holding that the reasonable doubt standard does not apply to mitigating evidence or non-statutory aggravating factors and that under Ring and Apprendi only evidence functionally equivalent to an element, including statutory aggravating circumstances, must be found beyond a reasonable doubt
How later courts described this case
- holding that the reasonable doubt standard does not apply to mitigating evidence or non-statutory aggravating factors and that under Ring and Apprendi only evidence functionally equivalent to an element, including statutory aggravating circumstances, must be found beyond a reasonable doubt
- concluding that plain error review is waived when defendant affirmatively makes strategic decision not to object to the admission of the statement or states that it has no objection; plain error review is only available where no objection is made due to inadvertence or negligence
- holding that plain error during closing requires the defendant to prove that the argument had a decisive effect, established by reviewing the whole record and not just an isolated segment of the record
- holding that plain error review does not apply when a party affirmatively states that it has no objection to evidence an opposing party is attempting to introduce
Written by the judges who cited it.
Distinguished
Distinguished by State v. Coffman, 2012 Mo. App. LEXIS 1142 (2012)
Coffman contends that Johnson and Glass are inapplicable to the instant case.
The opinion
RICHARD B. TEITELMAN, Judge,
concurring in part and dissenting in part.
I respectfully dissent from the principal opinion to the extent that it finds no Bat- son 1 violation with respect to the state’s peremptory strike of Ms. Cottman.
In response to appellant’s Batson challenge, the state offered two justifications for striking Ms. Cottman: her past association with the Annie Malone Children’s Home and her alleged unwillingness to answer questions regarding whether she could impose the death penalty. A review of the record demonstrates that neither justification is race-neutral.
As a child, appellant was under the legal custody of the Division of Family Services.
*590 The division placed appellant in several children’s homes, including Father Dunne’s, St. Joseph’s Home for Children and the Annie Malone Children’s Home. The state justified its strike of Ms. Cott-man, in part, because she had served as a foster parent for children placed with the Annie Malone Children’s Home. The state’s justification has a factual, race-neutral relationship to this case because both Ms. Cottman and appellant share an association with the Annie Malone Children’s Home. There are, however, two critical flaws in the state’s justification.
First, the logical relevance of appellant’s and Ms. Cottman’s association with Annie Malone Children’s Home applies with equal force to any other juror who was associated with an agency or organization that provided services to appellant. There were at least four white jurors who had substantial contacts with the division, which had legal custody of appellant for most of his childhood. None of these jurors was stricken. The failure to strike similarly situated white jurors severely undermines the race-neutrality of the state’s strike. Miller-El v. Dretlce, 545 U.S. 231, 247 , 125 S.Ct. 2317 , 162 L.Ed.2d 196 (2005).
A second and related flaw is that the state did not ask any other jurors, including some who had experience with the division and the foster care system, if they were familiar with the Annie Malone organization or any of the several other pii-vate organizations that had offered services to appellant during his childhood. If the state’s concerns regarding Ms. Cott-man’s service were truly race-neutral, then it follows that the prosecutor would have asked the remaining jurors if they, like Ms. Cottman, had any past association with any of these organizations. The state’s failure to ask this simple question of similarly situated white jurors indicates the state’s concern regarding Ms. Cott-man’s association with Annie Malone Children’s Home was not race-neutral and was, instead, an impermissible pretextual “makeweight” justification for striking Ms. Cottman. See Miller-El, 545 U.S. at 246 , 125 S.Ct. 2317 .
The state also justified its strike of Ms. Cottman by arguing that she exhibited an “unwillingness” to answer questions during the death-qualification voir dire. The state asked nearly all the prospective jurors if they could consider imposing the death penalty. Ms. Cottman, like most other jurors, responded with short and direct answers to the question posed. The state did not raise an issue as to her demeanor regarding any unwillingness by Ms. Cott-man to answer questions during voir dire. Instead, the state first raised this issue in response to appellant’s Batson challenge. If Ms. Cottman exhibited by her demeanor an unwillingness to answer the state’s questions, this demeanor is not reflected in the record. A “strike based on vague references to attributes like demeanor are largely irrelevant to one’s ability to serve as a juror and expose venirepersons to peremptory strikes for no real reason except their race.” State v. McFadden, 191 S.W.3d 648, 655 (Mo. banc 2006); quoting State v. Edwards, 116 S.W.3d 511, 550 (Mo. banc 2003)(Teitelman, J., concurring). The state’s vague allegation of an unfavorable demeanor is not apparent in the record and should not be considered a sufficient rebuttal to appellant’s initial Batson objection. Id.
In light of the totality of the foregoing facts and circumstances, I am left with a definite and firm conviction that the trial court erred in overruling appellant’s Bat-son challenge to the state’s peremptory strike of Ms. Cottman. Therefore, I respectfully dissent from the principal opinion to the extent that it finds no Batson violation with respect to the state’s per *591 emptory strike of Ms. Cottman. The Bat-son violation requires the judgment to be reversed and the case to be remanded. I concur in all other parts of the principal opinion.
. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).