## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3775EM

_____________ Mose Young, * * Appellant, * * On Appeal from the United v. * States District Court * for the Eastern District * of Missouri. Michael Bowersox, Superintendent, * Potosi Correctional Center, * * Appellee. *

___________ Submitted: September 21, 1998 Filed: December 4, 1998

___________ Befo re RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ RICHARD S. ARNOLD, Circuit Judge. Mose Young was convicted and sente nced to death for the murder of three men in a St. Louis pawn sh op. After unsuccessful state appeals, he petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that numerous aspects of his trialThe H on. George F. Gunn, Jr., late a United States District Judge for th e 1 Eastern District of Missouri. The notes also indicate that there were seven white jurors and five black jurors. 2 -2- violated his constitutional rights. The District Court denied the appl ication, and Young 1 now appeals on three grounds. First, he argues that he received ineffective assistance of counsel because his attorney failed to object to the prosecutor’s use of peremptory challenges to exclude black people from the jury. See Batson v. Kentucky , 476 U.S. 79 (1986). Second, he argues the trial judge should have granted a mistrial because of
an unanswered question by the prosecutor directed to the defendant on cross

examination, which, Young argues, improperly implied that he had committed prio r violent acts. And third, he claims he was denied due process by several allegedl y improper remarks made by the prosecutor during closing arguments in the penalty phase of the trial. We find no merit to Young’s arguments and affirm.

The facts co ncerning the crime itself are not relevant to the issues on appeal , except to point out that Young, who is black, was charged with shooting and killin g three men on February 8, 1983.

I. Young’s first argument relates to the failure of his trial attorney to object to what he contends was the prosecutor’s racially discrimina tory use of peremptory challenges. Counsel’ s trial notes indicate the prosecutor used all nine of his peremptory strike s against black veniremen. Counsel did not obj ect to this tactic, although he claimed he 2 was well aware of the state prosecutor’s practice of excluding blac k people from juries, had objected to this practice in the past, and had intended to do so in this case. Young claims that this oversight deprived him of the effective assistance of counsel an d resulted in a structural defect that tainted the entire trial.The claim Wright’s attorney failed to preserve relie d on Swain v. Alabama , 380 3 U.S. 202 (1965). The reasoning of our Wright opinion would apply with at least equal force to a Batson claim. -3- In order to prevail on a claim of ineffective assistance of counsel, Young mus t show that his attorney’s assistance “fell below an objective standard of reasonableness,” and tha t “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedin g would have been different.” Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). We find it unnecessary to discuss the reasonableness o f counsel’s conduct because, in any event, Young cannot show he was prejudiced by this oversight. As Stricklandmakes clear, “[i]f it is easier to dispose of an ineffectivenes s claim on the ground of lack of sufficient prejudice, which we expe ct will often be so, that
course sh ould be followed.” Strickland , 466 U.S. at 697. Young cannot satisfy th e prejudice re quirement and has not attempted to do so. Instead, he urges this Court t o view his counsel’s failure to lodge the Batson objection as a “structural defect” which is presumptively prejudicial. According to Young, a Batson error is a structural defect which renders the entire trial unreliable, and it necessarily follows that prejudice should be presumed. Otherwise, Young argues, he is forced into the impossible position o f showing how the outcome of the trial would have been different in the absence of a structural defect. We cannot accept this position. This case is controlled by Wright v. Nix , 928 F.2d 270 (8th Cir. 1991). In Wright , we were also confronted with a defendant whos e attorney had failed to object to the prosecutor ’s use of peremptory challenges to exclude non-whites from the jury. Because the defendant Wright had failed to raise this issue 3 properly, he was required to show both cause and prejudice for his omission in order to attack his state conviction in a federal court. Wright argued that the ineffectiv e assistance of his trial counsel was the cause of the omission, and thus he had to satisfy the two- part Stricklandtest. Like Young, Wright argued that requiring him to sho w prejudice in the sense of a reasonable probability of a different outcome asked-4-

the impossible. We rejected Wright’s attempt to avoid the prejudice requirement o f Stricklan d

. We explained that an error by counsel does not warrant setting aside th e judgm ent of a criminal proceeding on collateral attack if the error had no effect on th e judgment. Wright , 928 F.2d at 273 (citing Strickland , 466 U.S. at 691). A passage from the concurring opinion in Wright is relevant here: [Wright] h as not shown that the individual jurors who tried him were no t impartial , and, as already noted, he has not even begun to show that th e presence of the black juror[s] in question on the jury that tried him would have affected the outcome at all. It is in the sense of outcome, I submit, that the Str icklandCourt used the term “prejudice.” The focus is on th e outcom e of the individual trial. Is there a reasonable likelihood that i t woul dhave been different? Here, I am persuaded that there is no suc h likelihood, and I therefore agree that this judgment should be affirmed.

928 F.2d at 274. Young has not shown a reasonable probability that the results of th e proceed ing would have been different, and his ineffective-assistance-of-counsel clai m must fail.

II. Young’s next argument relates to the prosecutor’s conduct during cross

examination. The prosecutor began questioning Young regarding the origin of an alleged disability which defense counsel mentioned in opening arguments. Defense counsel had referred to the fact that Young h ad a slight limp while explaining Young’s version of his hasty retre at from the crime scene. In response to the question about the disability , Young volunteered that he had also been shot in the back, and then explained that hi s limp was the result of an old football injury. The prosecutor followed up with a question about the gunshot wound, and defense counsel objected. A sidebar-5-

follo wed, and the trial judge sustained the objection. The prosecutor then returned t o cross-examination, and the following exchange ensued:
Q: “Mr. Young, how many people have you shot?” A: “Have I shot?” Q: “Yeah, how many.”

Defense counsel quickly objected and requested a mistrial, arguing that the prosecutor was attempting to introduce evidence of other crimes. The j udge sustained the objection, denied the request for a mistrial, and Young never answered the question. Although the prosecutor admitted during sidebar that h e was referring to “specific priorba d acts,” the State now suggests that the jury most probably interpreted th e question to refer to how many people Young shot in this case. We will assume the jury’s interpretation of the question was consistent with the prosecutor’s purpose. Even so, the
unanswer ed question is not “so egregious that [it] fatally infected the proceedings an d rendered[the] entire trial fundamentally unfair.” Moore v. Wyrick , 760 F.2d 884, 886 (8th Cir. 1985). The questi on did not refer to any specific past acts or indicate what the circumstances surrounding those acts might be. Moreover, the evidence of Young’s guilt
was ove rwhelming, and the jury relied on multiple aggravating circumstances whe n setting the penalty.

III. Young’s final argument concerns several statements the prosecutor made during cl osing arguments at the penalty phase of the trial. In arguing that the evidenc e suppor tedfinding the crime was committed with “depravity of mind,” an aggravatin g circumstance, the prosecutor stated, “it’s disgusting and i t’s as cold as anything I’ve ever seen.” T he prosecutor also stated, “if the death penalty is an appropriate punishment , you tell me a situation where it’s more appropriate than here.” The-6-

defense did not object to either of these statements. The third allegedly improper remark relate s to the prosecutor’s attempt to imply that if Young did not receive the death penalty, he might take the life of a fellow inmate. The prosecutor suggested , “why should he hesitate to take a life of somebody he doesn’t like in the p enitentiary . . . [w]hat would it be for then, folks, a pack of c igarettes, a stick of gum, a[n] extra fifty cents.” Counsel obj ected to this line of argument and again moved for a mistrial, the objection wa s overruled, and the motion was denied. Young failed to raise any of these issues in hi s motion for a new trial . The Missouri Supreme Court, therefore, reviewed the allegedly improper comments for plain error, State v. Young , 701 S.W.2d 429, 435 (Mo. 1985) (en banc), an d we will do the same. Hornbuckle v. Groose , 106 F.3d 253, 257 (8th Cir

. 1997). The test for prosecutorial miscon duct has two parts. First, the remarks must have been improper, and se cond, the remarks must have been so prejudicial as to deprive the defendant of a fair trial. United State s v. Hernandez , 779 F.2d 456, 458 (8th Cir. 1985). The first rem ark was clearly improper. It invited the jury to rely on the prosecutor’ s per sonal opinion about the relative coldness of this crime and compared th e circ umstances of this crime to other crimes that were not in the record. Analyzing th e prejudicial effect of these remarks requires us to consider a number of factors: (1) the type of prejudice that arose from the remark; (2) whether defense counsel did anything in his argument to minimize the prejudice; (3) whether the jury was properly instructed; and (4) whether there is a reasonable probability that the outcome of th e sentencing phase would have been different, taking into account all of the aggravating and mitigatin g circumstances. Antw ine v. Delo , 54 F.3d 1357, 1363 (8th Cir. 1995). As noted above, the pro secutor made this statement as part of his argument that the crime involve d depravity of mind and was outrageously or wantonly vile, horrible, or inhuman. There was overwhelming evidence from which the jury could have found the presence of this aggravating circumstance aside from the prosecutor’s personal op inion that it was as cold
as anything he had ever seen. In addition to finding depravity of mind, the jury designated four other aggravating-7-

circumstances for two of the murders and five others for the third. After taking all of the agg ravating and mitigating circumstances into account, we see no probability that th e sentence would have been any different. The error was harmless beyond a reasonable doubt. The second remark was the prose cutor’s statement that “if the death penalty is an appropri ate punishment, you tell me a situation where it’s more appropriate than here.” We do not find this type of rhetorical statement improper. Even if it were, it woul d certainly not rise to the level of a constitutional violation.

Fina lly, Young argues that it was improper for the prosecutor to comment on his future da ngerousness during the sentencing phase of trial. In support of this position , Young cites to a case from the Seventh Circui t which held that the “government may not attempt to obtain a c onvictionby appealing to jurors to prevent future crimes by finding present guilt.” United States v. Cunningham , 54 F.3d 295, 300 (7th Cir. 1995) (emphasis supplied). This is not the case here. The prosecutor’s comments were made during the
sen tencing phase, and the Supreme Court has specifically approved capital-sentencin g proced ures that allow the jury to consider the probability that the defendant woul d
comm it criminal acts of violence that would constitute a continuing threat to society

. Jur ek v. Texas , 428 U.S. 262, 274-76 (1976). Because we do not find this commen t improper, it is unnecessary to determine whether any prejudice resulted. The argument did no more than invite the jury toconsider that a life sentence might not be sufficient to deter this defendant, who had killed three people, f rom committing murders in the future. Juries are fully capable of properly weighing this kind of rhetoric.

Affirmed.-8-

A true copy.

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