Petition — Rayfield Newlon v. State of Missouri

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

21-GGEO

No.

RECEIVED

HAY 5 1982 RAYFIELD Lon,

Petitioner

OFFICE OF THE CLS RK

SUPREME COURT, U.S. v.

STATE OF MISSOURI,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

LON HOCKER

130 8. BEMISTON, SUITE 405

CLAYTON, MISSOURI, 63105

(314) 727-5822

RICHARD H. SINDEL

SINDEL, SINDPL & SINDEL

15A K. MERAMEC, SUITE 200

CLAYTON, MISSOURI 63105

(314) 721-6040

Counsel for Petitioner

Table of

COMCONEH. cc cece eee „„ i

Questions Presented for PROVIEW ccc „„ ii

Table of

Author tte „„ 111

Petition for writ of Certior a „„

The Opinion BELOW, ccc ce ee eee „„

Jurisdictional Statenenneʒd „„

Constitutional Statutory Provision

Unconstitutionality Rais %Cũ w̃iũůii „„

Reasons tot Granting MI „„ „„

Statement ot the cas

Argument: Depravity, Due Process, Disproportionality..

CONCLUBLON, ccc „„ 28

Appendix

Order and Opinion of the Supreme Court of

Missouri of February 9, 1982, issued upon

denial of rehearing, reported at 627 6. u. 20

196 %% „„ E HEHEHE EEEEE HEHEHE 30

Order denying Appellant's Motion for Rehearing.... 79

Constitution of the United States, Amendments

Five, Bight and Fourteen, and Revised Statutes

of Missouri, 1978, Sections 565.006.2, 565.008.1,

565.012.1(1),-2(4)+ (74, 5, and 565.014.1,.3(1),

(2), — 983553 ³92½ù7ꝛ˙ 660

1. Whether a judgment of death based solely on depravity of

wind is unconstitutional under the Due Process and Equai

Protection clauses of Amendments V and XIV and the Cruel and

Unusual Punishment Clause of Amendment VIII, where demonstrably,

a. the sentencing jury did not know what was meant by

Gepravity of mind, and

d. the sentencing jury did not know nor find whose

mind was depraved.

2. Do arguments by the State, at the penalty phase of 4

capital trial, which

2. invite the jury to consider the possibility of

Petitioner's early release by legislative enactment or

governmental pardon, and

D. invoke fear, passion and prejudice in the jury

against the Petitioner;

violate Petitioner's rights to due process of law under the

Fifth, Eighth and Fourteenth Amendments to the United States

Constitution for the reason that such arguments are extraneous,

speculative and inflammatory.

J. Is @ judgment of death an unconstitutionally excessive

and disproportionate penalty for this Defendant,

a2. who was arguably not found to have taken or

intended to take the life of the victim; and

d. when compared to the punishments imposed under the

Same statute in other Missouri cases;

thereby rendering the judgment so randoms, arbitrary and

capricious as to be unconstitutional and deprive the Defendant of

due process of law under the Fifth, Eighth and Fourteenth

Amendments to the United States Constitution,

Beck X. Alabama, 447 U.S. 625 (1866ꝶ .. . 18, 25

Broyles L. Commonwealth, 267 8. u. 2 73 (ny. 1984) . . . . 6 6 „ 22

Bullington L. Missouri, — U.S. , 101 8. ct.

1032 (1961¹³.k . ..

Bush X. State, 550 8. .. 2d 175 (Ar. 187%) 22

Eddings vy. Oklahoma, No. 60-5727, 30 Cr. 3047 n. 3 (1982).. 7

Parris . State, 535 S.W.26 608 (renn. 176. 22

PUCMAD Vo Gaal, 408 U.S. 238 (197/⸗ꝶ/½ n 19, 25

Gaxdnex z. FlOcida, 430 U.S. 349 (19%/% 4 454

Gates k. Georgia, 216 8. . 20 348 (Ga. App. 1775) 17

GOdErey k. GOOTGIB, 446 U.S. 420 (196% 4

GEOGG k. GROLGIS, 428 U.S. 153 (1976 446554440

Uni z. State, 617 P. 20 SOB (OKL. Co. 1966 22

Aura k. TOMAS, 428 U.S. 262 (197/63. 216, 25

LOckett k. hie, 438 U.S. SOG (19% % . 19, 20, 23

Mercer . State, 616 8. u. 20 1 (Mo. banc. 1961). 26

Pennsylvania ex Cal. Sullivan L Ashe, 302 U.S. 51 (1937).. 20

People . Baskett, 30 Cal. 30 841, 640 F. 20 776, 180 Cal.

Rptr. 653 (Cal. 1986212·7˙ z S 292

People k. Ramos, 30 Cal.3d 533, 180 Cal. Rptr. 266; 639

b. 20 900 (1982) .ccccccccccccccccccccccscccsccocccscoes 229 23

People vy. Superioxs Court (Engebert), 105 Cal. App.3d 365... 12

Prevatte vy. State, 233 Ga. 929, 214 8. f. 2 365 (Ga. 1975).. 24

Proffitt . Florida, 426 U.S. 242 (1976). 18, 24, 25

St. Amp X. Paliai, 495 r. 2 423 (Sth Cir. 1/%0% .f

State wv. Atkingon, 172 8. . 2 111 (B.C. 1%). 22

State . Coleman, 460 8. u. 20 719 (Mo. banc. 17/0) 21

State of Missouri X. Greathouse, 627 8. v. 2 592

(Mo. 1976ù̃ · œ᷑ 1 ⁵ u:. „„„„6„% 27

iii

State X. Hicks, 530 8. u. 20 396 (Mo. APP. 1973 «6 21

State X. Hines. et al., 266 N.C. 377, 211 8. . 2 201

(. c. LOTS) %%% „44% 22, 24

State k. Jones, 296 N.C. 495, 251 8. . 2d 425 (N.C. 1979)... 22, 24

Btate x. Lewis, 443 8. .. 2d 186 (MO. 1866334

State x. Lindsey, 233 8. f. 2d 734 (U. va. 19777/ . ẽkf 22

State of Missouri I. Mclivoy, No. 62026, decided

Pebruary 9, 1986ꝶꝶꝶꝶꝶ 3 l 327

State K. Mewlon, 627 8. u. 20 606 (MO. 19862) . BABBAD

State k. Stockbridge, 549 8. u. 2d 648 (Mo. App. 1977. 19

State . Tyner, 258 8. f. 2d 559 (B.C. 1976%ũ̃ 4

State k. Millie, 410 80. 2d 1019 (Le. 198861ã14˖12. . lb. 20, 21, 24

Buble L. People, 111 P. 2d 233 (colo. 1984) ꝑ q 322

Milliams . Oklahoma 358 U.8. 76 (1559. 20

Witherapoon z. Illinois, 391 U.S. 510 (1866 ² 323

Moodson x. North Carolina, 428 U.S. 280 (1,76) 19, 20

IN THE

SUPREME COURT OF THE UNITED STATES

RAYFIELD NEWLON,

Petitioner

STATE OF MISSOURI,

Respondent

RETIZTION FOB WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

— — — ̃ — H— — —

TO: THE BONWORABLE, THE CHIEF JUSTICE and

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES

Rayfield Newlon, the Petitioner herein, prays that a Writ of

Certiorari issue to review the judgment of the Supreme Court of

the State of Missouri, entered in the above entitled cause on

February 9, 19862. Petitioner's Motion for Rehearing was denied

on March 9, 1982.

QPINIONS BELOW

The opinion of the Supreme Court of the State of Missouri is

published at 627 &.W.2¢ 606 (Mo. 1962). It is Appendix A

attached hereto.

JURISDICTION

The judgment of the Supreme Court of the State of Missouri

affirming Petitioner's conviction of Capital Murder and affirming

and assessing his penalty at death was entered February 9, 19862.

Petitioner duly filed his Motion for Rehearing which was denied

by the Supreme Court on March 9, 1962, (Appendix B). The juris-

diction of this Court is invoked under 28 U.8.C. 1257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

The constitutional provisions involved are the Pith, Eighth

and Fourteenth Amendments to the Constitution of the United

States. The statutes involved are 565.006.2, 565.008.1,

365.012.161). 2000, (74, 3. and 5$65.015.1,3(1),(2),(3). of the

Revised Statutes of Missouri, 1978.

wf THE CASE

Petitioner, identified therein as a Negro, male, twenty-

three (23) years of age, was charged by Indictment filed August

4, 19786, in the Circuit Court of the County of St. Louis,

Missouri, with Capital Murder under Sec. 565.001 R.S.Mo., “in

that Defendant, acting with others, feloneously, unlawfully,

wilfully, knowingly, deliberately and with premeditation, killed

Mansfield Dave." The all-white jury was selected July 30, 1979,

and trial was commenced.

The State proved the corpus delicti and the surrounding

circumstances. The evidence connecting Defendant with the crime

consisted of the testimony of a participant, Walter West, and

statements made by Defendant to police while in custody. The

thicd participant, Franz Williams, whose fingerprints were

identified on a soda bottle left on the check-out counter from

which Dave was shot, was not called as a witness although he had

been arrested, confined, and charged with Capital Murder.

Newlon's statements to police (one of which was on video tape)

were conflicting and confused. He admitted helping West and

Williams saw off the shotgun barrel and going with the other

three to the store intending to rob it. Throughout, however, he

denied that it was he who hed done the actual shooting. In his

testimony at trial he denied being present at the time of the

attempted robbery and denied killing Mr. Dave.

The only evidence that Newlon had fired the shotgun case

from Walter West who testified to what he saw as he sat in his

auto on the opposite side of the street from the store, with the

moteur running and the windows up. Besides the width of the

street, there was «4 parking lot between West and the store front.

There was testimony that the street was 27 feet 9 inches wide and

the parking lot was 102 feet 2 inches deep. The store front was

another 27 feet 4 inches from the edge of the lot, and down two

flights of steps; for « total of 157 feet 3 inches from the far

side of the street to the store front. The door was 5 feet 3/4

inches lower than the level of the parking lot.

West testified that from this vantage point, looking through

the glass door of the shop, he identified Newlon as the one who

fired the gun after Dave “turned around," and that when Franz

Williams came up to the front of the store, Newlon was “messing

eround with a shot gun“ and he saw another puff of smoke. He

quoted Newlon as reporting to him later “I hed to burn his.” West

further testified that he had been charged with First Degree

murder for this crise, that he had made an agreement “to turn

State's evidence for « ceduced charge for Second Degree Murder

and 10 years, and to be sent to a penitentiary out of state.” At

the time of his testimony he bad entered a plea of guilty but had

not been sentenced.

At the firet phase of the trial the Court gave the following

instructions:

Instruction Wo. 5

All persons are guilty who knowingly act together

vbo Knowingly tnd Sacentionally ai@ wor encourage

Serthereace of the 682 ie the ect of cosh of then.

The presence of s person at ot near the scene of

sufficient to make hin responsible therefore, elthough

his presence may be considered together with all of the

evidence in determining his guilt or innocence.

Instruction Ho. 9

If you find and believe from the evidence beyond a

— ‘

Pircet, that on er about April 24th, 1978, in the

County of St. Louis, State of Missouri, the

det t or caused the death of

Mansfield Dave by hia, and

Second, that the defendant oc anothers intended to

take the life of Mansfield Dave, and

Third, that the defendant oc another knew that

they were practically certain to cause the

death of Mansfield Dave, and

Fourth, that the defendant ox considered

taking the life of ans tie ld Dave and

reflected upon this matter cooly and fully

before doing so, and

Fifth, that the defendant acted either alone or

knowingly and with common purpose together

with another in the conduct referred to in

the above paregraphs, then you will find the

defendant guilty of Capital Murder.

However, if you do not find and believe from the

evidence beyond a reasonable doubt each and all of

these propositions, you sust find the defendant not

guilty of that offense. (Emphasis supplied.)

Excerpts from the State's summation will be quoted in the

argument, infra. The jury returned a verdict of guilty of

Capital Murder.

Wo edditional evidence was taken at the punishaent phase of

the trial; but additional arguments were made both by the State

and by the Defendant. Excerpts from the State's summation at the

penalty phase will be noted in the argument and Justice Seiler's

Gissent. A transcript thereof has been forwarded to this Court by

the Clerk of the Supreme Court of the State of Missouri.

The Court, at the punishment phase of the trial, gave the

following additional instruction (among others):

Instruction Ho. 19

In determining the ishment te be assessed

against the defendant for murder of Mansfield Dave,

you must first unanimously determine:

1. Whether the defendant surdered Mansfield Dave

for the purpose of receiving money or any other thing

of monetary value.

2. Whether the murder of Mansfield Dave involved

Gepravity of sind and that as a result thereof it was

outrageously or wantonly horrib)e or inhuman.

You are further instructed that the burden rests

upon the State to prove beyond a reasonable doubt at

least one of the foregoing circumstances, and that it

is an aggravating circumstance. The defendant is not

required to prove or disprove anything.

Therefore, if you do not unanimously find from the

evidence ond a reasonable doubt that at least one of

the — ng circumstances exists and that it is an

ravating circumstance, you must return a verdict

fixing the punishment of the defendant at imprisonment

for life by the Division of Corrections without

eligibility for probation or parole until he has served

a nta of fifty years of his sentence.

Instruction Wo. 23

You will be provided with forms of verdict for

your convenience. You cannot return any verdict as a

verdict of the 27 unless all twelve jurors concur and

— to it, but it showld be signed by your foreman

one.

If you decide, after considering all the evidence

and instruction of law given to you, that the defendant

must be put to death for the murder of Mansfield Dave,

your foceman must write into your verdict 811 of the

ravating circumstances submitted in Instruction No.

19 which you found beyond a reasonable doubt.

If, after considering all of the evidence and

instructions of law, you decide the defendant must be

enisheéd for the murder of Nanefield Dave by

mprisonment for life by the Division of Corrections

without eligibility for on or parole until he

bas served « sinimus of fifty years of his sentence,

your foreman will sign the verdict form so fixing the

punishment.

During deliberations, the jury asked the Court “Please give

a definition of ‘depravity of ind.“ The Court declined to

det ine depravity of mind and advised the jury “that I could not

give them any further instructions.”

The jury returned the following verdict:

Verdict

* bp the jury, — | found the defendant guilty of

pital Murder of Mansfield Dave, fis the

Beereveting cizcenstunce es circumstances wnich we fins

beyond a reasonable doubt:

Instruction Bo. 19

Aggravaeting Circumstance No. 2

Whether the surder of Mansfield Deve involved

depravity of mind and that as a result thereof it was

ae a 1 or inhuman.

’ eman.

Defendant's post-trial motions were denied and sentence of

death imposed.

Petitioner duly filed his Notice of Appeal November 20,

1979. is appeal was argued and submitted in the Missouri

Supreme Court on October 13, 1980.

UMNCONSTITUTIONALITY RAISED

The unconstitutionality of the sentence of death, under the

Cruel and Unusual Punishment and Due Process clauses of the

United States Constitution on the verdict of depravity of mind

and the circumstances of this case was raised before the trial

court in Defendant's Separate Motion to Set Aside the Verdicts

and for New Trial; and in the Missouri Supreme Court by

Appellant's brief. See Opinion, Points (1), page 5 and (6), page

22, 627 &.W.2¢ 1.c.62] et A8. The unconstitutionality of the

inflammatory arguments of the Prosecutor under the United States

Constitution was raised in the trial court (without benefit of a

transcript) in Defendant's post-trial motions and in Appellant's

brief in the Missouri Supreme Court.

The unconstitutionality of the death sentence under the

uniformity requirements of Amendment VIII of the United States

Constitution, first arose in the Missouri Supreme Court, upon

which court the Missouri law puts the burden of making a

determination of excessiveness and disproportionality. ons

565.014.303).

Judge Seiler's dissenting opinion (Point II page 2, appendix

A, 627 8... 20 1.c.624) discusses uniformity as a requirement of

the Eighth Amendment to the United States Constitution and the

Gisproportionality of this judgment as against previous judgments

(commencing at page 10), having been raised by Appellant pursuzst

to supplementary briefs filed with the Supreme Court of the State

of Missouri.

REASONS FOB GRANTING THE MRIT

The Supreme Court of Missouri, by refusing to Clarify or

limit the construction and application to be given to

$65.012.2(7) and by sisapplying this Court's holding in Gregg X.

Georgia, 428 U.S. 153 (1976), has ignored that decision's

constitutional mandate that the sentencer's discretion in capital

cases be “directed" and “limited".

Without further clarification aggravating circumstance (7)

will become the “dumping ground“ and “catch-all* for persons

charged with Capitel Murder in the State of Missouri in those

cases in which the prosecuting authorities seek the penalty of

death. A review here of this judgment of death by the Missouri

Supreme Court, predicated solely upon a finding of depravity of

mind, by a jury which, although requesting it, was not given any

definition or guidelines for the application of the ters, will

provide this Court with the opportunity not only to sight the

wrong done in this case, but to make clear to the courts of

Missouri and those other states with similar statutes whose

courts have evidently missed the sessage of Gragg L. Georgia,

Ants, 428 U.S. at 201, Godisey L. Georgia, 446 0.8. 420, at 428

(1960); and Eddings z. Oklahoma, Wo. 80-5727, 30 cr. 3047 n.3

(1982), that no judgment of death based on an indiscriminate

submission of the vague and subjective term is constitutionally

permissible.

The argument of the State at the penalty phase of the trial

is clearly controlled by the Due Process clause of the United

States Constitution, Gardner . Florida, 430 U.S, 349 (1977), and

subject to a sensible interpretation of what is fundamentally

fair. The summation in this case clearly demonstrates the

pressing need this Petitioner and others so charged in Nissouri

and sister states have for thouchtful consideration of fair

limits to be placed on the State when arguing for death. This

Court is also provided with an opportunity for establishing for

the various state tribunals guidelines for permissible

(constitutional) arguments.

As @ result of this decision, Nissouri conflicts with most

other states in allowing the State to argue tie possibility of a

Gefendant's eventual release by parole or executive pardon as «4

reason for imposing the penalty of death. In post states, the

Petitioner would, by court holdings, have been specifically

protected from such an extraneous and fundamentally unfair

argument. In Missouri, this Petitioner and 11 who fell after

hie ere fair game to such conjecture and speculation on the part

of the jury. Further, the Supreme Court of Hissouri's rulings

concerning inflammatory statements by the State in its sunset ters

to life threatening situations involving the jurors’ family and

Petitioner; the necessity of isposing a sentence of death to

insure that Petitioner would not commit sore “crises"; and the

charge that if somebody is “guilty of capital surdet...why should

they get anything other than death?"; if allowed to stend will

open the flood gates for over sealous prosecutors to appeal to

the instincts possessed by jurors thet this Court has since

Ma., BURLA, Sought to guide and direct in a manner consistent

with the principles of fundamental fairness and due process of

lew.

The resolution of these questions is not oniy « satter of

life or death to this Petitioner it would also be the seans of

sesolving similar questions in cases now pending and yet to be

cee Ul 4

filed in Missouri and throughout the United States.

Petitioner has diligently pursued and exhausted all of his

remedies in the State courts, and the only remaining forum in

which he may seek to vindicate his rights and avoid his death is

in this Court through its grant of this Writ of Certiorari.

ARGUMENT

1. Depravity

a. What is it?

Two aggravating circumstances were submitted to the jury

{Instruction No. 19) - 1. Murder to obtain money, and 2.

Depravity of mind. The jury was told (Instruction No. 23), that

it must write in “all of the aggravating circumstances submitted

in Instruction 19 which you found beyond a reasonable doubt.

At 10:30 A.M. the jury commenced deliberations.

One hour later, at 11:30 K.K., the jury sent the judge a

note signed by Juror A. Arnold, the foreman, reading “Please give

a definition of ‘depravity of ind.

The judge told the jury “That I could not give them any

further instructions,”

An hour and a half later, at 1:05 P. K., the jury returned

its verdict, signed by the Foreman, finding only aggravating

circumstance Wo. 2 by repeating, in the form of the instruction,

the submitted question:

l 0 ina and ‘the ae i my . —

outrageously ot wantonly horrible and inhuman.*

The prime requisite of tie instruction and finding was the

involvement of depravity of mind. The secondary finding of

"outrageously or wantonly horrible or inhuman* was merely

consequent in this instruction, on the finding of depravity. The

pejorative and essentially meaningless words of the secondary

consequential finding were held by this Court in gad R.

Georgia, 444 U.S. 420, at 428, (1980) where undefined “by the

trial judge's sentencing instructions,” to be constitutionally

inadequate as de predicate of a death sentence.

We may thereiore confine our discussion on the submission ii

this case to the primary proposed finding of depravity of mind.

If, in the words of this Court in Gardner x. Flccsida, 430

U.S. 349, 358 (1977), it is the function of a court to make

decisions “based on reason,” it is an inescapable conclusion that

@ jury, which did not know at 11:30 A.M. what depravity of mind

meant and was not further instructed, simply did not know what it

was saying at 1:05 P.M. when it found that depravity of mind was

involved in the murder.

Under the Missouri statutory scheme, in jury-tried cases,

the jury is the “sentencer." Sec. 565.006.2 Mo.RS 1978. Under

this Court's opinion in Godicey XL. Georgia, 446 U.S. at 428, 429,

no amount of appellate review can substitute for an understanding

by the sentencer of the “clear and objective standards” by which

the sentencer shall discriminate between life and death. This

Court held (six Justices concurring),

“Pact of a State's responsibility in this regard

is to define the crimes for which death may be the

iscretion by ‘clear and objective standards that

Mracionaliy cevieveble the process for inpesing the

sentence death.“

To say (merely) that depravity of mind was involved, is not

to define a crime by clear and objective standards; it is only to

apply to the crime an epithet derived from a subjective reaction,

Like beauty, depravity is in the eye of the beholder.

Wo definition - no leveling gquide-lines - were given to the

jury, who were left to feel in the dark for the meaning of the

criteria submitted.

Under the Missouri systems, the Missouri Supreme Court is not

the “sentencer": it cannot impose a sentence of death, and even

@ rational definition of depravity in that court's opinion, would

not, under Godfcey and its precursors, satisfy the constitutional

requirement that the sentencer be informed before sentencing.

We note, however, that, although challenged to do so, the

Missouri court declined to lay down - even on review - any

principles for the consistent application of the depravity

criterion, It merely brushed aside this life or death problem by

calling the expression “words of common speech." Op. p. 23, 627

&.W.2¢ 1.c 621.

The portion of the Missouri statute under which this

sentence was imposed contains a positive clue as to the meaning

of the word depravity. It reads (Sec. 565.012.2(7)):

»The offense was outrageously or wantonly vile,

poet | — es in that it involved torture, or

Commonplace rules of construction, under the ancient Latin

names of poscitur a sociis, ip pari materia, and ejusdep generis,

require that we construe this statute to conclude that the kind

of depravity the Leglislature spoke of was “like torture."

Whether or nut jurors know these Latin names, we all know

that one must judge the meanings of ambivalent expressions by the

context in which they appear. It is hardly possible to get

through a day without applying this principle, consciously or

unconsciously. Had the submission to the jury of this

aggravating circumstance been in the statutory form, the jury

would have had the benefit of this context for judging whether

Gepravity was involved, It knew from the evidence that there was

no torture.

The statutory notice filed by the State did state its

intention to submit evidence of this aggravating circumstance in

the statutory wording, “torture or depravity of mind.*

But the State, tacitly conceding the want of any evidence of

torture, deleted this word from its submission in Instruction No.

19 and, in modified form, it was given to the jury.

So the jury, deprived of knowledge of the legislative

context, not only was not instructed that the depravity must be

"like torture"; it was not permitted to use its own common sense

in reaching this conclusion in answering its own request for a

definition.

The Missouri Supreme Court found no difficulty in this,

arguing that a finding of torture is not necessary, if in the

Court's words (not the Legislature's nor the jury's), there is a

“macabre purpose.” Op. p. 24. In thus explaining the meaning-

less words of the statute by adding one sore such word cf its

own, the court only compounds the confusion. In People X.

Supexcios Cant (Bngebert), 105 Cal. App.3rd 365, 368, holding a

similar catch-all provision unconstitutional, the California

court said:

»In short, vague statutory language is not

rendered more precise by defining it in teres of

synonyms of equal or greater uncertainty."

In dismissing the statutory term, torture, the court missed

the whole thrust of this Court's opinion in Godficey X. Georgia.

Auna, 1.c. in which the judgment of the Georgia Supreme Court

was reversed for failure to follow the previously announced

requirements of the Georgia law,

„„ bat the phrase ‘depravity of sind‘

contemplated only the kind of mental state that led the

murder to torture or to commit an aggravated battery

before hia victia,..that the word, ‘torture’

must be construed ip pari with ‘aggravated

battery’ so as to require ev of serious physical

abuse of the victia ore death."

Depravity remains today undefined in Missouri law. For

future cases, as well as in Newlon's, the present state of

Missovri jurisprudence is that the jury must look to inspiration,

not law, to find the meaning of depravity of mind.

In this case, more than any other, it is positive that no

juror, and no one else at the trial knew what was meant by

"depravity of mind.“ The finding was purely random, and is thus

unconstitutional.

b. Whose was it?

But the jury in this case not only did not know what

depravity of mind meant, it also did not know whose mind, under

the Missouri law, must be depraved!

In the punishment-phase trial, neither the submission nor

the finding identified in any way the ownership of the mind which

was to be depraved: it was submitted and found only that the

murder of Mansfield Dave involved depravity of mind.

In a case of a one-man-solo murder, where that man had been

found guilty. such a submission and finding might be said to

point the finger definitely at the defendant, as the only one

whose mind could have been depraved. But here, as Judge Seiler's

powerful dissent points out, there were three persons involved in

the murder, and it is impossible to know from the evidence, the

argument ani the finding, which two of the three was thought by

the jury to have been the trigger-man,

Yet the Prosecutor, in his argument to the jury, based the

State's whole claim of depravity on the action of the trigger-

man. Citing the two submitted aggravating circumstances, he

argued:

save. smnsived aang otis Sad tie be a etacie

thereof, it was outrageously or wantonly horrible or

inhuman. There is no question about that. If it

weren't for that second shot, you could see where

reasonable people could differ and say the first shot

may have been the result of panic...but I won't take

his life for it, but in this particular instance more

than one shot was fired, in order to fire that second

shot a new shell had to be put in - so the shotgun was

broken; opened, and fire agained. That is an execution

— just plain and simple - an execution. 80, I think

you can find both aggravating circumstances and you

need only find one.“

Note the passive voice of the words in this passage: one

shot was fired" ..."the shotgun was...reloaded.”

Wow the same jury, with the same foreman, at the proceeding

guilt-or-innocence phase of the trial, had been told by the Judge

that the Defendant should be found guilty whether it was he or

another who hed shot and killed Mansfield Dave, if he acted

“with common purpose with another." Instruction No, 9. Also

that 211 persons are guilty who knowingly act together with the

common purpose of committing an offense...” Instruction No. 5.

The Prosecutor had argued:

"The Judge told you, as it was mentioned in your

selection as jurors, that under the law of Missouri,

that the act of one person is the act of another. It

2 or 3 8, of 10 people are all acting with the sane

1 se, and that the goal is the same to rob and

ill, then they are all equally guilty of robbing and

killing...no matter who grabs the money or who pulls

the trigger as long as all are involved in the sane

crime. 60, technically, there is no question about it

~ Walter West, Franz Williams and Rayfield Newlon are

all guilty of Capital Murder. There is no question

about that.

It is not possible to gather from the guilty verdict a

resolution of who had done the shooting.

With the authorization for attribution from “another” to

Defendant engraved in their minds from the guilt phase of the

trial, the same jurors were asked to find only whether depravity

of mind was involved“ in the Dave murder,

The Prosecutor, arguing in the punishment phase of the trial

(having based his argument for depravity on the second shot

alone) argued:

"Now, not that it matters what role he played in

this crime, but his role was definitely not minor."

*...Now you people found him guilty of Capital

Murder - that either means beyond a reasonable doubt

that he pulled the trigger, or that he had the frame of

mind that is consistent with pulling the trigger..."

The clear effect of the charge in the argument, therefore,

was that since the trigger-man had a depraved mind, depravity of

mind was involved“ in the murder, and that this is all that is

needed to send Newlon to the gas chamber, whether he was the

trigger-man or not. In St. App X. Raliai, 495 F.2d 423, 425,

(Sth Cic. 1974), the court held:

*Preedom from punishment in the absence of

personal guilt is a fundamental concept in the American

scheme of justice.

The concept of sending one man to death for another man's

depravity is so outrageous that one may wonder whether, even

under this charge, the jury could possibly have done so, It is

enough that they might have; but we think it is clear that they

actually did, because of a collateral finding.

The jury was asked to find not only whether depravity of

mind was involved, but also (Instruction 19):

„1. Whether the Defendant murdered Mansfield Dave

for the purpose of receiving money or any other thing

of monetary valve.

They were told (Instruction 23):

„Tout foreman must write into your verdict all

of the aggravating circumstances submitted in

Instruction No. 19 which you found beyond a reasonable

doubt.

The verdict found only depravity of mind.

Under the bifurcated Missouri procedure, as this Court held

in Bullingtop Me Missouri, — U. 8. — 0 101 8. Ct. 1852 (1981),

such an exonerating finding in the punishment phase trial is an

adjudication binding upon the State as to that issue, as a matter

of federal constitutional law.

Bow could the jury have sade such a non-finding? All the

State's evidence was that the motive of the entire adventure was

robbery. Wo other motive was suggested. The defendant's

confession said so. The Missouri Supreme Court said so. Op. 23,

24. The jury had just found Newlon guilty of Capital Murder

under instructions authorizing attribution. But this aggravating

circumstance, Wo. 1, unlike No. 2, was explicit. The verb was in

the active voice - “whether the Defendant murdered Mansfield

Dave...." Wo attribution was authorized. This non-finding can

be explained in no other way than that the jury found that the

State had not proved that Newlon was the trigger-man - he had not

himself “murdered Mansfield Dave." Small wonder, considering the

incredibility of Walter West, the binocular-eyed, plea-

bargaining, co-defendant.

But to find that depravity of mind was “involved" in the

murder did not require, under the submission, that Newlon be the

trigger-man. Somebody was the trigger-san. On the basis of the

Prosecutor's argument about the reloading, the trigger-man's mind

was depraved and therefore depravity of mind was “involved” in

the murder; so Newlon must die.

Neither the court nor the Prosecutor advised the jury that

to send him to the gas chamber it must find that Newlon's pind

was depraved. The Prosecutor had just told them that it didn't

matter what role he played in the crime, so long as it wasn't

“minor." Indeed, under the submission, whose mind was depraved

(whatever that phrase was thought to mean) was irrelevant.

As far as we have been able to find, this is the only case

in review where sentence of death has been authorized by

attribution to Defendant of the depravity of another person's

mind. Not even the Hissouri Supreme Court affirmed this

judgment on that basis. It held that the Missouri statute makes

it te responsibility of the jury to determine if the offender

acted in a manner denoting Gepravity of mind.” Op. 23.

Obviously, this has to be the lew. In Gates . Georgia, 216

8. b. 20 348, 357 (Ga. App. 1975), the court held:

*...Regarding depravity, it is not the victin's

state of wy which bust concern the jury; At ig the

Well, if it is the responsibility of the jury “to determine

if the offender acted in a manner denoting depravity of mind,”

then it must follow that it is the responsibility of the court to

tell the jury so. Weither responsibility was fulfilled. There

was no such charge, and no such finding. But the Missouri

Supreme Court, ignoring the confession of Newlon, his testimony,

the absence of the in-custody third participant, the submissions

of the court, and the finding of the jury, made of iteelf an ex

post facto super-jury, and tried itself to supply the missing

findings: “Wewlon drew and handcocked the gun,“ “Newlon, without

warning or provocation, shot his in the torso,” etc., etc., Op.

24. There was evidence to this effect, to be sure, from a

confessed participant, who was observing in the dark through two

panes of glass and down two flights of stairs from a site half a

football-field-length away from the action, and who was given «4

ten year sentence for his incriminating testimony; but there was

testimony to the contrary, too, and neither in the guilt-trial

phase nor in the punishment-trial phase did the jury find that

Newlon himself did the things that Judge Rendlen recites as

Gospel fact. And the non-finding of the jury inexorably says,

with the finality of a judgment, that he did not do then.

This judgment ordains Petitioner's death not on a finding of

the depraved state of Petitioner's mind, but on a finding that

somebody's sind was depraved. It would take Newlon's life

without due process of law and it constitutes a crue] and unusual

punishment.

2. Due Process

This Court, in Gardnexs L. Flosida, 430 U.S. 349, 358 (1977)

established due process at the sentencing phase of a capital

trial as @ prerequisite to the constitutional imposition of a

penalty of death. Recognizing the need “to insure that the deata

penalty is indeed imposed on the basis of ‘reason rather than

caprice or est ien, Beck vy. Alabama, 447 U.S. 625, 638 (1980),

the court has scrutinised the sentencing process in an effort to

enhance its reliability. Sut the arguments by the State in this

case without intervention by the trial court, successfully denied

to the Petitioner the “reliability [to be afforded to him at the]

sentencing determination.” Beck vy. Alabama. aupra, 447 U.S. at

638, and unquestionably *enhance( é) the risk of an unwarranted

[sentence of deati}" Beck L Alabama. supra, 447 U.S. at 637.

Judge Seiler in his dissent, Op. pp. 19-23, 627 &.W.2d 633-

634, details portions of the complained-of argument, (a complete

transcript of this argument has been forwarded to the Court by

the Clerk of the Supreme Court of the State of Missouri) and

Petitioner's objections thereto. It is therefore unnecessary to

repeat those contentions. However, Petitioner places particular

cepheciz on the State's reference to his possible future release

by legislative enactment or governmental pardon coupled with the

implied threat of futere violence if he were released,

unnecessarily personalizing the jury and particularly insuring

thet the sentence of death in this case would not be applied ina

fair, rational, consistent and even-handed manner. Proffitt vy.

Rlecida, 426 U.S. 242, 259-60 (1976); Jusek L Zexzas, 428 U.S.

262, 276 (1976); see aleo Garsdnex yw Flocida, 430 U.S. ant 361.

Since Aan required “replacing arbitrary and wanton jury

discretion with objective standards to guide and reguiarize...

the process for imposing @ sentence of death," Woodson y. art

Carolina, 428 U.S. 2860, 303 (1976) (opinion of Stewart, Powell

and Stevens, JJ.), it is only — to assume that the trial

court and the prosecuting attorney share in a duty to insure «a

rational “consideration of the character and record of the

individual offender and the circumstances of the particular

offense.” Woodson L. North Carolina, 426 U.S. anne et 304

(opinion of Stewart, Powell and Stevens ..], Lockett K. Qhio,

438 0.8. 586, 601 (19786). Clearly the State, in this case,

failed in its duty and the court by its silence compounded and

implicitly sanctioned the error.

Very little of the prosecutor's argument (slightly sore than

one page) dealt with the instructed aggravating circumstances and

much dealt with extraneous saterial, largely outside of the

record or knowledge of the jury, that was meant to divert the

jury from a rational decision and insure « sentence of death.

prison - - t's no big deal - - he's been

there before, and what assurances do you have that

he'll be there fifty years? The legislature could

0 the law. All it says is no parole. It doesn't

say it can't be commuted. There is no assurance of

thet et all. The lew could be changed, but at least

with death there is some assurance he won't commit

more crimes and the message is loud and clear,

perhaps others will think twice before they commit a

robbery and take a life just for money. What I as

saying to you is if come back with a life sentence

without his being eligible for parole for fifty years -

i/ Sissouri, as do most other states, * hag) iong

awe gp HD

a p> E on *

to...conduct these duties in such a sanner as will afford the

Gefendant « fair and impartial trial." (Citations omitted).

State L. Stockbridge, 8.4.26 648, 651 (Mo. Apps. 1977).

= —— won't get any reaction, and that's what he is

you to come back with - - that's no deal,

“to. prison, but maybe you'll get his at ion if

ow come back with - - - ‘we sentence you to death.’

sure as he sits there, he doesn't th you have the

ts to do it. Do you know how many people are on

th row in this state? Hone. We've got the death

penalty, but how many are there? None. Ar. Hevlon

will be the first one, if you put his on death row.”

Tdéentical arguments have uwniformally been held to be

improper and unconstitutional in other states. The Supreme

Courts of Louisiana and California have recently declared

references to the possibility of « defendant's eventual release

by pardon or otherwise to be unconstitutional under this Court's

Gecisions in Woodson, supra, Lockett. supra, end Gardner, suprise.

The death sentence imposed in State vy. Willig, 410 6. 20 1019

(La. 1962) was vacated as a result of the prosecutor's argument

that the defendant could, st some unknown tise in the future, be

pardoned by the governor of the state.

In holding that a sentence of death therein was done 80

under passion or prejudice, the court stated:

"The prosecuting attorney's argument that the

Geath penalty should be imposed to avoid the

det endant es almost certain release through an 111

considered pardon of comsutation was highly

r It called on the jury to base its

sion on a consideration outside the scope of its

authority and referred to facts upon which no evidence

had been introduced."

"Only evidence relevant to a statutorily

prescri 1 circumstence, 4 mitigating

circumstance or the churacter and propensities of the

offender is 9 admissible at such a dest.“

410 &.W.2¢ at 1032

See also Gregg . Georgia, 428 U.S. 153, 189 (opinion of Stewart,

Powell and Stevens, J. .), Rennpaylvania ex cal. Sullivan y. Ashe,

302 U.S. 51, 55 (1937), Millians vw. Oklaboms, 3586 b. 8. 576, 585

(1959).

Rather than “suitably Girect/{ing] and limit/ing] {the sen-

tencer's discretion | so as to minimize the risk of wholiy

arbitrary and capricious action® Gregs vy. Georgia. aupra, 428

U.S. at 189 (opinion of Stewart, Powell and Stevens, JJ.) the

sentencer is “encouraged to consider the vicissitudes of

executive clemency instead of the clear, objective and specific

standards enacted for the purpose of ch"” ling their

@iscretion.* State . Millia. supra, 410 8. 20 at 1033. The

only possible result, as the Court in willie concluded, was to

“presume that e death sentence...imposed under the influence of

an arbitrary factor, unless the record clearly indicates that the

jury was properly informed of its duty and admonished to

disregard the improper tes at ks, was to vacate the sentence.

State . Millie. supra, 410 8. 20 at 1033. In the case at bar,

no such edmonishment was given, nor was the jury properly

informed of its duty, and the inescapable conclusion is that the

Missouri Supreme Court should have vacated the sentence.

However the majority opinion failed to address

the issue presented here although raised by the — — and

the dissent, 627 6. u½. 20 Aung at 634 Op. p. 21. The pressing

constitutional problems raised by the Petitioner should have been

adéressed vy the court below, and since they were not Petitioner

must now look to this Court for the relief mandated.

Petitioner has been unable to find any state that currently

sanctions the arguments made by the prosecuting attorney herein,

which are t “proper deterain 5 pee and TEE clemency ose

727 (no

(no. as Bt 2 12 2 sie ae

however numerous states condemn the practice. In California,

purcsuent to statute (Pen. Code Sec. 190.3), the jury was

instructed, at the death penalty phase of a capital trial, of the

governor's power of pardon:

"You are instructed that under the state

conrad @ governor is es ered to grant «

rieve, pardon ot commutation after sentence

to lowing conviction of a crime, Under this power «a

governor may in the future commute or modify a sentence

of life imprisonment without possibility of parole to a

lesser sentence that would include the possibility of

parole.

Even with legislative sanction the instruction was declared

unconstitutional because *...it invites considerations that are

foreign to the jury's task of determining whether the defendant

should live or die...thus isproperly 108 fing] the jury far

beyond the constitutional safeguards of due process of 128.“

People . Bamas, 30 Cal.3d 533, , 180 cel. hett. 266, 2867, 268;

639 r. 20 908, 929-30 (1982).

The jury in this case es in Basa. AURIS, WES 18e never

advised thet Sefendsait would be eligible for pardon or

commutation even if the sentence were death. This half-truth,

when coupled with the prosecutor's repeated personalization of

the jury and appeals to their most basic fears and instincts:

"Ir (‘the t law enforcement officer in &t.

Louis County’ ~T-608) have never seen a san who

deserved the death penalty sore than Rayfield

neu leon.“ (T-600)

„est least with death there is some assurance he

won't commit anysore crises..." (T-603)

550 6. w. 20 175, 177 (ark. 1977), Auble x.

B15 eo 71 (Cole. 1961), Shake g 7

1729 ac.

2, 251 8.8.24 425, 429 (. c. 19

286 N.C. 377, 384, 211 8.8.26 201, n .

8.8. 1, 112 (8.C. 1970), 24. 4.85.

614 (Tenn. 1976), State . „ I 8.8.24 734, 736-738

(W.Va. 1977).

„Ait somebody is guilty of capital murder the

ultimate crime, why should they get anything other than

death?“ (T-604)

Symes be de. know every morning when you read about

rapes murders in the newspapers that you, at least

did the right thing when you were called upon, and when

you were called upon to stand up and be counted - -

that you, were there." (T-606)

"If Rayfield was going to harm your child, would

you kill 187. 1k you think you would have, kill hia

now. Kill him now." (T-607)

"we're not going to let you off with light

imprisonment..." (T-607)

*...thie is truely awar- - I mean a ‘street var

and its justifiable to kill in a war." (T-607)

helle [the jury] into believing that if they vote for life

without possibility of parole the governor may still commute or

grant parole, they were not told the same powers reside with

the governor if they vote the death penaity. The jury is left

with the mistaken belief, because of this omission, that the only

sure way to keep the defendant off the streets is to condemn hin

to death.” People X. ans, 639 P. 20 gupra at 930, 933.

To allow the jury to speculate concerning future executive

and legislative action and the eventual conclusion of a life

sentence, or to allow them to incorrectly conclude that “the only

way to insure that the defendant is never again let loose...to

repeat his vicious crime is to impose death." People X. Rapos,

639 P. 2d Auna at 933, “creates the risk that the death penalty

will be imposed in spite of factors which may call for a less

severe penalty. When the choice is between life and death, that

risk is unacceptable and incompatible with the commands of the

Eighth and Fourteenth Amendments." Lockett . Ohio. supra, 438

U.S. at 605. See also Beck X. Alabama, 447 U.S. supra at 638,

642, and unconstitutionally “[tips the scales) toward death."

Mitherapoon I. Illinois, 391 U.S. 510, 521-522 n.20 (1968). See

also People L. Baskett, 30 Cal.3d 841, 640 b. 20 776, 778;

180 Cal. Rptr. at 653, (Cal. 1982).

The prosecutor further sought to minimize the jury's

sentencing role by referring (incorrectly) to the appellate

review process necessary under the statute before death is imposed:

"Now if you say he deserves the death penalty

under the law, Judge Ruddy (the trial judge) must

review it (this is a misstatement of the law) and if he

agrees then his decision is reviewed by the supreme

court.

“The inevitable effect of the prosecutor's remark...in the jury's

presence was to encourage the jury to attach diminished

consequence to their verdict, and to take less than full

responsibility for their awesome tasks...* Rrevatte x. State,

233 Ga. 929, 931; 214 8. f. 20 365, 367 (Ga. 1975), and thus

*devert (jng) the jury from its duty to decide P12 punishment

on the basis of the evidence presented.. State u. Tyner, 258

8. E. 2d 559, 566, (S.C. 1979). See also State y. Bines. et Al.

286 N.C. Auna at 362-386, 211 8. . 2d at 205, 206; Btate *.

Willis, 410 S. 20 Auna at 1034, 1035; State K. Jans, 296 N.C.

495, 301, 251 8. f. 2d 427, 428 (1979).

These arguments, separately and when viewed in the context

of the summation in its entirety, “had a direct bearing on the

verdict, as they were intended to have.* Op. p. 22, (dissent of

Seiler and Bardgett), 627 S.W.2¢ supra at 634, and Geprived the

Defendant and the community of their respective interests in

insuring “that any decision to impose the death sentence be, and

appear to be, based on reason rather than caprice or emotion."

Gardner . Florida, 430 U.S. Auna at 358 (opinion of Stevens,

Stewart and Powell, JJ.).

3. Disproportionality

When this Court in 1976 approved the Georgia, Florida and

Texas capital-sentencing statutues on their face, Gregg .

Georgia, supra; Proffitt vy. Flocida, 428 U.S. 242 (1976); Jurek

L. Texas, 428 U.S. 262 (1976); it did so on the assumption that

the statute at issue, as interpreted by the highest courts of the

states, would guarantee against the arbitrary and capricious

infliction of the death penalty which had been condemned in

Eur nan . Georgia, 408 U.S. 238 (1972). The Court placed

particular reliance on the procedures for appellate review, Cregg

yw. Georgia. Auna, 428 U.S. at 166-168, 204-06 (opinion of

Stewart, Powell and Stevens, JJ.): id, at 222-24 (White and

Rehnquist, JJ. and Burger, C.., concurring), viewing it as an’

effective means by which the state would insure that the death

penalty would be applied in a fair, rational, consistent and

even-handed manner, Proffitt L. Florida. supra, 428 U.S. at 259-

60; Jucek XL. Texas. aupra, 428 U.S. at 276; see 1% Gardner L

RFlocida, 430 U.S. 349, 361 (1977), so that similar cases would

reach similar results, Gregg vy. Georgia. AE, 428 U.S. at 198,

208 (opinion of Stewart, Powell and Stevens, J. Ad, at 223

(white, J. concurring); Proffitt vy. Haid. aupra, 428 U.S. at

251, 253, 258 (opinion of Stewart, Powell and Stevens, JJ.);

ducek vy. Texas. An, 428 U.S. at 270, (opinion of Stewart,

Powell and Stevens, JJ.) id, at 279 (White and Rehnquist, JJ.,

and Burger, J., concurring) and there would be « “meaningful

basis for distinguishing the few cases in which (the death

penalty | is imposed from the many cases in which it is not.“

Gress . Georgia. aupra, 428 U.S. at 198, quoting Furman X.

Georgia, aupra, 408 U.S. at 313 (White, J., concurring).

The comparison of the judgment in this case with judgments

under the same Missouri statutes and other cases set forth in

Judge Seiler's opinion commencing at the bottom of p. 10

(Appendix A) 627 8. u. 20 at 606) is thorough, compelling and

complete up to the date of the decision. We will not burden the

Court by repeating it here.

We would point out that just as the Prosecutor expressly

conceded in Godfrey . Georgia, 446 U.S. 420, that there was no

evidence of torture, the State in this case implicitly conceded

the lack of any such evidence by deleting the statutory words

"torture ot from Instruction No, 19 and from the verdict tors.

These two words are an integral part of the statutory aggravating

circumstance, 565.012.2(7), with which he was charged in the

notice of evidence of aggravation, but they were not included in

the submission to the jury.

The Missouri Court, Op. 24, brushed off the no-torture

argument, saying:

"Appellant argues that there was no torture

involved and thus a reversal of the death sentence is

required under Godfrey. aupra. However, it should be

pointed out that if Mr. Dave was dead after the initial

shot, the second blast, deliberately performed in the

manner described, would have served to mutilate the

corpse, a macabre purpose demonstrating depravity. If,

on the other hand, Mansfield Dave was still alive, the

second shot was to insure the killing, and the first

blast from the sawed-off shotgun must have inflicted

extreme suffering."

Quite apart from the newly manufactured element of “macabre

purpose,” this speculative non-sequitur is an impossibly long

fetch to get the constitutionally-necessary element of torture

into this case. At best, it is a conclusion of the appellate

court, not of the jury, the triers of the fact, to whom this

statutory element of torture was not even submitted, there having

been no evidence of it.

In the only other Missouri case under this statute, in which

Geath was affirmed, Bercers vy. State, 618 &.W.2d 1 (Mo. banc.

1981) cert. den. . U. 8s. , 102 S.Ct. 432, there was torture

consisting of abduction, multiple rape and sexual abuse,

strangulation and beating.

All the other Missouri cases adjudged under this statute

have resulted in sentences of imprisonment. Nearly all of them

involved torture, abduction, sexual abuse, beatings, stranglings,

multiple stabbings, multiple shootings, rejecting a child's plea

for mercy, etc. They are described in synopsis in Judge

Seiler's opinion at p. 11, et seg... Appendix X., 627 8. u. 2d 1.0.

629.

Since the decision in Newlon's case, two more cases in which

conviction for Capital Murder were affirmed were handed down by

the Missouri Supreme Court, both on Pebruary 9, 1982: Kate of

Bissouri vy. Greathouse, 627 8... 2d 592 (Mo. 1978) and State of

Bissouri . III. No. 62026. Greathouse's sentence of life

imprisonment was affirmed, Mcllvoy's sentence of death was

reduced to life imprisonment without possiblity of probation or

parole for fifty years.

Greathouse, a 17 year old boy attacked his uncle and

benefactor with an ax, struggled with him for possession of a gun

and shot him eight times. He buried the body and tools, covering

them with straw and the next day, flooded it with gasoline and

burned it.

Ncllvoy, a killer hired by a wife who had been convicted and

sentenced for life for the same crime, shot the woman's husband

from ambush five times with a .22 caliber rifle. The testimony

was that the victim would probably have bled to death within five

minutes.

Lastly, Newlon's accomplice, Walter West, guilty of the same

crime as Newlon, according to the prosecutor who called him to

the stand, was given a term of ten years imprisonment. Franz

Williams, the other person identified as being in the store at

the time of the shooting, was allowed to plead guilty to the

reduced charge of Murder in the First Degree and an agreed upon

sentence of life imprisonment with no restrictions on possibility

of probation or parole was imposed.

Newlon's death sentence cannot be rationally reconciled with

the judgment. of the Missouri Courts in the other cases of

Capital Murder in which punishments were imposed under the sane

statute.

The statute, as applied in his case, is unconstitutionally

vague, discriminatory, standardless, disproportionate and random.

As so applied to this judgment, it deprives Newlon of his life

without due process of law and subjects him to the cruel and

unusual punishment of death.

The judgment of death should be reversed.

CONCLUSION

Por the reasons set forth above it is respectfully submitted

that this Petition for Writ of Certiorari should be granted.

Respectfully tted,

22 Dobe 1

Lon Rocket

130 8. Bemiston, Suite 405

154 KR. Meramec, Suite 200

Clayton, Missouri 63105

(314) 721-6040

Counsel for Petitioner

)

P Petitioner )

v. 1. U I COG 0

STATE OF MISSOURI

Respondent U

Petitioner, Rayfield Newlon, who is now incarcerated in the

Missouri Penitentiary, asks leave to file the attached Petition

for Writ of Certiorari to the Supreme Court of the State of

Missouri without prepayment of costs and to proceed in forma

pauperis. Leave was granted allowing Petitioner to proceed in

forms pauperis by the Circuit Court of St. Louis County and the

Supreme Court of the State of Missouri. The Petitioner's

affidavit in support of this Petition is attached hereto,

chard . Sindel, #23406

Attorney for Petitioner

15A K. Meramec, Ste. 200

Clayton, Missouri 63105

314/721-6040

)

‘ Petitioner

. No.

STATE OF MISSOURI &

Respondent )

I, Rayfield Newlon, being first duly sworn according to law,

depose and say that I am the Petitioner in the above-entitied

cause, and, in support of my application for leave to proceed

without being required to prepay costs or fees, state:

1. Because of my poverty I am unable to pay the costs of

said cause.

2. I am unable to give security for the same.

3. I believe that I am entitled to the redress I seek in

said cause.

4. The nature of said cause is briefly stated as follows:

I was found guilty of Capital Murder and sentenced to death,

The State filed notice that upon retrial the State would produce

identical evidence of aggravation and again seek the death

penalty. I filed a motion to strike the State's evidence and

aggravation, and the trial court announced its intention to

sustain my motion. The State sought and received a writ of

prohibition against the trial court. The Supreme Court of

Missouri ordered the writ be made absolute on March 9, 1982, upon

denying my request for a rehearing thereby permitting the State

to again seek the death penalty on retrial. My petition filed

herewith seeks a ceview of that judgment. The judgment and

sentence of the jury was affirmed by the Missouri Supreme Court

on February 9, 1982. Several constitutional issues were argued

before the Missouri Supreme Court and I now seek redress from

Subscribed and sworn to this . day of

that Court's ruling.

‘

My Commission Expires:

OSCAR 0D DUNGAR

My Cee taperes ee

RAYFIELD neue

er ee ee ee —L—' ee

I, Richacdéd . Sindel, being first duly sworn according to

law, depose and say that I am the attorney appointed to represent

the Petitioner in the above-entitled case; that in support of his

motion to proceed on appeal without being required to prepay

fees, costs or give security therefor, I state that I have

personal knowledge of Petitioner's financial conditions and

because of his poverty he is ursble to pay the costs of said

proceeding or to give security therefor; that I believe as does

Petitioner that he is entitled to redress; and that the issues

which he wishes to present in his Petition for Certioreri are the

following:

1. Whether a judgment of death based solely on depravity of

mind is unconstitutional under the Due Process and Equal

Protection clauses of Amendments V and XIV and the Cruel and

Unusual Punishment Clause of Amendment VIII, where demonstrably,

a. the sentencing jury did not know what was meant by

depravity of mind, and

d. the sentencing jury did not know nor find whose

mind was depraved.

2. Do arguments by the State, at the penalty phase of a

capital trial, which

a. invite the jury to consider the possibility of

. - .», ihr "a a mee a ”

eal —_— aa | at rer = Lad — a —.

Petitioner's early release by legislative enactment or

governmental pardon, and

b. invoke fear, passion and prejudice in the jury

against the Petitioner;

violate Petitioner's rights to due process of law under the

Pifth, Eighth and Poucteenth Amendments to the United States

Constitution for the reason that such arguments are extraneous,

speculative and inflammatory.

3. Is a judgment of death an unconstitetionally excessive

and disproportionate penalty for this Defendant,

a. who was arguably not found to have taken or

intended to take the life of the victim; ane

d. when compsred to the punishments imposed under the

same statute in other Missouri cases;

thereby rendering the judgment so random, arbitrary and

capricious as to be unconstitutional and deprive the Defendant of

due process of lew under the Fifth, Eighth and Fourteenth

Amendments to the United States Constitution.

and, in support of this application for leave to proceed without

being required to prepay costs or fees, state:

1. Petitioner is not employed and has not been eaployed

since his incarceration in 1978. :

2. Be receives no income from any business, profession

or other form of self-employment, or in the form of rent

payments, interest, dividends or other sources.

3. Se Goes not own any cash, checking or savings accounts.

4. Se Goes not own any real estate, stocks, bonds, notes,

automobiles or other valuable property.

3. ‘There are no persons at present who are dependent on

Petitioner for his support.

— eT a

Gets ae 7, es

$7. (Cs COUNTY

and svorn to before me, a Notary Public, e ff

; , —

Gay of May, 1982.

ty Commission Bxpires:

„

1, Rayfield Newlon, being first duly sworn according to law,

depose and say that 1 am the the Petitioner in the above-entitled

case; that in support of ay motion to proceed on appeal without

being required to prepay fees, costs or give security therefor, 1

state that because of my poverty 1 am unable to pay the costs of

said proceeding or to give security therefor; that 1 believe I as

entitled to redress; and that the issues which I wish to present

in my Petition for Certiorari are the following:

1. whether 6 judgment of death based solely on depravity of

ind is unconstitutional under the Due Process ané Equal

Protection clauses of Amendsents V and XIV and the Cruel and

Unusual Punishment Clause of Amendment VIII, where demonstrably,

a. the sentencing jury did not know what was meant by

depravity of mind, and

b. the sentencing jury did not know not find whose

mind vas depraved.

2. Do arguments by the State, at the penalty phase of «

cepital trial, which

a. invite the jury to consider the possibility of

Petitioner's early release by legislative enactment or

governmental pardon, and

b. invoke fear, pession and prejudice in the jury

le i

1 a 3

1 E ars N ny 0 * f 2 * * 2 8

. * 0 * : : & . 4

* 7 ~ a 8 — N ry *

against the Petitioner;

violate Petitioner's rights to due process of lew under the

enn Bighth and Pourteenth Amendments to the United States

Constitution for the reason that such arguments are extraneous,

speculative and inflammatory.

3. Is @ judguent of death an unconstitutionally excessive

and disproportionate penalty for this Defendant,

a. who wes arguably not found to have taken or

intended to take the life of the victim; and

b when compared to the punishments imposed under the

same statute in other Missouri cases;

thereby rendering the judgment so rendos, arbitrary and

capricious as to be unconstitutional and deprive the Defendant of

due process of law under the Fifth, Sighth and Prourteenth

Amendments to the United States Constitution.

and, in support of this application for leave to proceed without

being required to prepay costs or fees, state:

1. I am not employed. I have not been employed since

my incarceration in 1978.

2. 1 receive no income from any business, profession

oc other form of self-employment, or in the fore of rent

payments, interest, dividends or other sources.

3. 1 60 not own any cash, checking or savings accounts.

4. 1 60 not own any real estate, stocks, bonds, notes,

automobiles or other valeable property.

3. There ere no persons at present who are dependent on

me for my support.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

“i er.

New)

Subscribed and sworn to before me, a Notary Public, this .

day of May, 1982. . aA,

Notary Public

My Commission Expires:

Aug, VlIey

isouri

ummm,” ys

STATE OF M SSOURI,

DUPLICATE

Responden OF FILING ON

v. 9. 61798

FEB 9 1987

RAYFIELD NEWLON,

yee sos CLERK SUPREME CouRt

APPEAL FROM T S COUNTY

Hono

Appellant stands cone § 565.001, RSMo

1978, by o jury which, in the punishment phase of trial, § 565.904,

RSMo 19748, fixed the penalty at death, § 565.008, RSMo 1978, and

judgment was rendered accordingly. Direct appeal to this Court

lies in such cases for consideration of the punishment essessed,

§ 565.014, RSMo 1978, as well as the several claims of error.

Are. V, 5 1, Wo. const.

For his assiqnments of error appellant asserts: (1) facial

invalidity of the death penalty; (2) improper excuse for cause of

three veniremen cxpressing an unwillingness to consider imposition

of the death penalty; (3) prejudice in the verdict directing

instruction which failed to require a finding of the mental state

necessary for capital murder; (4) failure of the trial court to

sua sponte control prosecutorial comment; (5) improper limitation

of impeachment «! a State's witness; and (6) impermissible vagueness

and misapplication of § 565.912.2(7), RSMo 1978, on which the punish-

ment was predicated, rendering the sentence a nullity.

Yrom the substantial evidence adduced supportive of the verdict

the jury could reasonably have found the following: On April 24,

1978, at approximately 10:20 p.m., Mr. Mansfield Dave sent his wife

APPENDIX A

and son home from the “Quick Shop" “convenience” store they operated

as a family in Kinlock. About twenty mintues later, an alarm sounded

alerting Mrs. Dave to possible trouble at the store and when she ran

there, she found her husband on the floor dead or @ying from two

shotgun wounds in the upper body.

This steady flow of events that fateful April 24 led to Mansfield

Dave's murder. Earlier in the day appellant brought a single shot

16 gauge shotgun to the home of Walter West, a friend of appellant

for more than 10 years. At appellant's request, West brought him a

hacksaw which they used to saw off portions of the barrel and the

stock. The shotgun so shortened measured about 22 inches and could

be concealed beneath a short jacket or inserted barrel first in the

waistband of a man's trousers with a shirt or jacket over the stock.

Leaving the home they walked along a back road to a liquor store,

and on the way appellant, who had seven or eight shells in his

pocket, test fired the gun into some weeds. During this time

appellant suggested they rob Mr. Dave's “conveniency” store because

he wantec “some money”. Reaching the liquor store, appellant, who

had concealed the gun in his heavy fur-trimmed jacket which extended

to his mid-thigh, bought a six-pack of beer, and as they left, West

flagged down a passing car driven by Franz Williams, another friend

who had attended school with appellant through the seventh grade.

The two men entered Williams’ car, and when they told him of the

robbery plan, Williams agreed to join the scheme. With Williams

driving, the trio went to Mr. Dave's Quick Shop where West, apparently

to size the situation, entered the store, bought a pack of cigarettes

and returning to the car reported there were too many people present

to carry out the robbery at that time. The men drove back to the

liquor store and purchased another Six-pack of beer, then continued

cruising the neighborhood in Williams’ car.

At approximately 10:30 p.m., the three conspirators again drove

to the victim's store and found the customers had gone. Only Mr. Dave

remained. Williams and appellant then entered the store while West,

who remained in the car, drove to a place in front of the building to

permit a view of the store's interior. Williams went toward a soda

case in the rear as appellant walked to the sales counter behind which

Mr. Dave was standing. Above that counter, plexiglass panels formed

@ partial physical, though not a visual, screen for the back counter

area. Appellant. stationed himself at a point where an opening occurred

in the screen and there confronted Mr. Dave who after a moment's conver-

sation, turned his back apparently to get cigarettes from a rack. It

was then that appellant drew the sawed-off shotgun concealed in his

clothing and aimed at his victim. As Mr. Dave turned back toward the

counter, appellant with a blast from the shotgun knocked him to the

floor. Appellant then deliberately broke open the single action gun,

extracted the spent shell, reloaded! and peering over the counter with

Williams, who had by then come to the front of the store, once more

hand cocked the gun, took aim and again shot Mr. Dave. He again broke

open the gun, extracted the second spent shell and followed Williams

from the store. Once outside the two ran in different directions but

were shortly picked up by West in the car and as appellant reentered

the car he stated that he had to burn“ (kill) Mr. Dave. Though the

robbery plan failed, as no money was toben from the store, the murder

succeeded when Mr. Dave died from the wounds, one in the upper left

chest and the other in the upper left shoulder.

After Mrs. Dave heard the alare*

and was running to the store,

she saw Williams and noted he was not carrying an object of any kind,

which is corroborative of the testimony that appellant (not Williams)

i these activities were described in a general way by witness

West. The details of the gun, its mechanism and the operation of

loading, hand cocking and extracting the shells were determined

from a full examination of the exhibits.

2 he alarm which brought Mrs. Dave to the store was heard by West

shortly after the second shotgun blast. Though counsel suggests on

1 that Mr. Dave's conduct (which included activating the alarm)

ght have caused the shooting, appellant in his statements to the

police, made nv mention of the ularm, and in his trial testimony,

Claimed he was not present at the scene, belying counsel's argument.

When Mrs. Dave reached her husband after the shooting, he was prone

behind the counter with a qun (apparently a pistol) rtially

in his pocket. Nothing in the record, however, supplies a possible

nexus to the killing.

had the gun and did the killing. The police were promptly summoned

to the scene and in their investigation found two spent 16 gauge

shotgun shells and, sitting on the counter, a col bottle of Nehi

Orange soda bearing William's fingerprints. This too corroborates

the testimony that Williams had gone to the rear of the store to get

the soft drink from the case while appellant confronted and shot

Mr. Dave at the counter near the front. The night after the homicide,

appellant delivered the shotaun to West's home where West applied some

tape on the shortened stock which had loosened, and later asked his

cousin, Kevin Hughes, to take the gun from the house. Hughes did so,

but apparently apprehensive of the situation, delivered the gun to

Chief Patton of the Kinlock Police and was paid $24. Defense counse!

characterized Hughes to the jury as the “little snitch.”

The police in their later investigation found the sawed-off

portions of the barrel and stock at West's house and determined the

shotgun was the weapon which had fired the two spent cartridges found

at the murder scene.

Appellant was at the time of the murder a 23 year old black man,

with an llth grade education. He had four convictions of burglary

second degree, three convictions of stesling and one conviction of

larceny. Though, the record is unclear how much total time was imposed

his sentences totaled at least 12 years and perhaps more. Appellant

had served part of this time in the venitentiary. In an initial state-

ment to the police, he admitted his presence at the scene but contended

he had stayed in the car while West and Williams went inside the store.

He later made 4 videotaped statement and changed his story, admitting

that Williams and indeed he had entered the store but asserted that

Williams did the shooting while he, appellant, went to the soda case

at the rear of the store. In this videotaped statement he also admitted

he knew the purpose of their entering the store was to carry out a

“heist” (robbery) and in this statenent he also asserted that Franz

Williams while standing near the car before entering the store stated

that “I iFfranz Williams) might have to shoot him (Mr. Dave) because he

knows me". Thus the possibility of killing Mr. Dave to eliminate any

witness was implicitly 4 part of the plan. in this connection it is

important to note that appellant knew the place“, that he had been in

the store on prior occasions and was familiar with the store and some

of the people who worked there. He knew the store was close by and

that the men could walk“ to it. Rasy accessibility appears to have

been a consideration in choosing that store to rob, all of which sug-

gests that destroying the witness was a motive for the killing. At

trial, again changing his story, appellant stated he was not present

at the scene of the crime.

Appellant contends that the death penalty authorized by § 565.908,

RSMo 1978, is unconstitutional under the United States and “Missouri

Constitutions. When considering such “statutory validity” challences

we are mindful that our legislature's enactments generally enjoy a

presumption of constitutionality and will be declared void only when

manifestly infringing a constitutional provision. State v. Hamey, 67

S.W. 620, 628 (Mo. banc’ 1902). See alno, State v. Mitchell, 563

S. u. 2d 18, 26 (Mo. banc 1978). In an, determination as to constitu-

tionality of legislatively prescribed punishment, validity is presumed

an! those sceking invalidation are heavily burdened to demonstrate it

as barberous or excessive. State v. Hiqyins, 592 S.W.2d 151, 155

(Mo. banc 1979), app. disminsed, 446 U.S. 902 (1989). Attentive to

these principles we examine appellant's contentions. First: that the

death penalty violates the cruel and unusual punishment clause of the

Eighth Amendment and the due process provision of the Fourteenth

Amendment. ‘This assertion runs contrary to the decisions of the

United States Supreme Court in Greqy v. Georgia, 428 U.S. 153, 169,

96 S.Ct. 2909, 2923, 49 L.Ed. 2d 859, 872 (1976); Proffitt v. Florida,

428 U.S. 242, 247, 96 S.Ct. 2960, 2964, 49 L. Ed. 2d 913 (1976);

Jurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 2954, 49 L.Ed. 20

929 (1976). The Court in Gregg reviewing the Georgia statutes’ death

sentence provisions found them constitutional. The analysis there is

appropriate in this challenge to “issouri’s statute which in essential

part tracks that of Georgia leaving littie doubt that our death

sentence provisions, properly imposed, are sound under the Federal

Constitution and we so hold.

Second: Appellant, without supporting authority, suggests the

Geath penalty is violative of the cruel and unusual punishment pro-

vision of Art. I, § 21, and due process provision of Art. I, § 10,

of the Missouri Constitution. We declared § 565.098, RSMo 1978,

valid against such attack under Art. I, § 21, in State ex rel.

Westfall v. Mason, 594 8. v. 2d 908, 916-17 (Mo. banc 1980), vacated

on other grounds, Bullington v. Missouri, 451 U.S. 430 (1981). In

so deciding we refused to extend the reach of Art. I, § 21 as re-

que_.ed, and arrogate to ourselves a policy decision properly

within the legislative province. Similarly we now refuse to stretch

the meaning of Art. I, § 10 to invalidate the death penalty, beyond

the limits of the due process requirements of the Fourteenth Amendment

to the U.S. Constitution. More recently in State v. Mercer, 618

8. u. 20 1 (Mo. banc 1981), cert. denied, _—U.S. ___, this Court re-

viewed the app est ion of Missouri's capital murder statutes and af-

firming the conviction and death sentence there imposed, necessarily

accepted the facial constitutionality of the death penalty provisions.

Third: Appellant maintains that the death penalty is prohibited

by the Missouri Constitution, Art. I, § 2, which provides:

That all constitutional t

intended to promote | ral wella

t ie; that al rsons 1

r ’ fe, 1

ness and en °

their ; all persons are

crea equa are entitled to equal rights

and n under the law;

t : 10 N

— —

This novel proposal requires a strained construction of that section

contrary to its obvious intendment, Without question the State of

Missouri is not prohibited by this section from imposing the death

penalty on depraved murderers. Instead the State is charged with

- th. ay 4 ‘ — Se > = n

conferring “security” for the ite“ and happiness“ of its citizens

generally. Such is the thrust of the section and if “government”

fails in these things (e.g. providing « deterrent to murder) and

. Goes not “confer this security, it fails in ite chief design.”

Further, the strained construction here proposed flies in the

face of the following related constitutional provisions by which

— the framers of our Constitution demonstratively intended the

death penalty could and would be imposed in appropriate cases.

Art. I, § 10: “...no person shall be deprived of life, liberty

or property without due process of law." (Emphasis ours). Art. I,

$ 19: “That no person shall be compelled to testify against himself

in a criminal cause, nor shall any person be put again in jeopardy

of life or liberty for the same offense, after being once acquitted

by @ jury:;...* (Bmphieis ours). Art. I, § 20: „11 persons

shall be bailable by sufficient sureties, except for capital offenses,

when the proof is evident or the presumption great.” (Emphasis ours).

In light of the clear intent of Missouri's Constitution and the

extraordinary increase of murder, accompanied all too frequently by

incidents of cold brutality exceeding the pale of a civilized people,

we hold that § 565.008, RSMo 1978, violates neither Sections 2, 10 or

21 of Art. I of the Missouri Constitution.

11.

We turn now to appellant's contention that the trial court

committed plain error by its Instruction No. 9. This allegation

of error was not raised by. objection at trial nor preserved for

review in appellant's motion for new *rial. It is raised for the

first time in appellant's brief and will be reviewed for plain

error under Rule 29.12. In submitting the issue of appellant's

guilt of capital murder as 4n accessory, the trial court gave,

amony others, the following instructions:

r — — r 7 = ~€ @ = +, te a eo oti Ss aa * 1 —, .-

INSTRUCTION WO. 5 - MAI-CR 2.10

All persons are guilty who know y act to-

gether with the common purpose of tting an

offense, or who knowingly and intentionally aid

or encourage another in committing it, and at-

ever one does in furtherance of the offense is

the act of each of them.

The presence of a person at or ncar the scene

of an cfifense at the time it was committed is alone

not sufficient to make him responsible therefor,

although his presence may be considored together

with ail cf the evidence in determining his guilt

or innocence.

INSTRUCTION NO. 8 - MAI-CR2d 2.14

In this case you will be instructed that you

may find the defendant cither not guilty of any

offense or guilty of either capital murder, murder

in the first degree, murder in the second degree

or manslaughter. In that connection you are in-

structed that when two or more persons are crimi-

nally responsible for an offense which is divided

into degrees, each such person is guilty of that

deqree which is compatible with that state of

mind with which he acted in committing the offense

and compatible with his own accountability for any

aggravating or mitigating fact or circumstance.

INSTRUCTION NO. 9 - MAI-CR2d 15.02,

MODIFIED BY MAI-CK 2.12

If you find and believe from the evidence

beyond a reasonable doubt:

First, that on or about April 24, 1978, in

the County of St. Louis, State of

Missouri, the defendant or another

caused the death of Mansfield Dave by

shooting him, and

Second, that the defendant or another intended

to take the life of Mansfield Dave, and

Third, that the defendant or another knew

that they were practically certain to

cause the death of Mansfield Dave, and

Fourth, that the defendant or another considered

taking the life of Mansfield Dave and re-

flected upon this matte: coolly and fully

before doing so, and

Fifth, that the defendant acied either lone or

’

Appellant charges plain error in the form of Instruction No. 9.

The murder occurred April 24, 1978, and at that time the statute in

effect was § 565.001, RSMo 1978, proscribing certain acts as

capital murder. In connection with the capital murder statute in-

struction MAI-CR2d 15.02 was promulgated for trials of homicides

occurring after May 25, 1977. Also in effect at the time of the

murder was § 556.170, RSMo 1969, delineating responsibilities of

accessories to murder and prescribing the punishment for their con-

@uct. MAI-CR 2.12 was promulgated as its accompanying instruction.

In sum, these Statutes and their corrolary instructions were those in

vogue for crimes committed on April 24, 1978, the time of the murder.

See, State v. Lute, 608 s. u. 2d 381, 383 (Mo. banc 1980). This Court

in Lute, citing State ex rel. Peach v. Bloom, 576 8. u. 2d 744, 747

(Mo. banc 1979), stated, the ‘provisions of law existing prior

to the new criminal code [are] applicable to all offenses committed

prior to January 1, 17. Here the trial court, consistent with

the Lute rule applied the statutes ent employed the instructions

prescribed for use in criminal cases effective at the time of the

murder. Appellant, however, complains that because the trial oc-

curred after January 1, 197%, the effective date of the new Criminal

Code, the new accessory statute, § 562.041 and the corresponding ap-

proved instruction for that section, Ii. e., MAI-CR2d 2.12, should

have been submitted. This contention is not well taken and it would

have been error to have done as appellant now urges. See, State v.

Lute, supra.

Appellant contends Instruction No. 9 fails to apprise the jury

of the elements of capital murder found in § 565.001, RSMo 1978.

That section defines capita) murder as “Any person who unlawfully,

willfully, knowingly, deliberately, and with premeditation kills or

causes the killing of another human being is guiity of the offense

of capital murder.“ While Instruction No. 9 [MAI-CR24 15.02, MAI-CR

2. 121 does not utilize the precise statutory words, it nevertheless

employs terms which have been determined as proper substitutes by

our courts. ‘Indeed the terms utilized in Instruction No. 9 are

preferable for instructional purposes in that they more clearly

set forth the mental state and other aspects of the crime necessary

for conviction of capital murder. In particular, appellant complains

the term “unlawfully” is not employed in Instruction.No. 9. This

contention misses the point and is without merit. The question of

whether the homicide is lawful or unlawful is in the first instance

@ question of law to be decided by the court at the close of the

evidence when determining whether a submissible case has been made.

At that point there was not a scintilla of evidence suggesting the

killing was let ul“ or justifiable (which would have required an-

fying 15.02 (No. 9) by one of the forms set forth at 2.40, et seq.)

or excusable {which would have required modifying 15.02 by 2.28).

Hence, there is no requirement that the term “unlawfully” or an

equivalent be employed in this instance.

The statutory elements “willfully” and “knowingly” are ade-

quately reflected in the second and third paragraphs of jnstruction

No. 9 which require a finding that defendant intended to take the

life and knew he was practically certain to cause death. State v.

Thomas, 595 8. u. 20 325, 328 (Mo.App. 1980).

The element “deliberately” is appropriately set forth in the

fourth paragraph of Instruction No. 9 which mandates that defendant

coolly and fully reflected on this act. See, State v. Turner,

623 S.W.2d 4, 7 (Mo. banc 1981); State v. Strickland, 609 8. u. 20

392, 394 (Mo. banc 1980). The element of premeditation is defined

in Missouri as thought beforehand for any length of time however

short. State v. Turner, supra at 7. The equivalent term “considered”

in No. 9 supplies the requirement of premeditation prescribed in the

statute. Accordingly we hold that Instruction Vo. 9% correctly re-

quires the finding of the statutory elements of capital murder.

. * 1 ol + A a ig > 9 * w= Ce.

Appellant next contends the instructions given were fatally

Gefective in that they did not require a finding of premeditation

in appellant, and complains of the phrase “defendant or another“

used in each paragraph in Instruction No. 9. This phrase is spe-

cifically provided by Instruction MAI-CR 2.12 and Notes on Use when

there is evidence of accessory liability, and the mode of melding

2.12 in the structure of 15.02, utilized here, is in the form pre-

scribed. An instruction thus in the format of MAI-CR will not be

deemed error. State v. Easton, 577 8. v. 24 953, 958 (Mo.App. 1979),

Cert. denied, 444 U.S. 863; State v. Champion, 560 8. u. 2 9063, :

905-06 (Mo.App. 1978). Purther, according to Missouri law, pre-

nod tet ton may be found in another and imputed to defendant as con-

templated by the language of Instruction No. 9. That language when

read with the general Instructions No. 5 and No. 8, requires that

appellant manifest the requisite intent for perpetration of the

offense. It suffices if defendant “knowingly acted in concert with

another for the common purpose of committing the offense, or know-

ingly and intentionally aided or encouraged the other in committing

the offense.“ State v. Turner, 623 8. v. 24 4, 8 (Mo. bane 1981);

State v. Strickland, 60% S.W.24 392, 395 (Mm. banc 1980).

Appellant next urges that for a conviction under § 565.001,

RSMo 1978, the accused must be found to have premeditated, and the

instructions fails in this regard. Missouri has abolished the dis-

tet ions between principals in the first degrec and accessories.

3 appellant rsttempts to bolster his contention by arguing the

evidence showed no premeditation, hence, had the jury been instructed

that premeditation personal to appellant was necessary, he would

have been acquitted. This is an argument that the evidence was

insufficient to sustain appellant's conviction, rather than a claim

of instructional error. Further, we note the evidence, as set forth

above, was sufficient to sustain appellant's capital murder convic-

tion, whether he acted alone or as an accessory.

Appellant would also lend credence to his claims of instruc-

tional error by alleging that the prosecutor even arqued to the jury

that —— need not personally have premeditated. Such allega-

tion, r, is pertinont only to a contention of improper argument, |

not instructional] ertor.

State v. Lute, 608 8. u. 20 381, 383-84 (Mo. banc 1980); State v.

Easton, 577 8. u. 24 953, 957 (W. p. 1979), cert. denied, 444 U.S.

863. Under § 556.170, RSMo 1969, effective at the time of the murder

in question, one may be liable as principal by aiding and abetting

another. MMAI-CR 2.10 (Instruction No. 5) and 2.12 (Instruction No. 9)

reflect this tenet by imposing quilt on one found to be an accessory

to the same degree that guilt is imposed upon a principal. Contrary

tc appellant's assertions, Instructions No. 9 and No. 5 did not permit

the jury to find appellant guilty of capital murder solely on the

basis that *another” possessed the necessary mental state for capital

murder. These instructions correctly required that appellant be found

(1) to have manifested the requisite intent and did the killing or (2)

that he knowingly and with a common purpose aided one who killed with

the requisite intent for capital murder. See, State vy. Turner, 623

8. . 2d 4, 8 (Mo. banc 1981); State v. Grebe, 461 8. u. 20 265 (Mo. 1970).

Paragraph “Fifth” of Instruction No. 9 contains the essence of

this proposition which is amplified and made abundantly clear by the

provisions of the first paragraph of Instruction No. 5 and Instruction

No. 8. We find no error, a fortiori no plain error, in the given

instructions.

111.

It is next asserted that in excusing three prospective jurors the

trial court violated the standards of Witherspoon v. Iljinois, 391

U.S. 510, 86 S.Ct. 1779, 20 T. Kd. 2d 776 (1968). There it was held error

to excuse veniremen voicing general objections to the death penalty.

In its reiteration of the Witherspoon rule the Court in Davis v.

Georgia, 429 U.S. 122, 123, 97 S.Ct. , 400, 80 . a. 24 339, 341

(1976), stated: “Unless a venireman is ‘irrevocably committed, before

the trial has begun, to vote against the penalty of death regardless

of the facts and circumstances that might emerge in the course of the

proceedings’ ... he cannot be excluded...." Were the three excused

fall into the class properly excluded. Venirewoman Daily was asked by

the prosecutor: It after you were selected as a juror in this case,

instructions also virtually parallel current accessory

liability statutes, § 562.041, RSMo ~~

; \

} f * 1

wk, 8 2 1

29 ,

+ — 4 . * N

and you heard all of the evidence and deliberated and found the defen-

Gant guilty of capital murder....{the concluding phrase was restated

after objection by the defense) can you consider both sentences in

arriving at your verdict--which are the death penalty and the life

imprisonment without parole for fifty years?” “rs. Deily anewered

"no". Venizewoman Lang responded negatively to a very similar ques-

tion propounded by the trial judge. Venirewoman Marshall was asked by

the defense, in a question addressed to all the remaining venire

persons, IIe there anyone that should Mr. Newlon be convicted of

Capital murder ...who couldn't consider, ... the penalty of imprison-

ment as well as the death penalty?” She replied, "I would not con-

sider the death penalty." The response of each was unambiguous and

unmistakably clear. The administration of justice requires jurors who

will follow and not ignore the law. Adams v. Texas, 448 U.S. 38, 109

S.Ct. 2521, 65 L. b. 2 581 (1980); State v. Mercer, 618 8. u. 2 1, 6-7,

(Mo. banc 1981), cert. denied, U. 8. „ Appellant's claim of

error is without merit.

Iv.

Appellant would fault the trial court for what he contends is

Plein error’ in failing to sua sponte declare a mistrial following

remarks of the prosecutor in arqument during the punishment phase

of trial.“ When measuring this contention several familiar principles

bear reprise. Broad discretion rests with the trial court in the con-

trol of closing argument, with wide latitute accorded counsel in their :

summations. State z. Wood, 596 8. v. 20 394, 493 (Mo, banc 1980), cert.

denied, 449 U.S. 876; State v. Lansford, 594 S.W.24 617, 622 (Mo. banc

1980); State v. “urphy, 592 8. u. 20 727, 732-33 (Mo. banc 1979). A

conviction will be reversed for improper argument only if it is estab-

lished the complained of comments had a decisive effect on the jury's

— can be had only under the plain error rule because of 4

appellant's want of objection to any of the contested remarks.

Pere rss

i =

0 „pol lent stood convicted of capital murder. Wo question of

hs guilt remained. The jury was called then to

ion and mitigat The record of life, his prior crimes ond

. On. 0 s pr . >

* the hei cheracter of the surder as bore on the issue 2 ieee

ss apravity proper for consideration. 2

ia 21 *

> *

determination. “urphy, id. Indeed, relief should be rarely granted

on assertions of plain error as to closing argument, for where no

objection was lodged, trial strateqy is an important consideration and

such assertions are generally denied without explication. State v.

Bryant, 548 8. v. 2 209, 211 (Mo.App. 1977). ‘This because the absence

of objection, request for admonishment to disregard, or for other

relief narrows the trial court's options, requiring uninvited inter-

ference with summation and a corresponding increase of the risk of

error by such intervention.

Nevertheless, appellant maintains the trial court abused its dis-

cretion by not voluntarily interrupting comments of the prosecutor's

during argument, grouped here in three categories.

First, appellant alleges the prosecutor by these comments sought

to enlarge the crime by appearing to have special knowledge outside

the record.’

Now, when I said initiall that this was a

difficult thing for me--I've —— Prossedter for

ten ars and ive never asked a jury for a death

1 but f can tell you in a candor, 1’ ve never

seen a man who deserved it more than Rayfield Newlon.

By returning vour verdict in this case,-- you

people found him guilty of capital murder--that either

means that you believe beyond a reasonable doubt that

he pulled the trigger, or that he had the frame of mind

that's consistent with pulling the trigger, and I sub-

mit to you, that Rayfield Newlon did pull the trigger,

and didn't pull it once, but pulled it twice--executed

an innocent man in cold blood.

So where do you go from there? I sy to you that

I never saw a man who deserved it more sa

that to u in lete sincerity, and it's my ob, as

I see it, to tall you thal

It is asserted these statements breach the rule that a prosecutor

may not express an opinion implying awareness of facts not available

to the jury. State v. Moore, 428 S.W.2d 563, 565 (Mo. 1968); State

v. Hart, 292 Mo. 74, 237 S.W. 473, 480-81 (1922). However, balanced

against this rule is the proposition that the prosecutor may state

his conclusion if it is fairly drawn from the evidence, and his

inferences need not seem necessarily warranted. State v. Jackson, 499

8. w. 2d 467, 471 (Mo. 1973); State v. Jones, 491 S.W.2d 271, 273 (Mo.

Italica portions of the quoted arquments are the phrases

to which appellant now objects. 0

1973); State x. Moore, supra; State v. Hart, supra, State v. Haynes,

528 S.W.2d 11, 13 (Mo.App. 1975). Further, prosecutorial comment

referring to facts not before the fury may be permissible, so long as

it does not imply special knowledge of evidence pointing to defendant's

guilt, State v. Moore, supra; see, State v. McKinney, 475 S.W.2d 51,

55 (Mo. 1971); State v. Coleman, 524 8. u. 2d 27, 33 (Mo.App. 1975), and

indeed the prosecutor may indicate a belief of quilt drawn directly

from the State's evidence. State v. Jackson, supra at 471. Here the

question of guilt had been settled. Only questions of aggravation and

mitigation going to the issue of punishment remained. The jury had

been confronted with substantial evidence pointing to the callous

nature of the crime and depravity of the murderer. The record demon-

strated a cold-blooded execution of an innocent man deserving of

better, to avoid identification and/or for the pleasure of killina,

linked with a total lack of remorse for the crime or sympathy for the

victim. The statements of the prosecutor were directed to the allega-

tion of depravity, a condition which could arquably be inferred from

the evidence. A similar remark, “If ever 1 heard a better case madc

of burglary second ...," was decmed permissible in Haynes. Id. at

13. We find no abuse of discretion by the trial court, and necessarily

no manifest injustice in not sua sponte declaring a mistrial hecause

of such statements.

The second yroup of comments now challenged, include the follow-

ing:

I submit to you that he deserves to die.

E to bicsthe the sans alr that tra.

Dave breathes. She's a widow with a son, and

he's a son with no Father. He doesn’t deserve

to breathe the same air.

Hefore you can take ®ayficld Newlons’ {sic} life,

you have to give him a lawyer and a fair trial -es

entitled to that, and he dot an excellent lawyer and a

fair trial and twelve fair citizens. f

a nerves the death penalty, under tl

8 only

avpropr r 2 28 ances. But, did

Mansfield Mave have his day in Court? If Rayfield

Newlon is killed he'll know his appointed hour and have

an opportunity to get his soul straightened out, and in a

condition to meet his Maker. I'm not saying this liahtl::,

or for dramatic effecta--not at all. How do we know if

44 |

4 > een *

2 Pa 5 r = ae “Te A. ala aa

Nr. Dave 8 meet his Maker, or what ition

s was in was blown away. Do you think he

ves a Care .««>

I'm telli u, that Rayfield Newlon deserves to die,

not only for what did, but T think it’s absolute:

critical to say to him and others like . t

u have t to stop ki nq. Gu ve —

estes and if you do this in St. Louis County you're

going to pay the price. You people have got the oppor-

tunity here to send out this message, and to send it

out all over St. Louis County--you're [sic] own con-

munity--and Kinlock is a part of your community--this

could have happened in Ladue, Lemay, Florissant, or

Ferguson~--these kinds of crimes happen every day and

go on happening, and you've got the opportunity to say

that Rayfield Newlon's in this area, if you're going to

0 your killing and keep on doing it--don't do it in

our community, because if you do, we're goi to kill

you because we got the right to do it; it's fair and

appropriate and it’s right--not cruel and not unusual

punishment--it's right. Did Mr. Newlon show any remorse

in the videotape? No. Did he show any remorse on the

witness stand? No. Did he show any reaction or emotion

when the verdict was returned last night? You look

ac him? No. He knew what was con he k that

what he did wou

--he's re ore

jou have that he'll be there fi!

ature could change the law. A it says no parole.

t doesn sa t can :

ir]

ance of that at all. i aw could h nhangec : at

Teast with death there is some as

ty reaction, and that’s ting

yee _Se come back with--that*s no bi a to

You know--when I talk about sending out

5 tl

MCS

~-wel ries Mansons wouldn't hear t

messa or tr D 3 Specks or the “sons of Sam"--

III. goa oar : ase thoes

r€ OF doe per dad er responsi what the

. ’ . °C 7 0 sie n

the same--a truer fashion, he's not insane. nis was

Simply a t ness venture--you know, Man't hear any

strange voices speaking to him, he just wanted some money,

and all that stood between him and the money, was “Mansfield

Dave, and he eliminated--executed his.

x] : — e ould you have k: ield?

think you would have--at least, I hope you would have :

3 5 do either one of those. If you thir :

ni | ne }. Onc ga n hop

I really don't have much more to say, but I hope to

impress upon you that this is trul war--I a “str

war“ and it’s justifiable nC

eet

Appellant maintains the court erred in failing to sua sponte pre-

vent these ret zs or to declare a mistrial because they improperly ber-

sonalized the crime, causing the jury to fear appellant, applied per-

sonal epithets to appellant, and arqued for the death penalty based on

an anticipation of appellant's future conduct. The record however,

warrants conclusions other than those urged by appellant. See, State

v. Hoskins, 569 S.W.2d 235, 236 (Mo.App. 1978); State v. Coleman, 524

S. u. 2d 27, 32 (Mo.App. 1975). A * of the prosecutor's entire

argument reveals a clear intent to impress upon the jury the serious

nature of the murder as part of a permissible plea for strict law

enforcement. We must not lose sight of the problem then before the

court and jury. The prosecutor was seeking the death penalty which in

his view was justified from the evidence and through analogy sought to

demonstrate the aptness of the penalty as a deterrent. In this setting

@ prosecutor may urge imposition of a severe sentence as 4 signal to

deter future crimes in a community. State v. Wright, 515 S.W.2d 421,

432 (Mo. banc 1974); State v. Laster, 293 S.W.2d 300, 306 (Mo. banc

1956), cert. denied, 352 U.S. 936; State v. Cole, 588 S.W.2d 94, 100

(Mo.App. 1979); State v. Bryant, 548 8. u. 2d 209, 212 (Mo.App. 1977).

Further, under evidence in this record it was not improper for the

prosecutor to refer to the prevelance of crime as a “street war” as it

appears from the evidence or as a matter of common knowledge, State v.

Hart, 237 S.W. 73, 481 (Mo. 1922), and to argue that it would be «4

reflection upon them to fail to convict under the evidence presented.

The prosecutor's reference to the victim's family was a legitimate

comparison of defendant to the victim, demonstrative of the inutile

nature of the slaying and that the senseless cruelty of this act re-

vealed a depravity justifying the death penalty as a deterrent to such

acts. See, State v. Jackson, 499 8. u. 2 467, 471 (Mo. 1973); State v.

Swenson, 551 8. uv. 2d 917, 920 (Mo.App. 1977). Appellant's assertion

that the prosecutor categorized him with certain notorious killers

misconstrues the argument in this regard. See, State v. Hoskins, 569

s. u. 2d 235, 236 (Mo.App. 1978); State v. Coleman, 524 8. v. 2 27, 32

(Mo.App. 1975). Taking the remark in context, it appears the prose-

cutor was urging that imposition of the death penalty in a case such as

this would serve as a better deterrent than it would to one of the

insane mass murderers mentioned. The other remarks arqued as having

impermissibly personalized the crime, or caused the jury to ‘ear

appellant and urged death to prevent future crime by appellant, were

coupled with comments generalizing the deterrent effect to others of a

strict sentence in this case. The thrust of the contested statements

was a plea for stricter law enforcement as a deterrent to crime. State

v. Swenson, 551 S.W.2d 917, 920 (Mo.App. 1977). It has long been

recognized that the prosecutor is permitted to argue such propositions

as the prevalence of crime in the community, the personal safety of its

inhabitants, and the jury's duty to uphold the law as well as infer-

ences from its failure to convict, and such pleas may call upon common

experience. State v. Rodriguez, 484 8. v. 2d 203, 207 (Mo. 1972); State

v. Jackson, 477 s. u. 20 47, 53 (Mo. 1972); State v. McKinney, 475 S.W.2d

51. 55 (Mc, 1971); State v. Burnett, 429 8. u. 2d 239, 246 (Mo. 1968);

and State v. Brauch, 529 8. u. 20 926, 931 (Mo.App. 1975).

Appellant's final challenge centers on the following comment:

Did Mr. Newlon show any remorse in the videotape?

No. Did he show any remorse on the witness stand?

No. Did he show any reaction or emotion when the

verdict was retu last night? You look at him?

ys" He TS what

he’ there before what assurances do u

at least w!

won ft any more crimes and the mes s loud

and clear rha Others will think twice before

comm A ry take a life just for money.

m sa tO you is if you come with a

life sentence without him i eligible for le

or 3 ars--that that won E an on

and that's 3 he's Seetag : to come with--

Nat big deal Th to +

t no 2 a t ma u

ge Ss attention come w ses We

sentence you to ath.

He relies on State v. Mobley, 369 S.W.2d 576, 580-81 (Mo. 1963), for

the proposition that the State may not arque a defendant's criminal

record as a reflection of his character and a basis for conviction,

nor to prevent future criminal acts by him. Mobley, however, is

inapposite. The argument there was in a unitary proceeding for deter-

mination of guilt on a burglary charge. Here testimony of appellant's

prior criminal convictions had entered the case as impeaching evidence

during his testimony in the guilt phase. Such evidence was available

for consideration durina the presentence (punishment phase) hearing

(§ 565.006.2) and was relevant to the issue of depravity, revealing

in part appellant's background to better assess the crime, the then

convicted criminal and the appropriate punishment. It was a permis-

sible subject for argument. The contention is denied.

The arguments directed to the jury's emotions were not peculiar

to the prosecution. The defense too made a strong appeal to the

sentiment as well as the minds of the jury, including the foliowing:

If you look around the Courtroom, Rayfield

Nasen“ t had any family here at all -- this week,

he hasn't had any friends here. It's been just

me and Rayfield.

I don't see how you can kill him. Rayfield is

twenty-four years old.

Now, the alternatives are, of course, fifty

years in prison without parole, or the death of

Rayfield. it you should let him live, he would

be seventy-four years old when he got out of

prison, and even though Mr. Westfall made refer-

ence to watching T. v., and going to the recreation

It is next contended that the trial court erred in refusing to

allow testimony of a defense witness to impeach William West's reputa-

tion. A single question was posed to defense witness Parker: does

he (West) have a reputation in Kinlock for truth and veracity?” Objec-

tion was sustained and no offer of proof nor further inquiry followed.

This allegation of error, not included in appellant's motion for new

trial, will be examined for plain error under Rule 29.12. While

testimonial evidence may be introduced to impeach a witness's reputation

for truth and veracity in the community, State v. Woods, 428 S.W.2d

521, 523 (Mo. 1968); State v. Cross, 343 8. u. 2d 20, 23 (Mo. 1961), the

trial court has wide discretion as to the admission of such evidence.

State v. Miles, 253 W. 427, 161 S.W. 766, 769 (Mo. 1913). West's

credibility had been repeatedly attacked throughout cross-examination

ring which prior felony convictions, as well as the voluminous rec-

ord of his prior inconsistent statements, were brought to the jury's

attention. West admitted and it was stipulated he had been convicted

of burglary second degree and stealing, as well as flourishing (a

deadly weapon), for which he received concurrent three year sentences.

These sentences were imposed only two days before he had been a) lowed

to plead guilty to murder in the second degree for his part in the

Mansfield Dave killing. Though he had not been sentenced, the State

had agreed to recommend ten years. This told the jury West had been

convicted of crimes involving dishonesty (burglary and stealing) and

8 (Cont'd)

rooms and things like that, -- you get up in the

morning and there are four grey walls with bars

at the end of the room. People in prison are not

people to associate with. People in prison get

killed -- it's a daily routine.

You know, I like to fish. If I were in prison,

1 wouldn't see a lake or a stream -- it's total

restriction for fifty years. Total restriction.

If you decide to kill him, they 11 take him

to the itentiary and put him in a chair and

strap him in, and pull a switch -- his eyes will

roll back in his head and his heart will stop and

life will end.

crimes of violence (the murder of “Mr. Dave), and had a profound

interest (the plea bargain for second degree murder) motivating his

testimony favorable to the State. Evidence of this "deal" in return

for his testimony was before the jury. Clearly, additional evidence

as to his general reputation could have been of marginal value as

impeachment.” Additionally, it is difficult to fault the court when

at the time in question it requested that defense counsel provide

some “authority” for allowing an answer to the question. While it

is not required that such authority be supplied, counsel made neither

offer of proof nor suggestion to assist the court. Wo relief was re-

quested. Indeed the matter was pursued no further during trial nor

raised in the motion for new trial. It cannot be said the trial

court is guilty of reversible error much less manifest injustice.

vi.

This Court reviews the sentence in capital murder cases when the

Geath penalty is imposed, § 565.014.1, and determines whether the

sentence was assessed under the infloence of passion, prejudice or

any other arbitrary factor, 8 565.014.3(1), and whether the evidence

supports the jury's finding of statutory aggravating circumstances

enumerated in § 565.012. § 565.014.3(2). Were the record reveals

that the death sentence fixed by the jury and imposed by the court

was not the result of passion, prejudice or any arbitrary factor. At

the first phase of the bifurcated proceeding mandated by § 565.006,

the jury returned a verdict finding appellant guilty of capital murder.

In the presentence hearing that followed, neither party presented ad-

ditional evidence but both arqued extensively the issue of punishment.

The jury was instructed on two agqravating circumstances: (1) whether

the defendant murdered “Mansfield Dave for the purpose of receiving money

or any other thing of monetary value, § 565.012.2(4); (2) whether the

915 @ somewhat analogous situation of a motion for a new trial

because of newly discovered evidence, testimony merely for _mpeachment

of a witness’ renn little weight, ay 2 8

such testimony w refused. v. 8. u.

— bie tar 5

(Mo. 1979 7 „ 60 8 ° 2 .

2 . . 1962); State v. e: 517 W. 2d

8 f me 8 Tee Pe ee, OO ae “ x 1 1 = “oe

murder of Mansfield Dave involved depravity of mind and that as a re-

sult thereof it was outraqeously or wantonly horrible or inhuman,

$ 565.012.2(7). The court also instructed the jury on these mitigating

circumstances: (1) whether the defendant was an accomplice in the

murder of Mansfield Dave and whether his participation was relatively

minor, § 565.012.3(4); (2) whether defendant acted under extreme duress

or substantial domination of another person, § 565.012.3(5); (35 the

age of the defendant at the time of the offense, § 565.012.3(7). The

jury found beyond a reasonable doubt the existence of the second sub-

mitted aggravating circumstance and the evidence supports the jury's

findings.

Appellant contends that § 565.012.2(7) is facially unconstitu-

tional by reason of its vagueness and is violative of the due process

clause of the Fourteenth Amendment to the United States Constitution

and Art. I, § le of the Missouri Constitution. Specifically, appe!-

lant argues the phrase “depravity of mind" is impermissibly vaque.

However, the language of the statute and its correlative instruction

are the same in all essentials to that of the seventh aggravating

circumstance of the Georgia death statute. Georgia Code Annotated

§ 27-2534.1(b) (7). The United States has on at least two occasions

@xamined the Georgia death penalty statute and its aggravating circum-

stance No. 7 and concluded the statute is facially valid. Gregg v.

Georgia, 428 U.S. 153 (1976); Godfrey v. Georgia, 446 U.S. 420

(1980). As noted above, one who attacks the constitutionality of a

statute bears a heavy burden which appellant has not carried. Appe!-

lant notes that during their deliberations the jury requested a def i-

nition of the phrase “depravity of mind” and this request was denied

by the court. He argues this demonstrates the facial invalidity. As

with any attempt to label « mental state (e. ., intent, deliberation,

reasonable doubt) there can be no precise objective definition for its

terms. So it is with the phrase “depravity of mind". While appellant

would quarrel with the lack of further definition of terms, such does

not prohibit the legislature from enacting criminal penalties qradusted

— ’

r „mg.. hot: . , RE eee, le

according to an offender's mental state. Hence, when the statute

employs such words of common speech, it is the responsibility of the

jury to determine if the offender acted in a manner denoting depravity

of mind. In addition to the previously mentioned safeguards providing

the process due found in the mandatory review provisions, § 565.014,

we must review whether the sentence of death is excessive or dis-

proportionate to the penalty ix osed in similar cases considering both

the crime and the appellant, which eliminates as nearly as possible

capricious imposition of the death penalty. We find § 565.012.2(7),

RSMo 1978, facially valid under the “Missouri Constitution.

Citing Godfrey v. Georgia, 446 U.S. 420 (1989), appellant next

contends the evidence was insufficient to support a conclusion that

his conduct in commiting “the murder of “Mansfield Dave involved

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

or wantonly horrible or inhuman.” Godfrey, however, rests on its

unique facts. There, it was conceded defendant had not tortured the

victims nor committed an aggravated battery upon them. Yet, the

death sentence rested on the jury's finding that Godfrey's actions had

been “outrageously or wantonly vile, horrible or inhuman in that

{they! involved ... depravity of ind.. The Court rejected such

conclusion as unconstitutional, noting several fects: Godfrey's

victims were family members who had caused him “extreme emotional

trauma"; that in an emotional state, he had killed them instantaneously;

shortly after the killing Godfrey acknowledged involvement and the

heinous nature of his crime and further, Godfrey had no criminal rec-

ord. On these facts Godfrey's actions were deemed not to reflect “a

consciousness materially more ‘depraved’ than that of any other person

guilty of murder.”

In the case sub judice the State established that Newlon's con-

duct was outrageously or wantonly vile, horrible and inhuman. WNewlon

planned the robbery making elaborate preparations for the scheme. He

enlisted the help of a willing accomplice, West and later a second

accomplice, Williams. He also provided a 16 gauge shotgun, and sawed

portions from the barrel and stock to facilitate its concealment and

provide an especially dangerous short range weapon. He test fired the

gun and selected for robbery a nearby convenience store where he knew

its operators. Before entering the store Williams, one of the con-

spirators, announced he would probably have to kill Mr. Dave as

Mr. Dave knew him. Hence, Newlon and Williams entered the store with

the very real probability of murder in mind. They waited until all

possible witnesses had left the store except the intended victim,

Mansfield Dave. When they entered, Franz Williams, serving as a decoy,

went to the soda case at the rear and Newlon approached Mr. Dave.

When Mansfield Dave's back was turned, Newlon drew and hand cocked the

gun, and when Mansfield Dave faced around, Newlon, without warning or

provocation, shot him in the torso with the sawed off shotgun.

Though the victim was knocked to the floor, Newlon cold-bloodedly

broke open the single action shotgun, extracted the spent shell,

inserted a fresh shell, closed the gun, reclosed and recocked the gun,

and leaning over the counter where the victim had fallen, shot “Mansfield

Dave again as he lay bleeding on the floor. Once more, Newlon opened

the gun and extracted the second shell, apparently to insert a third

shell, however, the alarm sounded, causing him to run from the store.

The second extraction indicated Mansfield Dave might have suffered a

third blast from the shotgun, but for the alarm, for why else would

Newlon have broken open the gun a second time and extracted the second

shell except in preparation for a third shot. This was a senseless

killing, a killing for killing’s sake. Appellant argues there was no

torture involved and thus 4 reversal of the death sentence is required

under Godfrey, supra. However, it should be pointed out that if mr.

Dave was dead after the initial shot, the second blast, deliberately

performed in the manner described, would have served to mutilate the

corpse, 4 macabre purpose demonstrating depravity. If, on the other

hand, Mansfield Dave was still alive, the second shot was to insure

the killing, and the first blast from this sawed off shotgun must have

inflicted extreme suffering. The record supports the finding of

Gepravity. See, Turner v. Commonwealth of Virginia, 273 8. . 2 36

(Va. 1980), cert. denied, 0. s. 101 &.Cth. 2347, 68 T. Ed. 20

663 (1981). There the murderer Willie Lloyd Turner entered a jewelry

store with intent to rob. He “displayed a sawed-off shotgun pre-

viously concealed ... and demanded money and jewelry.” Ig. at 39.

While the proprietor and an employee complied with the robbery demand

by placing money and jewelry in a bag, 4 silent alarm was sounded

alerting the police department. Two other parties entered the store

not knowing s robbery was in progress. They too were detained by

Turner. Discovering that Smith, the victim, had activated the alarm,

Turner demanded it be turned off and Smith complied. Learning that

one of the newcomers in the store, Alan Bain, was @ policeman, Turner

stated that if he saw or heard any additional police, he was going to

start killing those in the store. About that time, hearing a siren,

Turner, without warning, shot Smith in the head with a revolver taken

from Bain. Apparently angered or aggravated by the triggering of the

silent alarm and the arrival of the police, Turner leaned over the

counter and in rapid succession fired two more rounds into Smith's

chest. Turner, like appellant here, had a record of prior felony

convictions. The jury found his acts outrageously or wantonly vile,

horrible or inhuman and that the conduct resulted from the perpetra-

tor s depravity of mind, justifying imposition of the death voenalty.

The Supreme Court of Virginia affirmed. The facts in Turner are

strikingly similar to those before us. Indeed, the killing in Turner

was possibly more understandable because of the emotion or sense of

aggravation generated by the alarm and the siren heralding the arrival

of the police. The pertinent portions of the Virginia statutes are

similar in n ensentiote to ours and the decision in Turner provides

persuasive precedent here.

The contentions of legal error nave been denied for the reasons

heretofore enumerated in this opinion. The evidence from the record

substantiates the verdict. Section 565.014.7. In this capital murder

case, the second decided on appeal in which the death penalty has been

po os ae SS aes eee ee 3 4 . ae r

3 . 1 *

imposed under the current capital murder statute, we have under

6 363.01. 5 considered these similar cases in which both death and life

imprisonment were oubnitted to the jury, and which have been affirmed

on appeal: State v. “itchell, 611 S.W.24 223 (Mo. banc 1961); State

v. Williams, 611 S.W.2¢ 26 (Mo. banc 1981); State v. Royal, 610

8. u. 2d 946 (Mo. banc 1981); State v. Borden, 605 8. u. 24 88 (Mo. banc

1980); State v. Downs, 593 S.W.2d 535 (Mo. 1980); State v. Turner, 623

S.W.24 4 (Mo. banc 1961); and State v. Mercer, 618 &.W.24 1 (Mo. banc

1981), cert. denied, __—-U.S. __. «=the evidence of Newlon's acts

Gemonstrated a level of culpability and depraved quality supporting

the jury's verdict. The cases mentioned support the affirmance of the

Geath penalty in the case at bar. The sentence of death for the

murder of Mansfield Dave is neither excessive nor disproportionate to

the penalty imposed in similar cases considering the crime and the

appellant.

Judgment affirmed.

Donnelly, C. J., Welliver, “organ and

Higgins, JJ., concur; Seiler, J.

concurs in part and dissents in part

in separate opinion filed; Bardgett, J.,

concurs in separate opinion concurring

in and dissenting in part of

Seiler, J. :

Date of execution set for March 26, 1982.

Supreme Court of Missouri

en banc

Respondent, )

) FEB 9 1982

vs. ) No. 61798

) IN OFFICE OF

71 NEWLON, )

ee . CLERK SUPREME COURT

Appellant. )

OPINION CONCURRING IN PART AND DIGSENTING IN PART

I concur in result as to affirmance of the conviction for

capital murder, but respectfully dissent as to the affirmance of

the death penalty, for the reasons set forth below.

Defendant was found guilty by a jury of capital murder and

sentenced to death. When the death penalty is imposed, this court

has a three-fold duty: 1) we must veview the guilt or innocence stage

of the bifurcated trial for error; 2) we must review the sentencing

stage of the trial for error; and 3) we must review independently

the appropriateness of the death penalty for this particular defendant

and for this particular crime. In performing the first two duties,

this court acts as an appellate court, i.e., it reviews the record for

assignments of error. The third duty, however, is en affirmative one,

which is set out in § 565.014.3, RSMo 1978.) This third duty requires

us to examine the whole record to determine:

(1) Whether the sentence of death was imposed under

the influence of passion, prejudice, or other

arbitrary factor; end N ° n a

1. All statutory references are to RSMo 1978 unless indicated

otherwise.

’

(2) Whether the evidence supports the jury's or judge's

finding of a statutory aggravating circumstance as

enumerated in § 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.

This review is essential because, once the sentence is executed, there

is no opportunity to correct it. Because I conclude that the sentence

of death in this case is “excessive or disproportionate to the penalty

imposed in similar cases,” and that the sentence “was imposed under

the influence of" passion, prejudice and other arbitrary factors, either

of which is sufficient to require reversal of the death penalty, I would

affirm the conviction for capital murder and reverse and remand the

cause for resentencing. Section 565.014.5(2).

The United States Supreme Court in Furman v. Georgia, 408 U. 8.

238 (1972), found the challenged death penalty statutes violated the

eighth amendment's guarantee against cruel and unusual punishment

because the statutes were applied in a discriminatory and arbitrary

manner. Id. at 249 (Douglas, J., concurring). Justice Stewart in

Furman stated that “(t)hese death sentences are cruel and unusual in

the same way that being struck by lightning is cruel and unusual.

For, of all the people convicted of [capital crimes], many just as

reprehensible as these, the petitioners are among a capriciously

selected random handful upon whom the sentence of death has in fact

been imposed.” Id. at 309-10 (Stewart, J., concurring). In response

to Furman, Missouri, along with many other jurisdictions, adopted

new legislation to insure that the jury would be given proper direc-

tion so that the death penalty would not be imposed in an arbitrary

and capricious manner. State v. Royal, 610 S.W.2d 946, 950 (Mo. banc

1981). Under our statutes, a defendant charged with capital murder

is tried in a bifurcated trial. Section 565.006.1, RSMo Supp. 1981.

The first stage involves determination of guilt; the second stage

involves determination of punishment. To impose death as the punish-

ment, the trier of fact must find beyond a reasonable doubt one of

twelve statutory aggravating circumstances. Section 565.012.2, RSMo

1978 and Supp. 1981 (the 1978 version, applicable to this case, lists

only ten aggravating circumstances).

The jury found defendant Newlon guilty of the capital murder of

Mansfield Dave. It is true that the jury could have found the facts

as set forth on page 3 of the principal opinion as to defendant and

Franz Williams entering the store together, with defendant wielding the

shotgun and doing the shooting, but it is incorrect to leave the impres-

sion that the verdict of guilty means that the jury found the facts as

above. On the contrary, as will be developed below, the jury could

have found that the defendant, instead of being the principal, was an

accomplice of Franz Williams, and that Williams did the shooting, while

defendant was at the back of the store getting a soda to divert the

victim's attention. Because the verdict directing instruction required

only that the jury find either “the defendant or another” killed Mr.

Dave, there is no way to determine which of the two versions the jury

found as the fact. Indeed, the principal opinion points out that in-

struction no. 9 submitted appellant's guilt of capital murder “as an

accessory” and that the instruction requires either that 1) defendant

did the killing, or 2) aided one who did.”

2. Instruction no. 9 was as follows:

If you find and believe from the evidence beyond a

reasonable doubt:

First, that on or about April 24, 1978, in the County

of St. Louis, State of Missouri, the defendant or another

caused the death of Mansfield Dave by shooting him, and

Second, that the defendant or another intended to

take the life of Me .sfield Dave, and

Third, that the defendant or another knew that

they were practically certain to cause the death of

Mansfield Dave, and

Fourth, that the defendant or another considered

taking the life of Mansfield Dave and reflected upon this

matter coolly and fully before doing so, and

Pifth, that the defendant acted either alone or know-

ingly and with common purpose together with another in

(Continued)

To return to the facts: The prosecutor was faced with a problem,

because his only eyewitness supporting the theory that defendant fired

the shots was Walter West and there were formidable credibility problems

with the jury as to West. West, who had five prior convictions accord-

ing to the prosecutor, was also in on the plot to rob and kill Mr. Dave’

and served as lookout and driver of the getaway car. We made a 4eal

with the state whereby he was permitted to plead guilty to second degree

murder and received a sentence of only ten years, which was to oe

served outside the state.”

West testified he was in an automobile, parked across the street,

some forty five yards from the store front (actual measurement 157 feet).

It was dark, 10:30 p.m., and the store level was five feet below the

parking lot level, down two short flights of steps. The photographs

which were put in evidence by the state, Exhibits 1, 2, 3 and 14, pur-

porting to show the general area and the location of the store, would

raise 4 yuestion by any viewer as to whether West was in a position to

see all that he testified to, although, of course, this was a question

for the jury. The prosecutor many times in his jury argument sought

to bolster West's credibility. We insisted that the physical evidence

did not disprove West's testimony and he undertook to explain away the

discrepancies between West's deposition and his trial testimony. He

repeatedly urged the jury not to disregard West's testimony.

Defense counsel, as would be expocted, strongly attacked West's

credibility and argued the physical facts belied West's testimony as

to what he claimed to sce from across the street.

2. (Continued)

the conduct referred to in the above paragraphs, then you

will find the defendant guilty of capital murder.

However, if you do not find and believe from the

evidence beyond a reasonable doubt cech and all of these

positions, you aust find the defendant not guilty of

that offense.

3. The prosecutor in a argument said, “Walter West got a deal -

and quite frankly something I apologize to you for. It's one of the

regrets I have. Valter West far too good of a deal, and it's

unfortunate that he'll get off with ten years.

The principal opinion devotes an entire page to the attacks made

on West's credibility.

However, the prosecutor wanted to be sure that the jury knew that

they could convict defendant of capital murder even if they did not

believe the witness West and did not believe that Newlon personally

killed Mr. Dave. To that end, the state introduced defendant's video-

taped confession. In this statement, defendant admitted that he

helped saw off the shotgun; that he knew Franz Williams intended to

get money from the man; that Williams said he (Williams) might have

„to shoot him because he knows me"; that defendant was sent to the

back of the store to get a soda to divert Mr. ive's attention; that

defendant was at the back of the store when he heara the two shots;

that Franz Williams had the shotgun, which he concealed under his coat

when they got out of the car; and that Williams was the triggerman.*

Under this statement, of course, defendant would be guilty of capital

murder as an accomplice, which the prosecutor recognized, submitted to

the jury in the main instruction, and argued.

In his argument tc the jury in the guilt phase of the case, the

prosecutor on at least seven occasions stressed the voluntary character

of defendant's confession and emphasized that, even if West were not to

be believed, the defendant by his own statement was still guilty of

capital murder as an accomplice of Williams. For example: “I hope

you're not going to disregard his confession... Rayfield was in-

volved up to his neck." “(Hje didn't know when he gave that videotape

statement, that he said more than enough to convict him and convict

himself of capital murder.” either Franz Williams killed him and

Rayfield was in the back of the store - which he said in the video-

tape, or Rayfield Newlon did the killing and Franz Williams was in

the back of the store? Which is what?" “If you don't believe Walter

West, we still have the videotape confession, wherein the man admits

to two good police officers after he voluntarily surrenders .. . and

he thought he had just admitted to a robbery, but not a murder.” And

4. Franz Williams was not called as a witness by either side and did

not testify in the Newlon trial.

finally, just before bringing his final argument to a close, “but even

if you disregard everything Walter said . . . but regardless you got

the videotape confession where he admits he was involved in the rob-

bery and all through this confession he remarks that he knew a robbery

was going to occur and involving a sawed-off shotgun, and that shotgun

was pulled out before they went in the store and Franz said he might

have to kill him."

As said earlier, the instruction on capital murder was in the

disjunctive. It required only the jury find either “the defendant or

another killed Mr. Dave. To reach its verdict, the jury could have

found that either Franz Williams or Rayfield Newlon shot and killed

Mansfield Dave with two blasts of a shotgun during the course ofa

robbery. The jury could have found that the accomplices realized be-

fore entering the Conveniency House that they might need to kill Dave

to prevent identification and thus had the requisite mental state.

The jury could have believed defendant's videotaped statement, 4 copy .

of which they requested and received during deliberations, and dis-

believed Walter West's testimony and still found defendant guilty under

the instructions and principles of accomplice liability.”

From the ver-

dict it is impossible to determine whether the jury believed defendant

to be guilty as 4 principal or 48 an accomplice. It therefore cannot

be assumed, as the principal opinion does, that defendant was the trig-

german. This is important because it bears directly on the question of

whether the death sentence is disproportionate compared to similar cases

considering both the defendant and the crime. The principal opinion

does not attempt to justify the death penalty for defendant if he were

guilty of capital murder as an accomplice.

111

Neither the state nor the defendant presented further evidence in

the punishment stage of the trial, but both counsel argued to the jury.

5. The prosecutor, after the jury had returned a verdict of guilty of

capital murder, in his punishment stage argument stated, returning

your verdict in this case. . that either means that you believe teyond

@ reasonable doubt that he pulled the trigger, or that he had the frame

of mind t*at's consistent with pulling the trigger

wt’

The state argued and submitted two aggravating circumstances to the

jury: 1) “Whether the defendant murdered Mansfield Dave for the purpose

of receiving money or any other thing of monetary value"; and 2) “Whether

the murder of Mansfield Dave involved depravity of mind and that as a

result thereof it was outrageously or wantonly horrible or inhuman.”

The jury, in sentencing the defendant to death, found only the iatter

aggravating circumstance - “the murder of Mansfield Dave involved de-

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

wantonly horrible or inhuman." During its deliberations, the jury re-

quested a definition of “depravity of mind.“ This request was denied.

Section 565.012.2(7) allows the jury to impose the death penalty

if it finds that “([t)he offense was outrageously or wantonly vile,

horrible or inhuman in that it involved torture, or depravity of mind.”

This aggravating circumstance requires a subjective, rather than an

objective, finding by the jury. Theoretically, a jury could find that

every intentional, deliberated murder involves “depravity of mind.”

An aggravating circumstance similar to § 565.012.2(7) is found

in the death penalty statutes of several states. The Georgia version,

which authorizes 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'",

Ga. Code Ann. § 27-2334. 1500 (7) (1978), was challenged in Gregg v.

Georgia, 428 U.S. 153 (1976) as being so broad that it would authorize

imposition of the death penalty in every murder case. Id. at 201. In

response, the United States Supreme Court stated that Alt is, of

course, arguable that any murder involves depravity of mind or an ag-

gravated battery. But this language need not be construed in this way,

and there is no reason to assume that the Supreme Court of Georgia wil!

adopt such an open-ended construction." Id. Gregg was followed by

Godfrey v. Georgia, 446 U.S. 420 (1980) where the petitioner's death

sentence based on § 27-2534. 100 (7) was reversed because “[t]here is no

principled way to distinguish this case, in which the death penalty wis

rc ˙ A r n 1

— ———

imposed, from the many cases in which it was not.” Godfrey v. Georgia’

446 U.S. at 433. ‘The Georgia court, construing § 27-2534.1(b) (7) so

that it would not become a “catch-all”, stated that:

Under the plain meaning of the statute, not only

must the murder be outrageously or wantonly vile,

horrible or inhuman, but in addition, th: facts of the

case must show either an avated battery to the

victim, torture of the victim, or depravity of mind

of the defendant as hereinafter explained.

Hance v. State, 245 Ga. 856, 268 S.B.24 339, 345, cert. denied, 449

U.S. 1067 (1980). Both the principal opinion and State v. Mercer, 618

6. M. 2d 1, 5 (Mo. banc 1981) emphasize that our death penalty statute is

patterned after the Georgia statute.

This court, too, must construe this aggravating circumstance in

such a way that the death penalty is not authorized for every inten-

tional murder. It must insure that there is a principled way to dis-

tinguish between cases where the death penalty is or is not imposed.

To make its proportionality review as required by statute, § 565.014.3

(3), this court must look at “the penalty imposed in similar cases,

considering both the crime and the defendant.” (Emphasis added.) This

court showld look t sentencing patterns in similer cases. See Biake

v. Zant, 513 F.Supp. 772 (S.D. Ga. 1981).

fo begin, we cannot be sure whether defendant or Franz Williams

actually did the shooting. There is no way to tell under the evidence,

the instructions, and the verdict. Certainly if defendant were only

the accomplice and not the triggerman, there is not a single Missouri

capital murder case (and the principal opinion makes no effort to cite

one) whic can be said to be similar where the death penalty was asses~

‘sed again-t the accomplice or which would justify our upholding the

death penalty here. The alternative that defendant was found guilty

of capital murder as an accomplice is not considered or discussed in

part Vi of the principal opinion, the proportionality review. The sole

basis on which the principal opinion affirms the death penalty is on

the premise that Newlon actually killed the victim. I am certain if

defendant were only the accomplice, the justification of the principal

opinion for upholding the death penalty, slip op. at 24, based as it

is on a recital of events supposed to have been performed by defendant

as the triggerman, must fail.

I do not mean to say, or to be interpreted as saying, that an

accomplice in a capital murder could never justifiably receive a death

sentence. In the case before us, however, the justification for the

Geath sentence is found by the principal opinion in the acts committed

solely by the person who did the shooting: the firing of the first

shotgun blast without warning or provocation and then reloading, lean-

ing over the counter and firing the second blast while the victim lay

bleeding on the floor, followed by starting to load the gun again.

While this was going on, the accomplice, who was either defendant or

Williams, was at the rear of the store, getting a bottle of soda pop.

There is no evidence that the accomplice had any hand in the way the

actual killing was done, that it was planned between them to be done

that way, or that the accomplice should have become aware that the

principal was going to do it that way. As the principal opinion says,

it was not necessary to do what was done in order to accomplish the

robbery. It is the way the killing itself was done which is the justi-

fication found by the principal opinion for the death sentence. Under

the facts and circumstances before us, the manner of killing cannot

fairly be imputed to the accomplice as a basis for sentencing him to

death also.

We also point out that the aggravating circumstance submitted

by instruction 19 and found by the jury does not require that

the jury make any determination as to whether defendant was the

triggerman or the accomplice. The question posed to the jury by

instruction 19 was “Whether the murder of Mansfield Dave involved

abd

Gepravity of mind and that as 4 result thereof it was outrageously

or wantonly horrible or inhuman". This inquiry focuses on the act

of murder itself, not on who was the murderer. The jury could

believe the murder involved depravity of mind and was outrageously

or wantonly horrible or inhuman without being required to determine

whether it was defendant's “depravity of mind.“ The portion of the

verdict specifying the aggravating circumstance found reads as

follows:

(Whe designate the following aggravating

circumstance or circumstances which we find beyond

@ reasonable doubt:

Whether the murder of Mansfield Dave involved

depravity of mind and that as a result thereof it

was outrageously or wantonly horrible or inhuman.

This verdict does not resolve the question of whether defendant or

Franz Williams committed the acts upon which the principal opinion

rests its justification of the death penalty.

However, even if we assume, as does the principal opinion, that

Gefendant fired the shots (something which we cannot assume under the

instructions and verdict), the death penalty is disproportionate to

the penalty imposed in similar or worse cases.

The prosecutor and the principal opinion characterize this murder

as an “execution-type” killing. However, it is the facts of the respec-

tive homicides which we must examine, not the catch phrase applied to

them, because under our statute we are to examine proportionality of

the sentence impored to that imposed in similar cases. How do the

facts of the killing of Mr. Dave and the punishment assessed age.nst

this defendant compare with the facts and punishment assessed in other

cases where the defendant was convicted of capital murder?

The principal opinion cites cases it has compared with the instant

case in determining thet the death sentence is not disproportionate

when applied to defendant Newlon for this particular crime compared to

the penalty imposed in similar cases. In other words, it has made an

attempt to distinguish cases on the assumption that defendant did the

actual killing. State v. Mitchel], 611 S.W.2d 223 (Mo. banc 1981),

is the first case cited. In Mitchell, the defendant was found guilty

of two counts of capital murder committed during the course of a robbery

of a liquor store. Both victims had been stabbed, one six to eight

times and the other approximately twelve times. Both victims also had

severe blows to the head. The jury was instructed on four aggravating

circumstances, including “the offense was outrageously or wantonly vile,

horrible or inhuman in that it involved torture or depravity of mind.”

Because the jury was unable to agree on punishment, the defendant was

sentenced to life imprisonment without chance of probation or parole

for fifty years. Section 565.008.1.

A second case cited is State v. Royal, 610 S.W.24 946 (Mo. banc

1981). In Royal, the defendant during the robbery of a bank abducted

an employee, took her to 4 remote area in the county, and killed her.

The victim had been shot three times with 4a .22 caliber gun. The jury,

after being instructed on three aggravating circumstances, including

$ 565.012.2(7), recommended a ite sentence.

A third case cited is State v. Downs, 593 S.W.2d 535 (Mo. 1981).

In Downs, the defendant was convicted of three counts of capital murder.

Downs and two co-defendants entered a store to rob it. The husband and

wife, owners of the store, were shot in the head. Their daughter, re-

turning home from school, was pulled into ihe building and suot despite

her pleas for mercy. The jury, instructed on three aggravating circum-

stances, including § 565.012.2(7), recommended a life sentence. Downs

was identified as the triggerman by one of his accomplices.

I cannot find a principled means to distinguish between the three

cases cited which ere similar factually and the instant case which

would justify sentencing Rayfield Newlon to death, yet justify sen-

tencing defendants Mitchell, Royal, and Downs to life imprisonment. In

fact, looked at objectively, the murders in the cited cases were more

“vile” and the murderers exhibited a greater “depravity of mind.” In

Mitchell, there were two victims, both kiiled by multiple blows and

stab wounds. In Royal, the victim was kidnapped and driven to 4 remote

rural area, a ride which must have become increasingly terrifying and

ominous, prior to being shot three times. In Downs, there were three

victims. In the instant case, there was one victim, killed by two shot-

gun blasts. In addition, there is no way to know whether Newlon was tne

triggerman or whether he was an accomplice.

A fourth case cited is State v. Williams, 611 &.W.2¢ 26 (Mo. banc

1961). In Williams, the defendant, after repeated efforts had success-

fwlly solicited an acquaintance to kill her husband. The jury recom-

mended life imprisonment. The only similarities to Newlon are that some-

one was killed, the defendant was convicted of capital murder, and the

death penalty «2s sought, unless, of course Newlon was an accomplice.

If so, I cannot see how the depravity of mind of Mrs. Williams as an

accomplice in arranging for the paid murder of her husband was any iess

reprehensibile than Newlon's as the accomplice of Franz Williams, yet

she received only life imprisonment.

The fifth case cited is State v. Mercer, 618 &.W.2d 1 (Mo. banc

1961). In Mercer, the defendant was convicted of capital murder. The

victim was sexually abused by the defendant and others for an extended

period of time and then strangled. Witness Campbell testified that he

"found defendant straddling Karen's ody with his hands on her throat.

Defendant screamed at Campbell co 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

ad, 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, grabbed Karen's legs, and pulled her off the bed.

Defendant took the sheets and blankets to the washing machine and told

Campbell to wipe the waste off the floor.” Id. at 4. The jury, instruc-

ted on two aggravating circumstances, including § 565.012.2(7), returned

the death penalty, which this court affirmed. The shooting of victim

Dave by means of two shotgun shelis during the course of an attempted

robbery does not begin to equal the moral depravity exhibited by the

defendant in Mercer, shown by the atrocities inflicted on his victim

and set out above.

fo achieve true proportionality review, we need to examine capite)

murder cases other than the few mentioned in the principal opinion and

discussed above. Cf. Ross v. State, 233 Ga. 361, 211 &.E.24 356, 359

(1974), cert. denied, 429 U.S. 673 (1976) (as earlier pointed out, our

death penalty statute is patterned after Georgia's and has the same

provisions as to independent review of the death penalty, including

determination of proportionality of the death sentence) where the court

stated “that nothing in the statute forecloses this court during the

course of its independent review from examining non-appealed cases and

cases in which the defendant pleaded guilty to 4 lesser offense.” Even

if we go no further in Missouri than to examine only cases we have heard

on appeal and affirmed, we should include such cases as State

Bostic, No. 62764 (December 8, 1981); State v. Baskerville, 616 8. s. 2d

839 (Mo. 1981); State v. Holmes, 609 8. u. 2d 132 (Mo. banc 1981); State

vy. Strickland, 609 S.W.2d 392 (Mo. banc 1980); State v. Ingram, 607

8. u. 24 438 (Mo. 1980); State v. Hudgins, 612 S.W.2d 769 (Mo. 1981);

State v. White, 621 S.W.2d 287 (Mo. 1981); State v. Jensen, 621 8. U. 20

263 (Mo. 1981); State v. Chandler, 605 8. w. 2d 100 (Mo. banc 1980); and

State v. Borden, 605 S.W.2d 88 (Mo. banc 1980). Otherwise, as set

forth in Godfrey v. Georgia, supra, as the law is built up in this

area, there is no way to distinguish a capital murder case in which

the death penalty is imposed from the many cases in which it was not.

We must establish standards for imposition of the death penalty to

“serve both goals of measured, consistent application and fairness to

the accused.” Eddings v. Oklahoma, U. 8.8. C. No. 80-5727, slip op. at

7 (Jan. 19, 1982).

In Bostic, defendant (ruck the victim on the head twice, then

he and his son dragged her down the alley and loaded her in a van.

The defendant stepped on the victim's throat when she regained con-

sciousness. At some time defendant had sexual intercourse with the

victim. The body was left in a ditch outside of town. The jury, in-

structed on the depravity of mind aggravating circumstance, recom-

mended a life sentence.

In Baskerville, the defendant was convicted of three counts of

capital murder. One victim was shot twice, one was shot once, and «4

third, a iid fe, was shot once. The jury im-

posed the life penalty without possibility of parole for fifty years

for the capital murders of the two adults and, because the jury was

unable to agree upon punishment for the capital murder of the child,

the court assessed a life sentence, without possibility of parole for

fifty years.

In Holmes, defendant stabbed his sixteen year old victim at least

sixty-four times with an ice pick like instrument, an example of extreme

torture and cruel death. It is hard to imagine a worse death for a

teenager. Defendant had twice announced his intention to kill the

victim, even saying that he was going to do it by stabbing the victim

with an ice pick some sixty odd times. Because the state had waived

the death penalty, Holmes was sentenced to life imprisonment.

In Strickland, defendant was convicted of one count of capital

murder and two counts of second degree murder. The victims were tied

and then shot with a pistol and a shotgun. Three were killed and one

wounded. The defendant and two or three others had intruded upon a

party and also ransacked the house. The state waived the death penalty

after the guilty verdict. us

In Ingram, defendant shot and killed a casual acquaintance as he,

the victim and their two consorts were driving around Bull Shoals Lake.

All had been drinking beer. An argument ensued between defendant. and

the victim, who was driving. Defendant said he would use the shotgun

on the victim if the latter did not stop the car and let him out. The

victim in effect said to go ahead, “if you've got the guts", whereupon

hot t im i with .

The state waived the death penalty.

In Hudgins, defendant's landlord died from loss of blood after he

stabbed her twenty-one times a8 well as strangling her. Some of the

wounds were seven inches deep. Defendant then strangled her six year

1d son with an extension cord and placed the body in a bathtub filled

with weter. He was found guilty by 4 jury of capital murder, but

sentenced only to life imprisonment without perole for fifty years. He

was also convicted of second degree murder.

In White, defendant agreed to commit murder for hire. He made

an unsuccessful attempt wherein he shot the victim and best her with ~—

@ lead pipe. After the victim recuperated, defendant entered her home,

bound and sexually ravished her and then killed her by cutting her throat

from ear to ear and the back of her neck, nearly severing her head from

her body. Defendant was convicted of capital murder and the jury assessed

life imprisonment without parole for fifty years.

In Jensen, defendant robbed the safe in the restaurant where he

worked. He then proceeded to ransack the premises to make it appear «4

burglary had occurred but was surprised by the arrival of the manager.

ran vailing at t di

U t sho r. He was convicted of capital

murder and the jury assessed punishment at life without possibility of

parole for fifty years.

In Chandler, defendant was convicted of capital murder. The jury

assessed life imprisonment without parole for fifty years. The facts

were that he and two others went to the law office of the victim at

night. Defendant held 4 gun on the victim and took his money. Then,

rather than shooting the victim and possibly attracting the attention

of outsiders, first st i i s ch (to get

Gefendant's hancs away from protecting his throat) and then while the

let man im f nt deli-

vi *‘s throat.

In Borden, defendant wife, after failing over a period of several

months to induce the man with whom she was having an affair to do the

ted her husband shooting him with a ~off .22 caliber

le was wa i elevision. Their two children were also

present in the house. Defendant had her paramour strike her and tie

up the children in an attempt to divert suspicion. Defendant was

convicted of capital murder and the jury fixed the punishment at life

imprisonment without possibility of parole for fifty years.

The capital murders in the ten cases just described constitute a

veritable “chamber of horrors". The instant case falls far short of

these capital murders (many of which involved multiple victims) in

terms of torture, duration of the victim's suffering, nature of the

wounds, agony, or infliction of pain and suffering. Yet in not one

was the death penalty assessed. Where is the proportionality or the

consistency or the principled manner by which we can declare that the

sentence of death in the case before us is not excessive or dispro-

portionate when compared to the penalty imposed in the above cases,

all of which involved depravity and conduct outrageously or wantonly

horrible or inhuman? How do we distinguish in a principled way this

case, where the death penaity is based on the aggravated circumstance

that the murder “involved depravity of mind and that as a result there-

of it was outrageously or wantonly horrible or inhuman’, from those

above? Is the Mitchell case, or Royal, or Downs, or Williams, or Bostic,

or Baskerville, or Holmes or Strickland or Ingram or Hudgins or White

or Jensen or Chandler or Borden any less depraved or less outrageously or

wantonly horrible or inhuman than the present case? That question can-

mot be answered affirmatively, in my opinion.

As the Supreme Court of the state, we are obliged by law to

„

examine the sentence of death to make sure that it is not excessive

or disproportionate to the penalty imposed in similar cases. This

the jury is not required or able to do. If Newlon's death sentence

is affirmed, he is being marked for death capriciously, one randomly

selected from a group of capital murderers whose crimes are of equal

or greater depravity than his. We will thereby permit the jury ver-

dict to accomplish what our death penalty review is supposed to avoid -

application of the death penalty in an arbitrary and capricious manner -

contrary to the mandate of our statute and the decisions of the United

States Supreme Court. The Supreme Court in Eddings v. Oklahoma, supra, re-

affirmed this mandate, stating that the decisions of the Court reflect

“the Court's insistence that capital punishment be imposed fairly, and

with reasonable consistency or not at all.* Slip op. at 8.

The court in State v. Culberth, 390 80. 2d 847 (La. 1980) reversed

the defendant's death sentence and remanded for resentencing. Defen-

Gant was found guilty of killing a young woman. The state asserted

that “the infliction of five stab wounds on the helpless victim con-

stituted an especially heinous, atrocious or cruel manner of killing.”

Id. at 850. The court, in holding that the evidence did not support

submission of this circumstance, stated:

Obviously, it was not intended that 911 murders fall

in this category, even though it can be said that

murder, itself, is a heinous, atrocious and cruel

crime. We have stated that the concept of heinousness

must necessarily include “some idea of torture or the

pitiless infliction of unnecessary pain on the victim."

State Vv. English, (367 s. zl at 823. Such a construc-

tion is necessary to protect the statute from attack on

grounds of vagueness and overbreadth and to provide

adequate guidelines for those involved in the sentenc-

ing process. Proffitt v. Florida, 428 U.S. 242, 96

S.Ct. 2960, (9 L.Ed. 24 913 (1976). In this case the

defendant did not torture or abuse the victim de fore

her death. The wounds were inflicted to kill, not

to maim or to inflict pain.

Id. at 851.

Whether we conclude the evidence does not Support imposition of

the death penalty or that the sentence is disproportionate for the

crime, the death penalty cannot be imposed. As in Culberth, this was

@ killing wath intent to kill, not with intent to maim or wound. This

72.

„

is recognized by the prosecutor in closing argument when he argued that

Newlon shot Mr. Dave a second time “to make sure nobody would live to

identify him in the Courtroom." The principal opinion speculates the

second shot fired was to mutilate the corpse, but there is no evidence

to support this, nor was any such theory advanced by the prosecutor to

the jury. If the killer were truly motivated by a desire to mutilate,

he would have fired the second shot into the deceased's head and face,

not his shoulder.

"The instantaneous death of a victim as a result of being killed

by a gunshot, although the scene of death be gruesome (no other facts

appearing), does not constitute torture, aggravated battery or depravity

of mind.“ Hance v. State, supra, 268 8. E. 2d at 346. In this case,

there were “no other facts appearing”, other than the characterization

by the prosecutor and principal opinion that this was an “execution-

style killing.“ The sawed-off shotgun was, most definitely, a lethal

weapon, but it is @ weapon used to kil], not to torture. Its use

results in a bloody, gruesome scene as shown by the photographs entered

into evidence by the state (Exhibits 7, 8, and 9). This does not,

however, reflect “depravity of mind” any more than the use of any other

weapon. The principal opinion would supply “other facts” by pointing

out that this was a single action shotgun and thus required reloading.

The gun is a simple self-ejecting weapon, easy to load, and would re-

quire, at the most, a few seconds to fire and reload.

The principal opinion relies on Turner v. Commonwealth, 221 Va.

513, 273 S.E.2d 36 (1980) to support its position that the death penalty

is appropriate in this case. In Turner, the jury found both statutory

*{clonditions for imposition of death sentence": 1) “there is a prob-

ability that the defendant would commit criminal acts of violence that

would constitute a continuing serious threat to society” or 2) “that

his conduct in committing the offense for which he stands charged was

outrageously or wantonly vile, horrible or inhuman in that it involved

torture, depravity of mind or an aggravated battery to the victim.”

Va. Code § 192-264.2 (Supp. 1981). I am unable to agree with the

principal opinion that the facts in Turner are “strikingly similar

to these before us.” Turner, during the course of a robbery, held

four people hostage, (including a police officer) in the store for a

short period of time. He shot the owner in the head, wounding him

but not fatally, and then talked to one of the hostages. Two of *he

hostages escaped after which Turner told the officer that he was going

to kill the owner because he had set off an alarm. Turner then fired

two shots at the owner which were fatal. Additionally, Turner had a

history of violent crime.*

He had been convicted of malicious maiming,

escape, unlawful wounding, malicious wounding, and second degree murder.

Id. at 44, . 11. The defendant argued that the evidence did not sup-

port the “vileness” condition. In response, the court stated that the

initial wound to the head, which was not the cause of death, was an

aggravated battery. But, it added, that lelven if Turner's crime did

not meet the ‘vileness’ standard, imposition of the death penalty would

be permissible under the ‘dangerousness' standard.” Id. at 45. The

court pointed out that defendant's criminal record “is one of the most

extensive we have reviewed" under this provision of the statute. Id.

at 47. This case is clearly distinguishable: 1) the jury found two

statutory aggravating circumstances; 2) the defendant in Turner had a

history of violent crime which Newlon did not; and 3) the opinion relies

mainly on the “dangerousness” aggravating circumstance, which is not

the aggravating circumstance relied upon here.

In addition, I would reverse the death sentence and remand for

resentencing because the sentence of death was imposed under the influence

of passion, prejudice, and other arbitrary factors, § $65.014.3(1), gen-

erated in the minds of the jurors by the improper and provocative words

of the prosecutor. I must conclude that the prosecutor overstepped 11

bounds of permissible argument by injecting appeals to the passions

6. Wewlon did not. His prior crimes were burglary, stealing and

larceny.

. **

and prejudices of the jurors and appeals for return of the death

sentence for reasons foreign to the clear mandate of our death penalty

statute that death can properly be assessed only if there is a suf-

ficient aggravating circumstance or circumstances and for no other

reason. Section 565.012. In so doing, the prosecutor violated the

ABA Standards for Criminal Justice, Standards 3-5.8(c) and (d] which

state:

to inflame the passions or prejudices of the jury.

(4) The prosecutor

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.