*1 Missouri, Respondent, STATE of DAVIS, Appellant.
Richard D.
No. 89699. SC
Supreme Missouri, Court of
En Banc. 29, 2010.
June Rehearing
As Modified Denial of
Aug. *3 Wafer, B. Public Defender’s
Deborah Office, Louis, for appellant. St. *4 Stаrnes, Atty. Richard A. General’s Of- fice, City, respondent. Jefferson STITH, Judge. DENVER LAURA tried and found Richard D. Davis was murder and by jury first-degree guilty assault, first-degree multiple counts of sodomy in con- rape and forcible forcible Spicer of Marsha nection with the deaths Huff Ricci. In accordance and Michelle recommendation, the trial jury’s with the Mr. Davis to death on court sentenced involving murder count Ms. first-degree counts, the remaining to the Spicer. As Davis to 13 life sen- court sentenced Mr. offender, nine persistent as a sex tences offender, and persistent as a life sentences of- 15-year persistent sentences as a two below, the reasons set forth fender. For no reversible error this Court finds raised, the sen- finds that points crime as re- to the proportional tence is 565.035.3, RSMo under section quired 2000,1and affirms. AND PROCEDURAL
I. FACTUAL
BACKGROUND Background A. General trial, in the considered The evidence verdict, jury’s light most favorable Armentrout, 99, 102 1999), May that on shows in rural grave discovered shallow officers body County that contained Lafayette indicated. statutory to RSMo 2000 unless otherwise All references are Spicer. of Marsha Police identified Rich Spicer’s friend cleaned Ms. body with ard D. suspect Davis as a in the Spicer dumped bleach and her in the shallow grave investigation. May Lafayette County. On officers executed a search warrant on Mr. Davis’ interview, During the police also asked apartment items, and seized numerous Mr. Davis about Ms. Ricci. Mr. Davis stat- among them a video camera and various ed that Ms. Ricci willingly come to his had videotapes, including tapes police designat apartment and that the two of them as ed as items 26 and 81. girlfriend well as Mr. Davis’ had consensu- al sex. Eventually, Mr. Davis and his depicts footage
Item 26 of Mr. Davis and girlfriend up tied Ms. Ricci against her will girlfriend his engaging in forced sexual raped and sodomized her. Mr. Davis acts Spicer with Ms. while her hands are said he hit eight Ms. Ricci seven or differ- bound tape. with duct It depicts ent times and that girlfriend he and his Davis straddling Spicer’s Ms. head and tried to smother Ms. Ricci but she resisted forcibly placing penis mouth, in her too much. punching Spicer Ms. in the side and stom- ach, and vaginally anally raping Ms. *5 interview, Based on Mr. Davis’ po- the Spicer as girlfriend adjusted his the cam- lice tapes seized more that were hidden at angles. era Item 31 shows Mr. Davis and Mr. workplace. Davis’ tapes, These which his girlfriend performing forced sexual police A, B, D, labeled C and showed victim, acts on a different Michelle Huff Mr. Davis raping, anally sodomizing and depicts Ricci. It Ms. Ricci with her hands punching Spicer Ms. and Ms. Ricci. In bound with yellow speaker wire. Portions rape addition to the sodomy, and Tape A of Item 81 show Mr. Davis vaginally rap- showed Mr. Davis grabbing Ms. Ricci by ing Ms. Ricci girlfriend hair, while his straddled holding her face to the camera face, her anally raping boasting Ms. and Ricci while about the control he had over forcing her face Ms. Ricci. girlfriend’s Tape into his B geni- showed Mr. Davis’ tals, forcibly placing penis attempt his in to smother Spicer Ms. Ric- Ms. and threat- mouth, ci’s en to larynx and crush her choking complained. and she striking Ms. Tape Ricci on the head and back C showed Mr. girlfriend while she cried sit- ting in pain. body out her naked down on Spicer’s Ms. face, smothering Spicer Ms. to death while Police interviewed Mr. During Davis. Mr. Davis held Ms. Spicer Tape down. D interview, Mr. Davis stated Ms. Spicer showed Mr. Davis taunting choking and came to Mr. Davis’ apartment and they Ms. Ricci until she urinated. had consensual sex for a while until Ms. The State filed a 26-count in- amended Spicer said she wanted to leave. Then Mr. charging formation Mr. Davis with first- Davis and girlfriend his rаped and sodom- degree murder for the death Spicer of Ms. Spicer. ized Ms. Initially, Mr. Davis as well multiple as counts of first-degree Spicer claimed that Ms. accidentally suffo- assault, forcible rape and sodomy. forcible cated to death while he girlfriend and his July On jury found Mr. Davis raped admitted, her. Mr. eventually guilty of all except counts one count of however, they that he knew were going to first-degree against assault Ms. Ricci. kill Spicer Ms. as soon as the sex “went far,” too as he decided he could not allow During penalty phase, the state sub- Spicer Ms. apartment leave the for fear (1) mitted statutory three aggravators: that she would alert the authorities. After that he had one or more serious assaultive died, Spicer Ms. (2) girl- convictions; Davis and his the murder of Ms. (8) mind; Spicer depravity involved and tant to in defending assist defendant him- occurred Spicer case,” the murder of Ms. investigating self and facts of the engaged while the defendant was appoint and the court to someone to perpetration jury ag- heard rape. with help legal research and in preparing gravating mitigating and evidence. After his defense and for access to a VCR and evidence, jury all hearing all found unspecified “tapes of evidence that will be statutory aggravators three and recom- in a suppression hearing used and trial.” be sentenced to mended death Mr. Davis did not state what he intended count. The first-degree murder be; only defense he said it trial court Mr. Davis to sentenced death “require experts drugs.” medical jury’s accordance with the recommenda- The second motion asked court to or- tion. appeals He his conviction and death attorneys der Mr. Davis’ to do certain penalty sentence. Bеcause death things “or make Defendant lawyer his own imposed, jurisdic- this Court has exclusive give facts, the help him to find needed Const, V, § tion. Mo. art. investigate violations, constitutional secure evidence prepair a very complex [sic
B. Mr. Davis’Ake Claims ] defence He filed an [sic ].” additional mo- indigent, Mr. Davis was deemed July 10, 2007, tion in which he conceded public appointed defenders were to repre- already that he had to a some access law Beginning sent him. June 2007 (as library but asked he previously had into extending July Mr. Davis filed done) for more library access and for a requesting numerous motions the court to *6 right per to “30 photocopies hour needed compel legal his to their counsel conduct and a to lawyer assist in repre- [Mr. Davis] in the he strategy way preferred permit senting help and someone to ... [him]self represent him him provide to himself and investigate.” various resources. The court these addressed various mo- On June Mr. Davis filed a tions at an hearing. October Be- motion “to be own my lawyer.” In that variously cause Mr. sought repre- to motion, requested Mr. Davis “to court sent and himself for court to order appoint investigating someone to assist in counsel to representing continue him but facts, witnesses, evi- deposing gathering do according legal so to his strategy dence, give and to [him] means counsel, rather than the court first represent himself.” On June Mr. sought clarify what relief Mr. Davis Davis filed motion “If I can not stating, really wanted. have compelled prepare [counsel instructions], according
case to Mr. Davis’ responded, first “I’ll do it then if it is true I can and be so-called represent myself.” I’ll myself, He said he lawyer, and have access to assistance it thought had over and it with discussed doing I the above then wаnt to do that and intoxicated, attorneys, that he was not library, help have access to law people to English, could and write read no witnesses, me, investigate help for I forcing represent one was him to decide to will for need trial.” himself. The court asked Mr. Davis if he knew the rules of evidence and Mr. Davis filed an additional motion the “try next he day making similar conditional re- said would to learn it.” The court that, continued, quests. following day, explaining Mr. Davis filed without as- counsel, two such op- motions. The first asked “for sistance of Mr. Davis’ pretrial appoint investigator, legal court to assis- tions would limited. The court re- public people
marked that office I can’t force to work for free. defender’s “money investigators, they has to send out youDo understand that?” money depositions have to take for rec- Mr. Davis: “Yes.” ords, of that The ex- things nature.” exchange, After this the court continued change continued: inquiring as to whether Mr. Davis wished you “And do understand that Court: represent himself. After some further there’s no absolute in a lot of those discussion, Mr. Daws decided to remain you under the have? things law for represented by appointed counsel. There- words, you In have to other come after, however, periodically he filed addi- money up you with the for that. Do asking tional motions that he be allowed to that?” understand represent himself for the reasons stated a, Mr. Davis: “For like to talk to wit- previously stating that his counsel nesses?” prepare way would not case “Exactly. you Court: Do understand always desired. He requests made these that?” receiving things conditional on such as “So, basically, Davis: I couldn’t talk funding generally pretrial investiga- for nothing?” to witnesses or tions, preparation, expert defense and trial “Well, things Court: there’s certain witnesses, expenses, and related as well as money about witnesses where re- “cost for investigator to locate defense wit- quired, investigators, to send out to take nesses, [sic], secure evidences locate evi- deposition of certain records that need dence, research defense issues” and “an something. you to be taken or Do un- witnesses, investigator to locate secure tes- that, obviously, things derstand those timony physical and locate and secure evi- money you cost would have to obvi- dence.” These motions also stated that ously come up money?” with that provide Mr. Davis wanted the court Mr. Davis: “No. That’s one of the rea- funding “copies of documents dis- [and] this, doing sons I’m I is because was motions, covery bewill needed [which] *7 wanting thought this stuff done. And I great defendant at cost.” Mr. Davis stat- maybe myself, that I could itdo that I ed that he any “will not be able to enter know, like, question, you police could evidence at a trial gather without funds to my officers or witnesses in case and evidence” and he would need tele- learn, know, prepare you they and what phone access because of wit- “[h]undreds going testify was to to and remem- nesses the state have to have their bered.” testimony reviewed and some will need to you Court: “Do understand that requested specific contacted.” He also money you takes to that? do Do under- exhibits;” “copy items such as photos as public stand that when the defender is transcripts;” photo- “funds for “funds for taking depositions, they’re paying for copies library;” in the law “law books not depositions? those you Do understand library;” the law and “funds to have that?” photos copied or made off of D.V.D.” Mr. could, Mr. “I you Davis: believed that explain Davis did not to what issues these know, you me, someone, help appoint requests they related whether were like, to I investigate go where can’t talk necessary present sig- to evidence about a people people.” to and locate if, instead, nificant they issue his case or front, “I’m telling you up you just Court: were general resources he wanted to understand, I power have no to do that. have might available as he need them. hear- suppression at would have testified day voir dire the same July On illegal the claims of search began, prove he to ing Davis’ trial Mr. examination seizure, involuntary statements. As pau- in forma “proceed and motion to filed motions, expert time that wit- my pro the first se stated for stated peris” have ability he would intoxication involuntary had the to regards ness in “defendant (Disso- ... on witnesses The court expert pro in the se motion.” contacted as stated (DID) Disorder) Identity ciative motion. overruled this Paxil and other Lexapro and effects of side Mr. Colloquy Regarding C. pre- (4) was defendant four medications Right Testify to relating time to during the scribed he stated that Mr. Davis also charges.” guilt rested in the parties Before the testify to who would witnesses “call trial, court, out of Mr. Davis’ phase of (DID) had fact that defendant and the Mr. jury, examined presence Mr. Davis would all life.” disorder his The concerning right testify. to court witnesses and call also “contact Mr. Davis had the explained that court (personality ] who seen [sic his church Mr. it understood that testify but (DID).” changes) Mr. Davis not to do so. opting Davis was court held a agreed the trial never July that he had responded On latter mo- Mr. Davis’ the last two hearing testify “explain to address wanted to —he already had that it The The court stated was out there.” tions. months that [he] mattеr hearing on the lengthy that if he testified conducted Mr. Davis court advised counsel. Mr. Davis’ removing proce- with the comply would have to he “under the understand- he was counsel Davis said the court and his rules of dural right, represent th[e] had ing [he] the examination. would conduct to do that.” to have funds there and “just [him]self allowed to sit would not be whether there court asked The he jury want[ed].” whatever tell say “[o]n Mr. Davis wanted thing other have he could inquired whether Mr. Davis did representing [him]self” Mr. Davis’ choos- questions of counsel ask what evidence a record of then make “no,” explained The court said ing. needed the or what he put on wanted ask fell questions to selecting the evidence to or whether there was funds for strategy, ... attorney-client an “under justify a DID defense sufficient support the case is.” strategy what Instead, he focused expert. hiring recess, allowing Mr. Davis court ordered *8 he had copies prior motions obtaining matter with counsel. the time to discuss collateral matters. filed and other recess, the court reiter- returning from On a “it Mr. Davis that wouldn’t ated to evi- began hearing guilt-phase jury get will you ... where situation 30, 2008, July July 2008. On dence say, would counsel] Davis’ stand and [Mr. trial, filed his the middle of tell them.” you want to jury what tell court, In that pro se.” “objections for the to he wanted again whether asked When being “not objected to motion Mr. Davis said, testify “I could testify, Mr. Davis myself, given represent allowed to testify to to I would want materials, anything to means, pho- funding for basic or not ask would the counsel because books, locate investigator to law copies, to Thereafter, to ask.” I wanted questions prove defense who would witnesses not want to he did Davis stated that (NGRI) (coworkers, friends, Mr. family). As phase. motions, testify guilt in the who prior witnesses stated On near August “very thе end Mr. wrote necessary.” Powell also presentation of that professionals Mr. evidence in the mental health “should be trial, penalty phase right of his the court trial.” again, every extended to assit [sic ] out jury, of the presence examined dire, During voir Mr. Powell said that he Mr. right testify. Davis his to about Mr. life, either could vote for death or had no “you that I remarked said have the preference sentence, keep for either I right testify, get to but if can’t my lawyer and, that, options open, both if he believed to ask then questions, me I have right no mitigating outweighed ag- circumstances clarified, testify.” to “today, The court circumstances, gravating he would vote for you’re testify, going going to it’s to be life. Mr. Davis’ counsel asked Mr. Powell attorneys your direction of as to the you whether he was “willing say that questions they relevant, that deem are somebody’s could look at experi- childhood questions that know they under the law give ence that meaningful consider- hear, jury can and things of that na- ation a to vote against as reason the death understood, ture.” Mr. Davis said that he penalty.” Mr. Powell replied, willing “I’m and the again provided court him awith it, I look at but believe adult as an recess confer with counsel. When Mr. you’re person a and no hap- matter what recess, Davis returned from the he said pened your you childhood know the testify that he wanted to asked right difference wrong between court, “Can I have them —ask them to ask killing person and not a killing person.” questions agreed of me?” The court The exchange continued: Mr. give was free counsel Mr. your Davis’ counsel: “But from questions list of he wanted to be asked but world it’s not view something “they might noted that ... ask [different] should be given meaningful consider- questions, though, making they’re because in deciding atiоn which punishment your questions decision of whether are give the deliberate murderer?” admissible or not admissible.” The court gave Mr. Davis 15 minutes to “Again, write his Mr. Powell: I think that’s so Afterward, questions. cases, Davis testified. yes, abstract. In some it could be, identify no, Davis does not on appeal but I generally, believe most questions he wanted asked that counsel did as an adult human being you know not ask of him. right person it’s kill or not your feelings what are.”
D. Voir Dire Juror Powell “And, Mr. Davis’ again, counsel: sort of Powell, jurors, One of the Adam wrote up your questionnaire follow on —and in a pretrial questionnaire that the death might you’ve just sort tie in what penalty was “appropriate used an amount” your told at least philosophical me—it’s and that he thought “most of the time the you belief that do believe in concept punishment fits the crime.” Mr. Powell eye of an an eye and a for a tooth also stating checked boxes that he “some- tooth for a and a life life?” *9 what death penalty the favorfed]” and be- “eye lieved the for an eye” concept. Mr. “I Powell: believe in that in the Mr. Powell checked another saying justice system, box context of if that he believed one's experience childhood is forth justice sys- what is laid “somewhat affects later behavior” and tem and that’s ordained how it works wrote that he “in believed some a society, orderly society, cases” the if that’s testimony professionals rendered, of mental health that, I yes.” what’s believe in Later, questioned the State’s counsel renewed his motion to exclude the playing tapes. of the objections Mr. Powell: These were over- permitted ruled but the court a continuing Powell, Prosecutor: “Mr. as I under- objection to the still photographs. Before it, sir, you generally stand while are not closing arguments in the guilt phase Mr. going give great weight deal of objection Davis renewed his to the State childhood, evidence of someone’s for ex- introducing the still photographs. The ample, something it is that if the circum- objection. court overruled this Footage appropriate, you stances were would 26, 31, A, B, tapes from C and D was consider.” jury shown via two consisting DVDs “Being talking Mr. Powell: that we’re so approximately footage minutes of mean, vague, yes. I I could see where together edited from nearly seven and something there could be that I would one-half activity hours of recorded on the generally consider but no.” tapes. weight, Prosecutor: “But it’s a matter of trial, During guilt phase De- it, how much you give credit would n tective generally John Howe testified as to you will.” the material tapes 26 and 31. These Mr. Powell: “Correct.” tapes were admitted into evidence but Prosecutor: “As un- opposed being played jury were not for the during the it at all.” willing consider trial. Prior to Detective Howe’s testimo- Mr. Powell: “Correct.” ny, prevent Mr. Davis moved to Detective Afterward, Mr. Davis moved to strike providing Howe from “a lot of specific ground Mr. Powell for cause on the tapes,” detail about what is on those argu- essentially Mr. Powell had stated that ing that it be unnecessarily repeti- give meaningful could not consideration to tive to do so. The court prosecu- told the experiences childhood as a reason to vote tor that Detective generally Howe could against penalty. the death The court de- tapes, summarize what was on the but nied the Mr. Mr. strike. Powell served on legal could not make During conclusions. jury as the foreman. Detective testimony concerning Howe’s E. Evidentiary Rulings one of the Mr. tapes, objected “trying repeat thing the same trial, Prior to Mr. Davis filed a motion to over and over again.” The court overruled footage exclude as cumulative from objection, stating that the descriptions tapes against of Mr. Davis’ crimes Ms. general. were Detective Howe later testi- Spicer and Ms. Ricci seized from Mr. A, B, generally fied about D. tapes C and Davis’ home and workplace tapes— These tapes also were admitted into evi- A, B, D. C and The court overruled the played jury. dence but not for the Mr. dire, During general motion. voir object specifically Davis did not to these objected proposed to the State’s use tapes descriptions or to Detective Howe’s in opening photographs statement of still tapes. these made from the tapes. objection to the photographs still was overruled. The still At a later point guilt phase, video photographs were to the jury recordings shown dur- of Mr. Davis’ statements and ing the State’s opening during police statement and clos- admissions made inter- ing arguments in guilt phase. played during Prior to view were admitted and statements, opening testimony Rapp. Mr. Davis renewed of Detective Chris objection photographs objection these still and Davis renewed his “for all the *10 “routine,”
grounds previously expressed ity in the mo- had become began and he sex, tion to suppress.” court overruled the in becoming rough involved anal sex objection. group sex. An aunt him en- made gage activity in sexual with his sister. present Mr. Davis in did witnesses There indicating was evidence that Mr. but, instead, the guilt phase cross-exam- by Davis stepfather. was molested his ined state’s witnesses to show that the Medical records from the Mis- Western not intentional murder was but that Mr. souri Mental Health Center showed that just got “caught up” in the moment. anxious, Mr. depressed, Davis was had guilt phase, jury In the found Mr. self-esteem, low anger and his and his guilty multiple sexually counts of sexuality became associated. Dr. Man- assaulting Ms. Ricci. In the penalty dracchia concluded that Mr. Davis had phase, presented the State evidence that disorders, several severe in- personality girlfriend Davis and his took Ms. Ricci disorder, cluding antisocial personality area, her, to a remote killed and set her paranoid personality narcissism and disor- body in attempt destroy on fire der. evidence of her death. The State also that, arrest, trying escape showed while Mr. Davis testified his own defense they kidnapped five-year-old child and penalty phase. sorry He said he was sexually assaulted, sodomized and beat for what he had done to his victims and her. When Mr. Davis was arrested not explained history about the of abuse in his thereafter, long police him overheard family. Mr. Davis also called a former telling girlfriend, got his “We to do some girlfriend, another friend and his sister to things pre- we wanted.” The State also testify on his behalf. previ- sented evidence that Mr. Davis had Objections F. Jury Instructions ously raped and sodomized a woman at Quash and the Motion to Mr. Davis’ In-
knifepoint, as well as evidence of other formation crimes. The amended charged information presented the testimony of a multiple Davis with of forcible counts Mandracchia, psychologist, Dr. Steven rape, sodomy, forcible sexual abuse and penalty phase. Dr. Mandracchia first-degree against assault his two vic- evaluated Mr. Davis’ mental condition at tims. To avoid confusion as to which the time of the crimes and at trial act, count referred to which each count in assessed whether dеvelopmental issues the information contained a reference to a contributed to his conduct. The doctor specific act recorded on one of the six abuse, that physical testified and sexual videotapes during recovered in- Spicer including by beatings stepfather, vestigation. Similarly, each of the verdict- lack interpersonal connections Mr. directing by instructions submitted family, as well as his exposure to that, language State included also to avoid figures, prevented inconstant adult nor- confusion, referenced one of tapes the six development. mal Dr. Mandracchia testi- by made Mr. Davis. For In- example, six, by fied that the age family mem- struction No. 13 stated: setting up bers were real or simulated sexual acts for IV, Mr. Davis and his sister you As to Count find and believe in, engage age 10 he was en- from beyond the evidence a reasonable gaging activity First, in sexual with a number doubt: May that on or about people. By age regular sexual activ- ... the defendant touched the *11 as Spicer depicted breast of Marsha .... “Tape B” rejected proposed The court the modifica- At the instruction confer- guilt-phase tion to language ap- contained in the ence, objected to each of defense counsel proved pattern MAI-CR 3d 304.02 format that “lan- ground
these instructions on the
verdict-directing
for
instructions.
specifically pointing
specific
to a
guage
day
On the last
of the guilt phase of Mr.
piece
prejudicial.”2
of evidence is
trial,
quash
Mr. Davis moved to
that
responded
phrases
were
information, claiming that it
Ap
violated
comply
in an effort to
with the
inserted
466,
v.
prendi
Jersey,
New
U.S.
pattern
by directing
jury
instructions
2348,
(2000),
S.Ct.
Also at the instruction con- this motion. ference, In- objected defense counsel
struction Nos. 70 and 71—which instructed
jury
mitigating
to determine whether
II. STANDARD OF REVIEW
outweigh
cir-
aggravating
circumstances
The evidence is
reviewed
to place
cumstances—failed
the burden on
light most favorable to the verdict. State
prove
mitigating
the State to
circum-
(Mo.
702,
Strong,
142 S.W.3d
banc
outweigh aggravating
stances did not
cir-
2004).
argues
appeal
cumstances.3 The court overruled the ob-
deprived
the trial court
him of
right
jections.
requested
Defense counsel also
represent himself.
“Denial of a defen
verdict-directing
instruction for
dant’s
to self-representation is con
each of the 26 counts be modified so that
error,”
Black,
sidered structural
State v.
“unanimously”
the word
be added
2007),
phrase
you
“if
find
believe from
deprivation
“its
cannot be harmless.”
beyond
the evidence
a reasonable doubt”
Wiggins,
McKaskle v.
177 n.
guilty
to return a
verdict on that count.
U.S.
(1984).
example,
For
Instruction No.
104 S.Ct.
As Count appeal cause shall not be disturbed on find and believe from the evidence be- yond against weight .... unless it is reasonable doubt: Howev- evi er, [unanimously] you unless find dence and constitutes a clear abuse of 39; objected following 2. Mr. Davis verdict- XVII—Instruction No. Count XVIII—In- 41; directing instructions: for Count IV—Instruc- struction No. Count XIX—Instruction No. 13; 43; 15; 45; tion No. Count V—Instruction No. Count XX—Instruction No. Count 17; 47; Count VI—Instruction VII—(cid:127) XXI—Instruction No. Count XXII—In- No. Count 49; 19; struction No. Count XXIII—Instruction Instruction No. Count VIII—Instruction 51; 55; 21; 23; No. Count XXV—Instruction No. No. Count IX—Instruction No. Count 31; Count XXVI—-Instruction No. 57. XIII-—Instruction No. Count XIV—In- 33; struction No. Count XV—Instruction No. 35; 37; 565.030.4(3). § Count XVI—Instruction No. Count See *12 630 Johnson,
discretion. State v. 244 1. No S.W.3d Cases Hold a Misstatement Ake of 144, 158 (Mo. 2008). banc Faretta Constitutes a Violation Where a Chooses Not Defendant alleges error admit Represent Himself. ting submitting certain evidence and cer argues the trial court tain A instructions. trial court’s eviden- misstated the law what about “basic tools” tiary rulings are for abuse reviewed of “adequate anof defense” he would be enti- Simmons, discretion. State v. tled to receive from State under the 1997). 729, 737 “A trial court’s States Supreme United Court’s decision admit an decision to evidence is abuse of Oklahoma, v. Ake 470 U.S. 105 clearly against discretion when it is (1985), 84 S.Ct. L.Ed.2d 53 should logic of the circumstances then before the represent Mr. Davis choose to himself. court, is so and unreasonable and arbi says He this misstatement caused him trary justice it shocks the of sense decide to attempt withdraw his to waive careful, and a indicates lack of deliberate himself, right to represent his counsel and Smith, consideration.” v. 136 right a he is entitled under Faretta (Mo.App.2004). S.W.3d 550 “It is California, 422 U.S. 95 S.Ct. within the trial court’s discretion decide (1975) 45 L.Ed.2d a (recognizing whether a jury tendered instruction right Sixth Amendment to self-representa- Johnson, should be submitted.” tion). Therefore, argues, this Court However, at 150. pre S.W.3d a “court is should find the alleged misstatement his of prejudicial sumed to commit error if it violation, rights under Ake resulted a applicable fails to an use MAI.” Id. “If a Faretta, not Ake but of in that it meant proffered instruction is in conflict with represent decision law, himself substantive a court should deсline to knowingly was made and intelligently. it.” Id. follow Finally, in reviewing imposition of a argument error in explain- sentence, death section requires 565.035.3 ing right to basic tools of a this proportionality Court to undertake a defense under can Ake itself a constitute review to determine: violation Faretta a novel and creative one, but Mr. cites no case decided
(1) Whether the death sentence of either under Faretta or Ake that supports imposed passion, under the influence of it, and this Court has found none. prejudice, factor; or arbitrary other (2) supports Whether evidence Faretta, 833-34, In at U.S. 95 S.Ct. jury’s judge’s finding statutory 2525, the Supreme Court held that aggravating circumstance as enumerat- Amendment, Sixth applicable to the states ed in subsection 565.032 section through Amendment, the Fourteenth found; (3) any other circumstance guarantees criminal defendants right Whether the sentence of death is exces- self-representation at trial. So as long disproportionate sive or to the penalty the defendant unequivocally invokes the imposed cases, in similar considering self-representation, does so in a crime, both the the strength of the evi- manner, timely the corresponding dence, and the defendant. knowing waiver counsel is and intelli- a trial gent, may court not force an attor- III. DISCUSSION ney competent Black, defendant. A. No Ake or Faretta Shown Violation 153. To ensure a knowing counsel, get that he could not intelligent waiver of assistance he engage in provided that trial courts must has stated desired be without cost should he to make colloquy with the defendant waive counsel. For the purposes of ad- *13 “exactly understands certain the defendant therefore, dressing argument, this this waiving, he is as rights privileges what presume, will dеciding, without that dangers well the associated with waiv- as substantially misleading a to defendant as Id. ing rights.” constitutional rights the he would have under Ake should represent himself in some circum- No court has held either the Faret- stances could a constitute Faretta viola- a colloquy ta must include discussion of tion. basic “tools a defense” the consti- what of provide requires
tution
states to
defen-
Principles
2. Ake
Apply
Do Not
do
dants or that the failure to
so accurate-
to
Requests
the
Davis Made.
all,
ly,
even
a
or
at
constitutes
violation of
for,
surprising,
This is not
as set
Faretta.
Ake,
In
As Mr. Davis’ claim error omitted). whether, tion To evaluate marks relationship turns on the between his deci- conditions, “partic and under what relinquish self-representation sion to ipation psychiatrist” “important was right under Faretta and the court’s state- enough preparation a defense to re designed ments Mr. Davis that were quire provide indigent the State to de apprise dangers pro- Davis of access,” ceeding warnings fendant with Ake balanced three without counsel— (1) duty-bound private but factors: interest affected court was to make (2) State; says incorrectly governmen also told him the action types experts apply to other the safe would by providing affected tal interest made that (3) showing is required probable value guard; and be a is to address will expert issue the procedural safe or substitute additional issue. key at trial on a significant factor depri of an erroneous and the risk guards Rees, See, 985 F.2d Terry v. e.g., absent those of the affected interest vation Cir.1993) (6th factors, Little v. (pathologist); Weighing Id. these safeguards. (8th Armontrout, 1240, 1243 Cir. 835 F.2d required concluded that Ake Stаte, 1987) Moore v. (hypnotism expert); expert once provide psychiatric (2005) A.2d “men 390 Md. showing made a that his defendant *14 (DNA Moody, Ex Parte 684 analysis); seriously question” in tal condition [wa]s (Ala.1996) 114, ap (holding Ake offense So.2d 119 sanity at the time of the and “his non-psychiatric ex generally to plicable factor at trial.”4 significant to be a [wa]s Commonwealth, v. 83, 105 perts). But see O'Dell S.Ct. 1087. Id. at (1988) 491, 672, S.E.2d 499 234 Va. 364 misplaced. reliance on Ake is Mr. Davis’ funding not extend to (holding Ake does principles discusses broad While Ake experts). for forensic with access govern providing a defendant defense,” adequate of an to “the basic tools the re- concurs that where This Court 77, 1087, the actual at 105 S.Ct. U.S. significance and necessi- quired showing The State holding of the case is narrow: made, may rationale extend to ty is Ake’s for a supply psychiatric expert a must experts appropriate non-psychiatric who represented indigent but defendant case, This is not such a however. case. mental condition was has shown the court at the time Mr. Davis did not tell sanity at the seriously question and his hearing complained of that he need- significant time of the offense will be a of an provide ed the State to assistance notes, at trial. the State factor As In his expert significant on a trial issue. Mr. Davis’ situa- holding inapplicable motions, with experts other he mentioned reasons, multiple many of which tion for only three times: specificity a measure of relevant, here. dispositive, are trial, he said he wanted an On eve Identity on “Dissociative Disorder expert Another 3. Mr. Davis Did Not Show (DID)” pre- and on the effects of several Expert Necessary. was taken; scription drugs during he had First, notes, trial, of evidence at his he presentation the State no subse requested “expert regards case an witness quent Supreme United States Court intoxication;” in an earlier involuntary other than experts has extended Ake motion, trial, “ex- unspecified at and Mr. Davis’ he said he needed psychiatric experts At time many perts drugs.” re in medical no did requests encompassed various speculation other than psychiatric expert in addition to a offer basis sources true, majority requests sig- of believe that these concerned at trial. this is While trial, nor did he show courts that have ad nificant issues at federal state sig- conditions would have been this issue since Ake have conclud these dressed nificant defense. reasoning underlying that the Ake also to his ed initially incompetent deemed to stand trial 4. The defendant in Ake had satisfied this test because, reasons, among only other his sole de- permitted proceed after tak- and was insanity, he so fense was that of behaved drugs. ing large U.S. at doses of sedative bizarrely arraignment that the court or- at 1087. 105 S.Ct. examination, competency and he dered a was (“In (1986) exam 346 S.E.2d contrary, To Davis was N.C. case, the present the defendant has failed prior trial. This psychologist ined to make a threshold showing specific Davis’ also testified on Mr. psychologist necessity investiga- for the of an assistance Although he penalty phase. in the behalf background tor” into for the key witness so, Mr. obviously available to do state). testi provide did not psychologist involuntary intoxi mony supporting Ake, prior Supreme from Apart that Mr. suf cation Davis was defense recognized cases have that in some circum DID, fering from however.5 requires pro stances the Constitution required showing failed make the appeal, of a free transcript vision Grif seriously that was Illinois, 19-20, mental condition v. 351 U.S. 76 S.Ct. fin question signifiсant that was to be issue 585, 100 (1956),competent L.Ed. 891 coun trial, at and as to which he was denied trial sel v. Wainwright, at Gideon Ake, expert See 470 U.S. assistance. 83 S.Ct. L.Ed.2d 799 U.S. 82-83, 105 (1963), on direct appeal, Douglas S.Ct. *15 353, 358,
California, U.S. 83 S.Ct. Showing Mr. Davis Made (1963), No and, in prison h. L.Ed.2d 811 for Ake to Supporting Extending mates, the to to a right reasonable access than Experts. Tools Other library adequate law or assistance from persons law, trained Bounds v. argues requires Mr. Davis that Ake Smith, U.S. 97 S.Ct. a self-represented the State to furnish de (1977). L.Ed.2d 72 beyond for a fendant with tools defense these cases Mr. None of would entitle trial, of at as merely provision experts says Davis to the “tools” he were not was the case in Ake. He not cite does provided. generalized requests Mr. Davis’ authority support proposition, this how preparation, trial as appeal concerned not independent ever. This Court’s research Douglas. He had counsel also has not identified cases in which a Griffin trial whom he wanted to be rid of not require was made showing sufficient to were not be- they competent because but non-expert of the provision of defense tools they cause refused to allow him to decide sought kind Mr. Davis from the trial court strategy to in his case. legal employ under Ake. Two older state court decisions did he complain While Mr. Davis that that, suggest particularized were a show library he generally, wanted more time ing importance of substantial need already conceded a motion that he had made, principles underlying might Ake library a to a law never made access require types other making of essential showing why particularized to the court See, tools in a particular available case. he had or the access was insufficient e.g., 313 Or. P.2d Rogers, the matters he to research whether needed (1992) (Defendant 1308, 1315 “failed to es defense, which, in significant to his were probable tablish the value to him of the event, being at that time any was handled public opinion poll light the extensive by counsel. voir or there was a provided dire significant suggest of error in not proceedings risk This does mean a poll”); Hickey, without State v. 317 that a defendant never could show Davis, expert Dr. condi- who testified for Mr. cal abuse and about other mental Mandracchia, testimony developed doctor offered Mr. Davis and that the extensive tions physi- Mr. contributed to conduct. about Davis' childhood sexual and believed questioned, something expert, good to tools other than an essential a were would be found, Ake, situation, rather a as in competent attorney transcript and free on than an expert where the need for was clear sufficient re- appeal, legal access case, significant and its relevance a trial issue particular search In a a facilities. evident. to make may defendant be able the kind of particularized showing required by Ake. request for Similarly, general Daws’ Mr. Davis holding has cited case photocopies, a a typewriter, access to provision that Ake principles require VCR, telephone forth was so accom- kinds he generalized of “tools” said he panied only by undeveloped assertion grant him
wanted the court without help they would constitute he would need cost, however. Much less did he make a trial; couple requests for these failed particularized showing an issue serious- why provision with facts as to of such tools inly question likely signifi- to be would be relevant to the issues before cant at his trial and for which he had triаl court.
shown the kind need discussed below. Recognizing deficiency, suggests appeal it was the trial Showing
5. No Made Was judge’s burden to show that the various Need Other Assistance. types requested assistance requesting Even when a defense “tool” necessary were his defense. This is recognized authority, under Ake or other itself, contrary to Ake which makes it clear required defendant must make the show- it is defendant who must make a *16 ing significance need and under Ake. “preliminary showing” that the basic tools a Mr. Davis’ failure to do so is fundamen- he requesting “important enough is are to bar appeal. tal to his claim on Absent preparation of for defense” the State to be a the trial showing, such court was correct Ake, provide required to them. 470 U.S. him telling that the State was not 74, re- 77, 105 at 1087. S.Ct. quired provide him with own his investi- Later and state federal decisions have gator and that he would have to up come explicated made; how showing this be must with the funds for most of the “tools” he prevailing requires test the defendant wanted. to show the trial that court there exists a many
While Mr. Davis made motions reasonable probability expert both that seeking general one or more assistants or be would of assistance to the defense and investigators go who could talk with that denial of expert assistance re depose witnesses in neighborhood fundamentally sult in a unfair trial. (11th might 702, elsewhere who able to support Kemp, a Moore v. F.2d 712 809 Cir.1987). suppression helpful motion or otherwise be This has approach recog been trial, See, at he jurisdictions. failed to state facts with e.g., nized a host of Lee, (4th particularity 411, indicating investiga- Page what the v. 337 F.3d Cir. 416 2003); might Collins, tor or 841, uncover how what the investi- Williams v. 989 F.2d (5th gator important Cir.1993); Little, found was to an issue that 845-46 835 at F.2d (8th Cir.1987); Moore, reasonably expected signifi- 343, could be to be 1244 390 Md. effect, 339; cant his trial. In he wanted the 889 Apelt, A.2d 325 at State v. 176 349, supply personal 634, (1993); state to a assistant or Ariz. 861 P.2d 651 Craw State, paralegal 681, 201, who would v. follow 257 Ga. 362 S.E.2d ford (1987); State, strategy 550, decisions. It appears more to 206 Cade v. 658 So.2d have a hope enough been people (Fla.Dist.Ct.App.1995); 554 State v. Tou-
635 chet, 1213, (La.1994); Clemons, Tay- specificity. So.2d 1216 See 642 State v. 946 State, 206, 1997) (to 152 n. lor v. 3 222 S.W.2d qualify joins Ake, (Tex.Crim.App.1996). This facts, under a allege defendant “must them. mere legal state conclusions or theo ries”). See also v. Martinez Court Ap up judge It to decide what is peal California, Dist., Appellate Fourth present. Only will defendant the defense 528 U.S. 120 S.Ct. and his counsel can make that choice. For (2000) (a court L.Ed.2d trial “is under reason, a provides this Ake defendant duty ... perform any no ‘legal’ chores may request parte hearing an ex at which defendant”). for the present sought-after he can or she how the support defen evidence assistance will appeal Mr. Davis raises no claim 82-83, Ake, trial strategy. dant’s 470 U.S. at parte hearing7 was denied an ex (“When S.Ct. 1087 the defendant is particular- never otherwise made such parte able to make an ex threshold show showing ized that he needed assistance ing sanity to the trial court that his is investigator from an develop specific likely significant to be a factor his de evidence on a significant trial issue as op- fense, the need for the assistance of a posed hoping provide someone would psychiatrist is readily apparent”). general him the assistance and research that, fact, counsel then providing.
In
Mississippi,
U.S.
Caldwell
The trial court
in telling
was correct
323 n.
S.Ct.
would be beneficial” are to sup- insufficient port finding right Finally, a of a constitutional to importantly, and Mr. reasons, funding.6 state For similar this claim encompassed Davis’s is not within rejected has request lacking represented Court an Ake because by Ake Ake was Supreme 6. Caldwell requests typewriter, In the United States to Mr. Davis' for a 8. As question VCR, did not the address broader of player, right DVD telephone, the to whether, made, showing specific had a been it “copies,'' transcripts, a set make number of application would have extended of the Ake exhibits, motions, photocopies copies beyond experts to other tools defense library," "law books not in the law he did simply showing but instead noted that no had specify why they not he or how needed these been made. question seriously related to issue that significant to be a at was matter trial. Mr. Although 7. in a June Mr. 2007 motion Davis Davis never showed was a that there reason says hearing that there is a where he reveals probability things able both that the he discovering the facts that he is interested sought would be to his of assistance defense excluded, prosecutors he like to would the be that denial of them would result a hearing he never noticed nor such a did he Instead, fundamentally unfair trial. he seem request hearing at the October that he 2007 ingly wanted to tools so he bank these permitted be to discuss issues with the these have them on he need openly hand should them. parte court either in a or ex closed session, despite request is not the that the that This kind of assistance Ake or court's exactly tell the court what he re- require provide. other court to cases the questing from the court. re to additional state-furnished sought right who counsel and it was counsel despite indigent the fact that the or of a sources appointment psychiatric funds for Here, claim private Davis does not had retained counsel expert. defendant system rejected did not public appoint defender his mother and hired provide English him with access v. public have funds ed defenders. Missil 1981). (Iowa prep- dine, 292, investigative the kinds of and trial 311 N.W.2d 293-94 Rather, Mr. aration tools he desired. persuasive authority is not English sought represent himself rather there is a federal constitutional requires just claimed that Ake not providing; for so prudential than a reason provided the basic tools for a defense grounding it Ake and instead of pre-dates provided person- also that he be them but right to defense tools fundamental ally through rather than counsel. Clause, as fairness under Due Process Ake, English a re right had read the State
Nothing in Ake indicates that
in the Sixth Amendment.
sources
Id.
a
his choice of wheth-
must offer defendant
cases
cites
remaining
purport
tools
counsel
through
er to receive these
the notion that Ake
ing
gives
to bolster
Indeed, Ake
suggests
or himself.
right
all
self-represented litigant
contrary.
same time it said that
At the
provided through
that are
counsel
tools
required
provide
the State
may be
in a
are rooted
state statute or constitu
circumstances,
in some
psychiatric expert
provision
independent
tional
federal
indigent
Ake
that an
defendant
cautioned
rather than in Ake. See
right
United States
right
does
have a “constitutional
(9th
Sarno,
1470,
v.
F.3d
1491-92
Cir.
personal liking
psychiatrist
choose
(not
1995)
Ake,
citing
court notes
hire
or to receive funds to
his own.” 470
self-represented
to some
litigant
resources
Instead,
U.S.
105 S.Ct.
against security
balanced
considerations
indigent
defendant
“concern
unduly
but
that access was not
re
finds
competent psychiatrist,”
have access
ato
stricted);
Burns,
v.
State
P.3d
799-
Ake left
“to the State the decision
2000)
(Utah
(invoking
indigent
Utah
implement
right.”
how to
Id.
statutes);
Silva,
defense
it is
language,
perhaps
Given this
(2001)
Wash.App.
P.3d
669-77
surprising that few courts even have con-
(invoking Washington state constitutional
applying
principles
sidered
Ake
in the self-
provision).
Moore,
litigant context.
In
represented
indigent
court informed him
as a matter of
The court also did not misinform
“attorney-client
strategy,”
...
defense
by telling
him that he could not
precisely
counsel would decide
ques-
(or
what
force his own counsel
that for the
(as,
tions counsel would ask Mr. Davis
of State) to
particular questions
ask
and not
course,
the prosecutor).
Mr. Davis others.
While
decision whether to ex
inveighs against
ruling
the court’s
that he
right
testify
ercise the
exclusively
rests
permitted
would not be
in
testify
narra-
defendant,
Barnes,
with the
v.
Jones
463
form, calling
tive
it “unnecessarily restric-
745, 751,
3308,
U.S.
103 S.Ct.
77 L.Ed.2d
tive.”
manner of a defendant’s right
(1983),
987
the tactical decisions as to how
restricted, however,
testify may
witnesses,
to conduct examination of
in
accommodate other “legitimate interests in cluding
defendant,
that of the
lie with
Rock,
process.”
criminal trial
483 U.S.
counsel.11 Mr.
Davis does not cite
(internal
55,
at
639 evidence; ruling “The trial court’s on a he was not simply inclined to challenge for shall not cause be disturbed give it much the credit in usual case. appeal against weight on is of unless it the Willingness give a of piece evi evidence and constitutes a clear аbuse meaningful dence consideration does not Johnson, discretion.” v. of State 244 juror a agree mean during must dire voir (Mo. 144, 2008). S.W.3d 158 banc In a that he is a likely particular type to find of case,
capital
for determining
standard
persuasive.
evidence
Juror “qualifications
juror
when a prospective
may be excluded
are not conclusively
by any
determined
juror’s
for cause is “whether the
views
response,
single
but from the entire voir
prevent
substantially impair
would
or
dire examination.” State
Lyons,
v.
951
performance
juror
of his duties as a
(Mo.
584,
1997).
S.W.2d
banc
accordance
his
and
with
instructions
his
totality of Mr.
on
Witt,
412,
Powell’s answers
his
v.
Wainwright
oath.”
469 U.S.
pretrial questionnaire
(1985)
during
and
dire
voir
S.Ct.
L.Ed.2d 841
omitted).
(internal
show that he
willing
quotation
meaningfully
marks
For
example,
mitigating
if it
that a
cannot
consider
childhood
“appears
juror
experience
range
punishment, apply
proffered by
consider the
of
evidence
Mr. Davis. Cf.
proof,
Simmons,
the correct burden of
or
follow
737 S.W.2d
473-74
case,
(no
court’s instructions
a murder
then
(Mo.App.1987)
error where court de
challenge
a
for cause will be sustained.”
strike
person
nied
of venire
initially
who
Johnson,
of the case.’” State 2002), deprive the State graphic cause it is quoting, State it the Mathews, when it needs the most: (Mo.App. of evidence 33 S.W.3d prose- 2000). would be inadmissible to logical Mr. the rel evidence Davis concedes are the most serious typically the was ad cute what of evidence claims evance crimes”). improperly. mitted testimony de officers’ that rele As the logically is Evidence tapes, the events on the Mr. necessarily scribing vant is not admissiblе. it unfair offers evidence that inflamed relevant evi no probative logically value of simply The officers described against prejudice. the risks it weighed must be dence cumulativeness, tapes general the in additional events on poses prejudice, of unfair issues, misleading prejudi terms in order to avoid the more of the confusion the footage all the playing of time. cial alternative jury, delay undue waste Anderson, Similarly, Mr. Davis makes Legally entirety. at rele its 276. S.W.3d its dis showing no that the court abused that survives this vant evidence is evidence contrast, footage Davis’ allowing cretion in of Mr. balancing By admissible. is and, the inculpatory during statements made legally relevant there evidence not are fore, admissions outweigh police costs interview. Such must excluded its highly They “The do not become un Id. determination of relevant. benefits. its fairly simply they because hurt prejudicial ... rests within the sound legal relevance Tisius, 92 Mr. Davis’ case.12 the trial court.” discretion reasons, rejects For this Court similar Here, the was argument within Mr. Davis’ that evidence the trial court acted well its In an effort to limit determining unduly the risks of cumulative. discretion the enough exposure entirety to the jury’s not prejudice great unfair were footage tapes, jury disturbing outweigh probative disput- value only was edited version videotape footage shown 90-minute ed evidence. While hours of from that of the over seven and one-half photographs and still made foot- they testimony film. The about disturbing, were were officers’ age highly description tapes accounts of the crimes contents of went first-hand recorded jury not shown. footage case and were su- of that the was charged so poten- of evidence preme probative They Accordingly, value. werе these two strands pho- duplicative. were not While the still tially prejudicial, prejudice but arose taken from gruesome Mr. Davis’ the State used were tographs from the nature of crimes, videotape footage, permitted in the their use from action of State footage having particu- the State to avoid revisit presenting the method of opening segments footage during court within its lar photographs. The Finally, determining proba- closing argument. statement discretion outweighed duplicate Mr. statements did not tive value of this evidence its interviews, Johnson, the above evidence. In those prejudicial effect. See State v. but (Mo.App.1996) culpability 462-63 Davis admitted some objections con- argues plain Davis' error. Rule 30.20. This Court 12. The inculpatory challenged statements to the admission of that the evidence was ad- cludes testimony police and Detective Howe's re- regardless re- of which standard of missible garding tapes were contents of the applied. view is preserved properly and so should be reviewed *22 the evidence referenced ing jurors the respon- to his misleading as or evasive was proof of provide in the instruction would which crimes with of the sibility for some trial courts charged the offense. While charged. ultimately was during from conduct trial are barred Evi- Commenting about the E. Court demonstrating a belief can construed as dence Davis, guilty, State v. that the defendant is sub number of the instructions A (Mo. 1983), 167, 177 banc over- included a refer counts mitting particular grounds by, Kuyper other ruled on which the tape on particular Comm’n, ence 838 S.W.2d County Stone instance, For depicted. crime was alleged 1992), these references did 13 stated: No. Instruction such conduct. not constitute IV, find and believe you As to Count notes, rеferences to As the a reasonable beyond evidence from the in the similar references “Tape B” and doubt: under appropriate directors were verdict 14, 2006, ... First, May “identify the that on or about direction to the Notes on Use touched the breast reference.” by some other the defendant occurrences “Tape B” depicted referencing in time and date would Spicer Merely as Marsha discrepancies
have unworkable due been stamp time and date accuracy in added).13 instruction for- This (emphasis by used Mr. Davis. Mr. on the camera jury in differen- to assist mat was used another method suggested has not submitted, numerous offenses tiating the in- have been jurors could by which by the Notes on Use contemplated as crime which was formed how to determine 804.02, per- in provide, which Bd MAI-CR verdict director. which being submitted part: tinent Further, No. 3 advised the Instruction Victim, (c) Multiple Offenses—Same court “does not mean jury that Period of Time. Short to in any fact referred assume as true with more charged If the defendant it to you leaves instructions but these victim involving one crime same than are.” This lan- what the facts determine time should be day, same on the safeguard, have acted as a guage would as “at about on each instruction shown assumed that jury chance the reducing the night on” or “between day ] or [time of depicted were fact charged offenses on” a day night or ] the hours of [time instruc- because the tapes simply date. specific depicting the tapes as tions referred to L.L.C., Express, v. Sher crimes. Mathes to fix the occasion impossible If it is (“This (Mo.App.2006) date, the instruc- by the offense time jury of a the chances instruction reduces by be modified the Court tion should a controverted concluding that improperly other by occurrence some identify the the court to be assumed fact has been reference. true”) (internal quotation citation omitted). marks 304.02(c). 3d MAI-CR Moreover, Mr. Davis’ the evidence that these references argues above, so over out in detail guilt, court tell- set of the trial equivalent
were the 43, 35, 47, 49, 51, 39, 41, 33, 35, 37, IX, through IV XIII particular, In Counts XXVI, through kind of reference. through XXV sub- contained this XXIII and 55 and 13, 15, 17, Nos. mitted Instructions whelming tapes that the references to the You will then the case with discuss your jurors. you in which the Each of crimes were recorded fellow must *23 have yourself verdict directors could not had a deci decide the case for but you sive on the of jury’s only you effect determination should do so after have consid- entirety portions evidence, guilt. The of the fully ered all discussed it jury provided for the tapes played jurors, sub with the other and listened to the charged stantial of each of proof your of jurors. fellow views of and, in closing argument, fenses Mr. Davis verdict, guilty Your whether or not guilt conceded of all sex crime guilty, agreed by juror. must be each counts and assault counts of which he was Although the verdict must be unani- convicted, only contesting the first-degree mous, signed the verdict should count the assault count on murder your foreperson alone. guilty” which he a “not obtained verdict. you your When have concluded delib- “Overwhelming guilt may evidence of lead erations, you will complete applica- court that a appellate to find defendant ble form to which you unanimously Banks, prejudiced.” v. was not State 215 agree and return it with all the unused (Mo. 2007). 118, 121 S.W.3d banc Because and the forms written instructions of the overwhelming evidence established Mr. Court. offenses, guilt any for these in error in” depicted use of the “as references Johnsоn, As noted this in the tapes verdict-directing instruc language apprise jurors was sufficient to not prejudicial. tions was they unanimously that must find every F. Verdict Director particular Instructions Were element beyond of offense Proper guilty reasonable doubt to return a verdict on that offense. argues
Mr. Davis also that Quash G. Motion instructions did not the jury inform ade Information quately unanimously that it had to find next argues that the court proved that State each element of each quashed should have the information be crime against submitted order find statutory aggravators. cause it failed to list him as that crime. point The same was In support, Mr. Apprendi Davis cites v. Johnson, rejected raised and in State v. 466, New 530 120 Jersey, U.S. S.Ct. (Mo. 2009). 284 S.W.3d 575 banc (2000). 147 435 L.Ed.2d As this Court has jury Johnson held that the instructions as cases, noted in prior Ap numerous neither sufficiently jury whole advised the that prendi require nor other cases that its verdicts on each count must be unani charging document list aggravating cir mous as to each element and additional cumstances; the notice aggravating of cir instructions on the requirement of unanim under cumstances section 565.005.1 was ity were not necessary. adequate notify Mr. Davis that he was See,
The holding. charged capital Court reaffirms that The with a e.g., offense. instructed, jury Johnson, (Mo. example, was it v. State Johnson, 2009); could find Mr. guilty banc State v. first- S.W.3d murder, (Mo. Gill, degree 2006); “unless [it and be- banc found] 2005). beyond from the evidence lievefd] a rea- each declining sonable doubt and all of these trial not err propo- quash court did jury sitions.” The also instructed: the information. Jury regarding Instructions This
H. indepen- Court has undertaken an Effect Mitigation Evidence dent review of the record and does not find that the sentence of death was im- Apprendi Next, argues posed under the influence рassion, prej- juries capital cases be requires factor, arbitrary udice some other nor State bears the burden instructed has Mr. Davis identified such factor to 565.030.4(3) during section proof the Court. The Court further finds that determining mitigating whether step the evidence determi- supports jury’s cir- outweigh aggravating circumstances *24 (1) nations: prior that Davis had as- pri- cumstances. Court reaffirms its This saultive requirement rape convictions for forcible holding or there is no and (2) weight sodomy; the determination of the of forcible that the murder was mitigating aggravating circumstances depravity committed with of mind because beyond the State a rea- be established the crime binding Spicer, involved Ms. Johnson, doubt. 284 S.W.3d. at sonable subjecting repeated her of grue- acts 587-89. physical some and sexual torture with the death, purpose promoting of her and that Independent Proportionality
I. Revietu or in killing killed aided Ms. Finally, although Mr. Davis does while Spicer helplessly, she was bound argue on is appeal his sentence thereby exhibiting disregard a callous for crime, disproportionate to this (3) life; human that Mr. Davis was in obligation conduct a independent has perpetrating rape the course of of Ms. proportionality imposition review of the of when Spicer he murdered her. case. State v. death in his penalty Edwards, (Mo. banc S.W.3d To determine whether a sentence of 2003). that all requires Section 565.035.3 death is excessive or in disproportionate penalty pro death cases reviewed comparison penalty imposed in simi- v. McLaughlin, State portionality. “[sjection cases, requires lar 565.035.3 con- (Mo. 2008). 257, 277 banc Under factually of ... sideration all similar cases 565.035.3, this deter section Court must including resulting those in a sentence of mine: imprisonment life withоut the of possibility
(1) Whether the sentence of death was Anderson, State v. probation parole.” or imposed passion, under the influence of (Mo. 2010) 306 S.W.3d banc factor; prejudice, arbitrary or other any J., part (Breckenridge, concurring in (2) Whether the evidence supports concurring opinion joined in result in in court).14 jury’s judge’s finding statutory of a regard by majority this of the ...; aggravating circumstance inquiry This Court adheres to a familiar in (3) It applying approach: death this do- “continue[s] Whether the sentence of is what in ing regard it now does to cases in pen- excessive or disproportionate to cases, alty imposed which death was them to imposed in similar consider- —review crime, ing both the of the of strength determine whether sentence death evidence, crime, in disproportionate light and the defendant. of the Deck, Compare v. State 303 S.W.3d sell and Chief Price vote in favor of Justice (Mo. 2010) (no majority opinion only 550-53 banc death consideration cases in which Judges Breckenridge, on this issue as Stith imposed, Judge Teitelman concur- with and Wolff vote favor of in consideration ring only, leaving only thereby in result imprison- cases in death both which and life issue). opinion plurality on both sides this imposed, Judges were ment Fischer Rus- strength scope evi- statute The requires. proportion-
the defendant and settled; ality Judge dence ... but ... similar cases review is Brecken- include[s] ridge’s concurring opinion, in in which imposed which a life sentence was Wolff, Deck, Judges joined Stith and Teitelman analysis.” 303 S.W.3d issue, 2010) (Stith, J., as to the proportionality established concur- law on governing this matter.15 ring). (Brecken- Anderson, 545-47 separate opinion Judge Fischer J., ridge, concurring part and concur- suggests legislature did that because result); (Wolff, ring J., Id. dis- at 551 565.035.3 change section onсe Stith senting) (Judges join and Teitelman Court, beginning began determin- dissent). in Judge Wolffs ing proportionality only in relation to cases imposed, in which it have event, death was must analysis In this Court’s But, agreed approach. with this as dis- governed by must be words of concurring clear, cussed in in the opinion detail statute. the statute When itself is *25 Deck, of Judge Stith in 303 at 555- speculate S.W.3d this not Court need as to what 63, the legislature change See, neither the legislature’s e.g., did the inaction means. 16-year during period statute from Hyde Housing P’ship Park v. Dir. Rev of 1993) enue, (Mo. 1978 until 1994 when this Court applied 850 84 S.W.2d banc (“Where require section language 565.035.3 that it consider is clear and unam which similar cases in either death or life biguous, is no there room for construc (ex- tion”). in prison parole imposed Instead, without were this ef give Court “must cept making change in 1984 that rein- fect plain meaning.” to [the statute’s] Louis, requirement forced the to consider both Home Builders Ass’n Greater St. of cases). types Wildwood, Id. of at 556. If there City was Inc. v. of (Mo. 2003). an error in Court not waiting this 239 attempt banc To to derive legislative reaction to its before meaning cases the legislature from what did not statute, changing interpretation of its conjecture do is an in exercise that in this it occurred in when this Court sub entirely unnecessary. case is in began considering silencio cases As set out in detail in the separate opin- which imprisonment imposed, life was Deck, ion of in Judge Stith S.W.3d in Deck or in Anderson’s return to this (Stith, J., result), 555-63 concurring in sec- original jurisprudence. Court’s tion requires 565.035 that the Court “shall opinion The separate Judge of Fischer accumulate in the records of all cases suggests also there is signifi- some which the sentence of death or impris- life cance probation to the fact this is the first time onment parole without or wаs that an opinion “principal imposed” denominated the requires and that this con- Court opinion” interpreted re- has the statute as sider all “other similar cases” in determin- quiring ing consideration of cases in ei- which whether the sentence of death is exces- imprisonment ther death or life are im- sive or disproportionate light in of Anderson, posed. crime, majority But in of of strength defendant and the Deck, Court determined this is what As noted in evidence. Anderson, contrary minority probation imposed 15. In parole and of was —had scope proportionality Fischer, view—that the of review support only Judge Chief Justice is limited in to similar cases which the death Anderson, Judge Price and Russell. penalty thereby imposed, excluding was simi- (principal opinion). S.W.3d at 544 possibility lar life cases which without the Sidebottom, (Stith, J., concurring re- S.W.2d at 559 1988). sult), require pointless it would be the records of cases to accumulate
Court IV. CONCLUSION imposed imprisonment life
in which them to one side and just put so it could unanimously that The Court concludes considering propor- when not look at them imposed dispro- the sentence here was not only purpose for which the tionality evidence, portionate strength to the of the —the place. in the first cases were accumulated majori- the crime or the defendant and the types that, both ty Id. This Court considers concludes for the Court no opinion, here. reasons set out revers- cases judgment ible error occurred. The is af- researching both independently After to both guilt punishment. firmed as and cases, this is hard- and life death anything in the case law pressed to find BRECKENRIDGE, J., concurs; gruesomely and appalling similar FISCHER, J., in separate opinion concurs murder committed documented filed; PRICE, C.J., RUSSELL, J., unspeakable, Mr. This crime was Davis. FISCHER, opinion concur in J. calculating, cold and Davis’ conduct TEITELMAN, J., in part concurs overwhelming. Ms. guilt the evidence filed; part separate opinion dissents in sexually Spicer was beaten abused WOLFF, J., opinion concurs in *26 smothered to being before repeatedly TEITELMAN, J. girlfriend Davis and his for by leath Mr. Many of these gratification.
heir sexual FISCHER, Judge, concurring. ZEL M. events, Spicer’s of Ms. including point principal opinion except I concur in the leath, by videotape recorded on were I con- proportionality analysis. as to the Davishimself. propor- capital cur that Davis’ sentence is A of simi- comparison tional to his crimes. has affirmed sentences
This Court
penalty
lar cases in which the death
jury
leath where the
finds the defendant
propor-
imposed shows Davis’ sentence
depraved
strangling
mind in
cted with
in
or
imposed
and not
a freakish
tional
smothering
r
the victim to death after
See,
State v.
e.g.,
manner.
wanton
sodomizing
attempting
or
laping or
(Mo.
257
banc
McLaughlin, 265 S.W.3d
the victim. State v.
ape or sodomize
2008) (a
murder,
degree
conviction of first
(Mo.
banc
902 S.W.2d
283
Brown,
action);
v.
rape and armed criminal
State
1995);
Mercer,
618
3-4
State v.
S.W.2d
(Mo.
2000) (a
Link, 25
136
banc
S.W.3d
1981).
penalty
Mo. banc
The death
has
murder, kidnap-
degree
conviction of first
in
many
in
cases which the
imposed
|een
Kreutzer,
rape);
State v.
ping
forcible
in the
murdered a victim
defendanthas
(a
(Mo.
1996)
banc
convic-
tigation of witnesses potential wit-
knowledge as what difficult, if not It be know. would
nesses state, at the out-
impossible, for Davis to
set, spe- demonstrating facts particular investigator. The difficul- need for
cific compounded by task was
ty of this im- incorrectly statements
trial court’s
plied self-representa- that if elected
tion, him to funding no there be
investigate his case. context, there substantial
In knowingly and to whether Davis
doubt as Sixth Amendment
voluntarily waived his self-representation. Davis should
right to exercise opportunity the full given re- rights. I would
his Sixth Amendment remand.
verse and Respondent, Missouri,
STATE DORSEY, Joseph Appellant.
Brian
No. SC 89833. Missouri,
Supreme
En Banc.
July 2010. Aug.
Rehearing Denied