State v. Petary, 71189
| Decision Date | 19 June 1990 |
| Docket Number | No. 71189,71189 |
| Citation | 790 S.W.2d 243 |
| Parties | STATE of Missouri, Respondent, v. Donald Eugene PETARY, Appellant. |
| Court | Missouri Supreme Court |
Craig Johnston, Asst. Public Defender, Columbia, for appellant.
William L. Webster, Atty. Gen., John Morris, Asst. Atty. Gen., Jefferson City, for respondent.
In this case we affirmed judgment of conviction of murder in the first degree and sentence of death. State v. Petary, 781 S.W.2d 534 (Mo. banc 1989). The Supreme Court, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 granted certiorari, vacated the judgment, and remanded the case for consideration in the light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), which dealt with instructions concerning mitigating circumstances. After receiving supplemental briefs and hearing further argument, we again affirm.
Here the jury was instructed at the outset:
You must not single out certain instructions and disregard others or question the wisdom of any rule of law.
The portion of Instruction 19 with which we must now concern ourselves reads as follows: (Emphasis supplied)
If you decide that one or more sufficient aggravating circumstances exist to warrant the imposition of death, as submitted in Instruction No. 16, you must then determine whether one or more mitigating circumstances exist which outweigh the aggravating circumstance or circumstances so found to exist. In deciding that question, you may consider all of the evidence relating to the murder of Kathy Allen.
* * * * * *
You may also consider any circumstances which you find from the evidence in mitigation of punishment.
If you unanimously find that one or more mitigating circumstances exist sufficient to outweigh the aggravating circumstances found by you to exist, then you must return a verdict fixing defendant's punishment at imprisonment for life by the Division of Corrections without eligibility for probation or parole.
The jury was also instructed in Instruction 20 that:
You are not compelled to fix death as the punishment even if you do not find the existence of one or more mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances which you find to exist. You must consider all the circumstances in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you.
This method of instruction has often been challenged as violative of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), which held that jurors could not be confined to consideration of mitigating circumstances which the jury found unanimously. Our prior holdings in this case and State v. Smith, 781 S.W.2d 761 (Mo. banc 1989), as well as federal cases, have consistently held that our instructions, taken as a whole, do not transgress the holding in Mills. See Schneider v. State, 787 S.W.2d 718 (Mo. banc 1990); Roberts v. State, 775 S.W.2d 92, 96 (Mo. banc 1989) (Blackmar, C.J., concurring), citing Gilmore v. Delo, 1989 WL 109554 (E.D.Mo.1989).
McKoy further refined the Mills holding by making it clear that individual jurors could not be precluded from considering mitigating circumstances in addition to those which the jury found unanimously. The instructions in question posed four issues, reading as follows: (We include bracketed numbers, not a part of the actual instruction, to facilitate our discussion.)
... "Do you unanimously find from the evidence, beyond a reasonable doubt, the existence of one or more of the following aggravating circumstances?"
* * * * * *
"If you do not unanimously find this mitigating circumstance by a preponderance of the evidence, so indicate by having your foreman write, 'No,' in that space" on the verdict form....
McKoy, 494 U.S. at ----, 110 S.Ct. at 1230.
The Court found that jurors might construe those instructions so as to permit them to weigh, under the third and fourth issues, only such mitigating...
To continue reading
Request your trial
-
Blaske v. Smith & Entzeroth, Inc., Nos. 73588
... ... and a classification sustained if the classification is rationally related to a legitimate state interest ... Neither a "suspect class" nor a "fundamental right" is at issue in ... ...
-
State v. Feltrop
...Court has repeatedly upheld the constitutional validity of this instruction. See State v. Reese, 795 S.W.2d 69 (Mo. banc 1990); State v. Petary, 790 S.W.2d 243 (Mo. banc), cert. denied, 498 U.S. 973, 111 S.Ct. 443, 112 L.Ed.2d 426 (1990); Schneider v. State, 787 S.W.2d 718 (Mo. banc), cert.......
-
State v. Parker
...v. Petary, 781 S.W.2d 534, 544 (Mo. banc 1989), vacated and remanded, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), reaffirmed, 790 S.W.2d 243 (Mo. banc), cert. denied, 498 U.S. 973, 111 S.Ct. 443, 112 L.Ed.2d 426 (1990) (aggravating factor that the defendant killed the victim beca......
-
Basile v. Bowersox
...v. Petary, 781 S.W.2d 534, 542 (Mo. banc 1989), vacated and remanded, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990); reaffirmed, 790 S.W.2d 243 (Mo. banc); cert. denied, 498 U.S. 973, 111 S.Ct. 443, 112 L.Ed.2d 426 (1990), "The omission of the requirement that the jury find the nons......