State v. Griffin

BLACKMAR, Judge

concurring in part and dissenting in part.

I concur in the affirmance of the conviction. I am unable to concur in affirming the death sentence.

I.

The fears I expressed in my concurring opinion in State v. Amrine, 741 S.W.2d 665 (Mo. banc 1987), have materialized. There the prosecution procured Warden Bill M. Armontrout to testify about the deterrent effect of death sentences for prison killings on other inmates who might be disposed toward violence. That case could have been disposed of by holding that reversal would not be decreed in the absence of objection to the testimony. The Court went further, however, and rhapsodized on the propriety of this evidence under the particular circumstances of a prison killing. I was not persuaded then, and am not now persuaded, that testimony of this kind is proper. What the Court approved of, in essence, was an argument by the warden in the middle of the penalty phase trial urging a capital sentence.

I cannot distinguish Amrine from this case. Here the offer of proof was confined to the facts of the case. The circumstance that the offer covered a broader segment of the population than in Amrine is not sufficient distinguishment. Nor is the argument that in Amrine the evidence tended to establish the aggravating circumstance of killing while in custody in a place of confinement persuasive. The legislature had already determined that the circumstance was aggravating, and any intelligent juror could sense the special problems of prison killings. The prosecutor may aid their consideration by argument. There is no need to present the warden as an authority figure. If we adhere to Amrine , which the principal opinion apparently does, then we should afford capital defendants similar opportunity to offer evidence about the deterrent effect of death sentences.

The Court, at the very least, should reject the broad holding of Amrine for future cases, by stating that no opinion evidence of the deterrent effect of capital punishment will be received in future cases. Otherwise Missouri justice, in capital cases, would appear to be somewhat less than evenhanded.

II.

The defendant’s first point on appeal reads as follows:

“The trial court erred in imposing a sentence of death for Count II pursuant to Sec. 565.030.4 because this statute is unconstitutional as it denies defendants the right to a jury trial as guaranteed by Article I, Section 22(a) of the Missouri *492 Constitution in that if the jury is unable to decide or agree upon punishment, the court is required to assess and declare punishment.”

After reflection I have come to the conclusion that the point is well taken, given the Court’s construction of the governing statute in this case and in State v. Steward, 734 S.W.2d 821 (Mo. banc, 1987). The pertinent portion of Article I, Sec. 22(a) of the Missouri Constitution reads as follows:

“That the right of trial by jury as heretofore enjoyed shall remain inviolate. ...”

The' principal opinion properly demonstrates that jury sentencing is not an essential requirement of either the federal or the state constitution. In this respect there is no distinction between death sentences and other sentences. The present situation differs from any other which comes before the Court in that the jury is allowed to surrender its fact-finding authority to the Court. By the holding of the principal opinion this surrender is total and irrevocable, once the jury reports that it is unable to agree on the sentence. The judge may not remonstrate with the jury or return it for further consideration.

A death sentence is authorized only if there is a factual determination that one or more of the statutory aggravating circumstances exists. No death sentence may be directed unless the jury makes the required factual finding. In a situation such as we now have before us, however, the jury is forbidden to disclose such aggravating circumstances as it has found and the judge then undertakes factual findings on the same issues that the jury has previously considered. This delegation is unprecedented, and in my opinion represents too great a departure from “the right of trial by jury as heretofore enjoyed.” I would concede that, for many years, judges have had the authority to determine the punishment when a jury in a single-stage trial agrees on guilt but cannot agree on the sentence. State v. Brown, 443 S.W.2d 805, 809-11 (Mo. banc 1969). In such cases, however, the jury has already determined all facts in issue. Here the court must redetermine facts previously submitted to the jury, on which it cannot agree. The right of trial by jury is substantially modified. There is no federal constitutional problem. I base my conclusion solely on the state constitutional provision quoted above.

In view of the firm position taken by the majority, I need not speculate as to whether the defects in the statute could be corrected by construction or by rule. Of course the majority sees no need for correction, and its views control.

III.

Under State v. Hopkins, 687 S.W.2d 188 (Mo. banc 1985), the challenge for cause against Yenireperson Brewer should have been sustained. The juror’s unequivocal answer is more persuasive than his general assurance of willingness to follow the instructions. Only a rare individual would look a judge in the eye and admit that he or she would not be willing to follow instructions. The prudent course is to sustain the challenge for cause.

IV.

The “torture or depravity of mind” aggravating circumstance is not necessary to the result, because other aggravating circumstances are found and adequately supported. My reservations about this aggravating circumstance, in the light of Maynard v. Cartwright, — U.S. -, 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988), are set out in my separate opinion in State v. Smith, 756 S.W.2d 493 (Mo. banc 1988).

V.

I would not dispute the conclusion of the principal opinion that the death sentence is not disproportionate, and so would allow the state to retry the penalty phase of the Redden case, if this is desired.