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03/23/93 STATE MISSOURI v. MARIA ISA

March 23, 1993

STATE OF MISSOURI, RESPONDENT,
v.
MARIA ISA, APPELLANT



APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS. Honorable Charles A. Shaw, Judge

En Banc. Robertson, Jr.

The opinion of the court was delivered by: Robertson

The State indicted Maria Isa ("Isa"), charging her with one count of first degree murder. Section 565.020, RSMo 1986. A jury convicted Isa of first degree murder and recommended the death penalty. The trial court sentenced Isa to death. She now appeals her conviction and sentence. This Court has exclusive appellate jurisdiction where the death penalty is imposed. Mo. Const. art. V, § 3. We affirm Isa's first degree murder conviction and reverse her sentence of death. The case is remanded to the trial court for a new penalty-phase hearing and for sentencing.

I.

We view the facts in the light most favorable to the verdict. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc), cert. denied, 469 U.S. 873, 83 L. Ed. 2d 156, 105 S. Ct. 227 (1984).

Palestina Isa ("Tina") was born on December 3, 1972, the youngest daughter born to Zein and Maria Isa. Her three older sisters, Azizah, Fatima, and Soraia, had married and moved from their parents' home. Sixteen-year-old Tina lived with her parents at 3759 Delor in the City of St. Louis.

The Isa family joined diverse cultural and religious backgrounds. Zein Isa is a Palestinian and of the Islamic faith. Appellant is Brazilian and of the Catholic faith. Out of this unique home, Tina acquired the ability to speak fluently four different languages, Arabic, Portuguese, Spanish and English. Rigid cultural traditions, however, soon became a point of tension between Tina and her parents.

In 1989, Tina was a senior at Roosevelt High School. She had excelled as a student and played on the school's soccer and tennis teams. As Tina's school activities expanded and her social life flourished, her parents became concerned that she would escape their control. They began to monitor and limit her activities; they forbad Tina from attending her Junior American Studies class field trip to Washington, D.C., her junior prom, and a free college preparatory program at the University of Missouri-Columbia.

Much of the conflict between Tina and her parents centered around Tina's relationship with Cliff Walker, a young black man. Both Zein Isa and appellant strenuously objected to Tina's relationship with Mr. Walker because of his color. In spite of her parents' objections, however, Tina continued to see Mr. Walker. As a result, the disagreements between Tina and her parents escalated.

On October 13, 1989, appellant visited Roosevelt High School with the intention of withdrawing Tina from school. In a conversation with Tina's guidance counselor, Pamela Fournier, appellant explained that Tina was being withdrawn for "not obeying family rules" and to prevent Tina's further association with Mr. Walker. Ms. Fournier discussed with appellant the value of an education and Tina's potential for a college scholarship. Appellant agreed to delay Tina's withdrawal until after a meeting of appellant, Tina and Ms. Fournier, scheduled for the following Monday.

During the Monday conference, appellant remained hostile and belligerent. Appellant told Ms. Fournier that neither she nor her husband wanted Tina "going out with a black boy." Appellant further described Tina as a "tramp" and a "whore" who had gone against her family. Following the meeting, Isa did not withdraw Tina from school, as she had intended.

Near the end of October, 1989, Tina, unbeknownst to her parents, found employment at Wendy's Restaurant on the corner of Gravois and Grand. She told her parents of her employment by taping a note to the television on November 5, 1989, her first day of work. The note informed her parents that she would return at 11:30 p.m.

At some point prior to November 5, 1989, Zein Isa came under suspicion for espionage activities against the United States. With federal court approval, FBI agents placed surveillance microphones in the Isa home and began taping conversations there. The Isa's phone lines were also tapped. Much of the factual information that follows is the product of that surveillance.

When Tina returned home at 11:59 the evening of November 5, 1989, appellant asked her "where have you been, bitch?" Tina explained that she had been working at Wendy's. Both Zein Isa and appellant found Tina's answer unsatisfactory and an argument erupted.

Zein Isa confronted Tina regarding her relationship with Mr. Walker. Zein told his daughter that her behavior was shameful and purely "fornication." Appellant attacked Tina on her motivation for working. Appellant charged, "This life of yours is unacceptable! Do you understand? This life is unacceptable!"

Zein Isa: Listen to what I say to you. Until you reach 17, I am prepared to provide for you. Why? You don't do anything but eat, drink, and sleep. I swear! the money is not enough, and you have stolen from me. Why do you play this game now?

Maria Isa: Do you want to sleep here?

Tina:

Maria Isa: If you want to sleep here then you don't need any money.

Tina: Come on! Throw me out!

Maria Isa: Do you want to drink water from here?

Zein Isa: What about it? What do you want, Tina?

Tina: I say, nothing.

Zein Isa: So you are going to leave us. To go where?

Tina: Does it matter?

Maria Isa: Where is the key?

Tina: Of your house?

Maria Isa: Yes, of my house!

Tina: Are you throwing me out?

Maria Isa: Give me the key to my house.

Tina: Then, you don't want me to live here?

Maria Isa: Of my house here!

Tina: Okay, here is the key. Not this! This is the newspaper from the school. You're not going to touch it!

Maria Isa: I just want to see it!

Tina: Here it is! Roosevelt Roughriders.

Zein Isa: Here listen, my dear daughter, do you know that this is the last day. Tonight, you're going to die?

Tina: Huh?

Zein Isa: Do you know that you are going to die tonight?

Maria Isa: What do you have in this bag here? Whose shoes are these?

Tina: Why?

Maria Isa: I want to see what is in it. Are you going to forbid me from seeing what is inside? Whose shoes are these?

Tina: Mine.

Zein Isa: See you are touching her things. Just put it out the door.

Maria Isa: Where do you intend get with this, Tina?

Tina: I don't want to get anywhere!

Maria Isa: Why? You're not going to get anywhere.

Zein Isa: You want to wait until you're seventeen and then leave. Isn't it so?

Maria Isa: Tina, if you want to continue working, you don't sleep here!

Tina: In that case, I'll leave right now!

Maria Isa: You left earlier, and now you don't even have to sit here!

Tina:

Maria Isa: If you don't want to talk with me, then you don't belong to the family! Let me see! What do you have here?

Tina: My books, Mom! They're not yours! They belong to the school!

Conversation is interrupted by Tina's continuous screaming)

Zein Isa: Keep still, Tina!

Tina: Mother, please help me!

Maria Isa: Huh! What do you mean!

Tina: Help! Help!

Maria Isa: What help?!

Tina: (screams)

Maria Isa: Are you going to listen? Are you going to listen?

Tina: (screaming louder) Yes! Yes! Yes, I am. (starts coughing) No. Please!!

Maria Isa: Shut up!

Tina: No! No!

Zein Isa:

Tina: (crying)

Zein Isa: Die! Die quickly! Die quickly!

Tina: (Moans; her voice lowers)

Zein Isa: Clean her Clean her bottom!

Tina: (Screams louder)

Zein Isa: Quiet, little one! Die my daughter, die!

An autopsy performed on Tina revealed six puncture wounds on her left breast and several small prick wounds on her chest and neck. The tight cluster of these wounds indicated that Tina was not moving when stabbed. In her statement to police immediately following the murder, a blood-stained Maria Isa acknowledged having grabbed her daughter from behind the struggle. Tina also suffered a two-inch bruise on top of her head and deep scratches on her neck.

Hairs found in Tina's hand were consistent with hair found on the arms of the appellant. Numerous cuts on Tina's hands were consistent with injuries sustained in an effort to fend off a knife attack. Tina died from a knife wound through her breastbone and into her heart and a second fatal stab wound that entered her left lung. To inflict these wounds required great force.

The murderous act completed, appellant called for police and ambulance assistance. During this call the following conversation took place:

Maria Isa: Take your shirt off!

Zein Isa: Huh?

Maria Isa: Take this shirt off!

Zein Isa: Why? No! She was the one who wanted to kill her father! I got a knife and she took it away from me, you see! Kill her father?!

In the following minutes, Zein Isa and appellant made calls to several relatives telling each that Tina had attacked them with a knife and had been killed in the exchange. When the police arrived at the apartment, Tina's body lay prone on the living room floor with two knives lying near her head. Neither Zein nor appellant were visibly shaken or upset by the event. Both Zein and appellant made statements to the police recounting a story of how their daughter attacked them in an attempt to obtain five thousand dollars.

The jury found Isa guilty of first degree murder for the killing of her daughter, Tina, and recommended that Isa be put to death for her part in the murder. The trial court sentenced Isa to death.

II.

Isa raises 35 points of error. We consider the points raised in relation to the chronological order of trial.

A. Assignment of Judge

Isa's trial was originally assigned to Judge William Geary in Division 10, of the Circuit Court for the City of St. Louis. The State moved for a change of Judge. Rule 32.07. Judge Charles A. Shaw, Division 21, received the reassignment. Isa alleges error with this reassignment. She claims that (1) the record does not show that she received a copy of the State's motion and (2) the assigning Judge was without authority to assign this matter to Judge Shaw.

Isa raised this argument for the first time on appeal. We review it only for plain error. Rule 30.20; State v. Hunter, 840 S.W.2d 850, 859 (Mo. banc 1992).

Rule 32.07 provides the procedural mechanism for a change of Judge in a misdemeanor or felony action. Rule 32.07(e)(4) provides that a case may be reassigned "in accordance with local rules." Local Rule 67.10.1.7 of the Circuit Court of the City of St. Louis governs the assignment of cases following a valid motion for change of Judge under 32.07. Nothing in the record indicates that the circuit court deviated from the procedure set forth in Local Rule 67.10.1.7.

Plain error relief is appropriate only when the alleged error so substantially affects the rights of the defendant that a manifest inJustice or miscarriage of Justice results. Rule 29.12(b). The defendant bears the burden of showing that an alleged error has produced such a manifest inJustice. State v. Parkus, 753 S.W.2d 881, 888 (Mo. banc), cert. denied. 488 U.S. 900, 102 L. Ed. 2d 237, 109 S. Ct. 248 (1988). Mere allegations of error and prejudice will not suffice. See State v. Kilgore, 771 S.W.2d 57, 67 (Mo. banc), cert. denied. 493 U.S. 874, 107 L. Ed. 2d 164, 110 S. Ct. 211 (1989).

Reassignment of this case occurred nearly ten months prior to trial. Isa had substantial time to offer any objections she had to Judge Shaw; she failed to do so. Bare allegations of inconsequential and unchallenged procedural irregularities do not rise to manifest inJustice or plain error. The point is denied.

B. Pre-Trial Motions

Prior to trial, Isa filed several procedural motions and a motion challenging the admission of evidence. Of the six motions overruled by the court, Isa alleges error with regard to four. We address each claim of error independently.

1.

First, Isa contends that the trial court erred in overruling her motion to sever her trial from the trial of her husband, Zein.

Originally, the State indicted appellant and Zein Isa separately. The State, however, filed and the trial court sustained a motion to join the defendants for trial. Isa moved for severance. The trial court overruled the motion. Isa submits two grounds to support her claim: (a) the trial court's refusal to sever is contrary to the joint trial standard enunciated in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968); and (b) permitting a joint trial violated Rule 24.06 and Section 545.880.2, RSMo 1986.

a.

Bruton holds that a defendant is deprived of his rights under the Confrontation Clause of the Sixth Amendment when his codefendant's confession directly implicates him as a participant in the crime, is introduced at their joint trial, and the co-defendant does not testify. An instruction to the jury to consider the confession only against the co-defendant does not remedy the constitutional violation.

This case is factually different from Bruton. First, Zein Isa's out-of-court statement to police indicated that appellant had no part in Tina's stabbing. In fact, Zein confessed to sole responsibility for the fatal stabbing. Zein Isa's statement did not implicate Isa. It assisted her defense in that the confession exculpated her from involvement in the crime. Second, unlike Bruton, Zein Isa testified and was subject to cross-examination by appellant's counsel. She received her full rights under the Confrontation Clause.

For both of these reasons, Isa's reliance on Bruton is misplaced. The point is denied.

b.

Isa next argues that permitting the joint trial violated Rule 24.06 and Section 545.880.2, RSMo 1986. Rule 24.06 requires that defendants be tried separately only if a defendant files a written motion for severance and the court finds the probability of prejudice exists; or:

(1) The defendant is subject to assessment of punishment by the jury and the defendant shows a probability of prejudice would result from this fact if he is not tried separately; or

(2) There is, or may reasonably be expected to be material and substantial evidence not admissible against the defendant that would be admissible against other defendants if a separate trial is not ordered; or

(3) There is an out-of-court statement that is not admissible against the defendant that would be admissible against other defendants if a separate trial is ordered unless the court finds the out-of-court statement can be limited by eliminating any reference to the defendant; or

(4) A separate trial is necessary to a fair determination of whether the defendant is guilty.

Likewise, Section 545.880.2 requires the trial court to consider the "probability for prejudice" to appellant in a joint trial. Section 545.880.2(4) provides that the trial court "shall find" that the "probability for prejudice" exists if severance of the joint defendants is necessary to achieve a fair determination of guilt or innocence of any defendant.

Courts traditionally favor joint trials. Joint trials "play a vital role in the criminal Justice system," Richardson v. Marsh, 481 U.S. 200, 209, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987), and "serve the interests of Justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability -- advantages which sometimes operate to the defendant's benefit." Id. at 210. A motion to sever is appropriate only where there exists a serious risk of compromise of the defendant's rights or the jury's ability to make a reliable judgment about guilt or innocence.

Isa posits that a series of recorded conversations between Zein Isa, his daughters, and his sons-in-law incriminated Zein and thus were admissible solely against him. Appellant further maintains that the admission of these statements during the joint trial created an impermissibly prejudicial inference of Isa's own guilt. The prejudicial effect of this evidence, contends appellant, mandated severance of the joint trial under Rule 24.06 and Section 545.880.2.

The decision to sever a joint trial lies within the sound discretion of the trial court. State v. Mahurin, 799 S.W.2d 840, 843 (Mo. banc 1990), cert. denied, U.S. (1991). We will disturb that ruling only if there is an abuse of discretion resulting in prejudice.

Undoubtedly, the risk of prejudice to a defendant from a joint trial will vary with the facts in each case. In many instances, measures less drastic than severance will suffice to avoid the risk of prejudice. Id. at 211; State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc), cert. denied, 488 U.S. 975, 102 L. Ed. 2d 550, 109 S. Ct. 515 (1988); State v. Plaster, 813 S.W.2d 349, 353 (Mo. App. 1991).

The record demonstrates that the evidence offered of Zein Isa's conversations neither directly nor inferentially implicates appellant in the murder of their daughter. Zein Isa's conversations focus on his personal distaste for Tina's life-style and his own desire to end Tina's life. This evidence is not so complex that a juror cannot keep separate its admissibility against Zein Isa alone.

Aside from the obvious tendency of this evidence to focus blame away from Isa and solely on Zein Isa, the trial court gave a prophylactic instruction to the jury ordering them to consider these conversations only against Zein. The trial court, prior to the state's offer of evidence regarding Zein Isa's conversations, instructed:

Ladies and gentlemen of the jury, as you know, there are two defendants on trial here, Zein Isa and Maria Isa. Each defendant is entitled to have his or her case decided solely on the evidence which applies to him or her. Some of the evidence in this case is limited under the rules of evidence to one of the defendants and cannot be considered against the other. The tape you are about to hear may be considered by you only on the case against Zein Isa and not on the case against Maria Isa.

The trial Judge may expect that his limiting instructions will be followed. Francis v. Franklin, 471 U.S. 307, 325, 85 L. Ed. 2d 344, 105 S. Ct. 1965 n. 9 (1985); State v. Hunter, 586 S.W.2d 345 (Mo. banc 1979). There is no ...


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