*1 Missouri, Respondent, STATE MALLETT, Appellant.

Jerome

No. 68030. Missouri, Court of

Supreme

En Banc.

June 1987.

Dissenting Opinion July

(Blackmar, Judge).

Rehearing July Denied

engaged performance of his official duty, 565.032.2(8), (3) § the murder person committed who es- caped from the lawful custody peace of a officer, 565.032.2(9). Affirmed. (1) Defendant contends: the evidence support verdict; (2) insufficient evidence of crimes he committed Texas shortly before the murder was erroneously trial; (3) admitted at an instruction defense of accident should have been sub- mitted; (4) an instruction on circumstantial submitted; (5) should have been *4 prosecutor improperly argued his char- guilt acter during phase; (6) prior his character and criminal activities was erroneously admitted during penal- ty phase; (7) one witness improperly testi- (8) fied expert; as an videotaped his state- (9) ment erroneously admitted; was Mis- penalty souri’s death discriminatorily ap- plied; (10) Missouri’s death is un- constitutional; (11) his im- sentence was posed under passion the influence of prejudice; (12) dispro- his sentence portionate imposed to sentence in similar cases.

In assessing a sufficiency of the evidence challenge, evidence, together with all reasonable inferences to be drawn there from, is light viewed most favorable Markie, Murphy Columbia, Kathleen for to the verdict and evidence and inferences appellant. contrary to the verdict ignored. are E.g., Guinan, Gen., Webster, Atty. and John L. William banc), Gen., City, Morris, Atty. M. Asst. Jefferson 227, 83 respondent. for On February 4,1985, defendant robbed a jewelry Plano, store in Texas. Based BILLINGS, Judge. the robbery victim’s identification of de- fendant as holdup man, convicted police Jerome Mallett Plano Defendant obtained a murder, 565.020, warrant for defendant’s of the first arrest. § The placed warrant Highway computer of Missouri State RSMo system of the National Froemsdorf Crime Trooper James M. Information- Patrol (N.C.I.C.). Center death, finding the The system a N.C.I.C. is sentenced to provides law agencies circum- statutory aggravating enforcement following na- tionwide outrageously access to persons (1) information on the murder was stances: wanted for criminal vile, inhuman in offenses. The last in- wantonly horrible or formation mind, sent police 565.- depravity of Plano involved was N.C.I.C. 1986; (2) murder was that might "the defendant 032.2(7), be re- RSMo turning while officer against peace a Missouri. committed revolver, 2,1985, magnum. Shortly p.m., on March service a .357 On the after 5:30 defendant, investigators driving copper over hood of the car later found a white Ford, palm print. In- pulled speeding over Perry County by Trooper terstate 55 evening, p.m. Around 7:00 a St. Trooper James Froemsdorf. Before County deputy sighted sheriff de- Francois vehicle, approached Froemsdorf his defend- copper began fendant’s and white Ford and hid and identification under ant his wallet pursuit. a The chase ended with defendant the front seat. When turn, missing running up an a embank- license, asked for his driver’s arrived and ment, crashing through fence into a replied did not have it that he capture by quick- Defendant evaded field. him. told Froems- with Defendant exiting fleeing on foot. ly the vehicle and Anthony Mallet. dorf that his name was of defendant’s car On the front floorboard Anthony Mallet is defendant’s brother. deputy found Froemsdorf’s Trooper Froemsdorf handcuffed weapon contained service revolver. and then a search of the Ford found spent unspent four and two shells. bearing several items the name “Jerome only fingerprint found on the revolver be- Mallet,” including defendant’s wallet con- finger- longed to defendant. Defendant’s taining Texas driver’s license and several Ford. prints also on the door of the were pawnshop tickets. fleeing, After defendant swam across Returning patrol these car with night in car in a spent river and the first items, Trooper Froemsdorf called nearby garage, jacket he also stole a where *5 Highway dispatcher. Patrol radio After clothing. replace to wet and shoes own license, running a check on the the driver’s garage day, defend- Leaving the the next dispatcher Trooper informed Froemsdorf signs away stole ant saw of a search and that defendant was in Texas on wanted hay. he under some a barn where burrowed probation four warrants for violation and barn, spending nights in the After two aggravated robbery. one for warrant At nearby attempted to reach a Mc- Froemsdorf, p.m., Trooper 5:40 in his last offi- Donald’s for food. Law enforcement transmission, dispatcher radio told the cers, conducting had an extensive who been custody, defendant was in that he needed search, captured him spotted defendant and assistance, no dispatcher and that the could no- following pursuit. The officers a brief County contact him next at Perry the Sher- dangled from defend- ticed that handcuffs iff’s Office. right cuff was ant’s left wrist. When the wrist, slid approximately right At it p.m., passing placed 6:00 a on defendant's motorist, ultimately seeing halfway curious at his hand. It was apparently an down an unoccupied patrol lights that defendant had suffered car with its red discovered flashing, right a child which stopped investigate injury and found to his hand as nearly the Trooper body. p.m., compress him to it Froemsdorf’s At 6:15 enabled highway slip out of handcuffs. patrol trooper also arrived at size of his wrist and resecured, he was tak- trooper the scene. The for medical After defendant was called patrol personnel subsequently pronounced highway en to a station where who gave waived his Miranda rights and a vid- Trooper Froemsdorf dead. In the de- eo-taped statement. statement Trooper pa- The inside of Froemsdorf’s Froemsdorf, shooting but fendant admitted shambles, evidencing a trol car was a accidental. claimed was struggle. patrol Found car were killing of investigation of the other In the defendant’s driver’s license and the Froemsdorf, per- Trooper autopsy an identifying Trooper items Large vehicle, along body. on his bruises taken from defendant’s with formed Troop- on partially were evident speeding filled out ticket numerous abrasions face, left primarily on the listing er Froemsdorf’s and a handwritten note trooper’s eye left was a Missing from side. Under the defendant’s Texas warrants. ratchet on patrol cut which matched the car was Froemsdorf’s serrated highway patrol. by passenger’s handcuffs used from the he was seat when position on the left side the chin shot. This was the in which the Abrasions was, fact, portion body of the handcuffs. matched the solid found. pathologist The testified that this cut and slugs Troop- Besides the three which hit these abrasions were consistent with a er body, Froemsdorf’s there was alos evi- trooper’s face with the blow or blows plowed dence of a fourth shot which blows, pathologist handcuffs. Such right epaulet trooper’s furrow continued, immediately would cause the uniform shirt the driver’s and shattered eyes person water and blind a for a brief patrol window of the car. Defendant’s

period of time. expert firearms that he believed testified trooper’s the lower left side of the that this shot that shattered the window On opin- one to fired. In his chest was a 7.7 4.0 centimeter abrasion was first be ion, trooper’s hit the large bruising. area of second shot bullet surrounded proof vest and the third and fourth shots impact This was inflicted wound through trooper’s pa- went neck. range magnum from short of a .357 bullet thologist agreed the shot to the vest bulletproof into Froemsdorf’s vest. through occurred before the shots wound, causing Tests of the bullet neck. vest, which was found imbedded Troop- from indicated that it had been fired analysis powder Forensic burn The im- er Froemsdorf’s service revolver. “stippling” victim’s neck indicated magnum pact of a .357 bullet from short weapon the muzzle of the murder testified, range, pathologist eighteen away from inches from twelve knock the breath out of victim time the shots were fired. the neck at the helpless

render him for a short time. presence gunshot Tests to determine Trooper Froemsdorf’s hands es- residue on right On the side of Froems- only presence of such residue tablished neck, apart, dorf’s about an inch and a half palm. his left This is consistent with gunshots. were the entrance wounds two having raised in front of him his left hand slug causing passed the lower wound revolver, *6 discharging of a but the muzzle through the victim’s trachea and carotid having fired him- not with him the revolver artery and of the side of the exited out left self. heavy neck. Such a would cause wound bleeding hamper and above, the victim’s breath- jury the evidence outlined a Given ing. slug causing higher the wound following made the reasonable could have severely dam- fractured two vertebrae and occurred to the events which inferences as aged spinal exiting the cord before also out last radio Trooper Froemsdorf’s after dispatcher of the left side of the neck. The effect of and transmission to the which this wound was the instantaneous death his death. ended with Trooper James Froemsdorf. dispatch- his final contact with the After er, Trooper led defendant back pierced

Both the bullets which the vic- Froemsdorf him into the patrol car and ordered higher point left the a to his tim’s neck neck at got trooper neck, passenger’s seat. The they exiting the front than entered. After began a and to write strip into the driver’s seat one of the bullets struck the chrome Meanwhile, speeding ticket for defendant. the driver’s side at the bottom of front defendant, fearing that the Texas warrants the through and the other went window (or soon be discovered passed car for his arrest would driver’s seat and out of the already knowing they had perhaps even through the left rear door. The combina- found) and that he would be extradit- angle slugs upward tion of the been time, jail to Texas for near certain through Trooper neck with ed Froemsdorf’s right his hand out of the managed to work slugs’ impact points the the car led with from liberating himself handcuffs. While expert defendant’s firearms to conclude handcuffs, to attack defendant decided Trooper leaning down- Froemsdorf was could, Froemsdorf, him if he Trooper kill away ward toward the driver’s door and slugs to send two Using freedom. his ther whether and make a break for defendant, hand, through trooper’s Either of left without neck. handcuffed Trooper find warning, support jury struck Froemsdorf re- these inferences would blow, 565.002(3), On one peatedly ing across face. of deliberation. See § cut into area (“ ratchet of the handcuffs re ‘Deliberation’ means cool RSMo 1986 trooper’s eye, temporarily left below any length of no matter flection for time blinding Despite him. defendant’s fierce Roberts, 709 brief”). how See also State v. injuries, Trooper his onslaught and own (Mo. banc), cert. de 862-63 — struggled he Froemsdorf as best could to -, nied, U.S. Trooper Froems- subdue defendant. While (1986); v. Mc and State temporary hampered by his inabil- dorf was Donald, (Mo.banc 500-501 injuries, and defendant ity to see other 1009, 105 trooper’s mag- draw the .357 managed to (1985), for somewhat 85 L.Ed.2d revolver from the holster on num service support similar facts which were found hip. right Defendant’s first shot was his finding of deliberation. wild, right grazing trooper’s epaulet urges that and cir- Defendant the facts shattering the De- before driver’s window. at least cumstances adduced trial are at as trooper in the second shot hit fendant’s story the death of consistent that with Although this slug chest. left lower they Trooper Froemsdorf accidental vest proof the bullet stopped above, inferences, outlined are with the wearing Froemsdorf under his Trooper trooper, drew his that assaulted shirt, impact its slammed him back uniform deliberately revolver, knowingly and door, him against the driver’s knocked story him. shot and killed Defendant's breathless, helpless him and rendered Froemsdorf, seat- after was that defendant, taking advantage Then time. patrol car, him struck defendant momentary Trooper Froemsdorf’s defense- lying lightly and accused him of twice lessness, point-blank slugs fired at two having his and not driver’s about his name neck, killing range into the officer’s him. license; his hand slipped that order for a return grabbed handcuffs out murder, guilt verdict on first trooper’s prevent physical arms to further reasonably find, beyond a must reasonable himself; that abuse to doubt, knowingly that the defendant defendant, revolver; fearing drew his person caused the death of another after him, at trooper shoot clutched upon the matter. Section 565.- deliberation gun and butted trooper’s hands 020.1, infer RSMo 1986. The evidence and his head sever- trooper in the face with ences killed times; the course al *7 deadly of a through Froemsdorf the use struggle, Trooper fin- while Froemsdorf’s body support a his weapon part on vital of sever- trigger, gun fired ger was on the the knowingly jury finding defendant a that al times. trooper’s with the aware fired the revolver events, how version of Defendant’s practically cer that the bullets were ness ever, the evidence. is not consistent with his LaR tain to cause death. See State v. First, Trooper and abrasions on the bruises (Mo. banc), ette, cert. be face were consistent with Froemsdorf’s denied, handcuffs, not with be ing struck (1983). de The evidence that L.Ed.2d Second, by defendant’s head. butted slip had to out of handcuffs before fendant Trooper although asserts that gives rise to attacking Trooper Froemsdorf his revolver and Froemsdorf drew service re reasonable inference that defendant the finger trigger his on the when dis had killing Trooper. for a time the flected about weap charged, only fingerprint on the the Trooper the shot Trooper Froems- on defendant’s. Also was temporarily Froemsdorf’s chest would have only gunshot had residue dorf’s hands the incapacitated gives him rise to reason above, resi- this As stated palm. the left reflected fur inference that defendant able pattern due trooper consistent with the story fendant’s the shooting Troop- of having up firing held his hand front of a er Froemsdorf was an accidental mo- revolver, Trooper but with inconsistent tiveless event. having weap- Froemsdorf himself fired the Considering evidence, together all the Third, slugs penetrating Trooper on. all therefrom, with reasonable inferences s neck caused immediate verdict, supports casting heavy bleeding and a amount considerable all contrary inferences, aside evidence and of trooper’s blood covered the hands and find, reasonably beyond could shirt. Defendant’s claim that the four doubt, knowing- reasonable that defendant shots fired grappling were while ly shot Froemsdorf to after trooper gun with the for the is thus belied deliberation the matter. by defendant’s that he none admission had Defendant next contends that the trial trooper’s Fourth, of the blood on himself. admitting erred in court evidence that he defendant’s claim that each shot fired Plano, jewelry had robbed a store in Texas during struggle while Froems- the month before Froemsdorf was finger trigger dorf’s was on the is incon- argues murdered. He that the admission testimony sistent medical with of highly this evidence was irrelevant and the trooper’s slug effect of wounds. The prejudicial that, legit- while it no had trooper’s which buried itself in the bullet- bearing guilt imate on his on the murder proof vest, which defendant admits it, fact, charge, tended to raise first the trooper, to hit knocked would have of jurors pre- minds an unwarranted him tempo- breathless and rendered him sumption guilt charge. of on that murder unresponsive.

rarily trooper be incapable continuing thereafter of Evidence commission de struggle for the or revolver a time separate fendant crimes and distinct keeping finger his if trigger. Even charged from crime for which he is Trooper Froemsdorf been to tense had able generally E.g., inadmissible. finger on the trigger after hit in Shaw, (Mo. banc), 671-72 chest, subsequent either shot to the completely him, neck would have disabled But L.Ed.2d such evidence is preventing thus him even from inadvertant- generally prove admissible the crime ly pulling trigger for the second shot to motive, charged when it tends establish Fifth, the neck. version intent, accident, absence mistake or trajectories events is refuted plan embracing common scheme penetrating Trooper bullets Froemsdorf's commission of two or more crimes so relat trooper’s neck. These bullets entered the proof of ed that one tends to establish the apart nearly neck an inch and a half and at other, charged or the identity person angles. evidence, identical This combined on trial. with the commission crime testimony magnum with the a .357 at 672. of other E.g., id. Evidence crimes upward recoils backward and dis- when be under these ex should admitted one of charged, is inconsistent with the claim that ceptions only prejudicial when the effect of trooper’s magnum ran- .357 was fired outweighed by probative the evidence is its during Sixth, domly struggle. balancing This of prejudicial value. effect to fear reason that the Texas warrants *8 probative lies sound value within the probation for his for arrest violations discretion of the court. id. E.g., trial aggravated robbery be would discovered. Thus, Trooper presented he had a The here of de motive to murder evidence jewelry robbery Froemsdorf so that he could avoid fendant’s of the Texas lengthy period of to returned to Texas for a store admissible show presence killing of motive is a for Froemsdorf. incarceration. motive knowledge quite guilt, factor consistent with defendant’s see Defendant’s that he would Stapleton, 292, probably ag be to face State v. S.W.2d 296 returned Texas to 518 (Mo. 1975), charges gravated robbery de- for acts he com banc and inconsistent with

535 presenting evidence that simply by pro tive already in of his violation mitted while of the warrant Trooper Froemsdorf knew very discernible reason gave him a bation Although robbery. for Rath arrest Trooper Froemsdorf. for defendant’s kill to that defendant put er, before needed to show of this evidence the state introduction robbery. for which defend for the of a crime wanted jury evidence he was knew convicted, probative had a never been defendant have ant had then would Only greater than of the evidence Froemsdorf escape value from reason to great probative val prejudicial effect. him, only in this case killing because clear of motive made of evidence ue believe have had reason to defendant would 292, 296 Stapleton, 518 S.W.2d v. State in the connection stop result a traffic this Court noted (Mo. where banc robbery and subse himself to the has of motive been the absence and, given for trial to Texas quent return as to the in determinations pivotal factor evidence, and a probable conviction The evidence sufficiency of the evidence. Willis, 632 v. State lengthy sentence. Cf. pro particularly case was motive in this (evidence 63, (Mo.App.1982) S.W.2d defend it tended to refute bative because gain financially under an defendant would shots were fired acci story that the ant’s policy the victim admissible insurance Crabtree, v. dentally. See State if knew of existence only (Mo.App.1981). Evidence S.W.2d force, and that he policy, that it was admit frequently has been of other crimes policy by the death gain under could motive, despite any incidental to show ted victim). by introducing evidence Only See, e.g., v. State prejudice to defendant. jewelry store the manner in which Williams, (Mo. banc de state show that could the was robbed Graham, 1983); State v. for the rob he was wanted fendant knew Trimble, (Mo. 1982); State banc testi presented bery. The state therefore 1982), 732-33 banc the Plano a man had entered mony that spoken to sales and had both jewelry store Shaw, (1983); attempting length at some without clerks court did not S.W.2d at 672. The trial any way. He was his face to conceal by admitting its discretion abuse monogrammed gold necklace wearing a robbery. of the Texas recognized “M”. The clerks with the letter that, argues even if Defendant further man who had been being the same him as robbery was some evidence of the Texas and had unsuccessful earlier in two weeks admissible, permit- the trial court erred an purchase jewelry with attempted to ly ting present the details of the state to had check. The man funds insufficient robbery. Defendant asserts and had ticket at that time out a sales filled theory was established state’s as motive looking at name. After given defendant’s Texas war- by testimony that word nickle- the man drew a pendants, diamond aggra- defendant for rants for the arrest of place revolver, clerks to ordered the plated robbery probation violations vated holding, bag had them in a he was jewelry been transmitted trial, floor, one of and left. At lie on the in that he had and that he had radioed recognized de that she clerks testified way custody and was on the had committed the man who fendant as Ad- Perry County Office. Sheriff’s robbery. details of the rob- mission of further concludes, nothing added bery, defendant give robbery details of the These greatly theory to the state’s of motive but inference that de rise to the reasonable prejudice increased defendant. the rob he was wanted fendant knew a motive that he had bery and thus Contrary argument, intro to defendant’s lati custody. into Wide being taken resist of the Tex duction of the detailed evidence develop generally allowed tude robbery necessary in for the order Holt, of motive. of evidence ment The state would state to establish motive. *9 1980). (Mo. Be- banc mo 592 S.W.2d showing of not have made a sufficient of great cause this wide latitude and the Trooper Froemsdorf), the murder of a find- motive, probative of ing value evidence of the elements of homicide offense Court concludes that the trial court did not is inconsistent with such a defense. MAI- admitting 304.11, its abuse discretion detailed part CR3d D.1 Thus an instruction robbery. evidence of the Texas on accident would have been redundant. No error by was committed the trial court respect Also with to evidence of refusing requested to submit the acci- robbery, urges the Texas that dent instruction. pawn in Trooper tickets found Froems- erroneously patrol assigns dorf s car were admitted Defendant also error to jury into and read the trial court’s refusal to submit his re because quested pawn contained on the instruction on the definition information tick ets, use of particularly circumstantial evidence. The re notations on most of the quested pawned instruction was identical to MAI- jewelry, tickets that the item acknowledges CR2d 3.42. Defendant hearsay constituted inadmissible connect a circumstantial evidence instruction need robbery. defendant to the The rule given not be in a case inadmissible, where the evidence is hearsay however, has partially partially direct and circumstantial. application extrajudicial no where state See, e.g., Griffin, State v. proof ment is not offered as of the matters banc Hale, asserted therein. L.Ed.2d (Mo.1963). pawn tick statement, videotaped defendant’s which ets here were admitted the trial court evidence, defendant, was introduced into proof not as of the matter asserted therein describing car, happened patrol what (that pawned by certain items were defend said: ant), proof presence but as of defendant’s gun] When we was wrestlin’ at the attempts [for murder scene. Defendant gun up went off and ... shot some- bring pawn tickets within bounds again I shot him I where. when was hearsay by pointing rule to a state taking again. it from him. I shot Then ment made hearing jury out of the just again. shot prosecutors one of suggests pawn that the tickets were offered show This is direct evidence that defendant shot defendant’s connection Texas with the rob Trooper Froemsdorf. This direct evidence bery. attempt prin This fails because requirement obviated the that a circum- cipal prosecutor previously stated that given. stantial evidence instruction be offering pawn solely tickets argues Defendant the trial presence show defendant’s crime at the argue in permitting court erred the state to scene, because the trial admitted the court supposed defendant’s bad character clos showing tickets for purpose the sole ing argument. No foundation was laid for scene, presence defendant’s at the be appellate point de review this because cause the tickets were never used ground objections fendant made no on this showing state for purpose other than during closing argument. The the state’s presence at the scene. Court, nevertheless, the clos has examined ing argument plain for error and has found argues

Defendant next that the tri injustice miscarriage jus al court or failing jury erred instruct the no manifest (excusable point no did the defense of accident homi tice. Rule 30.20. At See cide). exists, however, indirectly urge sepa prosecutor directly No need because, rate of his instruction on accident under convict defendant because proclivities. the current his criminal Missouri statute on the defense bad character or accident, 563.070, (effec challenged comments were either made RSMo 1986 1, 1984, purpose attacking permissible tive October before for the five months accident, Although Oc- MAI-CR was withdrawn effective 3d was not effective at the form case, 1, 1984, before the offense time of the offense on trial in it does tober five months this 2.28, why make clear MAI-CR 2d here. an instruction *10 prejudiced by the credibility permissible or or otherwise defendant’s were unaware relating propositions as the to his char- arguments upon such admission of evidence jury’s duty by of crime and the record or prevalence prior acter and criminal See, Newlon, e.g., the law. v. uphold non-statutory aggravat- State of submission (Mo. banc), de circumstances, 627 S.W.2d premised ing which were nied, 459 By a prior convictions. at least upon his trial, the state had voluntar- month before copies of all ily provided defendant with Defendant next contends planned which it certified convictions erroneously permitted to in the state was penalty phase exhibits and introduce as of character troduce evidence in- notice of the witnesses it with written record,-in proof non- prior and criminal of during penalty phase. tended to call circumstances, in statutory aggravating penalty phase of the trial argument because next is that Defendant’s comply provision failed to with notice permitting court erred in the testimo- trial 565.005.1, of RSMo 1986. Section 565.- ny Dr. Zaricor concern- § of state’s witness 005.1(1) provides: in struck ing the order shots concerning the ef- Trooper Froemsdorf and At a reasonable time the com- before person wearing bulletproof upon fect stage

mencement of the first trial being by shot in the chest a .357 vest of degree of murder the first at which quali- not waived, magnum because Dr. Zaricor was is not the state defendant, expert in these areas. fied as an request and and with- RSMo (Emphasis trial shall stances as al.... out order of the sel of the authorized, of all his instructions sider Section In all cases of murder prove ^[*****] 1986, provides aggravating for which the death 565.032, at the second opposing consider, added). provided judge which the court, or party or he shall include Section mitigating pertinent part: in a shall serve coun- stage subsection with: party intends for it to con- jury-waived penalty is of the tri- 565.032.1, (1) circum- A list ^[*] first 1 of The peated his when Dr. Zaricor proof test of The found no has ence which ant’s magnum slug testimony regarding 1984). Garrett, from education or knowledge Court, however, has reviewed defend objection challenge to this called vest, expert qualification is whether error, With will aid the trier opinion qualification on a made when Dr. Zaricor the defense was plain or otherwise. respect person first five made no testimony gave of an impact days wearing to Dr. Zaricor’s his fact. State expert later after of a .357 untimely. (Mo.App. objection a bullet opinion. experi is a has re he (3) mitigating aggravating cir- Any resting primarily in the sound dis matter Jones, cumstances otherwise authorized law trial court. cretion of the re- supported by the evidence and (Mo.1980). Dr. Zari- including any aspect quested by party topic testify on this qualifications to cor’s character, record of the defendant’s patholo He was a quite sufficient. were convictions, and any prior criminal fifty forty or au gist who had conducted admis- pleas findings guilty gunshot and ob involving wounds topsies pleas guilt sions of crime or others, including five served two hundred nolo contendere of the defendant mag a .357 weapon used was where the people talked to who num. He had here fails because Defendant’s contention bulletproof wearing vests. been shot while required request never made the like also seen abrasions Dr. Zaricor had aggravat- disclosure under 565.005of the inflicted the state intended circumstances which More bulletproof vest. defendant, into his the shot de- prove. It is noted that of this over, to the effect evaluation as not spite request, this lack of taken injury primarily racially a medical one and discriminatory sup- manner. *11 certainly expertise. thus within his field of port challenge of this defendant offered The trial court did not abuse its discretion following statistics. those Of individu- in admitting testimony Dr. Zaricor’s on this (excluding appellant) als who have been topic. 1977, to death in sentenced Missouri since are non-white. 39% Of these non-white respect With to Dr. testi Zaricor’s inmates, death row white had victims. 53% error, mony regarding shots, the order of if inmates, Of the white death row 74% any, testimony in admission of the composi- white racial victims. Missouri’s non-prejudicial. opinion Dr. Zaricor’s as to tion is white and non-white. 88.4% 11.6% exactly the order of same as shots asserts Defendant that these statistics indi- expert. that of defendant’s firearms likely cate that non-whites are more to be of assignment Defendant’s next er sentenced to death than and whites videotaped ror is that his statement was likely killers whites of are more to be sen- improperly admitted into because tenced death than to killers non-whites. Any voluntarily. was not made chal As a black defendant who killed a white lenge videotaped to the introduction of the victim, defendant further claims that these however, statement, has been waived. Be statistics demonstrate that he was discrimi- trial, fore suppress defendant moved to against nated because of his race and be- only police. an oral statement made to Therefore, cause of the race of his victim. Defense counsel advised the trial court that conclude, appears to Missouri’s chose, part “we our strategy, trial not penalty general death death sen- suppress videotaped to file a motion to equal particular protec- tence in violate the statement”. At the close state’s of the tion of the fourteenth amendment to clause evidence, request defendant filed a motion the United States Constitution. ing permission to post-arrest introduce his equal In order an to establish statements as defense The mo evidence. violation, protection must show videotaped tion was When denied. E.g., McCleskey an intent discriminate. by statement was introduced the state to — -, 1756, Kemp, 107 S.Ct. impeach defendant’s testimony, defense (1987). 95 L.Ed.2d 262 Defendant’s objection. counsel stated that he had no prove evidence to intentional discrimination strategy Given defendant’s trial not in this case consists of statistics.2 Statis suppress move to the videotaped state ment, indicating disparate impact during tics seldom his desire trial to have the protection tape admitted, equal and his establish an express consent to suffice to state, E.g., Wainwright, its claim. Adams v. admission he cannot now Cir.1983), tape (11th claim that the admission of the was F.2d cert. de nied, Crawley, erroneous. State v. See (Mo.1973). McCleskey, On its initia L.Ed.2d 203 See also own

tive, the has examined at 1767. Court the admission error, videotaped plain statement for McCleskey, States Su- United 30.20, found Rule none. That no mani equal preme recently pro- an Court faced injustice fest could have from the resulted challenge penal- death Georgia’s tection videotaped introduction of statement is statutes, ty challenge similar to the here. evidenced defendant’s desire to have his prove attempted inten- The defendant post-arrest statements admitted in his own through the use of tional discrimination behalf. sophisticated statistical studies that ex- two challenges next 2000 murder cases that oc- Defendant the constitu- amined over Georgia tionality Despite penalty of Missouri’s death stat- curred in the 1970’s. statistics, ground they utes on the which indicated that applied are the intricate 2. allegation Defendant’s further intent is answered in this Court’s review comparison pursuant death to § discriminate is shown of this defendant’s 035, sentence 565.- Tate, (Mo.App. case with RSMo defend- similar cases. These assertions will be con- killers of white victims black likely independent more to receive death sen- re- ants were sidered within the Court’s tences, the Court declined to infer a dis- death sentence. view of defendant’s prosecu- part intent on the crimination 565.035.3, RSMo mandates Section seeking penalty, tors in independent re- conduct an that the Court giving part juries penalty, the death sen- imposition of all death view part Georgia legislature or on the requires the Court to tences. That section enacting maintaining the death determine: *12 According- at statutes. 107 S.Ct. 1768-70. (1) the sentence of death was Whether ly, rejected equal the the defendant’s Court imposed passion, the influence of under protection claim. Id. at 1769-70. The ba- factor; prejudice, arbitrary or other prose- decision was that sis of the Court’s (2) supports the Whether cutors, legislatures and are juries, vested jury’s judge’s finding statutory of a making in the their deci- with discretion aggravating circumstance as enumerated sions. at 1768-70. “Because discretion Id. in and subsection of section 565.032 justice process,” is essential to the criminal any other circumstance found. “exceptionally the Court demands clear (3) the sentence of death is Whether proof” infer that the discre- before will pen- disproportionate excessive or at tion has been abused. Id. cases, considering alty imposed in similar proffered provide statistics did not the re- crime, strength of the evi- both quired “exceptionally proof”. clear Id. at dence and the defendant. 1769-70. that his death sen- Defendant submits

Compared to the statistics intro imposed under the influence of tence was in by McCles/cey, duced the defendant prejudice, arbitrary factor passion, statistics offered here are of his race. Therefore, superficial. given that

McCleskey statistics were insufficient attack the motivations Defendant’s claim, equal protection establish an the sta supported by no jurors in this case is tistics offered here also are insufficient to is, however, There direct direct evidence. establish such a claim. jurors not motivated evidence that the were dire, During voir the defense by racism. specific In addition to defendant’s potential jurors con- questioned all counsel challenge constitutional to Missouri’s death relationship experience cerning their ground penalty statutes on the of discrimi those relation- blacks and whether with challenges natory application, he also impair ships experiences would their constitutionality inherent of Missouri’s give defendant a fair trial. Out ability to statutes, penalty death under both the persons, all panel approximately United and Missouri Constitutions. States testified, express either state- three but rejected repeatedly This Court has constitu the defense counsel’s ment or silence to challenges penal tional to Missouri’s death problem they have no questions, that See, ty again statutes and does so now. this case on the evidence with- judging Driscoll, e.g., 711 S.W.2d State — The three who indi- regard to race. out (Mo. U.S. -, banc), denied, cert. might impede racial views cated that their (1986); L.Ed.2d fairly ex- the case were judging them Newlon, 606, 611-13 no hint in the There is cused for cause. banc), 884, 103 S.Ct. venirepersons testified record 74 L.Ed.2d 149 was a factor falsely or that race im- Finally, jury’s defendant attacks the jury’s decision. case. position of the death in this evidence, defendant Lacking any other the sentence was Defendant asserts that assume racial bias urges this Court imposed prejudice under the influence because, his victim he is black and dis- while and that the sentence is excessive and white, county in he was tried which proportionate penalty imposed in was residents, nire, suspect had no black which resulted there is no reason to that this jury panel Defendant without blacks. also jury acted more out of misinformation prejudice part racial contends that prejudice jury than would have a jury apparent comparison from county. from a drawn multiracial Tate, of this case with Additionally, it is noted that defendant’s (Mo.App.1987), in which a white de- did, county trial occurred in which it highway patrol trooper who shot a fendant Schuyler County, as a result of defendant’s imprisonment, received a sentence of life own action. Because capital and with other cases. Perry County, was murdered in he was The Court declines to infer ra originally held before the court in that prejudice part jury on the of a which cial change county. Defendant moved for a killer of a sentences black white victim to venue, granted, and this the case simply jury because that was drawn Schuyler County. Perry transferred to As has resi county from a no black along Mississippi County is situated prejudice To hold that racial dents. Schuyler River Southeast Missouri and may be from part of a inferred *13 border, County along is located the Iowa of members of the defendant’s absence changed can be assumed that venue was be, jury practical on in race the effect, Schuyler County get in case to hold that the defendant has a order to the right jury. his on the to members of race possible county as far to a moved north as defendant, however, right A has no to a reports of kill- where Froesmdorf’s jury any particular composition. of racial ing may have received less attention. Louisiana, 522, 538, Taylor v. 419 U.S. 95 slightest suggestion There is not the 692, 701, (1975); State 42 L.Ed.2d 690 S.Ct. in race was a consideration the decision Blair, (Mo. v. 753 banc Schuyler County. change the venue to Ac- denied, 1982), 1188, 103 cert. 459 U.S. S.Ct. statistics, Schuyler cording to 1980 census (1983). 74 L.Ed.2d 1030 persons, 3 County contains 4964 white possible position It is that defendant’s Census, persons. Bureau of black prejudice broader than the assertion that Housing Population of Census of just should be inferred from the lack jury. position on blacks Defendant’s preju Just as no inference of racial may county in be of a black trial part jury on the arises because dice juries with no on black residents to serve county composition of the of the racial inherently jury results in a motivated drawn, jury neither from which was prejudice jury likely because the members inference arise from a com does such an personal experience have had no with Tate, v. State case with parison of this only misconcep- blacks and thus can act Tate this (Mo.App.1987).3 S.W.2d De- stereotypes tions about and of blacks. in that both superficially case are similar support points fendant to no evidence to highway pa who killed involve defendants fact, is, proposition. position such a in This level, the troopers. superficial this trol On potential refuted statements of defendant primary differences are that jurors during voir dire. When asked about sentence here is and received a death black with relationships experiences their in Tate was white while blacks, many regu- they indicated that had imprisonment. life received a sentence of previously lar contact with blacks or had that, the of reasons because Defendant lived communities which did have black identical, disparate sen fenses were A residents. number of had known others explained only by reference tences can be past. personal blacks these Given the race of the defendants. by many on the ve- contacts with blacks victim). These opinion may the race of the defendant This refer facts about to some cases, gleaned records of comparison been from the capital facts have Tate and other in its one, keeps pursuant capital appar- which this Court with not cases of those case this which are 565.035.6, (such opinions RSMo 1986. ent from the in those cases him in of justifiably lays a bed his own explanation disparate for the sen- making. tences, however, far from due to part jury, prejudice racial of Comparison of this case other first with in the nature of found in the differences degree jury de murder cases which Up to the time respective defendants. sentences of death or life cided between trial, he had convicted of Tate’s never been give any does not rise to imprisonment also only criminal offense. sen inference that this defendant’s death prior jury imposed criminal activi- tence under the influence of

before occasions, prejudice. On four exclud testimony that he racial ty by Tate was case, has faced with this been unspecified felony warrant at on an wanted impose the death the choice of whether illegal and that the time of offense life penalty or a sentence black weapons present his vehicle when were has found it to be defendant who been By highway patrol trooper. he killed the guilty the first murder of a white contrast, this case six enforcement or corrections officer. law felony prior to the time he shot convictions Baker, See State 636 S.W.2d 902 and a his- substantial denied, 459 U.S. 1183, 103 cert. banc activity, including tory of other criminal (1983); State v. 74 L.Ed.2d 1027 arrest, resisting writing incidents of Shaw, (Mo. banc), $20,000 support checks to worth bad habit, drug brandishing of a sawed-off Thomas, (1982); area, shotgun in and the a residential com- Lomax, (Mo.1981); S.W.2d 115 robbery shortly mission of an armed before pen (Mo.App.1986). The death Froemsdorf. An- murder in Baker and Shaw. Life alty imposed *14 major other distinction between Tate imposed in Thomas sentences were Tate, the defendant here is that from at Lomax. Comparing these cases with each 13, age heavily least the was influenced racial other and with this case indicates no in by and immersed a militant and fanatical here indi prejudice in the decision but does religious justified sect which violence as an capable of juries quite cate that are consid appropriate defense when a free- member’s range punishment and of ering the full dom was threatened and which described imposing just sentences in cases such as prisoners members who were arrested this one. There are also two cases involv Tate, argued of war. In defense of it was ing degree police murder of the first black that he was so influenced this sect that or life in which the choice of death officers completely responsible was not for his jury. imprisonment was submitted testimony psychiatric actions. Extensive McDonald, 497 See State v. supported denied, theory. this It was reasonable cert. (Mo. 471 U.S. banc (1985); jury 1875, for the in Tate’s trial to decline 85 L.Ed.2d 168 105 S.Ct. Sargent, impose (Mo.App. that mis- 702 877 penalty death S.W.2d The defendant McDonald 1985). in re guided comparison, defendant. In defend- in penalty. The defendant the death ceived typical ant in this case in a more was raised Sargent received a life sentence. The les grew up He in a home free environment. juries is that son from these two decisions Despite sup- his neglect. from abuse and the victim is a are no more severe when portive defendant, en- family, has now they officer than white law enforcement gaged forays in since numerous criminal is a black law enforce are when the victim age nothing suggest of 20. There is ment officer. forays result of that these were not the choice. conscious and individual respect conclusion with The Court’s Finding deliberately guilty independent prong of our review the first Froemsdorf, killing jury this is that defendant’s pursuant to 565.035.3 § justified imposing imposed case the death was was not under sentence death Further, penalty. prejudice. Far from of ra- of racial the result the influence nothing suggest in the record to prejudice, there is cial defendant’s death sentence that the tencing sentence resulted otherwise from may scheme occasionally produce passion, prejudice, any influence of or an aberrational outcome. Pulley v. Har- ris, arbitrary other 37, 54, factor. 871, 881, 104 S.Ct. Gilmore, (1984); State v. Turning prong to the second 1984). S.W.2d banc The issue 565.035.3,the Court finds substantial evi § determining when the proportionality of a finding dence support jury’s sentence is not whether similar statutory existence of the three submitted case can jury be found in which the im- aggravating circumstances. The evidence posed sentence, a life but rather whether question no leaves Froems- dispro- death sentence is excessive or peace dorf was a officer killed while en portionate light of “similar cases” as a gaged performance of his official 565.035.3(3). See event, whole. jury justified finding duties. The distinctions, there are substantial discussed slipped from the evidence that defendant above, between this case and Tate out of handcuffs and attacked completely argument undercut defendant’s immediately prior shooting dispro- sentence is excessive him and thus that murder was commit portionate compared when with the sen- by person escaped ted who had from the tence in Tate. custody peace lawful of a officer. The defendant repeatedly evidence that beat Court has also reviewed the Trooper Froemsdorf across the face with other cases which the defendant was hand, his still handcuffed left that defend guilty found of the first murder of temporarily incapacitated trooper ant a law enforcement or corrections officer by firing trooper’s a shot into the bullet given and in which the the choice vest, proof and that defendant took advan imposing either the death or a tage of this temporary incapacity by pump Driscoll, life sentence. See State v. one, two, magnum slugs not but .357 (Mo. banc) (death sentence), S.W.2d 512 through neck, helpless trooper’s provid — denied, U.S. -, cert. 107 S.Ct. justification ed jury’s finding for the Roberts, (1986); State v. 93 L.Ed.2d 301 the murder outrageously wantonly (Mo.banc) (death sentence), vile, horrible, or inhuman in that it involved — U.S. -, Newlon, depravity of mind. See State v. McDonald, (1986); 93 L.Ed.2d 378 (Mo. banc), cert. de *15 sentence), (Mo. 1983)(death 661 497 S.W.2d banc nied, 884, 185, 459 U.S. 103 S.Ct. 74 denied, 1009, rt. 471 U.S. 105 ce L.Ed.2d 149 (1985); v. 1875, State S.Ct. 85 L.Ed.2d 168 prong In relation to the final of the Davis, (Mo. 1983)(life 653 S.W.2d 167 banc independent Court’s review of defendant’s Baker, 636 sentence); State v. 902 S.W.2d sentence, argues death defendant that the (Mo. 1982) (death sentence), cert. de banc imposition of the death sentence in this nied, 1183, 834, 74 459 U.S. 103 S.Ct. disproportionate case is excessive and Shaw, (1983); State v. L.Ed.2d 1027 636 cases, imposed in similar con- (Mo. banc) (death sentence), S.W.2d 667 crime, sidering strength of the evi- 928, 239, cert. denied 459 U.S. 103 S.Ct. 74 dence, and the defendant. Thomas, 625 (1982); State v. State (Mo.1981)(life sentence); State heavily Defendant relies S.W.2d 115 Tate, Lomax, v. to v. (Mo.App.1986) (Mo.App.1987), 731 S.W.2d 846 712 S.W.2d 698 Carr, sentence); v. (life establish his 708 State claim that his death sentence S.W.2d (life sentence); State v. disproportionate. and (Mo.App.1986) excessive As stat 313 above, Sargent, Tate involved a defendant who (Mo.App.1985) ed 702 S.W.2d 877 Stephens, (life sentence); State v. received a life sentence 672 after convict sentence). (life degree (Mo.App.1984) ed of the first highway murder of a S.W.2d 714 this case and Tate Defendant’s patrol trooper. beating if Froems- Even factually equivalent, were handcuffs and his subse this fact alone dorf with own slugs through Any capital quent would not aid defendant. decision to fire two sen-

543 trooper statement, trooper’s neck while the officer. If the believed his temporarily incapacitated than rather conviction of first murder would be opportunity very to flee this take the make mur- doubtful. as der at least heinous those murders of indicates, As principal opinion our law enforcement or corrections officers general announced in decisions have terms which in resulted death sentences. De- that, a rule cir whenever both direct and history fendant’s of criminal ac- extensive presented, MAI- cumstantial evidence are tivity distinguishes him from defend- given. princi CR2d 3.421 need not be The Sargent, life cases of ants in the sentence pal opinion apparently apply this Stephens Davis. The life sentence expansively, rule so instruction is cases of Lomax and Carr are distinguish- if required not there is direct evidence able from this case in that both Lomax and goes element of the offense. This participation Carr killed with others and beyond Griffin, In State v. the case law. was inconclusive as to who (Mo. 1983), cert. de 662 854 S.W.2d banc The dealt the blow. defendant nied, 224, 873, 105 83 S.Ct. case of Thomas differs from life sentence (1984), L.Ed.2d principal 153 cited I.Q. here in that Thomas’ opinion, eyewitness testimony there was significantly lower than that of defendant v. shooting. State That case relied on here there was also more substantial Baldwin, 571 S.W.2d 236 banc part evidence mental illness on the subject which knife part than Thomas there was on the the charges was found concealed examining here. After these person. In other an cases involving cases the murder of enforce- law nouncing principal rule on in relied

ment compar- and corrections officers and opinion, stronger there was also direct evi case, them this the Court concludes support dence to the convictions than was the sentence in this case neither Stevens, present in this case. E.g., State v. disproportionate. nor excessive denied, 10, cert. (Mo.), 25 404 judgment is affirmed. 531, 994, U.S. 30 546 L.Ed.2d Aubuchon, (1971); State 394 S.W.2d HIGGINS, C.J., J., RENDLEN, (Mo.1965); Spica, State v. 389 SMITH, Special Judge, concur. (Mo.1965), S.W.2d 52-53 L.Ed.2d DONNELLY, JJ., BLACKMAR Tallie, (1966); separate dissent in opinions. Loston, (Mo.1964); WELLIVER, J., dissents and concurs (Mo.1950). dissenting DONNELLY, opinion of principal opinion lengthy sets out a J. supporting chain of the find- circumstances ROBERTSON, J., sitting. not ings premeditation. It of deliberation and *16 also in demonstrates detail circumstances BLACKMAR, Judge, dissenting. showing explanation the defendant’s that jury The was unreasonable and incredible. I. duty should been told that had the have (then I that MAI-CR2d 3.42 in believe comparison of com- making the indicated of effect) given request- should have been as peting theories. ed. The evidence of the essential elements in- premeditation It said that an and deliberation was has sometimes been wholly along might of 3.42 con- circumstantial. The defendant’s ad- struction the lines opinion mission set fuse when is direct principal jury as out there evidence. simply present showed he at There be no confusion in this case that was would obliged analyze strug- jury scene and that he fired shots a because the to after gle purely he gun which wrestled the from the evidence which was circumstantial 1. Now MAI-CR3d 310.02.

544 degree guilt position first to before it could find seems take a of indifference. helpful duty The instruction would be Our under 565.035 is not limited to murder. § jury Supreme and it should have had the the minimum that the Court of to might We should benefit it. United States allow. essentially to strive make sure that similar judge may I that the trial can understand punished. Although similarly offenses are Use, thought, Notes on that have from the first murder of law enforce instruction,2 give he this obliged was not to aggravating is statutory ment officer cir life, to take but when the state seeks supporting penalty, cumstance the death be afforded all available defendant should juries have reached divided conclusions safeguards. procedural cases which this circumstance present.3 II. question impacts the is- The racial also assigned I am of For the reasons above judge It ini- sues. is unfortunate that the re- opinion that the case should be county tially assigned trial, sent case to remanded for new and so versed and which there were no black residents avail- proportional- I reach the issue of would not jury every I confi- able for service. have .3, ity review under 565.035.2 and RSMo § dence that did this for the sole reason point considers the I 1986. Since the Court get long way to the case a that he wanted mitigation of the sentence.

vote for a away County, Perry from as the defendant pat- comparison to the Tate case is requested, and without racial motiva- opinion principal ent. The refers to this problem When the tion whatsoever. distin- defendant’s other convictions as a to the successor called the attention of against guishing feature. Balanced those however, I judge, believe that the case having seriously shot and are Tate’s to should have been transferred another trooper with intent to wounded a second appear- mindful of county. We should be incipient arm- kill and involvement in an sug- life is stake. I do not ances when at against United ed insurrection States Schuyler County gest jurors of did that the State of Missouri. and the it, I duty they saw nor do not do their an conflict between There is inherent argue a defendant is entitled to have sentencing proportionality review. panel. But his own race on the persons of Georgia, v. Furman appearances remain. (1972), the Court 33 L.Ed.2d 346 S.Ct. duty I exercise our to “consider disparity in majority was disturbed about pursuant punishment” 565.035.2 capital punishment under application imprison- to life by reducing the sentence existing Gregg Georgia, statutes. probation parole. In addi- ment without 2909, 49 U.S. S.Ct. earlier, give I the factors discussed tion to stat (1976), the modified considered homicide, nature attention introduce ele considered would utes there which, although it could be found be uniformity into objectivity and ments of legal standard de- deliberate the rather capital punishment and administration term, quite fining nevertheless again allowed the states reinsti- so once impulsive. — Now, McCleskey Kemp, it. tute as to U.S. -, judgment should be reversed 95 L.Ed.2d S.Ct. the case remand- guilt punishment (1987), appears recog majority the Court trial. disparities ed for new are inevitable nize that McDonald, banc may given 661 S.W.2d 497 be even if instruction 2. This guilt, though evidence of there some direct *17 Baker, given (1985) unless the evidence v. not be at all and State need 636 168 L.Ed.2d wholly circumstantial. (Mo. banc), 459 S.W.2d 902 (1982) 1183, 834, 1027 74 L.Ed.2d Thomas, Compare State v. 3. McDonald, cases). (death police In sentence Lomax, (Mo. v. (Mo.1981), State S.W.2d 698 defendant, recognized as such officer was (Mo. Sargent, v. State App.1986), 702 S.W.2d 877 duty. though he was not on even Stephens, v. App.1985), S.W.2d 714 cases) v. with State (life (Mo.App.1984) sentence DONNELLY, Judge, dissenting. imposed

Whenever case, “the sentence shall be re- supreme

viewed record court

of Missouri” and this Court must deter- imposed

mine whether such sentence “was passion, prejudice,

under the influence of * * arbitrary other factor 565.035, 1986. RSMo 420, Godfrey Georgia, (1980), L.Ed.2d if

the Court held “that a State wishes to capital punishment

authorize it has a con- * * * responsibility apply stitutional its

law in a manner that avoids the arbitrary capricious infliction penal- of the death

ty.” And the Court held that a death sen- permitted

tence cannot be when stand

the circumstances under which it was im-

posed “create a substantial risk that

punishment will be arbitrary inflicted in an capricious U.S., manner.” 446 at S.Ct., at 1764. case,

Given circumstances in this I judgment

would set the aside and resen- appellant

tence life imprisonment with- eligibility

out probation, parole, or re- except by governor.

lease act of the

I respectfully dissent.

Leroy HAHN, John

Petitioner-Respondent, HAHN,

Delores Jean

Respondent-Appellant.

No. 50623.

Missouri Appeals, Court of District,

Eastern

Southern Division.

June 1987. Rehearing

Motion for and/or Transfer July

Denied