*1 Missouri, Respondent, STATE of
Larry GRIFFIN, Appellant.
No. 63315.
Supreme Missouri, Court of
En Banc.
Dec. 1983.
Rehearing Denied Jan.
illegal trade near the intersection Sarah Louis, six blocks Olive Streets St. of abode. parent’s place from his male, Defendant, a the brother black Reginald of Dennis Griffin. Griffin was a nephew of defendant and Dennis. Prior to Moss, Quintín the defendant killing of lived with defend- Reginald together ant’s sister. early January
In the hours of Quintín and Dennis Moss Griffin arrived at apartment, awaking the Moss Mr. and Mrs. by knocking ringing Moss on the door and the doorbell. an be- Following argument Steiger, Louis, Frederick M. St. for re- Quintín father, and his the latter tween spondent. objecting bringing to his son’s “that kind of him”, departed home with Dennis Reed, Gen., John C. Atty. Asst. Jefferson premises. A short time later he was City, for appellant. killed in an alley apart- behind Moss BILLINGS, Judge. Quintín ment. a week About later Moss was arrested for this subse- killing but Griffin, Larry years old at quently released There- authorities. trial, the time of was convicted of the capi- after, Moss, according to Mrs. she was the tal murder of byMoss jury recipient telephoned her against threats Circuit Court of the City Louis and St. the killing son’s life because of of Dennis reversal, sentenced to death. He seeks con- the unidentified tele- opined Griffin. She tending there was prejudicial error in the phone caller was a “black male”. court’s instructions to the and in ad- mitting certain evidence in guilt phase 1980: At about 2:00 or 2:15 in of his trial. He also avers error afternoon, Quintín Moss and Robert was committed in the reception of other male, together a black near Campbell, evidence at the penalty stage of the trial the intersection of Sarah and Olive Streets. and that the death penalty violates the Fed- p.m. About 2:30 a black over brown older eral Constitution. We affirm. automobile, two occupied by model Cadillac males, up black drove One of stopped.
Although defendant
directly
does not
at
occupants stepped
out of the vehicle
tack the sufficiency of the
to sup
pistol
and fired four or five
shots in
port
conviction,
his
we think it
helpful
Quinton
direction of
Moss and Robert
considering
points
his several
to set forth in
Campbell,
striking
wounding
one bullet
some detail the facts and reasonable infer
Cadillac, containing
the two
Campbell.
arising
ences
therefrom which the
males,
sped away.
unidentified black
then
could reasonably have found in
at
arriving
A short time later
Moss was seen
verdict,
their
ignoring contrary evidence
beneath his
at
the scene of the
bicycle
Franco,
and inferences.
shooting.
1976),
denied,
cert.
431 U.S.
At about 3:00 officer saw was struck in the buttocks Fitzgerald in a black had an unob- Reginald Griffin of the bullets. throughout over brown 1968 Cadillac automobile about structed view of the defendant three miles from the drove Regi- shooting scene. and as Chevrolet nald was the vehicle. driving away. Fitzgerald plate When the saw the license officer, car, driving an unmarked the rear of the car and memorized the num- *3 pulled up alongside provided the Cadillac and dis- ber. He this information to the played badge, his the Cadillac accelerated and the officers to the police accompanied and drove A he away. police chase ensued for some station where identified being distance before the officer’s car group photographs and from a of another the front seat person firing detective’s car forced the Cadillac from pistol Fitz- to a time later stop. Reginald Griffin was arrested of the Chevrolet. A short as the vehi- gerald traffic identified the Chevrolet multiple weapons violations. No of the at the scene cle which had been found. killing. Jones, June off at duty 1980: Officer an was behind parked time, 1968 Chevrolet driving past was 3656 Cook Street unoccupied. and was apartment building
at about p.m. 4:00 He saw three black a .30 cali- In the vehicle the officers found recognized males near the house. He de- a rifle, contained ber semi-automatic which (“known police character”), fendant to be a of ammu- seven live rounds clip containing a person wearing second a red and white nition, casings, a .38 cali- empty rifle shell baseball a cap, person carrying third revolver, cap, baseball ber a red and white appeared what to the officer to be a shot- “Regi- the name receipt bearing and a court traffic, gun. heavy Because of Officer clip fully loaded the nald Griffin”. When Jones delayed circling was in the block to of 31 rounds for the would hold carbine investigate what he observed. theBy testimony expert was ammunition. There returned, disap- time he the three men had at the scene fragment that a found bullet peared. Quintín Moss had been killing of the Fitzgerald, witness Robert a State’s carbine, Jones which Officer fired male, standing white beside his car at appearance in testified was similar p.m. about 4:30 near the intersections of carrying males was firearm one of the black Sarah and Olive Streets while two other p.m. 4:00 address about at the Cook Street repair men were it. attempting Fitzger- red and Officer also testified Jones ald had earlier observed Moss in the similar to the one saw white cap was engaged and concluded Moss was in vicinity the two unidentified being worn one of on the selling standing narcotics. Moss was bullet A .38 caliber black males earlier. near car when Fitz- Fitzgerald’s sidewalk shooting at the scene fragment found gerald saw a blue 1967 or 1968 faded Chev- general of the same classification up stop rolet drive behind car. Fitzgerald revolver found in the Chevrolet. There were two black males in the front to the one similar testified this revolver was and a in the rear seat. There seat third at Moss. firing he saw defendant gunfire was a burst of from the Chevrolet that “the asserts1 Fitzgerald firing saw the defendant first error prejudicial through pas- window of the trial court committed pistol open regarding instructing the car. senger properly side of the front seat of guilty to find defendant firing proof required person in the rear seat was events charged coparticipant semi-automatic rifle. The direction of the as a instruction director struck the verdict shots was towards Moss and he was because MAI-CR A failed to conform to passerby, 13 times bullets. Wallace considering points, opinion on June 1983. down In defendant’s various riam handed liberally writer has from the Per Cu- borrowed “the 2d form in that the first Defendant next contends that paragraph verdict director instruction contained lan- court committed error trial guage significantly pre- different than that 2d 3.42 the cir refusing give MAI-CR scribed in 2d 2.12.” MAI-CR request instruction as cumstantial evidence because said instruc ed defense counsel
Instruction No. 6 reads as follows: case in defendant’s appropriate tion was you “If find and believe the evi- law applicable under the case proper dence a reasonable doubt: in that the bulk and MAI Notes on Use First, 26,1980 that on or about June circum presented, the evidence at Missouri, City Louis, State of St. of the evidence was stantial and much the defendant or another caused nature conflicting and inconsistent the death of byMoss aided greatly 2d 3.42 would MAI-CR him, the evi evaluating properly Second, that the defendant another di concedes that both dence.” Defendant take person intended to the life of *4 evidence were rect and circumstantial Quintín Moss, and evidence, here, is the as “Where presented. Third, that the defendant another and circumstantial, partially direct and partially person they knew that practically give it not to circumstantial necessary is Quintín certain to cause the death of the to sub- evidence instruction and test as Moss, and missibility is that of a circum purely not Fourth, that the defendant and another Baldwin, stantial evidence case.” State v. person taking considered life of 236, (Mo. 240 banc 571 S.W.2d Quinton Moss and this upon reflected point is denied. so, matter coolly fully doing and before you then are instructed offense trial Defendant continues that “the committed, of capital murder was and if de denying court abused its discretion you further find and from the believe and in pre-trial fendant motion limine evidence a reasonable doubt: objec admitting over renewed defendant’s Fifth, in the commission of such the assault testimony regarding tion at trial offense the defendant acted with such testimony Campbell on because said Robert other with the of com- purpose was probative irrelevant its value offense, mitting that inflammatory preju- its outweighed you then guilty will find the defendant evidence did not dical nature that said capital murder. this disprove fact in issue in any However, if do not believe you find and cause, presented ei testimony none of the from the evidence beyond a reasonable ap on ther linked assault doubt each and all of these propositions, herein, and charged or to erime pellant must you find the defendant not guilty only served to draw testimony that the that offense.” is attention factual jury’s away This case was tried in June 1981. In- upon that it was called resolve sues struction No. 6 should have decide jury’s ability hinder the thereby 2.12, prescribed form in MAI-CR effec- 2d its merits.” principal upon case 1, However, January giving tive 1979. evidence about From the circumstantial of Instruction 6 court was No. find complains, rational which defendant 6 fol- error. Instruction No. defend could have concluded that er of fact adopted by lowed MAI-CR 2d 2.12 form Moss on attempted ant to kill 14, of this entered April Order 13,1980, Campbell stood within as Moss and provided adopted That Order that the form intersection of date after a few feet Sarah on said “must be used on and is inadmis 1, evidence January 1982, may “Relevant prior be used Oliver. v. State any pre- prejudicial.” thereto and such use will not be sible because it Wood, cert. banc), 394, (Mo. sumed to be in error.” 596 403 S.W.2d 858
denied, 876, 221, general description 449 101 S.Ct. 66 matter. Nor does the U.S. (1980). L.Ed.2d 98 reason given provide of the vehicle as less substantially suspicious, for the to be alone, firing Campbell, standing Carter, stop. v. 572 give chase and State would not be relevant and would therefore 430, (Mo. 1978) 435 banc S.W.2d State But inadmissible. evidence sur- Clark, 817, v. 607 819-20 (Mo.App. S.W.2d rounding May 13 event involved 1980) provide ample basis for the admission Moss, and Campbell merely incidentally regarding despite of evidence the Cadillac involved as was Wallace in defend- Connors discrepancies concerning the minor its de ant’s June successful effort time, It scription. enough was close “get” Moss. to allow its proximity identity part relevancy thus to episode given billing. to be substantial plan show a common scheme or and would therefore not be inadmissible because of its through the excit Mrs. Moss related disclosure of another crime. v. State Wil ed utterance of her son liams, 102,110 (Mo. 652 S.W.2d banc shooting shortly the intended victim Shaw, 667, (Mo. the facts as after its occurrence. Under 1982), denied,-U.S.-, cert. related, Quintin’s “just that he fact, S.Ct. L.Ed.2d 188 In qualifies had been shot at” for admission this many situation bears of the marks of White, 621 an excited utterance. White, 294-95 S.W.2d 295; Rogers, S.W.2d at 1981), in which a victim’s excited utterance could (Mo.App.1979). of a prior attempt accepta on her life was *5 that the statement was ut reasonably find ble part continuing as scheme to kill tered an unusual occurrence shortly after her. Admittedly, the facts here do not of the Quintín while was under the effects present strongest possible case. But an uncontrolled state of episode and in the admission of the 13 attack is not May mind. prejudicially erroneous. Orman, 642 In State v. Van May The salient facts of the 13 incident (Mo.1982), at we said: are as follows: Police responded to a shoot- admissibility of a test for at essential ing report Sarah and Olive and found a utter- or excited bleeding spontaneous and dazed Robert statement Campbell. of its Campbell place Moss was beside him. ance is neither the time nor related that a black over brown “older Cad- it was made under utterance but whether carrying negro stopped. illac” two males indicate it circumstances as to such One of the and fired occupants alighted excep- The rationale of this trustworthy. several one of which gun, shots from where the tion rule is that hearsay leg. struck Campbell under the immediate is made senses and uncontrolled domination a half hour of the 13 attack Within produced as a result of the shock wounded, police in which Campbell event, be taken as may the utterance spotted in a Reginald Larry Griffin the declar- the true belief of expressing black over brown 1968 about three Cadillac Rogers, ant. State point Reginald miles of assault. (Mo.App.1979). driving. occupants When Cadillac police, they sped away observed we hold presented, Under the evidence high speed in a caught shortly thereafter statement of Robert that both the in- Reginald Larry chase. Both were admissible as Quintín Moss were and that of ultimately stopped. side the vehicle when or excited utteranc- spontaneous statements together, they demonstrate es. Considered The fact that the black over brown Cad- to kill plan a common scheme or only illac was found to be with two doors to the de- circumstantially point reported than four Moss initially rather doors critical; prejudicial no error. can assess that fendant. We find is not Defendant contends that “the trial dicial to the defendant in that it concerned court committed prejudicial error in over to the occurring subsequent jury’s matters ruling defense counsel’s objection guilt punishment as to determination admitting objection into evidence over said this cause.” the testimony of state’s witness Missouria The information read into the record is Moss repeating verbal threats she heard “[wjhether determination pertinent to our from unknown individuals over the tele or dispro- the sentence of death is excessive phone because said evidence was inadmissi in similar portionate penalty imposed ble hearsay that it was in court testimo cases, both the crime and the considering ny judicial of an extra statement that was 565.014, defendant.” Section RSMo offered to the truth of the matters State, See Banks v. 237 Ga. 227 S.E.2d asserted therein.” point denied. all, First of proper record discloses a objection and timely was not made de- avers that “the trial question, fendant to the nor was there a overruling court its discretion in de abused proper motion made to strike Mrs. Moss’ objection admitting fense counsel’s to and Further, answer. there was no ruling by objection during into evidence over said the court on tardy objection. defendant’s of de punishment portion determination Consequently, point preserved is not close-up eight by fendant’s trial three ten our review. Plain error review is not war- inch color of the wounds suf photographs ranted. point is denied. fered the victim in this cause because Defendant next asserts that “the trial prejudicial inflammatory impact court committed error in over- outweighed these their photographs greatly ruling objection defense counsel’s to and probative photographs value in that these admitting into evidence objection over said cumulative in nature as ex entirely the testimony of state’s witness Missouria testimony presented tensive had been at Moss reciting statements made to her by number, nature, location, detailing her son Mossbecause such evidence of wounds received the victim type was inadmissible as hearsay and was not already photo and the viewed a within the excited utterance exception to *6 showing of the victim’s said graph body the hearsay rule in that the statement was wounds.” not made under the immediate and uncon- record judge The trial stated into the trolled domination of the senses as a result photographs per- that he believed the of the produced shock by the event and tinent circum- statutory aggravating to the therefore the utterance sufficiently was not to stance which the state was trustworthy to be admitted as an exception a reasonable doubt. See to the rule.” hearsay The 565.012.2(3), agree. 1978. We RSMo § indicated, As supra, opinion we are of the point is denied. that Moss’statement to his mother falls spontaneous within the statement or “the finally Defendant contends that excited utterance exception hearsay in this case imposition penalty of the death rule, and, therefore, admissible. v. punishment constitutes cruel and unusual in Orman, Van supra. fourteenth eighth violation of the of the amendments to Constitution claims “the statutory aggra United States because court committed error in over un applied circumstance herein is vating ruling defendant’s motion strike to face and constitutionally vague both on its the transcript portions pre- herein of the widely susceptible in that it is investigation applied sentence read into the record causing thereby differing interpretations the trial court at the sentencing time of imposed in an arbi because the information that into the death to be penalty was read highly preju- trary the record was irrelevant and manner.” capricious impo reviewed circumstance which this Court has statutory aggravating was basis presented jury found in this case on the penalty sition of the death capital that the accused his act of mur- “by specified circumstance the aggravating der of death knowingly great created a risk Those cases 565.012.2(3),RSMo § person public place by more than one in a imprisonment and life which both death means of a or which would weapon device which have were submitted to the lives of more normally be hazardous to re have been appeal been affirmed on ” 565.012.- than one .... Section 1, 11 Mercer, 618 S.W.2d viewed. v. 2(3), RSMo 1978. 933, 102 denied, 454 (Mo. banc), cert. U.S. do They S.Ct. 70 L.Ed.2d Philadelphia
In York and Liverpool, New disproportion- point to excessiveness Emigration, S.S. Co. Commissioners in this case. in the sentence ality 33, 39, 352, 355, 113 U.S. 5 S.Ct. 28 L.Ed. (1885), Supreme the United States affirmed. judgment against formulating Court warned a court “a rule of constitutional law broader than is WELLIVER, RENDLEN, C.J., HIG- required by precise facts to which it is JJ., con- DONNELLY, GINS, GUNN and applied.” cur. 420, 428, In Godfrey Georgia, U.S. BLACKMAR, J., separate (1980), dissents S.Ct. L.Ed.2d 398 held Supreme opinion United States filed. “that if a capital State wishes to authorize 3, 1984. February set for Execution date it punishment responsi- has a constitutional dissenting. BLACKMAR, Judge, to tailor its in man- bility apply law a correct deals opinion able Judge Billings’ arbitrary capricious ner that avoids the ease, which in this the issues ly with most of penalty.” infliction of the death I regret tried. I well generally caution, Liverpool Mindful of the and of affirmance, I but believe join cannot constraint, Godfrey we confine our bur- improperly holding particular to the facts in this case. evidence, which should dened evidence, According defendant creat- 13,1980 admitted, of the great ed “a risk of death” to at least seven eye- only Campbell. involving Robert persons by weapons sufficiently means of seriously had a the murder witness to body hazardous to strike the ob- ability background, flawed Moss thirteen times and to wound Wallace was also gunman identify serve and view, finding Connors. In our then, error, subject to question. aggravating circum- statutory new is a solution only and the prejudicial, stance is constitutionally permissible. trial. 565.014.3(1), also Section RSMo *7 that determine wheth- mandates this Court I. imposed
er “the sentence
death was
un-
of
or
passion, prejudice,
der the influence of
observes
properly
principal opinion
The
” The rec-
any
arbitrary
other
factor ....
a
case,
of
that,
evidence
capital
in a
murder
that
the death sentence
ord demonstrates
vic-
on the
defendant
attempt by the
prior
of
imposed
was not
under the influence
a
showing
in
relevant
highly
tim’s life is
arbitrary
other
passion, prejudice,
any
establish-
and in
continuing
plan
scheme or
factor.
the
By
the element of deliberation.
ing
indi-
however,
which
token,
evidence
same
1978, man
Finally,
565.014.3(3), RSMo
§
highly
is
involvement
the defendant’s
cates
dates that
this
determine whether
Court
suffi-
is not
if the defendant
“the sentence of
is excessive or dis
death
There
attempt.
prior
into the
ciently tied
imposed in
proportionate
penalty
to the
the
because
numerous reversals
have been
cases, considering both the crime
similar
prior
of
prosecution
first case
offered
and the defendant.” This is the
861
mcar
conduct,
gunman’s
described the
relevant criminal
without
suffi-
tion. He
prior
the
ciently tying the defendant
into
question.
a
officer’s
response
police
to
offenses.1
admission
Campbell’s
the
of
Although
pages
history
the
A lesson from
should
be-
goes
“excited utterances”
statements as
helpful.
The famous case of State v.
case
yond
reported
applying
Missouri
any
(1911),
234
136
Hyde,
Mo.
316
S.W.
hearsay
particular
exception
this
to
charge
involved a
of murder of Colonel
rule,2
line
is in
with
the conclusion
longtime
Thomas
of Jack-
Swope,
resident
as
modern authorities such
liberal view of
The
County
son
and civic benefactor.
de-
hold-
Rules of Evidence.3 The
the Federal
fendant,
nephew
a
his
physician,
the introduction of evidence
ing
permit
will
marriage. The
claimed that
prosecution
would
and criminal cases which
both
civil
Dr.
hastened
Hyde
Swope’s
had
Colonel
law.
rejected
prior
under the
have been
by deliberately prescribing
death
medi-
disagree strongly
I
not
with
But
do
cation which
a lethal accumula-
produced
particular portion
this
majority on
tion of arsenic.
In an
bolster
effort
its
holding.
court’s
prosecution
case the
tried
that
to show
his
knowledge
defendant had used
medical
who
police
The
that the
officer
problem
in an effort
kill other
members
Campbell definitely
interviewed
committed
Swope family, by
bleeding
excessive
of a
four-
Campbell’s description
himself to
of a
victim,
by introducing typhoid
stroke
It makes no
door automobile.
difference
germs
suggested
into food or water. The
number
that the officer did not disclose the
motive was
increase
his wife’s inheri-
read
direct examination. He
of doors on
This
tance.
the conviction
reversed
got
that
report,
agreed
from his
because it
state had
concluded
It
the witness.
number of doors from
established
or attempted
homicide
homicide
though
hoped
prosecution
almost as
regard
other
members of
fami-
of the car would
description
the full
defendant,
ly.
therefore,
was bur-
one
problem
here is
not come out.
by improper
making
dened
innuendo in
hearsay exceptions. The declar-
common to
defense.
There is
ant’s statements are immutable.
Nobody identified the
as the
degree.
matters
exploring
no
leeway
perpetrator
May
shooting.
13
rid
in which the defendant was
car
only link to him is Robert Campbell’s hear-
photographed
as
ing
passenger
say
gunman
riding
only
appears
two doors. This
found to have
in a black-over-brown four-door older Cad-
Even
illac,
certainty.
with
the defendant’s
definiteness
presence
pas-
might
in a
wonder
senger
discrepancy,
black-over-brown two-door Cad-
one
without this
illac.
description by make and color
whether the
sufficient,
the absence of testi
would be
13
eyewitness
No
similar cars. Cf.
the number of
mony about
The state
entirely
even testified.
relied
Greer,
(Mo.App.
593
655
S.W.2d
the testimony
police
officer who inter-
pursue
point,
But we need
viewed
at the
Campbell
scene.
not find the same
because the
did
He
leg.
wounded
lost
witness described.
substantial
and was
a dazed
vehicle that the wounded
blood
condi-
Hancock,
White,
(Mo.
(Mo.1981);
1. S.W.2d
S.W.2d
Strickland,
Rogers,
(Mo.App.
(Mo.App.1979);
This pointed was not out in the motion for Allegation new trial.
of that motion refers to a variance between
the instruction given and The princi- MAI.
pal opinion correctly resolves this issue.
It is appropriate to insist specific ob-
jection to instructions. My preference
would be for requiring objections before the given,
instructions are in the manner of
Rule 30 of the Federal Rules of Criminal Procedure. An objection only in the motion Movant, FORD, Kenneth
for new trial comes too late to do any real good, but it is a requirement firm of our Rule 28.03. After examining closing Missouri, Respondent. STATE arguments, I am confident that the genuine issues were properly presented and that the No. 45276. not misled or confused Appeals, Missouri Court instruction, and so am unable to say District, Eastern plain there was giving error in it. Division Three. 15, 1983. March
III. Transfer to and/or Rehearing Motion for Because my conclusionthat a complete 13, 1983. Denied Supreme new trial is I do not reach the question punishment. do, I however, Transfer Denied Application have some observations. 30, 1983. June
The evidence showed a gangland-type as-
sassination, gunmen with two sem- firing weapons
iautomatic from moving vehicle. public The scene was a street and the dan- Holmes, Louis, for Cynthia S. St. movant. to more ger than one I patent. agree holding with the in the principal opin- Ashcroft, Gen., Green, Atty. John Kristie ion that the supports aggra- Gen., George Asst. Jefferson Atty. City, vating circumstance found jury, Westfall, Atty., Clayton, respon- Pros. there is no indication that acted dent. Betts,
5. State v.
(Mo.
attempt