*1 Missouri, STATE
Plaintiff-Respondent,
George MERCER, Defendant-Appellant.
No. 61797.
Supreme Missouri, Court of
En Banc.
May 1981.
Rehearing Denied June 1981.
prior rape accusation of of another victim defendant; and the cross-examination respect previously defendant with ex- cluded evidence. addition to the review error, will the sen- the Court review *3 565.014, tence as mandated RSMo § 1978. Affirmed.
I. convic- supports The evidence defendant’s Keeton, a tion for the murder of Karen female, 22-year-old early in the morn- white ing August hours of 1978. It estab- defendant, 34-year-old lished that a white male, drinking was with friends at the Blue Grandview, Missouri, Lounge Seven evening working before. Karen was there evening, During a waitress. defend- ant made the comment that he would like Gardner, to take her to bed. Steven a acquainted friend of defendant who was Karen, with up went to the bar to talk to her. He returned a short time later and going said he to breakfast and Karen were go and would house after- to defendant’s Gee, ward. with David an- Defendant left friend, other to defendant’s home and went Belton, Missouri, arriving there around Campbell 12:30 a. m. was at John babysitting house with defendant’s ten- year-old daughter. A time later short Gardner and Keeton arrived. Karen visiting defendant
After for some time picked up double-barrelled a sawed-off Lozano, Jr., Harrisonville, Cenobio for de- shells, shotgun, opened it to show the fendant-appellant. Karen, tapped her on the walked over to gun, “get head with told her to her Ashcroft, Gen., Otto, John and Atty. Paul R. upstairs.” ass he Atty. Gen., Asst. When she hesitated Jefferson City, plain- for grabbed pushed her to the stair- tiff-respondent. her and help. He
way. yelled for to She Gardner HIGGINS, Judge. Tiny,” responded, Birthday, then “Happy said, turned to the others and “Seconds.” George was “Tiny” Mercer convicted downstairs with Karen’s dress was tossed murder, 565.001, RSMo telling “put these defendant Gardner to 1978; fixed his at go, you know where they clothes where death, 565.012, 565.008 and 1978. §§ RSMo go.” put the clothes in a Gardner Judgment accordingly. was rendered He money from her pocketed closet and charges errors to the excuse for cause of purse. prospective jurors objections who voiced downstairs; he was penalty; consideration of the death came Defendant later prosecuting went attorney’s opening reference in naked had an erection. Gardner and awhile, stipulation concerning statement and beer for upstairs. Defendant drank this, and dry Campbell reported got showered returned to the table to defendant off what himself at which time he remarked “a bed, grabbed legs, pulled Karen’s and good piece of ass” she was and that her off the bed. took sheets Defendant going go back in the and “fuck her butt.” washing and blanket machine and later, yelled minutes Several Gardner off Campbell wipe told the waste Gee, upstairs. David to come followed Gee back told floor. Defendant came Campbell, complied. by defendant and John put the Campbell get tail- his truck Karen, who Upstairs, defendant told gate put down so he could Karen it. bed, lying on the undress Gee naked Campbell complied, defendant After sucking per- dick.” “start David Gee’s She body put it in brought down and answered, formed as directed. After Gee Campbell defendant climbed in truck. good”, question “Pretty to defendant’s driving Campbell the truck and started performance, said, about her Finally defendant defendant’s direction. cunt, *4 leaky you’d “You do it better.” better Campbell stop. got out and had Defendant now, how doing When asked she was Gee body into a dumped the over a fence field. answered, Defendant, “Better now.” Gard- “Now, Campbell, When he returned he told Campbell ner and returned downstairs. At 17-year-old killed like leaky if I’d that cunt time, this Karen what she was stopped do- on any I I did her ... wouldn’t have been ing, put and on. Gee his clothes Karen right now.” rape charges things and I’m her; going happen asked what was time, rape charge a At that had defendant attempted to When Gee reassure her. Gee 17-year-old by a pending him filed downstairs, told Camp- returned defendant girl. Campbell returned to Defendant and get upstairs all be in bell so would gave defendant defendant’s house where together. Campbell proceeded upstairs and hide, and Campbell shotgun burned cried, Karen and found unclothed. She purse. Karen’s her, to console Campbell trying talked with Campbell and four later Three to weeks her. He too returned downstairs. badly for and found attorney his looked again upstairs as Defendant started They Keeton. body Karen decomposed leaving. was He asked Gardner Gardner The body reported this to the authorities. what he wanted done with Karen Gard- teeth. by of her was identified means replied, ner “Kill the bitch.” Defendant said, if “Okay, brother.” Gardner asked he II. no, any help; would need said 238, 92 Georgia, v. 408 U.S. In Furman get body rid of where it would (1972), the Court 33 L.Ed.2d left, not be found. and Gee de- Gardner provi- penalty Georgia’s struck down death Campbell upstairs, went fendant went may of death holding penalty sions that the sleep downstairs. procedures sentencing imposed not be under by was de- Campbell suddenly awakened pun- risk that create substantial calling upstairs. his from He fendant name arbitrary and in an ishment will inflicted straddling and found defendant responded manner; did not hold the Court capricious her throat. body with his hands on Karen’s per se vio- the infliction Campbell to take Defendant screamed at on cruel and ban Constitution’s lates the Campbell the arm of pulse. grabbed her Georgia, Gregg v. punishments. unusual seemingly body and found a Karen’s lifeless 2909, 2932, 153, 188, pulse. faint At the time he told defendant L.Ed.2d 859 this, he could smell waste which human was Furman Following the in decision Defendant, “hollered”, all over the bed. legislature Georgia en- Georgia, supra, the head, the left Karen’s struck side of scheme. penalty new acted a said, you leaky “Die This is a bitch ... Court held Georgia, Gregg supra, her, strangling Die.” He cunt. continued not violate did statutory system take again Campbell to her screamed at stated: The Court Campbell pulse. no When the Constitution. pulse. found gravating in Furman circumstance or circumstances expressed concerns [T]he imposed penalty of death not be found to exist. capricious can arbitrary in an manner 565.012.1(4), Supp. 1980. Section RSMo by carefully be met drafted statute aggravating circum- one of the Unless sentencing authority is ensures that found, 565.012.2is stances enumerated guid- given adequate information and imposed. penalty cannot be Sec- the death ance. recom- If the verdict is a tion 565.012.5. death, desig- Georgia must Id. at 2935. The mendation of S.Ct. at nate the statute found to meet this test. a reasonable doubt. Sec- beyond it found pat- The Missouri death scheme is judge required tion 565.012.4. The Georgia approved
terned after the scheme jury. impose the sentence fixed Sec- Gregg Georgia, supra. 565.- Section tion 565.006.2. 1978, permits RSMo sen- imposed, the If the death persons those convicted of must be reviewed on the record tence murder.1 In a case murder defend- to con- this Court. This Court is directed guilt ant’s or innocence is determined well as errors sider the stage first of a bifurcated trial. Section appeal, and to determine: raised on 565.006.1, Supp. RSMo 1980. Where the verdict, the sentence of death judge guilty returns a Whether passion, which, the influence of presentence hearing imposed is held at under *5 factor; arbitrary other prejudice, any or jury judge or shall hear additional [T]he extenuation, mitigation, evidence in (2) supports evidence Whether the aggravation punishment, including of statutory finding of a jury’s judge’s or any prior record of criminal convictions as enumerated aggravating circumstance pleas guilty, pleas of or of nolo con- 565.012; and in section defendant, tendere of the or the absence is any prior of such criminal of death convictions Whether the sentence pen- pleas. Only aggravation disproportionate such evidence excessive or cases, prosecution considering as the alty imposed has made known to the in similar prior to his trial shall be ad- the defendant. both the crime and jury judge missible. The or shall also 565.014.3, 1978. RSMo Section argument by hear the defendant or his in its deci- include The Court must also prosecuting attorney counsel and the re- into similar cases taken sion a reference to garding imposed. to be Upon re- 565.014.5. consideration. Section Section 565.006.2. view, may be affirmed sentence for remanded or set aside and the case judge required or to The to consider judge based on resentencing by the trial jury in his for it include instructions to the of counsel. Id. argument record and any statutory aggravating to consider or mitigating supported by guilty of jury found Mercer After the evidence, aggravating any mitigating or murder, evidence no additional capital law, circumstances otherwise authorized hearing; both presented presentence at the and, however, did, make the state and defendant punish- regarding arguments additional cir- Whether a sufficient jury instructed on and ment. The court to war- cumstance or circumstances exist aggravating circumstances: found two imposition
rant the of death or whether defendant, as mitigating sufficient circumstance or cir- 1. Whether Stephen Gardner ag- of outweigh agent employee or cumstances exist which killing being guilty Any per- of another Capital human of 1. murder 565.001. defíned. — unlawfully, wilfully, knowingly, murder. the offense of son who delib- erately, premeditation or causes and with kills direction, and at his murdered Karen A of death cannot sentence be carried 565.012.2(6)] imposed Keeton. out if the recom- or [Section by excluding mended it chosen ve- 2.Whether the murder Karen Kee- simply they niremen for cause because depravity of ton involved mind and that general objections to the death voiced outrageously a result thereof it was or reli- expressed or conscientious or wantonly vile and inhuman. [Section gious scruples against its infliction. 565.012.2(7)] 522, Id. at 1777. The Court S.Ct. The on the court also instructed the noted, however, its decision did following mitigating circumstances: prevent of a death sentence the execution par- 1. Whether Karen Keeton was a where for made veniremen excluded cause ticipant the defendant’s conduct ... “unmistakably clear to the act. consented automatically against imposition vote 2. Whether the defendant acted under regard punishment without extreme duress or substantial domination developed might be at the evidence that person. another 522, them.” Id. at trial the case before age 3. The defendant at the 21, 1777, n. n. 21. also 88 S.Ct. at See of the offense. time 38, 100 Texas, Adams v. 448 U.S. S.Ct. of any prior 4. ... absence crim- [t]he (1980); Georgia, Davis L.Ed.2d 581 pleas guilty inal convictions and U.S. L.Ed.2d S.Ct. pleas of nolo contendere of the defendant. (1976); Bishop, Maxwell (1970); Boulden 26 L.Ed.2d Holman, III. L.Ed.2d 433
A. parties agreement and the were person court a venire could understood that Appellant challenges the trial court’s ex- was, person not be excluded unless that cuse prospective jurors of fifteen cause to vote “irrevocably committed who expressed opposition conscientious *6 of penalty regardless the facts and of death the imposition penalty. the He might emerge in the circumstances that contends the excuse of five venire such questioned state course of the trial.” The persons violated the stan- constitutional juror individually: each Illinois, Witherspoon v. dards of 391 U.S. If, the facts 510, trial of the case 1770, during the (1968), 88 S.Ct. L.Ed.2d 776 that come forth as evi- voicing gen- they because were excused for under law the dence the are such objections penalty. Ap- eral to the death penalty, the death jury consider pellant could further contends court’s failure juror, consider the death you, as a to strictly Witherspoon adhere v. penalty? qualifying jury pre- Illinois standard application cluded the constitutional of Mis- any negative an- The follow state would penalty prevent statutes souri’s death venire by questioning swer whether arbitrary capricious jury use of discre- un- person the death sentence could assess addition, charges tion. In he the excuse of any der circumstance. con- persons fifteen venire violated his of the The fifteen trial court sustained rights impartial stitutional to a trial ground on challenges state’s for cause
jury
of a
of the com-
composed
cross-section
irrevocably com-
persons
were
venire
munity.
the death
imposing
mitted
Illinois,
Appellant
supra, prospec-
regardless
In
circumstances.
Witherspoon v.
appeal
that five
jurors
pun-
tive
time
generally opposed
claims for the first
equivo-
persons were
excluded
from of these
venire
ishment had been
for cause
fifteen
questions. The
response
and sen-
cal in
to the state’s
jury that convicted defendant
of the five venire
pertinent
The
him to death.
Court held that:
examination
tenced
persons
question
ap-
they
in the
contained
can follow the law.
The exclusion
pendix.
persons
those venire
who have stated unam
cannot,
any
under
cir
biguously
they
questions
Review of the
and answers
cumstances,
a certain
consider
indicates each of the five excused venire
violate
permissible under the law does not
persons
“unmistakably
made it
clear” that
representative
requirements of
cross-section
impose
would not
the sixth and fourteenth
amendments.
Appellant
under
circumstances.
582,
Wainwright, 578 F.2d
Spenkellink v.
presents
response Harry Bumgarner
Cir.1978),
denied,
(5th
rt.
U.S.
ce
1548,
equivocal.
response,
as the most
“I
His
976,
(1979).
a prima facie case
published
could be
the
a
on a
number of studies were
significant
state has
impanel
jurors
a
interest
in
are not
theory
“death-qualified”
ing only
jurors
those
impartial
guilt.3
who have stated that
on the issue of
These stu-
Personality;
prima
Application
Psychologi-
2.
An
The three elements that
a
establish
(1)
persons
Measuring Techniques
facie violation are:
the
excluded
to the Problem of
cal
“
734;
Bronson,
Bias,
from
service
Jury
must be members of a ‘dis-
1968 Wisc.L.Rev.
E.
group
community”; (2)
rep-
tinctive’
in the
the
Representa-
the
and
On
Conviction-Proneness
group
resentation of this
in venires is “not fair
Jury: An Em-
tiveness of the Death-Qualiñed
and
in
reasonable
relation to the number of
Veniremen,
pirical Study
of Colorado
persons
community”;
such
underrepresentation
in the
and
(1970);
Goldberg,
Toward
U.Colo.L.Rev.
F.
“systematic
is due to a
Witherspoon: Capital Scruples,
Expansion of
group
jury-selection
exclusion of the
process.”
364,
in the
Bias,
Jury
Psychological
Data to
and Use
Missouri,
Duren v.
Law,
Presumptions
Raise
in the
5 Harv. Civil
664, 668,
supra. Mercer, August prior 1978. ecuting In the en other bitch on the cer We T Keeton’s [*****] trouble I’m in says attorney are back at the location state’s going Campbell: body opening told do B. today rape.’ it, statement dumped, jury: T wouldn’t but Bruce Miller if I’d where killed and Mer- pros- [*] Kar- stipulation and reference pellant mony was inadmissible testify ting statement defendant, choose between testify ment were Appellant now about her contends entering prosecutor that Deborah improper having Deborah Middleton argues he was forced Deborah Middleton’s charges rape charge against into the because there and therefore state Middleton error to stipulation. opening opening permit- nowas state- testi- Ap- it.’ talked me out of referred person defendant evidence that the Campbell was come here and to in his statement to John Deborah Middleton will Middleton, stipulation you because the testify. will tell Deborah Deborah Middleton to con- agreeing July defendant was forced into George that she first met Mercer 26th, 1978, proof separate and distinct an occur- stituted of a basically *8 trial, on was not happened rence in which she later crime for which defendant upon attack brought against George charges Mercer and because it constituted Juries, by Imposed Jury" 58 victions Death-Qualified Determination on Qualified Process, Guilt (1973) (reporting (1971); Har- 1971 Harv.L.Rev. M. Rok- Cornell L.Rev. 1176 84 567 Zeisel, McLellan, Dogmatism data); on Juror each & Poll H. Some Data D. Death ris Penalty: Reinterpretation Duquesne Capital Attitudes Punishment A of the Toward Data, (1969-70); published Duquesne by in Criminal Poll for Studies 125 the Center L.Rev. Justice, Chicago White, University Invalidity School. Law W. of Con- The Constitutional had not been C. defendant’s character which placed in issue. court sustained defend- Prior to trial the cover suppress a mattress ant’s motion to Campbell’s testimo view of John during search de- seized a warrantless ny concerning the defendant’s statement During cross-examina- fendant’s residence. dumping body, after Debo Karen Keeton’s defendant, tion of the state asked: testimony, rah limited to the Middleton’s upstairs You were aware that in the bringing charge against defend rape of a there was a of that house that bedroom prior August 31, have ant human that was covered with mattress been admissible. Therefore the trial court feces— prosecuting permitting did not err in a mis- requested objected Defendant attorney opening refer in his to this suppress motion to ground trial on the his permitting stipulation statement or in sus- had been the feces covered mattress testimony. in lieu of her over- The court by tained the trial court. killing sought Defendant denied the objection and motion for mistrial ruled the portray Campbell John as a liar. It was independent noting was evidence that there necessary for the state establish defend- that would autho- search and seizure motive, ant’s John and to corroborate charges Appellant now question. rize the Campbell’s testimony. Defendant’s state- overruling the court for error to the trial ment Campbell to John was relevant as argues that this objection motion. He killing evidence of his motive in Karen Kee- in- “clearly calculated to statement was ton; he killed her to avoid detection of the against passion flame the of the rape. testimony Deborah Middleton’s mentioning of an in- by defendant matters explained would have defendant’s state- herently abhorrent nature.” ment and John would have corroborated illegal by an Evidence obtained Campbell’s testimony sought state —the is not admissible search and seizure prove 17-year-old there was in fact a If, how in a criminal case. the defendant girl charges against brought rape who had knowledge or ever, same gains the the state prior defendant to the murder of Karen may independent source evidence from an go into stipulation Keeton. The did not Wilkerson, 349 become admissible. State leading disposi- facts charges or the (1942). Mo. 159 S.W.2d charges. tion those independent is evidence There admissibility stipula support cover to suppressed mattress tion is not affected the lack of direct of the defendant the cross-examination establishing evidence that Deborah Middle previously Campbell had John this matter. girl ton was the referred to he of the murder testified that at the time his Campbell. statement John Evidence could relevant, need not conclusive. It is over It was all smell the human waste. logically prove relevant if it tends to a fact sheets, her kind of sheets and and the issue or corroborates relevant evidence the same time came off of the bed principal which bears on the issue. State Lee, (Mo. 1977), pulled her .... banc vacated S.W.2d rendered
relevant evidence on the issue of motive on other 58 L.Ed.2d tend to constitute grounds, inadmissible proof because it Nor is this otherwise of another might crime or also yes. A. You could see Q. [******] Could you see anything the human on the bed? waste, designed to was not question discredit defendant’s character. See State The state’s taken the had Holt, (Mo. jury. banc Defendant inflame S.W.2d Keeton. Karen Richardson, strangling 1980); stand and denied State v. S.W.2d attempted the state (Mo. 1974). On cross-examination *9 10 (3)Whether the in sentence of death getting
and was successful disproportionate pen- excessive or to the given admit that an excuse to some- he had cases, imposed alty considering in similar bed, thereby one for the feces on the ac- both the the defendant. crime and presence corroborating and knowledging its The Campbell’s testimony. John court The record in this case demonstrates that permitted question. properly the state’s George Mercer’s death sentence not passion,
imposed
of
under
the influence
arbitrary
factor.
prejudice
any
or
other
IV.
aggra
statutory
as
found
565.014.1, requires
this Court
Section
“defendant,
vating
that
imposed.
review a
of death when
sentence
agent
Stephen
employee
an
or
of
Gard
as
provides:
Section 565.014.3
direction,
Karen
ner and
his
murdered
sentence,
With
the su-
regard
Keeton”,
565.012.2(6),
and that
mur
§
preme court shall determine:
depravity
of
Keeton involved
of
der
Karen
(1)
death was
Whether
sentence of
it
and
as a result
thereof
mind
that
imposed
passion,
inhuman,
wantonly
under
the influence of
vile and
outrageously or
factor;
prejudice,
arbitrary
supports
any
565.012.2(7).4
or
other
The evidence
§
jury’s findings.5
(2)
supports
Keeton,
Whether
the evidence
a total
Defendant
forced Karen
jury’s
judge’s finding
statutory
of a
a sawed-
stranger,
or
into a bedroom aided
shotgun.
enumerated
to show
aggravating
circumstance as
off
There
evidence
Karen,
565.012;
with
that he had sex
section
565.012.2(7)
provides:
“cases
lie at the core”
This
4.
subsection
permit it to
a “catch all”
and to not
become
(7)
outrageously or wan-
The offense was
tonly vile,
subsection.
it
horrible or inhuman in that
in-
mind;
torture,
depravity
volved
jury’s
Although
supports the
the evidence
153,
5.
Gregg Georgia,
428
96
v.
U.S.
S.Ct.
circumstances,
findings
aggravating
both
2909,
(1976),
petitioner
49
859
at-
L.Ed.2d
Georgia,
whose death
Georgia aggravating
this Court notes
circumstance
tacked the
pattern
pen-
for Mis-
imposition
serves
scheme
authorized
souri,
alty
“outrageously or
if the murder was
wan-
vile,
tonly
it
horrible or inhuman in that
in-
statutory aggravating
two or more
Where
torture,
mind,
aggra-
depravity of
volved
jury,
by
*
the fail-
found
circumstances are
contending
battery
vated
the victim”
*
*
not taint
does
ure
one circumstance
capital punishment could
was so broad that
proceedings
the other
so as to invalidate
imposed
any
such case. The Court denied
and the sen-
circumstance found
challenge stating:
tence of
based thereon.
is,
course, arguable
any
It
murder
State,
458,
796,
Burger v.
245 Ga.
265 S.E.2d
depravity
aggravated
involves
mind or an
denied,
988,
(1980),
446
100 S.Ct.
800
U.S.
cert.
battery.
language
not be
But this
need
con-
2975,
(1980).
also Hamil
64
847
See
L.Ed.2d
way,
reason
strued in this
and there is no
264,
(1980),
State,
173
271 S.E.2d
ton v.
246 Ga.
Georgia
Supreme
assume that the
Court of
-
900,
-,
denied,
S.Ct.
66
cert.
U.S.
101
adopt
open-ended
will
such an
construction.
State,
(1981);
246 Ga.
L.Ed.2d 829
Brooks v.
201,
Id. at
at 2938.
96 S.Ct.
262,
State,
(1980);
271
172
Collins
S.E.2d
Georgia
recog
Supreme
Thereafter the
Court
denied,
261,
(1980), cert.
246 Ga.
H ty imposed for more. He under stated his intention to return the law effective compelled gunpoint perform her at oral 26, capital May 1977. The records of all sex David Gee while others watched. imposed after cases in which sentence was well-being expressed fear for her date, She pursuant the effective accumulated When Campbell. Gee and John David 565.014.6, Those have been reviewed. § to “kill told defendant Steve Gardner imprison- life cases in which both death and bitch”, agreed grabbed her he to do so. He jury, and which ment were submitted to the her; throat, choking about he struck con- appeal affirmed on are have been fists; having her finally, with his after cases, 565.014.5: sidered as similar State friend pulse, check her he succeeded Mitchell, (Mo. 1981); 223 banc v. 611 S.W.2d strangling her. After this he loaded the Williams, (Mo. banc 611 26 State v. S.W.2d truck, body country, in a drove to the and (Mo. 1981); Royal, 610 946 v. S.W.2d State dumped bridge. body beneath a Borden, 1981); 88 banc v. 605 S.W.2d State Downs, (Mo. 1980); v. 593 banc and State Godfrey Georgia, support (Mo.1980). These cases S.W.2d (1980), 100 S.Ct. L.Ed.2d this penalty in affirmance of the death Supreme Court held that the Georgia Court case; to death for the defendant’s sentence apply had failed to a constitutional con excessive or murder of Karen Keeton is not phrase “outrageously struction of the imposed in vile, disproportionate wantonly horrible or inhuman in that and the considering the crime similar cases [they] depravity involved ... of mind defendant. because the crimes could defendants judgment is affirmed. be said to have reflected consciousness
materially ‘depraved’ more that of than DONNELLY, RENDLEN, WELLIYER any person guilty of murder. His victims MORGAN, JJ., concur. were killed instantaneously. They were BARDGETT, J., part concurs C. family causing members of his who were part separate opinion filed. dissents in him extreme Shortly emotional trauma. SEILER, J., separate dissent- dissents in killings, acknowledged
after his ing opinion filed. responsibility and the heinous nature of
his crimes. 26, 1981. Date of execution set for June Id. 100 S.Ct. 1767. This case is unlike
Godfrey Georgia, supra. “Depravity APPENDIX mind” is demonstrated in this case the Harry Bumgarner: killing preceded by mode of extended sexu BY MR. HAMILTON “EXAMINATION al and psychological abuse of the victim. (Prosecutor): State, Hance v. See Ga. S.E.2d - charge of Q. is a Bumgarner, Mr. (1980), denied, 345—46 cert. U.S. murder, it does which means capital -, (1980). L.Ed.2d punishment, possibility capital carry the legal The enumerated have been errors My inquiry is direct- or the death sentence. stated, the state- denied for reasons is toward your attitude ed to find out what prepared ment of evidence from the record If, during the trial capital punishment. factually substantiates the verdict. Section were and circumstances this case the facts supports the 565.014.7. The evidence also con- jury could developed that in fact the finding you, as a capital punishment, sider and the sentence of a rational trier pos- capital punishment as juror, consider beyond fact a reasonable doubt. Jackson sible alternative? Virginia, L.Ed.2d 560 A. I think so. don’t op- religiously Q. morally you This murder case Are is the first penal- punishment? appeal posed decided on in which the death
Q. No how violent the crime matter *11 be, against that as might you A. Yes. would be punishment, am I correct? Q. bring And back you you feel couldn’t a sentence of—the death sentence under I taking a life. just believe in A. I don’t any circumstances? just sorry. don’t. I’m
A. I don’t think so. [******] Q. ag- regardless So of how severe Counsel): Q. (By Mr. Lozano —Defense are, gravated you don’t circumstances never would you say you that —if—can feel you bring that could back a death under cir- capital punishment consider penalty? cumstances whatsoever? ital tal tion tude as (Prosecutor): death bility can trial are Rosalie M. Q. Q. Basically I am A. “EXAMINATION Q. punishment— murder, consider as [*] [******] is: —would penalty. Mrs. I don’t believe I could.” come out to the death such that the capital If Delange: [*] Delange, which carries with it the the facts you, punishment, during the [*] possible this is as a member of that interested penalty, BY MR. HAMILTON jury, under [*] and circumstances alternative, capi- a charge course of which is the [*] your my of [*] possi- ques- atti- law, cap- jury can possible alternative? this trial are such that tion is about penalty. that tal (Prosecutor): murder, Elston Dalton: A. Q. “EXAMINATION Q. punishment— jury, [******] —the death penalty, Mr. I will say that.” which carries If the facts and consider as Dalton, be your willing this is a attitude penalty. BY to consider you, as a a under possibility MR. HAMILTON charge of alternative as And to the death the law the member that my of capital ques- capi- as a sub- possibil- that like jury, give Well, consideration to that much A. I never did ity? ject. punishment. opposed
A. I am sir, you the, are Q. you ask Let me un- you would be basically telling us that morally Q. you basically Okay, then are verdict? willing return a death against capital punishment religiously punishment? as a I would sir. A. I believe say A. I would that. to, un- willing or be Q. you Would regard- Q. basically, regardless you to, Are such that verdict willing return such are, you are less of what the circumstances evidence is? of what the against capital punishment? you. A. I didn’t understand thought myself as always A. I have you sir, Q. you saying, Are against capital punishment. I don’t being death, a death a result wouldn’t return know, way, really you put when evi- what the result, regardless my could alter deci- maybe circumstances dence is? sion, say have to really but I think I would Well, said, believe I don’t A. as I I’m it. penalty. basically Q. saying Am I correct in is such that opposition Q. Basically the vote for you wouldn’t any circum- it under wouldn’t you return regardless? stances, is that correct? say think, have to right, A. I I would it.” about I feel Yeah, way A. that’s that. Yes, A. I am. Bishop: Juanita Q. you religiously morally op- Are HAMILTON “EXAMINATION BY MR. posed to it? (Prosecutor): Well, know, opin- just my A. don’t its I Q. charge capi- Bishop, Mrs. this is a any- religion or really ion. It’s not from murder, poten- tal with it the and it carries thing like that. penalty, tial of the death the death sen- you Q. you feel But it’s such Basically your tence. I am interested in *12 bring back the death would not capital punishment. attitude as to any under circumstances? brought If the facts and circumstances A. I don’t think I would. during out the trial are such it, penalty, justify justify the death would So, ag- Q. regardless of how severe you giving penalty? consider is, feelings gravated your the situation it’s you impose could not the death sen- (Pause) A. I don’t think so. tence? Q. you your Do feel that inclination is A. I don’t think so. morally religiously you and don’t feel
it. you any case? A. could Yes, bring I don’t back a sentence of death in feel like I’d be a judge of precise. think so. We need to be a little THE COURT: [******] Ma’am, you say you don’t more vote for Yes. any time no matter what the facts? back the death penalty situation, is that correct? Q. A. Yes. Q. [******] Is (By Mr. Lozano —Defense You don’t feel your position capital punishment you regardless could ever you could Counsel) case at of the never bring fense ings? out couldn’t do it. That’s MRS. CHOATE: Q. [death [******] Counsel) (Examination by Mr. Fiorella —De- just my penalty] own .... Would personal feelings; because Well, I you rule that of couldn’t, your I feel- just no. say A. I’d it is.” corporal punishment? A. You mean Priscilla Choate: Q. Yes. “EXAMINATION BY MR. HAMILTON Yeah, just A. I can’t I believe I would. (Prosecutor): go along with it. Choate, Q. charge capi- of Mrs. this is a juror, tal circumstances that come forth as evidence punishment. capital punishment, during the trial of the case the facts and are such that consider the death penalty, bility of the death A. Q. Basically you murder, ¤ consider the death I don’t believe in as to what [*] under the law the I am interested in [*] carries with it the your sentence, capital punishment. my question [*] attitude is toward penalty? or of [*] inquiring you, capital is: [*] possi- could as a If, the reasons stated penalty on the record here and failed to so penalty but allow dissent from the affirmance seek the death part to obtain the death ment of upon I concur in the affirmance BARDGETT, days the state’s of its decision to do so. dissenting conviction notify Chief notifying the state to infra, penalty from a Justice, concurring Court part. anew, capital vacate this Court of its intent again proceed of the death If the state murder. would, for this death sentence within judg- I Q. you opposed punish- parole Are for 50 capital imprisonment of life without ment? years imposed. should be regardless upheld is to be proceedings
The
in a
murder case
“aggravating
whether
circumstance”
are
affects only
noted,
bifurcated and error which
by the
supra,
supported
evidence
punishment aspect
of this crime war-
whether
cir-
perhaps regardless
punishment,
here,
new trial
as to
can,
rants a
as
under the evidence
cumstance
provided in
565.006.3 RSMo 1977.
rationally regarded
“aggravating.”
my
sup-
opinion,
In
evidence fails to
evidentiary
amply
facts have been
port
finding
“an
defendant was
support
clearly
stated and
a verdict of
agent
employee
Stephen
Gardner.”
But,
when
guilty of
murder.
is
employee
There
no evidence he was an
death,
I
is
then
believe strict
evidence,
opin-
is no
in my
Gardner. There
compliance
require-
with constitutional
ion, that
the defendant killed
deceased
authorizing
ments and those statutes
fact,
told
because Gardner
him to.
penalty mandatory.
Death penalty
position
keep
killed her
state’s
that he
cases are different from other cases for that
rape
as the
prosecuting
her from
him
simple
correctable,
It is
reason —death.
girl
other
had done.
sentences,
as are other
and therefore strict
*13
I have
mur-
perceive just
tried to
how a
procedure
necessary.
adherence to
is
or
der such
this is worsened
the defend-
as
fact
mercy
that the
no
defendant showed
to
person
ant a
heinous
if he
the
more
killed
appears
the deceased
to
and
have commit-
agent
employee
deceased as an
or
of anoth-
just
ted
about as
act
one could
evil an
as
do
understanding
er.
I
no difficulty
have
in
law-abiding
jur-
does
justify
not
citizens —
aggravating
pro-
# 4
circumstance
which
ors,
judges
lawyers
straying
and
—from
killing
for
profit
vides
for
for himself or
gowe
strictly
proceedings
from
correct
as
part
another
the
of #
and
first
6 which
legal-
deciding
task
to
about the
of
whether
provides
the “offender caused or di-
ly kill him.
capital
rected
to
murder.”
another
commit
I agree
part
Judge
with
I of
Seiler’s
Incorpo-
to
Murder
Number 4 recalls mind
juror
response to
dissent
reference the
of
of
yesteryear
part
rated
and the first
questions
Bumgarner
relating
to
to his abil-
recognizes
person
# 6
if a
causes or
ity
penalty.
to consider the death
For the
murder,
directs another to commit
juror’s
reasons stated there the
answers did
as
surely
guilty
the
is
least
as
director
at
justify
not
his
for
under
removal
cause
I
what the ra-
the actor. But
cannot see
Illinois,
510,
Witherspoon v.
391
88
U.S.
employee
or
tionale when the actor is the
1770,
(1968).
S.Ct.
L.Ed.2d
That
agent.
does it
the act more
How
make
goes
error
to
the death
the
heinous
more evil if
or the defendant
therefore,
system,
under
bifurcated
did
the
being directed
another as
defendant
trial
prejudice
guilt part
not
the
of the
but
I am
agent
the
of another?
employee
aspect
did
of
prejudice
the
the
here,
saying
circumstance submitted
the
Witherspoon,
case
stated in
for
reasons
actor,
“aggra-
be
as
could never
an
supra.
vating
the facts of
circumstance” but under
part
opinion and
principal
Part IV of the
see
here
any
this case I do not
rational basis
Seiler, J.,
III
addresses the
of the dissent of
exchange
saying
for
between
the verbal
aggravating
statutory
of the
circum-
issue
and Gardner made defendant’s
appears
principal
me that the
stances.
It
my
aggravated
In
acts more
or heinous.
opinion
was sufficient evi-
holds that there
opinion, the evidence was insufficient
“defendant, as an
to find
dence
aggravating
support
giving
circum-
agent
employee
Stephen
Gardner
#
stance
6.
adopt
Geor-
Furthermore,
I would not
direction,
Keeton,”
murdered Karen
his
principal
in footnote
565.012.2(6). However,
appears
gia rule noted
it also
evi-
must be
my opinion, there
opinion.
opinion inferen-
perhaps
principal
each
support
the submission
Georgia as set forth
dence
adopts the rule in
tially
found
circumstance
statutory aggravating
may
in
mean
footnote
which
by the
requirement has been reiterated
This
pen-
upon
the death
Holman,
which
394 U.S.
Court in Boulden
based,
alty
part,
in whole or in
1138, 1140,
to
with a new
punishment
trial on
tablished,
prosecution
especially since the
pursuant
565.006.3,
to
whereupon the
challenges
peremptory
still had five or six
cause would be remanded to circuit court
juror
available
when selec-
to excuse that
for a new trial
punishment only.
on
completed.”
tion of
the
SEILER, Judge, dissenting.
Bumgarner
If
was im-
I attorney venireman Bum- prosecuting exchange garner below. This are set forth agree I cannot principal opin with the basis for provide does not a constitutional ion’s appellant’s objection treatment of to Bumgarner from the for cause of exclusion striking the for cause of venireman Bum- jury service. garner Witherspoon Illinois, under U.S. S.Ct. L.Ed.2d 776 charge of “Q. Bumgarner, Mr. this is a
(1968). The principal opinion found that
murder,
it
capital
which means
Bumgarner
“unmistakably
had made it
capital
carry
possibility
does
clear”
impose
would not
punishment, or the death sentence.
penalty under any circumstance.
In With
find out
My inquiry is directed to
erspoon,
supra at 516 n.
Unless an venireman states circumstanc- this case the facts and ously that he automatically would vote in fact developed es were against imposition capital punish- punish- capital jury could consider ment no might ment, juror, matter con- you, what the trial as a reveal, simply possi- cannot be assumed that as a capital sider position.” that is his ble alternative? punish- the imposition capital
IA. don’t think so. ... it simply ment cannot be assumed Q. you religiously op- position.” (emphasis Are that that his morally sup-
posed punishment? plied) A. Yes. U.S. 516 n. at 1774. S.Ct. Q. you And you bring feel couldn’t Bumgarner’s subject was view on the left back a sentence death sen- of—the hanging air, in the unresolved. The With- any tence under circumstances? erspoon test as to was not satisfied Bum- A. I don’t think so. garner. prosecutor get If the not does an Q. regardless ag- unequivocal response, So severe and then of how he is entitled
gravated are, you have venireman dismissed for cause. you bring Texas, 38, 50, don’t feel that could back Cf. Adams v. penalty? 2528-29, death L.Ed.2d 581 Supreme which the Court said: A. I don’t believe I could. nervousness, “[Njeither MR. you, HAMILTON: Thank sir. I emotional in- volvement, questions.” have no other inability deny nor con- firm being effect whatsoever [that principal opinion The on relies State presented option give with the Pride, (Mo.App.1978) S.W.2d prospective would have for the proposition response “I juror] equivalent unwillingness to an don’t equivocal think so” is not in its con- inability part jurors on the text; rather, that it is “common vernacular follow the and obey court’s instructions express negative.” I would first oaths, regardless feelings their their point out that Pride was not mur- (emphasis penalty.” sup- about the death der case in which the death could plied). imposed. case, Pride was an assault where black man. wife of II one of the veniremen “an unpleas- had had fifteen chal sustaining the issue of On ant encounter with in the past.” blacks ground that lenges for cause on the When asked if that would affect him in irrevocably committed persons venire were case, sitting in replied, venireman “I penalty regard against imposing so, really thought don’t think but I I would *15 circumstances, opin principal less of the mention it.” This disclaimer is more em- reverse conviction ion holds will not phatic than that the case before us. indicating on basis of studies that Second, agree while I when would that impartial qualified” jurors are not “death someone says may “I don’t think so” he to guilt. issue of In addition express intend to the negative, may he also by cited defendant and the studies studies best, mean that he is not At it is sure. Hovey of Alame Superior cited in Court equivocal, ambiguous, and uncertain. Bum- da 616 P.2d County, 28 Cal.3d garner say did not he would not be 1980) Grigsby (banc Cal.Rptr. 128 able to decide the issues on the basis of the (E.D.Ark.), aff’d, F.Supp. Mabry, though opposed gen- law and even evidence 1980), should (8th be F.2d 525 cir. there erally to We capital punishment. are talk- White, Death-Qualified Juries: The added ing by judicial about life taking defendant’s Argument Reexam circumstances, Prosecution-Proneness order. it is such not the ined, and Ober trial 41 U.Pitt.L.Rev. proper duty or function of the court or er, Disqualification of Jurors Scru “interpret” phrase by this court to such Does resolving Constitute ples Against Capital the doubt in favor of the state Punishment Guilt?, when a is at and the of man’s life stake United of Fair Trial on Issue Denial Supreme States Court has declared that author latter Tex.L.Rev. predicament well: the defendant’s unambiguous- “Unless a venireman states states charged of- ly automatically would vote I to be with a “Were impartial make an could nevertheless ty but fense, I greatly prefer guilt. should to have the decision as to excluding This error in my guilt issue of by or innocence tried jurors prospective who were not shown to courthouse, first twelve people pass deci- incapable making impartial of an questions by prosecution no asked or de- guilt requires sion as or innocence fense, jury qualified upon than the cause be reversed and remanded. Oberer,
death supra sentence.” at 545. about The studies mentioned earlier (original White, emphasis). supra at qualified juries being less than neu- death “If, Supreme states: as the Court has indi- guilt respect tral with confirm what law- cated, punish- is a conclusion that death yers experience already trial with broad ment pun- different kind from all other believe: it is easier to obtain a conviction of ishments society has committed our objec- jury some sort with a which has no providing ideal of fair proce- and rational just penalty,1 tions to the death as it dures fully safeguard which will the rights easier to a verdict in obtain some amount capital defendants, then examination of damage plaintiff for the in a suit with a the relevant data should lead to the conclu- up only made who have no those sion that qualified jury, the death as it objection awarding large amounts of presently exists, should be eliminated from damages. system justice.” our prosecu- permits present procedure Our tors, filing murder merely by Constitution, I, Under the Missouri Art. convic- qualified, charge, to obtain a 18(a), is entitled to trial an though they promptly even prone jury, tion impartial jury. right. This is an absolute upon conviction waive the There qualification exceptions are no to over- guilt.2 powerful This incentive it. The state is not entitled to the death we restrict if eliminated charge would be penalty against this defendant aas matter along the lines here voir dire examination right. All it is entitled to is a a more provide suggested. It also will consider penalty, assuming guilt impartial jury. has been determined. I do not believe challenges for cause at the outset of the Ill trial are valid prospective juror unless the opin- disagree principal I with the further declares that his capital punish- views on supported holding ion’s the evidence ment are prevent such as would him from cir- finding aggravating both jury’s making impartial decision as to defend- there cumstances. I do not believe guilt. ant’s It does not persons follow that support was sufficient evidence opposed to the death penalty necessarily are cir- first jury’s finding of the thereby unable impartial to make an deci- the vic- killed cumstance —that defendant sion guilt. as to defendant’s But that was of Gardner. “agent employee” tim as the never determined prospective here —the 565.012.3(6), 19783 lists as RSMo Section
jurors simply were excluded because *16 of- circumstance that “The aggravating an would not vote for the penalty. So capital murder as an fender ... committed up defendant jury wound with a which had person.” agent employee of another or no scruples against penalty, the death that defendant is no evidence Since there cry which is a having jury far from a with Gardner, we must as- employee an of was some members oppose penal- who the death study 1981), (Mo., 1. One 1968 concluded that the odds were 612 782 both from Jackson S.W.2d twenty-four jurors filing scruples County, prosecutor to one that without the in each case after against penalty obtaining likely charge the death were more than a death a qualified murder scrupled jurors Zeisel, guilty. jury, the to vote H. imme- waived the death Capital guilty diately obtaining Some Data on Juror Attitudes on the Towards after a verdict (1968). guilt stage Punishment 28-29 or innocence of the trial. example, Strickland, indicated, statutory 2. For in State v. cita- 609 3.Unless otherwise all (Mo. 1980) Hall, S.W.2d 392 banc and State v. tions are to RSMo 1978. argue jury ag-
state to submit and the by supported not gravating circumstances jury sume the found defendant was an that legislature and this agent evidence.4 The Dictionary of Black’s Law the Gardner. (5th 1979) as agent required aggravating “A that properly ed. defines court him, person act for by jury authorized another to consider which the is to one with business.” See intrusted another’s is determining whether Stussie, Pagliara ex v. 549 S.W.2d State rel. by supported warranted be evidence. Black’s, supra, 903 (Mo.App.1977). also finding aggravating If the of the first acts for or agent defines an as “One who evi unsupported under the circumstance is him; place by authority of from another is, dence, sentence as I then the contend substitute, appointed by principal deputy, or more When one of death cannot stand. power principal things with to do the which been im have Tieman, aggravating circumstances may v. do.” Mahler 550 S.W.2d Cf. to, jury by, or found properly submitted (Mo.App.1977): agency “A valid then, ag other may (or court), be where of trial even if found the conduct person legitimately parties manifests the consent of one were gravating circumstances act on his found, another that other shall for sen be remanded case must subject behalf and be to his control and 565.014.5(2). The reason for tencing, § so consent the other to act.” See also simple: “[Rjegardless of the existence is (Second) Agency Restatement § we aggravating factors authorized other ag guard against unauthorized must 565.012.3(6) The part of directed § equation into going gravating factor capital murder one who commits weighing might scales tip which agent employee or another meant Elledge v. death.” concept process in favor of accepted for someone who fits the (Fla.1977); State, See agent employee. There is no evidence 346 So.2d 1278, 1282 State, The only that such was the situation here. 368 So.2d also Menendez v. upon jury evidence which could have way determine (Fla.1979). is no There finding based was an its defendant as to have decided jury would what agent of was asked Gardner that defendant al improperly been had do with Keeton and Gardner what to Karen aggravating circum as an lowed consider Gardner “Kill There is replied, the bitch.” acting as Gard stance no evidence to demonstrate that Gardner free to may have felt agent. ner’s The had defendant. authority control over reprehensible with Gardner’s tar defendant defendant, The that Gardner said to fact For other his own. in addition to conduct bitch”, defendant’s “Kill the followed have decided which the courts cases in victim, strangling of the does not establish aggravating circum or more failure one relationship. It does no a cause and effect for reversal cause stances were ac- more than show the two State, sentence, 382 So.2d see Bufford agen- of an cord. further evidence Without den., 382 cert. (Ala.Ct.Crim.App.1980), cy relationship between de- Gardner Cherry, 298 (Ala.1980); State So.2d fendant, circumstance aggravating first den., (1979), cert. N.C. S.E.2d upheld. cannot be 64 L.Ed.2d appro- statute, 565.012.1(1), Zant, and the 631 F.2d Stephens (1980). See also instruction, 15.48, re- priate MAI —CR2d court 1980) in (5th Cir. circum- those quire observed: be by the sub- supported stances evidence reviewing court impossible “It It mitted for the to consider. *17 ver- satisfactorily the permit the determine prejudicial most to unfair and urged jury the to consider was jury So prosecutor, arguing for the the dence.” 4. The to the aggravating “agent employee” circumstance penalty, told defendant death said that Gardner penalty. How victim, readily justification death for the went kill as a the that defendant they this, not do so? along jury did be said should can it with and that “[rjemember piece important of evi- that as an
19
supplied).
I
(emphasis
rely
State,
on the fifth
Gates
244
Georgia in this
nothing peculiar about
re-
(1979),
Ga.
S.E.2d
cert. den.
we
gard.
peculiarity
The
is that
are
U.S.
S.Ct.
L.Ed.2d
does.
Georgia
alone
In
proposing
hold as
(1980). Gates, however, did not address
in the
my opinion,
reasoning found
cited
how
aggravating
which
circumstance
Florida,
Alabama,
from
North Caroli-
cases
improperly
to,
had been
submitted
or con- na, the Fifth
in the other cases
Circuit
by,
jury may
sidered
affect the decision-
by
goes
discussed below
unanswered
both
making process
jury;
merely
it
opinion.
Georgia
principal
cases and the
that,
makes
unsupported
conclusion
circum-
aggravating
one
statutory aggra-
“Where two or more
Where
sentencing jury is
vating
stances found
a death
circumstances are found
analogous
one
jury,
improper, the
the failure of one
does
situation
circumstance
has been
guilty
general verdict
proceedings
not so taint
as to invali- where a
alternative
on
by jury
instructed
aggravating
date
returned
the other
circumstance
conviction,
not all of
but
one
found and the sentence of death based
theories
upon an
be rested
guilt to
permitted
thereon.”
Georgia Supreme
conclusion,
reversed the
arriving
When the
Court
5.
In
court
Gates
improp-
State,
because
Gregg
one count
death
erly
on
cited
S.E.2d
Ga.
circumstances,
(1974),
submitted
aff'd sub nom. 428
the other count
on
Gregg,
affirmed
principal herein, opinion liquor license of Modene Gatewood and Edd C. Chilton IV by supervisor liquor
was revoked (1) control grounds: on two unlawful sell- of. the agree avowal While I with the ing possession for resale and unlawful not and opinion we should principal refilled containers. Our review showed a 565.012.2(7) to become permit will not support lack of substantial evidence cir- “catch all” subsection ground, although first was substantial there cumstances, we dis- agree that I do not support ground. evidence to second 565.014.2(3) to charge duty our under § The license revocation was reversed and the of death “[wjhether the sentence determine cause remanded for reconsideration pen- disproportionate is excessive liquor supervisor, for the reason that restricting alty imposed in similar cases” strength license was revoked “on the of two which both to cases in our consideration violations, one of has which been found sub- imprisonment were and life unsupported”. supervisor was directed have been mitted to the to reconsider the matter assessment of is too limited appeal. affirmed on This single if penalty, any, on the basis of the all scope. eliminates from consideration It charge supported by the evidence. state waived cases in which the imprison- which life penalty, all cases in In the was evident Chilton case it taken, all given appeal no supervisor ment was had revoked the license on which life us in pending before grounds, two but one was bad. It could not cases all cases imprisonment given, be determined what he would have done *19 Baldus, al., Identifying in et Com- As said A of Death: paratively Excessive Sentences charged but the capital murder was which 1, Quantitative Approach, 33 Stan.L.Rev. of a lesser guilty defendant found (1980), exam- 20-21 All these capital crime than murder. jury convicted
ples are cases in which the efficacy procedure of the review “The not to im- chose defendant of murder but ‘similar’ the number of depends also purpose of pose penalty. the death comparison in the and the cases used is to review of the death appellate the information available completeness of or arbi- against random serve “as a check In other concerning those other cases. penalty.” death trary imposition of the pro- words, efficacy apparent 153, 96 Gregg Georgia, 428 U.S. S.Ct. v. comparative excessiveness tection (1976). It is our sol- 49 L.Ed.2d theoret- review can proportionality guarantee my opinion, emn in duty, misleading. may ically provide mitigating circum- similar death defendants sentenced Whether sentence bring stances do not about a death depends al- really protection receive that in anoth- imprisonment in one case and life thoroughness and entirely upon the most Supreme Court er. The statute and the process.” accuracy of the actual review penalty be im- require cases that the death Texas, Jurek v. posed with an even hand. easy do so is no Realizing I do that to L.Ed.2d 929 nevertheless, task, principal opinion ar- Florida, (1976); Proffitt v. which the review no standard ticulates We are 49 L.Ed.2d how the cases was in this case or made proportionality review. required to make which a life opinion in mentioned in the Gregg Georgia, supra. v. affirmance given support sentence was capi- By “similar cases” is meant similar penalty. of the death murders, tal not limited to those where after capital We see murder ease one imprisonment both life were sub- death and killing was horrible or in which the another mitted to the and then affirmed on color word appeal, way whichever the case went on atrocious or whatever other punishment. defendant The evil deed is the murder in which the comes to mind and that, See, accompanied and what it and as well death. imprisonment, received life not defendant, Strickland, as the is what must be looked at 609 S.W.2d example, for State v. comparing what one defendant received (Mo. 1980) (one shot in the banc victim capital under a murder head; room three other adjoining in an charge with what another received. The up and two of them were people were tied does capital fact that a murder defendant head; escaped when shot in the third get gets the death or a new fire, did not gun pointed to her head trial or that the state waived the death shotgun with a although she was later hit penalty in his case or that his case is still blast; v. penalty); State state waived mean that we pending before us does not 1980) Holmes, (Mo. banc 609 S.W.2d making compari- ignore can his case in our sixty-four (sixteen old victim stabbed year must, idea, accept we as we son. Once pick; state waived times with an ice cannot be inflicted Baskerville, No. penalty); v. State random, inconsistently, arbitrarily imprison- life pending this court on before into consider- necessarily then we must take including (multiple murders ment sentence about. capital ation all murders we know mother; boy was year-old boy seven and his special assistant We are furnished with a life). for his begged last to be killed and He is 565.014.6. purpose. Section (Mo. Mitchell, 611 S.W.2d In State capital of all cases to accumulate the record was 1981), year-old May banc imposed after which sentence another sentence, along with convicted, life says “sentence was 1977. The statute 61974, pending, Turner, No. (see mur- State imposed”. It is not limited murder sentence) of the imposed. life ders where death sentence employee,
owner of a tobacco store and his Missouri, Respondent, STATE aged 72 respectively. and 61 The murders were robbery. committed in the course of a BROOKS, Appellant. *20 Paul James Both victims received blows to the head instrument, with a blunt such as a beer No. 62495. bottle, ribs, both had fractured and both Missouri, Supreme Court of wounds,
received multiple apparently stab En Banc. from a broken beer victim bottle. One times; stabbed fifteen other June 1981.
stabbed five chest and times in the several Rehearing July Denied 1981. parts times in the abdomen and other body. Downs, (Mo. State v. 593 S.W.2d
1980), the defendant was convicted of the couple murder of a married eighteen year-old daughter,
their with a life
sentence. The defendant and others robbed couple store owned and shot
them each in the daughter head. When the approached
returned-from her classes and opened grabbed by door she was defend pulled
ant and another and into the store parents lay girl
where her dead. The fell to
her begged knees and for her life. The put gun to her head and shot
her.
It seems to me Justice that what Mr. Georgia,
White concluded in Furman v. 238, 313, 2726, 2764, 33 L.Ed.2d (1972) (concurring) remains the fact.
He said there that great is exacted with
“[t]he
infrequency even for the most atrocious meaningful
crimes and that there is no distinguishing
basis for the few cases imposed
which it is many from the cases
in which it is not.” outset,
As said at the I would reverse
remand for a new trial.