State v. Smith
781 S.W.2d 761
Mo.
1989
Check Treatment

*1 Missouri, Respondent, STATE of SMITH, Appellant.

Samuel D.

No. 70946. Missouri,

Supreme Court of

En Banc.

Dec. 1989.

Rehearing Denied Jan. *3 Gen., Webster, Christo- Atty. L. William Gen., Kehr, Jefferson Atty. Asst.

pher M. respondent. City, for RENDLEN, Judge. first convicted of stabbing

murder for fellow May inmate at the Missouri State Marlin January Because Penitentiary death, punishment at fixed his appeal the exclu- defendant’s falls within *4 appellate jurisdiction of this original sive Const, V, Court. art. We affirm. Mo. 3.§ began day of that events fateful upon by with a knife attack certain inmates inmate, another Demetrius Herndon. began incidents on Five and Walks of Six housing and after a unit concluded chase T-3, to corridor three stories below. De- yelled at in an fendant the attackers at- intervene, tempt Mays, one of but Marlin antagonists, turned defendant toward May and threatened him. Defendant and engaged then of their became a scuffle own, May wherein defendant nu- stabbed by in spite of merous times efforts intercede; prison guards finally two separated guard a sprayed when mace on appellant pulled and victim through by gateway corrections officers. The victim received nineteen stab wounds chest, arm, head, back, to the and died instantly piercing almost result injuries lungs. heart and I.

Defendant first contends there was insufficient sup evidence of deliberation port murder, degree his conviction of first reviewing and in this contention “the evi dence, together with all reasonable infer therefrom, ences to be drawn is viewed in light most favorable to the verdict and contrary and inferences to the ignored.” verdict are Clemmons, — denied, -, U.S. L.Ed.2d 369 light, Viewed in this abundantly the evidence vindicates the con A viction. defendant commits crime of Columbia, Johnston, Craig degree A. David D. first murder “if knowingly he Kite, appellant. City, for Jefferson person causes the another after trial upon matter,” 565.020, deliberation contends Defendant next § “ prof his 1986,1 refusing to submit court RSMo erred means ‘[deliberation’ manslaugh voluntary fered cool instruction length reflection for of time no ter, person who by a 565.002(3). a crime committed matter how brief.” The evi § person un death of another supportive dence of the verdict indicates “[c]auses that would constitute der circumstances victim received nineteen stab under subdivi second murder in the and defendant him wounds chased down 565.021,2 except that (1) flights sion of section through several of stairs and some caused the death under the corridors while correctional officers at influence adequate arising passion sudden tempted stop him before he administered 565.023.1, added).” (emphasis § Throughout process, cause the lethal blow. “ passion’ passion means intervene, RSMo. ‘Sudden prison guards attempted when arising provo out directly caused defendant threatened them and continued acting with cation the victim or another to stab the victim. From this the passion arises at the time the victim which reasonably could have inferred that defen solely the result offense is not upon had an opportunity dant to reflect his 565.002(7), and provocation,” of former length actions for time sufficient to “ *5 means cause statutory ‘[a]dequate cause’ may meet the criteria. The facts Clemmons, reasonably produce degree pas analogized a to v. would State 753 which, 906, bar, ordinary temperament person at case at sion in a S.W.2d like the impair degree substantially a an ordi involved first murder conviction sufficient to arising nary person’s capacity from a confrontation fel for self-control.” between 565.002(1). low inmates. There evidence that “[t]he steps defendant had to take a few toward

Henry grabbing before him Johnson voluntary manslaughter A instruc striking him in the chest with what was typically justified tion is victim when the eventually [gave] determined to knife be a defendant, perpetrates upon battery a the rise to the reasonable that inference defen 818, (Mo. Singer, v. 719 823 State S.W.2d dant reflected for at least the time it took App.1986), point but the on this reach him.” evidence striking Johnson before Id. no that Similarly, Mallett, inconclusive. There is evidence v. 732 State S.W.2d (the victim) 527, (Mo. 1987), May actually struck the first 533 banc 484 cert. 933, defendant, 309, L.Ed.2d 267 blow in his confrontation with 108 S.Ct. 98 (1987), though May presented this either that Court stated that the evidence was slip attacking evidence that the defendant had to out was Herndon and when defen assault, attacking yelled attempting stop the victim or dant handcuffs before that said, May that the first of the “You shot victim would have turned to defendant this, incapacitated temporarily give advancing him would want some too?” while Though the rise to reasonable inference toward this evidence defendant. firing might his a standing suggest marginal before last defendant deliberated alone finding passion the evidence indicates that of sudden aris shots. Here basis for cause, stabbing ing adequate one blow it becomes unten defendant delivered last pulled light chest he was able in the of all to the victim’s as when considered However, through doorway, assuming to an infer ar- giving rise circumstances. guendo ence that defendant had at least moment that sufficient exists guards support manslaughter reflection as the seized vic submission of where, instruction, held that defendant rendered final it has been tim before here, first is denied. instructions are submitted on both stab. Defendant’s degree statutory provides that specified, cita- 2. The cited section second all 1. Unless otherwise one, purpose "with the murder occurs when causing are to RSMo 1986. tions injury per- physical to another serious son, person." the death of another causes degree murder, first degree issue;” “they and second en example, if material jury finds the guilty jury defendant able the to better understand the testi of mur- 762, mony.” der in the degree, Murray, first State v. 744 S.W.2d unnecessary (Mo. 1988), denied,— banc decide U.S. whether there was sufficient evi- -, 181, 109 S.Ct. 102 L.Ed.2d 150 support dence to manslaughter instruc- This demonstrative evidence was relevant tion, for “no sug- reasonable basis exists to crime, show scene of the see State v. gest jury would have exercised Guinan, 325, 665 S.W.2d greater leniency and reduced the conviction cert. denied 469 U.S. manslaughter.” Merritt, (1984), helped 83 L.Ed.2d 156 (Mo.App.1987). jury testimony to understand the Alabama, cites Beck v. they pulled correctional officers as to how (1980), as au- through him victim the door and held thority for manslaughter submission of the lay dying. admissibility as he of such case, instruction but such reliance is evidence is within the broad discretion of misplaced. Beck, In the Court ruled that the trial court and is “erroneous if the precluded not be from consid- ruling resulted fundamental ering lesser included supported by offenses and abuse of discretion.” State Clem capital evidence in cases. ons, 1983). factually Beck is inapposite because the In photo this connection we note that jury here was instructed on the in- lesser graphs of the stab wounds on the victim cluded offense of second murder were admitted arguably which were more and thus precluded altogether was not gruesome photograph complained than the from considering a lesser included offense. of, photos and numerous of bloodied stair reasons, For the same against we also rule wells were also introduced into evidence. *6 point, plain error, defendant his raised as photographs plainly These relevant that the trial failing court erred in to insert admissible, id., jury and see and as the had in the second murder instruction the exhibits, already it viewed these cannot be paragraph stating that “defendant did not reasonably argued that defendant suffered do so under the passion influence of sudden prejudice” picture “fundamental a from of arising adequate from cause.” MAI-CR3d puddle a This blood. is denied. 313.04.3 Hunter, See State v. (Mo.App.1988). II. requests plain Defendant error review Defendant next asserts the trial remaining points, his previ- which were not court erred in admitting photograph a ously preserved appellate raised and for pool the of blood left where the victim review.4 expired, in that photograph the was not any relevant to material issue the case A.

and passion served to arouse and to jury. “Photographs gen the are error first claims erally they 18, pat- admissible if are relevant to a the submission of Instruction No. counsel, present 3. We also note defendant's own submitted in- obtained leave to exceed our paragraph, struction failed to include this the page by thirty one hundred limit additional complains. omission of which he now pages. responded by filing supple- Counsel pages, resulting mental brief of 126 in a total of appellant In this connection we note that has 4. pages hereby between the two briefs. We page exceeded the limitations in his brief. Rule future, portions warn all counsel that in 84.04(i) provides appellant’s that the brief shall exceeding express page briefs our limitations pages not exceed 100 unless leave of Court is longer will no be considered absent advance Appellant originally repre- first obtained. was Court, permission required by of this and as appeal sented nineteen-page trial counsel on this and filed rule, only may grant the Court leave to exceed Appellant granted brief. was express page limitations of the rule. supplemental prepared leave to file a brief appellant, through new counsel. Thereafter rized, trial judge jury waived 313.44, read temed after MAI-CR3d which consider, his or he include in shall follows: shall to consid- jury instructions you If decide that one or more suffi- er: aggravating exist to cient circumstances death, imposition warrant the as sub- 15, you must mitted Instruction No. mitigating cir- (2) Any statutory mit- then determine whether one or more enumerated in subsection cumstances out- igating circumstances exist which requested by the defendant are which

weigh aggravating circumstance evidence; by the supported so In de- circumstances found to exist. (3) Any mitigating ... circumstances ciding question, you may consider sup- by law and authorized otherwise relating all of the evidence to the murder by the evidence.... ported May. of Marlin may You also consider: glance the statute perfunctory at Even a the stat- would reveal that and instruction May 1. of Marlin Whether murder requires judge shall merely that the ute was committed while the Defendant was mitigating cir- in his instructions include the influence of mental or under extreme consider, cumstances for emotional disturbance. here; nothing did so in the instruction May partici- 2. Whether Marlin awas procedure employed afoul the here runs pant in the Defendant’s conduct. ar- further statute. defendant un- 3. Whether Defendant acted the in- gues emphasized language of extreme duress. der contrary pronounce- struction is May Marlin Whether murder of Supreme Court ments of the United States while ini- was committed the Defendant Carolina, 476 U.S. Skipper v. South acting in tially another. defense of (1986) 90 L.Ed.2d 106 S.Ct. the multiple 5. Whether stab wounds Oklahoma, Eddings August, the Defendant received 869, 876-77, 113-15, 71 L.Ed.2d to his contributed conduct. (1982), proposition stand for the which may You also circum- consider precluded the sentencer you find stances which from the evidence mitigating considering evidence. *7 punishment. mitigation in of cases differ The situations the cited or you unanimously that one If find Skipper, at In 476 widely from that bar. mitigating suf- more circumstances exist 1670, 3, miti- at relevant at 106 S.Ct. U.S. outweigh aggravating cir- ficient to the presen- was excluded from gating evidence exist, by you cumstances found to then hearing, and in sentencing the tation at you fixing the De- must return verdict sentencing re- the trial court in Eddings, punishment imprisonment fendant’s at emotional to consider defendant’s fused life the for Division of Corrections family upbringing and troubled disturbance pa- eligibility probation for or without 109, at mitigating evidence. 455 U.S. as role. As in Lockett v. 102 at 873. stated S.Ct. added.) (Emphasis 2954, 586, 604, Ohio, 98 438 U.S. S.Ct. (1978), 2964, above- sentencer Defendant takes issue with the L.Ed.2d 973 the 57 that language considering, 18 emphasized precluded Instruction from may “not be “may the evidence jury the consider” all of any aspect of a defen- mitigating factor, enu- circumstances the whether the or of character record dant’s mitigating circumstances existed. merated de- the that the offense circumstances complains He the is con- first instruction as a a sentence proffers basis for fendant 565.032.1, RSMo, states: trary to which given instruction than death.” The less the way contrary runs to United in no murder here In cases of in the first all the precedents, for Supreme Court the death is autho- States for which 768

jury “may aggravating ‘yes’ was that it instructed consider” circumstances marked all of the evidence and circumstances and at 1871-72. In Section I.” 108 S.Ct. con- “may sup consider” whether the trast, facts language the the instruction at bar ported the mitigating enumerated circum requires jury unanimity that the be stances. Lynaugh, See also Franklin v. finding mitigating that circumstances 164, 2320, 108 S.Ct. 101 L.Ed.2d outweigh circumstances; aggravating the (1988). Compare 155 Dug Hitchcock v. require jury the instruction does 393, ger, 1821, 481 107 U.S. S.Ct. finding mitigating be unanimous in each — (1987); L.Ed.2d Penry v. Lynaugh, circumstance, require jury nor does it U.S.-, 106 L.Ed.2d 256 agreement mitigating to be in on which jury precluded was not from outweighed aggravating circumstances evidence, considering mitigating and defen might circumstances before fix the sen- error, dant has thus failed establish Mills, tence at life. In further contrast to error, much less as to this contention. jury given Instruction No. vein, In a similar defendant further at- which read: being tacks No. contrary Instruction 18 as You to fix compelled are not death as the Mills v. Maryland, punishment you if do even not find the (1988), in stat- or mitigating existence of one more cir- ing you that unanimously “[i]f find outweigh cumstances sufficient to one or mitigating more circumstances exist aggravating circumstance or circum- outweigh sufficient to the aggravating cir- you stances which find to exist. You by you cumstances (empha- found to exist must consider all circumstances supplied),” jury sis must fix the sen- deciding whether assess and declare eligibility proba- tence at life without punishment at death. Whether that parole. tion or Defendant contends the your is to be final decision rests with reasonably instruction understood you. jury require they unanimous- gave This instruction the discre- ly particular find the of a mitigat- existence despite any tion to of life ing assess sentence circumstance before it could be weighed against possible findings mitigating the lack aggravating circum- stances, they must unanimously light then circumstances. In of these circum- find agreed upon that these mitigating cir- stances, defendant has established no mani- outweighed cumstances aggravating miscarriage justice fest they if fix pun- circumstances the submission Instruction No. 18. imprisonment ishment at life rather than Petary, See State v. 543- death. the verdict forms at issue 1989); see also Roberts v. markedly in Mills were different from the State, 1989) here. verdict forms used There the forms (Blackmar, C.J., concurring).5 *8 “[bjased expressly upon stated that the unanimously evidence we that each find B. mitigating following the circumstances Appellant the submission of contests his ‘yes’ proven which is has been marked to prior degree murder second conviction as by preponderance exist a of the evidence circumstance, aggravating claiming an this (emphasis added),” “[bjased and that on the 565.032, contrary 565.030 and was to §§ unanimously evidence we find that it has RSMo, right and to his constitutional to a proven by preponderance been a 565.032.2(1) jury provides trial. Section mitigating evidence that the circumstances ‘yes’ outweigh prior degree II that a for first mur- marked in Section the conviction determining trolling impact the of that deci- We note that MAI-CR3d 313.44 has since been in amended, light citing In of our prior Mills. discus- sion on the instruction. sion above we this amendment is find not con- pri- his admitting evidence of alty phase der or “serious crime an a assaultive” convictions; once the circumstance, he maintains that Note or aggravating a “serious judge trial determined what was 4, 313.40, Use No. states that MAI-CR3d conviction,” evidence of criminal prior assaultive the court must determine whether prior was the of these offenses details conviction is a “serious assaultive criminal State In probative. prejudicial more than Further, 565.030.4(1) conviction.” re- § 236, 238-40 Schlup, 724 S.W.2d v. quires aggravating that circumstances to denied, 920, 1987), cert. “beyond be considered must be found (1987), this by reasonable doubt” the trier. Defen- details of that the Court held jury, dant’s contention is that the rather jury for the prior crimes was essential court, than make determina- the must the “substantial determine the existence degree tion whether his murder con- second convictions,” assaultive history of serious viction a “serious assaultive criminal 565.012.2(1), was an which RSMo § conviction;” attempts ag- the define prior the aggravating undpr circumstance gravating as an element of circumstance It that the the statute. is true version of discrete crime “capital the murder.” provide has amended to that statute been com assertions are Defendant’s criminal “one more serious assaultive or pletely all, “capi of merit. aggravating devoid First of an cir convictions” be cumstance, 565.032.2(1), tal murder” is not a distinct crime under RSMo § rather, scheme; above, statutory the the trial court makes Missouri discussed degree jury may first cases the determination whether a conviction murder the given meets criterion. defendant’s impose the discretion to the convictions, burglary con aggra prior or other if one more enumerated in connection with second vating summated circumstances exist. 565.030. § degree escape from custo here, murder and Secondly, procedure employed conviction, dy were also submitted before with accompany conformance the MAI and jury to the as additional circumstances for ing notes, way detracts no from the compliance consider with function of trier of fact. court 565.032.1(3), jury which states that must determine matter as a of law whether “[a]ny mitigating instructions shall include prior conviction is a “serious assaultive otherwise aggravating circumstances conviction,” jury criminal and then the supported law authorized allowed to determine as a matter fact evidence, any including aspect ... prior whether defendant indeed had a con character, record of defendant’s [and] degree viction of second murder. Defen any prior convictions (emphasis criminal dant has failed here consti establish added).” This has stated Court statutory tutional or violations as er given per full “be information must Further, ror or otherwise. we find it diffi defendant, including his taining pro dispute cult to a second murder activity, giving con pensity for criminal shooting eighty-six-year- conviction for an imposition of the death sideration attempting old while woman defendant was Gilmore, State sentence.” to break into her home was a “serious conviction,” criminal assaultive we *9 L.Ed.2d 476 104 S.Ct. 80 though note that even the trial court did (1984). prior The details these convic record, finding not make such that character, to plainly tions relevant his are plain itself not factor does constitute 565.032.1(3), propensity “his for and to § Clemmons, at 912. error. 753 S.W.2d Gilmore, activity.” 661 S.W.2d at criminal circumstances, we re aggravating if 524. As the that Defendant contends do, nonstatutory, argument, statutory were ject preceding which we both his evidence, by the defen- during pen- supported plainly clearly the trial court erred 770 denied, 1009, 1875, manifestly preju-

dant could not have been 471 U.S. 105 S.Ct. 85 evidence, (1985), error, diced any, this and this if is L.Ed.2d 168 against regard therefore ruled him. this cannot be said to rise to the plain

level of error.

C. D. protests next that in Defendant Defendant next raises an at penalty phase evidence was introduced that special defendant was in management constitutionality tack on the of the Mis unit penitentiary prosecutor of the they souri death statutes because argued that defendant was there prosecutor because allow the discretion to waive the he couldn’t penalty. 565.004.4, 565.006.3, “conform to the rules.” Defen See §§ complains dant that this oft-repeated evidence is an RSMo. note We first rule aggravating additional circumstance and that constitutional error must be raised at notify state did not him in opportunity, advance the earliest with citations to pursuant 565.005.1, RSMo, that it in alleged the constitutional sections have tended to introduce this evidence. This Flynn, violated. State v. been 519 S.W.2d party, upon provides statute request Moesch, 10, (Mo.1975); that a State v. 12 738 opposing of the party, 585, shall disclose a list (Mo.App.1987). aggravating of all mitigating or circum gratia ex reviewing the matter stances which Howard, party prove intends error, see State v. 86, 540 S.W.2d at trial. Defendant concedes he made no (Mo. 1976), banc we note that such a request, such gratia ex although the state previously rejected by contention has been provided him aggravating a list of circum Supreme this Court and the United States proven. stances intended to be Defendant Trimble, 726, Court. State v. 638 S.W.2d complain not be heard any fail (Mo. 1982), cert. denied 459 U.S. banc provide statutory ure to notice when he 838, (1983); 103 S.Ct. 74 L.Ed.2d 1031 request required failed to make the by the 153, 199, Gregg Georgia, 428 U.S. 224- Mallett, statute. 732 S.W.2d at 537. Fur 2909, 2937, 2948-50, 96 S.Ct. 49 L.Ed.2d thermore, there is no manifest (1976). further contends miscarriage justice as a result of the statutory provisions that such violate the special that defendant was in the separation powers prosecu because the management general unit rather than the injected judiciary province. tor is into the population prison. of the “The trial court controlling authority No is cited and we has during stage discretion of trial to find the claim meritless. helpful admit evidence it deems to the jury State v. Ma fixing punishment.” E. lone, 1985), 694 S.W.2d jury prosecutor informed cert. during although they voir dire that would Once the evidence agreement if they have to be unanimous was admitted that defendant was in the imposed penalty, only the death the fore special unit, management prosecutor sign man would form. He then was free to draw a reasonable inference inquired array they whether would from that evidence that defendant failed to sign punishment “conform be able to the form if a prosecution to the rules.” rendered; right argue several venire mem has the reasonable inferenc death were McDonald, evidence, responded although they es from the bers opposed capital punishment, they presented during punish- 6. Evidence was behavior in the institution or for the circum- phase ment placed of trial that individuals would be stances of their crimes. *10 special management in the unit for their

771 error, plain for see ever, reviewing further the sign would not want to be the ones to 729, 735 Nave, 694 S.W.2d v. alleges prosecutor’s form. the State Defendant 106 475 questioning sought manner of a commit- (1986), we find 901 L.Ed.2d 89 jurors ment to act in from the a certain miscarriage no manifest them, way, misled and the misstated law. of the continu justice resulting from denial This assertion is fallacious. “Counsel penalty phase, defendant During ance. the probe pre- ... the veniremen to determine condition in fully his mental testified as to prejudices preclude conceived that would circumstances mitigating support of the following them from the instruction in the submitted, effectively counsel and defense Neal, case.” 591 182 S.W.2d closing during argu argued these points (Mo.App.1979). Defendant’s reliance of a motion granting The or denial ment. Austin, (5th 663 F.2d Alderman v. matter within the for a continuance is a Cir.1982), misplaced, for there the death court, Nave, discretion the trial prosecutor sentence reversed when the was has failed to S.W.2d at and defendant struck cause three veniremen who indi- demonstrate here. error sign cated they could not a verdict of death jury. as Such foreman is not here, jurors

case ques- for none of the so G. tioned struck for cause. Defendant’s also charges plain Defendant error plain contention fails the test of error. prosecu in certain comments made during penalty phase argument

tor in the argu alleged the trial. errors Such F. only if justify ment under error relief complaint next raised de to have a decisive ef they are determined fendant is that the trial court erred Murphy, v. jury. fect on State denying continuance, his motion for a 1979). S.W.2d delay which he asserted that a was neces sary to requested facilitate a mental exami referring to prosecutor, defen appeal argues nation. he expert On an he didn’t remember testimony dant’s testify was needed to as his mental incident, said didn’t much about the support of the mitigating condition killing “just if ma know defendant was factors submitted to the that defen prosecutor what,” de chine or dant “was under the influence of extreme “killing particular incident as scribed distress,” mental or emotional “act that he complains this an spree.” was Defendant duress,” ed “[wjhether under extreme evidence, argument of not but the facts multiple stab wounds defendant argue the evidence prosecutor entitled August, received in 1986 contributed to his inferences therefrom. reasonable conduct.”7 It should first noted that Clemmons, at 908. Defendant requested had not ex defendant mental against pros allegation levels same amination, and his motion for a continuance murder weap that the suggestion ecutor’s accompanied by was an affidavit show found; he states there on was never ing materiality expected or not any testimony whether never showing the identity be obtained and this, is a From reason knife was found. expected testimony, content the witness’ weapon was not able inference that 545.720, required by This RSMo. found. alone denial of could warrant defendant’s pros Defendant further claims the Merrick, contention. See State argued future criminal (Mo.App.1984). n. 2 How- ecutor defendant’s penitentiary. dining presented in the hall of the evidence that he had August been the victim of a knife attack *11 case, conduct mercy, justice. when he stated that defendant had but And this previous imposition an “outdate” for justice his sentences is the hope “I scary.” penalty. and that’s a little directly comment did not refer to future argument plain This does not constitute defendant, part criminal conduct on the prosecutor justice in error. The asked for assuming did, arguendo that it case, specifically stated that he did Court has argu allowed latitude for such mercy, vengeance, not ask for or for but sentencing phase ment in the of trial. justice; merely expres- an statement is Antwine, simple concept, wholly sion of the consist- law, mercy ent with our is not neces- It can sarily justice every argument case. The not be said that the comment had a decisive way precluded jury in no consider- from effect on jury’s determination. See ing mercy, right pursu- as it has the to do (Mo. Long, State 768 S.W.2d 666-67 565.030.4, RSMo, by imposing ant to App.1989). capital punish- life sentence rather than Clemmons, ment. at 910. See accuses Defendant next finally Defendant contends the prosecutor personalized vouching. How closing prosecutor’s argument as a whole ever, prosecutor’s comment that one of inflammatory prejudicial. Having was things hardest he has to do ask the complaints, specific addressed defendant’s jury impose penalty the death was favor having argument as a reviewed able to defendant rather prejudicial. than whole, manifest such we find no prosecutor rhetorically also asked the jury’s that the determination would have jury when the death im would be decisively con been affected. Defendant’s posed this, if not in a case like and whether closing argument are tentions as to such a task juries. would be left to other denied. He also stated that he would have loved to have shown the knife to the if it had Again, found. argument been such cannot H. be said to have had a decisive effect on the by defen The final advanced

jury’s determination. dant error in the submission asserts No. 8 on defense of another of Instruction following maintains the instruction, patterned person. That after excerpt prosecutor’s argument from the re 306.08, jury as MAI-CR3d directed the fol jury’s mitigat stricted the consideration of lows: ing (mercy) by turning it into an aggravating factor: in this case is wheth- One issues er the use force the defendant they’re really trying you

What to ask in defense of against May Marlin mercy, about is folks. That’s a little bit state, person. another In this the use of justice. Nobody different from accuses force) (including deadly force the use of justice system being our criminal over- harm is protect person another harsh, ly nobody at least ever heard. I’ve lawful certain situations. exactly We’re not noted for the harsh- lawfully necessarily any- person A use force to ness. And there’s not can attack, person against an thing wrong per protect with that But another se. when unless, system mercy the circumstances as he starts to dish out rath- under be, rule, per- justice reasonably them to er than as a when it becomes believes (sic) affair, really mercy protect would be standard it's not son seeks more, protect any just justified using it’s And then such force to weakness. person A is not under at- really system justice it’s not of decent himself. who person not be vengeance, more ... I don’t ask for tack from a third would *12 the de- If, circumstances as justified against under the using in force that third be, If, reasonably them to person believed protect to himself. under fendant attack was under person reasonably circumstances as a be- Demetrius Herndon be, person May, them to he to if the defendant lieved seeks Marlin protect was not under attack from the Demetrius Herndon reasonably believed person, third then to danger he is not entitled of death or seri- was in imminent against person use force such to third Mar- physical injury from the acts of ous protect person. the other that reasonably believed lin-May and he necessary to deadly force was the use of person lawfully In order for a to use Herndon, defend Demetrius person, force in defense of another suich (sic) reasonably a defender must believe of an- he in lawful defense then acted in person trying protect that he is to not he must found person other be danger a third imminent of harm from guilty. person. person trying pro- to he is instruction, in this the term As used danger in tect need not be actual but physical physical injury” means “serious defender must have a reasonable belief risk of injury that creates a substantial danger. in person that the such disfigure- serious death or that causes person trying protect If the another impairment protracted ment or loss or belief,

person per- has such he is then any part body. the function of mitted to use that amount of force which that this instruc- Defendant maintains reasonably necessary he believes to be unduly prejudiced in that there tion he was protect person. the other Herndon was no evidence that Demetrius person acting But a in the defense of using justified was not force self person permitted another is not to use apparent defense and that such was force, deadly is, force which he defendant. He further contends that there knows will create a risk of substantial typographical was a error the instruction causing physical injury, death or serious improperly and that the instruction limited reasonably person unless he believes the person the circumstances in which a could trying protect he is inis imminent per- deadly use force in defense of another danger physical inju- of death or serious third son to the situation where the ry- person is under an actual attack from the then, person may And use dead- even aggressor. ly only if reasonably force he believes paragraph of the instruction second necessary the use of such force is 306.08, Part of MAI-CR3d tracks A[l] protect person. the other “only used if there is evi which is to be instruction, As used in this the term person being dence that the defended was “reasonable belief” means a belief based justified using force in self-defense.” is, grounds, grounds on reasonable paragraph ap agree We that use of this person which could lead a reasonable erroneous, pears to be the same situation to the same belief. justified that Herndon was us indicates depends upon the facts reason- This how However, in ing force in his own defense. depend upon ably appeared. It does not to rise to the order for instructional errors true whether the belief turned out to be error, level of the trial court must so or false. as to cause manifest misdirect the defense of another On the issue of Moland, injustice, State case, person you are instructed as in this (Mo. 1982),8and defendant has failed to follows: if showing here. Even make such

[*] [*] [*] [*] [*] [*] second paragraph was erroneously sub- authorities, counsel, Furthermore, previous our that this in- and under defendant concedes charge prej- apparently his own defendant should not be allowed struction was tendered mitted, seeks to against May person if “the the instruction was correct in sub- (emphasis protect not under attack mitting person may deadly that a use force added),” improperly limits (“force instruction which he knows will create a sub- in which he would the circumstances causing stantial risk of death or serious defending Section justified in Herndon. physical injury”) “only reasonably if he be- *13 563.031,RSMo, may use provides that one necessary to lieves the use of such force is person “from what force to defend another person.” questiona- protect the other It is the use or reasonably he believes to be justified whether defendant in us- ble was by force such imminent use of unlawful ing deadly Mays, at and the force all added).” The in- person (emphasis other defendant evidence is uncontradicted that specifically provided struction that “[t]he beyond any went far conceivable need person trying protect he is need be himself, protect Herndon or as he stabbed danger in defender must actual but the May a total of nineteen times and contin- person a reasonable belief that have stabbing May attempted to ued while ward Further, danger.” in there is no con- such blows, spite attempts by in off the tradiction in the evidence that Herndon was prison guards testimony intervene. The May, under attack from thus the instruc- May in is uncontradicted that was disarmed defen- tion conformed to the evidence and yet fight, of this defendant con- midst argument rejected. must dant’s him. tinued to stab further claims III. paragraph from the second on account of point finally we reach And typographical omission. The instruction sen independent our review of person lawfully read: “A can use force to 565.035.3, by mandated RSMo. tence as § attack, protect person against another an (cid:127) unless, under the circumstances as he rea of this Pursuant to the first subdivision be, sonably person them to he statute, believes must determine whether the we using protect justified seeks to would be under the imposed sentence of death was protect (emphasis passion, prejudice, himself oth- such force to influence of added).” portion arbitrary discussion to this emphasized should er factor. Our already countered numerous ar- justified.” has have read “would not be manifestly guments that defendant was context. The omission is obvious from the justice somehow prejudiced or that was instruction continues: by trial errors. miscarried the asserted from a person A is not under attack who fully multifaceted at- Having considered person justified third not be would having made our tacks on the sentence and person to using against force that third review, independent we do not find that the If, under circumstances protect himself. imposed pas- as a result of sentence was them to person reasonably as a believed sion, arbitrary any other prejudice, or be, person protect was seeks The evidence is clear and uncontra- factor. person, the third not under attack from May killed Marlin dicted that defendant use force then he is not entitled to repeatedly pro- in a stabbing him after person protect third against such Further, the second longed assault. under person. other mandatory analysis, our prong circum- (Emphasis supplied.) these Under 565.035.3(2), beyond defen- it is cavil that conclude defendant was stances we cannot previous for second had a conviction dant manifestly prejudiced the instruction. (a degree “serious assaultive crimi- murder conviction”) already an inmate and was nal instruc For his final attack on the Penitentiary the Missouri State when tion, complains providing at that defendant occurred, May thus these Marlin force murder of not entitled to use that he was 1979). Euell, thereby. S.W.2d udice or error statutory aggravating two circumstances S.W.2d 857 Further, L.Ed.2d properly jury. found prior Defendant’s conviction appellant evidence establishes also twelve-year for second prior burglary

had convictions for and es- sentence killing not deter him from cape custody. Reviewing record murder did further whole, we fail see what again, find the we sentence of death might have a life sentence well-justified deterrent value this instance to be and neither could “the instance. Therefore arbitrary capricious. nor measure short rightly conclude no finally “[wjhether must determine We in this appropriate the death of death is or dis sentence excessive Roberts, (quoting at 870 case.” penalty imposed to the proportionate *14 Guinan, 332). at As this Court 665 S.W.2d crime, cases, considering similar both stated, “not hesitat previously we have has strength the defen of evidence and penalties imposed on ed to affirm death 565.035.3(3), Defendant dant.” RSMo. killing in inmates to inmates of other twenty-six years old time of the at the prison signal that there is a ‘real cost for above, incident, a and as discussed had ” Id. in kill while confinement.’ ers who convictions, history prior of in substantial Bolder, 690). The (quoting 635 S.W.2d at degree have cluding second murder. We nor penalty death here is neither excessive myriad of affirmed the for a im disproportionate punishment to the killings by other incarcerated defendants. posed in similar cases. Smith, E.g., (Mo. State v. 756 S.W.2d 493 — denied, cert. 1988), U.S.-, judgment is affirmed. banc 109 v. 823, (1989); State 102 L.Ed.2d 812 O’Neal, 236; Schlup, 724 S.W.2d v. State ROBERTSON, HIGGINS (Mo. de 1986), 718 S.W.2d 498 cert. banc JJ., COVINGTON, R. CARL nied, 926, 1388, 480 U.S. 94 107 S.Ct. GAERTNER, Special concur. Judge, (1987); Zeitvogel, v. State L.Ed.2d 702 707 denied, (Mo. cert. 1986), banc S.W.2d 365 BLACKMAR, C.J., in concurs 243, 479 107 S.Ct. 168 U.S. 93 L.Ed.2d opinion filed. separate Bolder, v. (1986); State 673 635 S.W.2d BILLINGS, J., separate concurs denied, cert. opinion filed. 103 S.Ct. attempts to distinguish those J., HOLSTEIN, participating not planned cases in that executions were a member the Court because not by multiple actors, or executed or else the the case was when submitted. already serving life sen defendant was previous tence for a murder conviction. BLACKMAR, Justice, Chief earlier, as noted as defendant’s concurring. similarity upon the victim bears some sault v. State Clem instigated the attack I. mons, 753 S.W.2d which was executed out, opinion points there apparently principal

solely by the defendant and As Further, in the to submit planning. the death was no error failure prior without instruction, manslaughter be- upheld voluntary cases penalty has been in numerous miti- opportunity had the killings where had cause the prison the defendant it could gate it was instructed that no life sentence cases no when prior some v. at all. State previous guilty defendant of second murder find the conviction Amrine, 1987), murder, not of that and did avail itself 741 S.W.2d 665 agree thoroughly I with opportunity. Antwine, Merritt, v. (1988); State holding of State L.Ed.2d Roberts, man- 51; of a (Mo.App.1987). omission points of error which instruction, briefing extensive

slaughter required or whether man- not, in the same preserved, not prejudicial. was not have been helpful or effec- preserved points ner as The discussion as to a man- whether re- been Cases which there have tive. then, required, slaughter instruction is If are rare indeed. plain error versals and, opinion, necessary, my unwise. may meet the counsel thinks that a particularly I concerned about such ex- am standard, possible it should be error point is pressions as “the evidence on this The random say very so in a few words. “though inconclusive” and this evidence points may not be briefing unpreserved marginal standing might suggest alone advocacy. sound finding passion aris- basis for a of sudden cause, quite ing adequate it becomes on necessary I to comment also find light in the untenable when considered Judge Billings’ gratuitous attack law- determining In all the circumstances.” assist- yers points raise of ineffective who is entitled to an the defendant whether proceed- postconviction ance counsel instruction, should consider the court entitled to ings.1 A convicted defendant is defendant, to the the evidence favorable by charging that challenge his conviction give the defendant the benefit and should to such an trial counsel was ineffective drawn from the of inferences which rights extent that sixth amendment *15 marginal theories should evidence. Even is held that Rule 29.15 violated. We have be submitted. making this claim. the exclusive means for Wheat, though 775 S.W.2d 155 principal opinion speaks as The 1989). that the claim some to intro- The defendant is told the defendant had burden evidence, suggests thirty days duce that the trial after must be made within deciding in judge may weigh transcript A is appeal is filed. record request. indigent to submit the defendant’s whether for provided and counsel furnished bring only heresy, This is and can trouble. is advised that defendants. The defendant to resist the prosecutor was ill-advised timely if not forever the claim is barred instruction, manslaughter and the trial State, Day raised. v. given it. Because the

judge should have 1989). I discussion of the point is immaterial omit liti- appointed for Rule 29.15 Counsel detail, persuades me that evidence in but it client. An gants to their owe duties manslaugh- for a there was a tenuous basis pursu- attorney no rule of ethics violates uncon- finding. That this evidence was ter entitled to ing claim that the client is me, probably per- not vincing to would unpleasant may This include make. It is jury, makes no difference. suade the of tri- challenging performance duty of the evi- say us to whether or not not for counsel have al counsel. Motion convincing. dence complaints they do not neces- proceed with with, arguable an agree if there is

sarily II. them. basis for the intimation I cannot understand capital de represented Those who have principal opinion, and 4 of the footnote fendants, appeal trial or at the whether opinion, that there was a Judge Billings’ is extreme stage, that such defense realize in the defendant’s of the rules violation misstep may for a ly difficult. Penalties a brief in briefing. Leave of court for specter operate under the severe. Counsel obtained, pages first as excess of 100 Carrier, Murray as v. of such cases 30.06(i). specified Rule L.Ed.2d 397 106 S.Ct. U.S. — -, Adams,- (1986), Dugger v. argue permit counsel to The rules also (1989), in 103 L.Ed.2d mean that the “plain This does not error.” to file a present defendant failed case. The gratuitous there is no 1. The attack is because timely Rule 29.15. motion under counsel in the issue of ineffective assistance of disregarded not be procedure should cial executed because which defendants were should be error review process. Plain possibly counsel did not choose to include rule, of review. exception, points appellate in their initial meritorious decisions And, rules and the Courts when proceedings. Judges may appropriately fol not been have appellate review for per- of the comment on the effectiveness of er lowed, assignment afterthought such and, for that formance of defense counsel procedurally declared should be rors matter, lawyers prosecution, but — U.S.-, Reed, v. Harris barred. doing duty not be criticized for their should (1989); Michi 103 L.Ed.2d 308 S.Ct. they it. see 1032, 103 gan Long, 463 U.S. observations, I concur in the With these opinion. principal Here, assigned initial brief appellant’s error, only of which points two three BILLINGS, concurring. Judge, appellate re- preserved for properly supplemental brief contained view. principal opinion and I concur in the sub-points as points and some additional attention to con- only to further call write plain error review. assignment of error for attorneys some tinued rule violations supplemental brief Only one represent appeals defendants to this appears properly preserved. It had been Court, appeals post direct convic- both appellate brief the second obvious And, proceedings. long tion so as this transcript the trial for writer has seined they Court countenances such violations them for alleged trial errors advanced Judge will continue. As Rendlen has noted plain error review. principal opinion, page in the limitation public defender that filed the The same habitually and dis- briefs flaunted *16 in this case “supplemental so-called brief” equal regarded. importance Of is the use 150-page brief State v. Pe also filed plain assign- of and abuse so-called error 1989). The tary, S.W.2d counsel, by particularly pen- ments in death only points three that were contained brief alty cases. preserved appellate for review. properly case, point In this after is asserted addition, as points In 14 additional appellants objected that were not brief under the error serted as reviewable at trial and not carried as an forward rule. assignment of error in the motion for new specifically is limited Plain error review squarely trial—all in violation of the rules provides The rule as fol- by Rule 30.20. years case of this In recent law Court. lows: grown accus- public some defenders have that are not Allegations of error defaming attorneys and tomed to fellow properly not briefed or are briefed derelictions, contrary charging them with by the not be considered appeal shall governing attorneys. to the rules of ethics except respecting errors appellate court def- alleged derelictions can lead to Such or in- sufficiency the information of maligned at- by wrongfully amation suits dictment, verdict, judgment, or sentence. giving rise to torneys, possibly well as not, plain errors af- briefed or Whether by defendants. malpractice claims rights may be con- fecting substantial the court in the discretion of sidered suggest justi- the ends is no answer to It injus- finds that manifest when the court penalty is fy the means because the death miscarriage justice has resulted tice or strictly en- The rules should be involved. therefrom. permit and the Court should not forced penalty rules because the death different unless the Court line is that The bottom under miscarriage assessed. This Court is injustice has been or finds that manifest resulted, assignments not such cases has legislative justice mandate review motion preserved at trial and recognized judi- and sound raised and the rules of trial are deemed new waived and should be procedurally days barred. In future SHEIL, L. Harold alleged proba- those same trial errors will Appellant-Respondent, bly grounds asserted as for federal ha- v. corpus relief. This beas writer is aware corpus provided that federal habeas has COMPANY, & Y. T.G. STORES peaceful safe and harbor where the death Respondent-Appellant. penalty has assessed. been Witness this No. 71547. penalty Court’s affirmation of death cases since 1981 and one case hav- Missouri, Supreme Court of ing through made system it the federal En Banc. As sentence carried out. Hick- Justice Supreme man Court of Arkansas Dec. 1989. State, said in Fretwell v. 289 Ark. Rehearing Denied Jan. (1986): process, If the review which is directed courts,

and controlled con- federal require years

tinues to about ten and at separate eight

least seven reviews

approach finality, process then the

just inefficient, legal A failure.

system such as ours which fails to hon- directly,

estly, efficiently address le-

gal magnitude questions will lose important

the most foundation stone system respect people. —the Hickman’s record keeping

Justice Arkansas

case and other post proceedings

cases led to conviction

being Supreme abolished Court State,

Arkansas in Ark. Whitmore 771 S.W.2d 266 *17 steps

This Court has taken insure that processed are cases in an

expeditious orderly trial but fashion naught effort

courts. is for repeated extensions time are

where

granted record, filing for the tran- appeal.

script, Again, and briefs on being

rules are abused those who seek delay

delay for other reason than to no Court,

proceedings in this all while up “plain

conjuring additional errors”. suggests day may not be

This writer Ar- away

too far for this Court to follow post

kansas’ lead and abolish conviction

proceedings spirit in Missouri—the comi-

ty notwithstanding. and federalism