*1 Missouri, Respondent, STATE of OLINGHOUSE,
Walter Richard
Appellant.
No. 61216. Missouri,
Supreme Court
En Banc.
May 1980.
Rehearing Denied June 1980. *3 Lebanon, Wilhite, appellant.
David E. Ashcroft, Gen., Atty. up John M. Mor- and the other two men drove John ris, III, Gen., Atty. City, Asst. Jefferson entered. Demands of Frazier house and respondent. were a blow to the head with accented rifle and kicks to the the butt of a M-16 WELBORN, Special Judge.
ROBERT R. body by all four men. Appeal judgment from of conviction of thoroughly ransacked dur- The house was murder, with a sentence of life im- ing or so that the intruders the two hours prisonment without possibility money they They were there. took years, upon jury entered verdict. found, silverware, jewelry, gun collection 15, 1977, Sunday evening, On May four and other items. men, appellant Olinghouse, Walter Richard one the four foray Near the end of the Thomas, Danny David Dewaine Thomas Wickie, at “Hey, called: come and look *4 driving and Richard Johnson were around Olinghouse was known the nick- this.” in Hickory County. All four were armed. made name “Wickie” and the remark was A robbery of the Fraziers was discussed. lying near where Mr. Frazier was on years, For Olinghouse par- several and his floor. adjoining ents had lived aon farm rec- Appellant feared that Frazier would farm, Frazier between Stockton and Hu- his nickname. ognize him from the use of mansville. Olinghouses The had moved anything Frazier said that he hadn’t heard years from their farm several previously, but the men were not convinced and con- appellant but had been at the Frazier house cluded would be killed. on numerous that Frazier they occasions before moved. companions He told his the Fraziers Frazier, The and bound loot was removed kept money lots of at their house. blindfolded, and was shoved into the rear of vicinity men drove to the automobile, parked near the house. Frazier farm. Johnson and Dewaine Thom- appellant got Dewaine and in the Frazier house, as carrying plastic walked to the got into the Danny auto and and Johnson jug. milk When Frazier Mr. answered their they Johnson in which had driven Chevrolet door, pounding they at the they said were farm. gasoline out of and asked whether he could The two automobiles were driven to the supply them with some. Frazier went out- River, Caplinger Bottoms of the Sac in the side plastic and filled the container vicinity Caplinger Mills. Frazier was gasoline from a tank. As the re- three placed carried from the car and in an area house, turned toward the Thomas and John- camp gasoline of an old fire. The he had pulled son guns their and announced a hold- De- given poured the men was on him. up. Frazier asked his wife to let them back twice with a waine shot Frazier in the back house, in the saying guns. that the men had 20-gauge shotgun. Johnson shot sawed off opened She the door and the men came in pistol Oling- and Frazier with a .32 caliber and threw Mr. Frazier to the kitchen floor. Danny with a Thomas house shot him .38. Mrs. Frazier had a pistol .22 in her hands Danny fired three to five shots at Frazier. she but did not know how to use it and it then threw a match toward Frazier and was taken from her. gasoline ignited. bound, gagged Mrs. Frazier was and Dewaine’s Johnson and Dewaine drove to blindfolded. The men demanded to know Olinghouse Danny house in Gerster. money where the was and were told of joined shortly the loot from them there places, amounting small caches in various was removed from the automo- robbery gave a few hundred Frazier dollars. Mr. biles. them his billfold. He too was bound and
blindfolded. left, Mrs. Sometime after the robbers blindfolded, neigh- and went to a
After Mr. Frazier had been Frazier freed herself He porch light signal the back the sheriff was called. flashed bor’s and reached the Frazier house at around 4:00 informant.” He “confidential com- plains A.M. A search for Mr. Frazier and the the failure to disclose the identi- begun. ty Frazier auto was around 4:00 informant deprived At the confidential P.M., May hearing, Frazier was him of a preliminary automobile fair viola- vicinity requirements in the process discovered Gerster. tion due constitutions, and federal and state that the Johnson, appellant Danny had en- restriction of his cross-examination of the Floyd early tered Weaver’s house in Gerster right witness denied him on this matter Weaver, morning May on the 16. John- against guar- him as confront witnesses cousin, Entry son’s at home. anteed and federal constitutions. by state gained through a window. Sergeant hearing, At the preliminary Sel- Johnson left the area at around 11:00 vey Highway Patrol the Missouri State A.M., accompany May his mother on a that, working he was May testified on thereafter, trip Kentucky. Shortly a rel- on the Frazier case and that “confidential ative of Johnson’s told officers that some of Johnson, Thomas informant” told him persons robbery involved in the Frazier were involved in the Frazier were at the Weaver house. around 2:00 At case, shot that Frazier had been and that P.M., a number of officers surrounded the in the the three could be found Weaver men occupants house and called for the to come objected house in Defense counsel Gerster. so, gas they out. failed do tear When *5 testimony to what the “confidential about Danny emerged was used and object- witness and informant” had told the were under placed arrest. prevented ed he was from further when called The FBI had been into the case. regarding the witness cross-examining to in- Appellant Springfield was taken identity “confidential informant.” terrogated by agents troop- FBI and state statement, eventually ers. He made a ad- deciding, Assuming, without in mitting participation his the crime and would invalidate this such a matter as leading discovery officers to of Frazier’s was hearing, appellant entitled preliminary body. ground. to no Under the rule relief on this Wandix, 590 laid down in State S.W.2d charging Olinghouse An information 82, 1979), (Mo. the informant in banc capital 85[3] was filed in murder the Cedar Coun- position this case in a to offer was not ty The case taken on Circuit Court. was to testimony and crucial the de relevant jury change County. of venue to Laclede A with fense and therefore the state could in guilty trial there resulted a verdict of of hold her identity. capital murder. It was may that the informer be noted
I
of
identified
the trial
the case
well before
identity
her
protecting
and no
of
Motions to Dismiss Information
arose then.
assigns as
the trial
Appellant
error
Appellant’s
dismiss the infor-
overruling
court’s
of several motions seek-
motion to
he was arrested
upon
grounds
which mation
ing dismissal of the information
on the
by
was overruled
he
tried. He moved
dismiss the without a
was
to
warrant
assigned
grounds
ruling is
as er-
information on the
that he was
trial court. That
am-
Appellant argues
a fair
hear-
ror.
that there was
right
preliminary
denied the
to
a warrant for his
magistrate
ple
conducted
time
obtained
ing because the
who
to have
of
.require
wit-
were informed
hearing
refused to
state’s
arrest
the officers
after
his
identity
his
and that
warrantless
divulge
person
nesses to
whereabouts
violated his
which led to arrest
circumstances
provided
who
information
such
Amendment to the
appellant. Appel-
rights
arrest of
the Fourth
the location and
under
He also
complains
permit-
that he
not
Constitution of the United States.
lant also
was
proba-
was without
regarding
contends that his arrest
ted to cross-examine witnesses
Missouri,
III,
of
upon
cause in
informa-
of Article
Constitution
ble
that it
based
upon parole in the event
that the limitation
supplied by a
informant
tion
confidential
murder had the
capital
life
of a
sentence
reliability
whose
was unknown to
ar-
549.261,
amending
RSMo
effect of
Section
resting officers.
Board
Pro
pertaining to the
of
argument
points
on these
section,
Parole,
but that that
bation and
illegal
overlooks the rule that
arrest
“[a]n
amended,
in the bill.
was not set forth
jurisdiction
not
does
divest the trial court of
subject
implication are
by
Amendments
State,
try
case. Watson v.
here in
limitation
constitutional
Moore,
(Mo.1972).”
S.W.2d
Stussie,
McNary
ex rel.
voked. State
1979).
747, 749[1,
(Mo. banc
580 S.W.2d
2]
1974).
(Mo.
banc
635[2]
below,
any event,
In
trial
as noted
court
appel
of all of
Finally,
dispose
appellant’s arrest
found
valid.
on
559.-
lant’s constitutional attacks
Section
Appellant’s
dismiss the in
motion to
mandatory
sen
he contends
going
formation
of
because matters
possibili
imprisonment
of
without
tence
life
559.011,
validity of Section
RSMo 1975
cruel
ty
years
for 50
constitutes
Supp.,
punishment
fixing the
crime
violation
fed
unusual
murder,
by
overruled
guaranties and
eral and state constitutional
complaints
trial court. He renews those
process requirements and because the
due
here,
contending
first
that S.C.S.H.C.S.H.B.
right
have the court
statute denies the
Regular
150 of the First
of the 78th
Session
or
grant probation
under
circumstances
1975-1976,
(Laws Mo.,
Assembly
General
jury
have
exercise their discretion as
408)
p.
which included Section 559.011 was
warrants
such
whether or not
crime
enacted in
23 of Article
violation
Section
harsh treatment.
III,
Missouri,
that the
Constitution of
bill
way
little in the
of au-
offers
subject.
related to more than one
The sub
He re-
thority supporting
contentions.
bill,
title,
ject of the
as disclosed
Judge
views
quests consideration of the
“ * * *
*6
punish
certain
the
crimes and
Motley,
v.
in his dissent in State
McMillian
* *
ment
therefor
The bill con
435,
(Mo.App.1976), as-
546 S.W.2d
439-441
appellant’s
tained
sections
thirteen
authority
serting
court
inherent
that a
has
complaint
in
is directed at the inclusion
the
a
whether
incarceration in
to determine
an
549.060,
bill of an amendment
to Section
punish-
particular
appropriate
case is an
1969, relating
judicial
to
parole
RSMo
v.
Woodson
Appellant
ment.
also cites
probation. The effect of
amendment of
Carolina,
280,
2978,
96
North
428
S.Ct.
U.S.
judicial
that section was to exclude from
(1976),
pronouncement
a
ever,
opinions
out
reading
acceptable
a
of these
is
a fortiori
these
discloses
testing any
some criteria for
sentence.
cases. The
could also conclude that
Punishment must not be disproportionate
person
in the
pro-
who acts
manner
which
imposed.
to the crime for
incapable
scribed
the statute is
of re-
Georgia,
584,
Coker v.
433
97 S.Ct.
U.S.
be
habilitation and must
isolated from
2861, 2865,
(1977); Gregg
65
sentence violates the
the trial court
merit and
volved is without
components
not all of the
the test of
overruling his motions to
err
did not
review
arbitrariness
used to
grounds.
on such
dismiss
evaluating
apply in
sentences
crimes
Woodson v. North
noncapital crimes. See
II
Carolina,
304,
428
at
96
supra,
U.S.
S.Ct.
Suppress
Motions
Georgia,
2991]; Gregg
supra,
2978
[at
188-89,
96
at
S.Ct. 2909
U.S.
upon
[at
are based
appellant’s points
Two of
unique among punish
Death is
2932].
statement which he
the contention that the
ments;
it is different in kind rather than
following his arrest was
gave to officers
Carolina,
degree.
North
su
Woodson v.
product
involuntary because it was
303-04,
pra,
arrest;
428 U.S. at
S.Ct. 2978
made
illegal
it was
with-
[at
an
because
We therefore hold
rights
that RSA
of his
as a
intelligent
out an
waiver
2990-2991].
(Supp.1977)
630:1-a III
is valid
exhaustion at
physical
under
result of
and mental
statement;
Federal Constitution.
and because it
the time of the
and harassment
pressure
was the result of
telephone call-
by anonymous
of his mother
important goals
“The State’s
in confin-
basis, appellant
this
contends that
ers. On
ing
life are well
someone for
served
suppress
motion
his statements
his
parole;
withholding
possibility
also
have
He
con-
should
been sustained.
is not a
ex-
sentence of
suppress
items of
tends that his motion
prisoner
termination
because the
has
under
search
physical evidence obtained
many
life,
opportunities
improve
his
been sustained because
warrant should have
culminating
pardon
with a
if he can dem-
involuntary
upon
the officer
relied
onstrate to the Governor and Council his
application
basis for the
statement
society
being
fitness to return to
without
for the search warrant.
say
a threat
to it. We cannot
the statements
suppress
Motions
legislature
make
powerless
judg-
the use
evi
suppress
and to
ment
that certain heinous crimes merit
of a search warrant
products
dence
imprisonment
without parole.”
for life
hearing held on the mo
were filed and a
In appellant’s argument this that his voluntary statements were not is based Appellant was taken then to Greene exclusively upon almost his version of the County P.M., jail. At 9:30 approximately surrounding making. circumstances their Trooper High- Missouri Woods of the However, the in this review Court is direct- way appellant Patrol saw the Greene ed at adequacy to sup- evidence rights County jail, read Miranda to him and port finding. the trial court’s appellant asked would talk to him and if appellant agreed do so and told him of to Viewing light, evidence the Frazier The interview murder. appellant showed that was arrested at Ger- Woods to an hour and lasted minutes P.M., ster May around 3:00 At 17. when he appellant terminated said was arrest, scene Sergeant Selvey of the tired. threats Woods testified that no or Patrol, Highway Missouri State read Mi- ap- promises appellant were and that made rights randa statement to appellant and peared normal. asked appellant he whether understood his rights. Appellant replied affirmatively. appellant The at day next Woods saw sergeant appellant The asked if he would Hickory County office at Hermi- sheriff’s talk replied negatively. to them and he P.M., tage. began At about he an 3:30 sergeant The where Mr. Frazier asked was which recorded on a cas- interrogation was and appellant nothing said he knew about subsequently sette recorder and transcribed. it. Woods the Miranda warn- reminded him of ings. Appellant said that he had made
Appellant was taken to an FBI office in attempts three to in touch with an There, get Springfield. presence in the of two had unsuccessful. He Commissioner, attorney but been agents FBI and a U.S. he one, I get said: “I hold of but feel requested call can’t attorney. to an He called an you’uns just need information. It attorney attorney but the come this could not see Appellant get attorney.” him. then his can’t for me an called mother wait and her of told his arrest. interrogation proceeded, lasting about two 58-page producing eventually hours and 5:32, Special At Agent Rasmussen typed appellant latter statement which FBI began interrogation appellant. He read, making each and correc- signing page produced first a Miranda statement card tions he deemed for. No threats or called which appellant permitted he read to and appellant at promises were and no made appellant presence to read. In the of Ras- interrogation time cease. requested that the agent, signed appellant mussen and another card, acknowledging that he had been upon Appellant’s here based contention rights advised of his and understood them suppression hearing testimony his at the consenting interrogation. slept he one hour in the 48 to only had tes- arrest. He also preceding 52 hours his Rasmussen testified that he conducted that, tified when was taken to the FBI he the interrogation. He testified that no permitted he was Springfield, office in promises threats leniency or were made. if he call his mother and she told him that He appellant unkempt stated that knew Frazier to “tell some- anything about tired, appeared responded but was alert and threatening body getting she was because questioning. complaint He made no According appellant, he phone being calls.” interroga- tired. In the course tion, extremely close and mother were hungry he said that was her he received from gave food information for him. obtained He the FBI concerning very upsetting to him. told Rasmussen the information with his escapade agents and his in it. about conversation He told where *9 they get him would body they Frazier’s be found the mother and told could and infor- County sheriff and conveyed mation was to law enforcement touch with the Polk him, rights he He the Miranda were read to get have him in touch with his mother. permitted to them and then he acting wasn’t the FBI was was read satisfied that them, his signed acknowledgment “I of under- quickly enough and he told am an rights. you you to do waiver of those going give standing a statement and and something protect my mom.” to the effect of Appellant would avoid According to appellant, when Woods grounds on the that his lack of such waiver given questioning started him after he had sleep knowing and fatigue precluded and FBI, appellant a statement asked his None of intelligent rights. waiver of get sleep. trooper him to let him some appellant’s was at testimony directed said he in a while “hours would little and of rights of his understanding claim of lack of questioning” Appellant followed. also tes- of such consequences or of of waiver the that, interroga- original tified after Woods’ not Ras rights. Appellant did controvert ceased, sleep tion he obtained little in the the testimony rights that Miranda mussen’s jail County persons Greene other because him, read appellant were to that the read “kept asking confined there me all these rights thereafter statement of his and * * * questions. I was pretty famous signed the waiver. the assent to by then.” He said he that was “still tired” complaint for the that his state As interrogation Hickory County at the it was in involuntary ment was because responded interrogation that he there to “to mother, injury fear of to his that duced get it over with.” is not sort of inducement which renders the appellant Rasmussen that stated denied involuntary eyes the the statement himto that he make a would statement if Mullens, 586 F.2d law. United States v. his protected. mother would be Cir., 1976); (2d States v. 997,1000[2] United Cir., McShane, (9th 1972). 462 F.2d 6-8[3] record, this the conclusion On Appellant’s simply version was that FBI judge trial that appellant’s statements to agents to local offered call authorities voluntary Rasmussen and were Woods However, report harassing calls. be fully supported by the evidence. The proceeding cause was agent he felt not state’s evidence that appellant showed was going “I quickly enough, appellant am said: rights, informed of his constitutional that give protect my you you statement capable understanding he was these Certainly threat or mom.” there was no rights force, threats, no physical and that officers, even if coercion on the promises or coercive tactics were used to accepted. appellant’s version is obtain the v. Crowley, statements. 464[9, (Mo.App.1978). 10] upon Appellant dwells the duration However, the interrogation. state’s Although appellant argues question- interrogation by the was that evidence ing by persisted the officers after he had FBI at 5:30 P.M. Evidence at began about requested right consult attorney, an officers, the trial was that law enforcement that, the state’s evidence was when he was acting upon information office, FBI taken he was first accord- of Frazi gave FBI of the whereabouts telephone attorney. ed a call an Accord- er’s were at the scene at around 6:00 body, ing attorney he call an appellant, did but the es Obviously, appellant P.M. disclosed attorney Springfield. could come shortly after the sential facts the offense questioning testified that contin- interrogation began and confession phone attorney. ued call to after interroga protracted product not the of a However, “right he also testified that af- tion. attorney, ter” he called he called his harassing mother told of calls attacks the volun- Appellant also which she had received. grounds of his statements on tariness that, illegal an ap- they product The state’s after were the evidence calls, pellant on this score is telephone argument had made the two His arrest. *10 68 to, permit- proposition that his ar intended and should have been
premised upon the
tip
to,
which the
inquire
persons
preju-
rest was occasioned
ted
of such
about
Highway Patrol received concern
against
parole system,
FBI and
dice
order
found
ing
prejudice
his whereabouts. The trial court
ascertain the existence of such
was an out
the arrest valid because there
find the
might
juror
which
cause a
de-
arrest for
standing
appellant’s
warrant
for
capital murder
rather
guilty
fendant
of
jail
County.
escape
Hickory
from
Ser
possibili-
which the
than a lesser offense for
geant Selvey
Highway
Patrol who
ty
parole
of
existed.
tip concerning appellant’s
received the
inquiry, appellant ar-
As for the second
in his
participated
whereabouts and who
ruling precluded dis-
gues that
the court’s
he was
arrest
testified that at that
time
panel
knew the
covery of
members who
for
aware that a warrant had been issued
which
of the Thomases
results of
trials
breaking jail.
appellant’s arrest
for
The
convictions, thereby preventing
resulted
court, therefore,
found that
properly
trial
or
challenging
from
for cause
trial counsel
Brad
appellant’s arrest was valid. State v.
remove
preemptory challenges to
using his
ley, 515 S.W.2d
826,
(Mo.App.1974).
828[3]
judgment
whose
panel persons
from the
States,
Albright v.
United
swers 1974). (Mo. banc 513 S.W.2d 403[4-6] the seized evidence. inquiry, respect to the second With
III interrogate the venire did defense counsel knowledge length men at as to Jury Selection against them might prejudice case which involving points raises several would have inquiry That appellant. complains He jury. selection of the disposition of knowledge as to the reached prevented trial ruling trial court’s which the event. involved in against cases others inquiring panel members counsel’s refusal say that This cannot Court they they thought whether or not knew or might well which inquiry, permit the direct capital murder. He penalty knew the dispo what question of have introduced the per- complains also of the court’s refusal to cases into in the other was made sition disposi- inquiries knowledge mit as to minds, proba a “real involved veniremen’s persons in- tion of the cases of the other appellant. bility injury” respect With volved in the Frazier death. be inquiry will ruling the first appellant argues that on inquiry, to the first objection based a related pre- considered with permit questions such refusal advise the failure to upon trial court’s panel members who discovery cluded the capital punishment mur- veniremen that that the knew included imprisonment of life against probation murder prohibition der included a probation. or parole 50-year prohibition asserts years. Appellant for 50 prosecutor, when knowledge, he This arose had he discovered such *11 69 Well, up grew we “MR. THOMPSON: the state panel, said that questioning together. went to school together and the maximum would seek childhood murder, You were imprisonment,” “life “MR. DOUGLAS: applicable. penalty was not chums then? that the death jury be request that Defense counsel’s Right. “MR. THOMPSON: parole the limitation on informed of it a-without Was “MR. DOUGLAS: denied, a mistrial. request as was his detail, did it great facts in going into erred that the trial court He now contends firearms, stabbing? involve jury pun- failing to inform the Firearms. “MR. THOMPSON: upon parole ishment included the restriction do believe Okay-you “MR. DOUGLAS: probation. or putting time might have a hard you consider- mind as far as your out of instances, appel In each of these instant case? ing the facts of this endeavoring place question lant was Well, I can’t tell THOMPSON: “MR. In probation jury. or before the sure, know, tell it is hard to you you 585, Rollins, (Mo. v. State S.W.2d 591[5] now, know. right you 1970), it the court said: “We now hold that me come back Let “MR. DOUGLAS: fail or is not error for the trial court for a minute that, about that you think parole, jury refuse to inform the that no two. or sentences, suspended any or oth probation, judicial clemency would be exer er form of * * * cised in the event of conviction. Thompson, do Mr. “MR. DOUGLAS: is extrane question clemency of future thoughts? you have further proper ous to a determination of issues No. “MR. THOMPSON: It guilt punishment by jury. put want to I don’t “MR. DOUGLAS: them.” Inas should be of no concern to you spot. on the proposed as the and the re inquiry much No, sir, no other “MR. THOMPSON: by instruction the court quest for further thoughts. related to matters “of no concern” try but would “MR. You DOUGLAS: jury, the trial not abuse its discre court did could, is that you know whether you don’t rulings. Sempsrott, tion in its v. See State fair conclusion? (Mo.App.1979); 587 S.W.2d 634-635[10] I is what That “MR. THOMPSON: Hanson, 900- S.W.2d do, try. would (Mo.App.1979). 902[4]-[7] searching “MR. DOUGLAS: But the trial court Appellant contends that you whether are not sure your you mind failing panel to strike member Ed- erred in not? could or could Thompson for cause. The voir dire die correct. That is “MR. THOMPSON: upon contention rests is as fol- which this to be I want those “MR. DOUGLAS: lows: words, mine. your Thompson, response Panel Member right. That “MR. THOMPSON: by counsel as to whether defense feel com- Okay, you “MR. DOUGLAS: killed a friend or relative had “been I said? with what fortable means,” stated that a friend of criminal Yes.” “MR. THOMPSON: in 1973. was shot at Fort Leonard Wood the venire The determination (Mr. Douglas) asked: counsel Defense for the was a matter qualifications man’s of events you “Let me ask if that series judicial of sound in the exercise trial court thinking here your would tend to color determination court’s discretion. The trial is a murder trial. today? little bit This showing a clear rejected only upon will be Yes, sir, might. DeClue, “MR. THOMPSON: of discretion. State of abuse “All doubt (Mo.1966). close of a “MR. How DOUGLAS: 57[12] finding of in favor of be resolved should friend was this? the trial court because he is in a far for a better mistrial was denied. Counsel also position permitted moved to be challenge determine a for cause withdraw and Court, that motion was denied. In this appellate than an court.” Tread trial court’s failure to declare a mistrial and way, 649[1, (Mo. 558 S.W.2d banc 2] overruling the motion to withdraw is as- 1977) (overruled as to another issue in Sours *12 error, signed appellant contending that State, (Mo. v. 593 1980)). S.W.2d 208 banc prejudiced the jury against incident so the case, In this a friend of the venireman him that he could not thereafter receive a had agreed been murdered. He that such trial, destroyed fair and the credibility and might fact thinking “tend to color here [his] effectiveness of defense counsel in the * * a little bit say He could not minds the jury, depriving appellant of a “for sure” put that he could that event out fair trial. of his mind in considering the facts of the grant The failure to a mistrial case to be tried. try He could to do so but was not error. The trial court was not was not sure whether he could or not. obliged appellant to reward for his out responses Were the of the venire McGinnis, 715, burst. v. 441 State S.W.2d man such that the trial court could not Martin, (Mo.1969); State v. 525 717[1] properly conclude that he would be a fair 804, 810-811[4, (Mo.App.1975). S.W.2d 5] impartial juror? The venireman did The request of counsel to withdraw was not state or infer that he would be unable likewise trial court’s dis addressed to the judge the fairly case on the evidence timing cretion. of the re In view of the which might he hear. At the best his an quest, abuse of has not been dem discretion feeling against murder, swers indicated a Williams, v. 594 onstrated. United States feeling not a against 1979). the defendant (9th who Cir. F.2d 1260-1261[4] was charged appel with previously murder. The of The trial court had heard pro change whether or not lant’s se motion for of counsel experience “put the could be and had had out of concluded his mind” is not determinative of the “justifiable shown with no dissatisfaction qualifications ques of the venireman. The appointed his v. counsel.” United States tion properly is whether or experi not that Hart, 1977). 162,163 (8th 557 F.2d Cir. ence produce would prejudice bias or fact of demon prior the motion does not against the defendant on trial and that ruling strate an abuse of discretion in the question simply put not as it was in the upon the withdraw made at the request to case Thompson, State S.W.2d 16 trial. (Mo.App.1976), upon by appellant. relied record, On this failure of the Appellant complains it cannot be said that grant mistrial because ruling trial court’s trial court to a was an abuse of discre inability weeping temporary Green, “continual tion. See State v. 511 S.W.2d Vonetta testify of witness on the (Mo.1974); Pride, 876-877[15] * * Frazier, *.” Phillip Frazier widow of (Mo.App.1978). S.W.2d 432-433[9]-[14] her conduct Appellant asserts that inflammatory at- prejudicial and created an IV mosphere jury was concerned as far as the Trial Incidents precluded of a fair trial. possibility After the jury had been sworn and the witness called Mrs. Frazier was the first preliminary court, instructions read of her testimo- by the state. In the course prosecuting attorney began opening cry- witness is ny, reporter noted “The interrupted statement. The statement was Twice ing through testimony.” all of her appellant pushed recess taken when proceedings stopped because were him, conferring his counsel who was occa- display. On the first her emotional causing against him to fall Ap- the bench. occa- On both sion a recess was declared. voice, pellant, sions, in a mis- loud called his counsel a moved for a appellant’s counsel son of a bitch. Defense counsel’s motion were denied. trial and motions ness, noting that the trial court nature the court the oft-noted drastic
Given mistrial, objection to the promptly had sustained the remedy of a trial court’s complains that here so in instances was not remark. refusal to do these act on his motion at the time of trial court did not error. The court’s remarks took no further ac- objections strike the answer and of defense counsel showed However, court it. the trial regarding witness’s but tion he aware behavior nothing short request here regard seriously did not it as as did defense had counsel’s and the claim error objection, of mistrial counsel. At the time of the first Again, considering relief. refusal of that had “sporadically he noted that the witness * * the trial remedy, such nature of drastic although audibly He cried of discre- was not an abuse court’s action emphasize prosecutor directed Jackson, tion. every witness that she should make effort (Mo.1974). display Upon to avoid of emotion. 427—428[4] *13 occasion, disagreed second the trial court Buel, analyst forensic for a Tom that defense counsel’s statement Patrol, Highway testi the Missouri State crying.” court witness “broke down The laboratory performed tests regarding fied only crying.” noted “some The trial court’s guns the scene and on bullets found at conclusion that a mistrial was not warrant appellant having by been used identified ed has have not been shown to amounted to In in the affair. participant and another Swindell, an abuse of discretion. State v. bullets, of the Buel testimony regarding one (Mo.1954). 271 S.W.2d Cer 536[6-9] the item was where he had seen asked tainly did the conduct of the witness in replied: “Previously Court before. He approach “stage performance” involv _” counsel’s my and also in Defense ing the prosecutor sobbing parents and reference motion a mistrial because of for deceased, in condemned Con prior Shortly af to a trial was overruled. nor, (Mo.1923), 252 S.W. cited 722[13] a terward, witness was asked similar upon by and appellant. relied again he question about two bullets and “Previously during also replied in court and The above-mentioned second inter again my Defense counsel examination.” ruption testimony of the witness’s was ac request and the was moved for a mistrial companied statement, by response her in denied. recog as whether or not she appellant’s evening nized voice on the that the appellant In this contends Court robbery. you “I can’t that tell I did-it was called attention of answers of the witness night a hell and the end-.” code- prior appellant’s toward De trials jury of one immediately fense counsel that which resulted in conviction moved fendants then, for first capital answer be stricken and out of the for murder and another prejudi- degree were therefore presence jury, told the court that an murder and the rule that evi- Appellant cial. invokes disregard instruction the statement a disposition of codefendant’s possible only would dence of the good do no and that a McCarthy, improper. case request mistrial would be effective. The However, (Mo.App.1978). S.W.2d 722 for a Appellant mistrial denied. con here involved did not refer testimony tends that the statement was so inflamma any against disposition charge codefend- tory prejudicial prevented and that it him Therefore, upon is ants. the rule relied receiving from a trial fair and that a grant mis- inapplicable and the failure to refusal of a mistrial was error. trial not error. error, appel- As authority claim Mullen, complains that Appellant lant also cites State admitting into evi (Mo.App.1975), in which the trial court erred 523-524[17]-[21] 6, a there no Exhibit .38 Smith court concluded that error dence State’s revolver, 7, portion Exhibit a refusing to declare a mistrial because of Wesson a con- prejudicial, voluntary spent a statement of wit- a .38 caliber bullet. tends that Exhibit 6 was irrelevant and sion is evident from the fact that had this 22, 1977, May that no sufficient foundation was laid for homicide occurred after having penalty, the introduction of Exhibit 7 as been the waived the death the jury state part spent a of a .38 caliber bullet. There would have been instructed as it was in this weap- capital was evidence that Exhibit 6 was the case. “If murder is submitted to the appellant jury, on had used in the for that offense and affair. testimony any of Buel was sufficient to lesser included offense submitted omitted, identify portion though a therewith be even Exhibit 7 as of a .38 must penalty caliber bullet fired from a Smith and Wes- death murder has been 2d, fact, weapon. acknowledge son The witness did waived.” 15.009. a. In MAI-CR 1.160, good there view possibility was a remote of Section RSMo procedure Exhibit 7 been fol- may had of a .32 caliber case be made for event, In no opinion bullet but he was of the lowed the trial court. calling came from a .38 caliber and Wesson. error for reversal occurred. Smith Appellant’s claims of error are without mer- Judgment affirmed. it. WELLIVER, RENDLEN, MORGANand
V HIGGINS, JJ., concur. Instruction Error BARDGETT, J., separate C. concurs By his reply brief has raised *14 concurring opinion filed. new claim of error which was not called to J., SEILER, dissent- separate dissents in the trial in court’s attention at the trial or ing opinion filed. Despite irreg- the motion for new the trial. ularities in presentation question, the of the J., DONNELLY, sitting. not plain it will be considered under the error Justice, BARDGETT, concurring. Chief 29.12(b). rule. Rule I do opinion. principal I concur in the capital The trial court instructed on for it was correct agree not however that murder, degree, murder in the first murder counsel’s deny the trial court to defense degree manslaughter. in the second request jury the be informed that punishment any The was not stated in of murder capital for statutory full sentence verdict-directing the instructions. The was not penalty in this case. The death jury guilty capital returned a verdict of attorney ad- applicable. prosecuting The jury murder. The court then the instructed seeking be the jury vised the that he would only applicable punishment that the was in this case punishment maximum available imprisonment eligibility life without for for The court imprisonment”. “which is life parole years for 50 and the foreman was informed jury the to be permit refused to sign fixing the directed to a verdict so “im- punishment was that the maximum punishment. ap so and The foreman did natural life and prisonment during ... pellant accordingly. was sentenced parole or eligible probation shall not be for December, This case was tried in 1978. fifty until he has served a minimum b., promulgated By MAI-CR 2d 15.00 2. the first Murder in years of his sentence.” 12, 1978, April instructions should have by impris- life degree punishable was is in prescribed by been the form the 6.00 onment, in that statutory the sentence but (first), Septem- series of MAI-CR effective that the first not mandate instance does pun- ber 1975. form included the Such prison. years actually be served fifty verdict-directing ishment in the instruction punishable is degree in the second Murder grade for each of homicide. to life by years a sentence of from ten However, im- should life procedure imprisonment. followed the trial court injustice imposed upon conviction prisonment did not result manifest or de- be statutory the prive degree, of a trial. This conclu- in the second fair murder that, importantly were. require fifty years not the first to ever More than law does prison. my opinion, however, if the parties be served In are entitled have the to jury punish- is be informed about the correctly if to be jury they informed are case, then be ment available in a it should about all. informed it at correctly informed and not misinformed. Certainly no one has doubt about SEILER, Judge, dissenting. the penalty imprisonment whether of life Bardgett that agree I Chief Justice probation years for parole fifty without or error, prosecutor per- it was after the is impris- a more severe than life sentence punishment jury mitted to tell the pre- without is onment the limitation. That not imprisonment, murder life it cisely why legislature enacted it and counsel inform permit defendant’s part parcel punish- of the statutory punishment was life without jury that prosecutor per- ment. In this case the probation parole fifty years. If the or impanel jury pun- mitted to reference as to the jury is to be informed de- imprisonment”, ishment-“life but the assessed, might be it must be informed right fendant was so. In refused do Bevins, 1046, 43 correctly, 328 Mo. State v. However, my this I opinion, was error. do 432,435 (banc 1931). my opinion, In preju- not believe that the defendant was prejudicial this error was defendant’s by it in diced this case and I therefore jury permitted It right to a fair trial. concur. offense available select most serious involving Earlier cases (which did) it the false belief that it under jury whether a be concern- should informed penalty severe than would result a less ing possibility probation or are proved gave prose- This to be case. apposite to In not this case. those cases advantage unfair and made cution an prohibition against peni- release from the easier to obtain the maximum conviction. fifty tentiary years was not jury system. also belittles the It treats It the particular sentence for crime. In this important jury as though it is prohibition against case the type *15 given be correct information. part release was of the sentence and did possibility clemency. refer to the of future prohibited any clemency by
The statute
way probation parole for specified or
period. Any as to doubt whether or not
prohibition against by way proba- release parole
tion fifty years, or for the first
where defendant is convicted of imprisonment,
murder and sentenced to life CRIM, Respondent, part of the sentence itself is laid to rest R. James principal opinion discussion in the concerning the allegation that the mandato- LIFE AND The NATIONAL ACCIDENT ry imprisonment sentence life without COMPANY, Appellant. INSURANCE possibility parole fifty years for consti- punishment.
tutes cruel and It is unusual No. 61899. regarded pro- clear that all courts have Missouri, Supreme Court against pe- specified hibition En Banc. fifty years riod of sentence punishment. Sept. 1980. my opinion, attorneys In the state Rehearing Denied Oct. 1980. and the defense are entitled to against backdrop the panel members of possible statutory punishment they much particular
this crime as now as