State v. Anderson, No. SC 89895.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtMICHAEL A. WOLFF, , dissenting
Citation306 SW 3d 529
Decision Date20 April 2010
Docket NumberNo. SC 89895.
PartiesSTATE of Missouri, Respondent, v. Terrance ANDERSON, Appellant.
306 S.W.3d 529

STATE of Missouri, Respondent,
Terrance ANDERSON, Appellant.

No. SC 89895.

Supreme Court of Missouri, En Banc.

March 9, 2010.

Rehearing Denied April 20, 2010.

306 SW 3d 533

Deborah B. Wafer, Office of the Public Defender, St. Louis, for appellant.

Chris Koster, Attorney General, Jamie P. Rasmussen, Assistant Attorney General, Jefferson City, for respondent.


I. Introduction and Procedural History

In January 2001, a jury found Terrance Anderson guilty of two counts of first degree murder for killing Debbie and Stephen Rainwater. He was sentenced to life imprisonment without parole for the murder of Stephen and sentenced to death for the murder of Debbie. Those convictions and sentences were affirmed by this Court in State v. Anderson, 79 S.W.3d 420 (Mo. banc 2002). Anderson filed a motion for post-conviction relief pursuant to Rule 29.15, which was overruled by the circuit court. On appeal, this Court reversed the death sentence for Debbie's murder and remanded for a retrial of the penalty phase. Anderson v. State, 196 S.W.3d 28 (Mo. banc 2006).1

306 SW 3d 534

At the penalty phase retrial, Anderson was again sentenced to death. He appeals his death sentence on numerous grounds. This Court has exclusive jurisdiction pursuant to Mo. Const. art. V, § 3. The judgment is affirmed.

II. Standard of Review

On direct appeal, this Court reviews a sentence of death for prejudice, not mere error, and will reverse a trial court's decision only when an alleged error is so prejudicial that the defendant was deprived of a fair trial. State v. Johnson, 284 S.W.3d 561, 568 (Mo. banc 2009). Prejudice exists when there is a reasonable probability that the trial court's error affected the outcome at trial. Id. Evidence admitted at trial is viewed in the light most favorable to the verdict and is reviewed for abuse of discretion. Id.

III. Point One: Failure to Give Proper Verdict Directing Instruction

Anderson argues that the trial court erred in failing to give the proper verdict director, MAI-CR 3d 313.48A, because it did not include certain language instructing the jury that if it "decided that facts or circumstances in mitigation of punishment outweigh the facts and circumstances in aggravation of punishment" the verdict must be life imprisonment.

Standard of Review

Whenever there is an MAI-CR instruction applicable under the law, the MAI-CR instruction is to be given to the exclusion of any other instruction. State v. Ervin, 979 S.W.2d 149, 158 (Mo. banc 1998). The giving of an instruction in violation of the Notes on Use under MAI-CR constitutes error, its prejudicial effect to be judicially determined. Rule 28.02(f); State v. Livingston, 801 S.W.2d 344, 348 (Mo. banc 1991); State v. White, 622 S.W.2d 939, 943 (Mo. banc 1981), overruled on other grounds by State v. O'Brien, 857 S.W.2d 212 (Mo. banc 1993). Further, if a proper timely objection is made, the giving of an instruction in violation of MAI-CR is presumptively prejudicial unless the contrary is clearly shown. Livingston, 801 S.W.2d at 348; White, 622 S.W.2d at 943. However, reversal is only warranted when the instructional error is so prejudicial that it deprived the defendant of a fair trial. State v. Zink, 181 S.W.3d 66, 74 (Mo. banc 2005); State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999).


In capital cases, juries are given an instruction referred to as the "verdict mechanics" instruction; for crimes occurring prior to August 28, 2001, but after August 28, 1993, the pattern instruction is MAI-CR 3d 313.48A. MAI-CR 3d 313.48A, Notes on Use 1. This instruction summarizes the process the jury should use in considering the evidence, explains which verdict forms the jury should complete, and tells the foreperson how to fill in the appropriate forms. See State v. Storey, 40 S.W.3d 898, 913 (Mo. banc 2001).

Where there is a retrial of the punishment phase alone, the capital penalty phase instructions are modified in certain respects. MAI-CR 3d 313.00, Notes on Use 6. These modifications are laid out in the Appendix to MAI-CR 3d 313.00. The modified version of MAI-CR 3d 313.48A contained in the Appendix to MAI-CR 3d 313.00 was used in Anderson's case. This modified version of MAI-CR 3d 313.48A was patterned after the September 1, 2003, version of MAI-CR 3d 313.48A.

In 2004, the regular version of MAI-CR 3d 313.48A was revised to include language regarding the jury's consideration of evidence in mitigation. Compare

306 SW 3d 535

MAI-CR 3d 313.48A (September 1, 2003) with MAI-CR 3d 313.48A (January 1, 2004). More specifically, the 2004 revision added the following paragraph:

If you unanimously decide that the facts or circumstances in mitigation of punishment outweigh the facts and circumstances in aggravation of punishment, then the defendant must be punished for the murder of name of the victim in this count by imprisonment for life by the Department of Corrections without eligibility for probation or parole, and your foreperson will sign the verdict form so fixing the punishment.

MAI-CR 3d 313.48A (January 1, 2004). It is clear that this MAI-CR was revised, but the version of MAI-CR 3d 313.48A that was included in the appendix to MAI-CR 3d 313.00 did not include the revisions. Thus, the "verdict mechanics" instruction submitted in Anderson's case, Instruction 10, erroneously omitted the paragraph added in 2004.2

The State argues "jury instructions are not to be viewed in isolation, but are to be taken as a whole to determine whether prejudice occurred." Storey, 40 S.W.3d at 912. "This Court must review all submitted instructions together to determine if the error resulted in prejudicial error." White, 622 S.W.2d at 943. The "absence of language in a particular instruction does not prejudice the defendant if the subject matter is covered and provided elsewhere in the instruction." State v. Sandles, 740 S.W.2d 169, 173 (Mo. banc 1987). And, in fact, this Court has specifically and repeatedly held that the prior version of MAI-CR 3d 313.48A properly instructs the jury, even though it does not contain the mitigation-evidence paragraph that was added in 2004. State v. Cole, 71 S.W.3d 163, 176 (Mo. banc 2002); State v. Tisius, 92 S.W.3d 751, 770 (Mo. banc 2002); Storey, 40 S.W.3d at 913-14.

For example, in Storey, the defendant argued that language mentioning mitigating circumstances should have been included in the verdict mechanics instruction. 40 S.W.3d at 913. This Court held that there was no prejudice from this omission because the jury was properly instructed about the consideration of the evidence in the preceding instructions. Id. This Court concluded that "these instructions in no way precluded the jury from giving effect to the mitigating evidence." Id. at 914.

In this case, as in Storey, the jury was properly instructed about the consideration of mitigating circumstances in Instruction 8. Instruction 8, based on MAI-CR 3d 313.44A, instructed the jury how to perform the "weighing step" of the penalty phase deliberations. The jurors were instructed that they should consider the three listed statutory mitigators and "any

306 SW 3d 536

other facts or circumstances which they find from the evidence in mitigation of punishment." Then the instruction stated that "if each juror determines that there are facts or circumstances in mitigation of punishment sufficient to outweigh the evidence in aggravation of punishment, then they must return a verdict fixing defendant's punishment at imprisonment for life by the Department of Corrections without eligibility for probation or parole." Because this instruction included language explaining to the jurors how to consider the mitigation evidence and what to do if they found the mitigating evidence sufficient to outweigh the evidence in aggravation, Anderson was not prejudiced by the omission of that language from the verdict mechanics instruction. Storey, 40 S.W.3d at 913-14; see also Cole, 71 S.W.3d at 176; Tisius, 92 S.W.3d at 770.


Although the trial court erred in failing to give the current version of MAI-CR 3d 313, the trial court did not commit reversible error when it denied Anderson's objection to Instruction 10 and gave a verdict mechanics instruction patterned after the earlier approved instruction. The State has met its burden to demonstrate no prejudice occurred because the instruction did not misstate the law, and, when read in combination with the other instructions, the jury was properly informed about how to consider mitigating evidence.

IV. Point Two: Aggravating Circumstances and Double Jeopardy

Anderson claims that the trial court erred in overruling his motion to dismiss and to quash the information. Anderson contends he was not, nor could he have been, convicted of "aggravated murder in the first degree" in his first trial because the State did not include the aggravating circumstances in the information. Thus, he argues, the State was prohibited from seeking the death penalty on retrial, and the penalty phase of his trial could not be retried because that action would result in double jeopardy.

Anderson admits that section 565.020, RSMo 2000,3 establishes a single offense of first degree murder, but he argues that the combined effect of sections 565.020, 565.030.4, RSMo Supp.2008, and 565.032.2, along with United States Supreme Court and Missouri case law4 is to create two kinds of first degree murder: "unaggravated first degree murder," which does not require proof of statutory aggravating circumstances and carries a maximum sentence of life without parole, and "aggravated first degree murder," which requires the additional finding of at least one statutory aggravator and carries a maximum sentence of death. This Court rejected the same argument in State v. Gill, 167 S.W.3d 184, 193-94 (Mo. banc 2005).

Nevertheless, Anderson argues that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d...

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