*1 adjudications. Section 386.510 contem-
plates reviewing that if the Missouri, court reverses Respondent, STATE of decision, the commission’s the case is to be remanded to the commission for further If
proceedings. more than one circuit Gary BLACK, Appellant. W. court were to enter such orders No. SC 82279. case, same might given the commission be contradictory by directions different re- Missouri, Supreme Court of viewing Thus, courts. when statute En Banc. court,” refers to “the means one court, circuit whose decision is then sub- July 2001. ject 386.540.1, to appeal, under section “to Rehearing Aug. Denied having jurisdiction a court appellate this added.) (Emphasis state.” The “record appeal” “original includes the transcript exhibits,
of the record testimony
certified commission and filed in court_”
the circuit Section 386.540.1. See, obviously
This appeal. means one Brown,
State ex rel. Southwestern Bell v. short,
the statute that there
can proceeding. be more than one review
Once petition the first for review was case, County
filed in Cole Circuit
Court, authority there was no for the Jas-
per County proceed upon Circuit Court to
the same record.
Conclusion
This Court makes prelimi- absolute its
nary prohibition. order of The circuit for Jasper County
court is directed to
dismiss the underlying petition for review.
All concur. *5 Percival, De-
Rosemary E. Asst. Public fender, Appellant. Kansas City, Nixon, Gen., (Jay) Atty. W. Jeremiah Gen., Atty. Burgess, K. Asst. Jeffer- Breck City, Respondent. son BENTON, Judge.
Gary Black convicted of first- W. murder and sentenced to death. degree jurisdiction has This Court exclusive V, Af Mo. Const. art. sec. 3. appeal. firmed. *6 2, 1998, An- of October evening
On Martin, Mark Wolfe and victim Jasоn drew Joplin met at a restaurant. O. Johnson beer, eating drinking dinner and After night- to a they go decided to downtown got Martin victim into Mar- club. and the pickup, 1996 Ford F-150 while Wolfe tin’s route, they En in followed his Camaro. Martin stopped at convenience store. in their vehicles while and Wolfe remained and purchased victim entered the store and a can of a 40-ounce bottle of beer line, in the victim chewing tobacco. While Tammy Lawson. The stood behind S. tape of the victim and Lawson
viewed line, in together girlfriend Lawson was the defendant Black, parked also out- Gary W. who was the store. the victim exited side When store, de- him out to the pointed Lawson phase, Law- (During fendant. upset and told testified that she was son made at pass” that the victim “a defendant her.) degree The victim and Martin then left the murder. The later recom- penalty, store in the with mended pickup, following finding Wolfe the death two statutory aggravators prior his serious Camaro. Defendant Lawson were as- — car, depravity saultive сonvictions and defendant’s close"behind the mind. Cama- The trial ro. court sentenced the defendant to death. stoplight When Martin at the stopped at Joplin, pulled 5th and alongside defendant I. right began lane. Defendant argues Defendant the trial “exchange words” the victim. with Defen- clearly court abused discretion in refusing car, got dant out of through his reached a one-day attorney continuance when one the passenger window of the pickup, and was sick and to conduct unable the death neck, stabbed the nearly victim in sev- qualification part voir dire.1 The attor ering artery his completely carotid it, ney who did conduct defendant con severing vein. jugular his tends, unprepared. Defendant further Defendant immediately returned to his guideline of a asserts violation that a pickup, car. staggered Victim left capital represented by defendant be two car, over to defendant’s and threw the qualified every attorneys stage. at See bottle It of beer at him. is unclear wheth- 2.1, Ap Guideline ABA Guidelines (It er the bottle struck defendant. did pointment and Counsel in Performance of during penalty phase become clear (1989 ed.); Death Penalty Cases Rule scene, leaving commented, defendant 29.16. down,” nigger “One and threw the knife fact, was represented by window.) out the car Defendant then fled attorneys every stage, two including to Oklahoma. (Another attorney voir dire. served as to 6 deep— stab wound—4.5 inches second chair in of the sick place attorney.) bled profusely. Bystanders attempted to A principal attorney conducted voir bleeding clothing slow the and towels. dire, including qualification. the death Paramedics to find the arrived victim un- The court continuance refused a because *7 responsive, from massive blood loss. attorney “capable experi- that and airway, Blood drained into victim’s de- case,” enced in this sort of counsel as him priving oxygen. The victim died by confirmed statements. her own days three later. are within the Continuances sound Defendant was аrrested in Oklahoma on court, “very discretion of the trial and a During a Missouri inventory, po- warrant. strong required to showing” prove
lice found knife sheath in empty an his car. Schaal, 659, abuse. State v.. Lawson, Tammy Based on a statement (Mo. denied, 1991), 666 cert. 502 U.S. in grassy an officer knife found the area 976, 1075, 112 117 L.Ed.2d S.Ct. 140 . near a 20 cemetery, about blocks from the (1992) trial court Because the found this crime scene. principal attorney capable experi and hours, enced, denying After less than it did discretion deliberating two not abuse a continuance. guilty found defendant of first error, Eighth nearly every point Amendments to the In and Fourteenth Constitution, I, rights process and article claims denial of to due United States sec- his law, 10, trial, 18(a) tion of the Missouri fair and freedom from cruel and and 21 Constitu- Fifth, Sixth, punishment, unusual under the tion.
785
severity
II.
argument
cutor’s
that the wound’s
here,
shows an intent to kill. On the facts
A.
is almost frivolous. Defen-
this assertion
defendant,
According to
the trial court
neck,
victim in the
inflict-
dant stabbed the
testimony
should have admitted
wound,
deeр
nearly
ing
4.5
6.0-inch
care,
victim died as a result of bad medical
severing
artery
completely
a carotid
rather than
Specifical-
defendant’s attack.
severing jugular
vein.
ly,
may
defendant believes that the victim
alleges
malprac-
further
Defendant
physician’s
have survived but for his
fail-
testimony
tice
would counter evidence of
ure to administer
Hepa-
the blood thinner
the medical efforts to save the victim’s life.
rin.
argument
preserved
appeal,
This
is not
fact,
In
the victim received the
discussed,
adequacy
and as
of the vic-
blood thinner Lovenox.
According
de
tim’s medical treatment is irrelevant.
fendant’s own offer of proof, treating phy
sician Dr. Meier was advised to administer
Finally,
defendant claims that mal
Heparin,
Lovenox or
and administered Lo-
Dr.
practice
impeach
evidence would
Mei
venox.
er, by showing
exaggerate
his motive to
injuries.
argument
the victim’s
This
is also
Any negligence of the victim’s doc
rate,
any
At
preserved
appeal.
tors is irrelevant if
proximate
dеath is the
properly
trial court
exercised discretion in
result of defendant’s conduct:
im
refusing
impeachment
to allow
on an
The unlawful act need not be the imme-
material or
collateral matter. See State
enough
diate cause of death.
It is
248,
banc),
Wolfe, 13 S.W.3d
258
cert.
contributing
cause,
it be a
proximate
denied,
114,
121
148
U.S.
S.Ct.
although
contributing
other
causes
(2000).
L.Ed.2d 70
have intervened.
Williams,
111-12
B.
Bolder,
See also State v.
foundation,
1982),
Citing
inadequate
an
defen-
cert.
denied,
dant attacks the admission of Exhibit 10—
U.S.
103 S.Ct.
(1983) (immaterial
L.Ed.2d
the knife used to stab the victim. The
whether
victim
foundation to admit the knife consisted of
resulting
died from an infection
stabbing,
Sergeant
testimony,
Goodwin’s
Dr. Meier’s
rather than from the
itself).
testimony,
empty
11—an
knife
stabbing
Exhibit
sheath.
case,
treating physician
both the
*8
pathologist
and the
testified that the victim
that after
Sergeant Goodwin testified
died
the stab wound and the direct Tammy Lawson made a statement
to the
that
results of
stab wound. The trial court
him
police, the Chief of Police told
to look
refusing
did not
to
abuse discretion
grassy
a knife in the
area near a
testimony
alleged
admit irrelevant
im
cemetery.
specific
Defendant contends
proper medical care.
v. Sim
See State
double-hearsay,
by
that
this
the State
(Mo. banc),
mons,
165,
944
178
S.W.2d
testimony
calling
without
“back-doored”
denied,
953,
376,
cert.
522 U.S.
118 S.Ct.
during guilt phase.
(During
the witness
(1997).
Defendant U.S. (1967). hearsay testimony. identification See Maxwell, 382, v. 502 395 State S.W.2d improp hearsay testimony The test is whether
(Mo.App.1973). While subsequent explain to con is admissible outcome-determinative. er admission was duct, prove the truth Barriner, 139, it is not admissible v. 34 S.W.3d 150 State Leisure, the matter asserted. State v. 2000). prejudice from the When 1990). 875, 796 S.W.2d 880 of evidence is out improper admission repeated Lawson’s statement —as come-determinative, required. reversal Ex that used for its truth: Goodwin—was finding Id. A of outcome-determinative weapon 10 the murder that de hibit judicial conclusion prejudice expresses cemetery. threw near the fendant evidence so erroneously that the admitted that, when considered influenced Dr. Meier testified that the knife blade all against evidence with and balanced 4.5 to that inflicted the victim’s wound was admitted, there is a reasonable properly long guessed that was 1.0 5.0-inches have ac probability that would Meier, According wide. to 1.5-inches erroneously admitted quitted but for the the knife that Exhibit 10 “could have” been testify evidence. Id. Meier did not wounded the victim. distinguishable from
that Exhibit 10 was A be reversed conviction 5 any other non-serrated knife about into evidence is weapon when a admitted long and 1 inch wide. This consis- inches not similar hearsay, is to the crime and tency, coupled with Goodwin’s unconnected 10 inadequate foundation to admit Exhibit in the crime. See weapon to the involved weapon. 276, as the murder 353 Mo. Wynne, State v. (1944); 294, Perry, 689 S.W.2d 300 State v. in the knife sheath —admitted later Grant, 123, v. (Mo.App.1985); 125 State shape the size and trial —indicates (Mo.App.1991). This hold, again this might knife it but line of distinguishable from case is similarity weapon. the murder shows a during the the evidence cases because here objects to the admis separately Defendant testi Dr. Meier’s guilt phase, particularly its seizure oc sion of the sheath because Exhibit 10 is sim mony, demonstrates Indian land in Okla curred on American kill the victim. weapon used to ilar to However, homa. because defendant 543, 551 Rehberg, 919 S.W.2d See descent, not of Native American victim are Silvey, v. (Mo.App.1995), citing State apply. So special protection does 662, 667-68 Bartlett, 2,n. 465 U.S. lem n. 79 L.Ed.2d S.Ct. that de- overwhelming The evidence is (1984). n. 2 fact, de- the victim. fendant stabbed stabbing closing acknowledged the fense finding The trial court erred Be- self-defense. argument but claimed Dr. testimony' Sergeant Goodwin’s —-with probability cause there is no reasonable testimony and the admission of Meier’s *9 acquitted have but jury that the would to sufficient foundation knife sheath —was evidence, the er- erroneously admitted weapon. the murdеr admit the knife as the murder admitting in the knife as ror case, However, in the trial court’s beyond a reasonable harmless weapon is constitutes harmless of the knife admission California, 386 doubt. Chapman v. eiTor. See
c. 3. prosecutor Defendant contends the ar- 1. in gued impermissi- facts not evidence and Defendant claims that the trial court bly During referred to excluded evidence. refusing erred in to let display his counsel rebuttal, guilt-phase prosecutor said: ruler jury during closing standard to the every deliberated inch of the “[Defendant] defendant, argument. According to in way, because his mind a black man had ruler would demonstrate that Dr. Meier audacity inadvertently to touch his exaggerated the severity of the wound. girlfriend.” objected Defendant to “facts jury evidence.” The court told the The trial court has broad dis testimony,” recall the “endeavor to reject cretion to admit or demonstrative prosecutor, “Try stay directed the with- Holmes, evidence. State v. 609 S.W.2d testimony.” (Mo. 1980). 132, 135-36 banc The court refusing did nоt abuse discretion in Then, later, transcript pages four jury admit the ruler. The need a did not prosecutor stated: credibility ruler to determine the of Dr. poor The fact of the matter is Jason Meier, the lengths as of 4.5 and 6.0 inches today Johnson is dead because he was a are knowledge ju within the common black wrong place man Clark, rors. See State 926 S.W.2d wrong— (Mo.App.1996). [Objection “facts not in to] evidence.” [Overruled Court.] 2. time, In the wrong place wrong at the During guilt-phase closing argument, it, paid ultimately, he’s now
defense counsel showed the a 40- with his life. ounce bottle to potential demonstrate its as a weapon. objected The State that the evidence, From the party evidence, bottle was not into admitted nor may argue inferences are supported similar to the victim’s bottle. The trial Barton, by the facts. State v. objection court sustained the and instruct- 1996). 781, 783 defen While ed the to disregard display. De- epithets dant’s racial were not admitted fendant appeals, alleging the demonstra- until penalty phase, race evidence was tion was critical to defendant’s self-defense presented during guilt phase. The vic argument. race, race, girl tim’s defendant’s race, friend’s and the taped encounter at The trial court has broad dis the store all in prose were evidence. The in controlling cretion closing argument, may argue cutor inferences from the evi rulings and its are reversed for an dence. abuse of prejudicing discretion the defen dant. Ferguson, 2000). Because counsel used an item outside the evidence in order urges plain Defendant as error to dramatize what adequately de the trial court did not sponte sua by testimony, prop scribed the trial court order a prosecutor mistrial when the ar erly argument gued, objection, refused the and demonstra without the victim Booker, tion. State v. died of his stab wounds. Because defen prohibited presenting dant was evi- *10 788
dence that medical error caused
938
at 898. As discussed in
victim’s
S.W.2d
death,
section,
beliеves that
prosecu-
defendant
next
evidence of
ample
delibera
presented.
tor
commented
impermissibly
on excluded tion was
by
evidence. Defendant waived this claim
E.
Parker,
v.
objecting
not
at trial. State
886
claims
(Mo.
Defendant
insufficient
1994).
908, 922-23
S.W.2d
banc
evidence that defendant “deliberated” be
Moreover,
that
proposition
medical er-
stabbing
required
fore
the victim—as
for
ror caused the victim’s death was not
first-degree murder conviction. Section
clearly supported by defendant’s
offer
own
565.020.1
Review is
Thus,
RSMo 2000.2
limited
proof.
the trial
properly
court
to whether
is sufficient
a mistrial
there
evidence for
refused to declare
when the
juror
guilt beyond
a reasonable
to find
prosecutor argued that
the victim died
v.
being
Dulany,
from
in the neck
defen-
reasonable doubt. State
781
stabbed
(Mo.
1989).
52,
dant.
S.W.2d
55
banc
The evi
dence, together
all
reasonable infer
D.
ences, is
in the
most
light
viewed
favorable
error,
challenges,
plain
as
Defendant
Clemmons,
to the verdict. State v.
753
spontе
trial
to sua
court’s failure
instruct
(Mo. banc),
901,
denied,
cert.
S.W.2d
904
Contending
offenses.
lesser-included
948,
380,
488 U.S.
102 L.Ed.2d
109 S.Ct.
support voluntary
the facts
man-
(1988).
369
murder,
slaughter
second-degree
or
defen-
followed
Defendant
the victim
dant argues that
lesser-included-offense
mile,
minutes,
nearly
for over
10
required
capital
are
cases.
instructions
car,
getting
walking
before
out of his
over
Alabama,
625,
See
v.
447
100
Beck
U.S.
victim, reaching through
to the
the win
(1980).
2382,
S.Ct.
L.Ed.2d 392
65
dow,
neck.
stabbing
him the
Delib
may
giv
Defendants
waive the
any
eration
length
reflection for
cool
ing of lesser-included-offense instructions.
565.002(3).
time,
brief. Section
however
(Mo.
Ervin,
905,
State
922
v.
Clemmons,
“the evidence
defen
denied,
1992),
954,
banc
507
113
cert.
U.S.
steps”
dant had to take a few
toward the
1368,
(1993), citing
S.Ct.
To find the trial court all the infer circum must misdirected or failed to deliberation have “so Johnston, 957 in stances. jury as to cause manifest instruct the 1997), denied, Folder, justice.” cert. justice miscarriage 747-48 otherwise, statutory ci- tations are to RSMo 2000. Unless indicated all
789 1150, 1171, 522 Johns, U.S. 118 S.Ct. 140 L.Ed.2d valid waiver. State v. 34 S.W.3d (1998). (Mo. 93, 2000); Knese, 181 116 State 759, banc),
985 776 de cert. nied, 526 U.S. 119 S.Ct. III. (1999). Tellingly, L.Ed.2d 1017 defendant A. alleges prevented never that he was from trial, days Five before defendant re- appearing, any or that his absence quested to waive his Sixth Amendment Rather, thing but intentional. he contends right present to be at prosecu- trial. The by relying the trial court erred on his later, objected. tor days Two the trial waiver, requiring and not him to renew it court ordered defendant to be present. personally. The trial court relied properly present Defendant was guilt phase, on representation of defendant’s attor except for the instruction conference. ney. guilty, Once found again defendant re- Defendant contends that quested to be In response absent. to the trial holding court erred in the instruction questions, court’s defendant stated that his conference without him and only with his decision was knowing and voluntary. The of presence. counsel’s waiver his The law granted trial court request; his is settled that may counsel waive defen
was absent from all the penalty phase.
presence
dant’s
at an instruction confer
attorney
His
reiterated his desire to be
ence. Annotation:
or
Exclusion
absence
absent the
day
penalty
second
of
phase.
defendant, pending trial
criminal
of
case,
courtroom,
defendant,
According to
the trial court
from conference
erred in accepting
attorneys,
his
between court and
presence
during argu
waiver of
law,
at the
ment
penalty phasе,
question
ALR 2d
not
requiring
(1962,
2001);
him to personally
Supp.1991,
presence again
waive his
State v. Middle
ton,
on the
day.
second
998 S.W.2d
524-26
Defendant asserts
1999),
denied,
1167, 120
similar error in his
cert.
counsel’s waiver of his
U.S.
S.Ct.
(2000).
presence at
Because these claims are preserved, not B.
defendant must demonstrate plain error: that “substantial grounds” exist for believ- Defendant contends that ing injustice” “manifest occurred. trial court permitted impeach should have Zindel, penalty-phase ment of Deputy witness Saltkill, jail Robert Saltkill. employee at time, testified that defendant attacked oath, Under defendant waived his him walking after into an off-limits area. right to present be “voluntarily and know According to proof, defendant’s offer of ingly.” He now contends his re absence Saltkill was fired drugs because were poorly flected on him during parked jail. found in his car while at the phase. This Court will not second-guess The court correctly refused this offer of defendant, but reviews whether his because, proof generally, one im voluntary decision was knowing. De arrest, peach a witness evidence of an fendant himself admits it was. investigation, charge or criminal that has As for defendant’s absence the not resulted in a conviction. State v. day penalty phase, second purpose Wolfe, his 258. Defendant of ful absence presumption creates the of a fered no evidence of a conviction. *12 impeachment by ban on tions to I know of general any
The be read. don’t prior, point. other to read at this unconvicted misconduct has three instructions 1) 2) interest, exceptions: specific pos a No, Attorney]: jury the [Defense reads testify to the favorably sible motivation for They other instructions. don’t stop 8) State, testimony given expec or with an aggravators. the leniency. of Id. now al tation Defendant suggest they I didn’t [Prosecutor]: leges that his would inquiry show Saltkill’s did. State, testify favorably for motive to the (The to proceedings open returned curry employer. order to favor his court.) preserved appeal. not ground This was for (Mo. Nettles, 10 S.W.3d may proceed. You [The Court]: Rather, by App.1999). proof, the offer of argue prоsecutor did not The to im generally the unconvicted act was jurors impose required the were to the peach credibility. Saltkill’s Because did consider penalty, mitigat death or not to any exceptions, not of the fall within three context, prosecutor ing factors. refused judge properly the offer of an finding aggravating commented that proof. to imposing circumstance was a threshold argues Finally, defendant penalty. Shafer, the death See State explaining why left position Saltkill his (Mo. banc), cert. de jail, jurors may speculate he left due to nied, U.S. S.Ct. fear, injuries or inflicted. (1998). L.Ed.2d 340 preserved ground ap- This is also not peal, plain and does not constitute error. court has broad The trial discre Rule 80.20. controlling closing argument, tion in and of rulings are reversed for abuse dis
C. cretion the defendant. State v. prejudicing Ferguson, at 498. The court 1. discretion, further, and acted within its asserts that the prosecutor Defendant Following pros there is no prejudice. statutory aggravators during misstated the statement, attorney ecutor’s defendant’s closing argument. penalty-phase necessary to step outlined each recom if you’re firmly And con- [Prosecutor]: death, jury mend role explaining vinced that the State of has Missouri mitigating circum aggravating and proven aggravators beyond you these stances. request- doubt then we a reasonable are you your are entitled to ing and return penalty of death. defendant, Honor, prosecutor attorney]: According Your I’m
[Defense of mind” “depravity object. There’s mischaracterized going to other instruc- jury to encouraging the find aggravator by read tions that are to be before sen- it based on racial hate crime: I think imposed. tence is that’s mislead- ing. things you [Prosecutor]: One
must
that this death
outra-
find is
vile, horrible and
geously
wantonly
and
be more outra-
your
I don’t
inhuman. What could
understand
[The Court]:
vile, horrible
geously
wantonly
are
comment that
there
other instruc-
being
inhuman than
killed
of bility
probation, parole,
because
or releasе ex-
your race—
cept by
governor,”
act of the
“shall consider all evidence which it finds
attorney]: Objection.
[Defense
in aggravation mitigation
pun-
to be
you’re
[Prosecutor]:—because
black?
565.032.1(2) (emphasis
ishment.” Section
[Court]:
will understand that it
*13
added.) Moreover,
juror
“each
con-
shall
guided by
must be
the evidence and
any
sider
evidence which he
con-
[or she]
disregard any argument outside of the
aggravating
siders to be
or mitigating.”
may
evidence. You
proceed.
added.)
(emphasis
Id.
The penalty-phase
you,
[Prosecutor]: Thank
Your Honor.
evidence of racial motivation factually sup-
attorney]:
Honor,
[Defense
Your
if I
ported the prosecutor’s argument.
could
objection,
farther that
it’s a mis-
aggravator
statement of the
and a mis-
3.
statement of the law. That is not the
Defendant next alleges that
the
aggravator.
1)
prosecutor:
implied personal knowledge
jury should,
course,
[Court]: The
re-
2)
and,
improperly vouched that death was
fer to
objection
the instructions. Thе
the proper sentence. This occurred dur
will be overruled.
ing penalty-phase argument, when the
The State concedes that
the
commented,
prosecutor
“I realize
mag
the
depravity-of-mind aggravator
improp
was
nitude of the
you
decision that
have to
erly submitted.
Because
one valid
make,
I
because
had to
make
first.”
statutory aggravator is needed to consider
imposition of the
penalty,
death
a defective
may
Prosecutors
not assert per
aggravator
additional
usually affords no
issue,
knowledge
sonal
facts
which
basis for relief.
Shafer,
969 essentially
testimony.
is unsworn
Buck
739;
565.082.1(1).
S.W.2d at
section
State,
(Mo.
395,
v.
lew
38 S.W.3d
400
banc
2001). Here,
prosecutor
the
not imply
did
prose
believes that the
Defendant
special knowledge, but made a rhetorical
argument
cutor’s
jury’s
critical
the
argument based on the evidence. See id.
punishment.
decision on
penalty
This Court has found that a prosecutor’s
phase,
jury
has a choice between two
easy
comment—“it’s not an
dеcision” to
sentences: death and
imprisonment.
life
penalty,
ask for the death
we make
“[b]ut
Shurn,
(Mo.
State
447,
v.
866 463
it in this
imply
prosecu
case”—did not
1993).
banc
Errors during the penalty
personal
tor
knowledge
had
outside the
phase can prejudice the
by
defendant
Mease,
98,
evidence.
v.
State
preempting
choosing
1992),
denied,
109
cert.
508 U.S.
Thus,
“life” alternative.
Id.
this Court
918,
113 S.Ct.
30.20. submitting in separately trial court erred prior his convictions for felonious assault D. robbery, jury could and armed because the Defendant that the depravity- contends they believe different occurred on two aggravator supported by of-mind is not argument preserved dates. This not was evidence, and unconstitutionally vague. for merits. appeal, and also fails on the Asserting that death not the victim’s was The court the defen properly trial listed murder,” “exceptional an defendant claims separately. dant’s State v. convictions acted, mind, not depravity he of but with Harris, at 870 S.W.2d 812. in the passion rather heat of when the “sexually victim accosted” defendant’s live- IV. Further, girlfriend. ag-
in he claims the gravator vague meaning- is so as to be a alleges Defendant that his death less catchall. disproportionate. sec sentence is Under 1) 565.035, tion this Court determines: The concedes that insuf State im of was whether the sentence death supported statutory ficient this evidence prej posed passion, under the influence of not, however, re aggravator. This does 2) udice, factor; any arbitrary other or quire jury reversal the sentence. The of statutory supports whether the evidence found had prior defendant serious assaul- any and other aggravating circumstance cir aggravating tive convictions—another 3) found; whether the sen circumstances statutory aggravating cumstance. One dispropor tence death is excessive or of may support circumstance sentence of cases, penalty tionate in to the similar 739; Shafer, death. State v. 969 S.W.2d at crime, strength of the considering the 565.032.1(1). Moreover, section as dis evidence, and the defendant. cussed, shall consider “all evi “any and which it finds passion, prejudice, dence” evidence” As or other arbi- for factors, aggravation mitigation. trary Section the defendant re-asserts 565.032.1(2). points argued appeal. As discussed above, points pas- not show defendant’s do objects next Defendant sion, arbitrary other factors. prejudice or judge, jury, rather than deter met The found the defendant prior mined that defendant’s convictions of serious statutory aggravating As matter factor were serious and assaultive. robbery and law, determine whether assaultive convictions—armed judge of affirmed as- felonious assault. This Court has prior convictions are serious and of death where the defendant Taylor, State 18 S.W.3d sentеnces saultive. v.
793 history prisoner. had a convictions similar to another Defendant was prior saulting Amrine, stabbing State v. 741 for an inmate in investigated the defendant: (defen- 1987) placed was S.W.2d 1993. In defendant had serious felo- prior segregation fighting dant two assaultive disciplinary nies, robberies); degree prisoner. awaiting first State another While trial for Reuscher, murder, jailer attacked 1992) (defendant prior had four serious Saltkill, eye impairing injuring his left felonies, including second-de- assaultive background does his vision. Defendant’s Nave, sodomy); gree assault and distinguish involving him from cases 1985)(defen- crimes which death similar aggravator prior dant’s was his serious Amrine, 741 imposed. See S.W.2d at felonies, including rob- assaultive armed Reuscher, Nave, 672; 715; at S.W.2d bery rape). and forcible 738; generally Chaney, at see S.W.2d
The nature
the crime
Defen
is clear.
senselessly
dant followed and then
killed a
purpose
proportionality
re
28-year
complete stranger—
old victim—a
prevent
view is
freakish
wanton
thought
pass
because he
the viсtim
amade
*15
applications
penalty.
of the death
State v.
his girlfriend.
stabbing,
Before the
de
(Mo.
505,
5
Winfield,
S.W.3d
517
banc
“going
fendant said that he was
to hurt
1999).
penalty
The death
is not freakish
nigger.”
in
stabbing
After
the victim
or wanton on the facts of this case.
neck,
remarked,
the
nig
“One
ger down.” Defendant has never demon
V.
any
strated
remorse for a racist murder.
judgment
The
is affirmed.
O’Neal,
498,
State v.
See
S.W.2d
denied,
1986),
cert.
480 U.S.
WHITE,
LIMBAUGH, C.J.,
(1987).
107 S.Ct.
the defendant stabbed the victim after tail- ing pre- him for blocks. The defendant I cannot evidence of Because find delib- sented no credible evidence of self-defense. period eration —a of cool reflection howev- The compelling evidence is defen- the affirming er brief —I dissent the dant murdеred the victim with delibera- first-degree murder conviction and death tion. Moreover, sentence. the United States review, decision,
Finally, in proportionality
Supreme
Cooper
this
Court’s recent
Court considers the defendant.
Inc. v. Leatherman
Tool
Section Industries
—
565.035.3(3).
Inc.,
U.S.-,
The evidence
defen-
Group,
includes
S.Ct.
(2001),
during periods
requires
dant’s conduct
of incarcera-
whether particular can be ed. The first are the easier cases—where *17 said to certainty a moral to have commit- question there serious is whether the de- ted a justifies crime that what should be a fendant was involved in the crime. In rare use of the penalty. death Chaney, S.W.2d
Anyone 1998), familiar with the of judges frailties three of this Court institutions, human including legal unpersuaded and were the state that had governmental systems, should sur- enough not be even to the case to evidence submit Court, Regarding 2. sentencing guidelines, preme the federal there inmates were 856 with generally sentences, see 3,711 & Jose A. death which has increased to Cabranes, Stith Kate Judging: Sentencing executed; person Fear of year. in the last In 1982 one was Guidelines (Univ. Chicago of Press Federal Courts year last there were 85 executions. Also last O’Connor, year, according to Justiсe six in- reported Justice O’Connor's remarks were mates death were exonerated with sentences Minneapolis July in The Star Tribune on review, bringing after and released the total Baca, 2001. Maria Day Elena Sandra O’Con of such exonerations to 90 since 1973. There speaks Minneapolis, nor in On Star Tribune may not be reliable data on the number of 3, 2001, July http://web- available at line, persons executed have been would exon- who serv6.startribune.com. The statistics which to erated. Justice O’Connor referred are as In follows: joined when she the United Su- States in presented the trial court’s jury. Chaney majority, The acknowl- were a evidence, af- edging of instructions. the weakness the the sentence. firmed conviction a life nothing is recorded to the There as at 60. of such review has been Id. The use request reasons for the defense failure to Wolfe, v. quite limited. See State on lesser-included offense. instruction a 2000) (Wolff, 248, 276-78 S.W.3d cor- principal opinion The state and the difficult, J., other, dissenting). The more fallacy of rectly point plain-error out the category of cases involve death sentences matters at review such instruction extraordinarily weak where evidence is stage the failure is deliberate this —often or as to an element of the crime essential strategy hope with the employed trial justi- to that aggravating as circumstances will first-degree that the case for murder may fy penalty. the death The weakness so that will seem insubstantial be, here, of as that the essential element only that is its alternative. acquit because are cases lacking. deliberation Those a lesser- requested, If the instruction of emotions, as involving heated such often in a usually warranted included offense is fights, case. fights street saloon this —and Santillan, murder case. State De Novo in this Review Case 1997) case, apply we In this whether or not request. of But there is no record such a Cooper de rationale of novo review jury in defense in this case told the The Industries, are: troubling aspeсts the two . phase in there penalty that argument deliberation, 1. There is no evidence of murder, that this are lesser forms of fact, is, that reflection.” In “cool mur- really might only second-degree be in the testimony girlfriend of Black’s impres- bolsters the argument der. notion penalty phase undercuts-the “all nothing” an sion there was premeditated mur- this was and, phase failing strategy guilt in the all-or-nothing der. In its instruc- that, in jury would perhaps the realize tions, give the the trial court did not phase this was a second- penalty convicting Black option of is, That in usual murder case. degree murder. anything first-degree but course, explored a matter be well It post-conviction proceeding. 2. The was the state girlfriend used be, experience with the light of Black’s phase show racial penalty strategy the failed legal system, that its part support hatred on Black’s informed by fully client. directed “depravity ill-founded submission circum- aggravating an mind” as cases, strategy In death so, lan- doing racist stance. *18 your “you a version of bet becomes twisted de- guage the absence of obscures ought granted not The defense to be life.” ought to that this liberation Court trial, of appeal, on as a result a new direct through de review. correct novo Instead, entirely it strategy. seems such this re to determine whether appropriate of lesser-included offenses Omission first- that ally supports is a set of facts And, not, if has sup- murder. the Court amply degree in case The facts this would sentencing on option remanding of for second-degree murder the port a conviction of sup second-degree murder first- the offense of voluntary manslaughter, but not or O’Brien, options second- the evidence. degree ported The of murder. manslaughter degree voluntary murder or case,
The
response
facts in this
to their
stripped
judge’s
to the note. The
favorably
note,
view,
essentials and stated
the state
my
precisely
to
in
zeroed in on
the
girlfriend
are simple:
complained
Black’s
presented
issue
these facts —whether
that,
tо Black
she
in
conve-
while
was
a
evidence of
reflection.”
there
“cool
was
store,
pass
nience
Jason Johnson made
At
the evidence
that
most
showed
Black
Black,
car,
at her.
in his
chased
the
down
injured
purposely
Jason Johnson. When a
truck in
riding.
which
was
Dur-
Johnson
causing
“with the
of
purpose
chase,
ing
according
the
girlfriend’s
to the
physical injury”
serious
causes
victim’s
testimony
penalty phase,
in the
Black said
death,
second-degree
is
murder.4
that
(Em-
he
going
was
to “hurt that nigger.”
degree
“Both second
murder and first de-
added.)
phasis
caught up
When Black
gree
act
require
murder
that the
be inten-
truck,
with the
he and
exchanged
Johnson
degree
done.
tionally
Only first
murder
got
words. Black
out of his car and
blood,
requires the cold
the unimpas-
neck,
stabbed Johnson in the
and Johnson
premeditation
sioned
the law
calls
threw a beer bottle at Black.
Johnson
O’Brien,
deliberation.”
There was time this case for delibera- stated intent “hurt” Jason tion reflеction;” but no indication of “cool The does not Johnson. statement show however, time these can- circumstances kill intent him. testimony Had such not alone suffice to supply evidence guilt phase been in the presented “cool The reflection.” evidence showed already trial it would have an weakened rage, not cool reflection. virtually first-degree nonexistent case The record reflects that sent murder. the verdict-directing instruction back judge the trial with a circle around the all-or-nothing of the Because submission phrase first-degree instructions, “cool reflection” and note: of murder “Judge, please phrase.” define this jury was confronted with bad choices: two course, phrase, of of an acquittal ignoring defined awful crime *19 565.021, murder, (1) 4. degree Section Knowingly “Second causes the death of another or, penalty,” part, person purpose causing pertinent the in is as follows: serious of injury physical person, to another causes the person 1. A commits the murder crime of person; another death of degree in the second if he: added). (Emphasis 798 (Mo. Smith, 493, convicting 501 language and 756 S.W.2d
“cool reflection” 1988).5 cases, our cited in the first-degree Black of murder. banc Under opinion, proof statutory of one principal appeal, this this has a choice On Court aggravating circumstance is the threshold the This can jury. not available to Court for to requirement jury the consider affirm a conviction for a lesser-included justified. is penalty whether the death by supported offense that is the evidence 719, (Mo. Shafer, 739 v. State O'Brien, sentencing. and remand 857 1998). Black’s two 1976 convictions banc S.W.2d 220. suffice to meet this threshold. penalty phase The submission However, jury the heard the evidence of by The evidence adduced the state motive, racist the trial court’s instruction Gary Black was afflicted with show mind,” prosecu- of the poi- “depravity depravity particularly of mind was mo- testimony arguments If tion’s that tied the racist girlfriend’s the sonous. This believed, “depravity rаcial tive to of mind.” is not possessed by Black was epithets simply gov- The at- of to be question hatred. racial that she evidence by 565.032.1(2), used the state as the by princi- tributed Black were erned section “depravity opinion of mind.” contends. Here the evidence pal show of mind” augmented by “depravity was the aggrava- the mind” “depravity As to of submission, jury’s and the verdict tainted tor, in jury, trial court instructed the proof by of the evidence as of submission pertinent part, as follows: of depravity mind. to be determining punishment against assessed the defendant for phase “can preju Errors Johnson, must you of 0. murder Jason by preempting dice the defendant unanimously determine whether first alternative,” choosing the ‘life’ as following statutory one or more of Shurn, out in State v. 866 pointed Court circumstances exists: aggravating 1993) (citing 463 S.W.2d Florida,
Espinosa v. U.S. of the murder 0. 2. Whether Jason (1992)). Er S.Ct. L.Ed.2d 854 of mind and depravity Johnson involved penalty phase of in the can rors evidence whether, thereof, murder as a result trial disregarded be sometimes bеcause vile, wantonly hor- outrageously and was judges presumed be not to consider can inhuman. You can make rible and sentencing improper evidence when defen of depravity of mind determination dants. you if find: The that the trial court did presumption killed 0. That the defendant Jason an submission improper not consider causing for the of purpose Johnson apply here because sentencing does not there- suffering person to another concluded, incorrectly, that the trial court disregard exhibited callous aggravator war- depravity of mind all human life. sanctity ranted. ap correctly concedes in this The state prejudicial possible preemption “depravity aggrava of mind” peal this, alternative from the See the life-sentence justified tor was case. Preston, types to what Court numerous factors as v. lists See also State 1984), Griffin, "depravity and State constitute mind.” of murders 1988), where *20 appeal. opin- echoes in this The But a death sentence is the princiрal defense. when racially evidence, ion relies on evidence of Black’s strategy, result of trial not cor- speech hateful be- his other assaultive constitutionally on is re- appeal rection apparently also to introduced Gary guilty is a serious quired. Black of havior— “depravity justify show of af- mind”—to murder, crime, which he second-degree for In firming the sentence. the circum- a he should could serve life sentence. But is, improper of an stances submission this strategy. a not be executed for failed trial put mildly, degree to unusually high it an reversed, Black’s conviction should be That, of deference to a tainted it verdict. and the case trial court remanded the me, seems to is not even close to the de entry of judgment for and sentence for novo review this Court would and should second-degree murder. grant in punitive damages case. A of function de novo review is to evalu-
ate the supporting pen- evidence death
alty dispassionately. As Supreme punitive damages
Court said of in the Coo-
per case, punishment Industries is not by jury, fact found but is a condem- subjected
nation to be de appellate novo
review.
In this death penalty jury’s is finding determination not a of fact—it a recommendation to trial judge. court the jury’s this case recommendation Missouri, Respondent. STATE of
was tainted the evidence of racial ha- No. ED 78162. tred that was linked to the unsupported notion “depravity of of mind.” get To Appeals, Missouri of Court death penalty, may necessary have been District, Eastern for the state to show that Black is a racist Four. Division bully. certainly It helped state sustaining appeal on to this 9,May 2001. Court. Rehearing Motion for Transfer to and/or The girlfriend, any- who erstwhile for all Supreme Court Denied June 2001. one was in legal jeopardy knows some of her own of participation because her Application for Transfer Denied flight, supplied Black’s what the state Aug. context, in proper
needed. But on de novo
review, testimony her exposes the nonexis- deliberation,
tence of state’s case as
supplying an kill evidence intent to but to hurt. Wafer, Deborah B. Asst. Defend- Public Conclusion er, Louis, MO, appellant. St. apparent defense’s trial strategy Nixon, Atty. Gen., all-or-nothing first-degree (Jay) murder Jeremiah W. Lemke, clearly Gen., And prosecution’s Atty. failed. trial Linda Asst. Jefferson MO, strategy was more than that the City, respondent. clever