*1 Missouri, Respondent, STATE of
Martsay BOLDER, Appellant.
No. 62362. Missouri,
Supreme Court of
En Banc.
July 1982. Aug.
Rehearing Denied
WELLIVER, Judgе. mur- was convicted 1978,1 565.001, and the der, RSMo § 565.- pursuant § him to death sentenced orig- jurisdiction has 008(1). This Court V, 3. Our art. appeal. § inal Mo.Const. al- both consideration includes review review of the errors and leged trial affirm both We sentence. 565.014. the sen- murder and conviction tence of death.
I Missouri in the offense occurred Appellant Bolder Penitentiary. degree mur- for first serving a life sentence der. approximately 3:15 March
On Giboney m., Kenneth vocational teachers p. truck returning by Luecke were and Arthur they came University. As from Lincoln *5 A B as 5 & building identified around the and the maintenance headed toward and ap- what shop, Giboney observed machine and told fighting two inmates peared to be got men truck. Both stop Luecke to from the thirty feet out of the truck some inmate, later They saw an altercation. King, lying against identified as Theron A sitting position. partially wall in a inmate, appellant, as later identified second making strik- King and standing was over King’s toward stabbing motions ing or trying King appeared to be stomach. attempt get in an from side to side move in- third An unidentified way. out of the or three within two approached to mate back with dropped and then pair feet of the iden- The inmate later his in the air. arms up, backed straightened appellant tified as toward then headed away King, from and building. No 5 A & B the entrance of the present at were known to be others a Luecke saw Giboney nor scene. Neither Levine, City, appel- Lori Jefferson for J. at the time. weapon lant. B for the 5 A & headed appellant As started entrance, King rose and Ashcroft, Gen., building Nancy Kelley Atty.
John shop. and machine Baker, Gen., the maintenance City, Jefferson toward Atty. Asst. and King’s T-shirt blood on Luecke saw respondent. statutory indicated. unless otherwise references are to RSMo 1978 1. All pursued appellant back, the 5 A on building into & B tion a one and one-half inch not more than fifteen seconds behind him. wrist, right laceration on his three Johnson, Burt another officer corrections long inch stab in his wound abdomen. scene, who had arrived at the also entered Dr. at the hospital Doerhoff arrived with- building pur- and ascended the stairs in forty-five stabbing. minutes after the appellant. suit of When reached Johnson cava, King’s inferior vena which carries top steps he saw stand- intestines, kidneys, from the legs, blood ing wiping behind a desk and blood off his heart, liver to the was lacerated with a hands handkerchief. was stabbing. Dr. Doerhoff had massage wearing green jacket and a trousers red King’s heart with his hand in order to start type Luecke had seen man same on the pumping again. Because of the serious- standing King over and making stabbing wound, ness of the Dr. Doerhoff held the at motions him. Bloodstains on inferior vena cava shut with his hand while King’s were of same type clothes King was moved the operating into room. appellant, blood. Johnson frisked no found King was in surgery about an hour and weapons him, on took him back down- minutes, during given fifteen which he was stairs. pints twenty-four thirteen of blood and weapon A was search conducted in the pints of other fluids. stabbing. weap- immediate area of the No Dr. Doerhoff testified that such serious scene, on found outside but a injury to the inferior vena cava fatal plastic bag clear stained with blood ninety percent of the time. emergency The type same as King’s nearby. was found great so that Dr. did Doerhoff contained, plastic among folder other believe he had time to establish sterile things, paper appellant’s per- inmate condition and save King’s still life. He correspondence. sonal Prison officials performed operation King found knife with fresh blood the 5 on it in wearing cap, a mask although he did building padlocked A & B behind a set of gloves. sterile surgical wear twenty metal doors fifteen to down a feet hallway and to left of the entrance King was then transferred to the Univer- entering. had been seen A seven- *6 26,1979, Medical sity Center. On March he eighths space separates inch the bottom surgery remedy pericarditis, had to an in- the doors from the floor. The was knife flammation of the sac surrounding the enough thin to have been slid beneath the King again heart. underwent surgery on doors. When investigation the area was 3, 1979, April because he had suffered a completed, appellant was the taken to of- heart attack. Various other procedures Lock, fice of Urban a penitentiary investi- were conducted in order to determine the gator, for questioning. apparent cause King’s infection in Jeffries, Officer Homer who had arrived 14, 1979, abdomen. On April King had a scene, King walking at the saw the toward operation prevent- fourth because infection shop. maintenance and machine He fol- ed the scar holding tissue from one of his King approximately lowed and reached him knife wounds closed. seventy feet from where he had been King April Lowery died 1979. Dr. stabbed and started to escort to him the Arnold, performed who autopsy the on hospital. prison traveling After about King’s body, in testified his medical feet, King go said he could no further. opinion King generalized died from a infec- King was then carried to the penitentiary caused by tion a stab wound to the abdo- on hospital Dr. Bow- stretcher. Richard men. King ers examined and called immediately Lock, Investigator returning surgeon, to his office King Dr. Doerhoff. was Alan duties, appellant from other found and the in shock when Dr. first saw him at Bowers hospital. guard brought ques- who had him King had a one inch lacera- there shoulder, right tioning. Investigator tion on his a two inch lacera- Lock saw red stains yard names. He left and returned clothing appeared to be appellant’s bag right plastic containing papers and appellant’s a cut on with the blood and saw knife, it right got put He correspondence. smeared blood on his finger index and bag, King wanted to and where appellant plastic asked if he returned to hand. Lock incident, re- he appellant King and what had Appellant talk about the was. asked Leroy earlier, Lt. “a plied King pussy- he wanted talk to and called him said Looten was and came Appellant pulled Looten. Lt. called out assed-nigger.” then Lt. Looten went into within minutes. King.2 knife and stabbed and, office, appellant’s request, Investi- closed the
gator Lock left room and II spoke less appellant door. Lt. Looten Appellant the trial court argues that minute, than thir- probably than not more overruling judgment motion for erred in his seconds, ty only him forty-five and told at the of the state’s evi acquittal close actually truth because would to tell the it submitting dence and in was be to do so. said he better instruction, directing verdict MAI-CR2d statement, thereupon and ready to make 15.02, because there was no credible evi into the Investigator Lock called back upon dence which the could have found rights, said Appellant was room. read (1) guilty stabbing cutting King, and him them, signed he a waiver. understood (2) intending King, knowing to kill promises, no evidence There was practically King’s he was certain to cause threats, other coercion. Nor was there death, (4) reflecting fully and cooly appellant under- any allegation that did not King upon killing doing before so. In as signed. Appellant waiver he stand the evidence, sessing sufficiency we before he was read his made no statement accept as true and infer must all evidence rights. refused to written state- He make a tend to verdict support ences that ment, in Lt. Looten’s he made presence all inferences to disregard evidence and Lock. Investigator an oral statement contrary. inquiry Our is limited whether oral Appellаnt’s statement offered evidence, light most viewed fa sentencing phase in the of the trial. state, support vorable to the is sufficient to Lock Investigator testified that Turner, the verdict. State v. 623 S.W.2d said the incident went back four to six 1981); Strickland, (Mo. banc King to when was his cell mate. months 1980). Appellant said that who mur- King knew single of a testimony witness tell appellant’s dered brother but would not identity is sufficient to establish the of a Lindsey him. Frank became cell defendant believes Thereafter, criminal if King mate after moved out. beyond a reasonable v. Tuck King began harrassing telling doubt. State *7 91, er, (Mo.1970); appellant Lindsey that were en- 451 S.W.2d 95 State v. others and Stockdale, 769, (Mo.1967); 771 gaging Appellant in homosexual S.W.2d activities. Williams, 133, Ap- said got he tired of such accusations. State v. 376 S.W.2d witness, pellant (Mo.1964). on walk- said that March 14 he was In this case not one two, ing appellant standing A B he saw building King to the 5 & when observed over King sitting making striking stabbing and another on the or motions inmate and ledge. They appellant King’s Appellant called as he names toward stomach. was Ap- an by, wiping walked and followed. found blood off his hands with a handkerchief; pellant being not called he said he did like clothes when shaped Investigator hearing Lock the on with a white handle and with a hole in recounted at however, suppress testimony, of the blade. the motion to that statement the end was not elicited the port, This sentencing phase appellant during said that he saw officers the of when trial, building Investigator he written walked into the 5 A & B and tossed and Lock’s re- may appellant may the knife. He said described the which not have included facts, long a homemade one inches was not admitted into evidence. knife as about ten these found type were of the same The evidence King’s support was sufficient to the wearing; assailant was and the stains on verdict.
his clothing were of blood of the
type
same
King’s. Second,
the knife wound in
Ill
King’s abdomen severed one of the major
Appellant
a number of
raises
constitu-
blood
body,
vessels in
and
killing
“[a]
challenges
tional
through
a deadly weapon
the use of
on a
statutory
procedures
Missouri’s
part
vital
for im-
of the victim is
body
suffi
it,
posing
all of which we find
permit
finding
cient to
of
meritless.
intent to kill.”
Strickland,
State v.
makes no
difference
died from an
A
infection resulting
stabbing
from the
rather
Appellant argues that the death sen
stabbing
than
from the
itself.
tence
punish
violates the cruel and unusual
legally responsible.
nevertheless is
See
eighth
ment clause of the
amendment and
Brandt,
948,
(Mo.
State v.
467 S.W.2d
process
еqual
protection
due
clauses
1971);
544,
Cooley,
State v.
387 S.W.2d
of the fourteenth
amendment
the United
(Mo.1965). Third,
the jury could have
He
argues
States
also
Constitution.
that it
found from the seriousness of the stab
I,
violates
process
the due
clause of Art.
appellant
wound that
knew he
practi
10, the
punishment
§
cruel and unusual
cally
King’s
certain to cause
death. Final-
I,
clause of Art.
and the
ly, the
“natural
§
beyond
could have found
I,
right to
life” clause Art.
2 of the
§
reasonable doubt
the killing
occurred
Missouri Constitution. Our
premeditation
deliberation,
after
discussion in
which
Newlon,
State v.
may be
627 S.W.2d
inferred from
612-13
circumstances of
cert,
(Mo.
1982),
homicide,
Strickland,
petition
filed,
for
(U.S.
5, 1982) (No.
May
81-6660),
S.W.2d at 394.
U.S.L.W.
present
Premeditation is
equal protection claim,
whenever the
answers all but
defendant thinks about the
time, id.,
find,
any length
act for
and we
cannot
however
does not
short,
Wood,
offer,
sustaining
State v.
a reason
it.
We see no
denied,
banc),
cert.
accept appellant’s
101 reason to
invitation to
(1980),
inference drawn reasonably from the evi Appellant contends that the sentencing dence surrounding and circumstances hearing, separated guilt phase from the Appellant’s act. Id. statement was not trial, 565.006(2), unconstitutional during before the jury guilt phase unduly because burdens his decision trial, but the nevertheless could whether to in his testify own behalf in have premeditation found from the facts against violation of privilege self-in- the attack occurred in an area not crimination conferred the fifth towers, amend- visible guard prisoners from the are ment; (2) adequate it denies him assistance weapons, carry allowed to and there counsel, in contravention of the sixth was no King evidence of bruises either amendment, because there is inadequate that would indicate that an prepare punishment time to preceded altercation stabbing. phase Those *8 of might déliberation, factors the trial but, guilt also indicate after conclusion of the event, phase; in any (3) and is provoca “cooling evidence of there no off” “[w]ith period tion lacking, previously guilt the between punishment demonstrated the and intent provided phases permit jurors to kill “to objective, deliberation.” State the an Sturdivan, 139, 142 unbiased, (Mo.1973), unprejudiced S.W.2d examination of the grounds, overruled on other State v. Ander factors in assessing pun- must consider son, 1974). S.W.2d ishment.” sentencing strategy choose betwеen his and respect to the
Appellant argues guilt in order testifying during phase the that the statute “extends first contention his We fail jury story.” those that the does hear pre-sentence hearings only to criminal impinges upon appel- how charged with and convicted of to see the statute defendants not to murder,” testify right lant’s even if it does “impossible is to capital whether, and predict be indeed burden his decision opportunity whether an will case, to when, explain testify. The facts in this mitigate to or after the available furthermore, support theory or do not a guilt phase whether should defendant] [a during deprives the of effective testify phase to insure that statute by restricting his stra- evidence reaches the finder of assistance of counsel mitigating cap- fact,” tegic options.3 Appellant, and that a “is to convicted of defendant forced plain posed. argues capital murder in which the 3. The state that under the lan- In cases penalty may imposed by jury guage be be a or of 565.006 would entitled § judge sitting jury, presentence hearing regardless of a additional to a which without the procedure guilty rights, provided that his in 565.012 shall crime-he was found therefore, and section abridged. jury, judge way can in no be The or in cases be Section followed. the by provides: judge, tried fix a a shall sentence within 565.006 by prescribed judge the impose law. The shall upon limits 1.At the conclusion of all trials by jury fixed the sentence the or capital indictment or information for murder cannot, judge. jury jury, If within a reasona- by argument the of heard a and after coun- time, agree punishment, judge court, ble to the proper charge the sel and from the the impose jury guilty shall law; sentence within the limits of the shall retire to consider a verdict of that, except judge guilty any the shall in no in- or not punishment, without consideration of when, ascertain, impose by stance cases upon the death in and their verdict by jury, jury agree guilty capital a the cannot the of tried whether defendant murder, degree, punishment. in murder in the fírst murder the degree, manslaughter, appeal or not 3.If the trial court is reversed on the second only any nonjury presentence guilty capital in error the of offense. In because of hearing, cases, may trial which murder the court shall likewise first the new be ordered finding guilty only punishment. guilty apply a or not shall to the issue of consider of with- Moore, (Emphasis added.) any punishment, by In State consideration of and out its verdict is ascertain, (Mo.App.1981), argued whether the the state defendant murder, capital just provides guilty opposite i.e., murder in that the of the first statute — presentence hearing only degree, slaughter, degree, murder in the second man- for ant is when a defend- any guilty charged or is of offense. with and convicted of not jury judge prevailed. Regardless returns whether 2.Where or a ver- murder—and appellant’s argument of meritorious, finding guilty provided question dict or of as in sub- is decide, section, expressly 1 of this the court shall re- we do not the state’s incon- section sume the trial and conduct a sistency presentence gives us cause concern. Further- more, hearing jury judge neglects point before or state out which H.B.251, by 565.006 amended § time the issue shall be the determination 80th Gen. Assem., punishment imposed. Reg.Sess., The of the hearing, subject to be In such 1st 1979Mo.Laws 634. evidence, September amended to the laws of version became effective 28, 1979, jury judge or additional the trial in case. The shall hear evidence before this extenuation, mitigation, aggravation changed and to read as amendment follows: subsection including any punishment, the record of prior of pleas upon guilty At the of all an indict- criminal convictions conclusion trials defendant, pleas ment by proper heard or of nolo contendere of the or informаtion murder argument any prior jury, absence such criminal and after of counsel or the convictions court, jury pleas. Only charge shall such from evidence guilty aggravation prosecution verdict not has made retire consider a or guilty any punish- prior consideration of to the defendant trial shall without known be cases, nonjury capital jury judge ment. admissible. The or shall also In murder finding argument by first or his coun- court shall likewise consider hear sel and the the defendant attorney regarding guilty guilty any prosecuting not consideration imposed. punishment. jury capital give punishment prose- In each to be case, attorney cuting open shall not instructions shall defendant the court included offense which could shall conclude the lesser presented judge. Upon supported be the evidence conclusion of the evidence and judge give jury ap- arguments, the 565.006(1), shall case. Supp.1981 (emphasis propriate RSMo add- instructions and the shall ed). language punishment deleted the to determine the be im- The amendment retire *9 murder, ital presentence hearing received a sentence at the same time it determines and thus was given opportunity guilt.
present
story
jury.
his
to the
He chose not
fact, appellant
to do so.
In
offered no
C
guilt
еvidence at all at either the
or sen-
Appellant next contends that
tencing phase of the trial.
the aggravating
circumstance
jury
Both appellant’s second and third
case,
found in this
capital mur
“[t]he
contentions concern the time between the
der was
by
person
committed
a
in .. . the
guilt and sentencing phases of the trial.
In
lawful custody
place
of a ...
of lawful
946,
v. Royal,
610 S.W.2d
confinement,”
565.012(2)(9),is
§
unconstitu
1981),
we rejected the claim that
tional
subjects
because it
prisoners because
phases
time between the
is insufficient for
of their status as such to a more severe
a convicted
to prepare
argu
defendant
penalty than it does other members of soci
ments for the sentencing phase. The ra
ety.
applied
tionale we
applies
in that case
Unless a statute creates a classification
equal force
third
that burdens
suspect group
a
impinges
or
here
jury
has an insufficient
time
upon
interest,
a fundamental
in which to
“we will not
“cool off” after
rendering a
overturn
varying
verdict of
unless the
guilty. We noted that
treatment
“rather
[it]
defendant,
than work a
hardship
groups
persons
on a
different
is so unrelat-
system
bifurcated
is ‘an
high
extension of a
ed to the achievement of any combination
”
procеss
order of the
due the accused.’
Id.
of legitimate purposes that we can only
at 950. The
Supreme
United States
Court
conclude
legislature’s
actions were
Gregg
153,
said in
v. Georgia, 428 U.S.
96 irrational.”
93,
Vance v. Bradley, 440 U.S.
2909,
(1976),
S.Ct.
238,
(1972)
S.Ct.
ply, although apply we do not that the trier of we decide whether it would finding guilty fact can return a verdict or amended version of § 565.006. *10 D The rational re personal rights.” damental lationship appro is therefore the standard is uncon- Appellant argues that 565.012 § gauge the constitu priate one which to (1) (1)(4), stitutional because subsеction 565.012(2)(9), tionality of and under this § sentencing authority the requires which passes muster. The United test the statute mitigating a sufficient consider “whether Supreme has noted that be Court States which circumstance or circumstances exist principal purposes” sides the “two social outweigh aggravating the circumstance “retribution and deter capital punishment, exist,” impermissi- circumstances found to by prospective crimes of rence bly places the burden on the defendant to fenders,” incapacita purpose a third “is the circumstances; (2) negate aggravating the dangerous criminals and the conse tion of jury required beyond the is not to find may quent prevention of crimes that aggravating that the cir- reasonable doubt Gregg otherwise commit the future.” outweigh cir- mitigating cumstances the n.28, Georgia, 428 at 183 & cumstances; (3) application the purpose 2929 & n.28. The latter is one 565.012(2)(9). ap In this case underlying statutory aggravating circumstances in sub- § already serving a life sentence pellant was section creates a new crime for which degree did for first murder. That sentence defendant can be convicted without first committing not deter him from a second being charged. legislature, adopting The murder. 565.012(2X9),reasonably could have con § Appellant’s argument respect penalty appropriate
cluded that the death
is
proof
burden of
is misconceived. The
imprisonment already imposed
when
does
aggravating
existence of one or more
cir
imposition
not deter
murder. The
outweighed by
mitigat
cumstances not
capital punishment
rationally
related
ing circumstances
does
mean that
obviously legitimate
to the state’s
interests
imposed
must be
automatical
in preventing
protecting
crime and
other
ly.
jury’s finding
that one or more
persons,
prison employees
such as
and other
statutory aggravating circumstances exist
inmates,
prisoners
with whom
come in con
requirement
is the threshold
that must be
tact.
can,
jury
considering
met before the
after
reject
For this
ap
reason we also
evidence,
all the
recommend the death sen
pellant’s
jury
exceeded
contention
jury
impose
tence. The
cannot
death if it
scope
charge when,
finding
of its
after
mitigating
finds that the
circumstances out
aggravating
circumstances that “the de
circumstances,
weigh
aggravating
prior
fendant has a
criminal conviction for
that situation
one which the
degree”4
murder in the first
and that “at
punishment is mandated. Under no circum
King
time of the murder of Theron
jury obliged
impose
stances is the
death.
[ljawful custody
defendant was in thе
of a
jury
required
“The
is not
to find
miti
confinement,”5
place
opined
it
gating circumstance in order to make a
“appears the life sentence
[that
of mercy
binding
recommendation
that is
already serving]
was no deterant [sic]
court,
on the trial
... but it must find a
jury’s
to further crime.” The
excess verbi
statutory aggravating circumstance before
not,
age
appellant argues,
an at
recommending a
sentence of death.”
tempt
aggravating
another
circum
find
Gregg Georgia,
428 U.S. at
was, rather, nothing
stance.
It
more than
Indeed,
jury
at 2936.
was instructed in
jury’s expression
of the rationale under
you
if
Instruction No. 21
decide
lying
statutory aggravating
circum
“[e]ven
mitigating
already
stance that it
had found.
that a sufficient
circumstance
circumstance,
nonstatutory
statutory aggravating
aggravating
4. This is a
circum-
5. This is a
565.012(2)(9),
could
stance that
could consider under
that the
consider
§
under
565.012(1)(1).
565.012(1)(3).
§
outweigh
circumstances do not exist which
the trial
sentencing
court’s
discretion is
*11
aggravating
circumstance or
guided
circum-
and channeled by
system
that
exist, you
stances found to
are not com-
focuses on the circumstances of each indi-
pelled
punishment.”
to fix death as the
vidual homicide and individual defendant
deciding
whether
penalty
the death
believe,
do not
con
We
imposed.
to be
tends,
that
requires
Constitution
that
258,
Id. at
96
at
S.Ct.
2969.
beyond
find
a reasonable doubt
aggravating
that
circumstances out
reject
We therefore also
weigh
mitigating
circumstances. Guilt
argument
application
that the
of the statu
must of course be established beyond a rea
tory aggravating circumstances creates a
Winship,
sonable doubt.
In re
397 U.S.
new crime for
which
can
con
be
90
(1970).
S.Ct.
The directions
can consider
those
judge
cases in which the
by the ...
statute are
sufficiently
penalty
imposed
clear
has been
under the
precise
26,1977.
aggra-
enable the various
law
May
effective
is not the
Such
vating
weighed
circumstances
to be
case. Our concern is that
there be “even
against
result,
mitigating
handed, rational,
ones. As a
imposition
and consistent
Currently,
Penitentiary.
17 men are on death row in the
Missouri State
processing
herent
in the
sentences under law.”
Jurek v.
of death
262, 276, 96
2950, 2958,
“[njothing
suggests
because
...
Texas,
case”
428 U.S.
the decision to afford an individual defend-
(1976).
inquiry would
Neither do we
der;
charged
that defendants
with second
that we must consider all murder cases in
degree
manslaughter
murder or
are not
point
which the defendant had at some
in
subject
process
to the bifurcated
and cannot
proceedings
charged
chargeable
been
prior
aggravating
have
convictions and
cir
them;
capital
Supreme
with
murder. The
Court
against
cumstances used
and that
Gregg rejected
analogous
in
greater
an
claim of
therefore
bears a
burden
unconstitutionality
opportu
based
“the
charged
on
than do defendants
with second
in-
discretionary
degree
manslaughter.
nities for
action that are
murder or
majority
rejected Judge
Supreme
Mercer
of
The United States
Court has found
the Court
infirmity
comparison
argument
no constitutional
in the
Seiler’s
dissent
“similаr
capital punishment
meaning
565.014.3(3)
cases decided under old
cases” within the
of §
inception
procedure
encompasses
statutes “at the
of the new
“all cases
in which the state
any post-Furman
capital
the absence of
penalty,
in which life
waived the death
all cases
comparison.”
Gregg
cases available
taken,
imprisonment
given
appeal
and no
n.56,
Georgia, 428 U.S.
capital
...
all cases in which
murder was
n.56,
(1976).
ward is necessary strained whenever it to main appellant’s guilt could not have determined security tain order in the courtroom. impartially. Allen, 337, 343, Illinois v. 397 U.S. V 1057, 1060, (1970); 25 L.Ed.2d Appellant contends the trial court Richards, (Mo.1971). Giv in refusing grant erred a continuance recalcitrance, en the trial court go forcing and in him to to trial in chains justified ordering appellаnt bound. prison clothing and with an armed Appellant, upset the trial court’s re argues guard at his side. He that he was grant fusal to the continuance and to re given time to down and that his calm counsel, move appellant’s appointed over appearance prejudiced in such condition library pretrial turned a table confer against him. guards approximate ence and scuffled with minutes; ly five over his chair in knocked began 5,1980. Appellant’s May trial attempting courtroom while to rise and dire, At conference before voir by guards; had to be subdued resisted be orally requested a in order continuance ing witnesses, placed required in his chair and potential interview four in four all him; guards and continually in the to hold assert penitentiary. Appellant’s ap mates ed that he remain in pointed ap counsel stated that he had told would not the court *14 pellant appellant present repeatedly that would no evi room. The trial court ap told May pellant dence until at least 6. The trial court that he would not be bound if he promised denied continuance and indicated that it He Appel to behave. did not. contends, nevertheless, issue subpoenas poten would the four lant that he should tial witnesses so рast would be availa not have been shackled the first day of actions, interviewing morning ble for of trial. May Given and the cannot say We that the trial court abused fact that been appellant had convicted of Bolder, you right I indicate to now we intend BEALMER: Do I have VENIRE[WOMAN] penalty yes to seek the death on the case. Is to answer or no? anyone there here the first row who be- You have to answer [PROSECUTOR]: as religious scruples you you of cause against either or moral best as truthful can and can. you penalty you the death don’t think BEALMER: Well VENIRE[WOMAN] guilty bad, death,
would be able
someone
to find
on the
is
I don’t like
but—
charge
capital
you
of
murder?
Let me ask
this: Do
[PROSECUTOR]:
think,
you
knowing
your
BEALMER: Yes.
VENIRE[WOMAN]
if
verdict
is
you again,
Let me ask
penalty
[PROSECUTOR]:
based
death
on the fact that the
you
scruples against
indicate
of
that because
you
background,
there in
do
think that
penalty you
you
the death
don’t believe
your
could
ability
judge
would interfere
facts,
to
with
guilty
capital
find someone
murder?
you impose
proof
a
would
burden
VENIRE
BEALMER:
I don’t
[WOMAN]
greater
penalty—
on me if the death
think so.
object,
I
he is
[DEFENSE COUNSEL]:
be-
the State of Missou-
If
[PROSECUTOR]:
ginning
juror.
argue
to
with
guilty
jury
ri—If
returns
verdict of
THE COURT: Sustained.
you
phase
go
into the second
Would the fact that
[PROSECUTOR]:
trial,
punishment.
then
issue is
there,
penalty
your
death
would that affect
jury
presеnted
After the issue is
ability
judge
to
the facts?
jury
still
has to assess
BEALMER: Yes.
VENIRE[WOMAN]
that,
imprisonment. Knowing
you
life
do
(Emphasis added.)
your ability
think it would
interfere
to
judge
guilt stage
the facts on the
murder?
another,
evidence is admis
Demonstrable
trial for
and was on
one murder
light upon
relevant
any
sible “if it throws
have be-
reasonably
could
the trial court
issue,”
Murphy,
v.
material matter at
State
might be
that another disturbance
lieved
1979),
(Mo.
or if it
banc
S.W.2d
were not bound.
forthcoming
appellant
if
fact in issue or ...
“tends to establish
Furthermore,
was no evidence
there
any way
arriving
at
aid the
court did not abuse
The trial
prejudice.11
verdict,”
from the doors
seen
in which the
The steel doors to the room
VI
padlocked,
were
knife was found
*15
trial court
Appellant
argues
next
that the
inch
between the floor
seven-eighths
space
Exhibit No.
admitting
State’s
erred
large
the doors was
and the bottom of
Theron
allegedly used to stab
the knife
through.
enоugh for
the knife to slide
photo-
King, and
Exhibit No.
State’s
fingerprints
were no detectible
on
There
there was
graph thereof. He contends that
knife,
when found was
but the knife
knife
tending
prove
to
that the
no evidence
wet with blood that matched
blood
still
victim,
possession
in his
or that
had ever been
of the
and
blood
matched that of the victim.12 This
deadly wounds.
clothes
had been used to inflict the
King’s
during
jurors questioned
that
blood contained factor
oath
also testified
11. The
under
PGMl,
enzyme,
indepen-
hearing
they
new trial stated that
is inherited
on the motion for
PGMl.
dently
appellant
system
the facts that
had not discussed
and thus is a further
of the ABO
present
guard was
discriminating genetic
was shackled and an armed
and that those facts did not influence
State v.
factor. See
their
Rolls,
(Me.1978).
The blood on
389 A.2d
The four venirewomen who indicated
decision.
on voir dire that the
appellant’s clothing
type
and contained
was
O
presence
guard
Dr. Kwei was able to determine
factor PGMl.
impartiality did not serve on
would affect their
O,
type
that the blood on the knife
jury.
quantity
was unable
small
she
because of the
argues,
Appellant
to test it for factor PGMl.
Su,
Highway
12. Dr. Kwei Lee
a Missouri State
therefore,
rep-
most this knife could
that “[t]he
serologist, testified that Theron
Patrol forensic
King
pris-
in the
that there are knives
resent is
blood,
approxi-
type
possessed
which
O
mately
possess. Dr. Kwei
of Americans
45%
evidence
appellant
Appellant
linked
with the knife
at
point
speak
that
would not
Lock,
sufficiently
justify
Investigator
but his
admission of
knife
statement
cannot be construed as an
photograph
and the
indication that he
into evidence.13 The
desired
remain silent. He wanted in-
trial court did not abuse its discretion.
speak
stead to
with another officer.
VII
Appellant was
rights
advised
his
Appellant contends that
the trial court
and
knowing
intelligent
made a
and
waiver
overruling
erred in
suppress
motion to
right
of his
speak
to remain silent. After
the oral statement that he made
Looten,
to Investi-
ing with
appellant
Lt.
said he was
gator
stabbing.
Lock
afternoon of the
statement,
ready to make a
Investiga
and
(1)
He claims
that the oral statement was
tor Lock thereupon was summoned back
made after he had
into
refused to make a writ-
the room.
was read his
them,
rights,
ten
said he
signed
statement and after he
understood
already
had
cut
officer;
waiver. There
interrogation
off
was no coercion
(2)
with one
that
authorities. Lt. Looten testified
appel
he made the statement under duress and
lant was not
during
interroga
shaсkled
coercion and was not
right
advised of his
tion,
Investigator
Lock testified that no
silent;
remain
that he made no
promises were made and
knowing
intelligent
right
waiver of his
beaten, struck,
not
or otherwise threatened
to remain silent and that
the trial court
Appellant’s
coerced.14
to make
refusal
failed to find that his statement was volun-
written statement has in this situation no
tary.
bearing on the voluntariness of his oral
Appellant’s view of
contrary
the facts is
Investigator
statement.
Lock testified that
testimony
uncontradicted
elicited at
appellant “said he would not
a writ
[make
suppression
hearing. Appellant bases
ten statement], he
give
did not like to
writ
his first
upon the statement
in ten
just
statements and he
as soon tell
Arizona,
Miranda v.
S.Ct. Lieutenant Looten
I
and what occurred and
(1966),
Fifth
privilege^]
Amendment
565.014(1)
Sеction
mandates that we re-
473-74,
(footnote
Id. at
With
Mercer,
we have affirmed
Newton
court shall determine:
which
capital cases in
the choice
twelve
was
(1)
sentence
death
Whether the
possibil
life imprisonment
or
death
imposed
passion,
under the influence of
factor;
parole
fifty years
submitted
ity of
was
any
arbitrary
or
other
prejudice,
Greathouse,
jury.
v.
627
to the
State
Bostic,
(Mo.1982);
592
v.
625
S.W.2d
State
(2)
supports
Whether the evidence
Thomas,
(Mo.1981);
v.
625
128
State
S.W.2d
finding
statutory
jury’s
judge’s
or
of a
Emerson,
(Mo.1981);
115
State v.
S.W.2d
as enumerated
aggravating circumstance
Turner,
(Mo.1981);
252
623 S.W.2d
State v.
565.012;
in section
(Mo.
1981);
v.
4
banc
State
623 S.W.2d
is
the sentence of death
Whether
Jensen,
(Mo.1981);
v.
The cause prisoners is affirmed. other did not persons like who committed of that crimes kind to Date of set August execution problem avoid this he intended to a commit capital murder. J., DONNELLY, RENDLEN, C. bra, He forced to don a Jerry punched HIGGINS, JJ., MORGAN and concur. him, and forced him to repeatedly to submit acts, oral and anal sex forced him to kiss SEILER, J., separate in dissents dissent- others, display rag and to a which had been ing opinion filed. anus, stuffed in his burned initials into his BARDGETT, J., dissents and concurs in arm, referred as his to him “woman” and separate SEILER, dissenting opinion of J.. Jerry forced to a write suicide note to his SEILER, dissenting. Judge, parents. Later gagged Trimble Jerry with towel, a they told going him were play to I respectfully dissеnt as to the review of “hangman’s game”, looped a knotted towel my opinion the death sentence. In the sen- neck, around his his against set knees Jer- tence death is excessive and dispropor- ry’s back proceeded to choke the victim tionate in this case. minutes, to death period over a of fifteen principal points out, As the opinion this is breaking one of the neck vertebrae in the the first case we have reviewed in which process. attempted Trimble then to make jury imposed the death penalty after suicide, the death appear aas and forced finding as a statutory aggravating circum jail other to agree inmates to tell the stance that the was lawfully defendant con guards it was a suicide on of the fined the time prin of the murder. The thing same happening to them. cipal opinion, however, takes into considera Shaw, defendant, In serving two a life pending us, tion other such cases before degree murder, sentence for first Shaw, intended No. 62679and State v. Trim ble, guards, kill one No. officer Clinton says nothing as to their Wyrick, the facts, uncle aspect warden. which is essential in Shaw deter room, entered vegetable mining seized whether are two similar to the and, knives, butcher warning, present casе. Based on the briefs and the plunged one side arguments into the of the officer oral this before court in these (Farrow) knives, cases, charge who was in two there was evidence in the record killing (Farrow him died within the supporting the hour verdicts follows: from blood). loss of Shaw then went in Trimble, In jail, the defendant was in Wyrick, search of officer found him in the charged rape, with sodomy, sexual abuse in commissary, Wyrick attacked with both degree kidnapping the first of two nine knives, butcher attack lasting 30 to 45 girls. man, old year large He awas six seconds,with Wyrick’s numerous wounds on feet, height, one inch weighing in arms, Wyrick chest and stomach. took thir- victim, The pounds. whom I will refer to recuperate. teen months to only by name, his first Jerry, age feet, height, weight five ten inches Any in reprehensible, murder is serious and pounds, quiet, mentally slow, shy, present and but the hardly murder in the case is jail comparable “scared death”. He was in on a viciousness extremes charge pinch, of auto theft. Trimble would the murders in the Trimble and Shaw cases. tease, and Jerry Jerry harass and when similarity main that the instant case asleep put lighted would matches between also occurred in If place confinement. toes. Trimble he wanted Jerry present declared murder in the case had occurred “punk”, i.е., further, homosexually; as his parking or on lot tavern or elsewhere walls, go prison he did not prison want to on the outside the someone not charges confinement, involving young girls the two be- would there have been no rea-
n.25, n.7, n.25, (1976). 96 S.ct. L.Ed.2d *18 likelihood, in opinion, peniten- of the serve for life. Most inmates the my sonable discharged, are either because tiary being capital able to obtain a prosecutor (and completed have their sentence or this conviction, pen- less the death murder much majority cases) up makes of because degree alty. It would work out as a second paroled. to life they are Of those sentenced murder case. imprisonment paroled, average who are In addition to the Trimble and Shaw length prison of time served in is some- above, principal opinion considers cases years. where between fifteen sixteen the two cases where the death sentence has different, course, It is much of with re- Mercer), (Newlon and one been affirmed sentence, spect capital to a murder life case where the death sentence has been possibility parole that is for life without disproportionality reversed because of fifty years. A murder defend- (McIlvoy), twelve cases where ant life under that sort of sentence knows punishment impris at life affixed he fifty must serve a minimum of possibility parole for fif onment so, however, years. Not for the inmate ty years rather than death. serving ordinary type of life sentence. trying compare apples This is like impris- Defendant was sentenced to life oranges. None of the twelve cases involved Although onment in 1974. he stabbed in- persons in lawful confinement. Without King mate it does not follow that exception killings in the twelve cases until that time he had not conducted him- were far more extreme and horrendous prison self in accordance with the rules and and, finally, than here even so in none of regulations and had caused no trouble. penalty the twelve was the death inflicted. nothing There is in the record con- comparable they To the extent the cases are He trary. may have been one of those penalty in the demonstrate that death serving a life sentence who otherwise would disproportion- present case is excessive and paroled have been in due course. How can ate. imposition it be said then that the of anoth- killings The same is true of the in the him, upon er life sentence this time without Newlon, McIlvoy Mercer and cases. None possibility parole fifty years, amounts persons involved in confinement and each signal to no more than a there “that is no killings of those is far more extreme and prisoners real cost for who kill while in case, present than that in the horrendous nothing confinement” and that less than instances, yet even in these in one case— slap death amounts to more than a on the McIlvoy was declared —the wrist? disproportionate. excessive and If that support There is no evidence before us to McIlvoy, certainly were true in it is true assumption the death sentence here. particular could serve as a deterrent to this principal opinion The real rationale of the I defendant others his class. am un- anything in the belief less than lies willing assumption to make the which the more death for this defendant would be no principal opinion has to make in order to wrist, slap already as he is than a affirm the defendant’s sentence of death. serving degree for first mur- life sentence principal opinion uses rational particular der. This assumes that this de- uphold constitutionality basis test life actually fendant would have served for test, 565.012.2(9). In order to use this degree charge, under his first an must first conclude that the statute does assumрtion which has no factual basis. impinge personal on “fundamental knowledge today
It is “life” rights” society already deprived common because has imprisonment Only prisoners liberty. agree is a misnomer.1 a small I cannot percentage analysis. person impris- of inmates with life sentences this Because a later, (1980-81), prison- Report According all Annual “Sooner 35th 98% ers are released.” Missouri Board of Probation and Parole
oned,
a
ON
period
whether for life or for
short
MOTION FOR REHEARING
time,
that person
of
does not mean that
has
PER CURIAM.
personal right”
life
lost his “fundamental
in
Appellant in his motion for rehear
The appropriate
itself.
standard of review
ing
court
in
contends that
trial
erred
scrutiny
of this classification is the strict
failing
degree
to
the jury
instruct
on first
test because the statute
trammel fun-
does
murder as a
offense. There
lesser included
test,
personal rights.
damental
Under this
objection
was no
at trial
failure
so
interest,
we should look at
state’s
deter-
jury,
instruct
did not
mine whether it is
then
compelling, and
point
raise the
in his
for
motion
new trial.
impinges
determine if the statute
on
appel
It is raised here for the
time
first
in
fundamental
in
re-
personal right
the least
brief,
reply
attempts
lant’s
but it
to raise a
generally,
strictive manner.
v.
Shapiro
See
reply
new matter rather than
to matters
1322,
Thompson,
618,
394 U.S.
89 S.Ct.
imper
raised
the state’s brief. Such is
(1969);
Tribe,
L.Ed.2d 600
L.
American
295,
Brown,
missible.
v.
(1978).
Law ch.
Constitutional
Under
(Mo.1973),
denied,
973,
cert.
416 U.S.
analysis,
this aggravating
this
circum-
(1974).
S.Ct.
affirming the do that to
otherwise means there is no real cost for
prisoners who kill while in confinement.
The facts of real life are otherwise. different, course, average It would be per year, for a increases on the 20of there already 1,000 murderer who is peni- under life sentence will be around such inmates in the possibility parole fifty years, tentiary for eligible before one of them is is not this case and the statute does so parole. I it is think to this class of inmates that limit itself. suggestions principal opinion which the at- my understanding Supreme present popu- It is tributes to the United that the States Court City penitentiary killing by might lation of the that an state Jefferson intentional an inmate 2,000 1,900 approximately mandatory justify imposition pen- and that of the death approximately alty might apply. repeat, present these serv- to 85 inmates are To is not ing pos- murder life sentence without such case. sibility parole fifty years. group If this