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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982

## Text

». 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

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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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
_

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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,
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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

@ ©)

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.

A-31

; or
C) (

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.

ae) oe. © er eee

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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.

O a
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:

Lor Cate y ML ey fpite: : > ons ~f?* Pa 2 o 4 ote

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a) ame” ae eee ge a eirey BealiatQ4 ag,
tern Mretey vebk- ip: ! |
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C tHe J de Wee e aid omy 4. ~OClee"
‘, 1 499 Lm-T ee pe a tatn" ee

7s;
| 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.)
Wf wee ccc c nn ccc ce nec w cece cence nn ewww nnn cnc ccwescccccccccccees
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

Peneee CO... Gareeet. Gs etese « Poem fee

2

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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

faress 66... Getenet. G4 OFee8 . foun fee

2 2 3 B

O ©

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

Penees CO... Sarees, GA GF008 - feEm fee
3

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
[ es f
‘ e J pate A-41
ae tee

O C

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

1

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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
]
” 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

Penees 66. Gaveens, G4. OF008 « SEGH tes
3

INSTRUCTION NO. ZS
You will be provided with forms of verdir

for your convenience. You ceznnot return any verdict as the

~ sue

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

; ~) C)

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

” SSDS ia | A-43

C) Ee)
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..."

>) C)

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

_“

A-45

(\

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1457%3A1. Public record. Not legal advice.