*1 Missouri, Respondent, STATE BAKER, Appellant.
Robert
No. 63244. Missouri,
Supreme Court
En Banc. 23, 1982.
Aug.
Rehearing Sept. Denied *2 Jones, Louis,
James appellant. C. St. Ashcroft, Gen., Atty. Kelly Klopfen- John stein, Gen., Atty. City, Asst. Jefferson respondent.
DONNELLY, Chief Justice. Appellant Baker was convicted Robert capital murder in the Circuit Court of the Louis and was St. Following sentenced to death. rendition of sentence, judgment imposition appeal perfected to this Court. This appellate jurisdiction Court has exclusive V, under art. Mo.Const. 3.§ Gregory Erson was a officer 19,1980, he City of St. Louis. On June “Stroll”, assigned high to work at the area, agent crime as an undercover on the prostitution He unmarked detail. drove an automobile, jeans and wore blue and a soft- ball shirt.
Appellant also in the area of the evening “Stroll” of June companions, He and Leslie Lo- including max, were the area in a driving around robbery piсkup They seeking truck. they money pur- victims so could obtain chase At illegal drugs. approximately p. 11:30 m. and the others noticed parked Erson’s car on Westminster near Whittier. As corner of Westminster and capital murder in Gardner. car, in it ed offense of they passed saw Erson 556- necessarily him their victim. held that under § and decided to make Gardner degree murder was a They (repealed), made a turn off Westminster first Whittier, onto the truck out of murder parked lesser included offense of the truck Erson’s view. Lomax then left an “offense inferior to that because it was *3 Upon and went over to talk with Erson. 556.220. in the indictment.” charged § truck, he the others returning told of the law This was a correct declaration he money that Erson had because he said in Gardner. holding which сontrolled the wanted a appellant “date.” Lomax and included Is murder a lesser degree first approached on the the automobile —Lomax 556.046, murder under capital offense of § appellant passenger driver’s side and on the provides 556.046 RSMo 1978? Section side. The windows of the doors were front as follows: pertinent part confession, open. According appellant’s to of an may “1. A defendant be convicted he shot Erson. charged in an offense offense included The arrived soon after at the scene of- or information. An the indictment slumped the shooting. Erson was found fense is so included when: over in the front seat of the car. His (1) by proof of It is established visible, radio partially although he was required than all the facts same or less lying on it. police department His revolver of the offense establish the commission had been missing. Erson’s revolver charged; used right to shoot him in the back near his by (2) It is denominated specifically armpit. through body The bullet passed the offense degree statute as a lesser in a path, cutting through downward ” charged.... heart and He of massive lung. died internal bleeding. that an recognized This Court included offense offense can be a lesser
Appellant first contends the trial court
are
(1) when its elements
either:
another
erred in
an
failing
give
instruction
therein,
by
when
necessarily included
murder first degree.
as a
specifically
it is
denominated
statute
trial court
Appellant asserts
charged. State
degree
lesser
of the offense
in failing
degreе
erred
to instruct on first
829,
(Mo.
Wilkerson,
banc
616 S.W.2d
Gardner,
murder
because State
1981).
requires
The “elements test”
(Mo.1980), requires
S.W.2d 40
that such an
by proof
the lesser offense be established
instruction
given
where the evidence
required
than all the facts
the same or less
supports
specific question
it. The
here is:
prove
greater
offense. State
error,
evidence,
Assuming sufficient
it
is
(Mo.
banc
Hodges,
&
Smith
only capital
charged,
when
murder is
to fail
re
1979).
murder in Missouri
degree
First
to submit a
instruction
degree
first
murder
felony;
aof
quires proof of commission
in a trial
for capital murder committed
Therefore, first
capital murder does not.
1, 1979?
after
“no.”
January
The answer is
included of
is not a lesser
degree murder
Gardner does not control this case. Gard
elements.
murder on their
сapital
fense of
ner
proposition
does not stand for the
be described
degree
can first
murder
Nor
degree
first
murder
included
is
lesser
as a
by statute
“specifically denominated
offense of capital murder under the New
Cf. Wilk
capital
murder.
degree”
lesser
Criminal
Code.
crime
Gardner
556.-
erson,
under
supra. Consequently,
§
31,
August
committed
1978. See State
is not
046,
1978,
degree murder
first
RSMo
Mercer,
1981).
murder.
capital
a lesser included offense
556.031,
is that
effect of
RSMo
§
conclusion, it is
support of this
prior
January
crimes committed
In further
has,
Assembly
con-
governed
are not
556.031.1 noted that
the General
Code. §
about
(re
brought
556.220,
change
current with the
.3. Section
RSMo
in what of-
556.046.1(2),
change
pealed),
includ-
made
governed what was a lesser
§
evidence at a
Appellant presented
pre-
the trier of
a capital
fenses
fact in
murder
two
565.006.1,
suppress
is to
trial
on a motion
hearing
case
consider. Section
RSMo
gave to police.
recorded statements he
One
no
Supp.1979,
longer
as did
565.-
requires,
§
June
and the
006.1,
statement was taken
trier
RSMo
that the
of fact in a
other was taken June
1980.
murder
capital
case consider “whether the
murder,
guilty
mur-
suppress,
At
motion to
hearing
on the
in the
degree,
der
first
murder
appellant,
taken on the
photographs
degree,
manslaughter.”
second
See
[or]
morning
investiga-
of June
565.006.1,
Historical Note to
Supp.
Bureau,
tor
for the Public Defender
inju-
the extent of his
introduced to show
testified that she
Appellant’s
ries.
sister
Having
degree
ruled that first
mur
evening
of June
saw
*4
der is not a lesser included offense of capi
injuries
and that he
her
on his
showed
murder,
tal
we must
then determine the
and
her that he confess-
back
face and told
viability
resulting
constitutional
of the
in
ed on
20
beat him.
June
because
structional scheme
light
Beck Ala
Louis
Jail
Medical records from
St.
bama,
447
100 S.Ct.
U.S.
65
June
showed that on
L.Ed.2d 392
requires
Beck
that the
complained of
and three abrasions
“bruises
trier of fact
in a capital murder case be
back,”
neck,
on his
a scratch
and
allowed
consider lesser included offenses
“generalized aching.”
supported by the
Cf. Hopper
evidence.
that on
Appellant
hearing
testified at
-
Evans,
-,
U.S.
102 S.Ct.
72
by
June 20 he was beaten
numerous officers
The Beck requirement
One;
they
in Interview Room
that
never
prevents the jury
being
from
“аll
until
rights
informed him of his Miranda
nothing” situation
might
in which it
err on
taped;
was
that within a
confession
the side of
Although
conviction.
Beck is
at Room One
few minutes of his arrival
precisely
not
point,
on
to the fact
due
that
chair,
him,
they handcuffed him to a
kicked
degree
first
murder is
a
lesser included
hair,
slapped him,
his
burned his
pulled
Missouri,
offense of capital
murder
ex-
him,
cigarettes, yelled
with
and
arms
amination of the
homicides,
of the
elements
chair;
only
that the
knocked him out of the
notably
states,
the mental
illustrates that it
was
of the
reason he confessed
because
degree
is second
murder,
degree
not first
beating;
up”
things
that he
some
“made
murder,
sufficiently
which would
test a
thought
that he
would
the confession
belief
jury’s
facts for a
crucial
con
hear;
Fletcher knеw
want to
that Detective
565.001,
viction of
murder. See §
and
beatings
going
were
on
that he
that
1978;
1978;
565.003,
RSMo
§
RSMo
565.-
Appellant
advised
confess.
appellant
1978;
Franco,
State
544
was
also testified that he
beaten
(Mo.
1976),
cert.
banc
de
confession,
June
but
gave
20 after he
nied
L.Ed.2d
only
he
beaten
on that
actually
that
was
(1976). Therefore,
omitting first de
that
day. Appellant
po-
on June
stated
scheme,
gree murder from the instructional
him;
on June 22 police
lice threatened
that
only capital
where
is charged,
murder
does
appel-
from
taped
took another
statement
run afoul
of Beck.
lant,
it
him with threats of
forcing
from
cross-examination,, ap-
beating.
more
On
Appellant next
the trial court
contends
arrival at
upon
that
pellant
testified
оverruling
erred in
suppress
his motion to
20, news
on June
and
police headquarters
his confession
the prosecution
because
personnel
corridor immedi-
media
filled
failed to sustain its
a
proving by
burden
ques-
ately outside Room
where he
One
that the
preponderance
the evidence
con-
tioned.
freely
voluntarily
fession was made
it was
Crews testified for
through physical
not obtained
Officers Fletcher and
Fletcher,
appellant
brought appellant
officers.
who
by police
abuse
the State.
in,
upon
no
picking up appellant
appellant’s
testified
fered
evidence to rebut
alle-
he informed him of
did not
threats
rights
but
that it
obtained
gations
him;
interrogate
question
that he took
the motion
violence. The court sustained
him to Interview
left him
Room One and
regard
suppress with
to the June
state-
Crews;
there with
McCoy
Officers
ment and declared it inadmissible.
in the corridor
there
outside Room One
trial,
his motion
appellant
At the
renewed
newsmen;
were many
that he did stick his
with
suppress.
trial court concurred
head in
a
Room One
few times to see how
sitting
at the
rulings made
the court
were
things
only
that he
progressing;
tape
suppression hearing, and the June
appellant
things
talked to
to ask him how
played
jury.
occasions;
going
on those
that he
When a
is obtained
confession
nothing
knew
of the alleged beating. Offi-
the State
person
custody,
from
while in
Crews,
cer
one of
ques-
the officers who
admissibility
must
once
issue of
prove,
appellant,
tioned
testified that he and Offi-
raised,
thаt it has
with Miranda
complied
McCoy
cer
advised appellant of his Miranda
voluntary.
and that
the statement was
rights when he
interviewing
arrived at the
Olds,
751-752
room;
approxi-
arrived at
1978). The
con
afternoon;
voluntariness
mately three o’clock
by preponder
Room
located
fession must be established
directly
One is
south of the
Moreover,
it,
leading
corridor
wall
ance of the
where
with one interior
evidence. Id.
*5
corridor;
separating
conflicting
it from the
that air
offered
there is
evidence
vents run from the interviewing room out
the voluntar-
suppress concerning
motion to
corridor;
not,
to the
nor did
statement,
that he did
statement
iness of a
and that
beat
McCoy,
appellant
Officer
or threaten
to
by
ruled
trial court
has been
way;
thаt he
he
any
appellant that
told
admissible, it is a
of discretion not
matter
had
named or
been
Lomax
implicated
Flowers, 592
disturbed.
lightly
account,
and that “if he
his
give
wanted to
1979).
(Mo.
We are
banc
S.W.2d
it”;
we would
made a
tape
appellant
case,
warranted,
in this
on the record
not
statement,
recorded;
which
trial
overturning the
court.
finding
reporters and
cameras were still
television
the trial court
Appellant next contends
questioned
out in the hall after they had
to limit cross-
overruling
erred in
his motion
appellant
appel-
and that
with
they walked
by barring
prosecutor
from
examination
them;
past
lant
taken
that he was then
prior
evidence of
impeaching appellant by
un-
McCoy
down and booked.
Officer
convictions.
testify
hospi-
able to
at the
to
hearing due
trial, appel
In his motion
new
talization.
the use of the
regarding
lant raised error
During
hearing
thoroughly
the court
during
him
impeach
convictions
his
prior
inju-
questioned appellant
alleged
as to his
Now,
em
testimony.
appellant
on appeal,
questioned
ries
Officer
as to
Crews
He as
theory
point.
a new
on this
ploys
details of
the June 20
recording of
of admit
practice
serts that the “Missouri
statement. The
specific
court also made
evidence of
convictions
ting
prior
findings
respect
with
photographs
to the
of
impeachment purposes deprived [him]
introduced by appellant. Reviewing all the
law and
due
of
process
constitutional
evidence,
court,
findings,
in detailed
under the
оf the laws
equal protection
appellant
determined that
was not beaten
the United
Amendment of
Fourteenth
statement,
prior to the June 20 recorded
Constitution,
permitted
in that it
States
rights
and that
was advised of
stage of
prosecutor
present,
guilt
at the
and was aware of
prior
giving
them
trial,
relevant only
evidence which was
statement. The
appellant’s
court overruled
the trial.”
punishment stage
to the
motion to suppress the
20 statement.
June
correctly
With
court
respect to
June 22 recorded state-
The trial
ruled
ment, the court
of-
of error
This Court
allegation
presented.
noted that
the State
has uniformly
491.050,
held
may
have recovered some degree
respect
Ferber,
pertaining to the use of prior
ability,
convic-
see New York v.
- U.S. -,
tions to
affect a witness’
“con-
73 L.Ed.2d
credibility,
S.Ct.
an absolute
prior
(1982)
to show
con-
we decline to
the unscrutable
ferís]
address
victions ...
for the purpose
impeach-
question of mens rea.
Morissette v.
See
ment.” State v. Busby,
States,
503 United
342 U.S.
S.Ct.
(Mo.1972).
also,
Toliver,
See
Texas,
State v.
(1952);
L.Ed. 288
Powell v.
392 U.S.
1976).
trial
in a detailed
denied
grand
of
applies
also
the selection
Appellant
pra,
with the
stipulated
motion.
Mitchell,
Rose
foremen.
to be
State to allow
of this order
appeal
545, 565,
2993, 3004,
99 S.Ct.
61 L.Ed.2d
Payne,
consolidated
State v.
No.
presently pending
In the
in this Court.
judicial
are
interest of
the issues
economy,
stipula-
have
into a
parties
entered
blacks,
addressed and resolved in this cause.
which
tion оn the exclusion of
grand
(1)
states:
of
composition
protec-
“In order to
an equal
show that
1980, was 23.6%
jury pool
in February
tion
violation
in the context of
occurred
black;
black;
in March
it
23.3%
selection,
must
grand jury
the defendant
black;
it
23.5%
April
and in
procedure
show that the
employed resulted
of
stipulated
composition
to the
parties
of his
underrepresentation
substantial
from Febru-
juries
sat
grand
twelve
which
which he
race or of the
group
identifiable
August
1978, August
In the
ary
Partida, 430 U.S.
belongs.” Castaneda v.
regular
twelve
grand jury, four of the
482, 494,
51 L.Ed.2d
five of
jurors
(33.33%),
were
grand
black
(1977). “The first
is to establish
step
regulars
the sixteen
and alternates
group
recognizable,
is one that
is a
black.
(41.25%),and
the foreman
black
class, singled
distinct
out
for different
women
Moreover,
seven
grаnd jury
had
laws,
treatment under
written or as
as
as
women
five men as
two
regulars,
and
Next,
applied.
(Citations omitted).
the de
alternates,
Statisti-
female foreman.
gree
must
underrepresentation
the hearing
evidence at
established
cal
proved, by
comparing
proportion
who are
(1) of
following:
persons
those
group
propor
in the total
population
of St.
City
in the
twenty-one
older
jurors,
tion called to serve
over a
grand
as
38.5%;
Louis,
(2) women
constitute
blacks
significant period
(Citations omit
of time.
approxi-
of St. Louis constitute
ted). Finally, a
that is
procedure
selection
who are
mately 56.7%
the residents
neu
susceptible
racially
of abuse or is not
older;
(3) over
twenty-one and
supports
tral
of discrimina
presumption
(February
year period
two-and-one-half
showing.”
tion raised
Id.
statistical
1980),
up
made
26.3%
August
1978 to
blacks
“Once the
substantial
defendant has shown
jurors
regulars
who
grand
served
underrepresentation
group,
he has
alternates.
prima
made out a
facie case of discrimina-
hearing,
showed
At the
the State
tory purpose, and
the burden then shifts
grand
names in the
eighty percent
Id.,
to rebut
that case.”
from the
wheel consist
names drawn
*7
noted,
at
97
1280. It should be
how-
S.Ct.
wheel,
by re-
jury
compiled
which is
petit
ever, that “a
case is
in a criminal
drivers’
ferring
registration
to voter
constitutionally
not
to demand a
entitled
licenses;
selection
that at no
phase
the
proportionate
of his race on
number
present
of race
indicators
process
which tries
the venire or
jury
him nor on
cards, ballots,
questionnaires
the
any of
from
jury
jurors
roll
which ...
are drawn.”
names.
jurors’
eligible
which contained
202, 208,
Alabama,
85
Swain
380 U.S.
testified there
judges
Numerous circuit
824, 829,
(1965).
13
Nor
S.Ct.
L.Ed.2d 759
jurors
selecting
uniform method for
no
right
does he have a
that mem-
to demand
venire,
look for
but
did
they
that
from
grand
bers of his race be
included on
such as
juror,
in
qualities
grand
certain
that
v. Louisi-
indicts him. Alexander
maturity,
responsi-
than
“greater
average
625,
1224,
ana,
1221,
628,
405 U.S.
92 S.Ct.
in
administration
bility and interest
”
course,
is,
leadership
910 recently This recognized
nor its inherent
discrimi-
Court
“opportunity”
nate rises to a
constitutional viola-
has
per
Supreme
se
“United
Court
held
States
Texаs,
agree.
tion. We
v.
347
Hernandez
that a
a state court
criminal defendant
475, 478-479,
667, 670-671, 98
U.S.
74 S.Ct.
grand
has a
have the
constitutional
Garrett,
(1953);
L.Ed.
627
866
State
jury considering his
from a
case selected
at 638.
S.W.2d
the community.”
fair cross-section of
Garrett,
637
proved
pur-
The State’s evidence
that no
1982).
a fair
viola-
prove
“To
cross-section
poseful
attempted
discrimination
occurred, the
must show
tion has
carried out. Rebuttal evidence may proper-
a
(1)
group
excluded is
‘distinctive’
ly
testimony
government
include
from
offi-
repre-
(2) group
community;
within the
concerning
cials
of
qualifi-
the methods
and
rea-
this
not fair and
group
sentation of
is
selection,
cations for
it
but
should be
of
number
such
“great
with a
sonable in relation
judicial
viewed
deal of
scruti-
the un-
Partida,
(3)
and
ny.”
persons
community;
Castaneda v.
at
U.S.
at
ex-
systematic
97 S.Ct.
1282. This
is due
recently
derrepresentation
Court
examined testimony similar to that offered
selection
group
clusion of the
in this case and
prove
held that
it did not
Missouri, 439 U.S.
process.” Duren v.
prejudice or discriminatory intent in select-
664, 668,
(1979).
9H 565.014.1, factually substantiates the verdict. 565.- man § Section dates that this Court review the sentence of 014.7. death when it is 565.014.- imposed. Section judgment The is affirmed.
3, provides as follows: sentence, “With regard to the su- WELLIVER, RENDLEN, MORGAN and
preme court shall determine: HIGGINS, JJ., concur. “(1) Whether the sentence of death was SEILER, J., separate in dissents dissent- imposed under the influence of passion, ing opinion filed. factor; prejudice, or any arbitrary other BARDGETT, J., and concurs in dissents and SEILER, separate J. dissenting opinion “(2) supports Whether the evidence jury’s finding of a judge’s statutory Execution for October set aggravating circumstance as enumerated 565.012; in SEILER, section Judge, dissenting.
“(3) Whether the sentence of death is I respectfully dissent. The defendant excessive or disproportionate pen- to the ground be executed on the sole cases, alty imposed in similar considering against a murder was committed both the crime defendant.” in peace engaged perform- officer while The record in 565.012.2(8), this case demonstrates that ance duty, of his official § the death imposed sentence was not under without in the trial any stage the influence of passion, prejudice, or any defendant being required to find that knew other arbitrary factor. or should the victim was a have known that member of the class described.
The jury found aggravating as an circum- stance that the “capital murder was com- This regardless is to be the outcome mitted against peace officer ... while [a] purposely the fact was the victim dis- engaged in the performance of his official guised people so that would know he duty.” 565.012.2(8). The sup- evidence § police duty. impres- was a officer on ports the jury’s finding. deliberately upon sion to be made sought private the victim was a others was that
Finally, consideration must be given to
сitizen. Detective Erson
dressed
whether the sentence of death is excessive
clothes,
jeans
street
blue
and a baseball
disproportionate
the penalty imposed
cases,
jacket.
similar
unmarked car.
taking into account
He sat in an
His
wallet,
police badge
sight
the crime. This is the first
was out of
case in which
this Court
reviewed the which
in Erson’s
another officer discovered
imposition
penalty
radio,
of the death
on the basis
pocket.
police
back
The miniature
of the aggravating circumstance in
seat,
565.-
found
on the car
by the same officer
012.2(8).
involving
aggra-
Other cases
body.
Erson’s
Er-
partially covered
vating
circumstance and which both the
gun
son’s
holster was concealed beneath
death penalty
imprisоnment
and life
pants leg.
testified that he did
Defendant
Thomas,
submitted
are: State v.
know that he was a
know the victim or
(Mo.1981),
No issue as to the victim
a
been
being
peace
to find
intent under assault
quired
such
knowledge
officer on
or defendant’s
duty
repealed
present
Both
statutes.
under
jury
thereof
to
in the
submitted
the
obstructing justice
assault on officers
stage
dealing
guilt
first
of the
with
or
trial
penalties
(which impose
statutes
maximum
Capital
innocence.
murder was submitted
execution),
legisla-
less
the
far
severe than
15.02, in
under
the standard MAI-CR2d
the
know
required
ture
that
which,
course,
simply
of
the victim was
police
a
to
found
his victim is
officer
be
name,
to by
anything
referred
without
be-
See, e.g.,
guilty
aggravated
of the
offense.
ing
as
being
said
to the victim
an officer or
557.220,
557.200, 557.210, 557.215 and
§§
whether defendant
that the vic-
was aware
1977);
(repealed
V.A.M.S.
RSMo
tim was an officer
duty.
on
575.150, 575.160,
The earli-
RSMo 1978.
§§
trial,
stage
In the
the
when it
second
of
used the term
er versions of the statutes
deciding
punishment
came to
whether the
but
“willfully”,
“knowingly”,
rather
than
a
possibility
would be
life sentence without
re-
language
court
to
construed
death,
of parole
years,
jury
“necessary
for 50
a
element
quire knowledge as
conviction under
557.215”
State
only
§
instructed
to determine whether
(Mo.App.1979).
Copher, 581 S.W.2d
a
against
peace
offense was committed
court found reversible
appellate
There the
engaged
performance
officer while
fully
failure to instruct
error
the state’s
his
duty. Nothing
official
was said about
knowledge.
The court
on
elеment of
knowledge
part
of defendant. That
argued for
correctly
found that defendant
part of instruction No. 19 read as follows:
element when
knowledge
inclusion
In determining
punishment
to be
557.215,
under
since
instructing
§
assessed
for the
against
the defendant
separate
a
and distinct
statute makes it
Erson,
Gregory
you
murder of
must first
engaged
police
crime
assault a
officer
determine:
unanimously
duties.
performance
his
ordinarily
a ... misde-
What would
be
per-
a
if the
felony
meanor ... becomes
2.
Gregory
Whether
the murder of
police
is a
officer
willfully
son
assaulted
Erson was
of-
against
peace
committed
a
his
as
engaged in
duties
such.
engaged
ficer while
in the performance
that “knowl-
Id. at
The court concluded
duty.
of his official
It was the official
person
assaulted
a
edge
duty Gregory
investigate pos-
Erson
necessary
is a
officer
in his duties
engaged
sible
in an area
prostitution
incidents
conviction under
557.215.”
§
element
Louis,
as
capacity
of St.
1501;
see 18
but
Id. See also U.S.C. §
Metropolitan
an officer of the
Louis
St.
111;
States
compare United
§
U.S.C.
Department.
Police
Feola,
1255 at
671 at
thus was authorized to assess
(noting
penalty
undisputed
death
fact
on
under
knowledge may
a relevant factor
on
duty.
the victim was a
officer
111;
statute,
U.S.C.
the federal assault
required
should have first been
the defendant
require
which does
find whether defendant had actual knowl-
officer);
an
United
know
victim is
edge
undisputed
of this
fact. We are not
(5th Cir.
Young,
1. See also instruct element. 1982), knowledge Although specify in which this court reversed con- the statute did 195.250, element, 195.170(1) held that 562.021.2 §§ victions under court §§ 562.026, permitted court RSMo because the trial court failed to *11 deciding It matter whether a principal does de- opinion The devotes scant atten- a killing fendant should suffer death for to the mens aspect aggravat- tion rea police he realized or should officer whether case, ing circumstance in this dismiss- found doing. what he have realized that was was it as ing stating “inscrutable” an unknowing It is self-evident that assault there was sufficient evidence from which it a reprehensible on an officer is than less be could found that knew defendant knowing assault. police victim was a officer. The latter is however, the point, beside because whether criminal, When an act is made “the exist- there is sufficient is not the issue: evidence ence of a is regarded criminal intent to be should have been instructed on the essential, even when not in terms re- question of knowledge defendant’s and al- Hefflin, quired.” State 338 Mo. lowed to make its determina- own factual S.W.2d a is Before statute This tion. was not done. construed so as eliminate intent or to offense, knowledge as an element implication The principal opinion legislative clearly do so intent to must be (with which I a agree) knowledge is that is Gordon, apparent. necessary particular aggra- element for this (Mo.App.1976); McLarty, State v. vating clearly circumstance to exist (Mo.1967). The mere ab- legislature By intended such. making the “knowingly” sence of the word does not killing of a police duty officer on an aggra- negate the see Moris requirement; intent circumstance, vated which the death States, sette v. United 261- penalty assessed, could be the legislature 240, 248-250, 96 L.Ed. striving protect police to officers through the threat punish- of enhanced deeply ment. The notion of rea is rooted in Where the mens perpetrator has no such jurisprudence. American American crimi- knowledge, he could be deterred nal long joined guilty law has act with penalty deаth The possibility. legislature the guilty consistently mind and has re- be must taken to have realized that an to quired to be conscious be wrongdoing unknowing assault could not be more repre- States, criminal. Morissette v. United hensible morally than if the victim had 251-257, 72 243-246. this Today, S.Ct. at been, as testimony defendant’s indicated he tie, a court seeks to and sets sever believed, private a citizen. dangerous precedent by interpreting 565.- prosecution’s The argument pun- at the 012.2(8) knowledge as not as an requiring phase ishment enlightening point. element circumstance. aggravating of an prosecutor openly acknowledged that likely This defendant will executed for had to find the element of knowl- entirely fortuitous circumstance that edge, and argued erroneously they al- viсtim, dressed in civilian who was ready had: all appearances clothes and who to The other aggravating factor [is that] be, citizen, private turned out to unknown they officer, knew he police was a defendant, officer. For these obviously, you in your found that initial reasons, and re- I would vote reverse verdict.... why That’s he was killed. punishment mand for a new trial on the permitted penalty should have been issue or would reduce the to life imprisonment fifty in mitigation parole consider without did years. know a police victim was officer. But the jury had no reason believe this material, relevant because all to find
had under the applicable instruction
was that victim was a officer. is contrary
This to what the statute intends. so, dispense knowledge requirement with intent to did not in that case. Id. at do as it only dearly legislative if the statute indicated