State v. Zink
| Decision Date | 31 January 2006 |
| Docket Number | No. SC 86358.,SC 86358. |
| Citation | 181 S.W.3d 66 |
| Parties | STATE of Missouri, Respondent, v. David Stanley ZINK, Appellant. |
| Court | Missouri Supreme Court |
Rosemary E. Percival, Office of Public Defender, Kansas City, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Deborah Daniels, Asst. Attys. Gen., Jefferson City, for Respondent.
A jury convicted Appellant, David Stanley Zink, of one count of first-degree murder and recommended the death sentence. Judgment was entered consistent with the jury's recommendation. Appellant seeks reversal raising twelve points of error. This Court has jurisdiction pursuant to Mo. Const. art. V, sec. 3. Affirmed.
The facts, which this Court reviews in the light most favorable to the verdict,1 are: In the early morning hours of July 12, 2001, police responded to the report of a traffic accident near Stafford, Missouri. Upon their arrival, they found Amanda Morton's car abandoned with the engine running, headlights and hazards lights on, and driver's side window down. The authorities would later learn that Appellant had rear-ended Ms. Morton's car and that they both left the accident scene in Appellant's vehicle.
After Ms. Morton's disappearance was broadcast on the evening news, the owner of a motel near Camdenton, Missouri, recognized Ms. Morton's picture as a woman who had checked into a room with Appellant. The motel owner provided the police with Appellant's registration card, and using this information the police were able to apprehended Appellant at his home. Ultimately, Appellant waived his Miranda rights and confessed to killing and burying Ms. Morton.
Appellant would testify at trial that after leaving the motel he drove Ms. Morton to a cemetery, bound her with twine, broke her neck and strangled her. Approximately ten minutes later he attempted to sever her spinal cord with a knife to ensure her death. He further testified that it was his purpose to cause her death. The evidence also revealed that Appellant had sodomized Ms. Morton.
The jury found Appellant guilty of first-degree murder. During the penalty phase, the jury found the presence of three statutory aggravators to support its unanimous recommendation for a death sentence: (1) that Appellant had two prior convictions for aggravated rape; (2) that the murder was committed for the purpose of avoiding a lawful arrest; and (3) that the murder involved depravity of the mind and was outrageously and wantonly vile, horrible, and inhuman.
In Appellant's points II, III, IV, and V, he claims trial court error in association with allowing him to represent himself and with failing to replace standby counsel appointed from the public defender's office. Specifically he contends that the trial court's failure to replace the public defender in the first instance forced him to represent himself; that his waiver of the right to counsel was not given voluntarily, knowingly and intelligently; and that standby counsel forced him to present conflicting defenses thereby canceling out any meaningful defense. Appellant presented the defense of lack of deliberation to support a conviction for voluntary manslaughter as opposed to first-degree murder. Standby counsel presented the defense of diminished mental capacity.
A defendant has a constitutional right to conduct his own trial when he knowingly, intelligently, and in a timely fashion exercises that right.2 However, "[o]nce a pro se defendant invites or agrees to any substantial participation by (standby) counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously ... requests that standby counsel be silenced."3
Appellant moved the trial court to allow him to proceed without legal counsel. The transcript of the hearing on Appellant's motion and the legal file both confirm that Appellant was fully informed of the charges; the potential penalties he faced if convicted, including confinement or death; his rights to appointed counsel and to a trial by jury; the perils of self-representation; and all potential consequences associated with the waiver of counsel. He was also informed that any sentencing recommendations by the prosecutor would not be binding on the judge and that he had the right to appeal.
The transcripts reveal that the trial judge read a prepared waiver of counsel form to Appellant that was in compliance with section 600.051, which codifies all of the requirements for waiver of counsel. Appellant signed this form, including a statement that he understood the full consequences of the waiver. Appellant's waiver was given voluntarily, knowingly and intelligently.
The court offered Appellant two opportunities to reconsider his decision prior to trial and Appellant declined. Prior to the introduction of evidence, the court extended an invitation that Appellant could change his mind on self-representation at any time during the trial by simply notifying the court. Appellant did not accept this invitation at any time during the guilt phase of his trial, but he did turn his defense over to the public defenders for the sentencing phase of his trial.
The first day of trial, prior to the seating of the jury, Appellant gave his consent to allow standby counsel to address the defense of diminished capacity during opening statement. Appellant introduced standby counsel, stating, When the public defender addressed the jury, he outlined all of the evidence of the diminished mental capacity defense that he planned to present.
Appellant also consented to the introduction of evidence to support the diminished capacity defense, the submission of the diminished capacity jury instructions during the guilt and penalty phases of his trial, and the summation of this defense during closing arguments during the guilt and penalty phases of his trial. In fact, Appellant turned the penalty phase defense over to the public defenders, and at completion of the Appellant's case he stated to the court that it was his intent not to disrupt the diminished mental capacity defense and that this phase of the trial was the public defender's "ballgame." Appellant's alleged points of error have no merit.4
Appellant also raises two points, points I and VI, claiming prosecutorial misconduct. Appellant maintains that the prosecutor failed to timely disclose, and the trial court failed to admit, a police report that may have provided evidence of Ms. Morton habitually violating her curfew. Appellant believes this evidence was relevant as to whether Ms. Morton left the accident scene with him voluntarily and that when the trial court excluded this evidence, pursuant to the State's objection, that it prejudiced his case.
Appellant further claims prosecutorial misconduct in relation to the State's cross-examination of witnesses Dr. Kenneth Benedict and Dr. Mark Cunningham. Appellant claims that the prosecutor inappropriately biased the jury against out-of-state witnesses by asking Dr. Benedict why the defense had to travel so far to find a witness to support his defense. Appellant contends that the prosecutor biased the jury against all expert witnesses when asking Dr. Cunningham if the defendant should receive the death penalty, a question that "no" witness could legally answer.5 Appellant believes this left the jury with the impression that Dr. Cunningham was biased in favor of the defense.
In situations involving prosecutorial misconduct, the test is the fairness of the trial, not the culpability of the prosecutor.6 "Where prosecutorial misconduct is alleged, the erroneous action must rise to the level of `substantial prejudice' in order to justify reversal."7 "The test for `substantial prejudice' is whether the misconduct substantially swayed the judgment."8 With regard to the trial court's exclusion of the police report, "[t]rial courts have discretion to determine the relevancy of evidence, and appellate courts will reverse that determination only upon a showing of abuse of discretion."9
The record reveals that the prosecution disclosed the police report in question prior to trial and that the court found the evidence to be irrelevant. Appellant was being tried solely on the murder charge. Whether or not Ms. Morton left voluntarily with Appellant prior to his murdering her was irrelevant in the guilt phase of his trial because he admitted his guilt and intent to kill Ms. Morton. It was also irrelevant in the penalty phase because the jury found three statutory aggravators to support the sentence of death, none of which involved an allegation of the abduction or kidnapping of Ms. Morton. The trial court did not abuse its discretion when denying the introduction of this evidence, and even assuming, arguendo, that the court had erred with its exclusion, the evidence of Appellant's guilt was overwhelming, rebutting any presumption of prejudice associated with the exclusion of admissible evidence.10
With regard to the questions the prosecutor presented to defendant's experts, "[w]ide latitude is afforded the cross-examination of witnesses to test qualifications, credibility, skill or knowledge, and the value and accuracy of the expert's opinion."11 "Cross-examination of a witness to determine possible bias or motive is permissible and its parameters are within the broad discretion of the trial court."12 The prosecutor's questioning of Appellant's experts was directed at eliciting any bias favoring defendants or disfavoring the death penalty. These questions were appropriate subject matter for cross-examination and the trial court did not abuse its discretion in allowing them.
Appellant raises two evidentiary issues in...
To continue reading
Request your trial
-
McLaughlin v. Steele
...and verdict form.Id . at 377, 108 S.Ct. 1860.In the instant case the Supreme Court of Missouri relied on an earlier case, State v. Zink, 181 S.W.3d 66, 74 (Mo. banc 2005), which had rejected an argument that the same instruction and verdict form given here had “improperly raised [defendant'......
-
State v. McLaughlin
...proportions in these instructions. The question, thus, becomes one of statutory interpretation. Mr. McLaughlin concedes that State v. Zink, 181 S.W.3d 66, 74 (Mo. banc 2005), rejected an identical argument concerning whether section 565.030.4 requires unanimous findings, and neither party h......
-
Murrell v. State
...is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial. State v. Zink, 181 S.W.3d 66, 73 (Mo. banc 2. The Static-99 and MnSOST-R Missouri's SVP statute is civil in nature. See Kansas v. Hendricks, 521 U.S. at 367-68, 117 S.......
-
State v. McFadden
...completed by the jury, but this does not negate the fact that the necessary findings were made to support this aggravator.” State v. Zink, 181 S.W.3d 66, 76 n. 24 (Mo. banc 2005). Additionally, McFadden avers the limiting construction was void for vagueness. This Court has held previously t......