State v. Antwine

Missouri, Respondent, STATE ANTWINE, Appellant. Leon

Calvert

No. 67720. Missouri, Court

En Banc. 15, 1987.

Dec.

Rehearing Denied Jan. Durbin,

David S. Defender, Asst. Public City, Kansas for appellant. Gen., Webster, Atty. L. Eliza-

William Gen., Ziegler, Atty. Levin Asst. Jeffer- beth respondent. City, for son ROBERTSON, Judge. Antwine, Leon

Appellant, Calvert 1,1985, February charged by indictment murder, counts two with two and one of armed criminal action1 counts first-degree robbery. The case count of proceeded to trial before a Cir- August County on cuit Court of Jackson first- Appellant convicted of 1985. was robbery,2 second-degree murder3 degree murder,4 which he was sen- and thirty years life imprisonment, tenced death, Ap- respectively. imprisonment, appeals pellant from his convictions sentences. imposed a sen-

Because the trial court death, of this Court vested tence Const, appellate Mo. jurisdiction. exclusive V., art. sec. 3. pending case on direct

While this Court, Su appeal to this the United States Kentucky, v. Court decided Batson preme L.Ed.2d 69 U.S. S.Ct. Alabama, (1986), overruling Swain 202, 85 13 L.Ed.2d 759 U.S. S.Ct. (1965), composi governing law In our issue at the time of trial. tion 13, 1987, we original opinion January Batson appellant’s argument denied on v. Lockett the basis 1986) (No. 68186, Decem decided that Batson 16,1986), in which we held ber given application. should not be retroactive 13, 1987, January United States On effectively overturned Supreme Court Lockett, deciding had retroac that Batson federal, cases, to “all state or tive effect yet final.” pending on direct review or — -, Kentucky, Griffith light 708, 93 L.Ed.2d 649 sponte, remanded, Griffith, sua we purpose to the trial court “for the case 565.004, Section RSMo 1978. counts criminal action were 3. 1. The two of armed subsequently by the State. dismissed 565.001, RSMo 1978. 4. Section 569.020, 2. Section RSMo mother_” After appellant’s to kill all determining validity of con- apartment, Shirley appellant entered under On re- stitutional claim Batson.” Shirley LaTanya called heard shots. mand, hearing court a the trial conducted appellant leaving police. issue, She observed finding appellant the Batson gun and a black apartment carrying a prima a case of failed to establish facie gold and black bag. entered per- of its discrimination State’s use away. car and drove challenges. rehearing, we emptory On guilt again judgments affirm both found Winston Jones Police officers later sentence of death. floor living room lying face on the down gunshot apartment wounds with three I. trial, medical examiner in his head. At of the wounds were testified that two p.m. 6:00 on November approximately At weapon fired while flush 11, 1983, caused appellant arrived at 2108 Vine against the items found skin. Other men Street several were refurbish- where apartment large quantity owner, included a for the Eric a restaurant dollars in marijuana twelve hundred (“George”). Appellant, George who Jones cash. workers, by the was known asked where Winston, brother, George or his Jones leaving Joy’s apartment, appellant After workers, found. When the who could be proceeded College at 26th and a house crap game, appeared involved operated from which the Jones brothers ignore appellant, appellant decided to “bust there, drug While business. up” crap game. produced He the a hand- George Joy and Jones arrived with two announced, gun up.” and “This a stick door George others. knocked on the where firing

After several shots into the wall and gun in appellant met a by he was with his heater, hitting space appellant took mon- a George Appellant hand. fled. turned and ey and left restau- from the workers the Joy gave caught chase him. heard and rant. say, appellant just your “I killed brother going Appellant I’m kill too.” and to restaurant, appellánt From the immedi- George gun point directed back to the proceeded ately to the Lincoln Garden George car and forced to drive. Apartments, away located a block from the Joy There he restaurant. encountered p.m., 6:00 and 7:00 Sometime between Jones, George the sister of and Winston police separately two officers were dis- Jones, leaving apartment who was the she patched to the intersection of 34th and Joy shared with Winston. was several Prospect Upon call. a disturbance arriv- yards doorway to apartment al, from the her appellant the officers and observed appellant approaching. when she saw George middle of struggling in the the wanted, ap- handgun. When she asked him what he possession over a street the pellant looking gun indicated that he was for approached, The officers secured the George Joy apart. appel- When and Winston. asked and broke the two men Both brothers, arrest, appel- George placed her under what he wanted with lant and were going Appel- put kill handcuffed the and into lant said he was to them. behind back doorway wagon transport police paddy lant to the he for to the proceeded where open paddy wagon, appel- that Winston door. station. While in the demanded the door, stepped through so that open whereupon the lant his arms his Winston cracked body. appellant way apart- his in. hands were in front of his forced As closed, Joy ment door ran the restaurant station, Upon Officer arrival at George. to look for driver, placed Schilling, paddy wagon holding daughter, LaTanya, George appellant Ap- and in a cell. Shirley Ford and her later, adjacent apartment. They proximately ten minutes Offi- lived in an ob- five to forcing Schilling coming appellant Joy’s his cer a scream from way served into heard investigate. apartment, holding carrying saw that he was cell and ran back to officer, gun, appellant yell, going He Detective Lonkan- and heard “I’m and another first-degree im- George robbery count of were sky, the cell and found one entered floor, lying trial, face down on the semiconscious joined. Prior to properly defense bleeding and from the nose and mouth. I counsel filed a motion sever Counts Appellant seated on three to was a bench (charging capital II murder of Winston and feet away. four action) criminal Count Jones armed Schilling left call an George Officer the cell to (charging capital III murder of Realizing wearing ambulance. that he was Jones), and sever Counts IV and V revolver, Lonkansky his service Detective (charging robbery and armed criminal ac- stepped called assistance and out tion) I, II and motion from Counts III. The approximately He four cell. had walked was denied. thumping a loud feet when he heard sound. Appellant contends Section 545.140.- midair, Turning, appellant in com- he saw (effective August Cum.Supp.1984 RSMo side down both feet on the with 13, 1984), case, apply in this does Lonkansky George’s head. Detective charges against improperly him were Appellant again for assistance. shouted joined under 23.05 his of- bench, up Rule because picked cell back on the sat down rag calmly proceeded separate off the floor fenses distinct transac- The medi- wipe the blood off of shoes. tions, alternatively, that court the trial George cal examiner testified that Jones its under abused discretion Rule 24.07 injury as the of a died result blunt force refusing to trial. sever offenses for head, such consist- injury and that Appellant asserts further kicked, being stomped with or beaten ent submitting punishment court erred in floor. against concrete robbery jury during punish- he killed the contended that phase ment the trial. spe- brothers in self-defense. More Jones cifically, urged to believe A. business, drug he out of the that wanted Joneses, engaged Initially, appellant that Sec asserts kill him and that the Joneses threatened applicable to case. tion 545.140.2is not quit. if he carried out his intention to Instead, appellant argues joinder the capi- jury5 appellant guilty of found Rule 23.05.6 issue should be decided under Jones, killing George murder tal for 23.05, propriety joining Rule Under kill- second-degree for the guilty of murder indict or more offenses the same two Jones, guilty of second- of Winston depends ex upon or information ment punishment phase degree robbery. plan.” or istence a “common scheme trial, imposed of life jury a sentence determining essential test “[T]he murder, imprisonment second-degree exists, plan scheme whether common or years first-degree thirty imprisonment for requirement is the that all the offenses ... robbery, capital murder. On and death for single or charged ‘products of a must be points twenty-two appeal, appellant raises ” origi continuing (emphasis in motive.’ appel- all of of error. have reviewed We nal), 271 McCrary, v. 621 S.W.2d State points great Only merito- care. lant’s Foerstel, (Mo. 1981); 674 banc State points rious will be discussed. (Mo.App.1984). For S.W.2d follow, II. we not deter reasons need which applies mine 545.140.2 whether Section appellant’s argument We first consider case. counts of murder and this two relating or transac- or on two or more acts Factual to the Batson issue transaction 5. matters V, parts be at of a scheme will discussed that constitute common tions infra. charged plan indictment or same 6. Rule states that: 23.05 separate or information in counts. act All are based on the same offenses that part two or acts that are of the same more McCrary, 621 of the trial court. charged discretion the offenses We believe that Williams, 272; of his S.W. against appellant product were the at continuing George (Mo.1980); kill and Win- In de motive to Rule 24.07. 2d at the appellant sever, After arrived ston Jones. the court should ciding motion to restaurant, first act was to ask his defend prejudice to the determine whether they had seen workers there whether joinder from of all of result ant would ig- the men George or Winston. When considering “the single trial fenses in a get question, appellant decided nored his complexi charged, the of offenses number attention; He then he robbed them. their and wheth to be offered ty of the evidence immediately went the restaurant and left to distin of fact will be able er the trier continuing apartment, Joy Jones’ intelli guish apply the law the evidence began George and he search for Winston offense.” v. Du gently as to each apartment he told restaurant. At the 1977), ren, looking for her Joy Jones that was nom., sub Duren grounds on other rev’d them. Find- and intended to kill brothers Missouri, apartment, appellant ing Winston at (1979); McCrary, 621 S.W.2d L.Ed.2d 579 killed him. continued shot and 272; Foerstel, 674 S.W.2d at George, proceeding to a search him one location from house known to not review of this record does Our operated drug the Jones brothers in the trial reveal abuse discretion expected to find business and at which he overruling appellant’s to sev court motion arrived, George appellant George. When charged Only offenses were er. three pursued gunpoint, caught him at him and relevant against appellant. The evidence that he had killed Winston and announced overly complex. jury to each police going to kill him. After the on each separate instructions received placed arrested the two men and them The court submitted an instruction count. paddy wagon, appellant maneuvered to 2.70, limiting patterned after MAI-CR2d body. place his handcuffs in front of his of the evidence to each consideration cell, holding George. At the killed jury appel found count.7 The fact that the sequence place took This entire events guilty of the lesser included offense lant crime oc- in less than two hours. Each second-degree murder for the death vicinity a short and short curred within shows that the careful Winston Jones other; by appel- linked time of the all were ly applied the instructions and considered continuing kill lant’s motive to find and intelligently as to each offense. the law George Appellant’s Jones. Winston prejudice resulted from the trial No argument separate, dis- these were Ap- overruling the motion to sever. court tinct, simply incon- unconnected crimes is pellant’s point is denied. in sistent with the facts this case. that each of the offenses was an We find C. constituting part scheme act of common tri Appellant also contends that the properly joined All under plan. or were by error al court committed instructional Rule 23.05. submitting punishment robbery for to the B. phase during punishment the of jury the specifically does not the trial. MAI-CR2d question prop of of severance The punishment of deal the submission erly joined offenses for trial rests with by you by another offense be considered as to No. 16 submitted the court 7. Instruction charged any purpose. read: for guilty or not charged separate You find the defendant with a of- The defendant you. Each submitted guilty in each Count submitted to or all of the Counts fense offense and the evidence and law on applicable to against him. Any separately. evi- it should be considered separate as to render a verdict You should of been limited to one dence which was has against the defendant. each Count submitted charged purpose or one should not the offenses 58 III. opening in- jury. to The

alternatives the given jury at to be the the second struction points Appellant next raises several of in stage pertinent states of homicide trials pro- focusing jury on the selection error part: cess. guilty have the defendant You found A. murder) (murder in second (capital

of the stage of degree) (manslaughter). At this objects detail Appellant first your duty present it will to determine the trial to the which the state allowed by prescribed the the on dire. within limits law facts of the case voir imposed for which must be punishment right the to an A defendant has that offense. impartial jury decides jury the —a punishment During the MAI-CR2d 15.30. trial, presented case on the evidence trial, appellant’s the court phase of trial gleaned on from some external information instructions, separate opening gave three VI; Const. Amend. Irvin v. source. U.S. finding reflecting jury’s the first Dowd, 366 U.S. 81 S.Ct. 6 murder, guilt second-degree the second (1961); Maxwell, to Sheppard L.Ed.2d reflecting finding guilt robbery to 16 L.Ed.2d degree,8 reflecting a protect right, first the third In order to this finding guilt Appel- parties murder. Court and the must determine a knowledge argues prospective juror’s personal modification of MAI- lant public exposure pretrial or his to the offense of rob- crime CR2d 15.30 refer ity. portion of the Revelation some only under MAI- bery is not unauthorized necessary facts of a case on voir dire is contrary to directives9 but the statu- CR2d make An insufficient this determination. punishment10 as tory procedure regarding jeopardize description appel facts well. impartial jury. right lant’s to an assuming arguendo, we find Even error however, counsel, permit We do not by the prejudice appellant modifica- no presentation try by on voir dire the case of MAI-CR2d 15.30. Neither do we tion explicit detail. State v. of the facts submitting for prejudice find Wilkerson, 616 S.W.2d during robbery punishment phase of 1981). appropriate dire Nor is voir an occa- to show trial. burden is Henderson, argument. sion so. not done On prejudice; has (Mo.App.1976). jury record there no evidence any way submission of implicating confused A must be struck balance require- the homicide counts robbery count and process both due concerns and penalties in- involved. The ments the individual case. because separately position given judge were best to determine structions imposed neither voir by the a disclosure of facts on dire is penalties whether nor un- assure the defendant an with the law excessive sufficient to inconsistent time, without, Finding preju- impartial jury the same circumstances. no der the being dice, presentation to a evi- deny point. tantamount we I, Use, MAI-CR2d Volume 9. See Instructions 8.The instruction read: XV, p. XVI. guilty defendant under You have found the Robbery Degree. of in the First At Count III your duty stage 557.036, of the it will be to this Cum.Supp.1984, ap- 10. Section RSMo prescribed by limits law determine within the count, plicable robbery provides that the imposed punishment be for that which must the offense. range jury the of court shall instruct the as to upon punishment by authorized statute punishment by Robbery law for in the The punish- guilt finding to of assess and declare imprison- Degree imprisonment or is First life part MAI-CR2d of their See ment as verdict. by you, years not a term fixed but ment for of 23.02. thirty years than ten and not exceed less years. Did of hands on that. could see a show judge The discretion of the trial dence. my question? everyone understand striking up- be this difficult balance will held, that jury in the box Anyone absent abuse. here against the im- automatically vote would Appellant urges that the trial capital punishment, irre- position of the judge disagree. abused his discretion. We gardless circumstances of the party asserting abuse of the trial Yes case? How about back there? controlling court’s discretion in the manner ma’am? questioning extent of on voir dire has MARCY BROWN: VENIREPERSON demonstrating proba the burden of “a real I there I don’t know if was included back thereby prejudiced.” bility that he was might, yes. I or not. I think Norton, (Mo. State S.W.2d We’ll come back MR. DAKOPOLOS: App.1984). reviewing In the record in this just I show of later. want a case, presentation we find that the factual Anyone this time. else? hands at given by lengthy the State was neither too question, anyone is there on My next iden overly nor detailed. fails to panel whose attitude toward the tify any by the that statements State prevent from penalty death would them argumentative prejudicial or either making impartial decision as to a fair and they context in which There were made. guilt? Any this defendant’s hands on being prejudice appellant, point no that? denied. hands, per- After a show of the State was objection mitted over to ask an additional B. question: Appellant’s significant more contention Now, I MR. DAKOPOLOS: the reason regarding presentation the State’s factual previous questions asked these two subsequent on dire concerns the death- voir imposition penalty about the of the death qualification prospective jurors. He ultimately jury is that in the event the argues that the manner in which the State selected and should find this defendant death-qualification process conducted the murder, will, in guilty capital the State predisposed jury to vote for the death fact, asking jury impose be penalty process in violation of due penalty. death right impartial jury. a trial a fair and Now, other than the hands that I’ve seen, already anyone else does that cause presented ques- After the facts were change regard? their mind in that tioning venirepersons was had several familiarity their who indicated with the hypothesize may The State not case, proceeded State follows: prospective and then ask the set of facts Now, state, jurors they how would vote under those MR. DAKOPOLOS: Pinkston, facts. 336 Mo. person the law is that should a be found (1935). Appellant murder, 1048-49 ar guilty capital only there are gues presen initial factual that the State’s imposed two sentences can be on tation, coupled with advisement to imprisonment life defendant. One is jury during death-qualification pro possibility probation parole with no asking that it be for the death cess would he has until served a minimum of penalty should the “find this defend years in the Missouri Division of Correc- murder,” guilty achieved this ant tions. other death. disagree. forbidden result. We anyone panel, Is there because reasons, personal, religious moral or support argument who, reasons, because of those question would veniremen about their automatically against imposition impose vote ability to the death them, capital punishment regard With without relies on case before Illinois, erspoon might developed evidence Tex Adams v. 1770, (1968), you? the trial of this If I 20 L.Ed.2d 776 before case 60 38, as, 2521, enough the case to know that she 448 65 L.Ed.2d about U.S. (1980), Witt, Wainwright imposition of 581 v. 469 the death could not consider 412, 844, might 105 83 L.Ed.2d 841 penalty regardless U.S. S.Ct. of what evidence assertion, (1985). appellant’s Contrary to presented, she must be excused.” 679 be point

these to the that 265, decisions conclusion quoting Mag Williams v. S.W.2d at disclosure of certain amount of factual 381, (5th Cir.1982), 679 F.2d 386 cert. gio, necessary information is to determine denied, 103 77 463 U.S. fairly act and im whether veniremen will L.Ed.2d 1399 in the at partially case hand. very purpose of voir dire is to exam- Witherspoon, In the Court not- jurors to their prospective ine discover prospective juror ed cannot be that while of mind. From that examination it state expected say to in of trial whether advance persons possible harbor to determine which penalty vote for the death the would against party or either prejudice bias him, willing case he must before “be jurors them unfit to serve as would make penalties provided by consider all the capital In a mur- in the case before them. law, irrevocably not be com- state ... case, inquiry the venire members’ der into mitted, begun, has to vote before the trial penalty the death of critical views about against regardless penalty the of death state, importance the the defendant might the that facts circumstances duty It is the of all concerned to court. emerge proceedings.” course investigate thoroughly in order those views n. at 522 88 S.Ct. at 1777 21 n. qualified jury. to assemble the most See Adams, In (emphasis original). Smith, (Mo. S.W.2d State two-part Witherspoon simplified Court 1983). banc juror test for exclusion11 to one which possibility realm of It not outside the juror’s seeks to determine whether person expresses general sup- for who punishment views about “would port penalty death to reconsider that per- prevent substantially impair or prospect position when faced with of his ... in accordance formance duties imposing penalty personally. The that and his oath.” 448 with instructions to the facts and State’s initial reference 45,100 2526. This test was U.S. at S.Ct. at inquiry ju- prospective as to whether the Wainwright, where the later affirmed in impose penalty in rors could the death any other trial Court stated that as request not a for case before them was party exclude a situation where a seeks to commitment, proper investigation but a adversary seeking juror, “it is the biased prospective jurors into whether the could demonstrate, through exclusion who must including death, penalties, re- consider all questioning, potential juror lacks gardless facts and circumstances impartiality.” at 105 S.Ct. at later adduced at trial. Johns, 679 C. 1984), this concluded that a Court argues cer Appellant further that unequivocally opposed venireman who was expressed tain of the venire who members penalty that case but who the death opposition penalty erro death were might willing she be to consider stated that neously The trial court removed cause. was not immune from it in some cases ruling possesses discretion apply be considerable Jurors must able exclusion. challenges to members venire fairly impartially to the facts the law discretion, they cause. Absent clear abuse learn trial. “If she knows will them, (2) standard, jurors attitude Witherspoon the case before their 11. Under they prevent them properly cause made it death would excluded for if toward the making impartial from an decision as (1) unmistakably they clear would auto- guilt. defendant’s matically against capi- imposition vote n. S.Ct. at 1776-77 regard 391 U.S. at 522-23 n. punishment without evi- tal original). (emphasis might developed the trial of dence

61 Wither- with dispensing addition to rulings not be dis trial court’s will [I]n Smith, spoon’s to “automatic” deci- reference appeal. on 649 S.W.2d turbed Battle, sionmaking, does this standard likewise See State 422. denied, proved (Mo. 1983), require juror’s that a bias be cert. 491 banc (1984); S.Ct. 2375, clarity.” This is be- L.Ed.2d 847 “unmistakable 104 80 with Stokes, juror cannot 638 721 cause determination of bias S.W.2d denied, 1982), question-and-answer ses- cert. reduced to be L.Ed.2d 488 results the manner sions which obtain What common sense

of a catechism. 1. experience has should have realized proved: many simply veniremen cannot ex- The first two members of the venire enough questions asked to reach Briggs for cause were Patricia cluded point their bias has been made where questioned indi- Grover Garrett. Each was Despite this “unmistakably clear”.... responding to vidually in chambers after record, printed clarity lack of how- general inquiries regarding the death ever, there will be situations where the penalty panel. asked of the entire Both judge is left with the definite im- trial initially they stated that would be unable to pression prospective juror that a would imposing penalty consider the death re- faithfully impartially gardless be unable to of the facts and circumstances apply attempt at trial. In his the law. adduced to rehabili- Briggs, tate Ms. the defense counsel 424-26, 469 U.S. at 105 S.Ct. at 852-53. presented following hypotheti- her with the consistently recognized the We have cal situation: fact position interpret judge’s superior to you if saying MB. BBOWN: Are totality evaluate the of a venireman’s ver- you presented were a set of facts responses actually bal and nonverbal where, instance, say for a small child heard and seen —an evaluation which can- brutally you murdered and readily not be made from a cold record. you jury person found the was Smith, at 422. murder, guilty capital you’re saying Briggs initially Both and Garrett ex- that, you in a situation like could pressed unequivocal opposition imposing penalty? consider the death penalty the death in the case before them. just VENIBEPEBSON BBIGGS: I’m willingness The fact that each indicated a saying maybe. say yes. I couldn’t I still the death in the ex- consider say yes. I just— couldn’t hypothetical presented by treme situation asking you MB. I’m not if BBOWN: the defense counsel is not a basis for ren- could, fact, it, go on and do but could dering either of them immune from exclu- you doing consider it? Johns, jury sion from the for cause. Yes, I VENIBEPEBSON BBIGGS: S.W.2d at 264-65. could it. consider Similarly, responded after Mr. Garrett

positively questions challenges State’s about also the ex pen- May, whether his attitude toward the death clusion of venireman Anna who ex alty impossible pressed position during ques him would make it her individual decision, impartial tioning render a fair and as follows: “If, instance, defense counsel asked: if personal A MB. DAKOPOLOS: belief. you you were on found Adolf belief, personal And because of this murder, guilty you Hitler could impossible find would it listen consider it that situation?” In answer to impar- the evidence and render a fair and situation, hypothetical hes- Mr. Garrett of this tial verdict the case because itatingly responded: “I —I believe so.” against penalty? the death belief Wainwright, I I Court ob- MAY: think VENIBEPEBSON might, yes. served that: Well, Appellant urges that in- you say you and 15.38. these MR. DAKOPOLOS: And, course, proof beyond you improperly define might. of the structions think proof as attorneys as a reasonable doubt leaves and the would like Court give jury “firmly convinced” of the defend- response you can us. the definite guilt. ant’s guess I I MAY: YENIREPERSON be. would 1, 1984, the Effective October General And that MR. DAKOPOLOS: would this Assembly required courts of state your the irre- be—would answer be same of juries on the definition reason- instruct of the gardless what facts circum- in able doubt criminal cases. Section 546.- might prove of this case to be stances 070(4), Cum.Supp.1984. In compli- RSMo during the of the trial case? directive, statutory ance with the 1.02, MAI-CR2d 2.20 and MAY: Yes. Court modified

VENIREPERSON following to include the definition: 15.38 your MR. And would DAKOPOLOS: any case A doubt is a doubt based be the same in where reasonable answer sense seeking penalty? upon reason and common after the State is a death impartial careful and consideration of all Yes. MAY: VENIREPERSON the evidence in the case. Irregardless of MR. DAKOPOLOS: beyond a is Proof reasonable doubt particular case? facts of this proof you firmly that of leaves convinced Yes, MAY: I think VENIREPERSON guilt. not defendant’s The law does it would. proof every pos- require that overcomes kill- Any MR. heinous DAKOPOLOS: If, your doubt. after consideration sible kind, any you still— evidence, you firmly con- of all are Well, I MAY: VENIREPERSON guilty that the defendant is of the vinced I think it personally, yes, involved am you guilty. will find him charged, crime I'd an awful hard time with would. have convinced, you must you If are not so it. give him the of the benefit doubt in case MR. But DAKOPOLOS: guilty. find him not imagine, your is you can attitude that contends, Appellant without citation you ren- that would not be able to such authority, supporting use any specific that impartial der a fair and verdict because “firmly phrase convinced” lowers against imposing the your death belief required proof the burden penalty; correct? that something else than be- criminal cases to Yes. VENIREPERSON MAY: doubt, yond in violation of a reasonable given May fact that the answers See In re process. right of due appellant’s unmistakably does ren- not clear not 358, 364, 90 S.Ct. Winship, from Even der her immune exclusion. (1970) (“[T]he Due 25 L.Ed.2d page, it is sterility printed from the protects accused Process Clause answers could well have May’s clear that against except upon proof be- conviction impres- judge trial with the definite left the doubt_”) yond We dis- a reasonable her sion that attitude toward death agree having fully considered the con- rendering from prevent would her regarding the burdens stitutional mandates in this case. impartial verdict fair proof, we find no reason to reconsider excluding find no abuse of discretion We now. the definition jury. her from language “firmly convinced” con- IV. It definition is new. tained MAI substantially the same as found next claims that the instructions,12 1.02, has been em- 2.20 the federal giving MAI-CR2d court erred in If, guilt_ your pertinent based consid- fendant’s The federal definition states evidence, firmly you part: are con- eration guilty of the defendant beyond proof vinced that a reasonable doubt is firmly Proof If, guilty. charged, you him must find of the de- crime leaves convinced defendant s race strike members state courts alike.13 ployed federal and venire, that, once the jurors in their from lay It is intended to assist prima facie had made the “beyond defendant understanding legal phrase prose- shifted to the showing, the burden The instruction a reasonable doubt.” come forward with a neutral view, cution to “firmly purpose; in our achieves challenges. explanation for those essentially synonymous with convinced” is “beyond a reasonable doubt.” U.S. -, -, Kentucky, Griffith 708, 710, (1987). 93 L.Ed.2d 649 107 S.Ct. validity Any doubt about prose Batson applies to criminal Griffith language “firmly convinced” instruction direct or not “pending cutions review in context. removed when it is considered yet final” when Batson was decided. Grif may not single jury “A instruction to a be -, fith, 479 U.S. at at 710. 107 S.Ct. isolation, must be judged artificial but appeal this case was on direct Because in the context of the overall viewed decided, Batson controls when Batson 141, Cupp Naughten, v. charge.” 414 U.S. here. 400, 146-47, 396, 94 38 L.Ed.2d 368 S.Ct. case, participate In are called to we (1973). jury 2.20 informs the MAI-CR2d continuing process defining of presumed inno- that “the defendant is to be contours of the Batson holding, 476 U.S. at cent” and that “the state the bur- [bears] (White, J., 101, 1725 concur- 106 S.Ct. at proving beyond den of a reasonable doubt ring). Specifically, our is twofold: task guilty.” that the defendant Read as a First, guidance provide must to our trial whole, we properly 2.20 MAI-CR2d instructs Second, Batson issues. deciding courts jurors duty evaluating of their appropriate required we are to define the making evidence and a determination of of Batson appeal standard of review on guilt Appellant’s point or innocence. is de- questions. nied.

V. Batson intimates that it should read Appellant argues that the trial court Supreme side-by-side with the Court’s Title failing quash jury panel erred in Id., 94, 18, cases. 476 U.S. at n. 106 VII engaged systematic the State in a because 1721, Doug McDonnell See n. 18. S.Ct. pattern excluding qualified black venire- Green, 792, Corp. v. las 411 U.S. 93 S.Ct. jury appel- men from the violation Depart 1817, (1973); Texas 36 L.Ed.2d 668 lant’s Fourteenth and Sixth Amendments Burdine, Community ment v. rights equal protection jury and to a Affairs 248, 101 1089, 67 L.Ed.2d 207 450 U.S. S.Ct. a selected from fair cross-section of the (1981); United States Postal Service community. Aikens, 460 Board Governors v. 711, 1478, 75 L.Ed.2d 403 A. together, provide Read these cases a rela 79, Kentucky, Batson v. 106 476 U.S. tively picture procedural focused 1712, (1986), S.Ct. 90 L.Ed.2d 69 the United Batson requirements of at the trial level. States Court ruled persuasion that a defendant a state criminal trial The ultimate burden of prima could establish a facie case of ra- lies with and never shifts from the defend Burdine, 252-256, 101 cial discrimination violative of the Four- ant. 450 U.S. at Amendment, prose- may “rely A defendant teenth based on the S.Ct. at 1093-95. challenges peremptory challenges peremptory cution’s use of on the fact ... hand, (Federal Jury 21 Judicial Center on the other think that there is a Instruction No. 1982). possibility guilty, you must real is not give him the benefit of the doubt and find 1095, Hunt, F.2d 13. See United States v. guilty. him Bustillo, Cir.1986); (5th States United Study Federal Judicial Center Committee to 1364, (9th Cir.1986). Accord 789 F.2d Instructions, Jury Criminal Criminal Pattern Clark, (La.1984). So.2d 299 n. 2 explanation per practice that court consider State’s constitute a selection employed its chal- manner in which it mits to discriminate who are a ‘those lenges prior making final Batson, determina- mind discriminate'." 476 U.S. Avery citing prima facie case ex- 106 S.Ct. at tion as to whether a our trial Georgia, 97 ists. We must therefore direct (1953), pri- prosecutor’s expla- judges to consider the L.Ed. 1244 establish showing part process nations of determin- ma facie case of discrimination (1) has cogni a defendant defendant is a member of a whether established racially discriminatory group, (2) prima facie case of prosecutor zable that the racial challenges. peremptory re peremptory challenges to use of has exercised move of the defendant’s race members judgment validity A as to the venire, (3) from that “these facts explanation” presents the State’s “neutral raise other relevant circumstances troubling judge particularly prosecutor used that an inference is, all, Jury task. selection after an art from the practice to exclude the veniremen nature, By very per- not a science. their petit jury of their race.” Bat on account challenges subjective emptory require eval- 96, 106 son, at S.Ct. 476 U.S. by uations veniremen counsel. Counsel rely upon perceptions fa of attitudes prima must Defendant’s establishment a demeanor, upon gender, ethnic back- presumption based cie case creates rebuttable status, age, perempto ground, employment, marital prosecutor that exercised his the status, position, religion, social ry challenges discriminatory in a manner. economic 254, 7, background Burdine, many n. other fundamental 450 U.S. at 101 S.Ct. at course, is, of no 1094, facts. There assurance production then n. 7. burden limited perceptions within the drawn presumption the shifts to the State to rebut dire be accurate. totally context of voir will coming by discrimination forward with a perceptions upon simply Counsel draws challenging explanation neutral black determining he acts the use Batson, 97, which jurors. S.Ct. at challenges. peremptory explanation proffered 1723. The neutral reasonably specific' give “must a ‘clear and unacceptable only those declares Batson ‘legitimate rea explanation of the State’s doing, perceptions upon race. In so based exercising challenges.” Bat- son’ for the requires judges to measure Batson son, n. 106 S.Ct. at against subjective decisions of counsel Burdine, citing 450 U.S. at n. standard. a constitutional at 1096. extremely diffi- judge’s The trial task is If forth a neutral the State comes prosecutor will cult. One doubts that by presumption “the raised explanation, par- challenge admit that his decision prima facie is rebutted case [footnote based ticular member the venire was proceeds inquiry and the factual left upon omitted] court is with determin- race. The Burdine, of specificity.” to a level new totality from the of circumstances 255,101 at 1094. Defend- 457 U.S. at explanation neutral an articulated whether obligation to demonstrate ant has now improper an excuse for discrimina- is but merely explanations the State's are judge requires the trial tion. Batson thus and, thus, dire, reason pretextual not the true participatory role in voir to embrace a peremptory chal- noting for the use State’s the subtle nuance of both verbal lenges. mem- communication from each nonverbal prosecutor of the venire and from ber matter, practical the third As himself. Bat- prima facie case under element of Butler, circum any other son—“facts relevant prosecu (Mo.App.1987), adopts a well-reasoned an stances raise inference judge’s three-pronged analysis of the trial peremptory challenges] to ex tor used [his pro obligation explanations to assess the petit jury from the clude the veniremen prosecutor. requires by vided their the trial account of race”— challenges on the First, peremptory its susceptibility particular exercise legitimate “hunch- may prosecutor’s be eval case to racial discrimination basis of the long The court past experience, uated. so as racial es” and [citations omitted.] may consider the race of the victims We do is not the motive. discrimination primary example, For witnesses. of Butler not, therefore, holding adopt the key fact that the witnesses for both sides supportable explana- only objectively advantage any are black ‘would discount challenges peremptory tions for its use discriminating prosecutor might that a survive a Batson challenge. striking jury.’ perceive in blacks from the believe, however, that Batson We do not Mathews, States F.2d [United v.] [803 explanations” is satisfied “neutral (7th Second, Cir.1986)]. legitimate, facially rea- are no more than relevant, prosecutor’s demeanor sonably specific facially clear. Were prosecutor Is [citations omitted.] explanations sufficient without neutral “engaging process in a of careful deliber more, meaningless. Batson would be It during many ation based on factors” voir prosecutors take little effort for who would “engage he failed these dire or has adopt are of such a mind to rote “neutral desultory than voir jurors same more explanations” legitimacy which bear facial questions dire or indeed to ask them discriminatory but conceal a motive. We Mathews, 803 F.2d at 332.... at all?” do not believe the Court intended Finally, the trial court should evaluate a charade when it announced Batson. explanation itself. Butler, 731 S.W.2d at 269. As to the third Batson recognizes subjective Butler prong, properly suggests the court challenges per peremptory nature of objective that criteria are available to eval- pro mits their continued use in criminal explanation by uate the offered the State. time, Batson strict ceedings. At the same judge The trial should consider whether ly prohibits the use of chal peremptory similarly escaped situated white veniremen lenges racially discriminatory in a manner. challenges. the State’s The trial court Therefore, Batson require read we should also consider the relevance of the judge to the entire milieu of the assess justification challenging par- a State's objectively subjectively. The voir dire ticular venireman to the kind of crime judge personal, must consider his lifetime charged, nature of the evidence to be dire, experiences comparing his with voir by parties potential adduced both and the observations and assessments veniremen punishment guilty may pro- a verdict In explained by with those the State. addi duce. The trial court evaluated the “racial tion, personal he must consider both his context” of the case. This assessment re- prosecutor experiences with the quires consideration of the case of the wit- by evidence offered a defendant to show a defendant, nesses, the victim and the using pattern practice prosecutor or of a among other factors. peremptory challenges racially in a discrim Butler seems to require reversal inatory manner over the course of time. a other than is identi whenever trait race Other factors must be considered as cir explanation fied the State as the for its cumstances demand. challenge against peremptory use of a a however, Ultimately, judge the trial must juror, applies specifi unless the black trait all of information and intuitive focus carefully cally juror, to the tailored to gathered perceptions has to determine he. objectively of the case and is the facts prosecutor’s per- Butler, whether the use his proveable. 271. 731 S.W.2d at challenges proceeds from a racial- however, emptory Batson unequivocally, states discriminatory place ly motive. We thus “explanation the State’s need not rise to great responsibility judges, in con- our trial justifying exercise of a chal the level Batson, they, “experienced supervis- in lenge fident that for cause.” 476 U.S. at 97, dire, to decide if the S.Ct. at 1723. And voir will be able we believe that Batson leaves room for the State to circumstances concerning prosecutor’s cause, qualified panel thirty- challenges pri- strike for peremptory

use of creates thirty- these against four veniremen remained. Of facie ma case discrimination four, of the black 96, three were members jurors.” Batson, at black Both were race. the State defendant 1723. S.Ct. at peremptory nine chal- permitted to exercise peremptory chal- lenges and alternate one lenge. peremp- The its State used three of We turn now to consider the standard challenges mem- tory to strike the black appellate review of Batson issues. The final of twelve bers venire. discrimination, finding finding A jurors jurors and two alternate contained discrimination, finding is a of fact. of no race. no members of the black 564, City, 470 U.S. Anderson v. Bessemer peremptory used its asserted that the State 1511, L.Ed.2d 518 challenges to strike all members context, In a Batson race black from venire. that because the trial Court observed qualified The three members of the black findings “largely will on eval- judge's turn Williams, Judy A. Jewel were E. venire credibility, reviewing ordi- court uation Carter, Lynette W. Ko’ontz. The State great narily give findings those def- should dire, challenged During all three. voir Batson, 476 U.S. at n. erence.” “daughter’s that her fa- Williams indicated “[Fjindings n. 21. of fact 106 S.Ct. serving presently peni- time ther was clearly errone- shall not set aside unless ques- tentiary.” response to the same ous, regard given and due shall be Devasher, venireman, tion, Mary a white judge trial court to opportunity of the stepsons incarcer- stated her two Anderson, credibility of witnesses.” exer- penitentiary. ated 1511, quoting U.S. at remove peremptory challenges to cised 52(a). F.R.C.P. prosecu- Williams and Devasher. both 'clearly finding is erroneous’ “[A] explained challenges proceeded tor it, although support there is evidence to persons close from the belief that who have reviewing on the entire evidence is court favor- penitentiary are not relatives and firm conviction left with the definite jurors a case which the able State’s a has been committed.” mistake penalty. No other seeks the death State Anderson, 105 S.Ct. or friends in the had relatives veniremen Gyp citing United United States States penitentiary. 364, 395, sum, 333 found the State The trial court Thus, if the trial 92 L.Ed. 746 similarly situated to persons all struck plau of the evidence court’s “account explanation as to and that Williams in light its in of the record viewed sible clear, reasonably legitimate, Williams was re may not entirety, appellate] court [an by racial ani- specific and not motivated though it that had it verse even convinced mus. fact, sitting of it would as the trier been venireman The also struck black State weighed differently.” have the evidence Carter, stated that she had been who Jewel Id., 105 S.Ct. at 1512. burglaries for which victim of several apprehended. She also no one ever wap B. a No rape been victim. claimed have Against background, evalu this we the venire had been the other member of findings"with regard the trial ate court’s crime, although white of a two victim sex in this the' Batson issue case. veniremen, Henry McCloud and Carl Record, too had been parties stipulated they a admitted that The victims of per- prosecutor a crime.14The Seventy ex- member of race. the black challenged on ac- plained that he Carter of the venire were called as members sons experience with vic- previous Following count his panel in motions to the case. challenges Record. peremptory remove McCloud and Appellant used his challenges in a using peremptory in sexually jurors; related crimes as tims of court’s view, discriminatory The trial of sex manner. prosecutor’s in victims The clearly erroneous. spent an inordinate amount is not crimes have conclusion justice system, tend to point time the criminal is denied. system disillusioned with the and are good jurors. Appellant argues that the

not C. apply specifi- explanation does not State’s Appellant next asserts cally particular facts of the case overruling his motion to erred in trial court thus, pretextual. being tried and is prosecutor to disclose trial compel the said, previously the exercise As we have during voir dire. notes taken peremptory challenges product is the notes could be useful theorizes that these analyses variety subjective of wide explana corroborating impeaching personality perceived traits character and by prosecutor for his use tions offered prohibit by counsel. Batson does challenges. attorney’s An peremptory challenges long racial ani- “hunch” so are work opinions, theories and conclusions not the motive. mus is privileged. product and are therefore case, op- court had the this Carter, portunity prosecutor’s to assess the de- 1982). impressions formed meanor, questioning of his breadth prosecuting attorney during dire con voir venire, the use all members opinions. not cre stitute his Batson does puts peremptory chal- which the State its product privi exception an to the work ate lenges. found that The trial court also lege. victims, appellant, both of his and the ma- cau- Apparently out of an abundance of jority of witnesses the case were black. tion, the trial court conducted an in-camera advantage “any This fact discounts that a prosecutor’s notes taken review of the discriminating prosecutor might perceive in connection with the voir dire examination. Mathews, jury.” striking blacks from the that these notes contained The court found 803 F.2d at 332. “racial context” markings regard no comments or case, together judge’s with the trial markings than coded identified race other motive, prosecutor’s sup- assessment of open explained by prosecution ports the trial court’s conclusion that the find no error in the trial court’s court. We challenge State did not Carter as result ruling appellant discovery denying discriminatory of a intent. point is de- prosecutor’s trial notes. The Finally, challenged Annette the State nied. Koontz, claiming that she was inattentive during voir dire examination. The State VI. challenged Handly, per- Helen also white challenges lodges two next son, account of on inattentiveness. post-arrest his silence for the State’s use of Koontz’ trial court’s own observation of purposes impeachment. during supports dire demeanor voir atten- State’s conclusions as to her lack of

tiveness. A. 171, Hale, In v. 422 U.S.

The trial court found that United States 2133, (1975), the 45 L.Ed.2d 99 prima failed to establish a facie case of supervisory legit- Supreme Court exercised its discrimination. The record reveals imate, explanations power over the federal courts and declared non-pretextual, neutral after challenges a criminal defendant’s silence preliminary for State’s use of its warnings required against receiving in Miranda v. the three Black members of the 1602, Arizona, 436, explanations proffered by the 384 U.S. 86 S.Ct. venire. The (1966), sufficiently ambig clear, reasonably specific, are and L.Ed.2d 694 State probative have little value. legitimate. context” of the uous as to “racial 610, 2240, Ohio, 96 S.Ct. provides advantage Doyle 426 U.S. case no basis for si- ings induced to remain (1976), has not been Supreme Court 49 L.Ed.2d 408, at 2182. 100 S.Ct. pro lent.” 447 U.S. due a criminal defendant’s held that comments is violated when the State cess of the af Similarly, in the absence receiving Miranda his silence after in the Mi assurances embodied firmative warnings. The court reasoned that due randa warnings, it does not violate implicit an as Miranda warnings contain permit process for a state to cross-examina person’s silence will not be that a surance chooses to a criminal defendant who tion of Colorado v. Con See against him. used post-arrest silence as to his take the stand — -, -, nelly, 107 S.Ct. “A receiving Miranda warnings. prior (1986) (“The sole con 93 L.Ed.2d 473 entitled, situations, to leave such State Amendment, on which cern of the Fifth its own rules judge to the under government coer Miranda based is of the extent to the resolution evidence cion”). Thus, Doyle turned on the criminal postarrest be deemed to silence implied assur on the reliance defendant’s own testi impeach a criminal defendant’s warnings. ances of the Miranda Weir, Fletcher mony.” 455 U.S. 1309, 1312, 71 L.Ed.2d 490 102 S.Ct. however, Doyle does not apply, when a voluntarily speaks after criminal defendant receiving Miranda warnings. In such a B. circumstance, the Miranda warnings have trial court erred Appellant urges that the silent an inducement to remain not acted as permitted it the State to cross-exam- implicit assur- reliance on the nor is there impeach regarding him his failure ine and silence will not be used person’s ance that a exculpatory an statement to make against him. immediately upon arrest. On cross- police Charles, In Anderson v. examination, sought impeach (1980), de- 65 L.Ed.2d looking testimony that he was appellant’s made a statement after fendant Charles George Jones in order and Winston warnings. his Miranda receiving Charles get out of their of his intention to tell them driving while a stolen had been arrested operation, that after he had shot drug belonged who car to an individual car. The self-defense, to turn he decided Winston in his Ann strangled to death had been exchange following took in. The himself Arbor, Michigan than a week home less place: evidence linked Circumstantial earlier. Dakopolos) you wanted Q. (By Mr. And arrest, to the murder. After Charles yet are three yourself, clear there warnings, his Miranda receiving after you don’t tell police officers there and he had stolen police Charles told anything robbery at 2108 them about Arbor, two approximately in Ann the car Vine, shooting Lincoln at the about trial, station. At miles from the local bus Apartment, you? did Garden however, he had sto- testified that Charles he was a explained A. I to them that establishment car from a business len the dope dealer and— On cross-ex- to the bus station. next door anything Q. you tell them But didn’t asked, amination, “Don’t prosecutor Jones, shooting did of Winston about the that if it were the you it’s rather odd think you? door you stolen the car next had truth [that They ask me. A. didn’t come didn’t to the bus station] clear thought you wanted to Q. But I anybody at the time forward and tell self-de- it was yourself and claim that arrested, you got the car?” where were police officers You had three fense. “Doyle held that does The Court say a word about right there. You didn’t merely cross-examination that apply not Jones, you? did Winston statements. inquires prior into inconsistent talking to me. really They A. wasn’t use of questioning makes no unfair Such go to going to Q. thought you I were silence, a defendant who voluntar- because them. police station and tell receiving Miranda warn- ily speaks after

69 Evi- Wigmore, 3A asserted. J. have been apart- going IA. was to—back (Chadboum 1042, rev. p. 1056 sec. Lincoln to find out what dence ment at Gardens brother, 1970). jurisdiction formulate George’s Winston. Each happened to to determine rules of evidence its own interposed by defense objection was No inconsistent with prior silence so during exchange. review We counsel impeachment present statements plain for error. probative. such silence reference to indicates, Nothing in the record nor does Fletcher, 606, 102 at 1311. S.Ct. allege, given appellant appellant per it is Missouri law hold that under We warnings immediately upon his Miranda to use a criminal for the State missible Prospect. In the ab- arrest at 34th and post-arrest, pre-Mi- Miranda, immediate defendant’s implicit assurance of sence of im warning purposes to re- silence appellant was under no inducement randa neutral ex precludes appellant’s testimony when a peaching main silent. Fletcher his ex exculpatory federal constitutional statement claim of error on of an pectancy grounds. testimony a result of a defendant’s ists as in probative of silence is and defendant’s Fletcher, appel validity Under testimony. in that consistencies turns on whether Missouri law lant’s claim post-arrest, pre- testimony raised a permits impeachment appellant’s with Because warning Appellant relies expectation silence. that he Miranda and reasonable natural Mathenia, (Mo. 840 702 S.W.2d exculpatory State v. statement would have made an 1986), denied, 477 U.S. 106 banc cert. arrest, we at the time of his believe (1986), 3286, 91 L.Ed.2d 574 and State regarding appellant’s si- questions State’s 1970), Stuart, (Mo. 19 banc 456 S.W.2d of his arrest as to the lence at the time law does proposition for the that Missouri probative an day events post-arrest permit impeachment testimony in his at trial. inconsistency silence. error, plain or no trial court committed otherwise, impeachment allowing relies upon The cases which appellant. challenged by the each involve a criminal defendant who Miranda-type warning. In each given a

case, attempted to make use prosecutor C. post-Miranda warning silence. Because closing argument, made During the State warnings given this no had been Miranda concerning objection remarks over several formed the appellant at the time his silence following at 34th appellant’s silence arrest impeachment, find the cases basis we prior appellant receiv Prospect distinguishable. upon appellant relies warnings. Initially, reaf ing we Miranda pos law that the trial court firm settled de

Appellant testified that he had controlling clos discretion in sesses broad police and tell cided to turn himself into the McDonald, argument. 661 ing State v. everything he knew about the Jones broth (Mo. 1983), de 506 banc cert. drug further testified ers’ business. He nied, prior that decision that he made Gilbert, (1985); George drug house L.Ed.2d encounter with at the 1982). George’s only and subse S.W.2d and that arrival allowing rejecting going to court’s discretion in quent prevented events him from only argument commitment of counsel is reversible police station. Given the where appellant expressed an of discretion to this mission which when there is abuse trial, plainly unwarranted. nearly argument it is inconceivable that police Armbruster, remained silent when the would have challenge to the (Mo.1982). Appellant’s found him. regard prosecutor closing remarks traditionally has allowed Common law following but before arrest his silence impeached by previ- to be their witnesses warnings fails for receiving Miranda to state a fact in circumstanc- ous failure VI, B, supra. naturally would reasons stated in which that fact es ings D. has not been induced to remain si lent,” may impeached prior in he be with Appellant argues that the trial court Anderson, consistent statements. permitting erred in cross-exam- 2182; State v. Van at 100 S.Ct. at concerning testimony him his ine that cer- Doren, (Mo.App. 657 S.W.2d 715-16 portions post-M- tain of his post-arrest, 1983). Similarly, having make a elected to randa statement were inaccurately tran- scribed, police, statement to the who police and his failure to inform the defendant “selectively of inaccuracies. silent” im remained peached by omissions that statement. inflicting George After Jones’ mortal Trice, (Mo. holding cell, appellant wounds in the was App.1979). given Mi- taken to an interview room randa warnings. signing After written appellant was “silence” claims right to waiver of his remain silent and to improperly by used case the State counsel, gave presence appellant of his appellant’s to correct the al failure statement to Detective E. Clarence Gibson. leged voluntary his state inaccuracies of The statement was transcribed subse- police. find ment to the We no indication quently by into read evidence Gibson at any way that such “silence” induced part of State’s case chief. by the Miranda implicit assurances trial, testify At defendant chose to in his Furthermore, warnings. appellant is not examination, appel- own behalf. On direct claiming police that his statement exculpatory lant testified to an version of gave he His was false at the time it. events inconsistent the written state- argument post-Mnmeto is that his state by ment read Detective Gibson. Under inaccurately by ment was De transcribed cross-examination, appellant testified that question prosecutor’s tective Gibson. The portions by of the statement transcribed inquiry regarding appellant’s did make not pros- Detective Gibson incorrect. The accuracy “silence” on the but focused “Well, asked, ecutor have ever told appellant’s ques statement. State’s anybody they that true cor- weren’t proper impeachment. tion was Appellant responded rect?” he had attorney alleged told inaccuracies Appellant’s argument assumes copy after had received a of the state- right silent that the to remain is automati approximately year ment one trial. before defendant, cally reinstated when a criminal Thereafter, prosecutor commented on right, speaking. who waives the ceases the fact that neither nor his attor- may as While it is true a defendant ney anyone prior had informed trial that right any point silent sert his to remain at by previously the statement taken Detec- following an during interrogation, an even tive was inaccurate. re- Gibson right, it follow initial waiver of the does not Doyle, lies on right automatically is that the reasserted proposition exchange for the that this interrogation. We believe close post-arrest an unconstitutional use right that once the to remain silent silence violation his Fifth Amendment waived, unless the the waiver continues rights. disagree. We right affirmatively in to remain silent case does not involve a de This by voked a defendant. Absent an affirma fendant maintained silence after re who right si tive reassertion of the to remain Instead, ceipt government assurances. lent, implicit there is no reliance appellant voluntarily give chose to a state assurances Miranda warnings that si arrest, ment after his later testified at trial carry penalty. no lence will inaccurately tran statement was prosecutor’s im- scribed, We find no in the gave a error version events dif peachment appellant’s testimony ferent from that state contained recording Detective “who of his statement ment. Because defendant voluntar Miranda warn- Gibson was receiving ily speaks after accurate.

71 example—is highly VII. record for both relevant permissible punishment phase. at the Appellant next takes issue with the trial Raspberry, The rationale of that discussion objection court’s failure to sustain an to the proclivities preju- of a defendant’s criminal closing argument during pun- State’s jury focusing guilt is dices a which phase ishment if of trial that the death issue, inapposite is the focus of penalty imposed, appellant were not would punishment inquiry solely is on the which pose danger a to other inmates and correc- imposed. would be personnel.15 argument, tions Such an contends, beyond the went evidence and regarded penalty generally The death is passion prejudice created such that he serving primary purposes: two societal a entitled to new trial and to have the capital retribution deterrence of crimes death sentence set aside. 183, Gregg, by others. 428 U.S. at 96 S.Ct. Court, at 2929. The and this A. recognized pur- Court have each a third law,

Under Missouri pose: incapacitation a criminal defendant dangerous “the guilty found consequent prevention murder is entitled to criminals and the presentence hearing jury a before the they may crimes that otherwise commit guilt. Gregg, presen- 28, which determined his At the the future.” 428 U.S. at n. hearing, Bolder, only 28; tence “the issue shall State v. 96 n. S.Ct. at 635 punishment (Mo. 1982). determination of the to be im- S.W.2d also See banc 565.006.2, Trimble, posed.” (now v. Section RSMo Sec- State 565.030.4, Cum.Supp.1984). Ap- 1982) tion RSMo (“[Djeterring those otherwise pellant argues undeterred”). State not ar- gue proclivities a defendant’s criminal aggravating One of the circum punishment phase of the trial. presented jury stances in this case We question believe this is a of first appellant was that committed murder in a impression. Our cases hold that while place of lawful confinement. Section 565.- may argue State for a penalty severe as a 012.2(9), (now Cum.Supp.1983 RSMo Sec others, may argue deterrent it not 565.032.2(9), tion Cum.Supp.1984). RSMo necessity deterring the defendant on tri legislative purpose The aggra behind this committing al .from future crimes. concerns, vating among circumstance other

Raspberry, 452 S.W.2d (Mo. 172-73 things, the deterrence of the individual 1970); Mobley, who, criminal despite defendant lawful con (Mo.1963). 580-81 upon None of the cases finement, ag chooses to kill. When this relies, appellant however, involve a gravating present, jury circumstance is penalty death featuring case a bifurcated may properly consider whether an incarcer guilt/punishment hearing. likely place ated criminal defendant personnel the lives of corrections and other punishment focus phase prisoners at risk if a sentence other than penalty entirely of a death case is different imposed. death is We find no error guilt phase. jury from that of the argument. State’s only asked to consider not the nature and circumstances of the crime but also the B. Gregg character of the defendant.

Georgia, 153, 197-98, Appellant argues aggra 2909, 2936-37, vating L.Ed.2d 859 Evi committing circumstance of a mur argument dence and place which would not be der while of lawful confinement permitted guilt phase—general at the ref jury only should be submitted to a when a prior person erences to the defendant’s criminal sentenced murder is committed prosecutor argued fifty years, "nothing 15. The had al- mum of that he would have ready duty protect committed a murder while lawful con- to lose" and that the has a finement, people that should the death not be "the danger.” be in correctional whose lives could imposed, he would be for mini- incarcerated McDonald, 661 support the verdict. S.W. prison. appellant was under Since Bolder, 500; sentence, arrest, 635 S.W.2d at 679. he con- 2d at only but under ag- it was error to submit that tends that capi for To sustain a conviction jury. gravating to the circumstance murder, prove the State must that the tal Trimble, In this Court decided that defendant acted with deliberation. Section 565.001, expressed (repealed legitimate purpose The state RSMo effective October 1984).16 merely present not to is in the statute is deter Deliberation impris- capital prisons performed in where act is with cool and delib murder McDonald, may not, to but deter them state of mind. S.W. onment erate LaRette, 501; prece- every It not a 648 S.W.2d case. condition 2d at 1983). capital penalty to death for mur- 102 Direct evidence dent necessary support aggravating circumstance to der with the deliberation is conviction; killing in a it is prison capital that the was murder sufficient given previously reasonably deliberation is inferred defendant had been surrounding life sentence. from circumstances 102; LaRette, 648 murder. at 737. Nor do we it is 638 S.W.2d believe Bolder, at 680. 635 S.W.2d imposing the precedent to death a condition person charge penalty that the with com- appellant The evidence showed that mitting in lawful confinement murder while George began his and Winston search for statutory con- be under sentence. The heWhen did not at the restaurant. Jones precedent lawful confinement. dition immediately Joy to them, he find went aggravat- justifications for this policy killing apartment. Winston Before Jones’ circumstance, “deterring those other- there, appellant he announced that intend undeterred; guards protecting prison wise killing kill After ed to the Jones brothers. dangerous in a daily who serve the state Winston, drug ato house at appellant went environment; protecting prison other George. expected he find When to relatively inmates who are defenseless arrived, George appellant him at forced environment.”, Id., equally prison are him, car, “I telling killed gunpoint into a strong finds himself whether the defendant kill your going you.” brother and I’m as in lawful confinement an incident arrested, George appellant After a result of a sentence. arrest as through managed step his appellant point denied. who, as a George, handcuffs attack back, his being behind result handcuffed

VIII. Ultimately, essentially defenseless. argues holding next court cell George killed in the once, overruling stomping erred his motion new trial head not but on his ground on the that the evidence was insuf- several times.

ficient as a matter of law to establish appellant had The record reveals that necessary to a con- element of deliberation plan opportunities four to abandon least murder. viction failing to find George: once after to kill restaurant; killing after Win- reviewing a that the evidence is him at claim ston; by the again was arrested support one or more of the after he insufficient to crime, fourth time when police; the evidence and a elements of a we view State, battering interrupted by after most to the officers light in the favorable George in the into initial semiconsciousness accepting true all evidence and inferenc- as imagine holding It is difficult support the verdict and cell. es that tend out a de- greater carrying commitment to disregarding all evidence and inferences by appel- sign displayed than was contrary. inquiry is limited to death Our evidence, no delibera- light argue in the To that there was viewed lant. whether the State, flies in the face appellant’s acts most is sufficient tion favorable 565.020.1, Supp.1984. see Section Currently, RSMo Cum. ignores (1982); Bold point reason and the evidence. The 74 L.Ed.2d 188 er, Trimble, 673; is without merit and is denied. 638 S.W.2d 726; Guinan, 665 S.W.2d at 325. The killing of another while confinement is a

IX. offense; particularly serious we do not hes Finally, appellant argues that firm itate to affirm the death penalty of death in this case is excessive grounds policy and a deterrent of social cases, disproportionate to similar con others in confinement. to the killer and sidering defendant, the crime and the Shaw, 677; Roberts, See 636 S.W.2d at Court, indepen that this exercise at 870. review, dent should set aside his sentence. 565.014.3(3), crime, (repealed Upon Section RSMo Octo consideration of the the de- 1, 1984) (now 565.035.3(3), other cases in death ber Section fendant and which the given, Cum.Supp.1984). penalty RSMo has been hold that we penalty death is neither excessive nor dis- The facts of this case show a level of proportionate in this case. inhumanity depravity and similar to other judgment The of the trial court is af- in im cases which the death firmed. posed upon finding by depravity murder involved “torture or BILLINGS, C.J., DONNELLY, that,

mind they as a result thereof WELLIVER, HIGGINS, RENDLEN and outrageously wantonly or vile or hor JJ., concur. Guinan, rible or inhuman.” State v. denied, (Mo. 1984); cert. S.W.2d 325 banc BLACKMAR, J., part concurs in 873, 227, 469 U.S. 105 S.Ct. 83 L.Ed.2d 156 part in in separate opinion dissents Smith, (1984); State 649 S.W.2d 417 filed. denied, (Mo. 1983), 908, cert. banc 464 U.S. BLACKMAR, Justice, concurring in (1983); 104 S.Ct 78 L.Ed.2d 246 part dissenting part. LaRette, (Mo. 1983); 648 S.W.2d 96 banc judgment I concur of affirmance Blair, State v. (Mo. 638 S.W.2d 739 banc parts of the conviction and all of the denied, 1982), cert. 459 U.S. 103 S.Ct. principal opinion except VI and VII. New (1983); 74 L.Ed.2d 1030 State v. lon, (Mo. 1982), cert. specifically approve disposition banc I denied, 459 U.S. Batson applied pre- issue as to this chased Batson trial. L.Ed.2d It is difficult for trial coun- George gunpoint Jones at and stated to him sel to reconstruct the situation which exist- brother, just your that “I killed many ago, and I’m ed peremptory months going Later, you to kill challenges too.” prosecut- were made. Now that free, George with his arms ing attorneys judges assaulted have been alerted whose hands were cuffed to the Batson requirements, behind his back. it will be eas- battering George Even after into analyze particular Judge a semi ier to cases. Rob- state, appellant proceeded conscious quite properly points ertson out that we head, jump inflicting on his place major mortal wounds. must judges. reliance on trial Appellant’s actions great were conscienceless and responsibili- Prosecutors also have a pitiless; they display depravity ty making given of mind for sure that the reasons support penalty. represent sufficient to the death simply On bonafide concerns and not penalty given appellant this basis the death dressing justify discriminatory window disproportionate. is not strikes.

Moreover, appellant VI, place regard was in principal With to Part opinion question lawful confinement at the time of the mur demonstrates der for which he is sentenced to death. he about the defendant’s silence at the time Roberts, (Mo. to, See State v. objected 709 S.W.2d 857 arrested was so that Shaw, 1986); banc plain 636 S.W.2d 667 review is under the error standard. denied, 1982), that, cert. logical It is to assume if the defend- life, get er can on with his and so turning himself purpose ant had had a in, purpose have this get would announced two children can on with their evidence when arrested. Inasmuch lives, think, having every instead objection, the State was received without years, they next have a day argument. to refer to it in was entitled inup peni- or a father locked brother tentiary. gentlemen, I Ladies and sub- I serious reservations about have only admissibility that there is one verdict propositions broader as to mit II, VI of post-arrest silence as set out in Part as to and that is you can return Count opinion principal opinion. principal a verdict of death. particular convincing facts of the arguments is The first of these obscene case, commenting I no but see occasion point reminding days us of the broadly more these circumstances. under place no an American Hitler. It has opinion narrowly drawn principal argument relieving about courtroom. The argument limiting possibility about the presence family of his the defendant’s killing engaging in of the defendant’s objection No was made little better. ap- penitentiary, so that it violence arguments, and the second either these killing in custo- plies only to cases in which response, I subject but was the of effective aggravating dy assigned as an circum- they may properly con- believe limitation, I spite stance. believe this sidered context. general that the rule defendant’s arguments prosecutor’s I Because of the predict- future criminal conduct not be willing to affirm the death sen- am argument apply should here.1 ed oral tence, re- would remand the case for distinction, attempted the basis phase. penalty trial phase is im- only here, in a pacted is not sufficient. A

one-phase no trial would have occasion un- future conduct

consider defendant’s guilty. less it him found prosecuting limit to

There should be a attempts jury.

attorneys’ to inflame the unduly This has tolerant In the of the ESTATE OF Susie Court been Matter THOMAS, arguments prosecutors’ other Deceased. respond- murder cases.2 Prosecutors have Missouri, By DEPART STATE of inflammatory ed with continued broad- SERVICES, MENT OF SOCIAL sides. I that there a time for believe Plaintiff-Appellant, control. v. other My conclusion is fortified two examples present prosecu- in the case. The BOWLING, Representa Personal Wanda argued tor as follows: tive, Defendant-Respondent. I, lawful, Why and as work- should No. 69242. community, work the citizens Missouri, just lives Calvert Court rest of our natural so penitentiary for can En Antwine live Banc. life or at least rest of natural 20, 1988. Jan. years prison? until he’s served 50 He continued: sen- it much more humane to

And isn’t his broth- this man to death so that

tence Driscoll, (Mo. e.g., See 711 S.W.2d 512 Raspberry, S.W.2d State v. 1. See State v. (Mo.1970); Roberts, 1986); Mobley, State 369 S.W.2d 709 S.W.2d 857 banc 172-73 (Mo. 1963); Tiedt, McDonald, 1986); State v. 357 Mo. (Mo. 661 S.W.2d banc State v. Heinrich, (1947); 527-29 1983). (Mo.App.1973). 113-16

Case Details

Case Name: State v. Antwine

Court Name: Supreme Court of Missouri

Date Published: Dec 15, 1987

Citation: 743 S.W.2d 51

Docket Number: 67720

Court Abbreviation: Mo.