In any event, testimony of voluntary intoxication is
not admissible to negate the mental state of an offense. State v.
Roberts, 948 S.W.2d 577, 588[6] (Mo. banc 1997) (citing sec.
562.076.3), cert. denied, -___ U.S. ___, 118
S.Ct. 711, 139 L.Ed.2d 652 (1998). The exclusion of Rogers’ testimony
was not error.
Appellant asserts that the trial court erred in
rejecting his proposed instruction on intoxication evidence:
You may consider evidence that Bernard Rhodes was in
a drugged condition to evaluate his conduct. You may not consider
evidence that Bernard Rhodes was in a drugged condition when evaluating
whether the state has met its burden of proving beyond a reasonable
doubt mental states which are elements of the offense.
Appellant did not offer any evidence of intoxication
relevant to his conduct. Appellant did offer evidence of intoxication
relevant to his mental state, as demonstrated by the words of his
argument: "The evidence that Bernard had been ingesting crack cocaine
was thus relevant since, as Dr. Evans explained, the brain chemistry
when an individual crashes from a crack high causes him to try to find
more crack to alleviate the pain caused by the crash."
Evidence of voluntary intoxication is not admissible
to negate the mental state of the offense. Roberts, 948 S.W.2d at
588[6] (citing sec. 562.076.3). Because no evidence of
intoxication relevant to "conduct" was introduced, the court properly
did not instruct the jury to consider such evidence. Id.
Evidence of appellant’s cocaine addiction was
admitted to show his motive to rob Martin: to buy more crack cocaine.
The court properly limited the jury’s consideration of this evidence
with the following instruction: "a drugged condition from drugs will not
relieve a person of responsibility for his conduct." This is an accurate
statement of the law in Missouri. Id.
C. Sufficiency of the Evidence
Appellant next asserts there was insufficient
evidence to convict him of first degree murder.
A person commits the crime of murder in the first
degree by knowingly causing the death of another person after
deliberation. Sec. 565.020.1. This Court determines the
sufficiency of the evidence by reviewing the record, and its reasonable
inferences, in the light most favorable to the verdict while
disregarding all contrary evidence and inferences. State v. Johnston,
957 S.W.2d 734, 747 (Mo. banc 1997), cert. denied, ___ U.S.
---___, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998).
Appellant concedes in his brief that "Bernard killed
Ms. Martin," but asserts the killing was without deliberation. Repeated
blows to the victim are sufficient evidence to support a jury’s
determination of deliberation. Id. at 748[21].
Martin’s autopsy revealed she had black eyes,
lacerations on her lips and above her eyes, a broken nose, bruises on
her shoulders, contusions on her elbows, marked hemorrhaging under the
skin of Martin’s head, a broken rib, and a broken bone in her neck that,
according to medical testimony, paralyzed her from the neck down. This
evidence of repeated blows sufficiently supports the jury’s finding of
deliberation.
Further, the jury could have found that deliberation
occurred after appellant’s first attack on Martin while he ransacked her
home and returned to his victim three times: first to bind her arms and
legs, second to wrap a green cloth around her head, and finally to place
a multicolored plastic bag over her head and tie it tightly around her
neck. See State v. Antwine, 743 S.W.2d 51, 72 (Mo. banc 1987),
cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217
(1988) (holding evidence of deliberation sufficient when defendant had
several opportunities to abandon his plan to kill the victim).
Appellant argues he did not deliberate on Martin’s
death because he was "in a frenzied condition from having crashed from
the euphoria he had experienced while high on crack cocaine."
Assuming the "crash phase" of chemical dependency is
intoxication, this argument is not permitted in Missouri; voluntary
intoxication may not negate a defendant’s mental state or provide an
insanity defense absent a separate mental disease that results in
diminished capacity without the voluntarily ingested drugs. Roberts,
948 S.W.2d 577, 589[9]. To the extent appellant argues the "crash" phase
of drug use is not intoxication, his necessity to consume more drugs in
no way excuses the killing. State v. Smith, 884 S.W.2d 104,
105[3] (Mo. App. 1994) (citing sec. 563.026).
The evidence of first degree murder was sufficient.
Appellant also asserts that there was insufficient
evidence for the conviction of first degree robbery. "A person commits
the crime of robbery in the first degree when he forcibly steals
property and in the course thereof he, or another participant in the
crime, (1) Causes serious physical injury to any person." Sec.
569.020.
Appellant entered Martin’s home for the purpose of
stealing her property. When spotted, he knocked Martin unconscious. In
appellant’s own words: "She just laid there. I didn’t see her mouth
bleeding till later. She quit moving."
From the medical evidence, the jury could infer that
the marked hemorrhaging under the skin of Martin’s head was inflicted by
appellant and caused Martin to lose consciousness. Such hemorrhaging
rendering someone unconscious was sufficient evidence that appellant
forcibly stole property and simultaneously caused serious physical
injury.
Afterwards, appellant left in Martin’s car with some
of her possessions: "I then got keys and looked in garage & saw car. I
got in car and I seen the weedeater. I got out & put it in car & I left."
This was sufficient evidence that appellant stole Martin’s property.
Finally, jurors could have reasonably inferred that
appellant’s physical abuse was "for the purpose of preventing resistance
to the taking" of Martin’s property, and was therefore "in the course"
of the robbery. State v. Weems, 840 S.W.2d 222, 228[6] (Mo. banc
1992). There was sufficient evidence that appellant forcibly stole
Martin’s car and weedeater, and in the course thereof, caused serious
injury to Martin.
Appellant maintains in his brief that the intent to
steal was formed after Martin was seriously injured. This is belied by
appellant’s own words in his videotaped confession that show his intent
to steal was formed before entering Martin’s home: "I seen the door open.
I thought I would go get me something. Anything worth something."
In any event, it is enough that the violence to
Martin was preceded by or contemporaneous with the taking. Weems,
840 S.W.2d at 228-29. Here, the evidence is clear that appellant
seriously injured Martin, then stole her weedeater and left in her car.
The evidence of first degree robbery was sufficient.
III.
Appellant did not object to the State’s closing
argument in the guilt phase. He now asserts the trial court should have
sua sponte stricken several comments by the prosecutor. Under Rule
30.20, this Court may decline, within its discretion, claims of plain
error that do not facially establish substantial grounds for believing a
manifest injustice or miscarriage of justice occurred. State v. Brown,
902 S.W.2d 278, 284 (Mo. banc 1995), cert. denied, 516 U.S.
1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995).
A court should rarely grant relief on assertions of
plain error at guilt-phase closing because, absent an objection, the
trial court’s options are limited to an invited interference with
summation, which increases the risk of error. State v. Storey,
901 S.W.2d 886, 897 (Mo. banc 1993). Each comment is reviewed in turn.
First, appellant argues the following comment
by the prosecutor was unsworn testimony to facts outside the record:
Ladies and gentleman of the jury, this case has moved
quickly. You may have heard of cases, other cases tried elsewhere that
take a lot longer. Don’t let that bother you. This case is just that
tight. It’s just that good.
The prosecutor may state legitimate inferences from
the evidence but may not imply a knowledge of facts not before the jury.
State v. Simmons, 944 S.W.2d 165, 182[39] (Mo. banc 1997),
cert. denied, ___U.S.___, 118 S.Ct. 376, 139 L.Ed.2d. 293 (1997).
Here, the trial took six days. Since appellant did not object, the
prosecutor was permitted to infer that some jurors "may" have heard of
longer cases. This claim of plain error does not rise to the level of
manifest injustice.
Second, appellant contends the prosecutor
improperly testified to facts outside the record with this statement:
"once again, ladies and gentlemen, if there ever was a case of murder in
the first degree, it’s this one, and you know that." This was a
rhetorical flourish, not plain error. Storey, 901 S.W.2d at
898[41].
Third, appellant asserts the prosecutor
improperly attempted to define the concept of reasonable doubt: "This
case is proven beyond a reasonable doubt. Now if you want to get into
unreasonable doubt, that’s another matter."
Arguments by prosecutors attempting to define
reasonable doubt represent reversible error. State v. Williams,
659 S.W.2d 778, 782 (Mo. banc 1983). However, "brief remarks purporting
to define ‘reasonable doubt,’ although improper, do not result in
reversible error so long as counsel does not unduly dwell upon the
definition." Id. at 782.
Therefore, putting aside whether the prosecutor "defined"
the concept of reasonable doubt with this comment, it was too brief to
merit reversal, let alone reversal for plain error.
Fourth, appellant argues the prosecutor
improperly commented on appellant’s post-Miranda silence (before
his confession) in violation of Doyle v. Ohio, 426 U.S. 610, 619,
96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), and State v. Dexter,
954 S.W.2d 332, 338 (Mo. banc 1997), with the following comment:
And then he gets with the police and doesn’t tell the
truth until they finally got him in a position based on the evidence
where he has to start talking. He doesn’t want to get caught. And
through his lawyers he’s doing the same thing to you. He doesn’t want
you to catch him.
The prosecutor did not comment on appellant’s silence
but on his untruthful statements after receiving Miranda warnings.
Such statements are admissible: "Such questioning makes no unfair use of
silence because a defendant who voluntarily speaks after receiving
Miranda warnings has not been induced to remain silent." Anderson
v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222
(1980). No plain error is involved.
Fifth, appellant contends the State improperly
personalized its argument with this comment:
I admire – it’s hard for me to take sometimes, I
admit, the defense arguments. She’s got to do her job for her client,
ladies and gentlemen. But just because the defense gets up here and
tells you something, just because the state’s got the burden of proof in
this case, it doesn’t mean you got to believe and accept what they tell
you.
Prosecutors may not express an opinion applying facts
not available to the jury. Grubbs v. State, 760 S.W.2d 115, 119 (Mo.
banc 1988), cert. denied, 409 U.S. 1085, 109 S.Ct. 2111,
104 L.Ed.2d 672 (1989). However, a prosecutor may state conclusions
fairly drawn from the evidence, and inferences need not seem necessarily
warranted. Id. It is also proper for the prosecutor to comment on
the credibility of the defendant’s case. State v. Kreutzer, 928
S.W.2d 854, 872[30] (Mo. banc 1996), cert. denied, ___ U.S.
___, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997).
Here, the prosecutor stated his conclusion that
arguments by defense counsel were unpersuasive. This comment does not
imply knowledge of facts not before the jury and is proper. No plain
error occurred.
IV.
Appellant asserts that, during sentencing, the State
improperly personalized its argument for the death penalty:
Try, try just taking your wrists during
deliberations and crossing them and lay down and see how that
feels (demonstrating). Imagine your hands are tied up.
MS. SHAW (defense counsel): Your Honor, I’m going to object to
the personalization.
THE COURT: The objection’s overruled.
MR. CRANE (the prosecutor): And ladies and gentlemen, you’re on
the floor, and you’re like that, with your hands behind your
back, and this guy is beating you. Your is nose broken. Every
time you take a breath, your broken rib hurts. And finally,
after you're back over on your face, he comes over and he pulls
your head back so hard it snaps your neck.
***
Hold your breath. For as long as you can.
Hold it for 30 seconds. Imagine it’s your last one.
MS. SHAW: Your Honor, I’m going to object.
MR. CRANE: You can do that.
MS. SHAW: Improper to put the jury in the place of the victim. I
think this is improper argument.
THE COURT: The objection is overruled.
While arguing in this manner, the prosecutor
physically demonstrated how the victim was murdered.
Arguments for the death penalty designed to cause the
jury to abandon reason in favor of passion are improper. State v.
Taylor, 944 S.W.2d 925, 937 (Mo. banc 1997); State v. Richardson,
923 S.W.2d 301, 323 (Mo. banc 1993), cert. denied, ___ U.S.
___, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996). In each death penalty case,
this Court reviews whether a sentence of death is imposed under the
influence of "passion, prejudice, or any other arbitrary factor."
Taylor, 944 S.W.2d at 937 (quoting sec. 565.035.3(1)).
Arguments likely to inflame and excite prejudices of
the jury are not improper if they help the jury understand and
appreciate evidence that is likely to cause an emotional response.
Johnston, 957 S.W.2d at 754[47][48].
For example, the prosecutor may recount in detail the
victim’s pain and suffering, engendering sympathy in the jury during the
penalty-phase closing argument. See State v. Whitfield, 837 S.W.2d
503, 511 (Mo. banc 1992). Nonetheless, inflammatory arguments are always
improper if they do not in any way help the jury to make a reasoned and
deliberate decision to impose the death penalty. Taylor, 944 S.W.2d
at 937.
An argument is personalized only when it suggests a
personal danger to the jury or their families. State v. Copeland,
928 S.W.2d 828, 842 (Mo. banc 1996), cert. denied, ___ U.S.
___, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997); Kreutzer, 928 S.W.2d
at 872. Arguing for jurors to place themselves in the shoes of a party
or victim is improper personalization that can "only arouse fear in the
jury." Storey, 901 S.W.2d at 901; Faught v. Washam, 329
S.W.2d 588, 602[26] (Mo. 1959); State v. Roberts, 838 S.W.2d 126,
131 (Mo. App. 1992) ("Asking jurors to place themselves in the place of
the victim is improper in and of itself."); State v. Long, 684
S.W.2d 361, 366 (Mo. App. 1984); Merritt v. Wilkerson, 360 S.W.2d
283, 287-88 (Mo. App. 1962); F.W. Woolworth Co. v. Wilson, 74
F.2d 439, 442[6] (5th Cir. 1934); State v. Blaine, 427 N.W.2d
113, 115-16 (S.D. 1988); Henker v. Preybylowski, 524 A.2d 455,
459 (N.J. App. 1987); Russell v. Chicago, Rock Island & Pacific
Railroad Co., 86 N.W.2d 843, 848 (Iowa 1957); 75A Am Jur. 2d
Trial Sec. 650 (1998).
Such arguments standing alone do "not always
constitute reversible error, particularly where the trial court has
taken effective action" to correct them. Faught, 329 S.W.2d at
602[26]. However, they are "condemned and uniformly branded improper,
the rationale of rejection being that a juror doing that would be no
fairer judge of the case" than the party or victim herself. Id.
Here, while demonstrating, the prosecutor asked the
jurors to imagine themselves in the place of the victim experiencing
every detail of the crime. True, a similar improper argument may not
require reversal, especially where there is no objection or there is a
curative instruction. See Devier v. Zant, 3 F.3d 1445, 1451
(11th. Cir. 1993) (holding that failure to object to prosecutor’s
demonstration during guilt-phase closing argument of murder case did not
render trial fundamentally unfair); Chandler v. State, 689 S.W.2d
332, 335 (Tex. App. 1985) (holding similar argument improper but cured
by judge’s instruction).
Similar but less extensive arguments for the death
penalty also do not require reversal. People v. Haskett, 640 P.2d
776, 790 (Cal. 1982) (holding less extensive remarks "insufficiently
inflammatory" to merit reversal, though reversing for other improper
argument); State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982)
(holding brief similar argument improper but insufficiently prejudicial
for reversal).
Asking the jurors to put themselves in Dorothy
Martin’s place, "then graphically detailing the crime as if the jurors
were the victims, could only arouse fear in the jury." Storey,
901 S.W.2d at 901. Such argument, unduly infecting the jury’s decision
with passion, was "grossly improper." Id.
In this case, the prosecutor’s inflammatory argument
did not in any way assist the jury in making a reasoned and deliberate
determination to impose the death penalty:
Try, try just taking your wrists during
deliberations and crossing them and lay down and see how that
feels (demonstrating). Imagine your hands are tied up. . . . And
ladies and gentlemen, you’re on the floor, and you’re like that,
with your hands behind your back, and this guy is beating you.
Your is nose broken. Every time you take a breath, your broken
rib hurts. And finally, after you’re back over on your face, he
comes over and he pulls your head back so hard it snaps your
neck. . . . Hold your breath. For as long as you can. Hold it
for 30 seconds. Imagine it’s your last one.
Trial court error, timely preserved, creates the
presumption of prejudice. Lester v. Sayles, 850 S.W.2d 858, 864 (Mo.
banc 1993). See also Storey, 901 S.W.2d at 901; State
v. Tiedt, 206 S.W.2d 524, 529 (Mo. banc 1947).
Since appellant objected to this error both at trial
and in his motion for new trial, and because the improper
personalization denied appellant a fair trial on the issue of punishment,
the sentence of death is reversed. Rule 29.11; State v. Tokar,
918 S.W.2d 753, 761[1] (Mo. banc 1996), cert. denied, ___ U.S.
___, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). Appellant’s other arguments
concerning the penalty phase need not be addressed.
V.
The sentence of death is reversed, and the case is
remanded. In all other respects, the judgment is affirmed.
