United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-4118EM

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Eric D. Clemmons, *

*

Appellant, *

* On Appeal from the United

v. * States District Court

* for the Eastern District

* of Missouri.

Paul K. Delo, *

*

*

Appellee. *

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Submitted: January 13, 1999

Filed: May 21, 1999 

___________

Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and BRIGHT, Circuit Judges.

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RICHARD S. ARNOLD, Circuit Judge.

A jury convicted Eric Clemmons of capital murder and first-degree assault. The

Circuit Court of the City of St. Louis sentenced Clemmons to life imprisonment, with

eligibility for parole in fifty years, for the murder conviction, and a concurrent sentence

of ten years for the assault conviction. The convictions were affirmed by the Missouri

Court of Appeals. State v. Clemmons, 682 S.W.2d 843 (Mo. App. 1984). Pursuant

to Missouri Supreme Court Rule 29.15, Clemmons then sought post-conviction relief.

His motion for post-conviction relief was denied by the Circuit Court. The Missouri
1The Hon. John F. Nangle, United States District Judge for the Eastern District

of Missouri.

2The Hon. Terry I. Adelman, United States Magistrate Judge for the Eastern

District of Missouri.

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Court of Appeals again affirmed. Clemmons v. State, 795 S.W.2d 414 (Mo. App.

1990), cert. denied, 500 U.S. 907 (1991). Clemmons then filed a 28 U.S.C. § 2254

petition for habeas corpus relief. The District Court1 denied the petition, and

Clemmons now appeals.

Petitioner raised a number of issues in his original habeas petition. The

magistrate judge’s2 report and recommendation held that some of the claims were

procedurally barred because of Clemmons’s failure to raise them at the appropriate

stages of the Missouri state-court proceedings. The magistrate judge recommended

denying the remaining claims on their merits. After Clemmons objected to the

magistrate judge’s report, the magistrate judge reconsidered some of the issues raised

in the petition. Prior to the District Court’s ruling, but after the magistrate judge’s

second report and recommendation, Clemmons filed a motion to amend his habeas

petition, seeking to add an additional claim. The District Court denied both the habeas

petition, following the magistrate judge’s recommendations, and the motion to amend.

Clemmons raises five issues in his appeal, abandoning some of the issues brought

before the District Court. We affirm.

I.

In the early morning hours of August 14, 1982, Clemmons and some friends

were standing on a street corner in St. Louis when they heard Clemmons’s brother,

Stanley Barnes, yell from up the street that someone was trying to rob him. Clemmons

and his friends approached Barnes and found him swinging a pipe at Lindsey

Washington. On their way up the street to reach Barnes, Clemmons and his friends
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passed Todd Weems running in the opposite direction. When Clemmons reached

Barnes, he pulled him off Washington and began hitting Washington himself. During

his trial, Clemmons testified that Barnes then told him that Weems had been with

Washington and that Weems had robbed Barnes as well. Clemmons then chased

Weems. Clemmons testified that Weems swung a board at him, and that Clemmons

then found a pipe on the ground, which he swung at Weems in self-defense. Clemmons

stated that he did not have the pipe when he first approached Weems. Testimony from

the prosecution’s witnesses – the friends who had been with Clemmons on the street

corner – indicated that Barnes also attacked Weems, although the testimony differed

as to who reached Weems first, and who hit him first.

Weems died after the attack. Washington survived. Weems suffered bruises and

abrasions on the left side of his face; abrasions on the bridge of his nose, above his

right eye, and on his mouth; and lacerations on his ear. Weems also suffered blows to

the back of his head. The medical examiner, Dr. Case, testified at Clemmons’s trial

that the cause of death was a closed-head injury.

II.

Clemmons’s first claim is that he received ineffective assistance of counsel

because his trial counsel failed to elicit Weems’s exact cause of death from the medical

examiner. The District Court denied this argument – claim VIII in the District Court’s

opinion – on its merits. The standard for claims of ineffective assistance of counsel is

well established. See Strickland v. Washington, 466 U.S. 668 (1984). A petitioner

must show that counsel’s performance “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. The petitioner must also show that there

was a reasonable probability of a different outcome if counsel had performed properly.

Id. at 687. 
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Clemmons’s argument focuses on the difference in testimony provided by the

medical examiner at Clemmons’s trial and at Stanley Barnes’s trial. During

Clemmons’s trial, Dr. Case testified that some of the marks on Weems’s face were

probably the result of being struck with a linear instrument, such as a pipe (Trial Tr.

289-90; Index to Exhibits vi.) In addition to the injuries Weems suffered on his face,

he was also struck on the head. According to Dr. Case’s testimony, the blows to

Weems’s head were likely the fatal blows (Trial Tr. 295-96.) When asked by the

prosecution whether the injuries to Weems’s head “could . . . have been consistent

with an object such as a pipe that caused the injuries” on Weems’s face, Dr. Case

responded “Yes” (Trial Tr. 309.) Clemmons’s attorney did not question Dr. Case

about this testimony. When questioned about the blows to Weems’s head during

Barnes’s trial, Dr. Case stated her opinion that “the blows to the head, to the scalp area

were not made by the same linear instrument that caused the injuries” to Weems’s face

(Barnes Trial Tr. 44.) She also said that the three blows to Weems’s face would not,

by themselves, have been lethal.

Clemmons argues that Dr. Case’s testimony differed at the two trials, and that

Clemmons’s trial counsel should have questioned Dr. Case further about the cause of

the blows to the head. Clemmons must show a reasonable probability that this

evidence would change the outcome of the trial. Clemmons has failed to do this. In

the first place, we do not know what Dr. Case would have said if Clemmons's counsel

had pressed her on the matter. She might have repeated with even greater force that

the fatal blows were "consistent with . . . a pipe." The fact that Dr. Case (arguably)

testified differently at the later Barnes trial may mean only that she had had a chance

to reflect and had somewhat modified her opinion. When questioned repeatedly about

the subject, witnesses will sometimes give answers with different emphases, and do so

entirely innocently. In the second place, Dr. Case's testimony at the later trial was not

necessarily inconsistent with what she had said at Clemmons's trial. When she testified

at Barnes's trial, she did not entirely rule out a pipe or similar object as the instrument

that inflicted the injuries that caused death (Barnes Trial Tr. 39.) Finally, the jury
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could still have convicted Clemmons, on an accomplice theory, even if it thought

someone else struck the fatal blows. On the whole, our confidence in the outcome of

the trial is not undermined. Clemmons has not borne the burden of showing prejudice,

even if counsel's performance fell below an acceptable level.

III.

Clemmons’s second claim is essentially a replay of his first one. He argues that

the State wrongfully withheld from him Dr. Case's actual opinion – as shown by her

testimony at the subsequent trial of Stanley Barnes – that the fatal blows were probably

not struck by the pipe that caused the injuries to the victim's face. We cannot agree

with the characterization of this claim as one of withholding material exculpatory

evidence. There is no showing that the State knew, in advance of the Barnes trial,

exactly what Dr. Case's testimony at that trial was going to be. In our view, it is much

more likely that the expert's testimony, as is often the case, simply came out in a

slightly different way on the two occasions.

It is certainly true that the prosecution has a duty to disclose evidence favorable

to a defendant. See Kyles v. Whitley, 514 U.S. 419, 433 (1995). However, even if

there is a withholding of exculpatory evidence, constitutional error occurs only "if there

is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different." United States v. Bagley, 473 U.S.

667, 682 (1985), quoted with approval in Kyles, supra, 514 U.S. at 433-34. The

Bagley materiality standard is the same as the standard for Strickland prejudice, and

we have already explained, in part II of this opinion, why we believe Clemmons has not

met this standard. 
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IV.

Clemmons’s third claim is that the trial court erred in failing to give a proper selfdefense instruction to the jury. Federal habeas relief is not available simply because

of a faulty jury instruction. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). For

a petitioner to obtain relief based on a faulty jury instruction, the instruction must “so

infect[] the entire trial that the resulting conviction violates due process.” Cupp v.

Naughton, 414 U.S. 141, 147 (1973).

Clemmons is entitled to a self-defense instruction if there is evidence to support

his theory. See United States v. Solem, 646 F.2d 322, 328 (8th Cir. 1980). A selfdefense instruction was given to the jury, based on the Missouri model jury

instructions, but it did not contain the paragraph from the model instructions addressing

the lawful use of deadly force. Instead, the jury instruction was based on the section

of the model instructions to be used when there is no evidence supporting the lawful

use of deadly force by the defendant. See MAI-CR 2d 2.41.1(2)(2) (1979). The

problem, Clemmons argues, is that the instruction did not leave the jury room to acquit

him if it found that he acted reasonably in using deadly force. Assuming for the sake

of argument that Clemmons is correct, this is no more than an error of state law. This

is not a case where the defense of self-defense was withheld completely from the jury.

The argument, rather, is that the contours of the defense, under Missouri law, were not

explained properly. We do not think that this sort of claim qualifies for habeas relief,

nor do we believe, on the present record, that the absence of a correct (again assuming

the validity of Clemmons's point) self-defense instruction rendered this trial

fundamentally unfair.

V.

Clemmons’s fourth claim is that his right to confront the witnesses against him

was violated when the trial court admitted Lindsey Washington’s medical reports into
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evidence without requiring the prosecution to show that the treating physician was

unavailable. (This claim, even if valid, appears to call in question only the conviction

on Count II, the assault against Mr. Washington.) The District Court ruled that this

claim was procedurally barred. Clemmons initially raised this claim in his Rule 29.15

motion for post-conviction relief. The Missouri Court of Appeals noted that allegations

of trial error cannot be reviewed in post-conviction relief proceedings, and that

Clemmons should have raised this argument in his direct appeal. See Clemmons v.

State, 795 S.W.2d 414, 417 (Mo. App. 1990). Clemmons’s trial counsel did object to

the admission of the medical records during the trial, and the issue could have been

raised in Clemmons’s direct appeal. Id.

Ineffectiveness of direct-appeal counsel can constitute cause for purposes of

avoiding this procedural bar. This argument itself needs to have been raised properly

in the state courts, and Clemmons asserts that it was raised in the motion to recall the

mandate. He appears to be correct about this point, but he still has to show "actual

prejudice resulting from the claimed constitutional violation," Stanley v. Jones, 973

F.2d 680, 682 (8th Cir. 1992), in order to avoid the procedural bar. We do not believe

that such prejudice has been shown. It seems to us reasonably probable that

Clemmons's point would have been rejected on its merits even if direct-appeal counsel

had properly presented it. The medical records in question were admitted under the

business-records exception to the hearsay rule. Brief for Appellant 36-37. This is an

exception in its own right, and does not require that any witness be shown to have been

unavailable. See Ohio v. Roberts, 448 U.S. 56, 66 & n.8 (1980) (specifically endorsing

the business-records exception).

VI.

Clemmons’s final claim is that the District Court erred in denying his motion for

leave to amend his habeas petition. Clemmons filed a motion with the District Court

to amend his habeas petition after the magistrate judge made his second report and
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recommendation. Clemmons’s amended petition included a claim that the capitalmurder instruction given to the jury was defective. 

The rule governing habeas petitions allows amendments as provided in the

applicable rules of civil procedure. See 28 U.S.C. § 2242. Federal Rule of Civil

Procedure 15 provides that leave to amend “shall be freely given when justice so

requires.” Fed. R. Civ. P. 15. The decision to grant or deny a motion to amend is

within the discretion of the District Court. See Foman v. Davis, 371 U.S. 178 (1962).

 As the District Court observed, Clemmons had had plenty of opportunity to assert this

claim earlier. He waited until after the magistrate judge's second report and

recommendation. The case had already been pending for some time. We see no abuse

of discretion in the District Court's unwillingness to allow the injection of a new issue

at this late stage.

In addition, we agree with the District Court that the new claim, even if leave to

assert it had been granted, would not have succeeded on the merits. Clemmons argues

that the jury instruction on the capital-murder count used in his case did not require a

finding of cool deliberation, which is an essential element of capital murder. We

disagree. Under the instruction, the jury had to find either that defendant took the life

of Todd Weems and reflected upon the matter coolly and fully before doing so, or that

the defendant "aided or encouraged other persons in causing the death of Todd Weems

and reflected upon this matter coolly and fully . . .." We see no error in this instruction.

In State v. Bell, 854 S.W.2d 612, 614 (Mo. App. 1993), the instruction was differently

worded and would have allowed the jury to find Bell guilty of capital murder without

finding cool deliberation on his part. That is not true here.

For all of these reasons, the judgment is affirmed.
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BRIGHT, Circuit Judge, concurring.

This case presents some troubling questions. In my view, the trial court may

have deprived Clemmons of an essential element of his defense by failing to instruct

the jury on the lawful use of deadly force in self-defense. Missouri law permits the use

of deadly force in self-defense if the accused faces a reasonably apparent danger of

suffering serious bodily injury. E.g. State v. Sprake, 637 S.W.2d 724, 726 (Mo. Ct.

App. 1982). Clemmons testified that he picked up the pipe after Weems attacked him

with a wooden board. This testimony provided sufficient evidence of a danger of

serious bodily injury to Clemmons to support a specific self-defense instruction on

Clemmons' use of deadly force. Nevertheless, as observed by Judge Arnold, this sort

of error does not justify habeas corpus relief in federal courts. 

I also remain concerned by the contradictions between the medical examiner's

testimony in Clemmons' trial and the same examiner's testimony in Barnes' trial. In

each trial, the examiner gave the impression that the defendant struck the fatal blows.

In Clemmons' trial, the examiner testified that a metal pipe could have struck the blows

to the back of the head that caused the fatal head injury. At Barnes' trial, she testified

that a metal pipe could not have struck these blows, giving the reason that such blows

from a metal pipe would have fractured the skull.

Nevertheless, this court lacks the power to grant Petitioner relief due to the

restrictions placed on federal habeas corpus review of state court convictions.

Consequently, I concur in Judge Arnold's opinion.

I concur with reluctance, however. The conviction for capital murder and

consequent life sentence (imprisonment for fifty years without possibility of parole) as

imposed in this case may amount to a great injustice. Clemmons had some justification

for his aggression against Weems. He had reason to believe Weems had just robbed

his brother and stolen a gold chain. Weems may have contributed to the escalation of
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the violence by attacking Clemmons with a wooden board. Most importantly, the

medical examiner's testimony at Barnes' trial indicates that Clemmons may not have

struck the fatal blows. In my view, the facts of this case do not warrant a capital

murder conviction and the correspondingly severe sentence of a minimum of fifty years

imprisonment.

The state could have charged Clemmons with second-degree murder or even

manslaughter on the facts. Nevertheless, an aggressive prosecutor brought capital

murder charges, with the result that Clemmons, not even twenty-one years old at the

time and having no prior criminal record, received a life sentence. Mrs. Carole M.

Blocker, Clemmons' mother, addressed a letter to this court movingly describing the

injustice of this capital murder conviction. I quote in part from the letter:

I remember well the day Eric learned that Todd Weems had died. He was

very distraught and said that Todd Weems did not deserve to die. When the

Grand Jury indicted Eric on Capital Murder, I was dumbfounded, as I

wondered how could premeditated murder be inferred from a situation where

the victim died from a spontaneous episode where the victim was acting in the

course of a robbery! . . . This is not cold-blooded, premeditated murder. Can

you imagine how you would have reacted to robbers harming your mother

while you were twenty-one years old, or even now presently?

. . . .

. . . It is not a prosecuter's job to win under and circumstances. Here, we

have a prosecuter's that knew or reasonably should have know that the blows

struck by my son had not caused death. You have a case before you where a

brother who was minding his own business responded to a call of help from his

younger brother who was being robbed by two men. Under circumstances
3This letter is quoted exactly as written. We directed that a copy of the letter be

furnished to counsel for both parties. See Order dated March 8, 1999. That order

further states:

To the extent that the letter raises points already before the

Court on the record of this case, the points will be carefully

considered. That is all the Court can do. Our obligation is to decide

this case on the basis of the record before us and the applicable law.

We cannot consider matters outside the record.

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such as this the Prosecuter should not have sought the highest penalty the State

can seek ( next to death)[.]3

This is an unusual case. The jury convicted Clemmons of capital murder. Yet,

as I have observed, the evidence indicates that Clemmons acted with some justification

for his conduct, and evidence which surfaced in a different trial casts grave doubt on

whether Clemmons struck the blows that killed the victim. These facts and

circumstances suggest that this case is an appropriate one for the Governor of Missouri

to consider a grant of executive clemency. By this concurring opinion, I urge Missouri

Governor Mel Carnahan to review this case and consider reducing the existing life

sentence. I note that Clemmons has already served seventeen years in prison, seven

more than the minimum for second-degree murder and seven more than the maximum

for manslaughter. 

A true copy.

Attest:

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