# Appendix — Bullington v. Missouri

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 430

## Text

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: 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

8

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:

9

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 ;

10
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

11

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

12
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

13

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

14

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:

15
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.

16

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]

17

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

18
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

19

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,

20

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.

21
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

22
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

23

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-

24

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-

25

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-

26

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.

27
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

28

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.

29

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,

30

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-

31

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

32

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.

33

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-

34

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.

35

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

36

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

37

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

38

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

39

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,

40

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.

41

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,

42

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.

43

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

44

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

45

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-

46

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)

47

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).

48

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-

49

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)

50
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.

51

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.

52

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

53

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-

54

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

55
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)

56

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

57

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

58

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

59

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:

=

60

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)

61

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

62

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

63

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

64

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?

65

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.

66

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-

67

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

68

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

69

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.

70

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

71

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.

72
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.

73

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.

74
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

75

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.

76

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.

78

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

79

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.

80
[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

I

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).

81

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.

IT

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.

82

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

83

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).

84

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.”

85

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,”

86

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
an

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0005%3A2. Public record. Not legal advice.