STATE v. DAVIS

f any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case.'" State v. Tisius, 92 S.W.3d 751, 760 (Mo. banc 2002), quoting, State v. Mathews, 33 S.W.3d 658, 661 (Mo.App. 2000). Mr. Davis concedes the logical relevance of the evidence he claims was admitted improperly.

Evidence that is logically relevant is not necessarily admissible. The probative value of logically relevant evidence must be weighed against the risks it poses of unfair prejudice, cumulativeness, confusion of the issues, misleading the jury, undue delay or waste of time. Anderson, 76 S.W.3d at 276. Legally relevant evidence is evidence that survives this balancing and is admissible. By contrast, evidence is not legally relevant and, therefore, must be excluded if its costs outweigh its benefits. Id. "The determination of legal relevance . . . rests within the sound discretion of the trial court." Tisius, 92 S.W.3d at 760.

Here, the trial court acted well within its discretion in determining that the risks of unfair prejudice were not great enough to outweigh the probative value of the disputed evidence. While the videotape footage and still photographs made from that footage were highly disturbing, they were first-hand recorded accounts of the crimes charged in this case and so were of supreme probative value. They were potentially prejudicial, but that prejudice arose from the gruesome nature of Mr. Davis' crimes, not from any action of the State in the method of presenting the footage and photographs. The court was within its discretion in determining that the probative value of this evidence outweighed its prejudicial effect. See State v. Johnson, 930 S.W.2d 456, 462-63 (Mo.App. 1996) ("To exclude graphic evidence solely because it is graphic would deprive the State of evidence when it needs it the most: the evidence would be inadmissible to prosecute what are typically the most serious crimes").

As to the officers' testimony describing the events on the tapes, Mr. Davis offers no evidence that it inflamed unfair prejudice. The officers simply described additional events on the tapes in general terms in order to avoid the more prejudicial alternative of playing all the footage in its entirety. Similarly, Mr. Davis makes no showing that the court abused its discretion in allowing footage of Mr. Davis' inculpatory statements made during the police interview. Such admissions are highly relevant. They do not become unfairly prejudicial simply because they hurt Mr. Davis' case.

The State argues that Mr. Davis' objections to the admission of his inculpatory statements to police and Detective Howe's testimony regarding the contents of the tapes were not preserved properly and so should be reviewed for plain error. Rule 30.20. This Court concludes that the challenged evidence was admissible regardless of which standard of review is applied.

For similar reasons, this Court rejects Mr. Davis' argument that the evidence was unduly cumulative. In an effort to limit the jury's exposure to the entirety of the disturbing footage on the tapes, the jury was only shown a 90-minute edited version of the over seven and one-half hours of film. The officers' testimony about the contents of the tapes went to a description of the footage that the jury was not shown. Accordingly, these two strands of evidence were not duplicative. While the still photographs the State used were taken from the videotape footage, their use permitted the State to avoid having to revisit particular segments of footage during opening statement and closing argument. Finally, Mr. Davis' statements did not duplicate the above evidence. In those interviews, Mr. Davis admitted some culpability but was evasive or misleading as to his responsibility for some of the crimes with which he ultimately was charged.

E. Court Commenting about the Evidence

A number of the instructions submitting particular counts included a reference to the particular tape on which the alleged crime was depicted. For instance, Instruction No. 13 stated:

As to Count IV, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about May 14, 2006, . . . the defendant touched the breast of Marsha Spicer as depicted in "Tape B"

. . . .

(emphasis added). This instruction format was used to assist the jury in differentiating the numerous offenses submitted, as contemplated by the Notes on Use for MAI-CR 3d 304.02, which provide, in pertinent part:

In particular, Counts IV through IX, XIII through XXIII and XXV through XXVI, submitted in Instructions Nos. 13, 15, 17, 19, 21, 23, 31, 33, 35, 37, 39, 41, 43, 35, 47, 49, 51, 55 and 57, contained this kind of reference.

(c) Multiple Offenses — Same Victim, Short Period of Time.

If the defendant is charged with more than one crime involving the same victim on the same day, the time should be shown on each instruction as "at about [time of day or night] on" or "between the hours of [time of day or night] on" a specific date.

. . . .

If it is impossible to fix the occasion of the offense by time or date, the instruction should be modified by the Court to identify the occurrence by some other reference.

MAI-CR 3d 304.02(c).

Mr. Davis argues that these references were the equivalent of the trial court telling the jurors that the evidence referenced in the instruction would provide proof of the charged offense. While trial courts are barred from conduct during trial that can be construed as demonstrating a belief that the defendant is guilty, State v. Davis, 653 S.W.2d 167, 177 (Mo. banc 1983), overruled on other grounds by, Kuyper v. Stone County Comm'n, 838 S.W.2d 436, 439 (Mo. banc 1992), these references did not constitute such conduct.

As the State notes, the references to "Tape B" and similar references in the verdict directors were appropriate under the Notes on Use direction to "identify the occurrences by some other reference." Merely referencing time and date would have been unworkable due to discrepancies in the accuracy of the time and date stamp on the camera used by Mr. Davis. Mr. Davis has not suggested another method by which the jurors could have been informed how to determine which crime was being submitted in which verdict director. Further, Instruction No. 3 advised the jury that the court "does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are." This language would have acted as a safeguard, reducing the chance the jury assumed that the charged offenses were in fact depicted on the tapes simply because the instructions referred to the tapes as depicting the crimes. Mathes v. Sher Express, L.L.C., 200 S.W.3d 97, 110 (Mo.App. 2006) ("This instruction reduces the chances of a jury improperly concluding that a controverted fact has been assumed by the court to be true") (internal citation and quotation marks omitted).

Moreover, the evidence of Mr. Davis' guilt, set out in detail above, was so overwhelming that the references to the tapes in which the crimes were recorded in the verdict directors could not have had a decisive effect on the jury's determination of guilt. The entirety of the portions of the tapes played for the jury provided substantial proof of each of the charged offenses and, in closing argument, Mr. Davis conceded his guilt of all the sex crime counts and assault counts of which he was convicted, only contesting the first-degree murder count and the assault count on which he obtained a "not guilty" verdict. "Overwhelming evidence of guilt may lead an appellate court to find that a defendant was not prejudiced." State v. Banks, 215 S.W.3d 118, 121 (Mo. banc 2007). Because overwhelming evidence established Mr. Davis' guilt for these offenses, any error in use of the "as depicted in" references to the tapes in the verdict-directing instructions was not prejudicial.

F. Verdict Director Instructions Were Proper

Mr. Davis also argues that the instructions did not inform the jury adequately that it had to find unanimously that the State proved each element of each crime submitted in order to find against him as to that crime. The same point was raised and rejected in State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009). Johnson held that the jury instructions as a whole sufficiently advised the jury that its verdicts on each count must be unanimous as to each element and additional instructions on the requirement of unanimity were not necessary.

The Court reaffirms that holding. The jury was instructed, for example, that it could not find Mr. Davis guilty of first-degree murder, "unless [it found] and believe[d] from the evidence beyond a reasonable doubt each and all of these propositions." The jury also was instructed:

You will then discuss the case with your fellow jurors. Each of you must decide the case for yourself but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.

Your verdict, whether guilty or not guilty, must be agreed to by each juror. Although the verdict must be unanimous, the verdict should be signed by your foreperson alone.

When you have concluded your deliberations, you will complete the applicable form to which you unanimously agree and return it with all the unused forms and the written instructions of the Court.

As this Court noted in Johnson, this language was sufficient to apprise jurors that they must find unanimously every element of a particular offense beyond a reasonable doubt to return a guilty verdict on that offense.

G. Motion to Quash Information

Mr. Davis next argues that the court should have quashed the information because it failed to list statutory aggravators. In support, Mr. Davis cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As this Court has noted in numerous prior cases, neither Apprendi nor other cases require that the charging document list aggravating circumstances; the notice of aggravating circumstances under section 565.005.1 was adequate to notify Mr. Davis that he was charged with a capital offense. See, e.g., State v. Johnson, 284 S.W.3d 561, 589 (Mo. banc 2009); State v. Johnson, 207 S.W.3d 24, 48 (Mo. banc 2006); State v. Gill, 167 S.W.3d 184, 194 (Mo. banc 2005). The trial court did not err in declining to quash the information.

H. Jury Instructions regarding Effect of Mitigation Evidence

Next, Mr. Davis argues that Apprendi requires that juries in capital cases be instructed that the State bears the burden of proof during the section 565.030.4(3) step of determining whether mitigating circumstances outweigh aggravating circumstances. This Court reaffirms its prior holding that there is no requirement that the determination of the weight of mitigating and aggravating circumstances be established by the State beyond a reasonable doubt. Johnson, 284 S.W.3d. at 587-89.

I. Independent Proportionality Review

Finally, although Mr. Davis does not argue on appeal that his sentence is disproportionate to his crime, this Court has an independent obligation to conduct a proportionality review of the imposition of the death penalty in his case. State v. Edwards, 116 S.W.3d 511, 548 (Mo. banc 2003). Section 565.035.3 requires that all death penalty cases be reviewed for proportionality. State v. McLaughlin, 265 S.W.3d 257, 277 (Mo. banc 2008). Under section 565.035.3, this Court must determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance . . .;

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence, and the defendant.

This Court has undertaken an independent review of the record and does not find that the sentence of death was imposed under the influence of passion, prejudice or some other arbitrary factor, nor has Mr. Davis identified any such factor to the Court. The Court further finds that the evidence supports the jury's determinations: (1) that Mr. Davis had prior assaultive convictions for forcible rape and forcible sodomy; (2) that the murder was committed with depravity of mind because the crime involved binding Ms. Spicer, subjecting her to repeated acts of gruesome physical and sexual torture with the purpose of promoting her death, and that Mr. Davis killed or aided in killing Ms. Spicer while she was bound helplessly, thereby exhibiting a callous disregard for human life; and (3) that Mr. Davis was in the course of perpetrating the rape of Ms. Spicer when he murdered her.

To determine whether a sentence of death is excessive or disproportionate in comparison to the penalty imposed in similar cases, "[s]ection 565.035.3 requires consideration of all factually similar cases . . . including those resulting in a sentence of life imprisonment without the possibility of probation or parole." State v. Anderson, 306 S.W.3d 529, 545 (Mo. banc 2010) (Breckenridge, J., concurring in part and concurring in result in opinion joined in this regard by a majority of the court). This Court adheres to a familiar inquiry in applying this approach: It "continue[s] doing what it now does in regard to cases in which death was imposed — review them to determine whether the sentence of death is disproportionate in light of the crime, the defendant and the strength of the evidence . . . but . . . include[s] similar cases in which a life sentence was imposed in that analysis." State v. Deck, 303 S.W.3d 527, 560 (Mo. banc 2010) (Stith, J., concurring).

Compare State v. Deck, 303 S.W.3d 527, 550-53 (Mo. banc 2010) (no majority opinion on this issue as Judges Breckenridge, Stith and Wolff vote in favor of consideration of both cases in which death and life imprisonment were imposed, Judges Fischer and Russell and Chief Justice Price vote in favor of consideration only of cases in which death was imposed, with Judge Teitelman concurring in result only, thereby leaving only a plurality opinion on both sides of this issue).

The separate opinion of Judge Fischer suggests that because the legislature did not change section 565.035.3 once this Court, beginning in 1994, began determining proportionality only in relation to cases in which death was imposed, it must have agreed with this approach. But, as discussed in detail in the concurring opinion of Judge Stith in Deck, 303 S.W.3d at 555-63, neither did the legislature change the statute during the 16-year period from 1978 until 1994 when this Court applied section 565.035.3 to require that it consider similar cases in which either death or life in prison without parole were imposed (except making a change in 1984 that reinforced the requirement to consider both types of cases). Id. at 556. If there was an error in this Court not waiting for a legislative reaction to its cases before changing its interpretation of the statute, it occurred in 1994, when this Court sub silencio began not considering cases in which life imprisonment was imposed, not in Deck or in Anderson's return to this Court's original jurisprudence.

The separate opinion of Judge Fischer also suggests that there is some significance to the fact that this is the first time that an opinion denominated the "principal opinion" has interpreted the statute as requiring consideration of cases in which either death or life imprisonment are imposed. But in Anderson, a majority of the Court determined that this is what the statute requires. The scope of proportionality review is settled; Judge Breckenridge's concurring opinion, in which Judges Wolff, Stith and Teitelman joined as to the proportionality issue, established the governing law on this matter. Anderson, 306 S.W.3d at 545-47 (Breckenridge, J., concurring in part and concurring in result); Id. at 551 (Wolff, J., dissenting) (Judges Stith and Teitelman join in Judge Wolffs dissent).

In Anderson, the contrary and minority view — that the scope of proportionality review is limited to similar cases in which the death penalty was imposed, thereby excluding similar cases in which life without the possibility of probation or parole was imposed — had the support only of Judge Fischer, Chief Justice Price and Judge Russell. Anderson, 306 S.W.3d at 544 (principal opinion).

In any event, this Court's analysis must be governed by the words of the statute. When the statute itself is clear, this Court need not speculate as to what the legislature's inaction means. See, e.g., Hyde Park Housing P'ship v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993) ("Where the language is clear and unambiguous, there is no room for construction"). Instead, this Court "must give effect to [the statute's] plain meaning." Home Builders Ass'n of Greater St. Louis, Inc. v. City of Wildwood, 107 S.W.3d 235, 239 (Mo. banc 2003). To attempt to derive meaning from what the legislature did not do is an exercise in conjecture that in this case is entirely unnecessary.

As set out in detail in the separate opinion of Judge Stith in Deck, 303 S.W.3d at 555-63 (Stith, J., concurring in result), section 565.035 requires that the Court "shall accumulate the records of all cases in which the sentence of death or life imprisonment without probation or parole was imposed" and requires that this Court consider all "other similar cases" in determining whether the sentence of death is excessive or disproportionate in light of the crime, the defendant and the strength of the evidence. As noted in Deck, 303 S.W.3d at 559 (Stith, J., concurring in result), it would be pointless to require the Court to accumulate the records of cases in which life imprisonment was imposed just so it could put them to one side and not look at them when considering proportionality — the only purpose for which the cases were accumulated in the first place. Id. This Court considers both types of cases here.

After independently researching both death and life cases, this Court is hard-pressed to find anything in the case law similar to the appalling and gruesomely documented murder committed by Mr. Davis. This crime was unspeakable, Mr. Davis' conduct cold and calculating, and the evidence of guilt overwhelming. Ms. Spicer was beaten and sexually abused repeatedly before being smothered to death by Mr. Davis and his girlfriend for their sexual gratification. Many of these events, including the point of Ms. Spicer's death, were recorded on videotape by Mr. Davis himself.

This Court has affirmed sentences of death where the jury finds the defendant acted with a depraved mind in strangling or smothering the victim to death after raping or sodomizing or attempting to rape or sodomize the victim. State v. Brown, 902 S.W.2d 278, 283 (Mo. banc 1995); State v. Mercer, 618 S.W.2d 1, 3-4 (Mo. banc 1981). The death penalty has been imposed in many cases in which the defendant has murdered a victim in the course of, or just after, raping that victim. See, e.g., State v. McLaughlin, 265 S.W.3d 257, 260 (Mo. banc 2008); State v. Kinder, 942 S.W.2d 313, 320 (Mo. banc 1996); State v. Gray, 887 S.W.2d 369, 375 (Mo. banc 1994). This Court also has affirmed sentences of death when the defendant has a prior conviction for a serious assaultive crime, such as rape. See, e.g., State v. Sidebottom, 753 S.W.2d 915, 926, 927 (Mo. banc 1988).

IV. CONCLUSION

The Court concludes unanimously that the sentence imposed here was not disproportionate to the strength of the evidence, the crime or the defendant and the majority of the Court concludes that, for the reasons set out in this opinion, no reversible error occurred. The judgment is affirmed as to both guilt and punishment.

BRECKENRIDGE, J., concurs; FISCHER, J., concurs in separate opinion filed; PRICE, C.J., and RUSSELL, J., concur in opinion of FISCHER, J.

TEITELMAN, J., concurs in part and dissents in part in separate opinion filed; WOLFF, J., concurs in opinion of TEITELMAN, J.