Case Summary for September 8-10, 1998

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Case Summary for September 8-10, 1998

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

TUESDAY, SEPTEMBER 8, 1998

80269
State of Missouri v. Christopher W. Gilyard
Jackson County
False imprisonment, forcible rape
One year, life

Chris Gilyard forced a teenage girl into his car, took her to his house, and forced her to have sex with him by biting and threatening to bite her. He was convicted of false imprisonment and sentenced to one year. He was convicted of forcible rape and sentenced to life in prison with eligibility for parole in fifteen years but with no final discharge from parole, as a sexual offender pursuant to section 558.026, RSMo Cum. Supp. 1996.

Gilyard contends that the predatory sexual offender statute is unconstitutional because it enhanced his punishment for criminal acts that he had not been convicted of--without protections of a jury determination on those acts. He also contends testimony that he sexually assaulted another girl should not have been admitted to show his intent to commit rape and kidnapping, and the prejudicial effect outweighed the probative value of the evidence.

The state argues Gilyard was found guilty and sentenced only for the charged crime of raping the teenager; the ability to consider Gilyard's previous acts, including ones not resulting in convictions, is consistent with the long established authority of a sentencing court. The state also argues the other victim's testimony was logically and legally relevant because it established Gilyard's "modus operandi" for committing rapes (such as biting, targeting teens) and corroborated the present victim's testimony.

80558
Jodie A. Letz, et al. v. Turbomeca Engine Corporation, et al.
Jackson County
Product liability

Sherry Letz was in a car accident. Although stable at one hospital, she was transferred to another hospital via helicopter. The helicopter crashed. Her mother (on behalf of herself, Sherry's estate, and Sherry's minor children) filed suit for wrongful death. She alleged the manufacturer knew of a dangerous defect in an engine part and failed to recall it to save money. The jury awarded $70 million compensatory and punitive damages.

The defendants contend: (1) Plaintiffs' counsel deceptively showed an irrelevant, non-probative photograph of Letz' tombstone to the jury as the occasion of her twenty-first birthday to create sympathy for plaintiffs and prejudice defendants. (2) The trial court should not have admitted a witness' deposition testimony that a total retrofit would have cost $48 million and should not have allowed plaintiffs' counsel to argue that figure as a "cost savings" for a damage award. The testimony was speculative, without foundation, and was really the testimony of the interrogating lawyer. Cost savings is not a way to measure damages for wrongful death. (3) Communications to the Federal Aviation Administration after the accident should not have been admitted into evidence, and witnesses should not have been questioned about the exhibits. (4) Aggravating circumstances should not have been submitted to the jury because plaintiffs failed to show defendants knew of the allegedly defective condition when it sold the product, knew or had reason to know their conduct involved a high chance of injury, or were indifferent to safety. (5) The trial court should not have submitted a certain instruction that did not afford defendants due process safeguards. (6) Anew trial or remittitur should have been ordered. The wrongful death award was grossly excessive, the product of misconduct, demonstrated bias, passion, and prejudice, exceeded fair and reasonable compensation, was unsupported by the evidence, and bore no relation to the damages authorized by the wrongful death statute. It was 87 times plaintiffs' economic damages and 46 times greater than any wrongful death verdict upheld by a Missouri appellate court.

Plaintiffs argue: (1) The final judgment in a companion case (Barnett) moots defendant's claims except the amount of compensatory damages and estopps defendant from contesting its liability. (2) The aggravating circumstance instruction was proper. Defendants made no specific objection that it violated due process and suffered no prejudice. The court submitted the proper instruction and form. (3) The tombstone photograph was relevant to the deceased's death and age. Defendants did not timely object or seek curative measures. The exhibit was not too prejudicial. (4) Reference to the $48 million cost of recall cannot be challenged in light of Barnett, was corroborated by other evidence, and was proper. (5) Certain exhibits were rightly admitted. (6) The trial court properly submitted the issue of aggravating circumstances to the jury. (7) A substantial aggravating circumstance award is justified and the evidence supports a substantial compensatory award.

Defendant responds that the unreviewed opinion of the Court of Appeals in the companion Barnett case does not collaterally estopp the Supreme Court from considering the issues in this appeal.

80769
Wallace Cotton v. Viva Wise
St. Louis City
Child custody

Wallace Cotton fathered two children. They lived with their mother, their mother's two older daughters (their half-sisters), and at times Cotton when he was with their mother. When the mother died, one half-sister, Viva Wise, took primary responsibility for the children. Cotton sought custody of the children. Wise sought guardianship and to be named an equitable parent. The trial court awarded guardianship and custody to Wise.

Cotton contends the guardianship statute, section 475.030, requires him to be found unfit, unwilling, or unable to care for the children before awarding guardianship to someone else. He argues he was not found unfit and not awarding guardianship to him was against the weight of the evidence. The court also determined Wise to be an equitable parent, which is not recognized by Missouri law. Cotton concludes the court awarded guardianship without a legal basis.

Wise argues the court found Cotton was unfit by finding facts, supported by the evidence, that Cotton largely lived separate from the children, placed the children in Wise's care, visited irregularly, had a history of alcohol abuse and violence and unemployment, usually lived with relatives, and failed to support his children with child support. She also argues that although the equitable parent doctrine is new to Missouri, applying it here is appropriate in that the court also granted the petition for guardianship.

The Guardian ad Litem submits that the trial court properly found Wise to be the equitable parent. The Guardian contends the courts have long recognized that special or extraordinary circumstances can exist to award custody to a non-parent—the equitable parent doctrine puts a name to what the courts have held. Finally, the Guardian argues the equitable parent doctrine is a narrow remedy that properly considers the both the child's and parent's interests.

80225
State of Missouri v. Randall B. Knese
St. Charles County
First degree murder, Attempted rape
Death, twenty years

Randall B. Knese attempted to have sex with his wife. When she refused, he covered her mouth, strangled her, slashed her neck, bit her, head butted her, and kicked or stood on her neck. Knese was convicted of first degree murder and attempted rape and sentenced to death and twenty years, respectively.

Knese contends (1) Gory photos were repeatedly shown to the jury, tipping the scales to finding guilt and assessing punishment. (2) The prosecutor improperly cross-examined Knese by asking about matters not referred to in direct examination, namely his confession, drug use, DWIs, and whether he choked his wife previously. (3) The punishment range should have been included in the attempted rape instructions. (4) The medical examiner should not have been permitted to give opinion that the victim was probably sexually assaulted and as to cocaine's effects. The probable sexual assault conclusion was not based on any medical evidence, and the jury could draw its own conclusion. The medical examiner was not qualified as an expert on cocaine, and the state did not disclose her conclusions. (5) Knese's statements while in the hospital should have been suppressed because of his physical and mental disabilities. (6) Seven witnesses were improperly permitted to present evidence on victim impact. (7) The prosecution failed to prove the essential element of deliberation, showing at most that Knese killed in the heat of anger. (8) The prosecutor engaged in improper argument. (9) Knese's defense attorney admitted he improperly excluded females from the jury. (10) The prospective jurors were not questioned whether they could consider a range of punishments less than death for murder. (11) Knese's counsel improperly stipulated certain items of evidence, waived Knese's appearance during jury selection, and agreed not to have an officer testify who would have offered testimony showing Knese's non-deliberation. (12) The jury was not instructed on the statutory mitigating circumstance, capacity to appreciate the criminality of his conduct. (13) The “depravity of mind” aggravating circumstance is unconstitutionally vague and was not supported by sufficient evidence. (14) The sentence is disproportionate. The Court does not engage in meaningful proportionality review. (15) During Rule 29.07 proceedings, the trial court improperly questioned Knese about his counsel’s representation, thereby leaving Knese unrepresented and compelling him to testify without knowing he was bound by his testimony.

The state argues: (1) The photos were admissible and showed relevant parts of the case, such as the crime scene and location of body and wounds. (2) The prosecutor properly questioned Knese on his past. The general subject was raised on direct exam. Giving the jury a more complete picture of himself did not prejudice Knese. (3) Instructions for the punishment for attempted rape could be presented before the penalty phase. The law does not require the jury to consider punishment and guilt simultaneously. In any event, Knese was not prejudiced. (4) The medical examiner was qualified to testify to the conclusions she reached from her autopsy and the facts, and she had sufficient medical knowledge to make her conclusions. (5) Knese understood his rights despite his injuries, and he knowingly, voluntarily waived them to make statements. (6) The victim impact evidence was appropriate. The Constitution allows for consideration of all evidence that may assist the jury in reaching its penalty-phase decision. (7) The evidence showed Knese deliberated. (8) The state's closing arguments were proper. The court should not intervene sua sponte. No manifest injustice resulted. (9) Defense cannot intentionally build error into a case by improperly striking jurors. No evidence showed any individual removed on the basis of gender or that their/her exclusion would have affected the outcome. (10) The judge has no obligation to ask any question during voir dire, and Knese never requested the jurors be asked whether they would automatically impose death. (11) Counsel's stipulations were proper: no grounds existed to oppose the exhibits; the officer would have added nothing; Knese voluntarily left the room during voir dire. (12) The evidence did not support giving a statutory mitigator of incapacity to appreciate criminality and conform conduct. (13) The statutory aggravator of depravity of mind was not vague and was supported by the evidence. (14) The punishment is not excessive or disproportionate. (15) The trial court did not improperly question Knese or deprive him of counsel and the right not to incriminate himself because the criminal trial was over.

WEDNESDAY, SEPTEMBER 9, 1998

80396
State of Missouri v. Bradley W. Harrison
Jackson County
First degree statutory sodomy (2 counts)
First degree child molestation (4 counts)
Furnishing pornographic material to a minor (2 counts)
20 years (2 counts), 7 years consecutive (4 counts) and $1000.00 (2 counts)

Bradley Harrison was convicted of sodomy, child molestation, and furnishing pornographic material to a minor for acts with a six-year-old girl who was living with him. He was sentenced to a total of twenty-seven years and fined a total of $2000.

Harrison contends: (1) Evidence of the uncharged crime of rubbing his penis against his baby daughter should not have been admitted. The statute that allows it, section 566.025, is unconstitutional. That statute provides that in certain prosecutions involving child victims, evidence that the defendant has committed other crimes within ten years involving a child victim is admissible to show the defendant’s propensity to commit the crime. This statute thus prevents the court from weighing the evidence's prejudicial effect against its probative value, and it violates Harrison's right to be tried only for the charged crime.

(2) The evidence on various counts was insufficient to support his convictions. The girl denied two incidents and never identified pornographic materials in court. (3) The state should not have been permitted to amend the information to change the dates on which the acts allegedly occurred after both sides concluded their cases-in-chief. (4) The court should have allowed Harrison's family to testify as to the little girl's poor reputation for truthfulness.

The state argues: (1) Section 566.025 is constitutional, has a rational basis and time limits, and allows the court to weigh the prejudicial effect. Evidence of Harrison's sexual acts with his baby is more probative than prejudicial because it shows his interest in children and disposition to exploit them. (2) The evidence, ie. the girl's testimony, supports the convictions on sodomy and furnishing pornography to a minor. The case should be remanded in part because the jury received an outdated definition of pornography for minors. Harrison should be discharged on one count of child molestation because he was charged with making the girl touch his buttocks, which is not a sexual offense. (3) Amending the charges was proper. No new or different offenses were charged. The state merely expanded the time they happened. Harrison denied the charges outright and would have been aware of any defense because two counts alleged the same time period from the beginning. (4) The court properly refused to allow Harrison's mother to testify about the girl's truthfulness because the mother saw her infrequently and could not describe the girl's reputation among her associates and friends.

80744
State of Missouri v. Robert Burns
Jackson County
First degree statutory sodomy
Fifteen years

Teenager Robert Burns was convicted of sodomy for having oral sex with a seven year-old boy. He was sentenced to fifteen years in prison. During trial, a fourteen-year-old witness and his mother were allowed to testify that when the witness was eight, Burns coerced him into oral sex.

Burns contends: (1) The witnesses’ testimony of the uncharged crime should not have been admitted. Section 566.925, which allows such evidence to show his propensity to commit the crime, is unconstitutional. It prevents the court from weighing the evidence's prejudicial effect against its probative value. (2) A mistrial should have been declared when one witness, a detective, testified to his opinion of the victim’s truthfulness. (3) The trial court improperly failed to instruct the jury that it was to decide Burn’s guilt of the charged crime, not the alleged oral sex described by the two propensity witnesses.

The state argues: (1) Section 556.025 is constitutional. It comports with societal values, has a rational basis, accords with other exceptions to the bar against evidence of uncharged crimes, limits the evidence by time, and allows the court to balance the evidence’s probative value versus its prejudicial effect. The witnesses’ testimony was more probative than prejudicial because it showed Burns’ sexual interest in children and his disposition to commit sodomy with seven-to-eight year old boys from his neighborhood.

(2) The drastic remedy of a mistrial was not necessary. The court instructed the jury to disregard the detective’s remark about the victim’s truthfulness, told the jury the state had been specifically prohibited from eliciting such testimony, and instructed the jury that a witness’ opinion as to the truthfulness of another witness was irrelevant. (3) Burns’ proposed instructions did not conform to accepted criminal instructions. They are not to be given with propensity evidence, and they impermissibly comment on evidence’s credibility. The defense made the argument in the instructions to the jury, so Burns was not prejudiced.

80775
State of Missouri ex rel. John Young v. City of St. Charles
St. Charles County
Discovery dispute; writ

The St. Charles chief of police dismissed Young from the city police department. Young brought an action to require the city’s personnel board to subpoena witnesses for discovery depositions prior to an administrative hearing on the appeal of his dismissal. The circuit court issued a writ of mandamus directing the personnel board to issue subpoenas.

The city argues: (1) Young has no right to pre-hearing deposition subpoenas for city’s personnel board administrative hearings—not under statute, constitution, or city charter, ordinances or regulations. (2) Young did not exhaust his administrative remedies and has an adequate remedy at law.

Young contends: (1) This is a constitutional home-rule charter municipal agency handling a "contested case", thus subject to the Missouri Administrative Procedure and Review Act (APA). The agency was performing a ministerial function that it can be ordered to perform. (2) Young has a right to take depositions for a municipal administrative contested case. The APA applies to municipal agencies and authorizes depositions as a procedural method of discovery.

77481
State of Missouri v. Donald Joe Hall
Greene County
Death penalty

On December 14, 1992, Donald Hall shot and killed William White, owner of Mary's Custom Jewelry in Springfield. Hall testified he argued with White, who pulled a gun and was shot in the struggle, and Hall's ex-wife came back to get jewelry. His ex-wife testified Hall planned to shoot White, and Hall stole the jewelry. After trial including other evidence, Hall was convicted of first degree murder and sentenced to death. He filed a post-conviction motion, which was overruled.

Hall contends the motion court erred in failing to find Hall's trial counsel was ineffective for: (1) not impeaching his ex-wife's testimony with her prior statements, (2) not impeaching a crime scene witness whose change in testimony made the difference between the defense and prosecution's theory of the case, (3) failing to present an expert witness whose testimony as to the physical evidence, including blood patterns, would have supported Hall's version of the events and been inconsistent with his ex-wife's.

Hall further contends: (4) He should have been permitted to present evidence that White bought and sold stolen goods and bought a gun, which explained Hall's state of mind and corroborated his testimony. (5) The court improperly refused to instruct the jury on second degree murder under both the conventional and felony murder theories. (6) His counsel failed to present available evidence to impeach his ex-wife's testimony (the state's key witness) and establish her motive to seek revenge. (7) The motion court failed to make adequate findings of fact and conclusions of law on all claims raised in the post-conviction motion. (8) A change of venue should have been ordered due to extensive publicity. (9) The prosecutor engaged in improper argument. (10) Trial counsel was ineffective in failing to call members of Hall's family without criminal records as penalty phase mitigation witnesses. (11) The aggravating circumstance of a murder committed to avoid arrest is unconstitutionally vague as it could apply to any murder. (12) Hall should not have been required to appear in shackles during the penalty phase. (13) Counsel failed to fully and competently litigate a pretrial motion to bar the ex-wife's testimony as she was incompetent and for failing to challenge her credibility at trial by presenting her treating physicians to testify that she was a pathological liar.

The state argues: (1) Trial counsel's decision not to impeach Hall's ex-wife was a matter of strategy because the impeachment evidence was also harmful. The evidence would also contradict an instruction Hall requested and would not negate deliberation. (2) Trial counsel's decision not to impeach a scene witness was a matter of strategy because it did not provide Hall a defense. (3) Expert testimony on blood evidence would not have provided Hall with a defense. (4) Evidence that White bought and sold stolen goods and said he bought a gun was properly excluded because it was largely irrelevant and hearsay. (5) No prejudice resulted from no instruction on second degree felony murder. The court instructed on the lesser-included offense of second degree conventional murder. The jury found Hall deliberated, so the jury would not have reduced Hall's sentence if another lesser-included offense had been submitted. (6) Counsel was not ineffective for failing to impeach Hall's ex-wife. The evidence did not give Hall a defense. Hall interfered with cross-examination. Purported witnesses avoided the defense and would not have testified favorably. (7) The findings of fact and conclusions of law provided for meaningful appellate review. The claims at issue were conclusory and meritless on their face. (8) No venue change was necessary. Venirepersons with prejudice were stricken. Others had not formed an opinion. Hall presented no evidence jurors were biased. (9) The prosecutor's arguments were proper. (10) Counsel acted reasonably in not calling additional penalty phase witnesses who were not close with Hall. (11) The aggravating circumstance of murder to avoid arrest is not vague. Evidence supported it. Another valid aggravating circumstance permitted the death penalty. (12) Hall presented no evidence the jury observed him shackled and was prejudiced. (13) Counsel has no duty to find an expert to declare a witness incompetent, and Hall failed to overcome the presumption of the witness' competency. (13) Under independent review, the court should affirm the sentence.

THURSDAY, SEPTEMBER 10, 1998

80699
State of Missouri v. Ronald Lee Neff
McDonald County
Assault in the second degree (4 counts)
6 months in county jail and a $1,000.00 fine (each count)

Ronald Lee Neff, while under the influence of alcohol, injured four people by failing to yield to their car at an intersection. During Neff’s attorney’s closing argument, he asserted that there was no evidence of any prior criminal activity by Neff. The prosecutor objected to the remark on the basis that there was no evidence of criminal activity because the defendant did not testify. Neff sought a mistrial. The court denied the mistrial but instructed the jury to disregard the prosecutor's statement.

Neff contends that the prosecutor's statement was a direct reference on his failure to testify and requires a new trial. He argues defense's comment on lack of a criminal record does not justify referring to Neff’s failure to testify. He also argues that since the comment was made during closing argument, he could take no action to nullify the inference.

The state contends defense counsel invited the error by arguing evidence that was excluded because of Neff's failure to testify. The state's comment was made to the judge to explain his objection to defense counsel's argument--to explain why no criminal record evidence appeared--not to try to draw a negative inference of guilt from Neff's failure to testify. A mistrial is not mandated for every reference to the accused's failure to testify. The trial court's instruction was sufficient remedial action. Jurors are presumed to follow the court's instruction. The state did not say anything the jury did not already know, did not try to draw a negative inference, and never mentioned it again. Overwhelming evidence supported finding Neff guilty.

80790
State of Missouri v. Gregory S. Reber.
Newton and Greene Counties
Securities fraud (12 counts)
15 years

Gregory S. Reber solicited money from investors for investments that did not exist. On change of venue to Greene County on account of pre-trial publicity, he was convicted on twelve counts of securities fraud and sentenced to fifteen years total.

Reber admits to making false statements of material facts to investors to take their money. But he argues there was insufficient evidence to convict him under section 409.101, RSMo, for the offer, sale, or purchase of any security, with security defined as "any investment contract", because the agreements with investors were not "investment contracts". The investors were not participating in a common enterprise, and he promised to repay them. Reber also argues he should have had an evidentiary hearing on his allegation that pre-trial publicity biased the judge.

The state argues sufficient evidence supported the convictions, and reasonable jurors could infer from the evidence that Reber sold "investment contracts". The state also contends Reber failed to file a request for an evidentiary hearing on the judge's alleged bias, failed to plead facts showing he could not have raised the claim on direct appeal, and failed to allege facts and prove the judge was biased.

The state further contends the motion court did not err in denying Reber's post-conviction motion without using the word "judgment." The motion court's order said it was an order, which is deemed a judgment for appeal per Rule 29.15(I)(1995). Rule 74.01(a) in inapplicable; it is inconsistent with Rule 29.15.

Reber responds that Rule 74.01(a) does apply to Rule 29.15 proceedings. It either advances or is neutral to Rule 29.15's purposes in that the parties will know when the court has made a final judgment, and it will not delay adjudicating post-conviction motions.

80836
Tina Marie Heinen, et al. v. Healthline Management Inc., et al.
St. Louis City
Malpractice and wrongful death

Marlene Heinen's children, mother, and husband sued Dr. Rudolpho Guillen and his employer, Helathline Managment, Inc., for medical malpractice and M. Heinen's wrongful death. The jury found for plaintiffs. The doctor filed a motion for new trial. The court granted the motion ninety-four days after it was filed, finding several jurors concealed that they were parties in prior lawsuits.

Plaintiffs contend the trial court was without jurisdiction to order a new trial more than ninety days after the motion was filed. Plaintiffs argue the court should not have granted the motion because there is no evidence the jurors intentionally concealed the lawsuits, based on the age, nature, and significance of the cases and because counsel's voir dire questions were vague.

The doctor argues the court timely ruled on the motion because there was an intervening Thanksgiving holiday and a court-approved holiday that should not be counted in the ninety days under Rule 44.01(a). Alternatively, the doctor cross-appeals that if the judge was out of time in ruling on the new trial motion, then she erred in not sustaining the motion earlier due to the juror misconduct. The doctor argues the jurors intentionally concealed prior claims. They understood the questions and remembered the suits/events, and all were material.

77168
State of Missouri v. Donald Jones
St. Louis City
First degree murder, armed criminal action
Death and life

Donald Jones beat and stabbed to death his grandmother because she would not give him money to buy drugs. He stole her money, VCR and car. Against the family’s wishes, the prosecutor sought the death penalty. Jones was convicted of first degree murder and armed criminal action and sentenced to death and life, respectively. He filed a post-conviction motion, which the court overruled.

Jones contends: (1) The prosecutor improperly argued over objection that the family would want the death penalty if a stranger had killed the victim. (2) The judge should have disqualified himself because of his longstanding animosity towards one of Jones’ counsel. Or he should have let another judge hear the motion to disqualify him, as he attacked witness testimony, prevented counsel from representing Jones, and testified as a witness. (3) Death should not have been imposed against the family’s wishes. It violates their right to be heard at sentencing and violates the victim rights amendment, article I, section 32 of the state constitution. (4) An evidentiary hearing was necessary on several claims in the post-conviction motion. (5) The court erred in submitting an instruction modeled on MAI-CR 3rd 308.03 related to the effect of drug use on defendant’s mental state.

(6) The court improperly restricted cross-examination of an expert about his finding that Jones suffered from drug dependence, not merely drug abuse, precluding Jones from having the requisite mental intent for first degree murder. (7) The court improperly restricted the jury’s use of witness testimony about Jones’ voice on his audio taped confession. (8) Counsel should have been permitted to ask prospective jurors their feelings about life in prison and punishment for committing a crime on drugs or alcohol, to see if they could consider the full range of punishment. (9) The jury’s consideration of mitigating evidence warranting less than death was limited. Mitigation evidence of lack of conduct violations should have been admitted, and the jury should have been instructed with a list of non-statutory mitigating circumstances. (10) The motion court improperly limited asking jurors about trial counsel’s ineffective assistance and juror misconduct.

(11) A prosecutor’s unrestricted discretion to seek the death penalty when the family opposes it is unconstitutional. (12) The prosecutor improperly told prospective jurors they could not rely on sympathy in setting punishment because they can. (13) Certain of the state’s for cause challenges should not have been sustained because the prospective jurors indicated they could consider death and follow the law. (14) A potential juror should have been excluded for cause for knowing the prosecutor, rather than under a peremptory challenge. (15) The trial court should have instructed the jury on voluntary manslaughter because the evidence showed Jones became enraged and killed his grandmother in response to her criticizing him for drinking and cocaine use.

(16) A Batson violation occurred. The prosecutor’s reason for striking a man from the jury was pretext for race discrimination. (17) The "depravity of mind" aggravating circumstance is unconstitutionally vague, even as narrowed by Preston. (18) The sentence is disproportionate. The family did not want the death penalty. The Court does not engage in meaningful proportionality review. (19) The jury should not have been instructed pursuant to MAI-CR 3rd 300.20 concerning the testimony of certain psychiatric witnesses. (20) Jones’ initial statements to police were made without being apprised of his rights, and his statements after hearing his rights were fruits of the earlier questioning. Counsel failed to present evidence Jones was questioned and other evidence was taken without hearing his rights. (21) The jury is improperly instructed on "reasonable doubt" because of its use of the terms "firmly convinced" and "overcomes every possible doubt."

The state argues: (1) The prosecutor’s statement that the family would have supported the death penalty for a stranger was proper response to Jones’ argument, and a permissible attempt to point out bias and credibility in Jones’ family members testimony, about the death penalty. (2) The judge did not need to disqualify himself. No facts showed he could not be impartial simply because he pointed out counsel’s misconduct in unrelated cases. Counsel was second-chair and could have withdrawn. An independent judge was not required to hear the evidence because the court knew the alleged facts and they did not warrant recusal. (3) The court did not violate the victim rights amendment by not following the wishes of Jones’ family, who were also related to the victim. The Constitution does not require the wishes of crime victims to be followed as to punishment. (4) No evidentiary hearing was necessary on claims where no facts were alleged and which the record refuted. One claim is not congizable in the proeccedings because it is a constitutional attack for direct appeal. (5) The MAI-CR3d instruction did not preclude consideration of relevant evidence but gave the jury discretion to consider the evidence’s weight, consistent with Missouri law.

(6) Limiting an expert’s cross-examination was proper because the difference between cocaine dependence and abuse was irrelevant, and Jones intended to use it improperly—to try to negate his capacity to deliberate by his voluntary intoxication. (7) The court rightly instructed the jury on limiting the use of witness testimony about Jones’ voice on audiotapes. Jones was again trying to improperly use voluntary intoxication as a defense. (8) The trial court did not limit questioning prospective jurors about whether they could consider the range of punishment. Limiting questioning of two prospective jurors could not have prejudiced Jones because they did not sit on the jury. (9) A jailer’s testimony about other inmates’ conduct violations was not in an offer of proof and is irrelevant. Listing nonstatutory mitigating evidence is not required. (10) The motion court did not abuse its discretion by not allowing Jones to harass jurors with unlimited questions. A circuit court rule gives him no right, but, in the court’s discretion, allows him to question jurors. Jones failed to show additional questioning was necessary. He presented conclusory reasons that showed he wished to have jurors improperly impeach their verdict.

(11) Jones’ claim that prosecutorial discretion makes the death penalty unconstitutional has repeatedly been found without merit. (12) Sympathy is not a factor for the jury to consider in deciding the case. (13) Challenged jurors were not qualified to serve because they had death penalty views that would substantially impair their jury duties. (14) The court properly denied a for cause challenge to a juror who knew the prosecutor because the juror made it clear he could fairly judge the case. He did not prejudice Jones as he did not sit on the case. (15) The court did not prejudice Jones by refusing the voluntary manslaughter instruction. The conventional second degree murder instruction was submitted, yet the jury found Jones reflected, and there is no basis to suggest the jury would have found differently for another lesser included offence. The evidence did not support the voluntary manslaughter instruction.

(16) The prosecutor gave a race neutral reason for his strike. Jones failed to prove it was pretextual. The Court is entitled to believe the prosecutor. (17) The aggravating circumstance (that the murder involved depravity of mind) is not too vague. Jones could not have been prejudiced by it in that the jury found another, valid aggravator, too. (18) Proportionality review is meaningful. A review of Jones’ sentence shows it should be affirmed. The wish of some family members is irrelevant to proportionality analysis. (19) Jones cannot challenge instructions submitted at his request. The instructions did not deny him a right to present a complete defense or relieve the state of its burden of proof. (20) Jones’ statements were properly admitted. Jones made the first one before he was in custody, and it did not result in incriminating evidence. Jones made the second one after receiving his rights. There was overwhelming evidence of his guilt. His counsel was not ineffective for not presenting such evidence. (21) The instructions defining reasonable doubt did not impermissibly lower the state’s burden of proof.