*1 Missouri, Respondent, STATE DAVIS,
Ralph Appellant. E.
No. 71694. Missouri,
Supreme Court of
En Banc.
July 1991.
Rehearing Sept. Denied *2 ap- Schlesinger, Clayton,
Thomas R. pellant. Webster, Gen., M. Atty. L. John
William Morris, Atty. Gen., City, Asst. Jefferson respondent. RENDLEN, Judge. de- guilty of in the first
Found murder slaying his gree and sentenced death for wife, appeal defendant’s falls within appellate of the Court’s exclusive ambit Const, V, 3, as well jurisdiction, Mo. art. Rule appeal from denial of his as the seeking postconviction relief. 29.15 motion proceeding judg- In this consolidated both affirmed. ments are DIRECT APPEAL I. challenges the Defendant first sufficiency support evidence degree murder first conviction issue, and, examining consid we when reason and all inferences er the evidence light most favor ably drawn therefrom a verdict, all jury’s disregarding able to the contrary inferences. State McDonald, 1009,105 1983), S.Ct. cert. denied. U.S. (1985). unique L.Ed.2d 168 detailed of the case call for a circumstances facts. recital of the (Susan) met Davis Susan during and were August, in Columbia October, Prior to their married gave parties’ marriage, to the birth Robbie, August 3, some son, on home on they moved to a new time later Road, of Co- immediately north Obermiller child, March, 1982, their second lumbia. Angela, was born.
Many violating the court’s order but asked witnesses testified that their rela- was neighbor police. tionship par- not to call the He also was one of affection and as children; neighbor that he they “worshipped” told the believed Susan ents their fur- ther, having an affair and was though previous was involved Defendant’s two drugs. Venting anger, defendant burst failed, marriages had he testified that his that, stop only way forth the threat “The “being in time with Susan was like heav- her.” whoring bitch like that to shoot marriage, During en.” the course of their *3 defendant, in At that time contrast to his couple financial received substantial unkempt appearance, usual neat was and support including gifts approxi- loans and friend noted and another who disheveled $100,000, mating parents. from Susan’s appeared drinking that defendant to be signs ap- In late 1985 of marital discord heavily, if was told defendant that Su- peared employed through when Susan quit “messing san did not him” he with temporary company a services as a secre- away.” her would “blow tary Westinghouse Corporation to at the 2, On June Susan drove a rental car from City Columbia Power Plant. Defendant be- Rapids Cedar for the criminal and the adult gan suspect she was involved in an af- hearings. Though abuse the criminal mat- fair with a coworker and as their relation- continued, pro- ter was in the adult abuse ship deteriorated Susan filed an action for ceeding restraining an order issued defen- 14, marriage dissolution of on November days molesting dant for 180 from Susan 1985, later; which she dismissed two weeks entering dwelling and from on Obermil- if it not clear defendant of this knew Rapids ler Road. Susan returned to Cedar filing. failing marriage Paced with the but night. family concerned for the welfare Susan 5, pastor On June defendant contacted the cou- early May, contacted their ple’s pastor requested the return of his asking him to come to their home to talk hunting ap- firearms as the season was with defendant specifically to collect proaching. day, Also that Susan drove to defendant’s firearms. in the red Ford return Columbia Escort to May spouses engaged On in a though to work and she left the children in argument violent from which Susan suf- brought newly Iowa she with her a ac- fered bruises to her arms and face. Fol- quired Shepherd dog. Visiting German her lowing this incident she contacted law local neighbor next door she learned that defen- May enforcement officials and on 21 filed continuously dant had violated the court’s charges against formal the defendant for home, by entering they order and as degree arrested, third assault. When de- talking, appeared. were defendant Susan $1,000bond, posted fendant a was released attempted grabbed to leave but defendant hearing the matter set for June 2. On forcibly her the wrist and took her car day, Susan filed a civil adult abuse keys her and told he wanted to talk. The action, 455, RSMo, pursuant Chapter an neighbor going informed defendant he was parte ex protection order of issued re- police to call the into his home to went straining entering defendant do so. As he dialed the defendant home on Road Obermiller and Susan was grabbed phone entered the home and temporary custody awarded of the children. and slammed it down but then left hearing That cause was also set for June 2. house. contacted the local en- Susan law May On Susan left home with the forcement officials who searched her home (a family children in the automobile red surrounding finding keys area Escort) parent’s Ford and drove to her neighbor’s garage the Escort on the floor. Meanwhile, Rapids, home in Cedar Iowa. evening gone, Later that after Susan had day protective from the order issued couple’s pastor defendant and the returned until June defendant violated the order neighbor’s to the home. Defendant stated by repeatedly returning money place to the home on he had no and no to live and it there, Road. Obermiller While defendant turn was decided defendant would acknowledged neighbor to a day. he knew he himself in to the authorities the next land, time he
At that borrowed from the a town 15 $100 miles south of Columbia. apparently drive, neighbor, During immediate ex- appeared quite penses. agitated telling the driver a similar story, he stated had stored the Escort to day, The next criminal Susan filed new losing avoid it the divorce. charges against the defendant for third degree pro- and for assault violation of the responding On June to calls that Su- again missing, tective order. Defendant arrest- san was local law enforcement released on ed and bond and was further searched officials the home on Obermiller any Gaining ordered not to have entry, dog contact with Road. they found day, capias The same garage dog wife. warrant was closed in the with food and for defendant’s issued violation of the con- feces scattered on the floor and the house prior bond, as if appeared just stepped dition but this warrant someone had out, copy executed living was not until June TV Guide turned to police room June 8. The also the weekend of On June 7 and *4 recently prescription found several filled changed a friend the locks on the doors bottles, prescription drug one a for the of the house on Obermiller Road and in- Tetracycline. a series of anti-burglary stalled devices. day, Also on that defendant filed for Missouri, she returned to had When Susan marriage dissolution of and on June spent night her first at a women’s shelter help to Rapids drove Cedar where with hotel; however, the next at a local on law he se- from local enforcement officials living the 8th she resumed in the Obermil- custody of cured the the two children from residence, ler to Road and on June 9 went Columbia, parents. Returning to Susan’s power plant. During peri- at the work this defendant moved back into the home on od, purchased 12-gauge defendant a again Road Obermiller violation shotgun and from a local ammunition order, protective but as a result of Susan’s goods evening sporting store. On the pending disappearance, charges the three p.m. at about 6:15 left the June Susan against eventually defendant dis- were plant remarking in her Escort to a cowork- by publica- missed. Further after service straight er that she intended to home. drive tion, granted a default divorce was award- That the last Davis was time Susan custody defendant of the children and A friend ever seen. called Susan’s who ordering pay support. to child Susan hours home a few later received no answer. ap- July, In mid-June late defendant 10th, noon on About June defendant forged parently three checks on Susan’s the Escort from to Jeffer- drove Columbia dol- personal totaling account nine hundred using the to City son back roads avoid re- lars. Two were honored the bank being seen. He a rental drove the car to ducing the balance of account to Susan’s storage facility Apache called U-Store-It time, dollars, during this less than two City west of Jefferson and told the attend- forged change her signature defendant to a enough space large he needed a rental ant beneficiary policy form on defendant’s Defendant, an sweat- to store automobile. of life insurance. sick, ing profusely and complaining he was storing twenty following, defen- the attendant that he was In the months told might spun he feared lose it in a a web of cover the where- car because he dant lies to securing proceeding. After of the Escort and his wife. When divorce abouts relatives, unit, police, a local or rental the defendant went to asked friends routinely know purchased he a lock for the defendant stated he did not store where placed he be- unit and two air fresheners which he the Escort was and asserted where phone He his wife had to Texas in in the Escort. also used lieved “run off” Westinghouse facility get job local cab rental contact a the Escort at the headquarters he in- her company Corporation’s and when the arrived to be with cab during period Not alleged the driver him to Columbia lover. once structed take enough relatives only money police to reach Ash- did defendant inform the but had questioned concerning disap- the true whereabouts of the car. To lend him his wife’s deception pearance. During credence to this he directed an this interview defendant employee following of his insurance office to search related the version of for the Escort in the area. Columbia He he had not seen “facts”. claimed Susan 5, 1986, or the car since June when he had January, defendant received no- neighbor’s encountered her at the house. on delinquent tice he was several months they police then informed defendant payments storage rental for the unit at had found the vehicle where he had stored U-Store-It, Apache incredibly ignored but it, changed story whereupon defendant his 7, 1988, employees the notice. On March relating quite a different version of the representatives of U-Store-It with from facts, asserting day dis- on the opened storage the sheriff’s office unit stopped by place appeared, she of busi- to confiscate its contents. The officers dis- getting him ness and told she “was out”. covered the Escort had last that Susan grabbed keys Defendant car Su- driving city power plant been seen from the san, pulled gun got she on him he on June away. into the car to drive asked When vehicle, as immediate observation car, the blood in the about confirmed, laboratory and latter tests began claimed that Susan to beat on the grisly scene of a crime. The driver’s gun window with the as defendant drove side window had been broken out and the away process smashed the win- appeared windshield cracked where it running through dow her hand it and cut- mirror rearview had struck it. The floor- ting severely, her arm and defendant drove back, seats, boards both front and *5 away again. never to see Susan Under- dashboard, ceiling interior doors and were standably, police placed un- defendant coated dried blood and material later der arrest. identified as human tissue. Also on the glass floorboards were broken and human Searches of defendant’s business and the fragments bone having identified at trial as house on Obermiller Road revealed more person incriminating come from the skull of In his desk offi- a who had evidence. recently drug Tetracycline. ring used the cers discovered Susan’s diamond At trial, expert testimony previous marriage, established that var- a which witnesses testi- smudges wore, fragments always envelope. ious found on fied Susan in an the bone composed couple’s were of At home antimony, lead and a officers discovered composition commonly shotgun 12-gauge shotgun which defendant had found pellets. 9, 1986, Among purchased day on June the last debris on the floor and seats shotgun pellets were a number of of Susan was seen alive and later tests re- composition shotgun the same as that found in the vealed the had been fired. smudge fragments. on the skull bone hand, With this evidence at defendant detailed examination of the car revealed charged by January was information on various swirls the dried blood and human degree with first murder and armed indicating attempt- tissue that someone had Though criminal action1. the trial tran- wipe up liquids ed to the human when script contains five volumes and more than Though those substances fresh. were Su- offered, probably 150 exhibits were body discovered, san’s has never been an damning most evidence came from defen- expert opined at trial that the interior of testimony during dant’s direct and cross- the Escort was the scene of her death. having examinations. He admitted lied to friends, Learning storage neighbors, police to whom the unit was relatives and the rented, police concerning disappearance contacted defendant on but as- Susan’s revealing they March 10 and without that serted on the stand that for the first time possession, during three-year period, had the Ford Escort in their he would murder, Upon degree conviction of first action. charge State dismissed the of armed criminal hap- really arrange pairs. “come clean” and tell that what somes themselves into insisting his of pened, Tightly packaged that current version coiled these within finally consisting events A recital was truth. chromosomes are DNA strands running of final version defendant’s was best of two strands of nucleotides suspect and effect of direct and opposite both directions. double helix destroy any was to re- by hydrogen cross-examination strands DNA are connected maining vestige credibility. only Deliberat- There four bonds between bases. are hours, only (Adenine, jury found Thymine, two varieties bases Gua- guilty degree Cytosine, of first murder nine and which more com- are A, T, G, penalty phase punish- C) and in the assessed monly referred to as and these (A T, only pairs ment at death. form varieties C). G and hold was sufficient evi- We there the cause to the dence have submitted geneA is a segment of DNA that deter- finding beyond jury support and to physical mines hair characteristic such as reasonable defendant killed Susan a doubt eye genetic color as well as defects charged. Davis the manner Huntington’s such as There is disease. quantity ap- also a certain of DNA which August 81, 1989, defendant filed On provides parently no code characteris- pro seeking postcon- se Rule motion 29.15 “space” tics and this is referred to as relief on October an amend- viction DNA. “junk” A DNA molecule contains by the ed motion filed. It was noted although more than 3 units billion this motion was not verified composi- human of his receives half DNA the defendant and additional time was from his from his tion mother half granted defendant for submission of father, unique DNA the final links of are proper amended motion but no amendment each individual.3 11,1990, evidentiary May filed. On an hearing was the Honora- conducted before Conley, entering Frank who his find- ble “Fingerprinting” B. The DNA ings July fact and conclusions of law on fingerprinting process The DNA em- This consol- denied defendant’s motion. steps: ployed Cellmark involves six appeal idated followed. *6 1) chemically DNA The is Extraction. question next Defendant raises a puri- sample extracted from the blood and in impression is a of first
which matter high DNA. fied to obtain a molecular garnered much at though Missouri it has molecule, 2) The DNA Fragmentation. in jurisdictions. Defendant tention other unit, large single as a is too deal with of evi objects the State’s introduction by restricting fragments cut into a then as regarding fingerprinting”2 “DNA dence which, upon enzyme enzyme depending the in the Ford proof the blood found selected, fragment precisely cuts DNA the Escort was of Susan Davis. designated point. aat A. General Information 3) frag- Electrophoresis. The DNA Concerning DNA agarose gel in an placed are ments then poles electrically charged de- DNA is the common abbreviation between structure, fragments separating the assist in the oxyribonucleic acid whose which size, fragments moving helix”, in the by smaller famous “double discovered through gel than the readily and more the early 1950’s James Watson the pattern large. orderly a is an Most human cells contain end result Francis Crick. fragments parallel in lines. 46 chromo- of the nucleus which in turn contains opin- principles throughout fingerprinting" and this term is one em- are so used 2. The “DNA Diagnotstics Company to ployed ion. Cellmark process. typing”, “DNA its "DNA describe own Exceptions appear twins profiling” in cases of identical "DNA are inter- identification” possess genes. changeable describing scientific who identical terms the same testimony of Dr. the Garner. Dr. results and 4) Named for Blotting. Southern hearing, in testified to the pioneered process the Dr. Garner who At the Ed Southern mid-1970’s, pattern fingerprinting” by the DNA band the acceptance of “DNA the to a agarose gel is then transferred pro- community and described the scientific a sheet resembles nylon membrane which by Cellmark its labora- employed cesses During pro- blotting paper. heavy process described mirror the tories which “unzipped” cess, are DNA strands per- did not Although Dr. Garner above. pairings. at their base from one another testing he reviewed sonally oversee the interpretation final tagged and made the 5) Radioactive data Hybridization. fragments small DNA probes, which are results. then intro-
developed
laboratory,
are
testified to the follow-
Dr. Garner
sum
nylon
membrane.
duced onto
sepa-
ing:
laboratory had received two
His
to rec-
themselves
probes locate
attach
taken
samples of dried blood
rate unknown
sequences,
ognized complementary base
Escort,
sample of
a
from the interior of
parts of the DNA
“zipping”
essence
back
defendant,
separate sam-
blood
fragments.
Davis,
Angela
ples
from Robbie
6)
probes
Autoradiograph.
The excess
Extracting DNA
parties’ natural children.
away
nylon
membrane
are washed
sample and
fragments from each
molecule
x-ray film
sheet of
placed
is then
next to a
proce-
performing
previously
described
days. The end
exposed for several
dures,
obtained
lab technicians Cellmark
parallel bands
product is a series of dark
samples.
autoradiographs
the five
resembling
Bar
on la-
the Universal
Codes
the two
upon comparisons between
Based
commonly found in retail stores to
bels
samples and defendant’s to the
unknown
result
identify stacks of merchandise. The
a
fingerprints
DNA
it was
two children’s
autoradiograph
as an
or common-
known
previously
certainty that the two
scientific
DNA
ly an autorad. This then is the
fin-
from mother of
samples came
unknown
gerprint.
trial, Dr.
Angela
At
Robbie and
Davis.
con-
certainty
Garner described
Analysis
C.
510 times
in these terms: It was
clusions
body
As the
of Susan Davis has never
samples
likely that
the two blood
more
found,
principal physical
been
Davis and
from the mother of Robbie
came
produced by the
of her death
State was
190,000
likely
more
the blood
times
fragments
smears and bone
dried blood
Angela
samples
from the mother
were
found in the interior of the Ford Escort.
percentages
it was
Expressed
Davis.
trial,
samples of the
Prior to
the State sent
samples came
that the blood
chance
99.99+
(Cell-
Diagnostics
dried blood to Cellmark
and a
from the mother of Robbie
99.9999+
mark),
per-
private corporation
which
samples came from
chance that the blood
*7
routinely
fingerprinting”
“DNA
forms
Angela.
the mother of
testing.4
re-
analysis, for
Armed with the
tests,
arranged
the State
for
sults of those
against
Measuring this information
Gamer,
testimony
director of
of Dr. Daniel
DNA fin-
test,
found that
Frye
the court
Cellmark,
de-
at
who would
laboratories
acceptance
gained general
gerprinting has
testing
interpret the results.
scribe the
deter-
community and
scientific
within the
regard-
mined to allow
State’s
day
morning of the second
On the
by
ing
fingerprinting conducted
the DNA
trial,
hearing
compli-
a
was conducted
trial,
testified
At
Dr. Gamer
Cellmark.
teaching of
v.
Frye
ance with the
United
were
(D.C.Cir.1923),
and the autorads
States,
the same matters
Defendant attacks
trial
finger-
analysis of blood because the tech-
the evidence of DNA
tion
sion to allow
generally accept-
asserting
nique had not then been
printing,
reliability
ed.).
procedures
used
Cellmark were not
justify
sufficiently established to
admis-
determining
specific proce-
whether a
sion.
gained acceptance
dure has
within the sci-
frequently
courts
community,
entific
our
long accepted
standard for ad
guidance in
other
look for
the decisions of
missibility
proce
of results of scientific
jurisdictions,
professional
as
as
litera-
well
States,
Frye
enunciated in
dures
v. United
surveys
history
ture and
of the
requires
may
only if
that such
be admitted
process
Sager, 600
involved. State v.
procedure
“sufficiently
established to
569-572;
Moore, 690
S.W.2d at
State v.
gained general acceptance
par
have
S.W.2d at 457.
belongs.”
field in
it
Id. at
ticular
which
process
fingerprinting”,
Cell-
“DNA
principle
adopted
1014. This
has been
developed by
employs,
Dr. A.J.
mark
variety
regularly applied
a
of Missouri
University in
Jeffreys of Leicester
Great
368,
Stout,
decisions.
v.
478 S.W.2d
State
Comment,
Finger-
in 1985.
DNA
Britain
Price,
(Mo.1972);
731
369
See
v.
State
Impact Upon
Its
printing and
Criminal
287,
(Mo.App.1987);
291
v.
S.W.2d
State
1453,
(1989).
Law, 41 Mercer L.Rev.
1454
453,
Moore,
(Mo.App.1985)
690 S.W.2d
457
Jeffreys
thereafter
staff us-
Soon
testing);
668
(enzyme
Young,
State v.
techniques assisted British
ing these
law
(semen
(Mo.App.1984)
S.W.2d
266
determining
officials in
enforcement
test);
Smith,
analysis
v.
637 S.W.2d
State
murder-rapist.
identity of a
Id.
(neutron
(Mo.App.1982)
activation
synthetic fi
analysis for human hair and
address the
appellate
The first
court to
bers);
Sager,
600 S.W.2d
State
fingerprinting
admissibility of DNA
evi
(Mo.App.1980),cert. denied
U.S.
court in
dence in America was a Florida
(sci
(1981)
101 S.Ct.
601
dealing
mark,
York case
with the
has
held admissible.
v.
Another New
been
State
Pennell,
513,
(Del.Su
Castro, 144 Misc.2d
subject
People
584 A.2d
519
v.
(Cellmark
per.Ct.1989)
performing
956,
(Sup.Ct.1989).
the test
As in
At least two other states
cluded
of test results conducted
evidence
acceptance
proof.
toward
of such
Hinton
Id.,
Cellmark.
This is not to
of Cell-
Probably
has
the harshest criticism
comes
acceptance.
testing procedures
received universal
favorable
mark and its
Among
question
the first to
admissibili-
from Massachusetts in Commonwealth
ty
fingerprinting
Cumin,
of DNA
was New York.
levels no criticism toward
court in Vermont dealt with the issue.
concept
fingerprinting.
of DNA
Jakobetz,
court
United States v.
case,
(D.Vt.1990),
F.Supp.
no
and
held that under a
research has disclosed
Our
test,
DNA
ad-
suggested,
balancing
fingerprinting
none
that rules
DNA
was
has been
se, rather,
per
process was
identification inadmissible
missible because the RFLP
acknowledged
princi-
frequency
they
genotype
have
the basic
as
reliable
was
Further,
accepted in the scientific
ples
generally
espoused by
are
the tester.
numbers
only
reliability
against
of sta-
community,
evaluating
fingerprinting
DNA
tistical means utilized to derive a numerical
the court
Federal Rule
Evidence
questioned.
power
identity
has been
unfairly
not
found that such evidence was
misleading
jury
prejudicial or
as the
mem-
lagged behind the
Federal courts have
compare the
on an auto-
could
bands
bers
in these matters. We have found
states
Id.,
F.Supp.
at 263. See also
rad.
only
have cur-
four federal decisions which
Yee,
134 F.R.D.
United States
issue,
those, the
rently addressed this
1991)
(N.D.Ohio
district court
in which the
appears in
most detailed discussion
United
demon-
government
held the
met its burden
(8th
Bulls,
603 6, to The state on December filed a motion subject persuades on the us from literature fingerprinting is motion for failure to theory of DNA dismiss defendant’s that generally accepted in the scientific com- 29.15 or in the alternative comply not with Rule munity. file have defendant a more definite state- allegations verify ment as to his Defendant however attacks the trial the motion sign such. The court sustained ruling, contending court’s that reliabili- for a more definite statement but withheld testing had not es- ty of Cellmark’s been ruling at that time on the motion to dis- Specifically, points defendant tablished. evidentiary hearing, miss. After the court perform Dr. Garner did not fact that against ruled defendant on the merits and incompetent the tests himself and was thus then held that defendant’s cause should be efficacy testify to the nature and of procedural dismissed on the of de- basis Frye hearing tests. Further at the those comply fault for failure to verifi- sufficiently explain Gamer did not his basis requirement. cation power identity figures. for his Defendant concedes “the scientific repeatedly This Court has held theory underlying typing DNA is not con requirements that the verification of Rule argument and thus his troversial” concern mandatory jurisdictional. 29.15 are ing the manner in which tests were State, 149, (Mo. 798 151 Malone v. S.W.2d goes credibility conducted more to the 1990). 29.15(f) provides banc Rule evidence, weight the witness and the “[a]ny by amended motion shall be verified is in first which instance a discretion movant.” No statement could be clearer. ary ultimately call for the trial court and Though ruling court did not err in Endicott, jury. 732 procedur defendant’s amended motion was 239, (Mo.App.1987); S.W.2d State v. defective, ally jurisdic because court’s Moore, (Mo.App.1985). 690 S.W.2d by original tion was invoked motion we It is within the trial court’s sound discre plain examine for error. Our review is expert’s tion to admit or exclude an testi ordinarily determining limited to whether mony, Taylor, 663 S.W.2d conclusions, findings, and order of the (Mo. 1984), banc and no abuse of discretion erroneous, clearly 29.15(j), court are Rule has been demonstrated. plain and under the error rule whether injustice manifest has occurred. To estab II. MOTION FOR POSTCONVICTION allegation lish an of ineffective assistance RELIEF counsel, defendant must demonstrate point appeal The sole on from denial of only counsel’s conduct not deficient was his Rule 29.15 motion are three instances deficiency preju that this resulted in but demonstrating ineffective assistance of tri- State, dice to movant’s case. Sanders v. allegedly rising requir- al counsel to a level 1987). This ing a new trial. counsel, heavy afford is a burden and trial surrounding post- The facts defendant’s questions ed latitude as to of trial broad August motion conviction are these: On judged strategy, is not to be ineffective pro defendant filed his se Rule 29.15 constitutionally simply in retro because September granted motion and on may spect such a decision seem an error thirty day extension within which to file State, judgment. Morrow v. 30, 1989, motion. an amended On October (Mo.App.1989). defendant’s counsel filed an amended mo- alleges trial referencing alleged Specifically the three deficien- tion obtaining present- ineffective for not cies of trial counsel which we shall counsel was reliability signed expert challenge ly address. This motion was neither witnesses testing procedures. Defendant’s DNA nor verified defendant. Cellmark’s movant claims ineffective assist requested counsel also a second extension When a to locate and thirty days, though permitted not ance of counsel for failure which witnesses, expert he must show granted by present the court. the rules experts phase occasions, that such existed at time of of trial. On a number of trial, they could have been located trial counsel averred that defendant through investigation, killed of passion reasonable and that Susan in an act without *11 testimony of prefacing the these witnesses would his comments not that he was admitting guilt have benefited movant’s defense. of Defen- See the his client. Childress-Bey State, jury dant that this to states allowed the State, (Mo.App.1989); attorney 782 believe that even his own Williams believed (Mo.App.1989). Defendant he was a liar. Trial counsel conceded that suggest expert to name or an fails who the statements were that inadvertent but jury could have testified on his behalf trial he also the realized had defen- found every jurisdic- guilt phase and indeed as dant guilty noted above of this bifur- has DNA fingerprint- only tion which dealt with cated and had trial deliberated for ing accepted has the hours essentially validity of on that issue. Defendant’s credibili- principals ty scientific im- involved. Most been laid his admissions of waste portantly, having police, trial counsel in- defendant’s did lied to the his relatives and arrange separate, independent neighbors concerning deed for his his actions since testing Lifecodes, disappearance collapse with other wife’s and of his nation’s private major during DNA identification alibi in his labo- cross examination which ratory, story any from stripped remaining plausi- and results that test was of (which trial) explained during bility. jury defendant did not offer Trial counsel “the going extremely got consistent those of if I were Cellmark. was to be offended deficiency performance up No counsel’s is to continued maintain [defendant’s] apparent light here. transpired. innocence” in of what had We find no ineffectiveness of trial counsel allegation Defendant’s second of in these nor can it matters be said is ineffectiveness that trial counsel failed prejudice re- sufficient to warrant reversal present expert to locate and an witness sulted from the statements of counsel testify who could to the nature of a “trust” certainly most none of conten- defendant’s explain jury clearly to the that defen approaches plain tions the level error. of gained could not dant have access to Su parent’s point san’s trust. This merit- III. INDEPENDENT REVIEW expert less. Even if an could have been our re- Finally independent we conduct state, presented testimony and so such pursuant view of the death sentence provided have small de would comfort to 565.035.3, RSMo 1986. First we hold § in question fendant’s cause. The trust amply supports aggravat- the two million, corpus of with a had as its $1.1 ing during jury circumstances found beneficiaries, and her brother and in Susan trial, warranting phase of the penalty death, of her the event Susan’s share de aggravat- punishment of death. Those children, Angela. her volved to Robbie ing un- statutorily circumstances allowed argued defendant rea The state could 565.032.2(4) (12), der RSMo sonably believe that as the children’s sole were: surviving parent in some he could manner 1) murdered Davis That defendant Susan proceeds exercise control over the of the of the receiv- purpose defendant paid previ once to his children as trust thing mone- any other of noted, money or killing ously after his wife defen another; tary value Susan Davis a decree of dissolution and dant obtained awarding custody 2) order him the chil an Davis The defendant murdered Susan A trust have done expert pending dren. would she a witness because was dispel testimony. the effect of this of- prosecution little of the for the defendant degree This contention is denied. fense in the third of assault of protection. of an order violation allegation Defendant’s third con first, “slip tongue” days to the before trial counsel’s cerns As murdered, he during closing argument penalty was defendant confided checking forged the checks and the who strapped and borrowed financially was account. living out neighbor. He from his was $100 company insurance office and of the . the two trusts item concerned The third His tax experiencing financial lows. in Iowa. parents by Susan’s established only 1986 reveal an income returns for briefly dis as hereinbefore The trusts imme-
$3,359. question that There is little for the benefit cussed were established death, their during their lives and at diately parents to Susan’s prior to Su paid would be the remainder money. deaths need as her brother beneficiaries. san and disappearance, defendant After Susan’s death, her share the event of Susan’s possession and took actions came into paid chil to Susan’s two proceeds would be items belongings and other obtain Susan’s *12 dren, Angela. At no time Robbie ring from a including her diamond of value paid di proceeds ever be the trust would that marriage. The record shows previous Testimony trial re at rectly to defendant. ring habitually and was wore Susan trusts knew of these vealed that defendant disappear- wearing shortly her it before to the protests and his and their terms had been dis- ance. After the Ford Escort Defendant’s ar not credible. contrary are 1988, the storage unit in covered chil and her gument that because Susan conducted a search of defendant’s police trust, he dren were beneficiaries ring in a small office and discovered the from death derive no benefit Susan’s would De- stapled envelope defendant’s desk. ignores as father of the children. his status ring explanation death, for the conflict- appar fendant’s of it was At the time Susan’s De- sharply marriage ed with the state’s evidence. had failed and Susan ent the custody of the children. ring actually the the intended obtain fendant testified was If somehow removed Susan were ring given had engagement he Susan parent scene, the sole defendant would be just prior disappearance to her Susan degree of exercise a and as such could given ring picked up him he had when property. their his children and control over belongings of his from his home. some 475.025, 1986; Ku RSMo generally See do, apparent- jury, as it was entitled to Inc., Inns, batzky v. Ramada implausible story. ly rejected this jury (Mo.App.1982). From this the 73 personal The next item concerns Susan’s be reasonably infer that defendant could checking Defendant was not a account. financially by dis he benefit lieved would immediately signatory to that account and becoming the sole posing of Susan disappearance, the prior to Susan’s balance Angela. surviving parent of Robbie just in Susan’s account was over $500. permit the There was sufficient evidence disappear- About one week after Susan’s jury of finding by the of and a submission ance, rejected a check for that de $400 the bank circumstance aggravating the first pur sig- for the account because the Davis written on Susan’s fendant murdered Susan things of money or other receiving pose did not match those on nature on the check monetary Thereafter, value. two more file with the bank. on Susan’s account checks were written aggravating cir to the second As were honored
July, both
which
death,
cumstance,
time
Susan’s
at the
reducing
of her account
the balance
bank
facing
charges of third
two
defendant was
Although
later checks
tó
these
bore
$1.82.
charge for violation
and one
degree assault
Davis,
signature of Susan
it
apparent
key
Susan was
order.
protective
of a
they
her,
established at trial
been
was
charge and without
for each
witness
direct
forged. Although there was no
tes-
make a case.
not
able to
be
the state would
demonstrating
disappearance
that defen-
defen
timony at trial
day
of Susan’s
On
checks,
charges
coupled
forged
arraigned
on
dant himself
dant was
trial,
hence.
strong
trial a few weeks
set for
with the other evidence
which were
death,
charges were
all three
be
from which
After Susan’s
inference could
drawn
dismissed.
determine that it was defendant
jury could
Wilkins,
argues
(1990);
it is
Defendant
unreasonable to L.Ed.2d 426
(Mo.
that he
kill
1987),
believe
would
Susan because of S.W.2d 409
sub
banc
affirmed
charges.
three misdemeanor
This conten-
Kentucky,
nom.
U.S.
Stanford
persuasive.
tion is not
Prior to Susan’s
(1989);
109 S.Ct.
view”
in a
she was a witness
Davis because
indulged
practice of
long
too
has
Court
for
pending prosecution of the
reporters
presenting
cases
scanning the
degree
offense of assault
the third
statutory aggra-
one or more of the same
protection.
an order of
and violation of
circumstances,
following
vating
which
considering whether
the evidence
When
string
and a routine
there is a
of citations
circumstances,
supports
aggravating
Powell, v.
See State
affirmance.
decide
lays the foundation to
the Court
1990) (Blackmar,
(Mo. banc
S.W.2d
uphold
penalty.
ultimate
It
whether to
C.J., dissenting).
every element of the
that each and
follows
years
litigation
un-
upon
In more than ten
relied
aggravating
circumstances
penalty statute
der our revised death
sufficient
must
established
be
finding
has failed to enunciate standards
support
jury
beyond
Court
reason
Battle,
statutorily
able doubt. exercise of its
mandated
See State
cert. denied
1983),
proportionality
(Mo.
review.
banc
Holmes,
pal opinion’s merely
the
significance
trust
fund.
It
sis of the
of the
circumstance,
reciting
supporting
the
jury
quite likely
is
that
the
misunderstood
evidence,
that,
concluding
jury
if the
juxtaposition
the
of the trust fund evidence
circumstance,
penalty
the
found the
death
565.032.2(4).
statutory elements in
with the
appropriate.
must be
language
requires
The
of the statute
that
purpose of re-
killing
the
be done for the
ably
The
demon-
evils of this habit are
ceiving
principal opinion
value.
strated here. The
follows
grasping
the lead of the state’s brief in
to
admitted,
principal
Defendant
as
support
charged aggravating
circum-
states,
of
opinion
that he
the terms
knew
stances, and, accordingly,
of
sentence
mother
the trust. He knew that Susan’s
A
of the
adduced
death.
review
children
beneficiary.
income
The
was the
aggravating
circum-
support
in
proportionate
could not
received their
have
in order.
stances
is
of Su-
corpus
until the death
share
statutory
ag-
The trial court submitted
parents.
majority
The
concludes
san’s
565.032.2(4)
(§§
gravating
circumstances
that,
the sole
Ralph would become
because
(12),
1986) as follows:
RSMo
therefore exercise domin-
parent, he would
fund.
his children and the trust
4)
ion over
That defendant murdered
conclusion,
indeed.
reaching
This
is a
purpose
for the
of the defendant
Davis
trust
fund.
thing
Ralph
no access to the
receiving money
any
or
other
(1980).
Assembly
enacting statutory
It borrowed
S.Ct.
alty phase is his There is
dant to maintain innocence. for appeals, postconviction
diminished use if the
proceedings, corpus or even habeas guilt must somehow admit body.
pointing concept to the This boot- straps po- the defendant into an untenable Missouri, Plaintiff- STATE it offends sition and the Constitution. Respondent, aggravating if Even one both of the minimally sup- circumstances relied on is HENDRICKSON, Thomas still no ported, there is effort at substantial Defendant-Appellant. proportionality importance review. The No. 17001. legislature placed re- proportionality on provision view is demonstrated Appeals, Missouri Court of for an Court who the statute officer District, Southern duty studying the records of has Division Two. cases re- death sentence so as to aid our 565.035.6, July 23, Yet we do 1991. view. RSMo 1986. go particular facts of the sev-
not into Transfer Rehearing and/or to Motion for depth. any cases in rather seem eral We Aug. Denied apply presumption the same of correctness do in other to a death verdict that we *16 cases, leg- cases. The
criminal civil contemplated a further review
islature
us.
(II),
(Mo.
Petary,
banc
v. Gilmore