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State v. Deck6/1/1999
7), cert. denied, ___ U.S. ___, 118 S.Ct. 2379 (1998). Additionally, this Court has held that " n determining whether to declare a mistrial, the trial court may consider the spontaneity of the outburst, whether the prosecution was at fault, whether something similar, or even worse, could occur on retrial, and the further conduct of the trial." Id.
Deck does not point to specific instances in the record that indicate an "extreme emotional level," and therefore, it is difficult to do otherwise than defer to the trial court's discretion. A review of the record does not reflect the "extreme emotional level" Deck describes. There were apparently no emotional outbursts among the family members, only some muted crying during the testimony of the Long children. Furthermore, there is no reason to believe that the family members would not have the same reaction on retrial. In the absence of evidence that emotional outbursts actually occurred, the trial court did not abuse its discretion in overruling Deck's motion for a mistrial.
VI. Penalty Phase - Mitigating Instructions
A. Non-MAI Instructions
Deck next contends that his state and federal constitutional rights were denied when the trial court erroneously refused to submit two non-MAI mitigating circumstance instructions in the penalty phase. Deck's proposed instructions, loosely based on MAI-CR3d 313.44(a), listed six non-statutory mitigating circumstances for the jury's consideration. This Court again rejects this often-raised claim that the listing of non-statutory factors in mitigation is constitutionally required. State v. Clay, 975 S.W.2d 121, 133 (Mo. banc 1998) cert. denied, ___ U.S. ___, 119 S.Ct. 834 (1999); Rousan, 961 S.W.2d at 849.
B. Defective Submission of MAI-CR3d 313.44A
Deck raises the far more problematic claim that the defective submission of Instructions No. 8 and No. 13, the penalty phase instructions on the submission of mitigating circumstances, constituted plain error and violated his right to due process of law, to reliable sentencing, and to be free from cruel and unusual punishment as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 10 and 21, of the Missouri Constitution. The defect was that the final two paragraphs of MAI-CR3d 313.44A, the pattern mitigating circumstances instruction, were inadvertently omitted from Instructions No. 8 and No. 13. That omission, as Deck maintains, created a reasonable likelihood that the jurors mistakenly believed they had to find the existence of any specific mitigating circumstance by unanimous vote.
Instruction No. 8, as submitted to the jury, stated:
INSTRUCTION NO. 8
As to Count I, if you unanimously find that the facts and circumstances in aggravation of punishment, taken as a whole, warrant the imposition of a sentence of death upon the defendant, you must then determine whether there are facts or circumstances in mitigation of punishment which are sufficient to outweigh the facts and circumstances in aggravation of punishment. In deciding this question, you may consider all of the evidence presented in both the guilt and the punishment stages of the trial.
Instruction No. 13 was identical, except that it referred to Count III.
The final two paragraphs of MAI-CR 3d 313.44A, which were omitted from the instructions in this case, read as follows:
"You shall also consider any (other) facts or circumstances which you find from the evidence in mitigation of punishment."
It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of
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