*1 606 paid un- seeking of taxes taxpayer refund
Harmonizing 139.031 with the adminis- § the va- contesting action in an appeal process, protest, der trative assessment Travers, assessment, con- 529 must Corp. lidity in Xerox v. S.W.2d of a tax or its Court procedure (Mo.banc 1975), described the established procedures 418 form to the recovering protest under paid for taxes 139.031.3
follows: long since been disbursed funds have (1) Any taxpayer desiring pay taxes their inability to recover taxpayers’ 139.031), (under and to protest under protest because of non paid under taxes thereunder, of the benefits avail himself statutory procedure compliance with the shall file his statement with the collector appeals before the pending their renders taxes. paying at the time of such See, ex moot.4 State Tax Commission State (2) filing ninety days Within after 676, 678 Shinnick, Myers v. 19 S.W.2d rel. action protest, he commence an shall Louis v. (Mo.1929); Lawyers’ Assn. St. court against the collector in the circuit (Mo. Louis, 680 City of St. S.W.2d main- county of the in which the collector in revers erred App.1956). The trial court not, If he does the collec- tains his office. order dis ing the Tax Commission’s State impounded tor funds. should disburse the challenging appeals missing taxpayers’ (3) If he Tax Com- appeals State assessment. mission, may notify the collector of he for and remanded The cause is reversed in the circuit appeal may such file affirming the actions entry judgment county in which the collector court of the dismissing the Tax Commission such his office a notification of maintains appeals. notifi- appeal. If he makes and files such cations, proceedings pending in the All concur. county in which the
circuit court of the office shall be
collector maintains his
stayed proceedings until before judicial re- Tax Commission
view, any, if are finalized.
(4) The collector should disburse proceedings until all
impounded funds county in which the circuit court Missouri, Respondent, STATE finalized. his office are maintains v. added). 422. (Emphasis Id. at NEWLON, Appellant. Rayfield of times held a number It has been No. 61798. pro sections statutory this Court procedure must be viding appeal the tax Missouri, Supreme Court Boyd-Richardson meticulously followed. En Banс. Leachman, (Mo.banc Co. v. S.W.2d Feb. 1982. Corp. v. Leach 1981); Investment National 1981); man, (Mo.banc Metal S.W.2d 9, 1982. March Rehearing Denied Leachman, Corp. Form (Mo.banc 1980); Properties West Horizons Leachman, (Mo.banc 548 S.W.2d holdings,
1977). with these Consistent action, Tax the State decisions cause 3. It is of interest to note House Bill No. taxpayer’s currently Representa- pending upon merits of a in the House of Commission Session, change would undertake to appeal tives this tax assessment on the have no affect procedure provided 137.080, 137.115, in current 139.031.2. year. any other Sections Bannister, 1969; Corp. Cupples-Hesse RSMo year separately is treated Because each tax 1959). (Mo. purposes and is considered a of assessment separate separate giving to a transaction rise *4 Hocker, Sindel, Clayton, Lon Richard H. appellant. for Ashcroft, Gen., Green, John Atty. Kristie Gen., Atty. City, respon- Asst. Jefferson for dent.
RENDLEN, Judge. Appellant stands convicted of murder, 565.001, RSMo a § which, punishment trial, phase in the 565.006, RSMo at § fixed death, 565.008, judgment RSMo § accordingly. appeal rendered Direct in Court lies such cases for considera- 565.014, assessed, tion punishment § 1978, as RSMo well as the several claims of V, error. Art. Mo.Const. assignments appellant For his of error (1) invalidity asserts: facial of the death penalty; (2) improper excuse for cause expressing unwilling- three veniremen imposition ness to consider of the death penalty; (3) prejudice verdict direct- ing instruction which failed to require finding necessary mental state murder; (4) court failure the trial sponte to sua com- prosecutorial control ment; (5) improper impeach- limitation of witness; imper- (6) ment of a State’s misapplication of vagueness missible 565.012.2(7), RSMo on which punishment predicated, rendering nullity. sentence a evidence From the substantial adduced supportive the verdict the could reasonably following: On have found the beer, purchased six-pack of then m., another April 24,1978, p. 10:20 approximately at neighborhood Mr. in Wil- cruising Mansfield Dave sent wife and son continued “Quick Shop” home from the “convenience” liams’ car. they operated family store as a in Kinlock. m., p. the three approximately 10:30 At later, twenty an alarm About minutes again victim’s drove to the conspirators alerting possible sounded Mrs. Dave to trou- gone. customers had store and found the there, ble when she at the store and she ran Williams and Only Mr. Dave remained. her found husband on the floor dead store while appellant then entered the shotgun up- from dying two wounds car, in the drove West, remained who per body. permit a building place in front of steady of events that fateful flow interior. Williams went view the store’s April 24 led Dave’s to Mansfield murder.. appellant a soda case in rear toward brought day appellant Earlier in the a sin- to the sales counter behind walked gle gauge shotgun shot 16 to the home of standing. that coun- Mr. Above Dave West, appellant a friend of more Walter ter, phys- panels partial formed a plexiglass request, years. appellant’s than 10 At West ical, visual, for the back though not a screen they brought him a hacksaw which used to himself Appellant, area. stationed counter portions saw and the off of the barrel stock. opening where an occurred point shotgun so shortened measured about Dave Mr. who screen and there confronted inches and could be concealed beneath conversation, turned his after a moment’s first jacket short or inserted barrel cigarettes from a get apparently back *5 of a with shirt waistband man’s trousers appellant drew the rack. It then jacket Leaving the over the stock. home clothing in his shotgun concealed sawed-off a liquor a back road to they along walked Mr. victim. As Dave and at his aimed store, who way had appellant, the counter, appellant the back toward turned test eight pocket, shells in his fired seven shotgun knocked him from the with a blast During the this time gun into some weeds. deliberately Appellant to floor. then the appellant suggested they rob Mr. Dave’s single gun, the action open broke extracted “conveniency” he store because wanted shell, peering over spent the reloaded1 store, money”. Reaching liquor “some the Williams, by had then the counter with who appellant, gun who the in his had concealed store, the front of the once more come to jacket heavy fur-trimmed which extended again gun, the took aim hand cocked beer, mid-thigh, bought six-pack to his open again Dave. the shot Mr. He broke they left, flagged and as West down a gun, spent the second shell and extracted Williams, passing by car an- driven Franz from the store. Once followed Williams other friend who had attended school with the two in different directions outside ran appellant through grade. the seventh The up shortly picked in the but were West car, and two men entered Williams’ when car he appellant reentered the car and as they plan, told him Williams robbery (kill) Mr. that he had to “burn” stated agreed join to the scheme. With Williams failed, robbery Though plan Dave. the Quick the driving, trio went to Mr. Dave’s store, the money was from the taken West, where Shop apparently to size the Mr. died from when Dave murder succeeded situation, store, bought pack entered wounds, upper chest and one in the left of cigarettes returning to the car re- left upper shoulder. the other
ported present there many people were too heard the alarm2 Mrs. Dave carry robbery to out at that time. The After store, saw Williams running she liquor men back to the store and drove of the ex general from a full examination determined in a These activities were described way by gun, The hibits. witness West. details operation loading, its mechanism and the cocking extracting brought hand the shells were Dave Mrs. 2. The alarm which shortly after heard West store was he had entered object and noted he was that Williams аnd indeed carrying not kind, any which is of the tes- that Williams did the corroborative the store but asserted timony appellant (not Williams) he, had shooting appellant, while went gun killing. and did the police In this soda case at the rear of the store. promptly summoned to the scene and videotaped he also admitted he statement investigation in their spent found two purpose entering their knew the gauge and, shotgun sitting shells on the carry (robbery) store was to out a “heist” counter, a cold orange bottle of Nehi soda and in statement he also asserted that bearing fingerprints. William’s This too standing Franz while near the car Williams testimony corroborates the that Williams entering that “I before the store stated gone get had to the rear of the store to might have to shoot him [Franz Williams] soft appellant drink from the case while Thus because knows me”. [Mr. Dave] confronted and shot Mr. Dave at the coun- possibility killing Mr. Dave to elimi- ter near night the front. The after the implicitly part nate witness homicide, appellant shotgun delivered plan. important In this connection it is West’s home applied tape where West some appellant “place”, to note that knew the loosened, on the shortened stock which had prior that he had been in the store on cousin, and later Hughes, his Kevin .asked occasions and was familiar with the store gun to take the Hughes from the house. people and some of the who worked there. so, did but apparently apprehensive of the He knew the store was close and that situation, gun delivered the Patton Chief Easy the men “walk” to it. could accessi- of the Kinlock paid Police and was $24. appears bility to have been a consideration Defense Hughes counsel characterized rob, choosing that store to all of which as the “little snitch.” suggests destroying the witness was a trial, police killing. again motive for the At investigation their later story, found the portions changing appellant sawed-off stаted he was of the barrel present and stock at West’s house the scene of the crime. and determined the shotgun was weapon which had
fired the spent two cartridges found at the I. murder scene. *6 Appellant contends that the death
Appellant was at the time of the penalty 565.008, murder authorized RSMo § year man, a 23 old black grade 1978, with an 11th is unconstitutional under the United education. He had four convictions of bur- and Missouri Constitutions. When States glary degree, second three convictions of considering “statutory validity” such chal stealing and one larceny. conviction of lenges legislature’s we are mindful that our Though, the record is unclear how much generally enjoy presumption enactments total time imposed his sentences to- constitutionality of and will be declared taled years at least 12 perhaps and more. only manifestly infringing void when a con Appellant had part served of provision. Hamey, this time in 168 stitutional the penitentiary. In an 167, 620, (Mo. 1902). initial statement to Mo. 67 628 banc S.W. police, presence also, Mitchell, admitted his 18, at the v. 563 26 See State S.W.2d scene but stayed contended he had (Mo. 1978). in the banc determination as car while West and Williams went constitutionality legislatively pre inside to of the store. He later videotaped made a punishment, validity presumed scribed is changed statement and story, admitting seeking heavily those are invalidation shotgun Though argument. sug- second blast. When Mrs. Dave hus- counsel reached her gests appeal (which shooting, prone on that Mr. Dave’s conduct band after the he was behind activating alarm) might gun (apparently pistol) included have the counter with a shooting, appellant partially exposed pocket. Nothing caused the in his state- in his police, record, however, supplies possible ments to the made no mention of the nexus to alarm, testimony, killing. and in his trial claimed he present scene, belying was not at the counsel’s 612 imposed, necessarily accepted there the fa-
burdened to demonstrate it as barberous Higgins, excessive. v. constitutionality penalty 592 the death cial of 151, 155 (Mo. 1979), dismissed, app. banc 446 provisions. 902, 1825,
U.S. 100 64 S.Ct. L.Ed.2d 254 (1980). Appellant Third: maintains that the principles Attentive to these we by the appellant’s penalty prohibited examine First: death is Missouri contentions. I, 2, penalty Constitution, the death cruel provides: violates the Art. which § punishment unusual clause of government That constitutional all Eighth process Amendment and due general promote intended to welfare provision of the Fourteenth Amendment. persons people; of that all have contrary assertion runs to the decisions life, liberty, pursuit right natural Supreme of the United States Court enjoyment happiness and the of the 153, 169, Gregg Georgia, 428 U.S. 96 S.Ct. gains industry; own that all their 859, 2909, 2923, (1976); 872 Prof L.Ed.2d are persons equal and entitled are created 242, Florida, 247, fitt v. 428 U.S. 96 S.Ct. equal rights opportunity under the 2960, 2964, (1976); Jurek v L.Ed.2d . law; things these give security to that to Texas, 262, 268, 2950, 2954, U.S. S.Ct. government, is the principal office (1976). The Gregg L.Ed.2d 929 Court in not government that when does confer Georgia reviewing the statutes’ death sen design. this it fails in its chief security, provisions tence found them constitutional. ours). (Emphasis appropriate chere is analysis in this requires This novel a strained con- proposal challenge tr Missouri’s statute which in es contrary to struction that section its ob- part Georgia leaving tracks that of sential question vious Without little intendment. provi doubt that our death sentence sions, imposed, prohibited by are is not properly sound under State Missouri penalty death imposing Federal Constitution we so hold. section from depraved murderers. Instead State is Appellant, support without Second: “security” charged conferring with for the ing authority, suggests its citizens “happiness” gener- “life” and punish violative of the cruel and unusual ally. is the thrust of section and Such I, 21, provision ment of Art. and due § things (e.g. “government” if fails in these process I, 10, provision Art. § murder) providing does a deterrent Missouri Constitution. We declared 565.- security, it fails its chief “confer this 008, against RSMo valid such attack design.” Further, thе strained construction I, under ex Art. rel. Westfall proposed face of the here flies in the follow- Mason, 916-17 provisions by ing constitutional related 1980), grounds, Bullington vacated on other framers of our Constitution de- Missouri, the death monstratively intended (1981). deciding L.Ed.2d 270 In so we re *7 imposed appropriate could and in would be I, fused to extend the reach of 21 as Art. § I, person cases. 10: “. . . no shall be Art. § requested, arrogate poli and ourselves a life, liberty property deprived of or without cy properly legislative within decision ours). process (Emphasis Art. due of law.” province. Similarly we now refuse to I, 19: shall be person compelled “That no I, § Art. meaning stretch the of 10 to inval § testify himself in a criminal against beyond penalty, idate the death the limits cause, any person put again nor in shall requirements of process the due liberty for the jeopardy of life or same Fourteenth Amendment to Consti U.S. offense, acquitted by a being once Mercer, after in recently tution. More ours). I, ...” Art. 20: 1981), denied, jury; (Emphasis § 618 - cert. by persons “. . . all shall be bailable suffi- -, 432, 70 L.Ed.2d offenses, 240, sureties, except capital cient for this Court reviewed the application of presump- when the evident or capital proof murder and af- Missouri’s statutes ours). (Emphasis firming great.” the conviction and sentence tion light compatible In of the clear of offense and with own intent Missouri’s Constitution and the extraordinary accountability any increase aggravating for or murder, accompanied of too frequently all mitigating fact or circumstance. brutality exceeding incidents of cold
pale people, of civilized we hold that 15.02, INSTRUCTION NO. 9—MAI-CR2d 565.008, 1978, neither RSMo violates Sec- BY MAI-CR 2.12 MODIFIED tions 10 or 21 of of Art. I the Missouri you If find believe the evi- and from Constitution. beyond dence doubt: reasonable First, April 24, that on about or II. Louis, of County of St. We to appellant’s turn now contention Missouri, or defendant another plain the trial court error committed of caused death Mansfield Dave by its Instruction No. 9. allegation him, shooting and objection error was not raised at trial Second, that the or defendant another preserved nor appellant’s for review in mo- intended to take life of Mansfield tion new It trial. is raised for the first Dave, and appellant’s time in brief and will be re- Third, that or defendant another plain viewed for error under Rule 29.12. In they practically knew that certain submitting appellant’s the issue of guilt of Dave, capital cause the death of Mansfield murder an accessory, as trial others, gave, among court following
instructions: Fourth, that the defendant another taking the considered life Mansfield INSTRUCTION NO. 2.10 5—MAI-CR upon Dave and reflected matter persons All guilty knowingly are who so, coolly fully doing before together act with the purpose common Fifth, that the defendant acted either offense, committing an knowingly or who knowingly alone with common intentionally aid or encourage anoth- purpose together with another in the it,
er committing and whatever one to in para- conduct referred the above does in furtherance of the is the offense graphs, you then will find defend- act of each of them. guilty ant murder. presence of person at or near the However, you if do not find and believe scene of an offense at the it time was beyond from the evidence a reasonable committed is alone not sufficient to make propositions, doubt each and all these responsible therefor, him although his find the guilty must defendant presence may together be considered with that offense. all of the evidence in determining his guilt or innocence. Appellant charges plain error in the form of Instruction No. 9. The murder INSTRUCTION NO. 8—MAI-CR2d 2.14 April 24, occurred that time 565.001, In this case you will be instructed the statute effect was RSMo you may find proscribing either not certain acts guilty offense or of either murder. In connection with the capital murder, murder the first de- murder statute instruction MAI—CR2d15.02 gree, murder in the second degree promulgated or was trials oc of homicides manslaughter. curring May connection after 1977. Also in effect *8 556.170, are instructed when two more at the time of the murder was § persons responsible 1969, are criminally delineating for an of responsibilities RSMo offense is degrees, which prescribing divided into the accessories murder and person each such is guilty degree of that punishment for their conduct. MAI—CR is compatible accompanying with that state of 2.12 promulgated its sum, mind with which he acted in and committing In these statutes instruction.
614 suggesting killing in evidence “law- instructions were those the corollary their 24, vogue April justifiable for crimes committed on re- ful” or would have [which 1978, See, time the v. (No. the of murder. quired 9) by State of modifying 15.02 one Lute, 381, (Mo. 1980). 608 S.W.2d 383 banc seq.] set forth at et or excusable forms 2.40 Lute, citing in ex rel. Court State required modifying have 15.02 would [which Bloom, 744, (Mo. Peach v. 576 747 S.W.2d Hence, by requirement there is no 2.28]. 1979), stated, banc . the of ‘provisions “. . “unlawfully” equivalent that the term anor existing prior law new criminal code employed be in this instance. applicable to all offenses committed [are] statutory “willfully” elements ” 1, prior January 1979.’ Here the trial “knowingly” in adequately are reflected court, consistent rule applied with the Lute paragraphs second and third of Instruction employed statutes and the instructions require finding No. which that defend prescribed for use in criminal cases effec- ant intended to take the life knew tive Appellant, at time of the murder. practically certain to cause death. however, complains that because the trial 325, Thomas, (Mo. 595 S.W.2d 1, 1979, January occurred after the effec- App.1980). Code, tive date of new new Criminal statute, is accessory “deliberately” appropri- 562.041and the corre- The element sponding approved ately instruction for that sec- paragraph set forth in the fourth of tion, i.e., 2.12, MAI-CR2d have been should Instruction No. 9 which mandates that de- submitted. This contention not tak- is well fully coolly fendant reflected on this en and it would have been error have Turner, See, 4, v. act. State 623 S.W.2d See, appellant urges. done as now v. State Strickland, (Mo. 1981); v. banc State Lute, supra. 1980). The ele- S.W.2d premeditation ment is in Missou- of defined Appellant No. 9 contends Instruction thought any length ri as beforehand for of apprise fails to of the elements of Turner, supra time however short. State 565.001, capital murder found in RSMo 7. equivalent term “considered” in That section murder defines supplies premedi- No. 9 of requirement as “Any person unlawfully, willfully, who According- prescribed in tation the statute. knowingly, premedi deliberately, with correctly No. 9 ly we hold that Instruction tation kills or of killing causes the another statutory ele- requires finding being human is the offense ments of murder. capital murder.” No. 9 While Instruction 15.02, MAI-CR not does [MAI 2.12] —CR2d Appellant next contends the in words, precise statutory utilize the never it given fatally structions defective in employs theless which have been de terms they finding pre not require did proper termined as substitutes our appellant, complains meditation In courts. Indeed the terms utilized in phrase used in “defendant another” struction No. are preferable instruc No. paragraph each in Instruction 9. This purposes they clearly tional in that more set phrase specifically provided Instruc forth aspects the mental state and other when tion MAI-CR 2.12 and Notes Use necessary crime for conviction of accessory liability, there is evidence particular, appellant murder. complains melding the mode of 2.12 the structure of “unlawfully” employed term 15.02, here, pre is in the form utilized Instruction No. 9. misses This contention An instruction thus in the format scribed. point ques and is without merit. The error. of MAI-CR will not deemed tion of whether homicide is lawful or Easton, (Mo.App.1979), question unlawful is in the first instance denied, t. 444 U.S. of law to be decided the court at the cer 85; Champi determining 62 L.Ed.2d close of the evidence when on, (Mo.App.1978). made. 905-06 whether submissible case has been law, Further, according premed- At Missouri point there was not a scintilla
615 (2) knowingly killing did the that he mаy imput- in itation be found another purpose one who by to as the with a common aided contemplated ed requisite capital intent for language That lan- killed with the of Instruction No. 9. Turner, See, v. 623 S.W.2d guage general when read with the Instruc- murder. State Grebe, 4, 1981); v. 8, (Mo. 461 appel- tions No. that 8 banc State requires No. (Mo.1970). requisite perpe- lant 5.W.2d 265 manifest the intent tration of the offense. It suffices if de- “Fifth” of Instruction No. 9 Paragraph “knowingly fendant in concert with acted proposition contains the essence of this purpose another for the common of commit- abundantly amplified which is and made offense, ting the knowingly inten- para- by clear the first provisions tionally encouraged aided or the other in graph No. 5 and Instruction of Instruction Turner, committing offense.” State error, plain No. 8. a fortiori no We find 4, (Mo. 1981); 623 S.W.2d banc State v. error, given in the instructions. Strickland, 392, (Mo. 609 S.W.2d banc 1980).3 III.
Appellant urges excusing next that for a It is next asserted that 1978, 565.001, jurors conviction prospective under three the trial court vio § RSMo premeditat Witherspoon accused must be found to have lated the v. Illi standards ed, 510, 1770, regard. nois, and the this instructions fails in 20 L.Ed.2d U.S. S.Ct. Missouri (1968). has abolished the distinctions be 776 it error There was held to ex tween principals degree objections in the voicing general first and cuse veniremen Lute, 381, accessories. 608 S.W.2d to penalty. the death In its reiteration of Easton, 1980); 383-84 Witherspoon rule the in Davis v. Court 953, 122, 399,400, 957 (Mo.App.1979), Georgia, cert. S.Ct. denied, (1976), 444 U.S. 62 50 L.Ed.2d stated: “Unless 556.170, committed, L.Ed.2d 85. Under RSMo be ‘irrevocably venireman is ques effective at time of begun, against the murder fore the trial has vote tion, may by one liable as principal regardless aid of death facts and ing abetting emerge might another. MAI-CR 2.10 circumstances (Instruction 5) (Instruction No. and 2.12 he proceedings’ No. course of the ... cannot be ” 9) reflect tenet imposing guilt this on Here the excused fall excluded.. .. three one found to be an accessory properly the same into the Venire- class excluded. degreе guilt imposed princip upon Daily prosecutor: woman was asked Contrary appellant’s assertions, juror In you after selected “[I]f al.4 structions No. 9 and No. permit case, not 5 did heard all the evidence jury appellant guilty to find and deliberated and found the defendant solely murder basis that “another” murder.. .. conclud [the possessed necessary ing objection phrase mental state for restated after murder. These both instructions correct can consider sen defense] ly required appellant (1) arriving your be found to tences in verdict—which imprison- have requisite manifested the intent and are the death and the life Appellant Appellant attempts would also lend credence to his to bolster his contention by arguing tion, hence, premedita- by alleging the evidence showed no claims of instructional error that that argued prosecutor had the been instructed that even the appellant premeditation personal appellant personally premeditat- was neces- need have sary, acquitted. however, pertinent only would have been This is an allegation, ed. Such argument that the evidence was insufficient to improper argument, to a not in- contention conviction, appellant’s sustain rather than a structional error. Further, claim of instructional error. we note evidence, above, virtually parallel the to as set forth was sufficient cur- 4. These instructions also appellant’s capital statutes, 562.041, liability sustain accessory murder convic- rent tion, whether he acted alone or as an accesso- RSMo 1978. ry. *10 616 assertions such fifty Mrs. consideration parole years?” important
ment without
for
explication.
without
generally denied
Lang
are
Daily answered “no”. Venirewoman
(Mo.
209, 211
very
ques
548
responded negatively
Bryant,
to a
similar
v.
S.W.2d
State
of ob
the absence
propounded by
judge.
tion
trial
Venire-
because
App.1977).
defense,
to disre
request
woman Marshall was askеd
jection,
for admonishment
remaining
in
the trial
question
addressed to all the
relief narrows
gard,
for other
persons,
inter
anyone
requiring
venire
there
that
uninvited
options,
court’s
“[I]s
correspond
Mr. Newlon
convicted of
should
be
and a
ference with summation
consider,
. . .
. . .
murder
who couldn’t
such
of error
the risk
ing increase of
imprisonment
of
as well as the
intervention.
replied, would not
penalty?”
death
She
“I
the tri-
Nevertheless,
maintains
appellant
response
penalty.”
consider
death
by not
its discretion
al court abused
volun7
unambiguous
unmistakably
of
was
each
prose-
interrupting comments
tarily
justice
clear. The
re
administration of
here in
argument, grouped
during
cutor’s
quires jurors
ignore
not
who will follow and
categories.
three
38,
Texas,
the law. Adams v.
448
100
First, appellant alleges
prosecutor by
2521,
(1980);
v.
tial evidence to the callous nature did, die, he only not for what deserves of the crime and the murderer. depravity of say absolutely it’s critical I think but The record ex demonstrated a cold-blooded you him, . . . and others like to him deserving ecution of an innocent man better, got to to avoid You’ve got stop killing. identification and/or have pleasure killing, linked with a total this in St. robbing, you and if do stop sympathy lack of remorse for the or crime pay the you’re going to County Louis pros for the victim. The statements of the opportu- people got the price. You have ecutor were directed allegation and to message, to send out this nity here depravity, arguably a condition which could County— all Louis send it out over St. be inferred from the evidence. A similar community Kinlock you’re own [sic] —and remark, “If ever I made heard a better case community could part your is a —this of burglary .,” per second . . was deemed Ladue, Lemay, Floris- happened in have Haynes. missible in no Id. at 13. We find sant, kinds of crimes Ferguson —these court, abuse of discretion the trial and day happening, every go on happen necessarily no injustice sua manifest in nоt say got opportunity you’ve sponte declaring a of such mistrial because area, if Rayfield in this Newlon’s statements. keep your killing to do you’re going group The second chal- comments now communi- doing it —don’t do it in our on lenged, include following: do, kill you going to ty, if we’re because you I submit that he deserves to die. it; it’s got to do right we you because He doesn’t deserve the same to breathe right appropriate and it’s fair and air that Mrs. Dave breathes. She’s —not punishment son, cruel and unusual widow with a no he’s a son with —it’s any father. He doesn’t to breathe remorse deserve Did Mr. Newlon show right.
the same air. any videotape? Did he show in the No. No. Did witness stand?
remorse killing you’d prevented have if been when show reaction emotion Conveniency gun, store with night? last You verdict returned Mr. life? you have saved Dave’s could him? what was look at No. He knew Rayfield? have I think you Would killed what coming; he knew that he did would least, you I you hope would have —at prison big send him to no deal— —that’s courage had the to do either would have before, he’s there assur- been what you you one of those. If think would fifty that he’ll ances do have be there have, now. Kill him now. Once kill him years? legislature change could again, courage to do hope I have says parole. All it It law. doesn’t that, tough. because it’s say it can’t be commuted. There’s no *12 say, I really don’t have much more to assurance that at all. The law could impress upon you I hope but to changed, but at least with death there mean, truly is a war —I a “street war” is any some assurance won’t he commit justifiable and it’s kill in a You to war. message more crimes and the is loud and ques- know there are enemies —there’s no clear, perhaps and others twice will think it, him Rayfield tion and others like about they robbery before commit a take a and going go to enemy are the and it’s still life just for to money. saying What I’m on, on, on, you and unless citizens of and you you if come back with a life sen- go County say going Louis it’s not to St. being without eligible pa- tence him for on, and may you have to catch we fifty years role get that won’t —that do, going we we’re you, convict but when any reaction, expect- and that’s what he’s you, people least those to execute ing you big to come no back with —that’s go it. won’t and do deal, going you’ll to prison, maybe but the court get Appellant maintains you his attention if come back with prevent these failing sponte to sua erred . . . you “we to sentence death.” a mistrial remarks or to declare because crime, personalized the they improperly . gives . . the law you two alternatives. causing appellant, applied to fear But, somebody if mur- appellant, argued to personal epithets crime, der the why they ultimate should anticipa on an penalty for the death based get anything other than death? appellant’s future conduct. The rec tion however, warrants conclusions other ord See, urged appellant. than those State You sending know —when I talk about 235, Hoskins, (Mo.App. 236 v. 569 S.W.2d message well, out a I know the Charles — 27, 1978); Coleman, 32 State v. 524 S.W.2d Mansons message, wouldn’t hear the (Mo.App.1975). prosecu A review of the Specks Richard or the “sons Sam” argument a intent tor’s entire reveals clear people —those kinds of wouldn’t hear it impress upon the serious nature people legally because those are insane — part permissible plea of the as of a murder responsible did, they they what but enforcement. We must not for strict law get wouldn’t message, this kind of and in sight problem then lose of the before fashion, the same —a in- truer he’s not jury. prosecutor was seek court sane. This simply was a ven- business was ing penalty which in view death know, you any he didn’t hear ture — through justified the evidence from him, strange just voices speaking analogy aptness sought demonstrate the money, wanted some and all that stood a set as deterrent. In this money, him between Mans- ting prosecutor may imposition of a urge Davе, field and he eliminated —executed future signal severe sentence as deter him. Wright, community. crimes 421, (Mo. 1974); 515 S.W.2d 432 banc State Laster, 300, Rayfield going your 1076, If harm 306 v. 365 Mo. 293 S.W.2d 936, child, you denied, 1956), would kill him? cert. Would 352 U.S. 619 51, (Mo.1971); McKinney, 475 55 167; Cole, S.W.2d 237, 1 v. L.Ed.2d State Burnett, 239, (Mo. v. State (Mo.App.1979); S.W.2d Brauch, 1968); and State S.W.2d (Mo.App.1977). Bryant, 548 (Mo.App.1975). Further, record it under evidence in this to re improper prosecutor for the challenge centers Appellant’s final prevalence fer to the of crime aas “street following on the comment: or as a appears war” as it from the evidence any show remorse in Did Mr. Newlon knowledge, matter of common any re- videotape? No. Did he show Hart, (Mo. 292 Mo. S.W. the witness stand? No. Did he morse on 1922), argue and to it would be a when the show reaction or emotion upon them un- reflection to fail to convict night? You verdict was returned last presented. prosecu- der the evidence He what was look at him? No. knew family tor’s reference to the victim’s was a knew that what he did would coming; he legitimate comparison of defendant prison big deal— send him to —that’s victim, demonstrative of the inutile nature before, and what assur- he’s been there cruelty slaying and that the senseless fifty that he’ll be there ances do have justifying depravity this act revealed a legislature change the years? The could deterrent to such says parole. is no It doesn’t law. All it *13 See, Jackson, 467, acts. State v. 499 S.W.2d no say it can’t commuted. There’s be Swenson, (Mo.1973); 471 v. 551 State all. The law could assurance of that at 917, (Mo.App.1977). Appellant’s S.W.2d 920 there changed, but at least with death be prosecutor categorized assertion that any he won’t commit is some assurance him with certain notorious killers miscon- message is loud and and the more crimes See, argument strues the regard. in this clear, think twice perhaps others will Hoskins, 235, (Mo. State v. 569 236 S.W.2d robbery and take a they commit a before Coleman, App.1978); v. State 524 S.W.2d saying What I’m to just money. for life 27, (Mo.App.1975). Taking 32 the remark sen- with a life you you is if comе back context, in it appears prosecutor eligible pa- was for being him tence without get urging imposition of the death that won’t fifty years for role —that reaction, expect- in a case such as as a what he’s this would serve and that’s big no better deterrent than it would to one of the to come back with —that’s ing maybe you’ll deal, prison, but going insane mass murderers mentioned. The to back with if come argued having impermissi- get other remarks as his attention death.” crime, you to bly personalized the or caused the .. . “we sentence urged to appellant to fear Mobley, 369 v. S.W.2d He relies on State prevent by appellant, future crime proposition 576, (Mo.1963), for the 580-81 coupled generalizing the de with comments argue a defendant’s may not that the State terrent to of a strict sentence effect others of his charac- criminal record as a reflection in this case. The thrust of the contested conviction, pre- nor to ter and a basis for plea statements was a for stricter law en Mobley, acts him. vent future criminal forcement as a deterrent to crime. v. State however, argument inapposite. is 9l7, Swenson, (Mo.App. 920 unitary proceeding for deter- there was in a 1977). that the long recognized It has been burglary charge. guilt of on a mination prosecutor permitted argue prop such is appellant’s prior criminal testimony Here prevalence of crime in the ositions as the entered case as convictions had inhab community, personal safety testimony of its during his impeaching evidence itants, law jury’s duty uphold and the phase. evidence was guilt Such as well failure to during pre- as inferences from its available for consideration convict, hearing pleas may upon phase) and such call com (punishment sentence experience. Rodriguez, (§ 565.006.2) mon 484 to the issue and was relevant 203, (Mo.1972); depravity, revealing part appellant’s S.W.2d v. Jack in 207 State crime, son, (Mo.1972); background v. to bettеr assess S.W.2d State year three These appropriate sentences. sentences were then convicted criminal and the punishment. subject imposed only days It was a two before had permissible been argument. plead guilty for to murder in the contention denied.8 allowed degree part second for his in the Mansfield V. killing. Though Dave he had not been sen- It next contended that tenced, agreed the State had to recommend trial court in refusing erred to allow testi years. ten This told the West had mony of a impeach defense witness to Wil involving dishones- been convicted crimes single liam West’s reputation. question A ty (burglary stealing) and crimes of posed to defense witness Parker: (the Dave), violence murder Mr. had “Does he reputation have a in Kin- [West] (the profound plea bargain for interest for Objection lock truth veracity?” degree murder) motivating his testi- second proof sustained and no offer nor mony favorable to the State. Evidence of inquiry allegation further followed. This testimony in return for his “deal” error, not appellant’s included motion for jury. Clearly, evi- before the additional trial, new plain will be examined for error general reputation dence as to his could under Rule 29.12. While testimonial evi marginal impeach- have value been may dence be impeach introduced to a wit it Additionally, ment.9 is difficult to fault reputation ness’s for truth veracity it question the court when at the time in Woods, the community, State 428 S.W.2d requested provide that defense counsel (Mo.1968); Cross, answer “authority” allowing some (Mo.1961), the trial court has question. While it is not required wide discretion toas the admission of such authority supplied, such made counsel Miles, evidence. Mo. proof suggestion neither offer of nor (Mo.1913). S.W. credibility requested. West’s assist the court. relief was No had been repeatedly throughout pursued attacked further Indeed the matter was during prior felony during cross-examination trial nor raised the motion *14 convictions, as as the new It be said the trial court well voluminous rec trial. cannot statements, ord is of less prior guilty of his inconsistent reversible error much mani- brought injustice. fest jury’s to the attention. West admitted stipulated and it was he had been VI.
convicted
burglary
degree
of
second
and
stealing,
(a
flourishing
as well as
deadly
the
in
Court reviews
sentence
weapon), for which he received concurrent
murder cases when the death
is
arguments
People
jury’s
prison get
8. The
directed to the
associate with.
killed—
emo-
peculiar
prosecution.
daily
tions were not
it’s a
routine.
strong appeal
defense too
know,
made
to the senti-
You
I
to
I were in
like
fish.
If
jury,
including
ment
well as the minds of
prison,
the
I
or
wouldn’t see
lake
a stream —it’s
following:
the
fifty years.
total restriction for
Total restric-
you
tion.
Courtroom, Rayfield
If
look around the
him,
you
they’ll
any family
If
decide
week,
to kill
take him to
hasn’t had
here at all —this
penitentiary
put
any
the
he hasn’t
him in a chair and
just
had
friends here.
It’s been
in,
eyes
Rayfield.
strap
pull
me
him
a switch —his
will
stop
roll back in his
and his
will
head
heart
and life will end.
Rayfield
I don’t see how
can kill him.
twenty-four years old.
analogous
In a
of
somewhat
situation
a mo
Now,
are,
course, fifty
the alternatives
of
newly
tion for a new trial because of
discover
years
prison
parole,
without
or the death
evidence,
testimony merely
impeach
ed
Rayfield.
live,
If
should let him
credibility
ment of
little
witness’
carries
seventy-four years
would be
got
old when he
weight,
testimony
and a new
will
trial
such
prison,
though
out
and even
Mr. Westfall
302,
Taylor,
be refused.
State v.
589 S.W.2d
T.V.,
watching
going
made
reference
(Mo. 1979);
Brown,
305
360 S.W.2d
that,
things
recreation rooms and
like
618,
(Mo. 1962);
Wynn,
622
State v.
—you get up
morning
and there are
936,
(Mo. 1962);
Rutledge,
grey
four
with
walls
bars
the end
(Mo. 1958).
People
prison
people
room.
are not
Georgia Code Annotated
27—
565.014.1,
§
statute.
imposed,
determines
§
under
on at
2534.1(b)(7).
whether
sentence was assessed
The United
has
States
any
passion, prejudice
the influence of
Georgia
least two occasions examined
565.014.3(1),
arbitrary factor,
other
aggravating
§
statute and its
jury’s
supports
whether
the evidence
stat-
No. 7 and concluded the
circumstance
circum-
finding
statutory aggravating
facially
Gregg Georgia,
ute
valid.
enumerated in
565.012.
565.-
§
stances
§
96 S.Ct.
L.Ed.2d
014.3(2). Here the record reveals
(1976); Godfrey
Georgia,
446 U.S.
jury and im-
death sentence fixed
(1980).
L.Ed.2d 398
As
result of
posed by the court was not the
above, one who
noted
attacks the constitu-
passion, prejudice
any arbitrary
factor.
heavy
statute bears a
tionality of a
burden
phase
pro-
At the first
of the bifurcated
appellant
Appellant
has not carried.
565.006,
ceeding
jury
mandated
§
during
notes that
their
deliberations
finding appellant
returned
verdict
jury requested a definition of the phrase
hear-
presentence
murder.
In the
mind” and
“depravity
request
followed,
ing
party presented
neither
argues
court. He
denied
this demon-
additional evidence but both
exten-
argued
invalidity.
strates the facial
As with
sively
punishment.
jury
the issue of
intent,
attempt
(e.g.,
a mental
to label
state
aggravating
instructed
two
circum-
deliberation,
doubt)
reasonable
can be
there
(1)
stances:
whether
the defendant mur-
objective
precise
definition
terms.
for its
dered Mansfield Dave
purpose
for the
phrase “depravity
So it
is with the
receiving money
thing
or any other
of mon-
appellant
quarrel
mind”. While
would
with
value,
etary
565.012.2(4); (2)
§
whether
terms,
the lack of further definition of
such
murder of Mansfield
deprav-
Dave involved
prohibit
legislature
does not
enact-
from
ity of mind and that as a result thereof it
ing
penalties
according
graduated
criminal
outrageously
or wantonly horrible or
Hence,
to an
mental
when
offender’s
state.
inhuman,
565.012.2(7). The
§
court also in-
employs
the statute
such words of common
structed the
on these mitigating cir-
speech,
it is
responsibility of the
(1)
cumstances:
whether the defendant was
determine if
offender acted in a manner
accomplice
in the murder of Mansfield
denoting depravity of
mind. In addition
Dave and whether
participation
was rel-
previously
safeguards pro-
mentioned
minor,
atively
565.012.3(4); (2)
whether
viding
process
due found in the manda-
defendant acted under extreme duress or
tory
provisions,
565.014,
review
must
we
substantial domination
person,
of another
*15
review
the
is
whether
sentence of death
565.012.3(5); (3)
age
the
§
of the defendant
disproportionate
excessive or
offense,
the time of the
565.012.3(7).
§
imposed
considering
in similar cases
both
The jury
beyond
found
a reasonable doubt
elimi-
appellant,
crime
and
ag-
existence
the second submitted
nearly
possible
impo-
capricious
nates as
gravating circumstance and
evidence
penalty.
find
sition of
the death
We
jury’s
supports
findings.
1978,
565.012.2(7),
facially valid un-
RSMo
Appellant
565.012.-
contends that §
der the
Constitution.
Missouri
2(7)
facially
is
unconstitutional
reason of
Godfrey
Georgia,
Citing
U.S.
vagueness
its
and is violative of the due
(1980), appel-
However,
outrageously
that as a
thereof it was
language of the
result
statute
its
God-
wantonly
correlative instruction are the same in or
horrible
inhuman.”
however,
aggra
unique
all
to that
facts.
frey,
essentials
of the seventh
rests on its
Georgia
There,
vating circumstance of the
death
conceded defendant had
it was
shell,
tortured
a fresh
ag-
gun,
the victims nor committed an
closed the
reclosed and
Yet,
gravated battery' upon them.
gun,
leaning
recocked the
over the
jury’s finding
sentence rested on the
fallen,
counter where the victim had
shot
Godfrey’s
actions had been “outra-
again
lay
Mansfield Dave
bleeding
as he
vile,
geously or wantonly
horrible or inhu-
more,
opened
floor. Once
Newlon
[they]
man in that
depravity
involved .. .
gun
shell, appar-
and extracted the second
”
of mind. . . .
rejеcted
The Court
such
shell,
ently
however,
to insert a third
unconstitutional,
conclusion as
noting sever-
sounded, causing
alarm
him to run from the
al facts: Godfrey’s
family
victims were
store. The second extraction indicated
members who had caused him “extreme
might
Mansfield Dave
have suffered a third
trauma”;
emotional
in an emotional
alarm,
shotgun,
blast from the
but for the
state, he had
instantaneously;
killed them
why
for
else would Newlon have broken
shortly
killing
after the
Godfrey acknowl-
open
gun
a second time and extracted
edged involvement and the heinous nature
except
preparation
shell
a
second
for
further,
of his crime
Godfrey
had no
killing,
third
shot.
senseless
criminal
Godfrey’s
record. On these facts
killing
killing’s
Appellant argues
sake.
actions were deemed not to reflect “a con-
there was no torture involved and thus a
materially
‘depraved’
sciousness
more
than
required
reversal of the death
sentence
person
that of
other
guilty of murder.”
However,
Godfrey, supra.
under
it should
judice
the case sub
estab-
pointed
out that
if
Mr. Dave
dead
lished that Newlon’s conduct was outra-
shot,
blast,
after the initial
the second
delib-
geously
vile,
or wantonly
horrible and inhu-
described,
erately performed in the manner
planned
man. Newlon
robbery making
corpse,
would have served to mutilate the
preparations
elaborate
for the scheme. He
purpose demonstrating depravity.
macabre
help
willing
enlisted the
of a
accomplice,
If,
hand,
on the other
Mansfield Dave was
West
accomplice,
and later a second
Wil-
alive,
still
the second shot was to insure the
provided
liams. He
gauge
also
a 16
shot-
killing, and the first blast from this sawed
gun,
portions
and sawed
from the barrel
shotgun
off
must have inflicted extreme
and stock to facilitate its concealment and
suffering.
supports
finding
The record
provide
especially dangerous
range
short
See,
depravity.
Turner
Common
weapon. He
gun
test fired the
and selected
Virginia,
wеalth of
221 Va.
273 S.E.2d
robbery
nearby
convenience store
denied, 451
(1980), cert.
operators.
where he knew its
Before enter-
(1981).
623 case penalty of the death firmance killing those in the store. About start time, Turner, hearing siren, without for the murder The sentence of death bar. warning, shot in the head with Dave is excessive nor Smith neither of Mansfield Apparently taken from an- imposed revolver Bain. in penalty disproportionate gered aggravated triggering or considering the crime similar cases po- the silent alarm and the arrival of the appellant.
lice,
over
and in
Turner leaned
the counter
Judgment affirmed.
fired
into
rapid succession
two more rounds
March
Date of execution set for
here,
Turner,
appellant
Smith’s chest.
like
prior felony
a record of
convictions.
had
WELLIVER,
DONNELLY,
J., and
C.
outrageously
found his
The
acts
JJ.,
HIGGINS,
concur.
MORGAN
vile,
wantonly
horrible or inhuman and
perpetrator’s
resulted
conduct
from the
SEILER, J.,
part and dissents
concurs in
mind,
depravity of
justifying imposition
separate opinion filed.
part
in
in
penalty.
Supreme
the death
The
Court of
J.,
BARDGETT,
separate opin-
concurs in
are
Virginia affirmed. The facts in Turner
dissenting
part
concurring in
ion
strikingly similar to
us.
In-
those before
SEILER, J.
part of
deed,
killing
possibly
in Turner was
more understandable
emo-
because of the
SEILER,
part
Judge, concurring in
aggravation
or sense of
generated
tion
dissenting
part.
the alarm and the siren
arriv-
heralding the
in result
affirmance of the
I concur
as to
al
police.
pertinent
of the
portions
murder,
respect-
but
conviction
Virginia
statutes
es-
are similar in all
as to
fully dissent
the affirmance
to ours and
sentials
the decision in Turner
forth
penalty, for the reasons set
death
provides
precedent
persuasive
here.
below.
contentions
legal
error have
been denied for the
heretofore enu
reasons
I
opinion.
merated in this
The evidence from
by jury
Defendant was found
the record substantiates the verdict. Sec
capital murder and
to death.
sentenced
case,
tion
In this capital
565.014.7.
murder
imposed,
penalty
the death
When
on appeal
the second decided
in which the
1)
duty:
we must
court has
three-fold
has been imposed under the
stage of the
guilt
or innocence
review
statute,
current
murder
have
we
error;
re-
2)
we must
trial
bifurcated
under
565.014.5
these similar
considered
sentencing stage of the trial for
view the
imprison
cases in which both death and life
error;
3)
independent-
and we must review
jury,
ment were submitted to
and which
appropriateness of the death
ly the
have
affirmed
v.
appeal:
been
State
and for this
particular
for this
Mitchell,
1981);
(Mo.
1. All references are to RSMo unless indicated otherwise. (2) Whether the lation to insure supports jury evidence that would be jury’s judge’s finding statutory given proper of a direction so that the death aggravating penalty imposed circumstance as enumerated would not be in an arbi- 565.012; trary capricious Roy- manner. al, 1981). (3) Whether the sentence of death is ex- statutes, charged Under our a defendant cessive or disproportionate penalty to the with capital murder is tried in a bifurcated imposed cases, in similar considering both 565.006.1, trial. Supp.1981. Section RSMo the crime and the defendant. stage The first involves determination of because, This review is essential once the guilt; stage the second involves determina- executed, sentence is there is opportuni- punishment. impose tion of To death as the ty to correct it. Because I conclude that punishment, the trier of fact must find the sentence of death in this case is “exces- beyond a reasonable doubt one of twelve sive or disproportionate im- statutory aggravating circumstances. Sec- posed cases,” in similar and that the sen- 565.012.2, tion Supp.1981 RSMo 1978 and tence imposed “was under the influenсe of” (the version, case, applicable to this passion, prejudice and arbitrary other fac- only aggravating circumstances). lists ten tors, either of require which is sufficient to jury guilty found defendant Newlon reversal of the penalty, death I would af- murder of Mansfield Dave. firm the conviction for murder and jury It is true that the could have found the reverse and remand the cause for resen- page principal facts as set forth on 3 of tencing. 565.014.5(2). Section opinion as to defendant and Franz Williams II entering together, the store with defendant Supreme The United States wielding shotgun doing Court Fur the shoot- Georgia, man v. ing, S.Ct. but it is impres- incorrect to leave the (1972), L.Ed.2d 346 challenged found the sion that the verdict of means that eighth statutes violated the jury found the facts as above. On the guarantee amendment’s against below, cruel and contrary, developed as will be unusual punishment because the jury defendant, statutes could have found that the applied were in a discriminatory and arbi being principal, instead of was an ac- trary manner. Id. Williams, at at 2731 complice of Franz and that Wil- (Douglas, J., concurring). Justice shooting, Stewart liams did the while defendant was in Furman “[tjhese stated that death sen getting at the back of the store a soda to tences are cruel and unusual in the same divert the victim’s attention. Because the way being that by lightning struck is cruel directing required only verdict instruction For, and unusual. people of all the convict that the find either “the defendant or ed [capital crimes], just Dave, many repre way another” killed Mr. there is no these, petitioners among hensible as are determine which of the two versions capriciously Indeed, princi- selected random handful found as the fact. upon whom the sentence pal opinion points of death has in out that instruction no. 9 fact imposed.” been Id. appellant’s guilt 92 S.Ct. submitted mur- 309 — (Stewart, J., at 2762 .concurring). In re der accessory” “as an and that the instruc- sponse Furman, Missouri, along with requires 1) tion either that did defеndant many jurisdictions, other adopted legis- 2) new killing, aided one who did.2 Instruction no. that in- Second, 9 was as follows: defendant or another to take the life of Mansfield Dave, tended If find and believe from the evidence Third, that the defendant or another knew beyond reasonable doubt: certain to cause they practically First, on or about 24, 1978, April Dave, the death of Mansfield County St. State of Louis, Missouri, con- Fourth, the defendant or another or another caused the death of taking sidered the life of Mansfield Dave and shooting Mansfield Dave him, *18 However, prosecutor wanted to be prosecutor To return to the facts: The only problem, was faced with a because his jury they knew that could sure that eyewitness supporting theory that de- capital if convict defendant of murder even fendant fired West the shots was Walter they did not believe witness West credibility prob- and there were formidable personally believe that Newlon did not West, lems with the as to who jury West. end, killed Mr. Dave. To that the state prior according had five convictions to the videotaped introduced defendant’s confes- prosecutor, was also in to rob plot statement, In this admit- sion. and kill Mr. Dave and served as lookout and shotgun; helped ted that he saw off the getaway driver of the car. He made deal to that he knew Franz Williams intended whereby permitted with the state he was to man; money get from the that Williams plead guilty degree to second murder and only years, (Williams) might received a sentence of ten which have “to shoot him said to served outside the state.3 me”; because he knows that defendant was get sent to the back of the store to a soda to automobile, West testified he was in an street, attention; parked forty across some five divert Mr. Dave’s that defendant yards (actual from the store front measure- at the back store when he heard feet). dark, m., ment 157 p. It was 10:30 shots; the two that Franz Williams had the and the store level was five feet bеlow shotgun, which he concealed under his coat level, parking lot down two short flights of car; they got when out of the steps. The photographs put triggerman.4 was the Williams Under this state, evidence Exhibits 3 and statement, course, defendant would be 14, purporting to show the general area and guilty accomplice, of capital murder as an store, the location of the would raise a prosecutor recognized, which the submitted question by any viewer as to whether West instruction, to the in the main inwas position see all that he testified to, argued. although, course, question this was a jury. for the prosecutor The many times in argument guilt his his jury argument sought to bolster West’s case, phase prosecutor on at least credibility. He insisted that physical seven voluntary occasions stressed the char- disprove evidence did not testimony West’s empha- acter of defendant’s confession and and he explain away undertook to the dis- that, sized even if West were not to be crepancies between deposition West’s believed, the defendant his own state- his trial testimony. He repeatedly urged guilty ment was still murder as the jury not disregard testimony. West’s accomplice example: of Williams. For counsel, Defense expected, would be hope you’re going disregard “I strongly attacked West’s credibility and ar- Rayfield up . . . confession was involved gued physical facts belied West’s testi- mony gave as to his neck.” didn’t know when he what he claimed to see from “[H]e across the street. statement, videotape that he said more enough than to convict him and convict principal opinion devotes an entire himself of murder.” “Either Franz page to the attacks made on West’s credibil- ity. Rayfield Williams killed him and was in the prosecutor said, upon coolly fully closing argument reflected this matter so, doing frankly got quite
before
“Walter West
a deal —and
Fifth,
something
you
apologize
that the defendant acted either alone
I
for.
It’s one of
knowingly
purpose
got
regrets
and with common
to-
I
have. Walter West
far too
gether
deal,
good
with another
in the conduct
referred
and it’s
that he’ll
unfortunate
paragraphs,
years.
to in the
get
above
then
will find
with ten
...”
off
guilty
the defendant
murder.
However,
if
do not find and believe
4. Franz Williams was not called as a witness
beyond
from the evidence
a reasonable doubt
testify
either side and did not
in the Newlon
propositions, you
each and all of these
must
trial.
find the defendant not
of that offense.
*19
considering
back of the store—which he
both the defendant and the
said in the
videotape, Rayfield
or
Newlon did the kill-
principal opinion
crime. The
does not at-
ing and Franz Williams was in the back of
tempt
justify
penalty
the death
for de-
the
store? Which is what?” “If
don’t
guilty
fendant if he were
murder
West,
believe Walter
we still have the vi-
accomplice.
as an
confession,
deotape
wherein the man admits
good police
to two
he
officers after
volun-
Ill
tarily
thought
surrenders . . .
he
Neither
the state nor the defendant
just
had
robbery,
admitted to a
but not a presented
punish-
further evidence in the
finally, just
murder.”
bringing
And
before
trial,
stage of the
ment
but both counsel
close,
his
argument
final
to a
“but even if
argued
jury.
argued
to the
The state
you disregard everything Walter said . . .
aggravating
submitted two
circumstances
regardless you got
but
videotape
the
confes-
1)
jury:
“Whether the defendant
sion where he admits he was involved in the
purpose
Dave
murdered Mansfield
for the
robbery
through
and all
this confession he
receiving money
any
thing
or
other
remarks that he knew a robbery
going
was
value”;
2)
monetary
“Whether the
involving
occur and
a
shotgun,
sawed-off
deprav-
murder of Mansfield Dave involved
shotgun
and that
pulled
out before
ity of mind and that as a result thereof it
they went in the store and Franz said he
outrageously
wantonly
or
horrible or
might have to kill him.”
jury,
sentencing
The
inhuman.”
de-
earlier,
As said
instruction on
death,
only
ag-
fendant to
found
the latter
disjunctive.
murder was in the
required
It
gravating circumstance—“the murder of
only
jury
find eithеr “the defendant or
depravity
Mansfield Dave involved
of mind
another” killed Mr. Dave. To reach its
and that as a result thereof it was outra-
verdict,
jury
could have found that ei- geously wantonly
or
horrible or inhuman.”
ther Franz
Rayfield
Williams or
Newlon
deliberations,
jury
During
requested
its
shot and killed Mansfield Dave with two
“depravity
a definition of
of mind.” This
blasts of a shotgun during the course of a
request was denied.
robbery.
jury
could have found that
565.012.2(7)
jury
allows the
Section
accomplices
entering
realized before
impose
the death
if it finds that
Conveniency
they might
House that
need to
outrageously
offense was
or wanton-
“[t]he
kill
prevent
Dave to
identification and thus
vile,
ly
horrible
inhuman in that it in-
or
requisite
had the
jury
mental state. The
torture,
depravity
volved
or
of mind.” This
could have believed
videotaped
defendant’s
subjec-
aggravating
requires
circumstance
statement,
copy
they requested
of which
tive,
objective, finding by
rather than an
during deliberations,
and received
jury.
Theoretically,
jury
could find
disbelieved Walter
testimony
West’s
intentional,
every
deliberated murder
still found
guilty
defendant
the in-
under
“depravity
involves
of mind.”
principles
accomplice
structions and
lia-
aggravating
An
circumstance similar to
bility.5 From the verdict it is impossible to
565.012.2(7)
in the death
is found
determine
whether the
believed de-
Georgia ver-
statutes of several states. The
guilty
principal
fendant to be
as a
anas
sion,
imposition of the
accomplice.
which authorizes
It
therefore
as-
cannot be
sumed,
does,
penalty if “the murder was ‘outra-
principal opinion
as the
vile,
triggerman.
geously wantonly
defendant
horrible or inhu-
was the
im-
torture,
portant
depravity
directly
because it bears
on the man in that it involved
question
mind,
aggravated battery
of whether the
to the vic-
death sentence is
or an
disproportionate
”,
compared
27-2534.1(b)(7)
to similar cases
tim’
Ga.Code Ann. §
beyond
prosecutor,
5.
mat
believe
a reasonable doubt
after the
had
returned
murder,
pun-
pulled
trigger,
verdict of
or that he
that he
had
stated,
stage argument
“By returning
pulling
ishment
frame of mind
consistent with
that’s
your
trigger
verdict
in this case . . . that either means
..."
cases.
Blake
in similar
See
ing patterns
Georgia,
Gregg v.
(1978),
challenged
Zant,
(S.D.Ga.1981).
F.Supp.
49 L.Ed.2d
96 S.Ct.
au-
(1976)
it would
being
so broad
whether
cannot be sure
begin,
To
we
penalty in
imposition of the death
thorize
actually did
Williams
or Franz
at
96 S.Ct.
every murder case.
Id.
tell under
way
is no
shooting. There
response,
the United States Su-
instructions,
evidence,
and the ver-
course,
is, of
preme Court stated that “[i]t
only
Certainly if defendant
dict.
depravi-
involves
arguable that
murder
triggerman,
*20
there
and not the
accomplice
battery. But
ty
aggravated
of mind or an
capital murder case
single Missouri
not a
this
language
this
need not be construed in
opinion makes no effort
(and
principal
the
that
way, and there is no reason to assume
be similar
one)
can be said to
to cite
which
Supreme
Georgia
adopt
will
the
Court of
penalty was assessed
the death
where
open-ended
such an
construction.”
Id.
jus-
accomplice or which would
against the
Gregg
by Godfrey Georgia,
followed
was
here.
upholding
penalty
the death
tify our
420,
1759,
64 L.Ed.2d
S.Ct.
was found
that defendant
The alternative
(1980)
petitioner’s
where the
death sentence
is
accomplice
murder as
27-2534.1(b)(7)
based on
was reversed be-
the
part
VI of
not considered or discussed
principled
cause
is
to distin-
way
“[t]here
re-
principal opinion,
proportionality
the
case,
penalty
guish this
in which the death
principal
on which the
view. The sole basis
imposed,
many
from the
cases in
on the
penalty
the death
opinion affirms
Godfrey Georgia,
it was not.”
446 U.S.
the vic-
actually killed
premise that Newlon
433,
Georgia
at
at 1767. The
only
if defendant were
tim.
I am certain
court, construing
2534.1(b)(7)so that
§ 27—
justification
prin-
the
accomplice,
the
the
“catch-all”,
it would not become a
stated
penal-
cipal opinion
upholding
the death
that:
ty,
622,
a recital of
as it is on
based
plain meaning
Under the
of the stat-
by
suрposed
performed
to have been
events
ute,
only
not
must the murder be outra-
triggerman, must
fail.
defendant as the
vile,
geously wantonly
or
horrible or inhu-
man,
say,
interpreted
or to be
addition,
I do not mean to
but in
the facts of the case
accomplice
that an
in a
aggravated battery
saying,
must show either an
victim,
victim,
justifiably
to the
receive
torture of the
or murder could never
us,
depravity of
how-
mind of the defendant as
In the case before
death sentence.
explained.
hereinafter
ever,
justification for the death sen-
the
opinion in
by
principal
the
tence is found
State,
339,
Hance v.
Ga.
S.E.2d
person
the
who
solely
the
committed
acts
denied,
cert.
449 U.S.
101 S.Ct.
the first
shooting:
firing
the
did the
(1980).
princi
We also out aggravating that the principal opinion cites cases it has circumstance submitted by instruction 19 compared with the instant case in determin- found require does not ing dispropor- that the death sentence is not the jury make determination as to applied tionate when to defendant Newlon whether defendant triggerman was the particular compared for this crime to the accomplice. question posed penalty imposed in similar cases. In other jury by instruction 19 was “Whether the words, it attempt has made an to distin- murder of Mansfield Dave deprav- involved guish assumption cases on the that defend- *21 ity of mind and that as a result thereof it Mitchell, killing. ant did the actual was outrageously or wantonly horrible or (Mo. 1981), banc S.W.2d is the first inhuman”. inquiry This focuses on the act Mitchell, case cited. In the defendant was itself, of murder not on who was the mur- found of two counts of mur- derer. The jury could believe the murder during der committed of a course rob- involved depravity of mind and was outra- bery liquor of a store. Both victims had geously or wantonly horrible or inhuman stabbed, eight been one six to times and the being required without to determine wheth- approximately other twelve times. Both er it was “depravity defendant’s of mind.” victims also had severe blows to the head. The portion specifying of the verdict aggravat- The was instructed on four aggravating circumstance found reads as ing circumstances, including “the offense follows: vile, outrageously wantonly was or horrible designate following aggravat- or inhuman in that it torture or involved
[W]e ing circumstance depravity or circumstances which of mind.” Because the we find beyond a agree punishment, reasonable doubt: unable to on the defend- imprisonment ant was life sentenced to
Whether the murder of Mansfield Dave probation parole without chance of depravity involved of mind and that as a fifty years. 565.008.1. result thereof Section outrageously it was wantonly horrible or inhuman. Royal, A second case cited is question verdict does not resolve 1981). Royal, In S.W.2d whether defendant or Franz Williams com- during robbery defendant of a bank mitted upon the acts principal which the employee, abducted an her to a remote took opinion justification rests its of the death county, area in the and killed her. The penalty. a .22 victim had been shot three times with gun. jury, being caliber The after instruct-
However, assume, even if we as does the circumstances, aggravating ed on three in- principal opinion, that defendant fired 565.012.2(7), cluding recommended a life (something § shots which we cannot assume sentence. under verdict), the instructions and disproportionate Downs, A third case cited penalty imposed in similar or worse cases. Downs, (Mo.1981). In the de-
The
fendant was convicted of three counts of
prosecutor
principal opinion
and the
characterize this
murder. Downs and two co-defend-
murder as an “execution-
However,
type” killing.
husband
it is the facts of
ants entered a store to rob it. The
respective
wife,
store,
homicides which we
owners of the
were shot in
must
examine,
phrase
not the
applied
daughter, returning
catch
to the head. Their
home
straddling
body
his hands
school,
ant
Karen’s
with
building
pulled
from
into the
at
screamed
The
her
throat. Defendant
pleas
mercy.
and shot
her
despite
Campbell
pulse.
her
Campbell
cir-
take
jury,
on three aggravating
instructed
seemingly lifе-
cumstances,
grabbed the arm of Karen’s
565.012.2(7),
including
recom-
pulse. At the
body and found a faint
less
identi-
mended a
sentence.
life
Downs
this, he could smell
time he told defendant
as the
his accom-
triggerman
fied
one of
was all
the bed.
human waste which
over
plices.
‘hollered,’
side of
struck
left
Defendant
cannot
to distin-
principled
I
find a
means
head,
said,
‘Die
....
Karen’s
bitch
guish
three
between the
cases cited
leaky
cunt. Die.’ He continued
This is
factually
similar
case
are
the instant
her,
again screamed
strangling
Rayfield
justify sentencing
which would
pulse. Campbell
her
Campbell
take
death, yet justify sentencing
Newlon to
de-
Campbell reported
pulse.
found no
When
Mitchell, Royal,
to life
fendants
and Downs
bed,
this,
got
grabbed
off the
fact,
objective-
imprisonment.
In
looked at
bed.
legs,
pulled her off the
Karen’s
ly, the
in the cited
were more
murders
cases
took the sheets and blankets
Defendant
great-
“vile” and
the murderers exhibited
washing
Campbell
and told
machine
Mitchell,
er
In
there
“depravity of mind.”
the floor.”
Id. at 4.
wipe the waste off
victims,
by multiple
were two
both killed
aggravating
on two
jury,
instructed
Royal,
blows and
wounds.
In
the vic-
stab
circumstances,
565.012.2(7),
including
re-
kidnapped
tim was
and driven to a remote
penalty, which this court
turned the death
area,
rural
a ride which
have become
must
shooting
of victim Dave
affirmed.
ominous,
increasingly terrifying
prior
during the
shotgun
two
shells
means
Downs,
being
shot three times.
there
attempted robbery
does
course of
case,
three
victims.
In the instant
*22
equal
depravity
moral
exhibit-
begin to
the
victim,
shotgun
there was one
killed
two
by
Mercer,
in
shown
ed
the defendant
addition,
blasts.
In
there is
to know
way
and set
atrocities inflicted on
victim
the
whether
the
triggerman
Newlon was
above.
out
accomplice.
whether he
anwas
review,
proportionality
To achieve true
Williams,
A fourth case cited is State v.
cases
to
murder
we need
examine
(Mo.
611
1981).
S.W.2d 26
banc
In Wil-
princi
than the
mentioned in the
other
few
liams,
defendant,
the
after repeated efforts
Ross
above. Cf.
pal opinion and discussed
successfully
had
acquaintance
solicited an
State,
361, 211
359
233
S.E.2d
v.
Ga.
to kill her husband. The jury recommended
denied,
97
(1974), cert.
429 U.S.
S.Ct.
imprisonment.
life
only
The
similarities
(as
point
(1976)
earlier
banc
Ingram,
penalty,
State v.
607
S.W.2d
death
Holmes
sentenced
life
(Mo.1980);
Hudgins,
imprisonment.
(Mo.1981);
White,
S.W.2d
State v.
Strickland,
In
defendant was convicted of
(Mo.1981);
Jensen,
S.W.2d 287
State v.
one count of
murder and two counts
(Mo.1981);
Chandler,
S.W.2d 263
degree
of second
murder. The victims were
(Mo.
1980);
in a
jury,
ditch outside of town. The
in-
from
of blood after he stabbed her
loss
depravity
aggravat-
structed
of mind
twenty-one
strangling
times as well
her.
ing circumstance,
recommended
life sen-
were seven inches
Some of
wounds
tence.
her
deep.
strangled
then
six
Defendant
year
with
extension cord and
Baskerville,
old son
the defendant was con-
*23
placed
body
in a bathtub filled with
capital
victed of three
of
counts
murder.
jury
guilty by
water. He was
a
of
found
twice,
One victim was shot
one was shot
murder,
capital
only to life
but sentenced
once,
third,
begged
a child who
for his
imprisonment
parole
fifty
without
for
life,
imposed
was shot
The jury
once.
years. He was also convicted of second
penalty
life
possibility
parole
without
of
for
degree murder.
fifty years
capital
for the
murders of the
and,
two
jury
adults
was
becausе
un-
White,
agreed
In
commit
defendant
agree
able
upon punishment
capi-
for the
hire.
murder for
He made an unsuccessful
child,
tal murder of the
the court assessed a
attempt wherein he shot
the victim and
sentence,
life
parole
of
possibility
without
pipe.
beat her with a lead
After the victim
years.
for fifty
home,
recuperated,
her
defendant entered
then
sexually
bound and
ravished her and
Holmes,
In
his
defendant stabbed
sixteen
by cutting
throat
ear to
killed her
her
from
year
sixty-four
old victim at
least
times
neck, nearly
ear and the back of her
sever-
instrument,
pick
with an ice
an
like
exam-
ing
body. Defendant
her head from her
ple of extreme torture and cruel death.
It
capital
murder and the
convicted
imagine
hard
worse death for a
pa-
jury
imprisonment
life
without
assessed
teenager. Defendant had twice announced
years.
fifty
role for
victim,
his
saying
intention to kill
even
Jensen,
safe
going
by stabbing
that he was
to do it
In
robbed the
defendant
pick
victim with
He then
sixty
an ice
some
odd
the restaurant where he worked.
cases,
depravity and
all of which involved
to make
premises
proceeded to ransack
wantonly horrible
outrageously
or
but
conduct
appear
burglary
had occurred
it
distinguish in a
manager.
do we
or inhuman? How
surprised by the arrival of
case,
where the death
way this
unavailing attempt
principled
an
to dissuade
After
circum-
aggravated
defendant
on the
manager
calling
police,
from
is based
depravity
was convicted
the murder “involved
shot and killed her. He
stance that
jury
pun-
thereof it
capital murder and the
assessed
that as a result
of mind and
parole
or inhu-
possibility
wantonly
at life without
horrible
outrageously
ishment
or
Mitchell
years.
man”,
Is the
fifty
for
from those above?
Williams,
Downs,
or
case,
Royal, or
or
or
Chandler,
defendant was convicted
In
Baskerville,
or Strick-
Bostic,
or Holmes
or
im-
jury assessed life
capital murder. The
or
Hudgins or White
Ingram or
land or
fifty years.
prisonment
parole
without
de-
or Borden
less
or Chandler
Jensen
two others went
The facts were that he and
wantonly
outrageously
less
praved or
night.
to the law office of the victim at
case?
present
than the
horrible or inhuman
gun
on the victim and
Defendant held
affirma-
cannot be answered
question
That
Then,
shooting
money.
than
took his
rather
tively, my opinion.
attracting the atten-
possibly
the victim and
outsiders,
tion of
defendant first stabbed
state, we
Supreme
Court
As
(to get
the victim in the stomach
defend-
examine the sentence
obliged by law to
are
away
protecting
ant’s hands
from
it is not exces-
to make sure that
of death
was im-
throat) and then while the victim
im-
disproportionate
sive or
him,
kill
ploring
not to let the man
God
jury is not
in similar cases. This the
posed
deliberately
defendant
cut
the victim’s
do. If Newlon’s death
required or able to
throat.
affirmed,
being marked for
he is
sentence is
randomly
one
selected
Borden,
wife,
capriciously,
failing
after
whose
group
murderers
from a
period
over a
of several months to induce
greater depravity
equal
are of
having
crimes
man with whom she was
thereby permit
will
than his. We
job,
affair to do the
her husband
executed
penal-
accomplish what our death
verdict to
shooting him with a sawed-off .22 caliber
application
supposed
watching
ty
rifle while he was
television.
review
avoid—
arbitrary and
penalty in an
Their two children
in the of the death
present
were also
man-
contrary to the
capricious
house. Defendant
paramour
had her
strike
manner —
and the decisions of
up
her and tie
date of our statute
attempt
children in an
The Su-
Supreme Court.
suspicion.
divert
Defendant was convicted United States
Oklahoma, su-
Eddings v.
preme
Court in
murder and the
fixed the
mandate, stating that
punishment
pra,
reaffirmed
imprisonment
life
without
reflect “the
the decisions of the Court
possibility
parole
fifty years.
capital punishment
insistence that
Court’s
just
murdera in the ten cases
reasonable con-
imposed fairly, and with
described constitute a veritable “chamber of
*24
at 875.
at all.” 102
sistency or not
S.Ct.
horrors”. The instant case falls far short
Culberth, 390
So.2d
(many
these
murders
of which in-
The court
torture,
(La.1980)
the defendant’s
victims)
reversed
multiple
volved
in terms of
resentenc-
and remanded for
suffering, nature of death sentence
duration of the victim’s
killing
guilty of
wounds,
was found
pain
ing.
Defendant
agony,
or infliction
that
The state asserted
young woman.
suffering. Yet in not one was the death a
on the
of five stab wounds
proportion-
“the infliction
penalty assessed. Where is the
hei-
especially
constituted an
principled helpless
victim
ality
consistency
or the
or
killing.”
nous,
manner of
atrocious or cruel
by
we can declare that the
manner
court,
holding that
us is
Id. at 850. The
sentence of death in the case before
support
not
submission
when com- evidence did
disproportionate
not excessive or
circumstance, stated:
pared
penalty imposed
to the
in the above
was,
ing.”
shotgun
The sawed-off
most
Obviously, it was not intended that all
category,
weapon,
weap-
murders
fall
in this
it
a
definitely,
even
a lethal
but
though
murder, itself,
kill,
it can be said that
on used to
not
to torture.
Its use
heinous,
is a
atrocious and cruel crime.
bloody, gruesome
results
in a
scene as
concept
We have stated that
of hei
by
photographs
shown
entered into evi-
necessarily
nousness must
include “some
7, 8,
9).
by
(Exhibits
the state
dence
pitiless
idea of torture or the
not, however,
infliction of
“depravity
This does
reflect
unnecessary pain on the victim.” State
any
any
of mind”
more than the use of
English,
(La.
at 823
weapon.
[367
principal opinion
So.2d] [815]
[
other
The
would
1979)
necessary
a
Such
construction is
].
supply “other
that
by pointing
facts”
out
protect
to
the statute from attack on
single
shotgun
this was a
action
and thus
grounds
vagueness
and overbreadth
required reloading.
gun
simple
is a
provide
and to
adequate guidelines for
load,
self-ejecting weapon, easy to
those
sentencing process.
involved in the
most,
require,
would
at the
a few seconds to
Florida,
Proffitt v.
fire and reload.
(1976).
Whether we 1) conclude the evidence does probability tence”: “there is a that support imposition not of the death defendant would commit criminal acts of or disproportionate the sentence is continuing violence that would constitute a crime, the death cannot be im- 2) society” serious threat or “that his posed. Culberth, killing As in this was a committing conduct the offense for kill, with intent to not with intent to maim charged outrageously which he stands or recognized by prose- wound. This is vile, wantonly horrible or inhuman in in closing argument argued cutor when he torture, depravity mind it involved that Newlon shot Mr. Dave a second time aggravated battery to the victim.” or an nobody identify “to make sure would live to I am un (Supp.1981). Va.Code 192-264.2 principal opin- him in the Courtroom.” The agree principal opinion able to with speculates ion the second shot fired was to “strikingly similar the facts in Turner are corpse, mutilate the but there is no evidence Turner, during the to these before us.” this, support theory nor was such robbery, people a held four hos course of prosecutor jury. advanced If officer) (including police in the store tage, truly killer were motivated a desire period for a short of time. He shot mutilate, he would have fired the second head, wounding not in- the him but owner face, shot into the deceased’s head and the hos fatally, and then talked to one of his shoulder. tages. hostages escaped after Two of the which Turner told the officer that he was
“The instantaneous death of victim as set going to kill the owner because he had being gunshot, result of al- killed off an alarm. Turner then fired two shots though (no gruesome the scene of death be Additional at the owner which were fatal. other appearing), facts does not constitute torture, ly, history Turner had a of violent crime.6 aggravated battery depravity malicious maim State, He had been convicted of supra, mind.” Hance v. 268 S.E.2d case, ing, escape, wounding, unlawful malicious In this there were “no other *25 wounding, degree second murder. Id. appearing”, facts other than the character- and ization The defendant ar prosecutor principal opin- the n.11. S.E.2d ion the “execution-style gued support this was an kill- that the evidence did not larceny. glary, stealing prior 6. Newlon did not. His crimes were bur- Sanders, stated United States As was the court response, condition. In “vileness” (8th 1976), “Prose- head, Cir. the to the F.2d stated that initial wound foul not death, blows but may the was an strike hard was not cause of cutors which added, But, battery. it aggravated ones.” the Turner’s crime not meet if did
“[e]ven set all, arguments Most, the if not of standard, the death imposition ‘vileness’ of Our objected to. forth, were not infra permissible the would be under penalty 565.014, deter- however, is to under duty, at 45. The ‘dangerousness’ standard.” Id. im- the death sentence mine whether pointed out that criminal court defendant’s prej- “passion, the influence of under posed we “is one the most extensive record ab- The udice, arbitrary factor.” or other of the provision have reviewed” under this us relieve objection does of an not sence clearly Id. at This case statute. inde- duty our own to make affirmative the 1) jury two stat- distinguishable: the found ab- mere the appraisal, nor does pendent circumstances; 2) the utory aggravating nature objection change the an sence of history in Turner of vio- defendant had a jury. the upon its said and effect what was not; 3) which lent crime Newlon did I which prosecutor the The remarks “dangerous- opinion mainly the relies on the They were not casual remarks. below refer circumstance, which is aggravating ness” jury, the imprint make on made to relied aggravating not the circumstance the reasons a death verdict for to obtain upon here. a death permit We should not advanced. argu- illegitimate to stand where
verdict major prosecu- the part ment formed IV jury. to the appeal tor’s addition, I the death would reverse be- resentencing sentence and remand for First, argued that the prosecutor the imposed cause the sentence of death was it penalty because impose death should prejudice, influence passion, under the our under imposed previously not been had factors, 565.014.3(1), arbitrary and other statute, clearly penalty death present generated jurors by in the minds of the constituting no non-statutory ground and improper provocative words of defendant why reason legitimate prosecutor. prose- I must conclude that the fo- argument singled out. This should be overstepped permissible cutor all bounds of penalty making use the death cuses pas- argument injecting appeals to used, not on has not just yet because it been peals for return of death reasons sions and erly aggravating circumstance or circumstances and for ABA Standards dards In so (c) (d) ments argument from be assessed prejudices 3-5.8(c) doing, foreign its no other calculated prejudices prosecutor prosecutor duty statute that death only reason. Section the clear mandate of (d) prosecutor to inflame the death sentence decide would divert Criminal of the if there is should not which jury. should the case on jurors state: Justice, refrain violated a sufficient use can passions 565.012. argu- prop- Stan- from our ap- for jury’s sense of its less” reason age to do Do first got the death there? None. death row you have As sure Second, appropriateness for [******] one, to demonstrate asking them as he sits know sentencing so. if in this you put him on death prosecutor appealed guts penalty, how Mr. Newlon will wanting there, to do State? many people to return they had but Rayfield not a it. he doesn’t how to seem None. We’ve justifiable many are the cour- to death. Newlon. are on death “gut- think row. courage evidence, hope I have the again, than by injecting issues broader Once penalty] be- un- guilt the accused do that innocence of [return controlling tough. it’s der the law. cause
Third, Judge going The in his prosecutor the misstated the law instructions is you by arguing ap- you that the death tell that have two choices. . . . propriate you can’t come to a unanimous deci- solely because the defendant had [I]f murder; sion, sentence, impose he then will capital been convicted of that be- parole will be a life sentence without for cause he had killed someone he deserved in Now, years. you I want to understand argument, return to die. Under this the Judge Ruddy required by that is law to jury urged guilt is to look than no further Now, give you that Instruction.... capital murder. This is not the law. ishment. life years not be cumstances. bilities do not' constitute change the was no assurance the than life should because assurance of that at all. years? say it can’t be commuted. There’s no law. All it says do [TJhat’s had been done? ... At the wrong with that. it submit else out in the if it doesn’t deter crime by Newlons’ Fourth, what an get what, deters or der the ultimate Now, But, if somebody guilty imprisonment doesn’t, eye [*] would never be an anything commuted. These impose he deserves and that’s an there are if I and tooth for a tooth” without submit, have that he’ll be there the latter were selected there law or that the sentence life, not, [*] Under this line of big you, legislature prosecutor argued other the death and doesn’t deter but let me have deal . . . what assurances without community questions [*] this is all is no parole is crime, why it than death? simply given legislature parole. [*] there is speculative possi- could appropriate pun- aggravating for parole say оn whether it —what very about, fifty years, should this to [*] taking change argument, might not present It doesn’t for Rayfield “eye worst, nothing anyone rather might and I that’s harm [*] mur- fifty fifty jury they you: Mr. cir- for if ishment to consideration of improper arguments, factors. These cient to warrant consideration of its bearing on the reverse the death sentence. have verdict greater importance is the conclusion Section 565.012.5. The when we many other horrible thorities decide ed to have. This basis that it is on the evidence before trial penalty, under decision Court. must review it and Now, mean that life, and not death. personal in no Rayfield should be. Sixth, jury affirmed on procedures. question by directing way an if may compare stage issue you say feeling aggravating is reviewed Newlon’s taking is meant to indicate his Honor’s prosecutor sought temper verdict, So, before the possible was whether arguments appeal this Judge The full as to what the sentence don’t arbitrary statutorily appropriate punishment he deserves the death their diverted the punishment their verdict if he imposition sufficient responsibility jury prosecutor, by these law, Judge Ruddy circumstance suffi- them, not on the where the in this case feels interpret they attention to jury agrees, and emotional reviewing had a direct murder to the But, of even defined murders we were intend- supposed at the there was to relieve reason to jury should be of death. Supreme later on. then punish- for its from that, duty pun- post au- Fifth, the prosecutor sought inject possibility life without ment assessed was implication death, judge’s per- parole fifty years, as to what the trial the death feelings sonal disproportionate penalty were about what sentence is a punishment explaining particular should be for this ostensibly particular assessed crime and killer, defendant, what law was if the could not even if he were the actual decision, arrive at a know leaving especially unanimous but so when we cannot the impression judge that if the trial had whether decided his way accomplice. the sentence triggerman would not be life: or the
I would reverse the death resentencing.
remand Missouri, Respondent,
STATE of GARRETT, Appellant.
Gerald Duane 62482.
No. Missouri,
Supreme Court
En Banc.
Feb. 1982.
Rehearing Denied March