State v. Turner

Missouri, Respondent, STATE of Ray TURNER, Appellant.

Willie

No. 61974. Missouri,

Supreme Court

En Banc.

Oct. 1981.

Dissenting Opinion on Denial of

Rehearing Nov.

Thе record discloses that between 6:30 evening 7:30 on the of December 1978, the bodies of two men were discover- liquor Caruthersville, ed in a store in Mis- them, souri. One of Neeley, Pierce lying face a pool down in of blood near the front of the store bearing with a beer bottle fingerprint defendant’s body. beneath his victim, “High other William Pockets” Robbins, Defender, Gary L. Public Jack- Parker, operator, the store’s was discovered son, Kirsch, Clayton, Antoinette Walter S. supine on the a floor behind counter. Par- Drusch, Jr., Girardeau, Cape appellant. for man, large approximately ker was a 6 3 feet Ashcroft, Gen., Atty. Reed, John John height weighing inches and about 260 Gen., Atty. City, respon- Asst. Jefferson for pounds. Except bottle, for one broken dent. chips liquor racks of and shelves had not been evidencing disturbed little sign or no RENDLEN, Judge. struggle. register of a The cash and Par- Convicted on two counts of mur- emptied money. ker’s billfold had been der and sentenced consecutive to terms of autopsy An revealed Parker suffered imprisonment probation life pa- without or multiple stab wounds the chest and abdo- 565.008.1, years, 1978, role for 50 § RSMo large men and a laceration caused a defendant seeks review in this Court. The head, blunt instrument to the back of his cause falls appellate within our exclusive possibly producing a During concussion. jurisdiction V, 3, under Art. Sec. Mo.Const. Neeley’s autopsy, nine stab wounds to the allegations Defendant’s of error include: and front six to the back his torso were (1) insufficiency support of the evidence to found, scalp as well as a a laceration from convictions; (2) improper object blunt which could have caused un- hearsay testimony exclusion of to as an probably consciousness. Each man died accomplice’s against penal declaration inter- from chest wounds. est; (3) the sentences are violative of the Mitchell, wife, Johnny Frances Mitchell’s Cruel and provisions Unusual Punishment Hall, daughter, and Brenda Frances’ testi- of the United States and Missouri Constitu- 20, evening fied that on the of December tions; (4) permit erroneous refusal to 1978, defendant came to the Mitchell home permit defense counsel’s or withdrawal and about 30 left minutes later with John- personally call and examine ny, pistol. who was with a armed When witnesses. they approximately returned at 10:00 that night, Johnny gave siblings Brenda and her I. change. some Examining sufficiency Defendant, videotaped statement, in his proof, evidence, accept we as all true direct night 20, admitted that on the circumstantial, December all infer reasonable 1978, Johnny he went Mitchell’s home supportive ences of the verdict and disre Steele, Missouri, near where gard Mitchell told portions those contrary of the record Strickland, go defendant he wanted to somewhere finding guilt. to a State v. (commit 392, (Mo.banc him a 1980). robbery). “make hussle” 395 Our evidence, They left weigh house defendant’s truck function is not but driving, with rather to there to a li- determine whether was suf went Caruthersville, proof quor arriving store ficient from which the some- reasonably Mitchell, after guilty have found defendant time “dusk dark”. who was 106, charged. Kelly, pistol knife, State v. armed with and a told de- (Mo.banc 1976). 109 fendant knew the two men in the

7 store, premeditation money of a and deliber having “borrowed from them defendant’s ation; before”, instead, going the mental “was in there and bor- elements estab money lishing may proved by if be indirect row some from them and he didn’t get way going get reasonably he was it drawn one other and inferences Defendant, surrounding slay repair- one.” dressed in a blue from circumstances bearing (his ing. Lindsey, man’s outfit “Willie” State v. 507 4 word S.W.2d Mitchell, Mitchell, (Mo.banc name), 1974); first with 408 entered the store Williams, Returning (Mo.1966); v. purchased and each a beer. to S.W.2d State truck, (Mo.banc 1963); the two men waited a few min- S.W.2d (Mo.1939). Neeley leave, Page, apparently utes for but Neeley staying, Additionally, only premeditation convinced that need shown asked defendant drive around the corner to have existed moment before the park away. slaying present truck a When and is if the reflects the block accused store, any length defendant returned to the he found on his act for of time before standing Neeley, hitting acting, proved over when Mitchell him and deliberation is the gun. Neeley’s killing performed bleeding with a back was is with “a cool and delib wounds, Strickland, from Mitchell erate stab when went state of mind.” State v. sack, 392, get money (Mo.banc 1980); to behind the counter 609 394 S.W.2d State defendant, observing Neeley Marston, 481, (Mo.1972). that was at- v. 479 S.W.2d 484 tempting pull up, Neeley connection, hit to himself on worthy In this it is of mention the head with a beer Mitchell bottle. re- proof that of required direct the mental store, turned front of and he to the the too state is available and intent is seldom such bottle, Neeley struck with a breaking beer usually inferred from evi circumstantial it, again gun. then struck him with the See, Beckemeyer, dence. v. 423 State fell, Neeley When and Mitchell defendant 687, (Mo.1968); S.W.2d v. Law 688 State through alley ran from rear door the to son, 247, (Mo.App.1979). 585 S.W.2d 251 defendant’s truck. claimed Defendant he Though videotaped asserts why then asked Mitchell had killed the two partici statement demonstrates he did not men and Mitchell stated he wanted no wit- pate stabbings in the nor the kill intend nesses. After Mitchell divided the stolen ings, jury was entitled to disbelieve money, bought gas, some drove exculpatory such State v. statements. Mitchell home to his returned resi- Wilkerson, 829, (Mo.banc S.W.2d 616 835 dence.1 1981); Wade, 492, State v. 535 495 S.W.2d size, particularly complains (Mo.App.1976).

Defendant Parker’s as well as the bodies, insufficient establish location of the victims’ renders de required capital mental state was the for mur fendant’s version that Mitchell sole der, 565.001, 1978, slayer unlikely. Additionally, RSMo de highly § most it robbery, showed intent to rob supportive only an fendant’s continuation in the after 565.003, degree. dispose murder in the first § Mitchell had evidenced his interne men, support (formerly felony RSMo 19782 as of the sufficed known murder). requisite jury’s This contention misses the mark. de determination produce present. premeditation State need liberation were direct evidence 565.003, Johnny 1978, capital defining Mitchell’s RSMo first convictions mur- Section murder, degree der were affirmed this Court State v. is as follows: Mitchell, (Mo.banc 1981). “Any person unlawfully 611 S.W.2d 223 kills who another premeditated being without a intent human 565.001, 1978, provides 2. Section RSMo as fol- particular death of a individual cause the lows: degree guilty is offense of first perpetra- “Any рerson unlawfully, killing willfully, who if the was committed in arson, knowingly, deliberately, premedita- attempt perpetrate and with tion of or in the rape, robbery, burglary, kidnapping.” tion or causes kills or another being guilty capi- human offense of tal murder.” 8 v. Lindsey, (Mo.banc State 507 S.W.2d 4 Criminal Code.” The was not 1974). Further, exculpatory defendant’s required acquit murder and point statement abounds with admissions degree convict of first simply be- ing toward knowledge murder. His slayings cause the during occurred easily Mitchell and he were identifiable perpetration of robbery. robbers, as the striking combined with his Neeley attempted arise, he demon II. strates join defendant’s intention to Mitch Defendant next contends trial court planned purpose leaving ell’s no witness excluding erred in Cooper’s Michael testi- es. personally Defendant need not have mony concerning purported admissions to killing. committed the It if suffices slayings by the actual Johnny Mitchell.4 knowingly acted in concert with another for During trial, Cooper was called defense purpose the common of committing the of counsel and the following offered testimo- fense, knowingly intentionally aided (the ny: On day December follow- or encouraged committing the other in ing murders), Cooper while visiting 2.10, 2.14; offense.3 MAI-CR 2.12 and home, Mitchell, in defendant’s unaware of Strickland, State v. Cooper’s presence, defendant, said to “I (Mo.banc 1980); Lute, motherf_s.” punk-ass wasted those two (Mo.banc 1980); Grebe, State v. Seeing Cooper room, enter 265, 267-68 (Mo.banc 1970); Cooper then asked if he “knowed who wast- Taylor, 835, (Mo.1965); 391 S.W.2d 837 ed subsequent those two dudes.” On Butler, 952, (Mo. State v. 310 S.W.2d 957 occasions, allegedly Mitchell made similar 1958); Easton, 953, v. 577 S.W.2d directly Cooper. admissions The State’s (Mo.App.1979), denied,

957-59 cert. 444 U.S. objection Cooper’s testimony as hearsay 863, 131, 85; 100 S.Ct. 62 L.Ed.2d Rowden was sustained. State, 699, v. (Mo.App.1973). 493 S.W.2d 702 Hence, jury the evidence could lead the Missouri, Generally in declarations “defendant, reasonably acting infer alone or against penal interests are not admissible in concert ‘unlawfully, with another willful exceptions the hearsay rule in criminal ly, knowingly, deliberately, pre and with See, proceedings. Brown, State v. 404 Neeley meditation’ killed” Pierce and Wil 179, (Mo.1966); S.W.2d 185 v. State Wil Strickland, liam Parker. State v. 609 liams, 155, 427, (1925); 309 Mo. 274 S.W. 433 392, (Mo.banc 1980). S.W.2d 395 Hack, 1089, 92, State v. 118 Mo. 23 S.W. (1893); Ivicsics, 1091 State v. jury’s Finally, determination 773, Grant, (Mo.App.1980); 780 State v. 560 guilty that defendant was of 39, (Mo.App.1977).5 42-43 Never by invalidated fact the evidence theless, relying (felo Mississippi, on supported degree would have Chambers first conviction, ny) this, 93 35 L.Ed.2d U.S. S.Ct. nor does as (1973), suggests urges, barring “the statutory thwart by such was Legislature scheme enacted the Missouri evidence violative the Due which Process Clauses of the and manifested its intent that so-called United States longer ‘felony no murder’ would be treated Missouri Constitutions and that after capital offense, Chambers, designed as a unqualifiedly when it we should admit Sec 565.003, 565.001, against tions penal and 565.008 declarations in crim interests jury by jurisdictions recognized, 3. The was instructed in MAI-CR 2d 15.02 5.Even where exception requires modified 2.12 MAI-CR and 2.10. as an essential element that improbable a mo- the circumstances render unavailability Johnny requi- 4. falsify See, Mitchell 31A Evi- tive existed. C.J.S. purported site to the of his 217; 804(b)(3). admission declara- In other § dence words, Fed.R.Evid. аgainst tion interest when established hearsay must bear sub- statements testify Mitchell refused to ing when called assert- stantial ‍‌​​​​​‌​​‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​​‌‌​​​​‌​‌​​‌‌​​​‌​‍assurances of trustworthiness. privilege. his Fifth Amendment Grant, (Mo.App.1977). excluded, Chambers, requiring such circumstances how inal cases. The Court hearsay missing here. are ever, Id. at admission explicitly refused to so hold. trial, Further, testify at defendant’s 1049-10, When called to 302-03, 93 at S.Ct. refused, asserting Johnny his Fifth distinguish present case be the facts was una- privilege, and thus Amendment “hearsay statements involved cause the credibility. Nor was vailable for a test sub originally were made and [Chambers] corroborating to insure the evidence there sequently trial under circum offered purported of his declara- trustworthiness assur provided considerable stances Equally important, the statements tions. reliability.” their Id. at ance of were not inconsistent with themselves There, each declaration was at 1048. 5.Ct. guilt. showing of defendant’s Defendant spontaneously acquaintance made to a close placed himself at the scene and admit- had substantial, was corroborated other planning perpetration part in the ted including reliable evidence declarant’s Hence, Cooper’s testimony the crime. confession, testimony eyewit of an sworn conviction, might have aided the for if from crime, ness to the evidence that declarant believed defendant other evidence gun immediately with a after was observed accomplice, statements es- guilty as an murder, proof prior of declarant’s complicity “princi- tablished Mitchell’s ownership gun weapon like the murder not, pal.” proffered did as in weapon. subsequent purchase of a new Chambers, perpetra- exclude defendant as Further, (three) number of statements by implicating Mitchell as an unabetted tor independently persons to different made murderer. obviously and the fact that declarant highly aware that each statement was self- dangers We also observe that inher incriminatory unquestionably against extrajudicial opening the door to ent (after relating interest his involvement party one not a to thе confessions made witnesses, proferred urged one of the against extending proceeding6 militate complicity witness not to reveal his to oth beyond present the facts rule of Chambers ers) provided additional corroboration. In See, State, Taggart v. 269 Ind. ed there.7 addition, the cross-examined declarant was 667, (1978); 916 Ramirez v. 382 N.E.2d State, by and his credibil State, demeanor and (Tex.Cr.App.1976); 543 631 S.W.2d 300-01, ity by jury. Smith, (Me.1980). considered Id. at v. 415 A.2d 553 See State Yates, also, 21, (Mo. 93 S.Ct. at 1048-1049. 442 28 State v. S.W.2d 1969). Chambers, While in a case such as where reliability appear complains reversal

substantial indicia Defendant further complicity required holding if true would exoner- of Green v. declarant's under 2150, accused, 95, 60 Georgia, declarant’s averments 442 U.S. 99 S.Ct. ate (1979), that exclusion of similar against penal may in nature not L.Ed.2d 738 an interest perjury example as A not “If the could be convicted of did 6. An will serve to Illustrate. trial, oath, testify changed, charged at his first B did not lie under A with the rule were could be testimony.” and D were truthful in their crime; seeking and C [possibly B tell D could C and 301, Mississippi, id. 410 U.S. at 93 Chambers v. reputation criminal or to exonerate to build his at 1049. S.Ct. crime; gо B could that he committed the A] hiding D would into and at A’s trial C and emphasized Supreme 7. Itmust be testify guilt; be as to B’s admission of A could process had been determination due Court’s trial; acquitted B and B would return to stand Mississippi from the court’s denied stemmed testify provide could then several witnesses to (1) permit the defendant combined refusal crime. to his at the time of the as whereabouts testimony witnesses re from the three elicit along testimony of those witnesses with extrajudicial specting confes the declarant’s really committed the A’s statement that he (2) impeach the declarant who sions and acquittal. be result in B’s A would crime could by repu the state had under cross-examination prosecution further because of barred from protection against prior Chambers his sworn confession. diated jeopardy. one 302, double No Mississippi, 93 S.Ct. at 1049. v. id. evidence,8 proffered during punishment III. trial, phase of constituted denial of due Defendant next imposi asserts that process. Certainly statements, such cloaked mandatory of a tion life sentence withоut safeguards with the trustworthiness probation parole years, pursuant for 50 Green, pertinent found in be to the 565.008, 1978, to § RSMo violates feder punishment; however, issue of case al and proscriptions state Constitutions’ judice, sub not only Cooper’s testimony against punishment. cruel and unusual during punishment not offered phase U.S.Const.; Eighth Amendment, I, Art. proceedings, defendant’s bifurcated but its 21, allegations Sec. Mo.Const. These have exclusion could preju- not have been found previously been addressed and determined dicial as defendant received the minimum contrary to the contentions here and re punishment mandated for murder. quire protracted See, no discussion. State Finally, defendant claims unfairness Borden, 88, (Mo. v. 605 S.W.2d 92-93 banc Cooper’s the admission testimony 1980); Olinghouse, 58, State v. here, Mitchell’s trial and its exclusion but in (Mo. 1980); 63-65 Higgins, banc v. arguing ignores so defendant a fundamen (Mo. 1979), 155-56 banc tal Cooper’s testimony distinction. was ad dismissed, appeal 446 U.S. 100 S.Ct. against mitted proceeding in a (1980). 64 L.Ed.2d 254 Mitchell, declarant, where inwas court testify and could choose to Coop to refute case, er’s In present Cooper’s claim. IV. against was offered the State Finally supplemental contends in which could testify not force Mitchell to brie f9 the trial court erred testing hence had no means of failing appoint substitute counsel as re truthfulness alleged Mitchell’s state quested by defendant and his trial attor ments. It is a well established of trial “fact neys, denying defendant’s Sixth and Four may life” that certain items rights, teenth Amendment and that the tri party yet

introduced one 95, 99, Georgia, refusing permit another. Green al court erred further U.S. 2150, 2152, (1979) S.Ct. 60 L.Ed.2d 738 personally examine alibi wit J., (Rehnquist, dissenting). nesses whom counsel had refused to call. justice In the criminal context denial of process due has been described as the fail ‍‌​​​​​‌​​‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​​‌‌​​​​‌​‌​​‌‌​​​‌​‍ A. ure to observe the fundamental fairness trial, At represented by defendant was justice. very concept essential Gary attorneys, Robbins the Public De- Caffey, (Mo.1969), Fowlkes, appointed fender and John court denied, 853, rt. 396 U.S. 90 S.Ct. ce 1979, 23, counsel. On October Robbins 114, 24 No proc L.Ed.2d 102. want of due withdraw, for moved leave to followed a ess said can be to flow from the trial court’s appoint to “motion defendant his own permit

refusal defendant to solicit this counsel” chief submitted Fowlkes on hearsay testimony. U. Oc- Hughes, S. v. 529 29, 838, (5th 1976). pretrial hearing F.2d 841 tober 1979. A on Cir. Defendant’s these contention is disagreement denied. an motions revealed earlier was, urged counsel, see, 8. The evidence in Green unlike assistance of trial v. State Mitch- bar, exculpatory ell, at (Mo. 1981), in that the declaration 620 S.W.2d 347 banc we will placed petitioner away from the scene complaints urged review the in the instant case time of the murder. represented by where is defendant different allegations transcript for counsel these and the portion appeal 9. On this of his defendant was provides complete a record of trial circum- Drusch, represented by Jr., S. counsel Walter complains. stances of which defendant now See, specially appointed to raise here defendant’s Banks, 390, State v. 216 532 Kan. P.2d allegations of his with difficulties trial counsel. (1975). 1058 normally While we do not consider a crimi- appeal nal claim defendant’s of ineffective

H attorneys, stem- substitute once trial has between and Ms counsel commenced defendant discretion, ming present an from defendant’s desire within the court’s trial sound connection, In tMs defendant alibi defense. tempered by public’s need effective for indicating to Robbins he had no had written justice, administration of and this discretion attorney. Robbins as his Fol- confidence in especially will disturbed when lightly not be hearing the lowing the testimonial motions appears accused denied was not pretrial At a confer- were denied. second competent representation. skilled and 11, ence, 1979, a motion for on December 798, (Mo. Gregory, v. 595 800 S.W.2d State on De- leave to withdraw filed Robbins Lee, 180, App.1980); v. 521 S.W.2d 7, accompanied “pro by a se motion cember (Mo.App.1975). 182 An accused is not enti [prepared by to remove the Public Robbins] particular attorney tled to a as a matter appointment of Defender and for new coun- right, may nor work a constitutional se”, proceed pro sel оr in the alternative to by discharging lawyer continuance his with was also denied. Jefferies, justification. strong out State v. now “both the Defendant maintains de 6, State, (Mo.1974); Evans attorneys wanted to be fendant and (Mo.1971). find no We relieved from each other and made their abuse of discretion. Court”, clearly wishes known to the how ever, present the record belies the assertion B. of irreconcilable conflict. It has been said that “An irreconcilable exists court conflict where Defendant also claims trial appoint there is a total breakdown communica failing error in substitute counsel ”, attorney tion between and client ... at the close of the State’s case when it was Smith, (Mo. State v. again brought the trial court’s attention showing App.1979), no such has been present that defense counsel refused to Indeed, hearings made here. at both de proposed alibi defense. After some discus relationship fendant indicated with his sion, dispute, judge the trial resolved the good. attorneys hearing, At the earlier ruling might testify defendant in narrative letter, rеpudiating his defendant stated that propound ques form if counsel refused to Robbins, willing coop he trusted and was tions, permitted but would not erate and follow counsel’s advice if he personally elicit from witness appropriate. deemed it At December es. We can basis for in this find no reversal hearing, 11th he wanted stated of what witness action. determination him, represent Robbins and Fowlkes to call, questions involving es to like other dispute their sole centered on whether de pursue, defenses to was a matter of trial testify. Considering fendant should this and, strategy represented as defendant was testimony, court appropriately conclud counsel, by able decision best left existed, particular problem ed that while See, province. within their American Bar willingness defendant had indicated a Justice, Association Standards Criminal join counsel its resolution. Function, (2d The Defense Standard 4-5.2 Banks, 1980); ed. 216 Kan. contrary Also to defendant’s as (1975). P.2d court’s sertions, 1061-63 trial the record reveals defendant did ruling permitted that defendant would be express not а desire counsel for new until testify to 12, 1979, in narrative form constitutes December the date trial com compromise, balancing well conceived an impaneling jury. menced and after constitutionally right protected accused’s to request, denied trial court defendant’s attorneys’ appoint against take the stand his obvi indicating was too late for the it granting they ous concern an at ment of new counsel. The of a for what deemed might tempt an claim.10 continuance that defendant secure to mount untenable video-taped the scene of very placed 10. It remembered that must be defendant at least defendant, by of found admissible confession the crime. challenged appeal, on at and not the trial court 12 witnesses,

Hence, faulting judge potential rather than the trial contacted defendant’s counsel, failing we appoint nothing sufficiently to substitute but to discovered sub overcoming suggested commend his efforts in a seem v. stantiate defense. Jackson ing impasse.11 State, 211, (Mo.App.1976). 214 537 S.W.2d relief, Additionally, to be еntitled de to

C. purport fendant must demonstrate how the vein, testimony In same defendant ed would have benefited him. 637, charges Mayes State, (Mo. of counsel ineffective assistance v. 589 638 S.W.2d (1) against attorneys’ App.1979). bar, based on his advice In the case at (2) alleged testifying and to call judge refusal to trial to indicated his desire prevail alibi To these testify witnesses. on asser have his wife and two sisters-in-law tions, however, must his defense, claimant demonstrate attor concerning alibi his failed, ney prejudice, to his to exercise the by statement defendant’s wife revealed she diligence customary of a skill and reason truthfully not state defendant’s competent rendering ably lawyer similar night whereabouts on the murders. existing under the circumstances. services showing appears concerning the No sisters- State, 738, Eldridge n. 2 v. 592 S.W.2d 740 regard In in-law. this defendant had made (Mo. 1979); Reynolds Mabry, 574 banc v. damaging police admissions concern 978, 1978). (8th F.2d It is settled Cir. crimes, ing his with the connection and had attempt that defense counsel’s to dissuade defense, pursued pri- the alibi these counsel more, testifying, his without client from powerful or admissions could have served as may does not fall to a level that be charac weapons prosecution. light In for the incompetency terized as violative of defend strong placing at protected rights. constitutionally ant’s scene, attorneys hardly defendant’s can discouragement in usual case Such against cogent be faulted for their advice question of trial amounts advice on pursuit Hughes of that defense. v. varying are tena tactics which answers State, 363, (Mo.1974) 365-66 State, 363, Hughes ble. v. 364- (Seiler, concurring). The as J. ineffective (Mo.1974). of counsel claim fails. sistance respect Defendant’s assertions D. ing pro call defense counsels’ refusal to posed finally complains witnesses must also fail. As in stated Defendant State, Eldridge supra 741, refusing v. “If an error the trial in attor court him ney testimony permission personally believes that the an alibi call and examine support However, unqualifiedly witness would not his witnesses. record discloses and, position, requested, client’s it is a trial strat mattеr of that defendant never fact, egy proceed not to call him to the stand.... An on occasions refused against defendant, represented pro assertion counsel’s choice of trial se. Whether a counsel, strategy respect calling may participate with call his own trial ing witnesses does not establish in is a matter within the certain sound discretion (citations Burgin, 539 effective assistance of counsel.” the trial court. State v. Further, omitted). See, (Mo.App.1976). as American Bar Association noted Justice, above, generally Standards for Criminal The De within the control Function, (2d proffer fense 4-5.2 ed. trial counsel to decide whether Standard where, 1980). particularly alleged This rule holds of defendant’s alibi Banks, here, attorneys during investigation v. 216 Kan. witnesses. State passing any prob- ethical from alibi claim would also have We note an aborted promoting perceived lems defense counsel been encountered substitute counsel. State any Banks, alleged defense or harm to defendant’s alibi 216 Kan. P.2d resulting (1975). defendant defensе counsel foresaw 565.003, (1975). being. first-degree Whereas In this § 532 P.2d 1061-63 murder, “felony” provides person a given apparent defendant’s that for framework and unlawfully willingness pretrial con- to be convicted he must kill an- manifested advice, attorneys’ being perpetration other human in the ferences to follow his we part attempted ‍‌​​​​​‌​​‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​​‌‌​​​​‌​‌​​‌‌​​​‌​‍perpetration the enu- find no abuse of discretion on the of one of refusing necessity the trial court in to allow defend- merated felonies without kill; represent- any premeditated ant to conduct his defense while intent is to say now the ed counsel. intent to commit the felo- ny first-degree suffices to be convicted of judgment

Accordingly, the is affirmed. murder. DONNELLY, J., WELLIVER, require C. and Both crimes conduct which results HIGGINS, JJ., murder, First-degree MORGAN and concur. in another’s death. however, kill; require any does not intent to J., BARDGETT, separate dissents in dis- capital specific murder does. And the in- senting opinion filed. required tent kill capital in murder must SEILER, J., sepa- dissents and concurs in be formed in a cool and reflective state of BARDGETT, dissenting opinion rate J. requirement mind. The that these two ele- ((a) (b) ments intent to kill and cool and BARDGETT, Judge, dissenting. killing another) reflective consideration of respectfully prin- I dissent. I believe the be found constitutes the difference between cipal opinion’s construction of 565.- §§ capital others, including murder all .003, 1978, ignores clear, RSMo their 001— first-degree require murder which does not unambiguous language. even an intent to kill much less cool and 28, 1975, September Prior to the first-de reflective consideration of the homicide. gree statute, 559.010, This liberty disregard RSMo Court is not at § first-degree included both “common legislature form” distinction created “felony” first-degree defining murder and murder. the offenses. Deliberation and date, premeditation After that part first-degree “common form” first-de are not gree murder, separated murder was “felony” proved from but must be and that fact first-degree designated jury murder and must be found to warrant con- “capital change capital murder”. Whether this is viction of murder. creating

viewed as one or two distinct new opinion, principal apparently recog- mеrely crimes separating long-es or as nizing the distinction between 565.001 § murder, types tablished one fact is clear: (capital murder) (first-degree 565.003 § capital murder is now a different crime murder), upholds Turner’s two mur- first-degree than longer murder. No can by attributing requisite der convictions proof of statutorily intent to commit a enu mental state of 565.001 to him. § felony equated premeditat merated to a principal gives opinion inferences to the evi- ed and deliberate intent to kill it could jury dence from which believes the could first-degree under the old murder statute. actively participated have found Turner See, e.g., Jenkins, 14,17 size, robbery killings. One victim’s (Mo. 1973); Paxton, bodies, the distance the two between (Mo. 1970). Instead, capital 923-25 any the almost total lack of evidence of first-degree sepa murder and murder are asserts, struggle, opinion principal crimes, requiring proof rate of different jury allow the to infer that Turner was a statutory elements for conviction. Thus, participant killings. it is said requires person Section 565.001 to have that Turner could have found unlawful, willing, a mental state of an killed one of the victims with the intent deliberate, But, knowing, premeditated enough in- kill. intent to kill engaging support tent to kill conviction. when conduct Therefore, principal opinion kills or causes the of another human makes Turner, quantum leap again. that to conclude with returned This time he shot and deliberation, premeditation and killed and killed the victim. No doubt he had time killing aided the the two on reflect on with victims the his act and a cool and delib requisite basis that the mental elements erate state of he killed mind the deceased. may proved by indirect and circumstan- Lindsey, (Mo. S.W.2d 1 banc by major- tial evidence. The cases cited the 1974), is only the case in which there was ity however, proposition, for this demon- evidence did that defendant not commit the strate that there is circumstantial evidence murder himself. The and defendant an ac- and then there is circumstantial evidence. complice plans to steal property. made Be- Page, (Mo. plan,

In carrying State v. S.W.2d 520 fore out the defendant’s 1939), partner got because, the killed the defendant victim —that bat baseball as he said, was going tonight.” admitted. The evidence showed that “I’m kill someone feelings them, partner there were ill Id. between and at 2. The assured he defendant money, yet going the was the defendant had no knew to use bat and defendant money agreed stealing, knowing the and deceased had knew where it to continue the partner apparently was hidden. deceased his While the intended use the bat and straw, crawling was over bales of some intended to kill someone with it. On the rob, way they defendant shot him in the head and later place going to the were Clearly, money. partner windows, retrieved the the evidence broke several demon- allowed an inference that the defendant strating going what he was to do to the planned had to kill victim so that he victims. This held: Court get money. appellant plan The continuation to rob after obtained the Maxie ball bat Williams, (Mo. State v. 369 S.W.2d 408 and announced his intention to kill some- 1963), Page. banc In similar Williams it, clearly finding one with authorized a girl. raped and killed a He requisite deliberation deposited had gun and ammunition in a . premeditation part and on appel- field. He them when he retrieved saw a participate killing. lant to in a The sub- parked car boy girl with a on the side mission of deliberation in Instruction No. of an isolated road. Defendant shot at the supported 2 was the evidence. boy, gun again reloaded the and shot —kill- ing girl him. Defendant told the to drive to added). (emphasis Id. at 4 stop. place They a certain She did. The instant is dissimilar to the case ones got out of the car and defendant hit her Although participation cited. Turner’s gun several times with the then carried robbery shown direct was evidence dragged her to a her house. He across the (his confession), participation in the kill- porch again into the house where he hit her shown, all, ings only by if circum- gun raped with the and then her. She later stantial There was no evidence. direct evi- died. Undoubtedly, circumstances evi- anyone dence that Turner killed evi- —no finding denced a basis for the defend- dence that Turner formed an intent to kill premeditatedly deliberately ant killed coolly someone —no that Turner girl. and deliberately intended to kill. There Mitchell, (Mo. In evidence that any 408 S.W.2d 39 not even 1966), it wanted to kill or intended that his also was clear defendant was someone fact, anyone. who victim. He cofelon kill In if it was one killed the contend Neeley ed that he so in the heat of blow to the head that evidenced had done evidence, kill, however, passion. great bodily an intent to harm or showed do opinion, principal the view of the then that the defendant and victim after a hats, hands, against fight very evidence “cool and exchanged had shaken militates on another. It up. and made then left. deliberate reflection” appears He minutes fired to have an action based on returned after several been principal a few minutes reflex rather reflection. The shot. He left and later than best, infer- an this would allow At victims. the ele- out of our law opinion has shaded kill, premeditation but not to virtual- of intent and it beсomes ence of deliberation ment of is devoid dur- The record meaningless in homicides committed deliberation. ly have designated felony. might Turner ing of a that the course evidence any with a cool the victim about thought argued jury to the prosecutor The majority The mind. state of and deliberate of Turner and were acts acts of one contends, however, killed that if Turner a For con- intent Turner’s. Mitchell’s evi- victims, proved by circumstantial of the murder, capital a statement such of viction dence, is circumstantial Capital re- then there only partially true. is i.e., intent, to mental personal and individual he Mitchell’s quires shared a the person concluding, state for a who or causes the kills In so leave no witnesses. death of being. had another human Turner through a creates conduit principal opinion promote to killings the both the and have enu- felony a to commit which the intent promote intent to requisite them and the to is transferred 565.003 § merated in capital intent murder in to be order premeditated and a becomes 565.001 аnd § capital guilty of murder. The only element majori- the to kill. Under deliberate intent capital of murder which can be attributed dur- a is killed ty’s victim theory, whenever one not perpetrator to the is the conduct— felony, all ing a 565.003 § the commission of act killing;1 the of the intent kill capi- be convicted of participants the could the deliberation on it imputed. cannot be instance, during course tal the murder. For Any suggestion by the state principal or the store, of of the robbing liquor one robbers a opinion contrary to the is incorrect. Other- participant kills an employee. other wise, specific if the mental state the gun. partner carrying knows his a loaded is perpetrator given can be to the accessory, expressed premeditated Whether it is as a there is first-degree no need for murder in intent and deliberate as an intent kill or which, directed, legislature the has one can witnesses, leave no there circumstan- be guilty found of murder without any in- the tial felon had evidence that the second Instead, tent to kill. prove the state could trig- pulled same who the intent as the one the murder) elements of one crime (felony ger, complete robbery successfully the punishments attach it the authorized caught. and not be higher for the penalty offense —death imprisonment life probation without pa- principal opinion by demanding a fifty years. role for Clearly, such situa- qualitative proof cap- difference in between tion is in legislative contravention of man- first-degree ital murder and is im- perhaps dates. But equally clear, plicitly allowing of all convictions cofelons principal opinion has implicitly endorsed during when a murder is committed such a result. arson, rape, course of robbery, burglary, or Accepting principal opinion’s kidnapping Thus, infer- murder. all true, ences as jury felony-murder charge conclude that cases the state can all both Mitchell and Turner were participants inside with murder. If the store and that Turner killed one of verdict, guilty returns a this will Court 1. The case on which most Missouri requisite courts proved. have mental state must still be In expressing liability relied in instances, the criminal participant an most when intends to accessory provided: promote the commission of a he crime has the persons requisite agree together If two or more mental state mandated the statute. crime, upon commit some When a and enter different crime is com- committed than was crime, however, them, contemplated, necessity requir- mission of the and one of pursuance design ing of the common and for two mental states to found be becomes out, purpose carrying performs necessary some crucial. For a review the mental criminal act different from required that in contem- accessory, state to convict an see plation outset, parties of the at the White, (Mo. others banc guilty will be J., criminal act. 1981)(Seiler, dissenting). Plotner, 83, 283 Mo. 222 S.W. (1920) added). (emphasis course, Of uphold the Except conviction. in the most Similarly, Mitchell also denied killed cases, extreme whenever the evidence can people liquor store at his prove said to the murderer had trial, trial. In Turner’s Mitchell took the premeditated and kill, deliberate intent amendment, refusing fifth to admit that he circumstances will exist which it can be Johnny even was In Mitchell. both Cham- inferred that all cofelons shared the same case, bers and the instant the declarants intent, i.e., to leave no witnesses. Conse- no complicity Thus, admit in any murder. quently, principal the opinion obliterates al- in both the cases declarants’ out-of-court most all distinctions created the legisla- become statements crucial the defend- ture capital between murder felony and ants. In Chambers the tried to defendant murder, and we are left with the situation get into of three evidence the statements existing September 28, before 1975, when people had to whom admitted McDonald ‍‌​​​​​‌​​‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​​‌‌​​​​‌​‌​​‌‌​​​‌​‍the two forms of murder were contained in attempt- also killing Turner policeman. the the same statute. In order to avoid this whom Mitchell ed to call witness to ad- a situation and the penalties, more severe he had killed the times “two mitted several defendant prove forced to his innocence testimony cases the both dudes”. In of capital murder —a hardly condition con- Chambers, hearsay. however, In refused as sonant with the precepts of system our Supreme Court the United States reversed

justice. Still, in the instant case this is Supreme Mississippi the Court held what Turner attempted to do. spontane- was made each confession Turner wanted Cooper to call Michael shortly ously acquaintance after to a close Cooper witness. would have testified occurred; param- the whatever the that on several occasions Mitchell admitted rationale, penal-interest eters of the each “wasting state, the two dudes”. which self-incriminatory confession was and clear- had trial, used the testimony in Mitchell’s interest; against ly corroborating evi- successfully blocked its introduction. When dence to ensure the trustworthiness all considered, the circumstances are how- Thus, ever, declarations was available. even I believe Cooper should have been though heаrsay, statements were the testify. allowed to so the provided circumstances considerable assur- Mississippi, Chambers v. 410 U.S. reliability ance of their and to exclude the (1973), S.Ct. 35 L.Ed.2d 297 cited in deprived statements of a defendant fair opinion, the principal a striking bears simi- trial. larity to the instant case. In Chambers the was on trial for murder of a Supreme The United States Court arrived policeman. His defense was that he did not Georgia, at the conclusion in Green v. same man, commit the crime and another Mc- 60 L.Ed.2d 442 U.S. 99 S.Ct. Donald, had. Apparently McDonald had (1979) curiam). punishment (per At people told police- three he killed trial, phase of the de- his man signed and also had a confession. De- attempted prove fendant that he had not fendant called McDonald aas witness and He wanted to introduce killed the victim. got signed into evidence McDonald’s confes- Moore, testimony a witness whom sion of the murder. The state did cross-ex- accomplice underlying in the felo- Green’s him, amine only purpose but nies, killing had admitted the victim. The rehabilitating by allowing the witness him Supreme Court found: give lying his reasons for when he made Regardless proffered whether Thus, confession. McDonald denied Georgia’s testimony hearsay comes within policeman and was rendered un- rule, case its under facts of this exclu- available to the Even if defendant. sion constituted a violation the Due permitted trial court had to ex- Amend- Process Clause the Fourteenth witness, amine McDonald as an adverse un- high- ment. The excluded doubtedly he still would have denied pun- in the killing. ly involvement relevant issue critical ..., phase ishment of the trial and sub- The statements were made to or over- reasons existed to assume its reli- stantial acquaintance, Cooper, heard a close ability. spon- made his Moore statement shortly after the murders. Each confession taneously to a close friend. The evidence very self-incriminatory was in a real sense corroborating ample, the confession was unquestionably against interest. The procure and indeed sufficient to a convic- total circumstances indicatеd decla- tion of Moore and a sentence. rations were reliable. Mitchell had tried to interest, against The statement was get help Cooper robbing High him in there was no reason to believe that Moore Liquor Pockets Store and later confessed to any making had ulterior motive in it. Cooper that he had robbed it. But more Perhaps important, most con- importantly, separates what this case from testimony sufficiently sidered the reliable principal opinion ones cited against Moore, to use it and to base a brings holding it within the of Green is that upon sentence of death it. In these precisely the same evidence Turner wanted circumstances, hearsay rule “the unique powerful to introduce was the most evi- may applied not be mechanistically to by dence used the state to convict the de- justice.” the defeat ends of plaintiff clarant. The same of Mis- —State added) Id. at at (emphasis S.Ct. totally Cooper’s souri —almost on relied tes- (citations omitted) (footnote omitted). timony prove as to what Mitchell said to Whether this evidence was at introduced Mitchell killed both victims. One could punishment guilt phase the of the trial hardly expression find an reliability of more made no Georgia Supreme difference. The convincing than that. distinguished Court Chambers from Green’s Cooper The state called testify to case on the basis that in Chambers the trial, wanting Mitchell’s the to believe ou1>of-court attempted statements were to testimony fully expecting and it to do guilt be por- introduced at the or innocence presented so. The state him as the last tion of the trial and Green wanted to intro- only person witness and he was the who duce the out-of-court statements of his ac- directly killings. linked Mitchell with the complice punishment at phase Cooper separate contended that at addition, trial. Georgia In court found times Mitchell said he killed the two men. testimony that the in Chambers would have carefully The questioned Cooper state totally Chambers, exonerated and at Mitchell, Turner, make it clear that not was Green’s trial the evidence would not have killing the one who admitted two men. exonerated him of the underlying felonies. When Mitchell took the stand in his own State, 261, 271, Green v. 242 Ga. 249 S.E.2d trial, state, contrary princi- to what the (1978). Obviously, the United States asserts, pal opinion had the means of test- Supreme rejected Court such distinctions ing the truthfulness of his statements and citing Mississippi, supra, Chambers v. attempted on cross-examination to do so. held that under testimony Chambers such opportunity The state had the to cross-ex- Thus, should have been admitted. Green is amine the declarant and did cross-examine distinguishable from the instant case him. The state should not now be allowed merely because Turner wanted to introduce complain it had opportunity no testimony during guilt or innocence cross-examine Mitchell in Turner’s trial. phase of the bifurcated trial and the testi- Actually, Turner is the one who had no mony totally would not have exonerated opportunity any to do so in trial. On the him. Both attempted Green and Turner hearsay, part, basis of this at least in Mitch- prove the same fact which wаs the critical capital ell was convicted on two counts of they issue at trial: killed no one. Further- murder. more, the confession Cooper of Mitchell to course, in the instant case bore Cooper the same assurances Of the state did not want reliability of as testify existed in Green and Cham- at Turner’s trial because “the bers. testimony though hearsay”. was Even hearsay, unique because Georgia of circumstanc- Supreme Court asserted case, es of State, this it should have been supra. admitted Green v. The United indeed, the traditional and Supreme fundamental States Georgia, Court in Green v. process required supra, standards of due it to be. held the out-of-court statements had testimony rejected persuasive admitted, though bore they as- even would not totally surances trustworthiness —the have confession exonerated the defendant. acquaintance; was however, made twice to close Court did state in Chambers interest; definitely against was rights directly and it that “where constitutional affecting previous guilt submitted the state triаl as the ascertainment of are im- plicated, true hearsay may declarant ap- was cross-examined rule not be Further, plied mechanistically the state in that trial. to defeat the this ends justice.” testimony was even U.S. 93 S.Ct. at more critical to Turn- Here, application proposition of that er’s defense than to the evident; seeking Turner was defendant in exoneration Chambers. In Chambers the from presented murder. evidence that contra- dicted McDonald’s alibi and showed Mc- sought The state his conviction on two (the pistol Donald .22 policeman owned a counts murder with punishment bullets). was killed four .22-caliber In first-degree of death. A conviction of mur- addition, Chambers introduced the testimo- der penalty with the attendant life im- ny two witnesses saw prisonment —one is a significantly less severe gun McDonald with a his hand punishment. Although Turner received life policeman. other saw McDonald shoot imprisonment possibility pro- without the rejected Certainly, if the parole or fifty years bation for on each was, Supreme Chambers as the de- Court penalty, count and not the death a flat life scribed, critical, then it even is more so in sentence still would have been less severe. Here, only the instant case. evidence sup- There evidence which have would participate that Turner did not in the kill- ported a first-degree conviction of murder. ings Cooper’s was from Turner himself. it,2 tacitly The state admits Turner admits testimony would have Turn- it,3 corroborated so, judge trial admits it.4 Even story er’s that did not he kill either victim Cooper’s testimony still was critical and was not even in the store when the jury Turner’s If defense. had had the Supreme fatal wounds were inflicted. The testimony, benefit of the it would have required Court in Chambers never that made more credible Turner’s version of the hearsay totally exonerate defendant be- robbery likely jury and more that the would principles fore the enunciated there could guilty first-degree have found defendant murder, applied, opinion principal be as the capital asserts rather than murder. argues Although argues

2.The state its brief: state later that the have could inferred from the evidence that persons join purpose two or more in a [I]f requisite Turner formed capital state for mental them, crime, actually commit each of if or murder, quoted portion of the brief constructively present, only guilty is not as a only support first-degree would a conviction of principal crime, particular if the other commits that murder, especially only repeated since Turner guilty any but he is also other crime that Mitchell said he killed victims to leave pursuance committed the other in of the no witnesses. purpose, probable or as common consequence.... a natural or By appellant’s own state- Appellant’s 3. at brief ment he indicates that the victims were killed so no be that witnesses would left behind. appellate reviewing 4. In a “letter” to the court Therefore, respondent contends the kill- that case, commented, judge you the trial “[I]f ing pursuance pur- was in of the common through you’ll e., have waded pose, perpetration this whole trial see i. successful felony probably that Further, murder is what we’re talk- robbery. respondent contends that ing about here .... I think probable there are all of the a quence is a conse- natural and felony I elements for murder in this case. robbery perpetrated by of a use of a very possible think that it is gun. that’s what the Transcript supports.” (citation omitted). Respondent’s 617-18. at 28 brief admission objection to the the state’s Turner, According to he and Mitchell into evidence. Cooper’s statement bought liquor went to the store and a beer. store, leaving the Mitchell told Turn- After appellant guilty It seems clear that block, park er to drive the truck around the first-degree partici- murders due to his

it, to the store. walk back and then pation robbery, or at least the evi- knowing apparently Turner Mitchell was support such a verdict. The dence would store, going to he rob the did as was direct- general assembly has made a definite dis- business, ed. When Turner entered he and first- tinction between man, Neeley, struggling get saw a Mr. degree recognize murder and we should Although his feet. Turner struck him on prаctical application in the that distinction bottle, the head with a beer the evidence evidentiary statutes under the situ- these Neeley kill con- showed did not or Here, in the various cases. there is ations Turner, According tribute to death. appellant no evidence that killed Parker or apparently never saw Parker and did not Further, agreed Neeley. to kill Parker or Parker, probably know that who was dead Neeley’s the evidence is that the blow to time, lying at the behind the counter. by appellant neither killed him nor head Admittedly, Turner could be convicted of contributed to his death. first-degree Neeley the death of appellant, As to this we have a classic during and Parker committed his cofelon first-degree case of murder under 565.003 § a robbery the course of in which Turner and no substantial evidence from which it But, participate. intended to and did clear- reasonably be found that this defend- ly might no evidence exists from which it (a) (b) Neeley, ant killed Parker or intended remotely be even inferred that Turner Neeley, (c) to kill Parker or this wilful, deliberate, premeditat- formed a taking defendant considered the life of ed intent kill Neeley. both Parker and Neeley or Parker and that mat- reflected on Under the unusual circumstances and fully coolly they ter before were killed. case, facts Cooper of this I believe that The convictions of murder should testify. should have been allowed to “Few reversed and case remanded for new rights are more fundamental than trial. I therefore dissent. present an accused to witnesses in his own Mississippi, ‍‌​​​​​‌​​‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​​‌‌​​​​‌​‌​​‌‌​​​‌​‍supra, defense.” Chambers v. The at 1049. 93 S.Ct. U.S. held

Supreme Court Chambers introduction permit

refusal was a violation

witnesses’s the defend- process deprived

due because it WELLS, fundamentally Appellant, fair trial. ant F. Gerald And, as case. same is true in Turner’s indicated, claim the hardly the state can WELLS, Respondent. Gail Ann both that he killed statement Mitchell state credibility when the men lacks No. 42499. very statement

substantially relied on Appeals, Missouri Court of Nor Mitchell of both murders. to convict Eastern District. the state could does the fact trial in Turner’s cross-examine July right. any substantial deprive the state of surely undertake now state would not prove not make that state- Mitchell did convicting premise him on the ment after killings. There-

that he did claim the two

fore, have sustained I believe it was error to

Case Details

Case Name: State v. Turner

Court Name: Supreme Court of Missouri

Date Published: Nov 10, 1981

Citation: 623 S.W.2d 4

Docket Number: 61974

Court Abbreviation: Mo.