State v. Ervin

WOLFF, Judge,

concurring in part and dissenting in part.

In the circumstances of this trial, where the jury deadlocked on whether or not to *167 impose the death penalty, I find the evidence insufficient to support the trial judge’s decision to impose the death penalty. This is a case where one has to strain to find evidence sufficient to sustain a verdict that this was a premeditated killing done after cool reflection. Yet the trial court found enough evidence to submit the case, and the jury found the defendant guilty of first-degree murder. Upon review of the evidence, I just barely concur that there was a submissible case of first-degree murder. Furthermore, in order to impose the death penalty, the jury was required to find that this killing involved torture and depravity of mind or that the killing was done for money. One or more of the jurors were unable to agree that death is the appropriate penalty. I agree with those jurors on that point, find no evidence to support the death penalty, and so, dissent from the majority’s decision to affirm the death penalty imposed by the trial court.

Rufus James Ervin and the victim, Leland White, had known each other for fifteen years or so at the time of White’s killing. Ervin and White discussed buying land together sometime early during their friendship. When Ervin returned from Army training camp in the early 1980’s, White had bought the land in Reynolds County on which this altercation and killing occurred. Ervin moved to the land first, and, in 1985 or 1986, White moved there permanently.

Initially, the two men lived together in a sixteen-foot by eighteen-foot trailer on the property. Later they purchased a second trailer. White moved into the new trailer while Ervin kept the first trailer. They linked the two trailers together. Ervin lived there part-time and in the St. Louis area part-time with his mother.

In August 1994, Ervin had a mechanical business, was a temporary laborer, and did some carpentry. On August 31, 1994, Ervin worked during the day at a manufacturing plant in Jefferson County and was called back for a night shift. After working briefly on the night shift, Ervin and three other men went to the Reynolds County property, arriving between 1:30 and 2:30 a.m. The men had been drinking. Prior to the trip, White had contacted Ervin about buying another piece of land and had asked Ervin to meet with him as soon as possible. When Ervin and the other men arrived at the property, White came out to greet them. White and Ervin shook hands and went into the trailer while the other men waited in the ear drinking.

After about fifteen minutes, a fight or confrontation of some kind broke out inside the trailer. Ervin was heard to scream, “This is mine. This is mine.” A lamp apparently tipped over during this fight setting fire to the trailer. A witness heard White say, “Don’t let me burn. Don’t let me burn.” Ervin dragged White out of the burning trailer and propped him against a tree.

At this point, Ervin, who was thirty-four years old at the time, had overpowered and perhaps beaten and cut White, who was then sixty-six years old. Yet, Ervin at this point had saved White from the burning trailer.

When Ervin put White against the tree, White then said, “Go ahead and kill me, James,” and Ervin took a brick and hit him in the head several times, killing him.

To convict Ervin of first-degree murder, the state must prove beyond a reasonable doubt that he knowingly caused the death of another person “after deliberation upon the matter.” Section 565.021.1, RSMo 1994. “Deliberation” is statutorily defined as “cool reflection for any length of time no matter how brief; ...” Section 565.002.3, RSMo 1994. The time may be brief, but it cannot be nonexistent. Ordinarily, deliberation must be proved through evidence of circumstances surrounding the killing. State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998). See also, State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997); and State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991). Ervin’s action of saving White from the burning trailer and then killing him is paradoxical when one tries to infer deliberation up to that point. Ervin’s act of hitting White again after the initial sequence of blows out by the tree appears to bring the case in line with those cases in which this Court has sustained convictions where a beating took place over a period of time. See, e.g., State v. Johnston, 957 S.W.2d 734, 748-749 (Mo. banc 1997); State v. Roberts, 709 S.W.2d 857, 863 (Mo. *168 banc 1986), cert. denied, 479 U.S. 946 , 107 S.Ct. 427 , 93 L.Ed.2d 378 (1986); and State v. LaRette, 648 S.W.2d 96, 103 (Mo. banc 1983), cert. denied, 464 U.S. 1004 , 104 S.Ct. 515 , 78 L.Ed.2d 702 (1983). Though there does not seem to be much of a time sequence here, there is enough, barely, to support the jury’s verdict.

In the penalty phase, the jury deadlocked on the question of whether or not the death sentence should be imposed. The jury deadlock on punishment has the effect of referring the matter to the trial judge for his or her determination. State v. Griffin, 756 S.W.2d 475, 486-488 (Mo. banc 1988). While the two phases of a capital murder trial are viewed separately, they are presented to the same jurors who have heard the evidence as to the circumstances of the killing. This was a death-qualified jury, that is, all members were screened to ascertain that they could, if the evidence so warranted, recommend imposition of the death penalty. But this death-qualified jury could not.

It is plausible, without speculating too broadly, that individual jurors, having acquiesced to the collective conscience of the group as to the sufficiency of the evidence of premeditated murder, were unable to bring themselves to recommend imposition of the death penalty on these facts. 1

The trial judge’s findings were that Ervin’s act involved torture and depravity of mind and warranted the death penalty. 2 When the trial judge assessed the death penalty, presumably he used the same standards as were submitted to the jury, that is, that the murder of Leland Wfliite “involved torture and depravity of mind and, ... as a result thereof, the murder was outrageously and wantonly vile, horrible and inhuman.” Further, as the jury was told, a determination of depravity of mind can only be made if “the defendant committed repeated and excessive acts of physical abuse upon Leland White and the killing was therefore unreasonably brutal.” In State v. Preston, 673 S.W.2d 1, 11 (Mo. banc 1984), cert. denied, 469 U.S. 893 , 105 S.Ct. 269 , 83 L.Ed.2d 205 (1984), this Court noted the following factors to be considered in finding depravity of mind: “mental state of defendant, infliction of physical or psychological torture upon the victim as when the victim has a substantial period of time before death to anticipate and reflect upon it; brutality of defendant’s conduct; mutilation of the body after death; absence of any substantive motive; absence of defendant’s remorse and the nature of the crime.”

An intentional killing of another human being often can be equated with having a depraved mind. But the law demands more, as Preston indicates. In the specific instance here, the trial court found torture. By ordinary definition, torture involves.infliction of pain for its own sake. But the evidence does not support such a finding in this situation.

The pathologist, Dr. Zaricor, stated that the head injuries suffered by the victim would have rendered White immediately unconscious and he would have died fairly quickly. Similarly, the neck injuries would have disabled WTiite. Moreover, the doctor was unable to specify which injuries were inflicted first, although through history based upon witness testimony, he believes the neck injuries could have been sustained first. If the head injuries occurred first, White did not suffer physical pain for any substantial period of time, since the head injuries would have rendered him unconscious very quickly after they were inflicted. Moreover, as one of the witnesses testified, it was White who asked that Ervin kill him after Ervin had dragged him out of the fire. There is no evidence that Ervin intended to cause White unnecessary or prolonged suffering, or that Ervin inflicted pain for its own sake, so as to support the finding of the trial court that there was torture and depravity of mind.

In another context, this Court held in State v. Chaney, 967 S.W.2d 47 (Mo. banc 1998) *169 that, while the evidence may be sufficient to sustain a finding of first degree murder, a sentence of death would be vacated where the evidence was not sufficiently strong or compelling. In Chaney , of course, the defendant denied being the perpetrator. Id. In this case, there is no question that Ervin beat Leland White to death. But there is little evidence to sustain the finding of premeditation, and none to show torture and depravity of mind. As such, I would reduce the sentence of death to life imprisonment.

. Ervin said his law enforcement interrogators raised the specter of lynching since Ervin is African-American and his victim was a white man, in a rural, mostly white county. Though the allusion to race is raised, there is no evidence that race was a factor in the outcome of this trial where a white jury was unable to agree upon the penalty.

. The trial judge did not find that Ervin murdered White for money, which was the other aggravating circumstance submitted to the jury.