            SUPREME COURT OF MISSOURI
                                         en banc
STATE OF MISSOURI,                               )      Opinion issued April 14, 2020
                                                 )
                            Respondent,          )
                                                 )
v.                                               )      No. SC98268
                                                 )
DAVID M. BARNETT,                                )
                                                 )
                            Appellant.           )


        APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
                  The Honorable Joseph L. Walsh, III Judge

       David M. Barnett (hereinafter, “Barnett”) appeals from the circuit court’s judgment

sentencing him to two terms of life imprisonment without the possibility of parole pursuant

to section 565.020 1 for the first-degree murders of his grandparents. Barnett argues the

circuit court erred in overruling his motion to declare section 565.020 unconstitutional as

applied to him and sentencing him to two terms of life imprisonment without the possibility

of parole for offenses he committed when he was 19 years old because the sentences violate

the federal and state prohibition against cruel and unusual punishment. This Court holds




1
 All statutory references are to RSMo 1994, the statute in effect at the time of Barnett’s
offenses, unless otherwise indicated.
section 565.020 is constitutional as applied to Barnett. The circuit court’s judgment is

affirmed.

                           Factual and Procedural History 2

       On February 4, 1996, Barnett walked to his grandparents’ home and entered through

a bedroom window. Barnett’s grandparents were attending Sunday school and church

services. When Barnett’s grandparents returned home, Barnett confronted them. He

pushed his grandmother down a hallway and pushed his grandfather to the floor. Barnett

grabbed a knife from the nearby kitchen table and proceeded to inflict ten stab wounds and

numerous cuts to his grandfather’s neck, face, and hands. Barnett retrieved another knife

and began stabbing his grandmother in her neck. Barnett returned to the kitchen to obtain

two additional knives and inflicted a total of twelve stab wounds to his grandmother’s neck

and numerous cuts to her face.

       Barnett concealed one of the knives between two mattress pads in a bedroom and

washed the blood from his hands.          Barnett took approximately $120 from his

grandmother’s purse and the keys to their vehicle. Before leaving the home, Barnett stood

silently over his grandparents to ascertain whether they were still breathing.       After

determining they were dead, Barnett lowered two window shades, locked the home, and

drove away in their vehicle. Police apprehended Barnett the next day, and he confessed to

the murders. Barnett was 19 years old.



2
 This recitation incorporates portions of State v. Barnett, 980 S.W.2d 297 (Mo. banc 1998),
Barnett v. State, 103 S.W.3d 765 (Mo. banc 2003), and Barnett v. Roper, 904 F.3d 623
(8th Cir. 2018), without further attribution.
                                            2
       A jury found Barnett guilty of two counts of first-degree murder, one count of first-

degree robbery, and two counts of armed criminal action. Barnett was sentenced to death

for each murder count and consecutive life sentences for the robbery and armed criminal

action counts. This Court affirmed Barnett’s convictions. State v. Barnett, 980 S.W.2d

297 (Mo. banc 1998).

       Barnett sought post-conviction relief, alleging he received ineffective assistance of

counsel when trial counsel failed to investigate and provide the jury with information about

his biological mother, her family, and the environmental and genetic factors affecting his

development. This Court declined relief on this claim and affirmed the motion court’s

judgment denying relief. Barnett v. State, 103 S.W.3d 765, 768 (Mo. banc 2003).

       Beginning in 2004, Barnett embarked on a long course of federal habeas corpus

litigation regarding trial counsel’s failure to investigate and present mitigating family

history evidence during the penalty phase of his trial. Barnett’s claims were denied

repeatedly until 2013, when the federal district court granted Barnett an evidentiary

hearing. After a nine-day hearing, the federal district court issued a 189-page judgment

granting Barnett relief from his death sentence. The federal district court ordered the state

of Missouri to either sentence Barnett to life without the possibility of probation or parole

or grant him a new penalty phase trial. The state appealed. The Eighth Circuit affirmed

the federal district court’s judgment. Barnett v. Roper, 904 F.3d 623 (8th Cir. 2018).

       On remand, the state declined to seek the death penalty. Barnett submitted a

sentencing memorandum arguing section 565.020 was unconstitutional as applied to him.

Barnett contended the principles applied by the United States Supreme Court in its recent

                                             3
criminal jurisprudence concerning juveniles younger than 18 years old applied with equal

force to his offenses that occurred when he was 19 years old. The circuit court held a

sentencing hearing, rejected Barnett’s claims, and sentenced him to life without the

possibility of parole on both murder counts. Barnett filed his notice of appeal in the court

of appeals, challenging section 565.020’s constitutional validity. The court of appeals

transferred Barnett’s appeal to this Court, which has exclusive jurisdiction. Mo. Const. art.

V, sec. 3.

                                   Standard of Review

       All statutes are presumed constitutional. Lopez-Matias v. State, 504 S.W.3d 716,

718 (Mo. banc 2016). “Challenges to the constitutional validity of a state statute are subject

to de novo review.” State v. Shanklin, 534 S.W.3d 240, 241 (Mo. banc 2017). This Court

will not declare a statute unconstitutional unless it clearly and unambiguously contravenes

a constitutional provision. State v. Pribble, 285 S.W.3d 310, 313 (Mo. banc 2009). The

parties dispute whether Barnett preserved his constitutional claim for review. This Court

need not resolve this question because Barnett’s claim fails regardless of which standard

of review is applied.

                        Constitutional Validity of Section 565.020

       At the time of Barnett’s offenses, section 565.020.2 provided that first-degree

murder shall be punishable by “either death or imprisonment for life without eligibility for

probation or parole ….” Barnett argues the circuit court erred in overruling his motion to

declare section 565.020 unconstitutional as applied to him and in sentencing him to two

terms of life imprisonment without the possibility of parole for offenses he committed

                                              4
when he was 19 years old. Barnett argues section 565.020 mandating this sentence violates

the prohibition against cruel and unusual punishment under the Eighth Amendment and

article I, section 21 of the Missouri Constitution. Barnett further argues newly available

scientific evidence indicates the justifications the United States Supreme Court relied upon

to ban imposing the death sentence and mandatory life without the possibility of parole

sentences for offenders younger than 18 years old apply with equal force to offenders who

commit crimes at 19 years old because those offenders also display the transient, hallmark

features of adolescence affecting risk and impulse control.

       The Eighth Amendment provides, “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” In determining

whether a punishment is cruel and unusual, “courts must look beyond historical

conceptions to ‘the evolving standards of decency that mark the progress of a maturing

society.’” Graham v. Florida, 560 U.S. 48, 58, 130 S. Ct. 2011, 176 L.Ed.2d 825 (2010)

(quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976)). “In

addition to categorically prohibiting cruel and unusual methods of punishment, the

United States Supreme Court has construed the Eighth Amendment to prohibit

punishments disproportionate to the offense because ‘[t]he concept of proportionality is

central to the Eighth Amendment.’” State v. Wood, 580 S.W.3d 566, 589 (Mo. banc 2019)

(alteration in original) (quoting Graham, 560 U.S. at 59).

       This Court succinctly summarized United States Supreme Court precedent

concerning punishments for offenders who were younger than 18 years old when the

offenses occurred as follows:

                                             5
       In the last decade, the Supreme Court has issued a series of opinions
       concerning the constitutional validity of punishments for offenders who were
       younger than 18 years of age at the time they committed crimes. In Roper v.
       Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L.Ed.2d 1 (2005), the
       Supreme Court affirmed a holding from this Court that the Eighth and
       Fourteenth Amendments barred the execution of juvenile offenders. Five
       years later in Graham, the Supreme Court held that the Eighth Amendment
       barred courts from sentencing juvenile nonhomicide offenders to life without
       parole. 560 U.S. at 75, 130 S. Ct. 2011. Graham was expanded to prohibit
       homicide juvenile offenders from being subject to a mandatory sentence of
       life without parole in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2464,
       183 L.Ed.2d 407 (2012). Most recently, the Supreme Court ruled in
       Montgomery v. Louisiana, --- U.S. ----, 136 S. Ct. 718, 732, 193 L.Ed.2d 599
       (2016), that Miller’s new substantive rule must be applied retroactively on
       collateral review for juvenile offenders sentenced to mandatory life without
       parole.

Willbanks v. Dep’t of Corr., 522 S.W.3d 238, 241 (Mo. banc 2017).

       In Roper, the Supreme Court based its holding in part on the fact juveniles younger

than 18 years old differ from adults in three general ways. Roper, 543 U.S. at 569. First,

juveniles lack maturity and possess “an underdeveloped sense of responsibility,” resulting

in “impetuous and ill-considered actions and decisions.” Id. Second, “juveniles are more

vulnerable or susceptible to negative influences and outside pressures, including peer

pressure.” Id. Third, a juvenile’s character is not as well-formed as an adult, meaning their

personality traits are “more transitory, less fixed.” Id. at 570. The Supreme Court

recognized these traits allowed for the “greater possibility … that a minor’s character

deficiencies will be reformed” and, “as individuals mature, the impetuousness and

recklessness that may dominate in younger years can subside.” Id. (quoting Johnson v.

Texas, 509 U.S. 350, 368, 113 S. Ct. 2658, 1196, 125 L.Ed.2d 290 (1993)). Roper then

defined a juvenile as an offender younger than 18, explaining,


                                             6
       Drawing the line at 18 years of age is subject, of course, to the objections
       always raised against categorical rules. The qualities that distinguish
       juveniles from adults do not disappear when an individual turns 18. By the
       same token, some under 18 have already attained a level of maturity some
       adults will never reach. For the reasons we have discussed, however, a line
       must be drawn …. The age of 18 is the point where society draws the line
       for many purposes between childhood and adulthood. It is, we conclude, the
       age at which the line for death eligibility ought to rest.

Id. at 574.

       In Graham, the Supreme Court acknowledged “developments in psychology and

brain science continue to show fundamental differences between juvenile and adult minds,”

including that “[j]uveniles are more capable of change than are adults, and their actions are

less likely to be evidence of ‘irretrievably depraved character’ than are the actions of

adults.” Graham, 560 U.S. at 68 (quoting Roper, 543 U.S. at 570). However, the

Supreme Court reiterated relief from a life without parole sentence for juvenile

nonhomicide offenders only applied to juveniles under younger than 18 years old, citing

Roper’s bright-line age cutoff. Id. at 74-75. Likewise, in Miller, the Supreme Court echoed

Roper’s and Graham’s distinction between juveniles and adults when barring the

imposition of life without the possibility of parole sentencing on juveniles for homicide

offenses. Miller, 567 U.S. at 471-78.

       Barnett argues evolving standards of decency mandate that 19 year olds not be

subject to mandatory life without parole sentences. Barnett urges this Court to expand

Roper and its progeny to apply to 19-year-old offenders because they also display the same

traits as those juveniles under 18 years old that were considered in barring the sentences in

Roper and its progeny. Barnett cites cases from Kentucky, Illinois, Connecticut, and


                                             7
Washington as examples of cases in which appellate courts have expanded Roper and its

progeny to apply to offenders beyond 18 years of age. However, this Court does not find

these cases persuasive given two of them were not final for purposes of appeal, one is from

the federal district court, which is not binding on this Court, and the final case found the

sentencing scheme imposed by the legislature did not take Roper into account. 3 Barnett

also cites other state and federal statutes that characterize 19-year-olds as “youthful

offenders” and deserving of special protection. Again, this Court is not persuaded by these

non-Missouri statutes in light of Missouri’s definition of a juvenile offender.

       Barnett further argues this Court should reconsider section 565.020’s age cutoff in

light of Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L.Ed.2d 1007 (2014), in which


3
  In Kentucky, a circuit court held the death penalty was a disproportionate punishment for
offenders under the age of 21. Commonwealth v. Bredhold, No. 14-CR-161 (Fayette Cir.
Aug. 1, 2017). However, the Kentucky Supreme Court recently held this issue was not
justiciable because the defendant had not been sentenced yet. Commonwealth v. Bredhold,
No. 2017-SC-000436-TG (Ky. March 26, 2020). In Illinois, the appellate court held
imposing a mandatory life sentence on a 19-year-old, who acted as a lookout and was not
the actual shooter violated the disproportionate penalties clause of the Illinois Constitution.
People v. House, No. 1-22-0580, 2019 WL 2718457, at *14 (Ill. App. Ct. May 16, 2019).
Barnett concedes neither of these cases is final for purposes of appeal. In Connecticut, the
federal district court held Miller did not prohibit the court from ruling whether a mandatory
life sentence without the possibility of parole was unconstitutional as applied to an 18-
year-old offender. Cruz v. United States, No. 11-CV-787, 2018 WL 1541898, at *15-16
(D. Conn. March 29, 2018) (unreported op.). Finally, in State v. O’Dell, 358 P.3d 359,
364-65 (Wash. 2015), the court remanded the case for resentencing so the circuit court
could take the defendant’s youth into consideration when determining whether to impose
a mandatory life sentence for an offender who committed his crime shortly after his 18th
birthday. Significantly, that court determined the legislature failed to take into account
Roper and its progeny when drafting the sentencing statute to apply to offenders 18 and
older. Id. at 364. While the Missouri legislature did not have the benefit of Roper and its
progeny when Barnett murdered his grandparents in 1994, we presume the legislature took
these considerations into account when revising the statute in 2016 to require mandatory
life sentencing without parole for offenders who are 18 years and older.
                                              8
the Supreme Court invalidated a Florida death penalty statute setting a bright-line IQ cutoff

to determine which offenders were eligible for the death penalty. The Supreme Court

struck down the Florida statute because its “rigid rule … creates an unacceptable risk that

persons with intellectual disability will be executed, and thus is unconstitutional.” Id. at

704. Hence, Barnett argues Hall demonstrates the constitutional infirmity of drawing a

rigid line merely because “a line must be drawn.” Barnett argues applying Hall’s rationale

to Miller requires a conclusion that section 565.020’s rigid imposition of a mandatory life

sentence without the possibility of parole is unconstitutional under Hall. This Court

disagrees.

       Hall declined to draw a bright line or explicitly define intellectual disability, leaving

that determination to each state. Hall, 572 U.S. at 719-20 (citing Atkins v. Virginia, 536

U.S. 304, 317, 122 S. Ct. 2242, 2250, 153 L.Ed.2d 335 (2002)). This contrasts with Roper,

Graham, and Miller, in which the Supreme Court explicitly stated three times the cutoff

between a juvenile and an adult is 18 years of age and limited its holdings accordingly. 4

Finally, Montgomery was decided after Hall and reaffirmed Miller. Montgomery, 136 S.

Ct. at 726.



4
   Further, in State v. Martin, 466 S.W.3d 565, 567-68 (Mo. App. S.D. 2015), the
Southern District addressed this same issue, holding Miller could not be stretched to apply
to an offender who was 18 years old at the time of the offense, and Hall did not change
Miller’s controlling status because the offender was not subject to the death penalty or
alleging an intellectual disability mitigated sentencing. The Eastern District and
Western District have rejected similar claims to expand Miller’s prohibition against life
without parole sentences to those who were 18 years old at the time of their offenses. See
State v. Bates, 464 S.W.3d 257, 268-69 (Mo. App. E.D. 2015); State v. Perdomo-Paz, 471
S.W.3d 749, 765-66 (Mo. App. W.D. 2015).
                                               9
       Barnett also seeks this Court to declare he should receive individualized sentencing

considerations due to his youth. However, in State v. Hart, 404 S.W.3d 232, 237-38 (Mo.

banc 2013), this Court explained:

       Miller does not categorically bar sentencing a juvenile offender who commits
       first-degree murder to life without parole. Instead, Miller holds that such a
       sentence is constitutionally permissible as long as the sentencer determines
       it is just and appropriate in light of the defendant’s age, maturity, and the
       other factors discussed in Miller.

Miller and Hart made clear individualized sentencing taking into account age, maturity,

and other factors applies only when a court is imposing a life without parole sentence to

juvenile offenders, which has been defined as those under 18 years of age. Moreover, the

Supreme Court explicitly acknowledged the reasoning supporting its judgment about

juvenile offenders may be extended to those 18 years of age and older, but it nevertheless

set a bright-line age limit of 18 under federal law. Hence, Roper does not entitle Barnett

to individualized sentencing due to his youth at the time of his offenses.

       This Court is guided by Supreme Court precedent, which clearly defines a juvenile

as an individual younger than 18 years of age for purposes of the considerations Barnett

seeks. Barnett’s policy considerations are better addressed to the legislature, which has the

authority to amend section 565.020, if it determines Missouri should adopt the prevailing

developments in psychology and brain science to expand the definition of juvenile to

include offenders older than 18 years of age.




                                             10
                                       Conclusion

      Section 565.020 is constitutional as applied to Barnett. The circuit court properly

sentenced Barnett to two terms of life imprisonment without the possibility of parole for

the first-degree murders of his grandparents. The circuit court’s judgment is affirmed.



                                         _________________________________
                                         GEORGE W. DRAPER III, Chief Justice


All concur.




                                            11
