The Ho norable Pasco M. Bowman became Chief Judge of the United State s * Court of Appeals for the Eighth Circuit on April 18, 1998. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2100WM

_____________ James E. Rodden, *
* Appellant, *

* Appeal from the United States
v. * District Court for the Western
* District of Missouri. Paul Delo; William Webster, *
* Appellees. *

_____________ Submitted: March 11, 1998

Filed: May 4, 1998

_____________ Before McMILLIAN, FAGG, Circuit Judges, and BOWMAN, Chief Judge. *

_____________ FAGG, Circuit Judge.

James E. Rodden appeals the district court’s denial of his habeas petitio n attacking his convict

ion and sentence for the capital murder of Terry Trunnel. See 28 U.S.C. § 2254. We affirm.
Around 11:00 p.m. one night in December 1983, Rodden offered acquaintance Terry Trunnel a ride home from a bar. On the way, they stopped by Rodden’s-2-

apartment to smoke some ma rijuana. Rodden’s roommate, Joseph Arnold, was there. Rodden’s former girlfrien d called about purchasing some furniture from Rodden, who

was moving to California with Arnold the next day. When Rodden demanded to see her, she refused, but Rodden went to her apartment anyway. She woul d not answer her door and called the police. When Rodden returned to his apartment at 2:00 a.m., he saw Arnold and Trunnel “making love.” According to Rodden, they were in Rodden’s bed. Rodd en claims that although he heard no disturbance, he later saw blood on the floor, questioned Arnold, and Arnold came at him with a bloody knife. Rodden says

a struggle ensued, and Rodden stabbed Arnold in self-defense. As Rodden tells it , Arnold had already stabbed Trunnel in Rodden’s bedroom. After killing Arnold , Rodden spread lamp oil around the apartment and on Trunnel’s body and set th e apartment on fire, to “make it all go away.” Taking a bloody knife with him, Rodden fled north in Arnold’s car around 6:00 a.m. He was bleeding from deep c uts in his right hand, whic h could have resulted from his hand slipping forward onto a knife blade as h e stabbed someone. Rodden later passed out from blood loss and crashed Arnold’s car into a house.

Amaintenance man who entered the apartment around 8:00 a.m to install new cabinets discovered the bloody bodies of Arnold and Trunnel and a smoldering fire

. Arnold had been stabbed eight times in the face, head, chest, and back. He lay in a po ol of his own blood on the floor of his bedroom. Trunnel had been stabbed eleven times in the chest, back, arm, and leg. Her faced was bruised and her arm was broken. Cord s were tied around her left wrist and right ankle. Her body was blistered an d char red in spots from being burned. Contrary to Rodden’s story, blood evidenc e showed she had been killed in Arnold’s bedroom and then dragged into Rodden’ s bedroom. Her blood was on the knife Rodden carried in fleeing the scene.

Missour i brought separate charges against Rodden for the capital murders o f Trunnel and Arnold. See Mo. Rev. Stat. § 565.00 1 (1978) (repealed 1984). The State first pro secuted Rodden for Arnold’s murder. A jury convicted Rodden, and he was-3-

sentenced to life imprisonment without the possibility of parole for fifty years. Se e State v . Rodden , 713 S.W.2d 279 (Mo. Ct. App. 1986). Defended by the sam e attorney, Rodden was later tried for and convicted of murdering Trunnel. This time, Rodden recei ved the death penalty. The Missouri Supreme Court affirmed Rodden’s conviction and sentence f

or murdering Trunnel, see State v. Rodden , 728 S.W.2d 212 (Mo. 1987), and affirmed the d enial of postconviction relief, see Rodden v. State , 795 S.W.2 d 393 (Mo. 1990). The United States Supreme Court denied certiorari. Se e Rodden v. M issouri , 499 U.S. 970 (1991). Rodden then filed this federal petition for a writ of habeas corpus, and the district court denied Rodden’s petition.

In his appeal, Rodden first contends his death sentence for killing Trunne l violates doub le jeopardy because after hearing “substantially the same evidence,” the jury in the Arnold murder trial sentenced Rodden to life imprisonment. Rodden asserts collateral estoppel prevents Missouri from relitigating the issue of capital punishment for the same set o f murders that an earlier sentencing jury considered. Rodden relies

on Bullington v. Missouri , 451 U.S. 430, 446 (1981) (dou ble jeopardy prevents second sentencing hearing after retrial for same murder), and Ashe v. Swenson , 397 U.S. 436, 446 (1970) (based on collateral estoppel theory, double jeopardy precludes trial fo r robbing se cond victim of single robbery incident after acquittal for robbing anothe r victim of same incident). Rodden’s reliance is misplaced.
The Double Jeopardy Clause protects against mult iple punishments for the same offense, se e Jones v. Thomas , 491 U.S. 376, 381 (1989), but does not prevent a state from selecting independent penalties for separate crimes, see Kokoraleis v. Gilmore , 131 F.3d 692, 695 (7th Cir. 1997). “Ea ch additional crime creates a fresh exposure to punis hment, which may be cumulative--indeed, must be cumulative if there is to b e deterrence for extra offenses.” Id. Thus, a serial killer may be sentenced to death for killing someone aft

er being sentenced to life imprisonment for killing someone else in

a separate incident. See id. Similarly, a killer who murders two people at the sam e time may be tried separately for the two distinct murders and sentenced separately for-4-

each murder. See Therrien v. Vose , 782 F.2d 1, 5 (1st Cir. 1986) ; Miller v. Turner , 658 F.2d 348, 350-51 (5t

h Cir. 1981); see also Ciucci v. Illinois , 356 U.S. 571 (1958) (per curiam) (when a killer murders several people in the same incident, a state ma y separately prosecute the killer for the murder of each victim). We conclude Rodde n
was not put in jeopardy twice for the same offense. The jury in the first trial selected the punishment for Rodden’s murder of Arnold, and t he jury in the second trial selected the p unishment for Rodden’s murder of Trunnel. The murders were two distinc t offenses that carried separate penalties under Missouri law.

Rodden contends his attorney ineffectively represented him on direct appea l because the attorney f

ailed to raise plain error challenges to the constitutionality of the prosecutor’s statements during voir dire and closing argument in the penalty phase. To succeed on an ineffective assistance claim, Rodden must show his attorney’ s perf ormance was deficient and the deficiency prejudiced him. See Strickland v

. Washington , 466 U.S. 668, 687 (1984). Rodden must show no reasonable , professi onal attorney could have omitted the plain error claims from appellate review,

see Six v. Delo , 94 F.3d 469, 476 (8th Cir. 1996), cert. denied , 117 S. Ct. 2418 (1997), and there is a reasonable probability the result on appeal would have been different if the attorney had raised the plain error claims, see Reese v. Delo , 94 F.3d 1177, 1185 (8th Cir. 1996), cert. denied , 117 S. Ct. 2421 (1997). Counsel’s failure to attack th e pr osecutor’s comments as plain error on appeal was not ineffective assistance o f

couns el because, as discussed below, Rodden’s constitutional challenges to th e comments fail on the merits. See Six , 94 F.3d at 477.

Rodd en asserts his appellate attorney should have raised a claim that th e pro secutor

inaccurately described the sentencing procedure and impermissibl y minimized the jury’s sense of responsibility for imposin g the death sentence in violation of the Eighth Amendment. See Caldwell v. Mississippi , 472 U.S. 320, 328-29 (1985) (holding Eighth Amendmen t prohibits imposition of death sentence by a sentencer that has been misled to believe the responsibility for deciding the appropriateness of the-5-

death sentence rests elsewhere). In supp ort of his assertion, Rodden points to some of the pros ecutor’s remarks during the death qualification stage of voir dire and th e prosecutor’s closing argument during the penalty phase.
Although Caldwell was decided before Rodden’s conviction became final o n appeal, the State c ontends application of Caldwell , which involved remarks during the penalty ph ase, to remarks during voir dire is a new rule that should not be applie d retroactively on collateral review. See Teague v. Lane , 489 U.S. 288, 310 (1989)

. Because the State did not raise the Teague issue in the district court, we need no t consider it. See Bannister v. Delo , 100 F.3d 610, 622-23 (8th Cir. 1996), cert. denied , 117 S. Ct. 2526 (1997). Nevertheless, we reject the State’s assertion that application of Caldwell to voir dire remarks is a new rule for Teague purposes. In evaluating a Caldwell claim, courts cons ider the entire trial scene, including jury selection, the guilt phase, the penalty phase, and the sentencing hearing, examining both the court’ s instructions and the attorneys’ remarks. See Davis v. Singletary , 119 F.3d 1471, 1482- 85 (11th Cir. 1997), petition for cert. filed , No. 97-8452 (U.S. Jan. 27, 1998); Sawyer v. Bu tler , 881 F.2d 1273, 1286 (5th Cir. 1989) (en banc); Harich v. Dugger , 844 F.2d 1464, 1474, 1476 (1 1th Cir. 1988); see also Roberts v. Bowersox , No. 96-3789, 1998 WL 86559, at *2-3 (8th Cir. Mar. 3, 1998) ; Driscoll v. Delo , 71 F.3d 701, 711 n.8 (8th Cir. 1995), cert. denied , 117 S. Ct. 273 (1996). Although remarks during the guil t phase of the trial are less likely to h ave an effect on sentencing than remarks during the penalty phase, see Darden v. Wainwright , 47 7 U.S. 168, 183 n.15 (1986), it is possible that comments about sentencing during voir dire could mislead the jury into believing the responsibilityfor imposing a death sentence rested elsewhere. We thus turn to the prosecutor’s remarks in this case.
During voir dire, the prosecutor asked potential jurors whether they understood that they only recommended a sentence to the judge. If the jury recommended death, the judge could impose a sentence of either life imprisonment or death, but if the jury recommended a life sentence, the judge could not impose a death sentence. The-6-

prosecutor also said the judge has veto power over a jury’s death recommendation and is in effect a thirteenth juror. During closing argument in the penalty phase, th e prose cutor

said a jury recommendation of the death penalty would send a message , whether or not the judge actually sentenced Rodden to death.
The prosecutor’s remarks did not misstate Missouri law or mis lead the jury about the signif icance of its role. See Roberts , 1998 WL 86559, at *3. Unlike the jury i n Driscoll , 7 1 F.3d at 711, Rodden’s jury was not told its decision didn’t matter. Se e Roberts , 1998 WL 86559, at *3. We are satisfied the jury understood the seriousness of its sentencing role . In his penalty-phase closing argument, defense counsel referred to the prosecutor’s argument that the jury merely recomm ended a sentence to the judge, then eloquently argued that each of the j urors would be responsible for Rodden’s death and that it was their decision, not “a decision of the judge or a decision of the Missouri Supreme Court or . . . anybody else.” The court rei nforced this point when it instructed the jury, “It is your duty and yours alone to decide upon the punishment,” “whether [a death sentence] is to be your fina l decision rests with you,” the lawyers’ arguments are not evidence, and “under the law it is your primary duty to fix punishment.” We thus conclude Rodden’s Caldwell claim is unavailing.

Rodden also contends his appellate attorney should have claimed the State’ s pena lty-phase closing argument violated his right to due process. See id. Imprope r argu ment violates due process when the argument is so egregious that it renders th e entire trial fundamentally unfair. See Darden , 477 U.S. at 181. To decide whethe r improper argument violates due process, we consider the type of prejudice that arose from the argument, what defense counsel did to minimize the prejudice, whet her the jury received proper instructions, and whether there is a r easonable probability of a different sentencing decision absent the improper argument. See Miller v. Lockhart , 6 5 F.3d 676, 683 (8th Cir. 1995).-7-

Rodden challenges the prosecutor’s penalty-phase argument that the jury shoul d recommend a death sentence so Rodd en would not get Trunnel’s murder “free,” and that the jury merely recommends a sentence to the judge, who is ultimately responsible fo r sentenci ng Rodden to death. Rodden also complains of references to the Bible, war , Harry Truman, quic kness of death in the gas chamber, and the unlikelihood that Rodden would actually be executed. Specifically, the prosecutor argued:
The judgment and sentence of the court and the jury in [th e trial for killing Arnold] was for life in prison without probation or parole for fifty years.

. . . Now, if

James Rodden killed two people and he got fifty years i n prison without parole for killing one person, does he get the murder of the second person free? Another fifty years without parole means nothing. . . . Now, defense attorneys say, they’ll say, “Well, if you re commend that he die he may wind up in the gas chamber and he may languish there for as long as twenty or thirty minutes.” L adies and gentlemen, that’s glitter. The ultimate de cision on whether or not James Rodden will have to face his res ponsibility is in the hands of the judge. If you return a verdic t
recom mending a death sentence, and it is important that at least at some point in his life or some fraction, if he nev er has to be executed in his life, years away, if he never does have to face it, the fact that he had to liv e under i t for even between now and thirty days from now when he’ s sentenced, he deserves that if he’s n ever executed, if he’s never executed he deser ves to sit down there with those people on death row. . . . Now, if [ Rodden] gets fifty years in prison with no probation and parole fo r killing Joe Bob Arnold, my question to you is should he get the secon d
one f ree? Should he not be punished for the murder of Terry Trunnel ? For to return a verdict strapping the judge to, f orcing him to consider only fifty years without parole, is no punishment whatsoever. . . . If a sentence,
or at least a recommendation from this jury, saves one innocent life . .

. a recommendation of the death penalty by you, whether the judge actually sentences him to death or not, sen ds a message. . . . I had a friend, a very good friend, who died in Viet Nam so that you . . . could be free from fear and violence. And I know some of you may have had friends who died in other wars. And if they died honorabl y so you could be free from fear, why is it so wrong that somebody like this should die dishonorably for the-8-

same re ason? . . . [Y]ou’ve heard of the Bible story of the Goo d Samaritan. We all know it. The Good Samaritan is a story of a ma n who’s brutally mugged and murdered and left on the side of the road to die. And along come a number of people who help this man . . . . Bu t what the story doesn’t tell you about is what kind of person mugged and raped and left that person on the side of the road to die. James Rodden is that type of person. . . . Now, in closing, ladies and gentlemen, . . . this is not an easy decision. But, I ask you, when you go ba ck and you weigh, if he got fifty years for killing one person, if we give him fifty years fo r kill ing another one and don’t let the judge even consider you r reco mmendation of the death penalty, what punishment is there fo r murdering that girl, for murdering the second person? . . . [The Bibl e says,] “Blessed are the merc iful for they shall receive mercy.” It doesn’t say, “Bles sed are the wicked and the brutal and the mean and cruel fo r they s hall receive mercy.” And if even God didn’t give mercy for that , why sh ould you? . . . Please, don’t let that American feeling o f forgiveness [sic], just like Harry Truman, you’re a public servant. Th e buck stops right here.
(Trial Trans. at 740-51.) Contrary to Rodden’s assertion, the prosecutor did not say Rodden would probably never be executed or that death by lethal gas would b e instantaneous. We see nothing wrong wit h the prosecutor’s allusion to Harry Truman, which t he prosecutor used to emphasize the jury’s grave responsibility. Th e prosecuto r’s biblical references--that Rodden was like the person who attacked th e victim helped by the Good Samaritan, and that Rodden didn’t deserve mercy because he was cruel rather than merciful--emphasized Rodden’s individual character, se e Antwine v. Delo , 54 F.3d 1357, 1364 (8th Cir . 1995), rather than invoked the wrath of God, see Bus sard v. Lockhart , 32 F.3d 322, 324 (8th Cir. 1994). In context, th e prosecutor’s statements about the second murder being free urged the jury to impose ad ditional punishment for the additional crime. And in commenting that another jury had convicted Rodden of killing Arnold, the p rosecutor did not suggest the outcome of the Arnold m

urder trial should control the jury’s decision in the Trunnel murder case. Rather, the prosecutor merely pointed out that Rodden was a multiple killer. The jury-9-

could properly consider Rodden’s earlier crimes in deciding whether to sentence him to death

. See Wise v. Bowersox , No. 97-1139, 1998 WL 67135, at *6 (8th Cir. Feb. 20, 1998).

Even if the prosecutor’s remarks were improper, defense counsel’s penalty

phase closing argument minimized any prejudice. As we said earlier, Rodden’ s attorney countered the prosecutor’s comments about the jury only recommending a sentence to the judge. As for the prosecutor’s argument about the second murder being “free ,” defense counsel argued the State prosecuted the Arnold and Trunnel murde r cases separately to get two cracks at the death p enalty. In addition, Rodden’s attorney pointed out Rodden would be seventy-four when he could be paroled for killin g Arnold, so if the jury wanted to punish Rodden for Trunnel’s murder, it could “ give him another fifty years.” The court also proper ly instructed the jury. Under the circumstances, we cannot say there is a reasonable prob ability the jury would have chosen a life sentence absent the prosecutor’s argument. Because the prosecutor’s closing argument did not violate due process , the failure of Rodden’s attorney to raise the due process claim as plain error on appeal is not ineffective assistance of counsel. See Six , 94 F.3d at 477.

Rodden ne xt claims his trial attorney was ineffective because he failed t o inv estigate and present mitigating evidence during the penalty phase. As potentia l miti gating evidence, Rodden points just to his family’s testimony. Rodden’s tria l attorney interviewed Rodden’s parents before the Arnold mur der trial and decided only his m other should testify. Her brief testimony, that Rodden was twenty-four and had “emotional problems from time-to-time,” covers less than one page of the transcript. At the state postconviction hearing following the Trunnel trial, she blamed Rodden’s problems on the school system and the police department. Rodden’s father testified Rodden was “overactive,” and Rodden’s brothers te stified they had close relationships with Rodden and participated in Cub Scouts together. Rodden’s trial attorney testified he believed the substance of the family’s testimony was not particularly good, an d when the penalty phase of the Trunnel murder trial end ed at about 10:30 p.m., he made-10-

a strategic decision to submit the case to the jury that night rather than presen t marginally f

avorable family testimony the next day, in the hope the jury would be too tire d to argue about the death penalty in the early morning hours and would impose a life se ntence instead. The Missouri courts found the attorney’s decision not to cal l Rodden’ s family members as witnesses was a matter of trial strategy, and there wa s “no clear evidence that the testimony of [Rodden’s] relatives would have bee n beneficial.” 795 S.W.2d at 397. The decision not to call family members as witnesses in the penalty phas e is a strategic one that we will not second-guess in hindsight. See Fre twell v. Norris , 133 F.3d 621, 627 (8th Cir. 1998). Rodden must overcome a str ong presumption that the strategy was reasonable. See id. We conclude defens e
cou nsel’s strategy was not unreasonable, and it is not reasonably probable the jur y would have imposed a life sentence if Rodden’s family had testified at the penalt y phase, see Strickland , 466 U.S. at 694.

Rodden also asserts he received ineffective assistance of trial counsel because his attorney d id not call Angel Duffy, a fifteen-year-old girl, as a witness in the trial’s guilt phase. At the state postconviction hearing, Duffy testified she was with Arnold at his apartment from abou t 6:00 p.m. to 10:00 p.m. on the night he was killed. Duffy said Arnold had been drinking and acting violently around 8:00 p.m. and had broken a coffee table arou nd 9:00 p.m., but he had calmed down by the time she left at 10:00 p.m., before Rodden and Trunnel arrived. Trial counsel explained he did not call Duffy

as a witness because he believed her testimony would not really help Rodden’s case and she contradicted part of Rodden’s testimony. We believe her testimony tha t Arnold had acted v iolently about nine hours before the murders but then settled down would not have been especially helpful, and her testimony about Arnold breaking the coffee table around 9:00 p.m. was inconsistent with Rodden’s statement that Arnol d broke the table later in Rodden’s presence. We decline to second-guess counsel’ s strategic deci sion not to call Duffy. See Dodd v. Nix , 48 F.3d 1071, 1075 (8th Cir

. 1995) . Given the overwhelming circumstantial evidence against Rodden, we cannot say there is a reasonable likelihood the jury would have acquitted Rodden of capital-11-

murder o r sentenced him to life if Duffy’s testimony had been admitted in the trial’ s guilt phase. See Strickland , 466 U.S. at 694.

Last, R odden contends his Fifth Amendment rights were violated when th e prosecutor

used Rodden’s testimony from the Arnold murder trial as evidence in th e State’ s case-in-chief in the Trunnel murder trial. Rodden contends his waiver of hi s Fifth Amendment rights in th e Arnold murder trial did not waive his Fifth Amendment rights in the Trunnel murder trial. In the s tate courts and federal district court, Rodden rai sed his Fifth Amendment claim only in the context of ineffective assistance of trial counsel, so we consider the claim only in that context here. See Sweet v. Delo , 125 F.3 d 1144, 1149 (8th Cir. 1997), cert. denied , 118 S. Ct. 1197 (1998). We conclude Rodde n suffered no prejudice from the testimony’s admission because there wa s
overw helming evidence against him. See Strickland , 466 U.S. at 694. Further , Rodden’s testimony from the Arnold murder trial presented Rodden’s defense tha t Arn old had killed Trunnel, without subjecting Rodden to fresh cross-examination

. Thu s, it is not surprising that Rodden’s attorney said he had no objection to th e testimony’s admission at the Trunnel murder trial.
Having co nsidered all of Rodden’s arguments, we affirm the district court’ s denial of Rodden’s habeas petition.

A true copy.

Attest:

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