State v. Whitfield

107 S.W.3d 253, 2003 Mo. LEXIS 105, 2003 WL 21386284

• Court: Supreme Court of Missouri
• Decided: June 17, 2003
• Docket: SC 77067
• Status: Published

Opinions

ON MOTION TO RECALL MANDATE

LAURA DENVIR STITH, Judge.

In 1994, a jury convicted Joseph Whitfield of first-degree murder, but could not agree on punishment during the penalty phase, voting 11 to 1 in favor of life imprisonment.¹ The judge then undertook the four-step process required by section 565.030.4² for determining punishment. He found the presence of statutory and non-statutory aggravating circumstances, determined these circumstances warranted death, considered whether there were mitigating circumstances and found they did not outweigh the circumstances in aggravation, and decided under all the circumstances to impose a death sentence. This Court affirmed the convictions and sentences and denied post-conviction relief. State v. Whitfield, 939 S.W.2d 361 (Mo. banc 1997), cert. denied, 522 U.S. 831, 118 S.Ct. 97, 139 L.Ed.2d 52 (1997).³

Last year, in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the United States Supreme Court held that the Sixth Amendment entitles “[cjapital defendants ... to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at 589, 122 S.Ct. 2428. Mr. Whitfield contends his right under the Sixth and Fourteenth Amendments, as set out in Ring, was violated because the judge rather than the jury made the factual determinations on which his eligibility for the death sentence was predicated. This Court agrees.

Section 565.030.4 requires that the trier of fact engage in a four-step process in determining whether a death sentence shall be imposed. As discussed below, the first three of these steps require factual findings be made in order to render the defendant eligible for the death penalty. Here, the jury deadlocked, and, as required by section 565.030.4, the judge rather than the jury made the requisite factual findings for imposition of a sentence of death. This violated Mr. Whitfield’s right to have a jury determine the facts rendering him eligible for death.

This Court therefore recalls its mandate affirming his conviction and applies Ring to invalidate his sentence of death because there is a conflict between this Court’s affirmance of a court-imposed death sentence on Mr. Whitfield’s direct appeal and the constitutional principles set out in Ring, under the test set forth in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Under section 565.040, the only possible sentence is life imprisonment. Accordingly, the Court’s mandate is recalled, the sentence of death is reversed, and this Court sets aside the sentence of death and resentences the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.

I. MISSOURI CAPITAL DEFENDANTS ARE ENTITLED TO HAVE A JURY DETERMINE THE FACTS RENDERING THEM ELIGIBLE FOR THE DEATH PENALTY UNDER SECTION 565.0304

A. Ring Entitles a Capital Defendant to a Jury Determination of the Facts on Which Eligibility for a Death Sentence is Predicated.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), decided three years after this Court affirmed Mr. Whitfield’s conviction and sentence, the United States Supreme Court held that the Sixth Amendment does not permit a defendant to be “expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Apprendi, 530 U.S. at 483, 120 S.Ct. 2348.

Numerous courts and commentators thereafter suggested that the principles underlying Apprendi were inconsistent with the principles underlying the Supreme Court’s decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that a judge could determine the aggravating facts necessary to impose the death penalty once a jury convicted defendant of first-degree murder. They were correct.

Two years later, the Supreme Court applied the principles underlying Apprendi to the capital sentencing setting. The Court reasoned that, “[cjapital defendants, no less than non-capital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at 589, 122 S.Ct. 2428.⁴ Further, it found that Arizona’s practice of labeling aggravating circumstances as sentencing factors rather than as elements of the offense of capital murder was a matter of form over substance and that, under Arizona’s statutory scheme, “Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense.’ ” Id. at 609, 122 S.Ct. 2428, quoting, Apprendi 530 U.S. at 494, n. 19, 120 S.Ct. 2348.

Applying these principles, the Supreme Court invalidated Arizona’s capital sentencing scheme because it permitted a judge, rather than a jury, to determine the presence of aggravating factors required by Arizona law for imposition of the death penalty following a jury adjudication of a defendant’s guilt of first-degree murder. In so holding, it extended to the capital sentencing setting Apprendi’s holding that “the Sixth Amendment does not permit a defendant to be ‘expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.’ ” Id. at 588-89, 120 S.Ct. 2348, quoting, Apprendi 530 U.S. at 483, 120 S.Ct. 2348.

The Supreme Court held that not just a statutory aggravator, but every fact that the legislature requires be found before death may be imposed must be found by the jury. And, in determining which factors fall within this rule, Ring cautioned that, “the dispositive question ... ‘is one not of form, but of effect.’ ” Id. at 602,122 S.Ct. 2428, quoting, Apprendi 530 U.S. at 494, 120 S.Ct. 2348. “If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it must be found by a jury beyond a reasonable doubt.” Id. at 602, 122 S.Ct. 2428.

Because Mr. Ring did not argue that Arizona’s sentencing scheme required the jury to make a factual finding as to mitigating factors, the Supreme Court declined to specifically address whether a jury was also required to determine whether mitigating factors were present that called for leniency. See Ring, 536 U.S. at 597, n. 4, 122 S.Ct. 2428. Instead, it set out the general principle that courts must use in applying Ring to determine whether a particular issue must be determined by the jury or can be determined by a judge, stating, “[cjapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Id. at 589,122 S.Ct. 2428.

On remand, applying these principles, the Supreme Court of Arizona rejected the contention that the requirements that mitigating circumstances be considered and weighed against aggravators were not factual predicates for imposition of the death penalty. See State v. Ring, 204 Ariz. 534, 65 P.3d 915, 942-43 (2003) (Ring II). It held, therefore, that, even if the presence of a statutory aggravator was conceded or not contested, resentencing would be required unless the court found that the failure of the jury to make these factual findings was harmless on the particular facts of the case. Id.

B. Under Section 565.0S0.Jp a Defendant is Eligible for the Death Penalty Only if the Jury Makes the Factual Determinations Set Out in Subdivisions 565.0304(1), (2), and (3).

The State and Mr. Whitfield agree that, under Ring, a jury must determine all facts on which the legislature has predicated imposition of the death penalty. They also agree that sections 565.020 and 565.030 set out the requirements for imposition of the death penalty in Missouri. Section 565.020.2 provides that the punishment for first-degree murder shall be either death or imprisonment for life without eligibility for probation or parole. Sec. 565.020.2. Section 565.030.2 requires that, in cases in which the state seeks the death penalty, the case shall be tried in two phases. In the first phase, the jury shall determine guilt. Sec. 565.030.2. Section 565.030.4 then provides that, “[i]f the trier ... finds the defendant guilty of murder in the first-degree, a second stage of the trial shall proceed at which the only issue shall be the punishment to be assessed and declared.” Sec. 565.030.4.

In the second, or “penalty” phase, the jury is required to be instructed to follow the four-step process set out in section 565.030.4:

The trier shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor:

(1) If the trier does not find beyond a reasonable doubt at least one of the statutory aggravating circumstances set out in subsection 2 of section 565.032; or

(2) If the trier does not find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating circumstances listed in subsection 2 of section 565.032, warrants imposing the death sentence; or

(3) If the trier concludes that there is evidence in mitigation of punishment, including but not limited to evidence supporting the statutory mitigating circumstances listed in subsection 3 of section 565.032, which is sufficient to outweigh the evidence in aggravation of punishment found by the trier; or

(4) If the trier decides under all of the circumstances not to assess and declare the punishment at death.

Id. Section 565.030.4 on its face requires that steps 1, 2, 3, and 4 be determined against defendant before a death sentence can be imposed. Id; see Whitfield, 837 S.W.2d 503, 515 (Mo. banc 1992).

Step 1. Step 1 requires the trier of fact to find the presence of one or more statutory aggravating factors set out in section 565.032.2. Both the State and Mr. Whitfield agree that this is a fact that normally must be found by the jury in order to impose a sentence of death.

The State contends that steps 2, 3, and 4 merely call for the jury to give its subjective opinion as to whether the death penalty is appropriate, however, not to make findings as to whether the factual predicates for imposing the death penalty are present. It urges that the principles set out in Ring are not offended even if the judge rather than the jury determines those three steps. This Court disagrees.

Step 2. Step 2 requires the trier of fact (whether jury or judge) to find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating factors, warrants imposition of the death penalty. As noted, the State argues that this step merely calls for a subjective opinion by the trier of fact, not a finding. But, the State fails to note that this Court rejected this very argument in its opinion on Mr. Whitfield’s appeal of his initial conviction, in which it remanded for the new trial at issue here. In that decision, this Court held that step 2 requires a “finding of fact by the jury, not a discretionary decision.” Whitfield, 837 S.W.2d at 515. This holding is supported by the plain language of the statute. In order to fulfill its duty, the trier of fact is required to make a case-by-case factual determination based on all the aggravating facts the trier of fact finds are present in the case. This is necessarily a determination to be made on the facts of each case. Accordingly, under Ring, it is not permissible for a judge to make this factual determination. The jury is required to determine whether the statutory and other aggravators shown by the evidence warrants the imposition of death.⁵

Step 3. In step 3 the jury is required to determine whether the evidence in mitigation outweighs the evidence in aggravation found in steps 1 and 2. If it does, the defendant is not eligible for death, and the jury must return a sentence of life imprisonment. While the State once more argues that this merely calls for the jury to offer its subjective and discretionary opinion rather than to make a factual finding, this Court again disagrees.

The analysis undertaken in three recent decisions by other state courts of last resort, interpreting similar statutes, is instructive. In Woldt v. People, 64 P.3d 256 (Colo.2003), the Supreme Court of Colorado reversed the death sentences of two capital defendants after determining that Colorado’s three-judge capital sentencing statute was unconstitutional in light of Ring. Colorado’s death penalty statute, like Missouri’s, requires the fact-finder to complete a four-step process before death may be imposed. First, at least one statutory aggravator must be found. Second, whether mitigating factors exist must be determined. Third, mitigating factors must not outweigh the aggravating factors. Finally, whether death is the appropriate punishment is considered.

The Supreme Court of Colorado described the first three of these four steps as findings of fact that are “prerequisites to a finding by the three-judge panel that a defendant was eligible for death.” Woldt, 64 P.3d at 265. It noted that states are sometimes grouped into “weighing states” that require the jury to weigh the aggravating circumstances against those in mitigation in arriving at their determination of punishment, and “non-weighing states.” It explained that, while in steps 1, 2, and 3 the jury is permitted to consider and weigh aggravators and mitigators, and to that extent Colorado’s process is like that used in weighing states, Colorado is a non-weighing state in that, in step 4, in which the jury decides whether to impose death or to give a life sentence, the jury is permitted to consider all of the evidence without being required to give special significance to the weight of statutory aggra-vators or mitigators. Id. at 263-64. This last step thus “affords the sentencing body unlimited discretion to sentence the defendant to life imprisonment instead of death.” Id. at 265. Because Colorado’s death penalty statute required a three-judge panel to make the first three of these findings, the statute was declared unconstitutional. Id. at 266-67.

Similarly, in Johnson v. State, 59 P.3d 450 (Nev.2002), Nevada’s Supreme Court considered the constitutionality of its capital sentencing scheme in light of Ring. Its sentencing scheme provides for a three-judge panel to determine punishment if the jury is unable to do so. Johnson noted that Nevada “statutory law requires two distinct findings to render a defendant death-eligible: ‘the jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.’ ” Johnson, 59 P.3d at 460 (citation omitted).

Johnson determined the requisite statutory finding that the mitigating circumstances are not sufficient to outweigh the aggravating circumstances is at least “in part a factual determination, not merely discretionary weighing.” Id. at 460. It held that, as a result, the rule announced in Ring required a jury rather than, a judge to determine the mitigating as well as the aggravating factor issues. Id.

Finally, on remand from the United States Supreme Court, the Supreme Court of Arizona rejected the state’s contention that the requirement of Arizona law — that the court weigh mitigating circumstances against aggravating circumstances — did not require a factual determination, stating:

In both the superseded and current capital sentencing schemes, the legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggrava-tors, call for leniency. Neither a judge, under the superseded statutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. A.R.S. [sections] 13-703.E (Supp.2002) and 13-703.F (Supp.2001). The process involved in determining whether mitigating factors prohibit imposing the death penalty plays an important part in Arizona’s capital sentencing scheme.

Ring II, 65 P.3d at 943 (emphasis added). The Court continued:

We will not speculate about how the State’s proposal [to allow the judge to make these findings] would impact this essential process. Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 1451, 108 L.Ed.2d 725 (1990) (‘In some situations, a state appellate court may conclude that peculiarities in a case make appellate ... harmless error analysis extremely speculative or impossible.’); see also Johnson v. Nevada, 59 P.3d 450 (Nev.2002) (as applied to Nevada law, Ring ... requires [a] jury to weigh mitigating and aggravating factors under Nevada’s statute requiring the fact-finder to further find whether mitigating circumstances are sufficient to outweigh the aggravating circumstances).

Id. Accordingly, the Court held that, even were the presence of a statutory aggravator conceded or not contested, resentenc-ing would be required unless the court found that the failure of the jury to make these factual findings was harmless on the particular facts of the case. Id. This was a necessary result of applying Ring’s holding that “[cjapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at 589, 122 S.Ct. 2428.

Missouri’s steps 1, 2, and 3 are the equivalent of the first three factual determinations required under Colorado’s death penalty statute, so that, as in Colorado, the jury is told to find whether there are mitigating and aggravating circumstances and to weigh them to decide whether the defendant is eligible for the death penalty. These three steps are also similar to the aggravating and mitigating circumstance findings required under Nevada and Arizona law. As in those states, these three steps require factual findings that are prerequisites to the trier of fact’s determination that a defendant is death-eligible.

Step 4. Finally, in step 4 of section 565.030.4, the trier of fact is instructed that it must assess and declare the punishment at life imprisonment if it decides under all of the circumstances not to assess and declare the punishment at death. As under Colorado’s statute, it is not until this fourth step that the trier of fact is given discretion to make the final determination whether to give a life sentence even if he or she has already found that the aggravators and mitigators would qualify defendant for imposition of the death penalty. As in Colorado, Missouri is considered a non-weighing state because of the discretion given to the jury at this point to impose a life sentence without regard to the weight it gave to aggravators and miti-gators it found. See Whitfield, 837 S.W.2d at 515 (“The jury does not make any discretionary decision in imposing the death penalty. On the other hand, the jury is given the constitutionally-required unlimited discretion to exercise mercy and reduce the sentence to life. [Sec.] 565.030.4(4)”).

C. The Trial Judge Erred in Himself Making the Factual Findings that are a Predicate to Imposition of Missouri’s Death Penalty.

Turning to how these four steps were carried out here, the record reveals that Mr. Whitfield’s jury returned a verdict stating that it could not agree on punishment. The record reveals that the jury was split 11 to 1 in favor of life imprisonment. When a jury returns a verdict stating the jurors cannot decide upon punishment, section 565.030.4 requires the judge to decide punishment and provides that “[t]he court shall follow the same procedure as set out in this section [steps 1-4] whenever it is required to determine punishment for murder in the first degree.” Sec. 565.030.4. The statute required the judge to independently go through the four statutory steps and make his or her own determination whether the death penalty or life imprisonment should be imposed.

As required by section 565.030.4, once the jury deadlocked on Mr. Whitfield’s punishment, the trial judge independently went through each of the four statutory steps, independently determined each fact against Mr. Whitfield, and imposed a death sentence. As a result, the death sentence imposed on Mr. Whitfield was not based on a jury finding of any fact, but rather was entirely based on the judge’s findings that all four steps favored imposition of the death penalty. See sec. 565.030.4. This process clearly violated the requirement of Ring that the jury rather than the judge determine the facts on which the death penalty is based.⁶

D. The Error Was Not Harmless.

Violation of Ring may not in itself automatically invalidate imposition of the death penalty. For, while Ring requires that a jury rather than a judge make the factual findings necessary for imposition of a death sentence, it implies that a court may find that the failure to require jury findings was harmless error. Ring, 536 U.S. at 609, n. 7, 122 S.Ct. 2428. We therefore turn to that issue.

In determining whether federal constitutional error may be considered harmless, Missouri has followed the test set out by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See, e.g. State v. Driscoll, 55 S.W.3d 350, 356 (Mo. banc 2001). “[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. 824. Under this test, the “beneficiary of a constitutional error,” the State, must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id.

Step 1. In some other case, in which the facts on which the jury based its finding of statutory aggravators were not prior convictions, a harmless error analysis would have to be undertaken in step 1 based on the above principles. On the facts of this case, however, it was not error, harmless or otherwise, for the judge to find the presence of statutory aggrava-tors under step 1, because here, the statutory aggravators submitted were Mr. Whitfield’s previous convictions for second-degree murder and manslaughter. Ring and Apprendi do not overrule prior Supreme Court case law holding that the presence of prior convictions, which are a matter of court record, may be found by the judge rather than by the jury without violating the Sixth and Fourteenth Amendments. That law thus governs here.⁷

Step 2. Whether the trial court’s finding of step 2 was harmless error beyond a reasonable doubt is a much more difficult issue for the State. Applying step 2, and in accordance with MAI-CR3d 313.42, Instruction No. 24 informed the jury that if it found a statutory aggravator, then it would be its “duty to decide whether the aggravating circumstances are sufficient to warrant the imposition of death as a punishment of defendant.”

Here, the jury was instructed that it could consider all the evidence, including statutory and non-statutory aggravators, in making this decision and that if the jury did “not unanimously find from the evidence beyond a reasonable doubt that those aggravating circumstances you have found warrant the imposition of death as defendant’s punishment, you must return a verdict fixing his punishment at imprisonment for life.... ” Yet, the jury did not return a life sentence but returned a verdict stating that the jurors could not unanimously agree on punishment. The judge then reconsidered the four statutory steps, found them against Mr. Whitfield, and sentenced him to death.

In deciding whether the error in permitting the judge rather than the jury to make the second step determination was harmless beyond a reasonable doubt, the Court is cognizant of the fact that normally a jury is presumed to follow the jury instructions. See e.g. State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999). Here, the jury was instructed to return a verdict of life imprisonment if it could not agree on step 2. The State argues this Court should presume that the jury followed this instruction even though the issue here is the imposition of the death penalty, citing a case applying such a presumption in a death penalty case where the jury could not agree on punishment and the issue of punishment fell to the judge, State v. Smith, 944 S.W.2d 901, 919-920 (Mo. banc 1997), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997). Smith is distinguishable, however. It permitted a presumption that the jury found the presence of an aggravating factor under step 1. Whether such factors existed was relatively straightforward. Smith did not address whether such a presumption could be made as to the findings required in steps 2 or 3.

More importantly, Smith was decided prior to Ring’s holding that the jury must make each factual finding necessary for imposition of a death sentence. Smith did not address whether a constitutionally-mandated factual finding can ever be presumed to have been made, or whether an express finding is required in those circumstances. And, tellingly, it found a presumption proper as to the findings required in step 1 under a standard of review that placed the burden of proof on defendant to prove prejudicial error. Smith, 944 S.W.2d at 919-20.

Here, however, because the judgment was entered based on the judge’s findings of fact rather than those of the jury, Ring was violated, and the burden shifted to the State to show the Ring error was harmless beyond a reasonable doubt. A presumption is simply inadequate to meet this high standard, and no affirmative proof sufficient to meet this standard has been offered by the State, as the record is silent in regard to the jury’s findings.

Tellingly, perhaps for this reason, the statute does not permit a trial judge to presume, based on the jury’s deadlock, that the jury has decided any particular steps against defendant. Rather, the judge must go through each of the four steps and independently make his or her own factual determination as to each step, not merely steps 3 and 4.

Step 3. Even were there a basis for this Court to hold, based on the jury instructions and verdict, that it can be presumed the jury unanimously found against defendant under step 2, and that such a presumption constituted proof beyond a reasonable doubt of harmless error, no similar determination, much less presumption, can be made as to step 3.

In regard to step 3, the jury was instructed that if it found that aggravators warranting the imposition of death were present, “each of you must then determine whether one or more mitigating circumstances exist which outweigh the aggravating circumstance or circumstances so found to exist.” The jury was informed that if all of the jurors agreed that one or more mitigators were present that were sufficient to outweigh the factors in aggravation, then it must return a verdict of life imprisonment.

Unlike for step 2, however, the jury was not told in regard to step 3 that it had to return a verdict of life imprisonment if it could not unanimously agree whether the mitigating facts outweighed the aggravating facts. Sec. 565.030.4; see also MAI-CR3d 313.48; Thompson, 85 S.W.3d at 639. Under the instruction, if even one juror, but not all, determined “there is evidence in mitigation of punishment ... which is sufficient to outweigh the evidence in aggravation of punishment ...,” the jurors would be unable to agree on punishment and, under the instructions, the jury would be deadlocked and would return a verdict form so stating.

Here, the jury returned a verdict stating .that it was unable to agree on punishment. This Court, and any court, can only act on the record, and the record does not show that the jury deadlocked after rather than before it made the requisite finding under step 3.⁸

In sum, Mr. Whitfield’s right under the Sixth and Fourteenth Amendments to a jury determination of the facts rendering him eligible for the death penalty was violated, as his death sentence was entered not based on a jury finding of any fact, but rather entirely on the judge’s findings. Because the record does not contain any basis for the Court to conclude the jury made the requisite determinations in steps I, 2, and 3 against Mr. Whitfield before deadlocking, the State is unable to meet its burden of showing that this constitutional error was harmless beyond a reasonable doubt.⁹

II. RETROACTIVE APPLICATION OF RING TO DEATH PENALTY CASES

The State argues that, even if Mr. Whitfield’s right under the Sixth and Fourteenth Amendments, as recognized in Ring, was violated because the judge made the factual findings supporting a sentence of death, Ring cannot be applied to Mr. Whitfield’s sentence, and this Court’s mandate affirming that sentence should not be recalled.

While this Court has never fully delineated the scope of an appellate court’s power to recall its mandate, it is well-established that, although an appellate court divests itself of jurisdiction of a cause when the court transmits its mandate, jurisdiction may be reacquired by means of “ ‘the judicial power to recall a mandate for certain purposes.’ ” State v. Thompson, 659 S.W.2d 766, 768 (Mo. banc 1983), quoting, Reimers v. Frank B. Connet Lumber Co., 273 S.W.2d 348, 349 (Mo.1954). Thus, “our courts have properly recognized that a mandate may be recalled in order to remedy a deprivation of the federal constitutional rights of a criminal defendant.” Thompson, 659 S.W.2d at 768-769. Most commonly, this rule is applied to recall a mandate when defendant shows that appellate counsel was ineffective. This places the case in the procedural posture it was in at the time of the original appeal, and effective appellate counsel can raise the issues not properly raised on the initial appeal. See id.10

As Thompson noted, however, another instance in which a mandate will be recalled is “when the decision of a lower appellate court directly conflicts with a decision of the United States Supreme Court upholding the rights of the accused.” Id., citing, State v. McReynolds, 581 S.W.2d 465 (Mo.App.1979); State v. Nevels, 581 S.W.2d 138 (Mo.App.1979). Cf. State v. Teter, 747 S.W.2d 307, 311 (Mo.App. W.D.1988) (overruling motion to recall mandate where the motion failed to demonstrate that “the decision as rendered abridges any constitutional right of a criminal defendant as declared by the United States Supreme Court”).

McReynolds and Nevels are particularly illustrative of a court’s power to recall its mandate when the mandate abridges constitutional rights that have been recognized by the United States Supreme Court. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the United States Supreme Court held that the systematic exclusion of women in a way that resulted in jury venires averaging less than 15% females violated the Constitution’s fair cross-section requirement. Duren, 439 U.S. at 360, 99 S.Ct. 664. In both McReynolds and Nevels, the court of appeals recalled its mandates affirming defendants’ convictions in trials in which voir dire had proceeded in a way not permitted under Duren, after the Supreme Court held in Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), that Duren was retroactive.

While the State recognizes that Thompson allows this Court to recall its mandate if its prior decision conflicts with a United States Supreme Court decision upholding the rights of the accused, the State denies that such a conflict exists, arguing that Ring does not apply to cases such as this one, that have become final. Indeed, the State goes so far as to argue that a decision announcing a new procedural right of the accused can never be applied to cases on collateral review, asserting:

Since the [Missouri] Supreme Court decision in Thompson, the [United States] Supreme Court’s jurisprudence on retroactivity has been greatly simplified by its decision in Griffith v. Kentucky, 479 U.S. 413 [314, 107 S.Ct. 708, 93 L.Ed.2d 649] (1987). In Griffith, the Supreme Court held that a new rule for the conduct for criminal prosecutions is to be applied retroactively only to cases, state or federal, pending on direct review or not yet final. Id. at 328 [107 S.Ct. 708]. Since appellant’s appeal was not pending on direct review and it was final in June 2002, Ring does not apply retroactively to appellant’s case.

The State’s argument too narrowly construes both the law applicable in federal courts governing retroactive application of newly stated federal procedural rules and this Court’s duty and authority to apply federal constitutional law retroactively.

As to the first concern, Griffith did not set a limit, or ceiling, on when new procedural rules will be applied to other cases, but rather a floor. It set out when new procedural rules must be applied to other cases, stating, “a new rule for conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final-” Griffith, 479 U.S. at 328, 107 S.Ct. 708 (emphasis added). Griffith at no point said that a state cannot apply new criminal procedural rules to cases on collateral review — indeed, that issue was not before it, as Griffith was a direct appeal.

After Griffith, the test for when a new constitutional procedural right would be applied to cases on collateral review at first continued to be the three-part analysis developed by the United States Supreme Court in two cases: Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The Linkletter-Stovall analysis requires a court to evaluate three factors when determining whether retroactive application should be given to a new constitutional standard. Those factors are:

(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

Stovall, 388 U.S. at 297, 87 S.Ct. 1967. The three-part test set forth in these cases is the analysis that this Court historically has applied in determining whether a decision should be applied retroactively. See e.g. Spidle v. State, 446 S.W.2d 793 (Mo.1969); State v. Ussery, 452 S.W.2d 146 (Mo.1970); McCulley v. State, 486 S.W.2d 419 (Mo.1972).

Two years after Griffith, the United States Supreme Court did adopt a new test for determining when federal courts will apply new constitutional rules to cases subject to federal habeas review. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Under Teague, federal courts may not apply a new constitutional rule retroactively unless the rule is a matter of substantive law or, if procedural, it falls within one of two exceptions: (1) it places “certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe” ¹¹ — for instance, proscribing the death penalty for those who were mentally retarded at the time of their crime, or (2) it establishes procedures that “implicate the fundamental fairness of the trial,”¹² “without which the likelihood of an accurate conviction is seriously diminished.” Id. at 313,109 S.Ct. 1060.

Teague narrowed the situations in which a federal court will apply a new procedural rule retroactively to cases on collateral review, setting forth a generally applicable test rather than permitting federal courts to continue to make a case-by-ease determination based on the Linkletter-Stovall factors. There are numerous reasons it adopted this new rule. As the Supreme Court of Nevada noted in Colwell v. State, 59 P.3d 463 (Nev.2002):

In Teague, the Supreme Court, instead of focusing on the purpose and impact of a new constitutional rule, looked to the function of federal habeas review, which is to ensure that state courts conscientiously follow federal constitutional standards. The Court determined that this function is met by testing state convictions against the constitutional law recognized at the time of trial and direct appellate review, ... Therefore, once a conviction has become final, federal ha-beas courts should generally not interfere with the state courts by applying new rules retroactively.

Id. at 470.

As Colwell also noted, however, “Teague is not controlling on this court, other than in the minimum constitutional protections established by its two exceptions.” Id. This follows from the fact “[s]tates are free to provide greater protections in their criminal justice system than the Federal Constitution requires.” California v. Ramos, 463 U.S. 992, 1014, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). For this reason, “[t]he Supreme Court has recognized that states may apply new constitutional standards ‘in a broader range of cases than is required’ by the Court’s decision not to apply the standards retroactively.” Colwell, 59 P.3d at 470-71, quoting, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); see also State v. Fair, 263 Or. 383, 502 P.2d 1150, 1152 (1972) (“[W]e are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires”).

It is up to each state to determine whether to apply the rale set out in Teag-ue, to continue to apply the rule set out in Linkletter-Stovall, or to apply yet some other rule appropriate for determining ret-roactivity of a new constitutional rule to cases on collateral review. So long as the state’s test is not narrower than that set forth in Teague, it will pass constitutional muster.

While this Court has on occasion cited federal cases dealing with retroactivity that in turn relied on Teague,¹³ this Court has never been presented with a case requiring it to decide between the Linklet-ter-Stovall and Teague tests. Neither has the State asked us to adopt the Teague test, nor even cited Teague to us in its brief. While Missouri shares many of the policy concerns Teague discusses concerning the finality of convictions, these concerns are well protected by the three-factor test set out in Linkletter-Stovall and traditionally applied by this Court. Further, the latter test permits this Court to consider the particular facts and legal issues relevant to the specific issue before the Court — for instance, here, to consider that the right asserted is the fundamental right to trial by jury and that the stake is of the highest magnitude — the defendant’s life.¹⁴

Finally, this case involves a motion to recall mandate. As discussed above, Missouri has traditionally recognized that a motion to recall mandate may be used to obtain relief from convictions and sentences that are inconsistent with federal constitutional rules. Thompson, 659 S.W.2d at 768.

For these reasons, as a matter of state law, this Court chooses not to adopt the Teague analysis but instead chooses to continue applying the Linkletter-Stovall approach to the issue of the retroactivity of Ring, an approach that comports better with Missouri’s legal tradition.¹⁵ Applying the analysis set out in Linkletter-Stovall here, this Court must consider (1) the purpose to be served by the new rule, (2) the extent of reliance by law enforcement on the old rule, and (3) the effect on the administration of justice of retroactive application of the new standards.¹⁶

The purpose to be served by the rule set out in Ring is to ensure a jury of defendant’s peers finds each of the factual elements necessary to his conviction and sentence of death. The Supreme Court and this Court have both held that the right to trial by jury is a fundamental right in serious criminal prosecutions. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Spidle v. State, 446 S.W.2d 793, 794-95 (Mo.1969). In a case not involving the death penalty, the Supreme Court held that this was not a sufficient basis in itself to require retroactive application of the rule requiring a jury trial in such cases. DeStefano v. Woods, 392 U.S. 631, 633-34, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). It went on to consider the impact of its new rule on the administration of justice and the extent of reliance on the old rule and determined that the effect was so great that the new rule would not be applied retroactively. Id.

By contrast, here, the second and third factors clearly favor retroactivity. Unlike new constitutional rules dealing with Fourth Amendment violations, the rule at issue here will not invalidate any searches or preclude the admission of any evidence. And, unlike in states such as Arizona in which the statutes required judges to determine whether to impose the death penalty, in Missouri juries have always made the decision whether to impose the death penalty except in those few cases in which the jury was unable to reach a verdict. Moreover, under Griffith, Ring must be applied to all future death penalty cases and to those not yet final or still on direct appeal.

Thus, only those few Missouri death penalty cases that are no longer on direct appeal and in which the jury was unable to reach a verdict and the judge made the required factual determinations and imposed the death penalty will be affected by the retroactive application of Ring. As a result, the effect of application of Ring to cases on collateral review will not cause dislocation of the judicial or prosecutorial system. This Court’s preliminary review of its records has identified only five potential such cases.¹⁷

Even in those five cases, the effect on the administration of justice of retroactive application of Ring will be minimal, as is evident from application of the new rule to the instant case. Although the sentence imposed by the trial court is reversed, no new guilt or penalty phase trial need be held.¹⁸ This is because section 565.080.4, for the reasons discussed above, does not permit the death penalty to be imposed unless the fact finder finds the first three factors set out in that subsection against defendant, and as noted, the record only shows that the judge made these findings. Under the principles set out in Ring, which apply retroactively to Mr. Whitfield on this motion to recall mandate, the court below violated his constitutional right in making the requisite findings itself and sentencing him to death. The only option was to impose a life sentence.¹⁹

The State disagrees. It argues that, even if Ring applies retroactively, the remedy is to remand for a new penalty phase trial, not to impose a sentence of life imprisonment. In support, the State notes that on remand of Ring itself the Arizona Supreme Court held that new penalty phase trials are permissible. The State suggests that there is no reason why the result should be different under Missouri law. This argument ignores the fundamental distinction between the death penalty processes in Missouri and in Arizona. In Arizona, once a jury determined guilt, a judge determined punishment. Therefore, the defendant in Ring and in other Arizona death penalty cases never had the opportunity to have a jury consider penalty phase evidence and determine whether to impose a life sentence or death. It is therefore quite appropriate that the remedy the Arizona courts have ordered is that such a trial be held.

In Missouri, by contrast, Mr. Whitfield and other defendants have always been entitled to jury sentencing under section 565.030.4. As set out in detail above, the jury must undertake four steps in determining defendant’s sentence, the first three of which require factual findings. If the jury is unable to find each such fact favors death, then it must impose a life sentence. Here, the record fails to show that the jury made these findmgs, but does affirmatively show that the judge entered a judgment of death based on his own findmgs rather than those of the jury. As stated, under Ring and Missouri law, this was error that was not harmless. Therefore, the judge’s only option was to impose a sentence of life.

The separate opinion of Judge Price suggests that this is not the case, and that, at least until Missouri’s jury instructions require jurors to specify at what point they have deadlocked, by making separate written findmgs as to each step set out in section 565.030.4, the remedy will be to order a new trial and give the State a second opportunity to convince a different jury to find the facts necessary for imposition of the death penalty. But, Missouri’s statutes do not provide for this second bite at the apple.²⁰

The separate opinion seems to assume that the judgment is based on the jury’s factual findings, and the issue is what presumptions can be indulged in about at what point the jury deadlocked. But, section 565.030.4 provides that a defendant shall be sentenced to life imprisonment unless the jury finds steps 1, 2, 3, and 4 against him or her. It also provides that, when the jury deadlocks, the jury’s findings simply disappear from the case and the court is to make its own independent findings. That is what occurred here. Thus, any presumptions as to what the jury may have found are simply irrelevant. Here, the judgment of death, based on the court’s findings, constituted constitutional error. For the reasons set out above, that error was not harmless beyond a reasonable doubt.²¹ Therefore, had this case been tried after Ring, the proper course of action for the judge to follow would have been to sentence defendant to life imprisonment. The fact that the applicability of Ring was not determined until later does not change the remedy in the present case. It is still to enter the judgment the trial court should have entered — a sentence of life imprisonment without eligibility for probation or parole.²²

This result is anticipated, and required, by section 565.040.2, which provides in pertinent part:

In the event that any death sentence imposed pursuant to this chapter is held to be unconstitutional, the trial court which previously sentenced the defendant to death shall cause the defendant to be brought before the court and shall sentence the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the governor....

Sec. 565.040.2 (emphasis added). Because the imposition of Mr. Whitfield’s death sentence has been determined to be in violation of his right under the Sixth and Fourteenth Amendments to a jury determination of the facts rendering him eligible for death, section 565.040.2 clearly applies. It expressly states that a defendant whose sentence is vacated on constitutional grounds shall be resentenced to life in prison. It does not, as the separate opinion suggests, state that a defendant shall be sentenced to life imprisonment only if his death sentence is held unconstitutional on the basis that the defendant was never really eligible for the death penalty in the first place, such as defendants who are mentally retarded or as to whom no statutory aggravator applies, and that defendants whose sentences are overturned on procedural grounds shall receive new trials. Rather, it states that “[i]n the event that any death sentence imposed pursuant to this chapter is held to be unconstitutional, the trial court ... shall sentence the defendant to life imprisonment.” Id. (emphasis added).

Mr. Whitfield’s death sentence, imposed pursuant to chapter 565, is herein held to be unconstitutional because it violates his right to be sentenced on determinations made by a jury.²³ Section 565.040.2 states that in the event that a death sentence imposed pursuant to chapter 565 is held to be .unconstitutional, the defendant shall be sentenced to life imprisonment. Mr. Whitfield accordingly is entitled to be re-sentenced to a term of life imprisonment without eligibility for probation, parole, or release except by act of the governor.

III. CONCLUSION

For the foregoing reasons, this Court recalls its mandate in Whitfield, 939 S.W.2d 361, sets aside Mr. Whitfield’s sentence of death, and pursuant to section 565.040.2, Rule 84.14, and this Court’s authority under section 565.035.5(2), sets aside the sentence of death and resen-tences defendant to life imprisonment without eligibility for probation, parole, or release except by act of the governor. In all other respects, the judgment is affirmed as provided in this Court’s opinion of January 21,1997.

WHITE, WOLFF and TEITELMAN, JJ., concur. PRICE, J., concurs in part and dissents in part in separate opinion filed. BENTON, J., concurs in opinion of PRICE, J. LIMBAUGH, C.J., concurs in part in opinion of PRICE, J.

LIMBAUGH, C.J., dissents in separate opinion filed.

1 . The jury also found Mr. Whitfield guilty of armed criminal action for which he received a life sentence.

2 . All statutory references are to RSMo 1994 unless otherwise indicated.

3 .The facts underlying Mr. Whitfield’s crimes and convictions are set out in detail in this Court’s prior opinion and will not be repeated here.

4 . Ring thus overruled Walton.

5 . In 2001, when the legislature revised section 565.030 to prohibit the execution of the mentally retarded, it also eliminated step 2 as a required separate finding. Sec. 565.030, RSMo Supp.2002.

6 . Judge Price's separate opinion ignores the fact that this constituted constitutional error when the opinion suggests that Mr. Whitfield has not met his burden of proving that constitutional error occurred.

7 . See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ("Other than the fact of a prior conviction, any fact that increases the penally for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis provided); Ring, 536 U.S. at 597, n. 4, 122 S.Ct. 2428 ("Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstances related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence.”).

8 . In regard to step 4, the jury was instructed that it must return a verdict of life imprisonment if it unanimously decided under all of the circumstances not to assess and declare the punishment at death. It was not, however told to return a life verdict if it could not unanimously agree on a death sentence, but rather was instructed to return a deadlocked verdict in such circumstance.

9 . The confusion that the complex death penalty submission can cause even for a trial judge, much less a jury, is evident from State v. Thompson, 85 S.W.3d 635 (Mo. banc 2002). In Thompson, the jury returned verdicts for life imprisonment on each of defendant’s two counts of first-degree murder. The court then polled the jury, asking each juror, “Is that your verdict?” When all but one stated that it was not his or her verdict, answering “no,” the court refused to accept the life verdicts and ordered the jury to return for further deliberations. Ultimately, the jury deadlocked and sentencing passed to the court, which imposed two death sentences. Because the trial court ordered the jurors to return for further deliberations after they returned verdicts for life imprisonment without first asking the jurors any further questions in an attempt to clarify their intent or ascertain at what point the jurors may have lacked unanimity, this Court reversed the sentences of death and remanded for a new sentencing hearing. Thompson, 85 S.W.3d at 640-41. While here, unlike in Thompson, the jury did not first return a life sentence, it did divide 11 to 1 in favor of life imprisonment rather than death.

10 . Such claims now must be raised by motion under Rule 29.15 or Rule 24.035 rather than by motion, to recall mandate.

11 . Teague, 489 U.S. at 311, 109 S.Ct. 1060.

12 . Id. at 312, 109 S.Ct. 1060.

13 . See e.g. State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 520 (Mo. banc 2001), citing, Dukes v. United States, 255 F.3d 912, 913 (8th Cir.2001) (recognizing that Apprendi presents a new rule of constitutional law that is not of "watershed” magnitude and, consequently, will not be applied on collateral review in federal courts).

14 . In Teague, the United States Supreme Court reserved the question whether the new test it adopted would be applicable to decisions involving the death penalty. Teague, 489 U.S. at 314, n. 2, 109 S.Ct. 1060. Ultimately, the Supreme Court determined to apply the rule in death penalty cases also, Penry v. Lynaugh, 492 U.S. 302, 313-14, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), but the fact that it did so in a separate decision constituted a recognition that, by its very nature, death is different.

15 . While Teague's restrictive federal approach to retroactivity may effect a "proper allocation of responsibility between the state and federal courts in the area of constitutional criminal procedure” and eliminate the "perceived encroachment of federal habeas on state courts,” Mary C. Hutton, Retroactivity In The States: The Impact of Teague v. Lane On State Postconviction Remedies, 44 Ala. L.Rev. 421, 449 (1993), it has been suggested that "[tjhe Teague test essentially prevents state courts from achieving their goal [of correcting injustice], for through its focus on the impropriety of disturbing a final conviction, it diverts attention from constitutional violations and prohibits relief except in the very rare case.” Id. at 450.

16 . This Court is not the only state court to chose not to adopt Teague or to adopt a modified form of Teague. See e.g. Cowell v. Leapley, 458 N.W.2d 514 (S.D.1990) ("We find the Teague rule to be unduly narrow as to what issues it will consider on collateral review.”); State v. Lark, 117 N.J. 331, 567 A.2d 197 (1989); Ex Parte Coker, 575 So.2d 43 (Ala.1990); Colwell v. State, 59 P.3d 463 (Nev.2002).

17 . State v. Ervin, 979 S.W.2d 149 (Mo. banc 1998), cert. denied, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999); State v. Morrow, 968 S.W.2d 100 (Mo. banc 1998), cer. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182 (1998); State v. Lyons, 951 S.W.2d 584 (Mo. banc 1997), cert. denied, 522 U.S. 1130, 118 S.Ct. 1082, 140 L.Ed.2d 140 (1998); State v. Smith, 944 S.W.2d 901 (Mo. banc 1997), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294, (1997) (all submitted pursuant to RSMo 1994); and State v. Richardson, 923 S.W.2d 301 (Mo. banc 1996), cert. denied, 519 U.S. 972, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996) (submitted under RSMo 1986). The versions of section 565.030 in effect at the time of these convictions were identical to that in effect at the time of Mr. Whitfield’s convictions.

18 . Compare State v. Towery, 204 Ariz. 386, 64 P.3d 828, 835 (2003) ("Arizona has approximately ninety prisoners on death row whose cases have become final and who received a sentence based upon the aggravating circumstances found by the trial judge and affirmed on appeal. Conducting new sentencing hearings, many requiring witnesses no longer available, would impose a substantial and unjustified burden on Arizona’s administration of justice").

19 . This Court further notes that even were a recall of mandate not available, defendant would be entitled to the same remedy in habe-as corpus. In sentencing Mr. Whitfield to death without a jury finding of factors 1, 2, and 3 against defendant, the court below imposed a sentence in excess of that permitted by law. "If a court imposes a sentence that is in excess of that authorized by law, habeas corpus is a proper remedy." State ex rel. Osowski v. Purkett, 908 S.W.2d 690, 691 (Mo. banc 1995), citing, State ex rel. Dutton v. Sevier, 336 Mo. 1236, 83 S.W.2d 581, 582-83 (1935). In such a case, the rules regarding preservation of error by raising the error on direct appeal or in authorized post-conviction motions do not apply, for "those waivers do not affect his objection that the sentence exceeds the maximum allowed by law.” Id. Such an error is jurisdictional, and cannot be waived. See e.g. Merriweather v. Grandison, 904 S.W.2d 485, 489 (Mo.App. W.D.1995).

The United States Supreme Court has also refused to find waiver where the claim is based on a decision that, as did Ring, announces a new constitutional rule that explicitly overrules a past decision of the Court. See Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ("where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures”).

20 . The separate opinion cites to the United States Supreme Court's decision in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), in which a defendant successfully argued that he should have his conviction reversed and remanded for a new trial due to trial error. He claimed that since in the first trial the jury had deadlocked on sentence and the judge had sentenced him to life, he should be considered to have been acquitted of the death penalty and a life sentence should be the maximum sentence on remand. The Court disagreed, holding that it could not presume at what point in the process the jury had deadlocked on punishment and therefore it was defendant's burden to show where the deadlock came if he wanted to argue that the jury acquitted him of the elements of the death penalty.

This analysis would apply had Mr. Whitfield sought a new trial on the basis of some separate trial error that caused this Court to reverse and remand his conviction, and argued that the death penalty could not be sought in the new trial. But, here, the error alleged at issue is not some unrelated trial error, but the very entry of a judgment of death based on the judge's findmgs, not those of a jury, as required by section 565.030. In this circumstance, it is irrelevant whether one can presume from the deadlock that the jury acquitted defendant of the death penalty. Presumptions play no part in this case. The death sentence was unconstitutional, and, the judge was required to enter a sentence of life imprisonment.. In this circumstance, it would make defendant’s victory a hollow one indeed if this Court were to hold that the remedy for the trial judge’s failure to enter a life sentence is to remand to allow the State to seek the death penalty again at a new trial. The remedy must be to correct the error by imposing the sentence the judge should have imposed — life imprisonment without the possibility of probation or parole except by act of the Governor.

21 . Indeed, even were the error harmless, a trial court has a duty to refuse to intentionally commit error, even "harmless” error. See State v. Cullen, 39 S.W.3d 899, 906 (Mo.App. E.D.2001).

22 . Indeed, perhaps in response to Ring, this Spring the Missouri Senate, by a vote of 31 to 0, passed HB 198, which contained an amendment, SA-19, expressly providing for just this result — that if the jury deadlocks, the judge shall enter a life sentence. Journal of the Senate, May 14, 2003. Two days later the Missouri House of Representatives passed the conference report on HB 198 by a vote of 129 to 29. Journal of the House, May 16, 2003. The conference report on HB 198 also provided for approval of this amendment, but the bill, which contained numerous other issues also, was laid over in the Senate on the last day of the session. Journal of the Senate, May 16, 2003.

23 .This is to be distinguished from situations like State v. Mayes, 63 S.W.3d 615, 635 (Mo. banc 2001), and other cases cited by the separate opinion, in which a new trial was ordered because of unrelated trial error of constitutional dimension. Here, as discussed, it is the very entry of the death sentence that is held to be unconstitutional, since made without the very jury findings required for imposition of the death penalty under Missouri law, and hence the only remedy is to order imposition of the proper penalty — a life sentence.