# Petition — Bolder v. Missouri > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1329%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1137 ## Text RECEIVED eh OF: c UF lee v ve LLER SUPREMS fovnr yy “y ———ee 82-5648 SUPREME CCURT OF THE UNiTZD STATES IN Th 0. A-2 ‘ MARTSAY BOLLER, Petitioner, vy v Ay F MISSOVU Re SS, cent ’ ? Ve ! CERT AF r me) r t: ATr FM ’ at rh A pain liv Zl EAST A Tr ; F r OFF ec BOX JEFFERSON Y 1‘ f ‘ . 314 ‘ - RICHA ICH, ,* , ’ . . ie. i i ) £ l1SA 7 t ; Ui T > - SY MIS f 14 4 tH Ueel 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 “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- {9} 4 first cor pre-sent defenda: capital | predict available guilt ph: testify | mitigati: fact,” a 3. The s guage « to ® pF crime h therefor 565 We 1A mact heard se! ay jury s or ne puns wheul murd the $ guilty murd consi oul ai us ve is guP degre Siaug! 2 dct « sectio sume heart tome t of the heans pery < in ex! of pu pror or ple or Uy convi aggre know be ad hear 3 sel a! the p cuting shaii judge argun propr retire ort the 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1329%3A1. Public record. Not legal advice.