*1 act, “reasonably prudent Diocese” would Missouri, excessively entangle Respondent, it-
court would have to STATE of doctrine, religious policy, and adminis- self in tration. KENLEY, Appellant. Kenneth voluntary right organize religious No. 77093. expression to assist in the associations doctrine, any religious ... dissemination Missouri, Supreme Court of government all and for the ecclesiastical En Banc. members, congregations, the individual association, general Aug. officers within the 1997. unquestioned. All who unite themselves Sept. Rehearing Denied implied body so with an to such do government, and are bound consent to this submit to it.
Serbian, at 426 U.S. Watson,
quoting
members their
“subject only appeals organism such as the provides
itself for.” Id. The trial court did indepen- claims of dismissing
not err in negligence by the Diocese.
dent
TV. cross-appeal involving appeal liability are dismissed. The dis-
Brewer’s of the claim of intentional failure
missal reversed,
supervise against the Diocese is judgment dismiss-
but the remainder of
ing against all other counts the Diocese is proceed- The case is remanded for
affirmed. opinion.
ings consistent with this
LIMBAUGH, ROBERTSON,
COVINGTON, HOLSTEIN, WHITE FLANIGAN,
JJ., Judge, concur. Senior J.,
PRICE, sitting.
252
256 spree, Kenley sporting into a
crime broke goods guns. store and stole some On Janu- 2, ary Kenley purchased a box .38 caliber point practiced shooting hollow bullets and cans and trees. 3, Kenley p.m. January
At about 11:15
on
package
wearing
the Kater Inn
store
entered
holding
pistol.
a ski mask and
.38 caliber
emptied
regis-
clerk
the cash
After
store
bystander,
bag, Kenley grabbed
into a
ter
Buttry,
Sandra
and forced her into
brown
wagon
station
that he had borrowed from a
Kenley
Buttry to
friend.
commanded Ms.
him,
Hamilton,
Louis,
Appellant.
unzip
pants
perform
Loyce
St.
his
oral sex
Buttry
unzip
unable to
but Ms.
Nixon,
Gen.,
(Jay)
Atty.
Jeremiah W.
Sta-
pants.
Kenley unzipped
pants,
Ms.
While
Anderson,
Gen.,
cy
Atty.
L.
Asst.
Jefferson
jumped
Buttry located the door handle and
City,
Respondent.
moving
from the
vehicle.
shot her
the back as she exited the vehicle.
PRICE, Judge.
Buttry,
returned to where he had shot Ms.
Kenneth
was convicted and sen
receiving
but drove on when he saw she was
tenced to death for the murder of Ronald
Buttry
passing
Ms.
aid from a
motorist.
Although Kenley’s
af
Felts.
conviction was
survived.
Kenley,
by this
in State v.
693
firmed
Court
Shortly
midnight,
entered the
after
1985),
denied,
S.W.2d 79
cert.
hold-up.
Blue Moon Tavern and announced a
U.S.
L.Ed.2d
empty
pockets
everyone
He ordered
their
(1986),
Eighth
Appeals
Circuit Court
nobody immediately
and lie down. When
vacated the death sentence with orders to
reacted,
pock-
Kenley pulled
gun
from his
parole
“reduce it to a life sentence without
Felts,
pointed it at Ronald
who was
et and
sentencing procedure.”
conduct a new
Ken
twenty
away.
standing approximately
feet
Armontrout,
ley v.
937 F.2d
1309-10
shouted,
up—hit
He
“This is a hold
(8th Cir.),
denied,
cert.
U.S.
*7
just
you
I’ll kill
like
floor—I mean business.
(1991).
I. pah- with him. get up and leave When warning shot slowly, Kenley fired a reacted A. Kenley told Ms. White over their heads. perform oral sex on that she would have to (Factual Background) changed Kenley then his him or be killed. Kenley during a crime killed Ronald Felts him taking and shot mind about Jenkins Bluff, Missouri, spree Poplar that occurred the face. Jenkins survived. dining January 3 and the the late hours of In Kenley with Ms. White. early January crime left the tavern hours of 1984. The leave, Kenley the station haste to backed spree the culmination of a series of his Kenley got it stuck. planned by Kenley wagon his onto a curb and robberies cousin instead, but car money purchase drugs help to take Ms. White’s gain and to decided bar. keys ear were When preparation In for the grandmother. his Somebody in the store again.” Kenley the kitchen me to do and Ms. White entered were, Kenley that the fifteen- his car and told keys Kenley pointed her found out where Kenley Ken- out of the year-old Spralding hiding keys Lori there. it. As drove were in lot, if manning to her forehead and asked the near- ley put gun parking police his officers police. Although girl approached guns, she had called the by drew their roadblock not, Kenley threat- responded car, Kenley stop. Kenley that she had and ordered anyway. Hoping to to kill her distract not in ened “the odds were because surrendered Kenley, grabbed keys and left Ms. White being read his response his favor.” Kenley her and left officers, the kitchen. followed Kenley told the warnings, Miranda driving, Spralding she was Ms. there. While transport- lucky.” being “You all were While Kenley believing able to trick into White was jail, Kenley asked if the Corning ed to the open to see that she needed to her door person he shot Missouri had died. fogged over. Ms. because the windows were leapt moving ear and ran to from the
White B. Kenley’s gun click but it safety. She heard (Procedural Background) did not fire. a.m., Kenley arrived at At around 12:30 Coachlight Motel. motel was owned The trial, Kenley Following jury was convict husband, Gaultney Truman. Ollie and her the death capital murder and received ed Gaultney Kenley pulled gun on Mrs. trial, Kenley separate penalty. In a money. Gaultney demanded When Mr. en- robbery in the of three counts of convicted office, Kenley pointed gun at tered the kidnapping, two degree, two counts of first said, you. him “I’ll kill I’ve killed al- degree, and one of assault in the first counts you.” ready tonight and I’ll kill Mrs. Gault- convic stealing. capital murder count of click, ney again gun heard the but it did not on direct tion sentence were affirmed struggle A fire. ensued between Mr. Gault- Kenley, appeal by this Court. State ney Kenley being forced denied, 1985), cert. S.W.2d 79 Gaultney office. Mr. re- outside the When L.Ed.2d 900 106 S.Ct. U.S. shotgun, Kenley Gaultney left. Mr. trieved a crimes convictions for the other shots at the radiator of Ms. fired three appeal by the Court on direct were affirmed White’s car while sat the car re- v. Ken Appeals, District. State Southern away. loading gun. then drove (Mo.App.1985). ley, 701 S.W.2d time, police searching By that were post-conviction relief from Kenley sought Clay County, Kenley. Police officers from filing separate two each of the convictions Arkansas, state positioned themselves The motions were con Rule 27.26 motions. Department set Coming line and the Police Kenley v. hearing and denied. solidated south. up block a few miles farther a road State, (Mo.App.1988). This 759 S.W.2d line, two crossed the state When *8 trans Kenley’s application for denied Court him to the roadblock. Ken- pursued officers relief. post-conviction fer from the denial but ley maneuvered around the roadblock corpus writ of habeas Kenley then filed for a patch. The of his car on an ice lost control District for the in the States Court United gunshots police officers disabled the car with Missouri. The federal Eastern District of Kenley fled radiator and front tire. Kenley’s petition. He district court denied police firing three shots at the officers. after to the United appealed that decision then fire, Kenley fired officers returned After the Eighth Cir Appeals States Court escaped a field. shots and across two more Armontrout, Kenley v. 937 F.2d cuit. a.m., Kenley arrived at Shortly after 1:30 (8th nom., denied, Cir.), Delo v. sub. cert. Mart, Corning, Arkansas. Food Junior’s 112 S.Ct. Kenley, 502 U.S. ceiling warning shot into the fired a L.Ed.2d 450 no a car and a driver. When and demanded affirmed the district volunteered, Eighth The Circuit Kenley proclaimed, “I’ve
one regard guilt to the of relief bother court’s denial tonight. once Wouldn’t done killed phase Kenley’s Eighth trial. it to a life sentence without The Circuit and either reduce overwhelming parole sentencing procedure.” held that due to evidence of or a new conduct guilt, prejudiced by was not his coun- . at 1309-10. Id Eighth sel’s ineffective assistance. The Cir- cuit, however, the denial of reversed relief regard sentencing phase. Eighth The sentencing The State elected to hold a new prejudi- Circuit found that trial counsel was hearing. offering all the addition evi- cially failing ineffective for to conduct a rea- original sentencing dence it offered in the investigation mitigating sonable into circum- trial, Kenley’s offered evidence of State Eighth many stances. The Circuit noted prior stealing, conviction for his conviction Kenley’s appointed factors that indicated that during for the other crimes committed sentencing counsel for the first was not effec- spree, eighty-nine prison crime conduct First, only
tive. counsel had been out of law violations, including forty-seven violations school for months at the time three he spree. after occurred the 1984 crime appointed only and had tried one misdemean- robbery began. or trial the time trial Id. The State also introduced evidence of Ken- only logged fifty at 1299-1300. Counsel ley’s stabbing conviction for an inmate while pre-trial preparation hours of Ken- before City he was incarcerated at the Jefferson ley’s sought trial. Id. at 1300. Counsel and Correctional Center. Over defense counsels’ preparing received little assistance in outside objection, prison guard Rollie Brizendine tes- trial, capital the case. Id. Prior to the coun- Kenley pulled that in March out a tified change sel waived an automatic of venue ice-pick began chasing homemade despite publicity Kenley’s wide crimes. yard. Kenley in a fenced recreation inmate dire, During performed very Id. voir inmate, caught the whose hands were cuffed jurors inquiry little into the attitudes of the back, him in the behind his and stabbed capital punishment. capi- toward Id. At the into evidence chest. The State introduced sentencing, mitigat- tal counsel submitted no ice-picks confiscated from two homemade evidence, ing unwittingly made reference to Kenley copy after a certified the incident and Kenley’s testify, object failure to and did not degree of the conviction for first assault. regarding to evidence the deterrent effect of Finally, the State introduced evidence of penalty. the death Id. possession pro- a conviction for Eighth Circuit also identified numer- hibited article in a correctional institution indicating ous factors counsel was utter- hostage related to a incident the Potosí unprepared ly to defend at sentenc- offered evi- Correctional Center. State doctors, ing. Counsel failed to interview two 19,1992, Kenley April that on took the dence Richards, Dr. Manion Dr. who had treat- Judy prison, Ms. Robart hos- librarian diagnosed Kenley past. in the Id. at ed or incident, tage During the for two hours. 1308. Counsel did not review the doctors’ cutting paper Kenley used the blade of file, reports Kenley’s military or which con- keep hostage cutter to Ms. Robart potential tained some evidence of a “extreme prison bay. point, staff at At one personality or emotional disorder distur- prison officialwho swung the blade and hit bance.” Id. Counsel failed to interview fami- Superinten- in to intervene. had been sent ly concerning Kenley’s history witnesses that, Kenley if had dent Paul Delo testified morning his condition on the of the crime. o’clock, by four not released Ms. Robart Id, plan last resort to end the crisis would have *9 plan for put on its that was been into action. The called Based assessment Kenley Ms. Ro- utterly unprepared Kenley, the Delo to distract and tackle to defend prison guard A then shoot Ken- Eighth Circuit reversed the denial of habeas bart. would ley. plan put into action regard sentencing phase relief in to the and was never Kenley around three court “with because surrendered at remanded the case to the district o’clock. into evidence instructions that the State of Missouri be The State admitted possession Kenley’s copy certified of the conviction for required to vacate death sentence library. further prohibited entious in the She of a article in a correctional insti- worker incident, during hostage tution. testified that testi- Kenley appeared drugs. to be on She Kenley represented was at the new sen- harm or make fied that he did not her and tencing trial Karen Kraft Robert full of negotiators threats at the and was Ms. Kraft had tried seventeen Wolfram. Kenley’s mother remorse for his actions. prior capital currently cases to this ease and his fa- relationship testified his with about public serves as the director of the state school, ther, that was often trouble at he capital litigation division. At the defender prob- for that treated emotional and he was Kenley testify, present- hearing, did not but Ken- Farmington Hospital. lems at State through videotaped ed new evidence de- Kenley’s ley’s two testified that rela- cousins position testimony of Dr. Manion and tionship father and with his was strained Manion, a Lois Crownover. Dr. board certi- distant. psychiatrist Kenley fied who had treated teenage years, Kenley’s his testified about evidence, jury At the of the conclusion dysfunctional relationship with father. Kenley be death given that recommended Kenley’s Dr. Manion that concluded behav- penalty. Kenley in ac- The court sentenced problems ioral arose out of his identification jury’s cordance with the recommendation. coping with his father’s methods and ex- anger. pressing Dr. Manion also testified Kenley previously attempted
that suicide. Kenley post- filed a Rule 29.15 motion for Crownover, Kenley that tri- Ms. a social worker conviction relief. contended in the Poplar failing pres- for system, Bluff testified al counsel was ineffective school that she Kenley years ex- experts knew since he was ent medical to rebut the State’s eleven old. Parwatikar, Kenley pert, object Dr. for failing Ms. Crownover described un- and cooperative tantrums, during the child to a number of remarks made who threw went rages, classroom, prosecutor’s closing argument. into wild Dr. Parwati- misbehaved in children, Kenley bullied other made dire kar had suffered from threats testified angry, responsibility personality Kenley when avoided an anti-social disorder. actions, testified unhappy. and was and called three defense witnesses who friendless Kenley’s they Kenley performed Ms. Crownover rela- interviewed testified tionship Kenley’s Farming- with his father was erratic un- tests him and reviewed and military hospital stable. She also ton state records rec- Kenley testified that evaluation, ords, develop relationships psychiatric Dr. Dr. unable to Manion’s his class- department Kenley’s report, mates in school. of cor- prob- Because Parwatikar’s school, Kenley, lems at home Ms. rections and the Crownover files Kenley’s regarding witnesses recommended that he be taken out of his numerous home, background. and that Each concluded that Dr. Par- he be evaluated Dr. Man- that, Finally, incom- Kenley ion. Ms. watikar’s assessment of Crownover testified inaccurate, plete spree, about two months the crime further investi- before serious Kenley gation visited her would have uncovered more and told her he need- Dr. psychiatrist psychological or emotional disorders. losing ed a because he was con- Ken- trol. Smith and Dr. Peterson concluded that capacity at ley had diminished the time of psy- also introduced evidence crime and that he suffered from a borderline chiatric records related to his treatment personality disorder. Farmington hospital. Additionally, state Kenley’s report psychiatric into records father’s treat- introduced Finally, diagnostic created with Dr. ment were introduced. testimo- from a interview witnesses, Robart, including report gave accounts ny of four Ms. Peterson. The detailed prison Kenley’s from his hostage librarian was taken life childhood who mother, by Kenley, Kenley’s preceding spree. two months the crime The re- of Ken- cousins, port of the ley’s introduced. Ms. Robart also described account good night events of the testified that was a consci- murder. *10 Kraft, (3)
also offered the by prosecutor; of Karen statements represented Kenley who at the re-sentene- trial overruling Kenley’s objec- court erred in ing. Ms. Kraft testified that tion Kenley’s she made a to the admission of conduct decision, incarceration, conscious during after discussion with co- after his conviction counsel, murder, to not Kenley overruling Kenley’s re-evaluated. To motion to support his circumstance, contention that aggravating counsel was inef- strike an overrul- failing object prosecu- fective for ing Kenley’s objection prosecution to the giv- to the remarks, Kenley questioned tor’s ing summation, Ms. Kraft argument during rebuttal propriety about of the remarks in submitting the reasonable doubt in- objectionable. whether the remarks were struction. evidence,
At the close of the
the motion
stated,
court
ruling
“Court will render a
II.
writing
you
and furnish it to
in due course.”
point
appeal, Kenley
his first
days
Six
after the close of the Rule 29.15
argues
by
that the motion
adopt
court erred
hearing, the
four-page
motion court issued a
ing
proposed
in whole
findings
the State’s
judgment denying Kenley’s
point
thirteen
findings
Kenley
the amended
of the court.
post-conviction
motion for
relief.
In re-
proposed
findings
asserts
were bi
sponse,
attorney general
requested more
ased and misstated the evidence and that the
findings
detailed
of fact and conclusions of
adoption
motion
findings
court’s
of those
law in order to
meaningful appellate
facilitate
independent judicial
reflect an
evaluation
attorney general
review. The
submitted a
Kenley
the evidence.
claims that his con
twenty-nine page proposed judgment. The
rights
stitutional
were violated
the court’s
attorney general
Kenley’s attorney
notified
judgment.
request
of its intention to
more detailed find-
law,
ings
supplied
of fact and
conclusions
The trial court retains control over
copy
proposed findings
Kenley’s
of its
judgments
thirty days
entry
after the
attorney,
Kenley’s
and recommended that
at-
vacate,
judgment
reopen,
and can
cor
torney
proposed findings.
submit
Kenley
rect, amend,
judgment
modify
or
its
within
objected
proposed
neither
findings of
cause,
good
giving
time for
after
fact and
conclusions of law submitted
parties
opportunity
to be heard. Rule
attorney general nor submitted an alterna-
given
75.01.
notice of the State’s
proposed
tive
findings of fact or conclusions
proposed findings
intention to submit
adopted
law. The motion court
the attor-
supplied
a copy
proposed
of the State’s
ney general’s
findings whole as the amend-
however,
findings. Kenley,
propose
did not
ed
of the court.
motion for
any findings of his own and did not raise his
post-conviction relief was overruled.
objection,
any
objec
constitutional
other
tion, to
proposed findings.
the State’s
To
preserve
review,
appellate
constitutional
appeals
now
opportunity.
his sentence of death
claims must be made at the first
(Mo.
Parker,
overruling
and the
of his Rule 29.15 motion. State v.
886 S.W.2d
(1)
1994),
denied,
alleges that:
the motion court
banc
cert.
514 U.S.
by adopting
prosecutor’s
erred
in whole the
261 Moreover, at- findings, Dr. Cowan could adoption of the 1984. review court’s criminal Kenley. to tribute Movant’s behavior review would offer no relief impairment he suffers. pro Adopting part party’s of a all or are rec- 37.Finally, there no medical posed findings, by adopting or reference conclusion support Dr. Cowan’s ords motion, party’s a a wording of has become injury Movant closed head that suffered practice among lawyers judges common and during a accident. at birth or car either criminal and civil State in both cases. Moreover, condition the fact that Movant’s 1994). White, S.W.2d intoxi- may of self-induced be result thoughtfully careful long As court alcohol or the result drugs cation from or findings ly parties’ proposed considers Mov- ear that occurred while of a accident content, agrees with the is no there high driving was intoxicated and ant adopt problem with the constitutional court little speed, garners sympathy rate part findings in whole or in of fact ing his condition. by and conclusions of law drafted one of White, parties. supra, at 600. find “Those supports the mo- Evidence the record workings ings, though product not the of the Dr. finding paragraph 35 that tion court’s his; mind, formally judge’s of the district are persuasive wit- was not a credible Cowan out-of-hand, they rejected are not to be Dr. Kenley’s damage. brain regarding ness they supported by will stand if evidence.” Dr. is in conflict with conclusion Cowan’s Co., United States v. El Paso Natural Gas. Peterson’s, Parwatikar’s, and Dr. Smith’s Dr. 651, 656, 1044, 1047, 12 84 S.Ct. U.S. First, Kenley. expert medical assessment L.Ed.2d Kenley’s cognitive dif- Dr. attributed Cowan general asserts in which four areas or- dysfunction lobe ficulties frontal by findings supported the court’s were not Dr. Peterson ganic damage, brain whereas independent and did not reflect are “[cjognitive testified that difficulties judgment the court. Our examination of depression.” Dr. symptom of Co- common record, however, proves otherwise. Kenley’s angry attributed outbursts wan impulse dam-
poor control due mild brain Ken- age, Dr. Peterson that whereas claimed A. poor ley upbringing learned from his Kenley challenges the motion court’s swings, control—actually, impulse “mood 35, 36, findings regarding the testimo attacks, anger, an- through rage intimidation ny of Dr. Cowan. The three of fact response, anger”—was ger unbridled relating to Dr. most testimony Cowan’s are relationships. Dr. testified norm for Smith easily together: evaluated when read ag- poor impulse control and Cowan, psychologist, Dr. 35. Dennis fa- from his gressive behavior were learned suffering testified Movant attributed behavior. Dr. Parwatikar ther’s damage. opinion mild brain In the of Dr. personality the outbursts to an anti-social damage this brain is the result Cowan disorder. or a chronic substance abuse closed head Dr. trauma. does find Co- Court Second, Ken- Dr. assessment that Cowan’s his wan to be credible or be poor ley’s damage manifested in brain persuasive. report that memory supported is not eleven prepared Even to credit Dr. Peterson if the Court were report, spree. in- In that testimony, years little after crime Dr. Cowan’s offered innumerable details mental the time remembered sight Movant’s state at life, burglaries twenty he committed culpability the offense or Movant’s November, testify during as to October and acts. Dr. could not Cowan spree, damage days preceding the crime Movant the brain events when sustained crime he committed now Dr. Co- the details of each he contends Movant suffers. con- spree. This assessment also certainty during wan could not state with 3-4, diagnosis January Dr. impaired on flicts with Smith’s Movant was *12 events, memory had “fair supports for remote in ade- Evidence the record the mo- quate memory.” recent tion findings paragraphs court’s in 36 and 37 testify that Dr. not Cowan could as to when Third, Dr. Cowan testified that Dr. Parwa- Kenley damage, brain sustained that Dr. Co- tikar’s Kenley only assessment that suffered certainty wan could not state that Ken- disorder, from an personality anti-social murder, ley impaired night was on of the damage, brain was in- inaccurate and support and that no records medical Dr. complete. Dr. Parwatikar based his conclu- Kenley Cowan’s conclusion that a suffered partly sion on of a the results Bender-Ges- injury. closed head Dr. Cowan his based talt performed Kenley. test Dr. on Cowan Kenley conclusion that suffered from brain criticized that inaccurate test as and outdat- damage unsupported hypothesis on an assessment, however, ed. That is in conflict birth, damage by forceps caused the use with what expert defense Dr. Peterson testi- testimony unsubstantiated of a trauma to fied. Dr. that Peterson testified the Bender- Kenley’s head that occurred sometime be- good very Gestalt test is “a test.” ages eighteen, tween the of sixteen con- in supports the record also Evidence troverted evidence chronic substance finding the motion paragraph court’s in 36 abuse, purported memory deficits in that Dr. Kenley Cowan’s assessment of of functioning, reasoning, abstract decision fered little insight Kenley’s into mental state making, judgment, problem solving, speed of night on the crimes. Dr. Cowan’s mentation, complex motor functioning. opinion Kenley’s that mental state on the however, testified, Dr. Cowan that he did not night of the murder was one of uncontrolla allegedly know when the car accident that “gut ble responses supported level” is not damage Kenley’s caused brain occurred and police report, Kenley’s account to Dr. that he did not have medical or records a Peterson, eye testimony, witness which police report that verified occurrence of represented Kenley as cool and deliberative acknowledged the accident. He also that he during planned spree. a crime Evidence concluding had no forceps “basis for that the Kenley sport demonstrated that broke into a procedure damage.” resulted in brain Dr. goods ing guns Kenley store to steal and that acknowledged Cowan that he could not testi- practiced target shooting. Evidence further fy “Kenley’s impairments that him caused Kenley shot demonstrated that Ronald Felts commit these crimes.” in order to establish control of the Blue Moon Tavern. He chose not to shoot fif a Finally, finding the motion court’s teen-year-old girl hiding in the Blue Moon paragraph attributing Kenley’s that men Tavern, having placed gun after to her tal gar state to alcohol or substance abuse Kenley planned forehead. to wear a ski sympathy, supported by ners little robberies, mask to commit but cross-examination, then de evidence. On Ms. Kraft cided not to wear one into the Blue Moon acknowledged claiming drug and alcohol Tavern because he “get he knew would mitigating always abuse as a factor “is not regardless.” occasions, case On numerous sympathy something jury.” causes Kenley already warned that he had killed acknowledged She further that such a claim night again kill if he would needed aggravating can be as an factor seen some police to. having After eluded one jurors. shoot-out, Kenley turned himself when he findings regarding The court’s Dr. Cowan by police surrounded and “the odds were supported by are in the record and Cowan favor.” Dr. never read the judicial reflect an evaluation. individual transcript police report trial or of the
events and never questioned about B. circumstances of crimes. As the noted, Next, challenges motion court Dr. Cowan’s testimo the court’s ny to helpful, regard have been Dr. Cowan Dr. Smith’s needed directly diagnosis tie his in a state of ac diminished night capacity spree tions on the crime. the crime at the time of due to that Movant had on do not indicate records personality disorder intoxication. a There is no problem. abuse substance Dr. court did not find Smith’s assessment receiving seeking or of Movant record unable to deliberate problem. abuse treatment for substance be credible. criminal acts to criminal acts has committed other Movant Smith, psychologist, 38. Dr. Robert drugs influence while not under the behalf. Dr. also testified on Movant’s *13 testify he that alcohol. Movant did suffering Alco- diagnosed Smith Movant as is problem. There had a abuse substance Dependence, Dependence, and hol Cocaine sustaining Movant’s no objective Dependence. Dr. Smith also di- Sedative drug a or he from claim that suffered agnosed suffering as from Bor- Movant problem. alcohol Dr. Personality Smith derline Disorder. to the doctors 42. Movant’s statements activity attributed Movant’s criminal problem are his substance abuse regarding drug Dr. Smith his conclu- abuse. based inconsistent, contradictory and further drug sion that Movant suffered from unreliability. Movant highlighting their dependence on alcohol Movant’s self-re- shortly after of- Parwatikar told Dr. ported drug use. he was under the influence fense that goes saying It that 39. almost without at the time of the drugs or alcohol expert’s opinion good is as only an he Movant Dr. Smith that offense. told opinion. upon facts which he that bases at the influence of alcohol only was under Likewise, opinion very expert’s is worth however, Movant, the time of the offense. if little not establish that defendant does in addition to con- told Dr. Peterson that facts in expert relied on are fact he at least one suming alcohol had smoked true and accurate. There is no evidence marijuana contradictory cigarette. These had a the record that Movant has or sub- unreliability of underscore the statements problem. stance abuse concerning self-reports his histo- Movant’s Although 40. doctors testified ry drug use or abuse. case he reported that Movant that has opinion Mov- 43. It is Dr. Smith’s that abusing drugs since been and alcohol suffering ant from these disorders was approximate age of finds this the Court the offenses and was under time of hearsay, evidence unreliable it is because at the time he the influence of alcohol oppor- because has the Court not had person- Based on Committed the crimes. tunity credibility assess Movant’s intoxication, ality Dr. Smith disorder statements, and the doctors un- because in a state of concluded that Movant accepted questioningly state- Movant’s capacity to de- and was unable diminished drug ments of and alcohol abuse while at acts. The Court on his criminal liberate acknowledging that same time self- Dr. to be credible. does not find Smith inherently reports drug use are unrelia- penal- The Court has reviewed the ble. testimony ample ty-phase and finds evi- persons 41. None of the who knew to, capacity Movant dence that had prior Movant to 1984 indicated that Mov- fact, on his actions that did in deliberate problem. ant had a substance abuse Nei- Moreover, Dr. night. account to Movant’s testimony nor her ther Mrs. Crownover’s thoughts while Peterson of his actions and Movant crimes, records reflect she believed shed committing these further drug problem. had a or alcohol The ability to reason and light on Movant’s Farmington Hospital do not Likewise, State records the Court finds deliberate. abusing using Movant or indicate that inconsistent with Movant’s actions are testimony impairment sug- Dr. drugs. degree Neither Manion’s intoxication or she evidence taken gested by nor her records indicate that believed Dr. Smith. This abusing drugs. together or Dr. Parwatikar’s Movant alcohol capacity to know family that testified that Movant had the None of the members wrong con- right to conform his that Movant on Movant’s behalf indicated reasons, law, among other pris- The duct problem. abuse had a substance reject leads the drugs. military, Court Dr. testi- prison, Smith’s cohol or None of the mony. hospital or records documented substance problem any abuse efforts treat such a findings The court’s seven dealing of fact problem. acknowledged Dr. Smith that Ken- with Dr. all Smith relate to his conclusion ley had committed other crimes while not suffered from a substance abuse drugs. under the influence of problem, capacity which diminished his reason and deliberate. finding paragraph The motion court’s Kenley’s self-reports of substance paragraphs motion court’s abuse are because the conflict- unreliable 38 and 40 relate to evidence of accounts, ing supported by evidence in the alleged alcohol abuse. in the rec- Evidence record. record indicates that supports ord finding motion court’s gave three different of what paragraph accounts sub- Dr. Smith’s conclusion stances he used he ingested and how much suffered from substance abuse *14 night spree. on the of the He primarily reports was crime told Dr. Kenley’s based on of any that drug Parwatikar he did not use alcohol or and alcohol abuse. Dr. Smith testified drugs night that on the Dr. Kenley he concluded that of the crime. Smith suffered from problem Kenley that to by conducting drinking substance abuse testified admitted Michigan to four Screening Alcohol and the twelve fourteen beers and shots of Test Drug Screening Kenley. Kenley Abuse Test to Dr. whiskey. reported on Dr. Peterson Smith further testified that the drank results that he at least twelve beers and gleaned provid- tests were marijuana cigarettes, the answers seven eight smoked or by Kenley. ed liquor. but not drink did hard supports Finally,
Evidence in the record also paragraphs 44 of the mo- 43 and paragraph court’s in finding supported by the self- findings that tion court’s evi- are reported substance abuse evidence unre- dence in the is no credible record. There liable it was hearsay because and because Kenley evidence that was intoxicated while Kenley’s experts acknowledged that self-re- he committed the crimes. One witness testi- ports drug inherently of use are deposition unreliable. at alcohol fied that she smelled Kenley’s self-reports drug breath, of Kenley’s sentencing use were hear- but say statements. The statements were made alcohol remember whether she with- smelled prove goading out-of-court and were used to the truth counsel. out the of defense Four of Kenley Kenley matter asserted—that abused other witnesses did not testified that Sutherland, drugs. appear See State v. S.W.2d during spree. drunk the crime 1997). Kenley’s state- Moreover, Dr. conclusion that Smith’s ments are unreliable because he never testi- Kenley incapable deliberating of on the regard alleged fied in in court to his sub- night comport of murder does not with problems. stance abuse The court could not Kenley’s diag- account to Dr. Peterson judge credibility the statement. Kenley’s nostic interview. account of his Moreover, Dr. Cowan warned that self-as- examples spree replete crime with of his by people with sessments “chronic substance reason, ability plan, deliberate. The “might abuse” not be the as- most reliable report Kenley indicated reasoned that sessments of themselves.” Dr. Peterson good target Inn the Kater would be a be- criticized as unreliable Dr. Parwatikar’s ac- money regis- would cause it have extra ceptance Kenley’s own sub- accounts his ter from the recent New Year’s celebration. stance abuse. Kenley planned Buttry, When saw Ms. he supports Evidence in the kidnap purposes record mo- her for sexual and then kill findings tion in paragraphs court’s 39 and 41 him. nu- identify her so she could not On objective occasions, that there was lack of evidence merous warned that he problems. again substance abuse None of before kill if he had killed and would Kenley prior robbing truckstop the defense witnesses who knew had to. He considered Manion, 1984,including family, get away his Dr. but that he reasoned could not Crownover, Mrs. al- a ski testified that he abused it. He decided not mask wear product actions were not the “get felt he the ease that Movant’s because he would Dr. This finds psychomotor rage. Court police were regardless.” felt that the testimony persuasive Parwatikar’s be on his so rob the trail he decided to Coach- Movant’s his conclusion that credits light flight Inn to his to Arkansas. finance rage not the result of a reac- actions were When he realized that “the odds were not tion. favor,” Kenley police. his surrendered to the that, “Kenley was Dr. testified Peterson findings regarding Dr. court’s Smith socialization, normal con- deprived normal supported by are evidence in the record anger, greatly contributed trol of judicial
reflect an individual evaluation. things he night. behavior anger deprived normal con- C. of included trol; was under influence of he challenges the court’s next alcohol, had well known to induce which been pertaining of Dr. Therefore, prolong rage attacks him.” Peterson. paragraph supported by 45 was Stephen Dr. Peterson also testified the record. diag- on Movant’s behalf. Dr. Peterson supports also Evidence in the record Major suffering nosed Movant as from a in paragraphs court’s conclusion motion Disorder, Dementia, Depressive Polysub- provoked was not into Dependence, Personality stance Borderline *15 reacting rage. Evi- anger and was not Disorder, Severe, history and a of closed days prior to the that a few dence shows trauma. Dr. his head Peterson offered spree, Kenley sporting broke into a crime opinion deprived that Movant had a devel- guns, purchased a goods store and stole some opmental opinion background his that and ammunition, practiced sharp- his of and box Movant’s criminal behavior was due to shooting. that had a Evidence shows rage impaired ability to reaction that committing history planning burgla- of and impulses. Dr. control violent Peterson that, to get shows in order ries. Evidence on attributed Movant’s criminal conduct planned money, Kenley the robberies that 3-4, January to an uncontrollable to the Felts. When he led murder Ronald rage. The Court does not find Dr. Peter- entered each of three establishments that worthy testimony son’s of belief. night spree, robbed on the of the crime he he Dr. opinion 46. Peterson’s is inconsis- progress. hold-up was in announced that night tent with Movant’s behavior on evidence, for the From this it was reasonable question. Movant’s actions were not reac- found that to court intended provoked anger. tive. Movant was into at each of loca- commit armed robberies go Movant chose to to the Kater Inn and actively creating he tions and that purpose committing went there with the of situation, reacting merely to the situa- robbery. go an armed Movant chose to tion, ultimately that of Ron- led death the Blue Moon Tavern went and there Felts. ald purpose committing of an rob- armed Furthermore, the mo- supports evidence bery. go Movant chose to to the Coach- finding Dr. that Peterson’s testi- tion court’s light pur- Inn and he went there with the rage during mony Kenley’s alleged of state of pose committing robbery. an armed of spree crime with Ken- was inconsistent reacting Movant was not to his situation. II-B, ley’s night. See behavior Section actively creating He that situation supra. ultimately to the death of Mr. Felts lead injury and the serious of two others. Dr. findings regarding Peter- court’s Moreover, intro- there was no evidence in the record supported son are evidence penalty-phase judicial at the that indicates duced evaluation. and reflect individual rage in a of at the that Movant was state D. spree. the crime
time of
Finally, Kenley challenges the motion
testimony
incon-
Dr.
is
Peterson’s
of Karen
finding
conclusion court’s
with Dr. Parwatikar’s
sistent
Kraft was
allegedly
credible because Kraft
cumstances did not warrant death. Strick-
land,
representation
695,
supra,
ineffective in her
of Ken-
at
mination whether the and conclu clearly of sions the court are erroneous. A. 29.15(k); Parker, supra, Rule see also at 929. assistance, prove To ineffective Findings clearly are conclusions errone the per defendant must show that counsel’s only if, after a review of the entire ous degree formance did not conform to of the record, appellate the court is left with the skill, care, reasonably diligence of a com impression definite that mistake has been petent attorney, the defendant Parker, supra, 929. made. thereby prejudiced. Washing Strickland v. ton, 687-88, 668, 2052, 466 U.S. 104 S.Ct.
2064-65, B. (1984); 80 674 L.Ed.2d State v. Wise, (Mo. 1994), S.W.2d banc denied, 1093, 115 757, 130
cert.
513 U.S.
S.Ct.
(1995).
prove
To
prejudice,
support
L.Ed.2d
the
To
his claims
Points II
defendant must
probabil
show “reasonable
and III of his brief that defense counsel was
that,
ity
errors,
but for counsel’s
result of
to call
the
ineffective because counsel failed
one
proceeding
expert
would have
to rebut
been different.”
or more
witnesses
Dr. Par-
Shurn,
testimony
S.W.2d
State
watikar’s
and because defense
1993),
denied,
present
Kenley’s
cert.
513 U.S.
115 counsel failed to
evidence of
murder,
In
night
uncovered. psycho- to do a whether not did discuss at the time logical of Kenneth evaluation independent psychia- Dr. Parwatikar if I don’t recall representing him. we were part-time depart- trist who works giving records specifically we discussed Kenley’s counsel ment of mental health. records, person evaluate the to another trial, requested prosecutor, the first not the anyone the records to give we but did Dr. evaluation of men- Parwatikar’s else to evaluate. trial, tal At Dr. stated condition. Parwatikar eighty that he has testified for defendants ‡
percent he ‡ ‡ of the times that has been asked ‡ testify. has He also that he testified Q. you the review of Were aware from over fifteen hundred forensic eval- conducted testing Dr. Parwatikar’s records persons of crimes. Dr. uations accused trial, intelligence— from first Parwatikar concluded that did that his brain—that that he stated damage, capacity from suffer brain had dysfunction- intelligence organic brain right wrong, to know from and was able ing, that his tests were inconclusive? conform his conduct to the law. report, If in the we would A. that was Kraft, currently Ms. who serves as it, yes. aware of have been capital litigation director division Well, that, you Q. consider knowing did public system, the state defender testified having get some more Kenneth tested to capital tried cases she had seventeen conclusive data? prior hearing. She further testified or not to have A. We considered whether that she and her co-counsel discussed wheth- re-evaluated, and we did not. Kenneth get any psychological er to additional evalua- Q. Okay. you Do it would have believe tions: trial, helpful prior been to know counsel) (By defense over, you that Kenneth retrial that were Q. reviewing you the records that did organic damage? brain suffered have, you concerns helpful, A. I it could have been believe maybe Kenneth needed have further *17 yes. evaluations. Q. thing the sort of youDo believe that’s Kraft) (By Ms. jury? present you would want to or A. We—Bob and I did discuss whether (Discussion propriety to of with court as any not to do additional evaluations question) psychologically, yes, Kenneth we did. been, yes. ItA. could have [*] [*] [*] [*] Q. Why do you think it would have been mitigating? you any Q. Did know have reason to or jurors possible that are who A. It’s there possibility there a that Dr. believe that that would considered evidence have to might called at the retrial Parwatikar be out of his own would take crime more testify again that anti-social Kenneth had therefore, and, may have voted for control personality disorder? op- parole as a of life without sentence presented that if we A. We were aware of death. posed to a sentence status, that Kenneth’s mental evidence of at time of Q. you if had known this So be called as a wit- Dr. Parwatikar could trial, presented you that evi- have would ness, dence? that, you Q. Understanding consider pre- possible that we would have you A. It’s that did have
giving the records it, someone, yes. sented independent expert, defense cross-examination, Moreover, Kenley proven preju- On Ms. Kraft admitted has not First, offering mitigating that evidence sometimes as we stated in II of this dice. Section opens the opinion, testimony door other evidence that could of the three medical damaging. be She also admitted that if she experts speculative. conflicting re-evaluated, had Kenneth the evaluation experts Each of the three had a different might Dr. have confirmed Parwatikar’s as- theory why Kenley supporting behaved the acknowledged sessment. Ms. Kraft further way night on he did of the murder. All that, incarcerated, Kenley because it was experts three relied incredible evidence of possible that State could have discovered substance abuse or unsubstantiated stories of damaging the results of a evaluation. Final- experts Additionally, head trauma. all three ly, juries Ms. Kraft testified that are not Kenley concluded that was unable to deliber- always sympathetic to evidence substance during or ate control his actions the crime. or use abuse. spree many Evidence of the crime indicates Kenley instances when deliberated Crownover, witness, Mrs. a defense testi- planned testimony events advance. Kenley that fied she saw two months before experts reinforces the conclusion that an the murder and she concluded he knew additional have to con- evaluation could led right wrong As at the time. we noted flicting potentially damaging evidence. II-B, in Section the evidence of the crime spree replete is instances Second, much of the evidence offered deliberating, reasoning, planning. post-conviction hearing relief of abuse
It was for defense not reasonable his father and substance abuse was cumula- light have re-evaluated in of Dr. presented tive to what had been at trial Parwatikar’s and Mrs. Crownover’s Manion, testimo- testimony through the of Dr. Dr. ny at Parwatikar, trial and the evidence adduced about and Mrs. Crownover. Evidence spree. the events of the crime Counsels’ during spree of intoxication the crime had representation presumed ef- been through been introduced at trial the testimo- presumed fective and their decisions are Therefore, Buttry. ny jury Sandra strategic. Kenley have been failed to adduce already the opportunity had to assess that evidence defense counsels’ decisions and consider it for purposes information strategic were not decisions. Ms. Kraft tes- mitigation. consciously that she
tified and her co-counsel overwhelming Finally, light ag- decided, discussion, after to have statutory gravating ag- circumstances—two cross-examination, re-evaluated. On Ms. gravating seven circumstances and non-stat- acknowledged having Kraft a defen- utory aggravating circumstances—and the strategic dant re-evaluated can be a decision evaluation, speculative value of further there damaging to avoid of other the admission probability po- is not a reasonable All this demonstrates evidence. tentially mitigating offered expe- decision was made between two jury give would have caused the attorneys pursue trial not to cer- rienced *18 It different sentence. was not error for the investigation, tain of possibly line which could motion to find court that counsel was not damaged Kenley’s have further case. ineffective. Kenley impropriety has no in the asserted of initial selection Dr. Parwatikar. Absent this, obligated shop defense counsel is not to an expert might provide support
for
who
his
in Point
witness
contention
testimony.
Taylor,
failing
more favorable
State
IV
counsel was ineffective
to
(Mo.
209,
1996),
evidence,
investigate
mitigating
929 S.W.2d
banc
cert.
and offer
-
denied,
-,
Kenley
U.S.
S.Ct.
asserts that additional evidence
(1997);
Mease,
disability
L.Ed.2d 222
State v.
842 mental
or substance abuse would
denied,
1992),
pre
mitigating
Kenley
cert.
S.W.2d
have had a
effect.
918, 113
testimony
expert wit
508 U.S.
Contrary Kenley’s mitigating to argument. closing alleged errors presented sentencing the at evidence trial court erred alleges that the Point VIII trial. Defense counsel offered evidence of rebuttal time dur- allowing prosecution the life, Kenley’s dysfunctional family his inabili- alleges V ing closing Point arguments. ty along peers, to his violent get with his finding the court erred in motion outbursts, compassionate manner in his failing object to to a number ineffective dealing with Mrs. Crownover and Ms. Ro- closing prosecutor in the statements made testimony bart. Defense counsel also elicited argument the trial court erred and that concerning Kenley’s and read documents fa- sponte. arguments sua prohibiting ther’s abusive nature. mental abilities and Testimony sub- introduced A. Furthermore, problems. de- stance abuse mitigating these fense counsel touched on Kenley contends that the trial court during closing argument. circumstances prosecution open allowing to erred summation. also contends close the Second, acknowledged during Ms. Kraft him to violate prejudiced error so as that evidence of substance cross-examination to a process, right to his fair right due aggravating abuse can be seen as an circum- trial, to free cruel and stance, right be opposed mitigating to circum- punishment the United States Therefore, unusual under it for trial stance. was reasonable the Missouri Constitution. prevent counsel to to Constitution and avoid such evidence damage Kenley’s further case. January on Ronald Felts murdered Third, mitigating presented evidence 3-4, governing penalty- 1984. The law by Kenley that substance abuse and brain on phase degree murder trial of a first damage inability caused his to control his prosecuting provided that attor- “[t]he date light behavior was incredible in of the facts ney open shall con- and the defendant shall spree. replete crime The record is jury judge.” argument clude Kenley reasoning, with instances of deliber- 565.006.2, provision RSMo 1978. That See. ating, planning. 1, 1984 and the repealed on October prosecutor allow the statute was amended to
Fourth, only offered argument.” “open close the Sec. support the contention that de 565.001.1, The amendments to failing to RSMo fense counsel was ineffective for 199k. only chapter offenses committed investigate mitigating apply and offer evi more expert July dence was of the three the murder of after 1984. Because during the Rule 29.15 mo witnesses called date Mr. Felts occurred before effective above, hearing. amendment, tion As we noted defense should been shop failing counsel is not ineffective for argument. State allowed close expert find will around to witness who erred, but that the trial court de- conceded testify favorably. Taylor, supra, more on prejudicial nied had a effect error 225; Mease, supra, at 114. Kenley. overwhelming Finally, light ag- reversal Trial error warrants statutory ag- gravating circumstances—two only prejudicial effect if has seven non-stat- gravating circumstances and *19 addressing the court er In trial defendant. utory is aggravating circumstances—there appeal, preju rors on we review direct poten- probability a that the not reasonable error, only if dice, will reverse not mere tially offered mitigating evidence deprived prejudicial it the so error was jury give the to would have caused differ- a fair trial. State v. McMil the of the mo- defendant ent sentence. It was not error for 82, (Mo. banc), lin, cert. de 98 not inef- 783 S.W.2d tion court to find counsel was 225, 881, nied, 111 112 498 S.Ct. U.S. fective. 270 179, 994, Why reh. 498 111 penalty?
L.Ed.2d U.S. do have denied[ we the death The 543, 112 (1990). penalty reason S.Ct. L.Ed.2d 552 we the death is be- right cause people the of the innocent to procedure allowing The of current the bounds, live outweighs—by huge leaps and prosecutor argument to close does not violate outweighs right guilty the of the not to die. process due result in unfair sentencing or right The completely of the innocent out- proceeding. Closing argument by attor- the weighs right die, guilty the of the to not neys is not evidence to be considered the and, so, it to one thing. comes down basic jury. closing argument important While is in important you? Whose to life more ease, Barton, penalty a death see v. State Whose has life more value? The Defen- 781, 1996),allowing S.W.2d the dant’s or [the victim’s]? prosecutor impinge rebuttal did not on de- Storey, at 902. we Id. In noted that the argue fense to opportunity counsels’ case. the argument law misstated the because sim- Although Kenley generally claims that he plified penalty thing.” “one the death basic right being lost valuable not able to balancing argu- Id. The of the value of lives close, he any specific has not or established ment was couched the inference that the prejudice procedure actual from the followed. only purpose penalty of the death was to Point VIII is denied. argument poten- balance the lives. Id. This tially jury misled into believing the that the only inquiry required was whether the value B. of the victim’s life exceeded the value of allegedly raises eleven of claims whole, argu- defendant’s life. Taken in improper argument by prosecutor during the duty is clearly ment erroneous because the of closing argument. Kenley trial asserts that jury considering the includes all of the evi- failing prohibit improp- court erred in dence, instructed, applying it is law arguments er or declare mistrial sua balancing aggravating mitigating sponte. Kenley alleges further that the mo- Furthermore, Storey, we circumstances. tion finding court erred not coun- defense argument prosecutor’s held that the errone- object sel failing ineffective for to these ously lumped persons of guilty all found mur- allegedly improper arguments. Analysis of category. into der one Id. challenged the eleven remarks indicates that ease, balancing In this of the value of categories: remarks fall into three re- thing” lives was not “one labeled the basic or improper; marks that were not remarks that being purpose couched terms of it the sole arguably improper object- were were but not penalty. jury of the death The not as a strategy; ed to of matter reasonable trial potentially believing only misled into that its arguably improper and remarks that were balancing inquiry was the of the of value prejudicial. but not fact, argument in this lives. case immediately preceded by prosecutor’s 1. Weighing the Value Lives balancing and miti- aggravating discussion Additionally, gating circumstances. prosecution’s Kenley challenges the prosecutor erroneously lump per- not all argument weighing the value the victims’ guilty catego- sons found into murder one against lives value of life. prose prosecutor ry. Because the discussed the argued: cutor balancing aggravating mitigating of the Ladies gentlemen, right circumstances and did not minimize the outweighs innocent to far right live inquiry thing”, “one basic death sentence guilty I you— die. And ask prosecutor’s jury’s argument allowed the whose life has more value here—the De- inquiry on an decision rest individualized fendant’s Ronnie Martin Felts. of the character and record this individual offender, Oklahoma, is precisely Kenley. contends See v. Romano argument prejudicially which was be found to 512 U.S. Storey,
erroneous in
argument
State
S.W.2d
L.Ed.2d 1
*20
(1995).
Storey,
In
prosecutor
the
argued:
improper.
Copeland,
State v.
928 S.W.2d
—
denied,
see the
1996),
did not
the brother
dence because
cert.
Second,
argument was cal-
-,
the
with his
instead of
Lucky
Wins
couple
it up
radiator had raised
argued: “I
prosecution
wonder
then,
and had killed this man
inches
lucky.
Buttry
I
if
she was
Sandra
thinks
would
headline
have screamed—“Man de-
jumping
that car
she was
from
wonder as
wife, kills
fends
murderer.”
in the
took a bullet
back.”
she
If the clock had struck 4:00 at the Potosí
improper per
that this amounts to
contends
Correctional Center and Paul Delo would
facts
the rec
arguing
sonalization or
outside
Robart,
have tackled Ms.
officers would
argument
improper per
was not
ord. The
they
have
ordered
come
were
personal
suggest
It
sonalization.
kill
shoot
this man
order to defend
jurors
if
danger
or their families Ken-
yes,
themselves. And
there
have
would
ley
acquitted.
were
investigation
been an
it would
justified”.
been determined “actions
by a
Storey,
argument
In
that an
we found
prosecutor that included
word “wonder”
argument is identi-
contends that this
into
unsworn wit-
Storey,
prosecutor
argument
supra,
at 901-
turned the
cal
supra,
Storey,
Storey,
at 901. In
how-
found
ness.
which this Court
to be reversible
ever,
prose-
testifying by the
Storey,
prosecutor argued
amount of
error.
in this
justi-
outweighed the amount
case.
been
cutor
brother would have
victim’s
case,
merely an
“wonder” was
had
In this
killing
fied in
the defendant if he
wit-
Buttry suf-
way
arguing
that Ms.
inartful
nessed the brutal murder.
Id. at
We
her
greatly
fered
misfortune
argument
improper for four rea-
held that
Kenley. Failing to ob-
meeting
First,
chance
argued
facts outside the evi-
sons.
*21
jeet
proper argument
ley’s prison
to this
was not
improved,
pros-
ineffec-
behavior had
tive assistance.
ecutor stated:
She
apologizing
Judy
talked about
to
Kenley
5.
Deserved the Ultimate Punish-
gentlemen,
Robart. Yes. Ladies and
I
ment
you—Kenneth Kenley
submit to
knew he
prosecutor
The
argued:
going to
front
was
come back in
of some
jury
that he was going
somewhere and
to
This Defendant deserves the ultimate
be
for
punishment.
jury
that
to consider
He
penal-
deserves the death
would it
be in his
ty-
go
not
best interest to
to
apologize?
this
woman
you
I want
Now
to consider what evi-
you
throughout
dence
have heard
thing
The same
with these conduct viola-
trial_
course of this
tions ....
Kenley contends that
this constitutes im-
perhaps
along
way
But
somewhere
it
proper
expression
personalization or
maybe somebody
dawns on him or
tells
prosecutor’s opinion.
argument
The
is not
you’re
to
him—“Hey,
going back
trial soon.
improper personalization.
prosecutor’s
A
Toe the line.”
of personal opinion
statement
or belief not
Kenley
that
asserts
this statement consti
evidence, however,
drawn from the
is im-
improper personalization
opinion
tutes
Jackson,
proper.
State v.
499 S.W.2d
however,
(Mo.1973).
may
party,
argue
evidence. A
rea
particular argument,
This
justified by
sonable
inferences
evidence.
though,
prosecutor’s
is little more
than
Richardson,
State v.
923 S.W.2d
plea
or
recommendation
that the defendant
—
(Mo. banc),
denied,
U.S. -,
cert.
given
be
the death penalty and was immedi-
to see Dr. Maria to treat- Manion the desperately ment that he so needed? prosecu the contends that “Kenley phrase use of voted to
tor’s
impose
penalty”
victims
death
4*
*1»
facts
the record.
use of
argues
outside
people
Where were
screamed
metaphor merely
clumsy attempt
is
tMs
yelled
when he rubbed
wet bed
Kenley had
to
relaying the fact that
decided
clothes in
son’s
Ms
face?
Jenkins,
Felts, Randy
Ronald
and San
shoot
object
screaming,
The decision not to
to the
Buttry.
prejudice has been shown
No
dra
respond
way,
to
but
another
was trial
this
flourish.
rhetorical
strategy
ground
not a
for
ineffective
of counsel.
assistance
Equating
Sentences
claims
further
his counsel
KeMey
Finally,
argues that counsel
object
failing
for
to
ineffective
objected
prosecution’s
ar
should have
prosecutor’s rebuttal that:
KeMey
seven life sen
gument
received
killing
killing.
This
sake
for the
other crimes he committed
tences
says—yeah,
yelling
And
I’m
she
spree. KeMey
during the crime
contends
screaming.
sorry.
get
angry
I’m
I
a little
argument was intended mislead
that the
when I see senseless violence. This was
thinking
jury
the seven life
into
unjustified, unprovoked
on an
attack
parole
equM what
were
sentences
people.
innocent man—innocent
Com-
jury
if
receive
decided
woMd
pletely
get
I
little miffed.
senseless. And
argument
is
sentence. This
against
death
There is no evidence that
argument
response
TMs
was in direct
without merit.
jury.
prosecutor
prosecutor
intended
deceive
defense counsel’s remarks.
Furthermore,
quicMy
rebut-
explain argument
defense
to rebut and
allowed
assault,
ted the argument
arguing, “Those
photos
pick
were
two
the ice
related
assault,
life
kinds
sentences that we’re
Kenley used
talking
in this
about
case. In
case
superinten-
we’re
manager
functional unit
and the
talking
parole"
fifty
life
about
without
Potosí
regarding
dent of
Correctional Center
years—a
fifty years.”
preju-
minimum of
No
hostage
involving Kenley,
situation
*23
object
dice arises from counsels’ failure to
to
copies
certified
of the court cases
those
argument.
argues
Kenley
two incidents.
further
that he
law,
trial,
process
was denied due
of
fair
C.
counsel,
effective assistance of
and freedom
1, 2, 3,
from cruel and
challenged
4,
punishment.
The remarks
unusual
points
5,
7
improper argument.
were not
Missouri, admitting
In
evidence of
Counsel
not
failing
ineffective for
subsequent serious
offenses for
assaultive
objections
make useless
to those remarks
purposes
proving
of
circum
aggravating
and the
court
plainly
trial
did not
err in
is not
State v.
stances
reversible error.
Har
failing
sponte
prohibit
sua
proper
re-
(Mo.
ris,
798,
banc),
870 S.W.2d
813
cert.
point
marks.
remark challenged
The
8 is
denied,
953,
371,
513 U.S.
115 S.Ct.
130
not a basis for ineffective
of
assistance
coun-
(1994).
323
United
L.Ed.2d
States Su
sel
strategy
because it was reasonable trial
held,
preme Court
“Consideration
also has
of
object.
not to
plainly
The trial court
not
did
a criminal conviction obtained
the interim
err in allowing counsel to follow reasonable
original sentencing
and a
between
sen
strategy
prosecutor’s
combat
remark.
manifestly legitimate.”
tencing after retrial is
Finally,
prejudice
no
pros-
resulted from the
559,
States,
v.
468 U.S.
569-
Wasman United
6,
challenged
9,10,
ecutor’s remarks
in points
70,
3217, 3223, 82
424
104 S.Ct.
L.Ed.2d
and 11.
preju-
Because the
remarks did
(1984).
Hovey, 44
People
See also
v.
Cal.3d
Kenley’s
dice
sentencing,
miscarriage
no
of
121, 140-42,
776,
543, 244
749 P.2d
Cal.Rptr.
justice
Roberts,
occurred. See State v.
948
795-96,
denied,
871,
cert.
109 S.Ct.
488 U.S.
(Mo.
577,
1997);
S.W.2d
592
banc
State v.
188,
(1988); State v. Rich
B. stitutionality of instruc the reasonable doubt that the claims evidence tion, instruction 302.04. That MAI-CR3d support aggravator of the not submission states, beyond “Proof a reasonable doubt First, jury argues for two the reasons. he firmly you convinced proof that leaves of to more that there was no evidence risk proposition.” Kenley alleges that of a truth person. Kenley Ron than one asserts that the the instruction lowers burden alone, only one standing ald Felts was beyond “proof from a reasonable prosecutor Felts, fired at and that shot hit its shot was you firmly con “proof that leaves doubt” target. rejected argument This has been vinced.” error, however, that a to find It was fur frequently to warrant by this Court too great person one was risk more than Kreutzer, 928 State v. ther discussion. See gun knowingly created when fired the (Mo. 1996), 854, de banc cert. 872 S.W.2d people two were Felts. At least Ronald — -, 752, nied, 136 117 U.S. S.Ct. he steps Ronald Felts when within a few of 854; (1997); Copeland, supra, at 689 L.Ed.2d fired at least gun and the was was shot Brown, supra, at 287. away. risk was twenty great feet A of death in the Blue Moon to all the others created VIII. pistol by use of a .38 caliber Tavern 565.035, RSMo bullets, section possi- Pursuant point by the with hollow loaded 1994, independently reviews by the this court Kenley missing target, bility of traveling to determine whether fragments of death possibility of the sentence bullet of influence imposed under the possibility of a sentence through body, Felts’ 276 Wise,
passion, prejudice,
any
arbitrary
or
other
We find this ease similar to
State
factor;
(Mo.
1994),
supports
denied,
whether the evidence
imposed in considering similar both IX. and In crime the defendant.” such judgments of the trial court and the review we look to the facts of the homicide court motion are affirmed. compared here as to similar homicides. We these from the record determine facts entire LIMBAUGH, BENTON, C.J., transcript judge’s the trial and from J., COVINGTON, GUM, JJ., concur:
report. Lashley, supra, at 716. Sr. STITH, Special Following hearing, the State Judge, the 29.15 DENVIR LAURA pre- motion whether it could part asked the court part in concurs and dissents findings of fact conclu- pare proposed separate opinion filed. par- both law. The court informed sions of ROBERTSON, HOLSTEIN, WHITE and ruling its prepare own ties that would JJ., sitting. not findings from either require proposed not In with this direction party. accordance STITH, Special Judge, DENVIR LAURA court, party initially prepared neither part. concurring part dissenting findings. proposed majority’s respectfully I dissent the 29.15 days after the conclusion of Six opinion that the conclusion in Part II of its four-page judg- issued a hearing, the court adoption pros- court’s verbatim of the motion judgment majority of the ment. The vast proposed findings ecutor’s fact does raised allegations of error simply recited the remand for new hear- require reversal and counsel by Kenley and the standard which repeatedly ing. While Missouri courts have proceeding to show must meet a 29.15 adoption party’s that such held total of the to a new trial. The entitlement reversal, automatically does not mandate analysis penalty issue court’s of the whether they will re- they have also cautioned whether phase counsel ineffective and presented that the verse where evidence is may have affected ineffectiveness adopted findings so the inde- do reflect penalty impose the death decision pendent judgment court. is what That follows: addition, I I to be here. believe the case Clearly, choices counsel made certain give believe court below failed to Strickland, law of trial. Under the adequate notice of his intent in- find a constitutional court is unable to findings. amend his trial. adequacy in Movant’s defense at *26 testimony two presented the of
Movant Inadequacy A Initial Motion Court’s psychiatrist at this psychologists and a of Judgment Rejecting 29.15 testimony Motion of hearing. The thrust their a Kenley from was that Kenneth came judge’s A more detailed discussion the family a dysfunctional and had difficult ruling help- actions in the 29.15 is on motion hardly is a defense childhood. Such understanding my ful in the basis of dis- intentional murder. agreement majority. with mo- The 29.15 testified. of the two defense counsel One penalty tion filed following was second obviously very that her was distressed She phase jury at recom- again trial which the penalty. had death client received penalty judge mended the death and the However, testimony to show that her failed again Kenley to At the sentenced death. inadequate performance of coun- there was hearing, Kenley’s argued 29.15 sel. phase penalty counsel had been ineffec- his the of- A brief mention of facts of failing to present tive in additional evidence Kenley gun into fense indicated Mr. took capac- of his mental and diminished condition him man who a bar and killed a looked ity might mitigated punish- which have be he the man would because afraid presented expert three wit- ment. Counsel imag- identify him. It is difficult to able to presented nesses on these issues and further blooded, act. a more needless ine cold Kraft, testimony along of Karen who with parts all motion of the Movant and dining represented Kenley co-counsel had is thereof denied. penalty-phase only trial. The is- his second clearly inadequate, and ruling penalty This hearing at the 29.15 was whether sue stood, on failing it have been reversed phase to had it would counsel was ineffective for this It failed to deal present appeal in com- reason. mitigating this evidence and by Kenley gave raised might affect- most of the issues mitting other errors which a broad- impose it address such jury judge’s those issues did decisions ed ruling is treatment that review of penalty. brush the death State, extremely Toney part rendered difficult. very present due to failure evi (Mo.App.1987) (judgment S.W.2d 295 dence addressed to these issues in the first post-conviction which denies relief Eighth based trial that the Circuit ordered that the conclusory statements movant is not en- imprison State either to life sentence addressing titled relief without all issues penalty ment phase or hold a second trial. presented inadequate is Armontrout, and must be re- Kenley v. 937 F.2d manded). (8th Cir.), nom., sub cert. denied Delo v. Kenley, U.S. From the limited information which can be L.Ed.2d 450 The focus of the evi gleaned however, ruling, appears Kenley’s penalty phase dence at second trial judge adequately understand purposely dysfunctional to his addressed either the facts the case or the relevant family and difficult childhood. the 29.15 facts, In regard law. judge stated position hearing, the defendant’s was that victim killed the because this strengthened would have been was afraid the victim would be able to identi- expert further as to evidence his deficient fy contrary, him. To the and as majority psychological allegedly brain-damaged notes, the evidence showed that shot state at the time of the crimes and as to his the victim to establish control over the problem. believed, alcohol drug abuse If bar when he saw that the victim and others type then very evidence which immediately failed to obey him. There was indeed, might, be a defense to imposing absolutely no evidence that a desire to avoid penalty Kenley’s death as the intentional killing. Indeed, identification motivated Yet, murder of the victim. the trial court previous there was no acquain- thought it since it was irrelevant was not a victim, of Kenley tance and the and there Kenley’s guilt defense to the murder itself. people were dozens of other in the bar with Kenley and the victim who could and did Adoption Attorney B. General’s Pro- While, identify Kenley.
later judge had the posed Findings Amended Violated accurately determined motive for Kenley’s Right Rule 75.01 and to No- killing, may he still have ruled that it was tice difficult imagine a more cold blooded and act, should, needless such determination attorney general’s certainly office was must, facts, be the actual made on not on inadequacies aware of these and other inaccurate ones. *27 court’s ruling, receiving initial for after the judgment, attorney general the assistant who The analysis court’s of the defendant’s ex- hearing very had handled the wrote a expert testimony tensive unusu- equally inade- al letter to The letter in quate. judge. the stated He summarized “the thrust” of that part: relevant being as “that Kenley Kenneth came from dysfunctional family and had a I your Findings have of Fact received difficult hardly is childhood. Such a defense Kenley and in Conclusions of Law the Indeed, to intentional murder.” the court certainly agree your case. While I right that a difficult childhood is not a ruling, I do have concerns. some defense to murder. intentional The issue the aware, As I am you sure are death- address, however, court was to was not penalty heighten cases often receive a [sic] whether defense to had intentional scrutiny subjected level are and to murder but he whether received ineffective process. rigorous Having more ex- review phase trial, in penalty assistance the a trial perienced first-hand, I phenomena the find Kenley’s guilt addressed not to or innocence myself looking findings the and conclu- but to whether he should receive the death eye sions this a more critical case with penalty imprisonment. or life especially given than usual. This is true
The fact dysfunc that came from a by manner this case which arrived case, tional family your a difficult any and had childhood is court. In other I would very relevant to he your findings whether should receive consider and conclusions to fact, penalty. they the death In it large was in be more than and would adequate, recog- itself attorney general’s The letter give any pause. not I in a ease me believe however, just adopt this, could not nized that the trial court such as that more detailed findings giving Ken- proposed her without findings of fact and conclusions law prepare ley’s a chance to her own parties. would benefit all concerned As a findings. paragraph final result, proposed The you I ask to consider more would thus the motion court stated: comprehensive findings her letter to conclusions in and case. this already Kenley’s I contacted Mr. Hamilton, and hope attorney, Loyce I that this informed the Court understands criticism, you ask to amend suggestion my is not intended as a her intention to interpret your findings. requested I that she hope you and I that will not it also findings and conclusions way. only proposed that I in this case submit am interested and, timely given receiving progressing your in a for consideration. After fashion scrutiny proposed findings, I this has in Ms. would close case received Hamilton’s past, delayed ask more detailed I do want it for the Court issue Therefore, hope I of law procedural findings reasons. of fact and conclusions 7,1996, the prior May that this is not a criti- to date on understood letter case jurisdiction cism. which will lose over the Court appreciate your the case. I assistance attorney general The assistant to attached this matter. 29-page findings of this letter a set of fact attorney The does state when letter They and conclusions of law. were not la- general Kenley’s counsel to indi- contacted proposed, they place beled had a for to cate that she would ask the court amend signature judge. adopted judge The findings. presume its We from the cannot findings these verbatim. anything language of the letter that this argues appeal now so courtesy shortly on or more call made than a doing the trial court violated constitution- attorney general before the date rights, al further Missouri Rule violated proposed sent the her find- court letter part: 75.01. rule states That in relevant event, makes ings. any the letter it evi- judg- retains over trial court control attorney general anticipated dent that during thirty-day period ments after Kenley’s would for coun- court wait entry judgment may, giving after proposed sel to own before offer her parties opportunity be heard an deciding adopt those submitted whether cause, good vacate, correct, reopen, attorney general. amend, modify judgment its within that questionable It is whether coun- time. respond obligation sel had added). (emphasis 75.01 Rule attorney proposed general’s find- letter majority finds has waived requires ings point, at this Rule 75.01 right object adop- to the motion court’s parties opportunity to be give court *28 findings the his tion of State’s because coun- findings. amends The last heard before it its given sel was notice of intention the State’s indication the court on this issue was findings supplied proposed to submit was parties it want did not the submit proposed findings, yet copy the State’s proposed findings, preferred prepare but any propose findings failed to own or that, just entering own. its its It then object proposed findings. to the State’s It judgment denying the Rule 29.15 motion. point, judgment, respectfully disagree majority’s only I was at this after with the attorney general sent unsolicit- preserved. this issue the assistant conclusion that was First, Kenley’s upon the and took it only findings the written notice coun- ed court she free attorney opposing herself counsel general’s sel received of the intent to tell It when to do likewise. would be reasonable proposed findings to submit she proposed opposing counsel not letter to the this situation read cover which findings its it was informed findings were attached. That letter was dat- offer own until 22,1996. considering it April by the that was amend- ed court ing judgment its give and wanted to by its motion cloaking it in informality parties opportunity an to be heard on that a letter properly rather than putting it in words, issue. In other notice that the pleading court form. considering amending its judgment circumstances, In these I disagree that court, should and must come from the not Kenley preserve objections has failed to attorney general. judge’s adoption to the attorney gener-
Even if we were
Kenley’s
to believe that
proposed
al’s
findings.
I believe that
counsel should have somehow known that it Court should reach the
Kenley’s
merits of
was incumbent on her to
complaint
offer alternative
I
under Rule 75.01.
believe that
findings
any
by
without
notice
the court
complaint
grounds,
has merit on two
however,
intended to
judgment,
amend its
grows
first of which
out
just
of the facts
the record makes it
clear that
noted,
coun- discussed. As there
Rule 75.01 states
given
sel was not
adequate
prepare
time to
that the court can
within
judgment
amend its
noted,
findings.
alternative
As
the attor-
days
only
the 30
judgment
after
after giving
ney general’s proposed findings
parties
opportunity
were mailed
an
to be heard. For
Monday, April
best,
on
stated,
1996. At
Ms.
all
just
of the reasons
did not
Kenley’s counsel would have received these
opportunity
have an
to be heard before the
proposed findings
Wednesday, April
on
judgment was
amended.
last communi-
Assuming
1996.
days
mailing,
three
cation from the
on the
court
issue was his
44.01(e),.
required by
they
Rule
parties
would not
direction
pro-
not submit
have been
by Kenley’s
received
posed
counsel until
findings.
attorney
When the assistant
Thursday, April
general
The letter
sponte prepared
sua
proposed find-
proposed findings do not have a file-stamped
ings in response to what she realized were
know,
date, and thus we
they
do not
if
court,
were
inadequate findings of the motion
she
mailed,
mailed or hand-delivered.
If
they
that,
recognized
also
and advised the court
may not
by
that,
have been received
the court
opposing counsel needed time to offer
25,1996,
April
until
either.
findings.
given.
alternative
No time was
just
days,
Within
a few
without notice and
The court entered its
findings
amended
opposing
given
oppor-
before
counsel was
an
conclusions, by
signing
pleading
sent
heard,
tunity
adopted
to be
the court
attorney
to it
general
single
without a
attorney general’s
proposed
verba-
change,
Friday,
April
1996. This was
tim.
one
days
to two
attorney general’s
after the
proposed findings would have even been re-
repeated
This was error.
courts have
Our
counsel,
by Kenley’s
ceived
perhaps by
ly
recognized
requires
that Rule 75.01
the court.
give Kenley’s
This did not
before a court can
an
setting
enter
order
respond
time to even
attorney gener-
aside or amending
judgment
give
it must
proposed
al’s
findings, much less to draft
parties
opportunity
notice to the
and an
to be
proposed
offer a set of
findings of her own. heard. The Eastern and Western Districts
It
also reflects a failure
the motion court
Appeals
disagreed
of the Court of
as to
comply
with the minimum time limits for whether an
affording
order entered without
responding to a motion
out
parties
set
Rule
opportunity
to be heard is void
44.01(d). That rule
part,
voidable,
states in relevant
merely
recognized
but both have
“
motion,
written
may
other than one which
Compare
that it cannot stand.
State ex rel.
parte,
be heard ex
Romines,
and notice of
hearing
Kairuz v.
(Mo.App.
281 (Mo.1968), often trouble- citing judge trial the the followed 426 29 Albert J. S.W.2d Co., modifi- practice adopting, without Hoppe, some of Inc. v. Louis Pub. Serv. St. (banc 1951). cation, proposed significant portions of a Apply Mo. 235 S.W.2d Hewitt, respondent’s counsel. prepared by ing I would hold the motion court’s order of rheto- prone Advocates are to excesses judgment void here. Should the amended of evidence favor- majority lengthy that such an is ric and recitals determine order voidable, however, ignore proper merely to their which the result would able side but evidence fa- judgment or be the The amended should inferences same. party. judges Trial This has vorable to the other naught. be held for the effect pro- party’s judg approach court’s well reinstating the motion initial are advised skeptic sharp eye of a judgment posed order the patently ment. As that is inade with quate, sharp pencil I with and the of an editor. would remand directions hearing the court either hold a new on the Id. at 804. or, minimum, Rule 29.15 motion at a enter Nonetheless, court fact that a trial has the new, detailed, judgment providing after both party one adopted findings the offered parties opportunity to be with an heard Instead, as require reversal. the does I proposed findings. to submit further would White, in 873 S.W.2d Court stated State carefully court to admonish the motion con 1994): (Mo. banc and, sider the light the issues raised long thoughtfully as and care- As the court case, procedural history prepare of this its fully parties’ proposed find- considers the adopt pro own than findings rather those content, agrees there is ings and with the posed party. by either the problem no court constitutional part findings adopting whole or C. Failed To The Trial Court Exercise fact and conclusions of law drafted one Independent Judgment Adopting parties. court the trial deter- Once Attorney’s Proposed General’s par- agrees mines that with one Findings Verbatim. order, findings signs the ties’ adopted party’s has in I court effect findings for new would also remand for additional, findings as independent its own. As the reason. notes, majority past this Court has in the record that It is clear from the recognized commonplace that it has become or all of the Au- prosecutor drafted some adopt findings courts to and conclusions 1, 1990, and conclu- gust findings of fact proposed by parties. judges While often constitutional sions of We find no law. changes make at least some additions long regarding practice as as violation this proposals, necessarily these is not this re- findings trial that its court is satisfied Nonetheless, quired. the Court has re- fact and of law reflect its conclusions peatedly expressed practice its dislike for the independent judgment. Because there was of adopting findings and without conclusions findings presented no evidence change. the court’s and conclusions did not reflect point independent judgment, is own Thus, as the Court stated State v. Grif- denied. (Mo. 1993), fin, banc 848 S.W.2d “For added). (emphasis Id. reasons, adopts when a court in its obvious findings entirety proposed of fact and Thus, where, here, the motion court has parties, conclusions of law one of there verbatim, adopted of the State may appearance. problem be a with the has issue whether evidence been becomes judiciary not and should not be rubber- presented findings and conclusions 471-72. stamp anyone.” Id. at independent court’s own reflect the course, develop judgment. Of it is difficult v. Mis- Similarly, Massman Constr. Co. proof. such Comm’n, Transp. Highway souri & 1996), way proof independent judg- One of lack of S.W.2d Court noted *30 demonstrating by that ment can be shown is that: rule, findings sup- adopting and conclusions are not did not take [I]n this we record, ported by they penalty in into eases and the include account death fact-finding factually very special unique re- findings findings inaccurate and as to sponsibilities sentencing judge in of the which there is no substantial evidence. This- judge single death The trial has the eases. by majori- is the issue addressed much of the in important responsibility most the death ty’s opinion. findings It signed reviews the penalty- process. process, this a Under court, by the and concludes there was judge may impose pen- trial the death in supports the record which each alty articulates in writing unless he or she finding. that, example, For it finds based on findings his or her factual and reasons for record, the trial court could have disbe- We have imposing penalty. the death rec- particular a expert, lieved or could have dis- ognized responsibilities of unique believed evidence of alleged alcohol sentencing judge regard in this and the drug dependence, and and so forth. necessity independent for evaluations and I agree majority’s analysis, as far concerning aggra- findings written factual goes. itas The judgment amended submit- im- vating mitigating circumstances in by systematically ted the State summarizes posing the death sentence. all of the evidence favorable to in the State ... in this conclude that fairness We findings Every the form of of fact. time it penalty proceedings difficult area of death Kenley, mentions evidence favorable to it judge imposing sen- dictates that the it, systematically rejects leading each time pre- judge who tence should be the same off analysis its with the statement that it did penalty phase proceeding. sided over the particular not find that defense witness cred- State, 1240, 1243-1244 Corbett v. 602 So.2d Yet, ible. majority as the
283
judgment
not
they may base
decisions on
infor-
I also note that the initial
did
their
secret
acceptable
argument
any
the
not to
mation. However
find
defendant’s witnesses
credible,
credit
might
Georgia
have been before
be
but
instead seemed to
Furman v.
simply
testimony,
33
346
misconceived
U.S.
L.Ed.2d
defense
but
[408
(1972)],
proffered
clearly
it
the
is now
foreclosed.”
the issue whether
guilt
of the crime
U.S. at
S.Ct. at
51 L.Ed.2d
demonstrated lack
charged rather than whether there was inef-
penalty
of counsel
the
fective assistance
here,
Similarly
we
with a
because
deal
guilty
phase of the trial which followed the
case,
penalty
I
not
the
death
do
believe
reason, apparently,
the
For
verdict.
rely
assumption
can
on the
the
Court
compe-
focused on
court
whether
findings
motion court’s
must
reflected
have
despite
guilty
to be held
for murder
tent
judgment,
judge’s independent
nor can
the
That was
the issue
difficult childhood.
not
judge’s
we even assume that the
wholesale
him,
event,
ini-
before
however.
In
the
adoption
proposed findings
of the State’s
nec-
accurately
judgment
tial
fails to
set out ei-
essarily
agreed
means that he
with each of
testimony
ther the nature of the
which Ken-
simply
them.
I do
believe we can affirm
presented
ley says should
been
at his
by deciding
could
judge
that a reasonable
trial,
phase
penalty
or the most basic facts
findings
reach
and conclusions set out
contrast,
By
judg-
the murder.
amended
judgment.
the court’s
We must determine
to the evidence that was
ment
directed
below,
judge
judge
whether the
who ac-
presented and
court.
the issues before the
evidence,
tually heard the
his or
exercised
credible,
expert not
and
It finds each defense
independent
judgment
adopting
her
analyzes
their
fits
properly
how
attorney general’s findings.
In
to do
order
prosecution
with the
and
theories.
defense
this,
upon
it is
us
incumbent
to review
remainder of the
to see
judgments
record
whether there
The contrast between the two
judge
necessarily
is other evidence that
exer-
creates doubt
the court
independent judgment.
independent judgment
exercise
cised
while so funda-
mentally shifting
basis for
its decision
analysis,
In undertaking this
we should be
reaching
conclusions and
and
such different
by
guided
proof
the fact that
of a lack
such a broad reorientation of
understand-
independent judgment
usually
will
circum-
be
period
in the brief
after
ing of
issues
Here, however, in
stantial.
addition to much
receipt
attorney general’s
of the
letter.
evidence,
excep-
circumstantial
we have the
presence
allayed
might
tional
of direct evidence—two writ-
These doubts
be
if the mo-
judgments,
prepared indepen-
ten
the one
judge
kept
tion
had
and studied the State’s
dently containing findings
findings
proposed
period
and conclusions
for a reasonable
by
time,
unsupported
up
and
inadequate
record
and either marked them
relief;
others,
support
post-conviction
rejecting
the denial of
re-
adopted some while
prepared by
proposed findings
the other
quested
advocate without
considered
response by
Kenley,
objections
opportunity
par-
or waited for
adverse
containing
ty
propositions
proposals,
numerous factual
or at least notified Ken-
State’s
initial,
considering
in its
ley’s
the court did not mention
inde-
counsel that the court was
pendently-prepared judgment
omitting
amending
findings
adopting
its
those
by
judgment.
proposed
material
in its initial
the state. None of these events
contained
occurred,
Instead,
judgment
paragraphs
initial
four
court
That
however.
findings
length
understanding
adopted
little
and conclusions
showed
State’s
mailed,
they
complexities
days
the court.
after
were
without
the issues before
four
contrast,
By
judgment
and without notice that
the amended
notice
majority
findings
opportunity
or an
pages, and the
itself
the would amend its
devotes
heard,
dealing
by
whether
submit-
pages
opinion
of its
to issues
be
first
facts,
findings
and conclusions or
ting
the amended
alternative
they
submitting objections
proposed
supported
those
judgment,
whether
were
fact,
if
even
coun-
by the evidence.
the State.
*32
prepared proposed
sel
findings
objec-
only
had
or
justice
Not
did the trial
pro-
solicit
tions
day, they
and mailed them the next
posed findings
only
from
party,
one
there-
would not have
judge
reached the
before he
by depriving
opportunity
the
himself of
ruled.
weigh
parties,
the views
counsel
both
of
for
importantly,
soliciting pro-
but more
in
Finally, we must consider that the court
posed findings
prevailing party,
from the
adopted
proposed findings
the State’s
abso-
justice
give
the
failed to
counsel for that
lutely verbatim.
surpris-
This would not be
party any
of the
indication
rationale for his
ing
simple
in a
involving
case
simple
few
type
decision. This is not the
of case in
issues,
people might agree
where most
justice’s
which the basis for the
decision
findings
what
and conclusions were needed to
readily apparent.
The evidence
particular
Here, however,
reach a
ad-
result.
duced at trial
proposed
part
the
was extensive and in
findings
pages.
covered 29
They
extremely
conflicting.
proposed judgement
were
The
complex, going over
aspects
by
detailed
of the
drafted
counsel for
prevailing party
record and the law.
They
uniformly
also
every
attempted
found
State’s
testimony
wit-
to review this
at
credible,
every
ness to be
expert
defense
length
process rejected
in
selected
credible,
not to be
findings absent from the
portions
highly
of it.
believe it
We
unlike-
initial, independently-prepared judgment and
ly
perception
that counsel=s
and the por-
which, defense
suggests
counsel
in this
trayal
testimony
this
would have been
of
Court,
attorney general
may
pur-
have
justice.
presiding
identical
to that
of
posely
in
proposed findings
included
so
trial
at
was too
adduced
preclude
as to
later
corpus
federal habeas
complex
extensive and too
counsel to
key
of
review
issues raised below. This find-
have
sup-
been able to divine the rationale
ing
credibility
justified
of lack of
also
porting the decision
the court.
court,
justifies
motion
in
Court
re-
added).
also,
Id. at
(emphasis
Ra
See
viewing the motion
ruling,
ignoring
court’s
in
Co.,
mey
Apache
Constr.
Inc. v.
Tribe of
giving
weight
no
to defense evidence.
Reservation,
Mescalero
616 F.2d
agree
I
majority
While
with the
that a ra-
(10th Cir.1980)
adop
(noting that verbatim
judge
tional
might have made each of these
findings
tion of
proposed
party mandates
determinations, I
it exceedingly
find
indica-
eye
their review with a more critical
and that
independent
tive
a lack of
judgment
here, “[ajlthough
may
court
the trial
well
the motion court
all
exactly
made
of them in
performed
judicial
function in this
its
suggested by
attorney
terms
general.
ease, viewing
findings
and the record
A similar situation faced the Maine Su
eye,
a critical
we cannot be sure that it
preme
Court
a civil
context
Clifford
so.”).
Klein,
(Me.1983).
year prison only from one term differs a
year qualitative Because of this two.
difference, corresponding is a there differ- reliability
ence in the need for the deter- appropriate pun-
mination that death is the specific
ishment in a case. Carolina, 280, 428
Woodson v. North U.S. 805, 2991, 944, 49 S.Ct. L.Ed.2d VAPOREAN, Respondent, I. Judith Moreover, precisely qualita- because of the McBEE, Appellant. Ronald R. tive difference between death and other permitted punishment forms of under our No. WD laws: Appeals, Missouri Court of although every imperfection in the de- District. Western sufficient, process is in a liberative even capital case, judg- to set a aside state-court 30, 1997. June ment, severity man- sentence Transfer Rehearing Motion for and/or scrutiny dates careful the review of 30, 1997. Sept. Supreme Denied Court colorable claim of error. 862, 884-85, Zant v. Stephens, U.S. (1983) 2733, 2747, 77 L.Ed.2d Woodson, (citing at at 428 U.S. 96 S.Ct. Grimes, Gaeth, 961). Fay Fay, Elton W. & Co- Applying such L.Ed.2d lumbia, appellant. for scrutiny penalty case in to a death which simply attorney the state’s
trial court
told
Hindman, Scott,
Goldstein,
Jean E.
Gold-
aggravating
that he
circum-
believed
Columbia,
stein,
Froman,
Harder
re-
&
outweighed
mitigating
stances
circum-
spondent.
attorney
state’s
stances
left it to the
deci-
draft
accordance
P.J.,
BRECKENRIDGE,
Before
sion,
Supreme
Court remanded
Florida
SMITH, JJ.
H.
SMART
EDWIN
sentencing hearing, stating
“the
new
ORDER
judge’s
delegating
trial
action
the state
PER CURIAM:
attorney
responsibility
identify
the trial
appeals from
explain
aggravating
miti-
Ronald McBee
appropriate
modifying
order
a dissolution decree
question
con-
court’s
gating factors raises
serious
payments
respect
support
due
cerning
process that must be with
to child
weighing
Vaporean.
appeal, Mr. McBee eon-
imposing
penalty.”
Ms.
On
death
conducted before
notes
its excel-
(Fla.1992).
record,
lent
thorough analysis
espoused by
A
approach
similar
has been
which,
there is evidence in the record
if
Supreme
the United States
Court
review-
believed, supports
finding
each
in the form of
ing procedures
imposition of the death
for
judgment
by
attorney general
submitted
proce-
penalty.
upheld such
The Court has
adopted by
the trial court.
precisely
dures in
because
numerous cases
law,
state’s
here,
has found that under the relevant
majority
analysis
ends its
how-
instance,
is im-
It,
a death sentence
effect,
“[i]f
ever.
concludes that
a
because
posed,
authority
sentencing
articulates
judge exercising independent judgment could
led to its
writing
statutory
reasons
adopted
conclusions,
these
242,
Florida, 428 U.S.
decision.”
v.
judge
below must have exercised inde-
Proffitt
918,
2970,
96 S.Ct.
49 L.Ed.2d
pendent judgment.
agree
IWhile
with the
noted,
This,
has
allows
the Court
proposition,
former
agree
I do not
that this
pen-
meaningful
ensures that
review and
means that the
go
court does not need to
alty
indiscriminately or arbi-
imposed
is not
particular judge
consider whether this
trarily.
Id.
fact
independent judgment.
exercised
This
where,
here,
particularly
is
true
the issue
Florida,
In
430 U.S.
Gardner
before us
imposition
is whether to affirm the
(1977), however,