Missouri v. Randall Knese
985 S.W.2d 759 (Mo.banc
On the morning of March 23, 1996, one
of Knese’s neighbors heard a dog barking across the street and then a
When the neighbor went to her kitchen door to see what was going on,
Knese, wearing only a pair of sweatpants pulled down around his ankles,
opened the front door, ran into the neighbors house and landed on the
Knese then stood, pulled up his pants, and came into the kitchen,
where he and the neighbor began to yell at each other. When the
neighbor’s boyfriend came into the kitchen, Knese ran in to the bedroom
and sat on the television. After the going into the bathroom, Knese came
back into the kitchen and then ran outside.
Another neighbor saw Knese standing outside, holding a broom and
screaming. When the neighbor drove close to where Knese was standing,
Knese jumped on the hood of the car.
The neighbor noticed that Knese had some scratched on his face, but
did not otherwise appear to be injured. Knese slid off the hood and
opened the passenger-side door. The car gained speed, however, and
before Knese was able to get inside the car, he was dragged along the
car’s side until he eventually let go. The neighbor who was driving the
car called the police when she arrived at work.
The police found Knese lying in the road and noticed that he was
bloody and had multiple cuts and abrasions. When asked how he sustained
the injuries, Knese originally said that the "devil had come to get him."
He later said that "the bitch tried to kill" him. Knese also told a
paramedic that he did not want to be treated differently for what he had
done, Knese was then taken to the hospital.
While one police officer had been taking car of Knese, another
officer investigated Knese’s home. From the front porch of the home,
that officer saw Karin Knese lying motionless on the floor. Her body was
partially nude, with her legs spread apart. The officer found no pulse
or other signs of life. A paramedic later pronounced Ms, Knese dead.
At the hospital, the police advised Knese of his Miranda rights, and
Knese waived them. Knese made four statements about the events that had
occurred earlier in the day. The police audiotaped one of the statements.
Throughout these statements, Knese admitted to killing his wife.
According to Knese, his wife had taken their child and visited Ms.
Knese’s sister-in-law the night before, because Ms. Knese was angry
about Knese’s drug use. When she returned, she told Knese that she
wanted him to leave their home. They both went to sleep in separate
rooms; Ms. Knese slept on the couch.
Knese woke up early the next morning and ingested some cocaine.
About an hour later after using cocaine, Knese went into the living room
to talk about the couple’s problems. Knese laid down by his wife but Ms.
Knese did not want to talk. She pushed him off the couch, but Knese
continued touching her and talking to her.
He forced himself back onto the couch and tried to engage in
foreplay. When Ms. Knese protested, Knese pulled off her pants and
panties. He forced himself on top of her and attempted to have sex with
her; however they did not engage in intercourse because Knese could not
sustain and erection.
Ms. Knese, according to Knese, went "ballistic." The two began to
fight, and Ms. Knese screamed "rape." When she did this, Knese put one
hand over her mouth while he squeezed her neck with the other.
Ms. Knese grabbed a glass lampshade and swung. Knese blocked the
swing with his arm, and the lampshade shattered. Ms. Knese picked up a
piece of glass and swung again. This time she cut Knese’s palm, Knese
then took the glass and slashed her neck. The two fell on the floor,
where Knese began to strangle Ms. Knese.
At one point, his hold was so tight that his thumb went through her
skin. He also bit her neck. When she put a finger in his eye, he head
butted her. At the end of the altercation, Knese stood up, kicked her
head and stood on her neck for five or ten minutes. The jury convicted
him and recommended the death penalty.
STATE v. KNESE
STATE of Missouri, Respondent, v. Randall B. KNESE,
February 09, 1999
Melinda K. Pendergraph, Asst. Public
Defender, Columbia, for Appellant.Jeremiah W. (Jay) Nixon, Atty. Gen.,
Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for Respondent.
Randall Knese appeals from his convictions for the
attempted forcible rape 1
and first degree murder 2
of his wife, Karin Knese, and from the death sentence imposed for the
latter crime. Mr. Knese raises fifteen points of error. We affirm.
On the morning of March 23, 1996, one of Mr. Knese's
neighbors heard a dog barking across the street and then a man yelling.
When the neighbor went to her kitchen door to see what was going on,
Mr. Knese, wearing only a pair of sweatpants pulled down around his
ankles, opened the front door, ran into the neighbor's house and landed
on the couch. Mr. Knese then stood, pulled up his pants, and came into
the kitchen, where he and the neighbor began to yell at each other.
When the neighbor's boyfriend came into the kitchen, Mr. Knese ran into
the bedroom and sat on the television. After then going into the
bathroom, Mr. Knese came back into the kitchen and then ran outside.
Another neighbor saw Mr. Knese standing outside,
holding a broom and screaming. When the neighbor drove closer to where
Mr. Knese was standing, Mr. Knese jumped on the hood of the car. The
neighbor noticed that Mr. Knese had some scratches on his face, but did
not otherwise appear to be injured. Mr. Knese slid off the hood and
opened the passenger-side door. The car gained speed, however; and
before Mr. Knese was able to get inside the car, he was dragged along
the car's side until he eventually let go. The neighbor who was
driving the car called the police when she arrived at work.
The police found Mr. Knese lying in the road and
noticed that he was bloody and had multiple cuts and abrasions. When
asked how he sustained the injuries, Mr. Knese originally said that the
“devil had come to get him.” He later said that “the bitch tried to
kill” him. Mr. Knese also told a paramedic that he did not want to be
treated differently for what he had done. Mr. Knese was then taken to
While one police officer had been taking care of Mr.
Knese in the road, another officer investigated Mr. Knese's home. From
the front porch of the home, that officer saw Karin Knese lying
motionless on the floor. Her body was partially nude, with her legs
spread apart. The officer found no pulse or other signs of life. A
paramedic later pronounced Ms. Knese dead.
At the hospital, the police advised Mr. Knese of his
Miranda rights, and Mr. Knese waived them. Mr. Knese made four
statements about the events that had occurred earlier in the day. The
police audiotaped one of the statements. Throughout these statements,
Mr. Knese admitted to killing his wife. According to Mr. Knese, his
wife had taken their child and visited Ms. Knese's sister-in-law the
night before, because Ms. Knese was angry about Mr. Knese's drug use.
When she returned, she told Mr. Knese that she wanted him to leave their
home. They both then went to sleep in separate rooms; Ms. Knese slept
on the couch. Mr. Knese woke up early that morning and ingested some
cocaine. About an hour after using cocaine, Mr. Knese went into the
living room to talk about the couple's problems. Mr. Knese laid down
by his wife, but Ms. Knese did not want to talk. Ms. Knese pushed him
off the couch, but Mr. Knese continued touching her and talking to her.
He forced himself back onto the couch and tried to engage in foreplay.
When Ms. Knese protested, Mr. Knese pulled off her pants and panties.
He forced himself on top of her and attempted to have sex with her; however
they did not engage in intercourse because Mr. Knese could not sustain
Ms. Knese then, according to Mr. Knese, went “ballistic.”
The two began to fight, and Ms. Knese screamed, “rape.” When she did
this, Mr. Knese put one hand over her mouth while he squeezed her neck
with the other. Ms. Knese grabbed a glass lampshade and swung. Mr.
Knese blocked the swing with his arm, and the lampshade shattered. Ms.
Knese picked up a piece of glass and swung again. This time she cut Mr.
Knese's palm. Mr. Knese then took the glass and slashed her neck.
The two fell to the floor, where Mr. Knese again began to strangle Ms.
Knese. At one point, his hold was so tight that his thumb went through
her skin. He also bit her neck. When she put a finger in his eye, he
headbutted her. At the end of the altercation, Mr. Knese stood up,
kicked her head and stood on her neck for five or ten minutes.
At trial, the State presented physical evidence that
corroborated Knese's confession. A forensic pathologist performed an
autopsy on Ms. Knese and listed the cause of death as manual
strangulation and probable suffocation, combining to cause asphyxiation.
She found multiple abrasions, large amounts of hemorrhage, bruising,
lacerations and cuts about Ms. Knese's head and neck area. The medical
examiner also gave her opinion that sexual assault was probable, based
on the fact that the body was in a prone position with legs spread and
was partially nude, and the fact that Ms. Knese had been killed with the
assailant very close to her body.
Following trial, the jury convicted Mr. Knese of
attempted rape, sentencing him to twenty years imprisonment on that
charge, and of first degree murder. For that crime, the jury
recommended the death penalty.
I. Admissibility of Accused's Statements to Police
Prior to trial, Mr. Knese filed a one page motion to
suppress which moved, in its entirety, “to suppress any and all
statements obtained from the defendant of whatever kind or nature on the
grounds that such statements were obtained in violation of defendants
rights against self-incrimination as numerated in the Fifth-Amendment to
the Constitution of the United States.” Following a hearing, this
motion was summarily overruled, and several of Mr. Knese's statements
given while he was being treated in the hospital emergency room, which
amounted to a detailed confession to the murder and attempted rape of
his wife, were presented to the jury. Mr. Knese contends that the
trial court erred in overruling his motion to suppress, arguing that his
waiver of his right against self-incrimination was not voluntary,
knowing and intelligent.
At the suppression hearing the State presented the
evidence of four police officers. The first officer to speak with Mr.
Knese was an evidence technician, Officer Chestnut, who collected Mr.
Knese's clothes and photographed his injuries. Officer Chestnut first
saw Mr. Knese at approximately 7:30 a.m. and was in his presence on and
off for two hours. He did not ask Mr. Knese any questions, although Mr.
Knese made several statements spontaneously that were not introduced at
trial. He testified that when he initially saw Mr. Knese he was acting
“abnormal” and that he was acting “wild”: “He had a wide open look in
his eyes, far away stare. His eyes were rolling back and forth very
rapidly, staring at the ceiling. He was lying flat on his back. His
body was acting like he was pacing.” Although initially he was “fading
in and out of reality,” later Mr. Knese “calmed down and he seemed like
he was more understanding of what was going on and understanding of what
had transpired.” A second officer, Sergeant Schwendemann, spoke with
Mr. Knese immediately before Officer Chestnut, and described him as
“calm and rational” at that time. The statements made by Mr. Knese to
Sergeant Schwendemann also were not presented at trial.
Detective Harvey, who did testify at
trial, began to interrogate Mr. Knese at approximately 8 a.m. He
testified that, at that time, Mr. Knese appeared “very coherent and
understood what [Detective Harvey] was talking about.” Detective
Harvey advised him of his Miranda rights,3
and Mr. Knese indicated that he understood each of the rights. Mr.
Knese then made a detailed statement describing the altercation with his
wife in which he admitted choking her into unconsciousness. Detective
Harvey returned at 2:20 that afternoon to have Mr. Knese repeat his
confession on audio tape. Before he began the interrogation, Detective
Harvey gave Mr. Knese a form advising him of his Miranda rights, read it
to him as Mr. Knese read along and, after Mr. Knese had agreed, on audio
tape, that he understood the rights he was waiving, had Mr. Knese sign
the waiver. Mr. Knese then gave a detailed forty minute interview
where he described the altercation where he killed his wife. At that
time, Detective Harvey testified, Mr. Knese appeared lucid and coherent.
Detective Harvey again returned to Mr. Knese's bedside at 5:20 the
same afternoon. After again advising Mr. Knese of his Miranda rights,
Detective Harvey asked Mr. Knese if he had had intercourse with his wife
prior to killing her. Mr. Knese indicated that he had attempted to,
but was unable to maintain an erection.
Detective Morrissey also testified at the suppression
hearing and at the trial. He testified that Mr. Knese approached him
at 9:50 that morning, after he had been Mirandized by Detective Harvey,
and described the incident to him in some detail. Detective Morrissey
testified that during this statement and the statements made to
Detective Harvey, Mr. Knese was coherent.
In order for a waiver of Miranda rights to be
operative, the waiver must, under the facts and circumstances in each
particular case, be voluntary, knowing and intelligent.4
Although he did not present specific grounds in his suppression motion,
Mr. Knese claimed during the hearing on that motion, at trial, and in
his motion for new trial that his mental condition rendered his
confession unintelligent. It is not clear what Mr. Knese suggests
caused this deficient mental condition. Mr. Knese presented no
evidence at the suppression hearing. No evidence was produced at any
time, and indeed Mr. Knese does not claim now, that any of the injuries
he suffered or treatment he received were of the kind that would cause
him not to understand the rights he was waiving. In fact, defense
counsel, after asking for an extra week to review Mr. Knese's hospital
records, reported to the trial court that although the records did
contain “rather significant indications ․ that he was in [sic] highly
agitated state,” he did not “think their [sic] is enough in the records
to justify submitting them as part of the motion to suppress the
confession.” The fact that Mr. Knese may have used cocaine earlier in
the day or that Officer Chestnut observed that he was “fading in and out
of reality” some time before waiving his rights are not sufficient to
render his waiver unintelligent: “a deficient mental condition, whether
manifested by delusional behavior or a positive drug test, does not by
itself render a statement unintelligent. A defendant does not have the
constitutional right ‘to confess to his crime only when totally rational
and properly motivated.’ ” 5
Given that Mr. Knese repeatedly waived his Miranda rights over a period
of many hours and gave detailed, coherent statements over that time, the
trial court did not err in overruling defendant's motion to suppress the
confessions as being the product of an unintelligent waiver.
Mr. Knese also claims, for the first time on appeal,
that the confession was inadmissible since the waiver was unknowing and
involuntary. These issues are not preserved for review. “To preserve
an objection to evidence for review, the objection must be specific, and
the point raised on appeal must be based upon the same theory.” 6
There was no plain error in not finding the waiver involuntary or
unknowing. As to knowledge of the rights waived, Mr. Knese stipulated
at the suppression hearing that the officers who questioned him properly
advised him of the substance of his Miranda rights. As to
voluntariness, Mr. Knese analogizes this case to Mincey v. Arizona,7
where the United States Supreme Court held a confession involuntary
because police officers had interrogated a suspect while he was being
treated for a gunshot wound. While Mincey is distinguishable because
the defendant's injuries in that case were much more serious that Mr.
Knese's (Mr. Mincey was nearly in a coma),8
the primary difference between the two cases is that, in Mincey, the
defendant was repeatedly interrogated, despite his grave physical
condition and his repeated insistence that he did not want to answer
unlike in Mincey, Mr. Knese never expressed any desire to remain silent
or to have an attorney present. Indeed, on several occasions Mr. Knese
spontaneously made incriminating statements to police officers who never
questioned him at all. Despite the fact that he was in the hospital at
the time, there is not the slightest evidence in the record that Mr.
Knese's numerous statements were anything less than voluntary, and the
trial court did not plainly err in failing to exclude the confession on
Mr. Knese also argues that the trial court erred in
failing to specifically make a factual finding on the record that his
waiver was knowing, intelligent and voluntary and requests that the
court remand for such findings. This Court has repeatedly emphasized
the requirement that the record be clear that the trial court did make
such findings, especially with regard to voluntariness.10
It is equally clear that this is not a formal requirement, and it is
not necessary that the specific words “knowing and intelligent” must be
used in the trial court's ruling.11
While the Court has remanded for findings on the issue of whether a
confession is knowing and intelligent, this has only been where, as in
Bittick, the trial court's ruling was ambiguous on this issue. In that
case, the trial court had expressed “some confusion” about the state of
the law in its oral findings and appeared to suggest that a finding of
voluntariness was, by itself, sufficient to allow the confession.12
Here the sole issue presented to the court at the suppression hearing
was whether the confession was intelligent. Given that, and the
overwhelming testimony presented at that hearing that Mr. Knese
intelligently waived his rights, we find the court's one sentence ruling
to be a clear indication that the court found Mr. Knese's waiver
The issue of voluntariness merits some discussion,
since this Court has often emphasized that “once the defendant objects
to a confession's admission, there must be, prior to its admission into
evidence, a clearcut determination that the confession was in fact
voluntary,” and that conclusion must “appear from the record with
unmistakable clarity.” 13
We continue to adhere to this principle, but note that, in order to
implicate this rule, the defendant must object to the voluntariness of
the confession. Where, as here, there was no claim made to the trial
court or evidence presented that a confession was involuntary, requiring
the trial court to make such findings would amount to no more than an
exercise in empty formalism. Given that the sole objection interposed
to the admission of the confession was that the waiver was
unintelligently made, it was not error for the trial court to fail to
specify with more particularity its reasons for overruling defendant's
motion to suppress.
II. Admissibility of Crime Scene and Autopsy
Mr. Knese next argues that the trial court erred in
admitting graphic videotape footage and photos of the crime scene, in
admitting autopsy photos, and in allowing various witnesses to refer to
these exhibits while testifying. During the testimony of one police
officer, the State introduced a videotape of the crime scene and played
a portion of the tape for the jury that depicted the living room where
the killing took place. The videotape showed Ms. Knese's nearly naked
body and close-ups of her wounds and bloody and bruised face and neck.
Mr. Knese objected that the videotape was unduly prejudicial due to its
gruesome nature. During the testimony of a second officer, the State
introduced eleven photos of the crime scene, including a number
depicting Ms. Knese's body, and close-up photographs of her injuries.
One of these photographs was later referred to during the later
testimony of a crime scene technician to demonstrate where a piece of
clothing he recovered was found. During their guilt phase closing, the
State referred to the photos and the videotape to argue that the
condition and position of Ms. Knese's body indicated that she was not
killed in self-defense. In the penalty phase closing, the State
referred to one of the crime scene photographs in arguing that the
killing was unreasonably brutal.
The autopsy photos introduced during the testimony of
the medical examiner show various injuries on Ms. Knese's body, on her
hands and arms, inside her mouth and on her head. Some of these
injuries are visible in the crime scene photos and videotape, while many
are not. The medical examiner used these photographs to explain her
As Mr. Knese recognizes, it is within the trial
court's discretion to decide whether potentially inflammatory evidence
should be admitted.14
Even gruesome or graphic depictions are admissible if they demonstrate
the nature and location of wounds, show the location and condition of
the body, or prove an element of the state's case.15
In this case, the condition of the crime scene, of Ms. Knese's body,
and the severity and nature of her injuries were highly relevant to the
key issues in the case: whether a sexual assault had occurred, whether
the killing was in self-defense and whether it was a product of
Thus, these exhibits were admissible and Mr. Knese's
objection is not primarily to the relevance of the matter presented, but
rather to the repeated presentation of this material to the jury.
While we agree with Mr. Knese that graphic depictions of this sort carry
a danger of prejudice, the exact line where particular matter, although
relevant, crosses the line into being more prejudicial than probative is
necessarily a judgment we entrust to the trial court. Here, the trial
court was sensitive to these concerns, excluding several photographs of
Ms. Knese it deemed duplicative, and sustaining the defense's objection
to allowing the jury to view Ms. Knese's body on the videotape a second
time. While graphic, the exhibits in question were highly relevant to
contested issues in the case, and the trial court acted well within its
discretion in concluding that the particular material presented was more
probative than prejudicial.
III. Expert Qualification of the Medical Examiner
Dr. Case, the chief medical examiner for St. Charles
County, performed the autopsy on Ms. Knese and was called by the State
in Mr. Knese's trial. Mr. Knese argues that Dr. Case was erroneously
allowed to give opinions on two matters.
In her autopsy report, Dr. Case found that Ms. Knese
was the victim of a probable sexual assault. Dr. Case testified that
she based this finding on several factors, including the fact that Ms.
Knese was strangled by an assailant at close range, the condition of her
clothes, and the position of her body. Mr. Knese objected to Dr.
Case's testimony regarding that opinion on the ground that this was not
a medical conclusion and that Dr. Case was not, therefore, qualified to
render an opinion on this point. “Because expert testimony is always
fraught with questions of relevancy and competency, the decision to
admit expert conclusions is a matter of trial court discretion that will
not be overturned on appeal absent an abuse of discretion.” 16
While Mr. Knese's point might have some merit if Dr. Case was solely
qualified as a general medical expert, this argument ignores the fact
that Mr. Knese stipulated that Dr. Case was an expert in forensic
pathology. As Dr. Case described, forensic pathology is a subspecialty
of pathology dealing specifically with the work of medical examiners, in
particular determining the cause of death (the immediate physical
condition that precipitated death) and the manner of death (the
circumstances under which the death occurred). Given that the opinion
that the death was probably related to a sexual assault is precisely
within the area of expertise described by the witness, an area of
expertise to which Mr. Knese conceded, the trial court did not abuse its
discretion in allowing Dr. Case to describe her autopsy finding that
Karin Knese appeared to have been killed incident to a sexual assault.
Even if this testimony had been erroneously admitted, no prejudice would
have occurred, since the testimony only suggested in conditional and
probabilistic terms what Mr. Knese himself directly confirmed: that he
was attempting to sexually assault Ms. Knese at the time of the killing.
Mr. Knese also contends that Dr. Case should not have
been allowed to testify as to the stimulant effects cocaine generally
causes in its users. This point was not preserved in the motion for
new trial and, therefore, reviewed for plain error only. While it is
difficult to determine precisely what relevance this general testimony
had to the specific case at hand, it is also difficult to determine how
Mr. Knese's defense might have been prejudiced by Dr. Case's opinion
that cocaine use may cause increased strength and stamina in its users.
Mr. Knese does not explain how he was prejudiced, and there is no
suggestion in the record of any prejudice that would rise to the level
of manifest injustice.
IV. Sufficiency of Evidence of Deliberation
Mr. Knese next argues that there was insufficient
evidence of deliberation to support his conviction for first degree
murder. Deliberation is defined as “cool reflection for any length of
time no matter how brief.” 17
It is not necessary that the actor brood over his or her actions for a
long period of time.18
Rather, it is necessary “only that the killer had ample opportunity to
terminate the attack once it began.” 19
In evaluating the sufficiency of the evidence, this Court reviews all
evidence and inferences drawn therefrom in the light most favorable to
the verdict, and disregards all contrary inferences.20
Viewed in this light, Mr. Knese had ample opportunity
to reconsider his course of behavior toward his wife and to terminate
the beating short of killing her. Mr. Knese told Detective Morrissey
that after he had been strangling Ms. Knese for such a long time that he
was exhausted and could tell that Ms. Knese was losing her strength
because he could barely feel her pulse, he nevertheless got to his feet,
kicked her several times and then stood on her neck until she stopped
moving. This Court has previously found premeditation to exist when a
defendant strangled the victim with his bare hands, and then applied a
towel to the victim's face for several minutes longer to make sure the
victim was dead.21
There was sufficient evidence, in particular Mr. Knese's own statements,
from which a reasonable juror could have concluded that Mr. Knese
deliberated on the killing of Ms. Knese.
V. Guilt Phase Instruction on Range of Sentence
for Attempted Rape
Since Mr. Knese was not a prior, persistent or
dangerous offender, he had a right to demand the jury sentence him for
the attempted rape conviction.22
The jury decided this sentence after returning its guilty verdicts in
the first phase of the trial, but before hearing evidence in the death
penalty phase. Mr. Knese claims that the trial court erred in failing
to instruct the jury as to the range of punishment at the close of the
guilt phase. Section 565.030 outlines the procedure for sentencing in
cases involving a charge of first degree murder and prohibits sentencing
issues from being considered by the trier of fact during the guilt phase:
Where murder in the first degree is submitted ․
without a waiver of the death penalty, the trial shall proceed in two
stages ․ At the first stage the trier shall decide only whether the
defendant is guilty or not guilty of any submitted offense. The issue
of punishment shall not be submitted to the trier at the first stage.23
While the statute is not unambiguous as to precisely
when a jury is to impose sentence for lesser crimes tried together with
a capital charge, it is absolutely clear that a the jury is not to be
instructed on this matter, as Mr. Knese argues, before it has returned
its verdicts as to the guilt of the accused. The trial court did not
err in omitting the range of punishment issue from the jury instructions
at the close of the guilt phase.
VI. Unpreserved Claims of Error
In this appeal, Mr. Knese requests plain error review
of numerous unpreserved claims of error.24
Given the large number of plain error claims advance by Mr. Knese, we
feel compelled to reiterate that “[t]he ‘plain error’ rule is to be used
sparingly and may not be used to justify a review of every point that
has not been otherwise preserved for appellate review.” 25
Mr. Knese “must make a demonstration that manifest injustice or a
miscarriage of justice will occur if the error is not corrected.” 26
A. Penalty Phase Cross-Examination of Defendant
Mr. Knese testified briefly at his penalty phase
hearing, after which the State extensively cross-examined him, including
asking him about prior bad acts, acts which included a past incident in
which he allegedly choked his wife, his drug use, gambling, and
incidents where he drove while intoxicated. Mr. Knese contends this
line of questioning exceeded the scope of the direct examination and
that the discussion of prior bad acts was impermissibly prejudicial.
We examine for plain error only.27
The subject matter of the State's cross-examination
is generally limited to that which is broached in the examination in
“cross-examination need not be confined to a categorical review of the
matters stated in direct examination, but may cover any matter within
the fair purview of the direct examination.” 29
Furthermore, a counsel's failure to object to cross-examination that is
outside the scope of direct examination opens the door for the
particular line of questioning in the cross-examination.30
“The scope of cross-examination ․ is a matter primarily within the
trial court's discretion, with the trial court's ruling not to be
disturbed unless an abuse of discretion is shown.” 31
The trial court also has discretion during the penalty phase of trial
to allow the introduction of any evidence that may assist the jury in
determining the appropriate penalty, especially in cases involving the
The subjects raised by the prosecution were relevant to Mr. Knese's
character and, therefore, relevant to a juror's assessment of the proper
Because these questions related to questions of Mr. Knese's character
properly at issue in the penalty phase of the hearing, the fact that
much of this matter may have been outside the scope of the direct
examination or related to prior bad acts of Mr. Knese was not so
prejudicial as to rise to the level of manifest injustice. The trial
court did not err in choosing not to sua sponte disallow these lines of
B. Victim Impact Evidence
During the penalty phase of the trial, the
prosecution called seven friends and family members of Ms. Knese to
testify as what kind of person she was and to what effect her death had
on their lives. The State also introduced numerous photographs of Ms.
Knese and her family. Section 565.030.4 allows such evidence, within
the discretion of the court. Although Mr. Knese did not object to any
of this evidence at trial, he now seeks plain error review of the extent
of this victim impact evidence.
As Mr. Knese concedes, evidence of
victim characteristics and of the impact of a murder on survivors are
constitutionally permissible types of evidence in a capital sentencing
Mr. Knese argues, however, that Payne permits only a “brief glimpse” of
the life of the victim and that the evidence presented here was much
more than a brief glimpse of the life of Karin Knese. It is certainly
true that one concurring opinion (of the three filed in that case) says
that a State may allow the sentencing jury to see “a quick glimpse of
the life [defendant] chose to extinguish.” 35
But to suggest, as Mr. Knese does, that Payne stands for the
proposition that only a brief glimpse of the victim's life is
constitutionally permissible is to misread that case.
The fundamental rationale announced by the Court in
Payne looks to the fairness of the sentencing phase proceedings. The
majority opinion notes that, just as the defendant is entitled to
present evidence in mitigation designed to show that the defendant is a
“uniquely individual human being,” the State should also be allowed to
present evidence showing each victim's “uniqueness as an individual
human being.” 36
Specifically, “the State has a legitimate interest in counteracting the
mitigating evidence which the defendant is entitled to put in by
reminding the sentencer that just as the murderer should be considered
as an individual, so too the victim is an individual whose death
represents a unique loss to society and in particular to his family.” 37
This evidence is necessary to allow the State to show the “full moral
force” of its evidence and to prevent the victim from becoming “a
faceless stranger at the penalty phase of a capital trial.” 38
Thus, in the majority's view, there is “no reason to treat such
evidence differently than other relevant evidence is treated.” 39
Justice O'Connor's concurring opinion agrees that the
Eighth Amendment provides no cause for treating victim impact evidence
differently from other types of relevant evidence.40
Justice O'Connor also recognizes that this type of evidence has the
potential to be unduly inflammatory, a concern that we share. The
issue, however, is not whether the victim impact evidence presented was
more or less than a brief glimpse of the victim's life, but rather
whether “in a particular case, a witness' testimony or a prosecutor's
remark so infects the sentencing proceeding as to render it
fundamentally unfair,” and, therefore, a due process violation.41
Trial courts have both the power and the
responsibility to ensure that this type of evidence does not infringe on
a defendant's right to due process in sentencing. Under section
565.030.4, the trial court has discretion to exclude victim impact
evidence altogether. Additionally, such evidence must be presented
consistent with the normal rules of evidence,42
meaning that traditional evidentiary rules, including those related to
cumulative evidence and to the weighing of probative value against
prejudicial impact, apply with equal force in a capital sentencing
proceeding. Of course, for these evidentiary rules to aid the
defendant in limiting the extent of victim impact evidence and ensuring
a fair trial, the defendant must bring any alleged violations of these
rules to the attention of the trial court in a timely fashion.
Here, Mr. Knese failed to object to any of the victim
impact evidence, and we are not, therefore, presented with the question
of whether all of the evidence presented would have been admissible had
proper objection been made. No manifest injustice occurred in allowing
the jury to hear the type or extent of victim impact evidence presented
in this case.
C. Improper Argument
Mr. Knese submits twelve remarks made by the
prosecutor during the arguments of the guilt and penalty phases of the
trial that, although they are not preserved in his motion for a new
trial, he claims were improper and have resulted in manifest injustice.
As this Court has previously held: “it is well settled that ‘[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
explanation.’ ” 43
1. Guilt Phase
When describing how Mr. Knese cut his wife thirty
times with a piece of glass, the prosecutor suggested that Mrs. Knese
“each time he cut her, each of those thirty times, she must have cried
out in excruciating pain.” He also argued that “[e]ach of those cries
was a plea for mercy. Each of those cries was a plea for another
moment of life.” Mr. Knese argues that these statements are arguments
of facts outside the evidence and are designed to improperly inflame the
passions of the jury. Generally, a prosecutor may argue conclusions
reasonably derived from the evidence, as long as the prosecutor does not
suggest that he or she has some secret knowledge not presented to the
comments seem to be directed at dramatizing for the jury the numerous
opportunities Mr. Knese had to stop his attack, emphasizing the State's
position on the primary disputed issue in the case, that Mr. Knese
deliberated before killing Ms. Knese. In any case, these comments are
neither so far outside the evidence nor so inflammatory as to constitute
a manifest injustice sufficient to warrant plain error relief.
Mr. Knese next argues that the court plainly erred by
allowing the prosecutor to have the jury sit in silence for five minutes
during his argument to demonstrate how long Mr. Knese stood on Ms.
Knese's neck. Mr. Knese claims that this was improper personalization
and designed to anger and inflame the jury. Contrary to Mr. Knese's
claim, the argument did not invite the jurors to put themselves in Mrs.
Knese's place, but rather to show how long Mr. Knese had to consider
what he was doing as he was killing his wife. The trial court did not
plainly err in allowing this argument.
Mr. Knese contends that the court plainly erred in
allowing the prosecutor to encourage the jury to disregard the court's
instructions by arguing that the jury could only consider second degree
murder once it had unanimously acquitted Mr. Knese of first degree
murder. This statement appears to be an accurate characterization of
the court's instruction, however, and does not, in any case, rise to the
level of manifest injustice sufficient to warrant plain error relief.
Similarly, the prosecutor's comment that a verdict of manslaughter would
be “the most tragic verdict” since it would require a finding that Karin
Knese provoked her own death is not an exhortation to disregard the
judge's instructions sufficient to warrant plain error relief. Arguing
that a particular finding necessary to reach a verdict would be unjust
is not the same thing as urging the jury to disregard the court's
instructions. Indeed, it is an argument to take the instructions
seriously and not to return a lesser verdict unless the evidence
actually supports each element required to return that verdict.
Mr. Knese argues that the prosecutor engaged in
excessive biblical reference during his argument. In arguing that Ms.
Knese did not provoke Mr. Knese to kill her, the prosecutor said “God
help us all if that action (attempting to rape Ms. Knese while high on
cocaine, while their baby slept in the next room) ever comes to be
viewed as justification for taking a life.” The prosecutor said “what
I ask you to do, what I pray that you will do, and what I know you will
do is” return a first degree murder verdict. The prosecutor twice said
“God bless her” when referring to the ferocity of the defense Ms. Knese
put up against Mr. Knese's attack. In the course of remarking upon how
much damage Mr. Knese had to inflict upon Ms. Knese in order to kill her,
the prosecutor said that “[i]t is almost as if the good Lord wants to
make it difficult for someone to take another person's life in this
brutal way.” Viewed in context, these references are, at most,
ambiguous, general references to religious matters, and certainly do not
rise to the level of “excessive biblical or historical references”
criticized by this Court in State v. Debler.45
In that case both the prosecution and defense offered competing
biblical and historical analogies for the factual situation presented
there, and this Court admonished both sides that such argument was, at
best, unhelpful, since it tended to divert the focus of the argument
away from matters actually at issue in the trial.46
In this case, the argument was clearly directed to the facts of the
case, and despite the occasional use of the word “God,” the
prosecution's argument was not designed to appeal to any improper bias
on the part of the jurors. The trial court did not plainly err in
allowing this argument.
Mr. Knese also argues that the trial court plainly
erred in allowing the State to argue that, although no semen was
recovered from the crime scene, there might nevertheless have been semen
present. Although Mr. Knese claims that this argument was outside the
evidence, in fact, given that Mr. Knese confessed to attempting to have
intercourse with the victim and that semen was found on his underpants,
the inference argued by the State was a permissible one. The trial
court did not plainly err in allowing this argument.
Next Mr. Knese argues that “[t]hroughout the guilt
phase argument, the prosecutor trashed Mr. Knese, emphasizing his drug
use, evidence of other crimes.” Allowing the State to refer to the
evidence that Mr. Knese had taken cocaine before he killed his wife was
not plain error. This was evidence before the jury and was arguably
relevant to the question of whether, as Mr. Knese contended, he killed
his wife in self-defense, that is, a reasonable belief that he was in
imminent danger from his wife.
Finally Mr. Knese argues that the trial court plainly
erred in failing to stop the State from opening and closing its argument
with references to Ms. Knese's young son, where the prosecutor noted
that Ms. Knese would not get to see her son take his first steps and
that Mr. Knese had deprived her son of his mother. Mr. Knese is
correct that, in the guilt phase of the trial, such argument is
irrelevant and appears designed to appeal to the jury's emotional
sympathy for Ms. Knese's son. But Mr. Knese did not object to this
argument. And Mr. Knese has not met his burden of showing that these
two references, laid alongside the remainder of the prosecutor's
argument, which focused on the extended brutality of the killing, as
described by Mr. Knese himself, had a “decisive effect” on the jury's
2. Penalty Phase
In the penalty phase opening statement, the
prosecutor told the jury that if it found aggravating circumstances, it
would then consider mitigation and that “if twelve of you agree that
there is mitigating circumstances, you don't have to agree on the same
one, then you weigh the mitigating circumstances.” Mr. Knese argues
this statement misstates the law by informing jurors that they must be
unanimous in order to consider mitigating evidence, in violation of
Mills v. Maryland,48
and McKoy v. North Carolina.49
In point of fact, the prosecutor's statement exactly reflects the
instruction given in this case, which requires the jury to impose a life
sentence if they unanimously agree that mitigating evidence, as
determined by each individual juror, outweighs the aggravating evidence.
What Mills and McKoy prohibit is the requirement that all jurors find
a mitigating circumstance unanimously before any of them can consider it
in weighing aggravating and mitigating circumstances.50
The prosecutor's statement here reasonably describes the law as given
in the court's instruction and does not amount to plain error.
During the penalty phase argument, the State referred
to defendant's cocaine use and argued that the jury should not consider
that as a mitigating factor, and that, in the State's view, the cocaine
use was an aggravating factor. Mr. Knese objects to these statements
because, he claims, “drug use and addiction is mitigating,” and that the
prosecutor's argument “violated Mr. Knese's rights to have jurors
consider mitigation.” Mr. Knese is certainly right that drug
intoxication use may be considered a mitigating factor especially where,
as here, one statutory mitigating circumstance submitted was that the
murder took place while Mr. Knese was under the influence of extreme
mental or emotional disturbance. Mr. Knese, however, cites no
authority for the proposition that the use of illegal drugs may, as a
matter of law, only be considered in mitigation. Given that a penalty
phase jury is bound to consider the character of the defendant,
including whether the defendant has a significant history of prior
criminal activity, it cannot be said that it was plainly erroneous for
the court to allow the prosecutor to argue that cocaine use should be
considered an aggravating, rather than a mitigating, circumstance.
Mr. Knese argues that the State's argument “mocked Mr.
Knese and our criminal justice system” by stating that “[w]e have
enshrined [Mr. Knese] in a panoply of protection of rights, and we have
proved this case and all of these elements beyond a reasonable doubt.”
Mr. Knese apparently believes this remark is an invitation to penalize
Mr. Knese for exercising his constitutional rights. It is unclear how
Mr. Knese thinks these remarks mock the criminal justice system or
invite the jury to do anything improper. We conclude the remarks do
not amount to a plain error sufficient to produce a manifest injustice.
Mr. Knese contends that the prosecution impermissibly
disparaged the defense by suggesting that his argument that he should
not be executed because he was high on cocaine was akin to the Menendez
brothers arguing that they should be treated leniently because they were
orphans. While we would prefer that a prosecutor refrain from
comparing defendants to other famous murder defendants, the basic point
of this argument is that jurors should not consider as a mitigating
factor something that the defendant was responsible for. This is a
fair point. While it is improper, as Mr. Knese points out, to
personally accuse defense counsel of improper conduct,51
Mr. Knese seems to further suggest that it is improper for the
prosecutor to criticize the defense's theory of the case. A primary
purpose of the State's argument in a criminal case is precisely to
attempt to discredit the defendant's theory of the case. No plain
Finally Mr. Knese argues that the prosecutor's
argument that the jury should sentence Mr. Knese to death in order to
“send a message” to others who would consider such a crime was plainly
erroneous. As we have noted before, and as Mr. Knese concedes,
arguments of this sort do not constitute plain error.52
None of the allegedly improper argument by the State
was sufficiently prejudicial to warrant plain error relief.
D. Defense's Peremptory Strikes of Female Jurors
Mr. Knese asserts that his counsel used his
peremptory strikes to exclude women from the jury on the basis of their
gender, and defense counsel disclosed during argument on the motion for
new trial that this had been his strategy. As a general matter,
peremptory strikes may not be used to remove venirepersons based on
Even a criminal defendant may not exercise his or her peremptory
challenges in a discriminatory manner.54
Mr. Knese contends that he is entitled to a new trial because his
attorney used his peremptory challenges in a discriminatory fashion.
Mr. Knese has no standing to raise this claim. As
this Court has held, a criminal defendant may not seek relief from a
judgment based upon an error that was committed at his instance.55
While Mr. Knese claims that his own equal protection rights were
violated by this practice, he does not support this claim, and it is
unclear how, even theoretically, a defendant can violate his own equal
protection rights. Somewhat more plausible is the claim that Mr. Knese
has violated the equal protection rights of the women excluded from the
jury on the basis of their gender.56
While Mr. Knese's actions may amount to a violation of the equal
protection rights of the excluded venirepersons, he does not have
standing to raise that violation to challenge his conviction. In order
to raise such third-party standing, a litigant must “demonstrate that he
has suffered a concrete injury, that he has a close relation to the
third party, and that there exists some hindrance to the third party's
ability to protect its own interests.” 57
Thus, the State has standing to object to the equal protection
violation inherent in a criminal defendant's use of discriminatory
In contrast, Mr. Knese cannot claim to have suffered
a concrete injury by his own exercise of peremptory strikes. The sole
case Mr. Knese cites where a criminal defendant has been given a new
trial due to his own discriminatory exercise of peremptory strikes is
United States v. Huey.59
In that case, two defendants, Mr. Garcia and Mr. Huey, were tried
jointly and both the State and Mr. Garcia objected when Mr. Huey used
all of his peremptory challenges to strike African-American jurors.60
Despite the objections, Mr. Huey was not required to provide a race-neutral
explanation for the strikes. In their joint appeal, the Fifth Circuit
reversed both convictions, but explicitly found only that Mr. Garcia had
standing to assert the equal protection violation of the venirepersons
struck by Mr. Huey. We do not read Huey to hold that a criminal
defendant has standing to complain of violations of venirepersons' equal
protection rights he himself has caused. To the degree that that Huey
stands for this principle, we are inclined to agree with the Seventh
Circuit that Huey was wrongly decided.61
Although “[i]mportant social interests allow a judge to block the
defense from taking certain action ․ [i]t does not follow that by
violating these important social interests a defendant can help himself
to a new trial.” 62
Mr. Knese has no standing to challenge his conviction based on his own
allegedly discriminatory conduct in the use of his peremptory strikes.
E. Voir Dire on Range of Punishment
During voir dire, the trial court asked the venire
whether any members of the panel could not follow the court's
instructions as to the death penalty. Then, those who indicated that
they might were questioned individually by the court and by the
attorneys. After this, both sides were allowed to question the
remaining venirepersons. Mr. Knese asserts that it was plain error for
the trial court not to ask jurors whether they could impose a life
sentence if instructed to by the court. Mr. Knese has cited no
authority for the proposition that it is erroneous for the trial court
to fail to ask, sua sponte, any particular questions during voir dire.
Here Mr. Knese had an opportunity to ask any question he wished or ask
the trial court to do so. In order to complain of insufficient voir
dire, a defendant must attempt to have a specific question asked or, at
a minimum, notify the trial court that he wishes to explore a particular
The trial court did not plainly err in
failing to ask this question sua sponte.
F. Right to be Present at Proceedings
Mr. Knese contends that the trial court plainly erred
in allowing his counsel to stipulate to the admission of three exhibits,
which consisted of Mr. Knese's clothes and blood, without calling the
officer who seized the items, Officer Chestnut. Mr. Knese claims that
this stipulation was made without his permission and violated his right
to confront Officer Chestnut, who did not testify at trial. Mr. Knese
argues that, if Officer Chestnut had been called, he would have repeated
his testimony from the motion hearing that Mr. Knese was fading in and
out of reality when he first saw him, and that such testimony would have
been relevant to determining Mr. Knese's mental capacity to commit the
offense here. We are unsure how the failure of counsel to object to
the admission of physical evidence implicates defendant's right to
confront a witness, and this point does not amount to plain error.
During voir dire, the following exchange occurred:
[Prosecutor]: Hold on. The defendant has left the
The Court: I know that.
[Defense Counsel]: We have no problem. We waive
his appearance for this.
It is unclear from the record for how long Mr. Knese
was absent from the courtroom, and Mr. Knese alleges only that he was
absent for “part of voir dire.” A defendant can waive his right to be
present at all critical stages of his or her trial by voluntarily and
willfully leaving the courtroom.64
The transcript indicates that Mr. Knese voluntarily left the courtroom,
and it is presumed that such an absence is voluntary and willful unless
evidence suggests otherwise.65
Mr. Knese neither claims nor shows that his absence
was anything other than voluntary. Mr. Knese waived his right to be
present at this stage, and no plain error occurred.
G. Mitigating Instruction on Defendant's Inability
to Appreciate the Criminality of His Conduct
Mr. Knese next argues that the trial court erred in
not instructing the jury on the statutory mitigating factor of whether
his capacity to appreciate the criminality of his conduct was
Mr. Knese contends that evidence of his cocaine use at the time of the
incident, his turbulent relationship with his wife and his “passionate
reaction” to their argument all amount to the conclusion that the court
should have included this mitigating factor in the jury instruction.
Knese did not raise this point in his motion for new trial; we review
for plain error only.
The instruction on mitigation submitted to the jury
INSTRUCTION NO. 21
As to Count 1, if you unanimously find that the facts
and circumstances in aggravation of punishment, taken as a whole,
warrant the imposition of a sentence of death upon the defendant, you
must then determine whether there are facts or circumstances in
mitigation of punishment which are sufficient to outweigh the facts and
circumstances in aggravation of punishment. In deciding this question,
you may consider all of the evidence presented in both the guilt and
punishment stages of trial.
As circumstances that may be in mitigation of
punishment, you shall consider:
1. Whether the defendant has no significant history
of prior criminal activity.
2. Whether the murder of Karin Knese was committed
while the defendant was under the influence of extreme mental or
3. The age of the defendant at the time of the
You shall also consider any other facts or
circumstances which you find from the evidence in mitigation of
Mr. Knese relies on Lockett v. Ohio for the
proposition that the Eighth and Fourteenth Amendments to the United
States Constitution prohibit a sentencer from being precluded from
considering relevant mitigating evidence as a basis for a sentence less
The instruction at issue here, however, does not preclude the jury from
considering the evidence to which Mr. Knese refers in determining
whether to impose the penalty of death. To the contrary, the court
instructed the jury to “consider any other facts or circumstances ․ [found]
from the evidence in mitigation of punishment.” The only issue is,
therefore, whether the facts warranted an instruction to the jury of the
mitigating factor outlined in section 565.032.3(6).
Mr. Knese first argues that evidence of his cocaine
use warranted the instruction. The State points out that in this case,
Knese did not offer any evidence, for example, psychiatric testimony, to
demonstrate that his capacity to appreciate the criminality of his
conduct was substantially impaired as a result of drug use. The only
testimony that approached such a contention was the testimony that Mr.
Knese had taken cocaine, his wild behavior after the murder and his
claimed delusion of being chased by the devil. This Court has recently
held that it was not erroneous for the trial court to refuse to offer
this instruction even where there was evidence of intoxication and some
amount of bizarre behavior after a murder.68
Given the slight evidence presented here of Mr. Knese's alleged failure
to comprehend the criminality of his conduct due to cocaine use, there
was no manifest injustice in the failure to give the requested
instruction, especially since the “extreme mental disturbance”
mitigating instruction was given.69
Mr. Knese also argues that his turbulent relationship
with his wife, magnified by the argument the two had just prior to Ms.
Knese's murder, further bolsters the conclusion that the trial court
should have given the “substantially impaired” instruction. In support
of this argument, Knese relies on Cheshire v. State, where the Supreme
Court of Florida held that evidence that the defendant suffered from,
among other things “a perceived affront to his family status and the
emotional distress that accompanies a failing marriage” commanded that
the trial court give an instruction on mitigating factors.70
However, Cheshire is distinguishable from the present case. Cheshire
focused on the trial court's refusal to instruct the jury on Florida's
analogue to Missouri's “extreme mental or emotional disturbance”
mitigating factor, which as noted, was given to the jury.
The trial court's decision not to instruct the jury
on the mitigating factor of whether “the capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law was substantially impaired” did not
constitute plain error.
H. Depravity of Mind Aggravator
Two aggravating circumstances were submitted to the
jury at the close of the penalty phase, including the “depravity of mind”
aggravator, that is:
Whether the murder of Karin Knese
involved depravity of mind and whether, as a result thereof, the murder
was outrageously and wantonly vile, horrible, and inhuman. You can
make a determination of depravity of mind only if you find:
That the defendant committed repeated and excessive
acts of physical abuse upon Karin Knese and the killing was therefore
Mr. Knese did not object to this instruction, but
requests plain error review on the ground that the aggravating
circumstance is unconstitutionally vague, and that there was no evidence
to support its submission.
As we have previously held, this instruction is not
It is also supported by the evidence. In particular, Mr. Knese's
statements and the physical evidence presented at trial were sufficient
for the jury to conclude that Mr. Knese repeatedly attempted to strangle
Ms. Knese and that he caused her death by standing on her neck, killing
her in an unreasonably brutal fashion.
No error occurred in the submission of this
I. Rule 29.07 Proceedings
Finally, Mr. Knese claims that the interrogation,
conducted by the court after trial pursuant to Rule 29.07(b)(4),
regarding the effectiveness of counsel, violates his rights to
assistance of counsel, due process, and to remain silent. This claim
is premature. This interrogation occurs after trial and sentencing
have occurred and, thus, does not affect the propriety of the trial
itself. Perhaps recognizing this, Mr. Knese does not raise the claim
in his motion for new trial. Even in the arguably more appropriate
context of a claim of ineffective assistance of trial counsel, this
argument has been repeatedly rejected by this Court.73
VI. Independent Statutory Review
Section 565.035.3 requires this Court to determine:
(1) Whether the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary factor;
(2) Whether the evidence supports the jury's or
judge's finding of a statutory aggravating circumstance as enumerated in
subsection 2 of section 565.032 and any other circumstance found;
(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering
both [sic] the crime, the strength of the evidence and the defendant.
After careful review of the record and transcript,
this Court finds that the sentence of death imposed for the murder of
Karin Knese was not imposed under the influence of passion, prejudice,
or any other arbitrary factor.
The trial court submitted and the jury found two
aggravating circumstances. First the jury found that the murder
evidenced a depravity of mind as described in section VI.H., supra. As
noted in that section, the evidence supports that finding. The second
aggravating circumstance found was that the murder occurred while Mr.
Knese was attempting to rape Ms. Knese. The evidence, particularly
defendant's own words, supports this finding. This Court finds that
the evidence supports the trial court's finding of one statutory
circumstance as required by section 565.030.4(1), and supports the other
aggravating circumstance found.
Considering the crime, the strength of the evidence,
and the defendant, this Court finds that the sentence is proportionate
to other cases where the sentencer found beyond a reasonable doubt that
the murder was committed while the offender was engaged in commission of
a sexual assault, or that the murder evidenced a depravity of mind.74
The sentence imposed was neither excessive nor disproportionate.75
The judgment of the trial court is affirmed.
566.030, RSMo 1994.
565.020, RSMo 1994.
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
v. Arizona, 451 U.S. 477, 482-83, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
5. State v.
Bucklew, 973 S.W.2d 83, 90 (Mo. banc 1998) (quoting State v. Smith, 944
S.W.2d 901, 911 (Mo. banc 1997)).
6. State v.
Driver, 912 S.W.2d 52, 54 (Mo. banc 1995).
7. 437 U.S.
385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
8. Id. at
398, 98 S.Ct. 2408.
9. Id. at
396-403, 98 S.Ct. 2408.
e.g., State v. Bucklew, 973 S.W.2d 83, 90 (Mo. banc 1998); State v.
Schnick, 819 S.W.2d 330, 336; State v. Bittick, 806 S.W.2d 652 (Mo.
banc 1991); State v. Lytle, 715 S.W.2d 910 (Mo. banc 1986). See also
Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967);
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
973 S.W.2d at 90; State v. Mease, 842 S.W.2d 98, 105 (Mo. banc 1992); Schnick,
819 S.W.2d at 336.
806 S.W.2d at 654.
715 S.W.2d at 915.
v. Wood, 596 S.W.2d 394, 403 (Mo. banc 1980).
v. Mease, 842 S.W.2d 98, 108 (Mo. banc 1992).
v. Skillicorn, 944 S.W.2d 877, 891 (Mo. banc 1997).
565.002(3), RSMo 1994.
v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991).
v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997).
v. Craig, 642 S.W.2d 98, 101 (Mo. banc 1982).
State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973).
22. Section 557.036.2, RSMo 1994.
565.030.2, RSMo 1994.
Rules 29.12(b), 30.20.
v. Tokar, 918 S.W.2d 753, 769 (Mo. banc 1996).
Knese contends that the alleged error with regard to examination on the
topic of the prior choking incident is preserved, based upon the
following colloquy:Q: Now, you said that you had rough times with your
marriage with Karen; you just that a few minutes ago?A: Yes, there have
been rough times.[Defense Counsel]: Your Honor, may we approach the
bench for just a moment?THE COURT: You may.[Defense Counsel]: I hope
you are not going to get-THE COURT: We're not going-[Prosecutor]: He
opened the door.[Defense Counsel]: You opened-THE COURT: Objection
overruled.Defense counsel interposed no further objections during
extensive questioning related to this alleged incident. Mr. Knese
objects to these later questions on hearsay grounds, because they relate
to prior bad acts and because they were outside the scope of direct
examination. In order to preserve such an objection, the objection
must be specific and the theory argued on appeal must be the same as
that below. State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995). Not
only was there no specific objection here, Mr. Knese's counsel did not
actually state an objection. This preserves nothing for review.
546.260.1, RSMo 1994; State v. Gorden, 356 Mo. 1010, 204 S.W.2d 713,
v. Dill, 282 S.W.2d 456, 463 (Mo.1955).
v. Testerman, 470 S.W.2d 526, 528 (Mo.1971).
v. Kreutzer, 928 S.W.2d 854, 874 (Mo.1996).
v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
at 830, 111 S.Ct. 2597 (O'Connor, J., concurring) (quoting Mills v.
Maryland, 486 U.S. 367, 397, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (Rehnquist,
822-23, 111 S.Ct. 2597.
at 825, 111 S.Ct. 2597.
at 827, 111 S.Ct. 2597.
at 831, 111 S.Ct. 2597 (O'Connor, J., concurring).
565.030.4, RSMo 1994.
v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994).
v. Debler, 856 S.W.2d 641, 651 (Mo. banc 1993).
S.W.2d 641, 656 (Mo. banc 1993).
v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993).
U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).
U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).
494 U.S. at 439-44, 110 S.Ct. 1227.
v. Hornbeck, 702 S.W.2d 90, 92-93 (Mo.App.1985); State v. Harris, 662
S.W.2d 276, 277 (Mo.App.1983).
v. Smith, 944 S.W.2d 901, 919 (Mo. banc 1997).
v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89
v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).
v. Leisure, 796 S.W.2d 875, 878 (Mo. banc 1990); section 545.030.1(16),
McCollum, 505 U.S. at 49-50, 112 S.Ct. 2348; Powers v. Ohio, 499 U.S.
400, 405-10, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).
505 U.S. at 55, 112 S.Ct. 2348.
at 55-56, 112 S.Ct. 2348.
F.3d 638 (5th Cir.1996).
States v. Boyd, 86 F.3d 719, 724-25 (7th Cir.1996).
v. Clark, 981 S.W.2d 143, 146 (Mo. banc 1998).
v. Cheeks, 604 S.W.2d 30,32 (Mo.App.1980).
565.032.3(6), RSMo 1994.
U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
v. Johnston, 957 S.W.2d 734, 752 (Mo. banc 1997).
So.2d 908, 911-12 (Fla.1990).
section 565.032.2(7), RSMo 1994.
v. Butler, 951 S.W.2d 600, 605-06 (Mo. banc 1997).
v. Roll, 942 S.W.2d 370, 379 (Mo. banc 1997); State v. Ervin, 835 S.W.2d
905, 931 (Mo. banc 1992).
State v. Johnston, 957 S.W.2d 734 (Mo. banc 1997); State v. Richardson,
923 S.W.2d 301 (Mo.banc 1996); State v. Kinder, 942 S.W.2d 313 (Mo.
banc 1996); State v. Sidebottom, 753 S.W.2d 915 (Mo. banc 1988); State
v. Lingar, 726 S.W.2d 728 (Mo. banc 1987).
Knese also raises the oft-rejected claim that this Court's
proportionality review is unconstitutional. See, e.g., State v. Parker,
886 S.W.2d 908, 934 (Mo. banc 1994). We continue to adhere to this