Appendix — Bullington v. Missouri

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No. 79-6740

In the Supreme Court of the United States

OCTOBER TERM, 1980

ROBERT BULLINGTON,

Petitioner

—P) .——

STATE OF MIssourRI,

Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

JOINT APPENDIX

RICHARD H. SINDEL JAMES CooK

SINDEL, SINDEL & SINDEL Assistant Prosecuting Attorney

15A N. Meramec, Suite 200 7900 Carondelet

Clayton, Missouri 63105 Clayton, Missouri 63105

(314) 721-6040 (314) 889-2587

Counsel for Petitioner Counsel for Respondent

PETITION FOR CERTIORARI FILED JUNE 9, 1980.

CERTIORARI GRANTED OCTOBER 6, 1980.

Docket Entries .................................. ecillichldeaidiba heaps te eae

ASA AR SL TERS SIE, IATL Ie

Notice of Evidence in Aggravation .........

Motion to Quash Jury Panel...

Jury Instructions 30, 32, 33, 35, 36, 37, 38, 39—Penalty

i ETAT OEP eta) re sae aed aE es EAP ea

Motion for Judgment of Acquittal or in the Alternative

PP Oe UE NU veins ec koe i lee ae

Order Sustaining Defendant’s Motion for New Trial.

Prosecuting Attorney’s Second Notice of Evidence in

Aggravation ................... ICEL RARE RS VARS ER a

Motion to Strike Plaintiff’s Notice of Evidence in Ag-

gravation and to Exclude From Trial Evidence in

Aggravation of Punishment... it

ITED: <chbbasnccdemintenpeneenibaipicinniteebiadibanialaiertaniaecae ict pt

Motion for Rehearing or in the Alternative to Transfer

to the Supreme Court En Banc...

State’s Oral Argument Before the Supreme Court of

BI salen dicceceacgiec pis eke ce ee eee Be ee

Portion of Petitioner’s Argument Before the Supreme

Pe OE IN joiiiieckte a ee

ii INDEX

Page

State’s Oral Argument—Rebuttal ........ 74

Supreme Court of Missouri’s Opinion .................... oes kee 80

Order of the Supreme Court of the United States

Granting Motion for Leave to Proceed in forma pau-

peris and Granting Petition for Writ of Certiorari.. 128

DOCKET ENTRIES

12-9-77 Indictment, Circuit Court, County of St. Louis

1-13-78 Information in Lieu of Indictment, Circuit Court,

County of St. Louis

7-7-78 Notice of Evidence in Aggravation, Jackson County

Circuit Court

7-8-78 Defendant’s Motion to Quash Jury Panel

7-26-78 Amendment of the Information

10-2-78 Trial in Circuit Court, Jackson County commences

10-11-78 Trial Resumes. Some parties appear; same jury

appears. Instructions 3 through 29, read to jury. Final

argument by State and Deft. Jury to Jury Room with

Instructions through 29, inclusive, and verdict forms at

2:45 P.M. to begin deliberations. Jury returns at

9:30 P.M. with the following verdicts: “As to Count I,

we, the jury, find the defendant, Robert Bullington,

guilty of Capital Murder, as in Instructions No. 10.

/8/ T. William Lowry, Foreman.”

10-12-78 Penalty portion of Trial begins. Same parties

appear; same jury appears. State’s evidence begins and

concludes. Deft. adduces no evidence. Court reads In-

structions 30, 31, and 82 to jury prior to introduction

of evidence. After evidence Court reads Instructions

33 through 39, inclusive to jury. Argument made by

State and Deft. Jury to jury room with instructions 30

through 39, inclusive at 3:00 P.M. to deliberate penalty.

Jury returns at 3:50 P.M. with following verdict on

Count I: “As to Count I, we, the jury, having found

the deft. guilty of the capital murder of Pamela Sue

Wright, fix the punishment at imprisonment for life by

division of corr., without eligibility for probation or

parole until the deft. has served a minimum of fifty

years of his sentence. /s/ T. William Lowry, Foreman.”

11-20-78 Defendant files Motion for Judgment of Acquittal

or in the Alternative for a New Trial

(1)

2-13-79 Order: Deft.’s Motion for Judgment of Acquittal

be overruled and deft.’s Motion for New Trial be sus-

tained on the ground stated in paragraph 46 of the

New Trial Motion. The cause is transferred to criminal

Docket “A” for reassienment.

3-1-79 Asst. Prosecuting Attorney of Clayton, Missouri, files

Notice of Evidence in Aggravation

3-14-79 Attorney for Defendant files Motion to Strike

Plaintiff’s Notice of Evidence in Aggravation and to

Exclude from Trial Evidence in Aggravation of Punish-

ment. 4

5-17-79 Petition for Writ of Mandamus (In The Alternative

to a Petition for Writ of Prohibition), filed in Missouri

Court of Appeals, Western District

5-17-79 Stop Order directed to the Hon. Donald L. Mason,

Judge, Sixteenth Judicial Circuit, Jackson County, Mis-

souri, Division 11, filed.

5-30-79 Relator’s Petition for Writ of Mandamus and AIl-

ternative Petition for Writ of Prohibition denied, Stop

Order entered 5-17-79 dissolved.

6-1-79 Motion for Rehearing or in the Alternative to Trans-

fer to the Supreme Court En Banc filed.

STATE OF MISSOURI

IN THE CIRCUIT COURT

OF ST. LOUIS COUNTY

402723

STATE OF MISSOURI

v8.

ROBERT ERNEST BULLINGTON W/M/36

2821 Gatling

St. Louis, Mo., DEFENDANT

DOB: 8/16/41

Ht. 6/1” Wt. 165 lbs.

St. Louis County P.D.

77-42854

CHARGE: CT. I: CAPITAL MURDER

CT. II: KIDNAPPING

CT. II: ARMED CRIMINAL ACTION

CT. VI: BURG. 1ST DEGREE

CT. V&VI: FLOUR. DANGEROUS &

DEADLY WEAPON

AFFIANT: Det. Chasteen

DATE WARRANT ISSUED: October 14, 1977

O&P 559.005

Rev. Mo. Stat. O&P 559.240

O&P 559.225 0-560.040

P-560.095 O&P 564.610

P.D.: St. Louis County

WITNESSES: (HOLD FOR GRAND JURY)

Ptn. Robert Manlon #1352

Det. Albert Chasteen #448

Det. Lester Reinhardt #568

St. Louis County P.D.

Mrs. Mary Jane Wright

John Perry Wright

136 Martigney

St. Louis County

Custodian of Records

Mo. Dept. of Revenue

Jefferson City, Mo.

INDICTMENT—Filed Dee. 9, 1977

STATE OF MISSOURI

COUNTY OF ST. LOUIS ) 88

COUNT I

The Grand Jurors for the State of Missouri, now here

in Court, duly empaneled, sworn and charged to inquire

within and for the body of the County of St. Louis, and

State aforesaid, upon their oath present and charge that

in the County of St. Louis and State of Missouri, on or

about the 3rd day of September, 1977, the defendant did

wilfully, unlawfully and feloniously knowingly, deliber-

ately, premeditatedly and of his malice aforethought,

make an assault upon one Pamela Sue Wright, the said

ROBERT ERNEST BULLINGTON then and there un-

lawfully, wilfully, feloniously, knowingly, deliberately,

premeditatedly and of his malic abet bong and with

the intent to take the life of Pamela Sue Wright, did

suffocate the body of Pamela St Wright thereby in-

flicting mortal injury from whi#f Pamela Sue Wright

did die on or about September 3, 1977;

COUNT II

The Grand Jurors for the State of Missouri, now here

in Court, duly empaneled, sworn and charged to inquire

within and for the body of the County of St. Louis, and

State aforesaid, upon théfr oath present and charge that

in the County of St. Louis and State of Missouri, on or

about the 3rd day of September, 1977, the defendant did

wilfully, unlawfully, and feloniously, and without lawful

autherity, forcibly seize, confine and kidnap one Pamela

Sue Wright with intent to cause said person to be secretly

confined within the state against her will;

COUNT III

The Grand Jurors for the State of Missouri, now here

in Court, duly empaneled, sworn and charged to inquire

within and for the body of the County of St. Louis, and

State aforesaid, upon their oath present and charge that

in the County of St. Louis and State of Missouri, on or

about the 3rd day of September, 1977, the defendant did

wilfully, unlawfully and feloniously commit the crime,

Kidnapping, a felony, under the laws of this State, with

or through the use, assistance or aid of a dangerous and

deadly weapon, to-wit: shotgun;

COUNT IV

The Grand Jurors for the State of Missouri, now here

in Court, duly empaneled, sworn and charged to inquire

within and for the body of the County of St. Louis, and

State aforesaid, upon their oath present and charge that

in the County of St. Louis and State of Missouri, on or

about the 3rd day of September, 1977, the defendant did

wilfully, unlawfully and feloniously and burglariously

break and enter the dwelling house of Mrs. Mary Wright,

hereinafter referred to as the victim, in which dwelling

house there was at the time a human being, and that

said ROBERT ERNEST BULLINGTON, did break and

enter into said dwelling house by forcibly breaking or

busing the outer basement door, of the said dwelling

house with the intent to commit a felony, to-wit: Kid-

napping;

COUNT V

The Grand Jurors for the State of Missouri, now here

in Court, duly empaneled, sworn and charged to inquire

within and for the body of the County of St. Louis, and

State aforesaid, upon their oath present and charge that

in the County of St. Louis and State of Missouri, on or

about the 3rd day of September, 1977, the defendant did

wilfully, unlawfully and feloniously in the presence of

one Mrs. Mary Wright, exhibit and flourish a certain

dangerous and deadly weapon, to-wit: shotgun, in a rude,

angry or threatening manner;

COUNT VI

The Grand Jurors for the State of Missouri, now here

in Court, duly empaneled, sworn and charged to inquire

within and for the body of the County of St. Louis, and

State aforesaid, upon their oath present and charge that

in the County of St. Louis and State of Missouri, on or

about the 3rd day of September, 1977, the defendant did

wilfully, unlawfully and feloniously, in the presence of

one John Wright, exhibit and flourish a certain danger-

ous and deadly weapon, to-wit: shotgun, in a rude, angry

or threatening manner; contrary to Missouri Revised

Statutes in such case made and provided, against the

peace and dignity, of the State.

A TRUE BILL No TRUE BILL

/s/ ([Illegible] /s/

Foreman Foreman

/s/ (Illegible]

Asst. Pros. Atty.

No. —————

September Term, 1977

Bail—No BoNnD

/s/ Milton Saitz

Circuit Judge

St. Louis County

Cir.Ct.No. 402723

SUBSTITUTE INFORMATION IN LIEU

OF INDICTMENT

STATE OF MISSOURI

)

> me

COUNTY OF ST. LouIs )

IN THE CIRCUIT COURT OF THE

COUNTY OF ST. LOUIS

STATE OF MISSOURI

STATE OF MISSOURI, PLAINTIFF

vs.

ROBERT ERNEST BULLINGTON, DEFENDANT

Charge:

I: Capital Murder (559.005)

II: Kidnapping (559.240)

III: Armed Criminal Action (559,225)

IV: Burglary First Degree (560.040/560.095

V&VI: Flourishing Dangerous & Deadly Weapons

(564.610)

And Four Prior Convictions of Felonies

James J. Cook, Assistant Prosecuting Atiorney, in and

for the County of St. Louis, on behalf of the State of

Missouri, upon official oath informs the Court as follows:

That ROBERT ERNEST BULLINGTON in the City

of St. Louis, State of Missouri, on the 13th day of Janu-

ary, 1959, in the Circuit Court thereof, waseduly con-

victed by said Court of the offense, Burglary Second De-

gree and Stealing, a felony, and in compliance with said

conviction was duly sentenced to serve two (2) years in

custody of the Missouri Department of Corrections for

the Burglary and a consecutive term of three (3) years

for the Stealing a total sentence of five (5) years, and

in compliance with said conviction and sentence was duly

received at and imprisoned in said Department of Cor-

rections on February 13, 1959;

And That, Thereafter, in the City of St. Louis, State of

Missouri, on the 13th day of January, 1959, in the Cir-

cuit Court thereof, the said defendant was duly convicted

by said Court of the offense, Robbery First Degree, a

felony, and in compliance with said conviction was duly

sentenced to serve five (5) years in custody of the Mis-

souri Department of Corrections, and in compliance with

said conviction and sentence was duly received at and

imprisoned in said Department of Corrections on Febru-

ary 138, 1959;

And That, Thereafter, in the City of St. Louis, State of

Missouri, on the 10th day of November, 1966, in the

Circuit Court thereof, the said defendant was duly con-

victed by said Court of the offense, Stealing Fifty

($50.00) or over (Motor Vehicle), a felony, and in com-

pliance with said conviction was duly sentenced to serve

five (5) years in custody of the Missouri Department of

Corrections, and in compliance with said conviction and

sentence was duly received at and imprisoned in said

Department of Corrections on December 9, 1966;

And That, Thereafter, in the City of St. Louis, State of

Missouri, on the 17th day of February, 1971, in the

Circuit Court thereof, the said deféndant was duly con-

victed by said Court of the offense, Kidnapping While

Armed, a felony, and in compliance with said convic-

tion was duly sentenced to serve ten (10) years in cus-

tody of the Missouri Department of Corrections, and in

compliance with said conviction and sentence was duly

received at and imprisoned in said Department of

Corrections;

COUNT I

James J. Cook, Assistant Prosecuting Attorney, in and

for the County of St. Louis, on behalf of the State of

Missouri, upon official oath informs the Court as follows:

That ROBERT ERNEST BULLINGTON in the

County of St. Louis, State of Missouri, on or about the

3rd day of September, 1977, did willfuly, unlawfully

and feloniously knowingly, deliberately, premeditatedly

and of his malice aforethought, make an assault upon

one Pamela Sue Wright, the said ROBERT ERNEST

BULLINGTON then and there unlawfully, wilfully,

feloniously, knowingly, deliberately, premeditatedly and

of his malice aforethought and with the intent to take

the life of Pamela Sue Wright, did suffocate the body of

Pamela Sue Wright thereby inflicting mortal injury from

which Pamela Sue Wright did die on or about September

3, 1977;

COUNT II

James J. Cook, Assistant Prosecuting Attorney, in and

for the County of St. Louis, on behalf of the State of

Missouri, upon official oath informs the Court as follows:

That ROBERT ERNEST BULLINGTON in the

County of St. Louis, State of Missouri, on or about the

3rd day of September, 1977, did wilfully, unlawfully and

feloniously, and without lawful authority, forcibly seize,

confine and kidnap one Pamela Sue Wright with intent

to cause said person to be secretly confined within the

state against her will;

COUNT III

James J. Cook, Assistant Prosecuting Attorney, in and

for the County of St. Louis, on behalf of the State of

Missouri, upon official oath informs the Court as follows:

That ROBERT ERNEST BULLINGTON in the

County of St. Louis, State of Missouri, on or about the

3rd day of September, 1977, did wilfully, unlawfully and

feloniously commit the crime, Kidnapping, a felony under

the laws of this State, with or through the use, assist-

ance or aid of a dangerous and deadly weapon, to-wit:

shotgun ;

COUNT IV

James J. Cook, Assistant Prosecuting Attorney, in and

for the County of St. Louis, on behalf of the State of

Missouri, upon official oath informs the Court as follows:

That ROBERT ERNEST BULLINGTON in the

County of St. Louis, State of Missouri, on or about the

8rd day of September, 1977, did wilfully, unlawfully and

feloniously and burglariously break and enter the dwelling

house of Mrs. Mary Wright, hereinafter referred to as

the victim, in which dwelling house there was at the

time a human being, and that said ROBERT ERNEST

BULLINGTON, did break and enter into said dwelling

house by forcibly breaking or bursting the outer base-

ment door, of the said dwelling house with the intent

to commit a felony, to-wit: Kidnapping;

COUNT V

James J. Cook Assistant Prosecuting Attorney, in and

for the County of St. Louis, on behalf of the State of

Missouri, upon official oath informs the Court as follows:

That ROBERT ERNEST BULLINGTON in the

County of St. Louis, State of Missouri, on or about the

8rd day of September, 1977, did wilfully, unlawfully and

feloniously in the presence of one Mrs. Mary Wright,

exhibit and flourish a certain dangerous and deadly

weapon, to-wit: shotgun, in a rude, angry or threatening

manner;

COUNT VI

James J. Cook, Asssitant Prosecuting Attorney, in and

for the County of St. Louis, on behalf of the State of

Missouri, upon official oath informs the Court as follows:

That ROBERT ERNEST BULLINGTON in the

County of St. Louis, State of Missouri, on or about the

3rd day of September, 1977, did wilfully, unlawfully and

feloniously, in the presence of one John Wright, exhibit

and flourish a certain dangerous and deadly weapon, to-

wit: shotgun, in a rude, angry or threatening manner;

ec: Joseph Downey

Asst Public Defender

314-889-2587

[SEAL]

OFFICE OF PROSECUTING ATTORNEY

St. Louis County

Courts Building

Clayton, Missouri 63105

July 7, 1978

COURTNEY GOODMAN JR.

Prosecuting Attorney

Mr. Richard Sindel

Attorney at Law

34 North Brentwood

St. Louis, MO 63105

RE: State of Missouri v.

ROBERT E. BULLINGTON

402723 (CR78-0768)

Dear Mr. Sindel:

Pursuant to R.S. MO. 565.006, please be informed that

if a conviction of Capital Murder results from the trial

of Mr. Robert Bullington, and the State of Missouri elects

to seek the death penalty, the evidence of the following

aggravating circumstances will be presented:

“The offense was committed by a person with a

prior record of conviction for capital murder, or the

offense was committed by a person who has a sub-

stantial history of serious assaultive criminal con-

victions ;” 565.012 2. (1)

“The offense was outrageously or wantonly vile, hor-

rible or inhuman in that it involved torture, or de-

pravity of mind;” 565.012 2(7)

More specifically the State would use as evidence the

four prior convictions which are listed in the Substitute

Information in Lieu of Indictment. Also, the State would

use as evidence the facts surrounding those convictions;

particularly the convictions of Robbery First Degree and

Kidnapping. I will provide for you a copy of the Kid-

napping police report.

As to the other aggravating circumstances, the State

would present to the jury the facts of the case. Of course

the discovery process has already provided you with that

information.

Very truly yours,

/s/ James J. Cook

JAMES J. COOK

Assistant Prosecuting Attorney

JJC:er

ec: Honorable Donald Mason

ce: Court file

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

Criminal Docket A

Division No. 11

Circuit Court No. 78-0768

STATE OF MISSOURI, PLAINTIFF

— NS

ROBERT H. BULLINGTON, DEFENDANT

MOTION TO QUASH JURY PANEL—

Filed July 8, 1978

Comes now the Defendant, Robert H. Bullington, by

Richard H. Sindel, counsel, and moves the Court to quash

any jury panel that may be produced as prospective

jurors in this cause.

As grounds for this Motion, the Defendant alleges as

follows:

1. Section 494.031, V.A.M.S., provides:

The following persons shall upon their timely ap-

plication to the court be excused from service as a

juror either grand or petit. ...

(2) Any woman who requests exemption before be-

ing sworn as a juror;...

Article I, Section 22(b) of the Constitution of Missouri

(1945) provides:

No citizen shall be disqualified from jury service

because of sex, but the court shall excuse any woman

who requests exemption therefrom before being

sworn as a juror.

The “Official Notice and Questionnaire” prescribed by

Section 497.130, V.A.M.S. for distribution to prospective

jurors, contains the following paragraph:

TO WOMEN:

The Constitution permits women to elect to serve

or not to serve as jurywomen. Any woman who

elects not to serve will fill out this paragraph and

mail this questionnaire to the jury commissioner at

once. It will not be necessary to answer the other

questions.

(Signature)

These provisions, which result in a disproportionately

small number of women being available for jury service,

deny the defendant his right to have a jury panel selected

from a fair cross-section of the community as guaranteed

by the Sixth and Fourteenth Amendments to the United

States Constitution. Taylor v. Louisiana, 419 U.S. 522,

95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

2. Section 497.130, V.A.M.S., also provides as

follows:

1. The board of jury supervisors shall at least

biannually compile a list of as many names as the

board of jury supervisors designates in a written

order made for the purpose by consulting any public

records...

The list in no case shall contain less than twenty-

five thousand names to be selected as nearly as may

be equally from the several voting precincts in the

county...

Defendant alleges that the lists of prospective jurors in

Jackson County are not made up of names selected by

“consulting any public records.” Rather, prospective

jurors are selected only from lists of registered voters,

thereby drastically limiting the number of citizens that

are potentialiy available for jury service. Therefore,

jury panels are not selected in accordance with the state

law.

WHEREFORE, the Defendant prays the Court wo

quash any jury panel produced and to declare Section

494.031, V.A.M.S., and Article I, Section 22(b) of the

Constitution of Missouri in violation of the rights guaran-

teed by the Sixth and Fourteenth Amendments to the

United States Constitution.

Respectfully submitted,

/8/ Richard H. Sindel

RICHARD H. SINDEL

Counsel for Defendant

SINDEL, SINDEL & SINDEL

34 N. Brentwood, Ste. 14

Clayton, Missouri 63105

314/721-6040

[Certificate of Service Omitted in Printing]

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

Case No. CR78-0768

Division No. 11

Criminal Docket “A”

STATE OF MISSOURI, PLAINTIFF

v8.

ROBERT ERNEST BULLINGTON, DEFENDANT

Ct. 1—Capital Murder

Ct. 2—Kidnapping

Ct. 3—Armed Criminal Action

Ct. 4—Flour. Dang. & Dead. Wpn.

Ct. 5—Flour. Dang. & Dead. Wpn.

MEMORANDUM

COMES NOW the State of Missouri by the Assistant

Prosecuting Attorney, James J. Cook, and asks leave of

court to amend the above styled cause to change the word

“suffocate” in COUNT I to the word “drown”.

JAMES J. COOK

Assistant Prosecuting Attorney

EXCERPTS FROM JURY INSTRUCTIONS

INSTRUCTION NO. 10

As to Count I, if you find and believe from the evi-

dence beyond a reasonable doubt:

First, that between September 3, 1977 and Septem-

ber 11, 1977, in the County of St. Louis, State of

Missouri, the defendant caused the death of Pam-

ela Sue Wright by drowning her, and

Second, that the defendant intended to take the life

of Pamela Sue Wright, and

Third, that the defendant knew that he was prac-

tically certain to cause the death of Pamela Sue

Wright, and

Fourth, that the defendant considered taking the life

of Pamela Sue Wright and reflected upon this

matter coolly and fully before doing so,

then you will find the defendant guilty under Count I of

capital murder.

However, if you do not find and believe from the evi-

dence beyond a reasonable doubt each and all of these

propositions, you must find the defendant not guilty

under Count I of that offense.

INSTRUCTION NO. 12

As to Count I, if you do not find the defendant guilty

of capital murder, then you must consider whether he is

guilty of murder in the first degree.

As to Count I, if you find and believe from the evi-

dence beyond a reasonable doubt:

First, that between September 8, 1977 and Septem-

ber 11, 1977, in the County of St. Louis, State of

Missouri, the defendant caused the death of Pam-

ela Sue Wright by drowning her, and

Second, that the defendant did so to prevent detec-

tion after kidnapping or to promote escape after

kidnapping Pamela Sue Wright,

then you will find the defendant guilty under Count I

of murder in the first degree.

However, if you do not find and believe from the evi-

dence beyond a reasonable doubt each and all of these

propositions, you must find the defendant not guilty un-

der Count I of that offense.

Kidnapping is defined as willfully and without lawful

authority, forcibly to seize, confine, inveigle, decoy or

kidnap any person, with intent to cause such person to be

secretly confined against his will.

INSTRUCTION NO. 14

As to Count I, if you do not find the defendant guilty

of capital murder or murder in the first degree, you

must consider whether he is guilty of murder in the sec-

ond degree,

As to Count I, if you find and believe from the evi-

dence beyond a reasonable doubt:

First, that between September 3, 1977 and Septem-

ber 11, 1977, in the County of St. Louis, State of

Missouri, the defendant caused the death of Pam-

ela Sue Wright by drowning her, and

Second, that the defendant intended to take the life

of Pamela Sue Wright, and

Third, that the defendant did not do so in anger or

fear suddenly provoked by the unexpected acts or

conduct of Pamela Sue Wright,

then you will find the defendant guilty under Count I of

murder in the second degree.

However, if you do not find and believe from the evi-

dence beyond a reasonable doubt each and all of these

propositions, you must find the defendant not guilty un-

der Count I of that offense.

INSTRUCTION NO. 16

As to Count I, if you do not find the defendant guilty

of capital murder or murder in the first degree or murder

in the second degree, you must consider whether he is

guilty of manslaughter.

As to Count I, if you find and believe from the evi-

dence beyond a reasonable doubt that between Septem-

ber 3, 1977 and September 11, 1977, in the County of

St. Louis, State of Missouri, the defendant caused the

death of Pamela Sue Wright by drowning her, then you

will find the defendant guilty under Count I of man-

slaughter.

However, if you do not find and believe from the evi-

dence beyond a reasonable doubt each and all of the fore-

going, then you must find the defendant not guilty un-

der Count I of that offense.

STATE OF MISSOURI )

) SS

COUNTY OF JACKSON )

IN THE CIRCUIT COURT OF THE

COUNTY OF JACKSON

STATE OF MISSOURI

Cause No. CR78-0768

Division No. 11

STATE OF MISSOURI, PLAINTIFF

v8.

ROBERT E. BULLINGTON, DEFENDANT

VERDICT—Filed October 11, 1978

As to Count I, we, the jury, find the defendant, Robert

E. Bullington, guilty of capital murder, as submitted in

Instruction No. 10.

/s8/ [Illegible]

Foreman

EXCERPTS FROM JURY INSTRUCTIONS

INSTRUCTION NO. 30

You have found the defendant guilty of capital mur-

der. At this stage of the trial it will be your duty to

determine within the limits prescribed by law the punish-

ment which must be imposed for that offense.

The punishment prescribed by law for capital murder

is either death or imprisonment for life by the Division

of Corrections without eligibility for probation or parole

until the prisoner has served a minimum of fifty years

of his sentence.

INSTRUCTION NO. 382

It is your duty to follow the instructions and the law

as the Court gives them to you. However, no statement,

question, ruling or remark that I have made or may

make during the entire trial is intended to indicate my

opinion of what the facts are or what the punishment

should be. That will be your responsibility. In perform-

ing that duty you alone must decide upon the believability

of the witnesses and the weight and value of the evi-

dence.

You will recall that the Court told you at the first

stage of this trial that you must not assume as true any

fact solely because included in or suggested by a question

asked a witness. A question is not evidence, and may be

considered only as it supplies meaning to an answer.

INSTRUCTION NO. 33

You will now hear argument by the prosecuting attor-

ney and by counsel for the defendant regarding the pun-

ishment to be imposed. Their arguments are intended to

help you in understanding the evidence and applying the

law, but they are not evidence.

You will bear in mind that it is your duty to be gov-

erned by the evidence as you remember it, the reasonable

inferences which you believe should be drawn, and the

law as given in instructions of the Court.

After counsel have argued the matter, the Court will

give you further and final instructions concerning the

law relating to the punishment. It is your duty and

yours alone to decide upon the punishment to be imposed

upon the defendant and to render such verdict under the

law and the evidence.

The state’s attorney must open the argument. Counsel

for the defendant may then make his argument. No fur-

ther argument is permitted by either side,

INSTRUCTION NO. 35

In determining the punishment to be assessed under

Count I against the defendant for the murder of Pamela

Sue Wright, you must first unanimously determine:

1, Whether the defendant has a substantial history of

serious assaultive convictions.

2. Whether the murder of Pamela Sue Wright in-

volved depravity of mind and that as a result thereof it

was outrageously or wantonly vile or horrible or in-

human.

You are further instructed that the burden rests upon

the state to prove beyond a reasonable doubt at least one

of the foregoing circumstances, and that it is an ag-

gravating circumstance. The defendant is not required

to prove or disprove anything. ~

Therefore, if you do not unanimously find from the

evidence beyond a reasonable doubt that at least one of

the foregoing circumstances exists and that it is an

aggravating circumstance, you must return a verdict fix-

ing the punishment of the defendant at imprisonment

for life by the Division of Corrections without eligibility

for probation or parole until he has served a minimum

of fifty years of his sentence.

INSTRUCTION NO. 36

If you find and believe from the evidence beyond a

reasonable doubt that one or more of the circumstances

submitted in Instruction No. 35 exists and that at least

one of them is an aggravating circumstance, it will then

become your duty to decide whether a sufficient aggravat-

ing circumstance or circumstances exist to warrant the

imposition of death as punishment of defendant. In de-

ciding that question you may consider all of the evidence

relating to the murder of Pamela Sue Wright.

You may also consider any of the aggravating circum-

stances referred to in Instruction No. 35 which you found

beyond a reasonable doubt.

If you do not unanimously find from the evidence be-

yond a reasonable doubt that a sufficient aggravating cir-

cumstance or circumstances exist to warrant the imposi-

tion of death as defendant’s punishment, you must return

a verdict fixing his punishment at imprisonment for life

by the Division of Corrections without eligibility for pro-

bation or parole until he has served a minimum of fifty

years of his sentence.

INSTRUCTION NO. 37

If you decide that a sufficient aggravating circumstance

or circumstances exist to warrant the imposition of

death, as submitted in Instruction No. 36, it will then

become your duty to determine whether a sufficient miti-

gating circumstance or circumstances exist which out-

weigo such aggravating circumstance or circumstances

so foiind to exist. In deciding that question you may con-

sider all of the evidence relating to the murder of Pam-

ela Sue Wright.

You may also consider:

1. Whether the defendant has no significant history

of prior criminal activity.

2. Whether the murder of Pamela Sue Wright was

committed while the defendant was under the influence

of extreme mental or emotional disturbance.

You may also consider any circumstances which you

find from the evidence in extenuation or mitigation of

punishment.

If you unanimously decide that a sufficient mitigating

circumstance or circumstances exist which outweigh the

aggravating circumstance or circumstances found by you

to exist, then you must return a verdict fixing defendant’s

punishment at imprisonment for life by the Division of

Corrections without eligibility for probation or parole

until he has served a minimum of fifty years of his

sentence,

‘

INSTRUCTION NO. 38

Even if you decide that a sufficient mitigating cirecum-

stance or circumstances do not exist which outweigh the

aggravating circumstance or circumstances found to ex-

ist, you are not compelled fix death as the punishment.

Whether that is to be your final decision rests with you.

INSTRUCTION NO. 39

You will be provided with forms of verdict for your

convenience. You cannot return any verdict as the ver-

dict of the jury unless all twelve jurors concur in and

agree to it, but it should be signed by your foreman

alone.

If you decide, after considering all of the evidence

and instructions of law given to you, that the defendant

must be put to death for the murder of Pamela Sue

Wright, your foreman must write into your verdict all

of the aggravating circumstances submitted in Instruc-

tion No. 35 which you found beyond a reasonable doubt.

If, after considering all of the evidence and instruc-

tions of law, you decide that the defendant must be pun-

ished for the murder of Pamela Sue Wright by imprison-

ment for life by the Division of Corrections without

eligibility for probation or parole until he has served a

minimum of fifty years of his sentence, your foreman

will sign the verdict form so fixing the punishment.

When you have concluded your deliberations you will

complete the applicable form to which all twelve jurors

agree and return it with all unused forms and the writ-

ten instructions of the court.

If, after due deliberation, you are unable to agree

upon the punishment, your foreman will sign the verdict

form so stating. In such case, the court will fix the de-

fendant’s punishment at imprisonment for life by the

Division of Corrections without eligibility for probation

or parole until he has served a minimum of fifty years

of his sentence. You will bear in mind, however, that

under the law it is your primary duty and responsibility

to fix the punishment.

VERDICT FORM—Filed October 12, 1978

As to Count I, we, the jury, having found the defend-

ant guilty of the capital murder of Pamela Sue Wright,

fix the punishment at imprisonment for life.by the Divi-

sion of Corrections without eligibility for probation or

parole until the defendant has served a minimum of

fifty years of his sentence.

/s/ [Illegible]

Foreman

IN THE CIRCUIT COURT OF THE

COUNTY OF JACKSON

STATE OF MISSOURI

Cause No.

Division No. 11

STATE OF MISSOURI, PLAINTIFF

v8.

ROBERT E. BULLINGTON, DEFENDANT

MOTION FOR JUDGMENT OF ACQUITTAL OR IN

THE ALTERNATIVE FOR A NEW TRIAL

Filed November 20, 1978

COMES NOW the defendant, Robert E. Bullington, by

and through his attorney, and moves the Court for a

judgment of acquittal, or in the alternative for a new

trial on the grounds that:

1. The Court erred in allowing venireman #9 Esto

Jackson, #29 Richard W. Livingstone, #6 David Camp-

bell, #18 Rebecca A. Borelli, #41 Edward F. Thomp-

son, #59 Vincent R. Como, and other from the panel,

to be stricken for cause by the prosecutor, said veniremen

having given no indication that he could not follow the

law the Court would give in the instructions. Said Ven-

iremen were stricken only because they indicated they

could not or would be very reluctant to impose the death

penalty in subject cause. The allowance of these strikes

for cause denied defendant his right to the presence on

the panel of legally qualified veniremen, deprived him

of his right to an impartial jury panel, deprived him of

his rights to due process and equal projection of the law

and a jury of his peers guaranteed under the V, VI and

XIV Amendments to the U.S. Constitution and therefore

denied him his right to a fair trial.

2. The Court erred in allowing the prosecuting attor-

ney to propound questions to the veniremen about their

relative abilities to impose the death penalty in subject

cause for the reason that at the time of asking said

questions the Prosecuting Attorney of St. Louis County

knew that he would not actively seek or recommend to

the jury that the death penalty be imposed and was ris-

ing said inquiry to deplete the panel and to strike those

veniremen who would strongly indicate an adversion to

the imposition of the death penalty. Said strikes un-

justly deprived the defendant of his right to an impartial

panel of legally qualified veniremen representing a true

cross-section of the community and a jury of his peers.

The allowance of said question and the subsequent im-

proper strikes discussed in Point F, deprived defendant

of his right to an impartial jury panel, his rights to due

process and equal protection of the law, his rights to a

jury of his peers, his rights as guaranteed to him by

the V, VI and XIV Amendments to the U.S. Constitu-

tion, and, therefore, his right to a fair trial.

3. The trial Court erred in denying the defendant’s

pre-trial motion to dismiss Count I of the indictment

for the reasons as set out more specifically in said Mo-

tion to Dismiss and for the reasons that Sections,

565.001, 565.003, 565.006, 565.008, and 565.016 RSMo.

1977 are unconstitutional in that they violate the Eighth

and Fourteenth Amendments of the U.S. Constitution

and Article IV, Section 21 of the Constitution of the

State of Missouri.

4. The trial court erred in denying the defendant’s

pre-trial motion to sever counts because under 559.005,

559.240, 559.225, 560.040/560.095 and 564.610 V.A.M.S.

the offenses alleged could not have been joined and Mis-

souri Supreme Court Rule 24.04, which purports to allow

joinder in the same indictment of offenses based on the

Same act or transactions or which constitutes part of a

common scheme or plan, effects a change in the sub-

stenitive rights of the defendant by Supreme Court Rule,

an unconstitutional encroachment by the Judiciary

Bench into the domain of the Legislative Branch under

Article II, Section I of the Missouri Constitution.

5. The trial Court erred in denying the defendants

pre-trial motion to sever counts because said refusal

forced the jury into a situation wherein they could con-

sider punishment of defendant on only one of six counts

and allowed them unnecessary freedom to speculate as

to why they were not allowed to assess punishment on

Counts II-VI and would therefore deprive defendant of

his right to a fair and impartial trial.

6. The trial court erred in denying the defendants

pre-trial motion to sever Counts for the reason that there

was no evidence supporting any argument that Count I

was part of a common scheme or plan or that the offense

charged in Count I was based on the same act or trans-

action as charged in the other Counts.

7. The trial court erred in denying the defendant’s

pre-trial motion to dismiss Count III of the Substitute

information In Lieu of Indictment for the reason that

the charging of said offense, armed criminal action, in

conjunction with the charges set out in Counts V and VI

of the Substitute Information In Lieu of Indictment is

specifically prohibited under Section 559.225 (4)

V.A.M.S.

8. The trial court erred in denying the defendant’s

pre-trial motion to dismiss Count III of the Substitute

Information in Lieu of Indictment because charging the

defendant under both Count III and Counts V and VI

amounts to placing the defendant twice in jeopardy in

violation of the Fifth and Fourteenth Amendments to the

Constitution of the United States and Article I, Section

19 of the Missouri Constitution.

9. The trial court erred in denying the defendant’s

pre-trial motion to dismiss Count III of the Substitute

Information in Lieu of Indictment, because Section

559.225 (1) V.A.M.S. provides for sentences specifically

excluding parole, probation, conditioned release, or sus-

pended imposition or execution of sentence for a period

of three years, which is an unconstitutional encroach-

ment upon both the Executive and Judicial Branches of

the State Government by the Legislative Branch under

Article II, Section 1 of the Missouri Constitution.

10. The trial court erred by refusing to allow defense

counsel to individually voir dire the members of the jury

panel, as to hobbies or special interests, memberships in

various organizations, publications they may subscribe

to or read on a regular basis, newspapers they read or

subscribe to on a regular basis, religious affiliation and

the court further erred by admonishing defense counsel

not to ask such questions in that:

A. The trial court’s admonition reflected to the panel

of veniremen a position of advocacy rather than objec-

tivity.

B. Said questions were not objected to by the prose-

cuting attorney and no grounds were given for the

Court’s refusal to allow said questions.

C. By not affording defense counsel the opportunity

to ask said questions the Court seriously hampered the

defendant in making challenges for cause and intelligent

and knowing peremptory challenges.

11. The trial court erred in denying the defendant’s

motion to suppress the in-court identification of defend-

ant by Mary Wright and John Wright because such iden-

tification was fatally infected by the inherently sugges-

tive out-of-court identification, conducive to mistake in

that:

A. Before viewing the line-up Mary Wright and John

Wright had seen the defendant’s photograph on several

occasions and on each occasion the viewing of the photo-

graph directly related to the subject case and their iden-

tification.

B. Immediately before viewing the line-up Mary

Wright and John Wright viewed the defendant on a local

television news cast wherein it was indicated that the

defendant had that day been returned from California

and that prior to viewing said line-up Mary Wright and

John Wright were informed by Detective Chasteen and

Seymour that a suspect had been brought in from Cali-

fornia and would be in the line-up they were to view;

C. At the lineup which each of them observed de-

fendant was the only one looking to be in his late 30’s

and the others appeared considerably younger or consid-

erably older;

D. John Wright and Mary Wright were shown a

photograph of the defendant the night before they were

to testify in court by the Prosecuting attorney and they

had since the line-up and prior to the trial seen numer-

ous photographs of the defendant on newscasts and in

the newspaper which by their coverage directly linked

defendant to the crimes herein charged;

E. Both Mary Wright and John Wright testified they

only saw the perpetrator for a period of 10-15 seconds

and that his face was covered with make-up ;

All in violation of the Fourth, Fifth, Sixth, and Four-

teenth Amendments to the United States Constitution ;

and Article I, Sections 10, 15, and 18(a) of the Missouri

Constitution.

12. The trial court erred in that the bailiffs and in-

dividuals who were responsible for the control summon-

ing and accompaniment of the sequestered jury at all

time when they were not in the court and present before

the defendant, were not administered and did not take or

swear to the oath in violation of Section 494.070

V.A.M.S.

13. The trial court erred in overruling the defend-

ant’s motion to suppress evidence and in allowing items

seized from the residence and automobile of the de-

fendant to be introduced against him, said items being

seized as the result of an unlawful search, in violation

of defendant’s rights under Article I, Sections 10, 15

and 18(a) of the Misouri Constitution, and the Fourth,

Fifth, Sixth and Fourteenth Amendments to the United

States Constitution.

14, The trial court erred for not dismissiong Count I

of the Substitute Information in Lieu of Indictment for

the reason that said statute constitutes an ex-post-facto

law in that its validity depends on a future event

(565.016 V.A.M.S.) in violation of the Constitution of

the United States and the Constitution of the State of

Missouri.

15. The trial court erred in not submitting to the jury

M.A.I.-Cr2.50, the character instruction, for the reason

that there was evidence of defendant’s good character

and said omission by the Court was in violation of Mis-

souri Supreme Court Rule 26.02 (6).

16. The Court erred in admitting evidence of De-

fendant’s flight from St. Louis, Missouri and the Killark

Electrical Co. to Guyman, Oklahoma, and California in

that at said time there was an active warrant pending

for the arrest of the defendant on the charge of child

molestation and, therefore ;

Said flight could have resulted from the active war-

rant for defendant’s arrest. Said testimony should not

have been admitted into evidence because:

A. The defendant could not rebut the presumption

that said flight resulted from a fear of being apprehended

for subject cause as that would be evidence of other

crimes.

B. It is ambiguous and mere speculation to presume

or assume that the reason defendant fled was because

of subject charge and not the active warrant for his

arrest.

C. The admission of said evidence allowed the jury

to speculate as to the reason for defendant’s flight from

St. Louis.

D. Said evidence was irrelevant, immaterial and be-

cause of its inherent ambiguity of a highly prejudicial

nature while being of little probative value.

17. The trial court erred by telling the jury panel

during the voir dire examination that they would sen-

tence the defendant for the reason that said comment

was an improper statement of the law in that defendant

was charged under the Habitual Criminal Act and the

jury was not allowed to sentence the defendant on

counts II-VI. This comment allowed and forced the jury

to speculate as to why they were not allowed to sentence

the defendant on Counts II-VI and in essence informed

the jury that defendant had been convicted of other

crimes.

18. The trial court erred by informing the jury panel

that defendant’s bond was set at $150,000 in that such

a comment implied that defendant was a dangerous in-

dividual and a bond as high as that was required to

insure his incarceration during the pendency of subject

cause and allowed the jury panel to speculate as to the

quality and quantity of the evidence before the Court

which set the bond inferring that said evidence must be

substantial and therefore required such a high bond

sausing the jury panel to be prejudiced against the De

fendant and denying his right to a fair and impartial

trial before an impartial jury.

19. The trial court erred in allowing the State to in-

troduce into evidence State’s Exhibit #91, a model 1200

Winchester Rifle, over defendant’s objection for the

reason that John Wright and Mary Wright could only

testify that said exhibit was similar to the gun used by

the suspect, there was no proper foundation laid for the

admission of said Exhibit into evidence, and said ad-

mission was highly prejudicial to defendant in that

Bernard Gonek later testifies that said Exhibit was iden-

tical to the weapon purchased by the defendant from

Mr. Gronek.

20. The trial court erred in allowing Mary Wright

to testify in direct examination that she had viewed

other line-ups and photographic line-ups in which de

fendant or his photograph was not included for the reason

that said testimony was irrelevant, immaterial and was

an attempt by the prosecuting attorney to rehabilitate

witnesses who had not been impeached.

21. The trial court erred in allowing John Wright to

testify in direct examination that he had viewed other

line-ups and photographic line-ups in which defendant

or his photograph was not included for the reason that

said testimony was irrelevant, immaterial and was an

attempt by the prosecuting attorney to rehabilitate wit-

nesses who had not been impeached.

22. The trial court erred in admitting into evidence

over defendant’s objections testimony from Mary Wright

that when she heard the defendant speak at the line-up

her knees buckled and she almost fainted for the reason

that said testimony was irrelevant, immaterial and self-

serving.

23. The trial court erred in admitting into evidence

over defendant’s objection testimony from Al Chasteen

that Mary Wright fainted during the line-up defendant

was in for the reason that said testimony was inadmis-

sible as hearsay conduct and denied the defendant his

right to confront and cross-examine Witnesses guaran-

teed him under the United States Constitution.

24. The court erred in admitting into evidence over

defendant’s objection State’s Exhibits 30, 31, 32, 33, 34,

35, 110, 111, and 112, 105, 108 and 116 which were pic-

ture’s of the deceased’s body at the scene of recovery and

the morgue for the following reasons:

A. There was not a sufficient foundation laid for

their admission in that there were not properly identi-

fied as to what they purported to represent, nor was

there any testimony that they fairly and accurately de-

picted anything that existed at or near the time of the

alleged killing. For this reason the pictures were irrele-

vant and immaterial and yet highly prejudicial to de-

fendant, since clearly it was the intent of the prosecutor

to allow the jury to speculate that they represented con-

ditions at the time of the killing.

B. There was not a sufficient foundation laid for their

admission in that they did not fairly and accurately re-

flect the recovery scene of the body in that the body had

been moved prior to the photographs having been taken.

For this reason those photographs were irrelevant and

immaterial and yet highly prejudicial to the defendant,

since clearly the intent of the prosecutor was to allow

the jury to speculate that they represented conditions at

the time the body was first discovered.

C. The pictures were of such a gory and gruesome

nature that they tended to inflame the passions of the

jurors and therefore any probative value they had was

far outweighed by their prejudicial effects toward de-

fendant.

25. The trial court erred in admitting over defend-

ant’s objections testimony from Connie Matzek relating

to certain statements allegedly made by the defendant to

her for the reasons that:

A. At the time of said statements there was an active

warrant pending charging the defendant with child

molestation.

B. Said child molestation warrant charged defendant

with having molested his own daughter.

C. Said statements were inherently ambiguous as to

the subject matter they referred to and could have re-

ferred to the charge of child molestation.

D. That to explain said statements it would be neces-

sary to introduce evidence of other crimes.

KE. That the defendant specifically requested Al Chas-

teen to place him in isolation at the St. Louis County

Jail Facility for other reasons that he feared for his life

as a result of the publicity and nature of the child

molestation charge.

F, That defendant was arrested in California and ex-

tradited from California for the charge of child moles-

tation.

G. That said testimony was irrelevant, and immate-

rial and constituted hearsay and the only purpose of in-

troducing same must have been to influencelithe jury to

believe that the defendant’s statement could only refer

to the crimes charged, but such belief would have had

to be based on speculation and guesswork.

H. That said testimony was highly prejudicial to de-

fendant but because of its ambiguous nature had no real

probative value.

26. The court erred in overruling defendant’s motion

for judgment of acquittal on all six counts at the close

of the state’s case, because there was insufficient evidence

to sustain a verdict of guilty.

27. The Court erred in overruling defendant’s motion

for judgment of acquittal on all six counts at the close

of all the evidence because there was insufficient evidence

to sustain a verdict of guilty.

28. The court erred in submitting Instruct #10 the

State’s verdict director on the charge of Capital Murder

for the reasons that there was no evidence to support

the giving of said instruction.

29. The Court erred in submitting Instruction #12,

the state’s verdict director on the charge of Murder First

Degree for the reasons that there was no evidence to

Support the giving of said instruction.

30. The Court erred in submitting Instruction #14

the state’s verdict director on the charge of Murder Sec-

ond Degree for the reasons that there was no evidence

to support the giving of said instruction.

31. The Court erred in submitting Instruction #16

the state’s verdict director on the charge of Manslaughter

for the reasons that there was no evidence to support the

giving of said instruction. ,

32. The trial court erred by allowing the jury to take

all the exhibits to the jury room for deliberations except

States Exhibit #91 before they requested to do so for

the reason that the jury does not have an absolute right

to take said exhibits to the jury room and it would allow

the jury the opportunity to conduct their own experi-

ments and tests with the various exhibits al] of which

would lead the jury to guesswork and speculation as to

matters outside the scope of the evidence. The defendant

was further prejudiced by such action in that he did

not hav@iin opportunity to review the juror’s requests

as the it were sought and to advise the court of his

individual objeetions to the jury taking said exhibits for

use in their deliveration.

33. The trial court erred in not sustaining comments

from the prosecuting attorney during voir dire and dur-

ing the course of the trial that he had reviewed the evi-

dence and after having done so he ordered a warrant be

issued for the reason that said statement would neces-

sarily be leading to believe that there must exist some

evidence known to the prosecuting attorney that definitely

links the defendant to the crime charged and would allow

the jury to speculate as prosecuting attorney’s personal

opinion as to the relative merit of the case, and the

province of jury to be the decider of the facts was in-

vaded through an impermissible inference of defendant’s

guilt.

34. The Court erred in admitting into evidence State’s

Exhibits 160, 171, 172, 164, 162, 173 and 174, hair

samples taken from various individuals for the reason

that the state laid no proper foundation to show an ap-

propriate chain of custody.

35. The court erred in admitting into evidence over

defendant’s objections testimony from Joseph Bono that

the hairs referred to in Point 34 did not match a hair

seized from defendant’s car for the following reasons:

A. The State did not lay a proper foundation to show

an appropriate chain of custody for said hair.

B. There was no showing that said hair had not been

tampered with.

C. The State did not establish that said hair was

taken in such a manner to insure a proper sampling of

the individual’s hair. That said omissions rendered

the experiments conducted on the hairs as mere specula-

tion and guesswork and further that those hair samples

taken were not done so in accordance with the best es-

tablished procedure for obtaining samples for comparative

testing purposes. The admission of such comparison re-

Sults could only lead the jury to speculate that the hair

found and seized frora the suspect’s automobile belonged

to the victim.

36. The trial court erred not allowing the defendant

to speak to the jury for purposes of comparing his voice

to the voice of Al Chasteen for the reason that there had

been repeated testimony from Mary Jane Wright and

John Wright concerning the comparison of the defendant’s

voice with that of Chasteen’s and Mary Jane Wright had

in fact identified the defendant by his voice alone.

Said testimony would have been material and relevant

and was offered for demonstrative purposes only. The

court by refusing the defendant the opportunity for such

a comparison unduly restricted the defendant from show-

ing to the jury the distinct and substantial differences

in the timbre and tone of his voice as compared to witness

Chasteen’s voice.

37. The jury’s verdict was atainst the weight of the

evidence.

38. The trial court erred in not instructing the jury on

assault with intent to kill with malice, assault with in-

tent to kill without malice, assault with intent to do Great

Bodily Harm, and common assault as to the Count I thus

for the reasons that said instructions were supported by

the evidence and said refusal inalterably tainted the jury’s

verdict as to Count I because they were not properly in-

structed as to all of the possibilities in regard to a verdict

of assault.

39. The trial court erred in submitting to the jury in-

struction no. 12 which constituted the court’s explanation

of the crime of felony-murder in the first degree on the

grounds that such instruction incorrectly interpreted

the laws of the State of Missouri as related to the facts

of this specific case. The instruction hypothesized that

the jury should find the defendant guilty if the defendant

caused the death of Pamela Sue Wright in an effort to

promote escape or to prevent detection after kidnapping

Pamela Sue Wright. Such instruction was erroneous,

Specifically, there was no evidence that the drowning of

Pamela Sue Wright occurred in an attempt by defendant

to promote escape or to prevent detection and conse-

quently Instruction No. 12 did not relate to the facts of

this specific case.

40. The trial court erred in submitting Instruction No.

20 to the jury in that it was impermissibly vague and in-

vited the jury to convict the defendant based on specula-

tion and conjecture rather than legal principle. The in-

struction indicated that the jurors should convict the de-

fendant if they found that he had committed the offense

by the use of a dangerous and deadly weapon and did

not explain to the jury what was meant by the phrase

“by use of”.

41. The Court erred in submitting Instruction #10,

12, 14, and 16, the state’s verdict directions on Count I,

for the following reasons:

a. There was no evidence to support the giving of said

instruction.

b. The instructions varied from what the defendant

was charged with in the substitute information in lieu

of indictment, in that the defendant was charged with

having caused the death of Pamela Sue Wright on Sep-

tember 3, 1977, whereas the instruction allowed the jury

to find him guilty if they believed he caused the death

of Pamela Sue Wright at any time between 9/3/77 and

9/11/77. Said variance denied defendant his right to due

process of law by lessening the proof required for con-

viction without giving him the opportunity to defend

against the lesser requirement. Said instruction further

violated his rights to due process under the Fourteenth

Amendment of the U.S. Constitution to notice of charges

against him.

42. The trial court erred in allowing Angela Lotz to

testify over defendant’s objections concerning an inci-

dent involving a dark-haired man stopping and looking

at Ms. Lotz and her friend, Terry Moore. Ms. Lotz was

allowed to testify over defendant’s objection that Ms.

Moore at one time lived in Pamela Sue Wright’s house

on 136 Martigney. Said statements were irrelevant and

immaterial in that the prosecutor never linked the dark-

haired man with the defendant nor was he ever able to

establish with any evidence that the defendant knew or

could have known where Ms. Lotz or Ms. Moore used to

live on Martigney Drive. The only purpose of intro-

ducing said evidence must have been to influence the

jury to believe that defendant must have been the dark-

haired man and must have been searching for Angela

Lotz on Martigney, but such belief would have had to be

based on speculation and guesswork to defendant's prej-

udice.

44. The trial court erred in admitting into evidence

over defendant’s objection, state’s Exhibit #143 a check

purportedly signed by the defendant for the purchase of

a shotgun and State’s Exhibit #166 for the following

reasons:

a. These exhibits were irrelevant and immaterial there

being no showing sufficient to connect said exhibits to the

defendant.

b. Their admission could only have been for the pur-

pose of allowing the jury to speculate that there were in

fact used, signed or in anyway connected with the de-

fendant.

c. There was not a sufficient foundation laid for their

admission.

d. Their admission and the court’s subsequent release

of these items to the jury allowed them to conduct their

own experiments and comparisons of the signatures to

determine authenticity whereas such conclusions are clear-

ly only the subject of the admissible or carefully secret-

ing by a highly trained expert.

45. The trial court erred by modifying MA1-CR2.70

and submitting it as Instruction #9 for the following

reasons,

a. The modification of said instruction is not in ac-

cordance with any modification or alteration approved

by the Supreme Court of Missouri.

b. The modification of said Instruction significantly

altered the meaning and construction of said Instruction

when read alone or in conjunction with the court’s other

instruction.

ce. Said instruction as modified is not a proper state-

ment of the law.

d. That the jury could interpret Instruction #9 to

be a mandate to the jury that the defendant must be

found guilty as to Instruction #20.

e. That said instruction is confusing and misleading

as to how to apply Instruction #9 to the other verdict-

director instructions.

f. That the instruction is a misstatement of the law

in its face in that it directs the jury that they cannot

find the defendant guilty or not guilty in Instruction

#20, the verdict director for Armed Criminal Action;

All to the detriment and prejudice of the defendant.

45. The Court erred in submitting Instructions #10,

12, 14, 16, 18, 20, 22, 24, and 26, the verdict directors

for the following reasons”

a. Not a proper statement of the law.

b. They were modified as to their form in a manner

not suggested or approved by the Supreme Court of the

State of Missouri.

ce. Said modification was misleading as to each indi-

vidual instruction and the instructions taken together

as a whole in that a juror would, after reading said

instruction, tend to believe that you could find the de-

fendant guilty only, not guilty, or guilty of all the

charges.

d. Said instructions were misleading in that they

would tend to indicate to the jury if he were not guilty

under the instruction he must then be guilty of another

crime, charged or not.

e. That said instructions as modified tended to mis-

lead and confuse the jury all to the detriment and prej-

udice of the defendant.

46. Prior to trial, the court erred in overruling de-

fendant’s motion to quash the jury panel insofar as the

Jackson County procedure for the selection of petit jurors

violates defendant’s rights to a jury drawn from a

reasonably representative cross section of society in viola-

tion of the Sixth and Fourteenth amendments to the Unit-

ed States Constitution. Said procedure in Jackson County

allows women an automatic exemption which results in

disproportionate underrepresentation of women on the

jury panel: such a system is in violation of Taylor vs.

Louisiana, 419 U.S. 522 (1975).

WHEREFORE, the defendant respectfully requests

this Court to enter judgment of acquittal, or in the

alternative to grant defendant a new trial.

Respectfully submitted,

/s/ Richard H. Sindel

RICHARD H. SINDEL

Attorney-at-Law

34 North Brentwood Blvd.

Suite 14

Clayton, Missouri 63105

(814) 721-6040

IN THE CIRCUIT COURT

OF JACKSON COUNTY, MISSOURI

No. CR78-0768

Docket L

Division 11

STATE OF MISSOURI, PLAINTIFF

v8.

ROBERT EF. BULLINGTON, DEFENDANT

Ct. 1—Capital Murder

Ct. 2—Kidnapping

Ct. 3—Armed Criminal Action

Ct. 4—Burglary I

Ct. 5—Flourishing Dangerous & Déadly Weapon

Ct. 6—Flourishing Dangerous & Deadly Weapon

ORDER

APPEARANCES

1. State by Ass’t. Pros. Atty. James Cook

2. Defendant in Person and by Atty. Richard Sindel

The ruling of the Supreme Court of the United States

in Duren v. State of Missouri, US. .

S.Ct. : L.Ed.2d ——, and its progeny, being

dispositive makes it unnecessary to rule on the more

crucial and meritorious issues of whether the State made

a submissible case of any degree of homicide, and the

other issues raised in defendant’s after-trial motions,

IT IS, THEREFORE, ORDERED, ADJUDGED AND

DECREED that defendant’s Motion for Judgment of

Acquittal be overruled and defendant’s Motion for a New

Trial be sustained on the grounds stated in paragraph

46 of the new trial motion.

IT IS FURTHER ORDERED that the cause is trans-

ferred to Criminal Docket “A” for reassignment.

February 13, 1979

Date /s/ [Illegible]

Judge

IN THE CIRCUIT COURT

OF JACKSON COUNTY, MISSOURI

No. CR78-0768

Division 11

STATE OF MISSOURI, PLAINTIFF

v8.

ROBERT E. BULLINGTON, DEFENDANT

Ct. 1—Capital Murder

Ct. 2—Kidnapping

Ct. 3—Armed Criminal Action

Ct. 4—Burglary I

Ct. 5—Flourishing Dangerous & Deadly Weapon

Ct. 6—Flourishing Dangerous & Deadly Weapon

NOTICE OF EVIDENCE IN AGGRAVATION

Pursuant to Section 565.006 (2) V.A.M.S., the State,

by the below signed Assistant Prosecuting Attorney, here-

by makes notice of its intention to seek the death penalty

in the above styled cause and to present to the jury in

any hearing upon the issue of punishment evidence of

the following aggravating circumstances:

1. The offense was committed by a person who has a

substantial history of serious assaultive criminal convic-

tions.

2. The offense was outrageously or wantonly vile,

horrible, or inhuman in that it involved torture or depra-

vity of mind.

The State incorporates by reference all previously en-

dorsed witnesses and reports presented to defense counsel

in this cause. The testimony of these witnesses concern-

ing the circumstances of the murder herein and the evi-

dence of prior convictions previously disclosed to defense

counsel will be offered to prove the aggravating circum-

stances set out above.

Respectfully submitted,

/s/ James J. Cook

JAMES J. COOK

Assistant Prosecuting Attorney

7900 Carondelet

Clayton, Missouri 63105

314-889-2600

Certificate of Service (omitted in printing)

STATE OF MISSOURI i+?)

) ss

CouNTY oF St. Louis )

IN THE CIRCUIT COURT

OF THE COUNTY OF JACKSON, MISSOURI

Cause #CR78-0768

Division #11

STATE OF MISSOURI, PLAINTIFF

v8.

ROBERT E. BULLINGTON, DEFENDANT

MOTION TO STRIKE PLAINTIFF'S NOTICE

OF EVIDENCE IN AGGRAVATION AND TO

EXCLUDE FROM TRIAL EVIDENCE IN

AGGRAVATION OF PUNISHMENT

COMES NOW defendant and for his motion states:

1. That on or about October 12, 1978 defendant was

found guilty by a jury of a capital murder pursuant to

Section 565.001 V.A.M.S.

2. That following the return of the guilty verdict by

the jury, a hearing was conducted pursuant to Section

565.006 (2) V.A.M.S., to determine whether the required

aggravating circumstances existed and whether the death

penalty should be imposed pursuant to Section 565.008

V.A.M.S.

3. That after evidence was heard, the cause was sub-

mitted to the jury and they found that defendant, under

the evidence, should be sentenced to life imprisonment,

and that the requisite “aggravating circumstances” had

not been proven beyond a reasonable doubt.

4. That on or about January 2, 1979, defendant filed

a Motion For New Trial, which was granted on or about

February 13, 1979, in light of Duren v. Missouri, No.

77-6067 (January 9, 1979).

5. That the plaintiff’s Notice of Evidence in Aggrava-

tion, if not stricken, places defendant twice in Jeopardy

in violation of the Fifth and Fourteenth Amendments to

the Constitution of the United States and Article 1, Sec-

tion 19 of the Constitution of Missouri for the reasons

that the determination of punishment has been made,

and was not affected by the trial courts granting de-

fendant’s Motion For New Trial; that said determination

of punishment constitutes a conviction of the offense of

capital murder punishable by life imprisonment which is

a lesser included offense of capital murder punishable

by death; and that conviction of the offense of capital

murder punishable by life imprisonment constitutes an

acquittal of the offense of capital murder punishable by

death.

6. That the plaintiff’s Notice of Evidence in Aggrava-

tion and any presentment of said evidence is subject to

the Doctrine of Collateral Estoppel in that the issue of

punishment and aggravating circumstances considered

in imposing said punishment has been previously litigated

and imposed and remains undisturbed by the trial court’s

granting defendant’s Motion For New Trial. Any ad-

mission of said evidence would lie in violation of the

Fifth and Fourteenth Amendments to the Constitution

of the United States and Article 1, Section 19 of the

Constitution of Missouri.

7. Defendant further states that the plaintiff’s Notice

of Evidence in Aggravation if permitted to stand and the

presentment of said evidence at defendant’s new trial

would: Have a chilling effect on defendant’s right to

appeal in that a determination of punishment has been

made; subject defendant to relitigation of this identical

issue and therefore effectively hamper and chill his rights

to seek that relief guaranteed him by law; deny de-

fendant his right to effective assistance of counsel; deny

defendant due process of law and equal protection of the

law; subject defendant to cruel and unusual punishment,

all in violation of the Fifth, Sixth, Eighth and Four-

teenth Amendments to the Constitution of the United

States and Article 1, Sections 10, 18(a), 19, and 21 of

the Constitution of Missouri.

8. The Prosecutor has not advised defendant or the

Court by said Notice of Evidence in Aggravation of any

evidence or grounds not available or presented at the

first trial.

WHEREFORE, defendant prays that plaintiff’s Notice

of Evidence in Aggravation be stricken, and that all

evidence in aggravation of punishment be excluded from

trial.

Respectfully submitted,

/s/ Richard H. Sindel

RICHARD H. SINDEL

Attorney for Defendant

Sindel, Sindel & Sindel

34 N. Brentwood, Suite 14

Clayton, Missouri 63105

314/721-6040

Certificate of Service (omitted in printing)

IN THE CIRCUIT COURT

OF THE COUNTY OF JACKSON

STATE OF MISSOURI

No.

STATE OF MISSOURI, EX REL,

GEORGE R. WESTFALL, RELATOR

vs.

THE HONORABLE DONALD L. MASON,

Judge, Sixteenth Judicial Circuit

Jackson County, Missouri

DIVISION 11, RESPONDENT

PETITION FOR WRIT OF MANDAMUS

(In The Alternative To A Petition For

Writ of Prohibition)

COUNT I

(In Alternative To Count II)

Relator respectfully states:

1. George R. Westfall is the duly elected, qualified

and acting Prosecuting Attorney for the County of St.

Louis, State of Missouri.

2. Respondent herein is a Judge of the Sixteenth Judi-

cial Circuit, Jackson County, Missouri, Division 11.

3. On the 9th day of December, 1977, an indictment

was filed in the Circuit Court of St. Louis County charg-

ing the defendant Robert Bullington with Count I—Cap-

ital Murder, Count II—Kidnapping, Count I1J—Armed

Criminal Action, Count IV—Burglary First Degree,

Count V—Flourishing A Dangerous And Deadly Weapon

‘and Count VI—Flourishing A Dangerous And Deadly

_ Weapon.

4. On the 2nd day of May, 1978, a change of venue

was granted and the case was transferred to the Six-

teenth Judicial Circuit, Jackson County, Missouri.

5. On the 7th day of July, 1978, the State filed a

Notice of Evidence in Aggravation, thereby indicating

to the Court and the Defendant the State’s intention to

seek the death penalty if a conviction of Capital Murder

resulted.

6. On the 2nd day of October, 1978, the trial in the

case of State of Missouri v. Robert Bullington was con-

vened in Division 11 of the Circuit Court of Jackson

County and resulted in a verdict of guilty on all counts

on the 11th day of October, 1978.

7. On the 12th day of October, 1978, the trial was

held to consider punishment following the verdict of

guilty of Capital Murder, and resulted in a finding by

the jury that the defendant be sentenced to serve a term

of imprisonment of life without probation or parole for

at least 50 years.

8. On the 20th day of November, 1978, a motion for

new trial was filed by the defendant.

9. On the 18th day of February, 1979, the Honorable

Judge Donald L. Mason sustained the motion for new

trial on the basis of the decision of the U.S. Supreme

Court in the case of State v. Duren, U.S. Supreme Court

No. 77-6067 (January 9, 1979).

10. Thereafter, the State filed a Notice of Evidence

in Aggravation, thereby indicating to the Court and the

defendant the State’s intention to seek the death penalty

upon the retrial of the case. (See attached Exhibit No.

—)

11. On the 12th day of March, 1979, the defendant

filed a Motion to Strike Plaintiff’s Notice of Evidence in

Aggravation and to Exclude From Trial Evidence in

Aggravation of Punishment. (See attached Exhibit No.

—)

12. On the 26th day of March, 1979, the parties ap-

peared before the Honorable Donald L. Mason and argued

defendant’s motion to strike along with other motions.

12. On May 10, 1979 the Honorable Donald L. Mason

announced his intention to enter an order on May 15,

1979 sustaining defendant’s Motion to Strike the State’s

Notice of Evidence in Aggravation of Punishment, “to

the extent that the State will not be permitted to seek

the death penalty, should the defendant again be found

guilty of Capital Murder.” (See attached Exhibit No.

—)

14. On the 11th day of May, 1979, the Honorable

Judge Donald L. Mason allowed the parties until May 18,

1979 to seek any extraordinary relief before he formally

entered his ruling on the motion.

15. The order of Respondent denying the State the

right to seek the death penalty in this case is an abuse

of his discretion and would be beyond his jurisdiction

in that:

A. Sections 565.001 and 565.008, R.S.Mo., as enacted

in 1977 provides that the death penalty is one of the

penalties available upon a conviction of Capital Murder.

B. According to previous case law, the possibility of a

more severe sentence on retrial is no violation of de-

fendant’s protection against double jeopardy, does not

offend the due process clause of the Fourteenth Amend-

ment to the United States Constitution, does not place

an impermissible chilling effect on the defendant’s right

to appeal or violate any other rights of the defendant.

16. Relator has no adequate remedy other than an

extraordinary writ for the reason that there is no appeal

or other remedy for the State to pursue under the Sta-

tutes of Missouri when a trial judge prohibits the State

from seeking punishment which it is allowed by the

statutes.

17. Relator states that time is of the essence in this

matter and unless there is a prompt determination the

trial will commence on June 4, 1979, with the State being

unable to seek punishment allowed by the statutes.

WHEREFORE, Relator prays that this Honorable

Court issue its Alternative Writ of Mandamum directed

to Respondent, a Judge of the Sixteenth Circuit, Division

11, Jackson County, Missouri, ordering him to permit the

State of Missouri through the Relator, to ask for and

seek the death penalty if there is a verdict of guilty of

the charge of Capital Murder in the case of State of

Missouri vs. Robert Bullington (Case No. CR78-0768) ,

or, that Respondent appear to show cause, if he has any

reason why he should not do so; that upon full final hear-

ing this Court make said Writ peremptory, and for such

other and further orders as shall seem just and proper.

COUNT II

PETITION FOR WRIT OF PROHIBITION

(In Alternative to Count I)

1. Relator recalls and incorporates by reference para-

graphs 1-17 (including any attached Exhibits) of Count

I of this petition.

2. The order which Respondent has indicated he will

make concerning defendant’s Motion to Strike Plaintiff’s

Notice of evidence in Aggravation and to Exclude From

Trial Evidence in Aggravation of Punishment is an abuse

of his discretion in that:

A. Sections 565.001 and 565.008, R.S.Mo., as enacted

in 1977 provides that the death penalty is one of the

penalties available upon a conviction of Capital Murder.

B. According to previous case law, the possibility of

a4 more severe sentence on retrial is no violation of de-

fendant’s protection against double jeopardy, does not

offend the due process clause of the Fourteenth Amend-

ment to the United States Constitution, does not place

an impermissible chilling effect on the defendant’s right

to appeal or violate any other rights of the defendant.

WHEREFORE, Relator prays this Honorable Court

to issue its preliminary rule in prohibition directed to the

Respondent, as the Judge of Division Eleven of the Six-

teenth Judicial Circuit, Jackson County, Missouri, pro-

hibiting him from sustaining defendant’s Motion to Strike

Plaintiff’s Notice of Evidence in Aggravation and to

Exclude From Trial Evidence in Aggravation of Punish-

ment, or that Respondent appear to show cause, if he has

any, why he should not do so; that upon full final hear-

ing this Court make said writ absolute; and for such

other or further orders shall seem just and proper.

Respectfully submitted,

/s/ George R. Westfall

GEORGE R. WESTFALL

Prosecuting Attorney

St. Louis County, Missouri

By /s/ James J. Cook

JAMES J. COOK

Assistant Prosecuting Attorney

By /s/ John M. Walsh

JOHN M. WALSH

Assistant Prosecuting Attorney

STATE OF MISSOURI +)

) §S

COUNTY OF ST. Louis )

George R. Westfall, being duly sworn upon his oath,

states that he is the Prosecuting Attorney for St. Louis

County, Relator herein, and the facts stated in the fore-

going Petition are true to the best of his information,

knowledge and belief.

/s/ George R. Westfall

GEORGE R. WESTFALL

Prosecuting Attorney

Subscribed and sworn to and before me, a Notary Pub-

lic, in and for the County of St. Louis, State of Missouri,

this 16th day of May, 1979.

/s/ Alice E. Griner

Notary Public

My Commission Expires: June 15, 1979

Certificate of Service (omitted in printing)

MISSOURKCOURT OF APPEALS

WESTERN DISTRICT

No. WD30944

»*

STATE OF MISSOURI, EX REL,

GEORGE R. WESTFALL, RELATOR

v8.

THE HONORABLE DONALD L. MASON,

Judge, Sixteenth Judicial Circuit

Jackson County, Missouri

Division 11, RESPONDENT

TO: THE HONORABLE DONALD L. MASON, Judge,

Sixteenth Judicial Circuit, Jackson County, Mis-

souri, Division 11:

STOP ORDER

WHEREAS, Relator, George R. Westfall, has filed

herein his Petition for Writ of Mandamus in which he

alleges that unless granted the relief prayed for therein

you will exceed your jurisdiction with reference to pro-

ceedings in the matter pending before you styled “State

of Missouri, Plaintiff, vs. Robert E. Bullington, Defend-

ant,” case No. CR78-0768 in your Court, and

WHEREAS, it appearing from the duly verified papers

now on file in this Court that unless Relator is granted

the relief prayed for therein you may exceed your juris-

diction in the premises,

IT IS THEREFORE ORDERED AND ADJUDGED

that you take no further action in this case of any kind

or character until further order of this Court, and that

you are hereby given until Thursday, May 24, 1979,

to file Suggestions in Opposition to Relator’s Petition for

Writ of Mandamus herein.

Dated at Kansas City, Missouri this 17th day of May,

1979.

/8/ Ronald L. Somerville

RONALD L. SOMERVILLE

Presiding Judge—Writ Division

cc: Honorable Donald Mason

Richard Sindel

John Walsh

MISSOURI COURT OF APPEALS

WESTERN DISTRICT

No. WD 30944

STATE OF MISSOURI, EX REL,

GEORGE R. WESTFALL, RELATOR

v8.

THE HONORABLE DONALD L. MASON,

Judge, Sixteenth Judicial Circuit

Jackson County, Missouri

Division 11, RESPONDENT

ORDER

The Court, being now fully advised in the premises,

Denies Relator’s Petition for Writ of Mandamus and

Alternative Petition for Writ of Prohibition in the above

captioned cause, and,

Dissolves the Stop Order heretofore issued herein on

May 17, 1979.

Dated at Kansas City, Missouri, this 30th day of May,

1979.

/s/ Ronald L. Somerville

RONALD L. SOMERVILLE

Presiding Judge—Writ Division

ec: Richard Sindel

John Walsh

Hon. Donald L. Mason

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI, EX REL,

GEORGE R. WESTFALL, RELATOR

v8.

THE HONORABLE DONALD L. MASON,

Judge, Sixteenth Judicial Circuit

Jackson County, Missouri

Division 11, RESPONDENT

MOTION FOR REHEARING

OR IN THE ALTERNATIVE

TO TRANSFER TO THE SUPREME COURT

EN BANC—June 1, 1979

Relator moves the Court for rehearing in the above

cause, or in the alternative, to transfer said cause to the

Supreme Court En Banc on the following grounds:

1. The Court in its opinion on May 30, 1979, inad-

vertently misinterpreted and overlooked the law and facts

of this cause by holding that Relator cannot seek the

death penalty herein for the reasons already mentioned

to Court in Relators petition and suggestion, specifically

the ruling of the United States Supreme Court that a

higher sentence can be imposed upon retrial.

2. The Court by holding that the State cannot seek

the death penalty has failed to follow, and its opinion

and decision is in conflict with the controlling decisions of

Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36

L.Ed.2d 714, and cases sighted therein, which have held

that a more severe sentence can be sought and imposed

upon retrial.

3. Relator respectfully moves the Court in the alterna-

tive to transfer this case to the Supreme Court of Mis-

souri on the following grounds:

A. The question involved in this case is of such gen-

eral interest and importance that the final decision

thereof should be made by the Supreme Court of Missouri.

In support thereof, Relator states:

1. The Capital Murder statute is relatively new to

Missouri and the Supreme Court has not had the oppor-

tunity to determine the effect of the bifurcated trial sys-

tem or the issue of seeking the death penalty upon

retrial.

2. The construction of Missouri’s Capital Murder stat-

ute will effect the populous, lawyers and courts through-

out the state on a frequent basis.

B. The decision of this court is in conflict with Chaffin

v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d

714, and Stroud v. U.S., 251 U.S. 15, 40 S.Ct. 50, 64

L.Ed. 103, and State v. Howell, 543 S.W.2d 836 (Sp.App.

1970), and State v. Johnson, 485 S.W.2d 106, and the

existing law concerning this point should be reexamined

by the Supreme Court.

WHEREFORE, Relator respectfully requests the Court

to grant him a rehearing in this case or to transfer the

cause to the Supreme Court of Missouri.

Respectfully Submitted,

/s/ George R. Westfall

GEORGE R. WESTFALL

Prosecuting Attorney

St. Louis County, MO

by James J. Cook

Assistant Prosecuting Attorney

St. Louis County, Missouri

Certificate of Service (omitted in printing)

IN THE SUPREME COURT OF MISSOURI

STATE’S ORAL ARGUMENT

Mr. Cook: I am James Cook an Assistant Prosecutor

from St. Louis County and in this particular case I repre-

sent George Westfall, the Prosecuting Attorney from

St. Louis County. This is a Writ of Prohibition, Prelimi-

nary Writ issued by this Court on the question of whether

or not the State can seek a death penalty upon a retrial

of the defendant in this case.

For a little bit of background here in December of

1977, the State filed its indictment against the defendant

charging him in 6 counts: Capital Murder, Kidnapping,

Armed Criminal Action, Burglary in the 1st Degree and

2 counts of Flourishing a Dangerous and Deadly Weapon.

I might at this point mention that this was filed before

the enactment of Rule 2404A.

Prior to trial the case was transferred from St. Louis

County to Jackson County on a change of venue. The

State filed with the Court and sent copies to the defendant

of a Notice of Aggravating Circumstances indicating its

intention to seek the death penalty upon the trial of this

case.

At that time, in October of 1978, the case proceeded to

trial in Jackson County, approximately a 10 day trial at

the conclusion of which the defendant was found guilty

of all counts. The next day the second stage of the trial

was begun, the State introduced evidence as to the ag-

gravating circumstance concerning substantial history of

serious assaultive convictions and recalled to the jury the

evidence of the case on its other aggravating circum-

stances being the wantonly vile nature of the offense.

After argument by counsel the State, excuse me, the

jury retired and returned with a decision that the de-

fendant should be sentenced to life imprisonment without

probation or parole for 50 years. But after the defendant

filed his Motion for New Trial and the Court sustained

that Motion based on the decision of the Supreme Court

of the United States in State v. Duren, which of course

had to do with the jury selection process in Jackson

County and a new trial was ordered.

Court: Is that Motion for New Trial in the record?

Mr. Cook: I do not believe it is in the record before

this Court on this petition. I did not file it as an exhibit,

I do not believe it was filed.

Court: So we don’t know what he asked for in the

Motion for New Trial, whether he asked for—I guess we

don’t because it is not in the record.

Mr. Cook: No sir, but a new trial was granted, the

ruling of the Court was that the Court was forced to

make that ruling based on a decision of Dwren and a few

cases that followed. Duren which indicated its retroactiv-

ity to a certain extent.. The State mostly as a vehicle to

get the issue decided again filed a Notice of Aggrava-

tion and these are the same aggravating circumstances

that were filed at the first case. Defendant filed a...

Court: Is it the same aggravating circumstances now

that was filed in the first case?

Mr. Cook: Yes sir, they are.

Court: There are no changes in the aggravating cir-

cumstances?

Mr. Cook: No sir.

Court: Okay.

Mr. Cook: That notice I believe is exhibit 1 in the

Petition before the Court. The defendant filed a Motion

to Quash that Notice and in effect asked the Court to

rule that the defendant could not be “in jeopardy of death

again” and the trial judge indicated that he would

sustain that order or that motion. The State sought a

Writ of Prohibition from the Court of Appeals, Western

District and it was denied and the State thereafter filed

its Motion for Writ of Prohibition in this Court and the

Preliminary Writ was issued. The State primarily rests

its position that it is entitled to seek the death penalty

in the second trial on the United States Supreme Court

decision of Chaffin v. Stynchcombe. It was a 1978 case.

That case was decided after the Pearce v. North Carolina

case. Now the Pearce case said that in a Judge-tried

case, and a judge-sentencing, the judge on a retrial could

not sentence to a harsher sentence the second time without

meeting certain requirements including specifying why

he was making a harsher sentence and pretty much re-

quiring that the harsher sentence had to be based on

actions of the defendant after the first trial. The Stynch-

combe case refused to extend that reasoning to a jury

sentencing situation. And said that in effect a defendant,

upon getting a retrial, can be subject to a harsher sen-

tence as long as it is within the range of punishment

provided by statute that he received at the first trial.

Both Pearce and Stynchcombe or the Chaffin case refer

to the Stroud v. United States case, which is a 1919 deci-

sion of the U.S. Supreme Court where the Birdman of

Alcatrez was found guilty the first time of murder and

given a life sentence and at a subsequent trial was found

guilty and given a death sentence. And the Supreme

Court of the United States held that that was proper.

In both the Pearce and the Chaffin cases the Supreme

Court refused to overrule the Stroud case and so it seems

to the State that reading both of these cases or all three

of these cases together, there is no constitutional prohibi-

tion on seeking and receiving the death sentence in a

retrial when the defendant has received life the first

time.

Court: Do you have any case where there is a bifur-

cated trial situation such as we have here, where it was

held that State could have another crack at the death

penalty even though the aggravating circumstances that

they were going to show at the second trial were the

same as those in the first trial on which they lost?

Mr. Cook: The only case that we have been able to

find, actually there are two cases, both out of Georgia,

one is cited by defendant in his brief, State v. Ward,

which is a Georgia Supreme Court decision. In that

Supreme Court case, or Georgia case, the Court seems

to indicate that there is no constitutional prohibition

against this, but bases its ruling on the statutes, in the

statutes involved, and speaks to the disproportionateness

of the decision, and I will get to that.

Court: Well, then that’s the only case you know of

that is presented, that’s had this question presented?

Mr. Cook: I have recently found one other case out

of Georgia, Redd v. State, in which the defendant—it’s

not really the same situation, the defendant received

death in both first trial and second trial, but in that

case the State added aggravating circumstances the sec-

ond time and the-the Court had no problem with that.

Those are the only two cases under the bifurcated system

that I know of. Now, the Court in Chaffin, in a footnote

speaks about the possibility of what a bifurcated system

would do to their decision and without necessarily speak-

ing of a death penalty situation, speaking just in general

terms of bifurcated systems on sentencing, discusses the

fact that they do not think that the bifurcation alone

would remove . . . would change the Chaffin decision.

In other words, the bifurcation alone would not put it

back into a Pearce type situation.

Court: What bearing do you think would Burkes

case, I think it is Burkes isn’t it, that holds that if they

don’t have something new the second time around they

can’t try the defendant again? Isn’t it Burkes v. United

States . . . the double jeopardy case that was handed

down fairly recently?

Mr. Cook: I’m afraid to say I’m not familiar with

that case.

Court: That’s the one that holds, I’m pretty sure, that

if the State doesn’t make a submissible case, they can’t

have a second crack at it or if they have lost on the issue,

they can’t have a second crack at it. What’s the difference

between in principle between that and the situation here

where you have lost on the death penalty effort but now

you want to doit again?

Mr. Cook: Right, the distinction I feel your Honor, is

this. In the various cases, the Redd case in Georgia

speaks of it, and the Johnson case out of .. . from this

Court talks about what double jeopardy is and in both

cases the distinction is made between double jeopardy,

double jeopardy applies to convictions and not to punish-

ment. The analogy that perhaps I would suggest to the

Court is in the Johnson case from Missouri, this is a case

that was decided in the early 70’s but referred to a trial

in the early 50’s. And at that time the jury was required ,

under the habitual criminal statute to decide whether or

not prior convictions had been proven. In the first case

. . . trial of Mr. Johnson, the State attempted to prove

a couple of prior convictions, the jury was silent in their

verdict as to whether or not they found that those ‘prior

convictions existed. The second trial—the State again

presented to the jury evidence of those prior convictions

and the defendant argued that that’s double jeopardy.

The jury having been silent on it the first time, has made

the final determination of that and you can not again

try him on that issue. The Supreme Court of Missouri

in the Johnson case specifically mentions and if I may

read very briefly and I think this is analogous. “The

habitual criminal act goes only to the punishment not the

guilt or innoncence of an accured of the offense on trial.

The double jeopardy clause of the Fifth Amendment is

written in terms of potential or risk of trial and convic-

tion not punishment. The double jeopardy clause as we

have noted is cast in terms of the risks or hazard of trial

and conviction not of the ultimate legal consequences of

the verdict. Given such meaning of the double jeopardy

clause and the nature of the second offender act, the dou-

ble jeopardy clause is not here applicable.”

It is my suggestion that the habitual criminal statute

as applied in the earlier 50’s is analogous to the bifurca-

tion system here. The jury determination of whether or

not aggravating circumstances exist only goes to the legal

consequence of the verdict.

Court: Then when you have the total judgment set

aside because the jury was improperly constituted rather

than for some trial error or some other thing that per-

haps does not even (intelligible). Where it starts at the

inception it vitiates the whole thing because the jury

was improperly constituted—are you going to touch on

that or does that make this case somewhat different than

others?

Mr. Cook: I think it applies here. The decision is

that the jury was improper, it was an improper jury.

Now, I think that it is probably clear that if this jury,

although it was paneled improperly, had actually acquitted

the defendant of capital murder and found him guilty

of murder 2nd, I think that double jeopardy would

probably preclude us from going forward with capital

murder even though the jury was improperly impaneled.

But in this particular situation, I think where we are not

really talking double jeopardy, I think that that is an

important distinction to be made that the defendant can

not have it both ways. I believe that that particularly

the Chaffin case and to a certain extent the Johnson case

out of Missouri touch on all of the major complaints

that the defendant has as to why he should not be sen-

tenced to death a second time. The double jeopardy situ-

ation I have already alluded to. The collateral estoppel

issue—the jury was silent in this case as to whether or

not it found that the aggravating circumstances existed.

It is my position that the instructions as given to the

jury, leave us not knowing whether the jury found the

aggravating circumstances existed or did not. If the law

was such that if the jury found aggravating circum-

stances existed they had to give the death penalty, then

the fact that they came back with life would indicate that

they did not find the aggravating circumstances existed.

However, our statute and instructions allow them to

find that the aggravating circumstances exist and write

them down and get the death penalty and we can find

that the aggravating circumstances exist but are out-

weighed by the mitigating circumstances, or they can find

that the aggravating circumstances exist and are not

outweighed by the mitigating circumstances but stil] they

don’t want to give the death penalty. In one of these last

situations is the jury required to make an affirmative

finding that they do or do not. So in effect we do not

know what the jury ruled, we know that they didn’t give

death, but we don’t know why. That’s why I do not

think that collateral estoppel is applicable because there

has been in effect no final determination of that issue that

we can really get our hands on.

Court: So you can’t really argue that the jury didn’t

give him death because they found aggravating circum-

stances, can you?

Mr. Cook: I’m saying...

Court: That’s what you are coming around to. Your

argument would permit you to say well they didn’t give

him death but they did find aggravating circumstances.

Mr. Cook: I’m saying we don’t know your Honor.

Court: Well we do know that they didn’t give him

the death penalty.

Mr. Cook: Right, which could be because they didn’t

find the aggravating circumstances exist or they did

find the aggravating circumstances exist but they still

didn’t want to give him death.

The other issues brought forth by defendant include

such things as vindictiveness and chilling effect which the

Chaffin case surely talks of both of these, I would argue

that the cases cited by the defendant, if you forgive me

I’m going to use the terms defendant state and trial

judge since in both cases, the relators change, it gets

rather confusing The State will point out that the de-

fendant’s cases such as Green did not apply because there

the first time he was convicted of murder 2nd and the

second time he was convicted of murder Ist, that’s clearly

not the type of situation we have here. Blackledge was

a misdemeanor that he was convicted on, then in a trial

de novo the State filed a felony indictment. Those are

clear indications of vindictiveness. Chaffin seems to say

that the fact that the jury does the sentencing and as

long as the jury does not know what the first sentence

was, this vindictiveness is taken care of, and also the

state is not asking for any higher sentence than it did

ask for in the first case. And Chaffin also talks about

the chilling effect on the right to appeal. There are

some cases of course that indicate that certain situations

give rise to impermissible chilling effect on the right to

appeal and Chaffin recognizes that but as in the Jackson

case which was cited by the defendant, the Chaffin court

specifically mentions that this Jackson case is a very

narrow ruling and that all decisions that the defendant

is required to make are going to be difficult decisions,

and may in effect, have a chilling effect on his rights

to appeal, but the question is-is it an impermissible chill-

ing effect. And it seems to me that Chaffin read along

with Stroud indicates that there is no impermissible

chilling effect upon the right to appeal even in a death

Situation. The last point raised by defendant is the dis-

proportionateness of this possibility of getting death a

second time. The Ward case is the case out of Georgia

where the defendant was sentenced to life imprisonment

the first time around and given death a second time.

Court: Is that case in your brief?

Mr. Cook: Itisin...in the other one.

In that case he was found guilty and given life the

first time, death the second time and the Court by look-

ing at the statute which says that the Court shall look

at similar cases and similar types of situations and simi-

lar defendants shall determine whether or not this de-

cision is disproportionate. I have three main reasons why

I would ask this Court not to follow the Georgia ruling

on this issue. One, 1 believe that this is an improper

view of the intent of the statute. I think the intent of

the statute was to look at several types of cases, for in-

stance, if we have within the last several years, we have

_three or four capital murders which arose out of Quick

Shop, gas station, proprietor type of holdups, and in

three cases the defendant is given life and in the last

case was death, and the Court has to look at that and

determine that this is disproportionate. I think also there

is a certain racial issue here is attempted to be taken

care of. The challenge is often been made that it is only

blacks that get the death penalty. This takes care of

that. We have three cases where the defendants were

white and got life in a very similar situation where the

defendant is black and got death. This Court can take

care of that situation. Secondly, I would argue that it is

premature at this point to rule that the death penalty

in this case would automatically per se be disproportion-

ate. One, this Court does not know what the evidence of

the first case is, does not know what the evidence in the

second case will be. Now the dissent in Ward makes a

point of this. That the evidence in the second case is

much stronger. I do not intend to tell this Court that

the evidence in my case is going to be stronger. I an-

ticipate that it will not, but I think that the Court

would be setting a dangerous precedent if it now, even

without looking at the evidence makes a per se ruling

that it would in effect have to deal with in the future.

| ee

Court: What’s the dangerous precedent that we would

be setting?

Mr. Cook: I think if you automatically say that not

for any constitutional reasons but for this dispropor-

tionate requirement in the statute, that everytime a de-

fendant is given life the first time, he can not possibly

be given death a second time, then I think there could

come a situation. ..

Court: We are not quite required to say that here,

because you have said to us, and I appreciate your

candor, that your evidence is going to be the same this

time.

Mr. Cook: Yes.

Court: So that we are really not forced to go as far

as you say in this case.

Mr. Cook: No, but I think that if the Court would

make this ruling at this time, in effect you’d be making a

ruling without any knowledge of what the evidence was,

whether it was a strong case to begin with or not a

strong case to begin with the first or the second time.

And you would be setting a precedent that might be dif-

ficult to deal with in later cases when you might want to

look at the evidence and I think of course the Court

could overrule it or change the precedent but I think

it would be a precedent that you would be making

without the benefit of the facts and the evidence in the

case which I think you would want.

Thirdly, I thing it is faulty reasoning. The Court is

required by the statute to look and see whether the death

penalty in a'particular case is disproportionate to simi-

lar cases and I stress the fact that is used the plural,

“cases” is used. But you have two things, the first trial

and the second trial, how can you say one is dispropor-

tionate to the other? You have two things, is one too

large and the other one toc small? I don’t think that

logically you can decide disproportionateness when you

only have two things to compare and I think that the

statute envisions this and says similar cases so that later

you can say there are three cases that go this way,

therefore, this case is disproportionate.

Court: What would we do with the very first case we

get then?

Mr. Cook: I think that... I believe it is the Gregg

case mentions that it was not unconstitutional for the

Georgia court to consider capital death penalty cases

which arose before the new statute was enacted so that

means you can go back to other death penalty cases over

the years. It is a difficult situation I realize but I think it

can be overcome.

Also, brough out in the dissent in the Ward case is

how do you determine what to do the next time when this

type of situation arises? For instance, in this case, in the

first trial we have a kidnapping and what the State is

describing as a brutal murder of a young woman by

drowning her, the first jury gave the defendant life im-

prisonment. Let’s assume that you allow us to go for-

ward and the second jury gives death, but you at that

time ruled that automatically that’s disproportionate,

therefore it is life. What happens two years later and you

have a similar siuation and the jury gives death? Then

in effect you’ve got two death juries and one life jury.

And so it would seem that the life now is dispropor-

tionate. But because you have applied the per se rule,

which I would submit is illogical, you then would be go-

ing the other way and Saying the third case must be

disproportionate. And as the dissent points out in Ward

which case do you look at in later cases. Do you look at

the first case that came back with life to compare a later

case or...

Court: I worry about the comparison, that’s going to

be an important factor I would agree, but certainly the

use of the case for a comparison basis is not near as im-

portant as the case itself when you are dealing with

whether or not the death penalty should be imposed.

Mr. Cook: I would agree.

I think this a, what I think would be a side issue as to

some of the consequences of what I think might occur if

the Court would make this (intelligible). That’s all I

have. Any further questions? Thank you.

PORTION OF PETITIONER’S ARGUMENT

Mr. Sindel: I also believe that there is some merit to

the point that we make that the two provisions under

which the State wishes to proceed, that is that the de-

fense was horrid, vile, wanton or that there is a sub-

stantial history of serious assaultive convictions runs in-

to severe problems under the Fourteenth Amendment Due

Process Clause for being vague and overbroad. For ex-

ample, in the case at bar the evidence was that substantial

history of serious assaultive convictions were two. Now

perhaps if the legislature had said more than one, then

we would know, but we have no determination and there

is no guideline given to the jury as required in Gregg

for what a substantial history is. Then we have to deter-

mine are these serious assaultive crimes, does serious

modify crimes? And if that is the case, does it mean

felonies, or does it mean that the assault itself is serious

in that it involved perhaps bodily harm or serious threat.

Court: Pardon me, we have one minute left on your

time.

Mr. Sindel: I don’t believe...

Court: May I ask a little bit of that minute?

Mr. Sindel: Yes.

Court: I know that in Duren it was suggested that

this court hadn’t kept up with the law very well about

taking the juries, but they have had capital murders par-

ticularly in Georgia and those places. Have you had any

one particular case wherein there was a reversal, it

couldn’t have been perhaps for a Duren reason, but for

any trial reason and went by and a decision was made the

way you are going, to you have some of them cited here?

Mr. Sindel: The case we cited, the best case...

The Court: I mean since the bifurcated approach to

life.

Mr. Sindel: It is the Ward v. Georgia case.

The Court: Ward v. Georgia.

Mr. Sindel: Now, in the particular case the State re-

fers to the fact that the tribunal did not find that there

was any violation of the constitution, that is not my in-

terpretation, nor do I believe it is the correct interpreta-

tion of what the case says. My belief is that the case says

we don’t have to reach those determinations because we

have decided that if it is the same trial, the death

penalty is going to be substantial and disproportionate

to a sentence in the second trial. That is the only case

that I know that proceeded directly in point. On the point

of whether or not that particular provision is vague or

overbroad, there is cited in the Gregg case a Georgia

case, Arnold v. State, 224 S.E.2d 386, which holds that

the provision of substantial history of serious assaultive

convictions is vague and overbroad. Thank you.

STATE’S REBUTTAL

Mr. Cook: I'll just take a few moments to answer a

few of the things I might mention that the Ward case

was originally reversed because of the error in alibi rul-

ing (intelligible)

Court: Did you say, I couldn’t hear, the Ward case?

Mr. Cook: Yes, it was an alibi problem in his first

case.

Court: It may be that from the respect that the fact

that this was set aside because of Duren, would be in-

correct. If that thought were correct then if a person

were convicted of a lesser included offense then the case

were reversed because of jury conduct or misconduct or

whatever, then in all those cases they could go back

and try the fellow again for the higher offense. That

would probably be in violation of a case or two wouldn’t

it?

Mr. Cook: I think it would. That’s why I think it is

important to make the distinction here that the second

part of a bifurcated trial does not come under the double

jeopardy.

Court: Let me ask you this, is this correct, you do

not rely upon the fact that this case was reversed under

Duren as of any significance?

Mr. Cook: I think it is an interesting side light, I

don’t rely upon it, It is an important aspect.

Court. Alright, thank you.

Court: If this matter hadn’t appealed he’d be over in

the penitentiary today, wouldn’t he?

Mr. Cook: Yes.

Court: Despite that jury.

Mr. Cook: Yes.

First, I would like to ask the Court to find that what

Mr. Sindel is asking the Court to find that that it is a

legal fiction. There are not two statutes, there are not

two offenses, there is one, Capital Murder. The question

is how is that person to be punished. In the cases that

I cited, the Johnson case and several others, make a def-

inite distinction. The aggravating circumstance in this sit-

uation I do not believe is an element of anything. It’s

given rather important significance in that they must

find it beyond a reasonable doubt but it’s not an element

_ area

Court: Is there any . . . Is there anything com-

parable in the State of Missouri that you can think of

in the criminal law?

Mr. Cook: The only thing that I can think of was

what I read earlier from the Johnson situation which

used to be the case where the jury had to determine

whether or not the habitual criminal statute applied.

Court: But then the punishment was automatic.

Mr. Cook: I believe so.

Court: It was the highest that could be charged?

Mr. Cook: Right, but...

Court: In the capital murder statute of Missouri, you

say it really isn’t two statutes, I don’t know how—I’m

not sure, I don’t know whether they are subsections.

Mr. Cook: Sections.

Court: But if a person is convicted of capital mur-

der, is this correct: He will be sentenced to life unless

the jury, if it’s before a jury, makes certain affirmative

findings and concludes that he shall be sentenced to

death.

Mr. Cook: That’s correct.

Court: So that in order to get to the death penalty

part, to that end result, it is not that it’s necessarily

based upon what was heard in the first part of the trial

into considerate, but it does require affirmative findings.

Mr. Cook: Yes.

Court: Then how does that—then why is that not,

why is that not comparable to, not a separate crime

necessarily, but at least a sufficiently and significantly

Separate proceeding that it should be allowed to stand

on its own feet.

Mr. Cook: I guess two reasons. One is the historic

view of double jeopardy, that it is not both punishments.

Now, the court can take that next step and say yes, capi-

tal murder is sufficiently different from capital murder

situation, and the death penalty is sufficiently serious

step we wish to apply it, but I think the Court would

be going against the historic view.

Court: Well, I guess I’m kind of interested in is this,

I don’t have any quarrel with what you say with respect

to the historic view, except that in the historic views are

cases, where can we find one where the punishment... .

that strain of punishment or that aspect of the case re-

quired the State to proceed but on further evidence and

then required a jury to make specific further findings,

where can we find that in the history?

Mr. Cook: But I think, don’t we have that to a cer-

tain extent in the old habitual criminal situation where

they had to affirmatively find that required convictions

existed before that next sentencing came into effect.

Now clearly there are basic distinctions there. The other

situation is this Redd v. Georgia case which is not cited

in any of the briefs where the...

Court: R-e-d?

Mr. Cook: Right. R-e-d-d, 236 S.E.2d 365. The

Supreme Court of Georgia.

Court: Will you do the same as...

Mr. Cook: Yes.

Court: The other gentlemen . .. give us a letter

pretty quick.

Mr. Cook: I just gave you the cite to Ward so I

apologize there. But the Redd case, as I mentioned

earlier, the State...

Court: Are you saying Ward or Redd?

Mr. Cook: Now I am on Redd. R-e-d-d—Redd.

Court: Redd, I though (intelligible).

Mr. Cook: Excuse me. The Redd case, the first trial,

the Court, the State gave three aggravating circum-

stances to the jury, and the jury stopped after finding

717

one of them and it was not clear, as it is not clear here,

whether they found that the other two didn’t exist or

they just didn’t go to them or whatever. The case was

overturned for a reason I don’t recall. {he second time,

the court, the jury was again given the three. Now, I

think maybe even an extra one. Don’t hold me to that.

The Court had no problem with that. I think that if

if the Supreme Court of Georgia, which apparently has

had more opportunity over the years to decide these

things, they have no problem with that holding that that

is some sort of jeopardy, because clearly if the lack of

finding an aggravating circumstance brings into effect

double jeopardy, you could not bring that aggravating

circumstance again in a later trial, and in effect they

allowed that to happen in this particular case.

Court: But they gave him death in that one on the

first time around.

Mr. Cook: Yes sir, both.

Court: May I ask this, doesn’t this tell us that there

is just one crime charged and that the second proceed-

ing on the matter of determining the punishment is a

part, a continuing part of the first and of the principle

case, because the jury as I understand it, is charged with

responsibility of considering all the things that they

heard at the outset and all the qualities of the evilness of

the crime or of the non-evilness of the crime. The hein-

ousness or whatever so that that goes right on and is a

(intelligible) and as I understood the thrust of the Su-

preme Court of the United States and its various cases

where it has dealt with this problem of capital punish-

ment, the irony is then we are going to extend an addi-

tional offering to the accused to give him a chance to,

if you will, escape the death penalty and we are going

to insist that there be a final evaluation of the of whether

the death penalty should or shouldn’t be awarded, after

he has been found guilty of the crime of the capital mur-

der and so it isn’t if you will, seems to me a new concept

of double jeopardy, but it’s a matter of an additional

benefit offered to the accused.

Mr. Cook: I agree. I think though that if the court

would hold that this somehow is double jeopardy that

that would be a new concept and of course would not be

the result that I would ask for. Let me say that I think

the Court, I don’t know that the Court would want to,

but this problem perhaps could be corrected if the in-

structions were made that you have to have a yes or no

answer to each aggravating circumstance. Yes we find

this aggravating circumstance to exist and we give death

or no we do not find it and therefore we give life, or yes

we find it. I think...

Court: I think that those aspects were probably al-

ready considered by the Court and under the statute, it’s

life unless there is affirmative findings of the aggravating

circumstances plus a determination by the jury to impose

death.

Mr. Cook: Right. I am not suggesting that the Court

would want me to do this, I am suggesting that this would

be one way to perhaps avoid the problem and I would not

ask the Court to do it at all.

Two other points I would like to mention, briefly, I

would I think I should deny on the record any indica-

tion of vindictiveness on the part of me or my office. I

think that how we asked for and argued for the death

penalty the first time and how we do it the second time is

merely a matter of trial strategy and not to be consid-

ered in light of whether or not it is vindictive. Also the

jury in the second trial should, I would assume, will not

know how the State argued at the first trial.

Court: This question has been probably asked you,

is there any difference in a reversal by a trial error for

something or this Duren case where the State may itself

kind of goofed up the deal by having a jury paneled

there that was later disapproved by the Supreme Court

of the United States. Is there any distinction at all, I

mean, can we say here that I think Judge Higgins asked

it, but there never has been a trial. That’s kind of far-

fetched I presume, isn’t it, to say that this man was

never in jeopardy in the first place because it was an

illegally constituted jury and whatever they did was a

total waste of time? Can we get by with that argument?

Mr. Cook: Well you can try. Laugh. I still have.

never forgiven Mr. Sindel for picking or convincing the

trial Judge of St. Louis County to pick Jackson County

of all of the counties in the State we could have gone,

we picked the County with the Duren problem. But I

don’t think that, as I say, I think it is an interesting

side light in one that may add light to how you would

wish to rule. I would not think that you would be able

to couch a ruling upon that, in that argument. Also on

the vagueness of the statute I think again it is improper

untimely for this Court to decide the constitutionality

or the vagueness of the aggravating circumstances at this

time since we do not have before you the evidence which

I think would certainly add light to that and to a certain

extent the Gregg decision by the Supreme Court has

given at least tout approval to the wording in the ag-

gravating circumstances. Thank you very much.

[SEAL]

SUPREME COURT OF MISSOURI

EN BANC

No. 61499

STATE EX REL. GEORGE R. WESTFALL, RELATOR

Vv.

Hon. DONALD L. MASson, Judge, 16th Judicial Circuit,

RESPONDENT

OPINION—Filed Feb. 11, 1980

Prohibition, to prevent respondent, the Honorable Don-

ald L. Mason! Judge of the Sixteenth Judicial Circuit,

from proceeding in the retrial of Robert Bullington for

capital murder (the indictment charged numerous of-

fenses) without allowing the prosecution to seek imposi-

tion of the death penalty.

Prior to trial in 1978 the State under § 565.006 (2),

RSMo 1978,” filed a “Notice of Evidence in Aggravation”

announcing its intention to seek the death penalty in the

capital murder charge. That trial resulted in a verdict

of guilty on all counts including capital murder, Octo-

ber 11, 1978. A hearing was conducted the next day

under the bifurated procedure mandated by § 565.006,

' Defendant was charged in the Circuit Court of St. Louis County

by indictment with capital murder, kidnapping, armed criminal

action, burglarly first degree and two counts of flourishing a

deadly weapon. The cause was transferred on change of venue to

the Sixteenth Judicial Circuit in Jackson County, Missouri.

* See also §$ 565.006, RSMo Supp. 1979 (as amended) (effective

date September 28, 1979).

RSMo 1978, in which the jury was presented additional

evidence in “extenuation, mitigation, and aggravation”

of punishment. The jury directed that defendant be

sentenced to life imprisonment without probation or

parole for not less than fifty years.

Defendant’s motion for new trial, challenging the con-

stitutionality of the Jackson County jury panel, was

sustained February 18, 1979, in light of the United States

Supreme Court’s holding in Duren v. Missouri, 489 U.S.

3857 (1979). In preparation for Bullington’s retrial the

State has filed a second “Notice of Evidence in Aggrava-

tion” indicating its continued intention to seek the death

penalty.® Responding, defendant moved to strike that

“Notice” and to exclude from trial all evidence in ag-

gravation of punishment. Respondent announced his in-

tention to enter an order sustaining defendant’s motion

to strike, “to the extent that the state will not be per-

mitted to seek the death penalty, should the defendant

again be found guilty of capital murder.” Relator then

sought prohibition and for reasons now discussed, our

preliminary rule heretofore entered is made absolute.

Respondent first contends prohibition is inappropriate

procedurally because (1) relator ( Prosecuting Attorney

of St. Louis County) failed to allege the State had no

adequate remedy at law, (2) that the state’s limited

right of appeal forecloses resort to prohibition, and (3)

the issue does not involve the jurisdiction of the trial

court. The first contention may be disposed of summarily.

On October 2, 1979, by order of this Court relator was

permitted to amend its petition and allege the State had

no adequate remedy at law. As to respondent’s second

*The notice advises the State will present evidence of two

aggravating circumstances. First, that the killing was committed

by a person with substantial history of serious assaultive convic-

tions. § 565.012.2(1), RSMo 1978. Second, that the offense was out-

rageously or wantonly vile, horrible or inhuman. § 565.012.2(7),

RSMo 1978.

argument it is precisely because the state has an ex-

tremely limited right of appeal under § 547.210 RSMo

1978, and Rule 28.04 (now Rule 30.02) that extra-

ordinary relief is proper to review interlocutory orders

in criminal cases. See State ex rel. Corcoran v. Buder,

428 S.W.2d 935, 939 (Mo. App. 1968). Further, it is

settled law that, “The writ is properly invoked to re-

strain the enforcement of orders beyond or in excess of

the authority of a judge and to keep a court within the

compass of its jurisdiction.” State ex rel. Vogel v. Camp-

bell, 505 S.W.2d 54, 58 (Mo. bane 1974). Because, as we

shall presently discuss, neither the federal nor state con-

stitutions nor Missouri law prevent Bullington from be-

ing subject to the death penalty on retrial, the trial

court exceeded (or by its announced order would have

exceeded) its authority in denying the state leave to

seek imposition of the death penalty. Accordingly, pro-

hibition lies. See State ex rel. Peach v. Bloom, 576 S.W.

2d 744 (Mo. bane 1979).

III

The principal question for our determination is

whether on retrial the death penalty under § 565.008,

RSMo 1978 is barred as possible punishment by consti-

tutional or statutory considerations. Respondent argues

that because the jury in the first trial convicted Bulling-

ton of capital murder but sentenced him to life, the fifth

amendment’s prohibition against double jeopardy, the

eighth amendment’s proscription of cruel and unusual

punishment, the fourteenth amendment’s guarantee of

due process and § 565.014.8(3), RSMo 1978, prevent the

State from continuing to seek the death penalty. Long

settled constitutional doctrine enunciated by this Court

and reiterated in recent decisions of the United States

Supreme Court leads to rejection of these challenges.

A defendant successfully overturning a conviction for

a particular offense may in most instances be retried for

that offense notwithstanding double jeopardy doctrine.‘

United States v. Ball, 163 U.S. 662, 672 (1896) ; Forman

v. United States, 361 U.S. 416, 425 (1960) ; United

States v. Ewell, 383 U.S. 116, 121 (1966). In some cases

the rationale for such results has been couched in lan-

guage of a waiver theory and in others that retrial con-

stitutes but continuing jeopardy. However the rule is

more usually described in terms of policy considerations.

As Mr. Justice Harlan explained in United States v.

Tateo, 377 U.S. 468, 466 ( 1964),

While different theories have been advanced to

support the permissibility of retrial, of greater im-

portance than the conceptual abstractions employed

to explain the Ball principle are the implications

of that principal for the sound administration of

justice. Corresponding to the right of an accused to

be given a fair trial is the societal] interest in pun-

ishing one whose guilt is clear after he has obtained

such a trial. It would be a high price indeed for

society to pay were every accused granted immunity

from punishment because of any defect sufficient to

constitute reversible error in the proceedings leading

to conviction. From the standpoint of a defendant,

it is at least doubtful that appellate courts would

be as zealous as they now are in protecting against

the effects of improprieties at the trial or pretrial

stage if they knew that reversal of a conviction

would put the accused irrevocably beyond the reach

of further prosecution. In reality, therefore, the

practice of retrial serves defendants’ rights as well

as society’s interest.

Essentially respondent argues that the federal double

jeopardy clause prohibits not the retrial for the offense

of capital murder ( Bullington was convicted of that of-

* For a limited exception to this rule see Burks Vv. United States,

437 U.S. 1, 18 (1978).

fense) but only the imposition of a more severe punish-

ment upon retrial. Such contention was squarely rejected

sixty years ago in Stroud v. United States, 251 U.S. 15

(1919). There defendant® was convicted in a second

trial for the murder of a prison guard and sentenced to

life imprisonment by the jury. On retrial (his third)

secured by Stroud, the new jury also convicted him of

first degree murder and he was sentenced to death. The

Court held the fact that Stroud was subjected to the

increased punishment of death upon retrial did not place

him in double jeopardy. In North Carolina v. Pearce,

395 U.S. 711, 720 (1969), the Court reaffirmed that a

necessary corollary of the power to retry a defendant is

the state’s power to impose any legally authorized sentence

upon reconviction, though greater than the sentence orig-

inally imposed. In refusing to depart from an unbroken

75 year line of decision supporting this principle, the

court explained, “(T]he original conviction has, at the

defendant’s behest, been wholly nullified and the slate

wiped clean.” Jd. at 721. Recently the Court referred

to Stroud as a “well-established part of our constitutional

jurisprudence” and specifically declined an invitation to

discard the principles stated there. Chaffin v. Stynch-

combe, 412 U.S. 17, 24 (1973). Within the past year

the United States Court of Appeals for the Sixth Circuit,

following Stroud and rejecting this same argument, held

that the fifth amendment does not forbid imposition of

the death penalty on retrial of defendant for an offense

upon which he was originally sentenced to life. Gully v.

Kunzman, 592 F.2d 288, 289 (6th Cir. 1979), cert. de-

nied, 99 8. Ct. 2850 (1979).

Despite respondent’s stated intention to circumvent

the effect of Stroud and the decisions following it, we find

nothing in the federal constitutional guarantee against

double jeopardy to prevent the state from seeking the

death penalty on Bullington’s retrial for capital murder.

® Stroud was popularly known as the “Birdman of Alcatraz.”

Respondent quite untenably suggests that the legis-

lature has bisected the crime of capital murder defined

in § 565.001, RSMo 1978.° He argues that if life im-

prisonment is the penalty imposed, the offense is some-

how transfigured and changed into a lesser included of-

fense of capital murder with capital punishment and be-

comes the crime of capital murder without capital pun-

ishment. Thus, he concludes, the jury’s imposition of

life imprisonment implicitly constitutes an acquittal of

the greater offense. We are unwilling and indeed are

unauthorized to indulge such fiction. It is not our pre-

rogative to create separate crimes from those defined

by statute. The simple fact is that capital murder under

§ 565.001, RSMo 1978 is a single crime with the range of

punishment established by the legislature at life im-

prisonment without probation or parole for 50 years to

the death penalty. Respondent’s argument not only runs

contrary to the decided cases, it ignores the statutory

sections which define capital murder, prescribe the pun-

ishments for that offense, and detail the procedures for

imposing those punishments. As noted above, there is

but one crime defined as capital murder and the acts

proscribed are specified in § 565.001. It was for that

offense Bullington stood convicted following the first trial

and it is for that offense he remains charged and awaits

retrial.

As recognized by this Court in State v. Duren, 547

S.W.2d 476, 478-480 (Mo. bane 1977), federal constitu-

tional requirements forbad mandatory imposition of capi-

tal punishment. In response to the constitutional direc-

tive that the jury’s discretion in capital sentencing be

“suitably directed” so as to minimize the risk of arbi-

trary and capricious application, Gregg v. Georgia, 428

® Section 565.001, RSMo 1978, provides: “Any person who un-

lawfully, willfully, knowingly, deliberately, and with premedi-

tation kills or causes the killing of another human being is guilty

of the offense of capital murder,”

U.S. 153, 189 (1976), and that consideration of the in-

dividual circumstances of each offender and crime was

“constitutionally indispensable,” Woodson v. North Caro-

lina, 428 U.S. 280, 304 (1976), the Missouri legislature

enacted § 565.006 and § 565.012, RSMo 1978, providing

for a presentence hearing following a conviction for capi-

tal murder at which time aggravating and mitigating

circumstances as to the offender and the offense would

be considered.’ The existence of these sentencing pro-

cedures does not alter the fact that capital murder by

statutory definition § 565.001, RSMo 1978, is a single

offense, namely the unlawful, willful, knowing, deliberate

and premeditated killing of another human being. The

jury, in the § 565.006 proceeding, does not reconsider the

issue of guilt, for that has been previously determined.

Instead, at that stage they decide only the punishment to

be imposed. In sum, the fact that the jury will consider

the range of punishment for the offense of capital murder

does not as respondent argues rend the crime of capital

murder and create discrete offenses. The Stroud court

dismissed such argument stating, “The fact that the jury

*The United States Supreme Court clarified the constitutional

standards for imposition of the death penalty in five opinions

announced in 1976. Gregg v. Georgia, 428 U.S. 158 (1976); Jurek

Vv. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242

(1976) ; Woodson v. North Carolina, 428 U.S. 280 (1976); and

Roberts v. Louisiana, 428 U.S. 325 (1976). In these opinions the

court struck down as unconstitutional the North Carolina and

Louisiana statutes providing for mandatory imposition of the

death penalty and upheld the capital sentencing procedures enacted

by Georgia, Texas and Florida. As explained in Gregg, “{T]he con-

cerns expressed in Furman that the penalty of death should not be

imposed in an arbitrary or capricious manner can be met by a care-

fully drafted statute that insures that the sentencing authority

is given adequate information and guidance. As a general propo-

sition these concerns are best met by a system that provides for a

bifurcated proceeding at which the sentencing authority is apprised

of the information relevant to the imposition of sentence and

provided with standards to guide its use of the information.”

Gregg Vv. Georgia, 420 U.S. 158, 195 (1976).

may thus mitigate the punishment to life did not render

the conviction less than one for first degree murder.”

Stroud v. United States, 251 U.S. 15, 18 (1919). See

Redd v. State, 242 Ga. 876, 252 S.E.2d 888, 389 (Ga.

1979), cert. denied, 99 S. Ct. 2870.

Respondent also argues that the doctrine of collateral

estoppel as embodied in the fifth amendment’s protection

against double jeopardy forecloses the state from seeking

the death penalty if Bullington is again convicted of

capital murder, and points to Ashe v. Swenson, 397 U.S.

436, 445 (1970). In Ashe the concept of collateral es-

toppel was elevated to the level of double jeopardy. There

several poker players at their game table were robbed.

Defendant was tried and acquitted for the crime of rob-

bing player #1. An element necessary for conviction of

that crime, (identity of the accused as the robber) was

found against the State and defendant acquitted under

his theory of alibi. In a later trial for the robbery of

poker player #2 the Court deemed it double jeopardy

to relitigate the identity issue. The Ashe Court stated

that whether an issue of ultimate fact necessary for con-

viction is determined by a general jury verdict requires

a court, “to examine the record of a prior proceeding,

taking into account the pleadings, evidence, charge and

other relevant matter, and conclude whether a rational

jury could have grounded its verdict upon an issue other

than that which the defendant seeks to foreclose from

consideration.” Ashe v. Swenson, 397 U.S. at 444.

Respondent argues that a finding of no aggravation is

necessary to the first jury’s finding that defendant suffer

life imprisonment rather than death for the crime of

capital murder; hence the State is estopped from seeking

to prove aggravation in the second trial. This conten-

tion is without merit for a number of reasons. A ra-

tional factfinder might well premise its imposition of life

imprisonment on various factors other than the absence

of aggravation. The applicable instructions drafted by

the Supreme Court Committee on Patterned Criminal

Charges and Instructions for death penalty proceedings

demonstrate this option in the jury. Under MAI-CR

15.42 if the jury finds that at least one of the statutory

aggravating circumstances exists, it must decide whether

it is a “sufficient aggravating circumstance” to warrant

the imposition of the death penalty. Even then the jury

need not impose death if in its weighing process it in-

tuitively feels the mitigating circumstance(s) tips the

scale against the death penalty. MAI-CR 15.44. Finally,

though the jury finds that sufficient mitigating circum-

stance(s) have not been shown, defendant is given the

further benefit of our Instruction MAI-CR 15.46 which

provides: “[Y]Jou are not compelled to fix death as the

punishment. Whether that is to be your final decision

rests with you.” Thus the predilections of the jury as to

mercy and the death penalty remain a part of the sys-

tem within the limits and safeguards established by

statute.

Clearly the first jury might have imposed life imprison-

ment in response to a defencant’s plea for mercy rather

than finding no aggravation. Ashe v. Swenson is in-

apposite here and the State is not precluded from seek-

ing the death penalty by any aspect of the fifth amend-

ment’s protection against double jeopardy.

Respondent, relying on North Carolina v. Pearce, 395

U.S. 711 (1969), next argues that allowing the prosecu-

tion to seek the death penalty, should Bullington be re-

convicted of capital murder, would violate principles of

due process in that a finding of capital punishment by

the jury at retrial would be “tainted by vindictiveness.”

However, Pearce is not controlling here. In that case,

defendant’s conviction was reversed through collateral

attack but on retrial he was again convicted and when

resentenced by the court received more severe punish-

ment than that originally imposed. Jd. at 713-714. The

Pearce Court concluded, “Due process of law, then, re-

quires that vindictiveness against a defendant for hav-

ing successfully attacked his first conviction must play

no part in the sentence he receives after a new trial... .

[D]ue process also requires that a defendant be freed

of apprehension of such a retalitory motivation on the

part of the sentencing judge.” Id. at 725. (Emphasis

ours.) This exposure to possible vindictiveness of the

sentencing judge does not occur in the jury sentencing

process under Missouri’s capital murder statutes.

The due process clause is not violated by all possibili-

ties of increased punishment upon retrial, “but only by

those that pose a realistic likelihood of vindictiveness.”

Blackledge v. Perry, 417 U.S. 21, 27 (1974). See Colten

Vv. Kentucky, 407 U.S. 104, 116 (1972). Ludwig v.

Massachusetts, 427 U.S. 618, 627 (1976). In this con-

nection the Supreme Court held recently that Pearce-

like restrictions were inapplicable in jury resentencing at

least where improper and prejudicial information regard-

ing the prior sentence is withheld. Chaffin v. Stynch-

combe, 412 U.S. 17, 28 (1978). The Chaffin court found

the potential for vindictiveness in jury resentencing, de

minimis for these reasons: First, a retrial jury in the

normal course of events will be unaware of the disposi-

tion of the prior proceeding. Second, juries, unlike a

trial judge, who has been reversed on appeal, will have

no personal stake in the prior conviction and no motiva-

tion to engage in self-vindication on remand. Third,

juries will not be sensitive to the institutional interests

which might be promoted by imposing higher sentences

after appeal as a means of discouraging meritless appeal.

Id. at 26-27.

Respondent, in a final attempt to circumvent the clear

import of Chaffin, suggests that because that case did

not involve a bifurcated proceeding as provided under the

Missouri capital murder statute, the holding there does

not control our case. However, this overlooks the fact

that Chaffin states:

While some jury-sentencing States have adopted

bifurcated jury trials, in which the jury assesses the

punishment in a separate proceeding after a verdict

of guilty has been rendered [citations omitted],

bifurcation alone would not wipe away the funda-

mental differences between jury and judicial sentenc-

ing. It may make little sense to supply the jury

with information about the defendant's conduct if

the goal of jury sentencing is not necessarily to fit

the punishment to the offender, and if the jury is,

therefore, not concerned about matters considered

pertinent to judicial sentencing.

Petitioner and recent court of appeals cases sug-

gest that an approximation of the Pearce limitations

could be realized either by instructing the jury that

it may return no verdict higher than the former sen-

tence, or by empowering the judge to reduce the

second sentence whenever it exceeds the former sen-

tence. [citations omitted.] Although these alterna-

tives would provide an absolute protection from the

possibility of vindictiveness, they would also inter-

fere with ordinary sentencing discretion in a manner

more intrusive than contemplated by Pearce. They

would achieve, in the name of due process, the sub-

stance of the result we have declined to approve un-

der the Double Jeopardy Clause.

Id. at 28 n.15.

Such constraints upon jury discretion as those urged by

respondent would be particularly unfortunate in the

capital sentencing area where individualized considera-

tion of each offender is constitutionally required. Lockett

v. Ohio, 488 U.S. 586, 604 (1978).

Missouri decisions, prior to Chaffin, recognized that

“vindictiveness” has no relevance to jury resentencing.

See Spidle v. State, 446 S.W.2d 793, 795 (Mo. 1969).

Kansas City v. Henderson, 468 S.W.2d 48, 52-53 (Mo.

1971), cert. denied, 404 U.S. 1004 (1971). Accordingly,

we find that as a jury will decide whether Bullington

should be subject to the death penalty if he is recon-

victed of capital murder, there is no realistic likelihood

of vindictiveness on retrial. It is appropriate to reem-

phasize that defendant has been awarded a retrial which

he sought and it does not violate due process to permit

such trial for the crime he was originally and still stands

charged. Nor does the award of a new trial alter the

range of punishment prescribed by the statute. The de-

cision as to punishment under the prescribed procedure

is that of the individual jury, not to be engrafted upon

or controlling of a new jury not yet empaneled. To hold

otherwise would distort the clear purpose of the statu-

tory scheme which offers protection against aberrant

results by establishing a system that allows the trier

of fact (1) to determine guilt or innocence without

the distraction of evidence irrelevant to that issue

($ 565.006), (2) if a guilty verdict is returned to con-

sider facts in aggravation and mitigation as they relate

to punishment (§ 565.006(2)), and (3) provides a sys-

tem of mandatory review (§ 565.014) that guards

against, among other things, a sentence imposed “under

the influence of passion, prejudice or any other arbitrary

factor.” (§ 565.014.38(1)). This is not a deprivation of

due process, but an extension to a high order of the

process due the accused. The subsequent jury will decide

the issues anew and it is their responsibility to deter-

mine guilt and assess the punishment upon conviction

(§ 565.006.2). Further, if on appeal reversal occurs “be-

cause of error only in the presentencing hearing, the new

trial . . . shall apply only to the issue of punishment.”

§ 565.006(3). There is no suggestion in this language

that on such new trial the range of punishment is re-

stricted to life imprisonment only. To the contrary, the

choice of punishment is the principal issue to be decided

in such a new trial.

Respondent next contends the possibility of a harsher

sentence on retrial would unconstitutionally chill defend-

ant’s rights of appeal. We do not agree. United States

v. Jackson, 390 U.S. 570 (1968), cited by respondent as

authority, involved a federal anti-kidnapping statute

which allowed only the imposition of the death penalty

following a jury trial. See 18 U.S.C. § 1201(a) (amended

1972). That statute was held to unconstitutionally deter

the exercise of a defendant’s fifth and sixth amendment

rights to insist upon his innocence and demand a trial by

jury. 390 U.S. at 581-583. Unlike the federal statute

which singled for punishment by death that class of

defendants who sought jury trials, the Missouri capital

murder statutes draw no such invidious distinction.

Recent authority demonstrates that Jackson should be

limited to statutes of the type which on their face penal-

ize the assertion of constitutional rights. In Brady v.

United States, 397 U.S. 742 (1970) and North Carolina

v. Alford, 400 U.S. 25 (1970), defendants entered pleas

of guilty to avoid the possibility of the imposition of

capital punishment by a jury. The United States Supreme

Court held that the fact a plea was entered to avoid the

imposition of the death penalty by a jury did not ipso

facto render the plea involuntary. Brady v. United States,

397 U.S. 742, 751 (1970; North Carolina v. Alford, 400

U.S. 25, 31 (1970). If the threat of the death penalty

does not impermissibly coerce guilty pleas and encourage

waiver of the plethora of rights guaranteed in a criminal

trial under the fourth, fifth, sixth and fourteenth amend-

ments, we do not believe the possibility of capital punish-

ment unconstitutionally chills a defendant’s right to ap-

peal. This view is supported by that expressed in Chaffin

v. Stynchcombe, supra, at 35 where it is stated: “The

choice occasioned by the possibility of a harsher sentence,

even im tne case in which the choice may in fact be ‘diffi-

cult,’ does not place an impermissible burden on the right

of a criminal defendant to appeal or attack collaterally

his conviction.”

Respondent next contends that § 565.008, RSMo 1978,

is unconstitutional because the death penalty permitted

therein constitutes cruel and unusual punishment viola-

tive of the eighth amendment of the United States con-

stitution and art. I, § 21 of the Constitution of the State

of Missouri. This contention, first raised in defendant’s

Motion to Strike was renewed in respondent’s brief before

this Court with this language, “the death penalty, .. .

is in all circumstances, a cruel and unusual punishment

under both Federal and State constitutional provisions

. -” Respondent is quite mistaken, the death penalty

is not per se violative of the eighth amendment. See

Gregg v. Georgia, 428 U.S. 153, 187 (1976). Further,

because the statutory procedures for imposition of the

death penalty in Missouri are virtually identical to those

contained in the Georgia statute challenged in Gregg no

serious question remains as to their validity under the

federal constitution. See Gregg v. Georgia, 428 U.S. 158,

196-207. Lockett v. Ohio, 488 U.S. 586, 604-605 (1978).

Thus we need examine only for the validity of § 565-

008, RSMo 1978, under art. I, $21 of the Missouri

Constitution.* The ultimate question is whether the pun-

ishment is disproportionate to the crime for which im-

posed. State v. Agee, 474 S.W.2d 817, 822 (Mo. 1971);

State v. Brownridge, 353 S.W.2d 715, 718 (Mo. 1962).

In this connection it has been held that a punishment is

not cruel simply because it is severe. Id. State v. Stubble-

field, 157 Mo. 360, 58 S.W. 337, 339 (Mo. 1900). When

considering the constitutionality of a punishment statute

enacted by our legislature, we presume its validity and

those who seek to invalidate it bear a heavy burden of

demonstrating that it is either barbarous or excessive.

Gregg v. Georgia, supra, at 175 (1975); See State v.

Mitchell, 563 S.W.2d 18, 26 (Mo. bane 1978).

We are mindful that the legislature necessarily con-

sidered those who have fallen victim to violent crime

within our society. Their lives have been taken without

notice and no rigorous procedural safeguards protected

them from premeditated attack and death. No crime is

more disruptive of peace and order or so violative of the

8 Art. I, § 21, Mo. Const. provides: “That excessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual

punishment inflicted.”

rights of the individual as murder. The spread of vio-

lent crime threatens the basic fabric of our Republic and

surely all right thinking persons recognize that physical

security of its members is among the first objects of an

organized society. We cannot say that the death penalty

is crue] and unusual punishment for those who unlaw-

fully, willfully, knowingly, deliberately, and with pre-

meditation kill another human being. This view finds

wide support in the legislative enactments of sister states,

as forty jurisdictions attach a penalty of death to certain

categories of murder.

Given the extreme nature of the crime of murder, as

well as the fact that the overwhelming majority of Amer-

ican jurisdictions allow imposition of capital punishment

in specific instances, we will not substitute our judgment

for that of our duly elected legislature in this question

of policy. We hold § 565.008, RSMo 1978 does not pre-

scribe cruel and unusual punishment in violation of art.

I, § 21 of the Missouri Constitution.

It is next asserted that the death penalty may not be

invoked at Bullington’s second trial because § 565.008.2

(7), RSMo 1978, which provides one of the two aggra-

vating circumstances the state seeks to prove at retrial,

is unconstitutionally vague and overbroad in violation of

the fourteenth amendment.® The United States Supreme

Court, confronted by a similar argument in Gregg v.

Georgia, 428 U.S. 153, 201 (1976), as to a Georgia stat-

ute (Ga. Code Ann. § 27-2534.1(b) (7) ) with provisions

essentially the same as ours, concluded that while it was

arguable any murder involves “depravity,” the language

need not be construed in such a broad fashion. Hence

this statutory aggravating circumstance was not found

so wanting in precision that it rendered the capital sen-

tencing procedure capable of arbitrary and capricious

* Section 565.008.2(7) provides: “The offense was outrageously

or wantonly vile, horrible or inhuman in that it involved torture,

or depravity of mind.”

decision violative of the eighth amendment. We see no

reason to find that our almost identical statutory provi-

sion violates the fourteenth amendment particularly when

the statute and its application is subject to mandatory

review by the Missouri Supreme Court in all capital

cases.

Respondent’s final claim is that § 565.014.3(3), RSMo

1978, forbids the prosecution from seeking the death

penalty at Bullington’s second trial. That statute man-

dates proportionality review by this Court and that we

determine in each case the excessiveness vel non of the

death penalty’s imposition." We reject the contention

that when a jury in the first trial of a capital murder

case imposes a life sentence, assessment of capital punish-

ment by any subsequent jury is invariably excessive.

Such argument is little more than a variant of the double

jeopardy argument dealt with earlier in this opinion, but

respondent, pressing the contention, relies in the main on

Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (Ga. 1977).

Ward is distinguishable from the case at bar in that the

evidence had been presented at the subsequent proceeding

and that evidence “was essentially the same” as that

presented at the first trial where the jury did not recom-

mend a sentence of death. Jd. at 366. No evidence has

been adduced in the pending retrial of this cause and we

will not indulge the speculation urged as to the State’s or

defendant’s evidence at a future trial, this notwithstand-

ing the argument that the “notice” contains the same

general averments as the earlier “notice” and despite

relator’s statements in oral argument that the state in-

{

10 Section 565.014.3 provides that in the review of all cases in

which capital punishment is imposed this Court shall determine:

“. . . (2) Whether the evidence supports the jury’s or judge’s

finding of a statutory aggravating circumstances as enumerated

in section 565.012, and (3) Whether the sentence of death is

excessive or disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant.”

tended to present the same evidence at Bullington’s re-

trial. The evidence finally adduced depends upon the

witnesses not relator’s expressed intention. Any rule or

decisional pronouncement foreclosing on retrial additional

proof in mitigation or aggravation within the scope of

the notice, is quite unacceptable and we decline respond-

ent’s invitation to invoke such a rule as to a single phase

of the proof, i.e., aggravation. More importantly we

decline to follow the Georgia court in the construction of

Missouri’s death penalty statutes. Ward held that once

a jury in a capital case finds life imprisonment, a jury

sentence of death in any subsequent trial “is obviously

disproportionate.” Id. at 368. We are not persuaded to

this point of view for a number of reasons. As noted

above, not only may the proof vary in the second proceed-

ing, but the jury which deemed a life sentence appropri-

ate may well have been aberrant. It cannot be said that

the findings of the first improper jury sound with final-

ity as to aggravation or mitigation as our instructions

explicitly allow the juror’s individual values to be con-

sidered in the capital sentencing process. See MAI-CR

15.46. Also we have no record of the evidence from the

first presentence hearing and cannot say what error may

have occurred other than the fact the jury selection

process in Jackson County was constitutionally infirm.

Further, if such record were before us the fact remains

it would be impossible to predetermine the evidence

emerging in the new trial and we consider it improper

to predecide the result that should flow from the proof.

Finally, if defendant’s (respondent’s) argument were ac-

cepted that the first jury’s decision on punishment binds

any later jury, the argument could be made that if the

first jury decided on death as an appropriate sentence

the second jury’s consideration would be limited to only

that punishment. Needless to say defendant would

promptly abjure that result.

The rule is made absolute.

ALBERT L. RENDLEN

Judge

Morgan and Higgins, JJ., concur;

Donnelly, J., concurs in separate

concurring opinion filed; Welliver, J.,

concurs in result; Bardgett, C.J.,

dissents in separate dissenting opinion

filed; Seiler, J., dissents in separate

dissenting opinion filed.

[SEAL]

SUPREME COURT OF MISSOURI

EN BANC

No. 61499

STATE EX REL. GEORGE R. WESTFALL, RELATOR

V8.

HONORABLE DONALD L. MASON, Judge,

16th Judicial Circuit, RESPONDENT

CONCURRING OPINION—Filed Feb. 11, 1980

I would make a few observations on the issue of double

jeopardy.

My Brother Seiler would, for constitutional purposes,

and in a situation calling for a bifurcated proceeding,

relate the prohibition against double jeopardy not only

to the offense of capital murder of which Bullington was

convicted but also to the punishment imposed for the of-

fense of which he was convicted. He would reason that

Bullington can be retried for the offense of which he was

originally convicted because he waived the double jeop-

ardy protection by attacking the validity of his convic-

tion on Duren grounds—but Bullington cannot be sub-

jected to a punishment greater than that assessed at his

first trial because there was an implied acquittal of

punishment by death.

In order to embrace such a position, capital murder

must be treated as two offenses (capital murder where

death may be imposed and capital murder where impris-

onment for at least fifty years may be imposed) or it

must be assumed that there are two “degrees” of capital

murder (one sufficient to impose death and one not).

In my view, the discretion given by statute to assess

punishment at less than death does not support either

proposition. I find nothing in either constitution which

would require that we construe capital murder as consti-

tuting two offenses or as being divided into degrees. The

jury finding in October 1978 that Bullington should be

sentenced to life imprisonment without probation or

parole for not less than fifty years was not a determina-

tion that any element of the offense of capital murder

is lacking. The constraints of double jeopardy are not

involved here.

I would also make a few observations about imposition

of the death penalty under § 565.008, RSMo 1978.

Article I, § 21 of the Constitution of Missouri provides

that “excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment in-

ficted.” (Emphasis supplied.)

In my view, the taking of a life for a life is not always

cruel. History teaches us that it is not unusual.

The taking of the life of a human being by another

human being “unlawfully, willfully, knowingly, deliber-

ately, and with premeditation” (§ 565.001, RSMo 1978)

cannot be tolerated by organized society. Our Constitu-

tion promises that the “natural right to life” of all per-

sons will be protected. Mo. Const. art. I, § 2.

The ultimate question is: May that protection be

effected by the imposition of capital punishment? The

arguments which swirl about us as to the validity of

Suggested justifications for the imposition of death as

punishment (e.g., retribution and deterrence) make for

fascinating reading but miss the mark. See §. Donnelly,

A Theory of Justice, Judicial Methodology, and the Con-

stitutionality of Capital Punishment: Rawls, Dworkin,

and a Theory of Criminal Responsibility, 29 Syracuse

L. Rev. 1109 (1978); and R. Gardner, Capital Punish-

ment: The Philosophers and the Court, 29 Syracuse L.

Rev. 1175 (1978).

However, it is my personal belief that an organized

society that takes a life for a life as a part of its public

policy is mistaken in its belief that it is promoting its

100

own basic premise “that all government * * * is insti-

tuted solely for the good of the whole.” Mo. Const. art.

a, 4.

Although I am compelled to concur, it is my view that

taking the life a human being “willfully, knowingly,

deliberately, and with premeditation” (albeit “lawfully’)

by an organized society is socially amoral. I think it will

be self-destructive and that inevitably it will lower the

quality of society and will be detrimental, if not devas-

tating, to “the good of the whole.” In warfare a fragile

line sometimes exists between amoral killing and killing

regarded as moral by world society. Here I think the

line is not fragile but plain. Establishment of a studied

public policy by which a whole community intentionally

crosses the line into what I view as amoral killing, even

though legal, represents a risk too great to itself for that

community to assume.

In my view, banishment for fifty years (§ 565.008,

RSMo 1978), with no concern for the probable fiction

of rehabilitation, is an acceptable alternative. It would

effectually excise the transgressor from our society with-

out debilitating our society’s collective concept of decency.

However, I have no authority to impose such views on

the people of Missouri. To borrow from Mr. Justice

Frankfurter: “As a member of this Court I am not

justified in writing my private notions of policy into the

Constitution, no matter how deeply I may cherish them

or how mischievous I may deem their disregard.” West

Virginia State Board of Education v. Barnette, 319 U.S.

624, 647 (1943) (Frankfurter, J., dissenting).

I have spoken of the death penalty in terms of public

policy. It should be noted that constitutional concerns

must be addressed by this Court, under authority of

§ 565.014, RSMo 1978, in each case where death is im-

posed as punishment.

I concur.

ROBERT T. DONNELLY

Judge

101

[SEAL]

SUPREME COURT OF MISSOURI

EN BANC

No. 61499

STATE EX REL. GEORGE R. WESTFALL, RELATOR

v8.

HONORABLE DONALD L. MASON,

Judge, 16th Judicial Circuit, RESPONDENT

DISSENTING OPINION—Filed Feb. 11, 1980

I dissent and concur in the dissenting opinion of Seiler,

J. However, I wish to address the nature of our new

capital-murder statute because I believe it differs in a

substantive way from former murder statutes which per-

mitted the death penalty as one of the punishments and

thereby calls for different treatment by this Court.

Capital murder is not treated as two offenses. Nor do

I think the dissent of Seiler, J., suggests that it is two

offenses.

The old first-degree-murder Statute, § 559.010, RSMo

1969, repealed Laws of Mo. 1975, p. 408, § A (herein-

after “old capital murder law”) provided:

559.010. Murder in the first degree

Every murder which shall be committed by means

of poison, or by lying in wait, or by any other kind

of willful, deliberate and premeditated killing, and

every homicide which shall be committed in the per-

petration or attempt to perpetrate any arson, rape,

robbery, burgl ayhem, shall be deemed murder

in the first degree. mphasis added. )

bed

102

The punishment was to be arrived at and assessed in

accordance with § 559.030, RSMo 1969, repealed Laws of

Mo. 1975, p. 408, § A, which provided:

559.030. Trials for murder, verdict and punishment

Upon the trial of an indictment for murder in the

first degree, the jury must in

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