*1 144 enactment,
from the its favoring retroactivity date of not de- constitutional merely Bottineau, from date of the the decision so cisions. See also 963 F.2d at branding “Solely prospective applica it.” (applying ruling 1074-75 that North Dako- tion of a is the exception decision the tolling ta statute violates Commerce norm judicial because it involves enforce retroactively Clause because under federal ment of a statute after the statute has “full is retroactivity law the normal rule been found to violate the Constitution.” cases”). Bendix, civil Accord at 486 U.S. (Mo. State, Trout v. 148 895, 108 (refusing prospective- S.Ct. 2218 2007). may only excepted banc One “be only appbeation). from such application retroactive of deci ,
sion,, ‘to
appli
the extent that [retroactive
IV. CONCLUSION
injustice to persons
cation] causes
who
above,
set out
this
For
reasons
good
have acted in
faith and reasonable
appbeation
holds that
Court
of
” Id., citing
rebanee.’
v. Sum
Sumners
tolbng provision
per
of section 516.200 to
ners,
(Mo.
banc
S.W.2d
722-23
who move
residence
Mis
sons
their
out of
during
pendency
souri
of the statute of
.
case,
Popoahi
Ms.
cannot
period
To
limitations
is unconstitutional
reasonably
upon
show that
Moitra,
she
relied
extent
Poling
First,
petition.
statute when she filed her
1986),
inconsistent
validity
of section 516.200
been in
has
opinion,
with this
it is overruled. Ms.
question
serious
since the
States
United
Popoahi’s
against
Bloomquist
claims
Dr.
Supreme
Bendix,
Court’s
decision
of
preliminary
are time-barred. The
writ
Eighth Bottineau, Circuit’s decisions 1073-74, Rademeyer,
963 F.2d at All Concur. 838-39,
F.3d at found Missouri’s statute
and a similar Dakota North statute invalid
under Bendix. These latter cases were years
handed down least two at before the petition, underlying Popoahi’s
conduct Ms. years
and more than initi four before she indeed, Nor,
ated suit. as a mat factual ter, credibly could she claim relied on she Missouri, Respondent, STATE tolbng provision choosing not to sue Bloomquist
Dr. within years two her treatment, also file as she failed to suit JOHNSON, Appellant. Ernest Lee against any party during other the statuto No. 87825. SC ry period though even she does not assert tolling had a she basis claim as to Missouri, Supreme Court anyone Dr. Bloomquist. other than Banc. En circumstances, Popoahi Under these Ms. Jan. she on reasonably is unable to show relied Rehearing As Modified on Denial of constitutionahty tolbng statute 19, 2008. Feb. delayed suit Bloom- filing against Dr. reliance, quist. Absent reasonable there is
no general basis to deviate from the rule *5 Gen., Nixon, Atty. (Jay)
Jeremiah W. Gen., Buchheim, Atty. Assistant Evan J. MO, Respondent. City, Jefferson RUSSELL, Judge. R. MARY Ernest Lee John fourth time This is the original His this Court. son comes before of first- three counts jury conviction of affirmed, three but his murder was degree and a new set aside were death sentences was ordered. proceeding penalty-phase (Mo. Johnson, See State ’’j.1 (“Johnson 1998) I In his second banc sen three death proceeding, penalty-phase by the again were recommended tences court; by the circuit imposed See by this Court. they were affirmed Johnson, denied, 121 S.Ct. 2000), 531 U.S. cert. (“Johnson (2000) L.Ed.2d 259 II”). later set sentences were Those post-convic during his aside this Court *6 remanded the case was appeal, tion be proceeding penalty-phase a third for mental of his incomplete evidence cause of alleged mental his capacity, specifically, State, 102 S.W.3d retardation. Johnson ”).2 2003) (“Johnson (Mo. III 535, 537 banc proceed Following penalty-phase third mental he was not jury found that ing, retarded, death sentences ly and three appeals. He now again imposed. were over jurisdiction has exclusive This Court Const, V, The art. sec. 3. Columbus, Mo. appeal. this Unger Carlyle, Elizabeth affirmed. judgment is Mississippi, Appellant. for impose the and unusual to that it is cruel set aside for death sentences were 1. The persons, mentally to call a forensic on retarded defense counsel failure of stating that psychiatrist bright-line who would have testified a test Court set forth cocaine a mental disorder of Johnson had prove by prepon- a who can that a defendant the murder. at the time of intoxication suffers from evidence that he derance of the I, at 699. 968 S.W.2d 565.030.6, Johnson retardation, as set out mental penalty. subject to the death not be will “mental retardation" 2. Missouri defines III, at 540. Johnson 102 S.W.3d 565.030.6, Supp.2006. This RSMo section statute, penalty-phase a proceed with third allowed to however, applies'to crimes committed are All further references proceeding. Nevertheless, 28, August because after 2001. otherwise indicated. Supp.2006 unless RSMo Virginia, U.S. holding Atkins v. 536 of 304, 2242, (2002), 335 122 S.Ct. 153 L.Ed.2d 150
I. Facts given struction must be to the exclusion of any Ervin, others. State v. 979 S.W.2d In 1994 Johnson bludgeoned to death 149, (Mo. 1998). 158 If proffered banc a employees three of a Columbia conven- instruction is in conflict with substantive hammer, screwdriver, ience store a using a law, a court should decline to it. follow gun. and a The details of those crimes are Carson, 518, 520 I, set forth in Johnson at 689- 565.030.4(1), Under section life im II. Burden of Proof —Mental prisonment shall be “[i]f assessed the trier Retardation by preponderance finds of the evidence Johnson asserts the trial court mentally the defendant is retarded.” erred in instructing jury that he had necessarily implies statute that it is the burden of proving mental retardation burden, State’s, defendant’s by preponderance of the evidence. The prove jury to a mentally that he is retard court jury submitted instruction MAI-CR ed. It would be illogical for the State to 313.38, 3d jurors which instructed the proponent. be the If finds they unanimously found a preponder- preponderance of the evidence that ance of the evidence Johnson was retarded, mentally defendant it shall retarded, mentally they then must return impose a imprisonment. sentence of life a verdict for imprisonment life without Johnson contends that based on the Unit eligibility probation, parole, or release Supreme ed States Court Atkins v. cases except by governor. act of the Virginia, 536 U.S. 122 S.Ct. objected instruction, to this alleging that it (2002), Arizona, L.Ed.2d 335 and Ring v. violated his 'Sixth right Amendment be- U.S. S.Ct. 153 L.Ed.2d cause it should have been the State’s bur- (2002), incorrect, this standard is den to prove mentally he was not retarded. should have been required to find He submitted his own provid- instruction beyond a reasonable doubt that he is not ing that the State had the burden of prov- having retarded before the option ing beyond a reasonable doubt that he was *7 imposing of penalty. the death mentally not retarded. The trial court give declined to his instruction because it Atkins, In Supreme Court held that in compliance was not with the MAI or Eighth prohibits Amendment sentenc- Missouri law. See MAI-CR 3d 313.38 and ing mentally a retarded offender to death 565.030.4(1). section punishment because such is excessive in that it does not advance the deterrent It or is within the trial court’s dis purposes retributive penalty. cretion of the death jury to decide whether a tendered at 122 Although instruction U.S. S.Ct. 2242. should be submitted. State v. Hartman, standard, the Court set forth this basic it S.W.3d 648 (Mo.App. 2007). A did not presumed court is to commit articulate whose burden it was to prejudicial prove and, instead, error if it appli fails to use an mental retardation left Carr, cable See Hudson it to the develop appropriate states to MAI. ways If there is to enforce this constitutional restric- instruction, applicable 317,122 MAI-CR that in tion. Id. at 2242.3 S.Ct. 3. mentally The Court's research reveals that no states that the defendant is not retarded. position requiring requiring follow the dissent’s of Missouri follows 30 states in that prove beyond prove State to a reasonable doubt the defendant mental retardation. The potential fact that increases the Ring, Supreme ing Court examined of that statutory finding a a range punishment; Arizona’s scheme that allowed it is judge to determine of a stat- the defendant from consideration the existence removes circumstance, utory Supreme which aggravating penalty. the death The a necessary impose Ring jury on a holding requiring Court’s 536 U.S. 122 S.Ct. statutory defendant. at aggravating circumstances find The Court under the apply found that a reasonable does not beyond doubt Amendment, must be finding Sixth such a issue of mental retardation. to the 602,122 by jury. made a Id. at S.Ct. 2428. trial court submitted instruction It that if a an increase held “State makes 313.38, in conflict jury, MAI-CR 3d is not in a punishment defendant’s authorized Ring. law or The court with substantive fact, contingent on the that finding of a instructing not err did matter how it— fact—no the State labels proving the burden mental Johnson had by a jury beyond must be found a reason- by preponderance a of the evi- retardation Id. able doubt.” dence. the holdings Based on in Atkins III. Directed Verdict —Mental any facts Ring, alleges Retardation necessary to put that are a defendant contends the trial court found by jury beyond death must be a a overruling for di- erred his motions doubt, Eighth reasonable and since the on the of mental re- rected verdict issue prohibits mentally
Amendment
a
retarded
urges
He
the evidence he
tardation.
death,
being
offender from
sentenced
a
by
presented
prove
was sufficient to
“mental retardation is
a factual issue
now
that he is
evidence
preponderance
a
upon
eligibility
which
defendant’s
mentally
As
earlier
retarded.
discussed
prose
death turns.” He contends that the
II,
burden of
in section
Johnson had the
prove
first
cution must
lack of mental re
the evi-
preponderance
proving
beyond
tardation
doubt be
reasonable
is mentally
that he
retarded.
dence
fore he can be
to death.
sentenced
moved for a
verdict at
he
directed
When
claim is
without merit. Un-
case,
prosecution’s
he
the close of
565.030.4(1),
finding
der section
of men-
any
presented
evidence of mental
had
and,
tal retardation is
made
retardation,
much less established
finding made,
is
potential pun-
such a
as a matter of
claim
law.
capital
for a
limited
ishment
defendant is
overruling
a de-
The trial court did not err
imprisonment. Determining
to life
is not a find-
motions.
fendant
retarded
these
*8
following
requiring
required
states have
demonstrate that he is
statutes
to
Id..;
Smith),
proponent prove
(In
parte
the defendant or
mental
Ex
re
retarded.
Arizona,
California,
Arkansas,
—
1519869,
So.2d-(Ala.2007);
retardation:
WL
2007
Delaware,
Idaho,
Colorado,
Florida, Georgia,
Jimenez,
390,
188
had a full-scale score of a verbal score Relating B. Evidence performance score of 70. The Mental Retardation second test that Johnson took was admin- July istered in aby psychometrist, law, Under Missouri “mental retarda- expert, who worked for the State’s .Dr. statutorily tion” is defined as: Heisler, psychologist. a licensed Based on a condition involving substantial limita- test, I.Q. Johnson received a full-scale in general functioning tions character- *9 score of a and a verbal score by significantly ized subaverage intellec- However, performance functioning tual continual score 73. with extensive related in testimony deficits and limitations two or heard that Dr. Heisler be- grade eight years 4. In 1968 Johnson was in the third about old. in com- had deficits Both found that Johnson “malingering.”5
lieved was Johnson self-direction, use, health and Smith, an psychologist munity Dr. a clinical safety, who one of and leisure and work. specialist addiction was also witnesses, Keyes expert and Dr. a. Communication that, testing, purposes for the admitted I.Q. having an individual can fake a lower had a testified that Johnson Dr. Smith Keyes actually than has. But Dr. stat- he verbal understanding of very concrete not think was ed that he did that Johnson communication, difficulty with but had malingering. ex-girl- communication. Johnson’s written testified, however, wrote to that he friend trial, I.Q. explained Dr. Smith that an At prison. while Dr. frequently he was her re- score below 70 is indicative of mental that Johnson’s ex- Keyes although stated tardation, an of 77 is I.Q. whereas score somewhat communication was pressive I.Q. not. score Keyes Dr. testified that an communication, receptive than his better than 75 would concern about lower raise deficiencies. had communication Johnson the Di- According mental retardation. to conceded, however, during his in- that He agnostic Mental and Statistical Manual of terview, cooperative, friendly, Johnson was (DSM-IV),6 person Disorders IV with communication, verbal and was good had I.Q. has significantly of 70 or lower subav- But place. to the Dr. oriented as time and erage functioning, pos- intellectual it is but Keyes also testified that because communi- I.Q. an individual sible for with an between environmentally spe- cation is sometimes diagnosed mentally 70 and 75 to be as cific, believed this behavior was result he they if exhibit significant retarded deficits being prison and that he of Johnson in adaptive Additionally, behavior. as ex- prison at the time his had not been plained by Parwatikar, Dr. psy- a forensic may skills have been worse. verbal chiatrist for State who had evaluated regarding competency Johnson testimony also from The heard sev- trial, person stand even is though indicating that John- eral more witnesses possess average found to intelli- below to communicate with others. son was able gence, necessarily it does not that he mean him during officers who interviewed The mentally retarded. investigation murder stated he normally nothing and he did conversed Adaptive 2. Behaviors he not know what he indicated did being probation Dr. and Dr. testified asked. officer Keyes Smith both was many catego- had to at the time assigned deficits that Johnson place ries took testified that adaptive behavior. Both conclud- the murders also ed had with Johnson. that he limitations in four of he was able communicate employees behaviors identified that worked adaptive nine that are One of “mental re- store Johnson robbed stated under Missouri’s definition of convenience had no communicat- problem tardation.” These commu- areas included skills, nication, making purchases when he came living, ing home or social prior murders. The Keyes academics. Dr. further into the store functional "Malingering” pretending DSM-IV is the standard classification is defined as 6. The physically be otherwise or "ill or disorders mental health of mental used incapacitated duty work.” so as avoid or professionals in the Untied States. (Una- Dictionary Int’l Webster’s New ed.1993). bridged 3d *10 Community also opportunity had the to evaluate d. Use ability Johnson’s to communicate with Dr. Smith testified that he believed Heisler, expert, State’s Dr. when it a in community Johnson had deficit use. watched a one hour and 15 minute record- When type asked what of behavior led to ed interview from 2004. conclusion, replied this he that Johnson had been unable to access treatment for Living
b. Home his addiction because he did not know how go doing about parole so. asked any When about deficiencies however, pastor, officer and his both stat- may living, have had in home Dr. ed that sought help he from them for his Smith said he was not able to assess drug problems. alcohol and type adaptive behavior when John- Yet, living son was in a cell. he still Keyes thought Dr. also testified that he testified later that predomi- since Johnson Johnson to be deficient this area. He nately relied on the women in his life opinion to based this on the fact that Johnson functions, perform home life public transportation this was one did not use on his own, categories in which keep job, go Johnson had did not a and did not out Keyes community things exhibited deficit. Dr. believed to do like see since, play Johnson to be movie or golf. deficient in this area There was other testi- murders, however, mony, at the time of frequently he lived with purchased his visited and items from con- girlfriend, paid who the rent. Additionally, venience day store. after murders, he committed the he called for a c. Social Skills go cab to to the mall and used cash to Dr. during Smith testified direct exami- purchase piece jewelry that he had ability nation that Johnson had the to form previously girlfriend looked at for his people connections with and had no limita- Day. Valentine’s He also took a cab ride regard tions with to his social skills. He home, paid tipped he the driver redirect, however, testified during later cash. difficulty ability Johnson has in his
interpret respond ap- social situations and e. Self-Direction propriately. Keyes Dr. indicated that he believed Keyes
Dr. stated that he believed John- Johnson was deficient in the be- adaptive son to be deficient the area of social self-direction, during havior of but his tes- any skills since he did not have close timony, explanation he stated without or friends. In forming opinion, he used example that Johnson’s self-direction and information that he learned from inter- Yet, good motivation were “not at all.” sisters, views with Johnson’s brothers and Keyes Dr. later admitted that Johnson all of whom said that it when came to logical, took precise, intelligent steps to skills, socialization Johnson’s behaviors execute, prepare, apprehension and avoid severely were deficient. Since Johnson’s for the murders. He stated this behavior siblings provided knowing this information very goal-ori- indicated that Johnson was their brother could be sentenced to carrying plan. ented in out his He ex- however, plained, he was not found to be that because Johnson’s retarded, law, jury may have doubted the actions violated the such behavior is accuracy testimony. adaptive. of this not considered *11 Safety a before, job not hold and but he did
f.Health worked not motivated to very long because he was Dr. that had Keyes concluded Johnson that John- Keyes Dr. also believed work. deficiency maintaining a in a environ- safe was not to work. son motivated ment he did not live in envi- in that healthy he ate ronment that was where Retardation Mental drug had in- properly, slept properly, no that Johnson presented Evidence was volvement, had and hobbies that were and by psychiatrist evaluated two was in- dangerous illegal. or Other evidence had determined all of whom psychologists, however, dicated, that Johnson did make mentally John- that he was not retarded. a safe attempts living to maintain envi- in son was evaluated Dr. Smith committing ronment. Prior to the mur- prior penalty-phase to earlier ders, sought help pro- Johnson from his proceedings, likewise found that and he drug problem. bation officer for his mentally Johnson was not retarded. How- prison, in he While he was asked be ever, pro- prior penalty-phase the third placed protective custody in re- avoid ceeding, changed Dr. his mind and Smith drug for a debt that taliation he owed at testified trial that he believed Johnson addition, In he prisoner. another when retardation. suffers from mental halfway was at a house in he living Dr. reaching change opinion, this Smith successfully completed a substance abuse Johnson, but did not reevaluate instead program. opinion testing his on done Dr. based g.Functional Dr. evaluate John- Keyes. Keyes did not Academics son until after the case was remanded for Dr. found that Johnson do Smith could He penalty-phase proceeding. a third was mathematics, basic but he was believed professional first to di- mental health deficient functional academics because mentally agnose being retard- Johnson as very he limited in his ability was to do ed. anything complex, more such as multiplica- tion, subtraction, division, that he long forming Johnson’s testified was or teacher from budget. Keyes special Dr. that al- education classes fourth testified though in ninth grade through eighth grade; academic work had suc- track, somewhat, grade, placed it was he on the basic probably ceeded because was slower-ability living highly he in a which was children. had been structured However, years. last 12 these classes were for environment for the none of
mentally people children. Several retarded h.Leisure Work throughout have him his life— who known teachers, siblings, girlfriend, a former When asked whether Johnson was defi- indicating testimony gave work, cient in leisure and Dr. the area of others — a hard he was slow and often had time did not Dr. Smith stated he know. Yet, was learning things. able to Keyes found he was deficient because many special of his good grades receive drug activity. his leisure Dr. use was education classes. however, Keyes acknowledged, John- enjoy riding son horseback when used to Discussion C. younger. he He also admitted that presents case prison. record job held a while John- conflicting evidence amount of son’s officer testified that he was substantial probation claim that he capable working and that he had as to Johnson’s *12 retarded. all of experts Finally, Keyes Of the that exam- cern about Dr. bias. based Johnson, only ined Dr. many findings regarding Smith and Dr. of his Johnson’s Keyes mentally found that he deficiencies in the areas of was retard- communication Smith, and ed. Dr. who did not believe self-direction on the fact that he was job. not able to a Johnson suffered from mental hold There was testimo- retardation however, ny, from in several other witnesses when he examined him 1996 and job capable getting Johnson was a changed testimony reviewing his after the and it was lack his of motivation that led to Keyes tests Dr. conducted. Dr. Smith also inability his employed. to remain majority admitted that the of the cases he had in death-penalty testified were cases credibility addition to the issues of in and the 40 times he had testified over witnesses, expert with both of years, the last 18 had always he been a jury the also heard evidence that Johnson witness for the defendant. I.Q. had multiple scores that were above mentally the range retarded and that his
There legitimate were also concerns functioning intellectual was not subaver- First, Keyes’s qualifications. about Dr. he Furthermore, age. an oppor- had psychologist. is a school He works tunity to view an hour and 15 minute educational field and is trained to evaluate psychologist, interview between the State’s diagnosis children who are no older Dr. Heisler and Johnson. The interview years than 22 qualified old. He is not to years was conducted about 10 after the diseases, diagnose only mental and the murders, yet Johnson was able recall type of qualified mental defect he is many details provide of the crime and Second, diagnose is mental retardation. explanation for the decisions he made.7 Keyes Dr. admitted that he makes about There was present- also sufficient evidence by testifying half of his income that a regarding adaptive ed at trial his behav- mentally defendant is retarded. He has iors for the to conclude that he did never on prosecu- testified behalf of the not have continual deficits two or more Third, tion. he did not become involved in categories. Johnson’s case until it was remanded for a penalty-phase hearing third on the issue of evidence, conflicting Because of this retardation, mental and he was the first overruling trial court did not err in John- person to conclude that Johnson was men- a son’s motions for directed verdict. Def- Fourth, tally retarded. to test Johnson’s given jury, erence should be behaviors, Keyes adaptive Dr. relied on viewing light the evidence most anecdotes and stories about Johnson that judgment, favorable to the there was suffi- siblings, he learned from Johnson’s who cient evidence from a which reasonable knew that would not juror Johnson be sentenced could have found Johnson did to death he were found to be prove by preponderance of the evi- Thus, relying retarded. on Johnson’s sib- dence that he suffered from mental retar- lings presented information con- dation. explained wearing thing. He
7. Johnson that he decided to rob to be the same also wore Casey’s money buy because he needed people a mask so could not see who he was. more cocaine. He told Dr. Heisler that he high he on co- Johnson admitted that layers clothing wore two so he could re- caine when he committed the murders. He top layer robbery. move the after the When however, blackouts, not, experience any did that, why asked he would do said he everything hap- and he was aware of people give knew the in the store would pened during robbery. description clothing, of his so he did not want planned Johnson had forethought. IV. Directed Verdict— Imprisonment at least a Life store for up hold a convenience committed the he did so and month before alleges that the trial court and test-fired murders. He borrowed overruling for a di- erred motions He robbery. that he used pistol imprisonment rected verdict of life because he clothing, which layers wore also ag- mitigating outweighed evidence *13 prevent murders to after the could discard law, a matter of gravating evidence as identification. his thus, not war- the evidence as whole did rant three death sen- imposition of the that Johnson’s moti- Dr. Smith testified tences. The standard of review is the get to committing the crime was vation for III. previously point same as discussed But the money buy jury to more cocaine.
During phase, penalty the testimony just hours after the heard many dif presented Johnson evidence of crime, took a cab to the mall and Johnson None, mitigating ferent circumstances. robbery money the from the used some of however, strong was so that a reasonable ring girl- cluster for his buy to a diamond juror could concluded that have evi that he Day present friend as a Valentine’s mitigation outweighed aggra dence buying contemplating had been before vating provided evidence. Johnson the murders.
jury very poor with evidence of a home that even if the did argues Johnson life—he his mother was abandoned retarded, him he not find to be young, physically when he was he was capacity, did have a diminished intellectual abused, sexually exposed and he was function in ability affected his which early drugs age. and alcohol at an Miti assertion, society. Despite his this Court gating extremely enduring evidence sentences when a defen- upheld has difficult childhood is an insufficient basis I.Q. provided of a low dant has evidence imposition penal find that the of the death Richardson, 301, 325 v. 923 S.W.2d State Brooks, ty is unwarranted. 960 Leisure, (Mo. 1996); 749 State v. banc (Mo. 1997). 479, S.W.2d 503 banc John (Mo. 1988); banc State v. psychologist son’s also testified that he (Mo. Gilmore, banc 681 S.W.2d allegedly syn suffered from fetal alcohol Shaw, 1984); 672- State v. 636 S.W.2d drome, yet psychologist acknowledged (Mo. 1982). banc the “characteristics” he observed conclusively Johnson fetal alcohol were Regardless of contention that syndrome and could indicative of other be a matter of law was incorrect as conditions. that the evidence when it did not find outweighed ag- the evidence in mitigation Additionally, presented im- background, his gravation because of suffering evidence that he was from acute functioning, average below intelli- paired binge from a at the withdrawal cocaine at the influence he was under gence, and time he committed the murders. Evidence murder, argument the time of as an abuse can be seen substance by the record. When exam- unsupported rather than a aggravating circumstance favor- light in the most ining the evidence jurors. circumstance some mitigating sufficient judgment, there was State, able to Taylor See juror from which a reasonable Further, evidence there was evi evi- mitigating that the could have found indicating impul that it was not an dence outweigh aggravating crime, dence did not planning sive but instead involved result, have a As a deference should be her fellow church members son who evidence. murder, given jury, charged and the trial court was had been with and she they anguish not in error when it overruled Johnson’s had witnessed the have been possibility verdict. due to the that he experiencing motions directed may sentenced to death. asked be When V. Removal Veniremembers further, about this she admitted that she for Cause ability impose believed her the death penalty substantially impaired. would be alleges the trial court erred granting challenge the State’s for cause for during questioning, prosecutor Later Green, Letter, jurors prospective Corcor- who, anyone if there panel asked an, Alley. argues He views their penal- because of their views on the death on the death would not substan- ty, imposing could never consider a sen- *14 tially impair ability participate their to following of death. The conversation tence during penal- the process the deliberative ensued: ty-phase. just say yes. I am have to Green: —I’d ruling The trial court’s on a say yes? You’d [Prosecutor]: challenge for cause shall not be disturbed you just Green: Because of when —You appeal against weight it is the on unless said, you you me convinced when “Could the evidence and constitutes a clear abuse up pronounce penal- the death stand Taylor, of discretion. I I ty?” And I couldn’t do it. know venireperson A couldn’t. may be excluded from the if his view Oh, you sign could [Prosecutor]: substantially impair prevent would or verdict form? juror. performance duty of his as a Id. If I that. Right. Green: couldn’t do appears juror it that a cannot consider the act, you if You could [Prosecutor]: range apply the correct punishment, by foreperson as the were selected in proof, burden of or follow the court’s jurors, you could not as the fore- other case, in a murder then a chal structions sign that? person and A lenge will be sustained. Id. for cause juror’s uncertainty ability about his to fol I That’s made me realize Green: what capital along in a case with an low the law never do it. could sign that he cannot equivocal statement sign You couldn’t a verdict [Prosecutor]: verdict of death can be a basis for trial of death? jury. him from the Id. court to exclude No Green: Additionally, 29-30. when there is ambi questioned by later When Green was statements, juror’s in a guity prospective counsel, said that if the law defense she court, trial which is aided its assess pen- impose her she had to the death told demeanor, juror’s to ment of a is entitled alty, thought then that she would be she ambiguity in favor of the State. resolve However, to do it. she also admitted able Brown,-U.S.-, 127 S.Ct. Uttecht v. her, challenging” for very that “it would be (2007). 2218, 2223,167 L.Ed.2d “biased,” and that she would she would be for the death voting have hesitation 1. Veniremember Green sentence. dire, During voir Green stated to strike Green for the The State moved voting
that she “would hesitate” cause, deciding objected. that some of and Johnson penalty. explained She meanor, its discre- motion, court, the court did not abuse prose- to sustain to sustaining the State’s motion cutor, the follow- tion and defense counsel had Green for cause. ing strike discussion: Well, guess ques- The I I have a Court: my [defense
tion in own mind as to what Leiter 2. Veniremember time, question was at the be- counsel’s] asked Leiter prosecutor When the cause—And I recall answer [Green’s] the death imposing if could consider she it, “If I had do I could do it.” being, “a little said that she has penalty, she talking And I don’t know she was difficulty penalty” the death but with signing about the verdict form or— it. She “guess[ed]” she she could consider I think she was. [Defense Counsel]: say she did not think continued on rendering the death Court: —or seriously voting ability that her consider penalty. impaired, for the death would be I think she was talk- [Defense Counsel]: could be but she did not believe that she ing rendering penalty, about the death sign recommending one verdict Your Honor. death. asked de sentence of When thought The Court: That’s what I she if she could serve on a fense counsel saying. You never have to. death, assuming she considering that was *15 foreperson not the and did not have to
was never, The Court: You ever have to verdict, that sign replied off on the Leiter under Missouri law. she could. She also stated she believed could set aside
that she believed that she impar fair personal her biases and be She never came off the [Prosecutor]: However, later whether tial. when asked issue, verdict form even in the defense leaning parole towards life without she further, voir dire. And the State would said, “I or death she would listen certainly agree that the demeanor of all evidence, say I but have to be honest Court, jurors, as observed the that I would tend to lean for life.” When should be taken into And consideration. further, say on to questioned she went she was clear in her statement that her try” punish both she “would to consider ability legitimately to consider the death equally. ments penalty substantially impaired. would be Well, agree. going The I I’m to Court: prosecu- The trial court sustained challenge. sustain because tor’s motion to strike for cause dire, did not Throughout explicitly voir made sev- Leiter stated that she Green that she could be the one who indicating eral statements she was believe jury imposed the verdict form if the signed certain that she would be able to vote penalty. Since Leiter said she penalty. the death She also stated that the death difficulty imposing have some sign she would never be able to the verdict would im- Al- she would lean toward impose penalty. penalty, to the death death form death, im- sentence over and she though posing would be able to a life she said she sign the one to a verdict of death if the law re- could not be pose a sentence death, trial it, sentencing require does not it. quired law court, de- aided its assessment of her equivocation on about her Based Green’s in favor resolving any ambiguity in ability impose the death and the meanor State, did not abuse its discretion opportunity trial court’s to assess her de- den, trial court prosecutor’s motion to sustained State’s sustaining for cause. to strike her for cause. addition strike motion inability to hold the to Corcoran’s 3. Veniremember Corcoran proof, she also ex- the correct burden she would be questioned pressed about her views doubt as to whether When considering penalty. told the the death penalty, impartial on the death Corcoran that the would have trial did not abuse its discretion prosecutor “evidence court great” impose sustaining to be for her to be able to motion to strike. State’s she was asked penalty. the death When questions,
additional she said that based Alley 4. Yeniremember penalty, her on her view of Alley prosecutor When the asked ability impartial deciding to be whether impose about whether she could the death would be im impose death sentence penalty, she indicated that based on her expressed concern that paired. She also religious views she was not sure that she facts, hearing even after all the she did not During ques able to. further would be swayed from know whether she could be to, if had she tioning, Alley agreed that she saying: her view. Corcoran elaborated would not able to choose the death be are, My thoughts I don’t like the idea of could not penalty. explained She she just I penalty. the death And don’t not be able to talk say that someone would impartial. if I—if I I know would be that, but she had never had that her out would, you I that I don’t know. think However, also indicated that happen. she know, evidence, listening after to all the already up regard had made her mind she I impartial, I think that I could be but ing penalty. the death Defense counsel be, definitely that I no. say can’t would Alley really meant that later asked she Later, prosecutor asked her when the impose penalty, she could never the death *16 about whether she would hold the State was, and her ‘Tes.” answer higher beyond than proof burden the trial court asked there was When doubt, said, “Yes, reasonable Corcoran be objection an to the State’s motion to strike talking about someone’s life.” cause we’re cause, Alley for defense counsel said mind, in she explained that her own She However, was, objection.” there “No “would have to know for sure.” in mo- later raised this issue talked with defense counsel later When appeal. trial and in this tion for new Corcoran, that while her she indicated stated several times that she Alley Since would ability impose the death penalty, the impose could not the death impose be she could sentence impaired, trial court did not its discretion abuse agreed that she could of death. She also the motion to strike her sustaining to its follow the law and hold the State cause. in- beyond-a-reasonable-doubt burden prove it more. Cor- requiring stead of court, by its assessment The trial aided coran, however, by say- qualified later demeanor, en- jurors’ prospective just I have to be
ing, myself, “for would in their any ambiguity titled to resolve completely convinced.” in favor of the State. statements grant- court did not abuse its discretion indicated that she Because Corcoran pro- challenge for cause higher proof ing State’s require a burden would Letter, Corcoran, Green, jurors spective deter- beyond-a-reasonable-doubt than Alley. its and the State had met bur- mining whether murder, it Autopsy degree and counts of first and VI. Crime Scene three Photographs pun- to determine responsibility was their Normally, jurors would have al- ishment. argues that trial court ready his crime from seen evidence about 34A-G, admitting erred in exhibits State’s However, guilt-phase proceeding. 39A-C, 41A-D, 69A-D, 70A-E, and 71A-C penalty- a retrial of the since this was evidence, into because these crime scene prior no phase proceeding, jury had autopsy photographs gruesome and were opportunity any prior to see evidence. only jury. and meant to inflame the He During penalty-phase the retrial of the they im- prejudicial contends had a proceeding, the State had the burden pact jury’s imposi- that contributed to the statutory circum- proving aggravating tion of the death sentences. He admits alleged jury stances were was entitled to know how the aggravators victims were killed so it could determine ease. One of these statutory the existence of the aggravating “outrageously whether the murders were relating circumstances com- vile, horrible, to whether he inhu- wantonly repeated mane,” mitted and excessive acts of required which to find that contends, however, physical abuse. He repeated Johnson “committed and exces- testimony that the of the medical examiner physical acts of abuse” that made each sive and other witnesses who the victims’ saw “unreasonably killing brutal.” bodies was sufficient pur- to achieve this objection, Despite defense the court ad- pose. He asserts that the photographs photographs mitted color of the crime should not have been admitted because bodies, they scene and the victims’ both as probative their outweighed by value was First, autopsy. were found and after the prejudicial they ju- effect had on the photo- was shown crime scene rors. graphs depicting the area where the bod- A trial court has broad discre in a and walk-in ies were found bathroom tion in the photographs, admission of Photographs cooler. were shown of the its will decision not be overturned absent that the victims’ head wounds—so severe Strong, abuse of discretion. police initially they were inflicted believed A shotgun, with a when fact the victims photograph just is not inadmissible be likely bludgeoned were with a claw ham- *17 cause other evidence described what is Second, jury nearby. mer found the photograph. shown in the State v. Rou that, autopsy photographs again, viewed (Mo. 1998). san, 961 S.W.2d banc injuries head consistent showed extensive Additionally, if in photograph even being with struck with a hammer and de- flammatory, it should if it not be excluded fensive that matched a flat- stab wounds Generally, photographs is relevant. Id. if nearby found in a field. head screwdriver it gruesome, are is because the crime itself gruesome. Strong, at 715. S.W.3d only pictures were the visual jurors help them evidence that the had to case retrial of
This involved a of crime and to understand the nature penalty-phase proceeding. proved had its decide whether State jurors These had not in the participated Generally, gruesome photographs case. guilt-phase proceeding, in which evidence (1) crime, the nature they: are admissible show including photographs, had (2) wounds; jurors of enable They been admitted into evidence. were and location trial; testimony had of understand the at aware Johnson been convicted better (3) mitigating were sufficient establishing an element of whether there aid Mayes, outweigh aggra- v. 63 facts circumstances to the State’s case. State (Mo. 2001). jurors If punishment. banc Because find there vation depicted the nature and facts photographs mitigating are sufficient and circum- wounds, deadly stances, aided they required extent of the victims’ are to return a then aggravating circum- establishing imprisonment. verdict of life case, helped the stance of the State’s request that the court Johnson did not no jury testimony, understand there was giving any from of the MAI-CR 3d refrain admitting photo- abuse of discretion in- during instructions penalty-phase graphs. Because he failed to struction conference. instructions, this issue has object Constitutionality Mitigation VII. appeal only and can preserved not been Instructions error. plain be reviewed for the trial court Johnson contends (Mo. Glass, 496, 507 banc 136 S.W.3d requesting his motion overruling erred 2004). giving jury the court refrain from to 313.48 MAI-CR 3d 313.40 instructions requires finding Plain error permit because these instructions did in man that the trial court’s error resulted miti- jury give full consideration miscarriage justice. injustice or ifest gating Specifically, evidence. County, Hensley Jackson three different instructions.8 challenges To prove instruction, to the level of on an instructional error rose jury The first based error, must demonstrate 313.40, jurors plain to con- requires MAI-CR 3d jury statutory ag- that the trial court so misdirected sider whether one or more that the instructional apparent If the that it is gravating circumstances existed. at jury’s affected the verdict. Id. beyond not find a reasonable error did is that main contention aggrava- at least one 497-98. Johnson’s doubt that there was jury to focus circumstance, require instructions ting then it was instructed these cir exclusively statutory aggravating on imprisonment. to return a verdict of life instruction, find that the evidence patterned cumstances and The next which was 313.41A, ju- before examin instructed warrants the after MAI-CR 3d complains ing mitigating evidence. He they or more statu- rors that if found one essentially to focus circumstances, jury was told they must that the tory aggravating evidence twice aggravating facts and cir- on the same decide whether there were any instructed to consider being before aggravation punishment cumstances in he admits whole, Though that, mitigating the im- evidence. taken as a warranted Missouri statutes and United The final that both of a death sentence. position require instruction, on MAI-CR States Constitution which was based *18 statutory aggrava 313.44A, consider whether jury that if the unani- first 3d stated exists, that MAI-CR 3d alleges he the facts and circum- tor mously found that jury 313.41A, the which sets forth when punishment, tak- aggravation in of stances penalty, the death whole, may imposing consider imposition the en as a warranted sentence, necessary prejudicial. not and was it must decide was a death then instructions, counts. for each of the three nine but 8. He takes issue with they instructions are a set of three identical
163 rejected mitigating evi- previously give This has full consideration Court Middleton, meritorious, no In v. 998 not and there is this claim. State dence is (Mo. 520, 1999), 530 the de plain S.W.2d banc error. argued
fendant MAI-CR 3d 313.41A required Constitutionality unconstitutional it
was because VIII. jury aggravating to first find that cir Proportionality cumstances warranted the death sentence Scheme considering mitigating before evidence. alleges that this Court’s scheme Johnson disagreed explained Id. This Court proportionality comply review does not jury’s finding pen that the that the death requirement section with alty is warranted is not the same as decid thus, 565.035.3(3), 2000, RSMo ing imposed. Similarly, it shall be in State unconstitutional and death sentences are (Mo. Tokar, 753, v. 918 S.W.2d 770-71 rejected must This claim was be vacated.9 1996), banc the defendant contended that in Johnson II and similar claims in MAI-CR 3d 313.42B did not allow for the II, other cases. 22 several Johnson proper weighing aggravating cir Johnson, 193; at 207 S.W.3d State mitigating cumstances with the circum (Mo. 24, 2006); Hutchi S.W.3d 49-50 banc stances. (Mo. State, son v. 150 S.W.3d banc 313.42B, 3d MAI-CR like MAI-CR 3d Anderson, 2004); S.W.3d 313.41A,requires jury to decide whether addition, In aggravating enough circumstances are to Eighth has addressed this issue Circuit penalty. examining warrant the death In proportional and held that both Missouri’s argument, Tokar’s this Court found that ity scheme and the statute that sets forth under jurors MAI-CR 3d 313.42B did not requirements for review are constitu need to consider mitigating circumstances Delo, tional. See LaRette v. 44 F.3d they unless aggravating found that circum- (8th Cir.1995).10 sufficiently stances imposi- warranted the Furthermore, claim since this tion penalty. of the death MAI-CR 3d previously rejected raised and jury 313.42B does not ask a impose II, the law of the doctrine case penalty; simply it jury directs a II, 22 applies. See Johnson at 193. determine whether aggravating cir- doctrine, governing ap cumstances are This successive sufficient to warrant imposition peals, may of a death states the same issues not sentence. As ex- Tokar, plained in language relitigated subsequent appeal in- be as struction helpful previous holding to the defendant be- on those issues be State, cause it erects a barrier that must be comes the law of the case. Laws v. passed jury imposi- before a can (Mo.App.2006). consider Be penalty. previously tion of the death at 771. ar Id. cause Johnson asserted this II, argument gument may that the instruc- he raise it tions in his case permit again appeal, did not in his current and this 565.035.3(3), LaRette, 9. Section RSMo 2000 states that the court examined section regard 565.014.3, with to a death sentence this Court section was re- RSMo 1978. This determine must whether the "sentence of pealed replaced by in 1983 and section disproportionate death is excessive or 565.035.3, 2000, which contains sub- RSMo cases, penalty imposed considering in similar stantially language. the same *19 crime, strength both the of the evidence and the defendant.” Further, ar previous holding rejecting supported Court’s the evidence gument findings following controls. of the aggravating cir- (1) murder was cumstances: each commit- Proportionality
IX.
Review
engaged
ted while
was
Johnson
in the
homicide;
of
unlawful
Johnson asserts that his death
commission
another
(2)
they
sentences must be vacated because
each murder was committed while
disproportionate
are excessive and
was
in the
engaged
those
Johnson
commission of
(3)
homicide;
imposed in other similar cases. This claim yet another unlawful
each
part
is addressed as
inde
purpose
of
Court’s
victim was murdered for the
of
review,
pendent proportionality
money
which
receiving
things
other
of
or
mone-
(4)
against
value;
intended to ensure
the “wanton”
tary
each murder involved de-
imposition
pen
of the death
mind,
and “freakish”
thereof,
pravity of
and as a result
Edwards,
511,
alty.
vile,
116 S.W.3d
outrageously
wantonly
was
and
horri-
(Mo.
2003);
(5)
banc
See Kansas v. ble,
inhuman;11
and
each murder was
Marsh,
548 U.S.
2541-
126 S.Ct.
arrest;
to prevent
committed
(2006).
42,
X. of Method Eighth Tay- violation of the Amendment. of Execution (8th Crawford, lor v. 487 F.3d argues the trial Cir.2007).13 court erred in denying his motion to pre
clude the State from seeking the death XI. Conclusion penalty because the method of execution judgment The is affirmed. prescribed by Missouri law cru constitutes el and unusual punishment in violation of LIMBAUGH, JJ., PRICE and the Missouri and United States Constitu BARNEY, Sp.J., concur.
tions. This issue was addressed in John WOLFF, J., separate dissents in opinion II, son 22 S.W.3d at Although 189. John filed; STITH, C.J., LAURA DENVIR argued son unsuccessfully at original his TEITELMAN, J., opinion concur in trial that Missouri’s method of execution is WOLFF, J. unconstitutional, he failed to raise the is original sue in appeal. his appeal On from BRECKENRIDGE, J., not his second penalty-phase proceeding, he participating. argument
raised the again, and this Court WOLFF, Judge, MICHAEL A. found that under the law of the case doc dissenting. trine the trial judge’s original ruling deny ing the matter Legal procedure, including controls. The law of the “burden case also applies proof’, to appeal.12 may interesting this current not seem that Johnson, Johnson’s claim is people. controlled the trial most But to Ernest how judge’s original ruling may proof and he the Court allocates the burden of is relitigate this issue. the difference between life and death.
Additionally, this
State,
Court has found that
This Court
in Johnson v.
(Mo.
2003)
set,
(Johnson
when
execution
III),
date has not
it
been
S.W.3d 535
banc
premature
involving
consider a claim
determined that Johnson would not be
execution,
the method of
type
subject
as the
to the death
if he could
injection
lethal
may
that the
in prove by
use
a preponderance of evidence at a
the future is unknown.
Worthington
sentencing phase
See
new
trial that he is men-
State,
(Mo.
166 S.W.3d
583 n. 3
tally retarded. The defendant in Johnson
banc
Johnson does not know his
III did not raise the issue of allocation of
execution,
date of
on,
and it
prema-
proof
would be
the burden of
points
relied
ture to consider whether a particular
nor did the state
it.
alloca-
address
Appellate
recently
courts have
Supreme
discretion to consid-
13. The United States
Court
-
despite
Rees,
er the issue
the law of the case doc-
granted certiorari
U.S.
Baze
mistake,
injustice,
trine if there is a
a manifest
-,
(2007),
128 S.Ct.
166
statute,
565.030.63, does
section
to the defen- Missouri’s
proof
of
tion of the burden
subdivision,
section
not.
Another
by this court in the absence
was made
dant
565.030.4(1),
impris-
that life
provide
does
consider-
statutory mandate and without
of
trier
be assessed
presented
“[i]f
onment shall
question
constitutional
ing the
of the evidence
preponderance
of
finds
question
I
consider the
here.
therefore
mentally
is
retarded.”
that the defendant
proof
open
of
to be
allocating the burden
specify
whether
The statute does
appeal.
in this
for full consideration
of
has the burden
state or the defendant
III The Court’s decision
on the issue.
proof
implement
principle
estab-
intended
304,
“mental retarda-
Virginia,
v.
Missouri’s definition of
lished Atkins
536 U.S.
Atkins but consis-
(2002),
2242,
tion”—enacted before
L.Ed.2d 335
122 S.Ct.
153
decision to
Supreme
with the
Court’s
it
for
tent
held that
is unconstitutional
which
says
definition to the
executed.
leave the
mentally
person to be
retarded
states —
in-
condition
“mental retardation” is “[a]
holding,
Supreme
In
Court
so
general
limitations
in Atkins
volving
left “to the
substantial
United States
by significantly
functioning characterized
developing appropriate
of
the task
Statefs]
functioning with
subaverage intellectual
constitutional restric-
ways to enforce the
deficits and
extensive related
of sentences.”
continual
upon their execution
tion
adaptive behav-
317,
limitations in two or more
(quoting
122
2242
U.S. at
S.Ct.
self-care,
communication,
399,
as
Wainwright,
v.
416-
iors such
Ford
477 U.S.
use,
(1986)).
skills, community
living, social
417,106
2595,
home
91 L.Ed.2d
S.Ct.
self-direction,
safety, functional
health and
passage from Atkins is
para-
in a
This
academics,
work,
which condi-
leisure
opinion that deals with how
graph of the
documented be-
tions are manifested and
is defined.1 Nowhere
“mental retardation”
age.”
of
Section
eighteen years
a discussion of
fore
opinion
in the
is there
burden of 565.030.6.
should bear the
party
which
mental retardation or
what
proving
that the state
argues
counsel
Johnson’s
proved.
it should be
standard
beyond
proving
the burden of
should have
is not
that Johnson
a reasonable doubt
proof
the burden of
states include
Some
subject
him
in order for
to be
retarded
supplies
the definition.2
in the statute
reads,
provides,
example,
Illinois statute
For
the extent there
2.
paragraph
"[t]o
1.The
disagreement
the execution of
mental retarda-
about
of the defendant’s
"[t]he
is serious
issue
offenders,
mentally
hearing.
it is in determin-
pretrial
retarded
determined in a
tion shall be
retarded.
ing which offenders are in fact
on the issue
be the fact finder
The court shall
case,
instance,
of
the Commonwealth
mental retardation
of the defendant’s
disputes
from
Virginia
that Atkins suffers
by preponderance
the issue
shall determine
people
all
who claim
mental retardation. Not
party
moving
has the
in which the
of evidence
impaired as
mentally retarded will be so
to be
may appoint an
proof.
court
The
burden
range
retarded
within the
to fall
The
expert
field of mental retardation.
in the
con-
whom there is a national
offenders about
experts
may offer
and the State
defendant
approach
in Ford
As was our
sensus.
of mental retardation.
from the field
2595,
399, 106 S.Ct.
Wainwright, 477 U.S.
admissibility
evi-
determine
court shall
(1986),
insanity,
regard to
with
L.Ed.2d 335
expert.” qualification
an
as
dence and
developing
State[s]
the task
'we leave
15(b)(2003).
Comp.
Ill.
Stat. 5/114—
ways
enforce the constitutional
appropriate
sen-
upon
execution of
[their]
restriction
2000.
statutory
are to RSMo
references
3. All
399,
416-417,
Id.,
477 U.S.
tences.’
at
at
335.” Atkins
91 L.Ed.2d
106 S.Ct.
122 S.Ct.
significant-
has
I.Q.
score below 70
penalty.
argument
the death
with
Arizona,
functioning.
intellectual
Ring
ly subaverage
based on
536 U.S.
*22
that, as a
2428,
(2002),
presented evidence
122
in The defense
S.Ct.
tered one of the testified A Matter of Life Death or adult score of he believed Johnson’s malingering 67 was the result of and not Allocating the burden to the defendant actual mental retardation. The state also prove that he mentally is retarded both functioning contended that Johnson’s makes the decision—whether Johnson prison prior to his incarceration penalty should receive the death —seem adaptive he indicate that does not have capricious. The facts of this show case behavior deficiencies. may result —life or well death — depend party on which has the burden of support The evidence in this will case proof. jury, A con- either conclusion. reasonable evidence, may equi- all the sidering be The evidence favoring position presents precisely thus poise. Johnson is as follows: Johnson received three intel- proof the kind of case where the burden ligence indicating subaverage test scores even determinative. important, 12, functioning. age intellectual At the proof by prepon- Johnson received a score of 63 on the the burden of With test, intelligence a standard of the evidence allocated to John- WISC test derance son, I.Q. principal opinion, children. Two of the tests as it is not jury’s took as an adult indicated that he had a determination that Johnson is I.Q. mentally supported by retarded is evi- guidelines full scale of 67. Under the placed upon If burden were Diagnostic set forth and Statistical dence. IV, to show that Johnson is person Manual Mental Disorders the state State, 95, 202, (Miss. (2003); Maynard, v. 4. Russell v. 849 So.2d 148 A.2d 211 Franklin Lott, 303, 276, 604, (2003); 2003); 606 Ex 97 Ohio St.3d 779 356 S.C. 588 S.E.2d 1, (Tex.Crim. State, Briseno, (2002); 12 Murphy v. Parte N.E.2d 1015 Commonwealth, (Okla.Crim.App.2002); App.2004); Bowling v. 54 P.3d Mitchell, (Ky.2005). Commonwealth 576 Pa. retarded, subject to the death jurors may well Whether Johnson is is, or not—that whether he is men- insufficient have found the state’s evidence tally certainly or not—is almost retarded carry that burden over the evidence proof the burden of dependent upon where contrary. may regardless This be so Ring speaks is allocated. of the state’s beyond a reason- of whether the burden is prove upon each fact which the doubt, burden to Ring, by preponder- as in or able Logical- evidence, punishment depends. defendant’s as in section ance of 565.030.4(1). ly that include the burden to would state’s retarded, is not re-
show *23 Lenity The Rule of sponse to evidence that would indicate that words, may he be retarded. other majority opinion contends favoring establishes at evidence 565.030.4(1)“necessari- language of section prima that he is retarded. least facie burden, ly implies that it is defendant’s not case, that is the the burden should Where State’s, prove to a that he is subject prove on the state to that he is be noted, mentally retarded.” As section penalty by bearing to the death the burden 565.030.4(1) imprisonment states that life that he is not retarded. This proving by the trier finds a shall be assessed “[i]f lack oblige prove not the state to would the evidence that preponderance of case, every penalty retardation mentally retarded.” defendant is only in those cases in which the defen- but say not whether the The statute does believed, that, if dant introduces evidence burden is on the state or on defendant that he support finding would is is, therefore, ambiguous. Where retarded. This is such a case. lenity re- ambiguity, there is the rule strictly the court construe a quires Conclusion against criminal the state. statute controlling Supreme In the absence of (Mo. Hobokin, 76, 77 768 S.W.2d banc authority contrary, this Court Court lenity, criminal Under the rule of set a substan- should read Atkins —which judicial may by statutes not be extended Ring, standard —with tive constitutional persons interpretation so as to embrace constitutionally based which established unambiguous- specifically and acts not the constitu- procedural standard. When ly brought within their terms. State right, the state provides tion a substantive Salazar, away diminish that should not take or 2007) 320 Mo. (citing Lloyd, State v. procedure. its choice of right (Mo.1928)). The rule lenity to Johnson’s case. Be- applicable is entitled to a new 565.030.4(1) specify cause section does the state has the phase trial which prov- must the burden of not re- party which bear that Johnson is proving burden of and, thus, ing preponderance subject pen- mental retardation to the death tarded infer, evidence, court must not alty. lenity, that the law “nec- under the rule of respectfully I dissent. something that is not essarily implies” ambiguity in in the statute. The written against must be construed
the statute such, interpret As the court should
state. placing the burden on the
the statute as
state.