Daryl Shurn v. Paul Delo, Superintendent

177 F.3d 662, 1999 U.S. App. LEXIS 8821, 1999 WL 288371
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 10, 1999
Docket98-2456
StatusPublished
Cited by44 cases

This text of 177 F.3d 662 (Daryl Shurn v. Paul Delo, Superintendent) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daryl Shurn v. Paul Delo, Superintendent, 177 F.3d 662, 1999 U.S. App. LEXIS 8821, 1999 WL 288371 (8th Cir. 1999).

Opinions

BRIGHT, Circuit Judge.

A jury convicted Daryl Shurn of first-degree murder for his participation in the shooting death of Charles Taylor. The trial court sentenced Shurn to death after the jury failed to agree on punishment. Shurn appeals the denial of his petition for a writ of habeas corpus.1 28 U.S.C. § 2254 (1999). He challenges his conviction and sentence. We affirm the conviction but vacate the death sentence. We remand with instructions that the district court issue a writ of habeas corpus releas[664]*664ing Shurn from the sentence and ordering the State of Missouri either to sentence Shurn to life imprisonment without eligibility for probation or parole or to grant Shurn a new penalty-phase trial.

I.STATEMENT OF FACTS

The Missouri Supreme Court briefly summarized the facts as follows:

On July 6, 1987, Shurn and Weaver parked an Oldsmobile ’98 outside of Taylor’s apartment complex. After a confrontation at Taylor’s door, Shurn and Weaver chased him behind the complex, and Taylor was shot. The evidence was unclear whether Shurn, Weaver, or both shot Taylor. Shurn and Weaver then returned to the car. Weaver then left the car and again went behind the complex. More shots were fired. Weaver returned to the car, and Shurn and Weaver drove away. After a chase, police officers apprehended Shurn and Weaver.

State v. Shurn, 866 S.W.2d 447, 455 (Mo. 1993) (en banc).

The state charged Shurn with first-degree murder and first-degree armed criminal action in violation of Mo.Rev.Stat. § 565.020.1 and Mo.Rev.Stat. § 571.015. At Shurn’s trial, the state presented evidence that Taylor stood as a probable witness in the pending drug trial of Shurn’s brother. The state admitted it could not prove that Shurn shot Taylor.

The jury found Shurn guilty of both charges on March 26, 1988. At the penalty phase, the court instructed the jury to consider as aggravating circumstances whether Taylor’s murder involved “depravity of mind” and whether Taylor “was killed as a result of his status as a potential witness.” The court instructed the jury to consider as mitigating circumstances whether Shurn had no significant history of prior criminal activity, whether Shurn acted as an accomplice and not the triggerman, and that Shurn had five children and was a devoted family man. The jury returned a verdict stating it was “unable to decide or agree on punishment.” The trial court sentenced Shurn to death after finding that Taylor was killed as a result of his status as a witness.

The Missouri Supreme Court affirmed Shurn’s conviction, sentence, and denial of post-conviction relief. Shurn, 866 S.W.2d at 473. Shurn filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri on December 16, 1994. The court denied the petition on August 25, 1997. This court granted a certificate of appealability on May 25, 1998. This appeal followed.

II. THE ISSUES ON APPEAL

Shurn raises five issues on appeal:

1. Whether the prosecutor’s penalty-phase closing argument violated due process;
2. Whether the death sentence violated the Eighth Amendment requirement of individualized sentencing in that the trial court failed to make a particularized finding of Shurn’s motive or mental state;
3. Whether trial counsel’s failure to prepare constituted ineffective assistance of counsel at sentencing;
4. Whether the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by racially discriminating in the use of peremptory strikes to exclude blacks from the jury; and
5. Whether the Missouri Supreme Court gave the death sentence meaningful proportionality review.

We affirm the denial of Shurn’s Batson claim. The record adequately supports the trial court’s determination that the prosecutor gave valid, race-neutral explanations for using peremptory strikes to exclude four blacks from the jury. As the Batson claim provides the only grounds for challenging the conviction, we affirm the conviction. However, we also hold that [665]*665the prosecutor’s penalty-phase closing argument violated due process. This requires us to vacate the death sentence. Our ruling on the argument makes it unnecessary to reach the remaining issues, all of which pertain to the validity of the sentence.

III. THE BATSON CLAIM

We first address Shurn’s Batson claim, as a Batson violation would require a new trial. Batson held that a state may not use peremptory challenges to exclude individuals from serving on a jury because of their race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Missouri Supreme Court described the relevant portion of the voir dire as follows:

After strikes for cause, the panel consisted of 48 potential jurors, including six blacks. The prosecutor peremptorily excluded four of the blacks: venireper-sons Grider, Lenox, Webster, and Hughes. Shurn then made a timely Bat-son objection.
The prosecutor explained: (1) that he struck venireperson Grider because she was a schoolteacher, was married to a pastor, and had earlier asked to be removed from the panel; (2) that he struck venireperson Lenox because she indicated she was reluctant to impose the death penalty unless the state proved that Shurn — and not his accomplice William Weaver — was the shooter, and he had requested the court to strike her for cause; (3) that he struck venire-person Webster because she “waffled” on whether she could impose the death penalty unless Shurn was the shooter, and seemed uninterested during voir dire; and (4) that he struck venireper-son Hughes because she remarked, “we’re not God,” did not seem truthful, and showed hostility towards the state’s case by nodding when another venire-person raised the issue of race.

Shurn, 866 S.W.2d at 456.

We view the Batson issue as a close one. Shurn has indicated facts that could support a finding of racial discrimination in the use of peremptory challenges. However, the state trial court and the district court agreed that the prosecutor gave valid, race-neutral reasons for excluding the black jurors. We cannot say that the trial court clearly erred in finding that the prosecutor lacked discriminatory motivation. A prosecutor’s motive in excluding jurors presents a question of fact. See Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir.1996). In habeas proceedings, we presume the correctness of state court findings of fact, and we may set them aside, absent procedural error, only if they lack adequate support in the record. See Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

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Bluebook (online)
177 F.3d 662, 1999 U.S. App. LEXIS 8821, 1999 WL 288371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daryl-shurn-v-paul-delo-superintendent-ca8-1999.