DocketNumber： SC 89895
Citation Numbers： 306 S.W.3d 529, 2010 Mo. LEXIS 82, 2010 WL 796990
Judges： Zel M. Fischer
Filed Date： 3/9/2010
Status： Precedential
Modified Date： 11/14/2024
I. Introduction and Procedural History
In January 2001, a jury found Terrance Anderson guilty of two counts of first degree murder for killing Debbie and Stephen Rainwater. He was sentenced to life imprisonment without parole for the murder of Stephen and sentenced to death for the murder of Debbie. Those convictions and sentences were affirmed by this Court in State v. Anderson, 79 S.W.3d 420 (Mo. banc 2002). Anderson filed a motion for post-conviction relief pursuant to Rule 29.15, which was overruled by the circuit court. On appeal, this Court reversed the death sentence for Debbie’s murder and remanded for a retrial of the penalty phase. Anderson v. State, 196 S.W.3d 28 (Mo. banc 2006).
II. Standard of Review
On direct appeal, this Court reviews a sentence of death for prejudice, not mere error, and will reverse a trial court’s decision only when an alleged error is so prejudicial that the defendant was deprived of a fair trial. State v. Johnson, 284 S.W.3d 561, 568 (Mo. banc 2009). Prejudice exists when there is a reasonable probability that the trial court’s error affected the outcome at trial. Id. Evidence admitted at trial is viewed in the light most favorable to the verdict and is reviewed for abuse of discretion. Id.
III. Point One: Failure to Give Proper Verdict Directing Instruction
Anderson argues that the trial court erred in failing to give the proper verdict director, MAI-CR 3d 313.48A, because it did not include certain language instructing the jury that if it “decide[d] that facts or circumstances in mitigation of punishment outweigh the facts and circumstances in aggravation of punishment” the verdict must be life imprisonment.
Standard of Review
Whenever there is an MAI-CR instruction applicable under the law, the MAI-CR instruction is to be given to the exclusion of any other instruction. State v. Ervin, 979 S.W.2d 149, 158 (Mo. banc 1998). The giving of an instruction in violation of the Notes on Use under MAI-CR constitutes error, its prejudicial effect to be judicially determined. Rule 28.02(f); State v. Livingston, 801 S.W.2d 344, 348 (Mo. banc 1991); State v. White, 622 S.W.2d 939, 943 (Mo. banc 1981), overruled on other grounds by State v. O’Brien, 857 S.W.2d 212 (Mo. banc 1993). Further, if a proper timely objection is made, the giving of an instruction in violation of MAI-CR is presumptively prejudicial unless the contrary is clearly shown. Livingston, 801 S.W.2d at 348; White, 622 S.W.2d at 943. However, reversal is only warranted when the instructional error is so prejudicial that it deprived the defendant of a fair trial. State v. Zink, 181 S.W.3d 66, 74 (Mo. banc 2005); State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999).
Analysis
In capital cases, juries are given an instruction referred to as the “verdict mechanics” instruction; for crimes occurring prior to August 28, 2001, but after August 28, 1993, the pattern instruction is MAI-CR 3d 313.48A. MAI-CR 3d 313.48A, Notes on Use 1. This instruction summarizes the process the jury should use in considering the evidence, explains which verdict forms the jury should complete, and tells the foreperson how to fill in the appropriate forms. See State v. Storey, 40 S.W.3d 898, 913 (Mo. banc 2001).
Where there is a retrial of the punishment phase alone, the capital penalty phase instructions are modified in certain respects. MAI-CR 3d 313.00, Notes on Use 6. These modifications are laid out in the Appendix to MAI-CR 3d 313.00. The modified version of MAI-CR 3d 313.48A contained in the Appendix to MAI-CR 3d 313.00 was used in Anderson’s case. This modified version of MAI-CR 3d 313.48A was patterned after the September 1, 2003, version of MAI-CR 3d 313.48A.
In 2004, the regular version of MAI-CR 3d 313.48A was revised to include language regarding the jury’s consideration of evidence in mitigation. Com
If you unanimously decide that the facts or circumstances in mitigation of punishment outweigh the facts and circumstances in aggravation of punishment, then the defendant must be punished for the murder of [name of the victim in this count ] by imprisonment for life by the Department of Corrections without eligibility for probation or parole, and your foreperson will sign the verdict form so fixing the punishment.
MAI-CR 3d 313.48A (January 1, 2004). It is clear that this MAI-CR was revised, but the version of MAI-CR 3d 313.48A that was included in the appendix to MAI-CR 3d 313.00 did not include the revisions. Thus, the “verdict mechanics” instruction submitted in Anderson’s case, Instruction 10, erroneously omitted the paragraph added in 2004.
The State argues “[j]ury instructions are not to be viewed in isolation, but are to be taken as a whole to determine whether prejudice occurred.” Storey, 40 S.W.3d at 912. “This Court must review all submitted instructions together to determine if [the error] resulted in prejudicial error.” White, 622 S.W.2d at 943. The “absence of language in a particular instruction does not prejudice the defendant if the subject matter is covered and provided elsewhere in the instruction.” State v. Sandles, 740 S.W.2d 169, 173 (Mo. banc 1987). And, in fact, this Court has specifically and repeatedly held that the prior version of MAI-CR 3d 313.48A properly instructs the jury, even though it does not contain the mitigation-evidence paragraph that was added in 2004. State v. Cole, 71 S.W.3d 163, 176 (Mo. banc 2002); State v. Tisius, 92 S.W.3d 751, 770 (Mo. banc 2002); Storey, 40 S.W.3d at 913-14.
For example, in Storey, the defendant argued that language mentioning mitigating circumstances should have been included in the verdict mechanics instruction. 40 S.W.3d at 913. This Court held that there was no prejudice from this omission because the jury was properly instructed about the consideration of the evidence in the preceding instructions. Id. This Court concluded that “these instructions in no way precluded the jury from giving effect to the mitigating evidence.” Id. at 914.
In this case, as in Storey, the jury was properly instructed about the consideration of mitigating circumstances in Instruction 8. Instruction 8, based on MAI-CR 3d 313.44A, instructed the jury how to perform the “weighing step” of the penalty phase deliberations. The jurors were instructed that they should consider the three listed statutory mitigators and “any
Conclusion
Although the trial court erred in failing to give the current version of MAI-CR 3d 313, the trial court did not commit reversible error when it denied Anderson’s objection to Instruction 10 and gave a verdict mechanics instruction patterned after the earlier approved instruction. The State has met its burden to demonstrate no prejudice occurred because the instruction did not misstate the law, and, when read in combination with the other instructions, the jury was properly informed about how to consider mitigating evidence.
IY. Point Two: Aggravating Circumstances and Double Jeopardy
Anderson claims that the trial court erred in overruling his motion to dismiss and to quash the information. Anderson contends he was not, nor could he have been, convicted of “aggravated murder in the first degree” in his first trial because the State did not include the aggravating circumstances in the information. Thus, he argues, the State was prohibited from seeking the death penalty on retrial, and the penalty phase of his trial could not be retried because that action would result in double jeopardy.
Anderson admits that section 565.020, RSMo 2000,
Nevertheless, Anderson argues that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), overrules this Court’s decisions holding that Missouri’s statutory scheme recognizes a single offense of murder with a maximum sentence of death and the required presence of aggravating facts or circumstances in no way increases this maximum penalty. Gill, 167 S.W.3d at 194 (citing Cole, 71
Missouri law is well-settled that there is only one crime of murder in the first degree, and the State is not required to plead aggravating circumstances in the information or indictment so long as the defendant has pretrial notice of the alleged aggravating factors. Id.; State v. Glass, 136 S.W.3d 496, 513 (Mo. banc 2004); State v. Edwards, 116 S.W.3d 511, 543 (Mo. banc 2003). Anderson was charged with first degree murder and received notice of the aggravating circumstances the State intended to prove at the penalty phase of trial when the State filed its “Notice of Aggravating Circumstances.” The jury in Anderson’s first trial found each of the aggravating circumstances beyond a reasonable doubt. The trial court did not err in overruling Anderson’s motion to dismiss or his motion to quash the information.
Finally, Anderson contends that the retrial subjected him to double jeopardy. This argument rests on the false premise that Missouri law recognizes two forms of first degree murder. An “acquittal” based on findings sufficient to establish a legal entitlement to life imprisonment at the trial-like sentencing phase is required to give double jeopardy protections. Sattazahn v. Pennsylvania, 537 U.S. 101, 107, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003).
[T]he relevant inquiry for double-jeopardy purposes was not whether the defendant received a life sentence the first time around, but rather whether a first life sentence was an ‘acquittal’ based on findings sufficient to establish legal entitlement to the life sentence — i.e., findings that the government failed to prove one or more aggravating circumstances beyond a reasonable doubt.
Id. at 108, 123 S.Ct. 732. Here, there was no acquittal. The jury found beyond a reasonable doubt each of the three statutory aggravators submitted to it. Anderson, 79 S.W.3d at 429. Therefore, double jeopardy protections did not attach.
V. Point Three: Admission of Autopsy Evidence
Anderson contends that the trial court erred in overruling his objections to evidence about Stephen Rainwater’s autopsy because the evidence was irrelevant to any issue at the retrial of the penalty phase for the murder of Debbie Rainwater; thus, Anderson’s rights to due process, fair trial, and reliable sentencing were violated. Anderson claims that the autopsy-related evidence was neither material nor legally relevant. This Court finds that the evidence was relevant and admissible; therefore, the trial court did not err in overruling Anderson’s objections.
Standard of Review
“The trial court has broad discretion during the penalty phase to admit any evidence it deems helpful to the jury in assessing punishment.” Gill v. State, 300 S.W.3d 225, 232 (Mo. banc 2009). The trial court’s decision in these matters will only be overturned where there is a showing of an abuse of that discretion. State v. Strong, 142 S.W.3d 702, 710 (Mo. banc 2004). “On direct appeal, this Court reviews the trial court ‘for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived
Analysis
Evidence must be relevant to be admissible. In Missouri, the general rule is that relevance is two-tiered: logical and legal. State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002) (internal citations omitted). Evidence is logically relevant if it tends to make the existence of a material fact more or less probable. Id. But logically relevant evidence is only admissible if it is legally relevant. Id. Legal relevance weighs the probative value of the evidence against its costs — unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Id. (citing State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992)). Accordingly, logically relevant evidence is excluded if its prejudice outweighs its probative value.
Here, the evidence was both material and relevant. The jury in the penalty phase of a trial for capital murder must consider statutory aggravating circumstances, including evidence that the murder was committed “while the offender was engaged in the commission or attempted commission of another unlawful homicide.” Section 565.032.2(2). Dr. Costin, the pathologist who examined Stephen Rainwater’s body, described the injuries Stephen sustained, including the location and extent of the gunshot wound. This evidence was material to demonstrate the cause of Stephen’s death and to corroborate testimony that he was found lying motionless on the ground. And the precision of the wound and its location in Stephen’s head supported the State’s evidence that Debbie’s murder was part of a plan.
Anderson argues that, even if the evidence was material, its prejudicial effect outweighed its probative value and it was unnecessary because Stephen’s death was already proven by a certified copy of Anderson’s conviction for that crime. Anderson points to the “graphically violent” nature of the testimony. The testimony was a description by Dr. Costin of what he saw while performing an autopsy on Stephen. The jury heard evidence from several witnesses about events on the night of the murders, including the shooting of Stephen. Anderson himself testified about shooting Stephen and about his anger toward the Rainwaters that motivated the murders. There is nothing in the record, nor does Anderson point to any facts that suggest that Dr. Costin’s testimony prejudicially affected the outcome in favor of a finding for the death penalty.
Furthermore, the State must prove each aggravating circumstance beyond a reasonable doubt. Section 565.032.1; State v. Gill, 167 S.W.3d at 193. “The state, because it must shoulder the burden of proving the defendant’s guilt beyond a reasonable doubt, should not be unduly limited in its quantum of proof.” State v. Smith, 32 S.W.3d 532, 546 (Mo. banc 2000) (holding that linoleum bearing a message written by the victim in blood was admissible during the guilt phase of trial even though the defendant admitted to being the attacker). The evidence about Stephen’s death was material and relevant, and the trial court did not abuse its discretion in admitting the testimony.
VI. Points Four, Five, and Seven: Objections to Jury Instructions
Anderson argues that the trial court erred in overruling his objections to MAI instructions because each instruction failed to correctly inform the jury of the proper burden of proof.
Whenever there is an MAI-CR instruction applicable under the law, the MAI-CR instruction is to be given to the exclusion of any other instruction. Zink, 181 S.W.3d at 74; Ervin, 979 S.W.2d at 158. Error results when a circuit court fails to give a mandatory instruction. State v. Gilmore, 797 S.W.2d 802, 805 (Mo.App.1990). However, reversal is only warranted when the instructional error is so prejudicial that it deprived the defendant of a fair trial. Zink, 181 S.W.3d at 74; Middleton, 995 S.W.2d at 452.
a. Point Four: Shifting Burden of Proof
Anderson contends that the trial court erred in overruling his objections to section 565.030.4(3), RSMo Supp.2008, and jury Instruction 8 based on MAI 313.44A and refusing to submit Anderson’s proposed Instructions C or D because section 565.030.4(3) and Instruction 8 imposed on Anderson the burden of proving that the evidence in mitigation outweighed the evidence in aggravation. Anderson relies on Apprendi and its progeny. The trial court did not err in submitting Instruction 8.
Anderson challenges this Court’s rulings in State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009), and State v. McLaughlin, 265 S.W.3d 257 (Mo. banc 2008), and argues that these recent cases holding that section 565.030.4(3) does not impermissibly shift the burden of proof are inconsistent with United States Supreme Court precedent. These cases do not conflict with United States Supreme Court precedent, and Missouri case law has addressed and resolved this argument. Johnson, 284 S.W.3d at 588; State v. Taylor, 134 S.W.3d 21, 30 (Mo. banc 2004).
Ring requires that any facts necessary to increase the range of punishment must be proven beyond a reasonable doubt. It does not follow from this reasoning, however, that all facts considered in determining an appropriate sentence must be found beyond a reasonable doubt. See Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006).
In Marsh, the United States Supreme Court evaluated the constitutionality of a death penalty sentencing scheme “which require[d] the imposition of the death penalty when the sentencing jury determine^] that aggravating evidence and mitigating evidence [were] in equipoise.” Id. at 165-66, 126 S.Ct. 2516. The Court held that such a scheme was constitutionally permissible, stating that “[s]o long as a state’s method of allocating the burdens of proof does not lessen the state’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” Id. at 170-71, 126 S.Ct. 2516 (citing Walton v. Arizona, 497 U.S. 639, 650, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds by Ring, 536 U.S. 584, 122 S.Ct. 2428). Therefore, as long as the State is required to prove at least one statutory aggravator beyond a reasonable doubt, rendering the defendant death eligible, the legislature has discretion in allocating the burden of proof guiding the remainder of the jury’s determination.
Missouri’s statutory scheme, and the instructions in this case, comply with that mandate. Under section 565.030, RSMo Supp.2008, the State must prove the existence of at least one statutory aggravator before the jury may consider imposing the death penalty. After that, the legislature has imposed a balancing procedure that is
b. Point Five: Reasonable Doubt Instruction
Anderson argues that the trial court erred in overruling his objections to oral instruction MAI-CR 3d 300.03A and written instructions 3, 7, 8, and 10 and in rejecting his proposed instructions. He contends section 565.030.4 and the instructions are unconstitutional because they do not require the state to prove, and the jury to find, beyond a reasonable doubt “all facts required” to enhance punishment to death. Anderson again relies on Apprendi and its progeny. The trial court did not err in submitting the instructions.
In Johnson, this Court rejected the same argument, explaining that neither the constitution nor the Missouri death penalty statute require that the State prove the mitigating factors or non-statutory aggravators beyond a reasonable doubt. 284 S.W.3d at 585 (citing Gill, 167 S.W.3d at 193). “This Court has stated that under Ring and Apprendi only evidence functionally equivalent to an element, including statutory aggravating circumstances, must be found beyond a reasonable doubt.” Johnson, 284 S.W.3d at 585 (citing State v. Clark, 197 S.W.3d 598, 601 (Mo. banc 2006)). The rule that only facts that increase the penalty for a crime beyond the prescribed statutory maximum are required to be found by a jury beyond a reasonable doubt is well-settled in Missouri. See Zink, 278 S.W.3d at 193; Glass, 136 S.W.3d at 521.
As explained in Johnson, neither the constitution nor the Missouri death penalty statute require that the State prove the weighing step beyond a reasonable doubt. As discussed above, it is constitutionally permissible to place the burden of proving mitigating circumstances on the defendant. Johnson, 284 S.W.3d at 585; see also Marsh, 548 U.S. at 165-66, 126 S.Ct. 2516. Section 565.032 specifically states that the aggravating circumstances must be found beyond a reasonable doubt, but no quantum of proof is assigned to the weighing step. See, e.g., Gill, 167 S.W.3d at 193.
Instructions 3, 7, and 10 properly instructed the jury that statutory aggravating factors must be proven beyond a reasonable doubt. Instruction 8 regarding mitigating factors did not instruct the jury that mitigating factors must be proven beyond a reasonable doubt. These four instructions accurately reflect Missouri law, and the trial court did not err in overruling Anderson’s objections to them.
c. Point Seven: Non-statutory Aggravators’ Burden of Proof
Anderson argues that the trial court erred in overruling his objections to Instruction 7, based on MAI-CR 3d 313.41A, and Instruction 8, based on MAI-CR 3d 313.44A, because they failed to provide any direction to the jury regarding the burden of proof for non-statutory aggravating evidence. Anderson further argues that the reasoning in Clark, 197 S.W.3d at 602, and State v. Fassero, 256 S.W.3d 109, 119 (Mo. banc 2008), requiring that evidence of prior crimes for which the
The reasoning in Clark and Fassero does not apply in this case. The rule set out in Clark is that a state may present evidence of criminal conduct for which the defendant was acquitted, but the penalty phase jury may only consider such evidence if it is proven by a preponderance of the evidence. 197 S.W.3d at 601. Anderson claims that Clark and Fassero establish that a jury at the penalty phase of any felony trial must be instructed on the burden of proof of non-statutory aggravating evidence if it is to be used in determining sentence and that, because the evidence at issue here is “aggravating evidence,” it must be proven beyond a reasonable doubt. This is incorrect. Clark and Fassero dealt specifically with evidence of prior adjudicated crimes, not all non-statutory aggravating evidence, and this Court has repeatedly rejected the argument that non-statutory aggravators must be proven beyond a reasonable doubt. See Zink, 278 S.W.3d at 193; Johnson, 284 S.W.3d at 585; Glass, 136 S.W.3d at 517.
Anderson contends that if the beyond a reasonable doubt standard does not apply, then non-statutory aggravating evidence must be proven by a preponderance of the evidence. As noted, Clark is inapplicable here. “The trial court has discretion during the punishment phase of trial to admit whatever evidence it deems helpful to the jury in assessing punishment.” Strong, 142 S.W.3d at 720 (citing Glass, 136 S.W.3d at 517, and State v. Six, 805 S.W.2d 159, 166 (Mo. banc 1991)). The jury may consider not only the nature and circumstances of the crime but also the character of the defendant. Six, 805 S.W.2d at 166.
The evidence that Anderson argues was required to be proven by at least a preponderance of the evidence consisted of the orders of protection that Debbie and Abbey Rainwater obtained against Anderson and Abbey’s allegations that he abused her. The trial court did not err in excluding the burden of proof about the evidence of Anderson’s prior unadjudicated bad acts from the jury instructions. This Court has repeatedly upheld the admission of such evidence and has never held that this evidence must be proven by a preponderance of the evidence. See Strong, 142 S.W.3d at 720 (the trial court did not err in admitting testimony about the defendant’s prior assaults on his ex-wife and a former coworker); Glass, 136 S.W.3d at 517 (evidence that defendant, who was charged with murdering a teenage girl, had walked into residences of teenage girls uninvited on two separate occasions was admissible during penalty phase of trial); State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999) (testimony from a former girlfriend of the defendant that he hit her and threatened her with a gun was admissible during the guilt phase of trial). Furthermore, section 557.036.3, RSMo Supp.2008, governing the admission of evidence at the punishment phase of trial, is silent on the burden of proof for this type of character evidence. There is no basis for holding that the state was required to prove non-statutory aggravating evidence by a preponderance of the evidence.
Here, Instruction 6 told the jury that they had to find at least one statutory aggravator beyond a reasonable doubt. Instruction 6 allowed the jury to proceed if it had found the statutory aggravator beyond a reasonable doubt. Instruction 8 told the jury to consider all mitigating circumstances and to impose a life sen
VII. Point Six: Jury Selection Procedures
Anderson argues that the trial court erred in overruling his motion to quash the jury panel because jury selection procedures in Cape Girardeau County systematically exclude black jurors. “It is well established that a criminal defendant has a constitutional right to the unbiased selection of a jury drawn from a fair cross-section of the community.” State v. Brooks, 960 S.W.2d 479, 487 (Mo. banc 1997).
Anderson objected to the jury selection procedures at the end of voir dire. Anderson sought to quash the entire panel due to the fact that no black jurors were on the panel. The trial court denied this request. “A defendant has the burden of showing a prima facie violation of the cross-section requirement.” State v. Sumowski, 794 S.W.2d 643, 647 (Mo. banc 1990) (citing State v. Johnson, 606 S.W.2d 655, 657 (Mo. banc 1980)). “In order to establish a prima facie case, defendant must show that the underrepresentation of other groups was due to a systematic exclusion in the selection process.” Id. (citing Duren v. Missouri, 439 U.S. 357, 367, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). “The defendant must plead and prove a fatal departure from the statutory procedure for jury selection prior to the trial.” Id. at 647-48 (citing State v. Bynum, 680 S.W.2d 156, 160 (Mo. banc 1984)).
Anderson did not plead and prove a violation of the statutory procedure for jury selection prior to trial; he objected to the jury being all white and argued that the jury was not representative. He offered no evidence of any statutory violation. Nor did he offer statistical evidence that the jury selection procedure systematically excluded black jurors. Anderson relied solely on the jurors in the panel selected for this case. “A single panel that fails to mirror the make-up of the community is insufficient to establish a prima facie case of systematic exclusion.” State v. Ringo, 30 S.W.3d 811, 820 (Mo. banc 2000) (citing State v. Garrett, 627 S.W.2d 635, 639 (Mo. banc 1982)).
Additionally, Anderson argues that section 494.430, RSMo Supp.2008, which allows a judge, ex parte, to excuse jurors, resulted in a systematic exclusion of black jurors. Anderson contends that, because the statute does not require a judge to keep a record of the number and race of venirepersons excluded under section 494.430, there is no way to determine the extent to which this section contributes to the systematic exclusion of black individuals. There is nothing about section 494.430 that suggests that it would tend to lead to a systematic exclusion of certain jurors, absent an allegation of racial discrimination on the part of the judge, which Anderson does not make.
VIII. Point Eight: Opening and Closing Arguments
Anderson argues that the trial court erred in overruling his objections and request for a mistrial to the State’s closing argument.
First, Anderson contends that the trial court erred in allowing the prosecutor to state in his closing arguments that mercy is “something that is given to the
Second, Anderson claims that the trial court erred in allowing the prosecutor to state in his closing argument that sending Anderson back to prison was “doing nothing.” The prosecutor quoted Edmund Burke, stating: “The only thing necessary for evil to triumph is for good men to do nothing. I suggest to you that if you send this man back to prison, you will have done nothing.” Anderson’s attorney timely objected to this statement. In Forrest, 183 S.W.3d at 228, this Court upheld the use of the same quote, noting that the quote “interrelate[d] with the concept of whether the jury should be merciful to Appellant.” The use of this quote was permissible, and the trial court did not err in overruling Anderson’s objection.
Third, Anderson requests plain error review for the prosecutor’s statement in closing arguments that “for the ultimate crime, not once, but twice, two ultimate crimes, that the ultimate punishment is necessary and proper.” Plain error relief is rarely appropriate for claims involving closing arguments because the decision to object is often a matter of trial strategy. Johnson, 284 S.W.3d at 573. Closing arguments must be examined in the context of the entire record. Id. Under plain error review, a conviction will be reversed for improper closing argument only when it is established that the argument had a decisive effect on the outcome of the trial and amounts to manifest injustice. Middleton, 995 S.W.2d at 456. The burden to prove decisive effect is on the appellant. State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993).
Anderson argues that the prosecutor’s statement about two ultimate crimes was a thinly veiled attempt to tell the jury to sentence Anderson to death for Stephen Rainwater’s murder. Anderson does not present any evidence indicating that the prosecutor’s statement had a decisive effect on the outcome of this case. Further, whether the murder of Debbie Rainwater occurred in the commission of another unlawful homicide was an aggravating factor submitted to the jury. It was not plain error for the trial court to allow the prosecutor to speak of two ultimate crimes in his closing arguments.
IX. Proportionality Review
Pursuant to section 565.035.3, this Court is required to engage in a proportionality review and determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
*544 (2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in subsection 2 of section 565.032 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.
a.Passion, Prejudice, and Arbitrary Factors
Anderson does not allege, and a thorough review of the record does not indicate, that the death sentence was influenced by passion, prejudice, or other arbitrary factors.
b.Aggravating Factors
The jury found two statutory aggravating circumstances. The jury found that the murder of Debbie Rainwater was committed while the defendant was engaged in the commission or attempted commission of another unlawful homicide. Section 5651)32.2(2). And the jury found that the murder of Debbie Rainwater was outrageously or wantonly vile, horrible or inhumane in that it involved depravity of mind because the defendant killed Debbie Rainwater as part of a plan to kill more than one person, exhibiting a callous disregard for the sanctity of human life. Section 565.032.2(7). Anderson shot Debbie Rainwater shortly before shooting Stephen Rainwater, and he shot Debbie as she begged for her life and was holding his infant child. The evidence presented in this case supports, beyond a reasonable doubt, the jury’s finding of the two statutory aggravating factors.
c.Similar Cases
The death sentence was neither excessive nor disproportionate to the death penalty imposed in similar cases, considering the crime, the strength of the evidence and the defendant. This Court has often upheld death sentences where the defendant murdered more than one victim. See, e.g., State v. Christeson, 50 S.W.3d 251, 273 (Mo. banc 2001); Smith, 32 S.W.3d at 559; Ringo, 30 S.W.3d at 826; State v. Johnson, 968 S.W.2d 123, 135 (Mo. banc 1998); State v. Ramsey, 864 S.W.2d 320, 327 (Mo. banc 1993). This Court has also upheld death sentences when the murder involved depravity of mind showing a callous disregard for the sanctity of all human life. See Christeson, 50 S.W.3d at 273; State v. Wolfe, 13 S.W.3d 248, 265 (Mo. banc 2000); Middleton, 995 S.W.2d at 467; Johnson, 968 S.W.2d at 135; Rousan, 961 S.W.2d at 854. Additionally, the death sentence has been upheld when a defendant murders someone who is helpless and defenseless, as Debbie Rainwater was when Anderson shot her. See Rousan, 961 S.W.2d at 854; State v. Barton, 998 S.W.2d 19, 29 (Mo. banc 1999); State v. Clayton, 995 S.W.2d 468, 484 (Mo. banc 1999).
Conclusion
For the foregoing reasons, the judgment is affirmed.
. Anderson's life sentence without probation and parole for Stephen’s murder was affirmed and not involved in the remand or this appeal. Anderson v. State, 196 S.W.3d 28.
. A change in a pattern instruction does not mandate the conclusion that the prior version incorrectly instructed juries on the law. State v. Richardson, 923 S.W.2d 301, 318 (Mo. banc 1996). Here, the 2004 revision to the verdict mechanics instruction was not based on a change in the law, but was simply part of the ongoing effort to clarify the current instructions. The Notes on Use do not specify any change in the law motivating the alteration. See MAI-CR 3d 313.48A (2004), Notes on Use. Therefore, it appears that the revision was prompted by this Court’s continuing desire to find the best means of instructing the jury.
The ordinary MAI-CR 3d 313.48A was subsequently revised in 2006 to accommodate the holding in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), by adding further optional language regarding the defendant’s age. See MAI-CR 3d 313.40A (March 1, 2006), Notes on Use 2; compare MAI-CR 3d 313.48A (January 1, 2004) with MAI-CR 3d 313.48A (March 1, 2006). The modified MAI used in Anderson's case did not include this revision, but, as there was no dispute that Anderson was over the age of 18 at the time of the crimes, there was no need to use any of the language from the 2006 revision.
. All references are to RSMo 2000 unless otherwise indicated.
. Anderson cites to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), State v. Whitfield, 837 S.W.2d 503 (Mo. banc 1992), and State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003).