State v. Storey

Citation40 S.W.3d 898
Parties(Mo.banc 2001) State of Missouri, Respondent, v. Walter Timothy Storey, Appellant. SC82324 0
Decision Date06 March 2001
CourtUnited States State Supreme Court of Missouri

Appeal From: Circuit Court of St. Charles County, Hon. Ellsworth Cundiff

Counsel for Appellant: Deborah B. Wafer

Counsel for Respondent: Stacey L. Anderson

Opinion Summary: Walter Timothy Storey killed Jill Frey in her St. Charles apartment in February 1990. A jury convicted him of first degree murder, armed criminal action, second degree burglary, and tampering with evidence. The jury recommended, and the court imposed, the death sentence. This Court affirmed his convictions but has twice reversed and remanded his sentence for new penalty phases because of violations of his constitutional rights. For a third time, a jury recommended and the court imposed the death penalty. Storey appealed.

Court en banc holds: (1) Storey was not prejudiced by the judge's explanation of life imprisonment to a second group of potential jurors. Storey's jury was selected from the first group.

(2) Because Storey peremptorily struck two potential jurors he claims should have been stricken for cause, they cannot constitute grounds for reversal, section 494.480.4. Storey did not challenge the constitutionality of this statute until his motion for new trial or with other than abstract, conclusory statements, waiving the challenge.

(3) A venireperson's equivocal and shifting responses to questions focusing on his ability to impose the death penalty justify striking him for cause.

(4) The Court does not find credible Storey's argument that he was prejudiced during voir dire by the untimely disclosure of three victim impact witnesses. The defense did not address already identified victim impact witnesses and was notified of the intention to introduce testimony related to the victim's work with disabled children.

(5) Likewise, there is no indication defense suffered a disadvantage during the presentation of evidence or closing arguments.

(6) A neighbor's testimony of her problems after hearing the murder and a friend's testimony about finding Frey and her handicapped students looking for her was proper victim impact evidence as to the specific harm caused by the defendant.

(7) Ten of eleven exhibits relating to structures and events dedicated to Frey after her death were properly admitted, showing her value to the community, the impact of her death, and her unique characteristics. Only a picture of her tombstone was beyond the scope of proper victim impact evidence. Given the properly admitted evidence establishing the particularly senseless and brutal nature of the murder, the erroneous admission of an irrelevant photograph did not deprive Storey of a fair trial.

(8) The court did not abuse its discretion in excluding speculative testimony on whether the Department of Corrections would change its classification system.

(9) Closing argument calling Storey's mitigators excuses was permissible.

(10) The Court has cautioned against closing argument suggesting the jury is weak if it fails to return a certain verdict, but the state's comment about weakness was isolated and part of a larger and otherwise appropriate argument.

(11) Though referring to statistical data not in evidence is improper during closing, the reference was isolated and not prejudicial.

(12) The court did not err in refusing to insert language in three instructions patterned on an approved instructions. All were superfluous. One phrase was specifically contrary to the Notes on Use.

(13) Submission of the "pecuniary gain" aggravator did not violate the Double Jeopardy Clause though not found by previous juries. Aggravators are not penalties or offenses but are standards to guide the sentencing choice.

(14) The evidence was sufficient to sustain the aggravators.

(15) The Court does not condone the prosecutor's overzealous behavior but does find that the sentence was in response to a senseless and brutal murder, not the improper influence of passion, prejudice, or other arbitrary factor. The evidence supports the aggravators. The sentence is not excessive or disproportionate considering the crime, the strength of the evidence, and the defendant.

Limbaugh, White, Holstein, Wolff and Benton, JJ., concur.

William Ray Price, Jr., Chief Justice

Walter Timothy Storey killed Jill Frey on February 2, 1990. Following trial in 1991, a jury convicted him of first degree murder, armed criminal action, second degree burglary, and tampering with evidence. Upon the recommendation of the jury, the trial court sentenced Storey to death. In 1995, this Court affirmed the convictions, but reversed and remanded the death sentence after finding that Storey was denied his constitutional right to effective assistance of counsel during the penalty phase. State v. Storey, 901 S.W.2d 886 (Mo. banc 1995). In 1997, a second jury recommended a sentence of death, which the trial court adopted. This Court again reversed and remanded the sentence of death because of the trial court's failure to properly instruct the jury concerning Storey's constitutional right not to testify. State v. Storey, 986 S.W.2d 462 (Mo. banc 1999).

On December 17, 1999, the trial court adopted a third jury's recommendation that Storey be put to death. We have exclusive jurisdiction over the appeal. Mo. Const. art. V, section 3. We affirm the sentence of death.

I. Facts

The facts underlying Storey's conviction, as previously outlined by this Court, are as follows:

On February 2, 1990, Storey received a divorce petition from his wife. Later that night, by his own admission, Storey got a knife from his kitchen, climbed up the balcony of his across-the-hall neighbor Jill Frey, entered her apartment, took her pocketbook and car keys, "struggled" with her, and stole her car.

The next day, again by his own admission, Storey reentered Frey's apartment using the stolen keys, tried to wipe his fingerprints from anything he had touched, cleaned under Frey's fingernails with her own toothbrush, put evidence in a dumpster, and threw Frey's keys in the lake behind her apartment.

The day after that, Frey failed to appear at work, so her co-workers came to check on her. They found Frey's dead body in the bedroom. She had six broken ribs; she had been hit in the face and head 12 times; she had a non-fatal stab wound in her side. Most or all of these injuries were inflicted before she was killed by two six-inch cuts across her throat.

State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995).

II. Standards of Review

The trial court is vested with broad discretion in determining the admissibility of evidence offered at the penalty stage of a capital case. State v. Clayton, 995 S.W.2d 468, 478 (Mo. banc 1999). "As a general rule, the trial court 'has discretion during the punishment phase of trial to admit whatever evidence it deems helpful to the jury in assessing punishment.'" State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999) (quoting State v. Kinder, 942 S.W.2d 313, 331 (Mo. banc 1996)).

On direct appeal, we review the trial court "for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998). Issues that were not preserved may be reviewed for plain error only, which requires the court to find that manifest injustice or miscarriage of justice has resulted from the trial court error. State v. Worthington, 8 S.W.3d 83, 87 (Mo. banc 1999).

III. Issues Raised on Appeal

On appeal, Storey alleges eleven points of error. For the sake of convenience, we address his claims in the following order: A) the trial court erred during jury selection by refusing to quash the jury panel, in failing to grant the defendant's request to strike two jurors for cause, and in granting the state's request to strike a potential juror for cause (Storey's points 1 and 7); B) the trial court erred in admitting certain victim impact evidence and in limiting the testimony of an expert witness (Storey's points 4, 5, and 8); C) the trial court erred during closing arguments when it allowed the State to characterize the mitigating circumstances as "excuses" and the defendant's plea for mercy as a plea for "weakness" (Storey's points 2 and 3); D) the trial court erred when it overruled defense objections to jury instructions eleven and twelve (Storey's points 9 and 10); and E) the trial court erred by submitting two statutory aggravating circumstances to the jury (Storey's point 6).

Finally, we conduct an independent review of the sentence pursuant to section 565.035, RSMo 1994, and we address Storey's claim that the sentence of death in this case is disproportionate (Storey's point 11).

A. Jury Selection

In two points of error, Storey alleges that the trial court abused its discretion during the jury selection process by overruling a defense motion for a mistrial, by overruling the defense motion to strike a venireperson for cause, and by granting the State's motion to strike a venireperson for cause.


During jury voir dire, defense counsel asked the venire panel whether they understood the meaning of life imprisonment. In response, a venireperson asked whether a person sentenced to life without the possibility of parole might later be released from prison due to an appeal. The trial court explained to the venireperson that "[t]here is always a possibility that there are appeals that you are aware and that there is always the possibility that the governor has the power to give clemency." Storey argues that the explanation of the trial court violated United States Supreme Court precedent by shifting the sense of responsibility from the sentencing jury to the appellate court. Caldwell v. Mississippi, 472 U.S. 320 (1985). He suggests that the judge's remarks created a juror bias in favor of the death sentence.

We review Storey's allegation "for prejudice, not mere error, and...

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