State v. Blair

SEILER, Judge,

dissenting.

I respectfully dissent. The aggravating circumstance found by the jury that the murder was committed for the purpose of interfering with a lawful custody in place of lawful confinement of Larry Jackson is not supported by the evidence. The killing of the victim did not in any way affect or change the lawful custody of Larry Jackson, who was in jail on various charges, including murder and robbery of one Jerry W. Han, as well as alleged rape of Miss Allen. See State v. Jackson, 608 S.W.2d 420 (Mo.1980). In my opinion the aggravating circumstance of interfering with lawful *761 custody refers to interfering with present custody. The meaning of lawful custody is discussed at some length in State v. Trimble, 638 S.W.2d 726 (Mo. banc 1982), from which it is apparent that the custody under examination is present custody, not a future possibility. The only way that the killing of Miss Allen could have borne on the custody of Larry Jackson would be as to how it would affect the outcome of some future trial of Jackson for her alleged rape, and there is no way that can be determined at this point or at the time of the trial of defendant. Jackson could have been convicted of her rape even though she were dead. There may have been a witness, or defendant may have confessed, or circumstantial evidence might be sufficient. On the other hand, Jackson might have been acquitted. We have no way of knowing, nor did the jury, whether Jackson’s rape trial would have resulted in his being in lawful custody as a consequence thereof or not.

Jackson unquestionably was in lawful custody at the time Miss Allen was killed, Trimble, supra, and this was not changed or interfered with by her death.

The question of whether a death penalty can be upheld when one or more of the aggravating circumstances found by the jury is not in fact present remains to be seen. In Zant v. Stephens, - U.S. -, 102 S.Ct. 1856 , 72 L.Ed.2d 222 (1982), the court asked the Georgia Supreme Court to answer the question of what premises of state law support the conclusion that a death sentence is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury. The court sent the ease back for answer to this certified question despite the argument of the Georgia attorney general that the aggravating circumstances are merely a threshold factual determination the jury must make. The difficulty is that there is no way to tell whether the jury relied on the invalid circumstance and, hence, no way to determine whether the imposition of the death penalty was arbitrary and capricious.

We do not know how the Georgia Supreme Court or the United States Supreme Court will decide on this; and, in the meantime, we should not assume that invalidity of an aggravating circumstance found by the jury will be held to be immaterial.