*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).
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
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
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,
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
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