VERNON BROWN IN THE COURTS: THE ST. LOUIS MURDERS OF SYNETTA FORD AND JANET PERKINS, 1995-2004

Janet Perkins was nine and walked home from the Cole School in north St. Louis the same way every afternoon, west along Enright Avenue, three and a half blocks. On October 24, 1986, she passed the house of a man the neighborhood knew as Thomas Turner, who had just brought his stepsons home from the same school. He called her in. His stepsons saw her enter, and so did a neighbor's relative, before he locked the boys in their bedroom. She was found the next day in two trash bags near a dumpster behind the house.

The man's name was Vernon Brown. Arrested on October 27, he led the police to a second dumpster where they found her shoe, raincoat and school papers, and made a videotaped statement. In a later statement he admitted killing Synetta Ford, nineteen, who had been found in her basement apartment on Washington Avenue in March 1985 with a cord around her neck and a knife in her throat. He had worked as a maintenance man in that building, and she had told a friend two days before she died that she was frightened after finding him on her stairs. He had been questioned then and let go.

The two murders were tried separately and each ended in a death sentence: the Perkins case in 1988, the Ford case in 1991. The Supreme Court of Missouri affirmed the Perkins judgment in 1995, in an opinion that answers his claims that the statements should have been suppressed and that his confession to the Ford killing should not have reached the Perkins penalty jury. In 1997 it sent the Ford case back for a hearing on whether the prosecutor had struck women from the jury because they were women, and in 1999 it affirmed. In 2003 a panel of the Eighth Circuit ordered a new penalty phase in the Ford case, because the trial judge had refused to let the defense read the jury a letter from Brown's brother, a soldier in Saudi Arabia during the Gulf War; in 2004 the full court reversed the panel and let the sentence stand.

Brown was executed at the prison in Bonne Terre early on May 18, 2005, for the murder of Janet Perkins, after the United States Supreme Court voted five to four to let the execution go ahead. He was pronounced dead at 2:35 a.m.

The facts are the Missouri court's, stated, as it says itself, "in the light most favorable to the verdict." Brown said at trial that PCP blackouts began before the killing and that he remembered little, and he gave shifting accounts of Ford's death, including that she stabbed herself in a struggle. The court rejected those accounts; they remain his claims. Nothing in these rulings concerns the suspicion, reported elsewhere, that he killed a child in Indiana before he came to St. Louis, and we have not repeated it as fact.

Brown's three stepsons testified at the Perkins trial when they were eleven, nine and seven, and appear here as T.J., C.M. and J.M.; his wife is K.M. Two jurors whose seats were challenged are A.E. and H.O., and the prospective jurors the court discussed by first name and initial are left as the court printed them. Synetta Ford's roommate, the friend who took her in the night before she died and the other adult witnesses are named as the court named them.

The 2004 en banc opinion reaches us as a short caption and a long run of notes, which is how the capture separated it; the reasoning is there, but it reads out of order. The court's text is public domain and has been left as scanned, including "Brovm" for Brown and a date in the 1999 opinion that puts Brown's arrival at the Grand Cafe on March 7, "1995," a year the court plainly meant as 1985.

902 S.W.2d 278, decided June 20, 1995

STATE of Missouri, Respondent, v. Vernon BROWN, Appellant.

No. 71264.

Supreme Court of Missouri, En Banc.

June 20, 1995.

As Modified on Denial of Rehearing July 25, 1995.

Janet M. Thompson, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

[OPINION BY ROBERTSON, Judge. type=majority]

ROBERTSON, Judge.

A jury convicted Vernon Brown of first degree murder in violation of Section 565.020, RSMo 1994, and recommended that he be put to death. The trial court agreed and entered a sentence of death. Subsequently, the motion court overruled Brown’s Rule 29.15 motion. This appeal followed. We have jurisdiction. Mo. Const, art. V, § 3. The conviction, sentence and denial of post-conviction relief are affirmed.

We interpret the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, — U.S. -, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).

On October 24, 1986, nine-year-old Janet Perkins left the Cole School in north St. Louis around 3:00 p.m. and walked toward her home three and a half blocks away. She generally took the same route each day, west on Enright Avenue. Under normal circumstances, the trip took less than 15 minutes.

Vernon Brown, who was then using the name Thomas Turner, had picked up his stepsons from Cole School and returned to their home on Enright Avenue in time to see Janet walking past. Brown called to her and ultimately enticed her to enter the house.

Brown’s stepsons saw Janet enter the house. A neighbor’s relative saw Brown on the front porch and Janet walking up the steps to the house. Brown ordered the stepsons to their bedroom and locked the door from the outside. Despite Brown’s claims that at this point he began suffering PCP-induced blackouts, Brown’s own statements, the testimony of his stepsons, and the physical evidence show that he took Janet to the basement of the house, and bound her feet and one hand with a wire coat hanger, forcing her into a crouched position that permitted her head to reach the height of Brown’s genitalia. Brown then strangled Janet to death with a rope.

The next day, enforcement authorities found Janet’s body in two trash bags near a dumpster in an alley behind Brown’s house.

Further investigation raised suspicion about Brown. When suspicion turned to probable cause, the police arrested Brown on October 27, 1986, confronted him with their evidence, including testimony of a neighbor who had seen Janet enter Brown’s house, and asked Brown to tell them where to find Janet’s missing shoe, raincoat and school papers. Brown led police to a different dumpster, in which they found a bag containing Janet’s missing property.

Brown made a videotaped statement implicating himself as Janet’s killer. In a subsequent statement, Brown also admitted killing Synetta Ford, a woman who had been murdered on March 7, 1985.

On November 18, 1986, a St. Louis City grand jury indicted Brown on two counts of first degree murder for the deaths of Janet Perkins and Synetta Ford. Brown’s counsel moved to suppress the two videotaped statements and to sever the trials on the two murders. The trial court sustained the motion to sever but overruled the motion to suppress.

The jury convicted Brown of Janet Perkins’ murder and, in the penalty phase, found four statutory aggravating circumstances and four nonstatutory aggravating circumstances. The jury recommended that Brown be put to death. The trial court concurred, entering its judgment of conviction and sentence of death on December 2, 1988. Subsequently, Brown filed a timely Rule 29.15 motion. After an evidentiary hearing, the motion court overruled the Rule 29.15 motion. This appeal followed.

II.

A few preliminary matters require our attention. First, we choose to depart from Brown’s presentation of the issues to proceed chronologically.

Second, Brown operates under several fundamental misconceptions about the proper subjects of a motion for post-conviction relief. He repeatedly assigns error to the motion court’s refusal to order relief for acts or omissions which, if erroneous, would constitute simple trial errors subject to review on direct appeal. We will not address claims of motion court error founded on alleged trial court errors which appellant should have preserved for direct appeal.

Finally, unless a claim of plain error facially establishes substantial grounds for believing that “manifest injustice or miscarriage of justice has resulted,” this Court will decline to exercise its discretion to review for plain error under Rule 30.20. We will, however, consider related claims of ineffective assistance of counsel for failure to preserve the alleged trial error under the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III.

Brown claims that the trial court erred in overruling his motion to strike venireperson A.E. for cause. Ms. E. ultimately served on the jury.

Upon examination by the prosecutor, Ms. E. confessed that she thought the death penalty appropriate under some circumstances. The prosecutor then asked her to describe the circumstances to which she referred. She replied, “Cold-blooded, just for no reason, such as not in self-defense or somebody set out to do that. I don’t know.”

Brown’s attorney asked her to clarify the meaning of “no reason” for the murder. He said, “... it seems to me that if I didn’t prove to you otherwise and what you just said, that you would be basically in favor of giving the death penalty; am I wrong?” She replied, “If you cannot prove that he didn’t cold-bloodedly murder that child? ... Probably, yes.” Brown’s counsel moved to strike Ms. E., because he understood her to mean she would expect him to bear the burden of proving that the killing was not “a killing for no reason.” The trial court overruled the motion to strike for cause.

Later in voir dire, addressing the issue of the burden of proof, Brown’s counsel asked Ms. E. if she could follow the instruction that the defendant need not present any evidence of his innocence. She said that she could. He also asked if she would take Brown’s failure to testify as evidence of his guilt. She said she would not.

“[T]he qualifications of a prospective juror are not determined conclusively by a single response but are made on the basis of the entire examination.” State v. Smith, 649 S.W.2d 417, 425 (Mo. banc), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). “The question is not whether a prospective juror holds opinions ..., but whether these opinions will yield and the juror will determine the issues under the law.” State v. Feltrop, 803 S.W.2d 1, 8 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). The trial judge is in the best position to evaluate the venireper-son’s commitment to follow the law contained in the instructions. State v. Leisure, 749 S.W.2d 366, 375 (Mo. banc 1988), cert. denied, — U.S. -, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). We review the trial court’s ruling for abuse of discretion and ask “whether there is a real probability of injury to the [defendant].” Feltrop, 803 S.W.2d at 7.

Ms. E. spoke the words upon which Brown relies in response to counsel’s question — a question that assumed a legal burden Brown did not bear. Ms. E., a layperson not yet instructed generally in the law or specifically in the burden of proof, could well have thought that counsel’s question accurately described the law. As such her answer merely reflected her uninstructed notions on the propriety of the death penalty generally. When the questioning turned to the burden of proof and her duty to follow the law, Ms. E. made clear her willingness to follow the law once made aware of it. “Venireperson [A.E.] ultimately adhered to the presumption of innocence; thus the trial judge was not required to strike her for cause.” State v. Mahurin, 799 S.W.2d 840, 845 (Mo. banc 1990), cert. denied, 502 U.S. 825, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991). The trial court did not abuse its discretion in declining to strike juror A.E. for cause.

Brown next assigns error to several voir dire excerpts as instances in which the trial court erred in sustaining the state’s objection to the questions of Brown’s counsel.

In questioning venireperson McClain, Brown’s counsel (Ramsey) inquired into McClain’s views on the effect of drug use on guilt:

McClain: Maybe he wasn’t in control of himself. And that brings in a whole different picture, doesn’t it?

Ramsey: Well, that’s what I want to ask you about because, well, basically, you know, there are some elements to First Degree Murder that you’re going to have to decide because the State’s charging First Degree Murder. You’re going to first of all be instructed that the State has the burden of proving this beyond a reasonable doubt. And by burden of proof it’s going to mean that they have to come forward with the proof to prove every element of what First Degree Murder is, and by every element there’s different parts of Murder First Degree.

First, you’d have to decide whether it was Janet Perkins that was killed and she was actually killed, okay? Second of all, you’d have to find and believe beyond a reasonable doubt that Vernon Brown caused the death; and then third—

Prosecutor: I object to counsel instructing as to the law.

The Court: Sustained.

Ramsey: Would you have any problem considering if you were instructed that the defendant had to act with premeditation and deliberation for Murder First Degree?

Prosecutor: Same objection. He’s instructing as to the law.

The Court: Sustained, improper during voir dire.

Ramsey: Well, she [the prosecutor] was allowed to go into matters of law in her voir dire and as to what circumstances would justify this and I think I’m entitled to go into whether or not they believe there was a premeditation and deliberation, whether they would consider that in conjunction with the Murder First Degree conviction. I don’t see anything improper about that at all.

The Court: You’re not permitted to go into the proposed charge to the jury during voir dire. You may ask to consider all the elements of the offense, which they must consider beyond a reasonable doubt, but you cannot give them the charge or the proposed charge of the Court at this time.

“Counsel may not tell prospective jurors what law will be applied in the case or what instructions will be given to them.” State v. White, 722 S.W.2d 92, 94 (Mo.App.1986); accord State v. Beatty, 617 S.W.2d 87, 92 (Mo.App.1981). In State v. Dixon, 717 S.W.2d 847, 848 (Mo. banc 1986), this Court held that although a defendant may inquire whether the jury can follow the court’s instructions, counsel could not read a manslaughter instruction to the jury.

At its essence, Brown’s point claims that the trial court’s “inconsistent rulings favored the state.” Yet, Brown’s counsel did not object to the state’s voir dire. There is simply no basis for a claim of inconsistent rulings in the absence of an objection to the state’s voir dire. When apprised of Brown’s counsel’s voir dire transgressions by the state, the trial court entered the correct ruling.

The point is denied.

The remaining claims of voir dire error were not preserved. On their face, the points raised do not rise to the level necessary to warrant plain error review. They are, therefore, procedurally waived.

IV.

Brown claims prejudicial error during the guilt phase of his trial resulting from the admission of certain evidence, the making of certain statements by both witnesses and the prosecutor, the submission of certain jury instructions, and the failure to submit others.

Brown initially contends that the trial court erred in finding his stepsons competent to testify against him, and in permitting the prosecutor to use leading questions in examining the boys. At the time of the trial, the stepsons, T.J., C.M. and J.M., were ages eleven, nine, and seven, respectively.

Section 491.060(2) creates a rebut-table presumption that persons under the age of ten are incompetent to testify. The presumption is rebutted by showing:

(I) a present understanding of, or the ability to understand upon instruction, the obligation to speak the truth; (2) the capacity to observe the occurrence about which testimony is being sought; (3) the capacity to remember the occurrence about which testimony is sought; and (4) the capacity to translate the occurrence into words. State v. Ray, 779 S.W.2d 3, 5 (Mo.App.1989). Determination of competency is left to the discretion of the trial court, and its decision will not be reversed absent a clear abuse of discretion. State v. Johnson, 694 S.W.2d 490, 491 (Mo.App.1985).

State v. Feltrop, 803 S.W.2d 1, 10 (Mo. banc 1991). The law also presumes a person ten years of age or older competent to testify, unless the evidence shows the witness has mental infirmities or has less than ordinary intelligence for his age. § 491.060(2), RSMo 1994. State v. Johnson, 714 S.W.2d 752, 758-759 (Mo.App.1986); State v. Potter, 747 S.W.2d 300, 305-306 (Mo.App.1988).

Nothing in the record indicates that eleven-year-old T.J. suffered from diminished mental capacity. Given the trial court’s broad discretion and superior ability to judge demeanor, we will not reverse absent a clear showing that the trial court abused its discretion. Feltrop, 803 S.W.2d at 10. Brown fails to make such a showing. We find no error in the trial court’s decision to permit T.J. to testify.

C.M. and J.M. had not yet reached the age of ten by the time of the competency hearing. Brown selectively quotes from the record in an attempt to show that C.M. and J.M. lacked the requisite mental and oral skills to rebut the Section 491.060(2) presumption.

While it is true that the two younger boys experienced difficulty recalling time frames, they understood their obligation to speak the truth and were able to recall the day of Janet’s death, their memories of what happened and express those memories in a coherent manner. Given the trial court’s broad discretion and superior ability to judge demeanor, we will not reverse absent a clear showing that the trial court abused its discretion. Feltrop, 803 S.W.2d at 10. The trial court did not abuse its discretion in permitting the boys to testify.

The trial court permitted the prosecution to ask leading questions of T.J. during the competency hearing. Brown claims this constitutes error.

At the competency hearing, Brown called T.J. to testify, and the prosecutor cross-examined him. A party may ask leading questions of its own witness on cross-examination when the other party calls that witness. See, e.g., King v. Copp Trucking, Inc., 853 S.W.2d 304, 310 (Mo.App.1993).

The point is denied.

Brown asserts that the trial court committed reversible error in overruling his objection to the testimony of Donna Denny, a worker at a local blood plasma center at which Brown sold blood. Denny knew Brown by his alias, Thomas Turner. Denny testified that she remembered Brown because she had seen him become violent. Brown claims Denny’s testimony amounted to the prohibited admission of evidence of past crimes or prior bad acts, citing State v. Carter, 475 S.W.2d 85, 88 (Mo.1972), for the proposition that the erroneous admission of evidence of unconnected crimes presumptively creates prejudice.

Carter is inapposite. No witness testified to an unconnected crime or act. Denny did not testify to any assaultive behavior. The state elicited Denny’s testimony to explain the reason Denny remembered Brown’s visit to the plasma center. Use of an alias “cannot be characterized as clear evidence associating appellant with other crimes.” State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989).

The point is denied.

Brown urges that the trial court erred in submitting guilt phase Instructions Nos. 4 and 8, and in refusing to submit Proposed Instruction No. 7a in place of Instruction No. 8.

Brown asserts that Instruction No. 4 violates due process by diluting the definition of “beyond a reasonable doubt” by using the phrase “firmly convinced” in the instruction. This Court has repeatedly rejected this claim, recently in State v. Chambers, 891 S.W.2d 93, 105 (Mo. banc 1994).

The point is denied.

Brown objected to the submission of Instruction No. 8 at trial and offered Proposed Instruction No. 7a as an alternative. MAI-CR3d 310.50 provided the model for Instruction No. 8. In State v. Erwin, 848 S.W.2d 476, 483 (Mo. banc), cert. denied, — U.S. -, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993), this Court held that MAI-CR3d 310.50 violated due process in that it relieved the state of its burden to prove the required mental state of the crime charged. Erwin held that submission of MAI-CR3d 310.50 would constitute reversible error in all subsequent trials and in all trials subject to direct appeal at the time of the Erwin decision. Id. at 484. This case falls within the Erwin exception, however, only if Brown preserved the specific claim that MAI-CR3d 310.50 violates due process by relieving the state of its burden to prove intent. Id.

Here, Brown objected to Instruction No. 8 without mentioning due process, calling it “inappropriate” to the facts of the case and an ex post facto law. His motion for new trial repeated those legal bases for his objection to the instruction. Therefore, Brown failed to preserve his constitutional claim under the Erwin exception.

Brown argues that by offering Proposed Instruction No. 7a he put the trial court “on notice” of the constitutional infirmity of Instruction No. 8. Instruction No. 8 read: “In determining the appellant’s guilt or innocence, you are instructed that an intoxicated or drugged condition ... will not relieve a person of responsibility for his conduct.” Brown urged the court instead to employ Instruction No. 7a to instruct the jury that “evidence that the appellant was in an intoxicated or drugged condition may be considered by you in determining whether appellant acted knowingly....”

Erwin says: “Neither shall a defendant be entitled to an instruction that the jury may consider evidence of voluntary intoxication in determining if the defendant had the requisite mental state.” Id. at 482. Erwin expressly rejected the language contained in proposed Instruction No. 7a. The trial court properly refused to submit Instruction No. 7a because it misstated the law.

Moreover, because it differed from Instruction No. 8 only by changing the significance of a drugged condition, proposed Instruction No. 7a did not preserve an Erwin due process claim as to MAI-CR3d 310.50.

The point is denied.

Brown moved for acquittal at the end of the guilt phase of his trial claiming that the state introduced no evidence of “deliberation,” an element of first degree murder. § 565.020. He assigns error to the trial court’s failure to enter a judgment of acquittal at that time.

In reviewing a challenge to the sufficiency of the evidence appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the appellant guilty beyond a reasonable doubt.

State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). The jury may infer deliberation from circumstances that indicate “cool reflection for any length of time no matter how brief.” § 565.002(3); State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991).

The jury had the following evidence before it on which to base such an inference: Brown lured Janet into his dwelling; he sent his stepsons to their room and locked the door behind them; he took Janet to the basement of his dwelling; he bound her with a wire coat hanger and strangled her with a rope. The jury was not required to believe Brown’s incredible claim that he experienced PCP blackouts during crucial moments of the murder. The evidence nevertheless supported a finding of cool reflection in preparation for Janet’s death.

The point is denied.

Brown urges that the trial court erred in admitting Brown’s confession to the murder of Janet Perkins in the guilt phase of his trial. Before the trial began, Brown moved to suppress the statements in which he implicated himself in the Perkins murder. The trial court overruled the motion, which incorporated both Fifth and Sixth Amendment grounds.

The record clearly indicates that Brown received his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and waived his Fifth Amendment right to counsel immediately before he gave each statement and prior to the commencement of an adversary judicial proceeding. His Sixth Amendment right to counsel did not attach until the state filed charges. Davis v. U.S., — U.S.-,-, 114 S.Ct. 2350, 2354, 129 L.Ed.2d 362 (1994); State v. Parker, 886 S.W.2d 908, 918 (Mo. banc 1994), cert. denied, — U.S.-, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995). The state had filed no charges by the time Brown made the Janet Perkins statement.

The point is denied.

We now consider assignments of error relating to the penalty phase.

Brown assigns error to the trial court allowing the state to endorse his stepsons as witnesses against him in the penalty phase and in overruling his motions for a continuance and for sanctions for late disclosure of evidence by the state.

The trial began October 17, 1988, nearly two years after Janet’s murder. The state endorsed Brown’s stepsons as witnesses in the penalty phase on May 26, 1987. Two weeks prior to trial, the state furnished Brown a copy of a police report showing allegations that Brown had sodomized his stepsons. On October 10, 1987, the state informed Brown that it intended to use the sodomies as evidence of an aggravating circumstance at the penalty phase of the trial. On October 14, 1987, Brown filed a motion for a continuance, claiming that he suffered a medical condition that would make it difficult for him to sit through trial and that he had only recently been provided the police report outlining Brown’s sodomies against his stepsons. The trial court denied the continuance.

On October 14, 1988, the state provided Brown with statements of various witnesses from Indianapolis, Indiana, surrounding Brown’s guilty plea to charges of assault and battery with intent to gratify sexual desire in Indiana in 1973. The victim of the Indiana felony was a 12-year-old female. Brown received a sentence of up to five years as a result of that conviction.

On October 18, 1988, the day after voir dire in the trial commenced, Brown filed a motion for sanctions to prevent the state from using the Indiana evidence or, in the alternative, for a continuance. The trial court overruled both motions.

The state offered the evidence that Brown sodomized his stepsons in support of nonstat-utory aggravating circumstances. Brown now claims that the trial court erred in admitting the sodomy evidence, and in denying a continuance, on the ground that the state’s failure to disclose its intent to prove the sodomy as a nonstatutory aggravating circumstance deprived his counsel of time to prepare for that evidence.

The grant or denial of a motion for continuance lies in the sound discretion of the trial court. State v. Nave, 694 S.W.2d 729, 735 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 901 (1986).

Difficulties counsel might encounter in preparing to deal with evidence do not require the judge to grant a continuance or exclude otherwise admissible evidence. Moreover, in his continuance motion, Brown indicated that the state informed him of its intent to offer evidence of the sodomies no later than October 10, a week before trial and three weeks before the start of the penalty phase. The trial court reasonably concluded that the time between disclosure and the start of the penalty phase was sufficient time to prepare to meet the evidence. See State v. Stokes, 638 S.W.2d 715, 720 (Mo. banc 1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1263, 75 L.Ed.2d 488 (1983).

Assuming for the sake of argument only that the trial court erred in overruling the motion for continuance despite the three-week interval between disclosure and the use of the evidence in the penalty phase, there was no prejudice. The jury found four statutory aggravating circumstances, only one of which was necessary to support the death penalty. State v. McMillin, 783 S.W.2d 82, 104 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). Even removing all of the sodomy evidence, there remained an overwhelmingly sufficient legal and factual predicate for the imposition of the death penalty.

We also reject Brown’s claim that he received notice of the Indiana evidence from the state too late to permit adequate preparation for its use in the penalty phase. First, Brown’s counsel had all the evidence pertinent to the Indiana conviction well before the penalty phase of the trial began. Second, the only Indiana evidence introduced by the state at the penalty phase was written evidence of Brown’s Indiana conviction used for the purpose of proving the statutory aggravating circumstance that Brown was a person “who has one or more serious assaultive criminal convictions.” § 565.032.2(1), RSMo 1994. The Indiana records speak for themselves and require no investigation or additional preparation to understand. Third, neither the motion for the continuance filed as a result of the disclosure of the Indiana record evidence nor Brown’s brief on appeal offer any more than a bare allegation of prejudice as a result of the state’s “late” disclosure. Neither document speaks of any specific information further investigation or preparation would have uncovered that would have benefitted Brown in his defense against the record evidence from Indiana.

The trial court did not err to Brown’s prejudice in overruling Brown’s motions for continuance and sanctions against the state regarding either the sodomy or the Indiana conviction evidence.

The point is denied.

Dr. James Monteleone testified for the state during the penalty phase concerning the sodomy of Brown’s stepsons in 1987. Monteleone’s testimony showed that physical evidence corroborated the claims of T.J. and J.M. that Brown had sexually abused them. On cross-examination, Brown’s counsel attempted to ask about a 1984 physical examination of the boys conducted at the request of their mother. The state objected on the ground of relevance. The trial court sustained the objection. Brown now claims trial court error in the decision to sustain the objection.

A 1987 police report provided Brown by the state indicated that the boys were examined at Cardinal Glennon Hospital in 1984 following a previous report of abuse. Brown offered no evidence in an offer of proof either that Dr. Monteleone participated in any examination of any of the children in 1984 or was aware of the 1984 examination.

It appears from the record and from Brown’s brief that Brown’s counsel’s inquiry was an attempt to bring out a statement in the 1987 police report that the boys’ mother paid no attention to C.M.’s complaint that Vernon “was messing with him” because she believed “the children played, lied.” [Emphasis added.] Dr. Monteleone’s testimony of physical trauma to T.J. and J.M.’s anuses rebutted the mother’s statement as to the question of whether the sexual abuse actually occurred. The trial court did not err in sustaining the state’s objection.

The point is denied.

Brown assigns error to the trial court’s penalty phase admission of (1) testimony by Dr. Monteleone that the absence of positive findings of sexual abuse of C.M. did not rule out sexual abuse against him and (2) record evidence of Brown’s Indiana assault conviction that included statements concerning an Indiana rape charge for which Brown was not convicted.

As to the first claim, there is nothing unfairly prejudicial about testimony by an expert as to facts within his expertise. Brown had the opportunity to cross-examine the expert and did so. That the expert did not testify to Brown’s liking is not trial court error. Brown complains essentially that the court permitted testimony damaging to his case. Moreover, Brown mischaracterizes Dr. Monteleone’s testimony in his brief. The record clearly shows that he testified to positive findings of sexual abuse in T.J. and J.M.

As to the Indiana charges, Brown claims that because the document showed that Indiana had charged him with two crimes, rape and assault, but only convicted him of the assault, the jury might think he committed two crimes. Brown’s argument rests on his conclusion that the document is misleading.

The Indiana document is not misleading. It shows that Brown was convicted of assault and charged with rape and that the Indiana prosecutor chose not to prosecute the rape charge. The jury was fully informed as to the prosecutor’s decision not to prosecute. The trial court did not err in overruling Brown’s objections.

Brown objected to the prosecutor’s comments in her opening statement of the penalty phase that Brown married a woman in Indiana, did not get divorced, and married the mother of his stepsons in St. Louis. This statement strictly tracked evidence admitted in the guilt phase of the trial, to which Brown did not object and which Brown himself revealed in statements to the police. He complains that because he never faced a charge of bigamy, the argument misled the jury into believing he had committed another crime. The prosecutor did not, however, either mention or imply a charge or conviction of bigamy; she summarized a state of affairs exactly supported by the evidence. Moreover, the evidence goes to Brown’s character, a subject highly relevant to penalty phase deliberations. State v. Chambers, 891 S.W.2d 93, 107 (Mo. banc 1994).

The point is denied.

Brown asserts that Missouri’s death penalty scheme violates due process and the Eighth Amendment because (1) this Court refuses to engage in meaningful proportionality review, (2) prosecutors have unbridled discretion to seek the death penalty and (3) the death penalty serves no legitimate state interest. This Court has considered and rejected these very arguments in prior cases, most recently in Chambers, 891 S.W.2d at 113.

The point is denied.

Brown urges that the trial court erred in admitting Brown’s confession to the murder of Synetta Ford and related evidence in the penalty phase because (a) the court’s prior severance order precluded mentioning the Ford murder in the Janet Perkins’ trial, and (b) police illegally obtained Brown’s statement about the Ford killing by interrogating him without the presence of Ronnie White of the Public Defender’s Office, who represented him in the Janet Perkins’ case.

Contrary to Brown’s assertion, the motion to sever and the court’s order sustaining the motion to sever did not expressly prohibit the use of the Ford evidence in the penalty phase of the Perkins’ trial. A severance of murder counts does not alter the principles guiding the admission of evidence in the penalty phase of a criminal trial. During the penalty phase the jury may consider not only the circumstances of the crime but the character of the defendant and the acts that reveal that character. The trial court has discretion to admit any evidence helpful to the jury in determining the proper punishment. State v. Six, 805 S.W.2d 159, 166 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991). The trial court did not abuse its discretion in permitting the jury to hear evidence of the Ford murder during the penalty phase.

Before the trial began, and indeed before the trial court severed this case from the Ford murder ease, Brown moved to suppress the statements in which he implicated himself in the Perkins and Ford murders. We have previously discussed the Perkins confession — IV, F, supra. The trial court overruled the motion, which incorporated both Fifth and Sixth Amendment grounds, as to the Ford confession as well.

The day following Brown’s confession to the Perkins’ murder, attorney Ronnie White began representing Brown in the Perkins’ ease. That night, Brown made his Synetta Ford statement, having waived his Fifth Amendment rights. The state filed no official charges against Brown in the Synetta Ford case until months later.

The Sixth Amendment right to counsel is offense-specific: if it has not attached for a given charge, the state may introduce evidence on that charge obtained in the absence of counsel while a defendant has representation on another charge. State v. Parker, 886 S.W.2d 908, 918 (Mo. banc 1994), cert. denied, — U.S.-, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995); McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Therefore, the trial court did not err in admitting the Synetta Ford statement.

The point is denied.

Brown claims that the trial court erred in overruling his objections to Instructions Nos. 6 and 7. Those instructions set forth the statutory and nonstatutory aggravating circumstances, respectively, and read as follows:

INSTRUCTION NO. 6

In determining the punishment to be assessed against Brown for the murder of Janet Perkins, you must first unanimously determine whether one or more of the following aggravating circumstances exists:

Whether Brown was convicted of Assault and Battery With the Intent To Gratify Sexual Desires on June 28,1973 in the Criminal Court of Marion County of Indiana.

Whether the murder of Janet Perkins involved torture or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman.

Whether the murder of Janet Perkins was committed for the purpose avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement of Brown.

Whether Janet Perkins was a potential witness in the investigation of an assault of Janet Perkins and was killed as a result of her status as a potential witness.

Whether the murder of Janet Perkins was committed while the defendant was engaged in the perpetration of or the attempt to perpetrate rape, sodomy or kidnapping.

... if you do not unanimously find from the evidence beyond a reasonable doubt that at least one of the foregoing circumstances exists, you must return a verdict fixing punishment of the defendant at imprisonment for life by the Division of Corrections without eligibility for probation or parole.

INSTRUCTION NO. 7

If you have found beyond a reasonable doubt that one or more of the aggravating circumstances submitted in Instruction No. 6 exists, then, in determining the punishment to be assessed against the defendant for the murder of Janet Perkins, you may also consider:

Whether Brown was convicted of Assault and Battery With the Intent To Gratify Sexual Desires on June 28, 1973, in Marion County of Indiana.

Whether the defendant admitted to the killing of Synetta Ford.

Whether the defendant admitted to the killing of Janet Perkins.

Whether the defendant committed acts of sodomy on T.J.

Whether the defendant committed acts of sodomy on J.M.

Whether the defendant committed acts of sodomy on C.M.

You are further instructed that the burden rests upon the state to prove the circumstance beyond a reasonable doubt. On each circumstance that you find beyond a reasonable doubt, all twelve of you must agree as to the existence of the circumstance.

If you do not unanimously find and believe from the evidence beyond a reasonable doubt that a circumstance exists, then that circumstance shall not be considered by you in returning your verdict fixing the punishment of the defendant.

Brown claims that Instruction No. 7 is erroneous in that (1) the reference to the Indiana assault impermissibly “double counted” the same factor from Instruction No. 6, (2) the “admission” paragraphs turn mitigating circumstances into aggravating circumstances, (3) the Synetta Ford killing was an unadjudicated crime not properly submitted as an aggravating circumstance, and (4) the sodomy was an uncharged crime not supported by the evidence and hence not proper as an aggravating circumstance.

Statutory aggravating circumstances guide the jury’s deliberations in an attempt to avoid arbitrary and capricious imposition of the death penalty. State v. Shaw, 636 S.W.2d 667, 675 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). Once a jury finds one statutory aggravating circumstance, it may then, but only then, consider all other evidence relevant to the imposition of the death sentence, including nonstatutory aggravating circumstances. Nonstatutory aggravating circumstances therefore cannot prejudice a defendant by allowing consideration of a fact which the jury already found to be true as a statutory aggravating circumstance. Brown correctly asserts that Instruction No. 7 duplicates the reference to the Indiana assault. However, “[s]uch duplication was harmless error, if error at all.” State v. Zeitvogel, 707 S.W.2d 365, 369 (Mo. banc), cert. denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986).

Brown next contends that using his statements admitting that he killed Janet Perkins and Synetta Ford as aggravating circumstances turned mitigating evidence into aggravating evidence. Brown’s argument proceeds from the hope that admitting a crime following arrest always shows accepting responsibility for it—and that that is an indication of his improving, if not good character.

Had Brown marched to the police station voluntarily to confess the murders, we might agree. He did not. Instead, he remained silent on the Ford murder for over eighteen months. His confession, when made after his arrest in another murder, variously blamed Ford’s death on drugs, on Ford attacking him first, and on Ford “accidentally” stabbing herself in the chest and throat in the course of a struggle, and argued that he strangled her in self-defense (apparently after she stabbed herself).

The confession to Janet Perkins’ murder came only following Brown’s arrest and all of the evidence pointed to Brown. Such confessions are not evidence in mitigation.

From his argument, it appears that Brown wishes the instruction had omitted reference to his confessions. We doubt he seriously wishes the instruction had said more simply that he had killed Ford and Perkins. If anything, the instruction as given softened their focus to Brown’s benefit.

The point is denied.

Brown claims that the trial court erred in submitting the Ford murder as a nonstatuto-ry aggravating circumstance in that the state had not convicted Brown of the crime. Brown confessed to a role in Synetta Ford’s death.

During the penalty phase, the jury may properly consider any act of the defendant that shows his character. The absence of a conviction where the defendant admits the crime does not change that rule. State v. Six, 805 S.W.2d 159, 167 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991).

As to the sufficiency of evidence for the submission of sodomy on Brown’s stepsons as an aggravator, each boy testified that Brown committed acts which constitute sodomy, and medical examinations positively indicated sodomy on two of the boys. That evidence supports the submission of the instruction. The trial court did not err in submitting penalty phase Instruction No. 7.

We consider now Brown’s claims of error relating to Instruction No. 6 regarding statutory aggravating circumstances.

Brown first insists that the Indiana conviction for assault and battery with intent to gratify sexual desires is not a “serious assaultive criminal conviction” within the meaning of Section 565.082.2(1) and the trial court erred in submitting it as a statutory-aggravating circumstance. We disagree.

The Indiana indictment charged Brown with assault and battery by fondling a 12-year-old child in a “rude or insolent manner.” Brown seizes on the words “rude or insolent” to argue that the Indiana assault was not also “seriously assaultive.”

Brown pled guilty to a felony in Indiana. By definition a felony is a “crime of a ... more serious nature than those designated misdemeanors.” Black’s Law Dictionary 617 (7th ed. 1990). Obviously, an assault and battery to gratify sexual desires is an assault. To conclude, as Brown urges, that sexual assault of a child that results in a felony conviction is not seriously assaultive misunderstands the nature of the offense. Any felony assault and battery that constitutes a sexual invasion of a child is seriously assaul-tive within the meaning of Section 565.032.2(1).

Brown next claims that the “torture or depravity of mind” instruction does not provide sufficient guidance to the jury, without a limiting definition of “depravity of mind”. This Court has found such a limiting instruction necessary where the aggravating circumstance turns on depravity of mind. See State v. Chambers, 891 S.W.2d 93, 109 (Mo. banc 1994), (instruction did not include the word “torture,” but included a limiting definition); State v. Feltrop, 803 S.W.2d 1, 14-17 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). However, where the evidence supports a jury finding of torture, a word that needs little definition, the absence of a limiting instruction for depravity of mind will not destroy the validity of the jury’s finding. LaRette v. Delo, 44 F.3d 681, 686-87 (8th Cir.1995). Here, Brown bound a young girl with a coat hanger in a strange position, witnesses heard Janet screaming while Brown laughed, and Janet died at Brown’s hand. The trial court properly submitted the instruction for torture without a limiting definition of depravity of mind.

Insufficiency of evidence, according to Brown, rendered the remaining three statutory aggravating circumstances inappropriate for submission to the jury. Brown claims that no evidence supported the following submissions: (a) that Brown killed Janet to avoid arrest, (b) that an investigation existed in which Janet could be a witness, and (c) that Brown attempted to commit rape, sodomy, or kidnapping. Where a defendant challenges the sufficiency of evidence to support an aggravating circumstance, the test is whether a reasonable juror could reasonably find from the evidence that the proposition advanced is true beyond a reasonable doubt. See State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

As to the first claim, it requires no stretch of the imagination to conclude that jurors could reasonably have inferred that Brown killed Janet because she could identify him, and thus cause his arrest. Six, 805 S.W.2d at 169; State v. Grubbs, 724 S.W.2d 494, 501 (Mo. banc), cert. denied 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707 (1987). By the same token, a reasonable juror could infer that Brown foresaw an investigation that had yet to happen and killed Janet to forestall that development. Finally, the jury did not find the third aggravating circumstance. The trial court committed no error in submitting Instruction No. 6.

The point is denied.

Brown also assigns error to the trial court’s submission of Instructions Nos. 3 and 11 in the penalty phase of the trial. We have previously addressed the merits of Brown’s protest of Instruction No. 3 in our discussion of Instruction No. 4 from the guilt phase: both instructions include the definition of “beyond a reasonable doubt” borrowed from MAI-CR3d 302.04. For the reasons previously given, IV, D, supra, the trial court properly instructed the jury on that definition.

Brown’s challenge to Instruction No. 11 posits that by explaining to the jury that the judge will decide the penalty if the jury cannot, the instruction downplayed the jury’s responsibility. We have repeatedly rejected this claim. Six, 805 S.W.2d at 167; see also California v. Ramos, 463 U.S. 992, 1009-1014, 103 S.Ct. 3446, 3457-3460, 77 L.Ed.2d 1171 (1983).

VI.

Brown filed a timely Rule 29.15 motion. We now consider Brown’s claims of error by the motion court. Review is under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A convicted criminal is entitled to a new trial only if his counsel’s performance and nonstrategic decisions fall below the standard of a reasonably competent attorney, and there exists a reasonable probability that but for counsel’s professional errors, the outcome of the proceeding would have been different.

Brown’s 111-page Rule 29.15 motion claims that the practice of the circuit court to provide prospective jurors with a “Handbook of Information for Trial Jurors” violated his rights under the Sixth, Eighth and Fourteenth Amendments. Before this Court he now argues that the handbook supplied instructions to the jury not consistent with MAI-CR. He did not claim in his Rule 29.15 motion that his counsel was ineffective in failing to object to this; that point is raised for the first time on appeal; we will not consider it.

Given its most generous reading, the con-clusory wording of Brown’s Rule 29.15 claim is one of trial court error. Such a claim is not cognizable under Rule 29.15.

The point is denied.

At his Rule 29.15 motion hearing, Brown sought to introduce testimony and reports by several experts which he asserts would prove, among other things, that juries do not understand death penalty instructions or the relative costs and benefits of the death penalty, and that the death penalty should be disallowed. The motion court found these claims non-cognizable under Rule 29.15. We agree.

Rule 29.15 does not provide a duplicative opportunity for review of claims properly addressed on direct appeal. State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992). We addressed Brown’s position on the constitutionality of Missouri’s death penalty statutes on direct appeal. Similarly, Brown’s allegations of jury misunderstanding raise no issues which he could not properly address in a direct claim of instructional error, and the motion court properly refused to consider them. Six, 805 S.W.2d at 173. Moreover, constitutional imposition of the death penalty does not require, or indeed allow, jury consideration of the costs and benefits of the death penalty. State v. Powell, 798 S.W.2d 709, 716 (Mo. banc 1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). The motion court did not err in refusing to address Brown’s non-cognizable claims.

Brown’s asserts that his counsel was ineffective for failure to move to strike H.O. as a juror. Brown refers to selected statements from Ms. O.’s voir dire responses to show she was an “automatic death penalty juror.” His brief excerpted the following statements: “... I really do believe if somebody takes somebody else’s life, he ought to pay for it;” “if it was just cold murder, then it would have to be ... a death sentence;” and “I think if somebody, like I said, in cold-blooded murdered, then that’s it. I mean, that’s the death sentence.”

A determination of the existence and depth of bias and prejudice can be made accurately only after a potential juror understands the legal requirements of her responsibility as a juror. We do not expect venire[persons] to come to court with a legally sufficient or unerringly correct understanding of the requirements the law imposes on jurors.

State v. Leisure, 749 S.W.2d 366, 375 (Mo. banc 1988), cert. denied, — U.S.-, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). The court must look at the entire voir dire to determine juror qualification, not selectively chosen portions. State v. Feltrop, 803 S.W.2d 1, 8 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). Within context, Ms. O.’s statements follow:

Ramsey (Brown’s counsel): Okay. Well, when you said that if somebody took somebody’s life, they ought to have to pay for it, do you mean they should get the death penalty?

H.O.: They should either — again circumstances, either the death penalty or the — I mean, either one, life in prison, whatever the circumstances would be.

Ramsey: Well, can you tell me what kind of case or what kind of circumstances you think a person would deserve a life sentence without possibility of parole as opposed to the death sentence?

H.O.: Well, like I said, if it was just cold murder, then it would have to be the life sentence — I mean, a death sentence.

Ramsey: Like a planned?

H.O.: A planned thing or premeditated or whatever, then I believe that. But, if there’s a chance, you know, for it to be, circumstantial evidence or something, that could keep them or let them go into, I guess you could say, life in prison or whatever the law is in regards to that.

So, that’s what I think. I don’t know. I may be wrong. But I think if somebody, like I said, in cold-blooded murdered, then that’s it. I mean, that’s the death sentence.

⅜ ⅜ ‡ # ⅜ ⅜

Ramsey: You could follow any instructions that might be given to you about that?

H.O.: Yes.

Courts do not disqualify a venire-person because she has unchannelled opinions about the death penalty. Leisure, 749 S.W.2d at 372. Instead, the critical inquiry is whether her opinion is so strong that she will not follow the instructions. Ms. O.’s voir dire indicates no such opinions. Even if Brown’s counsel should have moved to strike Ms. O., no prejudice attended the failure.

The point is denied.

Brown finds his counsel ineffective in failing to object to the trial court’s strike for cause of venirepersons Curtis Robinson and Alexander Hodges, who were serving probation following D.W.I. convictions. Brown claims that striking these two African-Americans deprived him of a jury composed of a fair cross section of the community and equal protection of the law. The motion court denied Brown’s claim on the basis that Brown made no showing that the venire from which his jury came failed to represent a fair cross section of the community. Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), limits fair cross section claims to the venire. There is no Sixth Amendment right to a jury that represents a fair cross section of the community. Other than the bare conclusion he announces, Brown offers no evidence or legal reason to believe that the absence of these venirepersons from the jury prejudiced his defense.

The point is denied.

According to Brown, his

trial counsel was ineffective, “either through ignorance or negligence” during voir dire, because he failed to object to or correct the prosecutor’s improper explanation of the penalty phase of the trial. Had he been effective, he would have appropriately explained the law as it related to the roles of aggravating and mitigating circumstances, and merey in the jury’s determination of the appropriate penalty to be imposed.

The motion court held: “This allegation is eonclusory in that movant has not alleged which statements were incorrect and how he was prejudiced.”

Bare conclusions, without more, are insufficient to invoke the motion court’s jurisdiction.

The point is denied.

Brown contends that his trial counsel failed to represent him effectively in that he did not object to the frequent mention by police witnesses that they “became interested” in Brown when they learned he was not Thomas Turner, but Vernon Brown. Brown characterizes this testimony as inadmissible “evidence of unrelated crimes.” He is wrong.

To maintain two separate identities does not necessarily constitute a crime, and here no witness characterized it as a crime. Use of an alias “cannot be characterized as clear evidence associating appellant with other crimes.” State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989).

The point is denied.

Brown also believes his counsel should have objected to police officer Hardy’s testimony that he found a pistol in Brown’s apartment. In his testimony, the officer listed the items he recovered in his search, including the paint chips matching those found on Janet’s body, wire coat hangers, and a gun. Contrary to Brown’s assertion, the record shows that his counsel objected to the gun’s introduction on Fourth Amendment grounds and later on grounds of relevancy and that the trial court excluded the gun from evidence. The gravamen of Brown’s complaint seems to be trial court error in not declaring a mistrial sua sponte.

The trial error is not reviewable under Rule 29.15.

The point is denied.

Brown claims that his counsel was ineffective in failing to object to statements made by the prosecutor in opening statement and closing argument. None of the statements constituted improper opening statement or closing argument.

Three of the statements paraphrased testimony to the effect (1) that the police looked more closely at Brown when they learned he was Vernon Brown not Thomas Turner; (2) that Donna Denny, an employee at the plasma center, feared Brown’s capacity for violence; and (3) that the absence of seminal fluid in Janet’s body did not preclude sexual assault. The evidence supported each statement and was relevant to issues in this ease. There was, therefore, no basis for finding counsel ineffective for failing to object.

Five of the offending arguments represented fairly commonplace efforts on the part of the prosecutor to argue the credibility of her witnesses. The prosecutor argued that the jury heard from “impressive witnesses;” Brown claims that the prosecutor’s use of those words improperly placed the prestige of her office behind certain witnesses. The prosecutor said the “evidence is uncontradict-ed and unrefuted;” Brown complains the state improperly commented on his refusal to testify. The prosecutor attempted to attribute the failure of police to nail down a crucial date to Brown’s selective memory of details; Brown characterizes this as “burden shifting.” The prosecutor suggested that witness Donna Presley, a neighbor, took note of Janet ascending Brown’s porch steps because she had a daughter she worried about; Brown calls this “victim impact” argument. Finally, the prosecutor sought, on rebuttal, to contradict the defense claim that Brown’s stepsons could not remember the events by asking “what kind of human being cannot be haunted by the sight of what went on in that basement?” Brown argues that the prosecutor attempted to personalize the case and make the jury “experience Janet’s death.” Not only does Brown strain credulity in order to transform the mundane into the prejudicial, he fails to offer a shred of applicable authority to support his claim of prejudice.

The point is denied.

Brown challenges one other statement of the prosecutor to which he feels his counsel should have objected. In closing, and after having discussed each element of the evidence specifically, the prosecutor summed up by arguing that the “evidence clearly shows that [Brown] coolly reflected before, during and after the crime.” Brown claims this statement misled the jury as to the law, apparently because it juxtaposed the idea of “cool reflection,” from the first degree murder instruction, with the words “before, during and after,” not found in the instruction. Counsel’s failure to object displayed an understanding of proper argument.

The point is denied.

Brown alleges that the motion court erred in refusing to order relief for counsel’s ineffective preservation of his Erwin point. Brown’s trial took place in October of 1988, and his new trial motion came shortly thereafter. This Court decided Erwin in 1993. “Trial counsel’s performance is evaluated by reference to the law existing at the time of trial.” State v. Chambers, 891 S.W.2d 93, 106 (Mo. banc 1994). Failure to predict a change in law is not ineffective assistance of counsel. Denied.

The fact that Brown’s counsel put on no evidence during the penalty phase forms the basis for several additional claims of ineffective assistance of counsel. Specifically, Brown argues that the motion court erred in not granting relief because his trial counsel (1) did not investigate or present evidence of mental disturbance in mitigation; (2) did not investigate or present any other evidence in support of a life sentence, and (3) did not move for additional funds to facilitate additional investigation. The last claim, of course, assumes not only that the first claims are valid but that lack of funds caused the alleged ineffectiveness. Because the motion court correctly denied relief on the first two grounds, we will not address the third.

At his evidentiary hearing before the motion court, Brown put on what amounted to the case he felt his counsel should have put on during the penalty phase of the trial. Noting gratuitously that the evidence before it did not make a convincing case in mitigation, the motion court correctly explained that Brown’s trial counsel had no duty to put on such evidence, provided he made an adequate investigation and a reasonable strategic decision not to do so. See Walls v. State, 779 S.W.2d 560, 562 (Mo. banc 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990).

Brown’s trial counsel testified that Brown did not cooperate with his investigation, which prevented him from learning of potentially mitigating witnesses, and his investigation revealed Brown’s history of drug use and violent behavior, which counsel felt would come out on cross-examination of mitigating witnesses. The motion court found Brown’s counsel a credible witness and concluded that Brown’s counsel employed a reasonable trial strategy. Brown has not shown how that strategic choice prejudiced his defense. See State v. Feltrop, 803 S.W.2d 1,19 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991).

As to his failure to put on evidence of a mental disturbance, Brown’s trial counsel reviewed available psychiatric evaluations, discussed Brown with psychiatrists who examined him, and considered his own experience with Brown. He chose not to attempt to meet Section 565.032.3(2)’s difficult standard — that mitigation exists if Brown was “under the influence of extreme mental or emotional disturbance.” Instead, Brown’s counsel offered an instruction in mitigation relying on diminished capacity. Counsel saw little chance of success with the extreme mental or emotional disturbance mitigator and chose not to expend his limited resources to that end. This is a reasonable strategic decision. Moreover, the motion court noted that Brown did not aver a specific mental impairment that trial counsel should and could have proved and which, if proven, would have affected the jury’s verdict. This pleading failure alone defeats Brown’s claim. State v. Harris, 870 S.W.2d 798, 815 (Mo. banc), cert. denied, — U.S. -, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994).

The point is denied.

The motion court rejected Brown’s related claim that his counsel was ineffective for failing adequately to prepare to rebut the stepson-sodomy evidence during the penalty phase. Brown did not offer any reason to believe that any particular effort on counsel’s part would have produced an effective defense to the sodomy evidence. Instead, Brown simply alleged a series of steps counsel did not take in utilizing the limited time and resources available to him, none of which are outcome-determinative. This does not suffice to show constitutionally ineffective assistance of counsel, and the motion court did not clearly err.

The point is denied.

Brown claims that his counsel provided ineffective assistance in not preparing to meet the Synetta Ford evidence during the penalty phase of his trial. By his own admission during the motion hearing, Brown’s counsel did not prepare for the Ford case after the severance order and did not consider that separate murder charge again until he learned of the state’s intention to use Brown’s confession to that killing as a non-statutory aggravating circumstance.

The evidence presented during the penalty phase consisted primarily of Brown’s own statement implicating himself in the killing and testimony of the medical examiner concerning the cause of Ford’s death and her physical condition prior to her death (she had no urinary bladder). Brown’s counsel attempted to suppress Brown’s statement before trial and resisted its admission with continuous objections in the penalty phase. Nevertheless, Brown insists that counsel’s failure to prepare to rebut the evidence constituted ineffective assistance and requires a new trial. He does so, however, without alleging any specific defense that his counsel should have put forth that would have altered the outcome of his trial.

Brown’s bare allegation of ineffective assistance of counsel rests on a visceral reaction to counsel’s testimony that he did not prepare to counter the Synetta Ford murder confession. Even if one reasonably assumes that counsel was deficient, that assumption meets only the first prong of the Strickland test. Brown must also show that outcome-determinative prejudice resulted from counsel’s deficiency to prevail under Strickland.

Brown fails. First, he offers nothing to support his conclusion that prejudice resulted. He does not inform the Court what counsel could or should have done to blunt the sharp edges of Brown’s own words admitting his role in the murder. Second, the state offered the murder of Synetta Ford as a nonstatutory aggravating circumstance. The jury found four statutory aggravating circumstances, none of which were the product of trial court error. Any one of these aggravating circumstances was sufficient to support the death sentence. We cannot conclude that counsel’s failure to rebut his client’s own words affected the death sentence recommendation.

Brown insists that his counsel was ineffective in failing to object to Instruction No. 9 during the penalty phase.

Instruction No. 9, which Brown submitted in accordance with MAI-CR3d 313.44, told the jurors that they “may” also consider the following mitigating circumstances:

a. Whether the murder of Janet Perkins was committed while the defendant was under the influence of extreme mental or emotional disturbance.

2 [sic]. Whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

[Emphasis added.] The instruction told the jury that if it unanimously found one or more of the mitigating factors, it must impose the sentence of life without parole if it believed that the mitigating circumstance(s) outweighed the aggravating circumstances. Brown did not object to the instruction; instead, he proposed Instruction No. 9a, which differed only by adding the nonstatutory mitigating circumstance that Brown showed remorse for the killing of Janet Perkins. Brown claims that Instruction No. 9 unconstitutionally limited the jury’s consideration of mitigating evidence.

State v. Petary, 781 S.W.2d 534, 543 (Mo. banc 1989), vacated and remanded, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931, reaffirmed, 790 S.W.2d 243 (Mo. banc), cert. denied, 498 U.S. 973, 111 S.Ct. 443, 112 L.Ed.2d 426 (1990), holds that “may consider” language in a mitigating circumstance instruction “signifies that the jury is given discretion as to what weight the mitigating evidence should receive” and does not offend the constitution. 781 S.W.2d at 543. Moreover, Instruction No. 9 clearly advised the jury that it “may also consider any circumstances which you find from the evidence in mitigation of punishment.” [Emphasis added.]

Counsel was not ineffective in failing to object to an instruction that correctly states the law.

The point is denied.

The remainder of Brown’s argument claims, thirteen in all, involved no objection at trial and thus amount to requests for plain error review and claims of motion court error based on ineffective assistance of trial counsel. We have declined to grant plain error review. As to Brown’s claims of motion court error, we conclude after a careful review that Brown’s counsel was not ineffective. We have reviewed the arguments of which Brown complains and find no reasonable probability that prejudice resulted from counsel’s failure to object to them. An analysis of each statement would offer no prece-dential value and serve no subsequent purpose beyond inviting death penalty appellate counsel to load the appellate shotgun with more ill-aimed verbiage.

VII.

This Court is required to review, pursuant to Section 565.035.3, RSMo 1994, the sentence of death imposed in this case.

We find no evidence that the sentence was imposed “under the influence of passion, prejudice, or any other arbitrary factor.” § 565.035.3(1).

We find that the evidence supports the jury’s finding of the statutory aggravating circumstances under Section 565.032.2(1), (7), (10), and (12), as noted in various parts of this opinion. § 565.035.3(2).

We next determine whether the sentence of death “is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence, and the defendant.” § 565.035.3(3).

If the case, taken as a whole, is plainly lacking circumstances consistent with those in similar cases in which the death penalty has been imposed, then a resen-tencing will be ordered. In those rare instances where no prior similar eases exist, this Court will make an independent judgment as to whether the imposition of death is freakish or wanton under the facts of the case.

State v. Ramsey, 864 S.W.2d 320 (Mo. banc 1993), cert. denied, — U.S.-, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).

The facts of this case appear to make it one that is not easily comparable with other capital murder cases. The victim was nine years old, was bound hand to foot behind her back with a wire hanger, was strangled to death, and her body hidden in an alley by a dumpster. Brown knew that the family was searching for the girl, but feigned ignorance. He had a previous sexual assault charge, there was evidence he had sexually abused his stepsons, and he confessed to killing a woman a few years earlier. There was little mitigating evidence.

In State v. Lingar, 726 S.W.2d 728 (Mo. banc), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987), the capital murder defendant’s victim was a boy who was a junior in high school. The victim had run out of gas and accepted a ride with the defendant to a gas station. The defendant made the victim remove his clothing and tried to force him to masturbate. The defendant shot the victim in the back after the victim had received permission to get out of the car and urinate. After more shots and blows to the head, the victim was left on the ground to die. The death penalty was imposed and upheld.

In State v. Mercer, 618 S.W.2d 1 (Mo. banc), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981), the capital murder defendant raped the victim (as did other men at the scene of the crime) and strangled her. Her body was taken out of the house and dumped over a fence in a field. The death penalty was imposed and upheld.

The victim in this case was a helpless child. Helplessness of the victim is noted as a factor in death penalty eases. {Ramsey, 864 S.W.2d at 327) (also note defendant was of low average intelligence and one of the victims had her hands tied behind her back).

The death penalty has been imposed where the victim was killed to eliminate a witness and to avoid arrest. State v. Six, 805 S.W.2d 159, 169 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991). And it has been imposed where there was “a prior serious assaultive conviction and other serious misconduct.” State v. Sidebottom, 753 S.W.2d 915, 927 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988).

This Court finds the imposition of the death penalty in this case is not excessive or disproportionate.

VIH.

The judgments are affirmed.

All concur.

958 S.W.2d 553, decided September 12, 1997

STATE of Missouri, Respondent, v. Vernon BROWN, Appellant.

No. 73575.

Supreme Court of Missouri, En Banc.

Sept. 12, 1997.

Loyce A. Hamilton, Asst. Public Defender, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for Respondent.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

In 1991, appellant Vernon Brown was convicted of first degree murder and sentenced to death. A motion for post-conviction relief was filed and overruled. This Court has jurisdiction of the appeal. Mo. Const, art. V, sec. 3.

During the jury selection process, the state used ten of its twelve peremptory strikes to remove women from the jury panel. Defense counsel objected to the state’s use of its strikes to eliminate women from the venire. The trial court refused to allow a hearing on whether the state removed these venireper-sons solely on the basis of their gender.

The Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In 1994, the United States Supreme Court expanded Batson to prohibit potential jurors from being stricken solely on the basis of gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Brown unsuccessfully raised a gender based Batson challenge in 1991, three years before J.E.B. The state concedes Bat-son and its progeny apply retroactively to all cases pending on appeal when the new rule is announced. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

In the present case, defense counsel moved to quash the entire jury panel based on both racial and gender Batson violations. Because quashing the jury panel will not “really correct the error,” such motion is not an appropriate objection. State v. Parker, 836 S.W.2d 930, 936 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). Cases decided by the court of appeals since Parker have held that a motion to quash the entire panel is ineffective to preserve the Batson challenge. State v. Sutherland, 859 S.W.2d 801, 803 (Mo.App.1993); State v. Tims, 865 S.W.2d 881, 884 (Mo.App.1993); State v. Shelton, 871 S.W.2d 598, 599-600 (Mo.App.1994); Christensen v. State, 875 S.W.2d 576, 578-579 (Mo.App.1994). However, this case was tried prior to Parker. In Parker, this Court exercised discretion to consider the Batson issue preserved for appeal despite the absence of defendant seeking any relief other than a motion to quash the jury panel. Moreover, as the following exchange indicates, the defense objection in this case went further and was more specific:

[Defense Counsel]: ... I am also moving on the grounds that the strikes were done in a way as to discriminate against women as well, I’m not saying that Batson deals specifically with the issue of gender but I’m saying that I’m making that objection as well.

THE COURT: Very well.

[Prosecutor]: I’m asking that that be ruled out of this discussion, the part about gender, since that has nothing to do with Batson.

THE COURT: I’ll sustain that, that will be a point that if necessary the defendant can urge on appeal.

[Defense Counsel]: Okay. The Court’s failure to allow me to make a record with regard to the State discriminating in terms of gender violates my Ghent’s rights to due process [and] equal protection, ....

THE COURT: Very well. Overruled.

The defense counsel then identified, by name and gender, ten women who had been stricken by the state. The prosecutor stipulated to the identity and gender of the venirepersons he had stricken. Defense counsel’s specific identification of venireper-sons belonging to a protected group that were stricken by the state and asserting that denial of a hearing regarding the strikes violated the Equal Protection Clause was sufficient to raise the Batson claim. Parker, 836 S.W.2d at 939. Certainly neither the prosecutor nor the trial judge were misled by any lack of specificity in the gender Batson objection. Having asked for relief and objected to the trial court’s handling of the problem, the issue was preserved for appeal. State v. Grim, 854 S.W.2d 403, 416 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993).

As was the case in Parker, supra, this case is remanded to the trial court for a hearing to determine whether the prosecutor used the state’s peremptory strikes to remove members solely on the basis of gender. Upon completion of that hearing, the record of the proceeding shall be certified to this Court.

BENTON, C.J., and PRICE, LIMBAUGH, ROBERTSON, COVINGTON and HOLSTEIN, JJ., and McHENRY, Senior Judge, concur.

White, J., not sitting.

998 S.W.2d 531, decided August 3, 1999

STATE of Missouri, Respondent, v. Vernon BROWN, a/k/a Thomas Turner, Appellant.

No. 73575.

Supreme Court of Missouri, En Banc.

Aug. 3, 1999.

Rehearing Denied Sept. 7, 1999.

Loyce Hamilton, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

[OPINION BY MICHAEL A. WOLFF, Judge. type=majority]

MICHAEL A. WOLFF, Judge.

In 1991, appellant Vernon Brown (also known as Thomas Turner) was convicted of murder in the first degree and sentenced to death. Brown filed a motion for post-conviction relief and the motion was overruled. Brown appealed to this Court. On September 12,1997, this Court issued a per curiam remanding this case to the trial court for “gender-Batson hearing.” State v. Brown, 958 S.W.2d 553 (Mo. banc 1997). On November 23, 1998, the hearing court held a gender-Batson hearing. After hearing, it rejected Brown’s gender-Baf-son challenge. This Court has jurisdiction in Brown’s consolidated appeal. Mo. Const, art. V, section 3. We affirm.

Facts

In 1986, Brown was charged by indictment with murder in the first degree. Brown and his wife, K.M., lived in an apartment at 3435 Washington in the City of St. Louis. Brown worked in that apartment complex as a maintenance worker, and he also worked next door at the Grand Cafe on Washington as a dishwasher. Brown and his wife moved to 4028 Enright after February 13, 1985. A few days later, the victim, Synetta Ford, moved into a basement apartment of the building at 3435 Washington. Ford’s roommate was Aesia Brown.

On February 23 or 24, 1985, Aesia Brown, Synetta Ford, Earl Bedford and Vernon Brown played cards together in Ford’s apartment. Bedford testified that Brown flirted with the victim, Ford, but she appeared not to be interested.

On February 28, 1985, Alesia Brown checked into a hospital for about ten days because she was pregnant. Prior to her admission into the hospital, Alesia had discussed with the appellant the possibility of him working on their apartment rug and vent. Brown went to the victim’s apartment to take up the rug on March 2 nd and 4th, but the victim told him to wait until her roommate, Alesia Brown, came back from the hospital. On March 5, 1985, the victim called her friend, Vickie Noland, she spoke very fast, and she asked Noland to “come get me now.” Ford told Noland that she was afraid because she came home and found Brown on the stairway near the entrance of her apartment. No-land picked Ford up at about 2:35 p.m., and she spent the night with Noland. The last time that Noland saw Ford was when Ford left for work, on the morning shift at Victor Foods, at about 4:30 a.m. the next morning.

Alesia Brown’s brother, Anthony Brown, works with Ford at Victor Foods. Anthony Brown testified that he last saw Ford on Wednesday, March 6, 1985, between 3:30 p.m. and 3:45 p.m. at Victor Foods. He testified that he spent the night with Ford on Tuesday night at her apartment, and she had told him about her encounter with the maintenance person.

On March 7, 1995, at about 10:30 a.m., Brown arrived at the Grand Cafe on Washington and told a chef that he was sick and did not want to work. The chef told him to go home and come back the next day if he felt better.

On March 8, at about 4:00 p.m., Alesia Brown was picked up from the hospital by Earl Bedford. When they arrived at her apartment, which she shared with Ford, she unlocked the front door. When they arrived at the door that led to the apartment, they found out that the door was shattered from the frame. Upon entering the apartment, they observed Ford’s body on the floor with a cord around her neck and a knife in her throat. They ran out and called the police.

After they returned to the front of the apartment building, people, including Brown, began to gather. Brown asked Alesia Brown what happened, and she replied that she found her roommate dead. Brown appeared surprised. Brown was interviewed by the police at the crime scene. Brown told the police that he moved out of the apartment building where the victim lived three weeks earlier, but that he still received mail there. Brown alleged that he stopped by to pick up some mail at about 10:15 a.m. on March 7, and he heard Ford arguing with a Cuban man. Brown gave the police a description of the purported Cuban man.

When Brown arrived home, he told his wife that Ford had been found dead. Initially, his wife was in disbelief. Later, Brown told her that he killed Ford. Brown’s wife testified that Brown told her that he and Ford got into a fight over money and that Ford threatened to tell that they were having an affair. After Ford left the apartment, Brown went inside and hid in the bathroom. After Ford returned and changed into her nightclothes, he came up behind her and wrapped a cord around her neck. According to Brown, they got into a scuffle over a knife, and he took the knife away from the victim and stabbed her in the neck with it. Brown then kicked in the door to make it look like someone broke into the apartment.

Brown was interviewed by the police on March 9, 22, and 26. Brown told his wife that he was tired of the police bothering him about Ford’s murder. On March 28, 1985, Brown packed his clothes and left town. He told his wife to tell the police that he had been abducted by three men, dressed in black and carrying guns, in a red Pinto down the street. On April 1, 1985, Brown’s wife told the police the above story when they came looking for Brown. On April 2, 1985, Brown’s wife told them that the story about the abduction was not true and that she wanted to be a secret witness because she was afraid of Brown. She told the police that Brown told her that he killed Ford and told them how Brown killed Ford.

On April 24, 1985, Brown was arrested pursuant to a warrant, taken to the police station and was given his Miranda rights. Brown told them the abduction story. The police told him that they did not believe him because his wife had told them the truth. About fifteen months later, on October 29, 1986, Brown confessed to the murder of Ford. Brown said that around 10:00 a.m. on March 7, 1985, he left home and headed for his place of work at the Grand Cafe. When he arrived at work he told the cook that he was not feeling well, and the cook told him that he could go home. Instead, Brown went to 3534 Washington. Brown went to the basement. He said that he saw Ford standing in the door way to her apartment and that Ford asked him what he was doing there. Brown replied, “I’m getting a pair of gloves.” According to Brown, as he walked up the stairs, she attacked him with a butcher knife. They began to tussle and ended up in the apartment. As Ford swung the knife at him, she accidentally stabbed herself in the chest. As he tried to leave, she removed the knife from her chest and attacked him the second time. Then, he grabbed an electric curling iron, wrapped its cord around Ford’s neck several times, and tied a knot in the cord. They wrestled, falling to the ground, and in their struggle the victim stabbed herself in the throat with the knife. He got up and left Ford’s apartment. When he reached the top of the steps, he realized that he had left his keys inside Ford’s apartment. Brown kicked in the door, went back inside Ford’s apartment, got his keys, and then left.

The autopsy that was performed indicated that Ford died from strangulation. The autopsy also revealed that Ford was stabbed twice, once in the chest and once in the neck.

Brown raises the following points on appeal.

Juror Conduct and Adequate Hearing

Brown contends that the trial court erred when it overruled his motion for a full and fair hearing to determine whether venirepersons were biased against him and whether juror misconduct had occurred. Brown alleges that a venireperson Kathy H. reported to the court that she had discussed the case with fellow venirepersons, researched Brown’s case during voir dire, overheard a male venireperson advising how to get excused from the jury, and overheard other venirepersons discussing Brown’s guilt or innocence.

The trial court conducted a juror misconduct hearing for the parties to question the venireperson, Kathy H. Brown contends that the trial court conducted inadequate juror misconduct hearings. Brown moved to “quash whatever jurors have been questioned and whatever jurors have been called in this case .... on the grounds that there is juror misconduct going on all over the place.” The trial court overruled the motion, finding Kathy H. not credible. The trial court found that Kathy H. admitted that she lied about the number of people she had contact with. Kathy H.’s story about one “Debbie” was refuted by the record. The trial court did not believe that Kathy H. did not understand that she was not supposed to the discuss the case.

Brown says the trial court erred by not granting him individual questioning of jurors during voir dire. Brown had moved to question the venirepersons from the first group of 75 individually and outside each other’s hearing. Individual questioning was denied, but Brown was allowed to question the venirepersons in panels of six. No venireperson acknowledged that he or she was aware of any misconduct.

Brown further contends that the trial court erred because it failed to recall about 35 venirepersons who were stricken for cause based on their inability to vote for death under any circumstances. He argues that it suggests that Kathy H.’s allegations about the existence of a certain man advising venirepersons as to methods of avoiding juror service are correct.

A trial court’s decisions concerning juror misconduct will not be disturbed unless there is abuse of discretion. State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997). The trial court abuses its discretion when its ruling is clearly against logic of circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. If reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id. at 883-884. The trial court did not abuse its discretion. The trial court found venireperson Kathy H., prime source of the misconduct allegations, incredible and impugned her integrity. State v. Wise, 879 S.W.2d 494, 506 (Mo. banc 1994). The record does not substantially support the assertion that the venire-persons were exposed to improper communications. Brown was not prejudiced by the actions of the trial court.

Brown further alleges that Kathy H. indicated that she and other venireper-sons she had spoken with were confused by whether MAI - CR3d 300.04, which was read to them before each recess, applied to them before they were selected to be on the jury. Brown had submitted a proposed non-MAI instruction, which the trial court denied. MAI - CR3d 300.04 sufficiently addresses the venirepersons. Where an applicable MAI - CR instructions exists, the court is required under Rule 28.02 to submit that instruction. State v. Roberts, 948 S.W.2d 577, 603 (Mo. banc 1997):

The Strikes for Cause

Brown contends that the trial court erred in overruling his motion to strike for cause venirepersons Ann S., John S., and Joan T. Ann S. and John S. did not serve on the jury because Brown used his peremptory strikes on them. Section 494.480.4, RSMo 1994, provides:

The qualifications of a juror on the panel from which peremptory challenges by the defense are made shall not constitute a ground for the granting of a motion for new trial or the reversal of a conviction or sentence unless such juror served upon the jury at the defendant’s trial and participated in the verdict rendered against the defendant.

Brown was tried in 1991. Section 494.480.4 was amended, effective August 28, 1993. Brown contends that this amended provision has not been applied to cases tried before the effective date of the statute and decided on appeal after August 28,1993. Brown’s argument is not persuasive. In State v. Gray, 887 S.W.2d 369, 383 (Mo. banc 1994), this Court stated:

The new statute [section 494.480.4] is procedural in nature and was effective prior to the appeal of this case. Application of the statute does not violate the prohibition against ex post facto laws.... Because the two venireper-sons did not serve as jurors, there is no reversible error.

Furthermore, Brown alleges that Joan T. was not qualified to serve on the jury because her responses were equivocal. Joan T. stated that she would consider the full range of punishment and said that she understood that the state has the burden of proof. Joan T., after hearing that Brown was on death row for the murder of 'Janet Perkins, stated that she would not make a decision until all the evidence was in. Although she stated that she leaned towards the death penalty, she also stated that she could consider life. She indicated that Brown did not have the burden of showing that a life sentence was appropriate, but that she would like for Brown to prove why he should not receive the death penalty. On further questioning, Joan T. said that she understood that Brown did not have to prove anything. The qualification of Joan T. is not determined conclusively by a single response but is made on the basis of the entire examination. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). The trial judge is in the best position to evaluate the venireperson’s commitment to follow the law contained in the instructions. Id. Based on Joan T.’s answers, we conclude that the trial court did not abuse its discretion in overruling Brown’s motion to strike Joan T. for cause.

The Batson Challenges

Prior to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), no reason needed to be given for using a peremptory challenge to a particular member of the venire. Traditional trial preparation often involved lawyers deciding in advance, by factors that included race and gender, what kinds of jurors they wished to eliminate. These factors also include job, age, neighborhood, religion, socio-economic status and other characteristics, in addition to the prospective jurors’ answers to voir dire questioning. Batson prohibited peremptory strikes based on race. In J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court extended the Batson prohibition to strikes based on gender. The Batson doctrine’s unassailable purpose, however, conflicts with the traditional notion and practice of peremptory strikes. The principle is easier to state than to follow. We have a procedure for a trial judge to assess whether race or gender was the real reason for the strike, but ultimately [We] leave to the trial judge, as finder of fact, to discern whether or not race or gender discrimination was involved. The trial court’s determination is a finding of fact that will not be overturned on appeal unless clearly erroneous. State v. Barnett, 980 S.W.2d 297, 302 (Mo. banc 1998)

In Missouri, if the appellant wishes to challenge the state’s peremptory strike, the appellant must first raise the challenge by identifying the cognizable racial or gender group to which the stricken venireperson belongs. State v. Jones, 979 S.W.2d 171, 185 (Mo. bane 1998). The trial court will require the state to give an explanation that is neutral as to race or gender for striking the venireperson. Id. Then, the defendant has the opportunity to show that the proffered reasons are merely pretextual and that the strike is actually based on race or gender. Id. The justification for a peremptory strike need not rise to the level of justification for a challenge for cause. Id.

In many instances, the defense will have no evidence of race or gender discrimination, but may rely on the argument that the prosecutor’s proffered reason is preposterous and, thus, pretextual, or the argument that the prosecutor’s stated reasons are so rife with racial or gender stereotyping as to constitute evidence of discrimination. Or, the defense may argue that African-Americans or women were eliminated by peremptory challenges, where similarly situated whites or males were not. As stated, we rely on the tidal judge’s role as fact-finder, and the judge’s finding will not be overturned on appeal unless clearly erroneous. State v. Brooks, 960 S.W.2d 479, 488 (Mo. banc 1997).

In this case, the Batson challenges based upon race were made and ruled upon at the original trial. While the appeal was pending in this Court, the United States Supreme Court extended Batson to gender bias in the J.E.B. case. When we remanded the case for the trial court to decide the issues as to alleged gender discrimination, the original trial judge had retired and the matter was assigned to a different judge. At the hearing on remand, which occurred about seven years after the original trial, the prosecutor reconstructed from his trial notes the reasons for strikes and articulated neutral reasons for his decisions. The trial judge found no discrimination and, according his findings the deference they are due, we find no error. We review the findings as to race — ruled upon at trial — and gender— heard and ruled upon at the remand hearing. Our analysis follows.

Peremptory Strikes of African-Americans

Brown contends that the trial court erred when it overruled its objections to the prosecutor’s use of its peremptory strike to strike five African-Americans. Brown alleges that the prosecutor pretex-tually struck the African-Americans without a race-neutral reason. After the state’s peremptory strikes were made, Brown unsuccessfully asked the court to quash the jury panel because the strikes were made in a racially discriminatory manner.

Venireperson Charles M.

The state proffered that Charles M. was convicted of a felony charge of passing a bad check and was on probation. In addition, the prosecuting attorney stated that Charles M. “claims he doesn’t even remember that it was my office, the Circuit Attorney’s Office, that prosecuted him and my colleague, Jeff Jamieson, that tried to put him in jail for seven years.” The state also struck Charles M. because he was equivocal during death qualification, in that he stated that he could not impose death and later stated that he could impose death. Brown contends that there are similarly situated white venirepersons who were not struck by the state. According to Brown, venireperson Jeff R., a white male, was currently on probation for a felony. Brown further alleges that venire-person Joan T., a white female, was on probation for two years before the trial, for writing bad checks. In addition, Brown contends that venirepersons Virginia C. and Mary Elizabeth R., white females, were equivocal in their responses but were not struck.

In determining whether the prosecutor struck a venireperson because of his or her race, the trial court looks at the totality of the facts and circumstances surrounding the case. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). The existence of similarly-situated white jurors is probative of pretext under Batson analysis, but it is not dispositive, in determining whether use of peremptory challenges is discriminatory. State v. Nicklasson, 967 S.W.2d 596, 613 (Mo. banc 1998). In this case, the venirepersons that Brown has listed may have one factor or the other in common with Charles M., but none has all the factors that the prosecutor listed against Charles M. Thus, the trial court concluded, they are not really similarly situated, and furthermore, the reasons proffered by the prosecutor are sufficiently race-neutral and nonpretextual. Thus, we defer to the trial court’s ruling denying Brown’s challenge. See State v. Brovm, 902 S.W.2d 278, 284 (Mo. banc 1995).

Venireperson Mamie D.

The state struck Mamie D. because of its concern regarding her unequivocal statement during death qualification that “I prefer life without parole to death.” During questioning Mamie D. indicated that she had a strong preference for life and that she does not care about death. She stated that she “wouldn’t vote for the death penalty unless it was without a shadow of doubt.” Later, after hearing that Brown was on death row for the murder of Janet Perkins, she stated that she would want death if it were her daughter.

The Constitution requires that the defendant be afforded an impartial trial. State v. Nicklasson, 967 S.W.2d 596, 610 (Mo. banc 1998). A potential juror is not impartial if the juror will automatically vote for the imposition of the death penalty without regard to evidence or legal instructions. Id. Conversely, a juror is not impartial if the juror will automatically vote for the imposition of life without regard to evidence or legal instruction. If the potential jurors’ views would prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths, the jurors are not impartial. Id. Mamie D.’s responses to the imposition of sentence without regard to the evidence is a sufficient race-neutral reason for the trial court to deny Brown’s challenge.

Venireperson Willie Mae R.

The prosecutor struck Willie Mae R. because of the following:

[THE PROSECUTOR]: Your Honor, regarding Juror No. 162, Mrs. Willie Mae [R.], Miss [R.], again, I struck because of her feelings about the death penalty. I moved - I originally recorded that she said unequivocally that she would not impose the death penalty. She was rehabilitated by Ms. Kraft. She was left on the jury despite my protestation that she should be removed. I have that when Ms. Kraft questioned her about the death penalty Miss [R.] responded quote “Not now, I don’t think I could” and then she stopped talking and when I asked her what she meant when she said quote “Not now, I don’t think I could” unquote she responded that she was talking about the death penalty and then after a great deal of extreme confusion in which Miss [R.] came down on all sides of the issue she finally very angrily insisted that ‘Well, I guess I could consider it, you know, you’re confusing me but I guess I could” I believe were her words.

THE COURT: Karen, do you have any comment?

[DEFENSE COUNSEL]: No, Judge.

THE COURT: Very well. Let the record show that the Court finds beyond a reasonable doubt that the striking of by the State of Willie Mae [R.] was done on a racially neutral basis and therefore did not violate the precepts of Batson v. Kentucky.

On a Batson challenge, the state’s reasons for strike need only be facially race-neutral unless discriminatory intent is inherent within the explanation. State v. Brooks, 960 S.W.2d 479, 488 (Mo. banc 1997). The explanation will be deemed race-neutral, even if it is not persuasive. Id. When faced with a Batson challenge, the state must present a reasonably specific and clear race-neutral explanation for the peremptory strike. State v. Morrow, 968 S.W.2d 100, 113 (Mo. banc 1998). If the state does this, then it is the defendant’s burden to show that the state’s reasons were pretextual and that strikes were racially motivated. Id. Here, the state presented its reason for striking Willie Mae R., and Brown did not bear his burden by rebutting the explanation.

Alternate Venireperson Marvin B.

The prosecutor stated that Marvin B. was struck because of his attitude. According to the prosecutor, Marvin B. did not pay attention, he made goofy faces, he showed an inappropriate amount of levity, and he did not seem to take the whole proceedings with much seriousness. Even the court noted:

THE COURT: Well, let me say this, I guess in Batson v. Kentucky the Court is allowed to make observations of prospective jurors and I did notice Mr. Brown. He did display a lackadaisical attitude throughout the questioning of the jury panel, one that showed an attitude that showed complete indifference to the dignity and the seriousness of the matter under consideration by the Court.

I did not feel that it would be proper for the Court to dismiss the juror but I could certainly see as a trial lawyer that I wouldn’t particularly care to have such a person on my jury so I find beyond a reasonable doubt and without qualifications and within my own perspective and viewpoint or view, rather, that neutrally racial considerations were adhered in the striking of Mr. Brown.

Inattentiveness has been considered a racially-neutral reason for exercising a peremptory challenge. State v.' Antwine, 743 S.W.2d 51, 67 (Mo. banc 1987); State v. White, 913 S.W.2d 435, 437 (Mo.App.1996).

Peremptory Strikes of Women

Brown contends that the trial court erred when it overruled his objections to the state’s use of ten of its twelve peremptory strikes to strike women from the jury panel, in failing to allow a hearing to determine if the state discriminated against women in the use of its peremptory strikes, and in failing to require the state to give gender neutral reasons for the strikes. There were seven females and five males that sat on the jury that convicted Brown. As noted, prior to issuing an opinion on the other briefed issues, this Court remanded Brown’s appeal to the Circuit City of St. Louis City for a gender Batson hearing. State v. Brown, supra, 958 S.W.2d 553. After the remand, Brown challenged the state’s use of five peremptory challenges against females. The hearing court denied Brown’s challenges. We uphold the hearing court’s conclusions.

Venireperson Joanne J.

The prosecutor stated that he struck Joanne J. because she stated that she thought that life without parole was worse than the death penalty. Brown objected claiming that a male juror, Jeff R., had stated that he thought that life without parole was as bad as the death penalty. The trial court found that Jeff R. was not similarly situated to Joanne J. in that then-statements showed that they had different values. While the existence of similarly situated male jurors who were not struck is some proof of pretext, it is not disposi-tive. State v. Barnett, 980 S.W.2d 297, 302 (Mo. banc 1998). The above reason is sufficiently gender-neutral and nonpretex-tual, and we defer to the hearing court ruling. See State v. Jones, 979 S.W.2d 171,184 (Mo. banc 1998).

Venireperson Mary Patricia M.

The initial reason given by the prosecutor for striking Mary .Patricia M. was that he did not like her attitude toward the death penalty because she had indicated that she leaned towards life. When Mary Patricia M. was asked whether she could consider a life sentence, she emphasized that she could without a doubt. Brown objected and indicated that there was nothing in the record to show that Mary Patricia M. said anything about leaning towards life. Then, the prosecutor stated that his second reason is because of Mary Patricia M.’s occupation. The prosecutor stated:

Ms. [Mary Patricia M.’s] listed her occupation as health educator; in response to a question at the time of voir dire said she had been in community education for five years. As a general rule, as a prosecutor now for 15 years I have always thought that those who were in helping, caring professions such as people who work for the department of social services or in some similar capacity are frequently not good bets as prosecution venirepersons. So part of my reason for striking Ms. [Mary Patricia M.] related to her occupation as well as what I perceived as her inclination against the death penalty.

Peremptory strike of a venireperson because of employment has been held to be acceptable. See State v. Jones, 979 S.W.2d 171, 185 (Mo. banc 1998). The reason is sufficiently gender-neutral as to support the denial of Brown’s challenge.

Venireperson Mamie D.

At the remand hearing, the prosecutor stated the following as his reasons for striking Mamie D.:

I had again multiple reasons for striking Ms. [Mamie D.], but the first that caught my eye was that she said during voir dire that her brother had been arrested on a drug case, that he was in and out of court on quite a few occasions and this was what I thought was conclusive. She said that she went to court with him when he was being prosecuted on a drug crime, I believe here in the Circuit that includes the City of St. Louis. According to my notes, she indicated at least to me that she had a preference for life without parole as opposed to death. Those are the reasons that I struck Ms. [Mamie D.].

Brown responded by alleging that there were other male venirepersons who were not struck, but were similarly situated. The hearing court found that the state has articulated sufficient gender-neutral reasons for peremptory challenge of Mamie D. We find that the trial court did not clearly err in rejecting Brown’s challenge. See State v. Brooks, 960 S.W.2d 479, 488 (Mo. banc 1997).

Venireperson Leslie W.

The prosecutor struck Leslie W. because of her occupation and her husband’s occupation. Leslie W. and her husband are artists. The prosecutor thought that she impressed him as a person with an artistic temperament. Leslie W. also was a telemarketer and telemarketers, according the prosecutor, are inclined to have many abrasive contacts with the criminal justice system or they know someone who has. In addition, the prosecutor stated that she was shaky on the death penalty. Peremptory strikes can be based on occupation, so long as they are race and gender-neutral. See State v. Jones, 979 S.W.2d 171, 185 (Mo. banc 1998); State v. Morrow, 968 S.W.2d 100, 114 (Mo. banc 1998); State v. Nicklasson, 967 S.W.2d 596, 614 (Mo. banc 1998). The reasons proposed by the prosecutor are sufficiently gender-neutral to support the trial court’s ruling against Brown’s challenge.

Venireperson Kathleen P.

The prosecutor stated the following reason for striking Kathleen P.:

YOUR HONOR, concerning Venireperson Kathleen [PJ, Juror No. 170,1 earlier observed of this juror, I believe in the context of Batson race neutral hearing, that I thought her attitude was inappropriately casual and lackadaisical. In that when asked about the death penalty, according to my notes and recollection, she first said, well, if a defendant poses any danger, then the death penalty might be what he deserves, which is a qualification I wasn’t comfortable with because almost by definition if somebody is going to be in prison for life without parole, they no longer constitute a danger.

And the first thing I recall her saying about that was that if someone constitutes a danger, that might be what he deserves. And then when Ms. Kraft asked could you consider life without parole, she said she thought that might be appropriate, quote-unquote.

Her attitude of casually flipping back and forth as if life or death were not a matter of great concern for her as to which was chosen caused me to think that she didn’t regard the proceedings with the appropriate seriousness. I felt that she was flaky and that her responses were not credible. And since the prosecution must get all twelve, I didn’t want someone who seemed to be eccentric and overly casual on the jury, and that was my reason for striking this potential alternate juror, Kathleen [PJ, your honor.

Inattentiveness, demeanor and attitude are proper gender-neutral explanations. State v. Antwine, 743 S.W.2d 51, 67 (Mo. banc 1987); State v. White, 913 S.W.2d 435, 437 (Mo.App.1996).

Individual Voir Dire and Sequestration of Venirepersons

Brown contends that the trial court erred by overruling his motion to grant individual voir dire and sequestration of the jury during voir dire because of the extensive publicity about his conviction and sentence of the murder of Janet Perkins. State v. Brown, 902 S.W.2d 278 (Mo. banc 1995). The control of voir dire is within the discretion of the trial court; only abuse of discretion and likely injury will justify reversal. State v. Chambers, 891 S.W.2d 93, 102 (Mo. banc 1994). A defendant is not automatically entitled to individual voir dire in death penalty cases, and it is left to the trial judge to deal with problems of pretrial publicity. State v. Smulls, 935 S.W.2d 9, 19 (Mo. banc 1996); State v. Weaver, 912 S.W.2d 499, 522 (Mo. banc 1995). In this case, the venirepersons during voir dire were asked whether they had heard about anything in the media about the appellant. The venirepersons who had heard about Brown were individually questioned at the bench out of the hearing of the other venirepersons. The trial court’s conduct was appropriate as to those prospective jurors who had been exposed to media coverage about Brown. Thus, we find no abuse of discretion or any injury from the actual voir dire. In the circumstances of this case, refusal of sequestration of venirepersons was not error. See State v. Johns, 679 S.W.2d 253, 265 (Mo. banc 1984).

Whether Victim’s Statements Were Hearsay

Brown contends that the trial court erred by overruling his objection to the testimony of Vickie Noland and Anthony Brown concerning statements made by Ford because those statements were inadmissible hearsay. Noland testified that on March 5, 1985, Ford had called her and asked Noland to come and pick her up. Noland testified that Ford was speaking very fast and told her that she was afraid of Brown because she came home and found Brown on the stairway right before the entrance of her apartment. Anthony Brown also testified that Ford had told him on March 5, 1985, that she was afraid of defendant Vernon Brown because Brown had been in a place close to her apartment where he was not supposed to be.

Out-of-court statements offered to prove knowledge or state of mind of the declarant are not hearsay. State v. Basile, 942 S.W.2d 342, 357 (Mo. banc 1997). Such statements are admissible if relevant. State v. Bell, 950 S.W.2d 482, 483 (Mo. banc 1997). The state offered this testimony to show Ford’s state of mind regarding her fears about Brown and not to show the truth of the matter being asserted. The hearsay declarations of a victim’s state of mind are particularly relevant where the defendant has put the victim’s mental state at issue by claiming accident, self-defense or suicide. State v. Shwm, 866 S.W.2d 447, 458 (Mo. banc 1993). In this case the testimony’s probative value also outweighs its prejudicial effect. Brown confessed that Ford allegedly attacked him and accidentally stabbed herself in the chest and in the neck. Thus, the trial court did not err in admitting the testimony.

Right to Counsel and Confession

Brown contends that the trial court erred in denying his motion to suppress statements he made about the murder of Synetta Ford in the guilt phase and the murder of Janet Perkins in the penalty phase. He alleges that the statements were obtained in violation of his constitutional rights in that the state questioned him without contacting his attorney and that his confession was not voluntary, intelligent and knowing because he was high on drugs.

Brown made the same argument in State v. Brown, 902 S.W.2d 278, 291 (Mo. banc 1995), where he contended, among other things, that the trial court erred in admitting his confession to the murder of Synetta Ford because the police illegally obtained the confession about Ford’s killing by interrogating him without the presence of his attorney. Id. The Court rejected his claim. Id. However, Brown respectfully requests that this Court reconsider its holding in that ease with respect to this issue. Brown has previously litigated the validity and admissibility of his confession, and we see no need to revisit the issue.

Because the confession to the killing of Synetta Ford is the basis for this conviction and death penalty, we will, however, consider whether his confessions and waivers of his rights were involuntary, unintelligent or unknowing because he was under the influence of drugs or alcohol. Brown alleges that his defense attorney, who interviewed him on October 29, 1986, had difficulty interviewing him because of his drug intoxication. However, the record indicates that Brown was repeatedly informed of his Miranda right before his confessions. He repeatedly asserted that he understood his rights and signed written waivers of his rights. Toward the end of his confession, he said that he was not under the influence of drugs or alcohol.

The defendant’s physical and mental condition is not the critical question in determining if defendant’s statements were voluntary. State v. Schnick, 819 S.W.2d 330, 337 (Mo. banc 1991). The deficient mental condition of a defendant, “whether manifested by delusional behavior or a positive drug test,” State v. Bucklew, 973 S.W.2d 83, 90 (Mo. banc 1998), does not by itself render a confession involuntary, “as there is no constitutional right to confess, only when totally rational and properly motivated.” State v. Lyons, 951 S.W.2d 584, 590 (Mo. banc 1997). “If one is informed of his right to remain silent under Miranda, and understands his right to remain silent under Miranda, and thereafter makes voluntary statements, it is absurd to say that such person has not made a knowing and intelligent waiver of his right to remain silent.” State v. Buck-lew, 973 S.W.2d 83, 90 (Mo. banc 1998). The record sufficiently supports the trial court ruling.

Use of Alias

Brown argues that the trial court erred by allowing witnesses to refer to him by the name “Thomas Turner.” Brown contends that the use of his alias was evidence of other crimes or bad acts and was presented for the sole purpose of painting him as a deceitful, shady character who may be guilty of other crimes not mentioned in this case. The record indicates that the witnesses referred to Brown as Thomas Turner because that was the name he used in St. Louis and that was the name by which they knew him. Even Brown’s wife knew him as Thomas Turner and did not know that his name was Vernon Brown.

The use of an alias does not constitute clear evidence associating defendant with other crimes. State v. Morrow, 968 S.W.2d 100, 111 (Mo. banc 1998). See also State v. Brown, 902 S.W.2d 278, 287 (Mo. banc 1995). Unless the testimony objected to consists of clear evidence of another crime, there is no trial court abuse of discretion in denying a mistrial. State v. Simmons, 955 S.W.2d 729, 737 (Mo. banc 1997). Since the witnesses referred to Brown as Thomas Turner, the record does not support the contention that it was for the purpose of proving that Brown committed other crimes. Witnesses who knew him as Thomas Turner referred to him as such. The trial court did not abuse its discretion.

Burden of Proof

Brown alleges that the state shifted the burden of proof to him when it argued as follows in its rebuttal argument:

Here is the evidence that Ms. Kraft introduced. She called exactly two witnesses. She called Danny Blue who testified that on Friday morning, at least I make it fourteen hours after Synetta Ford had already gone to a much better place than that apartment in the basement, fourteen hours after that poor girl was dead and decomposing he saw some man ring all the doorbells at the apartment and act crazy.

Well, you heard it. I don’t know what significance you’re supposed to draw from the fact that fourteen hours after she was dead someone was ringing the doorbells and acting crazy but that was the State’s first - the defense first witness. The only other piece of evidence that Ms. Kraft introduced to you during her entire case was the testimony of this man’s first lawyer, Jeff Childress, and you heard that Saturday morning. You may evaluate it for what it was worth.

Mr. Childress said “I went over there in May of 1985 to my client’s house and I talked to K.M. and I told her that your husband is going to be released soon, I just want to confirm you don’t want to prosecute, do you?” And she said “Why, you know, as a matter of fact I don’t, I certainly don’t”. Now, that’s the entire defense case, Danny Blue who saw some events that occurred twelve hours after the poor woman was dead and Jeff Childress, I would argue based on what you heard one of the least most unreliable witnesses to testify in this trial, his presentation speaks for itself.

Brown argues that these comments shifted the burden of proof and were designed to point out that he presented evidence to disprove the crime charged.

The state does not improperly shift the burden of proof to defendant by referring to a defendant’s failure to offer evidence, so long as the state makes no reference to defendant’s failure to testify. State v. Chaney, 967 S.W.2d 47, 56 (Mo. banc 1998). See also State v. Simmons, 955 S.W.2d 764 (Mo. banc 1997) (prosecutor’s comment during guilt phase closing argument in capital murder case that testimony of defense witnesses “didn’t carry burden of any kind of persuasion here” did not impermissibly shift burden of proof to defendant). The trial court did not abuse its discretion by overruling the objection to the above comments.

Impeachment Testimonies

Brown argues that the trial court erred when it overruled his motion to present testimony of Patty Scherzinger, a registered nurse at Cardinal Glennon Hospital, and Robert Gerald Clark, a chief protective investigator from the State of Illinois, to impeach the credibility of Brown’s stepchildren C.M., J.M. and T.J. The stepchildren testified that Brown sexually abused them. Brown alleges that Scherzinger and Clark should have been allowed to testify to statements that the stepchildren made to them about being (or not being) sexually abused by their mother, K.M. The trial court reasoned that the evidence went to a collateral matter and, therefore, sustained the state’s objection to introducing the evidence. The trial court did not err in preventing this collateral issue from being litigated. See State v. Thomas, 965 S.W.2d 396, 401 (Mo. App.1998) (trial court did not commit plain error in preventing impeachment of prosecution witness on collateral issue on whether she lied when police first questioned her about staged robbery at restaurant).

Mistrial

Brown contends that the trial court erred when it overruled his motion for mistrial after some of the jurors’ hotel rooms were burglarized. Four jurors’ hotel rooms were burglarized, and they lost a total of $63.00 in cash, some socks and a bag of snacks. The hotel immediately reimbursed the jurors and fired the persons who were believed to be responsible. Brown moved for mistrial because the jurors had been victimized. The trial court overruled his motion. Mistrial is a drastic remedy reserved for the most extraordinary circumstances, and the decision whether to grant a mistrial is left to the sound discretion of the trial court. State v. Barnett, 980 S.W.2d 297, 305 (Mo. banc 1998). The jurors were immediately fully compensated for their losses. There was no apparent indication that the jurors were biased against Brown because other individuals burglarized their hotel rooms. The trial court did not err in overruling Brown’s motion for mistrial because no circumstances existed warranting a mistrial.

Expert Hearsay Testimony in Penalty Phase

Brown claims that the trial court abused its discretion when it sustained the state’s objections to the testimony of Jill Miller, a forensic social worker, regarding statements that he made to her. Brown alleges that his expert, Miller, was precluded from presenting essential mitigating evidence to assist the jury in its determination of punishment.

Expert testimony should be excluded if it does not assist the jury or if it unnecessarily diverts the jury’s attention. State v. Lawhom, 762 S.W.2d 820, 823 (Mo. banc 1988). Admission of expert testimony is within the discretion of the trial court. State v. Skillicom, 944 S.W.2d 877, 891 (Mo. banc 1997). Generally, an expert may rely on hearsay evidence as support for opinions, as long as that evidence is of a type reasonably relied upon by other experts in the field; such evidence need not be independently admissible. State v. Kelley, 945 S.W.2d 611, 615 (Mo.App.1997).

Miller was asked to investigate Brown’s background. While she was testifying as to what she found, the state objected to some of the reports. The state objected to Miller testifying that Brown had a head injury as a child, that he had headaches, and that he was sexually abused when he was five years old, on the ground that the statements were hearsay. The trial court sustained the objection. The state argues that Miller was called to testify about what people had told her and about other things that she had read, so that Brown would not have to call those persons and subject them to cross-examination or lay foundations for admission of records. In addition, the state contends that Brown should not be allowed to testify through Miller and avoid cross-examination because Miller’s recitation of Brown’s statements were unrelated to any admissible opinion of Miller. Brown could have presented the same evidence to the jury without having an expert present it for him. Had the evidence been a basis for the expert’s opinions, we would find such evidence admissible. But in the circumstances here, the trial court had discretion not to allow such testimony. We find no abuse of discretion by the trial court in excluding the evidence in its proffered form.

Mitigating Evidence from Unavailable Witness

Brown contends that the trial court abused its discretion in the penalty phase when it refused to allow his counsel to read into evidence a letter about him that was written by his brother, Darius Turner. Turner was stationed in Saudi Arabia during the Operation Desert Shield as a member of the United States Army at the time of trial. The state objected to the introduction of the letter because the letter is inadmissible hearsay that was unreliable.- Brown alleges that the letter should have been read into evidence pursuant to State v. Phillips, 940 S.W.2d 512, 517-518 (Mo. banc 1997), and Green v. Georgia^ 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). The determination of reliability is left to the trial court judge who was uncertain as to the authenticity of the letter. We uphold his ruling and note that even if he was wrong about the letter’s reliability, its exclusion does not in the context of this case seem prejudicial.

Ineffective Assistance of Counsel

Brown contends that the Rule 29.15 motion court erred when it overruled his post-conviction motion because his trial counsel was ineffective. Brown alleges that trial counsel was ineffective for (1) failing to establish a “rapport” with him and (2) informing the venirepersons during voir dire about his conviction and death sentence for the murder of Janet Perkins. The Court will review the motion court’s overruling of a post-conviction relief motion only to determine whether the findings and conclusions are clearly erroneous. Sams v. State, 980 S.W.2d 294, 296 (Mo. banc 1998). The motion court’s findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made. Id. Appellant’s trial counsel is constitutionally ineffective if counsel’s performance fell below the degree of skill, care and diligence of a reasonably competent attorney and the defendant was prejudiced by the defective performance. Id.

“Rapport” with Brown

Brown alleges that his trial attorneys were ineffective because they did not establish a rapport with him. Had his defense attorneys established a rapport with him, Brown says, they could have encouraged him to be evaluated and, thus, obtained expert testimony in the penalty phase. The record indicates that Brown’s main counsel was the head of the public defender’s capital litigation unit and one of the most experienced attorneys in the unit. Brown’s main counsel repeatedly met with him, she met with Brown’s friends, and she made two trips to Indiana to meet with Brown’s family members. Brown’s counsel attempted to get Brown to cooperate with mental experts, but Brown refused. The record sufficiently supports the motion court ruling that Brown’s counsel acted reasonably and was competent.

Information About Brown’s Conviction for the Murder of Janet Perkins

Brown alleges that his trial counsel was ineffective because, during voir dire, she informed venirepersons that he had been convicted and sentenced to death for the death of Janet Perkins. Brown argues that the disclosure was not a part of any “reasonable” trial strategy but operated to convince the jury that he was guilty of the present crime and would have been reversible error had this evidence been adduced by the State. Brown further alleges that “the prejudicial effects of trial counsel’s disclosure could not be overcome when it was coupled with the cumulative errors that occurred throughout the trial.”

The motion court found that this was a matter of trial strategy. Defense counsel disclosed Brown’s other murder conviction to make sure that the venirepersons would not automatically impose the death penalty when they found out about it. Also, at the postconviction hearing, Brown’s counsel testified that she disclosed the murder conviction, because her strategy in the guilt phase of Brown’s trial involved the use of his confession to the murder of Janet Perkins to try to explain and discredit Brown’s confession to the murder of Synetta Ford. She informed Brown of her strategy and he did not object. It is not ineffective assistance of counsel to make a reasonable trial strategy decision. Sams v. State, 980 S.W.2d 294, 296 (Mo. banc 1998). The motion court did not err in finding that Brown’s counsel was not ineffective.

Nonstatutory Mitigating Circumstances Instruction

Brown argues that the trial court erred when it refused to submit his proposed Instruction A, a non-MAI instruction. Brown contends that “it is fundamentally unfair to allow the state to list nonstatutory aggravating circumstances, MAI-CR3d313.41, and to refuse to allow the defense to list nonstatutory mitigating circumstances.” The statute in effect at the time of Brown’s trial provides:

1. In all cases of murder in the first degree for which the death penalty is authorized, the judge in a jury-waived trial shall consider, or he shall include in his instructions to the jury for it to consider:

(1) Any of the statutory aggravating circumstances enumerated in subsection 2 of this section which are requested by the state and supported by the evidence;

(2) Any of the statutory mitigating circumstances enumerated in subsection 3 of this section which are requested by the defendant and supported by the evidence;

(3) Any mitigating or aggravating circumstances otherwise authorized by law and supported by the evidence and requested by a party including any aspect of the defendant’s character, the record of any prior criminal convictions, and pleas and findings of guilty and admissions of guilt of any crime or pleas of nolo contendere of the defendant;

(4) All evidence received during the first stage of the trial.

Section 565.032, RSMo 1986.

This section, as amended in 1993, partially provides: “if the trier is a jury, it shall not be instructed upon any specific evidence which may be in aggravation or mitigation of punishment, but shall be instructed that each juror shall consider any evidence which he considers to be aggravating or mitigating.” While the new section prohibits instructing the jury on nonstatutory aggravating or mitigating circumstances, the old section did not categorically prohibit instructing the jury on nonstatutory aggravating or mitigating circumstances. Nevertheless, prior to the 1993 amendment, this Court required the trial courts not to list nonstatutory mitigating circumstances in the instruction. State v. Copeland, 928 S.W.2d 828, 854 (Mo. banc 1996); State v. Wise, 879 S.W.2d 494, 518 (Mo. banc 1994); State v. Whitfield, 837 S.W.2d 503, 514 (Mo. banc 1992); and State v. Wacaser, 794 S.W.2d 190, 195 (Mo. banc 1990). In State v. Wacaser, supra, this Court stated:

There is no requirement that the instructions list nonstatutory mitigating circumstances. The court on retrial should not list any nonstatutory mitigating circumstances in the instructions, because the inclusion of some might lead the jury to believe that it may not consider others. The defendant is not confined by the instructions as to the evidence and argument which may be presented in mitigation.

Thus, the trial court did not err in excluding Brown’s proposed non-MAI instruction.

Aggravating Circumstance

Brown argues that the trial court erred when it failed to strike aggravating circumstance A submitted by the state. The aggravating circumstance was that the murder was committed by a person with a serious assaultive criminal conviction. Brown contends that the state failed to prove that the “conviction was seriously assaultive.” Brown admits that the Court rejected his argument in State v. Brown, 902 S.W.2d 278, 293-294 (Mo. banc 1995), but he respectfully requests the Court to reconsider its opinion. Brown was convicted of assault and battery with intent to gratify sexual desires in 1973, in Indiana. In State v. Kinder, 942 S.W.2d 313, 332 (Mo. banc 1996), this Court reaffirmed its decision in State v. Brown, supra, and stated: “The proper line between serious assaultive offenses and other assaultive offenses is the line between felonies and misdemeanors. The former are serious assaultive offenses and the latter are not.” The trial court did not err in overruling Brown’s objection.

Proportionality Review

Brown contends that his death sentence is disproportionate under section 565.035, RSMo 1994, and that this Court’s application violates his constitutional rights. Brown alleges that Missouri’s death penalty scheme is unconstitutional because prosecutors have discretion in seeking the death penalty, no legitimate governmental interest exists for the death penalty, and the database is inadequate. These allegations have been repeatedly rejected by this Court. State v. Barnett, 980 S.W.2d 297, 309 (Mo. banc 1998); State v. Jones, 979 S.W.2d 171, 186 (Mo. banc 1998); and State v. Basile, 942 S.W.2d 342, 361 (Mo. banc 1997).

Guilt-phase and Penalty-phase Instructions

Brown contends that the trial court erred when it submitted to the jury guilt-phase Instruction 4 and penalty-phase Instruction 3 because those instructions improperly defined “beyond a reasonable doubt.” Brown alleges that the “firmly convinced” language in those instructions suggests a higher degree of doubt than is constitutionally required. This Court has repeatedly rejected this claim because “the phrase ‘firmly convinced’ is essentially synonymous with the phrase ‘beyond a reasonable doubt.’ ” State v. Barnett, 980 S.W.2d 297, 305 (Mo. banc 1998).

Independent Review Under Section 565.035.3

This Court is required to review the sentence of death under section 565.035.3, RSMo 1994. The statute provides that:

3. With regard to the sentence, the [S]upreme [C]ourt shall determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and

(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in subsection 2 of section 565.032 and any other circumstance found;

(3)Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence and the defendant.

Id.

The record does not indicate that the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. The evidence presented in this case sufficiently supports the jury’s finding of two statutory aggravating circumstances. The jury determined that Brown was convicted of assault and battery with intent to gratify sexual desires on June 28, 1973, in the Criminal Court of Marion County of Indiana. Moreover, the jury determined that the murder of Synet-ta Ford involved torture and depravity of mind. The jury was instructed in specific terms on finding depravity of mind:

“You can make a determination of depravity of mind only if you find that defendant committed repeated and excessive acts of physical abuse upon Syn-etta Ford and the killing was therefore unreasonably brutal.”

The record indicates that Brown invaded Ford’s apartment and brutally murdered her by strangling her to death with an electrical cord and stabbing her in the chest and neck with a large butcher knife.

Finally, the sentence in this case was not excessive or disproportionate to the penalty imposed in similar cases, considering the crime, the strength of the evidence and the defendant. This case is similar to other cases in which the death penalty was imposed. A sentence of death has often been imposed when the murder involved acts of brutality and abuse that showed depravity of mind. See, e.g., State v. Barnett, 980 S.W.2d 297, 310 (Mo. banc 1998); State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996); State v. Tokar, 918 S.W.2d 753 (Mo. banc 1996). Also, the Court has upheld death sentences where the defendants who were sentenced to death had prior murder convictions. See, e.g., State v. Wise, 879 S.W.2d 494, 525 (Mo. banc 1994); State v. Pollard, 735 S.W.2d 345, 349-350 (Mo. banc 1987); and State v. Guinan, 732 S.W.2d 174, 178 (Mo. banc 1987). The evidence of Brown’s guilt is very strong.

Conclusion

For all of the foregoing reasons, the judgments are affirmed.

PRICE, C.J., LIMBAUGH, COVINGTON, HOLSTEIN, and BENTON, JJ., and McHENRY, Special Judge, concur.

WHITE J., not participating.

NOTES TO THE OPINION

There appears to be a conflict between Vickie Noland's and Anthony Brown's testimonies regarding who spent the night with the victim. However, this discrepancy does not appear to have affected the outcome of the trial.

All statutory references are to RSMo 1994, unless otherwise indicated.

In Clarence Darrow's 1936 essay on selecting a jury, reprinted in Jeans, Trial Advocacy, 2d. Edition, (West 1993) pp. 275-280, the comparative merits of jurors of various characteristics are compared, and D arrow concludes that women jurors "were absolutely dependable, but I did not want them.” Id. at 280.

344 F.3d 770, decided September 19, 2003

Vernon BROWN, Appellant, v. Allen D. LUEBBERS, Appellee.

No. 02-1845EM.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2003.

Filed: Sept. 19, 2003.

John W. Simon, argued, Clayton, MO (Richard H. Sindel, Clayton, MO, on the brief), for appellant.

Stephen D. Hawke, argued, Asst. Atty. Gen., Jefferson City, MO, for appellee.

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.

[OPINION BY RICHARD S. ARNOLD, Circuit Judge. type=majority]

RICHARD S. ARNOLD, Circuit Judge.

Vernon Brown appeals from the decision of the District Court denying his 28 U.S.C. § 2254 (2000) petition for a writ of habeas corpus. We affirm in part and reverse in part.

In 1991, a jury convicted Brown of first-degree murder in the 1985 strangulation death of Synetta Ford in St. Louis, Missouri, and he was sentenced to be executed. His motion for state post-conviction relief filed pursuant to Missouri Supreme Court Rule 29.15 was overruled. That decision, as well as Brown’s conviction and sentence, were affirmed in a consolidated appeal taken to the Missouri Supreme Court. State v. Brown, 998 S.W.2d 531(Mo.) (en banc), cert. denied, 528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337 (1999).

In 2000, Brown filed in the District Court a petition for a writ of habeas corpus, raising thirty-one grounds for relief. The District Court denied Brown’s petition but granted a certificate of appealability on eleven grounds. Brown has combined the arguments on some of his claims and presents eight issues on appeal.

First, combining his original habeas grounds 13 and 27, Brown takes issue with the comment in boldface below, made by the prosecutor in his closing statement when he was speaking of conversations Brown had with his wife, K.M., and with investigators prior to his indictment for Ford’s murder:

Now, is the story that he told K.M. strange and other worldly? Is the story that he told the police strange and other worldly? You bet. This is a strange, strange man. He’s not going to testify, not going to tell a story like a normal individual. You have heard uncontested testimony from Ms. Kraft in her questioning of Sergeant Roussin that this man not only confessed to the murder of a nine year old child, a little girl named Janet Perkins, but as Ms. Kraft pointed out in questioning Sergeant Roussin, he told the police where to find Janet Perkins’ belongings.

The point I’m trying to make is not that his statement about Janet Perkins is necessarily — that his statement about the murder of Janet Perkins is evidence of his guilt in this case, it is not, but it is a strange, strange man, ladies and gentlemen, that would kill a nine year old girl and tell the police where to find that child, that dead child’s belongings. I would submit to you, ladies and gentlemen, that both of the strange stories he told to his wife and to the police on videotape are consistent with a very, very strange human being.

Trial Transcript at 2181-82 (emphasis added). Trial counsel did not object, nor did the trial court act sua sponte to declare a mistrial, as Brown suggests it should have. Moreover, his Rule 29.15 counsel did not properly present a claim that trial counsel was ineffective for failing to object to the prosecutor’s remark.

Brown claims that the prosecutor was commenting upon Brown’s exercise of his constitutional right not to testify (and not to have it noted in the presence of the jury), that trial counsel was ineffective for failing to object, and that as a consequence, his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated. The State (represented in this case by warden Allen D. Luebbers) contends that these claims are procedurally barred from consideration in a § 2254 proceeding, and the District Court so held. We review de novo. Frasier v. Maschner, 304 F.3d 815, 817 (8th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 1758, 155 L.Ed.2d 520 (2003).

A claim raised in a § 2254 petition will not be deemed procedurally defaulted unless the petitioner has been provided a “firmly established and regularly followed state practice” by which to have his federal constitutional claims considered in state court. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). As we understand Brown’s position, he is arguing that the state practice is inadequate to foreclose § 2254 consideration of his claim. Because his trial counsel failed to object to the prosecutor’s statement as an unconstitutional comment upon his right not to testify, that claim could be considered by the state courts only indirectly, in post-conviction proceedings raising the constitutional ineffectiveness of counsel — that is, objectively deficient performance by counsel and, as a result, actual prejudice that deprived Brown of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, as Brown concedes, post-conviction counsel raised the issue of ineffectiveness in the Rule 29.15 proceedings but did not allege the necessary prejudice from trial counsel’s failure to lodge an objection to the comment. As a consequence, the Rule 29.15 court held that the claim was not cognizable in the state post-conviction proceedings. Thus, according to Brown, “there was nothing for the petitioner to appeal concerning it to the state supreme court.” Br. of Appellant at 42. By Brown’s reckoning, the Rule 29.15 court’s holding that his claim was not cognizable is an admission that the state affords him no remedy for his claimed violation of rights.

We disagree not only with Brown’s characterization of what took place in the Rule 29.15 proceedings, but also with his reasoning. The Missouri state courts do, in fact, provide procedures by which constitutional questions such as those at issue here can be addressed in the first instance by the state courts. Brown’s problem is that he did not avail himself of the procedures that were in place: trial counsel did not object to the comment, and post-conviction counsel did not properly allege trial counsel’s ineffectiveness. These are substantive, well-established procedures that Brown was required to follow in order to have his claims considered post-trial and not, as Brown argues, merely “formal ‘ritual ... [that] would further no perceivable state interest.’ ” Lee v. Kemna, 534 U.S. 362, 366, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (alteration in original) (citations to quoted cases omitted) (holding that a due process claim was not procedurally defaulted where the state argued that the default was the result of trial counsel’s failure to follow that portion of a court rule that called for a written motion from a party seeking a trial continuance). If we were to hold that Brown’s failure to raise his claim in state court was in reality a failure of the state procedure, it is hard to imagine a situation where a federal court could hold that a claim was procedurally defaulted. Such a holding would therefore foil the intent of Congress to further the interests of federalism and finality in § 2254 cases — an intent demonstrated by the inclusion of statutory provisions for the procedural default of federal constitutional claims when the petitioner fails to allow the state courts the opportunity to consider them in the first instance.

As we have said, Brown admitted in his § 2254 petition that his constitutional claims that derive from the prosecutor’s comment were not properly presented to the Rule 29.15 court and were not raised in his consolidated state-court appeal. In these circumstances, his habeas claims are procedurally defaulted and they will be barred — that is, we will not consider them on federal habeas review — unless Brown can demonstrate cause and prejudice for the default, or unless he can show that the federal habeas court’s failure to consider the issues will result in a miscarriage of justice because he is actually innocent. See Sawyer v. Whitley, 505 U.S. 333, 338-39, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). As an alternative argument to his contention that there can be no procedural default because there is no state remedy, Brown insists that the cause for his default is his Rule 29.15 counsel’s constitutional ineffectiveness in failing to raise the issue. Notwithstanding Brown’s argument that it should be otherwise, it is the law of this Circuit that alleged ineffectiveness of state post-conviction counsel cannot supply the required cause to excuse a procedural default. Oxford v. Delo, 59 F.3d 741, 747-48 (8th Cir.1995), cert. denied, 517 U.S. 1124, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996); see also Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992) (citing Coleman v. Thompson, 501 U.S. 722, 752-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). And as we have said many times, one panel of this court may not overrule the holding of another. See, e.g., Burns v. Gammon, 173 F.3d 1089, 1092 (8th Cir.1999). Further, Brown does not claim that he is actually innocent, so there can be no miscarriage of justice.

In sum, we will not consider the merits of Brown’s claims related to the prosecutor’s comment, because they are proeedurally barred. The District Court’s denial of habeas relief on these grounds is affirmed.

II.

The District Court also granted a COA on Brown’s ground 11. Brown claims his constitutional rights were violated when the trial court excluded parts of the testimony of social worker Jill Miller during the sentencing phase of the trial.

Following an offer of proof, during which Miller was examined by Brown’s counsel, the trial court indicated that it would sustain the prosecutor’s objections to Miller’s testimony “that the defendant told her he had a head injury as a child, that he had headaches and that he had been sexually abused as a child when he was five years old.” Trial Transcript at 2400-01. Further, during Miller’s testimony before the jury, the prosecutor’s hearsay objections were sustained when the witness was asked about what Brown had told her regarding various matters, including his health problems, his history of sexual encounters, his relationship with his grandmother, the activities he enjoyed as a child, his experience in prison, the death of friends who were important to him, his alcohol and drug usage, and physical abuse he had sustained. The witness was not precluded from testifying to what she had learned about Brown from others who were not present in the courtroom (indeed, she was never asked about that when testifying before the jury); to what she had learned from reading available school, prison, and medical records; to her impressions of Brown, presumably formed in large part from her conversations with him; and to Brown’s description of himself. The questions to which objections were sustained were queries about the content of her conversations with Brown: “Did you discuss with Vernon Brown whether or not ... “Did you talk with Vernon regarding ... ?”; “What did he tell you ... “Did you talk to him with regard to ... ?”; “Did he indicate to you ... ?” Trial Transcript at 2410-15. We have read the transcript of the proffer and Miller’s actual testimony before the jury and conclude that it is not true, as Brown suggests, that Miller was prevented from testifying to her opinion on a topic for which she was qualified as an expert.

In Brown’s consolidated appeal, the Missouri Supreme Court addressed only the evidentiary issue regarding the trial court’s exclusion of Miller’s testimony as self-serving hearsay, concluding that the lower court did not abuse its discretion in refusing the testimony. The Supreme Court did not mention the constitutional question raised by Brown. This clearly leaves the federal courts with no state decision to which to apply the § 2254 standards, so we will review de novo the District Court’s decision on the merits of the constitutional issue. Further, as with the Turner letter, we do not have jurisdiction to consider Brown’s quarrel with the trial court’s evidentiary rulings, except to the extent that the exclusion of the testimony is alleged to have violated Brown’s federal constitutional rights.

As noted above, Brown must show egregious and prejudicial error as a result of the testimony’s exclusion in order to sustain a federal due process claim. We do not believe he has done so. Brown was sitting in the courtroom able to testify to everything that was excluded from Miller’s testimony. And some of it came in via other mitigation witnesses. The evidence that was excluded, while arguably mitigating, was not overwhelmingly so — unlike the compelling evidence of aggravating factors. We conclude that any error in excluding the evidence in question was not “gross, conspicuously prejudicial or of such import that the trial was fatally infected.” Griffin, 33 F.3d at 904.

The denial of habeas relief on Brown’s ground 11 is affirmed.

III.

For his next point, his habeas ground 8, Brown challenges the state court rulings on his inculpatory statements that were used against him at trial.

Synetta Ford was murdered in March 1985. Police questioned Brown at the scene, and he told them that he had seen Ford arguing with a Cuban man. After being questioned by police on three subsequent occasions, Brown left town on March 28, 1985, telling his wife, K.M., that he was tired of the questioning. He instructed K.M. to tell police that he had been abducted at gunpoint by three men in a red Pinto. On April 1, K.M. told that story to police when they came looking for him; on April 2, she told police that Brown had told her that he had killed Ford. On April 24, 1985, Brown was arrested for Ford’s murder and told police the abduction story. Soon after, K.M. said she had bed to police about Brown telling her that he had committed the murder, so the charges against Brown were dropped.

On October 27, 1986, Brown was arrested for the murder of nine-year-old Janet Perkins, waived his right to have counsel present during questioning, and confessed. Prosecutors filed a complaint on October 28 charging him with the Perkins murder. Counsel from the public defender’s office visited with Brown the next morning, sometime around 8:30 or 9:30, and found him to be indigent. Later that morning, around 11:30, the officers who were investigating Synetta Ford’s death visited Brown and read him his rights; Brown agreed to talk with them. During the course of the afternoon, after two additional Miranda readings and two waivers of those rights, Brown made incriminating statements, eventually memorialized on videotape, telling this story: Brown struggled with Ford in her apartment when she came at him with a butcher knife. According to Brown, Ford swung the knife wildly and stabbed herself in the chest. Then she removed the knife and attacked Brown again, at which time he wrapped the cord of an electric curling iron several times around her neck and knotted the cord. As the struggle continued, she stabbed herself again, this time in the throat, and Brown left.

The trial court denied Brown’s motion to suppress his statements. Brown raised the issue in his direct appeal to the Missouri Supreme Court, where the point was denied. In his § 2254 petition, he contends that his constitutional rights were violated when the court allowed his statements to be used against him because (1) he should not have been questioned about the Ford murder when counsel representing him-.on the Perkins murder charges was not present and (2) his statement was not voluntary, intelligent, and knowing because he was high on phencyclidine (POP), and any waiver of his Miranda rights therefore was invalid. The District Court denied relief but granted a COA on these claims.

Brown’s claim that his statements about Ford were illegally obtained was first raised when the State used the Ford statements against him in the Perkins trial, after which he was convicted of murder and sentenced to death. State v. Brown (Perkins case), 902 S.W.2d 278, 291-92(Mo.) (en banc), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). As to the interrogation in the absence of counsel, the Missouri Supreme Court, in denying Brown’s claim in this case, cited its opinion in Brown’s appeal in the Perkins case. Brown (Ford case), 998 S.W.2d at 547. In the Perkins consolidated appeal, that court had cited McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), in denying Brown’s assertion that the Ford statements were illegally obtained. Brown (Perkins case), 902 S.W.2d at 292.

In McNeil, the defendant was under arrest for armed robbery and was represented at a preliminary appearance by a public defender. Later that day, a detective working a murder investigation met with McNeil and advised him of his rights. McNeil signed a waiver and was questioned but denied being involved in the activities surrounding the murder. But two days later, after again waiving his rights, the defendant admitted involvement, and two days after that, he provided another incriminating statement. The trial court declined to suppress the statements and the state appellate court affirmed. The United States Supreme Court granted certiorari in the case and affirmed. The Court declared that the Sixth Amendment right to counsel is “offense specific.” It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”” McNeil, 501 U.S. at 175, 111 S.Ct. 2204 (quotation marks and citations to quoted cases omitted). “Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” Id. at 176, 111 S.Ct. 2204 (citations to quoted cases omitted).

Brown attempts to distinguish McNeil by insisting that the Perkins and Ford cases were treated as “intertwined” by the prosecution “[fjrom beginning to end.’’ Br. of Appellant at 80. He notes that a single indictment in November 1986 charged Brown with both murders, albeit in separate counts, and that evidence from each case was used in Brown’s trial in the other. Brown’s contention that these connections between the two cases preclude the application of otherwise controlling precedent is of no avail.

Assuming that two discrete crimes could be so related that the teachings of McNeil would not apply, these are not those cases. The two murders were committed at different times, more than a year and a half apart, and with distinctly different victims and apparent motives. A complaint was filed against Brown in the Perkins case on October 28, 1986; it was not until November 18, 1986, almost three weeks after the interview in question, that the state initiated adversarial judicial criminal proceedings in the Ford case and Brown’s right to. counsel for that murder attached. And although the November indictment included both counts, the cases ultimately were severed for trial.

We agree with the District Court’s conclusion that the state court’s decision was not contrary to clearly established law, as set forth in McNeil, nor did it involve an unreasonable application of that law. Indeed, it is a completely faithful application of clearly established Supreme Court precedent. And to the extent the state court’s decision relied on findings of fact, those factual determinations are not unreasonable in light of the evidence that was before the court.

Brown also claims that his inculpatory statements in the Ford case were not voluntary, intelligent, and knowing because he was under the influence of PCP during the interrogation, and so his constitutional rights were violated when the statements were admitted into evidence at his trial.

The public defender initially assigned to meet with Brown after charges were filed in the Perkins case testified at the pretrial hearing that when he interviewed Brown at 8:30 or 9:30 in the morning of October 29, 1986, the same day Brown made the incriminating statements in the Ford case, Brown “appeared to be kind of sleepy or dazed.” Trial Transcript at 47 (pretrial motion). Brown told his counsel that he had smoked cigarettes dipped in PCP at some time before his arrest, which was two days earlier, but counsel “didn’t know personally if he was” under the influence of alcohol or drugs on the 29th. Id. One of the detectives who talked with Brown around the time of the Ford murder in March 1985 and who participated in the interview on October 29, 1986, said of Brown at the hearing, “I’ve never seen him in a condition that I thought he was high on drugs or alcohol.” Id. at 36. The detective said Brown did not appear tired and was calm when the officers interviewed him.

The Missouri Supreme Court noted that Brown was adequately informed of his Miranda rights: he was told of those rights several times during the interview, he indicated each time that he understood them, and he twice signed a waiver. At the end of the last step in the interview (Brown’s fifty-five-minute videotaped statement), Brown indicated that he was not under the influence of drugs or alcohol. In any event, the court said, a “defendant’s physical and mental condition is not the critical question in determining if defendant’s statements were voluntary.” Brown (Ford case), 998 S.W.2d at 547. That court was correct. There is no constitutional “right of a criminal defendant to confess to his crime only when totally rational and properly motivated.” Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (holding suppression was properly denied notwithstanding testimony of a psychiatrist that defendant was schizophrenic and in a psychotic state at least the day before he confessed). Where the allegation of involuntariness relies on the mental condition of the defendant, “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. at 167, 107 S.Ct. 515. Otherwise, the admission of a defendant’s statement that was made when a question could be raised about the defendant’s mental state is a matter of state evidentiary law. Id.

The District Court concluded that the state court’s decision did not reflect an unreasonable application of clearly established federal law or an unreasonable determination of the facts, and that the decision was not contrary to clearly established federal law. We agree. Even assuming that Brown, when questioned about the Ford murder while in custody for the Perkins murder, was impaired by his earlier voluntary use of PCP, it was not an unreasonable application of Connelly to conclude that Brown’s constitutional rights were unaffected by the trial court’s admission of his statement, where there is no evidence of police coercion in the taking of the statement. The state court’s application of the relevant law to Brown’s claim is not only entirely reasonable, but also correct.

In sum, we affirm the District Court’s denial of § 2254 relief on Brown’s ground 8.

rv.

Brown maintains that the District Court erred in holding that claims contained within his § 2254 grounds originally numbered 6 and 14 were procedurally barred and also erred in concluding that the state court did not unreasonably apply clearly established federal law when it denied on the merits the one claim within those grounds that had been properly presented to the state court.

The jurors were sequestered during Brown’s trial, and a few had their motel rooms burglarized while they were at dinner one weekend night during the trial. Taken were $63.00, some socks, and a bag of snacks. The motel promptly reimbursed the affected jurors for their losses and fired the members of the housekeeping staff who were suspected of the burglaries. The next time court was in session, the trial judge reported the incident to counsel, and a deputy recounted that only one juror “was really upset, visibly upset, she was crying a little bit” when the burglary was discovered. Trial Transcript at 2130. Brown’s motion for a mistrial was overruled. Brown contends that the trial judge should have granted a mistrial or, at the least, should have questioned the jurors to determine if they could continue to be fair and impartial to Brown notwithstanding that they were now crime victims. The trial court’s failures, Brown claims, resulted in violations of his rights under the Sixth, Eighth, and Fourteenth Amendments. He further contends that trial counsel was ineffective for failing to seek some action by the trial court short of a mistrial, such as questioning the jurors about the incident, suggesting, we suppose, that the court would have found that one or more jurors could no longer be impartial to Brown and would then have had the appropriate grounds to declare a mistrial.

We agree with the District Court’s holding that Brown procedurally defaulted his claim that the trial court violated his constitutional rights when it failed to question the jurors about the burglary and its effect, if any, on their ability to be fair to Brown. He did not raise the issue at trial or in his appeal. Likewise, he did not claim ineffective assistance of counsel on this issue in his Rule 29.15 petition or on appeal from the denial of the motion for post-conviction relief, so this claim is also procedurally defaulted. Brown does not even attempt to describe cause for the defaults. As for prejudice, he states summarily that “there is a reasonable probability that these errors affected the jury’s decision of death,” but makes no effort to explain why this is so. Br. of Appellant at 93. Further, he makes no claim of actual innocence but merely says a failure to grant relief “would result in an extraordinary miscarriage of justice.” Id. Because he cannot show cause and prejudice or actual innocence, the claims are procedurally barred and we will not consider them on the merits in these § 2254 proceedings.

Brown, did raise in the Missouri Supreme Court the issue of the trial court’s refusal to grant his motion for mistrial. The court denied relief, noting, “There was no apparent indication that the jurors were biased against Brown because other individuals burglarized their hotel rooms.” Brown (Ford case), 998 S.W.2d at 549. The court concluded that “no circumstances existed warranting” this “drastic remedy reserved for the most extraordinary circumstances.” Id.

Under clearly established federal law, “ ‘the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors.’” See Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). Brown argues that because jurors were described by the deputy as “upset,” bias should be presumed. The trial court inquired of the deputy who was responsible for shepherding the jurors and was satisfied that the incident did not so affect their ability to be fair to Brown that a mistrial was called for. As we explained above, the Missouri Supreme Court agreed. The District Court held that the state court’s decision was not contrary to clearly established federal law, an unreasonable application of the law, or based on an unreasonable determination of the facts. Upon review, we conclude that Brown has not shown otherwise.

We affirm the District Court’s denial of § 2254 relief on Brown’s claims 6 and 14.

During voir dire, trial counsel for Brown informed the venire members that Brown had been convicted of murder and sentenced to death in the Janet Perkins case. For his habeas point- 20, Brown maintains that his trial counsel was constitutionally ineffective for doing so. According to Brown, trial counsel’s statements misled the jurors as to their responsibility for sentencing in the Ford case.

In order to prevail on this claim, Brown must be able to demonstrate that counsel’s performance was objectively deficient and that Brown thereby was so prejudiced that he did not receive a fair trial. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Rule 29.15 court found that trial counsel’s decision to bring up the Perkins matter during voir dire “was a matter of trial strategy,” an attempt to ensure “that the venire persons would not automatically impose the death penalty when they found out about it.” Brown, (Ford case), 998 S.W.2d at 550. And they surely would find out about it, since the prosecution intended to argue to the jury in the sentencing phase that Brown’s conviction in the murder of Janet Perkins was an aggravating factor in the Ford case. Further, Brown’s trial counsel intended to use his Perkins confession during the guilt phase of the trial to discredit his Ford statement. These were not the strategies of a novice public defender. As the Missouri Supreme Court noted, Brown’s main trial counsel “was the head of the public defender’s capital litigation unit and one of the most experienced attorneys in the unit.” Id.

Although the state courts did not mention Strickland, their conclusion that counsel’s actions were the product of a valid trial strategy is likewise a conclusion that Brown did not meet the first part of the test for constitutionally ineffective counsel—he did not show that counsel’s performance was deficient. The District Court concluded that the state courts’ decisions were not contrary to clearly established federal law or based on an unreasonable determination of the facts. We agree and further hold that the decisions did not involve an unreasonable application of Strickland,

The District Court went further and addressed the merits of the prejudice part of the Strickland test, even though the state courts had not, and concluded that Brown had not shown the necessary prejudice. We do not review this holding because it is unnecessary for us to do so, given our deference to the opinion of the Missouri courts on the question of counsel’s performance.

The denial of § 2254 relief on Brown’s point 20 is affirmed.

VI.

Brown contends that the District Court erred in concluding that his ground 24 was procedurally barred. For that claim, Brown alleges that his constitutional rights were violated when the prosecutor, in reviewing the defense case during his rebuttal argument to the jury, noted that trial counsel “called exactly two witnesses” and further commented on the lack of evidence presented in Brown’s defense. Trial Transcript at 2178-79. Because these remarks were followed later in the argument by the “not going to testify” comment discussed in part I of this opinion, Brown maintains that the prosecutor’s argument was an attempt to shift the burden of proof from the State to Brown.

In his consolidated appeal, Brown raised only the issue regarding the prosecutor’s statements about the witnesses he called, contending that this alone shifted the burden of proof. The Missouri Supreme Court rejected his claim, holding that the remarks in question had no such effect. His argument now is that the comment about his witnesses and the remark about his not testifying worked in combination to violate his constitutional rights. But as we have said, he did not raise a challenge in the state courts to the prosecutor’s statement that “[h]e’s not going to testify.” The District Court held that Brown’s claim therefore was procedurally defaulted and that because Brown had not shown cause and prejudice to excuse the default, the claim is procedurally barred from consideration by the federal habeas court. In his brief to this Court, Brown steadfastly ignores the basis for the District Court’s denial of his point and fails to make any argument as to cause and prejudice, presumably relying on the argument that we rejected in part I of this opinion. After de novo review, we hold that the District Court did not err in concluding that this claim is procedurally barred.

VII.

For his habeas ground 25, Brown alleges that the trial court erred in the sentencing phase of the trial, and that his constitutional rights were violated when that court refused his proposed instructions on mitigation. These instructions included a list of fifteen nonstatutory mitigating factors.

Brown’s first argument is that Missouri law at the time, by statute, required that the proposed instructions be given. In Brown’s consolidated appeal, the Missouri Supreme Court noted that even before the statute in question was amended (in 1993, but after Brown’s trial) to prohibit a jury from being instructed on specific nonstatutory mitigating factors, the court itself “required the trial courts not to list nonstatutory mitigating circumstances in the instruction.” Brown (Ford case), 998 S.W.2d at 551. The court reasoned that a list might be interpreted by jurors as inclusive, preventing them from considering other evidence they might deem mitigating. The state court then rejected Brown’s argument, and Brown now alleges that this was error. Once again, Brown is arguing that the Missouri courts misinterpreted the State’s own laws; this issue is not within our jurisdiction.

Brown further asserts that the trial court’s failure to give his proposed instructions on mitigating evidence deprived him of a constitutional liberty interest. The District Court concluded that this claim was procedurally defaulted, and there was no showing of cause and prejudice or actual prejudice to overcome the default, so the claim was barred. Brown does not argue otherwise on appeal. But he also generally invokes the Sixth, Eighth, and Fourteenth Amendments in stating his claim: that his rights were violated when the trial court refused his instructions on mitigation but gave instructions listing the statutory and nonstatutory aggravating circumstances that the prosecution maintained it had proved. The Missouri Supreme Court did not adjudicate the merits of the constitutional claim, dealing only with the issue of state law, so there is no state court decision to which we must defer. The District Court did address the claim on the merits; we review that decision de novo.

The District Court relied on Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), in holding that Brown’s constitutional rights were not violated when the trial court rejected his instructions on mitigating evidence. In Buchanan, the trial judge gave an instruction on a statutory aggravating factor and declined to give the capital defendant’s proposed instructions on statutory and general nonstatutory mitigating circumstances. The jury recommended a sentence of death. The United States Supreme Court distinguished between the “eligibility” phase and the “selection” phase of a capital sentencing proceeding. “In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances.” Id. at 275, 118 S.Ct. 757. The jury’s discretion at this stage must be limited “to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition.” Id. at 275-76, 118 S.Ct. 757. In the next phase, where mitigating circumstances have relevance, the jury decides whether the eligible defendant should receive a death sentence. In this “selection” phase, “the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence.” Id. at 276, 118 S.Ct. 757. But the Court, noting that its previous “decisions suggest that complete jury discretion is constitutionally permissible” during the selection phase, held that the trial court’s refusal to instruct the jury “on the concept of mitigation and ... on particular statutorily defined mitigating factors did not violate the Eighth and Fourteenth Amendments to the United States Constitution.” Id. at 276, 279,118 S.Ct. 757.

The instructions given in Brown’s case clearly directed the jury to consider mitigating circumstances and to weigh them against any aggravating circumstances when determining whether the death penalty was appropriate in Brown’s case. In fact, the jury was instructed that it could impose a life sentence even if mitigating factors did not outweigh aggravating factors. Indeed, the mitigation instructions given to Brown’s jury were far more explicit than the one given in Buchanan, which simply gave the jury the authority to sentence the defendant to life imprisonment instead of death if it “believe[d] from all the evidence that the death penalty [was] not justified.” Id. at 272 n. 1, 118 S.Ct. 757 (quoting the jury instructions). The absence from the instructions of Brown’s list of nonstatutory mitigating factors in no way precluded the jury from considering the mitigation evidence; indeed, the instructions mandated that it do so.

Brown says that Buchanan is distinguishable because only statutory factors were at issue in that case, not nonstatutory factors as in this case. But he does not explain why this makes Buchanan inapplicable here, and we can discern no reason that it should. Accordingly, we affirm the District Court’s decision denying habeas relief on Brown’s point 25.

VIII.

We have said enough, so far, to reject all of the contentions that would invalidate Brown’s conviction. We have also rejected all but one of his arguments concerning the penalty phase. It remains to discuss the remaining point, which in our opinion has merit. We think the trial court violated petitioner’s rights under the Eighth Amendment and under the Due Process Clause of the Fourteenth Amendment by excluding a letter written by Mr. Brown’s brother, Darius Q. Turner, who was on active duty in the United States Army serving in the Middle East as part of Operation Desert Shield. Petitioner wished to present the letter to the jury as mitigation evidence. The letter cast petitioner in a much more positive light than did the State of Missouri’s account of him. Among other things, the letter indicated that, as a child, petitioner had been very-protective of his little brother and his friends. The letter also indicated that petitioner continued to mean a great deal to his brother—in fact, that petitioner meant more to his brother than did other family members. This letter had the potential to sway the jury because it cast petitioner in such a positive light and showed the continuing positive impact that his life could have if preserved. The trial court excluded the letter on the ground that it was hearsay.

Petitioner alleges that the exclusion of the letter violated his constitutional rights under the Eighth and Fourteenth Amendments. This question should be decided under pre-AEDPA standards. In considering this claim, the Missouri Supreme Court primarily addressed the question of state-evidentiary law, only noting at the very end of its discussion that the letters “exclusion does not in the context of this case seem prejudicial.” Brown, 998 S.W.2d at 550. It seems, then, that the federal constitutional question was not fully “adjudicated on the merits in state court proceedings.” 28 U.S.C. § 2254(d). In these circumstances, it seems appropriate that we not apply the standards of § 2254 as amended by AED-PA, because there is no apparent state-court adjudication to which to apply them. See Robinson v. Crist, 278 F.3d 862, 865 (8th Cir.2002) (“because this claim apparently was not adjudicated by the [state] court, we likely should apply the pre-AED-PA standard of review.”). Indeed, the District Court considered the constitutional question on the merits.

We understand Mr. Brown’s claim as relying upon both the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. In Lockett v. Ohio and later cases, the Supreme Court established that the Eighth Amendment guarantees a capital defendant the right to introduce all relevant mitigating evidence in the penalty phase. Thus, the Court noted that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion) (emphasis in original); see also Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The Supreme Court has also held that the Due Process Clause requires that a state’s rules of evidence not be applied mechanically when doing so would preclude the defendant from introducing highly relevant evidence at the penalty phase. Thus, the exclusion of hearsay testimony at the penalty phase of a death-penalty case violates the Due Process Clause of the Fourteenth Amendment where “[t]he excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability.” Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (citations omitted) (per curiam).

In Mr. Brown’s case there was no reason to doubt the reliability of the letter from his brother. The letter’s return address was to “SFC Darius Q. Turner, HLM 801st MAINT BN, 101st ABN DIV (AASLT), APO N.Y. 09309.” The letter’s postmark indicates that it was sent from the United States Army. Indeed, the trial judge did not doubt the letter’s authenticity: “I have no problem with the authenticity of it except that it’s just not admissible even if this was an affidavit.” Tr. 2443. Because “substantial reasons existed to assume [the letter’s] reliability,” Green, 442 U.S. at 97, 99 S.Ct. 2150, due process required its admission if it was highly relevant to a critical issue. In our estimation, the letter was highly relevant, as it cast Mr. Brown in a positive light and attested to his continued importance to his brother, who was an active-duty Army sergeant. Was exclusion of the letter sufficiently prejudicial to warrant vacation of Mr. Brown’s sentence? We think the answer is yes. Mr. Brown’s claim relies upon both the generalized or undifferentiated Due Process Clause and the Eighth Amendment. Both the Supreme Court and this Court have held that a Lockett claim is reversible error unless the error can be said to be “harmless.” See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 7-8, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir.1997).

The exclusion of Mr. Turner’s letter was not harmless. The critical issue in the penalty phase of Mr. Brown’s trial was his character. The evidence presented by the State of Missouri was aimed at convincing the jury that petitioner was a bad person. Petitioner’s attorneys, on the other hand, attempted to prove that although he had committed bad acts, he was a man whose life was worth saving. Mr. Turner’s letter seems highly relevant in itself, and it would have been even more compelling than the other mitigation evidence because of its source — a member of the armed services on active duty in time of war. Mr. Turner’s status as a soldier would have been especially forceful in this case because the trial judge had repeatedly lauded the soldiers serving in the Middle East. The judge had at various times said all of the following to the jury:

There is nothing more important than ... what our fellows and ladies are doing over in the Gulf right now, fighting for this country.

^ Hi Hi * Hi &

I suppose that there is only one type of service that a citizen can render to his government or to society above jury duty is that which is now being enacted in the Gulf area, war, that’s the highest duty that a citizen owes to his country.

^ ^ * Hi

It’s a vital service that you perform. Only one transcends it, only one is greater than that and that’s what’s happening over there in the Gulf. Serving your country in times of conflict and things of that nature is the only service a citizen can perform that is greater than serving on jury duty.

tfi Ht Hi Hi ^

When you stop to consider that we have a lot of men in the Gulf area that I suppose if they had their druthers they would rather not be there and the sacrifices they’re making, ours pales very, very badly in comparison.

Hi H« ❖ Hi Hi Hi

Ladies and gentlemen of the jury, I know we will all keep our troops in the Persian Gulf in mind when we say our prayers.

Tr. at 875, 996, 1144, 1632, and 1642. These tributes would have made the plea for mercy from Mr. Brown’s brother resonate forcefully with the jury. If there is any doubt that the exclusion of the letter would have prejudiced Mr. Brown in a normal case, the trial judge’s repeated references to the importance of the service of the troops remove that doubt from our minds. We hold that the exclusion of Mr. Turner’s letter violated Mr. Brown’s rights under the Eighth and Fourteenth Amendments and that the exclusion was not harmless.

Having concluded that petitioner’s murder trial was fatally flawed in the penalty phase, we reverse the order of the District Court and grant the writ of habeas corpus, requiring the State to reduce the penalty to life in prison, or to retry the issue of life or death. We leave the conviction undisturbed.

It is so ordered.

NOTES TO THE OPINION

Miller actually did testify to the headaches, as that information appeared in some of the records she reviewed.

Brown contends that the “state trial judge did what the prosecutor wanted” when the prosecutor objected to testimony "about anything anyone had told” Miller. Br. of Appellant at 73. That allegation is unsupported by the record. She simply was not asked while testifying to report what others had told her about Brown.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In his brief, Brown states that "[t]he district court erred in denying, as procedurally barred, the petitioner's Ground 8." Br. of Appellant at 79. That was not the court’s basis for denying relief.

The Missouri Supreme Court actually quoted one of its own cases using nearly identical language to that used by the United States Supreme Court in Connelly and cited no United States Supreme Court cases for the proposition. But reasonable application of clearly established federal law "does not require citation of [United States Supreme Court] cases— indeed, it does not even require awareness of [such] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002).

Brown also mentions in his brief that counsel elicited testimony from a detective that he, the detective, knew Brown had said that he had killed Perkins. Brown did not raise this as a point of ineffectiveness in the state courts, and those courts did not address it. And before this Court, Brown's argument is solely directed to counsel's performance during voir dire and does not speak to the detective's testimony elicited by counsel.

Brown insists that he "is entitled to relief for the reasons set forth in Caldwell v. Mississippi," 472 U.S. 320, 339, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in which, he says, the Court held that "comments which cause the jury to believe the responsibility for determining the appropriateness of the death penalty lies elsewhere" are constitutionally prohibited. Br. of Appellant at 99. We grant that such comments by counsel, if actually made to a jury, could constitute deficient performance, but that is not Brown’s argument—he does not bring up Caldwell in arguing that he has met the first part of the Strickland test. In fact, he does not mention the Strickland test at all, notwithstanding that there is no question that the test represents the clearly established law to apply to an allegation of constitutional ineffectiveness of counsel. In any event, the record does not support the contention that trial counsel’s message to the veniremen was that they were not going to bear responsibility for sentencing Brown to death. [OPINION BY BOWMAN, Circuit Judge, type=dissent] BOWMAN, Circuit Judge, dissenting. I concur in the judgment of the Court insofar as it affirms the District Court’s rejection of Brown’s various claims for ha-beas relief. I respectfully dissent from that part of the judgment reversing the District Court on Brown’s ground 12 and remanding for resentencing. I agree with the Court that AEDPA deference to the state-court decision is not appropriate here, as the state court did not address the merits of the constitutional question. On the other hand, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). To the extent Brown’s argument attacks the Missouri courts’ application of its own rules of evidence, it is not cognizable in federal habeas. See 28 U.S.C. § 2253(c)(2) (2000) (“A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.”). The only issue properly before the federal habeas courts is Brown’s claim that his Sixth, Eighth, and Fourteenth Amendment rights under the Constitution were violated by the exclusion of the letter from his brother, Sergeant Darius Turner, as evidence in mitigation at the sentencing phase of the trial. Initially, I note that the Court places what I consider to be undue emphasis on the trial judge’s comments to the jury regarding the then-ongoing Gulf War and the contemporaneous service of U.S. troops in that war. As later revealed by the letter in question, Turner was stationed in Saudi Arabia during the Gulf War. It appears that the Court is suggesting that the jury would have found mitigating circumstances in Turner’s service to his country in the Gulf War, i.e., in deeds of Turner that have no relevance to Brown, his crime, his character, or his relationship with Turner. That is not proper mitigation evidence. The trial court’s evidentiary ruling regarding the Turner letter could be a violation of Brown’s due-process rights, such that the writ must issue, only if it resulted in error that was “gross, conspicuously prejudicial or of such import that the trial was fatally infected.” Griffin v. Delo, 33 F.3d 895, 904 (8th Cir.1994) (quoting Rhodes v. Foster, 682 F.2d 711, 714 (8th Cir.1982)), cert. denied, 514 U.S. 1119, 115 S.Ct. 1981, 131 L.Ed.2d 869 (1995). I conclude that Brown has not made the case for the necessary prejudice. While “substantial reasons existed to assume [the letter’s] reliability,” I do not think “[t]he excluded evidence was highly relevant to a critical issue in the punishment phase of the trial.” Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam). That is to say, having studied the record in this case, I must conclude that Brown cannot show that the letter, had it been admitted into evidence, would have changed the jury’s decision to impose the death penalty. There was, in fact, other mitigating character evidence before the jury, and, even more relevant here, there was devastating evidence of aggravating circumstances. Even if “harmless error” be the governing standard, the exclusion of the Turner letter was harmless beyond a reasonable doubt. The jury was instructed on four aggravating circumstances, two statutory and two nonstatutory. The first factor that the jury considered was whether Brown was convicted in 1973 in Indiana on a charge of assault and battery with intent to gratify sexual desires. In fact, the indictment on the charge, read into evidence during the sentencing portion of Brown’s trial, accused Brown of fondling and caressing the body of a twelve-year old girl to gratify his own sexual desires. Trial Transcript at 2298. Brown pleaded guilty to the charge. Next, the jury was instructed to consider whether Brown’s murder of Synetta Ford “involved torture and depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman.” State v. Brown, Cause No. 861-03056, Legal File Components of the Record on Appeal at 86 (Mo.S.Ct.). The jury could find depravity of mind only if it found that Brown “committed repeated and excessive acts of physical abuse upon Synetta Ford and the killing was therefore unreasonably brutal.” Id. The evidence before the jury was that nineteen-year-old Synetta Ford was found dead in her basement apartment with a knife sticking out of her throat and the electrical cord from a curling iron “tightly knotted around the neck.” Trial Transcript at 2043, see also id. 1662,1684. The door to her apartment had been forced open. The evidence showed that Brown first strangled her, taking the time to knot the electrical cord around her neck, and then as she was dying he stabbed her in the chest and neck. The stab wound to her neck severed her carotid artery, the major artery in the neck. The jurors saw photographs of Ford’s body taken as it appeared when it was discovered on the floor of her apartment and also an autopsy photograph. In addition, the jury watched a videotape of Brown’s confession, where he claimed that Ford had accidentally stabbed herself before and after he strangled her with the cord. The jury was further charged with deciding whether Brown was convicted of first degree murder in 1988. During sentencing, jurors heard evidence that in October 1986 Brown took nine-year-old Janet Perkins, who was at his home playing with his stepsons, into the basement where he wrapped a cord around her neck and strangled her. The boys heard her screaming as they played upstairs. The body was found near a trash dumpster, wrapped in trash bags, with a rusty coat hanger wrapped around her ankles and one of her arms, so that her knees were drawn up to her body. After Brown was picked up in connection with the Perkins murder, and confessed his guilt, he led officers to another dumpster a block from where the body was found. There they found a bag containing Janet Perkins’s missing shoe, a yellow plastic raincoat, and some of her school papers. The Ford jury also saw photographs of the little girl’s body and watched Brown’s videotaped confession to the Perkins murder. Brown was convicted of first degree murder in the Perkins case and sentenced to death. Finally, the jury was instructed to decide whether Brown committed acts of sodomy on his stepsons C.M., J.M., and T.J., who were about seven, five, and nine years old, respectively, at the time of the abuse to which they testified. C.M., age eleven at the time of the sentencing, testified that before Brown was arrested for the Perkins murder in October 1986, he would take C.M. alone into the bedroom Brown shared with C.M.’s mother and tell him to undress and lie on his stomach on the bed. Brown would undress, put “hair grease” on his penis, and put his penis in C.M.’s anus and then in his mouth. Id. at 2262. Brown committed these acts of sodomy on several different occasions. C.M. told no one about the incidents until Brown was in jail because Brown had said that if he told, he “would never see any of [his] brothers or [his] mother again.” Id. at 2264. J.M., nine years old when he testified, also explained to the jury how Brown had performed anal sex on him and said that Brown had threatened to “kill us” if he told anyone. Id. at 2288. Thirteen-year-old T.J. testified that Brown put his penis in T.J.’s anus and mouth and that Brown also put his mouth on T.J.’s penis. Id. at 2323. The boys said that Brown would commit the acts of sodomy when their mother was not at home, taking them one at a time from playing with their brothers and locking the door so that the boys who were not being victimized at the time could not come in. The jury found all four aggravating circumstances, unanimously, beyond a reasonable doubt. In light of this damning evidence, I cannot see how a letter expressing brotherly affection rooted in a childhood memory would have changed the jury’s decision to impose the death penalty upon Brown. I would affirm the judgment of the District Court denying the writ on all claims.

Throughout Brown's brief, counsel is wont to allege violations of all manner of constitutional amendments, usually the Sixth, Eighth, and Fourteenth — often invoking "due process” and "equal protection” for good measure — regardless of their applicability to the issue raised. Preparing briefs for § 2254 review of capital cases is often complex, and counsel's continuing representation of habeas petitioners facing execution is of great assistance to the Court. I would suggest, however, that more focused arguments, identifying with specificity the constitutional issues in play, would better serve his clients. Further, I believe that counsel’s disparaging rhetoric directed at the state courts, at Brown's previous counsel, and at counsel for the State goes beyond the proper bounds of zealous advocacy-

371 F.3d 458, decided June 15, 2004

Vernon BROWN, Appellant, v. Allen D. LUEBBERS, Appellee.

No. 02-1845.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2004.

Filed: June 15, 2004.

John W. Simon, argued, Clayton, MO (Richard H. Sindel, Clayton, MO, on the brief), for appellant.

Stephen D. Hawke, argued, AAG, Jefferson City, MO, for appellee.

Before LOKEN, Chief Judge, RICHARD S. ARNOLD, BOWMAN, WOLLMAN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, and COLLOTON, Circuit Judges, En Banc.

[OPINION BY BOWMAN, Circuit Judge. type=majority]

BOWMAN, Circuit Judge.

In 1991, a jury convicted Vernon Brown in Missouri state court for the 1985 strangulation death of Synetta Ford. He was sentenced to death. His consolidated direct appeal and post-conviction challenges in the Missouri Supreme Court were unavailing. State v. Brown, 998 S.W.2d 531(Mo.) (en banc), cert. denied, 528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337 (1999). His 28 U.S.C. § 2254 petition in the District Court raising thirty-one grounds for relief was denied, but the court granted a certificate of appealability on eleven grounds. A panel of this Court affirmed the District Court in part but granted the writ on one of Brown’s claims challenging his sentence. Brown v. Luebbers, 344 F.3d 770 (8th Cir.2003).

NOTES TO THE OPINION

Both Brown and Allen D. Luebbers (representing the State) filed petitions for rehearing with suggestions for rehearing en banc. We requested from Brown a supplemental response addressing the appropriate standard of. review to apply to the issue upon which the writ had been granted. After receiving the response, the panel denied both petitions for rehearing. The Court en banc rejected Brown’s suggestions for reconsideration by the full Court but granted an en banc rehearing to the State. The claim in question concerns a letter that Brown’s defense counsel sought to have read into evidence during the penalty phase of Brown’s trial for the Ford murder. Counsel represented to the trial court that the letter was from Darius Q. Turner, Brown’s younger brother, and had been sent to Brown’s counsel in the public defender’s office. According to the letter, Turner, a sergeant in the United States Army, was deployed in Saudi Arabia in Operation Desert Shield at the time of Brown’s sentencing. As a result, he was unable to be present in the courtroom to testify. In the letter, Turner noted the love and understanding between him and his brother and recounted how Brown had protected Turner from bigger boys when Turner was a child. As for their relationship as adults, Turner expressed regret for not staying in touch and told his brother that the telephone calls and letters from Brown meant more to him than those he received from others. Finally, he implored those who might read the letter to let God’s law decide Brown’s fate. The trial court excluded the letter as hearsay. We now affirm the District Court’s denial of relief on all grounds. In doing so,'we adopt the holdings and reasoning of the panel opinion, except for Part VIII and the result. I. - Under 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, a decision by a state court “with respect to any claim that was adjudicated on the merits in State court proceedings” is entitled to deference by ■ the federal courts. 28 U.S.C. § 2254(d). That is, we look only to see if such adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(1), (2). AEDPA effected a move toward greater deference in the § 2254 courts’ review of state-court decisions. See Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (noting “ § 2254(d)’s new, highly deferential standard for evaluating state-court rulings”). But as the language of the statute makes clear, there is a condition precedent that must be satisfied before we can apply the deferential AEDPA standard to Brown’s claim. The claim must have been “adjudicated on the merits” in state court. The majority (and the dissent, for that matter) in the panel opinion for the Court concluded that Brown’s constitutional claim regarding the Turner letter had not, in fact, been adjudicated on the merits in state court. So the first question for us to consider is: what constitutes an adjudication on the merits? From the plain language of the statute and black-letter law, we know that the state court’s decision must be a judgment — an adjudication — on a substantive issue — the merits (as compared with a procedural or technical point). A survey of opinions from our sister circuits demonstrates that, beyond these two considerations, resolving the question is not so easy. One thing is clear — no court has established bright-line rules about how much a state court must say or the language it must use to compel a § 2254 court’s conclusion that the state court has adjudicated a claim on the merits. That is as it should be, given one court’s difficulty in divining the thought processes of another based only on language being used in certain ways, not to mention the comity issues that would be raised. Cf. Coleman v. Thompson, 501 U.S. 722, 739, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (noting in discussion of procedural default in state habeas cases that the Court has “no power to tell state courts how they must write their opinions” so that reviewing “federal courts might not be bothered with reviewing state law and the record in the case”). We must simply look at what a state court has said, case by case, and determine whether the federal constitutional claim was considered and rejected by that court. After careful reflection upon the adjudication issue in this case, we now conclude that Brown’s constitutional claim was indeed adjudicated on the merits in state court, on two independent grounds, and that the AEDPA § 2254(d) standard of review should apply. A. In Brown’s consolidated appeal, the Missouri Supreme Court, at the very least, acknowledged that a federal constitutional claim was before it when it said, “Brown alleges that the letter should have been read into evidence pursuant to State v. Phillips, 940 S.W.2d 512, 517-18 (Mo. banc 1997), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979)” (per curiam). Brown, 998 S.W.2d at 549. Phillips, a Missouri death penalty case, concerned a Brady issue raised in the petitioner’s consolidated appeal. The State had argued that the Brady issue was of no consequence because the statement in question was hearsay and would not have been admitted into evidence even if it had been disclosed. The Phillips court, in the pages cited by the Missouri Supreme Court in Brovm, analyzed the question under Green and concluded that the testimony was highly relevant and reliable, and it should have been admitted. In Green, also a capital case, the hearsay at issue was the testimony of a witness given at the trial of Carzell Moore, who was indicted on the same charges of murder and rape as Green, the petitioner. Moore and Green were tried separately. The witness testified in Moore’s trial, the first to be held, that Moore, Green’s alleged partner in crime, had confessed to him, the witness. According to the testimony, Green was not present when the victim was murdered. The testimony was excluded from Green’s later trial as hearsay. The Supreme Court did not second-guess the state court’s evidentiary ruling that the testimony was hearsay but held that “its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability.” Green, 442 U.S. at 97, 99 S.Ct. 2150 (citing Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); id. at 613-16, 98 S.Ct. 2954 (opinion of Blackmun, J.)). It is true that the bulk of the Missouri Supreme Court’s brief discussion of Brown’s claim was devoted to the state-law evidentiary question and whether “the trial court abused its discretion” in excluding the letter. Brown, 998 S.W.2d at 549. But the “summary nature” of the discussion of the federal constitutional question does not preclude application of the AED-PA standard. James v. Bowersox, 187 F.3d.866, 869 (8th Cir.1999), cert. denied, 528 U.S. 1143, 120 S.Ct. 994, 145 L.Ed.2d 942 (2000). Here, the Missouri Supreme Court cited cases applying the relevant constitutional rule and held against Brown on the question of reliability. Under Green, absent a determination that “substantial reasons” exist to assume the reliability of the evidence in question, it will not be a due process violation for a court to decline to admit the evidence. The citation to the relevant law and the invocation of “reliability” in the opinion are enough to persuade us that the Missouri Supreme Court adjudicated the due process claim on the merits. That is not to say that citation to law and a key word from the application of that law- — or anything else— is required for us to determine that the claim was adjudicated on the merits. We only hold that they suffice in this case for us to conclude that the Missouri Supreme Court’s decision on this claim was an adjudication on the merits. B. We further conclude that the Missouri Supreme Court adjudicated Brown’s federal constitutional claim on the merits in an alternative holding. Following its references to Green and the reliability of the letter, the court said, ‘We ... note that even if [the trial judge] was wrong about the letter’s reliability, its exclusion does not in the context of this case seem prejudicial,” Brown, 998 S.W.2d at 549-50, a conclusion that is an application of the harmless-error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In Chapman, the Court held that certain federal constitutional errors made in state-court criminal trials could “be deemed harmless, not requiring the automatic reversal of the conviction” if the errors are shown to be harmless “beyond a reasonable doubt.” 386 U.S. at 22, 24, 87 S.Ct. 824. Again, there are no “magic words” that must be invoked before we can conclude that the Missouri Supreme Court decided that any error was harmless beyond a reasonable doubt. But here, the state court’s use of “prejudicial” signals to us the application of the Chapman standard, as the Supreme Court has long considered prejudice in its Chapman harmless-error analyses. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 636, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (“State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman ....”); Kimmelman v. Morrison, 477 U.S. 365, 382 n. 7, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (“Furthermore, when an attorney chooses to default a Fourth Amendment claim, he also loses the opportunity to obtain direct review under the harmless-error standard of Chapman, which requires the State to prove that the defendant was not prejudiced by the error.”) (citation omitted); Hopper v. Evans, 456 U.S. 605, 613-14, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) (“The preclusion clause did not prejudice respondent in any way, and a new trial is not warranted.”) (citing Chapman). On the facts of this case, the state court’s determination that the exclusion of the Turner letter did not seem “prejudicial” to Brown was sufficient adjudication on the merits to entitle this alternate holding to AEDPA deferential review. II. Having concluded that the standard set out in § 2254(d) as amended by AEDPA applies to Brown’s claim, we now consider whether the Missouri Supreme Court’s adjudication of the claim resulted in a decision that was contrary to or an unreasonable application of clearly established federal law. We will consider both grounds on which the Missouri Supreme Court decided the constitutional claim. But before we get to the analysis, we must lay out the evidence of aggravating and mitigating circumstances that was before the jury, as that evidence is critical to our legal conclusions here and in Part III. The jury was instructed on four aggravating circumstances, two statutory and two nonstatutory. The first factor that the jury considered was whether Brown was convicted in 1973 in Indiana on a charge of assault and battery with intent to gratify sexual desires. In fact, the indictment on the charge, read into evidence during the sentencing portion of Brown’s trial, accused Brown of fondling and caressing the body of a twelve-year old girl to gratify his own sexual desires. Trial Transcript at 2298. Brown pleaded guilty to the charge. Next, the jury was instructed to consider whether Brown’s murder of Synetta Ford “involved torture and depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman.” State v. Brown, Cause No. 861-03056, Legal File Components of the Record on Appeal in the Missouri Supreme Court at 86. The jury could find depravity of mind only if it found that Brown “committed repeated and excessive acts of physical abuse upon Synetta Ford and the killing was therefore unreasonably brutal.” Id. The evidence before the jury was that nineteen-year-old Synetta Ford was found dead in her basement apartment with a knife sticking out of her throat and the electrical cord from a curling iron “tightly knotted around the neck.” Trial Transcript at 2043, see also id. at 1662, 1684. The door to her apartment had been forced open. The evidence showed that Brown first strangled her, taking thé time to knot the electrical cord around her neck, and then as she was dying he stabbed her in the chest and neck. The stab wound to her neck severed her carotid artery, the major artery in the neck. The jurors saw photographs of Ford’s body as it appeared when it was discovered on the floor of her apartment and also an autopsy photograph. In addition, the jury watched a videotape of Brown’s confession, where he claimed that Ford had accidentally stabbed herself before and after he strangled her with the cord. The jury was further charged with deciding whether Brown was convicted of first degree murder in 1988. During sentencing, jurors heard evidence that in October 1986, Brown took nine-year-old Janet Perkins, who was at his home playing with his stepsons, into the basement where he wrapped a cord around her neck and strangled her. The boys heard her screaming as they played upstairs. The body was found' near a trash dumpster, wrapped in trash bags, with a rusty coat hanger wrapped around her ankles and one of her arms, so that her knees were drawn up to her body. After Brown was picked up in connection with the Perkins murder and confessed his guilt, he led officers to another dumpster a block from where the body was found. There they found a bag containing Janet Perkins’s missing shoe, a yellow plastic raincoat, and some of her school papers. The Ford jury also saw photographs of the little girl’s body and watched Brown’s videotaped confession to the Perkins murder. Brown was convicted of first degree murder in the Perkins case and sentenced to death. Finally, the jury was instructed to decide whether Brown committed acts of sodomy on his stepsons C.M., J.M., and T.J., who were about seven, five, and nine years old, respectively, at the time of the abuse to which they testified. C.M., age eleven at the time of the sentencing, testified that before Brown was arrested for the Perkins murder in October 1986, he would take C.M. alone into the bedroom Brown shared with C.M.’s mother and tell him to undress and lie on his stomach on the bed. Brown would undress, put “hair grease” on his penis, and put his penis in C.M.’s anus and then in his mouth. Id. at 2262. Brown committed these acts of sodomy on several different occasions. C.M. told no one about the incidents until Brown was in jail because Brown had said that if he told, he “would never see any of [his] brothers or [his] mother again.” Id. at 2264. J.M., nine years old when he testified, also explained to the jury how Brown had performed anal sex on him and said that Brown had threatened to “kill us” if he told anyone. Id. at 2288. Thirteen-year-old T.J. testified that Brown put his penis in T.J.’s anus and mouth and that Brown also put his mouth on T.J.’s penis. Id. at 2323. The boys said that Brown would commit the acts of sodomy when their mother was not at home, taking them one at a time from playing with their brothers and locking the door so that the boys who were not being victimized at the time could not come in. The jury found all four aggravating circumstances, unanimously, beyond a reasonable doubt. Brown’s defense team called a number of witnesses who gave mitigating evidence. First, the jury heard from Maggie and Donald Copien who knew Brown, his wife, and his wife’s sons (the children who testified for the State in the penalty phase). They became acquainted in 1981 (four years before the Ford murder, ten years before the trial) at Sunday school. The Coplens testified that the families spent two Christmases together, and Donald Co-pien said he and Brown delivered Christmas baskets to the needy one year. They saw each other socially an additional time or two. The Coplens also saw Brown regularly at church until he stopped attending in 1984 and became distant. They did not see him after that, although Maggie Co-pien said that she had visited him in the city jail and in state prison and was staying in touch with him. Both Coplens testified that they had not seen Brown physically abuse his wife or her sons during the time that they were in regular contact with him. Paul Sasser, a retired minister and former director of a homeless center that was affiliated with Brown’s church, became acquainted with Brown at the center. Brown began to help Sasser at the homeless center, first as a volunteer, then for a small salary, and lived with Sasser for a while. While working at the center, Brown had protected Sasser from angry or drunk clients who had threatened Sasser. Brown found his future wife and her three sons living on the streets and was concerned for them, according to Sasser, eventually taking them in. Sasser was still in contact with Brown at the time of the trial. Forensic social worker Jill Miller testified next. She had spent hours talking with Brown, his family, and others who knew him, and she. also had reviewed his educational, medical, and correctional records. She noted that Brown had refused educational and neurological testing that she had recommended for her use in preparing her testimony for the sentencing. From the school records, Miller gleaned that Brown had a borderline IQ, at best, and generally performed two to three grades below his grade level. She testified that he was close to his mother, brothers, and sister growing up, although his mother was strict. He was protective of his younger siblings (he was the oldest), sometimes taking the blame for things they had done so that they would not be punished. Personally, she found Brown to be “personable, pleasant, generally cooperative ... verbal, polite, but ... very guarded.” Trial Transcript at 2415. The jury then heard the testimony of three corrections officers. The supervisor of social services at the city jail when Brown was held there said Brown had made few requests of the staff and did not get in trouble for fighting. Also testifying were corrections officers from Potosí Correctional Center, where Brown had been incarcerated for about a year and a half before his trial for the Ford murder. A recreation supervisor said that Brown, an inmate worker at the prison, was “cooperative, self-motivated and honest” in the work setting. Id. at 2423. Brown got “along exceptionally well with the staff’ but would not have much to do with other prisoners. Id. Another Potosí officer who had substantial contact with Brown from the time Brown arrived testified that Brown was being held in minimum custody (although in a maximum security facility). His behavior was good, he avoided other inmates, and in one case, he literally ran from trouble when a fight broke out. In addition to the testimony of these live witnesses, Brown’s counsel read to the jury joint stipulations as to what the testimony of Janie Brown, Brown’s daughter, and Irvin Brimmage, who knew Brown as a teenager in Indianapolis, would be, had those witnesses been present in the courtroom to testify. Janie Brown was born when Brown was seventeen years old. She saw her father occasionally until she was ten, and she had not seen him since. She had, however, started to write to him in prison. Brown never behaved inappropriately around her. Brimmage met Brown when they were teenagers, and they became good friends. Although he was poor, Brown would share whatever money he had. Brown was helpful to older people, and Brimmage never saw him behave inappropriately around children. As a teenager, Brown did not abuse alcohol or drugs. Finally, there was an audiotape interview with Patricia Beverly, Brown’s mother, recorded at her home in Indianapolis late in 1990. She was unable to travel to St. Louis for the trial because she was totally disabled at the time. She had last seen Brown in 1984 when he came to visit her after she was injured. Beverly said that Brown was born at home after a problem pregnancy, two months early and following a difficult labor and delivery. He struggled in school, although he enjoyed some sports, ROTC, and wood shop. He eventually quit high school at age 16. Beverly said that she had three other sons, including one who was stationed in Saudi Arabia at the time of the interview, and one daughter. As the oldest, Brown was protective of them as they were growing up, such as when they were threatened by other children going to and from school. Brown tended to the needs of his grandmother after she had a stroke, essentially taking responsibility for her care while Beverly was at work. He was respectful of his grandparents and mother and regularly attended church where his grandfather was the minister. He married a woman in Indianapolis who already had children, and Beverly said he always treated those children well. After he moved to St. Louis, he would write and call Beverly; he continued to call once or twice a week from prison. As the interview was drawing to a close, Beverly said that she loved Brown, and she asked the jury to spare his life. A. We turn first to the state court’s Green adjudication. At the outset, we decline Brown’s invitation to revisit the trial court’s conclusion that the letter was hearsay under Missouri’s law of evidence. “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). We assume the state court properly applied state law. All that concern us are issues raised under the United States Constitution. In its review, the Missouri Supreme Court left undisturbed the trial court’s conclusion that the letter was not reliable, citing Green, which sets out the applicable federal law. Under Green, as we explained in Part I.A, the hearsay evidence in question must be “highly relevant to a critical issue in the punishment phase” and “substantial reasons [must exist] to assume its reliability’ before its exclusion will be deemed a due process violation. Green, 442 U.S. at 97, 99 S.Ct. 2150. Brown has not shown that the state courts’ conclusion is “opposite to that reached by” the Supreme Court in Green or any other case “on a question of law.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Likewise, Brown has not directed us to, and we have not found, a Supreme Court case with “materially indistinguishable” facts in which the Court reached a different result. Id. The Missouri Supreme Court decision is therefore not contrary to- clearly established federal law. We note again the brevity of the adjudication and its emphasis on the question of state law. This does not affect our determination that the result is not contrary to federal law. The Supreme Court advises us that the state court need not cite or even be aware of the governing Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). In the “contrary to” analysis of the state court’s decision, our focus is on the result and any reasoning that the court may have given;. the absence of reasoning is not a barrier to a denial of relief. Cf James, 187 F,3d at 869 (“The summary nature of the [state court] opinion does not affect this [AED-PA] standard of review.”). We now consider whether the decision was the result of an unreasonable application of federal law. The Green standard, the applicable law here, has two parts: relevance and reliability. The Missouri Supreme Court did not specifically address relevance. Indeed, there was no reason to, given its ruling on reliability, as the evidence must be both relevant and reliable. Nevertheless, we have considered the question and have determined that it is not an objectively unreasonable application of Green and its progeny to conclude on the facts of this case that the letter did not meet the first part of the Green standard, as it was not “highly relevant to a critical issue in the punishment phase.” Green, 442 U.S. at 97, 99 S:Ct. 2150. The issue in mitigation, to which the Turner letter would go, was Brown’s character. The letter had essentially two messages. First, Turner described how Brown protected Turner and his friends from older boys who chased them home from school, then taught Turner to stand on his “own two feet.” The letter conveyed the additional message that Turner loved Brown, although the brothers had been out of touch. Turner said that Brown had “too much good in him to let go of’ and that he, Turner, found it “very hard to believe” that Brown was guilty. We have no quarrel with the general propositions that a defendant’s character may be a “critical issue” in the sentencing phase of a death penalty case and that the testimony of relatives as to character may be “highly relevant.” Here, however, the situation is different. The only real example of Brown’s character that Turner gave, acknowledging that it “might not sound like much,” was an incident that occurred years before Brown murdered Synetta Ford, when Brown protected Turner from older boys. It is clear from the letter that Turner had not spent time with his brother since they were much younger, although they had reconnected through telephone calls and letters. We think it is an objectively reasonable application of Green to conclude that stale evidence of a convicted murderer’s character, evidence that harkens back to incidents or relationships of years past, well before the murder was committed, is not “highly relevant” to a “critical issue.” The degree of relevance is further diminished by the fact that, as described above, the jury had before it other evidence of Brown’s character. Indeed, the “aspect of [Brown’s] character” suggested by the letter — his efforts to protect those less able to protect themselves — was before the jury through the testimony of other witnesses. Lockett, 438 U.S. at 604, 98 S.Ct. 2954 (plurality opinion). As we noted above, the forensic social worker testified that she had spoken with Brown’s family, who described Brown as being “pretty protective of his younger brothers and sister.” Trial Transcript at 2413. Brown’s mother stated the same thing. Likewise, Paul Sasser testified that Brown protected him from belligerent patrons of the homeless center. That evidence is precisely the sort of evidence that Turner offered in his one memory of his relationship with Brown — Brown’s protection of people close to him — and is actually broadened beyond Turner’s recollection to include Brown’s friend and all of Brown’s siblings, not just Turner. Additional character testimony, as recited above, came from witnesses who apparently had more recent and frequent contact with Brown than Turner. Several of those witnesses recalled specific, positive incidents that were more contemporaneous both to the approximate time of the murder and to the time of sentencing. Finally, Turner’s love for his brother, his belief in Brown’s innocence, and his opinion that “God’s law” should decide Brown’s fate are subjective feelings that cannot be deemed “highly relevant” under Green to the question of Brown’s character, and it would not be objectively unreasonable to so conclude. On this record, we cannot say that it is an unreasonable application of clearly established law to conclude that the Turner letter was not “highly relevant to a critical issue” at Brown’s sentencing. The Missouri Supreme Court did mention the letter’s reliability, deferring to the trial court’s uncertainty “as to the authenticity of the letter.” Brown, 998 S.W.2d at 549. Under Green, excluding otherwise inadmissible hearsay will result in a violation of due process if the evidence is not only relevant but also “substantial reasons existed to assume its reliability.” We hold that the circumstances surrounding the letter do not make it contrary to or an unreasonable application of clearly established federal law for the state courts to have concluded there were not “substantial reasons ... to assume its reliability.” The Supreme Court opinion dealing with reliability that Brown cites in his brief is Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). At issue in that case was the exclusion of the testimony of three witnesses that someone other than the petitioner had confessed to them the crime for which the petitioner was being tried. The petitioner also alleged that his constitutional right to confront a witness had been violated. The Chambers Court noted that the statements in question “were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” Id. at 300, 93 S.Ct. 1038 (noting that the statements were spontaneous, made to several people, corroborated, and against interest, and that the person who purportedly made the out-of-court statements was in the courtroom and could be called to testify). Moreover, the witnesses’ testimony went directly to the question of guilt or innocence. On the facts of this case, we do not think it is contrary to or an objectively unreasonable application of Chambers (or any other Supreme Court case that we have identified, for that matter) for the state courts to have concluded there were not “substantial reasons” to assume the Turner letter’s reliability, that is, that the letter’s reliability could not be assured because it was not submitted as a sworn affidavit. We may believe the state courts got it wrong, but that is not our call to make. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411, 120 S.Ct. 1495. We hold that the state courts’ decision on the question of reliability is not contrary to or an unreasonable application of Green. B. As for Chapman prejudice, the Missouri Supreme Court had before it the transcript of Brown’s trial and sentencing, and noted that its decision was made “in the context of this case.” Brown, 998 S.W.2d at 550. As we have demonstrated, there was before the jury extensive evidence of aggravating circumstances, as well as mitigating character evidence to which the Turner letter was cumulative. In addition, as we have said, the jury heard from character witnesses who had more recent contact with Brown, including three correctional officers who testified to his model behavior while incarcerated. The Missouri Supreme Court might have been a bit more forceful in its conclusion, where it stated that- the letter’s exclusion did not “seem prejudicial.” Id. at 550. But we do not think the state court was expressing ambivalence or anything less than an unequivocal conclusion of law, although perhaps not in the strongest terms. In any event, that court’s use of “seem” does not make the decision contrary to any Supreme Court precedent. Likewise, we hold that the result of the Missouri Supreme Court’s application of the Chapman harmless-error standard, given the record in this case, is not objectively unreasonable. III. If we have misjudged congressional intent and the Supreme Court’s interpretation of “adjudicated on the merits” for purposes of § 2254, we nevertheless would hold that the District Court’s decision should be affirmed under the pre-AEDPA standard of review. See Robinson v. Crist, 278 F.3d 862, 865 (8th Cir.2002) (“Because this claim apparently was not adjudicated by the [state] court, we likely should apply the pre-AEDPA standard of review.”). We have gone to some lengths in Part II of our opinion to describe the law applicable to Brown’s claim and the facts related to it in order to explain why we reject his claim that the Missouri Supreme Court’s decision was contrary to or an unreasonable application of clearly established federal law. Little more needs to be said here. For the reasons we have already explained in some detail, we do not think Brown has shown that the Turner letter was “highly relevant to a critical issue” in his sentencing. While we may be less certain under the pre-AEDPA standard of review about the state courts’ decision that Brown failed to show “substantial reasons” to conclude that the letter was reliable, we need not decide the question because the relevance standard cannot be met. In any event, we are confident that the exclusion of the letter was harmless beyond a reasonable doubt. “A constitutional error is harmless when ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ’ ” Mitchell v. Esparza, - U.S. -, -, 124 S.Ct. 7, 12, 157 L.Ed.2d 263 (2004) (citations to quoted cases omitted). As we have explained, the Turner letter’s statements, to the extent they may be relevant, were cumulative to evidence as to- Brown’s character that was already before the jury. Moreover, the evidence of aggravating circumstances was devastating. This is not a case, like Chambers, where the evidence in question was highly relevant to actual guilt or innocence. The Turner letter was not offered to prove that Brown was actually innocent, either of the crime or of the death penalty. Here, Brown received the constitutionally required “individualized consideration” before the death penalty was imposed. Lockett, 438 U.S. at 605, 98 S.Ct. 2954 (plurality opinion). In these circumstances, we are convinced beyond a reasonable doubt that the admission of the letter would not have altered the jury’s decision to impose the death penalty on Brown, and thus its exclusion was harmless error at most. The judgment of the District Court denying the writ bn any and all of Brown’s claims is affirmed.

The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

This is what the Missouri Supreme Court said in deciding Brown’s claim of state-law error as well as his claim that the exclusion of the letter violated his rights under the Due Process Clause: Brown contends that the trial court abused its discretion in the penalty phase when it refused to allow his counsel to read into evidence a letter about him that was written by his brother, Darius Turner. Turner was stationed in Saudi Arabia during the Operation Desert Shield as a member of the United States Army at the time of trial. The state objected to the introduction of the letter because the letter is inadmissible hearsay that was unreliable. Brown alleges that the letter should have been read into evidence pursuant to State v. Phillips and Green v. Georgia. The determination of reliability is left to the trial court judge who was uncertain as to the authenticity of the letter. We uphold his ruling and note that even if he was wrong about the letter's reliability, its exclusion does not in the context of this case seem prejudicial. State v. Brown, 998 S.W.2d 531, 549-50(Mo.) (en banc) (citations omitted), cert. denied, 528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337 (1999).

Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194, 10 L.Ed.2d 215 (1963) (prosecutorial suppression of evidence favorable to the accused).

In Lockett, the petitioner challenged a state death penalty statute that "did not permit the sentencing judge to consider, as mitigating factors, [the petitioner's] character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime." 438 U.S. at 597, 98 S.Ct. 2954 (plurality opinion). The Court concluded that' the Constitution requires "that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record ... that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. 2954.

We are assuming that the Chapman harmless-error standard applies here. See Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir.1997) (noting Supreme Court cases "implying that harmless-error analysis applies to Lockett errors”), cert. denied, 523 U.S. 1010, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998).

Brown throws the language from § 2254(d)(2), "unreasonable determination of the facts,” into his claim, but he does not argue the facts. It appears to us that the underlying material facts are a matter of record and are not disputed.

The witnesses who testified about relationships they had with Brown in the early 1980s knew him as Thomas Turner.

To the extent Brown suggests that the jury would have found mitigating circumstances in Turner's service to his country in the Gulf War, that is, in deeds of Turner that have no relevance to Brown, his crime, his character, or. his relationship with Turner, we hold that is not proper mitigation evidence.

The Supreme Court since Chambers has noted that the opinion "was an exercise in highly case-specific error correction.” Montana v. Egelhoff, 518 U.S. 37, 52, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion). The Egelhoff Court went on to say that "the holding of Chambers — if one can be discerned from such a fact-intensive case — is certainly not that a defendant is denied ‘a fair opportunity to defend against the State's accusations’ whenever 'critical evidence’ favorable to him is excluded, but rather that erroneous eviden-tiary rulings can, in combination, rise to the level of a due process violation.” Id. at 53, 116 S.Ct. 2013 (emphasis added). [OPINION BY WOLLMAN, Circuit Judge, type=concurrence] WOLLMAN, Circuit Judge, with whom MURPHY, Circuit Judge, joins, concurring in the judgment.

I agree with the court that because Brown’s constitutional claim was adjudicated on the merits in state court, AEDPA’s § 2254(d) standard of review should apply. I also agree that any error in excluding the Turner letter was harmless beyond a reasonable doubt. For the reasons so persuasively advanced in Judge Richard Arnold’s dissent, however, I cannot agree that the letter was properly excluded on either relevancy or reliability grounds. Accordingly, I concur in the judgment affirming the denial of the writ. [OPINION BY COLLOTON, Circuit Judge, type=concurrence] COLLOTON, Circuit Judge, concurring. I join the opinion of the court, but add a few points to clarify my views. It is quite reasonable to ask, as does the dissent, whether the AEDPA-standard issue is properly before the en banc court, if the state did not assert before the three-judge panel that 28 U.S.C. § 2254(d) should apply to review of the state court’s adjudications. It must be remembered, however, that as this case first came to the en banc court on a petition for rehearing, a panel of the court already had reached and decided the question whether § 2254(d) applied in this case. Brown v. Luebbers, 344 F.3d 770, 785 (8th Cir.2003). At that point, the panel opinion established the law of the circuit on the AEDPA-standard issue, regardless what the parties had asserted in their briefs, and I believe it was properly the business of the en banc court to decide whether the panel opinion should remain the law of the circuit on that-issue. If the panel opinion merely had reported a concession or waiver by the state in this case, and left the AEDPA-standard issue for another day, then the matter of judicial administration might be resolved differently- Harmless error analysis is sufficient to resolve this case, but with brief amplification, I also join the court’s conclusion that the state court proceedings did not result in a decision that involved an unreasonable application of Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam). With respect to reliability of the disputed letter, it is true that the Missouri Supreme Court referred to the trial court’s uncertainty as to the authenticity of the letter, while the trial court did not appear to rely on authenticity in excluding the letter. On the other hand, the trial judge did say that he rejected the letter because it was unsworn hearsay— “We’re not talking about depositions where a man is under oath, you’re talking about a letter, plain and simple,” (Tr. 2443) — and the state supreme court said more generally that “[w]e uphold his ruling,” which the court said was “about the letter’s reliability.” State v. Brown, 998 S.W.2d 531, 549 (Mo.1999) (en banc). If we were reviewing the decision of the Missouri Supreme Court as though it were an administrative agency, then it may well be that the unclear reasoning of the state court would be inadequate to sustain its judgment on the issue of reliability without further explanation. I understand the court, however, to join our sister circuits in rejecting this model of judicial review, which would tend to “place the federal court in just the kind of tutelary relation to the state courts that the recent amendments are designed to end.” Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.1997); see also Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir.2000) (en banc); Bui v. DiPaolo, 170 F.3d 232, 243 (1st Cir.1999), • Under AEDPA, the question for a federal habeas court is not whether the state court’s opinion is well reasoned, but whether the decision reached in state court proceedings is “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The rule of reliability established by Green is quite general in nature, and state courts thus have a good deal of leeway in reaching reasonable outcomes. Yarborough v. Alvarado, — U.S. -, 124 S.Ct. 2140, 158 L.Ed. 2d 938 (2004). On this understanding, I agree with the court that the decision of the Missouri state courts to exclude hearsay contained in' an unsworn letter, while perhaps incorrect if reviewed de novo, does not represent an unreasonable application of federal law as determined by the Supreme Court of the United States. See Buchanan v. Angelone, 103 F.3d 344, 348-49 (4th Cir.1996), aff'd on other grounds, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); Alley v. Bell, 307 F.3d 380, 398-99 (6th Cir.2002); Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir.1995). [OPINION BY RICHARD S. ARNOLD, Circuit Judge, type=dissent] RICHARD S. ARNOLD, Circuit Judge, with whom BYE and MELLOY, Circuit Judges, join, dissenting. I respectfully dissent. In my opinion, Vernon. Brown is entitled to relief on his habeas corpus petition because during the penalty phase, the trial judge excluded the letter written by Mr. Brown’s brother. I would therefore vacate Mr. Brown’s sentence. Mr. Brown’s conviction would of course stand. Unless the state sought to retry the penalty phase within a reasonable time to be set by the District Court, he would be in prison for life. I believe the Court is mistaken in concluding that the state trial court made no constitutionally significant errors in the penalty phase of Mr. Brown’s trial. In my view, the trial court violated petitioner’s rights under both the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment by excluding as hearsay a letter written by his brother, Mr. Darius Q. Turner, who was on active duty in the United States Army serving in the Middle East as part of Operation Desert Shield during petitioner’s trial. Petitioner wanted the jury to see the letter as mitigating evidence. This Court discounts both the reliability and relevance of the letter, and I respectfully disagree. Under the amended AEDPA standard, our Court may grant habeas relief if a state court decision is either contrary to federal law or involves an unreasonable application of federal law. 28 U.S.C. § 2254(d). Mr. Brown alleges that the exclusion of the letter violated both the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 978 (1978) (plurality opinion), and later cases, the Supreme Court established that the Eighth Amendment guarantees a capital defendant the right to introduce all relevant mitigating evidence in the penalty phase. The Court noted that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98 S.Ct. 2954; see also Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The Supreme Court has also held that the Due Process Clause requires that a state’s rules of evidence not be applied mechanically when doing so would preclude the defendant from introducing relevant evidence at the penalty phase. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“[T]he hearsay rule may not be applied mechanistically to defeat the ends of justice.”). Thus, the exclusion of hearsay testimony at the penalty phase of a death penalty case violates the Due Process Clause of the Fourteenth Amendment where “[t]he excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability.” Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam) (citations omitted). The first question is whether the AED-PA-standard issue is properly before us as a matter of judicial administration. I think the answer is no, and the procedural history of the case is instructive on the point. In briefs submitted to the three-judge panel that initially cited Mr. Brown’s case, the state did not assert that it should be governed by the AEDPA standard. In fact, this particular question was not controversial before the panel. Both the panel majority and the dissent (as the Court today acknowledges) hold, or at least assume, that the AEDPA standard does not apply, because the Missouri Supreme Court had not reached the merits. The first time the applicability of the AEDPA standard was urged was in the state’s petition for rehearing en banc. Petitioner was reduced to the last-minute expedient of placing his entire argument on this point in the response to the petition for rehearing en banc. No supplemental briefing was allowed prior to the oral argument on rehearing en banc. I am not questioning at all the power of this Court to decide the issue. Courts often (sometimes too often, it seems) decide issues that are somewhat irregularly before them — for example, an issue not properly raised in the court below. But that is certainly not the normal practice. I am not saying that proceedings .before three-judge panels are analogous in every respect to proceedings in lower courts, but there is a certain similarity. The state, like petitioner, should be required to come with all of its guns loaded the first time. This it has not done. Instead, it has saved one bullet. I do not think this practice should be encouraged, even though the effect of the argument is to affirm the judgment of a district court. Assuming we decide the standard-of-review question, what is the answer? The standard set out in AEDPA — that the holding of the state court cannot be set aside unless it was contrary to clearly established law as set forth in opinions of the Supreme Court of the United States, or was unreasonable in light of the facts in the state-court record — is crucial here. This standard, more difficult for habeas petitioners, comes into play, however, only if the state court decided the federal constitutional issue on its merits. In deciding this question, it is critical to examine closely the opinion of the Supreme Court of Missouri. In my view, the Missouri Supreme Court did not clearly decide the case on federal grounds. The relevant passage from the opinion of the Missouri Supreme Court is set forth by this Court ante, at 460-61 n. 2. The Court rightly recognizes two separate legal issues: whether the letter was unreliable, and whether its exclusion was prejudicial. As to unreliability, the opinion clearly reads, with the exception of a citation to Green, like a garden-variety state-evidence-law issue. The first sentence of the quoted part of the Missouri Supreme Court opinion says: “Brown contends that the trial court abused its discretion in the penalty phase when it refused to allow his counsel to read into evidence a letter about him that was written by his brother, Darius Turner.” State v. Brown, 998 S.W.2d 631, 549 (en banc); cert. denied, 528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337 (1999). The state court does not explain what it believes Green stands for, or how it helps the position taken by the State of Missouri. I believe a habeas petitioner is entitled to a more thorough answer. Indeed, it must have been with such a situation in mind that Congress included the “on the merits” language. The more attention the state court appears to have given the federal issue, the more its decision is entitled to respect. As to the prejudice holding, I do not see any “holding,” properly so called, at all in the state court’s opinion. The Missouri Supreme Court’s discussion of prejudice says only that admission of the letter did not seem prejudicial. This is not a holding, but simply an off-the-cuff observation made in passing. So we come to the merits, applying, according to my way of thinking, pre-AEDPA law. In my opinion, regardless of whether the letter constituted hearsay, its exclusion violated Mr. Brown’s due-process rights. The Green standard involves a two-part inquiry, requiring a court to determine whether evidence relevant to a critical issue at the punishment phase is both relevant and reliable. Green, 442 U.S. at 97, 99 S.Ct. 2150. If such evidence is both relevant and reliable, -its exclusion at the punishment phase is reversible error. Ibid. Here, the letter was highly relevant to a critical issue, petitioner’s character, at the punishment phase and no substantial reasons existed not to assume its reliability. This Court acknowledges that the Missouri Supreme Court did not specifically address relevance. This notwithstanding, this Court concludes that the letter was not relevant to a critical issue because the letter contained “stale evidence” of petitioner’s relationship with his brother. I disagree with this characterization of the contents of the letter, and do not join the Court in its conclusion that “evidence that harkens back to incidents or relationships of years past, well before the murder was committed, is not ‘highly relevant’ to a ‘critical issue.’ ” Indeed, if courts were to follow this standard, I doubt that much mitigating evidence of a defendant’s character could ever be admitted. No better method of describing a person’s character likely exists than by recounting incidents and interactions of years past. The Court also intimates that the character evidence contained in the letter was repetitive of other evidence already before the jury. I disagree with this conclusion. It appears from the letter’s contents that petitioner and his brother shared a unique, although often distant, relationship that was unlike that which he shared with any other witness whose testimony was admitted. Furthermore, I am convinced that its effect on the jury would have been greater than the other mitigating evidence petitioner presented. Mr. Turner was not only a member of the armed services on active duty, he was also serving in the Gulf War, and over and over again during the trial, on the record, and in the presence of the jury, the Court praised the performance of our troops in the Gulf War. Theirs is the highest example of patriotism, the Court says. But the minute the defendant adduces evidence of this kind in his favor, the Court takes a completely different stance. I think the jury’s opinion of Mr. Brown might well have risen dramatically if it had known about the letter. As to the reliability of the letter, this Court refers to the Missouri Supreme Court’s deference to the trial court’s uncertainty of the letter’s authenticity. I am troubled by this. The Missouri Supreme Court appears to defer to a finding that was not made by the trial judge. When the prosecution objected to the admission of the letter, the trial judge relied on state evidence law, not lack of authenticity, to exclude the letter. Specifically, the trial judge stated: “I have no problems with the authenticity of [the letter] except that it’s just not admissible even if this was an affidavit. The law is clear even an affidavit in the absence of a consent by both parties is not admissible, now that’s evi-dentiary law.” Tr. 2443. I am unpersuaded that the trial judge believed the letter was unauthentic and find no basis upon which it would be considered unauthentic. Furthermore, the letter’s return address was to “SFC Darius Q. Turner, HLM 801st MAINT BN, 101st ABN DIV (AASLT), APO NY 09309” and the letter’s postmark indicates that it was sent from the United States Army. I therefore believe that “substantial reasons existed to assume [the letter’s] reliability” and that due process required its admission because it was highly relevant to a critical issue. Green, 442 U.S. at 97, 99 S.Ct. 2150. The exclusion of Mr. Turner’s letter was not harmless. “A constitutional error is harmless when ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ’ ” Mitchell v. Esparza, 540 U.S. 12,-, 124 S.Ct. 7, 12, 157 L.Ed.2d 263 (2004) (internal quotations omitted). The critical issue in the penalty phase of Mr. Brown’s trial was his character. The State of Missouri aimed to convince the jury that petitioner was a bad person. Petitioner’s attorneys, on the other hand, attempted to prove that although he had committed bad acts, petitioner was a man whose life was worth saving. Mr. Turner’s letter seems highly relevant in itself, and it would have been even more compelling than the other mitigating evidence because its author was a member of the armed services on active duty in time of war. Thus, I conclude that the exclusion of Mr. Turner’s letter violated Mr. Brown’s rights under the Eighth and Fourteenth Amendments and that, upon applying the proper prejudice standard, the exclusion was not harmless.