"The jury's finding that one or more statutory aggravating circumstances exist is the threshold requirement that must be met before the jury can, after considering all the evidence, recommend the death sentence."
How later courts described this case
- "The jury's finding that one or more statutory aggravating circumstances exist is the threshold requirement that must be met before the jury can, after considering all the evidence, recommend the death sentence."
- “The jury does not exist until the veniremen selected therefor are sworn to service in that capacity.”
- defendant had IQ of 73
Written by the judges who cited it.
The opinion
SEILER, Judge,
dissenting.
I respectfully dissent. In my opinion the trial court erred in not instructing on diminished mental capacity, both during the guilt and sentencing phase of the trial.
Sections 552.030.3(1) and (2), RSMo Supp. 1981, provide as follows:
3. Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible
(1) To prove that the defendant did or did not have a state of mind which is an element of the offense; or
(2) For the purpose of determining whether or not the defendant, if found guilty of a capital offense, shall be sentenced to death or life imprisonment.
There was evidence in this case from a qualified medical expert that the defendant has an I.Q. of 73, that anything between 72 and 85 is considered to be borderline mentally retarded; 1 that his verbal I.Q. was around 75 which would put him in the lower 8th percentile of the population; that his performance I.Q. was 69 which would put him in the bottom 2% of the general population; that a person with a lower I.Q. is more susceptible to suggestion and temptation and that this particular defendant should be considered borderline mentally defective.
The principal opinion points out there was also evidence in this case that nonetheless it would be possible for defendant to form the intent to kill another person, to know that he was practically certain to cause the death, and to consider doing so and reflect thereon coolly and carefully. It does not follow, however, that defendant’s mental defect did not, in this particular case, operate so that he did not reflect coolly and carefully before doing what he did. There is evidence in the case that defendant and another inmate were talking just a few moments before defendant went into action and that the other inmate asked defendant, “When are you going to do that?”, to which defendant replied “Might as well do it now” and that there also was something said about a ring and a payment, following which defendant virtually ran amuck.
It is not only a question of whether there is sufficient evidence to support a submission of capital murder. It is also a question of whether there was evidence sufficient for the jury to find that defendant’s mental *678 capacity or lack of it was such that he did not, in fact, on this occasion, coolly and deliberately reflect and consider upon the matter, both with respect to the acts performed or as bearing upon whether he should have the death penalty. State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974). Being a borderline mental defective goes to the existence of the state of mind which makes up the elements of capital murder, and inasmuch as capital murder is the only crime for which death can be the punishment, it also goes to whether this particular defendant deserves the death penalty. “[I]t is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense.” Roberts v. Louisiana, 431 U.S. 633, 637 , 97 S.Ct. 1993, 1995 , 52 L.Ed.2d 637 (1977).
The report required of'the trial judge by § 565.014.1, RSMo 1978, on the questionnaire prepared by this court has a space to “List any non-statutory mitigating circumstances indicated by the evidence, if any” to which the trial judge answered “low mentality.” Why was it not, therefore, instructed upon?
The Missouri death penalty statute requires a high degree of specificity as to aggravating circumstances instructions, so that the jury’s attention is channeled in that direction. No such specificity is required, however, as to non-statutory mitigating circumstances. The only mention in the instructions in this regard was the general statement contained in instruction No. 19 to the effect the jury could consider all the evidence relating to the murder and “any circumstances which you find from the evidence in extenuation or mitigation of punishment.” This is vague. The jury should be allowed to examine this particular individual with at least the same degree of specificity as to extenuating or mitigating circumstances as it does with respect to aggravating circumstances.
It was for the jury to decide whether defendant’s mental defect raised a reasonable doubt as to whether or not he acted with required mental intent. The jury should have considered this both at the guilt phase and at the punishment phase, but in the absence of MAI-CR2d 3.74 being given in the guilt phase and the absence of any mention of mental defect in the sentencing stage in the instructions, the jury’s attention was deflected elsewhere. The practical effect was to minimize the jury’s consideration of relevant mitigating factors, contrary to the requirements of Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).
A person who is a borderline mental defective is by definition a person of limited intelligence. The principal opinion distinguishes this defendant from the defendant in State v. McIlvoy, 629 S.W.2d 333 (Mo. banc 1982), where the death penalty was reduced to a life sentence without parole for 50 years. There, too, the defendant, among other things, was of “limited intelligence” (I.Q. of 81), “a weakling and follower.” Id. at 341 . 2 Similar considerations are present here. A person with an I.Q. of 73 is not on the same level with a person of normal intelligence. The matter of defendant’s admitted subnormal intelligence should have been a factor which the jury was called upon to consider, just as a young age is something which the jury would be called upon to consider, even though a sixteen year old youth (if that were the defendant’s age) would be capable of forming *679 the necessary intent for capital murder. Defendant’s mental capabilities should be taken into consideration for the jury to resolve one way or the other as to its effect on guilt or punishment, but that was not done here.
. The American Association on Mental Deficiency defines mental retardation as follows: Mental retardation refers to subaverage intellectual functioning which originates during the development period and is associated with impairment in adaptive behavior. R. Edgerton, The Cloak of Competence 3 (1967).
. Considering the crime, see § 565.014.3(3), other facts for comparison of Mcllvoy with this case as to disproportionateness of the death penalty are that Mcllvoy and others first tried to ambush the victim on the evening of February 2, 1979, but could not get close enough, so a second effort was made the following night. This time the victim’s truck was stopped. According to the trial judge’s report in the McIlvoy case (see § 565.014, supra), McIlvoy approached within a few feet of the victim and shot him twice in the head at point blank range. The gun jammed. Mcllvoy unjammed it and put two more shots into the victim’s head. The gun again jammed. Mcllvoy again unjammed it and got off two more shots. The victim was hit in the head five times. For this Mcllvoy was to have been paid $1,000 by the victim’s wife.