*1 RENDLEN, WELLIYER, C.J., and HIG-
GINS, JJ., BLACKMAR, GUNN and con- -
cur.
DONNELLY, J., part concurs dis- part
sents in in separate opinion filed.
DONNELLY, Judge, concurring part dissenting in part. particular
In this case the insurer’s re- pay litigation
fusal to the loss as a
reasonable matter law.
I respectfully dissent as to the award
attorneys’ fees. Missouri, Respondent,
STATE LASHLEY, Appellant.
Frederick
No. 63994. Missouri,
Supreme Court
En Banc.
March 1984.
Rehearing April 16, Denied *2 Robertson, Defender, Public
Henry Asst. Louis, appellant, St. Ashcroft, Gen., Atty. John E. Mor-
John Gen., ris, Atty. City, Asst. Jefferson respondent.
BILLINGS, Judge. Lashley,
Defendant Frederick was capital phys- convicted murder 55-year-old ically handicapped cousin and mother, Tracy, robbing foster Janie while prescribed The punishment her of $15. approved by the trial court is death. We affirm.
The victim lived alone in a downstairs City apartment in the of St. Louis. She trouble, had heart diabetes and a neuro- problem muscular limp that caused her to required walking her to use a cane. difficulty had walking She since she had undergone operation a brain a number ago. years operation had resulted in a portion the removal of of her skull left side of her head. Defendant had lived (and for by Tracy been cared Miss mother) her from the time he was years years until he was sixteen old. present had He been on occasions when concerning there had been discussions spot Tracy’s soft on Miss head. 9, 1981, night April Tracy
On Miss sister, Williams, visiting Mrs. who Tracy apart lived several blocks from the p.m., ment. Sometime defend before 8:30 apartment climbing ant entered the through top on the rear of window light .porch. He unscrewed the bulb the light front room so that would not come on when the switch was turned on. His to ambush Miss admitted Tracy money take her when she re Defendant, turned home. armed with a (and iron reason cast skillet could ably also had a knife hav find he blade), ing and one-half inch waited seven adjacent to the in the dark the bedroom front room. Tracy be-
Miss left her sister’s home p.m., driving her car. tween 8:00 and 8:30 police, In his to the one confessions videotaped, defendant stated which was Tracy entered the when Miss front trated her brain. This stab wound caused apartment attempted door of the approximately her death 48 hours later. light. light turn on the did When testify at trial Defendant did not come on she started into the room where videotaped confessions written and waiting. defendant was As she reached were introduced the State.1 In both he light switch he her in struck *3 striking admitted the defenseless woman skillet, breaking head with the iron it into with the skillet with sufficient force to pieces. began He said she fell and plunged knock her down and then screaming put and he his hand over her knife Consequently, butcher into head. mouth. When asked where the knife came his claimed error the admission into evi from the defendant stated: dence of a small hammer that was found on—well, Off the floor. It really was by piece an evidence technician of near mean, you it was on the floor. That’s—I long the iron skillet need A not detain us. know, just see the knife and then I photograph showing piece the hammer and it, grabbed you know. And then she had already of skillet had been received in evi it in her hand. We both had it. And objection. physical dence—without As a finally got then I it—got it back and then object found at or near the scene of that’s when I stuck her it. with crime, type and of a that could have been keys Defendant took and car from Miss $15 blow, felling used to deliver a we cannot Tracy’s purse, locked the front door on say relevancy proba the hammer had no or way apartment, out of the and drove off in Neal, tive value. 591 S.W.2d See State ap- the victim’s automobile. He was 178, (Mo.App.1979). Defendant does prehended driving while the stolen vehicle not demonstrate or in manner he how what shortly midnight. after prejudiced by being was the hammer re neighbor An upstairs Tracy, of Miss Mrs. ceived in evidence and note that we Ali, 81, by had heard screams followed only closing of ar mention the hammer something which sounded “like a fall” from guments by made In was defense counsel. apartment. telephoned the downstairs She event, any beyond dispute it is Tracy apartment when she did knife defendant butcher wielded answer, get an called Mrs. Williams to weapon. point was the death The is de investigate. come over and Mrs. Williams nied. apart- and her husband went to her sister’s shortly p.m.
ment
after 8:30
Mrs. Williams
Defendant next launches a broad
parked
“Witherspooning”
noticed her sister’s car was not
side attack on the
[With
Illinois,
key
apartment
erspoon
outside. She had a
to the
391 U.S.
S.Ct.
it,
upon entering
(1968)]
jury
20 L.Ed.2d
of the
saw her sister on the
bedroom, bleeding
panel
guilt stage
in the
of the trial and
floor
about the
preju
also saw a
knife near
further contends that because of the
head. She
Tracy
resulting
dice
from such he
entitled to
Miss
and a broken skillet on the
was
jury
penalty phase
a different
of
bedroom floor. Police and medical assist-
rejected
the trial.
considered and
iden
immediately
ance were
summoned.
We
Guinan,
tical
contentions
State v.
Hospital
Tracy
records
was
showed Miss
point
S.W.2d 325
comatose and brain dead when she arrived
denied.
hospital.
cut
her head
at the
She had a
trial,
ear,
right
punishment phase
knife cuts
At the
above the
“defense”
fingers,
gave
jury
Instruction
20 to the
on her
and a one-inch incision court
No.
her left ear
the knife entered
for their determination of whether
above
where
doubt,
beyond
through
spot
pene-
proved,
her skull
the soft
a reasonable
standards.
was substantial evidence that defendant
his confessions met constitutional
There
fully
completely
Miranda-ized and
“acquitted”
of the statu-
Tracy
claim that was
murdered Janie
that the defendant
by the
tory aggravating
circumstance
receiving money
any
or
for
form.
improperly worded verdict
monetary
jury
jury’s
thing of
value.
other
Further,
improper
the return
a verdict
presented the court
initially returned and
the refusal
form and
form which stated “there
verdict
places a
which
accept it is not a situation
disprove he entered the
no evidence to
jeopardy. State v.
money”.
in double
obtaining
house
the reason
Jones,
(Mo.App.1979);
judge
experienced
trial
told
Summers,
proper
form and
was not
verdict
accepted
form
(Mo.App.1973). The verdict
requested them to retire and read the in-
aggravat-
statutory
court found the
counsel,
although
structions. Defense
impo-
ing
that authorized
circumstance
improper”, object-
agreeing “the verdict
penalty.
sition
the ultimate
returning
ed
the court’s
*4
deliberations,
moved
a
further
and
for mis-
judge
only
in this
not
The trial
case
trial,
jury
The
there-
which was overruled.
correctly
jury
directed the
to further delib
accepted by
the verdict form
after returned
form,
in proper
return a verdict
erate and
the trial court in this case.
prejudice
to not
the defend
careful
doing.
in so
The court
any
ant in
manner
argues that
the trial
Defendant
first
the
merely
jury
told
that
verdict was
original
the
accept
punish-
court’s failure to
the
form,
them to
proper
not in
and asked
acquittal
as
ment verdict
an
the statuto-
The
read the instructions.
court
retire and
ry aggravating circumstance was errone-
why
jury
the
the
in manner indicated to
no
original punishment
the
ver-
ous because
form,
proper
clearly
in
and
verdict was not
jury
that the
dict form returned indicated
as to the form
did not indicate
desires
proof
had shifted the burden of
and consti-
The
they
that
should return.
court could
finding against
as to the
tuted a
the State
in a more
not have handled the situation
aggravating
circumstance
submitted.
is
point
neutral manner.
denied.
Next,
argues
improper
word-
defendant
aggravating
ing of
circumstance ver-
Defendant contends the court com
jury
form showed that the
did not find
dict
refusing to give
in
mitted reversible error
beyond
aggravating
a reasonable doubt
mitigating cir
instruction on
tendered
and, therefore, the
circumstance submitted
mitigating
cumstances which included
cannot be assessed because
penalty
death
having
sig
no
of defendant
circumstance
jury’s finding
aggravating
to
prior
criminal activities.
history
nificant
controlling
is
inten-
over its
circumstance
conference defense
At
the instruction
penalty. Finally,
tion to assess the death
prosecutor discussed the
counsel and the
argues that the trial court erred
admissibility
juvenile record.
of defendant’s
jury that the verdict was in
telling
in
stating
As
defendant’s counsel
a result of
to
form
this amounted
a
improper
because
to
her client’s
going
delve into
and a com-
verdict
State
directed
stating
prosecutor’s
juvenile record and the
on the evidence.
ment
to
so unless defense
not intend
do
did
The law is clear
when
no
witnesses stated defendant had
form,
improper
it
counsel’s
history,
returns a verdict
it was defense
any criminal
accept
court
refuse to
absence of
duty
position
of the trial
to
that the
in-
warranted the
require
history being
and
further
adduced
the same
deliberations
position is refuted
proper form is returned.
struction. Defendant’s
until a verdict in
Helm,
(Mo.
language contained MAI-
by the italized
519
v.
specifically states statu-
is not bind CR 2d 15.44 which
App.1981).
jury’s
verdict
are to be
tory mitigating circumstances
ing
accepted
the court and the
until it
held in
supported by
evidence. We so
discharged.
Hurley, 602
(Mo.
Battle,
492
S.W.2d
(Mo.App.1980).
Conse State
S.W.2d
1983).
being no
to
There
is no merit
defendant’s
banc
quently, there
—
support
statutory mitigating
U.S. -,
circum-
S.Ct.
L.Ed.2d 983
stance,
correctly
(1983),
refused
de-
and reaffirmed in
death-
proffered
fendant’s
instruction.
waived
pro
cases are not relevant
our
portionality
review
defendant’s citation
point
Defendant’s final
is that the sen-
of such cases do not aid him.
In cases
dispropor-
tence of death is
excessive
involving
statutory aggravating
cir
penalty imposed
tionate
in similar
cumstance of murder for the
cases, considering both the crime and the
receiving money
any
thing
or
other
of mon
defendant.
etary value,
approach
none
lying
the classic
imposition
Our review of the
in wait of the defendant in
case to kill
this
§
penalty
565.014,.
death
is mandated
helpless
crippled middle-aged
woman
RSMo 1978. Such a review includes the
money.
McDonald,
for her
See State
transcript
entire record and
and the report
1983);
S.W.2d
prepared
judge.
the trial
State v. Bat
Gilmore,
As State (Mo. 1982), denied, opinion filed. part separate sents in in S.W.2d 673 banc cert. BLACKMAR, Judge, concurring part youth that this defendant’s extreme believe dissenting part. comparable Mcllvoy’s to is a circumstance influence, susceptibility to as demonstrated suggestion in the uneasy I am with the psychiatric testimony. by expensive shown has the principal opinion that the defendant Mc my I reiterate observations introducing support burden (Mo. Donald, banc S.W.2d mitigating out in circumstance set 1983), juries to as to the reluctance of § 565.012.3.(1), Cum.Supp. RSMo death the sole stat impose sentences when follows: robbery. utory aggravating circumstance is significant histo- The defendant had no Gilmore, 661 S.W.2d ry activity. criminal 1983) comparable at all to this is not presump There should be rebuttable case. signifi has no such tion a defendant law, step I appears It is further It am out of history. cant established more, does not consti juvenile majority that a record Court in sentence review § 211.271, activity.” 565.014, “criminal Section tute RSMo 1978. believe under section, rel. that, RSMo 1978. See State ex R.L.W. obliged to under that we are 125, 127 Billings, 451 S.W.2d judgment, rather than independent exercise Webber, 1970); ex rel. Whittaker determining jury’s rec- simply whether the (Mo.App.1980); In supported by the record. ommendation C _, (Mo.App. re I would set As McDonald case, in this aside death sentence would affirm the conviction. however, 565.012.3.(1), refers to Section activity” to “criminal and not “convic- able show
tions.” The state should be to ripened into activity which has not
conviction, subject the trial court’s dis- scope
cretion to control of the trial
keep getting it too far out of from bounds.
There are indications in the record before de-
us of other felonies committed adult, may while an these fendant DUANE, Respondent, Willa Bernice during the have been offered into evidence I have Court’s vote trial. Because explored possibility that a not further DUANE, Appellant. James Warren taking of further remand for the No. WD 33806. might properly show instruct on refused to absence Appeals, Missouri Court of conduct. District. Western expressed in I adhere to the views Jan. 1984. 1983) imposition of a death sen- as to the Rehearing and/or Transfer Motion offender, very young and cannot on a tence Denied Supreme Overruled and Court say Bat- except to to these views add March gruesome. offense was much more tle’s opinion principal refers deliberate “lying in wait.” ness as demonstrated aggravated so
The case is not 1982), McIlvoy, Ehli, appellant. City, Kansas Philip C. victim which the defendant stalked Adelman, City, for re- I. Kansas Robert repeated shot him two occasions and then $1,000. spondent. promised in order to collect a ly,