Missouri, Respondent v. Michael Taylor, Appellant
In 1998, Appellant was convicted of
first-degree murder and forcible rape and was sentenced to life in
prison without probation or parole. Appellant was incarcerated at Potosi
Correctional Center and was required to share a cell with Shackrein
At approximately 7:30 p.m. on October 3, 1999, Appellant placed Mr.
Thomas in a chokehold and strangled him to death. Just prior to the
routine ten p.m. inmate "count," Appellant summoned the guards to his
cell where they discovered Mr. Thomas' body.
Mr. Thomas' body was found on the cell floor with a bite mark in the
middle of his back. His right eye had been nearly dislodged from the eye
socket. There were abrasions present to his abdomen and left cheek, and
his left eye was swollen.
There was also evidence that the two men had engaged in sexual
activity at some time prior to the murder. Appellant stated to a
department of corrections investigator that his "father" from the "dark
side" had instructed him to "send" Mr. Thomas to him.
At trial, Appellant's defense was that he suffered from a mental
disease or defect that excused him from responsibility for killing Mr.
Thomas. The jury rejected his insanity defense, found Appellant guilty
of first degree murder, and after the sentencing phase of the trial
unanimously recommended a sentence of death.
When he committed the murder that resulted in his death sentence,
Michael A. Taylor, who had been convicted of first-degree murder and
forcible rape in 1998, was serving a life sentence without probation or
parole based on his 1995 killing of Christine Smetzer, a fifteen-year
old high school freshman.
Taylor was 6 weeks from his 16th birthday when he
brutally beat and raped Christine in a bathroom at McCluer North High
School (St. Louis County) and then asphyxiated her by forcing her neck
against a toilet with her face in the flushing water.
After school on January 24, 1995, a female student
ran to two teachers and told them she had found an injured girl in a
restroom. They investigated and found Christine laying on her right side
in the farthest stall, her head hidden behind the toilet.
Taylor had a juvenile record and was a special
education student who had been diagnosed with behavior disorders two
years prior to the attack. He was initially supervised in the most
controlled environment for behavior-disordered students but, as a result
of the policy known as "full inclusion," was transferred after only a
few months to a regular school, where he spent only half of his day in
special classes. Less than two years after beginning Special School
District services, he was given a schedule with all regular classes.
He murdered Christine one day after he was
transferred to McCluer North, with no paper trail to indicate his past
problems. Because he was only 15 at the time of the rape and murder,
Taylor was not eligible for the death penalty but was sentenced to life
without the possibility of parole.
In reaction to the killing, the Missouri legislature
passed the Safe Schools Act in 1995, which requires that students'
violent behavior records follow them from school to school. Before being
put in the same cell with Thomas, Taylor had been in “the hole” for
refusing to take a cell mate (“cellee”).
To get out of the hole, Taylor agreed to take a cell
mate, and he and Shackrein Thomas were assigned to a cell together.
Thomas was 20 and was a medium security, non-violent inmate serving
five- and eight-year concurrent sentences in Potosi for stealing a cell
phone and forgery of a check for $107.14. Taylor and Thomas got along
well. Taylor even gave his medication to Thomas, who would ingest it.
At approximately 7:30 p.m. on October 3, 1999, only
their ninth day in the same cell together, Taylor was reading a book
(“Pillars of the Earth”) when he put it down and got off his bunk.
Taylor put his shoes on for stability and then struck Thomas in the
face, who in turn began swinging his arms at Taylor. Taylor then got
behind Thomas and used a choke hold to strangle him. Taylor strangled
Thomas for “ten to twenty” minutes until he finally died.
Because Thomas’s body was in front of the toilet,
Taylor kicked it out of the way so he could urinate. Taylor would
reapply pressure to Thomas’s neck after noticing that he was still
moving and alive. Taylor also put a pillow under Thomas’s head while his
body was still on the floor. Taylor then resumed reading his book.
At approximately 8:30 p.m., a prison nurse came to
Taylor’s cell and gave Taylor his anti-depressant medication, Trazadone,
which he actually took for the first time since he had been in the same
cell with Thomas. Before the ten o’clock count had been completed,
Taylor pushed the emergency button in his cell to call correctional
officers to his cell.
Taylor later said that he did this so that Thomas’s
body could be removed because it was in his way. The officers arrived
and asked Taylor what was wrong, but he did not answer. One officer
opened the “chuck hole” in the cell door and told Taylor to “cuff up,”
meaning that Taylor should turn around and put his hands through the
opening so that restraints could be applied. At this point the officers
could see Thomas’s body lying in the cell. Taylor told the officers that
his “father” made him do it.
After several requests to “cuff up,” Taylor finally
complied and was taken out of the cell. The officers found Thomas’s
lifeless body on the cell floor. The body had a bite mark in the middle
of the back and one of Thomas’s eyeballs was nearly out of the socket. A
white creamy substance was present between Thomas’s buttocks. Although
an attempt was made to test the substance, not enough DNA material was
present to conduct a valid test. But later testing revealed the presence
of Taylor’s DNA on the backside of Thomas’s boxer shorts.
Thomas’s cause of death was asphyxiation caused by
neck compression. He also suffered from a swollen left eye, caused by a
blunt impact, and abrasions to the abdomen and left cheek. A toxicology
report showed that Thomas’s blood contained Trazadone.
Later that night (actually in the early morning hours
of October 4, 1999) and again on October 5, 1999, Taylor freely admitted
to a Department of Corrections investigator that he had strangled Thomas
to death. Taylor said that his “father” from the “dark side” told Taylor
to “send” Thomas to him. Taylor denied that this voice commanded him to
kill Thomas, but he knew what sending Thomas to his “father” meant that
he had to do. During his confession on October 5, 1999, Taylor even
demonstrated the choke hold with which he used to strangle Thomas.
Supreme Court of Missouri
Case Style: State of Missouri, Respondent v. Michael
Circuit Court of St. Charles County, Hon. Lucy D. Rauch
Appellant: Rosemary E. Percival
Respondent: Evan J. Buchheim
Michael Taylor was convicted of first-degree murder
and forcible rape in 1998 and was sentenced to life in prison without
probation or parole. He was incarcerated at Potosi Correctional Center
in a cell with Shackrein Thomas. In October 1999, Taylor summoned guards
to his cell, where they found Thomas' body. Thomas had been strangled to
death, and there was some evidence that the two men had engaged in
sexual activity before the murder. Taylor told a department of
corrections investigator that his "father" from the "dark side" had
instructed him to "send" Thomas to him. At trial, Taylor argued he
suffered from a mental disease or defect that excused him from
responsibility for killing Thomas. The jury rejected his insanity
defense, found Taylor guilty of first-degree murder and unanimously
recommended a death sentence. Taylor appeals.
Court en banc holds:
(1) Taylor failed to demonstrate he was prejudiced
when the court gave the jury a required pattern instruction not to
consider statements doctors said they received while interviewing Taylor
in determining whether Taylor was guilty of the crime with which he was
charged. The instruction properly informed the jury it only could use
such evidence to determine Taylor's mental state and not his guilt or
(2) The court did not abuse its discretion in
permitting the prosecutor to cross-examine a psychological expert Taylor
called in his defense regarding the details of Taylor's previous
conviction. The cross-examination only challenged the expert's opinion
regarding Taylor's motive for the killings and concerned similarities
between the two murders and the circumstances that implied that sex
might have motivated both crimes.
(3) The court did not abuse its discretion in denying
Taylor's request for the mental health records of a witness testifying
for the prosecution. There is a presumption that a witness is competent
to testify unless the witness exhibits some mental infirmity and fails
to meet traditional criteria for witness competence. Here, Taylor
presented nothing but a mere possibility that the witness might not have
been competent to testify.
(4) Taylor failed to demonstrate he was prejudiced by
three speaking objections the prosecutor made during Taylor's counsel's
penalty-phase closing argument. The objections were legitimate and did
not amount to an inappropriate argument.
(5) The court did not abuse its discretion under Rule
27.08 in not permitting the jurors to take notes during the trial. The
court's decision was not arbitrary, unreasonable, or clearly against the
logic of the circumstances.
(6) The court did not plainly err in not instructing
the jury that it could not impose the death penalty if it found Taylor
to be mentally retarded. Although the United States Supreme Court's
prohibition against executing the mentally retarded, decided in
Atkins v. Virginia, 536 U.S. 304 (2002), is to be applied
retroactively, Taylor failed to request or offer a jury instruction on
this issue. In addition, he has failed to demonstrate that the court
committed an instructional error that affected the jury's verdict. The
evidence he offered was insufficient to support an instruction on mental
retardation, and, based on the evidence in the record, no reasonable
juror could have found that Taylor was mentally retarded.
(7) The court did not abuse its discretion in
sustaining the prosecutor's motion to strike a particular potential
juror. This potential juror said she would not be able to vote for the
(8) The court did not plainly err in giving the
jurors certain instructions during the penalty phase. These instructions
properly were patterned after model approved instructions, which are
constitutional. A jury previously found Taylor guilty of murder, beyond
a reasonable doubt, in the previous crime, and Taylor offers no legal
authority for his proposition that the prosecutor must demonstrate that
the mitigating circumstances are insufficient to outweigh the
(9) The court had jurisdiction and authority to
sentence Taylor to death. Missouri's statutory scheme recognizes a
single offense of murder with the maximum sentence of death, and the
requirement that aggravating facts or circumstances be present to
warrant imposition of the death penalty does not increase the maximum
penalty for the offense.
(10) In its independent review of the death sentence,
there is no evidence to suggestthat the punishment imposed on Taylor was
a product of passion, prejudice or any other arbitrary factor. The
evidence supports, beyond a reasonable doubt, the statutory aggravating
factor. The death sentence imposed here is not excessive or
disproportionate to the penalty imposed in similar cases.
Opinion Author: Ronnie L. White, Chief Justice
Opinion Vote: AFFIRMED. All concur.
A jury convicted Appellant, Michael Taylor, of one
count of first-degree murder and recommended the death sentence.
Judgment was entered consistent with the jury's recommendation.
Appellant now appeals raising nine points of error. This Court has
jurisdiction pursuant to Mo. Const. art. V, sec. 3. Affirmed.
The facts, which this Court reviews in the light most
favorable to the verdict, are as follows:
In 1998, Appellant was convicted of first-degree
murder and forcible rape and was sentenced to life in prison without
probation or parole. Appellant was incarcerated at Potosi Correctional
Center and was required to share a cell with Shackrein Thomas. At
approximately 7:30 p.m. on October 3, 1999, Appellant placed Mr. Thomas
in a chokehold and strangled him to death. Just prior to the routine ten
p.m. inmate "count," Appellant summoned the guards to his cell where
they discovered Mr. Thomas' body.
Mr. Thomas' body was found on the cell floor with a
bite mark in the middle of his back. His right eye had been nearly
dislodged from the eye socket. There were abrasions present to his
abdomen and left cheek, and his left eye was swollen. There was also
evidence that the two men had engaged in sexual activity at some time
prior to the murder. Appellant stated to a department of corrections
investigator that his "father" from the "dark side" had instructed him
to "send" Mr. Thomas to him.
At trial, Appellant's defense was that he suffered
from a mental disease or defect that excused him from responsibility for
killing Mr. Thomas. Consequently, the guilt phase evidence primarily
consisted of expert testimony as to Appellant's mental status. The jury
rejected his insanity defense, found Appellant guilty of first degree
murder, and after the sentencing phase of the trial unanimously
recommended a sentence of death.
In Appellant's first point, he contends that the
trial court erred when overruling defense counsel's objection to giving
the jury Instruction No. 5, patterned after MAI-CR 3d 306.04. Appellant
believes this instruction may have caused the jurors to believe that
they could not consider whether he had a mental disease or defect.
Expert testimony concerning Appellant's mental status
was adduced from several experts. The conclusions of these experts were
based upon the direct examination of Appellant, as well as the review of
pertinent records, statements and the conclusions of other individuals.
Statements made by the accused and the information reviewed by these
experts is generally not admissible on the issue of whether the accused
actually committed the act charged; however, this information is
admissible on the issue of a defendant's mental condition. To be sure
the jury understands the purpose of this evidence, the trial court is
required to give the MAI-CR 3d 306.04 instruction.
The Missouri Approved Instruction CR 3d 306.04 states:
You will recall that certain doctors testified to
statements that they said were made to them and information that they
said has been received by them during or in connection with their
inquiry into the mental condition of the defendant. In that connection,
the Court instructs you that under no circumstances should you consider
that testimony as evidence that the defendant did or did not commit the
acts charged against him.
The failure of a trial court to give a required
instruction is error. The instruction clearly informs the jury that it
may only use the evidence identified to determine the defendant's mental
state and not his guilt or innocence. It does not instruct the jury to
disregard the evidence completely when determining the Appellant's
mental condition as he alleges. On a claim of instructional error, "[a]n
appellate court will reverse only if there is error in submitting an
instruction and prejudice to the defendant." Even assuming, arguendo,
that the trial court erred by not allowing Appellant to waive the
instruction, Appellant provides only speculation as to the prejudicial
effect of this proper instruction. Having failed to demonstrate
prejudice, Appellant's claim is without merit.
Appellant also argues that the trial court erred by
overruling his objection to the prosecutor's cross-examination of
Appellant's expert, Dr. John Rabun, concerning the details of
Appellant's previous conviction. Appellant contends that the testimony
elicited from the prosecutor's questioning was inadmissible evidence of
an uncharged crime that was neither logically relevant nor necessary to
prove the charge against him.
"Generally, evidence of prior bad acts or crimes is
inadmissible unless logically and legally relevant to the present charge."
However, Dr. Rabun had testified that he had reviewed the records of
Appellant's prior rape and murder when forming his opinion of
Appellant's mental state, and an expert witness may be cross-examined
about facts not in evidence to test the validity of his opinion. "Where
a psychological expert's opinion of mental illness is before the court,
the validity and weight of the opinion may be tested on cross-examination
concerning the expert's knowledge of fact surrounding the defendant's
mental status, including the accused's past interactions that bear on
the opinion. This necessarily implies wide latitude in cross-examining
such experts to test the factual basis for the opinion." Trial courts
retain broad discretion in deciding the permissible scope of cross-examination,
and an appellate court will not reverse a conviction absent an abuse of
Dr. Rabun testified that he believed the Appellant
suffered from paranoid schizophrenia and that Appellant had committed
both the previous and present murders after hearing voices. The
prosecutor's cross-examination, which did not exceed the scope of the
permitted examination as determined in a pre-trial conference,
challenged the expert's opinion in terms of attempting to establish a
motive for the killings. The prosecutor's questions concerned the
similarities between the murders in that both involved death by
asphyxiation and the circumstances in both implied that sex might have
been the motivating factor as opposed to a schizophrenic disorder.
Moreover, since Appellant had admitted his guilt, this evidence could
not have been used inappropriately to prove Appellant's propensity to
commit the crime charged. The trial court did not abuse its discretion
when permitting the cross-examination.
Appellant next claims that the trial court erred when
denying his motion to order two psychiatric care centers to disclose the
mental health records of the State's witness, Scott Perschbacher, so
they could be entered into evidence or else viewed in camera to
determine their relevancy. Appellant suggests that these records were
necessary to determine the competency of the State's witness and to deny
him access to those records violated his rights to due process,
confrontation, cross-examination and freedom from cruel and unusual
The abuse of discretion standard applies when
reviewing claims of denial of meaningful discovery and concerning the
relevancy and admissibility of evidence. "A trial court abuses its
discretion when its ruling is clearly against the logic of the
circumstances then before the court and is so arbitrary and unreasonable
as to shock the sense of justice and indicate a lack of careful
consideration." "If reasonable persons can differ as to the propriety of
the trial court's action, then it cannot be said that the trial court
abused its discretion."
When reviewing a claim that a defendant was denied
meaningful discovery, the appellate court will determine whether the
trial court abused its discretion in such a way as to result in
fundamental unfairness. "Fundamental unfairness occurs when the state's
failure to disclose results in defendant's genuine surprise and the
surprise prevents meaningful efforts to consider and prepare a strategy
for addressing the evidence." However, a "defendant is not entitled to
information on the mere possibility that it might be helpful, but must
make 'some plausible showing' how the information would have been
material and favorable."
Appellant asserts that the records in dispute
might have had a bearing on Mr. Perschbacher's competency to testify,
but there is a presumption that a witness is competent to testify unless
that witness exhibits some mental infirmity and fails to meet the
traditional criteria for witness competence. The mere possibility, not
supported by fact, that the records from these facilities might contain
evidence concerning Mr. Perschbacher's competence is insufficient to
have rendered the trial court's decision to deny discovery and admission
of these records as being an abuse of discretion.
In his fourth point, Appellant claims the trial court
erred by allowing the prosecutor to make speaking objections during
defense counsel's penalty phase closing argument. Appellant asserts that
these objections encouraged the jury to speculate about matters not in
the record, that they amounted to the prosecutor giving testimony, and
that they implied the defense had hidden facts from the jury.
At issue are three specific objections made by the
prosecutor. The first was an objection for a "blatant misstatement of
the evidence." The second occurred when defense counsel informed the
jury that if the Appellant were excused from guilt by reason of insanity
that he would be sent to Fulton State Hospital. The prosecutor objected
because this was material that defense counsel specifically insisted not
be in the jury instructions. The third objection was made when defense
counsel asked the jury to speculate as to why the appellant would be
prescribed medication for schizophrenia if he did not have mental
problems. The prosecutor objected stating "that calls for speculation
beyond the record. There may be very good reasons that are not in
Contrary to Appellant's claims, these are perfectly
legitimate objections that the trial court exercised its discretion over
to sustain. Appellant attempts to analogize this case to that of
State v. Green where the court of appeals determined that statements
made in the prosecutor's closing rebuttal argument intimated that
defense counsel lied or intentionally attempted to mislead the jury
without a basis in the record. Here, the situation is reversed because
the prosecutor's objections involve the defense's argument going beyond
the record or misstating the evidence.
"The trial court has broad discretion in controlling
the scope of closing argument and the court's rulings will be cause for
reversal only upon a showing of abuse of discretion resulting in
prejudice to the defendant. In order for a prosecutor's statements to
have such a decisive effect, there must be a reasonable probability that
the verdict would have been different had the error not been committed."
The prosecutor's objections did not amount to an inappropriate argument
that defense counsel lied or was attempting to mislead the jury.
Appellant fails to demonstrate any prejudice, beyond speculation,
resulting from these properly lodged objections.
Appellant claims that the trial court abused its
discretion by not allowing the jurors to take notes during the case.
Appellant requested that the jurors be allowed to take notes related to
the complex nature of the case and the fact that several expert
witnesses would be providing testimony. The prosecutor argued that he
believed note-taking would distract the jury and that they would not
listen as well to the evidence presented.
Rule 27.08 makes clear that allowing juror note-taking
lies purely within the discretion of the trial court. The trial court's
decision to not allow note-taking was not clearly against the logic of
the circumstances and was not so arbitrary and unreasonable as to shock
the sense of justice and indicate a lack of careful consideration.
In Appellant's sixth point, he claims that the trial
court plainly erred by not sua sponte instructing the jury that
it could not impose the death sentence if it found him to be mentally
retarded. Appellant bases his claim on this Court's decision in
Johnson v. State, which held that the United States Supreme Court
case of Atkins v. Virginia, rendering the death penalty
unsuitable for a mentally retarded criminal, must be applied
Prior to the holding in Atkins, the Missouri legislature passed
section 565.030 providing that a defendant convicted of first-degree
murder was ineligible for the death sentence if the jury found, by a
preponderance of the evidence, that the defendant was mentally retarded.
However, this statute expressly provided that it only applied to
offenses committed on or after August 28, 2001. Missouri's patterned
jury instruction, formulated in compliance with this statute, was
adopted on September 1, 2003, and while mandated for cases following
this date, the instruction excused courts of error for not using it
prior to its inception.
The murder of Mr. Thomas occurred on October 3, 1999.
However, Appellant contends that despite the fact that section 565.030
was limited to crimes committed after August 28, 2001, and despite the
fact that Missouri's patterned instruction was not applicable until
September 1, 2003, that the trial court was still required to instruct
the jury that a determination of mental retardation precluded a death
Even though section 565.030 is inapplicable and
Missouri's pattern instruction was not formulated at the time of
Appellant's trial, it is true that the Atkins decision is to be
applied retroactively. Appellant, however, failed to request or proffer
a jury instruction on this issue waiving all but plain error review. "To
establish that the instructional error rose to the level of plain error,
appellant must demonstrate that the trial court so misdirected or failed
to instruct the jury that it is evident that the instructional error
affected the jury's verdict."
The only evidence that Appellant presented regarding
mental retardation was videotaped testimony from Dr. Ahsan Syed, a
psychiatrist and department of corrections consultant. Dr. Syed
testified that he interviewed the Appellant on two occasions for a total
of forty-five minutes and that he performed a "quick review" of
Appellant's records. He further testified that Appellant functioned in
the borderline range of intellectual ability, but he had not performed
any intelligence or cognitive function tests of any kind. Appellant also
makes the conclusory statement that he has numerous poor adaptive skills
related to aggressive and disruptive behavior, his need for special
education at an early age, and the sexual abuse he claims to have
suffered at the hands of his schoolmates.
Missouri's statutory definition of mental retardation
does not include a numerical score for intelligence testing, but rather
defines it as:
[A] condition involving substantial limitations in
general functioning characterized by significantly subaverage
intellectual functioning with continual extensive related deficits and
limitations in two or more adaptive behaviors such as communication,
self-care, home living, social skills, community use, self-direction,
health and safety, functional academics, leisure and work, which
conditions are manifested and documented before eighteen years of age.
Dr. Richard Scott, the state's witness, testified
that he not only examined the Appellant when formulating his expert
opinion, but also administered intelligence testing. Dr. Scott found the
Appellant to be in the low average range of intelligence and reported no
evidence that revealed any deficit or limitation in Appellant's adaptive
Appellant's sparse evidence was insufficient to
support an instruction on mental retardation. Based upon the evidence in
the record, no reasonable juror could have found that Appellant was
mentally retarded, and the trial court did not plainly error by not
instructing the jury on this issue.
In his seventh point, Appellant claims that the trial
court abused its discretion when overruling his objection to strike
venireperson Janette Salmon for cause. The relevant standard of review
for the trial court's actions concerning striking a venireperson for
cause were discussed by this Court at length in State v. Smith.
In Smith, the Court stated:
Venirepersons may be excluded from the jury when their views would
prevent or substantially impair the performance of their duties as
jurors in accordance with the court's instructions and their oaths. A
challenge for cause will be sustained if it appears that the
venireperson cannot consider the entire range of punishment, apply the
proper burden of proof, or otherwise follow the court's instructions in
a first degree murder case.
The trial court is in the best position to evaluate a
venireperson's commitment to follow the law and is vested with broad
discretion in determining the qualifications of prospective jurors. The
trial court's "ruling on a challenge for cause will not be disturbed on
appeal unless it is clearly against the evidence and constitutes a clear
abuse of discretion. A juror's equivocation about his ability to follow
the law in a capital case together with an equivocal statement that he
could not sign a verdict of death can provide a basis for the trial
court to exclude the venireperson from the jury.
In response to the prosecutor's questions,
venireperson Salmon stated that after a great deal of thought she would
not be able to vote for the death penalty. She stated that the only time
she could consider such a penalty would be in the incident of "a mass
murderer or something like -- something like at the Towers." Ms. Salmon
further stated that the fact that Appellant committed a prior murder
would not change her mind. It was not required that she be questioned
further, as Appellant argues, to determine if she could still follow the
trial court's instructions and vote for the death penalty. The trial
court did not abuse its discretion when sustaining the prosecutor's
motion to strike.
Appellant next claims that the trial court plainly
erred when submitting penalty phase instructions numbers 16 and 17. He
contends that these instructions did not inform the jury that the State
bore the burden of proving aggravating circumstances beyond a reasonable
doubt and that mitigating circumstances were insufficient to outweigh
the evidence of aggravating circumstances. Appellant believes the
wording of the instructions could have allowed the jury to infer that
the burden of proof was not beyond a reasonable doubt. Having not raised
this issue at trial, review is under the plain error standard.
Instructions 16 and 17 were appropriately patterned
after MAI-CR 3d 313.40, 313.41, and 313.44. Instruction 16 specifically
includes the "beyond a reasonable doubt" standard in its language. The "beyond
a reasonable doubt" language is also present in instruction 15, the
preparatory instruction for requiring the findings of the aggravating
circumstances listed by the prosecution. The aggravating circumstance
the prosecutor listed in the jury instructions was Appellant's prior
first-degree murder conviction -- a conviction already dependent upon a
finding of guilt beyond a reasonable doubt. Moreover, Appellant offers
no case on point or statutory requirement that the prosecutor has the
burden to demonstrate that the mitigating circumstances must be
insufficient to outweigh aggravating circumstance.
To establish that the instructional error rose to the
level of plain error, appellant must demonstrate that the trial court so
misdirected or failed to instruct the jury that it is evident the
instructional error affected the jury's verdict. Appellant offers only
conclusory statements and speculation that the alleged error in
instruction would have influenced the jury's verdict. The MAI
instructions are constitutional, and there was no plain error in law
with their delivery to the jury.
Appellant finally argues that the trial court lacked
jurisdiction and authority to sentence Appellant because the state
failed to charge him with "aggravated first-degree murder." Appellant
claims that failure to plead facts, as listed in section 565.030.4,
creates a charge of murder whereby the maximum penalty was life in
With regard to the charging document, this Court has
addressed this claim numerous times before. The omission of statutory
aggravators from an indictment charging the defendant with first-degree
murder does not deprive the sentencing court of jurisdiction to impose
the death penalty. Missouri's statutory scheme recognizes a single
offense of murder with maximum sentence of death, and the requirement
that aggravating facts or circumstances be present to warrant imposition
of death penalty did not have the effect of increasing the maximum
penalty for the offense. Having examined this claim thoroughly and
finding no error of law, an extended opinion on these issues would have
no precedential value.
This Court independently reviews the proportionality
of all death sentences. Under section 565.035.3, RSMo 2000, this Court
is required to determine whether:
(1) 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) the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime, the
strength of the evidence, and the defendant.
Having thoroughly reviewed the record, this Court
concludes that there is no evidence to suggest that the punishment
imposed was a product of passion, prejudice, or any other arbitrary
The trial court's findings are next reviewed to
determine if the evidence supports, beyond a reasonable doubt, the
existence of an aggravating circumstance and any other circumstance
found. In this case, the jury unanimously found one statutory
aggravating circumstance as a basis for considering the death sentence.
The evidence supports, beyond a reasonable doubt, a finding that the
Appellant had a prior first-degree murder conviction on April 3, 1998.
Finally, this Court has upheld sentences of death in
similar cases where the defendant committed a prior murder and/or a
serious assualtive offense and then murdered again. The death sentence
in this case is neither excessive nor disproportionate to the penalty
imposed in similar cases, considering the crime, the strength of the
evidence, and the defendant.
The judgment is affirmed.