should have instructed the jury to consider in mitigation whether "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired." The instruction's absence , Mr. Powell argues, precluded the jury from considering relevant evidence and consequently violated rights guaranteed to him by the Eighth an d Fourteenth Amendments.

Those amendments require that the sentencer in a capital case b e allowed to weigh in mitigation any feature of a defendant's character or record and any circumstances of the offense that the defendant presents in support of a sentence less than death. See , e.g. , Eddings v. Oklahoma , 45 5 U.S. 10 4, 110, 112 (1982); see also Johnson v. Texas, 509 U.S. 350, 36 1 (1993). According to

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Mr. Powell, the evidence showed him to be borderline mentally retarded, an d demonst rated that he had consumed large amounts of alcohol before th e attack, had a diminished ability "coolly [to] reflect" or deliberate on hi s actions, and suffered substantial impairment to his judgment, reasoning, and decision-making skills. Two of the instructions that the trial court gave in this case stated that in determining whether any mitigating circumstance existed the jury could "consider all of the evidence" and "any ci rcumstances which you find fromthe evidence in mitigation of punishment." Two other instructions,
mo reover, indicated to the jury that it had to "consider all th e circumstances in deci ding whether to assess and declare the punishment at death." In Battle v. Delo , 19 F.3d 1547, 1558-60 (8th Cir. 1994), aff'd , 64 F.3d 347 (8th Cir. 1995), cert. denied , 116 S. Ct. 1881 (1996), we deal t wit h an argument similar to the one that Mr. Powell advances here

. Although in Battle th e trial court instructed the jury only that it could "consid er all of the evidence," coupled with a general instruction t o consider the circumstances of the offense, our court nevertheless conclude d that the instructions passed constitutional muster because they included "generalized language allowing consideration of evidence not specifically enumerated." Id. at 1560. The instructions in this case go considerably beyond those approved in Battle in explaining to the jury that it is not restricted with regard to the kinds of matters that it may consider i n mitigation.
Evidence relevant to Mr. Powell's mental state was presented ov er the course of several days. The instructions author ized the jury to weigh all of the evidence presented during that time, including the evidence tha t Mr. Powell complains was precluded from consideration. Although the charg e did not include the instruction

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at issue, the trial c ourt did direct the jury to consider the totality of the evidence. We con clude that the charge did not preclude the jury from conside ring any mitigatory evidence and therefore that it wa s constitutional.

IV. Finally, Mr. Powell objects to the presence of the word "unanim ously" in two jury instructi ons, both of which stated in relevant part: "If you unani mously

find that one or more mitigating circumstances exist[s ] sufficient to outweigh the aggravating circumstances found by you to exist , then ... you must return a verdict fixing defendant's punishment a t imprisonment for life" (emphasis supplied). Mr. Powell asserts that, as in Mills v. Maryland , 486 U.S. 367, 371, 380, 384 (1988), there exists a substantial probability that a reasonable juror would think that he or she could not weigh a particular mitigating circumstance against aggravating factor s unless the jurors first unanimously agreed that that particula r circumstance existed.

The Eighth and Fourteenth Amendments, as we have already said , require that in capital cases an individual juror be allowed to consider in mitigation any aspect of the defendant's character or record and an y circums tances of the offense offered by the defendant for purposes o f mitigation. Because of the finality of an execu ted death sentence and the unavailability of the modifications to that sent ence that are available in noncapital sentences, a juror must be permitted to consider every availabl e detail in mitigation. See , e.g. , Eddings , 455 U.S. at 110, 112-16. Mr. Powell argues that, as in Mills , 486 U.S. at 371, 380, 384, there exists the p ossibility that a single juror could have blocked the weighing o f mitigating evidence in violation of the Constitution.

### -9- The Mills decision, it is true, turns on the presence of the wor d "unanimously" in a verdict form, and, in the particular circumstances of that case, the Supreme Court found that there existed a substantia l probability that reasonable jurors would think that they could not weigh
a mitigating circumstance against aggravating factors unless the entir e jury fir st agreed on the existence of that circumstance. Id. But th e instructions in this case do not exhibit such an infirmity. The challenge d ins tructions deal with balancing mitigating circumstances agains t aggra vating factors, not with determining what mitigating circumstance s exist. These instructions are, in fact, the same in every relevant respec t
as the instructions that our court upheld in Battle , 19 F.3d at 1561-62, and in Griffin v. Delo , 33 F.3d 895, 905-06 (8th Cir. 1994), cert. denied , 115 S. Ct. 1981 (1995). We concluded in those cases that the petitioner had failed to demonstrate a substantial probability that a reasonable juro r could have interpreted the word "unanimously" in such a way as to bestow upon each member of the jury an unconstitutional veto power over th e consideration of mitigating evidence. We reach the same conclusion in thi s
case.

V. For the r easons discussed, we affirm the district court's judgment.

A true copy.

Attest:

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