State v. Preston

BLACKMAR, Judge,

concurring in result.

I fully concur in the principal opinion to the extent that it affirms the conviction of capital murder.

I also agree that the sentence of death is properly affirmed, but solely because I am bound by State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982), cert. denied, 459 U.S. 884 , 103 S.Ct. 185 , 74 L.Ed.2d 149 (1982). That case involved a killing by several blasts of a shotgun, following a robbery. The only statutory aggravating circumstance found *13 by the jury is the same one which was found in this case. 1

Our Newlon opinion stresses the deliberateness of the killing, as does Judge Gunn’s opinion in this ease. Newlon goes on to pose alternatives as follows:

[I]f Mr. Dave was dead after the initial shot, the second blast, deliberately performed in the manner described, would have served to mutilate the corpse, a macabre purpose demonstrating depravity. If, on the other hand, Mansfield Dave was still alive, the second shot was to insure the killing, and the first blast from this sawed off shotgun must have inflicted extreme suffering....

Id. at 622 .

I simply cannot believe that this showing was sufficient under Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980), which requires “a consciousness materially more ‘depraved’ than that of any person guilty of murder ... ”, Id. at 433 , 100 S.Ct. at 1767 , and implicitly approved other Georgia cases requiring “torture or ... aggravated battery before killing_” Id. 431 , 100 S.Ct. at 1766 . The analysis of Godfrey in Judge Seiler’s dissent seems essentially sound to me. 627 S.W.2d at 623, 626-27 . The Supreme Court of the United States, however, let Newlon stand. That Court has often cautioned that denial of certiorari does not imply approval of the holding of the court below, but, when one of our decisions is challenged because of alleged conflict with a very recent decision, and certiorari is denied, there is presumptive support for our holding.

In this case, just as in Newlon , the victim, Richardson, must have suffered greatly between the time the defendant announced his intentions and the time of the last, fatal knife wound. The bizarre actions of the defendant following the killing may be analogized to the corpse mutilation which Newlon found significant. But for that case I would consider the circumstances set out in the principal opinion insufficient under Godfrey. Cf. Phillips v. State, 250 Ga. 336 , 297 S.E.2d 217 (1982), holding that mutilation of a corpse is not sufficient to demonstrate “depravity” in the sense required in Godfrey . I find much more indication of depravity in the Godfrey case than here or in Newlon. See dissenting opinion of Justice White in Godfrey, 446 U.S. at 444, 450-51 , 100 S.Ct. at 1773, 1776-77 , and also the statement of the defendant, “I have been thinking about it for eight years ... I’d do it again_” Id. at 426 , 100 S.Ct. at 1763 . I also utterly reject the suggestion of the Attorney General, made at oral argument, that Godfrey is authoritative only under the Georgia statute and not under our statute. 2 Nor do I accept the suggestion in Newlon that “Godfrey ... rests on its unique facts_” Id. at 621 . I do not believe that the Supreme Court of the United States grants certiorari to consider unique facts.

Because of Newlon , however, my vote is to affirm the conviction and the sentence. The double killing persuades me that the case is more aggravated than Newlon, State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983) and State v. Lashley, 667 S.W.2d 712 (Mo. banc 1984).

. Section 565.012.2(7), RSMo Cum.Supp.1983, reads as follows: "The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind;"

. The portion of the Georgia statute there under consideration reads as follows:

(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravating battery to the victim. Ga.Code Ann. § 27 — 2534.1(b)(7) (1978).