Missouri executes triple murderer after stay is lifted

By Carey Gillam - Reuters.com

Jul 16, 2014

(Reuters) - After a nearly day-long delay amid a flurry of final appeals, Missouri put to death a triple murderer who had claimed both that he was innocent and that he suffered from mental incompetence. John Middleton, 54, was given a lethal injection and pronounced dead at 7:06 p.m. CST, according to Missouri Department of Corrections spokesman Mike O'Connell.

Middleton had been scheduled to die by lethal injection shortly after midnight on Wednesday at a state prison in Bonne Terre but the execution was called off after a late-night stay of execution granted by U.S. District Judge Catherine Perry. She ruled that Middleton met a standard for mental incapacity and should be given a chance for a new hearing. The U.S. Supreme Court has ruled it unconstitutional to execute inmates with mental disabilities. That stay was lifted Wednesday morning by an appellate court but Perry again issued a stay and the matter went back to the appellate court and to the Missouri Supreme Court, both of which ordered that the execution could proceed. The U.S. Supreme Court also refused to issue a stay and the execution began at 6:58 p.m. local time, prison officials said.

Middleton is a former methamphetamine dealer who was convicted of the 1995 murders of three people who had ties to the drug trade and who prosecutors said Middleton feared would inform on him to police. Apart from claims of mental incapacity, Middleton's lawyers had also argued that new evidence showed Middleton was innocent of the killings of Randy Hamilton, Stacey Hodge and Alfred Pinegar in the summer of 1995. Missouri Attorney General Chris Koster said Middleton's claims were not valid and justice was done. “Twenty years ago, John Middleton murdered three people out of fear they would expose him as the drug dealer he was," Koster said in a statement. "He received the death penalty for each of his three murders. This evening, Mr. Middleton paid the ultimate price for his choices.”
 

STLtoday.com

July 17, 2014

BONNE TERRE, Mo. (AP) — A former methamphetamine dealer was executed Wednesday for killing three people in remote northern Missouri out of fear that they would report his drug activity to police. John Middleton, 54, died Wednesday night from an injection of pentobarbital, the sixth execution in Missouri this year. Only Florida and Texas, with seven each, have performed more executions.

Middleton was convicted of killing Randy "Happy" Hamilton and Stacey Hodge in early June 1995, then Alfred Pinegar several days later. He maintained to the end that someone else was responsible for the slayings. "You are killing an innocent man," Middleton said in his final statement. State officials, including Gov. Jay Nixon, disagreed. "Tonight has brought a conclusion to a case that illustrates how methamphetamine can have such a monstrous impact on so many lives," Nixon said in a statement.

Michael Black, Pinegar's uncle, questioned why it took so long for the execution to occur. "Nineteen years seems like a long time to wait for justice," he said following the execution.

Middleton was a small-time meth dealer in sparsely populated northern Missouri in the mid-1990s. After several drug suspects were arrested on June 10, 1995, he allegedly told a friend: "The snitches around here are going to start going down." A day later, according to court records, Middleton and his girlfriend met Hamilton and Hodge on a gravel road. Prosecutors said Middleton shot and killed them both and hid the bodies in the trunk of Hamilton's car. Pinegar, another meth dealer according to police, was shot in the face on June 23, 1995. His body was found in a field near Bethany. Acquaintances say Middleton told them he killed all three. Police also had eyewitness accounts of Middleton purchasing ammunition in the hours before Pinegar's death. Middleton was convicted in 1997. Middleton's girlfriend, Maggie Hodges, is serving life in prison after pleading guilty to second-degree murder in all three deaths.

In February, a man whose name has not been disclosed because he fears retribution signed an affidavit saying that two rival meth dealers drove him to a rural area soon after Pinegar's death and accused him of being a snitch. He said the men showed him Pinegar's body, saying: "There's already been three people killed. You want to be number four?" The witness said the two dealers then beat him unconscious with a baseball bat and raped his girlfriend. Neither police nor the courts were swayed by the new witness. Harrison County Sheriff Josh Eckerson agreed to take a new look at the case but said his investigation found no evidence to back up the claims. He is convinced that Middleton was the real killer. Several court appeals claiming innocence were turned away.

Concerns about whether Middleton was mentally fit for execution, though, spurred a long delay in the execution, which occurred 19 hours after it was originally scheduled, at 12:01 a.m. A federal judge granted a stay of execution late Tuesday, citing a need for a hearing to determine if Middleton was mentally ill. Courts have held it is unconstitutional to execute the mentally ill. A federal appeals court overturned the stay later Wednesday and neither the U.S. Supreme Court nor the Missouri Supreme Court would halt the execution.

Missouri executes man for killing 3 people

By Jim Salter - News-Leader.com

July 17, 2014

BONNE TERRE – A former methamphetamine dealer was executed Wednesday for killing three people in remote northern Missouri out of fear that they would report his drug activity to police. John Midddleton, 54, died Wednesday night from an injection of pentobarbital, the sixth execution in Missouri this year. Only Florida and Texas, with seven each, have performed more executions. Middleton was convicted of killing Randy "Happy" Hamilton and Stacey Hodge in early June 1995, then Alfred Pinegar several days later. He maintained to the end that someone else was responsible for the slayings. "You are killing an innocent man," Middleton said in his final statement. State officials, including Gov. Jay Nixon, disagreed. "Tonight has brought a conclusion to a case that illustrates how methamphetamine can have such a monstrous impact on so many lives," Nixon said in a statement.

Michael Black, Pinegar's uncle, questioned why it took so long for the execution to occur. "Nineteen years seems like a long time to wait for justice," he said following the execution.

Middleton was a small-time meth dealer in sparsely populated northern Missouri in the mid-1990s. After several drug suspects were arrested on June 10, 1995, he allegedly told a friend: "The snitches around here are going to start going down." A day later, according to court records, Middleton and his girlfriend met Hamilton and Hodge on a gravel road. Prosecutors said Middleton shot and killed them both and hid the bodies in the trunk of Hamilton's car. Pinegar, another meth dealer according to police, was shot in the face on June 23, 1995. His body was found in a field near Bethany. Acquaintances say Middleton told them he killed all three. Police also had eyewitness accounts of Middleton purchasing ammunition in the hours before Pinegar's death. Middleton was convicted in 1997. Middleton's girlfriend, Maggie Hodges, is serving life in prison after pleading guilty to second-degree murder in all three deaths.

In February, a man whose name has not been disclosed because he fears retribution signed an affidavit saying that two rival meth dealers drove him to a rural area soon after Pinegar's death and accused him of being a snitch. He said the men showed him Pinegar's body, saying: "There's already been three people killed. You want to be number four?" The witness said the two dealers then beat him unconscious with a baseball bat and raped his girlfriend. Neither police nor the courts were swayed by the new witness. Harrison County Sheriff Josh Eckerson agreed to take a new look at the case but said his investigation found no evidence to back up the claims. He is convinced that Middleton was the real killer. Several court appeals claiming innocence were turned away.

Concerns about whether Middleton was mentally fit for execution, though, spurred a long delay in the execution, which occurred 19 hours after it was originally scheduled, at 12:01 a.m. A federal judge granted a stay of execution late Tuesday, citing a need for a hearing to determine if Middleton was mentally ill. Courts have held it is unconstitutional to execute the mentally ill. A federal appeals court overturned the stay later Wednesday and neither the U.S. Supreme Court nor the Missouri Supreme Court would halt the execution.

Missouri executes man convicted of killing 3 people

By Jim Salter - KansasCity.com

July 16, 2014

BONNE TERRE, Mo. — A former methamphetamine dealer was executed Wednesday for killing three people in rural northern Missouri out of fear that they would report his drug activity to police. John Middleton, 54, died from an injection of pentobarbital, the sixth execution in Missouri this year. Only Florida and Texas, with seven each, have performed more executions.

Middleton was convicted of killing Randy “Happy” Hamilton and Stacey Hodge in early June 1995, then Alfred Pinegar several days later. Middleton was a small-time meth dealer in sparsely populated northern Missouri in the mid-1990s. After several drug suspects were arrested on June 10, 1995, he allegedly told a friend: “The snitches around here are going to start going down.” A day later, according to court records, Middleton and his girlfriend met Hamilton and Hodge on a gravel road. Prosecutors said Middleton shot and killed them both and hid the bodies in the trunk of Hamilton’s car. Pinegar, another meth dealer, was shot in the face on June 23, 1995. His body was found in a field near Bethany. Acquaintances say Middleton told them he killed all three. Police also had eyewitness accounts of Middleton purchasing ammunition in the hours before Pinegar’s death. Middleton was convicted in 1997. Middleton’s girlfriend, Maggie Hodges, is serving life in prison after pleading guilty to second-degree murder in all three deaths.

In February, a man whose name has not been disclosed because he fears retribution signed an affidavit saying that two rival meth dealers drove him to a rural area soon after Pinegar’s death and accused him of being a snitch. He said the men showed him Pinegar’s body, saying: “There’s already been three people killed. You want to be number four?” The witness said the two dealers then beat him unconscious with a baseball bat and raped his girlfriend. Harrison County Sheriff Josh Eckerson agreed to take a new look at the case but said his investigation found no evidence to back up the claims. He is convinced that Middleton was the real killer.

The execution Wednesday evening occurred several hours after it was originally scheduled, at 12:01 a.m. A federal judge granted a stay of execution late Tuesday, citing a need for a hearing to determine if Middleton was mentally ill. A federal appeals court overturned the stay and neither the U.S. Supreme Court nor the Missouri Supreme Court would halt the execution. Middleton’s appeals on claims that he was innocent were also turned away, and Gov. Jay Nixon denied a request for clemency.

John Middleton

The Crime: Victims Randy Hamilton and Stacey Hodge

On June 10, 1995, several drug dealers were arrested in Cainsville, Missouri. Middleton, a drug dealer, worried that informants would implicate him as well. That afternoon, he told Tom Constable that there were "some snitches that should be taken care of," because he did not want to go back to prison. He mentioned several names, including Randy "Happy" Hamilton.

The next day, Middleton and his girlfriend, Maggie Hodges, met Hamilton and Stacey Hodge on a gravel road. Stacey Hodge was Hamilton's girlfriend. Middleton shot Hamilton in the back once with an SKS rifle, and shot Stacey Hodge in the back three times. Middleton then shot Hamilton in the head, killing him. Maggie Hodges killed Stacy Hodge by shooting her in the head with another SKS rifle. Both bodies were placed in the trunk of Hamilton's car. Middleton drove the car, looking for a place to dispose of the bodies. Hodges followed in a truck.

While driving around, Middleton saw Danny Spurling. Middleton -- covered in blood and driving Hamilton's car -- said that he had "taken care" of Hamilton. He asked Spurling what to do with the bodies, indicating that he might burn them in Hamilton's old house. The next morning, Middleton gave Spurling the car stereo from Hamilton's car, and said that "they were really going to freak out when they found those two." Middleton had a written list of names, and asked if Spurling knew anyone on the list.

About a week and a half later, Middleton told Richard Pardun that "there was a narc around and they were going to take care of it." He said that he had a "hit list," mentioning several names on it, including Hamilton, Alfred Pinegar, (FN1) and William Worley. Middleton offered Pardun $3,500 to set up a meeting with Worley.

On June 25, 1995, John Thomas was at Middleton's house, discussing informants. Middleton listed several people who "needed to be taken care of," including Hamilton, Pinegar, and Worley. Thomas noticed two SKS rifles and a box belonging to Hamilton. When Thomas asked about the box, Middleton replied, "the guy who owned that box wouldn't be needing it no more."

About the same time, Middleton visited Dennis Rickert in Iowa. Middleton told Rickert: "I'd knowed 'Happy' for 15 [years]. He knew enough to put me away for life. I done 'Happy.'" Middleton also gave Rickert several guns, including two SKS rifles, which Rickert later turned over to the police.

Middleton was arrested for another murder (Pinegar's) in late June 1995. On July 10, 1995, Hamilton's car was discovered in the woods where it had been abandoned. The car stereo was missing. The victims' decomposed bodies were in the trunk. Bullet fragments taken from Stacy Hodge's body displayed class characteristics consistent with the SKS rifles that Middleton gave Rickert.

While awaiting trial in the Harrison County jail, Middleton confessed to fellow inmate Douglas Stallsworth. Stallsworth testified that Middleton described the murders, admitted killing Hamilton and Hodge because they were informants, and acknowledged hiding their bodies and taking the rifles to Iowa.

News:

The Missouri Supreme Court has postponed what would have been the state's first execution in nearly three years, to allow further legal challenges to its lethal-injection protocol.

The court last month set a July 30 execution date for John Middleton, but issued a stay of execution Friday after learning that Middleton was seeking to join a federal lawsuit by five other death-row inmates.

That suit challenges Missouri's execution protocol as unconstitutional, alleging that the state has a history of using unfit, unscreened personnel.

Missouri has not executed an inmate since Marlin Gray, a convicted killer, was put to death in October 2005. Another killer, Michael Taylor, was to be next, but the court granted a last-minute stay in February 2006.

Nationwide, executions were on hold while Taylor and other inmates challenged constitutionality of the lethal injection. In Taylor's suit, the surgeon who supervised Missouri's lethal injection testified that he was dyslexic.

A Post-Dispatch investigation revealed that the surgeon, Alan R. Doerhoff, had been sued for malpractice more than 20 times and publicly reprimanded by the State Board of Healing Arts.

In April, the U.S. Supreme Court upheld the constitutionality of Kentucky's lethal injection protocol, opening the door for states to resume executions.

But challenges continued in Missouri, where a federal judge in Kansas City ruled that the Supreme Court's ruling in the Kentucky case did not address the concerns raised about the fitness of Missouri's execution team.
 

State v. Middleton, 995 S.W.2d 443 (Mo. 1999). (Direct Appeal-Pinegar Murder)

Defendant was convicted in the Circuit Court, Adair County, Bruce Normile, J., of first-degree murder and sentenced to death. Defendant appealed. The Supreme Court, Price, Jr., J., held that: (1) identification procedure did not render store clerk's identification of defendant as man to whom he sold ammunition unreliable, even if identification procedure was impermissibly suggestive; (2) witness's mental health records were not material to guilt or punishment, and thus, defendant was not entitled to review them; (3) affidavit in support of search warrant established that the information received from confidential informant was corroborated by facts previously discovered by police, and thus, warrant was justified by probable cause; (4) leather jacket was properly seized under the automobile exception to warrant requirement; (5) direct examination of defense psychiatric expert concerning defendant's truthfulness about methamphetamine use opened door to state's cross-examination concerning expert's opinion on defendant's truthfulness about murders; and (6) evidence that defendant's girlfriend had “a really big influence” over him was not sufficient to warrant instruction on statutory mitigating circumstance of extreme duress or substantial domination. Affirmed.

WILLIAM RAY PRICE, Jr., Judge.

A jury convicted John Middleton of first-degree murder for killing Alfred Pinegar. The jury recommended, and the trial court imposed, a death sentence. Middleton now appeals his conviction and sentence. This Court has exclusive jurisdiction over the appeal because Middleton was sentenced to death. Mo. Const. art. V, section 3. We affirm the judgment.

I. RELEVANT FACTS

John Middleton was a user and dealer of methamphetamine. On June 10, 1995, police arrested several people in Harrison County, Missouri, for possession and sale of the drug. Middleton was not one of the people arrested. About ten days after the Harrison County arrests, Middleton told a friend that “the snitches around here are going to start going down.” Middleton stated that he had a “hit list” and that Alfred Pinegar was on it. Two days after making these statements, Middleton told the same friend that he was “on his way to Ridgeway, Missouri, to take Alfred Pinegar fishing.”

Alfred Pinegar was also a dealer of methamphetamine and was associated with Middleton as a fellow drug dealer. Pinegar lived with his fiancé Priscilla Hobbs in Davis City, Iowa, just north of Harrison County, Missouri. On June 23, 1995, the day of Pinegar's murder, Hobbs was driving toward her home in Davis City when she saw Middleton and his girlfriend Maggie Hodges in a white Chevrolet 4x4 pickup traveling in the opposite direction. Hobbs noticed that Hodges was sitting in the middle of the truck seat instead of in the right passenger's seat. When Hobbs reached her home, Pinegar was not there and the yard had been partly mowed, as if Pinegar stopped in the middle of the job. Pinegar habitually carried a twelve-gauge shotgun, and that shotgun and about two hundred dollars were missing from the home.

Around noon that same day, Wesley Booth was working in the sporting goods department of a Wal–Mart store in Bethany, Missouri. He was approached by Hodges, Middleton, and another man, presumably Pinegar. Middleton asked Booth for six boxes of nine-millimeter shells and two boxes of twelve-gauge “double-ought” buckshot. Middleton paid cash for the ammunition. During the entire transaction Middleton was standing at the counter across from Booth. Middleton, Hodges, and Pinegar left Wal–Mart and drove several miles northeast of Bethany near the town of Ridgeway where they parked in a field. Pinegar got out of the truck and began to run when he saw Middleton raise the twelve-gauge shotgun. Middleton shot Pinegar twice in the back. Middleton then delivered the fatal wound to Pinegar, shooting him in the face. Middleton dumped Pinegar's body over a fence. After committing the murder, Middleton and Hodges went back to the Wal–Mart store in Bethany to return the nine-millimeter ammunition. They did not return the twelve-gauge “double-ought” shotgun shells. Booth walked with Middleton to the sporting goods department, where he exchanged the nine-millimeter shells for ammunition of another caliber. The two men then walked back to the service desk to complete the exchange.

Later that afternoon, Gerald Parkhurst saw Middleton and Hodges standing next to their pickup on the side of a road north of Bethany. Claiming their pickup had broken down, Hodges asked Parkhurst if he would give them a ride. When Parkhurst agreed to give them a ride, Hodges and Middleton transferred five or six firearms to the trunk of Parkhurst's car, including the twelve-gauge shotgun Middleton had used to kill Pinegar. Parkhurst took Hodges and Middleton to Spickard, Missouri, where they unloaded the weapons.

Two days after the murder, John Thomas visited Middleton at his home. Middleton and Thomas discussed possible undercover drug informants, and Middleton stated that “something had to be done about them.” Middleton also told Thomas that he had acquired Pinegar's twelve-gauge shotgun and that Pinegar “wouldn't be needing it no more.” Thomas drove Middleton to the place were the pickup truck had broken down, helped him remove a defective part, and then Middleton drove the truck away. The next day, on June 26, Pinegar's body was found. At the murder scene, police found a piece of leather fringe, an empty box of twelve-gauge shotgun shells, two expended twelve-gauge shells, a pair of sunglasses with a missing lens, and a small plastic clock with an adhesive square on the back of it.

Later, on September 11, while Middleton was in jail, Middleton told Stallsworth, a fellow inmate, that he killed Pinegar because he was afraid that Pinegar was going to “snitch” on him about his methamphetamine dealing. Middleton described the details of Pinegar's murder. He also told Stallsworth that some fringe was missing from his leather jacket and he was worried that it had been left at the murder scene.

Middleton was charged by information with first-degree murder and armed criminal action on October 18, 1995, in the Circuit Court of Harrison County. The prosecutor later voluntarily withdrew the charge of armed criminal action. Following a change of venue to the Circuit Court of Adair County, the case went to trial on February 24, 1997. Middleton did not testify at his trial and offered no evidence in his defense. The jury found him guilty of first-degree murder. In the punishment phase of the trial the state presented, among other things, evidence that Middleton had also murdered two others, Randy Hamilton and Stacey Hodge, as part of his plan to eliminate “snitches.” The jury recommended a death sentence.

II. STANDARDS OF REVIEW

We review the evidence presented at trial in the light most favorable to the verdict. State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995). The trial court is vested with broad discretion to admit and exclude evidence at trial. Error will be found only if this discretion was clearly abused. State v. Simmons, 955 S.W.2d 729, 737 (Mo. banc 1997), cert. denied, 522 U.S. 1129, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998).

On direct appeal we review the trial court “for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182; State v. Hutchison, 957 S.W.2d 757, 761 (Mo. banc 1997); State v. Skillicorn, 944 S.W.2d 877, 884 (Mo. banc 1997), cert. denied, 522 U.S. 999, 118 S.Ct. 568, 139 L.Ed.2d 407 (1997). Issues that were not preserved may be reviewed for plain error only, requiring the court to find that manifest injustice or miscarriage of justice has resulted from the trial court error. Simmons, 955 S.W.2d at 737.

III. ISSUES ON APPEAL

On appeal, Middleton alleges twenty-six issues of error. We address his claims as follows: Middleton claims the trial court erred by 1) admitting the identification testimony of Wesley Booth; 2) refusing to disclose the mental health records of state's witness Douglas Stallsworth; 3) allowing certain statements by the prosecutor during guilt-phase closing arguments; 4) admitting evidence seized during a search of Middleton's home pursuant to a search warrant; 5) admitting evidence seized in search of Middleton's vehicle without a search warrant; 6) allowing certain questions during cross-examination of defense witness Dr. Murphy; 7) denying a motion for a directed verdict of life in prison when a juror was excused after the guilt phase; 8) refusing to use Middleton's proposed penalty phase instruction adding one statutory mitigating circumstance; 9) striking two venirepersons for cause; 10) limiting questioning of prospective jurors; 11) (Middleton's points 11 & 12) admitting a crime scene video, a photograph of the victim's body, and fragments of the victim's jaw bone and teeth during the guilt phase; 12) (Middleton's point 13) admitting expert opinion testimony; 13) (Middleton's point 14) refusing to grant a second change of venue; 14) (Middleton's point 15) admitting penalty-phase evidence of a crime scene video of two other murders committed by Middleton; 15) (Middleton's points 16 & 17) admitting testimony of Pinegar's mother and a photograph of Pinegar and his daughter at the penalty phase; 16) (Middleton's point 18) refusing Middleton's proposed penalty phase instructions on mitigating circumstances; 17) (Middleton's point 21) refusing to grant a second continuance; 18) (Middleton's point 23) refusing to grant a motion to dismiss on the grounds that the definition of first-degree murder is unconstitutionally vague; 19) (Middleton's point 24) refusing to quash the venire panel because it did not include persons between the ages of 18 and 21; 20) (Middleton's point 25) refusing to grant Middleton's motion to dismiss on the grounds of improper prosecutorial discretion; and 21) (Middleton's point 26) admitting an improper reasonable doubt instruction.

Middleton further argues that: 1) (Middleton's point 22) he is entitled to a reversal of his conviction and sentence because the transcript of his trial contains defects and therefore hampers his ability to bring an effective appeal; 2) (Middleton's point 20) his death sentence must be set aside because Missouri's proportionality review under section 565.035.3(3) provides no meaningful review in violation of his due process rights; and 3) (Middleton's point 19) his death sentence must be set aside because it is disproportionate to the punishment imposed in similar cases. We first address the issues of alleged trial court error and then address Middleton's three additional challenges to his conviction and sentence.

A. ISSUES OF ALLEGED TRIAL COURT ERROR

1. Identification Testimony of Wesley Booth (Middleton's Point 1)

Middleton claims the trial court erred by overruling his motion to suppress the identification testimony of Wesley Booth. Middleton asserts that Booth's identification was the result of an improperly suggestive procedure. Identification testimony is admissible unless the pretrial identification procedure was unnecessarily suggestive and the suggestive procedure made the identification unreliable. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990); State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989). “The linchpin of due process in identification procedures is reliability, not suggestiveness.” State v. Weaver, 912 S.W.2d 499, 520 (Mo. banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).

In determining the reliability of a witness's identification, we consider 1) the opportunity of the witness to view the subject; 2) the witness's degree of attention; 3) the accuracy of any prior description given by the witness; 4) the level of certainty demonstrated by the witness in making the identification; and 5) the interval between the event and the identification procedure. State v. Littleton, 649 S.W.2d 225, 227 (Mo. banc 1983). Identification testimony is usually admissible because “courts rely upon the good sense and judgment of jurors for determining the trustworthiness of the identification.” Weaver, 912 S.W.2d at 521.

a. The Identification Procedure

Three days after the murder, police interviewed Booth about his encounters with Middleton at the Wal–Mart store in Bethany. Booth described Middleton as being slender and of medium height, with “sandy colored bushy straight hair.” He was shown fifteen to twenty photographs of men, including a photo of Middleton sitting in a chair. Booth picked out Middleton's photograph as resembling the man he had sold ammunition to, but he did not believe it was the right man because the hair of the man in the photograph looked shorter and he seemed slightly heavier.

About three months after the murder, Booth was subpoenaed to appear at Middleton's preliminary hearing. While at the courthouse, a prosecutor asked Booth to step into the hall to see if he could identify the man who had purchased ammunition from him on the day of the murder. According to Booth's testimony, approximately ten to fifteen people were in the hallway. Middleton was not then in the hallway; he arrived a few minutes later. When Middleton came into view, Booth immediately recognized him as the man who had bought the ammunition. Booth's testimony regarding his identification clearly demonstrates that he identified Middleton based on the recall of his first-hand observations of Middleton, not because of the influence of the identification procedure:

Q: Did [the prosecutors] have to tell you who to look at? A: No. Q: Why didn't they have to tell you who to look at? A: I recognized him. * * * Q: How was [Middleton] dressed? A: Had a short-sleeve shirt. I don't really remember exactly how he was dressed; I was looking at his face. * * * Q: [O]nce the prosecutors asked you ... to look in the hallway to see if you saw the person ... [d]id they give you any description about the person you were to look for in the hallway? A: No. Q: Did they tell you to look at the guy with handcuffs on? A: No. Q: When you saw this person, ... what was your first impression that made you recognize him? A: Again, the eyes, the hair, even though it was shorter, was the same color, it was the same kind of dry hair. Q: Do you recall if you made these observations before you saw the handcuffs? A: I don't know.

b. Reliability of the Identification

Assuming arguendo that the identification procedure was impermissibly suggestive, a conclusion we do not reach, we find the procedure itself did not render Booth's identification unreliable. Booth had ample opportunity to view Middleton when he waited on him at Wal–Mart. He stood directly opposite Middleton at the store counter while Middleton purchased the ammunition. Booth also saw Middleton a few hours later when he came back to Wal–Mart to return some unused ammunition. Booth's degree of attention was quite high because, as he testified, Middleton purchased an unusually high quantity of ammunition and the shotgun ammunition was rarely requested at that time of year. Further, Booth described the man he later identified as Middleton as slender and of medium height, with “sandy colored bushy straight hair.” A comparison of this description to the photograph of Middleton admitted at trial reveals that Booth's description of Middleton's size, build, and hair color and style was accurate.

Booth was certain about Middleton's identity, identifying him immediately upon seeing him in the courthouse hallway. His testimony established that the identification was reliable and not the result of the situation. Although three months had passed between the time Booth waited on Middleton at Wal–Mart and the time he identified Middleton in the courthouse hallway, longer intervals have been held not to render identifications unreliable. See, e.g., Littleton, 649 S.W.2d at 227 (four months); State v. Charles, 612 S.W.2d 778, 780 (Mo. banc 1981), cert. denied, 454 U.S. 972, 102 S.Ct. 522, 70 L.Ed.2d 392 (1981) (eight months). Even though Booth could not conclusively identify Middleton from the photograph police showed him after the murder, he did indicate that the photo resembled Middleton. The fact that Booth could not conclusively identify Middleton from a photograph does not necessarily diminish the reliability of his identification of Middleton upon actually seeing him. A photograph and a face to face meeting are two different things. The trial court did not err by overruling Middleton's motion to suppress the identification testimony. Point 1 is denied.

2. Mental Health Records of Douglas Stallsworth (Middleton's Point 2)

Middleton claims the trial court erred by denying his request to review the mental health records of Douglas Stallsworth. A pretrial hearing was held to determine whether Stallsworth was mentally competent to testify. The state presented the testimony of two psychiatrists who stated that Stallsworth was competent to testify. The court found him competent, and he testified at trial. Before trial, Middleton requested disclosure of all mental health records concerning Stallsworth.

The state must disclose evidence favorable to the accused when the evidence is material to guilt or to punishment. Rule 25.03(5). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” State v. Shafer, 969 S.W.2d 719, 740–41 (Mo. banc 1998) cert. denied, 525 U.S. 969, 119 S.Ct. 419, 142 L.Ed.2d 340 (1998). The trial judge conducted an in camera review of the department of mental health's records and determined that these records need not be produced. This Court also has reviewed the department of mental health's records. The trial court did not err by refusing to order the disclosure of Stallsworth's mental health records. Nor was Middleton prejudiced by the failure to have access to these records. Point 2 is denied.

3. Prosecutor's Guilt–Phase Closing Argument (Middleton's Point 3)

Middleton claims the trial court erred by overruling two objections made during the state's guilt-phase closing argument. The court did overrule one of Middleton's objections. However, in response to the other objection the court asked the jury to recall the evidence. Middleton did not object to the court's remedy to this second objection; we, therefore, review his appeal on this issue under plain error. Middleton also appears to argue in this appeal that the entire closing argument was inappropriate. All three issues arise from inferences the State argued from the evidence admitted at trial.

Both the state and the defense are entitled to argue reasonable inferences from the evidence. State v. Kenley, 952 S.W.2d 250, 272 (Mo. banc 1997), cert. denied, 522 U.S. 1095, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998); State v. Barton, 936 S.W.2d 781, 783 (Mo. banc 1996). A trial court maintains broad discretion in the control of closing arguments. Barton, 936 S.W.2d at 783. An argument does not require reversal unless it amounted to prejudicial error. State v. Johnston, 957 S.W.2d 734, 750 (Mo. banc 1997); see, e.g., Shurn v. Delo, 177 F.3d 662 (8th Cir.1999).

a. Preserved Claim of Improper Closing Argument

At trial, defense counsel objected to two statements made by the prosecutor during the guilt-phase closing argument. The first relates to the prosecutor's suggestion that Pinegar was in Middleton's pickup truck when Middleton drove past Pinegar's fiancé Priscilla Hobbs: Prissy is heading home and she comes across this white 4x4 only a mile away leaving the area of her residence, and John Middleton is ... driving and there is someone in the middle seat. Al Pinegar is leaning down on the passenger side. Middleton's counsel objected that there was no evidence that Pinegar was in the truck. The trial judge overruled the objection. The statement is a reasonable inference from the evidence. Based on the evidence at trial, Pinegar could have been transported from his home in Davis City, Iowa, to the site of his murder near Ridgeway, Missouri, in Middleton's truck. A further reasonable inference could be that Pinegar was ducking down in the truck to hide from his fiancé Hobbs, because Hobbs had told Pinegar that he would have to choose between family and drugs and she associated Middleton with drugs. Further, Hodges was in the truck sitting in the center, not on the passenger's side. This allows an inference that she was making room for Pinegar. The trial court did not err.

b. Unpreserved Claim of Improper Closing Argument

The second statement that was the subject of a defense objection concerns the fact that Pinegar was shot once with “number five” shotgun pellets and twice with “double-ought” shotgun pellets: [Pinegar is] running and the defendant gets out of the vehicle, and he shoots [Pinegar] in the back with a shot gun .... it's a transiential wound to the upper right shoulder, it's the bird shot, the number five—the ammunition that Al previously had in his gun. Middleton objected and the trial judge asked the jury to recall the evidence on this issue. Middleton did not object to the trial court's remedy; we, therefore, review this statement under plain error . Rule 30.20. “ ‘[R]elief should be rarely granted on assertion of plain error to matters contained in closing argument, for trial strategy looms as an important consideration and such assertions are generally denied without explication.’ ” State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999) (quoting State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986)) (emphasis in original). Under plain error review, a conviction will be reversed for improper arguments only when it is established that the argument had a decisive effect on the outcome of trial and amounts to manifest injustice. State v. Lyons, 951 S.W.2d 584, 596 (Mo. banc 1997), cert. denied, 522 U.S. 1130, 118 S.Ct. 1082, 140 L.Ed.2d 140 (1998). The evidence indicated that Pinegar's shotgun was the murder weapon. Also in evidence was the fact that Pinegar brought his shotgun with him everywhere he went. The jury could infer that the gun was already loaded and that Middleton first fired the gun before reloading with the “double ought” shot he had purchased from Booth. Even if the argument was an unreasonable inference, it did not create a manifest injustice to Middleton's defense. The trial court did not err.

c. Unpreserved Claim As to the Entire Argument

In his brief on appeal, Middleton quotes lengthy excerpts from the closing argument and appears to argue that the entire closing argument was improper. The remaining statements of the state's closing argument are reviewed under plain error review since no objection was made at trial nor were the issues preserved in any other manner. The closing argument did not contain unreasonable inferences based on the facts at trial and did not cause any manifest injustice to Middleton. See, e.g., State v. Carter, 955 S.W.2d 548, 558 (Mo. banc 1997); State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998). Point 3 is denied.

4. Evidence Seized by Search Warrant (Middleton's Point 4)

Middleton asserts that the trial judge erred by refusing to suppress evidence seized at Middleton's residence through a search warrant. The evidence Middleton sought to suppress included a leather jacket, a broken sunglass lens, a bill of sale for a pickup truck, and a list of local law enforcement officers and their radio frequencies. Middleton challenges the existence of probable cause to support the warrant and the validity of seizures of property made pursuant to the warrant.

a. Validity of the Search Warrant

Middleton argues that the affidavit supporting the warrant contains information received from a “confidential informant” who was not independently verified as a reliable source and, therefore, information provided by that informant should have been disregarded when considering whether probable cause existed to issue the warrant. This Court gives “great deference on review to the initial judicial determination of probable cause made at the time of the issuance of the warrant, and we reverse only if that determination is clearly erroneous.” State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). The presence or absence of probable cause is determined by reviewing the affidavit in support of the application for the warrant. State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990). “[T]he veracity and basis of knowledge of informants need no longer be established, ... the judge issuing the warrant ‘is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Laws, 801 S.W.2d at 69. “[P]ersonal knowledge of the informant corroborated through other sources is enough to establish probable cause.' ” Berry, 801 S.W.2d at 66.

The affidavit presented to the court established that the information received from the confidential informant was extensively corroborated by facts previously discovered by the police during the murder investigation. For example, the informant's statement that he saw Pinegar's shotgun, a twelve-gauge Mossberg with a pistol grip, at Middleton's residence matched the description of the shotgun given to police by Pinegar's fiancé. The informant's description of the white pickup truck parked at Middleton's residence matched the description of the truck Pinegar's fiancé saw Middleton driving on the day Pinegar disappeared. Additionally, the informant's report that Middleton's girlfriend was named “Maggie” was consistent with the fact that the woman Booth waited on at Wal–Mart signed the name “Maggie States” on the return form. Middleton's statement, recounted by the informant, that his pickup broke down “near Ridgeway” was consistent with the fact that Pinegar's body was discovered near Ridgeway. Probable cause existed to justify the issuance of a search warrant.

b. Validity of Seizures Made Pursuant to the Warrant

Middleton claims the seizures of the sunglass lens, leather jacket, bill of sale, and list of officer frequencies were the result of a search that exceeded the scope of the warrant. The warrant directed the officers to search Middleton's residence. It listed the items subject to seizure as “one box 12 gauge pump shotgun with pistol grip; one box of Federal Premium shotgun shells ... four Federal Premium 12 ga., 00 buck shotgun shells; methamphetamine; and marijuana.” While walking up the driveway leading to Middelton's house, an officer found and seized a broken sunglass lens that was lying on the ground. This officer knew that a broken pair of sunglasses had been found at the murder scene. In the yard outside the house was a light blue Ford LTD. Officers saw through the window of the LTD a brown leather jacket that matched a piece of brown leather discovered at the murder scene. The officers seized the jacket. Inside Middleton's house, officers found a bill of sale for the white pickup truck and a list of officer's names and their radio frequencies. “[A]n officer who is lawfully located in a place from which the object can plainly be seen may seize the object so long as there is probable cause to believe that the object is connected to the crime.” State v. Johnston, 957 S.W.2d 734, 742 (Mo. banc 1997), cert. denied, 522 U.S. 1150, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998). The bill of sale, list of officer frequencies, and sunglass lens were properly seized pursuant to the search warrant.

Under the automobile exception to the warrant requirement, police may search a vehicle and seize contraband found if there is probable cause to believe that the vehicle contains contraband and exigent circumstances necessitate the search. State v. Lane, 937 S.W.2d 721, 722 (Mo. banc 1997); State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). “As a practical matter, exigent circumstances exist whenever an automobile is involved; the mere possibility that the vehicle can be moved is generally sufficient justification for a warrantless search.” Milliorn, 794 S.W.2d at 183 (citing Cady v. Dombrowski, 413 U.S. 433, 441–42, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). The leather jacket was properly seized under the automobile exception to the warrant requirement. The trial court did not err by overruling Middleton's motion to suppress this evidence. Point 4 is denied.

5. Evidence Seized without a Search Warrant (Middleton's Point 5)

While the search of Middleton's house was in progress, one of the officers walked to a field across the road from the house. He found a white pickup truck that matched the description of a vehicle described in the warrant affidavit. The truck was stuck in mud, and the officer noticed signs that someone had been trying to get it out of the mud. The officer looked into the window of the truck and saw a small square of adhesive on the dashboard that appeared to match the adhesive on the back of a small plastic clock that had been discovered at the murder scene. The officer opened the door of the truck and removed a piece of the dashboard containing the adhesive square. Middleton claims that the adhesive square should not have been admitted into evidence because it was unlawful for the officer to open the door and remove the adhesive square without obtaining a warrant. Again, the automobile exception to the warrant requirement allows an officer to search a vehicle and seize contraband when probable cause exists. Lane, 937 S.W.2d at 722. The fact that this vehicle was stuck in mud does not render the exception inapplicable. The searching officer testified that it was apparent that someone had been in the process of trying to remove the vehicle from the mud. The truck was parked in an open field and was vulnerable to any person who chose to enter it and remove possible evidence. Under these circumstances, the seizure of the adhesive square was proper. Point 5 is denied.

6. State's Cross–Examination of Dr. Murphy (Middleton's Point 6)

During the penalty phase Middleton called Dr. Murphy, who testified that Middleton's mental responsibility for Pinegar's murder and for the murders of Randy Hamilton and Stacey Hodge was reduced as a result of methamphetamine use. In reaching this conclusion, Dr. Murphy substantially relied on statements given to him by Middleton. During direct examination, Dr. Murphy testified that he believed that Middleton had been truthful in many of his responses: Q: ... how do we know that when Mr. Middleton, or anybody else for that matter, is answering those questions that they are answering truthfully? A: You really don't know.... In all of the tests there was no indication that Mr. Middleton was trying to fake anything. * * * Q: ... In all the tests you did with Mr. Middleton, did you see any signs of malingering, or faking bad, or not being motivated to do well? A: Right. None of that.

On cross-examination, the state sought to impeach Dr. Murphy's conclusion that Middleton had been truthful with him. Q: And throughout the course of your evaluating [Middleton], the credibility of what the defendant is telling you and whether or not he is malingering, did you also evaluate the credibility of his denial of these three murders? A: I certainly did. * * * Q: Doctor, when the defendant denied to you having murdered Alfred Pinegar, did you believe that he was being truthful with you at the time? A: No, I did not. Q: When the defendant denied killing Randy Hamilton, did you believe he was being truthful at that time? A: No. Q: When the defendant denied killing Stacey Hodge, did you believe the defendant was being truthful with you at that time? A: No. Middleton claims the trial court erred by overruling his objection to the state's questions.FN1 FN1. In the Table of Contents section of Middleton's brief, he states that the trial court erred by overruling his objections to the questioning of Dr. Jonathan Lipman. However, in the argument portion of his brief Middleton makes no mention of Dr. Lipman.

“Generally, expert testimony is inadmissible if it relates to the credibility of witnesses because this constitutes an invasion of the province of the jury.” State v. Whitmill, 780 S.W.2d 45, 47 (Mo. banc 1989). However, Dr. Murphy was not asked to give his opinion about Middleton's credibility as a witness. Middleton did not testify at his trial. Dr. Murphy was asked for his evaluation of the truthfulness of Middleton's statements made to him during psychiatric testing. “Wide latitude is afforded the cross-examination of witnesses to test qualifications, credibility, skill or knowledge, and the value and accuracy of the expert's opinion.” State v. Brooks, 960 S.W.2d 479, 493 (Mo. banc 1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1998). This is especially true in the cross-examination of mental health experts, because “the factual basis for psychiatric testimony is particularly important.” State v. Parker, 886 S.W.2d 908, 927 (Mo. banc 1994), cert. denied 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995). Moreover, having opened the door by asking Dr. Murphy his opinion about Middleton's truthfulness concerning methamphetamine use, Middleton cannot now complain about the state's cross-examination of Dr. Murphy about his opinion as to Middleton's truthfulness concerning whether he murdered Pinegar, Hodge, and Hamilton. See State v. Barnett, 980 S.W.2d 297, 307 (Mo. banc 1998). The trial court did not err by overruling Middleton's objections to the State's questioning of Dr. Murphy. Point 6 is denied.

7. Request of Directed Sentence of Life Without Parole (Middleton's Point 7)

Middleton claims the trial court erred by overruling his motion for a directed sentence of life without parole when a juror was excused during the penalty phase. During the presentation of evidence in the penalty phase, Juror Gray asked to be excused because of family difficulties. Gray was replaced by an alternate juror who had been sequestered throughout the trial. In State v. Johnson, 968 S.W.2d 123, 132 (Mo. banc 1998), this Court approved the replacement of a juror with an alternate in the penalty phase. We found that section 494.485, RSMo 1994, allows such a substitution. Section 565.030.2, which requires that a first-degree murder defendant receive a guilt phase and a penalty phase “before the same trier,” does not prohibit the use of an alternate juror before deliberations begin. Johnson, 968 S.W.2d at 132 (“The only statutory exception to the use of alternate jurors applies when deliberations have already begun.”). The trial court did not err by overruling Middleton's motion for a directed sentence. Point 7 is denied.

8. Proposed Jury Instruction 17B (Middleton's Point 8)

Middleton argues that the trial court erred by rejecting his proposed penalty phase Instruction 17B. Middleton's Instruction 17B contained one statutory mitigating circumstance that was not submitted to the jury in Instruction 17. That circumstance was “[w]hether John Middleton acted under extreme duress or under substantial domination of another person.” Middleton put on evidence that his girlfriend Hodges had “a really big influence” over him. This evidence, however, is not sufficient to establish that Middleton acted under “extreme duress” or “substantial domination” in trying to cause Middleton to kill Pinegar . See State v. Clemons, 946 S.W.2d 206, 222 (Mo. banc 1997); State v. Copeland, 928 S.W.2d 828, 853–54 (Mo. banc 1996). The trial court did not err by rejecting Middleton's Instruction 17B. Point 8 is denied.

9. Venirepersons Stricken for Cause (Middleton's Point 9)

Middleton alleges that the trial court erred by sustaining the state's challenge for cause to venirepersons Vineyard and Schnirch. Venirepersons may be excluded from the jury when their views would prevent or substantially impair their ability to perform their duties as jurors in accordance with the court's instructions and their oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); State v. Rousan, 961 S.W.2d 831, 839 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). A juror may be stricken for cause if it appears that he or she “cannot consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a first degree murder case.” Rousan, 961 S.W.2d at 839; State v. Debler, 856 S.W.2d 641, 645–46 (Mo. banc 1993).

“The qualifications of a prospective juror are not determined conclusively by a single response, ‘but are made on the basis of the entire examination.’ ” State v. Kreutzer, 928 S.W.2d 854, 866 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997) (quoting State v. Brown, 902 S.W.2d 278, 285 (Mo. banc 1995), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995)). The trial court is in the best position to evaluate a venireperson's commitment to follow the law and is vested with broad discretion in determining the qualifications of prospective jurors. Rousan, 961 S.W.2d at 839; Kreutzer, 928 S.W.2d at 866. A trial court's “ruling on a challenge for cause will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion.” Kreutzer, 928 S.W.2d at 866.

a. Venireperson Vineyard

During voir dire by both the state and the defense, Vineyard testified that he could not follow the law requiring that the state prove guilt and statutory aggravating circumstances beyond a reasonable doubt. Instead, he stated that he would require proof beyond all doubt. In response to the state's question about aggravating circumstances, Vineyard said: “I'm not so sure there doesn't have to be extra weight besides reasonable doubt of an aggravating circumstance for me to live with that—that I in my mind killed a man.... I have to be absolutely sure, not just beyond a reasonable doubt.” In answer to the defense's question of whether he could follow the judge's instructions on the burden of proof in deciding Middleton's guilt, Vineyard answered: “I don't think so. I think I've got to have something beyond that.... I don't think I could give somebody the death penalty unless I was absolutely sure.” The record supports the trial court's ruling. Vineyard's statements provided a basis for the trial court to conclude that Vineyard's views on the burden of proof would substantially impair his ability to follow the court's instructions. See Rousan, 961 S.W.2d at 839–40.

b. Venireperson Schnirch

During the state's voir dire, Schnirch expressed her agreement with another venireperson who had said she was unable to impose the death sentence. When examined by the defense, Schnirch said: “It would be very difficult for me to consider, I guess, the death penalty, if I was one of those who had to determine that. I could go through the guilt or innocence phase, and that would be very difficult for me. That's about as good as I can do.” The record supports the trial court's ruling. “A juror's equivocation about his ability to follow the law in a capital case together with an unequivocal statement that he could not sign a verdict of death can provide a basis for the trial court to exclude the venireperson from the jury.” Rousan, 961 S.W.2d at 840; see also State v. Smith, 944 S.W.2d 901, 914 (Mo. banc 1997), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997). The trial court did not abuse its discretion by striking venireperson Schnirch for cause. Point 9 is denied.

10. Questioning of Prospective Jurors (Middleton's Point 10)

Middleton argues that the trial court erred by sustaining the state's objections to defense voir dire questions about the feelings and opinions of certain venirepersons on various issues of law. “A trial court's ruling on whether to allow a voir dire question will be reversed only for an abuse of discretion.” State v. Hall, 955 S.W.2d 198, 203 (Mo. banc 1997), cert. denied, 523 U.S. 1053, 118 S.Ct. 1375, 140 L.Ed.2d 523 (1998). In order to demonstrate an abuse of discretion in the conduct of voir dire, the complaining party must show a real probability of prejudice. Kreutzer, 928 S.W.2d at 861. “It is permissible for a court to prohibit broad questioning about how a juror thinks or feels.” State v. Chaney, 967 S.W.2d 47, 57 (Mo. banc 1998). Errors in the limitation of voir dire questions are cured if the questions were not directed to a prospective juror who actually sat on the jury. State v. Skillicorn, 944 S.W.2d 877, 893 (Mo. banc 1997). During the voir dire, the court sustained the state's objections to questions asked of Venireperson Gray and Venireperson Bailey, who both ultimately served as jurors. First, Venireperson Maloney stated that he believed the criminal justice system could be manipulated. Counsel then asked Venireperson Gray whether he had “any feelings like Mr. Maloney about the court system and the criminal justice system,” and whether there are “particular instances that [he] feel[s] like the death penalty should be the punishment.” Counsel also asked Venireperson Bailey, “Are you someone who feels that the death penalty is a just punishment?” and “Have your opinions about the death penalty changed over the years?”

These questions were open-ended and were not relevant to the question of whether a venireperson can serve as a fair and impartial juror. They focused upon the venirepersons' “feelings.” “The relevant inquiry [during voir dire] is whether a prospective juror can follow the law.” Chaney, 967 S.W.2d at 57. We decline Middleton's invitation to reexamine Kreutzer, 928 S.W.2d at 864, which controls this issue. The trial court did not abuse its discretion by sustaining the state's objections to these questions. Point 10 is denied.

11. Evidence Admitted at Guilt Phase (Middleton's Points 11 & 12)

Middleton complains that the trial court erred by overruling his objection to the admission of a videotape of the crime scene, a photograph of Pinegar's partially decomposed body, and fragments of teeth and jaw bone found next to Pinegar's body. Middleton claims the evidence was highly prejudicial and only marginally probative. The trial court is vested with broad discretion in determining the admissibility of photographs and other evidence. State v. Hampton, 959 S.W.2d 444, 453 (Mo. banc 1997); State v. Murray, 744 S.W.2d 762, 772 (Mo. banc 1988) cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988). “Photographs, although gruesome, may be admitted where they show the nature and location of wounds, where they enable the jury to better understand the testimony, and where they aid in establishing any element of the state's case.” Murray, 744 S.W.2d at 772; see also State v. Ervin, 979 S.W.2d 149, 161 (Mo. banc 1998). A photograph is admissible if it accurately depicts the crime scene, including issues of identity and condition and location of the body. State v. Schneider, 736 S.W.2d 392, 403 (Mo. banc 1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988). The same considerations pertain to video evidence. Skillicorn, 944 S.W.2d at 886. Jaw bone and teeth fragments are admissible to establish that the victim was shot in the face. See State v. Davis, 814 S.W.2d 593, 597 (Mo. banc 1991), cert. denied, 502 U.S. 1047, 112 S.Ct. 911, 116 L.Ed.2d 812 (1992).

The crime scene video demonstrated the position of Pinegar's body, which was lying next to a fence with one arm pointing away from the fence. This position corroborated the testimony of Douglas Stallsworth that Middleton told him he had shot Pinegar and thrown his body over a fence. The police officer used the photograph of Pinegar's body to describe to the jury the injuries he observed on Pinegar's body at the time he discovered it. Testimony that Pinegar died of a gunshot wound to the face and the presence and location of the teeth and bone were used by the state in closing argument to offer a reasonable inference that Pinegar had been lying helpless when he was shot. The crime scene was in a field of very tall grass, and the teeth and bone could not be seen from the photograph or video of the crime scene. While it is true that the evidence was grisly, “[d]efendants may not so easily escape the brutality of their own actions; gruesome crimes produce gruesome, yet probative, photographs.” State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). The trial court did not abuse its discretion by overruling Middleton's objections to the evidence. Middleton's Points 11 & 12 are denied.

12. Expert Opinion Testimony (Middleton's Point 13)

Middleton claims that the state's expert witness Kathleen Green, a trace evidence specialist, should not have been allowed to testify about certain physical evidence. Green's testimony concerned “physical match identification,” which involves a microscopic visual examination of pieces of evidence. Green testified that a strip of brown leather fringe found at the crime scene could possibly have come from a jacket found at Middleton's residence. She also testified that a broken pair of sunglasses found at the crime scene could possibly match a sunglass lens found at Middleton's residence. She further testified that adhesive on a plastic dashboard clock at the murder seen matched a square of adhesive found in Middleton's pickup truck. Middleton does not challenge Green's expertise or any foundational matter, see for example, Frye v. United States, 293 F. 1013 (1923); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), but simply that this was an inappropriate subject matter for expert testimony. Expert testimony is admissible unless the subject of that testimony is “within the realm of the jury's common experience.” Skillicorn, 944 S.W.2d at 892. Green's testimony involved her expert opinion as a criminalist employed by the forensic laboratory of the Missouri State Highway Patrol regarding technical matters that exceed the experience of jurors. The trial court did not err by admitting Green's testimony. Middleton's Point 13 is denied.

13. Motion for a Second Change of Venue (Middleton's Point 14)

Middleton contends that the trial court erred by denying his motion for a second change of venue prior to trial. He argues that an article published in a local newspaper prior to trial created a substantial risk that the jury could not be impartial. Rule 32.04(a)(1) provides that a change of venue may be ordered in a criminal jury trial if the inhabitants of the county in which the trial is to take place are prejudiced against the defendant. “The decision to grant or deny a change of venue for cause is a matter of trial court discretion, and its ruling will not be reversed absent an abuse of discretion.... A trial court abuses its discretion when the record shows that the inhabitants of the county are so prejudiced against the defendant that a fair trial cannot occur there.” State v. Kinder, 942 S.W.2d 313, 323 (Mo. banc 1996), cert. denied, 522 U.S. 854, 118 S.Ct. 149, 139 L.Ed.2d 95 (1997). “In assessing the impact of potentially prejudicial publicity on prospective jurors, the critical question is not whether they remember the case, but whether they have such fixed opinions regarding the case that they could not impartially determine the guilt or innocence of the defendant.” State v. Barton, 1999 WL 562151 (Mo. banc 1999) (No. 80931).

The record reflects that each venireperson who had heard of the case in the media was carefully questioned. Five venirepersons were removed for cause because their answers reflected that they had formed an opinion about Middleton's guilt because of their exposure to the media reports. Middleton has not established that any specific juror had fixed opinions about his guilt and threatened his right to a fair trial or that he was prejudiced in any identifiable way in the jury selection process. See Kinder, 942 S.W.2d at 323–24. Pretrial publicity, alone, does not require a change of venue. The trial court did not abuse its discretion by denying Middleton a second change of venue. Middleton's Point 14 is denied.

Penalty Phase Evidence of Other Crimes (Middleton's Point 15)

Middleton claims the trial court erred by admitting a videotape of the crime scene where the bodies of Stacey Hodge and Randy Hamilton were found and a photograph of Stacy Hodge's body. He asserts that because this evidence was offered in connection with a collateral crime, its prejudicial effect outweighed its probative value. In the penalty phase of a capital trial, the character and history of the defendant, including prior crimes committed by that defendant, are admissible as relevant to the sentencing. State v. Nicklasson, 967 S.W.2d 596, 618 (Mo. banc 1998); State v. Chambers, 891 S.W.2d 93, 106–07 (Mo. banc 1994). Middleton had not yet been convicted for the murders of Hamilton and Hodge at the time of the penalty phase of this trial. The sole account of their murders came from the testimony of Stallsworth. Stallsworth testified that Middleton had told him that he killed Hamilton and Hodge. He recounted Middleton's detailing of how he shot the victims and then placed their bodies in the trunk of a car. The videotape showing the discovery of the two bodies and the photographs used by Dr. Jay Dix to describe the victims' wounds corroborated Stallsworth's testimony. The evidence in question was used to help the jury to understand the prior acts of Middleton for the purpose of determining his punishment for the murder of Pinegar. See Parker, 886 S.W.2d at 924; State v. Leisure, 749 S.W.2d 366, 378–379 (Mo. banc 1988). The trial court did not abuse its discretion by admitting this evidence. Middleton's Point 15 is denied.

15. Penalty Phase Evidence of Pinegar's Family (Middleton's Points 16 & 17)

Middleton complains that the testimony of Pinegar's mother and the introduction of a photograph of Pinegar and his daughter during the penalty phase were so prejudicial that they caused the jury to sentence Middleton to death on the basis of passion rather than reason. There is no categorical prohibition on the presentation of victim impact testimony in capital cases. Payne v. Tennessee, 501 U.S. 808, 824, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Only when the victim impact evidence “is so unduly prejudicial that it renders the trial fundamentally unfair,” does the Due Process Clause mandate relief. Payne, 501 U.S. at 824, 111 S.Ct. 2597. Middleton's counsel did not object to the testimony of Pinegar's mother at trial, and we review that claim for manifest injustice. Middleton's counsel did object to the photograph of Pinegar and his daughter, and we review that claim for prejudicial error. Pinegar's mother testified that Pinegar's death left a very big hole in her heart. She showed the jury a photograph of Pinegar with his daughter. She then began to weep and was escorted from the courtroom. She was not recalled for questioning by either party. The testimony of Pinegar's mother was not inflammatory and did not cause manifest injustice to Middleton. See Simmons, 955 S.W.2d at 741; Roberts, 948 S.W.2d at 604.

We have considered Middleton's motion for production of the photograph of Pinegar and his daughter. In his motion Middleton claims that this Court cannot properly render an opinion on this point without viewing the photograph. The briefs on appeal provide a description of the photograph. Middleton describes the photograph as a picture “of Pinegar with his young daughter.” This Court need not look at the actual photograph to determine whether it was unduly inflammatory. Victim-impact testimony offered at Middleton's penalty phase consisted only of that photograph and brief testimony by his mother. Far more extensive and graphic victim-impact testimony has been found not to be so unduly prejudicial that it renders the trial fundamentally unfair. The trial court did not err by admitting the photograph. See State v. Basile, 942 S.W.2d 342, 358 (Mo. banc 1997), cert. denied, 522 U.S. 883, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). Middleton's Points 16 & 17 are denied.

16. Proposed Penalty Phase Instructions (Middleton's Point 18)

Middleton claims the trial court erred by refusing his requested penalty phase instructions A, B, C, D, and E. These instructions attempted to provide general guidance to the jury in its consideration of mitigating factors. He asserts that only these instructions would have ensured that the jury was given the opportunity to give full consideration to mitigating evidence. This Court has repeatedly rejected claims like Middleton's. See Rousan, 961 S.W.2d at 849; Roberts, 948 S.W.2d at 603–04; Chambers, 891 S.W.2d at 109. The jury was given approved instruction MAI–CR 3d 313.44A, which included all of the statutory mitigating circumstances to which Middleton was entitled. The instruction also included a catch-all paragraph stating “[y]ou should also consider any other facts or circumstances which you find from the evidence in mitigation of punishment.” The trial court did not err by refusing Middleton's instructions A, B, C, D, and E. See State v. Copeland, 928 S.W.2d 828, 854 (Mo. banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997). Middleton's Point 18 is denied.

17. Request for an Additional Continuance (Middleton's Point 21)

Middleton claims the trial court erred by denying his repeated requests for a second continuance on the grounds that his counsel had inadequate time to prepare. The decision to grant or deny a continuance is within the sound discretion of the trial court. State v. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992). To receive relief on this issue Middleton must present “a very strong showing of abuse and prejudice.” State v. Taylor, 944 S.W.2d 925, 930 (Mo. banc 1997). Inadequate preparation does not justify a continuance where counsel had ample opportunity to prepare. Taylor, 944 S.W.2d at 930. Middleton's case went to trial about one year and four months after the information was filed against him. His counsel received one six-month continuance in which trial was rescheduled from October 7, 1996 to February 24, 1997. Three attorneys represented Middleton. One of those attorneys began to represent him the day after the information had been filed against him. The second attorney entered the case approximately eight months before trial, and the third attorney approximately five months before trial. This is not a case where the state failed to disclose key evidence to the defense until the morning of trial such as in the cases cited by Middleton. See State v. Whitfield, 837 S.W.2d 503, 506–08 (Mo. banc 1992); State v. Childers, 852 S.W.2d 390, 391–92 (Mo.App.1993).

Although the state endorsed twenty-three witnesses only three weeks prior to trial, many of these were simply “chain-of-custody” witnesses verifying the proper handling of physical evidence. Others had already been deposed by the defense or had testified in pretrial proceedings. Still others had previously been endorsed by the state or the defense or their identities were revealed in police reports. Middleton has not established that the trial court erred or that he was prejudiced by the trial court's denial of his continuance request. Middleton's Point 21 is denied.

18. Definition of First–Degree Murder (Middleton's Point 23)

Middleton claims the trial court erred by overruling his motion to dismiss the charge of first-degree murder. Middleton asserts that he received constitutionally inadequate notice that his actions constituted first-degree murder because there is no meaningful distinction between the mental state required for first-degree murder and that required for second-degree murder either in the statutory definitions contained in sections 565.020.1 and 562.016.3 or in this Court's decisions. This Court dealt with this same issue in Rousan, where we held that “the statutory language of chapter 565 and this Court's decisions clearly distinguish first from second degree murder.” Rousan, 961 S.W.2d at 851–52. Middleton's Point 23 is denied.

19. Age of Jurors (Middleton's Point 24)

Middleton claims the trial court erred by overruling his motion to quash the petit jury panel. He argues that section 494.425's exclusion of people between the ages of 18 and 21 from the jury panel deprived him of a jury of his peers. This Court has consistently upheld the validity of this statute. See, e.g., State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992); State ex. rel. McNary v. Stussie, 518 S.W.2d 630, 637 (Mo. banc 1974). This is because “it is highly speculative that the outlook of the allegedly excluded persons would be different from those a few years older.” Blankenship, 830 S.W.2d at 16. Middleton's Point 24 is denied.

20. Prosecutorial Discretion to Seek the Death Penalty (Middleton's Point 25)

Middleton argues that the trial court erred by overruling his motion to dismiss the information against him. He claims that prosecutorial discretion to choose whether to seek the death penalty resulted in an arbitrary and capricious imposition of the death sentence in this case. The existence of prosecutorial discretion in seeking the death penalty did not render capital punishment unconstitutional in this case. Carter, 955 S.W.2d at 562; Smith, 944 S.W.2d at 923; Simmons, 944 S.W.2d at 190–91. Middleton's Point 25 is denied.

21. Reasonable Doubt Instruction (Middleton's Point 26)

Middleton complains that the trial court erred by refusing to modify the reasonable doubt jury instruction. He claims that the instruction given to the jury regarding reasonable doubt lessened the state's burden of proof. The trial court gave approved jury instructions MAI–CR3d 300.02 and 302.04. The appropriateness of these instructions has been upheld by this Court. Johnson, 968 S.W.2d at 133; State v. Owsley, 959 S.W.2d 789, 796 (Mo. banc 1997). Middleton's Point 26 is denied.

B. OTHER ISSUES ON APPEAL

1. Alleged Defects in the Trial Transcript (Middleton's Point 22)

Middleton asserts that he is entitled to a reversal of his conviction and sentence because the transcript of his trial contains defects and is incomplete. An appealing party is entitled to a full and complete transcript for the appellate court's review. However, a record that is incomplete or inaccurate does not automatically warrant a reversal of the appellant's conviction. Jackson v. State, 514 S.W.2d 532, 533 (Mo.1974). Middleton is entitled to relief on this point only if he exercised due diligence to correct the deficiency in the record and he was prejudiced by the incompleteness of the record. State v. Borden, 605 S.W.2d 88, 92 (Mo. banc 1980).

a. Due Diligence

Rule 30.04(h) allows an appellant to request a stipulation of the parties or an order by the appellate court to supplement the file in order to cure omissions. “Nothing suggests an attempt [by Middleton] to obtain by stipulation or motion the substance of the missing testimony.” Borden, 605 S.W.2d at 92.

b. Prejudice

Further, Middleton failed to establish that the alleged trial record omissions or inaccuracies prejudice his appeal. See State v. Dunn, 817 S.W.2d 241, 244 (Mo. banc 1991), cert. denied, 503 U.S. 992, 112 S.Ct. 1689, 118 L.Ed.2d 403 (1992); Borden, 605 S.W.2d at 92. Middleton's trial lasted three weeks and his transcript is nearly four thousand pages long. Middleton cites thirty-four instances of omission in the transcript. During the pretrial proceedings and the trial, participants made statements that were inaudible to the court reporter. Often, the court reporter immediately stopped the proceedings and asked for a clarification for the record. We will not address every omission cited by Middleton as many of them were corrected by the court reporter at the time of trial and even more of them are trivial and clearly immaterial to his appeal. In a few instances, during voir dire and pretrial proceedings, the reporter did not request clarification and no correction was made. One incident involved questioning of a venireperson who sat on the jury. Three incidents involved trial testimony. An examination of those instances reveals that they did not prejudice Middleton's appeal.

Venireperson Anielak was questioned about his relationship with his brother, who is a lawyer. Anielak testified that his brother practices corporate law and that he has never discussed criminal law with his brother. He also said: “I don't ___________ [unintelligible] my brother. [Laughter in the courtroom].” On cross-examination of state's witness John Thomas the following question and answer took place: Q: You also have told a police officer that you knew about a Jack Lewis being over at Middleton's at one time around that period? A: I believe [unintelligible] mentioned that. Another omission occurred during the cross-examination of state's witness Gary Moore, who identified the body of Pinegar from fingerprints taken at the autopsy. Moore was asked to give the name of the previous examiner who had left her employment with the crime lab. The record reflects that Moore gave the name “Rosella B______ [unverified name].” One further incomplete statement in the transcript of the trial comes during the testimony of Dr. Suthikant, who testified that he was “certified by [unintelligible] of Psychiatry in general psychiatry, child and adult psychiatry and forensic psychiatry.” In his brief on appeal, Middleton concedes that the evidence at trial established Dr. Suthikant's competency. Middleton's Point 22 is denied.

2. Proportionality Review (Middleton's Point 19)

Section 565.035 requires us to independently review the sentence of death to determine (1) whether it was imposed under the influence of passion or prejudice, or any other arbitrary factor; (2) whether there was sufficient evidence to support the finding of a statutory aggravating circumstance and any other circumstance found; and (3) whether the sentence was excessive or disproportionate to the penalty imposed in similar cases. There is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. See Carter, 955 S.W.2d at 562; Simmons, 944 S.W.2d at 190. We review the trial court's findings to determine if the evidence supports–beyond a reasonable doubt—the existence of an aggravating circumstance and any other circumstance found. Section 565.035.3(2); Brown, 902 S.W.2d at 294. The jury found two statutory aggravating circumstances as a basis for considering the death sentence. It found that the murder committed was wantonly vile, horrible or inhuman in that it involved depravity of mind. Section 565.032.2(7). The jury also found that Middleton murdered Pinegar for the purpose of attempting to conceal his dealing of methamphetamine. Section 565.032.2(15).

The evidence supports, beyond a reasonable doubt, that Pinegar's murder was wantonly vile, horrible or inhuman in that it involved depravity of mind. See State v. Barnett, 980 S.W.2d 297, 309–10 (Mo. banc 1998); State v. Tokar, 918 S.W.2d 753, 773 (Mo. banc 1996). The jury was instructed that it could made a determination of depravity of mind “only if you find that the defendant killed Alfred Pinegar as a part of defendant's plan to kill more than one person and thereby exhibited a callous disregard for the sanctity of human life.” The evidence supports a finding that Middleton killed Pinegar as part of a plan to eliminate all of the police informants on his “hit list.” Only ten days before he killed Pinegar, Middleton killed Stacey Hodge and Randy Hamilton, again to eliminate all those who could be a potential “snitch.”

The evidence also supports, beyond a reasonable doubt, that Middleton killed Pinegar in an attempt to conceal his felony offense of drug dealing. See State v. Roll, 942 S.W.2d 370, 379 (Mo. banc 1997), cert. denied, 522 U.S. 954, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997). Stallsworth testified that Middleton told him that he killed Pinegar because he was worried that Pinegar may be a drug informant who would turn Middleton in to the police. Thomas testified that Middleton told him that something had to be done to the potential drug informants. Middleton told another acquaintance that Pinegar was on his “hit list” as being a potential drug informant. In determining whether the sentence of death is excessive or disproportionate, we are to consider “the crime, the strength of the evidence and the defendant.” Section 565.035.3(3). We have found a sentence of death appropriate where the murder was committed to prevent the victim from serving as a potential witness against the murderer. See, e.g., State v. Taylor, 929 S.W.2d 209, 223 (Mo. banc 1996); Parker, 886 S.W.2d at 934; State v. Shurn, 866 S.W.2d 447, 467 (Mo. banc 1993). We have also found the death sentence appropriate when the fatal blow is dealt to the victim while the victim is lying injured and helpless, which the facts seem to indicate here. See, e.g., Tokar, 918 S.W.2d at 773.

The strength of the evidence and Middleton's violent behavior support a sentence of death. Physical evidence found at the crime scene, such as the leather fringe, the broken sunglasses, and the plastic clock, link Middleton to Pinegar's murder. Booth's testimony concerning Middleton's purchase of certain types of ammunition also link Middleton to the murder. Hobbs' testimony that she saw Middleton driving away from Pinegar's home on the day of the murder further implicate Middleton. The testimony of Stallsworth and Thomas indicate that Middleton admitted to them that he killed Pinegar. Penalty phase evidence also established that Middleton committed a virtually identical pair of murders ten days prior to killing Pinegar. This means that within two weeks' time Middleton killed three people because he believed that two of them might give evidence to the police about his drug dealing. The third victim, Stacey Hodge, was killed simply because of her association with one of the potential informants. The circumstances surrounding Middleton's murder of Pinegar reveal Middleton's depraved character. Middleton walked into Wal–Mart, with the man he planned to murder, and bought the ammunition used to murder him. Only two hours after the murder, he returned to the Wal–Mart to exchange the unused portion of the ammunition. These facts reveal that Middleton rationally and methodically planned and executed the murder of Pinegar. Middleton's sentence is neither excessive nor disproportionate. Middleton's Point 19 is denied.

3. Meaningful Review under 565.035.3(3) (Middleton's Point 20)

Middleton complains that the proportionality review mandated by section 565.035.3(3) fails to provide meaningful review and violates his procedural due process rights. This Court has recently rejected this argument. See Johnson, 968 S.W.2d at 134–35; Owsley, 959 S.W.2d at 799; Weaver, 912 S.W.2d at 522. Missouri's system of death sentence review is not unconstitutional. Ramsey v. Bowersox, 149 F.3d 749, 754 (8th Cir.1998) ( “Missouri's proportionality review does not violate the Eighth Amendment, due process, or equal protection of the laws.”). Middleton's Point 20 is denied.

IV. CONCLUSION

The judgment is affirmed. All concur.
 

State v. Middleton, 998 S.W.2d 520 (Mo. 1999). (Direct Appeal-Hamilton/Hodge Murders)

Defendant was convicted in the Circuit Court, Callaway County, Frank Conley, J., of two counts of first-degree murder and two counts of armed criminal action, and was sentenced to death. Defendant appealed. The Supreme Court, Benton, J., held that: (1) defendant's absence from three pretrial hearings did not constitute plain error in violation of his statutory and constitutional rights to be present during trial; (2) testimony of state's expert did not constitute an improper expert opinion regarding witness' credibility; (3) curative admissibility doctrine permitted admission of sheriff's hearsay testimony; (4) sufficient evidence supported finding of statutory aggravating circumstances; and (5) death sentence was not disproportionate. Affirmed.

DUANE BENTON, Judge.

A jury convicted appellant John J. Middleton of two counts of murder in the first degree and two counts of armed criminal action, for shooting Randy Hamilton and Stacey Hodge. The jury assessed two death sentences, which the circuit court imposed. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. Affirmed.

I. Facts

This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). On June 10, 1995, several drug dealers were arrested in Cainsville, Missouri. Appellant, a drug dealer, worried that informants would implicate him as well. That afternoon, he told Tom Constable that there were “some snitches that should be taken care of,” because he did not want to go back to prison. He mentioned several names, including Randy “Happy” Hamilton. The next day, appellant and his girlfriend, Maggie Hodges, met Hamilton and Stacey Hodge on a gravel road. Stacey Hodge was Hamilton's girlfriend. Appellant shot Hamilton in the back once with an SKS rifle, and shot Stacey Hodge in the back three times. Appellant then shot Hamilton in the head, killing him. Maggie Hodges killed Stacy Hodge by shooting her in the head with another SKS rifle. Both bodies were placed in the trunk of Hamilton's car. Appellant drove the car, looking for a place to dispose of the bodies. Hodges followed in a truck. While driving around, appellant saw Danny Spurling. Appellant – covered in blood and driving Hamilton's car – said that he had “taken care” of Hamilton. He asked Spurling what to do with the bodies, indicating that he might burn them in Hamilton's old house. The next morning, appellant gave Spurling the car stereo from Hamilton's car, and said that “they were really going to freak out when they found those two.” Appellant had a written list of names, and asked if Spurling knew anyone on the list.

About a week and a half later, appellant told Richard Pardun that “there was a narc around and they were going to take care of it.” He said that he had a “hit list,” mentioning several names on it, including Hamilton, Alfred Pinegar, FN1 and William Worley. Appellant offered Pardun $3,500 to set up a meeting with Worley. FN1. Appellant was convicted of the murder of Pinegar in 1997. For the appeal in that case, see State v. Middleton, 995 S.W.2d 443 (Mo. banc 1999).

On June 25, 1995, John Thomas was at appellant's house, discussing informants. Appellant listed several people who “needed to be taken care of,” including Hamilton, Pinegar, and Worley. Thomas noticed two SKS rifles and a box belonging to Hamilton. When Thomas asked about the box, appellant replied, “the guy who owned that box wouldn't be needing it no more.”

About the same time, appellant visited Dennis Rickert in Iowa. Appellant told Rickert: “I'd knowed ‘Happy’ for 15 [years]. He knew enough to put me away for life. I done ‘Happy.’ ” Appellant also gave Rickert several guns, including two SKS rifles, which Rickert later turned over to the police.

Appellant was arrested for another murder (Pinegar's) in late June 1995. On July 10, 1995, Hamilton's car was discovered in the woods where it had been abandoned. The car stereo was missing. The victims' decomposed bodies were in the trunk. Bullet fragments taken from Stacy Hodge's body displayed class characteristics consistent with the SKS rifles that appellant gave Rickert. While awaiting trial in the Harrison County jail, appellant confessed to fellow inmate Douglas Stallsworth. Stallsworth testified that appellant described the murders, admitted killing Hamilton and Hodge because they were informants, and acknowledged hiding their bodies and taking the rifles to Iowa.

II. Pretrial Matters

A.

Appellant asserts that the trial court erred in overruling his pretrial motion to quash the information or estop the court from imposing the death sentence. Appellant argues that the State exercises unconstitutional discretion in seeking the death penalty. This point is again denied. E.g., State v. Smith, 944 S.W.2d 901, 923 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997).

B.

Appellant alleges that the circuit court should have sustained his pretrial motion to dismiss the charge of murder in the first degree. Appellant contends that first- and second-degree murder are indistinguishable because the definition of “deliberation” is devoid of meaning and provides inadequate notice of the crime charged. To the contrary, first- and second-degree murder are distinguishable. State v. Rousan, 961 S.W.2d 831, 851–52 (Mo. banc), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). First-degree murder requires sufficient evidence of deliberation, defined by statute as “cool reflection for any length of time no matter how brief.” Section 565.002(3).FN2 The trial court properly overruled appellant's motion to dismiss. FN2. All statutory citations are to RSMo 1994.

C.

Appellant next argues that his absence at three pretrial hearings violated his statutory and constitutional rights to be present at trial. Appellant was absent from hearings on October 24, 1997; February 13, 1998; and March 13, 1998. At the hearing on October 24, the trial court scheduled several pretrial hearings, and the defense withdrew its “Notice of Intent to Rely on the Defense of Mental Disease or Defect.” The notice was re-filed on December 8, and appellant was present on December 19, when defense counsel, the prosecutor, and the court specifically discussed the notice and the court ordered a mental examination under section 552.030.3. At the February 13 hearing, the trial court scheduled another pretrial hearing. Also on February 13, the prosecutor mentioned that appellant had, “refused to talk to [the court-appointed psychiatrist] when he met with him on ... January 21st of 1998.” Defense counsel responded that appellant “has agreed that he will meet with [the psychiatrist] and cooperate with him.” The court set a two-week deadline for the mental examination.

Finally, at the hearing on March 13, the court ruled on 41 defense motions. It also granted the State leave to file a First Amended Information. Appellant contends that his absence at these three hearings violated his right to be present under section 546.030; article I, section 18(a) of the Missouri Constitution; and the Due Process Clause of the Fifth Amendment. He stresses that the trial court: ruled on the majority of the pretrial motions at these settings. The court's rulings on these motions were material to the way in which the trial was ultimately conducted and therefore to the defense strategy at that trial. Moreover, appellant notes that he was absent when the prosecutor said he refused to submit to the court-ordered mental examination. He argues: “This strongly suggests his disagreement with his counsel's decision to present a mental illness defense.” This claim was not raised in appellant's motion for new trial. Rule 29.11(d) ; see State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 692 (1943). Accordingly, this Court reviews for plain error. Rule 30.20. Relief will be granted only if substantial rights are involved and the Court finds a manifest injustice or miscarriage of justice. Id.; State v. Davidson, 982 S.W.2d 238, 242 (Mo. banc 1998).

1. Statutory Right to Be Present

“No person indicted for a felony can be tried unless he be personally present, during the trial.” Section 546.030 ; see also Rule 31.03(a). Under the statute: “The trial does not embrace every procedural and administrative step and judicial examination of every issue of fact and law.” State v. Durham, 416 S.W.2d 79, 83 (Mo.1967). A defendant's presence is not required at preliminary or formal proceedings or motions that do not affect guilt or innocence. Id. In this case, the proceedings at issue were all pretrial. Appellant concedes that no evidence was adduced during these hearings. Defense counsel explicitly acknowledged at the March 13 hearing: “These are all our legal motions, Judge, they're not evidentiary.” Nor does appellant contend that any rulings affected his guilt or innocence. Rather, he says that the “motions were clearly material to the trial of the case.” Appellant's statutory claim to be present for all motions affecting the trial is without merit. The statute requires a defendant's presence only “during the trial.” Section 546.030. Appellant's absence at the pretrial hearings was not plain error amounting to a manifest injustice.

2. State Constitutional Right to Be Present

The Missouri Constitution provides: “That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel.” Mo. Const. art. I, sec. 18(a). This right is broader than that in section 546.030, but can be waived. Neal, 169 S.W.2d at 694. Waiver occurs when neither defendant nor defense counsel requests the defendant's presence. Id.; Durham, 416 S.W.2d at 83 (“There was no request by defendant's counsel that defendant be brought from confinement to the courtroom or that the hearing on the motion be postponed until defendant could be present.”); State v. Bizzle, 500 S.W.2d 259, 263 (Mo.App.1973). Here, defense counsel expressly waived appellant's presence at all three pretrial hearings. At the end of the October 24 hearing, defense counsel stated: “We were here on behalf of our client. Our client was not present in court. That was with the consent of the client.” On February 13, 1998, defense counsel stated: “I did not request the court to writ in my client this morning…. Voluntarily waive my client's presence.” Finally, on March 13, 1998, defense counsel began: “Judge, for the record I would note that I did not writ my client in for this hearing.” Under the Missouri Constitution, appellant's absence was not plain error.

3. Federal Right to Be Present

The United States Constitution secures the right to be present “in some situations where the defendant is not actually confronting witnesses or evidence against him.” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985); State v. Smulls, 935 S.W.2d 9, 17 (Mo. banc 1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997). A defendant has a “due process right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ ” Gagnon, 470 U.S. at 526, 105 S.Ct. 1482 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)); Smulls, 935 S.W.2d at 17. The focus is whether, on the whole record, the defendant could have done or gained anything by attending. Gagnon, 470 U.S. at 527, 105 S.Ct. 1482; Smulls, 935 S.W.2d at 17. Aside from the State's Motion for Leave to File the First Amended Information – which the State could do as of right, Rule 23.08 – all motions at the March 13 hearing were defense motions. Most involved discovery, instructional, and other legal issues. Every defense motion about specific evidence was either sustained or taken with the case – with one exception: the court overruled the Motion to Exclude Victim Impact Evidence at Penalty Phase. See State v. Roberts, 948 S.W.2d 577, 604 (Mo. banc 1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998) (victim impact evidence is generally admissible in the penalty phase). Defense counsel, however, next moved to “limit victim impact evidence,” which motion was taken with the case. The trial court's rulings on the pretrial motions did not require appellant's input nor call for any decision or reaction from him. Smulls, 935 S.W.2d at 17. He “had nothing to do or gain from his presence there.” Id.

Further, the record does not show that a defense of mental disease or defect was presented against appellant's will. Even if a defendant properly raises the defense of not guilty by reason of mental disease or defect excluding responsibility, that defense can be abandoned at trial. See State v. Coleman, 460 S.W.2d 719, 726 (Mo. banc 1970). Here, this defense was never mentioned after the February 13 hearing. Appellant presented no evidence of a mental disease or defect at trial. Further, appellant neither requested nor did the court submit any jury instructions on that defense. See MAI–CR 3d 306.02A. Therefore, even if defense counsel intended to present a defense of mental disease or defect on February 13, it was ultimately abandoned. The fact that appellant was absent when the prosecutor mentioned his refusal to submit to the court-ordered mental examination was not plain error amounting to a manifest injustice.

III. Guilt Phase

A.

Appellant argues that the trial court improperly admitted testimony from Dr. Deja Suthikant, an expert witness, concerning the credibility of State's witness Douglas Stallsworth. At the time of trial, Stallsworth was a patient of Dr. Suthikant at a mental hospital. During cross-examination of Stallsworth, defense counsel repeatedly elicited that Stallsworth was committed after being found not guilty “by reason of insanity,” or “by reason of mental disease or defect,” on a forgery charge, because he suffered from “bipolar disorder.” Defense counsel continued:

MS. TURLINGTON [defense counsel]: Mr. Stallsworth, didn't you initially say that you could not remember writing the check that got you into the Harrison County jail? A: Yes. * * * Q: Couldn't remember that, but you can remember what happened to Mr. Middleton? A: Yes.

In response to the defense cross-examination of Stallsworth, the State called Dr. Suthikant to testify: MS. KOCH [prosecutor]: And what mental disease or defect does [Stallsworth] suffer from? A: He has been diagnosed as bipolar two disorder. Q: And does that prevent him from understanding his oath in front of the jury? A: No. Q: Does that prevent him from being able to recall ... MS. TURLINGTON: Judge I'm going to Q: ... and observe events? MS. TURLINGTON: I'm going to object to this line of questioning. That issue is for the court to decide. THE COURT: That objection will be overruled. Let's proceed. Q: Does that prevent him from being able to understand things that he hears and be able to later testify about? A: No, that wouldn't. Appellant argues that this testimony was inadmissible under State v. Taylor, 663 S.W.2d 235, 239[7] (Mo. banc 1984), and State v. Williams, 858 S.W.2d 796, 801 (Mo.App.1993).

Generally, experts may not give opinions on the credibility of witnesses. Taylor, 663 S.W.2d at 239. Unlike the expert in Taylor, however, Dr. Suthikant did not “buttress” or “vouch too much for” Stallsworth's credibility. Id. at 240. In fact, Dr. Suthikant never expressed an expert opinion on the credibility of the witness. He stated that bipolar disorder has no effect – one way or the other – on Stallsworth's memory and ability to testify. This testimony is not prohibited by Taylor. Id. at 240, 241. See also Beishir v. State, 522 S.W.2d 761, 765 (Mo. banc 1975), cert. denied, 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975); Williams, 858 S.W.2d at 801. Rather, Dr. Suthikant's testimony assisted the jurors on an issue outside of their understanding. State v. Lawhorn, 762 S.W.2d 820, 822 (Mo. banc 1988). Thus, the State properly rehabilitated Stallsworth after appellant raised the inference that Stallsworth's bipolar disorder affected his ability to remember.

B.

Appellant next contends that the trial court should have excluded the testimony of sheriff George Martz. After appellant's arrest, Danny Spurling faced charges for several crimes in Iowa, which were dismissed. On cross-examination of Spurling, defense counsel elicited that the charges were dismissed after a meeting between sheriff Martz, Spurling, and Spurling's attorney. During cross-examination of sheriff Martz, defense counsel questioned him about a conversation with the Iowa prosecutor: MS. TURLINGTON [defense counsel]: ... At some point you called the prosecutor's office in Iowa? A: I had a conversation with the prosecutor. I don't recall whether it was on the phone or how it was done, but I had a conversation. Q: That was in regards to Mr. Spurling's cases pending in Iowa? A: Yes. Q: And those cases were subsequently dismissed? A: That is correct.

The State recalled sheriff Martz to rebut the inference that he asked the Iowa prosecutor to drop the charges. On cross-examination, defense counsel again emphasized that the charges were dismissed after he talked to the prosecutor: MS. TURLINGTON: Sheriff Martz, you did ask the prosecutor in Iowa if they could just go easy on Mr. Spurling? A: I never said that. Q: You discussed the cases with her though? A: Yes. Q: And part of that discussion was to see what kind of treatment he would receive on those cases? A: I don't recall that. Q: Well, you did call Iowa and talk to the prosecutor about his cases? A: I talked to the prosecutor in Iowa, yes. Q: Because you knew Mr. Spurling had pending cases in Iowa? A: I knew he'd been arrested, yes. Q: And those cases ultimately were dismissed against Mr. Spurling? A: They were. On redirect, the State questioned sheriff Martz about his conversation with the Iowa prosecutor. Over defense objection, he testified that the prosecutor “indicated the strength of the case [against Spurling] was weak.” Appellant argues that the State cannot introduce inadmissible evidence to rebut evidence properly admitted on cross-examination.

The scope of redirect examination is limited to subjects covered in cross-examination. See State v. Crawford, 619 S.W.2d 735, 739–40 (Mo.1981). On redirect, a party may examine a witness on matters that tend to refute, weaken or remove negative inferences resulting from cross-examination. Id.; State v. Copeland, 928 S.W.2d 828, 845 (Mo. banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997). A party may not, however, introduce inadmissible evidence to rebut inferences raised by the introduction of admissible evidence during cross-examination. State v. Shurn, 866 S.W.2d 447, 458 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). See State v. Chambers, 891 S.W.2d 93, 103 (Mo. banc 1994) (irrelevant evidence, which would otherwise be inadmissible, can become relevant and admissible if an issue is raised on cross-examination). Absent an exception, hearsay testimony cannot be used to rebut inferences drawn from admissible evidence adduced during cross-examination. Chambers, 891 S.W.2d at 103. See also Shurn, 866 S.W.2d at 458; State v. Weaver, 912 S.W.2d 499, 510 (Mo. banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996); Copeland, 928 S.W.2d at 845.

The “curative admissibility doctrine” applies after one party introduces inadmissible evidence. State v. Shurn, 866 S.W.2d 447, 458 (Mo. banc 1993). In that situation, the opposing party may introduce otherwise inadmissible evidence of its own to rebut or explain inferences raised by the first party's evidence. Id. State v. Lingar, 726 S.W.2d 728, 734–35 (Mo. banc 1987). Thus, where one party repeatedly refers to a hearsay statement, the opposing party may introduce that statement to refute any negative inferences. State v. Debler, 856 S.W.2d 641, 648–49 (Mo. banc 1993). Here, defense counsel twice questioned sheriff Martz about the content of his conversation with the Iowa prosecutor, both times emphasizing the inference that the charges against Spurling were dropped at Martz's request. Therefore, the hearsay was properly admitted in rebuttal.

C.

Appellant next asserts that the trial court erroneously allowed evidence of his escape from jail while awaiting trial in this case. On September 14, 1995, trooper Christopher Forck was in the Highway Patrol office on the second floor of the Harrison County courthouse. Forck heard a noise from the jail on the third floor. Investigating, he discovered appellant standing outside the locked cell area. Appellant claims that because he was also awaiting trial for the murder of Alfred Pinegar, his escape does not evidence a consciousness of guilt in this case. He notes that he might have been trying to visit Maggie Hodges, who was incarcerated in the women's side of the jail. “Proof of escape from jail is generally admissible to show a consciousness of guilt.” State v. Thompson, 985 S.W.2d 779, 789 (Mo. banc 1999). Such evidence is admissible even where the defendant is being held on multiple charges at the time of the escape. State v. Hughes, 596 S.W.2d 723, 728–30 (Mo. banc 1980). Whether the escape was motivated by a consciousness of guilt or another reason is for the jury. Thompson, 985 S.W.2d at 789. This point is denied.

IV. Penalty Phase

A.

Appellant alleges that the trial court should have admitted part of the testimony of penalty-phase witness William Worley. Appellant's theory in the penalty phase was that at the time of the murders, he was under a severe mental or emotional disturbance resulting from chronic methamphetamine use. See section 565.032.3(2). Three penalty-phase witnesses, including Worley, and one expert witness described appellant's paranoid delusions and hallucinations. Cross-examining Worley, defense counsel tried to ask: “What else did John Middleton say to you that causes you to say he was acting weird?” The State objected on hearsay grounds, which the trial court sustained. Appellant argues that the requested testimony was not hearsay, and its exclusion violated his right to present mitigating evidence. Appellant did not make an offer of proof nor raise this in his motion for new trial. See State v. Clay, 975 S.W.2d 121, 131 (Mo. banc 1998). Therefore, this Court reviews for plain error. Rule 30.20. The challenged ruling was not plain error resulting in manifest injustice or miscarriage of justice. Id.

B.

Appellant next says that the trial court should have sustained his objection to part of the State's penalty-phase argument. Before this trial, appellant had been convicted and sentenced to death for the murder of Alfred Pinegar. In penalty-phase closing argument, defense counsel stated: MS. DAVIS [defense counsel]: The fact of the matter is John Middleton can only be killed once. And he's already under a sentence of death.... And it might be said that you should impose two more sentences of death to make a total of three sentences of death because maybe he won't be executed the first time around. Missouri is a killing state. We're right up there behind Texas and Florida. We kill our killers. We do that in Missouri. * * * In those rare occasions when you might have heard somebody under a sentence of death has had their life spared, chalk it up to a higher intervention. In response, the State argued in its penalty-phase rebuttal argument: MS. KOCH [prosecutor]: Ms. Davis may be real sure that this defendant isn't going to get out, but I'm not. * * * Ms. Davis mentioned to you about those few occasions where a person's life is spared. She didn't talk to you about the many appeals that people go through. * * * She didn't talk about the many different levels of appeals that these cases go through. She didn't talk to you about the federal court of appeals and how often those cases get overturned on appeal because they're death penalty cases. She didn't talk to you about any of that, did she? Appellant alleges that this argument diminished the responsibility of the jury, contrary to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (finding reversible error where the prosecutor “minimize[d] the jury's sense of responsibility for determining the appropriateness of death”).

“A prosecutor has considerable leeway to make retaliatory arguments in closing. A defendant may not provoke a reply and then assert error.” State v. Roll, 942 S.W.2d 370, 378 (Mo. banc 1997) (citing State v. Parker, 886 S.W.2d 908, 922 (Mo. banc 1994)). Here, the prosecutor responded to the defense argument that appellant would be killed whether or not this jury returned a sentence of death. The prosecutor did not minimize the jury's responsibility in this case. Rather, her comments addressed the finality of appellant's sentence in a different case. Caldwell, therefore, is inapposite. This point is denied.

C.

Appellant next contends that the trial court submitted an improper aggravating circumstance. Although appellant murdered Alfred Pinegar two weeks after he murdered Hamilton and Hodge, appellant was tried and convicted of Pinegar's murder before the trial in this case. Over appellant's objection, the court submitted and the jury found the following statutory aggravating circumstance: “The offense was committed by a person with a prior record of conviction for murder in the first degree....” Section 565.032.2(1). Appellant argues that, to submit this aggravator, the prior conviction must have occurred before the commission of the offense charged.

This Court, however, will affirm if “there is a finding of one valid aggravating circumstance beyond a reasonable doubt.” State v. Jones, 979 S.W.2d 171, 186 (Mo. banc 1998). Here, the jury found three aggravating circumstances. Only one is challenged by appellant. This point is denied. FN3 FN3. Neither party mentions State v. Harris, 870 S.W.2d 798, 813 (Mo. banc 1994). This Court need not address the dicta in that case on section 565.032.2(1).

D.

Appellant next alleges that the trial court erroneously overruled his objections to Instructions 22 and 27, patterned after MAI–CR 3d 313.41A. Instruction 22 reads: As to Count I, if you have found beyond a reasonable doubt that one or more of the statutory aggravating circumstances submitted in Instruction 21 exists, then you must decide whether there are facts and circumstances in aggravation of punishment which, taken as a whole, warrant the imposition of a sentence of death upon the defendant.FN4 FN4. Instruction 27 is identical to Instruction 22 except that it refers to Count II, instead of Count I, and it refers to Instruction No. 26, instead of Instruction 21. If the jury finds that aggravating circumstances warrant the death sentence, then it considers mitigating evidence. See section 565.030.4. Appellant argues that this scheme violates his constitutional rights to due process and freedom from cruel and unusual punishment. “As we have explained in previous cases, however, the jury's decision that the death penalty is warranted is not the same as deciding that it shall be imposed.” State v. Simmons, 955 S.W.2d 729, 743[31] (Mo. banc 1997), cert. denied, 522 U.S. 1129, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998) (emphasis in original).

V. Proportionality Review

A.

According to appellant, this Court's proportionality review violates his constitutional right to due process and effective assistance of counsel. This claim has been repeatedly denied. Clay, 975 S.W.2d at 146; Rousan, 961 S.W.2d at 854–55.

B.

This Court conducts an independent review of all death sentences. Section 565.035.3. Three factors are considered. First, this Court determines: “Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.” Section 565.035.3(1). As previously discussed, appellant's specific allegations are without merit. In addition, an independent review of the record reveals that the death sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor. Second, this Court assesses: “Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance….” Section 565.035.3(2). For both first-degree murder convictions, the court submitted and the jury found three statutory aggravating circumstances: (1) appellant had a prior conviction of murder in the first degree; (2) appellant murdered the victim while engaged in the attempted commission of another unlawful homicide; and (3) the murder involved depravity of mind, because appellant killed the victim as part of a plan to kill more than one person, exhibiting a callous disregard for the sanctity of all human life. Appellant does not attack any aggravating circumstance as unsupported by evidence. A certified copy of appellant's prior first-degree murder conviction was admitted, and physical evidence and witness testimony established the commission of a double homicide. The evidence was sufficient to support all aggravating circumstances.

Finally, this Court weighs: “Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence and the defendant.” Section 565.035.3(3). The death sentence is frequently imposed where the defendant murdered more than one person. E.g., State v. Johnson, 968 S.W.2d 123, 135 (Mo. banc 1998), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998) (citing authority); State v. Hutchison, 957 S.W.2d 757, 767 (Mo. banc 1997). Moreover, the death sentence has been imposed where the defendant murdered potential witnesses. E.g., State v. Parker, 886 S.W.2d 908, 934 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995) (citing authority). Here, the evidence established that appellant had a list of suspected informants, whom he planned to murder in order to avoid going back to prison. To this end, he killed three people. Under the facts and circumstances at trial, the death sentences in this case are neither excessive nor disproportionate.

VI. Conclusion

The judgment is affirmed. All concur.
 

Middleton v. State, 80 S.W.3d 799 (Mo. 2002). (PCR-Hamilton/Hodge Murders)

Movant, whose conviction for first-degree murder and armed criminal action and his death sentence was affirmed on direct appeal by Supreme Court, 998 S.W.2d 520, filed motion for post-conviction relief. After evidentiary hearing, the Circuit Court, Callaway County, Frank Conley, J., denied motion. Movant appealed. The Supreme Court, Benton, J., held that: (1) state did not violate its duty to disclose evidence; (2) neither trial nor appellate counsel was ineffective as to guilt phase; and (3) counsel was not ineffective at penalty phase. Affirmed.

DUANE BENTON, Judge.

A jury convicted John J. Middleton of two counts of first-degree murder and two counts of armed criminal action, for shooting Randy Hamilton and Stacey Hodge. The jury assessed two death sentences, which the circuit court imposed. This Court affirmed on direct appeal. State v. Middleton, 998 S.W.2d 520 (Mo. banc 1999), cert. denied, 528 U.S. 1167, 120 S.Ct. 1189, 145 L.Ed.2d 1094 (2000). Defendant then moved for post-conviction relief, which was denied after an evidentiary hearing. Rule 29.15. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 10; order of June 16, 1988. Affirmed.

I. Facts

On direct appeal, this Court stated the following facts. In 1995, several drug dealers were arrested in northern Missouri. Defendant, also a drug dealer, worried that informants would implicate him. He said there were “some snitches that should be taken care of,” because he did not want to go back to prison. He mentioned several names, including Randy “Happy” Hamilton.

The next day, defendant and his friend, Maggie Hodges, met the two victims on a gravel road. Defendant shot Randy Hamilton in the back once with an SKS rifle. Defendant shot Stacey Hodge in the back three times. Defendant then shot Hamilton in the head, killing him. Defendant's friend killed Hodge by shooting her in the head with another SKS rifle. Both bodies were placed in the trunk of Hamilton's car. Defendant drove the car, looking for a place to dispose of the bodies. Defendant's friend followed in a truck. Driving around, defendant saw Danny Spurling. Defendant—covered in blood and driving Hamilton's car—said that he had “taken care” of Hamilton. He asked Spurling what to do with the bodies, indicating that he might burn them in Hamilton's old house. The next morning, defendant gave Spurling the stereo from Hamilton's car, saying “they were really going to freak out when they found those two.” Defendant had a written list of names, and asked if Spurling knew anyone on the list.

A week and a half later, defendant stated “there was a narc around and they were going to take care of it.” He mentioned his “hit list,” and several names on it, including Hamilton, Alfred Pinegar,FN1 and William Worley. Defendant offered a mutual acquaintance $3,500 to set up a meeting with Worley. FN1. Defendant was convicted of the murder of Pinegar in 1997. State v. Middleton, 995 S.W.2d 443 (Mo. banc), cert. denied, 528 U.S. 1054, 120 S.Ct. 598, 145 L.Ed.2d 497 (1999).

On June 25, 1995, John Thomas and defendant discussed informants at defendant's home. Defendant listed several people who “needed to be taken care of,” including Hamilton, Pinegar, and Worley. Thomas noticed two SKS rifles and a box belonging to Hamilton. When Thomas asked about the box, defendant replied: “the guy who owned that box wouldn't be needing it no more.” About the same time, defendant told an Iowa friend: “I'd knowed ‘Happy’ for 15 [years]. He knew enough to put me away for life. I done ‘Happy.’ ” Defendant also gave the Iowa friend several guns, including two SKS rifles, which the police later recovered.

Defendant was arrested for another murder (Pinegar's) in late June 1995. In July, Hamilton's car was found in the woods where it had been abandoned. The car stereo was missing. In the trunk were the victims' bodies. Bullet fragments from Stacy Hodge's body displayed class characteristics consistent with the SKS rifles that defendant gave away. Awaiting trial in the county jail, defendant confessed to a fellow inmate. The inmate testified that defendant described the murders, admitted killing Hamilton and Hodge because they were informants, and acknowledged hiding their bodies and taking the rifles to Iowa.

II. Standard of Review

In this Rule 29.15 case, defendant must prove his claims by a preponderance of the evidence. Rule 29.15(i). This Court reviews, for clear error, the motion court's findings of fact and conclusions of law. Rule 29.15(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Moss, 10 S.W.3d at 511.

For ineffective assistance of counsel, defendant must show (1) his attorney's conduct was not reasonable, and (2) prejudice: “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Courts should defer to trial counsel, and not second-guess with the benefit of hindsight. Id. at 689, 104 S.Ct. 2052. Reasonable trial strategy cannot be ineffective assistance of counsel. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001).

III. Guilt Phase

A. Undisclosed Deals

Defendant claims that the prosecution did not disclose deals made for the testimony of John Thomas and Danny Spurling. “Prosecutors must disclose, even without a request, exculpatory evidence, including evidence that may be used to impeach a government witness.” State v. Robinson, 835 S.W.2d 303, 306 (Mo. banc 1992). See also Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rule 25.03. “Deals”—including plea agreements negotiated with witnesses—must be disclosed. Hutchison v. State, 59 S.W.3d 494, 496 (Mo. banc 2001).

1. John Thomas

On June 8, 1995, Thomas was charged with selling drugs, a class B felony. On February 27, 1998, the associate circuit judge wrote this docket entry: ? appears with counsel, Mr. Gary Allen, and waives preliminary hearing in open court. State appears by Ms. Chris Stallings, and state advises delay in prosecution due to ?'s participation as witness in companion proceedings. ? band [ sic ] over to Div. I and to appear at 9 a.m., March 17, 1998, and file to be certified to said division.

On March 17, Thomas waived arraignment and pled not guilty, with the case continued to April 21. On March 31, he testified in the trial of this case. On April 21, Thomas pled guilty to attempting to sell drugs, a class C felony. On September 10, 1998, the court suspended imposition of sentence, placing him on five years of supervised probation.

Defendant's trial counsel knew of Thomas's pending charge, questioning him about it at trial (as recorded on six transcript pages). Thomas denied making a deal, and blamed the local prosecutor for the delay. FN2. Defendant moves this Court to take judicial notice of evidence from the Pinegar post-conviction hearing. Specifically, defendant's trial counsel testified that, when asked about the delay, the local prosecutor gave “speculation” as to the reason, but made “no real response.” This evidence was not before the motion court, and cannot be considered in this appeal. State v. Tokar, 918 S.W.2d 753, 762 (Mo. banc) (“This evidence is not properly a part of the record before us and will not be considered because it involves matters not raised or considered at trial, or at the post-conviction relief hearing.”), cert. denied, 519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). The motion is overruled.

Defendant contends that the circumstantial evidence shows that Thomas had an undisclosed deal to testify against him. In Commonwealth v. Strong, an exchange of letters showed pre-trial plea negotiations. 563 Pa. 455, 761 A.2d 1167, 1170, 1174 (2000). The witness offered to plead guilty for a 36–month sentence. Id. at 1174. The state and the witness never reached an “ironclad” agreement. Id. But, after testifying, the witness received a 40–month sentence for murder and kidnapping. Id. Based on all the facts, the court found an “understanding,” which should have been disclosed. Id. at 1174–75. Here, defendant did not prove any understanding between any prosecutor and Thomas. The motion court did not clearly err.

2. Danny Spurling

When defendant was charged with the two murders, Spurling had eight pending criminal charges in Missouri. Two of the charges were dismissed in 1996, nineteen months before Spurling testified in defendant's trial. Fourteen months before testifying, he negotiated a plea agreement, pleading guilty to two charges. Twelve months before testifying, the other four charges were dismissed. No charges were pending when Spurling testified against defendant. Defendant argues, in effect, that the pleas and dismissals can be explained only as an undisclosed deal. Defendant must, however, do more than speculate. He must show that the plea was more than the common method to resolve charges. He must demonstrate why the other charges were dismissed. Moreover, Spurling testified that he did not have a deal. Given the paucity of supporting evidence, the motion court did not clearly err in concluding there was no deal.

Alternatively, defendant claims that the dismissals should have been disclosed. This claim also fails. The dismissals resolved the charges, removing Spurling's incentive to lie in order to obtain favorable treatment. State v. Simmons, 944 S.W.2d 165, 180 (Mo. banc), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997). Absent evidence of an understanding, the prosecutor was not required to disclose the dismissals.

B. Ineffectiveness of Trial Counsel

1. Required Mental State for First–Degree Murder

Defendant claims his attorneys were ineffective for not arguing that he lacked the mental state required for first-degree murder. During guilt phase, defendant called no witnesses, instead attacking the credibility of the State's witnesses. In closing, his attorney emphasized that the State did not prove the murders beyond a reasonable doubt. During penalty phase, Dr. Lipman—a neuropharmacologist—testified that defendant's chronic methamphetamine abuse caused symptoms (delusions, hallucinations, and paranoia) functionally identical to paranoid schizophrenia. In penalty closing, defendant's attorney argued that he should not get the death penalty, invoking (1) the excessiveness of imposing additional death sentences, when he already had one (for the Pinegar murder), (2) mercy, (3) the weak evidence against him, and (4) the corrosive effect of drug use on his thought processes.

Defendant now argues that counsel was ineffective for presenting inconsistent guilt and penalty theories. He contends counsel should have asserted that he lacked the required mental state, by calling Dr. Lipman and also Drs. Murphy (a psychologist) and Daniel (a psychiatrist), who would have testified that he had brain damage and was incapable of coolly deliberating. Defendant's attorneys actually investigated diminished-capacity and not-guilty-by-reason-of-insanity defenses. They knew of Drs. Lipman and Murphy, and their probable testimony. Counsel chose not to offer those defenses.

Counsel's selection of defense theories was reasonable. Sometimes, maintaining a consistent theory throughout trial is best. See State v. Harris, 870 S.W.2d 798, 816 (Mo. banc), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994). Other times, two theories, or changes to accommodate trial developments, are prudent. See Clayton, 63 S.W.3d at 206–07. Trial counsel is in the best position to assess tradeoffs. Where counsel has investigated possible theories, courts should rarely second-guess counsel's actual choices. See Lyons v. State, 39 S.W.3d 32, 39 (Mo. banc) (“Strategic choices made after thorough investigation are virtually unchallengeable.”), cert. denied, 534 U.S. 976, 122 S.Ct. 402, 151 L.Ed.2d 305 (2001).

Here, counsel reasonably chose not to assert that defendant lacked the required mental state during guilt phase. Defendant's trial attorney testified that defendant (1) did not want to present that defense, and (2) asserted his innocence. His attorneys feared that innocence and lack-of-required-mental-state were inherently inconsistent. Moreover, the argument that defendant's voluntary drug use “diminished” his capacity or rendered him insane may have offended the jury. Cf. sec. 562.076 RSMo 1994FN3; State v. Nicklasson, 967 S.W.2d 596, 617 (Mo. banc), cert. denied, 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998). In this case, counsel testified that the jury “hated” Dr. Lipman's penalty-phase testimony: FN3. All statutory references are to RSMo 1994, unless otherwise indicated.

Lipman did a thorough job of explaining to the jury in what I thought were good anecdotal explanations about the effects of methamphetamine on a person's brain. When I look at this jury, and I remember this very clearly during Dr. Lipman's testimony, they hated us. They hated the defense. They hated Lipman. They hated the whole idea of any sort of psychological defense or any sort of psychological reason or anything having to do with the use of drugs bringing about psychological issues. It was my decision not to compound what I thought was a really bad feeling I was getting from this jury by calling a second doctor to the stand. On cross-examination, trial counsel added: I didn't call [Dr. Murphy] because quite frankly the jury ..., they hated us. I could look at them and see that. I thought if I put on one more expert witness to talk about this for another, you know, lengthy period of time they would have come over the bench at us. In sum, counsel reasonably investigated the defense that defendant lacked the required mental state. Rejecting that defense during guilt phase was reasonable trial strategy. Counsel was not ineffective.

2. Not Presenting Evidence Implicating Spurling

Defendant asserts trial counsel was ineffective for not presenting the testimony of Dan Smith and Jeremy Wyatt. Smith—a firearms expert—would have testified that the bullet that killed Stacey Hodge could have come from a Winchester 30–30 model rifle. Defendant contends this implicates Spurling, who was arrested 11 months later for threatening a woman with a Winchester 30–30.

Wyatt—accomplice Maggie Hodges's son—testified at the post-conviction hearing that, while they were in jail together, Spurling threatened to kill him for what his mother and defendant did to the victims. Then, Spurling admitted he committed the murders. Wyatt said he reported Spurling's confession to a deputy. However, he told no one else until after defendant's trial. Counsel was not ineffective for not presenting these witnesses. Smith and the State's firearms expert agreed that the bullet could have come from a number of rifles. Smith's testimony suggested a possibility, which the State's expert did not foreclose.

Smith's testimony could have aided defendant only if other evidence showed Spurling had a Winchester 30–30 at the time of the murder. At most, Spurling had a Winchester 30–30 eleven months later. The motion court did not clearly err, because there was not a reasonable probability of acquittal, or a life sentence, if Smith testified. Wyatt's testimony is even less helpful. First, according to Wyatt, Spurling wanted to kill him for defendant's and his mother's roles in the murders, but then immediately admitted killing the victims himself. The motion court did not clearly err in finding that Wyatt was unbelievable, and that reasonable counsel would not have used him. Second, Wyatt testified that he told a deputy, but no one else. Nothing indicates that counsel should have known about Spurling's alleged confession to Wyatt. Thus, he did not prove that counsel should have discovered Wyatt's testimony. Morrow v. State, 21 S.W.3d 819, 823 (Mo. banc 2000), cert. denied, 531 U.S. 1171, 121 S.Ct. 1140, 148 L.Ed.2d 1004 (2001).

C. Ineffectiveness of Appellate Counsel

Cross-examining Thomas at trial, defense counsel asked if he immediately notified the police after seeing Hamilton's box in defendant's home. Thomas responded, “No.” After defense cross-examination, the prosecutor, at a bench conference, requested permission to ask: “Why didn't you go to the police at that time,” and “When did you go the police and why?” The court allowed the questions, over defense objection. The prosecutor then elicited that Thomas was not initially concerned, thinking Hamilton had traded the box to defendant for drugs. However, he later heard that Pinegar—who defendant listed as a snitch to kill—was dead. Then, he told the police about seeing Hamilton's box in defendant's home.

In closing, the prosecutor argued that the defendant was boasting that he killed Hamilton to intimidate other informants. She noted that the disappearance of Hamilton and Pinegar corroborated his boast. The trial court overruled defense's objection “to this line of argument.” Though counsel's objections were preserved for review, appellate counsel did not brief the issue. She considered Thomas's testimony not egregious, because he did not describe the murder. She also thought defense counsel opened the door to it. She did not challenge the closing argument, because the objection was not specific.

Defendant believes appellate counsel was ineffective. The standard for such claims is high: To support a [Rule 29.15] motion due to ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. The right to relief ... due to ineffective assistance of appellate counsel inevitably tracks the plain error rule; i.e., the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice. Moss, 10 S.W.3d at 514–15 (quoting Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994), cert. denied, 514 U.S. 1119, 115 S.Ct. 1982, 131 L.Ed.2d 869 (1995)).

Contrary to defendant's contentions, Thomas's testimony was proper rebuttal. The discovery of Pinegar's body explained Thomas's observations and actions. When Pinegar's body was discovered, Thomas connected the snitch list with Hamilton's box. Then, he became concerned and went to the police. Defendant claims that the prosecutor should have responded to defense's cross-examination without mentioning Pinegar. In State v. Collins, this Court held that, in general, other crimes should be admitted only out of “strict necessity.” 669 S.W.2d 933, 938 (Mo. banc 1984). Collins is distinguishable. First, Thomas did not mention a crime, but testified only that Pinegar's body was found. Second, when defense intimated that defendant's possession of the box was meaningless, the discovery of Pinegar's body was strictly necessary to explain Thomas's change of mind. Defense counsel opened the door to this admissible evidence. The prosecutor may 809 argue the evidence in closing. Appellate counsel was not ineffective.

III. Penalty Phase

A. Mitigating Evidence

1. Employer and Family

Defendant's attorneys did not contact four former employers, and two family members—an aunt and an uncle. They would have testified that defendant always had limited intellect, even before his heavy drug use. In addition, the former employers would have testified that defendant was a good worker. His aunt and uncle would add that his mother inhaled gas fumes as a child, his father was incarcerated for stealing, and his mother and her boyfriend took him to bars as a child. Defendant contends that, by a reasonable investigation, his attorneys would have discovered these witnesses, whose testimony would persuade the jury not to impose a death sentence. By not contacting them and presenting their testimony, he concludes his attorneys were ineffective.

Counsel is not ineffective as long as the investigation is reasonable. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Defendant's cases are distinguishable. In both cases, counsel delayed preparing for penalty phase. Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (one week before trial); Jermyn v. Horn, 266 F.3d 257, 308 (3rd Cir.2001) (the night before penalty phase). In Williams, the attorneys did not investigate records of a “nightmarish childhood,” incorrectly assuming state law barred access. 529 U.S. at 395, 120 S.Ct. 1495. They did not return the phone call of a volunteer witness. Id. at 396, 120 S.Ct. 1495. In Jermyn, counsel knew that defendant had been severely abused, but did not search for witnesses. 266 F.3d at 306–07. The investigation was so bad that counsel did not propound any particular mitigating theory. Id. at 308 (“counsel presented two witnesses during the penalty phase who offered the jury with little reason to spare Jermyn's life”).

Here, the investigation was reasonable. Defendant's attorneys reviewed 12 boxes of materials his former attorneys gathered. These materials included deposition transcripts, some hearing transcripts, notes from witnesses, photographs, police reports, coroner reports, and forensic reports. The attorneys also reviewed his work history, engaged two mental health experts, and talked to Department of Corrections employees. Further, at the post-conviction hearing, defendant did not ask lead counsel—responsible for family matters—which relatives she did contact, or how she determined whom to contact. Finally, this investigation culminated in a reasonable penalty phase defense. Defendant did not prove ineffectiveness.

2. Defendant's Mother

In the Pinegar trial, defendant's mother testified more than in this trial, including these additional facts: defendant had a blood condition at birth and during childhood; his alcoholic and often unemployed father spent time in prison, did not want a family, abused his mother, and had affairs; when defendant was five years old, he and his sister fired a gun at their father (superficially wounding him) to stop abuse of their mother; as a teenager, his mother's boyfriend, his sister's husband, and a cousin gave him alcohol and marijuana; and he once stopped a boyfriend from abusing his mother by involving a neighbor. Defendant claims his counsel was ineffective for not eliciting these facts.

The motion court found that defendant did not present any evidence on this issue. In fact, defendant introduced the transcript of his mother's testimony in the Pinegar trial, and questioned defense counsel, who did not remember reading it. Despite the motion court's oversight, an “appellate court will not order a useless remand to direct the motion court to enter a proper conclusion of law on an isolated issue overlooked by the motion court where it is clear that movant is entitled to no relief as a matter of law ....” State v. Hall, 982 S.W.2d 675, 689 (Mo.banc 1998) (quoting White v. State, 939 S.W.2d 887, 903 (Mo. banc 1997)), cert. denied, 526 U.S. 1151 (1999).

This evidence—that trial counsel did not read mother's Pinegar testimony—proves only that counsel did not learn these facts from the Pinegar trial. Defendant did not question defense counsel about her knowledge and why she chose not to elicit these facts. Defendant did not prove unreasonableness. Even if his mother had testified to the additional facts, it is not reasonably probable that defendant would have received a life sentence. After all, the jury in the Pinegar trial sentenced him to death, despite hearing more testimony from defendant's mother. See State v. Simmons, 955 S.W.2d 752, 775–76 (Mo. banc 1997), cert. denied, 522 U.S. 1129, 118 S.Ct. 1081, 140 L.Ed. 139 (1998).

3. Prior Confinement

Defendant was previously imprisoned in Iowa. His corrections counselor there would have testified that he behaved well in prison. Defendant contends counsel was ineffective for not contacting the counselor and not introducing his Iowa corrections records. Defendant claims this evidence would (1) rebut the implication he was an escape risk and (2) ameliorate the negative inference from his Iowa offenses. His attorneys introduced evidence of good conduct at a Missouri correctional facility, through two witnesses, a unit manager and a psychologist. They chose not to offer the Iowa evidence, believing the Missouri evidence sufficient. Counsel was not ineffective. The Iowa evidence mirrored the Missouri evidence, which showed that defendant can behave in prison. Also, the Iowa evidence would have emphasized his Iowa convictions. Counsel reasonably chose not to introduce cumulative evidence of defendant's good behavior in prison.

4. Brian Fifer

The husband of defendant's sister testified that she received a letter from defendant.FN4 According to brother-in-law, the postscript said: “if she doesn't write I'll sell this address.” Brother-in-law and sister understood “sell this address” meant “he was going to put a hit on us.” FN4. Defendant moves this Court to take judicial notice of the letter, which was admitted as an exhibit in the Pinegar trial, but not in the present trial. The letter was not introduced at the post-conviction hearing, and cannot be considered in this appeal. Tokar, 918 S.W.2d at 762. The motion is overruled.

Defendant claims his counsel should have contacted Brian Fifer—an Iowa cellmate, who would testify that “sell this address” is prison slang for “stop writing you.” According to defendant, counsel could find Fifer through defendant's Iowa prison records, and should have known about the issue from the Pinegar trial. As with defendant's mother, the motion court overstated by concluding he did not present any evidence. Defendant introduced Fifer's deposition. Even so, a remand is useless if the movant is clearly not entitled to relief as a matter of law. See Hall, 982 S.W.2d at 689. Defendant introduced no evidence that he told, or that his counsel should have known, that “sell this address” was not a threat. Without knowing (or being told by defendant) that the phrase had unique meaning among prisoners, counsel had no reason to question other prisoners. Counsel was not ineffective for not finding this witness.

B. Pinegar Murder

Defendant argues that counsel ineffectively handled the Pinegar murder during penalty phase. The State submitted the Pinegar murder as an aggravating circumstance under section 565.032.2(1). Defendant argues that the Pinegar murder was not a proper aggravator because it occurred after these murders. See Harris, 870 S.W.2d at 813. The jury found two other aggravators. Therefore, the death sentence is valid, with or without the Pinegar aggravator. Middleton, 998 S.W.2d at 530 & n. 3; State v. Jones, 979 S.W.2d 171, 186 (Mo. banc 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 886, 142 L.Ed.2d 785 (1999).

Further, the Pinegar evidence was admissible, whether or not it was an aggravator. In considering capital punishment, the jury is entitled to any helpful information. State v. Morrow, 968 S.W.2d 100, 114–15 (Mo. banc), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182 (1998); see also State v. Gilyard, 979 S.W.2d 138, 143 (Mo. banc 1998). “The decision to impose the death penalty, whether by a jury or a judge, is the most serious decision society makes about an individual, and the decision-maker is entitled to any evidence that assists in that determination.” State v. Debler, 856 S.W.2d 641, 656 (Mo. banc 1993).

A capital defendant's character is relevant in penalty phase, and may be proved with prior convictions. E.g., Middleton, 995 S.W.2d at 465; Simmons, 955 S.W.2d at 740. Defendant's conviction for a crime warranting the death penalty is relevant to his character. Also, the details of the Pinegar murder show that the Hamilton and Hodge murders were not isolated, but steps in a common plan. Defendant listed “snitches” he intended to kill before they turned him in to the police. Pinegar and Hamilton were named. Both the plan (systematic murder) and its purpose (eliminating snitches) were relevant to the punishment decision. Middleton, 995 S.W.2d at 465 (Hamilton and Hodge murders were relevant to the appropriate punishment for the Pinegar murder); see also Middleton, 998 S.W.2d at 531. Defendant also claims counsel should not have introduced evidence of or discussed the Pinegar murder. However, because the State could introduce the murder, counsel reasonably sought to preempt this evidence. Counsel was not ineffective.

C. Closing Argument

1. The Excessiveness Argument

Defendant argues counsel ineffectively argued his case to the jury. Defense counsel began her opening statement by noting the jurors would hear important new evidence: Defendant already had a death sentence. Counsel concluded by saying: “ladies and gentlemen, as ironic as you may think it seems, I'm going to come back and I'm going to ask you to spare the life of this man who's already on death row.” In closing argument, defense counsel began: Never have had to ask a jury to spare the life of a man who's already on death row. That's exactly what I'm asking you to do. And it might be said why? Why does it matter? And it might be said why weren't we told about this when we all came together on Monday? When it might be said that, you know, any decision you make here is going to be kind of scratched off the list by what's already gone before you as jurors. And I'd like to talk to you about that. Defense counsel then argued that sentencing defendant to death was wrong for various reasons, including excessiveness: The fact of the matter is John Middleton can only be killed once. And he's already under a sentence of death. ... Three sentences of death is excessive. Three sentences of death is wrong. ... He's already a condemned man and you're being asked to condemn him again and again. And that's excessive. And it's wrong. ... We're asking you to impose no additional death sentences. Additional sentences of death, it's such a waste. And to sentence a man to death three times, I will make this argument to you, it shows the same disregard for the sanctity of all human life that they claim. ... Asking for a man to be condemned again and again and again shows disregard for the sanctity of all human life that they are claiming John showed for Al, for Randy and for Stacey. ... You're never required to sentence someone to death. Never. And the jury instruction tells you that. Three sentences of death is excessive. He's a condemned man, ladies and gentlemen. You don't need to condemn him any further. As it is, he never gets out. ... Ladies and gentlemen, that's evidence to support a sentence of life no matter how ironic it sounds to you, he's still a man who is loved. He's still a man who has some value. He's adjusted well to the prison in which he's going to spend the rest of his days, however limited they are. And you don't have to take any further steps to condemn this man, ladies and gentlemen.

Questioned about her strategy, counsel testified that she thought about it a lot. She found it “ironic” that a person could receive multiple death sentences. She tried to convey that repeated death sentences serve no function, because defendant can only be killed once. “Excessiveness” was one of her themes. Defendant claims that the excessiveness argument asked the jury to spare defendant regardless of the law. He believes this constitutes ineffectiveness. See Hall v. Washington, 106 F.3d 742, 750 (7th Cir.), cert. denied, 522 U.S. 907, 118 S.Ct. 264, 139 L.Ed.2d 190 (1997). In Hall, counsel's penalty-phase argument attacked the death penalty generally, with few references to the facts of the case. Id. The court concluded the argument was unreasonable, “given its total lack of focus on Hall's individual character and record and its reliance on irrelevant religious claims.” Id.

This case is not like Hall. Here, counsel adapted the excessiveness argument to particular facts. Counsel worried that the jurors would think their penalty decision was immaterial. Therefore, she addressed the “irony” of assessing multiple death sentences. She argued that additional death penalties serve no purpose. The jurors would be showing only that defendant's life was worthless to them. In her words, it was “excessive.” In addition to excessiveness, defense counsel offered other reasons not to impose additional death sentences. She invoked mercy, weaknesses in the State's evidence, and the effect of drugs on defendant and communities generally. Counsel reasonably challenged the excessiveness of additional death penalties. She was not ineffective.

2. Appeals Process Argument

In closing, the defense argued: And it might be said that you should impose two more sentences of death to make a total of three sentences of death because maybe he won't be executed the first time around. Missouri is a killing state. We're right up there behind Texas and Florida. We kill our killers. We do that in Missouri. ... In those rare instances where you might have heard somebody under sentence of death has had their life spared, chalk it up to a higher intervention. The prosecutor responded: Ms. Davis may be real sure that this defendant isn't going to get out, but I'm not. MS. DAVIS [Defense Counsel]: Objection, personalization. Calls for speculation, Judge. THE COURT: The objection will be overruled. MS. KOCH [Prosecutor]: Ms. Davis mentioned to you about those few occasions where a person's life is spared. She didn't talk to you about the many appeals that people go through. MS. DAVIS [Defense Counsel]: Judge, I'm going to object to the levels of appeal. That's not relevant and not been in evidence in this trial. THE COURT: The objection will be overruled. Proceed. MS. KOCH [Prosecutor]: She didn't talk to you about the many different levels of appeals that these cases go through. She didn't talk to you about the Federal Court of Appeals and how often those cases get overturned on appeal because they're death penalty cases. She didn't talk to you about any of that, did she? And she didn't talk to you about escape. You heard the testimony of the unit caseworker that came in here and testified in front of you. There has been one escape from Potosi in the last three years. And what did John Middleton do when he had the opportunity in the Harrison County Jail? He tried to escape.

Defendant contends trial counsel was ineffective for opening the door to the prosecutor's response, and for not objecting on additional grounds. He also claims direct appeal counsel was ineffective for only challenging the response under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). See Middleton, 998 S.W.2d at 529–30. First, defense counsel's argument reasonably complemented her excessiveness theme. She assured the jurors that defendant would probably be executed for his prior murder conviction. The prosecutor's response properly noted that executions do not inexorably follow death sentences. Defendant contends counsel should have objected—and appellate counsel should have argued based on the objection actually made—that the prosecutor argued facts outside the record. The prosecutor, however, did not explicitly argue a fact outside the record. Instead, she alerted the jurors to the possibility that an appellate court could reverse the conviction—a correct statement of the law in response to defendant's argument. See State v. Richardson, 923 S.W.2d 301, 321 (Mo. banc), cert. denied, 519 U.S. 972, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996).

Defendant further asserts that the prosecutor implied an untrue fact—that federal courts frequently overturn death penalty convictions—when she said: “She didn't talk to you about the Federal Court of Appeals and how often those cases get overturned on appeal because they're death penalty cases.” The frequency of appellate reversal is a fact outside the record, which the prosecutor should not reference. See State v. Storey, 901 S.W.2d 886, 900–01 (Mo. banc 1995). Even so, defendant was not prejudiced. The prosecutor referred to the appellate reversal rate obliquely, if at all. If the argument had been challenged, it is not reasonably probable that defendant would have received a life sentence.

Finally, defendant argues that the prosecutor improperly suggested that he could be released if not sentenced to death. The prosecutor began her rebuttal: “Ms. Davis may be real sure that this defendant isn't going to get out, but I'm not.” In context, this preface refers to the possibility of appellate reversal—a correct statement of the law—and the possibility of escape—a reference to defendant's future dangerousness. Richardson, 923 S.W.2d at 321; State v. Chambers, 891 S.W.2d 93, 107 (Mo. banc 1994). The prosecutor could invoke these possibilities in responding to the defense. Middleton, 998 S.W.2d at 530 (“A prosecutor has considerable leeway to make retaliatory arguments in closing. A defendant may not provoke a reply and then assert error.”); State v. Roll, 942 S.W.2d 370, 378 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997). In sum, the prosecutor's argument was proper rebuttal. Neither trial nor appellate counsel was ineffective for not challenging it. To the extent that the prosecutor implied federal courts frequently reverse death sentences, Defendant was not prejudiced.

3. Impose Death for the Pinegar murder

In closing, the prosecutor argued that defendant should be held accountable for all three murders. Defendant claims this encouraged jurors to impose death for the Pinegar murder, a different crime. Therefore, he concludes counsel was ineffective in not objecting. The prosecutor properly responded to the argument that additional death sentences were excessive, by asserting that defendant should receive a death penalty for each murder. He already had a death sentence for the Pinegar murder. The prosecutor urged two more death penalties for the murders of Hamilton and Hodge. Counsel was not ineffective for not objecting.

D. Other Ineffectiveness Claims

1. Not Preserving an Objection to a Question about Defendant's Truthfulness

Dr. Lipman interviewed defendant, to evaluate his mental state. During cross-examination, the State asked him if he thought defendant lied during the interview. Dr. Lipman responded “I formed the impression that he was not being entirely truthful,” and “I believe so.... But I don't know that.” Defense counsel objected, but did not include the issue in the motion for new trial. Therefore, the issue was not preserved for appeal. Defendant claims counsel was ineffective for not preserving the issue, citing State v. Link, 25 S.W.3d 136, 143 (Mo. banc), cert. denied, 531 U.S. 1040, 121 S.Ct. 634, 148 L.Ed.2d 542 (2000). In Link, this Court noted that a witness should not generally comment on the credibility of another witness. Id. Here, defendant was not a witness—he was the subject of expert testimony. Dr. Lipman testified that personal history was “very important” to the evaluation. The State could explore the validity and weight of Lipman's opinion by inquiring whether defendant was untruthful during the interview. See State v. Brooks, 960 S.W.2d 479, 493 (Mo. banc 1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1998). The issue has no merit. Counsel was not ineffective for not preserving it. Morrow, 21 S.W.3d at 826.

2. Not Eliciting an Opinion about Defendant's Mental State from Dr. Lipman

Defense counsel did not ask Dr. Lipman if defendant could appreciate the criminality of his conduct or conform his conduct to the law. Defendant claims Dr. Lipman would have testified that he could not. This testimony could have supported another mitigating circumstance. See sec. 565.032.3(6). Thus, defendant asserts counsel was ineffective for not asking Dr. Lipman his opinion. At the post-conviction hearing, defendant's junior attorney testified that lead counsel decided which mitigators to prove. Defendant, however, never asked lead counsel why she did not pursue the section 565.032.3(6) mitigator. Thus, defendant did not prove that counsel was ineffective.

3. Asking William Worley about a Grave

On cross-examination, defense counsel asked William Worley if he had seen a “freshly dug grave” on defendant's property. Worley responded that he saw “what looked like one,” covered by boards. Defendant believes this evidence prejudiced him, suggesting he prepared to dispose of the bodies on his property. First, during guilt phase, the sheriff testified about a short trench on defendant's property, where someone was working on the sewer line. Asked if it could be a grave, the sheriff said “a short one,” and for “a short pygmy.” Thus, the jury heard that the trench was not a grave. Second, defendant takes Worley's testimony out of context. Defense counsel elicited the information while requesting that Worley tell weird things defendant did. For example, defendant talked about “people out in the woods” (who Worley never saw), and defendant walked around his yard picking up cellophane drug packages (which were not there). Unlike the evidence in United States v. Villalpando, 259 F.3d 934, 939 (8th Cir.2001), and State v. McCarter, 883 S.W.2d 75, 79 (Mo.App.1994), this information either was innocuous, or supported defendant's mitigation theory. If the jury believed the sheriff, the “grave” was repair work. If the jury believed Worley, the “grave” supported counsel's argument—elaborated in closing—that drugs had made defendant “weird” and “bizarre.” Counsel was not ineffective in eliciting this information.

4. Not Objecting to Question Suggesting Defendant Escaped from Jail Twice

In cross-examining defendant's prison case-worker, the prosecutor asked: “And are you aware that [defendant] had two escape attempts while he was in Harrison County jail?” The case-worker replied “No.” Defendant contends counsel was ineffective for not objecting, because the evidence showed only one escape attempt. Although the evidence indicated one attempt, defendant was not prejudiced. The errant reference to a second escape attempt was isolated. If counsel had objected, it is not reasonably probable that defendant would have received a life sentence.

5. Not Objecting to Closing Argument about Society's Drug Problem

In closing, the prosecutor argued: Another reason you need to give him the death penalty for both of these crimes is because you have heard a lot about drugs, not only in this trial about methamphetamine but you've probably heard on the news how bad the methamphetamine problem is. Hear all the time about labs getting shut down and how the problem keeps growing. Well, what kind of message do you send to those drug dealers out there— The court overruled defense counsel's objection that the argument improperly invaded the province of the jury. The prosecutor continued: What kind of message do you send to those drug dealers out there who are [ sic ] keeling methamphetamine who are afraid of going to jail, afraid of getting caught when you give somebody life without parole? Not a very strong message. But you know something? When you give them the highest punishment this state has to offer, which is the death penalty, you send a message. You send a message clear and loud. We're not going to tolerate drugs and we're not going to tolerate anybody who kills because of drugs. And that's why you need to give this man, not one, but finish that circle and give him two more death penalties. Do it as an insurance policy and do it so that everybody in the northeast Missouri will know that the people of Missouri are not going to tolerate people killing to save themselves from going to jail. Because that's exactly what this man did. Exactly what he did.

Defendant asserts this argument invited the jury to sentence him to death for drug dealing—a non-capital crime. He claims counsel should have objected throughout this argument. By objecting only once, counsel was ineffective. This claim fails. First, the court overruled counsel's first objection. Repeated objections may alienate jurors, or highlight the complained-of argument. See State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc), cert. denied, 519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). Second, the overruled objection was not appealed. Middleton, 998 S.W.2d at 529–30. Since defendant chose not to pursue the issue on appeal, additional objections would not have helped. Finally, although the prosecutor initially inferred that mere drug dealing warranted capital punishment, the prosecutor soon clarified that persons who murder to facilitate drug dealing, or to avoid going to jail, deserve the death penalty. See secs. 565.032.2(10), (14), (15), (16). Thus, as a whole, the argument was proper. In sum, counsel was not ineffective for not objecting throughout the quoted portion of closing argument.

6. Not Objecting to the End of the Prosecutor's Closing Argument

The prosecutor finished her closing argument by saying: It's your decision, ladies and gentlemen, but justice here absolutely demands that these two people's deaths are avenged and that they, this defendant get the death penalty for it, the highest punishment you can give for a crime like this. If you can't give the death penalty for this crime, what kind of crimes are you going to give the death penalty for? Defendant contends this argument relied on facts outside the record, and counsel was ineffective for not objecting. In State v. Storey, this Court concluded that a prosecutor improperly called a crime “the most brutal slaying in the history of this county.” 901 S.W.2d at 900–01. That argument was improper because “[t]here was no evidence about the brutality of other murders in the county.” Id. at 901. Here, the prosecutor asked an open-ended question, inviting the jurors to consider the appropriate punishment for the crime. The prosecutor did not, however, compare this crime to other, unproven crimes. The prosecutor did not refer to facts outside the record. Therefore, counsel was not ineffective for not objecting. See Simmons, 955 S.W.2d at 774 (counsel was not ineffective for not objecting to similar arguments: “if all these decisions aren't cool reflection on you want this person to die, then let me tell you nothing ever is”; and “If not in this brutal murder case, if not with this piece of evidence, then when?”).

IV. Clemency

Defendant claims Missouri's clemency process is arbitrary and capricious. However, he has not yet requested clemency. His challenge is not ripe for review. See Missouri Health Care Ass'n v. Attorney General, 953 S.W.2d 617, 621 (Mo. banc 1997).

V. Conclusion

The judgment is affirmed. LIMBAUGH, C.J., WOLFF, LAURA DENVIR STITH, PRICE, and TEITELMAN, JJ., and JAMES R. DOWD, Sp.J., concur. WHITE, J., not participating.
 

Middleton v. State, 103 S.W.3d 726 (Mo. 2003). (PCR-Pinegar Murder)

After the affirmance of his conviction for first-degree murder and death sentence, 995 S.W.2d 443, defendant brought motion for postconviction relief. The Circuit Court, Adair County, Russell E. Steele, J., denied the motion. Defendant appealed. The Supreme Court, Laura Denvir Stith, J., held that: (1) defendant did not establish the prosecution's failure to disclose its “deal” with prosecution witness; (2) disqualification of prospective juror for cause was not warranted; (3) counsel was not ineffective in failing to present mental health defense at guilt phase or in presenting mitigation evidence at penalty phase; and (4) prosecutor's closing argument at penalty phase was proper. Affirmed.

LAURA DENVIR STITH, Judge.

John J. Middleton appeals from the denial of post-conviction relief from his conviction and death sentence for the first-degree murder of Alfred Pinegar. He alleges the state had an undisclosed deal with one of the key witnesses for the prosecution. He further alleges that trial counsel were ineffective in failing to challenge a juror during voir dire, in choosing not to present a diminished capacity defense in the guilt phase, in failing to present certain mitigating evidence, and in failing to object (1) to the admission of certain evidence, (2) to certain statements in closing argument, and (3) to certain jury instructions. Finally, he alleges that appellate counsel were ineffective in failing to raise an alleged conflict of interest on the part of one of his early trial counsel whom he claimed also represented a witness against him and in failing to object to the omission of the word “knowingly” from the portion of the penalty phase instructions that submitted that the killing of Mr. Pinegar was part of an attempt by Mr. Middleton to conceal his activities as a drug dealer. For the reasons set out below, this Court finds that the motion court did not err in denying post-conviction relief. Affirmed.

I. BACKGROUND FACTS

FN1. The facts concerning the murder of Alfred Pinegar were set out in detail in this Court's opinion on direct appeal of Mr. Middleton's conviction and death sentence, State v. Middleton, 995 S.W.2d 443 (Mo. banc 1999), cert. denied, 528 U.S. 1054, 120 S.Ct. 598, 145 L.Ed.2d 497 (1999). The Court repeats these facts here without quotation marks and with only minor stylistic changes and the addition of factual and procedural developments since the direct appeal was decided.

John Middleton was a user and dealer of methamphetamine. On June 10, 1995, police arrested several people in Harrison County, Missouri, for possession and sale of the drug. Mr. Middleton was not one of the people arrested. About ten days after the Harrison County arrests, Mr. Middleton told a friend that “the snitches around here are going to start going down.” Mr. Middleton stated that he had a “hit list” and that Mr. Pinegar was on it. Two days after making these statements, Mr. Middleton told the same friend that he was “on his way to Ridgeway, Missouri, to take Alfred Pinegar fishing.”

Alfred Pinegar was also a dealer of methamphetamine and was associated with Mr. Middleton as a fellow drug dealer. He lived with his fiancée, Priscilla Hobbs, in Davis City, Iowa, just north of Harrison County, Missouri. On June 23, 1995, the day of Mr. Pinegar's murder, Ms. Hobbs was driving toward her home in Davis City when she saw Mr. Middleton and his girlfriend Maggie Hodges in a white Chevrolet 4x4 pickup traveling in the opposite direction. Priscilla Hobbs noticed that Maggie Hodges was sitting in the middle of the truck seat instead of in the right passenger's seat. When Ms. Hobbs reached her home, Mr. Pinegar was not there and the yard had been partly mowed, as if he stopped in the middle of the job. Mr. Pinegar habitually carried a twelve-gauge shotgun, and that shotgun and about $200 were missing from the home.

Around noon that same day, Wesley Booth was working in the sporting goods department of a Wal–Mart store in Bethany, Missouri. He was approached by Ms. Hodges, Mr. Middleton, and another man, presumably Mr. Pinegar. Mr. Middleton asked Mr. Booth for six boxes of nine-millimeter shells and two boxes of twelve-gauge “double-ought” buckshot. Mr. Middleton paid cash for the ammunition. During the entire transaction, Mr. Middleton was standing at the counter across from Mr. Booth. Mr. Middleton, Ms. Hodges, and Mr. Pinegar left Wal–Mart and drove several miles northeast of Bethany near the town of Ridgeway where they parked in a field. Mr. Pinegar got out of the truck and began to run when he saw Mr. Middleton raise the twelve-gauge shotgun. Mr. Middleton shot Mr. Pinegar twice in the back. Mr. Middleton then delivered the fatal wound to Mr. Pinegar, shooting him in the face. Mr. Middleton dumped Mr. Pinegar's body over a fence. After committing the murder, Mr. Middleton and Ms. Hodges went back to the Wal–Mart store in Bethany to return the nine-millimeter ammunition. They did not return the twelve-gauge “double-ought” shotgun shells. Mr. Booth walked with Mr. Middleton to the sporting goods department, where he exchanged the nine-millimeter shells for ammunition of another caliber. The two then walked back to the service desk to complete the exchange.

Later that afternoon, Gerald Parkhurst saw Mr. Middleton and Ms. Hodges standing next to their pickup on the side of a road north of Bethany. Claiming their pickup had broken down, Ms. Hodges asked Mr. Parkhurst if he would give them a ride. When Mr. Parkhurst agreed to give them a ride, they transferred five or six firearms to the trunk of Mr. Parkhurst's car, including the twelve-gauge shotgun Mr. Middleton had used to kill Pinegar. Mr. Parkhurst took the two to Spickard, Missouri, where they unloaded the weapons.

Two days after the murder, John Thomas visited Mr. Middleton at his home. Mr. Middleton and Mr. Thomas discussed possible undercover drug informants, and Mr. Middleton stated that “something had to be done about them.” Mr. Middleton also told Mr. Thomas that he had acquired Mr. Pinegar's twelve-gauge shotgun and that Mr. Pinegar “wouldn't be needing it no more.” Mr. Thomas drove Mr. Middleton to the place were the pickup truck had broken down, helped him remove a defective part, and then Mr. Middleton drove the truck away. The next day, on June 26, 1995, Mr. Pinegar's body was found. At the murder scene, police found a piece of leather fringe, an empty box of twelve-gauge shotgun shells, two expended twelve-gauge shells, a pair of sunglasses with a missing lens, and a small plastic clock with an adhesive square on the back of it.

Later, on September 11, 1995, while Mr. Middleton was in jail, Mr. Middleton told Douglas Stallsworth, a fellow inmate, that he killed Mr. Pinegar because he was afraid that Mr. Pinegar was going to “snitch” on him about his methamphetamine dealing. Mr. Middleton described the details of Mr. Pinegar's murder. He also told Mr. Stallsworth that some fringe was missing from his leather jacket and he was worried that it had been left at the murder scene.

Mr. Middleton was charged by information with first-degree murder and armed criminal action on October 18, 1995, in the Circuit Court of Harrison County. The prosecutor later voluntarily withdrew the charge of armed criminal action. Following a change of venue to Adair County, the case went to trial on February 24, 1997. Mr. Middleton did not testify at his trial and offered no evidence in his defense. The state presented evidence that Mr. Middleton killed Alfred Pinegar in order to keep him quiet about Mr. Middleton's drug activity. Its evidence included the testimony of John Thomas and Doug Stallsworth, that Mr. Middleton admitted the murder. The jury found Mr. Middleton guilty of first-degree murder.

In the punishment phase of the trial the state presented evidence that Mr. Middleton had also murdered Randy Hamilton and Stacey Hodge, as part of his plan to eliminate “snitches” and that Mr. Pinegar's murder was wantonly vile, horrible, and inhuman, involving depravity of mind. The jury recommended a death sentence. The circuit court sentenced Mr. Middleton to death in accordance with the jury recommendation.

A few weeks later, Mr. Middleton was tried in Callaway County on two counts of first-degree murder and two counts of armed criminal action for killing Randy Hamilton and Stacey Hodge. He was convicted of both murders and received death sentences for those murders also. This Court affirmed Mr. Middleton's conviction of the murder of Mr. Pinegar on direct appeal in State v. Middleton, 995 S.W.2d 443 (Mo. banc 1999), cert. denied, 528 U.S. 1054, 120 S.Ct. 598, 145 L.Ed.2d 497 (1999). This Court also affirmed Mr. Middleton's capital murder convictions arising out of the Callaway County case, see State v. Middleton, 998 S.W.2d 520 (Mo. banc 1999), cert. denied, 528 U.S. 1167, 120 S.Ct. 1189, 145 L.Ed.2d 1094 (2000) (Callaway County case). Last year this Court denied Middleton's post-conviction relief claims in the Callaway County case in Middleton v. State, 80 S.W.3d 799 (Mo. banc 2002). In the instant case, Mr. Middleton is appealing the motion court's denial of post-conviction relief under Rule 29.15, after an evidentiary hearing, from his conviction for the murder of Mr. Pinegar. This Court has exclusive jurisdiction. Mo. Const. art. V, sec. 10; Order of June 16, 1988.

II. STANDARDS FOR GRANT AND REVIEW OF POST–CONVICTION RELIEF

To be entitled to post-conviction relief, Mr. Middleton was required to show by a preponderance of the evidence that: (1) trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and (2) counsel's deficient performance prejudiced the defense. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002), citing, Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Mr. Middleton bears a heavy burden in establishing the first prong of the standard by a preponderance of the evidence, for he must overcome a strong presumption that counsel provided competent assistance. Rule 29.15(i); Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc 1992), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). He must show “that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To do this, Mr. Middleton must identify specific acts or omissions of counsel that resulted from unreasonable professional judgment, and the “court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance.” Id. at 690, 104 S.Ct. 2052.

In regard to the second prong of the Strickland test, an “error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. 2052. For this reason, Mr. Middleton must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. This Court reviews the motion court's findings and conclusions for clear error. Rule 29.15(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Id. at 511.

III. GUILT PHASE ERRORS

Mr. Middleton alleges that a number of errors occurred in the guilt phase of the trial that merit post-conviction relief.

A. Undisclosed Deal

Mr. Middleton asserts that the prosecution had an undisclosed and unwritten “deal” that one of the prosecution witnesses, John Thomas, would receive lenient treatment on certain charges pending in Harrison County, Missouri, in return for testimony implicating Mr. Middleton. He further asserts that the prosecution failed to disclose this deal to the defense as required under Missouri and federal law. The state says the defense was aware that Mr. Thomas had pending charges at the time he testified and denies the existence of an undisclosed deal. “Prosecutors must disclose, even without a request, exculpatory evidence, including evidence that may be used to impeach a government witness.” State v. Robinson, 835 S.W.2d 303, 306 (Mo. banc 1992). See also Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rule 25.03. Promises of leniency or other “deals” with witnesses are among the types of evidence that must be disclosed under these rules. Hutchison v. State, 59 S.W.3d 494, 496 (Mo. banc 2001).

The record does not support Mr. Middleton's assertion that the motion court clearly erred in failing to find the existence of an undisclosed deal with John Thomas in return for his testimony. The record shows that, on June 8, 1995, Mr. Thomas was charged with selling methamphetamine, a class B felony, in Harrison County. A February 27, 1998, docket entry in that case recites: ¨A appears with counsel, Mr. Gary Allen, and waives preliminary hearing in open court. State appears by Ms. Chris Stallings, and state advises delay in prosecution due to Ä's participation as witness in companion proceedings. Ä band [sic] over to Div. I and to appear at 9 a.m., March 17, 1998, and file to be certified to said division. On March 4, 1997, Mr. Thomas testified as a witness for the state in Mr. Middleton's murder trial. At trial, defense counsel was aware of and cross-examined Mr. Thomas about these charges and about the existence of any deal. Mr. Thomas denied that such a deal existed. Mr. Middleton was convicted.

In support of his motion for post-conviction relief, Mr. Middleton offered additional evidence that on March 17, 1998, two weeks after his trial testimony, Mr. Thomas waived arraignment and pled not guilty to the pending charges against him, including the Class B felony charge of selling methamphetamine. Two weeks later, on March 31, 1998, Mr. Thomas testified in Mr. Middleton's separate Callaway County trial for the murders of Randy Hamilton and Stacey Hodge. The next month, Mr. Thomas pled guilty to a lesser charge of attempting to sell drugs, a class C felony. On September 10, 1998, the court suspended imposition of sentence, placing Mr. Thomas on five years of supervised probation. Mr. Middleton also offered evidence that the Harrison County prosecutor's office did not give defense counsel an answer when counsel asked why Mr. Thomas's case was still pending after two years.

Mr. Middleton says this evidence was sufficient to show the existence of an undisclosed deal by which the charges against Mr. Thomas and his punishment would be reduced in return for his testimony against Mr. Middleton. But, assuming that Mr. Middleton is correct that the motion court could have drawn such an inference from this evidence, Mr. Middleton has failed to show that the motion court erred in drawing a contrary inference that the evidence, while showing that Mr. Thomas received a light sentence and that the Harrison County prosecutor might have been more forthcoming, did not reach the level of showing an undisclosed deal existed. FN2. On appeal of denial of post-conviction relief in the Callaway County case, Middleton v. State, 80 S.W.3d 799, 805 (Mo. banc 2002), this Court also rejected Mr. Middleton's very similar claim regarding the state's alleged failure to reveal a deal with Mr. Thomas, finding, as the Court does here, that the record did not support Mr. Middleton's claim that there was an “understanding” between prosecutors and Mr. Thomas that he would receive leniency for testifying against Mr. Middleton in Mr. Middleton's Callaway County murder trial. The only evidence offered here that was not offered in that case is the evidence of the Harrison County prosecutor's silence when asked why Mr. Thomas' sentencing was delayed for two years. This additional evidence does not require a different result.

B. Ineffectiveness of Trial Counsel

1. Juror Carol Holt

Mr. Middleton claims that his trial counsel knew during voir dire that his penalty phase strategy would be based on his claim that he was suffering from a methamphetamine psychosis at the time he murdered Mr. Pinegar. He claims that trial counsel was ineffective for failing to move to strike for cause or peremptorily remove juror Carol Holt based on her answers to voir dire questions that he alleges indicated that she was unwilling to consider mental health evidence as mitigating evidence.

A prospective juror may be excluded for cause only if the juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. State v. Rousan, 961 S.W.2d 831, 839 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). The qualifications of a prospective juror are not determined conclusively by focusing on a single response, but are considered in the context of the entire examination. Middleton, 995 S.W.2d at 460. Mr. Middleton points to the following exchange between defense counsel and Ms. Holt in support of his argument: Q. Is your view of the death penalty—do you have strong views on the death penalty? A. Yes. I think that I agree with this lady here in the green pants. Q. Ms. Adams? A. Yeah. We're talking in generalities right now, and we haven't discussed exactly what we're talking about. And I think sometimes we have to view what the circumstances are before we can say what we would choose to do. Q. We're not asking you to tell us what you would choose to do. And I understand, it's frustrating. And I understand your frustration. And it's a difficult thing to question people about, but we need to have an idea of people's views on this issue. A. I understand. You've had some really difficult questions and we're talking about something very serious. It's a tremendous responsibility. And to just say what I think I would do in that situation would be you can't really know until you view all of those things. And there are certain situations, certain circumstances that don't warrant the death penalty and I think there are some that do. Q. Do you think—And I'll ask you some of the questions I've asked others about mitigating factors. Do you think if you were asked to evaluate mitigating factors, that mental health type of evidence is something you could consider? A. Yes. I think I could, but I also think that sometimes it's used by lawyers to manipulate the system. You know what I'm saying? And I think that you have to really look at all the evidence and all of the things that are posed to you. But I think, yes, there are some. There are not as many as what we allow, I think. Q. And it sounds like you're saying what you said earlier, that sometimes you need to really evaluate something before you can know how you can react? A. Yes. Q. Do you think if you were asked to consider, as mitigation, issues of drug and alcohol use, is that something you could consider? A. I can't say for sure. I can't say—I can say “yes” but I just don't know. Mr. Middleton contends that this exchange shows that Juror Holt was unwilling to or unsure she could consider evidence supporting his defense that he was not fully responsible for his acts because he was suffering from methamphetamine psychosis at the time of the crime. But, the exchange does not so demonstrate.

Defense counsel first asked Juror Holt generally about whether she could consider mental health evidence as a mitigating factor. She said she could, but some uses of it she believed went too far. Counsel then asked whether she could consider drug and alcohol use in particular as evidence in mitigation, and she said she could not say for sure. If general use of drugs and alcohol was itself a statutory mitigating circumstance, this would be a cause for concern. But, drug or alcohol use constitutes a statutory mitigating circumstance only if it rises to the level of causing a psychosis. See sec. 565.032. Juror Holt was not asked, and did not state, that she would not consider the fact defendant suffered from drug or alcohol psychosis as a mitigating factor if the law so required, or that she would not follow the law in this regard. “The relevant inquiry is whether a prospective juror can follow the law.” State v. Chaney, 967 S.W.2d 47, 57 (Mo. banc 1998), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). In effect, defense counsel suggests that, because defendant planned to argue that his use of alcohol and drugs should be considered as mitigating, therefore he had a right to ask each juror to commit that they would in fact consider such drug or alcohol use to be mitigating. But, the relevant law and penalty phase jury instructions only require that a juror “shall consider any evidence which he considers to be aggravating or mitigating.” FN3 They do not require the juror to specify, in advance of the evidence, which evidence he thinks he will consider to be aggravating or mitigating. Juror Holt was not required to commit at the voir dire stage that she would consider evidence of alcohol and drug use in mitigation of punishment. Counsel was not ineffective for failing to move to strike her for cause. FN3. Sec. 565.032.1(2)

Because Juror Holt was qualified, Mr. Middleton cannot show that he was prejudiced by counsel's decision not to peremptorily remove her from the jury. Mr. Middleton was only entitled to a panel of jurors who were qualified, not to his favorite jurors among those who were qualified. Ham v. State, 7 S.W.3d 433, 438–440 (Mo.App. W.D.1999). He has not shown that it is reasonably probable that the result of the trial would have been different had another venire member sat on the jury in the place of Juror Holt.

2. Required Mental State for First–Degree Murder

In the guilt phase, Mr. Middleton's defense focused on a claim that he was innocent of the killings. Once he was convicted, in the penalty phase his counsel relied on the testimony of Dr. Lipman, a neuropharmacologist, and Dr. Murphy, a psychologist. Dr. Lipman testified that Mr. Middleton's chronic methamphetamine abuse caused symptoms functionally identical to paranoid schizophrenia. Dr. Murphy testified that Mr. Middleton's methamphetamine use caused an organic paranoid thought disorder that caused him to be psychotic. Mr. Middleton claims that his attorneys were ineffective for not also calling Dr. Lipman and Dr. Murphy, as well as Dr. Daniel, a psychiatrist, in the guilt phase in support of an argument that, due to his drug use and resulting brain damage, he lacked the deliberative capacity required for first-degree murder. He also alleges they were ineffective for presenting different, and inconsistent, theories in the guilt and penalty phases. The record at the post-conviction hearing showed that defense counsel knew of Dr. Lipman and Dr. Murphy and their probable testimony and investigated using diminished capacity and not-guilty-by-reason-of-insanity defenses in the guilt phase, but made a specific strategic decision not to offer these defenses, and to instead attempt to win an acquittal by attacking the credibility of the state's witnesses and arguing the insufficiency of the evidence.

Where counsel has investigated possible strategies, courts should rarely second-guess counsel's actual choices. Trial counsel is normally in the best position to assess the tradeoffs involved in selecting particular defenses. Thus, while maintaining a consistent theory throughout trial may often be the best approach, see State v. Harris, 870 S.W.2d 798, 816 (Mo. banc), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994), at other times it may be prudent to change strategies to accommodate trial developments. See Clayton v. State, 63 S.W.3d 201, 206–07 (Mo. banc 2001), cert. denied, 535 U.S. 1118, 122 S.Ct. 2341, 153 L.Ed.2d 169 (2002). These types of strategic choices, “made after thorough investigation are virtually unchallengeable.” See Lyons v. State, 39 S.W.3d 32, 39 (Mo. banc), cert. denied, 534 U.S. 976, 122 S.Ct. 402, 151 L.Ed.2d 305 (2001).

Here, the motion court did not err in concluding that trial counsel did not act unreasonably in making the strategy decision not to assert that Mr. Middleton lacked the required mental state during the guilt phase. Defense counsel testified that Mr. Middleton did not want them to present either a diminished capacity or a not-guilty-by-reason-of-insanity defense in the guilt phase and that he was adamant about his innocence. They testified that Mr. Middleton threatened to act up if they ever attempted to tell the jury he was responsible for Mr. Pinegar's death during the guilt phase. Counsel further testified that they did not present these defenses in the guilt phase because they believed that arguing innocence might be effective and feared that use of a lack-of-mental-state defense would distract from and might be inherently inconsistent with Mr. Middleton's insistence on an innocence defense. Finally, the Court notes that, after reviewing possible trial strategies, and for similar reasons, Mr. Middleton's independent counsel in the Callaway County case determined that the approach taken in the instant case was the best approach to take in that case also. See Middleton, 80 S.W.3d at 806. Defense counsel were not ineffective in choosing this defense just because the jury came back with a guilty verdict. The court did not err in rejecting this ground for post-conviction relief.

C. Ineffectiveness of Appellate Counsel

Prior to trial, Mr. Middleton unsuccessfully sought to exclude the testimony of state witness Doug Stallsworth on the basis that public defender Darren Wallace of the Chillicothe Public Defender's Office allegedly represented both Mr. Middleton and Mr. Stallsworth when Mr. Stallsworth furnished the state with evidence that incriminated Mr. Middleton. Mr. Middleton claims appellate counsel was ineffective for not raising this claim of error on direct appeal.FN4 FN4. Mr. Middleton's in limine motion to exclude the testimony of Bobby Henderson and Danny Spurling on the same basis was also unsuccessful, but Mr. Stallsworth was the only one of the three that actually testified at trial.

Here, the record does not support Mr. Middleton's claim that Mr. Wallace was representing Mr. Middleton at the time Mr. Stallsworth furnished the state with evidence that incriminated Mr. Middleton. Rather, it reveals that Mr. Wallace was permitted to withdraw as Mr. Middleton's counsel on July 27, 1995. That same day, new counsel from the central unit capital division office of the public defender entered an appearance for Mr. Middleton. So far as the record shows, Mr. Stallsworth did not furnish law enforcement with the incriminating evidence until September 19, 1995, almost two months later. For this reason, appellate counsel would not have been successful in arguing that the trial court erred in admitting the testimony of Mr. Stallsworth. Thus, counsel was not ineffective in choosing not to raise this point on appeal.

IV. PENALTY PHASE

A. Failure of Trial Counsel to Present Mitigating Evidence

1. Mitigating Evidence Testimony of Employer and Family.

Mr. Middleton claims that counsel was ineffective for not contacting and presenting the testimony of four former employers and two family members, an aunt and an uncle. Counsel are not ineffective so long as their investigation is reasonable. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Here, counsel conducted a reasonable investigation that culminated in a reasonable penalty phase defense. Not only did counsel speak with Mr. Middleton on several occasions prior to trial, they contacted his mother, contacted several of Mr. Middleton's recent friends and acquaintances, engaged the aid of two mental health experts, and contacted the sheriff of Adair County, where Mr. Middleton was held during the course of the trial.

Based upon this investigation, counsel determined that their best strategy in the penalty phase was to elicit testimony that would establish Mr. Middleton was under a methamphetamine-induced psychosis at the time of the killing. To this end, counsel presented the testimony of two mental health experts, Mr. Middleton's mother, his brother-in-law, and a friend, all providing testimony to support Mr. Middleton's drug-induced psychosis defense. In an attempt to show that Mr. Middleton was amenable to incarceration, counsel elicited testimony from the sheriff of Adair County, who, having supervised Mr. Middleton during the course of his trial, testified to his ability to adjust to incarceration. The additional witnesses that Mr. Middleton says should have been contacted and called to testify would have stated that Mr. Middleton always had limited cognitive abilities, even before his heavy drug use. In addition, the former employers would have testified that he was a good worker. Mr. Middleton's aunt and uncle would have added that his mother had a habit of inhaling gas fumes when she was a child and that his mother and her boyfriend took him to bars as a child.

Defense counsels' decision not to present this additional evidence did not require a finding by the motion court that counsel were ineffective. Counsel testified that because their strategy was to present evidence supporting a defense of methamphetamine-induced psychosis, they were not interested in “good employee” evidence. Counsel cannot be said to have been ineffective in making reasonable strategic choices and decisions as to what evidence to present. See Lyons, 39 S.W.3d at 39. The testimony that Mr. Middleton's aunt and uncle would have provided largely would have duplicated much of Mr. Middleton's mother's and Dr. Lipman's testimony regarding Mr. Middleton's childhood and mental slowness. For this reason, the cases cited by appellant in which counsel did little or no investigation and presented little or no mitigating evidence are not on point. Counsel in Mr. Middleton's case cannot be said to be ineffective for not presenting cumulative evidence about Mr. Middleton's childhood and mental condition. Skillicorn v. State, 22 S.W.3d 678, 683 (Mo. banc 2000), cert. denied, 531 U.S. 1039, 121 S.Ct. 630, 148 L.Ed.2d 538 (2000). FN5. For similar reasons, this Court rejected Mr. Middleton's augment in the Callaway County case, Middleton, 80 S.W.3d at 809, that defense counsel were ineffective for failing to present similar testimony. The Court further notes that here, unlike in the Callaway County case, defense counsel did present testimony from Mr. Middleton's mother. In both cases, the jury came back with a recommendation that the death penalty be imposed.

2. Good Conduct During Prior Confinement.

Mr. Middleton argues that counsel was ineffective for not contacting Mr. Middleton's Iowa corrections counselor and for not introducing his Iowa corrections records because this would have shown good conduct in Iowa prisons and, thus, would have supported the argument that life imprisonment rather than death would be an appropriate punishment. Counsel in Mr. Middleton's Callaway County trial for the murders of Mr. Hamilton and Ms. Hodge also failed to introduce evidence concerning Mr. Middleton's conduct while imprisoned in Iowa. What this Court said in that case on appeal in affirming denial of post-conviction relief is equally applicable here. In both cases, counsel chose to introduce evidence of Mr. Middleton's good conduct at a Missouri correctional facility. Such evidence was more recent in time than the Iowa evidence and made the same point. For this reason: Counsel was not ineffective. The Iowa evidence mirrored the Missouri evidence, which showed that defendant can behave in prison. Also, the Iowa evidence would have emphasized his Iowa convictions. Counsel reasonably chose not to introduce cumulative evidence of defendant's good behavior in prison. Middleton, 80 S.W.3d at 810. This same analysis applies here. Counsel was not ineffective in failing to introduce the evidence of defendant's behavior while in prison in Iowa. Skillicorn, 22 S.W.3d at 683.

B. Failure to Object of Trial Counsel and Related Errors

1. “P.S. She'll write or I'll sell this address.”

During the penalty phase, defense counsel called Mr. Middleton's brother-in-law, Paul Oglesbee, who was married to Mr. Middleton's sister Rose, to describe the symptoms that he observed Mr. Middleton display when Mr. Middleton was a user of methamphetamine. On cross-examination, the state, attempting to show that Mr. Middleton continued to be aggressive even after he stopped using methamphetamine, questioned Mr. Oglesbee about a letter that Mr. Middleton wrote the Oglesbees that contained the phrase, “P.S. She'll write or I'll sell this address.” During cross-examination, Mr. Oglesbee testified that he believed that Mr. Middleton meant this phrase to be a threat—that he was “putting a contract on us for a hit.”

Mr. Middleton contends that the motion court clearly erred in denying multiple claims related to the prosecution's use of the letter. First, he argues that counsel was ineffective for failing to object to Mr. Oglesbee's testimony that he and his wife thought the phrase meant that Mr. Middleton was going to place a hit on them. Much of his argument presupposes that the phrase did not constitute a threat. Clearly, however, Mr. Oglesbee believed it was a threat. In considering capital punishment, the jury is entitled to a wide range of helpful information. State v. Morrow, 968 S.W.2d 100, 114–15 (Mo. banc), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182 (1998). See also State v. Gilyard, 979 S.W.2d 138, 143 (Mo. banc 1998). “The decision to impose the death penalty ... is the most serious decision society makes about an individual, and the decision-maker is entitled to any evidence that assists in that determination.” State v. Debler, 856 S.W.2d 641, 656 (Mo. banc 1993). Evidence that Mr. Middleton made such a threat was relevant and admissible on the issue of defendant's character. See State v. Clay, 975 S.W.2d 121, 132 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999).

Second, Mr. Middleton alleges counsel was ineffective for failing to refute Mr. Oglesbee's testimony by calling Brian Fifer, who was a fellow inmate of Mr. Middleton's when Mr. Middleton was incarcerated in Iowa. He alleges that Mr. Fifer would have testified that the phrase “I'll sell this address” is not a threat, but is merely jailhouse slang for “if you don't write me back, I will not continue to write you.” This claim is also without merit. As this Court ruled in rejecting an identical claim on appeal of denial of relief in the Callaway County case: Defendant [Mr. Middleton] introduced no evidence that he told, or that his counsel should have known, that “sell this address” was not a threat. Without knowing (or being told by defendant) that the phrase had unique meaning among prisoners, counsel had no reason to question other prisoners. Counsel was not ineffective for not finding this witness [Brian Fifer]. Middleton, 80 S.W.3d at 810. Here, also, Mr. Middleton has offered no evidence that he told counsel that “sell this address” was not a threat or that he informed counsel about the existence of Mr. Fifer and the latter's ability and willingness to testify. Accordingly, the court did not err in finding counsel was not ineffective in failing to call Mr. Fifer.

Third, Mr. Middleton claims that the letter constituted non-statutory aggravating circumstances that he should have had prior notice of, but was not informed of until the day of Mr. Oglesbee's testimony, and therefore it should not have been admitted. This constitutes a claim of trial error in admission of the document. Such claims must be raised on direct appeal and are not cognizable in a post-conviction motion. State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997), cert. denied, 523 U.S. 1052, 118 S.Ct. 1374, 140 L.Ed.2d 522 (1998). Finally, perhaps because he is aware of this rule, Mr. Middleton also alleges that appellate counsel was ineffective for failing to argue on appeal that he was prejudiced by the prosecution's late disclosure of the letter. But, the trial judge addressed this issue and determined that the letter was timely disclosed as soon as the prosecution received it and that defense counsel had been made aware of the letter and its contents during the Oglesbees' depositions. Mr. Middleton offers no reason why the trial judge's determination of timely disclosure was erroneous and, if raised, would have led to reversal.

2. Evidence of Other Murders.

Mr. Middleton claims that counsel was ineffective for failing to object to certain statements by the prosecution in penalty phase opening statement and closing argument, and to the testimony of certain penalty phase witnesses, that referred to the murders of Mr. Hamilton and Ms. Hodge. He argued that this argument and testimony was inadmissible and improper because he had not yet been convicted of the Hamilton and Hodge murders at the time of his trial for the murder of Mr. Pinegar. On direct appeal, Mr. Middleton claimed error in overruling his counsels' objection to admission of other evidence of the Hamilton and Hodge murders. FN6 This Court rejected that argument, holding: “The evidence in question was used to help the jury to understand the prior acts of Middleton for the purpose of determining punishment for the murder of Pinegar. See [ State v.] Parker, 886 S.W.2d [908] at 924 [ (Mo. banc 1994) ]; State v. Leisure, 749 S.W.2d 366, 378–79 (Mo. banc 1988). The trial court did not abuse its discretion by admitting this evidence.” Middleton, 995 S.W.2d at 463. Similarly, here, the evidence that Mr. Middleton now says counsel should have objected to was relevant to defendant's character and was admissible on that basis. See, e.g., Morrow, 968 S.W.2d at 114–15. Counsel cannot be deemed ineffective for failing to make a meritless objection. Clay, 975 S.W.2d at 136. FN6. Specifically, Mr. Middleton objected to the admission of a videotape of the crime scene where the bodies of Stacey Hodge and Randy Hamilton were found and a photograph of Stacy Hodge's body.

3. Credibility Evidence.

Mr. Middleton also argues trial counsel was ineffective in failing to object to a series of answers given by defense expert Dr. Lipman during cross-examination by the prosecutor, relating to whether Dr. Lipman believed defendant's statements made to him during an interview Dr. Lipman conducted during psychiatric testing of Mr. Middleton, because they required the expert to usurp the role of the jury in determining witness credibility. Dr. Lipman said that he believed that “He was lying about—in my opinion—the things that he was doing at the times those killings occurred....”

While counsel did not object to admission of this testimony at trial, counsel did object to similar testimony by another expert, Dr. Murphy, that the doctor thought Mr. Middleton was lying when discussing the murders. This Court found no error in admission of this evidence because it concerned Mr. Middleton's truthfulness in answering the doctor's questions, not his truthfulness at trial. This Court noted that counsel for defendant had opened the door to this testimony by eliciting testimony on direct examination that Dr. Murphy did not see any evidence of malingering or faking when interviewing Mr. Middleton. The judge, therefore, properly permitted the state to explore the doctor's opinions about Mr. Middleton's truthfulness on cross-examination. Middleton, 995 S.W.2d at 458–59.

Here, counsel did not object to the admission of similar cross-examination of Dr. Lipman, but had counsel done so the result would have been the same. Because the testimony did not concern Mr. Middleton's veracity at trial but rather Dr. Lipman's assessment of whether he believed what he was told during psychological testing, and because defense counsel opened the door to such evidence by asking about Mr. Middleton's credibility, it was a proper subject of cross-examination, and counsel was not ineffective in failing to object to it. Id.; State v. Barnett, 980 S.W.2d 297, 307 (Mo. banc 1998), cert. denied, 525 U.S. 1161, 119 S.Ct. 1074, 143 L.Ed.2d 77 (1999). “Wide latitude is afforded the cross-examination of witnesses to test qualifications, credibility, skill or knowledge, and the value and accuracy of the expert's opinion.” State v. Brooks, 960 S.W.2d 479, 493 (Mo. banc 1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1998).

C. Failure to Object to Closing Argument

Mr. Middleton also contends that counsel was ineffective for failing to object to comments the prosecution made during its closing argument during the penalty phase of the trial. First, he contends that the following is an improper personalization and implies special knowledge: Paranoia is fear; it is fear. And did this defendant have or act paranoid, think paranoid things? Yes. Was he as paranoid as he led these doctors to believe? I doubt it, and I think you should doubt it. I think you should read the letters, recall the letters that he wrote to his sister from jail—fairly sophisticated manipulations, fairly sophisticated manipulations. “People are trying to frame me”; “I don't know why you won't come to see me”; “I found Jesus Christ now.” That is manipulation. This argument was not improper. The prosecution was permitted to argue reasonable inferences from the evidence. Here, the evidence that the prosecutor cited could be interpreted as evidence of manipulation, and the prosecutor did not go beyond appropriate bounds in so arguing to the jury. Cf. State v. Kenley, 952 S.W.2d 250, 272 (Mo. banc 1997), cert. denied, 522 U.S. 1095, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998) (prosecutor may make statements drawn from evidence).

Mr. Middleton also contends that there was no evidence to support the prosecutor's statement in closing argument that Stacey Hodge was “moaning in agony before she [was] finally finished off by Maggie.” Again, however, the evidence did support this inference. Doug Stallsworth testified during the penalty phase that when Ms. Hodge got out of the car, Mr. Middleton shot her and “[t]hen when she fell down and was kind of suffering, and moaning, and stuff they walked over and Maggie shot her in the head.” Counsel did not improperly use this argument to suggest a personal danger to the jury or their families. State v. Rhodes, 988 S.W.2d 521, 528 (Mo. banc 1999).

D. Failure to Object to Penalty Phase Instructions

1. Failure to Submit “Knowingly”.

Mr. Middleton contends that counsel failed to object that Instruction No. 15 in the penalty phase did not properly define the crime of delivery of a controlled substance, as MAI–CR 3d 325.04.1 requires a jury to find defendant “knowingly” delivered a controlled substance. Instruction 15, provided, in relevant part: In determining the punishment to be assessed against the defendant for the murder of Alfred Pinegar, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exists: .... 2. Whether the defendant murdered Alfred Pinegar for the purpose of concealing or attempting to conceal the defendant's delivery of methamphetamine, a controlled substance. A person commits the crime of delivery of a controlled substance when he delivers a controlled substance knowing that the substance is a controlled substance....

While Mr. Middleton is correct that the last-quoted sentence of the instruction should have placed the word “knowingly” before the words “delivers a controlled substance,” he was not prejudiced by counsel's failure to object to this instruction. Here, the fact that Mr. Middleton used and sold methamphetamine was conceded in the penalty phase and evidence to this effect was even elicited by defense counsel to support the claim of methamphetamine psychosis. Accordingly, prejudice did not result from omission of the word “knowingly” and Mr. Middleton's claim is without merit. State v. Roberts, 948 S.W.2d 577, 588 (Mo. banc 1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998) (“When a defendant makes a voluntary judicial admission of fact before a jury, it serves as a substitute for evidence and dispenses with proof of the actual fact and the admission is conclusive on him”). FN7. Mr. Middleton also contends that appellate counsel was ineffective for not raising as plain error the failure to submit the mental element of acting knowingly in Instruction No. 15. As this Court has found no prejudice resulted from the failure to include this element in the instruction, counsel cannot be found ineffective in failing to raise this issue on appeal. Skillicorn, 22 S.W.3d at 689.

2. Juror Inability to Understand Penalty Phase Instructions.

Mr. Middleton also claims that trial counsel was ineffective for failing to challenge the penalty phase instructions by presenting the studies of Dr. Richard Wiener, which purportedly demonstrate that jurors have difficulty understanding Missouri's penalty phase instructions and, as a result, are more likely to recommend death. For the reasons stated in Lyons v. State, 39 S.W.3d at 43–44; State v. Deck, 994 S.W.2d 527, 542–43 (Mo. banc 1999), cert. denied, 528 U.S. 1009, 120 S.Ct. 508, 145 L.Ed.2d 393 (1999); and State v. Jones, 979 S.W.2d 171, 181 (Mo. banc 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 886, 142 L.Ed.2d 785 (1999), in which nearly identical arguments were raised, this argument is rejected.

V. CLEMENCY

Mr. Middleton claims Missouri's clemency process is arbitrary and capricious. For the reasons stated in Middleton, 80 S.W.3d at 817 (Mo. banc 2002), this claim is rejected also.

VI. CONCLUSION

For the reasons set out above, the judgment is affirmed. All concur.

United States Court of Appeals for the Eighth Circuit

No. 06-2907

John Middleton, Appellant
v.
Don Roper, Appellee

August 18, 2007

Appeal from the United States District Court for the Eastern District of Missouri.

Submitted: June 14, 2007
Filed: August 17, 2007

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

John Middleton was convicted of the first-degree murder of Alfred Pinegar and sentenced to death by a Missouri trial court. The Supreme Court of Missouri affirmed the conviction and sentence on direct appeal, State v. Middleton , 995 S.W.2d 443 (Mo. 1999) (" Middleton I "), and subsequently affirmed the denial of his motion for post- conviction relief. Middleton v. State , 103 S.W.3d 726 (Mo. 2003) ( Middleton II ). Middleton applied for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. The district court¹ denied relief on all thirty-two grounds claimed, but granted a certification of appealability on four issues. We affirm.

I.

We recite the facts as set forth by the Supreme Court of Missouri in its opinion affirming the denial of post-conviction relief. See 28 U.S.C. § 2254(e). On June 10, 1995, police arrested several individuals in Harrison County, Missouri, on methamphetamine-related charges. John Middleton, a local methamphetamine user and dealer, was not arrested at that time. About ten days later, he told a friend that "the snitches around here are going to start going down." He said he had a "hit list," which included Alfred Pinegar, another methamphetamine dealer and an associate of Middleton's. Two days after making these comments, Middleton told the same friend that he was "on his way to Ridgeway, Missouri, to take Alfred Pinegar fishing."

Pinegar lived with his fiance, Priscilla Hobbs, in Davis City, Iowa, just north of Harrison County. On June 23, 1995, Hobbs passed Middleton on the road on her way to Davis City. Middleton and his girlfriend were in a white Chevrolet pickup truck. When Hobbs arrived at home, Pinegar was gone, and the yard had been only partly mowed. Also missing were about $200 and a twelve-gauge shotgun that Pinegar habitually carried.

Around noon of that day, Middleton entered a Wal-Mart in Bethany, Missouri, with his girlfriend, Maggie Hodges, and a man believed to be Pinegar. They approached the sporting goods department where Middleton purchased six boxes of nine-millimeter ammunition and two boxes of twelve-gauge buckshot.

After leaving Wal-Mart, the three drove several miles to the vicinity of Ridgeway, where they parked in a field. When Middleton brandished Pinegar's shotgun, Pinegar fled. Middleton shot him twice in the back and then killed him with a shot to the face. Middleton dumped Pinegar's body over a fence.

Middleton and Hodges then returned to the Bethany Wal-Mart, where Middleton exchanged the nine-millimeter rounds for ammunition of another caliber. Later in the afternoon, Gerald Parkhurst saw Middleton and Hodges standing beside their pickup on a road near Bethany. Explaining that the truck had broken down, Middleton and Hodges asked for a ride. Parkhurst agreed. The couple took five or six guns, including the shotgun, out of the pickup truck and placed them in Parkhurst's car. Parkhurst drove them to Spickard, Missouri, where they took the guns and left.

On June 25, 1995, John Thomas visited Middleton to discuss possible drug informants. Middleton said that "something had to be done about them." He told Thomas that he had Pinegar's shotgun and that Pinegar "wouldn't be needing it no more." The following day, Pinegar's body was discovered. Police also found at the crime scene a piece of leather fringe, an empty box of twelve-gauge shells, a pair of sunglasses with a missing lens, and a small plastic clock.

Several months later, while in jail, Middleton admitted to a fellow inmate that he killed Pinegar out of fear that Pinegar would "snitch" on him. Middleton described the murder to the other inmate, and said he was worried that he may have left some fringe from his leather jacket at the scene.

Middleton was tried and convicted of the first-degree murder of Pinegar. He presented no evidence in his defense in the guilt phase of the trial. In the punishment phase, the State presented evidence that he had subsequently murdered one Randy Hamilton and his girlfriend, Stacey Hodge, as part of his effort to eliminate informants. The jury recommended a death sentence, and the circuit court imposed it. Later, in a separate trial, Middleton was also sentenced to death for the other two murders. See Middleton v. Roper , 455 F.3d 838 (8th Cir. 2006), cert. denied , 127 S. Ct. 980 (2007).

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), a federal court may grant a writ of habeas corpus only if the state court's determination:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. "A decision is 'contrary to' federal law . . . if a state court has arrived 'at a

conclusion opposite to that reached by [the Supreme Court] on a question of law' or if it 'confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent' but arrived at an opposite result." Davis v. Norris , 423 F.3d 868, 874 (8th Cir. 2005) (quoting Williams v. Taylor , 529 U.S. 362, 405 (2000)). "A state court unreasonably applies clearly established federal law when it 'identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Williams , 529 U.S. at 413). The factual findings of the state courts are presumed correct, and the applicant has the burden to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A.

Middleton first claims that he was denied his right to effective assistance of counsel and to due process of law when the state trial court refused to grant his requests for a continuance of the trial. Middleton complains that the State endorsed twenty-three new witnesses only three weeks prior to trial, and that as a result, his counsel were unable adequately to prepare his defense. He contends that counsel were forced to conduct depositions in the evening during the trial instead of readying themselves for the following day's cross examinations, and that their effectiveness at trial suffered as a consequence.

By the time Middleton went to trial, about a year and four months had elapsed since an information was filed against him. His first counsel entered her appearance the day after the information was filed. In June 1996, eight months after the information was filed, his counsel requested and received a continuance from October 7, 1996, to February 24, 1997. Two more attorneys joined Middleton's team in the summer or early fall of 1996. Middleton moved for a continuance several times during the final three weeks before trial, but the trial court adhered to the scheduled trial date in February 1997.

Middleton's first request for a continuance, made three weeks before the February trial date, argued that counsel were unable to complete their preparation due to the unexpected length of depositions, the need to defend against accusations of two additional murders in the penalty phase, the recent discovery of additional reports and evidence, and the fact that some of the witnesses were difficult to locate. The trial court denied the motion, saying that "this is the kind of case that never would be ready for trial," because "there are always other witnesses to find or discovery or some new facet that comes up or something." (T. Tr. 615).

The court also reasoned that it was required to recognize the speedy trial rights of the defendant, who had been in confinement for an extended period of time. After the State endorsed its new witnesses, the trial court found that the defense would not be prejudiced by the endorsement and denied a second motion to continue, but granted Middleton leave to object to the presentation of the witnesses if unforeseen discovery problems arose. In a third motion to continue that was filed five days before trial, Middleton's lawyers argued that they were still not prepared to go to trial, citing a potential conflict of interest over the representation of a prosecution witness, the asserted unavailability of their own recently-endorsed penalty phase expert witness, continuing efforts to obtain discovery materials and other information from the State, and the need to have certain fiber evidence analyzed.

The court denied the motion saying that "even if we continued it for six months, right before trial there are always those crises and problems and things that arise, and no matter how you went, six months or a year, you would have problems of that kind and that nature." (T. Tr. 758). The court concluded that "the case is in the stage that it can be tried with fairness to Mr. Middleton," but pledged to consider "additional protections" if Middleton raised "particular instances where relief is required from the Court" to ensure a fair trial. ( Id. ).

At trial, the State eventually called eleven of the twenty-three late-endorsed witnesses to testify. Middleton did not renew an objection to several of these witnesses, and others testified only briefly regarding perfunctory matters, such as the chain of custody of physical evidence. The court eventually granted Middleton's motion to exclude the testimony of the witness with the asserted conflict of interest. The court denied objections to the testimony of the remaining late-endorsed witnesses.

On direct appeal, the Supreme Court of Missouri held that the trial court did not abuse its discretion by denying the motions to continue. The court observed that many of the twenty-three witnesses endorsed shortly before trial were "chain-of- custody" witnesses who verified the proper handling of physical evidence, that others already had been deposed by the defense or had testified in pre-trial proceedings, and that still others had been endorsed previously by the prosecution or the defense, or at least had been identified in police reports. The court distinguished its precedents in which the State failed to disclose key evidence until the morning of trial, and determined that in this case, Middleton had not established that he was prejudiced by the denial of his requests for a continuance.

Middleton argues that the trial court's decisions resulted in a violation of his rights under the Sixth and Fourteenth Amendments, and that the state supreme court unreasonably applied clearly established law in denying relief. Two Supreme Court precedents principally govern an accused's constitutional right to a continuance. In Ungar v. Sarafite , 376 U.S. 575 (1964), a case involving a criminal contempt proceeding against a witness in a criminal trial, the Court opined that "[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process," indicating that "[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Id . at 589.

The Court explained that not every denial of a request for more time violates due process, even if the consequence of the ruling is that a party fails to offer evidence or is compelled to defend without counsel. On the other hand, the Court allowed that "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." Id . In Ungar , the Court held that the trial court's denial of a motion for continuance on the day of the scheduled contempt hearing did not deprive the defendant of due process, even though counsel said that he was contacted only three days earlier and was unfamiliar with the case. Id . at 590.

Subsequently, in Morris v. Slappy , 461 U.S. 1 (1983), the Court again emphasized that "[t]rial judges necessarily require a great deal of latitude in scheduling trials," and explained that "[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." Id . at 11. The governing standard for the Sixth Amendment, the Court declared, is that "only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Id. at 11-12 (quoting Ungar , 376 U.S. at 589).

These decisions of the Supreme Court state the governing constitutional rule at a high level of generality. In applying the deferential standard of AEDPA, "[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by- case determinations." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); see also Carey v. Musladin , 127 S. Ct. 649, 654 (2006). Granting that leeway to the state supreme court, we agree with the district court that the resolution of Middleton's claim was not an unreasonable application of Supreme Court precedent.

The Supreme Court of Missouri reasonably could conclude that the decisions of the state trial court recounted above were not an "unreasoning and arbitrary" insistence on proceeding to trial in the face of a justifiable request for delay. See Slappy , 461 U.S. at 11. The trial court determined that Middleton could receive a fair trial without a continuance, and the state supreme court provided an expanded rationale for this conclusion, based on the nature of the witnesses who were endorsed by the prosecution three weeks before trial. As to six late-endorsed witnesses about whom the defense raised objections during trial, the prosecution argued either that the witnesses were perfunctory or that defense counsel already had information about the witnesses through previous hearings and police reports, and the trial court overruled the objections.

The state supreme court accepted the State's contention, finding that the disputed witnesses were simply "chain of custody" witnesses, had already been deposed, had testified in pretrial proceedings, or had been identified in police reports. Middleton II , 995 S.W.2d at 465. Middleton has not rebutted that factual determination. See 28 U.S.C. § 2254(e)(1). Middleton now advances general arguments that his counsel were hampered in their ability to prepare by the late disclosure of witnesses for the prosecution, but he has identified no specific instance in which additional time for preparation would have improved the performance of counsel or the fairness of the trial. See Wise v. Bowersox, 136 F.3d 1197, 1207 (8th Cir. 1998) (holding that "inadequate preparation in itself does not prejudice a defendant," and that a habeas applicant must show that counsel's poor preparation resulted in substandard and prejudicial performance). We agree with the district court that "counsel vigorously and competently" represented Middleton throughout the trial, and that the Supreme Court of Missouri reasonably concluded that the trial court's denial of a continuance did not deprive Middleton of a fair trial or effective assistance of counsel.

B.

Middleton's second claim is that the trial court, by reciting the Missouri Approved Jury Instructions at the penalty phase rather than a set of instructions requested by Middleton, precluded the jury from giving consideration to mitigating evidence, as required by the Eighth Amendment. The instructions employed by the trial court first asked the jury to determine whether any statutory aggravating factors had been proven beyond a reasonable doubt. (App. at 903). If so, then the jury was instructed to determine "whether there are facts and circumstances in aggravation of punishment which, taken as a whole, warrant the imposition of a sentence of death upon the defendant." ( Id . at 904). Next, the jury was advised that if it found that the aggravating circumstances "warrant the imposition of a sentence of death," then it "must determine whether there are facts or circumstances in mitigation of punishment which are sufficient to outweigh the facts and circumstances in aggravation of punishment." ( Id . at 905). This instruction required the jury to consider two statutory mitigating factors, as well as "any other facts or circumstances which you find from the evidence in mitigation of punishment." ( Id .).

Middleton contends that the jury was likely to misunderstand these instructions, and that his "simple, clear, and understandable" alternatives should have been given instead. He argues that the court's instructions were structured in a way that precluded the jury from giving effect to mitigating evidence. In addition to a general argument of confusion, he asserts that the instruction on aggravating circumstances called upon the jury to make the "death decision in isolation, solely on the basis of aggravating circumstances," and that the jury was not told until the next instruction, "after they have already decided that death is the appropriate punishment," that they should consider mitigating circumstances.

On direct appeal, the Supreme Court of Missouri held that the trial court did not err by using the Missouri Approved Instructions rather than Middleton's proposed alternatives. The court concluded that the catch-all paragraph on mitigating circumstances was sufficient to permit the jury to give effect to any mitigating evidence. Middleton I , 995 S.W.2d at 464.

We have held previously, even without the deferential lens of AEDPA, that the Missouri Approved Instructions are consistent with the Eighth Amendment. In Ramsey v. Bowersox , 149 F.3d 749, 757 (8th Cir. 1998), we held that the approved instructions did not improperly limit the jury's consideration of mitigating evidence, and observed that the Supreme Court had approved a similar set of instructions in Buchanan v. Angelone , 522 U.S. 269, 276-77 (1998). In Bolder v. Armontrout , 921 F.2d 1359, 1367 (8th Cir. 1990), we rejected an argument that the order and phrasing of the instructions on aggravating and mitigating circumstances improperly shifted the burden of proof to the defendant to present mitigating evidence to avoid the death penalty.

Middleton's argument is phrased a bit differently, but we again perceive no constitutional flaw in the instructions, and thus no unreasonable application of established law. Viewing the instructions as a whole rather than in artificial isolation, see Boyde v. California , 494 U.S. 370, 378 (1990), we see no reasonable likelihood that the jury was precluded from considering mitigating evidence. Although the jury was asked first to determine whether aggravating circumstances existed and whether they were sufficient to warrant the death penalty, that was a permissible step to narrow the class of defendants eligible for the death penalty. See Lowenfield v. Phelps , 484 U.S. 231, 244-46 (1988). The instructions were clear that the decision on aggravating circumstances did not constitute the ultimate selection of the appropriate punishment for this defendant. See Tuilaepa v. California , 512 U.S. 967, 972 (1994).

Rather, the jury was then required to consider mitigating evidence, and to impose a term of life imprisonment if the mitigating circumstances were sufficient to outweigh the aggravating circumstances. This is a permissible means of allowing the jury to give effect to mitigating evidence. See Kansas v. Marsh , 126 S. Ct. 2516, 2522-24 (2006). Another instruction, moreover, specifically explained that the jury was not compelled to fix death as the punishment, even if the mitigating circumstances did not outweigh the aggravating circumstances. (App. at 907). We conclude that the state supreme court did not unreasonably apply Supreme Court precedent in rejecting Middleton's Eighth Amendment claim.

In a related argument, Middleton contends that his trial counsel were ineffective because they failed to object to the pattern instructions and to present evidence of scientific studies by Dr. Richard Wiener, a psychologist. According to Dr. Wiener, his studies show that jurors do not understand the standard Missouri instructions, that it is possible to improve juror comprehension by rewriting the instructions, and that jurors who do not comprehend the instructions may be more likely to impose the death penalty.

The state post-conviction trial court found that Dr. Wiener's findings and conclusions were "not persuasive" and did not establish that the Missouri pattern instructions were confusing or misleading to the jury. Accordingly, the court ruled that trial counsel were not ineffective for declining to object to the pattern instructions or in failing to present Dr. Wiener's studies. The Supreme Court of Missouri summarily affirmed the trial court's ruling, citing several decisions in which it had rejected similar arguments based on Dr. Wiener's studies. Middleton II , 103 S.W.3d at 743 (citing Lyons v. State , 39 S.W.3d 32, 43-44 (Mo. 2001); State v. Deck , 994 S.W.2d 527, 542-43 (Mo. 1999); State v. Jones , 979 S.W.2d 171, 181 (Mo. 1998)). In Deck, for example, the state supreme court rejected Dr. Wiener's conclusion that jurors were unlikely to understand the concept of mitigation, reasoning that "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.'" 994 S.W.2d at 542-43. In Lyons , the court concluded that the language of the pattern instructions is "plainly understandable." 39 S.W.3d at 43.

We conclude that the Supreme Court of Missouri did not unreasonably apply Strickland v. Washington , 466 U.S. 668 (1984), in holding that trial counsel were not ineffective for failing to rely on the Wiener studies. We already have explained that the Missouri pattern instructions give the jury an adequate opportunity to give effect to mitigating evidence, and we agree with the state supreme court that when the instructions are viewed as a whole, they are understandable. Because reliance on the Wiener studies would have been unavailing, it was reasonable for the state court to hold that counsel reasonably declined to present the studies and that Middleton suffered no prejudice.

C.

Middleton's third contention is that the trial court's admission of a videotape and photograph showing the bodies of Middleton's murder victims in an uncharged case was so unfairly prejudicial that it violated his rights under the Due Process Clause. The disputed videotape shows the scene where the bodies of Stacey Hodge and Randy Hamilton were discovered in the trunk of a car. The district court found that the videotape was "admittedly gruesome, showing the two victims' skeletized remains found a month after they had been killed." Middleton v. Roper , No. 4:03CV543, 2005 WL 2298203, at * 35 (E.D. Mo. 2005).

On direct appeal, the Supreme Court of Missouri held the trial court did not abuse its discretion in admitting this evidence. Middleton I , 995 S.W.2d at 463. The court ruled that the character and history of the defendant, including prior crimes committed by the defendant, is admissible as relevant evidence in the penalty phase of a capital trial. The court reasoned that the sole account of how Hodge and Hamilton were murdered came from Stallsworth, the jailhouse informant, and that the videotape and photograph corroborated his testimony and helped the jury to understand Middleton's prior acts for the purpose of determining his punishment for Pinegar's murder. Id.

The only Supreme Court precedent on which Middleton relies is Donnelly v. DeChristoforo, 416 U.S. 637 (1974). In that case, the Court rejected a habeas petitioner's claim for relief based on allegedly improper remark by a prosecuting attorney, but established some general principles for application of the Due Process Clause. The Court explained that the "process of constitutional line drawing in this regard is necessarily imprecise," id . at 645, but emphasized that courts should observe the distinction between "ordinary trial error of a prosecutor" and "egregious misconduct" that amounts to a denial of constitutional due process. Id . at 647-48.

The ultimate standard, as later applied to determine whether the admission of disputed evidence at a sentencing hearing violates the Due Process Clause, is whether the evidence "so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process." Romano v. Oklahoma , 512 U.S. 1, 12 (1994). Under AEDPA's habeas review, we consider whether the state supreme court's rejection of Middleton's claim was an objectively unreasonable application of Supreme Court precedent concerning the Due Process Clause. Whether the evidence was properly admissible under Missouri law is "no part" of our review, because habeas review does not lie to correct alleged errors of state law. Estelle v. McGuire , 502 U.S. 62, 67-68 (1991).

The disputed videotape and photograph in this case were relevant to prove Middleton's other criminal acts. These acts, in turn, were relevant to the sentencing decision. See Zant v. Stephens , 462 U.S. 862, 888 (1983); Wise v. Bowersox , 136 F.3d at 1205-06. The photograph of Hodge's body was used by an expert witness in describing her fatal injuries and corroborated Stallsworth's testimony. The videotape of the bodies in the trunk corroborated Stallsworth's account of Middleton's admissions.

Middleton contends that the videotape, in particular, was cumulative of testimony from law enforcement officers, but the Supreme Court has never held that the admission of indisputably relevant evidence amounts to a denial of due process. Our own precedents, which have upheld the admission of similar evidence against due process challenges prior to AEDPA, provide support for the view that the state court's application of Supreme Court precedent was at least objectively reasonable. See Clark v. Wood , 823 F.2d 1241, 1246-47 (8th Cir. 1987) (holding no due process violation where trial court admitted "graphic and detailed pictures" of a victim in an uncharged murder, in addition to testimony of witnesses who described the scene "in detail," because photographs were relevant to show circumstances or background of the charged murder); Kuntzelman v. Black , 774 F.2d 291, 292 (8th Cir. 1985) (per curiam) (affirming denial of habeas relief where trial court admitted "particularly gruesome" photographs of a murder victim's body and body parts from an autopsy, because they were "arguably relevant and probative" in showing the identity and condition of the deceased, the location of the wound, and the defendant's intent); Walle v. Sigler , 456 F.2d 1153, 1155 (8th Cir. 1972) (holding no due process violation in trial court's admission of "gruesome" photographs of uncleansed corpse, saying "it must be noted that this condition is an inherent and inseparable part of the crime with which this defendant was charged"). The Supreme Court's guidance in this area is quite general, and we do not think the state supreme court unreasonably applied those precedents in holding that the trial court's evidentiary decisions did not amount to a denial of due process.

D.

Middleton's final claims concern the proportionality of his punishment. He contends that his sentence of death is not proportionate to the punishment imposed in similar Missouri cases, and that Missouri's system of proportionality review fails to provide an appropriate comparison among cases. The Supreme Court of Missouri rejected Middleton's challenges to proportionality review, citing this court's decision that "Missouri's proportionality review does not violate the Eighth Amendment, due process, or equal protection of the laws." Middleton I , 995 S.W.2d at 468 (quoting Ramsey , 149 F.3d at 754).

The Eighth Amendment does not require proportionality analysis, Pulley v. Harris , 465 U.S. 37, 50-51 (1984), but we have said that once a State creates a right to proportionality review, as Missouri has done, see Mo. Rev. Stat. § 565.035, then the State may not arbitrarily deny that right to a particular defendant. Foster v. Delo , 39 F.3d 873, 882 (8th Cir. 1994). In this case, the Supreme Court of Missouri performed the prescribed review, see Middleton I , 995 S.W.2d 467-68, and the Constitution does not call for us to look behind that review. Walton v. Arizona , 497 U.S. 639, 656 (1990), overruled on other grounds by Ring v. Arizona , 536 U.S. 584, 589 (2002); Kilgore v. Bowersox , 124 F.3d 985, 996 (8th Cir. 1997). Middleton contends that the state supreme court should be required to compare similar cases in which the death penalty was rejected or was not sought, and that it should engage in a statistical or scientific comparison of cases. But we may not consider whether the state court misinterpreted the relevant state statute, McGuire , 502 U.S. at 67-68; Kilgore , 124 F.3d at 996, and "a defendant cannot 'prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.'" United States v. Johnson , No. 06-1001, 2007 WL 2163002, at *4 (8th Cir. July 30, 2007) (quoting McClesky v. Kemp , 481 U.S. 279, 306-07 (1987)); see also Getsy v. Mitchell , No. 03-3200, 2007 WL 2118956, at *7 (6th Cir. July 25, 2007) (en banc). Accordingly, we hold that the state supreme court's decision on proportionality review did not unreasonably apply clearly established federal law as determined by the Supreme Court.

The judgment of the district court is affirmed.

* * *

¹ The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.