Petition — Mercer v. Missouri

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 198:

GEORGE MERCER, Petitioner

vs.

STATE OF MISSOURI, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

Cenobio Lozano, Jr.

Attorney for Petitioner

3001 N. 291 Highway

P.O. Box 452

Harrisonville, Missouri 64701

Phone: (816) 884-5521

Cases CA ꝶ ).. 4 0 6 „ 0 11

Petition for Writ of Certior arri: 41% owe eS

The Opinion... . 2 eee eee eeereereese 1

Ar „„ „ „ „ „6 1

Questions Presented for Reviee + ++es 1

Constitutional and Statutory Provisions Involved . . 2

Statement of the asses 2 3

Reasons for Granting the ritt 4

%% „„ 5

Conclusion „ 6 „%%% % % % „„ „ „ „6 24

Certificate of Serviſtill e 25

Appendix

A. Missouri Revised Statu tes 26

B. Georgia Statute (Section 27.2534.1(b)(7) .... 31

c. Supreme Court Opinions ....- ++ ee 32

D. Notice Denying Motion for Rehearing ...... + 7f

E. Voir Dire Examinations .....+++e+-s 4 0 „ @

F. Jury Instructions: (Jury wows « —

Circunstance s. 0 . 81

(Aggravating Circus tances Instruction 82

(Mitigating Circumstances Instruction 83

G. Amendments, U.S. Constitution 84

CASES CITED

ADAMS V. TEXAS, 448 U.S. 38 (1980).

ADAMS v. WASHINGTON, 76 Wash.2d 650, 458 P. 2d 558 (1969), rev'd, 403 U.S. 947

(1971).

AIKEN V. WASHINGTON, WHEAT V. WASHINGTON, 75 Wash.2d 421, 452 P.2d 232,

rev'd, 403 U.S. 946 (1971).

ARNOLD V. STATE, 236 Ga. 534 (1976).

BALLEW V. GBORGIA, 435 U.S. 223 (1978).

BOULDEN v. HOLMAN, 394 U.S. 478 (1969).

BOUNDS v. SMITH, 430 U.S. 817 (1977).

DAVIS v. GEORGIA, 429 U.S. 122 (1976).

DUNCAN V. LOUISIANA, 391 U.S. 145 (1968).

DUREN V. MISSOURI, 439 U.S. 357 (1979).

FUNICELLO v. NEW JERSEY, 52 N. J. 263, 245 A. 2d 181 (1908), rev'd,

403 U.S. 948 (1971).

GODFREY V. GEORGIA, 446 U.S. 420 (1980).

GREGG v. GEORGIA, 428 U.S. 153 (1976).

HARRIS V. TEXAS, 457 S.W.2d 903 (Tex. Cr. App. 1970), rev'd, 403 U.S.

947 (1971).

HERNANDEZ V. TEXAS, 347 U.S. 475 (1954).

HOLTON V. STATE, 243 Ga. 312, 253 S.E.2d 736, cert. denied, 100 S.Ct.

263 (1979).

HOVEY V. SUPERIOR COURT, 28 Cal.3d 1 (1980).

JAGGERS V. KENTUCKY, 439 S.W.2d 580 (Ky. Ct. App. 1968), rev'd, 403 U.S.

946 (1971).

LABAT V. BENNET, 365 F.2d 698 (Sth Cir. 1966).

LADETTO v. MASSACHUSETTS, 536 Mass. 541, 254 N.E.2d 415 (1969), rev'd,

403 U.S. 947 (1971).

MAXWELL V. BISHOP, 398 U.S. 262 (1970).

v. OHIO, ohio App.2d__, N. E. 24 (1969), rev'd,

403 U.S. 947 T1971).

PEOPLE V. ATTICA BROTHERS, 359 N.Y.S.2d 669 (N.Y. Sup. Ct. 1974).

PEOPLE V. WASHINGTON, 71 Cal.2d 1061 (1969).

PETERS V. KIFF, 407 U.S. 493 (1972).

SCHOWGUROW v. STATE, 213 A. 2d 475 (Md. Ct. App. 1965).

SEGURA V. PATTERSON, 402 F.2d 249 (10th Cir. 1971), rev'd, 403 U.S. 946 (1971).

SIMMONS V. STATE, 188 So.2d 442 (Fla. Ct. App. 1966).

SPECK v. ILLINOIS, 41 111.2d 177, 242 N.E.2d 208 (1968), rev'd, 403 U.S.

946 (1971).

STATE V. MADISON, 213 A.2d 880 (Md. Ct. App. 1965).

STEPHENS v. ZANT, __ F.2d ___ (11/26/78).

STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931).

TAYLOR V. LOUISIANA, 419 U.S. 522 (1975).

THIEL v. SOUTHERN PACIFIC ., 328U.S. 217 (1946).

TURNER V. TEXAS, 462 S.W.2d 9 (Tex. Cr. App. 1969), rev'd, 403 U.S. 947

(1971).

WILLTAMS V. FLORIDA, 399 U.S. 78 (1970).

WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968).

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

Petitioner,

— — — — —— —

Respondent .

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

TO: THE HONORABLE, THE CHIEF JUSTICE and

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES

George Mercer, the petitioner herein, prays that a Writ of Certiorari

issue to review the judgment and opinions of the Supreme Court of the State

of Missouri entered in this proceeding on May 11, 1981. Petitioner's timely

Motion for Rehearing was denied on June 4, 1981.

OPINIONS BELOW

The opinions of the Supreme Court of Missouri, not yet reported, appear

in the appendix. Included as part of the appendix to this Petition are the

majority and dissenting opinions of the Supreme Court of Missouri entered in

this proceeding on May 11, 1981 and the Notice advising of the entry of the

Order overruling petitioner's Motion for Rehearing on que 4, 1981.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. Section

1257(3).

QUESTIONS PRESENTED FOR REVIEW

This cause presents the following questions of interest and importance

which warrant and necessitate the attention of this Court, to-wit:

(1) Were prospective jurors expressing hesitancy or conscientious

scruples against the imposition of capital punishment excluded from serving

on the jury in violation of the Sixth and Fourteenth Amendments to the United

States Constitution as interpreted in Witherspoon v. Illinois, 391 U.S. 510

(1968)?

(2) Did the exclusion from jury service at the guilt stage of a

bifurcated trial of prospective jurors unwilling to consider the death

penalty deny petitioner's right to trial by a representative jury drawn

from a fair cross-section of the commmity guaranteed by the Sixth

Amendment to the United States Constitution?

(3) Did the Supreme Court of Missouri adopt such a vague and broad

construction of the statutory aggravating circumstances charged in affir-

ming a sentence of death imposed upon petitioner by a jury which found, as

instructed by the trial court, that

[Petitioner], as an oS or —_— of [another] and at his

direction murdered [

and that

The murder . . . involved depravity of mind and that as a

result thereof it was outrageously or wantonly vile and inhuman,

as to violate the Eighth and Fourteenth Amendments to the United States

Constitution as construed by this Court in Godfrey v. Georgia, 446 U.S. 420

(1980)?

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth, Eighth and Fourteenth Amendments to the

Constitution of the United States.

Missouri statutory provisions involved: Sections 565.001, 565.006,

565.008, 565.012 and especially subsections .2(6) and .2(7) thereof, and

565.014. Missouri Revised Statutes (1978).

Georgia Statutory provision involved: Section 27.2534.1(b)(7). Georgia

Code Annotated (1977).

Missouri Constitution of 1945, Article I, Section 18 (a).

STATBIENT OF THE CASE

On October 23, 1978, an Information was filed in the Circuit Court of

Cass County, State of Missouri, charging the petitioner herein with Capital

Murder, a crime punishable by death or life imprisonment. On July 5, 1979,

the State of Missouri filed a Notice of intent to seek the death penalty upon

the following grounds as aggravating circumstances: that petitioner caused

or directed another to commit capital murder or "committed capital murder as

an agent or employee of another," and that "the offense was outrageously or

wantonly vile, horrible or inhuman in that it involved torture, or depravity

of mind."

After a change of venue, petitioner was found guilty by a Springfield,

Greene County, Missouri jury on September 15, 1979. On the same day, the

second stage of the bifurcated trial was commenced to consider punishment on

the capital murder charge. The jury was instructed that pursuant to Section

565.012.2, R.S.Mo., they could return a sentence of deatn only if the State

proved the existence of at least one of two alleged aggravating circumstances

beyond a reasonable doubt. Neither party offered any evidence and the jury,

after argument and due deliberation, found, as instructed by the trial court,

that the defendant, as an agent or employee of Stephen Gardner and at his

direction, murdered Karen Keeton," and that "the murder of Karen Keeton in-

volved depravity of mind and that as a result thereof it was outrageously or

wantonly vile and inhuman. ihe jury fixed petitioner's punishment at death.

The Missouri Supreme Court suspended execution of the sentence pending the

within proceedings.

Petitioner was convicted on evidence presented that the victim was

brought to him as a birthday present“ at his home by petitioner's co-defen-

dant; that thereafter petitioner tapped the victim on the head with a sawed-

off shotgun and took her to an upstairs bedroom of his home where, petitioner,

followed later by two other males, engaged in sexual activities with her;

that petitioner's co-defendant told him to "Kill the bitch’ before leaving

the home; and that sometime later, petitioner strangled the victim with his

hands.

Petitioner thereafter filed a timely Motion for New Trial which was over-

ruled by the trial court on November 9, 1979. Petitioner then filed a timely

Notice of Appeal in which appeal the Missouri Supreme Court, on May 11, 1981,

in a 5 to 2 decision, affirmed petitioner's conviction and sentence of death.

Petitioner's timely filed Motion for Rehearing was denied on June 4, 1981.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to consider:

1. Whether petitioner's Sixth and Fourteenth Amendment rights were

violated by the exclusion for cause of prospective jurors who expressed hesi-

tancy or conscientious scruples against the infliction of capital punishment.

2. Whether the cross-section requirement of the Sixth Amendment was

violated by the exclusion of prospective jurors unwilling to consider the

death penalty from the guilt stage of petitioner's bifurcated trial.

3. Whether the Missouri Supreme Court construed the Section 565.012.2(6)

aggravating circumstance so broadly in affirming petitioner's death sentence

as to violate petitioner's Eighth and Fourteenth Amendment right to protec-

tion of law against cruel, arbitrary and capricious sentencing procedures.

4. Whether the Missouri Supreme Court construed the Section 565.012.2(7)

aggravating circumstance so broadly in affirming petitioner's sentence of

death and in the same manner this Court held to violate the Eighth and Four-

teenth Amendments in Godfrey v. Georgia, 446 U.S. 420 (1980).

5. Whether the statutory death sentence review conducted by the Supreme

Court of Missouri in this case was so superficial as to be violative of

petitioner's rights under the Fourteenth Amendment.

ARGUMENT

THE EXCLUSION FROM JURY SERVICE OF PROSPECTIVE JURORS VIOLATED THE

HOLDING IN WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968).

Petitioner was sentenced to death by a jury from which at least five

prospective jurors were excluded on the basis of general and ambiguous re-

sponses given to the State of Missouri's death-qualifying questions. The

trial court stated that it would recognize the test for qualifying a juror

on the death penalty set out in Davis v. Georgia, 429 U.S. 122 (1976). The

prosecution generally inquired as follows: If, during the trial of this case

the facts and circumstances were developed that in fact the jury could consider

capital punishment, would you, as a juror, consider capital punishment as a

possible alternative?" To this question, venireman Bumgarmer responded, "'l

don't think so." This answer resulted in the following:

Are you norally and religiously opposed to capital punishment?

Yes.

Q. And you feel you couldn't bring back a sentence of--the death

sentence under any circumstances?

A. I don't think so.

Q. So regardless of how severe and aggravated the circumstances are,

you don't feel that you could bring back a death penalty?

A. I don't believe I could.

No further questions were asked and the State's challenge for cause was sus-

tained by the trial court over defense objections that his exclusion would violate

petitioner's right under the Sixth Amendment to the United States Constitution

to a representative jury drawn from a cross section of the commmity. The

assignment of error here alleged was first raised by petitioner in his Motion

for New Trial.

The Missouri Supreme Court, in affirming petitioner's sentence of death,

held that Mr. Bumgarner's exclusion from jury service did not violate the consti-

tutional principles of Witherspoon because (1) the phrase, "I don't think so",

is “common vernacular to express a negative"; (2) the trial court understood the

limited excuse; (3) the trial court possessed the ability to observe the tenor

of the questioning; and (4) lay persons are frequently reluctant to communicate

their deep-seated opinions in a cogent and emphatic manner. In light of the

foregoing, the Missouri Supreme Court held that each of the five excused venire

persons made it “unmistakably clear“ that they would not impose the death penalty

under any circumstances and therefore the requirements of Witherspoon v. Illinois,

supra, were met. This conclusion by the Supreme Court of Missouri is erroneous

and not in accord with this Court's decisions.

In Witherspoon v. Illinois, 391 U.S. 510 (1968) defendant was tried pur-

suant to a statute which vested the jury with discretion as to vhother a defen-

dant convicted of first degree murder should be sentenced to death or life im-

prisonment. At the time of the defendant's trial, the applicable Illinois

statute permitted a challenge for cause of any juror who stated that he had

conscientious scruples against capital punishment or that he opposed it. The

trial court excluded 47 veniremen based on their views toward the death penalty,

including 39 who were not questioned as to whether their views would invariably

compel them to vote against the death penalty. In reversing the death penalty

imposed by this jury, the Supreme Court held that the death penalty can never

be carried out

. if the jury that imposed or recommended it was chosen by

excluding veniremen for cause simply because they voiced general

objections to the death penalty or expressed conscientious or

religious scruples against its infliction. No defendant can

constitutionally be put to death at the hands of a tribunal so

selected . 391 U.S. at 522-23.

In a footnote, the court amplified this holding by stating that veniremen

cannot be excluded for cause simply because they indicate that

there are some kinds of cases in which they would refuse to re-

commend eapital shment. And a prospective juror cannot be

expected to say advance of trial whether he would in fact

vote for the extreme penalty in the case before him. The most

that can be demanded of a venireman in this regard is that he be

willing to consider all of the penalties provi by state law,

and that he not be irrevocably committed, before the trial has

begun, to vote against the penalty of death re rdless of the

facts and circumstances that might emerge in course of the

proceedings. If the voir dire testimony in a given case indi-

cates that veniremen were excluded on any b r basis than

this, the death sentence cannot be carried out even if applicable

statutory or case law in the relevant jurisdiction would appear

2a only a narrower ground of exclusion. 391 U.S. at

N. *

This Court went on to clarify the intended scope of this language by adding

that its decision has no bearing on a State's power to exclude veniremen who

make it

„ .unmistakably clear (1) that they would automatically vote against

the imposition of capital punishment without regard to any evidence

that might be developed at the trial of the case before them, or (2)

that their attitude toward the death penalty would prevent them from

making an impartial decision as to the defendant's guilt. 391 U.S. at

522-23 n. 21.

Moreover, it is clear that in deciding whether a venireman has been properly

excluded, any ambiguity which casts doubt upon whether he has made his views m-

mistakably clear must be resolved against exclusion. While reversing for a

violation of Witherspoon, the Fifth Circuit noted and applied this principle:

The Supreme Court further implied that doubts concerning the

ability of a venireman to subordinate his personal views to

his oath as a juror to obey the law of the state should be

resolved against exclusion, stating in footnote 9, on page

515-510 of the opinion, 88 S.Ct. on page 1774:

"Unless a venireman states unambiguously that

he would automatically vote against the imposition

of capital punishment no matter what the trial

might reveal, it simply cannot be assumed that

this is his position.” (Emphasis added.) Marion

v. Beto, 434 F.2d 29, 31 (Sth Cir. 1970).

In footnote 4 to the opinion, the Fifth Circuit noted that It Ihese words

were emphatically repeated” in Boulden v. Holman, 394 U.S. 478 (1969) and Max-

well v. Bishop, 398 U.S. 262 (1970).

In Boulden v. Holman, 394 U.S. 478 (1969) and Maxwell v. Bishop, 398 U.S.

262 (1970) the Court applied Witherspoon to disallow exclusion of veniremen

who said they did not "believe in capital punishment" or expressed conscien-

tious scruples", or "fixed opinions“ against its infliction but did not unequivo-

cally state that they would refuse to vote for its imposition in any case. In

Boulden, the Court spelled out the basis for Witherspoon's application in these

cases:

{I]t is entirely possible that a person who has "a fixed opinion

against“ or who does not “believe in“ capital A2 might

i

law - to follow conscientiously the instructions of a trial

and to consider fairly the imposition of the death sentence a

particular case. 394 U.S. at 483-84.

In Maxwell, the Court considered a transcript including the following ex-

changes with three veniremen:

. If you were convinced beyond a reasonable doubt at the end of

this trial that the defendant was guilty and that his actions had

been so shocking that they would merit the death penalty do have

any conscientious es about capital punishment that might prevent

you from returning a verdict?"

"A, I think I do." (Emphasis supplied.)

"Q. Do 15 entertain any conscientious scruples about imposing

the death penalty?“

"A, Yes, I am afraid I do.“

In remanding the case to the state courts, this Court stated that it

appears "that the sentence of death imposed upon the petitioner cannot stand

under Witherspoon v. Illinois." Id. at 266.

Applying the holding of Boulden and Maxwell, the Court reversed several

cases in which excluded veniremen stated they did not believe in the death

penalty but did not unequivocally state that they would absolutely refuse to

vote for its imposition in any case. Ladetto v. Massachusetts, 536 Mass. 541,

254 N.E.2d 415 (1969) rev'd 403 U.S. 947 (1971) ("strong feelings against the

death penalty"). Turner v. Texas, 462 S. M. 2d 9 (Tex. Cr. App. 1969) rev'd

403 U.S. 947 (1971) ("just don't believe“ in the death penalty). And the Court

made it clear that veniremen cannot be excluded where they gave an ambiguous

response in reply to a question relating to their capability to impose the death

penalty. Segura ». Patterson, 402 F.2d 249 (10th Cir. 1971) rev'd 4035 U.S.

946 (1971) ("I don't think I can bring in the death penalty"); punicello v. New

Jersey, 52 N. J. 263, 245 A. 2d 181 (1968) rev'd 403 U.S. 948 (1971) ("I won't

think so“; “unsure” as to capability of voting for death penalty). Pemberton v.

Ohio, ___ Ohio p. 2d N. E. 2d (1969) rev'd 403 U.S. 947 (1971)

(venireman "would try“ to discharge duty; "I don't think I can vote for death

penalty"; opposed to capital punishment in "practically" all cases).

The Missouri Supreme Court misconstrued this Court's decision in Adams v.

Texas, b. 8s. 55 L.Ed.2d 581 (1980) which it erroneously cited as author-

ity supportive of its view that Mr. Bumgamer and the four other venire persons

responses to Missouri's death-qualifying questions made it “unmistakably clear"

that their exclusion from jury service did not violate the Witherspoon holdings.

This Court in Adams identified seven prospective jurors as having been um-

«.. constitutionally excluded, 65 L.Ed. 2d at 592, n.7 § n.8, but the voir dire exam-

ination of these prospective jurors was not described in any detail. Two

such persons were singled out by this Court, George Ferguson and Dorothy

G. Riddle, and their detailed responses are extremely significant to the

instant case.

Mr. Ferguson is identified in the Adams opinion as one of those venire

members who were unconstitutionally excluded because they "stated that they

would be ‘affected’ by the possibility of the death penalty, but who apparently

meant only that the potentially lethal consequences of their decision would

invest their deliberations with greater seriousness and gravity or would in-

volve them emotionally.” 65 L.Ed.2d 592. Although this is an accurate des-

cription of some of his statements, Ferguson also said the following when

initially asked about his views on capital punishment:

Q. (By the prosecutor) All right, Do I take it from that you're

opposed to capital punishment?

tes, I an,

And have you been opposed to capital punishment most of your life?

Yes, I have.

And I take it you have strong feelings on that point, don't you?

> o> PD „

Well, pretty strong. Of course, you know, someone -- if in self

defense, I wouldn't have any feelings about it, I would do it, but

otherwise, I do.

Q. I'm talking about the legalized execution. I'm talking about legalized --

in other words, placing someone in an electric chair and running elec-

tricity through his body.

A. I don't think I want to do that.

Q. And I take it from what you have said, that you personally just flat,

because of the way you feel, could not be involved in that yourself?

A. It would be too hard for me to do. Now, i'm not going to say that 1

might not see enough that would convince me, but at that point, I would

say it would be almost impossible that I should say, kill somebody.

Q. And so -- well, your feelings on the subject, I take it, are strong

enough that you have grave doubts in your mind that you would never vote

for death?

Q.

A.

I believe so.

All right. Do you think there is conceivably ever a case that you

personally would ever take pen in hand and sign your name to a death

warrant?

I don't believe so.

You don't think you could ever do that?

I don't believe so.

Are you then really flat opposed to the death penalty to the extent

where you would automatically have to vote against it in order to be

straight with your conscious?

. With my conscious, yes.

You would have to automatically vote against that?

Yes.

Tr. at 614-16 (emphasis added)

response to subsequent questioning by the prosecutor, Ferguson reverted

to the more equivocal language of his earlier answers:

A. But as far as voting for the death penalty, I wouldn't want to do that.

Tr. at 618.

Q. . .From what you have told me earlier, I got the distinct impression

if you were forced to answer those questions, if you were forced to

deliberate on death, that you personally just could never be a person

who could do that?

A. It would be hard.

Q. And I know what you mean when you say it would be hard, but I actually

have to carry it a step further and just ask you; you had said earlier

you would automatically have to vote against death and I take it that's

the way you honestly feel?

A. At this point, I think it is.

Tr. 619-20.

A. I think it would be troublesome to me.

Q. And you're afraid it would affect you to the extent that you could not

in good conscious ever consider the sentence of death, whether you

arrived at it directly or indirectly?

A. 1 don't believe I could.

Tr. 621.

The prosecution moved for exclusion for cause under Witherspoon and under

the oath, 12.31," which was sustained without delineation of the ground for

exclusion.

Mrs. Dorothy G. Riddle is identified in the Adams opinion as one of

those venire members who were unconstitutionally excluded "only because they

were unable positively to state whether or not their deliberations would in

any way be affected. 65 L.Ed.2d at 592. While this is an accurate descrip-

tion of one of Riddle's statements, she also said the following:

Q. (By the prosecutor) You tell me how you feel at this point.

A. Well, 1 guess I feel that I do believe in it.

Q. Sure.

A. But of course, the way I feel right now -- it would be a big --

it would be hard for me to do it, and then I wonder how I would

feel afterwards.

Q. Some people it would just -- some people it would just it would

just violate their conscience.

A. Uh huh.

Q. And this we don't want to do, and that would be unfair to you and it

would be unfair to those of us who participated in the case, certainly

unfair to the Defendant.

So, 1 just -- I will ask you the question again. Do you feel like you

could personally serve on this jury, and if the facts and circumstances

called for it, make decisions, personally make decisions that would

result in this man's death?

A. I would just say no.

Tr. 4928-29 (emphasis added).

Mr. Bumgarner's responses do not contain the degree of definiteness found

in those of Mr. Ferguson and Mrs. Riddle which this Court held to lack that degree

of clarity required constitutionally to support the exclusion of a prospective

juror from service in a capital case. The only ground for proper exclusion is

an “unmistakably clear“ statement that the venireman will automatically vote

against the death penalty. Where the statement can have any other connotation,

or where it is not obvious that the venireman understood the questions asked

about his scruples in relation to his duty to consider all penalties, any ex-

clusicn is improper.

Missouri Supreme Court Judge Seiler, in his dissenting opinion filed in

this case, observed that,

Bumgamer's view on the subject was left hanging in the air,

unresolved. The Witherspoon test was not satisfied as to

Bumgarner. If the prosecutor does not get an unequi vocal

response, then he is not entitled to have the venireman dis-

missed for cause. Cf. Adams v. Texas, 448 U.S. 38. 100

5. Ct. 2521, 2528-29 (1980) in which the Supreme Court said:

either nervousness, emotional involvement, nor

inability to or confirm any effect whatsoever

chat being presented with the option to give death

venalty would have on the prospective juror! is

equivalent to an unwillingness or an inability on

the part of the jurors to follow the court's instruc-

tions and obey their oaths, regardless of their feelings

about the death penalty.“ (emphasis supplied’.

{W)hile I would agree that when someone says 1 don't think so”

he may intend to express the negative, he may also mean that he

is not sure. At best, it is equivocal, ambiguous, and uncertain.

Bungarner did not say that he would not be able to decide the

issues on the basis of the law and evidence. We are talking

about taking defendant's life by judicial order. In such cir-

cumstances, it is not the proper duty or function of the trial

court or this court to interpret“ such a phrase by resolving

the doubt in favor of the state. . .and the United States Supreme

Court has declared that

"Unless a venireman states unambi ly that he would

automatically vote against imposition of capital

punishment. . .it simply cannot be assumed that that

is his position." (emphasis supplied) M U.S. at 516

n.9.

It is clear that the principles of Witherspoon cannot be avoided by the

good intentions of the trial judge or the lack of specificity in the venire-

men's statements. Where there has been an improper exclusion, the judgment

cannot be preserved merely because the “totality of the record" or the voir dire

examination as a whole did not "violate the spirit of Witherspoon." Speck v.

Illinois, 41 111. 2d 177, 242 N.E.2d 208 (1968) rev'd. 403 U.S. 946 (1971);

Jaggers v. Kentucky, 439 S.W.2d 580 Gy. Ct. p. 1968) rev'd. 403 U.S. 946 (1971);

Harris v. Texas, 457 S.W.2d 903 (Tex.Cr.App. 1970) rev'd. 403 U.S. 947 (1971);

Adams v. Washington, 76 Wash.2d 650, 458 P. 2d 558 (1969) rev'd. 403 U.S. 947 (1971).

Likewise, the fact that the trial judge was able to see and hear veniremen does

not prevent a reversal where the veniremen's responses on the cold record

are equivocal. Aiken v. Washington, Wheat v. Washington, 75 Wash.2d 421, 452

P.2d 232 rev'd. 403 U.S. 946 (1971).

Mr. Bumgarner and four other prospective jurors (Rosalie M. DeLange,

Elston Dalton, Juanity Bishop and Priscilla Choate) were improperly excluded

from service in petitioner's jury in violation of the holdings in Witherspoon

v. Illinois, supra. (The complete text of their voir dire examinations is in-

cluded in the Appendix). Petitioner's sentence of death and the Missouri

Supreme Court's decision permitting prospective jurors to be excluded from ser-

vice in capital cases on a broader basis than that allowed by Witherspoon Cannot

be permitted to stand.

Where the question of life or death is and will continue to be vested in

the discretion of jurors selected in capital cases in the State of Missouri,

this Court should grant certiorari to confine Missouri's capital penalty scheme

to those bounds established in the Sixth, Eighth and Fourteenth Amendments to

the United States Constitution as construed by this Court in Witherspoon and

its progeny.

EXCLUSION OF PROSPECTIVE JURORS FROM SERVING AT THE GUILT STAGE OF PETI-

TIONER'’S BIFURCATED TRIAL BECAUSE OF THEIR UNWILLINGNESS TO CONSIDER THE DEATH

PENALTY VIOLATED PETITIONER'S RIGHT UNDER THE SIXTH AMENDMENT TO THE UNITED

STATES CONSTITUTION TO A TRIAL BY A JURY REPRESENTATIVE OF A FAIR CROSS-SECTION

OF THE COMMUNITY.

Fifteen prospective jurors, including the five persons petitioner herein

contends were improperly excluded under Witherspoon, were successfully chal-

lenged for cause on the basis of their responses to the prosecution's death-

qualifying questions during voir dire. We submit that such prospective jurors

constitute a "cognizable class" exclusion of which is a violation of the Sixth

Amendment to the United States Constitution. This issue was raised by petitioner

during voir dire.

In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court held that

the Sixth Amendment right to a jury trial was applicable to the states through

the due process clause of the Fourteenth Amendment. Since Duncan, it has become

clear that a defendant is guaranteed an impartial jury drawn from a repre-

sentative cross-section of the commmity. (Duren v. Missouri, 439 U.S. 357

(1979); Ballew v. Georgia, 435 U.S. 223, 236-237 (1978); Taylor v. Louisiana,

419 U.S. 522 (1975); Peters v. Kiff, 407 U.S. 493, 502-504 (1972); Williams

v. Florida, 399 U.S. 78, 110 (1970)).

In Taylor v. Louisiana, supra, the court held that under the Sixth Amend-

ment a male criminal defendant had standing to challenge the exclusion of

women from his trial jury, and that the exclusion was improper even in the

absence of any specific showing of prejudice, because the removal of such a

large and distinctive group in the population "deprived him of the kind of

factfinder to which he was constitutionally entitled." (Id., at 526.)

"We accept the fair-cross-section requirement as fundamental

to the jury trial guaranteed by the Sixth Amendmert and are convinced

that the requirement has solid foundation. The purpose of à jury is

to guard against the exercise of arbitrary power -- to make available

the commonsense judgment of the commmity as a hedge against the over-

zealous or mist prosecutor and in preference to the professional

or perhaps overconditioned or biased response of a judge. (Citation. }

This prophylactic vehicle is not provided if the jury pool is made up

of only ee of the populace or if large, distinctive

groups are excl from the 1. Commnity participation in the

administration of the crim law, moreover, is not only consistent

with our democratic heritage but is also critical to public confidence

in the fairness of the criminal justice system. Restricting jury service

to only special groups or excluding identifiable segments playing major

roles in the commmity cannot be squared with the constitutional concept

of jury trial. . . (Id., at 530.)

The fair cross-section requirement extends beyond race discrimination and

prohibits all exclusions of identifiable segments of the commmity. In Hernandez

v. Texas, 347 U.S. 475 (1954), (a race discrimination case) the Supreme Court

explained: "Throughout our history differences in race and color have defined

easily identifiable groups which have at times required the aid of the courts

in securing equal treatment under the laws. . . ." (347 U.S. at 478.) But, the

court added, racial groups are not the only ones at issue: "Whether such a

{cognizable} group exists within a commmity is a question of fact.“ (Ibid.)

In Peters v. Kiff, supra, the proposition that improper exclusion raises

constitutional questions only when the gravamen of the exclusion is racial was

again firmly rejected. The petitioner in Peters, a white man, challenged the

systematic exclusion of blacks from his grand and petit juries. The plurality

of the court recognized that the damage caused by such exclusionary practices

is not restricted to particular issues or to a particular race:

"Moreover, we are unwilling to make the assumption that the

exclusion of Negroes has relevance only for issues involving race.

When any large and identifiable segment of the commmity is excluded

from jury service, the effect is to remove from the jury room qual -

ities of human nature and varities of human experience, the range of

which is unknown and perhaps unknowable. It is not necessary to

assume that the excluded group will consistently vote as a class in

order to conclude,as we do, that their exclusion deprives the jury

of perspective on human events that may have unsuspected importance

in any case that may be presented.“ (407 U.S. at 503-504, opn. of

Mr. Justice Marshall.)

Considerations similar to those mentioned regarding race and sex have led

state and federal courts to condemn systematic exclusion of daily wage eamers,

Thiel v. Southern Pacific Co., 328 U.S. 217, 222-224 (1946); Labat v. Bennett,

365 F.2d 698 (Sth Cir. 1966) common laborers, Simmons v. State, 188 So.2d 442

(Fla.Ct.App. 1966); students, People v. Attica Brothers ,359 N.Y.S.Zd 669 (N.Y.

Sup.Ct. 1974); and atheists and agnostics, Schowgurow v. State, 213 A. 2d 475

Ou. ct. p. 1965); State v. Madison, 213 A. 2d 880 Od. Ct. p. 1965).

mis Court in Duren v. Missouri, 439 U. S. 357, 364 (1979) held that,

"In order to establish a prima facie violation of the fair-cross-

section requirement, the defendant must show (1) that the group

alleged to be excluded is a ‘distinctive’ group in the commmity ;

(2) that the representation of this group venires from which

juries are selected is not fair and reasonable in relation to the

number of such persons in the commmity; and (3) that this under-

representation is due to systematic exclusion of the group in the

jury-selection process."

There is no requirement that the defendant be a member of the excluded

group, or that he establish that he was in any special way prejudiced by the

exclusion. Moreover, the exclusion must be systematic“ only in the sense that

it is “inherent in the particular jury-selection process utilized " (Id., at

366), i.e.,that it was "due to the system by which juries were selected,"

(Id., at 367, emphasis in original) and not the product of chance. There is

no need to show that the group in question was intentionally excluded or purpose-

fully excluded:

„, . in Sixth Amendment fair-cross-section cases, systematic

disproportion itself demonstrates an infringement on the defen-

dant's interest in a jury chosen from a fair.commmity cross

section. The only 1 is whether there is adequate

justification for this inf t.“ (Id., at 368, n. 26.)

The facts necessary to affirmatively resolve the quest ion in the present

case of whether a particular group is cognizable were presented to the California

Supreme Court in Hovey v. Superior Court, 28 Cal.3d 1 (1980) which exhaus-

tively reviewed studies detailing the characteristics of potential jurors

who are excluded from capital cases because of their unwillingness to con-

sider imposing the death penalty. The court discussed four separate attitud-

inal studies, all of which show that the excluded opponents of the death

penalty have a distinctive set of attitudes on issues concerning criminal

justice, an outlook that sets them apart from the rest of the population.

_Hovey, at 43-54. me court described the findings of each of these studies,

ending with the most recent -- the Ellsworth Attitude Survey -- about which

the court stated: ‘The methodology of this survey was universally praised by

the experts lon both sides] below." Id., at 50.

The attitudes studies in the Hovey survey concerned such issues as the

. defense of insanity, the right of a defendant to remain silent, and the rela-

tive trustworthiness of the attorneys for the defense and the prosecution. The

court paid particular attention to evidence -- including experimental data in

addition to the attitudinal surveys -- that the excluded jurors have a different

concept of “reasonable doubt" than the remainder of the jury pool. Id., at 57

59. Similarly, the court described experimental data that shows the excluded

class of jurors to be relatively more likely to believe defense witnesses and

relatively less likely to accept prosecution testimony. Id., at 59-60.

The court also reviewed a long series of convict ion-proneness“ studies,

(those measuring differences in the voting behavior of death-qualified and ex-

Cluded jurors) conducted over a period of two decades. In discussing the various

conviction-proneness studies, the court described the consistency between the

new studies and the older studies that used a pre-Witherspoon definition of

death-qualification, and found that this consistency validated the old studies

as probative on the effec:s of death-qualification in the post-Witherspoon era.

Id., at % fn. 72; 41, fm. 79. The court noted the absolute regularity of the

findings of these studies, their combined statistical impact, and the fact that

no studies reaching contrary conclusions were presented by the prosecution.

Id., at 40,41.

Jurors who are excluded for opposition to the death penalty are a large and

identifiable segment of the commmity." Peters v. Kiff, supra, opn. of

Justice Marshall, at 503. The distinctiveness of their attitudes and per-

spectives -- indeed, of their behavior as jurors -- is exhaustively docu-

mented in Hovey. The traditional requirements for holding them to be a

"cognizable class" are easily met. Particularly illuminating is the uncon-

tradicted expert testimony that the relationship between death penalty attitudes

and propensity to convict is “robust” -- a strong, empirically documented

relationship that will show up regardless of the exact criteria of attitudes

toward the death penalty, regardless of the population examined, and regardless

of sho examines the issue, when, where, or how. Hovey, supra, at 40-41.

The Hovey Court found further that the distinctive attitudes associated

with opposition to the death penalty vary in strength in proportion to the.

strength of the opposition to capital punishment. Id., at 44, 48-49. In its

discussion of the legal concept of neutrality, the Hovey court defined a neutral

jury as one representing the entire range of viewpoints in the commmity. 1.

at 19-20.

Not only do the excluded venirepersons constitute a cognizable group because

of the constellation of beliefs and experiences which they share, but their ex-

clus ion would also impermissibly affect the relative proportions of other cog-

nizable groups available to sit on a capital jury. The Hovey court discussed an

extensive series of polls, all of which siimw that blacks and women oppose the

death penalty more than whites and men, and that they are disproportionately ex-

cluded by death-qualification. The court endorsed these findings, ending its

discussion with the observation that no one who ever did a study on this issue

has failed to find these differences. Id., at 57.

Once exclusion of an identificable group is established, the only remaining

inquiry is "whether the exclusion might be found to have sufficient justification."

Peters v. Kiff, supra, at 500, fn. 10.

In Taylor v. Louisiana, supra, the Supreme Court held that "The right to a

proper jury cannot be overcome on merely rational grounds. There must be weigh-

tier reasons. 419 U.S. at 534. The state must demonstrate that

17

„. , a@ Significant state interest . . . [is] manifestly and

primarily advanced by those aspect of the jury-selection process

. « « that result in the disproportionate exclusion of a distinc-

tive group." Duren v. Missouri, supra, 439 U.S. at 367-368.

The state, then, “bears the burden of justifying this infringement by showing

attainment of a fair cross section to be incompatible with a significant state

interest." Id., at 368.

Mr. Justice Stewart, speaking for the Court in Witherspoon, noted the

possibility of accomodating both l“ the State's interest in submitting the penalty

issue to a jury capable of imposing capital punishment land! . . the defen-

dant's interest in a completely fair determination of guilt or innocence]... .

by means of a bifurcated trial, using one jury to decide guilt and another to

fix punishment." 391 U.S, at 520, fn. 18.

Missouri Revised Statutes Section 565.006 embodies a legislative prefer-

ence for having a single jury hear both phases of capital trials. Although

this preference may not be arbitrary (see People v. Washington, 71 Cal.2d 1061,

1089 (1969)), mere lack of arbitrariness, or even specific considerations of

administrative convenience or monetary saving, cannot justify a procedure that

deprives a capital defendant of a fundamental Sixth Amendment right. Taylor v.

Louisiana, supra, 419 U.S, at 535; Duren v. Missouri, supra, 439 U.S. at 308.

This Court has held that "the cost of protecting a constitutional right cannot

justify its total denial." Bounds v. Smith, 430 U.S. 817, 825 (1977).

The State of Missouri has no legitimate judicial or prosecutorial interest

in preserving the present form of death-qualification. Petitioner concedes to

the State the right to qualify jurors concerning their ability to consider a

death sentence at the penalty trial. The State's interest in obtaining a capital

sentence in an appropriate case is fully recognized. Petitioner also concedes

the State's right to exclude from juries at the guilt phase all venirepersons

who make “unmistakably clear . . . that their attitude toward the death penalty

would prevent them from making an impartial decision as to the defendant's

guilt." Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21 (1968) (emphasis in

original). Thus, the State's interest in a fair trial of the issue of guilt or

innocence is also fully recognized.

Under the Missouri Constitution, art. I, § 18(a), defendant

is entitled to trial by an impartial jury. This is an absolute

right. There are no qualifications or exceptions to it. The state

is not entitled to the death penalty against this defencant as a

matter of right. All it is entitled to is a jury which will con-

sider the ceath penalty, 88 59115 guilt has been determined,

(emphasis added). I do not ieve enges for cause at the

outset of the trial are valid unless the prospective juror declares

that his views on capital punishment are such as would prevent him

from making an impartial decision as to defendant's guilt. It does

not follow that persons opposed to the death penalty are necessarily

thereby unable to make an impartial decision as to defendant's guilt.

But that was never determined here - the prospective jurors were ex-

cluded simply because they would not vote for the death penalty.

This error in excluding prospective jurors who were not shown to be

incapable of making an impartial decision as to guilt or innocence

requires tuat the cause be reversed and remanded. (Dissenting opinion

of Missouri Supreme Court Judge Seiler, pp. 4-5, included in the

Appendix herein).

In the premises, we submit that the exclusion fran service during the

guilt stage of petitioner's capital trial of prospective jurors unwilling to

consider the death penalty is unconstitutional under the Sixth Amendment to

the United States Constitution. We believe that the question presented here-

in is one of first impression which is of such grave and fundamental impor-

tance that this Court should grant certiorari to resolve the issue.

IN AFFIRMING PETITIONER'S DEATH SENTENCE, THE MISSOURI SUPREME COURT

APPLIED THE SAME VAGUE AND BROAD CONSTRUCTION, HELD TO BE UNCONSTITUTIONAL

BY THIS COURT IN GODFREY v. GEORGIA, 446 U.S. 420 (1989), TO TWO STATUTORY

AGGRAVATING CIRCUMSTANCES.

Under Missouri's death penalty scheme, a person convicted of capital

murder can not be sentenced to death unless it is found beyond a reasonable

doubt that at least one of ten aggravating circumstances provided by statute

exists and is not outweighed by any statutorily provided mitigating circun-

stances. Missouri Revised Statutes Section 565.012 (1978). The court is

required to impose the sentence fixed by the jury. Section 565.006.2, R.S.Mo.,

1978.

The two aggravating circumstances in question are contained in Missouri

Revised Statutes Section 565.012 (1978). Subsection .2(6) reads, in pertinent

part, "The offender . . . committed capital murder as an agent or employee of

another person.“ Subsection .2(7) reads, "The offense was outrageously or

‘wantonly vile, horrible or inhuman in that it involved torture, or depravity

of mind."

19

With respect to subsection .2(7), however, the jury were instructed only

to find and they did find that

The murder . . involved depravity of mind and that as a

result thereof it was outrageously vile and inhuman.

This Court, in Godfrey v. Georgia, 446 U.S. 420 100 S.Ct. 1759, 64 L.Ed.

2d 398 (1980), reversed a sentence of death which was based wholly on an aggra-

vating circumstance framed in the very language approved by the Missouri Supreme

Court to affirm petitioner's death sentence.

In Godfrey, petitioner was charged «ith two counts of murder for the shot-

gun slaying of his wife and his mother-in-law. He was also charged with aggra-

vated assault for having struck his II-year old daughter on the head with the

barrel of his shotgun. The single aggravating circumstance submitted to the

jury quoted the statutory language of Georgia Code Annotated Section 27.28. 1

(b)(7) in its entirety. The jury imposed sentences of death on both of the

murder convictions. As to each, the jury specified that the aggravating cir-

cumstance they had found beyond a reasonable doubt was "that the offense of

murder was outrageously or wantonly vile, horrible and inhuman." The Court

stated that It here is nothing in these few words, standing alone, that in-

plies any inherent restraint on the arbitrary and capricious infliction of

the death sentence. A person of ordinary sensibility could fairly character-

ize almost every murder as ‘outrageously or wantonly vile, horrible and in-

human.' " Godfrey v. Georgia, supra, 100 S.Ct. at 1765. The Court vacated

Godfrey's sentences of death because the trial judge's sentencing instruc-

tions . . gave the jury no guidance concerning the meaning of any of § (b)

(Js terms. In fact“, the Court cont inued, the jury's interpretation of

§ (b)(7) can only be the subject of sheer speculation." Id., at 100 S.Ct.

1765.

The majority of the Missouri Supreme Court concluded that Godfrey was

decided on the basis that the Georgia Supreme Court applied a valid instruc-

tion to a legally sufficient jury finding of an aggravating circumstance

unsupported by the factual details of the offenses from which the defendants

crimes could not

be said to have reflected a consciousness materially

than that of any person guilty of — "His

—— were killed instantaneously. They were members of

his family who were causing him extreme emotional trauma.

Shortly after the killings, he acknowledged his responsibility

and the heinous nature of his crimes. (Higgins, J., citing

Godfrey v. Georgia, supra, 100 S.Ct. at 1767)

This narrow conclusion ignores the reasoning and substantive holdings of this

Court.

If a State wishes to authorize capital punishment,

{I]t has a constitutional 11 to tai lor and apply its

law in a manner that avoids arbitrary and capricious infliction

of the death * Part of a State's responsibility in this re

ard is to define crimes for which death may be the sentence

a way that obviates "standardless [sentencing] discretion."

Cregg v. Georgia, supra, 428 U. S., at 196, n. 47, 96 S.Ct. at 2936,

N. 4/7. See is P tt v. Florida, 428 U.S. 242, 96 S.Ct. 2960,

49 L.Ed.2d 913; Jurek V. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49

L.Ed.2d 929. It must channel the sentencer's discretion by "clear

and objective standards” that a ee and detailed guid-

ance, and that “make rationally revi le the process for imposing

a sentence of death."

Godfrey v. Georgia, supra, 100 S.Ct. at 1764-65.

Missouri, however, expressly declines either to tailor its law or to de -

fine the crimes for which death may be the sentence in a way that obviates

standardless sentencing discretion. Instead, the Missouri Supreme Court limits

its capital review in a selective and post hoc manner. For example, in affim-

ing petitioner's death sentence, the Court relies heavily on Georgia decisions

to validate subsection .2(7) as well as the partial submission of .2(7) to

the jury which imposed the penalty. But, at the time petitioner's case was

reviewed, the Georgia Supreme Court had already held this proposition to be

insufficient to support a sentence of death. Holton v. State, 243 Ga. 312,

253 S.E.2d 736, cert. denied, U.. 100 S.Ct. 263, 62 L.Ed.

2d 181 (1979); Godfrey v. Georgia, supra, 100 St. Ct. at 1775 (dissenting opin-

ion of Mr. Justice WHITE and Mr. Justice REHNQUIST). Moreover, the Godfrey

Court reviewed capital decisions of the Georgia Supreme Court and approved its

narrowing constructions of subsection (b)(7) as, "depravity of mind. . . is

that which results in torture or aggravated battery to the victim’ and is that

which comprehends “only the kind of mental state that led the murderer to

torture or to commit an aggravated battery before killing his victim." Id.,

at 1760.

Since Missouri's capital penalty scheme is patterned after Georgia's, the

Missouri Supreme Court assumes it, too, was validated by this Court in its deci-

sion in Gregg v. Georgia, 428 U.S. 153 (1976) which upheld Georgia's death

penalty scheme. But there appear serious and critical distinctions between

Georgia's and Missouri's statutes. Georgia's subject aggravating circum-

stance contains limiting terminology absent from Missouri's subsection .2(7)

(terminology absent appears underscored in the following) , viz.:

The offense of murder, 115. armed robbery or kidnapp ng was out-

rageously or wantonly vile, horribie or t it involved

torture, depravity of mind, or an avated battery to the victin.

Ga. Code Ann. Section 27.283T TF7 (1977) .

An understanding of the proper application and construction of this limiting

terminology serves as another serious point of departure between the States.

It is perfectly evident, moreover, that, in exercising its

review function, the Georgia Supreme Court understood that

the provision applied in its entirety, just as in the past

it has insisted that the provision be read as a whole and

not be lied disjunctively. (citations omitted). Godfre

Justice

8 Georgia, supra, at 1775 (dissenting opinion of Mr.

In approving the (b)(7) aggravating circumstance instruction read to the jury

in Godfrey, the Georgia Supreme Court remained consistent with its practice

noted above. By way of contrast, however, the Missouri Supreme Court in

affirming petitioner's death sentence approved both, the reading of an instruc-

tion to the jury which was based on a partial and insufficent rendition of

Missouri's subsection .2(7) aggravating circumstance, and the finding by the

jury thereof in words specifically found by this Court to be insufficient to

support a death sentence in Godfrey.

The Missouri Supreme Court's approval of the second aggravating circum-

stance in question, subsection .2(6), that petitioner "committed murder as an

agent or employee of another," was based solely upon the statement made to

petitioner by his co-defendant to "Kill the bitch,“ followed subsequently by

her strangulation despite evidence the murder was committed to avoid prosecution.

Missouri Revised Statutes Section 565.014 legislatively commands the

Supreme Court to review any case wherein the death penalty is imposed.! In

its review, the Missouri Court upheld the jury's finding of the subsection

.2(6) aggravating circumstance, but demurred in a footnote, stating that

1 3. with regard to the sentence, the supreme court shall determine:

(1) ther the sentence of death was imposed under the influ-

ence of passion, prejudice, or any other arbitrary factor; and

(2) Whether the evidence supports the jury's or juage's find-

ing * 1 aggravating circumstance as emmerated in section

(3) Whether the sentence of death is excessive or disproportion-

— Fah. y — GD, SELENE OOS UP

in Georgia,

Where two or more statutory aggravating circumstances are found by

the jury, the failure of one circumstance * * * does not taint the

p gs so as to invalidate the other aggravating circumstance

found and the sentence of death based thereon. (citations omitted)

(n. 5, majority opinion by HIGGINS, J., Appendix, post).

This position is at odds with its legislatively-mandated responsibility to ex-

ercise its judgment in the capital penalty reviewing process. Instead, the

Missouri Court defers to the judgment of the jury whose findings the Court is

required to question.

Both subject aggravating circumstances are constitutionally infirm and

the Missouri Supreme Court's construction of subsections .2(6) and .2(7) uncon-

sti tutional ly broadens statutory provisions whose constitutional validity has

not been established. We nonetheless address the question of taint.

In Stephens v. Zant, __ F.2d __ (11/26/80), the Fifth Circuit reviewed

defendant's conviction and sentence of death imposed by a jury which found

three or four aggravating circumstances submitted to them to be trve. During

the pendency of his state appeal, the Georgia Supreme Court, in Amold v. State,

236 Ga. 534 (1976), determined that a statutory aggravating circumstance was

unconstitutionally vague. One of the three aggravating circumstances charged

against Stephens was invalidated thereby and the Georgia Supreme Court elimi -

nated it from consideration of defendant's appeal and held that the sentence

was not impaired. Relying on Stromberg v. California, 283 U.S. 359 (1931)

(where 2 jury is instructed on several grounds, one of which proves to be un-

constitutional, and the reviewing court cannot determine whether the jury re-

lied on the unconstitutional ground, the verdict must be set aside), the Fifth

Circuit vacated defendant's sentence of death on the ground that it is impossible

to determine satisfactorily that the verdict in this case was not decisively

affected by an unconstitutional statutory aggravating circumstance”; the jury's

discretion was thus not "sufficiently channeled,"; and the process in which the

death penalty was imposed was not "rationally reviewable."

In our opinion, the Fifth Circuit has answered the question.

Petitioner's jury was granted license to apply its own standards to find

that he committed murder as an agent or employee of a man by whom he was

neither employed nor controlled; to find that he committed murder in a manner

the jury could decide warranted his life held in forfeit; and finally, to make

the decision that he should die for whatever reasons each juror might have hac,

or for no reason at all, and the Missouri Supreme Court's decision approved

the result in violation of the Eighth and Fourteenth Amendments to the United

States Constitution.

CONCLUSION

For the reasons set forth above, it is respectfully submitted that

this Petition for Writ of Certiorari should be granted.

Attorney at Law

3001 N. 291 Highway

P.O. Box 452

Harrisonville, Missouri 64701

816/884-5521

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Filming Copy

APPENDIX A

MISSOURI REVISED STATUTES

565.001 Any person who unlawfully, willfully, knowingly, deliberately, and

with premeditation kills or causes the killing of another human being is guilty

of the offense of capital murder.

565.006 1. At the conclusion of all trials upon an indictment or informa -

tion for capital murder heard by a jury, and after argument of counsel and

proper charge from the court, the jury shall retire to consider a verdict of

guilty or not guilty without any consideration of punishment, and by their

verdict ascertain whether the defendant is guilty of capital murder, murder in

the first degree, murder in the second degree, manslaughter, or is not guilty

of any offense. In nonjury capital murder cases, the court shall likewise

first consider a finding of guilty or not guilty without any consideration of

punishment, and by its verdict ascertain, whether the defendant is guilty of

capital murder, murder in the first degree, murder in the second degree, man-

slaughter, or is not guilty of any offense.

2. Where the jury or judge returns a verdict or finding of guilty as provided

in subsection 1 of this section, the court shall resume the trial and conduct

a presentence hearing before the jury or judge at which time the only issue

shall be the determination of the punishment to be imposed. In such hearing,

subject to the laws of evidence, the jury or judge shall hear additional evi-

dence in extemuat ion, mitigation, and aggravation of punishment, including the

record of any prior criminal convictions and pleas of guilty or pleas of nolo

contendere of the defendant, or the absence of any such prior criminal convic-

tions and pleas. Only such evidence in aggravation as the prosecution has made

known to the defendant prior to his trial shall be admissible. The jury or

judge shall also hear argument by the defendant or his counsel and the prosecu-

ting attorney regarding the punishment to be imposed. The prosecuting attorney

shall open and the defendant shall conclude the argument tothe jury or judge.

Upon conclusion of the evidence and arguments, the judge shall give the jury

appropriate instructions and the jury shall retire to determine the punishment

to be imposed. In capital murder cases in which the death penalty may be in-

posed by a jury or judge sitting without a jury, the additional procedure

provided in section 565.01 shall be followed. The jury, or the judge in

cases tried by a judge, shall fix a sentence within the limits prescribed

by law. The judge shall impose the sentence fixed by the jury or judge.

If the jury cannot, within a reasonable time, agree to the punishment, the

judge shall impose sentence within the limits of the law; except that the

judge shall in no instance impose the death penalty when, in cases tried by

a jury, the jury cannot agree upon the punishment.

3. If the trial court is reversed on appeal because of error only in the

presentence hearing, the new trial which may be ordered shall apply only to

the issue of punishment.

565.008 1. Persons convicted of the offense of capital murder shall, if

the judge or jury so recommends after complying with the provisions of sec-

tions 565.006 and 565.012, be punished by death. If the judge or jury dees

not recommend the imposition of the death penalty on a finding of guilty of

capital murder, the convicted person shall be punished by imprisonment by

the division of corrections during his natural life and shall not be eligible

for probation or parole until he has served a minimm of fifty years of his

sentence.

2. Persons convicted of murder in the first degree shall be punished by

imprisonment by the division of corrections during their natural lives.

Persons convicted of murder in the second degree shall be punished by imprison-

ment by the division of corrections for a term of not less than ten years.

565.012 1. In all cases of capital murder for which the death penalty is

authorized, the judge shall consider, or he shall include in his instructions

to the jury for it to consider: (1) Any of the statutory aggravating circum-

stances enumerated in subsection 2 which may be supported by the evidence,

(2) Any of the statutory mitigating circumstances enumerated in subsection 3

which may be supported by the evidence, (3) Any mitigating or aggravating cir-

cumstances otherwise authorized by law, and (4) Whether a sufficient aggravating

circumstance or circumstances exist to warrant the imposition of death or whether

a sufficient mitigating ciramstance or circumstances exist which outweigh

the aggravating circumstance or circumstances found to exist.

2. Statutory aggravating circumstances shall be limited to the following:

(1) 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 substan-

tial history of serious assaultive criminal convictions:

(2) The offense was committed while the offender was engaged in the commission

of another capital murder;

(3) The offender by his act of capital murder knowingly created a great risk

of death to more thai one person in a public place by means of a weapon or

device which would normally be hazardous to the lives of more than one person;

(4) The offender committed the offense of capital murder for himself or another,

for the purpose of receiving money or any other thing of monetary value;

(5) me capital murder was committed against a judicial officer, former

judicial officer, prosecuting attorney or former prosecuting attorney, Cir-

cuit attorney or former circuit attomey, elected official or former elected

official during or because of the exercise of his official duty;

(6) The offender caused or directed another to commit capital murder or com-

mitted capital murder as an agent or employee of another person;

(7) The offense was outrageously or wantonly vile, horrible or inhuman in that

it involved torture, or depravity of mind;

(8) The capital murder was committed against any peace officer, corrections

employee, or fireman while engaged in the performance of his official duty;

(9) The capital murder was committed by a person in, or who has escaped from,

the lawful custody of a peace officer or place of lawful confinement;

(10) The capital murder was committed for the purpose of avoiding, interfering

with, or preventing a lawful arrest or custody in a place of lawful confinement,

of himself or another.

3. Statutory mitigating ciramstances shall include the following:

(1) The defendant has no significant history of prior criminal activity;

(2) The capital felony was committed while the defendant was under the influence

of extreme mental or emotional disturbance;

(3) The victim was a participant in the defendant's conduct or consented to the

act;

(4) The defendant was an accomplice in the capital felony committed by

another person and his participation was relatively minor;

(S) The defendant acted under extreme duress or under the substantial

domination of another person;

(6) The capacity of the defendant to appreciate the criminality of his

conduct or to conform his conduct to the requirements of law was substan-

tially impaired;

(7) The age of the defendant at the time of the crime.

4. The statutory instructions as determined by the trial judge to be warranted

by the evidence shall be given in charge and in writing to the jury for its

deliberation. The jury, if its verdict is a recommendation of death, shall

designate in writing signed by the foreman of the jury, the aggravating cir-

cumstance or circumstances which it found beyond a reasonable doubt.

5. Unless at least one of the statutory aggravating circumstances enumerated

in this section is so found, the death penalty shall not be imposed.

565.014 1. Whenever the death penalty is imposed in any case, and upon the

judgment becoming final in the trial court, the sentence shall be reviewed on

the record by the supreme court of Missouri. The circuit clerk of the court

trying the case, within ten days after receiving the transcript, shall trans-

mit the entire record and transcript to the supreme court together with a

notice prepared by the circuit clerk and a report prepared by the trial judge.

The notice shall set forth the title and docket number of the case, the name

of the defendant and the name and address of his attorney, a narrative state-

ment of the judgment, the offense, and the punishment prescribed.- The report

by the judge shall be in the form of a standard questionnaire prepared and

supplied by the supreme court of Missouri.

2. The supreme court of Missouri shall consider the punishment as well as any

errors enumerated by way of appeal.

3. With regard to the sentence, the supreme court shall determine:

(1) Whether the sentence of death was imposed under the influence of passion,

prejudice, or any other arbitrary factor; and (2) Whether the evidence supports

the jury's or judge's finding of a statutory aggravating circumstance as enumer-

ated in section 565.012; and (3) Whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases, considering both the

crime and the defendant.

4. Both the defendant and the State shall have the right to submit briefs

within the time provided by the supreme court, and to present oral argument

to the supreme court.

5. The supreme court shall include in its decision a reference to those

similar cases which it took into consideration. In addition to its authority

regarding correction of errors, the supreme court, with regard to review of

death sentences, shall be authorized to: (1) Affirm the sentence of death; or

(2) Set the sentence aside and remand the case for resentencing by the trial

judge based on the record and argument of comsel. The records of those

similar cases referred to by the supreme court of Missouri in its decision,

and the extracts prepared as hereinafter provided for, shall be provided to

the resentencing judge for his consideration.

6. There shall be an assistant to the supreme court, who shall be an attorney

appointed by the supreme court and who shall serve at the pleasure of the court.

The court shall accumulate the records of all capital cases in which sentence

was imposed after May 26, 1977, or such earlier date as the court may deem

appropriate. The assistant shall provide the court with whatever extracted

information the court desires with respect thereto, including but not limited

to a synopsis or brief of the facts in the record concerning the crime and the

defendant. me court shall be authorized to employ an appropriate staff,

within the limits of appropriations made for that purpose, and such methods

to compile such data as are deemed by the supreme court to be appropriate and

relevant to the statutory questions concerning the validity of the sentence.

The office of the assistant to the supreme court shall be attached to the

office of the clerk of the supreme court for administrative purposes.

7. The sentence review shall be in addition to direct appeal, if taken, and

the review and appeal shall be consolidated for consideration. The court shall

render its decision on legal errors enumerated, the factual substantiation of

the verdict, and the validity of the sentence.

MISSOURI CONSTITUTION OF 1945, ARTICLE 1, SECTION 18(a), Dat in criminal pros-

ecutions the accused shall have the right to appear and defend, in person and by

counsel; to demand the nature and cause of the accusation; to meet the witnesses

against him face to face; to have process to compel the attendance of witnesses in

his behalf; and a speedy public trial by an impartial jury of the countv.

APPENDIX B

GEORGIA STATUTES

Georgia Code Annotated Section 27.2534.1(b)(7) (1977) The offense of murder,

rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible

or inhuman in that it involved torture, depravity of mind, or an aggravated

battery to the victin.

APPENDIX. B

Supreme Court of Missouri

en bane

DUPLICATE

OF FILING ON

MAY 1 1 198)

IN OFFICE OF

CLERK SUPREME COURT

STATE OF MISSOURI,

Plaintiff-Respondent,

vs. No. 61797

GEORGE MERCER,

ee —Vů— eee —

Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable John C. Crow, Judge

George “Tiny” Mercer was convicted by a jury of capital

murder, § 565.001, RSMo 1978; the jury fixed his punishment at

death, 88 565.008 and 568.012, RSMo 1978. Judgment was rendered

accordingly. he charges errors to the excuse for cause of pros-

pective jurors who voiced objections to consideration of the death

penalty; the prosecuting attorney's reference in opening statement

and a stipulation concerning a prior accusation of rape of another

victim by defendant; and the cross-examination of defendant with

respect to previously excluded evidence. In addition to the review

for error, the Court will review the sentence as mandated by § 565.014,

RSMo 1978. Affirmed.

I.

The evidence supports defendant's conviction for the murder

of Karen Keeton, a 22-year-old white female, in the early morning

hours of August 31, 1978. It established that defendant, a 34-year-old

white male, was drinking with friends at the Blue Seven Lounge in

Grandview, Missouri, the evening before. Karen was working there as a4

waitress. During the evening, defendant made the comment that he

would like to take her to bed. Steven Gardner, a friend of defendant

who was acquainted with Karen, went up to the bar to talk to her. He

returned a short time later and said he and Karen were going to

breakfast and would go to defendant's house afterward. Defendant

left with David Gee, another friend, and went to defendant's home in

Belton, Missouri, arriving there around 12:30 a.m. John Campbell was

at the house babysitting with defendant's ten-year-old daughter. A

short time later Gardner and Karen Keeton arrived.

After visiting for some time defendant picked up a sawed-off

double-barrelled shotgun, opened it to show the shells, walked over

to Karen, tapped her on the head with the gun, and told her to "get

her ass upstairs.” When she hesitated he grabbed her and pushed

her to the stairway. She yelled for Gardner to help. He responded,

“Happy Birthday, Tiny,” then turned to the others and said, "Seconds."

Karen's dress was tossed downstairs with defendant telling Gardner to

"put these clothes where they go, you know where they go.” Gardner

put the clothes in a closet and pocketed the money from her purse.

Defendant later came downstairs; he was naked and had an erection.

Gardner went upstairs. Defendant drank beer for awhile, showered and

returned to the table to dry himself at which time he remarked what

“a good piece of ass“ she was and that he was going to go back and

"fuck her in the butt“. Several minutes later, Gardner yelled for David

Gee to come upstairs. Gee, followed by defendant and John Campbell,

complied. Upstairs, defendant told Karen, who was lying naked on the

bed, to undress Gee and "start sucking David Gee's dick.” She performed

as directed. After Gee answered, “Pretty good", to defendant's question

about her performance, defendant said, “You leaky cunt, you'd better

do it better." When asked how she was doing now, Gee answered, “Better

now.” Defendant, Gardner and Campbell returned downstairs. At this

time, Karen stopped what she was doing, and Gee put his clothes on.

Karen asked what was going to happen to her; Gee attempted to reassure

her. When Gee returned downstairs, defendant told Campbell to get

upstairs so they would all be in it together. Campbell proceeded

upstairs and found Karen unclothed. She cried, and Campbell talked

with her, trying to console her. He too returned downstairs.

Defendant started upstairs again as Gardner was leaving. He

asked Gardner what he wanted done with Karen and Gardner replied,

“Kill the bitch.” Defendant said, “Okay, brother." Gardner asked

if he would need any help; defendant said no, he would get rid of

the body where it would not be found. Gardner and Gee left, defendant

went upstairs, and Campbell went to sleep downstairs.

Campbell was suddenly awakened by defendant calling his name from

upstairs. He responded and found defendant straddling Karen's body

with his hands on her throat. Defendant screamed at Campbell to take

her pulse. Campbell grabbed the arm of Karen's seemingly lifeless body,

and found a faint pulse. At the time he told defendant this, he could

smell human waste which was all over the bed. Defendant “hollered”,

struck the left side of Karen's head, and said, “Die you bitch. . . This

is a leaky cunt. Die.” He continued strangling her, and again screamed

at Campbell to take her pulse. Campbell found no pulse. When Campbell

reported this, defendant got off the bed, qrabbed Karen's legs, and pulled

her off the bed. Defendant took the sheets and blanket to the washing

machine and told Campbell to wipe the waste off the floor. Defendant

came back and told Campbell to get his truck and put the tailgate down

so he could put Karen in it. After Campbell complied, defendant brought

the body down and put it in the truck. Campbell and defendant climbed

in the truck and Campbell started driving at defendant's direction.

Finally defendant had Campbell stop. Defendant got out and dumped the

body over a fence into a field. When he returned he told Campbell, “Now,

if I'd killed that leaky cunt 17-year-old like I did her... TI wouldn't

have been on any rape charges and things I'm on right now." At that time,

defendant had a rape charge pending against him filed by a 17-year-old

girl. Defendant and Campbell returned to defendant's house where

defendant gave Campbell the shotgun to hide, and burned Karen's purse.

Three to four wecks later Campbell and his attorney looked for

and found the badly decomposed body of Karen Keeton. They reported

this to the authorities. The body was identified by means of her teeth.

P 17.

In Furman v. Georgia, 408 8. 236 (1972), the Court struck

down Georgia's death penalty provisions holding that the penalty of

death may not be imposed under sentencing procedures that create a sub-

stantial risk that the punisnment will be inflicted in an arbitrary

and capricious manner; the Court did not hold that the infliction

of the death penalty per se violates the Constitution's ban on crue)

and unusual purishments. Greaqa v. Georgia, 428 U.S. 153, 188 (1976).

rollowina the decision in Furman v. Georgia, supra, the Georgia

lecislatur« enacted a new death penalty scheme. In Gregg v. Georgia,

supra, th Court held that this statutory system did not violate the

Constitution. The Court stated:

[Tih econeerns expressed in Furman that the penalty

of dee not be imposed in an arbitrary or capricious

. manner can be mef by, a carefully drafted statute that

ensurcs that the sentencing authority is given adequate

information and guidance.

Id. at 195. The “eorqia statute was found to meet this test.

The Missouri death penalty scheme is patterned after the Georgia

scheme approved in Gregg v. Georg), Supra. Section 5 5. 006, RSMo 1978,

permits the death penalty Tor Ine those persons convicted of capital

murder. ! In a capital murder case defendant's quilt or innocence 15

determined in the first stage ot 4 bifurcated trial. Section 565.006.1,

RSM Supp. 1929. Where the Jury or judge returns a quilty verdict, 4

presentence hearing 1s held at which,

IT}he jury or judae shall heor additional evidence

in extenuation, mitigation, and aggravation of punish-

ment, including the record of any prior criminal convic-

tions and pleas of guilty, or pleas of nolo contendere

of the defendant, or the absence of any such prior

criminal convictions and pleas. Onlv such evidence in

vqravation as the prosecution has made known to the

; 565.001. Capatal murder defined. -- Any person who unlawfully,

wilfully, knowingly, deliberately, and with premeditation kills or

causes the killina of another human being is quilty of the of fense

of capital murder.

-4-

defendant prior to his trial shall be admissible. The

jury or judge shall also hear argument by the defendant

or his counsel and the prosecuting attorney regarding

the punishment to be imposed.

Section 565.006.2.

The jué@ge is required to consider or to include in his instruc-

tions to the jury for it to consider any statutory aggravating or

mitagating circumstances supported by the evidence, any mitigating

or aggravating circumstances otherwise authorized by law, and,

Whether a sufficient agqqravating circumstance or

circumstances cxist to warrant the imposition of death

or whether a sufficient mitigating circumstance or

circumstances exist which outweigh the aggravating cir-

cumstance or circumstances found to exist.

Section 565.012.1 (4), RSMo Supp. 1980.

Unless one of the aggravating circumstances enumerated in § 565.012.

is found, the death penalty cannot be imposed. Section 565.012.5. If

the verdict is a recommendation of death, the jury must designate

the aggravating circumstances which it found beyond a reasonable doubt.

Section 565.012.4. The judge is required to impose the sentence fixed

by the jury. Section 565.006.2.

If the death penalty is imposed, the sentence must be reviewed

on the record by this Court. This Court is directed to consider the

punishment as well as any errors raised on appeal, and to determine:

(1) Whether the sentence of death was imposed

under the influence of passion, prejudice, or any

other arbitrary factor; and

(2) Whether the evidence supports the jury's

or judge's finding of a statutory aggravating

circumstance as enumerated in section 565.012; and

(3) Whether the sentence of death is excessive or dis-

proportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.

Section 565.014.3, RSMo 1978.

The Court must also include in its decision a reference to similar

cases taken into consideration. Section 565.014.5. Upon review, the

death sentence may be affirmed or set aside and the case remanded for

resentencing by the trial judge based on the record and argument of

counsel. Id.

tl

After the jury found Mercer quilty of capital murder, no

additional evidence was presented at the presentence hearing; both

the state and defendant did, however, make additional arguments regard-

ing punishment. The court instructed on and the jury found two

aggravating circumstances:

1. Whether the defendant, as an agent or employee

of Stephen Gardner and at his direction, murdered

Karen Keeton. [Section 565. 012.2 (660

2. Whether the murder of Karen Keeton involved

depravity of mind and that as a result thereof it

was outrageously or wantonly vile and inhuman. [Section

565.012.207

The court also instructed the jury on the following mitigating cir-

cumstances:

1. Whether Karen Keeton was a participant in the

defendant's conduct or consented to the act.

2. Whether the defendant acted under extreme duress

or substantial domination of another person.

3. The age of the defendant at the time of the

offense.

4. .. [inte absence of any prior criminal con-

victions and pleas of quilty or pleas of nolo contendere

of the defendant.

111.

*

Appellant challenges the trial court's excuse for cause of

fifteen prospective jurors who expressed conscientious opposition

to the imposition of the death penalty. ne contends the excuse of

five such venire persons violated the constitutional standards of

Witherspoon’v. Illinois, 391 U.S. 510 (1968), because they were excused

for voicing gencral objections to the death penalty. Appellant further

contends the court's failure to adhere strictly to the Witherspoon v.

Illinois standard of qualifying the jury precluded the constitutional

application of Missouri's death penalty statutes to prevent the arbitrary

and capricious use of jury discretion. In addition, he charges the

excuse of the fifteen venire persons violated his constitutional rights

to a trial by an impartial] jury composed of a cross-section of the

community.

In Witherspoon v. Illinois, supra, prospective jurors generally

opposed to capital punishment had been excluded for cause from the

jury that convicted defendant and sentenced him to death. The Court

held that:

A sentence of death cannot be carried out if

the jury that imposed or recommended it was chosen by

excluding veniremen for cause simply because they

voiced general objections to the death penalty or

expressed conscientious or religious scruples against

its infliction.

Id. at 522. The Court noted, however, that its decision did not prevent

the execution of a death sentence where veniremen excluded for cause

made it “unmistakably clear . . that they would automatically

vote against the imposition of capital punishment without regard to

any evidence that might be developed at the trial of the case before

them." Id. at 522, n. 21. See also Adams v. Texas, __ U.S. __, 100

S.Ct. 2521 (1989); Davis v. Georgia, 429 U.S. 122 (1976); Maxwell v.

Bishop, 398 U.S. 262 (1970); Boulden v. Holman, 394 U.S. 478 (1969).

The parties were in aqreement and the .court understood that a

venire person could not be excluded unless that person was, “irrevocably

committed to vote against the penalty of death regardless of the facts

and circumstances that might emerge in the course of the trial.” The

state questioned each juror individually:

If, during the trial of the case the facts and

circumstances that come forth as evidence are such

that under the law the jury could consider the death

penalty, would you, as a juror, consider the death

penalty?

The state would follow any negative answer by questioning whether

the venire person could assess the death sentence under any circumstance.

The trial court sustained fifteen of the state's challenges for

cause on the ground the venire persons were irrevocably committed

against imposing the death penalty regardless of the circumstances.

Appellant claims for the first time on appeal that five of these fifteen

venire persons were equivocal in response to the state's questions. The

pertinent examination of the five venire persons in question is contained

in the appendix.

-7-

Review of the questions and answers indicates each of the five

excused venire persons made it “unmistakably clear” that they would not

impose the death penalty under any circumstances. Appellant presents

the response of Harry Bumgarner as the most equivocal. His response,

“1 don't think so,” is not equivocal in its context; it is common

vernacular to express a negative. See State v. Pride, 567 S.W.2d 426,

433 (Mo.App. 1978). In light of the trial court's stated understanding

of the limited excuse, its ability to observe the tenor of the question-

ing and the frequent reluctance of lay persons to communicate their

deep-seated opinions in a cogent and emphatic manner, it can only be

said that the requirements of Witherspoon v. Illinois, supra, were met.

Appellant's challenge to the excuse of all fifteen venire persons

is actually two-fold. First, he argues that the excuse for cause

violated his right under the sixth and fourteenth amendments to

trial by a jury drawn from a representative cross-section of the

community. Second, he argues the excuse for cause resulted in a jury

that was not impartial on the issue of guilt; that it was prosecution-

prone. Both of these arguments were rejected in State v. Mitchell,

8. . 20 ([Mo. banc 1981).

As in that case, there is no evidence to establish a prima facie

violation of the fair cross-section requirement.” If such a prima

facie case could be established, the state has a significant interest

in impaneling only those jurors vo have stated that they can follow

the law. The exclusion of those venire persons who have stated unambig-

vously that they cannot, under any circumstances, consider a certain

punishment permissible under the law does not violate representative

cross-section requirements of the sixth and fourteenth amendments.

Spinkellink v. Wainwright, 578 F.2d 582, 597 (Sth Cir. 1978), cert.

denied, 440 U.S. 976 (1979). The right to a representative jury does

2 the three elements that establish a prima facie violation are: (1) the

persons excluded from jury service must be members of a distinctive?

group in the community"; (2) the representation of this group in venires

is “not fair and reasonable in relation to the number of such persons in

the community"; and (3) the underrepresentation is due to a “systematic

exclusion of the group in the jury-selection process." Duren v. Missouri,

439 U.S. 357, 364 (1979).

not include the right to be tried by jurors who have explicitly

indicated an inability to follow the law. Lockett v. Ohio,

438 U.S. 586 (1978).

In Witherspoon v. Illinois, supra at 516, petitioners maintained

that a jury selected in the manner present in that case, must

necessarily be biased in favor of conviction citing two surveys in

support. See Witherspoon v. Illinois, supra at 517, n. 10. The

Court found that the data presented was “too tentative and fragmentary

to establish that jurors not opposed to the death penalty tend to

favor the prosecution in the determination of quilt,” and declined

to conclude that the “exclusion of jurors opposed to capital punishment

results in an unrepresentative jury on the issue of guilt or substan-

tially increases the risk of conviction." Id. at 517-518. The Court

refused to reverse the conviction. See also Bumpers v. North Carolina,

391 U.S. 543 (1968).

Following Witherspoon v. Illinois, supra, a number of studies

were published on a theory that “death-qualified” jurors are not

3 These studies, however, are not

impartial on the issue of guilt.

conclusive, and this Court will not reverse defendant's conviction

on the basis of the studies presented.

Those chosen to be jurors in no way indicated that they were biased

for the prosecution or against the defendant; they indicated only that

they would consider the death penalty if the law and facts permitted it.

As stated in Sprinkellink v. Wainwright, supra at 594:

1 Defendant cites the following: V. Boehm, Mr. Prejudice, Miss

Sympathy, and the Authoritarian Personality; An Application of Psycho-

logical Measuring Techniques to the Problem of Jury Bias, 1968 Wisc. L.

ev. 1 E. Bronson, On the Conviction~Proneness a Representativeness

of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen,

42 U. Colo. L. Rev. 1 (1 ; F. Go rg, Toward Expansion of Witherspoon:

Capital Scruples, Jury Bias, and Use of Psyc cal Data to Raise Pre-

sumptions in the Law, 5 Harv. Civil Rights - Civil Liberties L. Rev. 53

T1370) ; E. Jurow, New Data on the Effect of a “Death Qualified Jury” on

the Guilt Determination Process, 64 Harv. L. Rev. 367 (1971); K. Rokeach

& D. McLellan, tism and the Death Penalty: A Reinterpretation of

the Duquesne Po Data, 8 Duquesne L. Rev. 128 (1969-70); V. White, The

Constitutional 8 of Convictions Imposed by Death-Qualified Juries,

58 Cornell L. Rev. reporting Harris Po ata); H. Zeisel,

Some Data on Juror Attitudes Toward Capital Punishment (1968) published

by the Center for Studies in Criminal Justice, University of Chicago Law

School.

[The veniremen indicated only that they would be

willing to perform their civic obligation as jurors

and obey the law. Such persons cannot accurately be

branded prosecution-prone.

"A juror wholly unable to ever consider the death penalty no

matter what the facts of a given case, would clearly be unable to

follow the law... in assessing punishment.” Adams v. Texas,

supra at 2526. The state has a legitimate interest in administering

its death penalty statute which permits it to bar from jury service

those whose belief about capital punishment would lead them to ignore

the law. Adams v. Texas, supra. See also State v. Mitchell, supra.

B.

In the state's opening statement the prosecuting attorney told

the jury:

We are back at the location where Karen Keeton's

body was dumped, and Mercer says to Campbell: 1

wouldn't be in the trouble I'm in today if 1'd killed

that other bitch on the rape.’

*l was going to do it, but Bruce Miller talked

me out of it.’

Deborah Middleton will come here and testify.

Deborah Middleton will tell you that she first met

Georae Mercer on July 26th, 1978, and that basically

an occurrence happened in which she later brought charges

against George Mercer and before August 3lst of 1978.

She'll be here to testify.

Defendant objected and requested a mistrial which was denied. John

Campbell later in the trial testified that after defendant had dumped

the body:

He got in the truck, and he said, ‘Now, if I'd

killed that leaky cunt 17-year-old like I did her,

he says, 1 wouldnt've been on any rape charges and

things I'm on right nov

Defendant objected to the calling of Deborah Middleton to testify about

the rape charge she brought against defendant. The trial court ruled

that Middleton could testify that she had made an accusation of rape

against defendant prior to August 31, 1978 (the day of Karen Keeton's

murder), provided the state did not go into the truth of the charge.

Defendant then agreed to stipulate that:

On July 26, 1978, a 17-year-old female accused

the defendant, George Mercer, of rape, and as a result

of that accusation a criminal prosecution for rape was

commenced against the defendant, George Mercer, prior

to August 31, 1978.

Appellant now charges error to permitting the prosecutor to state

„in opening statement that Deborah Middleton would testify about her

rape charge against the defendant, and arques he was forced to choose

between having Deborah Middleton testify or entering into the stipulation.

Appellant contends Deborah Middleton's testimony was inadmissible and

therefore the stipulation and reference in opening statement were improper

because there was no evidence that the person defendant referred to in his

statement to John Campbell was Deborah Middleton, because the stipulation

defendant was forced into agreeing to constituted proof of a separate and

distinct crime for which defendant was not on trial, and because it con-

stituted an attack upon defendant's character which had not been placed

in issue.

In view of John Campbell's testimony concerning the defendant's

statement after dumping Karen Keeton's body, Deborah Middleton's testimony,

limited to the bringing of a rape charge against defendant prior to

August 31, 1978, would have been admissible. Therefore the trial court

did not err in permitting the prosecuting attorney to refer to this in his

opening statement or in permitting the stipulation in lieu of her testimony.

Defendant denied the killing and sought to portray John Campbell

as a liar. It was necessary for the state to establish defendant's

motive, and to corroborate John Campbell's testimony. Defendant's

statement to John Campbell was relevant as evidence of his motive in

killing Karen Keeton; he killed her to avoid detection of the rape.

Deborah Middleton's testimony would have explained defendant's statement

and would have corroborated John Campbell's testimony - the state sought

to prove that there was in fact a 17-year-old girl who had brought rape

charges against defendant prior to the murder of Karen Keeton. The

stipulation did not go into the facts leading to the charges or the

disposition of those charges.

-ll-

P mt ee Sane ee 42

The admissibility of the stipulation is not affected by the

lack of direct evidence establishing that Deborah Middleton was the

gir] referred to by defendant in his statement to John Campbell.

Evidence need only be relevant, not conclusive. It is relevant if

it logically tends to prove a fact in issue or corroborates relevant

evidence which bears on the principal issue. State v. Lee, 556 S.W.2d

25 (Mo. banc 1977), vacated on other grounds, 439 U.S. 461 (1979).

Nor is this otherwise relevant evidence on the issue of motive rendered

inadmissible because it might also tend to constitute proof of another

crime or discredit defendant's character. See State v. Holt, 592 S.W.2d

759, 775 (uo. banc 1980); State v. Richardson, 515 S.W.2d 571, 573 (Mo.

1974).

C.

Prior to trial the court sustained defendant's motion to suppress

a mattress cover seized during a warrantless search of defendant's

residence. During eross-examination of defendant, the state asked:

You were aware that in the upstairs bedroom of

that house that there was a mattress that was covered

with human feces --

Defendant objected and requested a mistrial on the ground his motion to

suppress the feces covered mattress had been sustained by the trial court.

The court overruled the objection and motion for mistrial noting that there

was evidence independent of any search and seizure that would authorize

the question. Appellant now charges error to the trial court for

overrulina the objection and motion. He arques that this statement was

“clearly calculated to inflame the passion of the jury against the

defendant by mentioning matters of an inherently abhorrent nature.”

Evidence obtained by an illegal search and seizure is not admissible

against the defendant in a criminal case. If, however, the state gains

the same knowledge or evidence from an independent source it may become

admissible. State v. Wilkerson, 349 Mo. 205, 159 S.W.2d 794, 798 (1942).

There is evidence independent of the suppressed mattress cover to

support the cross-examination of the defendant on this matter. John

Campbell had previously testified that at the time of the murder he could

-12-

AX

smell the human waste. It was all over the sheets,

and the sheets and her kind of came off of the bed

the same time he pulled her

2 3 =

Q. Could you see anything on the bed?

A. You could see the human waste, yes.

The state's question was not designed to inflame the jury. Defen-

dant had taken the stand and denied strangling Karen Keeton. On gross

examination the state attempted and was successful in getting defendant

to admit that he had given an excuse to someone for the feces on the bed,

thereby acknowledging its presence and corroborating John Campbell's

testimony. The court properly permitted the state's question.

IV.

Section 565.014. 1, requires this Court to review a sentence of

death when imposed. Section 565.014.3 provides:

With regard to the sentence, the supreme court

shall determine:

(1) Whether the sentence of death was imposed under

the influence of passion, prejudice, or any other

arbitrary factor; and

(2) Whether the evidence supports the jury's or

judge's finding of a statutory aggravating circumstance

as enumerated in section 565.012; and

(3) Whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant.

The record in this case demonstrates that George Mercer's

death sentence was not imposed under the influence of passion, pre-

jyudice or any other arbitrary factor.

The jury found as statutory aggravating circumstances that the

"defendant, as an agent or employee of Stephen Gardner and at his

direction, murdered Karen Keeton", § 565.012.2 (6), and that the

murder of Karen Keeton involved deprivity of mind and that as a result

thereof it was outrageously or wantonly vile and inhuman, § 565.012.2 (7.4

This subsection provides:

(7) The offense was outrageously or wantonly vile,

horrible or inhuman in that it involved torture, or

depravity of mind;

-l3-

The evidence supports the jury's findings.”

Defendant forced kare Keeton, a total stranger, into a bedroom

aided by a sawed-off shotgun. There is evidence to show that he had

sex with Karen, and that he stated his intention to return for more.

He compelled her at gunpoint to perform oral sex on David Gee while

others watched. She expressed fear for her well-being to David Gee

and John Campbell. When Steve Gardner told defendant to "kill the

bitch", he agreed to do so. He grabbed her about the throat, choking

9 cont'd.

In Greag v. Georgia, 428 U.S. 153 (1976), the petitioner attacked

the Georgia aggravating circumstance which authorized imposition of the

death penalty if the murder was “outrageously or wantonly vile, horrible

or inhuman in that it involved torture, depravity of mind, or an aggravated

battery to the victim" contending that it was so broad that capital

punishment could be imposed in any such case. The Court denied the

challenge stating:

It is, of course, arquable that any murder involves

depravity of mind or an aggravated battery. But this

lanauage need not be construed in this way, and there is

no reason to assume that the Supreme Court of Georgia will

adopt such an open-ended construction.

Id. at 201.

Thereafter the Georgia Supreme Court recognized that “there is a possi-

bility of abuse of [this] statutory aggravating circumstance” and empha-

sized that it would not permit the aggravating circumstance to become a

“catch all” for cases not fitting within any other aggravating circum-

stance; the court stated it would restrict its “approval of the death

penalty under this statutory aggravating circumstance to those cases that

lie at the core.” Harris v. State, 237 Ga. 718, 732-33, 230 S.E.2d 1.

10-11 (1976) cert. denied, 431 U.S. 933 (1977). Likewise, it is the

intention of this Court to restrict application of § 565.012.2(7) to

“cases that lie at the core” and to not permit it to become a “catch

all” subsection.

. Although the evidence supports the jury's findings on both aggravat-

ing circumstances, this Court notes that in Georgia, whose death penalty

scheme serves as the pattern for Missouri,

Where two or more statutory aggravating circum-

stances are found by the jury, the failure of one

circumstance * * * does not taint the proceedings so

as to invalidate the other aggravating circumstance

found and the sentence of death based thereon.

Burger v. State, 245 Ga. 458, 265 S.E.2d 796, 800 (1980), cert. denied,

446 U.S. 986 (1980). See also Hamilton v. State, 246 Ga. 2764, 271 S.f.2d

173 (1980), cert. denied, U.S. „ 101 s. ct. 900 (1981); Brooks v.

State, 246 Ga. 262, 271 S.E.2da 172 (1980): Collins v. State, 246 Ga. 261,

271 S.E.2d 352 (1980), cert. denied, U.S. „ 101 s. ct. 900 (1981);

Gates v. State, 244 Ga. 567, 261 F.. d 349 (1575), cert. denied, 445 U.S.

938 (1980). But see Elledge v. State, 346 80. 2d 9 (Fla. 1977); Menendez

v. State, 368 56.702 1278 (Fla. 1979); Bufford v. 8 ate, 382 So.2d 1162

(Ala. App. 1980), cert. denied, 382 So.2d 1175 (Ala. 1980); State v.

Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941

(1980); Stephens v. Zant, 631 F.2d 397 (Sth Cir. 1580).

her; he struck her with his fists; finally, after having a friend

check her pulse, he succeeded in strangling her. After this he loaded

the body in a truck, drove to the country, and dumped the body beneath

a bridge.

In Godfrey v. Georgia, 446 U.S. 420 (1980), the Court held that

the Georgia Supreme Court had failed to apply a constitutional con-

struction of the phrase “outrageously or wantonly vile, horrible or

inhuman in that [they] involved . . . depravity of mind...., "

because the defendants crimes could not

be said to have reflected a consciousness materially

more ‘depraved’ than that of any person guilty of murder.

His victims were killed instantaneously. They were members

of his family who were causing him extreme emotional trauma.

Shortly after the killings, he acknowledced his respon-

sibility and the heinous nature of his crimes.

Id. at 1767. This case is unlike Godfrey v. Georgia, supra. “Depravity

of mind” is demonstrated in this case by the mode of killing preceeded

by extended sexual and psychological abuse of the victim. See Hance v.

State, 245 Ga. 856, 268 S.E.2d 339, 345-46 (1980), cert. denied,

49 U.S.L.W. 3443 (December 16, 1980).

The enumerated legal errors have been denied for the reasons

stated, and the statement of evidence prepared from the record

factually subs itiates the verdict. Section 565.014.7. The evidence

also supports the finding of the aqgqravatina circumstances and the

sentence of death by a rational trier of fact beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307 (1979).

This is the first capital murder case decided on appeal in which

the death penalty was imposed under the law effective May 26, 1977.

The records of all capital cases in which sentence was imposed after

the effective date, accumulated pursuant to § 565.014.6, have heen

reviewed. Those cases in which both death and life imprisonment were

submitted to the jury, and which have been affirmed on appeal are

considered as similar cases, § 565.014.5: State v. Mitchell. S.W.2d

— (o. banc 1981); State v. Williams, 611 S.W.2d 26 (Mo. banc 1981);

-15-

State v. Royal, 610 S.W.2d 946 (Mo. banc 1981); State v. Borden, 605

S.W.2@ 88 (Mo. banc 1980); and State v. Downs, 593 S. M. 2d 535 (Mo. 1930).

These cases support affirmance of the death penalty in this case; defen-

dant's sentence to death for the murder of Karen Keeton is not excessive

or disproportionate to the penalty imposed in similar cases considering

the crime and the defendant.

The judgment is affirmed.

ANDREW JACKSON HIGGINS, Judge

DONNELLY, RENDLEN, WELLIVER and

MORGAN, JJ., concur; BARDGETT, C. J.

concurs in part and dissents in part

in separate opinion filed; SEILER, J.,

dissents in separate dissenting opinion

filed.

Date of execution set for June 26, 1981.

47

APPENDIX

Harry Bumgarner:

“EXAMINATION BY MR. HAMILTON (Prosecutor):

o. Mr. Bumgarner, this is a charge of capital murder, which

means that it does carry the possibility of capital punishment, or the

death sentence. My inquiry is directed to find out what your attitude

is toward capital punishment. If, during the trial of this case the

facts and circumstances were developed that in fact the jury could

consider capital punishment, would you. as 4 juror, consider capital

punishment as a possible alternative?

A. 1 don't think so.

O0. Are you morally and religiously opposed to capital punishment?

A. Yes.

o. And you feel you couldn't bring back a sentence of -- the death

sentence under any circumstances?

A. 1 don't think so.

©. So regardless of how severe and aggravated the circumstances

are, you don't feel that you could bring back a death penalty?

A. 1 don't believe I could. ”

Rosalie M. Delange:

“EXAMINATION BY MR. HAMILTON (Prosecutor):

0. Mrs. Delange, this is a charge of capital murder, which

carries with it the possibility of capital punishment, which is the

death penalty.

> = & |

O. Basically I am interested in your attitude as to the death

penalty, and my question is: If the facts and circumstances which come

out during the course of this trial are such that the jury, under the

law, can consider as a possible alternative, capital punishment --

0. — would you, as a member of that jury, give consideration

to that as a possibility?

A. 1 am opposed to capital punishment.

Q. Okay, then are you basically morally and reliciously against

capital punishment as a punishment?

A. I would say that.

o. Are you such that basically, regardless of what the circumstances

are, you are against capital punishment?

A. 1 have always thought of myself as being against capital punish-

ment. I don't really know, when you put it that way, maybe circumstances

could alter my decision, but I really think 1 would have to say I'm

against it.

48

Oo. Am I correct in saying that basically you wouldn't vote for

capital punishment regardless?

A. 1 think, right, I would have to say that.

©. No matter how violent the crime might be, you would be against

that as punishment, am I correct?

A. 1 just don't believe in taking a life. I just don't. I'm

sorry.

22 „ „ *

O0. (By Mr. Lozano - Defense Counsel): — if -- can you say that

you would never consider capital punishment under any circumstances what-

soever?

A. 1 will say that.”

Flston Dalton:

“EXAMINATION BY MR. HAMILTON (Prosecutor):

O. Mr. Dalton, this is a charge of capital murder, which carries

a possibility of capital punishment ~~

0. — the death penalty. And my question is about your attitude

as to the death penalty. If the facts and circumstances in this trial

are such that under the law the jury can consider as an alternative the

death penalty, would you, as 4 member of that jury, be willing to con-

sider that as a possible alternative?

A. Well, I never did much like that subject.

o. tet me ask you the, * r, are you telling us that basically

you would be unwilling to retucn a death penalty verdict?

A. 1 believe I would sir.

©. Would you be willing to, oF be unwilling to, return such a

verdict regardless of what the evidence is?

A. I didn't understand you.

Q. Are you saying, sir, that you wouldn't return a result of

death, a death penalty result, regardless of what the evidence is?

A. Well, as I said, I don't believe in the death penalty.

Q. Basically the opposition is such that you vouldn't return it

under any circumstances, is that correct?

A. Yeah, that's the way I feel about ie. *

Juanita Bishop:

“EXAMINATION BY MR. HAMILTON (Prosecutor):

Q. Mrs. Bishop, this is a charge of capital murder, and it carries

with it the potential of the death penalty, the death sentence. Basic-

ally I am interested in your attitude as to capital punishment.

-2-

49

If the facts and circumstances brought out during the trial are

such that they justify it, justify the dealth penalty, would you consider

giving the death penalty?

A. (Pause) I don't think so.

0. Do you feel that your inclination is that morally and religiously

you don't feel you could bring back a sentence of death in any case?

A. Yes, I don't feel like I'd be a judge of it.

Q. You don't feel you could ever bring back the death penalty

regardless of the situation, is that correct?

A. Yes.

O. (By Mr. Lozano - Defense Counsel) Yes. Is your position that

you could never vote for capital punishment in any case at any time no

matter what the facts?

A. I'd say it is.

Priscilla Choate:

“EXAMINATION BY MR. HAMILTON (Prosecutor):

QO. Mrs. Choate, this is a charge of capital murder, and it carries

with it the possibility of the death sentence, or of capital punishment.

S „ „ *

O. Basically I am interested in inquiring of you as to what your

attitude is toward capital punishment, and my question is: If, during

the trial of the case the facts and circumstances that come forth as

evidence are such that under the law the jury could consider the death

penalty, would you, as a juror, consider the death penalty?

A. 1 don't believe in capital punishment.

O0. Are you opposed to capital punishment?

A. Yes, I am.

O0. Are you religiously and morally opposed to it?

A. Well, I don't know, its just my opinion. It's not really from

religion or anything like that.

Q. But it’s such that you feel that you would not bring back the

death penalty under any circumstances?

A. 1 don't think I would.

O. So, regardless of how severe or aggravated the situation is,

it's your feelings that you could not impose the death sentence?

A. I don't think so.

* „ „ *

THE COURT: Ma am, you say you don’t think so. We need to be a little

more precise.

That's just my own personal

MRS. CHOATE: Well, I couldn't, no.

feelings; I just couldn't do it.

S * ®#

Would

Mr. Fiorella - Defense Counsel) . .-

Q. {Examination by

use of your feelings?

that out [death penalty! beca

you rule

A. You mean corporal punishment?

Q. Yes.

A. Yeah, I believe I would. I just can't go along with it.

DUPLICATE

OF FILING ON

Messours MAY 1 1 1981

N OFFICE OF

CLERK SUPREME COURT

STATE OF MISSOURI,

Plaintiff-Respondent .

vs. No. 61797

GEORGE MERCER,

— — — —

Defendant -Appellant.

OPINION CONCURRING IN PART AND DISSENTING IN PART

1 concur in the affirmance of the judgment of conviction of

capital murder. I dissent from the affirmance of the death penalty

on the record here and would, for the reasons stated infra, vacate

this death penalty but allow the state to again proceed to obtain

the death penalty from a jury upon the state's notifying this Court

«within 30 days of its decision to do so. If the state failed to so

notify this Court of its intent to seek the death penalty anew, the

sentence of life imprisonment without parole for 50 years should be

imposed.

The proceedings in a capitel murder case are bifurcated and

error which affects only the punishment aspect of this crime warrants

4 new trial only as to punishment, as provided in § 565.006.3 RSMo

197

The evidentiary facts have been amply stated and clearly

support a verdict of guilty of capital murder. But, when the

punishment is death, then 1 believe strict compliance with consti-

tutional requirements and those statutes authorizing the death

penalty is mandatory. Death penalty cases are different from other

ises for that simple reason - death. It is not correctable, as arc

other sentences, and therefore strict adherence to procedure is

necessary. The fact that the defendant showed no mercy to the

deceased and appears to have committed just about as evil an act as

one could do does not justify law-abiding citizens - jurors, judges

and lawyers - from straying from strictly correct proceedings as we

go about the task of deciding whether to legally kill him.

1 agree with part I of Judge Seiler's dissent reference the

response to juror Bumgarner to questions relating to his ability to

consider the death penalty. For the reasons stated there the

juror's answers did not justify his removal for cause under Wither-

spoon v. Illinois, 391 U.S. 510 (1968). That error goes to the

death penalty only and therefore, under the bifurcated system, did

not prejudice the guilt part of the trial but did prejudice the

punishment aspect of the case for the reasons stated in Witherspoon,

supra.

Part IV of the principal opinion and part III of the dissent of

Seiler, J., addresses the issue of the statutory aggravating cir-

cumstances. It appears to me that the principal opinion holds that

there was sufficient evidence to find that the “defendant, as an

agent or employee of Stephen Gardner and at his direction, murdered

Karen Keeton," § 565.012.2(6). However, it also appears that

perhaps the principal opinion inferentially adopts the rule in

Georgia as set forth in footnote 5, which may mean that the death

penalty is to be upheld regardless of whether the “aggravating

circumstance” noted, supra, was supported by the evidence and per-

haps regardless of whether that circumstance can, under the evidence

nere, be rationally regarded as “aggravating.”

In my opinion, the evidence fails to support a finding that

defendant was an agent or employee of Stephen Gardner." There is

no evidence he was an employee of Gardner. There is no evidence, in

my opinion, that the defendant killed the deceased because Gardner

told him to. In fact, the state's position is that he killed her to

keep her from prosecuting him for rape as the other girl had done.

1 have tried to perceive just how a murder such as this is

worsened or the defendant a more heinous person if he killed the

2

deceased as an agent or employee of another. 1 have no difficulty

in understanding aggravating circumstance # 4 which provides for a

killing for profit for himself or another and the first part of # 6

which provides that the “offender caused or directed another to

commit capital murder.” Number 4 recalls to mind Murder Incorporated

of yesteryear and the first part of # 6 recognizes that if a person

causes or directs another to commit capital murder, the director is

surely at least as guilty as the actor. But I cannot see what the

rationale is when the actor is the employee or agent. How does it

make the act more heinous or the defendant more evil if the defendant

is being directed by another as the employee or agent of another? 1

am not saying the circumstance submitted here, as to the actor,

could never be an “aggravating ciccumstance” but under the facts of

this case 1 do not see any rational basis here for saying the verbal

exchange between defendant and Gardner made defendant's acts more

aggravated or heinous. In my opinion, the evidence was insufficient

to support the giving of aggravating circumstance 1 6.

Furthermore, I would not adopt the Georgia rule noted in

footnote 5 of the principal opinion. In my opinion, there must be

evidence to support the submission of each statutory aggravating

circumstance found by the jury and upon which the death penalty was

based. in whole or in part, and the statutory circumstances must be

ones that can rationally be perceived as aggravating in the particular

case. Circumstance # 6 should not, in my opinion, have been submitted

here because it fails on both counts in this case.

I agree with the rule requiring evidence to support each aggravat-

ing circumstance submitted as set forth in the dissent of Seiler, eer

and if the evidence is insufficient to support an aggravating cir-

cumstance upon which the jury based the death penalty, in whole or in

part, the death penalty cannot stand.

I would therefore (1) affirm the judgment of capital murder,

(2) vacate the death penalty and order that the sentence will be

entered as life imprisonment without parole for 50 years (565.008)

unless the state, within 30 days of this decision, notifies the

Clerk of this Court that it intends to proceed with a new trial on

punishment pursuant to § 565.006.3, whereupon the cause would be

remanded to circuit court for a new trial on punishment only.

John E. Bardgett, Chief Justice

Supreme Court of Missouri

en banc

DUPLICATE

°ATE OF MISSOURI, ) OF FILING ON

)

Plaintiff-Respondent, )

MAY 1 1 1981

* ) No. 61797

) IN OFFICE OF

cout MERCER, CLERK SUPREME COURT

)

Defendant-Appellant. )

DISSENTING OPINION

I respecttully dissent and for reasons stated below, 1 would

everse and remand this cause.

I

1 cannot agree with the principal opinion's treatment of appel-

artes objection to the striking for cause of venireman Bumgarner

„det Witherspoon v. Illinois, 391 U.S. 510 (1968). The principal

Jon found that Bumgarner had made it “unmistakably clear” that he

sould not impose the death penalty under any circumstance. In Wither-

. Supra at 516 n. 9, the Court required that

“Unless a venireman states unambiguously that he would auto-

matically vote against the imposition of capital punishment

no matter what the trial might reveal, it simply cannot be

assumed that that is his position.”

his requirement has been reiterated by the Court in Boulden v. Holman,

94 U.S. 479, 482 (1969) and in Maxwell v. Bishop 398 U.S. 262, 265

(1970).

In Davis v. Georgia, 429 U.S. 122, 123 (1976), the Court held that

„1 lone] venireman is improperly excluded {under the

Witherspoon standard] any subsequently imposed death

penalty cannot stand.”

The Davis court cited Wigglesworth v. Ohio, 403 U.S. 947 (1971) rev'g

State v. Wigglesworth, 18 Ohio St. 2d 171, 248 N.E.2d 607 (1969). In

hat case the United States Supreme Court appurently disapproved of

ne Ohio Supreme Court's conclusion that,

“Even if defendant could claim that the excusing of

this one juror for cause was error, we have difficulty in

seeing how any prejudice therefrom can be established,

especially since the prosecution still had five or six

peremptory challenges available to excuse that juror when

selection of the jury was completed.”

248 N. E. 2d at 614. If Bumgarner was improperly dismissed, as I contend

ic was, then the death penalty must be reversed.

The question and answers between the prosecuting attorney and

yvenireman Bumgarner are set forth below. This exchange does not pro-

vide a constitutional basis for the exclusion for cause of Bumgarner

from jury service.

"Oo. Mr. Bumgarner, this is a charge of capital murder,

which means that it does carry the possibility of

capital punishment, or the death sentence. My in-

quiry is directed to find out what your attitude is

toward capital punishment. If, during the trial of

this case the facts and circumstances were developed

that in fact the jury could consider capital punish-

ment, would you, as à juror, consider capital punish-

ment as a possible alternative?

A. 1 don't think so.

. Are you morally and religiously opposed to capital pun-

ishment? A. Yes.

Q. And you feel you couldn't bring back a sentence of -~-

the death sentence under any circumstances?

A. 1 don't think so.

O. So regardless of how severe and aggravated the circum-

stances are, you don't feel that you could bring back

a death penalty?

A. 1 don't believe I could.

MR. HAMILTON: Thank you, sir. I have no other

questions.”

The principal opinion relies on State v. Pride, 567 8. M. 2d 426, 433

(Mo. App. 1978) for the proposition that the response „1 don't think so”

is not equivocal in its context; rather, that it is “common vernacular

to express the negative". I would first point out that Pride was not 4

capital murder case in which the death penalty could be imposed. Pride

was an assault case, where defendant was a black man. The wife of one

>of the veriremen had had “an unpleasant encounter with blacks in the

past.” When asked if that would affect him in sitting in the case,

the venireman replied, “I don't really think so, but I thought I would

mention it.” This disclaimer is more emphatic than that in the case

before us. Second, while I would agree that when someone says "I

Jon“ t think so” he may intend to express the negative, he may also meen

that he is not sure. At best, it is equivocal, ambiguous, and uncer-

tain. Bumgarner did not say that he would not be able to decide th

issues on the basis of the law and evidence even though opposed genc:ai-

ly to capitel punishment. We are talking about taking defendant's lite

py Judicial order. In such circumstances, it is not the proper duty or

function of the trial court or this court to “interpret” such a phrase =

resolving the doubt in favor of the state when a man's life is at stake

and the United States Supreme Court has declared that

“unless a venireman states unambiguously that he would

automatically vote against the imposition of capital

punishment . . . it simply cannot be assumed that that

is his position.” (emphasis supplied)

$91 U.S. at len. 9.

Bumygarner’s view on the subject was left hanging in the air, unre-

svived. The Witherspoon test was not satisfied as to Bumgarner. if the

prosecutor does not get an unequivocal response, then he is not entitled

to have the venireman dismissed for cause. Cf. Adams v. Texas, 448 U.S.

38, __, 100 S.Ct. 2521, 2528-29 (1980) in which the Supreme Court said:

"(Neither nervousness, emotional involvement, nor inability

to deny or confirm any effect whatsoever [that being present

ed with the option to give death penalty would have on the

propective juror) is equivalent to an unwillingness or an in-

ability on the part of the jurors to follow the court's in-

structions and obey their oaths, regardless of their feelings

about the death penalty." (emphasis supplied).

11

on the issue of sustaining fifteen challenges for cause on the

ground that the venire persons were irrevocably committed against im-

posing the death penalty regardless of the circumstances, the principal

opinion holds it will not reverse the conviction on the basis of studies

andicating that “death qualified” jurors are not impartial on the issuc

f guilt. In addition to the studies cited by defendant and the

tudies cited in Hovey v. Superior Court of Alameda County, 28 Cal.3d

„ 616 P. 2d 1301, 168 Cal. Rptr. 128 (banc 1980) and Grigsby v. Mabry,

83 F. Supp. 1372 (E. b. Ark.), aff'd, 637 F.2d 525 (8 1 Cir. 1980),

here should be added White, Death-Qualified Juries: The Prosecution-

‘roneness Argument Reexamined, 41 U. Pitt. L. Rev. 353 (1980) and Oberer,

wes Disqualification of Jurors for Scruples Against Capital Punishment

onstitute Denial of Fair Trial on Issue of Guilt?, 39 Tex. L. Rev. 545

1961). The latter author states the defendant's predicament well:

Were I to be charged with a capital offense, I should greatly prefer

© have the issue of my guilt or innocence tried by the first twelve

eople to pass the courthouse, no questions asked by prosecution or

‘efense, than by a jury qualified upon the death sentence." Oberer,

‘upra at 545. (original emphasis). White, supra at 406, states: "If,

s the Supreme Court has indicated, the conclusion that death is a pun-

shment different in kind from all other punishments has committed our

ociety to the ideal of providing fair and rational procedures which will

ully safeguard the rights of capital defendants, then examination of the

elevant data should lead to the conclusion that the death qualified jury,

S it presently exists, should be eliminated from our system of justice.”

Under the Missouri Constitution, art. I, § 18(a), defendant is en-

itled to trial by an impartial jury. This is an absolute right. There

re no qualification or exceptions to it. The state is not entitled to

he death penalty against this defendant as a matter of right. All it

s entitled to is a jury which will consider the death penalty, assuming

‘wilt has been determined. I do not believe challenges for cause at the

mtset of the trial are valid unless the prospective juror declares that

is views on capital punishment are such as would prevent him from making

n impartial decision as to defendant's guilt. It does not follow that

sons opposed to the death penalty are necessarily thereby unable to

“ke an impartial decision as to defendant's guilt. But that was never

letermined here - the prospective jurors were excluded simply because

hey would not vote for the death penalty. So defendant wound up with

rr which had no scruples against the death penalty, which 3s a fat

ry from having a Jury with some members who oppose the death penal

ut con: nevertheless make an impartial decision as to guilt. This

rr exeluldang prospective jurors whe were not shown to be incapable

f makin an ampartaal decision as 10 quilt of amnocence requires that

Cte be reversed and remanded.

10 studies mentioned carlicr about death qualified juries beat:

„ that Went tl with respect to guilt contirm what lawyers with broad

bat ee at rey Lelseves st 85 asset to obtain a conviction

sort with @ jury which has no objections to the death penalty,

t ys at aS Caster to obtain a verdict in some amount for the plain-

ot ot ama“, Sut Wath „ jury Peato up only of those who have no ob-

tae. ** aud u large amounts of damages.

resent procedure permits prosecutors, merely by fiiang a

rer charg , te: Obtain @ dewth quadattod, convaction prone

e et they promptly waive the ct ath pomalty upon convict ion

321 as ie pepwertul picamtaves Cer cove roharge would be eliminated

we tract voir dire cxaminataon along the lines here suggestcd.

Lt ganu woulG provVade 2 more ampartiaal jury.

111

rener dasagree with the principal opinaon's holding that the

Cot moe supported the jury's finding of both agqyravating circumstances.

fob set peliewe that there was sufficient evidence to support the jury's

J hy ot the first sugravating circumstance - that defendant killed

victim as the “agent or employor” Gf Garcmed.

One 1966 study concluded that the odds were twenty-four to one

‘rat Jurors without scruples egainst the death penalty were more likely

te the Sorupded jurors te vote guilty. K. Zersel, Some Data on Juroi

‘tures Towards Capital vanishment 286-29 (1908).

. ivt example, a6 State v. Strickland, 609 . . 2d 392 (Mo. banc 1989)

cc State vw. Mall, No. 61796, (Mo. March 9, 1983), both from Jackson

Count), tne prosecutor in cach case after filing a capital murder charg.

an: obtainang a death qualified jury, waived the death penalty immediately

bitea ObPainang a guilty verdict on the guilt of innocence stage of th:

trial.

Section 565.012.3(6), RSMo 1978° lists as an aggravating circum-

stance that “The of fender committed capital murder as an agent or

employee of another person. Since there 15 no evidence that defendant

was an employee of Gardner, we must assume that the jury found defendant

was an agent of Gardner. Black's Law Dictionary 59 (5th ed. 1979) defines

an agent as A person authorized by another to act for him, one intrusted

witn another's business.” See State ex rel. Pagliara v. Stussie, 549

S. M. 2d 900, 903 (Mo. App. 1977). Black's, supra, also defines an agent as

“one who acts for or in place of another by authority from him; a sub-

stitute, a deputy, appointed by principal with power to do the things

which principal may do.” cf. Mahler v. Tieman, 550 S.W.2d 623, 628 (Mo.

App. 1977): “A valid agency may be found where the conduct of the parties

manifests the consent of one person to another that the other shall act

on his behalf and be subject to his control and consent by the other so

to act.” See also Restatement (Second) of Agency § 1 (1958).

The part of § 565.012.3(6) directed against one who commits capital

murder as the agent or employee of another is meant for someone who fits

the accepted concept of agent or employee. There is no evidence that such

was the situation here. The only evidence upon which the jury could have

based its finding that defendant was an agent of Gardner was that defen-

dant asked Gardner what to do with Karen Keeton and Gardner replied,

“ki 11 the bitch.” There is no evidence to demonstrate that Gardner had

authority or control over defendant. The fact that Gardner said to defcn-

dant, “Kill the bitch", followed by defendant's strangling of the victim,

does not establish a cause and effect relationship. It does no more than

show that the two were in accord. Without further evidence of an agency

relationship between Gardner and defendant, the first aggravating circum-

stance cannot be upheld.

The statute, § 565.012.1(1), and the appropriate MAI-CR2d instruction,

15.48, require that only those aggravating circumstances supported by the

3. Unless otherwise indicated, all statutory citations are to RSMo 1978.

evidence by submitted for the jury to consider. It would be most un-

fair and prejudicial to permit the state to submit and argue to the

jury aggravating circumstances not supported by the evidence. The

legislature and this court properly required that aggravating circum-

stances which the jury is to consider in determining whether the death

penalty is warranted be supported by evidence.

It the finding of the first aggravating circumstance is unsupported

under the evidence, as I contend it 15, then the sentence of death cannot

stand. When one or more aggravating circumstances have been improperly

submitted to, or found by, the jury (or the trial court), then, even if

other aggravating circumstances were legitimately found, the case must

be remanded for sentencing, § 565.014.5(2). The reason for this is

simple: IRlegardless of the existence of other authorized aggravating

factors we must guard against any unauthorized aggravating factor going

into the equation which might tip the scales of the weighing process

in favor of death.” Elledge v. State, 346 So.2d 998, 1003 (Fla. 1977);

See also Mencndez v. State, 368 So.2d 1278, 1282 (Fla. 1979). There 18

no way to determine what the jury would have decided as to penalty had

they not improperly been allowed to consider as an aggravating circum-

stance that defendant was acting as Gardner's agent. The jury may have

felt free to tar defendant with Gardner's reprehensible conduct in addi-

tion to his own. For other cases in which the courts have decided that

failure of one or more aggravating circumstances was cause for reversal

of the death sentence, see Bufford v. State, 382 So.2d 1162 (Ala. Ct.

Crim. App. 1980), cert. den., 382 So.2d 1175 (Ala. 1980); State v. Cherry,

257 8. E. 2d 551 (N.C. 1979), cert. den., 446 U.S. 941 (1980). See also

4. The prosecutor, in arguing to the jury for the death penalty, said

that Gardner told defendant to kill the victim, that defendant readily

went along with this, and that the jury should “[rjlemember that as an

important piece of evidence." So the jury was urged to consider the

“agent or employee” aggravating circumstance as a justification for

the death penalty. How can it be said they did not do s0?

ia Sais is 62

Stephans v. Zant, 631 F.2d 397, 406 (Sth Cir. 1980) in which the court

observed:

"It is impossible for a reviewing court to deter-

mine satisfactorily that the verdict in this case was not

decisively affected by an unconstitutional statutory

aggravating circumstance. The jury had the authority to

return a life sentence even if it found statutory aggrava~

ting circumstances. It is possible that even if the jurors

believed that other aggravating circumstances were estab-

lished, they would not have recommended the death penalty

but for the [considering of the invalid aggravating circum-

stance).”

The court held that the submission of an impermissible aggravating

circumstance to the jury did not permit the jury's discretion to be suf-

ficiently channeled, citing Godfrey v. Georgia, 428 U.S. 420 (1980), and

that the process by which the death penalty was imposed was therefore

not “rationally reviewable", citing Woodson v. North Carolina, 428 U.S.

280, 303 (1976).

The principal opinion cites several Georgia cases which uphold the

death penalty even after one, or more, aggravating Circumstance was founda

to be improperly considered. Georgia stands alone in arriving at this

result. The first four Georgia cases cited in footnote 5 of the princi-

pal opinion rely on the fifth case, Gates v. State, 244 Ga. 587, 261 S.E.

2d 349 (1979), cert. den. 445 U.S. 938 (1980). Gates, however, did not

address how an aggravating circumstance which had been improperly sub-

mitted to, or considered by, a jury may affect the decision-making process

of the jury; it merely makes the unsupported conclusion that,

“where two or more statutory aggravating circumstances

are found by the jury, the failure of one circumstance does

not so taint the proceedings as to invalidate the other

aggravating circumstance found and the sentence of death

based thereon.”

261 8. E. 2d at 358 (emphasis supplied). I question that a court can state

with certainty that a jury invariably based its imposition of a death

5. In arriving at this conclusion, the Gates court cited Gregg v. State,

233 Ga. 117, 210 S.E.2d 659 (1974), aff'd sub nom 428 U.S. 153 (1976).

Gregy, however, iS inapposite. In that, caso, there were two different

counts of capital murder. The death penalty had been given on both

counts. When the Georgia Supreme Court reversed the death penalty on

one count because of improperly submitted aggravating circumstances, it

affirmed the death penalty on the other count which was based on properly

found aggravating circumstances. “Such is a completely different situation

from Gates or the instance case.

63

penalty on any one of multiple aggravating circumstances when the jury

found multiple aggravating circumstances.

Furthermore, the principal opinion implies that our death penalty

statute is patterned after Georgia's and therefore it follows that we

should hold the same as Georgia. I cannot agree. This is Missouri,

not Georgia. Georgia's traditions and proclivities are not ours. Accord-

ing to the most recent Death Penalty Reporter (Vol. 1, No. 8) at p. 26,

ninety-two people are on death row in Georgia compared to eight in

Missouri. With all due respect to our sister state, we should not nec-

essarily walk Georgia's path just because our statutes are similar.

In any case, the similarity between our statute and Georgia's is

irrelevant here. Every state with a death penalty statute, including

the three which hold contrary to Georgia, permit consideration of multi-

ple aggravating circumstances. See, €-9-» Ala. Code tit. 13, §§ 11-4 and

ll-€ (1975); Fla. Stat. Ann. § 921.141 (Supp. 1981); N.C. Gen. Stat.

§ 15A-2000 (Supp. 1979). There 18 nothing peculiar about the Georgia in

this regard. The only peculiarity 15 that we are proposing to hold as

Georgia alone does. In my opinion, the reasoning found in the cited

cases from Alabama, Florida, North Carolina, the Fifth Circuit and in

the other cases discussed below does unanswered by both the Georgia

cases and the principal opinion.

Where one of the aggravating circumstances found by a death sen-

tencing jury is improper, the situation is analogous to one where a

yeneral verdict of guilty has been returned by a jury instructed on

alternative tneories of conviction, one but not all of which permitted

guilt to be rested upon an unconstitutional ground. Under Stromberg v.

California, 283 U.S. 359 (1931) and many cases following it, such a

conviction will not stand.

An analogy can be made to Missouri policy in civil cases that a

“jury should not be instructed on any theory of recovery or defense which

is not supported by the evidence „ Hounihaa v. State Farm Mutual

Automobile Insurance Co., 441 S.W.2d 58, 63 (Mo. App. 1969); See also

Committee's Comment to MAI 1.02, p. 7 (2nd ed. 1969):

“The Committee believes that the jury should not be

instructed on a theory or defense not supported by the

evidence and that any such submission should be reversible

error. A theory of recovery or defense should not be sub-

mitted unless it can stand alone. The present practice has

been a crutch which has done little but confuse by present-

ing imaginary issues for the jury's determination.”

Further, “[i]nstructions on issues not supported by any evidence

tend to authorize the jury to rove in reaching their verdict.” State v.

Higdon, 356 Mo. 1058, 204 S.W. 2 754, 755 (banc 1947).

In Chilton v. Wright, 480 S.W.2d 1, 6 (Mo. 1972), written by the

author of the principal opinion herein, the liquor license of Modene

Gatewood and Edd C. Chilton was revoked by the supervisor of liquor con-

trol on two grounds: (1) unlawful selling for resale and (2) unlawful

possession of refilled containers. Our review showed a lack of substan-

tial evidence to support the first ground, although there was substan-

tial evidence to support the second ground. The license revocation was

reversed and the cause remanded for reconsideration by the liquor super-

visor, for the reason that the license was revoked “on the strength of

two violations, one of which has been found unsupported”. The super-

visor was directed to reconsider the matter for assessment of penalty,

if any, on the basis of the single charge supported by the evidence.

In the Chilton case it was evident that the supervisor had revokec

the license on two grounds, but one was bad. It could not be determined

what he would have done had he limited his consideration to the only

violation shown. Likewise in the case before us, the jury, as required

by MAI-CR2d 15.46 and by the statute, § 565.012.4, set forth in its

verdict the aggravating circumstances found beyond a reasonable doubt.

The jury set forth two such circumatances. One of these circumstances,

however, the “agent and employee” circumstance, is unsupported by the

evidence. Here, as in the Chilton case, the death penalty (there it was

the liquor license revocation) was imposed "on the strength of two vio-

lations (aggravating circumstances), one of which has been found un-

supported.” If we reverse and remand for reconsideration where only a

liguor license is involved, surely we can do no less where a life is at

stake.

10

Submitting to the jury aggrevating circumstances not supported by

the evidence can only create confusion in the minds of the jurors and may

impermissibly tip the balance in favor of the death penalty. We cannot

say that the jury would have given defendant the death penalty in this

case had the agent or employee aggravating circumstance not been sub-

mitted. When the death penalty is before us, we should not affirm on the

basis of conjecture.

IV

While I agree with the avowal of the principal opinion that we should

not and will not permit § 565.012.2(7) to become a “catch all" subsection

on aggravating circumstances, I do not agree that we discharge our duty

under § 565.014.2(3) to determine “Iwjhether the sentence of death 1s

excessive or disproportionate to the penalty imposed in similar cases” by

restricting our consideration to cases in which both death and life im-

prisonment were submitted to the jury and which have been affirmed on ap-

peal. This is too limited in scope. It eliminates from consideration

all cases in which the state waived the death penalty, all cases in which

life imprisonment was given and no appeal taken, all capital cases pend-

ing before us in whach life amprisonment was given, and all cases in which

capital murder was charged but the jury found defendant guilty of a lesser

crime than capital murder. All these examples are cases in which the

jury convicted defendant of murder but chose not to impose the death

penalty. The purpose of appellate review of the death penalty is to

serve “aS a check against random or arbritrary imposition of the death

penalty.” Gregg v. Georgia, 428 U.S. 153 (1976). It is our solemn duty.

in my opinion, to guarantee that similar aggravating and mitigating cir-

cumstances do not bring about a death sentence in one case and life im-

prisonment in another. The statute and the Supreme Court cases require

that the death penalty be imposed with an even hand. Jurek v. Texas,

428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976). We are

required to make a proportionality review. Gregg v. Georgia, supra.

By “similar cases” is meant similar capital murders, not limited

11

only to those where both death and life imprisonment were submitted to

the jury and then affirmed on appeal, whichever way the case went on

punishment. The evil deed is the murder and what accompanied it and that,

as well as the defendant, is what must be looked at in comparing what one

defendant received in punishment under a capital murder charge with what

another received. The fact that a capital murder defendant does not get

the death penalty or gets a new trial or that the state waived the death

penalty in his case or that his case is still pending before us does not

mean that we can ignore his case in making our comparison. Once we accept

the idea, as we must, that the death penalty cannot be inflicted at randon,

or arbitrarily or inconsistently, then necessarily we must take into con-

sideration all capital murders we know about. We are furnished with a

special assistant for this purpose. Section 565.014.6. He is to accumu~

late the record of all capital cases in which sentence was imposed after

May 26, 1977. The statute says “sentence was imposed". It is not limited

to capital murders where the death sentence was imposed. As said in

Baldus, et al., Identifying Comparatively Excessive Sentences of Death:

A Quantitative Approach, 33 Stan. L. Rev. I. 20-21 (1980),

"The efficacy of the review procedure also depends on

the number of ‘similar’ cases used in the comparison

and the completness of the information available con-

cerning those other cases. In other words, the ap-

parent efficacy of the protection against comparative

excessiveness which proportionality review can theoret-

ically provide may be misleading. Whether defendants

sentenced to death really receive that protection depends

almost entirely upon the thoroughiess and accuracy of the

actual review process.

Realizing as I do that to do so is no easy task, nevertheless, the

prancipal opinion articulates no standard by which the review was made

in this case or how the cases mentioned in the opinion in which a life

sentence was given support the affirmance of the death penalty.

We see one capital murder case after another in which the killing

was horrible or atrocious or whatever other color word comes to mind and

in which the defendant received life imprisonment, not death. See, for

example, State v. Strickland, 609 S.W.2d 392 (Mo. banc 1980) (one victim

shot in the head; in an adjoining room three other people were tied up

12

and two of them were shot in the head; the third escaped when the gun

pointed to her head did not fire, although she was later hit with a shot-

gun blast; state waived death penalty); State v. Holmes, 609 S.W.2d 132

(Mo. banc 1980) (sixteen year old victim stabbed sixty-four times with an

ice pick; state waived death penalty); State v. Baskerville, No. 6166.,

pending before this court on life imprisonment sentence (multiple murders

including seven year-old boy and his mother; boy was last to be killed

and begged for his life).

In State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981), the 24 year-

old defendant was convicted, life sentence, aiong with another (see State

v. Turner, No. 61974, pending, life sentence) of the capital murder of

the owner of a tobacco store and his employee, aged 72 and 61 respectively.

The murders were committed in the course of a robbery. Both victims re-

ceived blows to the head with a blunt instrument, such as a beer bottle,

both had fractured ribs, and both received ltiple stab wounds, apparent-

ly from a broken beer bottle. One victim was stabbed fifteen times; the

other was stabbed five times in the chest and several times in the ab-

domen and other parts of the body.

In State v. Downs, 593 S.W.2d 535 (Mo. 1980), the defendant was

convicted of the capital murder of a married couple and their eighteen

year-old daughter, with a life sentence. The defendant and others rob-

bed the store owned by the couple and shot them each in the head. When

the duughter returned from her classes and approached an opened door she

was grabbed by defendant and another and pulled into the store where her

parents lay dead. The girl fell to her knees and begged for her life.

The defendant put a gun to her head and shot her.

It seems to me that what Mr. Justice White concluded in Furman v.

Georgia, 408 U.S. 238, 313 (1972) (concurring) remains the fact. He said

there that

“{t)he death penalty is exacted with great infrequency

even for the most atrocious crimes and that there is no

meaningful basis for distinguishing the few cases in

13

which it is imposed from the many cases in which it is

not.”

As said at the outset, I would reverse and remand for a new trial.

Robert E. Seiler, Judge

14

THOMAS FT SIMON

ate

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In

re:

Cet Ru OF THE SUPREME CoLR?

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fcllowine ore

State

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STATE OF MISSOLRI

POST OFFICE BOA 150

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Jerrersorn City. s Soc.

65102

of Missouri ve. Gecrge Mercer

Court Ke. 61797

tc advise that the Court this de;

er ir. the above entitled cause

2 4 — * * * * 20 * — *

Very truly yours,

— ewes

Best Copy Available

— — —

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i.e FL aes

APPENDIX E

(Voir dire examination. State of Missouri v. George Mercer)

THE COURT: Your are Juanita Bishop?

MRS. BISHOP: Yes.

THE COURT: Mrs. Bishop, Mr. Hamilton will have some questions to ask

you, then one of these gentlemen will have some questions for you.

EXAMINATION BY MR. HAMILTON:

Q. Mrs. Bishop, this is a charge of capital murder, and it carries with it the

potential of the death penalty, the death sentence. Basically, | am inter-

ested in your attitude as to capital punishment.

If the facts and circumstances brought out during the trial are such

that they justify it, justify the death penalty, would you consider giving

the death penalty?

A. (Pause) I don't think so.

Q. bo you feel that your inclination is that morally and religiously you

don't feel you could bring back a sentence of death in any case?

A. Yes, I don't feel like I'd be a judge of it.

Q. You don't feel you could ever bring back the death penalty regardless of

the situation, is that correct?

A. Yes.

MR. HAMILTON: I have no other questions, Your Honor.

MR. LOZANO: I have a few questions.

EXAMINATION BY MR. LOZANO:

A. Can you imagine a situation where perhaps someone known to you, like, say,

would under certain circumstances be brutalized in some fashion, and as a

result of that lose their lives, would something like that make a differ-

ence?

MR. HAMILTON: I will object in that it is personalizing the inquiry.

THE COURT: I'm inclined to think if it was someone known to her, she

probably wouldn't be allowed to serve on the jury anyway, Mr. Lozano.

MR. LOZANO: Okay, Judge.

Q. (By Mr. Lozano) Then let me ask it this way: Are there any situations in

your head, in your thinking and your imagination, where you feel maybe

Capital punishment would be warranted?

S 2 2 „

(Pause) Not to my knowledge. I really haven't thought about it that much.

When you read things in the newspapers sometimes about again man's inhu-

manity to man, do you continue to be surprised about what one man will do

to another?

I really don't read the paper enough to draw an opinion about that.

Okay. Is what you are saying is that under no circumstances--let me

back up.

If you were convinced beyond a reasonable doubt that an individual

had committed some horrible deed, maybe even beyond your imagination, and

you were convinced of that situation, in that type of situation would you

still completely rule out capital punishment?

1 don't know how I could be convinced unless I would see it happen.

Anything less than seeing it happen would--

Not that I can think of right now.

I understand that nothing you can think of, but is your position that you

could never bring, never vote for capital punishment in any case whatso-

ever at any time?

MR. HAMILTON: Excuse me, I will object. The question has been asked

and reasked a half a dozen times.

MR. LOZANO: I don't think it's been asked that way, Judge.

THE COURT: You may answer the question, ma'm.

MRS. BISHOP: Do you want to restate your question?

(By Mr. Lozano) Yes. Is your position that you could never vote for

capital punishment in any case at any time no matter what the facts?

i'd say it is.

Thank you. Have you lived in Greene County long?

All my life.

Are you acquainted with the Cass County, Belton City area of Cass County,

up north around Kansas City?

Just know the area, but I'm not acquainted there.

Are you a housewife?

Yes, and I work, too.

You are employed outside the home?

un ham.

> oP oP 2

What do you do?

I work in an office.

What is your position?

I work in Sales Service Department, as a sales service clerk.

If you had your druthers, would you druther not sit on this jury?

Well, yes, I would rather not.

MR. LOZANO: Thank you very much. I have no further questions.

THE COURT: Mrs. Bishop--Mr. Hamilton, do you have any other

questions?

MR. HAMILTON: No.

THE COURT: Could we ask you to have a seat outside the door for a

moment , ma m?

(Venireman leaves room.)

THE COURT: Any chullenge for cause on Juanita Bishop?

MR. HAMILTON: The state challenges for cause.

THE COURT: State your challenge.

MR. HAMILTON: That she is unequivocally opposed to the death penalty

under any facts or circumstances. Therefore, she wouldn't be able to

follow the law, which in this case is that the death penalty could be

given.

THE COURT: bo you have any comment?

MR. LOZANO: Yes, I do, Your Honor.

Judge, she's constitutionally entitled to be stricken if she's going

to be by peremptory vote rather than by challenge for cause. There are

a significant number of citizens in this county, in this state, in this

city, who have a voice. She is part of the cross-section of this comu-

nity. To permit a challenge for cause and to grant a challenge for cause

under these circumstances would be to say that the state is more entitled

than not to people who would vote the death penalty when not one word of

evidence has been taken as yet.

It is the defense's position that she is entitled to sit on the jury

by reason of being a representative portion of her commmity.

We would, therefore, say if the Court sustains a challenge for cause,

Mr. Mercer will be denied a cross-section of the commmity and will be

denied his rights under the 6th and 14th Amendments of the United States

Constitution and the similar portions under the Missouri Constitution.

THE COURT: The state's challenge for cause against the panel member,

Juanita Bishop, is sustained. The lady will be and is excused for cause.

(venireman excused) (Tr. 112-118)

THE COURT: You are Harry Bumgamer?

MR. BUMGARNER: Yes, sir.

THE COURT: Mr. Bumgarmer, Mr. Hamilton here will have some questions

for you, then one of these gentlemen will have some questions for you.

EXAMINATION BY MR, HAMILTON:

Q. Mr. Bumgarner, this is a charge of capital murder, which means that it

does carry the possibility of capital punishment, or the death sentence.

My injuiry is directed to find out what vour attitude is toward capital

punishment. If, during the trial of this case the facts and circumstances

were developed that in fact the jury could consider capital punishment,

would you, as a juror, consider capital punishment as a possible altema

tive?

I don’t think so.

Are you morally and religiously opposed to capital punishment?

Yes.

9 2 9 „

And you feel you couldn't bring back a sentence of--the death sentence

under any circumstances?

A. I don't think so.

Q. So regardless of how severe and aggravated the circumstances are, you

don't feel that you would bring back a death penalty?

A. I don't believe I could.

MR. HAMILTON: Thank you, sir. I have no other questions.

MR. FIORELLA: We would have no questions of Mr. Bumgarner.

(Venireman excused. )

THE COURT: Any challenge for cause against Harry Bumgamer?

MR. HAMILTON: The state challenges him for cause.

MR. LOZANO: Our position on the previous grounds, Judge.

THE COURT: The state's challenge of Harry Bumgarner for cause is

granted. He will be excused for cause. (Tr. 168-170)

THE COURT: You are Priscilla Choate?

MRS. CHOATE: Yes.

THE QOURT: Mrs. Qhate, Mr. Hamilton here will have some questions

for you, then one of these gentlemen will have some questions for you.

MRS. CHOATE: All right.

EXAMINATION BY MR. HAMILTON:

Q.

Pr - P P

Mrs. Choate, this is a charge of capital murder, and it carries with it the

possibility of the death sentence, or of captial punishment.

Un-hmn.

Basically I am interested in inquiring of you as to what your attitude is

toward capital punishment, and my question is: If, during the trial of

the case the facts and circumstances that come forth as evidence are such

that under the law the jury could consider the death penalty, would you,

as a juror, consider the death penalty?

I don't believe in capital punishment.

Are you opposed to capital punishment?

Yes, I am.

Are you religiously and morally opposed to it?

Well, 1 don't know, it's just my opinion. It's not really from religion

or anything like that.

But it's such that you feel that you would not bring back the death pen-

alty under any circumstances?

I don't think I would.

So, regardless of how severe ä the situation is, it's your

feelings that you could not impose the death sentence?

I don't think so.

MR. HAMILTON: Thank you.

THE COURT: Ma'am, you say you don't think so. We need to be a little

more precis“.

MRS. CHOATE: Well, I couldn't, no. That's just my own personal feel-

ings; I just couldn't do it.

THE COURT: All right, ma'am, that is the purpose of these questions.

EXAMINATION BY MR, FIORELLA:

Q. Mrs. Choate, let me ask you this: Do your personal — would they in

any way prevent you from at least listening to the instructions and giving

the death penalty a consideration in your deliberations? I mean, would

you totally rule out that possibility before you heard the evidence?

A. I believe I would. I believe a person should be punished, but I can't--I

can't go along with taking someone's life; I just can't do it. I mean,

that's just my belief.

Q. Let me ask you this, and this is somewhat of a hypothetical question, but

if, in fact, the Court instructed you to go to the jury room with the other

members of the jury and deliberate and consider the evidence, and if, fur-

ther as part of the instructions, the Court indicated to you that if you

reached a verdict, unanimous verdict of guilty, finding Mr. Mercer guilty

of the charges, that you had the right to consider a certain range of punish-

ment and that punishment could also include, if the jury desired, the death

penalty, would you, as one of those jurors, because of your convictions,

totally rule out any consideration on your part as far as considering that

as a penalty that you might consider as a juror? Would you rule that out

because of your feelings?

A. You mean corporal punishment?

Q. Yes.

Yeah, ! believe I would. I just can't go along with it.

MR. FIORELLA: Thank you, Mrs. Choate. We appreciate your candor

about that.

THE COURT: Any challenge for cause of Priscilla Choate?

MR. HAMILTON: Yes, the state challenges her, Your Honor.

MR. LOZANO: Note our opposition, Your Honor, on the previously

stated grounds, adding one other, that the state, contrary to the Sixth

Amendment of the United States and contrary to statutes, is by the process

of challenge for cause being permitted extra strikes which would have been

peremptory strikes, and the defense is not given the equal right to an

added number.

THE COURT: The challenge will be allowed. Pris<:lla Choate will be

excused for cause (Tr. 170-773)

— - — —-.

THE COURT: You are Elston Dalton?

MR. DALTON: Yes, sir.

THE COURT: Mr. Dalton, Mr. Hamilton here will have some questions for

you, and then one of these gentlemen will have some questions for you.

EXAMINATION BY MR. HAMILTON:

Q.

Mr. Dalton, this is a charge of capital murder, which carries a possibility

of capital punishment--

Um- hn.

--the death penalty. And my question is about your attitude as to the death

penalty. If the facts and circumstances in this trial are such that under

the law the jury can consider as an alte mat ive the death penalty, would

you, as a member of that jury, be willing to consider that as a possible

al te mat ive?

Well, 1 never did much like that subject.

Let me ask you then, sir, are you telling us that basically you would be

unwilling to return a death penalty verdict?

I believe I would, sir.

Would you be willing to, or be unwilling to, return such a verdict regard-

less of what the evidence is?

I didn't understand you.

Are you saying, sir, that you wouldn't retum a result of death, a death

penalty result, regardless of what the evidence is?

Well, as I said, I don't believe in the death penalty.

Basically the opposition is such that you wouldn't return it under any cir-

cumstances, is that correct?

Yeah, that's the way I feel about it.

MR. HAMILTON: That's all I have, Your Honor, thank you.

MR. LOZANO: No questions, Your Honor.

(Venireman excused. )

TIME COURT: Any challenge for cause?

MR. HAMILTON: The state would ask that he be struck for cause,

Your Honor.

MR. LOZANO: The defense has the obgections as earlier made. Will

the Court permit it to be made that way?

THE COURT: Yes.

MR. LOZANO: Continuing objection.

THE COURT: Challenge is sustained. Elston Dalton is excused for

cause. (Tr. 235-237)

„ * * * 7

THE COURT: You are Rosalie Delang?

MRS. DELANGE: Yes.

THE COURT: Mrs. Delange, Mr. Hamilton will have same questions for

you, and then these gentlemen will have some questions for you.

MRS. DELANGE: All right.

EXAMINATION BY MR. HAMILTON:

Q.

Mrs. Delange, this is a charge of capital murder, which carries with it the

possibility of capital punishment, which is the death penalty.

Un-hmn.

Basically, I am i: terested in your attitude as to the death penalty, and

my question is: If the facts and circumstances which come out during the

course of this trial are such that the jury, under the law, can consider

as a possible alternative, capital punishment --

Um- hmm.

--would you, as a member of that jury, give consideration to that as a

possibility?

I am opposed to capital punishment.

Okay, then are you basically morally and religiously against capital punish-

ment as a punishment?

I would say that.

Are you such that basically, regardless of what the circumstances are, you

are against capital punishment?

I have always thought of myself as being against capital punishment. |

don't really know, when you put it that way, maybe circumstances could

alter my decision, but I really think I would have to say I'm against it.

Am I correct ia saying that basically you wouldn't vote for capital punish-

ment regardless?

I think, right, I would have to say that.

No matter how violent the crime might be, you would be against that as a

punishment, an I correct?

I just don't believe in taking a life. I just don't. I'm sorry.

MR, HAMILTON: Fine, I have no other questions.

EXAMINATION BY MR. LOZANO:

Q.

A.

Mrs. Delange, what Mr. Hamilton is wanting to know and what we are wanting

to know is, can you imagine of any circumstance wherein a specific instance

you might consider capital punishment’

1 suppose that if--if it were committed, the crime were committed against

some one of my family, say, I would probably have to change my mind about

that. That's really the only thing I can think of right now.

So, Mrs. Delange, it cannot be said of you that under no circumstances

would you ever consider capital punishment?

Well, I've always said under any circumstances, but you've got me there.

I was just thinking of that circumstance, | would be hard-put to maybe--

1 hate to be so long, I was just trying to think.

That's all right.

(Pause) I had never thought of it that way. I just--I still say that |

don't believe, even that may be a- I think I would just stand by my gums.

1 don't believe in taking a life.

I understand that, but, of course, you mentioned that your family situation

was different.

Well, yes, I thought at first, and then I think it really to me doesn't

accomplish that much.

I know, whether it accomplishes anything or not, the question is really

directed at whether or not you can serve on this jury.

I see.

Of course, if you absolutely mot under any circumst

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