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* [UNPUBLISHED]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
1Coutee 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).

2The record contains admissions to a cell mate and a neighbor that he had "shot

me three or four niggers." Id. at 765. 

3The court of appeals deemed Coutee's appeal of the denial of post-conviction

relief abandoned. Id. at 766.

4The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

-2-

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
5This 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. 

6Petitioner, 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-

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.