*1 (R.C. 1835, p. 214), murder, to first punishments prede- degree a it is different offense, cessor of 556.220. The 1835 statute like- with different elements. Defend- provided may wise find charged ant was degree with second guilty degree defendant the of- murder constitutionally warned that he charged fense “inferior to indict- could be of it amended convicted under the said: ment.” The court against information filed him. “There can trial, no or punishment fourteenth section could not have conviction for a “[T]he crime dispense to without formal and sufficient accu- been intended with the rules a law, add, sation.” v. 341 Mo. may McKinley, and I State common allegation justice, S.W.2d common
proofs correspond. must If the inferior if murder an Additionally, requires intent offence, degree of of which the party is kill, to legislature then the cannot define it convicted, allegations be included in the kill, although intent is indictment, a conviction of such exactly attempted present what is in the degree inferior consistent with estab- degree degree murder statute. Second lished But if principles. the other of- murder, require kill, which does an intent to totally nature, fence a be of dissimilar grade cannot be an inferior of an offense and no in the count indictment contains kill, requires which intent simply no be- any description of the inferior offence cause the is also latter called murder. proved, judgment no could be I degree would reverse murder against upon proof. the defendant such conviction. If, example, charges indictment a forgery degree, in the second which our
statute declares consist in counterfeit-
ing coin, passing or in attempting
pass coin, such the defendant cannot be
legally convicted of forgery the third
degree, making which consists in false intent, entries in books with fraudulent Missouri, Respondent, STATE of &c.” Here the offense which was defendant degree convicted —second murder —is a BASKERVILLE, Appellant. L. totally dissimilar nature from offense No. 61661.
with which accused. was con- victed Missouri, of an requiring offense a definite Supreme Court of intention acquit- to kill the victim. He Division No. 2.
ted of the offense with which he was June 1981. charged and which convicted of one with was not charged. I do not this can believe
constitutionally be done and I not believe do permit statute purports
jury to find of an offense defendant charged
different but which is from charged
said to be “inferior to that
indictment” can make it constitutional. something “inferior
Designating charged in the indictment”
give anymore notice it than
designating “superior it to that would. indictment” Whether second
degree or “superior murder “inferior to” *2 Nation, City, appel- for
Lee M. Kansas lant. Green, Ashcroft, Gen., Atty. Kristie
John Gen., respon- City, Jefferson Atty. Asst. dent.
STOCKARD,
Negro
Commissioner.
believed the killer
“a
male six
two,
build,
complexion,
foot
dark
who
thin
charged by
L. Baskerville was
in-
full-length
jacket
wore a
black leather
formation in lieu of indictment
in three
Ricky,
the first
was an
name
[and]
capital
by shooting
counts with
murders
amateur boxer.”
also stated that on
Harris,
of Vicki
James
and Ernest
*3
three days
November
which was
jury
Booker. He was found
by a
of
homicides,
males,
Negro
the
“two
one
the murder
in each
and
count
the
person
Ricky]
referred to
and the
[the
jury imposed
imprison-
a sentence of life
* * *
light complected
other
described as a
(Vicki Kanion)
ment as
Count I
to
and
male,
Negro
were at
victim’s house at
the
(James Harris),
Count II
but were unable to
the time he
was at the house.”
[Watson]
agree
punishment
on the
as to Count III
Singleton
At that
Officer
the
time
knew
(Ernest Booker),
punishment
and the
as to
with
victims had been shot
a .22 caliber
by
that count was fixed
the
at
life
weapon,
party
Watson
that
and
said
the
imprisonment.
the
he
with
knew
had a .22
appeal appellant
On this
does not chal-
him,
caliber
with
automatic
but
that
the
lenge
sufficiency
the
of
evidence as to
party
carrying
he was
pistol
stated
any of the counts.
It is sufficient
to state
Ricky.
Singleton
When Officer
Wat-
and
reasonably
that
could find from
police
photo-
son arrived at the
station some
Cypress
evidence that at 4522
Street
Watson,
graphs were shown to
and he iden-
Missouri,
City,
Kansas
on November
photograph
appellant
per-
tified a
of
as the
appellant
killed
by
James Harris
shoot-
Ricky.
Singleton
son he knew as
Officer
ing him, and that he also shot and killed
previously spoken
appellant
had
to
concern-
Vicki
the sister of James Harris.
ing
case,
an unrelated
and at
time
that
Booker,
He then
and
shot
killed Ernest
appellant
wearing
long
black leather
small
child Vicki Kanion who apparently
jacket
he
and indicated that
was involved in
was attempting to hide under a table.
boxing program.
the Golden Gloves
By
point
his
appellant
asserts
per-
Officer Williams interviewed three
trial
admitting
court erred in
into evidence
sons,
them,
and
one
from
Jack-
Michele
“statements obtained” from
“during
son, he received the information that her
the November
and
November
brother,
Jackson,
Todd
had told her that
police
(a)
interrogations”
“Mi-
because
appellant
been at
home
eve-
his
on the
*
**.
given
randa
were not
until
ning of November
and had stated
after potentially incriminating statements
he
El-
had committed the homicides.
obtained, despite
were
the fact
fonso Brown verified what Michele Jackson
nature,”
interrogation was custodial in
had told the officer.
(b)
the Miranda
assigned
Officer
to
Patrick Stark
pertained
were
to
investigate the murders. On November 19
and resulted from evidence which earlier
physical
he searched the area for
evidence
was wrongfully obtained.
and talked
several
people
to
the area.
The police
investigation
conducted an
morning
appellant
On
of November 20
murders,
doing
and in
so searched the
Headquarters
was at
question-
Police
“for
They
area for physical evidence.
ing on
poly-
another offense” and to take a
neighbors
talked to
did
any
not locate
graph test. The
record
not disclose
potential witnesses. On November 20 Offi-
whether or
he
voluntarily gone
to
cer Singleton
was contacted
Michael
the station.
Watson
stated
he had
heard the
him,
After
briefing
morning
he
on the
No-
wanted to talk to
ar-
ranged
Singleton.
vember
was assigned
to meet Officer
Watson
Officer Stark
to
Singleton
then
interview
He started
appellant.
question
related
Officer
he
good
o’clock,
people
“a
idea who had killed the
at
time
11:30
at that
house,”
stated
information Officer Stark had of
[the Harris]
appellant’s possible
involvement
before Miranda
Questions
was that appellant “may
given.
homicides
asked
[have
* * *
Harris
James
or had been
officer concerning
investigation
known]
his
Harris’
house.”
aware
learned. He
that he
stated
the information that had been obtained
talked with
on the second floor of
Singleton
Officer
Williams.
Headquarters,
Police
he “ques-
and that
knowledge
tioned him as to
his
asso-
[of]
suppress any
filed a
motion
victims,”
and ac-
ciation
at
statement made
him to Officer Stark
Stark,
cording
“volun-
(a)
“was not
because
* * *
teered that
that he had
information
right
his
advised of his
to remain silent and
* * *
present
day
on
right
presence
until after sev-
counsel
questioned
victims were found.” He then
eral hours of
Detective
*4
Stark,
appellant “regarding
presence
made
his
at or near
and after statements
been
cause,”
(b)
scene,”
[by
regarding this
and
and
atmo-
he asked
him]
“[w]hat
interrogation
investigative
house,
sphere
occurred “after
was at
who else was
* * *
* * *
collectively
officers
received suf-
present,
general questions
and
toas
probable
ficient
establish
information to
Mr.
Harris’ associates.”
did not relate
appellant’s arrest. The trial
cause” for
answers.
In
course of
hearing
pre-trial
a
on this
conducted
appellant stated
motion.
leaving the
resi-
gone home after
Harris
-20 at approximately
dence on November
in
point
does not set forth
his
later,
we
appears
3:30 o’clock. It
portion
in
of his
what
argument
or
brief
tell if it
after the
cannot
was
or
incriminating
statements”
“potentially
warnings,
he
appellant stated that
prior
giving
from him
to the
obtained
gone
gone
home but
straight
had not
warnings,
particularly
of Miranda
and
im-
during
It was
Todd Jackson’s house.
portant in the circumstances
this case
was advised
time that Officer Stark
appellant
not
in
fact that
did
contend
appellant
Singleton
“had
his
he
not
motion to
days,
to Mr.
two
or the
appeal
Harris’ residence
contend on this
statement
him,
homicide,”
Wednesday prior
involuntarily
was
that he
made
right
appellant
to have
also received information that
“or
wanted but was denied the
fact,
gun
some inter-
had a .22 caliber
present.
counsel
someone
Stark,
rogation
possession
the information
on the 15th.” Officer Stark
by Officer
their
related
received from Offi-
“if he had been at the
appellant
was
then asked
* * *
Williams, and it
Singleton
previous Wednesday
pri-
cer
and Officer
house on the
was
which caused Officer
he
that information
he indicated that
homicide” and
appellant under arrest
place
Stark to
the first
had. Officer Stark testified that
rights.
Immedi-
ap-
his
“incriminating
concerning
advise him of Miranda
information”
appellant signed written
ately thereafter
pellant he had
was from Officer
received
rights
waiver of
those
had admitted
appellant
Williams that
then continued.
the homi-
Todd Jackson
had committed
was at this time
he informed
cides. It
deficiency
Notwithstanding
arrest,
he did
appellant he was under
because of the
point
presentation,
and its
further until
question appellant
not
and in
seriousness of the offenses
writing
rights.
his
waived
discretion,
judicial
we
liberal
exercise
studied the evi-
carefully
have read and
motion to
The trial court overruled the
hearing in
presented
pretrial
dence
at the
“I
doing
so
suppress, and
commented:
suppress.
support
motion to
general
believe in this case there was a
time, albeit,
at the
investigation ongoing
to determine
extremely
It
difficult
custody
oth-
may have been
for some
pretrial hearing
there
testimony at the
from the
* *
to er
*.”
by appellant
purpose,
statements
From the record before
Assuming, however,
us we can
the in
terrogation
did
comply
determine whether
with the techni
being
Arizona,
cal requirements of Miranda v.
custody
held in
because of the other and
U.S.
covery
challenged
evidence has “be
Our review of the trial
come so
ruling
court’s
attenuated
as to dissipate the
States,
taint.”
on the motion
Nardone v. United
suppress
308
limited to
U.S.
338,
266,
60 S.Ct.
(1939).
L.Ed. 307
A
determination of whether the evidence was
exception
is that
the exclusionary
sufficient
to sustain
finding.
its
State v.
rule
application
has no
when knowledge of
Collins, 519
(Mo.App.1975);
S.W.2d 362
illegally
gained
obtained evidence is
Duncan,
(Mo.App.
S.W.2d 130
independent
from a source
of the illegality.
1976).
States,
Silverthorne Lumber Co. v. United
supra. As far
we
as
can tell from the
Police officers
required
“are not
record
by
appel
administer
warnings
to everyone
lant to Officer
Stark
the Miranda
they question. Nor is
requirement
given,
possibly
which could
warnings to be imposed simply because the
any
indicate
by
involvement
him in the
questioning
place
takes
in the [police] sta
homicides,
(a)
were that
he knew one of the
house,
tion
questioned
or because the
victims
acquainted
and was
with the other
is one whom
police suspect.” Oregon
two;
(b) he had been at the scene three
Mathiason,
429 U.S.
97 S.Ct.
crimes;
days prior
(c)
to the
Because at trial. testimony was not motion hearing, we turn to the tion advanced of Officer testimony objection The was not the basis of an and it by ap- concerning statements objection testimony. Stark of the to the admission reasons set out was “for the pellant event, However, contention is when and that suppress,” pretrial motion without merit. appellant on “spoke with” States, 371 U.S. Wong v. United Sun various [apparently the “they November 20 (1963), 9 L.Ed.2d possession” the in their police officers] “ evidence is ‘fruit that not all stated had told Todd information that because it simply tree’ poisonous the homi- he had committed Jackson for the light come to would not have of Officer testimony From that cides. police.” The court illegal actions of the which state- determined it cannot be Stark apt question” more out that “the pointed made before appellant were ments of “ ‘whether, granting estab- such a case the Miranda warn- which were made evi- primary illegality, the lishment of the following day ings. On November * * * has objection made dence to which Stark, appel- by Officer illegal- exploitation of that been come at Carroll interrogated lant was sufficiently means distin- ity or instead warnings. the Miranda gave primary guishable purged to be a written waiver of signed Appellant then ” taint.’ contention that this there is no rights and under- voluntarily and waiver previously stat- opinion, We are of the made, the statements standingly or that ed, warnings were the Miranda When Offi- voluntary. were not required. In that they soon as objection testified at trial cer Carroll event, of the “fruit of the doctrine pretrial out in the “for the reasons set However, apply. poisonous tree” could *6 men- and the reasons motion to given they should have been assuming that when Officer Stark tioned earlier assumed, prejudice no earlier as testified to testify.” He then called resulted, exploitation of there was no to him statements made the Miran- obtained before the information out as we have set everything included It was when Offi- given. were da him to Officer Stark said appellant’s prior of was informed cer Stark given. warnings were Miranda persons to third guilt of made confessions the ad circumstances Under these given were that the Miranda above any of the in evidence of mission information was thereafter incriminating to Officer by appellant completely coop- Appellant was obtained. warn receiving the prior to Stark employed erative, means were improper no any reasonable beyond ings was harmless officers, is no con- and there California, 386 U.S. Chapman v. doubt. See made subse- any statement tention that 828, 824, 705 17 L.Ed.2d 87 S.Ct. to the Miranda quent not contended are (1967). Those statements conclude that voluntary. We completely involuntary, and to be incorrect poisonous of the “fruit of the doctrine to other statements cumulative facts of applicable to the tree” is not Miranda warn received made after he case. waiver. written signed ings and had remaining point is Appellant’s contends that sustaining the State’s court erred in to Officer Stark by him statements veniremen be of five challenges for cause received the Carroll and Officer and did to serve “qualified they cause exclud have been warnings should any circum inability, under not indicate an We tree.” poisonous “fruit of the ed as of death.” stance, a sentence to vote for was no is that there our view first that note
845
The
substance of
contention is
The case before us involves three counts
prohibition
that we should extend
capital
sought
murder. The state
veniremen,
against disqualification of
while
penalty
jury,
finding
death
but the
general objections
capital punish
voice
murder on
capital
defendant
each
ment,
penal
counts,
to this
rejected
case which the death
pen-
the three
the death
ty
imposed.
Witherspoon
alty
counts,
See
v.
imposing
as to the first two
Illinois,
1770,
391 U.S.
88 S.Ct.
20
imprisonment
pa-
sentence of life
776
L.Ed.2d
We need
set forth
role
probation
fifty years
for
as Count
given by
II,
answers
the venireman on voir
I
agree
and Count
but was unable to
on
dire,
opinion
but we are of the
that the five
punishment
as to Count III. The trial
court,
who were excused as the result of chal
565.006.2,
per
imposed
sen-
lenges by the
were properly
State
excused
tence
imprisonment
pa-
for life without
pursuant to the rule announced in the
probation
With
role or
fifty years
for
on Count
But,
event,
erspoon
case.
the United
III.
Supreme
States
Court and this Court have
principle
accord with the
keeping
rejected
each
an extension of the Wither
record of the facts of these cases as the law
spoon-type restrictions to cases where the
area,
up
built
in this
following
con-
death penalty
imposed. Bumper
is not
v.
densation is
of what was before this
Carolina,
North
391 U.S.
jury, which in two instances chose to assess
(1968);
Wallace,
L.Ed.2d 797
punishment
parole
at life without
(Mo.1973),
S.W.2d 67
cert. den. 419 U.S.
fifty years
rejected
penalty,
death
(1974);
42 L.Ed.2d
S.Ct.
State
which,
instance,
in the third
was unable
Borden,
(Mo.
1980).
The is affirmed. defendant, year male, a nineteen old black
using
pistol,
a .22 caliber
murdered three
PER CURIAM:
black victims. He shot James Harris
(Count II) apparently because he wanted a
foregoing opinion
STOCKARD,
The
gun that Harris had. Harris was shot once
C., is adopted
opinion
as the
of the court.
in the back
and once
the head. His
sister,
Mrs. Vicki
a medical student
WELLIVER, JJ.,
HIGGINS and
concur.
*7
(Count I),
running
came
into the room
SEILER,
J.,
P.
separate
concurs in
con- where her
brother
been shot and de-
curring opinion filed.
fendant shot her in the head. Mrs. Kan-
SEILER,
son,
Presiding Judge,
year
ion’s seven
old
concurring.
Ernest Booker
(Count III)
out
came
from somewhere and
I concur in the affirmance
judg-
called out defendant’s name. Defendant
ment,
case,
but this is another
as were State
said,
too,”
“I
going
you
am
to have to kill
Holmes,
(Mo.1980)
defendant”, 565.014.3(3),' RSMo our
opinion must contain a statement
facts, though penalty even assessed was
life parole probation fifty
years rather than death.