State v. Cole, SC 83485.

CourtUnited States State Supreme Court of Missouri
Citation71 S.W.3d 163
Docket NumberNo. SC 83485.,SC 83485.
PartiesSTATE of Missouri, Respondent, v. Andre COLE, Appellant.
Decision Date26 February 2002

Deborah B. Wafer, Asst. Public Defender, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for Respondent.

WHITE, Judge.


Appellant, Andre Cole, was convicted of first-degree murder, first-degree assault, first-degree burglary, and two counts of armed criminal action. He was sentenced to death for the murder, three terms of life imprisonment for the assault and two counts of armed criminal action, and thirty years for the burglary. Because the death penalty was imposed, this Court has exclusive appellate jurisdiction pursuant to Mo. Const. art. V, sec. 3. The judgment of the trial court is affirmed.


The facts, which this Court reviews in the light most favorable to the verdict,1 are as follows:

Appellant and his wife, Terri Cole (Terri), divorced in 1995 after eleven years of marriage. Appellant was ordered to pay child support for the care of the couple's two children but his periodic failure to make payments resulted in an arrearage totaling nearly $3000.00. Upon learning that a payroll withholding order was issued to his employer, Appellant commented to his coworkers, "Before I give her another dime I'll kill the bitch."

The first payroll deduction for child support appeared on Appellant's August 21, 1998 paycheck, and several hours later Appellant forced his entry into Terri's house by throwing an automobile jack through the glass door leading to the dining room. Anthony Curtis (Curtis), who was visiting Terri, confronted Appellant and asked him to leave. Appellant stabbed Curtis multiple times resulting in his death. Appellant then assaulted Terri, stabbing her repeatedly in the stomach, breasts, back, and arms, and her hands when she attempted to defend herself. Terri survived.

After the attack, Appellant fled the State, but he returned to St. Louis and surrendered to the police thirty-three days later. DNA analysis confirmed the presence of both victims' blood on the knife and the presence of Appellant's blood on the deck of Terri's home, the backyard fence, and in the street where Appellant's car had been parked.


In his first point, Appellant contends that the evidence at trial was insufficient to establish, beyond a reasonable doubt, that he deliberated on killing Curtis. According to Appellant, he was unaware of Curtis's presence in the home when he forced his way inside, he did not know Curtis, and he was so enraged during the assaults that he could not have coolly reflected on the murder. Without evidence of deliberation, an intentional killing is second-degree murder,2 and the facts that a lethal weapon was used or that multiple wounds were inflicted are not conclusive on the question of deliberation.3

When considering the sufficiency of the evidence on appeal, this Court must determine if sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt.4 The evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict.5 The element of deliberation may be proven from the circumstances surrounding the crime.6 Deliberation requires only a brief moment of "cool reflection" and may be inferred from the fact that a defendant had the opportunity to terminate an attack after it began.7 While the evidence of multiple wounds is not conclusive, numerous wounds or repeated blows may support an inference of deliberation.8

Appellant stabbed Curtis a total of twenty-one times. Thirteen of the injuries were defense wounds to his hands, eight of the wounds were located on either his head or torso, and five of these eight wounds required considerable force, having penetrated four or more inches into the body striking bone. The evidence indicated that midway during the attack Curtis fell face down on the floor and was no longer offering any resistance. Appellant resumed the attack on his incapacitated victim and inflicted multiple stab wounds to Curtis' back, including the fatal wound that severed Curtis's aorta. Appellant's choice to continue his assault on Curtis when he no longer resisted provides sufficient evidence from which a reasonable jury could find the element of deliberation beyond a reasonable doubt.


Appellant's second point provides the Court with a list of complaints regarding the prosecutor's guilt-phase closing argument and an item of guilt-phase evidence, all of which are alleged to have been improper and prejudicial. The common thread to these claims is that none were preserved for direct appeal by a timely objection at trial. With regard to five of Appellant's six complaints, the record on appeal and the briefs of the parties have been reviewed. Finding no error of law an extended opinion on these issues would have no precedential value.9

One of Appellant's claims, however, merits discussion. Appellant argues that during the guilt-phase closing argument, the prosecutor committed prejudicial misconduct by making an erroneous propensity argument. While the prosecutor was challenging the credibility of the Appellant and his version of the events taking place on the night of the murder, he made several references to the Appellant being a convicted felon. Refuting Appellant's claims that it was Terri who was the attacker and not the Appellant, the prosecutor also stated, "She's a mom who worked for a health care company doing clerical work and he's a convicted killer."

Appellant had testified at trial and, consequently, his prior offenses, including two felony convictions for unlawful use of a weapon and a violation of an adult abuse order. were properly admitted into evidence. Appellant contends, however, that the prosecutor's earlier reference to the actual prior offenses, and the later erroneous statement about being a convicted killer, were used improperly to show propensity, i.e., prior guilt being used to establish guilt of the current offense charged.

Allegedly improper comments made by the prosecutor that are not preserved for review by a timely objection will be reviewed only for manifest injustice under the plain error rule, rule 30.20.10 "To prevail on plain error review, [Appellant] must show that the trial court's error so substantially violated his rights that manifest injustice or a miscarriage of justice results if the error is not corrected."11 While it is improper to use prior convictions as substantive evidence of guilt or a defendant's propensity to commit crimes,12 it is permissible to use them to attack the defendant's truthfulness and credibility in his testimony.13

The prosecutor's statements referencing Appellant's prior convictions were properly admitted to attack the Appellant's credibility. The misstatement by the prosecutor referring to the Appellant as a "convicted killer" was a single inadvertent remark not prejudicing Appellant because the jury had already been presented with the precise nature of his actual prior convictions, none of which involved a homicide. Statements made in closing argument will rarely amount to plain error, and any assertion that the trial court erred for failure to intervene sua sponte overlooks the fact that the absence of an objection by trial counsel may have been strategic in nature.14


Appellant next contends he was prejudiced by being subjected to an unauthorized sentence of death. Acknowledging that this point was not preserved for appellate review, Appellant, citing Apprendi v. New Jersey, seeks plain error review for alleged violations of his Sixth, Eighth and Fourteen Amendment rights for having his punishment unconstitutionally enhanced. Appellant claims the State's indictments and substitute information failed to charge him, as is required, with any fact that increases the maximum penalty for a crime.15

Appellant's argument is based upon the premise that while section 565.020 establishes a single offense of first-degree murder, the combined effect of sections 565.020 and 565.030.4 is to create two types of first-degree murder. According to Appellant, the before-mentioned statutes delineate two separate crimes, "unenhanced" first-degree murder, carrying a maximum sentence of life without probation or parole, and "aggravated" first-degree murder, requiring an additional element of at least one statutory aggravator pursuant to section 565.032 and which carries the maximum sentence of death. Appellant claims the failure to include any statutory aggravators in either the indictment or the information necessarily results in Appellant only being charged with "unenhanced" first-degree murder and to assess a sentence of death increases the statutory maximum penalty which was beyond the jurisdiction of the trial judge.

Appellant's claim is meritless. Section 565.020 defines a single offense of first-degree murder with the express range of punishment including life imprisonment or death. Section 565.030 delineating trial procedure in cases of first-degree murder does not create, or differentiate, two separate categories of first-degree murder offenses. The maximum penalty for first-degree murder in Missouri is death, and the required presence of aggravating facts or circumstances to result in this sentence in no way increases this maximum penalty. Apprendi is inapposite.


Appellant also asserts the trial court erred in overruling his objection to jury Instruction 18, the aggravating circumstance involving whether or not the murder was outrageously and wantonly vile, horrible, and inhuman involving depravity of mind.16 Appellant claims that the limiting instruction defining "depravity of mind" as being "repeated" and "excessive" acts of physical abuse making the killing unreasonably brutal is constitutionally vague....

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