Deck asserts that the testimony of William Long, the son of the victims, exceeded the guidelines for victim impact evidence established by the United States Supreme Court in Payne v. Tennessee , 501 U.S. 808, 825 (1991), and that the trial court erred in overruling his motion for a mistrial because of the resulting emotional reaction in the courtroom. The matter arose as part of the state's penalty phase testimony when William Long read a statement that the family had prepared. After his testimony, three members of the jury were crying, as were members of the Long family who were seated in the courtroom.

Victim impact evidence is admissible under the United States and Missouri Constitutions. State v. Roberts , 948 S.W.2d 577, 594 (Mo. banc 1997), cert. denied . ___ U.S. ___, 118 S.Ct. 711 (1998). According to Payne , just as the defendant is entitled to present evidence in mitigation designed to show that the defendant is a "uniquely individual human being," the State is also allowed to present evidence showing each victim's "uniqueness as an individual human being." Payne , 501 U.S. at 822-23. In particular, "the State is permitted to show that victims are individuals whose deaths represent a unique loss to society and to their family and that the victims are not simply 'faceless strangers.'" Id . at 825. Payne also holds that victim impact evidence violates the constitution only if it is so "unduly prejudicial that it renders the trial fundamentally unfair." Id . Deck argues that the evidence in this case violated this standard and that the jury based its verdict on emotion. He does not, however, complain of the testimony itself, but of the emotional level in the courtroom and the effect it had on the jury.

Although emotional outbursts are to be prevented insofar as possible, the trial court exercises broad discretion in determining the effect of such outbursts on the jury. State v. Brooks , 960 S.W.2d 479, 491 (Mo. banc 1997), cert. denied , ___ U.S. ___, 118 S.Ct. 2379 (1998). Additionally, this Court has held that "[i]n determining whether to declare a mistrial, the trial court may consider the spontaneity of the outburst, whether the prosecution was at fault, whether something similar, or even worse, could occur on retrial, and the further conduct of the trial." Id .

Deck does not point to specific instances in the record that indicate an "extreme emotional level," and therefore, it is difficult to do otherwise than defer to the trial court's discretion. A review of the record does not reflect the "extreme emotional level" Deck describes. There were apparently no emotional outbursts among the family members, only some muted crying during the testimony of the Long children. Furthermore, there is no reason to believe that the family members would not have the same reaction on retrial. In the absence of evidence that emotional outbursts actually occurred, the trial court did not abuse its discretion in overruling Deck's motion for a mistrial.

A. Non-MAI Instructions

Deck next contends that his state and federal constitutional rights were denied when the trial court erroneously refused to submit two non-MAI mitigating circumstance instructions in the penalty phase. Deck's proposed instructions, loosely based on MAI-CR3d 313.44(a), listed six nonstatutory mitigating circumstances for the jury's consideration. This Court again rejects this often-raised claim that the listing of nonstatutory factors in mitigation is constitutionally required. State v. Clay , 975 S.W.2d 121, 133 (Mo. banc 1998) cert. denied , ___ U.S. ___, 119 S.Ct. 834 (1999); Rousan , 961 S.W.2d at 849.

B. Defective Submission of MAI-CR3d 313.44A

Deck raises the far more problematic claim that the defective submission of Instructions No. 8 and No. 13, the penalty phase instructions on the submission of mitigating circumstances, constituted plain error and violated his right to due process of law, to reliable sentencing, and to be free from cruel and unusual punishment as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 10 and 21, of the Missouri Constitution. The defect was that the final two paragraphs of MAI-CR3d 313.44A, the pattern mitigating circumstances instruction, were inadvertently omitted from Instructions No. 8 and No. 13. That omission, as Deck maintains, created a reasonable likelihood that the jurors mistakenly believed they had to find the existence of any specific mitigating circumstance by unanimous vote .
Instruction No. 8, as submitted to the jury, stated:

As to Count I, if you unanimously find that the facts and circumstances in aggravation of punishment, taken as a whole, warrant the imposition of a sentence of death upon the defendant, you must then determine whether there are facts or circumstances in mitigation of punishment which are sufficient to outweigh the facts and circumstances in aggravation of punishment. In deciding this question, you may consider all of the evidence presented in both the guilt and the punishment stages of the trial.

Instruction No. 13 was identical, except that it referred to Count III.

The final two paragraphs of MAI-CR 3d 313.44A, which were omitted from the instructions in this case, read as follows:

You shall also consider any (other) facts or circumstances which you find from the evidence in mitigation of punishment.

It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment. If each juror determines that there are facts or circumstances in mitigation of punishment sufficient to outweigh the evidence in aggravation of punishment, then you must return a verdict fixing defendant's punishment at imprisonment for life by the Department of Corrections without eligibility for probation or parole.

Because Deck failed to object to these instructions at trial, this Court is asked to review for plain error. For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury so that it is apparent that the instructional error affected the verdict. State v. Doolittle , 896 S.W.2d 27, 29 (Mo. banc 1995).

In a capital case, the sentencer may not be precluded from considering, as a mitigating factor, any relevant circumstance that the defendant proffers as a basis for a sentence less than death. Mills v. Maryland , 486 U.S. 367, 374 (1988). This principle is violated if the jury is given an instruction that could reasonably be interpreted as precluding them from considering any mitigating evidence unless the jurors unanimously agree on the existence of such evidence. Id . at 384. On the other hand, there is no constitutional requirement that the jury in a capital case be given any particular guidance as to how to undertake the discretionary sentencing decision. Buchanan v. Angelone , ___ U.S. ___, 118 S.Ct. 757, 761-62 (1998).

The fallacy of Deck's argument -- that the jury was likely misled into believing that they had to find mitigating circumstances by unanimous vote -- is that it wrongly assumes that the omitted paragraph was necessary to comply with the holding in Mills . See State v. Petary , 790 S.W.2d 243 (Mo. banc 1990). Before MAI-CR 3d 313.44 was revised, effective January 1, 1989, the omitted paragraph was not part of the pattern instruction, and in its place, was a paragraph that read as follows:

If you unanimously find that one or more mitigating circumstances exist sufficient to outweigh the aggravating circumstances found by you to exist, (then) (then, on Count ) you must return a verdict fixing defendant's punishment at imprisonment for life by the Division of Corrections without eligibility for probation or parole.

Like Instructions No. 8 and No. 13 in this case, the old version of the pattern instruction did not specifically advise the jurors that they need not unanimously find the existence of a particular mitigating facts or circumstances. Nonetheless, the old version, despite the alleged defect, survived essentially the same constitutional challenge under Mills that is now brought in this case. State v. Weaver , 912 S.W.2d 499, 518 (Mo. banc 1995); Petary , 790 S.W.2d at 245. Although the alleged defect in this case was the omission of the final paragraph of the instruction, rather than the inclusion of an allegedly defective paragraph in the old version of the instruction, the alleged defect is essentially the same -- that both instructions purported to require unanimous votes on mitigating circumstances.

The rationale of this Court's holding in Weaver and Petary is that when the instructions in question are considered in conjunction with all the other instructions, the jury is not misled. Id . Here, as in Weaver and Petary , additional explanatory instructions were submitted for both counts. Those instructions, No. 9 and No. 14, were based on MAI-CR 3d 313.46A and were identical except for reference to different counts. Instruction No. 9 stated:

As to Count I, you are not compelled to fix death as the punishment even if you do not find the existence of facts and circumstances in mitigation of punishment sufficient to outweigh the facts and circumstances in aggravation of punishment. You must consider all the evidence in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you.

This Court observed in Petary that MAI-CR 3d 313.46A informs the jury,

in unmistakable terms that it is never obliged to return death sentence. It has already been told that, in making this decision, it may consider any circumstances it finds in mitigation of punishment. It is clear that in making this final resolution each juror may consider any fact or circumstance which he or she considers sufficient to indicate mitigation, or, for that matter, a juror may vote against a death sentence without having a reason.

Petary , 790 S.W.2d at 246.

Because Instructions No. 9 and No. 14 were submitted along with Instructions No. 8 and No. 13, it was made clear to each juror that he or she was individually afforded the discretion to find mitigating circumstances, without unanimity with the other jurors, and vote against a death sentence on the basis of those individual findings alone.

Furthermore, the possibility that the jurors were misled should be discounted even more by the fact that defense counsel argued forcefully in his closing that each juror had the individual right to vote for a sentence of life.

Despite Deck's assertions, Instructions No. 8 and No. 13 explicitly require unanimity only in finding facts and circumstances in aggravation of punishment. There is no basis for reading that requirement into the rest of the instruction. In fact, it is all the more unlikely that the jurors perceived a unanimity requirement in this case, because there were no statutory mitigators submitted for their consideration. The instructions, as given and taken as a whole, effectively guided the jurors through the deliberation process as set out in sections 565.030 and 565.032, RSMo 1994, and there is no reasonable likelihood that the jury applied the challenged instructions in a way that prevented the consideration of mitigating circumstances.

In a related argument, Deck contends that the jury was not instructed that they must return a verdict fixing punishment at imprisonment for life if the evidence in mitigation of punishment was sufficient to outweigh the evidence of aggravation of punishment, as required by section 565.030.4(3), RSMo 1994. We disagree. While it is true that Instructions No. 8 and No. 13 did not explicitly mandate the punishment at life imprisonment if the circumstances in mitigation outweighed the circumstances in aggravation, it was nonetheless clear from the other instructions that that result must follow because life imprisonment was the only sentencing alternative available. The point is denied.

C. Failure to Define "Mitigating"

The next issue involves an unusual incident that occurred during the jury's deliberations. The jury sent a note to the trial court asking, "What is the legal definition of mitigating (as in mitigation circumstances)? Instruction 8." The trial court replied, "Any legal terms in the instructions that have a 'legal' meaning would have been defined for you. Therefore, any terms that you have not had defined for you should be given their ordinary meaning." The jury followed up with a note inquiring "Can we have a dictionary?" The trial court informed the jury, "No, I'm not permitted to give you one." Deck contends that this apparent confusion on a legal issue obligated the trial court to provide the requested definition and that the failure to do so compounded the error concerning Instructions the omitted paragraphs from Instructions No. 8 and No. 13. Significantly, Deck did not raise this issue at trial. When the jury posed the questions, Deck did not request that the term "mitigating" be defined, nor did he object to the trial court's responses. In the absence of an objection, Deck asks for plain error review under the manifest injustice standard of Rule 30.20.

Despite the fact that one or more jurors may have been confused, the trial court gave the correct responses to the questions. The first question was a request for the "legal definition" of "mitigating," but this word is not defined in the MAI-CR 3d instructions. See MAI-CR 3d 313.44A (10-1-94); MAI-CR 3d 333.00 (1-1-87). This Court has held that "[w]hen MAI notes on use do not provide for a definition, the court must not give one." State v. Feltrop , 803 S.W.2d 1, 14 (Mo. banc 1991). In State v. Wise , 879 S.W.2d 494, 518, (Mo. banc 1994), a case particularly on point, the defendant claimed the trial court erred in refusing the defendant's tender of an instruction defining the term "mitigation." In upholding the trial court's ruling, this Court stated, "MAI instructions do not define "mitigation"; therefore, the court properly refused the proposed definition." Id . Consistent with Feltrop and Wise , the notes on use to the MAI-CR 3d instruction on definitions provides:

A definition of a term, word, or group of words shall not be given unless permitted by paragraphs A, B, C, D, or E above, [not applicable in this case] even if requested by counsel or the jury. If the jury, while deliberating, requests the definition of a term whose definition is not permitted by paragraphs A, B, C, D, or E above, the following response is suggested:

I am not permitted to define the word(s) for you. (Except for those terms for which you have been supplied definitions, each) (Each) word used in the instruction has its common and generally understood meaning.

MAI-CR 3d 333.00 (1-1-87), Note on Use 2. As noted, the trial court followed this instruction to the letter. No error was committed.

Additionally, the trial court was correct in refusing to provide a dictionary for the jury. All courts view the use of a dictionary as highly improper because the jury should rely solely upon the evidence and the court's instructions. State v. Suschank , 595 S.W.2d 295, 297-98 (Mo. App. 1979). The impropriety of permitting jurors to search a dictionary is that it allows them to select at will definitive language that might misrepresent the court's instructions. State v. Taylor , 581 S.W.2d 127, 129 (Mo. App. 1979). In view of these cases, Deck's position that the judge may supplement an instruction with a dictionary definition is not persuasive.

The essence of Deck's argument is that the penalty phase instructions, and the mitigating circumstances instructions in particular, are too easily misunderstood. At the hearing on the motion for new trial, Deck called Dr. Richard Weiner, a psychologist, who testified that "Missouri penalty phase instructions are poorly understood." Dr. Weiner explained that he came to that conclusion as a result of a study he conducted that also showed that jurors have the most difficulty with the concept of mitigation. Dr. Weiner's study, however, must be discounted because the people interviewed for the study did not act as jurors. They were given hypothetical facts that were different than the facts in this case, and they did not hear the testimony of witnesses, observe physical evidence or deliberate with eleven other jurors. More importantly, in the context of the instructions as a whole, the term "mitigating" is always contrasted with the term "aggravating" so that no reasonable person could fail to understand that "mitigating" is the opposite of "aggravating." That contrast, for instance, is highlighted in Instructions No. 9 and No. 14, which were based on MAI-CR 3d 313.465A and which stated in pertinent part, "you are not compelled to fix death as the punishment even if you do not find the existence of facts and circumstances in mitigation of punishment sufficient to outweigh the facts and circumstances in aggravation of punishment. . . ."

Finally, Deck's suggestion that the jury's confusion about the word "mitigating" was due in large part to the omission of the concluding paragraphs to Instructions No. 8 and No. 13 likewise has no merit. Those omitted paragraphs do not even purport to define mitigation for the jury. Moreover, Deck's notion that the jury questions reveal that some jurors "thought they were prohibited from considering certain facts or circumstances as 'mitigating'" and therefore in violation of Mills v. Maryland , rests on pure speculation and does not logically follow from the content of the questions.

For these reasons, this Court concludes that the trial court committed no error in refusing to define the term "mitigating" or to provide the jury with a dictionary.

Deck next alleges that the trial court erred in permitting the prosecutor to make improper comments during penalty phase closing argument. The trial court has broad discretion in controlling the scope of closing argument and the court's rulings will be cause for reversal only upon a showing of abuse of discretion resulting in prejudice to the defendant. State v. Rousan , 961 S.W.2d 831, 851 (Mo. banc), cert. denied , ___ U.S. ___, 118 S.Ct. 2387 (1998). In order for a prosecutor's statements to have such a decisive effect, there must be a reasonable probability that the verdict would have been different had the error not been committed. State v. Barton , 936 S.W.2d 781, 786 (Mo. banc 1996).

A. Mercy Argument

The first particularized claim is that the prosecutor stated that the jury should impose the death penalty because that was "the only sentence [the jury could] impose to show justice and to show mercy to those people, to the people in the courtroom." Defense counsel objected to the statement and requested a mistrial. The trial court sustained the objection, but overruled the motion for a mistrial. The trial court then granted the prosecutor permission to rephrase the comment, but did not advise the jury that the objection had been sustained. Deck argues that the trial court's inaction violated his rights to due process of law, a fair trial, reliable sentencing, and to be free from cruel and unusual punishment as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 10, 18(a) and 21 of the Missouri Constitution.

Deck's argument focuses on the fact that the trial judge did not advise the jury that the objection had been sustained. However, Deck never requested that the trial court advise the jury that the objection was sustained, and, instead, the trial court took sufficient curative action on its own initiative and properly instructed the prosecuting attorney to rephrase his argument.

The need for curative action assumes, of course, that the prosecutor's mercy argument was improper in the first place. Prosecutors may discuss the concept of mercy in their closing arguments because mercy is a valid sentencing consideration, Rousan , 961 S.W.2d at 851, and in that connection may argue that the defendant should not be granted mercy. Prosecutors cannot, however, argue that the jurors may not lawfully grant a defendant mercy by imposing a life sentence. Id . In this case, the prosecutor did not argue that the jurors could not lawfully grant mercy on appellant; thus, Deck's argument has no merit.

B. Personalization

Deck also claims that the trial court erred in permitting the prosecutor to personalize his penalty phase closing argument. The prosecutor told the jury that while they were deliberating, they should "count out ten minutes and you think about how long that is and then think about somebody pointing a gun at your head at the same time." No objection was made to the prosecutor's argument; therefore, Deck requests plain error review.

Relief should rarely be granted on an assertion of plain error in closing argument. State v. Silvey , 894 S.W.2d 662, 670 (Mo. banc 1995). The reason, as this Court has explained, is that "in the absence of objection and request for relief the trial court's options are narrowed to uninvited interference with [the closing argument] and a corresponding increase of error by such intervention." Id . In order to be entitled to relief, appellant must make a substantial showing that manifest injustice will result if relief is not granted . State v. Wood , 719 S.W.2d 756, 759 (Mo. banc 1986).

Deck argues that the prosecutor's comment urging the jurors to put themselves in the place of the victim was the same kind of improper personalization this Court condemned in State v. Storey , 901 S.W.2d 886, 901 (Mo. banc 1995). In Storey , the prosecutor told the jurors to put themselves in the victim's place and then graphically described the crime to the jurors as if they were the victims. This Court concluded that the prosecutor's argument was improper because it "could only arouse fear in the jury," id ., and moreover, arguments that inflame and arouse fear in the jury are especially prejudicial when the death penalty is at issue. Id . (citing State v. Tiedt , 206 S.W.2d 524, 529 (Mo. banc 1947)).

The prosecutor's argument in this case is distinguishable from the prosecutor's argument in Storey . Here, the prosecutor's comments were brief and isolated and did not involve graphic detail, and as such, they did not result in manifest injustice. The point is denied.

Deck claims that the trial court erroneously submitted instructions in both guilt phase and penalty phase by defining "proof beyond a reasonable doubt" with the words, "firmly convinced." Citing Cage v. Louisiana , 498 U.S. 39 (1990), Deck contends that this language allowed the jury to reach its decisions on both guilt and punishment based upon a level of proof less than that which is constitutionally mandated. This Court has consistently and repeatedly denied Deck's precise claim. The phrase "firmly convinced" is essentially synonymous with the phrase "beyond a reasonable doubt." State v. Barnett , 980 S.W.2d 297 (Mo. banc 1998), cert. denied , ___ U.S. ___, 119 S.Ct. 1074 (1999); State v. Jones , 979 S.W.2d 171 (Mo. banc 1998), cert. denied , ___ U.S. ___, 119 S.Ct. 886 (1999); State v. Johnson , 968 S.W.2d 686 (Mo. banc 1998). The point is denied.

Under section 565.035.3, RSMo 1994, this Court is required to determine:

1) Whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor;

2) Whether a statutory aggravating circumstance and any other circumstances found by the trier of fact were supported by the evidence; and

3) Whether the sentence is excessive or disproportionate to the punishment imposed in similar cases, considering both the crime, the strength of the evidence and the defendant.

Having thoroughly reviewed the record, this Court is satisfied that there is no evidence to suggest that the punishment imposed was a product of passion, prejudice, or any other arbitrary factor.

With regard to statutory aggravating circumstances, the jury found: 1) that each murder was committed while the defendant was engaged in the commission of another unlawful homicide, section 565.032.2(2); 2) that the murders were committed for the purpose of receiving money or any other thing of monetary value, section 565.032.2(4); 3) that the murders were outrageously and wantonly vile, horrible, and inhuman in that they involved depravity of mind, section 565.032.2(7); 4) that the murders were committed for the purpose of avoiding a lawful arrest, section 565.032.2(10); 5) that the murders were committed while defendant was engaged in the perpetration of burglary, section 565.032.2(11); and 6) that the murders were committed while defendant was engaged in the perpetration of robbery, section 565.032.2(11). From this Court's review of the record, the evidence amply supports the statutory aggravators found by the jury.

Finally, the imposition of the death penalty in this case is clearly not excessive or disproportionate. The strength of the evidence and the circumstances of the crime far outweigh any mitigating factors in Deck's favor.

There are numerous Missouri cases where, as here, the death penalty was imposed on defendants who murdered more than one person. See, e.g., State v. Johnson , 968 S.W.2d 123 (Mo. banc 1998); State v. Clemons , 946 S.W.2d 206 (Mo. banc 1997); State v. Ramsey , 864 S.W.2d 320 (Mo. banc 1993); State v. Mease , 842 S.W.2d 98 (Mo. banc 1992); State v. Hunter , 840 S.W.2d 850 (Mo. banc 1992); State v. Ervin , 835 S.W.2d 905 (Mo. banc 1992); State v. Powell , 798 S.W.2d 709 (Mo. banc 1990); State v. Reese , 795 S.W.2d 69 (Mo. banc 1990); State v. Sloan , 756 S.W.2d 503 (Mo. banc 1988); State v. Griffin , 756 S.W.2d 475 (Mo. banc 1988); State v. Murray , 744 S.W.2d 762 (Mo. banc 1988); State v. Young , 701 S.W.2d 429 (Mo. banc 1985).

In addition, a sentence of death has often been imposed when the murder involved acts of brutality and abuse that showed depravity of mind. See , e.g ., State v. Kinder , 942 S.W.2d 313 (Mo. banc 1996); State v. McMillin , 783 S.W.2d 82 (Mo. banc 1990); State v. Sidebottom , 753 S.W.2d 915 (Mo. banc 1988); State v. Walls , 744 S.W.2d 791 (Mo. banc 1988); State v. Lingar , 726 S.W.2d 728 (Mo. banc 1987); State v. Roberts , 709 S.W.2d 857 (Mo. banc 1986).

This Court has also upheld the death sentence where the murder was committed in hopes of avoiding arrest or detection. State v. Clemons , 946 S.W.2d 206 (Mo. banc 1997); State v. Copeland , 928 S.W.2d 828 (Mo. banc 1996); State v. Richardson , 923 S.W.2d 301 (Mo. banc 1996); State v. Gray , 887 S.W.2d 369 (Mo. banc 1994); State v. Ramsey , 864 S.W.2d 320 (Mo. banc 1993); State v. Six , 805 S.W.2d 159 (Mo. banc 1991); State v. Kilgore , 771 S.W.2d 57 (Mo. banc 1989); State v. Griffin , 756 S.W.2d 475 (Mo. banc 1988); State v. Grubbs , 724 S.W.2d 494 (Mo. banc 1987); State v. Foster , 700 S.W.2d 440 (Mo. banc 1985).

The death penalty imposed in this case is proportionate to the sentence imposed in similar cases.

For the foregoing reasons, the judgment is affirmed.
All concur.

Footnotes :

FN1. Charles Hill testified at the preliminary hearing that he was a retired Marine sergeant and a former boyfriend of Tonia Cummings, who overheard Deck and Cummings plan for the robbery/murder about a week before it was carried out. Hill did not, however, testify at the suppression hearing or at trial.