United States Court of Appeals

                             FOR THE EIGHTH CIRCUIT



                                  No. 95-3864


Reginald L. Powell,                         *
                                            *
      Appellant,                            *
                                            * Appeal from the United States
          v.       *                        District Court for the Eastern
                                            * District of Missouri.
Michael S. Bowersox,                        *
                                            *
         Appellee. *




                       Submitted: November 18, 1996

                          Filed: May 1, 1997


Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS
      SHEPPARD ARNOLD, Circuit Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Reginald Powell, a Missouri inmate convicted of two counts of first-
degree murder and sentenced to death on both counts, appeals from the
district court's1 denial of his petition under 28 U.S.C. § 2254.              We
affirm.


                                       I.
     On November 14, 1986, Mr. Powell unexpectedly encountered Calvin
Courtney, his stepbrother.      Upon recognizing Mr. Courtney,




     1
      The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
Mr. Powell said, "Oh, I didn't know who it was, because we were getting
ready to rob you," and "Man, I have been around all day robbing people."
Accompanying Mr. Courtney were brothers Freddie and Lee Miller, who earlier
that evening had refused to purchase liquor for Mr. Powell.                  An argument
ensued, and Mr. Powell pushed the Millers to the ground and kicked each of
them in the groin, chest, and face.              Mr. Powell yanked down one of the
brothers'    pants    and   undergarments    and    kicked   him   repeatedly    in   the
genitals.     When Mr. Courtney attempted to stop the beating, Mr. Powell
responded,    "My    baby   needs   some   Pampers"    and   resumed   his   pummeling.
Pleading for his life, Lee Miller said, "You can beat me all you want, but
don't kill me."


     Mr. Powell jumped repeatedly on the Millers' chests, breaking all but
their top ribs.      He then examined the Millers for valuable items, pulling
down Lee Miller's pants while doing so.               While the Millers were still
alive, Mr. Powell thrust a knife three times into each one's abdomen and
chest to a depth of five or six inches.                They died from stab-induced
bleeding.    Shortly thereafter, Mr. Powell commented to some companions that
he had "stabbed" and "stuck" the Millers.             "Don't bring no knife if you
ain't going to use it," he added.            He had blood on his shoes and was
carrying the bloody knife.          Later, in a tape-recorded statement to the
police, Mr. Powell confessed to the murders and exclaimed, "You know, we'll
say I had the last -- the last laugh."


     A Missouri jury convicted Mr. Powell on two counts of first-degree
murder.   After the jury was unable to agree on a sentence, the trial court
sentenced Mr. Powell to death on both counts and later denied his motion
for a new trial.     A second judge subsequently denied his motion for post-
conviction relief.       The Missouri Supreme Court affirmed the conviction,
death sentence, and




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denial of post-conviction relief.               See State v. Powell, 

(Mo.
1990) (en banc), cert. denied, 

(1991).                                In Powell v.
Bowersox, 

(E.D. Mo. 1995), the district court denied
Mr. Powell's request for a hearing and denied all claims for relief
asserted in his petition for writ of habeas corpus.                          The district court
later    also    denied       Mr.   Powell's     motion      to   amend     the    judgment     under
Fed. R. Civ. P. 59(e).              Mr. Powell     appeals.


                                                 II.
        Mr.    Powell    claims       first     that   his    trial    counsel      violated      his
constitutional right to effective assistance of counsel in a number of
ways.    He complains that in the trial's sentencing stage counsel did not
inquire       whether    he    desired     to   testify,     that     in    neither      the   guilt-
determination stage nor the sentencing stage of the trial did counsel
inform him that he could testify, that in neither stage did counsel advise
him to testify, that in both stages counsel decided unilaterally that he
would not testify, that in neither stage did counsel inform him that he had
the unilateral right to decide whether he would testify, that in neither
stage did counsel discuss with him what form his testimony might take, and
that    in     neither    stage      did   counsel     discuss       with    him    the    possible
"ramifications" of any testimony that he might offer.                       Since Mr. Powell did
not assert the last two of these claims at the district court level, we
will not address them.          See, e.g., Sutton v. Settle, 

, 288 (8th
Cir. 1962) (per curiam), cert. denied, 

(1963).


        A claim of ineffective assistance of counsel involves two showings:
First,    the     petitioner        must   demonstrate        that    his    or    her    counsel's
representation fell below an objective standard of reasonableness as
measured by prevailing professional norms of competence, and, second, he
or she must establish a reasonable




                                                 -3-
probability that but for counsel's unprofessional errors the outcome of the
trial would have been more favorable.       A failure to make either showing
makes further scrutiny unnecessary.    See, e.g., Strickland v. Washington,

, 687-88, 694, 697 (1984).


     Our inquiry focuses first on the trial's guilt-determination stage,
where Mr. Powell argues that counsel should have advised him that he could
testify, that counsel should have instructed him to testify, that counsel
should not have decided unilaterally that he would not testify, and that
counsel should have advised him that he could testify even if counsel did
not want him to do so.    Mr. Powell says that had he been properly advised,
he would have taken the stand and would have discussed his PCP and alcohol
usage and the effects that these had on him.          He believes that his
testimony would have aided his defense of diminished capacity.            We
disagree.


     The jury heard testimony from other witnesses concerning Mr. Powell's
state of intoxication and the effect that intoxication could have on one
who suffers from Mr. Powell's mental deficiencies.     Trial counsel did not
believe that Mr. Powell's testimony would add enough favorable information
to offset the harm that his taking the stand would do to his defense of
diminished capacity.     Trial counsel believed that Mr. Powell's competency
had improved measurably since the murder, and she feared that he would
appear far more competent on the stand than the expert witnesses said he
was when he committed the murders.


     Counsel's fears were not unfounded.     The bulk of the trial testimony
indicated that Mr. Powell's mental capacities had improved.    His testimony
could very well have damaged his defense in the manner that trial counsel
feared.     Further, had he




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testified, Mr. Powell would have been subject to cross-examination on all
of the grisly details of the double murder, including the matters contained
in his taped confession.      It is clear from these considerations that there
is no reasonable probability that Mr. Powell's testimony would have
produced a different result in his trial.                He therefore has failed to
demonstrate that he was prejudiced by his counsel's alleged shortcomings.



       Regarding the penalty phase of his trial, Mr. Powell argues that
counsel should have informed him that he could testify, that counsel should
have   inquired    if   he   desired    to    testify,    that   counsel   should   have
affirmatively     advised    him   to   testify,   that    counsel   should   not   have
unilaterally decided that he would not testify, and that counsel should
have told him that he had the right to decide unilaterally to testify.               Had
he been given such advice, Mr. Powell maintains, he would have taken the
stand and expressed remorse, pleaded for the jury to spare his life, spoken
about the circumstances surrounding the murders, discussed his childhood,
and generally humanized himself before the jury.
       As in the guilt-determination stage, however, had he testified he
would have faced a cross-examination in which he most likely would have
been forced to discuss every aspect of the double murder, leaving a fresh
imprint of the horrific acts that he committed on the minds of the jurors.
He also would likely have had to confront his own taped confession, where
he stated, as we have already noted, "You know, we'll say I had the last --
the last laugh."    Further, during the state post-conviction relief hearing,
Mr. Powell's counsel exerted more effort than one would hope necessary to
extract a statement of remorse from Mr. Powell.              A similar difficulty at
the penalty stage would have been extremely harmful to Mr. Powell.              He has
thus failed to demonstrate that trial counsel's actions resulted in
prejudice to him.




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     Given the concerns discussed above and the fact that Mr. Powell's
motion for state post-conviction relief contained approximately 100 points
and subpoints, along with his charges of ineffective assistance of counsel,
we believe that had Mr. Powell's counsel acted as he now maintains she
should have and had he testified, he would now be asserting that counsel
was ineffective for advising him to take the stand.        See, e.g., Payne v.
United States, 

, 346 (8th Cir. 1996); see also Nazarenus v.
United States, 

, 1397 (8th Cir. 1995) (petitioner asserted that
his lawyer was ineffective for advising him to testify, thereby subjecting
him to harmful cross-examination).   For the reasons discussed above, then,
we conclude that counsel rendered effective assistance at trial.


                                     III.
     Mr. Powell also draws our attention to an instruction that the trial
court declined to submit to the jury.       He asserts that during the trial's
penalty phase the trial court should have instructed the jury to consider
in mitigation whether "[t]he capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements
of the law was substantially impaired."           The instruction's absence,
Mr. Powell argues, precluded the jury from considering relevant evidence
and consequently violated rights guaranteed to him by the Eighth and
Fourteenth Amendments.


     Those amendments require that the sentencer in a capital case          be
allowed to weigh in mitigation any feature of a defendant's character or
record and any circumstances of the offense that the defendant presents in
support of a sentence less than death.      See, e.g., Eddings v. Oklahoma, 

, 110, 112 (1982); see also Johnson v. Texas, 

, 361
(1993).   According to




                                     -6-
Mr. Powell, the evidence showed him to be borderline mentally retarded, and
demonstrated that he had consumed large amounts of alcohol before the
attack, had a diminished ability "coolly [to] reflect" or deliberate on his
actions, and suffered substantial impairment to his judgment, reasoning,
and decision-making skills.
     Two of the instructions that the trial court gave in this case stated
that in determining whether any mitigating circumstance existed the jury
could "consider all of the evidence" and "any circumstances which you find
from the evidence in mitigation of punishment."               Two other instructions,
moreover,   indicated   to    the   jury    that   it   had   to   "consider   all   the
circumstances in deciding whether to assess and declare the punishment at
death."   In Battle v. Delo, 

, 1558-60 (8th Cir. 1994), aff'd,

(8th Cir. 1995), cert. denied, 

(1996), we dealt
with an argument similar to the one that Mr. Powell advances here.
Although in Battle the trial court instructed the jury only that it could
"consider all of the evidence," coupled with a general instruction to
consider the circumstances of the offense, our court nevertheless concluded
that the instructions passed constitutional muster because they included
"generalized language allowing consideration of evidence not specifically
enumerated."   

    The instructions in this case go considerably
beyond those approved in Battle in explaining to the jury that it is not
restricted with regard to the kinds of matters that it may consider in
mitigation.


     Evidence relevant to Mr. Powell's mental state was presented over the
course of several days.      The instructions authorized the jury to weigh all
of the evidence presented during that time, including the evidence that
Mr. Powell complains was precluded from consideration.             Although the charge
did not include the instruction




                                           -7-
at issue, the trial court did direct the jury to consider the totality of
the evidence.   We conclude that the charge did not preclude the jury from
considering     any   mitigatory   evidence   and    therefore   that   it   was
constitutional.


                                      IV.
     Finally, Mr. Powell objects to the presence of the word "unanimously"
in two jury instructions, both of which stated in relevant part:        "If you
unanimously find that one or more mitigating circumstances exist[s]
sufficient to outweigh the aggravating circumstances found by you to exist,
then ... you must return a verdict fixing defendant's punishment at
imprisonment for life" (emphasis supplied).         Mr. Powell asserts that, as
in Mills v. Maryland, 

, 371, 380, 384 (1988), there exists a
substantial probability that a reasonable juror would think that he or she
could not weigh a particular mitigating circumstance against aggravating
factors unless the jurors first unanimously agreed that that particular
circumstance existed.


     The Eighth and Fourteenth Amendments, as we have already said,
require that in capital cases an individual juror be allowed to consider
in mitigation any aspect of the defendant's character or record and any
circumstances of the offense offered by the defendant for purposes of
mitigation.   Because of the finality of an executed death sentence and the
unavailability of the modifications to that sentence that are available in
noncapital sentences, a juror must be permitted to consider every available
detail in mitigation.     See, e.g., 

, 112-16.       Mr.
Powell argues that, as in 

, 380, 384, there exists
the possibility that a single juror could have blocked the weighing of
mitigating evidence in violation of the Constitution.




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        The Mills decision, it is true, turns on the presence of the word
"unanimously" in a verdict form, and, in the particular circumstances of
that case, the Supreme Court found that there existed a substantial
probability that reasonable jurors would think that they could not weigh
a mitigating circumstance against aggravating factors unless the entire
jury first agreed on the existence of that circumstance.           

instructions in this case do not exhibit such an infirmity.       The challenged
instructions    deal   with    balancing     mitigating   circumstances   against
aggravating factors, not with determining what mitigating circumstances
exist.    These instructions are, in fact, the same in every relevant respect
as the instructions that our court upheld in 

,
and in Griffin v. Delo, 

, 905-06 (8th Cir. 1994), cert. denied,

(1995).       We concluded in those cases that the petitioner
had failed to demonstrate a substantial probability that a reasonable juror
could have interpreted the word "unanimously" in such a way as to bestow
upon each member of the jury an unconstitutional veto power over the
consideration of mitigating evidence.       We reach the same conclusion in this
case.


                                       V.
        For the reasons discussed, we affirm the district court's judgment.



        A true copy.


             Attest:


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




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