State of Missouri v. Andre D.
S.W. 2d 100 (Mo.banc 1998)
April 10, 1994, twenty-four year old Andre Morrow was introduced to
Richard Gooch. Gooch’s apartment in St. Louis was known as a safe place
where people could smoke cocaine in "quietness and peacefulness."
Morrow took advantage
of this atmosphere and smoked cocaine with Gooch for much of the
afternoon. Eventually, Morrow left Gooch’s "to go get some money."
In the early hours of
April 11, 1994, Morrow went to an Amoco gas station and stole Lisa
Smith’s Chevy Nova, while Smith paid for her gasoline. Morrow returned
to Gooch’s with Smith’s car and a black purse.
Informing Gooch that he
was going to get more money, Morrow left and traveled to Northwest
Plaza. Still in Smith’s car, Morrow drove close to Yn Ye Kuo-who was
walking towards the restaurant where she worked- and asked, "Where’s the
Sears?" Morrow then grabbed her purse and drove away.
Morrow returned to
Gooch’s later that morning with Kuo’s purse and about $500. He told
Gooch, "Pops, when I go for it-when I go get it, I get it." He then gave
Gooch $40. Gooch and Morrow passed the remainder of the day smoking
The following afternoon
Morrow and his friend Mario Page abandoned Smith’s car and stole Robert
Herod’s Fiero from in front of Herod’s apartment, Later that afternoon,
Morrow and Page purchased a .38 caliber pistol.
The two then traveled
to the corner of Cora and Maragaretta in the City of St. Louis, and saw
eighteen year old Roamel Abercrombie. Abercrombie was walking to a
nearby store to purchase some orange juice. He was carrying one dollar.
Morrow got out of the
car, approached Abercrombie, and said "Give me all your shit, Give me
all you got. If you want I’ll shoot your ass." Morrow fired a shot into
the air, scattering the people in the area. Morrow marched Abercrombie
to a nearby vacant lot and demanded his money. Abercrombie gave Morrow
Morrow took Abercrombie
farther into the lot and murdered him, shooting him in the back of the
head. Morrow then told Page that they needed to get out of town, They
drove to Belleville, Illinois, where they left Herod’s car and stole
Fred Maston’s Oldsmobile Cutlass.
They later returned to
Gooch’s with more cocaine. Morrow explained to Gooch that he had gotten
into a misunderstanding with regards to a drug deal and he had to "put
the little guy to sleep."
After several more car
thefts, Morrow entered into an altercation with John Koprowski as Morrow
was trying to steal his jeep. Koprowski responded that, "I’m not going
to let you do this" and grabbed Morrow’s gun.
He attempted to fight
off Morrow and Page, who were both biting him. Morrow regained control
of the gun and grabbed Koprowski’s keys from the ground. Koprowski
remained on the ground. As Morrow stood above Koprowski, he shouted "Get
up, you son of a bitch"-then he shot Koprowski once in the head.
The bullet entered his
head just above the tip of his nose and traveled through his body until
it came to rest between his ribs. Morrow and Page jumped into the jeep
and before leaving observed that he was still alive. Koprowski bled to
death from the gunshot wound.
Death sentence commuted to life without parole by
Missouri Supreme Court on October 28, 2003.
Supreme Court of Missouri
Case Style: State of Missouri,
Respondent, v. Andre D. Morrow, Appellant.
Case Number: 79112
Handdown Date: 04/21/98
Appeal From: Circuit Court of St. Louis County,
Hon. James R. Hartenbach
Counsel for Appellant: Henry B. Robertson
Counsel for Respondent: Breck K. Burgess
During a three day crime spree in April 1994, Andre
Morrow smoked cocaine at Richard Gooch's apartment, stole a Chevy Nova
and purse, stole another purse, stole a Fiero, shot and killed eighteen
year old Roamel Abercrombie, left town, stole an Oldsmobile Cutlass,
returned to use more cocaine, stole another purse, and attempted to
steal a couple of cars but stopped when circumstances impeded him. Then,
in order to steal John Koprowski's Jeep Grand Cherokee when Koprowski
resisted, Morrow shot Koprowski and before leaving, observed Koprowski
was still alive, staggering through the lot. Koprowski bled to death.
Morrow continued on to steal another purse. Gooch went to the police.
Morrow confessed to all the aforementioned crimes.
At trial in St. Louis County, he was
charged with Koprowski's robbery and murder, stealing of two cars and a
purse, and two attendant counts of armed criminal action. The jury
convicted Morrow of first degree murder and all other charges. The trial
court sentenced Morrow to death for Koprowski's murder and a total of
170 years plus life for the other offenses.
Court en banc holds: (1) The evidence of
uncharged crimes was admissible to present the jury a complete and
coherent picture of the charged crimes and to rebut Morrow's contention
that he lacked the ability to deliberate. All the crimes here, charged
and uncharged, were part of a three day drug binge and crime spree. A
jury could see that during this crime spree Morrow was taking acts that
involved thought and deliberation.
(2) (A) The charged offenses are connected in time,
in manner, in that they are all characteristic of Morrow 's activities
during this time, in motive, and in their dependence and relationship to
one another. Because the charged crimes are all "connected," they were
(B) The evidence relating to each crime is simple and
distinct and not confusing. Morrow admitted his involvement in all the
charged crimes. The trial court did not abuse its discretion by denying
Morrow's motion to sever.
(3) The other crimes evidence is relevant to the
issues of intent and motive. The trial court did not err by including
these theories in its jury instruction.
(4) Morrow did not preserve his
objection that trial court refused to allow him to question prospective
jurors on whether they could consider mitigating evidence in light of
the fact that he had another murder charge pending and whether they
could consider the difference between first and second degree murder.
Morrow was allowed during general voir dire to inquire how evidence of
another murder charge would affect the prospective jurors' ability to
consider second degree murder. While the court refused to allow Morrow
to refer to the element of deliberation or define first and second
degree murder during voir dire, the trial court went to great lengths to
help Morrow's counsel come up with proper questions to probe the
prospective jurors' feelings on this matter.
(5) Fingerprint cards and the use of an alias, in and
of themselves, do not constitute evidence of a prior crime. Morrow's
fingerprint cards did not mention any crimes.
(6) (A) Morrow admits murdering Abercrombie and could
not have been prejudiced by an officer's testimony that someone
implicated Morrow in that murder. (B) There was no prejudice to Morrow
in admitting a police officer's testimony regarding two victims'
non-verbal reactions to Morrow at a police lineup.
(7) There was neither abuse of discretion nor
prejudice in admitting a witnesses' testimony that she drove around a
building, hid behind her car, and felt guilty and afraid after
witnessing the murder.
(8) The trial court did not clearly err in overruling
Morrow's Batson challenges. Hesitation and body language
during questioning was a legitimate basis for using a peremptory strike.
A prospective juror's husband being a juvenile officer was a proper
factor upon which the prosecutor could base a hunch that she might be
overly sympathetic to Morrow. Also, Morrow failed to present any
evidence of similarly situated non-blacks who were not struck.
(9) (A) The trial court did not abuse
its discretion in permitting Abercrombie's mother to rebut Morrow's
characterization of Abercrombie's murder as a drug deal "gone sour." Ms.
Abercrombie did not testify as a victim impact witness. (B) The trial
court did not abuse its discretion by allowing a photo of Abercrombie
strictly for the purpose of identifying him. The discrepancy in the age
of Abercrombie between the time of the photograph and the murder was not
so great as to render the trial court's decision an abuse of discretion.
Although the state referred to Abercrombie as a "little boy," the jury
was aware of Abercrombie's size and age.
(10) This Court has upheld the constitutionality of
the victim impact statute and rejected a claim that it was over broad.
Morrow did not object that the victim impact testimony of Koprowski's
wife was rhetorical, emotionally inflammatory and, therefore,
inadmissible. The Court finds no manifest injustice or miscarriage of
(11) The record demonstrates that Dr. Cuneo had seen
and relied upon a presentence report for certain factual information.
The trial court did not err in overruling Morrow's only objections -- to
foundation. As to his unpreserved arguments, the Court finds no manifest
injustice or miscarriage of justice.
(12) The Court has rejected Morrow's argument that "when
one aggravator has been multiplied into four, it was probably given
undue weight." The Court need only find that one statutory aggravating
factor exists to affirm a death sentence. Overwhelming and uncontested
evidence shows that, beyond a reasonable doubt, Morrow was perpetrating
a robbery when he murdered Koprowski.
(13) The Court has rejected the argument that the
Missouri's death penalty statute is unconstitutional because it prevents
consideration of relevant mitigating evidence.
(14) The trial court did not err by overruling
Morrow's objections to various remarks made in the state's penalty phase
closing argument. As to unpreserved claims of error, the Court finds no
manifest injustice or miscarriage of justice arising from the state's
(15) There is no evidence that the
judge imposed the death sentence under the influence of passion,
prejudice, or any other arbitrary factor. Overwhelming evidence supports
finding Morrow murdered Koprowski during a robbery, and sufficient
evidence supports all four statutory aggravating circumstances. Morrow's
sentence is neither excessive nor disproportionate.
Opinion Author: William Ray Price, Jr., Judge
Opinion Vote: AFFIRMED. All concur.
Opinion modified by Court's own motion on May 26,
1998. This substitution does not constitute a new opinion.
A jury convicted Andre Morrow of first degree murder
pursuant to section 565.020, RSMo 1994, for murdering John Koprowksi on
April 13, 1994. Morrow was also convicted of one count of robbery in the
first degree, section 569.020, RSMo 1994, one count of robbery in the
second degree, section 569.030, RSMo 1994, two counts of armed criminal
action, section 571.015, RSMo 1994, and two counts of felony stealing,
section 570.030, RSMo 1994. The trial court sentenced Morrow to death
for Koprowski's murder and a total of 170 years plus life for the other
This Court has exclusive appellate jurisdiction
because a death sentence was imposed. Mo. Const. art. V. sec. 3. We
On April 10, 1994, twenty-four year
old Andre Morrow was introduced to Richard Gooch. Gooch's apartment in
St. Louis was known as a safe place where people could smoke cocaine in
"quietness and peacefulness." Morrow took advantage of this atmosphere
and smoked cocaine with Gooch for much of the afternoon. Eventually,
Morrow left Gooch's "to go get some money."
In the early hours of April 11, 1994, Morrow went to
an Amoco gas station and stole Lisa Smith's Chevy Nova, while Smith paid
for her gasoline. Morrow returned to Gooch's with Smith's car and a
black purse. Informing Gooch that he was going to get more money, Morrow
left and traveled to Northwest Plaza. Still in Smith's car, Morrow drove
close to Yn Ye Kuo - who was walking towards the restaurant where she
worked - and asked, "Where's the Sears?" Morrow then grabbed her purse
and drove away. Morrow returned to Gooch's later that morning with Kuo's
purse and about $500. He told Gooch, "Pops, when I go for it - - when I
go get it, I get it." He then gave Gooch $40. Gooch and Morrow passed
the remainder of the day smoking cocaine.
The following afternoon Morrow and his friend Mario
Page abandoned Smith's car and stole Robert Herod's Fiero from in front
of Herod's apartment. Later that afternoon, Morrow and Page purchased a
.38 caliber pistol. The two then traveled to the corner of Cora and
Maragaretta, in the City of St. Louis, and saw eighteen year old Roamel
Abercrombie. Abercrombie was walking to a nearby store to purchase some
orange juice. He was carrying one dollar. Morrow got out of the car,
approached Abercrombie, and said "Give me all your shit, Give me all you
got. If you want, I'll shoot your ass." Morrow fired a shot into the air,
scattering the people in the area. Morrow marched Abercrombie to a
nearby vacant lot and demanded his money. Abercrombie gave Morrow his
dollar. Morrow took Abercrombie farther into the lot and murdered him,
shooting him in the back of the head.
Morrow then told Page that they needed
to get out of town. They drove to Belleville, Illinois, where they left
Herod's car and stole Fred Maston's Oldsmobile Cutlass. They later
returned to Gooch's with more cocaine. Morrow explained to Gooch that he
had gotten into a misunderstanding with regards to a drug deal and he
had to "put the little guy to sleep."
That night Morrow went to a Shell station and
approached Marsha Timm, while she was pumping gasoline into her car.
Morrow stuck a gun in the side of her abdomen and said, "Give me you're
[sic] handbag or I'll shoot." After initially refusing, Timm relented
and let Morrow take her purse.
Sometime after midnight, Page stole Pornfiro
Pinchay's Toronado from a parking space near Pinchay's home. (Morrow had
abandoned Maston's car after it developed a flat tire.) At about 4:00
a.m., Morrow and Page left Gooch's apartment in Pinchay's car. Morrow
and Page attempted to steal a 1989 Camero that belonged to the wife of
Brad Rosenthal. They abandoned this plan after realizing that Rosenthal
was watching them from his living room window. They later found a truck
they wanted to steal at a Mobil station. This plan, however, was also
abandoned when the owner returned to the truck.
Committed to stealing another automobile, Page and
Morrow continued their search at the YMCA parking lot, in Brentwood.
There, they came upon John Koprowski and his new Jeep Grand Cherokee.
Morrow approached Koprowski and demanded his keys. Page also approached
to take Koprowski's wallet. Koprowski responded that, "I'm not gong to
let you do this" and grabbed Morrow's gun. He attempted to fight off
Morrow and Page, who were both biting him. Morrow regained control of
the gun and grabbed Koprowski's keys from the ground. Koprowski remained
on the ground. As Morrow stood above Koprowski, he shouted "Get up, you
son of a bitch" - then he shot Koprowski once in the head. The bullet
entered Koprowski's head just above the tip of his nose and traveled
through his body until it came to rest between Koproswki's ribs in his
back. Morrow and Page jumped in Koprowski's jeep and, before leaving,
observed that Koprowski was still alive, staggering through the lot.
William Lindenmayer heard the gunshot and drove into
the YMCA's parking lot. He saw Koprowski stagger away from the Toronado,
then collapse. Lindenmayer placed his jacket over Koprowski and then
went into the YMCA for help. An ambulance arrived and took Koprowski to
St. Mary's Hospital. Koprowski bled to death from the gunshot wound.
Morrow and Page continued on. Now in
Koprowski's jeep, Morrow drove to downtown St. Louis. Morrow found
Sandra Merriman at the Southwestern Bell building. Merriman was using
the building's revolving door to go to work when it suddenly stopped
moving. Merriman turned to see Morrow with his hand on her purse. Morrow
said, "Give me that, motherfucker." Morrow then pulled Merriman
backwards, took her purse, and left in Koprowski's jeep.
Morrow returned to Gooch's later that morning. Page
sold their gun for drugs at a nearby apartment. Morrow became irritated
with Page because he was unsatisfied with the quality and quantity of
the cocaine Page had purchased. Page then left to burn Koprowski's jeep.
Morrow grew concerned after seeing news reports
covering Koprowski's murder. He discussed with Gooch his need to get out
of town. He considered going to Kansas City to rob a bank. Morrow also
talked of putting Page "to sleep" before he left. This caused Gooch to
fear for his own safety. Gooch left Morrow at his apartment and went to
Morrow confessed to all the aforementioned crimes. At
trial in St. Louis County he was charged with the robbery and murder of
John Koprowski, the stealing of Lisa Smith's car, the stealing of Robert
Herod's car, the forcible stealing of Yn Ye Kuo's purse, and two
attendant counts of armed criminal action. (FN1) Morrow's defense at
trial was that his cocaine addiction, coupled with a "mental or
emotional disturbance," rendered him unable to deliberate. Therefore, he
argued, it was impossible for him to form the specific intent necessary
to support a charge of murder in the first degree. See sec.
565.020 ("A person commits the crime of murder in the first degree if he
knowingly causes the death of another person after deliberation
on the matter." (emphasis added)).
The jury convicted Morrow of first degree murder and
found him guilty on all other charges. The court found Morrow to be a
class X offender, based on fourteen prior convictions. In addition to
the sentence of death, Morrow received fifty years each on two counts of
armed criminal action, twenty years each on two counts of stealing a
motor vehicle, and thirty years for robbery in the second degree.
II. Issues on Appeal
Morrow alleges the following instances
of trial court error: 1) the court erred by admitting evidence of the
uncharged crimes of stealing, robbery, and murder because the offenses
were not logically relevant nor necessary to prove the charged crimes;
2) the court erred in denying his motion for misjoinder and abused its
discretion in refusing to sever counts V-VII because those offenses were
not parts of the same transaction or common scheme or plan and were not
of the same or similar character; 3) the court erred in giving the
state's version of MAI-CR3d 310.12, which erroneously applied the law of
other crimes because it allowed other crimes to be considered on
theories of motive and intent which are unsupported by the record; 4)
the court erred in refusing to let Morrow question prospective jurors on
whether they could consider mitigation of punishment although he had
another murder charge pending and whether they could consider the
difference between first and second degree murder because this denied
Morrow the ability to intelligently exercise challenges for cause and
peremptory strikes; 5) the court abused its discretion in overruling
Morrow's objection to the admission of his fingerprint cards as evidence
because they were prejudicial evidence of an unrelated offense; 6) the
court erred in overruling Morrow's hearsay objection to a statement by
Mario Page because this denied him the right to cross examine the
witness against him; 7) the court erred in overruling Morrow's
objections to testimony of the fear felt by witnesses Charles, Kuo, and
Browning because it was irrelevant and served no purpose but to inflame
the jury; 8) the court clearly erred in sustaining the state's
peremptory strikes of black venirewomen Gordon and Irving because the
state's explanations were pretextual, in violation of Batson ; 9)
the court abused its discretion in allowing the testimony of Everlida
Abercrombie and admitting a photograph of Roamel Abercrombie because
both constituted impermissible victim impact evidence; 10) the court
erred in admitting victim impact testimony of Pamela Koprowski because
the statute and the evidence exceed what is allowed by the Eighth and
Fourteenth amendments; 11) the court erred in overruling Morrow's
objections to the state's cross-examination of Dr. Cuneo with a
presentence report and the admission of that report into evidence
because the state failed to lay a foundation showing that Cuneo had seen
or relied on the report, and this brought hearsay and incompetent
opinion evidence to bear on punishment; 12) the trial court erred in
submitting five statutory aggravating circumstances over objection
because they were unsupported by the record, multiplicative, and failed
to narrow the sentencer's discretion; 13) the court erred by overruling
Morrow's motion to ask the court to refrain from giving MAI-CR3d 313.40
to 313.48 because the statutory and instructional scheme violates the
Eighth Amendment because it allows a single juror to block consideration
of mitigating evidence and prevent a life sentence; 14) the court erred
in overruling Morrow's objections to the state's penalty phase closing
argument because the remarks were unsupported by evidence, inflammatory,
and urged the death penalty based on factors not relevant to the crime
or the character of the defendant in violation of the Eighth Amendment
and due process of law; 15) the trial was infected with passion and
prejudice, the statutory aggravating circumstances were insufficient to
support a sentence of death, and the death sentence is disproportionate
to that imposed in other similar cases.
Standards of Review
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. Tokar , 918 S.W.2d 753, 761 (Mo. banc 1996) (citation
omitted). We review the facts in the light most favorable to the verdict.
State v. Hutchison , 957 S.W.2d 757, 759 (Mo. banc 1997).
The trial court is vested with broad discretion to admit evidence at
trial and we will only reverse if this discretion was clearly abused.
State v. Simmons , 944 S.W.2d 165, 178 (Mo. banc 1997).
"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." State v. Driver , 912 S.W.2d 52, 54
(Mo. banc 1995). Issues that were not preserved may be considered only
if the court finds that manifest injustice or miscarriage of justice has
resulted therefrom. See Rule 30.20; State v. Simmons
, 955 S.W.2d 729 (Mo. banc 1997).
III. Evidence of Uncharged Crimes
Morrow maintains that the trial court
erred by admitting evidence of the uncharged crimes that Morrow
participated in. Specifically, Morrow contests the admission of evidence
regarding the robbery and murder of Roamel Abercrombie, the theft of
Fred Maston's Oldsmobile, the theft of Pornfiro Pinchay's Toronado,
(FN2) the robbery of Marsha Timm, and the robbery of Sandra Merriman. We
find this evidence admissible to present the jury a complete and
coherent picture of the charged crimes and to rebut Morrow's contention
that he lacked the ability to deliberate .
Evidence of a Coherent Picture
We addressed this issue in a similar
context in State v. Harris , 870 S.W.2d 798, 810 (Mo. banc
1994), cert. denied, 513 U.S. 953 (1994). In Harris
, evidence was admitted in a murder case that the defendant had said
he wanted guns "to do a drive-by shooting" and that he was going to a
lounge to kill another individual. We stated,
The general rule concerning the
admission of evidence of uncharged crimes, wrongs, or acts is that
evidence of prior uncharged misconduct is inadmissible for the
purpose of showing the propensity of the defendant to commit such
crimes. State v. Bernard , 849 S.W.2d 10, 13 (Mo. banc
1993). Exceptions to the general rule provide for the admission of
evidence that tends to establish motive, intent, the absence of
mistake or accident, or a common plan or scheme. Id . An
additional exception is recognized for evidence of uncharged crimes
that are part of the circumstances or the sequence of events
surrounding the offense charged. State v. Wacaser ,
794 S.W.2d 190, 194 (Mo. banc 1990); State v. Flenoid
, 838 S.W.2d 462, 467 (Mo.App. 1992); State v. Davis ,
806 S.W.2d 441, 443 (Mo.App. 1991). This evidence is admissible to
present a complete and coherent picture of the events that
transpired. Flenoid at 467. In this case, the evidence
of Harris' planned use of the gun to commit a drive-by shooting was
interconnected to and nearly contemporaneous with the murder of
Willoughby, and it set the context for that offense. It is evidence
that added to the complete and coherent picture of the murder and
was, therefore, properly admitted.
Id. See also State v. Skillicorn
, 944 S.W.2d 877, 887 (Mo. banc 1997), cert. denied, 118 S.Ct.
568 (1997); State v. Roberts , 948 S.W.2d 577, 591 (Mo.
banc 1997), cert. denied, 118 S.Ct. 711 (1998).
As in Harris , these uncharged crimes
were admissible to present to the jury a complete and coherent picture
of the Koprowski robbery and murder, the Kuo robbery, and the theft of
Lisa Smith's and Robert Herod's automobiles. All the crimes here,
charged and uncharged, were part of a three day drug binge and crime
spree. Between the early hours of April 11 and the morning of April 13,
Morrow murdered two people, stole four cars, attempted to steal two more
cars, and robbed three people. The time between the uncharged crimes and
the charged crime of Koprowski's murder was less than thirteen hours.
Although Morrow would have liked to limit the focus of the jury's
attention to only five of the many crimes he committed during the crime
spree, those crimes alone would not have fully and fairly presented a
complete and coherent picture of the crimes charged and the whole truth
to the jury.
Evidence of Deliberation
Morrow put his ability to deliberate
at issue from his opening statement to his closing argument. (FN3)
Morrow insists that as a result of his cocaine binge, he lacked the
ability to deliberate. One expert witness testified that Morrow was
reduced to an automaton, and that the cocaine rendered him incapable of
deliberating prior to his shooting of Mr. Koprowski.
Because deliberation is something the
jurors can not see and is seldom capable of direct proof, "'[f]indings
of deliberation depend usually 'upon an inference reasonably drawn from
the evidence and circumstances surrounding the act.'" State v.
Kenley , 693 S.W.2d 79, 81-82 (Mo. banc 1985), cert. denied
, 475 U.S. 1098 (1986) (citation omitted). In Roberts
, appellant murdered a woman, then stole her car. There we held that
evidence of appellant's statement that he wanted a gun to kill the
person that later stole his victim's car from him was admissible to show
a coherent picture of the charged crime and to show that the defendant
had the ability to deliberate. Roberts , 948 S.W.2d
at 591. See also Skillicorn , 944 S.W.2d at 887 (evidence
of a subsequent assault was relevant to establish defendant's
deliberation in a murder earlier that day).
Morrow argues that the only relevant
inquiry is into his mental state at the time he murdered Koprowski.
Morrow himself, however, broadened this inquiry by arguing that his
cocaine addiction rendered him incapable of deliberating over a long
period of time - a period of time that included the time when he
murdered both Koprowski and Abercrombie.
A jury could see that during this crime spree Morrow
was undertaking acts that involved thought and deliberation. This
evidence demonstrated that Morrow was not "reduced to an automaton." For
exmple, evidence of deliberation is found in the circumstances
surrounding the Abercrombie murder and the theft of Maston's Oldsmobile.
An inference of deliberation arises when observing the way Morrow
marched Abercrombie to a vacant lot before killing him. In addition,
there was evidence of his attempts to cover up his crime. Immediately
after murdering Abercrombie, Morrow reasoned that he needed to get out
of town. He did just that, leaving the car used when murdering
Abercrombie in Illinois and stealing Maston's Oldsmobile to return to St.
Louis. Further, when commenting on the murder, Morrow spoke of a
misunderstanding and, subsequently, having to "put the little guy to
sleep." Instead of speaking of what he instinctively did or what
suddenly happened, Morrow spoke of the murder as something he "had to
do." This indicated that he felt that "killing another human being was
the appropriate response. . . ." Roberts , 948 S.W.2d at
591. A jury could reasonably infer that Morrow deliberated when deciding
what he "had to do." (FN4)
Other examples of Morrow's ability to
deliberate are found in the circumstances surrounding the robberies of
Marsha Timm and Sandra Merriman. Timm and Merriman were deliberately
selected by Morrow because they were both carrying handbags and both
appeared vulnerable. Morrow waited until Merriman was inside a revolving
door before he robbed her and he robbed Timm at night, while she was by
herself pumping gas into her car. As with the other crimes, these
circumstances show that Morrow was not an "unthinking zombie" but a
person capable of evaluating opportunities and taking deliberate actions.
The evidence was also properly used to impeach the
credibility of Morrow's pharmacologist, Roswell Evans, who said that
Morrow was unable to deliberate. Questioning about this evidence made
Evans concede that Morrow engaged in "purposeful" behavior and that
Morrow may have been making some judgments in the period of time
surrounding the murder of Koprowski.
A tension necessarily exists between excluding
evidence of uncharged crimes and admitting evidence to show the complete
and coherent picture of the crime at issue. Admission of such evidence
requires a "balancing of the effect and value" of the evidence and "rests
within the sound discretion of the trial court." State v. Bernard
, 849 S.W.2d 10, 13 (Mo. banc 1993). Special care should be
taken by the trial court in determining this balance, especially when
the evidence of the uncharged crimes extends too far in time or nature
from the crime at issue. Here, the evidence in question was probative of
the issues of deliberation and was so intertwined with the evidence of
the charged crimes that it easily passes the test set out in State
v. Harris , State v. Skillicorn , State v.
Roberts, and State v. Bernard, as well.
The trial court did not abuse its discretion. Point
IV. Joinder & Severance
Morrow maintains that the trial court
erred by refusing to dismiss the charges against him for misjoinder and
that it abused its discretion by denying his motion to sever. Whether
joinder is proper or improper is a question of law. See Rule
23.05; State v. Simmons , 815 S.W.2d 426, 430 (Mo. banc.
1991). If joinder is improper, then severance is required. Id .
However, even if joinder is proper, the trial court may sever the
charges if it believes the defendant will suffer substantial prejudice
if the charges are not tried separately. Rule 24.07. The decision
regarding severance is left to the sound discretion of the trial court.
State v. McCrary , 621 S.W.2d 266, 272 (Mo. banc 1981) (citation
Morrow maintains the trial court erred
in joining the charges relating to the robbery and murder of Koprowski
with the charges of stealing Smith's car, forcibly stealing Kuo's purse,
and stealing Herod's car. We favor the liberal joinder of criminal
offenses. State v. Simmons , 815 S.W.2d 426, 428 (Mo. banc
1991). Rule 23.05 permits joinder of two or more acts that "are
connected or that constitute parts of a common scheme or plan." "Connected"
is defined as: "[j]oined; united by junction, by an intervening
substance or medium, by dependence or relation, or by order in a
series." Black's Law Dictionary 302 (6th ed. 1990). In Webster's, "connected"
is defined as: "joined or linked together a series, having the parts or
elements logically related a view of the problem or continuous."
Webster's International 480 (3d ed. 1981).
The charged offenses are all connected.
The offenses are connected in time. The two robberies, the two car
thefts, and the murder were not isolated acts, but part of a crime spree
that lasted less than three days. The offenses were a continuous chain
of criminal activity, drug use, robbery, and murder. The offenses are
connected in that they all occurred immediately after Morrow first met
Richard Gooch and discovered that Gooch had a comfortable place to smoke
cocaine. During those three days, Morrow never even changed clothes. The
crime spree did not end until Gooch himself turned Morrow over to the
police. The offenses are connected in manner, in that they are all
characteristic of Morrow 's activities during this time - stealing cars
and purses. The offenses are connected in that they were committed with
a similar motive - to procure funds to buy cocaine. Finally, the
offenses are connected by their dependence and relationship to one
another. Morrow used the car he stole from Smith to rob Kuo of her purse
and Herod of his Fiero. Morrow used Herod's Fiero to steal Maston's
Cutlass. Because of the disablement of Maston's Cutlass, Morrow's
accomplice, Mario Page, stole Pinchay's Toronado. Morrow and Page then
used Pinchay's Toronado to rob and murder Mr. Koprowski.
Because the charged crimes are all "connected," they
were properly joined. The trial court did not error. Point denied.
Morrow claims, in the alternative,
that the trial court abused its discretion by denying Morrow's motion
for severance. Severance is proper only if the defendant shows that he
will suffer substantial prejudice if the offenses are not tried
separately and the court finds the existence of bias or discrimination
requiring separate trials of the offenses. Rule 24.07
In determining whether Rule 24.07 demands severance
in a particular case we look at the number of offenses joined, the
complexity of the evidence, and the likelihood that the jury can
distinguish the evidence and apply it, without confusion, to each
offense. See State v. Conley , 873 S.W.2d 233, 238
(Mo. banc 1994); McCrary, 621 S.W.2d at 272. In addition,
we have recognized that "any prejudice may be overcome where the
evidence with regard to each crime is sufficiently simple and distinct
to mitigate the risks of joinder." Conley , 873 S.W.2d at
The evidence relating to each crime is "simple and
distinct." Morrow admitted to his involvement in all the charged crimes
and there are no allegations of confusion on the part of the jury in
sorting through the evidence with regards to each crime. The trial court
did not abuse its discretion by denying Morrow's motion to sever. In
fact, as discussed before, the evidence of these crimes, whether charged
together or not, was necessary to provide the jury a complete and a
coherent picture of the crime charged and was relevant to Morrow's
deliberation defense. Point denied.
V. Jury Instruction
Morrow alleges trial court error in
its submission of a jury instruction that allowed the other crimes
evidence to be considered on the issue of motive and intent. The court's
instruction, an alternative version to MAI-CR3d 310.12, stated:
If you find and believe from the evidence that
the defendant was involved in offenses other than the one [sic] for
which he is now on trial, you may consider that evidence on the
issue of motive or intent or presence of a common scheme or
plan of the defendant. You many not consider such evidence for any
Morrow maintains that the theories of motive and
intent are not supported by the record. (FN5) First, Morrow disregards
the fact that the instruction told the jury that it could consider
uncharged crimes evidence on the issue of motive or intent, not
motive and intent. Second, as decided in Point III, supra
, the jury could properly have considered the uncharged crimes evidence
to infer that Morrow had the ability to deliberate when murdering
Koprowski. Intent is necessarily a part of reflection, or deliberation.
Since the jury could properly have considered other crimes evidence on
the issue of deliberation, it could also properly have considered other
crimes evidence on the issue of intent. Since the evidence is clearly
admissible for that purpose, the trial court did not err by including
the theory in its jury instruction. Point denied.
VI. Voir Dire
Morrow alleges that the trial court
refused to allow him to question prospective jurors on whether they
could consider mitigating evidence in light of the fact that he had
another murder charge pending and whether they could consider the
difference between first and second degree murder. Morrow contends that,
subsequently, he was unable to exercise his challenges for cause and
peremptory strikes intelligently. What questions may be asked during
voir dire is left to the trial court. State v. Copeland ,
928 S.W.2d 828, 852 (Mo. banc 1996), cert. denied, 117 S.Ct. 981
(1997). "We review the trial court's ruling for abuse of discretion and
ask 'whether there is a real probability of injury to the [defendant].'"
State v. Brown , 902 S.W.2d 278, 285 (Mo. banc 1995),
cert. denied, 116 S.Ct. 679 (1995) (citation omitted).
Morrow contends that the trial court
abused its discretion by refusing to allow him to question prospective
jurors as to whether they could still consider mitigating evidence
knowing that he had another murder charge pending. The record shows,
however, that this objection was not preserved. The trial court did not
prohibit Morrow from asking this question, but merely prohibited him
from asking it during small group voir dire. The trial court explained:
I don't believe you can be specific in discussing
what matters of evidence in this particular portion of the voir dire
examination. This has to do with their philosophical, religious,
personal feelings about the death penalty, generally.. . . But at
least at this stage of the proceeding I think that it exceeds the
scope of what I intended this voir dire to be, this threshold voir
dire, on death penalty. And so I'm going to sustain her objection
and we can discuss it at the end of the day when we have a little
more time, rather than up here at the sidebar.
The trial court obviously wanted to wait until the
prospective jurors were out of the small groups before allowing this
question to be asked. Morrow does not point to any place during the
general voir dire where he was precluded from addressing the matter in
question. In fact, the record shows that Morrow was allowed during
general voir dire to inquire how evidence of another murder charge would
affect the prospective jurors' ability to consider second degree murder.
Because we find no manifest injustice or miscarriage
of justice, we do not review for plain error. See Rule 30.20.
Element of Deliberation
Morrow maintains the that the trial
court prohibited questioning regarding the difference between first and
second degree murder. The record shows that the court refused to allow
Morrow to refer to the element of deliberation. The trial court also
refused to provide the prospective jurors with a definition of first and
second degree murder during voir dire. Morrow claims that these
restrictions prohibited him from intelligently exercising his peremptory
and for cause strikes.
"'Counsel may not tell prospective jurors what law
will be applied in the case or what instructions will be given.'"
Brown , 902 S.W.2d at 286 (citation omitted). Further, the
record undermines Morrow's arguments because it reveals that the trial
court went to great lengths to help Morrow's counsel come up with proper
questions to probe the prospective jurors' feelings on this matter. In
fact, it was Morrow who abandoned this line of questioning after being
permitted to ask the following questions:
"If the court were to instruct you on different
degrees of homicide, can you keep an open mind and listen to the
evidence that you hear and apply that to those instructions?"
"Is there anyone here who cannot consider a lesser degree of
homicide when someone is charged with murder in the first degree?"
"Is there anyone who believes that if a gun is involved in a
shooting it was a planned act, simply because a gun was involved the
"I explained to you that there were different degrees of homicide. .
. And in all of these homicides a gun could be used, a weapon or gun
involved. Do any of you believe just because a gun is used that it
is a murder first degree case, and that you would not consider a
lesser degree of homicide?"
The trial court did not abuse its discretion. Point
VII. Fingerprint Evidence
Morrow contends that the trial court
erred when it admitted into evidence Morow's 1987 fingerprint cards. The
fingerprints on these cards matched those prints lifted from Brad
Rosenthal's wife's Camero. The cards were dated "1987" and showed that
Morrow used an alias - "Eric Stubbs." Morrow argues that the cards were
prejudical evidence of an unrelated offense.
Fingerprint cards, in and of themselves, do not
constitute evidence of a prior crime. See State v. Blair
, 631 S.W.2d 91, 94 (Mo.App. 1982); State v. Perryman
, 851 S.W.2d 776, 779 (Mo.App. 1993). Likewise, use of an alias does
not constitute "'clear evidence associating appellant with other crimes.'"
Brown , 902 S.W.2d at 287 (citation omitted).
The fingerprint cards here, however, were introduced
by a police officer who testified that as an "intake officer" he would
obtain the subject's name for the fingerprint card off the "booking
sheet." Morrow argues that this testimony put the neutrality of the
fingerprint cards at issue - as the jury could have inferred that Morrow
was booked for a crime in 1987. Morrow relies on Georgia precedent as
support for his contention that the fingerprint evidence "prejudicially
put [his] character on trial." However, the case he cites, Manor
v. State , 157 S.E.2d 431 (Ga. 1967), vacated in part by
Manor v. Georgia , 408 U.S. 935 (1972), undermines his
argument as it demonstrates when fingerprint cards can, in fact, be
prejudicial. In Manor , the fingerprint card included
three aliases, the defendant's FBI number, and listed charges of rape
and possession of whiskey. Id. at 436. Similar facts are not
present here. Morrow's fingerprint cards did not mention any crimes. The
trial court did not abuse its discretion. Point denied.
VIII. Hearsay Testimony of Officer Campbell
Statement of Mario Page
Morrow contends that impermissible
hearsay, implicating Morrow in the Abercrombie murder, was admitted into
evidence. Officer Campbell testified that he told Morrow that "Mario
Page had implicated him in the shooting of Roamel Abercrombie." Morow
contends that Page's statement was hearsay and its admission was
Morrow has admitted to murdering
Abercrombie and has stood by his confession. Morrow could not have been
prejudiced by Campbell's testimony that Page implicated Morrow in that
murder. See Cruz v. New York , 481 U.S. 186, 192
(1987). We find neither prejudice nor an abuse of discretion in the
admission of this evidence. Point denied.
Morrow contends that Officer
Campbell's testimony regarding Dante Charles and Yn Ye Kuo's reactions
at a police lineup was inadmissible hearsay. Campbell testified that
Charles (who witnessed the Abercrombie shooting) "began to cry and shake"
when Morrow stepped forward at the lineup. Similarly, Campbell testified
that Kuo backed away from the window, became weak kneed, and appeared to
be fainting when she observed Morrow. (FN6) Neither Charles nor Yn Ye
Kuo made an identification of Morrow. Morrow argues that the state's use
of these reactions as evidence of identifications constituted hearsay
and was prejudicial because it portrayed him "as so evil and dangerous
that he inspired spontaneous reactions of fear in people."
This testimony does not fall under the
commonly understood definition of hearsay - an out of court statement
offered to prove the truth of the matter asserted. Neither Charles
or Kuo made a statement or assertion, they instead displayed physical
reactions upon observing Morrow. The question of whether non-assertive
conduct qualifies as hearsay has been discussed by evidence scholars for
years. See 5 Wigmore, Evidence 1362, n.1 (Chadbourn rev.
1974). (FN7) We need not enter this debate because even assuming that
the testimony was improper hearsay, (FN8) it could not prejudice Morrow.
To the extent the testimony implicated
Morrow in the Abercrombie murder and the Kuo robbery, Morrow already
confessed to those crimes. See Cruz , 481 U.S. at
192. To the extent that the testimony might have implied a fearful
reaction, the crimes themselves would naturally inspire fear in anyone
witnessing them. There was no prejudice to Morrow in the admission of
the evidence. Point denied.
Morrow claims that the testimony was
irrelevant. This argument is unpreserved as it was not raised in his
motion for new trial. Because we find no manifest injustice or
miscarriage of justice, we do not review for plain error. See
IX. Testimony of Ms. Browning
Morrow challenges the admission of Ms.
Browning's testimony. Ms. Browning testified that she was at the YMCA
parking lot and witnessed much of the exchange between Morrow and Mr.
Koprowski. After parking close to Mr. Koprowski and realizing something
was wrong, Browning said she got back in her car and drove around the
building - hoping to frighten away Morrow. Browning returned and got out
of her car and, eventually, witnessed Morrow shoot Koprowski.
Browning testified that, after the shooting, she hid
behind her car because she was afraid of being shot. She also testified
that she felt guilty for driving around the building, because she felt
that another course of action may have saved Koprowski's life. In fact,
Browning felt so guilty that in her initial police report she did not
mention driving around the building.
Morrow contends that Browning's testimony regarding
her fear of being shot and her guilt over not doing more were irrelevant.
As in the preceding point, Morrow argues that the evidence was
prejudicial because it portrayed him as evil and inspiring fear in
Morrow's arguments are without merit. Browning's
testimony as to her fear of being shot was relevant to show why she was
behind her car. Further, Browning's feelings of guilt and remorse were
relevant to explain why she failed to tell the police that she drove
around the building. See State v. Spinks , 629 S.W.2d
499, 502-503 (Mo.App. 1981). Moreover, Morrow was not prejudiced by this
testimony because it merely points out the obvious - that someone who
just witnessed a murder would fear for their life.
We find neither abuse of discretion nor prejudice in
the admission of Browning's testimony. Point denied.
X. Batson Challenges
Morrow alleges the trial court erred
by overruling two of his three Batson challenges. See
Batson v. Kentucky , 476 U.S. 79 (1986). The
challenges concerned the state's use of peremptory strikes on two black
We defer to the trial court in these matters, and
will overturn its decision only upon a showing of clear error.
State v. Smith , 944 S.W.2d 901, 912 (Mo. banc 1997), cert.
denied, 118 S.Ct. 377 (1997). The trial court commits clear error
when "'although there is evidence to support it, the reviewing court on
the entire evidence is left with a definite and firm conviction that a
mistake has been committed.'" Id . ( citing State v.
Antwine , 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied,
486 U.S. 1017 (1988)). Further, "the justification for a peremptory
strike need not rise to the level of justification for a challenge for
cause." Smith , 944 S.W.2d at 913 ( citing
Batson , 476 U.S. at 97). When faced with a Batson
challenge, the state must present a "reasonably specific and clear
race neutral explanation for the strike." State v. Parker
, 836 S.W.2d 930, 939 (Mo. banc 1992), cert. denied, 506 U.S.
1014 (1993). If the state does this, then it is the defendant's burden
to show that the state's reasons were pre-textual and that the strikes
were racially motivated. Id.
Ms. Essie Gordon
The state maintains they struck Ms.
Gordon because she appeared troubled with the death penalty and stated
that she would first have to know defendant's motive before she could
consider it. The relevant questioning follows:
Q: Will you be able to listen to the evidence and
consider the death penalty in this case?
A: Yes, I can.
Q: Okay. When you say - -
A: The death penalty or life imprisonment.
Q: You would able to consider both?
A: I don't know , I'm thinking more or less I have to listen to
it to see what really happened
Q: Right. . . . do you have some personal feelings about the death
Q: Okay. Either way?
Q: It's something you could consider?
The state maintains that during questioning "she
looked very troubled" and would not look up when the topic of the death
penalty arose. While acknowledging that Ms. Gordon did say she could
consider it, the prosecutor believed her to be hesitant and reluctant.
The trial judge allowed the strike stating "my memory is the same as [the
prosecutor's] that the lady equivocated a great deal, asking questions
in response to questions."
Ms. Gordon's hesitation and body language during
questioning was a legitimate basis for using a peremptory strike. "[E]ven
if the prosecutor's perception of the venireperson is based on past
experience, 'hunches,' or 'horse sense,' the perception can survive
Batson if it is based on a racially-neutral factor." Smith
, 944 S.W.2d at 912 . Further, because of the "subjective nature of
peremptory challenges" we place great reliance in the trial court's
judgment when it comes to assessing the legitimacy of the state's
explanation. Antwine , 743 S.W.2d at 65.
Ms. Celestine Irving
The state's primary concern with Ms.
Irving was that her husband was a juvenile officer in St. Louis, a
position he had held for twelve years. The prosecutor explained that Ms.
Irving might have "inside information, because she's lived with her
spouse, regarding juveniles and possibly [be] sympathetic to them
because of a broken home, which I imagine the defense intends to bring
into this case." The prosecutor further noted that Ms. Irving wore a
button that said "kids are special" and that it was possible that Ms.
Irving's husband had actually come into contact with the defendant. (Morrow
lived in St. Louis his entire life and had been convicted of crimes as a
The experience of Ms. Irving's husband
as a juvenile officer was a proper factor upon which the prosecutor
could base a "hunch" that she might be overly sympathetic to Morrow.
See State v. Harris , 842 S.W.2d 953, 954-55 (Mo. App.
1992). As to both Ms. Gordon and Ms. Irving, we note that Morrow failed
to present any evidence of similarly situated non-blacks who were not
struck. Although not determinative, this factor is relevant in
determining whether the state's reasons for striking both Irving and
Gordon were pretextual. See Smith , 944 S.W.2d at
The trial court did not clearly error in overruling
Morrow's Batson challenges regarding Ms. Gordon or Ms.
Irving. Point denied.
XI. Evidence Regarding Roamel Abercrombie
Testimony of Ms. Abercrombie
Morrow contends that the trial court
abused its discretion when it allowed Roamel Abercrombie's mother to
testify to the circumstances surrounding her son's murder. Ms.
Abercromibie testified that just prior to the murder she gave her son a
dollar so that he could walk to the store to buy some orange juice. She
also testified that after her son was shot she was at his side almost
immediately and that he did not have either a gun or drugs on him. She
insisted that her son never sold or used drugs.
The court permitted the testimony of
Ms. Abercrombie to rebut Morrow's characterization of Abercrombie's
murder as a drug deal "gone sour." The court, however, expressly
prohibited the state from using Ms. Abercrombie as a victim impact
witness. Nonetheless, Morrow argues that her testimony was impermissible
victim impact testimony.
"The trial court has discretion during the penalty
phase of trial to admit whatever evidence it deems helpful to the jury
in assessing punishment, including evidence regarding the character of
the defendant. The importance of the death penalty decision entitles the
sentencer to any evidence that may assist it in making that decision."
State v. Kreutzer, 928 S.W.2d 854, 874 (Mo. banc 1996),
cert. denied, 117 S.Ct. 752 (1997). (citations omitted). There is no
question that the Abercrombie murder was evidence of Morrow's character.
The fact that Morrow slandered Abrercrombie by saying that he murdered
him while in the middle of a drug deal was also evidence of Morrow's
character. It is within the trial court's discretion to determine that
evidence of the circumstances surrounding the murder could have been "helpful
to the jury in assessing punishment." Id . at 874.
Ms. Abercrombie did not testify as a victim impact
witness. Her testimony focused solely on what happened the day of the
murder and whether her son was a drug dealer. She did not testify as to
the impact her son's death has had on her life, nor did she testify to
the character of her son, other than to say he did not deal drugs. The
trial court did not abuse its discretion in allowing this testimony.
Admissibility of Photograph
Morrow also contends the trial court
abused its discretion by admitting a photograph of Roamel Abercrombie.
Though Abercrombie was 18 when he died, the picture shows him at age 15.
Morrow insists that the photo was irrelevant and that it was
impermissible victim impact evidence. In addition, Morrow argues that "the
prejudice was exacerbated by the prosecutor's frequent. . . references
to Abercrombie as a little boy."
The trial court is vested with broad discretion in
the admission of photographic evidence. State v. LaRette ,
648 S.W.2d 96, 105 (Mo. banc 1983), cert. denied, 464 U.S. 908
(1983). A photograph is generally admissible to provide the identity of
the victim. State v. Davis , 653 S.W.2d 167, 175 (Mo. banc
1983). While Roamel Abercrombie was not the victim of the charged murder
in this case, the circumstances surrounding the Abercrombie murder were
proper evidence of Morrow's character. The trial court did not abuse its
discretion by allowing the photo strictly for the purpose of identifying
Abercrombie. Further, the discrepancy in the age of Abercrombie between
the time of the photograph and the time of the murder was not so great
as to render the trial court's decision an abuse of discretion. Point
Morrow also argues that the state's references to
Roamel as a "little boy" were prejudicial. Morrow contends that
Abercrombie was eighteen years old, six feet tall, and two hundred
pounds when he murdered him. This objection is unpreserved as Morrow
failed to raise it in his motion for new trial. Moreover, the jury was
aware of Abercrombie's size and age. The doctor who performed the
autopsy testified to the jury about the precise height and weight of
Abercrombie, while his mother told the jury that he was 18 when he died.
Because we find no manifest injustice or miscarriage of justice, we do
not review for plain error. See Rule 30.20.
XII. Victim Impact Testimony
Morrow argues Missouri's victim impact
statute, sec. 565.030.4. RSMo 1994, is unconstitutional on its face. We
upheld the constitutionality of this statute and rejected a claim that
it was over broad in State v. Roberts , 948 S.W.2d 577,
604 (Mo. banc 1997), cert. denied, 118 S.Ct. 711 (1998). Point
Morrow also argues that the victim impact testimony
of John Koprowski's wife, Pamela Koprowski, was rhetorical, emotionally
inflammatory and, therefore, inadmissible. Morrow complains specifically
of the following testimony:
You know the bullet that murdered John murdered
me, too. It murdered his mother, it murdered part of his sisters and
brothers, it murdered part of his children. The bullet flies far.
And you don't recover. It's like something that just goes into your
body and rips the very essence of that you and your spouse was, and
just tears it right out of your body. It's your soul and your spirit;
it's gone and you're empty, you're absolutely empty. You've died,
too. You've absolutely died, too.
Morrow failed to raise this objection at trial.
Because we find no manifest injustice or miscarriage of justice, we do
not review for plain error. See Rule 30.20. Point denied.
XIII. Admissibility of Presentence Report
Morrow challenges the trial court's
admission into evidence of a presentence report. The state read portions
of this report during its cross examination of Dr. Cuneo, a defense
witness who testified about Morrow's drug dependency. The document
contained reports from Morrow's probation and parole officers indicating
that he has been unable to conform to the law since the age of thirteen.
Morrow argues that this report was inadmissible
because: the report was hearsay, the state failed to show that Dr. Cuneo
had seen or relied upon it, it constituted incompetent opinion evidence,
and the state failed to give notice of the report. Although he now
raises this panoply of challenges to the report, the only objection
Morrow raised at trial regarded the state's alleged failure to lay a
foundation showing that Dr. Cuneo had seen or relied upon the report.
The following questioning transpired, between Dr.
Cuneo and the prosecutor, after the trial court told the state to lay a
foundation showing that Dr. Cuneo had seen the presentence report.
Q: You indicated you had received some records
from the Public Defender's Office; is that correct?
Q: And there were some records that you indicated you got from the
prison; is that correct also?
Q: But those particular records you did not base any opinion on; is
that correct? Or formulate your diagnosis from those prison records;
is that correct?
A: I told you at that time the diagnosis of drug abuse had nothing
to do with those records. I also told you I reviewed those records
because if -- in fact I wanted to know if he was in any type of
Q: Now, this Missouri Department of -- Board of
Probation and Parole report, that was contained within those records
that you received [but] didn't make your decision on or base your
opinion; is that correct?
- - - - - - -
Q: The only time he's been able to remain trouble free since he was
thirteen is when he has been confined. You read that when you
reviewed the reports?
Q: Wasn't that important in your determination whether or not
cocaine had any affect on his ability to commit the crimes that he
did in April of 1994? Wasn't that important that since he hasn't
been able to conform his conduct to the law in the State of
A: Very much so. Would you like to know why?
- - - - - - - - -
Q: And, Doctor, wasn't it also important - - you took your history
from the defendant; isn't that correct?
A: Not entirely.
Q: Okay. But part of it was from the defendant himself, is that
A: Right. And I checked out the facts with the mom, and then later
cross referenced them with school records, and then later cross
referenced them with the Department of Correction records. That's
why I review records, to cross reference.
The record demonstrates that Dr. Cuneo
not only had seen the report, but relied upon it for certain factual
information. The trial court did not err in overruling Morrow's
foundation objections. As to any unpreserved arguments of error, we find
no manifest injustice or miscarriage of justice, so we do not review for
plain error. See Rule 30.20. Point denied.
XIV. Statutory Aggravating Circumstances
Morrow challenges the trial court's
submission of the five statutory aggravators arguing that they were
duplicative in that four of the five aggravators involved the robbery of
Koprowski. Morrow complains that "when one aggravator has been
multiplied into four, it was probably given undue weight." We rejected
this argument in State v. Clemmons , 946 S.W.2d 206, 232 (Mo.
banc 1997), cert. denied, 488 U.S. 948 (1988). Point denied.
Morrow raises several additional challenges to the
court's finding of four statutory aggravating circumstances. However, we
need only find that one statutory aggravating factor exists to affirm a
sentence of death. (FN9) Smith , 944 S.W.2d at 921;
State v. Weaver , 912 S.W.2d 499, 522 (Mo. banc 1995), cert.
denied, 117 S.Ct. 153 (1996); State v. Sloan , 756 S.W.2d
503, 509 (Mo. banc 1988), cert. denied, 489 U.S. 1040 (1989). We
review the trial court's findings to determine if the evidence supports
- beyond a reasonable doubt - the existence of an aggravating
circumstance. State v. Brown , 902 S.W.2d 278, 294 (Mo.
banc 1995). We have looked at the record and find overwhelming and
uncontested evidence showing that, beyond a reasonable doubt, Morrow was
engaged in the perpetration of a robbery when he murdered John Koprowski.
See Section 565.035.3(2). Therefore, we need not address
additional issues raised by Morrow regarding the other statutory
aggravating circumstances. See Weaver , 912 S.W.2d
XV. Constitutionality of Statutory Scheme
Morrow also challenges the
constitutionality of Missouri's death penalty statute. Morrow
specifically alleges that the scheme is unconstitutional because it
prevents consideration of relevant mitigating evidence. We rejected this
argument in State v. Ramsey , 864 S.W.2d 320, 337 (Mo.
banc 1993), cert. denied, 511 U.S. 1078 (1994). Point denied.
XVI. Penalty Phase Closing Arguments
Morrow asserts the trial court erred
by overruling his objections to various remarks made in the state's
penalty phase closing argument. We note that the "parties have wide
latitude in arguing during the death penalty phase of a first degree
murder case." State v. Richardson , 923 S.W.2d 301, 322 (Mo.
banc 1996), cert. denied, 117 S.Ct. 403 (1996). We first address
those objections properly preserved.
Morrow argues that the trial court
erred by overruling his objection that there was no evidence to support
the prosecutor's statement that John Koprowski's mother loved him. This
argument is without merit. It is reasonable to infer that a mother loves
her son. Moreover, Koprowski's wife testified as to the terrible impact
that Koprowski's death had on his mother. The trial court did not abuse
its discretion. Point denied.
Morrow's next argument centers around the following remarks:
When he does his next murder, Mr. Koprowski, this
is when he really gets scared because he knows there's no such thing
as a free murder, ladies and gentlemen. And sentencing him to life
without parole for the death of this man completely ignores this
Defense: Objection, improper argument.
Morrow contends that this argument was impermissible
because the jury had no authority over sentencing in the Abercrombie
case. We find, instead, that "the prosecutor was merely expressing his
opinion fairly drawn from the evidence before the jury that the death
penalty was appropriate." State v. Mease , 842 S.W.2d 98,
109 (Mo. banc 1992), cert. denied , 508 U.S. 918 (1993). The
evidence was undisputed that Morrow murdered Abercrombie. It was proper
for the prosecutor to develop a theory as to why this fact made the
death penalty appropriate in this case. The trial court did not abuse
its discretion. Point denied.
Morrow also objects to the state commenting "that
justice demands the death penalty in this particular case , to do
anything else cheapens the value of human life."
Morrow alleges that this argument violates
State v. Storey , 901 S.W.2d 886, 902 (Mo. banc 1995). However,
the argument in Storey was different. It misstated the law
and potentially misled the jury into believing that the only inquiry
required was whether the value of the victim's life exceeded the value
of the defendant's life and erroneously grouped all persons guilty of
murder into one category. The argument here did not misstate the law.
See State v. Kenley , 952 S.W.2d 250, 270 (Mo. 1997),
cert. denied , 118 S.Ct. 892 (1998). Nor did it group all persons
guilty of murder into one category. Instead, it focused on the facts of
this case warranting the death penalty and argued that justice demanded
the death penalty in this case based on these facts. See
Mease , 842 S.W.2d at 109.
The trial court did not abuse its discretion. Point
We are hesitant to exercise our plain
error review of closing arguments. "Appellate review of assertions of
plain error in a prosecution's closing argument pressures trial courts
into the situation of 'uninvited interference with summation and a
corresponding increase in the risk of error by such intervention.'"
State v. Wise , 879 S.W.2d 494, 516 (Mo. banc 1994), cert.
denied , 513 U.S. 1093 (1995) ( quoting State v.
Clemmons , 753 S.W.2d 901, 907-08 (Mo. banc 1988), cert.
denied , 488 U.S. 948 (1988)).
Morrow's complains of the following remarks:
But you have to keep in mind,
because you heard evidence today, ladies and gentlemen, that he had
just gotten out of jail January of '94, this is April of '94.
And look at his history, ladies and gentlemen.
You can take those back to the jury room to look at them. What do
you think is going through his mind? He knows where he's going to go
if he gets caught because he's been there, he's been there and done
Keep that in mind, ladies and gentlemen. That's also a statutory
aggravating circumstance you can consider in this case, that he knew
that he couldn't get caught --
Defense: Objection, misstates the law ,
Morrow now contends that these
statements were not supported by the evidence. However, this objection
was not preserved, as it was never raised at trial.
Morrow also complains that the
prosecutor told the jury to read the presentence investigation report
and "find out what kind of guy [Morrow] really is." Morrow argues that
the report was impermissible hearsay. Morrow, however, did not make a
hearsay objection at trial.
Morrow also challenges the following remarks:
Now, I don't know what else you need to make this
decision. It's a tough decision but society has to make tough
decisions, presidents have to make tough decisions, legislators have
to make tough decisions; everybody has to make tough decisions and
you're going to have to make it for our community, ladies and
gentlemen. Like I indicated to you-
Defense: Objection, improper evidence .
Morrow contends that these remarks are inflammatory
and unsupported by the evidence. These objections are not preserved for
review because Morrow's objection of "improper evidence" is not specific
enough to raise them. Objections must be specific to be preserved for
appellate review. State v. Driver , 912 S.W.2d 52, 54 (Mo.
Because we find no manifest injustice or miscarriage
of justice arising from the state's closing arguments, we do not review
for plain error. See Rule 30.20. Point denied.
XVII. Proportionality Review
Section 565.035 requires us to
independently review the sentence of death to determine: whether it was
imposed under the influence of passion or prejudice, or any other
arbitrary factor; whether there was sufficient evidence to support the
finding of the aggravating circumstances; and whether the sentence was
excessive or disproportionate to the penalty imposed in similar cases.
There is no evidence that the judge imposed the
sentence of death under the influence of passion, prejudice, or any
other arbitrary factor.
We have already found overwhelming evidence to
support a finding that Morrow murdered Koprowski during the commission
of a robbery. (FN10) We have reviewed the record and also find
sufficient evidence to support all four statutory aggravating
circumstances found by the trial court.
The evidence, beyond a reasonable doubt, shows: that
Morrow was previously convicted of the class C felony of assault in the
second degree; that Morrow killed Koprowski so that he could steal his
new jeep; and, that Morrow approached John Koprowski, a complete
stranger to Morrow and his accomplice, and murdered him to steal his
jeep and obtain funds to support his drug habit. See section
565.032.2(1); section 565.032(4); section 565.032(7), RSMo 1994.
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." See section
565.035.3(3), RSMo 1994.
We have found a sentence of death
appropriate when the crime to be considered is a murder committed during
the course of a robbery. See State v. Ramsey , 864
S.W.2d 320 (Mo. banc 1993); State v. Kilgore , 771 S.W.2d
57 (Mo. banc 1989), cert. denied , 493 U.S. 874 (1989);
State v. Wise , 879 S.W.2d 494 (Mo. banc 1994), cert. denied,
513 U.S. 1093 (1995); State v. Skillicorn , 944 S.W.2d
877 (Mo. banc 1997), cert. denied, 118 S.Ct. 568 (1997). Morrow,
however, asserts that Koprowski's resistance distinguishes his crime
from other death penalty cases where a robbery ended in murder.
When Morrow shot Mr. Koprowski, there was no
resistance. Instead, Koprowski was on the ground with Morrow standing
above him, yelling "get up you son of a bitch." Koprowski did not get
up, however, until after Morrow shot him in the face and was driving
away in Mr. Koprowski's car. The fact that Morrow became irritated with
his victim for having initially resisted does not distinguish the
culpability of his actions from other murders committed during the
course of a robbery.
Moreover, any small mitigating effect Morrow might
enjoy from Koprowski's initial resistance is overshadowed by our
consideration of "the defendant." Morrow has admitted to killing an
eighteen year old just hours before he shot Koprowski. Further, Morrow
showed no signs of remorse after the murder. Instead, Morrow used the
fruits of his murder, Koprowski's jeep, to continue his crime spree.
Shortly after leaving Koporowski staggering in the parking lot, Morrow
robbed Sandra Merriman. See State v. Kenley , 952
S.W.2d 250, 270 (Mo. banc 1997).
Finally, the evidence against Morrow is overwhelming
and uncontested, as Morrow confessed to murdering Koprowski.
Morrow's sentence is neither excessive nor
The judgment is affirmed.
FN1. In the city of St. Louis, Morrow pled
guilty to first degree murder and armed criminal action for the murder
of Roamel Abercrombie. He was sentenced to life without parole on the
murder charge and life for armed criminal action. On the day he pled
guilty to these charges, the City of St. Louis dismissed the charges
regarding the Timm and Merriman robberies.
FN2. The admissibility of evidence regarding
the theft of Pinchay's car need not be discussed as it was Mario Page,
not Morrow, who stole Pinchay's car. The record shows that Morrow was at
Gooch's when this crime occurred. Morrow was not prejudiced by this
FN3. What we said in Roberts is
applicable here: "Because of what the jury could see so clearly from the
physical evidence, [defendant] decided to defend himself on the one
issue the jurors could not see - his mental state at the time of the
murder." Roberts , 948 S.W.2d at 586.
FN4. Specific evidence that Morrow was capable
of deciding that the opportunity was not right to commit a particular
crime included his decision not to steal Brad Rosenthal's wife's car
after realizing that Rosenthal was watching him and his decision not to
steal a truck from a Mobil service after the owner returned to the truck.
FN5. Morrow conceded the common scheme or plan
theory for the purposes of this instruction.
FN6. Campbell, of course, was available for
cross examination as to the accuracy of his observations.
briefly summarize, the debate centers around the question of whether the
trustworthiness that is inherent in conduct that was not intended to be
an assertion outweighs the interest in putting testimony under the
scrutiny of cross examination.
FN8. This testimony may fall into the excited
utterances hearsay exception. See State v. Meyer ,
694 S.W.2d 853, 856, n.2 (Mo.App. 1985) ("To qualify under this
exception, the utterance first must have been made as a spontaneous
reaction to a startling occurrence or event. Second, the event must have
been sufficiently startling to render inoperative the normal reflective
thought process of an observer." citing McCormick Evidence
, Sec. 297 (3d ed. 1984)).
FN9. We also address whether there was
sufficient evidence to support all four statutory aggravators, pursuant
to Section 565.035.3(2) RSMo 1994, at point XVIII., infra. Here, however,
we address only those issues raised by Morrow.
FN10. See supra, point XIV.