The day before Bobby Joe Mayes was scheduled to stand
trial for previous sodomy charges, his wife and step-daughter were found
murdered in their home in Houston, Missouri. Both were scheduled to
testify on Mayes' behalf at his sodomy trial. Mayes was charged with two
counts each of first-degree murder and armed criminal action. His wife,
Sondra, was found in the master bedroom. She had been stabbed and had
died from blood loss. Mayes' step-daughter, Amanda Perkins, was found
partially clothed on the floor next to her bed. She had been subdued by
a blow to the head, draped over the edge of her bed, strangled and
stabbed in the back approximately 21 times. She died of blood loss and a
lack of oxygen. After more than a week of trial, Mayes was convicted of
all counts. He was sentenced to death for each of the murder counts and
to life in prison for each of the armed criminal action counts. This is
a direct appeal of his convictions and sentences.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Court en banc holds:
(1) Although one juror's answer to a question during
voir dire appears to be inconsistent with the answer she gave on a jury
questionnaire, no manifest injustice occurred that would require a new
trial. The questions were slightly different, and it is possible that
both answers were true. Mayes' attorney had the questionnaire during
voir dire, and he could have cross-checked her oral answers against her
written answers and questioned her further, had he chosen to do so.
(2) The court did not abuse its discretion in
admitting testimony that Mayes had asked about buying a gun in the days
preceding the murders, where the prosecutor did not ask the witness why
Mayes said he wanted the gun. He argues this may have implied he wanted
a gun to kill his wife. The reason the prosecutor did not ask that
question, however, was because Mayes successfully had moved to preclude
such testimony. He cannot now complain of error in a ruling he requested.
(3) The court did not err in refusing to re-open voir
dire once it ruled, after voir dire but prior to opening statements,
that a prison informant could testify about the sexual nature of the
charges that were pending against Mayes at the time of the murders.
Mayes' attorney made a strategic choice during voir dire to refrain from
asking jurors about their reaction to allegations of sexual misconduct
and cannot, with the benefit of hindsight, go back and ask more
(4) The court did not err in permitting evidence that
Mayes' previous crimes were sexual in nature, while excluding evidence
that the two prior victims were Mayes' children from a prior
relationship. Here, evidence of the sexual nature of the charges
previously pending against Mayes properly was admitted to help establish
the motive for the murders, not to establish a propensity for Mayes to
commit sexual assaults.
(5) The court properly limited Mayes' cross-examination
of the prison informant regarding his motive to lie. The witness
admitted during cross-examination that he hoped for some benefit to come
to him for testifying against Mayes. The topics that were excluded from
the cross-examination were, at best, only marginally relevant to the
issue of credibility and would have added little to the substantial
attacks on credibility that Mayes' attorney already had made.
(6) The jury was instructed adequately about the
credibility of the prison informant, and counsel could argue credibility
issues to the jury during closing arguments. It was not necessary for
the court to go beyond normal Missouri practice by giving a special
instruction about the special lack of reliability of prison informants.
(7) Mayes was not prejudiced by the court's admission
of evidence that he sodomized his step-daughter Amanda, as its probative
value outweighed any prejudice. It legally was relevant to providing the
jury with a complete picture of the crime and it tended to show
deliberation, motive and animus on Mayes' part.
(8) The court did not err in admitting three graphic
photographs. The photographs showed the nature and extent of Amanda's
wounds, enabled jurors to better understand the testimony of the
pathologist who examined her, and helped support the state's argument
that the wounds made required purposeful decision-making by the killer.
(9) The prosecutor's comments, during the guilt-phase
closing arguments, that any verdict less than first-degree murder would
be "an insult" to Sondra and Amanda did not warrant a mistrial. Mayes
did not object to the comments at the time they were made, they were
made in the context of the prosecutor's appropriate summation of whether
Mayes' actions constituted first-degree murder, and they did not suggest
to jurors that they would have to explain their verdict to family or
(10) The court did not plainly err in admitting
evidence that Mayes and Sondra had argued on several occasions prior to
the murders and that his employer had "let him go." Mayes argues now
that this constituted character evidence, but he did not object on those
grounds at trial. The evidence is not character evidence, as it helped
prove Mayes' motive, not that he was a violent or lazy person, and that
he was under emotional pressures from financial and marital difficulties.
(11) The Sixth Amendment did not prevent police from
conducting, outside the presence of counsel, a medical examination of
the lacerations on Mayes' hands after his arrest at the crime scene.
Mayes had invoked a right to counsel for the pending statutory sodomy
charges, but he did not invoke his right to counsel for the murder
(12) The state concedes the court erred in refusing,
during the penalty phase of the trial, to instruct the jury that Mayes'
continued choice not to testify could not be used against him in
considering the appropriate punishment. Both this Court and the United
States Supreme Court prohibit the jury from being told that it can
consider a defendant's silence in deciding whether to impose the death
penalty. Further, if a defendant such as Mayes requests a "no-adverse-inference"
instruction, and it is supported by the evidence, then the court must
give such an instruction. To do otherwise denigrates a defendant's basic
and fundamental constitutional right against self-incrimination. The
prejudice against a defendant who invokes the privilege is not purely
speculative but rather is inescapably impressed on the jury's
consciousness. Accordingly, the death sentence for each of the first-degree
murder convictions is reversed, and the case remanded for a retrial of
the penalty phase.
(13) This Court cannot review Mayes' claim that the
prosecutor engaged in misconduct and misled the jury during the cross-examination
of Mayes' only mitigating witness. Mayes failed to raise the issue below,
the document on which he relies is not in the record, and the state does
not concede that the document is accurate. The court below cannot be
faulted for not excluding testimony for a reason not made known to it.
(14) As any error in the application of the standard
for juror qualification is not likely to be repeated on remand for a new
penalty phase trial, this Court need not determine whether the trial
court erroneously applied the standard to one of the venirepersons.
(15) The court did not abuse its discretion when it
admitted evidence of Mayes' prior convictions for first-degree sexual
abuse and second-degree robbery that did not fall within the terms of a
statutory aggravator under section 565.032, RSMo 1994. The determination
of whether these prior offenses were "serious assaultive" convictions
was a question of law for the court, not a question of fact for the jury.
(16) The "multiple homicide" statutory aggravator,
section 565.032.2(2), RSMo 1994, is not unconstitutionally vague.
Opinion Author: Laura Denvir Stith, Judge
Opinion Vote: AFFIRMED IN PART; REVERSED IN PART;
REMANDED. All concur.
Defendant Bobby Joe Mayes appeals his conviction by a
jury of two counts of first-degree murder and two counts of armed
criminal action in the double homicide of his wife, Sondra Mayes, and
Sondra's daughter, Amanda Perkins, for which he received two death
sentences and two sentences of life imprisonment, respectively.
Mr. Mayes alleges eighteen points of error. Because
this case involves the imposition of the death penalty, this Court has
exclusive appellate jurisdiction. Mo. Const., art. V, sec. 3.
For the reasons set out below, the Court affirms the judgment of guilt,
but remands for a new trial on the issue of punishment because the trial
court committed prejudicial error in refusing, over Defendant's
objection, to instruct the jury that it could not draw an adverse
inference as to punishment from Defendant's failure to testify.
I. Factual and Procedural Background
A. The Crimes
Considering the facts in the light most favorable to
the verdict, State v. Thompson, 985 S.W.2d 779, 782-83 (Mo.
banc 1999), the jury could have found that at the time of the murder
on August 10, 1998, Defendant was married to Sondra, and lived with her
and his 14-year-old stepdaughter, Amanda, in Houston, Missouri.
Defendant was scheduled to go to trial the next day, August 11, for
committing statutory sodomy on his two minor daughters from a previous
relationship. He wanted Sondra and Amanda to testify for him, and they
had been endorsed as defense witnesses.
Evidence was presented that the couple was having
financial and marital difficulties. Sondra had told Defendant that she
would not testify for him unless he signed a document that purported to
waive his right to contest Sondra's ability to unilaterally convey the
couple's marital real property. On August 6, 1998, just four days before
the murder, Defendant talked briefly with an acquaintance, Michael
James, about his financial difficulties and indicated that he did not
want to return home when his wife was there because they might get into
a conflict. Defendant also unsuccessfully sought Mr. James' help to buy
a gun, allegedly to rob another man.
The next day, August 7, 1998, Defendant signed the
waiver of marital rights that Sondra had requested in return for her
promise to testify. The State presented evidence that Sondra went to
work at 8 a.m. on August 10, 1998, as usual. Sondra told her co-worker
and friend, Cora Wade, that even though Defendant had signed the waiver
"she had not been able to work up the courage to tell him that she still
wasn't going to testify for him." Although Cora and Sondra planned to
talk more in the afternoon, Sondra went home during her lunch break, as
she did on most days, but never returned to work. A neighbor, Charles
Noakes, saw both Sondra and Bobby Mayes' cars in the driveway at 12:15
p.m. At 1:15 p.m., he heard Bobby's car, which had a distinctive sound
due to a defective muffler, start up and leave.
Cora called Sondra's house at about 1:15 p.m., when
she realized Sondra had not yet returned to work, but no one answered.
According to Mr. Noakes, about 45 minutes later Duane Sutton, Sondra's
father, came by the house and knocked on the door. Mr. Sutton testified
that he called through the window for Sondra, but no one answered.
Around 4:20 p.m., Mr. Noakes saw Defendant return
home. Shortly thereafter Defendant called 911. When asked what was wrong,
he said, "I don't know. I just come home and, I don't know. You just
need to send somebody over here," and that someone was "hurt" and was
not breathing. He refused to check for a pulse, stating, "I'm not going
in there," but agreed not to touch anything and to flag down the
Officer Campbell arrived to find Defendant pacing
back and forth in the driveway and rubbing his hands with a blue shop
cloth. When asked what was wrong, Defendant responded he did not know.
The officer looked around the house and discovered Sondra's body in the
master bedroom. When the next officer to arrive asked Defendant what was
going on, he threw up his arms and shouted, "I have an alibi, I have an
alibi. I've been fishing for the last three and a half hours." He was
perspiring and "fidgety" and continued to wipe and scrub his hands with
the blue shop cloth. When Chief of Police Kirkman arrived, Defendant
said he had last seen his wife at 7:00 a.m., that he had been fishing at
"Flat Rock" or "White Rock," and that he talked to her on the telephone
briefly when he returned home to make a sandwich before returning to
fish at either "Flat" or "Duke." Still massaging his hands, Defendant
did not ask about his wife or even mention Amanda. Chief Kirkman
observed ligature marks on the back of his hands.
After investigating Sondra's murder for some time,
police learned that Amanda should have been home but had not been seen.
Her partially clothed body was found on the floor next to her bed,
with a blue comforter draped across the front of her body and with a
very pronounced ligature mark on her neck. Chief Kirkman advised
Defendant of his Miranda rights and placed him under arrest. Police took
him to the Texas County jail, where he consented to a search of his
person and the seizure of his clothing. By early evening, Fred Martin,
Defendant's attorney in his pending trial, met with him briefly. Later,
a doctor found a laceration on Defendant's right hand and constriction
injuries on the backs of both hands consistent with the ligature mark on
B. The Trial
The State charged Defendant with two counts each of
first-degree murder and armed criminal action. During the guilt phase,
the State presented detailed evidence as to Defendant's conduct at the
scene of the murder, as to what the police had seen in the house, and as
to what that evidence showed about the manner of Sondra's and Amanda's
deaths. The evidence indicated that Amanda had been subdued by a blow to
the head and then draped over the edge of her bed and stabbed in the
back approximately 21 times. Not every stab wound was life-threatening,
but seven stab wounds penetrated her chest cavity, and at least one
severed pulmonary arteries and veins. Experts testified that in the 15
minutes following the stabbings, Amanda lost about half of her total
blood volume. She died of exsanguination and lack of oxygen due to the
aspiration of some of her gastric contents into her lungs.
Amanda was partially undressed, and her panties were
pulled down around her ankles. Medical witnesses testified that sperm,
consistent with Defendant's DNA, was found on the blood-stained bed
sheet. Some of the sperm appeared to be on top of the blood, thereby
indicating that the sperm was deposited after the stabbings. The
abnormal size of her rectum was consistent with either sodomy or with a
spasm caused by strangulation. Amanda was also strangled with some type
of cord, leaving a very pronounced ligature mark around her neck.
Sondra had been stabbed with a knife on her breasts
and her left ear. The knife was also thrust into her back, lodged
between her ribs and pulled laterally between the bones. It entered her
chest cavity and punctured her left lung and blood vessels. She also had
defensive-type lacerations on her hands and left forearm. Like her
daughter, Sondra died from exsanguination. Her body was found on her
bedroom floor. Blood was splattered about the room on the bed, the floor,
the table, and her body. A bloody t-shirt lying near her body contained
blood stains, which contained genetic material matching Sondra and a
genetic component that did not match Defendant, Sondra or Amanda.
Evidence at the scene indicated that the perpetrator
cleaned up in the bathroom after the attacks. Police found a bloody
fingerprint on the bathroom sink, later positively identified as
matching Defendant's left ring finger. They discovered a pair of men's
gray underwear with a bloodstain in a laundry basket and seized it and
other items of evidence.
The State presented the testimony of Michael James,
Charles Noakes and Cora Wade, described above. The State also presented,
among other witnesses, the testimony of David Cook, who had shared a
cell with Defendant for several days. Mr. Cook testified that Defendant
admitted to him that he had killed Sondra and Amanda, explained how he
had done so, and told him about the family's financial, marital and
legal problems. On cross-examination, Defendant impeached Mr. Cook by
showing that Mr. Cook had pending second-degree burglary and felony
escape charges that were reduced after he agreed to testify.
Defendant presented expert testimony that no hairs
foreign to the bodies of the two victims or Defendant were uncovered.
Defendant also called Fred Martin, who was to represent him in his
sexual assault trial. Mr. Martin testified that Sondra and Amanda were
scheduled to be witnesses for the defense in that case and that, as far
as he knew, as of the day of the murders they were still intending to
testify on his behalf.
After more than a week of trial, the case was
submitted. Because Defendant did not testify, at his request the court
instructed the jury in accordance with Missouri Approved Instruction-Criminal,
Third Edition, (MAI-CR3d) 308.14 that: "Under the law, the defendant has
the right not to testify. No presumption of guilt may be raised and no
inference of any kind may be drawn from the fact that the defendant did
not testify." The jury deliberated for less than two hours before
returning guilty verdicts on all four counts.
C. Penalty Phase
The penalty phase of the trial was held before the
same jury. The State submitted multiple statutory aggravators, including
Defendant's prior history of sexual abuse, his prior convictions,
depravity of mind, that each murder was part of a multiple homicide, and
that the victims were killed due to their status as witnesses in a
In support of the aggravators dealing with prior
sexual abuse and prior convictions, the State presented evidence that
Defendant had a history of sexual assault. In 1984, he attacked and
tried to rape a 14-year-old roommate of one of his acquaintances. He
also sexually assaulted and exposed himself to a 9-year-old girl while
visiting with her mother. In all, the State presented evidence of prior
convictions of first-degree sexual abuse, second-degree robbery, second-degree
burglary, first-degree sexual abuse, indecent or immoral practices with
another, and escape in the second degree.
Defendant presented mitigating evidence, including
the testimony of Dr. Nelda Ferguson, a psychologist. Dr. Ferguson
diagnosed Defendant as having behavioral and learning problems as well
as a severe personality disorder and impulse control disorders. Dr.
Ferguson offered her opinion, to a reasonable degree of psychological
certainty, that due to these disorders Defendant was influenced by
extreme mental or emotional disturbance at the time he killed his wife
and stepdaughter. Dr. Ferguson also testified that, despite their
severity, Defendant's disorders could be controlled with medication if
he was in a structured environment such as prison.
Defendant chose not to testify in the penalty phase.
Counsel therefore requested that the jury be instructed not to draw an
adverse inference as to punishment from his failure to testify. In
support, defense counsel specifically argued that since the instruction
given in the guilt phase had only told the jury that it could not use
his failure to testify against him in deciding his guilt, the jury might
infer that it could use his failure to testify in the penalty
phase against him unless instructed otherwise. The State objected that
the instruction would be duplicative, and the trial court refused to
give it. The State now concedes this was error. The jury recommended
death on each count of first-degree murder and life imprisonment on each
count of armed criminal action. The court sentenced Defendant in
accordance with the jury's recommendation. Defendant appeals.
II. GUILT PHASE
ALLEGATIONS OF ERROR
A. Juror Nondisclosure
Defendant claims that Alice Rouse, the jury
foreperson, engaged in intentional misconduct by failing to respond
affirmatively when the judge asked the venire panel "whether you or any
of your loved ones or close relatives have ever been the victim of a
crime." Defendant contends that this constituted intentional
nondisclosure by Ms. Rouse, because in filling out her jury
questionnaire she had checked the box marked "yes" next to the question,
"Have you or any relatives been a victim of a crime?"
Admitting that he failed to preserve this issue for
review because he did not raise the alleged discrepancy until the motion
for new trial, Defendant asks for plain error review under Rule 30.20.
Plain errors affecting substantial rights may be considered in the
discretion of the court if it appears on the face of the record that the
error alleged so substantially affected defendant's rights that a
miscarriage of justice or manifest injustice would occur if the error
were not corrected. Rule 30.20. "Whether manifest
injustice occurred depends on the facts and circumstances of the
particular case, and the Defendant bears the burden of establishing
manifest injustice amounting to plain error." State v. Campbell,
26 S.W.3d 249, 256 (Mo. App. W.D. 2000). Defendant argues that the
juror's conduct deprived him of the right to challenge Ms. Rouse for
cause or peremptorily and so caused him to be sentenced by "eleven
jurors and an intermeddler."
A prospective juror must have an "open mind, free
from bias and prejudice." State v. Wheat, 775 S.W.2d 155, 158
(Mo. banc 1989), cert. denied, 493 U.S. 1030, 110 S.Ct. 744, 107
L.Ed.2d 762 (1990). Prospective jurors have a duty to answer
all questions fully, fairly, and truthfully during voir dire.
State v. Jackson, 412 S.W.2d 428, 432 (Mo. 1967); State v. McKee,
856 S.W.2d 685, 690 (Mo. App. S.D. 1993). The failure to respond to
an applicable question can deprive counsel of information needed to
exercise a peremptory challenge or challenge for cause. State v.
Martin, 755 S.W.2d 337, 339 (Mo. App. E.D. 1988); State v.
Endres, 698 S.W.2d 591, 595 (Mo. App. E.D. 1985).
In determining whether to grant a new trial, the
court must determine whether a nondisclosure occurred at all, and, if
so, whether it was intentional or unintentional. If unintentional, a new
trial is not warranted unless prejudice resulted from the nondisclosure
that may have influenced the jury's verdict. Aliff v. Cody,
987 S.W.2d 439, 444 (Mo. App. W.D. 1999); State v. Landers, 969
S.W.2d 808, 811 (Mo. App. W.D. 1998). On the other hand, bias and
prejudice will normally be presumed if a juror intentionally withholds
material information, Portis v. Greenshaw 38 S.W.3d 436,
443-44 (Mo. App. W.D. 2001). Intentional nondisclosure occurs:
1) where there exists no reasonable inability to
comprehend the information solicited by the question asked of the
prospective juror, and 2) where it develops that the prospective
juror actually remembers the experience or that it was of such
significance that his purported forgetfulness is unreasonable.
Williams by Wilford v. Barnes Hosp., 736
S.W.2d 33, 36 (Mo. banc 1987). In addition, "[a] party who claims
misconduct affecting a juror is required to call such fact to the
court's attention as soon as he learns of it and has the opportunity to
do so." Salkil v. State, 760 S.W.2d 142, 145 (Mo. App. S.D.
1988). Whether the requirements for grant of a new trial are met in
a particular case based on juror nondisclosure rests in the sound
discretion of the trial court. Portis, 38 S.W.3d at 443.
Here, defense counsel had Ms. Rouse's questionnaire
responses during voir dire, yet he failed to bring to either her or the
court's attention the fact that she did not respond when asked whether
close family members or loved ones had been the victim of a crime,
although she had indicated in her questionnaire that a family member had
been such a victim. Defense counsel says they did not notice the alleged
discrepancy until the motion for new trial. Yet, the purpose of the
questionnaire is to assist in examining the potential jurors during voir
dire. It was a matter of trial strategy how counsel wished to use the
questionnaire. That counsel chose not to cross-check Ms. Rouse's
questionnaire with her oral responses until after trial should not
provide the basis for granting a new trial. It would be unfair to do so
where the discovery of the response in a timely manner was entirely
within the control of counsel. "The burden is on defendant to probe into
any area on voir dire which is considered to be grounds for
disqualification." State v. Walton, 796 S.W.2d 374, 379 (Mo.
banc 1990). This was the basis on which the trial court denied the
motion for new trial, stating:
Well, it's apparent that I know that the parties--the
attorneys were furnished with those questionnaires and the
information was on her questionnaire. If it wasn't part of trial
strategy, they could have--they had the opportunity, of course, to
question the witness if she forgot the point about being a victim if
she didn't come forward to the Bench. She had informed us that she
had been the victim of a crime. If you wanted to inquire further,
you may--you could have done so, counselor.
The court acted within its discretion in so ruling.
Moreover, even had the issue been timely raised, a defendant alleging
juror misconduct during voir dire must present "evidence through
testimony or affidavits of any juror, or other witness either at trial
or at the hearing on his motion for new trial." Portis, 38 S.W.3d
at 445. Furthermore:
defendant has the burden of proving his
allegations on a motion for a new trial. . . . In order to prove
intentional concealment by a juror, the defendant must, at a minimum,
allege intentional concealment in his motion for new trial and file
an affidavit from the juror setting forth the facts surrounding the
alleged concealment which reveals prejudice to the defendant.
State v. Potter, 711 S.W.2d 539, 541 (Mo.
App. E.D. 1986).
Here, Defendant failed to offer either an affidavit
or testimony of Ms. Rouse, or other evidence that she in fact did have a
relative who had been the victim of a crime, or any evidence as to why
she did not respond to the judge's inquiry. Defendant offered only the
jury questionnaire. But, the question asked on the questionnaire --
whether the jurors had any relative who was the victim of a crime -- was
broader than the one asked during voir dire -- were any loved ones or
close relatives the victim of a crime. So far as the record shows, Ms.
Rouse's answers to both questions may have been true, for a juror may
reasonably define "relative" differently than "loved one or close
relative." Cf. Banks v. Village Enterprises, Inc., 32 S.W.3d
780, 789 (Mo. App. W.D. 2000) (commonly understood meaning of phrase
"immediate family" does not include nephews, nieces or other collateral
relatives). Or, she may have simply checked the wrong box on her
questionnaire and not have a relative who was the victim of a crime.
Because of counsel's failure to call the juror or otherwise establish
the facts, this Court could only speculate as to whether any
nondisclosure occurred at all, much less intentional nondisclosure.
Compare Martin, 755 S.W.2d at 339-40 (juror disclosure found
intentional where party presented evidence that she failed to disclose
her son's father had been murdered); Endres, 698 S.W.2d at
595-96 (party proved intentional nondisclosure where party presented
evidence that juror failed to disclose her half-brother was murdered).
The trial court did not err in denying the motion for new trial on this
B. Admission of Evidence of Attempt to Purchase
Defendant alleges that the court erred in permitting
the State to call as a witness Michael James, an acquaintance of
Defendant who worked at a nearby surplus supply store. Mr. James was
prepared to testify that Defendant asked him whether he knew where
Defendant could purchase a gun, as Defendant wanted to rob someone.
Before Mr. James testified, Defendant filed a motion
in limine to exclude his testimony entirely, alleging that the
fact he asked Mr. James about buying a gun was irrelevant since the
victims were not killed with a gun. He further argued that it would be
unduly prejudicial to admit evidence that he said he wanted to use the
gun to rob another, for this would constitute evidence of another crime.
The State argued that Defendant's inquiry about a gun only four days
before the murders tended to prove deliberation and thus was relevant to
the crimes charged. The court ruled that the State could present
evidence that Defendant tried to buy a gun shortly before the murders,
but that the fact that he said that he wanted to use the gun in a
robbery was irrelevant.
In accordance with these rulings, Mr. James testified
that four days prior to the murders, Defendant entered the store, made "small
talk" about what he had been doing and about needing money, and
indicated that he did not want to get home while his wife was there
because it might "cause conflicts." Mr. James then testified that
Defendant asked him where he could get a gun, but that he replied that
he did not know where to get one, and the conversation ended.
Defendant again argues on appeal that his inquiry
about a gun was irrelevant, and should have been excluded entirely,
since the murders were not committed with a gun, so there was nothing to
connect them to his inquiry. Trial courts have broad discretion to admit
or exclude evidence at trial. State v. Johns, 34 S.W.3d 93,
103 (Mo. banc 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1745,
149 L.Ed.2d 668 (2001). Unless this discretion was clearly abused,
error will not be found. Id. The trial court did
not abuse its discretion in admitting testimony that Defendant inquired
about purchasing a gun. Other Missouri cases have permitted introduction
of evidence of a defendant's attempt to buy a weapon in order to show a
plan to commit a crime or to show proof of deliberation.(FN1) "Intent is
a state of mind, and it may be inferred from all the circumstances."
State v. Ray, 945 S.W.2d 462, 468 (Mo. App. W.D. 1997).(FN2)
Defendant admits that, standing in isolation, "perhaps
the gun would tend to prove deliberation," but argues that this could
not be the case where, as here, he admittedly said he wanted the gun to
rob someone, not to commit murder. He concludes that, by allowing Mr.
James to testify that he tried to buy a gun, but excluding the evidence
that he said he wanted to use it to rob another, the prosecutor engaged
in misconduct and contorted the truth by impermissibly tying his
question about getting a gun to the difficulties Defendant had with his
wife, thereby implying that he wanted a gun to kill her.
But, the reason the prosecutor did not and could not
ask about the reason Defendant said he wanted the gun was that defense
counsel had moved to preclude such testimony. The court simply granted
this motion. Defendant cannot now complain of error in a ruling he
requested.(FN3) Defense counsel made no attempt to bring out the
remainder of the conversation on cross-examination, nor did counsel ask
the court to change this ruling.
C. Informant Testimony
The State planned to call a prison informant named
David Cook as part of its case-in-chief. Mr. Cook shared a cell with
Defendant for a few days. Mr. Cook was to testify that Defendant had
confessed that he killed his wife after arguing with her over "some kind
of sex case." Defense counsel filed a motion in limine to exclude
evidence of the sexual nature of the pending case, arguing that it was
irrelevant to the murders and would unduly prejudice him. He further
argued that Mr. Cook's testimony should be entirely excluded on various
grounds. On three occasions before trial, defense counsel urged the
court to rule on this motion. Immediately prior to voir dire, the court
ruled that the State could elicit that Defendant told Mr. Cook that he
faced an impending trial, but kept under advisement the question whether
the State could mention the sexual nature of the charges.
After voir dire, but prior to opening statements, the
court ruled that the State could elicit that Defendant's earlier trial
involved sexual allegations or misconduct, but could not mention that
the victims were his daughters. Defense counsel requested permission to
re-open voir dire to ask whether the jurors could be fair and impartial
upon hearing such evidence, but the court refused the request. Mr. Cook
testified in accordance with this ruling. Defendant now asserts numerous
errors in regard to his testimony
1. Refusal to Re-Open Voir Dire.
First, Defendant argues that the judge erred in
refusing to re-open voir dire once he ruled that Mr. Cook could mention
the sexual nature of the pending charges. But, the court did not
preclude defense counsel from questioning the venirepersons during the
voir dire proper as to whether they could be open-minded upon hearing
evidence about the sexual nature of the charges.(FN4) Defense counsel
made a strategic choice to refrain from asking them about their reaction
to allegations of sexual misconduct out of fear that the jurors would
hold this information against his client and out of hope that the court
would not admit this evidence. This was not unreasonable trial strategy.
Counsel's real objection is with the timing of the court's ruling -- the
fact that it did not occur until after voir dire.
Defendant cites no authority for the proposition that
the court was required to rule on his motion prior to voir dire. Even if
the court had done so, its ruling would not have been binding, for a
ruling in limine is interlocutory in nature; it is "a 'preliminary
expression of the court's opinion as to the admissibility of evidence'
and is subject to change during the course of the trial."
Wilkerson v. Prelutsky, 943 S.W.2d 643, 646 (Mo. banc 1997),
quoting, Brown v. Hamid, 856 S.W.2d 51, 55 (Mo.
Of course, once the trial court ruled, counsel, using
hindsight, wished he had asked additional questions on voir dire. But,
that is true in any case in which a party has avoided a topic on voir
dire in the hope of a favorable ruling during trial. To find error in
failing to either rule before trial or re-open voir dire here, this
Court would have to hold that in every case in which a judge holds a
motion in limine under advisement or changes an in limine
ruling, the judge must give counsel an opportunity to re-open voir dire.
Unsurprisingly, counsel cites no authority for such a proposition, which
would entirely change the nature of both voir dire and in limine
practice. This invitation to make such a change in Missouri practice is
2. Evidence of Sexual Nature of Pending Charges.
Defendant argues that, apart from the timing of its
ruling, the court erred in failing to preclude Mr. Cook and other
witnesses from mentioning the sexual nature of the charges in the
pending trial in which Amanda and Sondra were set to have testified. He
argues the sexual nature of the charges was irrelevant to whether he
killed Sondra and Amanda and was introduced only to show his propensity
to commit a crime and to unduly prejudice him.
While Defendant is correct that evidence of prior
uncharged misconduct is inadmissible for the sole purpose of showing the
propensity of a defendant to commit such acts, State v. Smith,
32 S.W.3d 532, 550 (Mo. banc 2000), it is admissible to show motive,
intent, absence of mistake or accident, common scheme or plan, identity,
or signature modus operandi. State v. Roberts, 948 S.W.2d 577,
591 (Mo. banc 1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 711,
139 L.Ed.2d 652 (1998). The offered evidence must be both logically
relevant, "in that it has some legitimate tendency to establish directly
the accused's guilt of the charges for which he is on trial," and also
legally relevant, in that "its probative value outweighs its prejudicial
effect." State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993).
A trial court enjoys considerable discretion in the admission or
exclusion of evidence, and, absent clear abuse of discretion, its action
will not be grounds for reversal. State v. Hall, 982 S.W.2d
675, 680 (Mo. banc 1998), cert. denied, 526 U.S. 1151, 119 S.Ct.
2034, 143 L.Ed.2d 1043 (1999).
Here, the evidence of the sexual nature of the
charges was not admitted to establish Defendant's propensity to commit
sexual assaults, but to help establish the motive for his crimes. The
support of a wife and stepchild in a case alleging sexual misconduct
would be very important, and the lack of such support could be
devastating. The anger that their decision not to testify might have
engendered would explain the savage ferocity of his attacks, something
that the jurors might not fully appreciate if they did not know the
sexual nature of the pending case. Moreover, as discussed below, Mr.
Cook testified that Defendant specifically mentioned the sexual nature
of the pending charges when explaining why he killed his wife and
stepdaughter, and the jury was free to believe Mr. Cook's testimony. The
trial court carefully balanced the prejudicial nature of the proffered
evidence with its probative value and excluded evidence that the two
prior victims were Defendant's children. The admitted evidence was
relevant to motive.
3. Cross-Examination of Mr. Cook.
Mr. Cook testified that Defendant said he had an
argument with his wife about "some kind of sex case" in which she
refused to testify for him and then "he got really mad at her and he
started smacking her around and he started stabbing her." Mr. Cook
testified that Defendant said he "turned around and his stepdaughter or
daughter was there and he -- she was screaming and crying and he grabbed
her and started strangling her and stabbed her too." He further
testified that Defendant talked about a financial motive for the murder
and said he had tried to make it look like a burglary and to develop an
alibi that he was fishing.
Defendant claims the trial court abused its
discretion by unduly limiting his cross-examination of Mr. Cook
regarding Mr. Cook's motive to lie. In particular, he claims he was
precluded from showing that Mr. Cook was an inherently unreliable prison
"snitch." The trial court has broad discretion in determining the
permissible scope of cross-examination. State v. Oates, 12 S.W.3d
307, 313 (Mo. banc 2000). The court did not abuse that discretion
here. The court gave defense counsel broad latitude in cross-examining
Mr. Cook about his motive to lie.
Counsel brought out on cross-examination that when
placed in Defendant's cell, Mr. Cook had pending felony burglary and
escape charges, that Mr. Cook met with the police on the night of
Defendant's arrest to secure arrangements for protective custody in
another facility in exchange for repeating to police what Defendant told
him, and that the State reduced the charges against him one month after
he cooperated with them against Defendant. During cross-examination, Mr.
Cook admitted that he was "hoping for some help" and "hoping for
some benefit for this testimony." While the court did prohibit
further cross-examination about the length of Mr. Cook's crime spree,
about his girlfriend's pregnancy, and about the fact that a bar he
burglarized belonged to his uncle, these issues were at best marginally
relevant to his credibility and would have added little to the
substantial attacks on Mr. Cook's credibility already made by defense
counsel. The court did not err in limiting cross-examination.(FN5)
4. Special Credibility Instruction.
Defendant also argues that the court should have
given a special instruction, in addition to MAI-CR3d 302.01, informing
the jury about the special lack of reliability of prison "snitches." He
recognizes that this is inconsistent with normal Missouri practice,
which provides for instructing the jury with a single instruction
addressing the principles relevant to determining credibility, see,
e.g., State v. Silvey, 894 S.W.2d 662, 671 (Mo. banc 1995), and
which leaves the application of these principles to particular witnesses
to argument of counsel. He further recognizes that Missouri's
instruction is usually adequate. But, he notes, a few jurisdictions,
such as California, Oklahoma, and Montana, provide for special
credibility instructions about informant testimony. He argues Missouri
should follow their lead.
MAI-CR3d 302.01 properly advises the jury to consider
all the circumstances surrounding the testimony of a witness, including
any interest the witness may have in testifying. It also directs the
jury to consider "any other matter that has a tendency in reason to
prove or disprove the truthfulness of the testimony of the witness."
These principles are the ones that govern all determinations of
credibility in Missouri. Defense counsel brought out Mr. Cook's motive
for lying on cross-examination and, during closing argument, told the
jury that Mr. Cook "walked in this courtroom with a deal in his pocket
and a lie on his lips." While defense counsel may feel that the approach
taken by some other states is a better one, he has failed to show that
Missouri's approach is inadequate or that the jury was not adequately
instructed in this case. Moreover, he has failed to rebut the
presumption that the jury followed and understood the instruction as
given. State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999).
D. Sodomy of Victim.
Defendant contends the trial court erred by admitting
evidence that he sodomized Amanda, thereby weaving suppositional
evidence of "sexual innuendo" with Amanda throughout the trial. Evidence
is relevant if it "tends to prove or disprove a fact in issue or
corroborates other relevant evidence." State v. Rousan, 961
S.W.2d 831, 848 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118
S.Ct. 2387, 141 L.Ed.2d 753 (1998), quoting, Brown v.
Hamid, 856 S.W.2d 51, 56 (Mo. banc 1993). It is
elementary that relevant evidence should not be admitted if it causes "prejudice
wholly disproportionate to the value and usefulness of the offered
The evidence of sodomy supported the State's theory
of a sexual motive for the crimes. It included evidence of finding
Defendant's sperm on Amanda's bed sheet. Defendant concedes this
evidence is "certainly suspicious," but argues there is no way to
determine when the sperm got on the bed sheet. To the contrary, the
State presented evidence that one stain on the sheet contained a mixture
of genetic components consistent with both Amanda's and Defendant's DNA.
He also presented evidence that some of the sperm was found on top of
the blood on the sheet, indicating that it was deposited after Amanda
Dr. Douglas Anderson, a pathologist, offered his
expert medical opinion that the condition of Amanda's body indicated
acts of sodomy. Police discovered her lying face down on the floor,
partially undressed. The presence of a large amount of blood on the
mattress indicated that her body had been draped over the side of the
bed. Moreover, her rectum was abnormally enlarged. Two aspects of the
condition of her clothes also tended to indicate that she had been
undressed while she was killed. First, there was evidence that she had
been sloppily or hastily redressed. Second, she was stabbed 21 times,
but her shirt had 32 cuts. This evidence indicated that her shirt had
been pulled up and "bunched together" as the knife passed through the
The State presented this evidence to demonstrate that
Defendant did not act impulsively but rather committed a planned sexual
attack on Amanda and murdered her in order to keep her quiet. The trial
court could have reasonably concluded that the evidence of sodomy was,
taken as a whole, legally relevant because it provided the jury with a
complete picture of the crime, and tended to show deliberation, motive,
and animus on Defendant's part, and that it was not unduly prejudicial
in light of its probative value. The jury was free to believe or
disbelieve all, part, or none of the testimony of Dr. Anderson.
State v. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999).
Defendant contends the court erred in admitting three
graphic photographs. Generally, even gruesome photographs are admissible
if they: (1) show the nature and location of wounds, (2) enable jurors
to better understand the testimony at trial, and (3) aid in establishing
an element of the State's case. State v. Rhodes, 988 S.W.2d
521, 524 (Mo. banc 1999). The court has broad discretion in
deciding whether to admit or exclude photographs under this standard.
State v. Feltrop, 803 S.W.2d 1, 10 (Mo. banc 1991), cert. denied,
501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). Its decision
will not be overturned absent an abuse of discretion. State v.
McMillin, 783 S.W.2d 82, 101 (Mo. banc 1990), cert. denied,
498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). Here, Defendant
claims the pictures served only to infect the trial proceedings with "shock
value" and to "inflame the passions and prejudices of the jury."
Although the State agrees the photographs were graphic, it argues their
probative value outweighed their prejudicial effect.
The State used all three photographs in conjunction
with the testimony of Dr. Anderson. The first photograph showed Amanda's
enlarged rectum, which the expert indicated could have been caused by
strangulation or sexual assault. Both causes were consistent with the
State's theory of the case, namely, the manner in which Defendant
attacked Amanda, and corroborated other evidence of sexual assault. Dr.
Anderson testified that the second photograph showed the nature and
location of a wound to Amanda's head and an area of bleeding that was
consistent with blunt trauma to her head. This supported the State's
theory that Defendant subdued Amanda by a blow to her head. The third
photograph showed the effect of a stab wound that penetrated Amanda's
lung and lacerated her pulmonary arteries. It was relevant to show the
location and nature of Amanda's wounds and the cause of her death and
was also used to support the State's argument that the orientation and
depth of this stab wound was such that it required purposeful decision-making
by the killer.
Because the photographs showed the nature and extent
of Amanda's wounds and aided in establishing the State's case and in
helping the jury understand it, their admission was not error. "Insofar
as the photographs tend to be shocking or gruesome it is because the
crime is of that sort." State v. Clemons, 643 S.W.2d 803, 805
(Mo. banc 1983). See also State v. Middleton,
995 S.W.2d 443, 462 (Mo. banc 1999), cert. denied, 528 U.S. 1054,
120 S.Ct. 598, 145 L.Ed.2d 497 (1999). "To exclude graphic evidence
solely because it is graphic would deprive the State of evidence when it
needs it the most: the evidence would be inadmissible to prosecute what
are typically the most serious crimes." State v. Johnson, 930
S.W.2d 456, 462-63 (Mo. App. W.D. 1996). The court did not err in
admitting these photographs.(FN6)
F. Improper Closing Argument
Defendant argues the court abused its discretion in
failing to sua sponte declare a mistrial after the prosecutor
told the jurors at three points in his closing argument in the guilt
phase, without objection, that any verdict less than first-degree murder
would be "an insult" to Sondra and Amanda. The trial court enjoys broad
discretion in controlling the scope of closing argument, and its ruling
will be cause for reversal only upon a showing of abuse of discretion
resulting in prejudice. Johns, 34 S.W.3d at 116.
Courts especially hesitate to find plain error in the context of closing
argument because the decision to object is often a matter of trial
strategy, Middleton, 995 S.W.2d at 456, and "in the
absence of objection and request for relief, the trial court's options
are narrowed to uninvited interference with summation and a
corresponding increase of error by such intervention." State v.
Clemmons, 753 S.W.2d 901, 907-08 (Mo. banc 1988), cert. denied,
488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). To find an
abuse of discretion, the prosecutor's statements must have had a
decisive effect on the jury's determination. State v. Armentrout,
8 S.W.3d 99, 111-12 (Mo. banc 1999).
The defendant in Smith also complained
that the prosecutor said, "anything less than murder in the first degree
to those to [sic] people is an insult." 32 S.W.3d at 552. This
Court found no error, reasoning that the comment appeared during an
appropriate discussion of whether defendant's actions constituted first-degree
murder and was isolated, brief, and not emphasized. Id.
No less important was the fact that the comment "did not intimate to
the jury that it would have to explain its actions to friends or family
after the trial." Id. As in Smith, the
comment here did not warrant a mistrial. Although the prosecutor
repeated the comment, it appeared in the context of an appropriate
summation of whether Defendant's actions constituted first-degree murder.
Here, too, the comment did not suggest to the jurors that they would
have to explain their verdict to family and friends.
G. Character Evidence.
Defendant argues that the trial court abused its
discretion in admitting evidence that he argued with Sondra on several
occasions prior to the murders and that his employer had "let him go."
He now suggests that this constituted character evidence that tended to
put him in a bad light. At trial, however, defense counsel objected only
on the grounds of speculation and relevancy. A party may not raise a new
claim of error on appeal. State v. Driver, 912 S.W.2d 52, 54 (Mo.
banc 1995) ("To preserve an objection to evidence for review, the
objection must be specific, and the point raised on appeal must be based
upon the same theory."). Accordingly, only plain error review will be
accorded. Rule 30.20. Such review is to be used sparingly and
does not justify review of every trial error that has not been properly
preserved. State v. Ringo, 30 S.W.3d 811, 821 (Mo. banc 2000),
cert. denied, ___ U.S. ___, 121 S.Ct. 1381, 149 L.Ed.2d 307
Here, the Court does not agree that the evidence
constituted character evidence at all. The State used the evidence to
prove motive, not that Defendant was a "violent" and "lazy man." This
evidence was relevant to show that Defendant suffered from the pressure
of financial and marital difficulties. The fact that Sondra and
Defendant argued and that Defendant did not tell her about the loss of
his job tended to demonstrate that he faced intense emotional stress and,
so, was relevant to prove motive. Admission of the evidence did not
constitute plain error.
H. Invocation of Right to Counsel
Defendant argues that his Sixth Amendment rights were
violated because the police illegally conducted a medical examination of
the lacerations on his hands after his arrest outside the presence of
his attorney. His attorney at the time represented him in his pending
trial for statutory sodomy. He admits he had not invoked his right to
counsel as to the murders and that the Sixth Amendment right to counsel
is offense specific and "cannot be invoked once for all future
prosecutions...". McNeil v. Wisconsin, 501 U.S. 171, 175, 111
S.Ct. 2204 115 L.Ed.2d 158 (1991). Therefore, invoking the right to
counsel for one charge typically has no effect on a different charge for
which a person has not yet been arraigned. Hellum v. Warden,
28 F.3d 903, 909 (8th Cir. 1994), citing, McNeil, 501 U.S.
at 175. Nevertheless, he relies on a narrow exception to the "offense
specific" aspect of the Sixth Amendment to argue that the murder charges
were "inextricably intertwined" with the pending statutory sodomy
charges against him and the police should not have been permitted to
conduct a medical examination of him in the absence of his attorney.
See, e.g., U.S. v. Hines, 963 F.2d 255, 257
(9th Cir. 1992).
The Supreme Court has recently held that the standard
for determining whether crimes are so "inextricably intertwined" that
the Sixth Amendment right to counsel attaches to the new charges is
whether the offenses would be considered the same under the test for
determining double jeopardy outlined in Blockburger v. U.S.,
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Texas v. Cobb,
532 U.S. 162, ___, 121 S.Ct. 1335, 149 L.Ed.2d 321, 331-32 (2001).
Under that test, "where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not."
Blockburger, 284 U.S. at 304.
Defendant had invoked a right to counsel for the
pending statutory sodomy charges. He did not invoke his right to counsel
for the murder charges. The sodomy charge and the murder charge each
require proof of an element that the other does not.(FN7) The Sixth
Amendment, therefore, did not preclude police-initiated contact
concerning the new murder charges. See Cobb, 532 U.S. at ___,
149 L.Ed.2d at 331-32.
III. Penalty Phase
ALLEGATIONS OF ERROR
A. Failure to Give Adverse Inference
Defendant did not testify during the guilt phase of
the trial. Accordingly, at Defendant's request, when the issue of guilt
was submitted, the jury was instructed in accordance with MAI-Cr3d
308.14 that "No presumption of guilt may be raised and no inference of
any kind may be drawn from the fact that the defendant did not testify."
Defendant was found guilty of all counts, and the penalty phase trial
began. Defendant again chose not to testify and offered Instruction G.
It informed the jury that it could not draw an adverse inference as to
punishment from his failure to testify in the penalty phase. The State
objected to the wording of the Instruction and Defendant modified it so
that it was identical with the one given in the guilt phase except that
it substituted the words "as to punishment" for the words "of guilt:"
(emphasis added).(FN8) The State opposed both
instructions, arguing that the giving of the guilt phase instruction was
enough. Defendant persisted, however, arguing: "the instruction as it's
given in the guilt phase does not include whether they can consider Mr.
Mayes' continued right to silence in the punishment phase and that's the
reason for adding this -- requesting this be added." He further pointed
out that Note on Use 4 to MAI-CR3d 313.30A specifically permits
submission of a penalty phase instruction based on MAI-CR3d 308.14
directing the jury not to draw an adverse inference from defendant's
failure to testify.(FN9) The court refused both "no-adverse-inference"
The State now concedes this ruling was error under
settled law of both this Court and of the United States Supreme Court.
The privilege against self-incrimination under the Fifth Amendment of
the United States Constitution, made applicable to the states through
the Fourteenth Amendment, states that no person "shall be compelled in
any criminal case to be a witness against himself." U.S. Const.
amend. V. Missouri's constitution has a similar provision.
Mo. Const. art. I, sec. 19.
The privilege against self-incrimination assumes a
special place in our criminal justice system, not least because it is
the only constitutionally based privilege. See Maness v. Meyers,
419 U.S. 449, 461 n. 8, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975). Its
purpose was explained by the Supreme Court over 100 years ago:
It is not every one who can safely venture on the
witness stand though entirely innocent of the charge against him.
Excessive timidity, nervousness when facing others and attempting to
explain transactions of a suspicious character, and offences charged
against him, will often confuse and embarrass him to such a degree
as to increase rather than remove prejudices against him. It is not
every one, however honest, who would, therefore, willingly be placed
on the witness stand.
Wilson v. United States, 149 U.S. 60, 66,
13 S.Ct. 765, 37 L.Ed. 650 (1893).
Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14
L.Ed.2d 106 (1965), applied these principles in a case in which the
jury was told it was free to consider a defendant's silence in deciding
guilt. The Court found that such a comment violated the Fifth Amendment,
by "solemniz[ing] the silence of the accused into evidence against him,"
so that it unconstitutionally "cuts down on the privilege [against self-incrimination]
by making its assertion costly." Id. at 614.
Carter v. Kentucky, 450 U.S. 288, 305, 101
S.Ct. 1112, 67 L.Ed.2d 241 (1981), even more explicitly recognized
that the constitutional privilege gives a criminally accused person two
complementary fundamental rights: the right to remain silent and the
right not to have an adverse inference drawn from his or her exercise of
the privilege. To protect these rights, the Court held not only that no
comment could be made, but also that a no-adverse-inference instruction
must be given if requested. Id. at 300. It reasoned that,
while courts could not prevent jurors from speculating about why a "defendant
stands mute in the face of a criminal accusation," courts must use the "powerful
tool" of jury instructions to reduce such speculation, Id.
at 303, for:
[j]ust as adverse comment on a defendant's
silence 'cuts down on the privilege by making its assertion costly,'...
the failure to limit the jurors' speculation on the meaning of that
silence, when the defendant makes a timely request that a
prophylactic instruction be given, exacts an impermissible toll on
the full and free exercise of the privilege."
Id. at 305, 101 S.Ct. 1112.
Missouri adopted and applied these principles to the
failure to give a no-adverse-inference instruction in the penalty phase
of a capital murder trial in State v. Storey, 986 S.W.2d 462 (Mo.
banc 1999), cert. denied, 528 U.S. 895, 120 S.Ct. 226, 145 L.Ed.2d
189 (1999), a case handed down over one year before the trial of
this case. Mr. Storey had testified in the guilt phase but not in the
penalty phase of his trial and requested a modified "no-adverse-inference"
instruction for the penalty phase. Id. at 463. The trial
court refused the instruction. Id. On appeal, the
State conceded error in failing to give the requested instruction, but
it argued that the failure was harmless and any prejudice caused by it
was "purely speculative." Id. at 465. Applying the "harmless
error" analysis of Chapman v. California, 386 U.S. 18, 24, 87
S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), Storey found
the error was not harmless and the prejudice caused by failing to give
the instruction was not "purely speculative" because it could have
affected the jury's decision to impose the death penalty. 986 S.W.2d
The State recognizes that the Storey
analysis governs here, but argues that, in contrast to Storey,
it has met its burden of showing that the failure to give this
instruction was harmless beyond a reasonable doubt. See State v.
Bucklew, 973 S.W.2d 83, 91 (Mo. banc 1998). In fact, the State
goes so far as to contend that an error in failing to give an adverse
inference instruction, although of constitutional dimensions, is "virtually
always harmless," and that "the absence of the no-adverse-inference
instruction -- even if requested -- should almost never require reversal."
In support, the State notes that Missouri allows a defendant to choose
whether to request the no-adverse-inference instruction. Therefore, if
it is up to a defendant to decide whether to request the instruction,
then the instruction must be considered "optional," and failure
to give an optional instruction cannot, logically, be prejudicial.
The State's argument proves too much. Under the
State's analysis, the instruction would have been "optional" in
Storey also, and this Court would not have found the failure to
give it prejudicial. Moreover, other instructions in Missouri are not
required to be given if not requested by a defendant, such as an
instruction on a lesser-included offense. Yet, the failure to give such
an instruction when requested is reversible error if the instruction is
supported by the evidence.(FN10) To argue that the failure to such an
instruction is harmless on particular facts is appropriate; to suggest
that it is optional denigrates this basic and fundamental constitutional
In fact, Storey concluded that the
failure to instruct the jury was even more likely to be harmful than a
prosecutor's direct comment on that silence, because in the absence of
the instruction, "'the inferences drawn by the jury [from silence] may
be unfairly broad.'" Storey, 986 S.W.2d at 465, quoting,
Carter, 450 U.S. at 301 n.17, 101 S.Ct. 1112. While,
in Carter, the United States Supreme Court was ultimately
not required to resolve the issue of how to determine when this type of
error requires reversal, it noted that "it is arguable that a refusal to
give an instruction similar to the one that was requested here can never
be harmless ...". Carter, 450 U.S. at 304, 101 S.Ct. 1112.
The State also tries to distinguish Storey
on the basis that, in Storey, the jury only found one
aggravator but here the jury found multiple aggravators. The State
suggests that, given the strength of its case, a no-adverse-inference
instruction was not likely to have had a persuasive effect on the jury.
But, while the strength of the State's case can be an important factor
in determining whether an error is harmless, it cannot be the deciding
factor in determining whether the failure to give a no-adverse-inference
instruction was harmless in the penalty phase of a capital murder trial.
In Missouri, the evaluation "of the aggravating and the mitigating
evidence offered during the penalty phase is more complicated than a
determination of which side proves the most statutory factors beyond a
reasonable doubt." Storey, 986 S.W.2d at 464, quoting,
State v. Johnson, 968 S.W.2d 686, 701 (Mo. banc 1998).
Because Missouri is not a "balancing" state, "the jury has discretion to
assess life imprisonment even if mitigating factors do not outweigh
aggravating factors." Storey, 986 S.W.2d at 464. "[U]nder
no circumstance must the jury impose a sentence of death." Id.
Therefore, "the prejudice against a defendant who invokes the
privilege -- prejudice which is 'inescapably impressed on the jury's
consciousness' -- is not purely speculative as the State suggests."
Storey, 986 S.W.2d at 464-65, quoting, Carter, 450
U.S. at 301 n.18, 101 S.Ct. 1112, 67 L.Ed.2d 241.(FN11)
Another basis on which the State tries to distinguish
Storey is that the Storey jury never
received any adverse inference instruction at all, whereas here, the
jury was given an adverse inference instruction at the close of the
guilt phase of the trial. But, due to the wording of the instruction
given in the guilt phase of the trial, this discrepancy actually may
have added to the prejudice of failing to give an adverse inference
instruction at the end of the penalty phase. The guilt phase no-adverse-inference
(emphasis added). This instruction told the jury only
that no presumption arose as to guilt from Defendant's failure to
testify. As Defendant specifically pointed out, it did not say that no
presumption as to punishment, or no presumption at all, could be
drawn from his failure to testify. The Court rejects the State's
argument that the jury would know to apply this guilt phase instruction
to the penalty phase anyway. As noted by Old Chief v. United
States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1996):
The fact that juries have expectations as to what
evidence ought to be presented by a party, and may well hold the
absence of that evidence against the party, is also recognized in
the case law of the Fifth Amendment, which explicitly supposes that,
despite the venerable history of the privilege against self-incrimination,
jurors may not recall that someone accused of crime need not explain
the evidence or avow innocence beyond making his plea ... The
assumption that jurors may have contrary expectations and be moved
to draw adverse inferences against the party who disappoints them
undergirds the rule that a defendant can demand an instruction
forbidding the jury from drawing such an inference."
519 U.S. at 189 n.9 (emphasis added).
The danger that the jury considered Defendant's
failure to testify during the penalty phase was certainly present here.
Indeed, the other penalty phase instructions may have specifically led
the jury to believe that it could not consider the guilt phase
no-adverse-inference-instruction in the penalty phase trial, for the
first instruction given to the jurors in the penalty phase told them:
(emphasis added). From the outset, then, the jury was
advised that the penalty stage was different than the "first stage of
the trial" and that only Instructions No. 1 and 2 from the guilt phase
were applicable in the penalty phase.(FN12) The rest of the instructions
for the penalty phase, the judge told the jury, were those he was then
While this instruction was an accurate statement of
the law, the court's failure to then give the jury a no-adverse-inference
instruction in the penalty phase opened the door for the jury to
consider Defendant's silence in the penalty phase. The jury was
specifically instructed that the instructions it was then given were the
only instructions it had an obligation to follow in fixing punishment.
Accordingly, the jury had no reason to believe that the Fifth Amendment
privilege against self-incrimination applied. The absence of a no-adverse-inference
instruction was highlighted by the fact that the court did repeat
several other guilt phase instructions in the penalty phase regarding
issues such as whether the argument of counsel is evidence.
Finally, the State contends that the court repeatedly
advised the jury that it could consider all the evidence in deciding
punishment. Again, this is certainly correct, but this repeated
admonition in the absence of an instruction that explicitly removed
Defendant's silence from being treated as part of "all the evidence,"
and in addition to the court's admonition that only the instructions it
was then giving them and Instructions 1 and 2 from the first phase of
the trial were applicable, may well have permitted the jurors to
conclude that they affirmatively could consider Defendant's silence in
determining his punishment. Nothing prevented them from doing otherwise.(FN13)
For these reasons, the State has failed to meet its burden of proving
that the omission of a no-adverse-inference instruction in the penalty
phase was harmless beyond a reasonable doubt.
B. Stabbing an Inmate
Defendant alleges prosecutorial misconduct in the
cross-examination of Dr. Nelda Ferguson, the only mitigation witness
called by the defense. While it is unlikely that this precise issue will
arise again on retrial, we address it briefly because Defendant has
filed a motion asking us to remand for a new trial due to this alleged
Dr. Ferguson testified that Defendant had an impulse
control disorder, a personality disorder and an intermittent explosive
disorder. She concluded he could control his impulses in a very
structured environment and with medication. On cross-examination, she
admitted that, despite the fact that he had been on medication and in a
structured setting while incarcerated, he had accumulated 67
disciplinary and incident reports.
In order to test Dr. Ferguson's credibility, and to
test the validity and weight of her opinion, the State further cross-examined
her concerning an incident report that accused Defendant of stabbing
another inmate. The State hoped to show that Dr. Ferguson was not
familiar with his prior violence and that her testimony that his
problems could be controlled in a structured environment "stood in stark
contrast" to his numerous incident reports. In response, she said she
considered everything, including the reported stabbing.
On appeal, Defendant now offers a document that he
claims shows he was cleared of the prior charge. He asserts that the
prosecutor engaged in misconduct and misled the jury by asking Dr.
Ferguson about her familiarity with this alleged incident without also
clarifying for the jury that Defendant's name had been cleared.(FN14)
But, Defendant did not raise this issue below, the document on which he
relies is not in the record, and the State does not concede its accuracy.
It is, therefore, not properly before the Court.
Even were the document in the record, and assuming it
is accurate, defense counsel has offered no evidence that the prosecutor
was aware of the document during trial. To the contrary, inasmuch as
defense counsel failed to cross-examine on this issue, and instead
agreed that the witness could be excused without further questioning, it
appears that even defense counsel was not aware of it at the time. It is
certain that counsel did not bring this matter to the trial court's
attention until long after Dr. Ferguson had completed her testimony. The
court cannot be faulted for not excluding testimony for a reason not
made known to it.(FN15) Driver, 912 S.W.2d at 54.
C. Other Penalty Phase Errors
Defendant argues he was not properly granted
allocution, that the sentence fails a proportionality review under
section 565.035, RSMo 2000, and that numerous errors were made in
submission of statutory aggravators, in closing argument and in
admission of hearsay evidence in the penalty phase trial. The Court
declines to address these issues, which are not likely to arise on
Defendant contends that the trial court abused its
discretion in striking venireperson Morgan for cause based on her views
about the death penalty, and asks that for this reason we remand for a
new penalty phase trial. The United States Supreme Court has stated that
the test for determining disqualification of a juror on this issue is "whether
the juror's views would 'prevent or substantially impair the juror in
the performance of his duties as a juror in accordance with his
instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412,
424, 105 S.Ct. 844, 831 L.Ed.2d 841 (1985), quoting, Adams v. Texas,
448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). This is the
standard that our courts must apply. State v. Christeson, 50
S.W.3d 251, 264 (Mo. banc 2001).
On appeal, Defendant objects that the court erred in
applying this standard to venireperson Morgan because, while she had
equivocated at first about her ability to consider the death penalty,
and while she was not willing to act as foreperson and sign the verdict
form if the jury voted for death, she eventually indicated that she
could realistically consider the death penalty. As any error in the
application of the standard for juror qualification set out in
Wainright is unlikely to be repeated on remand for a new penalty
phase trial, we need not determine whether the trial court erroneously
applied the Wainright standard to venireperson Morgan.
Defendant also argues that the trial court abused its
discretion when it admitted evidence of prior convictions that do not
fall within the terms of a statutory aggravator under section 565.032,
RSMo 1994. Johns held that section 565.030.4, RSMo 1994, "permits
the admission of all aggravating or mitigating evidence that is
admissible under the rules of evidence, whether or not the evidence
relates to a section 565.032 statutory aggravator." 34 S.W.3d at
112-13. Similarly, Smith held that nothing in section
565.032.2(1) prohibited the introduction of such prior convictions.
32 S.W.3d at 557.
For the reasons set out in Johns,
Defendant's contention that the jury, not the court, was required to
determine whether his prior convictions for first-degree sexual abuse
and second-degree robbery constituted "serious assaultive" convictions
and so were statutory aggravators under section 565.032.2(1) is rejected.
The determination of whether a prior offense is "serious assaultive" is
a question of law for the court to decide. 34 S.W.3d at 114.
Finally, Defendant's argument that the "multiple
homicide" statutory aggravator, section 565.032.2(2), RSMo 1994, is
unconstitutionally vague is rejected. For the reasons set out in
Smith, the aggravator's language is clear and constitutionally
sound. 32 S.W.3d at 558. Accord, State v.
Barnett, 980 S.W.2d 297, 309 (Mo. banc 1998), cert. denied,
525 U.S. 1161, 119 S.Ct. 1074, 143 L.Ed.2d 77 (1999).
For the reasons set out above, the judgment as to the
death penalty on each conviction for first-degree murder is reversed,
and the case is remanded for a retrial of the penalty phase. In all
other respects, the judgment is affirmed.
FN1. See, e.g., State v. Roe, 845 S.W.2d
601, 607 (Mo. App. E.D. 1992) (evidence defendant asked his
girlfriend about using her gun was one fact supporting finding of
deliberation); State v. Holt, 758 S.W.2d 182, 185-86 (Mo. App.
E.D. 1988) (fact defendant made statements to the effect that he
wanted to get a knife for purposes other than committing murder could be
offered as part of res gestae of the crime and to show his
FN2. Defendant could have requested a limiting
instruction on use of this evidence, Thompson, 985 S.W.2d at
788, but did not.
FN3. State v. McFerron, 890 S.W.2d 764, 767
(Mo. App. E.D. 1995) ("defendant may not complain of prejudice which
his own conduct created"), citing, State v. Byrd,
676 S.W.2d 494, 500 (Mo. banc 1984). See also Hilton v. Crouch,
627 S.W.2d 99, 102 (Mo. App. S.D. 1982) ("The general rule is that a
party cannot complain on appeal of procedure which was adopted in the
trial court at his own request...").
FN4. Compare State v. Clark, 981 S.W.2d
143, 146-147 (Mo. banc 1998) (holding error in denying right to
examine venire about critical facts).
FN5. See State v. Harris, 870 S.W.2d 798,
809 (Mo. banc 1994) (in capital murder case, no abuse of discretion
to disallow further inquiry about witness' possession of weaponry and
failure to file tax returns; counsel sufficiently discredited witness
about drug sales), cert. denied, 513 U.S. 953, 115 S.Ct. 371,
130 L.Ed.2d 323 (1994); State v. Hughs, 908 S.W.2d 804,
807 (Mo. App. E.D. 1995) (no abuse of discretion to disallow
questions about drug buys on days previous to defendant's arrest,
because counsel was allowed to attack the credibility of the officer by
showing his lack of memory of other events on the same day as the arrest).
FN6. During oral argument in this Court,
counsel for Mr. Mayes argued that the fact these photographs were
displayed on a 60-inch television screen caused undue prejudice. While
use of this screen was unnecessary, defense counsel did not object to it.
To the contrary, when the court suggested showing all the exhibits on a
screen in order to "speed up things," defense counsel replied, "Yeah,
we can put it up." Mr. Mayes cannot now convict the trial court of error
as to a procedure to which his counsel agreed. "[I]t is axiomatic that a
defendant may not take advantage of self-invited error or error of his
own making." State v. Wise, 879 S.W.2d 494, 519 (Mo. banc
1994), quoting, Richardson v. State, 773 S.W.2d 858, 859 (Mo.
App. W.D. 1989). This Court has reviewed the sketch of the
courtroom submitted by defense counsel after oral argument in this case,
showing the location of the television screen. The Court grants the
motion to supplement the record with this drawing but, for the reasons
stated, does not find it determinative.
FN7. Compare sec. 566.062, RSMo 1994,
and sec. 566.064, RSMo 1994, defining statutory sodomy with
sec. 565.020, RSMo 1994, defining first-degree murder.
FN8. Because, on appeal, the State does not
raise any issue as to the wording of the offered instructions, but
argues only that it was not prejudicial to refuse to give an adverse
inference instruction in the penalty phase, the Court does not address
the propriety of the wording of either alternative instruction offered
FN9. It states, "If any such instructions [from
the first stage] are appropriate, they should be modified to properly
reflect the law and circumstances as they exist in the second stage
proceedings. Among the instructions that might be applicable with
necessary modifications are: Missouri Approved Instructions Criminal 3d
308.14'" (emphasis added).
FN10. See sec. 556.046.2, RSMo 1994;
State v. Fowler, 938 S.W.2d 894, 898 (Mo. banc 1997) (the court
errs in not giving a requested lesser included offense instruction if
there is a basis for both an acquittal of the higher offense and a
conviction of the lesser included offense").
FN11. Moreover, Lakeside v. Oregon,
435 U.S. 333, 340, 55 L.Ed.2d 319, 98 S.Ct. 1091 (1978), found "dubious"
the assumption that "the jurors have not noticed that the defendant did
not testify and will not, therefore, draw adverse inferences on their
FN12. Instruction No. 1 and No. 2 from the
guilt phase did not advise the jury of the privilege against self-incrimination.
FN13. As Defendant notes, the State also
arguably drew attention to his failure to testify by stating in closing
argument in the penalty phase that, "[t]he Defendant already had his
say on August 10th, 1998, when he took both their lives. Now it's
their turn to hear what is fair." While this was not an improper direct
reference to his failure to testify, it could have added to the
prejudicial effect of the failure to give the no-adverse-inference
instruction in the penalty phase of the trial.
FN14. Defendant also argues that one cannot
question a witness about specific acts of a defendant merely to show
other crimes, and that is all that occurred here. But, the State may, as
here, question a witness about specific acts to test that witness'
credibility. State v. Byrd, 676 S.W.2d 494, 505 (Mo. banc
1984); State v. Johnigan, 494 S.W.2d 23, 25-26 (Mo. 1973).
FN15. For these reasons, that portion of
Defendant's motion to remand requesting a new trial due to prosecutorial
misconduct in regard to this document is overruled. For the reasons set
forth infra we either do not reach, or find no error in, the
other issues raised in the motion to remand.