Where a trial court prohibited the defendant in a murder case from asking during voir dire if members could consider the entire range of punishment if the defendant were convicted of second-degree murder but allowed the state to examine the venire about whether they could recommend a life sentence without parole if they convicted on first-degree murder, an instruction on second-degree murder was appropriate in the case, and the court abused its discretion and the defendant showed a real probability of prejudice, so the conviction is affirmed but the sentence is vacated and remanded for a new penalty-phase trial.
Judgment is remanded in part; affirmed in part.
State v. Walker (MLW No. 67153/Case No. ED100616 – 16 pages) (Missouri Court of Appeals, Eastern District, Mooney, J.) Appealed from circuit court, St. Louis City, Moriarty, J. (Andrew E. Zleit for appellant) (Chris Koster and Daniel N. McPherson for respondent).
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