holding that in the penalty phase of death penalty case there is no prejudice unless “there is no reasonable probability that the jury would have reached a different sentencing....”
How later courts described this case
- holding that in the penalty phase of death penalty case there is no prejudice unless “there is no reasonable probability that the jury would have reached a different sentencing....”
- “A holding that would require the judge to interrupt counsel presents myriad problems.”
- evidence that defendant took a few steps toward victim before stabbing victim gave rise to reasonable inference that defendant reflected for at least the amount of time it took to reach victim
- calling defense witnesses "liars" not prejudicial where evidence supported challenge to credibility
Written by the judges who cited it.
The opinion
BLACKMAR, Judge,
concurring.
I concur except as to the discussion of “sympathy” and “mercy” at page 910. I do not believe that the prosecutor’s reference to a supposed oath that the jurors did not take is sufficient to require vacation of the sentence. I would also not preclude the prosecutor from arguing that the jurors should perform their duty without sympathy, if the prosecutor deems such an argument wise.
I cannot agree that “sympathy on the other hand, is not a proper factor for the jury to consider in reaching its decision.” Nor do I agree with the statement that “the mercy a jury is permitted to exercise must be grounded in the circumstances of the case, see § 565.030.4, ...” The statute simply says “circumstances,” and does not confine them to the case. It is the sense of the statute that the jury may decide against the death sentence for any reason that seems satisfactory to it, or for no reason at all. The jury should be instructed in terms of the statute, and should not be otherwise encumbered. A defense lawyer who argues for “sympathy” should not be interrupted by the court. California v. Brown, 479 U.S. 538 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987), simply holds that a state may prescribe a form of instruction that we have not chosen to adopt.
I feel it necessary to express these views because I think that the principal opinion may induce trial judges to impose further restrictions on defense counsel, who already have a hard row to hoe in capital cases.