Opinion
No. SC79129
August 21, 2007
MOTION TO RECALL MANDATE, WITH SUGGESTIONS
Comes now Andrew Lyons, by attorney, and pursuant the holding of this Court in State v. Whitfield , 107 S.W.3d 253, 269, fn. 17 (Mo.banc 2003), does pray that this Honorable Court recall its mandate issued in the above captioned cause. The grounds for this Motion, with suggestions, will be set forth in the following.
History of the Prior Proceedings against Mr. Lyons, Facts Pertinent to Grounds for Relief
In 1996, under case number CR395-7F, Mr. Lyons was tried by jury and convicted, of murder in the first degree in the death of his girlfriend, Bridgette Harris, of murder in the first degree in the death of Bridgette's mother, Evelyn Sparks, and of involuntary manslaughter in the death of Mr. Lyons' infant son, Dontay Harris. State v. Lyons , 951 S.W.2d 584, 588 (Mo.banc 1997). The jury recommended a sentence of death for the murder Bridgett Harris, and of seven years for the involuntary manslaughter of Dontay Harris, but could not agree upon punishment for the murder of Evelyn Sparks. State v. Lyons , supra. The Trial Court ultimately imposed sentences of death against Mr. Lyons for the murder of Bridgette Harris and for the murder of Evelyn Sparks. State v. Lyons , supra. This Court affirmed those convictions and sentences. State v. Lyons , supra.
Petition for post-conviction relief was brought on behalf of Mr. Lyons in the Circuit Court of Missouri, Thirty-Third Judicial Circuit, under case number CV397-866CC. That Court denied relief upon that petition, and this Court affirmed that result in Lyons v. State , 39 S.W.3d 32 (Mo.banc 2001).
Since the time of his sentencing in 1996, Mr. Lyons has been incarcerated at the Potosi Correctional Center.
Per the dictates of this Court's decision in State v. Whitfield, the Sentence of Death for the killing of Evelyn Sparks is unlawful, and the proper procedure for redressing that wrong is via Motion to Recall the MandateAs noted already above, Mr. Lyons was charged with three homicides which were alleged to have occurred on September 20, 1992 (L.F. 15-16). At trial, for the homicides of Evelyn Sparks and the homicide of Bridgette Harris, Mr. Lyons was found guilty of murder in the first degree (L.F. 307-308, Tr. 803). The applicable penalty phase substance and procedure was that set forth in the 1986 versions of Section 565.030 RSMo. and Section 565.032 RSMo. The jury was given instructions of law in use at the time (L.F. 276-298). At the end of their penalty phase deliberations, as concerned the homicide of Evelyn Sparks, the jury returned a form of verdict reporting that it was unable to decide or agree upon the punishment (L.F. 304).
"L.F.", as used hereinafter, refers to the Legal File prepared for this Court in connection with Mr. Lyon's direct appeal in this case.
"Tr." as used hereinafter, refers to the transcript of Mr. Lyon's trial, filed with this Court upon direct appeal.
Per the dictates of Section 565.030.4 RSMo. (1986), Mr. Lyons was entitled to a sentence of life imprisonment without probation or parole if the jury failed to unanimously make certain requisite findings of fact against him regarding the existence of at least one statutory aggravating circumstance (Section 565.030.4(1) RSMo.), and that the evidence in aggravation of punishment warrants imposing the death penalty (Section 565.030.4(2) RSMo.), and that aggravating circumstances outweigh mitigating circumstances (Section 565.030.4(3) RSMo.), and that there is no other reason not to impose a death sentence (Section 565.030.4(4) RSMo.). State v. Whitfield , 107 S.W.3d 253, 270-271 (Mo.banc 2003). There is no record proof demonstrating that the jury made any of these requisite findings, and thus Mr. Lyons was entitled to be sentenced to life imprisonment without probation or parole for the murder of Evelyn Sparks. State v. Whitfield , supra. Instead, the Trial Court sentenced Mr. Lyons to death for the murder of Evelyn Sparks (Tr. 1037-1038), thus denying Mr. Lyons his right to trial by jury on the subject and exceeding the maximum punishment permissible under the law and the facts of the case. State v. Whitfield , supra.
This issue, regarding the sentence exceeding the maximum allowed, was not raised during Mr. Lyons' direct appeal proceedings. State v. Lyons , 951 S.W.2d 584 (Mo.banc 1997). This issue, regarding the sentence exceeding the maximum allowed, was also not raised during Mr. Lyons' initial post-conviction proceedings. Lyons v. State , 39 S.W.3d 32 (Mo.banc 2001). The issue came to the fore only after these proceedings were complete, when the United States Supreme Court decided the matter of Ring v. Arizona , 536 U.S. 584 (2002). In that case, it was decided that the issue of punishment by death was one for which a defendant was entitled to a determination by a jury, not by a Judge. Ring v. Arizona , 589. Following the lead from Ring , this Court found that previously approved procedures, whereby death sentences were imposed by a Judge after the failure by a jury to reach a unanimous verdict upon punishment, violated constitutional and statutory provisions, and had to be set aside as unlawful. State v. Whitfield , 257-267. This Court further decided that, in cases decided before Ring , it is appropriate for the defendant to seek relief via Motion to Recall the Mandate. State v. Whitfield , 256, 269, fn. 19.
In light of the foregoing, as to the sentence of death imposed against Mr. Lyons for the murder of Evelyn Sparks, Mr. Lyons is entitled to have that sentence set aside, and to have instead imposed by this Court a sentence of life imprisonment without probation or parole. State v. Whitfield , 270-271. This Court itself has already identified this case as warranting such relief. State v. Whitfield , 269, fn. 17.
Conclusion
WHEREFORE, in light of the foregoing, Mr. Lyons prays that this Honorable Court recall its mandate and order that the sentence of death for the murder of Evelyn Sparks be set aside, and in its stead, a sentence of life imprisonment without probation or parole be imposed.
Respectfully submitted
FREDERICK A. DUCHARDT, JR.
Mo.Bar Enrollment Number 28868
P.O. Box 349, 110 E. 6th St.
Kearney Mo. 64060
Phone: 816-628-9095
Fax: 816-635-5155
ATTORNEY FOR MR. LYONS
CERTIFICATE OF SERVICE
I do hereby certify that a copy of the foregoing was mailed to the following this 19thday of June, 2007
Stephen Hawke
Assistant Attorney General
P.O. Box 899
Jefferson City MO 65102
FREDERICK A. DUCHARDT, JR.
ORDER
WHEREAS, this Court's opinion in this case was filed on August 19, 1997; and
WHEREAS, the mandate affirming the judgment in all respects was issued on September 30, 1997; and
WHEREAS, the Supreme Court of the United States determined in Ring v. Arizona, 536 U.S. 584 (2002), that a jury must find every fact that the legislature requires be found before death may be imposed; and
WHEREAS, the jury made no such findings in this case as to count I regarding the murder of Evelyn Sparks; and
WHEREAS, this Court held in State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003), that the decision in Ring is to be applied retroactively;
NOW, THEREFORE, IT IS ORDERED that this Court's mandate of September 30, 1997, be and is hereby recalled, vacated and for naught held; and
IT IS FURTHER ORDERED that a new mandate issue forthwith setting aside the sentence of death as to count I regarding the murder of Evelyn Sparks and resentencing Andrew Lyons to life imprisonment without eligibility for probation, parole, or release except by act of the governor as to count I involving the death of Evelyn Sparks and affirming the judgment in all other respects.