recognizing that the jury in the punishment phase of a death penalty case may consider evidence and argument inadmissible in the guilt phase, including argument concerning the need to impose the death penalty in order to prevent the defendant from committing future crimes
How later courts described this case
- recognizing that the jury in the punishment phase of a death penalty case may consider evidence and argument inadmissible in the guilt phase, including argument concerning the need to impose the death penalty in order to prevent the defendant from committing future crimes
- finding admissible defendant's immediate postarrest silence where natural expectancy of an exculpatory statement existed and defendant's silence was probative of inconsistencies in that testimony
- interpreting the clearly-erroneous standard in the Batson4 context, “if the trial court’s account of the evidence is plausible in light of the record viewed in its entirety, an appellate court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” (internal punctuation omitted)
- rejecting defendant’s contention that use of “firmly convinced” in reasonable doubt instruction violates Winship as language is valid “when it is considered in context,” has been “employed in federal and state courts alike,” and properly assists lay jurors in their understanding of “beyond a reasonable doubt”
Written by the judges who cited it.
The opinion
BLACKMAR, Justice,
concurring in part and dissenting in part.
I concur in the judgment of affirmance of the conviction and in all parts of the principal opinion except VI and VII.
I specifically approve of the disposition of the Batson issue as applied to this pre- Batson trial. It is difficult for trial counsel to reconstruct the situation which existed many months ago, when peremptory challenges were made. Now that prosecuting attorneys and judges have been alerted to the Batson requirements, it will be easier to analyze particular cases. Judge Robertson quite properly points out that we must place major reliance on trial judges. Prosecutors also have a great responsibility for making sure that the reasons given represent bonafide concerns and not simply window dressing to justify discriminatory strikes.
With regard to Part VI, the principal opinion demonstrates that the question about the defendant’s silence at the time he was arrested was not objected to, so that review is under the plain error standard. It is logical to assume that, if the defend *74 ant had had a purpose of turning himself in, he would have announced this purpose when arrested. Inasmuch as this evidence was received without objection, the State was entitled to refer to it in argument.
I have serious reservations about the broader propositions as to admissibility of post-arrest silence as set out in Part VI of the principal opinion. The principal opinion is convincing on the facts of the particular case, but I see no occasion for commenting more broadly under these circumstances.
The principal opinion is narrowly drawn in limiting argument about the possibility of the defendant’s killing or engaging in violence in the penitentiary, so that it applies only to cases in which killing in custody is assigned as an aggravating circumstance. In spite of this limitation, I believe that the general rule that the defendant’s future criminal conduct may not be predicted in oral argument should apply here. 1 The attempted distinction, on the basis that only the penalty phase of the trial is impacted here, is not sufficient. A jury in a one-phase trial would have no occasion to consider the defendant’s future conduct unless it found him guilty.
There should be a limit to prosecuting attorneys’ attempts to inflame the jury. This Court has been unduly tolerant of prosecutors’ arguments in other capital murder cases. 2 Prosecutors have responded with continued inflammatory broadsides. I believe that there is a time for control.
My conclusion is fortified by two other examples in the present case. The prosecutor argued as follows:
Why should you and I, as lawful, working citizens of this community, work the rest of our natural lives just so Calvert Antwine can live in the penitentiary for the rest of his natural life or at least until he’s served 50 years in prison?
He continued:
And isn’t it much more humane to sentence this man to death so that his brother can get on with his life, and so that the two children can get on with their lives, instead of having to think, every day for the next 50 years, they have a brother or a father locked up in the penitentiary. Ladies and gentlemen, I submit to you that there is only one verdict you can return as to Count II, and that is a verdict of death.
The first of these arguments is obscene to the point of reminding us of the days of Hitler. It has no place in an American courtroom. The argument about relieving the defendant’s family of his presence is little better. No objection was made to either of these arguments, and the second was the subject of effective response, but I believe that they may properly be considered in context.
Because of the prosecutor’s arguments I am not willing to affirm the death sentence, and would remand the case for retrial of the penalty phase.
. See State v. Raspberry, 452 S.W.2d 169, 172-73 (Mo.1970); State v. Mobley, 369 S.W.2d 576, 581 (Mo.1963); State v. Tiedt, 357 Mo. 115 , 206 S.W.2d 524, 527-29 (1947); State v. Heinrich, 492 S.W.2d 109, 113-16 (Mo.App.1973).
. See e.g., State v. Driscoll, 711 S.W.2d 512 (Mo. banc 1986); State v. Roberts, 709 S.W.2d 857 (Mo. banc 1986); State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983).