"Missouri executes inmate for 1993 farm slaying," by Jim Salter. (Associated Press April 23, 2014 6:00 am)

BONNE TERRE • Missouri executed an inmate early Wednesday only a few miles from the farm where prosecutors say he orchestrated the 1993 killing of a couple whose cows he wanted to steal. William Rousan's last words were, "My trials and transgressions have been many. But thanks be to my Lord and savior, Jesus Christ, I have a new home in his heavenly kingdom." Before dying, Rousan, 57, mouthed words to his brother-in-law and a minister he had invited. As the drug was administered, Rousan breathed deeply twice and then was still. He was declared dead at 12:10 a.m., nine minutes after the procedure started.

Michael Lewis, the son of the slain couple, Charlie and Grace Lewis, spoke afterward. "I draw no real satisfaction from Mr. Rousan's incarceration or execution, for neither can replace or restore the moments lost with my parents or give my sons back the grandparents they never got to know," he said.

According to prosecutors, Rousan, his teenage son, Brent Rousan, and his brother, Robert Rousan, murdered Charles and Grace Lewis on Sept. 21, 1993, at their farm near Bonne Terre. Rousan lived in the same area of St. Francois County, about 70 miles southwest of St. Louis. Authorities say the three men drove by the farm, and William Rousan pointed out the cattle to steal. They parked about two miles away and hiked through the woods to the farm. They watched as the couple returned home. Charles Lewis, 67, began cutting the lawn with a riding mower while his wife, 62, spoke to the couple's daughter on the phone.

Brent Rousan, then 16, ambushed Charles Lewis, shooting him six times. Grace Lewis told her daughter on the phone she heard gunfire and stepped outside to check on the commotion. Brent Rousan shot her several times. She managed to go back into the home, but William Rousan followed her, placed a garment bag over her head and carried her outside. He turned to his son and said, "Finish her off." Brent Rousan fired a single shot into the side of her head. The men placed the bodies in a tarp and put them near a shed. Later that night, they returned along with another Rousan brother, loaded the bodies in the Lewis' pickup truck, and took two cows, a VCR, jewelry, a saddle and other items.

For almost exactly a year, they got away with the crime. The couple seemingly had vanished without a trace. But in September 1994, investigators received two tips that helped them solve the case: Rousan's brother-in-law, Bruce Williams, called police and implicated Rousan in the couple's killings, and a sister of William and Robert Rousan sold the Lewises' stolen VCR to a pawn shop. The couple's bodies were found in a shallow grave covered with concrete and a pile of horse manure on the farm where William Rousan was living. He was caught after a four-day manhunt.

Brent Rousan pleaded guilty to two counts of first-degree murder and was sentenced to life in prison without the possibility of parole. Robert Rousan cooperated with prosecutors and pleaded guilty to second-degree murder. He served seven years in prison and was released in 2001.

Gov. Jay Nixon declined William Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the "cold-blooded plot" that led to the couple's slayings. Earlier Tuesday, the U.S. Supreme Court turned down Rousan's request to delay his execution.

Efforts to spare Rousan's life hinged an argument that has held little sway over the courts — concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process. Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma Supreme Court stayed the executions of two death row inmates who challenged the secrecy surrounding the process of procuring execution drugs.

Missouri has executed one death row inmate each month since November. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014. Florida has also executed four inmates this year.

ReutersNews

Rousan was sentenced to death for the murder of 62-year-old Grace Lewis and life in prison without parole for the murder of her 67-year-old husband Charles. Authorities said he was the mastermind in a siege that included his son and his brother, Robert, a spokeswoman for Missouri's top lawyer said. "(Rousan) showed his true character by ordering his 16-year-old son to kill Mrs. Lewis, all so they could steal two cows, soda, a VCR, and some jewelry," Attorney General Chris Koster said in a statement.

Rousan's final meal was a bacon cheeseburger, onion rings, a slice of pecan pie and a soft drink, O'Connell said.

The U.S. Supreme Court on Tuesday refused to stay his execution. Rousan's attorneys had argued that Missouri's secrecy around its lethal injection drugs could result in undue suffering for the inmate as he was put to death. After the court denial, Missouri Governor Jay Nixon denied a clemency request, clearing the way for Rousan's execution.

Controversy has arisen over lethal injection drugs as many states have turned to lightly regulated compounding pharmacies for supplies after the makers of drugs traditionally used in lethal injections largely stopped supplying them for executions. Advocates for death row inmates say the convicts have a right to know the legitimacy of the supplier and details about the purity and potency of the drugs. And they say the compounded drugs, which are not approved by the U.S. Food and Drug Administration, could lead to undue suffering that amounts to cruel and unusual punishment in violation of the U.S. Constitution. O'Connell said Rousan showed no signs of distress, adding a witness said Rousan took two deep breaths and then stopped breathing.

The slain couple's son, Michael Lewis, told reporters after the execution that he drew "no real satisfaction from Mr. Rousan's incarceration or execution," because neither could bring his parents back. Rousan, in a final written statement, said: "My trials and transgressions have been many."

In their petition to the U.S. Supreme Court, Rousan's attorneys had said the state was planning to use "compounded pentobarbital prepared by an unknown person in an unknown manner, without any assurance by an accredited laboratory that the substance is what the state purports it to be." Last year, Missouri started classifying compounding pharmacies as part of its execution team and said the identities of the pharmacies were thus shielded from public disclosure. But attorneys for Rousan argued he had a right to know what he would be injected with. Similar arguments have been made on behalf of inmates in other states. On Monday, the Oklahoma Supreme Court halted the executions of Clayton Lockett, set for Tuesday, and Charles Warner, set for April 29. Louisiana and Ohio have seen executions delayed this year because of concerns about suffering that might be caused by non-traditional drug supplies. The family of one inmate executed in Ohio in January has filed suit against the state because, according to some witnesses, he took an unusually long time to die and appeared to be in pain.

(Reporting by Carey Gillam and Eric M. Johnson; Additional reporting by Heide Brandes in Oklahoma City; Editing by Cynthia Osterman, Mohammad Zargham and Clarence Fernandez)

Murderpedia

State of Missouri v. William Rousan
961 S.W.2d 831 (Mo.banc 1998)

Case Facts:

On September 21, 1993, Rousan, Rousan’s son Brent Rousan, and Rousan’s brother, Robert Rousan, met and discussed stealing cattle from Charles and Grace Lewis. Charles Lewis, sixty-seven, and his wife Grace, sixty-two, lived near the farm where Rousan resided. Having devised a plan, the Rousans’s set out for the Lewis farm. On the way, they discussed killing Mr. and Mrs. Lewis. They agreed that "if it had to be done it had to be done."

As the three drove past the Lewis farm, William Rousan pointed out the cattle they would be stealing. He parked the truck approximately two miles from the farm. He got out of the truck and removed a .22 caliber rifle that belonged to his girlfriend, Mary Lambing. He loaded the rifle for use in the crime "in case anyone was home." Rousan and his son then argued over who would carry the gun, Brent, the son, said that he was "man enough to do whatever needed to be done and that he would use the weapon." Rousan at first stated that Brent was not man enough, but eventually gave him the gun. He warned Brent that if they were caught, they would "fry." The three men then hiked through the woods to the Lewis farm where they waited under cover behind a fallen tree.

Between 3-4 p.m. that afternoon, Mr. and Mrs. Lewis returned home. Mr. Lewis began to mow the lawn. Mrs. Lewis spoke on the phone to the couple’s oldest daughter, who called at approximately 4:00 p.m. Brent grew tired of waiting and exclaimed that he wanted to "do it." Rousan told Brent to wait until he and Robert had secured the house. Rousan headed for the front door and Robert made his way to the back door. Before they arrived at the home, Mr. Lewis saw Brent and called out. Brent fired at least six shots from the rifle, all of which struck Mr. Lewis. He died as a result of those gunshot wounds.

Mrs. Lewis, speaking by telephone with her daughter, told her daughter that she heard gunfire and hung up the telephone. As Mrs. Lewis exited the house through the front door, Brent shot her several times. Although the bullets fractured both of Mrs. Lewis’s arms, the wounds were not fatal. Mrs. Lewis ran back into the house. Rousan followed her, removed a garment bag from a coat rack, and placed the bag over Mrs. Lewis’s head and the upper part of her body, picked her up and carried her outside. When Rousan placed Mrs. Lewis on the ground, she was alive. Rousan turned to Brent and instructed him to "finish her off." Brent fired one shot into the left side of Mrs. Lewis’s head. The shot killed her.

The three men wrapped the bodies in a tarpaulin and tied it with a rope. Rousan instructed that they should pick up the shell casings and clean up the blood stains. After doing so, the men deposited the bodies near a shed and left, planning to return later to get the bodies and the cattle. The three men, along with Jerry Rousan, another of Rousan’s brothers, returned to the Lewis farm that night. There they loaded the bodies into Mr. Lewis’s truck. They took two cows, a VCR, jewelry, soda, two gas cans, and a saddle. The four men then returned to Mary Lambing’s farm, where Rousan lived. On the return trip, Brent bragged about the murders.

At the Lambing farm, the men buried Mr. and Mrs. Lewis in a shallow grave by the barn. After digging the grave and placing the bodies in it, the men poured concrete over the bodies. They covered the grave with a pile of manure. They burned rags used to clean the blood from the Lewis house. The men disposed of the Lewises’ property in various ways. On the night of the murders, the men consumed the soda. The cows were later sold at auction. Robert gave the VCR to his sister and brother-in-law, Barbara and Bruce Williams, on the day following the murders. Mr. and Mrs. Williams sold the VCR to a local pawn broker approximately eight months later. Rousan buried the couple’s personal items. He gave the remainder of the jewelry to Mary Lambing on special occasions during the following year. The four men hid and later burned Mr. Lewis’s truck.

When the Lewises’ daughter could not reach her parents the following day, she became concerned. She called the police, who undertook an investigation into the Lewises’ disappearance. The police investigation continued for nearly a year without an arrest. On September 20, 1994 Rousan was arrested.

MissouriDeathRow.Com

Missouri.Net

The state has carried out the execution of 57-year-old William Rousan, who was convicted of the 1993 murders of a rural southeast Missouri couple in 1993. He died by lethal injection at the Eastern Reception, Diagnostic and Correctional Center at Bonne Terre, not far from where he committed the murders for which he was condemned. A lethal dose of pentobarbital was administered at approximately 12:01. When the curtain to the execution chamber was pulled back, Rousan was speaking continuously and looked at two people in the chamber where witnesses there for him sat. Some witnesses thought he told them, “I love you.” Less than a minute later he took two deep breaths and then stopped moving. He was officially pronounced dead at 12:10.

Rousan was sentenced to death for the murder of 62-year-old Grace Lewis and sentenced to life in prison for the murder of her husband, 67-year-old Charles Lewis. Rousan, his then-16-year-old son Brent and his brother Robert carried out the murders as part of a plot to steal cattle from the couple.

Rousan in his final statement said, “My trials and transgressions have been many. But thanks be to my Lord and Savior Jesus Christ, I have a new home in his heavenly kingdom. May forgiveness and peace be found for all in our Lord Jesus Christ. In our Lord Jesus Christ.” Rousan was visited during the day by three siblings and one brother’s spouse, a ministerial volunteer and a man identified as a friend of Rousan’s. Five members of the victim’s family witnessed the execution. (See a video statement from one of the Lewises’ sons following Rousan’s execution)

Rousan’s execution proceeded after the U.S. Supreme Court on Tuesday refused to stay his execution. His attorneys argued that secrecy regarding Missouri’s supply of pentobarbital could allow the use of a drug that would cause him undue suffering during his execution. Governor Jay Nixon (D) later denied a request for clemency for Rousan. Rousan’s is the sixth execution carried out in as many months in Missouri. Russell Bucklew is scheduled to be executed May 21 for the 1996 murder of Michael Sanders.

Case history

On September 21, 1993, William, Brent and Robert Rousan discussed killing the Lewises on the way to the couple’s farm and agreed that “if it had to be done it had to be done.” They parked about 2 miles from the farm, pointing out the cattle they would steal as they drove past. William and Brent Rousan argued about who would carry a .22 caliber rifle as they hiked through the woods toward the Lewis’ farm. The son said he was “man enough to do whatever needed to be done,” and his father eventually gave him the gun. He warned Brent that if they were caught they would “fry.” The three hid behind a fallen tree and waited for the couple.

As Charles Lewis was mowing the lawn he was fatally shot by Brent Rousan. Grace told her daughter on the phone she heard the gunshots and hung up to investigate. When she went outside she was shot by Brent Rousan but ran back inside the home. William Rousan followed her, put a garment bag over the upper part of her body and carried her back outside. He told Brent to “finish her off,” and the boy fired one shot into the side of her head killing her. The Rousans took two cows, a VCR, jewelry, soda, two gas cans and a saddle. They buried Mr. and Mrs. Lewis later that night in a shallow grave and covered it with cement and manure.

The three escaped capture for nearly a year before the VCR was sold to a pawn shop, leading police to the Rousans. Robert Rousan testified against his brother and pleaded guilty to second degree murder. He has since been released from prison. Brent Rousan is serving a life sentence.

"Victims’ son: ‘no real satisfaction’ from execution of William Rousan (VIDEO)"

The state of Missouri has carried out the execution of William Rousan, who was convicted of the murders of Grace and Charles Lewis in 1993. Following his execution early Wednesday morning, one of the Lewises’ children, Michael, read the following statement to the media: “I draw no real satisfaction from Mr. Rousan’s incarceration or execution, for neither can replace or restore the moments lost with my parents or give my sons back the grandparents they never got to know. Nor can it fully heal the broken hearts and lives of our family, or his family who my heart also goes out to. “I hope that Mr. Rousan made peace with Jesus, for that is what Charles and Grace Lewis would want, for sure.

As for the death penalty, I think the delay from sentencing to finalization is too long. I have never thought of it as revenge or justice served in terms of an “eye for eye” so to speak. Nor do I see it as a big deterrent to would be criminals. But I still believe it is a humane and permanent prevention of further criminal activities by the convicted inmate.” Lewis declined to take questions from the media. He was joined at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre by his wife, two sisters and a brother-in-law, none of whom spoke to the media.

"Attorney General issues statement on execution of William Rousan," by Mike Lear. (April 23, 2014)

Attorney General Chris Koster has released a statement regarding the execution Wednesday morning of William Rousan for the 1993 murder of Grace Lewis. Koster writes, “William Rousan displayed an appalling indifference to human life in the murders of Charles and Grace Lewis. He showed his true character by ordering his 16-year-old son to kill Mrs. Lewis, all so they could steal two cows, soda, a VCR, and some jewelry. Tonight he paid the price the jury recommended nearly 18 years ago. My thoughts and prayers are with the family and friends of Charles and Grace Lewis.”

Kansas City Star

"Missouri executes inmate for 1993 farm slaying," by Jim Salter. (Associated Press April 23)

BONNE TERRE, Mo. — Missouri executed an inmate early Wednesday only a few miles from the farm where prosecutors say he orchestrated the 1993 killing of a couple whose cows he wanted to steal. William Rousan's last words were, "My trials and transgressions have been many. But thanks be to my Lord and savior, Jesus Christ, I have a new home in his heavenly kingdom." Before dying, Rousan, 57, mouthed words to his brother-in-law and a minister he had invited. As the drug was administered, Rousan breathed deeply twice and then was still. He was declared dead at 12:10 a.m., nine minutes after the procedure started.

Michael Lewis, the son of the slain couple, Charlie and Grace Lewis, spoke afterward. "I draw no real satisfaction from Mr. Rousan's incarceration or execution, for neither can replace or restore the moments lost with my parents or give my sons back the grandparents they never got to know," he said.

According to prosecutors, Rousan, his teenage son, Brent Rousan, and his brother, Robert Rousan, murdered Charles and Grace Lewis on Sept. 21, 1993, at their farm near Bonne Terre. Rousan lived in the same area of St. Francois County, about 70 miles southwest of St. Louis. Authorities say the three men drove by the farm, and William Rousan pointed out the cattle to steal. They parked about two miles away and hiked through the woods to the farm. They watched as the couple returned home. Charles Lewis, 67, began cutting the lawn with a riding mower while his wife, 62, spoke to the couple's daughter on the phone.

Brent Rousan, then 16, ambushed Charles Lewis, shooting him six times. Grace Lewis told her daughter on the phone she heard gunfire and stepped outside to check on the commotion. Brent Rousan shot her several times. She managed to go back into the home, but William Rousan followed her, placed a garment bag over her head and carried her outside. He turned to his son and said, "Finish her off." Brent Rousan fired a single shot into the side of her head. The men placed the bodies in a tarp and put them near a shed. Later that night, they returned along with another Rousan brother, loaded the bodies in the Lewis' pickup truck, and took two cows, a VCR, jewelry, a saddle and other items.

For almost exactly a year, they got away with the crime. The couple seemingly had vanished without a trace. But in September 1994, investigators received two tips that helped them solve the case: Rousan's brother-in-law, Bruce Williams, called police and implicated Rousan in the couple's killings, and a sister of William and Robert Rousan sold the Lewises' stolen VCR to a pawn shop. The couple's bodies were found in a shallow grave covered with concrete and a pile of horse manure on the farm where William Rousan was living. He was caught after a four-day manhunt.

Brent Rousan pleaded guilty to two counts of first-degree murder and was sentenced to life in prison without the possibility of parole. Robert Rousan cooperated with prosecutors and pleaded guilty to second-degree murder. He served seven years in prison and was released in 2001. Gov. Jay Nixon declined William Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the "cold-blooded plot" that led to the couple's slayings.

Earlier Tuesday, the U.S. Supreme Court turned down Rousan's request to delay his execution. Efforts to spare Rousan's life hinged an argument that has held little sway over the courts — concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process. Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma Supreme Court stayed the executions of two death row inmates who challenged the secrecy surrounding the process of procuring execution drugs. Missouri has executed one death row inmate each month since November. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014. Florida has also executed four inmates this year.

Daily Mail Online

"Inmate executed for 1993 cold blooded murder of farming couple over a pair of COWS," by Jill Reilly. (April 2014)
William Rousan, 57, was declared dead at 12:10 a.m in Bonne Terre
Rousan murdered Charlie and Grace Lewis on Sept. 21, 1993
Rousan attorneys appealed for clemency due to secrecy used to obtain the execution drug
Gov. Jay Nixo: Rousan's sentence appropriate for role in couple's slayings
Last meal: Bacon cheeseburger, onion rings, soft drink, and pecan pie
Oklahoma stayed executions of inmates who challenged the secrecy

A death row inmate in Missouri who was convicted of killing a farming couple in 1993 has been executed despite pleas for clemency over the secrecy used to obtain the lethal injection drug. William Rousan, 57, was declared dead at 12:10 a.m at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, which is just a few miles from the farm where the killings took place.

Prosecutors say Rousan, his teenage son Brent Rousan and William's brother Robert Rousan murdered Charlie and Grace Lewis on Sept. 21, 1993 as part of a plot to steal two of the couple's cows.

Earlier Tuesday, the U.S. Supreme Court turned down Rousan's request to delay his execution. Efforts to spare Rousan's life hinged an argument that has held little sway over the courts - concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process. Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma Supreme Court stayed the executions of two death row inmates, Clayton Lockett, 38, and Charles Warner, 46, who challenged the secrecy surrounding the process of procuring execution drugs.

Gov. Jay Nixon declined Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the 'cold-blooded plot' that led to the couple's slayings. On Tuesday, he met with relatives, spoke with attorneys and had his last meal: a bacon cheeseburger, onion rings, soft drink, and pecan pie.

Missouri has executed one death row inmate each month since November. William, pictured in his original mugshot, was convicted as the ringleader of the plot. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014.

The killings were part of a plot to steal cattle from the Lewis farm near Bonne Terre. Rousan also lived in the same area of St. Francois County, about 70 miles southwest of St. Louis. On Sept. 21, 1993, Rousan, his 16-year-old son and his brother concocted a plan to kill the couple and steal their cattle. Authorities said at trial that William Rousan was the ringleader. The men drove by the farm, and William Rousan pointed out the cattle to steal. They parked about two miles away and hiked through the woods to the farm. They watched as the couple returned home. Charles Lewis began cutting the lawn with a riding mower while his wife spoke to the couple's daughter on the phone. Brent Rousan ambushed Charles Lewis, shooting him six times.

Efforts to spare Rousan's life hinged an argument that has held little sway over the courts - concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process Grace Lewis told her daughter on the phone she heard gunfire and stepped outside to check on the commotion. Brent Rousan shot her several times. She managed to go back into the home, but William Rousan followed her, placed a garment bag over her head and carried her outside. He turned to his son and said, 'Finish her off.' Brent Rousan fired a single shot into the side of her head.

Brent Rousan is serving life in prison without parole. Robert Rousan served seven years after pleading guilty to second-degree murder.

ProDeathPenalty.Com

On September 21, 1993, William Rousan, his son, Brent Rousan, and his brother, Robert Rousan, met and discussed stealing cattle from Charles "Chuck" and Grace Lewis. Chuck Lewis, sixty-seven, and his wife, Grace, sixty-two, lived near the farm where Rousan resided. Rousan had known the Lewises since 1975 and once sought refuge at their farm after escaping from prison in Washington state. Not only did Charles give William food, clothing, and shelter at that time, when the fugitive was leaving the farm the Lewises gave him $20.

Having devised a plan, the Rousans set out for the Lewis farm. On the way, they discussed killing Mr. and Mrs. Lewis. They agreed that “if it had to be done it had to be done.” As Rousan, his brother, and his son drove past the Lewis farm, Rousan pointed out the cattle that they would be stealing. Rousan parked his truck approximately two miles from the farm. He got out of the truck and removed a .22 caliber rifle that belonged to his girlfriend, Mary Lambing. He loaded the rifle for use in the crime “in case anyone was home.”

Rousan and his son then argued over who would carry the gun. Brent, the son, said that he was “man enough to do whatever needed to be done and that he would use the weapon.” Rousan at first stated that Brent was not man enough, but eventually gave him the gun. He warned Brent that if they were caught, they would “fry.” The three men then hiked through the woods to the Lewis farm where they waited under cover behind a fallen tree. Between 3:00 p.m. and 4:00 p.m. that afternoon, Mr. and Mrs. Lewis returned home. Chuck began to mow the lawn. Grace spoke on the phone to the couple's oldest daughter, who called at approximately 4:00 p.m. Brent grew tired of waiting and exclaimed that he wanted to “do it.” Rousan told Brent to wait until Rousan and Robert had secured the house. Rousan headed for the front door and Robert made his way to the back door. Before they arrived at the home, Chuck saw Brent and called out. Brent fired at least six shots from the rifle, all of which struck Chuck. Chuck died as a result of the multiple gunshot wounds. Grace, speaking by telephone with her daughter, told her daughter that she heard gunfire and hung up the telephone. As Grace exited the house through the front door, Brent shot her several times. Although the bullets fractured both of Grace's arms, the wounds were not fatal. Grace ran back into the house. Rousan followed her, removed a garment bag from a coat rack, placed the bag over Grace's head and the upper part of her body, picked her up, and carried her outside. When Rousan placed Grace on the ground, she was alive. Rousan turned to Brent and instructed him to “finish her off.” Brent fired one shot into the left side of Grace's head. The shot killed her.

The three men wrapped the bodies in a tarpaulin and tied it with a rope. Rousan instructed that they should pick up the shell casings and clean up the blood stains. After doing so, the men deposited the bodies near a shed and left, planning to return later to get the bodies and the cattle. The three men, along with Jerry Rousan, another of Rousan's brothers, returned to the Lewis farm that night. There, they loaded the bodies into Chuck's truck. They took two cows, a VCR, jewelry, soda, two gas cans, and a saddle. The four men then returned to Mary Lambing's farm, where Rousan lived. On the return trip, Brent bragged about the murders. At the Lambing farm, the men buried Chuck and Grace Lewis in a shallow grave by the barn. After digging the grave and placing the bodies in it, the men poured concrete over the bodies. They covered the grave with a pile of manure. They burned rags used to clean the blood from the Lewis house.

The men disposed of the Lewises' property in various ways. On the night of the murders, the men consumed the soda. The cows were later sold at auction. Robert gave the VCR to his sister and brother-in-law, Barbara and Bruce Williams, on the day following the murders. Mr. and Mrs. Williams sold the VCR to a local pawn broker approximately eight months later. Rousan buried the couple's personal items. He gave the remainder of the jewelry to Mary Lambing on special occasions during the following year.

The four men hid and later burned Chuck's truck. When the Lewises' daughter could not reach her parents the following day, she became concerned. She called the police, who undertook an investigation into the Lewises' disappearance. The police investigation continued for nearly a year without an arrest. Nearly a year after the disappearance of Mr. and Mrs. Lewis, on September 15, 1994, Bruce Williams, the brother-in-law to whom Robert Rousan had given the stolen VCR, made a telephone call to the police, believing his call to be anonymous. Bruce Williams told the police where the person who killed Mr. and Mrs. Lewis lived. The police traced the call to Mr. Williams. They interviewed him and later obtained additional information from Robert Rousan.

The police attempted to contact Rousan at Mary Lambing's farm. The officers confronted Rousan, and Rousan fled. On September 20, 1994, Rousan contacted Bruce Williams to ask for a ride to a barn in Washington County. Williams took Rousan to the barn, then notified the police. Rousan, armed with a .22 caliber rifle, was arrested at the barn without incident. He was taken to Washington County Sheriff's Department. There, the officers advised Rousan of his Miranda rights and questioned him. Rousan provided information that implicated him in the murders. He told the police that he had first met the victims in 1975. He saw them again in 1989 after he escaped from custody in the State of Washington and sought refuge at the Lewises' farm. When Chuck discovered Rousan hiding in his barn, he fed him, clothed him, and when Rousan left the farm two weeks later, Chuck gave him twenty dollars. Shortly after that time, Rousan was apprehended and returned to prison. After release from prison in June of 1993, Rousan returned to the farm to thank Mr. and Mrs. Lewis for their kindness and to rekindle their friendship, he said. According to Rousan, Grace Lewis was in poor health. Rousan explained that Chuck asked Rousan to kill Grace to put her out of her misery and to kill him because he did not want to live without his wife. Rousan also claimed that he was hired by Charles Lewis, IV, son of Mr. and Mrs. Lewis, to kill them in exchange for fifty-thousand dollars.

Rousan maintained, however, that his actual motivation for the murders was mercy. The police discovered the Lewises' bodies at Mary Lambing's farm. They also discovered the murder weapon and various articles of the Lewises' personal property there. Rousan was charged with the murder of Charles and Grace Lewis. The jury found Rousan guilty of two counts of first degree murder. At the penalty phase, the state introduced evidence of Rousan's prior convictions for rape, assault, escape, and unlawful possession of a firearm. In addition, the state presented testimony from family members of Mr. and Mrs. Lewis with respect to the impact of their deaths on the family. Rousan presented testimony of friends and family members in mitigation of punishment. The jury recommended that Rousan be sentenced to death for the murder of Grace Lewis. An additional sentence of life without parole was handed down for the murder of Chuck Lewis. Brent Rousan, 16 at the time of the murders, pleaded guilty to two countsChuck and Grace Lewis, murder victims of first-degree murder and is serving consecutive life sentences without the possibility for parole. Robert, pleaded guilty to second-degree murder and was sentenced to 15 years in prison. The plea agreement for the lesser charge and sentence was in return for Robert Rousan’s testimony at his brother’s trial. A documentary about this murder has been produced and can be found here: http://amzn.com/B00I81AL6Q

Missourians to Abolish the Death Penalty

Missourians for Alternatives to the Death Penalty

Wikipedia

A total of 74 individuals convicted of murder have been executed by the state of Missouri since 1976. All were by executed by lethal injection. All executions in Missouri were suspended between June 26, 2006, and June 4, 2007, due to a federal court ruling. Executions resumed on May 20, 2009.

1. George Mercer January 6, 1989 Karen Keeton
2. Gerald Smith January 18, 1990 Karen Roberts
3. Winford L. Stokes, Jr. May 17, 1990 Pamela Brenda
4. Leonard Marvin Laws May 17, 1990 John Seward
5. George Clifton Gilmore August 21, 1990 Mary Luella Watters
6. Maurice Oscar Byrd August 23, 1991 Judy Cazaco, James Wood, Edna Ince, and Carolyn Turner
7. Ricky Lee Grubs October 21, 1992 Jerry Thornton
8. Martsay Bolder January 27, 1993 Theron King
9. Walter Junior Blair July 21, 1993 Kathy Jo Allen
10. Frederick Lasley July 28, 1993 Janie Tracy
11. Frank Joseph Guinan October 6, 1993 John McBroom
12. Emmitt Foster May 3, 1995 Travis Walker
13. Larry Griffin June 21, 1995 Quintin Moss
14. Robert Anthony Murray July 26, 1995 Jeffrey Jackson and Craig Stewart
15. Robert T. Sidebottom November 15, 1995 Mary Sidebottom.
16. Anthony Joe Larette November 29, 1995 Mary Fleming
17. Robert Earl O'Neal December 6, 1995 Arthur Dale.
18. Jeffrey Paul Sloan February 21, 1996 Jason Sloan
19. Doyle James Williams April 10, 1996 A. H. Domann
20. Emmett Clifton Nave July 31, 1996 Geneva Roling
21. Thomas Henry Battle August 7, 1996 Birdie Johnson
22. Richard Oxford August 21, 1996 Harold Wampler and Melba Wampler
23. Richard Steven Zeitvogel December 11, 1996 Gary Wayne Dew
24. Eric Adam Schneider January 29, 1997 Richard Schwendeman and Ronald Thompson
25. Ralph Cecil Feltrop August 6, 1997 Barbara Ann Roam
26. Donald Edward Reese August 13, 1997 James Watson, Christopher Griffith, John Buford, and Don Vanderlinden
27. Andrew Wessel Six August 20, 1997 Kathy Allen
28. Samuel Lee McDonald, Jr. September 24, 1997 Robert Jordan
29. Alan Jeffrey Bannister October 24, 1997 Darrell Ruestman
30. Reginald Love Powell February 25, 1998 Freddie Miller and Arthur Miller
31. Milton Vincent Griffin-El March 25, 1998 Jerome Redden
32. Glennon Paul Sweet April 22, 1998 Missouri State Trooper Russell Harper
33. Kelvin Shelby Malone January 13, 1999 William Parr (he was also sentenced to death by the state of California)
34. James Edward Rodden, Jr. February 24, 1999 Terry Trunnel and Joseph Arnold
35. Roy Michael Roberts March 10, 1999 Correctional officer Tom Jackson
36. Roy Ramsey, Jr. April 14, 1999 Garnett Ledford and Betty Ledford
37. Ralph E. Davis April 28, 1999 Susan Davis
38. Jessie Lee Wise May 26, 1999 Geraldine McDonald
39. Bruce Kilgore June 16, 1999 Marilyn Wilkins
40. Robert Allen Walls June 30, 1999 Fred Harmon
41. David R. Leisure September 1, 1999 James A. Michaels, Sr
42. James Henry Hampton March 22, 2000 Frances Keaton
43. Bart Leroy Hunter June 28, 2000 Mildred Hodges and Richard Hodges
44. Gary Lee Roll August 30, 2000 Sherry Scheper, Randy Scheper and Curtis Scheper
45. George Bernard Harris September 13, 2000 Stanley Willoughby
46. James Wilson Chambers November 15, 2000 Jerry Lee Oestricker Roger B. Wilson
47. Stanley Dewaine Lingar February 7, 2001 Thomas Scott Allen
48. Tomas Grant Ervin March 28, 2001 Mildred Hodges and Richard Hodges
49. Mose Young, Jr. April 25, 2001 Kent Bicknese, James Schneider and Sol Marks
50. Samuel D. Smith May 23, 2001 Marlin May
51. Jerome Mallett July 11, 2001 Missouri State Trooper James F. Froemsdorf
52. Michael S. Roberts October 3, 2001 Mary L. Taylor
53. Stephen K. Johns October 24, 2001 Donald Voepel
54. James R. Johnson January 9, 2002 Deputy Sheriff Leslie B. Roark, Pam Jones, Charles Smith, Sandra Wilson
55. Michael I. Owsley February 6, 2002 Elvin Iverson
56. Jeffrey Lane Tokar March 6, 2002 Johnny Douglass
57. Paul W. Kreutzer April 10, 2002 Louise Hemphill
58. Daniel Anthony Basile August 14, 2002 Elizabeth DeCaro
59. William Robert Jones, Jr. November 20, 2002 Stanley Albert
60. Kenneth Kenley February 5, 2003 Ronald Felts
61. John Clayton Smith October 29, 2003 Brandie Kearnes and Wayne Hoewing
62. Stanley L. Hall March 16, 2005 Barbara Jo Wood
63. Donald Jones April 27, 2005 Dorothy Knuckles
64. Vernon Brown May 17, 2005 Janet Perkins Synetta Ford
65. Timothy L. Johnston August 31, 2005 Nancy Johnston
66. Marlin Gray October 26, 2005 Julie Kerry and Robin Kerry
67. Dennis James Skillicorn May 20, 2009 Richard Drummond
68. Martin C. Link February 9, 2011 Elissa Self
69. Joseph Paul Franklin November 20, 2013 Gerald Gordon
70. Allen L. Nicklasson December 11, 2013 Richard Drummond
71. Herbert L. Smulls January 29, 2014 Stephen Honickman
72. Michael Anthony Taylor February 26, 2014 Ann Harrison
73. Jeffrey R. Ferguson March 26, 2014 Kelli Hall
74. William Rousan April 23, 2014 Charles and Grace Lewis

State v. Rousan, 961 S.W.2d 831 (Mo. 1998). (Direct Appeal)

Defendant was convicted in the Circuit Court, St. Francois County, Timothy J. Wilson, J., on two counts of first-degree murder, and he appealed. The Supreme Court, Covington, J., held that: (1) trial court properly struck venirepersons who could not vote for death penalty or equivocated about their ability to vote for death penalty; (2) there was sufficient evidence that defendant, as accomplice, deliberated on victim's death to submit charge of first-degree murder to jury; (3) admission of evidence of defendant's smuggling of drug paraphernalia did not warrant reversal; (4) trial court did not abuse its discretion in admitting photographs which, though gruesome, depicted injuries sustained by murder victims; (5) trial court properly refused to suppress defendant's confession; (6) evidence that victims' son had motive to kill them was properly excluded as irrelevant; (7) instruction on punishment voir dire, read as a whole, accurately described process regarding penalty phase; (8) trial court properly overruled defendant's objection to prosecutor's statement in closing argument in penalty phase that defendant was asking for mercy but hoping for weakness on part of jury; (9) miscarriage of justice did not result from inconsistent submissions in aggravating circumstances instruction; (10) death sentence was not imposed under influence of passion, prejudice, or any other arbitrary factor; (11) evidence was sufficient to support aggravating circumstances warranting imposition of death sentence; and (12) death sentence was not excessive or disproportionate. Affirmed.

COVINGTON, Judge.

Appellant, William L. Rousan, appeals from convictions for two counts of first degree murder, section 565.020.1 FN1, for which he received one sentence of death and one sentence of life imprisonment without the possibility of parole. Affirmed. FN1. All references are to RSMo 1994 unless otherwise indicated.

The evidence is viewed in the light most favorable to the verdicts. On September 21, 1993, appellant, appellant's son, Brent Rousan, and appellant's brother, Robert Rousan, met and discussed stealing cattle from Charles and Grace Lewis. Charles Lewis, sixty-seven, and his wife, Grace, sixty-two, lived near the farm where appellant resided. Having devised a plan, the Rousans set out for the Lewis farm. On the way, they discussed killing Mr. and Mrs. Lewis. They agreed that “if it had to be done it had to be done.”

As appellant, his brother, and his son drove past the Lewis farm, appellant pointed out the cattle that they would be stealing. Appellant parked his truck approximately two miles from the farm. He got out of the truck and removed a .22 caliber rifle that belonged to his girlfriend, Mary Lambing. He loaded the rifle for use in the crime “in case anyone was home.” Appellant and his son then argued over who would carry the gun. Brent, the son, said that he was “man enough to do whatever needed to be done and that he would use the weapon.” Appellant at first stated that Brent was not man enough, but eventually gave him the gun. He warned Brent that if they were caught, they would “fry.” The three men then hiked through the woods to the Lewis farm where they waited under cover behind a fallen tree.

Between 3:00 p.m. and 4:00 p.m. that afternoon, Mr. and Mrs. Lewis returned home. Mr. Lewis began to mow the lawn. Mrs. Lewis spoke on the phone to the couple's oldest daughter, who called at approximately 4:00 p.m. Brent grew tired of waiting and exclaimed that he wanted to “do it.” Appellant told Brent to wait until appellant and Robert had secured the house. Appellant headed for the front door and Robert made his way to the back door. Before they arrived at the home, Mr. Lewis saw Brent and called out. Brent fired at least six shots from the rifle, all of which struck Mr. Lewis. Mr. Lewis died as a result of the multiple gunshot wounds.

Mrs. Lewis, speaking by telephone with her daughter, told her daughter that she heard gunfire and hung up the telephone. As Mrs. Lewis exited the house through the front door, Brent shot her several times. Although the bullets fractured both of Mrs. Lewis's arms, the wounds were not fatal. Mrs. Lewis ran back into the house. Appellant followed her, removed a garment bag from a coat rack, placed the bag over Mrs. Lewis's head and the upper part of her body, picked her up, and carried her outside. When appellant placed Mrs. Lewis on the ground, she was alive. Appellant turned to Brent and instructed him to “finish her off.” Brent fired one shot into the left side of Mrs. Lewis's head. The shot killed her.

The three men wrapped the bodies in a tarpaulin and tied it with a rope. Appellant instructed that they should pick up the shell casings and clean up the blood stains. After doing so, the men deposited the bodies near a shed and left, planning to return later to get the bodies and the cattle. The three men, along with Jerry Rousan, another of appellant's brothers, returned to the Lewis farm that night. There, they loaded the bodies into Mr. Lewis's truck. They took two cows, a VCR, jewelry, soda, two gas cans, and a saddle. The four men then returned to Mary Lambing's farm, where appellant lived. On the return trip, Brent bragged about the murders. At the Lambing farm, the men buried Mr. and Mrs. Lewis in a shallow grave by the barn. After digging the grave and placing the bodies in it, the men poured concrete over the bodies. They covered the grave with a pile of manure. They burned rags used to clean the blood from the Lewis house.

The men disposed of the Lewises' property in various ways. On the night of the murders, the men consumed the soda. The cows were later sold at auction. Robert gave the VCR to his sister and brother-in-law, Barbara and Bruce Williams, on the day following the murders. Mr. and Mrs. Williams sold the VCR to a local pawn broker approximately eight months later. Appellant buried the couple's personal items. He gave the remainder of the jewelry to Mary Lambing on special occasions during the following year. The four men hid and later burned Mr. Lewis's truck. When the Lewises' daughter could not reach her parents the following day, she became concerned. She called the police, who undertook an investigation into the Lewises' disappearance. The police investigation continued for nearly a year without an arrest.

Nearly a year after the disappearance of Mr. and Mrs. Lewis, on September 15, 1994, Bruce Williams, the brother-in-law to whom Robert Rousan had given the stolen VCR, made a telephone call to the police, believing his call to be anonymous. Bruce Williams told the police where the person who killed Mr. and Mrs. Lewis lived. The police traced the call to Mr. Williams. They interviewed him and later obtained additional information from Robert Rousan. The police attempted to contact appellant at Mary Lambing's farm. The officers confronted appellant, and appellant fled.

On September 20, 1994, appellant contacted Bruce Williams to ask for a ride to a barn in Washington County. Williams took appellant to the barn, then notified the police. Appellant, armed with a .22 caliber rifle, was arrested at the barn without incident. He was taken to Washington County Sheriff's Department. There, the officers advised appellant of his Miranda rights and questioned him. Appellant provided information that implicated him in the murders. He told the police that he had first met the victims in 1975. He saw them again in 1989 after he escaped from custody in the State of Washington and sought refuge at the Lewises' farm. When Mr. Lewis discovered appellant hiding in his barn, he fed him, clothed him, and when appellant left the farm two weeks later, Mr. Lewis gave him twenty dollars. Shortly after that time, appellant was apprehended and returned to prison.

After release from prison in June of 1993, appellant returned to the farm to thank Mr. and Mrs. Lewis for their kindness and to rekindle their friendship, he said. According to appellant, Mrs. Lewis was in poor health. Appellant explained that Mr. Lewis asked appellant to kill Mrs. Lewis to put her out of her misery and to kill him because he did not want to live without his wife. Appellant also claimed that he was hired by Charles Lewis, IV, son of Mr. and Mrs. Lewis, to kill them in exchange for fifty-thousand dollars. Appellant maintained, however, that his actual motivation for the murders was mercy. The police discovered the Lewises' bodies at Mary Lambing's farm. They also discovered the murder weapon and various articles of the Lewises' personal property there. Appellant was charged with the murder of Charles and Grace Lewis.

The jury found appellant guilty of two counts of first degree murder. At the penalty phase, the state introduced evidence of appellant's prior convictions for rape, assault, escape, and unlawful possession of a firearm. In addition, the state presented testimony from family members of Mr. and Mrs. Lewis with respect to the impact of their deaths on the family. Appellant presented testimony of friends and family members in mitigation of punishment.

The jury recommended that appellant be sentenced to death for the murder of Grace Lewis. The jury found five statutory aggravating circumstances: that appellant was convicted of rape in the second degree and assault in the second degree; that the murder was committed while appellant was engaged in the unlawful homicide of Charles Lewis; that appellant directed Brent Rousan to murder Mrs. Lewis; that Mrs. Lewis's murder involved depravity of mind because she was killed after being rendered helpless; and that the murder was committed while appellant was engaged in a robbery. The jury also recommended that appellant be sentenced to death for the murder of Charles Lewis. The jury found four statutory aggravating circumstances with respect to his murder.

The trial court sentenced appellant to death for the murder of Grace Lewis and life imprisonment without the possibility of parole for the murder of Charles Lewis.

I.

Appellant alleges that the trial court erred in sustaining the state's challenge for cause to venirepersons Cowan, Henkin, and Davis. Venirepersons may not be excluded from the jury simply because they state general objections to the death penalty or express conscientious or religious scruples against its infliction. Gray v. Mississippi, 481 U.S. 648, 657, 107 S.Ct. 2045, 2050–51 (1987). Venirepersons may be excluded only where their views would prevent or substantially impair the performance of their duties as jurors in accordance with the instructions and their oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). If it appears that a venireperson cannot consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a first degree murder case, then the juror can be stricken for cause. See State v. Debler, 856 S.W.2d 641, 645–46 (Mo. banc 1993) (discussing death-qualification of venire).

The qualifications of a prospective juror are not determined conclusively by a single response, but are determined on the basis of the voir dire as a whole. State v. Kreutzer, 928 S.W.2d 854, 866 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997). Because the trial court is in the best position to evaluate the venireperson's commitment to follow the law, it has broad discretion in determining the qualifications of a prospective juror. Id. The trial court's ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion. Id. During the state's voir dire, venireperson Cowan expressed doubt that he could vote for the death penalty. He also stated that “there would have to be no doubt at all” before he would vote to impose the punishment of death and that he probably would require more proof of guilt in a capital case than in other cases. In response to later questions, however, Cowan equivocated about his ability to follow the law. Cowan stated that he could sign the death verdict if he were foreman. During the defense's voir dire, Cowan stated a number of times that he could follow the law, but also stated once that he was not sure he could do so. When later questioned by the court and by the state, Cowan stated that he was not sure whether he would require extra proof in a capital case and that he was not sure that his nerves would “hold up” during the trial. Based in part on Cowan's increasing indications of stress during voir dire, the court sustained the state's motion to strike Cowan for cause.

The record supports the trial court's ruling. Cowan expressed ambivalence about whether he could impose the death penalty, and he stated that he probably would require a higher burden of proof in capital cases. Cowan's statements provided a basis for the trial court to conclude that Cowan's views on the death penalty would substantially impair his ability to follow the court's instructions. See State v. Gray, 887 S.W.2d 369, 382–83 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995)(upholding strike for cause based on venirepersons' doubts that they could apply correct burden of proof). The fact that Cowan changed his answer when questioned by appellant's counsel does not require a different conclusion. “Where there is conflicting testimony regarding a prospective juror's ability to consider the death penalty, the trial court does not abuse its discretion by giving more weight to one response than the other....” State v. Roberts, 948 S.W.2d 577, 597 (Mo. banc 1997). Considering the voir dire as a whole, the trial court did not abuse its discretion in sustaining the state's motion to strike venireperson Cowan for cause. See id. (upholding trial court's decision to strike juror for cause after equivocal and conflicting statements regarding imposition of the death penalty); see also State v. Clemons, 946 S.W.2d 206, 225 (Mo. banc), cert. denied, 522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997)(finding “equivocal and shifting” responses to questions sufficient rationale to sustain strike for cause).

Venireperson Henkins stated unequivocally that she could not vote for the death penalty. She later stated to appellant's counsel, “I can't conceive of me voting that way.” In response to further questioning about whether she could set aside her opinion for purposes of doing her duty as a citizen, however, Henkins offered, “I believe so.” The record shows that venireperson Henkins repeatedly and unequivocally indicated that she could not vote for the death penalty. Despite her one equivocal statement to the contrary, the trial court clearly did not err in sustaining the state's motion to strike venireperson Henkins for cause. See Roberts, 948 S.W.2d at 598 (upholding strike of venireperson Laramie). Venireperson Davis initially equivocated about whether he could vote for the death penalty. In response to further questions from the state about voting for the death penalty, Davis stated, “It would be very hard, I honestly do not know if I could do this.” The state then asked whether Davis could sign the death verdict if he were the foreperson. Davis stated “no” and then repeated that he would be unable to do that. During the defense's voir dire, Davis stated, “I honestly don't know that I could vote for the death penalty.” He later repeated his uncertainty regarding his ability to impose this punishment.

There is no requirement that it appear with unmistakable clarity that a venireperson will automatically vote against the imposition of capital punishment. Kreutzer, 928 S.W.2d at 866. A juror's equivocation about his ability to follow the law in a capital case together with an unequivocal statement that he could not sign a verdict of death can provide a basis for the trial court to exclude the venireperson from the jury. Id. at 866–67. In this case, the totality of Davis's answers in voir dire indicate that the trial court did not abuse its discretion in finding that Davis's views about capital punishment would substantially impair the performance of his duties as a juror. Id.

Appellant contends that the trial court was bound by each venireperson's affirmative response to defense counsel's inquiries whether each could set aside personal feelings and follow the law. Appellant's contention disregards the requirement that the court must consider every factor relevant to determining a potential juror's qualifications. See Kreutzer, 928 S.W.2d at 866. Although the juror's ability to follow the law is the ultimate issue in capital cases, the court may, and should, consider a venireperson's answers to all questions relevant to this issue, not just the questions phrased in one particular way. In each of these cases, the totality of the voir dire establishes that the trial court did not abuse its discretion in sustaining the state's motion to strike for cause.

II.

Appellant alleges that the trial court erred in overruling appellant's motion for judgment of acquittal for the murder of Charles Lewis because the evidence was insufficient to prove that appellant deliberated on Mr. Lewis's death. This Court's review of a claim of insufficient evidence is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to the element of a crime beyond a reasonable doubt. State v. O'Brien, 857 S.W.2d 212, 215 (Mo. banc 1993). In making this determination, the evidence is considered in the light most favorable to the prosecution. Id. at 215–16. Evidence and all reasonable inferences therefrom that support a finding of guilt are considered as true. Id. at 216. Conversely, the evidence and any inferences to be drawn therefrom that do not support such a finding are ignored. Id.

To convict a defendant of first degree murder on a theory of accomplice liability, the state must prove that the accomplice deliberated upon the murder; the element of deliberation cannot be imputed. Id. at 217–18. Deliberation means cool reflection upon the victim's death for some amount of time, no matter how short. Id. at 218. A submissible case of accomplice liability for first degree murder exists where there is some evidence that the accomplice made a decision to kill the victim prior to the murder from which the jury could infer that the accomplice coolly deliberated on the victim's death. See Gray, 887 S.W.2d at 376–77.

Ordinarily, deliberation must be proved through evidence of circumstances surrounding the killing. O'Brien, 857 S.W.2d at 218–19. For accomplice liability, circumstances that can support an inference of deliberation must be those properly attributable to the accomplice. Gray, 887 S.W.2d at 376–77; O'Brien, 857 S.W.2d at 219. This Court has outlined three circumstances highly relevant to determining whether accomplice liability may be inferred for first degree murder: first, the defendant or a co-defendant in the defendant's presence made a statement or exhibited conduct indicating an intent to kill prior to the murder; second, the defendant knew that a deadly weapon was to be used in the commission of a crime and that weapon was later used to kill the victim; and third, the defendant participated in the killing or continued with a criminal enterprise after it was apparent that a victim was to be killed. Gray, 887 S.W.2d at 376–77.

The evidence in this case viewed in the light most favorable to the prosecution includes all three circumstances enumerated in Gray, as well as additional evidence from which a reasonable juror could have found beyond a reasonable doubt that appellant deliberated upon the death of Charles Lewis. At the trial, Robert Rousan testified that while he, Brent, and appellant were in the truck headed to the Lewises' farm, the subject of killing the Lewises arose. Either appellant or Brent stated, “if it had to be done it had to be done.” When approaching the Lewis farm, appellant pulled out a semi-automatic rifle and loaded it for use in the commission of the crime, stating that the gun was in case anybody was there. Robert further testified that at that point Brent stated “that he felt that he was man enough to do whatever needed to be done and that he would use the weapon.” Appellant responded that he was not sure that Brent was “man enough,” but eventually handed Brent the weapon. After appellant, Brent, and Robert had been waiting outside the Lewises' residence, Brent exclaimed that if they were going to do anything, they would do it now and not waste anymore time. Robert understood Brent to mean they were going to kill the Lewises. Appellant told Brent to wait until appellant and Robert secured the house. After appellant and Robert left to secure the house, the killing started.

Brent shot Mr. Lewis to death and then shot Mrs. Lewis, breaking her arms. Mrs. Lewis ran inside her house. There, appellant grabbed Mrs. Lewis, dragged her from the house, and directed Brent to “finish it” by killing her. Appellant then oversaw the disposal of the Lewises' bodies and the theft of their property. In sum, Robert's testimony provided evidence that appellant, or a co-conspirator in his presence, expressed an intent to kill Mr. Lewis, that appellant knew that the semi-automatic weapon that killed Mr. Lewis was to be used in the crime, and that appellant continued—and, in fact, directed—the criminal enterprise after Mr. Lewis's murder. Furthermore, appellant's own statement, which was introduced at trial, provided more than enough evidence for the jury to conclude that he deliberated upon the murder of Mr. Lewis. In his statement, appellant discussed his decision to kill the Lewises. Appellant stated that the Lewises, and later one of the Lewises' sons, asked appellant to kill Mr. and Mrs. Lewis. Appellant stated that during one of his visits with Charles Lewis, appellant agreed to kill both Mr. and Mrs. Lewis.

Appellant provided additional evidence of his deliberation on the murder of Mr. Lewis in his statements regarding the day of the murder. In appellant's recorded statement, appellant described the trip to the Lewises' farm: “We left the house. Robert and Brent, they thought we were going to steal some cattle. We weren't going to steal no cows. I didn't tell them, I didn't want them to know. I didn't even know if I could do what I was setting out to do anyway.” Sergeant Conway testified that appellant told him that on the way to the scene of the crime appellant said to Brent that if they got caught, “they would all fry.” Regardless of whether the jurors believed all of appellant's statements to the police, his own version of the events provided numerous bases for the jurors to conclude that appellant made a decision to kill Mr. Lewis prior to the murder and coolly reflected upon it. The evidence in this case was sufficient to submit the charge of murder in the first degree to the jury. See id. at 377.

III.

Appellant alleges that the trial court erred in admitting evidence of appellant's uncharged misconduct in violation of appellant's right to a fair trial. During the state's case in chief, the state introduced into evidence a statement made by appellant in which he admitted murdering the Lewises. In his statement, appellant referred briefly to incidents of past illegal activity, including an escape from prison, a rape conviction, an assault conviction, a federal fire-arms conviction for stealing a gun, and drug-paraphernalia smuggling. With respect to the smuggling, specifically, appellant stated that an old friend of his, Chris Peters, introduced appellant to Charles Lewis, IV, who offered appellant fifty thousand dollars to kill the Lewises. When asked how appellant knew Chris Peters, appellant responded that they used to run drug paraphernalia from Belize into the United States.

Appellant preserved his objection to the admission of the reference to appellant's smuggling drug paraphernalia. As appellant acknowledges, however, appellant failed to object at trial to the other references to uncharged misconduct. In addition, appellant failed to include his challenge to these other references of uncharged misconduct in his motion for new trial. Consequently, appellant failed to preserve, and this Court declines to review, appellant's challenge to the admission of the references to uncharged misconduct other than appellant's reference to smuggling drug paraphernalia.

The general rule is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). A number of exceptions, however, allow the introduction of evidence of other crimes where the evidence has some legitimate tendency to establish the defendant's guilt. Id. If the probative value of such evidence outweighs its prejudicial effect, then it is admissible. Id. Even assuming that this Court might, had it been sitting as a trial court, have redacted the reference to appellant's smuggling drug paraphernalia, there is no prejudice in the reference not having been redacted. Appellant's reference to running of drug paraphernalia constituted less than thirty seconds of an approximately fifty minute confession. The statement was made only to explain appellant's connection to Chris Peters. Appellant's past conduct in smuggling drug paraphernalia was distinct in nature, time, and place from the crime for which he was being tried. The state did not use appellant's involvement in this misconduct to argue that it showed his bad character or his propensity to commit any crimes. In fact, the state never mentioned this uncharged misconduct at all. Considering the overwhelming evidence of appellant's guilt, the limited threat of prejudice from the admission of his reference to smuggling drug paraphernalia would not warrant a reversal even if its admission were error. See Roberts, 948 S.W.2d at 592.

IV.

Appellant asserts that the trial court erred when it denied a mistrial and refused to strike the testimony of Bruce Williams concerning appellant's statement that he “finished off” Grace Lewis. Appellant's objection to Williams's testimony was that the state had failed to disclose the substance of appellant's statement to Williams pursuant to appellant's discovery request. Appellant claims that the trial court's refusal to strike the testimony or grant a mistrial violated appellant's rights to effective assistance of counsel, to confront and cross-examine adverse witnesses, and to due process of law. During the state's case in chief, appellant's brother-in-law, Bruce Williams, testifed about appellant's statements to Williams regarding the Lewises' murder. The prosecutor asked Williams, “Did the defendant, sir, make any statements to you about what had become of Charles and Grace Lewis?” Williams replied, “Yes sir.” The prosecutor then asked, “What did he tell you?” Williams replied, “He told me his boy shot them, that he had to finish them off.” The prosecutor asked, “He said that he himself had finished them off?” Williams answered, “Yes.” The trial court denied appellant's request to strike the evidence and for a mistrial.

Rule 25.03(A)(2) requires the state, upon written request of defendant's counsel, to disclose the substance of any oral statements made by the defendant that is in the possession or control of the state. It is far from clear whether the state was aware of the substance of Williams's recitation of appellant's alleged statement that he shot the Lewises. See State v. Oldham, 743 S.W.2d 547, 549 (Mo.App.1987)(finding no violation of Rule 25.03 because record showed that prosecution was unaware of evidence before witness testified). The trial court may well have been correct in suggesting that Williams was trying to “embellish” his testimony. Assuming, however, that the state violated Rule 25.03, the trial court did not err in refusing to strike Williams's testimony or to declare a mistrial.

The sanction to be imposed for a violation of Rule 25.03 lies within the discretion of the trial court. State v. Kilgore, 771 S.W.2d 57, 66 (Mo. banc), cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989). A trial court's denial of a requested sanction is an abuse of discretion only where the admission of the evidence results in fundamental unfairness to the defendant. Id. Fundamental unfairness exists where there is a reasonable likelihood that the failure to disclose the evidence affected the result of the trial. Id. The state's alleged violation of Rule 25.03 caused no fundamental unfairness because the undisclosed evidence was rejected by the jury. Williams's contention that appellant stated that he shot the Lewises was contrary to both parties' theories of the case. The state contended that only Brent shot the Lewises and that appellant merely aided Brent in doing so. If the jury had believed that appellant had shot the Lewises himself, as Williams suggested, then the state could not have convicted appellant on the sole theory the state submitted to the jury in the guilt phase—accomplice liability. Because the jury found that appellant was an accomplice in Brent's act of killing the Lewises, the jury necessarily rejected the very evidence about which appellant complains. Thus, the defense could not have benefited by more successfully impeaching the truth of Williams's testimony. Because the jury discounted the contested evidence, its earlier disclosure to the defense would not have affected the outcome of the trial.

The state's failure to disclose the substance of Williams's testimony did not affect the result of the trial for an additional reason. The defense adequately challenged the evidence in the same manner as it would have if the evidence had been disclosed earlier. See id. at 66–67. The defense effectively cross-examined Williams about whether appellant actually made the statement. Williams's testimony as to the content of the statement changed, and he was vague as to the details surrounding it. The defense also impeached Williams with the testimony of the police officer who interviewed him. Williams testified that he told the officer about the statement, but the officer said that Williams never told him that appellant made such a statement. This Court notes additionally that the defense did not request a continuance to formulate a response to the newly discovered evidence. When belated disclosure produces no change in the conduct of the trial, it follows that the outcome of the trial has not been effected. The trial court did not abuse its discretion in denying the sanctions requested by the defense.

V.

Appellant contends that the trial court erred in admitting, over his objection, seven 5” x 7” photographs of the victims, state's exhibits 56 through 62, because they were gruesome. The trial court is vested with broad discretion in the admission of photographs. State v. McMillin, 783 S.W.2d 82, 101 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). Photographs are relevant if they show the scene of the crime, the identity of the victim, the nature and extent of the wounds, the cause of death, the condition and location of the body, or otherwise constitute proof of an element of the crime or assist the jury in understanding the testimony. See State v. Feltrop, 803 S.W.2d 1, 10 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). A photograph is not rendered inadmissible simply because other evidence described what is shown in the photograph. Id. at 11. If a photograph is relevant, it should not be excluded simply because it may be inflammatory. As with other relevant evidence, a photograph should not be excluded from evidence unless its prejudicial effect is greater than its probative value. Id. at 11. Insofar as photographs tend to be shocking or gruesome, it is almost always because the crime is shocking or gruesome. Id.

State's exhibit 56 depicts the blue tarpaulin in which Mr. and Mrs. Lewis were wrapped and buried and depicts the Lewises' bodies after they were recovered. State's exhibit 57 depicts the bodies wrapped in a plastic wrapping. Because the bodies had lain in the ground for approximately a year, they were decomposed. Although upsetting and unpleasant to view, the photographs showed the condition and location of the Lewises' bodies and assisted the jury in understanding the pathologist's testimony. Furthermore, the exhibits tended to corroborate the testimony of Robert Rousan, one of the state's key witnesses, with respect to the facts of the case.

State's exhibit 58 shows the gunshot wound to Mr. Lewis's head. The exhibit was relevant to show the injuries sustained by Mr. Lewis, and it was relevant and admissible to aid the jury in understanding the pathologist's testimony.

Exhibit 59 and exhibit 60 depict, respectively, one gunshot wound to Mrs. Lewis's left arm and one to her head. The exhibits showed the extent of her injuries, the cause of her death, and assisted the jury in understanding the testimony of the pathologist. In addition, they assisted the state's proof of deliberation on the part of Brent Rousan and appellant by illustrating the wounds to Mrs. Lewis's arms that rendered her helpless, as well as the fatal point-blank gunshot wound to her head.

State's exhibits 61 and 62 depict the garment bag that appellant placed over Mrs. Lewis's head after it had been removed from her body, showing a hole in the bag that was caused by a close-range gunshot wound to Mrs. Lewis's head. These exhibits corroborated Robert Rousan's testimony regarding the garment bag and aided the state in proving deliberation.

In sum, each of the photographs was relevant, and this Court cannot say that the allegedly prejudicial impact of these photographs outweighed their probative value. Nor can this Court agree that the admission of the photographs caused the jury to act on the basis of passion, rather than reason, as appellant also alleges. The trial court did not abuse its discretion in admitting exhibits 56 through 62.

VI.

Appellant contends that the trial court erred in admitting statements he made to the police. He complains that his initial, unrecorded statement was involuntarily given and that his subsequent recorded statements were tainted as a result.

When a defendant challenges the admissibility of a statement or confession on the ground that it was involuntary, the burden of proving voluntariness falls upon the state to show voluntariness by a preponderance of the evidence. Feltrop, 803 S.W.2d at 12. The test for voluntariness is whether, under the totality of the circumstances, the defendant was deprived of free choice to admit, to deny, or to refuse to answer and whether physical or psychological coercion was of such a degree that the defendant's will was overborne at the time he confessed. State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986). In addition to the question of whether the defendant was advised of his rights and understood them, factors to be considered in reviewing the totality of the circumstances include the defendant's physical and mental state, the length of questioning, the presence of police coercion or intimidation, and the withholding of food, water, or other physical needs. See State v. Debler, 856 S.W.2d at 650; State v. Bittick, 806 S.W.2d 652, 658 (Mo. banc 1991). Evidence of the defendant's physical or emotional condition alone, absent evidence of police coercion, is insufficient to demonstrate that the confession was involuntary. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521–22, 93 L.Ed.2d 473 (1986); see also State v. Feltrop, 803 S.W.2d at 13.

When reviewing a trial court's ruling on a motion to suppress, the inquiry is limited to whether the court's decision is supported by substantial evidence. Feltrop, 803 S.W.2d at 12. Deference is given to the trial court's superior opportunity to determine the credibility of witnesses. Id. As in all matters, a reviewing court gives deference to the trial court's factual findings and credibility determinations, but reviews questions of law de novo. The trial court held a pre-trial hearing on appellant's motion to suppress the statements and issued findings and conclusions overruling the motion. Appellant renewed his objection at trial. The trial court overruled the objection as well as the assertion of error in appellant's motion for new trial.

Viewed in the light most favorable to the trial court's ruling refusing to suppress the statements, the facts surrounding appellant's statements are as follows: Appellant was found several days after fleeing from the police in a barn in Washington County. Although armed, he was arrested without incident. He was not wearing shoes and his feet were bruised and bleeding. Officers transported appellant to the Washington County Jail. While en route, Sheriff Bulloch advised appellant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant understood each of his rights. He was not questioned, but was advised, in fact, not to make any statements until after he arrived at the jail. He indicated that he understood his rights, and he also commented that he was thirsty and that his feet hurt. Upon arrival at the Washington County jail approximately fifteen minutes later, appellant was placed in the sheriff's office with a deputy. Upon the arrival of the Missouri State Highway Patrol investigator Joseph Crump at 6:30 p.m., Crump offered appellant food and water. Appellant accepted the water. During the course of the following interview by Crump, appellant was provided with several glasses of water.

Crump advised appellant of his Miranda rights. Appellant again stated that he understood his rights and that he wanted to make a statement. He told Crump that he was involved in the murders and that he could lead Crump to the bodies. At 6:50 p.m., twenty minutes after Crump's arrival, Sergeant William Conway, a Highway Patrol investigator, joined the interview. Both officers questioned appellant for approximately one and one-half hours. During the interview, appellant made additional statements that implicated him in the murders. The interview was not recorded. At approximately 9:00 p.m., the participants took a one-hour break. During the break appellant was provided a sandwich and paramedics treated his feet. The officers then asked appellant to make a recorded statement. He agreed to the request. At 10:10 p.m., Investigators Conway and Crump conducted a taped interview of appellant. Once again, prior to commencing the interview, appellant was reminded of his rights. He stated in his own words that if he ever wanted to quit the conversation, he could quit the conversation. In the taped statement, appellant made incriminating remarks that were consistent with those that he made during the unrecorded interview. The taped interview concluded at approximately 11:00 p.m.

At no time prior to or during the interviews did appellant ask for counsel or indicate that he did not want to speak with the investigating officers. No one threatened appellant or made any promises to him. Appellant indicated that he understood what was happening and that he had no mental impairments nor educational limitations. Although his feet were injured, the investigating officers believed that appellant was not in pain. Appellant's responses to the officers' questions were responsive to the questions.

Appellant claims that his confession was rendered involuntary by: the length of the interviews; the lack of medical treatment; the lack of food; and his apparent exhaustion. The length of appellant's interrogation was not coercive, in and of itself. Appellant neither alleges nor demonstrates that the length of the questioning caused him to be unable to resist the questioning. Appellant was in police custody for six hours. During that period he was questioned, at most, for three and one-half hours. He incriminated himself during the initial twenty minutes of the interview. The initial interview was of two to two and one-half hours duration. After the interview, a break was taken for one hour. Appellant was then questioned for an additional fifty minutes. The record does not support appellant's claim that the length of questioning was coercive and rendered his confession involuntary. See State v. Blackman, 875 S.W.2d 122, 136 (Mo.App.1994); State v. Simpson, 606 S.W.2d 514, 517 (Mo.App.1980).

With respect to appellant's claim that the lack of medical treatment for his feet rendered his confession involuntary, he must demonstrate that his injuries were such that his will to resist questioning was overborne. See State v. Luster, 750 S.W.2d 474, 478–79 (Mo.App.1988). There is no evidence in this case that appellant was suffering severe pain or that he did not fully understand the subject matter of the conversation. As a consequence, there was no prohibition against his making a voluntary confession to the commission of the crimes. See State v. Maynard, 707 S.W.2d 810, 814 (Mo.App.1986). The interviewing officers testified that appellant did not appear to be in any pain from his injuries, and the record is devoid of any suggestion that appellant's receiving medical treatment was in any way conditioned upon his making an incriminating statement. The failure to provide immediate medical attention to appellant's feet did not render his confession involuntary. See Luster, 750 S.W.2d at 479. Appellant's assertion that he was deprived of food while in custody is contradicted by the record. The record reflects that appellant was offered food before the interviews commenced and that he declined the offer. During the break between interviews, appellant was given a sandwich. He was provided with water throughout the course of the interviews. His claim in this respect also fails.

Appellant's assertion that he was physically exhausted at the time of questioning is also insufficient to prove that his confession was involuntary. The sheriff did describe appellant as being “worn out,” but this assessment was completely unrelated to appellant's ability to participate in an interview. There is no showing whatsoever that appellant was so tired that he was unable to resist questioning. The interviews were conducted at a reasonable time, the length of each interview was reasonable, and the recorded interview, made an hour after the unrecorded statement was given, contradicts appellant's claims of exhaustion by showing appellant sufficiently energetic to make a voluntary statement. Considering the totality of the circumstances, the trial court did not err in finding that appellant's initial unrecorded statement to the police was not the product of police coercion or involuntary. Because the initial confession was not involuntary, appellant's claim that the admission of his audiotaped and videotaped statement were tainted by the involuntary nature of the initial confession also fails.

VII.

Appellant asserts that the trial court erred in submitting jury Instruction 5, MAI–CR3d 304.04 (“Defendant's Responsibility for Conduct of Another Person”), in conjunction with paragraph 4 of the verdict directing Instructions 6 and 11, MAI–CR3d 313.02 (“Murder in the First Degree”). Appellant contends that since the general accomplice liability instruction, Instruction 5, did not incorporate the element of deliberation in the verdict director, the jury would have been confused as to whether appellant was required to have deliberated before the jury could find him guilty of first degree murder. In essence, appellant claims that Instruction 5, read together with Instructions 6 and 11, prejudicially confuses the jury as to whether deliberation is required for an accomplice.

Instruction No. 5 stated: A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense, or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.

Instruction(s) No. 6(11), patterned after MAI–CR3d 313.02, provided as follows: As to Count I(II), if you find and believe from the evidence beyond a reasonable doubt: First, that on or about September 21, 1993, in the County of St. Francois, State of Missouri, Brent Rousan caused the death of Grace (Charles) Lewis by shooting her (him), and Second that Brent Rousan knew that his conduct was causing or was practically certain to cause the death of Grace (Charles) Lewis, and Third, Brent Rousan did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief, then you are instructed that the offense of murder in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt: Fourth, that with the purpose of promoting or furthering the death of Grace (Charles) Lewis, the defendant aided, or encouraged Brent Rousan in causing the death of Grace (Charles) Lewis and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief, then you will find the defendant guilty under Count I(II) of murder in the first degree....

Read together and in context, Instructions 5, 6, and 11 should not have confused the jury. Instruction 5 informed the jury that it could find appellant guilty as an accomplice if for the purpose of committing the offense he aided or encouraged another person in committing it. Instructions 6 and 11 explained to the jury that it must find four specific facts beyond a reasonable doubt before finding the defendant guilty under Counts I and II of murder in the first degree. The fourth specific fact the jury was required to find was that appellant himself deliberated on the deaths of Charles and Grace Lewis. Appellant's allegation of lack of clarity in Instructions 5, 6, and 11 as they stand together does not merit a finding of error.

VIII.

Appellant complains of trial court error in sustaining on the ground of irrelevancy the state's objection to appellant's attempt to show that Charles Lewis, IV, was engaged in a struggle with his father for control of the family business and had a motive for the murders. Appellant also sought to show that other family members suspected that Charles Lewis, IV, was involved in his parents' disappearance. Appellant's proffered evidence clearly was inadmissible to suggest that Charles Lewis, IV, was responsible for the Lewises' deaths. To be admissible, evidence that another person had an opportunity or motive for committing the crime for which a defendant is being tried must tend to prove that the other person committed some act directly connecting him with the crime. State v. Wise, 879 S.W.2d 494, 510 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995); State v. Umfrees, 433 S.W.2d 284, 287 (Mo. banc 1968). The evidence must be of the kind that directly connects the other person with the corpus delicti and tends clearly to point to someone other than the accused as the guilty person. Umfrees, 433 S.W.2d at 288. “Disconnected and remote acts, outside the crime itself cannot be separately proved for such purpose; and evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.” Id.

In this case, no evidence connects Charles Lewis, IV, with the corpus delicti of the murders; therefore, the evidence appellant sought to introduce was irrelevant. Furthermore, even if, as appellant suggested, Charles Lewis, IV, contracted for the murders, the evidence inculpates, rather than exculpates, appellant in that it bolsters his claim that he participated in a murder for hire.

Appellant argues that the proffered evidence was offered not to cast suspicion on Charles Lewis, IV, but to prove that appellant's statement that he was hired to kill the Lewises by Charles Lewis, IV, was a product “of a police suggestion that Charles IV be implicated in the murder.” Appellant's argument, as best as can be understood, is that evidence that Charles Lewis, IV, had a motive to kill the Lewises would corroborate evidence that the police suspected Charles Lewis, IV, of murder, which would prove that police suggested to appellant that he implicate Charles Lewis, IV, in the murders, which would prove that appellant fabricated his story that he was hired to kill the Lewises. Appellant's argument is without merit.

The test for relevancy is whether the offered evidence tends to prove or disprove a fact in issue or corroborates other relevant evidence. Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. banc 1993). The sole fact that evidence is logically relevant does not require its admission. Conley v. Kaney, 250 S.W.2d 350, 353 (Mo.1952). “If evidence pertaining to collateral matters brings into a case new controversial matters which would result in confusion of issues ... or cause prejudice wholly disproportionate to the value and usefulness of the offered evidence, it should be excluded.” Id. “The trial court's ruling on admissibility of evidence is accorded substantial deference and will not be disturbed, absent an abuse of discretion.” Brown, 856 S.W.2d at 56.

Appellant was able to question the highway patrol officers who investigated the Lewises' murders about their suspicion of Charles Lewis, IV, their investigation of him, and their interview of appellant. The record is devoid of any support for the contention that appellant's statement was a product of police suggestion. There was, therefore, no evidence of police coercion for appellant's proffered evidence to corroborate. Furthermore, to the extent that evidence of Charles Lewis, IV's, motive for the murders of the Lewises would be relevant to appellant's statement, the evidence would tend to support, not undermine, the validity of appellant's story by establishing that Charles Lewis, IV, had a motive to hire appellant. Appellant's bare speculation as to the police's involvement in the fabrication of appellant's confession is insufficient to establish that the trial court abused its discretion in excluding evidence that Charles Lewis, IV, may have had a motive for murdering his parents.

IX.

Appellant complains of trial court error in admitting into evidence in the penalty phase a video tape that showed injuries to Vicki Mohrenweiser, the victim of another of appellant's offenses. Appellant does not dispute the relevance of this evidence to the issues of appellant's character and criminal history, which are central issues in the penalty phase of first degree murder trials. Rather, appellant claims that the prejudicial effect of this evidence of impact on a victim in another case outweighs the probative value and that the evidence is unduly inflammatory, contributing to the jury's imposition of the death sentence based upon passion rather than reason. Reviewing for plain error because appellant did not preserve his present theories of error in his motion for new trial, this Court finds no manifest injustice. The court admitted a certified copy of appellant's conviction for the assault. The video tape recording of the assault victim's facial injuries was of forty-seven second duration and was followed by an eight second recording of the victim after she recovered from the assault. Details that reflect the seriousness of a prior offense are relevant. State v. Malone, 694 S.W.2d 723, 727 (Mo. banc 1985), cert. denied, 476 U.S. 1165, 106 S.Ct. 2292, 90 L.Ed.2d 733 (1986). The presentation of the evidence was brief, and the evidence reflected that the victim had fully recovered from the assault. The point is denied.

X.

Appellant claims trial court error in rejecting appellant's penalty phase mitigating circumstances instruction, Instruction Z. The instruction included a listing of statutory and non-statutory mitigating circumstances. Appellant claims that the court's failure to instruct on the two non-statutory mitigating factors prevented the jury from giving full consideration to mitigating evidence. Appellant acknowledges that his claim has been repeatedly rejected by this Court. See State v. Copeland, 928 S.W.2d 828, 853 (Mo. banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997). Appellant nevertheless asks this Court to revisit the issue. There is no reason to do so.

XI.

Appellant asserts that the trial court erred in reading MAI–CR3d 300.03 (“Before Punishment Voir Dire in a Capital Case”) during voir dire. The instruction reads: At this stage of the jury selection process, the attorneys are permitted to question you concerning your views on punishment. The fact that questions are being asked about punishment at this time should not be taken by you as any indication that the defendant(s) in the case before you (is)(are) guilty of the crime(s) charged. Nothing that is said by the attorneys or by another prospective juror during this process is evidence, and you should not let any such statements influence you in any way. The possible punishments for the offense of murder in the first degree are imprisonment for life by the Department of Corrections without eligibility for probation or parole; or death. The purpose of this questioning is to discover whether or not you are able to follow the Court's instructions when considering the appropriate punishments.

A case in which the death penalty is a possible punishment is tried in two stages. In the first stage, the jury must decide whether the defendant is guilty or not guilty. If the defendant is found guilty of murder in the first degree, a second stage is held in which the jury must decide upon the appropriate punishment. If a second stage is reached in this case, the Court will instruct the jury as to the process it must follow to reach its decision on punishment. For present purposes, you should be aware that a conviction of murder in the first degree does not automatically require that the defendant receive the death penalty. Before the jury may consider imposing the death penalty, it must find, unanimously and beyond a reasonable doubt, that the evidence before it establishes the existence of at least one special fact or circumstance specified by law, called a statutory aggravating circumstance. If no statutory aggravating circumstance is found, the defendant cannot be sentenced to death. If the jury does find at least one statutory aggravating circumstance, it still cannot return a sentence of death unless it also unanimously finds that the evidence in aggravation of punishment, taken as a whole, warrants the death penalty, and that this evidence is not outweighed by evidence in mitigation of punishment. The jury is never required to return a sentence of death.

Appellant claims that because the instruction was not approved at the time it was read, there should be no presumption in favor of its validity. This Court, however, allowed use of the instruction before its effective date by order of November 6, 1996. Because the use of the instruction was authorized, the instruction is presumed to have been validly submitted to the jury.

Appellant offers two grounds for challenge to the instruction. First, appellant contends that the second and third paragraphs of the instruction suggest that the court expects that the prospective jurors will have to consider punishment, thereby indicating the expectation of a finding of guilt. Appellant's argument in this respect is entirely without merit, in view of the language in the first paragraph that instructs the prospective jurors that the fact that questions are being asked about punishment should not be taken by them as any indication that the defendant is guilty of the crime charged. In addition, the third paragraph explains that “in the first stage” the jury must decide whether the defendant is guilty or not guilty. Finally, the instructions regarding penalty-phase procedures are written in conditional terms. Only “if” the jury finds the defendant guilty in the first stage will there be a second stage. Contrary to appellant's assertion, the instruction, read as a whole, accurately describes the process regarding the penalty phase and the jury's role in it, and the instruction in no way whatsoever suggests to a jury that the guilt of a defendant is a foregone conclusion. Appellant also asserts that the instruction is flawed because it does not make clear that the jury is required to consider mitigating evidence. Appellant argues that the instruction implies that consideration of mitigating evidence is optional, thereby violating the principle that a jury in a capital case must be given the opportunity fully to consider all mitigating evidence. It appears that appellant is focusing upon the final paragraph of the instruction with respect to this portion of his argument.

Appellant's argument disregards the plain language of the instruction that the jury “still cannot return a sentence of death unless it also unanimously finds that the evidence in aggravation of punishment ... is not outweighed by evidence in mitigation of punishment.” Suffice it to say that the language of the instruction is abundantly clear and in no way supports appellant's claim that the jury might believe that its consideration of mitigation evidence is merely optional. Furthermore, when the case proceeded to the penalty phase, the jury in this case, as in all cases that reach the penalty phase, received further instructions in which the court outlined in detail the role of mitigating evidence in the sentencing process and the manner in which the jury was to consider that evidence in reaching its sentencing decision. Appellant's claim is without merit.

XII.

Appellant asserts that the trial court abused its discretion in overruling his objection to the portion of the prosecutor's penalty phase closing argument in which the prosecutor stated, “The defense has asked you for mercy and what they are hoping for is weakness. I'm sorry. It's a hard choice. Weakness is something we can no longer afford. Do your duty. Thank you folks.” Appellant argues that the prosecutor improperly equated the exercise of mercy through recommending a life sentence with juror weakness. Appellant acknowledges that the remark was isolated, but claims that the remark, in spite of this, had particular force because it was made at the end of the prosecutor's final argument. Appellant contends that the trial court committed reversible error by allowing the statement and that the remark resulted in a sentence of death imposed under the influence of passion, prejudice, or some other arbitrary factor. See section 565.035.3(1). The context of the prosecutor's language was as follows: The prosecutor made the comment during rebuttal in response to the defense's request for mercy. Prior to the objection, the prosecutor stated that the defense had asked for mercy and that “[m]ercy is good.” The prosecutor went on to explain, however, that appellant did not deserve mercy under the facts and circumstances of the case. He then concluded as set forth above.

Trial courts are vested with considerable discretion in controlling closing arguments and their rulings are reversible only for abuse of discretion. See State v. Weaver, 912 S.W.2d 499, 512 (Mo. banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996). Prosecutors can discuss mercy in closing arguments because mercy is a valid sentencing consideration when based on the circumstances of the case, in that a jury can sentence the defendant to life in prison even if it determines that the aggravating circumstances outweigh the mitigating circumstances. See State v. Clemmons, 753 S.W.2d 901, 910 (Mo. banc), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). A prosecutor is allowed to argue that the defendant does not deserve mercy under the facts of a particular case. State v. Mease, 842 S.W.2d 98, 109–110 (Mo. banc 1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2363, 124 L.Ed.2d 269 (1993). Prosecutors should avoid, however, any suggestion that the jury is weak if it fails to return a certain verdict.

The prosecutor's statement was made following a proper discussion with respect to mercy and the jury's role in sentencing. Considering the entire closing argument, the reference to weakness was only part of a larger and otherwise appropriate argument, was isolated and brief, and was not emphasized by the prosecutor. In this context, it cannot be said that the trial court abused its discretion in overruling appellant's objection to the statement. Appellant's related contention that the argument would have caused the jury to return a sentencing verdict based upon passion, prejudice, or other arbitrary factors is likewise without merit.

XIII.

Appellant asserts that the trial court erred in overruling his motion to dismiss the charges of first degree murder. Appellant claims that he received constitutionally inadequate notice that his actions constituted first degree murder because there is no meaningful distinction between the mental state required for first degree murder and that required for second degree murder either in the statutory definitions contained in sections 565.020.1 and 562.016.3 or in this Court's decisions.

Contrary to appellant's assertions, the statutory language of chapter 565 and this Court's decisions clearly distinguish first from second degree murder. A person commits the crime of second degree murder if he “knowingly causes the death of another person.” Section 565.021.1(1). A person commits the crime of first degree murder if “he knowingly causes the death of another person after deliberation upon the matter.” Section 565.020.1. “Deliberation” is “cool reflection for any length of time no matter how brief.” Section 565.002(3). The element of deliberation is the element that separates first degree and second-degree murder. O'Brien, 857 S.W.2d at 217–18. Only first degree murder requires “the unimpassioned premeditation that the law calls deliberation.” Id. at 218. The statutory language of chapter 565 and this Court's decisions, therefore, plainly distinguish between second and first degree murder by requiring cool reflection for a conviction of murder in the first degree. See e.g., Clemons, 946 S.W.2d at 216; Feltrop, 803 S.W.2d at 11.

Appellant argues that this Court's interpretation of deliberation as enunciated in State v. Gray, 887 S.W.2d 369, 376 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995), eliminates the distinction between first and second degree murder. In Gray, this Court stated that “in order to convict [a defendant of first degree murder], there must be some evidence that defendant made a decision to kill the victims prior to the murder.” Appellant overlooks that the conviction was affirmed in Gray only after finding “sufficient evidence to permit an inference ... that the homicides occurred after [the defendant] coolly deliberated on the deaths for some amount of time, however short.” Id. at 377. Gray does not equate first degree murder with the lesser included offense of knowingly causing the death of another person. The statutes and this Court's decisions plainly defeat appellant's claim.

XIV.

The trial court submitted to the jury Instruction No. 25, which contained the statutory aggravating circumstances found by the jury in the murder of Grace Lewis. Instruction 25, in pertinent part, provides: In determining the punishment to be assessed under Count I against defendant for the murder of Grace Lewis, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exists: * * * * 4. Whether the defendant directed Brent Rousan to murder Grace Lewis. 5. Whether the murder of Grace Lewis involved depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman. You can make a determination of depravity of mind only if you find: That the defendant killed Grace Lewis after she was bound or otherwise rendered helpless by defendant or Brent Rousan and that defendant thereby exhibited a callous disregard for the sanctity of all human life. * * * * Appellant asserts that circumstance number 5 and circumstance number 4 are mutually exclusive. Appellant claims that the submissions are inconsistent because the depravity of mind aggravating circumstance, number 5, required the jury to find that “the defendant killed Grace Lewis after she was bound or otherwise rendered helpless,” whereas circumstance number 4 required the jury to find that appellant “directed Brent Rousan to murder Grace Lewis.” Appellant asserts that he could not have “killed Grace Lewis” at the same time he “directed Brent Rousan to murder Grace Lewis.” Appellant points out that while one can commit murder without killing someone, it is “not true that one can kill someone without killing someone.”

Appellant made no challenge to Instruction 25 on this basis either at trial or in his motion for a new trial; therefore, he has not preserved the issue for review. Ordinarily, the point would be procedurally barred. Because the issue relates to issues required to be addressed under independent review, see sec. 565.035.2, however, this Court will review the allegation for plain error resulting in manifest injustice. Appellant is correct in his assertion that aggravating circumstance number 4 and number 5 are inconsistent. As appellant acknowledges, murder can be attributed to an accomplice; consequently, a penalty phase instruction can properly state that an accomplice “murdered” the victim. See Gray, 887 S.W.2d at 387. The act of killing, however, is not a legal conclusion that is attributable to an accomplice; therefore, an accomplice cannot be said to have “killed” the victim of a murder. It follows that a defendant who directed another to murder a victim, could not also have “killed” the victim.

Appellant has failed to show, however, that a manifest injustice resulted so as to require a reversal of the death sentence. A review of the entire record shows that the inconsistency would not have caused jury confusion sufficient to undermine confidence in the jury's deliberation during the penalty phase. The state's theory throughout trial, the evidence, and the jury's finding at the close of the guilt phase supported a sole finding that appellant was guilty of first degree murder as an accomplice; therefore, the statement in the depravity of mind aggravator that “defendant killed Grace Lewis” would be insufficient to confuse the jury as to the nature of appellant's involvement in the murders. This conclusion is buttressed by the fact that neither the court nor the attorneys noticed the discrepancy in the instructions during trial. In this context, the use of “killed” instead of “murdered” or “directed to be killed” in the depravity of mind instruction could not have so confused the jury that a miscarriage of justice resulted. See Gray, 887 S.W.2d at 387 (finding no plain error in submission of erroneous jury instruction because jury not confused). Furthermore, even if both aggravating circumstances were struck as a consequence of inconsistency, the remaining aggravating circumstances found by the jury would suffice to uphold the penalty of death. See infra.

In connection with and as is implicit in the foregoing discussion, there is an issue with respect to the sufficiency of the evidence to support the fifth aggravating circumstance that “the defendant killed Grace Lewis after she was bound or otherwise rendered helpless by defendant.” (emphasis added). Because the evidence showed that appellant directed Brent to kill Mrs. Lewis, but did not kill Mrs. Lewis himself, the evidence was insufficient to support the depravity of mind aggravating circumstance that “the defendant killed Grace Lewis.”

The finding that one aggravating circumstance is unsupported by the evidence, however, does not require reversal. See Weaver, 912 S.W.2d at 522. The jury found the existence of four other aggravating circumstances, each of which is supported by the evidence. It is well-established that only one valid aggravating circumstance need exist to uphold a death sentence. McMillin, 783 S.W.2d at 104; State v. Johns, 679 S.W.2d 253, 267 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). Although appellant asserts that this Court should reexamine this well-settled principle in light of Tuggle v. Netherland, 516 U.S. 10, 116 S.Ct. 283, 133 L.Ed.2d 251 (1995), appellant is mistaken. Tuggle held that the existence of one valid aggravating circumstance was not necessarily sufficient to uphold a death sentence when there was “ a constitutional error in the admission or exclusion of evidence.” Id. at 14. Appellant's challenge to the aggravating circumstances instruction that “the defendant killed Grace Lewis” includes no claim that any improper evidence was before the jury or any admissible evidence was excluded. Tuggle, therefore, is distinguishable, and the finding of the remaining aggravating circumstances requires this Court to uphold the death sentence.FN2

FN2. Appellant asserts in a separate point on appeal that aggravating circumstance number 5, the depravity of mind aggravating circumstance, was too vague to give the jury adequate guidance. Appellant submits that “acted with a callous disregard for the sanctity of all human life” is insufficient to provide proper guidance to a sentencing jury because it is equally as vague as “outrageously and wantonly vile, horrible and inhuman,” language held inadequate in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), without a limiting instruction to guide the jury. For reasons stated in the foregoing discussion, there is no need to address this point.

XV.

Under section 565.035.3, this Court is required to conduct an independent review of the sentence of death. This Court must determine whether appellant's sentence “was imposed under the influence of passion, prejudice, or any other arbitrary factor.” Section 565.035.3(1). Appellant's specific contentions in this respect are without merit, as discussed above. This Court in its independent review, in addition to having addressed appellant's specific contentions, has reviewed the record in its entirety and determines that the death sentence in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

This Court is also required to determine “[w]hether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance.” Section 565.035.3(2). As noted in the preceding point, the jury found five statutory aggravating circumstances related to Mrs. Lewis's murder: that appellant was convicted of rape in the second degree and assault in the second degree; that the murder was committed while appellant was engaged in the unlawful homicide of Mr. Lewis; that appellant directed Brent Rousan to murder her; that her murder was committed while appellant was engaged in the perpetration of a robbery; and that appellant killed Grace Lewis after she was bound or otherwise rendered helpless. The evidence was sufficient with respect to the first four statutory aggravating circumstances. Certified copies of appellant's rape and assault convictions were admitted into evidence and witnesses testified as to the nature of appellant's crimes. Mr. and Mrs. Lewis were murdered one after the other as part of a successful plan to steal their cattle. Appellant directed Brent Rousan to “finish off” Mrs. Lewis after she had been rendered helpless by several gunshot wounds to her arms and by a garment bag that had been placed over her head. The fifth aggravating circumstance is unsupported by the evidence as set forth in point XV.

Finally, this Court must determine whether appellant's sentence is “excessive or disproportionate to the penalty imposed in similar cases, considering ... the crime, the strength of the evidence and the defendant.” Section 565.035.3(3).

The sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering the crime, the strength of the evidence, and the defendant. This case is similar to others in which defendants who were sentenced to death showed callous disregard for life by murdering people who were helpless or rendered helpless. State v. Tokar, 918 S.W.2d 753 (Mo. banc), cert. denied, 519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996); State v. Walls, 744 S.W.2d 791 (Mo. banc), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988); State v. Mallett, 732 S.W.2d 527 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987); State v. Grubbs, 724 S.W.2d 494 (Mo. banc), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707 (1987); State v. Battle, 661 S.W.2d 487 (Mo. banc 1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). Appellant's case is similar to others in which defendants murdered the victims for no reason other than to obtain the victims' property. State v. Hunter, 840 S.W.2d 850 (Mo. banc 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 732 (1993); State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); State v. Ramsey, 864 S.W.2d 320 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).

Appellant does not dispute his involvement in the murders. Appellant's character includes a history of violent criminal offenses. Appellant complains that the co-perpetrators in this case did not receive the sentence of death. The pertinent statute does not require this Court to include such considerations in its proportionality review. Cases resulting in convictions for charges less than first degree murder are not cases in which the “sentence of death or life imprisonment without probation or parole was imposed....” Section 565.035.6. Cases in which the death penalty is waived are cases in which the sentencing authority has no discretion; therefore, there can be no arbitrary and capricious sentencing in such cases. They are not similar cases because the focus of such cases is the prosecutor's exercise of discretion, not the sentencing authority's choice between life or death.

Appellant contends that this Court's proportionality review violates due process. Appellant is mistaken. Proportionality review is not constitutionally mandated, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and this Court has repeatedly reviewed and rejected identical claims. State v. Richardson, 923 S.W.2d 301, 329 (Mo. banc), cert. denied, 519 U.S. 972, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996); Weaver, 912 S.W.2d at 522; State v. Whitfield, 837 S.W.2d 503, 514–15 (Mo. banc 1992). Proportionality review is designed as an additional safeguard against arbitrary and capricious sentencing and to promote the even-handed, rational, and consistent imposition of death sentences. State v. Ramsey, 864 S.W.2d at 328. That this Court chooses to construe Missouri's statute in a different manner from that urged by appellant does not result in a federal constitutional violation. This Court reminds counsel in this regard that counsel has an obligation to cite all relevant authority, including authority contrary to appellant's position. Appellant's claim in this respect is denied.

The jury's recommendation and the court's imposition of the sentence of death for the murder of Grace Lewis was not disproportionate under all the facts and circumstances presented at trial.

XVI.

The judgment is affirmed. All concur.

Rousan v. State, 48 S.W.3d 576 (Mo. 2001). (PCR)

Movant was convicted in the Circuit Court, St. Francois County, Timothy J. Wilson, J., on two counts of first-degree murder, and he appealed. The Supreme Court, Covington, J., 961 S.W.2d 831, affirmed. Movant then sought for post-conviction relief. The Circuit Court, St. Francois County, Timothy J. Wilson, J., denied the motion. Movant appealed. The Supreme Court, Wolff, J., held that: (1) attorneys did not render ineffective assistance by failing to present certain evidence and witnesses, call the movant to testify, and move for redaction of prior convictions from the movant's recorded confession; (2) prosecutor's penalty-phase closing argument urging jury to consider movant as threat to prison employees was permissible; (3) law enforcement officers' personnel files were inadmissible; and (4) the death sentence was constitutional, even though the movant was an accomplice. Affirmed.

WOLFF, Judge.

A jury found William L. Rousan guilty of two counts of first degree murder for the deaths of Charles and Grace Lewis. Section 565 .020.1. He was sentenced to life without parole for Mr. Lewis' murder and death for Mrs. Lewis' murder. He appealed, and this Court affirmed. State v. Rousan (Rousan I), 961 S.W.2d 831 (Mo. banc 1998). Rousan's Rule 29.15 motion for post-conviction relief claiming ineffective assistance of counsel was overruled. He appeals the denial of his Rule 29.15 motion to this Court and raises fifteen points of error. This Court has jurisdiction. mo. Const. art. V, section 10. We affirm.

The Facts and Trial Court Judgment

The facts must be viewed in the light most favorable to the verdicts. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Since the standard under which we view the facts is the same as for a direct appeal, the facts of Rousan I, are adopted and summarized in this opinion.

On September 21, 1993, Rousan, his son, Brent Rousan, and Rousan's brother, Robert Rousan, met and discussed stealing cattle from Charles and Grace Lewis. Charles Lewis, 67, and his wife, Grace, 62, lived near the farm where Rousan resided. Having devised a plan, the Rousans set out for the Lewis farm. On the way they discussed killing Mr. and Mrs. Lewis. They agreed that “if it had to be done it had to be done.” As Rousan, Robert, and Brent drove past the Lewis farm, Rousan pointed out the cattle that they would be stealing. Rousan parked his truck approximately two miles from the farm. He got out of the truck and removed a .22 caliber rifle that belonged to his girlfriend, Mary Lambing. He loaded the rifle for use in the crime “in case anyone was home.” Rousan and his son then argued over who would carry the gun. Brent said that he was “man enough to do whatever needed to be done and that he would use the weapon.” Rousan at first stated that Brent was not man enough, but eventually gave him the gun. He warned Brent that if they were caught, they would “fry.” The three men then hiked through the woods to the Lewis farm where they waited under cover behind a fallen tree.

Between 3 p.m. and 4 p.m. that afternoon, Mr. and Mrs. Lewis returned home. Mr. Lewis began to mow the lawn. Mrs. Lewis spoke on the phone to the couple's oldest daughter, who called at approximately 4 p.m. Brent grew tired of waiting and exclaimed that he wanted to “do it.” Rousan told Brent to wait until Rousan and Robert had secured the house. Rousan headed for the front door and Robert made his way to the back door. Before they got to the door, Mr. Lewis saw Brent and called out. Brent fired at least six shots from the rifle, all of which struck Mr. Lewis. Mr. Lewis died as a result of the multiple gunshot wounds.

Mrs. Lewis, speaking by telephone with her daughter, told her daughter that she heard gunfire and hung up the telephone. As Mrs. Lewis exited the house through the front door, Brent shot her several times. Although the bullets fractured both of Mrs. Lewis' arms, the wounds were not fatal. Mrs. Lewis ran back into the house. Rousan followed her, removed a garment bag from a coat rack, placed the bag over Mrs. Lewis' head and the upper part of her body, picked her up, and carried her outside. When Rousan placed Mrs. Lewis on the ground, she was alive. Rousan turned to Brent and instructed him to “finish her off.” Brent fired one shot into the left side of Mrs. Lewis' head. The shot killed her. The three men wrapped the bodies in a tarpaulin and tied it with a rope. Rousan instructed that they should pick up the shell casings and clean up the blood stains. After doing so, the men deposited the bodies near a shed and left, planning to return later to get the bodies and the cattle.

The three men, along with Jerry Rousan, another of Rousan's brothers, returned to the Lewis farm that night. There they loaded the bodies into Mr. Lewis' truck. They took two cows, a VCR, jewelry, soda, two gas cans, and a saddle. The four men then returned to Mary Lambing's farm, where Rousan lived. On the return trip, Brent bragged about the murders. At the Lambing farm, the men buried Mr. and Mrs. Lewis in a shallow grave by the barn. After digging the grave and placing the bodies in it, the men poured concrete over the bodies. They covered the grave with a pile of manure. They burned rags used to clean the blood from the Lewis house. The men disposed of the Lewises' property in various ways. On the night of the murders, the men consumed the soda. The cows were later sold at auction. Robert Rousan gave the VCR to his sister and brother-in-law, Barbara and Bruce Williams, on the day following the murders. Mr. and Mrs. Williams sold the VCR to a local pawnbroker approximately eight months later. Rousan buried the couple's personal items. He gave the remainder of the jewelry to Mary Lambing on special occasions during the following year. The four men hid and later burned Mr. Lewis' truck.

Rousan, armed with a .22 caliber rifle, was arrested at the barn without incident. He was taken to the Washington County sheriff's department. There, the officers advised Rousan of his Miranda rights and questioned him. Rousan provided information that implicated himself in the murders. He told the police that he had first met the victims in 1975. He saw them again in 1989 after he escaped from custody in the State of Washington and sought refuge at their farm. When Mr. Lewis discovered Rousan hiding in his barn, Mr. Lewis fed him, clothed him, and when Rousan left the farm two weeks later, Mr. Lewis gave him twenty dollars. Shortly after that time, Rousan was apprehended and returned to prison.

After release from prison in June of 1993, Rousan returned to the farm to thank Mr. and Mrs. Lewis for their kindness and to rekindle their friendship, he said. According to Rousan, Mrs. Lewis was in poor health. Rousan explained that Mr. Lewis asked Rousan to kill Mrs. Lewis to put her out of her misery, and to kill him because he did not want to live without his wife. Rousan also claimed that he was hired by Charles Lewis, IV, son of Mr. and Mrs. Lewis, to kill them in exchange for fifty-thousand dollars. Rousan maintained, however, that his actual motivation for the murders was mercy. The police discovered the Lewises' bodies at Mary Lambing's farm. They also discovered the murder weapon and various articles of the Lewises' personal property there. Rousan was charged with the murder of Charles and Grace Lewis.

The jury found Rousan guilty of two counts of first degree murder. At the penalty phase, the state introduced evidence of Rousan's prior convictions for rape, assault, escape, and unlawful possession of a firearm. In addition, the state presented testimony from family members of Mr. and Mrs. Lewis with respect to the impact of their deaths on the family. Rousan presented testimony of friends and family members in mitigation of punishment.

The jury found five statutory aggravating circumstances with respect to Grace Lewis' murder and recommended that Rousan be sentenced to death. The jury also recommended that Rousan be sentenced to death for the murder of Charles Lewis. The jury found four statutory aggravating circumstances with respect to his murder. The trial court sentenced Rousan to death for the murder of Grace Lewis and life imprisonment without the possibility of parole for the murder of Charles Lewis. This Court affirmed on direct appeal. Thereafter, Rousan filed a timely Rule 29.15 motion in the trial court for post-conviction relief. He claimed his attorneys, Richard Scholz and Robert Wolfrum, were ineffective. The court appointed counsel and held a hearing on Rousan's claims. On December 28, 1999, the circuit court overruled his motion.

The Standard of Review

This Court's review is limited to determining whether the motion court clearly erred in its findings and conclusions. Rule 29.15(k); State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995). The findings and conclusions of the motion court “are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.” State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995).

With respect to claims of ineffective assistance of counsel, the burden is on the claimant to prove that his counsel's performance “fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove prejudice, Rousan must show that there is a “reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Shurn, 866 S.W.2d at 468 (quoting State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993)). A reasonable probability, under Strickland, is “a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. 2052.

Rousan's Claims of Ineffective Assistance

I.

Some of Rousan's points on this appeal raise his trial counsel's failure to call certain witnesses. A decision not to call a witness is presumed trial strategy unless clearly shown to be otherwise. State v. Clay, 975 S.W.2d 121, 143 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999). Such strategic choices, if made after thorough investigation, are virtually unchallengeable. State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997), cert. denied, 522 U.S. 1095, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998); State v. Ramsey, 864 S.W.2d 320, 340 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). To prove ineffectiveness with regard to death penalty sentencing, Rousan must show that, but for his counsels' ineffective performance, there is a reasonable probability that the jury would have concluded after balancing the aggravating and mitigating circumstances, death was not warranted. Kenley, 952 S.W.2d at 266.

Rousan first contends that counsel Wolfrum and Scholz were ineffective because they failed to present his past records from the Federal Bureau of Prisons, the Washington department of corrections, and the Garrett Heynes educational center of the Washington department of corrections during the penalty phase. He claims that because these records show he was a great worker, good student and a well-behaved prisoner, the jury would have given him a life sentence. Specifically, they show he did not receive conduct violations in the Washington department of corrections, and while in the federal prison system, he was not viewed as a management problem. The prison records demonstrate that he worked in the vocational horticulture program and received outstanding evaluations from his supervisor, Grover Glance. He claims this information would have shown the jury that he was capable of adjusting to prison life and, thus, would not be a threat to others such that the jury would have recommended a sentence of life without parole.

Defense counsel Scholz testified that the records were not introduced because many of the documents contained information that was not beneficial to Rousan. The information included his use of a knife to rape and assault Vicki Mohrenweiser, his former girlfriend, and other details regarding the assault; his arrest for a charge of felony fraud, that due to an attempted escape he was placed in administrative segregation for 56 days pending the investigation of the incident; that he had dug himself out of the Washington pre-release center when he escaped rather than merely walking away as counsel argued at his trial, that prison authorities labeled him a “violent offender,” and that his escape history indicated a “pattern of irresponsibility.” The documents show that after his escape from the Washington pre-release center, he came looking for Mohrenweiser, made threatening calls to his ex-wife in Texas stating he was on his way to Texas to hurt her, was charged with felony burglary, and that he was the prime suspect in three arson fires involving his ex-in-laws' home, his mother's home, and utility barns owned by his uncle.

Defense counsel did call six witnesses during the penalty phase. John Tweedie, Rousan's junior high and high school cross country and track coach, testified that Rousan was quite dedicated. He also testified that Rousan was a hard worker when they went into a failed drilling business together. Paul Fitzwater, a former track mate and friend, testified that he was a leader on the track team, that people looked up to him, and that when Rousan returned to Potosi he attended track meets and encouraged the runners. The Texas department of protective and regulatory services records, which were introduced by defense, showed that he was awarded custody of his children when his wife was not found to be properly taking care of them, and that he provided a safe environment for them as well as good child care. Mary Lambing, the woman he lived with in Potosi, testified that he worked very well with her horses, that he encouraged her to go to college, and worked so she could attend college full time. Reverend Larry Walburn, who visited with Rousan after his arrest in this case, stated that the once bitter Rousan had been spiritually changed. Paul Rousan, Rousan's brother, testified about Rousan's upbringing and the family's problems.

There is no absolute duty to present mitigating character evidence. Clemmons v. State, 785 S.W.2d 524, 528 (Mo. banc 1990), cert. denied, 498 U.S. 882, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990). The introduction of evidence and selection of witnesses are matters of trial strategy. Kenley, 952 S.W.2d at 266. Rousan did not clearly show that the failure to introduce these records was not reasonable trial strategy. The records clearly contained information about his past misconduct and convictions that went beyond that which the jury heard at voir dire. The introduction of such misconduct could have been prejudicial to Rousan, as “[t]o the average juror ... unconvicted criminal activity is practically indistinguishable from criminal activity resulting in convictions....” State v. Debler, 856 S.W.2d 641, 657 (Mo. banc 1993). Thus, defense counsels' decision not to introduce such non-beneficial items cannot be said to be anything other than reasonable trial strategy.

II.

Rousan claims ineffectiveness based on his counsels' failure to call Timothy Sander, Rousan's former employer, during the penalty phase. Sander was subpoenaed but never called by defense to testify. He would have testified that he had co-owned East Central Forest Products and that Rousan worked for him for about six months starting in October 1993. Sander would have told the jury that he had a hard time finding good help, but that he thought Rousan was “an ‘A’ plus worker,” was highly regarded by other workers, and was never a problem. However, he would also have testified that Rousan told him he had been convicted of crimes, but that the convictions were for escaping from a Washington prison and transporting a horse across a state line, and that Rousan had not mentioned any priors for sexual assault. Sander would also have testified that he gave production bonuses to workers who produced a certain amount each week, and who contacted him when missing a day of work. Those employees who did not call did not receive a bonus. According to Sander, one week Rousan missed work without calling in, Sander offered to let him make up the work on Saturday so he could get the bonus, but Rousan did not show up. On payday, Rousan got angry with Sander when he did not receive a bonus, and Sander told him there had been an opportunity to make up the work he missed. Rousan quit his job the following week. Sander would have testified that he did not feel threatened when Rousan came to his house to pick up his last pay check, but that he could tell something was bothering Rousan. Lastly, he would have stated that he offered to hire Rousan again, and that while he was waiting for an opening, Rousan filled in about two or three times for other workers.

Rousan notes that counsel presented evidence of his concern for his children, the positive influence he had on his current girlfriend Mary, his deprived childhood, and his high school years to counter the state's evidence. However, he claims that his work ethic needed to be shown to the jury as a mitigating circumstance, as it would have shown the jury that he could have made a good adjustment to life in prison by continuing to be a hard worker, and this would have given the jury a reason to impose a life sentence.

Rousan has failed to show the motion court clearly erred in finding that counsel made a reasoned decision in not calling Sander during the penalty phase. The record shows that defense counsel contacted Sander before trial and had an investigator meet with him. Scholz testified that the fact that Sander would testify that Rousan lost his temper when he was fired was one consideration in not calling him. Additionally, the fact that Sander would testify that he did great work for him, which was right after the murder of Mr. and Mrs. Lewis, would probably have weighed against him as well. Sander also had been convicted for armed robbery, making his testimony less credible. Lastly, there is no logical inference that equates working well with adjusting to prison life. Thus, this mitigating evidence does not make it probable that the jury would have found that death was unwarranted. Rather, all these circumstances demonstrate that Sander was not called as part of defense counsels' reasonable trial strategy.

III.

Rousan next argues that his counsel failed to properly object to the state's penalty phase closing argument in which the prosecutor stated: ... The question here when we really come down to it, there is a lot of things I could say but I won't, is that we need to deal with this from the standpoint of what is necessary to protect the community and I say the community, I mean I'm talking about our community as a whole, our state as a whole or whatever. The defendant is going to be removed from the community, yes, but he's going regardless of what you sentence him to, life in prison without the possibility of probation or parole, if you sentence him to that he is going to a prison. There are people in those prisons who go there every day from home and go home every night. So, yes, there is a possibility still that this man could have access to people from the outside. They deserve to be protected. We know this man has participated in ever-increasing spiral of violence....

The motion court found that an objection to this statement would have been unmerited. However, Rousan contends that the prosecutor can only rightfully make this type of statement when the defendant kills someone while he is incarcerated. State v. Antwine, 743 S.W.2d 51, 71 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

The state points out, however, that the prosecutor's statement came in response to the defense argument that society would be protected from Rousan if the jury sentenced him to life in prison.FN1 “A defendant may not provoke reply to his own argument and then assert error.” State v. Kreutzer, 928 S.W.2d 854, 875–76 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997). The prosecutor is allowed to retaliate when defense counsel argues that “a sentence of life imprisonment without the possibility of parole would ‘protect society.’ ” Id. Here, the prosecutor was responding that the defense's statement was not necessarily true, as members of society, such as people who worked at the prison, would still come in contact with Rousan. The motion court did not err. FN1. The defense stated that killing Rousan would not bring back the Lewises and that the jury had to consider the purposes of punishment, including the “the purpose to protect society,” which the defense stated would be accomplished by putting Rousan in jail. To prove its point that society would be protected by Rousan being in jail, defense counsel stated that “he won't walk away from Jeff City walls or he won't walk away from Potosi Correctional Center, it's not a pre-release farm or anything.”

IV.

Rousan also contends that his counsel was ineffective for failing to call him to testify during the guilt phase of his trial. He testified at his Rule 29.15 hearing that he told Scholz numerous times that he wanted to testify and that it was always his understanding that he would testify. He stated that he asked for a recess toward the end of the guilt phase because he and Scholz were having a disagreement about him testifying. Rousan stated that he and Scholz had a heated conversation in the back of the courtroom, where Scholz told him testifying could create problems, but Rousan maintained that he wanted to testify. He stated that Wolfrum came back and said they were being loud, at which point Scholz left, and Rousan told Wolfrum that he wanted to testify.

Wolfrum testified at the Rule 29.15 hearing that he did not remember whether Rousan wanted to testify. But Scholz remembered their conversations, and stated that, though he advised against it, Rousan wanted to testify at his trial. Rousan's prior convictions were brought up during voir dire for a couple of reasons, one of which was in case Rousan testified. Scholz testified that at some point Rousan told Wolfrum at the counsel table that he had changed his mind and did not want to testify. Wolfrum relayed this message to Scholz, who breathed a sigh of relief and went on.

The decision to testify solely rests with the defendant, but the defendant is entitled to receive “reasonably competent advice.” State v. Dees, 916 S.W.2d 287, 301 (Mo.App.1995), cert. denied, 519 U.S. 857, 117 S.Ct. 157, 136 L.Ed.2d 101 (1996). Without more, advice from counsel not to testify is not deemed ineffective assistance of counsel if it might be considered sound trial strategy. State v. Powell, 798 S.W.2d 709, 718 (Mo. banc 1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). The motion court did not clearly err in determining that Rousan, on the advice of counsel, decided not to testify. This conclusion is supported by the testimony. Rousan's testimony and Scholz's testimony conflict as to whether Rousan wanted to testify. The motion court is entitled to believe counsel's testimony and disbelieve that of the defendant. State v. Loggins, 778 S.W.2d 783, 791 (Mo.App.1989); State v. Feltrop, 803 S.W.2d 1, 20 (Mo. banc 1991), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991).

Would the outcome of the case been different had Rousan testified? Rousan would have testified that there was no premeditated plot to kill the Lewises. He went to the farm with his brother and son to steal cattle. When they arrived at the farm, Robert took out the .22 rifle that was in the truck, and Rousan grabbed a lariat, three halters, and three lead ropes. They did not see any cattle until they were sitting on a fallen tree behind the Lewises' barn and seven young calves walked by. At this point Rousan told the two others they were not going to take any because the cattle would be missed. They started to leave just as a lawn mower started. Rousan was walking in front of Brent and Robert when Brent took the gun Robert was holding and said he was not going to leave without getting something. Brent then shot at Mr. Lewis, who was on the lawnmower. Rousan and Robert then proceeded to the Lewises' house to prevent anyone else from being killed. Rousan instructed Robert to go through the front of the house, and Rousan went in the back. When Rousan saw Robert, Robert informed him Mrs. Lewis had gone out the front door.

At this point, Rousan looked out the front door to find Mrs. Lewis coming toward the front door steps, moaning and holding her bloody arms at her side. She climbed up the steps and collapsed on the porch. Rousan went into the house, found a clothing bag, and wrapped it around her body. He then carried her down the stairs where he placed her on the ground with a pillow behind her head. At this point Rousan would have testified that she was not breathing and had no pulse, so he began CPR.

Robert then yelled that there was smoke coming from the barn. Rousan stopped working on Mrs. Lewis because he could not get a pulse and went with Robert to see what was going on. When they arrived at the barn they found Brent trying to reload the gun. Rousan would have testified that Brent was shaking and scared. Rousan asked him to give him the gun, but he refused and continued to reload it. Rousan tried to get the gun back by telling Brent that Mrs. Lewis was really hurt so either he or Brent needed to finish her off. Rousan would have testified that he never intended to harm Mrs. Lewis and merely wanted to get the gun away from Brent, as he feared Brent might shoot him or Robert. However, Brent would not budge. So, he instructed Brent to stay put, and he and Robert returned to the house. When they returned, Rousan began cleaning the blood off the steps. He put Mrs. Lewis, who he thought was dead, under an oak tree and then went to the basement looking for paint to cover the blood on the steps. While this was occurring, Brent came up to the house and shot Mrs. Lewis because he thought she was moving. Rousan stated that Sergeant Crump told him during questioning that his son Brent would probably be on death row because they knew he was the shooter. He claimed his first statement to the police, inconsistent with this statement, was fabricated to help Brent avoid the death penalty. Rousan also made statements about knowing Antonio Salazar and Ron McKinney, who he claimed were in the drug trade, when in fact Salazar was one of his prior attorneys, and McKinney was a man he had been incarcerated with in Washington.

Rousan has not proved he was prejudiced by his failure to testify. There is not a reasonable probability that if he would have testified the result of the proceeding would have been different. State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Rousan's testimony would have been subject to impeachment due to its inconsistency with his confession to police—in his confession he said he went to the farm to kill the Lewises after Mr. Lewis had requested that he kill them.

V.

Rousan next contends that defense counsel was ineffective because they failed to call his son Brent to testify during the guilt phase of the trial. According to Rousan's Rule 29.15 motion, Brent would have provided a defense for him, as Brent would have testified that they went to the farm just to steal cattle, and that Rousan did not kill nor encourage Brent's killing of the Lewises. Rousan contends that Brent wanted to testify for him, that his counsel did not call him, and that their failure to call him was not trial strategy. As noted, a decision not to call a witness is presumed trial strategy unless clearly shown to be otherwise. Clay, 975 S.W.2d at 143.

Moreover, Rousan has not established that Brent would have testified. Though Brent stated in his deposition that he would have testified, Scholz testified that he met with Brent for about fifteen minutes, and that at no time did he want to testify. Though there is a conflicting story, the motion court was allowed to accept Scholz's testimony and disbelieve Brent's. State v. Kelley, 953 S.W.2d 73, 93 (Mo.App.1997). When defense counsel believes a witness' testimony “would not unqualifiedly support his client's position, it is a matter of trial strategy not to call him to the stand, and the failure to call such witness does not constitute ineffectiveness of counsel.” Murphy v. State, 768 S.W.2d 171, 172–73 (Mo.App.1989).

Rousan did not establish that counsels' failure to call Brent was other than reasonable trial strategy. If Brent would have testified, his credibility would have been diminished, and according to Scholz, he would not have been a believable witness. This was based on the fact that during his plea hearing he directly contradicted the story he would have testified to during Rousan's trial, and as Scholz claimed, it “locked in William's participation in the case.” Brent's post-conviction hearing testimony contradicted what he said during taped statements to police, most of which were not favorable to Rousan. For instance, Brent claimed at one point that Rousan put a bag over Mrs. Lewis' head and told him to shoot her in the head. During his first taped statement to police, Brent stated that Rousan shot Mr. Lewis three times, threw him the gun, and told him to finish it. At the plea hearing, he again stated that Rousan fired a couple shots, then threw him the gun, and told him to finish it. At the plea hearing Brent also testified under oath that he fired at Mrs. Lewis a few times, but that Rousan was the one who fired the shot that actually killed her. Brent admitted via deposition, at Rousan's post-conviction hearing, that his current testimony contradicted what he said at his plea hearing and stated that he lied at the plea hearing.

Rousan failed to show that Brent's testimony would have provided a viable defense. As Scholz testified, Brent would have been called if he would have “saved his father (Rousan) from culpability in the shooting.” However, if Brent testified, it clearly would not have helped Rousan and would actually have damaged his defense. Brent probably would have been impeached as to his contrary statements to the police and at his plea hearing. Additionally, his statements implicated Rousan as being the killer of both Mr. and Mrs. Lewis. It is clear that not calling him was nothing other than reasonable trial strategy. Pullen v. State, 895 S.W.2d 253, 255 (Mo.App.1995).

VI.

Rousan alleges the motion court clearly erred in denying his Rule 29.15 motion because his counsel was ineffective for failing to present evidence of Rousan's attorney request form. Before trial a suppression hearing, in which Rousan did not testify, was held. The state's evidence showed that Rousan was arrested and made a statement at the Washington County jail. He was advised of his Miranda rights by Sheriff Bulloch while en route to the jail. Rousan indicated he understood his rights. Rousan was advised not to make any statements until arrival at the jail, and did not in fact make any statements until he arrived.

After arrival at the jail, Rousan was placed in the sheriff's office but was not questioned until Sergeant Joseph Crump arrived. At this point, Sergeant Crump advised Rousan of his Miranda rights, and Rousan told Sergeant Crump that he understood his rights. Sergeant Crump asked Rousan if he was willing to talk at that time, and Rousan said he was. Rousan indicated to Sergeant Crump that he was a part of the murders and could show him where the bodies were located. A little while later, Sergeant William Conway joined the interview. He and Sergeant Crump questioned Rousan for about one and a half hours, but the interview was not recorded. A break was taken and the officers asked Rousan to make a recorded statement, which Rousan agreed to do. At the beginning of his statement, Rousan was again reminded of his rights, and he stated on tape that he knew he could quit the conversation whenever he wanted to. There was no evidence presented at the suppression hearing that Rousan requested an attorney at any time.

Rousan contended, however, in his amended post-conviction motion and at his Rule 29.15 hearing that he was taken to a cell and that when he arrived at the jail he asked Deputy Gilliam for an attorney request form. He stated that he completed the attorney request form,FN2 gave it to Deputy Gilliam and Deputy Nicholson before going to the sheriff's office, then informed Sergeant Crump about the form, and that he did not want to talk. But he eventually gave a statement. He further stated at his next court appearance that he saw the deputies give the form to Wendy Wexler, an assistant public defender, that he discussed the existence of the form with his counsel, and that the form was in his trial counsel's possession during voir dire in Greene County. Rousan then testified that he brought this issue up to his direct appeal attorney, Elizabeth Carlyle, who looked through all the trial attorneys' files but could not find the form. Carlyle then testified that when she could not find the form in the files she had received, she contacted trial counsel to make sure they had given her all the files, but she received no more files.

FN2. He testified that the attorney request form asked for his name, address, social security number, financial status, and where he worked. He noted that it also asked if he was indigent, and whether he needed an appointed attorney to represent him. Wolfrum did not remember any discussion about an attorney request form, could not find it in his files, and did not recall receiving it in Greene County. He did state, though, that he would have asked the trial judge to re-open the suppression hearing if the issue came up after the suppression hearing. Scholz remembered Rousan referring to signing a form for an attorney, but stated that Rousan did not describe the form well. He stated that he made numerous efforts to find the form and find out what happened when he was arrested. Scholz noted that forms for a defendant to request public defender representation are available through the prosecutor, sheriff, and public defender, and that the indigency application asks about finances and whether the defendant wants to invoke his right to silence and be represented by an attorney. Additionally, Scholz testified that something new was brought into court by Wolfrum in Greene County, but he did not remember what the item was. He thought it concerned witness Samuel LaFrank, and stated that if it would have been the form Rousan was referring to, he would have litigated the issue vigorously before the court. Counsel could not find the form during direct appeal, and Rousan failed to produce the form at the post-conviction hearing.

The motion court found this allegation was not supported by credible evidence. The motion court did not clearly err, as the above testimony fails to present credible evidence that an attorney form was actually filled out. None of Rousan's counsel could find the form, and Rousan could not produce it at his post-conviction hearing. The only evidence presented at the post-conviction hearing was the conflicting testimony of Rousan and his counsel, Wolfrum and Scholz. The motion court was free to disbelieve Rousan's claim that he requested an attorney prior to questioning, as a witness' credibility is the motion court's responsibility in a post-conviction matter. Sage v. State, 978 S.W.2d 489, 490 (Mo.App.1998). Additionally, the absence of any other evidence allowed the motion court to conclude no such form existed. State v. Landers, 969 S.W.2d 808, 812 (Mo.App.1998).

VII.

Rousan claims the motion court clearly erred in quashing his subpoena of the Missouri State highway patrol disciplinary files of Sergeant Conway and Sergeant Crump, in failing to review the records in camera, and in denying his Rule 29.15 motion. He claims that he made a plausible showing of misconduct by the officers, in that the officers disregarded his request for an attorney. He claims he was prejudiced because the credibility of the officers is an important issue in felony cases, and he was unable to establish a basis for his trial counsels' ineffectiveness without these records. He claims Wolfrum and Scholz were ineffective for failing to present the files.

Wolfrum testified at the Rule 29.15 hearing that generally the background of the officers is not explored in the investigation of a homicide. He did not remember Rousan speaking of any problem with the police. He also believed that there can be problems with the admissibility of such matters as they may be deemed irrelevant. Scholz did not remember Rousan ever asking that an investigation of Sergeant Crump and Sergeant Conway be conducted. Scholz testified that he was unaware of anything that indicated a history of improper actions by the officers other than being officers getting statements out of defendants. Scholz stated that the defense theory was not that the officers had beat or improperly forced Rousan to confess, and there was nothing else that indicated anything in Rousan's case or in the officer's history that made their personnel records relevant. The motion court found that Rousan did not make a sufficient showing as to the relevancy of the officers' backgrounds, sustained the motion to quash, and refused to review the records in camera. The court found that the evidence presented at the hearing refuted Rousan's allegation that his counsel were ineffective.

Rousan's trial counsel could only be deemed ineffective if these records would have been admissible at trial. Rousan claims the state had a duty to disclose the files under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), because they contained impeachment and exculpatory evidence within the scope of the cases. In Brady, the United State Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or punishment.” 373 U.S. at 87, 83 S.Ct. 1194. This holding applies not only to exculpatory evidence, but also to impeachment evidence. Bagley, 473 U.S. at 676, 105 S.Ct. 3375. In order to be entitled to such information, a defendant must make a plausible showing as to how the information would have been material and favorable to him. State v. Parker, 886 S.W.2d at 916–17.

The files did not contain information about the officers actions with regard to Rousan's case. Rousan failed to show how the personnel files would be material to his guilt or innocence, as there was no showing how the officers' past personnel files would relate to their actions in this case and the records did not relate to his guilt or innocence. Additionally, the records could not have come in to impeach the officers, as it is a general rule of evidence that “[s]pecific acts of misconduct not resulting in a conviction may be inquired about on cross-examination if they relate to the truth and veracity of the witness, but may not be proved by extrinsic evidence.” john C. O'Brien, Missouri Law of Evidence § 5–7 (3d ed.1996). The motion court did not clearly err, as the records were not admissible for impeachment purposes.

VIII.

Rousan next argues that counsel were ineffective because they failed to move to have references to his prior convictions for assault, rape, unlawful use of weapon, and escape redacted from the recorded confession he made to the police. He claims that this prejudiced him because it had no legitimate tendency to prove he was guilty of first degree murder, and its only purpose was to inflame the jury. Rousan claimed Mr. Lewis asked him to kill Mrs. Lewis to put her out of her misery and that Mr. Lewis wanted to be killed because he could not live without his wife. Rousan also claimed that he was hired by their son, Charles Lewis, IV, to kill them in exchange for $50,000. Rousan continually maintained, however, that his actual motivation for the murders was mercy. In his confession to the police he interjected references about his prior convictions and misconduct without any cajoling by the police. He believed if he did not testify, his prior convictions would not come out during the guilt phase. Though he did not testify at trial, the state introduced as evidence the tape of his confession with no omissions. Defense counsel requested that the part of Rousan's confession relating to running drugs be redacted, but this request was overruled. The motion court found that Rousan could not have suffered prejudice by counsel's failure to redact his comments on prior crimes as the police did not broach the subject, rather Rousan interjected them on his own as part of the story he told police. Additionally, his prior convictions had been mentioned during voir dire when it was unclear whether Rousan would later testify, and the jury was instructed at that time that the convictions could not be used as evidence of guilt.

Though a confession is generally inadmissible when it implicates that the defendant committed other offenses, there is an exception: where “the part or parts relating to the other offenses ... are inseparable” from the part that relates to the crime for which the defendant is being tried, “courts almost universally hold the evidence admissible in its entirety, if given subject to a cautionary instruction.” State v. Brown, 584 S.W.2d 413, 415 (Mo.App.1979). In Rousan's confession, he told what the trial court deemed a “unique tale” to show that the Lewises were killed out of mercy. He mentioned his other crimes on his own accord when describing how he came to know Mr. Lewis, and this was a set up to explaining why Mr. Lewis asked him to kill his wife and him. If this portion would have been redacted, the tale would not have been complete. Additionally, the statements that he made did not contain details. Instead Rousan merely mentioned that when he hid in the Lewises' barn, he had escaped from prison where he was being held for raping and assaulting his girlfriend. He was not prejudiced because his convictions had already been brought up to the jury in voir dire, and the court had told the jurors that his past convictions could not be used to find him guilty. Thus, the motion court cannot be said to have clearly erred as there is no reasonable probability that the references to his statements prejudiced him.

IX.

Rousan also claims Wolfrum and Scholz were ineffective for failing to present Samuel LaFrank's testimony during the guilt phase of his case. LaFrank was Robert Rousan's cellmate. He had been convicted of statutory sodomy of a child, unlawful delivery of a controlled substance, and some offenses related to motor vehicles. LaFrank would have testified that Robert told him there was no ringleader because they were just going to the Lewises' farm to steal cattle, and that Mr. Lewis had come across the field on a tractor, at which point Brent went back to the truck to retrieve the gun, and shot Mr. Lewis. LaFrank also would have testified that Rousan tried to take the gun from Brent, but Brent pushed him away and thereafter shot Mrs. Lewis. LaFrank was interviewed by Tony Kuntz, a defense investigator, and based on his findings the defense decided not to call him. Though defense counsel could not distinctly come up with a trial strategy for their failure to call him as a witness, Scholz stated that the sodomy conviction was a factor.

Rousan failed to show that he was prejudiced by counsels' failure to call LaFrank. Counsel did call Timothy Barron, who was also incarcerated with Robert Rousan. Barron had convictions for four burglaries, sale of marijuana, stealing by deceit, and possession of a burglary tool. He testified at trial that Robert told him Rousan did not kill anyone and that it was Brent who, out of control, killed the Lewises. Barron also testified that Robert told him he had made a deal with the state for his testimony, and that if he did not go through with it he would get the death penalty or go to prison for life. Robert then told him it made no sense for everyone to go down for the crime. Barron testified that he was in contact with Rousan while in the Washington County jail, and that Rousan told him he was not guilty. Though Rousan contends that Barron's statements were not cumulative of LaFrank's testimony—because LaFrank's testimony would have showed why they went to the farm, and that the plan had not been to kill the Lewises—there is no reasonable probability that the outcome of the trial would have been different if LaFrank had testified

X.

Rousan next argues that counsel was ineffective for their failure to object to two aggravating circumstances that he contends were duplicative. The jury was given Instruction 25, based on MAI–CR3d 313.40, and containing these aggravators, which Rousan disputes: In determining the punishment to be assessed under Count I against the defendant for the murder of Grace Lewis, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exists: * * * 3. Whether the defendant murdered Grace Lewis for another for the purpose of defendant receiving money or any other thing of monetary value from Grace Lewis or another. * * * 6. Whether the murder of Grace Lewis was committed while the defendant was engaged in the perpetration of robbery.

Rousan cites many United States Supreme Court cases to bolster his proposition that these are cumulative, but he ignores the Missouri law that has consistently rejected this claim. State v. Johnson, 22 S.W.3d 183, 191 (Mo. banc 2000), cert. denied, 531 U.S. 935, 121 S.Ct. 322, 148 L.Ed.2d 259 (2000); State v. Griffin, 756 S.W.2d 475, 489 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989); State v. Walls, 744 S.W.2d 791, 798–99 (Mo. banc 1988), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988); State v. Jones, 749 S.W.2d 356, 365 (Mo. banc 1988), cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 155 (1988). An objection to the instruction would have been meritless, thus counsel cannot be deemed ineffective. Clay, 975 S.W.2d at 136.

XI.

Along with five other statutory aggravators,FN3 the jury was presented with the following statutory aggravator:

FN3. The jury was given Instruction 25, based on MAI CR3d 313.40, which stated: In determining the punishment to be assessed under Count I against the defendant for the murder of Grace Lewis, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exists: 1A. Whether the defendant was convicted of rape in the second degree on August 12, 1998, in the Superior Court of Washington for King County, State of Washington. 1B. Whether the defendant was convicted of assault in the second degree on August 12, 1998, in the Superior Court of Washington for King County, State of Washington. 2. Whether the murder of Grace Lewis was committed while the defendant was engaged in the commission of another unlawful homicide of Charles Lewis. 3. Whether the defendant murdered Grace Lewis for another for the purpose of the defendant receiving money or any other thing of monetary value from Grace Lewis or another. 4. Whether the defendant directed William Brent Rousan to murder Grace Lewis. 5. Whether the murder of Grace Lewis involved depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman. You can make a determination of depravity of mind only if you find: That the defendant killed Grace Lewis after she was bound or otherwise rendered helpless by defendant or William Brent Rousan and that defendant thereby exhibited a callous disregard for the sanctity of all human life. 6. Whether the murder of Grace Lewis was committed while the defendant was engaged in the perpetration of robbery.

You are further instructed that the burden rests upon the State to prove at least one of the foregoing circumstances beyond a reasonable doubt. On each circumstance that you find beyond a reasonable doubt, all twelve of you must agree as to the existence of that circumstance. Therefore, if you do not unanimously find from the evidence beyond a reasonable doubt that at least one of the foregoing statutory aggravating circumstances exists, you must return a verdict fixing the punishment of the defendant at imprisonment for life by the Department of Corrections without eligibility for probation or parole.

5. Whether the murder of Grace Lewis involved depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman. You can make a determination of depravity of mind only if you find: That the defendant killed Grace Lewis after she was bound or otherwise rendered helpless by defendant or William Brent Rousan and that defendant thereby exhibited a callous disregard for the sanctity of all human life.

Rousan's counsel failed to object to the aggravator, which Rousan contends wrongfully asked the jury to consider whether he “killed” Mrs. Lewis rather than “directed Brent Rousan to kill Grace Lewis.” Rousan took issue with statutory aggravators four and five on direct appeal to this Court. This Court, performing plain error review, stated that murder can be attributed to an accomplice, but not the act of killing, because it is not a legal conclusion. Rousan I, 961 S.W.2d at 852. Thus, the Court stated “it follows that a defendant who directed another to murder a victim, could not also have ‘killed’ the victim.” Id. However, the Court stated that using the word “killed” rather than “murder” was insufficient to amount to a miscarriage of justice, because it was consistent with the state's theory and the jury's finding at the closing of the guilt phase, which was that he was guilty of first degree murder as an accomplice. Id. at 853. This Court pointed out that it is well established that only one valid aggravating circumstance is needed to uphold a sentence to death. Id. Thus, even if the two statutory aggravators that he complained of, four and five, were thrown out, the remaining aggravators were sufficient to sentence Rousan to death. Id.

Rousan admits, as this Court stated in ruling on his direct appeal, that Missouri requires only one valid aggravating circumstance to uphold a death sentence. State v. McMillin, 783 S.W.2d 82, 104 (Mo. banc 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). But he contends that the one valid aggravator cannot be presumed to excuse a “constitutional error in the admission or exclusion of evidence.” Tuggle v. Netherland, 516 U.S. 10, 116 S.Ct. 283, 133 L.Ed.2d 251 (1995). However, as this Court pointed out on direct appeal, Tuggle is not applicable here, as it held that a valid aggravating circumstance was not always sufficient to uphold the death sentence when there is a constitutional error with respect to the “admission or exclusion of evidence.” There is no constitutional error in this case, and the aggravating circumstance was sufficient to uphold the death sentence.

XII.

Rousan next claims ineffectiveness of counsel due to counsels' failure to bring out Robert Rousan's inconsistent statement regarding whether Rousan told him to wait while he (Rousan) secured the premises. Robert testified at Rousan's trial that Rousan told him (Robert) to wait while he (Rousan) secured the premises. But in Robert's initial statement to Sergeant Conway and Sergeant Crump, Robert did not mention such a statement. Rousan claims that if this inconsistency would have been brought out at trial, it would have furthered the defense theory that he did not plan on killing anyone when he went to the Lewises' farm. He claims that such a statement rebutted the state's theory that he was the “ringleader,” and supported the conclusion that he was merely guilty of second-degree murder. Rousan specifically states that neither Sergeant Conway nor Sergeant Crump were questioned about the inconsistency in Robert's statements.

Scholz noted that Robert's story had many inconsistencies, and that he brought out the discrepencies he thought were important, which included most of them. In fact, the record shows extensive cross-examination of Robert, and contrary to Rousan's contention, it shows Robert was cross-examined about his “securing the premises” statement. The extent of cross-examination is usually a matter of trial strategy. Kelley v. State, 24 S.W.3d 228, 233 (Mo.App.2000).

XIII.

Rousan next claims that counsel were ineffective for failing to present his BFI work records, which showed he worked from May to August 1993. He claims this evidence would have shown that since he was working he had limited time in which to plan the murders of Mr. and Mrs. Lewis, engage in illegal drug activity, and case the Lewis farm. Rousan feels he was prejudiced because this evidence would have supported that he was guilty only of second-degree murder, and the theory presented by defense, which was that he was not to be believed. Rousan failed to show that counsels' failure to present the BFI records was other than proper trial strategy. The records only showed his gross earnings, withholdings, net pay, and that he received paychecks weekly between May 8, 1993 and August 7, 1993. Nothing in the records showed the times he worked, nor indicated his wages such that his hours could be calculated. As defense counsel Wolfrum testified, the records were not presented because they did not preclude him from casing the farm.

XIV.

Rousan next contends that counsel should have objected to Robert Rousan's testimony. Rousan argues that this testimony was improperly obtained from the state, because in exchange for his testimony, the state offered Robert a second-degree murder conviction and a fifteen year sentence. Rousan cites Rule 4–3.4 in support of his contention, but that rule merely disallows a lawyer to offer a witness an inducement that is prohibited by law. It does not refer to a state offering an inducement. As for his assertion that the inducement given to Robert was unlawful, he cites United States v. Singleton, 144 F.3d 1343 (10th Cir.1998). However, Rousan's reliance on this case is misplaced. While the Tenth Circuit originally ruled that a promise of leniency violated a federal statute, it later overruled itself. United States v. Singleton, 165 F.3d 1297 (10th Cir.1999) (en banc), cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999).

XV.

Rousan lastly argues that counsel was ineffective for failing to object to the death penalty sentence. He states that the Eighth Amendment prohibits an accomplice convicted of first-degree murder to be sentenced to death unless the accomplice killed, attempted to kill, intended for the victim to be killed or that lethal force be used. He contends that he did none of these. The motion court found that “[w]hile a person cannot be sentenced to death solely based on the acts of another, where the defendant's own acts showed an intention that a murder be committed and the evidence shows deliberation by the defendant, such defendant may be sentenced to death based on his own conduct.” See State v. Isa, 850 S.W.2d 876 (Mo. banc 1993). Rousan asserts that the motion court misconstrued Isa, which also states that “it is never permissible to sentence a person to death for the acts of another.” Id. at 902–03. But the motion court's conclusion is not contrary to this proposition, as the court specifically stated that “the defendant's own acts” must show the intention for murder to be committed and that the evidence show that the “defendant” deliberated.

Rousan also argues that the sources of the evidence to prove intent lacked credibility such that it was not clear that Rousan intended to kill Mrs. Lewis. He bases this claim on the fact that it took the jury several hours to reach a decision in both phases of the trial. Rousan fails to note that counsel did move for acquittal at the end of the state's case and argued in the motion for new trial that there was insufficient evidence to sustain Rousan's conviction. Rousan's confession to the police shows that he clearly deliberated about Mrs. Lewis' murder. He told the police that Mr. Lewis had asked him to kill Mrs. Lewis because she was sick, and that he finally agreed to kill both Mrs. Lewis and Mr. Lewis. Additionally, Rousan described the trip to the Lewises' house in his recorded statement to the police, saying: “We left the house. Robert and Brent, they thought we were going to steal some cattle. We weren't going to steal no cows. I didn't tell them, I didn't want them to know. I didn't even know if I could do what I was setting out to do anyway.” Sergeant Conway also testified that Rousan told him that on the way to the Lewises' farm that he told Brent that “they would all fry” if they got caught.

Robert's testimony also points to the fact that Rousan deliberated. He testified that when the three men approached the Lewis farm, Rousan pulled out and loaded a semi-automatic rifle, which he said was for use if anybody was there. When Brent exclaimed that they needed to do what they were going to do, and not waste anymore time, Rousan told him to wait until he (Rousan) and Robert secured the house. Brent then shot Mrs. Lewis, although he only broke her arms. As Mrs. Lewis headed into the house, Rousan grabbed her, and directed Brent to “finish it.”

Though Robert's and Rousan's statements may have contained inconsistencies, the “credibility and the effects of conflicts or inconsistencies in testimony are questions for the jury.” State v. Jackson, 608 S.W.2d 420, 421 (Mo. banc 1980). On review this Court must accept as true all evidence favorable to the verdict, including all favorable inferences, and disregard all contrary evidence and inferences, as “the Court's function is not to substitute its judgment for that of the jury but to determine whether the evidence, considered in the light most favorable to the state is sufficient to support the verdict.” State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980). Additionally, a reviewing court does not weigh the evidence. State v. Kelly, 539 S.W.2d 106, 109 (Mo. banc 1976). Rather, review of a challenge to the sufficiency of the evidence “is limited to determining whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged.” Id.

Conclusion

We have reviewed the findings and conclusions of the motion court. We uphold the motion court's legal conclusion. Moreover, there is no clear error in the court's factual findings. The judgment is affirmed. PRICE, C.J., LIMBAUGH, WHITE, HOLSTEIN and BENTON, JJ., and CRAHAN, Sp.J., concur. LAURA DENVIR STITH, J., not participating.

Rousan v. Roper, 400 F.3d 635 (8th Cir. Mo. 2006). (Federal Habeas)

Background: Following affirmance of conviction and death sentence for first-degree murder, 961 S.W.2d 831, petitioner sought a writ of habeas corpus. The United States District Judge for the Eastern District of Missouri, Rodney W. Sippel, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Gruender, Circuit Judge, held that: (1) court did not violate petitioner's constitutional rights in striking three potential jurors for cause in capital case despite their isolated statements that they could put aside their personal reservations about imposing death sentence; (2) evidence supported the finding that petitioner deliberated in the killing of victim; (3) prosecutor's penalty-phase rebuttal closing argument, that jury would show weakness if it granted petitioner's request for mercy, did not render capital trial fundamentally unfair; (4) inconsistent wording in invalid “depravity of mind” aggravating circumstance did not prejudicially confuse the jury's death-penalty deliberations and render death sentence unconstitutional; and (5) refusal to list petitioner's proffered specific non-statutory mitigating circumstances in the jury instructions was not contrary to, nor an unreasonable application of, clearly established federal law. Affirmed.

GRUENDER, Circuit Judge.

A Missouri state court sentenced William L. Rousan (“Rousan”) to death after he was convicted of two counts of first-degree murder. The Missouri Supreme Court affirmed the convictions and sentence and subsequently affirmed the denial of Rousan's motion for post-conviction relief. Rousan timely petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief on nineteen separate grounds. The district court FN1 denied habeas relief but granted a certificate of appealability on eight of the grounds. Rousan now appeals the denial of the writ on those eight grounds. We affirm. FN1. The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.

I. BACKGROUND

In September 1993, Rousan resided at the farm of his girlfriend, Mary Lambing. Rousan, his son, Brent Rousan (“Brent”), and his brother, Robert Rousan (“Robert”), decided to steal cattle from the nearby farm of sexagenarians Charles and Grace Lewis. They drove to the Lewis farm in Rousan's truck. During the drive, the three men discussed the prospect of killing the Lewises and agreed that “if it had to be done it had to be done.” Rousan parked the truck approximately two miles from the Lewis farm. Rousan then pulled out Lambing's .22 caliber rifle and loaded it “in case anyone was home.” Brent asked to be the one who carried the rifle, stating that he was “man enough to do whatever needed to be done and that he would use the weapon.” After debating whether Brent was “man enough,” Rousan yielded the gun to Brent. He warned Brent that if they were caught, they would “fry.” The three men then approached on foot to within viewing distance of the Lewis residence and sought cover behind a fallen tree.

The three men lay in wait until the Lewises returned to their residence that afternoon. Charles Lewis mowed the lawn, while Grace Lewis talked on the phone to the couple's daughter. Brent became impatient and said he wanted to “do it.” Rousan instructed Brent to remain behind the tree while he and Robert secured the house. Before Rousan reached the house, however, Charles Lewis spotted Brent and shouted at him. Brent shot Charles Lewis six times with the rifle, causing his death. Inside the house, Grace Lewis told her daughter on the phone that she heard gunfire and hung up. When Grace ran out the front door to investigate, Brent shot her several times, fracturing both of her arms. Grace turned and ran back into the house. Rousan followed. Rousan placed a garment bag over Grace's head and the upper part of her body, picked her up, carried her back outside and placed her on the ground. At that point, Grace was still alive. Rousan instructed Brent to “finish her off.” Brent fired one shot into Grace's head. That shot was fatal. Rousan, Brent and Robert took the bodies to the Lambing farm and buried them. About a year later, Rousan's brother-in-law called the police, believing the call to be anonymous, and informed them where the Lewises' killer resided. The police traced the call to Rousan's brother-in-law, interviewed him for more information, and eventually apprehended Rousan hiding on another nearby farm.

A jury found Rousan guilty on two counts of first-degree murder for the murders of Grace and Charles Lewis. The jury recommended a death sentence on both counts, finding five statutory aggravating circumstances in reaching each decision. The trial judge pronounced a death sentence for the murder of Grace Lewis and a sentence of life without parole for the murder of Charles Lewis. On direct appeal, the Missouri Supreme Court affirmed the convictions and sentences. State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998). After exhausting his state-law post-conviction remedies, see Rousan v. State, 48 S.W.3d 576 (Mo. banc 2001), Rousan sought a writ of habeas corpus under 28 U.S.C. § 2254 on nineteen separate grounds. The district court denied habeas relief but granted a certificate of appealability on the following eight claims: (1) the striking of three jurors for cause violated Rousan's rights under the Sixth, Eighth and Fourteenth Amendments; (2) insufficient evidence supported the conviction for first-degree murder of Charles Lewis, violating the due process clause of the Fourteenth Amendment; (3) the admission into evidence of victim photographs violated due process; (4) trial counsel was ineffective for failing to move to redact references to Rousan's prior convictions when Rousan's statement to police was introduced as evidence; (5) the prosecutor's penalty phase closing argument violated due process; (6) a jury instruction on accomplice liability prejudicially confused the jury, violating due process; (7) a jury instruction on statutory aggravating circumstances prejudicially confused the jury, violating Rousan's rights under the Eighth and Fourteenth Amendments; and (8) the trial court's refusal to instruct on specific non-statutory mitigating circumstances, violating Rousan's rights under the Eighth and Fourteenth Amendments.

II. DISCUSSION

We review the district court's findings of fact for clear error and its conclusions of law de novo. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005). To succeed on a claim for habeas relief under § 2254, an applicant must show that the state court adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) ( “AEDPA”). “A decision is ‘contrary to’ federal law ... if a state court has arrived ‘at a conclusion opposite to that reached by [the Supreme Court] on a question of law’ or if it ‘confronted facts that are materially indistinguishable from a relevant Supreme Court precedent’ but arrived at an opposite result.” Davis v. Norris, 423 F.3d 868, 874 (8th Cir.2005) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (alteration in Davis ). “A state court unreasonably applies clearly established federal law when it ‘identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.’ ” Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495) (alteration in Davis ). In other words, it is not enough for us to conclude that, in our independent judgment, we would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable. Lyons, 403 F.3d at 592. Finally, facts found by the state court are presumed to be correct unless the applicant can rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A. The Striking of Three Potential Jurors for Cause

Rousan claims the trial court violated his constitutional rights in striking three potential jurors for cause. Potential jurors may not be struck for cause simply because they state general conscientious or religious scruples with regard to the death penalty. Gray v. Mississippi, 481 U.S. 648, 657, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). However, a potential juror may be struck for cause if his views “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quotation omitted). In striking such a juror, it is not necessary to prove with “unmistakable clarity” that a potential juror's ability is impaired. Id.

Rousan points to statements made during voir dire by each of the three potential jurors, venirepersons Cowan, Henkins and Davis, to the effect that they could put aside their personal reservations and apply the law as instructed with regard to the death penalty: DEFENSE COUNSEL: [Y]ou personally will be satisfied if they prove the defendant guilty beyond a reasonable doubt to you, is that right? COWAN: Yes. DEFENSE COUNSEL: You won't make them do more than what the law says, you will apply the burden of proof which says that the State must prove the defendant guilty beyond a reasonable doubt, that's the standard you use? COWAN: Yes. * * * * * * DEFENSE COUNSEL: Can you set aside your opinion for the purposes of doing citizenship duty as a juror ...? HENKINS: I believe so. * * * * * * COURT: Could you follow the instructions and give realistic consideration to both sides? DAVIS: Yes. COURT: Could you under any circumstances return a verdict of death in a case? DAVIS: Yes, I think.

The Missouri Supreme Court summarized the voir dire of the three potential jurors as follows: During the state's voir dire, venireperson Cowan expressed doubt that he could vote for the death penalty. He also stated that “there would have to be no doubt at all” before he would vote to impose the punishment of death and that he probably would require more proof of guilt in a capital case than in other cases. In response to later questions, however, Cowan equivocated about his ability to follow the law. Cowan stated that he could sign the death verdict if he were foreman. During the defense's voir dire, Cowan stated a number of times that he could follow the law, but also stated once that he was not sure he could do so. When later questioned by the court and by the state, Cowan stated that he was not sure whether he would require extra proof in a capital case and that he was not sure that his nerves would “hold up” during the trial. Based in part on Cowan's increasing indications of stress during voir dire, the court sustained the state's motion to strike Cowan for cause. * * * * * *

Venireperson Henkins stated unequivocally that she could not vote for the death penalty. She later stated to appellant's counsel, “I can't conceive of me voting that way.” In response to further questioning about whether she could set aside her opinion for purposes of doing her duty as a citizen, however, Henkins offered, “I believe so.” The record shows that venireperson Henkins repeatedly and unequivocally indicated that she could not vote for the death penalty. Despite her one equivocal statement to the contrary, the trial court clearly did not err in sustaining the state's motion to strike venireperson Henkins for cause. Venireperson Davis initially equivocated about whether he could vote for the death penalty. In response to further questions from the state about voting for the death penalty, Davis stated, “It would be very hard, I honestly do not know if I could do this.” The state then asked whether Davis could sign the death verdict if he were the foreperson. Davis stated “no” and then repeated that he would be unable to do that. During the defense's voir dire, Davis stated, “I honestly don't know that I could vote for the death penalty.” He later repeated his uncertainty regarding his ability to impose this punishment. State v. Rousan, 961 S.W.2d at 839-40 (citations omitted).

The Missouri Supreme Court then summarized its response to Rousan's claim: Although the juror's ability to follow the law is the ultimate issue in capital cases, the court may, and should, consider a venireperson's answers to all questions relevant to this issue, not just the questions phrased in one particular way. In each of these cases, the totality of the voir dire establishes that the trial court did not abuse its discretion in sustaining the state's motion to strike for cause. Id. at 841.

The availability of habeas relief for a claim that the state court improperly struck a potential juror for cause is both a legal and factual question. Kinder v. Bowersox, 272 F.3d 532, 544 (8th Cir.2001). First, the Missouri Supreme Court's holding was not contrary to, nor an unreasonable application of, clearly established federal law. The Missouri Supreme Court correctly identified the governing principle-that the ultimate issue is the potential juror's ability to follow the law as instructed by the court, rather than the potential juror's personal views about the death penalty. Gray, 481 U.S. at 657-58, 107 S.Ct. 2045; Wainwright, 469 U.S. at 424, 105 S.Ct. 844. It was reasonable to apply that principle to the facts of the case by examining the totality of the responses of each potential juror during voir dire, rather than relying on isolated responses that appeared favorable to Rousan's argument. Second, there is no clear and convincing evidence to rebut the presumption of correctness we must afford to the state court's factual finding that the performance of the three potential jurors would be substantially impaired. See Kinder, 272 F.3d at 543 (“In this case, Judge Blackwell found that regardless of their recantations or rehabilitation, the four jurors needed to be excused for cause. It was ‘peculiarly within [the] trial judge's province’ to evaluate the ‘demeanor and credibility’ of the venire members and to make that determination.”) (quoting Wainwright, 469 U.S. at 428, 105 S.Ct. 844) (alteration in Kinder ). Therefore, we affirm the district court's denial of habeas relief based on the claim that the trial court violated Rousan's constitutional rights in striking three potential jurors for cause.

B. Sufficiency of the Evidence to Support the Conviction for First-Degree Murder of Charles Lewis

Rousan contends that the evidence did not support a finding that he deliberated in the killing of Charles Lewis. Under Missouri law, deliberation, described as “cool reflection upon the victim's death for some amount of time, no matter how short,” is required for a first-degree murder conviction under an accomplice liability theory and may not be imputed from an accomplice. State v. O'Brien, 857 S.W.2d 212, 217-18 (Mo. banc 1993). Reviewing all the facts in a light most favorable to the verdict, the Missouri Supreme Court determined that a reasonable juror could have found deliberation beyond a reasonable doubt. State v. Rousan, 961 S.W.2d at 841-42. That is precisely the analysis required by federal law. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We find no clear and convincing evidence in the record to rebut the presumption of correctness in the state court's factual finding. In particular, Rousan's agreement that “if it had to be done it had to be done,” his act of loading the rifle “in case anyone was home” and his warning as he handed the rifle to Brent that they would “fry” if they were caught support the finding that Rousan deliberated in the killing of Charles Lewis. Therefore, the district court did not err in denying habeas relief on this ground.

C. The Admission into Evidence of Victim Photographs

The trial court admitted seven photographs of the victims' bodies taken after the bodies were recovered. The bodies, recovered one year after the murders, were severely decomposed. Rousan argues the gruesome appearance of the bodies rendered the photographs unfairly prejudicial. “Questions regarding admissibility of evidence are matters of state law, and they are reviewed in federal habeas inquiries only to determine whether an alleged error infringes upon a specific constitutional protection or is so prejudicial as to be a denial of due process.” Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir.1993). The petitioner must show that “the alleged improprieties were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.” Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.1995) (quotation omitted).

The Missouri Supreme Court found that the photographs were probative because they “tended to corroborate the testimony of Robert Rousan, one of the state's key witnesses,” “assisted the jury in understanding the testimony of the pathologist” and “assisted the state's proof of deliberation” by showing that Grace Lewis was bound and shot at close range, State v. Rousan, 961 S.W.2d at 844-45, and concluded that “this Court cannot say that the allegedly prejudicial impact of these photographs outweighed their probative value [or that] the admission of the photographs caused the jury to act on the basis of passion, rather than reason,” id. at 845. This was not contrary to, nor an unreasonable application of, clearly established federal law. See Kuntzelman v. Black, 774 F.2d 291, 292-93 (8th Cir.1985) (per curiam) (finding no error of constitutional magnitude in the admission of “flagrantly gruesome” photographs where the photographs “were at least arguably relevant and probative in showing the identity and condition of the deceased, the location of the wound, and the intent of [the petitioner] in firing the shot that killed [the victim]”). We also find that the admission of the photographs, even if it had been erroneous, did not “fatally infect the proceedings,” Anderson, 44 F.3d at 679, because “[t]he jury's finding ... clearly rests on a substantial factual basis, even absent the photographic evidence in controversy here,” Kuntzelman, 774 F.2d at 292. Therefore, the district court did not err in denying habeas relief on this ground.

D. Ineffectiveness of Trial Counsel for Not Moving to Redact References to Prior Convictions from Rousan's Statement to Police

Rousan referred to his prior convictions in his videotaped confession to the police. The police did not prompt Rousan to talk about the convictions; rather, Rousan volunteered the information to explain how he had initially met the Lewises. Rousan v. State, 48 S.W.3d at 590-91. The videotaped confession was played at trial, and trial counsel objected to the inclusion of Rousan's mention of his illegal drug use, but not to Rousan's references to his other prior convictions for assault, rape, unlawful use of a weapon, and escape. Rousan argues that his trial counsel's failure to move to redact those references from the confession allowed the jury to convict him improperly on the basis of his prior convictions.

In order to overturn a conviction on grounds of ineffective assistance of counsel, the defendant must show that his trial counsel's performance fell below the standard of customary skill and diligence that a reasonably competent attorney would display and that there is a reasonable probability that the outcome would have been different but for the substandard actions of counsel. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

The Missouri Supreme Court found no reasonable probability that the failure to move to redact the references to those prior convictions prejudiced Rousan because (1) the jury already had learned of the prior convictions during voir dire and had been given a limiting instruction that they could not use the convictions to determine guilt or innocence, and (2) the objection would have been fruitless because the references were necessary to explain the story Rousan told in his confession.FN2 Rousan v. State, 48 S.W.3d at 590-91. The Missouri Supreme Court properly applied Strickland, and its analysis was not contrary to, nor an unreasonable application of, clearly established federal law. Therefore, the district court did not err in denying habeas relief on this ground.

FN2. Rousan's story to the police was as follows: [Rousan] told the police that he had first met the victims in 1975. He saw them again in 1989 after he escaped from custody in the State of Washington and sought refuge at the Lewises' farm. When Mr. Lewis discovered [Rousan] hiding in his barn, he fed him, clothed him, and when [Rousan] left the farm two weeks later, Mr. Lewis gave him twenty dollars. Shortly after that time, [Rousan] was apprehended and returned to prison. After release from prison in June of 1993, [Rousan] returned to the farm to thank Mr. and Mrs. Lewis for their kindness and to rekindle their friendship, he said. According to [Rousan], Mrs. Lewis was in poor health. [Rousan] explained that Mr. Lewis asked [Rousan] to kill Mrs. Lewis to put her out of her misery and to kill him because he did not want to live without his wife. [Rousan] also claimed that he was hired by Charles Lewis, IV, son of Mr. and Mrs. Lewis, to kill them in exchange for fifty-thousand dollars. [Rousan] maintained, however, that his actual motivation for the murders was mercy. State v. Rousan, 961 S.W.2d at 838-39.

E. The Prosecutor's Penalty Phase Closing Argument

During penalty-phase rebuttal closing argument, the prosecutor addressed the defense's request for mercy. The prosecutor stated that “[m]ercy is good” but went on to make the state's argument that Rousan did not deserve mercy under the facts and circumstances of the case. The prosecutor then concluded, “The defense has asked you for mercy and what they are hoping for is weakness.... Weakness is something we can no longer afford. Do your duty.” Rousan argues that the closing admonition not to be “weak” improperly influenced the jury's decision to recommend the death penalty.

To grant habeas relief based on an inappropriate comment from a prosecutor, the comment must be so inappropriate as to make the trial fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 180-81, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). There must be a “reasonable probability” that the error affected the jury's verdict and that without the error, the jury's verdict would have been different. Newlon v. Armontrout, 885 F.2d 1328, 1336-37 (8th Cir.1989).

The Missouri Supreme Court found that the prosecutor should have avoided suggesting that the jury would be “weak” if it returned a certain verdict. However, the Missouri Supreme Court found no reversible error because the statement was brief, isolated, and followed a proper discussion of mercy and the jury's role in sentencing. State v. Rousan, 961 S.W.2d at 850-51. The Missouri Supreme Court did not act contrary to, nor unreasonably apply, clearly established federal law in determining that there was no reasonable probability that the verdict would have been different absent the prosecutor's statement. See, e.g., Kinder, 272 F.3d at 551 (holding it was not an unreasonable application of federal law for the Missouri Supreme Court to find no reversible error where the prosecutor stated during penalty-phase argument that the defendant was “pure evil. Evil stares at you in the courtroom, and I ask you to stare back and do not blink.... We don't want to share our streets one day with evil. We cannot risk one day sharing our lives and our world with evil.”). Therefore, the district court did not err in denying habeas relief on this ground.

F. The Jury Instruction on Accomplice Liability

The general accomplice-liability jury instruction given in Rousan's trial stated that “[a] person is responsible ... for the conduct of another person ... if, for the purpose of committing that offense, he aids or encourages the other person in committing it.” Rousan argues that the jury could have used that instruction to ascribe to Rousan liability for Brent's commission of first-degree murder without a finding that Rousan deliberated. To support a conviction for first-degree murder based on accomplice liability, the deliberation element cannot be imputed; the state had to prove deliberation by Rousan. State v. Rousan, 961 S.W.2d at 841.

Where the defendant alleges that jury instructions may have been erroneously interpreted, the proper inquiry under federal law “is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). In conducting this analysis, the jury instructions must be viewed as a whole. Id. at 378, 110 S.Ct. 1190.

The instructions in this case are similar to those we considered in Johns v. Bowersox, 203 F.3d 538 (8th Cir.2000). The petitioner in Johns challenged a portion of the jury instructions that required the jury to find only that either the defendant or his accomplice acted with deliberation. Id. at 542-43. However, the verdict-directing instruction also required a finding “that with the purpose of promoting or furthering the commission of capital murder, the defendant acted together with or aided or encouraged [the accomplice] in committing that offense.” Id. at 543 (emphasis added). Applying the pre-AEDPA standard of review, we agreed with the Missouri Supreme Court that these instructions, viewed as a whole, “effectively required the jury to find deliberation” by the petitioner. Id.

Similarly, in this case, the verdict-directing jury instructions for both first-degree murder counts required the jury to find that “the defendant aided, or encouraged [the murder] and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,” in order to find Rousan guilty. See State v. Rousan, 961 S.W.2d at 847-48. The Missouri Supreme Court, viewing the jury instructions as a whole, found no reasonable likelihood that the general accomplice-liability instruction caused the jury to ignore the explicit requirement for a finding of deliberation by Rousan in the verdict-directing instructions. Id. As suggested by Johns, the Missouri Supreme Court's conclusion in this case was not contrary to, nor an unreasonable application of, clearly established federal law. Therefore, we find that the district court did not err in denying habeas relief on this ground.

G. The Jury Instruction on Statutory Aggravating Circumstances

Rousan contends that the jury instruction on statutory aggravating circumstances in the murder of Grace Lewis prejudicially confused the jury. Jury Instruction No. 25 read as follows (emphasis added): In determining the punishment to be assessed under Count I against defendant for the murder of Grace Lewis, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exists: * * * * * * 4. Whether the defendant directed Brent Rousan to murder Grace Lewis. 5. Whether the murder of Grace Lewis involved depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman. You can make a determination of depravity of mind only if you find: That the defendant killed Grace Lewis after she was bound or otherwise rendered helpless by defendant or Brent Rousan and that defendant thereby exhibited a callous disregard for the sanctity of all human life.

The jury found the presence of five aggravating circumstances in the murder of Grace Lewis, including the fourth and fifth aggravating circumstances as listed above.FN3 Rousan argues that the use of the word “killed” instead of “murdered” in describing the fifth aggravating circumstance prejudicially confused the jury because “killing,” unlike “murder,” could not be imputed to Rousan as an accomplice of Brent. Rousan contends the jury was confused because it found that he both directed Brent to commit the murder, as stated in the fourth aggravating circumstance, and “killed” Grace Lewis himself, as stated in the fifth. Because Rousan did not object to the instruction at trial, this claim was reviewed by the Missouri Supreme Court for plain error resulting in manifest injustice.FN4 State v. Rousan, 961 S.W.2d at 852.

FN3. The other three statutory aggravating circumstances that the jury found to exist were a 1988 Washington conviction for rape, a 1998 Washington conviction for assault and the fact that Rousan murdered Grace Lewis while he also was engaged in the unlawful homicide of Charles Lewis. Rousan does not challenge the jury's finding on these three statutory aggravating circumstances. FN4. An issue that receives plain-error review on direct appeal in state court is not procedurally barred from review under the AEDPA. James v. Bowersox, 187 F.3d 866, 869 (8th Cir.1999).

Where a petitioner claims that an instruction confused the jury, federal law requires the court to determine “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The challenged instruction “must be considered in the context of the instructions as a whole and the trial record.” Id. The Missouri Supreme Court agreed with Rousan that the fourth and fifth aggravating circumstances were inconsistent with each other. However, it found the inconsistency would not undermine confidence in the jury's penalty-phase deliberations because:

The state's theory throughout trial, the evidence, and the jury's finding at the close of the guilt phase supported a sole finding that appellant was guilty of first degree murder as an accomplice; therefore, the statement in the depravity of mind aggravator that “defendant killed Grace Lewis” would be insufficient to confuse the jury as to the nature of appellant's involvement in the murders. State v. Rousan, 961 S.W.2d at 853. The Missouri Supreme Court's analysis of the allegedly confusing jury instruction was not contrary to, nor an unreasonable application of, clearly established federal law.

The Missouri Supreme Court did invalidate the jury's finding that the fifth aggravating circumstance was present because there was insufficient evidence to show Rousan “killed” Grace Lewis himself, rather than by imputation as an accomplice to Brent. Id. However, that court found that even if the fourth and fifth aggravating circumstances were both invalidated, the remaining three aggravating circumstances found by the jury would still support the death sentence because, under Missouri law, “only one valid aggravating circumstance need exist to uphold a death sentence.” Id.

Rousan contends that a death sentence premised on a jury's finding of even one invalid aggravating circumstance is unconstitutional because the invalid aggravating circumstance may have skewed how the jury weighed aggravating and mitigating evidence. We have long analyzed the effect of an invalid aggravating circumstance on the constitutionality of a death sentence by first determining whether the defendant was sentenced in a “weighing” or “non-weighing” state. See, e.g., Clay v. Bowersox, 367 F.3d 993, 1005 (8th Cir.2004) (“In a nonweighing state such as Missouri, a finding of one valid aggravating circumstance renders harmless the conclusion that a second aggravating circumstance was constitutionally infirm.”); Sloan v. Delo, 54 F.3d 1371, 1385 & n. 13 (8th Cir.1995). However, in a recently announced decision, Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163L. Ed.2d 723 (2006), the Supreme Court has stated that the “weighing/non-weighing scheme is accurate as far as it goes, but it now seems to us needlessly complex and incapable of providing for the full range of possible variations” in state death-penalty sentencing procedures. Id., 884, 126 S.Ct. 884. Instead, “we are henceforth guided by the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” Id. at ---- - ----, 126 S.Ct. 884 (footnote omitted). In other words, where the allegation of error is “the skewing that could result from the jury's considering as aggravation properly admitted evidence that should not have weighed in favor of the death penalty,” id. at ----, 126 S.Ct. 884, constitutional error occurs “only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor,” id. at ----, 126 S.Ct. 884. In addition to the narrow situation addressed in Sanders, the Court recognized that constitutional error also may arise from “other distortions caused by the invalidated factor beyond the mere addition of an improper aggravating element.” Id. at ----, 126 S.Ct. 884 n. 6.

Analyzing California's death-penalty sentencing procedure, the Supreme Court noted that the jury first must find the existence of at least one statutory “eligibility factor,” or “special circumstance” in the parlance of the California statute, to render the defendant eligible for the death penalty. Id. at ----, 126 S.Ct. 884. If the jury finds one of these eligibility factors, it then considers a separate list of “sentencing factors” in determining whether the individual defendant merits the death penalty. The list of sentencing factors directs the jury to consider, among other things, any special circumstances found in the eligibility phase and the circumstances of the crime in general. Id. at ----, 126 S.Ct. 884. The jury in habeas petitioner Sanders's case found four special circumstances to be present and pronounced a death sentence; two of the special circumstances were later invalidated by the state supreme court. Id. at ---- - ----, 126 S.Ct. 884. The Supreme Court found that the jury's consideration of the two invalidated eligibility factors did not render Sanders's death sentence unconstitutional because at least one eligibility factor was valid and “[a]ll of the aggravating facts and circumstances that the invalidated factor permitted the jury to consider were also open to their proper consideration under one of the other factors,” namely the general circumstances-of-the-crime sentencing factor. Id. at ----, 126 S.Ct. 884.

The Missouri death-penalty sentencing procedure has the same salient aspects as the California scheme considered in Sanders. In Rousan's case, Jury Instruction No. 25 instructed the jury that “if you do not unanimously find from the evidence beyond a reasonable doubt that at least one of the foregoing statutory aggravating circumstances exists, you must return a verdict [of] imprisonment for life.” The statutory aggravating factors fulfill the role of the “eligibility factors” described in Sanders. Jury Instruction No. 26 instructed the jury that, in the event it had found the presence of at least one of the statutory aggravating circumstances listed in Instruction No. 25, it was then to consider all evidence from the guilt and penalty phases of the trial and “decide whether there are facts and circumstances in aggravation of punishment which, taken as a whole, warrant the imposition of a sentence of death upon the defendant.” This is analogous to the general circumstances-of-the-crime sentencing factor in Sanders.

We find that the fourth and fifth aggravating circumstances did not permit the jury to consider any aggravating facts and circumstances that were not already “open to their proper consideration” as stated in Jury Instruction No. 26. Sanders, 884, 126 S.Ct. 884. Thus “[t]he erroneous factor[s] could not have ‘skewed’ the sentence, and no constitutional violation occurred.” FN5 Id. Furthermore, we find no constitutional error arising from any “other distortions caused by the invalidated factor.” Id. at ----, 126 S.Ct. 884 n. 6; see supra 961 - 963 (discussing Rousan's claim that the invalid factor confused the jury). FN5. We would reach the same result under the previous weighing/non-weighing jurisprudence. See Clay, 367 F.3d at 1005.

Contrary to Rousan's argument, the presence of an aggravating-versus-mitigating-factors weighing step anywhere in the jury instructions does not establish Missouri as a “weighing state” under that framework. In this case, the jury was required to find the existence of one of the listed statutory aggravating circumstances as a necessary prelude to contemplating the death penalty, but it was then instructed to consider, or “weigh,” all facts and circumstances of the case in deciding whether the death penalty should apply. This establishes Missouri squarely as a non-weighing state. See Stringer v. Black, 503 U.S. 222, 229-30, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (“[I]n Georgia [a non-weighing state], the jury must find the existence of one aggravating factor before imposing the death penalty, but aggravating factors as such have no specific function in the jury's decision whether a defendant who has been found to be eligible for the death penalty should receive it under all the circumstances of the case. Instead, under the Georgia scheme, in making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant.”) (internal quotations omitted); Sloan, 54 F.3d at 1385-86 (“In a nonweighing state such as Missouri, a finding of at least one aggravating circumstance is a threshold requirement to imposing a death sentence. Here the jury found one valid aggravating circumstance, that of multiple murders, and was free then to consider all evidence in aggravation and mitigation.”)

We conclude that the Missouri Supreme Court did not act contrary to, nor unreasonably apply, clearly established federal law in determining that the inconsistent wording in the fifth aggravating circumstance did not prejudicially confuse the jury's death-penalty deliberations and that the first three aggravating circumstances found by the jury were each sufficient to permit the jury to consider the death penalty. Therefore, we find that the district court did not err in denying habeas relief on this ground.

H. The Trial Court's Refusal to Instruct on Specific Non-Statutory Mitigating Circumstances

Missouri law lists seven specific mitigating circumstances that must be included in the jury instructions in a death penalty case if suggested by the evidence. R.S. Mo. § 565.032.3. Rousan proposed two additional specific mitigating circumstances for inclusion in the jury instructions that would have directed the jury to consider his “early life and upbringing” and the fact that “other participants in this crime have received sentences of less than death.” The trial court rejected the two specific additional mitigating circumstances. However, the instruction stated, “You shall also consider any other facts or circumstances which you find from the evidence in mitigation of punishment.” Rousan contends that the trial court's rejection of his two proffered specific circumstances violated his rights under the Eighth and Fourteenth Amendments. FN6. Rousan also argues that his two proposed specific mitigating circumstances should have been included in the instructions because they fit within two of Missouri's statutorily required mitigating circumstances. To the extent this claim challenges the Missouri courts' application of a Missouri statute, rather than alleging a violation of Rousan's constitutional rights, we cannot review it. See Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir.2005) (“We may not review questions of state law that have been decided by a state court, even under the deferential standard of 28 U.S.C. § 2254(d).”) (internal quotation omitted).

Once a jury has determined, through a process that channels and limits the jury's discretion to ensure that the death penalty is not imposed in an arbitrary or capricious manner, that a defendant is eligible for the death penalty, the jury must be allowed to conduct “a broad inquiry into all relevant mitigating evidence to allow an individualized determination” as to whether the death penalty is warranted in a specific case. Buchanan v. Angelone, 522 U.S. 269, 275-76, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). “[T]he State may shape and structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.” Id. at 276. There is no requirement that the jury be instructed on particular mitigating factors. Weeks v. Angelone, 528 U.S. 225, 232-33, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). “[T]he standard for determining whether jury instructions satisfy these principles [is] ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ” Buchanan, 522 U.S. at 276, 118 S.Ct. 757.

The Missouri Supreme Court noted Rousan's acknowledgment that it had repeatedly rejected this argument in other cases, and it chose not to revisit the issue. State v. Rousan, 961 S.W.2d at 849. We have previously agreed with the Missouri Supreme Court's determination that an essentially identical instruction “adequately covered the jury's consideration of mitigating evidence and complied with constitutional requirements for the submission of mitigating circumstances in death penalty cases.” Tokar v. Bowersox, 198 F.3d 1039, 1050 (8th Cir.1999). Therefore, we find that the refusal to list Rousan's proffered specific mitigating circumstances in the jury instructions was not contrary to, nor an unreasonable application of, clearly established federal law. The district court did not err in denying habeas relief on this ground.

III. CONCLUSION

We conclude that the district court did not err in denying habeas relief on each of the eight grounds for which Rousan was granted a certificate of appealability. Therefore, we affirm the judgment of the district court denying the writ of habeas corpus.