State v. Powell

Missouri, Respondent, STATE POWELL, Appellant.

Reginald L. No. 70518. Missouri, Supreme Court of En Banc. Nov. 1990. Rehearing Denied Dec. 1990. Walter, Clayton, appellant.

Scott E. for Webster, Gen., Atty. L. William John M. Morris, Gen., Atty. City, Asst. Jefferson respondent. for BILLINGS, Judge. Powell, Reginald age Love killing Freddie

at the time of his Miller and Miller, jury-tried Lee convicted of degree two of first murder counts 565.- [£ fatal stabbings 1986 for the ] brothers, following the Miller a brutal beat- during the victims course of a robbery. agree could on the trial punishment judge, matter of and the finding statutory aggravating cir- three cumstances, defendant to sentenced postconvic- on both Defendant’s counts. was, lengthy after a tion motion for relief hearing, denied. evidentiary Affirmed.

Appeal Direct

Initially, the Court notes defen- trial dant’s motion for a new contains 72 points subpoints a number of as al- and, addition, error leged assignments of twenty of some reiterates the substance arguments pretrial thereon. motions And, plus points sub- avers 43 brief Many points are points as error. appellate properly preserved for review. and others on the frivolous Some border in the record. In addi- support are without tion, allega- many of the contentions motions, motion for pretrial tions trial, herein, ignore decisions new and brief repeatedly reject- Court which have sug- arguments. ed the same do gests that attacks not com- scatter-load this Court and tend port with the rules of appellate ultimate issue to obfuscate the 7H get review, re- When tried namely, whether the defendant branches. the victims constitutionally fair trial mandated group ceived a them down. Cal- up, the kicked back free error. of reversible Courtney get tried the defendant to vin minute, stop. stopped light favorable Viewed most were. Courtney told him the victims who Guinan, verdict, “My baby needs some Pam- said the broth- beating resumed the two pers” 83 L.Ed.2d and life, saying facts follows: are as begged ers. Lee Miller for want, but don’t you “You can beat me all 14, 1986, evening of On November the kill me.” drinking at a had been the defendant city Af- in the of Louis. friend’s house St. After rest of had their fill group the the defendant, minutes, twenty Lee ter about lying and Lee and Freddie Miller were on Times, McDowell, youth Eric and another ground, jumped up defendant and down the liquor “Diamond” to a nicknamed went victims, breaking the chests both all store, they Lee saw Freddie and where top the ribs each. then but Miller, purchase asked them some to valuables, pulling the victims for searched eighteen liquor them. Defendant was pants process. in the Miller’s down Lee time, years companions old at the and his search, joined in the McDowell and Times younger. ar- were sixteen or After some pack only and a yielded three dollars which gument, Miller refused defen- the brothers remarked cigarettes. The defendant request. dant’s person the had that this was third group evening, later that the Some time gotten day and still had robbed apartment of of defen- went to the a friend beating robbery any money. After the dant’s, seeking li- again procure some brothers, persons the Miller all quor. Miller lived One of the brothers also scene, leaving only left present building, group and the encountered and the victims. defendant two Both of backyard. two victims intoxicated, much the brothers were one so robbery, Prior to the the defendant had having standing. so difficulty that he was (a butterfly knife martial arts borrowed stepbrother, Defendant’s Court- Calvin away fold weapon with handles that from fifteen, ney, building age went to the look- blade) inch blade from Eric with six ing Courtney of his was for one friends. Miller lay As Lee and Freddie Times. attempting help the Miller into brothers beaten, there, bleeding, but broken and still De- backyard when defendant arrived. moaning pain, Regi- defendant alive and was, Courtney asked he fendant who three times each nald Powell stabbed them Courtney replied, said: defendant abdomen, the stab wounds in the chest “Oh, was, I didn’t know who it because we depth. to six Lee being from five inches and, “Man, getting ready you” were rob resist, apparently attempted to Miller robbing people.” day I around all have been consistent with a “defense laceration victims, Upon seeing the stat- defendant right found hand. Both was on his wound” niggers I had the ed: “These are who bleeding from internal caused brothers died here, and he or squabble man” with multiple wounds. by the stab said, nig- one the others “Let’s rob death, stabbing After the two brothers gers.” After one of the called victims McDowell, caught up with pushed and the defendant youths “punks,” said, He ground Times, Courtney. was kicked the brothers “Diamond” and beating A of the broth- “Get them.” brutal bloody knife he cleaned carrying the which ers followed. ground, and sticking the blade into the them that on his shoes. He told had blood the two brothers While defendant kicked victims, had “stuck” and “stabbed” McDowell, he face, groin, chest and Lee said, you if ain’t bring “Don’t no knife in, joined Eric beat- Times “Diamond” bricks, use it.” going victims with boards group proceeded rights by previous to the home of de- iar these reason of aunt, (defendant fendant’s where defendant cleaned proceedings criminal was on the blood from his shoes and told his aunt probation of a criminal conviction and an- “jumped how he had on some dudes” and pending charge other criminal at the up. beat them He on the was arrested brothers) or killing time of the of the Miller Courtney day, street the next after Calvin watching television. po- spoken police. had with the After police Detective Gooch of the St. Louis three lice had advised the defendant on department given testified he had he made rights, occasions of his Miranda warnings three times Miranda statement, admitting tape recorded prior to the time defendant made his state- know, saying, say “You we’ll murders and ment. The first time was when defendant laugh.” I had the last—the last shortly arrested. The af- second time error, principal point In his defen And, police ter he arrived at the station. tape dant asserts that his recorded state period just short the third time a later improperly into ment was admitted evi he made the statement. The last before after a dence because it was not made tape of defendant’s time is recorded on voluntary, knowing intelligent waiver statement: rights required by of his constitutional Q. right You have the to remain silent. Arizona, 384 U.S. 86 S.Ct.

Miranda it you Do understand sir? (1966). 16 L.Ed.2d 694 A. Yes. does not contend that the statement was voluntary, not rather he asserts that he knowingly capacity

lacked the mental to Q. Anything you say can and will be rights under the intelligently waive his against you you in court of law. Do used a States and Missouri Constitutions. United understand that sir? prior Defendant filed a motion to trial A. Yes. statement, alleging, suppress his recorded alia, attorney. function Q. his level of mental an Do inter that You have a that, he unable to understand you was such that was understand sir? Mi- comprehend the written and verbal A. Yes. suppression warnings given him. A randa one, one will be Q. you If can’t afford held and the trial court con-

hearing was you Do you by the state. applied [sic] was admissi- defendant’s statement cluded that? understand ble under Miranda. A. Yes. comprehen- his upon Defendant’s attack warnings consisted sion of Miranda Q. your rights? you Do understand psycholog- three entirely testimony from A. Yes. by the defense who ical retained witnesses reading appeared to be The defendant intelligence and com- administered various rights as the along on the waiver form Based on prehension tests to defendant. him, signed the explained and he were tests, part indicated in that these which making the statement. form after waiver I.Q. 65 and an of between defendant had motion, finding that The court denied the the defen- testified that the witnesses he did to indicate that complex “the evidence seems difficulty understanding dant had He indicated so rights]. his to under- would be unable sentences and [understand them.” he tape. He said understood warnings. No direct stand the Miranda given only indi- And, expert testimony “The defendant did presented that evidence was according psychological to the that fact, warnings. Not cates not, understand they given, would and educational tests read the three witnesses one of these a However, he expect him to understand. to ascer- warnings to defendant Miranda himself, I lis- that he did. definitely, said Neither did them. if he understood tain tape....” was famil- tened defendant they explore whether investigation pre- requirement a have that waiver of tence should been rights knowing intelligent pared be by neuropsychiatrist; prosecu- does not that mean that defendant must know and tors have the discretion to seek or waive consequences all the possible understand judge is penalty; the death and because the of the waiver. Spring, Colorado v. 479 permitted impose sentence when the 574-75, 851, 857-58, 107 S.Ct. punish- agree on the issue of is unable (1987). Rather, requires L.Ed.2d 954 ment. that the defendant the warn understood Although questionable it is as to whether themselves; ings he times “that at all knew preserved properly raised and request he could stand mute that chal these multifaceted constitutional lawyer, and he was aware of the should be lenges and therefore State’s intention to use statements to McMillin, deemed waived under State v. Burbine, secure a conviction.” Moran — 783 S.W.2d 82 1135, 1141, 106 S.Ct. —, 111 S.Ct. 112 L.Ed.2d 179 L.Ed.2d 410 (1990), briefly the Court will each consider suppress When a defendant moves to assignments. of these statement as taken in violation of the Mi- misapprehends the na doctrine, the randa state bears the burden equal protection. ture Missouri proof properly penalty statutorily scheme does This is one of rights. waived burden classify whether or upon defendants based preponderance the Colo- evidence. rather, retarded, it allows de they not are 157, Connelly, 479 U.S. 107 S.Ct. rado suffering from some mental dis fendants 515, (1986). case, In 93 L.Ed.2d 473 each ease, impairment present or evi defect totality the of circumstances must indicate negate alleged condition to dence of their voluntary, knowing the waiver was mitigation or in of required mental state intelligent. question The of is waiver punishment. are Because these additional fact, findings the one of trial court’s of only requested protections, required when concerning will not over- fact waiver be defendant, there is no sense in which clearly erroneous. turned unless United protection equal is denied of law. defendant (8th Dougherty, 810 F.2d 763 States v. Metropolitan Arlington Heights v. Devel Cir.1987). Conflicts in the evidence and the 252, 265, Corp., 429 97 S.Ct. opment U.S. credibility of are witnesses matters the 555, 563, (1977). 50 L.Ed.2d 450 v. Lytle, trial court resolve. State 910, (Mo.banc 1986). citing pertinent authority, no While record, argues that the Missouri death defendant

After a review of the entire in- mentally impaired de penalty scheme holds cluding listening tape, to the same standards as those fendants the trial court’s determina- concludes that impaired so and thus violates due rights not defendant know- tion that waived requirement sentenc totality process of individual intelligently ingly and under ing. surrounding confes- circumstances substantia] supported by is evidence sion in error. 552.015.- Defendant is Section clearly Conse- qot and was erroneous. 2(8), admission of evidence of allows the con- quently, the admission defendant’s prove or defect “to de- mental disease fession was not error. of mind did or did not have a state fendant Such an element of offense”. that the Mis- which is Defendant next contends trial and the 565.020, presented at penalty, evidence death souri § by prop- jury statutes, process question was submitted deny him due related phase guilt of the trial. instruction in the because he er equal protection of laws permitted, under jury was likewise penalty The is retarded and the death claims he instruction, such evi- to consider height- proper comport with a “does scheme penalty phase of trial as applied to dence scrutiny test as ened [defendant] class;” mitigating circumstance. presen- that the and [defendant’s] The “require[s] Constitution that the sen- responsibility punishment to determine precluded tencer not be considering from failing to require that the jury writ- submit mitigating as a any aspect factor of a de- findings ten aggravating factors its fendant’s character any or record and agree verdict when upon punish- it cannot the circumstances of the offense that the Again, argument ment. rejected proffers aas basis for sen- in Griffin, at 488. tence less than Ohio, death.” Lockett v. point, In his next defendant makes a 586, 604, 2964-65, U.S. 98 S.Ct. variety claims in subpoints seven con- (1978). 57 L.Ed.2d However, as dem- instructions, cerning jury mostly giv- those onstrated, alleged evidence of defendant’s during penalty phase. argues en He jury mental deficiencies was before the jury that if the had he been instructed as sentencing judge. judge The at stated they proper, may maintains have been punishment the time that he assessed agree punishment able to left specifically he had taken into account the judge. argu- the decision A similar condition, youth, defendant’s mental and ment was found to be “no than specu- more background. point fails Sandles, lation” any out instance judge which the trial 172-73 refused to consider aspect of defen- 993, (1988). 108 S.Ct. 99 L.Ed.2d 513 dant’s Eddings condition character. subpoint, In his first defendant claims Oklahoma, 104, 116, 455 U.S. 102 S.Ct. (MAI-CR that Instruction Nos. 31 and 36 869, 877-78, 71 L.Ed.2d 1 31344) 3d v.Mills holdings violate the argu- Defendant also makes the novel Maryland, 108 S.Ct. ment that the trial court denied him due (1988), McKoy L.Ed.2d 384 process sentencing him to be- — —, Carolina, North presentence report pre- cause was not (1990), 108 L.Ed.2d 369 because pared by neuropsychiatrist. con could read to forbid from be authority cites the Court to no for this sidering mitigating factors which are not proposition. point is denied. unanimously. in State found However 243, (Mo.banc Petary, 790 244-45 S.W.2d capital

Defendant that contends recently this Court held on remand punishment categorically is unconstitution — Supreme Court, from the United States al prosecutors because have the discretion U.S.-, 1800, 931 110 S.Ct. 108 L.Ed.2d penalty. to seek or waive the death This that MAI-CR 3d given repeatedly rejected Court has this conten conjunction in other instructions also McMillin, tion. State v. given (Mo.banc jury do restrict the in 1990). in case not McKoy. violation Mills argues imposition of Defendant that by judge pursuant the death sentence the subpoint argues next Defendant’s 565.0304, to RSMo violates § refusing that to the trial court erred I, a jury to trial under Article §§ on extreme mental dis submit instructions of the Missouri Constitution. This and 21 capacity appreciate to the turbance and his too, argument, has been considered criminality of his conduct or conform rejected by Griffin, this Court. State requirements of the law. conduct the (Mo.banc), de cert. The found there was insuf trial court that — —, nied, S.Ct. their submis ficient evidence warrant L.Ed.2d 1036 point appeal, sion. On defendant fails evidence. such contends that also 565.0304, pro the alleges violates due Defendant also that trial § the on allowing jury failing jury cess the to abdicate its court erred in to instruct by given in this 1. MAI-CR3d 313.44 has been modified since the 243 addresses the instruction case. Petary, trial in case. State voluntary manslaughter involuntary limiting aggra forth a the construction of manslaughter. vating The trial court found that requiring circumstance that at least there was insufficient evidence for either one a list of factors set forth instruction, Preston, clearly that conclusion is 10-11 by 893, 105 record. supported (1984), present L.Ed.2d 205 be before phase, During penalty jury was finding depravity of mind be found will on each count that could instructed be The supported the evidence. statutory aggravating find three circum- in Griffin, at stated 1) that the stances: murder was committed that or “evidence that the murder victim while the defendant engaged was other victims at the murder scene were homicide; commission of another unlawful or wounds beaten evidence that numerous 2) that the murder or de- involved torture upon support were inflicted a victim will pravity of mind and that thereof result aggravating circumstance.” Uneontro- vile, outrageously wantonly it was or horri- beat, that verted evidence defendant inhumane; 3) ble or that the murder was kicked, stomped the Miller brothers committed while the defendant en- was severely repeatedly them and stabbed perpetration gaged attempted or Photographs graphical at trial. presented robbery. assessing perpetration of In sen- portray ly the numerous wounds to tence, judge trial all three cir- found finding not error. victims. on each cumstances count. The aggravating contends that these circum- challenges ag also stances are unconstitutional. the murder gravating circumstance submitting In the commission the defendant was was committed while killing may aggravating be attempted each an cir engaged perpetration or murder, of the other robbery, cumstance because the evi perpetration of that the trial court erred because robbery maintains indicated that had been dence being same place. this results fact counted took completed stabbings before aggravating However, as two circumstances. This en murder “while commit transparent. killing robbery conundrum that mon gaged in” does mean aggra each victim was not submitted as an from the ey property must be removed vating Undisputed for that victim’s murder. body. factor own evidence lifeless victim’s duplicitous. Thus submission was stabbed the that the defendant established otherwise, multiple pro itWere commission of of a victims as the culmination two an robbery. murders could never be submitted as Submission tracted and vicious circumstance, re aggravating an untenable find and the the circumstance was no error. See State v. judge by sult. There error. thereof vacated (Mo.banc), Petary, 781 S.W.2d 534 points a remaining are Defendant’s — U.S. —, 110 S.Ct. grounds, other hodgepodge allegations of of error: failure 1800, (1990), 790 108 L.Ed.2d 931 aff'd. after the trial judge the trial to recuse of (Mo.banc 1990). S.W.2d 243 of defen- sentencing; before denial but jury to motion a second assess aggravating dant’s for The submission of announcing punishment; judge’s involved the trial the murders circumstance that pre- a the sentence would be before of and that as a what depravity or mind torture investigation completed outrageously or wan sentence thereof was result jeopar- sentencing; a formal double vile, or inhumane is chal before tonly horrible judge of argument; by review trial dy the hold under lenged as unconstitutional cases; by of the court Cartwright, 486 consideration ings Maynard v. U.S. other of circumstances; (1988), nonstatutory aggravating 1853, 356, 100 L.Ed.2d 372 108 S.Ct. 420, adoption of Georgia, court’s Godfrey v. postconviction 446 U.S. 100 fact, findings of conclu- (1980). proposed A 1759, sim State’s 64 L.Ed.2d 398 S.Ct. order; indi- request for Griffin, denial sions addressed ilar contention was dire; failure to accede defen- vidual voir 490, Court set at in which this 716

dant’s sequestration jury; waiver of vicious assault on two men who were allowing peremptory the State additional so intoxicated as to be unable to defend strikes; jury failure have second for themselves. amply This supports evidence penalty phase; sustaining objections to each of the aggravating circumstances some of defendant’s voir dire questions; by found judge. the trial cause; jurors refusal strike certain sponte to sua judge failure trial strike Finally this court concludes jurors; sustaining objection certain to de- of the cruel view and brutal nature of the fendant’s statement to the that a life crime, and the fact helpless the two parole sentence without meant defendant repeatedly were stabbed despite victims prison; would die in quash failure to plea by them, punish for life one grand reasons; petit juries for host of imposed case ment is not excessive Kentucky, that Batson v. 79, 476 U.S. 106 despite disproportionate or the defendant’s 1712, (1986), S.Ct. 90 L.Ed.2d 69 was violat- age intelligence. Among numerous ed; photographs admission of slain vic- Court, by cases considered those most tims; admission defendant’s statement State similar to the case at bar are: concerning robbing people day; all lack of Sidebottom, (Mo.banc), 753 S.W.2d 915 deliberation; improper prosecutorial argu- denied, 975, cert. 515, 488 S.Ct. U.S. 109 ment; and, permit refusal defense wit- Antwine, (1988); State v. 102 L.Ed.2d 550 testify ness Dr. penal- Decker the death denied, (Mo.banc 1987), cert. 743 51 ty is deterrent. 1017, 1755, 486 U.S. 100 108 S.Ct. L.Ed.2d carefully The Court has examined each Rodden, (1988); State v. 217 728 every point subpoint asserted Mathenia, (Mo.banc 1987); 212 702 State the defendant and no finds reversible error denied, cert. (Mo.banc), S.W.2d 840 477 and concludes defendant received a fair 3286, 909, 574 106 S.Ct. 91 L.Ed.2d trial. Grubbs, 724 (1986); State v. 565.035.3, 1986, Pursuant § denied, (Mo.banc), cert. 482 U.S. independent Court must conduct an review (1987); S.Ct. L.Ed.2d 707 imposition penalty. of the death The Wilkins, (Mo.banc 1987); required Court is to determine: Kentucky, sub nom. Stanford affirmed (1) Whether sentence of death was U.S.-, 106 L.Ed.2d S.Ct. passion, imposed under the influence of Battle, (1989); State v. 661 S.W.2d 487 any arbitrary factor; prejudice, or other denied, (Mo.banc (2) supports Whether the evidence (1984); 80 L.Ed.2d jury’s judge’s finding statutory or of a Lashley, State v. 667 S.W.2d 712 aggravating circumstance as enumerated rt. 105 S.Ct. ce 2 oí subsection 565.032 § L.Ed.2d found; other circumstance Whether the sentence of Rule 29.15 pen- disproportionate excessive cases, imposed considering alty in similar pro se motion and mo- amended crime, strength both the of the evi- judgment tion to and sentence vacate and dence the defendant. gross case of the constitute abuse care- has examined record governing post-conviction proceed- rules fully that and has found no evidence ings. A motion under Rule 29.15 is limited imposed sentence was under the influence grounds allege that the conviction and passion, of prejudice arbitrary other of “the by sentence are tainted violations factor. or the constitution and laws state of the United constitution States....’’ It was that defen uncontroverted of pro And, indigent files a when an movant brutally dant killed both beat victims after counsel se victims; appointed motion events court robbing the these and responsibilities in con- continuing charged in with certain occurred the course of and

717 filing and preparation charges nection with of number of of ineffective assistance counsel, an amended motion. of all of which were treated All re- by detail the motion court. some Here, by pro prepared se motion was maining grounds are deemed abandoned. alleged attorney defendant’s trial 84.13(a); 29.15(a), (d); Rule Rule See also assignment every practically each and 580, (Mo. State, 779 583 Sloan prepared she had the motion for new trial 1989); State, banc Amrine 785 into sought to convert such errors inef- 531, (Mo. 1990). 536 banc grounds. of fective assistance counsel pro pages of se motion consists 63 by is limited Review this court to wheth subpoints. approximately points 100 findings mo er the and conclusions of the This, turn, incorporated into clearly tion court are erroneous. Rule 29.- motion, added additional amended which State, 791, 15(j); Sidebottom v. of charges assistance coun- of ineffective — (Mo. 1989), denied, banc cert. sel. -, 3295, 111 L.Ed.2d 804 S.Ct. indicated, (1990). motion for a

As aberrant “heavy Defendant bears burden” pro motion under Rule new trial and the se attempting counsel to show that trial attorney Mar- prepared by trial ineffective, 29.15 were and must overcome post-conviction Marxkors. At ianne strong presumption that counsel was trial hearing admitted she was the author of she State, effective. Sanders v. therein, including “grounds” asserted (Mo.banc 1987). prevail, defen To charging all those her with ineffective as- of preponderance dant must show a counsel, acknowledged sistance of she (1) his attorney that failed to exer evidence an had emotional attachment the defen- customary diligence skill and that a cise the hearing dant. At the she found her- often attorney reasonably competent per would admitting many self-charged of self her circumstances; and, form under similar transgressions were the result of trial thereby prejudiced. he was that Strick strategy testifying upon but then re- Washington, land hindsight flection and she would have done (1984); L.Ed.2d S.Ct. things differently. State, (Mo. Sloan v. — U.S. —, banc Attorney Marxkors is no novice. She is 108 L.Ed.2d 776 experienced lawyer. an criminal defense public She has been with the defender’s alleges that his trial represented 600 to office since 1982 and counsel was ineffective because she failed defendants, trials, tried 20 to right testify him of his at the to advise Her and tried four murder cases. admitted penalty phases . guilt and trial. emotional attachment for the defendant expressed to save his life do not desire hearing, During the motion defendant’s presented situation excuse the anomalous that defendant had trial counsel testified attorney charging herself with by the trial testify, and that she had discussed asked to duty to flagrant derelictions of her client it with him on at least two occasions. She such accusa- testifying support may thought stated that while he not have And, movant appointed for tions. counsel under the United States as allegations obligation to had an screen Constitution, anticipated defendant had allege grounds pro of the se motion and part as a would take the stand that he supported by only were facts those which further testified the trial. Counsel purview fall within which strategy her she told defendant of trial rule. mentally he was too im- showing that coolly upon conse- following paired to an evidentia- The motion court reflect actions, and indicated hearing, findings, quences conclusions and ry filed testify, might were to he concerning allegations all in both the him that he order if impres- ap- appear intelligent more than the In this pro se and amended motions. given experts the who evaluated preserved has limited sion peal a discussion, him. After felt guilt she that he phase and two during witnesses the understood strategy that the wiser was for punishment phase. Of the four witnesses stand, him not to take the and he ac- appear during guilt who did not phase, quiesced in Additionally, the decision. counsel was unable to locate three even Attorney Assistant Circuit who assisted the attempts, after they substantial did not prosecutor that, in case testified in the testify at hearing. 29.15 Rule The defendant, presence of she had dis- hearing fourth testified at Rule 29.15 attorney possi- cussed defendant’s contrary allegation in to the defen- bility testifying. the defendant Defen- motion, dant’s did not see defendant on the appeared listening dant to be when defense night of murders. Both witness- said counsel “We talked about it and we es appear during penalty who failed to not decided to.” The motion court found phase subpoena. did so in defiance of credible, testimony and denied defen- Lastly, defendant claims counsel was inef- allegation of dant’s ineffective assistance. fective because she called one Minnie The decision to as whether However, at Barnes trial. the record re- testify should has been called “the most veals that not in Minnie Barnes fact was difficult decision for a defendant called as a witness. State, counsel to Hughes make.” motion findings The court’s that defen- (Mo.1974),quoting United dant’s counsel was not ineffective are not Garguilo, (2d States v. 324 F.2d clearly erroneous. Cir.1963). Advice counsel that a defen more, testify, dant not is without not in judgments are affirmed. competence “might be considered Strickland, strategy.” sound trial ROBERTSON, RENDLEN, HIGGINS, 2065; U.S. at 104 S.Ct. at State HOLSTEIN, JJ., COVINGTON and Turner, (Mo. banc concur. L.Ed.2d The motion court’s C.J., BLACKMAR, part concurs conclusion that to defen counsel’s advice in part separate opinion dissents filed. concerning testify dant did not constitute ineffective assistance is not BLACKMAR,’Chief Justice, concurring clearly erroneous. Point denied. part dissenting part. also asserts trial counsel I concur in the convic- affirmance point alleging ineffective in a a raft of tion, join princi- the comments shortcomings. allegations These are with- pal opinion relating briefing. I am not out merit. Defendant claims that his satisfied, however, that the kind this is psychological scores on tests would have appro- case in which the death sentence if been while been lower he had tested still priate. In the absence of articulated suffering the effects of street residual responsi- of our standards for the exercise However, drugs. undisputed it is that he proportionality bility for review under drug did inform counsel of his use until 565.035, unwilling I am § long after such effects have abated. would concur in the affirmance of the death sen- complains that counsel Defendant further I mitigate tence. find it easier vote prosecutor objected have when the should jury the death sentence because the instruct must did not unwilling impose penalty, aggravating returning find factors before sentencing judge. left stating they could not deter- verdict cases, In some death sentence the defen- prosecutor’s argu- punishment. mine planned killing dant has carried out he improper, because did not ment was Leisure, purposes. law, his own See State proper instructions misstate the 1988); (Mo. banc 749 S.W.2d 366 jury. were submitted to Gilmore, (Mo. 1985); banc failed to secure the complains that counsel (Mo. Laws, during 661 S.W.2d 526 banc of four witnesses the State v. attendance

719 and, 1983); easy its princi- in has never rested cases cited The Court responsibility proportionality review. Sloan, pal comparable, v. opinion as State regularly death early The affirmed eases (Mo. 1988); v. 756 S.W.2d 503 banc State noth- sentences on the basis that there was (Mo. 475 banc Griffin, Milton 756 S.W.2d prone are compare.2 The later cases me, 1988). aggrava- most To these are the presenting cases search the books for penalty cases. ted of the death circumstances, fol- comparable one or more principal opinion relied on Others lowing which there affirmance. is a routine wanton, by the are violent characterized I do not believe was is what outrageous conduct the defendant. contemplated by legislature it (Mo. Sidebottom, 753 915 State v. S.W.2d proportionality review as mandated 1988); 667 Lashley, banc v. S.W.2d State selecting the cases in which the means of Battle, (Mo. 1984); 712 banc State v. 661 penalty is be exacted. The ultimate (Mo. 1983). My proceeded by 487 banc Those cases hunch. hunch S.W.2d has Court in out one, this case is is that the death sentence comparable are more to this but in has cases which death line with other outrageous me be than seem to more been decreed. following this case. I note the circum- (1) years of 18 stances: was degree murder The conviction of first (2) age; grew out of the altercation ab- Because of the should be affirmed. spree; no indication drunken there is re- proportionality sence of standards for killing view, de- life contemplated when the sentence to I would reduce the imprisonment probation parole. companions and his out on without fendant started The robbery their course of and violence. opinion gory

principal properly exposes the details, killing be but deliberate can shed.

described terms blood no There is articulation of a standard AND FEDERATED MORTGAGE distinguish from other cases this case COMPANY, INVESTMENT degree first murder. Appellant, killings weigh certainly in fa- plural v. juries not vor of a death sentence. Yet Stephen K. and Sharon JONES infrequently have assessed life sentences Jones, Defendants, person has more than one cases which also plural are been killed.1 robberies sentence, of a an indication in favor Eugene Company, D. Brown impul- robberies here involved seem but the Realtors, Respondent. by spirits. There heavily fortified sive and No. 72694. con- the robbers robbery is no which Missouri, Supreme be beginning sidered from the that would En Banc. victim, necessary kill the there (Mo. Johns, 679 253 banc v. S.W.2d State Nov. 1990. Jones, 1984), v. 749 S.W.2d and State 1988). (Mo. crime Nor there a banc Kenley,

spree reminiscent State 1985). (Mo. banc S.W.2d (Mo. Mercer, Mitchell, (Mo. banc banc 2. State v. 611 S.W.2d 1. State (Mo. Newlon, Baskerville, 1981), 1981), 616 S.W.2d 839 State v. State (Mo. Downs, 1981), 1982). (Mo. 593 S.W.2d 535 banc Dunn, (Mo.App. 1980), State v. (Mo.App. Clark, 1987), State v. Carr, (Mo.App. State v. 1985).

Case Details

Case Name: State v. Powell

Court Name: Supreme Court of Missouri

Date Published: Nov 20, 1990

Citation: 798 S.W.2d 709

Docket Number: 70518

Court Abbreviation: Mo.