Petition — Bolder v. Missouri

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TABLE OF CONTENTS

Table Of COntEMNtS..cccccccvcccccccccscscesesecsessess 4

Questions Presented for Review.....ccececesecseece Ai

Table of AuthoritieS..-cccsccccccccecsccecccccvscese Add

Petition for Writ of Certiorari.c.ccccesescosessecss

The Opinion BelOWeccccscecenecccccevecsceceeese &

JSUFASGICCIONARSL STACGMONE sc cccecscvccecescvevsecess Bb

N

Constitutional Statutory Provisions....ecssec-e

Statement. oF Che CASO « . sso ee enw tease ewendeueee! a

Unconstitutionality RaelSed.ccccesvacdecossvese #

Reasons for Granting Writ..cccccccces steneeed #

APrGumMe;nt ccccsces “< kh E RG eS eeeeveee eeeesesn eeseee 9

COMCAUSION.cccccceccsocvcceces ebeeescececsoses ]

Appendix

Ay pinion and Qrder of the Supreme

Cc rt f the tate of Missouri,

reportea at ¢€ SeMe 2G STSecavece ° ° - 18

B Apps ant Motion for Rehearinc

an rcer aenying Appella S Motion

for Rehearing. ..eces eweveseesese eoeecece 39

QUESTIONS PRESENTED FOR REVIEW

Le Whether the judgment of death where the jury

went beyond the statutorily authorized acgravating

circumstance is unconstitutional under the due process

and equal protection clauses of Amendments Five and

Fourteen and the cruel anc unusual punishment clause of

Amendment Eight, where demonstrably the sentencing jury

went beyend the controls of the Court's instructions and

the law and created its own aggravating circumstancs

whether the judgment of death violates the due

process and equal protection clauses of Amendments Five

anc Fourteen and the cruel and unusual punishment clause

of Amendment Eight: a) where the death penalty i:

imposed based solely upon the defendant's status as a

person lawfully confined, anc (b) whether the penalty

imposed is unconstitutionally excessive ana

cCisproportionate for this defendant when compared tx

punishments imposed under the same statute in other

ii

TABLE OF AUTHORITIES

Beck v. Alabama, 477 U.S. 625 (1980)... .cecssees

Eddings v. Oklahoma, No. 80-5727,

BO Cr. Le Med (CIGBZ) cc ee ee aver eeveserecens

Furman v. Georgia, 408 U.S. 238 (1972)...

Gardner v. Florida, 430 U.S. 625 (1980)...cecees

.

.

.

.

.

.

Godfrey v. Georgia, 446 U.S. 420 (1980).....cee0-

3

Gregg v. Georgia, 428 U.S. 153 (1976)...seeseeeees

10, 12, 415

Jurek v. TexaS, 428 U.S. 262 (1976)... eeeeeeees .

Lockett v. Ohio, 438 U.S. 568 (1978)...... oeeeeee

Proffitt v. Florida, 428 U.S. 242 (1976).......

Shapiro v. Thompson, 394 U.S. 618 (1969).......66..

State v. Shaw, 636 S.W.2d 667 (Mo. banc 1982)

’

cert. agen. 5] U.S.L.W. 3288 (Oct. 12, 1982)

State v. Trimble, N 62523 Mc banc Aug OF

982 ewee@eeeeseee#eee@eseeeeeeeeeeeenseeee#ees “een eeeeee eee

Woodson v Nort} Car iina, 4248 U.S 25 (] ©}

iii

12

{RECEIVED |

NOV1 82

. Orruce vr THe ULERK

IN THE SUPREME f Tal haba "e

SUPREME COURT OF THE UNITED STATES

fARTSAY BOLDER,

Petitioner,

No. A-267

vs.

STATE OF MISSOURI,

ed

Respondent.

PETITION FOR WRIT OF C

SUPREMe COURT OF TE STA’

IORARI TC Ti

E OF MISSOURI

i

.

TO: TEE HONORABLE, THE CHIEF JUSTICE ana

ASSOCIATE JUSTICES OF THE SUPSEME COURT ‘

OF THE UNITED STATES

Martsay Bolder, the Petitioner herein, pravs 4

Writ of Certiorari issve to review the judgment of the

Supreme Court of the State of Missouri, entereac in the

above entitled cause on July 6, 1982. Petitioner's

Motion for Rehearing was denied on Ausust 2 1982.

‘

CPINIONS BELOW

The opinion of the Supreme Court of the State cf

The judgment of the Supreme Court of the State of

Missouri affirming Petitioner's conviction of Capita!

Murder and affirming and assessing his penalty at deat!

was entered July 6, 1982. Petitioner duly filed his

Motion for Rehearing which was Gaeniec by the Supreme

Court on August 2, 19862 (Appendix B). The

jurisdiction of this Court is invoked under 26 U.S.C.

1257(3).

CONSTITUTIONAL PROVISICNS AND STATUTES INVOLVED

The constitutional provisions involved are the

Fifth, Eighth, and Fourteenth Amendments to the

Constitution of the United States. The statutes

involved are 565.012.2(1-10), and 565.014.3, of the

Revised Statutes of Missouri, 1978.

Petitioner, a 21 year old black male at the time ot

the offense, was tried and convicted of capital muroaer

and sentenced to death under Section 565.001, RSM

(1978) after a two-day trial which commenced on May

1°80.

The murder occurred in the Miss iri State

Penitentiary im Jefferson City, Missouri, a#here Bolder

and the deceased, Theron King, were both inmates. The

alleged attack occurred on March 14, 1979, anc the

decedent died on April 28 1979 forty-five 4 lay:

after the attack

Tne decedent s black male, had been a ceé ate

defendant Bolder Guring their incarceration. The

petitioner and decedent hac a lengthy history of

animosity which allegedly involved informa na

death of petitioner's brother and name-calling by

decedent King regarding petitioner's alleged homosexual

activities.

Bolder was serving a life sentence in the Missouri

State Penitentiary for first-degree murder.

The state's evidence was that on March 14, 1979, at

approximately 3:15 p.m., vocationa) teacher Kenneth

Giboney and Arthur Luecke entered the prison yard near a

building indentified at 5 A and B. Giboney observed

what appeared to be two inmates fighting and told Luecke

to stop the truck. They saw inmate King lying against a

wall in a partially sitting position and another inmate,

later identifed as Petitioner, making striking ‘otions

at King. An unidentified third inmate approached to

within two or three feet of the pair and ther dropped

back with his arms in the air. The inmate later

identified as petitioner straightened up, backed away

from King, and headed toward the entrance of 5 A and 3

building. No others were present at the time anc

neither Giboney nor Luecke Saw a weapon.

Petitioner was observed entering building 5 A anc

B. Another corrections officer, Bert Johnson, then

arrived and entered the building. He observed

Petitioner wiping blood off his hands and observea blo

stains o1, Petitioner's clothins.

A weapons search was coriductec and a knife with

fresh blood on it was fourd behind a set of padlocked

metal doors 15 to 20 feet down a hallway in the’ 5 A ar

Corrections officer Homer Jeffries who had arriveca

at the scene said he had observed King coming towards

him obviously bleeding. He testified that he took

custody of him ana “asked him who stuck him." No

statements from inmate King were offerec at eny

King was taken to the penitentiary hospital ana

examined by a penitentiary physician, Dr. Richara

Bowers, who called in a surgeon, Dr. Alan Doerhoff.

Kinc had a one-inch laceration on his right shoulder, a

two-inch laceration on his back, a one and one-half inch

laceration on his right wrist, and a three inch long

stab wound in his abdomen.

Dr. Doerhoff arrived approximately <5 minutes after

the call and commenced surgery, including a heart

massage,which lasted for approximately an hour and

fifteen minutes.

Dr. Doerhoff held the inferior vena cava shut with

his hand while King was moved into the operating room

because he said he did not believe he had time to

establish a sterile condition and still save King's

life. He performed the operation on King withoct

wearing a mask or cap, although he did wear sterile

surgical gloves.

King was transferred to the University of Missouri

Medical Center, again hac surcery on March 26, 15979, for

pericarditis, an inflammation of the sac surrounding the

heart, and again on April 3, 1979, for a heart attack.

On April 14, 1979, King had a fourth operation due to

infection preventing the scar tissue from holding one of

the knife wounds closed. He died on April 28, 197%, ci

a generalized infection.

After examination of the immediate area of the

stabbinc, Petitioner was taken to the office of Urban

Locke, a penitentiary investicator, for questioning.

Locke saw rea stains on Petitioner's clothine and a cut

on Petitioner's right index finger. Locke askea

Petitioner if he wanted to talk and Petitioner saic that

he would talk only to Lt. Leroy Looten. When Looten

appeared, Locke left at the request of Petitior-«

Looten spoke with Petitioner and told him to tell the

truth because it would be better to do so. Thereafter,

Investigator Locke returned to the room and Petitioner

mage an oral statement. This oral statement was offered

in the sentercing phase of trial. Petitioner's

statement related King's constant harassment of he ana

his celimate, Lindsay, regarding engagment in homosexual

activities.

Petitioner offered no evidence at either phase of

trial.

At the sentencing phase of the trial, the court

gave the following instructions (among others):

Instruction No. 18:

In determining the punishment to be assessed

against the defendant for the murder of Theron

King, you must first unanimously determine whether

at the time of the murder of Theron King the

defendant was in the lawful custody of a place of

confinement.

You are further instructed that the burden

rests upon the state to prove beyond a reasonable

Goubt the foregoing circumstance. The Gefendant is

not required to prove or disprove anything.

Therefore, if you donot unanimously find from

the evidence beyond a reasonable doubt that the

foregoing circumstance exists and that it is an

acgravating 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 servec a minimum of fifty years

of his sentence.

Instruction No. 19:

If you find and believe from the evidence

be'‘ond a reasonable doubt that the circumstance

su. mitted in Instruction No. 18 exists an: trict -.

is an aggravating Circumstance, it wili then become

your duty to decice whether a sufficient

aggravating circumstance or circumstances exists to

warrant the imposition of death as punishment of

Gefendant. In deciding that question you may

consider all of the evidence relating to the murder

of Theron ing.

You may also comsider the aggravating

circumstance referred to in Instruction No. 18

which you found beyond a reasonable doubt.

You may also consider the following

circumstance if you find from the evidence beyonac a

reasonable doubt that it exists ana that it is an

aggravating circumstance: that the defendant has a

prior criminal conviction for murder in the first

degree.

If you do not unanimously find from the

ev Gence beyonc a reasonable aoubt that 4

nusficient aggravating circumstance or

circumstances exist to warrant the imposition of

death as defndant's punishment, you must return a

veraict fixing his punishment at imprisonment for

life by the Division of Corrections without

eligibility for probatior or parole until he has

served a minimum of fifty years of his sentence.

Instruction No. 22:

You will be provided with forms of verdict for

your convenience. You cannot return any verdict as

the vercict of the jury unless all twelve jurors

concur in and agree to it, but it should be signed

by your foreman alone.

If you decide, after considering all of the

evidence and instructions of law siven to you, that

the defendant must be put to death for the murder

of Theron King, your foreman must write into your

verdict the aggravating circumstance submitted in

Instruction No. 18 which you found beyond a

reasonable doubt. In addition, your foreman must

write into your verdict the other specifically

mentioned aggravating circumstance sudmitted in

Instruction No. 19 which you found beyond a

reasonable doubt.

If, after considering ail of the evidence ana

instructions of law, you decide that the cefencaant

must be punished for the murder of Theron King Dy

imprisonment for life by the Division of

Corrections without eligibility for probation or

parole until he has servec a minimum of fifty years

of his sentence, your foreman will sign the verdict

form so fixing the punishment.

When you have concluded your deliberations you

will complete the applicable form to which all

twelve jurors agree and return it with all unusea

forms and the written instructions of the court.

If, after due deliberation, you are unable to

agree upon the punishment, your foreman will sigr

the vercict form so statinc. Im such case, the

court will fix the Gefendant's punishment at

impriscnment for life by the Division of

Corrections without eligibility for probation or

parole until he has servec a minimum of fifty years

of his sentence. You will bear in mind, however

that uncer the law it is your primary Guty anc

responsibility to fix the punishment.

Pursuant to said instructions, the jury wa

vercict form upon which to enter their verdict.

The jury was instructea upon only one statutory

acgravating circumstance in the penalty phase of trial,

namely that "...defendart was in the lawful! custody of a

place of confinement." (Instruction No. 18). After the

jury Geliberatea, they returnec their verdict assessir

the punishment at death and returned their veracict in

the following forr

Jurors: Use this form only if the punishment

fixed by you is death. See Instruction No. 22 for

Girections as to what must be written into the

verdict form if the death penaity is imposed. Use

the reverse side of this form if necessary. The

foreman'’s signature must appear at the ena of the

matter which you designate in writing as the

acoravating circumstance or circumstances which a}l]

twelve jurors founc beyonc a reasonable doubt.

We, the jury, having found the defendant

guilty of the capital murcer of Theron King, fix

the defendant's punishment at death, and we

designate the following aggravating circumstance or

circumstances which we find beyond a reasonable

doubt:

We have unanimously determined at the time of

the murder of Theron Kino the defencant was in the

lawful custody of a place of confinement submitted

in Instruction No. 18. We have also found without

reasonable doubt that the defencant has a prior

criminal conviction for murder in the first degree,

and appears the life sentence was no Geterrent to

further crime.

Foreman, Victor O. Whitaker.

Defendant's post-trial motions were denied and

sentence of death imposed.

Petitioner duly filed his Notice of Appeal on July

18, 1980, and submitted and argued his case to the

Missouri Supreme Court.

UNCONSTITUTIONALITY RAISED

The unconstitutionality of the sentence of deat

under the cruel and unusual punishment end the aue

process clause of the United States Constitution upon

the “aggravating factor" charged in Instruction No. if

the jury surplusage on the verdict fornr and the

excessiveness and disprportionality of this verc

the sole aggravating circumstance that defendant was

confined in a lawful place of confinement were raised

before the trial court in petitioner's Motion for New

through 683, point 13, paye 683, and point 16, page 684

635 S.W.2d 673 et seq.

The Missouri Supreme Court, pursuant ts ect

565.014.3(3), RSMo., require the court to determine

whether the sentence of death 18S excessive or

disproportionate in this case and establishes the basis

for a challenge of the constitutionality of the death

sentence under the uniformity requirement of Amendment 8

of the United States Constitution.

REASONS FOR GRANTING THE WRIT

The Supreme Court of Missouri has misapplied or

ignored this court's prior holdings in at least two

respects:

1. Where the jury's verdict specifically set out

as an aggravating..circumstance matters not specifically

pleaded, charged, or proved by the state and outsice the

aggravating circumstances contained in Missouri's

statutory scheme, Section 565.012.2(1-10), RSMo., the

Missouri Supreme Court has ignored this court's holding

in Gregg v. Georgia, 428 U.S. 153 (1976), mandating that

the sentencer’s discretion in capital cases be

"Girected" and "limited".

2. The Missouri statutory scheme permitting the

statutory aggravating circumstance specified in Section

565.012.2{9), RSMo., i.e., the status of petitioner as

in a lawful place of confinement, subjects petitioner,

merely by his status, to a more severe penalty tian any

other member of society, without the appiication of the

strict scrutiny test which should certainly be the test

when death is to be appiied.

The Missouri Supreme Court has, by upholicing the

verdict of ceath in this case, permitted a jury to go

far beyond its bounds as permitted by both statute ana

rulings of this court, permitted a Geath penalty to

stand upon a factor which was not found beyond a

reasonable aovbt ana upheld the oeath penalt,

merelv upon the status of an individual and not the

nature of the crime. Absent guidelines by this court,

the Missouri Supreme Court will permit jury verdicts to

run rampant and the standarc of proof beyond a

reasonable doubt to be diluted. A review of this

juagoment of death will provide this court with the

opportunity not only to right the wrong done in this

case, but to make clear to the court's of Missouri and

those other states with similar statutes the effects of

Gregg v. Georgia, supra, 426 U.S. at 201, Godfrey v.

Georgia, 446 U.S. 420 (1980), and Eddings v- Oklahoma,

No.80-5727, 30 Cr. L. 3047 n. 3 (1982) that no judgment

of death based upon wide jury discretion and faulty

findings is constitutionally permissible.

The resolution of these questions is not only 4

matter of life or death to petitioner, it would also be

the means of resolving similar questions in cases now

pending and yet to be filed in Missouri and throughout

the United States. This court must deal with what

standard of proof is necessary for each ana every

element before the death penalty can be inflictea,

whether status, aS an aggravating circumstance, i158

enough to impose the death penalty, and just how far the

jury can go in creating its own reasons a5 to why the

death penalty is appropriate.

Petitioner has diligently pursued and exhausted all

of his remedies in the state courts, and the only

remaining form 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

THE JUDGMENT OF DEATH IS EXCESSIVE AND

DISPROPORTIONATE AND THEREFORE VIOLATIVE OF THE FIFTH,

EIGHTH, AND FOURTEENTH AMENDMENTS WHERE THE JURY'S

VERDICT SPECIFICALLY SET ouT AS AN AGGRAVATING

CIRCUMSTANCE MATTERS NOT SPECIFICALLY PLEADED, CHARGED,

OR PROVED BY THE STATE AND OUTSIDE OF THE AGGRAVATING

CIRCUMSTANCES CONTAINED IN MISSOURI'S STATUTORY SCHEME ,

RSMo. 56%.012.2 (1-10).

The jury was instructed of the findings necessary

to impose the death penalty and given 4 verdict form

upon which to enter their verdict.

The jury was instructed upon only one statutory

aggravating circumstance in the penalty phase of the

trial, namely that "...defendant was in the lawful

custody of a place of confinement.” (Instruction No.

18). After the jury deliberated, they returned their

verdict assessing the punishment at death as set forth

above on vage

The Supreme Court of the United States in Furman v.

Georgia, 408 U.S. 238 (1972) held that the death penalty

as imposed by Georcia ana in @ number of states viclatea

the Eighth and Fourteenth Amendments to the United

States constitution and constituted cruel and unusval

punishment in that the death penalty statutes left the

4

trier ef facts with an unbridlea discretion allowing

death to be inflicted in an arbitrary and Capricious

Thereafter, numerous state legislatures attemptea

to reimpose tne death penalty tnroughn various schemes.

The statutes which have reimposed the deatt penalty anc

peal have been those in which te

death penalty was not authorized im every homiciae, burt

limited to a narrow number of circumstances in which the

homicide was committed in such @ manner as to co":stitute

"an aggravating circumstance.” Gregg v. Georgie. supra.

In Gregg, the court consi ‘erec the appea

petitioner Greag who had been convicted of armed robbery

ano murder anc sentenced to death pursuant to the

Georgia bifurcated sentencing procedure statute which 1s

substantially similar to the Missouri statute. The

court was primarily concerned with whether or not there

was adequate control of ana guidance to the jury in

rendering its decision in a4 aeath penalty case. The

court statea:

The idea that a jury should be given guidance in

its decision-making is also hardly a novel

proposition, Juries are invariably given careful

instructions on the law and how to apply it before

they are authorized to decide the merits of a

lawsuit. It would be virtually unthinkable to

«ie

follow anyother course in a legal system that has

traditionally operated by following prior

precedents and fixed rules of law. Greggs at 192,

193.

The court further held that the sentence of death

could only be imposed under the statute if a statutory

aggravating circumstance was found by the jury beyond a

reasonable doubt. While the jury, before imposing

death, must be able to consider any relevant mitigating

circumstance, the jury 15 limited to its imposition of

the death penalty to those cases in which an 4a sgravating

circumstance authorized by statute 15 found. (See

Lockett v. ¢ hio, 438 U.S. 568 (1978) and Ge afre y Vv.

Georgia, 466 U.S. 62 (1980)).

In Godfrey, the United States Supreme t

ancther look at the Georgia statute and not only hela

that the jury must find an aggravating cir umstance, but

held that the appellate < rt must exa ne the facts t

determine whether the aggravating ircumstance was

proved by the ev ence The ¢ rt ir 30df rey held that

the statute must be nstruvec if am. extremely marrov

manner if the eath penalty is to be uphelac ana } nd

that the evidence did not co! titute sufficient

In the case at bar, the jury acted outside the

scope of its instruction anc added to its verdict what

it considered to be an aggravating circumstance, 1.€.,

whether or not a prior sentence had a deterrent effect.

This was an exercise of discretion beyond the scope of

either the statutes or the court's instructions.

We do not know whether the jury meant that it

wished to deter anyone who might be inclined to commit a

homicide in the future or whether it was referring to

this particular defendant. Neither of those factors are

aggravating circumstances authorized pursuant to RSMo.

565.012.2(1-10) RSMo. 1978.

-ll-

In light of the jury's statement on the veraict

form, we cannot be certain that the jury found the

aggravating circumstance instructed upon, 1.€., the

homicide taking piace in a place of confinement, a

circumstance to justify tne death penalty. We will

never know the amount of influence the unauthorizea

factor hao in their assessment of punishment.

~

mn this case, as in Godfrey,

The jury's verdict

went beyond the aggravating circumstance authorizea by

statute. The jury here specifically indicated in its

verdict that aaaitior al factors were consiaerea which

are not autnorizea by statute. The court's imposition

of the death penalty upon this verdi« violat not t

the statutes of the State ol Missouri, bt re

ims wrtantiy, the Eighth ana Fourteenth Amendments of the

United States Constitution as interpreted by this Court

Not only was the verdict rengerea by the jury

outside the scope of its pe sible ts but in any

Geath penaity Se the entire pr eedinas, inciualr.j

the ury verdict, 1S subdj¢ =; a 1s higher standara of

reliability than 1n any ther riminal case due to the

uniqueness, severitv, and irrevocat ility of the deat!

sentence im ed In W Isom Vv North Carol

U.S. 29 (1976), Gardner v. Fiorida 430 U.S. 349

(1977), Beck v. Alabama, 477 U.S. 625 (1980), and

Lockett v. Ohio, 438 U.S. 586 (1978), the court

recognized the irreversible nature of the death penalty

and the need for an elevated standara of due process.

The neeca for control over the Jury ana direction ir

the jury process as referred to in Furman and Gregg,

plus the standard of heightened reliability as stated in

Woodson, Gardner, Beck and Lockett demand that the

sentence of death imposed on the defendant cannot stand.

THE JUDGMENT OF DEATH IS EXCESSIVE,

DISPROPORTIONATE, OVERBROAD AND OVERINCLUSIVE AND

THEREFORE ViOLATIVE OF THE FIFTH, EIGHTH, AND FOURTEENTH

AMENDMENTS WHEN IT IS IMPOSED SOLELY AS A RESULT OF A

FINDING OF DEFENDANT'S STATUS AS A PERSON LAWFULLY

CONFINED AS THE AGGRAVATING CIRCUMSTANCE PRESCRIBED BY

SECTION 565.012.2(9) (1978).

.012.2(9) proviages as an aggravating

circumstance that “the capital murder was committea by a

person in, or who has escaped from, the lawful custocy

of a peace officer or place of lawful confinement.”

This subjects petitioner, merely by his status, to 4

more severe penalty than any other membder f society

scrutiny test because the statute trammels fundamenta

personal rights. Under this test, we should look at the

’

state's interest, determine whether it 1s compeliins,

and then determine if the statute impinges on the

fundamental personal right in the least restrictive

manner. See generally Shapiro v. Thompson, 394 U.S. 6186

(1969). Under this analysis, this aggravating

circumstance woula be unconst itutional becacus

overincluSsive.

In the dissenting opinion by Juage Seiler, joined

by Judge Bardgett, the Missouri Supreme Court points out

that factors such as reason for incarceration, length of

sentence,and parole are not even considered and this

overgeneralization 15 constitutionally inadequate as the

predicate of a death sentence.

Judge Seiler's dissenting opinion (Appendix A, 627

~~.

S.W.2d 673, 691) points out that this is the first case

reviewed by the Missouri Supreme Court where the jury

imposed the death penalty after finding as the only

statutory aggravating circumstance that defendant was

lawfully confined at the time of the murder. After

discussing two other cases in which the same aggravating

circumstance was submitted, State v. Shaw, 6365 S.W.2d

657 (Mo. banc i982), cert. den. 51 U.S.L.W. 3288 (Oct.

12, 1982), and State v. Trimble, No. 62523 (Mo. banc

August 31, 1982), Judge Seiler noted that this is the

only case in which the sole aggravating circumstance was

the defendant's status in a place of lawful confinement.

Roth other cases were submitted upon other agcravatins

circumstances. Judge Seiler points out that the

principal opinion uses the rational basis test to uphold

the constitutionality of Section 565.012.2(9) (the

agcravating circumstance of lawful place of confinement

rather than the appropriate standard of review which 1s

strict scrutiny because "the statute does trammel

fundamental personal rights.” This aggravating

circumstance, prescribed by Section 565.012.2(9) is

unconstitutional because it 15 overinclusive. "Tt Goes

not Gifferentiate between those who have notnins,

lose for a killing in prison unless they receive the

death penalty and those who are not in that class." 555

S.W.2d at 693. This section lumps everyone in prison

into that same category regardless of lencth of sentence

or chance of parole. This 1s over inclusive.

Further, those factors set out aS agcravating in

the statute are factors which tend to show the murder to

be Gepraved, vicious, at random, for monetary gain or

for escaping the confines of the law. Petitioner's

incarceration supplies no added criminal culpability on

the part of Bolder nor justifies any extenuating

circumstance which would support the ceath penalty.

atiie

The Missouri court had the obligation of comparing

the sentence in this case with all other death sentences

imposed pursuant to Section 565.012.2 and in Going SO,

had no adequate standard of review because no other

defendant had been tried, convicted, and given the death

penalty pursuant to Section 565.012.2(9) based solely on

the statutory aggravating circumstance instructed upon.

When this court in 1976 approved the Georgia,

Florida and Texas capital sentencing statutes on their

face, Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v.

Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.&.

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 anc

capricious infliction of the deeth penalty which had

been condemned in Furman v.Georgia, 4068 U.S. 238 (1972).

The court placed particular reliance on the proceGures

for appellate review, Gregg v. Georgia, Supra, 428 US.

at 166-168, 204-06 (opinion of Stewart, Powell and

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

and Burger, C.J., concurring), viewing it as an

effective means by which the state would insure that the

death penalty would be applied in a fair, rativné.,

consistent and even-handed manner, Proffitt v. Florida,

supra, 428 U.S. at 259-60; Jurek v. Texas, supra, 426

U.S. at 276; see also Gardner v. Florida, 430 U.S. 349,

361 (1977), so that similar cases would reach similar

results, Grego v. Georgia, supra, 428 U.S. at 198, 205

(opinion of Stewart, Powell and Steens, JJ.); id. at 225

(white, J. concurring); Proffitt v. Florida, supra, 429

U.S. at 251, 253, 258 (opinion of Stewart, Powell and

Stevens, JJ.): Jurek v. Texas, Supra, 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 a “meaningful basis for

distinguishing the few cases in which {the death

<7 =

penalty) is imposea from the many cases in which it 15

not." Gregg v. Georgia, supra, 428 U.S. at 198, quoting

4

Furman v.Georgia, supra, 406 U.S. at 313 (White, J

concurring).

The comparison of the judgment in this case with

the judcments under the same Missouri statute, 2.¢€.

State v. Shaw, 536 S.W.2G 667 (Mo. banc 1982), cert.

den. 51 U.S.L.W. 3288 (Oct. 12, 1982), and State v.

Trimble, No. 62523, Aug. 31, !982, as set forth in Jud

Seiler's opinion is thorough, compelling ana complete uj

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

court by repeating it here.

Bolder's death sentence cannot be rationally

reconcilec with the judgments of the Missouri Courts in

the other cases of Capital Murder in which punishment:

were imposed uncer the same statute.

The statute, as applied in his case, 15

unconstitutionally overbroad, overinciusive,

aiscriminatory, stan jardliess, disproportior ate and

random. As so appliec ¢t this judgment, it Geprives

Bolcer of his life without Gue process of law ana

subjects him to the ¢ ruel and unusual punishment of

death.

The judgment of death should be reversec.

CONCLUSION

For the reasons set forth above it 15 respectfully

submitted that this Petition for Writ of Certiorari

should be grantec.

-etfully bmitted,

Lori J. Levime

CARSON, MONACO, COIL, RILEY

AND McMI IN, P.C.

211 East Capitol, P.O. Box 235

Jefferson City, Missouri 65102

Telephone: (314) 636-2177

«ite

P past stad chy)

Richard H. Sindel

SINDEL, SINDEL & SINDEL

15A N. Meramec, Suite 200

Clayton, Missouri 63105

Telephone: (314) 721-6040

Counsel for Petitioner.

=i?«

STATE v. BOLDER Mo. 673

Cite os, 635 S.W.26 673 (Mo. 1962)

STATE of Missouri, Respordent,

v.

Martsay BOLDER, Appellant.

No. 62362.

Supreme Court of Missouri,

En Banc.

July 6, 1982.

Rehearing Denied Aug. 2, 1982

Defendant was convicted before the

Circuit Court, Randolph County, Samuel E.

Semple, J., of capital murder and was sen-

tenced to death, and he appealed. The Su-

preme Court, Welliver, J., held that: (1)

evidence supported conviction; {2} death

sentence is not unconstitutional; (3) exist-

ence of one or more aggravating circum-

stance not outweighed by mitigating cir-

cumstances does not require imposition of

death penalty; (4) application of statutory

aggravating circumstances did not create 8

new crime of capital raurder separate from

capital murder with penalty of life in prison

and 50 years without parole; (5) in its re-

view of appropriateness of death penalty,

the Supreme Court is not limited to death

sentences imposed since effective date of

capital punishment law; (6) juror who stat-

ed that death penalty would affect her abil-

ity to judge the facts was properly excused,

(7) it was not abuse of discretion to order

defendant restrained in the courtroom, and

(8) death penalty was neither excessive nor

disproportionate to punishment imposed in

similar cases

Affirmed

Seiler, J., filed dissenting opinion, in

which Bardgctt, J., concurred.

1. Criminal Law @1144.13(4, 5, 6), 1159.-

23)

In assessing sufficiency of the evidence

tw support capital murder conviction, the

Supreme Court was required to accept as

true al! evidence and inferences that tended

to support the verdict and disregard evi-

dence and inferences to the contrary and its

Gs sw ae 15

inquiry was limited to whether the evi-

dence, viewed in light most favorable to the

State, was sufficient to support the verdict.

MAI Cr.2d 15.02; V.A.M.S. § 565.001.

2. Criminal Law e566

Testimony of a single witness is suffi-

cient to establish identity of a criminal de-

fendant if the jury believes it beyond a

reasonable doubt. V.A.M.S. § 565.001

3. Homicide 5

Fact that victim may have dicd from

infection resulting from defendant's atab-

bing rather than from the stabbing itself

was irrelevant to defendant's guilt of capi-

tal murder, especially as jury could have

found from seriousness of the stah wound

that defendant knew he was practically cer-

tain to cause death, V.AMS. ¢ 565.001.

4. Homicide @ 147

Premeditation and deliberation may be

inferred from circumstances of the homi-

cide. V.A.M.S. § 565.001

5. Homicide @14(2)

For capital murder purposes, “premedi-

tation” is present whenever defendant

thinks about the act for any length of time,

however short, before he acs. V.AMS

§ 565.001

See publication Words and Phrases

for other judicial constructions and

Gefiniwons

6. Homicide @ 14(2)

A finding of premeditation for capital

murder purposes depends not so much on

the time involved as on an inference reawn-

ably drawn from the evidence and circum-

stances surrounding the act. VAMS

§ 565.00)

7. Homicide 14?

Although incriminating statement wax

not before the jury before guilt phase of

capital murder trial, jury could have found

premeditation from the fact that defend-

ant's attack on fellow penitentiary inmate

occurred in an areca not visible from the

guard towers, from fact that prisoners were

not allowed to carry weapons and from

want of evidence of bruises cither on vie-

APPENDIX A -18-

674 Mo.

tim, who was fatally stabbed, or on defend-

ant that would indicate that an altercation

preceded the stabbing, and those factors

might also indicate deliberation but, in any

event, with evidence of provocation lacking,

the previously demonstrated intent to kill

provided deliberation. V.A.MS. § 565.001.

8. Constitutional Law @=270(1)

Criminal Law @=1213

Death sentence violates neither the

crue! and unusual! punishment clause of the

Eighth Amendment, due process clause of

the Fourteenth Amendment, due process

clause of the State Constitution, cruel and

unusual punishment clause of the State

Constitution nor the “natural right to life”

clause of the State Constitution. VAMS.

& 565.008, subd. 1; VAM.S.Const.Art 1,

$§ 2, 10, 21; U.S.C.AConst. Amends 8, 14

9. Criminal Law © 986.6(2)

Fact that sentencing hearing in 8 capi-

tal punishment case is separate from guilt

phase is not unconstitutional as unduly bur-

dening a capital defendant's decision

whether to testify, in violation of privilege

against sclf-incrimination and, in any event,

facts did not support theory that statute

deprived defendant of effective assistance

by restricting his strategic options as de-

fendant received a presentence hearing and

was given an opportunity to present his

story to the jury but chose not to do so and

offered no evidence at either guilt or sen-

tencing phase. V.AMS § 565.006, subd. 2,

USCA.Const. Amends. 5, 6

10. Criminal Law @1208(1)

Time between guilt and sentencing

phase of death penalty case is not unconstr-

tutiona) as insufficient time in which to

“cool off” after rendering a guilty verdict.

V.AMS. § 565.006: US.C.A.Const Amend

4

11. Constitutional Law @= 250.1(2)

Aggravating circumstance for capita!

punishment that murder was committed by

one in lawful custody of s place of lawful

confinement did not impinge on fundamen-

tal personal rights and, hence, rationa! rela-

tionship standard was the appropriate one

by which to gauge constitutionality on

635 SOUTH WESTERN REPORTER, 24 SERIES

equal protection challenge, ie., that classifi-

cation subjects prisoners because of their

status to more severe penalty than it docs

other members of society. V.A.MS. § 565.-

012, subd. 29); US.C.A.Const.Amend. 14.

12. Constitutional Law o=250.1(2)

Homicide 351

Aggravating circumstance for capital

pusishment that murder was committed by

one in lawful custody of a place of lawful

confinement does not violate equal protec-

tion as irrationally subjecting prisoners be-

cause of their status lo a more severe penal-

ty than other members of society and impo-

sition of capital punir\ment is rationally

related to the state's legitimate interests in

preventing crime and protecting other per-

sons with whom prisoners come in contact

and legislature could have concluded that

death penalty is appropriate where impris-

onment already imposed has sot deterred

capital murder. V.AMS. § 565.012, subd

29); US.C.A.Const.Amend. 14

13. Homicide 3K

Where jury in capital punishment cas:

found aggravating circumstance that de-

fendant had a prior crimina! conviction for

murder in the first degree and that defend-

ant was in lawful custody of place of con-

finement at time of instant murder the jury

did not exceed scope of its charge when it

opined that it appeared that the life sen-

tence defendant was serving at time of

instani offense was no deterrent to further

crime and the excess verbiage was not an

attempt to find another aggravating cir-

cumstance. VAMS. § 566.012, subd. 29)

14. Criminal Law © 1208(1)

Requirement of capital sentencing

acheme that sentencing authority consider

whether sufficient mitigating circumstanc-

es exist which outweigh aggravating cir-

cumstance does not impermissibly place

burden on defendant to negate aggravaling

circumstances as existence of one or more

aggravating circumstance not outweighed

by mitigating circumstanecs docs not mean

that the death penalty must be imposed

automatically and finding that one or more

oi Se-

ca a

statutory ay)

is but a thn

before the j:

the evidence

tence and unm

obliged to im

008, sulxi. 1,

15. Criminal

Constitut

capital penalt

ble doubt th

outweigh =m

theugh guilt

reasonable de

wravating ¢i

upon which t

tion of death

is not a matt

facts alone

565 012, subd

16. Homicid

Applicat

circumstance

ishment do

which a defe

first tn ing c

which death

crime separ

penalty of li

out parole

subd. 1, 565

17. Criminal

In dete!

is dispropor

similar case

limited to tl

ty has been

May 26, 197

there be ev

ent imposit

Court can o

which both

were submi

cases affirm

if reversal

tionality of

cases pendi

§ 65014%

4.012, subd

shment case

ze that de-

aviction for

hat defend-

iace of con-

der the jury

rge when it

he life sen-

at time of

t to further

was not an

uvating cir-

subd. 29)

sentenang

ily consider

ircurnsLanc-

STATE v. BOLDER Mo. 675

Khe as, 35 S.W.26 673 (Mo. 1982)

statutory aggravating circumstance exists

is bet a threshold requirement to be met

before the jury can, after considering all

the evidenSe, recommend the death sen-

tence and under no circumstance is the jury

obliged to impose death. V.A.M.S. §§ 565.-

008, subd. 1, 665.012, subd. 1(4)

15. Criminal Law = 1208(1)

Constitution does not require that a

capital penalty jury find beyond a reasona

ble doubt that aggravating circumstances

outweigh mitigating circumstances, al-

though guilt must be established beyond a

reasonable doubt as must the statutory ag-

gravating circumstance or circumstances

upon which the jury bases its recommenda-

tion of death and imposition of punishment

is not a matter resolved by determination of

facts alone. V.A.M.S. §§ 565.008, subd. 1,

565.012, subd. 1(4).

16. Homicide @= 354

Application of statutory aggravating

circumstances for imposition of capital pun-

ishment do not create a new crime for

which a defendant can be convicted without

first being charged, and capital murder for

which death penalty can be imposed is not a

crime separate from capital murder with

penalty of life in prison and SO years with-

out parole. V.A.MS. §§ 565.001, 565.008,

subd. 1, 565.012, subd. 14)

17. Criminal Law © 1206(2)

In determining whether death penalty

is disproportionate to penalty imposed in

similar cases, the Supreme Court is not

limited to those cases in which death penal-

ty has been imposed under the law cffoctive

May 26, 1977, but, rather, its concern is that

there be evenhanded, rational and consist-

ent imposition of death ¢ :ntences and the

Court can consider as similar those cases in

which both death and life imprisonment

were submitted to the jury including those

cases affirmed on appeal! and those reversed

if reversal was predicated upon dispropor-

tionality of sentence and may also consider

cases pending before the Court. V.A.M.S.

§ 546.014.%3)

18. Criminal Law = 1206(2)

In reviewing propriety of imposition of

the death penalty the Supreme Court is not

required to consider all murder cases in

which a defendant had at some point in the

proceedings been charged or chargeable

with capital murder and relevant cases are

those in which the judge or jury first found

defendant guilty of capital murder ead

thereafter chose ‘etween death or li%e im-

prisonment without possibility of parole for

at least 5O years and comparison need not

include cases such as those in which the

state chose not to charge defendant with

capital murder, the state agreed to pleu

bargain to lesser charge, conviction was for

an offense less than capital murder or th

state waived the death penalty. V.A.MS

$§ 565.014, 565.014, subds. 3, 33), 5.

19. Constitutional Law @=42.2(2)

Where defendant was convicted of ca,-

ital murder and made no contention that

capital murder sentencing procedure is ay-

plied differently among defendants convict-

ed of that offense, he could not be heard to

complain that bifurcated capital murder

procedure denicd equal protection to de-

fendants charged with capital murder but

convicted of lesser offenses. VAMS

§§ 565.00), 545.006, subd. 2; USCA Const

Amend 14

| 20. Jury o33(2.1)

Since defendant presented neither evi-

dence of nor alleged other evidence of jury

bias, he was not entitled to an evirentiary

hearing to show that his death<qualified

jury was biased toward conviction and that

he thereby was prejudiced VAMS

§ S45.008, subd 1

21. Jury @ 108

Witherspoon, ic, Uhat veniremen muy

be excused for cause if they make unmis-

takeably clear that their attitude toward

the death penalty would prevent them from

making an impartial decision as Ww guilt,

applies to answers elicited from veniremen

rather than questions asked on voir dire

V.AM.S. § 566.008, subd. 1,

-20-

676 Me.

22 Jury 108

It was not error to exclude for cause

one venire woman who gave affirmative

to inquiry whether death penalty

would affect her ability to judge the facts

V.AMS. § 565.008, subd. 1.

23. Criminal Law @=590(1)

Denial of request for continuance, as

made at conference before voir dire, to in-

terview four potential witnesses who were

penitentiary inmates was not abuse of dis-

cretion where appointed counsel stated that

he had told defendant that he would

present no evidence until at least May 6 and

trial court indicated that it would issue

subpoenss so that witnesses would be avail-

able for interviewing on morning of May 6.

24. Criminal Law @=637

Trial court has discretion whether to

order a defendant restrained whenever it is

necessary to maintain order and security in

the courfroom.

25. Criminal Law 637

Trial court was justified in ordering

defendant bound where defendant, upset

with refusal to grant continuance and re-

move appointed counsel, overturned library

table in pretrial conference and scuffied

with guards approximately five minutes,

knocked over his chair in courtroom while

attempting to rise, and had to be subdued

by guards and resisted being placed in chair

and was required to be held by four guards

and continually amerted that he would not

remain in the courtroom and trial court

repeatedly told defendant that he would not

be bound if he promised to behave and

continuing shackling past first day of trial

was not abuse of discretion where defend-

ant had been convicted of one murder and

was on trial for another and there was no

evidence of prejudice.

26. Criminal Law © 163503)

Defendant could not be heard to com-

plain that he appeared at trial in prison

clothing where he was offered civilian

clothing but said there was none his size

and when trial court asked defendant

whether he wished to put on civilian cloth-

ing defendant stated that he was not going

635 SOUTH WESTERN REPORTER, 24 SERIES

in the courtroom and defendant at no time

objected to wearing prison clothing during

trial.

27. Criminal Law @>404(1)

Demonstrable evidence is admissible if

it throws any relevant light on material

matter at issue or if it tends to establish

any fact in issue or aid the jury in any way

in arriving at # correct verdict.

28. Criminal Law © 404(1)

Tria) court has discretion whether to

admi: or exclude demonstrable evidence

29. Criminal Law o> 404(4)

Fact that none of the witnesses who

testified in homicide prosecution ever saw

subject knife in defendant's possession did

not mean that trial court erred in admitting

the knife as there was evidence linking

defendant to the knife and linking both

defendant and knife to fatal stabbing, in-

cluding evidence that defendant was seen

standing over victim making stabbing mo-

tions toward latter's stomach and that knife

was found 15 to 2 fect from doors of

building which defendant was seen enter-

ing

30. Criminal Law ©3858

Although forensic serologist testified

that victim's blood type was the same as

that of 45% of Americans and that because

of small quantity she was unable to test it

for factor PGM,, objection of remoteness

went to weight to be accorded evidence that

blood on defendant's clothes matched that

of the victim, rather than its admissibility

31. Criminal Law © 1134(3)

Where defendant did not object on ap

peal that admission of photograph of knife

was cumulative to admission of knife and

thus error, reviewing court would not ad-

dress the question

32. Criminal Law @412.1(1)

Defendant's refusal to make a written

statement had no bearing on voluntariness

of his oral statement where defendant was

advised of his rights and made a knowing

and intelligent waiver of right to remain

-21-

tilent ard o

sunt was no

and interro

promises w

was not bes

ened or coe:

33. Homicic

Review

ceeding esta

not impose:

Prejudice o

VAMS. §

34. Crimina

Homicic¢

Imposit

Stabbing of

neither exc

punishment

sidering tha

sentence for

§§ 565.001,

subds. 1,3

On

35. Crimina

Content

failing to in

a lesser inc!

could not b

brief

36. Constits

Failure

der as less

murder did

trial court is

der and ma

not support

felony-murd

felonies we

061, 565.003

Lori J. Le

lant

John Ash

Baker, Assi

respondent

}. All statut

= re,

‘STATE v. BOLDER

Mo. 677

Cite as, 635 5.W.24 673 (Mo. 1982)

silent and one officer testified that defend-

ant was not shackled during interrogation

and interrogating officer testificd that no

promises were made and that defendant

was not beaten, struck or otherwise threat-

ened or coerced

33. Homicide e354

Review of record of capii,' murder pro-

ceecling established that death e-ntence was

not imposed under influence of passion,

prejudice or any other arbitrary factor

V.A.MS. § 565.014, subd. 3

3M. Criminal Law = 1206(2)

Homicide @= 354

Imposition of death penalty for fatal

stabbing of fellow penitentiary inmate was

neither excessive nor disproportionate to

punishment imposed in similar cases, con-

sidering that defendant was serving a life

sentence for first-degree murder. V.AMS

$§ 565.001, 565.012, subd. 29), 565.014,

subds. 1, 3

On Motion for Rehearing

35. Criminal Law @ 1038.2

Contention that trial court erred in

failing to instruct on first-degree murder as

& lesser included offense of capitai murder

could not be raised for first time in reply

brief

36. Constitutional Law @=268(1!)

Failure to instruct on first-degree mur-

der as lesser included offense of capital

murder did not abridge due process where

trial court instructed on second-degree mur-

der and manslaughter and evidence would

not support an instruction on [first-degree

felony-murder as none of the enumerated

felonics were present. VAMS. §§ 565.-

001, 565.003, U.S.C_A Const Amend. 14

Lori J. Levine, Jefferson City, for appel-

lant

John Asheroft, Atty. Gen, Nancy Kelley

Baker, Asst. Atty. Gen., Jefferson City, for

respondent

1. All statutory references are to RSMo 1976

WELLIVER, Judge.

Appellant was convicted of capital mur-

der, § 565.001, RSMo 1978,' and the jury

sentenced him to death pursuant to § 565.-

O0R(!). This Court has jurisdiction for orig-

inal appeal. Mo.Const. art. V, § 3. Our

review includes both consideration of al-

leged trial errors and review of the death

sentence. § 565.014. We affirm both the

conviction for capital murder and the sen-

tence of death

I

The offense occurred in the Missouri

State Penitentiary. Appellant Bolder was

serving # life sentence for first degree mur-

der.

On March 14, 1979, at approximately 3.15

P. M., vocational teachers Kenneth Giboney

and Arthur Luecke were returning by truck

from Lincoln University. As they came

around the building identified as 5 A & B

and headed toward the maintenance and

machine shop, Giboney observed what ap-

peared to be two inmates fighting and told

Luecke © stop the truck. Both men got

out of the truck some thirty fect from the

altercation. They saw an inmate, later

identified as Theron King, lying against the

wall in a partially sitting position A

second inmate, later identified as appellant,

was standing over King and making strik-

ing or stahbing motions toward King’s

stomach. King appeared to be trying to

move from side io side in an attempt to get

out of the way. An unidentified third in-

mate approach! to within two or three

feet of the pair and then dropped back with

his arms in the air The inmate later iden-

tifted as appellant straightened up, backed

away from King, and then headed toward

the entrance of the 5 A & B building. No

others were known to be present at the

scene. Neither Giboney nor Luecke saw a

weapon at the time

As appellant headed for the 5 A & B

building entrance, King rose and started

toward the maintenance and machine shop

Luecke saw blood on King’s T-shirt and

unless otherwise indicated

-22-

pursuca appellant into the 5 A & B building

not more than fifteen seconds behind him.

Burt Johnson, another corrections officer

who had arrived at the scene, also entered

the building and ascended the stairs in pur-

suit of appellant. When Johnson reached

the top of the steps he saw appellant stand-

ing behind a desk and wiping blood off his

hands with a handkerchief. Appellant was

wearing green trousers and a red jacket of

the same type Luecke had seen on the man

standing over King and making stabbing

motions at him. Blood stains on appellant's

clothes were of the same type as King’s

blood. Johnson frisked appellant, found no

weapons on him, and took him back down-

stairs.

A weapon search was conducted in the

immediate area of the stabbing. No weap

on was found outside at the scene, but «

ciear plastic bag stained with blood of the

same type as King’s was found nearby.

The plastic folder contained, among other

things, inmate paper and appellant's per-

sonal correspondence. Prison officials

found a knife with fresh blood on it in the 5

A & B building behind a set of padiocked

meta! doors fifteen ic twenty feet down &

hallway and to the lelt of the entrance

appeliant had been seen entering A seven-

eighths inch space separates the bottom of

the doors from the floor The knife was

thin enough to have been slid beneath the

doors. When investigation of the area was

completed, appellant was taken to the of-

fice of Urban Lock, a penitentiary investi-

gator, for questioning

Officer Homer Jeffries, who had arrived

at the scene, saw King walking toward the

maintenance and machine shop He fol-

lowed King and reached him approximately

seventy feet from where he had been

stabbed and started to escort him to the

prison hospital After traveling about 100

feet, King said he could go no further

the hospital. King had a one inch lacera-

tion on his right shoulder, a two inch lacera-

635 SOUTH WESTERN REPORTER, 2¢ SERIES

tion on his back, a one and one-half inch

laceration on his right wrist, and a three

inch long stab wound in his abdomen.

Dr. Doerhoff arrived at the hospital with-

in forty-five minutes after the stabbing.

King’s inferior vena cava, which carries

blood from the legs, intestines, kidneys, and

liver to the heart, was lacerated in the

stabbing. Dr. Doerhoff had to massage

King’s heart with his hand in order to start

it pumping again Because of the serious-

ness of the wound, Dr. Doerhoff held the

inferior vena cava shut with his hand while

King was moved into the operating room

King was in surgery for about an hour and

fifteen minutes, during which he was given

thirteen pints of blood and twenty-four

pints of other fluids

Dr. Doerhoff testified that such a serious

injury to the inferior vena cave is fatal

ninety percent of the time The emergency

was so great that Dr Doerhoff did not

believe he had time to establish a sterile

condition and atill save King’s life. He

performed the operation on King without

wearing @ mask or cap, although he did

wear sterile surgical gloves

King was then transferred to the Univer-

sity Medical Center On March 26, 1979, he

had surgery to remedy pericarditis, an in-

flammation of the sac surrounding the

heart. King underwent surgery again on

April 3, 1979, because he had suffered s

heart attack. Various other procedures

were conducted in order to determine the

cause of an apparent infection in King's

abdomen. On April 14, 1979, King had a

fourth operation because infection prevent-

ed the scar tisave from holding one of his

knife wounds closed

King died April 28, 1979 Dr Lowery

Arnold, who performed the autopsy on

King’s body, testified that in his medical

opinion King died from a generalized infee-

tion caused by a stab wound to the abdo-

men

Investigator Lock, returning to his office

from other dutics, found appellant and the

guard who had brought him there for ques-

tioning. Investigator Lock saw red stains

-23-

ee ee

—-=eenmeuwvweoen2zoese

oon ae =S oF oe lhUrrelCUe

STATE v. BOLDER Mo. 679

Cite an, 635 S.W.2d 673 (Me. 1962)

on appellant's clothing that appeared to be

blood and saw = cut on appellant's right

index finger and smeared blood on his right

hand. Lock asked appellant if he wanted to

talk about the incident, and appellant re-

plied that he wanted to talk to Li. Leroy

Looten. Lt Looten was called and camc

within minutes. Lt Looten went into the

office, and, at appellant's request, Investi-

gator Lock left the room and closed the

door. Lt. Looten spoke with appellant icss

than a minute, probably not move than thir-

ty to forty-five seconds, and told him only

to tell the truth because it would actually

be better to do so. Appellant said he was

roady to make a statement, and thereupon

Investigator Lock was called back into the

room. Appellant was read his rights, said

he understood them, and signed a waiver

There was no evidence of any promises,

threats, or other coercion. Nor was there

any allegation that appellant did not under-

Stand the waiver he signed. Appellant

matic no statement before he was read his

rights. He refused to make a written state-

ment, but in Lt. Looten’s presence he made

an oral statement to Investigator Lock.

Appellant's oral statement was offered

only im the sentencing phase of the trial

Investig itor Lock testified that appellant

sal the wacident went back four to six

months to when King was his cell mate.

Appellant said that King knew who mur-

dered appellant's brother but would not tell

him. Frank Lindsey became appellant's cell

mate after King moved out. Thereafter,

King began harrassing appellant and telling

others that appellant and Lindsey were en-

gaging in homosexua! activities. Appellant

said he got tired of such accusations Ap-

pellant said that on March 14 he was walk-

ing to the 5 A & B building when he saw

King and another inmate sitting on the

lege They called appellant names as he

walked by, and an argument followed. Ap-

pellant said he did not like being called

2 Investigator Lock recounted at the hearing on

the motion to suppress appellant's statement

that appellant said that when he sew officers

he walked ito the 5 A & B building and tossed

the knife He said sppeilant described the

knife as 2 homemade one about ten inches long

names. He left and returned to the yard

with the plastic bag containing papers and

correspondence. He got the knife, put it in

the plastic bag, and returned to where King

was. Appellant asked King what he had

said earlier, and King called him “a pussy-

assed-nigger.” Appellant then pulled out

the knife and stabbed King?

i

{1} Appellant argues that the trial court

erred in overruling his motion for judgment

of acquittal at the close of the state's evi-

dence and in submitting the capital murder

verdict directing instruction, MAI CR2i

15.02, because there was no erelibie evi-

dence upon which the jury could have found

him guilty of (1) stabbing and cutting King,

(2) intersding to kill King, (3) knowing that

he was practically certain to cause King’s

dvath, and (4) reflecting fully and cooly

upon killing King before doing so. In as-

sessing the sufficiency of the evidence, we

must accept as truc ali evidence and infer-

ences that tend to support the verdict and

disregard all evidence and inferences to the

contrary. Our inquiry is limited to whether

the evidence, viewed in the light most fa-

vorable to the state, is sufficient to support

the verdict. State v. Turner, 623 SW. 4,

6 (Mo. banc 1981), State v. Strickland, 609

SW 2d 392, 395 (Mo. banc 1980)

[2-7] The testimony of a single witness

is sufficient to establish the identity of a

criminal defendant if the jury believes it

beyond a reasonable doubt. State v. Tuck-

er, 451 S.W.2d 91, 95 (Ma.1970); State s

Stockdale, 415 S.W.2d 769, 771 (Mo.1967),

State v. Williams, 376 S W 2d 133, 136 (Mo

1964). In this case not one witness, but

two, observed appellant standing over King

and making striking or stabbing mutions

toward King’s stomach. Apyellant wax

found wiping blood off hic hands with a

handkerchief, his clothes when he was

with 8 white shaped handle and with @ hole in

the end of the biade = This testimony, however

was not elicited during the sentencing phase of

the trial. and Investigator Lock's written re

port, which may or may not have included

these facts. was not admitied into evidence

the

———e

found were of the same type that King’s

assailant was wearing; and the stains on

his clothing were of blood of the same type

as King’s. Second, the knife wound in

King’s abdomen severed one of the major

blood vessels in the body, and “{a) killing

through the use of a deadly weapon on a

vital part of the body of the victim is suffi-

cient to permit « finding of intent to kill.”

State v. Strickland, 609 S.W.2d at 394. It

makes no difference that King died from an

infection resulting from the stabbing rsther

than from the stabbing itself. Appeilant

nevertheless is legally responsible. See

State v. Brandt, 467 S.W.2d 948, 960 (Mo.

1971), State v. Cooley, 387 S.W 7d S44, 48

(Mo.1965). Third, the jury could have

found from the seriousness of the stab

wound that appellant knew he was practi-

cally certain to cause King’s death. Final-

ly, the jury could have found beyond «

reasonable doubt that the killing occurred

after premeditation and deliberation, which

may be inferred from the circumstances of

the homicide, State v. Strickland, 609

S.W.2d at 394. Premeditation is present

whenever the defendant thinks about the

act for any length of time, id, however

short, State v. Wood, 596 S.W.2d 394, 400

(Mo. banc), cert. denied, 49 U.S. 876, 101

S.Ct. 221, 6 LEd2d 98 (1980), before he

acts. 4 finding of deliberation depends not

so much upon the time involved as upon an

inference reasonably drawn from the evi-

dence and circumstances surrounding the

act Id Appeliant’s statement was not

before the jury during the guilt phase of

the trial, but the jury nevertheless could

have found premeditation from the facts

that the attack occurred in an area not

visible from the guard towers, prisoners are

not allowed to carry weapons, and there

was no evidence of bruises on either King

or appellant that would indicate that an

altercation preceded the stabbing. Those

factors might also indicate deliberation, but,

in any event, “[w)ith evidence of provoca-

tion lacking, the previously demonstrated

intent to kill provided deliberation.” State

v. Sturdivan, 497 SW .2d 139, 142 (Mo.1973),

overruled on other grounds, State v. Ander-

gon, 515 S.W.2d 534, 542 (Mo. bane 1974).

635 SOUTH WESTERN REPORTER, 2d SERIES

The evidence was sufficient to support the

verdict.

iit

Appellant raises a number of constitu-

tional challenges to the death penalty and

to Missouri's statutory precedures for im-

posing it, all of which we find meriticss

A

{8} Appellant argues that the death sen-

tence violates the cruel and unusual punish-

ment clause of the eighth amendment and

the due process and equal protection clauses

of the fourteenth amendment of the United

States Constitution. He also argucs that it

violates the duc process clause of Art I,

§ 10, the crue! and unusual punishment

clause of Art. 1, § 21, and the “natura!

right to life” clause of Art. I, § 2 of the

Missouri Constitution. Our discussion in

State v. Newlon, 627 SW.2d 606, 612-13

(Mo. banc 1982), petition for cert. filed,

US.LW. (US. May 5, 1982) (No. 81 666),

answers al) but the equa! protection claim,

and we cannot find, and appellant does not

offer, a reason for sustaining it. We sce no

reason to accept appellant's invitation to

reconsider our previous holding

Appellant contends that the sentencing

hearing, separated from the guilt phase of

the trial, § 565.006(2), is unconstitutional

because (1) it unduly burdens his decision

whether to testify in his own behalf in

violation of the privilege against se!f-in-

crimination conferred by the fifth amend-

ment; (2) it denies him adcquate assistance

of counsel, in contravention of the sixth

amendment, because there is inadequate

time to prepare for the punishment phase

of the trial after conclusion of the guilt

phase; and (3) there is no “cooling off”

period between the guilt and punishment

phases “to permit the jurors an objective,

unbiased, unprejudice:! examination of the

factors they must consiler in assessing pun-

ishment.”

-~25-

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STATE v. BOLDER Mo. 68]

Cite as, 635 S.W.24 873 (Mo. 1982)

[9} Appellant argues with rezpect to the

first contention that the statute “extends

pre-sentence hearings only to those criminal

defendants charged with and convicted of

capital murder,” that it is “impossible to

predict whether an opportunity will be

available to explain or mitigate after the

guilt phase or whether [a defendant) should

testify during that phase to insure that

mitigating evidence reaches the finder of

fact,” and that a defendant “is forced to

3 The state argues that under the plain lan-

guage of § 565.006 appeiiant would be entitied

therefore, can in no way be abridged

565 006 provides

! At the conclusion of ai! trials upon an

inchctment of information for capital murder

heard by a jury, and after argument of coun

sel and proper charge from the court. the

jury shall retire to consider a verdict of guilty

or not guilty without any consideration of

guilty of any offense. in nonjury Capital

murds: cases. the court shall likewise first

consider a finding of guilty or not guilty with

Out any consideration of punishment, and by

ts verdict ascertain, whether the defendant

section | of this secuon, the court shall re-

sume the trial and conduct « presentence

hearing before the jury or judge at which

time the only issue shall be the determination

convictions and pleas. Only such evidence in

choose between his sentencing strategy and

testifying during the guilt phase in order

that the jury docs hear his story.” We fail

to see how the statute impinges upon appel-

lant's right not to. testify even if it does

indeed burden his decision whether, and

when, to testify. The facts in this case,

furthermore, do not support a theory that

the statute deprives appellant of effective

assistance of counsel! by restricting his stra-

tegic options? Appellant, convicted of cap-

posed In capital murder cases in which the

Geath penalty may be imposed by « jury or

judge sitting without « jury. the additiona!

Procedure provided in section 565.012 shail

followed. The jury. or the judge in cases

tried Dy # judge. shall fix & sentence within

the hits prescribed by law. The judge shali

impose the sentence fixed by the jury or

judge If the jury cannot, within » feasona

ble ume, agree to the punishment, the judge

shall impose sentence within the hmuits of the

law, except that. the judge shall in no in

Stance impose the death penalty when, in

cases tried by a jury, the jury cannot agree

upor the punishment

2 WM the trial court is reversed on appea!

because of error only in the Presentence

Hearing. the new trial which may be ordered

shall apply only to the :ssue of Punishment

(Emphasis added) in State v Moore, 615

SW2d 10% (Mo App 1981). the state argued

just the opposite—ie that the statute Provides

for a presentence hearing only when a defend

ant is charged with and convicted of Capatal

Mmurder—and prevasied Regardiess of whether

appetiant’s argument is meritorious, @ question

we expressly do not decide. the state's incon

MsieEncy gives us cause for concern Further

More. the state neglects to port out the

§ 565 006 was amended by H B 251. 8th Gen

Assem., ist Reg Sess . 1979 Molsws634 The

amended version became effective September

28, 1979. before the trial in this cave The

amendment changed subsection (1) to read as

follows

At the conclusion of all triels upon an indict

ment of information for capital murder heard

by @ jury. and after argument of counsel and

Proper charge from the court. the jury shall

retire to consider @ verdict of guilty or not

guilly without any consideration of purush

ment. in nonjury capital murder cases, the

court shall likewise first consider a finding of

guilty of not guilty without any consider ation

of punishment in each jury cCapeal murder

Case, the court shail not give instructions on

ony lesser included offense which could not

be supported by the evidence Presenicd in

the case

§ 565 006( 5). RSMo Supp 196! (emphasis add

€d) The amendment deicied the language of

-26-

»

»

ital murder, received a presentence hearing

and thus was given an opportunity to

present

to do so. In fact, appellant offered no

evidence at all at either the guilt or sen-

tencing phase of the trial.

{10} Both appellant's second and third

contentions concern the time between the

quilt and sentencing phases of the trial In

State v. Royal, 610 §.W.2d 946, 950 (Mo.

bane 1961), we rejected the claim that the

phases is insufficient for

a convicted defendant to prepere his argu-

. The ra-

tionale we applied in that ease applies with

equal force to appellant's third argument

than work « hardship on & defendant, the

bifureated system is ‘an extension of » high

order of the due the accused.” Id.

at 950. The United States Supreme Court

said in Gregg ’. 428 US. 153, 96

S.Cr. 2909, 49 L.Ed2d 859 (1976), that

{wJhen a human life is at stake and when

the jury must have information prejudi-

cial to the question of guilt but relevant

to the question of penalty in order to

impose & rational sentence, 8 bifurcated

system is more likely to ensure elimina-

tion of the constitutional deficiencies

identified in [Furman v. Georgia, 48 US

238, 92 S.Ci. 276, B L.Ed.2d 346 (1972) }

Id. at 191-92, 96 SCu at 2933-34. Appel-

lant concedes that “[a}rguably, the legisia-

ture need not have extended individualized

sentencing hearing? of the type established

by § 565.006" Doubtless the jury will be

less prone to impose 8 sentence under pas-

sion in a bifurcated system. in which there

ia at least some time in which it ean “cool

off.” than it would were it to impose the

635 SOUTH WESTERN REPORTER, 24 SERIES

sentence at the same time it determines

guilt.

Cc

{11,12} Appellant next contends that

the aggravating circumstance the jury

found in this case, that “{t}he capital mur-

der was committed by & person in the

lawful custody of a place of lawful

confinement,” § 565.012(2\9), is unconstitu-

tional because it subjects prisoners because

of their status as such to & more severe

penalty than it docs other members of soci-

ety.

Uniess a statute creates 8 classification

that burdens a suspect group oF impinges

upon a fundamental interest, “we will not

overturn [it] unless the varying treatment

of different groups or persons is 8° unrclat-

ed to the achievement of any combination

of legitimate purposes that we can only

conclude that the legislature's actions wer

irrational.” Vance Bradicy, 440 US. %,

97, 99 S.CL. 939, 942, 59 1. Ed.2d 171 (1979)

In short, “[uJnicss a classification trammels

fundamental personal rights or i drawn

upon inherently suspect distinctions such as

race, religion, or alicnage, our decisions pre-

sume the constitutionality of the statutory

discriminations and require only that the

classification challenged he rationally relat-

ed to « legitimate state interest " Frusl-

man v. Rogers, 440 US. 1,17, 9 SCt RST,

g98, 59 L.Ed.2d 100 (1979) (quoting City of

New Orleans v. Dukes, 4277 US. 27, WS, 9%

S.Ct 2513, 216, 49 LEd2d 511 (1976)

Prisoners have never been held to consti-

tute a suspect class Furthermore, it 1s

they whom society has deemed should be

deprived, to & significant degree, of their

liberty, and thus the classification here in-

volved cannot be said to impinge upon “fun-

« lesser inctuded offense and (hat under sub

eection (2). the language of which was un

tronale that the court of appeals articulated in

Moore, and we do not do to now Neuher do

we decide whether # would apply to the

amended version of § 565.006

@27-

a

d

le

le a i ee el ae Me ee: a ee ee a ae

STATE v. BOLDER

Mo. 682

Cite an, 635 S.W.24673 (Mo. 1962)

damental personal rights.” The rational re-

lationship standard is therefore the appro-

priate one by which to gauge the constitu-

tionality of § 565.012(2\9), and under this

test the statute passes muster. The United

States Supreme Court has noted that be-

sides the “two principal social purposes” of

capital punishment, “retribution and deter-

rence of capital crimes by prospective of-

fenders,” a third purpose “is the incapacita-

tion of dangerous criminals and the conse-

quent prevention of crimes that they may

otherwise commit in the future.” Gregg v.

Georgia, 428 U.S. at 183 & n.28, 96 S.Ct at

2923 & n2B The latter is one purpose

underlying § 565.012(2X9). In this case ap-

pellant was already serving a life sentence

for first degree murder. That sentence did

not deter him from committing a second

murder. The legislatere, in adopting

§ 565.012(2X9), reasonably could have con-

cluded that the death penalty is appropriate

when imprisonment already imposed does

not deter capital murder. The imposition

of capital punishment is rationally related

to the state's cbvicusly legitimate interests

in preventing crime and protecting other

persons, such as prison employees and other

inmates, with whorn prisoners come in con-

Lact.

{13} For this reason we also reject ap-

pellant's contention that the jury exceeded

the scope of its charge when, after finding

the aggravating circumstances that “the de-

fendant has » prior criminal conviction for

murder in the first degree” * and that “at

the time of the murder of Theron King the

defendant was in the [lJawful custody of a

place of confinement,”* it opined that it

“appears the life sentence [that appellant

was already serving) was no detcrant [sic]

to further crime.” The jury's excess verbi-

age was not, as appellant argues, an at-

tempt to find another aggravating circum-

stance. It was, rather, nothing more than

the jury's expression of the rationale under-

lying the statutory aggravating cireum-

stance that it already had found.

4 This is @ nonsistutory aggravating circum-

@ance that the jury could consider under

$ 5465 012(1M3)

D

Appellant argues that § 565.012 is uncon-

stitutional because (1) subsection (14),

which requires the sentencing authority to

consider “whether a sufficient mitigating

cireumstance or circumstances exist which

outweigh the aggravating circumstance or

circumstances found to exist,” impermissi-

bly places the burden on the defendant to

negate the aggravating circumstances; (2)

the jury is not required to find beyond a

reasonabic doubt that the aggravating cir-

cumstances outweigh the mitigating cir-

cumstances, and (3) the application of the

statutory aggravating circumstances in sul)-

section (2) creates a new crime for which a

defendant can be convicted without first

being charged

{14) Appellant's argument with respect

to the burden of proof is misconceived. The

existence of one or more aggravating cir-

cumstances not outweighed by the mitigat-

ing circumstances does not mean that, the

death penalty must be imposed automatical-

ly. The jury's finding that one or more

Statutory aggravating circumstances exist

is the threshold requirement that must be

met before the jury can, after considering

all the evidence, recommend the death sen-

tence. The jury cannot impose death if it

finds that the mitigating circumstances out-

weigh the aggravating circumstances, but

that situation is the only one in which the

punishment is mandated. Under no circum-

stances is the jury obliged to impose death

“The jury is not required to find any miti-

galing circumstance in order to make a

recommendation of mercy that is binding

on the trial! court, but it must find a

statulory aggravating circumstance before

recommending a sentence of death.”

Gregg v. Georgia, 428 US. at 197, 96 S.Ct

at 2936. Indeed, the jury was instructed in

Instruction No. 21 that “[e}ven if you decide

that a sufficient mitigating circumstance or

S& This is s statutory aggravating circumstance

§ 565.012(2M9), that the jury could consider

under § 565.012(1 1)

-28-

684 Mo.

circumstances do not exist which outweigh

the aggravating circumstance or circum-

stances found to exist, you are not com-

pelled to fix death as the punishment.”

[15] We do not believe, as appellant con-

tends, that the Constitution requires that

the jury find beyond a reasonable doubt

that the aggravating circumstances out-

weigh the mitigating circumstances. Guilt

must of course be established beyond a rea-

sonable doubt. In re Winship, $97 U.S. 358,

90 S.Ct. 1868, 25 L.Ed.2d 368 (1970). So

also must the statutory aggravating cir-

cumstance or circumstances upon which the

jury bases its recommendation of death.

§ 565.012(1X4). See Gregg v. Georgia, 47

US ai 196-97, 96 S.Ct. at 2036. The impo-

sition of punishment, however, is not a mat-

ter resolved by the determination of fact

alone. Jt is a more subjective process in

which “there [must} be taken into account

the circumstances of the offense together

with the character and propensiiies of the

offender.” Id at 189, 96 S.Ct at 2032

(quoting Pennsylvania ex rel. Sullivan

Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82

L.Ed. 43 (1937)). It suffices to say that in

Proffit v. Florida, 428 US. 242, 50-53,

257-58, 96 S.Ct. 2060, 2965-67, 2969, 49

L.Ed.2d 913 (1976), the United States Su-

preme Court thoroughly considered this

statutory balancing process and found no

constitutional infirmity. The Court stated

that

{while the various factors to be con-

sidered by the sentencing authorities do

not have numerical weights assigned to

them, the requirements of Furman ere

satisfied when the sentencing authority's

discretion is guided and channeled by re-

quiring examination of specific factors

that argue in favor of or against imposi-

tion of the death penalty, thus eliminat-

ing tota! arbitrariness and capriciousness

in its imposition

The directions given to judge and jury

by the statute are sufficiently clear

and precise to enable the various aggra-

vating circumstances to be weighed

agsinst the mitigating ones. As a result,

6 Cwrently, 17 men are on death row im the

635 SOUTH WESTERN REPORTER, 2d SERIES

the trial court's sentencing discretion is

guided and chaancled by a system that

focuses on the circumstances of each indi-

vidual homicide and individual defendant

in deciding whether the death penalty is

to be impoaed.

Id. at 258, 96 S.Ct. at 2969.

{16} We therefore also reject appellant's

argument that the application of the statu-

tory aggravating circumstances creates 8

new crime for which appellant can be oon-

vieted without first being charged. Appel-

lant argues that capital murder for which

the death penalty can be imposed is “a

crime separate from capital murder with

the penalty of life in prison and fifty years

without parole.” That analysis is flawed

The crime—capital murder—is the same in

both instances. The existence of aggravat-

ing or mitigating circumstances relates not

to guilt but to the punishment therefor

E

Appellant argues that § 565.014 is uncon-

stitutions! (1) because the lack of similar

cases in Miascuri gives this Court no stan-

dard by which to determine under subscc-

tion (3X3) “[w]hether the sentence of death

is excessive or disproportionate to the pen-

alty imposed in similar cases, considering

both the crime and the defendant”; and (2)

because subsections (3) and (5) do not re-

quire this Court “to consider all murder

cases wherein the defendent had, at any

point in the proceedings, been charged or

chargeable with capital murder™ ans there

therefore is no adequate standard of re-

view

{17} Appellant's argument with respect

to the first contention is that “only seven

persons in the State of Missouri have been

assessed the death penalty and in no case

are the facts similar to those in the case at

bar.”* This argument presupposes that we

can consider only those cases in which the

death penalty has been imposed under the

law effective May 26, 1977. Such is not the

case. Our concern is that there be “even-

handed, rational, and consistent imposition

Missouri State Penttentiary

-29-

8

STATE v. BOLDER

Mo. 685

(Cite as, 635 S.W.26673 (Ma 1982)

of death sentences under law.” Jurek v.

Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958,

49 L.Ed.2d 929 (1976). Our inquiry would

be unduly slanted were we to only

those cases in which the death penalty has

been imposed. We therefore can consider

as similar “[\Jhose cases in which both death

and life imprisonment were submitted to

the jury.” State v. Mercer, 618 S.W.2d 1,

11 (Mo. banc), cert. denied, —— U.S. ——,

102 S.Ct. 432, 70 L.Ed2d 260 (1981) See

Gregg v. Georgia, 428 U.S. at 204 0.56, 96

S.Ct. at 2939 n.56. Included are those cases

that have been affirmed on appeal, State v.

Mercer, 618 S.W.2d at 11, and those that

have been reversed if the reversal was pred-

icated upon the disproportionality of the

sentence, e.g, State v. Mclivoy, 629 S W.2d

SSS (Mo. banc 1982}, We may also consider

eases pending before this Court in order to

determine what penalties juries have im-

posed in factually similar situations See

State v. Williams, 392 So.2d 619, 626 (La

"1980), State v. Williams, 205 Neb 56. 75,

287 N.W.2d 18, 29 (1979), cert. denied, 449

US 891, 101 SCt 255, 66 LEd2d 120

(1980), Appellant's argument, carried to its

logical conclusion, would mean that our cap-

ital punishment statute was unconstitution-

al from the instant it became effective be-

cause at that point there were no similar

cases for comparison.’ We cannot sccept

this rationale.

[18] Neither do we accept the argument

that we must consider all murder cases in

which the defendant had at some point in

the proceedings been charged or chargeable

with capital murder. The Supreme Court

in Gregg rejected an analogous claim of

unconstitutionality based on “the opportu-

nities for discretionary action that are in-

7. The United Sistes Supreme Court has found

mo constituuona! infirmity in the companson of

cases decided under old capital punishment

a This was implick in our decision in State v

Mercer, 618 SW246 1 (he banc 1981) in

herent in the processing of any murder

case” because “[njothing _. Suggests that

the decision to afford an individual defend-

ant mercy violates the Constitution.” 428

US. at 199, 96 S.Ct at 2937. Relevant

cases for a review of the *ppropriatencss of

the sentence are those in which the judge or

jury first found the defendant guilty of

capital murder and thereafter chose be-

tween death or life imprisonment without

the possibility of parole for at least fifty

years.* Our comparison therefore need not

include cases such as those in which the

state chose not to charge a defendant with

capital murder, the state agreed to a plea

bargain whereby a defendant pled guilty to

& lesser charge, the conviction was for an

offense less than capital murder, or the

state waived the death penalty.

F

{19} Appellant's final challenge to the

constitutionality of the system is that the

bifurcated capital murder procedure denies

him equa! protection of the laws. His argu-

ment is that he is charged with capital

murder, « decision wholly within the prose-

cutor's discretion, and thus is subject to the

bifurcated process; that his prior convic-

tions and other aggravating circumstances

thus can be used against him; that the trial

court is required to instruct the jury on

second degree murder and manslaughter as

lesser offenses included within capital mur-

der, that defendants charged with secon!

degree murder or manslaughter are not

subject Lo the bifurcated process and cannot

have prior convictions and aggravating cir-

cumstances used against them, and that

therefore appellant bears a greater burden

than do defendants charged with second

degree murder or manslaughter

Mercer a majority of the Court rejected Judge

Seiler's argument im dissent that ~ sarrular

cases” within the meaning of § 565.0143)

encompasses “all cases in which the state

-30-

.

This argument is spurious. Appellant

was convicted of capital murder, not second

degree murder or manslaughter. He makes

no contention that the capitzi murder sen-

tencing procedure is applied differently

‘among defendants convicted of that of-

fense. Whether defendants charged with

capital murder but convicted of a lesser

offense are denied equs! protection of no

concern to him whatsoever’ His equa! pro-

tection rights have not been abridged.

IV

Appellant next makes three arguments

concerning questions the prosecutor asked

veniremen about their views on the death

penalty and the trial court's dismissal of

one venirewoman for cause.

{20} Appellant first contends that the

trial court commitied consiiiuiional error

when it overruled his motion to prohibit the

prosecutor from asking jurors whether they

objected to ag opposed capita! punishment.

He argues that allowing the state to chal-

lenge for cause or peremptorily strike ve-

niremen opposed to the death penalty will

produce a jury that is conviction, rather

than death penalty, prone. We rejected

this argument in State v. Mercer, 618

S.W.2d at 7-8, and State v. Mitchell, 611

§.W.2d 223, 229 (Mo. banc 1981). Neverthe-

less, appellant, citing Griggs v. Mabry, 637

F.2d 525 (8th Cir. 1980), requests for the

first time on appeal that he be granted an

evidentiary hearing to show that his death-

qualified jury was biased toward conviction

and that he thereby was prejudiced. The

Supreme Court in Witherspoon v. Iilinois,

$91 U.S. 510, 517, 88 S.Ct. 1770, 1774, B

L.Ed.2d 776 (1968), noted that evidence is

“too tentative and fragmentary to establish

that jurors not opposed to the death penalty

tend to fevor the prosecution in the deter-

mination of guilt.” Since Witherspoon sev-

eral scholars have conducted empirical stu-

dies in an atiempt to prove or disprove the

® We intimate no view on whether all defend

ants charged with, or only those convicted of,

capital murder are subject to the bifurcated

procedure. See nate 3 supra

635 SOUTH WESTERN REPORTER, 2¢ SERIES

hypothesis. As we recently noted, however,

“(t}he studies . are not conclusive.”

State v. Mercer, 618 S.W.2d at 7-8. Since

we have before us neither evidence of nor

allegation of other evidence of jury bias, we

deny his request for an evidentiary hearing.

{21} Appellant next argues that the tri-

al court violated Witherspoon in overruling

his motion in limine because the prosecutor

thus was allowed to ask questions not aimed

at exposing an “unmistakably clear predis-

position or irrevocable opposition” to capital

punishment that “makes it impossible for a

juror to make « finding of guilt regardless

of the evidence presented.” Witherspoon

applics to the answers elicited from venire-

men rather than the questions asked on voir

dire. Furthermore, nothing in Witherspoon

indicates that a venireman may be excused

for cause only if his view of the death

penalty would prevent him from ever re-

turning a verdict of guilty. The Supreme

Court in Witherspoon stated, rather, that

veniremen may be excused for cause if they

make “anmistakably clear that their

attitude toward the death penalty woul!

prevent them from making an impartial

decision a3 to the defendant's guilt.” 39)

US. at 522-23 nm 21, 8 S.Ct. at 1776 77

n.21 (some emphasis added). Sec also Ad-

ams v. Texas, 48 US. 38, 45, 100 S.Ct

2521, 2526, 65 L.Ed.2d 581 (1980) (“[t}he

State may insist that jurors will con-

sider and decide the facts impartially”)

{22} We also reject appellant's third

contention that the trial court erred in ex-

cluding for cause one member of the jury

panel. After venirewoman Bealmer indi-

cated her scruples against capital punish-

ment, the following occurred

{PROSECUTOR} Would the fact that

the death penalty is there, would that

affect your ability to judge the facts?

VENIRE] WOMAN) BEALMER

Ye"

1@. The entire colloquy was as follows

(PROSECUTOR)

The judge told you the charge here is mur

Ger, the charge of capital murder that has

been lodged against the defendant Martsay

eSia

(Emph.

court,

sustain

cause.

The qu

was ur

ward t

could n

impart

Apjn

erred 3

and in

and pt

guard |

not giv

appear:

Live jur

{23}

Atac

orally |

interval

males

pointer

pellant

dence |

denied

would

tial wil

ble for

We ca

‘s 2

EFES

ba]

o

QF7ERS IEE

as

“"y

(Emphasis added.) Thereafter the trial

court, without objection from appellant,

sustained the prosccutor’s challenge for

cause. We find no Witherspoon violation.

The question was specific, and the answer

was unequivocal. Because of her view to-

ward the death penalty, the venirewoman

could not have determined appellant's guilt

impartially.

v

Appellant contends that the trial court

erred in refusing to grant « continuance

and in forcing him to go to trial in chains

and prison clothing and with an armed

guard at his side. He argues that he was

not given time to calm dow: and that his

appearance in such a condith prejudiced

the jury against him.

{23} Appellant's trial began May 5, 1980

At « conference before voir dire, appellant

orally requested @ continuance in order to

interview four potential witnesses, ali in-

nates in the penitentiary. Appellant's ap-

pointed counse! stated that he had told ap-

peiiant thai sppeliani would preseni av evi-

dence until at least May 6. The trial court

denied the continuance and indicated that it

would issue subpoenas for the four poten-

tial witnesses so that they would be availa-

ble for interviewing the morning of May 6

We cannot say that the trial court abused

Bolder. | indicate to you right now we mend

to seek the death penalty on the case is

there anyone here on the first row who be

cause of ether religious of moral scruples

against the death penalty you don't think you

would be able to find someone guilty on the

charge of capita! murder?

VENIRE[WOMAN] BEALMER Yes

[PROSECUTOR] Let me ask you again.

you indicate that because of scrupies egainst

the death penalty you don't beleve you could

find someone guilty of capital murder?

VENIREIWOMAN) BEALMER 1! don’

think so

(PROSECUTOR) Wf the State of Missou

the issue is presented to the jury the

jury stil has to assess the death penalty or

ife imprisonment. Kaowmng that, 60 you

think « would interfere with your sbility to

judge the fects on the guilt stage of capital

STATE v. BOLDER Mo. 687

. Clee as, 635 S.W 26673 (Mo. 1962)

the sound discretion it has in determining

whether to grant a continuance in a crimi-

nal case. See State v. Oliver, 572 S.W.2d

440, 445 (Mo. banc 1978).

(24,25) The trial court also has discre-

tion whether to order a defendant re-

straincd whenever it is necessary to main-

tain order and security in the courtroom

Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct

1057, 1060, 25 L.Ed.2d 853 (1970); State v.

Richaris, 467 S.W 2d 33, 38 (Mo.1971). Giv-

en appellant's recalcitrance, the trial court

was justified in ordering appcilant bound

Appellant, upset with the trial court's re-

fusal to grant the continuance and to re-

move appellant's appointed counsel, over-

turned a library table in the pretrial confer-

ence and scuffied with guards approximate-

ly five minutes; knocked over his chair in

the courtroom while attempting to rise and

had to be sulxiued by guards; resisted Le-

ing placed in his chair and required four

guards to hold him; and continually assert-

ed that he would not remain in the court-

room. The ivial court repeatedly wii ap

pellant that he would not be bound if he

promised to behave. He did not. Appel-

lant contends, nevertheless, that he should

not have been shackled past the first day of

trial. Given appellant's actions, and the

fact that appellant had been convicted of

VENIRE[ WOMAN] BEALMER Do I have

to answer yes or no?

[PROSECUTOR] You have to answer as

best you can and as truthful as you can

VENIRE[WOMAN] BEALMER Well that

is bad. I don't like death. bur —

(PROSECUTOR) Let me ask you this Do

you think, knowing that if your verdict is

based on the fact that the death penalty is

there in the background. do you think that

would interfere with your ability to pudge the

facts, would you impose # burden of proof

greater on me if the death penalty—

[DEFENSE COUNSEL) 1 object, he is be

gnning (o argue with the juror

THE COURT Sustained

(PROSECUTCR) Would the fact that the

Geath penalty is there. would that affect your

ability to podge the facts?

VENIRE[WOMAN] BEALMER Yes

(Emphasis added )

-32-

688 Mo.

one murder and was on trial for another,

the trial court could reasonably have be-

lieved that another disturbance might be

forthcoming if appellant were not bound.

Furthermore, there was no evidence of

prejudice." The trial court did not abuse

its discretion.

[26] Appellant was not compelied to ap-

pear before the jury in identifiable prison

clothing. See Estelle v. Williams, 425 US.

601, 96 S.Ct 1691, 48 L.Ed2d 126 (1976).

Appellant was offered civilian clothing, but

he said there was none his size and that he

was “not going to put no small clothes on.”

At another point before the trial the court

asked appellant whether he wished to put

on civilian clothing before he went into the

courtroom, and appellant, nonresponsive,

replied, “I am not going in the courtroom #

Appellant at no time objected to wearing

prison clothing during the trial “[T)he

failure to make an objection to the court as

to being tried in such clothes, for whatever

reason, is sufficient to negate the presence

of compulsion necessary to establish a con-

stitutional violation.” Id. at 512-13, 9

S.Ct. at 1696-97. Appellant cannot now be

heard to complain.

vi

Appellant next argues that the trial court

erred in admitting State's Exhibit No. 18,

the knife allegedly used to stab Theron

King, and State's Exhibit No. 9, « photo-

graph thereof. He contends that there was

no evidence tending to prove that the knife

had ever been in his possession or that it

had been used to inflict the deadly wounds.

it. The jurors questioned under oath during the

hearing on the motion for new trial stated that

they had not discussed the facts that appellant

wes shackled and an armed guard wss present

and that those fects did not influence their

decision The four venirewomen who indicated

on voir dire that the presence of the guard

would affect their impartiality did not serve on

the jury

12. Dr. Kwei Lee Su, « Missouri State Highway

Patrol forensic serologist, testified that Theron

635 SOUTH WESTERN REPORTER, 24 SERIES

(27, 28] Demonstrable evidence is admis-

sible “if it throws any relevant light upon a

materia! matter at ixsuc,” State v. Murphy,

592 S.W.2d 727, 730 (Mo. banc 1979), or if it

“tends to establish any fact in issue or ..

aid the jury in any way in arriving at a

correct verdict,” State v. Holmes, 609

§.W.2d 132, 136 (Mo. banc 1980). “Articles,

instruments and weapons that have a tend-

ency to explain the manner in which

crime was committed that are found at or

near the scene of the crime subsequent to

the commission of a crime are gencrally

admissible.” State v. Neal, 591 S.W.2d 178,

180 (Mo.App.1979). The trial court has dis-

eretion whether to admit or exclude demon-

strable evidence. State v. Murphy, 592

S.W.2d at 730

{29-31} It is true that none of the wit-

nesses who testified at trial ever saw the

knife in appellant's possession. Neverthe-

less, there is evidence linking appellant to

the knife and linking both ajpellant and the

knife to the attack. Appellant was seen

standing over King and making stabling

motions toward his stomach. Appellant

was later found in the 5 A & B building

wiping blood off his hands. The knife was

found in a room off the hall in 5 A & B

building that was fiftcen to twenty fect

from the doors appellant was seen entering

The stec! doors to the room in which the

knife was found were padiocked, but the

geven-eighths inch space between the floor

and the bottom of the doors was large

enough for the knife to slide through

There were no detectible fingerprints on

the knife, but the knife when found was

still wet with blood that matched the blood

of the victim, and the blood on appellant's

clothes matched that of the vietim.? This

also testified that King’s blood contained factor

PGM) PGMi. an enzyme, is inherited indepen

dently of the ABO system and thus is 8 further

discriminating genetic factor See State ¥

Rolls, 389 A226 624 (Me 1978) The bieod on

appellant's clothing was type © and contained

factor PGMi «Dr Kwei was able to determine

that the blood on the knife wes type 0, but

because of the small quantity she was unable

to test 4 for factor PGMi Appellant argues,

therefore, that “jtjhe most this knife could rep

resent is only that there are knives in the pris

otBu

2a eee @ ste eo

—_——_—-

ee

STATE v. BOLDER Mo. 689

Cite as, 635 SW 24673 (Me. 1962)

evidence linked appellant with the knife

sufficiently to justify admission of the knife

and the photograph into evidence.” The

trial court did noi abuse its discretion.

vu

Appellant contends that the trial court

erred in overruling his motion to suppress

the oral statement that he made to Investi-

gator Lock the afternoon of the stabbing.

He claims (1) that the oral statement was

made after he had refused to make a writ-

ton statement and after he had already cut

off interrogation with one officer; (2) that

he made the statement under duress and

coercion and was not advised of his right to

remain silent; and (3) that he made no

knowing and intelligent waiver of his right

to remain silent and that the trial court

failed to find that his statement was volun-

tary

Appellant's view of the facts is contrary

to the uncontradicted testimony elicited at

the suppression hearing. Appeliant bascs

his first argument upon the statement in

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602. 16 L.Ed. 2d @B4 (1966), that

{o]nce warnings have been given, the

subsequent procedure is clear. If the in-

dividual indicates in any manner, at any

Ume prior to or during questioning, that

he wishes to remain silent, the interroga-

tion must cease. At this point he has

shown that he intends to exercise his

Fifth Amendment privilege{.}

Id. at 473-74, 86 S.Ct at 1627 (footnote

omitted) Yet the uncontradicted testimo-

ny showed that when Investigator Lock

told appellant that he wanted to talk with

him about the stabbing, appellant replied

that he wanted to talk with Lt Looten

on with the same blood type as Theron King. a

blood type which is experienced by approx:

mately 45% of the United States population “

This objection of remoteness, however, goes to

the weight to be accorded the evidence rather

than to its edrmissibility, because this evidence

iS Hot SO remote that & is entirely without

materiality. State v. Feger. 340 S.W2d 716,

725-26 (Mo 1960)

13. Appellant makes no argument o4 appeal

that admission of the photograph was cumuls

aSée

Appellant at that point would not speak

with Investigator Lock, but his statement

cannot be construed as an indication that he

desired to remain silent. He wanted in-

stead to speak with another officer.

{32} Appellant was advised of his rights

and made a knowing and intelligent waiver

of his right to remain silent. After speak-

ing with Lt. Looten, appellant said he was

ready to make a statement, and Investiga-

tor Lock thereupon was summoned hack

into the room. Appellant was read his

rights, said he understood them, and signe:

the waiver. There was nw coercion by the

authorities, Lt Laoten testified that ajyw'-

lant was not shackled during Vie interruga-

tion, and Investigator Lock testified that no

promises were made and that appellant was

hot beaten, struck, or otherwise threatened

or coerced.” Appellant's refusal to make «

written statement has in this situation no

bearing on the voluntariness of his ora!

statement. Investigator Lock testified that

appellant “said he would not [make @ writ.

ten statement], he did not like to give writ-

ten statements and he just as soon tu!

Lieutenant Looten and I what occurred and

leave it at that.” The trial court in overrul-

ing the motion to suppress implicitly found

that the statement was voluntary, see State

v. Royal, 610 S.W.2d at 949, and the record

supports that finding. The trial court did

not err in overruling the motion to sup-

press

Vill

Section 565.014(1) mandates that we re-

view the death sentence when it is imposed

Having found no error among appellant's

assignments of error, we turn to a consider-

ation of the punishment.

Section 565.014(3) provides

tive and thus error We therefore do not ad

Gres* this question

14. Appeliant testified for the first ume at the

hearing on hus motion for new trial that Invest:

Bator Lock slapped him approximately five

Umes, struck him four times with @ stick or

wooden table or chair leg. and cut his hand

Gurimg the interrogation He also testified

however, that his “hand got cut on the fence or

wall”

With regard to the sentence, the supreme

court shall determine:

(1) Whether the sentence of death was

imposed under the influence of passion,

prejudice, or any other arbitrary factor;

and

(2) Whether the evidence supports the

jury's or judge's finding of a statutory

aggravating circumstance as enumerated

4n section 565.012; and

(3) Whether the sentence of death is

excessive or disproportionate to the pen-

ally imposed in similar cases, considering

both the erime and the defendant

{33} Our review of the entire record

convinces us that the sentence was not im-

posed under the influence of passion, preju-

dice, or any other arbitrary factor

Section 565.012(2K9) provides as a statu-

tory aggravating circumstance that “[t}he

capita) murder was committed by @ person

in ... the lawful custody of a ... place of

lawful confinement.” The jury % found.

There is no contention in this case that

appellant was not an inmate at the Missouri

State Penitentiary at the time of the mur-

der.

Our final consideration ie whether the

death penalty, taking into account both the

crime and the defendant, is excessive or

disproportionate to the penalty imposed in

similar cases. Since the enactment of our

current capital murder statute, § $65.001,

this Court has reviewed and affirmed only

two death sentences. State v. Newlon, 627

S.W2d 606 (Mo. bane 1982), petition for

cert. filed, US.L.W., (U.S. May 5, 1982) (No

81-6660), State v. Mercer, 618 SW2d |

(Mo. banc), cert. denied, — US. ——, 102

S.Ct. 482, 70 L.Ed 2d 260 (1981). We have

reversed one death sentence because of its

disproportionality. State v Melivoy, 629

16%. We consider these cases only to ascertain

what punishment juries have imposed in factu-

ally sumdlar cases in so doing we intimate No

view concerning their ultumate dsposrson

presents @ unique problem

mandatory imposition of the death penalty

635 SOUTH WESTERN REPORTER, 2d SERIES

S.W.Sd 333 (Mo. banc 1982). In addition to

Newlon and Mercer, we have affirmed

twelve capital cases in which the choice of

death or life imprisonment without psmsibl-

ity of parole for fifty years was submitte!

to the jury. State v. Greathouse, 627

S.W.2d 592 (Mo.1982), State v. Bostic, 625

§.W.2d 128 (Mo.1981); State v. Thomas, 625

S.W.2d 115 (Mo.1981); State v. Emerson,

623 S.W.2d 252 (Mo.1981), State v. Turner,

623 S.W.2d 4 (Mo. bane 1981), State v

Jensen, 621 S.W 2d 263 (Mo.1981); State +

Baskerville, 616 S.W.2d 829 (Mw.19%1)

State v. Mitchell, 611 S.W.24 224 (Mo, bane

1081); State v. Williams, 611 S Wal

(Mo. bane 1981), State v Royal, 610 8.W 2d

946 (Mo. banc 1981); State v Borden, @5

S W 2d 88 (Mo. banc 1980); State v. Downs,

$93 S.W.2d 535 (Mo. 1980)

(34) This is the first case we have re-

viewed in which the jury imposed the death

penalty after finding as 8 statutory aggra-

vating circumstance that the defendant was

lawfully confined at the time of the mur-

der. Two other such cases are pending

before us, and in both of those the jury

imposed the death penalty. State v. Show,

No. 62679 (Mo. banc argued May 17, 1982),

State v. Trimble, No. €2522 (Me bane ar-

gued Sept. 15, 1981)" Alter considering

these cases and those cited above, we con-

clude that the death penalty imposed in this

case is neither cacessive nor disproportion-

ate to the punishment imposed in similar

cases. The life sentence that appellant

already serving for first degree murder did

not deter appellant from committing still

another murder. The imposition of yet an-

other life sentence would serve no purpose

other than to signal that there is no real

cost for prvoncrs who kill while in confine-

ment.”

Roberts v. Louisiana, 428 US 325, 34 09, 96

S.Ct 3001, 3006 n9, 49 LEd2d 974 (1976)

Greag v. Georgia, 428 US 153, 186, 96 SCI

2009, 2931, 49 L Ed.2¢ 859 (1976) See Locket!

¥ Ohio, 438 U.S 586. 604 0.11, 96 SCi. 2954,

2064 nil, 57 LEd2d¢ 973 (1978), Roberts »

Louisiana, 43) US. 633, 637 9.5, 97 S.Ct. 1995

1905 a5. 52 L Ed2¢ 637 (1977), Woodson +

North Carolina, 428 US. 280, 287 1.7, 292-93

-35-

el

BIA VY. tare —— wee

Cite a6, 635 S.W.26 673 (Mo. 1962)

The judgment is affirmed.

Date of execution set for August 20,

1982.

DONNELLY, C. J., and RENDLEN,

MORGAN and HIGGINS, JJ., concur.

SEILER, J., dissents in separate dissent-

ing opinion filed.

BARDGETT, J., dissents and concurs in

scparate dimenting opinion of SEILER, J.

SEILER, Judge, dissenting

1 respectfully dissent as to the review of

the death sentence. In my opinion the sen-

tence of death is excessive and dispropor-

tionate in this case.

As the pvincipal opinion points out, this is

the first case we have reviewed in which

the jury imposed the death penalty sfter

finding as a statutory aggvavating circum-

stance that the defendant was lawfully con-

fined at the time of the murder. The prin-

cipal opinion, however, takes into considera-

tioh two other such cases pending before us,

State v. Shaw, No. 62679 and State v. Trim-

ble, No. 62523, but says nothing as to their

facts, an aspect which is essential in deter-

mining whether they are similar to the

present case. Based on the briefs and the

oral arguments before this court in these

two cases, there was evidence in the record

supporting the verdicts as follows

In Trimble, the defendant was in jail,

charged with sodomy, rape, sexual abuse in

the first degree and kidnapping of two nine

year old girls, He was a large man, six

feet, one inch in height, weighing 210

pounds. The victim, whom | will refer to

only by his first name, Jerry, was age 20,

five feet, ten inches in height, weight 145

pounds, quiet, shy, mentally slow, and

“scared to death”. He was in jail on 8

charge of auto theft. Trimble would pinch,

tease, and harass Jerry and when Jerry was

askeep would put lighted matches between

his tocs. Trimble declared he wanted Jerry

as his “punk”, ie, homosexually; further,

that he did not want to go to prison on the

charges involving the two young girls be-

n.25, 96 S.Ct. 2978, 2963 n.7, 2985 125, 49

cause other prisoners did not like persons

who committed crimes of that kind and to

avoid this problem he intended to commit a

capital murder.

He forced Jerry to don « bra, punched

him, and repeatedly forced him to submit to

oral and anal sex acts, forced him to kiss

others, and to display a rag which had been

stuffed in his anus, burned initials into his

arm, referred to him an his “woman” and

foreed Jerry to write « suicide note to his

parents. Later Trimble gagged Jerry with

a towel, told him they were going to play

“hangman's game”, looped a knotted towel

around his neck, set his knees against Jer-

ry's back and proceeded to choke the victim

to death over a period of fifteen minutes,

breaking one of the neck vertebrac in the

process. Trimble then attempted to make

the death appear as « suicide, and forced

the other jail inmates to agree to tell the

guards it wax « suicide on penalty of the

same thing happening to them

In Shaw, the defendant, serving a life

sentence for first degree murder, intended

to kill one of the guards, officer Clinton

Wyrick, Use uncle of the warden. Shaw

entered the vegetable room, seized two

butcher knives, and, without warning,

plunged one into the side of the officer

(Farrow) who was in charge of the knives,

killing him (Farrow died within the hour

from loxs of blood). Shaw then went in

search of officer Wyrick, found him in the

commissary, attacked Wyrick with both

butcher knives, the attack lasting 30 to 45

seconds, with numerous wounds on Wyrich’s

arms, chest and stomach. Wyrick took Uhir-

teen months to recuperate

Any murder is serious and reprehensille

but the munier in the present case i hanlly

comparable in viciousness or extremes to

the murders in the Trimble and Shaw cases

The main similarity is that the instant cam

also occurred in a place of confinement. If

the murder in the present case had occurrer

in a taverr, or on 8 parking lot or elsewhere

outside the prison walls, by someone not in

confinement, there would have been no rva-

L.Ed 20 944 (1976)

~~" Ss

692 Mo.

sonable likelihood, in my opinion, of the

prosecutor being able to obtain a capital

murder conviction, much less the death pen-

alty. It would work out as a second degree

murder case.

In addition to the Trimble and Shaw

cases above, the principal opinion considers

the two cases where the death sentence has

been affirmed (Newlon and Mercer), one

case where the death sentence has been

reversed because of disproportionality

(Melivoy), and twelve capital cases where

the jury affixed punishment at life impris-

onment without possibility of parole for fif-

ty years rather than death.

This is like trying to compare apples and

oranges. None of the twelve cases involved

persons in lawful confinement. Without

exception the killings in the twelve cases

“were far more extreme and horrendous

than here and, finally, even so in none of

the twelve was the death penalty inflicted.

To the extent the eases are comparable they

demonstrate that the death penalty in the

present case is excessive and disproportion-

ate.

The same is true of the killings in the

Newlon, Mercer and Mclivoy cases. None

involved persons in confinement and each

of those killings is far more extreme and

horrendous than that in the present case,

yet even in these instances, in one case—

Melivoy —ihe death penaliy was declared

excessive and disproportionate. If that

were true in Mcllvoy, it certainly w true

here.

The rca! rationale of the principal opinion

lies in the belief that anything jess than

death for this defendant would be no more

than a slap on the wrist, as he is slready

serving a life sentence for first degree mur-

der. This assume, that this particular de-

fendant would aciually have served for life

under his first degree murder charge, an

assumption which has no factual basis

It is common knowledge that today “life”

imprisonment is a misnomer! Only s small

percentage of inmates with life sentences

1. According to the 35th Annual Report of the

Missouri Board of Probation and Parole 5

635 SOUTH WESTERN REPORTER, 24 SERIES —

serve for life. Most inmates in the peniten-

tiary ere discharged, either because they

have completed their sentence or (and this

makes up the majority of the cases) because

they are paroled. Of those sentenced to life

imprisonment who are paroled, the average

length of time served ir prison is some-

where between fifteen and sixteen years

It is much different, of course, with re-

spect to a capital murder life sentence, as

that is for life without possibility of parole

for fifty years. A capital murder defend-

ant under that sort of life uentence knows

that he must serve a minimum of fifty

years. Not so, however for the inmate

serving the ordinary type of life sentence

Defendant was sentenced to life impris-

onment in 1974. Although he stabbed in-

mate King in 1979, it does not follow that

until that time he had not conducted him-

self in accordance with the prison rules and

regulations and had caused no trouble

There is nothing in the record to the con-

trary. He may have been one of those

serving a life sentence who otherwise would

have been paroled in due course. How can

it be said then that the imposition of anoth-

er life sentence upon him, this time without

possibility of parole for fifty years, amounts

to no more than a signa! “that there is no

real cost for prisoners who kill while in

confinement” and that nothing less than

death amounis to more than a slap on the

wrist?

There is no evidence before us to support

\de assumption that only the death sentence

could serve as a deterrent to this particular

defendant or others in his class. I am un-

willing to make the assumption which the

principal opinion has to make in order to

affirm the defendant's sentence of death

The principal opinion uses the rational

basis test to uphold the constitutionality of

§ 566.012.2(9) In order to use this test, it

must first conclude that the statute dows

not impinge on “fundamental personal

rights” because society has already deprived

prisoners of liberty. I cannot agree with

this analysis. Because « person is impris-

(1980 81). “Sooner or tater, 96%, of all prison

ers are released”

=,

TESSERTEERIFRIRTSRESES ELF DEE SERESS

@SARGQeLE RP ETPRRA

3

Ee a ee Ree ee

_—

STATE v. BOLDER Mo. 693

Cue as, 635 $.W 24673 (Mo 1987)

oned, whether for life or for a short period

of time, does not mean that that person has

lost his “fundamenta! personal right” in life

itself. The appropriate standard of review

of this classification is the strict scrutiny

test because the statute does trammel fun-

damental personal rights. Under this *«1.

we should look at the state's interest, dever-

mine whether it is compelling, and then

determine if the statute impinges on the

fundamental personal right in the least re-

strictive manner. See generally, Shapiro v.

Thompson, 394 US. 618, 89 S.Ct 1322, 22

L.Ed2d 600 (1969); L. Tribe, American

Constitutional Law ch. 16 (1978). Under

this analysis, this aggravating circum-

stance, § 565.012. 219), would be unconstitu-

tional because it is overinclusive. It docs

not differentiate between those who have

nothing more to lose for a killing in prison

unless they receive the death penalty and

those who are not in that class.

Lalso point out that the principal opinion,

as well as § 565.012. 2/9) itself, is overinclu-

sive. It lumps everyone in prison into the

same category, whether there on a short

sentence, such as a two year minimum, or

there on & sentence which because of time

already served will be compieted in a short

time or terminated by parole in a reasona-

ble time. There are many prisoners to

whom the penalty of further imprisonment

under the capital murder statute, involving

as it does life imprisonment without poasi-

bility of parole for fifty years, would be the

strongest kind of deterrent’ Yet the justi-

fication used by the principal opinion for

affirming the death penalty is that to do

otherwise means there is no real cost for

prisoners who kill while in confinement

The facts of real life are otherwise

2. i would be different, of course. for a capital

murderer who is already under « itfe sentence

without possibilty of parole for fifty years. but

that is not Gus case and the statute dors not so

inet nsetf

ht @ my understanding that the present popu-

lation of thy state penitentiary im Jefferson City

is apprommmately 1,900 to 2.000 and that of

these approxmmately 80 to 85 immates are serv.

ing 8 capital murder bfe sentence without pos

sibilay of parole for fifty years. Wf this group

-_"

ON MOTION FOR REHEARING

PER CURIAM.

{35} Appellant in his motion for rehear-

ing contends that the trial court erred in

failing to instruct the jury on first degree

murder as a lesser included offense. There

was no objection at trial to the failure to so

instruct the jury, and appellant did not

raise the point in his motion for new trial.

It is raised here for the first time in appel-

lant's reply brief, but it attempts to raise a

new matter rather than reply to matters

raised in the state's brief. Such is imuer-

missible. State v. Brown, 502 S.W.Sd 295,

306 (Mo.1973), cert. denied, 416 U.S. 973, 94

S.Ct. 1999, 40 L.Ed. 2d 562 (1974).

{36} Appellant argues that we should

review the point for piain error. Rule 24 -

1ah). After careful consideration we aun.

cade thai ihere has been no “manifest in-

justice or misca- ye of justice,” id, that

would neccssitak reversal. The trial court

instructed the jury on second degree mur-

der and manslaughter, and the jury thus

had the opportunity to convict appellant of

@ lesser offense. See Beck v. Alabama, 447

U.S. 625, 100 S.Ct. 2382, 65 LEd.2d 392

(1980) Moreover, the evidence in this case

would not support an instruction on first

degree (felony) murder because none of the

five enumerated felonies, § 565.003, RSMo

1978, was present. Due process therefore is

not abridged. Hopper v. Evans, US

~~~, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982)

The motion for rehearing is overruled

increases On the average of 20 per year, there

wil! be around 1.000 such inmates in the pens

tentiary before any one of them is eligible for

parole | think 4 ts to this class of inmates that

the suggestions wtuch the principal opimon at

tributes to the United States Supreme Court

that en intentional killing by an inmate might

justify mandatory imposition of the death pen

aly might apply To repeat. the present is not

such « case

“a

. IN ‘Wl:

SUPRLIME COURT Of “HSCOURI

’

STATE OF MISSOURI,

Pilaintiff-Resnpondent,

)

)

)

)

vs. ) Case lo. 62362

)

MARTSAY BOLDER, )

)

)

Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT OP KADOLPH COUNTY, “11SS0UrI

14th Judicial Circuit

Honorable Samucl L. Semple, Judge

MOTION FOR REMLARIUG

Pursuant to Rule 64.17, vefendant-Appellant moves

- the Court to grant a rehearing of this appeal and as rounds

for this motion states that the Court has overlooked and

misinterpreted matcrial matters ©f law aml fact, as shown ivy

its majority opinion, ar follows:

)

The majority opinion {ails to akiress the nateriul

question of whether the aggravating circunstance, that "tiic

capital murder was committed by a person in...the lawful

custody of a peace officer or place of lawful confinement",

§565.012.2(9), is enough of an agyravating circumstance

ce ee.

to constitutionally permit imposition of the death penalty.

zz.

The majority opinion fails to address tlie material

question of whether imposition of the death penalty in this

case is excessive or disproportionate t« the penalty imposed

APPENDIX B -39-

in similar cases as required unier §°56%.614 and discriminates

unfairly against this Defendant-Anpellant as compared to many

others who have received lesser sentence: where their conduct

reflected the existence of aggravating circumstances of a

greater degree.

Ill.

The majority opinion fails to «wdress itself to

the requirement that all procelures involved in the process

of imposing the sentence of death are: subject to the standard

of heightened reliability at all pinases of trial.

Iv.

The majority opinion fails to address itself to

the issues in Appellant's Reply bricf wherein appellant

alleged error in failing to instruct the jury on first degree

murder.

+

WHEREFORE, vefendant-Appellant prays this Court

grant his Motion for Rehearing.

Nesnectfully submitted,

AWD SIcAIL

aad ‘QUACO, COIL, RILEY

o

Ve 261/72

211 Last Cap tol, P.O. Fox 235

‘efferson City, Missouri 65102

Telephone: “ (314) 636-2177

= Attorneys for vefendant-A»ncllant.

PROOF OF SERVICE

THE UMDERSIGHED CEATH IES THAT A COmPUrTE

COPY OF THIS WSTRUMENY WAS SERVED UPON

THE ATION YS OF (CURD ©! EACH Panty

TO TH: ABOVE ACTICN CY ENCLOSING The Same

Wt ENVELOPES AD0Ki."le TO SAID ATTORNEYS

AT THM BUSINESS AULRESS AS DISCLOSED Uw

Til PLEADINGS OF Lf.OKD MERLIN, WITH Punst.

CLAS: POSTALE +UuLT 7af?. 1D, AMD BY OCPOMITING

SAID ENVFLO £5 IN A U.S. POSS OFC! manB on

Wome od

-2-

alin

ee, e

Supreme Court of Missouri

en banc

STATE OF MISSOURI, ; DUPLICATE |

Respondent, ; OF FILING ON

oe No. 62362 jie .2 1987

MARTSAY BOLDER, ; IN OFFICE OF

Appellant. ) CLERK SUPREME COURT

PER CURIAM

ON MOTION FOR REHEARING

Appellant in his motion for rehearing contends that the trial

court erred in failing to instruct the jury on first degree murder as

a lesser included offense. There was no objection at trial to the

failure to so instruct the jury, and appellant did not raise the point

in his motion for new trial. It is raised here for the first time in

appellant's reply brief, but it attempts to raise a new matter rather

than reply to matters raised in the state's brief. Such is impermissible.

State v. Brown, 502 S.W.2d 295, 306 (Mo. 1973), cert. denied, 416 U.S.

973 (1974).

Appellant argues that we should review the point for plain error.

Rule 29.12(b). After careful consideration we conclude that there has

been nc “manifest injustice or miscarriage of justice,” id., that would

necessitate reversal. The trial court instructed the jury on second

degree murder and manslaughter, and the jury thus had the opportunity

to convict appellant of a lesser offense. See Beck v. Alabama, 447

U.S. 625 (1980). Moreover, the evidence in this case would not support

an instruction on first degree (felony) murder because none of the

. five enumerated felonies, § 565.003, RSMo 1978, was present. Due

process therefore is not abridged. Hopper v. Evans, 50 U.S.L.W. 4527

(U.S. May 24, 1982).

The motion for rehearing is overruled.

i . mae eta + Sn a eNO

=iS-