affirming trial court’s admission of detailed account of defendant’s participation in an armed robbery about one month before the commission of the charged first-degree murder of a police officer, emphasizing that “[w]ide latitude is generally allowed in the development of evidence of motive”
How later courts described this case
- affirming trial court’s admission of detailed account of defendant’s participation in an armed robbery about one month before the commission of the charged first-degree murder of a police officer, emphasizing that “[w]ide latitude is generally allowed in the development of evidence of motive”
- first gunshot would have incapacitated victim, which supported inference of reflection before second and third shots.
- "The issue when determining the proportionality of a death sentence is not whether any similar case can be found in which the jury imposed a life sentence, but rather whether the death sentence is excessive or disproportionate in light of `similar cases' as a whole."
- evidence that a defendant slipped out of handcuffs before attacking a state trooper gives rise to a reasonable inference of deliberation
Written by the judges who cited it.
The opinion
BLACKMAR, Judge,
dissenting.
I.
I believe that MAI-CR2d 3.42 (then in effect) should have been given as requested. The evidence of the essential elements of premeditation and deliberation was wholly circumstantial. The defendant’s admission as set out in the principal opinion simply showed that he was present at the scene and that he fired shots after a struggle in which he wrestled the gun from the officer. If the jury believed his statement, conviction of first degree murder would be very doubtful.
As the principal opinion indicates, our decisions have announced in general terms a rule that, whenever both direct and circumstantial evidence are presented, MAI-CR2d 3.42 1 need not be given. The principal opinion apparently would apply this rule expansively, so that the instruction is not required if there is any direct evidence of any element of the offense. This goes beyond the case law. In State v. Griffin, 662 S.W.2d 854 (Mo. banc 1983), cert. denied, 469 U.S. 873 , 105 S.Ct. 224 , 83 L.Ed.2d 153 (1984), cited in the principal opinion, there was eyewitness testimony to the shooting. That case relied on State v. Baldwin, 571 S.W.2d 236 (Mo. banc 1978), in which the knife which was the subject of the charges was found concealed on the defendant’s person. In other cases announcing the rule relied on in the principal opinion, there was also stronger direct evidence to support the convictions than was present in this case. E.g., State v. Stevens, 467 S.W.2d 10, 25 (Mo.), cert. denied, 404 U.S. 994 , 92 S.Ct. 531 , 30 L.Ed.2d 546 (1971); State v. Aubuchon, 394 S.W.2d 327, 336 (Mo.1965); State v. Spica, 389 S.W.2d 35, 52-53 (Mo.1965), cert. denied, 383 U.S. 972 , 86 S.Ct. 1277 , 16 L.Ed.2d 312 (1966); State v. Tallie, 380 S.W.2d 425, 429 (Mo.1964); State v. Loston, 234 S.W.2d 535, 538 (Mo.1950).
The principal opinion sets out a lengthy chain of circumstances supporting the findings of deliberation and premeditation. It also demonstrates in detail circumstances showing that the defendant’s explanation was unreasonable and incredible. The jury should have been told that it had the duty of making the indicated comparison of competing theories.
It has sometimes been said that an instruction along the lines of 3.42 might confuse the jury when there is direct evidence. There would be no confusion in this case because the jury was obliged to analyze evidence which was purely circumstantial *544 before it could find guilt of first degree murder. The instruction would be helpful to the jury and it should have had the benefit of it.
I can understand that the trial judge may have thought, from the Notes on Use, that he was not obliged to give this instruction, 2 but when the state seeks to take a life, the defendant should be afforded all available procedural safeguards.
II.
For the reasons above assigned I am of the opinion that the case should be reversed and remanded for new trial, and so I would not reach the issue of proportionality review under § 565.035.2 and .3, RSMo 1986. Since the Court considers the point I vote for a mitigation of the sentence.
The comparison to the Tate case is patent. The principal opinion refers to this defendant’s other convictions as a distinguishing feature. Balanced against those are Tate’s having shot and seriously wounded a second trooper with intent to kill and his involvement in an incipient armed insurrection against the United States and the State of Missouri.
There is an inherent conflict between jury sentencing and proportionality review. In Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), the Court majority was disturbed about disparity in the application of capital punishment under existing statutes. Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), considered that the modified statutes there considered would introduce elements of objectivity and uniformity into the administration of capital punishment and so once again allowed the states to reinsti-tute it. Now, in McCleskey v. Kemp, — U.S. -, 107 S.Ct. 1756 , 95 L.Ed.2d 262 (1987), the Court majority appears to recognize that disparities are inevitable and seems to take a position of indifference. Our duty under § 565.035 is not limited to the minimum that the Supreme Court of the United States might allow. We should strive to make sure that essentially similar offenses are similarly punished. Although the first degree murder of a law enforcement officer is a statutory aggravating circumstance supporting the death penalty, juries have reached divided conclusions in cases in which this circumstance is present. 3
The racial question also impacts the issues. It is unfortunate that the judge initially assigned sent the case to a county in which there were no black residents available for jury service. I have every confidence that he did this for the sole reason that he wanted to get the case a long way away from Perry County, as the defendant requested, and without any racial motivation whatsoever. When the problem was called to the attention of the successor judge, however, I believe that the case should have been transferred to another county. We should be mindful of appearances when life is at stake. I do not suggest that the jurors of Schuyler County did not do their duty as they saw it, nor do I argue that a defendant is entitled to have persons of his own race on the panel. But the appearances remain.
I would exercise our duty to “consider the punishment” pursuant to § 565.035.2 by reducing the sentence to life imprisonment without probation or parole. In addition to the factors discussed earlier, I give attention to the nature of the homicide, which, although it could be found to be deliberate by the rather legal standard defining that term, was nevertheless quite impulsive.
The judgment should be reversed as to guilt and punishment and the case remanded for new trial.
. Now MAI-CR3d 310.02.
. 2. This instruction may be given even if there is some direct evidence of guilt, though it need not be given at all unless the evidence is wholly circumstantial.
. Compare State v. Thomas, 625 S.W.2d 115 (Mo.1981), State v. Lomax, 712 S.W.2d 698 (Mo.App.1986), State v. Sargent, 702 S.W.2d 877 (Mo.App.1985), State v. Stephens, 672 S.W.2d 714 (Mo.App.1984) (life sentence cases) with State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983), cert. denied, 471 U.S. 1009 , 105 S.Ct. 1875 , 85 L.Ed.2d 168 (1985) and State v. Baker, 636 S.W.2d 902 (Mo. banc), cert. denied, 459 U.S. 1183 , 103 S.Ct. 834 , 74 L.Ed.2d 1027 (1982) (death sentence cases). In McDonald , the police officer was recognized as such by the defendant, even though he was not on duty.