George Mercer

Case details

George C. "Tiny" Mercer (August 31, 1944 – January 6, 1989) was convicted of the rape and murder of Karen Keeton, a 22-year-old tavern waitress, in Belton, Missouri, on August 31, 1978. Mercer was executed by the state of Missouri by lethal injection at the age of 44.

At the time of the murder, Mercer had a charge pending against him of raping a 17-year-old girl.

Timeline

• August 31, 1944 — George C. "Tiny" Mercer was born.
• August 31, 1978 — Mercer was convicted of the rape and murder of Karen Keeton.
• 1981 — Mercer stated in an interview that he did not kill the woman and said, "The old Tiny is dead now," and that "The Lord's done this to me."
• June 13, 1988 — The U.S. Court of Appeals for the Eighth Circuit affirmed the denial of habeas relief in George Mercer, Appellant, v. Bill Armontrout, Warden, Missouri State Penitentiary, Appellee (No. 86-2593).
• December 30, 1988 — The U.S. Court of Appeals for the Eighth Circuit denied a certificate of probable cause and ordered that the previous order to stay execution be vacated (No. 88-2547).
• October 13, 1988 — Mercer filed a second petition for a writ of habeas corpus in the district court for the Western District of Missouri.
• October 20, 1988 — The Supreme Court of Missouri set October 20, 1988, at 12:01 a.m. as the new date for execution of sentence.
• October 19, 1988 — A motion to stay execution was temporarily granted because the panel could not adequately review the material prior to the designated time of execution.
• January 6, 1989 — Mercer was executed by lethal injection in Missouri.

The offence

Karen Keeton was raped and killed in the early morning hours of August 31, 1978.

The evidence described that Mercer was drinking with friends at the Blue Seven Lounge in Grandview, Missouri, the evening before. Keeton worked there as a waitress. Mercer mentioned to his friends that he would like to have sexual intercourse with Keeton that evening.

Stephen Gardner, a friend of Mercer who was acquainted with Karen, talked to her at the bar. Gardner returned and said he and Karen were going to breakfast and would go to Mercer’s house afterward. Gardner brought Keeton to Mercer’s home.

At Mercer’s home in Belton, Missouri, John Campbell was there babysitting with Mercer’s ten-year-old daughter. After Gardner and Karen Keeton arrived, Mercer picked up a sawed-off double-barreled shotgun, opened it to show the shells, walked over to Karen, tapped her on the head with the gun, and told her to "get her ass upstairs." When she hesitated, he grabbed her and pushed her to the stairway. Karen yelled for Gardner to help. Gardner responded, "Happy Birthday, Tiny," then turned to the others and said, "Seconds."

Karen's dress was tossed downstairs with Mercer telling Gardner to "put these clothes where they go, you know where they go." Gardner put the clothes in a closet and pocketed the money from her purse. Mercer later came downstairs naked and with an erection. Gardner went upstairs. Mercer drank beer for awhile, showered, and returned to the table to dry himself, where he remarked what "a good piece of ass" she was and that he was going to go back and "fuck her in the butt."

Several minutes later, Gardner yelled for David Gee to come upstairs. Gee, followed by Mercer and John Campbell, went upstairs. Mercer told Karen, who was lying naked on the bed, to undress Gee and "start sucking David Gee's dick." She performed as directed. After Gee answered, "Pretty good", to Mercer’s question about her performance, Mercer said, "You leaky cunt, you'd better do it better." When asked how she was doing now, Gee answered, "Better now."

Gardner, Gee, and Campbell then returned downstairs. Karen stopped what she was doing, and Gee put his clothes on. Karen asked what was going to happen to her; Gee attempted to reassure her. When Gee returned downstairs, Mercer told Campbell to get upstairs so they would all be in it together. Campbell proceeded upstairs and found Karen unclothed. She cried, and Campbell talked with her trying to console her. Campbell returned downstairs. Mercer started upstairs again as Gardner was leaving. Mercer asked Gardner what he wanted done with Karen, and Gardner replied, "Kill the bitch." Mercer said, "Okay, brother." Gardner asked if he would need any help; Mercer said no, he would get rid of the body where it would not be found.

Gardner and Gee left; Mercer went upstairs, and Campbell went to sleep downstairs. Campbell was awakened by Mercer calling his name from upstairs. Campbell responded and found Mercer straddling Karen’s body with his hands on her throat. Mercer screamed at Campbell to take her pulse. Campbell grabbed the arm of Karen’s seemingly lifeless body and found a faint pulse. Campbell told Mercer this while he could smell human waste, which was all over the bed. Campbell reported no pulse after being instructed again to take it; Mercer then got off the bed, grabbed Karen's legs, and pulled her off the bed.

Mercer took the sheets and blanket to a washing machine and told Campbell to wipe the waste off the floor. Mercer told Campbell to get his truck and put the tailgate down so he could put Karen in it. Campbell complied; Mercer brought the body down and put it in the truck. Campbell and Mercer climbed in the truck and Campbell started driving at Mercer’s direction. Mercer ordered the truck stop at some point. Mercer got out and dumped the body over a fence into a field. When he returned, Mercer told Campbell: "Now, if I'd killed that leaky cunt 17-year-old like I did her ... I wouldn't have been on any rape charges and things I'm on right now."

At that time, Mercer had a rape charge pending against him filed by a 17-year-old girl.

Mercer and Campbell returned to Mercer’s house where Mercer gave Campbell the shotgun to hide and burned Karen’s purse.

Cause of death and contested points

The case facts included that the jury determined beyond a reasonable doubt that Mercer strangled the victim to death. In Mercer’s later habeas arguments, the cause of death had been disputed at trial; Mercer claimed the medical report made on the victim’s death was inconclusive and inconsistent and argued that John Campbell actually murdered the victim.

Campbell later testified that Mercer said, "I wouldn't be in the trouble I'm in today if I'd killed that other bitch on the rape." After strangling Keeton, Mercer put her body in the back of John Campbell's pickup truck and ordered Campbell to drive; he then discarded the body off to the side of the road.

Victim discovery and identification

Three to four weeks later, Campbell and his attorney looked for and found the badly decomposed body of Karen Keeton. They reported this to the authorities. The body was identified by means of her teeth.

Investigation and evidence presented at trial

The evidence established that Mercer was drinking with friends at the Blue Seven Lounge in Grandview, Missouri, and that Keeton worked there as a waitress. Mercer mentioned that he would like to take her to bed.

The evidence included actions at Mercer’s home, including forcible sex at gunpoint, then killing by strangling. The evidence included the interactions among Mercer, Gardner, Gee, and Campbell and involved a sawed-off double-barreled shotgun.

The evidence also included Mercer’s later statements about the killing, including the statement that he would not have been on rape charges and things he was on right now if he had killed a 17-year-old girl like he did Keeton.

The evidence also included that the rape of Keeton was followed by strangling and the hiding of her body in a field.

Arrest and charging

After being rape and murder convictions, the case included that Mercer was found guilty of capital murder under Mo.Rev.Stat. Sec. 565.001 (1978) and sentenced to death after a five-day jury trial.

Mercer had an additional pending rape charge at the time of the killing, filed by a 17-year-old girl, and he was also being prosecuted for the rape of Debbie Middleton at the time he was found to have raped and murdered Keeton.

Trial

Verdict and sentencing

Mercer was found guilty of capital murder under Mo.Rev.Stat. Sec.

Aggravating factors

One of the two aggravating factors the jury relied upon in sentencing Mercer to death was "agency," i.e., that Mercer was acting at the direction of Gardner. The case discussion cited Mo.Rev.Stat. Sec. 565.012.2(6) (1978) as the agency aggravator.

The two aggravating factors were described as:

• Mo.Rev.Stat. Sec. 565.012.2(7) Depravity of Mind ("the offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind")
• Mo.Rev.Stat. Sec. 565.012.2(6) Murder as an Agent ("[t]he offender caused or directed another to commit murder or committed capital murder as an agent or employee of another person")

Mercer did not challenge the jury's finding that the murder was depraved in the appellate habeas arguments described.

The depravity instruction was described as reading:

"In determining the punishment to be assessed against the defendant for the murder of Karen Keeton, you must first unanimously determine that ... the murder of Karen Keeton involved depravity of mind and that as a result thereof it was outrageously or wantonly vile and inhuman."

This instruction was discussed under Mo.Rev.Stat. Sec. 565.012.2(7) (repealed).

Jury selection

A juror named Bumgarner was disqualified for cause. The exchange quoted in the case was:

Q [By Mr. Hamilton]. Mr Bumgarner, this is a charge of capital murder, which means that it does carry the possibility of capital punishment, or the death sentence. My inquiry is directed to find out what your attitude is toward capital punishment. If, during the trial of this case the facts and circumstances were developed that in fact the jury could consider capital punishment, would you, as a juror, consider capital punishment as a possible alternative?
A [By Mr. Bumgarner]. I don't think so.
Q. Are you morally and religiously opposed to capital punishment?
A. Yes.
Q. And you feel you couldn't bring back a sentence of--the death sentence under any circumstances?
A. I don't think so.
Q. So regardless of how severe and aggravated the circumstances are, you don't feel that you could bring back a death penalty?
A. I don't believe I could.
MR. HAMILTON: Thank you, sir. I have no other questions.
MR. FIORELLA: We would have no questions of Mr. Bumgarner. (Venireman excused.)
THE COURT: Any challenge for cause against Harry Bumgarner?
MR. HAMILTON: The state challenges him for cause.
MR. LOZANO: Our position on the previous grounds, Judge.
THE COURT: The state's challenge of Harry Bumgarner for cause is granted. He will be excused for cause. Tr. at 169-70

Mercer alleged that the district court committed reversible error by failing to inquire whether juror Bumgarner could follow the law despite his personal views. The Missouri Supreme Court found that Bumgarner's response was unequivocal; he could not impose the death penalty or at least would be substantially impaired in doing so.

Introduction of prior prosecution

After Mercer strangled Keeton to death, the case included Mercer’s statement to John Campbell that he would not be in trouble if he had killed "that other bitch on the rape."

The State sought to corroborate Campbell’s testimony by introducing evidence that Mercer was being prosecuted for raping Debbie Middleton. Mercer had allegedly raped Middleton a month prior to raping and strangling Keeton. The State desired to have Middleton testify, but Mercer’s attorneys agreed to a stipulation that Mercer was currently being prosecuted for raping Middleton.

Mercer later claimed he was forced into making this stipulation and argued that admitting proof of the prior prosecution violated his right to due process and was fundamentally unfair. The later appellate discussion included that trial courts generally allowed evidence of prior convictions but generally did not allow prior arrests, and the trial court admitted the prior prosecution as relevant to motive.

Appeals and post-conviction proceedings

Direct review and state post-conviction

The judgment of conviction was affirmed by the Supreme Court of Missouri in State v. Mercer, 618 S.W.2d 1 (Mo.), and the U.S. Supreme Court denied certiorari in cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981). Mercer later filed a petition for a writ of habeas corpus and state post-conviction proceedings were described, including that Mercer was denied relief in state post-conviction proceedings (Mercer v. State, 666 S.W.2d 942 (Mo.App.1984)).

Federal habeas appeal: Mercer v. Armontrout (No. 86-2593)

The U.S. Court of Appeals for the Eighth Circuit described that Mercer filed a federal habeas petition after remand. The district court denied habeas relief (643 F.Supp. 1021 (1986)). Mercer appealed and sought habeas relief on three grounds:

1. insufficiency of the evidence showing aggravating circumstances under Missouri law,
2. improper selection of the jury, and
3. admission into evidence of a prior prosecution for rape.

The court affirmed the denial of issuance of a writ of habeas corpus.

Ground 1: agency as aggravating factor

One aggravating factor was "agency," and Mercer argued that agency was not established. The appellate court discussed that the jury had before it evidence that Mercer turned twice to Gardner and asked what to do with Keeton, then strangled her after Gardner instructed him to murder Keeton. The court also discussed evidence that Gardner, Gee, and Mercer worked together at Industrial Roofing where Gardner was a foreman. The Missouri Supreme Court affirmed the jury’s findings.

The appellate court held it would presume the state court’s findings correct and that Mercer had not introduced convincing evidence that the jury’s factual determination was clearly erroneous. The appellate court also stated that aggravating factors were not constitutionally invalid so long as there was a factual basis and they channel the jury’s discretion. The court concluded it would leave agency undisturbed and noted that even if one aggravating factor were invalid, the sentence need not be overturned where another aggravating circumstance remained, citing Missouri law and Supreme Court harmless error principles.

Ground 2: jury selection for cause

Mercer challenged the disqualification of a prospective juror who opposed capital punishment. The appellate court discussed Witherspoon v. Illinois and later Wainwright v. Witt, including a quoted excerpt from Witt involving a juror named Colby. The appellate court described that Mercer alleged that the district court failed to inquire whether Bumgarner could follow the law despite personal views. The court concluded it agreed with the district court because Bumgarner’s response was found unequivocal by the Missouri Supreme Court.

Ground 3: prior prosecution stipulation

The appellate court discussed the State’s theory that the prior prosecution for rape was relevant to motive to avoid being prosecuted. It discussed that Campbell had testified Mercer wished he had killed "that leaky cunt seventeen-year-old" as he had Keeton, and that the stipulation corroborated Campbell’s testimony and explained the importance of Mercer’s statement. The appellate court applied a due process standard and held it found no error that could be said to have fatally infected the trial which resulted in denial of a fair trial.

Federal appeal on successive petition and certificate of probable cause: (No. 88-2547)

Mercer’s second petition for a writ of habeas corpus was described as raising new issues relating to ineffective assistance of counsel. The U.S. Court of Appeals for the Eighth Circuit addressed procedural standards for successive petitions, exhaustion and procedural default rules, and standards for granting a stay.

The Supreme Court of Missouri set a new execution date and Mercer filed a second petition for a writ of habeas corpus in the district court for the Western District of Missouri on October 13, 1988. The district court summarily dismissed the petition and denied a request for a stay of execution. An appeal followed; a motion to stay execution was temporarily granted because it was presented at a time when the panel could not adequately review the material prior to the designated time of execution.

The appellate court denied a certificate of probable cause and ordered that the previous order to stay execution be vacated. Leave to appeal in forma pauperis was denied and the appeal was dismissed, and the mandate was to issue forthwith.

Certificate of probable cause analysis

Mercer’s claims in the second habeas petition included that:

• the prosecution withheld mitigating evidence,
• the depravity of mind instruction was unconstitutional,
• he received ineffective assistance of counsel.

The appellate court reviewed claims to determine whether they prejudicially undermined the accuracy of guilt or sentencing determination. It stated the standard for a certificate of probable cause required constitutional claims debatable among reasonable jurists (Barefoot v. Estelle).

Withheld mitigation evidence

Mercer contended that the prosecution withheld evidence that the victim had engaged in the illegal use and sale of drugs. He argued this evidence could prove that her death was caused by drugs or, alternatively, by John Campbell. The appellate discussion stated that the cause of death was disputed at trial and Mercer argued the medical report was inconclusive and inconsistent and that John Campbell actually murdered the victim. The appellate court concluded the withheld evidence argument could not succeed because the jury determined beyond a reasonable doubt that Mercer strangled the victim to death, and it would be unreasonable to conclude the presentation of the allegedly withheld evidence would have led to a different outcome.

Depravity of mind instruction

Mercer contended that the depravity of mind instruction was unconstitutionally vague. The appellate discussion stated that the instruction had been previously reviewed and upheld, but Mercer argued that the Supreme Court had redefined the law in this area. It discussed Maynard v. Cartwright and concluded that the constitutionality of the Missouri instruction remained intact. The appellate court also cited the requirement that the jury find depravity of mind in addition to outrageous or wanton and inhuman conduct, distinguishing the case from Cartwright.

Ineffective assistance of counsel

Mercer raised claims of ineffective assistance of trial counsel in the second habeas petition and argued those claims were not contained in the initial petition because he was still represented by trial counsel, Cenobio Lozano, who failed to allege ineffective assistance due to an obvious conflict of interest. The appellate court concluded that the claims did not demonstrate a colorable showing of actual innocence or that sentencing was undermined.

It described claims that counsel:

• failed to discover and present evidence relating to the victim’s alleged illegal use and sale of drugs,
• failed to present a forensic pathologist to testify about the condition of the victim’s body,
• erred in recommending that he waive instructions on lesser included offenses, including first degree murder and felony-murder,
• failed to develop and present evidence of mitigating circumstances, including a diminished capacity theory due to alcohol consumption.

The appellate court discussed that it was highly improbable such evidence would have changed the outcome and that counsel’s decision not to pursue a defense based on alcohol consumption did not prejudice Mercer. It also described that the Missouri Court of Appeals found Mercer and his counsel expressly waived lesser included offense instructions and that the trial transcript showed Mercer waived those instructions on two separate occasions.

Other details

Persons referenced in the offence and trial record

The case facts described multiple participants and witnesses:

• Karen Keeton, the 22-year-old victim, described as a tavern waitress.
• George C. "Tiny" Mercer, the defendant.
• Stephen Gardner, described as Mercer’s friend and acquainted with Karen; later described as telling Mercer to murder Karen and as a foreman at Industrial Roofing.
• John Campbell, described as babysitting at Mercer’s home with Mercer’s ten-year-old daughter and later as the person who drove Mercer’s direction in the pickup truck and witnessed strangling.
• David Gee, described as joining the group and as being instructed to undress and engage in sexual activity.
• Mercer’s ten-year-old daughter, present at the house when Campbell was babysitting.
• Debbie Middleton, described as a person for whom Mercer was being prosecuted for rape at the time he was found guilty of the rape and murder of Keeton.
• Bumgarner, a prospective juror who was disqualified for cause.
• Cenobio Lozano, described as Mercer’s trial counsel in the context of the ineffective assistance claim.
• Bill Armontrout, described as the Warden in the Mercer v. Armontrout appeal.
• Scott O. Wright, described as a United States District Judge for the Western District of Missouri.
• Bill Armontrout and Warden Bill Armontrout were referenced in the execution reporting.
• Gov. John Ashcroft was mentioned in connection with the U.S. Supreme Court refusing to stay the execution.

Execution reporting details included in the case summary

A prison spokesman stated: ''Bill described it as sort of a look of shock. Mercer did make the statement that it was in the hands of the maker.'' The execution reporting included that Mercer was injected at 12:03 A.M., lost consciousness three minutes later, and was pronounced dead at 12:09 A.M. A 7 to 2 vote by the U.S. Supreme Court refused to stay the execution. About a dozen demonstrators carrying candles gathered outside the Missouri State Penitentiary to protest the execution.

1981 interview quotation

In a 1981 interview, Mercer said he did not kill the woman but that adverse publicity had helped convict him. He said he had found religion in prison, and the following quotes were included:

''The old Tiny is dead now,'' he said in 1981. ''He's buried. He's gone. I'm a new man in my way of thinking, my attitude toward life and everything. The Lord's done this to me.''

Legal citations and appellate procedural history included in the case

The case record included references to:

• State of Missouri v. George C. Mercer, 618 S.W. 2d 1 (Mo.banc.1981),
• George Mercer, Appellant, v. Bill Armontrout, Warden, Missouri State Penitentiary, Appellee, 844 F.2d 582,
• George Mercer, Petitioner, v. William Armontrout, Warden, Missouri State Penitentiary, Respondent, 864 F.2d 1429,
• Mercer v. Armontrout, 844 F.2d 582 (8th Cir.), cert. denied,
• Mercer v. State, 666 S.W.2d 942 (Mo.App.1984),
• statutory citations to Mo.Rev.Stat. Sec. 565.001 (1978) and Mo.Rev.Stat. Sec. 565.012.2 (1978),
• mentions of 28 U.S.C. Sec. 2254(d) (1982) and 28 U.S.C. Sec. 2254 (procedural discussion).

Defense-related procedural details

The case included that the district court denied Mercer's petition for habeas relief, and later in the execution-related appeal a stay order was temporarily granted and then vacated after denial of a certificate of probable cause.

The case also included that leave to appeal in forma pauperis was denied and the appeal was dismissed after the mandate.

Statements about evidence and disputed cause of death

The case facts included that Mercer argued about disputed cause of death, including that the medical report was inconclusive and inconsistent and that John Campbell actually murdered the victim. It also included that evidence that the victim used and distributed drugs might have supported the contentions but was described as having minimal influence in the appellate discussion because the jury determined Mercer strangled the victim to death.

Mention of an expert

In the later ineffective assistance discussion, the case included that counsel did present testimony from Charles Pottinger, described as a technician with the Kansas City Police Department and capable of expert comment on the physical evidence in this case.