Petition — LaRETTE v. MISSOURI (No. 82-6979)

». 82 6979 [Giz>:

IN THE 2, 1993

SUPREME COURT OF THE UNITED STATES See

| OFFICE OF Lit ci |

OCTOBER TERM, 1962

ANTHONY J. LARETTE, JR.

Petitioner

Vv.

STATE OF MISSOURI

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI \

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Comes now Anthony J. LaRette, Jr., petitioner, through

court-appointed counsel, and moves this Court for an order

permitting him to proceed in forma pauperis pursuant to Supreme

Court Rule 46.

Petitioner was given leave to proceed in forma pauperis on his

direct appeal in the Supreme Court of Missouri. The State Public

Defender was appointed to represent him in subsequent proceedings

and assigned petitioner's case to the Public defender of the City of

St. Louis.

Respectfully submitted,

set cee

Public Defender

22nd Judicial Circuit

Ba a

Assistant Public Defender

22nd Judicial Circuit

1320 Market Street

St. Louis, Missouri 63103

(314) 622-4241

Attorneys for Petitioner , 3

}

On Petition for Writ of Certiorari to the Supreme Court of Missouri.

AFFIDAVIT IN SUPPORT OF MOTION

“TO PROCEED IN FORMA PAUPERIS

I, Anthony J. LaRette, being first duly sworn, depose and

say that I ama petitioner in the above-entitled case; that in

support of my motion for leave to proceed in forma pauperis, I

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

of said proceeding or to give security therefor; that I believe

I am entitled to redress, and that there is merit to the issues

raised in my petition for writ of certiorari.

I further swear that the responses which I have made to the

questions and instructions below relating to my ability to pay

the cost of prosecuting the appeal are true.

1. Are you presently employed?

a. If the answer is yes, state the amount of your

salary or wages per month and give the name and

address of your employer.

b. If the answer is no, state the date of your last

employment and the amount of salary and wages per

month which you received.

Answer: No. 1978 _$900.00 per. month

2. Have you received, within the past twelve months, any

income from a business, profession or other form of

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

interest, dividends, or other source?

a. If the answer is yes, describe each source of =

income, and state the amount received from each oe

during the past twelve months.

}

’

3. Do you own any cash or checking or savings account?

a. If the answer is yes, state the total value of the

items owned.

Answer: No.

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary household furnishings and clothing)?

a. If the answer is yes, describe the property and

state its approximate value.

Answer: No.

S. List the persons who are dependent upon you for

support and state your relationship to those persons.

Answer: None

I understand that a false statement or answer to my

questions in this affidavit will subject me to penalties for

perjury.

Subscribed and sworn to before me this _ day

of JUN 4 7 883 . 1982.

25

QUESTIONS PRESENTED FOR REVIEW

DOES THE FEDERAL CONSTITUTION REQUIRE, IN ADDITION TO THE

PROCEDURES WHEREBY A TRIAL COURT AND JURY IMPOSE A DEATH SENTENCE,

ANY SPECIPIC FORM OF “PROPORTIONALITY REVIEW" BY A COURT OF

STATEWIDE JURISDICTION PRIOR TO THE EXECUTION OF A STATE DEATH

JUDGMENT.

I!

WHETHER THE MISSOURI SUPREME COURT, BY HOLDING THAT THE JURY

FOUND TWO AGGRAVATING CIRCUMSTANCE, TORTURE AND DEPRAVITY OF MIND,

WHEN ONLY ONE AGGRAVATING CIRCUMSTANCES WAS SUBMITTED TO THE JURY,

NAMELY "THE OFFENSE WAS OUTRAGEOUSLY OR WANTONLY VILE, HORRIBLE OR

INHUMAN IN THAT IT INVOLVED TORTURE, OR DEPRAVITY OF MIND,” AND BY

DOING SO WITHOUT STATING ANY SEPARATE FACTS ON WHICH SEPARATE

FINDINGS COULD BE BASED, SO UPSET THE BALANCE OF AGGRAVATING AND

MITIGATING CIRCUMSTANCES CONSIDERED BY THE SENTENCER AS TO MAKE THE

MISSOURI SUPREME COURT'S AFFIRMANCE OF THE DEATH SENTENCE

UNCONSTITUTIONAL FOR FAILURE TO CONSTRUE MISSOURI'S DEATH PENALTY

STATUTES AND REVIEW THE SENTENCE CONSISTENTLY WITH THE CONCERNS OF

FURMAN V. GEORGIA, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972).

Itt

WHETHER THE MISSOURI SUPREME COURT CONTRAVENED THE RULING OF

THIS COURT IN ZANT V. STEPHENS, 456 U.S. 410, 102 S.Ct. 1856, 72

L.Ed.2d 222 (1982), BY HOLDING, WITHOUT GIVING ANY PREMISES OF STATE

LAW FOR THIS HOLDING, THAT THE FAILURE OF ONE OF TWO OR MORE

STATUTORY AGGRAVATING CIRCUMSTANCES DOES NOT VITIATE A DEATH

SENTENCE RESTING THEREON.

TABLE OF CONTENTS

Questions Presented for Review

Table of Contents

Table of Authorities

Opinion below

Jurisdictional Statement

Constitutional Provisions Involved

Statutes Involved

Statement of the Case

Argument

Conclusion

Appendix

Opinion of Missouri Supreme Court

Motion for Rehearing

Order of Missouri Supreme Court

Denying Rehearing

Judgment and Sentence of the Circuit Court of

Warren County, Missouri

Statutes Involved (Rule 21.1(£))

Verdict Form From Punishment Phase of Trial

Transcript of Trial Court's Instructions,

Punishment Phase

Excerpt from Petitioner's Brief in Missouri

Supreme Court

ii

Be:

TABLE OF AUTHORITIES

Collins v. Lockhart, No. 82-1769 6

Cook v. State, 369 So.2d 1251 (Ala. 1978) 12

Douglas v. California, 372 U.S. 353 (1963) 9

Furman v. Georgia, 408 U.S. 238 (1972) i, 6, 8

Gardner v. Florida, 430 U.S. 349 (1977) 6, 8, 9

Godfrey v. Georgia, 446 U.S. 420 (1980) 6, 12

Gregg v. Georgia, 428 U.S. 153 (1976) 6, 7

Harris v. Pulley, 692 F.2d 1189 (9th Cir. 19862) 6

Herring v. New York, 422 U.S. 853 (1975) ie)

Hicks v. Oklahoma, 447 U.S. 343 (1980) 10

Jurek v. Texas, 428 U.S. 153 (1976) 6, 7

Menendez v. State, 368 So.2d 1278 (Fla. 1979) 13

People v. Brownell, 404 N.E.2d 181 (Ill. 1980) 13

Proffitt v. Plorida, 428 U.S. 242 (1976) 6, 7, 13, 13

Provence v. State, 337 So.2d 783 (Fla. 1976) 12

Pulley v. Harris, 51 U.S.L.W. 1144 (No. 82-1095) §, 10

State v. LaRette, 648 S.W.2d 96 (Mo. banc 1983) 3, 5, 11, 12

State v. Mercer, 618 S.W.2d 1 (Mo. banc 1981) ll

State v. Rust, 250 N.W.2d 867 (Neb. 1977) 12

State v. Stokes, 638 S.W.2d 715 (Mo. hanc 1982) 4, 5

Woodson v. North Carolina, 428 U.S. 280 (1976) 7

Zant v. Stephens, 456 U.S. 410 (1982) . ts

United States Constitution Anenfinent XIV 10

Section 565.006, R.S.Mo. 1978 3

Section 565.012, R.S.Mo. Supp. 1982 3, ll

Section 565.014, R.S.Mo. 1978 3. Be: at

iii

4,

OPINION BELOW

The opinion of the Supreme Court of Missouri is reported as

State v. LaRette, 648 S.W.2d 96 (Mo. banc 1983).

JURISDICTION

The judgment of the Supreme Court of Missouri was entered

on March 29, 1983.

Petitioner's Motion for Rehearing was denied on April 26,

1983.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Eighth Amendment.

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment

inflicted.

United States Constitution, Fourteenth Amendment, Section 1.

All persons born or naturalized in the United

States and subject to the jurisdiction thereof are

citizens of the United States and of the state wherein

they reside. Wo state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States, nor shall any state

deprive any person of life, liberty or property

without due process of law, nor deny to any person

= its jurisdiction the equal protection of the

aws.

STATUTES INVOLVED

Due to their length, the following statutes are set forth

in the Appendix, at page A-29 thereof.

Section 565.001, R.S.Mo. 1978

Section 565.006, R.S,Mo. 1978

Section 565.008, R.S.Mo. 1978

Section 565.012, R.S.Mo. Supp. 1982

Section 565.014, R.S.Mo. 1978

Section 565.016, R.S.Mo. 1978

‘

STATEMENT OF THE CASE

Petitioner Anthony J. LaRette, Jr., was convicted of capital

murder in the Circuit Court of Warren County, Mo., and sentenced to

death. On appeal, the Missouri Supreme Court affirmed the

conviction and sentence.

The state's evidence tended to show the following. The victin,

eighteen-year-old Mary Fleming, had been left alone in her apartment

in St. Charles, Missouri, when her mother and sister left for work

on the morning of July 25, 1980. At about 11:00 a.m. Mary appeared

at a neighbor's house covered with blood and wearing only a bikini

top pulled above her breasts, and collapsed. At about the same

time, a man identified by a witness as petitioner was seen running

to a car in the neighborhood and driving away.

The victim was seen at the emergency room at about 11:30. she

showed no signs of life and could not be revived. There was an

incised (slash) wound, five or six inches long, to her throat, and

two stab wounds 3/4 inch to one inch long to her chest, one of which

pierced the heart. The stab wounds, or at least the one to the

heart, caused her death. There was a bruise on her forehead and

small, incised “defense wounds" on her hands. Examination of the

genital area revealed no sign of sperm or of trauma.

A number of admissions were introduced against petitioner.

Confronted by a suspicious friend, petitioner said he was

burglarizing the apartment when the girl walked in on him. He said

he didn't want to hurt her and was going to leave. She started

yelling, and he knocked her down and then stabbed her. He threw the

knife in the river.

Petitioner was arrested in Topeka, Kansas, where his parents

lived. He consented to speak to the two detectives who came to

return him to St. Charles, Missouri, the site of the murder. He had

just been released from the hospital following emergency room

treatment for self-inflicted stab wounds. Petitioner put his hands 4

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over his face and told the detectives, "I'm responsible for her

death,” because he had picked up a hitchhiker who committed the

murder. Petitioner caught him in the act and tried to help the

victim who got up and ran.

Petitioner told a Kansas deputy sheriff, apparently

spontaneously, “I tried to choke her first, but I couldn't,” and ,

“She promised not to scream, but she lied to me.” He also said, “I

caused an 18 year old girl to die.”

In St. Charles, petitioner repeated the hitchhiker story until

he was told that a witness described the suspect car as having only

one occupant. Petitioner then started crying, admitted there was no

hitchhiker, and said, "I did it. I didn't mean to hurt her.” He

said he entered the unlocked apartment to commit a burglary. A

stiletto knife was in his pocket. He went down to the basement, and

when he came back up the stairs he saw the victim with her shorts

off, apparently changing clothes. (Her cutoff blue jeans were found

in the living room, her panties on the kitchen floor.) He grabbed

her, knife in hand, and told her he didn't want to hurt her, not to

scream, and that all he wanted to do was get the hell out of there.

She agreed not to scream, and he let go of her. Then she

started screaming. That's when it happened. “She lied to me. She

promised me she wouldn't scream. I thought he was just like all the

others. My wife and my mother-in-law always lied to me. If she

hadn't lied to me it wouldn't have happened.” Petitioner said he

did not remember the rest of what happened in the apartment.

The federal questions raised in this petition arose only when

the Supreme Court of Missouri handed down its opinion and jdugment

affirming the conviction and sentence. (Appendix (hereinafter

A-)2). Petitioner's timely Motion for Rehearing (A-20) was denied

(A-26). The following procedural background is relevant to the

issues presented herein.

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Under Missouri's death penalty laws, the jury, after a

bifurcated trial, must find at least one statutory aggravating

circumstance before it may proceed to consider mitigating

circumstances and, in its discretion, impose the death penalty.

Section 565.006; Section 565.012.5, R.S.Mo. 1978. One statutory

aggravating circumstance was submitted to the jury in this case,

Section 565.012.2(7):

The offense was outrageously or wantonly vile, horrible or

inhuman in that it involved torture, or depravity of mind.

The foreman of the jury wrote on the verdict form that the jury

found (A-36):

Torture, Depravity of mind and that as a result it was

outrageous and wantonly vile, horrible and inhuman also

(sic)

Anthony J. LaRette, Jr. was convicted of rape in the

District Court of Douglas County, State of Kansas on July

22, 1974.

Under Missouri law, the prior conviction is a “non-statutory”

aggravating circumstance, State v. LaRette, 648 S.W.2d 96, 101 fn.2

(Mo. banc 1983), and therefore cannot support a verdict of death.

Missouri law also provides for mandatory review of all death

sentences by the state high court. Section 565.014, R.S.Mo. 1978.

In this case, the statutory review was disposed of as follows. 648

S.W.2d at 105:

We turn now to defendant's contention that the

sentence of death in this case is excessive and

disproportionate.

The General Assembly has mandated that this Court

shall consider the matter of the death sentence being

imposed and requires us to determine (Section 565.014.3,

R.S.Mo. 1978):

(1) Whether the sentence of death was

imposed under the influence of passion,

prejudice, or any other arbitrary factor, and

(2) Whether the evidence supports the jury's

or judge's finding of a statutory aggravating

circumstance as enumerated in secton 565.012; and

(3) Whether the sentence of death is

excessive or disproportionate to the penalty

imposed in similar cases, considering both the

crime and the defendant.

We find nothing in the record to suggest the sentence

resulted from the influence of passion, prejudice, or any

other arbitrary factor. There was substantial evidence to

support the jury's finding of statutory aggravating

circumstances. We conclude that considering the instant

crime and the defendnat in this case that the penalty

imposed is not excessive nor disproportionate to the

penalty imposed in similar cases. State v. Stokes, 638

S.W.2d 715 (Mo. banc 1982).

The judgment is affirmed.

A Missouri statute governing appellate review (Section

565.014.3, R.S.Mo. 1978) of a death sentence mandates the Supreme

Court of the State to determine:

(1) Whether the sentence of death was imposed under

the influence of passion, prejudice, or any other arbitrary

factors; and

(2) Whether the evidence supports the jury's or

judge's finding of a statutory aggravating circumstance as

enumerated in Section 565.012; and

(3) Whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.

The extent of the proportionality review required by

subparagraph 3 of 565.014.3 in this cause was dispensed with in a

single sentence: "We conclude that considering the instant crime

and the defendant in this case that the penalty imposed is not

excessive nor disproportionate to the penalty imposed in similar

cases." 648 S.W.2d at 105. The Opinion further cites to a single

case, State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982), apparently

suggesting that the facts in that case would support their earlier

conclusion that the penalty imposed in this case is not excessive or

disproportionate. The considerable discrepancies between Stokes and

the defendant in the case at bar are set out in Judge Seiler's

powerful dissent, 648 S.W.2d at 108-10. The dissent, unlike the

majority opinion, proceeds to compare the circumstances surrounding

the crime and the individual characteristics of the defendant

against more than ten cases and concludes that “the death penalty

can [not] stand in [this] particular case...”

This Court will soon hear oral arguments in Pulley v. Harris,

cert granted, 51 U.S.L.W. 1144 (U.S. March 22, 1983) (No, 82-1095),

which touch on similar and nearly identical areas of concern. In

that case, the Court of Appeals of the Ninth Circuit vacated a

sentence of death because the California Supreme Court refused to

conduct any proportionality review as required by earlier state

5

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court decisions and endorsed by the decisions of this Court. Harris

v. Pulley, 692 F.2d 1189, 1196-97 (9th Cir. 1962). See also Collins

v. Lockhart, No. 82-1769, F.2d (8th Cir. 1983).

When this Court in 1976 approved the Georgia, Florida and Texas

capital-sentencing statutes on their faces, Greqg v. Georgia, 428

U.S. 153 (1976), Proffitt v. Plorida, 428 U.S. 242 (1976); Jurek v.

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

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

States, would guarantee against the arbitrary and capricious

infliction of the death penalty which had been condemned in Furman

v. Georgia, 408 U.S. 238 (1972). This Court placed particular

reliance on the procedures for appellate review, Gregg v. Georgia,

supra. 428 U.S. at 166-68, 204-06 (Op. of Stewart, Powell and

Stevens, JJ.); 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 ina fair,

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

supra, 428 U.S. at 259-60; Jurek v. Texas, supra, 428 U.S. at 276;

see also Gardner v. Florida, 430 U.S. 349, 361 (1977), so that

similar cas | would reach similar results, Gregg v. Georgia, supra,

428 U.S. at 198, 208 (Op. of Stewart, Powell and Stevens, J.J.);

Id., at 223 (White, J. concurring); Proffitt v. Florida, supra 428

U.S. at 251, 253, 258 (Op. of Stewart, Powell and Stevens, JJ.);

Jurek v. Texas, supra, 428 U.S. at 270, (Op. of Stewart, Powell and

Stevens, JJ.); Id. at 279 (White and Rehnquist, JJ. and Burger,

C.J., concurring), and there would be a “meaningful basis for

distinguishing the few cases in which [the death penalty] is imposed

from the many cases in which it is not." Gregg v. Georgia, supra 48

428 U.S. at 198, quoting from Furman v. Georgia, supra, 408 U.S. at

313 (White, J. concurring); Godfrey v. Georgia, 446 U.S. 420, 427

(Op. Stewart, Blackmun, Powell, Stevens, JJ.).

A key feature of the Florida, Georgia and Texas death sentencing

procedures then sustained was that each provided “a prompt judicial |

review of the [sentencing]...decision in court with statewide

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consistent imposition of death sentences under law." Jurek v.

Texas, 428 U.S. 262, 276 (plurality opinion). The functions of this

appellate review are “to assure that the death penalty will not be

imposed on a capriciously selected group of convicted defendants,”

Gregg v. Georgia, 428 U.S. 153, 204 (plurality opinion), and to

“insure that [death sentences] are consistent with other sentences

imposed in similar circumstances." Proffitt v. Florida 428 U.S.

242, 253 (plurality opinion). The Court explicitly noted that the

Georgia statute (identical to the Missouri statute) required

“proportionality review" (Gregg v. Georgia, supra, 428 U.S. at 206)

by commanding the Georgia Svpreme Court to determine “Whether the

[death] sentence [in each case] is disproportionate compared to

those sentences imposed in similar cases" (Id. at 198) and quoted

approvingly from the Florida Supreme Court's description of the

function of its sentencing review “to ‘[guarantee] that the

{aggravating and mitigating] reasons presented in one case will

reach a similar result to that reached under similar circumstances

in another case.'" (Proffitt v. Florida, supra, 428 U.S. at 251,

quoting State v. Dixon, 283 So.2d 1, 10 (Fla. 1973)) By contrast,

this Court struck down the North Carolina statute before it in

Woodson v. North Carolina, 428 U.S. 280 (1976) observing that there

is “no way under the North Carolina law for tne judiciary to check

arbitrary and capricious exercise of [the death sentencing]. ..power

through a review of death sentences." Id., at 303; a footnote to

this sentence consists exclusively of a cross-reference to Gregg's

description of the Georgia proportionality review procedure, (Id. at

303 n. 38) and summarizing “Purman's basic requirement” as a

procedure that replaced “arbitrary and wanton jury discretion with

objective standards to guide, regularize, and make rationally

reviewable the process for imposing a sentence of death.” (Id.,

emphasis added).

These procedural safeguards are built into a constitutional

statute because “...the State must administer its capital-sentencing

procedures with an even hand, [citation omitted], [and thus] it is

important that the record on appeal disclose to the reviewing court

the considerations which motivate the death sentence in every case

in which it is imposed. Without full disclosure of the basis of the

death sentence, the FPlorida capital sentencing procedure would be

subject to the defects which resulted in the holding of

unconstitutionality in Purman v. Georgia.” Gardner v. Florida, 430

U.S. 349, 361 (1977). The statutory protections are required

because experience demonstrates that constitutional rights cannot be .

protected by pious, naive expectations that they will be observed in

the absence of adequate, compulsory procedures to preserve then.

The Supreme Court of Missouri, conducting their alleged

“proportionality review" in such a cursory, dilatory fashion has run

roughshod over those protections preserved by the statute and relied

on in this Court's opinions. The c. »sstitutional requirement for

proportionality review is a byproduct of the recognition “*...that

death is a different kind of punishment than any other which may be

imposed in this country. (Citations omitted.]" Gardner v. Florida,

supra, at 357.

Further, the method of “ne-review" adopted by the Missouri

Supreme Court effectively denies the Appellant the opportunity to

present to any reviewing tribunals his position on the

proportionality review allegedly conducted. The Missouri statutory

scheme requires a comparison of Defendant's case to “similar cases,

considering both the nature of the crime and the defendant.” Thus,

in any particular appeal, a pool of “similar cases” will be drawn

with which to compare petitioner's case. In order for petitioner to

argue that his sentence is disproportionate to those sentences

imposed in similar cases, however, petitioner must know what cases

are deemed “similar.” The only way this information would be

available is for him to be made aware of what criteria the Court

utilizes in determining similarity. Obviously, the Court in this

case has not made such criteria known.

The petitioner has the right to assistance of counsel with

respect to issues concerning the sentence as well as the

determination of guilt. Douglas v. California, 372 U.S. 353,

356-357 (1963). However by its refusal to in any way enunciate how

the review was conducted or those cases that constitute the pool,

the Supreme Court of Missouri has denied the petitioner his right to

effective assistance of counsel. Such a right is meaningless if

counsel is precluded from fully and effectively arguing Petitioner's

case. By virtue of the non-disclosure of the criteria governing the

proportionality review of Petitioner's death sentence, counsel is

precluded from fully and effectively arguing his case in any

reviewing court. Such a situation cannot be permitted, for the

right to effective assistance of counsel includes the right to make

meaningful argument to reviewing courts. Herring v. New York, 422

U.S. 853, 857-858, 862 (1975).

By failing to disclose to petitioner and others similarly

situated the criteria or pool of similar cases by which

proportionality review is to be conducted, the Missouri Supreme

Court has effectively removed proportionality review from the

adversary process.

“Our belief that debate between adversaries is often

essential to the truth-seeking function of trials requires

us also to recognize the importance of giving counsel an

opportunity to comment on facts which may influence the

sentencing decision in capital cases..."

“We conclude that petitioner was denied due process of

law when the death sentence was imposed, at least in part,

on the basis of information which he had no opportunity to

wus. Gardner v. Florida, 430 U.S. 349, 360,

362 (1977).

Due process as well is denied when counsel is refused the

opportunity to comment on the facts considered in the review of

proportionality of sentences imposed in “similar” cases and present

his arguments to reviewing courts.

~

‘

Even if this Court were to decide in Pulley v. Harris that

proportionality review, presently required by thirty-one states, is

not a federal constitutional requirement, the action of the Missouri

Supreme Court in refusing to follow the statutory scheme as set out

by the Legislature is a violation of the petitioner's right to due

process under the Fourteenth Amendment. Where the state creates a

substantial right, such as proportionality review, the arbitrary

denial of that right by the state is a federal due process violation

even if the right itself is not federally guaranteed.

In Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), the petitioner's

sentence had been affirmed by a state appellate court even though

the statute, under which a sentencing jury was instructed to impose

a mandatory minimum sentence, had been held unconstitutional by the

state courts. This Court found a denial of due process:

"It is argued that all that is involved in this case

is the denial of a procedural right of exclusively state

concern. Where, however, a state has provided for the

imposition of criminal punishment in the discretion of the

trial jury, it is not correct to say that the defendant's

interest in the exercise of that discretion is merely a

matter of state procedural law. The defendant in such a

case has a substantial and legitimate expectation that he

will be deprived of his liberty only to the extent

determined by the jury in the exercise of its statutory

discretion, (citation) and that liberty interest is one

that the Fourteenth Amendment preserves against arbitrary

deprivation by the state. (Citations).”

In Missouri, as in Georgia, this Court is once again faced with

the inevitable conclusion “that appellate courts are incapable of

guaranteeing the kind of objectivity and evenhandedness that [this]

Court contemplated and hoped for in Gregg.” Godfrey v. Georgia,

supra, 446 U.S. at 439 (Concurring Opinion Marshall and Brennan,

JJ.).

QUESTION PRESENTED - II

This Court has emphasized the role of meaningful appellate

review as a safeguard against the arbitrary and capricious

infliction of the death penalty. Proffitt v. Florida, 428 U.S. 242,

252-53, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). As Zant v. Stephens,

456 U.S. 410, 102 S.Ct. 1856, 1857, 72 L.Ed.2a 222 (1982), says of

the Georgia scheme, on which Missouri's is patterned, State v.

Mercer, 618 S.W.2d 1, 5 (Mo. banc 1981):

We recognized [in Grea v. Georgia] that the

constitutionality of Georgia dea sentences ultimately

would depend on the Georgia Supreme Court construing the

statute and reviewing capital sentences consistently with

this concern [of Furman v. Georgia, 408 U.S. 238].

The Missouri Supreme Court's perfunctory review in this case is

constitutionally deficient.

As part of its mandatory death sentence review, the Missouri

Supreme Court must determine

Whether the evidence supports the jury's or judge's finding

of a statutory aggravating circumstance as enumerated in

section 565.012.

Section 565.014.3(2), R.S.Mo. 1978. The only aggravating

circumstance submitted in this case was Section 565.012.2(7), "The

offense was outrageously or wantonly vile, horrible or inhuman in

that it involved torture, or depravity of mind.”

The Missouri Supreme Court ruled this issue in the following

language: "There was substantial evidence to support the jury's

finding of statutory aggravating circumstances." 648 S.W.2d at 105.

The use of the plural is explained by the Court's ruling on an

issue raised by petitioner on his direct appeal (See A-44), that

there was insufficient evidence to support a finding of torture.

The majority held that the jury had found both torture and depravity

of mind and that therefore they had found two aggravating

circumstances. Yet the Court failed to state any separate facts

upon which findings of torture and depravity of mind could be based

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They went on to add that even if torture were not shown on the

record, the sentence of death would not fail since depravity still

was shown. 648 S.W.2d at 101-2.

In its zeal to enforce the death sentence, the Missouri Supreme

Court found two aggravating circumstances where the law, the facts

and the jury's verdict supported only one. It violated the statutes

the constitutionality of which depends on its meaningful review of

death sentences. And it violated this court's ruling in Zant v.

Stephens, supra.

Section 565.012.2(7), R.S.Mo. 1978, comprises one statutory

aggravating circumstance, the only one submitted to the jury

(A-39): "The offense was outrageously or wantonly vile, horrible or

inhuman..." Torture or depravity is not the aggravating

circumstance but is that which makes the offense vile, horrible, or

inhuman. In Godfrey v. Georgia, 446 U.S. 420, 430-31, 100 8.Ct.

1759, 1766, 64 L.Ed.2d 398 (1980), the plurality opinion of this

Court adopted the Georgia Supreme Court's construction of the same

terms, torture and depravity of mind, as standing in a cause and

effect relation, depravity being the state of mind that results in

torture to the victia.

But even if the Court accepts the Missouri Supreme Court's

splitting of the aggravating circumstance as a matter of statutory

construction, there is substantial authority from the high courts of

sister states that it is unreasonable and unfair to use the same

facts, or the same aspect of a crime, to constitute two aggravating

circumstances. Cook v. State, 369 So.2d 1251, 1256 (Ala. 1978);

Provence v. State, 337 So.2d 783, 786[3] (Fla. 1976); State v. Rust,

It would be naive to argue that mere number determines the

weight of the aggravating circumstances; nonetheless it is a factor

in the balancing process, as Zant v. Stephens, supra, implies.

Furthermore, the Missouri Supreme Court put a construction on the

12

|

ae Bis» acide » <2 ae a a PO i I il I ls al ct ie Nea ng a ae cll i ill calli kia esate Nats hi ed

EE

verdict that the jury could not possibly have intended, since they

were instructed to consider a single aggravating circumstance

(A-39). The Court thus upset the balance of factors which channeled

the jury's discretion. Proffitt v. Florida, 428 U.S. 242, 258, %

S.Ct. 2960, 2969, 49 L.Ed.2d4 913 (1976).

QUESTION PRESENTED - III

Finally, as the concurring opinion of Welliver, J., makes

abundantly clear, the Court prematurely purports to decide the issue

reserved by this Court in Zant v. Stephens, 456 U.S. 410. See 648

S.W.2d at 106-7. Without stating any grounds, the majority holds

sua sponte that the failure of one of two aggravating circumstances

does not taint the death sentence. 648 8.W.2d at 102.

This is precisely the question certified in Zant v. Stephens.

Other courts have given it proper consideration and reached the

contrary conclusion. Menendez v. State, 368 So.2d 1278, 1282[6]

(Pla. 1979); People v. Brownell, 404 N.E.2d. 181, 195[19] (111.

1980). Its presence in this case has the sole purpose of evading

meaningful review.

In summary, the Missouri Supreme Court has not hesitated to make

bad law whenever that expedient will aid them in affirming a death

sentence. Only this Court can halt the degeneration of this form of

constitutionally mandated appellate review into an exercise in

vindictiveness.

CONCLUSION

. Por the foregoing reasons, petitioner prays that the petition

for writ of certiorari be granted.

Respectfully submitted,

ee

Public Defender

22nd Judicial Circuit

Keung (aieter

Assistant Public Defender

22nd Judicial Circuit

1320 Market Street

St. Louis, Missouri 63103

(314) 622-4241

Attorneys for Petitioner

14

APPENDIX

Table of Contents

Opinion of Missouri Supreme Court

Motion for Rehearing

Order of Missouri Supreme Court

Denying Rehearing

Judgment and Sentence of the Circuit Court of

Warren County, Missouri

Statutes Involved (Rule 21.1(f))

Verdict Form From Punishment Phase of Trial

Transcript of Trial Court's Instructions,

Punishment Phase

Excerpt from Petitioner's Brief in Missouri

Supreme Court

A-02

A-20

A-26

A-27

A-29

A-36

A-37

A-44

96 Mo.

[5] Because we have held that § 144.-

020.1(2) imposes a tax upon the receipts of

coin-operated amusement devices located in

places of amusement, etc., it follows that

promulgation of Rule 12 CSR 10-3.176, be-

ing a proper interpretation of the statute

insofar as it pertains to coin-operated

amusement devices, was not in disregard of

the 1974 injunction. Thus, without decid-

ing whether contempt was the appropriate

remedy, we hold that the judgment of civil

contempt is reversed and remand with di-

rections to the trial court to set aside the

judgment of contempt.

HIGGINS, J., concurs.

WELLIVER, PJ., concurs in result in

separate opinion filed.

BLACKMAR, J., not participating be-

cause not a member of the court when

cause was submitted.

WELLIVER, Judge, concurring in result.

I concur in the result. I am not per-

suaded that the rule in question falls within

the parameters of the statute, but I do

believe that contempt is an improper reme-

dy. Inherent in the rulemaking authority is

the authority to promulgate rules that may

subsequently be declared invalid.

I make two observations regarding to-

day’s decision. First, the principal opinion

does not decide whether a tax may be im-

posed in any specific instance. Such a deci-

sion would necessarily depend upon facts

developed more fully than those stipulated

here. Second, it is unnecessary to consider

in this case whether for tax purposes there

is a rational basis for distinguishing be-

tween pinball machines and other such de-

vices located in places of amusement and

those located elsewhere.

° {comer

because it was felt that the language already

used was clear and unambiguous and no

648 SOUTH WESTERN REPORTER, 2d SERIES

STATE of Missouri, Respondent,

v.

Anthony Joe LaRETTE, Jr., Appellant.

No. 63569.

Supreme Court of Missouri,

En Banc.

March 29, 1983.

Rehearing Denied April 26, 1983.

Defendant was convicted in the Circuit

Court, Warren County, Edward D. Hodge,

J., of capital murder, and he appealed. The

Supreme Court, Billings, J., held that: (1)

defendant failed to sustain burden that fail-

ure to bring him to trial within statutory

period was occasioned by State; (2) evi-

dence supported finding that defendant’s

acts involved both torture and depravity,

two aggravating circumstances for imposi-

tion of death penalty; (3) evidence was

sufficient to demonstrate elements of delib-

eration and premeditation necessary for

capital murder; (4) evidence supported

finding that defendant’s statements to po-

lice were voluntary; and (5) death penalty

was not excessive or disproportionate.

Affirmed.

Welliver, J., concurred in result and

filed opinion.

Seiler, J., filed opinion concurring in

part and dissenting in part.

1. Criminal Law ¢=1144.13(8)

In determination of whether there was

sufficient substantial evidence to support

guilty verdict of capital murder, Supreme

Court will consider facts in evidence and all

favorable inferences reasonably to be

drawn therefrom in light most favorable to

State and disregard all contrary evidence

and inferences.

amendment was necessary. Id. at 601-02.

A-2

STATE v. LaRETTE

Mo. 97

Chte as 648 S.W.2d 96 (Mo.banc 1983)

2. Criminal Law @=577.16(9)

Delays in bringing defendant to trial

within statutory 180 days were attributable

to delays occasioned by pretrial motions,

change of venue, and continuances because

of preparation of preliminary hearing tran-

script, and thus defendant failed to sustain

his burden that failure to bring him trial

within statutory period was occasioned by

State. V.A.M.S. § 545.780.

3. Homicide 354

Evidence was sufficient and substantial

to support finding that murder of victim by

defendant involved both torture and de-

pravity, aggravating circumstances justify-

ing imposition of death penalty. V.A.M.S.

§§ 565.012, 565.012, subd. 2(7).

4. Criminal Law @1208(1)

Where two or more statutory aggra-

vating circumstances are found by jury,

failure of one circumstance does not taint

proceedings so as to invalidate other aggra-

vating circumstance found and sentence of

death thereon. V.A.M.S. § 565.012.

5. Criminal Law @1208(1)

Having found threshold requirements

of statutory aggravating circumstances,

jury could also consider defendant's prior

convictions, including rape, together with

all evidence adduced at trial, in imposing

death sentence. V.A.M.S. § 565.012.

6. Homicide ¢>253(1)

Evidence supported finding that de-

fendant intended to take life of victim and

acted with necessary premeditation and de-

liberation, thereby supporting conviction of

capital murder.

7. Homicide e145

Killing through use of deadly weapon

on vital part of body of victim is sufficient

to permit finding of intent to kill.

8. Criminal Law @412.1(1)

Evidence supported finding that during

course of deputy’s advising defendant of his

rights with regard to extradition, defendant

spontaneously volunteered inculpatory

statement, and therefore, since there was

no interrogation of defendant by deputy

sheriff when defendant made incriminating

statement and since statement was unsolic-

ited and volunteered, it was properly admit-

ted. U.S.C.A. Const.Amend. 5.

9. Criminal Law #359

Disconnected and remote acts, outside

crime itself, cannot be separately proved for

purpose of pointing up someone other than

accused, and evidence which can have no

other effect than to cast bare suspicion on

another, or to raise conjectural inference as

to commission of crime by another is not

admissible.

10. Criminal Law @=338(4)

Trial court ia capital murder prosecu-

tion properly excluded defendant's prof-

fered evidence of obscene telephone calls

received by victim during year prior to her

slaying; defendant’s suggestion that the

person responsible for calls may have been

the killer ignored his multiple admissions

that he choked, struck, slashed and stabbed

victim.

11. Criminal Law @=404(1)

Demonstrative evidence is admissible if

it throws any relevant light upon a material

matter in issue.

12. Criminal Law @=404(2)

Articles, instruments and weapons that

have tendency to explain manner in which

crime is committed that are found at or

near scene of crime are generally admissi-

ble.

13. Criminal Law @=404(2)

Articles, instruments and weapons that

have a tendency to explain manner in which

crime was committed and that are found at

or near scene of crime are usually held

admissible if tending to connect defendant

with crime, prove identity of deceased,

show nature of any wounds, or throw any

relevant light upon any material matter in

issue.

14. Criminal Law @404(4)

Victim was wearing cutoff jeans when

defendant followed her to apartment, and

articles of clothing, their condition, and lo-

cation within apartment supported State's

A-3

98 Mo.

theory that defendant was pursuing victim

and removing her clothing as he was at-

tacking her with knife, thereby supporting

admission of cutoff shorts, panties and

shoes discovered in victim's apartment.

15. Criminal Law e414

Sufficient evidence supported determi-

nation that defendant's inculpatory state-

ments were voluntary, refuting contention

by defendant that the statements were con-

stitutionally infirm because he had been

deprived of sleep, food and drink, and be-

cause of his physical and mental condition.

U.S.C.A. Const.Amend. 5.

16. Criminal Law @=438(1)

Trial court is vested with broad discre-

tion in admission of photographic evidence.

17. Criminal Law #=438(5)

Trial court in capital murder prosecu-

tion did not abuse its discretion in admit-

ting photographs of victim’s hands, portray-

ing the “defense wounds,” where coroner

had testified to nature of cuts to victim's

hands before he identified questioned pho-

tographs.

18. Constitutional Law * 266(3.1)

Fact that witnesses were allowed to

choose between only two photographs in

identifying alleged get-away vehicle did not

violate defendant's right to due process.

U.S.C.A. Const.Amends. 5, 14.

19. Criminal Law ¢=1206(2)

Homicide 354

Sentence of death was properly im-

posed on defendant convicted of capital

murder of 18-year-old victim; nothing in

record suggested sentence resulted from in-

fluence of passion, prejudice, or any other

arbitrary factor, there was substantial evi-

dence to support jury’s finding of statutory

aggravating circumstances, and penalty

was not excessive nor disproportionate to

penalty imposed in similar cases. V.A.M.S.

§ 565.014, subd. 3.

Donald C. Tiemeyer, St. Charles, for ap-

pellant.

A-k

648 SOUTH WESTERN REPORTER, 2d SERIES

John Ashcroft, Atty. Gen., Kelly Klopfen-

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

respondent.

BILLINGS, Judge.

Defendant Anthony J. LaRette, Jr., was

sentenced to death for the capital murder

of 18-year-old Mary Fleming. In this ap-

peal he contends he was denied his statuto-

ry right to a speedy trial; the evidence was

insufficient for the jury to find torture as

an aggravating circumstance; torture or

depravity of mind as aggravating circum-

stances gives the jury a roving commission

to return the death penalty; Missouri's

death penalty statutes are unconstitutional;

the evidence fell, short of demonstrating

deliberation and premeditation; the death

penalty is excessive and disproportionate in

. this case; and, the trial court erred in cer-

tain evidentiary rulings. We affirm.

{1] In our determination of whether

there was sufficient substantial evidence to

support the guilty verdict of capital mur-

der, we consider the facts in evidence and

all favorable inferences reasonably to be

drawn therefrom in the light most favor-

able to the State and disregard all contrary

evidence and inferences. State v. Franco,

544 S.W.2d 533 (Mo. bane 1977), cert. de-

nied, 431 U.S. 957, 97 S.Ct. 2682, 58 L.Ed.2d

275 (1977).

Mary Fleming lived with her mother and

sister in an apartment complex in St.

Charles, Missouri. Her mother left for

work about 6:30 a.m. the morning of July

25, 1980, and the sister left for work ap-

proximately thirty minutes later. The

mother exited the apartment by the back

door, locking it. The sister locked the front

door when she left the apartment. Mary

was still asleep.

A grocery store is located adjacent to the

apartment complex and at 10:30 a.m. Mary,

wearing a swimming suit bikini top and

cutoff jeans, cashed a check and purchased

groceries. She was seen walking towards

her apartment a short time later. During

this same time frame a cream-colored con-

vertible automobile had been seen slowly

circling the neighborhood. There was only

STATE v. LaRETTE

Cite as 648 S.W.2d 96 (Mo.banc 1983)

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the telephone and “it was kind of weird,”

she immediately dialed the Fleming number

again. There was no answer.

At approximately 11:00 a.m. a man, iden-

tified as defendant, was seen running from

the direction of the apartment complex to a

cream-colored convertible automobile which

was parked on the grocery store parking

lot. Defendant got into the vehicle and

drove away. At about the same time a

man and his wife who lived in another

apartment complex behind and across a

yard and street from the Fleming apart-

ment saw Mary running towards their

home. She was bloody and naked except

for the bikini top which had been pulled up,

exposing her breasts. She made it to the

front door of the neighbors’ apartment be-

fore she collapsed, bleeding profusely. Po-

lice and medical aid arrived shortly. De-

spite on-the-scene and hospital emergency

medical efforts, Mary died shortly thereaft-

er.

Death was attributed to the young blond

girl having bled to death. Her throat had

been cut from ear to ear by a sharp instru-

ment and photographic exhibits graphically

illustrate she was nearly decapitated. She

had two stab wounds to the chest, one of

which penetrated her lung, the second pene-

trating her heart. The second stab wound

had passed through the heart, leaving the

tip of a metal blade in her lung. Her

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unopened and blood splattered purse,

taining money, was on a coffee table.

hallway between the living room and

en was a trail of blood. Female

spotted with blood, were on the

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A partially completed green salad was on a

was dressed in light trousers and a button

shirt. He drove Roberson to work in Ro-

berson’s yellow Buick convertible and bor-

rowed the car “to go on a job interview”.

Defendant picked Roberson up at 1:15 p.m.

and at that time was dressed in a t-shirt

and cutoff jeans. Roberson never again

saw the clothing defendant was wearing

Friday morning.

Two days later, Sunday, Roberson drove

defendant to defendant's parents’ home in

Topeka, Kansas. As Roberson was leaving

for the return trip, defendant said: “If you

have any problems down there, call me and

I'll take care of them.” Roberson did not

know what defendant was talking about.

By Tuesday, July 29, Roberson became

concerned because of news articles which

appeared to link his convertible with the

killing. He called defendant in Topeka but

defendant was reluctant to talk about the

murder over the telephone. Further tele-

phone calls elicited admissions from the de-

fendant that he had killed the 18-year-old

girl. Defendant said he first saw the girl

when she was cashing a check at the gro-

A-5

cery store and he followed her back to

said he had

|

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4

seer

run. At the time of one of the telephone

conversations a police officer at Roberson’s

residence listened on an extension telephone

and heard the defendant say the knife

used was in the river and he planned to stay

away from his parents’ home for thirty days

until “the heat was off.”

St. Charles detectives first questioned de-

=

giving him Miranda’ warnings and having

him initial and sign a printed form which

explained his constitutional rights. When

he was asked about his involvement in the

crime he put his hands over his eyes and

said: “I'm responsible for her death.” In

this interview he told the officers he had

picked up a hitchhiker near Roberson’s

house and the hitchhiker asked him if he

would take him to the house of a girl who

owed him some money. He said he drove

the hitchhiker to a grocery store parking lot

and parked at the edge of the lot next to

some apartments. The hitchhiker got out

of the car and went into one of the apart-

ments. After waiting about 15 minutes he

got worried about the hitchhiker and went

to the front door of the apartment and

looked inside. He said the hitchhiker was

either standing or bending over a girl. The

girl was covered with blood. The hitchhik-

er was stabbing her while she was pleading

for her life. He said the hitchhiker ran out

of the front door of the apartment when he

entered it. He told the officers the girl’s

throat was cut but he wasn’t worried about

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

that too much because she wasn't gurgling,

but was worried about the stab wounds to

her chest and tried to apply direct pressure

to her chest to stop the bleeding. The girl

started fighting him and broke away and

ran out the back door. He had her blood all

over his hands, was scared, and ran out the

front door.

Later that morning at the Shawnee

County jail, a deputy sheriff was advising

defendant of his extradition rights. During

the course of this procedure the defendant

exclaimed: “I tried to choke her first but I

couldn’t. She promised not to scream, but

she lied to me. I caused an 18-year-old to

die.”

Defendant was returned to St. Charles

that day and interviewed again that eve-

ning. He was again advised of his constitu-

tional rights and signed another written

waiver. He told the officers he took the

hitchhiker to the girl’s apartment but said

that when he went to find the hitchhiker he

saw him either kneeling or laying on the

girl; that the hitchhiker’s pants were pulled

down and his buttocks exposed, and there

was blood all over the girl. In this version

he told the officers the hitchhiker ran out

the back door of the apartment. When the

officers related what witnesses had told

them about the convertible circling the

neighborhood and neighbors had seen only

Mary Fleming exiting via the back door,

defendant began crying and admitted there

was no hitchhiker and said “I did it.”

Defendant then told the officers he en-

tered the Fleming apartment by means of

an unlocked rear door to burglarize the

apartment. He first went downstairs and

then came back up the stairs and the victim

was standing in her living room and had

already removed her shorts. He had the

knife in his hand and grabbed her and told

her he did not want to hurt her, “not to

scream, that all he wanted to do was get

the hell out of there.” He said the girl

agreed not to scream and he let her go. He

said she started to scream and “[{T]hat is

when it happened. She lied to me. She

promised me she wouldn’t scream.” De-

1602, 16 L.Ed.2d 694 (1966).

A-6

STATE v. LaRETTE

Mo. 10]

Cite as 648 S.W.2d 96 (Mo.banc 1963)

fendant said she was just like “... all the

others. My wife and my mother-in-law al-

ways lied to me. If she hadn't lied to me it

wouldn't have happened.” Defendant then

told the officers he did not remember what

happened after the girl started screaming

and that he left by the front door and went

to Roberson’s car.

At trial defendant presented evidence but

did not testify.

Defendant was arraigned on November

21, 1980, in the Circuit Court of St. Charles

County and trial commenced in the Warren

County Circuit Court on August 11, 1981.

He contends he was denied his statutory

right to a speedy trial under § 545.780,

RSMo 1978.

At the time of defendant's arraignment,

the parties consented that the case be con-

tinued until December for the setting of

various motions. On January 7, 1981, de-

fendant filed a motion to dismiss or in the

alternative to compel the State to elect to

proceed on one of the alternative charges

{capital murder and/or murder in the first

degree) and this was followed by defend-

ant’s motion for a change of venue on Janu-

ary 14, 1981. The case was lodged in War-

ren County on January 27, 1981, and set for

trial on May 28, 1981. On April 20, 1981,

defendant filed a motion to remove the case

from the trial docket because the transcript

of his preliminary hearing had not been

completed, nor had the transcript of a de-

posed witness. The State consented to the

motion and the court, treating it as one for

continuance, found “[TJhe ends of justice

served by the granting of such continuance

outweighs the best interests of the public

and the defendant in a speedy trial” and

found that the transcript of the preliminary

hearing had not been made available to the

defendant and further discovery might be

necessary upon the transcript being com-

pleted. The case was reset for June 11,

1981. On June 3, 1981, the State filed a

motion to continue the case because the

transcript, being prepared from tape re-

2. The jury also found the non-statutory aggra-

vating circumstance that defendant had been

A-

cordings by the State Court Administrator's

Office, had not yet been completed. On the

same date the court entered an order con-

tinuing the case to August 11, 1981, the

order reciting the continuance was for the

same reasons as set forth in the formal

order of April 20, 1981.

[2] Section 545.780, RSMo 1978, express-

ly excludes periods of delay resulting from

hearings on pretrial motions, resulting from

a change of venue, and continuances based

upon findings by the trial court that the

ends of justice served by taking such action

outweigh the benefits of a speedy trial.

Here, the delays in bringing the defendant

to trial within the statutory 180 days were

attributable to delays occasioned by pre-tri-

al motions, change of venue, and continu-

ances because of the preparation of the

preliminary hearing transcript. The de-

fendant has failed to sustain his burden

that the failure to bring him to trial within

the statutory period was occasioned by the

State. State v. Franco, G25 S.W.2d 596

(Mo.1981); State v. Newberry, 605 S.W.2d

117 (Mo.1980).

Defendant avers there was insufficient

evidence for the jury to find torture as an

aggravating circumstance. He notes that

under § 565.012, RSMo 1980 Supp., the

death penalty cannot be imposed unless one

of the statutory aggravating circumstances

in that section is found by the jury. The

particular subparagraph of § 565.012.2(7),

which is applicable to this case provides:

The offense was outrageously or wan-

tonly vile, horrible or inhuman in that it

involved torture, or depravity of mind.

In this case the jury, in imposing the

death sentence, found the offense was out-

rageously or wantonly vile, horrible or inhu-

man because defendant's acts involved both

torture and depravity.’

[3] We believe the evidence surrounding

the brutal, heinous, and senseless slaying of

the 18-year-old victim in this case fully war-

ranted the jury to find both aggravating

convicted of rape in Kansas in 1974.

102 Mo.

circumstances, It is obvious that Mary

Fleming had ample opportunity to antici-

pate her death and her slaughter-type kill-

ing supports the further finding of depravi-

ty of mind. Her body bore mute and stark

evidence of the serious physical abuse and

pain and suffering she endured in her futile

struggle for life. The photographic exhib-

its, as well as the medical testimony, dem-

onstrate the bruising of her head and arm,

the cuts or defense wounds to her hands

and fingers, the stab wounds to her chest

and the near decapitation by reason of her

throat having been cut from ear to ear.

These matters and the physical evidence in

the apartment suggest she was pursued

from one end of the apartment to the other

as defendant struck, stabbed and slashed

her. A large pool of blood and her cutoff

jeans were on the living room floor. Blood

and hair were on the living room wall and

blood was splattered over various articles of

furniture in that room. There was blood on

the doorway between the living room and

kitchen, as well as on the floor of the hall-

way. Female panties, blood splattered,

were on the kitchen floor. The trail of

blood was evident on the rear door, across

the porch, and down the steps as the girl,

practically naked, made her way across the

street to the neighbor's front door.

[4,5] The State suggests the jury could

have well concluded that defendant was

describing what actually transpired when

he told the officers the phantom hitchhiker

was kneeling or laying on the girl with his

pants down and she was pleading for her

life as she was being repeatedly stabbed.

Aside from this, we are of the opinion the

evidence was sufficient and substantial to

support the finding of both statutory ag-

gravating circumstances. Mary Fleming

had no quick death and had substantial

time to contemplate her fate. State v.

Blair, 638 S.W.2d 739 (Mo. banc 1982). Fur-

thermore, as noted in State v. Mercer, 618

S.W.2d 1, 10 (Mo. banc 1981), where two or

more statutory aggravating circumstances

3. In addition to defendant's 1974 rape convic-

tion the evidence in the punishment phase of

the trial showed prior convictions for burglary,

theft and pocket picking. Section 565.006.2,

648 SOUTH WESTERN REPORTER, 2d SERIES

are found by the jury, the failure of one

circumstances does not taint the proceed-

ings so as to invalidate the other aggravat-

ing circumstance found and the sentence of

death thereon. Having found the threshold

requirements of statutory aggravating cir-

cumstances, the jury could also consider the

defendant's prior convictions*, including

rape, together with all of the evidence ad-

duced at trial, in imposing the death sen-

tence. State v. Stokes, 688 S.W.2d 715 (Mo.

banc 1982).

Defendant's contention that § 565.012-

27), RSMo 1980 Supp., is facially violative

of the United States and Missouri Constitu-

tions has been expressly considered and re-

jected by this Court. State v. Newlon, 627

S.W.2d 606 (Mo. banc 1982), cert. denied,

— US. ——, 108 S.Ct 185, 74 L.Ed.2d

149 (1982). Newlon and State v. Bolder,

635 S.W.2d 673 (Mo. banc 1982), likewise

rejected defendant’s further contention

that Missouri's death penalty fails to meas-

ure up to constitutional standards.

{6} Defendant next contends the evi-

dence was insufficient to demonstrate the

elements of deliberation and premeditation

necessary for capital murder. In State v.

Craig, 642 S.W.2d 98, 101 (Mo. banc 1982),

we said:

There need not be direct evidence of

premeditation and deliberation to support

a capital murder conviction; indirect evi-

dence and inferences reasonably drawn

from circumstances surrounding the mur-

der are sufficient. State v. Turner,

S.W.2d 4, 7 (Mo. banc 1981). Premedita-

tion is present if the accused reflects on

his act for any length of time prior to the

act. Deliberation is found when an act is

performed with a cool and deliberate

state of mind. Id. at 7; State v. Strick-

land, 609 S.W.2d 392, 394 (Mo. banc 1980).

The jury could reasonably find that de-

fendant, armed with a sharp, stilleto type

lock-blade knife, drove slowly around the

RSMo 1978. See: State v. Blair, 38 S.W.2d

739, 756 (Mo. banc 1982), cert. denied, —— U.S.

——, 103 S.Ct. 838, 74 LEd.2d 1030 (1983).

A-8

STATE v. LaRETTE

Mo. 103

Cite as 648 S.W.2d 96 (Mo.banc 1983)

neighborhood where the victim's apartment

was located looking for a female target;

that upon seeing the young and attractive

girl, attired in cutoff jeans and a bikini top,

he admittedly followed her to her apart-

ment for the express purpose of committing

a crime; that the jury could reasonably

find, contrary to his hitchhiker and burgla-

ry versions, that he entered the apartment

for the purpose of sexually assaulting the

girl. Such an inference can be drawn from

the physical facts observed in the apart-

ment. The obvious struggle in the living

room where her shorts were found. The

bloody trail to the kitchen where her pant-

ies were on the floor. The bikini top pulled

up, exposing her breasts. Defendant said

the victim lied to him because she promised

him she would not scream and because she

did scream he did “it”. This statement, in

itself, demonstrates defendant deliberated

his action prior to stabbing, cutting and

killing Mary Fleming.

(7] A killing through the use of a deadly

weapon on a vital part of the body of the

victim is sufficient to permit a finding of

intent to kill. Strickland, supra, at 394.

The jury could have found from the number

and serious nature of the knife wounds that

defendant was practically certain to cause

Mary Fleming’s death. And, the previously

demonstrated intent to kill provided delib-

eration. State v. Bolder, supra at 673.

On the record before us, the jury could

reasonably find defendant intended to take

the life of the girl and acted with the

necessary premeditation and deliberation.

[8] Defendant's complaint regarding the

dence was that during the course of the

deputy’s advising defendant of his rights

with regard to extradition, defendant spon-

taneously volunteered: “I tried to choke

her first, but I couldn’t .... She promised

not to scream, but she lied to me .... I

caused an 18-year-old girl to die.”

There being no interrogation of defend-

ant by the deputy sheriff when defendant

made the incriminating statement and the

statement being unsolicited and volun-

teered, it was properly admitted. Rhode

Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682,

64 L.Ed.2d 297 (1980); State v. O'Toole, 619

S.W.2d 804 (Mo.App.1981).

(9,10) The trial court properly excluded

defendant’s proffered evidence regarding

obscene telephone calls received by Mary

Fleming during the year prior to her slay-

ing. Disconnected and remote acts, outside

the crime itself, cannot be separately

proved for the purpose of pointing up some-

one other than the accused; and evidence

which can have no other effect other than

to cast a bare suspicion on another, or to

raise a conjectural inference as to the com-

mission of the crime by another is not ad-

missible. 22A C.J.S. Criminal Law § 622b

at 451; State v. Stokes, 638 S.W.2d 715 (Mo.

banc 1982); State v. Umfrees, 483 S.W.2d

284 (Mo. banc 1968). Defendant’s sugges-

tion that the person responsible for the

obscene telephone calls may have been the

killer ignores defendant's multiple admis-

sions that he choked, struck, slashed and

stabbed Mary Fleming.

104 Mo.

crime, prove the identity of the deceased,

shows the nature of any wounds, or throws

any relevant light upon any material mat-

ter in issue. State v. Williams, 606 S.W.2d

254 (Mo.App.1980). Mary was wearing cut-

off jeans when defendant followed her to

her apartment. The articles of clothing,

their condition, and location within the

apartment support the State’s theory that

defendant was pursuing his victim and re-

moving her clothing as he was attacking

her with his knife.

Defendant levels a double-barreled attack

on the trial court’s admitting his statements

to the St. Charles police officers who first.

questioned him in Topeka and later at St.

Charles. He first claims the statements

were constitutionally infirm because he had

been deprived of sleep, food and drink, and

his physical and mental condition; secondly,

his request to return to his cell in Topeka

because he was tired and hurting, was an

assertion of his right to remain silent and

the subsequent questioning at St. Charles

violated this right.

Out of the hearing of the jury, an eviden:

tiary hearing was conducted on the volun-

tary nature of defendant’s statements. De-

fendant did not testify but the court heard

the testimony of the St. Charles officers,

the stipulated testimony of a Topeka medi-

cal doctor, and had before it the waiver

forms executed by the defendant.

As a result of self-inflicted superficial

wounds and cuts, defendant was treated in

the emergency room of a Topeka hospital

late in the afternoon of August 6. He

remained at the hospital until shortly after

midnight and was taken by Kansas officers

to the Shawnee County jail. St. Charles

detectives went to the jail at about 3:00

a.m. and asked defendant if he felt up to

talking to them about a homicide in St

Charles on July 25. Defendant replied

“yes” and asked for and received a ciga-

rette. Miranda warnings were given and

defendant signed a “Constitutional Rights”

waiver form. After defendant had related

his first version of the hitchhiker being the

killer, he told the detectives “I’m tired and

I'm hurting and I would like to go back to

648 SOUTH WESTERN REPORTER, 2d SERIES

my cell.” No further questions were asked

and defendant was returned to his cell.

The interview had lasted approximately

thirty minutes.

The St. Charles officers picked defendant

up at the jail between 10:30 and 11:00 that

morning for the return trip to St. Charles.

On the trip the defendant slept most of the

five to six hours it took to drive from

Topeka to St. Charles. Enroute the defend-

ant requested and was given a soda. De-

fendant was lodged in the St. Charles jail

and at some point prior to his second ques-

tioning by the detectives he was given a

hamburger and coffee. The second inter-

view commenced about 7:40 p.m. and before

defendant was questioned he was again giv-

en the Miranda warnings and signed a

waiver form. At no time did the defendant

indicate he did not want to talk to the

officers, nor did he complain of being tired,

hungry, thirsty or in pain. The trial judge

found and determined that both statements

of the defendant were voluntarily given.

The jury was also instructed concerning the

issue of voluntariness and told to disregard

them if they found the statements were

made involuntarily.

{15] The record shows that defendant

was given the warnings required by Miran-

da on the two occasions he was interviewed

by the St. Charles detectives and that he

understandingly declined to exercise his

right to remain silent. State v. Hughes,

596 S.W.2d 723 (Mo. banc 1980). As stated

in Hughes, supra, at 726-27:

When a criminal defendant alleges that

his inculpatory statements, made while he

was held in custody, are not admissible

because involuntarily made, the state

must bear the burden of proving the vol-

untariness of the confessions. Miranda v.

Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602,

1630, 16 L.Ed.2d 694 (1966). A confession

is admissible if the stu'e proves by a

preponderance of the evidence that it was

voluntary. Lego v. Twomey, 404 U.S.

477, 482-87, 92 S.Ct 619, 623-25, 30

L.Ed.2d 618 (1972); State v. Olds, 569

§.W.2d 745, 751-52 (Mo. bane 1978). The

state must show that ‘defendant was ef-

A-10

STATE v. LaRETTE

Mo. 105

Cite as 648 S.W.2d 96 (Mo.banc 1983)

fectively advised of his rights and he then

intelligently and understandingly de-

clined to exercise them.’ State v. Alew-

ine, 474 S.W.2d 848, 851 (Mo.1971).

The determination of the voluntariness

of a statement is made in the first in-

stance by the trial court. The trial court

must determine the credibility of witness-

es, and where evidence is in conflict,

make factual findings. On appeal, the

question is ‘whether the evidence was

sufficient to sustain the trial court’s find-

ing that the statement was voluntarily

given.’ Alewine, 474 S.W.2d at 852.

We find there was sufficient evidence to

support the trial court’s determination that

defendant's statements were voluntary, and

to support a jury finding the defendant

made the statements freely and voluntarily.

{16,17] The trial court did not abuse its

discretion in admitting photographs of the

victim’s hands, portraying the “defense

wounds”. Defendant avers that the coro-

ner’s identification of the photographs as

pictures of Mary’s hands was based upon

only an identification bracelet which had

been placed on her wrist by medical author-

ities.

A series of colored photographs of Mary

Fleming’s bloody and mutilated body were

taken by police and received as exhibits.

The coroner had been advised of the vic-

tim’s name and after his examination filled

out the official death certificate. A com-

parison of the photographic exhibits clearly

show the hands depicted in exhibits 49 and

50 were a part of the series of photographs

of the body of the slain girl.

The trial court is vested with broad dis-

cretion in the admission of photographic

evidence. State v. Weekley, 621 S.W.2d 256

(Mo.1981); State v. Goodman, 608 S.W.2d

498 (Mo.App.1980); State v. Hines, 581

S.W.2d 109 (Mo.App.1979). Here, the coro-

ner had testified as to the nature of the

cuts to Mary’s hands before he identified

the questioned photographs. We find no

error.

(18) Defendant's final point of alleged

trial error is novel but without legal sup-

port. He contends: “The trial court violat-

ed the defendant's right to due process of

law when it admitted photographs of an

alleged get-away vehicle because the dis-

play of vehicles used by investigation offi-

cers was unduly suggestive in that the wit-

nesses were allowed to choose between only

two photographs.”

Defendant suggests we expand the con-

stitutional safeguards surrounding the iden-

tification of criminal defendants [Simmons

v. United States, 390 U.S. 377, 88 S.Ct. 967,

19 L.Ed.2d 1247 (1968)] to automobiles.

We decline to do so and find no error.

[19] We turn now to defendant’s con-

tention that the sentence of death in this

case is excessive and disproportionate.

The General Assembly has mandated that

this Court shall consider the matter of the

death sentence being imposed and requires

us to determine (§ 565.014.3, RSMo 1978):

(1) Whether the sentence of death was

imposed under the influence of passion,

prejudice, or any other arbitrary factor;

and

(2) Whether the evidence supports the

jury’s or judge’s finding of a statutory

aggravating circumstance as enumerated

in section 565.012; and

(3) Whether the sentence of death is

excessive or disproportionate to the pen-

alty imposed in similar cases, considering

both the crime and the defendant.

We find nothing in the record to suggest

the sentence resulted from the influence of

passion, prejudice, or any other arbitrary

factor. There was substantial evidence to

support the jury’s finding of statutory ag-

gravating circumstances. We conclude that

considering the instant crime and the de-

fendant in this case that the penalty im-

posed is not excessive nor disproportionate

to the penalty imposed in similar cases.

State v. Stokes, 638 S.W.2d 715 (Mo. banc

1982).

The judgment is affirmed. °

RENDLEN, C.J., and HIGGINS, GUNN

and DONNELLY, JJ., concur.

WELLIVER, J., concurs in result in sepa-

rate opinion filed.

A-11

106 Mo.

ROBERT E. SEILER, Senior Judge, con-

curs in part and dissents in part in separate

opinion filed.

BLACKMAR, J., not participating because

not a member of the Court at the time the

cause was submitted.

Execution date set for May 13, 1983.

WELLIVER, Judge, concurring in result.

I concur in most of the principal opinion’s

reasoning and in its result. I am unable,

however, to concur except as to the result

in that part of the principal opinion that

addresses appellant’s argument that the ev-

idence was insufficient to support the jury's

finding of the statutory aggravating cir-

cumstance.

The death penalty may not be imposed

unless the jury finds beyond a reasonable

doubt one of the twelve statutory aggravat-

ing circumstances. § 565.012(4)-(5), RSMo

Supp. 1982! Those aggravating circum-

stances are enumerated in § 565.012(2). In

this case the trial court instructed the jury

on only one aggravating circumstance: that

the murder “involved torture or depravity

of mind and that as a result thereof it was

outrageously or wantonly vile, horrible or

inhuman.” That instruction was taken

from § 565.012(2\7), which provides as a

statutory aggravating circumstance that

“[t]he offense was outrageously or wanton-

ly vile, horrible or inhuman in that it in-

volved torture, or depravity of mind.” Ap-

pellant makes no argument regarding the

fact that the trial court inverted the lan-

guage of the statute, but in any event I do

not believe that fact has any bearing upon

this case. The jury found as a statutory

aggravating circumstance that the murder

involved “[tjorture, depravity of mind and

that as a result it was outrageous and wan-

tonly vile, horrible and inhuman.” Appel-

lant’s argument is unclear, but it appears to

be that the evidence was insufficient to

support a finding of torture and that be-

cause the jury did not find “torture or

depravity of mind” in the disjunctive lan-

guage of the statute the lack of evidentiary

support vitiates the finding of the statutory

aggravating circumstance.

1, All statutory references are to RSMo Supp.

648 SOUTH WESTERN REPORTER, 2d SERIES

I agree with the principal opinion that

appellant's argument is without merit, but I

reach that conclusion for a different reason.

Neither torture nor depravity of mind con-

stitutes the aggravating circumstance. The

aggravating circumstance is that the mur-

der is “outrageously or wantonly vile, horri-

ble or inhuman.” The murder possesses

that quality, the statute says, because it

involves torture or depravity of mind.

Thus, a finding of at least one—either tor-

ture or depravity of mind—is prerequisite

to a finding of the aggravating circum-

stance. Here the jury found the aggravat-

ing circumstance. That it so found because

it apparently thought the murder involved

both torture and depravity of mind is incon-

sequential. I agree with the principal opin-

ion that the evidence supports a finding of

both, but only a finding of one or the other

was necessary to a finding of the aggravat-

ing circumstance. There was no error.

I disagree with the principal opinion for

two related reasons. First, it characterizes

§ 565.012(2\7) as comprising two statutory

aggravating circumstances rather than one.

According to the principal opinion, torture

and depravity of mind constitute separate

aggravating circumstances. I believe, as

demonstrated above, that the statutory lan-

guage itself forecloses that reading.

Second, having made that characterization,

the principal opinion states that the evi-

dence was sufficie | to support a finding of

“both statutory aggravating circumstanc-

es,” and then it goes on to conclude that in

any event “where two or more statutory

aggravating circumstances are found by the

jury, the failure of one circumstance does

not taint the proceedings so as to invalidate

the other aggravating circumstance found

and the sentence of death thereon.” I

think this latter statement is both unneces-

sary and unwise.

The question whether the failure of one

statutory aggravating circumstance found

by the jury vitiates the death sentence is

not present in this case. It is, however,

pending before the United States Supreme

Court. See Zant v. Stephens, 456 U.S.

A-12

STATE v. LaRETTE

Mo. 107

Cite as 648 S.W.2d 96 (Mo.banc 1983)

410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982).

In Zant the Supreme Court certified to the

Georgia Supreme Court the following ques-

tion: “What are the premises of state law

that support the conclusion that the death

sentence in this case is not impaired by the

invalidity of one of the statutory aggravat-

ing circumstances found by the jury?” Id.

at 1859. The Georgia Supreme Court has

answered that question by stating that

[a] case may not pass the second plane

into that area in which the death penalty

is authorized unless at least one statutory

aggravating circumstance is found.

However, this plane is passed regardless

of the number of statutory aggravating

circumstances found, so long as there is

at least one. Once beyond this plane, the

case enters the area of the factfinder’s

discretion, in which all the facts and cir-

cumstances of the case determine, in

terms of our metaphor, whether or not

the case passes the third plane and into

the area in which the death penalty is

imposed.

Zant v. Stephens, 250 Ga. 97, 100, 297

S.E.2d 1, 4 (1982). Our cases accept a simi-

lar rationale underlying the use of statutory

aggravating circumstances. See State v.

Shaw, 636 S.W.2d 667, 675 (Mo.banc), cert.

denied, —— US. ——, 103 S.Ct. 239, 74

L.Ed.2d 188 (1982); State v. Bolder, 635

S.W.2d 673, 682 (Mo. banc 1982), cert. de-

nied, — U.S. ——, 108 S.Ct. 770, 74

L.Ed.2d 983 (1983). Nevertheless, we have

never decided the question that the princi-

pal opinion would purport to decide. In

State v. Mercer, 618 S.W.2d 1, 10 n. 5 (Mo.

banc), cert. denied, 454 U.S. 933, 102 S.Ct.

432, 70 L.Ed.2d 240 (1981), we noted the

Georgia Supreme Court’s position on the

issue, but we also noted that there is con-

siderable authority to the contrary. The

evidence in that case fully supported both

of the aggravating circumstances that the

jury found, id. at 10, and thus there was no

issue of the failure of one of the aggravat-

ing circumstances.

The principal opinion’s statement is of

course only dictum, but it nevertheless is a

strong dictum.

I think it imprudent in

advance of necessity to decide the issue it

purports to settle, especially by making

such an unqualified statement. In Zant the

Georgia Supreme Court refused to adopt

such an unconditional holding. That court

stated that

[a] different result might be reached in

a case where evidence was submitted in

support of a statutory aggravating cir-

cumstance which was not otherwise ad-

missible, and thereafter the circumstance

failed. Furthermore, this court must

consider each case involving a failure of

one or more of a multiple of statutory

aggravating circumstances to determine

whether, because of the failure, the sen-

tence was imposed under the influence of

an arbitrary factor.

250 Ga. at 101, 297 S.E.2d at 4.

We should not be quick to speak to this

important issue. We should await a case in

which the question is squarely presented so

that we can give it full consideration. Per-

haps by that time, too, we will have the

guidance of the Supreme Court’s final deci-

sion in Zant.

ROBERT E. SEILER, Senior Judge, con-

curring in part and dissenting in part.

I concur with that portion of the principal

opinion which affirms the conviction of cap-

ital murder, but I respectfully dissent with

respect to affirmance of the death penalty.

My problem with the principal opinion in

this regard is that it does not, in my opin-

ion, demonstrate that the sentence of death

is not excessive or disproportionate to the

penalty imposed in similar cases, consider-

ing both the crime and the defendant.

If there is anything clear it is that for a

death penalty statute to be valid, the stat-

ute must provide a “principled way to dis-

tinguish this case, in which the death penal-

ty was imposed, from the many cases in

which it was not.” Godfrey v. Georgia, 446

U.S. 420, 433, 100 S.Ct. 1759, 1767, 64

L.Ed.2d 398 (1980); See also Proffitt v.

Florida, 428 U.S. 242, 258, 96 S.Ct. 2960,

2969, 49 L.Ed.2d 913 (1976) (opinion of

Stewart, Powell, and Stevens, JJ.) (“similar

108 Mo.

results ... in similar cases”); Furman v.

Georgia, 408 U.S. 238, 318, 92 S.Ct. 2726,

2764, 33 L.Ed.2d 346 (1972) (White, J. con-

curring) (“meaningful basis for distinguish-

ing the few cases in which it is imposed

from the many cases in which it is not”);

Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct.

2954, 2965, 57 L.Ed.2d 973 (1978) (“we can-

not avoid the conclusion that an individual-

ized decision is essential in capita] cases”);

State v. Baker, 636 S.W.2d 902, 911 (Mo.

banc 1982) (“After examining these cases

{referring to other cases] and giving to each

of them the individualized consideration re-

quired ... we find that they do not point to

excessiveness or disproportionality in the

sentence in this case.”)

The response of the Missouri legislature

to the above requirement was to enact

§ 565.014.3(3)' which imposes on the court

the duty of determining “whether the sen-

tence of death is excessive or disproportion-

ate to the penalty imposed in similar cases,

considering both the crime and the defend-

ant” and § 565.014.5(2) which authorizes us

in instances of excessiveness or dispropor-

tionality to set the death sentence aside and

remand for resentencing, as we did in State

v. MclIlvoy, 629 S.W.2d 333, 342 (Mo. banc

1982).

The principal opinion disposes of this as-

pect of the appeal with a single sentence at

the close of the opinion, stating the conclu-

sion that the penalty imposed is not exces-

sive or disproportionate and citing, without

elaboration, State v. Stokes, 638 S.W.2d 715

(Mo. bane 1982).

In Stokes, a thirty-three year-old divor-

cee, mother of three children, was found

dead on the floor of her bedroom, nude,

with a pillow case over her head and an

apron wrapped around her neck, three days

after she and defendant had left a bar

together one night to go to her apartment.

Her apartment was in disarray, with the

bedroom ransacked. Her pendant watch

and her automobile were missing.

The autopsy disclosed the following:

1. All statutory references are to RSMo 1978.

648 SOUTH WESTERN REPORTER, 2d SERIES

“ .. a shallow ineision, over the left

upper chest just beneath the clavicle, that

was two inches in length, one and one-

half inches in width and just beneath the

skin; a cut on the back of the right hand;

a cut on the surface of the hand; a deep

cut over the back; a large cut in the

posterior aspect of the lower third of the

right arm which measured three inches in

length, one-half inch wide and two inches

deep, extending to the bone; a large area

of bruising that was slightly raised and

purple over the left side of the chest; a

large bruise internally over the left side

of the chest; numerous bruises and abra-

sions on both sides of the neck, some

irregular, and others in a straight line

running around to the posterior aspect of

the neck; the right side of the lips were

swollen and dark purple; dried blood was

present in and outside the nose; several

scrapes or abrasions were present on the

face, one on the right side of the nose and

another on the right temple; multiple

areas of hemorrhage within the neck

muscles; areas of fresh hemorrhaging in

the thyroid gland and in the larnyx; one

of the angles of the hyoid bone had been

broken recently; a rather large abrasion

over the back and sacrum; a superficial,

one-fourth inch deep cut into the subcuta-

neous fat on the right chest in the shape

of a round puncture; and, a slight abra-

sion to the right knee; liver mortis was

evident; examination of the vagina re-

vealed spermatoza and it was thought

that the victim had sexual intercourse

within six hours of death; that the cause

of death was manual strangulation al-

though some linear abrasions apparently

had been caused by the a) ron; that the

victim was alive at the time of injury to

the chest area as reflected by the condi-

tion of the resultant bruises; and, that

death had occurred more than one day

prior to the autopsy.

The defendant, Stokes, had an extensive

record of prior convictions: one manslaugh-

ter, one second degree murder, three first

degree robberies, three escapes, armed

criminal action and theft of an automobile.

A-14

STATE v. LaRETTE

Mo. 109

Cite as 648 S.W.2d 96 (Mo.banc 1983)

The jury assessed the death penalty and

found four statutory aggravating circum-

stances:

1. Substantial history of serious as-

saultive convictions. § 565.012.2(1).

2. Murder for purpose of receiving

something of value. § 565.012.2(4).

3. Murder involving torture or de-

pravity and as result thereof outrageous-

ly or wantonly, vile, horrible or inhuman.

§ 565.012.2(7).

4. At the time of the murder defend-

ant had escaped from custody. § 565.-

012.2(9).

In deciding the proportionality question

of the death penalty the court first pointed

out that the evidence supported the finding

of the four specified statutory aggravating

circumstances above. The court then re-

turned to the “torture or depravity of

mind” aggravating circumstance and divid-

ed the evidence on this aggravating circum-

stance into four types of acts:

1. The severe beating of the victim

about the head and upper chest.

2. The five stab wounds caused by a

sharp instrument.

38. The apron wrapped around the

neck with minor linear lacerations in the

flesh, indicating that the murderer at-

tempted to strangle the victim by tight-

ening the apron in garrotte like fashion.

The court pointed out the evidence was

that all of the above injuries were sustained

while the victim was yet alive.

4. Manual strangulation of the victim,

as shown by violent internal damage to

the neck, thus exaggerating the serious

physical abuse inflicted prior to actual

death.

When we consider both the crime and the

defendant, Stokes and the present case are

dissimilar. Stokes had such a bad previous

record that he fell in the class of those who

have a substantial history of serious as-

2 matt present case the jury did find as a

nonstatutory aggravating circumstance the fact

that defendant had been convicted of rape in

Kansas in 1974. The record contains no infor-

mation as to the degree of rape, its severity, the

age or condition of the victim or the length of

saultive convictions. In the present case

the state did not even attempt to make such

a charge against defendant and there was

no evidence to support such a charge? In

addition, Stokes murdered to obtain some-

thing of value and did so at a time when he

was an escapee. As to the torture and

depravity comparison, the victim in the

Stokes case had been badly beaten about

the head and chest, had been stabbed at

least five times, had been subjected to an

attempted garrotting by tightening of an

apron around her neck, violent enough to

leave linear imprints in her flesh, and then

had been manually strangled with force

sufficient to produce internal hemorrhaging

in the neck and fracture of the hyoid.

In the present case there was testimony

as to bruises or contusions on the victim’s

forehead and right arm, but no contention

is made that the victim was beaten as in

Stokes. The autopsy disclosed two direct

stab wounds to the chest, one of which

penetrated both ventricles of the heart and

which the pathologist testified “most as-

suredly would have caused death.” The

other stab wound was into the upper lobe of

the left lung. In addition the victim’s

throat was cut, a wound which might not

have caused death had prompt medical at-

tention been available, according to the pa-

thologist. As it was, the victim bled to

death, almost a gallon of blood being found

in the left chest. Vaginal examination dis-

closed no evidence of recent sexual activity.

Presumably the Stokes jury relied on all

four statutory aggravating circumstances

in assessing the death penalty. In the

present case there was only one statutory

aggravating circumstance. The factors

which the court relied upon to uphold the

death penalty in Stokes have not been dem-

onstrated to be present in the case at bar.

If Stokes is the bench mark, this case does

not meet it.

sentence. The sentence could not have been

too severe, as defendant obviously was out of

prison in 1980. So far as rape itself is con-

cerned, a death sentence for rape would be

unconstitutional. Coker v. Georgia, 433 U.S.

584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

A-15

110 Mo.

The main thing which the Stokes case

and the present case have in common is that

in each the jury found the statutory aggra-

vating circumstance of § 565.012.2(7)—the

one involving torture or depravity of mind.

Some of our statutory aggravating circum-

stances permit an objective determination,

such as, for example, whether the capital

murder is committed for something of val-

ue, or against a police officer on duty, or by

one who is an escapee at the time. But the

one about the offense “being outrageously

or wantonly vile, horrible or inhuman in

that it involves torture or depravity of

mind” calls for a subjective analysis on the

part of the jury of terms which are emo-

tionally provocative. Juries have no way to

see how the crime before them and the

imposition of the death penalty therefor

compares to similar cases. Only this court

is in a position to do that. I take it that the

principal opinion is not meant for the prop-

osition that where a jury in one case finds

the statutory aggravating circumstance of

§ 565.012.2(7) and assesses the death penal-

ty it follows that the death penalty is not

excessive or disproportionate simply be-

cause another jury in some earlier case also

found the same class of aggravating cir-

cumstance and assessed the death penalty.

The principal opinion certainly makes no

such declaration and if we were to find lack

of disproportionality from the mere fact

that both the jury here and the jury in

Stokes found the same class of statutory

aggravating circumstance—torture and de-

pravity, then we would end our inquiry

before it even began. We would be placing

absolute control in the hands of the jury so

long as it finds the same class of aggravat-

3. If we were to include in our universe or pool

of cases for comparison, cases where the state,

for some unstated reason, did not seek the

death penalty, we would be hard put to find

similar results in similar cases. We would be

confronted with cases such as State v. Holmes,

609 S.W.2d 132 (Mo. banc 1980) and State v.

Hudgins, 612 S.W.2d 769 (Mo.1981). In

Holmes, the defendant stabbed his sixteen

year-old victim at least sixty four times with an

ice pick like instrument, including nine sepa-

rate wounds to the heart—torture and depravi-

ty in the extreme. Defendant had three days

earlier announced his intention to kill the vic-

648 SOUTH WESTERN REPORTER, 2d SERIES

ing circumstance as found in some other

case where the death penalty was affirmed.

This sort of unbridled jury discretion in

sentencing to death would violate due proc-

ess, as established by the cases cited at the

outset hereof. The jury was the sole deter-

miner before Furman; it cannot be so now.

The statute enjoins this court to look at

“similar cases, considering both the crime

and the defendant.” The crime, of course,

is the capital murder itself—what took

place, what the defendant did. As for

“similar”, according to Webster’s Third

New International Dictionary (1967), p.

2120, it means having characteristics in

common, alike in substance or essentials.

All capital murders are alike in having the

essentials called for by the statute defining

the crime, § 565.001, and, factually, all have

the characteristic of being worse than an

ordinary homicide.

There is a vast array of capital murder

cases in Missouri where what took place

was equally or more revolting than what

took place in the case at bar—cases which

involve more killings, more stabbing, more

blood, more callousness, more the mark of

the beast—yet the punishment assessed was

not death, but life imprisonment without

possibility of parole for fifty years. Many

of these are capital murders where stabbing

and cutting have been the cause of death

and where the state has sought the death

penalty? with the aggravating circum-

stance of torture or depravity under § 565.-

012.2(7) being submitted to the jury. Oth-

ers involve capital murders by shooting.

Making comparisons with similar cases

involves a subjective analysis on our own

tim, even specifying that he would do it by

stabbing him some sixty odd times. In Hud-

gins, defendant's landlord died from loss of

blood after defendant stabbed her twenty-one

times as well as strangling her. Some of the

wounds were seven inches deep. Defendant

then strangled her six year-old son with an

extension cord and placed the body in a bath-

tub filled with water. In both these cases the

penalty was not death, but life without parole

for fifty years. It is difficult to reconcile the

outcome in these cases with the outcome in the

present case.

A-16

STATE vy. LaRETTE

Mo. ]]]

Cite as 648 S.W.2d 96 (Mo.banc 1983)

part, but we have the time and the means

by which to compare cases and then articu-

late why or what it is that causes us to

reach the end result. Where do we find

ourselves as to excessiveness or dispropor-

tionality of the death sentence in the

present case when we compare it to these

many cases, some of which are set forth

briefly below, where the jury assessed not

death, but life without parole for fifty

years?

In State v. Mitchell, 611 S.W.2d 223 (Mo.

banc 1981) and State v. Turner, 623 S.W.2d

4 (Mo. banc 1981), defendants were each

found guilty of two counts of capital mur-

der. They robbed a liquor store and killed

the proprietor, age 72, and his employee,

age 60. Both victims had heen stabbed, one

six to eight times in the chest and abdomen,

and the other fifteen times, nine in the

front part of the body and six in the back.

Both victims also had severe wounds to the

head from a blunt instrument such as a

beer bottle or gun butt. In the Mitchell

case, the jury was unable to agree on pun-

ishment and so, under § 565.006.2, defend-

ant was sentenced to life without parole for

fifty years on each count. In Turner, the

jury assessed punishment on each count at

life without parole for fifty years, not

death.

In State v. Fuhr, 626 S.W.2d 379 (Mo.

1982), defendant, age 23, killed a forty-

three year-old woman. The victim was

stabbed twenty-nine times with a butcher

knife. Money, a wallet, and rings were

taken from the victim. The robbery was

planned by the victim’s daughter who asked

the defendant to help. Some of the stab

wounds had a depth of seven inches. The

jury convicted defendant of capital murder

and assessed the punishment not at death,

but at life without parole for fifty years.

The case was reversed and remanded for

failure to instruct on first degree murder in

the commission of robbery. Nevertheless,

the jury’s assessment of life rather than

death establishes what the maximum pun-

ishment can be in this case on retrial in

event of conviction of capital murder.

Bullington v. Missouri, 451 U.S. 430, 101

S.Ct. 1852, 68 L.Ed.2d 270 (1981). The case

therefore, is properly one for comparison.

In State v. Hurt, No. 64213, pending in

this court, the defendant, age 19, an inmate

in the state penitentiary, stabbed his 21

year-old cellmate to death with a knife.

There were more than sixty stab wounds.

The jury assessed punishment not at death,

but at life without parole for fifty years. I

realize this case has not been decided, but in

other cases, we have referred to the facts in

pending cases in determining proportionali-

ty. See State v. Shaw, 636 S.W.2d 667, 676

(Mo. banc 1982), where the court referred to

the then pending case of State v. Trimble

[638 S.W.2d 726 (Mo. banc 1982) ] as a case

involving the same aggravating circum-

stance as the Shaw case and one where the

jury imposed the death penalty. Footnote 4

in the Shaw opinion points out that “We

consider this case only to determine what

penalty juries have imposed in factually

similar situations” and cited State v. Bold-

er, 635 S.W.2d 673, 685 (Mo. banc 1982) in

support. Footnote 8 in the Shaw case re-

fers to State v. Baker, which had been

argued and not yet decided at the time of

Shaw (the jury imposed the death sentence

in the Baker case) and also referred to

another case pending here at the time but

not yet argued, State v. Davis, No. 63474,

where the jury assessed life without parole

for fifty years, pointing out that the Davis

case had evidence of extreme mental or

emotional disturbance, something not

present in Shaw. 636 S.W.2d at 676. In

State v. Baker, mentioned above, 636

S.W.2d 902, 910 (Mo. bane 1982), the court,

in considering proportionality of the aggra-

vating circumstance of killing a police offi-

cer on duty, referred to State v. Davis, then

pending in this court and which involved

the same aggravating circumstance.

In State v. Laws, No. 63911, also pending

in this court, defendant, age 31, with others,

stabbed, choked and burned a 58 year-old

man. The victim was kicked in the face,

stabbed, and burned, although it could not

be determined whether the victim was

burned alive or was already dead. The

victim was held hostage during the crime.

The jury assessed punishment, not at death

but life without parole for fifty years.

A-17

112 Mo. 648 SOUTH WESTERN REPORTER, 2d SERIES

In State v. Scott, No. 63989, recently

transferred to the court of appeals, defend-

ant, age 16, stabbed to death a 60 year-old

woman. Defendant and another man

forced their way into the victim’s home at

gunpoint to rob the victim and her 88 year-

old husband. While inside the house, de-

fendant systematically stabbed the victim

twenty-two times, tore out patches of her

hair and scalp, and kicked her as she lay

dying. The jury assessed punishment, not

at death, but at life without parole for fifty

years.

In State v. Woods, No. 62378, recently

transferred to the court of appeals, defend-

ant, age 25, stabbed to death a 21 year-old

woman. The victim was stabbed seven or

eight times. The jury assessed punishment

not at death, but at life without parole for

fifty years.

There are other Missouri cases where

death is due either to shooting or stran-

gling, not stabbing, and the statutory ag-

gravating circumstance of torture or de-

pravity has been submitted to the jury, yet

the outcome has been life without parole

for fifty years, not the death sentence. For

example, in State v. Gardner, 618 S.W.2d 40

(Mo.1981), defendant, age 24, participated

with George Mercer [see State v. Mercer,

618 S.W.2d 1, 11 (Mo. bane 1981)], in the

strangulation killing of a 23 year-old wom-

an. Defendant brought the victim to a

house where Mercer was staying. Mercer

forced the victim into a room where he

raped her. Gardner subsequently raped her

also. Gardner left the house saying that

Mercer should kill the victim. Mercer

strangled the victim to death and disposed

of her body. As said, Gardner’s punishment

was fixed at life without parole for fifty

years, not death.

In State v. Borden, 605 S.W.2d 88 (Mo.

banc 1980), defendant, a 35 year-old woman,

was convicted of the slaying of her hus-

band. She fired a sawed-off .22 caliber

rifle at him in his home where he was

watching television. The couple's two small

children were in the house at the time. At

the time of the killing, defendant was en-

gaged in an illicit romance. She had previ-

ously attempted to persuade her paramour

to kill her husband.

In State v. Bostic, 625 S.W.2d 128 (Mo.

1981), defendant, age 35, struck and killed a

56 year-old woman. The victim was struck

twice on the head with a pipe, dragged

down the alley and loaded in a van. The

defendant stepped on the victim’s throat

when she regained consciousness. The body

was left in a ditch outside the town. De-

fendant also assaulted deceased sexually.

The jury, instructed on the depravity of

mind aggravating circumstance, put the

punishment at life without parole for fifty

years, not death.

In State v. Laws, No. 63983, recently

transferred to the court of appeals, Laws,

age 31, in concert with another, held hos-

tage for more than an hour, shot and

burned an 85 year-old woman while in the

process of a burglary. The victim was also

struck at least once in the head. The trial

judge commented that the death sentence

would have been appropriate had the jury

elected to assess it. Instead, the jury as-

sessed punishment at life without parole for

fifty years.

State v. Baskerville, 616 S.W.2d 839 (Mo.

1981) is a good example of the lack of

consistency in assessment of punishment for

capital murder in this state when we com-

pare cases. In Baskerville, the defendant

was convicted of three counts of capital

murder. The state sought the death penal-

ty. One victim was shot twice, one was

shot once, and a third, a child who begged

for his life, was shot once. The jury, how-

ever, assessed punishment at life without

parole for fifty years for the murders of the

two adults, and the jury being unable to

agree upon punishment for the capital mur-

der of the child, the court assessed the same

sentence in his case.

In its brief the state stresses that the

death penalty should be sustained because

the victim had “an opportunity to contem-

plate her fate” in that she was chased

through her home. Yet in State v. Royal,

610 S.W.2d 946 (Mo. banc 1981), which was

one of the cases used by the court for

comparison purposes in State v. Newlon,

627 S.W.2d 606, (Mo. banc 1982), the

victim, a woman employee of the bank in

A-18

KING v. LACLEDE GAS CO.

Mo. ]]3

Cite as 648 S.W.2d 113 (Mo.banc 1983)

Neeleyville, was abducted during the bank

robbery, forced into the car and driven to a

remote rural area of Butler County where

she was shot three times. The lengthy ride

must have been increasingly terrifying and

ominous to the helpless victim. The jury,

however, assessed punishment at life with-

out parole for fifty years, not death.

In discharging our duty to see that the

sentence of death is not disproportionate to

the penalty imposed in similar cases, we

have stated “Our concern is that there be

‘even-handed, rational and consistent impo-

sition of death sentences under law’. Jurek

v. Texas, 428 U.S. 262, 276 [96 S.Ct. 2950,

2958, 49 L.Ed.2d 929 (1976)”, State v. Bold-

er, 635 S.W.2d 673, 684-85 (Mo. bane 1982).

I fail to see where the present case has been

distinguished in a principled or meaningful

way from the many cases above where the

homicide was just as bad or worse, yet the

jury elected life without parole for fifty

years as punishment, not death. If we for

whatever reason, do not make the distinc-

tion (and I do not believe it can be made

here), then I do not believe the death penal-

ty can stand in the particular case under

consideration. I would therefore set aside

the death sentence and remand for sentenc-

Richard A. KING, Director of Revenue,

State of Missouri, Appellant,

v.

LACLEDE GAS COMPANY, et

al, Respondents.

No. 64265.

Supreme Court of Missouri,

En Banc.

March 29, 1983.

Concurring Opinion April 26, 1983.

Rehearing Denied April 26, 1983.

Department of Revenue appealed from

an order of the Administrative Hearing

Commission granting a sales tax exemption

to gas utility. The Supreme Court, Billings,

J., held that the electricity used by gas

utility for the operation of an underground

storage field was not exempt from the sales

tax on electricity on the grounds that the

electricity was used in a noncommercial,

nondomestic, and nonindustrial manner,

where the use of the electricity was an

integral part of the commercial activities of

utility, and the facilities were essential to

the utility’s successful commercial opera-

tion.

Reversed.

Welliver and Donnelly, JJ., dissented

and filed opinions.

Blackmar, J., concurred and filed opin-

ion.

1. Administrative Law and Procedure

7%

Administrative agency decisions based

on agency’s interpretation of law are mat-

ters for the independent judgment of the

reviewing court.

2. Statutes 245

Tax statutes are to be strictly con-

strued in favor of taxpayer.

3. Taxation @1244

Electricity used by gas utility in its

operation of underground storage field was

not exempt from sales tax on ground that

the electricity was used in a noncommercial,

nondomestic and nonindustrial manner,

since the electricity used was integral part

of commercial activities of utility, and facil-

ities were essential to utility’s successful

commercial operation; overruling Kansas

City Power and Light Co. v. Smith , 342 Mo.

75, 111 S.W.2d 513, and Kansas City Power

and Light Co. v. Kansas City Public Service

Company, 342 Mo. 45, 111 S.W.2d 516.

V.A.MLS. § 144.020, subd. 1(3).

John Ashcroft, Atty. Gen., Melodie A.

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

appellant.

A-19

IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI,

Plaintiff-Respondent,

vs. No. 63569

ANTHONY J. LaRETTE, JR.,

— et eee ee ee

Defendant-Appellent.

MOTION FOR REINEARING

APPELLANT'S BRIEF

(In forma pauperis)

Donald C. Tiemeyer

408 Jefferson Street

St. Charles, Missouri 63301

ATTORNEY FOR APPELLANT

IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI,

Plaintiff-Respondent,

vs. No. 63569

ANTHONY J. LaRETTE, JR.,

Defendant-Appellent.

MOTION POR REILEARING

APPELLANT'S BRIEF

(In forma pauperis)

Appellant moves this Honorable Court for a rehearing in the above cause on the

following grounds:

L The Court in its opinion of March 29, 1983, inadvertently misinterpreted and

overlooked the law and facts of this case by holding that "the Defendant has failed to

sustain his burden that the failure to bring him to trial within the statutory period was

occasioned by the State. State vs. Franco, 625 S.W.2d 596 (Mo. 1982); State vs.

Newberry, 605 S.W.2d 117 (Mo. 1980)." (Majority opinion page 7, 8). For the reason that

Section 545.780 of the Revised Statututes of Missouri, and specifically Subsection two (2)

thereof requires, mandatorily, that trial shell commence within 180 days of

arraingme.it. The transcript of Court proceedings clearly demonstrates that the delay

herein was occasioned by the failure of the State Court Administrators Office to prepare

and provide to the Defendant, pursuant to Supreme Court Rule, a copy of the transcript

of the preliminary hearing herein. The true cause of the cotinuance is clearly

demonstrated and the Court has inadvertently misinterpreted the Defendant's role in

each such continuance as being excusable delay, as provided for in Section 545.780 of the

Revised Statutues of Missouri, subsection Sa, when in fact the Defendant was placed in

the Hobson's Choice of either proceeding to trial without the preliminary hearing

transcript, which he was entitled to receive pursuant to Supreme Court Rules and

decisions of this Honorable Court, or to request a continuance The continuance granted

was clearly not occasioned by any act on the part of the Defendant.

2. The Court in its opinion of March 29, 1983, inadvertently misinterpreted an

overlooked the law and the fects of this case by holding that, “aside from this, we are of

the opinion the evidence was sufficient and substantial to support the finding of both

statutory aggravating circumstances.” (Majority opinion page 9) for the reason that this

finding is in conflict with Section 565.012 of the Revised Statutes of Missouri in that

“torture or depravity of mind" constitute, jointly, one of the statutory agrravating

circumstances. The facts herein do not support the finding of depravity of mind and the

facts relic | upon to support the finding as to torture clearly would equally, and probably

more logically, support a theory of flight after the infliction of a serious wound. The

death of a human being almost, of necessity, involves certain physical violence being

done to the body and equally, most usually, involves a significant amount of pain and

suffering. The decision of the State Legislature of the State of Missouri to provide for

capital punishment in Missouri clearly recognizes that capital punishment is to be applied

in the limited number of cases, most particularly those cases where there is exceptional

violence or physical injury and suffering. The Court's majority opinion overlooks the

serious question, nationwide, of whether or not the mere killing of another human being,

after the infliction of a mortal wound which, although certainly causing death, does not

cause dea.h instantaeously, constitues torture. The Court's majority decision herein

clearly overlooks the facts in the case which are certainly equally consistent with the

view that the mere infliction of wounds, which resulted in the death of a person, do not,

by their number, location or depth necessarily constitute torture. Appellant's brief lists

e@ number of cases decided nationwide, which involve facts very similar to the facts

herein, and cases in which it was determined that the injuries inflicted and the nature

and types of injuries did not, ipso facto, constitute torture.

3. That the Court in its opinion of March 29, 1983 inadvertently misinterpreted

and over.voked law in facts of this case by holding that the Defendant's statements,

made to a number of police officers were free and voluntary for the reason that the

evidence clearly established that the Defendant had not slept in almost 24 hours and had

not eaten in a equally long period of time. The detention of the Appellant herein without

food and sleep for such a substanial period of time clearly vitiated his free will and

resulted in any statements made by him not being his free and voluntary act.

4. “he Court in its opinion of March 29, 1983 inadvertently misinterpreted and

overlooked the law and facts of this case by holding "we conclude that considering the

instant crime and the Defendant in this case that the penalty imposed is not excessive

nor disproportionate to the penalty imposed in similar cases. State vs. Stokes, 638

S.W.2d 7 5 (Mo.bane 1982)." For the reason that the decision herein is grossly disimilar

to the facts in State vs. Stokes, 638 S.W.2d 715 (Mo.banc 1982). In Stokes, death was

occasioned by:

a) The severe beating of the victim about the head and upper

chest.

b) The five (5) stab wounds caused by a sharp Instrument.

ec) The apron wrapped around the neck with minor linear

lacerations in the flesh, indicating that the murderer attempted to strangle the victim by

tightening the apron in garrotte like fashion.

The Court pointed out that the evidence was that all of the

above injuries were sustained while the victim was yet alive.

d) Manual strangulation of the victim, as shown by violent

internal damage to the neck, thus exaggerating the serious physcial abuse inflicted prior

to actual death. It is clear in the Stokes case that the death caused by the Defendant

presumably over a relatively long period of time, in culminating by the physical and

manual strangulation of the victim by the Defendant.

Clearly the Court can paint the picture in its mind, in the Stokes case of a

Defendant bending over his victim and squcezing the last breaths of life out of an

alreadly limp and dying body. The case herein shows no documented evidence of any

prolonged contact between the assailant and the victim. The facts show only stab

wounds to the upper body and to the neck and the consequent exgorgation of considerable

amounts of blood. The fact that the victim herein died by a loss of blood rather than by

an internal bullet wound to the heart or by other less grusome looking methods cannot

sway the determination as to what was in the mind of the perpetrator. The facts

presented at trial, and not the speculations as to low the act may have occurred, must be

the true consideration of this Court. When the facts alone of this case are compared with

the heinous facts of the Stokes case it becomes abundantly clear that Stokes cannot be

relied upon as showing similarity to the finding of the jury herein. Our capital

punishment law requires not only that the jury find statutory aggravating circumstances

but has, as an additional safeguard, the requirement that this Honorable Court compere

und contrast the decisions of juries throughout the State and determine that a certain

standard is met before human life is taken. In determining that the case herein is of the

same nature and magnitude as other cases wherein capital punishment wes approved

overlooks the following cases, reviewed by this same Court, which reflect deaths clearly

caused by similar means and in similar fashions, but wherein the juries, exercising

reasonable and prudent discretion, determine the appropriate penatly to be imprisonment

for a period of 50 years without parole:

In State v. Mitchell, 611 S.W.2d 223 (Mo.banc 1981) and State vs. Turner,

623, S.W.2d 4 (Mo.banc 1981), defendants were each found guilty of two counts of capital

murder. They robbed a liquor store and killed the proprietor, age 72, and his employee,

age 60. Both victims had been stabbed, one six to eight times in the chest and abdome,

and the other fifteen times, nine in the front part of the body anc six in the back. Both

victims also had severe wounds to the head froin a blunt instrument such as a beer bottle

under chapter 565.006.2, defendant was sentenced to life without perole for fifty years

on each count. In Turner, the jury assessed punishment on each count at life without

parole for fifty years, not death.

"In State vs. Fuhr, 626 S.W.2d 373 (Mo. 1982), defendant, age 23, killed a

forty-three year-old woman. The victim was stabbed twenty-nine times with a butcher

knife. Money, a wallet, and rings were taken from the victim. The robbery was planned

by the victim's daughter who asked the defendant to help. Some of the stab wounds had a

depth of seven inches. The jury convicted defendant of capital murder and assessed the

punishment not at death, but at life without parole for fifty years." (Dissenting opinion

page 7, 8.).

Further the comparison suggested by the Honorable Justice Robert E. Seiler are

certainly persuasive in citing seven (7) cases, decided by juries in this State and involving

stabbings of a more heinous nature than this, which were determined, by juries exercising

careful and prudent consideration, to be punished by life inprisonment without parole for

fifty years. In the majority decision, the Court inadvertently overlooked the many cases

cited in this State which, when reviewed, clearly show that the imposition of death

sentence in this case is clearly disproportionate to the penalty imposed in similar cases.

WHEREFORE, for the above causes, Appellant respectfully requests this Court to

grant him a rehearing in this cause.

Respectfully Submitted:

‘

VAAn~ GB

+ Tlemeyer ee

Attorney for Appellant

408 Jefferson Strect

St. Charles, Missouri 63301

724-0499 946-7899

So

A-25 :

_ a

_

Pa Bae Doh

*\s Hay :,

*

Ciern OF tHe Supreme Court

STATE OF MISSOURI

POST OFFICE BOA 150

THOMAS £. SIMON Jerrcrson City, Missouri mr

sna 65102 Pw eae

April 26, 1983

Mr. Donald C. Tiemeyer

408 Jefferson Street

St. Charles, MO 6330/1

In re: State of Missouri vs. Anthony Joe LaRette, Jr.

No. 63569

Dear Mr. Tiemeyer:

This Is to advise that the Court this day entered the

following order in the above-entitled cause:

“Appellant's motion for rehearing overruled.”

Very truly yours,

Clerk

cc: Attorney General

C)

IN THE ClwCUIT COURT OF WAKKEEN COUNTY, “[ESsoukl

DIVISION |!

1271 JUDICIAL C

STATE “OF MISSOURI,

Plaintiff,

vs. Cause No. CkS8)-15F

ANTHONY J. LARETTE, JR.,

Ne

Defendant.

JUDGMENT AND SENTENCE

Now on this 7th day of October, 198), comes Donald L. Kohl,

Assistant Prosecuting Attorney of St. Charles County, Missouri, who

prosecutes on behalf of the State, ant ulso comes the defendant in

his own proper person in the custody of the Sheriff of this County

and in the presence of his attorney, Yonuld’ C. Tiemeyer, in open

court, whereupon said defendant :1s nforned by the Court that on

August 14, 1981, the jury returned 's verdict findine said defend-

ant guilty of the crime of capita) url: in viututton of Section

565.001 RSMo, and that the jury, '. :! riot, frsod satd defen-

dant's punishment at death pursuant to sections 565.uuU8 und 565.012,

RSMo.

And being asked by the Court 1: he has any legal cause to

show why judyment and sentence shoul) net be promuunced syaanst

him in accordance with the verdict wo: the jury umd according to

law, and said defendant failing to show sufficient cause, it is

considered, ordered, adjudged and decreed by the Court that the

defendant Anthony J. LaRette, Jr., havine been found guilty afore-

said, be sentenced to the punishment of Ceat!: by the udministration

of lethal gas as provided by law.

It is further ordered that the treriff of this County shall

deliver said defendant on October 7, 198!, to the Warden of the

State Penitentiary at Jefferson City, “issour!, ‘for execution of

the sentence adjudged herein.

CY C)

It is further ORDERED, ADJUUCLL and DECKEED that the

sentence of death upon this judgment be ecxecuted November 16, 1981,

by the administration of lethal] yas as provided by law, said

execution to be carried out under the Supervision and direction of

the Warden of the State ienitentia: it Jefferson City, Missouri.

It is further ORDERED that in delivering said defendant

from this County to the Warden of the State Peritentiary the

Sheriff shall be authorized one extra gourd,

ev wt) |

. F >)

f taae: Ah) | hky

MDWAKD Gy NOU = = =i

Carcuirt Judge

A-28

APPENDIX

, STATUTES INVOLVED

Section 565.001, R.S.Mo. 1978

Capital murder defined

Any person who unlawfully, willfully, knowingly,

Geliberately, and with premeditation kills or causes

the killing of another human being is guilty of the

offense of capital murder.

Section 565.006, R.S.Mo 1978

Verdict as to guilt, when rendered--instruction by

court, limitation--presentence hearing, admissible

evidence--penalty, when imposed--reversible error, effect

1. At the conclusion of all trials upon an

indictment or information for capital murder heard by a

jury, and after argument of counsel and proper charge

from the court, the jury shall retire to consider a

verdict of guilty or not guilty without any

consideration of punishment. In nonjury capital murder

cases, the court shall likewise first consider a finding

of guilty or not guilty without any consideration of

punishment. In each jury capital murder case, the court

shall not give instructions on any lesser included

offense which could not be supported by the evidence

presented in the case.

2. Where the jury or judge returns a verdict or

finding of guilty as provided in subsection 1 of this

section, the court shall resume the trial and conduct a

presentence hearing before the jury or judge, at which

time the only issue shall be the determination of the

punishment to be imposed. In such hearing, subject to

the laws of evidence, the jury or judge shall hear

additional evidence in extenuation, mitigation, and

aggravation of punishment, including the record of any

prior criminal convictions and pleas of guilty, or pleas

of nolo contendere of the defendant, or the absence of

any such prior criminal convictions and pleas. Only

such evidence in aggravation as the prosecution has made

known to the defendant prior to his trial shall be

admissible. The jury or judge shall also hear argument

by the defendant or his counsel and the prosecuting

attorney regarding the punishment to be imposed. The

prosecuting attorney shall open and the defendant shall

conclude the argument to the jury or judge. Upon

conclusion of the evidence and argument the judge shall

give the jury appropriate instructions and the jury

shall retire to determine the punishment to be imposed.

In capital murder cases in which the death penalty may

be imposed by a jury or judge sitting without a jury,

the additional procedure provided in section 565.012

shall be followed. The jury, or the judge in cases

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

prescribed by law. The judge shall

impose the sentence fixed by the jury or judge. If

the jury cannot, within a reasonable time, agree to

the punishment, the judge shall impose sentence within

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the limits of the law; except that, the judge shall in

no instance impose the death penalty when, in cases

° tried by a jury, the jury cannot agree upon the

punishment.

F 3. If the trial court is reversed on appeal

because of error only in the presentence hearing, the

new trial which may be ordered shall apply only to the

issue of punishment.

Section 565.008, R.S.Mo. 1978

Death penalty, when imposed--life imprisonment, when

imposed--minimum of fifty years to be served,

when--first and second degree murder, penalties for

1. Persons convicted of the offense of capital

murder shall, if the judge or jury so recommends after

complying with the provisions of sections 565.006 and

565.012, be punished by death. If the judge or jury

does not recommend the imposition of the death penalty

on a finding of guilty of capital murder, the

convicted person shall be punished by imprisonment by

the division of corrections during his natural life

and shall not be eligible for probation or parole

until he has served a minimum of fifty years of his

sentence.

2. Persons convicted of murder in the first

degree shall be punished by imprisonment by the

division of corrections during their natural lives.

Persons convicted of murder in the second degree shall

be punished by imprisonment by the division of

corrections for a term of not less than ten years.

Section 565.012, R.S.Mo. Supp. 1982

Evidence to be considered in assessing punishment in

capital murder cases

1. Im all cases of capital murder for which the death

penalty is authorized, the judge shall consider, or he

shall include in his instructions to the jury for it to

consider:

(1) Any of the statutory aggravating

circumstances enumeratad in subsection 2

which may be supported by the evidence;

(2) Any of the statutory mitigating

circumstances enumerated in subsection 3

which may be supported by the evidence;

(3) Any mitigating or aggravating

circumstances otherwise authorized by law;

and

(4) Whether a sufficient aggravating

circumstance or circumstances exist to

warrant the imposition of death or whether a

sufficient mitigating circumstance or

circumstances exist which outweigh the

aggravating circumstance or circumstances

found to exist.

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2. Statutory aggravating circumstances shall be

limited to the following:

. (1) The offense was committed by a person

with a prior record of conviction for capital

° murder, or the offense was committed by a person

who has a substantial history of serious

assaultive criminal convictions;

(2) The offense was committed while the

offender was engaged in the commission of another

capital murder;

(3) The offender by his act of capital

murder knowingly created a great risk of death to

more than one person in a public place by means

of a weapon or device which would normally be

hazardous to the lives of more than one person;

(4) The offender committed the offense of

capital murder for himself or another, for the

purpose of receiving money or any other thing of

value;

(5) The capital murder was committed against

a judicial officer, former judicial officer,

prosecuting attorney or former prosecuting

attorney, circuit attorney or former circuit

attorney, elected official or former elected

official during or because of the exercise of his

official duty;

(6) The offender caused or directed another

to commit capital murder or committed capital

murder as an agent or employee of another person;

(7) The offense was outrageously or wantonly

vile, horrible or inhuman in that it involved

torture, or depravity of mind;

(8) The capital murder was committed against

any peace officer, corrections employee, or

fireman while engaged in the performance of his

official duty;

(9) The capital murder was committed by a

person in, or who has escaped from, the lawful

custody of a peace officer or place of lawful

con finement ;

(10) The capital murder was committed for

the pur ng of avoiding, interfering with, or

prevent a lawful arrest or custody in a place

bf penning confinement, of himself or another;

(11) The capital murder was committed while

the defendant was engaged in the perpetration or

in the attempt to perpetrate the felony of rape

or forcible rape or the felony of sodomy or

forcible sodomy;

(12) The capital murder was committed by the

defendant for the purpose of preventing the

person killed from testifying in any judicial

proceeding.

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3. Statutory mitigating circumstances shall

include the following;

(1) The defendant has no significant history

of prior criminal activity;

(2) The capital felony was committed while

the defendant was under the influence of extreme

mental or emotional disturbance;

(3) The victim was a participant in the

defendant's conduct or consented to the act;

(4) The defendant was an accomplice in the

capital felony committed by another person and

his participation was relatively minor;

(5) The defendant acted under extreme duress

or under the substantial domination of another

person;

(6) The capacity of the defendant to

appreciate the criminality of his conduct or to

conform his conduct to the requirements of law

was substantially impaired;

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

the crime.

4. The statutory instructions as determined by

the trial judge to be warranted by the evidence shall

be given in charge and in writing to the jury for its

Geliberation. The jury, if its verdict is a

recommendation of death, shall designate in writing,

signed by the foreman of the jury, the aggravating

circumstance or circumstances which it found beyond a

reasonable doubt.

5. Unless at least one of the statutory

aggravating circumstances enumerated in this section

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

Section 565.014, R.S.Mo. 1978

Supreme court to review all death sentences, notice,

contents of--findings required--assistant to supreme court

authorized, duties of

1. Whenever the death penalty is imposed in any

case, and upon the judgment becoming final in the

trial court, the sentence shall be reviewed on the

record by the supreme court of Missouri. The circuit

Clerk of the court trying the case, within ten days

after receiving the transcript, shall transmit the

entire record and transcript to the supreme court

together with a notice prepared by the circuit clerk

and a report prepared by the trial judge. The notice

shall set forth the title and docket number of the

case, the name of the defendant and the name and

address of his attorney, a narrative statement of the

judgment, the offense, and the punishment prescribed.

The report by the judge shall be in the form of a

standard questionnaire prepared and supplied by the

supreme court of Missouri.

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2. The supreme court of Missouri shall consider

the punishment as well as any errors enumerated by way

of appeal.

3. With regard to the sentence, the supreme .

court shall determine:

(1) Whether the sentence of death was

imposed under the influence of passion,

prejudice, or any other arbitrary factor;

and

(2) Whether the evidence supports the

jury's or judge's finding of a statutory

aggravating circumstance as enumerated in

section 565.012; and

(3) Whether the sentence of death is

excessive or disproportionate to the penalty

imposed in similar cases, considering both

the crime and the defendant.

4. Both the defendant and the state shall have

the right to submit briefs within the time provided by

the supreme court, and to present oral argument to the

supreme court.

5. The supreme court shall include in its

decision a reference to those similar cases which it

took into consideration. In addition to its authority

regarding correction of errors, the supreme court,

with regard to review of death sentences, shall be

authorized to:

(1) Affirm the sentence of death; or

(2) Set the sentence aside and remand

the case for resentencing by the trial judge

based on the record and argument of

counsel. The records of those similar cases

referred to by the supreme court of Missouri

in its decision, and the extracts prepared

as hereinafter provided for, shall be

provided to the resentencing judge for his

consideration.

6. There shall be an assistant to the supreme

court. who shall be an attorney appointed by the

supreme court and who shall serve at the pleasure of

the court. The court shall accumulate the records of

all capital cases in which sentence was imposed after

May 26, 1977, or such earlier date as the court

desires with respect thereto, including but not

limited to a synopsis or brief of the facts in the

record concerning the crime and the defendant. The

court shall be authorized to employ an appropriate

staff, within the limits of appropriations made for

that purpose, and such methods to compile such data as

are deemed by the supreme court to be appropriate and

relevant to the statutory questions concerning the

validity of the sentence. The office of the assistant

to the supreme court shall be attached to the office

of the clerk of the supreme court for administrative

purposes.

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7. The sentence review shall be in addition to

direct appeal, if taken, and the review and appeal

« shall be consciidated for consideration. The court

shall render its decision on legal errors enumerated,

the factual substantiation of the verdict, and the

° validity of the sentence.

Section 565.016, R.S.Mo. 1978

Pinding of unconstitutional provisions, effect of

1. If the United States Supreme Court or the

supreme court of Missouri declares the offense of

capital murder or the death penalty to be in violation

of any provision of the Constitution of the United

States or the constitution of Missouri, any killing

which would be capital murder under any of the

circumstances specified in section 565.001 shall be

deemed to be murder in the first degree and the

offender shall be charged and, if convicted, punished

as provided by law, except that, he shall not be

eligible for probation or parole until he has served a

minimum of fifty years of his sentence.

2. If a person is convicted of capital murder

and the death penalty imposed after May 26, 1977, and,

subsequent thereto, the offense of capital murder or

the death penalty is declared by the United States

Supreme Court or the supreme court of Missouri to be

in violation of any provision of the Constitution of

the United States or the constitution of Missouri, a

person so convicted and sentenced shall be brought

back before the court which originally passed sentence

and that court shall resentence such person to

imprisonment by the division of corrections during his

matural life. A person resentenced under the

provisions of this section shall not be eligible for

probation or parole until he has served a minimum of

fifty years of his sentence.

VERDICT FORM

Jurors: Use this form only if the punishment fixed by you is

death. See Instruction No. “ah for directions as to what must

be written into the verdict form if the death penalty is imposed. Use

the reverse side of this form if necessary. The foreman's signature must

appear at the end of the matter which you ¢es.quate in writing es the

aggravating circumstance or circumstances which all twelve jurors found

beyond a reasonable doubt.

We, the jury, having found the defendant quilty of the capital

murder of Mary Fleming, fix the defendant's punishment at death, and we

designate the following aggravating circumstance or circumstances which

we find beyond a reasonable doubt:

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| TRANSCRIP( DF TRIAL COURT'S INSTRUCTIC 35, PUNISHMENT PHASE

’ 8. During the latter part of July, 1980

' 2 | Tony received a phone call from a friend in St. Louis, Missouri,

: 3 T Rick Roberson, and Tony discussed with Rick Roberson about Tony

4 T coming to St.Louis to visit hin. That sometime thereafter,

8 | the exact date being unsure, Tony boarded a bus in Topeka,

6 | Kansas, headed for St. Louis, Missouri.

U 9. That Tony appeared capable of

8 | traveling alone and handling himself on this bus trip.

9 10. That when Tony returned to Topeka,

10 | Kansas, after being gone several days to a week, he was still

11 fj acting very upset like he was before he left on his trip."

12 MR. TIEMEYER: I have no further ovissmell

13 | Your Honor.

4 (DEFENDANT RESTS.)

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16 THE COURT: Ladies and gentlemen of the

; 7 | jury:

" 18 INSTRUCTION NO. 19

d 19 You will now hear argument by the

i 20 | Prosecuting Attorney and by counsel for the defendant regarding

21 | the punishnent to be imposed. Their arguments are intended to

22 | help you in understanding the evidence and applying the law,

23 | but they are not evidence.

24 You will bear in mind that it is your

2% | duty to be governed by the evidence as you remember it, the

asa. i

' T reasonable inferences which you believe should be drawn, and

u 2 I the law as given in instructions of the Court.

3 After counsel have argued the matter, the

4 |] Court will give you further and final instructions concerning

5 | the law relating to the punishment. It is your duty and yours

6 | alone to decide upon the punishment to be imposed upon the

7 | defendant and to render such verdict under the law and the

8 | evidence.

9 The State's attorney must open the

10 | argument. Counsel for the defendant may then make his argumen

11] No further argument is permitted by either side.

12 | MAI-CR 2d 15.36

SUBMITTED BY THE STATE

14 (Jury argument is then presented by the

1% 7 State and the Defendant.)

7 THE COURT: Ladies and gentlemen:

18 INSTRUCTION NO. 20

19 The law applicable to this stage of the

trial is stated in these instructions and those which were

21 | read to you when we began this phase of the case. All of

enene ¢e.. Gaveunt. G4. Sheer . fone tee

3

these instructions will be given to you to take to your jury

room for use during your deliberations. 1

You must not single out certain

instructions and disregard others or question the wisdom of

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rule of law.

I do not mean to assume as true any fact

referred to in these instructions but leave it to you to

determine what the facts are and what the punishment should be}.

I-CR 2d 15.38

SUBMITTED BY THE STATE

INSTRUCTION NO. 21

In determining the punishment to be

assessed against the defendant for the murder of Mary Fleming,

you must first unanimously determine whether the murder of

Mary Fleming involved torture or depravity of mind and that a

a result thereof it was outrageously or wantonly vile, qa

or inhuman.

You are further instructed that the

burden rests upon the state to prove beyond a reasonable doubt

the foregoing circumstance and that it is an aggravating

circumstance. The defendant is not required to prove or disp

anything.

Therefore, if you do not unanimously fi

from the evidence beyond a reasonable doubt that the foregoin

circumstance exists and that it is an aggravating circumstancéd,

you must return a verdict fixing the puniShment of the defend

at imprisonment for life by the Division of Corrections without

eligibility for probation or parole until he has served a

minimum of fifty years of his sentence.

MAI-CR 2d 15.40

SUBMITTED BY THE STATE

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INSTRUCTION NO. 22

If you find and belicve fron the evidench

beyond a reasonable doubt that the circumstance submitted in

Instruction No. 71 exists and that it is an aggravating

circumstance, it will then become your duty to decide whether

a sufficient aggravating circumstance or circumstances exist

to warrant the imposition of death as punishment of defendant.

In deciding that question you may consider all of the evidence

relating to the murder of Mary Fleming.

You may also consider the aggravating

circumstance referred to in Instruction No. 21 which you found

beyond a reasonable doubt.

You may also consider any of the followi

circumstances if you find from the evidence beyond e reasonabl

doubt that it exists and that it is an aggravating circumstant

1. That Anthony J. LaRette, Jr., was

convicted of burglary, Count I and theft, Count II, in the

District Court of Shawnee County, State of Kansas,on January 2h

1979, and

2. That Anthony J. LaRette, Jr., was

convicted of rape in the District Court of Douglas County,

State of kansas, “on July 22, 1974, and

3. That Anthony J. LaRette, Jr., was

convicted of pocket picking ir the District Court of Shawnee

County, State of Kansas,on June 12, 1972.

18

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21 | Flewing was committed while the Defendant was under the

22 | influence of extreme mental or emotional disturbance.

23 2. Whether the Defendant acted under

24 7 extreme duress or substantial domination of another person.

2 3. The age of the Defendant et the citi

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If you Jo not unanimously find from the

evidence beyond a reasonable doubt that a sufficient aggravating

circumstance or circumstances exist to warrant the imposition

of death as defendant's punishwont, you must return a verdict

fixing his punishment at imprisonment for life by the Division

of Corrections without eligibility for probation or parole unt

he has served a minimum of fifty years of his sentence.

MAI-CR 2c 15.42

SUBMITTED BY THE STATE

INSTRUCTION NO. 23

If you decide that a sufficient aggravath

circumstance or circumstances exist to warrant the imposition

of death, as submitted in Instruction No. 22, it will then

become your duty to determine whether a sutficient mitiysting

circumstance or circumstances cxist, which outweigh such

aggravating circumstance or circumstances so found to exist.

In deciding that question you may consider all of the evidence

relating to the murder of Mary Michele Fleming.

You tidy 4150 Consider:

1. Whether the murder of Mary Michele

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1 T of the offense.

"y 2 You muy also consider any circumstances

s 3 which yeu find from the evidence in extenuation or mitigation

of punishment.

If you unanimously decide that a sul ticin

6 | citigating circumstance or circumstances exist which outweigh

7 | the aggravating circumstance or circumstances found by you to

8 | exist, then you must return a verdict fixing Defendant's

junishuent at imprisonment tor life by the Division of Correcth

10 |] without eligibility for probstion or parole until he has serve

11 f 2 minimus of fifty years of his sentence.

12 7] MAI-CR 2d 15.44

SUBMITTED BY THE DEFENDANT

13

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” INSTRUCTION NO. 24

18 Even if you decide that a sufficient

16 | mitigating circumstance or circunstances do not exist which

17 | outweigh the aggravating circumstance or circumstances found

% | to exist, you are not compelled to fix death as the punishment

19 | Whether that is to be your final decision rests with you.

MAI-CR 2d 15.46

SUBMITTED BY THE STATE

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INSTRUCTION NO. ZS

You will be provided with forms of verdir

for your convenience. You ceznnot return any verdict as the

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verdict of the jury unless 3)1 twelve jurors concur in and

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1 | agree to it, but it should be signed by your foreman alone.

f 2 If you decide, after considering 211 of

: 3 i the eviderce and instructions of law given to you, that the

4 7 cdefendent must be put to death for the murder of Mary Fleming,

5 | your foreman must write into your verdict the oggravating

6 |} circumstance submitted in Instruction No. 21 which you found

7 | beyond a reasonable doubt. In addition, your foreman aust wriks

8 | into your verdict all of the other specifically mentioned

9 | aggravating circumstances submitted in Instruction No. 22 —

10 | you foune beyond a reasonable doubt

" If, after considering all of the “a7

12 |} and instructions of law, you deci:de that the defendant must b

13 | punished for the murder of Mary Fleming by imprisonment for

147 life by the Division of Corrections without eligibility for

16 | probation or parole until he has served a minimum of fifty yeer

16 |} of his sentence, your foreman will sign the verdict form so

17 | fixing the punishment.

" 18 When you have concluded your deliberati

J 19 | you will complete the applicable form to which all twelve jur

: 20 | agree and return it with all unused forms and the written

é 21 | instructions of the court.

22 If, after due deliberation, you are vnat

23 to agrce upon the punishment, your foreman will sign the

24 | verdict form so stafing. In such case, the court will fix

25 | the defendant's punishment it imprisonment for life by the

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EXCERPT FROM PETITIONER'S BRIEF IN MISSOURI SUPREME COURT

THE TRIAL COURT ERRED IN PAILING TO GRANT DEFENDANT A NEW TRIAL ON

THE BASIS THAT THERE WAS INSUFFICIENT EVIDENCE FOR THE JURY TO PIND

"TORTURE" AS AN AGGRAVATING CIRCUMSTANCE IN ITS VERDICT FORM.

Section 565.012(5) R.S.Mo. (1980 Supp.) provides that the death penalty shall not he

imposed unless one of the statutory aggravating circumstances of Section 565.91 2(2) is

found by the jury. The particular subparagraph of Section 565.012 applicable in this case

is Section 545.012(7) which provides:

"The offense was outrageously or wantonly vile, horrible or inhuman

in that it involved torture, or depravity of mind." (Emphasis added)

This standard is couched in the disjunctive in that it permits a jury to find either

torture or depravity of mind to support the imposition of the death penalty. The jury in

this case found both clements in the conjunctive, i.c. "torture", depravity of mind.” (T,

797), The element of depravity of mind will be discussed separately, infra.

Concerning the issue of what constitutes "torture", the State of Georgia has

construed the term to require "serious physical abuse before death." Hance v. State , 248

S.F.24 339, 345 (Ga. 1980), citing Godrey v.Georgin, 446 U.S, 420, 100 S.Ct. at 1759, at

1766, 64 L.Ed.2d 398 (1980); Hill v. State, 271 S.E.2d 802, 819 (Ga. 1989).

Also, the State of California has been interpreting the word “torture” in its first

degree murder statute for many veers. In People v. Tubby, 207 P.2d 51,54 (Cal. 1949),

quoting People v. Hesley, ‘63 P.2d 21, 27, the California Sunreme Court interpreted the

word "torture" as follows:

“Implict in that definition is the requirement of an intent to cause *

pain and suffering in addition to death. That is, the killer is not

satisfied with killing alone. He wishes to punish, execute vengence

on, or extort something from his victim, and in the course, or, as the

result of inflicting pain and suffering, the victim dies..."

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bhe Court continued in saying:

"The test cannot be whether the victim merely suffered severe pain

since presumably in most murders severe pain precedes death.”

Tubby, supra, at 54.

In Missouri, it is significant that in the death penuity case of State v Mercer, 618

5.W.2d 1 (Mo bane 1981), wherein the victim was forced at gunpoint to perform sexual

intercourse and oral sex with defendant and his cohorts; was strangled, choked, and

struck by defendant before death, the jury did not find "torture" as an aggravating

circumstance, but did find "depravity of mind.” While it is not totally clear from the

case report on State v. Mercer whether or not the trial court submitted both torture and

depravity of mind to the jury, it is significant in either event that: (1) either the jury did

not believe the victim had been "tortured" despite the verv cruel, physical and

nsvehological abuse of the victim over an extended period of time; or (2) that despite the

above facts and evidence, the trial court did not believe such constituted torture and

therefore did not submit this issue to the jurv.

In the present case, there was no evidence of any orchestrated physical or sexual

abuse of the victim. There was no evidence that Defendant intended to cause pain and

suffering in addition to death. In fact, as will be argued herein, infra, there was

insufficient evidence of the requisite mental state to support a conviction of capital

murder.

The State's evidence only reflects that defendant and the victim struggled, and

that in @ rapid sequence of events, Defendant stabbed the victim twice in the chest and

cut her throat as she attempted to flee from the Defendant inside her home. And

further, that all of these events occurred in a heat of passion as reflected bv, the oral

admissions of defendant as related by Detectives Plummer and Harvey (T. 488, 524). The

defendant allegedly stated that he had entered the victim's residence to burgiarize it and

was surprised by the victim. The defendant grabbed the victim and placed his hand over

_“

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her mouth and told her she would not be lwrt if she didn't scream for help, “then it

happened - she lied like my wife” (T. 488, 524).

Thus, there simply is no evidence in the recorc of any ucts or conduct of the

Defendant that a jury could characterize as torture of the victim. And further, as will

be elaborated upon infra, the fact that the jury in its verdict form found that the

defendant had committed torture and exhibited depravity of mind by his conduct

certainly calls into question and raises serious doubt whether the rural, Warren County

jury in fact used the Court's instruction on aggravating circumstances as a “roving

commission" and essentially disregarded the substantive incaning of the term "torture" in

its ordinary sense, having predetermined that the dcfendant should die for his actions

rrespective of the Court's guidelines to the jury for its deliberations.