Link to Supreme Court Opinion
The Missouri Supreme Court held that a capital defendant bears the burden of proving mental retardation by a preponderance of the evidence. The dissent argues the burden is on the State since the statute is ambiguous.
I. Facts & Holding
Ernest Johnson was convicted of three counts of first degree murder arising out of the robbery of a Columbia convenience store in February 1994 and was sentenced to death.[2]
There have been three previous appeals to the Missouri Supreme Court. The first appeal was a § 29.15 post conviction relief motion, where the Court affirmed the conviction but reversed the death sentenced and remanded for a new penalty phrase on the grounds of ineffective assistance of counsel.[3] On the second appeal, the Court affirmed the death penalty imposed by the trial court on remand, and rejected Johnson’s argument that due to his borderline mental retardation the death penalty was excessive as it has previously been sustained when the defendant is mentally retarded or has a low I.Q..[4] On the third appeal, the Court reversed the trial court’s denial of a new post conviction relief motion and remanded for another new penalty phase.[5] The Court found that since evidence of mental retardation was presented, the jury was to be instructed that death was “not [a] suitable punishment for a mentally retarded” defendant.[6] On remand, Johnson was sentenced to death for the third time after he was found not to be mentally retarded.[7]
For the fourth time, Johnson appeals the death sentence on the grounds the State has the burden of proving he was mentally retarded, and he argues the burden must be proven beyond a reasonable doubt.[8]
b. Holding
In a 4-3 decision, the Court held that a capital defendant must prove mental retardation under RSMo § 565.030.4(1) and the appropriate standard of proof is preponderance of the evidence, not beyond a reasonable doubt, because mental retardation is not an aggravating factor. The majority explained that § 565.030.4(1) implies the burden is with the defendant not the State, and a finding of mental retardation eliminates the death penalty and it is not an aggravating factor. The Court upheld the death sentence because a jury could find by a preponderance of the evidence that Johnson was not mentally retarded and the mitigating factors did not outweigh the aggravating evidence. Furthermore, the Court found the death penalty was not excessive.[9]
The dissent would remand for a new penalty phase with the State having the burden to prove the defendant is mentally retarded and because the United States Supreme Court precedents requires a procedural standard. The dissent focused on § 565.030 and the bright line test which addresses the burden of proof, but does not allocate which party carries the burden. Since the burden of proof is not defined, the dissent argues the statute is construed against the State.
II. Legal Background
A. United States Supreme Court Cases
In Atkins v. Virginia, the United States Supreme Court held mentally retarded defendants cannot be sentenced to death.[10] The Supreme Court found capital punishment in this situation to be excessive because the goals of capital punishment, deterrence and retribution, are not advanced.[11] However, the Supreme Court did not establish a standard to determine if a defendant is mentally retarded and left that issue to for each state to decide.[12] Atkins applies retroactively to defendants who are mentally retarded.[13]
In Ring v. Arizona, the United States Supreme Court held aggravating factors used to impose the death penalty must be found by a jury and the appropriate standard is “beyond a reasonable doubt.”[14] The Court explained that in this situation, aggravating factors function as the “equivalent of an element of a greater offense,” and, as elements of the crime, are subject to a higher burden of proof.[15]
B. RSMo § 565.030
The procedures for first degree murder trials are established by § 565.030.4[16] and are effective for crimes committed after August 28, 2001.[17] Capital punishment trials are bifurcated, with the guilt and punishment determined in two stages. Upon a finding of guilty, a jury may impose the death penalty if one or more of the aggravating factors in § 565.032.2 are proven beyond a reasonable doubt.[18]
The statute sets forth specific requirements when issues of mental retardation are present. [19] Life without probation or parole is the only punishment for first degree murder when “the trier finds by a preponderance of the evidence that the defendant is mentally retarded,”[20] or the parties agree in writing to have the judge determine the issue of the defendant’s mental retardation prior to trial.[21]
C. Missouri Case Law
The Missouri Supreme Court created a bright line test for mental retardation in capital punishment cases, that the defendant has to “prove mental retardation by a preponderance of the evidence” to not be sentenced to death.[22] This test applies to all defendants standing trial even when the crime occurred before August 2001 and § 565.030.4(1) is not applicable.[23]
III. Comment
As the dissent points out, the burden of proof is a matter of life of death to the defendant.[24] If the jury finds the defendant is mentally retarded, the death penalty may not be sought and the only possible punishment for first degree murder is life in prison without the possibility of release.
Missouri statute and case law provides the standard of proof for mental retardation is preponderance of the evidence and the death penalty cannot be imposed if that burden is achieved. Substantive law and logic provides that a finding of mental retardation will eliminate the death penalty as a possible punishment. The law does not require a finding that the defendant is not mentally retarded for the death penalty to be imposed. Thus, placing the burden of proving the defendant is mentally retarded and making the death penalty unconstitutional is properly with the defendant.
While the statute and case law is not explicitly clear on which party bears the burden of proof, the allocation of proof is justified by reason and logic. The legislature may amend § 565.030.4(1) to provide the defendant has the burden of proof.
- Author: Kate E. Nolan
[1] No. SC87825 (Mo. Jan. 15, 2008) (en banc), available at http://www.courts.mo.gov/file.jsp?id=26511. The West reporter citation is State v. Johnson IV, 244 S.W.3d 144 (Mo. 2008) (en banc).
[2] State v. Johnson (Johnson I), 968 S.W.2d 686, 689-90 (Mo. 1998) (en banc).
[3] Johnson I, 968 S.W.2d at 689, 699.
[4] Johnson v. State (Johnson II), 22 S.W.3d 183, 185, 192-193 (Mo. 2000) (en banc).
[5] Johnson v. State (Johnson III), 102 S.W.3d 535, 541 (Mo. 2003) (en banc).
[6] Id.
[7] Johnson IV, 244 S.W.3d at 149.
[8] Id. at 150.
[9] The Court also considered issues concerning challenges of the venire and admission of photographs. Id. at 158-163.
[10] Atkins v. Va., 536 U.S. 304, 321 (2002).
[11] Id.
[12] Id. at 317 (citing Ford v. Wainwright, 477 U.S. 399 (1986))
[13] Johnson III, 102 S.W.3d at 539 n.12 (citing Penry v. Lynaugh, 492 U.S. 302, 329-330 (1989) (one exception to the general rule of non-retroactivity involves certain classes of individuals who cannot be subjected to capital punishment under the Eighth Amendment)).
[14] Ring v. Ariz., 536 U.S. 584, 609 (2002).
[15] Id.
[16] Mo. Rev. Stat. § 565.030 (2007).
[17] Mo. Rev. Stat. § 565.030.7 (2007).
[18] Mo. Rev. Stat. § 565.030.2(2) (2007).
[19] Mental retardation is defined as 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. Mo. Rev. Stat. § 565.030.7 (2007).
[20] Mo. Rev. Stat. § 565.030.4(1) (2007),
[21] Mo. Rev. Stat. § 565.030..5 (2007).
[22] Johnson III, 102 S.W.3d at 540.
[23] Id.
[24] Johnson IV, 244 S.W.3d at 165.
IV. Resource Sources
- Donald L. Catlett, Charles D. Moreland, and Janet M. Thompson, Collateral Estoppel in Criminal Cases: How and Where Does it Apply?, 62 J. Mo. B. 370 (2006).
- Ronald J. Tabak, Executing People with Mental Disabilities: How We can Mitigate an Aggravating Situation, 25 St. Louis U. Pub. L. Rev.. 283, (2006).
- Michael A. Wolff, Tinkering with the machinery of Death – Mental Capacity, ability , and Eligibility for the Death Penalty, 25 St. Louis U. Pub. L. Rev. 279 (2006).
