*1 366 decisions, furthermore, only
Undеr our rel proportionality required.15 A Missouri, ative death STATE Respondent, set sentence does not to be aside simply impris life because decreed LEISURE, Appellant. David might onment in what seem to be a more No. 69470. aggravated This case.16 defendant willful ly person murdered a who had done noth Missouri, Supreme Court him, provoke simply satisfy En Banc. urge possess sports plotted car. He April 1988. period his course of action over a of several imagine Rehearing May weeks. It is hard to a clearer Denied 1988. example of a deliberate homicide. To one capital punishment, believes in this is
who strong case for ultimate sanction. impaired capaci
There is no hint of
mental
McIlvoy,
State v.
ty.
(Mo. 1982). comparable banc The case is Bannister, (Mo.
State v. 141 680 S.W.2d Johns, 1984), State v.
banc
(Mo. 1984), State v. 638 banc (Mo. 1982). See also
S.W.2d 739 banc Pollard,
State v.
(Mo.
1987),involving killing acquire in order to
an automobile. judgment is affirmed as to convic-
tion and sentence.
BILLINGS, C.J., DONNELLY,
WELLIVER, ROBERTSON and JJ.,
HIGGINS, concur.
RENDLEN, J., concurs in result.
Bolder,
(Mo.
determining
proportion-
S.W.2d
banc
16. The issue when
15. State v.
673
Mercer,
1982),
(Mo.
banc
ality
State v.
is not whether
of a death sentence
1981).
spoken
The writer has
out in favor of a
can be found in which
similar case
thorough proportionality
more
review. See
sentence,
imposed
but rather whether
a life
McDonald,
(Mo.
State v.
would succeеd Massud Local 110’s busi- manager. hospital ness While mind, illness, changed terminal Massud his Anthony accept job asking Leisure manager and allow of assistant business Massud, son, as business John serve manager Anthony of the union. Leisure 30, 1977, agreed. Ray Mas- On after June death, appointments were made sud’s positions to the Union accordance with agreement. Under the “terms” of the agreement, hir- Leisure would control the officers; firing John Mas- of union union operate sud would office. B, Robertson, Henry Asst. Public Defend- *4 began John Massud to hire Union offi- er, Louis, for appellant. St. consulting Anthony cers Leisure. without Gen., Webster, M. Atty. L. John William Moreover, Giordano, Massud hired Vince Morris, Gen., Atty. City, Asst. Jefferson Giordano, Anthony nephew of as a union respondent. for organizer. Trupiano, nephew Mike another Anthony Giordano, presi- of became Union ROBERTSON, Judge. May dent in of with Massud’s bless- capital juryA David Leisure of convicted and, ing again, Anthony without Leisure’s bombing murder the death of James consent. Michaels, Sr., punishment and fixed his of their Angered by Massud’s breach Court, appeal On Mo. death. direct to resulting of agreement power his loss Const, V., 3, appellant assigns nu- art. § union, Anthony met the Leisure within points primarily merous of error which deal Broderick, Paul, Ronald with brother jury process, the selection the venue Ramo, appellant Loewe and John Charles trial, the state’s the cross-examination be to consider John Massud should whether witnesses, appellant’s psychological refer- violating agreement. murdered for by infor- ence to other crimes the state’s Lei- group The no decision. The reached mants, and evidence and instructions political in St. Massud’s ties sures’ feared penalty phase. judgment trial City politics. Louis guilt appellant’s as sen- court tence of death is affirmed. Later, complaining that the un- Massud he high, too announced that payroll ion I. Broderick was planned to fire Broderick. record, According to the murder had only Anthony Leisure union officer question product of simultaneous Leisures, including appel- appointed. The power struggles organized an within crime Prator, lant, Broderick, Fred Ramo and a being composed per- entity as described meeting. Again, another convened Syrian and descent within sons of Lebanese Anthony’s subject preservation of was the Louis the Laborers St. and Local again group power within the union. The victim, Union, by was headed kill thought it to Massud unwise Sr.; Michaels, A. Miсhaels was the James stated; they nor did wish reasons earlier reputed Syrians.” head of “the The record killing by the Italians start a war with second, competing that a further reveals Michaels, They selected James Trupiano. unit Louis organized crime existed St. Sr., would Michaels’death their victim. Italians,” Antho- as “the headed known among position the Leisures’ enhance ny Giordano. strong mes- Syrians. It also send a would leadership. The sage Leisures early Ray promised An- union In Massud protected cousin, had Leisure, that Michaels thony appellant’s that he also believed brother, the murderer of older pieces sped murderers threw out as the van along. Illinois, they Richard. washed the van Returning Missouri, they several times. attempt After an unsuccessful to shot- stopped supply at an automobile store restaurant, gun Michaels at a St. Louis appellant bought where new windshield coconspirators and his decided to wiper attempt blades in an to remove all September bomb Michaels’ car. On explosion traces of the from the A van. 1980, appellant and Ramo stole a car that stop drug brought rubbing at a store alco- matched the make and model of Michaels’ lotions, shaving hol and which were used to car, practiced planting Appel- a bomb. explosives remove the odor of from the city lant followed Michaels around the hands the killers. learn of his habitual movements. Approximately murder, a week after the 17,1980, September appellant spotted On Vitale, Paul Leisure met with John the new parking Ray- car in the lot of Michaels’ St. (Anthony leader of the Italians. Giordano participants mond’s Catholic Church. The died.) agreed had Leisure and Vitale plan to kill Michaels moved into Syrians would control the Local 110. Leisure, Anthony action. Broderick and Two relatives of Michaels lost their union picked up belonging Ramo a van to Broder- jobs immediately after the murder. They ick’s son. drove the van to another location, they appellant guilty where retreived the bomb found of first- kill, joined appellant. Prepared degree punishment phase now to murder. At the Church, trial, Raymond’s park- following drove St. found the Appel- (1) statutory aggravating the van next to the victim’s car. circumstances: *5 appellant knowingly great lant slid under Michaels’ car and attached that created a bomb; quartet drove the van to a person by risk of death tо more than one strategic place they where could see Mi- normally means of a device which would be chaels return to his car. The victim came hazardous to the lives of more than one grandson, out of the church with his 565.032.2(3), 1986; James person, Section RSMo Michaels, III, organizer. a Local 110 union (2) appellant agent employee that was an The senior Michaels entered the car and and his direction mur- Paul Leisure began grandson through talking with his victim, 565.032.2(6), dered the Section open Appellant suggested an window. that 1986; (3) RSMo the murder of victim be detonated at that instant in bomb depravity of mind and was there- involved Anthony kill Michaels. Lei- order to both vile, wantonly outrageously fore and horri- sure convinced otherwise. 565.032.2(7), ble, and inhuman. Section jury appel- found RSMo 1986. The also The van followed as the elder Michaels Corrupt Influenced and lant’s Rackateer Anthony away drove from the church. (RICO) Organizations as a Act conviction tried to detonate the bomb several times nonstatutory aggravating circumstance. success; the radio controlled deto- without punishment at fixed nating refused to work. For a mo- device death. ment, the murderers lost Michaels but saw chase, Giving they cаught his car on 1-55. challenge appeal, appellant does not On again Anthony
their victim. threw the supporting sufficiency of the evidence device; detonating switch on the the bomb the conviction. Frustrated, go Anthony off. threw did again again finally the switch until II. exploded. upper torso
bomb victim’s points of Appellant first raises several ripped body of his from the rest pro- focusing on the selection error It struck the wind- thrown from the car. cess. following. shield of the vehicle A. immediately highway The van left the trial initially contends that Breaking up Appellant Illinois. and headed toward challenge devices, denying court erred detonating remote control Radio, television, maybe things. Zewiski. cause venireman discussing things even with friends opinion from Zewiski had formed an claims yours? regarding appellant’s publicly rumor and
guilt. VENIREMAN ZEWISKI: Yes. Okay. any And do MR. ROGERS: adage begin We familiar your any friends have access informa- determining qualifications pro of a “in than radio tion case other about very spective juror, the trial court has wide and TV? discretion, ruling will not be and the court’s Well, clearly ZEWISKI: some. appeal it VENIREMAN disturbed on unless against and constitutes clear Okay. the evidence you Do MR. ROGERS: Some. Treadway, disсretion.” State par- abuse friends are related or any have 1977), cert. enforcement, S.W.2d en- ticipated judicial law denied, L.Ed. 439 U.S. forcement? (1978).
2d 135 No. VENIREMAN ZEWISKI: you ROGERS: Do have voir dire portion of follows: MR. The relevant people know on side friends that either prosecutor]: MR. You ROGERS [The matter? of this opinion; formed an is that correct? VENIREMAN ZEWISKI: Yes. Yes. VENIREMAN ZEWISKI: Now, Okay. in- ROGERS: those MR. opinion you MR. ROGERS: And that dividuals, respect you I take them it formed, you opinion set aside if can they're fact friends and the you juror were a this case base yours. solely testimony? your decision Yes. VENIREMAN ZEWISKI: No, I don’t VENIREMAN ZEWISKI: you expect ROGERS: And would MR. good juror par- on this think I'd make you yours talk to that friends would ticular case. what believe to be you and tell Well, MR. ROGERS: is there some- truth; correct? is that thing particular pre- case that about ZEWISKI: Yes. VENIREMAN being juror, good vents from some- Now, with that ROGERS: thing particular? MR. *6 in mind, though, do understand that you Yes. VENIREMAN ZEWISKI: courtroom, you’ve got testimony, and you get MR. rather ROGERS: Would sitting around at some- it’s than different bench, specific up that do at the or about talking and about body’s dinner table pretty general? you you keep think can it said. And what I heard so and so what Well, I— VENIREMAN ZEWISKI: me hall told somebody down at the union Do you MR. know ROGERS: people have you Here hapрening. parties involved? scrutiny by sides. stand both that have to No. VENIREMAN ZEWISKI: in a questions to answer People have Okay. Is there some- MR. ROGERS: have We very environment. technical thing that existed the situation about and questions by, we ask rules we you any led event that caused to this up to people put can those attorneys that kind fear? crucible, put in a them they call what just No. I VENIREMAN ZEWISKI: And them. really examine there opinion, formed and that— an occur, thing whole you watch this when Well, You MR. now wait. ROGERS: kind of decision some you have to make Obviously you opinion. formed an you hear. what based on you opinion came formed that before out you find may come out that itAnd today; is that here correct? he you that friend who told your Oh, I just didn’t VENIREMAN ZEWISKI: full happened so heard so mean, today. So— informa- know about had this you I hot air. know, You wrong source. Now, opinion you tion from MR. ROGERS: happens. it probably based on lot formed was prejudice ZEWISKI: Yes. juror, VENIREMAN or bias the mind of the he be sworn. mind, MR. ROGERS: With that in saying. you I’m that’s what Could listen determining the existence of bias testimony and listen to it an unbi- prejudice, opinion the test is whether an ased manner? “readily yield held a venireman will case, juror evidence and that the
VENIREMAN ZEWISKI: Well—
upon
will determine the issues
thе evidence
you
MR.
if
ROGERS: And
found out it
court,
free from bias.” adduced
your
contradicted with what
next-door
Wilson,
(Mo.1969).
“Well,
said,
neighbor
say,
sorry, Betsey,
prejudice
Whether bias or
exists is a find
you’re
hap-
out of luck.
I heard what
fact,
the determination of which “is
oath,
pened
way
under
and this is the
I
essentially
credibility,
one of
and therefore
asking you
rule.”
That’s
I’m
what
Patton v.
largely one of demeanor.”
about.
Yount,
1025, 1038,
U.S.
Right.
VENIREMAN
ZEWISKI:
(1984).
my mind. presen opinions yield which will to the fact Okay. you MR. ZVIBLEMAN: Do persons whose tation at trial and those you think that still in influence some opinions yield. not so will way? Zewiski said she would Venireman Yeah, I VENIREMAN ZEWISKI: do. judge duty do her “if I have to.” The trial Okay. MR. ZVIBLEMAN: Thank for cause. determined not to strike her you. judge for cred cannot fault the trial “[W]e 546.150, 1986, provides: Section RSMo testimony, in which she iting her earliest opinion aside good challenge put her It shall be a cause of to a said that she could to,’ testi the later she had juror he formed rather than has or delivered an 7i]f issue, persuaded opinion mony in defense counsel on the material fact which tried, need evidence appears logically she would to be but if it that such her that might have.” any opinion she opinion only is founded on rumor and to discard Yount, 467 v. Patton newspaper reports, [Emphasis and not such as to added.]
373 state, the defendant and the court. It 1039-40, at 2893. 104 S.Ct. at U.S. duty investigate to the of all concerned point is denied. thoroughly in order to assem-
those views
Antwine,
qualified jury.”
743
ble the most
B.
60.
S.W.2d at
prosecutor's
objected
the
Appellant
to
techniques on
dire
voir
qualifying”
“death
Discovery of the nature and extent of an
assigns
to
trial court’s
error
the
and now
requires
only deep
bias
individual’s
objections.
failure to sustain his
probing
opinions
to
held but also the
as
sought
the
argues
to commit
that the state
portion of
of some
the facts
revelation
returning
penalty by
the
jurors to
death
said, “an
the case. As we have
insufficient
referring to the facts of
specifically
description
jeopardizes appel
of the facts
potential
to
asking
jurors
case and
these
right
impartial jury.”
Ant
lant’s
an
in
event
speculate as
their verdict
wine,
at
On the
743 S.W.2d
58.
other
proved those facts and
the state
try
hand,
permitted
counsel
aggravating
circum-
showed sufficient
presentation of
dire
facts
case
voir
Witherspoon
Appellant relies on
stances.
Wilkersоn,
explicit
in
detail.
616
1770,
510, 521,
Illinois,
U.S.
v.
Thus,
829,
(Mo.
1981).
“a
banc
S.W.2d
1776,
(1968). Witherspoon
refused Appellant’s this case. fair. the circumstances of denied.
point is it MR. ROGERS: Is accurate? It’s ac-
VENIREMAN CHENOWETH: curate, spoke it yes, You better than sir. D. I could. argues the trial court Appellant next that understanding clarify its In order challenge overruling appellant’s erred inquired: position, her the trial court Audrey for cause of venireman Chenoweth “Now, again, I have to ask Ms. Chenoweth opinion capital in favor of because “her that, you based on consider would ... ... substantially punishment prevent or would you se- types punishment if were both range impair ability her consider the full got juror if you a lected as punishment....” proceedings?” re- point Chenoweth strong pref- initially stated a Chenoweth “Yes, sponded, sir. If we did.” penalty. believed erence for the death She argues the court’s taxpayers is a to feed it burden position of question left Chenoweth person sentenced to life im- and clothe a qualifications judging for service her own elaborated, however, “I prisonment. She disagree. judge did jury. We punishment fit do believe the should she а ask whether would be not Chenoweth capital Whether it be a murder or crime. impartial juror. question, a fair and Such life, I or would have to death of juror is the essence the answer weigh very, very carefully. Without a qualification, certainly have allowed would my reasonable doubt mind.” qualifications; judge her own Chenoweth you, Appellant’s counsel “Could asked: In inquire. so the trial court did not but guilt phase, you after could consider stead, in order to determine Chenoweth’s circumstances, things mitigating about issue, punishment the trial position on the David, possibly, change your that could sought unequivocal answer. We court an imposing penalty?” mind from the death believing judge for trial do not fault responded, “After I listen to Chenoweth final, unequivocal answer. Chenoweth’s issued, judge would be a the law that the it dire Voir both an educational and Appellant’s in- decision then.” counsel process. A determination discovery further, you quired “But could follow his prejudice depth of bias and existence and considering death instructions both the poten- only accurately after be made can imprisonment?” penalty and life Chenow- legal require- juror understands tial stated, “Yes, very it would be difficult. eth We responsibility juror. of her ments Yes, suppose I so.” to court to come expect veniremen do Later, following exchange place took unerringly cor- legally or with a sufficient prosecutor and Chenoweth. between requirements understanding rect think MR. That’s what I ROGERS: this edu- jurors. Often imposes on law life in getting to. consider he’s Can person’s with a process combines cational And ob- those —in some circumstances? is about respect duties she for the serious death, viously prove if I didn’t he merited understanding yield a new to undertake to consider life? you would then follow, of, firm commitment and a Yes, VENIREMAN CHENOWETH: notions preconceived irrespective law as an alternative. trial preferences. personal policy though you’re MR. ROGERS: Even to determine position in the best happy punish- with that particularly genuine commitment whether ability ment? to assess not, given superior responses. totality person’s aof No. VENIREMAN CHENOWETH: *10 376
The of Carr, standard review under these cir- 606, (Mo. 687 S.W.2d 612 cumstances is abuse of discretion. App.1985). We find point none on this record. The is denied. exposure Our review of the of the venire publicity does not a indicate level of III. prejudice resulting publicity from Appellant urges publici- that the mаssive impossible rendered a fair trial in this case. ty preceding the trial this case demanded As Supreme the United States Court has change and, that, of venue absent individ- said: sequestered ual and voir dire. perfect- That time soothes and erases is a ly phenomenon, natural familiar A. all.... Not all members of the venire 32.04(b)requires Rule that motions put had prejudice, aside earlier as the change in felony venue cases be filed They voir dire disclosed. retained their thirty (30)days arraignment. Ap within opinions, disqualified. fixed and were pellant change did not file his motion for testimony suggests But the that the voir nearly years venue until two after the ar selecting dire resulted in those who had raignment prior and less than three weeks forgotten persuaded or would need to be to trial. We thus review the trial court’s again. plain denial of motion for error Patton, 1034, 104 467 U.S. at at S.Ct. 2890. only injustice. and will reverse for manifest Rule 30.20. Voir dire achieved a similar end here. injus We therefore find no manifest eighty-one prospective jurors com- judge’s grant tice in the trial refusal to prised panel the venire in this case. More change of venue in this case. panel than a third of the had either not hearing heard of the crime or recalled noth-
ing
about it
the more than six and one-
B.
years
half
between the murder and the
assigns
also
to the trial
error
trial. Several members of the venire re-
court’s refusal
to conduct individual and
they
membered little or no detail of what
sequestered
Appellant urges
voir dire.
had heard or read. The trial
struck
holding opin-
responses
of veniremen
pretrial
16 veniremen for cause
because
ions about
infected other venire-
publicity.
prejudice.
men with
course,
question
Of
the relevant
not whether
publicity
long recognized
there was
surround
We have
that “the
crime,
prospective
qualifica
nor
jurors
whether the
examination of
as to their
jurors
supervision
in a case
publicity
remembered the
tions is conducted under the
crime;
question
or the
and extent of
the critical
the trial court and the nature
jurors
“whether
ask are discre
questions
... had such fixed the
counsel
Smith,
opinions
judge impar
tionary
could not
with that court.” State v.
1983).
417,
(Mo.
tially
guilt
banc
defendant.” Patton
649 S.W.2d
428
Yount,
1035,
Here,
examining
ve
initially
467
104
after
twelve
U.S.
S.Ct. at
2891,
717,
pretrial
Dowd,
citing
individually
Irvin v.
366 U.S.
niremen
on matters
723,
1639, 1642,
publicity,
81
found the exercise
S.Ct.
tion when record 83 L.Ed.2d county “the minds of the inhabitants of the U.S. (1984). no evidence prejudiced against The record exhibits are so the defendant prejudice. procedure produced that a fair trial cannot be had there.” that this Q was the shot- point One those events of discretion. find no abuse We Michaels, Charles gun assault of John denied. *11 correct? A Yes. IV. shotgun Q assault Dennis And the in the state Appellant finds error next time? occurred at same Day that eliciting examination the names on redirect A Yes. of other crimes in which the of victims the shoot- Q was One those events witnesses, Ramo and Ronald John state’s Komhardt; execution Michael Broderick, Appellant ar- were involved. is that correct? “cre- gues questions such and answers that A Yes. appellant’s involve- ated an inference Q you that And have testified about
ment in other crimes.” you not? past, (Tr. 283-284). plead guilty to sec- A Yes. IV Ramo and Brоderick ond-degree exchange for their murder in Crawford, 619 S.W.2d In State v. against Together appellant. testimony (Mo.1981), said: 735, 740 this Court families, in placed were their proper to it is On redirect examination Program. On Protection Federal Witness any witness on matters which examine a cross-examination, in- appellant’s counsel refute, infer- to weaken remove tend he considered oth- quired of Ramo whether sug- ences, implications impressions, on he “had er assaults and murders which may from gestions which have resulted you possible exposure.... made [w]hen cross-examination, testimony not- his deal, your your thinking about were may be withstanding elicited the facts cases, potential liability in correct?” The to prejudicial the defendant. implication questioning of this was obvious that members Beyond the fact testimony favorable was not that Ramo’s appellant had aware that Ramo were trustworthy given in return because it was Mi- in the murder of James been involved leniency on addition- for the state’s several chaels, Sr., no indication whatev there was and/or he com- al murders assaults which phase partici defendant guilt er in the mitted. as murders or pated any in of the other alluded. apрellant’s counsel saults which response, prosecutor inquired excluding evidence, the rule Absent such Ramo on redirect examination: applicable. proof of other crimes Ramo, Q Rogers) Now, (By Mr. I Mr. (Mo. Pilchak, you to was don’t want talk about who App.1983). events, you’ve in been involved these but cross-examina- turn to Broderick’s We by facing given a benefit the death he, too, faced testified tion. Broderick penalty; is that correct? been charges and that he had other state A Yes. leniency for his testi- in return treated with pro- Q you’ve family in return had to And his Broderick said that mony. Protection people that were Witness vide information about in the Federal enrolled taxpayers incidents, Program a cost in correct? and at involved other $241,000. prosecutor Again, the exceeding A Yes. crimes specific redirect into inquired on Q those incidents was One of testify part Broderick would burning in a bombing led to death prosecu- again, the bargain. And plea Faheen; George is that correct? car of appropriate bolster- questioning was tor’s A Yes. point is denied. ing. The Q incidents was One of those Spica, cor- V. bombing Paul death John rect? trial asserts Appellant next оbjections overruling his erred court
A Yes. state’s cross-examination of B. witnesses, psychologists Cuneo and Arm- Appellant alleges prosecu that the Appellant our. argues prosecu- that the tor’s during closing argument statements questioning tor’s persistent, prejudicial guilt phase implant were meant to argumentative jury’s attempt appellant and was an mind the notion had an personality antisocial discredit that such these witnesses. ar- a conclusion was without “a shred of evi- gues prosecution’s that the cross-examina- dentiary support”. Both and the pernicious (1) tion “had two effects: state draw reasonable inference discredit nothing the witnesses dint of *12 from the evidence which each believes more substantial than sarcastic and vitriolic good justified. faith to be State v. New rhetoric, (2) implant jury’s and to lon, 606, (Mo. 1982). 627 S.W.2d 617 banc minds, without a evidentiary sup- show of Contrary assertion, the port, appellant the idea that had an antiso- evidence, record contains sufficient includ personalty.” cial psychologists, statements from the Appellant’s arguments focus on two dif- support the by prose inferences made the (a) aspects: ferent during conduct cross-ex- сutor. (b) during closing amination and conduct VI.
arguments.
Appellant argues that
the trial court
admitting photographs
erred in
of the mur-
A.
George
aggra-
dered
Faheen as evidence of
A trial court
is vested with
penalty phase
vation in the
of the trial.
broad discretion in its control of cross-ex
During
trial,
penalty phase
of the
amination as a result of the trial court’s
appellant stipulated to his conviction in the
superior ability to assess the
of
tenor
cross-
system
federal
under the Racketeer Influ-
through
exposure
examination
firsthand
Corrupt Organizations
enced and
Act
the witnesses and the manner and form of
(RICO).
jury
received this information
questioning. Myers
City
Palmyra,
v.
copy
judg-
the form of a certified
of
671,
(Mo.App.1968);
431 S.W.2d
679
State
report
ment and
of
commitment
the RICO
Lue,
(Mo.1980);
v.
379
charged in the federal indictment. The tri-
course,
principle,
with the
consistent
pointed
to the
specifically
out
phase,
al
long acсepted,
that in the
had not been convicted
the defendant
much that
jury is entitled to receive as
alleged in
other murders
of the various
possible in order to make an
information as
graphic
indictment. Under
punishment.
decision as
informed
during
153, 204,
gruesome evidence received
96
Georgia, 428 U.S.
Gregg v.
trial,
(1976),
no error
2909, 2939,
guilt phase of the
we find
49 L.Ed.2d
S.Ct.
602-3,
reversing
Ohio,
calls for
as-
98 which
v.
438 U.S.
Lockett
2954, 2963-64,
(1978),
jury.
sessed
57 L.Ed.2d
(Mo.
Gilmore, 661 S.W.2d
v.
State
if
sake of
we assume error
Even
1983).
banc
nonprejudicial.
error
argument,
jury listed the RICO conviction as
infor- The
publication
After the
the RICO
nonstatutory aggravating circumstance. It
pho-
jury,
the court admitted
mation to
Faheen,
aggravating cir
George
statutory
found three
body of
also
tographs of the
cumstances, any
suffi
bombing. The
of which
alone
killed in a car
had been
who
justify
penalty.
cient to
the death
State
admonished the
court
murders; Malone,
S.W.2d
convicted of these
had not been
*13
LaRette,
cross-examination,
1985);
96, 102
police
the state’s
wit-
State v.
S.W.2d
(Mo.
1983);
Mercer,
had
had “a
appellant
that
banc
State v.
S.W.
ness testified
prove
(Mo.
1981).
his
for
chance to
innocence
the mur- 2d
banc
George
of
Faheen”.
der
jury
The
the
were clear and
facts before
Blair,
arguеs
Appellant par-
v.
638 essentially
State
State
uncontroverted.
(Mo.
1982),
banc
State v. Gil-
as a
ticipated
S.W.2d
in the selection of the victim
(Mo.
1983),
more,
He
a
target
tion. held defendant’s facts, includ- From these uncontroverted following an arrest for an un- confession 1-55, carnage on photographs of the murder was material and rele- related both die. appellant to Given sentenced it vant as revealed the defendant’s motive jury, already before grisly evidеnce being in to kill the victim for whose asked simply challenged photographs were Malone, court death he stood trial. vic- photographs of the cumulative of the found no error the introduction evi- preju- no find body in this case. We tim’s prior relating graphic details of dence point is denied. dice. The upon crimes a defendant was violent which convicted. VII. the trial noted, next contends has
As trial court overruling objection ruling offered court erred discretion evidence broad jail su- testimony of St. Louis capital penalty stage of a case. the rebuttal during the punish- during the perintendent Brown subject photographs L.T. agree we While jail guard A phase of the trial. gruesome, were ment are fact remains appellant for testified surrounding named Gleiforst to the circumstances relative On cross- prisoner”. an “ideal George Leisure was the death Faheen and connected had examination, he denied that Gleiforst of the six criminal acts and tied one suspended days allowing capacity been two for 2. Whether the of the de- appellant appreciate criminality visitor to see without authoriza- fendant to proper tion or identifiсation. The State his conduct or to conform his conduct to Brown, supervisor, requirements substantially called Gleiforst’s to tes- of law as suspended tify impaired. that Gleiforst had for been days allowing appellant the favor two age 3. The of the defendant at the of this unauthorized visitor. time the offense. may You also consider that the defend- scope testimony of rebuttal ant a mental at the had disease defect of trial court and is under the control will Anthony time of the murder of James only for of discretion. be reversed abuse Michaels, Sr. Crain, State 762-763 You also consider circum- Here, no (Mo.App.1982). the facts show stances find from the evidence had testified abuse of discretion. Gleiforst mitigation punish- extenuation prisoner”. an “ideal had been ment: denied that he had received sanc Gleiforst im- 1. That Fred Prater received total granting appellant the of an tions for favor munity prosecution by from both prisoner. Both Gleiforst’s unauthorized State and Federal Governments. potential favoring ap truthfulness and bias criminal 2. That Federal and State pellant pertinent were on rebuttal. charges against John Ramo have been testimony clearly Brown’s relevant dropped and reduced and his sentences point those issues. The is denied. guaranteed to run concurrent-
have been
ly-
VIII.
Federal and State criminal
3. That
Appellant next
the trial court
claims
*14
charges against
Joseph Broderick
Ronald
refusing
penalty phase
erred in the
his
dropped and reduced and
have been
appellant’s
submit
Instruction No.
to the
guaranteed to run
sentences have been
jury.
proposed
The
instruction would have
concurrently.
nonstatutory mitigating cir-
enumerated
any
you may now consider
4. That
relating
cumstances
charac-
“lingering
you may have con-
doubts”
background.
ter and
guilt. Lingering
cerning defendant’s
proffered
Instruction
and refused
state of mind
is defined as that
doubt
No. 1 read as follows:
“beyond a reasonable doubt”
between
“beyond
possible doubt.”
all
Michaels,
Anthony
Sr.
NO. 1
5. That James
INSTRUCTION
of
Syrian faction
the leader of the
aggra-
If
sufficient
you decide that a
organized
in St. Louis.
crime
vating
or circumstances ex-
circumstance
minimal
had a
6. That the defendant
death,
imposition
of
as
ist to warrant
formal education.
amount of
No._,
it
submitted in Instruction
will
lacked normal
defendant
7. That the
duty
your
then become
to determine
capabilities.
intelleсtual
mitigating circum-
whether a sufficient
by
raised
had been
8. That defendant
out-
stance or circumstances exist which
throughout life.
relatives
several
aggravating
or
weigh such
circumstance
of
In de-
is a member
circumstances so found to exist.
That the defendant
9.
loss.
deeply mourn his
ciding
question you may
family
consider all
will
relating
of
evidence
to the murder of
has demon-
the defendant
10. That
Michaels,
Anthony
James
Sr.
ability to be a
capacity
strated
society.
prison
contributing
member
may
You
also consider:
imprison-
to life
That if sentenced
acted un-
11.
1.Whether
the defendant
probation
possibility
ment without the
domination of another
der the substantial
will
defendant
years,
parole
or
for
person
persons.
or
exist,
by
you must
eligible
you to
then
he is first
found
years
old when
be
fixing
pun-
defendant’s
parole.
return
verdict
for
imprisonment
by
life
for
ishment as
suffi-
unanimously
that a
you
If
decide
eligibility
Corrections without
Division of
circum-
mitigating circumstance or
cient
probation
parole
he has
or
until
for
outweigh
aggra-
stances exist which
fifty years
his
a minimum of
served
vating
or circumstances
circumstance
(L.F. 108)
exist,
sentence.
you
you
then
must
by
found
pun-
fixing defendant’s
return a verdict
Young,
In
You also consider or defect at the ant had a mental disease argues death Finally, appellant that the Anthony the murder of James time of facts, and is excessive penalty, under these Michaels, Sr. imposed sanction disproportionate consider circum- set You also and that this Court should similar cases you find from the evidence its stances which of in the exercise his sentence aside punishment. 565.035.3(3), mitigatiоn in extenuation or Section independent review. dispro- Appellant focuses you unanimously suffi- RSMo 1986. If that a decide argument hypothesis portionality mitigating circum- cient circumstance or retarded, poorly mentally aggra- mildly outweigh that he exist stances abuser, follow- educated, and a vating a substance circumstance or circumstances 382 himself, dangerous mind, product depraved
er not
but under the
of a
a mind which
of others.
right
wrong
domination
from
knew
but which chose to
kill to further
the economic ends of his
through
This murder sends shock waves
family.
penalty
The death
neither
dis-
society.
the soul of civilized
It is so for-
proportionate nor excessive.
eign
acceptable
to the
manner of conduct-
nearly beyond
“business” as to be
com-
Appellant knowingly created
risk
of
prehension.
society
Civilized
need neither
person
death more than one
means of
forgive
condone nor
crimes which make
normally
a device which would
be hazard
mockery
such a
horrible
our relation-
person.
ous to the lives of more
one
than
laws,
ships,
system
of our
and of our
565.032.2(3).
Section
The detonation
an
justice.
device,
explosive
designed
placed
and
to kill
drivеr,
highway
on an
found that this murder
interstate
is un
involved
depravity
questionably
“torture or
of mind” and that the
hazardous
the lives more
“outrageously
wantonly
murder was
person
displays
complete
vile
than one
and
or horrible or inhuman.” Section 565.032.-
indifference to the lives of others. This
2(7).
involving
in State v.
Murders
similar levels of
upheld
Court
the death
depravity
consistently
Griffin,
Appellant’s actions were techniques for in- perfect swift pitiless; quire and scienceless and were BLACKMAR, J., part in and practiced car concurs stalling a He on a car bomb. part separate opinion in in its make dissents which he had stolen because He was filed. of the victim’s car. matched that participate; or he no threat to
under
duress
WELLIVER, J.,
part
in
and
concurs
proceed
to
suggestions as to how
made
part
in
in
dissents
and concurs
suggested
unfolded. He
detonation
events
concurring
part
in
and
separate
in
bring
deaths
of the bomb
about two
dissenting
part opinion
in
Later,
parking
indepen
he
the church
lot.
BLACKMAR, J.
dently arranged for the concealment of the
was
used in the crime. David Leisure
van
BLACKMAR, Judge, concurring in
hardly a
This case is thus distin
follower.
dissenting
part.
in
part and
guishable
prior cases in which a less
from
aggravated capital mur-
This is the most
de
penalty
imposed because the
er
come
our Court
der case that has
before
“weakling
a follower”.
was a
fendant
nothing
Judge
I
for review.
can add
(Mo.
Mcllvoy,
v.
State
629 S.W.2d
eloquent descriptiоn of the
Robertson’s
1982).
banc
atrocity
might
won-
offense. One
der, then,
quick
why
should not be a
there
that because oth
Appellant claims
of the conviction
sentence.
affirmance
in
did
re
participants
the murder
er
I consider a manifest er-
Because of what
penalty,
imposition
its
here
ceive
death
however,
phase,
I cannot
ror at the
The sen
disproportionate and excessive.
sentence.
vote
sustain the death
are
by appellant’s cousin
tences received
proportionality is
determinative of the
recognized
has
that:
sue. This Court
I.
sentencing
Any capital
may
scheme
occa-
properly
into
prosecution
The
introduced
sionally produce an
out-
aberrational
under
the defendant’s conviction
evidence
determining
The issue when
come....
Schlup,
act.1
the federal RICO
proportionality of a
sentence is
death
1987),
(Mo.
makes it
banc
724 S.W.2d
any
case can be
not whether
similar
history
the defendant’s criminal
clear that
jury imposed
in
a life
found which the
brought
penalty phase
in
out
be
sentence,
death
but rather whether the
case in which the death sentence
disproportionate
sentence is excessive
infor
sought.
The
is entitled
full
(cita-
light
of similar cases as a whole
compa
past,
the defendant’s
mation about
omitted).
tions
sentencing
is available to
rable to what
Mallett,
order to
State
presentence report,
in a
1987).
determining
sentence. The
assist it
objection simply because
has no
defendant
cases,
de-
review
other
After a
shocking
gruesome.
may be
the details
case,
hold
fendant and the facts
this
we
was,
proper
death
Here, however,
prosecutor was not
therefore,
dispropor-
neither
nor
excessive
evidence
simply
introduce
content
offered,
penal-
tionate.
at the
He
prior conviction.
one of the
photographs,
ty phase,
two
Fahecn, and
George
one
bombing death of
X.
bombing.
one of
scene of
is af-
judgment of the trial court
finding
obliged to make
was not
firmed.
pictures
bombing,
so the
regard
reaching
its
any way
it in
did not aid
*17
offer
only purpose
the
DONNELLY,
The
BILLINGS, C.J.,
decision.
and
By estab-
inflame.
and
HIGGINS, JJ.,
prejudice
to
concur.
was
and
RENDLEN
by showing
criminal
among
pattern
two
established
punishes,
is
The act
§
18 U.S.C.
1962.
1.
ten-year statute
period
aof
"enterprise"
within the
things,
offenses
the conduct of an
other
through
rackеteering activity.” A
of limitations.
"pattern
here,
pur-
photograph objected
The
to
ex-
proper
not a
precedent,
lished
this is
one,
neither needed nor offered
hibit
pose.
any
of the conventional reasons or
receiving
error in
There is constitutional
victim,
identify
purposes,
the
to
—to
sole-
in a death case which serves
evidence
inju-
the
and location of the
show
nature
passions.
ly
inflame or arouse the
ry,
prove
or
the character of
to illustrate
—
-,
Maryland,
U.S.
Booth v.
surrounding
weapon,
the
circum-
the
(1987).
2529,
jury found sufficient murderer free room and providing the death sentence. stances to authorize rulings probably are Both within board. tendency in their pictures is The vice of the in our court’s discretion as defined the passions. the arouse to inflame cases, appear- I am concerned about but erased, many be however This vice cannot ances. statutory the aggravating circumstances challenge to a judge overruled a The also jury finds. an had formed who stated she juror simply for the justification There no was indicated opinion and whose last words admitting pictures, over judge’s these trial get that she could doubt as to whether timely objection. prosecutor should out her Nei- opinion completely mind. judge not have offered them and trial her probed nature of ther side accepted of- supinely should not question in detail opinion, but rеluctance to un- They fer. should have been excluded jurors is under- presence other holding Floyd, supra. v. der State willing is not judge If the trial standable. no the exercise of There was room for her juror on the basis of to excuse discretion. opinion an formed that she had statement principal I am concerned because in cham- expedients as examination such give an opinion the trial seems opinion is her whether to determine bers ruling. At the quittance absolute on See should be considered. disqualifying something very be said so least should (Mo. banc Jones, 749 S.W.2d State rulings not be inappropriate similar will 1988). Now, pictures, future. on we made guilt is without error. finding of Newlon, place are at the same that State v. depraved criminals the most Even 1982), us placed scrupulously fair which is to a trial entitled regard argument. to oral The word Because of the at stake. his life is when penalty “anything goes" at the out that pictures of Faheen admission of to a phase. justice should adhere Missouri sen- I set the death slaying, aside would phase higher should standard. The for retrial remand case tence and legalized lynching. not become a phase. suggestion I am also concerned about receipt pictures Reports file with our statu- prejudicial. (§ 565.035.6)show that other
tory officer wisdom, did not authorize
juries, in their defendant’s cousins
death sentences Leisure, guilt whose
Anthony and Paul