State v. Brown

• Decision Date: 20 June 1995
• Docket Number: No. 71264,71264
• Citation: 902 S.W.2d 278
• Parties: STATE of Missouri, Respondent, v. Vernon BROWN, Appellant.
• Court: Missouri Supreme Court

Page 278

902 S.W.2d 278

STATE of Missouri, Respondent, v. Vernon BROWN, Appellant.

No. 71264.

Supreme Court of Missouri En Banc.

June 20, 1995.

As Modified on Denial of Rehearing July 25, 1995.

Janet M. Thompson, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

A jury convicted Vernon Brown of first degree murder in violation of Section 565.020, RSMo 1994, and recommended that he be put to death. The trial court agreed and entered a sentence of death. Subsequently, the motion court overruled Brown's Rule 29.15 motion. This appeal followed. We have jurisdiction. Mo. Const. art. V, § 3. The conviction, sentence and denial of post-conviction relief are affirmed.

I.

We interpret the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, --- U.S. ----, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).

On October 24, 1986, nine-year-old Janet Perkins left the Cole School in north St. Louis around 3:00 p.m. and walked toward her home three and a half blocks away. She generally took the same route each day, west on Enright Avenue. Under normal circumstances, the trip took less than 15 minutes.

Vernon Brown, who was then using the name Thomas Turner, had picked up his stepsons from Cole School and returned to their home on Enright Avenue in time to see Janet walking past. Brown called to her and ultimately enticed her to enter the house.

Brown's stepsons saw Janet enter the house. A neighbor's relative saw Brown on the front porch and Janet walking up the steps to the house. Brown ordered the stepsons to their bedroom and locked the door from the outside. Despite Brown's claims that at this point he began suffering PCP-induced blackouts, Brown's own statements, the testimony of his stepsons, and the physical evidence show that he took Janet to the basement of the house, and bound her feet and one hand with a wire coat hanger, forcing her into a crouched position that permitted her head to reach the height of Brown's genitalia. Brown then strangled Janet to death with a rope.

The next day, enforcement authorities found Janet's body in two trash bags near a dumpster in an alley behind Brown's house.

Further investigation raised suspicion about Brown. When suspicion turned to probable cause, the police arrested Brown on October 27, 1986, confronted him with their evidence, including testimony of a neighbor who had seen Janet enter Brown's house, and asked Brown to tell them where to find Janet's missing shoe, raincoat and school papers. Brown led police to a different dumpster, in which they found a bag containing Janet's missing property.

Brown made a videotaped statement implicating himself as Janet's killer. In a subsequent statement, Brown also admitted killing Synetta Ford, a woman who had been murdered on March 7, 1985.

On November 18, 1986, a St. Louis City grand jury indicted Brown on two counts of first degree murder for the deaths of Janet Perkins and Synetta Ford. Brown's counsel moved to suppress the two videotaped statements and to sever the trials on the two murders. The trial court sustained the motion to sever but overruled the motion to suppress.

The jury convicted Brown of Janet Perkins' murder and, in the penalty phase, found four statutory aggravating circumstances and four nonstatutory aggravating circumstances. The jury recommended that Brown be put to death. The trial court concurred, entering its judgment of conviction and sentence of death on December 2, 1988. Subsequently, Brown filed a timely Rule 29.15 motion. After an evidentiary hearing, the motion court overruled the Rule 29.15 motion. This appeal followed.

II.

A few preliminary matters require our attention. First, we choose to depart from Brown's presentation of the issues to proceed chronologically.

Second, Brown operates under several fundamental misconceptions about the proper subjects of a motion for post-conviction relief. He repeatedly assigns error to the motion court's refusal to order relief for acts or omissions which, if erroneous, would constitute simple trial errors subject to review on direct appeal. We will not address claims of motion court error founded on alleged trial court errors which appellant should have preserved for direct appeal.

Finally, unless 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 30.20. 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).

III.

A.

Brown claims that the trial court erred in overruling his motion to strike venireperson Alice Elking for cause. Ms. Elking ultimately served on the jury.

Upon examination by the prosecutor, Ms. Elking confessed that she thought the death penalty appropriate under some circumstances. The prosecutor then asked her to describe the circumstances to which she referred. She replied, "Cold-blooded, just for no reason, such as not in self-defense or somebody set out to do that. I don't know."

Brown's attorney asked her to clarify the meaning of "no reason" for the murder. He said, "... it seems to me that if I didn't prove to you otherwise and what you just said, that you would be basically in favor of giving the death penalty; am I wrong?" She replied, "If you cannot prove that he didn't cold-bloodedly murder that child? ... Probably, yes." Brown's counsel moved to strike Ms. Elking, because he understood her to mean she would expect him to bear the burden of proving that the killing was not "a killing for no reason." The trial court overruled the motion to strike for cause.

Later in voir dire, addressing the issue of the burden of proof, Brown's counsel asked Ms. Elking if she could follow the instruction that the defendant need not present any evidence of his innocence. She said that she could. He also asked if she would take Brown's failure to testify as evidence of his guilt. She said she would not.

"[T]he qualifications of a prospective juror are not determined conclusively by a single response but are made on the basis of the entire examination." State v. Smith, 649 S.W.2d 417, 425 (Mo. banc), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). "The question is not whether a prospective juror holds opinions ..., but whether these opinions will yield and the juror will determine the issues under the law." State v. Feltrop, 803 S.W.2d 1, 8 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). The trial judge is in the best position to evaluate the venireperson's commitment to follow the law contained in the instructions. State v. Leisure, 749 S.W.2d 366, 375 (Mo. banc 1988), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). We review the trial court's ruling for abuse of discretion and ask "whether there is a real probability of injury to the [defendant]." Feltrop, 803 S.W.2d at 7.

Ms. Elking spoke the words upon which Brown relies in response to counsel's question--a question that assumed a legal burden Brown did not bear. Ms. Elking, a layperson not yet instructed generally in the law or specifically in the burden of proof, could well have thought that counsel's question accurately described the law. As such her answer merely reflected her uninstructed notions on the propriety of the death penalty generally. When the questioning turned to the burden of proof and her duty to follow the law, Ms. Elking made clear her willingness to follow the law once made aware of it. "Venireperson [Elking] ultimately adhered to the presumption of innocence; thus the trial judge was not required to strike her for cause." State v. Mahurin, 799 S.W.2d 840, 845 (Mo. banc 1990), cert. denied, 502 U.S. 825, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991). The trial court did not abuse its discretion in declining to strike juror Elking for cause.

B.

Brown next assigns error to several voir dire excerpts as instances in which the trial court erred in sustaining the state's objection to the questions of Brown's counsel.

In questioning venireperson McClain, Brown's counsel (Ramsey) inquired into McClain's views on the effect of drug use on guilt:

McClain: Maybe he wasn't in control of himself. And that brings in a whole different picture, doesn't it?

Ramsey: Well, that's what I want to ask you about because, well, basically, you know, there are some elements to First Degree Murder that you're going to have to decide because the State's charging First Degree Murder. You're going to first of all be instructed that the State has the burden of proving this beyond a reasonable doubt. And by burden of proof it's going to mean that they have to come forward with the proof to prove every element of what First Degree Murder is, and by every element there's different parts of Murder First Degree.

First, you'd have to decide whether it was Janet Perkins that was killed and she was actually killed, okay? Second of all, you'd have to find and believe beyond a reasonable doubt that Vernon Brown caused the death; and then third--

Prosecutor: I object to counsel instructing as to the law.

The Court: Sustained.

Ramsey: Would you have any problem considering if you were instructed that the defendant had to act with premeditation and deliberation for Murder First Degree?

Prosecutor: Same objection. He's instructing as to the law.

The Court: Sustained, improper during voir dire.

Ramsey: Well, she [the prosecutor] was allowed to go into matters of law in her voir dire and as to what circumstances would justify this and I think I'm entitled to go into whether or not they believe there was...