State v. Strong

• Decision Date: 24 August 2004
• Docket Number: No. SC 85419.,SC 85419.
• Parties: STATE of Missouri, Respondent, v. Richard STRONG, Appellant.
• Court: Missouri Supreme Court

142 S.W.3d 702

STATE of Missouri, Respondent, v. Richard STRONG, Appellant.

No. SC 85419.

Supreme Court of Missouri, En Banc.

August 24, 2004.

Rehearing Denied September 28, 2004.

Appeal from the Circuit Court, St. Louis County, Gary M. Gaertner, Jr., J Janet M. Thompson, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

A jury convicted Richard Strong of two counts of first degree murder for killing Eva Washington and Zandrea Thomas. The trial court adopted the jury's penalty phase verdict and sentenced Strong to death. As a result, this Court has exclusive jurisdiction of his appeal. Mo. Const. art. V, sec. 3. The judgment is affirmed.

I. Facts

St. Ann police received a 911 call on October 23, 2000, at 3:30 p.m. The call was immediately disconnected. The dispatcher replayed the call and heard a scream. The dispatcher tried to redial the number repeatedly until officers arrived at the source of the call approximately two minutes later. The call originated from the apartment where Eva lived with her two daughters. The older daughter, Zandrea Thomas, was two years old. Strong is the father of the other girl, who was three months old.

When officers arrived at the apartment and knocked, initially there was no answer at the front or back door. They continued to knock and shouted, and Strong eventually came to the back door. Upon inquiries by the police, Strong initially told them Eva and the kids were sleeping. Strong meanwhile stepped outside and closed the door behind him.

The police again asked about Eva, and Strong told them she had gone to work. Because this was an inconsistent response, the police asked about the children, and Strong told them the kids were inside. The officers asked if they could check on the children, and Strong told them he had locked himself out.¹ Strong knocked on the door and called for someone to open it.

Officers noted that Strong was sweating profusely, had dark stains on the knees of his jeans, and had blood on his left hand. They ordered Strong to step aside and kicked in the door. Strong ran. When the officers chased him, Strong told them, "Just shoot me; just shoot me." After he was handcuffed, he told the officers, "I killed them."²

Inside the apartment, police found the dead bodies of Eva and Zandrea in a back bedroom. They had been stabbed repeatedly with a knife. On the bed, one of the officers found a large butcher knife and a three-month-old baby sitting next to a pool of blood. An autopsy revealed that Eva had been stabbed 21 times, with five slash wounds, and the tip of the knife used to stab her was embedded in her skull. The autopsy of two-year-old Zandrea showed she had been stabbed nine times and had 12 slash wounds.

Strong was charged with both murders. After a trial in St. Louis County, a jury returned a guilty verdict. At the penalty phase trial, the jury found the existence of two statutory aggravators for each murder³ and recommended a death sentence for Strong. The trial court sentenced Strong accordingly.

II. Standards of Review

This Court reviews the evidence presented at trial in the light most favorable to the verdict. State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999). The trial court is vested with broad discretion in determining the admissibility of evidence offered at the guilt and penalty phases of a capital case. State v. Storey, 40 S.W.3d 898, 903 (Mo. banc 2001); Middleton, 995 S.W.2d at 452. Error will be found only if this discretion was clearly abused. State v. Johns, 34 S.W.3d 93, 103 (Mo. banc 2000).

On direct appeal, this Court reviews 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." Storey, 40 S.W.3d at 903. Issues that were not preserved may be reviewed for plain error only, which requires a finding that manifest injustice or miscarriage of justice has resulted from the trial court error. Johns, 34 S.W.3d at 103-04; see Rule 30.20.

III. Issues on Appeal

On appeal, Strong alleges 12 points of error. For the sake of convenience, this opinion addresses his claims in the following order: A) the trial court erred in not sua sponte quashing the information in lieu of indictment for failure to charge any statutory aggravator (Strong's point 12); B) the trial court erred in denying the defense motion to disallow two of the state's peremptory challenges of venirepersons and in permitting the state to use only six of nine peremptory strikes (Strong's point 4); C) the trial court erred in sealing Eva's subpoenaed psychiatric records (Strong's point 5); D) the trial court erred in admitting photographs of the victims and the scene and a videotape of the scene during the guilt phase (Strong's point 7); E) the trial court erred in admitting police testimony that Strong was "nonchalant" after running from the apartment (Strong's point 8); F) the trial court erred in overruling the defense motion for judgment of acquittal, allowing the prosecutor's incorrect definition of "deliberation," and submitting instructions 5 and 6, which were based on MAI-CR3d 313.02 (Strong's point 2); G) the trial court erred during the penalty phase in admitting police testimony that Strong assaulted Eva in November 1999 (Strong's point 9); H) the trial court erred during the penalty phase in admitting evidence of unadjudicated bad acts (Strong's point 3); I) the trial court erred during the penalty phase in admitting photographs of the victims and their autopsies and in allowing the prosecutor to present a slide show during his penalty phase closing argument (Strong's point 1); J) the trial court erred in submitting instructions 16 and 17, which were based on MAI-CR3d 313.40 (Strong's point 6); and K) the trial court erred in allowing improper statements by the prosecutor during voir dire, the guilt phase, and the penalty phase (Strong's point 10). Section L includes an independent review of Strong's sentence and addresses his claims regarding the proportionality of his sentence and the state's proof of the statutory aggravator in section 565.032.2(7), RSMo 2000 (Strong's point 11).⁴ Finally, section M addresses a motion filed by the state to strike portions of Strong's appellate brief and appendix.

A. Information in Lieu of Indictment (Strong's point 12)

Strong claims the trial court plainly erred in not sua sponte quashing the information in lieu of indictment for failure to comply with Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). He argues that the state failed, in the indictment or in the information in lieu of indictment, to charge any statutory aggravating circumstance⁵ as was necessary to render him eligible for the death sentence if convicted.

Strong further contends that, because the information failed to plead any aggravating circumstances, the offense actually charged was unaggravated first degree murder, and the only authorized sentence is life imprisonment without probation or parole. Strong alleges these omissions by the state violated his constitutional rights to due process, a jury trial, and freedom from cruel and unusual punishment.

This Court has repeatedly held that statutory aggravating circumstances need not be pleaded in the information or indictment. State v. Glass, 136 S.W.3d 496, 513 (Mo. banc 2004); State v. Edwards, 116 S.W.3d 511, 543-44 (Mo. banc 2003); State v. Gilbert, 103 S.W.3d 743, 747 (Mo. banc 2003); State v. Tisius, 92 S.W.3d 751, 766-67 (Mo. banc 2002); State v. Cole, 71 S.W.3d 163, 171 (Mo. banc 2002). Pursuant to section 565.005.1, the state is required to give to the defendant, "[a]t a reasonable time before the commencement of the first stage of any trial of murder in the first degree," notice of the statutory aggravating circumstances it intends to submit in the event the defendant is convicted of first degree murder. Notice of statutory aggravating circumstances suffices in lieu of charging them in the information or indictment. Edwards, 116 S.W.3d at 543.

The assertion that this Court's holding violates Ring, Apprendi, and Jones has also been denied previously. Glass, 136 S.W.3d at 513. Strong further attempts to rely on United States v. Allen, 357 F.3d 745 (8th Cir.2004). Allen offers no support, however, as it has been vacated and scheduled for rehearing en banc.

The state filed its indictment on November 30, 2000, its notice of aggravating circumstances on March 20, 2001, and its information in lieu of indictment on April 30, 2002. Strong's guilt phase trial began February 26, 2003, and his penalty phase trial began on March 5, 2003. As such, he received nearly two years' notice that the state intended to prove the statutory aggravators in section 565.032.2(2) and (7), that the "offense was committed while [Strong] was engaged in the commission or attempted commission of another unlawful homicide" and that the "murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind" as to both Eva and Zandrea. This point is denied.

B. Batson Challenges (Strong's point 4)

Strong next raises two Batson⁶ challenges. He argues that the trial court erred in denying his motion to disallow the state's peremptory challenges of African-American venirepersons Bobo and Stevenson and in allowing the state to use only six of its nine peremptory challenges.

1.

"Under the Equal Protection Clause, a party may not exercise a per-emptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race." State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). There are three steps in a Batson, or race-based, challenge. Id. First, the defendant...