*1 companies All insurance may ... deduct premium
from ... payable taxes exami-
nation paid fees ...” all respect
With due majority’s at-
tempt parse statute and consider statutory
other language, I believe this
language is simply most clearly read
to allow the any premium deduction from payable,
taxes even in years. future Missouri, Respondent,
STATE of Clayton SMITH, Appellant.
John
No. SC 82000. Missouri,
Supreme Court of
En Banc.
Dec. 2000.
Rehearing Denied Dec. *7 Kurz living with Yvonne to continue
chose Wayne Hoewing. and month, appellant contacted Later that -wife, Smith, visiting about Mary his former had not visited his Appellant children. prior a half to that year for and children with his children Appellant visited time. June, giving once during times several and coin collec- savings bonds Smith some children have. he wanted the tions that morning 7:30 on the At about a.m. drove O.C.’s July in Canton and looked Kearnes’s Tavern car, next parked which had been the lot night Ap- to the tavern since the before. Brotherton, Gary E. Melinda K. Pender- later, proximately appel- fifteen minutes Columbia, Defender, graph, Asst. Public asked she telephoned lant what Smith Appellant. for planned day. do children that with the Nixon, (Jay) Atty. gen., Jeremiah W. upset. When Smith asked Appellant Gen., Mackelprang, Atty. J. Asst. Shaun “Everything.” why, replied, City, Respondent. Jefferson asked if he Smith When Brandie, said, he having difficulties with COVINGTON, Judge. I talk everything. can’t about “Just Smith, Appellant, Clayton John was con- up. go,” hung I Some- gotta now. victed of two counts of murder in the first morning, appel- the same time later 565.020.1, degree violation section Kurz telephoned Yvonne and asked lant counts of crim- RSMo and two armed night home Brandie had come whether 571.015, action in inal violation section had responded Kurz Brandie before. Appellant RSMo sentenced asked, come home. then on each count of first murder degree death else, seeing she?” someone isn’t “She twenty-year and to consecutive terms on afternoon, appellant, after Later Appel- armed criminal action counts. driving highway, Brandie on the seeing appeals lant his convictions and sentences. her to Brian Brooks’s house followed Affirmed. driveway. up behind her pulled spoke out her car and got Brandie Facts Appel- appellant for about three minutes. light Viewed most favorable *8 left. lant then Barton, verdict, purchased a 1999), p.m., appellant 11:05 the facts as follows. At are Kearnes, twelve-pack of at a convenience store Appellant dating Brandie beer began The clerk in 1995. store noticed of the two victims this Canton. one appeared and to time, preoccupied was appellant Brandie lived near Canton At Appellant left the mother, Kurz, her in a “weird mood.” her Yvonne and be with and, 1:48 sometime after Hoewing, the other vic- convenience store step-father, Wayne 5, 1997, July and drove residence dating, were Brandie a.m. on they tim. While Wayne and Hoew- Ap- Brandie Kearnes plans together. to live where appellant made $30,000 parked his truck Appellant to buy ing a house resided. pellant borrowed resi- thirty yards from the approximately himself and Brandie. Around June with of the beers 1997, however, Taking re- some Brandie terminated the dence. him, guns three he had she lationship appellant, after which but truck, appellant walked around a dead. She had been partially stripped of large pond on the property ap- and clothing. lying her She was up face on the proached the residence. Appellant en- kitchen floor. cut Eight or stab wounds tered the through residence the basement neck, chest, had been inflicted on her ab- door, shoes, took off upstairs. his and went domen, arm, and thigh. The stab wounds punctured to the chest lung, Brandie’s and
Appellant located began Kearnes and to the wounds to her abdomen cut her liver scuffle with her in the living room and kidney. and one personnel The medical kitchen Appellant area of the house. Wayne Hoewing briefly, treated but soon stabbed or cut eight Brandie times pronounced him dead. He received eleven the scuffle. The wounds did immedi- chest, arms, cut or leg, stab wounds to the death; ately cause Brandie’s time she had “— hand, hip. and He bled to death from to write “It was “I Tatú-” Joh-” those wounds. andi s-v-T-tum” on the kitchen floor with her own blood. The last two messages Police pieces found several of evidence Tatum, referred to Brandie’s infant daugh- at the scene of the crime. Police noticed a ter, who was found unharmed at the feet of by appellant trail of blood left as he left body. Brandie’s appellant’s the house. One of socks was Appellant then Hoewing’s entered the body recovered from Wayne under the bedroom and Wayne, attacked who had Hoewing. Police found three beer cans been awakened scuffling the sounds of outside of the residence and also found the coming living Appellant from the room. keys by appellant used to break into the got top Wayne on the and began bed being apprised days house. After several him, stabbing inflicting cut eleven stab or messages after the murders of the written wounds. Kurz attempted push Yvonne floor, police with blood on kitchen appellant Wayne, appellant off but slashed bearing seized the linoleum those mes- her arm. She retreated into the bathroom sages. police any weap- not find The did appellant closed the door. While was however, in July, ons. Later a worker at bedroom, at the Wayne door farm attempted where had gain possession able to gun a loaded he steal the tractor found a knife hidden un- kept Appellant, seeing house. der some tin. original owner of the said, gun, “Shoot me. Go ahead and shoot knife identified it as the knife she had fired, however, me.” No shots were and given appellant. left Kurz bedroom. trial, At did not contest eventually help able to call for from the killer, identity offered as but he bathroom. testimony Stacy, of Dr. Michael who testi- Appellant then went back downstairs capacity fied deliberate and left the through house the basement substantially im- killings before the door after putting on his shoes. paired. expert testimo- The state offered Hoewing walked from the residence to the ny diagnosis to rebut and find- Stacy’s Dr. nearby farm of Bill Lloyd, where he hid appellant guilty on ings. found his knife under tin attempted some first degree both counts of murder crashing steal tractor. After the tractor and both of armed criminal action. counts into a property, ap- flatbed trailer on the *9 pellant on foot. eventually fled He trav- trial, During penalty phase the residence, nearby eled another where he appellant’s the state introduced evidence of a away. stole truck and drove Soon there- women, prior history appel- violent with after appellant apprehended was after prior felony stealing lant’s convictions crashing the truck. protection, and an order of and violating personnel impact
When medical reached the the that had on the the murders residence, Hoewing already presented Brandie was the Appellant victims’ families. Appel- permit revocation matter. family Mends and the work testimony of and on that was professional permit of a mental health lant’s work revoked testimony concerning At a punishment. hearing in of samé date. mitigation disquali- should be prosecutor whether the phase of penalty the close the After in the appellant fied from prosecuting and after the instructions and case, present prosecutor the testified counsel, jury found the arguments of the permit of he had recollection the work no following aggravating circumstances with representation. that the mur- regard to Brandie Kearnes: Brandie was der of Kearnes committed 1983, charging years prior In fourteen in the appellant engaged com- while case, prosecu- the appellant in the instant of another unlawful homicide and mission represented appellant felony on a steal- tor ap- murder was committed her while sentencing on the ing charge. Pursuant engaged perpetration in the of pellant was in felony charge, court stealing the Wayne respect a With Hoew- burglary. presentence investigation case a ordered aggrava- ing, jury found that the same the hearing At on report made. the to be ting applied. jury also circumstances appellant’s prose- the disqualify, motion Wayne’s murder involved de- found having cutor that he remembered testified in pravity of mind the murder was 1983, in represented appellant but that he vile, horrible, inhuman. wantonly and of anything did not recall about the facts a recommended sentence of death on that case. each of murder in the first degree. count upon cases in touching Evidence both 1999, imposed On trial court July appellant which prosecutor defended in accordance with the recom-
sentence during appellant’s trial admitted addition, jury. mendation appel- instant The motion case. to revoke appellant court sentenced to consecutive permit lant’s in 1981 was work release twenty years department terms of following filed two confrontations between of on the criminal action corrections armed Daniels, appellant appellant’s Muriam appeal This counts. followed. girlfriend. during former Daniels testified penalty phase appellant’s of trial for I. appellant murder. stated that had She trial Appellant claims that court cars, pulled after twice her out once discretion abused its when overruled his breaking through car’s window disqualify County motion to the Lewis his fist. described an incident She attorney, prosecuting thereby violating his which came school and into her trial, rights process, to due to a fair and to Dan- up against threw her some lockers. punish- be free from cruel and unusual hav- up iels testified that “ended Const, V, VI, VIII, ment. U.S. amend. him.” ing restraining placed a order on Const, I, XIV; Mo. art. secs. felony stealing The state used the 1983 18(a), 21.1 appellant’s as prove conviction to status prosecut- prior that before and introduced it The record reflects offender murder, support ing appellant degree phase for first trial proof of prosecutor aggravating twice acted as de- an circumstance. April counsel. On sixteen fense charged governs disposition 4-1.9
years Rule before prosecutor appellant’s claim of The rule entered an of conflict. instant appellant’s attorney reads: appearance as on appeal. error cites the federal and state same provisions points for each of constitutional
A in lawyer formerly represented gleaned repre- who has mation he the course of appellant. Appellant’s a client in a matter senting shall thereafter: conviction present (a) only prove was used case to represent person in another the prior Appellant’s that he awas offender. substantially same or a matter in related record, public conviction a matter of was person’s which that interests are materi- any prosecutor. available to prosecu- The ally the of adverse to interests the for- tor not be disqualified simply need for mer client con- unless the former client consultation; entering felony stealing after conviction into sents Clark, evidence. State (b) relating rep- use information to the 4-1.9(b). (Mo.App.1996); Ap- 403-04 Rule resentation of disadvantage to the pellant showing has made no that the mat- except former client as Rule 1.6 would substantially ters are related. permit respect to a client or when generally the information has become only Appellant cites one case in which known. the court discusses the of facts the case eye determining with an toward whether (a), respect With to subsection there is representations the various are substan- question prosecutor represent- no that the Bowersox, tially related. Wilkins v. ing by prosecuting the state in this (W.D.Mo.1996), F.Supp. petition- appellant by seeking penalty of death, argued right er Wilkins that his to due acting adversely appellant’s question process of law had been violated because interests. There is also no in appellant prosecu- prosecuting attorney degree did not consent to the his first represented tor’s of state. had him in involvement on behalf murder case a determined, only to be there- question juvenile approximately years case six be- fore, in is whether the earlier cases which fore failed to disclose that fact to the prosecutor defended are sub- trial court or defense counsel. The stantially related the instant case. sought penalty. state the death The dis- trict court stated that threshold “[t]he Appellant speculates pros that the question prosecution ... is whether the involving ecution knew of the events Mu- for the murder ... had a substantial rela- was, knowledge riam Daniels and that his tionship juvenile court matter in least, in factor his decision seek the “[wjhether 1979” and that is a there ‘sub- penalty. appellant eventually death As relationship’ stantial involves a full consid- concedes, he burden does meet his of in eration the facts circumstances prosecutor’s under the rule. The connec Wilkins, F.Supp. each case.” at 1522- pro permit tion to the work revocation The court found that mental Wilkin’s single ap ceeding 1981 amounted to juvenile health was central to both the pearance day made on the on which the proceeding and first charge degree of permit trial court ordered the revoked. representations murder and that the two This connection is de minimis. As for the were, therefore, substantially related. Id. felony stealing although conviction at 1523. The court then issued a writ of prosecutor com likely privileged had Wilkins, corpus stating habeas favor enter-, appellant prior munications with that “the entire conduct of the criminal ing plea, the record does not guilty proceeding obviously by affected assumption provide support appellant’s for prosecu- conflict of interest caused prosecutor engaged any representation and his nondis- prior tor’s any that had communication with closure.” Id. at 1524. whatsoever to the later murders relevance distinguishable in this Nor does the Wilkins is on its facts. the victims case. relationship prosecutor’s between the provide support record as representations earlier and his sumption prosecutor sought him in is not prosecution death because of other infor- later this case
543 client. the same relationship communications with as the between so substantial in Reaves, Similarly, at 107. in 574 So.2d representations at issue Wil- the two 111 760 Wash.2d Stenger, no central State In this case there is kins. (1988), of Wilkins, Court issue, Supreme 357 the in P.2d such as mental health prosecutor that a who Washington held permit to the work revocation common conviction, criminal Stenger had on two stealing the defended proceeding, felony levy seeking to charges years in the before charge and of murder first ten the reason, him have been penalty should degree. For the same the death the 1992), court that Ross, disqualified. The noted 829 948 disquali- normally not be support prosecutor In would claims. does circumstances, the case, in in since light of fied these that which was decided the first 4-1.11, of murder in lawyer charge aggravated and who Rules 4-1.7 accused’s degree “unrelated to the part-time prosecuting as a assistant served the which previous concerning defendant in a crimes attorney represented the him.” attorney represented arising prosecuting civil out of the same facts for case court went Stenger, P.2d 360. The charged by defendant had been an- which however, im- that say, potential on to the lawyer who was a member of the other the changed lawyer. Measuring position penalty the the death same firm as first of by analysis: in language that circumstance the Rule
4-1.9, it is clear that in Ross there was a prosecuting information the factual relationship substantial between civil by from accused obtained attorney cases, very namely, same criminal pre- attorney’s prosecuting virtue of the approaching set that Nothing of facts. ac- representation vious legal case. relationship exists in the instant cused, including information about background and earlier defendant’s Despite on the one his assertion hand conduct, is infor- criminal and antisocial that matters in are pros- closely mation interwoven with substantially present related to his attorney’s discretion ecuting exercise of in explicitly also concedes both pres- penalty in the death seeking that original reply his briefs if he ent case. any punishment faced but death he would prosecutor’s disqualification question ability to Id. court ordered the effect, therefore,
prosecute prosecuting attorney. him. In he that he not meet his burden concedes does that it persuaded is not This Court 4-1.9. in Appellant argues under Rule 4-1.9, Rule under which should abandon penalty all death cases defendant representations allegedly the various pre- should benefit from an irrebutable be must result in a conflict interest sumption privileged information was more something substantially by connected attorney prosecuting obtained when they if are prosecutor than himself and is being he was defendant’s counsel ap substantially related. A focused be disadvantage. used to the accused’s the rele proach, the court examines where support vant the case order to determine Appellant cites two cases facts of are substan whether the various matters penalty cases are argument death State, related, tially preferable. This Court different. Reaves v. So.2d en- (Fla.1991), its rule without will continue to follow Supreme Court Flor- decision, de said, exception it an for first grafting upon ida a conviction “Under this if cases which the gree reversed the trial court denies murder must be as approach, sought. a death is Under this pretrial disqualify defense motion above, the trial decision prosecutor previously has discussed court’s who defended prosecutor was not an matter not to disqualify criminal defendant likely abuse of discretion. involved confidential involved *12 expect
II. prove guilt beyond the state to a reasonable doubt. When asked whether Appellant contends the trial court fill sign she could out and a verdict form erred when it sustained the state’s chal- death, sentencing the defendant to Fox Fox, lenge venirepersons for cause to unambiguously answered that she could Douglas, and Deihl. alleges not. that the state is not entitled to strike a
juror
juror,
for the sole reason that
the
court,
The trial
after
into
taking
consid-
acting
foreperson,
sign
as the
cannot
the
respons-
eration Fox’s “demeanor and ...
verdict assessing
penalty
the
of death.
es,”
ability
that her
to
decided
consider the
range
punishment
impaired.
full
of
Venirepersons may be excluded
Considering
qualified
Fox’s
answers con-
pre
from the
their
when
views would
cerning
ability
impose
her
the death
impair
perfor
vent or substantially
the
penalty
having
after
been convinced be-
jurors
mance of
their duties as
accor
yond a
reasonable doubt of the
dance with the court’s instructions and
guilt
unequivocal
and her
statement
Witt,
their
Wainwright
oaths.
469 U.S.
sign
assessing
she could not
a verdict form
412, 424,
105 S.Ct.
During
capital
together
the state’s voir
Fox
low the law in a
case
repeatedly
unequivocal
stated that she would find it
an
statement that he could
provide
sign
“hard” to sentence someone to death. She
a verdict of death can
a basis
thought
“probably”
impose
venireper-
the trial court to
she
could
exclude
Rousan,
if
jury.”
death
the crime was “atrocious
son from the
840;
Kreutzer,
enough.” She stated that she would not
see also
at
follow, however,
counsel s state-
by the state to defense
as
866-67.
It does
insists,
meaning of “life
equivocation
concerning
ments
that both
counsel
being
parole.”
an
Defense
said
unequivocal
statement about
without
“[Tjhese
are
terms
required
panels,
able to
the death verdict
of the voir
sign
one
dire
may disqualify
exactly
they say.
before
trial court
death
mean
what
venireperson.
unequivocal
An
Life without
says.
statement
what it
penalty means
venireperson’s inability to
At
concerning a
without....”
this
parole means life
*13
a
alone is
sign
enough.
verdict
trial
death
and the
court
point
objected,
the state
686,
(Mo.
Johnson,
v.
968 S.W.2d
objection.
Defense counsel
sustained
1998).
uncompromising
banc
An
state-
continued,
in the instruction
terms
“[t]he
by
that he or she
juror
ment
a
refuses
exactly
they say,” at which
mean
what
sign a
hints at an
death warrant
uncertain-
objected. The
time the
trial
again
state
ty
juror’s
determination to
underlying
objection.
again
court
Two
sustained
punishment.
of
No
range
consider the full
panel
persons from the voir dire
served
panel
jurors,
all of whom
twelve
decided
jury.
now contends that the
sign
that he
could not
verdict
or she
jurors’
court’s
“confirmed” the
trial
action
penalty
assessing
against
form
the death
law,
misunderstanding
encouraging
of the
defendant,
said to
could be
have the
parole”
to fear that “life without
them
unimpaired ability
appro-
to consider the
parole.
life without
meant
but
anything
priateness
penalty.
the death
trial
without
Appellant’s argument
merit.
court, therefore,
run
did not
afoul of the
repeatedly
The trial court
instructed the
that
rule
“the exclusion of venire members
options
sentencing
that one
must be
to ...
those
limited
whose views
Department
“imprisonment
by
for life
prevent
would
them from
an im-
making
proba
for
eligibility
of Corrections without
partial
question
on the
of guilt.”
decision
parole.”
meaning
tion or
words
648, 657-58,
Gray Mississippi
481 U.S.
parole”
eligibility
probation
“without
for
(cit-
(1986)
2045,
107 S.Ct.
was first
because
prosecution
ap-
be certain that
could not
the writing blended into the other blood pellant
person
would admit that he was the
floor,
patterns
videotape
on the
but a
tak- who
Brandie once the defense
attacked
the initial
police processing
en
began
present
its case. Defense coun-
present
showed that
the writing was
on
opening argument,
sel reserved its
floor at
time.
although appellant argues that his defense
relevancy
“The test
for
is was clear from witness endorsements and
reports presented
prose-
whether
the offered evidence tends to
a doctor’s
trial,
prove
disprove
or
a fact in issue or corrob
cution before
it remains the state’s
other
v. burden “to
all essential elements
orates
relevant evidence.” State
establish
(Mo.
Rousan,
relying
of a
on a
961
848
banc
crime without
defendant’s
S.W.2d
admissions,
extrajudicial
logically
Evidence that is
relevant
statements
admitted,
always
City Albany Crawford,
need not
be
however.
If
v.
confessions.”
“prejudice
(Mo.App.1998).
whol 979
Al-
proffered evidence causes
S.W.2d
fact that the
was writ-
ly disproportionate
though
message
to the value and useful
evidence,
potentially
ness of the offered
should be
ten
blood makes the evidence
other,
state,
prejudicial
graphic
excluded.” Id. The
because it must more
than
less
evidence,
prejudiced by
are not
proving
shoulder the burden
the defen
defendants
doubt,
guilt beyond
graphic
dant’s
a reasonable
the fact that
evidence is
conse-
argument.
point
ap-
venireperson,
at oral
2.
conceded
another
on
cause
appel-
peal, concerning
venireperson
did not
in fact serve on
the trial court's decision to
494.480.4,
jury.
lant’s
Sec.
RSMo 1994.
overrule defense counsel’s motion
strike
into
the linoleum
quence
Feltrop, 803 to introduce
of brutal actions.
so,
messages.
the state
bearing the
To do
was more
S.W.2d at
The evidence
lay
for the
obliged
a foundation
probative
prejudicial.
than
The trial court
by their
writings suggest,
evidence.
it admit-
did not
its discretion when
abuse
use of the
of Tatum and their
mention
ted it.
“I,” that Brandie
personal
pronoun
Appellant cites several cases for the
are,
They
there
was the author.
Kearnes
that,
proposition
per
because appellant
fore,
of who wrote
probative
the issue
haps
identity
admit
when
planned to
addition,
message
messages.
its
introduc
defense submitted
hearsay
“It
on the linoluem was
was Joh-”
messages
tion of the written
not have
admitted unless
that could
been
strictly necessary. These cases are distin
messages
prove
could
that the
the state
guishable. Three of
involved
these cases
To
dying
were Brandie’s
declarations.
evi
introduction
“other crimes”
this,
prove
required
the state was
dein-
Conley,
dence.
messages
were written
onstrate
(Mo.
1994);
Bernard,
State
banc
Brandie
that death was im
while
believed
(Mo.
1993);
banc
v. Col
State
hope of
minent and that she had no
recov
lins,
1994). In
court them. to admit photo that the Appellant argues of the written on the graphs messages
B. “I Tatú-” and “—andi s-v-T-tum” linoleum, from one of which was taken “I Appellant the contends of which crime scene video and the others messages Tatú-” “—andi s-v-T-tum” police taken the re were moments before totally were irrelevant to issue in the any the containing the linoleum writ moved case. floor, the not have been ings from should into As detailed Appellant’s argument is with admitted evidence. state, above, above, out not error to admit the mes merit. As discussed the killer, messages prove identity sought photographs sages. (2000). that, Rather, prove although were introduced to the trial N.E.2d 920 court messages on the linoleum were attempting protect seemed to be found the initial during police investiga- jurors and the evidence from unnecessary tion, messages present were on the contamination. The trial court did not floor at time. Had the state not commit error. photographs,
introduced these could well have concluded that the mes- V. sages were written someone than other Appellant maintains3 that the im- state Brandie Kearnes after sometime Brandie permissibly during attacked his character therefore, pictures, died. provided guilt phase irrelevant using necessary foundation introduc- precept contravention of the “there tion of the messages themselves. The ad- by argument, must be no conduct or other- pictures mission of the did not constitute wise, the effect of which is inflame an abuse of discretion. prejudices passions excite the Appellant argues also that the tri Tiedt, jury.” State v. 357 Mo. al court should not have allowed the testi (banc 1947). Specifically, Lock, mony expert witness Don who appellant complains prosecutor testified that messages, he had found three Smith, Mary appel- not have should asked Tatú-,” Joh-,” “It was “I and “—andi s-v- wife, lant’s former about how much contact Lock, message, T-tum.” one According to appellant had with his children s-v-T-tum,” only “—andi was visible when years preceding one and a half Father’s seen with the aid of light. Appel laser Day, suggests argument largely premised lant’s on his good whether he was a or bad father was messages mistaken assertion that the were any case. irrelevant to issue irrelevant issue in the case. As above, messages decided were admissi guilt phase, Mary In the Smith testified *16 testified, furthermore, ble. Lock that the 1997, following events. June messages an were not written with “assist appellant telephoned Smith several times hand,” thereby proof ed providing further inquire visiting his children. to about that messages by the were written Bran thereafter, Shortly appellant visited his expert’s testimony die Kearnes. The During children a one number of times. probative and unduly prejudicial. The visit he left and coin savings some bonds trial court did not err when it allowed sets with Smith and said that he wanted testify. Lock to his children to have them. These visits dur- by telephone were followed more calls
Finally, appellant suggests that ing appellant which asked about his chil- prejudi the trial court itself added to the day During dren. a call that occurred one cial the by inviting effect of the and killing before the of Brandie Kearnes jurors to handle the linoleum. The record upset. Wayne appellant seemed Hoewing, jurors reflects that the trial court allowed wrong. “[everything” was He stated that pass aby to table on which the linoleum about Bran- hung up He after Smith asked bearing messages sug the laid. court events, die. After testified to these Smith gested jurors that the not handle the evi dence, prosecutor appellant often asked how they but them that cautioned should prior in contact his children if had been with gloves they “absolutely wear felt it was telephone calls and visits. to the June 1997 necessary” to do so. This does not amount had not prejudicial an the Smith answered that implicit to invitation on years for a half part Compare People of the trial court. v. visited his children one and Blue, June, 1997, that prior during Ill.2d to and that Ill.Dec. respect every point appeal, in this In addition to the various federal and state with to Const, I, provisions point art. sec. 17. constitutional that raises he also cites Mo. defense, for the expert an witness approxi- Stacy, the children time he had called from “Re- that suffered mately testified six times. Major Personality Depression current prosecution It true that the is (Not Specified).” He Disorder Otherwise character of a criminal may attack the reviewed records testified he had puts defendant unless the defendant first appellant. prior hospitalizations of of two Johnson, his character into issue. State state, by the During cross-examination (Mo.1978). Contrary objec- without following exchange occurred however, appellant’s argument, this by appellant: tion prosecution case did not introduce Q: and the re- You are aware records in an Mary testimony Smith’s effort [appellant] why flect reasons appar It attack character. is units during checked into these himself state, by eliciting testimony ent that time, they? don’t between concerning appel the contrast Yes, I A: so. believe during lant’s his behavior toward children And, fact, Q: precipitating one of the period immediately preceding the kill why factors of the reasons he and one ings during year his behavior hospital checked into the himself a half killings, attempting before the ex-wife filed for di- time was that his appel to demonstrate deliberation parte against him got vorce and an ex lant. Appellant’s distress about his rela her; choking that correct? isn’t Kearnes, tionship with Brandie evident A: That’s correct. telephone last behavior call Q: he And from 1991 when was di- Smith, is also relevant to appellant’s until there were no through vorced motive. Altogether, the record shows that hospitalizations, were there? trying prove no more state was appellant was a father bad before June No, A: were not. there trying prove 1997 than it was he was Now, doctor, Q: important it is that the good during June of 1997. trial father you rely information on is accurate and court err when it did not admitted Smith’s it? complete, truthful isn’t testimony. A: That correct. testimony, Stacy’s To rebut Dr. state VI. expert Dr. an called Peters as witness. asserts trial court Dr. that he believed that Peters testified *17 plainly its erred and abused discretion and dependent that appellant was alcohol testimony when it guilt admitted personality he suffered from “narcissistic phase Stacy appel- from Dr. Michael that compulsive .” disorder with obsessive traits lant had choked his former wife and testi- inquired as to how records When the state mony Peters appel- from Dr. Jerome that past relationships of formed a basis his fought lant had with a In once coworker.4 responded: diagnosis, Peters Dr. estimation, this appellant’s testimony was pattern pervasive again It showed prejudicial uncharged of crimes of throughout type life of this behav- his totally that to of irrelevant the issue behavior, where ex- ior the self-centered deliberated kill- whether defendant about them, taking advan- ploiting those about Wayne Hoewing. and ing Brandie Kearnes them; with coupled of and also that tage entitlement, display trial, argued feeling is the of appellant At that on entitlement, the ability great of a deal of sched- night killings his to deliber- per- a narcissistic by uling things. substantially impaired ate was the exis- With revolves around sonality everything or Dr. tence of a mental disease defect. appeal, respect every point with on in this the various federal and state addition to Const, I, point he art. sec. 17. provisions that raises also cites Mo. constitutional however, them, established, around also well “that an they [sic] that involve They expert the universe. see themselves as re- may witness be cross-examined They the center of the universe. are not in evidence to test garding facts his very self-centered and with that comes skills, qualifications, credibility or and of an overwhelming the behavior arro- opinion.” validity weight test the and of his gance, a condescension towards those Brooks, by about them. is evidence This some be granted Counsel should employment of his behaviors in his rec- an cross-examining wide latitude when ex- ords, workers, exploited that he some he pert matters. Id. witness test these displayed arrogant an behavior towards of Dr. Regarding testimony up
them and at times ended in violence. Stacy, prosecution permitted prosecutor After the asked for a concrete validity weight of the testimo test the example objection and a defense was over- ny by the doctor concern cross-examining ruled, Dr. Peters continued: surrounding facts ing knowledge his episode standing One is where he is appellant’s prior hospitalizations. The fact person line to unload a truck and one hospi had checked into the taking long. a little bit too He choking implicitly sug tal his wife after up physical ended violence towards mental state with gests person. goes A lot of this to how respect killing to the of Brandie Kearnes personality things the narcissistic sees Wayne Hoewing may have been that occur and it is never fault. It is his than a cause of killing result rather So, always early someone else’s fault. to raise killing. The state was entitled in development they on blame others for suggestion. happens. They really what can never blame themselves because this is their analysis ap An can be identical personality, they things. this is how do Dr. Peters. Dr. plied testimony Thus, got everything right that isn’t has appel Peters testified that he relied fault. That be someone else’s is what past with others when lant’s interactions episode occurred on the one when he Dr. Peters’ testimo making diagnosis. assaulted a fellow truck driver. behavior ny regarding appellant’s violent The record also reflects that before both clearly a co-worker was relevant to toward testimony, doctors’ the court instructed testimony, weight validity of his particularly respect with to the doctor’s testimony, the course of his [I]n [the suffering from diagnosis as may testify to statements and doctor] personality disorder ob narcissistic information that were him received sessive-compulsive traits. inquiry connection with his into the mental condition of the defen- that the tes argues also connection, In that dant. the Court in- timony of Dr. and Dr. Peters was Stacy *18 you structs that under no circumstances probative. This prejudicial more than you testimony should consider that as may Any prejudice that disagrees. Court evidence that the defendant did or did appel have resulted from the mention of charged against not commit the acts fight or with a choking lant’s of his wife him. in advance of the coworker was nullified experts by the court’s testimony
This Court is mindful of the
of both
jury
instruction to the
not to consider the
prior uncharged
fact that “evidence of
mis
did or
purpose
testimony
appellant
conduct
not admissible for the
as evidence that
is
against
showing
propensity
charged
of the defendant
did not commit the acts
Madison,
Burns,
v.
him. State v.
997 S.W.2d
to commit such crimes.” State
1998).
(Mo.
1999).
(Mo.
banc
It is
banc
978 S.W.2d
Hall)
(To
contention,
Q.
[appellant]
When
appellant
In a related
you
did
transported to the ambulance
prosecutor impermissibly
that the
asserts
manner?
process
any
it
to
in that
in
jury
to the
before
retired
assist
argued
verdict,
phase
“[appel
a guilt
determine
helped carry
gurney
I
A. Yes.
trying
he
planned their murder and
is
lant]
gurney
to the ambulance.
and roll
mum-
up
psychiatric
to cook
some kind of
Mr.
Q.
you
Did
remain there while
bo-jumbo
just
to
him
like he’s
get
out of it
in
placed
the ambulance?
Smith was
Appellant
done
that this
argues
before.”
Yes,
with
A.
I did.
I remained
Mr.
statement,
too, was an
to intro
attempt
time.
Smith the whole
uncharged
duce evidence
crimes to
time,
did
Q.
point
what
At
object to
jury. Defense counsel did not
do?
you
statement,
error.
plain
this
so review is for
in the ambu-
put
A. We
Mr. Smith
rarely
grant
Relief should
be
got
and I
the ambulance
lance
plain
an assertion of
error with
ed on
him
him of his Miranda
and advised
respect
closing argument.
to a
State
Rights.
Deck,
exchange,
coun-
Following
appellant’s
this
The com
Relief is not warranted here.
approached
requested
the bench and
sel
pros
was made
the context of the
ment
mistrial, asserting that
Hall had
Officer
urging
jury
find that the
ecution’s
post-
improperly
appellant’s
commented on
degree.
murders were
first
prosecutor responded
arrest silence.
prosecutor
Stacy
made no
to Dr.
reference
improperly
Hall had
com-
that Officer
Peters,
Dr.
them
testimony,
or
silence,
appellant’s post-arrest
mented
specific
appellant
act of
he men
when
that the trial court should instruct
but
appellant
This
tioned what
did “before.”
Officer Hall’s statement
jury
disregard
not, therefore,
is
case
similar
his Mi-
that he had advised
Burnfin,
(Mo.App.1989),
dant’s silence. VII. noting rejected argument, the defendant’s did not the Mi- that the trial that the officer elaborate maintains *19 court also rights. motion Id. 697. The denying appellant’s court erred randa regard- following after discourse noted that there was no evidence for a mistrial the by the prosecutor ing occurred between the and Offi what understood the did not com- lights, cer Hall: and that officer gave lawyer, gave ment on the fact that the he judge, defendant failed he them no respond appeal.” to after being read his Miranda them no court, rights. According Id. to the that, Appellant contends when pure speculation would [i]t be to con- object, defense counsel failed to the trial clude, appellant, as does jury the granted court should a sua have mistrial properly warning understood the sponte and that the trial court should have rights to require response appel- a from granted pursuant a mistrial to the re lant. It is not logical say to that the quests of defense counsel on another occa right of an accused to remain silent is remedy, sion. Mistrial is a drastic howev by informing jury violated a that he had Brown, 531, er. 998 S.W.2d right. been accorded that (Mo. 1999). banc The decision whether to a grant primarily mistrial is left to the trial Id. The trial failing court did not err in court, position which in the best to de grant appellant’s motion for a mistrial on complained-of termine inci whether the point. this prejudicial jury. dent had effect on the (Mo. Johnson, State v. 968 S.W.2d VIII. banc This Court will reverse a Appellant complains of several if only challenged conviction the comments prosecutor’s statements during made verdict, jury had a decisive effect on the guilt state’s penalty phase closing and ar- meaning proba that there is a reasonable guments. Appellant suggests that, comments, bility absence prejudiced statements his cause in a num- the verdict would have been different. ways: by jurors ber of suggesting Winfield, explain would have to their decision 1999), denied, cert. 528 U.S. trial; family by Mends and after the sug- (2000). 967, 145L.Ed.2d S.Ct. gesting propensity has a behaving in a manner consistent with prosecutor’s respect With offense; guilt charged by turning during guilt phase closing comment made prosecutor into an unsworn witness not argument that than a anything finding less cross-examination; subject and di- an degree of first murder would be insult minishing jurors’ responsibili- sense of Wayne Hoewing, to Brandie Kearnes and ty- plainly by failing the trial court did not err to declare mistrial when the comment During guilt phase closing the state’s Taking closing argu the entire was made. said, argument, prosecutor “frankly, consideration, ment into it is clear gentlemen, anything than ladies less proper during comment was made dis degree murder in the first to those to [sic] appellant’s actions con cussion of whether people [Appellant] planned is an insult. Also, degree. murder in the stituted first trying up their murder and he is to cook brief, the comment “was isolated and psychiatric mumbo-jumbo some kind of emphasized by prosecutor.” him get just out of it like he’s done be- Rousan, 961 at 851. The com During closing argu- fore.” the state’s ment, furthermore, did not intimate to the penalty phase, prosecutor ment explain that would have to its ac appellant’s “pattern referred behav- family tions to friends or after the trial. “history ior” and of violence towards Thomas, Compare State penalty phase women.” Also (Mo.App.1989). 133-35 stated, closing argument, prosecutor Appellant’s complaint concerning the “[appellant’s] death will be a thousand prosecutor’s appel- statements about what times more merciful than Brandie’s. His “before,” “pattern death will be a thousand times more mer- lant did behavior,” Wayne’s. gave appellant’s “history ciful than He them no of vio- *20 1167, 1189, 145 L.Ed.2d mer- 120 S.Ct. towards is also without lence women” (2000). provoke rejected ap- “may not addressed and Defense counsel it. This Court prosecutor’s that Id. contention then assert error.” pellant’s reply a and ap- that possibility raised the arguments prosecutor’s was the Neither propensity to pellant was convicted of his impermissible an comment statement than of the crime violently, act rather in the right appeal. Only to appellant’s charged, previous point. in the the statement that oblique most sense was Appellant’s point argument last on this Wayne Hoewing re Brandie Kearnes prosecutor’s argument centers on the that appellant’s appeal ceived no a reference to “[appellant’s] death will be a thousand appeal. assuming, Even right own to merciful than Brandie’s. His times more however, per jury might that have death will be a thousand times more merci- such, prejudi ceived it as the statement Wayne’s. gave judge, ful than He them no to its jury if it misleads the as only cial no gave lawyer, gave he them no he them sentencing process. State role trial, appeal.” objected At defense counsel (Mo. Richardson, 923 S.W.2d prosecution’s to the statements. The court likelihood, if any, banc Here objec- indicated that it would sustain the momentary that was jury was misled jury disregard tion and instruct the jury properly de and minimis. statement, but defense counsel told the instructed, furthermore, responsi as to its judge high- did not want to penal death regarding bilities whether the light declaring statement and that ty 313.49. appropriate. MAI-CR3d “only mistrial was the relief.” The trial Appellant demonstrate that the does not court overruled the motion for a mistrial. prosecutor’s anything ap comments had prosecutor’s now claims that the jury’s effect on the proaching decisive testimony statements constituted unsworn is, therefore, point de reasoning. This subject to cross-examination and di- nied. jurors’ responsibility minished the sense of by impermissibly commenting upon appel- right appeal.
lant’s IX. Appellant argues regard-
The trial court did not abuse
that evidence
its discretion
it
ing prior, unadjudicated
when
denied defense coun
acts of violence
sel’s motion for a mistrial.
during
The comment
should not have been admitted
trial because the state
testimony”
pros
penalty phase
was not “unsworn
from a
of his
that it
penalty
provide
ecutor to the effect that the death
did not
notice
intended
“quick
easy
non-statutory
leads to a
death.”
aggrava-
Com
submit the acts as
pare
Storey,
ting
circumstances. Defense counsel re-
(Mo.
Delo,
1995);
statutory
quested
banc
Antwine v.
54 F.3d
disclosure of
(8th
Cir.1995). Rather,
non-statutory aggravating
circumstances
prosecutor’s
to re
the state intended to submit to the
statement
offered
state,
jury.
although
complied
but
effect
arguments
mercy.
request
statutory aggrava-
deserved
As de
to disclose
circumstances,
trial
apparently
ting
argued
fense counsel
understood when
required
that it was not
to disclose
closing
he said to the
his own
court
factors,
non-statutory aggravating
ar
and the
argument
may try
“[the state]
gue
[appellant]
agreed.
appeal, appellant
court
com-
was not merciful so
On
be,”
testimony
you
prosecutor
plains specifically
has con
of Mu-
shouldn’t
Smith, the
leeway
arguments
Mary
siderable
to make
in rrain Daniels and
state’s
closing argu
during
rebuttal
the state’s
first
two witnesses
Middleton,
regarding
ment.
testified
vi-
stage.
Both women
denied,
1999),
they
appellant.
had with
cert.
olent encounters
528 U.S.
*21
Assuming that the trial court’s de
object
to this tes-
Defense counsel did
timony.
testimony
cision to admit the
of Muriam
error,
Mary
Daniels and
Smith was
“Generally, both the state and
question
whether the lack of no
remains
wide latitude
in
given
the defense are
testimony
tice and the admission of the
regarding
troduce
evidence
the defen
plain
constituting
injus
error
manifest
jury in
dant’s character that assists the
tice because the claim of error was not
appropriate punishment.”
determining
preserved.
Worthington,
State
in
cumstances jury submit to the for its consideration.” Taking totality into account the of (Mo. Debler, circumstances, it cannot be said that 1993). Debler, banc In ex this Court prejudice suffered the of which plained unadjudicated of how admission episodes The Debler warned. violent prejudice a crimi bad acts evidence could testified, Daniels and about which Smith defendant, stating nal unadjudicated, although technically were judge previous- has no [b]ecause consideration; judicial subject once the guilt for ly determined a defendant’s obtained restrain both Daniels and Smith uncharged activity, criminal such evi- in' an effort to ing against appellant orders significantly dence is less reliable than toward them. aggressive curb his behavior prior related to convictions. therefore, is, testimony more reliable however, juror, average To the uncon- than the evidence introduced in Debler. in- activity practically victed criminal is addition, noted, In specifically as the state distinguishable activity from criminal re- potential as endorsed both women wit convictions, sulting and a different nesses, and Daniels was endorsed as a species from other character evidence. relationships witness. The stage” “second Id. appellant and Daniels and Smith between First, noting ap it is worth appellant’s behavior toward and violent information, pellant received some albeit re several both women were detailed informally, about the nature of the non- coun ports that were disclosed to defense statutory aggravating circumstances that timely light in a fashion. In of these sel the state intended to submit. The state facts, it cannot be said that the trial court’s specifically endorsed Daniels and as Smith testimony decision to admit the of Daniels potential in particular witnesses. Daniels penalty phase and Smith stage” was endorsed as a “second witness. injustice. trial in manifest resulted relationships between violent Daniels and Smith that the Appellant also contends behavior toward both women were detailed trial court should not have admitted the reports several were disclosed because testimony Smith Daniels timely defense counsel in a fashion. This they were too remote the acts described properly suggest that the state no argument This has time to be relevant. non-statutory ag notified weight goes Remoteness merit. The state has a gravating circumstances. evidence, admissibility. State v. not to aggrava duty specifically to disclose such Shaw, 768, 778 when the ting circumstances to defense Id. defense asks for disclosure. when it sen- appellant’s ease stances of
X.
this,
light
appellant to death.
tenced
testi
upon
focuses
*22
accept
refuses to
this Court
family
mony of two of Brandie Kearnes’s
the trial court
because
argument
that
appellant’s sentencing hear
members at
objection
counsel’s
overruled defense
sister,
Kearnes,
ing. Bridie
Brandie’s
of
testimony
necessarily also took the
that
to die”
stated
“deserves
im-
when
Kurz into account
Kearnes and
if
“is
that she could not survive
posing sentence.
opined
Kurz then
that
given life.” Yvonne
ap
“too
for
penalty
good”
the death
XI.
argues that when
pellant. Appellant
that
the trial court
Appellant asserts
court overruled defense counsel’s ob
trial
31
submitting Instruction Nos.
erred in
jection
testimony, the court “made
to this
jury’s finding
accepting
in
improper and
and 36 and
clear that it would consider
while he
appellant committed murder
deciding
evidence in
whether
inflammatory
a bur-
perpetration
in the
of
[appellant]
engaged
to sentence
to die.”
im-
the instructions were
glary because
by
Appellant’s position is foreclosed
of
in that the definition
properly drafted
(Mo. banc
Taylor,
and circumstances
rele
Although submission
the evi-
outweigh
ishment sufficient to
and 36
Nos. 31
portions of Instruction
vant
punishment
as
aggravation
dence
error,
prejudiced
appellant was
to both Counts I and II.
Bucklew,
the submission.
denied,
1998), cert.
trial S.W.2d 83
It
from the record that the
is evident
142 L.Ed.2d
S.Ct.
the facts and circum-
U.S.
only
court considered
(1999),
jury
is instructive. There this
found the existence of at least one
jury
circumstance,
Court held that
finds a con-
statutory
“[i]f
other
aggravating
temporaneous, multiple-crime event,
all
required
jury
which is
that is
for the
imposition
minimum threshold for
imposition
penal-
recommend
of the death
Middleton,
death
is crossed.” Id. at 95.
ty.
present
jury
ap-
found that
Netherland,
Citing Tuggle v.
516 U.S.
pellant unlawfully
Hoewing
entered the
(1995),
116 S.Ct.
fendant was
of at-
convicted
may
quence,
jury’s
decision
ultimate
tempted burglary in
degree.
the first
14,
Id. at
have been affected.
116 S.Ct.
case,
report
From the
it is evident
present
appellant
In the
there was no other evidence before
precluded
introducing any
miti
from
jury
respect
any
other intended
gating
upon
evidence. Based
a similar
“crime therein.” As a consequence, the
distinction, appellant’s
upon
reliance
Ant
entirely distinguishable
case is
from the
(8th Cir.1995),
Delo,
wine v.
557
plain error. Victim
There is no
Because
evaluate this evidence.
capital
admissible
impact evidence is
this
object to the admission of
failed to
unduly
“is so
unless the evidence
cases
court, review is
before the trial
evidence
funda
the trial
that it renders
prejudicial
at 511.
plain
Winfield, 5 S.W.3d
error.
”
Middleton,
mentally unfair....
show that the trial court’s
Appellant must
(Mo. banc),
443,
cert. de
substantially
rights
affected his
error so
598,
1054,
nied,
120 S.Ct.
528 U.S.
injustice
result
if the
that manifest
will
(1999)
Ten
(quoting Payne v.
L.Ed.2d 497
Winfield,
error
is left uncorrected.
nessee,
808, 824, 111 S.Ct.
501 U.S.
at 516.
S.W.3d
(1991)). In
v. Ba
who has one or more serious assaultive denied, 1998), cert. U.S. in Nothing criminal convictions.” this sec L.Ed.2d 91 S.Ct. prohibits tion the introduction of defen (1999), rejected argument this the Court purposes prior dant’s convictions for other Ervin, this by appellant here. made Furthermore, penalty phase. the trial did not err held that the court Court jury properly instructed to consid the jury to the gave instructions it because the in aggravation mitiga er all evidence and 565.032.1(2), consistent with section were in 32- punishment tion of Instruction Nos. jury that a in the which states RSMo 565.032.1(2). There is 33 and 37-38. Sec. not capital of a case “shall penalty phase no error. upon any specific evidence be instructed may mitigation in or aggravation which be XIII. instructed that but shall be punishment, any evidence juror shall consider contends that the trial each or aggravating to be in the victims’ which he considers plainly allowing court erred Likewise, Kearnes, Kearnes, Id. at 159. relatives, mitigating.” Monty Sandy re jury instructions the present Hoewing, Hoewing, Mark and Yvonne 37-38, ceived, consis and are Nos. 32-33 testify about the lives of Brandie Kearnes 565.032.1(2). is no There instructing without tent with section Wayne Hoewing and otherwise, error, admitting in this plain or how to evaluate the evidence. jury on penalty in which the death has been im- evidence without instruction. To ex- tent, furthermore, posed, and did receive ade- appellant argues procedure to quate notice of the be fol- point testimony this of Muriam opportunity meaningful lowed or a to be unad- Mary concerning Daniels and Smith heard. judicated bad acts should have been circumstances, any admitted under his duty independent- It of this Court already contentions have been considered ly to review sentences deter- rejected opinion.
and elsewhere this (1) imposed under they mine whether were or passion, prejudice,
the influence of XIV. (2) factor; whether arbitrary other jury’s finding of supports Appellant argues that “de and circumstance statutory aggravating pravity “multiple of mind” murder” (3) found; and any other circumstance aggravating circumstances submitted to whether the sentences are excessive jury unconstitutionally vague are since disproportionate penalty imposed they distinguish do not his case from those crime, cases, considering similar imposed. where the death is not evidence, the defen- strength of respect “depravity” particular, With dant. Sec. 565.035.3. appellant suggests aggravating circumstance limit or does not channel the concerning passion, Appellant’s claims jurors discretion of the because could arbitrary factors prejudice, “many” reasonably find that all murders are “out his arguments from premised upon are they all rageously wanton or vile” and this appeal, which Court points various *25 physical pain appel- involve or emotional suffer Similarly, rejected. already has tak ing. Appellant’s argument invalidity is not well concerning the arguments lant’s “depravity.” al- en. The instruction defined have circumstances aggravating of the finds, Furthermore, repeatedly Court has rejected. this This Court ready been rejected regard therefore, were such attacks both sentences that mind depravity prejudice, of circum aggravating passion, the not the result of stance, Knese, 759, arbitrary State v. 985 S.W.2d 778 factors. (Mo. Barnett, 1999); banc v. 980 State of this Court’s the course During (Mo. 1998); 297, 309 banc v. S.W.2d State appellant’s arguments, consideration of (Mo. 121, 145 1998); Clay, 975 S.W.2d banc furthermore, that the has found this Court multiple murder cir aggravating and the findings of the jury’s the supports cumstance, Barnett, 309; 980 S.W.2d The record circumstances. aggravating Carter, 548, 955 S.W.2d 558-59
State the Hoew- into appellant that broke shows (Mo. 1997); Powell, banc State v. Brandie and attacked ing residence (Mo. 709, 715 banc This S.W.2d eight Kearnes, cutting her stabbing or rejects again these attacks. Court Hoewing Wayne then attacked times. He after him Wayne to shoot and taunted
XV. Ap or cut wounds. eleven stab inflicting Appellant claims that his death sen- to die. victims pellant then left both under disproportionate findings tences are section jury’s support These facts the 565.035, they RSMo because are was of Brandie Kearnes the murder arbitrary factors and upon based several in engaged was committed while upon aggravating circumstances. unlawful homi invalid the of another commission addition, appellant argues cide, section committed that Brandie’s murder was perpe in the applied by engaged this Court violates 565.035 as while was Wayne Hoew- process rights burglary, his due because the Court tration of appel murder committed while inadequate ing’s has an database on which in the commission engaged lant was rely, compares only the those cases Court homicide, XVI. Wayne’s unlawful another committed while murder was is affirmed. judgment perpetration of a bur- engaged involved glary, Wayne’s and that murder LIMBAUGH, PRICE, C.J., depravity of mind in that the murder BENTON, JJ., concur. HOLSTEIN vile, horrible, inhuman. wantonly opinion WOLFF, J., separate dissents independent An review filed. appel
facts of this case also reveals WHITE, J., opinion concurs disproportionate. lant’s are not sentences WOLFF, J. up frequently Death sentences have been multi held where the defendant murdered WOLFF, dissenting. Judge, perpe ple victims or murdered way, principal In a fundamental See, Middleton, burglary. e.g., of a tration legal opinion damages integrity Barnett, 581; 998 S.W.2d at dispute no that the profession. There is (Mo. 1998); banc State v. represented prosecutor in this case had (Mo. Johnson, banc criminal cases as his previous Smith in two 1998); Lyons, Moreover, prosecu- attorney. defense 1997). Taking into account the defender —used one tor—Smith’s erstwhile crime, evidence, and strength persuading those convictions in defendant, also the the Court finds that death on his former impose pro the death sentences in this case are client. portionate imposed sentences death simply other cases. If were a case where this conviction, a using prior prosecutor is Appellant’s concerning claims public equally record available matter of constitutionality of section 565.035 also join tempted I could be prosecutors, all Arguments concerning have no merit. principal opinion. reject adequacy of the database have been job prosecutor’s this But in this *26 Johnson, past. ed in the 968 the whether to seek was to determine (Mo. 123, S.W.2d 135 banc So have the first penalty. prosecutor death The is arguments relating to the fact that this decision-making point, on this line of compares Court cases in which the death decision, no death affirmative without his in penalty imposed to other cases penalty possible. The determination is penalty imposed, which the death penalty based to seek the death is whether said, the “[t]he about which Court has law, crime, the just on the facts of the determining proportionality issue when the circumstances of the defendant’s the any of a death sentence is not whether public It is that are matters of record. life in similar case can be found which the over-all char- judgment in a on essence sentence, rather, wheth imposed a life but defendant, happens who in this acter of the is excessive or dis er the death sentence prosecutor’s former case to have been cases’ as a proportionate light of ‘similar client. 121, Clay, v. 146 whole.” State 1998) (Mo. Mallett, position attorney put an is v. When (quoting State crime, a 527, banc), person a accused of defending cert. de of 732 542 S.W.2d 309, attorney- 933, an inviolable system 98 the offers nied 484 U.S. 108 S.Ct. 4-1.6(a); (1987)). Arkansas privilege. Rule involving no client L.Ed.2d 267 Claims Inc., Co., 605 F.2d Products opportunity to be v. Dean Foods meaningful tice and a (8th Cir.1979); 380, v. Cur People and re 384-85 heard have also been addressed 669, 87, N.E.2d 672-73 ry, Ill.App.3d 1 272 Clay, 975 at 146. Once buffed. client point is that the rejects (App.Ct.1971). The again, this these claims. Court 560 “when attorney substantially are related because
should feel free to disclose to
sought, knowledge
the facts and circumstances of the
only
penalty
the death
is
particular
activity
criminal
that he or she
background
dis-
about
defendant’s
with,
charged
has been
but all other facts
representation
in the earlier
be-
closed
person’s,
about that
life
and circumstances
‘closely
capital
with the
comes
interwoven’
have a
on the crime that
may
bearing
Wilkins,
1523,
F.Supp.
case
933
person
charged
may
is
with or
affect
Stenger,
v.
760 P.2d at
relying on State
imposed.
the sentence to be
v.
Wilkins
Co., Inc.,
360;
605
Dean Foods Products
(D.Mo.
Bowersox,
F.Supp.
in fact
prosecutor
F.2d at 384-85. The
1996); Curry,
such a dual principal opinion acknowledges, a
As the previous
defendant’s criminal and antiso conduct, along with defendant’s
cial prosecu
background, play come into
tor’s decision as to whether to seek the Stenger, 760 P.2d at penalty.
death BASEBALL ROYALS KANSAS CITY if cannot prosecutor says Even he CORPORATION, Appellant, secrets, is no remember such depend upon to defendants who comfort REVENUE, DIRECTOR OF attorneys present their interests zeal- Respondent. Wilkins, ously F.Supp. at loyally. 1524; Reaves, 107; Stenger, *27 574 So.2d No. 82554. SC 360; 272 N.E.2d at Curry, 760 P.2d at Missouri, Supreme Court attorneys for the shortage There is no Banc. En will-
prosecution ready, side this state ing, try prose- able to this case. The 5, 2000. Dec. duty disqualify himself un- cutor had are not der Rule 4-1.91 unless cases However, related.” the ear-
“substantially the current case representation
lier consultation; after former client consents 1. Rule states: 4-1.9 formerly represented a lawyer A who has (b) repre- relating to the use information in a matter shall not thereafter: client disadvantage of the former sentation to the (a) person represent another in the same or permit except would client as Rule 1.6 substantially in which that related matter information respect to a or when the materially client person’s are adverse to interests generally known. unless the has become of the former client interests