### The Honorable Edward L. Filippine, United States Distric t 1 

### Judge for the Eastern District of Missouri, adopting the rep ort and recommendation of the Honorable Frederick R. Buckles, UnitedStates Magistrate Judge for the Eastern District of Missouri. ___________ No. 95-3976

___________ Dale Howard, * * Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Paul Caspari, * * Appellee. *

___________ Submitted: September 9, 1996 Filed: November 4, 1996

___________ Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

___________ WOLLMAN, Circuit Judge.

Dale Howard appeals from the district court's denial of his 2 8 1 U.S.C. § 2254 petition. We affirm.

I.

On Jan uary 14, 1984, Howard entered the home of the victim and hi s wif e, an elderly couple, intending to take money from them. When th e victim was uncooperative, Howard assaulted him. A police officer found th e victim lying semi-conscious on the floor. The victim's wife's face was cu t and bruise d. The victim was brought to a hospital, where he died o n January24, 1984. The pathologist who performed the autopsy determined, with reasonable medical

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certai nty, that the victim died from pneumonia resulting from hi s hospi talization and coma, consequences of the victim's brain damag e re sulting from multiple, traumatic head injuries. The pathologist' s testimony also indicated that the head injuries were caused by intentional blows from an instrument wielded by another.

Howar d lived in the same neighborhood as the victim and was a n occasional informant for one of the detectives who eventually arrested him
. Within a week after the victim's beating, the detective had asked Howard to report anything he learned about the crime. More than two years later, the detective and his partner saw Howard on the street and asked to speak with him. Howard voluntarily got into the back of the detective's car and brought up the subject of "what happened over there by my street." Th e detectives gave Howard his Miranda warnings, which he acknowledged. Howar d then voluntarily made incriminating statements, including: "[a]ll tha t trouble happened way back when I was drinking"; "I went up to the man, but I j ust wanted a couple of dollars"; "I told the old man I wanted som e money, but he refusedto give it to me, and he gave me some trouble"; and "he was like yelling at me and he raised his fis t so I just hit him." The detectives then arrested Howard.
At the po lice station, after signing a waiver, Howard wrote out the following statement:

I told the police that I went to the old man's house an d knocked a t his door, so the old man opened the door, I wen t into the house with a stick. I went into the house and the old man was yelling at me. All I wanted was some money. He tried to hit me but I hit him with my stick three times. He wa s yelli ng at me so his wife came into the front room so I hi t her. I was drinking a lot. That's why I tried to get som e money that day. I remember it was a Saturday and this hous e was just up from where I lived. All I got was a pu rse that has some money in it. When I left the old couple was on the front room floor. /s/ Dale Howard.

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Howard then made a vi deotaped statement, in which he admitted that he was the victim's neighbor; that he was "pretty loaded" at the time of th e crime; and that he pushed his way into the victim's house when the victim' s wife an swered the door. He denied having a stick or hitting the victi m with his fist, but admitted pushing the victim and accepting the victim's wife's offer of $30.

Ajury convicted Howard of first degree murder, first degre e burglary, and two cou nts of armed criminal action. The Missouri Court of Appeals a ffirmed. State v. Howard , 738 S.W.2d 500 (Mo. App. 1987)
. Howard's motion for post-conviction relief was denied following a n evidentiary hearing. The Missouri Court of Appeals refused to review the motion on the ground that it was unverified. Howard then filed thi s section 2254 petition.

II.

Howard contends that the evidence was insufficient to sustain hi s co nviction because the trial court admitted incriminating statement s withou t corroborating them or establishing the "corpus delicti" of th e crime.

The state must establish the corpus delicti by showing that th e alleged injury to the victim occurred and that a person caused it. Once the c orpus delicti is established, the conviction may rest on th e defendant's otherwise uncorroborated confession, which by itself would hav e been insufficient to support a conviction. Lufkins v. Leapley , 965 F.2d 1477, 148 2 (8th Cir.) ( citing Smith v. United States , 348 U.S. 147, 15 2 (1954)), cert. denied , 506 U.S. 895 (1992).

The Miss ouri Court of Appeals made several findings of fact, whic h we presume to be correct. These findings include: the fact that the victi m died; the fact that two people were in the victim's home, which comports with Howard's story; the fact that the victim

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was found in the living room, which is the place Howard stated he left the victim; the pathologi st's testimony that the victim's death was caused by intent ionallyinflicted blows to the victim's head, which comports wit h How ard's alternative statements that he either hit the victim or pushe d him; and the fact that the victim's wife's face was cut, which corresponds to Howard's statement that he struck the victim's wife. This corroboratin g evidence was sufficient to establish the corpus delicti and to suppor t Howard's conviction. See United States v. Todd , 657 F.2d 212, 217-18 (8th Cir. 1981) (defendant 's confession sufficiently corroborated by "evidence that [the victim] died, that his remains were located in the exact spo t described by [the defendant], and that an autopsy showed head injurie s consistent with the description by [the defendant] of [the victim] being struck with a tire iron"), cert. denied , 455 U.S. 926 (1982).

III.

Howard also asserts that he was denied effective assistance o f counsel because his trial counsel failed to move to suppress Howard' s inculpatory statement s. Howard argues that his counsel should have moved to suppress the statements because Howard told h er that he did not receive his Mirandawarnings, because the confession was involuntary since Howard allege dlycannot read or write effectively, and because the detective s coe rced Howard into signing a confession that he thought was a jo b application. Putting aside the question of procedural default, we conclud e that Howard's counsel was not ineffective.

To preva il on a claim of ineffective assistance of counsel, Howar d must show both that counsel's performance fell b elow an objective standard of rea sonableness and that he was prejudiced by that substandar d performance. Strickland v. Washington , 466 U.S. 668, 687 (1984); Parker v. Bowersox , 94 F.3d 458, 461 (8th Cir. 1996).

### -5- Howar d's counsel's performance met the objective standard o f reasonableness. First, Howard himself admits th at he received the Miranda warnings before he ma de the statements. Thus, it was not only reasonable but prudent for counsel to decline to argue the contrary.
Second, Howard's alleged inability to read and write does no t necess arilyrender his confession involuntary. A confession will b e consid ered involuntary only if the defendant's will was overborne, la w enforc ement officers acted improperly, or the confession was not th e product of a rational intellect. United States v. Bordeaux , 980 F.2d 534, 538-3 9 (8th Cir. 1992). Howard introduced no evidence showing that a n inability to read or write tainted his confession. Howard gave an ora l confession, first to the detectives and then on videotape. In addition, Howard also wrote a statement by hand, which contradicts his assertion tha t he cannot write.
Third, no other evidence indicated that Howard's statements wer e coerced or the product of an irrational intellec t. Howard volunteered his initi al statements to the detectives. He offered no other evidence o f coercive tactics by law enforcement officers. In addition, he wrote out his written confession himself, which belies his assertion that he thought it was a job application. Given these circumstances, Howard's attorney di d not act unreasonably in declining to argue the i nvoluntariness of Howard's confession.
Althoughwe do not normally consider the pro se brief of a part y represented by counsel, see, e.g. , United States v. Marx , 991 F.2d 1369, 1375 (8th Cir.), cert. denied , 510 U.S. 1018 (1993), we have considere d Howard's pro se claims that trial counsel was ineffective for failing to allege that Howard's arrest was illegal and that his statements were the fruits of an illegal arrest. We find these claims to be without merit.

### -6- The judgment is affirmed.
A true copy.

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