Appendix — Roper v. Simmons

No. 03- G32,

(CAPITAL CASE)

In the

SUPREME COURT OF THE UNITED STATES

October Term, 2003

DONALD P. ROPER,

Superintendent, Potosi Correctional Center,

Petitioner,

Vv.

CHRISTOPHER SIMMONS,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Missouri

APPENDIX

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

JAMES R. LAYTON

State Solicitor

STEPHEN D. HAWKE

Counsel of Record

Assistant Attorney General

P.O. Box 899

Jefferson City, MO 65102

Phone: (573) 751-3321

Fax: (573) 751-3825

Attorneys for Petitioner

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TABLE OF CONTENTS

August 26, 2003 Opinion by the Supreme Court of

EE CLRUR ahead er eerie skueéeeues A-2

i eee ea cee ewe eeees A-56

May 3, 2002 Writ Summary and Petition for Writ of

oe sn ep eeeasieces A-121

November 26, 2002 Preliminary Writ of Habeas

ea Canin een eee ns A-141

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SUPREME COURT OF MISSOURI

en banc

State ex rel. Christopher

Simmons, :

Petitioner,

No. SC84454

vs.

Donald P. Roper, Superintendent,

Potosi Correctional Center,

|

i i a oo oe oe

Respondent.

ORIGINAL PROCEEDING IN HABEAS

CORPUS

Christopher Simmons was sentenced to death for

a murder he committed when he was 17 years old. He

argues that to execute him for a crime committed when

he was under 18 constitutes cruel and unusual

punishment.

In Thompson v. Oklahoma, 487 U.S. 815

(1988), the Supreme Court of the United States held

that is constituted cruel and unusual punishment to

execute persons who were 15 years of age or younger at

the time of their offense. The following year, in

Stanford v. Kentucky, 492 U.S. 361 (1989), the

Supreme Court held that there was not then a national

consensus against the execution of those who were 16

or 17 years old at the time of their crimes and declined

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to bar such executions. On that same day, the

Supreme Court held that there was not then a national

consensus to bar the execution of those who were

mentally retarded. Penry v. Lynaugh, 492 U.S. 302

(1989).

In 1993, Christopher Simmons murdered Shirley

Crook. Because of Stanford, he did not argue that his

age constituted a bar to imposition of the death

penalty, although he did argue that his age was a

mitigating circumstance. He was convicted of first-

degree murder and sentenced to death in accordance

with the jury’s verdict. This Court affirmed his

conviction and death sentence, as well as the denial of

post-conviction relief. State v. Simmons, 944 S.W.2d

165 (Mo. banc 1997), cert. denied, 522 U.S. 953

(1997).’

Last year, in Atkins v. Virginia, 536 U.S. 304

(2002), the Supreme Court held that a national

consensus had emerged against the execution of

mentally retarded offenders since Penry. Mr.

Simmons now asks us to hold that a similar consensus

against the execution of juveniles has developed since

Stanford, that the rationale for the Supreme Court’s

determination that the execution of juveniles was not

cruel and unusual punishment has disappeared, and

that the Eighth Amendment bars his execution.

This Court agrees. Applying the approach taken

in Atkins, this Court finds that, in the fourteen years

'The facts underlying Mr. Simmons’ crime and conviction are

set out in detail in that opinion and will not be repeated here.

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since Stanford was decided, a national consensus has

developed against the execution of juvenile offenders,

as demonstrated by the fact that eighteen states now

bar such executions for juveniles, that twelve other

states bar executions altogether, that no state has

lowered its age of execution below 18 since Stanford,

that five states have legislatively or by case law raised

or established the minimum age at 18, and that the

imposition of the juvenile death penalty has become

truly unusual over the last decade.’ Accordingly, this

Court finds the Supreme Court would today hold such

executions are prohibited by the Eighth and

°The terms “juvenile death penalty” and “juvenile executions”

are terms of art used to refer to the execution of those who were

under age 18 at the time of their crimes. The term “juvenile” is

therefore used in this opinion to refer to those under age 18

when they committed their crime, although the Court

recognizes that, for purposes of juvenile division jurisdiction,

17-year-olds are not considered juveniles in Missoun. Sec.

211.031. Various other states that also treat 17-year-olds as

adults for purposes of juvenile court jurisdiction nonetheless do

not have a juvenile death penalty - that is, they bar the execution

of those under 18 at the time of their crimes. See Office of

Juvenile Justice and Delinquency Prevention, OJJDP

Statistical Briefing Book (Apr. 25, 2002), af

http://ojjdp.ncjrs.org/ojstatbb/html/qa085.html. Of course,

16-year-olds are also now subject to the death penalty in

Missouri even though they are considered juveniles by

Missouri’s court system, although they can be certified to stand

trial as an adult. Sec. 211.071. In Missouri, a 15-year-old can

also be certified for trial as an adult but cannot be subjected to

the death penalty. Jd. Self-evidently, the death penalty presents

different issues than does the issue of who is a juvenile for

purposes of juvenile division junsdiction.

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Fourteenth Amendments. It therefore sets aside Mr.

Simmons’ death sentence and re-sentences him to life

imprisonment without eligibility for probation, parole,

or release except by act of the Governor.

I. RETROACTIVE APPLICATION OF

JUVENILE DEATH PENALTY

The state contends that this Court should not

reach the substantive issue whether the execution of

persons for crimes committed as juveniles is prohibited

by the Eighth and Fourteenth Amendments, because

Mr. Simmons is barred from raising it since he did not

do so at the time of his trial. We reject this argument.

In Penry, before reaching the substantive issue

whether the Eighth Amendment prohibited the

execution of the mentally retarded, the Supreme Court

considered whether a decision barring such executions

would apply retroactively under the principles set out

in Teague v. Lane, 489 U.S. 288 (1989). Penry

answered the question in the affirmative, stating,

“(T]he first exception set for in Teague should be

understood to cover not only rules forbidding criminal

punishment of certain primary conduct but also rules

prohibiting a certain category of punishment for a class

of defendants because of their status or offense.” Id. at

330. The Supreme Court concluded:

Thus, if we held, as a substantive matter,

that the Eighth Amendment prohibits the

execution of mentally retarded persons

such as Penry regardless of the

procedures followed, such a rule would

fall under the first exception to the

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general rule of nonretroactivity and

would be applicable to defendants on

collateral review.

Id.

Penry went on to hold that no national

consensus against the execution of the mentally

retarded existed in 1989. But, Atkins found that such

a consensus had developed by 2002 and that the

Eighth Amendment “places a substantive restriction

on the State’s power to take the life’ of a mentally

retarded offender.” Atkins, 536 U.S. at 321, quoting,

Ford v. Wainwright, 477 U.S. 399, 405 (1986). In

Johnson v. State, 102 S.W.3d 535, 539-40 (Mo. banc

2003), this Court determined that Atkins applied

retroactively. Accord Van Tran v. State, 66 S.W.3d

790, 811 (Tenn. 2001) (holding prior to Atkins that

new rule barring execution of mentally retarded would

be applied retroactively).

In parallel fashion, if, as a substantive matter,

the Eighth Amendment prohibits the execution of

persons under age 18 at the time of their offense

regardless of the procedures followed, then such a rule

would also fall under the first exception to

nonretroactivity under Teague because it would

deprive the state of the power to impose the

punishment of death on such a person. Cf. Penry, 492

U.S. at 330. Such a rule would therefore be applicable

to persons, such as Mr. Simmons, whose cases are on

collateral review, and the usual waiver rules will not

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apply.’ See also Reed v. Ross, 468 U.S. 1, 16 (1984)

(“(W)here a constitutional claim is so novel that its

legal basis is not reasonably available to counsel, a

defendant has cause for his failure to raise the claim in

accordance with applicable state procedures.”).

II. NATIONAL CONSENSUS AGAINST

EXECUTION OF JUVENILES AND THE

MENTALLY RETARDED

To determine whether the application of the

death penalty to juveniles constitutes cruel and

unusual punishment, it is helpful to examine the

Supreme Court’s decisions in prior cases addressing

the execution of juveniles and of the mentally retarded.

A. The Death Penalty for Juveniles:

Thompson and Stanford

1. Thompson v. Oklahoma. In Thompson,

487 U.S. 815 (1988), the Supreme Court determined

that the Eighth Amendment categorically prohibits the

execution of those who were 15 years old or younger at

the time of their crimes. Using an approach similar to

that which he would utilize in Atkins some fourteen

years later, Justice Stevens, in the principal opinion,

said that in determining what constitutes cruel and

‘Because, here, Teague requires retroactive application, and

because state courts cannot apply retroactivity principles more

narrowly than did Teague, there is no need to undertake the

Stovall v. Denno, 388 U.S. 293 (1967), analysis discussed by

this Court in State v. Whitfield, 107 S.W.3d 253, 267-68 (Mo.

banc 2003).

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unusual punishment, judges should be “guided by the

‘evolving standards of decency that mark the progress

of a maturing society.” Id. at 821, quoting, Trop v.

Dulles, 356 U.S. 86, 101 (1958). Such standards

cannot remain static, but must “acquire meaning as

public opinion becomes enlightened by humane

justice,” for “a principle to be vital must be capable of

wider application than the mischief which gives it

birth.” Id. at 821 n.4, quoting, Weems v. United

States, 217 U.S. 349, 373, 378 (1910).

To determine current standards of decency,

Thompson examined: (a) relevant legislative

enactments, and (b) evidence of how juries viewed the

propriety of execution of the mentally retarded. It also

considered (c) the views of respected national and

international organizations. Finally, in light of the

above and other factors, (d) the Supreme Court made

its own judgment as to the propriety of such executions

and explained “why these indicators of contemporary

standards of decency confirm our judgment that such

a young person is not capable of acting with the degree

of culpability that can justify the ultimate penalty.”

Thompson, 487 U.S. at 822-23.

a. Legislative Enactments. In reviewing

statutes governing punishment of children, Thompson

found that “(t]he line between childhood and adulthood

is drawn in different ways by various States.” Id. at

824. Fourteen state legislatures then barred capital

punishment altogether. Id. at 826. In nineteen other

states, the legislature permitted capital punishment,

but state statutes failed to expressly state the

minimum age for its imposition. Jd. at 826-27.

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Eighteen remaining states set a minimum age, varying

from 16 to 18. Id. at 829. No legislature had adopted

a statute explicitly permitting the execution of those

under age 16. Id.

b. Imposition of the Death Penalty. Thompson

also found that juries rarely imposed the death penalty

on those under 16, that only eighteen to twenty such

persons had been executed in the 20“ century, and only

one since 1948. Id. at 832. Between 1982 and 1986,

only five persons age 15 or younger were sentenced to

death in the United States, leading the Court to

conclude that, “these five young offenders have

received sentences that are ‘cruel and unusual in the

same way that being struck by lightning is cruel and

unusual.” Id. at 833, quoting, Furman v. Georgia,

408 U.S. 238, 309 (1972) (quoting Stewart, J.,

concurring).

c. National and International Views. As a part

of its discussion of legislation, the Supreme Court

considered the views of respected national religious,

social, and professional organizations, including the

American Bar Association (“ABA”) and the American

Law Institute, both of which it said “have formally

expressed their opposition to the death penalty for

juveniles.” Id. at 830. And, stating that it had

“previously recognized the relevance of the views of the

international community in determining whether a

punishment is cruel and unusual,” id. at 830 n.31

(citations omitted), the Court also considered the

sentencing practices of European and other countries,

stating:

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Although the death penalty has not been

entirely abolished in the United Kingdom

or New Zealand (it has been abolished in

Australia, except in the State of New

South Wales, where it is available for

treason and piracy), in neither of those

countries may a juvenile be executed.

The death penalty has been abolished in

West Germany, France, Portugal, The

Netherlands, and all of the Scandinavian

countries, and is available only for

exceptional crimes such as treason in

Canada, Italy, Spain, and Switzerland.

Juvenile executions are also prohibited in

the Soviet Union.

Id. at 831-31 (footnote omitted).

d. Independent Analysis. Lastly, Thompson

analyzed the culpability of juveniles as compared to

adults and considered whether application of the death

penalty to juveniles measurably contributed to the

social purposes it was intended to serve. After noting

“broad agreement on the proposition that adolescents

as a class are less mature and responsible than adults”

and “the special mitigating force of youth,” the Court

concluded that “less culpability should attach to a

crime committed by a juvenile.” Id. at 834-35. As to

the social rationales of the death penalty - retribution

and deterrence - it found them unacceptable for 15-

year-old offenders because of the “lesser culpability of

the juvenile offender” and because deterrence would

not be jeopardized if the execution of those under 16

were prohibited. Id. at 836-37.

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In light of all of these factors, Thompson

concluded that a national consensus existed that

execution of persons under 16 at the time of their

crimes constituted cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments.

Id.

2. Stanford v. Kentucky. The following year,

in Stanford, 492 U.S. 361, Justice Scalia stated in the

principal opinion that, by contrast, the Eighth and

Fourteenth Amendments did not prohibit imposition of

the death penalty for crimes committed at age 16 or 17.

Id. at 370-77. In so holding, Justice Scalia agreed that

what constitutes cruel and unusual punishment must

be determined by current standards rather than by

those in effect in 1789. Id. But, he said, current

standards are almost entirely to be determined by

reference to “statutes passed by society’s elected

representatives,” id. at 370, and specifically by state

legislatures. He then noted that, while the majority of

states did not permit the execution of juvenile

offenders, that count included the fourteen states that

then barred capital punishment altogether. Id. at 370

n.2. If one considered only those states permitting

capital punishment, then the majority of that

subgrouping approved the execution of those who were

16 or 17 at the time of their offense. Id. at 370.

And, although Stanford recognized that juries

sentence substantially fewer juveniles than adults to

death, it said this did not provide a reason to prohibit

such death sentences entirely. Id. at 373-74.

Stanford also rejected, as irrelevant, the many state

statutes barring those under 18 years old from

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engaging in various activities, such as voting, drinking,

or driving. Id. at 374-77. Similarly, although a year

earlier Thompson had said the views of social,

professional, and religious groups, as well as the

sentencing practices of other countries, were relevant

to determining current standards of decency, Stanford

stated that the views of national organizations were an

“uncertain foundation” on which to base constitutional

law and that international practices were simply

irrelevant to whether a national consensus existed. Id.

at 369 n.1, 377. After so limiting its inquiry,

Stanford concluded that there was no national

consensus against executing offenders who were 16 or

17 at the time of the offense. Id. at 370-72, 379-80.

B. From Penry to Atkins: Development of

a National Consensus Against

Execution of the Mentally Retarded.

1. Penry v. Lynaugh. The same day that the

Supreme Court held in Stanford that there was no

national consensus against imposition of the death

penalty on juveniles, it held in Penry, 492 U.S. 302, an

opinion authored by Justice O’Connor, that there was

also no national consensus against imposition of the

death penalty on the mentally retarded. Like

Thompson and Stanford, Penry recognized that

what constitutes cruel and unusual punishment is not

a static concept, immutably tied to what punishments

would have been included within the reach of the

Eighth Amendment when the Bill of Rights was

adopted in 1789. Id. at 330. Rather, the “prohibition

against cruel and unusual punishments also recognizes

the ‘evolving standards of decency that mark the

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progress of a maturing society.” Id. at 330-31,

quoting, Trop, 356 U.S. at 101. And, like Stanford,

Penry looked to statutes passed by state legislatures

as the best type of “objective evidence of how our

society views a particular punishment today.” Id. at

331. Penry also said that the Court “looked to the

data concerning the actions of sentencing juries.” Id.

a. Legislative Action. When Penry was decided

in 1989, only Georgia, Maryland, and the federal

government had statutes barring the imposition of the

death penalty on the mentally retarded. Id. at 334.

The Supreme Court concluded that “the two state

statutes prohibiting execution of the mentally

retarded, even when added to the 14 States that have

rejected capital punishment completely, do not provide

sufficient evidence at present of a national consensus.”

Id. (emphasis added).

b. Other Factors. Mr. Penry was unable to

provide evidence that juries chose not to sentence

mentally retarded defendants to death. In addition, on

the record before it, the Supreme Court said it could

not conclude that “all mentally retarded people, by

definition, can never act with the level of culpability

associated with the death penalty.” Id. at 338-39. For

these reasons, the Court determined that “at present,

there is insufficient evidence of a national consensus

against executing mentally retarded people convicted

of capital offenses for us to conclude that it is

categorically prohibited by the Eighth Amendment.”

Id. at 335.

2. Atkins v. Virginia. In 2002, the Supreme

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Court revisited the issue of capital punishment of the

mentally retarded in the case of Daryl Atkins, an

allegedly mentally retarded man whose death sentence

had been affirmed by the Virginia Supreme Court

based on Penry’s determination that there is no

national consensus against the execution of the

mentally retarded. In a principal opinion by Justice

Stevens, the Supreme Court reversed Mr. Atkins’ death

sentence and remanded for a determination of his

mental status. Atkins, 536 U.S. 304. In so holding,

Atkins reaffirmed that whether capital punishment is

barred for certain classes of offenders is necessarily

part of a fluid, rather than a static, process and that as

our standards of decency evolve, so will the

determination of what constitutes cruel and unusual

punishment. Id. at 312.

Atkins’ analysis more closely resembles that in

Thompson than that in Stanford. Atkins: (a) first

looked at the objective evidence of legislative intent

provided by state legislation barring the death penalty.

(b) Like Penry, it considered the frequency with which

the death penalty was imposed- on the mentally

retarded. (c) It then looked to the opinions of national

professional, religious, and social organizations, and

the approach of other countries to the death penalty for

the mentally retarded. (d) Finally, it undertook an

independent examination of whether the imposition of

the death penalty on the mentally retarded constitutes

cruel and unusual punishment under today’s evolving

standards of decency. Id. at 313.

a. Legislative Action. Atkins found that, in the

thirteen years after Penry, fourteen more states -

A AA CLNGOAL bebe As. nt lial ign OP et AIO EM Et I A Ns tt Be Nat

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including Missouri - had adopted legislation barring

the application of their death penalty laws to the

mentally retarded. And, while New York and

Nebraska had each reinstated the death penalty, each

had specifically exempted the mentally retarded from

the reach of those newly enacted statutes. Id. at 314-

15. When these sixteen new states were added to the

two states that had already adopted such legislation in

1989, eighteen states, and the federal government,

then prohibited imposition of the death penalty on the

mentally retarded. See id. In addition, the Court

noted that the Texas legislature had unanimously

adopted a bill barring the execution of the mentally

retarded, but the bill was vetoed by the governor on

other grounds, and that at least one house of the

Virginia and Nevada legislatures had similarly

adopted bills barring the death penalty for the

mentally retarded. Id. at 315.‘

“In footnote 18, Atkins contrasted these substantial legislative

changes with the fact that, since Stanford, “apparently only two

state legislatures have raised the threshold age for imposition of

the death penalty” for juveniles, but did not purport to present

a complete picture of the legislative activity on the juvenile

death penalty since Stanford, an issue not then before it.

Atkins, 536 U.S. at 316 n.18 (citations omitted). As discussed

infra, eleven states and the federal government already barred

the death penalty for juveniles when Stanford was decided, two

have done so since, others are considering doing so, two other

legislatures have enacted statutes that do not permit execution

of those under 18, and the state of Washington has barred

juvenile executions by court decision. It is noteworthy that

twelve additional states and the District of Columbia bar

executions altogether.

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While the number of states barring imposition of

the death penalty had clearly grown impressively, the

Court stated that, “Jt is not so much the number of

these States that is significant, but the consistency of the

direction of change.” Id. (footnote omitted) (emphasis

added). This consistency was further reflected by the

fact that, since Penry, no state had adopted a law

permitting the execution of the mentally retarded. Id.

at 315-16. The Court found such consistency

particularly persuasive given the anticrime

atmosphere of the times:

Given the well-known fact that anticrime

legislation is far more popular than

legislation providing protections for

persons guilty of violent crime, the large

number of States prohibiting the

execution of mentally retarded persons

(and the complete absence of States

passing legislation reinstating the power

to conduct such executions) provides

powerful evidence that today our society

views mentally retarded offenders as

categorically less culpable than the

average criminal.

Id.

b. Frequency of Imposition of Death Penalty.

The Court found that some states, such as New

Hampshire and New Jersey, whose statutes nominally

authorize the execution of mentally retarded persons,

had not carried out executions of any persons in

decades, thus removing the incentive to pass

legislation barring execution of the mentally retarded

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in particular. Id. at 316. And, in those states that

still carried out executions, the Court found, the

practice of executing mentally retarded offenders had

become very uncommon: only five persons who were

known to have an I.Q. of less than 70 had been

executed in the thirteen years since Penry. Id. The

Court concluded that “[t)he practice. . . has become

truly unusual, and it is fair to say that a national

consensus has developed against it.” Id.

c. National and International Opposition to

Death Penalty. Atkins stated that the consensus

against the death penalty for the mentally retarded

was evident not only from the legislation passed over

the prior thirteen years, and the rareness of the

application of the death penalty in those states that

permitted its use, but also from the opposition to the

practice from experts in the field, noting “several

organizations with germane expertise have adopted

official positions opposing the imposition of the death

penalty upon a mentally retarded offender,” including

the American Psychological Association and the

American Association of Mental Retardation. Id. at

$16 n.21. The Court also found the sentiments of this

nation’s religious communities, and of the world

community, to be overwhelmingly opposed to execution

of the mentally retarded. Id. Finally, the Court cited

to polling data that showed “a widespread consensus

among Americans, even those who support the death

penalty, that executing the mentally retarded is

wrong.” Id. While the Court stated that the opposition

of these groups was by no means dispositive, the Court

did find significant their “consistency with the

legislative evidence,” stating that it provided “further

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support to [the Court’s }] conclusion that there is a

consensus among those who have addressed the issue.”

Id.

d. Independent Judicial Determination. Finally,

the Supreme Court undertook an independent

evaluation of whether such executions should be

prohibited. It found that neither the retributive nor

the deterrence justifications for the death penalty

would be furthered by executing the mentally retarded, .

stating, “If the culpability of the average murderer is

insufficient to justify the most extreme sanction

available to the State, the lesser culpability of the

mentally retarded offender surely does not merit that

form of retribution.” Jd. at 319.° It further concluded,

“the same cognitive and behavioral impairments that

make [mentally retarded) defendants less morally

culpable ... also make it less likely that they can

process the information of the possibility of execution

as a penalty and, as a result, control their conduct

based upon that information.” Id. at 320.

The Court further implicitly rejected the

suggestion in Penry that the death penalty could not

be barred if any mentally retarded person might

theoretically deserve it, so that the effect of mental

retardation should instead simply be considered as a

mitigating factor. Id. at 318-19. Rather, it said, the

very fact that persons are mentally retarded not only

*In Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme

Court set aside a death sentence because the petitioner’s crimes

did not reflect “a consciousness materially more ‘depraved’

than that of any person guilty of murder.” Jd. at 433.

aS 4

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makes them more likely to give a false confession, but

also makes them less able to assist their counsel,

typically makes them poor witnesses, and may cause

them to exhibit a demeanor that is unsympathetic and

that may incorrectly imply a lack of remorse. Id. at

320-21. Its independent evaluation led the Court to

conclude that “death is not a suitable punishment for

a mentally retarded criminal.” Id. at 321.

Il. APPLICATION OF THE PRINCIPLES SET

OUT IN ATKINS, THOMPSON, PENRY,

AND STANFORD TO THE EXECUTION OF

JUVENILES TODAY

A. Stanford Does Not Preclude This

Court from Considering Whether a

National Consensus Now Exists

Barring the Death Penalty for

Juveniles.

The state argues, and the dissenting judges

would hold, that whatever the Supreme Court held in

Atkins is irrelevant to the instant case because this

Court is bound by Stanford to hold that there is no

constitutional bar to the execution of persons who were

16 or 17 years of age at the time of their crimes. This

argument ignores the fundamental premise on which

Stanford, as well as Thompson, Penry, and Atkins,

were based: that “this Court has not ‘confined the

prohibition embodied in the Eighth Amendment to

‘barbarous’ methods that were generally outlawed in

the 18” century,’ but instead has interpreted the

Amendment ‘in a flexible and dynamic manner.”

Stanford, 492 U.S. at 369, quoting, Gregg v.

Georgia, 428 U.S. 153, 171 (1976). Court should be

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guided by the conceptions of decency of “modern

American society as a whole.” Id. (footnote omitted).

Atkins recently reaffirmed that decisions as to

standards of decency are to be decided by current

standards, not ones of years ago. Atkins, 536 U.S. at

312. And, that is just what the issue before this Court

requires us to do: determine whether the evolving

national consensus bars the imposition of the death

penalty on juveniles today, even though it did not bar

it fourteen years ago. To say that this determination

must be made based on the state of the law and

standards that existed when Stanford was decided in

1989, and that to do otherwise is to overrule Stanford,

is simply incorrect. This Court clearly has the

authority and the obligation to determine the case

before it based on current - 2003 - standards of

decency. See Patterson v. Texas, 536 U.S. 984, 985,

123 S.Ct. 24, 24 (2002) (Ginsburg, J. dissenting from

denial of petition for writ) (“This Court’s decision in

Atkins v. Virginia 536 U.S. 304 (2002), made it tenable

for a petitioner to urge reconsideration of Stanford v.

Kentucky, 492 U.S. 361 (1989)... .”); In Re Stanford,

537 U.S. __, 123 S.Ct. 472 (2002) (Stevens, J.

dissenting from denial of petition for writ) (Court

should reconsider Stanford in light of Atkins because

“even if we were not convinced in 1989 [that juveniles

should not be subject to the death penalty] we should

be all the more convinced today” because of the

additional states barring such executions and because -

of the growth in scientific knowledge of the less than

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fully developed nature of the adolescent brain.).°

B. A National Consensus Against the

Juvenile Death Penalty.

As the discussion of Thompson, Stanford,

Penry, and Atkins makes evident, many of the same

principles and factors that have guided the Supreme

Court’s determination of the constitutionality of the

death penalty for the mentally retarded have also

guided the Supreme Court’s determination of the

constitutionality of the death penalty for juveniles.

This Court therefore will use Atkins’ approach in

addressing whether a national consensus has

developed against the juvenile death penalty since

Stanford, \ooking at: (1) the extent of legislative

action against or in favor of the juvenile death penalty;

*The dissent’s suggestions that this Court should infer that the

Supreme Court would not apply the Atkins principles to the

juvenile execution context because the Supreme Court has

denied petitions for writs in Patterson, Stanford, and similar

cases involving juveniles itself ignores the fact that the Supreme

Court “has rigorously insisted that such a denial carries no

implication whatever regarding the Court’s views on the merits

of the case which it has declined to review. The Court has said

this again and again; again and again the admonition has to be

repeated.” Maryland v. Baltimore Radio Show, 338 U.S. 912,

919 (1950); see also Teague v. Lane, 489 U.S. 288, 296 (1989)

(because a variety of considerations underlie the denial of a

writ, such denials should be accorded no precedential value).

Cf. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 61 (Mo.

banc 1999) (denial of petition for writ is not a conclusive

decision on the merits of the issue presented).

A-22

(2) the frequency of the imposition of the death penalty

on juveniles in modern times, and the frequency with

which it is carried out even when imposed; (3) national

and international opinion on the juvenile death

penalty; and (4) an independent examination of

whether the death penalty for juveniles violates

evolving standards of decency and so is barred by the

Eighth and Fourteenth Amendments.

1. Legislative Action Has Consistently Been

Against the Juvenile Death Penalty. At the time

that Penry was decided in 1989, only two states had

outlawed executing the mentally retarded, and the

Supreme Court found that this was not sufficient to

constitute a national consensus. In deciding that

developments of the intervening years between Penry

and Atkins demonstrated that a national consensus

had developed against executing the mentally

retarded, Atkins relied heavily on the fact that sixteen

more state legislatures had barred execution of the

mentally retarded, while no additional states had

permitted it. It found this persuasive not principally

because of the number of states that had passed such

laws, but because of the consistency of the changes in

the direction of opposition to the death penalty for the

mentally retarded.

That same consistency of change has been

shown in opposition to the juvenile death penalty.

Indeed, the change was in the process of occurring

when Stanford was decided. At the time of Stanford,

eleven states barred the juvenile death penalty. This

was substantial, but not yet enough to constitute a

national consensus.

A-23

Since Stanford, however, and despite what

Atkins called the popularity of “law and order”

legislation, five more states have banned the practice

of executing juvenile offenders. Two have done so by

adopting legislation raising the age of execution to 18,”

and two have done so by newly reinstating the death

penalty, but only for those offenders who were 18 or

older at the time of their offense.* The Washington

Supreme Court has also held that its death penalty

statute cannot be construed to authorize imposition of

the death penalty for crimes committed by juvenile

offenders,° thereby adding the state of Washington to

the hist of states in which the practice is now

prohibited. Thus, a total of sixteen states - to which

should be added federal civilian and military courts -

require a minimum age of 18 for imposition of the

death penalty, only two fewer than the eighteen states

Atkins identified as prohibiting execution of the

mentally retarded.” If the twelve states and the

Indiana (S. 426, 112" Leg., Re

. .. Reg. Sess., 2002 In. Laws) and

Montana (H.B. 374, 1999 Leg., Reg. Sess., 1999 Mt. omen

8 .

Kansas (Kan. Crime. Code Ann. sec. 21-46622 (Vernon 2001 ))

and New York (N.Y. Crim. Proc. La

sao. | w sec. 400.27 (McKinney

"See State of Washington v. Furman, 858

(Ww . ,» 858 P.2d

ash. 1993). 1092, 1102-03

While, as noted in footnote 18 of Atkins, this means there

were many fewer states that raised their minimum age of

execution to 18 after Stanford than there were states that barred

the death penalty for the mentally retarded after Penry, this in

part reflects the fact that eleven states had already acted to bar

A-24

District of Columbia that bar the death penalty

entirely are added, the combined total is twenty-eight

states that prohibit juvenile executions - two fewer

than the thirty states that prohibited execution of the

mentally retarded at the time Atkins was decided.

Moreover, as is the case with the mentally

retarded, the change has consistently been in the same

direction. No state since Stanford has lowered the

age for execution from 18 to 17 or 16, although

Stanford allowed states to do so.’ Rather, the

minimum age has either stayed the same or been

raised, and the only two states to reinstate the death

penalty since 1989 did so only for those 18 or older. In

addition, many states, including Missouri, have

recently considered legislation to raise the minimum

age for executions to 17 or 18. Streib, supra., at 7.

This accounts for the most legislative attention to the

issue in twenty years. Id. In 2000, a bill to abolish the

death penalty in New Hampshire passed both houses

the juvenile death penalty before Stanford was even decided.

It would be the ultimate in irony if the very fact that the

inappropriateness of the death penalty for juveniles was broadly

recognized sooner than it was recognized for the mentally

retarded were to become a reason to continue the execution of

juveniles now that the execution of the mentally retarded has

been barred.

"Victor L. Streib, The Juvenile Death Penalty Today: Death

Sentences and Executions for Juvenile Crimes, January |, 1973-

June 30, 2003, at 7, available at

http://www.law.onu.edw/faculty/streib/juvdeath (last modified

July 1, 2003).

A-25

of the state legislature, but was vetoed. !

2. Infrequency of Imposition of Death

Penalty. In Atkins, the Supreme Court » found

persuasive the fact that execution of the mentally

retarded had become truly unusual. Many states that

nominally had the death penalty on their books no

longer imposed it at all or had never imposed it on a

mentally retarded person, and only a total of five

persons known to be mentally retarded had been

executed in the United

States in the thirteen years following the Court’s

decision in Penry. Atkins, 536 U.S. at 316.

The practice of executing those under 18 has

become similarly uncommon today. Although twenty-

two states theoretically permit the death penalty for

juveniles, only six (Missouri, Texas, Virginia, Georgia,

Oklahoma, and Louisiana) have actually executed a

juvenile offender since Stanford was decided fourteen

years ago. Streib, supra, at 3-4. Of these six states,

only three have executed juvenile offenders since 1993

- Texas, Virginia, and Oklahoma. Id. at 4. Louisiana

last executed a juvenile offender in 1990; Georgia in

1993. Id. at 3. Missouri executed Frederick Lashley

in 1993. That is the only officially recorded execution

of a juvenile offender in Missouri since the state took

over executions from Missouri’s counties in 1937."

HB 1548 (N.H. 2000).

‘ According to one authority, the only other juvenile execution

in Missoun occurred in 1921. American Bar Association, Cruel

and Unusual Punishment: The Juvenile Death Penalty, Spring

A-26

Perhaps most telling is that, while at least 366

juvenile offenders have been executed in this country

since 1642 (when the first juvenile offender execution

occurred), only twenty-two of the 366 were carried out

during the current era (1973-2003). Id. Of these

twenty-two executions, Texas, Virginia, and Oklahoma

together account for eighty-one percent of the juvenile

executions. Jd. at 5. Although Alabama, Arizona,

Arkansas, Delaware, Idaho, Kentucky, Mississippi,

Nevada, Pennsylvania, South Dakota, Utah, and

Wyoming all theoretically permit the death penalty for

16-year-olds, and while Florida, New Hampshire, and

North Carolina theoretically permit it for 17-year-olds,

none of these states has executed a juvenile since the

death penalty was re-established in 1976. Id. at 3-4,

6. All but South Dakota and New Hampshire,

however, have executed other offenders during that

period.’* Indeed, even where juries have imposed a

death sentence on a juvenile since the reinstatement of

the death penalty in 1976, its application has

consistently been reversed by the courts on a variety of

grounds, making South Carolina the only other state

(other than Texas, Louisiana, Missouri, Georgia,

Virginia, and Oklahoma) to carry out a juvenile

2003, at 2, available at http://www.abanet.org/crimjust/juvjus/-

factsheets_evolving_standards.pdf (last visited Aug. 1, 2003).

'“These and other statistics about executions are collected by the

Death Penalty Information Center and can be found at

www.deathpenaltyinfo.org. See also statistics collected at

http://www.asc41.com/policypaper2.html by the American

Society of Criminology.

A-27

execution since 1976. Id. at 3. As the chart attached

as Appendix A graphically demonstrates, more

mentally retarded persons than juveniles have been

executed, in more states, since the death penalty was

reinstated in 1976. |

As Atkins noted in regard to the mentally

retarded, in light of the small number of executions of

juvenile offenders carried out in the last decade,

legislatures in states with a juvenile death penalty

may have seen little reason to pass legislation barring

it. Juveniles are so seldom executed that, other than

perhaps in Texas and Virginia, the death penalty for

juveniles has become so truly unusual that its

potential application is more hypothetical than real.

But, the likelihood of such an execution is not

hypothetical in Missouri today. The state argues that

Missouri should become the only state other than

Texas, Virginia, and now Oklahoma to carry out more

than one juvenile execution since the reinstatement of

the death penalty in 1976.

3. National and International Consensus.

Opposition to the juvenile death penalty by

professional, social, and religious organizations has

been longstanding. At the time Stanford was decided,

a large number of groups, including the ABA, child

advocacy groups, psychiatric organizations, and church

"ABA Juvenile Justice Center, Comparison: Executions of

Juveniles and Mentally Retarded Persons by State Since 1976

(Feb. 20, 2003), at

http://www.abanet.org/crimnjust/juvjus/juvandmr.pdf.

A-28

and religious groups filed amicus briefs urging an end

to such executions.’® Since Stanford, additional

organizations of professionals have also called for an

end to the death penalty, including: The American

Psychiatric Association, The American Academy of

Child and Adolescent Psychiatry, The National Mental

Health Association, The National Center for Youth

Law, The Coalition for Juvenile Justice, The American

'6Stanford cited the following list of organizations, all of which

filed briefs amicus curiae in support of the petitioners in

Stanford: American Bar Association; Child Welfare League of

America; National Parents and Teachers Association; National

Council on Crime and Delinquency; Children’s Defense Fund;

National Association of Social Workers; National Black Child

Development Institute; National Network of Runaway and

Youth Services; National Youth Advocate Program; and

American Youth Work Center; American Society for

Adolescent Psychiatry and American Orthopsychiatric

Association; Defense for Children International - USA;

National Legal Aid and Defender Association; and National

Association of Criminal Defense Lawyers; Office of Capital

Collateral Representative for the State of Florida; International

Human Rights Law Group; American Baptist Churches;

American Friends Service Committee; American Jewish

Committee; American Jewish Congress; Christian Church

(Disciples of Christ), Mennonite Central Committee; General

Conference Mennonite Church; National Council of Churches;

General Assembly of the Presbyterian Church; Southern

Christian Leadership Conference; Union of American Hebrew

Congregations; United Church of Christ Commission for Racial

Justice; United Methodist Church General Board of Church and

Society; and United States Catholic Conference; West Virginia

Council of Churches; and Amnesty International. Stanford,

492 U.S. at 388 n.4 (Brennan, J. dissenting).

A-29

Humane Association, and The Constitutional Project (a

bipartisan nonprofit organization that seeks consensus

on controversial legal and constitutional issues).

Additional groups of faith also have issued

statements in opposition to the death penalty,

including: American Baptist Churches in the USA,

American Ethical Union, American Friends Service

Committee, American Jewish Committee, Amnesty

International, The Bruderhof Communities, Central

Conference of America, Christian Church (Disciples of

Christ), Church of the Brethren, Church Women

United, The Episcopal Church, Evangelical Lutheran

Church in America, Fellowship of Reconciliation,

Friends Committee on National Legislation, Friends

United Meeting, General Conference of General

Baptists, General Conference Mennonite Church, The

Mennonite Church, The Moravian Church in America,

YMCA of the USA, Mormans for Equality and Social

Justice, The Orthodox Church in America, National

Council of the Churches of Christ, Presbyterian Church

(USA), The Rabbinical Assembly, Reorganized Church

of Jesus Christ of Latter Day Saints, Reformed Church

in America, Unitarian Universalist Association, Union

of American Hebrew Congregations, United Methodist

Church, United Church of Christ, and United States

Catholic Conference.’ A recent poll found that only

thirty-four percent of Missourians support the death

"These groups have set out their views on a web site that can be

found at www.deathpenalty religious.org/education.

A-30

penalty for juveniles.”°

While Stanford found the opposition of social,

professional, and religious groups to . be of little

importance, the Court’s more recent decision in Atkins

clearly demonstrated a shift back to reliance on such

evidence to confirm the national consensus that

evolving standards of decency proscribe imposition of

the death penalty on the mentally retarded. Atkins,

536 U.S. at 316 n.21.

Similarly, here, although by no means

dispositive, we find the opposition to the juvenile death

penalty of the wide array of groups within the United

States listed above to be consistent with the legislative

and other evidence that current standards of decency

do not permit the imposition of the death penalty on

juveniles. We also find of note that the views of the

international community have consistently grown in

opposition to the death penalty for juveniles. Article

37(a) of the United Nations Convention on the Rights

of the Child and several other international treaties

and agreements expressly prohibit the practice.

Streib, supra, at 7. According to Amnesty

International, officially sanctioned executions of

juveniles have occurred in only two other countries in

the world in the last few years, Iran and The Republic

of the Congo (DRC). Amnesty International,

Juveniles: The Death Penalty Gives up on

‘Juvenile Offender Public Opinion Survey, Center for

Advanced Social Research, University of Missouri-Columbia

(Mar. 2003), available at http://www.abanet.org/cnm-

just/juvjus/mopoll.pdf.

A-31

Juvenile Offenders (July 28, 2003), at

http//www.amnestyusa.org/abolish/juveniles. Of

the last seven juvenile offender executions, five

occurred in the United States. Streib, supra, at 7.

4. Independent Examination of Death

Penalty. Atkins also undertook an independent

analysis of whether the death penalty was warranted

for mentally retarded offenders by examining whether

the social purposes intended to be served by the death

penalty, retribution and deterrence, applied to

mentally retarded offenders. Atkins, 536 U.S. at 318-

19. The Supreme Court found that neither purpose

would be furthered by executing the mentally retarded,

as such individuals are inherently less culpable than

other actors and less able to deliberate about their

actions and, thus, are less able to be deterred by

awareness that their crime could result in death. Id.

at 319-21. Further, Atkins found that it was

necessary to categorically exclude the mentally

retarded from execution, rather than allowing their

mental capacity to be considered on a case-by-case

basis, because their reduced mental capacity would

increase the possibility of false confessions and reduce

their ability to show mitigation or assist counsel, so

that “[mJentally retarded defendants in the aggregate

face a special risk of wrongful execution.” Id. at 321.

Lastly, it concluded: “As Penry demonstrated .. .

reliance on mental retardation as a migrating factor

can be a two-edged sword that may enhance the

likelihood that the aggravating factor of future

dangerousness will be found by the jury.” Id.

Similarly, as tojuveniles, neither retribution nor

A-32

deterrence provides an effective rationale for the

imposition of the juvenile death penalty, and the risk

of wrongful execution of juveniles is enhanced for

reasons similar to that set out in Atkins in regard to

the mentally retarded. While the parties have cited

this Court to numerous current studies and scientific

articles about the structure of the human mind, the

continuing growth of those portions of the mind that

control maturity and decision-making during

adolescence and young adulthood, and the lesser

ability of teenagers to reason, this Court need not look

so far afield. The Supreme Court recognized the lesser

culpability and developing nature of the adolescent

mind in its 1988 decision in Thompson, 487 U.S. at

835, in which it stated, “there is also broad agreement

on the proposition that adolescents as a class are less

mature and responsible than adults,” id, at 834, and

therefore “less culpability should attach to a crime

committed by a juvenile than to a comparable crime

committed by an adult.” Id. at 835. Thompson noted

that it was not the first time that the Court had been

called upon to recognize the lesser culpability of the

young, for in Eddings v. Oklahoma, 455 U.S. 104,

115-16 (1982):

A-33

that minors, especially in their earlier

years, generally are less mature and

responsible than adults. Particularly

‘during the formative years of childhood

and adolescence, minors often lack the

experience, perspective, and judgment’

expected of adults... .”

Thompson, 487 U.S. at 834. Thompson then stated:

Thus, the Court has already endorsed the

proposition that less culpability should

attach to a crime committed by a juvenile

than to a comparable crime committed by

an adult. The basis for this conclusion is

too obvious to require extended

explanation. Inexperience, less

education, and less intelligence make the

teenager less able to evaluate the

consequences of his or her conduct while

at the same time he or she is much more

apt to be motivated by mere emotion or

peer pressure than is an adult.

We stressed this difference in explaining

the importance of treating the

defendant’s youth as a mitigating factor

in capital cases: “But youth is more than

a chronological fact. It is a time and

condition of life when a person may be

most susceptible to influence and to

psychological damage. Our history is

replete with laws and judicial recognition

Id. at 835 (footnotes omitted). Thompson concluded,

“The reasons why juveniles are not trusted with the

privileges and responsibilities of an adult also explain

why their irresponsible conduct is not as morally

reprehensible as that of an adult.” Id. Although Mr.

Simmons is 17 rather than 15, he is still an adolescent,

and this Court finds the rationales set forth in

A-34

Thompson and Eddings apply here.”®

Similarly, the deterrence function of the death

penalty can have little application to juveniles, not just

because of their lesser ability to reason and their lack

of informed judgment, but because, as discussed supra,

the imposition of the death penalty on 16-year-olds and

17-year-olds has become so unusual in the last decade

_ that “the likelihood that the teenage offender has made

the kind of cost-benefit analysis that attaches any

weight to the possibility of execution is so remote as to

be virtually non-existent.” Thompson, 487 U.S. at

837 (discussing effect of infrequency of executions of

those 15 and younger).

Finally, as Mr. Simmons notes, the risk of

wrongful execution also is greater as to younger

offenders, who have had less time to develop ties to the

community, less time to perform mitigating good

works, and less time to develop a stable work history,

than is true of adult offenders, and who are far more

likely than adults to waive their rights and to give

false confessions. Moreover, although nominally under

Missouri law defendants are permitted to use their

youth as a mitigating factor, this case provides a

graphic illustration of the fact that their youth can

become a further argument against them. In closing

argument in Mr. Simmons’ case, the state argued that

the jury should not let him use his age to protect

himself because if it did so, then he “wins.” The state

'*Stanford did not find these rationales inapplicable to those 16

or 17 at the time of their crime, but instead found these issues

irrelevant.

A-35

then argued, “Think about age. Seventeen years old.

Isn’t that scary. Doesn’t that scare you? Mitigating?

Quite the contrary I submit. Quite the contrary.”

Thus, Mr. Simmons’ youth was used to suggest greater

immorality and future dangerousness and so to provide

a further reason to impose the death penalty.

For these reasons, this Court concludes that the

Supreme Court of the United States would hold that

the execution of persons for crimes committed when

they were under 18 years of age violated the “evolving

standards of decency that mark the progress of a

maturing society,” and is prohibited by the Eighth

Amendment to the United States Constitution as

applied to the states through the Fourteenth

Amendment.”

IV. CONCLUSION

For the reasons set out above, this Court sets

aside Mr. Simmons’ death sentence and re-sentences

him, pursuant to the Court’s authority under Sec.

565.035 RSMo 2000, to life imprisonment without

eligibility for probation, parole, or release except by act

of the Governor.

Laura Denvir Stith, Judge

Because the Eighth and Fourteenth Amendments afford Mr.

Simmons relief, this Court need not reach Mr. Simmons

alternative argument that, even if his execution is not barred by

the Eighth Amendment, it is barred by article 1, section 21 of

the Missouri Constitution.

A-36

White, C.J., Wolff and Teitelman, JJ., concur;

Wolff, J., also files separate concurring opinion;

Price, J., dissents in separate opinion filed; Benton

and Limbaugh, JJ., concur in opinion of Price, J.

A-37

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A-38

SUPREME COURT OF MISSOURI

en banc

State ex rel. Christopher

Simmons,

Petitioner,

vs. No. SC84454

)

)

)

)

)

)

)

Donald P. Roper, )

Superintendent, Potosi )

Correctional Center,

)

Respondent.

CONCURRING OPINION

I concur in the principal opinion and in its

holding that the Eighth Amendment’s prohibition of

cruel and unusual punishments bars the execution of

those who were younger than 18 when their crimes

were committed.

Both the principal opinion and the dissent strive

earnestly to follow relevant precedent of the United

States Supreme Court - whether that be the line of

reasoning in Atkins v. Virginia, 536 U.S. 304 (2002), or

the result in Stanford v. Kentucky, 492 U.S. 361 (1989).

That Court’s views may be as divided as this Court's.

The underlying premise of both views is that the

constitution forbids the execution of a person who, at

the time of the crime, was not fully capable of the kind

A-39

of adult moral judgment that would hold the offender

subject to the death penalty for his crime.

The use of chronological age in making these

judgments - as the Court did in Stanford and in

Thompson v. Oklahoma, 487 U.S. 815 (1988) - invites

the drawing of a bright line as to the age at which a

murder defendant may be subject to the death penalty.

The legislature has drawn the line for eligibility

for the death penalty at age 15. Section 565.020.2.'

The age-15 standard is consistent with Thompson v.

Oklahoma, which held that a child who committed a

crime when he was 15 or younger cannot receive the

death penalty because of the Eighth Amendment’s

proscription of cruel and unusual punishments. Citing

evolving standard, the principal opinion here holds

that the line is now drawn at age 18.’

‘All references are to RSMo 2000 unless otherwise indicated.

Section 565.020.2 provides that the death penalty may not be

applied where the defendant “has not reached his sixteenth

birthday at the time of the commission of the crime.”

*In Brennan v. State, 754 So.2d | (Fla. 1999), where the Florida

Supreme Court held that 16-year-old defendants may not be

subjected to the death penalty, Judge Anstead, specially

concurring, wrote, “[s]omeone must draw these important lines,

and in our unique framework of sharing governmental powers,

this function of constitutional line-drawing has been assigned

to the judicial branch.” /d. at 12 n.15 (citing Thompson v. Ok.,

487 U.S. 815, 840 (1988)). Judge Anstead was aware of the

arbitrariness that could result from such line drawing:

“Inevitably, there will be cases where one day’s difference in

A-40

What is the nature of this judicial or legislative

judgment? When any given age is used, it reflects a

judgment that those below that age cannot be fully

responsible in terms of being subject to the death

penalty. The line is drawn because of the judgment

that most if not all persons of such a youthful age are

not morally capable of being fully responsible for their

acts. This is true even though a child less than 18 may

be tried as an adult, found guilty, and receive an adult

non-capital sentence. See section 211.071.

The legislature traditionally has drawn lines by

chronological age based on assumptions or experience

as to maturity.* There is some judicial authority for

deferring to the legislature in this regard even as to

capital punishment of those of a certain age, see

Thompson v. Oklahoma, 487 U.S. at 854 (1988)

(O’Connor, J., concurring) (“I would not substitute our

inevitably subjective judgment abut the best age at

which to draw a line in the capital punishment context

for the judgments of the Nation’s legislatures.”). The

Thompson decision itself, however, stands for the

proposition that line drawing in capital cases is a

age will be the determinative factor between life and death.” /d.

>See section 311.325 (setting the minimum drinking age at 21);

section 1 15.133 (setting the minimum voting age at 18); section

431.061 (consent to surgical or medical treatment); section

431.056 (minors’ capacity to enter into contracts); section

451.090 (minors’ capacity to enter into marriage contract);

section 302.060 (age one can obtain a driving license); section

474.310 (must be 18 to make a will); and section 494.425 (must

be 21 to serve on a jury).

A-4]

prerogative of the judiciary in its role of safeguarding

Eighth Amendment rights.

Judges have long drawn lines by chronological

age. The common law - judge-made law - has had a

rich, if somewhat checkered history of recognizing age

categories when it comes to criminal responsibility.

Under the common law, a child who reached the age of

14 was fully responsible for crimes as an adult. Under

the age of seven the common law determined that a

person had no criminal capacity. Between the ages of

seven and 14, there was a rebuttable presumption that

the child lacked capacity to be criminally responsible

for the child’s acts. The common law placed the burden

on the prosecution to rebut the presumption of

incapacity. ROLLIN M. PERKINS, CRIMINAL LAW 837 (2d

ed. 1969).

The common law, as Perkins has noted, has

some grim examples: In the 13 century, a seven-year-

old boy was tried for murder; his execution was

“pardoned for the king’s sake.” Jd. at 838. English

records also show that a 13-year-old girl was executed

for killing her mistress, a 10-year-old boy was executed

for killing a companion, and an eight-year-old boy was

similarly punished for “maliciously” burning some

barns. Jd. Perkins also notes that American records

show the execution of two 12-year-old boys for murder.

Id. The standards of decency, cited by the United

States Supreme Court and by the principle opinion in

this case, seem certainly to have evolved. Atkins v.

Virginia, 536 U.S. 304 (2002). But evolved how far?

Missouri’s death penalty statue states that the

A-42

jury, in determining whether or not to recommend the

death penalty, can consider “age,” but without

elaborating how age is to be considered. Section

565.032.3(7). Despite the lack of elaboration in the

statute, the jury is instructed to consider age as a

mitigating factor. In this case, in the penalty phase

final argument, the defense and the prosecution used

Simmons’ age in their arguments. In mitigation, the

defense talked about 17-year-olds and their inability to

think about the future, and about the fact that a

person of 17 cannot vote or lawfully drink alcohol, but

can be subject to the death penalty. The prosecutor

used Simmons’ age to argue that he should be put to

death. The prosecutor’s argument was: “Think about

age. Seventeen years old. Isn’t that scary? Doesn't

that scare you? Mitigating? Quite the contrary I

submit. Quite the contrary.” The prosecutor seems to

have implied that if Simmons was this bad at 17, he

could only get worse.

The principal opinion draws a bright line based

on the Eighth Amendment’s prohibition of cruel and

unusual punishments. However, if the Supreme Court

of the United States does not agree with this Court’s

conclusion that the standard of decency has evolved to

that point, the issue is certainly appropriate for a

factual determination on a case-by-case basis. In that

event, this Court may wish to take a cue from the

statute’s reference to age and borrow the

“presumption” concept from the common law.

An updated version would be: A 16 or 17-year-

old is presumed not to have the capacity to be fully

responsible and, therefore, eligible for the death

A-43

penalty. In the penalty phase, the state could present

evidence of the youthful defendant’s full capacity, with

the defense entitled to present evidence that the

defendant was not fully responsible at the time of the

crime so as to be eligible for the death penalty.‘ The

state would have the burden of overcoming the

presumption. The issue of responsibility, in the sense

of eligibility for the death penalty, would become the

subject of a jury finding, rather than a line drawn by

the Court.

Using age as a bright line in juvenile death

penalty cases involving 16 and 17 year-olds may be

considered unreliable because age, standing alone, is

not the true relevant factor as to why it is arguably

unjust to impose the death penalty. “Rather, age is

simply a ‘proxy’ for a combination of factors such as

maturity, judgment, responsibility, and the capability

to assess the possible consequences of one’s conduct.”

‘Courts often make decisions regarding the capacity of

juveniles. For example, in certifying a juvenile to be tried as an

adult, the youth’s age, maturity and sophistication are

considered. State v. Thomas, 70 S.W.3d 496, 501 (Mo. App.

2002); section 211.071.6. In Thomas, to evaluate whether the

defendant, who was 16 at the time of the crime, should be tried -

as an adult, the chief juvenile officer prepared a report

providing that the defendant “‘appears to be of low average

intelligence, responsive, . . . mature . . . appears to know the

difference between right and wrong . . . appears to be

sophisticated in his manner of living in that he makes his own

decision.” Jd. To determine whether the defendant’s capacity

warrants the death penalty, evaluations similar to that

performed for certification could be used.

A-44

Joseph L. Hoffmann, “On the Perils of Line Drawing:

Juveniles and the Death Penalty,” 40 HASTINGS L.J.

229, 258 (1989). Because age does not correspond

perfectly to the combination of relevant factors, its use

as a bright line produces “comparative injustice” - that

is, some may be spared who are fully capable of

receiving the death penalty and others executed who

should have been found incapable.

The alternative is the adoption of presumptions

with respect to the age of the murderer in capital

cases.° In acase such as this one, where the defendant

was a 17-year-old murderer, the Court could hold that

persons below_the age of 18 are presumed to lack

sufficient maturity to be eligible for the death penalty.

This presumption would be subject to rebuttal by the

state, in which case the unusually mature 17-year-old

murderer could receive the death penalty. Proof of

‘The dissenters in Thompson v. Oklahoma also may well have

been open to individualized consideration when deciding

whether to subject juvenile offenders to the death penalty.

Justice Scalia wrote at the beginning of his dissenting opinion

that, “[i}f the issue before us today were whether an automatic

death penalty for conviction of certain crimes could be extended

to individuals younger than 16 when they commit the crimes,

thereby preventing individualized consideration of their

maturity and moral responsibility, | would accept the plurality s

conclusion that such a practice is opposed by national

consensus . . . . | might even agree with the plurality’s

conclusion if the question were whether a person under 16

when he commits a crime can be deprived of the benefit of a

rebuttable presumption that he is not mature and responsible

enough to be punished as an adult.” 487 U.S. 815, 859.

A-45

such capacity should be beyond a reasonable doubt.®

Individualized treatment in juvenile death

penalty cases would preserve the capital sentencing

option while eliminating or diminishing the

comparative injustice problem associated with line-

drawing governed solely according to a defendant’s age.

If the Supreme Court of the United States does

not agree that age 18 is where the line now should be

drawn, the presumption suggested here should be

adopted. This would not be based on the Eighth

Amendment’s ban on cruel and unusual punishments,

but rather a state-law interpretation of the statute that

makes “age” a factor in capital sentencing.’

“It can be argued that the statutory line that bars execution of

ofienders who were under age 16 at the time of their offenses

contains a presumption that those age 16 and above are eligible

for the death penalty. The statutory reference to age, and the

jury instruction that age be considered a mitigating factor,

would place the burden on the young offender to rebut the

Statute’s supposed presumption. However, establishing

presumptions and burdens is traditionally a judicial function,

though not exclusively so. In cases involving the death penalty,

the judiciary’s prerogative to establish presumptions and to

assign the burdens of overcoming presumptions is a necessary

part of the courts’ duty to ensure that the death penalty is not

wrongly imposed.

‘Come to that, the presumption logically could be applied to

those under 21. That is, after all, the age at which the

legislature deems a person to be mature enough to pass

judgment as a juror. Section 494.425. But see, Stanford v.

A-46

Requiring a specific jury finding on the youthful

murderer’s capacity would be consistent with this

Court’s over-all duty to ensure that a person lacking

full capacity at the time of the crime not be subject to

the death penalty.*

Kentucky, 492 U.S. at 374-377. However, the presumption

against the death penalty seems better suited for those ages 16

and 17 than for those over age 18. The justification for the

presumption is that the death penalty is not appropriate for most

persons of a certain age and, thus, the state should have the

burden of showing that the less probable case - that the

particular offender is mature enough to be subject to the death

penalty - is true. If most but not all of those over age 18 are

suitable for the death penalty, then a defendant may

appropriately have the burden of showing that, in his case, age

is a sufficiently mitigating circumstance to avoid the death

penalty.

* Another statutory basis for holding persons under the age of 18

ineligible for the death penalty may be found in the duty of ths

Court to ensure proportionality under section 565.035.3(3)

RSMo. 2000. This section requires this Court to determine

whether “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.”

(emphasis added) As the principle opinion’s historical analysis

demonstrates, in the last decade the death penalty has rarely

been imposed on persons under the age of 18. If the sentence

of death for a murderer who is less than 18 years old is

compared to other sentences of murderers who were the same

age, the likelihood of an under-18 murderer receiving the death

penalty approaches the likelihood of being struck by lightning

The death penalty for under-18 offenders would appear to be

disproportionate

A-47

This alternative should be used only if the

Eighth Amendment’s prohibition of cruel and btn:

punishments is held not to bar execution of those who

were younger than 18 when they committed their

crimes. Because I believe the constitution does bar

such executions, I concur in the principal opinion.

Michael A. Wolff, Judge

A-48 A-49

SSOURI Although this statute is subject to serious controversy,

SUPREME COURT OF MI it is the enacted will of the people of Missouri and must

= be enforced unless it is in violation of either the

Missouri or United States Constitutions.

STATE ex rel. ) The majority opinion of this Court holds that

CHRISTOPHER SIMMONS, ) section 565.020.2 violates the United States

) Constitution. This opinion is directly in conflict with

Petitioner, ) the United States Supreme Court decision of Stanford

) v. Kentucky, 492 U.S. 361 (1989), consolidated with

vs. a SC84454 Wilkens v. Missouri, No. 87-6026, which specifically

states:

DONALD P. ROPER, )

Superintendent, ) We discern neither a historical nor

Potosi Correctional Center, ) a modern societal consensus forbidding

) the imposition of capital-punishment on

Respondent. ) any person who murders at 16 or 17 years

of age. Accordingly, we conclude that

DISSENTING OPINION such punishment does not offend the

Eighth Amendment's prohibition against

1. cruel and unusual punishment.

I respectfully dissent. The judgments of the Supreme

Our constitutional form of government allows for — = enon wll + vl me

the will of the people to be expressed, for better or Missouri affirm

worse, through the laws enacted by their elected 492. U.S. at 380.

representatives. The role of the courts is merely to

interpret such statutes and to rule upon thelr The United States Supreme Court has not

constitutionality, if necessary. overruled Stanford, even in light of its decision in

565.020.2. RSMo Atkins v. Virginia, 122 S.Ct. 2242 (2002), nor after

Missouri has enacted section 565.020.2, , recent consideration of the precise arguments relied

providing that a =" ° ee upon by the majority of this Court, see Mullin v. Hain,

knowingly cause the death 0

538 U.S. __, 123 S.Ct. 1645 (2003) (mem.) (order

deliberation may be subjected to the death penalty.

A-50

granting application to vacate the stay of execution of

defendant who was seventeen years old when he

committed murder); In re Stanford, 537 U.S. __, 123

S.Ct. 472 (2002) (denying writ of habeas corpus of

petitioner who was seventeen years when he

committed murder); Patterson v. Texas, 536 U.S. __,

123 S.Ct. 24 (2002) (denying writ of habeas corpus of

petitioner who was seventeen years old when he

committed murder). It is the United States Supreme

Court’s prerogative, and its alone, to overrule one of its

decisions. United States v. Hatter, 532 U.S. 557, 567

(2001); Hohn v. United States, 524 U.S. 236, 252-53

(1998); State Oil Co. v. Kahn, 522 US. 3, 20 (1997);

Rodriquez de Quinas v. Shearson/American Express,

Inc., 490 U.S. 477, 484 (1989).

This Court is bound by the United States

Supreme Court’s decision in Stanford v. Kentucky and

simply has no authority to overrule that decision.

II.

Petitioner, Christopher Simmons, was born on

April 26, 1976. On September 10, 1993, when he was

approximately seventeen-years and five-months old,

petitioner was arrested for the murder of Shirley

Crook. Following a botched robbery attempt,

petitioner kidnapped Ms. Crook, bound and gagged

her. Petitioner walked Ms. Crook down a railroad

trestle, bound her more, and pushed her, while still

alive, over the trestle and into the Meramec River.

Prior to the robbery, petitioner stated to his accomplice

that they could commit a robbery and murder and get

away with it because they were juveniles.

A-51

Petitioner now asks this court for habe

relief, alleging that his death sentence is illegal

because he was a juvenile at the time of his crime.

Petitioner acknowledges that Stanford v. Kentucky

492 U.S. 361 (1989), explicitly held that the United

States Constitution was not violated by the execution

of a sixteen or seventeen-year-old defendant. However

petitioner alleges that the United States Supreme

Court’s recent decision, Atkins v. Virginia, 122 S.Ct.

2242 (2002), “implicitly overrules the controlling

precedent of Stanford ....” (emphasis added).

. Stanford specifically addressed Missouri’s

capital punishment statute in determining that there

was “neither a historical nor a modern societal

consensus forbidding the imposition of capital

punishment on any person who murders at 16 or 17

years of age” and “such punishment does not offend the

Eighth Amendment’s prohibition against cruel and

unusual punishment.” Stanford, 492 U.S. at 366. 380

Stanford noted its petitioners failed to establish a

societal “consensus against capital punishment for 16

and 17-year-old offenders through state and federal

statutes and the behavior of prosecutors and juries.

.” Id. at 377. The Supreme Court explicitly refused to

consider “other indicia, including public opinion polls

the views of interest groups, and the positions adopted

by various professional associations.” Jd. “A revised

national consensus so broad, so clear, and so enduring

as to justify a permanent prohibition upon all units of

poeta —— must appear in the operative

aws and the applicati

ent a tion of laws) that the people

A-52

The United States Supreme Court did not

overrule Stanford in Atkins v. Virginia, 122 S.Ct. 2242

(2002), Atkins did not deal with juveniles, but

addressed capital punishment of mentally retarded

persons. Jd. at 2244. The Court held that capital

punishment of the mentally retarded was cruel and

unusual for two reasons: 1) mentally retarded persons

-“do not act with the level of moral culpability that

characterizes the most serious adult criminal conduct,”

Id.; and 2) the prevailing standards of decency reflected

by objective standards such as legislatures, experts,

and the public establish a consensus against imposing

capital punishment upon the mentally retarded. Id.

United States Supreme Court decisions

interpreting the Constitution are the supreme law of

the land. Cooper v. Aaron, 358 U.S. 1, 18 (1958).’

“State court judges in Missouri are bound by the

‘supreme law of the land,’ as declared by the Supreme

Court of the United States (Art. VI, Constitution of the

United States).” Kraus v. Bd. of Educ., 492 S.W.2d

783, 784 (Mo. 1973). See also Rodgers v. Danforth, 486

S.W.2d 258, 259 (Mo. banc 1972) (citing U.S. Const.

art. VI; Cooper, 358 U.S. 1 (1958) (This court “is bound

to follow the decisions of the Supreme Court of the

United States.”).

This Court’s solemn duty to abide by decisions of

\“(TJhe interpretation of [the Constitution] enunciated by this

Court in [its decision] is the supreme law of the land, and Art.

VI of the Constitution makes it of binding effect on the States

‘any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding” Cooper, 358 U.S. at 18.

A-53

the Supreme Court of the United States is not abridged

simply because we disagree with that Court’s decision

or even if it appears that a decision was clearly in

error. Neither can this Court imply or anticipate the

overruling of a decision of the United Sta

— ni tes Supreme

, In State Oil Co. v. Kahn, the court of appeals

characterized [the United States Supreme Court’s

previous decision] as ‘unsound when decided’ and

inconsistent with later decisions’ of [that] Court,” but

“felt constrained to follow that decision.” 522 U.S. 3,9

(1997) (citation omitted). The Supreme Court of the

United States agreed with the appellate court’s

characterization of its previous opinion, but applauded

the court of appeals for respecting the doctrine of stare

decisis. Id. at 20.

Despite what Chief Judge Posner aptly

described as Albrecht’s “infirmities, [and]

its increasingly wobbly, motheaten

foundations,” there remains the question

whether Albrecht deserves continuing

respect under the doctrine of stare decisis.

The Court of Appeals was correct in

applying that principle despite

disagreement with Albrecht, for it is this

Court’s prerogative alone to overrule one

of its precedents.

Id. (internal citation omitted).

Similarly, Rodriquez de Quinas ov.

Shearson/American Express, Inc. noted a shift away

A-54

from “the old judicial hostility to arbitration.” 490 U.S.

477, 480 (1989). That viewed had “been steadily

eroded over the years” and the Court itself took notice

of the shift in a prior opinion. Jd. at 480-81. However,

the Supreme Court “did not suggest that the Court of

Appeals on its own authority should have taken the

step of renouncing” the Court’s prior decision. Jd. at

484.

If a precedent of [the Supreme Court of

the United States] has direct application

in a case, yet appears to rest on reasons

rejected in some other line of decisions,

the Court of Appeals [or other court)

should follow the case which directly

controls, leaving to this Court the

prerogative of overruling its own

decisions.

Id.

The Supreme Court of the United States has not

chosen to exercise its prerogative of overruling

Stanford v. Kentucky, despite several very recent

opportunities to do so. See Mullin v. Hain, 538 U.S.

___,1238.Ct. 1654 (2003) (mem. order); In re Stanford,

537 U.S. ___, 123 S.Ct. 472 (2002); Patterson v. Texas,

536 U.S. __, 123 S.Ct. 24 (2002). In each case, the

defendant was seventeen-years-old when he committed

the crime for which he was sentenced to death. The

Supreme Court refused to reexamine Stanford uv.

Kentucky despite vigorous dissents raising precisely

the same arguments as presented to this Court.

A-55

While the majority of this Court might believe

that Stanford v. Kentucky has been abandoned in light

of Atkins and in light of their perception of a national

consensus regarding capital punishment of juvenile

offenders, their belief and perception are not sufficient

to preempt the Supreme Court of the United States

concerning its existing precedent.

It is the prerogative of the Supreme Court of the

United States, and its alone, to overrule one of its

decisions.

The proper venue for Simmons to seek relief on

this issue is the Supreme Court of the United S

I would deny the writ. _

WILLIAM RAY PRICE, JR., Judge

A-56

STATE of Missouri, Respondent,

v.

Christopher SIMMONS, Ay yellant.

No. 77269.

Supreme Court of Missouri,

En Banc.

April 29, 1997.

Rehearing Overruled May 27, 1997.

ROBERTSON, Judge.

A jury convicted Christopher Simmons of first-

degree murder and recommended that he be sentenced

to death for the abduction and murder of Shirley

Crook. The trial court sentenced Simmons to death.

Simmons appeals, raising numerous points challenging

the propriety of his conviction and death sentence and

his counsels’ performance. Simmons filed a timely

Rule 29.15 motion which the trial court overruled.

This Court’s exclusive appellate jurisdiction is founded

on article V, section 3 of the Missouri Constitution. We

affirm the judgment of conviction and sentenced and

the denial of relief under Rule 29.15.

I.

Facts

A-57

Simmons does not challenge the sufficiency of

the evidence to support his conviction. We recite the

facts only in sufficient detail to reconstruct the factual

environment in which the legal issues arise.

In early September 1993, Christopher Simmons,

then age 17, discussed with his friends, Charlie

Benjamin (age 15) and John Tessmer (age 16), the

possibility of committing a burglary and murdering

someone. On several occasions, Simmons described the

manner in which he planned to commit the crime: he

would find someone to burglarize, tie the victim up and

ultimately push the victim off a bridge. Simmons

assured his friends that their status as juveniles would

allow them to “get away with it.” Simmons apparently

believed that a “voodoo man” who lived in a nearby

trailer park would be the best victim. Rumor had it

that the voodoo man owned hotels and motels and had

lots of money despite his residence in a mobile home

park. ‘

On September 8, 1993, Simmons arranged to

meet Benjamin and Tessmer at around 2:00 a.m. the

following morning for the purpose of carrying out the

plan. The boys met at the home of Brian Moomey, a

29-year-old convicted felon who allowed neighborhood

teens to “hang out” at his home. Tessmer met

Simmons and Benjamin, but he refused to go with

. them and returned to his own home. Simmons and

Benjamin left Moomey’s and went to Shirley Crook’s

house to commit a burglary.

The two found a back window cracked open at

the rear of Crook’s home. They opened the window,

A-58

reached through, unlocked the back door, and entered

the house. Moving through the house, Simmons

turned on a hallway light. The light awakened Mrs.

Crook, who was home alone. She sat up in bed and

asked, “Who’s there?” Simmons entered her bedroom

and recognized Mrs. Crook as a woman with whom he

had previously had an automobile accident. Mrs.

Crook apparently recognized Simmons as well.

Simmons ordered Mrs. Crook out of her bed and,

when she did not comply, Simmons forced her to the

floor with Benjamin’s help. While Benjamin guarded

Mrs. Crook in the bedroom, Simmons found a roll of

duct tape, returned to the bedroom, and bound her

hands behind her back. The two also taped Mrs.

Crook’s eyes and mouth shut. They walked Mrs. Crook

from h er home and placed her in the back of her

minivan. Simmons drove the van from Mrs. Crook’s

home in Jefferson County to Castlewood State Park in

St. Louis County.

At the park, Simmons drove the van to a

railroad trestle that spanned the Meramec River.

Simmons parked the van near the railroad trestle. He

and Benjamin began to unload Mrs. Crook from the

van and discovered that she had freed her hands and

had removed some of the duct tape from her face.

Using Mrs. Crook’s purse strap, the belt from her

bathrobe, a towel from the back of the minivan, and

some electrical wire found on the trestle, Simmons an

Benjamin bound Mrs. Crook, restraining her hands

and feet and covering her head with a towel. Simmons

and Benjamin walked Mrs. Crook to the railroad

Trestle. There, Simmons bound her hands and feet

ee = ———

A-59

together, hog-tie fashion, with the electrical cable and

covered Mrs. Crook’s face completely with duct tape.

Simmons then pushed her off the railroad trestle into

the river below. At the time she fell, Mrs. Crook was

alive and conscious. Simmons and Benjamin threw

Mrs. Crook’s purse into the woods and drove the van

back to the mobile home park across from the

subdivision in which Mrs. Crook lived.

Later that day, Simmons went to Moomey’s

trailer and bragged to Moomey that he had killed a

woman “because the bitch seen my face.” In the

meantime, Steven Crook, Shirley’s husband, returned

home from an overnight trip and discovered that his

wife had not gone to work as scheduled. When he did

not hear from his wife by that evening, he filed a

missing persons report.

That same afternoon, two fishermen found a

body floating in the Meramec River, three quarters of

a mile downstream from the railroad trestle. The

fishermen notified authorities, who removed the body.

The medical examiner identified the body from finger-

prints, determined the cause of death as drowning and

noted that the victim was alive prior to being pushed

from the bridge. The examiner also reported that Mrs.

Crook had sustained several fractured ribs and

considerable bruising and that these injuries did not

result from her fall from the railroad trestle.

The next day, September 10, police received

information that Simmons was involved in the murder.

They arrested Simmons at his high school and took

him to the Fenton, Missouri, police department. Police

aa i ——

A-60

read Simmons the warnings required by Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966). Simmons waived his constitutional rights and,

after a little less than two hours of questioning,

confessed to the murder. He also agreed to videotape

a confession and to take part in a videotaped

“reenactment” of the murder at the crime scene.

The Jefferson County prosecutor charged

Simmons with first-degree murder, burglary,

kidnapping and stealing. The trial court severed the

last three charges for trial purposes. Simmons sought

a change of venue. The trial court refused but agreed

to transfer a jury from Cape Girardeau County into

Jefferson County to hear the case due to the

substantial publicity the crime had received in

Jefferson County.

The jury found Simmons guilt of first-degree

murder and recommended the death sentence. The

trial court sentenced Simmons to death. Simmons filed

a Rule 29.15 motion, which his appointed public

defender amended in a timely fashion. Following an

evidentiary hearing, the motion court overruled

Simmons’s rule 29.15 motion. Simmons appealed the

conviction, his sentence, and the denial of post-

conviction relief.

Il.

Venue

Simmons contends that venue did not lie in

Jefferson County, but rather in St. Louis County, and

A-61

that the trial court erred in not transferring the case to

St. Louis County or, alternatively, dismissing the

charges. . Although the burglary and abduction

occurred in Jefferson County, Crook’s death took place

in St. Louis County and thus, Simmons argues, venue

lies in St. Louis County.

For support, Simmons cites State v. Harvey, 730

S.W.2d 271 (Mo.App. 1987). Harvey is inapposite. It

holds that jurisdiction of a murder is properly in the

— in which the defendant delivered the fatal wound

or blow.

Venue of homicides is governed by section

565.001.4, RSMo 1994. State v. Lingar, 726 S.W.2d

728, 732 (Mo. banc 1987). That statute provides that,

in instances where the offense is committed partly in

one county and partly in another or where the

elements of the crime occur in more than one county,

the defendant may be prosecuted in any of the counties

where any element of the offense occurred.

Appellate review of this question focuses on

whether one can reasonably infer from the facts and

circumstances that the crime occurred within the trial

court’s venue. Lingar at 732. The evidence shows that

Simmons broke into Shirley Crook’s home in Jefferson

County, found her there, and believed she would

recognized him because he had an automobile accident

that involved Mrs. Crook. Simmons bound Mrs. Crook

in Jefferson County, placed her in her van in Jefferson

County, and drove to the railroad trestle spanning the

Meramec River in St. Louis County, bearing the intent

to kill her he had formed in Jefferson County.

A-62

Deliberation is an element of first degree

murder. Section 565.020.1, RSMo 1994. This Court

observed in Lingar that the conclusion that the

defendant had deliberated the crime within a county is

sufficient to establish venue in that county under

section 565.001.4. Lingar, 726 S.W.2d at 732. See also

Leisure v. State, 828 S.W.2d 872, 879 (Mo. banc 1992)

(finding that deliberation and premeditation within St.

Louis City made venue proper although death occurred

outside the city limits).

_ From the evidence, it is reasonable to conclude

that Simmons deliberated the crime in Jefferson

County. This finding is sufficient to establish venue in

Jefferson County under section 565.001.4. The point is

denied.

Ii.

Jury Selection

A.

Simmons assigns error to the trial court's

decision to sustain the state’s challenges for cause to

two venirepersons who expressed a discomfort with

and uncertainty about the death penalty, claiming a

violation of his Sixth Amendment right to an impartial

jury.

When a prospective juror’s views on the death

penalty would “prevent or substantially impair the

performance of his duties as a juror in accordance with

his instructions and oath,” Wainwright v. Witt, 469

U.S. 412, 424, 105 S.Ct. 844, 852, 88 L.Ed.2d 841

A-63

(1985), the trial court may exclude the juror for cause.

The trial court must determine whether the views

expressed by a prospective juror will prevent or

substantially impair performance of a juror’s duties,

subject to appellate review for abuse of discretion. On

review, the trial court is afforded great deference

because of its superior ability to “interpret and

evaluate a venireman’s answers and demeanor.” State

v. Leisure, 749 S.W.2d 366, 374 (Mo. banc 1988).

Venireperson Judith Fluegge indicate that her

father was a minister, that his teachings emphasized

that “it’s wrong to take someone’s life,” and that she

would be very uncomfortable considering the death

penalty as a punishment option. At her moment of

greatest assurance about her ability to impose the

death penalty - a moment brought about by defense

counsel’s attempt to qualify her for the jury - Ms.

Fluegge said that she would be willing to listen to

evidence as to why she should consider the death

penalty and that she could “possibly” consider imposing

the death penalty.

Venireperson Laura Hecht also expressed

reservations about the death penalty, doubting her

ability to concentrate on the evidence with the

possibility of participating in a penalty phase

deliberation involving the death penalty awaiting her.

Her strongest commitment to considering the full

range of penalties came when she said in response to

defense counsel’s inquiry that she “possibly could, yes”

consider the death penalty.

We discover no abuse of the trial court’s

A-64

discretion in its decision to sustain the state's

challenges for cause to these two venirepersons on the

basis of their indecision and, specifically as to Ms.

Hecht, on account of her doubts about her ability to

concentrate on the evidence. The points are denied.

B.

During voir dire, the state asked:

“Is there anybody here for the sole fact of

the defendant’s age could not sit in

judgment in this case?”

“You're not saying that just because of his

age you wold never consider [the death

penalty]? You would be able to at least

consider it?” .

“And is your position that because of the

Defendant’s age, you could not consider

both punishments?”

“I’m not saying that you shouldn’t be able

to consider a person’s age. What I’m

saying is wold that totally exclude for you

any possibility of considering a sentence

of death.”

Simmons claims that these questions and statements

about his age and their affect on a venirepersons’

ability to sit in judgment over him in both the guilt and

penalty phases violate the Eighth Amendment to the

United States Constitution. Simmons claims that such

A-65

questioning suggested that age was not a proper

mitigating factor and could not be used as a basis for

deciding against imposing the death penalty. Simmons

further argues that the prosecutor sought a

commitment from the jurors to impose the death

penalty. Review is for abuse of discretion.

In State v. Richardson 923 S.W.2d 301 (Mo. banc

1996), the trial court dismissed potential jurors

because they would not consider the death penalty on

account of the defendant’s age. Richardson claimed

that these dismissals were improper because age is a

legitimate statutory mitigating factor. This Court

upheld the dismissals, noting the difference between

the consideration of mitigating circumstances, which

jurors must do, and a flat refusal to consider the full

range of punishment, which is grounds for

disqualification. Jd. at 309. Simmons contends that

his case is distinguishable because the state led the

_— to believe that they should not consider age at

The state’s questions and statements explore the

issue whether the-venirepersons would be able to

perform their duties as jurors - whether they would be

able to sit in judgment during the guilt phase and

whether they would be able to consider the full range

of punishment during the penalty phase because of the

defendant's age. It remains the law that both the

defendant and the state are entitled to a fair jury.

Contrary to Simmons’s argument, the state’s voir dire

questions and statements do not suggest that the

defendant’s age cannot be considered; in fact, the

prosecutor expressly rejected that position. Instead,

A-66

the state’s inquires asked whether a potential juror

would place too much weight on defendant’s age when

considering the facts and, ultimately, the appropriate

punishment. Nor do the statements seek a

commitment to vote for the death penalty.

Richardson controls. The trial court did not

abuse its discretion in allowing the questions. The

point is denied.

IV.

Confession

Simmons contends that he _ confessed

involuntarily and that he should have a new trial. He

claims this despite-his receipt of Miranda warnings

and his waiver of the rights the warnings protect. He

maintains his Fifth Amendment rights were violated

because he was subjected to interrogation despite his

announcement of his intent to remain silent; he also

asserts that he was coerced into confessing by

intimidation and promises of leniency.

The Miranda warnings are “prophylactic.”

Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct.

2875, 2880, 106 L.Ed.2d 166 (1989). They are a

judicial creation designed to “assure that the

individual’s right to choose between silence and speech

remains unfettered throughout the interrogation

process,” Miranda, 384 U.S. at 469, 86 S.Ct. at 1625,

despite an “interrogation environment [that] is created

for no purpose other than to subjugate the individual

to the will of his examiner.” Id. at 457, 86 S.Ct. at

A-67

1619.

The test for whether a confession is voluntary is

whether the totality of the circumstances created a

physical or psychological coercion sufficient to deprive

the defendant of a free choice to admit, deny or refuse

to answer the examiner’s questions. State v. Lytle, 715

S.W.2d 910, 915 (Mo. banc 1986). On appeal, the

evidence pertaining to the admissibility of appellant’s

confession is reviewed in the light most favorable to

the trial court’s ruling. State v. Debler, 856 S.W.2d

641, 650 (Mo. banc 1993). Any conflicts in the evidence

are for the trial court to resolve, and this Court will

defer to the trial court’s superior position from which to

assess credibility. Lytle, 715 S.W.2d at 915.

According to the evidence adduced at the

preliminary hearings and at trial, police arrested

Simmons at his highschool and drove him to the

Fenton police headquarters. No questioning occurred

at the time of the arrest nor during the journey to

police headquarters. Upon arrival, Detectives Knoll,

Elia, and Milano took Simmons into an interrogation

room. Using a department form, Knoll read Simmons

the warnings Miranda requires. Simmons initialed the

rights on the form, indicating that he understood those

rights. Simmons then signed a waiver of the rights the

Miranda warnings are designed to protect, and the

detectives commenced the interrogation. This initial

interrogation was not electronically recorded.

The initial interrogation session lasted

approximately two hours. At first, Simmons denied

any knowledge of the crime. The detectives

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occasionally raised their voices and moved within close

proximity (a foot) of Simmons’s face. Knoll told

Simmons that he thought Simmons was lying. The

detectives also suggested that Simmons’s accomplice,

Charles Benjamin, hd been arrested and was possibly

confessing at that moment.

At some point during the interrogation, Lt.

Edward Robertson, head of the major case squad,

entered the room. He told Simmons that he was facing

either the death penalty or life in prison and that is

would be in his “best interest” to tel the truth. After

Robertson left, Knoll and the other detectives

encouraged Simmons to remember what Robertson had

said and that it would be better for him to tell the

truth.

Eventually, Simmons asked everyone but

Detective Knoll to leave the room. Simmons confessed.

Simmons then agreed to permit videotaping of his

confession. Prior to his videotaped confession,

Simmons again received the Miranda warnings and

again Simmons waived his constitutional rights.

A.

Simmons acknowledges that the officers read

him the Miranda warnings at least twice, and that

each time, he indicated that he understood those rights

and waived them. The fact that a defendant is

repeatedly read the Miranda warnings, and voluntarily

waives his rights, weighs in favor of a finding that the

defendant voluntarily confessed. State v. Lytle, 715

S.W.2d 910 (Mo. 1986). Simmons, however, contends

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that the detectives conducting the investigation

violated these rights by continuing to question him

after he had indicated his intent to exercise his right to

remain silent.

After receipt of the Miranda warnings, “if the

individual indicates in any manner, at any time prior

to or during questioning, that he wishes to remain

silent, the interrogation must cease.” Miranda, 384

U.S. at 473-474, 86 S.Ct. at 1627. A person has a right

under the Fifth Amendment to “cut off questioning”

and this right must be scrupulously honored.

Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321,

326, 46 L.Ed.2d 383 91975). The suspect, however,

must give “a clear, consistent expression of a desire to

remain silent” in order to invoke his rights adequately

and cut off questioning. United States v. Thompson,

866 F.2d 268, 272 (8 Cir. 1989).

Nowhere in the record is there any direct

testimony - from Simmons or anyone else - as to

anything Simmons said or did that would constitute a

“clear, consistent expression of a desire” to assert his

Fifth Amendment rights and remain silent. The bulk

of the evidence in the record pertinent to this issue

consists of Simmons stating that he understood his

rights, that he waived those rights, and that he

confessed freely and voluntarily. Because Simmons

received and understood the Miranda warnings, he

also knew and understood that he had the right to stop

the interrogation at any time. The record shows

without equivocation that among the rights that

Simmons initialed and indicated he understood was

the following:

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If you decide to answer questions now

without a lawyer present, you will still

have the right to stop answering at any

time. You also have the right to stop

answering at any time until you talk toa

lawyer.

Simmons, although aware of this right, never

exercised it. At trial, defense counsel asked Detective

Knoll the following questions during cross-

examination:

Q. You advised Chris of his rights?

A. Yes, sir, I did.

Q. And you told him that he didn’t have to talk

to you?

A. Yes, I did.

Q. Did he have any problems - did he

say, “I don’t want to talk to you?”

. No.

Q. Did he freely sign those forms?

A. Yes, he did.

Q. And he freely started to talk to you?

A. Yes, he did.

Q. And what did he tell you at first?

A. He said he didn’t have any involvement in

the crime.

Q. Well, did he terminate the interview

at that point in time?

A. No, he did not.

>

The only evidence Simmons cites in support of

his claim is a statement that Detective Knoll made at

the beginning of Simmons’s videotaped confession. The

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statement upon which Simmons relies follows an

exchange in which Detective Knoll shows Simmons the

advice-of-rights form and confirms that the form had

been read to him; that Simmons understood it; and

that Simmons had initialed and signed the Miranda

waiver. Detective Knoll then observed that the

investigation hd been going on for some two hours and

said: “During the time all of this [the interrogation]

has been going on, you first started off saying you

didn’t know nothing about this crime, and you didn’t

want to tell us anything. Is that correct?”

This single, isolated statement hardly

establishes that Simmons made a clear, consistent

expression of a desire to remain silent. Read in

context, Detective Knoll’s statement refers to

Simmons’s initial denial of involvement in the crime,

not any assertion of the Fifth Amendment right to

remain silent. Furthermore, at trial, when directly

asked by the defense whether Simmons ever sought to

terminate the questioning, Defective Knoll denied that

Simmons had. Viewing the record as a whole, we find

no substantial, credible evidence that Simmons ever

asserted his right to terminate the questioning and

remain silent.

Simmons also claims that Detective Knoll

threatened to use Simmons’s silence against him, in

violation of his Fifth Amendment rights. Detective

Knoll allegedly told Simmons that if he did not tell the

truth and confess, Knoll would testify about Simmons

denying any involvement in the crime.

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As evidence supporting his claim, Simmons

points to the following from the deposition of Detective

Knoll:

Question: Did you discuss with

[Simmons] in what ways his failure to

give a statement could hurt him?

Answer: Well, we just told him that if he

chose to lie, which I believed he was, not

to tell the truth, that if it went to court

then I would get.on the stand and I would

testify that he sat there during the whole

interrogation, and denied his involvement

in the case.

This colloquy does not show an intent by

Detective Knoll to use Simmons’s silence against him.

Rather, Knoll said that he would use Simmons’s

statements against him - his denials of involvement in

the crime. A denial of involvement in the crime is not

an invocation of one’s right to remain silent. State v.

Pollock, 603 S.W.2d 614, 620 (Mo. App. 1980); State v.

Burley, 523 S.W.2d 575, 578 (Mo.App. 1975).

In telling Simmons that he would testify that

Simmons denied involvement in the case, Knoll also

indirectly reminded Simmons that anything Simmons

said could be used against him in court. Knoll did not

mislead Simmons as to the scope of the rights.

Miranda protects, nor did Knoll’s statements infringe

Simmons’s right to remain silent.

C.

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Simmons also contends that he confessed in

exchange for a promise of leniency. Simmons claims

that the detectives made an implied promise of

leniency when they told him that he could possibly face

the death penalty and that it would be better for him

if he told the truth.

A confession resulting from a direct or indirect

promise of leniency is inadmissible. State v. Chandler,

605 S.W.2d 100, 116 (Mo. banc 1980). However,

officers’ statements to a suspect that cooperating is in

his or her best interests are not improperly coercive

and do not, as a matter of law, render a confession

involuntary. Bannister v. Armontrout, 4 F.3d 1434,

1440 (8 Cir. 1993); State v. Klueg, 781 S.W.2d 133,

136 (Mo.App. 1989); State v. Wilson, 755 S.W.2d 707,

709 (Mo.App. 1988); State v. Dixon, 655 S.W.2d 547,

556 (Mo.App. 1983). See also U.S. v. Ruggles, 70 F.3d

262, 265 (2 Cir. 1995); United States v. Ballard, 586

F.2d 1060, 1063 (5 Cir. 1978) (finding that

encouraging a suspect to tell the truth does not, as a

matter of law, render the confession involuntary, even

where the suspect is only sixteen years old).

There is no indication on this record that the

detectives made any promise whatsoever to Simmons.

They simply told him that is was in his best interest to

tell the truth. Simmons tries to create an implied

promise by linking the statements that it would be in

his best interest to tell the truth to Robertson’s

statement that he was possibly facing the death

penalty. We find this supposed nexus far too tenuous

to support Simmons’s contentions. “If defendant had a

hope of leniency, that hope ‘springs from the seeds of

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his own planting [and] is not sufficient to render the

resulting confession inadmissible.” State v. Schnick,

819 S.W.2d 330, 336 (Mo. banc 1991).

D.

Simmons also contends that under the totality

of the circumstances, his confession must be found

involuntary. In determining whether a confession

resulted from im proper mental coercion, the court

considers factors such as age, experience, intelligence,

gender, lack of education, infirmity, and unusual

susceptibility to coercion, but no one fact is dispositive.

State v. Lytle, 715 S.W.2d at 915. Simmons reminds

the Court that he was 17 years old at th time of the

interrogation, a not-too-successful high school student,

possessed of a low intelligence quotient and likely did

not understand his constitutional rights, despite his

assurances to the contrary at the time of the

interrogation.

The record shows that authorities interrogated

him for nearly two hours. Simmons claims the

detectives used impermissibly coercive tactics to

wrench a confession from him. Among those coercive

tactics were yelling, “getting in his face,” and

misleading him about whether his accomplice Charlie

Benjamin was making a statement implicating him.’

The totality of these circumstances rendered

Simmons’s Miranda waiver involuntary, he now

‘Simmons also incorporates his prior arguments as evidence of

improper police coercion, but we have already found above that

the police did not engage in improper activity.

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contends.

Viewing the evidence in the light most favorable

to the trial court’s decision, we do not find, under the

totality of the circumstances, that Simmons was

deprived of a free choice to admit, deny or refuse to

answer the detectives’ charges, nor that he was

subjected to such psychological coercion that his will

was overborne at the time he confessed. The

questioning was not unduly long; it lasted

approximately two hours. Although the detectives “got

in his face,” no detective ever touched Simmons nor

was he ever threatened with any physical harm. The

detectives made neither promises nor threats.

Although Simmons was told he could face the death

penalty, such a statement does not constitute a threat

but is a permissible observation of the possible

consequences of first degree murder. See, e.g., United

States v. Scurlock, 52 F.3d 531 (5“ Cir. 1995) (finding

that a truthful, non-coercive statement of the possible

penalties an accused faces does not overbear the

accused’s free will). As for suggesting that his

accomplice, Charlie Benjamin, was contemporaneously

giving a statement implicating him, this tactic does

not, per se, render Simmons’s confession involuntary.

Confessions obtained by falsely leading an accused to

believe an accomplice has made statements implicating

the accused are admissible. State v. Flowers, 592

S.W.2d 167, 169 (Mo. 1979).

We find no error in the trial court’s decision to

admit Simmons’s confession. The points are denied.

V.

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Detective Knoll’s Testimony

Simmons claims the trial court denied his rights

to due process and a fair trial because the trial court

allowed Detective Knoll to offer his opinion as to

Simmons’s truthfulness and to testify as to whether

Simmons expressed any remorse for the crime.

A.

On redirect, the prosecutor asked Detective

Knoll whether he believed that the final version of the

story that Chris Simmons gave him was “the absolute

truth.” Simmons’s counsel objected to the question on

the grounds that the question would invade the

province of the jury to determine Simmons’s veracity.

The prosecutor argued that he was trying to rebut the

defense’s cross-examination, which sought to establish

that Knoll never actually knew what “the absolute

truth” was, but rather considered anything Simmons

told him to be “the absolute truth” as long as those

statements implicated Simmons in the crime. The trial

court sustained the objection. The prosecutor

rephrased the question, asking:

Q. Detective, after your investigation of

this case, and knowing all the things you

now know, do you believe that Chris

Simmons told you everything about what

he did?

The trial court overruled the defense’s objection

to the new question, and Detective Knoll responded,

“No, I do not.”

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Despite Simmons’s claim to the contrary, the

second question and Knoll’s answer are not improper

comments by Knoll on Simmons’s veracity. Knoll’s

statement focuses on whether he believed there was

more Simmons could have said in his confession.

In any event, there is no prejudice. There is

ample evidence to support Simmons’s conviction.

Simmons’s own words are sufficiently damning to

make Knoll’s statements inconsequential.

Moreover, it would make little sense for Knoll to

question Simmons’s credibility when Simmons’s own

confession is the strong, nearly impregnable foundation

of the state’s case. The point is denied.

ss B

.

Simmons also takes issue with Detective Knoll’s

testimony on redirect that Simmons never said he was

sorry. Simmons contends this testimony was

irrelevant and immaterial to the issue of guilt, and the

trial court abused its discretion in allowing the

testimony.

On cross-examination, the defense established

through Detective Knoll that Simmons cried on several

occasions during his confession. On redirect

examination, the prosecutor asked:

Q. Detective Knoll, I'll ask you again,

defense counsel asked you if the

Defendant was crying. At any time, did

he ever say he was sorry?

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A. No, he did not.

In response to an objection, the prosecutor

claimed that he addressed the question of Simmons’s

remorse, or lack thereof, to rebut the possible inference

of remorse the jury might have made from the fact that

Simmons was crying. The determination of the scope

of rebuttal is within the trial court’s discretion and,

absent an abuse of such discretion, the trial court’s

decision will not be reversed. State v. Hamilton, 892

S.W.2d 371, 379 (Mo.App. 1995).

While it is not clear that the defense raised the

issue of remorse by injecting evidence of the

defendant’s lacrimation, we cannot say that the

admission of Knoll’s testimony of rebuttal - absent any

showing of prejudice and in light of the overwhelming

evidence supporting the conviction - rose to the level of

an abuse of discretion that requires reversal. The

point is denied.

VI.

“Voodoo Man” Testimony

Simmons claims that the trial court erred during

the guilt phase in allowing two witnesses to testify

regarding Simmons’s plans and preparations to steal

from and murder a neighborhood resident known as

the “voodoo man.” This testimony, according to

Simmons, constituted evidence of prior bad acts, was

not offered for any of the recognized exceptions to the

evidentiary rule that excludes evidence of other crimes,

and was both irrelevant and highly prejudicial.

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A.

The first mention of the “voodoo man” at trial

came from Christie Brooks, who testified that Simmons

came by her house about five hours prior to the break-

in at Shirley Crook’s residence and told her that he and

two others were going to rob the “voodoo man.”

Defense counsel did not object to Christie Brooks’s

testimony and, on appeal, Simmons requests plain

error review.

In State v. Brown, 912 S.W.2d 278, 284 (Mo.

banc 1995), we said:

[U]nless a claim of plain error

facially establishes substantial grounds

for believing that “manifest injustice or

miscarriage of justice has resulted,” this

Court will decline to exercise its

discretion to review for plain error under

Rule 20.20. We will, however, consider

related claims of ineffective assistance of

counsel for failure to preserve the alleged

trial error under the test of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).

Simmons’s point does not raise a substantial

ground for finding plain error on its face.

Additional and more detailed testimony

regarding the plot to rob the voodoo man arose later in

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the trial when John Tessmer testified. Defense counsel

had filed a motion in limine regarding Tessmer’s

testimony about the voodoo man, which the rial court

overruled. Defense counsel offered a continuing

objection to the testimony at trial, which was also

overruled.

Tessmer testified that Simmons talked about a

plan to murder someone because he wanted “a bunch

of money.” Simmons told Tessmer he would throw the

victim off a bridge and had the “voodoo man” in mind.

Simmons discussed the plan with Tessmer three to five

times during the early part of September. The voodoo

man was always the intended victim whenever

Simmons discussed his plan with Tessmer. Simmons

also discussed the plan with Tessmer and Charlie

Benjamin while at Brian Moomey’s house, saying that

he wanted to kill someone and “get a bunch of money”

by tying them up and throwing them off a bridge or by

tying the victim to a tree and getting the victim's bank

car.

Tessmer also testified that he observed Simmons

making masks out of sweatshirts so the voodoo man

would not see their faces. About four days prior to

Shirley Crook’s murder, Simmons allegedly asked

Charlie Benjamin to help them kill somebody,

according to Tessmer. Tessmer said that about three

days before the murder, he saw ropes and gloves at

Simmons’s house.

On September 8, Simmons told Tessmer that he

wanted to meet him and Charlie Benjamin at Brian

Moomey’s house at 2:00 a.m. the following morning for

ES A PAR WO DT et

A-81

the purpose of committing the murder. Tessmer met

Simmons at Brian Moomey’s house but did not go with

him to Shirley Crook’s house. Tessmer did not believe

that Simmons was actually intending to rob and

murder someone that night. Tessmer also testified

that Simmons did not have any weapons, masks, or

other equipment with him that night.

The trial court has broad discretion to exclude or

admit evidence at trial. This Court will reverse only

upon a showing of a clear abuse of discretion. State v.

Parkhurst, 8456 S.W.2d 31 (Mo. banc 1992). A trial

court’s admission of irrelevant and immaterial

evidence, even of other crimes, will not be reversed on

appeal absent a showing of prejudice. State v. Ellis,

853 S.W.2d 440, 445 (Mo. App. 1993). Tessmer’s

testimony is not other crimes testimony. It speaks

directly to Simmons’s motive and the deliberateness of

his geueral plan to steal and murder. On that basis it

is admissible. Nevertheless, and assuming for the sake

of argument only that Tessmer’s testimony should have

been excluded, we do not find that is inclusion

prejudiced Simmons in light of the other,

overwhelming evidence of Simmons’s guilt.

This case is not at all like State v. Sladek, 835

S.W.2d 308 (Mo. banc 1992), on which Simmons relies.

In Sladek, it was explicitly clear that the trier of fact

(in that case, the court), relied on the uncharged

transgressions to convict Sladek. When sentencing

Sladek, the trial court said that the state had a very

weak case, that absent the evidence of trial court

would not have found Sladek guilty, and that if the

evidence of the uncharged transgressions should not

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have come in, then Sladek’s conviction should be

reversed on appeal. Jd. at 310-11.

In sum, Simmons has made no showing of

prejudice that flowed from the testimony of John

Tessmer. We find no abuse of discretion on the part of

the trial court in overruling the defense’s motion in

limine and continuing objections at trial regarding

John Tessmer’s testimony.

Vil.

Improper Closing Argument During Guilt

Phase

Simmons assigns error to the trial court’s failure

to correct the prosecutor’s closing argument during the

guilt phase. Of the errors claimed, only one was

properly preserved for review.

During the guilt phase of the trial, the

prosecutor argued:

the evidence is uncontroverted.

Uncontroverted. The evidence of plotting,

the evidence of burglary, the evidence of

premeditation, the evidence of binding,

the evidence of blindfolding, transporting,

of murder. I’m going to ask you to go

back, and render a verdict of guilt of

murder in the first degree. You’re never

going to get to the other verdict because

there was premeditation. This wasn’t

sudden passion. This wasn’t an accident.

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Premeditation, binding and transporting.

Render that verdict so we can get on

with the rest of the trial.

Defense counsel objected to the highlighted

portion of the argument. The trial court overruled the

objection. Simmons claims that the argument

improperly refers to the punishment phase of the trial

without giving the defense an opportunity to address

the argument. Simmons relies on State v. Maxie, 513

S.W.2d 338, 345 (Mo. 1974), for the proposition that if

punishment is discussed in closing arguments, the

discussion should occur in the opening portion of the

state’s argument so that defense counsel has an

opportunity to respond to that argument. Simmons

also contends that the prosecutor’s statement is

contrary to the instructions of the court because the

prosecutor argued that the jury should hurry in its

deliberations.

The trial court’s ruling will not be overturned

absent an abuse of discretion resulting in prejudice to

the defendant. State v. Mahurin, 799 S.W.2d 840 (Mo.

banc 1990). An abuse of discretion exists only where

the prosecutor’s statements are plainly unwarranted

and clearly 8njurious to the defendant. Id.

Reading the prosecutor’s statements context, we

do not believe that he prosecutor is urging the jury to

hurry its deliberations or inviting the jury to consider

punishment prematurely. At most, the prosecutor's

argument is an artful attempt to summarize the

overwhelming and undeniable evidence of guilt. The

point id denied.

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VII.

Media Coverage

Simmons contends he was denied due process, a

fair trial, and his right to confront witnesses because

the trial court allowed cameras in the courtroom to

cover the proceedings over Simmons’s objection.

Simmons claims he was prejudiced because the

testimony of the State’s witnesses, particularly Shane

Knoll and Brian Moomey.

Electronic media coverage of criminal trials does

not constitute a per se denial of due process. Chandler

v. Florida, 449 U.S. 560, 574, 101 S.Ct. 802, 809-10, 66

L.Ed.2d 740 (1981). The defendant must produce

evidence that the media coverage of his case “had an

adverse impact on the trial participants sufficient to

constitute a denial of due process.” Jd. at 581, 101

S.Ct. at 813. Simmons has not produced such evidence

nor does his argument offer more than hopeful

speculation. The point is denied.

IX.

Disclosure of Witness Arrest Records

Simmons contends he was deprived of a fair trial

because the trial court refused to order the disclosure

of the arrest records of all of the state’s witnesses. As

a result, Simmons claims, he could not effectively

cross-examine the state’s witnesses regarding their

biases, prejudices, or motives to lie on the stand.

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Rule 25.03 designates certain types of

information that the state must disclose to the

defendant. If the information sought by the defendant

does not fall within any of these categories, the

defendant may make a written motion to the court

requesting the state to disclose the information under

the terms of Rule 25.04. If the court finds the request

reasonable, the court will order the state to disclose the

information to the extent the court finds it relevant

and material to the defendant’s case.

In reviewing claims regarding meaningful

discovery in a criminal trial, this Court looks to see

whether there was a reasonable likelihood that the

denial affected the result of the trial. The trial court’s

refusal to require disclosure will be overturned only if

it appears that the trial court abused its discretion to

the extent that fundamental unfairness to the

defendant resulted. State v. Mease, 842 S.W.2d 98, 108

(Mo. banc 1992).

In this case, Simmons requested that the trial

court order the state to disclose the prior criminal

history or “rape sheets” of all state witnesses.

Simmons admits that the trial court sustained

Simmons’s motion as to prior convictions,” but claims

that the court refused to order the state to disclose the

“rap sheets” or similar information regarding prior

*We note that a court order is not necessary to obtain prior

convictions as these are required to be disclosed under Rule

25.03(A)(7).

A-86

arrests that did not lead to convictions.’ Simmons

sought this information in order to impeach the

witnesses’ credibility. While generally, one may not

impeach a witness’s credibility by showing an arrest,

investigation or criminal charge that has not resulted

in a conviction, a party can use such evidence if the

inquiry would demonstrate either (1) a specific interest

of the witness; (2) the witnesses’s motivation to testify

favorably for the state; or (3) that the witness testified

with an expectation of leniency. State v. Wise, 879

S.W.2d 494 (Mo. banc 1994).* Even for such purposes,

a witness’s arrest record would only be relevant to the

It is not clear what the trial court ordered disclosed im this

regard. The rial court initially indicated that it would sustain

Simmons’s motion. The parties then discussed whether arrest

records are discoverable or only prior convictions. The court

then told the State “to summarize prior criminal history, but not

to provide the original rape sheet.” Mr. Crosby, for the defense,

argued that the entire rap sheets were discoverable, although not

necessarily admissible. The Court responded, “I’1] stand on that

for now” and called a recess. Upon return, the Court stated that

it “had sustained [the motion for disclosure by Court order] as

to the prior criminal history.” The scope of “criminal history”

is never defined.

‘The state argues that Simmons was not entitled to disclosure

because he failed to show that any of the above exceptions

apply. This argument puts the cart before the horse. The

exceptions address whether such information is admissible, not

whether it is discoverable. The entire purpose of discovery of

arrest records is to determine whether the witness had a

motivation to testify favorably for the state or had an

expectation of leniency. Admissibility issues arise only after

the defense offers evidence that it found through discovery.

A-87

extent there are any pending charges; past arrests,

investigations, or charges would not be relevant to

show present motivation to testify favorably for the

state. See, e.g., State v. Joiner, 823 S.W.2d 50, 53 (Mo.

App. 1991) (distinguishing between the potential

relevancy of pending charges and the irrelevancy of

past charges).

. For the purpose of impeachment, it appears that

Brian Moomey is the only witness whose arrest records

could have possibly been material or relevant to

Simmons’s case, assuming, of course, that those records

would have revealed any pending charges. The trial

court’s apparent decision not to require disclosure of

Moomey’s arrest records is not an abuse of discretion,

however, because there is simply no grounds for

believing that the non-disclosure had any palpable

effect on the outcome of the trial. Simmons confessed

to the murder, and thus there was ample evidence of

his guilt. As for impeaching Moomey’s testimony, the

defense established that Moomey had spent time in

prison for assault with a weapon, burglary and

straling; that he drank heavily - indeed, admitted

passing out almost every night, and that he had told

the witness coo: inator that he was afraid to testify

because “people were investigating [him] for the

murder, and the investigator was focusing on [him] as

being involved in the death of Shirley Crook.”

Evidence of other of Moomey’s illegal activities could

hardly have had a negative impact on the jury’s view

of his character given what they already knew.

Moreover, the record reflects ample opportunity to

cross-examine the witnesses, and there is no evidence

indicating that a “fundamental unfairness” resulted

A-88

from the trial court’s decision not to require disclosure

of Moomey’s entire rape sheet. The point is denied.

X.

Reasonable Doubt |.:structions

Despite nearly ten years of case law contrary to

his position, Simmons doggedly raises the consistently-

raised-but-to-date futile challenge to the validity of

instructions based on MAI-302.04 and 313.30, claiming

that the “firmly convinced” language in the

instructions lowers the state’s burden of proof, thereby

depriving Simmons of due process. This Court has

upheld the “firmly convinced” language in State v.

Chambers, 891 S.W.2d 93 (Mo. banc 1994); State v.

Parker, 886 S.w.2d 908 (Mo. banc 1994); State v.

Williams, 871 S.W.2d 450 (Mo. banc 1994); State v.

Harris, 870 S.W.2d 798, 811 (Mo. banc 1994); State v.

Shurn, 866 S.W.2d 447, 462 (Mo. banc 1993); State v.

Ramsey, 864 S.W.2d 320 (Mo. banc 1993); State v.

Griffin, 848 S.W.2d 464, 469 (Mo. banc 1993); State v.

Ervin, 835 S.W.2d 905, 924 (Mo. banc 1992); State v.

Blankenship, 830 S.W.2d 1, 13 (Mo. banc 1992); State

v. Twenter, 818 S.W.2d 623, 634 (Mo. banc 1991); State

v. Waller, 816 S.W.2d 212 (Mo. banc 1991); State v.

Wacaser, 794 s.W.2d 190, 195 (Mo. banc 1990); State v.

Murray, 744 S.W.2d 762, 771 (Mo. banc 1988); State v.

Antwine, 743 S.W.2d 51, 63 (Mo. banc 1987); State v.

Bowman, 741 S.W.2d 10, 15 (Mo. banc 1987); State v.

Sandles, 740 S.W.2d 169, 175 (Mo. banc 1987); and

State v. Guinan, 732 S.W>2d 174, 178 (Mo. banc 1987).

The point is denied.

A-89

XI.

Simmons alleges that the trial court erred in

overruling his motion to strike the “depravity of mind”

aggravating circumstance and in overruling his

objection to Instruction 16, which submitted that

aggravating circumstance to the jury. Simmons

contends that the depravity of mind aggravating

circumstance is unconstitutionally vague and that he

is entitled to a new sentencing hearing because of its

allegedly erroneous use.

The depravity of mind aggravator was submitted

to the jury as follows:

4. Whether the murder of Shirley Crook

involved depravity of mind and whether,

as a result thereof, the murder was

outrageously and wantonly vile, horrible,

and inhuman. You can make a

determination of depravity of mind only if

you find:

That the defendant killed Shirley

Crook after she was bound by defendant

and that defendant thereby exhibited a

callous disregard for the sanctity of all

human life.

This language is similar, in all material

respects, to the “depravity of mind” aggravator at issue

in State v. Tokar, 918 S.W.2d 753, 772 (Mo. banc

A-90

1996).° In Tokar, this Court determined that “the jury

was specifically provided guidance on when they could

find this aggravating circumstance.” This Court has

held that language and limiting instructions such as

that in this case and in Tokar provide sufficiently

narrow parameters to guide the jury and that the

instruction not constitutionally vague. Id. State v.

Mease, 842 S.W.2d 98, 113 (Mo. banc 1992), cert.

denied, 508 U.S. 918, 113 S.Ct. 2363, 124 L.Ed.2d 269

(1993); Sidebottom v. State, 781 S.W.2d 791, 799 (Mo.

banc 1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295,

111 L.Ed.2d 804 (1990). The point is denied.

XI.

Rule 29.15 Issues

Simmons’s Rule 29.15 motion contains

numerous claims of ineffective assistance of trial

counsel. We have exercised our discretion not to

permit plain error review where counsel failed to

preserve an alleged error for appellate review and the

request for plain error review does not establish

substantial grounds of prejudice on its face. Consistent

with State v. Brown, we have reviewed each of the

claims of ineffective assistance carefully and

determined that those claims not individually

addressed below offer no grounds upon which a

reasonable probability of prejudice to Simmons from

counsels’ acts of failures to act could be founded.

Because an individual analysis of these claims would

‘The only difference is that the aggravator in Tokar read

“Bound or otherwise rendered helpless.”

A-91

carry n o precedential value, they are denied without

further discussion. Rule 84.16(b).

To prevail on a claim of ineffective assistance of

counsel, the movant must establish by a preponderance

of the evidence “that counsel failed to exercise the

customary skill and diligence that a reasonably

competent attorney would perform under similar

circumstances, and that he was prejudiced thereby.”

Moore v. State, 827 S.W.2d 213, 215 (Mo. banc 1992);

Strickland v. Washington, 466 U.S. 668, 687-89, 104

S.Ct. 2052 2064-65, 80 L.Ed.2d 674 (1984). Prejudice

exists where there is a reasonable probability that the

outcome of the proceeding would have been different

but for counsel’s ineffectiveness. Strickland, 466 U.S.

at 694, 104 S.Ct. at 2068. Where trial counsel decides

as a matter of trial strategy to pursue one evidentiary

course to the exclusion of another, trial counsel’s

informed, strategic decisions not to offer certain

evidence is not ineffective assistance. Leisure v. State,

828 S.W.2d 872, 875 (Mo. banc 1992). A motion

court’s determination will be overturned on appeal only

if it is clearly erroneous. State v. Whitfield, 939 S.W.2d

361, 369 (Mo. banc 1997).

A.

Simmons claims that trial counsel was

ineffective in failing to object during guilt phase closing

argument when the state said

Well, in that struggle [with Shirley

Crook], [Simmons] won, but in this

struggle he’s not going to win because

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this struggle goes beyond what happened

on September 9” of 1993. This struggle

goes to what goes on every day in society.

We have to take a stand and take control

of our streets. [They’re our] streets,

[they're our) homes. If we can’t be

protected in our homes, we can’t be

protected anywhere. Do you think he

wants you protected in your home?

(Emphasis added.)

Simmons argues that the highlighted portion of

the argument constitutes an improper personalization

of the crime to the jury. It is, of course, improper for a

prosecutor to suggest personal danger to the jurors or

their families if the defendant should be acquitted.

State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995);

State v. Santonelli, 914 s.W.2d 13, 15 (Mo. App. 1995).

The prosecutor’s statement is a vague and ill-

defined, near-non sequitur. It does not suggest

personal harm to the jurors if Simmons is acquitted.

In Stor-v, the state asked the jurors to put themselves

in the v.ctim’s shoes and imagine the crime happening

to them. Storey, 901 S.W.2d at 901. The prosecutor's

statement here is substantially less personal than the

argument condemned in Storey. Moreover, Simmons

makes no showing or reasonable argument that the

statement had a decisive effect on the outcome of the

trial, given the evidence of Simmons’s guilt.

Simons also maintains that the entire argument

as set out above was an argument outside the record to

A-93

which his counsel should have objected. Simmons does

not explain this claim sufficiently well for us to grasp

its focus. Nevertheless, assuming that Simmons’s

argument is that the statement alleges that society's

struggle with crime goes on every day, we have

previously said that the prosecutor may argue the

prevalence of crime in the community and may call on

common experience in doing so. State v. Clemmons,

753 S.W.2d 901 (Mo. banc 1988).

Simmons goes to assert that the argument is

impermissible because prosecutors may not urge a

conviction in order to protect community values or

deter future lawbreaking. Simmons is incorrect. The

state may argue that the jury should send a message

that society will not tolerate certain conduct. State v.

Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994).

Simmons also claims trial counsel was

ineffective in failing to object to the prosecutor’s guilt-

phase argument that “[n] matter how obviously guilty,

he has a right to a fair trial. Folks, he had his day in

court. The Judge has taken every precaution.”

Simmons argues that the statement is an improper

comment about the prosecutor’s opinion of Simmons’s

guilt, and that such a statement plays on the jury’s

susceptibility to believe the prosecutor, suggests the

prosecution’s possession of undisclosed matters

relating to the crime, and undermines the jury's —

discretion.

The prosecutor may make statements that draw

A-94

a legitimate inference from the evidence but may not

make statements that-imply a knowledge of facts not

before the jury. State v. Whitfield, 837 S.W.2d 503

(Mo.1992). The statement "no matter how obviously

guilty" merely suggests that the evidence adduced at

trial supports a finding of guilt; the statement does not

suggest knowledge of outside facts, but highlights

Simmons's own confession.

Simmons claims ineffective assistance of counsel

resulted when the prosecutor referred to him as a

"predator" and suggested he possessed an "evil mind"

and trial counsel did not object. It is not error for a

prosecutor to characterize a defendant and his criminal

conduct as long as the evidence supports such a

characterization. For example, in State v. Carson, 883

S.W.2d 534 (Mo.App.1994), the court did not fault the

defense for failing to object to the prosecutor's

characterization of the defendant as a "thug and bully."

The court observed that the evidence showed that the

victim was "jerked back real quick," hit in the back and

shoved to the ground. This conduct, the court found,

was "the work of a thug and bully." Jd. at 536.

In this case, a reasonable person could find the

deliberate, premeditated murder of Shirley Crook by

throwing her from a bridge the work of a predatory

person with evil motives. This is simply not a case

where the prosecutor ascribed labels to the defendant

that were totally unsupported by the evidence, as in

State v. Whitfield, 837 S.W.2d 503 (Mo.1992) (finding

insufficient evidence to label homicide defendant as a

"mass murderer" and a "serial killer"), or where the

prosecutor injected evidence of unrelated crimes, as in

A-95

State v. Burnfin, 771 S.W.2d 908 (Mo.App.1989). The

motion court did not err in overruling Simmons's Rule

29.15 motion on these points relating to guilt phase

closing argument.

C.

Simmons claims that his trial counsel was

ineffective in failing to investigate and present

evidence during the penalty phase relating to abuse

Simmons suffered as a child, his alcohol and drug

abuse, his mental illness, and threats made by Brian

Moomey to Simmons and his family following

Simmons's arrest.

At the crux of Simmons's claim of ineffective

assistance of trial counsel is the role of Dr. Daniel

Cuneo. The Rule 29.15 hearing record shows that

Simmons's counsel employed Dr. Cuneo to complete an

evaluation as to Simmons's competency, sanity, and to

determine the presence of mitigating factors for use in

the penalty phase. Simmons claims that his attorneys’

decision not to present evidence of Simmons's physical

abuse at the hands of his stepfather, psychological

abuse resulting from his bitterly divorced parents, and

his own abuse of alcohol and drugs was not an

informed decision. Simmons characterizes his

attorneys’ actions as a failure to investigate and

concludes that a strategic decision that is not informed

is not a strategic decision at all. Much of Simmons's

claim in this regard results from his belief that there

was serious miscommunication between his attorneys

and Dr. Cuneo. He claims that Dr. Cuneo assumed that

the attorneys would provide him all of the relevant

A-96

evidence necessary to formulate an opinion as to the

presence of psychologically-based mitigating

circumstances. He also claims that the attorneys

assumed that Dr. Cuneo would conduct an independent

investigation and would not rely solely on information

provided by Simmons's.attorneys.

It appears from our review of the record that the

attorneys initially believed that absent compelling

psychological evidence that might explain Simmons's

homicidal behavior, Simmons stood a better chance

with the jury if the penalty phase evidence attempted

to play on the jury's sympathy and the impact on

Simmons's family should he be put the death at the

hands of the state. Dr. Cuneo's work--at least as it

regarded mitigating circumstances--was designed to

determine whether such compelling psychological

evidence existed.

The motion court found Simmons's counsel

thoroughly investigated Simmons's background.

Mr. Crosby [one of the two trial

counsel] indicated that he interviewed

many individuals in preparation for

Movant's defense. He testified that he

interviewed one of Movant's counselor's

[sic] at school, the principal and the

assistant principal of Movant's school,

Movant's parents, Movant's

grandparents, a cousin, step-brothers, the

father of Beth Simmons, Robert Hayes’

sister, Joe Tessmer, Christy Brooks and

Chris Brown. He indicated that he

A-97

reviewed the school records of Movant

and learned that his grades were not good

and that his absenteeism was high and

that several times [sic] disciplinary

actions was [sic] imposed upon Movant.

Mr. Crosby also indicated that he on

several occasions spoke with an attorney,

Mr. John Counts, who represented

Charles Benjamin, a co-defendant in the

criminal case.

Mr. Crosby indicated he learned of

Movant's use of marijuana and alcohol.

He testified that the Movant's

involvement in his use of marijuana and

alcohol were not considered by him to be

significant enough to demonstrate any

impact on Movant's state of mind....

Mr. Crosby testified that while

Movant was in custody he met with him

fifteen to twenty times and averaged one

hour per visit. Movant denied to Mr.

Crosby that Robert Hayes [movant's

stepfather] abused him....

kk KK OK

Mr. Burton [one of the two trial

counsel] testified that he mailed sixty

letters to the individuals named by

Movant. He testified *184 that he had

interviewed Movant four or five times

and he interviewed Movant's parents and

several of his friends. He testified that he

A-98 A-99

I called back later before trial to see if we

wanted to and it was their decision at

that point that there were some things

that were bad that I could say. The bad

In addition, Dr. Cuneo testified at the Rule that I could say would outweigh what I

29.15 hearing about his conversations with Simmons's could say that could be helpful.

attorneys.

spoke with several of Movant's school

teachers and with one former employer

through that employer's attorney.

The decision not to pursue the psychological

evidence was founded on Dr. Cuneo's initial report that

identified no compelling mitigating circumstance. The

motion court found:

A. [by Dr. Cuneo, upon

cross-examination by the State] They

asked me what my perceptions were. One

of the things is that they were worried

that his history of alcohol and drug abuse

may not be helpful. My perceptions of

Christopher at that time was he had

borderline traits and his accounting to me

of the alleged offense, I had stated was

quite cold and they felt that if I thought

that some of the mitigating factors would

be important, i.e., the fact of his possible

relationship with Brian Moomey; the fact

of calling them Thunder Cats, the fact of

having a kiddy gang that very well may

have been supporting him although we

never had any hard data on that; also the

perception that the way he accounted the

crime to me, or his accounting of the

alleged offense or crime to me was

extremely cold and that would not be in

his best benefit to have that done. So we

talked n I guess we talked for about an

hour and hour and a half [sic] on the

phone as to whether in fact I should

pursue anything else. And they stated no.

Mr. Burton outlined his plan for

the penalty phase of trial. He indicated

that he wanted to counter what the

State's evidence was and to appeal to the

sympathies of the jury and ensure the

jury knew Movant was only seventeen.

He intended to present the Movant as one

who was liked or loved by his brothers,

his mother, his father and Christy

Brooks. He also sought the perspective

testimony of other friends, school

teachers or former employers but learned

that none of them could offer anything

substantive. In fact, some appeared to be

intimidated by the charge pending

against Movant and were unwilling to

discuss anything positive about him. The

plan included the intention to present

Movant as a_ seventeen year old

individual who had not yet had the

opportunity to develop a series of good

deeds but to some extent did do good for

A-100

one of his age. Another objective was to

present some of Movant's family to

demonstrate their sorrow in

contemplating the _ possible

recommendation of death. Mr. Burton

believed that if the jury chose not to like

Movant, they may choose to like his

family and spare Movant's life for the

family's benefit.

x**x* * * * *

Mr. Burton indicated that a decision was

made to present no evidence regarding

Movant's drug or alcohol use. He testified

that he learned there was no alcohol

consumed or drugs used at the time of the

crime. Mr. Burton also learned of the

strained relationship between Movant

and his step-father. He indicated he

believed that any information regarding

this relationship would serve to work

against Movant and therefore a decision

was made not to present any of that

evidence during the mitigation phase.

This strategic decision is made all the more

reasonable when one considers--as did the motion

court--the testimony offered by Dr. Robert Smith in

support of Simmons's position at the Rule 29.15

hearing. After administering a battery of tests to

Simmons and his parents and stepfather, and after

extensive interviews with Simmons and with persons

familiar with Simmons's upbringing, Dr. Smith

A-101

determined that Simmons had a borderline personality

disorder and a schizotypal personality disorder.

Missouri juries considering the death penalty have

often rejected such testimony as the sort of compelling,

psychological mitigating evidence that warrants a life

sentence. See, e.g., State v. Kreutzer, 928 S.W.2d 854

(Mo. banc 1996) (jury recommends death penalty

despite psychological testimony that defendant

suffered from post- traumatic stress disorder and

borderline personality disorder as a result of past

emotional and physical abuse); State v. Parker, 886

S.W.2d 908 (Mo. banc 1994) (jury recommended death

sentence after mental health expert testified to

defendant's borderline personality disorder); and State

v. Duisen, 428 S.W.2d 169 (Mo. banc 1967) (jury

recommended death sentence after hearing evidence

that defendant had a schizophrenic reaction of the

paranoid type and anti-social behavior). Simmons's

experienced trial counsel, no doubt aware of the

likelihood of the success of the psychological evidence,

chose a strategy they believed might give Simmons's

better chance for a life sentence. That the strategy was

not successful does not render its use ineffective

assistance of counsel.

Simmons argues that Eddings v. Oklahoma, 455

U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), requires

the trial counsel to offer mitigating evidence of

childhood abuse and severe emotional disturbance

when the defendant is youthful. Despite Simmons's

claim to the contrary, Eddings does not require that

such evidence be placed before the jury during the

penalty phase. In Eddings, the constitutional error was

not the failure to put on mitigating evidence but the

A-102

failure of the sentencing court to consider it. Where

trial counsel makes a reasoned decision not to place

such evidence before the jury during the penalty phase,

Eddings does not announce a per se rule mandating

the submission of mitigating evidence solely because of

a defendant's youth.

The motion court did not clearly err in denying

Simmons's claims of ineffective assistance of counsel on

this point.

D.

During the penalty phase, Mrs. Crook's

husband, Steven, testified:

But she was terrifically scared of height.

It terrifies me to think of her being

blindfolded and knowing that she

was--because I feel that they would have

talked about where they were going, and

to be thrown off of a high spot would be

really a terrible thing for her to--and then

how she would feel about not being home

when I come home. I know that as much

pain as she would have been going

through, I know she would have been

worried about me, and worried about Kim

and Randy and her mother. Her mother

A-103

how she--how I imagine she felt during

all of this, what she thought. I can't

imagine what she went through, the

terror that she felt. I just--I have a

picture in my mind that she can't see, she

can't speak, she can't scream out, she

can't get her hands on anybody, she's tied

up, she's naked. You know, she never

wanted to be unclothed. It just tore her

down emotionally. Threw her in a van. I

just imagine--I can imagine her

feelings--you know--I can imagine

that--I'm sure they were talking.

I can imagine that she was being

pushed over, and the freeness of the air.

There's nothing below you, there's

nothing holding you up. I can't imagine

the terror that she's thinking, what's

happening, what's going on, I can't see

anything. Then I imagine her hitting the

water. Does she know to take a breath?

Does she know that's what was going to

happen. Then you hit the water, and then

you go in. And then if she had a breath

that she held, how long could she hold it?

Did it hurt? When the water came in, did

it hurt?

Mrs. Crook's sister, Purdy Mitchell, read a

prayer she had prepared and delivered at the family's

Mrs. Crook's daughter, Kimberly Hawkins said: first Thanksgiving after Mrs. Crook's murder.

was ill.

Like I said, I have dreams. I dream about Dear God, we come together to remember,

A-104

to celebrate and give thanks. You have

given us the gift of each other, and the

love we share that you have planted in

our hearts. By your gracious hand, we

have received all that we have for our

love and our hope and faith. We are

grateful. We humbly ask you to grant

your special graces to our family. May our

homes be a place of peace and love and

faith. We ask you, Dear God, to protect

and bless all of us absent and present,

living and dead. We wanted to put

something in there that would kind of say

Shirley without saying her name. Please

bless this food, and bless us who are

gathered here. In the name of Jesus,

Amen.

Simmons claims his counsel was ineffective in

failing to object to this testimony of the victim's family

and that this failure resulted in a violation of

Simmons's Eighth and Fourteenth Amendment rights.

1.

Payne v. Tennessee, 501 U.S. 808, 111 S.Ct.

2597, 115 L.Ed.2d 720 (1991), reversed the holdings of

Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96

L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490

U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), that

the Eighth Amendment forbids the admission of victim

impact evidence during the penalty phase of a capital

trial in every instance. Payne expressly limited its

holding to victim impact evidence. Because the

A-105

evidence in Payne did not extend to the victim's

family's characterizations of and opinions about the

crime, the Supreme Court did not reconsider Booth's

holding that such evidence likewise violates the Eighth

Amendment. Payne, 501 U.S. at 830, n. 2, 111 S.Ct. at

2611, n. 2.

The Supreme Court's Eighth Amendment

jurisprudence has not beaten an easily- followed path,

as the transition from Booth to Gathers to Payne

shows. Pre-Booth decisions focus the Eighth

Amendment inquiry on concerns "that the sentencing

process should facilitate the responsible and reliable

exercise of sentencing discretion" by the jury. Caldwell

v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633,

2639, 86 L.Ed.2d 231 (1985). Payne, authored for the

Supreme Court by Chief Justice Rehnquist, seems to

reject Eighth Amendment concerns about reliability

expressed in Caldwell, at least as to matters of

evidence introduced at the sentencing phase. Payne

adopts the view of then-Justice Rehnquist's Caldwell

dissent that “there is no [Eighth Amendment]

requirement that all information received by a

sentencing jury be 'relevant.'" Jd. at 351, 105 S.Ct. at

2651 (Rehnquist, J., dissenting).

Thus, it appears that

post-Payne-Eighth-Amendment analysis applies to

those situations in which penalty phase procedures

operate to diminish the jury's sense of responsibility for

its decision to impose death, Caldwell, or where the

sentencer's discretion is not "suitably directed and

limited so as to minimize the risk of wholly arbitrary

and capricious action." Zant v. Stephens, 462 U.S. 862,

A-106

874, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983). After

Payne, reliability concerns that attach to matters of

evidence during the penalty phase are considered

under a due process rubric. "In the event that evidence

is introduced that is so unduly prejudicial that it

renders that trial fundamentally unfair, the Due

Process Clause of the Fourteenth Amendment provides

a mechanism for relief." Payne, 501 U.S. at 825, 111

S.Ct. at 2608. Simmons's Eighth Amendment

argument is denied.

Simmons claims that counsels’ alleged

ineffectiveness resulted in a violation of his right to

due process. The test of a due process violation, as the

preceding paragraph notes, is whether the evidence is

so prejudicial that it renders the trial fundamentally

unfair.

The evidence in this case did not offend the due

process clause. Though an Eighth Amendment case,

Payne makes clear that "there is nothing unfair about

allowing a jury to bear in mind that harm [the

defendant's acts had caused] at the same time as it

considers the mitigating evidence introduced by the

defendant." Jd. at 826, 111 S.Ct. at 2609.

It is an affront to the civilized members of the

human race to say that at sentencing in a capital case,

a parade of witnesses may praise the background,

character and good deeds of Defendant ... without

limitation as to relevancy, but nothing may be said

that bears upon the character of, or the harm imposed,

A-107

. upon the victims.

Id., quoting State v. Payne, 791 S.W.2d 10, 19

(Tenn.1990). Moreover, Justice O'Connor's concurring

opinion suggests that in light of “the jury's unavoidable

familiarity with the facts [of the murder]," witness

testimony at the sentencing phase describing the loss

suffered by the victim's family does not violate due

process where the statements of the witnesses do not

inflame the passions of the jury beyond the passion

that the facts of the crime itself inflames. Payne, 501

U.S. at 832, 111 S.Ct. at 2612 (O'Connor, J.,

concurring).

Steven Crook spoke about his wife's fear of

heights and the terror that she must have felt. No one

doubts that the jurors were moved by this testimony.

But the jurors had already heard from Christopher

Simmons himself about her abduction; the way she

was bound; the manner in which she was thrown into

the minivan; her struggle to free herself; Simmons's

use of her own clothing and personal items to hog tie

her; his decision to use duct tape to cover her face,

restrict her breathing, and blind her. The jury would

have known that she knew she was on railroad tracks

because she had freed herself earlier and realized that

a trcctle lay ahead. As human beings, the jurors would

have imagined the scene and felt what Shirley Crook

felt as she struggled and fought for breath and was

thrown and fell to her death. We doubt that Steven

Crook could inflame the jurors more than Christopher

Simmons did in his confession of the murder.

Kimberly Hawkins's testimony described the

A-108 : A-109

During the penalty phase closing argument,

defense counsel argued

impact of the manner of her mother's death on her. She

did not describe the crime. She described the

nightmares that came to her as part of her description

(not fully set out in this opinion) of the broad impact

her mother's murder had on her ability to work and

rest and enjoy life. This, too, would have affected the

jury. But this is "evidence of the specific harm caused

by the defendant." Payne, 501 U.S. at 825, 111 S.Ct. at

2608. In this case, it is also evidence that balances the

mitigation evidence put on by Simmons at the penalty

phase--that his death at the hand of the state would

injure his family. " ‘[J]ustice, though due to the

accused, is due to the accuser also. The concept of

fairness must not be strained till it is narrowed to a

filament. We are to keep the balance true.'" Payne, 501

U.S. at 827, 111 S.Ct. at 2609, quoting Snyder v. -

Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78

L.Ed. 674 (1934).

Likewise, Purdy Mitchell's testimony spoke of

the Shirley Crooks family's loss. This, too, is harm

caused by the murder of which the jury may know. We

do not find that her reading of the prayer rendered the

sentencing phase of the trial fundamentally unfair

when considered in the context of the statutory and

nonstatutory mitigating and aggravating statutory

circumstances presented by both parties during the

penalty phase.

The motion court did not err in overruling the

Rule 29.15 motion on these points.

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I'll submit to you this: If you, as

you sit here today, say to yourself, "You

know, as far as Chris Simmons is

concerned, the State's right; who cares

about age; who cares about no significant

history; who cares about the deeds he's

done." You basically may say to yourself,

"I don't care about Chris Simmons at all,"

and I'm not at all saying to you that

that's the feeling you should have. You've

heard all the good things that were said

about a seventeen year old kid. Ladies

and gentlemen of the jury, if, in fact, you

do feel that way about Chris Simmons,

then I'm not asking you here to render a

life sentence for this kid over here. I'm

asking you to give a life sentence for his

family. Family and friends that basically

have indicated to you, and shown you

that a life sentence that you render is not

the same in their eyes as the death

penalty.

Now, there's no question the State

will come up here and say, "Well, you

know, Chris Simmons is the one that did

everything to his family." Don't you feel

responsible for that situation, ladies and

*188 gentlemen of the jury, but all I'm

saying to you is consider his family.

Consider his brothers. Consider the fact

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that just the fact that he's alive makes a

difference to some people, and that, ladies

and gentlemen of the jury, is certainly a

mitigating circumstance that you should

consider.

In response, the state's counsel argued

Look at what his friends and family told

you. Isn't that scary? Look at how he

repaid their love. Look at what he's done

to them, and they're asking you to spare

his life so he can remain in prison as a

constant reminder to them of the acts he

did on that night. Show some mercy to his

family, give him death. Look at his

family. Look at his little brother. Kenny

said it all. Someday I want to grow up to

be just like him. To be just like him.

Spare those kids of that.

Simmons's counsel did not object. Simmons

insists this is ineffective assistance of counsel and

contends that this argument offends the due process

clause as interpreted by the Eighth Circuit's decision

in Antwine v. Delo, 54 F.3d 1357 (8th Cir.1995). The

state says that the prosecutor's words are acceptable

retaliation. Both arguments are incorrect.

Although we doubt the rectitude of the Eighth

Circuit's due process conclusions in Antwine,° the

application of that court's due process analysis in this

*See Antwine v. State, 791 S.W.2d 403 (Mo. banc 1990).

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case does not lead to a reversal.

In Antwine, the state's lawyer argued that (1)

the death by gas chamber was instantaneous, (2) that

the taxpayers of the state ought not be required to

support Antwine for "the next 50 years" in prison, and

(3) it would be more humane to put Antwine to death

"so that his brother can get on with his life, and so that

the two children can get on with their lives" than to

require them to think about their brother/father in

prison every day. Jd. at 1362- 3. The Eighth Circuit

found it constitutionally significant that death by

cyanide inhalation was not instantaneous and, as a

result, the state's first comment diminished the jury's

sense of responsibility by assuring Antwine a quick

and easy death. "On this basis [the Eighth

Amendment] alone, we hold that Antwine's sentence is

constitutionally invalid." Jd. at 1362.

After announcing this sufficient basis for its

holding, a "separate basis for our holding" follows. Jd.

at 1364. The Eighth Circuit characterized the

additional issue it addressed as whether the latter two

comments (summarized in the preceding paragraph),

“combined with the misleading and unsupported

description o* instantaneous death, were prejudicial

enough to reuder the entire sentencing proceeding

fundamentally unfair and a violation of Antwine's

right to due process." (Emphasis added.) Jd. at 1363.

Continuing, Antwine embraced a due process

analysis that requires consideration of four factors.

We must: (1) measure the type of

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prejudice that arose from the argument;

(2) examine what defense counsel did in

his argument to minimize the prejudice;

(3) review jury instructions to see if the

jury was properly instructed; and (4)

determine it there is a reasonable

probability that the outcome of the

sentencing phase would have been

different, taking into account all of the

aggravating and mitigating

circumstances.

Id. at 1363.

Under the Antwine rubric, the state's comment

was improper--even as retaliation--because " ‘it does

not reflect the properly considered circumstances of the

crime or the character of the individual.’ " Antwine, 54

F.3d at 1364, quoting Blair, 916 F.2d 1310, 1323 (8th

Cir.1990). Using the Eighth Circuit's language, the

state's comment here was also "prejudicial,"” but not

necessarily outcome dete

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