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

___________

Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

Mose Young was convicted and sentenced to death for the murder of three men

in a St. Louis pawn shop. After unsuccessful state appeals, he petitioned for a writ of

habeas corpus under 28 U.S.C. § 2254, alleging that numerous aspects of his trial
The Hon. George F. Gunn, Jr., late a United States District Judge for the

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Eastern District of Missouri.

The notes also indicate that there were seven white jurors and five black jurors. 2

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violated his constitutional rights. The District Court denied the application, 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 crossexamination, which, Young argues, improperly implied that he had committed prior

violent acts. And third, he claims he was denied due process by several allegedly

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 concerning 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 killing

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 discriminatory use of peremptory challenges.

Counsel’s trial notes indicate the prosecutor used all nine of his peremptory strikes

against black veniremen. Counsel did not object to this tactic, although he claimed he 2

was well aware of the state prosecutor’s practice of excluding black 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 and

resulted in a structural defect that tainted the entire trial.
The claim Wright’s attorney failed to preserve relied 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.

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In order to prevail on a claim of ineffective assistance of counsel, Young must

show that his attorney’s assistance “fell below an objective standard of reasonableness,”

and that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland v. Washington, 466

U.S. 668, 688, 694 (1984). We find it unnecessary to discuss the reasonableness of

counsel’s conduct because, in any event, Young cannot show he was prejudiced by this

oversight. As Strickland makes clear, “[i]f it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.” Strickland, 466 U.S. at 697. Young cannot satisfy the

prejudice requirement and has not attempted to do so. Instead, he urges this Court to

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 of

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 whose

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 ineffective

assistance of his trial counsel was the cause of the omission, and thus he had to satisfy

the two-part Strickland test. Like Young, Wright argued that requiring him to show

prejudice in the sense of a reasonable probability of a different outcome asked
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the impossible. We rejected Wright’s attempt to avoid the prejudice requirement of

Strickland. We explained that an error by counsel does not warrant setting aside the

judgment of a criminal proceeding on collateral attack if the error had no effect on the

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] has not shown that the individual jurors who tried him were not

impartial, and, as already noted, he has not even begun to show that the

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 Strickland Court used the term “prejudice.” The focus is on the

outcome of the individual trial. Is there a reasonable likelihood that it

would have been different? Here, I am persuaded that there is no such

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 the

proceeding would have been different, and his ineffective-assistance-of-counsel claim

must fail. 

II.

Young’s next argument relates to the prosecutor’s conduct during crossexamination. 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 had a slight limp while explaining Young’s version of his

hasty retreat 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 his

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
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followed, and the trial judge sustained the objection. The prosecutor then returned to

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 judge sustained the objection,

denied the request for a mistrial, and Young never answered the question. 

 Although the prosecutor admitted during sidebar that he was referring to “specific

prior bad acts,” the State now suggests that the jury most probably interpreted the

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

unanswered question is not “so egregious that [it] fatally infected the proceedings and

rendered [the] entire trial fundamentally unfair.” Moore v. Wyrick, 760 F.2d 884, 886

(8th Cir. 1985). The question 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 overwhelming, and the jury relied on multiple aggravating circumstances when

setting the penalty. 

III.

Young’s final argument concerns several statements the prosecutor made during

closing arguments at the penalty phase of the trial. In arguing that the evidence

supported finding the crime was committed with “depravity of mind,” an aggravating

circumstance, the prosecutor stated, “it’s disgusting and it’s as cold as anything I’ve ever

seen.” The prosecutor also stated, “if the death penalty is an appropriate punishment,

you tell me a situation where it’s more appropriate than here.” The
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defense did not object to either of these statements. The third allegedly improper remark

relates 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 penitentiary . . . [w]hat would

it be for then, folks, a pack of cigarettes, a stick of gum, a[n] extra fifty cents.” Counsel

objected to this line of argument and again moved for a mistrial, the objection was

overruled, and the motion was denied. Young failed to raise any of these issues in his

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), and we will do the same. Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.

1997).

The test for prosecutorial misconduct has two parts. First, the remarks must have

been improper, and second, the remarks must have been so prejudicial as to deprive the

defendant of a fair trial. United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985).

The first remark was clearly improper. It invited the jury to rely on the prosecutor’s

personal opinion about the relative coldness of this crime and compared the

circumstances of this crime to other crimes that were not in the record. Analyzing the

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 the sentencing phase

would have been different, taking into account all of the aggravating and mitigating

circumstances. Antwine v. Delo, 54 F.3d 1357, 1363 (8th Cir. 1995). As noted above,

the prosecutor made this statement as part of his argument that the crime involved

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 opinion that it was as cold

as anything he had ever seen. In addition to finding depravity of mind, the jury

designated four other aggravating
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circumstances for two of the murders and five others for the third. After taking all of the

aggravating and mitigating circumstances into account, we see no probability that the

sentence would have been any different. The error was harmless beyond a reasonable

doubt.

The second remark was the prosecutor’s statement that “if the death penalty is an

appropriate 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 would

certainly not rise to the level of a constitutional violation.

Finally, Young argues that it was improper for the prosecutor to comment on his

future dangerousness during the sentencing phase of trial. In support of this position,

Young cites to a case from the Seventh Circuit which held that the “government may not

attempt to obtain a conviction by 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

sentencing phase, and the Supreme Court has specifically approved capital-sentencing

procedures that allow the jury to consider the probability that the defendant would

commit criminal acts of violence that would constitute a continuing threat to society.

Jurek v. Texas, 428 U.S. 262, 274-76 (1976). Because we do not find this comment

improper, it is unnecessary to determine whether any prejudice resulted. The argument

did no more than invite the jury to consider that a life sentence might not be sufficient to

deter this defendant, who had killed three people, from committing murders in the future.

Juries are fully capable of properly weighing this kind of rhetoric.

Affirmed.
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A true copy.

Attest:

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