Missouri Revised Statutes

Transcription

1 Page 1 of 38 Missouri Revised Statutes Chapter 565 Offenses Against the Person August 28, 2009 Procedure for chapter The provisions of this chapter shall govern the construction and procedures for charging, trial, punishment and appellate review of any offense defined in this chapter and committed after July 1, The provisions of this chapter shall not govern the construction or procedures for charging, trial, punishment or appellate review of any offense committed before the effective date of this chapter. Such an offense must be construed, punished, charged, tried and reviewed on appeal according to applicable provisions of law existing prior to the effective date of this chapter in the same manner as if this chapter had not been enacted, the provisions of section 1.160, RSMo, notwithstanding. 3. All provisions of "The Criminal Code" or other law consistent with the provisions of this chapter shall apply to this chapter. In the event of a conflict, the provisions of this chapter shall govern the interpretation of the provisions of this chapter. 4. Persons accused of committing a homicide offense shall be prosecuted: (1) In the county in which the offense is committed; or (2) If the offense is committed partly in one county and partly in another, or if the elements of the offense occur in more than one county, then in any of the counties where any element of the offense occurred; or (3) In the county in which the body of the deceased victim is found; or (4) If subdivisions (1), (2), and (3) of this subsection do not apply, then in the county in which the victim lived. (L S.B. 276, A.L S.B. 448 A) Effective *No continuity with , as repealed by L S.B Definitions As used in this chapter, unless a different meaning is otherwise plainly required: (1) "Adequate cause" means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control; (2) "Conduct" includes any act or omission;

2 Page 2 of 38 (3) "Deliberation" means cool reflection for any length of time no matter how brief; (4) "Intoxicated condition" means under the influence of alcohol, a controlled substance, or drug, or any combination thereof; (5) "Operates" means physically driving or operating or being in actual physical control of a motor vehicle; (6) "Serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body; (7) "Sudden passion" means passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation; (8) "Trier" means the judge or jurors to whom issues of fact, guilt or innocence, or the assessment and declaration of punishment are submitted for decision. (L S.B. 276, A.L S.B. 448 A) Effective Culpable mental state may exist though different person killed--time between act and death no defense The culpable mental state necessary for a homicide offense may be found to exist if the only difference between what actually occurred and what was the object of the offender's state of mind is that a different person or persons were killed. 2. The length of time which transpires between conduct which results in a death and is the basis of a homicide offense and the event of such death is no defense to any charge of homicide. (L S.B. 276, A.L S.B. 448 A) Effective *No continuity with as repealed by L S.B Joinder of offenses, exception--prior offenders, procedure, exception, first degree murder-- joinder, first degree murder, waiver of death penalty Each homicide offense which is lawfully joined in the same indictment or information together with any homicide offense or offense other than a homicide shall be charged together with such offense in separate counts. A count charging any offense of homicide may only be charged and tried together with one or more counts of any other homicide or offense other than a homicide as provided in subsection 2 of section , RSMo. Except as provided in subsections 2, 3, and 4 of this section, no murder in the first degree offense may be tried together with any offense other than murder in the first degree. In the event of a joinder of homicide offenses, all offenses charged which are supported by the evidence in the case, together with all proper lesser offenses under section , shall, when requested by one of the parties or the court, be submitted to the jury or, in a jury-waived trial, considered by the judge. 2. A count charging any offense of homicide of a particular individual may be joined in an indictment or information and tried with one or more counts charging alternatively any other homicide or offense other than a

3 Page 3 of 38 homicide committed against that individual. The state shall not be required to make an election as to the alternative count on which it will proceed. This subsection in no way limits the right to try in the conjunctive, where they are properly joined under subsection 1 of this section, either separate offenses other than murder in the first degree or separate offenses of murder in the first degree committed against different individuals. 3. When a defendant has been charged and proven before trial to be a prior offender pursuant to chapter 558, RSMo, so that the judge shall assess punishment and not a jury for an offense other than murder in the first degree, that offense may be tried and submitted to the trier together with any murder in the first degree charge with which it is lawfully joined. In such case the judge will assess punishment on any offense joined with a murder in the first degree charge according to law and, when the trier is a jury, it shall be instructed upon punishment on the charge of murder in the first degree in accordance with section When the state waives the death penalty for a murder first degree offense, that offense may be tried and submitted to the trier together with any other charge with which it is lawfully joined. (L S.B. 276, A.L S.B. 448 A, A.L S.B. 180) *No continuity with as repealed by L S.B (1989) Plain language of statute indicates circumstances allowing joinder of offenses with first degree murder are limited; however, where the charges arise from the same transaction and relate to acts committed against the same victim, the murder and armed criminal action can be joined and tried together. (Mo.banc) State ex rel. Bulloch v. Seier, 771 S.W.2d 71. Prior to trial for first degree murder, opposing counsels to furnish requested information, rules applied At a reasonable time before the commencement of the first stage of any trial of murder in the first degree at which the death penalty is not waived, the state and defendant, upon request and without order of the court, shall serve counsel of the opposing party with: (1) A list of all aggravating or mitigating circumstances as provided in subsection 1 of section , which the party intends to prove at the second stage of the trial; (2) The names of all persons whom the party intends to call as witnesses at the second stage of the trial; (3) Copies or locations and custodian of any books, papers, documents, photographs or objects which the party intends to offer at the second stage of the trial. If copies of such materials are not supplied to opposing counsel, the party shall cause them to be made available for inspection and copying without order of the court. 2. The disclosures required in subsection 1 of this section are supplemental to those required by rules of the supreme court relating to a continuing duty to disclose information, the use of matters disclosed, matters not subject to disclosure, protective orders, and sanctions for failure to comply with an applicable discovery rule or order, all of which shall also apply to any disclosure required by this section. (L S.B. 276, A.L S.B. 448 A) Effective *No continuity with as repealed by L S.B Waiver of jury trial permitted, when At any time before the commencement of the trial of a homicide offense, the defendant may, with the

4 Page 4 of 38 assent of the court, waive a trial by jury and agree to submit all issues in the case to the court, whose finding shall have the force and effect of a verdict of a jury. Such a waiver must include a waiver of a trial by jury of all issues and offenses charged in the case, including the punishment to be assessed and imposed if the defendant is found guilty. 2. No defendant who pleads guilty to a homicide offense or who is found guilty of a homicide offense after trial to the court without a jury shall be permitted a trial by jury on the issue of the punishment to be imposed, except by agreement of the state. 3. If a defendant is found guilty of murder in the first degree after a jury trial in which the state has not waived the death penalty, the defendant may not waive a jury trial of the issue of the punishment to be imposed, except by agreement with the state and the court. 4. Any waiver of a jury trial and agreement permitted by this section shall be entered in the court record. (L S.B. 276, A.L S.B. 448 A) Effective *No continuity with as repealed by L S.B (2002) Arizona statute allowing trial judge to determine presence or absence of aggravating factors required for imposition of death penalty violates Sixth Amendment right to a jury trial. Ring v. Arizona, 122 S.Ct (U.S. Supreme Court). First degree murder, penalty--person under sixteen years of age not to receive death penalty A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter. 2. Murder in the first degree is a class A felony, and the punishment shall be either death or imprisonment for life without eligibility for probation or parole, or release except by act of the governor; except that, if a person has not reached his sixteenth birthday at the time of the commission of the crime, the punishment shall be imprisonment for life without eligibility for probation or parole, or release except by act of the governor. (L S.B. 276, A.L S.B. 448 A, A.L H.B. 974) CROSS REFERENCE: Execution, location, duties of the warden, RSMo Second degree murder, penalty A person commits the crime of murder in the second degree if he: (1) Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person; or (2) Commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony. 2. Murder in the second degree is a class A felony, and the punishment for second degree murder shall be in

5 Page 5 of 38 addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter. 3. Notwithstanding section , RSMo, and section , in any charge of murder in the second degree, the jury shall be instructed on, or, in a jury-waived trial, the judge shall consider, any and all of the subdivisions in subsection 1 of this section which are supported by the evidence and requested by one of the parties or the court. (L S.B. 276, A.L S.B. 448 A) Effective *No continuity with as repealed by L S.B CROSS REFERENCE: No bail, certain defendants, certain offenses, RSMo (1990) Reduction in sentence was available to defendant when statute which limited maximum term of imprisonment became effective before state brought charges but after crime was committed. (Mo.App.) Searcy v. State, 784 S.W.2d 911. (1998) Defendant may be charged under the felony murder statute instead of involuntary manslaughter at the prosecutor's discretion when both apply. State v. Pembleton, 978 S.W.2d 352 (E.D.Mo.). (2004) Unborn child is a person for purposes of section. State v. Rollen, 133 S.W.3d 57 (Mo.App.E.D.). Voluntary manslaughter, penalty--under influence of sudden passion, defendant's burden to inject A person commits the crime of voluntary manslaughter if he: (1) Causes the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section , except that he caused the death under the influence of sudden passion arising from adequate cause; or (2) Knowingly assists another in the commission of self-murder. 2. The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of subsection 1 of this section. 3. Voluntary manslaughter is a class B felony. (L S.B. 276, A.L S.B. 448 A) Effective Involuntary manslaughter, penalty A person commits the crime of involuntary manslaughter in the first degree if he or she: (1) Recklessly causes the death of another person; or (2) While in an intoxicated condition operates a motor vehicle or vessel in this state and, when so operating, acts with criminal negligence to cause the death of any person; or

6 Page 6 of 38 (3) While in an intoxicated condition operates a motor vehicle or vessel in this state, and, when so operating, acts with criminal negligence to: (a) Cause the death of any person not a passenger in the vehicle or vessel operated by the defendant, including the death of an individual that results from the defendant's vehicle leaving a highway, as defined by section , RSMo, or the highway's right-of-way; or vessel leaving the water; or (b) Cause the death of two or more persons; or (c) Cause the death of any person while he or she has a blood alcohol content of at least eighteen-hundredths of one percent by weight of alcohol in such person's blood; or (4) Operates a motor vehicle in violation of subsection 2 of section , RSMo, and when so operating, acts with criminal negligence to cause the death of any person authorized to operate an emergency vehicle, as defined in section , RSMo, while such person is in the performance of official duties; (5) Operates a vessel in violation of subsections 1 and 2 of section , RSMo, and when so operating acts with criminal negligence to cause the death of any person authorized to operate an emergency watercraft, as defined in section , RSMo, while such person is in the performance of official duties. 2. Involuntary manslaughter in the first degree under subdivision (1) or (2) of subsection 1 of this section is a class C felony. Involuntary manslaughter in the first degree under subdivision (3) of subsection 1 of this section is a class B felony. A second or subsequent violation of subdivision (3) of subsection 1 of this section is a class A felony. For any violation of subdivision (3) of subsection 1 of this section, the minimum prison term which the defendant must serve shall be eighty-five percent of his or her sentence. Any violation of subdivisions (4) and (5) of subsection 1 of this section is a class B felony. 3. A person commits the crime of involuntary manslaughter in the second degree if he acts with criminal negligence to cause the death of any person. 4. Involuntary manslaughter in the second degree is a class D felony. (L S.B. 276, A.L S.B. 448 A, A.L H.B. 1596, A.L S.B. 328, et al., A.L H.B. 972 merged with S.B. 37, et al., A.L st Ex. Sess. H.B. 2, A.L S.B. 872, et al., A.L H.B. 1715) Lesser degree offenses of first and second degree murder--instruction on lesser offenses, when With the exceptions provided in subsection 3 of this section and subsection 3 of section , section , RSMo, shall be used for the purpose of consideration of lesser offenses by the trier in all homicide cases. 2. The following lists shall comprise, in the order listed, the lesser degree offenses: (1) The lesser degree offenses of murder in the first degree are: (a) Murder in the second degree under subdivisions (1) and (2) of subsection 1 of section ; (b) Voluntary manslaughter under subdivision (1) of subsection 1 of section ; and (c) Involuntary manslaughter under subdivision (1) of subsection 1 of section ; (2) The lesser degree offenses of murder in the second degree are:

7 Page 7 of 38 (a) Voluntary manslaughter under subdivision (1) of subsection 1 of section ; and (b) Involuntary manslaughter under subdivision (1) of subsection 1 of section No instruction on a lesser included offense shall be submitted unless requested by one of the parties or the court. (L S.B. 276, A.L S.B. 448 A) Effective Trial procedure, first degree murder Where murder in the first degree is charged but not submitted or where the state waives the death penalty, the submission to the trier and all subsequent proceedings in the case shall proceed as in all other criminal cases with a single stage trial in which guilt and punishment are submitted together. 2. Where murder in the first degree is submitted to the trier without a waiver of the death penalty, the trial shall proceed in two stages before the same trier. At the first stage the trier shall decide only whether the defendant is guilty or not guilty of any submitted offense. The issue of punishment shall not be submitted to the trier at the first stage. If an offense is charged other than murder in the first degree in a count together with a count of murder in the first degree, the trial judge shall assess punishment on any such offense according to law, after the defendant is found guilty of such offense and after he finds the defendant to be a prior offender pursuant to chapter 558, RSMo. 3. If murder in the first degree is submitted and the death penalty was not waived but the trier finds the defendant guilty of a lesser homicide, a second stage of the trial shall proceed at which the only issue shall be the punishment to be assessed and declared. No further evidence shall be received. If the trier is a jury it shall be instructed on the law. The attorneys may then argue as in other criminal cases the issue of punishment, after which the trier shall assess and declare the punishment as in all other criminal cases. 4. If the trier at the first stage of a trial where the death penalty was not waived finds the defendant guilty of murder in the first degree, a second stage of the trial shall proceed at which the only issue shall be the punishment to be assessed and declared. Evidence in aggravation and mitigation of punishment, including but not limited to evidence supporting any of the aggravating or mitigating circumstances listed in subsection 2 or 3 of section , may be presented subject to the rules of evidence at criminal trials. Such evidence may include, within the discretion of the court, evidence concerning the murder victim and the impact of the crime upon the family of the victim and others. Rebuttal and surrebuttal evidence may be presented. The state shall be the first to proceed. If the trier is a jury it shall be instructed on the law. The attorneys may then argue the issue of punishment to the jury, and the state shall have the right to open and close the argument. The trier shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor: (1) If the trier finds by a preponderance of the evidence that the defendant is mentally retarded; or (2) If the trier does not find beyond a reasonable doubt at least one of the statutory aggravating circumstances set out in subsection 2 of section ; or (3) If the trier concludes that there is evidence in mitigation of punishment, including but not limited to evidence supporting the statutory mitigating circumstances listed in subsection 3 of section , which is sufficient to outweigh the evidence in aggravation of punishment found by the trier; or (4) If the trier decides under all of the circumstances not to assess and declare the punishment at death. If the trier is a jury it shall be so instructed.

8 Page 8 of 38 If the trier assesses and declares the punishment at death it shall, in its findings or verdict, set out in writing the aggravating circumstance or circumstances listed in subsection 2 of section which it found beyond a reasonable doubt. If the trier is a jury it shall be instructed before the case is submitted that if it is unable to decide or agree upon the punishment the court shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor or death. The court shall follow the same procedure as set out in this section whenever it is required to determine punishment for murder in the first degree. 5. Upon written agreement of the parties and with leave of the court, the issue of the defendant's mental retardation may be taken up by the court and decided prior to trial without prejudicing the defendant's right to have the issue submitted to the trier of fact as provided in subsection 4 of this section. 6. As used in this section, the terms "mental retardation" or "mentally retarded" refer to a condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitations in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which conditions are manifested and documented before eighteen years of age. 7. The provisions of this section shall only govern offenses committed on or after August 28, (L S.B. 276, A.L S.B. 448 A, A.L H.B. 562, A.L S.B. 267) (2003) Allowing trial judge independently to go through four-step process required by subsection 4 of section once jury deadlocked on defendant's punishment violates Ring v. Arizona requirement that the jury rather than the judge determine the facts on which the death penalty is issued. State v. Whitfield, 107 S.W.3d 253 (Mo.banc). Evidence to be considered in assessing punishment in first degree murder cases for which death penalty authorized In all cases of murder in the first degree for which the death penalty is authorized, the judge in a jurywaived trial shall consider, or he shall include in his instructions to the jury for it to consider: (1) Whether a statutory aggravating circumstance or circumstances enumerated in subsection 2 of this section is established by the evidence beyond a reasonable doubt; and (2) If a statutory aggravating circumstance or circumstances is proven beyond a reasonable doubt, whether the evidence as a whole justifies a sentence of death or a sentence of life imprisonment without eligibility for probation, parole, or release except by act of the governor. In determining the issues enumerated in subdivisions (1) and (2) of this subsection, the trier shall consider all evidence which it finds to be in aggravation or mitigation of punishment, including evidence received during the first stage of the trial and evidence supporting any of the statutory aggravating or mitigating circumstances set out in subsections 2 and 3 of this section. If the trier is a jury, it shall not be instructed upon any specific evidence which may be in aggravation or mitigation of punishment, but shall be instructed that each juror shall consider any evidence which he considers to be aggravating or mitigating. 2. Statutory aggravating circumstances for a murder in the first degree offense shall be limited to the following: (1) The offense was committed by a person with a prior record of conviction for murder in the first degree, or the offense was committed by a person who has one or more serious assaultive criminal convictions; (2) The murder in the first degree offense was committed while the offender was engaged in the commission or attempted commission of another unlawful homicide; (3) The offender by his act of murder in the first degree knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person;

9 Page 9 of 38 (4) The offender committed the offense of murder in the first degree for himself or another, for the purpose of receiving money or any other thing of monetary value from the victim of the murder or another; (5) The murder in the first degree was committed against a judicial officer, former judicial officer, prosecuting attorney or former prosecuting attorney, circuit attorney or former circuit attorney, assistant prosecuting attorney or former assistant prosecuting attorney, assistant circuit attorney or former assistant circuit attorney, peace officer or former peace officer, elected official or former elected official during or because of the exercise of his official duty; (6) The offender caused or directed another to commit murder in the first degree or committed murder in the first degree as an agent or employee of another person; (7) The murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind; (8) The murder in the first degree was committed against any peace officer, or fireman while engaged in the performance of his official duty; (9) The murder in the first degree was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; (10) The murder in the first degree was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another; (11) The murder in the first degree was committed while the defendant was engaged in the perpetration or was aiding or encouraging another person to perpetrate or attempt to perpetrate a felony of any degree of rape, sodomy, burglary, robbery, kidnapping, or any felony offense in chapter 195, RSMo; (12) The murdered individual was a witness or potential witness in any past or pending investigation or past or pending prosecution, and was killed as a result of his status as a witness or potential witness; (13) The murdered individual was an employee of an institution or facility of the department of corrections of this state or local correction agency and was killed in the course of performing his official duties, or the murdered individual was an inmate of such institution or facility; (14) The murdered individual was killed as a result of the hijacking of an airplane, train, ship, bus or other public conveyance; (15) The murder was committed for the purpose of concealing or attempting to conceal any felony offense defined in chapter 195, RSMo; (16) The murder was committed for the purpose of causing or attempting to cause a person to refrain from initiating or aiding in the prosecution of a felony offense defined in chapter 195, RSMo; (17) The murder was committed during the commission of a crime which is part of a pattern of criminal street gang activity as defined in section Statutory mitigating circumstances shall include the following: (1) The defendant has no significant history of prior criminal activity; (2) The murder in the first degree was committed while the defendant was under the influence of extreme mental or emotional disturbance; (3) The victim was a participant in the defendant's conduct or consented to the act;

10 Page 10 of 38 (4) The defendant was an accomplice in the murder in the first degree committed by another person and his participation was relatively minor; (5) The defendant acted under extreme duress or under the substantial domination of another person; (6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; (7) The age of the defendant at the time of the crime. (L S.B. 276, A.L S.B. 448 A, A.L S.B. 215 & 58, A.L H.B. 562) (1992) Trial court violated the Eighth Amendment by refusing to give the mitigating-circumstance instruction that defendant requested -- "The defendant has no significant history of prior criminal activity." Missouri statutes prohibit the introduction of a defendant's juvenile record for any purpose. Lashley v. Armontrout, 957 F.2d 1495 (8th Cir.). (1997) The offense must be a felony to be considered a serious assaultive offense. State v. Whitfield, 939 S.W.2d 361 (Mo.banc). Supreme court to review all death sentences, procedure--powers of court--assistant to court authorized, duties Whenever the death penalty is imposed in any case, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the supreme court of Missouri. The circuit clerk of the court trying the case, within ten days after receiving the transcript, shall transmit the entire record and transcript to the supreme court together with a notice prepared by the circuit clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report by the judge shall be in the form of a standard questionnaire prepared and supplied by the supreme court of Missouri. 2. The supreme court of Missouri shall consider the punishment as well as any errors enumerated by way of appeal. 3. With regard to the sentence, the supreme court shall determine: (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection 2 of section and any other circumstance found; (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. 4. Both the defendant and the state shall have the right to submit briefs within the time provided by the supreme court, and to present oral argument to the supreme court. 5. The supreme court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the supreme court, with regard to review of death sentences, shall be authorized to: (1) Affirm the sentence of death; or (2) Set the sentence aside and resentence the defendant to life imprisonment without eligibility for probation,

11 Page 11 of 38 parole, or release except by act of the governor; or (3) Set the sentence aside and remand the case for retrial of the punishment hearing. A new jury shall be selected or a jury may be waived by agreement of both parties and then the punishment trial shall proceed in accordance with this chapter, with the exception that the evidence of the guilty verdict shall be admissible in the new trial together with the official transcript of any testimony and evidence properly admitted in each stage of the original trial where relevant to determine punishment. 6. There shall be an assistant to the supreme court, who shall be an attorney appointed by the supreme court and who shall serve at the pleasure of the court. The court shall accumulate the records of all cases in which the sentence of death or life imprisonment without probation or parole was imposed after May 26, 1977, or such earlier date as the court may deem appropriate. The assistant shall provide the court with whatever extracted information the court desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant. The court shall be authorized to employ an appropriate staff, within the limits of appropriations made for that purpose, and such methods to compile such data as are deemed by the supreme court to be appropriate and relevant to the statutory questions concerning the validity of the sentence. The office of the assistant to the supreme court shall be attached to the office of the clerk of the supreme court for administrative purposes. 7. In addition to the mandatory sentence review, there shall be a right of direct appeal of the conviction to the supreme court of Missouri. This right of appeal may be waived by the defendant. If an appeal is taken, the appeal and the sentence review shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence. (L S.B. 276, A.L S.B. 448 A) Effective (1995) The word "arbitrary" is to be read narrowly to describe rogue factors like passion and prejudice that a jury should not deliberate upon when it imposes a sentence of death. Oxford v. Delo, 59 F.3d 741 (8th Cir.). Death penalty, if held unconstitutional, resentencing procedure In the event that the death penalty provided in this chapter is held to be unconstitutional, any person convicted of murder in the first degree shall be sentenced by the court to life imprisonment without eligibility for probation, parole, or release except by act of the governor, with the exception that when a specific aggravating circumstance found in a case is held to be unconstitutional or invalid for another reason, the supreme court of Missouri is further authorized to remand the case for resentencing or retrial of the punishment pursuant to subsection 5 of section In the event that any death sentence imposed pursuant to this chapter is held to be unconstitutional, the trial court which previously sentenced the defendant to death shall cause the defendant to be brought before the court and shall sentence the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the governor, with the exception that when a specific aggravating circumstance found in a case is held to be inapplicable, unconstitutional or invalid for another reason, the supreme court of Missouri is further authorized to remand the case for retrial of the punishment pursuant to subsection 5 of section (L S.B. 276, A.L S.B. 448 A) Effective Assault, first degree, penalty.

12 Page 12 of A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person. 2. Assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony. (L S.B. 60, A.L S.B. 276, A.L S.B. 448 A) Effective CROSS REFERENCE: No bail, certain defendants, certain offenses, RSMo Assault, second degree, penalty A person commits the crime of assault in the second degree if he: (1) Attempts to kill or knowingly causes or attempts to cause serious physical injury to another person under the influence of sudden passion arising out of adequate cause; or (2) Attempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument; or (3) Recklessly causes serious physical injury to another person; or (4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself; or (5) Recklessly causes physical injury to another person by means of discharge of a firearm; or (6) Operates a motor vehicle in violation of subsection 2 of section , RSMo, and when so operating, acts with criminal negligence to cause physical injury to any person authorized to operate an emergency vehicle, as defined in section , RSMo, while such person is in the performance of official duties. 2. The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of subsection 1 of this section. 3. Assault in the second degree is a class C felony. (L S.B. 60, A.L S.B. 276, A.L S.B. 448 A, S.B. 602, A.L S.B. 180, A.L S.B. 872, et al.) (1984) "Physical injury", terms used in instructions were terms of common usage and no definition of such terms is required. (Mo.App.) State v. Mace, 665 S.W.2d 655. Prior and persistent domestic violence offenders--definitions--sentencing--procedure at trial-- evidence of prior convictions, proof, how heard--past history of domestic violence, evidence admissible As used in this section, the following terms mean:

13 Page 13 of 38 (1) "Domestic assault offense": (a) The commission of the crime of domestic assault in the first degree or domestic assault in the second degree; or (b) The commission of the crime of assault in the first degree or assault in the second degree if the victim of the assault was a family or household member; (c) The commission of a crime in another state, or any federal, tribal, or military offense which, if committed in this state, would be a violation of any offense listed in paragraph (a) or (b) of this subdivision; (2) "Family" or "household member", spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past and adults who have a child in common regardless of whether they have been married or have resided together at any time; (3) "Persistent domestic violence offender", a person who has pleaded guilty to or has been found guilty of two or more domestic assault offenses, where such two or more offenses occurred within ten years of the occurrence of the domestic assault offense for which the person is charged; and (4) "Prior domestic violence offender", a person who has pleaded guilty to or has been found guilty of one domestic assault offense, where such prior offense occurred within five years of the occurrence of the domestic assault offense for which the person is charged. 2. No court shall suspend the imposition of sentence as to a prior or persistent domestic violence offender pursuant to this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section , RSMo, to the contrary notwithstanding, nor shall such person be eligible for parole or probation until such person has served a minimum of six months' imprisonment. 3. The court shall find the defendant to be a prior domestic violence offender or persistent domestic violence offender, if: (1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior domestic violence offender or persistent domestic violence offender; and (2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior domestic violence offender or persistent domestic violence offender; and (3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior domestic violence offender or persistent domestic violence offender. 4. In a jury trial, such facts shall be pleaded, established and found prior to submission to the jury outside of its hearing. 5. In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing. 6. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings. 7. The defendant may waive proof of the facts alleged. 8. Nothing in this section shall prevent the use of presentence investigations or commitments. 9. At the sentencing hearing both the state and the defendant shall be permitted to present additional information

14 Page 14 of 38 bearing on the issue of sentence. 10. The pleas or findings of guilty shall be prior to the date of commission of the present offense. 11. The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilty, to assess and declare the punishment as part of its verdict in cases of prior domestic violence offenders or persistent domestic violence offenders. 12. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon. 13. Evidence of similar criminal convictions of domestic violence pursuant to this chapter, chapter 566, RSMo, or chapter 568, RSMo, within five years of the offense at issue, shall be admissible for the purposes of showing a past history of domestic violence. 14. Any person who has pleaded guilty to or been found guilty of a violation of section shall be sentenced to the authorized term of imprisonment for a class A felony if the court finds the offender is a prior domestic violence offender. The offender shall be sentenced to the authorized term of imprisonment for a class A felony which term shall be served without probation or parole if the court finds the offender is a persistent domestic violence offender or the prior domestic violence offender inflicts serious physical injury on the victim. 15. Any person who has pleaded guilty to or been found guilty of a violation of section shall be sentenced: (1) To the authorized term of imprisonment for a class B felony if the court finds the offender is a prior domestic violence offender; or (2) To the authorized term of imprisonment for a class A felony if the court finds the offender is a persistent domestic violence offender. (L H.B , 2, B, A.L H.B. 1677, et al., A.L H.B. 62) Unlawful endangerment of another, penalty A person commits the crime of unlawful endangerment of another if, while engaged in or as a part of the enterprise for the production of a controlled substance, he protects or attempts to protect the production of the controlled substance by creating, setting up, building, erecting, or using any device or weapon which causes or is intended to cause physical injury to another person. 2. Unlawful endangerment of another is a class C felony. (L S.B. 450) Effective Assault in the third degree A person commits the crime of assault in the third degree if:

15 Page 15 of 38 (1) The person attempts to cause or recklessly causes physical injury to another person; or (2) With criminal negligence the person causes physical injury to another person by means of a deadly weapon; or (3) The person purposely places another person in apprehension of immediate physical injury; or (4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person; or (5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative; or (6) The person knowingly causes physical contact with an incapacitated person, as defined in section , RSMo, which a reasonable person, who is not incapacitated, would consider offensive or provocative. 2. Except as provided in subsections 3 and 4 of this section, assault in the third degree is a class A misdemeanor. 3. A person who violates the provisions of subdivision (3) or (5) of subsection 1 of this section is guilty of a class C misdemeanor. 4. A person who has pled guilty to or been found guilty of the crime of assault in the third degree more than two times against any family or household member as defined in section , RSMo, is guilty of a class D felony for the third or any subsequent commission of the crime of assault in the third degree when a class A misdemeanor. The offenses described in this subsection may be against the same family or household member or against different family or household members. (L S.B. 60, A.L H.B. 1918) CROSS REFERENCES: Civil action for ethnic intimidation, RSMo Violation of this section may also be ethnic intimidation, RSMo (2006) Assault in the third degree requires proof that defendant knew victim would regard contact as offensive or provocative, and thus is not a lesser-included offense of endangering the welfare of a child. State v. Short, 186 S.W.3d 828 (Mo.App.E.D.). Domestic assault, first degree--penalty A person commits the crime of domestic assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section , RSMo. 2. Domestic assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim or has previously pleaded guilty to or been found guilty of committing this crime, in which case it is a class A felony. (L H.B. 1677, et al., A.L H.B. 583) Domestic assault, second degree--penalty.

16 Page 16 of A person commits the crime of domestic assault in the second degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section , RSMo, and he or she: (1) Attempts to cause or knowingly causes physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation; or (2) Recklessly causes serious physical injury to such family or household member; or (3) Recklessly causes physical injury to such family or household member by means of any deadly weapon. 2. Domestic assault in the second degree is a class C felony. (L H.B. 1677, et al.) Domestic assault, third degree--penalty A person commits the crime of domestic assault in the third degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section , RSMo, and: (1) The person attempts to cause or recklessly causes physical injury to such family or household member; or (2) With criminal negligence the person causes physical injury to such family or household member by means of a deadly weapon or dangerous instrument; or (3) The person purposely places such family or household member in apprehension of immediate physical injury by any means; or (4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to such family or household member; or (5) The person knowingly causes physical contact with such family or household member knowing the other person will regard the contact as offensive; or (6) The person knowingly attempts to cause or causes the isolation of such family or household member by unreasonably and substantially restricting or limiting such family or household member's access to other persons, telecommunication devices or transportation for the purpose of isolation. 2. Except as provided in subsection 3 of this section, domestic assault in the third degree is a class A misdemeanor. 3. A person who has pleaded guilty to or been found guilty of the crime of domestic assault in the third degree more than two times against any family or household member as defined in section , RSMo, is guilty of a class D felony for the third or any subsequent commission of the crime of domestic assault. The offenses described in this subsection may be against the same family or household member or against different family or household members. (L H.B. 1677, et al.)

17 Page 17 of 38 Assault while on school property, penalty A person commits the crime of assault while on school property if the person: (1) Knowingly causes physical injury to another person; or (2) With criminal negligence, causes physical injury to another person by means of a deadly weapon; or (3) Recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person; and the act described under subdivision (1), (2) or (3) of this subsection occurred on school or school district property, or in a vehicle that at the time of the act was in the service of a school or school district, or arose as a result of a school or school district-sponsored activity. 2. Assault while on school property is a class D felony. (L H.B & ) Consent as a defense When conduct is charged to constitute an offense because it causes or threatens physical injury, consent to that conduct or to the infliction of the injury is a defense only if: (1) The physical injury consented to or threatened by the conduct is not serious physical injury; or (2) The conduct and the harm are reasonably foreseeable hazards of (a) The victim's occupation or profession; or (b) Joint participation in a lawful athletic contest or competitive sport; or (3) The consent establishes a justification for the conduct under chapter 563 of this code. 2. The defendant shall have the burden of injecting the issue of consent. (L S.B. 60) Effective (1996) Working as a security guard does not imply consent to intentional assaults. State v. George, 937 S.W.2d 251 (Mo.App.E.D.). Assault of a law enforcement officer, corrections officer, emergency personnel, highway worker, or probation and parole officer in the first degree, definition, penalty A person commits the crime of assault of a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, or probation and parole officer in the first degree if such person attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, or probation and parole officer. 2. As used in this section, "emergency personnel" means any paid or volunteer firefighter, emergency room or