State v. Storey
| Decision Date | 23 February 1999 |
| Docket Number | No. 80200,80200 |
| Citation | 986 S.W.2d 462 |
| Parties | STATE of Missouri, Respondent, v. Walter Timothy STOREY, Appellant. |
| Court | Missouri Supreme Court |
David Hemingway, Asst. Sp. Public Defender, S. Paige Canfield, Asst. Public Defender, St. Louis, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for Respondent.
Appellant Walter Timothy Storey murdered Jill Frey on February 2, 1990. At his 1991 trial, he was convicted of first degree murder, armed criminal action, second degree burglary, and tampering with evidence. In 1995, this Court affirmed all convictions and sentences except the death sentence, which was reversed and remanded because defense counsel was ineffective for not objecting to improper penalty-phase argument by the State. State v. Storey, 901 S.W.2d 886 (Mo. banc 1995). At a second penalty phase in 1997, the jury recommended the death penalty, which the trial court imposed. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. The death sentence is reversed, and the case remanded.
Although he testified at the guilt phase of his original 1991 trial, appellant did not testify at the 1997 penalty phase, nor did the State introduce any of his earlier testimony. Four of appellant's relatives testified for the defense, relating appellant's physical and sexual abuse as a child by his adoptive father. The State adduced physical evidence from the crime, victim impact testimony, and the testimony of appellant's ex-wife, Kim Posey, as to appellant's past abusive behavior.
Appellant requested Jury Instruction H on his right not to testify. Instruction H was based on MAI-Cr.3d 308.14, a guilt-phase instruction:
Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be drawn from the fact that the defendant did not testify.
MAI-Cr.3d 308.14. The requested Instruction H was modified -- by removing only the words "of guilt" -- to reflect that the jury was deciding punishment only:
Under the law, a defendant has the right not to testify. No presumption may be raised and no inference of any kind may be drawn from the fact that the defendant did not testify.
The court refused the instruction. Appellant raised this issue in the motion for new trial.
The instructions submitted two statutory aggravating circumstances: whether the murder was done for "money or any other thing of monetary value," and whether the murder "involved depravity of mind." The court also instructed on three nonstatutory aggravating circumstances (about Posey's allegations of abuse). The jury rejected four of these aggravating circumstances. It returned a verdict of death, finding only the aggravating circumstance that the murder involved depravity of mind because "the defendant committed repeated and excessive acts of physical abuse upon Jill Lynn Frey and the killing was therefore unreasonably brutal."
The privilege against self-incrimination guarantees the right to remain silent and the right not to have adverse inferences drawn from exercising the privilege. U.S. Const. amend. V; Mo. Const. art. I, sec. 19; Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121, 67 L.Ed.2d 241 (1981). "[T]he Fifth Amendment requires that a criminal trial judge must give a 'no-adverse-inference' jury instruction when requested by a defendant to do so." Carter, 450 U.S. at 300, 101 S.Ct. 1112. There is "no basis to distinguish between the guilt and penalty phases of [a] capital murder trial so far as the protection of the Fifth Amendment privilege is concerned." Estelle v. Smith, 451 U.S. 454, 462-63, 101 S.Ct. 1866, 1872-73, 68 L.Ed.2d 359 (1981) (footnote omitted). Therefore, when a defendant does not testify in the penalty phase of a capital murder trial, the court must give a "no-adverse-inference" instruction if the defendant so requests.
Appellant did not testify in this penalty phase, and requested the no-adverse-inference instruction. The State concedes that the modified instruction was an accurate statement of the law and that the trial court should have given the instruction. However, the State argues that any error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Neither this Court nor the United States Supreme Court has decided that the failure to give a no-adverse-inference instruction can be analyzed for harmless error. In Carter, the U.S. Supreme Court expressly declined to reach this issue. Carter, 450 U.S. at 304, 101 S.Ct. 1112.
That Court articulated the test for applying Chapman's harmless-error analysis in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Court distinguished between "trial error," which is subject to harmless-error review, and "structural defects," which are not. Id. at 307-10, 111 S.Ct. 1246. Trial error occurs "during the presentation of the case to the jury, and ... may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Id. at 307-08, 111 S.Ct. 1246. A structural defect, on the other hand, affects "the framework within which the trial proceeds, rather than [being] simply an error in the trial process itself." Id. at 310, 111 S.Ct. 1246.
Applying Fulminante, the failure to give a requested, no-adverse-inference instruction is subject to harmless-error review. The danger in refusing a no-adverse-inference instruction is that "the jury will give evidentiary weight to a defendant's failure to testify." Carter, 450 U.S. at 305, 101 S.Ct. 1112. Such an error in the trial process does not rise to the level of a structural defect. This conclusion accords with that of most jurisdictions. See, e.g., Hunter v. Clark, 934 F.2d 856, 859-60 (7th Cir.1990), cert. denied, 502 U.S. 945, 112 S.Ct. 388, 116 L.Ed.2d 338 (1991); Finney v. Rothgerber, 751 F.2d 858, 864 (6th Cir.1985), cert. denied, 471 U.S. 1020, 105 S.Ct. 2048, 85 L.Ed.2d 310 (1985); Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir.1984); Burns v. State, 699 So.2d 646, 651-52 (Fla.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1063, 140 L.Ed.2d 123 (1998); Beathard v. State, 767 S.W.2d 423, 431-33 (Tex.Crim.App.1989); James v. Commonwealth, 679 S.W.2d 238, 239 (Ky.1984), cert. denied, 470 U.S. 1086, 105 S.Ct. 1849, 85 L.Ed.2d 147 (1985); Franklin v. State, 98 Nev. 266, 646 P.2d 543, 545-46 (1982); Parker v. State, 425 N.E.2d 628, 630 (Ind.1981); Richardson v. State, 402 So.2d 848, 852 (Miss.1981).
Here, however, the error was not harmless. The one aggravating circumstance found by the jury was based on physical evidence. That finding is undisputed. State v. Johnson, 968 S.W.2d 686, 701 (Mo. banc 1998). Under Missouri law, the jury has discretion to assess life imprisonment even if mitigating factors do not outweigh aggravating factors. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Section 565.030.4(4) RSMo 1994. In light of this discretion, the prejudice against a defendant who invokes the privilege -- prejudice which is "inescapably impressed on the jury's consciousness" -- is not purely speculative as the State suggests. See Carter, 450 U.S. at 301 n. 18, 101 S.Ct. 1112.
The State further argues that the error was harmless because the prosecutor never commented on appellant's silence to the jury. Adverse comment on a defendant's failure to testify is an independent violation of the Fifth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The refusal of a no-adverse-inference instruction also violates the Fifth Amendment. Carter, 450 U.S. at 301, 101 S.Ct. 1112. The trial court must give a no-adverse-inference instruction if requested by the defendant, whether or not the prosecutor makes any adverse comment. Id. at 301-303, 101 S.Ct. 1112. Generally, leaving the jury with no guidance on the Fifth Amendment privilege is more harmful, because "the inferences drawn by the jury [from a defendant's silence] may be unfairly broad." Id. at 301 n. 17, 101 S.Ct. 1112.
The State also asserts that since defense counsel discussed with the jurors appellant's right not to testify, there is no prejudice from the failure to give the instruction. During general voir dire -- five days before jury deliberations -- defense counsel told the venire that appellant had the right not to testify and asked whether any veniremember would draw an adverse inference from appellant's silence. Statements by defense counsel, however, "cannot have had the purging effect that an instruction from the judge would have had." Id. at 304, 101 S.Ct. 1112. Therefore, the failure to give the requested instruction was not harmless beyond a reasonable doubt in this case.
Because appellant's sentence is reversed, his other arguments need not be reached. However, one other point raises an issue from the 1991 guilt-phase proceedings.
Before appellant's 1991 trial, at a pretrial hearing, the State introduced a prior Georgia burglary conviction, in order to charge appellant as a prior offender. Section 558.021 RSMo 1994. Appellant claimed that the Georgia conviction was invalid because he had no attorney, and, consequently, the prior conviction could not be used at trial. The trial court admitted the Georgia conviction, finding that appellant had waived counsel. The State proffered no other prior convictions.
Appellant testified at trial. During the guilt phase, ...
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