# Appendix — Roper v. Simmons

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0716%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 551

## Text

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

A-|
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

A-2

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

—_— ein Pes ee eRe Bare

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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

He. ee Fae One

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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

a

-~

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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

A-19

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

A-20

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

A-21
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

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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.”

A-77

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

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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 th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0716%3A03. Public record. Not legal advice.