*The HONORABLE JAMES M. BURNS, United States

District Judge for the District of Oregon, sitting

by designation.

_____________

No. 95-2918EM

_____________

Andrew W. Six, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Paul K. Delo, *

*

Appellee. *

_____________

Submitted: April 8, 1996

 Filed: August 27, 1996

_____________

Before McMILLIAN and FAGG, Circuit Judges, and BURNS, District *

Judge.

_____________

FAGG, Circuit Judge.

On April 10, 1987, Andrew W. Six and his uncle, Donald Petary,

terrorized a family in Ottumwa, Iowa. Six and Petary went to the home of

Don and Stella Allen and their daughters, Christine, who was seventeen, and

Kathy, who was twelve. Both girls were special education students. Six

and Petary said they were interested in purchasing the family's truck,

which the family was selling to finance Don's open heart surgery. Stella

agreed to accompany Six and Petary on a test drive. Six drove the truck

onto a gravel road and stopped. While Six held Stella, Petary wrapped duct

tape around her hands. They then returned to the Allen home, where Don was

waiting outside. Holding butcher knives to the Allens' throats, Six and

Petary forced the couple back inside their home. 
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Six taped Don's hands and mouth, and took wallets from Stella and Don.

Petary fondled Kathy, and Six raped Christine, who was obviously pregnant.

At Six's direction, Petary took Kathy and Christine outside and put them

inside his car. Six tried to force Stella and Don into the truck at

knifepoint, but Don started to run away. Six then slashed Stella's throat,

inflicting serious injuries, and she fell to the ground. Seeing her

father's flight, Christine escaped from the car, but Kathy, who was trapped

next to Petary, could not. After Six jumped into the car, Six and Petary

sped off with Kathy, heading south. Three days later, Kathy Allen's body

was found in a ditch in Missouri. She had bled to death there after being

stabbed in the neck. 

At Six's state trial for Kathy's murder, Don, Stella, and Christine

Allen testified about the actions of Six and Petary on the evening Kathy

was kidnapped. Stella testified Six had slit her throat and Christine

testified Six had raped her. Six did not testify during the guilt or

penalty phases, but his attorneys suggested Six was under Petary's

influence and Petary had killed Kathy. During the penalty phase, seven

members of Six's family testified Six is a good person. Six's mother

testified Petary had abused both his own children and Six as a child. The

jury found Six guilty of first-degree murder, but could not decide whether

Six should be sentenced to death or life imprisonment. 

The court then undertook Six's sentencing under Mo. Rev. Stat.

§ 565.030.4 (1986) and found beyond a reasonable doubt the existence of

three statutory aggravating circumstances: Six murdered Kathy Allen to

avoid arrest, her murder was committed during a kidnapping, and she was

killed because of her status as a potential witness in her kidnapping. See

id. § 565.032.2(10)-(12). As an additional, nonstatutory aggravating

circumstance, the court found Six had raped Christine Allen. The court

also found the following mitigating circumstances existed: Six had no

significant criminal history, see id. § 565.032.3(1); he confessed to law
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enforcement officers; he was a good son, brother, and family member; and

he had been abused as a child. The court decided the mitigating

circumstances did not outweigh the aggravating circumstances, and the

aggravating circumstances were sufficient to warrant imposition of the

death penalty. 

Six appealed his conviction and sentence, and the denial of his

motion for postconviction relief under Missouri Supreme Court Rule 29.15.

The Missouri Supreme Court consolidated Six's appeals and affirmed. State

v. Six, 805 S.W.2d 159, 173 (Mo.) (en banc), cert. denied, 502 U.S. 871

(1991). Six filed a motion to recall the mandate and a state habeas

petition under Missouri Supreme Court Rule 91, and the Missouri Supreme

Court summarily denied the motions. Six then filed this federal habeas

petition and the district court denied relief. Six v. Delo, 885 F. Supp.

1265, 1286 (E.D. Mo. 1995). Six appeals. We affirm.

I. 

Six contends he was denied effective assistance of counsel at his

trial's penalty phase. To succeed on an ineffective assistance claim, Six

must show his attorneys' performance was deficient and the deficient

performance prejudiced him. Sidebottom v. Delo, 46 F.3d 744, 752 (8th

Cir.), cert. denied, 116 S. Ct. 144 (1995).

Six first challenges his trial attorneys' failure to obtain a

neuropsychological evaluation of Six and to present the results as

mitigating evidence during the penalty phase. This failure was not

constitutionally deficient because Six's trial attorneys conducted a

reasonable investigation of Six's mental status. Id. The attorneys

reviewed psychiatric evaluations that had been prepared for Six's earlier

federal trial for Kathy's kidnapping. The federal evaluations suggested

Six was under duress and had below average intelligence. The attorneys had

a psychiatrist, Dr. A.E. Daniel, perform a thorough examination of Six.

Dr. Daniel
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conducted a psychiatric interview of Six for about three hours and reviewed

documents provided by Six's attorneys, including a synopsis of the case and

another doctor's evaluation. Dr. Daniel evaluated both Six's competency

to stand trial and his mental status at the time of the offense. Dr.

Daniel's report stated Six had a history of a disorganized childhood,

hyperactivity, deafness, and depression. The report concluded Six suffered

from drug and alcohol abuse and had a personality disorder with antisocial

features. In Dr. Daniel's view, Six was competent to stand trial, was

using alcohol and drugs at the time of the offense, and was under duress

because of Petary's influence.

According to Six, Dr. Daniel's report alerted Six's attorneys to the

need for a full neuropsychological evaluation like the one Dr. Richard

Wetzel conducted after the trial. Dr. Wetzel concluded Six had mild brain

dysfunction that hampered his ability to control his attention and

behavior, and controlled substance abuse could worsen this dysfunction.

In Dr. Wetzel's opinion, if Six had been using drugs or alcohol heavily for

at least a week before the offense, Six had moderate neuropsychological

dysfunction when he committed the crime. Dr. Wetzel stated this

dysfunction could have affected Six's ability to premeditate. 

 

Counsel's decision not to further investigate Six's mental status was

not constitutionally deficient because the decision was reasonable from

counsel's perspective when the decision was made. Id. at 753-54; O'Neal

v. Delo, 44 F.3d 655, 660 (8th Cir.), cert. denied, 116 S. Ct. 129 (1995).

Dr. Daniel's report did not recommend any further examination and we cannot

say his findings would suggest to a competent lawyer that further

evaluation was necessary. See Sidebottom, 46 F.3d at 753-54; O'Neal, 44

F.3d at 660. Further, during the state postconviction hearing, one of

Six's attorneys testified Six's behavior and statements gave counsel no

reason to question Six's mental faculties. See O'Neal, 44 F.3d at 660.

In deciding not to seek further examination, Six's
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attorneys reasonably relied on Dr. Daniel's report and the lack of any

behavior by Six indicating an abnormal mental state. Sidebottom, 46 F.3d

at 753-54; O'Neal, 44 F.3d at 660. In sum, the attorneys' failure to

obtain a neuropsychological evaluation was not deficient performance.

Sidebottom, 46 F.3d at 753-54; O'Neal, 44 F.3d at 660. Thus, we need not

decide whether Six was prejudiced. O'Neal, 44 F.3d at 660 n.6.

Six next attacks his trial attorneys' failure to present other

mitigating evidence during the penalty phase. Six contends his attorneys

should have presented evidence that he was treated for hyperactivity

beginning in preschool, was a neglected child who grew up in a seriously

dysfunctional home monitored by social services agencies, and had a hearing

loss that was untreated for three years in elementary school.

Six's trial attorneys learned of this additional mitigating evidence

during the investigation, but decided the evidence was not significant

enough to be helpful. Although the additional evidence would have been

relevant during the penalty phase and had some mitigating value, Schneider

v. Delo, 85 F.3d 335, 340 (8th Cir. 1996), counsel's decision not to

present the evidence was reasonable. Sloan v. Delo, 54 F.3d 1371, 1384

(8th Cir. 1995) (reviewing the reasonableness of counsel's belief de novo),

cert. denied, 116 S. Ct. 728 (1996). Counsel testified his penalty-phase

strategy was to show Six was a human being whom others cared about, and to

present evidence of Six's positive character traits. Counsel decided not

to use Dr. Daniel as a witness to prevent the state from using testimony

from another psychiatrist to whom Six had made "quasi-confessions." The

additional mitigating evidence could have been presented in other ways, but

counsel reasonably believed the evidence was not significant enough to

build sympathy for Six because of the horrible facts of the case. 

Even if counsel's decision not to present the evidence was
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unreasonable, we cannot say the additional evidence probably would have

made a difference at sentencing. Schneider, 85 F.3d at 340-41 (defendant

not prejudiced by failure to present mitigating evidence of attention

deficit disorder, insomnia, and social history). It was apparent Six had

a hearing problem because counsel had Six remove and adjust his hearing aid

during the trial. Six's mother testified he had been abused as a child,

and the judge credited the testimony in finding the mitigating circumstance

that Six had been abused. We do not believe the additional evidence of

neglect and hyperactivity would have changed the sentencing equation.

Six also challenges trial counsel's failure to request jury

instructions on two statutory mitigating circumstances: Six acted under

extreme duress or the substantial domination of Petary, Mo. Rev. Stat.

§ 565.032.3(5), and Six was merely an accomplice and minor participant in

the murder, id. § 565.032.3(4). Six failed to raise this ineffective

assistance claim in the state courts, so the claim is procedurally

defaulted. Nave v. Delo, 62 F.3d 1024, 1030 (8th Cir. 1995), cert. denied,

116 S. Ct. 1837 (1996). To excuse his default, Six contends Missouri

inconsistently applied Missouri Supreme Court Rule 29.15(b), which at the

time of Six's state proceedings, required defendants to raise ineffective

assistance claims within ninety days from the trial transcript's filing.

See Williams v. Lockhart, 873 F.2d 1129, 1131-32 (8th Cir.), cert. denied,

493 U.S. 942 (1989). Six points out that in 1996 the Missouri Supreme

Court relaxed the time requirement in Rule 29.15(b). Six cites no examples

of inconsistent application of the earlier ninety-day rule, however. Thus,

the rule sufficiently bars habeas review. See Williams, 873 F.2d at 1132.

 

II.

Six argues the Missouri death penalty scheme requires a jury to

decide a defendant's eligibility for death by finding the existence of at

least one statutory aggravating circumstance before
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a judge can impose a death sentence. Six argues that because the jury was

not polled at his trial, we cannot tell whether the jury made the necessary

finding, and thus, the imposition of capital punishment by the court

instead of the jury violates his due process and equal protection rights.

Assuming Six is correct about the Missouri statute, the facts do not

support Six's argument. To deadlock on punishment, the jury must have

found at least one statutory aggravating circumstance existed. Missouri's

death penalty statute provides the trier must direct a sentence of life

imprisonment if the trier does not find at least one statutory aggravating

circumstance. Mo. Rev. Stat. § 565.030.4(1) (1986). The jury must impose

a sentence of life imprisonment if the jury does not unanimously agree the

same aggravating circumstance exists. State v. Griffin, 756 S.W.2d 475,

488 (Mo. 1988) (en banc), cert. denied, 490 U.S. 1113 (1989). The jury was

instructed to this effect, see inst. no. 16, and we must assume the jury

followed the instruction. Because the jury in this case did not impose a

life sentence, the jury must have unanimously found the existence of at

least one of the five submitted statutory aggravating circumstances, and

thus, the jury found Six was eligible for the death penalty. Griffin, 756

S.W.2d at 488. Contrary to Six's assertion, there is no "unauthorized

presumption of death eligibility" for defendants whose juries deadlock on

punishment, and thus, Six was not denied equal protection.

Besides, the Missouri death penalty scheme permits the judge to find

the necessary aggravating circumstance when a jury cannot decide on

punishment. Once the jury returned its verdict stating it was unable to

agree on punishment, the judge became the sentencer and it was the judge's

duty to find the facts and decide the sentence following the same procedure

in § 565.030.4(4) initially undertaken by the jury. State v. Richardson,

923 S.W.2d 301, 323-24 (Mo. 1996) (en banc). To the extent the judge may

have found aggravating circumstances the jury did not find, the Missouri
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death sentencing scheme permits it. As Six recognizes, there is no state

or federal constitutional right to have a jury make the findings. Moore

v. Clarke, 904 F.2d 1226, 1233 (8th Cir. 1990), cert. denied, 504 U.S. 930

(1992); Griffin, 756 S.W.2d at 487. The procedure followed in this case

is permitted under the Missouri statute. Thus, Six's due process rights

were not violated. Griffin, 756 S.W.2d at 488.

In another argument tied to Missouri's statute, Six contends trial

counsel was ineffective in failing to request a jury poll after the jury

returned the verdict form indicating the jury's inability to agree on

punishment. Six argues we can consider this claim even though it is

procedurally defaulted because our failure to consider the claim would

result in a fundamental miscarriage of justice. According to Six, the lack

of a jury poll means we cannot tell whether the jury found a statutory

aggravating circumstance existed, and thus, Six is not eligible for the

death penalty and is actually innocent of his death sentence. See Nave,

62 F.3d at 1033; Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.), cert.

denied, 115 S. Ct. 518 (1994); Sawyer v. Whitley, 112 S. Ct. 2514, 2523 &

n.15 (1992). As we just explained, however, the jury necessarily found Six

eligible for the death penalty, because to deadlock on punishment, the jury

must have found the existence of a statutory aggravating circumstance.

Griffin, 756 S.W.2d at 488 (jury need not submit aggravating circumstances

it has found to court in writing because jury deadlocked on punishment has

necessarily found at least one aggravating circumstance). In any event,

the judge found the existence of three statutory aggravating circumstances

making Six eligible for the death penalty, and the Missouri statute permits

the judge to make the necessary findings when the jury deadlocks on

punishment.

III.

Six next contends the mitigating circumstance instruction
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required the jury to find statutory mitigating circumstances unanimously,

in violation of his Eighth Amendment rights. Our earlier cases foreclose

this contention. Griffin v. Delo, 33 F.3d 895, 905-06 (8th Cir. 1994),

cert. denied, 115 S. Ct. 1981 (1995); Murray v. Delo, 34 F.3d 1367, 1381

(8th Cir. 1994), cert. denied, 115 S. Ct. 2567 (1995); Parkus v. Delo, 33

F.3d 933, 941-42 (8th Cir. 1994). 

IV.

Six next asserts his appellate attorney ineffectively represented him

by failing to raise arguments challenging three remarks by the prosecutor

during closing argument at the trial's penalty phase. Although trial

counsel did not object to the comments, Six asserts appellate counsel

should have challenged the comments for the first time on appeal. To

succeed on this ineffective assistance claim, Six must show "reasonable

professional performance [by appellate counsel] could not have omitted the

prosecutor's statements from review [for] plain error." Pollard, 28 F.3d

at 889; see Sidebottom, 46 F.3d at 759.

During his closing argument at the penalty phase, the prosecutor

said: 

You've watched [Six] during this week, ladies and gentlemen,

what remorse has he shown for the death of Kathy Allen? What

remorse has he shown for cutting the throat of Stella Allen?

What remorse has he shown for raping [Christine Allen]? What

remorse has he shown? And now . . . they have the guts to come

here and to ask you for mercy. . . . And you've already decided

. . . whether or not he's guilty of the death. Don't be misled

about who actually wielded the knife blow. I think we all

know probably in our hearts who did it, but you've already

determined criminal liability for that. And don't be

dissuaded, don't be dissuaded. What remorse has he shown? . .

. . Let's talk now, folks, about courage and let's talk about

cowardice. Because this man and his uncle are cowards . . . .

And he sits before you today, a rapist, a killer, a thief and

a coward--and a coward. An attorney speaks eloquently for him,

but it doesn't
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make him any less of a coward. . . . Have the courage, ladies

and gentlemen, the courage of your convictions to send this

message, that if you invade our homes and you rape our children

and rob our families and you steal our babies from our bosoms

and you take them and you kill them, that if you do those

things . . . it will cost you your life. 

We are not convinced the prosecutor's comments were plain error.

Sidebottom, 46 F.3d at 759. Six contends the prosecutor's remarks about

Six's failure to show remorse were comments on Six's failure to testify.

Unlike the situation in Miller v. Lockhart, 65 F.3d 676, 684 (8th Cir.

1995), the prosecutor here did not directly argue Six's failure to take the

stand and ask for mercy during the penalty phase showed Six did not care

about what he had done. Instead, the comments were indirect. A

prosecutor's indirect comments about a defendant's failure to testify

violate the Fifth Amendment privilege against self-incrimination if the

comments show the prosecutor intended to call attention to the defendant's

failure to testify, or if the jury would naturally take the comments as

highlighting the defendant's failure to testify. Parkus, 33 F.3d at 940-

41; Pollard, 28 F.3d at 890.

Because the comments about remorse were prefaced with a reference to

the jury's observance of Six during the trial, we cannot say the

prosecutor's comments about remorse were intended as anything more than

remarks on Six's general demeanor in the courtroom, or that the jury would

view the comments as anything more. See Gaskins v. McKellar, 916 F.2d 941,

951 (4th Cir. 1990) (prosecutor's comment that defendant had shown no

remorse was not improper comment on failure to testify), cert. denied, 500

U.S. 961 (1991). Contrary to Six's selective quotation, the prosecutor's

isolated statement that Six's attorney spoke eloquently for Six was not

tied to the prosecutor's remarks about remorse, but was made in the context

of a later discussion about cowardice. 

We reject Six's assertion that the prosecutor suggested he had
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special knowledge about the offense by stating everyone knew in their

hearts which man had committed the murder. See United States v. Lahey, 55

F.3d 1289, 1298-99 (7th Cir. 1995) (prosecutor's use of phrase "we know .

. ." did not suggest government knew of additional evidence). The

prosecutor did not imply he possessed undisclosed information or express

his personal opinion. Cf. Newlon v. Armontrout, 885 F.2d 1328, 1336 (8th

Cir. 1989) (prosecutor's statement of personal belief that defendant

deserved death penalty more than anyone else in ten years was improper),

cert. denied, 497 U.S. 1038 (1990). Similarly, the prosecutor did not make

a personal appeal to the jury's parental responsibilities to protect their

children from crime, but was speaking figuratively about society as a whole

and was asking the jury to send a message that anyone who rapes, robs,

kidnaps, and kills children will be sentenced to death. Cf. id. at 1336,

1342 (prosecutor's query, "If [the defendant] was going to harm your child,

would you kill him?" was improper personalized analogy to jurors' selfdefense of their own children).

Even if the comments were improper, the remarks do not violate due

process unless the remarks fatally infected the entire penalty phase and

rendered it fundamentally unfair. See Pollard, 28 F.3d at 890. Here, the

prosecutor's remarks were not egregious or pervasive enough to render the

result of the penalty phase unreliable. Parkus, 33 F.3d at 941; Pollard,

28 F.3d at 890-91. Thus, appellate counsel was not constitutionally

ineffective for failing to make plain error arguments based on the

comments. Pollard, 28 F.3d at 890.

 

V.

Six asserts his Fourteenth Amendment rights were violated because the

state court trial judge was biased. Because Six failed to raise this

assertion in state court, the claim is procedurally defaulted. Nave, 62

F.3d at 1030. As cause for his default, Six
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asserts the judge failed to disclose facts providing a basis to doubt

impartiality. Based on Six's examination of the state judge at the state

postconviction hearing, however, the district court found Six had some

knowledge of the bias claim's factual basis before the hearing, 885 F.

Supp. at 1271, so Six could have raised the claim in his state

postconviction motion. We agree with this assessment. Even if Six could

show cause, he could not show prejudice because his bias claim lacks merit.

See id. at 1271-72. Thus, Six is not entitled to an evidentiary hearing

to show cause and prejudice for the default. Keeney v. Tamayo-Reyes, 504

U.S. 1, 11 (1992). 

VI.

Six also contends his Fourteenth Amendment rights were violated

because the trial court did not submit instructions on second-degree felony

murder as a lesser-included offense of first-degree murder. We disagree.

The Constitution does not entitle a capital murder defendant to an

instruction on every lesser-included noncapital offense. Schad v. Arizona,

501 U.S. 624, 627 (1991). The court need only give the jury a supported

alternative to the all-or-nothing choice of capital conviction or

acquittal. Id. at 647; Driscoll v. Delo, 71 F.3d 701, 714-15 (8th Cir.

1995), pet. for cert. filed, 64 U.S.L.W. 3765 (May 1, 1996) (No. 95-1779).

Here, the jury was instructed on conventional second-degree murder, which

the evidence supported. See Schad, 501 U.S. at 648. Because the jury was

given the option of convicting Six of a lesser-included offense with

support in the evidence, the failure to instruct the jury on second-degree

felony murder did not violate Six's Fourteenth Amendment rights. Driscoll,

71 F.3d at 714-15.

VII.

Finally, Six contends his due process rights were violated because

the Missouri Supreme Court arbitrarily denied his state-
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given right to proportionality review of his death sentence. Mo. Rev.

Stat. § 565.035 (1986). Six explains that when the court reviewed Six's

sentence, the court database used for sentencing comparisons did not

include 189 cases in which life sentences were imposed. Id. § 565.035.6

(directing Missouri Supreme Court to compile database of all cases in which

sentences imposed were death or life imprisonment without the possibility

of parole). Six cites some of the omitted published cases and argues they

are more similar to Six's case than the four capital cases cited by the

Missouri Supreme Court in upholding Six's death sentence. 

We conclude Six was not arbitrarily denied his state-provided right

to proportionality review. Williams v. Delo, 82 F.3d 781, 784-85 (8th Cir.

1996); see Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994) (en banc),

cert. denied, 115 S. Ct. 1719 (1995). The Missouri Supreme Court reviewed

Six's death sentence and concluded the sentence was "not excessive or

disproportionate to the penalties imposed in similar cases, considering the

crime, the strength of the evidence and the defendant." State v. Six, 805

S.W.2d at 169; see Mo. Rev. Stat. § 565.035.3(3). The Constitution does

not require us to look behind that conclusion to consider the manner in

which the court conducted its review or whether the court misinterpreted

the Missouri statute. LaRette v. Delo, 44 F.3d 681, 688 (8th Cir.), cert.

denied, 116 S. Ct. 246 (1995); Williams, 82 F.3d at 785.

We affirm the denial of Six's federal habeas petition.

A true copy.

Attest:

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