*1 will possibility him.6 The diminish the defendant communicating with perts had Lyons testimony exaggerate also of symptoms characterized fabricate or family himself, loner, to kept who someone punishment. retardation to avoid mental withdrawn, unwilling to en- quiet, Lyons presented that and the The records smile, and except to in conversations gage for the testimony received are sufficient get by having to nauseated who became Lyons’ master to conclude that conditions noted The evidence also ready for school. they were not a recent fabrication and read, write, inability spell. to or Lyons’ attaining prior Lyons documented to years age. of functional aca respect to With demics, the limited the master noted Conclusion They only failing records. indicated school issues writ permanent This Court its Lyons was grades incomplete prohibit Lyons’ to execu- of mandamus grade 10th for three consecutive in the addition, tion. In will recall placed Test years. His Iowa Basic Skills Lyons, mandate in set aside its last The percent. bottom two Lyons as to his es- Lyons’ sentence Lyons was evidence indicated family Lyons tranged girlfriend, and resentence and was “slow” education classes special imprisonment that offense to life for reading and mathematics. parole, eligibility probation, without supports foregoing evidence governor. except or release act of the of continu- finding conclusion and master’s and limitations related deficits al extensive All concur. adaptive related or more behaviors in two intellectual subaverage significantly his to
functioning.7 And Docu- Being Conditions Manifested Age 18
mented Before concluded that
Finally, the master and doc were manifested
these conditions Although years age. umented before Missouri, Respondent, STATE evidence, earlier, as noted there is before manifested these conditions Lyons DECK, Appellant. L. there was insuf Carman the state contends age conditions. of these ficient documentation No. 89830. SC the lack of vigorously notes The state Missouri, prior age from 18 and Court of IQ Supreme result test evidence records and other En school Banc. scant behaviors. respect adaptive with Jan. 2010. fact, Documentation, any as with other March 2010. Rehearing Denied reaching his conclu- proof. matter of sion, make rea- master was entitled to A from the evidence. inferences
sonable is to requiring documentation
purpose significant deficits also noted delayed than two 7. The master Lyons' trial was for more skills, and living, of home social the behaviors compe- finding years of a he was not because they were not sufficient but found leisure to stand trial. tent requirements. the statute’s meet *6 Percival,
Rosemary E. Office of the Pub- Defender, lic City, Kansas for appellant. Koster, General, Atty. Chris Evan J. Buchheim, Zoellner, Kevin Office of Mis- General, souri Atty. City, Jefferson for respondent. FISCHER, Judge.
ZEL M.
I.
Introduction and Procedural
History
February
found Carman
guilty
of two counts of first-degree
murder,
of
two
armed
counts
criminal ac-
tion, one
first-degree
count
robbery
of
and
one count
first-degree
burglary for the
1996 robbery
shooting
deaths of
James and
Long.
Zelma
He was sentenced
to two death sentences. This Court af-
firmed those convictions and sentences in
(Mo.
Deck,
State v.
994
527
S.W.2d
banc
1999) (“Deck I
Deck filed a motion for
’’X1
1. A
regarding
full
of the
recitation
facts
Deck's conviction is available at Deck I.
Analysis
to Rule
pursuant
relief
post-conviction
the circuit
29.15,
overruled
which was
previously
This
has
indicated that
Court
reversed
appeal,
court. On
Court
premised
trial error
on a constitutional
findings
but affirmed
death sentences
imposi-
directly affecting
violation not
State,
Deck v.
guilt
his convictions.
for
statutory
death penalty
tion of the
scheme
2002) (“Deck
(Mo.
banc
not result
application
does
section
was,
”).
retrial, he
penalty-phase
II
At the
Whitfield,
See
v.
565.040.2.
to two death sentences.
again, sentenced
affirmed
death sentences
This Court
565.040.2
that when a
provides
Section
Deck,
After all of Whitfield’s cited separate opinion, cases claims of were ex- ineffective assistance a which new trial ordered was because hausted, Supreme States Court the United unrelated of of trial error constitutional Arizona, Ring decided 536 U.S. Here, discussed, dimension. it is the S.Ct. L.Ed.2d entry very of the death sentence that is (2002), capital and held defendants unconstitutional, to be held since made right had a under the Sixth Amendment to very without the jury findings required jury any determination of fact that in- imposition penalty un- punishment, creases their maximum law, der Missouri and hence the finding any statutory included ag- remedy imposition is to order gravating Whitfield, circumstances. penalty proper life sentence. judge, 256. Because the not the —a jury, factual findings made the and sen- Id. at 272 n. 23. death, tenced to Whitfield this Court held This construction of section 565.040.2 that the sentence of death was unconstitu- amplified by was dissent Whitfield:
tionally imposed. Id. 565.040,however, Section does not apply applied This Court then section error, to situations of procedural mere 565.040.2 and sentenced Whitfield to life if such even error is rooted in constitu- First, imprisonment parole. principles. plain without Id. This tional words applied application held that section of the statute limit its 565.040.2 to entry because the events which the death sentence “the death [in its totality] accomplished itself ... is through appli- held to be unconstitution- al” which “any cation of an im- procedure unconstitutional un- sentence posed particular [as to a chapter der ... offender] 565 because the trial court Second, to be held unconstitutional”. findings made that the Sixth Amendment policy there is no required reason mandate make. Id. at 270. In particular remedy more extreme when a reaching holding, this Court noted lesser, more remedy, moderate is suffi- alleged allowing judge error — guard cient to procedural rights making determine the facts Whitfield the offender. eligible death penalty for the *8 —was error, “some trial very unrelated but the (alteration (Price, Id. at 274 dissenting) J. entry judgment of a of death on based the in original).
judge’s findings” violation Ring, This observation is consistent with the which made the death un- sentence itself legislative intent passage behind the constitutional. Id. at 270 n. 20. section 565.040.2. The dissent even went 565.040.2,
In applying section this Court on out point the cases in several which Whitfield, stressed that the situation in in this Court had that although concluded a entry of the death sentence it- imposed, sentence had been a re- self was imposed unconstitutional or under a mand for retrial of phase scheme, statutory unconstitutional was proceeding was appropriate remedy distinguishable from a case such as the premised for a trial error on a constitu- case at bar in which a new trial is ordered tional violation. Id.
535 pre- their views would of determines whether put application on the limitation The 565.040.2, substantially impair perform- in both the as articulated vent or their section dissenting opinions Whit- majority and jurors (including ability as ance harmony legis- with the field, perfect is instructions on the burden of follow history behind its enact- intent and lative proof).” Id.
ment.
Accordingly, great
a
deal of def
case,
Deck is not entitled
In this
trial
erence is owed to the
court’s determi
because
by
allowed
section 565.040.2
relief
juror
prospective
nation that a
is substan
recognized by
the reversible error
Brown,
tially impaired.
v.
551
Uttecht
Supreme Court —Deck’s
United States
1, 7,
2218,
127
III.
for cause constitutes an
tion to excuse
Removal for Cause
“Deference to
implicit finding of bias.” Id.
his
the trial court violated
Deck asserts
it
appropriate
the trial court is
because
is
by
impartial
a fair and
right to a trial
in a
to assess the demeanor of the
position
sustaining
and abused its discretion
venire,
compose
of the individuals who
motions,
objections, to
over his
State’s
it,
importance
of critical
assess
a factor
cause
potential
jurors for
strike certain
ing
qualifications
poten
the attitude and
reluctance to serve as the
based on their
9,
jurors.”
tial
Id. at
head.
I’ll take that as a no.
Ladyman]:
just
I’m
[Veniremember
held in Smith that
This Court
signing
I ain’t
it.
I don’t want to
saying
statement
unequivocal
a veniremember’s
be the—
sign
a death
that he or she could
you
ask
for the trial
provide
Let me
can
basis
[Defense Counsel]:
verdict
you
about that. You talked about
to remove
court to sustain motion
verdict form.
sign
would not
for cause. 32 S.W.3d
veniremember
question,
veniremembers in
544. Both
Ladyman]: Right.
[Veniremember
*11
case,
they
sign
that
could not
stated
Standard
Review
juror’s
A prospective
death verdict.
reluc-
The trial court is vested with
sign
tance or refusal to
a death verdict
broad discretion to exclude or admit evi
may
be considered
the trial court but
dence and to
closing arguments.
control
need not
The
be conclusive.
reluctance or
Baumruk,
State v.
may
refusal
be
among
considered
other
Forrest,
2009);
State v.
facts and
including the
circumstances—
Fur
judge’s observation of the veniremember—
thermore,
relief,
to be
appel
entitled to
an
deciding
juror
whether a prospective
lant must show an
prejudicial
error was so
should be struck for cause.
that
deprived
he or she was
of a fair trial.
case,
just
In this
it
not
simple
Baumruk,
539 specific argument go- notice of the that is Overruled. Court]: [The ing to be made based on disclosures. Attorney]: He knows how [Prosecuting helping people that were escape, to Deck’s reliance on Simmons is mis- you I need to of their lives. for the rest Simmons, In the placed. United States you protect I need to sheepdog. be the Supreme process Court found that the due him guard have to guards that will clause does not allow the execution of a I injure them. need so that he doesn’t person on the basis information that he protect and even you sheepdog to be a opportunity explain deny. had no to or other, But I more vulnerable inmates. 163-64, 512 114 2187. The U.S. S.Ct. society our to be the you need held that a who Supreme Court defendant sheepdog. to was sentenced death and whose future 565.005.1(1) requires par- Section an dangerousness was made issue ties, before trial be- at a reasonable time it process pre- State was denied due when of all provide each other with list gins, him providing mitigating vented from evi- mitigating or circumstances aggravating argument during penalty dence or prove at the party intends Id. The case before this phase of trial. requires of trial. Rule 25.03 penalty phase distinguishable. is There is no evi- State, request, on written to disclose prevented dence that Deck was from mak- information. certain materials and ing any mitigating argument. It from the record that the State is clear Furthermore, the State’s disclosure that it intended to make provided notice Deck on notice that the State was placed convic- arguments based on Deck’s 1985 likely argue dangerousness. his future argument does not articulate tion. Deck’s Bucklew, State v. 565.005.1 any specific violation of section 1998), argued Bucklew and, fact, his brief con- or Rule 25.03 plainly permitting court erred in trial trial, pro- cedes notice: “Before arguments aggra- on State to make based
vided Deck notice that it would offer evi- vating because the State circumstances convictions, including a prior dence of his aggravating failed to disclose circum- aiding escape.” conviction for him it give and failed to notice stances
Instead, failure argues the State’s argue dangerousness his future would argue it intended to his give notice This Court based on those circumstances. previous bad dangerousness future claim, rejected finding that the State his section 565.005.1 prison conduct violated statutory and given Bucklew notice of had process and Rule 25.03 as well as his due circumstances. non-statutory aggravating Carolina, v. South Simmons rights under Id. This Court also found that Bucklew 129 L.Ed.2d U.S. S.Ct. arguments, based had notice State’s (1994). aggravating circum- on its disclosure stances: 565.005.1 and Rule 25.03 Section may argue inferences from state [T]he notice require provide
do not the State to to infer that evidence. It is reasonable it to make. arguments plans Section jail escaped from while person who requires aggrava disclosure of 565.005.1 degree murder trial and awaiting a first that ei ting mitigating circumstances long criminal record would who has a prove intends to at the party ther allega- well. not suffer confinement requires disclo phase of trial. Rule 25.03 in the state’s dis- of fact contained sure, evi tions request, types on of certain used language the state requires closures and the information. Neither dence or (“anti-social criminal history”) pro- about told these wonderful people. And vided Bucklew with sufficient notice of you know question they’re gonna argue the state’s intent to future dan- ask, well, they’re gonna say where are gerousness. they They’re gonna now? have to be *13 Id. told about they’re this. And then gonna ask question, question another and Allegedly Improper V. Point Four: get I to unfortunately sometimes some— Closing Arguments explain justice is you was done? When multiple Deck makes claims related to there, go up you’ll justice tell us if is closing argument. They the State’s in- done. I’m gonna Now sit down and wait allegedly improper appeals clude: to the your answer, for I so can tell them. jury, allegedly improper personalization, misstatements of facts and the fu- State’s Standard of Review dangerousness ture argument. Allegedly improper appeals
1.
to the
The trial court maintains broad discre-
jury
tion in controlling closing arguments.
Edwards,
State v.
116 S.W.3d
alleges
portion
Deck
this
closing
(Mo.
2003).
banc
Closing arguments must
argument
improper personalization:
was
be examined in the context of the entire
[Prosecuting Attorney]:
thing
The last
Here,
record.
Id.
Deck’s claim of improp-
gonna
you
say
you
I’m
tell
and
to
is this:
personalization
er
preserved
was
and will
job
I—I’ve
long enough,
done this
and
be reviewed for abuse of discretion—
this isn’t about me—but I’ve done this
occasion,
whether a defendant
long enough
prejudiced
that on
to
years
five
gone—
after a case like this has
extent that there is a
probabili-
reasonable
ty that
the outcome at trial
Objection;
[Defense
would have
vouching,
Counsel]:
personalization.
been different if the error had not been
III,
488;
committed. Deck
136 S.W.3d at
[The Court]: Sustained.
I,
Deck
get phone call later on from family member, they’ll say— Analysis Objection; [Defense Counsel]: rele- argument This did not consti vance, objection. same tute improper personalization. Improper [The Overruled. Court]: personalization is established when the [Prosecuting Attorney]: they’ll say And suggests that a defendant poses a me, to my to granddaughter, I’ve told personal danger jurors to the or their fam my them about loved one that was mur- Basile, ilies. State v. 942 S.W.2d They dered. they want to know want — “Arguing jurors for to what happened. you explain Can it to place themselves in party the shoes of a them. grandchildren. There are 19 victim is improper personalization that can great-grandchildren, I don’t know only jury.” arouse fear State v. many how more there’ll be. And some Williams, day people going these are to be told 2003) (internal omitted). quotations about James Long. and Zelma And record here shows that the State did not they’re gonna be told about what won- imply any were, danger jurors derful to the parents they or ask the they how liked jurors place to fish. How their got Grandmother themselves in the her victims’ masters taught. They’re gonna be shoes. death); I, impose did not Deck personaliza- improper to his addition to tack on attempts Deck argument, (telling only way
tion at 543-44 claim, argument this alleging an additional they justice mercy impose could and show sympa- improper appeal constituted people the courtroom was to jurors to consider thy and that it asked death). impose reach of the record to matters outside Allegedly improper personaliza- this additional their verdict. Because tion trial, it objection from his claim differs review and is preserved appellate alleges closing argu error review. State plain entitled improper personalization: ment was *14 (Mo. Driver, 52, banc 912 S.W.2d 54 v. three, depravity Fourth —or of mind. Is 1995). depraved this the act of a mind? And argument goes was an a little bit further Deck claims this instruction akin to the sympathy to improper appeal you than But it this. tells what de- State, v. 777 So.2d argument Sheppard praved mind this situation means. (Miss.2000), 659, the prosecutor where 661 people helpless But he rendered these they acquit, that if voted to jury told the I before he killed them. And would ask him and ex want them to call he would you laying to think about this: on a bed defense wit why they found the plain rendered gunpoint, ten minutes credible, it explain so he could to nesses you helpless. Mississippi Su family. the victim’s The re argument found that preme Court Review Standard of was to purpose error because its versible objection No was made to this jurors make them believe inflame the Therefore, argument. only this claim is they personally held accountable would be plain error review. State v. entitled to Id. at 661-62. for their verdict. (Mo. Johnson, 561, 284 S.W.3d 573 banc argument in this case is closing The 2009). rarely appro Plain error relief Sheppard that in be- distinguishable from involving closing argu claims priate for attorney did not tell prosecuting cause the object is ments because the decision to family would jurors that the victims’ strategy. Id. often a matter of trial Clos accountable, attempt nor did he hold them in the ing arguments must be examined improper appeal sympathy. to to make Id. context of the entire record. Under fact, in this case is closing argument In review, a conviction will be plain error argument upheld by this closer to the closing argument improper reversed for 702, 142 Strong, in State v. S.W.3d Court argu it that the when is established (Mo. 2004), 726-27 banc where State effect on the outcome ment had decisive family in the court- argued that members injus to manifest of the trial and amounts im- and described the room were victims Middleton, 443, tice. v. 995 S.W.2d State pact the crime had on them. 1999). (Mo. prove The burden to 456 banc This Court has found statements State v. appellant. decisive effect is on the stronger than those made here were (Mo. Parker, banc 856 S.W.2d 333 See, Strong, 142 plain e.g., error. S.W.3d 1993). jurors (telling at 727-28 the defendant justice” if death were not “escape would Analysis imposed); Ringo, 30 S.W.3d v. Sto (Mo. 2000) argument Deck’s relies on State (telling jurors they 821 banc (Mo. 1995), and 886 banc they rey, if rewarding would be the defendant Rhodes, State v. argument distinguishable S.W.2d here is from in Storey those made and Rhodes. case, any was not asked Storey argued: The State in place manner itself the victims’ shoes. just Try Think for this moment. put This Court has denied similar claims in yourselves Frey’s place. you in Jill Can See, Smith, e.g., other cases. State v. And, then, imagine? then —and to have Roberts, 1997); S.W.2d your yanked head back its hair and at 594-95. to feel the of that slicing blade knife 3. Misstatement of flesh, facts through your your severing vocal cords, terror, wanting to scream out in Deck contends the State made argu- two being but not able to. Trying prejudicially ments that misstated the breathe, being but not able to for the facts of the complaint case. Deck’s lies blood pouring your esopha- down into with the following arguments two related gus. to his 1985 aiding escape: conviction for Id. at 901. thing The next we have to do is to
This held argument you the State’s evidence, *15 convince that all this bad improper undeniably prejudicial was and the aggravating evidence in this case because graphically detailing the crime as warrants a death sentence. It does. jurors if the were in place the victim’s You can consider all prior escapes. his only could jury. serve to arouse fear in the
Id. escape, He knows how to helping people Rhodes, argued: the State for the rest of their lives. I you need to be the sheepdog. I need
Try, just try taking your during wrists you protect guards to that will have crossing deliberations and lay them and him guard to so that (demon- injure he doesn’t down and see how that feels you them. I need to be a sheepdog and strating). your Imagine hands are tied other, protect even more vulnerable in- up.... And gentlemen, ladies and mates. floor, you’re that, you’re on the like your back,
with
your
hands behind
Standard of Review
guy
you.
this
beating
is
Your nose is
Every
breath,
broken.
you
time
take a
objection
No
was
argu-
made to either
your broken rib
finally,
hurts. And
af- ment; therefore, they will be reviewed for
you’re
face,
ter
your
back over on
he
error,
plain
which is
only
established
when
pulls
comes over and he
your head back
argument
has a decisive effect on the
snaps your
so hard it
neck.... Hold
outcome of the trial amounting to a mani-
your
long
you
breath. For as
can.
injustice.
Johnson,
fest
284
at
S.W.3d
Hold it for 30 seconds.
Imagine it’s 573; Middleton,
Analysis confessions, therefore, permissible, following Supreme unsuccessfully Deck raised this same is- United State’s I, Ohio, appeal. Terry sue in his first direct Deck decisions in v. 392 See Court’s
545
1868,
1,
analysis
88 S.Ct.
This factual difference in Officer at 162. testimony hap- of an event that Wood’s
pened ago more than a decade does not Analysis injustice establish manifest or constitute substantially facts on Supp. *19 the fail- sentence of court’s purposes, you should be aware that a jury give gave ure to instructions the these degree conviction of murder in the first steps that certain in the automatically impression does not false make the defen- dant eligible penalty. process important. for the death Be- deliberation were more case, guilt phase In this modifications would have re- moved references to the of trial. injustice doubt, Deck suffered no manifest from sonable jury the must unani- (2) read oral on; the failure to instruction mously agree jury the must then because the information that would have also determine whether the aggravating conveyed by been to the veniremembers circumstances as a justified whole a death provided. the instruction was otherwise (3) sentence; jurors the must also Immediately jury panel after the was conclude that the aggravating circum- sworn, trial court opening the read the outweigh any stances mitigating circum- panel, part instruction to the of which stat- stances. ed: All jury panels the were juror told that a that, you The instructs in to order is never required to vote for death and you consider penalty, the death must that the failure to unanimously make the statutory aggravating find one or more required findings would automatically re- beyond circumstances a reasonable sult a sentence of imprisonment life causing you doubt. The burden of without parole. Throughout this entire statutory aggravating find the circum- process, phrases unfamiliar concepts beyond stances a reasonable doubt is lay people, including statutory aggrava- upon the State. ting circumstances, and mitigating were Later, dire, during attorney voir Deck’s explained easy-to-understand language. jury told the that “this panel capítol only circumstance covered MAI- panel case” and that [sic] members 300.03A, CR 3d but not covered specifical- would be asked about the “issue court or counsel in the form of an oral ly of in prison possibility life without the instruction, statement or was the issue of alternative, parole penal- or the the death mental retardation. Because mental re- ty.” attorney jury Deck’s also told the case, tardation was not an issue in this no they “talk panel would about the issue of prejudice results from this omission. Oth- and ... in prison life erwise, the information contained in the dire, parole.” general without After voir conveyed instruction jury by was the trial jury panel they court told the attorneys or the court qualifi- before death questioned would be panels smaller Therefore, began. cation trial court’s about their “attitudes regarding pun- failure to read MAI-CR 3d 300.03A did ishments that are available in this case.” in plain not result error. jury panel ques-
When each small
was
Other cases before
have
this Court
tioned, its
were
per-
members
told that a
reached a similar conclusion—the failure
son must first be convicted of first-degree
mandatory
to read a
instruction did not
murder before a death sentence can be
if
plain
jury
result
error
was other-
considered and that Deck
previously
had
See,
conveyed
wise
e.g.,
been convicted of two
information.
counts of first-de-
(failure
Williams,
gree murder. Each
jury panel
give
small
was
a death sentence can be considered: argues the trial prove statutory State must at least one court erred aggravating beyond circumstance submitting rea- instructions 8 and 13 to the *20 appellant’s argument that
jury.
mitigating
contends these instructions did
the
He
jury
that the State bore the
not inform
“improperly
evidence instruction
shifts the
aggravating circum-
proving
burden of
proof
rejected by
burden of
has been
beyond
stances
a reasonable doubt
Supreme
United States
Kansas
[in
outweigh mitiga-
had to
aggravation
that
Marsh,
163, 170-71,
v.
548 U.S.
126 S.Ct.
tion,
thereby preventing
giv-
from
(2006)]
2516,
Deck concedes this previously Court has 28.02(c). (“MAI pre- Id. instructions are argument rejected addressed this it. Johnson, (The and, See sumptively applicable, 588-89 valid when challenge point. 4. Deck’s to instructions 8 and 13 seventh formed the basis for his claim raised in his *21 Statutory given to the exclusion of other X. Point Nine: Aggravating must be instructions”). Circumstances Not Pleaded in the
Information Analysis alleges Deck the trial court erred in sentencing him to death because the State conference, During the instructions plead failed to statutory aggravating cir- 3, 7, 8, objected Deck to instructions cumstances the information. patterned and 13. Instruction 3 was after The State’s amended information did not MAI-CR 3d 313.30A and instructed the allege statutory aggravating circum- jury that the burden is on the to State stances the State prove. intended to Prior prove statutory aggravating circumstances trial, 565.005.1, to pursuant to section beyond a reasonable doubt. Instructions 7 provided written notice to Deck of 12, patterned after MAI-CR 3d statutory aggravating it circumstances 313.41A, jury instructed the that if it had would attempt prove to at trial. aggravating determined that one or more existed, trial, circumstances it con- was next to Before Deck filed a motion to information, quash sider whether the facts and circumstances require to the State aggravation of a to punishment statutory taken as include aggravating circum- whole imposing preclude were sufficient to warrant stances the information or to seeking a sentence of death. 8 and State from penalty Instructions 313.44A, grounds on constitutional patterned after MAI-CR 3d due to the State’s failure to include the jury statutory ag- instructed the that if it had found that gravating circumstances the informa- aggravation the facts and circumstances in tion. The trial court punishment overruled this mo- taken as whole warranted sentence, tion. a death it if must then determine
there were facts or in miti- circumstances Analysis
gation
punishment
outweigh
sufficient to
aggravation
punishment. They
those in
Deck raised an identical
claim
jurors
then
they
instructed
did not
III,
rejected:
which this Court
facts,
agree mitigating
have to
on
but
This
has
nu-
addressed this claim
if
juror
mitigat-
each
determined that the
merous times before. The omission of
ing
outweighed
evidence
the aggravating
statutory aggravators from an indict-
evidence,
must return a sentence
charging
ment
the defendant with first
prison
parole.
of life in
without
degree
deprive
murder does not
the sen-
tencing
jurisdiction
impose
court of
Deck concedes this
previously
Court has
penalty.
statutory
Missouri’s
argument
rejected
addressed
it.
recognizes
single
scheme
offense
Johnson,
(hold-
See
Furthermore, supports jury’s finding The evidence the this Court has consistent See, e.g., statutory ly rejected argument. beyond this John a reasonable doubt of six 589; Baumruk, son, fact, at 280 aggravating ju- 284 S.W.3d all three factors. Zink, 617-18; at 74- thirty-six jurors S.W.3d at found the ries— —have point offers no 75. Deck concedes this and same six factors: why should meritorious reason this Court (1) Each murder was committed while holdings reconsider its in those cases. in engaged the defendant was the com- homicide, mission of another unlawful Proportionality XI. Point Ten: 565.032.2(2). § Review (2) The murders were committed for the of review Standard purpose receiving money any of or other 565.032.2(4). value, § thing monetary of independently reviews This Court Deck’s death sentences under section (3) outrageously The murders 565.035, RSMo 2000. This Court must vile, horrible, in wantonly and inhuman determine: mind, they depravity involved
(1) 565.032.2(7). § the sentence of death was Whether imposed passion, under the influence of (4) The murders were committed for the factor; prejudice, any arbitrary or other arrest, purpose avoiding a lawful 565.032.2(10). § (2) supports Whether the evidence the (5) The while murders were committed jury’s statutory or judge’s finding of in engaged perpetra- defendant was aggravating circumstance as enumerat- 565.032.2(11). § burglary, tion of in 2 ed subsection of section 565.032 and (6) The murders were committed while found; any other circumstance engaged perpetra- defendant was (3) Whether the sentence of death is 565.032.2(11). robbery, § tion or disproportionate pen- excessive Moreover, in previous appeals, both cases, alty imposed similar consider- that, held from its of the Court review crime, ing strength both the of the record, “amply supports the evidence evidence, and the defendant. statutory aggravators by jury.” found Section 565.035.3. I, 545; III, Deck 994 S.W.2d at Deck 136 proportionality This Court’s re S.W.3d 489-90. designed prevent view is freakish and 3.Proportionality application penalty. wanton of the death argues apply this Court should Ramsey, State v. same de novo review—based on the Eighth prohibition against Amendment’s prejudice 1. Influence of excessive fines—utilized the United separate juries thirty-six jurors Three — Indus., Supreme Cooper States viewing essentially the same evi- all— Inc., Inc. v. Group Leatherman Tool unanimously dence have concluded that 424, 436, U.S. S.Ct. 149 L.Ed.2d appropriate is the sentence for (2001), the constitutional va- review Nothing suggests Deck. in the record lidity jury’s punitive of a award of dam- Deck has been sentenced under the influ- This ages. argument supported is not prejudice, passion, any ence of other precedent Supreme States United improper factor. Court and this Court and will not be Aggravating adopted. factors proportionality any
This Court’s re member of this Court in seventeen “designed by legislature years. view safeguard against arbitrary an additional gist concurring opinion, sentencing capricious promote and to was not argument articulated Deck’s evenhanded, rational and consistent brief, is that because section 565.035.6 re- *23 imposition Ramsey, of death sentences.” quires the appointed assistant to accumu- 328; 864 S.W.2d at section 565.035. This late the records of all cases which the and, simply Court reviews the sentence sentence of imprisonment death or life giving
while due deference to the factual probation without or parole was imposed, below, determinations reached decides legislature then the must have intended disproportionate whether the sentence is that proportionality this Court’s review re- as a matter of law. quire comparisons of cafees where both a death sentence and a life sentence
Deck also claims without proportion- this Court’s probation and parole imposed. ality fatally review is flawed it because only considers cases in which death was That is not the case. Section 565.035.5 imposed factually instead of all similar simply states that this Court’s “decision argument repeatedly cases. This has been [makes] reference to those similar cases See, Johnson, rejected by this e.g., Court. which it took into consideration.” Section 50-51; Smith, at S.W.3d 32 S.W.3d at provides 565.035.6 that the assistant to this 559; v. Clay, State 146 Court shall provide whatever in- extracted Deck does not base this formation the respect Court desires with argument statutory on the language of sec- to the it information collects. Finally, that tion and 565.035 offers no meritorious rea- provides section that the Court shall deter- why son this Court should reconsider its mine what staff and methods are neces- holding in those cases. sary to compile “such data as are deemed supreme the court appropriate to be concurring opinion
The Judge and statutory questions relevant to the Stith contends that this in- Court has concerning validity the of the sentence.” correctly proportionality conducted re- whole, Read as a provisions these demon- view beginning Ramsey. 1993 with legislature strate that the expressly left to concurring opinion The concedes this Court the determination of what cases Ramsey correctly held that the United Quite are similar. the simply, language of Supreme propor- States Court had held the statute relied concurring on tionality review constitutionally was not opinion merely nothing reflected more required. The issue in Ramsey that than methodology this was then concurring opinion disagrees with is using compile records and is still con- holding proportionality review 29.08(c).5 tained in Rule only requires review of similar cases resulted a death Further, sentence. This an additional response obvious holding in Ramsey was unanimous and concurring opinion’s statement of questioned has not been in any princi- was, legislature’s what the intention as it pal, issue, concurring, dissenting opinion by legislature relates to this is that the 29.08(c) imposition regardless Rule states: of sentence of the actually imposed. report sentence When there ais conviction for a crime for prescribed by punishment provided by which a shall be on a form this Court statute is death, judge report accompanied by any presen- shall file a in this shall be days investigation Court not report. later than ten after the final tence evidence, crime, strength aware of Court’s presumed to be defendant”). Ramsey. Ramsey
17-year-old decision
statutory
pro-
review
expressly stated
Furthermore,
opinions in
this Court’s
“merely pro-
for in section 565.035
vided
opin-
I and Deck III cite numerous
Deck
the freakish and
backstop against
vides
im-
penalty was
ions in which the death
penalty”
of the death
application
wanton
mul-
when “the defendant murdered
posed
of similar
consideration
requires
victims,
gain, or
pecuniary
acted for
tiple
im-
in which a death sentence was
cases
sought
when the defendant
eliminate
Ramsey, 864 S.W.2d
328.6
posed.
ar-
witnesses to avoid
lawful
possible
III,
n.
at 490
concerning
ap-
rest.”
The circumstances
811;
(citing Ringo, 30 S.W.3d at
imposing the death sen-
propriateness of
*24
(Mo.
83, 93
banc
Worthington, 8 S.W.3d
very
ongoing public
a
serious and
tence is
Middleton,
1999); State v.
to death for his role the murder of *25 Gilbert Id. at Williams. 334-35. Gilbert XII. Conclusion wife, planned by murder was his Williams’ reasons, For the foregoing the judgment Williams, Vicky by and executed five men. and of sentences death are affirmed. murder, In return Id. for the Vicky promised money Williams had and PRICE, C.J., RUSSELL, J., drug Mcllvoy participated connections. in concur; BRECKENRIDGE, J., in concurs the shooting murder Gilbert Williams in part separate and concurs result in five times. Id. at 335-36. filed; STITH, J., opinion concurs in result This proportionality Court’s review set separate filed; WOLFF, J., in opinion sentence, Mcllvoy’s finding aside death the STITH, J.; opinion concurs in of sentence excessive disproportionate J., TEITELMAN, only. concurs in result considering the crime and the defendant. BRECKENRIDGE, PATRICIA Judge, Id. at 341-42. The court Vicky noted that concurring in in part concurring Williams, the leader of kill plot the her result. husband, only was sentenced impris- to life IWhile concur with the principal opin- Moreover, onment. Id. at 341. the Court imposition ion’s conclusion that the Mcllvoy (81), noted that IQ had a low education, ninth-grade juvenile a minimal on Carman L. Deck in this that, murder, record and at the time of the dispropor- case was neither excessive nor Mcllvoy large tionate, was under the influence of agree I do not that the proportion- drugs amounts of alcohol and that further ality 565.035, review under section RSMo diminished his subnormal intellect. Id. The 2000, only requires factually review of sim- Court also found facts in that his favor he ilar cases that resulted in a death sen- turned dutifully himself and waited legislature’s tence. The directive in sec- police pick up St. Louis officers to him in compiled tion 565.035.6 that records be of Dallas, Texas. Id. at 341-42. “all cases which the sentence of death or imprisonment probation pa- life or without comparable claims his case is he, imposed” clearly role Mcllvoy Mcllvoy, because like was communicates confess- ed to the comparison factually crimes. Such a is its intent that similar cases with firmly principle I am committed consid- imprisonment of life be
sentences but, The being in the review. issue proportionality ered of stare decisis where the granted this Court legislature fact that the death, impor- is life or it is more addressed information discretion to determine what erroneous decision prior tant to correct types of cases is relevant from those two propor- and to undertake the of the Court proportionali- mandated conducting tionality it intended review as is intent that ty does not indicate its review legislature. only limit the review to the Court should separately Judge I write from Stith be- I death-penalty-imposed cases. believe criticism of the cause of her additional that, law, a matter of this Court does pro- that the principal opinion’s statement from have the discretion to eliminate in section 565.035.3 is portionality review all proportionality review cases only to consider intended for this Court jury imposes the sentence life imposition penal- whether the of the death possibility without imprisonment ty application a “freakish or wanton was probation parole. penalty.” notes that She that principal opinion states language “freakish or wanton” came from Ramsey, holding Ramsey and not from the statute. While 1993), proportionality language such is not found section only requires review review similar 565.035, principal opinion I think the is sentence, in a death cases resulted language correct of section gone unquestioned unanimous and has supports pro- 565.035.3 the conclusion that years. for 17 by any member of this Court portionality review is intended for this Ramsey decision was unani- While the im- identify Court to and correct mous, noteworthy it that the over- I position of aberrant death sentences. do prior case law sub silentio and turned *26 adopted proportionali- its new standard of that requiring not read the statute as the ty any analysis or discus- review without by substituting act a super-juror language sion of the of section 565.035. judgment its of the appropriate punish- See, Mallett, e.g., State v. for that of the trial ment the 1987) (“The (Mo. banc issue when 542-43 principal opinion court. the would While determining proportionality the of a death by utilizing be served better the statute’s any sentence is not whether similar case review, discussing terms when its its use of jury imposed can be found in which the language the “freakish or wanton” does sentence, life rather whether the death but applying not indicate the Court is incor- disproportionate excessive or sentence is re- undertaking rect standard or not the whole.”). in as a I light of ‘similar cases’ required view section 565.035.3. that persuaded legisla- also am not the Although principal opinion applied respond Ramsey ture’s failure to to the conducting an erroneous standard in its interpreted ap- as its decision should be review, proportionality including a review recent- proval of decision. This Court jury imposed the similar cases where the “An ly questioned has such a conclusion: imprisonment sentence of life without judicial interpretation incorrect of a stat- does not possibility probation parole or may simply ute because the also stand that Mr. change this Court’s conclusion it. legislature paid has no attention to Judge to relief. As Deck is entitled Thus, speculative legislative it is to infer in opinion demonstrates her concur- Stith approval legislative from inaction.” Med. result, Int’l, Revenue, ring in the consideration of cases Inc. v. Dir. Shoppe imprisonment of life was where sentence imposed change finding would not is not disproportionate.” Id.
Mr. Deck’s sentence not dispropor- was S.Ct. 2909.
tionate or to the im- excessive sentences Gregg, reliance on legisla- Missouri’s in posed Accordingly, similar cases. I con- ture re-enacted the death penalty in 1977. cur in principal the result reached § 565.001 seq., et Supp.1977. RSMo Sec- in opinion proportionality its review and tion 565.008.1 persons made convicted of concur in the remainder opinion. of the capital eligible murder for pos- one of two sible sentences —either death or life STITH,
LAURA DENVIR Judge, prison without eligibility probation or concurring in the result. parole years. for 50 Section 565.014 also I concur the result of the principal right noted a appeal of direct to this Court opinion respectfully disagree but with that in all cases which the was portion opinion holding that propor- imposed required in all such tionality review under section 565.035.3 cases: requires RSMo 2000 this Court to review other cases which the death penal- regard sentence, With to the
ty
imposed
was
under similar facts. Sec-
supreme court shall determine:
tion
requires
565.035
consideration of all
(1) Whether
the sentence of death
cases,”
“other similar
which includes those
imposed
under the influence of pas-
resulted,
in which a life sentence
in deter-
sion, prejudice
any
or
other arbitrary
mining whether the sentence of death is
factor; and
excessive or disproportionate
light
(2) Whether
supports
evidence
crime,
the defendant and the strength
jury’s
judge’s
finding of a statuto-
of the evidence. To the extent that this
ry aggravating circumstance ...
Court’s cases decided between 1994 and
(3)
present
otherwise,
suggest
they are
Whether the sentence of death is
contrary to the statute and to cases decid-
disproportionate
excessive or
ed under it from 1979 until 1993 and no
penalty imposed
cases,
in similar
con-
longer should be followed.
sidering both the crime and the defen-
dant.
/. HISTORY OF PROPORTIONALITY
565.014.3,
§
Supp.1977 (emphasis
RSMo
IN
REVIEW MISSOURI
*27
added).
199k,
A. Until
Review Was
Both
of
that,
legislature
required
Missouri’s
also
Imprisonment
Death and
Cases
Life
conducting
in
proportionality analysis,
153,
In
v.
Gregg Georgia, 428 U.S.
197-
“the supreme court shall
include in its
199,
2909,
(1976),
96 S.Ct.
The first
ap-
capital
purpose
murder....
anal-
proportionality
applied
this Court
penalty
of the death
is to
pellate review
legislature
by the Missouri
ysis required
the random or
against
serve “as a check
Mercer,
618 S.W.2d
was State v.
arbitrary imposition
penal-
of the death
that
was clear at
The Court
Georgia, 428 U.S.
ty.” Gregg v.
byit
these
duty imposed on
time that the
(1976).
It
Mercer, (emphasis at 11 add- propriateness of the sentence are those ed). judge jury first found in which the capital murder guilty the defendant
Indeed, controversy at that chose between death or also should time was whether the Court thereafter the possibili- without imprisonment consider cases which life fifty years. ty parole for at least might it have sought was not but which arguing added). sought, Judge been with Seiler (emphasis Id.
dissent that: legislature pro- modified the discharge
I that we our agree do not to add the re- portionality review statute 565.014.2(3)to deter- duty under section “the quirement this Court consider “(w)hether sentence of death is mine to the strength of the evidence” addition pen- to the disproportionate excessive or part crime and the defendant as a of its by re- alty imposed 565.035.3, in similar cases” § proportionality review. RSMo And, here, to cases in stricting our consideration it re- Supp.1983. importantly imprisonment and life instead of which both death vised section 565.035.6 so should stating and which the Court’s assistant were submitted *28 capital of “all This is accumulate the records appeal. have been affirmed on cases,” required the statute expressly It from scope. too limited in eliminates imprison- records of both death and life in consideration all cases which the state comparison ment cases be accumulated for in death all cases penalty, waived the in are similar purposes determining what given and imprisonment which life was cases, stating: taken, appeal capital pend- no all cases ing before us not as of that time accumulate the records [but The court shall imprisonment in life was all cases in which the sentence affirmed] which of of pro- without given, capital imprisonment all in which mur- death or cases life imposed was after parole [the found de- bation or charged der was but
557 penalty of the death compared defendant, on] reinstitution his crime 26,1977, May or such earlier date as the strength and the of the evidence to that in may appropriate. court deem other in cases which life imprisonment had been imposed, as well as those in 565.035.6, Supp.1983 (emphasis § RSMo added). imposed, had been in finding that the death sentence was not disproportion- proportionality review statute has ate.2 essentially remained in unchanged rele- since that time.1 too did respects vant So Six, Again, in 159, State v. approach proportionali- this Court’s (Mo. 1991), 169 banc this Court held that ty analysis for the next decade. In case purposes 565.035.3(3), § “for this Court case, after this Court considered other has capital examined those murder and facts, regardless cases with similar degree first murder cases in which death penalty imposed whether the was death or and the alternative sentence of life impris- imprisonment. life onment have been submitted to the jury instance, and the
For
v.
sentence has been
Lashley,
affirmed on
(Mo.
1984),
appeal.”
S.W.2d
banc
found that the
imposition of
penalty
the death
was not
B. Beginning
Ramsey,
with
this Court
record,
arbitrary
light
in
of the entire
after Strayed
Proper
From a
Application
comparing the case to
“lying
other
wait” Proportionality
Required by
Review
Sec-
cases which the choice of
imprison-
life
tion 565.035
penalty
ment or the death
was submitted.
Despite this long-settled interpretation
Id. at
Lashley
716.
cited to State v. Mc-
of what constituted similar cases under
Donald,
(Mo.
1983),
the death sentence
dispro-
because of its
imposition
tent
of death sentences.” Id. at
portionality,
capital
cases which the
328,
Harris,
citing Pulley
465 U.S.
choice of
imprisonment
death or life
with-
47-48,
(1984).
104 S.Ct.
51, 871. 104 S.Ct. (Mo. Richardson, 301, analysis that is re- however, of the kind 1996); State, Lyons banc v. 39 S.W.3d re- proportionality quired under Missouri’s (Mo. 32, 2001); banc State v. John- Nonetheless, without distin- view statute. (Mo. son, 24, 50-51 banc 207 S.W.3d any of this Court’s overruling guishing Barton, 693, 2006); above) v. 240 S.W.3d State (including those noted many cases (Mo. 709-11 banc re- review stating proportionality that prior capital all quires consideration of actually analyze the Few of these cases cases, a death sen- of whether regardless 565.035, however, or language of section rejected what Ramsey imposed, tence was analysis compare the this Court under- it should be argument it called by required takes to that the statute. cases” ex- “parsing through homicide Instead, they cite to the statement facts. 864 amining weighing different Ramsey purpose proportional- that the of said, Rather, it section S.W.2d at 327. ity protect against review is to the freak- “merely review proportionality 565.035 imposition ish or wanton of death sen- the freakish provides backstop against prior tence and then note that cases have application penal- of the death and wanton on facts so the imposed death similar case, whole, If taken as a is ty.... disproportionate. death sentence is not lacking circumstances consistent plainly Requires C. Section 565.035 Consider- cases in which the with those similar Imprison- ation Both Death and of Life then a penalty imposed, has been ment Cases at resentencing will be ordered.” Id. 328. permit Section 565.035 does this Ramsey briefly mentioned Although analysis to limit its to a determina- Court imposing a life sentence “had cases imposition penal- tion whether of the death found to differ in been examined” and wanton,” ty was “freakish or however. presence aggravating to the regard Ramsey, That language comes from which mitigating lack of circumstances and the the minimum that is *30 imposed tence is is not a listed factor. To which a life imposed sentence was reached contrary, stating wrong Rather, after that this Court the result. analysis is to list “those similar cases which it took simply incomplete is unless one also looks consideration,” 565.035.5, § into the stat- at cases in imprisonment which life result- ed, requires appoint ute that this Court and there is a risk that this lack of assistant to “accumulate the all complete analysis, case, records of in the rare may case in prevented which the sentence of death or have this Court from identifying life imprisonment probation parole without a case in which the was § imposed.” (emphasis was 565.035.6 add- disproportionate when considered ed). against similar cases as a whole. pointless Further,
It would be for section it is worthwhile to note that require 565.035.6 to this Court to accumu- Supreme United States Court Justice John Stevens, late records of cases in which life imprison- Paul in a statement respecting ment if imposed imprisonment is life cases petition denial of a for writ of certiora- — inherently are dissimilar to this ri -, Court’s in Walker v. Georgia, U.S. proportionality -, review under the statute. 454-55, 129 S.Ct. why interpreting (2008), That is the cases section L.Ed.2d 344 recently expressed predecessor prior 565.035 and its to Ram- concern Georgia’s about current failure to sey considered both death impris- and life consider in cases which a life sentence was cases, may onment imposed, both constitute stating that consideration of the “similar cases” under section 565.035.5 latter “judicious because, cases seems quite obviously, significant number of Although type proportionality this re- similar in cases which death was not im- statute, required by view is rather than posed might provide well the most relevant Eighth Amendment, duty is no less evidence of arbitrariness the sentence important. Cases in which a life sentence before the court.” imposed was should be included this proportionality analysis. Walker, Court’s That is argued defendant that say not to that large Georgia’s existence of a capital punishment scheme was number of cases which a death unconstitutionally sentence arbitrary because it imposed on similar may was facts failed to a meaningful proportion- be conduct persuasive more or that cases that ality did not review. Justice Stevens noted that compare the case before them to those in preserved properly; this issue was not suggest principal opinion it could be read to legisla- this is the 5. The notes that the undertake, changed only analysis has not this Court ture section 565.035 since must it Ramsey years ago was decided over 16 incomplete. quotes would be Edwards also approve Ramsey's therefore must decision portion requiring of the statute this Court not to consider similar cases that resulted ain to consider similar cases and to determine imprisonment. sentence of life I would note proportionate whether the sentence is to them legislature change that the also did not sec- crime, light the defendant and the during years tion 565.035 than more evidence, strength of the however. It also interpreted that this Court that section to re- duty notes that under the statute this Court's quire consideration of similar cases that re- whole, is to examine similar cases aas not to prison sulted either death or life in without simply identify single similar case in which Indeed, parole. unambigu- since the statute particular imposed, sentence was and then ously required types has consideration of both examines similar cases in which either a cases, similar, years if for all 30 since it imprison- death sentence or a sentence of life enacted, was there would be no reason for it imposed,
ment determining before change; jurispru- it Court’s recent disproportionate. the death sentence is not dence which is incorrect. *31 imposed, was then it is therefore, penalty concurred in the denial of similar he preordained almost that the cases will be said, separately “I write to certiorari but similar, says nothing to be but this found that the Court’s denial has no emphasize is similar to about whether the case also Id. at 454. The rea- precedential effect.” analy- cases outside the orbit of the court’s he emphasize point, he wanted to son sis. said, Gregg concern that and simi- was his it is unclear whether other affirmed the lack of arbitrari- While lar cases had justices viewpoint, share Justice Stevens’ Georgia’s penalty procedures death ness the concern he raises is a realistic one statutory Georgia’s in reliance on partly that, by categorically refusing to look at court inde- requirement supreme that its imposed, in cases which life sentence was a imposition of the pendently review may excluding a court be from consider- proportionality and its to death in ation that are fact similar to the cases in or a life sen- cases which death similar it. It not surpris- one before therefore is imposed. had parole tence without been ing legislature expressed that Missouri’s Id. at 454. intent that eases in which a life sen- its “special noted there is a Justice Stevens imposed part tence was are to be a of this in risk of arbitrariness” in cases which the proportionality Court’s review. are of victim and defendant different a impose Such a review does not new races, Walker; therefore, in it such as requirement good on this Court to count him that car- greatly Georgia troubled had a super-juror and bad facts or become only “perfunctory” proportional- ried out a second-guess jury’s consideration ity review and had not considered cases in requires of the evidence. Such a review imposed, despite which death was not only it doing the Court to continue what arbitrariness, heightened stating, risk of in regard now does in to cases which death Georgia Supreme “had the Court looked imposed them determine —review in outside the universe of cases which the dispro the sentence of death is whether sentence, it imposed crime, would portionate light in of the the defen evidence, see, strength of the involving have found numerous cases of- dant and the e.g., Chaney, State v. 59-60 S.W.2d very in petitioner’s fenses similar to 1998) (finding death sentence jury imposed impris- a sentence of life disproportionate light strength onment.” Id. 455-56. comparing evidence after to other death Justice further found such cases Stevens cases) to include similar cases in —but “eminently question to be relevant to the imposed which a life sentence was given whether a death sentence in a case is See, analysis. e.g., McIlvoy, State v. offense,” proportionate to the id. at 1982) (find 341-42 that, acknowledge “failure to ... cases ing disproportionate death sentence outside the limited universe of cases in penalty imposed similar cases after con which the defendant was sentenced to sidering death and both life sentence unacceptable death creates an risk that cases). simply apply now must reviewing [the will overlook a sen- court] already existing analysis its to the broader tence impermissible infected consider- required universe of cases statute— words, ations.” if Id. other one limits those which either death or sentence imposed.6 one’s parole consideration to cases which of life without agree principal opinion I with the mine which of these constitute similar cases simply requires gather statute the Court to which the current case should be com- information all of and that about these cases pared. If the Court exercised such discretion it leaves to the Court the discretion to deter- *32 already mitigation considers Mr. Deck offered opinion evidence principal The murder, in a planned cases that it was not a that similar he Therefore, opinion separate this “lousy” resulted. made a decision while scared and nervous, whether the death sentence determines cooper- and that he confessed and in light of similar disproportionate here is notes, police. majority ated with As the additionally reviewing the cases cases presented mitigation he additional evi- in a cites as similar but which Mr. Deck dence, prior which in a case was described imposed, was and also life sentence way: cases in which a life sen-
reviewing other
The
presented
defense
substantial evi-
mul-
that also involved
imposed
tence was
concerning
dence
the
Mr.
abuse
Deck
during the course of a rob-
tiple murders
child,
as a
lack of parental
suffered
the
bery
burglary.
or
and
continual
love
his
move from one
presented
foster home to another.
It
II.
REVIEW
PROPORTIONALITY
that,
this,
despite
evidence
all
he contin-
chilling.
of Mr. Deck’s case are
The facts
younger
ued to love and care for his
boyfriend originally
He and his mother’s
siblings, scrounging for food for them
couple,
to rob the home of an older
decided
bathing
them while his mother was
couple
the
Long,
James and Zelma
while
boyfriends.
out at clubs or with
It
they
at church. But because
wanted
showed how the Pucketts wanted to
trip,
Mr. Deck and
money
sooner for
adopt
give
him and
him a chance to
in
Longs’
sister went to the
rural home
his
in a
grow up
loving family, but he was
Missouri,
DeSoto,
weekday night.
aon
instead returned to
mother and fur-
his
ruse,
entry through a
Mr.
gaining
After
ther abuse.
pulled
pistol
Deck
from his waistband
State,
Deck v.
Longs
to lie face down on
and ordered
presented expert
also
He
evi-
They
Long
their bed.
did so. Mrs.
in this trial as to the effect of his
dence
gave
opened their home safe and
Mr.
childhood,
jury
difficult
evidence which the
jewelry inside as
as
paper
well
deciding
heard and considered before
purse
cash in
from her
and additional
$200
impose
penalty,
as had the
the house. Mr. Deck then forced
jurors
prior penalty-phase
his two
trials.
lie
down while he stood at
Longs to
back
aggravators
found six
—that
trying
the foot of the bed
to decide what to
murder was committed while the de-
each
minutes,
they begged for
do for ten
in the
of
engaged
fendant was
commission
got
his sister
tired of
their lives. When
homicide;
another
that the murders were
acting as a lookout and left the house
purpose
receiving
for the
of
committed
car,
put
gun
Long’s
to Mr.
head
he
money
any
thing
monetary
other
twice,
him
did the same to
and shot
then
value;
outrageously
the murders were
that
During the
Long.
Mrs.
Neither survived.
vile,
wantonly
and inhuman
horrible
trial,
penalty phase
Longs’
son
mind;
they
depravity
involved
family
prepared
had
read
statement
they
purpose
committed for the
were
addressing
impact
of the deaths on
arrest;
they
avoiding a lawful
family.
their
cases,
gorically
and so will not be exam-
then
dissimilar
when it found similar life sentence
and,
fulfilling
statutory duty,
it would be
its
of discretion but
ined. That is not
exercise
fact,
past it
done this sub silencio.
in the
has
to exercise it and makes the statuto-
a refusal
Ramsey
says,
principal opin-
But
itself
and the
ry requirement
gather life sentence cases
affirm,
nominally appears
ion
that cases
pointless.
imposed are cate-
which a life sentence was
committed while the defendant was en-
the defendant was convicted of two counts
gaged
perpetration
in the
of a burglary;
first-degree
for shooting
murder
two
they
and that
were committed while the
persons during
burglary
the course of a
engaged
perpetration
defendant was
in the
yet received a life sentence.
Id. at 227.
robbery.
of a
multiple
While both cases involve
murders
robbery,
the course of a
there were five
argues
Mr. Deck
the facts were insuffi
Owens,
co-conspirators in
*33
three of whom
cient to
support
imposition
pleaded guilty and blamed the murders on
in
penalty
persons
because
other cases
jury may
defendant.
Id. at 232. The
with similar facts were sentenced to life in
prison.
heavily
testimony
have found that
self-serving
He relies most
on
v.
State
(Mo.
Dulany,
1989),
light
not credible in
plea agree-
Mr. clearly Deck also relies on Mr. State v. who was the mastermind (Mo.App.1991), S.W.2d 226 in which of the crime committing and admits v. was committed to avoid detection ar- Compare State murders himself. 1980) Downs, Deck, 490; rest. See also 136 S.W.3d at priors without denied (youthful defendant Deck, 994 at S.W.2d involvement, of co-defen- and statements reasons, For all of these while I believe him implicated but sometimes dants principal opinion failing errs in to con- inconsistently implicated oth- other times sider in which a life similar cases sentence committing murders actually ers I imposed, conclude consideration Harper, robbery); course change of these cases would not the result (credibility of co- (Mo.App.1986) imposition and that of the death actually who claimed defendant defendant disproportionate or excessive to the robbery during victims home under- shot imposed in similar sentence cases. in return by plea deal he made mined testimony; testimony surviving vic- his *34 arguably was in- identifying
tim defendant testimony
consistent with co-defendant’s just and unsure if
that defendant shot once anyone, strongly argued
hit and defendant issues);
credibility Jennings, State v. (Mo.App.1991) (multiple co-
S.W.2d 434 fingers at each other
conspirators pointed Wayne AKINS, Appellant, Justin multiple homicide store as actual killers Clark, v. robbery). See also State (19-year-old (Mo.App.1986) to the crime and REVENUE,
defendant did confess DIRECTOR OF mur- evidence that one of two presented Missouri, Respondent. during struggle a for his ders occurred No. SC 90181. robbery wrong that he gun gone in a two-year-old daughter). had a Missouri, Supreme Court of a life sen- While these cases which En Banc. imposed comparable are some tence was Feb. case, they differ from ways to Mr. Deck’s respects regard it in important defendant, strength
age of the the defendant actu-
evidence and whether
ally the murder or acted as an committed to con-
accomplice. appropriate It is also committing that Mr. Deck admitted
sider deliberating after over
multiple homicide them in fear for 10 placing victims
minutes, that to hide his crime in he did so robbery, and that the
the course of outrageous.
found his conduct vile and As there are principal opinion,
noted
many person in which a has received cases
a death sentence when the crime involved
multiple during murders the course of and, here,
robbery involved acts of bru- mind, or
tality depravity and showed different from the first MAI-CR 3d 313.00 Notes Use 6(a)(1)(b) I, adjudication. In that when a began Deck this Court states defendant has “law-of-the-case,” previous holding prior adjudication 2. A is the that arose to the first ” precluding re-litigation might of issues on remand have been raised but were not.’ State " Graham, subsequent appeal. '[T]he decision of 13 S.W.3d Shahan, 2000) points (citing court is the law of the case for all Shahan v. decided, 1999)). presented and as as for matters well first-degree jury may imposing murder fore the consider the guilty found of been 28, 1993, August may but be- it to penalty, committed after be asked consid- 300.03A, 28, 2001, MAI-CR 3d August fore er whether or not the defendant is men- modification, must be read to the “with tally jury unanimously If the retarded. com- jury panel immediately before the likely finds that it is more to be true qualification’ the ‘death mencement of than not true that the defendant is men- pro- That instruction phase of voir dire.”3 retarded, the cannot be tally defendant vides: sentenced to death. jury the selection stage At this jury may impos- Before the consider process, attorneys permitted the are to find, ing penalty, it must also your on question you concerning views beyond a unanimously and reasonable questions The fact punishment. doubt, that the evidence before it estab- being punishment are asked about at spe- lishes the existence of least one by you time not be taken as this should specified by cial fact or circumstance defendant(s) any indication the law, statutory aggravating called a cir- (is)(are) you guilty the case before statutory aggravating If no cumstance. crime(s) charged. Nothing that is said found, circumstance is the defendant attorneys by prospec- the or another cannot be sentenced to death. juror during process tive evi- is jury If the does not find at least one dence, you any should not let such circumstance, statutory aggravating it you any way. statements influence still cannot return a sentence of death possible punishments The for the of- it unanimously unless also finds that the degree fense of murder in the first are in aggravation punishment, evidence for imprisonment Department life whole, taken as a warrants the death eligibility pro- of Corrections without penalty, and that this evidence is not parole purpose or or death. The bation outweighed by mitigation evidence in questioning of this is to discover wheth- punishment. jury required is never you er or not are able to consider both to return a sentence of death. punishments possible punish- of these as may proceed. for the Counsel ments. This was not read. As a instruction A case which the death is a result, argues jury was not able possible punishment is tried in two respond questioning appropriately stages. stage, jury the first must (1) during jury voir dire because: decide whether the guilty defendant is finding aggrava- that a instructed guilty. or not If the defendant is found ting circumstances had to be unanimous guilty of degree, murder the first aggravating circumstances must out- stage jury second in which held (2) circumstances; weigh mitigating must decide on appropriate punishment. jury first-degree was not instructed that a If a stage second is reached in this automatically murder conviction does not case, jury will instruct the eligible make a defendant for death or that it process must follow to reach its required was not to return a punishment. present decision on For (3) death;
Notes
notes standard consti- ones, id., it not cite or discuss such did tutionally required to met in order to be Thereafter, in reliance on Ram- cases. arbitrary imposition avoid the the death purpose pro- sey’s statement penalty. agree I that this is the ultimate provide review is portionality issue, constitutional but the statute sets “backstop against the freakish and wan- I specific, out a more believe more penalty,” of the death id. application ton stringent, proportionality analysis: exceptions3 rare with required is to determine whether compare began eases Court’s the sentence of death is excessive or dis- against facts of the defendant’s case after proportionate considering similar crime, imposition light other cases cases in of three factors —the approved. strength had been the defendant and the of the evi- Parker, See, § v. 886 S.W.2d dence. 565.035.3.4Whether a death sen- e.g., State See, Shurn, principal opinion e.g., 866 S.W.2d 4. The notes that State v. Edwards, 1993) (without mentioning Stith, 2003) (written J.) states that this just Ramsey, decided a few which had been is, safeguard by Court's role "to act as a earlier, months the Court said it "examines ensuring that a sentence of death not im- capital degree murder and first murder cases posed in a case in which to do is freakish so death and in which the sentencer considers given disproportionate sentence imprisonment life to determine whether the similar considered as a whole.” That cases cases”). proportionate sentence is to other accurate, although statement is to the extent