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State v. Johns12/5/2000
and (3) whether the sentence was excessive or disproportionate to the penalty imposed in similar cases considering the crime, the strength of the evidence, and the defendant.
Johns argues that passion and prejudice influenced the jury in their decision to impose the death penalty. He points to pretrial publicity and the admission of character evidence as catalysts to the jury's unfair disposition. This argument is not persuasive. As noted above, the trial court did not abuse its discretion when it narrowed the jury pool by screening out any potential jurors with fixed opinions regarding the case. In addition, the trial court did not abuse its discretion when it admitted character evidence during the penalty phase. We find no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
We next review the trial court's findings to determine if the evidence supports -- beyond a reasonable doubt -- the existence of an aggravating circumstance and any other circumstance found. Section 565.035, RSMo 1994; State v. Clayton, 995 S.W.2d 468, 484 (Mo. banc 1999). In this case, the jury unanimously found two statutory aggravating circumstances as a basis for considering the death sentence. The evidence supports, beyond a reasonable doubt, a finding that Johns was convicted of an assault in 1989 and that the murder of Thomas Stewart involved depravity of mind. Section 565.032.2 (1) and (7), RSMo 1994.
Lastly, we must determine whether the sentence of death is excessive and disproportionate considering the crime, the strength of the evidence, and the defendant. Section 565.035.3 (3), RSMo 1994. In making this determination, we consider similar cases where the death penalty was imposed. Clayton, 995 S.W.2d at 484. This Court has upheld sentences of death in similar cases where the defendant evidenced a depravity of mind through acts of repeated and excessive physical abuse. See, e.g., State v. Knese, 985 S.W.2d 759, 778 (Mo. banc 1999); State v. Ervin, 979 S.W.2d 149, 165-66 (Mo. banc 1998); State v. Johnston, 957 S.W.2d 734, 756 (Mo. banc 1997); State v. Taylor, 929 S.W.2d 209, 222 (Mo. banc 1996). We have also found the death sentence appropriate where the fatal blow is dealt to the victim while the victim is lying injured and helpless, which the facts seem to indicate here. See, e.g., State v. Middleton, 995 S.W.2d 443, 467 (Mo. banc 1999); State v. Tokar, 918 S.W.2d 753, 773 (Mo. banc 1996). The penalty in this case is neither excessive nor disproportionate.
2.
In his final point, Johns complains that the proportionality review mandated by section 565.035, RSMo 1994, fails to provide meaningful review and violates his due process rights. We have rejected this argument. See State v. Middleton, 995 S.W.2d 443, 468 (Mo. banc 1999). Missouri's system of death sentence review is not unconstitutional. See Ramsey v. Bowersox, 149 F.3d 749, 754 (8th Cir. 1998) ("Missouri's proportionality review does not violate the Eighth Amendment, due process, or equal protection of the laws."). Johns' final point is denied.
IV. Conclusion
The judgment is affirmed.
Separate Opinion:
Dissenting opinion by Michael A. Wolff, Judge:
Because I believe Alis Ben (Joe) Johns was deprived of a fair trial with respect to his self-defense theory, I would grant him a new trial and, accordingly, I dissent from the principal opinion's upholding of the finding of guilt.
The Trial Court Erred on Self-Defense
Johns raises two issues of trial court error regarding his claim of self-defense. The first issue is the trial court's refusal to allo
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