*1 Barry ex rel. K. STATE Relator,
BAKER, v. Larry KENDRICK, The Honorable Wafer, E. Cooper, B. Teoffiee Deborah Respondent. Dryden, of the Public Cynthia A. Office Louis, Defender, St. Relator. No. SC Sidel, Dueker, Douglas S. J. Joseph Supreme Missouri, Court Office, Clayton, Prosecuting Attorneys En Banc. Respondent. May ORIGINAL PROCEEDING Rehearing Denied IN PROHIBITION STITH, Judge.
LAURA DENVIR following comes to
This case
the Court
Relator,
Bar-
trial in which
Baker,
ry
guilty
first-degree
murder
punishment.
to agree
but was unable
ordered a
only, believing
per-
such a retrial was
required by this Court’s deci-
mitted and
sion in
v.
motion for new came after automatically had under Rule been denied Because 29.11(g) and was no effect. this case after the United States was tried Arizona, Supreme decided Court 153 L.Ed.2d 536 U.S. S.Ct. (2002), out in principles set must be to it. As stated Whit- where, that, field, means unable to fails and the record to show impose a found all facts sen- only au- tence of the trial court’s thority to enter of life a sentence proba- imprisonment possibility parole. tion or *2 492 a Re- punishment, AND AU- to reach decision
I. PROCED URAL HISTORY jury. the spondent discharged THORITY TO GRANT MOTION FOR TRIAL NEW B. Motions. Rulings on PosNTñal 29.11(b), 15 Rule a has Under defendant A. Proceedings. Trial trial, a motion for new days in which file Barry guilty by jury Baker was a found 10 can grant but the trial court of first-degree of the murder Trisha Blue. days file the motion. additional in which to seeking the death Because State here, making the motion The court did so a penalty, penalty-phase trial was then On April due on or before held, parties presented during which the 16, 2003, timely filed his motion Mr. Baker concerning evidence whether Mr. Baker asking and trial errors alleging various life should be to death or to in sentenced alternatively enter an ac- Respondent prison probation of or possibility without impris- enter a sentence of quittal, to parole. sets out Section 565.030.4 onment, a or to grant him new to. must if it to render steps jury follow is him a new a verdict of death.1 for 29.11(g), the motion “[i]f Under 24, 2003, jury ninety On March Mr. new trial is on within passed filed, stating Baker’s returned a it is days is denied motion case, days unanimously pres- that it had found the all In this the 90 purposes.” for for new aggravating of four factors Baker’s motion statutory ruling ence for Mr. May a 2003. On beyond reasonable doubt but ended jurors or set were “unable to decide 12, 2003, record, and punishment.” hearing how- trial for on June upon the ever, completed sentencing scheduled fails to show But, Relator’s not rule on impose a steps the other Instead, sentence, other. including motion on date or considering this Court decided State mitigating circumstances out- when whether 2003), 253 on June weighed aggravation, those be- S.W.3d deadlocked, 17, 2003, filed he Baker what labeled coming required by Ring, Mr. in which he 565.030.4(3), “supplemental” a section RSMo as Whitfield, and required by the court was Because the unable asserted Supp.2003. 565.032, portion in subsection 3 of section pertinent of 565.030.4 listed 1. The provides: outweigh the evidence is sufficient punishment pun- aggravation of and The trier shall assess declare eligi- trier; imprisonment without ishment at life or bility probation, parole, (4)If or release all decides under of the trier governor: cept act of and declare the assess circumstances not (1) by preponderance If trier finds is death. If the trier at is men- that the defendant of evidence be so instructed. shall retarded; tally or Supp.2003. of the statute This version RSMo (2) beyond If the trier does not find differs from that discussed one statuto- doubt of the reasonable least step is added A new S.W.3d at 258-59. aggravating ry set out sub- circumstances in which the defendant address situations 565.032; or section 2 of section retarded, mentally step 2 in found to (3) If trier there is concludes that Step in is eliminated. 1 Whitfield mitigation punishment, evidence in- step Steps 3 and in the statute 2 now. support- cluding but not limited to evidence are the same as in Whitfield. statutory ing mitigating circumstances may, defendant, Whitfield, to enter a of life in with the consent probation own prison possibility new trial of its initiative be- later, parole. entry judgment imposition Two on June fore the thirty days sentence but not than supple- Baker filed an amended later *3 jury motion asking mental after the verdict of the is returned.” 29.13(b). relief. same Rather than rule on the Rule pending motion for filed on April new trial disagrees. This Court re- 16, 2003, Respondent gave parties then stating that it turned verdict form was 1, 2003, August supplemental until to file agree upon punishment. unable to While briefing addressing might how Whitfield parties disagree whether this During to Mr. Baker. the course of that term constitutes “verdict” as is used 15, 2003, briefing, July
this deadline 29.13(b), just in Rule under either quoted, ruling April for on 16 motion defendant’s “verdict,” interpretation of the term Rule passed, trial for new and that motion was 29.13(b) provided Respondent no basis for by operation 29.11(g). overruled of Rule For, order a if jury’s new trial. form, return of the which was labeled Respondent arguments heard “Verdict,” its verdict constituted under 13, about on August 2003. On Whitfield 29.13(b), Respondent only Rule then had 11, 2003, September a judg he entered 30 thereafter in which to order a new 16, ment did not mention sponte. undisputed trial sua It is 2003, Instead, motion for new trial. he Respondent If did not do so. the form the purported took Mr. Bak “verdict,” jury returned is not considered a motions, er’s 17 and June 19 but did 29.13(b) Rule is not simply applicable. then trial, by granting so new Baker a even And, event, any in the time though those entry motions asked ruled, very defendant made it clear had life sentence on In based Whitfield. that he did not to a trial. consent new event, the “supplemental” motions did 2003, 15, July not extend the deadline as But, Respondent argues, this Court’s de- they filed were after the time provided “trig- cision itself Whitfield trial required for new to be filed. ger” authority a new trial. Supplemental motions filed time Respondent so concluded because he be- the motion for new is trial due are a that, prohibited lieved while him Mucie, nullity. State v. 448 S.W.2d death, entering a it judgment from (Mo.1970). 890 The trial court had no entry mandate not of a sentence where authority to act on any motion for new supplement
trial or after cept the five cases that noted Mr. Baker then filed petition his were collateral review the time of its Court, asking prohibit the Court to Re decision. See S.W.3d at 269 spondent holding from n. Because he had entered a life or because Mr. II. ANALYSIS collateral Baker’s review Respondent argues entry that his and so was not one of the eases listed in on September of an order for a new trial he had the believed authority authority was within new penalty-phase his because to order a If no penalty-phase authority did not return a trial and did so. he had 29.13(b) and, thus, Rule this new he ar- inappli 29.13(b) equivalent saying “The court it is the he had gues, cable. states: indeed, long authority pending comply require- no with court— though even it ments of it tried. before was even governing case. relevant very ap- that it specific Respondent’s options were not so limit- plied at the pending to cases that were First, noted, nearly days yet ed. fact, time that was decided. he have remained could ruled on which noted, id. at had Relator’s motion after W.hit- under cases Griffith appre- was decided. While the Court field Kentucky, 479 U.S. 107 S.Ct. to have full ciates desire (1987), Supreme L.Ed.2d potential application briefing on that case’s for the conduct held that a rule Court *4 ruling, nothing in that decision or in “applied be prosecutions for criminal must provides that the deci- relevant case law federal, cases, or retroactively all state to governing during pen- a sion of case yet not pending on or final.” direct review a trial will dancy of motion start at 708. Griffith, 479 U.S. S.Ct. running 90-day period a new of judge authorizes the trial to act otherwise Whitfield, his assist Mr. This not periods the time set out in Rules outside was on direct review “appeal pending not 29.13(b). and 29.11(g) The trial court act- Whitfield, 107 Ring [when was decided].” jurisdiction in a ed in excess of its contrast, By at the instant 265-66. S.W.3d doing trial the time periods once court, trial was lapsed. so had final, Ring was decided yet was not when Second, comply Respondent could with matter, 2002, and, for that when Whit- by granting requested relief Whitfield Thus, 2003. was decided June field by sentencing him to life in Mr. Baker — and, it, fully to Ring applies Whitfield prison. no constraint on There was time held, must expressly Griffith, Ring “under doing his so after decided. Whitfield penalty future cases applied be to all argues that Respondent alternatively yet or still direct and to those not final on In apply not to Baker. does Whitfield, 107 S.W.3d at appeal.” Whitfield, Respondent so relies construing acknowledges, if As Whit- of ad- solely portions those where, then applicable, field dressing will to whether agreement jury was unable reach cases on collateral review. This Court that re- punishment and verdict noted that on review of its all turned did not show that appeared five records there imposition facts such cases on collateral review when only option impose was to But, was decided.2 was decided at of life. Id. while this case was still ("Thus, Whitfield, applied a limited number S.W.3d at 268-69 also penalty only those few Missouri death cases additional cases on collateral review longer appeal are no on direct and in brought the Court’s atten- were not then to reach a verdict unable and, tion, to the extent that isolated sentences judge required factual de- and the made interpreted, they must so be read could be imposed penalty terminations and the death context, discussion read entire application be the retroactive will affected holding that light of the additional Griffith review”). Ring ... to cases on collateral all then requires Ring cases purport deny review This comment if, pending or final. review, it was determined that on further reasons, LIMBAUGH, Judge, dissenting. made For these writ absolute.3 I dissent. respectfully State v. S.W.3d WHITE, C.J., WOLFF and 2003), this Court held TEITELMAN, JJ., concur. imposed by death sentence PRICE, J., separate opinion concurs in was unable to arrive at filed. phase was unconstitu- penalty LIMBAUGH, J., separate dissents in right tional violated defendant’s because opinion filed. statutory to be sentenced on certain factu- by a
al determinations that must be made BENTON, J., concurs in opinion remedy, jury, according id. at 271. The LIMBAUGH, J. Court, a 4-3 was the man- datory imposition and ministerial of a PRICE, Judge, concurring. sentence, penalty phase I in the concur result reached having de- jury, which a made the factual majority. 29.11(g) provides required terminations under *5 days has 90 to determine wheth- would decide anew between a life sentence deny er to a new trial otherwise or a death sentence. the is “denied purposes.” for all disposition plained that the was controlled 271-72, 565.040.2, RSMo, by section id. at Baker filed his motion for a trial on pertinent part: which states 16, 2003. The trial court did rule 11, September July on it until 2003. After In the event death sentence however, deemed imposed chapter to this is held pursuant all purposes” “denied for because of the unconstitutional, the trial court day of the 90 in Rule expiration deadline previously sentenced the defen- 29.11(g). accordingly The trial court shall cause the defendant dant to death authority lacked after that date to order a to before the court and shall brought be See State v. Bark- trial. ex rel. Parks imprison- sentence the defendant to life er, 1978) 567 S.W.2d eligibility probation, ment without (under comparable 29.11(g), rule “since the parole, except by or release act of beyond the of a new trial ... was governor.... given the the such time trial court for The dissent contended that section action, beyond action the the court’s only to 565.040.2 refers cases “where
jurisdiction prohibition proper [was] sentence cannot penalty constitu- remedy”). upon a de- tionally imposed particular states, fendant,” preliminary and in the As the writ id. at authority penalty the trial court had to death could indeed be constitution- act that by expiration ally simply requiring was “to imposed take after requisite At this make factual determinations impose sentence said case.” retrial, time, than unnecessary go penalty phase it further id. at 273-74. writ, written, argument carry Although this make though the day, and Court is now bound absolute. appeal. excellent this 3. The Court thanks counsel for their the issues in arguments presentations of the both sides major- precedent established Missouri, Respondent, STATE of facts in ity, the different the case hand compel a result. different Baker, Defendant unlike defendant GLASS, Appellant. E. Travis was never sentenced death so trigger section 565.040.2. On its No. SC 85128. face, apply! 565.040.2 does Missouri, Supreme Court Yet, by applying, misapply- now or rather En Banc. remedy ing, Baker, parole majority disregards rationale, which was based
exclusively on section 565.040.2. July Denied Rehearing Unfortunately, appears prob- it Rehearing As on Denial of Modified majori- lem overlooked because of undue ty’s focus on timeline By express motion for its
terms, applies to all so, according
cases. Id. at 268-69. This is the status of majority, regardless to the the motion for new is so even if, as issue was not the Whitfield in a timely permit raised fashion to Indeed, application court to rule on it. *6 holds, as the encom- passes remedy viola- tion, remedy, too, necessarily and the independent of the motion for new trial. Although holds that remedy is to the de- permissible parole, holding, fendant life without show, wholly I have attempted 565.040.2, which does dependent have not persons who short, sentenced. exclusive been parole remedy of logically extended to this case. cannot reasons, I For these would hold jurisdiction take trial court had remedy violations penalty phase hearing, regardless a new the motion for new trial. I status of quash the writ. would