State v. Mercer

BARDGETT, Chief Justice,

concurring in part and dissenting in part.

I concur in the affirmance of the judgment of conviction of capital murder. I dissent from the affirmance of the death penalty on the record here and would, for the reasons stated infra, vacate this death penalty but allow the state to again proceed to obtain the death penalty from a jury upon the state’s notifying this Court within 30 days of its decision to do so. If the state failed to so notify this Court of its intent to seek the death penalty anew, the sentence of life imprisonment without parole for 50 years should be imposed.

*14 The proceedings in a capital murder case are bifurcated and error which affects only the punishment aspect of this crime warrants a new trial only as to punishment, as provided in § 565.006.3 RSMo 1977.

The evidentiary facts have been amply stated and clearly support a verdict of guilty of capital murder. But, when the punishment is death, then I believe strict compliance with constitutional requirements and those statutes authorizing the death penalty is mandatory. Death penalty cases are different from other cases for that simple reason — death. It is not correctable, as are other sentences, and therefore strict adherence to procedure is necessary. The fact that the defendant showed no mercy to the deceased and appears to have committed just about as evil an act as one could do does not justify law-abiding citizens — jurors, judges and lawyers — from straying from strictly correct proceedings as we go about the task of deciding whether to legally kill him.

I agree with part I of Judge Seiler’s dissent reference the response to juror Bumgarner to questions relating to his ability to consider the death penalty. For the reasons stated there the juror’s answers did not justify his removal for cause under Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). That error goes to the death penalty only and therefore, under the bifurcated system, did not prejudice the guilt part of the trial but did prejudice the punishment aspect of the case for the reasons stated in Witherspoon, supra.

Part IV of the principal opinion and part III of the dissent of Seiler, J., addresses the issue of the statutory aggravating circumstances. It appears to me that the principal opinion holds that there was sufficient evidence to find that the “defendant, as an agent or employee of Stephen Gardner and at his direction, murdered Karen Keeton,” § 565.012.2(6). However, it also appears that perhaps the principal opinion inferentially adopts the rule in Georgia as set forth in footnote 5, which may mean that the death penalty is to be upheld regardless of whether the “aggravating circumstance” noted, supra, was supported by the evidence and perhaps regardless of whether the circumstance can, under the evidence here, be rationally regarded as “aggravating.”

In my opinion, the evidence fails to support a finding that defendant was “an agent or employee of Stephen Gardner.” There is no evidence he was an employee of Gardner. There is no evidence, in my opinion, that the defendant killed the deceased because Gardner told him to. In fact, the state’s position is that he killed her to keep her from prosecuting him for rape as the other girl had done.

I have tried to perceive just how a murder such as this is worsened or the defendant a more heinous person if he killed the deceased as an agent or employee of another. I have no difficulty in understanding aggravating circumstance # 4 which provides for a killing for profit for himself or another and the first part of # 6 which provides that the “offender caused or directed another to commit capital murder.” Number 4 recalls to mind Murder Incorporated of yesteryear and the first part of # 6 recognizes that if a person causes or directs another to commit capital murder, the director is surely at least as guilty as the actor. But I cannot see what the rationale is when the actor is the employee or agent. How does it make the act more heinous or the defendant more evil if the defendant is being directed by another as the employee or agent of another? I am not saying the circumstance submitted here, as to the actor, could never be an “aggravating circumstance” but under the facts of this case I do not see any rational basis here for saying the verbal exchange between defendant and Gardner made defendant’s acts more aggravated or heinous. In my opinion, the evidence was insufficient to support the giving of aggravating circumstance # 6.

Furthermore, I would not adopt the Georgia rule noted in footnote 5 of the principal opinion. In my opinion, there must be evidence to support the submission of each statutory aggravating circumstance found *15 by the jury and upon which the death penalty was based, in whole or in part, and the statutory circumstances must be ones that can rationally be perceived as aggravating in the particular case. Circumstance # 6 should not, in my opinion, have been submitted here because it fails on both counts in this case.

I agree with the rule requiring evidence to support each aggravating circumstance submitted as set forth in the dissent of Seiler, J., and if the evidence is insufficient to support an aggravating circumstance upon which the jury based the death penalty, in whole or in part, the death penalty cannot stand.

I would therefore (1) affirm the judgment of capital murder, (2) vacate the death penalty and order that the sentence will be entered as life imprisonment without parole for 50 years (565.008) unless the state, within 30 days of this decision, notifies the Clerk of this Court that it intends to proceed with a new trial on punishment pursuant to § 565.006.3, whereupon the cause would be remanded to circuit court for a new trial on punishment only.