*1 dоes feel alleged Court not inclined make was not participant guilty an punished addition. offense and cannot be all. should with case be remanded di- when Perhaps view from time rections to resentence defendant to life penalty death was much often im- more imprisonment probation parole without posed it will perspec- than is now furnish years. for 50 History tive. tells was us Loeb killed 1930’s, in a prison incident while
Leopold years. served he many After on he parole,
released led a useful life. on the I comparisons
Based above do not
believe requires that the law the life of this
young stating man. In so I do not minimize
the enormity guilt of his or the horrible offense, youth details of but do urge as Missouri, Respondent, STATE a proper factor for consideration. I do have reservations as whether McDONALD, Appellant. Samuel Lee compliance
there is
with the standards of
No. 64057.
Godfrey Georgia,
U.S.
S.Ct.
the “outrageously aggravated vile” circum- Dec. Rehearing Denied stance was submitted I am jury.
persuaded that the stab wounds were in- with torture in mind.
flicted The defend-
ant rather set out to kill but found his
weapon was inadequate, a vi- except when
tal spot was Godfrey located. But has al-
ways confusing seemed to me and the Su-
preme appears Court to have retreated
from it in recent I years. rather rest my comparisons
conclusionon the age and on
the offender. argued incongrui- has
ty of allowing death sentence stand
while accomplice goes his through free
acquittal. If this defendant fact is in exe-
cuted, generations future irony will sense situation, but inconsistent verdicts are
to be expected so as we long have individual
determination of with guilt by jury trial severance, free which are established
parts of our criminal law procedure.
The incongruity bemay corrected
Governor, if so minded. The statute does
not authorize the mitiga- courts to afford
tion on account of these circumstances.
There comparison is no basis for punish-
ment when the jury determines that one *3 Robertson, Defender, Jordan, Asst.
Henry Public ant drew a and accosted fir- pistol Louis, appellant. St. for ing process. one shots in the or more One these shots wounded officer in his Ashcroft, Gen., Atty. John M. Mor- John chest he fell to and left arm and his knees. ris, Gen., Asst. Atty. City, Jefferson his pistol As the defendant stood with over respondent. Jordan, the kneeling Jordan handed him his wallet his police badge. BILLINGS, Judge. which contained After the wallet receiving began Defendant Lee Samuel McDonald was to turn then turned away and back and shot jury-tried and convicted of mur- the officer The second en- again. bullet Jordan, der of Robert Louis off-duty St. chest, tered Jordan’s pene- the left side of officer, County police during the course of a lodged trated his heart and his stomach robbery. jury further found that flee, attempted wall. As defendant *4 defendant committed the murder “for the drew mortally-wounded officer his service purpose receiving money or revolver several shots at defend- and fired thing of monetary by taking value [Jor- ant, him three times. Jordan striking wallet” fixed his punishment and dan’s] and into the store asked that stumbled back death. The death sentence im- duly was police the called. He died be before posed. We affirm. shortly after an ambulance arrived. Defendant contends the substantial into Rochelle Jordan ran back the store was insufficient to support evidence his con the first after her father was shot time and issue, viction. In this ruling we consider eyewitness she at trial as an to her testified the facts in evidence and all favorable in The robbery father’s execution. and shoot- reasonably ferences to be drawn therefrom was trial ing also described at two addi- in most favorable light jury’s the to the eyewitnesses, tional identification one view- disregard verdict and all contrary evidenсe liquor the and ing events from inside store Franco, and inferences. v. State 544 street. the other from across the 1977), denied, (Mo. S.W.2d 533 banc cert. 957, 2682, 431 275 U.S. 97 S.Ct. 53 L.Ed.2d crawled back the car and Defendant him to hospital. Blue to drive the instructed 16, 1981, changed his mind evening May On the Robert En route defendant and Jordan, accompanied by his take him to a friend’s house. 11-year-old told Blue to Rochelle, daughter, went to the Forest Blue the house and found no one drove to Package Liquor purchase Store snacks the he was home. removed shirt Defendant for for the was family his weekend. He wearing and stuffed it down sewer drain. wearing civilian clothes and in accordance attempting to locate unsuccessfully After his departmental policy carrying aid, with was defendant had Blue friends for medical revolver, police concealed. Father and Hospital. The drive him to the Veteran’s at the 11:00 daughter arrived store about police later searched parked car was p.m., making purchases they after Jordan’s wallet with with Blue’s consent. started out of the store. in the was found rear seat. police badge the was in the clothing Defendant’s found Jacqueline Defendant and Blue had been trunk, Blue put he had told it. where for driving around a car several hours jacket pocket black leather con- of his p.m., 11:00 parked at around defendant casings. fired shell gun tained with four the the away vehicle a short distance from A shirt was retrieved from blood-soaked Package Liquor Forest Store. Defendant sewer said it had been discard- where Blue companion right told his he would be back ed. standing was on shortly thereafter seen next store. liquor street corner to the find, jury could foregoing, From the doubt, that defendant daughter emerged As Jordan and his beyond a reasonable groceries, from store their robbing him. with defend- engaged killed while Jordan
501 argues plea give Defendant further that his convic- Defendant did enter such tion of murder stand because statutory cannot notice. The court cannot trial the evidence does not the essential establish following be faulted the statute and element of We disagree. “deliberation.” State requested examination. denying v. Ingram, 438, (Mo. 607 S.W.2d 440-41 performed A deliberate act is one Mehan, ex rel. Jordon State v. 1980); 597 a cool and deliberate state of mind. State 724 (Mo.App.1980). S.W.2d LaRette, (Mo. 102 S.W.2d banc Craig, 98, 101-62 State v. 1983); 642 S.W.2d alleges Defendant several claims of trial Strickland, (Mo. 1982); State v. banc ruling on points error. these we take (Mo. 1980). partic S.W.2d banc No account evidence that very strong ular required permit time is a finding of homicide. guilty deliberation. time may very brief. Wood, State v. (Mo. S.W.2d judge voir dire the trial During Hatfield, 1980); banc 465 S.W.2d family asked of the victim’s members (Mo.1971). jury recognize stand so that could them and avoid with We find no contact them. us, On the record the jury before prejudice in this. When the defense coun reasonably could find defendant intended to action, sel latеr protested judge take the life of Officer Jordan and acted made request a similar of the defendant’s with the necessary premeditation and delib family. properly These actions were within *5 eration. Defendant was with a gun armed the trial duty and discretion of the court to and seen standing near liquor the store steps take appropriate prevent improper to minutes prior the shooting. fatal upon jurors poten external influences and jury could reasonably find the entire course jurors. tial of product defendant’s conduct a of deliber Further, ation. the fatal shot was not fired also alleges prejudicial Defendant after immediately Jordan surrendered his allowing widow, error in the victim’s Emma wallet. Defendant started to turn away, Jordan, testify and in to remain the back, then turned and inflicted mortal courtroom explained thereafter. her She requisite wound. The deliberation could husband’s in the store purpose going to
have at occurred this time and the jury carrying his his concealed service re could have so found. volver and her keys, identified husband’s The defendant points raises numerous on gun, then badge. wallet and testified She appeal, some related to the guilty-innocence about her to the store trip after shoot phase trial, of the and some applying only ing. was testimony Mrs. Jordan’s relevant to the sentence. and there is no evidence in the record that Defendant complains that the triаl court Mrs. Jordan’s continued at trial presence erred in denying him a mental examination prejudiced The point the defendant. is pursuant 552.030, (Cum.Supp. RSMo without merit. 1982). preju of complaint Defendant’s provides Subsection 552.030 dice judge using in the trial court his own that a defendant is not entitled to an exam judgment checking on a disturbance and ination guilty unless he either plea files a not set insisting up that defense counsel “not guilty by reason of mental disease or blocking his exhibits view of the excluding defect responsibility,” or unless he was equally files a is without merit. Nor there written notice of his purpose to inquiring as to rely any prejudice on such defense in court’s timely a manner. called to theory Defendant’s was he whether a defense witness that was enti to a confidential tled impeach Blue on account of her psychiatric Jacqueline examina before tion had deciding alleged drug whether or not to in addiction and treatment voke a defense of mental disease defect. violated confidences.
Defendant claims the trial
im
larceny
object
punishing
court
statutes. One
properly
Jacqueline
person
goods
allowed
Blue’s credibili
as a receiver of stolen
is to
ty
prevent
disposing
real thief from
of the
by allowing
be bolstered
reference to
goods
lessening the
thereby
chances of
prior
her
consistent statements. Blue’s tes
principal
detection.
If he is the
actor in the
was
timony
strongly
corroborated
other
theft,
captor
property,
the actual
of the
it is
proof
evidence at trial and
of defendant’s
illogical and
he has
contradictory
say
guilt was
We find no
overwhelming.
preju
received it from
v. Honig,
another. State
dicial error.
(1888).
The meaning
“receiving”
of
in the con
the term in the
construing
native in
state’s
text of
receiving
goods
stolen
statute has
death
statute.
27-2534.-
penalty
Ga. §
been defined in
the
light
purpose
1(b)(4)
that if a murder is commit-
provides
statute and
purpose
receiving money
its common sense relation to
ted “for the
taking
receiving, being
Dictionary, Unabridged,
1.
but a sin-
1894
temational
“[T]he
transaction,
constitute,
course,
gle
only
(1981).
one
States,
crime.” Milanovich v. United
365 U.S.
551, 559,
728, 732,
69,
81
4. See 6. also, Utah, Wyo.. gain”. See “financial Cal. capi- 5. “The offender committed the offense of another, Okla., Tenn., pur- Idaho, tal murder for himself or 7. for Tx.. pose money thing receiving monetary 565.012.2(4), See Ill., Neb., Ind., Md., Mass., N.J., Ohio, value.” Conn., § RSMo. 8. also, 27-2534.1(b)(4) (1983); Pa., Va., Ga.Code Ann. § Wash.. Ky.Rev.Stat.Ann. (Cum. 532.025(2)(a)(4) Supp.1983); (1981); 200.033(6) Nev.Rev.Stat. loss, equivalent (as pay an a service 9. 1. for Ann., 16-3-20(a)(4) (Law Co-op S.C.Code (a person) expense) pay equivalent Cum.Supp.1982); service, S.D.Codified Laws Ann. expense. Third loss or Webster’s for a (Supp.1983). Compare, § 23A-27A-1. La.Rev. Dictionary, Unabridged, New International (West 1983). Stat.Ann. 14:30 (1981). 504
Cases construing pecuniary gain statutes
not suggest
Cherry
did
in
partic-
are important
in
only
they
aggravating
the sense that
ular
circumstance should not
are free from the
language
restrictive
be submitted at the new hearing. We
category
reject
three
position
remuneration and
taken
category
Nebraska
explicit
gun
Indeed,
four
hired
Court that this aggravating
statutes.
circumstance
apply
does not
to a
great
takes
stock in the
murder committed
holding
Rust,
See,
Rust,
528,
during
robbery.
in State v.
a
v.
197 Neb.
250
State
197
N.W.2d
867, 874,
258,
denied,
912,
(1971).
Neb.
In
to a
but
is also
State v.
304 N.C.
282 S.E.2d
439, 448
applicable
during
to a murder committed
(1981),
Supreme
the North Carolina
also,
robbery.”
Id. at 440.
Giles v.
See
Court stated that “the aggravating circum
State,
413,
479,
261 Ark.
549
483-84
S.W.2d
stance of pecuniary gain will
always
almost
(1977);
State,
195,
Collins v.
261 Ark.
548
be appropriately submitted to the jury
106,
(1977).
State,
122
In
S.W.2d
Neal v.
where a murder is
during
committed
442,
(1980),
270 Ark.
421
605 S.W.2d
course of an
robbery.”
armed
In
v.
State
rejected
court
argument
defendant’s
Oliver,
28,
302 N.C.
274
(1981),
S.E.2d 183
the statutory meaning
“pecuniary”
the court again
position
reiterated its
unconstitutionally vague
“motive” was
commented on
prior holding
its
420,
light
Godfrey
Georgia,
446 U.S.
86,
Cherry, 298 N.C.
257
(1971):
S.E.2d 551
1759,
(1980).
100
505 also been held to murders apply duplicative existing ag- to commit would be of an ted during robberies other property gravating and circumstance and is thus even crimes. more reasonable.17 the argument ignores
Five
have
Defendant’s
cases
states
statutes which use the
have
the
identical
in Arkansas which
held that
Ar-
language
565.012.2(4).
as that
gain
applicable
kansas
statute is
pecuniary
cases from these
most
states are the
to murders committed in the course of rob-
persuasive.
noted,
As previously
in Pulliam
Arkansas,
Missouri, has no
State,
bery.
spe-
like
Georgia
v.
held the statute applicable
aggravating
cific
statute seр-
circumstance
to a murder
robbery.
committed for
This
arately specifying robbery.
despite
conclusionwas reached
earlier Geor-
gia
interpreting
receiving
cases
the state’s
Stokes,
In
State
Defendant also that if legisla- ture had intended to com- include murder Defendant next avers the trial court mitted in course robbery as an aggra- in failing objections erred to sustain to sev- vating circumstance it should have explicit- alleged eral made prejudicial by remarks ly done so as have other argu- states. This prosecutor during penalty stage ment ignores the fact that five states prosecutor the trial. Defendant claims the do have separate covering robbery statute made reference to photographs, unadmitted as an aggravating circumstance have never- on improperly remarked the victim’s char- theless held pecuniary gain receiving acter, alleged deterrent effects of the death money statutes to proper evidence, also be instruc- penalty unsupported by the im- tions robbery-murder Missouri, cases. In to properly argued society’s right defend the application of the receiving money itself, stat- remarked that a life sentence could ute to murder the course robbery by be reduced or executive ac- legislative plain meaning important require, verts the 17.It to note that Missouri has a of the words to do, as the defendant separate aggravating to would have us circumstance cover the that death legal precedent be some kind of gun 556.012.2(6). Any killing. Section condition to hired obtaining pecuniary benefit. The statutory seeking construc- construction minimize du- majority tion we has reach been the view of a plication overlap aggravating and circum- of courts which have lan- construed similar attempt give stances would different effect guage.” Id. 1388. 565.012.2(4) (6). and The construction (4), urged practically makes the defendant proper 15. The court also said it was to submit circumstance, receiving money a subset of circumstances; two other rob- (6), explicit gun only hired statute. The bery deadly weapon, while armed with a by (4) killing unique be situation covered would (2) larceny weapon. deadly Id. at 358. with a proceeds. for inheritance insurance It is legislature very doubtful intended this Nevada, supreme the state court declined However, purpose the limited upon to address the issue in a recent case construing (4) apply to murders committed finding gun” the facts also fit “hired situa during robbery, independent purpose State, (Nev. tion. Wilson v. P.2d *9 565.012.2(4). given logical 1983). effect is to 506
tion, and any sentence in the instant case ment and the need for society
protect
subjected
would be
repeated
review.
support
evidence,
itself need not have
in
pleas
and such
may
upon
call
common expe
the
reviewing
record we are
Newlon,
606,
rience. State v.
627 S.W.2d
cognizant that broad discretion rests with
(Mo. banc),
denied, - U.S. -,
619
cert.
the trial court to
closing argument,
control
185,
denied,
103 S.Ct.
death in dispro- this case is excessive and 6, 1984. January Execution date set for portionate in simi- penalty imposed [“to cases, considering lar and both crimе APPENDIX the defendant.”] (1982 Replacement 13A-5-49 Ala.Code § Here, the defendant’s wounded victim Vol.) was on his knees and his over handed wallet to defendant. The (4) obvious inference from was committed capital The offense the evidence is that spotted engaged defendant or was an while or, officer’s police badge in the wallet and then in the commission of an at- accomplice commit, and to execute callously brutally proceeded tempt flight or after commit- commit, the wounded officer. In the words ting, attempting rape, or rob- .of experienced judge, trial the Honorable Dan- kidnapping; or bery, burglary Tillman, Court, iel report T. his to this (6) The offense was committed capital the murder of Officer Jordan was a “Cold for pecuniary gain; blooded assassination of defenseless [a] (1978) 13-703.F Ariz.Rev.Stat.Ann. § Or, man.” as Court observed in State procured 4. The defendant the commis- Newlon, killing, “This was a senseless or by payment, promise sion of the offense killing for killing’s sake.” 627 at S.W.2d payment, anything pecuniary value. 622. committed the offense 5. The defendant found, The jury beyond a reasonable receipt, expec- as consideration for the or in doubt, i.e., the “threshold requirement”, receipt, anything pecuni- tation of the presence of the statutory aggravating cir- ary value. cumstance, and then considered all the evi- 41-1303(6) (1977) Ark.Stat.Ann. dence and recommended the death sen- tence. taking After into account both the (6) cаpital murder was committed defendant, crime and the we conclude the for pecuniary gain penalty assessed is dispro- not excessive or 190.2(a) (West Cum.Supp. Cal.Penal Code § portionate to the penalties imposed in simi- 1983) lar cases. arriving this conclusion we (1) The murder was intentional and have reviewed the cases decided since the financial gain. carried out for enactment capital of our current murder (17) The murder was while committed statute, 565.001. The cases include those engaged the defendant was in or was affirmed, where the death sentences were of, accomplice attempted in the commission one case which reversed the death sentence of, flight or the immediate af- commission because of its disproportionality, ter to commit the committing attempting cases in which the choice of death or life following felonies: imprisonment without possibility parole for fifty years jury. was submitted to the 211. (i) Robbery in violation of Section judgment (1982 is affirmed. 16-11-103 Cum. Col.Rev.Stat.
Supp.) RENDLEN, C.J., HIGGINS, GUNN p. amendment L. Repealed DONNELLY, JJ., concur. 53a-46a(g) Conn.Gen.Stat. § HOUSER, Judge, part Senior concurs in and dissents in part separate opinion (1) The defendant committed the offense filed. during attempted the commission or com-
(1) murder, offense of rape, The armed or by was committed robbery, kidnapping of, mission flight or the immediate during prior a with a record of conviction person attempted from commission or commis- felony; for a capital of, a been felony previously sion and he had (2) murder, offense of rape, of The armed felony,” convicted the same or robbery, kidnapping was committed (5) The procured commis- engaged while the offender was of the promise sion offense or by payment, capital felony of another or commission value; payment, of of anything pecuniary of of aggravated battery, or the offense (6) or the defendant the offense committed was murder committed while the offend- expec- as consideration for the or in receipt, engaged er in the bur- was commission of tation of the receipt, anything pecuni- arson in the glary degree; or first value. ary offender, murder, (3) by The his act of 4209(e) (1982 Del.Code Ann. tit. 11 Cum. § robbery kidnapping, knowingly or armed Supp.) more great created risk of death to (l)(h) The defendant was paid paid by or person by in a public place than one person another agreed pay or had to or be or would weapon means of device which paid by another person conspired or had to be hazardous to lives of normally or be pay paid by another for the person person; one more than of the killing victim. offender of- (4) The committed the (l)(j) The murder was committed while another, murder for himself or fense of the defendant was engaged in commis- receiving any purpose money for the or of, commit, sion or attempt flight to or value; thing monetary committing after or attempting to commit any degree arson, of rape, kidnapping, rob- 19-2515(f)(4) (1979) § Idaho Code bery, sodomy or burglary. (f) murder was remu- The committed for (l)(o) The murder was committed for pe- or promise neration or remuneration cuniary gain. another to commit employed the defendant (West Fla.Stat.Ann. 921.141(5) Cum. for remuneration or the promise murder Supp.1983) of remuneration. (d) The capital felony was committed 9-l(b) (Smith-Hurd Ch. Ill.Rev.Stat.
while the defendant was or engaged, was Cum.Supp.1983) of, an accomplice, in the commission or 5. committed the murder The defendant attempt commit, or after commit- flight contract, agreement or under- pursuant or ting commit, attempting any robbery, money which he was to receive standing by arson, rape, burglary, or air- kidnapping, of value in return for commit- anything or piracy craft or throwing, plac- the unlawful procured or another ting the murder ing, or discharging of a destructive device money anything murder for or commit the or bomb. value; or (f) was for felony committed murdered individual was killed gain. pecuniary of another if: felony the course Ann. Ga.Code 27-2534.1 the murdered individual: (a) In all offenses for (b) cases of other defendant, (i) actually killed by authorized, which the death penalty may be or consider, shall shall include judge or he for jury (ii) physical injuries personally in his instructions to the it received consider, by substantially the defendant any mitigating circumstances inflicted physical injuries circumstances otherwise autho- with aggravating contemporaneously following law statu- one or by persons rized caused more for whose may legally which conduct the defendant accounta- tory circumstances Code, 5-2 of this and the supported by the evidence: ble under Section
offered, offered, has been given, has or has injuries anything either the de- received physical killing. inflicted value for the fendant or the other person persons Md.Ann.Code, 413(d) (1982) art. legally whose conduct he is accountable (6) The defendant committed the murder caused the death individu- murdered pursuant agreement to an or contract for al; and promise remuneration or the of remunera- (b) in performing the acts which caused tion to commit the murder. *12 the death of the murdered individual or (7) The engaged employed or which in physical injuries resulted personal- person another to commit the murder and ly by inflicted the defendant the mur- on the murder was to an pursuant committed dered individual under the of circumstances agreement or contract for remuneration or (ii) (a) subdivision of subparagraph para- the promise of remuneration. graph (b) Section, of subsection of this (10) The defendant committed the mur- the defendant acted with the to kill intent der while committing attempting or to com- the murdered individual or with the knowl- arson, robbery, mit or rape or sexual of- edge that his acts created a strong probabil- fense in the first degree. ity great death or bodily harm to the (Michie/Law Mass.Ann.Laws Ch. 69§ another; murdered individual or Co-op. Gum.Supp.1983) (c) the other felony was one of the fol- (a) In all cases in penal- which the death lowing: armed robbery, robbery, rape, devi- authorized, ty may be statutory aggra- assault, ate sexual aggravated kidnapping, vating circumstances are: detention, forcible arson, arson, aggravated burglary, invasion, home indecent liberties (5) the murder was by committed child, with a or the attempt to commit any defendant pursuant contract, to a agree- of the felonies listed in this (c); subsection ment or understanding which he by was to money receive or anything of value in re- Ind.Gode Ann. 35-50-2-9(b) (Burns 1979) § murder; turn for committing the (1) The defendant committed the murder (10) the murder was committed intentionally killing the victim while defendant and occurred during the commis- committing arson, or attempting to commit attempted sion or flight commission or af- burglary, child molesting, criminal deviate ter committing flight or after attempting conduct, kidnapping, rape, or robbery. aggravated to commit rape, rape, rape of a (4) The defendant who committed the child, indecent assault and on a battery murder was hired to kill. fourteen, child under assault with intent to (5) The defendant committed the murder rape, assault on a child years under sixteen by hiring another person to kill. age with intent rape, kidnapping Ky.Rev.Stat.Ann. 532.025(2)(a) (Bobbs- § ransom, kidnapping, armed robbery, un- Merrill Cum.Supp.1983) robbery, breaking armed with entering (2) The kidnapping offense of murder or intent felony, to commit a armed assault in was committed while the offender was en- arson, a dwelling, confining putting or gaged in the commission of arson in the fear or otherwise harming another for the degree, robbery degree, first in the first purpose stealing depositories, from or the burglary degree, rape the first or in the murder while occurred the defendant was first or degree, sodomy degree. the first in possession shotgun of a sawed-off or a gun. machine
(4) offense offender committed the 99-19-101(5) (Cum.Supp. Miss.Code Ann. § another, of murder for himself for for the 1982) purpose receiving money or other value,
thing monetary profit. or for other (d)The capital offense was committed engaged, while the defendant was or was 1983) (West La.Rev.Stat.Ann. 14:30 (4) When the specific of, offender has intent in the an accomplice, commission or to kill great commit, or inflict and has bodily attempt harm or commit- flight after 15-A-2000(e)
N.C.Gen.Stat. (Cum.Supp. 1981) commit, or ting attempting any robbery, arson,
rape, aircraft burglary, kidnapping, (5) The capital felony committed or piracy the unlawful use or detonation of engaged, while the defendant was or was a bomb or explosive device. abettor, of, an aider or in the commission or (f) The offense was committed capital commit, an attempt flight or after com- for pecuniary gain. commit, mitting attempting or any homi- cide, offense, arson, 565.012, robbery, rape, or a sex 1982 Supp. , RSMo burglary, kidnapping, piracy or aircraft or Statutory aggravating circumstances throwing, the unlawful placing, discharg- shall be limited to following: ing of a destructive device or bomb. (4)The offender committed the offense (6) The capital felony was committed for another, murder for himself pecuniary gain. for the purpose receiving money or any value; thing of monetary Ann. 2929.04(A)(Baldwin Ohio Rev.Code *13 Cum.Supp.1982) (6) The offender caused or directed an- other to commit capital murder or commit- hire; (2) The offense was committed for ted capital murder agent as an or employee The (7) offense was committed while the of another person; offender was committing, attempting (1981) MontCode Ann. 46-18-303 § commit, fleeing or after com- immediately aggravating relevant [No circumstance.] mitting attempting kidnap- or to commit 29-2523(1) (1977) Neb.Rev.Stat. arson, § ping, rape, aggravated aggravated robbery, aggravated or burglary .... (c) hire, The murder was committed for pecuniary gain, (1983) or for or the defendant Oklahoma Stat.Ann. tit. 21 701.12 § hired another to commit the murder for the (3) person The committed the murder for defendant; promise or the of remunera- remuneration (1981) Nev.Rev.Stat. 200.033 § tion employed or another to commit while the
(4) The murder was committed the purpose murder for remuneration or of person accomplice, or was an engaged, remuneration. com- attempt
in the commission of or an (Purdon 42 9711(d) Pa.Cons.Stat.Ann. tit. § attempt- mit or after or flight committing 1982) commit, assault, robbery, sexual ing any (2) The defendant or was paid paid by or kid- degree, burglary arson in the first person pay another or had contracted to or napping degree; in the first paid by person conspired be another or had per- (6) The murder was committed or for the pay paid by person another another, son, purpose for the for himself or killing of the victim. thing of receiving money any of or other (6) killing The defendant committed a monetary value. felony. while in the of a perpetration II.(a) (Cum. 630:5 N.H.Rev.Stat.Ann. § (1981) Ann. 11-23-2 RJ.Gen.Laws § Supp.1981) relevant circumstance.] [No for pecu- committed (6) The murder was 16-8-20(0) (Law Co-op Ann. S.C.Code niary gain. § Cum.Supp.1982) (1982) 2C:ll-3(c)(4) NJ.Stat.Ann. § (d) (a) Aggravating The defendant committed the murder circumstances: expec- as consideration for or in receipt, committed while in the (1) Murder was receipt any thing pecuni- tation of the of commission of the crimes or acts: following value; ary ravish, (c) (a) rape, (b) assault with intent (e) (d) (e) robbery The defendant the commis- while procured kidnapping, burglary, promise deadly weapon, (f) larceny or with a by payment sion of the offense armed value; house- pecuniary deadly weapon, (g) with use of a payment anything arson, arson,
gravated aggravated burglary, burglary, aggravated breaking, kidnapping kidnap- or (h) killing by poison (i) torture; ping. physical (4) The offender committed the offense (f) The homicide was committed for pe- of murder for another, himself or for the cuniary personal or other gain. purpose of receiving money any or othеr 18.2-31 (Cum.Supp.1983) Va.Code § thing value; of monetary (b) willful, deliberate premedi- S.D.Codified Laws Ann. 23A-27A-1. tated killing any person by another for (Supp.1983) hire; (3) The defendant committed the offense (d) willful, deliberate and premedi- another, for himself or for the purpose tated killing any person in the commis-
receiving money any other thing of mon- robbery sion of while deadly armed with a value; etary weapon. (5) The defendant caused or directed an- Vt.Stat.Ann. tit. 13 2303 (Cum.Supp.1983) other to commit murder or committed mur- relevant aggravating der as an agent [No or employee of circumstance.] another person; (Cum. Wash.Rev.Code Ann. 10.95.020 Supp.1982) Tenn.Code Ann. 39-2-203(i) (4) The defendant committed the murder (4) The person committed the murder
for remuneration or the purpose of remu- pursuant agreement to an that he or she neration, or employed another to commit would receive money thing the murder for remuneration or the promise *14 murder; value for committing the of remuneration. (5) person person solicited another to (7) The murder was committed while the commit the murder and had paid or had defendant was engaged in committing, or agreed to pay money any thing or other was an accomplice in the of, commission or murder; value committing for was attempting commit, to or was fleeing Wyo.Stat. 6-2-102(h) (Supp.1983) § after committing or attempting commit, to (iv) The murder was committed while the any first degree murder, arson, rape, rob- engaged, defendant was or was an accom- bеry, burglary, larceny, kidnapping, aircraft of, in plice, the commission or attempt an to piracy, or unlawful throwing, placing or commit, flight or after committing or at- discharging of a destructive device or bomb. tempting commit, to any robbery, sexual Tex.Penal Code 19.03(a) (Vernon Ann. § assault, arson, burglary, kidnapping or air- 1974) craft piracy or the unlawful throwing, plac- (2) the person intentionally commits the ing discharging or of a destructive device or murder in the course of or committing at- bomb. to tempting kidnapping, burglary, commit arson; (vi) robbery, aggravated or The murder was rape, pecu- committed for niary gain. person commits the murder for promise remuneration or the of remunera- HOUSER, Judge, NORWIN D. Senior
tion or employs another to commit the mur- concurring part dissenting part. in and in der for remuneration or the of re- promise muneration. no Finding appellant’s merit points seeking conviction, to I overthrow his Ann. 76-5-202(1) (1978) Utah Code § (d) The homicide was committed while concur in the of those analysis points made of, the actor engaged in the commission in the majority opinion. respectfully I dis- commit, or attempt to or flight sent, however, after from the final disposition of commit, committing or to attempting ag- affirming the case the death penalty, gravated robbery, robbery, rape, forcible reason I sup- that find no evidence to assault, sodomy, aggravated ag- sexual port appellant conclusion that killed evidence, Robert Jordan for thе purpose receiving however, On it is neither a money. permissible inference, reasonable nor a un- der any accepted definition of the term The law allows the state take the life “receiving,” fired appellant the fatal of a person as the penalty for mur- capital shot for the purpose of receiving money. der only in cases where one or more of the aggravating specified circumstances and approving endorsing that infer- RSMo 565.012 exist. One of these cir- ence, and in interpreting 565.012(4),the cumstances is the situation in which the majority opinion apply fails to the well-es- offender commits the offense of mandating tablished rule of construction murder “for purpose of receiving money that in the application of 565.012 to a or any thing of monetary value.” particular set of requires facts the law 565.012(4). Section This is the Court to construe the literally statute upon by circumstance relied the state in its strictly broadly and not expansively. attempt justify sentence, the death but regard life, In its for the sanctity of human neither from the facts in evidence nor from part parcel which is of the American the inferences which reasonably may courts, legacy, guardian as of that lega- drawn therefrom itmay be said confidently should not cy, pull and stretch a stat- penal the aggravating circumstance relied ute beyond its and evident intent and plain upon existed in this case. The facts do not purpose, or substitute an aggravating cir- statute, fit the and vice versa. law, cumstance not prescribed by in order Under the evidence appellant commenced to attain what may be deemed substantial and completed the robbery, and received justice in a particularly revolting case. possession into his the fruits of the crime four of Subsection 565.012was meant (the containing wallet money), before the apply following situations of which the fatal shot was question fired. There is no typical examples: are where mur- person that at the time the fatal shot was fired ders or causes to be murdered an insured in appellant already possessed had himself of a life insurance policy person and the the money. It is clear that appellant fired causing the death is a beneficiary named the fatal shot not for the purpose of obtain- policy or otherwise finan- ing gain stands “receiving” which he money, just had *15 death; obtained, cially taken from the where the maker of and but for other reasons. The most by obvious inference is a will is murdered the appel- through agency that lant fired the fatal shot for the purpose legatee, of of a devisee or other who person keeping, securing and retaining possession gain would from the death. financially of money taken from previously his victim Appellant’s repulsive killing. crime was a at gun point. Other reasonable inferences The shot presence was firеd in the of the may be drawn from the ques- facts on the child, victim’s while the victim was down on tion of appellant’s purpose or motive in knees, his kneeling gunman before the —an committing capital (1) murder: that when atrocious, shocking slaughter, performed in appellant wallet, opened the thereby reveal- pitiless, merciless manner. One recoils ing police badge, the appellant fired the with horror on the reading record of this fatal shot to eliminate an officer of the law act, tragedy, but no matter how evil the potential as a against witness him should he may accused’s life not be forfeited lawfully apprehended; (2) be appellant, realiz- statutorily for the deed in the absence of a ing police that a officer in plain clothes circumstance, prescribed aggravating might carrying revolver, a service delib- there was none in this present case. erately killed the officer appel- to insure This in the of a killing perpetration was lant’s safe retreat and facilitate his escape 565.032.2(11), robbery. By July from effective (Before the scene of the robbery. the 1, 1984, fatal provided shot the General has finally incapacitated Assembly him the offi- produced cer his revolver and fired at that it is an circumstance au- ap- pellant, inflicting him). three wounds in upon thorizing the extreme if murder penalty degree the first was committed while the are fully capable discharging of their con- the engaged perpetration defendant in responsibility stitutional in criminal trials.1 robbery, of but this law was challenge new not in We should and should accept this and effect force at the time of this occur- steps take to make sure affirmative rence, and is not to be applied retroactively. fair, beyond initial trial is full and criti- appropriate cism. We should take action I in concur of the affirmance convic- procedure correct flaws in below when tion capital of murder. I dissent from the coming first rather than we sense them execution, of order and would remand the forth with which holdings actually court for cause resentencing under RSMo 565.- post-conviction glossing over review seri- 014.5(2). ous Nor should we be too deficiencies. quick to for omissions on the part look BLACKMAR, in Judge, concurring part counsel as publicly financed defense occa- dissenting in part. sion for declining judicial scrutiny possi- I in concur affirmance convic- bly serious errors. tion of trial murder. The itself was eminently and, fair reflection, after careful 1. The Mental Examination Issue I conclude that the infirmities which I find made, suggestions In line I just with the proceedings with dealing mental ex- believe that improperly this defendant was amination do not require a new trial of the refused a psychiatric examination. guilt-innocence phase. The however, indigent defendant is and has been penalty phase, is seriously represented stages deficient several all St. Louis respеcts, and the death Public Defender’s office. He was arraigned sentence should not be allowed to stand. I 18, on June entered a 565.014, plea believe that enjoins RSMo “not upon guilty. plea us a At no time was there a special responsibility cases in guilty by reason of mental de- which sentence of disease or death has been pro- nounced, and fect.” that it is sense of Gregg Georgia, U.S. 96 S.Ct. Four days later filed L.Ed.2d 859 and the cases decided document “motion appointment entitled concurrently that state courts at all levels entitled, another psychiatrist,” and “mo- give
should scrutiny detailed to cases in tion permit filing late of defense men- which ultimate penalty is a possibility. tal excluding responsibili- disease or defect trial judge ty.” something By should be more This latter motion anomalous. 552.030.2, wrestling express language than a may referee who break an RSMo illegal occasional a notice on a generally rely hold but leaves of intent defense the combatants to of mental disease or defect could have been their own devices. The filed, court, question is not ten so much whether the without leave within trial *16 is after judge days arraignment. to be or “faulted” “convicted of as error” whether the defendant has had a The motion for of a appointment psychia- trial in which all issues have appropriate trist stated that the defense counsel was explored been properly the case sub- unable client a to advise her as to whether mitted to the jury on the basis of full plea excluding of mental or defect disease information. be responsibility profes- should made until a Complaint about the sional could be had and pro- has been made mental examination post-conviction remedies, the espe- liferation evaluated. The motion also contained in death cially partic- sentence cases. I am of the examination request that the results impressed ularly Day Justice Sandra be available to the defendant alone unless suggestion O’Connor’s that the state Courts and until such should be entered. plea a O’Connor, Mary Perspective Judge,” Relationship “Trends in the of a 22 Wm. & Be State the tween Federal and State Courts from the L.R. 801 began There is no indication motion for forthwith indi- that the the trial without the brought was ever up, gent having leave called to the defendant’s had any psychiat- attention, court’s or The first ric ruled on. examination. for appointment motion psychiatrist a justification court’s The state’s for the overruled by Judge July
was on McGuire appoint psychiatrist purely failure to a is 1981. There is nothing in the record as to It is asserted that procedural. 552.030.4 motion, proceedings the on this other than authority no for such an examination gives ruling, the and no of the explanation court’s plea unless the defendant either enters a reason for its from appears action. It later guilty by “not reason of mental disеase proceedings op- that the had the defendant excluding responsibility,” or mental defect portunity present support evidence in files notice of intent to on that de- rely motion presented none. fense, in accordance with 552.030.2. The 20,1981, July seeking argue filing on to goes On second motion state that the appointment of a was filed. as an psychiatrist June 1981 should not be treated one, notice, motion was previous This similar to the because it is in the appropriate cast request but recited that the had been less never defendant form of a leave and was cooperative in his counsel as a to the dealings with called motion or up brought than earlier. This motion also over- The state’s was court’s attention. conclusion ruled, 12, 1981, on August by Judge was not to the the defendant entitled McGuire, without prejudice. examination because his failed to counsel required steps take the to obtain it. third
A motion was January filed 1982, before the judge who at the of defense is indeed presided conduct counsel motion, time, This trial. for the con- It is difficult the puzzling. first to see how tained statement that evi- could if no- psychiatric possibly harmed defense penalty rely dence needed for use at tice of intent to on the mental phase of the trial in of a convic- given. the event were notice could be withdrawn time, and, withdrawn, tion of not murder. Counsel also ad- if would duced, during motion, subsequent argument prejudice on the defendant in the defendant, military including records of the to the proceedings. contrast situation cases, of a entitled report suicide in 1967 while civil a criminal defendant is attempt any recognized in Vietnam. The court overruled the again plea tender order motion, defense, taking newly without note of the the foundation for and counsel lay evidence, suggested' accuracy need for does vouch for the factual psychiatric So, stating “that’s plea. simple expedient been denied two times be- fore,” and on lack of no- commenting sup- making appropriate plea giving porting tice, evidence. defense counsel could have obtained have examination could requested A fourth on February motion was filed had the of the information it con- benefit 16,1982 Counsel, just before trial began. during Had phases tained both of the trial. to the response judge’s trial stated question, prob- disclosed examination no mental she was not defense of relying on the would be prejudice.2 lem there no excluding responsi- mental disease or defect because, Mehan, psychiatric in the bility absence of ex rel. Jordon v. 597 S.W.2d information, rejected con- (Mo.App.1980) she had no basis for determin- a claim for infor- ing psychiatric whether the defense had merit. Coun- fidential treatment mation, 552.- psychi- holding sel also mentioned the that the sense of importance §§ *17 pur- penalty phase reports atric information at the of 020 and 552.030is that ordered the trial. The motion sections are to available again was denied and suant to those be prosecution reports be If the of could not used to the defendant’s disadvan- received 552.020, provided examination as tage 552.- §§ defect unless claim of mental disease or Carter, and State v. RSMo actually presented jury. to the was (Mo. 1982), S.W.2d banc information parties. both The specifically reject- appropriate court have been smoked out and ac- ed the tion taken. claim that a defendant is entitled to a confidential evaluation in order to decide judge suggested The trial that the earlier defense,
whether to use the mental but of motions had been denied because of “lack recognized the problem defendant’s justify evidence” to the examinations. It is suggested the use of the public defender’s for requests the sense of the statutes that funds, citing 600.150, 600.040 and on freely granted examination should be present RSMo 1978. The motions cited of counsel’s representations. the basis are, furthermore, also, sug- these sections There circumstances but the record is silent appropri- that an examination was gesting as to the availability of funds. this case. It is for entirely proper ate in The entire responsibility for the absence argue jury to the prosecutor of a psychiatric evaluation should not be in Vietnam are too years ago events defendant, placed on the or on his counsel. remote to a conclusion as to the permit It would have been far better if one of the capacity, publicly defendant’s mental but a judges to whom the successive motions appointed lawyer who is not trained in psy- presented were had assumed a more active chiatry would nevertheless be concerned role when the presented. motions were prior psychiatric about the defendant’s his- courts should lean over pro- backwards to want tory, expert and would advice and vide psychiatric evaluation for an indigent guidance. Evidence use drug depend- of capital held answer charges. ency might suggest inquiry further even The court’s powers under Chapter are though indicating mental necessarily not so circumscribed as the state would disease or defect. Counsel’srepresentations have it. Section clearly 552.020 authorizes problems communication with the de- the court to act on own motion. Even its fendant should also be a matter for serious though that section deals with the determi- concern, questions capacity as these raise trial, nation of fitness report to stand suggestion to stand trial. The that evi- an examination is expressly required to in- dence is before the court required may clude the examiner’s conclusion as to the psychiatric must order a examination is cir- presence of a mental disease or defect ex- cular. It is not reаsonable to assume that cluding responsibility. represen- Counsel’s all persons suffering from mental disease or tations of problems of communication with manifestations, objective defect exhibit so defendant, as contained in the second that mental examination not be had may motion, suggest that an inquiry capaci- into unless the need is demonstrated evi- by lay ty imperative. It would have been far very dence. The of the de- irrationality better if the responsible judge, some fendant’s act and the absence of reasonable trial, time before had called counsel before expectation gain from his conduct are him explore indicating possibility entire matter of mental circumstances that the examination of mental disease or defect should be ex- and the motions and papers on file. plored. The intention “request behind the
permit filing” late probed. could have been The defendant is also on solid ground If counsel stood on request for confiden- suggesting psychiatric may evaluation treatment, tial and said that she did not for the important penalty phase want the examination proviso, without this trial, if there no claim of even substantial clarified, the record would at least be excluding responsi mental disease or defect might inquiry have been made as to the 565.012.3(2), pro bility. Section RSMo availability funds under 600.040 or may vides that the defendant show as 600.150, suggested as Court circumstance felo mitigating “[t]he Jordon, Appeals A in- supra. notice of was committed while the defendant was ny tent in proper might form have been sug- the influence of extreme mental or under gested. If counsel had some devious pur- presence emotional disturbance.” pose in proceeding did, as she could this too this circumstance demonstrates the need
516
expert guidance in preparing a defense. nation for use at the penalty stage was
Other evidence
problems
mental
is also
nearly
of.
tendered
three weeks before trial.
freely admissible
punishment
at the
phase. There was occasion for it. The application
See State v. McIlvoy,
(Mo.
basis that the defendant waited until trial was imminent making before any known majority The would affirm the death sen- circumstances which might show that a tence in this aggra- case based on the sole mental appropriate. examination was vating circumstance that the murder was each case court held that the record did committed “for the purpose receiving not show substantial facts indicating the any money thing monetary val- presence of mental disease or mental de- ue by taking wallet.” The ma- [Jordan’s] fect. For the reasons just stated do they cites cases from jority two other states with not control present situation, in which statutory language identical to ours as sup- the need for a mental porting examination was its conclusion.* Both Pulliam v. suggested State, at an early stage. (1976), 236 Ga. S.E.2d Woomer, S.C. Even though it would pre- have been far (1981), (reversed S.E.2d on other ferable for the court to have ordered a grounds) involved the submission of multi- examination, mental I do not believe that it ple aggravating circumstances. latter The is necessary to reverse the conviction of case did not address the present- issue here capital murder for this appli- reason. The ed. deficient, cation was technically and there is no indication in the record that the de- next examines majority statutes fense would have been able to demonstrate with the aggravating circumstance mental disease or defect sufficient ex- murder was committed for pecuniary gain clude responsibility. question whether and finds that most have applied the cir- there might be a viable grounds defense on cumstance during to murders committed of mental incapacity could probably be an- robbery. course an armed Inasmuch swered on the basis of an examination con- as fatally shot Officer Jordan in ducted present time,3 at the him, but such the of robbing opinion course con- procedure is foreign appeal. to this It cludes that circumstance not necessary to set aside the supported by conviction submitted in this case was simply because highly speculative substantial evidence.
possibility that a capacity mental defense position The defendant’s is that the “re- might have been feasible. ceiving money” aggravating circumstance
The situation is different as to the sen- was' meant to apply only to a murder for tence of hire, death. The request for an exami- the murder of an insured a benefi- Drope 3. The present situation is not at all like v. Mis- at trial was essential when the defend- souri, 420 U.S. 95 S.Ct. during L.Ed.2d 103 ant disabled himself trial a suicide (1975), holding inquiry that an immediate as to attempt. capacity right a defendant’s to waive his to be
517
Anglo-Ameri-
by
premise
the murder
an ancestor
result is a basic
ciary, and
supplied).
(Emphasis
can criminal
law.
heir to accelerate the
a
inheritance. Such
holding would follow from a strict construc-
492,
State, 395
499
And in Peek v.
So.2d
statutory language.
tion of the
As noted
a murder
(Fla.1980), the court found that
majority,
the
two
the more
states with
theft
the victim’s
preceded
which
the
expansive
statutory lan-
“pecuniary gain”
pecuni-
for
automobile was not committed
guage have reached this conclusion. See
court stated:
record
ary gain. The
“[t]he
State, 367
(Ala.Cr.App.
Ashlock v.
So.2d 560
the conclusion that Mrs.
support
does not
Rust,
528,
1978) and
v.
197
250
the
State
Neb.
was murdered to facilitate
Carlson
theft,
any
867
Boutwell v.
had
intention
appellant
N.W.2d
See also
or that
Fi-
acquisition.”
from his illicit
State,
profiting
should be
argu-
afforded “wide latitude” in
Review
Sentence
during
ment
case. As indicated
previously,
opt
more,
less,
I would
not
respond
It is difficult to
to the sentence
stake,
control when a defendant’s life is at
principal opinion
review found in the
be-
but whatever
control
exercised should cause the
on for
are
comparison
cases relied
apply equally to defense counsel and the
not
My
detailed.
examination
cases
prosecutor.
here,
judge,
The trial
exercised in which
has
death
upheld
this Court
sen-
much more control over defense counsel
tences,
prosecutors
and in which
have
than over the prosecutor.
sought
juries
the death
but
have
penalty
me that the
agreed, persuade
sentence
Lewis,
In
443
(Mo.
State v.
S.W.2d 186
mitigated.
should be
1969), this Court
thаt a prosecutor
held
should not
to belittle
attempt
jury’s
only
The
date in
case to
which we have
duty to
set defendant’s sentence
arguing mitigated a death
is State v. McIl
sentence
the possibility
parole.
objection
No
(Mo.
1982),
voy, 629
333
banc
involv
S.W.2d
Lewis,
made in
plain
but
Court found
ing killing
in which the defendant
for hire
error that
reversal. Although
warranted
victim,
dry
stalked the
with one
run before
this Court
always
has not
found references
acts, by
the fatal
McDonald’s
shooting.
to the possibility of intervention to rise to contrast, appear
impulsive.
to be
It is true
error,
the level of plain
the law is that such that another
refused to
jury
impose
references are
California v. Ra
improper.
the person
death sentence on
who hired
-mos,
-,
108
U.S.
S.Ct.
77 Mcllvoy, but McDonald should also be enti
(1983),
L.Ed.2d 1171
does not change the
tled to
of that sentence.
comparison
State
Ramos,
law in this respect.
the United
Williams,
1981).
(Mo.
v.
26
banc
S.W.2d
Supreme
States
held that a
Court
Califor
factors,
If one examines the external
Mcll-
nia law requiring
indicating
instruction
jury
willful,
voy’s case seems more
deliberate
that a
without parole
sentence of life
could
shocking
only possi
than
one. The
Eighth
commuted did not violate the
factor,
ble distinction is in the mental
Fourteenth Amendments to the United
any kind
here the denial of
of mental exam
The
States Constitution.
Court repeatedly
large. Mcllvoy
private
ination looms
hired
emphasized that the instruction was per
experts
fragile
who testified as tо his
missible choice for the state to make but
will.
psyche and weak
The defendant
that its decision was not intended to “over
should not be
to death without
sentenced
ride the
that the
contrary judgment”
possi
for similar consideration.
opportunity
bility of
was an improper
commutation
con
a criminal
The defendant has
record ex-
sideration.
103 S.Ct.
3459-60.
tending over
but the crimes are
many years,
each
is no
majority dismisses
of Mc- non-violent. There
evidence of sadis-
Donald’s claims
as
insignificant
present
of error
tic excess such as was
some of
within
argument.
the context of the entire
the cases in
this Court has sustained
which
When
objectionable por-
robbery
Taken
death sentences.4
alone is
individually, the
circumstance,
might
juries
argument
tions of the
not warrant
the sole
reversal;
however,
have declined to re-
argument,
regularity
was rife with some
I
with error.
knew
turn death
submit that
prosecutor
better.
verdicts.5
Turner,
Smith,
(Mo.
(Mo.
4. State v.
5. State v.
S.W.2d 417
portionate to the in similar penalty imposed
cases, considering both the crime and the
defendant.
For the plural assigned, reasons and those Houser, by Judge
adduced I would affirm
the judgment but would set aside the death
sentence. *21 Missouri,
STATE of
Plaintiff-Respondent,
George GILMORE, Clifton
Defendant-Appellant.
No. 64024.
Supreme Missouri, Court of
En Banc.
Nov. 1983.
Rehearing
Denied Dec.
proved
robbery,
(Mo.
1982) killing
police
for murder in the course of a
banc
on
officer
—
Stokes,
Newlon,
supra;
duty;
State v.
State v.
circumstances
have been
Baker,
present.
vile,
See State supra “outrageously
wantonly