The Honorable Edward L. Filippine, United States District

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Judge for the Eastern District of Missouri, adopting the report and

recommendation of the Honorable Frederick R. Buckles, United States

Magistrate Judge for the Eastern District of Missouri.

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No. 95-3976

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Dale Howard, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Paul Caspari, *

*

Appellee. *

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 Submitted: September 9, 1996

 Filed: November 4, 1996

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Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and

HANSEN, Circuit Judge.

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WOLLMAN, Circuit Judge.

Dale Howard appeals from the district court's denial of his 28

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U.S.C. § 2254 petition. We affirm. 

I.

On January 14, 1984, Howard entered the home of the victim and his

wife, an elderly couple, intending to take money from them. When the

victim was uncooperative, Howard assaulted him. A police officer found the

victim lying semi-conscious on the floor. The victim's wife's face was cut

and bruised. The victim was brought to a hospital, where he died on

January 24, 1984. The pathologist who performed the autopsy determined,

with reasonable medical
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certainty, that the victim died from pneumonia resulting from his

hospitalization and coma, consequences of the victim's brain damage

resulting 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. 

Howard lived in the same neighborhood as the victim and was an

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." The

detectives gave Howard his Miranda warnings, which he acknowledged. Howard

then voluntarily made incriminating statements, including: "[a]ll that

trouble happened way back when I was drinking"; "I went up to the man, but

I just wanted a couple of dollars"; "I told the old man I wanted some

money, but he refused to give it to me, and he gave me some trouble"; and

"he was like yelling at me and he raised his fist so I just hit him." The

detectives then arrested Howard. 

At the police station, after signing a waiver, Howard wrote out the

following statement:

I told the police that I went to the old man's house and

knocked at his door, so the old man opened the door, I went

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 was

yelling at me so his wife came into the front room so I hit

her. I was drinking a lot. That's why I tried to get some

money that day. I remember it was a Saturday and this house

was just up from where I lived. All I got was a purse 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 videotaped statement, in which he admitted that he was

the victim's neighbor; that he was "pretty loaded" at the time of the

crime; and that he pushed his way into the victim's house when the victim's

wife answered the door. He denied having a stick or hitting the victim

with his fist, but admitted pushing the victim and accepting the victim's

wife's offer of $30. 

A jury convicted Howard of first degree murder, first degree

burglary, and two counts of armed criminal action. The Missouri Court of

Appeals affirmed. State v. Howard, 738 S.W.2d 500 (Mo. App. 1987).

Howard's motion for post-conviction relief was denied following an

evidentiary hearing. The Missouri Court of Appeals refused to review the

motion on the ground that it was unverified. Howard then filed this

section 2254 petition.

II.

Howard contends that the evidence was insufficient to sustain his

conviction because the trial court admitted incriminating statements

without corroborating them or establishing the "corpus delicti" of the

crime. 

The state must establish the corpus delicti by showing that the

alleged injury to the victim occurred and that a person caused it. Once

the corpus delicti is established, the conviction may rest on the

defendant's otherwise uncorroborated confession, which by itself would have

been insufficient to support a conviction. Lufkins v. Leapley, 965 F.2d

1477, 1482 (8th Cir.) (citing Smith v. United States, 348 U.S. 147, 152

(1954)), cert. denied, 506 U.S. 895 (1992). 

The Missouri Court of Appeals made several findings of fact, which

we presume to be correct. These findings include: the fact that the victim

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 pathologist's testimony that the victim's death was caused by

intentionally inflicted blows to the victim's head, which comports with

Howard's alternative statements that he either hit the victim or pushed

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 corroborating

evidence was sufficient to establish the corpus delicti and to support

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 spot

described by [the defendant], and that an autopsy showed head injuries

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 of

counsel because his trial counsel failed to move to suppress Howard's

inculpatory statements. Howard argues that his counsel should have moved

to suppress the statements because Howard told her that he did not receive

his Miranda warnings, because the confession was involuntary since Howard

allegedly cannot read or write effectively, and because the detectives

coerced Howard into signing a confession that he thought was a job

application. Putting aside the question of procedural default, we conclude

that Howard's counsel was not ineffective.

To prevail on a claim of ineffective assistance of counsel, Howard

must show both that counsel's performance fell below an objective standard

of reasonableness and that he was prejudiced by that substandard

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Parker

v. Bowersox, 94 F.3d 458, 461 (8th Cir. 1996).
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Howard's counsel's performance met the objective standard of

reasonableness. First, Howard himself admits that he received the Miranda

warnings before he made 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 not

necessarily render his confession involuntary. A confession will be

considered involuntary only if the defendant's will was overborne, law

enforcement officers acted improperly, or the confession was not the

product of a rational intellect. United States v. Bordeaux, 980 F.2d 534,

538-39 (8th Cir. 1992). Howard introduced no evidence showing that an

inability to read or write tainted his confession. Howard gave an oral

confession, first to the detectives and then on videotape. In addition,

Howard also wrote a statement by hand, which contradicts his assertion that

he cannot write.

Third, no other evidence indicated that Howard's statements were

coerced or the product of an irrational intellect. Howard volunteered his

initial statements to the detectives. He offered no other evidence of

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 did

not act unreasonably in declining to argue the involuntariness of Howard's

confession.

Although we do not normally consider the pro se brief of a party

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 considered

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. 
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The judgment is affirmed. 

A true copy.

Attest:

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