State v. Storey

• Decision Date: 20 June 1995
• Docket Number: No. 74425,74425
• Citation: 901 S.W.2d 886
• Parties: STATE of Missouri, Respondent, v. Walter Timothy STOREY, Appellant.
• Court: Missouri Supreme Court

Page 886

901 S.W.2d 886

STATE of Missouri, Respondent, v. Walter Timothy STOREY, Appellant.

No. 74425.

Supreme Court of Missouri,

En Banc.

June 20, 1995.

Rehearing Denied July 25, 1995.

Janet M. Thompson, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

BENTON, Judge.

The jury convicted Walter Timothy Storey of first-degree murder and other crimes, and assessed the punishment as death. The circuit court imposed the punishment of death, and for the other crimes, life imprisonment, seven years, and five years. The motion court denied Storey's Rule 29.15 motion for post-conviction relief. This Court has jurisdiction of this consolidated appeal. Mo. Const. art. V, § 3. The convictions and the sentences other than death are affirmed; the denial of Rule 29.15 relief and the punishment of death are reversed, and the case is remanded.

I.

This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).

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.

II. Jury Issues

A. Juror Pamphlet

The circuit court routinely mails to potential jurors an informational pamphlet produced by the Missouri Bar. Storey argues the court plainly erred by distributing the pamphlet, and that trial counsel was ineffective by not objecting to it.

Storey equates the pamphlet with jury instructions, arguing that these two pamphlet "instructions" misstate the law:

1. You should remember that statements of the lawyers are not evidence, but only explanations of what each side claims, and that claims must be proved by evidence.

2. ... whereas in a criminal case the verdict must be unanimous.

A jury instruction is a "direction given by the judge to the jury concerning the law of the case." Black's Law Dictionary 856 (6th ed. 1990). The informational pamphlet is not a jury instruction. Jurors are presumed to follow actual instructions--those received from a judge in court. See Zafiro v. United States, 506 U.S. 534, ----, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993).

Moreover, Storey has failed to produce any evidence of prejudice, relying on "a presumption of prejudice when a non-MAI instruction is used." In fact, there is no such presumption; rather, "[t]he giving or failure to give an [non-MAI] instruction or verdict form ... shall constitute error, its prejudicial effect to be judicially determined." Rule 28.02(f). On this record, there is neither plain error nor prejudice. Finally, in the absence of any showing of prejudice, Storey cannot prevail on the ineffective-assistance claim. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995).

B. Individual or Small-Group Voir Dire

Storey claims a constitutional right to individual or small-group voir dire on death qualification and pretrial publicity.

Control of voir dire is within the discretion of the trial judge; only abuse of discretion and likely injury justify reversal. State v. Bannister, 680 S.W.2d 141, 145 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985). This Court has repeatedly rejected claims for individual or small-group voir dire on death qualification. See State v. Chambers, 891 S.W.2d 93, 102 (Mo. banc 1994); State v. McMillin, 783 S.W.2d 82, 94-95 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990).

As to publicity, the trial judge asked the venire about their knowledge of the case. Several venirepersons had heard about it; they were individually questioned at the bench. Those who had prejudged the case or could not be impartial were excused for cause. This individual questioning of those who indicated knowledge was not an abuse of discretion.

C. For-Cause Excusals

Storey contends the trial court erred in excusing for cause venirepersons Grissom and Hayden and that counsel was ineffective in failing to object when Grissom was excused.

A defendant's right to an impartial jury is violated when the trial court excuses venirepersons for cause merely because they express objections to the death penalty. Wainwright v. Witt, 469 U.S. 412, 416, 105 S.Ct. 844, 848, 83 L.Ed.2d 841 (1985); State v. Harris, 870 S.W.2d 798, 805 (Mo. banc), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994). Venirepersons may be removed for cause if their views would substantially impair their ability to follow the law. Wainwright, 469 U.S. at 425-26, 105 S.Ct. at 852-53; Harris, 870 S.W.2d at 805. Appellate courts review for-cause rulings only for abuse of discretion. Harris, 870 S.W.2d at 805-06.

Grissom said he would "exclude the death penalty even as a possibility" and "I believe God gives life; He's the only one that should take it." Plainly, these statements demonstrate Grissom's inability to follow the law. Nonetheless, Storey argues that excusing Grissom violates Mo. Const., art. I, § 5, prohibiting disqualification from jury service because of religious beliefs. Excusing a venireperson who cannot follow the law does not violate § 5, even if the reason for the inability is a religious belief. See State v. Sandles, 740 S.W.2d 169, 178 (Mo. banc 1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1303, 99 L.Ed.2d 513 (1988). Thus, the trial court did not err in excusing Grissom, and counsel's decision not to object was not ineffective.

Venireperson Hayden, after twice stating she could impose the death penalty only in "very limited circumstances," said:

I could judge guilt or not guilty with no problem, I can listen to the evidence of the special circumstance, but I guess I'm just saying that even if the special circumstance fits the law, in my mind, it has to be an extraordinary special circumstance, and, yes, I might--you know, I couldn't envision doing it for all special circumstances.

Hayden's testimony established that her views on the death penalty substantially impaired her ability to follow the law. She testified that she would apply her own definition of "special circumstances" rather than following the instructions. On this record, the trial court did not abuse discretion in excusing Hayden.

D. Pre-Trial Prosecutorial Misconduct

Storey alleges that the trial court erred in not granting a mistrial (sua sponte, because no objections were made) when the prosecutor: (1) told the jury the State had to prove the case to the jury's satisfaction (not beyond a reasonable doubt); and (2) asked if the jury could impose death in the proper case. Any imprecision in the prosecutor's reasonable-doubt voir dire was cured by the jury instructions, which properly discussed reasonable doubt (see section III.F., below). Asking the venire if they could impose death in the proper case is a permissible question. See State v. Feltrop, 803 S.W.2d 1, 19 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991).

Storey also claims that trial counsel was ineffective for failing to object to this voir dire. Since there was no misconduct, there was no ineffective assistance for failure to object.

E. Pre-Trial Ineffective Assistance

Storey asserts that the motion court erred in denying post-conviction relief for ineffective assistance of counsel. To prove ineffective assistance, the defendant must show that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the defendant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995). To prove prejudice, a defendant must show a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Trial strategy is not a ground for ineffective assistance. Id.

The motion court found that trial counsel was not ineffective, so review is to determine if the motion court clearly erred. Rule 29.15(j); Wise, 879 S.W.2d at 524. Findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made. Shurn, 866 S.W.2d at 468-69.

1. Not Striking Jurors

Storey contends that trial counsel should have moved to strike jurors Duly and Doerrer.

Duly, after the prosecutor asked if any of the venire were crime victims, approached the bench and said:

I was involved in a child molestation case involving me as a young girl, so I feel very prejudiced against any sexual-related things. I just have a lot of past, you know, memories from anything like that, so when rape is involved or any...