Defendant was convicted in the Circuit Court of the City of St. Louis, Thomas C. Mummert, J., of first-degree murder, and was sentenced to death. On appeal, the Supreme Court, Holstein, J., held that: (1) evidence was sufficient to demonstrate defendant knowingly caused or acted with others to cause death of victims after deliberation; (2) trial court did not commit plain error during questioning of jury venire; (3) defendant was not denied effective assistance of counsel; (4) defendant failed to show prosecutor discriminated on basis of race and gender in exercise of preliminary strikes; and (5) death penalty was not disproportionate to murders committed in furtherance of brutal rape and robbery of victims. Affirmed.

HOLSTEIN, Judge.

Because of his complicity in the deaths of Robin and Julie Kerry, defendant Marlin Gray was convicted of first degree murder and sentenced to death. § 565.020. Following the convictions, a motion for post-conviction relief was filed, heard and denied. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. The judgments are affirmed.

I.

The first issue in this case has to do with the sufficiency of the evidence to support a conclusion that defendant knowingly caused the death of Julie or Robin Kerry after deliberation. The evidence is viewed in a light most favorable to the verdict, affording the state all reasonable favorable inferences and ignoring contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

Twenty-year-old Julie Kerry and her sister, nineteen-year-old Robin Kerry, made arrangements with their nineteen-year-old cousin, Thomas Cummins, to meet them shortly before midnight on April 4, 1991. Cummins, who was visiting at his grandparents' home in St. Louis, sneaked away shortly before midnight to meet the girls at a prearranged location. The Kerry sisters were intent on showing Cummins a graffiti poem the girls had painted on the Chain of Rocks bridge. The Chain of Rocks bridge had been abandoned some years earlier. It spans the Mississippi River at St. Louis and has been a site of drinking and partying by trespassers since its abandonment. The three arrived at the bridge, climbed through an opening in the fence, and went onto the Missouri side of the bridge.

Earlier that same evening, defendant Marlin Gray, Reginald (Reggie) Clemons, Antonio (Tony) Richardson and Daniel Winfrey met at the home of a mutual friend in St. Louis. The latter two individuals were juveniles, being sixteen and fifteen years old respectively. Defendant was the oldest and largest of the group. At defendant's suggestion, the four left for the Chain of Rocks bridge to "smoke a joint" that defendant had acquired from someone at the house where the four met. The defendant's group had been at the bridge sometime before the Kerry sisters and Cummins arrived.

As the two victims and their cousin were walking toward the Illinois side of the bridge, they encountered defendant and his three companions. After a brief exchange of greetings, Winfrey asked for cigarettes, which were supplied by one of the Kerry sisters. As he had done earlier for his cohorts, defendant demonstrated to Cummins and the girls how to climb down a manhole on the deck of the bridge to a metal platform which leads to a concrete pier that supports the bridge. Defendant told Cummins the platform was a good place to be "alone with your woman." The two groups then separated, with the Kerrys and Cummins walking eastward toward Illinois and the defendant's group walking toward Missouri.

While walking away, Clemons suggested that they rob Cummins and the Kerrys. Defendant smiled, clapped his hands, and replied, "Yeah, I feel like hurting somebody." The four then turned and began walking back toward the east end of the bridge. While walking, Clemons and defendant engaged in some conversation. When defendant handed Winfrey a condom, he responded to the implication by saying he "wasn't going to do anything." At that point, defendant and Clemons pushed Winfrey against the bridge railing and said, "You're gonna do it." Winfrey then agreed to "do it."

The defendant's group continued walking toward the Illinois side and again came upon the Kerrys and Cummins. The girls were watching a campfire that had been built by someone on the Illinois side of the river. Richardson went to the side of the bridge and yelled something at the people by the campfire. At that point, the Kerrys and Cummins began walking back toward the Missouri side of the bridge.

The defendant and his three associates followed at a close distance. As the group passed a bend in the bridge, defendant, on a prearranged signal, put his arm around Cummins and walked him back ten to fifteen feet telling him, "This is a robbery. Get down on the ground." Cummins complied. Defendant told Cummins that if he looked up, defendant would kill or shoot Cummins. At the same time, Clemons, Winfrey and Richardson grabbed Julie and Robin Kerry. The girls screamed.

One of the assailants said, "[D]o you want to die?" and ordered the girls to stop screaming or the speaker would "throw you off this bridge." This statement, if not made by defendant, was made within earshot of defendant. Winfrey held Robin Kerry on the ground, covering her face with her coat. Clemons ripped off Julie Kerry's clothing and raped her as she was held by Richardson.

At some point, while Julie and Robin were being raped by Clemons and Richardson, defendant went to Cummins, who was still lying face down on the ground. Defendant stated, "I've never had the privilege of popping somebody ... if you put your head up or try to look, I'm going to pop you." Defendant then went to where Winfrey was holding Robin Kerry on the ground. Defendant told Winfrey to watch Cummins. Then, with the assistance of Clemons, defendant tore off Robin Kerry's clothing and raped her. Clemons then forced Cummins to surrender his wallet, wristwatch, some cash and keys. Clemons apparently became agitated upon finding Cummins firefighter's badge, thinking he might be a police officer.

One of the assailants then forced Cummins to get up and, while holding Cummins' head down so he could not see who it was, walked him a short distance on the bridge and made him lie down again. There defendant and Winfrey warned Cummins not to talk to police. One of them showed Cummins his driver's license and said, "We know who you are and if you tell anybody, we're going to come and get you." Cummins heard two voices discussing whether he would live or die.

While defendant was in the act of raping Robin Kerry, Richardson forced Julie Kerry into the manhole and followed her. When defendant finished, he went to Winfrey, who was still watching Cummins, and asked where Richardson had gone. Winfrey pointed toward the Missouri side of the river. Defendant then ran off toward the Missouri side in search of Richardson and Julie Kerry, running past the manhole. According to defendant, he thought Richardson had taken her "to the end of the bridge, where he could take her by the river and maybe drown her or somethin'."

Clemons, after completing his rape of Robin Kerry, forced her down the same manhole where Richardson had taken Julie. Clemons then returned to Cummins and, putting Cummins' coat over his head, forced him down the same manhole where Richardson and the two girls were located. Clemons then followed, as did Winfrey. However, Winfrey was told by Clemons to go find the defendant, which he did.

Clemons ordered Cummins and the Kerry sisters to step out onto the concrete pier below the metal platform. The three were told not to touch each other. Julie Kerry and then Robin were pushed from the pier of the bridge, falling a distance of fifty to seventy feet to the water. Cummins was then told to jump. Believing his chances of survival were better if he jumped instead of being pushed, he jumped from the bridge.

Meanwhile, Winfrey caught up with defendant. The two were returning back onto the bridge and were near a rock pile at the entrance of the bridge when they were met by Clemons and Richardson. Clemons said, "We threw them off. Let's go." The group ran to their car, drove to a gas station in Alton, Illinois, and bought food and cigarettes with the money they had taken from the victims. The group then drove to an observation point over the Mississippi River called the Chair, where they sat and watched the river. While there, Clemons remarked, "They'll never make it to shore." Defendant praised Richardson for being "brave" to push the Kerry sisters off the bridge.

Later, in police custody, defendant admitted to participating in raping both of the girls but denied that he had been involved in the murders. His tape recorded statement, although he claims it was obtained by police coercion, was admitted in evidence and was consistent in most essentials with the above statement of facts. Although Cummins survived and testified at trial, Julie and Robin Kerry were killed. The body of Robin Kerry was never recovered. Julie Kerry's body was found three weeks later in the Mississippi River by the sheriff of Pemiscot County, Missouri.

II.

The defendant argues that the above evidence is insufficient to demonstrate that defendant knowingly caused or acted with others to cause the death of Julie or Robin Kerry after deliberation. "Deliberation" means cool reflection for any length of time, no matter how brief. § 565.002(3). Thus, in order to convict, there must be some evidence that defendant made a decision to kill the victims prior to the murder. State v. O'Brien, 857 S.W.2d 212, 218 (Mo. banc 1993).

The state responds by arguing that defendant's participation in planning to commit the crimes of robbery and rape together with the threats to kill the victims that were made either by defendant or in his presence in the course of the rape and robbery, and defendant's statement after the killing that those who did the acts were "brave" are sufficient facts to infer that the defendant deliberated on the killing of Robin and Julie Kerry. Deliberation may be inferred from the acts of forcing the victims into the manhole, off the metal platform onto the concrete pier and then pushing the two victims from the pier. If defendant was shown to have participated in any of those acts, deliberation on the killing might be inferred. However, he was not shown to have participated in those acts.

A distinct question is whether defendant's participation in the planning and execution of the rape and robbery are sufficient to infer deliberation of murder. Implicit in any forcible rape or robbery is that threats are made against the victim to accomplish the criminal purpose. Forcible rape and first degree robbery each require the use of force or threat of force as elements of the crime. §§ 566.030 and 569.020. A homicide committed during the perpetration of those or other felonies is second degree murder. § 565.021.1(2).

Had the legislature intended to impose the most severe punishment for participating in the planning or execution of a forcible rape or robbery where death to a person results from the perpetration of those crimes, it could have so provided. However, no such provision was made. The statute requires not merely the deliberation of forcible rape and robbery, but deliberation of the killing of a person.

The legislature has made the distinction between first degree murder and second degree felony-murder. To hold otherwise would mean that every homicide that occurs during a forcible rape or first degree robbery would be first degree murder and the felony/murder provisions of § 565.021.1(2) would be meaningless. However, that is not what the statute provides. We must abide by the legislatively created distinction. As O'Brien makes clear, more is required than the planning and execution of a crime involving the use of force.

In cases of accessory liability for first degree murder, evidence of at least three circumstances appears to be highly relevant in determining if accomplice deliberation may be inferred. The first circumstance is where there is a statement or conduct by the defendant or a statement or conduct by a codefendant in the presence of defendant prior to the murder indicating a purpose to kill a human. State v. Isa, 850 S.W.2d 876, 882-83 (Mo. banc 1993) (upon hearing her husband say, "[T]his is the last day. Tonight, you're going to die.", Isa continued to cooperate with her husband in the inquisition of the victim and subsequent murder); State v. Six, 805 S.W.2d 159, 165 (Mo. banc 1991) (Six held a knife to the throat of the victim's mother and later slit the throat of the victim's mother. The victim, abducted by defendant and a cohort, was later found dead with her throat cut); State v. Roberts, 709 S.W.2d 857, 860 (Mo. banc 1986) (Roberts incited a prison melee with "Let's rush them," and held the guard for others to stab to death); State v. Betts, 646 S.W.2d 94, 95 (Mo. banc 1983)(Betts and another planned a burglary and agreed anyone found home would be killed); State v. Lindsey, 507 S.W.2d 1, 2 (Mo. banc 1974) (Lindsey's partner said, "Wait here, I am going to get a bat because I am going to kill somebody tonight." On the partner's return, Lindsey agreed he was ready).

A second circumstance permitting an inference of accessory liability is evidence that the murder was committed by means of a deadly weapon and the accomplice was aware that the deadly weapon was to be used in the commission of a crime. State v. Turner, 623 S.W.2d 4, 6-7 (Mo. banc 1981) (initially planning to commit robbery, Turner knew his comrade had a gun and a knife. Turner entered the store and observed his codefendant beating and stabbing the victim); Lindsey, 507 S.W.2d at 2 (Lindsey knew his partner carried the bat intending to kill someone with it); State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980) (Strickland participated in a triple homicide by holding the victims at bay with a shotgun).

A third factual circumstance common in first degree murder cases where accomplice deliberation is found to exist is where there is evidence that the accessory either participated in the homicide or continued in the criminal enterprise when it was apparent that a victim was to be killed. Isa, 850 S.W.2d at 883 (Isa grabbed and held her daughter as the husband stabbed the daughter); Roberts, 709 S.W.2d at 860 (Roberts held the prison guard while other inmates stabbed a guard to death); Turner, 623 S.W.2d at 6-7 (Turner, upon his late arrival at the scene of a robbery, hit the victim in the head with a beer bottle after a cohort had stabbed and beat the victim); Lindsey, 507 S.W.2d at 4 (Lindsey continued in the plan to rob after he knew his partner got a bat and told of his intent to kill).

Here there were threats to kill made either by the defendant or in the defendant's presence. In addition, the defendant at one point stated he would shoot Cummins, indicating that he had ready access to a deadly weapon, even though no weapon was actually displayed or used to commit the homicides in this case. The jury was entitled to believe defendant had a gun. Defendant continued in the criminal enterprise after the threats to kill the victims were made. After the threats, he held Cummins at bay while the rapes were committed.

Defendant participated in a discussion about whether Cummins should be killed, followed moments later by an attempt on Cummins' life and the two homicides. These facts, together with defendant's statement that he felt like hurting somebody, his role as a leader and enforcer in the group, and his belief before leaving the bridge that Richardson had gone to drown Julie Kerry in the river, are sufficient evidence to permit an inference by the jury that defendant had a conscious purpose of committing the acts in which he engaged so that the victims would be killed and that the homicides occurred after he coolly deliberated on the deaths for some amount of time, however short.

The facts in this case stand in stark contrast to those in O'Brien. The defendant there made an agreement with his codefendant to commit a strong-arm robbery. O'Brien's role was to lure the victim into an alley so his codefendant could commit the robbery. No deadly weapons were used or threatened to be used by O'Brien and none was displayed in his presence. No threat to kill was made by defendant or in defendant's presence. O'Brien departed the alley before the codefendant actually engaged in the egregious beating which resulted in the victim's death. O'Brien did not continue in his participation after it became apparent by threats or acts that deadly force would be used.

In that case, this Court reversed the first degree murder conviction due to insufficiency of the evidence of deliberation. Id. at 220. As in O'Brien, the defendant here was not present when the victims were murdered. However, nothing in O'Brien suggests that in order to have deliberation, an accessory must actually have been present when the murder occurred. It is the threats to kill the victims made by defendant and threats of such force by others in defendant's presence that distinguishes O'Brien from this case. The totality of the evidence here permits an inference of deliberation. Thus, the claim of insufficient evidence of deliberation on the purpose to kill fails.

* * *

Defendant's next contention asserts plain error due to the trial court's failure to, sua sponte, interrupt the prosecutor's closing argument in the punishment phase which is here asserted to be racial in nature. Defendant, an African-American, claims the judge should have stopped the prosecutor from arguing he was a manipulating leader and should have prevented the prosecutor from describing the people defendant led as "normally female ... normally white ... normally middle-class ... normally they had a problem at home, self-esteem, something else ... not ... overly attractive."

Defendant claims these remarks were racist and should not have been allowed, citing United States v. Doe, 903 F.2d 16 (D.C.Cir.1990). Doe was a Jamaican defendant and the prosecutor and state's witness referred to Jamaicans as a race and to that race's role in drug trafficking. Contrary to Doe, the state in this case did not make a sweeping generalization about defendant's race.

Defendant also argues that the state's mention of race was impermissible, citing McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987). Defendant contends the state was attempting to incite racial tensions and prejudice based on interracial dating. McCleskey is not dispositive on this issue. McCleskey merely declined to accept the Baldus study on the impact of race in imposing death sentences. In this case, since the jury was evenly racially divided, defendant's argument appears somewhat disingenuous. There is no significant likelihood that racial bias influenced the jury in this case. See McCleskey at 309 n. 30, 107 S.Ct. at 1777 n. 30.

Defendant further takes issue with the prosecutor's characterization of defendant's leadership being similar to that of Charles Manson, although Manson's name was never mentioned. Defendant relies on Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.1989), and State v. Whitfield, 837 S.W.2d 503 (Mo. banc 1992). The purpose of the state's argument was to explain that a person does not have to be present to commit the crime if he has participated in the planning. Using evidence adduced from the defendant's witnesses, the state made the following argument:

Well, the names, you know, Charles "Tex" Watson, came to me, Patricia Krenwinkle, Squeeky Fromme. You know, these names came to me and I said, what the heck, you know, why did that jump into my mind and I couldn't understand it. And then basically it came that people who are weaker, younger, problematic, can be manipulated and dealt with by somebody who is apparently stronger, who, like their leader, you know, was a poet, played the guitar, fancied himself a songwriter, but really had a problem.

In Newlon the state peppered its "send a message" argument with the names of Manson, Speck, and Son of Sam, even though there was no connection of those crimes to facts in the case under consideration. In contrast to Newlon, the state's reference to the Manson "family" was quite limited and relevant to explain how a leader can manipulate his followers. Additionally, the court in Newlon found error in the totality of the state's argument which also included, "If [defendant] was going to harm your child, would you kill him? ... If you think you would have, kill him now. Kill him now ... I'm talking to you as prosecuting attorney of this county--the top law enforcement officer in St. Louis County." 885 F.2d at 1342. Newlon is distinguishable.

In Whitfield, the state referred to the defendant as a mass murderer and serial killer because he had two prior homicide convictions. 837 S.W.2d at 513. Here the prosecutor did not call defendant a mass murderer, serial killer, or the like. Thus, Whitfield is inapposite. While we stop short of endorsing the argument here, the argument in this case did not rise to the level of manifest injustice, and the failure to make an objection does not constitute ineffective assistance of counsel.

Defendant makes a tangential argument that the state exceeded permissible bounds of victim impact evidence under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The evidence complained of included testimony that the victims held liberal political views, were caring, community involved, excellent students, advocates of social change, and "without a hateful bone in her body." In addition, during the penalty phase the prosecution presented a video of the Kerry family Christmas. "[The] state may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of specific harm caused by defendant." 501 U.S. at 825, 111 S.Ct. at 2608. The state is permitted to show the victims are individuals whose deaths represent a unique loss to society and to their family and that the victims are not simply "faceless strangers." Id. This point is denied.

XIV.

In defendant's next point, he claims the sentence of death was disproportionate pursuant to § 565.035.3(3). He argues that the verdict here violates the requirement of proportionality because of the uncertainty of the evidence of his guilt, the possibility of police or prosecutorial misconduct, and the absence of any evidence of his involvement in the killing, prior knowledge of the killing, use of a weapon or prior convictions.

If the case, taken as a whole, is plainly lacking in circumstances consistent with those in similar cases where the death penalty has been imposed, then a resentencing will be ordered. State v. Ramsey, 864 S.W.2d 320, 328 (Mo. banc 1993). In this case, the defendant and his companions committed the murders in furtherance of the brutal rape and robbery of the victims. The motive of defendant and his cohorts was to escape capture and identification.

A number of cases may be cited in which the death penalty was assessed where the murder was committed to avoid arrest or detection. Ramsey, 864 S.W.2d 320; Six, 805 S.W.2d 159; State v. Grubbs, 724 S.W.2d 494 (Mo. banc 1987), aff'd., Grubbs v. Delo, 948 F.2d 1459 (8thCir.1991); State v. Kilgore, 771 S.W.2d 57 (Mo. banc 1989); State v. Griffin, 756 S.W.2d 475 (Mo. banc 1988). In other cases the death penalty has been imposed where the murder was committed in conjunction with other crimes involving force. Hunter, 840 S.W.2d 850; State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992); State v. White, 813 S.W.2d 862 (Mo. banc 1991), rev'd. on other grounds; Six, 805 S.W.2d 159; State v. Powell, 798 S.W.2d 709 (Mo. banc 1990); State v. Reese, 795 S.W.2d 69 (Mo. banc 1990); State v. Petary, 781 S.W.2d 534 (Mo. banc 1989); Griffin, 756 S.W.2d 475; State v. Murray, 744 S.W.2d 762 (Mo. banc 1988); State v. Pollard, 735 S.W.2d 345 (Mo. banc 1987); State v. Young, 701 S.W.2d 429 (Mo. banc 1985); Betts, 646 S.W.2d 94. In addition, defendant in this case was the oldest of the group and appeared to take on the role of leader. That fact also appears in cases where the death penalty is imposed. Roberts, 709 S.W.2d 857; cf. McIlvoy v. State, 629 S.W.2d 333, 334 (Mo. banc 1982) (death penalty found to be disproportionate where defendant had limited intelligence and education and was a weakling and a follower).

In addition, here there were two murders, as well as an attempted murder. The fact of multiple homicides or multiple attempts at homicide is consistent with facts in cases where the death penalty has been imposed. Ramsey, 864 S.W.2d 320; State v. Mease, 842 S.W.2d 98 (Mo. banc 1992); Hunter, 840 S.W.2d 850; Ervin, 835 S.W.2d 905; Powell, 798 S.W.2d 709; Reese, 795 S.W.2d 69; State v. Sloan, 756 S.W.2d 503 (Mo. banc 1988); Griffin, 756 S.W.2d 475; Murray, 744 S.W.2d 762; Young, 701 S.W.2d 429; State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984).

The defendant's claims of weaknesses of the evidence of his guilt and police misconduct were resolved against him by the trial judge and the jury. Those claims do not serve as a basis for finding the sentence to be disproportionate. In addition, the evidence of the defendant's absence at the time *390 of the actual killing is not dispositive of the question of proportionality. The death penalty has been sustained where there was no evidence that the defendant was present at the time of the actual murder. Six, 805 S.W.2d 159.

Defendant cites several cases in which the death penalty was imposed but which were reversed by this Court on appeal. Isa, 850 S.W.2d at 902; Whitfield, 837 S.W.2d 503; State v. Griffin, 848 S.W.2d 464 (Mo. banc 1993); State v. Wacaser, 794 S.W.2d 190 (Mo. banc 1990). Each of those cases involved a reversible error. No reversible error exists in this case. Thus, the cases relied on by defendant do not provide a reliable basis for attacking the proportionality of the death sentence.

To summarize, the circumstances of this case are consistent with similar cases in which the death penalty was imposed and nothing in this case indicates that the imposition of the death penalty is wanton or freakish. Ramsey, 864 S.W.2d at 328. Accordingly, the death sentences here were not disproportionate.

XV. In his final point, defendant contends that the errors complained of above as well as a litany of additional errors that he asserts have the cumulative effect of depriving him of a fair trial. This Court has rejected such a "cumulative error" theory, stating that "Numerous non-errors cannot add up to error." Hunter, 840 S.W.2d at 869-70. Having determined that none of defendant's previous points amount to reversible error, there can be no reversible error attributable to their cumulative effect. Also, a review of the claims of error presented in defendant's final point indicates that those complaints did not deprive him of a fair trial.

CONCLUSION

The judgments are affirmed.

Gray v. Bowersox, 281 F.3d 749 (8th Cir. 2002) (Habeas).