State v. Jones, 77168
| Citation | 979 S.W.2d 171 |
| Decision Date | 03 November 1998 |
| Docket Number | No. 77168,77168 |
| Parties | STATE of Missouri, Respondent, v. Donald JONES, Appellant. |
| Court | United States State Supreme Court of Missouri |
William J. Swift, Asst. Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay), Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.
Donald Jones was convicted of murder in the first degree and armed criminal action. He was sentenced to death on the murder charge and to life in prison on the armed criminal action charge. Jones filed a motion for post-conviction relief pursuant to Rule 29.15, which was overruled. In a consolidated appeal to this Court, Jones raises twenty-one points of error. We affirm.
On March 6, 1993, appellant, Donald Jones, went to his grandmother's house around midnight to get some money to buy crack cocaine. When Jones arrived, the grandmother, Dorothy Knuckles, let him in, and they went to her bedroom on the second floor. While in the bedroom Jones asked the grandmother for money. She refused and started lecturing Jones about his drinking and use of cocaine.
Jones went downstairs to the kitchen, picked up a butcher block that contained knives, hid it behind him and went upstairs. His grandmother started lecturing him again, and Jones hit her several times with the butcher block while she screamed. Jones apparently became afraid that the neighbors might hear her screaming, picked up a knife that had fallen out of the butcher block and stabbed her until she stopped screaming and fell back onto her bed.
Jones took his grandmother's car keys, money, and VCR, and he drove off in her car. Jones purchased some drugs, sold the VCR and rented out the car to get money to buy drugs.
The grandmother's body was discovered on March 8, 1993, by her son. On March 9, 1993, the police went to Jones' place of work to question him. Jones was not under arrest at this time, and he agreed to follow the police to the homicide office. After some conversations at the office, Jones became a suspect and was informed of his Miranda rights. Jones then said, "It's the monster inside of me." He explained that the monster inside him was the crack cocaine that had caused him to kill his grandmother. He gave an audiotape statement of the above facts on how he killed his grandmother.
Jones was charged by indictment with murder in the first degree, robbery in the first degree, and two counts of armed criminal action. The case went to trial on two charges: murder in the first degree and one count of armed criminal action. The jury returned guilty verdicts on both counts and recommended death for murder and life in prison for armed criminal action, which the court imposed. Jones filed a motion to vacate, set aside, or correct the sentence or judgment of the trial court pursuant to Rule 29.15. The motion was overruled.
Jones contends that the trial court erred when it overruled defense counsel's penalty phase objection to the prosecutor's argument: that if a stranger had killed Dorothy Knuckles, then her family would have wanted the state to seek the death penalty. Jones contends the argument constituted speculation, asserted facts not in evidence, was improper, and was contrary to the family's beliefs and wishes. When the trial court allows argument over defense counsel's objection, rulings are reversible only for abuse of discretion where argument was plainly unwarranted. State v. Hall, 955 S.W.2d 198, 208 (Mo. banc 1997). Parties have a considerable latitude in arguing during the penalty phase of a first-degree murder case. Id. Moreover, a prosecutor may rebut defense counsel's argument if the defense counsel opens the door to an otherwise questionable line of argument. See State v. Kenley, 952 S.W.2d 250, 272 (Mo. banc 1997).
In State v. Kenley, supra, the prosecutor rebutted defense counsel's argument that the defendant apologized to a prison librarian for taking her hostage by arguing the defendant apologized because he knew the hostage incident would surface at trial and made a similar comment about defendant's improved behavior while incarcerated. Id. The Court stated that the comments were not improper. Id. In fact, "[d]efense counsel opened the door to this argument by inferring that Kenley [defendant] apologized or decreased the number of conduct violations because he had turned over a new leaf." Id. The Court further stated that: "[i]t was reasonable for the prosecutor to counter this argument with the fact that Kenley had other potential motives for his behavior." Id.
In the case before us, the defense counsel made the following statement:
His (Jones) family doesn't want him to die. His family wants him to live. They care about him and love him. Do you think that's what Dorothy Knuckles would want based on what you've heard about her. Do you think she would want you to take vengeance and kill her grandson.
The prosecutor in rebuttal made the following argument:
Now let me say something about the Knuckles' family. If there were more families like the Knuckles' family in this country we wouldn't have the problems we have. But they are not objective. They cannot be objective and nobody expects them to be. If the killer of Dorothy Knuckles was a stranger they'd be sitting on this side of the courtroom.
The prosecutor's statement was not improper within the context in which it was made. It was in response to the defense counsel's suggestion that the family opposes the death penalty for Jones. The prosecutor offered a common sense reply that perhaps the family is biased because Jones is a family member. In this situation the defendant may not provoke a reply and then assert error. State v. Roll, 942 S.W.2d 370, 378 (Mo. banc 1997). Furthermore, State v. Storey, 901 S.W.2d 886 (Mo. banc 1995), is inapplicable in this instance because the contexts were different, the opinions were more personalized and not based on evidence presented, and the comment was not in response to the defense counsel's argument. The trial court did not abuse its discretion in overruling the defense counsel's objection.
Jones argues that the trial judge erred in denying the motion to disqualify himself because of his longstanding animosity toward one of the defense attorneys. Jones also contends that the trial judge erred when he refused to allow the motion to disqualify him to be heard by another judge. The defense attorney entered her appearance as co-counsel in the case after the time had passed for the defendant to get an automatic change of judge under Rule 32.07. Thus, the two issues are whether the trial judge should have disqualified himself for cause and whether, in any event, that determination should have been made by a different judge.
Questions concerning a judge's qualification to hear a case usually are not constitutional questions; rather, they are questions answered by common law, statute or the code of judicial conduct. State v. Nicklasson, 967 S.W.2d 596, 605 (Mo. banc 1998). Canon 3D(1) of Rule 2, the Code of Judicial Conduct, requires a judge to recuse himself in a proceeding where the judge's impartiality might reasonably be questioned. In construing this provision, the test applied is "whether a reasonable person would have a factual basis to find an appearance of impropriety and thereby doubt the impartiality of the court." State v. Smulls, 935 S.W.2d 9, 17 (Mo. banc 1996). It is presumed that judges will not undertake to preside in a proceeding where they cannot be impartial. State ex rel. Ferguson v. Corrigan, 959 S.W.2d 113, 115 (Mo. banc 1997). The judge himself or herself is in the best position to decide whether recusal is necessary. Id. To qualify, the bias must come from an extrajudicial source that results in the judge forming an opinion on the merits based on something other than what the judge has learned from participation in the case. Nicklasson, supra.
In Nicklasson, the defendant claimed bias in the trial court's decisions:
not to allow attorney participation in death-qualification voir dire; refusing to excuse for cause a venireperson who did not ultimately serve on the jury; to refer to some of the defense expert testimony as "junk science" (outside the presence of the jury); to express criticism of a member of the defense team; to comment that one defense witness's testimony was "refreshing" and to state during the questioning of another defense witness "let's get on to something that's going to assist this jury in making a decision" after overruling an objection by the state; and to "ridicule" penalty-phase witnesses.
This Court concluded that none of the assertions rose to the level of bias or prejudice toward either party arising from an extrajudicial source and that none of the assertions supported a contention that the trial court's conduct affected the jury in its fact determinations or sentence recommendation. Id.
Similarly, in the instant case, the record does not support a claim that the trial judge's attitude towards defense co-counsel affected the jury in its fact determinations or sentence recommendation. There is...
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