*1 in- duty рroceed with similar has the have the to The court practice for decades. well the witness may further be appropriate quiries. to take action to duty helpful any truly attempts giving at frus- avoid the of discovery, when are could information, making privilege claim of duty is not one a by tration evasion. This when the pierce Discretion ex- cannot which admits of discretion. which the relator so, If question but not as is asked. ists as first substantial details? judge of The trial an responsibility. proceeding may exercise be exercise this whole opinion that he duty here was of the apparently respondent had frustration. But teaches that this nothing. Shapiro Perhaps could do go he did. further than responsibility is not so. We too have a with counsel have conferred court should seeing discovery that the rules are enforced. faith exploring good and the witness in Shаpiro being misap- If misconstrued and privilege. of the claim of plied, guidance. we provide should willing to take some action we are Unless about the point quibbling
There is no show- confess that the in this case we must court not reach form of the writ. The did never be made ing Shapiro can required its discretion. The exercising of matter, witness as a practical jurisdic- phrasing relator’s of an absence of and brazen lawyer clever prompted inappropriate. not deny discovery tion to claim of self-in- to make a blanket enough treating justified be We would also litigant of valua- deprive a may crimination mandamus, on the proceeding as one in make I would therefore ble information. had the ministeri- respondent basis that the by the relator sought as rule provisional fostering discovery provided al duty absolute, or, stylistically more if it would be judge duty the rules.3 The had a “do writ of peremptory issue satisfying, would something.” mandamus. adequate. by appeal The remedy inception problem
The surfaced at sought The witness process.
the discovery and, process intentionally,
to frustrate that without go
to force the relator to trial testimony. as to her discovery
the benefit of impossible an bur- relator would face establishing the denial of this
den in have affected the result information could Missouri, Respondent, STATE justified intervening are of the trial. We the witness stage, at writ for otherwise WILLIAMS, Appellant. Doyle whom she has associ- plaintiff, and the inappro- herself, by her might benefit ated 63587. No. priate attempts. Missouri, Supreme Court We, course, command do not direct or En Banc. proceedings. the details of further least, had, duty May very at court below and to questions certified proceed with the 30, 1983. Denied June Rehearing is a possibility whether there determine questions. these self-incrimination from provides good want of faith
The witness’s Shapiro. required by basis evidentiary other deposition
If is continued and judge would then the
problems arise “proda- writs, (1975), discussing see fungible Mo.L.Rev. of these 3. As to the nature Tuchler, Interlocutory “Discretionary Review mus” and “mandhibition.” Writ,” Abuse in Missouri: Judicial
105 *4 V, appeal. tion of Mo.Const. art. bevy points urging raises a appeal reversal, of which will receive subse- each treatment. We af- quent appropriate judgment firm the of conviction and sen- tence. was convicted of the
Defendant Brummett. Kerry Inextricably murder of murder are the cir- woven into Brummett’s burglary of the offices of of the cumstances Auxvasse, Missouri, Dr. D.A. Domann murder. Critical to the subsequent and his testimony of John Mor- case is the state’s many gan, a co-actor with defendant im- given nefarious activities. exchange for his in this case in munity testimony. leading defend- of events prologue April, starts in 1980. De-
ant’s conviction *5 burglarized the Morgan and John fendant in Aux- оffices of Dr. D.A. Domann medical items, pre- among blank taking, vasse other thereafter, defend- scription pads. Shortly Morgan’s trailer Morgan ant and went to Brum- presence Kerry home and in utilizing pre- mett discussed means of Brummett, time, scription pads. At that roommate, pre- saw the Morgan’s who Dr. Domann’s scription pads which bore in defendant made a day, name. Later in forged prescriptions clumsy pass effort store, caught drug but he was a Columbia delicto, charged and arrested flagrante in sub- attempt to obtain controlled by fraud. stance arising from the charge with the Faced was con- forged prescription, defendant confided rap” and “beat vinced could “if avoid conviction Morgan that he could Defender, Marshall, Public J. Thomas hadn’t testify that he the doctor didn’t Moberly, appellant. for presage for the signed prescription” —a Gen., Ashсroft, John M. Mor- Atty. John Domann. death of Dr. Gen., City, for ris, Jefferson Atty. Asst. 7, 1980, respondent. later, on de- October Sometime Morgan that he had fendant revealed GUNN, Judge. body placed and killed Dr. Domann clay October Callaway County pit. On Williams, Doyle Defendant-appellant, Kerry suggested murder, defendant by jury of was convicted as Dr. same fate should meet the death, Brummett 565.- 565.001, § and sentenced having testified jurisdic- Domann in retribution exclusive 008(1), giving this Court against Morgan forgery charge proceed- location near pulled the river bank and ings.1 Morgan from the car. bumper obtained a jack rope body weight. to serve as a day, 9,1980, sequence next October bodily Defendant continued his attack on of rather bizarre involving events a multi- victim, striking the handcuffed him the motion, tude of individuals lurched into cul- sending stumbling back and him down the minating in Kerry Brummett’s murder. riverbank toward Missouri River’s cur- recounting A of the manifold details of rent. flight Brummett’s from further at- clandestine meetings with a variety indi- continued, tack pur- with defendant close viduals and at a farrago sites suit, and, until he ran directly into river necessary to resolution of It is the case. handcuffed, surface, still sank beneath the sufficient to note that primary dramatis able to rise twice. As Brummett surfaced personae defendant, were Morgan, John for the second time defendant ordered Mor- Kerry Coleman, Brummett Betty one gan Morgan to shoot him. responded by of at least two of the defendant’s serious firing over the victim’s head. Remember- girl friends. ing traced, that the handcuffs could be de- The basic plan called for the elimination fendant into the waded river in an unavail- of Kerry prevent Brummett his testimo- ing effort to recover hand- Brummett’s ny against defendant on burglary of Dr. body, cuffed disappeared, which had not to Domann’s office. Betty Colеman was to be retrieved watery grave from a until sev- arrange for a date with Kerry Brummett in en days later on a sandbar. Jefferson City and drive him in a borrowed Cause of the victim’s death was drown- auto to a deserted area Callaway County ing. scalp His had been lacerated aby adjacent to the Missouri River. Defendant Also, blunt instrument. gold Brummett's would be lying in wait for the chain, blood, traces of the victim’s hair and kill. The plans ultimately came to fruition. cigarettes the brand of smoked him were Betty Coleman did meet and drive the un- found in car used defendant and suspecting Callaway Brummett County *6 Morgan in moving prey their about. theAt early morning for an rendezvous with Mor- assault, point of victim-’seye glasses the and defendant, gan and who emerged from plastic tag name were found. their place of concealment on the arrival of the Coleman auto. Brummett dragged was Defendant’s defense was by girl alibi a from the by auto defendant and Morgan friend, Potts, Nina testifying that she and who beat and hapless kicked the strug- sharing defendant had been the same bed gling victim about the head body, de- during period. the critical fendant utilizing the barrel end of his .357 The jury found guilty capi- defendant of Magnum on Brummett’s for greatest head tal murder with sentence of death. The effect. a Using pair of handcuffs he had aggravating designated circumstance previously borrowed from an undiscriminat- that Brummett was for pur- murdered the ing police friend, Auxvasse officer defend- pose of him preventing testifying from in a Morgan’s ant with help was able to bind judicial proceeding. 565.012.2(12), See. Brummett’s hands behind his back and RSMo, Supp.1982. him, dazed, force bleeding and into the pertinent Other facts will be set forth as trunk of point Coleman’s auto.2 At some they points presented. relate to the during period the of pernicious activity, se, Brummett’s fervid supplications Defendant, through that he pro counsel and testify against would not defendant went points has raised a substantial number of of unheeded. Brummett was then driven to a appeal. points This review considers all By Betty 1. Brummett had in been state’s witness for- this time Coleman had left the scene gery charge proceedings brought against Morgan’s auto, leaving Mor- in her borrowed auto gan. Morgan’s behind for defendant’s and use. attempt or in raised, gaged perpetration trial errors and the death alleged rape the felony or forcea- perpetrate sentence. Sec. 565.014.3 felony sodomy or forcea- rape ble I Point of a sodomy,” part logical ble treat- Defendant’s initial raises a techni- However, he asserts ment of sex crimes. 565.012.2(12), cal RSMo challenge § 565.012.2(12), Supp.1982, per- RSMo that § is Supp.1982, alleging that it viоlative of only killing a witness and is tains Ill, requires Mo.Const. art. § preven- to sexual assaults unrelated subject shall contain more than one bill reading defendant’s tion thereof. But clearly expressed and which shall be its entirely is narrow. Section 565.- the act too title. Section 565.012 was amended part 012.2(12), Supp.1982, but RSMo para- Assembly General in 1980 to add as enacted in 1977 the Missouri Criminal Code 2(12) following aggra- graph statutory in defendant's counsel's and as referred to to be in as- vating circumstance considered of the overall “Crimes and part brief punishment capital murder cases: sessing heading. Punishment” “The murder was committed preventing purpose defendant for prevent a witness Murder committed judicial from person testifying killed a sexual assault case is testifying from proceeding.” Blair, 638 S.W.2d unique. not See But the fact part provision was enacted as of C.C. involved does not therе is no sexual assault 1138, 1279, 1461, 1534, 1537, S.H.C.S.H.B. circumstance of prevent aggravating (80th Assembly), 1592 and 1634 General 565.012.2(12), Supp.1982, from legisla- § found at Laws 1980 at 494-99. The RSMo certainly passing constitutional muster. repeal tion was entitled: “An Act to sec- 565.012, 558.016, 558.026, descriptive category 545.885, 566.- falls within broad tions 1978, and enact in 030 and 566.060 “Crimes and Punishment.” RSMo relating lieu new sections thereof twelve Point II prevention of such sexual assaults and the trial alleges Defendant next assaults, penalty provisions.” for erroneously overruled motion court This matter .will be considered under filed before trial. continuance error, motion plain as it was raised in judge granted May the trial 29.12(b). 29.11(d); for new trial. Rule Rule continuance and request defendant’s if a title The test to determine 14,1981. September the date of trial for set provi all of the violates 23 whether co-counsel, 28, 1981, August Charles G. On fairly relate to the same sions of statute request- apрearance entered his Hyler, subject, connection there have natural *7 continuance, was denied ed another or the means to with or are the incidents 3, 1981. The trial com- September on ex rel. Wil accomplish purpose. its State 14, as scheduled. 1981 September menced 223, Marsh, (Mo. 228 liams v. 626 S.W.2d 1982). provision This constitutional banc for a continuance Application ex liberally be construed. State rel. should of the to the sound discretion addressed 4, (Mo. 9 Godfrey, v. 519 S.W.2d McClellan court will not appellate trial court and an 1975). banc clearly appears that such interfere unless it Oliver, v. has been abused. State discretion sexual related to question bill 440, (Mo. banc On 445 assaults, 572 S.W.2d prevention of such and the assaults appears. record, discretion abuse provisions. Defendant con penalty before set three months The trial date was circumstance aggravating cedes that 24, August On was to commence. bill as 2(11), added in the same paragraph appear 1981, Hyler Charles G. entered murder was 2(12), paragraph “[t]he understanding with the defendant was en- ance co-counsel while the committed Statutory indicated. are RSMo 1978 unless otherwise 3. references
109
defender,
Marshall,
that the public
Thomas
Point IV
would remain on the case. Co-counsel Mar
Defendant,
relying
Cuyler
on
represented
shall had
defendant
from the Adams,
433,
703,
101 S.Ct.
66
449 U.S.
inception
case,
of the
at least six months
(1981), argues
L.Ed.2d 641
that Missouri
prior
14,
to the trial
September
date of
jurisdiction
lost
over his case when he was
There
was no showing that Marshall
to travel
forced
from Illinois without
pretransfer hearing.
was not
Defendant had been
ready
proceed
on
scheduled
custody
of federal authorities on oth
trial date. Defendant has failed to sustain
er charges. Through
Agreement
on
burden
demonstrating that the denial
Detainers,
1982),
(repealed
222.160
Mis
of a continuance was prejudicial to his case.
temporary
souri
custody
had obtained
Haggard,
44,
46
reason,
him. For
apparently
some
he was
1981),
vacated and
on
remanded
other
taken
Illinois and then returned to Mis
grounds, - U.S. -,
1171,
103 S.Ct.
75
custody
souri in the
of Missouri law en
(1983).
L.Ed.2d 423
There was no abuse of
forcement officers. He now contends that
by
action,
discretion
the trial
partic
court’s
pretransfer
he was
a
improperly denied
ularly as defendant was not denied able
hearing under Article IV of
Agreement
representation.
Turner,
State
623
on Detainers.
4,
1981),
denied,
cert.
Cuyler offers defendant no solace in this
931, 102
1982,
456 U.S.
S.Ct.
hearing deprives
jur-
the transferee state of
Point III
Rather,
isdiction
try
his case.
when the
been brought
accused has
within the custo-
Defendant contends that
the state
dy
state,
demanding
legality
of the
failed
disclose
by
statement made
John
longer
subject
extradition is no
proper
19, 1980,
Morgan on October
resulting in
State,
any legal
attack
him. Huffman v.
fundamental
prejudice.
unfairness and
In
549,
(Mo.1972).
support, defendant cites several court rules
Johnson,
(Mo.
requiring disclosure and imposing sanctions
1970), following
quoting
Frisbie v. Col
However,
the failure to disclose.
lins,
to to escape brought testimony because he was that “the same to against will. happen happened to to [Brummett] a demonstrated common Doctor Domann” Johnson, State v. at 764. potential to plan or scheme eliminate wit- him, against Defendant’s ruled to the bur- nesses connected defendant any alleged failing grant pre- error to the subse- office and glary Domann’s hearing transfer did not divest the trial to sub- quent attempt obtain controlled court jurisdiction to hear the case. instance, of the In this evidence stances. relevant, was no crimes was there other and Point V error in its admission. postulates Defendant that evidence devastating of other crimes was to his
cause,
admitting
and the trial court еrred in
Point VI
following: 1)
he
Mor
evidence that
and
granted immunity
had
John
been
office;
gan had
Dr.
burglarized
Domann’s
against de-
exchange
testimony
for his
2)
to
attempted
evidence that defendant
beyond
immunity extended
fendant. The
forged
obtain
controlled substances
in-
to cases
defendant’s involvement and
3)
burglary;
prescription pads taken
individuals, and
volving other crimes
Morgan’s testimony relating defendant’s
refer-
objected
to
defendant’s counsel
murdering
admission of
Domann and
Dr.
ruled,
The trial court
ence to
latter.
Callaway County
disposing
body
however,
other
testimony regarding
clay pit.
sub-
be allowed
would
persons
crimes
aphoristic
that reference to other
limitations, i.e., no identifica-
ject to certain
vio
crimes unrelated to the case on trial
specific individuals.
tion
made of
could be
right
lates a defendant’s
to be tried for
of Mor-
examination
During
redirect
her
charged
unless
offense with
he
asked whether
gan,
prosecutor
tendency
such
proof
legitimate
has some
Nina Potts?”
testify against
guilt
establish defendant’s
of the crime
“[had]
Shaw,
objected. During the
667, The
State
charged.
promptly
defense
636 S.W.2d
denied, - U.S.
cert.
(Mo.
1982),
conference,
that the
apparent
bench
it was
-,
(1982);
Brummett died as a result 185, (1982). Additionally, 74 149 original have differed from the L.Ed.2d may unavailingly have argued, the in plan accomplished but nonetheless other defеndants defendant, Bolder, penalty as that the death result. v. 635 does tended See State I, 673, process clause of art. (Mo.banc 680 The un violates due S.W.2d 10, punishment and unusual the cruel lawful act need not be the immediate cause § 21, I, right the “natural of art. and enough of death. It is that it be contribu clause § I, cause, to art. 2 of Missouri ting other con life” clause of proximate although § arguments These have been intervened. Constitution. tributing may causes have Bolder, v. 635 Bates, rejected by (Mo. v. this Court. State State 680; Newlon, v. App.1980). The that the victim ran at S.W.2d fact S.W.2d State that the escape suggestion into the river his attackers does at 611-13. Defendant’s on the death position not its liability alter the defendant’s for the Court reconsider Hence, any compelling unsupported by the trial court not err in is penalty death. did Accordingly, follows capital from this Court refusing charge argumеnt. to reduce the holdings its and finds that manslaughter. previous murder to penalty is not unconstitutional. death X Point Point XII suggests Defendant also error next attacks the consti degree on first murder in failing instruct Defendant Baker, 565.012.2(12), Supp. RSMo tutionality but that kidnapping accepts State § that is overbroad and (Mo. 1982) contending is control it S.W.2d Baker, twelve ling. that a first 565.012.2 delineates vague. In this Court held Section not degree giv statutory aggravating murder instruction need be circumstances. least of the enumer en in Id. at 904. must find at one charge. jury murder death This has reaffirmed circumstances holding statutory of Baker been ated cases, be 565.012.5. recently e.g., penalty imposed. § more a number of cannot Betts, imposing penalty, desig the death jury, banc The that 1983); Blair, as an circumstance aggravating at 747. nated State Kerry was com give There a first murder of Brummett failing error “[t]he purpose the defendаnt for degree murder instruction. mitted testify Brummett from preventing Kerry XI Point judicial proceeding.” ing any point raises the that the Defendant aggravating professes that Defendant punish and death cruel unusual penalty 565.012.2(12))must fail (i.e., circumstance § ment of the amendment eighth in violation knows require it because does Constitution and arti the United States judicial victim was witness I, cle 21 of Missouri Constitution was killed and that victim proceeding process Acknowledg of law. violates due testimony. He states prevent such ing that the issue has been considered find that he evidence to was insufficient adversely position, ruled to his he nonethe was a witness in knew that the victim posi less this to reconsider its reasons urges judicial proceeding. Court Defendant permits the tion the death sentence. scheme which regarding statutory that a penalty a death verdict jury to return penalty constitutionаlity the death impermissibly vague killing a witness Gregg v. carefully scrutinized in Geor must in this case the death sentence 49 L.Ed.2d gia, 428 96 S.Ct. U.S. be set aside. therefore (1976). is similar The Missouri statute fails for lack argument this Georgia, and therefore Court Defendant’s to that of killing of the The whole Gregg finding any support. analysis has accepted the record was eliminate supported by provisions death sentence Geor judicial pro- in a as a witness See Brummett gia’s are constitutional. statutes no require- to be held. There Newlon, ceeding
H3
*11
ment that the witness is either
to
Point XIV
scheduled
Further,
testify
actually
or
have testified.
Next,
allegation
is the
that
the
ample
was
evidence
defendant
penalty
this case
death
in
is excessive and
potential
considered Brummett a
witness
penalty
to
disproportionate
imposed
in
affair,
for the Dr. Domann
as the victim
presents
similar cases. This сase
the first
and defendant as they
has
penalty
imposed
time the death
been
discussed the burglary
proposed disposi-
aggravating
Missouri based on the
circum
prescription pads.
tion of the stolen
per
a
relating
prevent
stance
to murder to
any judicial proceed
son from
testifying
portion
That
of defendant’s ar
ing.
gument which
565.012.2(12)
contends that §
Blair,
(Mo.
banc
is unconstitutionally vague must also fail.
1982)
prior
was decided
to the enactment of
A statute is unconstitutionally vague when
aggravating
565.-
statutory
circumstance §
it either
doing
forbids
of an
requires
012.2(12)
a
but
involved
similar situation.
act
in terms so
persons
abstruse that
of
The defendant
in Blair was
a sum
offered
intelligence
common
necessarily guess
must
money
keep
of
to
the victim from testifying
at its meaning
applica
and differ as to its
Court,
rape
in a
case. This
in discussing
tion. Matter of Trapp, 593 S.W.2d
prevent
murder
from testify-
to
victim
1980),
dismissed,
appeal
456 U.S.
ing,
following:
found the
(1982);
S.Ct.
either disproportionate newly excessive or to the al a new trial on the basis of grant penalty imposed in similar cases. discovered evidence. Pro Brief Defendant’s Se
Point XV se pro Defendant has filed a brief Defendant presented five witnesses points also raises substantial number of hearing at the new on his motion for which are considered under cloak offering purpose exculpatory evi *12 plain error. persons dence on his Two the behalf. of jail, Morgan related that while in stated Point I that to changed story obtain immuni on Defendant’s first attack is the stаte’s ty. The trial the judge overruled motion instruction, directing following verdict for finding new trial that the evidence was 15.02, required finding a MAI-CR2d not credible. jury “The caused the the that defendant To newly receive a trial on new based him by beating death of Brummett Kerry ” following argues discovered evidence the must be that him.. .. He drowning and (1) misleading established: the evidence has come to was confus- the instruction and knowledge the the was jurors, particularly of the defendant since to the as there ing trial; (2) owing support it was want of no use of the word not due evidence to the sooner; diligence “beating.” it that was not discovered (3) that it the evidence is so material would the instruction He also maintains that produce a different result on a
probably requirements not the for find- does reflect trial; (4) only new and it not is cumulative guilty capital of murder ing defendant impeaching or of wit- merely credit to de- pursuant According 565.001. § v. ness. 589 305 Taylor, State S.W.2d fendant, that difference is 565.001 § 1979). (Mo. banc that kills or causes the requires person being while the killing of another human explanation offers no Defendant only required jury director verdict were why these witnesses not discovered the death of find defendant caused trial, considering before that each Brummett. Defendant contends Kerry Betty was a of friend defendant’s or Cole causing of the death person may guilty be man’s, diligence it due would appears that killing yet gulty of not be of someone and have available for trial. The made them as 565.001. defined § was either testimony of each witness error rise to For instructional testimony (i.e., of Potts’ cumulative Nina error, must plain level of the trial court evening home of that defendant was or to instruct the have so misdirected failed murder) impeachment intended injustice mis аs to cause “manifest jury it testimony Morgan. Finally, of John Bolder, v. 635 justice.” State carriage is so mate said the evidence cannot be Moland, 693; at v. 626 S.W.2d State S.W.2d a differ probably produce rial that it would (Mo.1982). principle It a basic is trial ent on a new trial. The court result of instructions respect to submission credible, it found the evidence was not if is no they given not be should in de is vested with substantial discretion Daugh v. them. State support evidence grant trial be ciding whether a new should (Mo.1982). De 631 S.W.2d erty, newly evidence. ed because discovered was no evidence maintains there fendant ground generally favored Such Kerry caused the death of beating that the Harper, relief. State S.W.2d Brummett. (Mo. banc trial ample an was evidence at significant that each witness was There beaten, hand Betty showing the victim was
acquaintance defendant or Cole- man; and drowned. Thе existence none came forward with evi- cuffed yet, no to the effect that drown testimony after the trial. There was medical dence until does not render ing in the court’s refus- cause death abuse of discretion misleading this instruction so as to result in Point II injustice. beating manifest Although the urges Defendant also that the state failed may not have been the direct cause of elements of murder and prove capital death, beating followed the drown- The facts corpus previously delicti. indited ing of the victim were related incidents dispose point, of this further dis proximately causing his death. course is necessary. elements were Gantt, proven. See State Defendant’s point in this regard deso 656, 662 (Mo.App.1982) proof on elements of late of Ready rejecting merit. support for corpus delecti. elements of this contention is found in v. Daugh State precisely murder set are forth in 565.001. erty, supra, in which phrase “causing Craig, See State v. the death of the victim” by “striking and Mannon, 1982); banc suffocating” similarly attacked and re 1982); State v. Strick pulsed. In Daugherty, the defendant con land, 392, 394(Mo. 1980) on tended that use of “striking” misled the *13 definition elements capital of various of into jury believing that the cause of death murder. was both striking and suffocating. Daugh Point III erty holds that that fact the medical “[t]he professes Defendant that he was denied expert’s opinion included suffocation and process due of legal law because the docu- hemorrhage causes of death does not necessary ments prepare to his brief were invalidate aspects other of the attack as a by pris- taken from him the warden of the contributing factor.” Id. at In 640. this brief, on. In suggests his defendant case, there was prejudice in the submis policies because of institutional he turned sion of the verdict jury director. The was legal legal over documents to an inmate for required to find an additional element to documents, assistance. These according to convict defendant capital of murder. defendant, were taken by from inmate submission actually placed a heavier burden agents thereby prevent- warden his of proof on the state. See State v. Black points all ing briefing of error.5 mon, 292, 587 (Mo.App.1979) S.W.2d 294 (instruction placing heavier burden than re These claims are not substanti quired prejudicial error). is not ated in the this record of case. There is no legal indication what of documents were Defendant’s on second attack why taken or the documents were taken verdict director is also without merit. Sec other than what in defendant states his tion 565.001 uses the term “kills or causes by Assertions made an in appellant brief. killing of another human being.” Use the brief not in the but shown record are disjunctive of the “or” indicates an alterna Harlin, not evidence. State v. 556 See tive generally corresponds to the 42, 1977), 44 vacated and Hawkins, word “either.” Hawkins v. 511 459, grounds, remanded on other 439 U.S. 811, Therefore, (Mo.1974). 709, (1979); S.Ct. L.Ed.2d 733 person is guilty murder if he Williams, (Mo.1981)(as either kills or the killing causes of another. by sertions brief or counsel motion for comports submitted instruction support other are new without not requirements 565.001 did not consideration). Accordingly, entitled to this jury. misdirect the point is denied. attempted procedures Department
5. Defendant
states he
to recover
within
istrative
State,
through
(writ
these documents
actions
this
Corrections. Williams v.
No. 64318
filed
Supreme
denied,
corpus
Court and the United States
Court.
of habeas
October
petition
This Court denied defendant’s
writ of habeas
Defendant’s
writ
certiorari was
сorpus
Supreme
to
for failure
exhaust
administrative
denied
the United States
Court.
-
remedies, being
Missouri,
-,
advised that
the matters
al-
See Williams
U.S.
leged
being
by on-going
(1983).
were
addressed
admin-
H7 not rise to the level of materiality necessary RENDLEN, C.J., and BILL- HIGGINS to warrant a new INGS, REINHARD, trial. judge JJ., The trial Special Judge, found Ms. Mealey’s testimony not to be concur.
credible. The testimony of the later affi-
DONNELLY, J., concurs in result.
ant,
affidavit,
evidenced
an
was not
presented at the
on
hearing
the motion for
WELLIVER, J.,
separate
opin-
dissents
new trial and was submitted to this Court
ion filed.
more than three months after
trial and
more than one month after
on
hearing
BLACKMAR, J.,
sitting.
not
defendant’s motion for a new
trial. As
WELLIVER,
dissenting.
Judge,
only
affidavit,
record
includes the
no evidence as to whether the prosecutor
respectfully
I
dissent.
aware of it or
development principal opinion
holds that the trial
evidence regarding
veracity
its
or reliabili-
failing
court did
err in
to instruct
ty.
aside,
These deficiencies
the proffered
jury
degree
on first
murder because State
evidence does not
establish
reasonable
Baker,
904-05
doubt as to
guilt.
defendant’s
Numerous
1982),
denied, - U.S. -,
cert.
103 S.Ct.
witnesses testified that Brummett was to
(1983),
Judgment affirmed. gued, well before In Goddard decided.2 principal opinion 1. The notes that Baker has noted that “Baker was in effect at time of recently Interestingly, been reaffirmed trial.” in number cases at 95-96. Goddard, announcing Betts, in that Baker was to be and cites State v. applied only prospectively, 1983), made no mention of support proposition. of that isIt contrary prior holding in Betts. applied clear Court Betts Baker retroactively January 1, 1979, the date the Appellant’s attorney appellant 2. filed a brief statute, 556.046, new lesser included offenses 18, 1982, pro appellant November filed se RSMo became effective. The trial 28, 1982, January briefs December Betts occurred October and the Court January 3, 1983. The state’s brief was filed affirming appellant’s conviction death
sentence, again once principal opinion
“demonstrates the classic catch-22 into majority has written the Court
an effort to affirm criminal convictions.”
Goddard,
(Welliver, J.,
dissenting). WINNEBAGO,
CITY OF LAKE
Plaintiff-Respondent, Defendant-Appellant.
Douglas SHARP, D. WINNEBAGO,
CITY LAKE OF
Plaintiff-Respondent, BRENNER, Defendant-Appellant.
Roger WINNEBAGO, LAKE
CITY OF
Plaintiff-Respondent, BURTON, Defendant-Appellant.
Dick
No. 64163. Missouri,
Supreme Court
En Banc.
May *16 January April argued decided 1983. case 1983. This Goddard