State v. Bolder

SEILER, Judge,

dissenting.

I respectfully dissent as to the review of the death sentence. In my opinion the sentence of death is excessive and disproportionate in this case.

As the principal opinion points out, this is the first case we have reviewed in which the jury imposed the death penalty after finding as a statutory aggravating circumstance that the defendant was lawfully confined at the time of the murder. The principal opinion, however, takes into consideration two other such cases pending before us, State v. Shaw, No. 62679 and State v. Trimble, No. 62523, but says nothing as to their facts, an aspect which is essential in determining whether they are similar to the present case. Based on the briefs and the oral arguments before this court in these two cases, there was evidence in the record supporting the verdicts as follows:

In Trimble, the defendant was in jail, charged with sodomy, rape, sexual abuse in the first degree and kidnapping of two nine year old girls. He was a large man, six feet, one inch in height, weighing 210 pounds. The victim, whom I will refer to only by his first name, Jerry, was age 20, five feet, ten inches in height, weight 145 pounds, quiet, shy, mentally slow, and “scared to death”. He was in jail on a charge of auto theft. Trimble would pinch, tease, and harass Jerry and when Jerry was asleep would put lighted matches between his toes. Trimble declared he wanted Jerry as his “punk”, i.e., homosexually; further, that he did not want to go to prison on the charges involving the two young girls because other prisoners did not like persons who committed crimes of that kind and to avoid this problem he intended to commit a capital murder.

He forced Jerry to don a bra, punched him, and repeatedly forced him to submit to oral and anal sex acts, forced him to kiss others, and to display a rag which had been stuffed in his anus, burned initials into his arm, referred to him as his “woman” and forced Jerry to write a suicide note to his parents. Later Trimble gagged Jerry with a towel, told him they were going to play a “hangman’s game”, looped a knotted towel around his neck, set his knees against Jerry’s back and proceeded to choke the victim to death over a period of fifteen minutes, breaking one of the neck vertebrae in the process. Trimble then attempted to make the death appear as a suicide, and forced the other jail inmates to agree to tell the guards it was a suicide on penalty of the same thing happening to them.

In Shaw, the defendant, serving a life sentence for first degree murder, intended to kill one of the guards, officer Clinton Wyrick, the uncle of the warden. Shaw entered the vegetable room, seized two butcher knives, and, without warning, plunged one into the side of the officer (Farrow) who was in charge of the knives, killing him (Farrow died within the hour from loss of blood). Shaw then went in search of officer Wyrick, found him in the commissary, attacked Wyrick with both butcher knives, the attack lasting 30 to 45 seconds, with numerous wounds on Wyrick’s arms, chest and stomach. Wyrick took thirteen months to recuperate.

Any murder is serious and reprehensible, but the murder in the present case is hardly comparable in viciousness or extremes to the murders in the Trimble and Shaw cases. The main similarity is that the instant case also occurred in a place of confinement. If the murder in the present case had occurred in a tavern or on a parking lot or elsewhere outside the prison walls, by someone not in confinement, there would have been no rea *692 sonable likelihood, in my opinion, of the prosecutor being able to obtain a capital murder conviction, much less the death penalty. It would work out as a second degree murder case.

In addition to the Trimble and Shaw cases above, the principal opinion considers the two cases where the death sentence has been affirmed (Newlon and Mercer), one case where the death sentence has been reversed because of disproportionality (McIlvoy), and twelve capital cases where the jury affixed punishment at life imprisonment without possibility of parole for fifty years rather than death.

This is like trying to compare apples and oranges. None of the twelve cases involved persons in lawful confinement. Without exception the killings in the twelve cases were far more extreme and horrendous than here and, finally, even so in none of the twelve was the death penalty inflicted. To the extent the cases are comparable they demonstrate that the death penalty in the present case is excessive and disproportionate.

The same is true of the killings in the Newlon, Mercer and McIlvoy cases. None involved persons in confinement and each of those killings is far more extreme and horrendous than that in the present case, yet even in these instances, in one case— McIlvoy — the death penalty was declared excessive and disproportionate. If that were true in McIlvoy, it certainly is true here.

The real rationale of the principal opinion lies in the belief that anything less than death for this defendant would be no more than a slap on the wrist, as he is already serving a life sentence for first degree murder. This assumes that this particular defendant would actually have served for life under his first degree murder charge, an assumption which has no factual basis.

It is common knowledge that today “life” imprisonment is a misnomer. 1 Only a small percentage of inmates with life sentences serve for life. Most inmates in the penitentiary are discharged, either because they have completed their sentence or (and this makes up the majority of the cases) because they are paroled. Of those sentenced to life imprisonment who are paroled, the average length of time served in prison is somewhere between fifteen and sixteen years.

It is much different, of course, with respect to a capital murder life sentence, as that is for life without possibility of parole for fifty years. A capital murder defendant under that sort of life sentence knows that he must serve a minimum of fifty years. Not so, however, for the inmate serving the ordinary type of life sentence.

Defendant was sentenced to life imprisonment in 1974. Although he stabbed inmate King in 1979, it does not follow that until that time he had not conducted himself in accordance with the prison rules and regulations and had caused no trouble. There is nothing in the record to the contrary. He may have been one of those serving a life sentence who otherwise would have been paroled in due course. How can it be said then that the imposition of another life sentence upon him, this time without possibility of parole for fifty years, amounts to no more than a signal “that there is no real cost for prisoners who kill while in confinement” and that nothing less than death amounts to more than a slap on the wrist?

There is no evidence before us to support the assumption that only the death sentence could serve as a deterrent to this particular defendant or others in his class. I am unwilling to make the assumption which the principal opinion has to make in order to affirm the defendant’s sentence of death.

The principal opinion uses the rational basis test to uphold the constitutionality of § 565.012.2(9). In order to use this test, it must first conclude that the statute does not impinge on “fundamental personal rights” because society has already deprived prisoners of liberty. I cannot agree with this analysis. Because a person is impris *693 oned, whether for life or for a short period of time, does not mean that that person has lost his “fundamental personal right” in life itself. The appropriate standard of review of this classification is the strict scrutiny test because the statute does trammel fundamental personal rights. Under this test, we should look at the state’s interest, determine whether it is compelling, and then determine if the statute impinges on the fundamental personal right in the least restrictive manner. See generally, Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969); L. Tribe, American Constitutional Law ch. 16 (1978). Under this analysis, this aggravating circumstance, § 565.012.2(9), would be unconstitutional because it is overinclusive. It does not differentiate between those who have nothing more to lose for a killing in prison unless they receive the death penalty and those who are not in that class.

I also point out that the principal opinion, as well as § 565.012.2(9) itself, is overinclu-sive. It lumps everyone in prison into the same category, whether there on a short sentence, such as a two year minimum, or there on a sentence which because of time already served will be completed in a short time or terminated by parole in a reasonable time. There are many prisoners to whom the penalty of further imprisonment under the capital murder statute, involving as it does life imprisonment without possibility of parole for fifty years, would be the strongest kind of deterrent. 2 Yet the justification used by the principal opinion for affirming the death penalty is that to do otherwise means there is no real cost for prisoners who kill while in confinement. The facts of real life are otherwise.

. According to the 35th Annual Report of the Missouri Board of Probation and Parole 5 (1980-81), “Sooner or later, 98% of all prisoners are released.”

. It would be different, of course, for a capital murderer who is already under a life sentence without possibility of parole for fifty years, but that is not this case and the statute does not so limit itself.

It is my understanding that the present population of the state penitentiary in Jefferson City is approximately 1,900 to 2,000 and that of these approximately 80 to 85 inmates are serving a capital murder life sentence without possibility of parole for fifty years. If this group increases on the average of 20 per year, there will be around 1,000 such inmates in the penitentiary before any one of them is eligible for parole. I think it is to this class of inmates that the suggestions which the principal opinion attributes to the United States Supreme Court that an intentional killing by an inmate might justify mandatory imposition of the death penalty might apply. To repeat, the present is not such a case.