Opposition — Mercer v. Missouri

ORIGINAL

RECE.VED

NO. 81-5189 SEP

( 4 , 8 1981

OFFICE OF THE ¢

re IN THE SUPREME couNr us

SUPREME COURT OF THE UNITED STATES

OCTOBER, TERM, 1981

GEORGE MERCER,

Petitioner,

Vv.

STATE OF MISSOURI,

Respondent.

PROCEEDINGS ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

BRIEF FOR RESPONDENT IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

JOHN ASHCROFT

Attorney General

PAUL ROBERT OTTO

Assistant Attorney General

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

ATTORNEYS FOR RESPONDENT

-

TABLE OF CONTENTS

AUthOritieS....ccccccccesrereseseeeseeseeesssepeeessseseee

Summary Of ArGuMENt... cece ec eeeeereeerceesenesessssessese

AXQUMENE. 2... cece cece eee eee e eter see eeneeeeeeeenessesseees

EOI SED hi 2. WA ee a Se RES EON or

Certificate Of SEFViCe... ccs weer ence eee ereeererereeesenes

Appendix Meee seseeeseeeSeSeSeSsSSaseoesecoeeseosneeseeoseesoesees

iv

15

‘ TABLE OF AUTHORITIES

Berger v. State, 265, S.E.2d 796 (Ga. 1980); cert.

denied, 100 Saclote 2975 (1980) .cccccccccccesecccccesece 12

Blake v. State, 236 S.E.2d 637 (Ga. 1977); cert. denied,

434 U.S. 960 CLOTTD coccccceceeeeseceeesessecoeceseses ll

Blake v. State, 260 S.E.2d 876 (Ga. 1979); cert. denied,’

100 S«cGee 2974 (1980) . cc cccceccceccesescscesesesesess 12

Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d

433 (1969) . cc cccccceseresseresseesssesesesesssseseses 3,

Darden v. Wainwright, 513 F.Supp. 947 (M.D. Fla. 1981).... 2

Dobbert v. State, 375 So.2d 1069 (Fla. 1979); cert. denied,

100 s.Ct. 3000 SBOE ok dn dnuhetceelessepeeeseesosens 12

Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d

579 (1979) . ccc cee c cere ee ee eee eee rereseeeeseesseeseees 6,

Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d

398 (19BO) . ccc cc ewe weer e eee mene ene rweeeeeeeseeesseees 3,

Government of Virgin Islands v. Gereau, 502 F.2d 914

(3rd Cir. 1974); cert. denied, 420 U.S. 909 (1975)... 3

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d

859 (1976) . cc ccc were were errr reese seeeeeeeeeeeseeeeee 10,

Grigsby v. Mabey, 483 F.Supp. 1372 (E.D.Ark. 1980);

rev'd on other grounds, 637 F.2d 525 (8th Cir.

1980 eeeeceseeeeeeeeeeeeeeeeeeeeeee2e2e20200020202002 0200008000808 8

Harris v. State, 230 S.E.2d 1 (Ga. 1976); cert. denied,

431 U.S. 933 (1977) cccccccccccsesececesecvcsseceesese Li,

Holton v. State, 253 S.E.2d 736 (Ga. 1979); cert. denied,

100 S.Ct. 263 (1979) .ccccccenesccereseseseetesessssss De

Hovey v. Superior Court, 616 P.2d 1301 (Cal. 1980)... -ee 7

Lear v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d

610 (1969) ccc cee cere e eee ereer areas eeseeeeeeseseesesee 14

Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d

973 (1978).... nr ef @ © eee eeveeeeeeeeeeeneeenereenee “ene veo eevee 7

Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26

L.Ed.2d 221 (1970) ccc ccc creer ere rereesesssesesesses 3,

People v. Henderson, 145 Cal.Rptr. 751 (Cal.App. 1978).... 7,

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49

L.Ed.2d 913 (1976) .cccccccses ef 8 © “eevee enenevrenereeereeeeenee ll

Rutledge v. State, 373 So.2d 975 (Fla. 1979); cert.

denied, 100 S.Cee. 1844 (1980) .ccccccccceseseseseseces 12

Simmons v. West Haven Housing Authority, 399 U.S. 510,

90 S.Ct. 1960, 26 L.Ed.2d 764 (1970). ...eeeeeeeeenees 14

Sprinkellink v. Wainwright, 578 F.2d 582 (Sth Cir. 1978);

cert. denied, 440 U.S. 976 (1979)....+-+-- ecececcece eee 7

State v. Avery, 261 S.E.2d 803 (N.C. 19GO) cccccccccsccecs ° 8

ll

12

10, 13,

14

State Vv. Elliott, 267 N.E.2d 806 (Ohio BDTEDé beooceeeséoess 4

State of Missouri v. George C. Mercer, No. 61797 (Mo. banc

May ll, L9B1L) Lc ccc w cece werner eee eereeeeeseesesseees Be 10,

State v. Pride, 567 S.W.2d 426 (Mo.App., St.L.D. 1978).... 4, 5

Tacon v. Arizona, 410 U.S. 351, 93 S.Ct. 998, 35 L.Ed.2d

346 (1973) ccccccccccecescccecebececseesceseseesecceove 9, 14

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d

690 (1975) wcccccccccccesesccecececcecsesecesceesccecs 7, 8,

United States v. Gibbons, 607 F.2d 1320 (10th Cir.

(1979) cc ccc ccccrccceccesesccsesseseesessessssseseeses 3

United States v. Gullion, 575 F.2d 26 (list Cir. 1978)..... 3

United States v. Ploff, 464 F.2d 116 (2nd Cir. 1972)...... 3

United States v. Sutton, 446 F.2d 916 (9th Cir. 1971);

cert. denied, 404 is - 1025 CRUE 6 6 6666660066 0608628 3

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20

LEG. 2d 776 (1968)... cc cccccrccvccesceseeesessesssess 2, 3,

6, 7,

U.S. Constitution, Amendment VI......ceeeeeceeess ecccccccce 6, 7

U.S. Constitution, Amendment XIV....... TYTTTTELITIT CTT TTT 6, 7

Section 565.012, RSMO 1978... ..cceccacsecceveccees cocccscoe IO, 14

Rule 17, U.S. Supreme COUrt...cececeeeeceeeecserevessesens Ll, 7

Rule 21, 0.6. Supreme -. 4 rrr, eT rye Tree reecrreceliiy fo. 7

SUMMARY OF ARGUMENT

I.

The Missouri Supreme Court did not decide a federal question

in a way in conflict with the applicable decisions of this Court

when it affirmed the decision of the trial court to strike for

cause certain venirepersons who could not consider imposing the

death penalty under any set of circumstances, because the Missouri

courts utilized the correct standard to determine who should be

excluded as stated in Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 E.Ed.2d 776 (1978), and because the Missouri

Supreme Court applied, in a logical manner, traditionally accepted

principles in reviewing the trial court's decision as to whether

or not the venirepersons stated their positions in a sufficiently

clear and untquivocal manner.

‘

II.

The Missouri Supreme Court did not decide a federal question

in a way in conflict with the applicable decisions of this Court

when it affirmed the trial court's refusal to find that the jury

in the instant case was chosen in conflict with the requirement

of the Sixth Amendment, that the method by which the jury panel

was chosen did not exclude an identifiable segment of the community,

because this Court has already decided the question in Lockett v.

Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), to the

effect that excluding venirepersons who cannot impose the death

penalty under any set of circumstances in capital cases does not

deny a defendant his right to have a jury chosen from a cross-~-

section of the community; and, because there were no facts developed

in the state courts to show that the excluded venirepersons

belonged te an identifiable group within the community of the

trial and that the group was under-represented in the jury selection

process.

III.

The Missouri Supreme Court did not decide a federal question

in a way in conflict with the applicable decisions of this Court

when it found that the facts of this case put it at the “core" of

those cases covered by the languagé of the “depravity cf mind”

aggravated circumstance found in § 565.012.2(7), RSMo 1978,

because the Missouri Supreme Court followed the analysis of this

Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d

859 (1976), and Godfrey v. Georgia, 446 U.S. 420, 100 S.ct. 1759,

64 L.Ed.2d 398 (1980), in that the Missouri court specified

exactly why this case fell within the criteria of that aggravating

circumstance, identified the facts of the case supporting this

finding and compared this case to other Missouri capital cases.

As to the petitioner's challenge to the aggravating circumstance

contained in § 565.012.2(6) as mentioned in his third Question

Presented, this Court should not review the issue because the

petitioner did not raise it in state court nor does he develop

the point with any argument contained in the petition for writ of

certorari filed in this Court.

ARGUMENT

I.

Petitioner complains that the Supreme Court of Missouri

should not have upheld the striking for cause of five venirepersons

during the voir dire proceedings. Petitioner claims that the

Missouri court gave an unwarranted interpretation to the voir

dire persons’ answers in that the court found the answers were

unmistakably clear as to the voir dire persons’ unwillingness .0o

impose the death penalty under any circumstances. Petitioner

contends that the answers were ambiguous. Petitioner makes no

claim that the Missouri court formulated an incorrect standard by

which to measure the voirdire persons’ commitment against the

death penalty but complains only of the unwarranted significance

given to their answers.

Respondent contends that the writ of certorari should not

issue because the Missouri courts have not decided “a federal

question in a way in conflict with applicable decisions of this

Court." Rule 17.1(c), Supreme Court Rules. This particular

issue presents no application of an erroneous principle nor does

it present a situation of an incorrect application of a proper

principle. The Missouri courts used all the traditionally accepted

means of evaluating the clarity of the answers and of reviewing

the trial court's initial decisions in these matters. Whether or

not the answer was unequivocal involves a matter of judgment to

which there can always be some measure of dispute. Given the

fact that the Supreme Court of Missouri made a rational application

of correct principles in reviewing the trial court's action,

no writ should issue to review his question.

As the opinion issued by the Missouri Supreme Court shows,

it correctly recognized the standard to be used in judging whether

or not jurors can be stricken for ceuse because they are unwilling

to consider assessing the death penalty no matter what the circum-

stances may be. State of Missouri v. George C. Mercer, No. 61797

(Mo. banc May 11, 1981), at pages 7-8 (Petition Appendix C). In

finding that the answers were sufficiently unequivocal to meet

the standards set out in Witherspoon v. Illinois, 391 U.S. 510,

88 S.ct. 1770, 20 L.Ed.2d 776 (1968), the court based its judgment

on several factors: (1) the trial court's understanding of the

Witherspoon issue; (2) the trial court's observation of the

demeanor of the participants in the voir dire examination; (3)

the fact that lay people have a difficult time expressing them-

selves with clarity concerning complex questions; and, (4) the

Supreme Court's own review of the record. See page 8 of the

Mercer slip opinion. As the following discussion will show,

these factors are acceptable means by which courts review such

questions and were applied logically by the Supreme Court in this

case.

In regard to the first factor, the trial court's professed

understanding of the Witherspoon issue is an important factor to

show the correct application of the rule. See Darden v. Wainwright,

513 F.Supp. 947, 959 (M.D.Fla. 1981). At the trial of the instant

case, the judge and parties agreed after some discussion on the

principle that a venireperson 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, .. .". As the examinations of the

disputed voir dire persons’ show (attached as an appendix to the

Petition in the instant case), all voir dire people were asked

the proper questions under Witherspoon.

The Supreme Court's reliance on the trial court's ability to

observe the demeanor of the participants in the questioning

is a traditionally accepted method to determine the correctness

of a trial court's rulings. In order for a venireperson to be

properly excused for unwillingness to consider the death penalty

under any circumstances, that person's answer must be “unmistakably

clear" in that regard. Although this perhaps requires more

certainty than do answers in non-capital cases to questions

concerning the ability of the jurors to follow the law, no court

has ever held that the standard of appellate review of the trial

court's decision cannot take into consideration the fact that the

trial court observed the demeanor of the participants in the question-

ing in order to indicate the correctness of the trial court's ruling

in death penalty cases. There has never been any requirement

that the certainty of the voir dire person concerning the Witherspoon

issue be able to be determined solely on a cold record without

regard to the context of the answer and the demeanor of the

person answering the questions.

The principle that courts of review may give considerable

deference to trial court determinations in issues regarding strikes

for cause is well ingrained not only in Missouri law but also in

federal appellate law.

“There are few aspects of a jury trial

where we would be less inclined to disturb a

trial judge's exercise of discretion, absent

Clear abuse, than in ruling on challenges for

cause in the empanelling of a jury." United

States v. Ploof, 464 F.2d 116, 118, n. 4 (2nd

Cir. 1972), as quoted in United States v.

Gullion, 575 F.2d 26, 29 (ist. Cir. 1978).

Accord, United States v. Sutton, 446 F.2d 916, 923 (9th Cir. 1971);

cert. denied, 404 U.S. 1025 (1972). All of these are non-capital

cases.

This principle has been based on the fact that the trial court

is in the best position to judge the effect of statements and the

sincerity of a juror'’s comments. United States v. Gibbons, 607 F.2d

1320, 1330 (10th Cir. 1979); Government of Virgin Islands v. Gereau,

502 F.2d 914, 934 (3rd Cir. 1974); cert. denied, 420 U.S. 909 (1975);

and, United States v. Ploof, supra, at 118.

Words such as "I don't think" and “I believe" may be very

emphatically stated and indicate a firm and unwavering belief.

They do not necessarily express equivocation. Tone of voice,

facial expressions, and the context of the questioning all play a

great part in determining the meaning of such words. These

principles were inferentially recognized by this Court in its

handling of the cases of Boulden v. Holman, 394 U.S. 478, 89

S.Ct. 1138, 22 L.Ed.2d 433 (1969), and Maxwell v. Bishop, 398

U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970). This Court re-

viewed the allegations that venirepersons were excused for cause

in a death penalty case even though they had not stated unequivocally

that they would not inflict the death penalty under any circumstances.

The trials had taken place before the holding of Witherspoon.

This Court expressed grave doubts about the equivocal nature of

certain answers given by venirepersons but refused to make a

final determination or to vacate the death penalty on that basis.

Because this Court was the first court in which the allegations

were brought up, the cases were remanded to the federal district

court to permit a further record to be made. This Court recognized

that other facts might modify the conclusions which this Court

felt impelled to reach concerning the voir dire examinations.

Boulden v. Holman, supra, 394 U.S. at 483-484; Maxwell v. Bishop,

supra, 398 U.S. at 266-267.

It should be recognized that lay people are not used to

expressing their deeply held beliefs in the formal and rather

antagonistic atmosphere of a courtroom in a cogent and emphatic

manner which comports with the principles of clarity demanded of

courts and lawyers. State v. Pride, 567 S.W.2d 426 (Mo.App.,

St.L.D. 1978). There has never been a formalistic dialogue

required by any court to indicate the venireperson's irrevocable

commitment against the death penalty. For example, in Boulden v.

Holman, supra, one of the venire examinations that this court

indicated showed the type of irrevocable commitment that would

sustain the challenge of cause contained the word “think” in the

question which the trial court asked of the venireperson. “You

think you would never be able to inflict the death penalty in any

type of case?" "Yes, sir.” [Emphasis added.] Boulden v. Holman,

supra, 394 U.S. at 482, n. 6. If the word “think” does not

necessarily raise an idea of equivocation when used in a question,

then inferentially it would not do so in an answer. State v.

Elliott, 267 N.E.2a 806, 808 (Ohio 1971), death sentence vactaed

on other grounds, 408 U.S. 938 (1972).

In regard to the third factor relied on by the Supreme Court,

it is clear to anyone. who has tried cases, either as an advocate or

sitting as a judge, that the courtroom presents an intimidating

atmosphere for lay people, especially when they are being questioned

out of the presence of the rest of the voir dire panel ag was the

case in petitioner's voir dire proceedings. This practical experience

prompted the Missouri courts some time ago to recognize that people

employ popular idioms more often than words of legal percision when

describing feelings about religious or philosophical beliefs. As

was held in State v. Pride, 567 S.W.2d 426, 433 (Mo.App., St.L.D.

1978):

“As much as judges and lawyers might de-

sire it, people generally do not speak in

absolutes, probably because they realize

that few things are ever absolute.”

The court in that case recognized that the idiom "I don't really

think so” is a common vernacular expression which does not necessarily

signify equivocation.

The Missouri Supreme Court's recognition of this and its

taking this factor into consideration was a proper and rational

method of analysis and needs no review by this Court.

In regard to the fourth factor in the Missouri Supreme

Court's analysis, its own review of the record, this shows that

the court did not simply abdicate its responsibility by deferring

completely to the trial court. The court relied on the record and

circumstances revealed therein as well as the collective practical

experience of the majority of judges in regard to voir dire

examination. As was said before, a decision interpreting another

person's words requires judgment and is the type of decision in

which there is always some room for argument.

An additional factor tending to indicate, although not

determinative, of the clearness of the voir dire persons’ answers

to the Witherspoon questions is the action taken by petitioner's

attorney who was present during the questioning. The ci) cumstances

show that counsel understood the venirepersons whose excusal is now

in dispute to be unequivocal in their irrevocable opposition to the

death penalty. During the voir dire, appellant’ did not challenge

the strikes for cause on the ground of equivocation., The ground

stated at the voir dire was the separate ané@ distinct ground that

petitioner was denied his Sixth and Fourteenth Amendment rights

to a cross-section of the community because people who were

irrevocably committed to not inflicting the death penalty were

being excluded from serving on the jury. There was no claim

during voir dire that the disputed venirepersons were not certain

enough about their answers on the death penalty. A necessary part

of the Sixth Amendment objection is that the excluded individuals

form an identifiable segment of the community. See, Duren v. Missouri,

439 U.S. 357, 995 S.Ct. 664, 58 L.Ed.2d 579 (1979). The very

nature of this objection has as its factual premise the fact that

the juror is irrevocebly committed to not inflicting the death penalty

under any circumstances. Otherwise, there could be no ground to

claim that he belongs to this excluded segment of the community.

Since petitioner raised that objection but did not raise an

objection on the ground of equivocation, it is obvious that he

understood the venirepersons' answers to be clear and unequivocal

in their opposition to the infliction of the death penalty.

Having made the decision at the trial level that there was no

ground to object to the definiteness of the answers, petitioner's

claim of equivocation should be weighed accordingly.

In conclusion, the issue raised by petitioner concerning the

Witherspoon issue should not be the basis of the issuance of this

Court's writ of certiorari since it involves no substantial

federal question which has been decided contrary to any opinion

by this Court. It was a matter of judgment as to whether the

answers were equivocal and that judgment was exercised in a sound

and rational manner by the Supreme Court of Missouri and by the

trial court.

Il.

Petitioner raises the question of whether or not the exclusion

of venirepersons who have been disqualified properly under the

principles of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.

1770, 20 L.Ed.2d 776 (1968), deprives petitioner of a jury comprised

of a fair cross-section of the community as guaranteed by the

Sixth Amendment and as interpreted by such cases as Duren v.

Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690

(1975). This is the only issue raised in the second Question

Presented by petitioner. In the Missouri Supreme Court, petitioner

raised this issue as well as a second issue concerning whether or

not he had been deprived of an impartial jury under the Fourteenth

Amendment due process clause by means of the Witherspoon exclusion

leaving on the jury only those persons who were more prone to

find petitioner guilty than were those who had been excluded.

These are separate and distinct issues as seen by the analyses

in Spinkellink v. Wainwright, 578 F.2d 582, 593-597 (Sth Cir.

1978), cert. denied, 440 U.S. 976 (1979), and People v. Henderson,

145 Cal.Rptr. 751, 758-759 (Cal.App. 1978), and Hovey v. Superior

Court, 616 P.2d 1301, 1310, n. 45 (Cal. 1980). Since petitioner

has not included this latter issue in his Question Presented, it

is not before this Court for consideration and will not be addressed

by respondent. Rule 21.i(a), Supreme Court Rules.

In regard to the Sixth Amendment cross-section argument, re-

spondent asserts that under the provisions of Rule 17.1(b) and (c)

no writ of certorari should be granted because this Court has

already ruled that exclusion under the principles of Witherspoon

is not violative of the Sixth Amendment. That precise issue is

addressed in Lockett v. Ohio, 438 U.S. 586, 596-597, 98 S.Ct.

2954, 57 L.Ed.2d 973 (1978), wherein the court held that Taylor

v. Lovisiana, supra, does not suggest “that the right to a representative

jury includes the right to be tried by jurors who have explicitly

indicated an inability to follow the law and instructions of the

trial judge.” Other courts have been in agreement. People v.

Henderson, supra, 145 Cal.Rptr. at 758-759, State v. Avery, 261

S.E.2d 803, 610 (N.C. 1980). Compare, Grigsby v. Mabry, 483

F.Supp. 1372, 1385 (E.D.Ark. 1980), rev'd on other grounds, 637

P.24 525 (8th Cir. 1980), interpreting Witherspoon v. Illinois,

supra, to hold that there is no violation of the cross-section

requirement of the Sixth Amendment even if the disputed jurors

are excluded at the guilt phase as opposed to the sentencing

phase and also holding that such venirepersons do not constitute

a “distinctive” group within the community.

A further reason not to consider the cross-section issue by

means of issuance of the writ of certorari is that there was no

factual basis developed in state court on which to base a decision

concerning whether there was a distinct group of the community

under-represented on the jury pane. In order to establish the

claim that petitioner has been deprived of a fair cross-section

of the community, he must demonstrate (1)that the group is a

"distinctive" group in the community, and (2) the representation

of the group in venire panels from which juries are selected is

not fair and reasonable in relation to the number of such persons

in the community, and (3) that this under-representation is due

to systematic exclusion of the group in the jury selection process.

Duren v. Missouri, supra, 439 U.S. at 364.

As for the first factor in the Duren test, whether the group

claimed to be excluded is one identifiable within the community,

the petitioner must show that such people are “sufficiently

numerous and distinct” within the community of the trial (in this

case Greene County, Missouri). Taylor v. Louisiana, supra, 419

U.S. at 531; and Duren v. Missouri, supra, 439 U.S. at 364, 370.

In the instant case, petitioner presented nothing to the trial

court or to the Supreme Court of Missouri concerning the size of

this group within Greene County and the group's distinctive

qualities. As recognized by the United States Supreme Court,

1. The only juror who indicated that, once petitioner was found

guilty of capital murder, he would consider only the death penalty,

was also striken for cause.

“communities differ at different times and places. What is a

fair cross-section at one time or place is not necessarily a

cross-section at another time or different place." Taylor v.

Louisiana, supra, 419 U.S. at 537.

As to Duren's second factor, whether the group has. been

under-represented, petitioner fails for the same reason as given

immediately above. There are no statistics to show what percentage

of the community of Greene County constitutes a group of people

who would be so unalterably opposed to the death penalty that

they could not give it fair consideration under the law or the

instructions of a court. Without such information, it is impossible

to conclude whether having kept this group off the jury in this

case represents a statistical under-representation of that group

in the community. It is entirely possible that, for instance,

less than one percent of the people in Greene County feel that

way. Whatever speculation we wish to engage in, a ruling on this

type of allegation must be made on facts, and there are no facts,

or trial “ruling” upon such evidence, for this court to review.

Tacon v. Arizona, 410 U.S. 351, 352, 93 S.Ct. 998, 35 L.Ed.2d 346

(1973).

Itt.

Petitioner claims that the Missouri Supreme Court gave an

overbroad construction to the language of § 565.012.2(6) and (7),

RSMo 1978, which contained the two aggravating circumstances on

which the death penalty was based in this case. Respondent

submits that the writ of certorari should not be granted because

the Missouri Supreme Court followed the dictates of this Court in

regard to § 565.012.2(7) ("outrageously or wantonly vile”) and

because there was no argument presented challenging the construction

of § 565.012.2/16) (petitioner acting as an agent of another)

either to the Missouri Supreme Court or to this Court.

In regard to the aggravated circumstance contained in para-

graph 7, petitioner's attack is premised on the assertion that

the “wantonly vile" factor has been formulated practically the

same in both the Georgia and Missouri statutes and on the asser-

tion that the this Court and the Georgia Supreme Court have held

that the language of Georgia's statute is unconstitutionally

broad. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64

L.Ed.2d 398 (1980), and Holton v. State, 253 S.E.2d 736 (Ga.

1979), cert. denied 100 S.Ct. 263 (1979).

The Supreme Court of Missouri interpreted Godfrey as upholding

death penalties which are based on the “wantonly vile" aggravated

circumstance as it is worded in the Georgia statute as long as

the state courts construe each case to make certain that the

death peanlty is being imposed only in those cases which lie at

the very “core” of the situations encompassed by that aggravated

circumstance. See pages 13-14, n. 4 of State v. Mercer, slip

opinion. This position is supported by this Court's opinions in

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859

(1976), and Godfrey. In Gregg the United States Supreme Court

specifically rejected a challenge to the language in the Georgia

statute on grounds of facial vagueness and stated as follows:

"It is, of course, arguable that any murder

involves depravity of mind or an aggravated

battery. But this language 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. In only one case has

it upheld a jury's decision to sentence a defendant

to death when the only statutory aggravating cir-

cumstance found was that of [§ 27-2534.1(b)(7)],

see McCorquodale v. State, 233 Ga 369, 211

S.E.2d 577 1974), and that homicide was a horrify-

ing torture-murder [footnotes omitted]." Gregg

v. Georgia, supra, 428 U.S. at 201.

See also Proffitt v. Florida, 428 U.S. 242, 255-256, 96

S.Ct. 2960, 49 L.Ed.2d 913 (1976), wherein similar statutory

language was also upheld. In cases following the Gregg decision,

the Georgia Supreme Court further analyzed and discussed this

aggravating circumstance, and death sentences imposed thereon were

upheld. See Blake v. State, 236 S.E.2d 637, 642-643 (Ga. 1977),

cert. denied, 434 U.S. 960 (1977); Harris v. State, 230 S.E.2d 1,

10-11 (Ga. 1976), cert. denied 431 U.S. 933 (1977).

In Godfrey v. Georgia, supra, the United States Supreme

Court reiterated its holding in Gregg that the Georgia provision

was not facially unconstitutional, and then stated that:

“The issue now before us is whether, in

affirming the imposition of the sentences of

death in the present case, the Georgia Supreme

Court has adopted such a broad and vague con-

struction of the § (b)(7) aggravating

circumstance as to violate the Eighth and

Fourteenth Amendmerts to the United States

Constitution." [Emphasis supplied; footnote

omitted.}] Id. 446 U.S. at 423.

*

In short, the issue before the court was not whether the

aggravating circumstance at issue was void for vagueness on its

face, but whether it was vague as applied to the facts and cir-

cumstances of that case. The court examined the facts surrounding

the petitioner's murder of his wife.and mother-in-law and concluded

not only that this killing did not come under a constitutional

definition of the aggravating provision but that also "[t]he

circumstances of this case . . . do not satisfy the criteria laid

out . . . in the Harris and Blake cases [cited supra]." 14. 446 U.S.

at 432. The reversal was based on the failure of the Georgia

Supreme Court to follow its own criteria.

In the short time since this Court's decision in Godfrey, this

Court has denied certiorari on at least two death sentences based

on the section (b)(7) aggravating circumstance. Berger v. State,

265 S.E.2d 796 (Ga. 1980), cert. denied 100 S.Ct. 2975 (1980);

and Blake v. State, 260 S.E.2d 876 (Ga. 1979), cert. denied 100

S.Ct. 2974 (1980). See also Rutledge v. State, 374 So.2d 975

(Pla. 1979), cert. denied 100 S.Ct. 1844 (1980); Dobbert v.

State, 375 So.2d 1069 (Fla. 1979), cert. denied 100 S.Ct. 3000

(1980). Given these facts, it is preposterous to assert that the

United States Supreme Court has declared the Georgia aggravating

circumstance in question to be facially void for vagueness as

formulated in the Georgia statute, or that the equivalent Missouri

statutory provision is invalid on this ground.

After recognizing the fact that it was required to construe

the language in Missouri's statute which sets out the “wantonly

vile” aggravating circumstance, the Missouri Supreme Court proceeded

to specify exactly what aspects of the case put it at the “core

of that aggravating circumstance, detailed the facts supporting

this aspect of the case and compared it to other Missouri cases.

See pages 15-16 of slip opinion.

"'Depravity of mind’ is demonstrated in this

case by the mode of killing preceded by extented

sexual and psychological abuse of the victim, See

| Et ees es a ee ow eres

EE eee eee eee ee

Hance v. State, 245 Ga. 856, 268 S.E.2d 339, 345-

346 (1980), cert. denied 49 U.S.L.W. 3443 (Dec. 16,

1980)." Page 15 of slip opinion.

In the instant case, the facts show a vile crime growing out

of an obviously depraved mind. At the point of a shotgun, petitioner

forced the victim, who with petitioner's connivance had been

lured to his house on the pretext of a date with another person,

to have sex with him. The victim was a birthday present to the

petitioner. She was then apparently subjected to a rape by

Steven Gardner who had accompanied her to the house as her date.

She was forced to perform fellatio on David Gee while the event

was being witnessed by other men, including petitioner. Then

according to petitioner's statements made at the time, he intended

to have anal sex with her. Before going upstairs to the bedroom

he asked Steven Gardner what Gardner wanted done with her, and

was told by Gardner to kill her. Petitioner said he would do so.

The victim was killed, slowly, by choking. She was killed not

only because Steven Gardner asked petitioner to do it but also in

order to prevent criminal charges from being brought against petitioner.

This victim was not just murdered, but was subjected to one of

the worst degradations that a man can inflict upon a woman,

forcing sex upon her by himself and others. Petitioner not only

forced sex upon her but made a spectator sport out of it. She

was subjected not only to sexual intercourse, but also to oral

sodomy and, apparently, anal sodomy. She was killed strictly for

the convenience of Steven Gardner and petitioner so that their

deeds would never come to light.

Petitioner's reliance on Holton, supra, to show that Georgia

courts have recognized that the language in the “wanton vile”

aggravated circumstance is fatal to a death penalty assessment

based on that aggravating circumstance is misplaced. In that

case, the Georgia court held that the death penalty should be

vacated because the instruction submitting that aggravating

circumstance to the jury was not complete enough in that it stated

only that death could be imposed “by reason of depravity of

mind". The death penalty was reversed because the instruction

omitted all reference to “outrageously or wantonly vile, horrible

or inhuman" which were the additional words found in the statute.

Holton v. State, supra, 253 S.E.2d at 740.

Petitioner, in the formulation of his third Question Presented

also alleged an overbroad construction of the term "agency" in

the aggravating circumstance found in § 565.012.2(6), RSMo 1978.

This question should not be considered by this Court because

there was no argument presented on this point to the Supreme

Court of Missouri and, therefore, there was no ruling on it.

Tacon v. Arizona, 410 U.S. 351, 352, 93 S.Ct. 998, 35 L.Ed.2d 346

(1973). That portion of petitioner's brief which presented the

“overbroad” challenge is contained in Appendix A, attached hereon.

Furthermore, there is no argument presented in the argument

portion of the petition for writ of certiorari concerning this

issue.

The petitioner also raises the issue about whether or not a

death penalty can be sustained if one of the several aggravating

circumstances upon which it is based is found to be constitutionally

infirm. This issue also should not be reviewed by this Court

because the Supreme Court of Missouri made no holding concerning

it. At the most, the Supreme Court simply “noted” that juris-

dictions were split on the proposition that death penalties could

be upheld as long as one of several aggravating circumstances

were found to pass constitutional muster. See page 14, n. 5 of

slip opinion. The Missouri court's decision must have clearly

turned on the federal question in order for it to be subject to

review. Simmons v. West Haven Housing Authority, 399 U.S. 510,

512, 90 S.Ct. 1960, 26 L.Ed.2d 764 (1970); Lear v. Adkins, 395

U.S. 653, 675-676, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969).

CONCLUSION

WHEREFORE, respondent requests that the petition for writ of

certiorari be denied.

CERTIFICATE OF SERVICE

I hereby certify that a

true and correct copy of

the foregoing was mailed,

postage prepaid, this 4 _

day of September, 1981, to:

Cenobio Lozano, Jr.

P.O. Box 452

3001 N. 291 Hwy.

Harrisonville, MO 64701

Attorney for Petitioner

LM

PAUL ROBERT OTTO

Respectfully submitted,

JOHN ASHCROFT

Attorney General

fille itd

Assistant Attorney General

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

ATTORNEYS FOR RESPONDENT