Bifurcated Jury Trials in Non-Capital Criminal Cases



by James R. Wyrsch¹

The Missouri General Assembly recently passed legislation providing for bifurcated trials in certain non-capital criminal cases, whereby the jury will determine the sentence after a finding of guilt. This legislation represents a substantial change from prior law, which provides that the jury sets the sentence, but does not do so in a bifurcated proceeding. This article discusses the various issues presented by this legislation.

I. Introduction

Missouri has remained committed to being one of the handful of states where the jury will assess and declare punishment in non-capital cases. As a result, issues have arisen as to what evidence should be admitted on the question of punishment. For example, in State v. Trainer² the Supreme Court of Missouri rejected defendant's argument that his honest belief, based on a newspaper clipping, that his first wife had been divorced two days prior to his marriage to another woman was a defense to bigamy. But the Supreme Court said "that the evidence of belief was properly admitted for the consideration of the jury in fixing the measure of punishment."³ This 1911 ruling of the Supreme Court of Missouri would indicate that Missouri courts would admit "any evidence relevant to sentencing."⁴ On June 27, 2003, Governor Holden signed Senate Bill 5 (hereinafter "SB 5"), which statutorily revises criminal procedure and addresses the evidence to be admitted on the issue of punishment.⁵

SB 5 revises trial procedure for felony and misdemeanor trials where the jury is to assess and declare punishment. A bifurcated trial is now mandated in every case where the jury is to assess and declare the punishment, and in the second stage of the trial "[e]vidence supporting or mitigating punishment may be presented."⁶ "[This] evidence may include, . . . [at] the discretion of the court, . . . impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant."⁷ Ninety years after the Trainer decision, Missouri has statutorily created a jury sentencing scheme that admits any evidence relevant to sentencing without the evidentiary limitations imposed on the parties in a criminal trial conducted in one proceeding. The bifurcated scheme, perhaps, will allow the jury to hear in the second stage information that would not be admissible in the first stage. But, as discussed herein, the appellate courts, in reviewing death penalty cases, have imposed limitations on second stage proceedings. These limitations may be applicable to proceedings commenced under Senate Bill 5.

II. Senate Bill 5

Before 2003, § 557.036, RSMo provided:

2. The court shall instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as a part of their verdict, unless:

(1) The defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt; or

(2)The state pleads and proves the defendant is a prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender as defined in section 558.016, RSMo, a persistent sexual offender as defined in section 558.018, RSMo, or a predatory sexual offender as defined in section 558.018, RSMo.⁸

Because of the emergency provisions of SB 5, this procedure changed dramatically when Governor Holden signed the legislation on June 27, 2003. The 2003 revision to § 557.036 established the bifurcated trial proceeding for non-capital cases and reads:

1. Upon a finding of guilt upon verdict or plea, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly.

2. Where an offense is submitted to the jury, the trial shall proceed in two stages. At the first stage, the jury shall decide only whether the defendant is guilty or not guilty of any submitted offense. The issue of punishment shall not be submitted to the jury at the first stage.

3. If the jury at the first stage of a trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant. Rebuttal and surrebuttal evidence may be presented. The state shall be the first to proceed. The court shall instruct the jury as to the range of punishment authorized by statute for each submitted offense. The attorneys may argue the issue of punishment to the jury, and the state shall have the right to open and close the argument. The jury shall assess and declare the punishment as authorized by statute.

4. A second stage of the trial shall not proceed and the court, and not the jury, shall assess punishment if:

(1) The defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt; or

(2) The state pleads and proves the defendant is a prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender as defined in section 558.016, RSMo, a persistent sexual offender as defined in section 558.018, RSMo, or a predatory sexual offender as defined in section 558.018, RSMo.

If the jury cannot agree on the punishment to be assessed, the court shall proceed as provided in subsection 1 of this section. If, after due deliberation by the jury, the court finds the jury cannot agree on punishment, then the court may instruct the jury that if it cannot agree on punishment that the court will assess punishment.⁹

The 2003 change to § 557.036 was not in the text of SB 5 when it was introduced. In the text of the bill pre-filed by Senator Harold Caskey on December 1, 2002, the revision to § 557.036 was as follows:

1. Upon a finding of guilt upon verdict or plea, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly.¹⁰

As explained by the distributed study, "Arresting the Overflow," that accompanied Senator Caskey's announcement that SB 5 had been prefiled in the Missouri legislature:

It has long been my conclusion that the State of Missouri can no longer afford the expense, both socially and financially, of free-wheeling prison incarceration for our criminals regardless of their crimes. I believe the findings of this report illustrate that we are currently imprisoning large numbers of offenders who pose no violent threat to society and who too often find their first brush with the law resulting in prison sentences.¹¹

As pre-filed, SB 5 would have curtailed the "free-wheeling prison incarceration" by "allow[ing] judges the leeway to impose sentences that make sense and that are in the offender's best interest as well as the public's best interest."¹² In reviewing the impact of mandated prison terms, the report noted, "The Corrections budget in seven years has increased by $219,070,589 or by 61%."¹³

By the time SB 5 was perfected on April 9, 2003, a revision to § 557.036, RSMo, that provided for bifurcated trials was included in the legislation. The concept of judge sentencing for the criminal defendant had been abandoned in favor of the bifurcated trial. An examination of the fiscal notes prepared as SB 5 moved through the legislature indicates that no monetary sum was included for the adoption of the new procedure. Regardless of the number attributed to the financial impact of the bifurcated procedure, the adoption of a two-stage proceeding is significant for the practicing attorney and the judge presiding at the trial.

III. Bifurcated Proceedings

As discussed in detail in this article, the new procedure will implement the following:

• Changes to voir dire;

• Changes to the forms for instructing the jury; and

• Evidence to be presented during the penalty phase (including changes to discovery to include requests for evidence used to enhance punishment and mitigate punishment).

The new procedure will also implement the following considerations:

• Changes to fee setting by lawyers because of the possibility of two trials for every criminal charge rather than one;

• Changes to the scope of representation by lawyers, including the possibility of hiring a mitigation specialist;¹⁴ and

• Consideration of additional experts to be hired (e.g. a defense expert to prepare an additional pre-sentence investigation report).

A. Voir Dire

The possibility of a second stage proceeding if the defendant is found guilty mandates consideration by the judge and the attorneys in selecting a jury. Beginning with voir dire, the judge and the attorneys will need to inform the venire panel of the jurors' role in sentencing after a finding of guilt. In reviewing the imposition of a death sentence, the United States Supreme Court has ruled that the sentence must be reversed if the role assigned to the jury by local law is improperly described to the jurors such that the jurors may feel less responsible for the sentencing decision.¹⁵

In State v. McClanahan,¹⁶ the Missouri Court of Appeals explained that a motion for reduction of sentence under Rule 29.05 might be used to reduce punishment when the evidence admitted on the issue of punishment was improper.¹⁷ The McClanahan court noted that this issue might also be raised in the motion for a new trial.¹⁸ Interestingly, the dissent in that case noted the following: "There is little authority for an appellate court to review a sentence merely because improper evidence was admitted, where the issue has not been preserved as to the sentence."¹⁹ The adoption of SB 5 will force the appellate courts to review the admission of improper evidence in the punishment phase and the directions given to the jury about punishment.

MAI-CR 3d 300.03 is the form for the instruction to be read to the jury before punishment voir dire in a capital case. There is currently no form instruction for voir dire for the punishment phase in a non-capital case. It will be necessary for the attorneys to consider the appropriate explanation for voir dire examination.

In response to the new system, the Missouri State Public Defender's Office has discussed voir dire in explaining SB 5 to public defenders. After noting that voir dire on punishment usually will follow general voir dire, the public defender is cautioned as follows:

Generally, voir dire questions on punishment will remain similar to those questions asked prior to the passage of SB 5: [t]he range of punishment, the ability of the juror to give due consideration to the full range of punishment;[sic] and the ability of the potential juror to follow all instructions.²⁰

With this general directive, additional sample questions suggested by the public defender's office are as follows:

• What kinds of things would you want to know about what life is like in Mo's prisons in order to decide what kind of a sentence would be appropriate?

. . .

• Could you consider imposing a sentence of one day . . . ?

• Some people consider drug addiction a disease. Others consider it a moral failure. What do you think? Why?

. . .

• Do you think the victim/ a member of the victim's family [should] be seated on the jury? Why or why not?²¹

Regardless of the specific questions asked, voir dire under SB 5 may be different than it was under the single-stage proceeding. The additional questions that may be asked are as yet undetermined and parameters of questioning may vary according to the discretion of the trial court.

Moreover, it is important for defense counsel to note that Missouri law restricts the ability of the defense attorney from asking the venire panel about punishment, and then waiving jury sentencing. Specifically, § 557.036.4.1 requires the defendant, in writing, prior to voir dire, to waive jury sentencing.²² Because of post-conviction proceeding concerns, the cautious judge may want to make a record with the defendant and with his or her lawyer before accepting the signed waiver.

After the panel is selected, the judge reads to the jurors MAI-CR3d 300.06, the instruction that outlines for the jury panel the order of the trial. In a bifurcated trial, it is necessary to modify MAI-CR 3d 300.06.²³ Also, a cautionary instruction should be given to the jury if there is a recess between a finding of guilt and the punishment phase.²⁴ At this time, the judge should caution the jurors not to discuss the punishment before deliberations and not to listen to or see media coverage about the trial. In addition to these changes to the opening instructions, additional revisions were made to the other forms in the instructional book as discussed herein.

B. Revisions to the Approved Forms for Criminal Instructions

With this statutory change, all of the verdict directors in the Missouri Approved Instructions-Criminal (3d) were incorrect except for trespass in the second degree (an infraction) and murder in the first degree. Prior to 2003, the scheme of MAI-CR 3d was to instruct the jury on punishment. For example, the verdict director for assault in the second degree included this paragraph at the end of the verdict director:

If you do find the defendant guilty (under Count____) of assault in the second degree, you will assess and declare one of the following punishments: {Insert range of punishment as directed in MAI-CR 3d 304.02.}²⁵

The user of the form was directed to the appropriate general forms if punishment was not submitted to the jury.²⁶ The 304 Series of MAI-CR then included the specific range of punishment for a certain class of felony or misdemeanor and directed the user to delete the punishment clause of the verdict director if defendant was a prior offender, persistent offender, dangerous offender, persistent misdemeanor offender, prior and persistent drug offender, or repeat alcohol-related offender.²⁷

In response to the bifurcated trial procedure mandated by SB 5, the Supreme Court of Missouri on June 27, 2003, ordered that new forms be used and existing forms revised.²⁸ The verdict forms included in the 304 Series of MAI-CR 3d were revised. Specifically, the general verdict form was revised to submit the punishment to the jury after a finding of guilt.²⁹ There are now provisions in this form for the jury being unable to agree on punishment and for identifying the offense that the defendant has been found guilty of committing in the first stage.³⁰ Revisions were made to MAI-CR 3d 304.44 also. This form of verdict will be used at the first stage of the proceeding when defendant's guilt is submitted to the jury or if the jury does not have punishment because the defendant waived jury sentencing or is a repeat offender. The exceptions to this general rule are specific crimes with special punishment considerations: first-degree murder, felony murder, and armed criminal action.³¹

In addition to the forms that were revised, new forms were created because of the passage of the bifurcated trial proceedings. The 305 Series is the chapter in MAI-CR 3d that contains the forms on the bifurcated trial proceedings. The opening instruction is in MAI-CR 3d 305.01. This instruction tells the jury that in the second stage of the proceedings it will be the jurors' duty to impose the punishment.³² This one instruction will inform the jury of the punishment for each count in the charge that the defendant was found guilty of committing. The instruction should be numbered consecutively to the last numbered instruction given in the first stage.

In the guilt phase of the trial, MAI-CR 3d 302.04 instructs the jury on the burden of proof and reasonable doubt. It is the fourth instruction given to the jury and is followed by the fifth instruction patterned after MAI-CR 3d 302.05 that explains to the jury that "the verdict must be unanimous." In the 305 Series only MAI-CR 3d 305.03 addresses the standards that the jurors are required to apply. In MAI-CR 3d 305.03, the jurors are told that they "cannot return any verdict as the verdict of the jury unless all twelve jurors agree to it." There is no instruction on the burden of proof in the second stage. Under the reasoning of the United States Supreme Court in McMillan v. Pennsylvania,³³ a sentencing consideration need only be proved by a preponderance of the evidence.³⁴

Moreover, after the United States Supreme Court addressed the right to a jury finding under the Sixth Amendment in Apprendi v. New Jersey,³⁵ the mandated role of the jury has changed. With the bifurcated procedure statutorily created for non-capital cases, perhaps the jury should decide in the second stage whether the defendant has prior convictions of domestic assault.³⁶ (Compare, for example, the statutory language in the graded offense of domestic assault in the third degree, § 565.074, RSMo 2000, with prior findings of guilt for intoxication-related traffic offenses, § 577.023, RSMo 2000.)³⁷ The 305 Series does not address any of these constitutional concerns. The United States Supreme Court opinion in Blakely v. Washington,³⁸ extending the holding in Apprendi to sentencing considerations, may require revisions to the 305 Series.

The Notes on Use to this opening instruction for the punishment phase make it clear that the jury should be informed of the fine and of imprisonment in the county jail or the department of corrections.³⁹ In other words, the punishment that is included in MAI-CR 3d 305.01 will be the punishment that was added to the verdict director before SB 5. In general, a fine may be assessed as punishment for C or D felonies⁴⁰ or A, B, or C misdemeanors.⁴¹ Section 560.026, RSMo 2000, specifically discusses impositions of fines.

There are statutory limitations on the imposition of a fine in addition to incarceration, and a statutory directive that the court should consider the financial resources of the defendant.⁴² The specific criminal statute should be consulted to determine if there are special provisions on fines.⁴³ If special punishment provisions apply to the crime, the instructions and verdict forms in the second stage need to be modified. It is clear under Missouri law that the trial court cannot sentence the defendant to a higher term of incarceration than the jury did, or assess a term of imprisonment when the jury recommended a fine.⁴⁴ Under Rule 29.05, the trial court can reduce the punishment assessed by the jury. An argument to the judge may be successful under Rule 29.05, although not persuasive to the jury.

The selection of the remainder of the instructions to be given in the second stage will depend on whether evidence will be presented in the second stage. If no evidence is presented in the second stage, then the next instruction read to the jury will be MAI-CR3d 305.03 on verdict mechanics.⁴⁵ The Notes on Use explain the order of the instructions in the second stage and the packet to be given to the jury.⁴⁶ In addition to the instructions in the 305 Series, the Notes on Use make it clear that instructions numbered 1 (MAI-CR 3d 302.01 on the duties of the judge and jury)⁴⁷ and 2 (MAI-CR 3d 302.02 on evidence presented and rulings of the court)⁴⁸ from the guilt phase of the trial should be given to the jury in the penalty phase. Other instructions in addition to those included in the 305 Series may be applicable. One example is the instruction on the right of the defendant not to testify.⁴⁹ Two Supreme Court of Missouri cases - State v. Storey⁵⁰ and State v. Mayes⁵¹ - ruling that it was error not to modify MAI-CR 3d 308.14 for the second stage of a first degree murder case involving the death penalty - require the giving of an instruction on the right of the defendant not to testify in a bifurcated proceeding.⁵²

If evidence is presented at the second stage, additional instructions in the 305 Series will be given. In addition to an instruction modeled after MAI-CR 3d 305.01 informing the jury of the punishment range for each count with a finding of guilty, MAI-CR 3d 305.02 will be given if there will be evidence introduced in the second stage. This instruction will explain the order of the proceedings to the jury, and the Notes on Use suggest that the court should hold a hearing prior to starting the second stage to determine the evidence, if any, the parties intend to introduce.⁵³ At this time, any motions in limine directed at the second stage proceedings may be considered.⁵⁴ The only instructions from the first stage that will automatically be given to the jury are instruction number 1 on the duties of the judge and jury, MAI-CR 3d 302.01, and instruction number 2 on rulings of the court, MAI-CR 3d 302.02. Other instructions, with appropriate modification, may be applicable.⁵⁵ These additional instructions, if any, will be given to the jury between MAI-CR 3d 305.03 and MAI-CR 3d 305.04.

MAI-CR 3d 305.04 will be the last instruction given to the jury before arguments of counsel. It is patterned in part after MAI-CR 3d 302.06.

The Supreme Court of Missouri withdrew the instructions for the penalty phase trial in Chapter 313 on June 27, 2003, because of the adoption of the 305 Series, which will replace the specific instructions for non-death penalty homicides. In fact, the directive in MAI-CR 313.54 Notes on Use 3 that instructs the court that a "side may argue the case even if the other side waives argument," was not included in the 305 Series.⁵⁶

After "due deliberation," the judge will fix punishment if the jury is unable to agree or decide on punishment.⁵⁷ MAI-CR 3d 305.07 is the instruction that is to be given to the jurors after "due deliberation" if they cannot agree on punishment. It will be read to the jury and returned in writing to them. No specific length of time for deliberations is specified. The verdict form that will accompany the instruction is found at MAI-CR 3d 304.40 (e).

C. Evidence to be Presented During the Penalty Phase

SB 5 revised § 557.036 to provide that "[e]vidence supporting or mitigating punishment may be presented" in the penalty phase. The directive is explained as follows: "Such evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant."⁵⁸ The phrase "within the discretion of the court" may mean that the rules of evidence control the admission of the evidence in the penalty phase, too.⁵⁹

The sentencing process must satisfy the requirements of the Due Process Clause.⁶⁰ Thus, the defendant must be provided the opportunity to deny or explain the information that forms the basis for the sentence.⁶¹ Moreover, a defendant has a due process right to be sentenced only on information that is accurate.⁶²

The question remains as to whether court decisions interpreting the death penalty in Missouri are applicable when the jury has no charge to find an "aggravating circumstance" beyond a reasonable doubt.⁶³

1. Victim-Impact Evidence

In addition to including a specific reference to victim-impact evidence in the sentencing phase of the trial, SB 5 also revised the privileges and rights of victims of a criminal offense. Section 595.209 was amended by SB 5 to specifically provide that a victim has the right to be present at all criminal proceedings where the defendant has the right to be present, "even if the victim is called to testify or may be called to testify as a witness in the case."⁶⁴ Thus, the victim's presence during the trial will not keep the victim from testifying. This is true even if the rule against witnesses being present in the courtroom during the proceedings has been invoked.⁶⁵ Also, the definitions of "victim" in § 595.200(a), RSMo Supp. 2000, "includes the family members of a minor, incompetent or homicide victim."

SB 5 codifies Missouri law that the scope of a victim's presentation at the sentencing phase is within the trial court's discretion.⁶⁶ In Figgins v. State,⁶⁷ the trial court allowed a representative from MADD (Mothers Against Drunk Driving) to testify, over objection, before sentencing on assault in the second degree in connection with an automobile accident. Although the trial court allowed the representative to testify, it noted in the findings of fact in the post-conviction relief proceedings that it did not consider the statements when handing down the sentence.⁶⁸ The appellate court noted that a trial "judge may appropriately conduct an inquiry, broad in scope, largely unlimited in nature either as to the kind of information he may consider, or the source from which it may come."⁶⁹ The appellate court held that the trial court may allow persons other than the victim or relatives of the victim to testify."⁷⁰

Although Mo. Const. art. I § 32 articulates certain rights for victims,⁷¹ the defendant's constitutional rights to due process of law and confrontation of witnesses must be protected. In reviewing a challenge to victim impact evidence after a guilty plea and a sentence of death, the Supreme Court of Missouri in State v. Roll summarized the law as follows:

Victim impact evidence violates the Constitution only if it is so "unduly prejudicial that it renders the trialfundamentally unfair." State v. Kreutzer, 928 S.W.2d 854, 878 (Mo. banc 1996), citing Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 2608, 115 L.Ed.2d 720 (1991). In Payne, the United States Supreme Court was not confronted with family members' opinions about the appropriate sentence. Payne, 501 U.S. at 830 n.2, 833 (O'Connor, J., concurring), and 835 n.1 (Souter, J., concurring). The state here concedes that such opinions - by both sides below - are inadmissible under Payne, § 565.030.4, and § 595.209.1(4). Even if the family's requests for the death penalty were error, Roll has failed to show prejudice that constitutes fundamental unfairness. A judge determined Roll's sentence. This Court presumes that inadmissible evidence is not prejudicial because judges are presumed not to consider improper evidence when sentencing a defendant. Richardson, 923 S.W.2d at 319. No clear error has been shown.⁷²

In order to preserve a claim that the trial court erred in not limiting victim impact evidence, the defense should make specific objections when the evidence is offered.⁷³ Indeed, defendant's counsel may want to file a motion in limine prior to trial. In death penalty cases, courts have sustained motions: to require the government to reduce all victim impact evidence to writing; to require the "court [to] weigh each specific point of the proffered testimony to ensure that its probative value is not substantially outweighed by the risk of undue prejudice or misleading the jury," and to determine "the relevance of the proffered testimony;" to require "the court [to] inform the victim's family that" they will not be allowed "to testify if the person is unable to control his or her emotions;" and to require the court "to remind the victim's family that" any testimony "concerning the victim's family members' characterizations and opinions about the defendant, the crime, or the appropriate sentence" will not be permitted.⁷⁴

2. History and Character of the Defendant

In a review of appellate decisions of death penalty cases, the Supreme Court of Missouri in State v. Thompson makes it clear that "both the state and the defense are given wide latitude to introduce any evidence regarding the defendant's character that assists the jury in determining the appropriate punishment."⁷⁵ This wide latitude is not limited by the "general rule excluding character evidence" in a criminal prosecution.⁷⁶ Generally, the evidence that may be introduced by the prosecution involves evidence of unconvicted misconduct.

As explained by the Supreme Court of Missouri in State v. Thompson, the wide latitude to admit evidence of prior specific bad acts is available because "[t]he decision to impose the death penalty, whether by a jury or a judge, is the most serious decision society makes about an individual, and the decision-maker is entitled to any evidence that assists in that determination."⁷⁷ Until the courts review the importance of the history and character of the defendant in assessing and declaring punishment for a non-capital case, this remains an open question.

If the wide latitude of the death penalty cases is applicable to the sentencing phase of a non-capital case, the facts that the state intends to introduce in the penalty phase must be disclosed to the defense. The state should provide the defendant with notice of the intention to introduce the evidence. As explained by the Supreme Court of Missouri in State v. Thompson, the requirements of notice are as follows:

Upon request, the state must disclose evidence of unconvicted bad acts, even if that evidence has not been reduced to a writing or other record discoverable under Rule 25.03.⁷⁸

Consequently, if a bifurcated proceeding is a possibility, then the defense should make a specific request for disclosure of any facts of unconvicted bad acts, and the state should disclose any of this information regardless of whether the information is reduced to writing. This specific request for discovery will not be covered by the general rules of discovery, and the defense should consider a specific request for evidence to be used in rebuttal, evidence favorable on the issue of punishment, juvenile records, and a specific request, similar to a death case, requesting information the state intends to rely on in the punishment phase. If the body of death penalty law controls on the question of notice before unconvicted misconduct is admissible in the punishment phase, then the trial court may exclude the admission of this evidence, although it may be relevant to the defendant's history and character, if the defense has not had notice from the state.⁷⁹

State v. Thompson is also instructive on when the appellate court may reverse for plain error when the evidence of prior misconduct is introduced without notice and without objection. In Thompson, the defendant's ex-wife testified in the penalty phase about an incident where "defendant shot someone he had seen 'messing with [his] car.'"⁸⁰ The defense did not object. The Supreme Court of Missouri ruled that the failure to disclose this evidence to the defense was error.⁸¹ Under the facts of the case, the Thompson Court held that the admission of the unconvicted crime evidence was plain error under the totality of the circumstances of the case: the shooting was a significant act of violence; it was different in kind from the domestic abuse presented to the jury; defendant's use of a deadly weapon was similar to the conduct charged by the state; "the shooting suggest[ed] an unreasonable territoriality;" and the state's closing argument asked the jury to consider Thompson's "history of violence" and to consider the death penalty because Thompson had "been victimizing other people, manipulating other people, all his life."⁸² In a bifurcated proceeding under SB 5, an appellate court may reverse for failure to disclose evidence of uncharged misconduct. The determination of the remedy may be a new penalty phase or a new trial.

3. Nature and Circumstances of the Offense

Prior to the passage of SB 5, Missouri law directed the court to decide the appropriate sentence for the criminal defendant based on the "the nature and circumstances of the offense and the history and character of the defendant."⁸³ For some offenses, the consequences of a finding of guilt or a plea of guilt include the requirement that a defendant serve 85% of the sentence.⁸⁴ The appellate courts have recognized that the confusing issue of punishment does not have to be fully explained to the jury.⁸⁵ SB 5 did not revise this subsection. However, the direction to consider the nature and circumstances of the offense was added to the information to be considered by the jury at the punishment phase of the trial.⁸⁶ It will be necessary for the courts and the litigants to resolve the collateral issues that the jurors should be aware of before recommending punishment. For example, in addition to the statutory requirement of the defendant having to serve 85% of a sentence under § 558.019, RSMo Supp. 2003, as amended by the legislature in 2004, the litigants will need to consider the following: registration of a sexual offender under §§ 589.400 to 589.425, RSMo Supp. 2003, as amended by the legislature in 2004; mandatory consecutive sentences under § 558.026.1, RSMo 2000; the court's ability to grant probation, including to a defendant found guilty of one of the seven deadly sins[now 15 deadly sins]⁸⁷ under § 558.019, RSMo Supp. 2003 as amended by the legislature in 2004; and the power of the court to grant shock probation under § 559.115, RSMo Supp. 2003. In addition to these statutory restrictions, sentencing recommendations⁸⁸ and parole guidelines may be implicated.

In reviewing the punishment stage of a capital case, the Supreme Court of Missouri has consistently held that the jury should have as much information as possible when it makes the sentencing decision. Consequently, the following cases have affirmed advising the jury of the nature and circumstances of the offense in the punishment phase of a capital trial.

A. Deterrence

In State v. Amrine,⁸⁹ the Supreme Court of Missouri held that it was not error to admit during the punishment stage of trial evidence from the testimony of a department of corrections official on the deterrent effect of the death penalty in the unique setting of a correctional institution (which otherwise violates the constitutional rights of a defendant) in cases where the aggravating circumstance is that the murder was committed by a person in lawful custody in a place of lawful confinement. The Court explained the holding as follows:

Evidence pertaining to the problem of violence in the correctional facility where the murder occurred and the deterrent effect of the death penalty in that unique environment unfamiliar to jurors, therefore, is relevant in cases such as this.⁹⁰

In reaching this conclusion, the Court explained its holding in State v. Gilmore.⁹¹ In Gilmore, the defendant had requested funds to hire a professor of sociology who would have testified to the lack of deterrent value of the death penalty.⁹² The Court rejected the defense argument on appeal by noting the following: "[T]he trial court's decision to refuse funds for the employment of an expert witness, whose testimony was irrelevant to the issue at hand, was not erroneous."⁹³

The Supreme Court of Missouri in State v. Amrine distinguished its opinion in State v. Gilmore as follows:

In Gilmore, we found that the proposed testimony of sociologist James Gilsanin on the general deterrent value of the death penalty would have been irrelevant and that the court did not err in refusing to appropriate funds for the defendant to employ Dr. Gilsanin as an expert witness. In so doing we noted: "it is apparent from defendant's motion that Dr. Gilsanin's testimony would not have focused on the specifics of the defendant's case and, therefore, would not have assisted the jury in imposing a rational sentence."⁹⁴

In so ruling, the Court refused to grant relief to Amrine "under the plain error doctrine."⁹⁵ Consequently, in a bifurcated proceeding, it would appear that the trial court might admit specific evidence of deterrence, but exclusion of general evidence of deterrence is not plain error. The guidance to the practitioner for bifurcated trial in non-capital cases may be minimal because of the Supreme Court of Missouri's reliance on the death penalty statute and aggravating circumstances to explain the Court's holding.⁹⁶ In the second stage of a criminal trial, where the jurors' only charge is assessing and declaring punishment without a required finding of an aggravating circumstance, it is unclear whether evidence of deterrence would be admissible.

B. Hearsay

In State v. Phillips,⁹⁷ the Supreme Court of Missouri, following the U.S. Supreme Court's opinion in Green v. Georgia, reversed the penalty phase of a capital case because of the trial court's failure to admit the hearsay statements of a co-actor.⁹⁸ The Phillips Court ruled as follows:

Following Green, we conclude that the facts constitute substantial reasons to assume the reliability of the hearsay statements and that admission of Hagar's testimony during the penalty phase would be proper. As stated, a new penalty phase is required to entertain this evidence.⁹⁹

The Supreme Court of Missouri concluded that the exclusion of the reliable hearsay evidence that was relevant to the depravity of the defendant in the killing from the punishment phase of the trial was a violation of the defendant's due process rights.¹⁰⁰ Similar reasoning may be applicable to the bifurcated trials of non-capital cases.

However, in State v. Brown,¹⁰¹ the Supreme Court of Missouri ruled that the trial court did not abuse its discretion in "refus[ing] to allow [the defense attorney] to read into evidence a letter about [the defendant] that was written by his brother" who was serving in Saudi Arabia in the United States Army.¹⁰² The court stated, "The determination of reliability is left to the trial court judge who was uncertain as to the authenticity of the letter."¹⁰³

Similarly, the Brown Court affirmed the trial court's decision not to allow the defense expert to testify about what other people told her when these statements had not been the basis of an expert opinion.¹⁰⁴

In State v. Wise,¹⁰⁵ however, the Court affirmed the trial court's exclusion of a letter written by a department of corrections supervisor during defendant Wise's prior incarceration.¹⁰⁶ The Court reasoned that the exclusion of the cumulative evidence concerning the defendant's talents in music, poetry, and writing was proper because the credibility of the evidence was a "slight consideration."¹⁰⁷ Defendant's failure to establish a proper foundation did not concern the Supreme Court.

These cases concerning the punishment phase of a death penalty case would indicate that, if the Green v. Georgia test is met, hearsay evidence might be admissible in the punishment phase of the trial. However, if the maximum punishment to be imposed is a year in the county jail, the due process concerns may be different.

In addition, Crawford v. Washington¹⁰⁸ holds that hearsay evidence offered by the prosecution that is "testimonial" in nature if the witness is unavailable may be excluded as violative of the defendant's constitutional right to confront witnesses. The Crawford case may be construed to impose significant limitations upon the use of hearsay evidence by the prosecution in non-capital sentencing proceedings.

In addition to deciding the admissibility of deterrence evidence and hearsay evidence in the punishment phase of the trial, Missouri courts have had to resolve several evidentiary issues in the second stage of a capital case. For example, in State v. Owsley,¹⁰⁹ the trial court's exclusion of 15 photographs of the defendant depicting scenes from his childhood was affirmed.¹¹⁰ The trial court excluded the 15 photographs on relevancy objections but admitted one photograph. The Supreme Court explained that the ruling may have been different if the photographs depicted a "disadvantaged background" or that the defendant "had good character."¹¹¹

IV. Waiver of Jury Sentencing

As the Missouri courts develop evidentiary guidelines for the bifurcated proceedings of criminal trials, the death penalty cases may be consulted for guidance. Also, it is unclear what evidence will be permitted in the second stage under the statutory directive for the jury to consider the nature and circumstances of the offense. Perhaps the sentencing recommendations that the judge was directed to consider in SB 5 will be given to the jury for its consideration in punishment. Finally, it may be that some prosecutors will not charge the defendant as a prior and persistent offender so that the jury can assess and declare punishment. The prosecutor may believe, based on the prior acts of the defendant and under the facts of the particular case, that the punishment assessed and declared by the jury will be harsher than the punishment imposed by the judge without a jury recommendation. In this situation, and perhaps because of the unresolved legal questions of the bifurcated trial procedure, the defense attorney may consider advising the client to waive jury sentencing in writing before voir dire.¹¹²

V. Conclusion

The passage of Senate Bill 5 by the 2003 legislature demonstrates Missouri's historical commitment to the jury assessing and declaring punishment. The legal voices that articulate the body of death penalty law as guidance for the practitioner may offer the best answer to some of the questions raised by the bifurcated process in this state. However, death penalty law has a unique place in criminal jurisprudence, and the difference between a penalty of six months in the county jail and death may affect the appellate courts' rulings. Certainly the answers that were sufficient before 2003 will be challenged.

Addendum

On January 11, 2005, the Supreme Court of Missouri decided the case of State of Missouri v. Jaco, Case No. SC85594. The case affects some of the discussion in the text of the article. The Court held that § 557.036, RSMo Supp. 2003, was not unconstitutional, as the statute did not "require a jury to find facts beyond a reasonable doubt to impose a sentence that is within the unenhanced range of punishment for an offense." Moreover, the Court stated that the constitutional right to "due process does not mandate disclosure of penalty phase evidence or witnesses," although the Court noted that the state had provided notice for certain penalty phase witnesses. The Court held also that § 557.036 "does not unconstitutionally permit introduction of character evidence." "The Court . . . held that either side [in the penalty phase] may introduce evidence of the defendant's character . . . to help the jury assess punishment, even if that evidence constitutes unadjudicated bad acts." The Court also held that "section 557.036 is a procedural law that may be applied" even though the crime occurred prior to the amendment of § 557.036. The Court further held that § 557.036 is not unconstitutional, as it did not violate the separation of powers doctrine in that none of the rules of criminal procedure enacted by the Supreme Court addressed whether a two-phase trial is permitted in a non-death penalty case. Finally, the Court held that the trial court did not err in refusing to submit a non-MAI instruction that would have required the jury, among other things, to find beyond a reasonable doubt that aggravating circumstances exist to impose punishment in excess of 10 years that was within the unenhanced range of punishment for the offense.

Footnotes

¹ James R. Wyrsch is president of Wyrsch, Hobbs & Mirakian, P.C., Kansas City, and is a fellow of the American College of Trial Lawyers. The assistance of Charles Rogers, shareholder of Wyrsch, Hobbs & Mirakian, P.C. and Zhaoying Du, law clerk of Wyrsch, Hobbs & Mirakian, P.C., is appreciated. The very substantial assistance provided by Deborah Daniels, reporter for the Missouri Supreme Court Procedures Committee, is gratefully acknowledged.

² 134 S.W. 528 (Mo. 1911).

³ Id. at 529.

⁴ Arthur W. Campbell, Law Of Sentencing, § 9.11, (3rd ed 2004).

⁵ Section 557.036, RSMo Supp. 2003.

⁶ Section 557.036.3, RSMo Supp. 2003.

⁷ Id.

⁸ Section557.036.2, RSMo 2002.

⁹ Section557.036, RSMo Supp. 2003.

¹⁰ Id.

¹¹ Harold Caskey, Arresting the Overflow: Alternatives to Prison Overcrowding and Expansion in Missouri and the Need for Guided Judicial Discretion, 55 (December 26, 2002). (A copy of this document was distributed to each circuit judge in the State of Missouri and is on file with the author of this article). A November 2003 article in the New York Times noted that Missouri had joined other states in revising the "truth in sentencing" laws. Fox Butterfield, With Cash Tight, States Reassess Long Jail Terms, N.Y.TIMES, November 10, 2003, at A1. See, generally, Michael A. Wolff and Harold Caskey, "New Sentencing Recommendations Aim for Fully Informed Decisions," 60 J.Mo.Bar 307 (2004).

¹² Id. at 1.

¹³ Id. at 2 (emphasis in original).

¹⁴ Cf. American Bar Association: Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra Law Review 913, 999-1000 (2003).

¹⁵ Caldwell v. Mississippi, 472 U.S. 320, 328-329 (1985). In Caldwell, the United States Supreme Court reversed a death sentence on constitutional grounds because the prosecutor misled the jury as to the jurors' responsibility for the death sentence. Id. at 329. The Caldwell Court could not agree on the impact of California v. Ramos, 463 U.S. 992 (Cal. 1983). In Caldwell, the plurality stated that the California v. Ramos holding that "each State may decide for itself the extent to which a capital sentencing jury should [be informed] of postsentencing proceedings" was limited to "accurate or relevant" information. Caldwell, at 335. In a separate opinion, Justice O'Connor stated that the states were free to give capital juries "nonmisleading and accurate information regarding the jury's role in the sentencing scheme." Id. at 341. A separate minority was that the prosecutor's statements, taken as a whole, did not diminish the jury's sense of responsibility. Id. at 343-352. The sensitivity of the Court, however, to arguments addressing the role of the juror may be less in non-capital cases.

¹⁶ 954 S.W.2d 476 (Mo. App. W.D. 1997).

¹⁷ Id. at 481-482, distinguished on other grounds by State v. Barriner, 34 S.W.3d 139, 152 (Mo. banc 2000).

¹⁸ Id.

¹⁹ Id. at 483.

²⁰ Lew Kollias, Sample Motions in Response to Senate Bill 5, p. 4. The author wishes to thank Lew Kollias, Missouri State Public Defender System, Appellate/PCR Division Director, and Dan Gralike, Missouri State Public Defender System, Deputy Director, for sharing these materials with the author; a copy of the materials is on file with the author.

²¹ Id.

²² Section 557.036.4.1, RSMo Supp. 2003. There is a question as to whether the trial court may accept a waiver after voir dire has commenced on the ground that the statute addresses only the issue of when the court must accept the waiver.

²³ See 2004 Supplement to MAI-CR 3d.

²⁴ See MAI-CR 3d 300.04 and Notes on Use 4.

²⁵ MAI-CR 3d 304.02.

²⁶ MAI-CR 3d 304.08 and MAI-Cr 3d 304.02, Notes on Use 16. MAI-CR 3d 304.08 has since been withdrawn by order of Supreme Court of Missouri on June 27, 2003. See 59 J. Mo. Bar 198 (2003). See also MACH-CR 2.30 on the form for repeat offenders and the accompanying Notes on Use for an explanation of when the court and not the jury will assess and declare punishment. However, if the state chooses not to charge the defendant as a repeat offender, then the jury, and not the court, would assess and declare punishment.

²⁷ Id.

²⁸ Order of the Supreme Court of Missouri, 59 J. Mo. Bar 198 (2003).

²⁹ See MAI-CR 3d 304.44.

³⁰ Id.

³¹ See MAI-CR 3d 304.44.

³² MAI-CR 3d 305.01.

³³ 477 U.S. 79 (1986).

³⁴ Id. at 91. See also Campbell, note 40 at § 9.7. In State v. Cobb, 875 S.W.2d 533, 536 (Mo. banc 1994), the Court in dicta held that the Constitution does not require proof beyond a reasonable doubt in sentencing proceedings in non-capital cases. There is authority, however, for the proposition that clear and convincing proof is required in non-capital sentencing proceedings. See United States v. Mezas De Jesus, 217 F.3d 638 (9th Cir. 2000); United States v. Gigante, 94 F.3d 53, 56 (2nd Cir. 1996); United States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993); United States v. Corbin, 998 F.2d 1377, 1378 (7th Cir. 1993); United States v. Lam Kwong-Wah, 966 F.2d 682, 688 (D.C. Cir. 1992); United States v. Townley, 929 F.2d 365, 370 (8th Cir. 1991); United States v. St. Julian, 922 F.2d 563, 569 n.1 (10th Cir. 1990).

³⁵ 530 U.S. 466 (2000).

³⁶ See e.g. United States v. Rodriguez-Gonzales, 358 F.3d 1156 (9th Cir. 2004) (the court in dicta stated that if certain prior convictions changed the offense charged from a misdemeanor to a felony, the prior convictions must be submitted to the jury under the Apprendi ruling).

³⁷ See also Besser v. Walsh, 2003 WL 22801952 (S.D.N.Y.) (November 26, 2003) (New York's persistent felony offender sentence-enhancing statute violates Apprendi).

³⁸ 124 S.Ct. 253 (2004).

³⁹ See MAI-CR 3d 305.01.

⁴⁰ Section 560.011.1, RSMo. 2000.

⁴¹ Section 560.016, RSMo. 2000.

⁴² Section 560.026 RSMo 2000. As State v. Roddy, 998 S.W.2d 562, 565 (Mo. App. S.D. 1999) explains, restitution cannot be ordered unless the defendant is placed on probation. Section 559.021.2(1), RSMo 2000, discusses the condition of probation. The extent to which SB 5 makes these types of questions, which were previously only of concern to the court, related to jury sentencing remains an undecided issue. Section 557.011, RSMo. 2000, authorizes dispositions that the court may impose. This section was not changed by SB 5. See also, § 560.031, RSMo 2000, discussing the court's response to non-payment of a fine; Bearden v. Georgia, 461 U.S. 660 (1983), held that revocation of probation for non-payment of a fine and restitution could not be automatic. Section 560.031, RSMo, discusses "intentional refusal" to pay a fine and a "good faith effort" to pay. The statute places the burden on the offender. But the statutory time allowed for non-payment of a felony fine is 180 days, and for non-payment of a misdemeanor it is 30 days. The criminal defense attorney may wish to rely on the protection of § 560.031 rather than raise a constitutional challenge to the jury imposing a fine on an indigent defendant and having incarceration imposed as a penalty for the conduct.

⁴³ E.g., § 570.155, RSMo. Supp 2000 (imposing up to a $10,000 fine for violation of statute). See e.g. § 302.020 RSMo. 2000, § 577.012 RSMo Supp. 2003, and § 577.023, RSMo Supp. 2003 (special punishment for repeat offenders).

⁴⁴ State v. Oswald, 14 S.W.3d 678 (Mo. App. W.D. 2000) (holding that in a criminal non-support case, the trial court erred in sentencing the defendant to five years in the department of corrections when the jury assessed a fine). See also § 557.036.5, RSMo Supp. 2003.

⁴⁵ MAI-CR 3d 305.03.

⁴⁶ Id. at Notes on Use 4.

⁴⁷ MAI-CR 3d 302.01.

⁴⁸ MAI-CR 3d 302.02.

⁴⁹ MAI-CR 3d 308.14.

⁵⁰ 986 S.W.2d 462 (Mo. banc 1999).

⁵¹ 63 S.W.3d 615 (Mo. banc 2001).

⁵² See State v. Storey, 986 S.W.2d 462 (Mo. banc 1999), and State v. Mayes, 63 SW 3d 615 (Mo. banc 2001) (holding that it was error not to modify MAI-CR 3d 308.14 for the second stage of a first degree murder case involving the death penalty).

⁵³ MAI-CR 3d 305.02, Notes on Use 2.

⁵⁴ Id. at Notes on Use 3.

⁵⁵ See, e.g., MAI-CR 3d 308.14 concerning the right of the defendant not to testify.

⁵⁶ MAI-CR 3d 313.54, Notes on Use 3, withdrawn by Supreme Court's order of June 27, 2003, 59 J. Mo. Bar 198 (2003).

⁵⁷ Section 557.036.4.2, RSMo Supp. 2003.

⁵⁸ Section 557.036.3, RSMo Supp. 2003.

⁵⁹ In United States v. Fell, 360 F.3d 135 (2d Cir. 2004), the court held that the federal death penalty law providing for a relaxed standard for the admissibility of evidence used to prove death eligibility factors does not violate the defendant's constitutional right to a jury determination as to whether the death penalty should be imposed, including the procedural safeguard guaranteed by the Due Process Clause of the Fifth Amendment and the confrontation and cross-examination guarantees of the Sixth Amendment with respect to the penalty phase. The court overruled the district court's opinion to the contrary. See United States v. Fell, 217 F. Supp.2d 469 (D. Vt. 2002).

⁶⁰ Gardner v. Florida, 430 U.S. 349, 358 (1997).

⁶¹ Id. at 362.

⁶² United States v. Tucker, 404 U.S. 443 (1972); Townsend v. Burke, 334 U.S. 736 (1948).

⁶³ In State v. Cobb, 875 S.W.2d 533, 536 (Mo. banc 1994), the Court in dicta said in a non-capital case that "strict sentencing guidelines to prevent Eighth Amendment violations are not implicated" as they are in capital cases. This case, however, dealt with the issue of whether the double jeopardy prohibition in capital cases applied to non-capital cases. But see, Skipper v. North Carolina, 476 U.S. 1, 5, FN1 (1986), where the court stated that due process precluded a sentence of death upon information that the defendant had no opportunity to deny or explain. See also Campbell, §8.4, p247-251. Thus, it would appear that Eighth Amendment death penalty cases that may also reference or implicate due process principles may be relevant to proceedings in non-capital cases.

⁶⁴ Section 595.209.1(1), RSMo Supp. 2003.

⁶⁵ Id.

⁶⁶ Section 557.036.3, RSMo Supp. 2003.

⁶⁷ 858 S.W.2d 853 (Mo. App. W.D. 1993).

⁶⁸ Id. at 854-856.

⁶⁹ Id. at 856.

⁷⁰ Id.

⁷¹ Mo. Const. art. I § 32.

⁷² State v. Roll, 942 S.W.2d 370, 378 (Mo. banc 1997) (citation omitted). See also State v. Taylor, 18 S.W.3d 366, 377 (Mo. banc 2000) (no error for step-daughter to testify about her relationship with the victim, and her long prayer over the victim's body); State v. Johnson, 22 S.W.3d 183, 190 (Mo. banc 2000) (evidence that "victims were hard-working people who cared for their families"); post-conviction relief granted on other grounds, Johnson v. State, 102 S.W.3d 535 (Mo. banc 2003); and Adams v. State, 951 S.W. 2d 722 (Mo. App. W.D. 1997) (no error for witness to state that defendant should receive the maximum sentence for an assault). See also Barnett v. State, 103 S.W.3d 765, 772 (Mo. banc 2003) ("jury should not be put in the position of carrying out the victims' wishes, whether they are for or against the death penalty."); Booth v. Maryland, 482 U.S. 496 (1987) (victim's families members' characterization about the crime, opinions about the crime, and defendant are inadmissible), overruled by Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991) (holding that victim impact evidence is admissible because assessment of the harm caused by defendant is important in assessing punishment and the state has an interest in producing evidence that rebuts the mitigating evidence). See Simmons v. Bowersox, 235 F.3d 1124 (8th Cir. 2001), cert. denied, Simmons v. Luebbers, 534 U.S. 924 (2001).

⁷³ Johnson, 22 S.W.3d at 190.

⁷⁴ See State v. Muhammad, 678 A.2d 164 (N.J. 1996); United States v. Glover, 43 F. Supp. 2d 1217, 1235-36 (D. Kan. 1999).

⁷⁵ State v. Thompson, 985 S.W. 2d 779, 792 (Mo. banc 1999), on appeal after remand, 85 S.W. 3d 635 (Mo. banc 2002).

⁷⁶ See, e.g., William A. Schroeder, Courtroom Handbook On Missouri Evidence, Missouri Practice Series, at § 404(a).3 (West 2004).

⁷⁷ Thompson, 985 S.W. 2d at 792 (citing State v. Debler, 856 S.W. 2d 641, 656 (Mo. banc 1993)); see also State v. Strong, 142 S.W.3d 702 (Mo. banc 2004).

⁷⁸ Id.

⁷⁹ See Rule 25.18.

⁸⁰ Thompson, 985 S.W.2d at 784.

⁸¹ Id.

⁸² Id. at 791-792.

⁸³ Section 557.036.1, RSMo Supp. 2003.

⁸⁴ Johnson v. State, 5 S.W. 3d 588 (Mo. App. W.D. 1999). SB 5 also amended the definition of "dangerous felony." With the addition of other crimes to the list of dangerous felonies in § 556.061.8, RSMo Supp. 2003, more victims automatically will be afforded notice of the criminal proceedings. Section 595.209, RSMo 2000.

⁸⁵ State v. Holt, 758 S.W.2d 182, 186 (Mo. App. E.D. 1988).

⁸⁶ Section 557.036.2, RSMo Supp. 2003.

⁸⁷ Section 558.019, RSMo Supp. 2003, as amended by the legislature in 2004. As amended by SB 5, requires the offender who has pled guilty to or been found guilty of a "dangerous felony" to serve a minimum prison term of 85%. "Dangerous felony" is defined in § 556.061.8, RSMo Supp. 2003. As amended by SB 5, there are now 15 dangerous felonies. The felonies are as follows:

arson in the first degree, assault in the first degree, attempted forcible rape if physical injury results, attempted forcible sodomy if physical injury results, forcible rape, forcible sodomy, kidnapping, murder in the second degree, assault of a law enforcement office in the first degree, domestic assault in the first degree, elder abuse in the first degree, robbery in the first degree, statutory rape in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act, . . . and abuse of a child pursuant to subdivision (2) of subsection 3 of section 568.060, RSMo.

⁸⁸ In June 2004, the Missouri Sentencing Advisory Commission issued a "Report on Recommended Sentencing" for different categories of offenses. The Sentencing Commission listed aggravating and mitigating conditions for each category of offenses. Prior to 2004, the Advisory Sentencing Guidelines Users Manual published by the Missouri Sentencing Advisory Commission in 1998 provided for a number of aggravating and mitigating factors for offenses in general.

⁸⁹ 741 S.W.2d 665 (Mo. banc 1987).

⁹⁰ Id. at 670 (habeas corpus granted State ex rel. Amrine v. Roper, 102 S.W. 3d 541 (Mo. banc 2003)).

⁹¹ 681 S.W.2d 934 (Mo. banc 1984).

⁹² Id. at 941.

⁹³ Id.

⁹⁴ Amrine, 741 S.W.2d at 670.

⁹⁵ Id.

⁹⁶ See id. (discussing the "importance of the jury finding aggravating circumstance" in a capital case).

⁹⁷ 940 S.W.2d 512, 518 (Mo. banc 1997).

⁹⁸ Id.

⁹⁹ Id., citing Green v. Georgia, 442 U.S. 95, 99 (1979). (Joyce Hagar gave an audiotaped statement to the police, arguably exculpatory of the defendant, in which she stated that defendant's son told Hagar that he and his mother had killed the victim.)

¹⁰⁰ Id. at 517-518. Cf. State v. Hall, 955 S.W.2d 198, 206-207 (Mo. banc 1997) (the trial court properly excluded evidence that the defendant passed a polygraph test and evidence of defendant's plea negotiations, although evidence of defendant's cooperation with police and his acceptance of responsibility was presented to the jury).

¹⁰¹ 998 S.W.2d 531 (Mo. banc 1999).

¹⁰² Id. at 549-550.

¹⁰³ Id.

¹⁰⁴ Id. at 549.

¹⁰⁵ 879 S.W.2d 494 (Mo. banc 1994).

¹⁰⁶ Id. at 521. See also State v. Brown, 998 S.W.2d 531 (Mo. banc 1999), denial of writ of habeas corpus, affirmed by Brown v. Luebbers, 344 F.3d 770 (8th Cir. 2004).

¹⁰⁷ Id. at 521-522.

¹⁰⁸ 541 U.S. 36 (2004).

¹⁰⁹ 959 S.W.2d 789 (Mo. banc 1997).

¹¹⁰ Id. at 796.

¹¹¹ Id. See also State v. Lingar, 726 S.W.2d 728, 739-41 (Mo. banc 1987) (trial court did not err in admitting evidence of defendant's homosexuality and in admitting into evidence during punishment phase of the trial defendant's correspondence describing his attorney's efforts for the defense because it demonstrated the defendant's lack of remorse); and State v. Tokar, 918 S.W.2d 753, 770 (Mo. banc 1996) (trial court did not err in admitting evidence that defendant had AIDS during the penalty phase of the trial because it rebutted the defense claim that alcohol was the reason for the killing). See also, State v. Driscoll, 55 S.W.3d 350, 353-354 (Mo. banc 2001) (discussion of Dawson v. Delaware, 503 U.S. 159 (1992), where admission of evidence of defendant's membership in the Aryan Brotherhood was not a violation of the First Amendment because of the evidence of unlawful activities of the Aryan Brotherhood to show future danger to society, but reversing because of the admission of the evidence in the guilt phase.)

¹¹² Section 557.036.4(1), RSMo Supp. 2003. See also note 21.

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 1 - Janury-February 2005