Petition for Writ of Certiorari — William Theodore Boliek, Jr. v. Missouri

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RECEIVED

Jos. 10, te

Joh-+-+++1986-

OFFICE OF THE CLERK

SUPREME COURT, U.S

IN THE SUPREME COURT OF THE UNITED STATES

-_ t

NO. R85 70 ~ 2 )

WILLIAM THEODORE BOLIEK,

Petitioner,

v.

STATE OF MISSOURI,

Respondent.

PETITION FOR WRIT OF CERTIORAR! TO THE

SUPREME COURT OF THE STATE OF MISSOUR!

LEW A. KOLLIAS

OFFICE OF STATE PUBLIC DEFENDER

2098 EAST GREEN MEADOWS ROAD

COLUMBIA, MISSOUR! 65203-3698

(314) 442-1101

Counse! for Petitioner

Kathleen Murphy Markie

Of Counsel!

Pace

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Petition for Writ of Certiorar/

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Constitutional Provisions............cccecee. 2

Questions Presented for Review............... 2

BUBCGMONRE OF GRO GOOG... cc ccccccccvececececece 2

Reasons to Grant the Writ................ 3

Question Presented 1: is the

Confrontation Clause Violated by

the Admission of a Murder Victim's

Hearsay Statements Allegediy

Falling under the Victim's State of

Mind Exception to the Hearsay Rule

when the Victim's State of Mind is

not Relevant to the Offense?....... 3

Question Presented 2: Should this

Court's Opinion in Lockhart y.

McCree, 39 Cr.L.Rptr. 3085 (1986),

Permit the State’s interest in

Efficient Trial Management to

Outweigh the Defendant's

Constitutional Rights in a Death

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Ns ©8655 6066600600066 bb600 es 006d e6 6 ub sakeiax G

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Page

California vy. Green, 399 U.S. 149, 90 S.Ct.

1930, 26 L.Ed.20d 489 (1970)..... cee eeeeees 4

Dutton vy. Evans, 400 U.S. 74, 91 S.Ct. 210, 27

L.B@.26 213 (1970). . cc vccccccccess we eh - 4

Lockhart vy. MeCree, 39 Cr.L.Rptr. 3085 (1986)..... 2,.5.6,8

Ohio vy. Roberts, 448 U.S. 56, 100 S.Ct. 2531,

OS £.86.26@ GOT (1980). cc ccc ecvcsvevvsecseses 4

State v. Boliek, 706 S.W.2d 847 (Mo. banc 1986) 1

State v. Singh, 586 S.W.2d 410 (Mo.App. 1979). 4

ITayior v. Lowisiana, 419 U.S. 522, 95 S.Ct

692, 42 ..Ed.2d 690 (1978).......2eees *

n | r , 490 F.20 758 (D.C. Cir

oj . ) i ee eee ae ee ee a 2 2 2 2 “a

United States v. Seeger, 380 U.S. 163, 85 S.Ct

850, 13 L.Ed.2d 733 (1965)..... wrverreT 7

ish n , 398 U.S. 333, 90 S.Ct

1792, 26 L.Ed.2d 308 (1970) es ' , ee 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1985

NO.

RICHARD ZE!TVOGEL,

Petitioner,

-—

STATE OF MISSOURI,

Respondent.

PETITION F RT H

UPREM URT OF T OuR !

Wiltliitam Theodore Bolliek, Petitioner herein, prays that a

Writ of Certiorar! issue to review the Judgment of the Supreme

Court of Missour!, in the case styied “State of Missouri v

Wiltiam Theodore Boliek, No. 66684 .”

OPINION BELOW

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

in the case styled "State of Missour! v. William Theodore Bo! iek,

No. 66684," the case for which certiorari is being sought, was

filed on March 25, 1986, appears at 706 S$.W.2d 847 (Mo. banc

1986), and may be found in the Appendix at pages 11-16.

(References to the Appendix will heretofore be cited as App.

— © The Missour! Supreme Court denied Petitioner's timely

motion for rehearing on Apri!l 15, 1986, at the same time set

Petitioner's death penait,; execution date for June 19, 1986 (App

21-22).

JURISDICTION

On March 25, 1986, an opinion rendered by the Supreme Court

of Missouri! affirmed Petitioner's Judgment and conviction for

Capital! Murder and his sentence of death (App. 11-16). Peti-

tioner duly filed his Motion for Rehearing, which was denied by

the Missour! Supreme Court on Apri! 15, 1986 (App. 21-22). On

April 15, 1986, the Missour! Supreme Court aiso set Petitioner's

execution date for June 19, 1986 (App. 21-22). The jurisdiction

of this Court Is invoked under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL PROVISIONS

The Constitutional Provisions involved are the Sixth, Eighth

and Fourteenth Amendments to the Constitution of the United

States.

QUESTIONS PRESENTED FOR REVIEW

- Is the Confrontation Clause violated by the admission of

a murder victim's hearsay statements allegediy falling under the

victim's state of mind exception to the hearsay rule when the

victim's state of mind is not relevant to the offense?

as Should this Court’s opinion in Lockhart vy. McCree, 39

Cr.l.Rptr. 3085 (1986), permit the state's interest in efficient

trial management to outweigh the defendant's constitutiona!

rights in a death penalty case?

STATEMENT OF THE CASE

Petitioner was convicted of capita! murder, Section 565.001,

RSMo 1978, for which he was sentenced to death in accordance with

the verdict.

Evidence favorable to the verdict indicated that in August

of 1983, petitioner was living with his ltover Jill Hariess, Linda

Turner, Turner‘’s brother Don Anderson, and Vernon Wait. Ouring a

visit to her sister Jill, the victim, Jody Hariess. together with

petitioner, Wait and Anderson, robbed the home of one Stan Gray

at gunpoint. Fearing retailation from Gray, appellant and Wait

acquired a 12 gauge shotgun and a .410 sawed-off shotgun and

discussed the necessity of “getting rid of the wi*nesses” to the

robbery. Upon learning that the police sought to question Jody

Hariess, appellant, Wait and the Hariess sisters iteft Kansas City

for Thayer, Missour!, robbing a iiquor store in Nevada, Missour |

en route (App. 12). At a rest stop, as Jody Hariess was walking

back to the car, appellant took the 12 gauge shotgun from the car

and shot her in the stomach. The victim continued to walk toward

him, pleading with him not to “do it." Wait forced her to the

ground, and appellant shot her again. Appellant told Jil!

Harless he had fired the second shot into the victim's mouth and

neck so that identification of the body would be iImpossibie. The

body was found some time ltater with two live .410 shotgun shells

and two expended 12 gauge shotgun shelis near the body. The body

was identified through dental! records, and indicated that death

had been caused by a shotgun wound to the head (App. 12).

At trial, appellant asserted that he did not know the gun

was loaded when he fired the first shot, and that the second shot

was fired by Wait (App. 12).

REASONS TO GRANT THE WRIT

QUESTION PRESENTED 1

THE CONFRONTATION CLAUSE !S VIOLATED BY THE ADMISSION OF A

MURDER VICTIM'S HEARSAY STATEMENTS ALLEGEDLY FALLING UNDER THE

VICTIM'S STATE OF MIND EXCEPTION TO THE HEARSAY RULE WHEN THE

VICTIM'S STATE OF MIND |S NOT RELEVANT TO THE OFFENSE.

Petitioner submits that the admission of the murder

victim’s hearsay statements to show her state of mind violated

the Confrontation Clause of the Sixth Amendment, applied to the

states through the Fourteenth Amendment, because the victim's

state of mind in this case was not reievant to the proof of this

offense.

The trial court in this case permitted testimony from

two witnesses that the victim, Jody Hariess, had stated in the

Gays preceding her departure from Kansas City, that she feared

appellant was going to kill ner (App. 14). The Missour! Supreme

Court upheld the trial court's determination in this matter on

the grounds that while such statements are generally admitted

only when they are relevant and their relevancy outweighs their

prejudicial effect, the trial court was in the best position to

determine the probativeness and prejudicial effect of the

evidence. lq.

Petitioner submits that the admission of the victim's

hearsay statements in this case constituted a violation of the

Confrontation Clause. In Qhio v. Roberts, 448 U.S. 56, 65-66,

100 $.Ct. 2531, 65 L.Ed.2d 597 (1980), this Court indicated that

the Confrontation Clause mandates that two requirements be met

for the admission of hearsay statements: first, the deciarant

must be shown to be unavalilabie, and second, the statement must

bear adequate “indicia of reliabliiity” as where the statement

falis within a firmlty rooted hearsay exception. The first

requirement is a rule of necessity reflecting the Framers’

preference for face-to-face accusation; the second fiows out of

the underlying purpose of the Confrontation Clause, namely, to

augment accuracy in the factfinding process by ensuring the

defendant an effective means to test adverse evidence. lg.

Although the first reauirement need not always be met, e.g.

Dutton vy. Evans, 400 U.S. 74, 91 $.Ct. 210, 27 L.Ed.2d 213

(1970), the requirement of adequate indicia of reliability

appears essential! to the Confrontation Clause. Moreover, with

regard to the relationship between the hearsay rules and the

Confrontation Clause, they protect similar vaiues, California v.

Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970),

and stem from the same roots, Dutton v. Evans, 400 U.S. at 86.

The Missour! Supreme Court noted that although hearsay

statements of a deciarant'’s present mental! condition are

generally excepted from the hearsay rule, such statements are

ordinarity admitted only where they are relevant and their

relevancy outweighs their prejudicial effect (App. 14). See

United States vy. Brown, 490 F.2d 758 (D.C. Cir. 1974); State vy.

Singh, 586 S.W.2d 410, 419 (Mo.App. 1979). As indicated in Judge

Biackmar’s opinion concurring in part and dissenting in part,

however, the victim's statements in this case were not relevant.

The defendant here did not claim self-defense, in which case

testimony as to the victim's fear would have tended to

demonstrate that the victim was not an aggressor (App. 16).

Rather, petitioner’s theory was of accidental! discharge not

occasioned by the actions of the victim. Thus, the victim's

statements that she feared petitioner does not logically refute

petitioner's ciaim that his shotgun accidentally discharged.

In addition to the statements being Irrelevant, they were

clearly highly prejudicial. In closing argument, the state used

the victim's statements in the following way: "Jody Hariess, one

of her tast words was ‘Ted Bolliek’'s gonna biow my head off.’ And

he did it." (Tr. §53) The state thus used the victim's

statements not to show her state of mind but to show petitioner's

guilt and state of mind and to characterize him as having

terrorized the victim prior to her death. Even if the victim's

statements were remotely relevant, petitioner submits their

relevancy was outwelghed by their prejudicial effect, and that

hence they should not have been admitted as falling under the

declarant’s state of mind hearsay exception.

Petitioner contends that his right to confrontation

guaranteed by the Sixth Amendment was violated by the admission

of the murder victim's statements indicating her fear of him,

because the victim's state of mind was not reievant to prove the

offense and thus such statements did not fall under a hearsay

exception. This case provides the Court an opportunity to

elucidate the relationship between the hearsay ruie with its

exceptions and the Confrontation Clause.

QUESTION PRESENTED 2

THIS COURT‘’S OPINION IN LOCKHART V. McCREE, 39 CR. L. RPTR. 3085

(1986) SHOULD NOT BE INTERPRETED TO PERMIT THE STATE’S INTEREST

IN EFFICIENT TRIAL MANAGEMENT TO OUTWEIGH THE DEFENDANT‘’S CONST! -

TUTIONAL RIGHTS IN A DEATH PENALTY CASE.

In the recent case of Lockhart vy. McCree, supra, this Court

held that the Constitution does not prohibit the remova! for

cause, prior to the guliit phase of a bifurcated capita! trial, of

prospective jurors whose opposition to the death penaity is so

strong that it would prevent or substantially impair the

performance of their duties as jurors at the sentencing phase of

the trial. 39 Cr. L. Rptr. at 3086. in so doing, the principal

opinion was accused by the dissent of permitting the state's

interest in effective trial management to outweigh the defen-

dant’s constitutional rights. 39 Cr. L. Rptr. at 3096-97.

Petitioner submits that the broad language ut!i!ized by this Court

in McCree can and should be narrowed to avoid such a result, and

that this case is an appropriate vehicie for such narrowing.

in McCree, this Court viewed the criminal defendant's

argument supporting his fair cross-section challenge as dealing

with the composition of petit Juries. 39 Cr. L. Rptr. at 3088;

see also ITavior v. Lowlsiana, 419 U.S. 522, 538 (1975). A relat-

ed argument, one proposed by petitioner on appea! to the Missou-

ri Supreme Court, views the fair cross-section challenge to be

directed toward the resulting poo! after challenges for cause

have removed from the initial venire panel those unfit to serve

ona jury. As this refined poo! is that from which the petit

jury is ultimately chosen, petitioner contends that it is this

body which the Sixth Amendment requires must comprise a represen-

tative cross-section of the community. As written, McCree could

be interpreted to reject petitioner's argument; petitioner sub-

mits that this case provides the Court the opportunity to narrow

the broad language of McCree.

In MeCree, this Court indicated that the Witherspoon-

excludables in that case did not constitute a “distinctive group”

for the purposes of the fair cross-section requirement. 39 Cr.

L. Rptr. 3088-89. Quoting Iavior v. Lowlsiana, 419 U.S. 522,

530-531, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Court identi-

fied such purposes as (1) “guard({ing]) against the exercise of

arbitrary power” and ensuring that the “commonsense judgment of

the community” will act as “a hedge against the overzealous or

mistaken prosecutor,” (2) preserving “public confidence in the

fairness of the criminal justice system," and (3) Implementing

the Court's belief that “sharing In the administration of justice

is a phase of civil responsibility.” 39 Cr. L. Rptr. 3088. The

Court apparently viewed Witherspoon-exciudabies as individuals

who have independently chosen for unknown reasons to adopt be-

tlefs contrary to the rule of ltaw, and, by Implication, the

community to which they belong. 398 Cret. Rptr. 3089

("‘Witherspoon-exciudabies’ are singied out for exciusion in

capita! cases on the basis of an attribute that is within the

individual’s contro! ... . [T]he group of ‘Wl r n-

excliudabies’ inciudes only those who cannot and wil! not consci-

entiously obey the law").

Petitioner contends, however, that insofar as Witherspoon-

exciudabies have adopted their views regarding the death penaity

for reasons of conscience, whether reiigious or morai, they do in

fact constitute a “distinctive group” for fair cross-section

purposes as announced in Jayior. supra. Where individuals have

adopted such views for reasons of conscience, they are not merely

personal beliefs, see Weish v. United States, 398 U.S. 333, 90

S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States vy. Seeger, 380

U.S. 163, 85 $.Ct. 850, 13 L.Ed.2d 733 (1965), which can be

dismissed as “within the Individual’s contro!." Moreover, at

least insofar as they are religious or quasi-religious, they

represent the views of one segment of the community which is

needed to guard against the arbitrary use of power by others

whose views may be represented by the prosecutor. To remove

those who for reasons of conscience could not impose the death

penalty from the guilt phase of a capita! trial effectively

eliminates from the administration of justice in such cases the

Input of such traditional religious bodies as the Quakers and

Church of the Brethren, as well as input of others who abhor the

death penalty for moral reasons, and thereby throws into question

the fairness of the criminal justice system. As in this case

petitioner raised on appeal the moral and/or religious basis for

the views of at least one Witherspoon-exciuded venireman, this

case would provide the Court the opportunity to narrow its hoid-

Ing in MeCree to those whose opposition to the death penaity is

not to be based on conscience, and who therefore do not belong to

a distinctive group for fair cross-section purposes.

Petitioner aiso points out that granting certiorari in this

case would permit the Court to correct its error in character iz-

ing Witherspoon-exciudabies as “urarie to follow the law." 39

Cr. L. Rptr. 3089. As such individuals have expressed scruples

onity with regard to punishment, they are clearly still abie to

follow the ltaw as to the determination of guilt in a capita!

case. Moreover, even as to punishment, so iong as the law per-

mits a jury to sentence disjunctively either death or imprison-

ment, and does not mandate the death penaity, a juror who would

impose a sentence of imprisonment only would nonetheless fol low

the law.

CONCLUS LON

For the reasons set forth in the Petition, Petitioner

respectfully submits that the Court should issue a writ of cer-

tlorar! to the Missour! Supreme Court in order to review the

issues raised herein.

Respectful'ty submitted,

— ¢ fu

“Stew A. Kollias

Office of State Public Defender

2098 East Green Meadows Road

Columbia, Missour! 65203-3698

(314) 442-1101

Counsel for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

WILLIAM THEODORE BOLIEK,

Petitioner,

Vv.

STATE OF MISSOURI,

Respondent.

APPEND! X

TO PETITION FOR WRIT OF CERTIORAR! TO

THE SUPREME COURT OF THE STATE OF MISSOUR!

Lew A. Kollias

Office of State Public Defender

2098 East Green Meadows Road

Columbia, Missour | 65203-3698

(314) 442-1101

Counsel! for Petitioner

Kathieen Murphy Markie

Of Counse!

OPINION BELOW......

MOTION FOR REHEARING

DENIAL OF MOTION FOR

TABLE OF CONTENTS

2EHEARING

RELEVANT MISSOURI! STATUTES....

is

of defendants

victim charged in

der defendant was

+—Sute v. Bolick

tness in general.

ai records tracing

© treated decedent

death were admis

) records would be

il, admissions, and

evidence —Guthnie

lissounm Methodist

——

STATE v. BOLIEK Mo. 847

Cite as 706 5. W 2d 847 (Mebane 15

STATE of Missouri, Respondent,

v

William Theodore BOLIEK,

Jr., Appellant.

No. 66684.

Supreme Court of Missouri,

En Banc

March 25, 1986

Defendant was convicted of capita!

murder by a jury in the Circuit Court,

Camden County, Dean Whipple, J., and he

appealed. The Supreme Court, Welliver,

J., held that: (1) allowing arresting officer

to testify that he made felony stop was

proper, (2) sister of murder victim charged

in separate indictment from defendant was

eligible to be State witness; (3) statements

that victim feared defendant was going to

kill her were admissible to show her

present mental condition; and (4) imposi-

tion of death penalty was not excessive or

disproportionate to penalty assessed in sim-

ilar cases

Affirmed

Blackmar, J., filed opinion concurring

in part and dissenting in part

1. Constitutional Law ¢°267

Jury 3312.1)

Excluding prospective jurors who

would not consider death as possible pun-

ishment for the crime charged does not

violate the Sixth and Fourteenth Amend-

ments of the United States Constitution as

well as Article 1, section 5 of the Missouri

Constitution and V.A.M.S. § 546.130. V.A.

M.S. Const. Art. 1, § 5; U.S.C.A. Const

Amends. 6, 14.

2. Criminal Law €°1036.1(3)

Admission of testimony that defendant

convicted of capital murder possessed knife

‘ was not plain error under V.A.M.R. 29.-

12(b) where defendant's own attorney elic-

ited such testimony and no request was

ll

made to have jury instructed to disregard

reference to knife.

3. Criminal Law © 1036.4

Allowing State to display a 410 shot-

gun before jury in order to aid jury in

visualizing testimony concerning weapon

and shelis found was not plain error, al

though that gun was not murder weapon,

as it was in coparticipant’s possession at

time of murder and 410 shotgun shells

were found at scene of crime

4. Criminal Law €°374

Statement by one of arresting officers

that he made a “felony stop” was not an

impermissible reference to armed robbery

committed by defendant charged with mur-

der, where jury was not informed of armed

robbery of gas station or that felony stop

was reference to another crime and could

have presumed that officer made felony

stop for crime under consideration.

5. Witnesses 90

Sister of murder victim charged in sep-

arate indictment from murder defendant

was not ineligible to be State witness.

6. Criminal Law €°419%1)

Testimony of two witnesses that victim

stated that she feared defendant was goinz

to kill her was admissible under hearsa.

exception for statements of declarant’s

present mental condition made out of court

7. Criminal Law @°649(1)

Court’s denial of overnight continu-

ance in murder trial, but allowance of 30-

minute recess and upon reconvention, ad-

journment until following morning at 9

a.m., was not abuse of .iscretion

8. Criminal Law €°1213.8(8)

Imposition of death as punishment for

capital murder was not crue] and unusual

punishment under U.S.C.A. Const. Amend. 8

and V.A.M.S. Const. Art 1, § 21.

9. Homicide €°354

Finding of aggravating circumstances

for defendant convicted of capital murder

was supported by substantial evidence;

jury four d defendant killed victim intend-

ing to elir ate witness to robbery commit-

848 Mo. 70 %UTH WESTERN

ted by defendant and two others, defendan:

and coparticipant in robbery decided to

take victim away after they learned police

were looking for her, and several witnesses

testified they heard coparticipant say he

wanted to kill victim because of what she

had seen.

10. Homicide 354

Death sentence was not excessive or

disproportionate to penalty assessed in sim-

ilar cases under V.A.M.S. § 565.014, subd

8, par. 3 (Repealed); evidence showed that

defendant wounded victim, she pled for her

life, and then, while companion flung and

held her to the ground, defendant shot the

victim in the head with a 12-gauge shotgun

held close to her face.

CJ. Larkin, Columbia, for appellant

William L. Webster, Atty. Gen., Victorine

R. Mahon, Asst. Atty. Gen., Jefferson City,

for respondent.

WELLIVER, Judge

Appellant, William Theodore Boliek, Jr

was convicted of capita! murder, § 565.001,

RSMo 1978 (now repealed) and the jury,

having found the aggrevating circumstanc-

es required by law, imposed the death sen-

tence. He appeals from his conviction and

sentence, urging numerous grounds for re-

versal. We have exclusive appellate juris-

diction. Mo.Const. art. V, § 3. We affirm

In August of 1983, appellant was living

in Linda Turner's home. Aside from Turn

er, other residents of the household includ

ed appellant's lover Jill Hariess, Turner's

brother Don Anderson, and Vernon Wait

The victim, Jody Harless, arrived to visit

her sister, Jill, and stayed at the Turner

home. One Friday evening, appellant,

Wait, Anderson, and Jody Harless robbed

the home of an acquaintance, Stan Gray, at

gunpoint. Afterward, fearing retaliation

from Gray and his friends, appellant ac-

quired a 12 guage shotgun, and Wait ac-

quired a .410 sawed off shotgun. Appel-

lant and Wait began to discuss the necessi-

ty of “getting rid of the witnesses” to the

robbery. Learning that the police wanted

REPORTER, 2d SERIF

to speak with the victim, appellant, Wait,

and the Harless sisters left Kansas City on

the following Monday

Appellant convinced the others to drive

to Thayer, Missouri, and hide out with ap

pellants parents. Appellant brought the

12 gauge shotgun and shells and Wait

brought the .410 shotgun and shells

While en route to Thayer, appellant and

Wait robbed a liquor store in Nevada, Miis

souri

Later that night, the group made a rest

stop along Route M in Oregon County

After the car stopped, Jody Harless walked

away from the car. When she began walk-

ing back toward the vehicle, appellant took

the 12 gauge shotgun from the auto, and

shot her. The victim grabbed her stomach

but continued walking toward appellant

She began to plead with appellant, “Please

don't do it. No Ted, please don't do it.”

Wait grabbed the victim and forced her to

the ground, and appellant shot the victim

again. Appellant told the victim's sister

that he had fired the second shot into the

victim's mouth and neck so identification of

the body would be impossible

Appellant was arrested September 6,

1983, in Decatur, Illinois, for an armed

robbery of a gas station committed earlier

that day. When arrested, appellant had in

his possession 12 gauge shotgun shells and

the 12 gauge shotgun used to kil] Jody

Harless. Appellant managed to escave

from custody but was recaptured

A rancher nding his fenceline discovered

the body of Jody Harless September 1(

1983, 28 feet from Highway M in Oregon

County, Missouri. Police investigators ar

rived and discovered two live 410 shotgun

shells and two expended 12 gauge shotgun

shells near the body. The victim's decom

posed body, unidentifiable by viewing, later

was identified through dental records. Tire

victim had been kilied by a shotgun wound

to the head

At trial, appellant claimed that when he

fired the first shot he did not know the gun

was loaded. The second shot, according to

appellant, was fired by Wait. The jury

12

ypellant, Wait,

\ansas City on

thers to drive

je out with ap

it brought the

ells and Wait

n and shells

appellant and

n Nevada, Mis-

up made a rest

iregon County

Harless walked

he began waik-

appellant took

9 the auto, and

ved her stomach

ward appellant.

pellant, “Please

se don't do it.

i forced her to

hot the victim

victim's sister

ad shot into the

identification of

ble

{ September 6,

for an armed

ommitted earlier

appellant had in

otgun shells and

ed to kill Jody

aged to escape

sptured.

celine discovered

s September 10

uy M in Oregon

investigators ar

ve .410 shotgun

? gauge shotgun

ctim's decom-

ewing, later

records. The

. shotgun wound

ed that when he

ot know the gun

hot, according to

Wait. The jury

STATE v. BOLIEK Mo. 849

Cite as 706 &. W.2d 847 (Mo.banc hd]

found appellant guilty of capital murder

and imposed the ceath sentence.

I

{1} Appellant first contends that ex-

cluding prospective jurors who would not

consider death as a possible punishment for

the crime charged violates the Sixth and

Fourteenth Amendments of the United

States Constitution, as well as Article I,

§ 5 of the Missouri Constitution and § 546.-

130, RSMo 1978. The exclusion of prospec-

tive jurors who indicate they would not

consider imposing the death penalty has

been held to be constitutional by the Su-

preme Court Lockett ». Ohio, 438 US.

586 (1978). We consistently have approved

challenging for cause prospective jurors

who indicate that they cannot impose the

death sentence, State v. Gilmore, 697

S.W.2d 172 (Mo. banc 1985); State v. Ma-

lone, 694 S.W.2d 723 (Mo. banc 1985),

State v. Johns, 679 S.W.2d 253 (Mo. banc

1984)

Il

(2) Appellant raises several evidentiary

issues. Initially, appe'!ant argues that the

admission of testimony indicating that he

possessed a knife was irrelevant and preju-

dicial. Since appellant has failed to pre

serve this point, we review it under the

plain error rule. Rule 29.12(). Appel-

lant’s own attorney elicited this testimony,

and no request was made to have the jury

instructed to disregard the reference to &

knife. Under these circumstances, there

was no.error on the part of the trial court

in not, sua sponte, giving an instruction to

disregard this evidence.

Ill

{3} Appellant further argues that the

trial court erred when it allowed the state

to display a .410 shotgun before the jury

We again must review this issue under the

plain error rule, because appellant failed to

preserve the objection Although this gun

was not the murder weapon, it was in

Wait’s possession at the time of the mur-

der, and there were .410 shotgun shells

13

found at the s. ..e of the crime. The weap

on was never introduced into evidence. It

only was used to aid the jury in visualizing

the testimony concerning this weapon and

the shells found where the victim was

killed. There was no error and the point is

denied.

IV

[4] Next, appellant contends that the

trial court committed prejudicial error by

allowing one of the arresting officers to

testify that he made “a felony stop.” Ap

pellant argues that this statement was &

reference to the armed robbery appellant

allegedly committed, and it should have

been excluded as improper evidence of oth-

er crimes. The jury was never informed of

the armed robbery of the gas station, and

thus, the jury was not aware that the “felo-

ny stop” was a reference to another crime.

The jury only could have presumed that the

officer made “a felony stop” for the crime

under consideration at trial. The trial

court correctly refused to instruct the jury

to disregard the officer’s statement The

instruction was not required and only

would have signaled to the jury that there

might have been another cnme.

v

[5] Appellant also asserts that the vic

tim. sister was ineligible to be a state

witness since she was a co-defendant The

general rule is that “s defendant jointly

charged with others car.not, in 2 separate

trial of one of his [or her] co-defendants

testify for the sta'e.” State v. Blevins,

427 S.W.24 367, 364 (Mo.1968); See § 546.-

280, RSMo 1978; Supreme Court Rule 27.-

04. However, the rule against co-defend-

ants testifying against one another does

not control if the defendants were charged

in separate indictments. State v. Hayres.

510 S.W.2d 423, 424-25 (Mo.1974); State v.

Nickens, 581 S.W.2d 99, 101, 02 (Mo.App

1979). Since Harless and appellant were

charged in separate indictments, Karless

was not barred from testifying against ap

pellant.

VI

{6} Appellan ses the additional evi-

dentiary claim thac the trial court erred in

allowing testimony from two witnesses

that, in the days immediately preceding the

victim's departure from Kansas City, the

victim stated -hat she feared appellant was

going to kill her. The genera! rule is that

such statements of a declarant’s present

mental condition made out of court are

excepted from the hearsay ban. Has! &

O’Brien, Mo. Law of Evidence, § 11-18

(1984); G. Wigmore, Evidence, § 1714

(Chadbourn Rev.1976); State v. Huffman,

659 S.W.2d 571, 574 (Mo.App.1983); State

v. Singh, 586 S.W.2d 410, 417-19 (Mo.App

1979). Ordinarily, however, such state

ments are not admitted except in limited

situations when they are relevant and the

relevancy outweighs their prejudicial ef

fect. See United States v. Brown, 490

F.2d 758 (D.C.Cir.1974); State v. Singh

586 S.W.2d at 419. Trial courts are in the

best position to determine the probative

ness and prejudicia! effect of the evidence

State v. Kenley, 693 S.W.2d 79, 81 (Mo

banc 1985). Under the facts of this case

there was no abuse of discretion in permit

ting this testimony

VI

{7} Appellant avers that

erred in not granting an overnight continu

ance immediately at the close of the State's

case. The question of whether a continu

ance is appropriate is a discretionary mat

ter for the trial court. State v. Jordan

646 S.W.2d 747, 753 (Mo. banc 198 A

strong showing is required to establish an

abuse of such discretion. State v. Cuck

vich, 485 S.W.2d 16, 21 (Mo.1972). In the

case at bar, appellant's counse! ‘ud ind

cated to the court that he was ready to

proceed and had spent time with appellant

preparing the case. Counsel fully

aware of the expected length of the trial

After the state finished its case in chief

counsel for appellant requested an over

night continuance in order w prepare ap

pellant’s testimony. The court denied the

continuance bu: granted a 30 minute recess

he tma! court

was

14

and upon reconvening adjourned until the

following morning 9 am. Given these

facts, we believe ..at appellant, in fact,

obtained his requested continuance and

cannot now be heard to complain

Vill

{8} Appellant contends that the imposi

tion of death as punishment is always cruel

and unusua! punishment under the Eighth

Amendment of the Constitution of the Unit

ed States and Article 1, Section 21 of the

Constitution of the State of Missouri. The

United States Supreme Court has approved

the imposition of the death penalty when

crimina! procedures are followed which as

sure that the application of this punishment

is not discriminatory, wanton, or freakish

Barclay v. Florida, 463 U.S. 939, 103 S.Ct

3418, 77 LEd.2d 1134 (1983); Eddings +

Oklahoma, 455 U.S. 104, 102 S.Ct 869, 71

L.Ed.2d 1 (1982); Godfrey v. Georgia, 446

U.S. 420, 100 S.Ct. 1759, 64 LEd.2d 398

(1980); Green vw. Georgia, 442 U.S. 95, 99

S.Ct. 2150, 60 L.Ed.2d 738 (1979). Bell «

Ohio. 438 U.S. 6387, 98 S.Ct S77. 5§7

L.Ed.2d 1010 (1978); Lockett v. Ohio, 438

U.S. 586, 98 S.Ct 2954 LEd2d 97

(1978): Roberts v. Lousmana, 43) 5. €3:

97 S.Ct. 1993, 52 L.Ed.2d 627 (1977 Piao!

ner vw. Fiorida. 430 US. 49, 97

1 LEd 2d 393 (1977); Woodsor rth

Carolina, 428 US. 280. & 27s. 49

L.Ed.2d 944 (1976): Proffitt & Flenda 42

U.S. 242, 96 S.Ct 2960. 49

(197 Grego t core i=

>t. owt 49 LL.24 26 © Juren *

Texas. 428 5. 262. & . ‘

L.Ed 24 929 (1976), Furman » Ga

40 S ZS FZ Zi

972 © S\aAl 2 : - :

was ser « ° a |

after the Georgia statute « ‘

States Supreme Oury Ns are

tubbonaliy adequate °o¢ ‘

U.S. 153, 96 SCe 2909. 49

(1976 See God/rey eorma. 44

420, 100 S.Ct. 1759, 64 LEd 2d 398 he

Green wv. Georgia, 442 ] 99

2150, 60 LEd2d 738 (1979 This urt

also has consistently held that the capita

punishment statutes under which appellant

Gjcurned until the

a.m. Given these

ippellant, in fact,

continuance and

compiain

is that the impodsi-

ent is always cruel

under the Eighth

itution of the Unit

Section 21 of the

of Missouri. The

‘ourt has approved

ath penalty when

followed which as-

f this punishment

inton, or freakish.

U.S. 939, 103 S.Ct

1983); Eddings ».

102 S.Ct. 869, 71

"vy v. Georgia, 446

), 64 LEd2d 398

1 442 US. 95, 99

8 (1979); Bell »

8 S.Ct 2977, 57

kett v. Ohio, 438

57 LEd2d 973

mma, 431 U.S. 633

637 (1877); Gard

49, 97 S.Ct 1197

toodson v. North

96 S.Ct. 2978, 49

itt v. Florida, 428

49 LEd2d 913

428 U.S. 153, 96

9 (1976); Jurek v

6 S.Ct 2950, 49

‘man v. C-orgia,

5, 33 L.Ed.2d 346

r which appellant

> modeled closely

which the United

s declared consu

> v. Georgia, 428

49 LEd2d + 3

rorgia, 446 U.S

=d.2d 398 (1980)

S. 95, 99 S.Ct

79). This Court

| that the capital

r which appellant

. 7 Y

*. ge e>

*< gt Tp,

STATE v. BOLIEK Mo. 85]

Cite as 706 S.W2d 847 (Mo.banc

was tried are not in violation of the Missou-

ri or United States Constitutions. See e.g

State v. Foster, 700 S.W.2d 440 (Mo. banc

1985); State v. Gilmore, 697 S.W.2d 172

‘Mo. bane 1985); State v. Nave, 694 S.W.2d

729 (Mo. bane 1985); State vr. Malone, 694

S.W.2d 723 (Mo. bane 1985); State v. Aen-

ley, 693 S.W.2d 79 (Mo. bane 1985)

IX

We now turn to our statutory mandated

duty to review inaependently the sentence

imposed by the jury. § 565.011.3, RSMo

1978. Appellant’s final point; are ad-

dressed herein

Appellant does not contend his sentence

was imposec by a jury or judge mot'vated

by any arbitrary factor, and the trial court

determined that the jury was not influ-

enced by “passion, prejudice, or any other

arbitrary factor when assessing punish-

ment.” Our independent review of the

record substantiates the conclusion of the

trial judge

{9} To support the finding of an aggra

vating circumstance, we must find substan-

tial evidence to support the jury's finding

beyond a reasonable doubt. State v. Ba’

tle, 661 S.W.2d 487, 493 (Mo. banc 1983)

cert. denivd, 466 US. 993, 104 S.Ct. 2375

80 LEd.2d 847 (1984). The jury founa

appellant killed tne viccim intending to

elyminate a witness. § £.5.012.2/10), RSMo

1978. This victim was a witness to a rob

ery committed by appellant, Vernon Wait,

and another. Appellant and Vernon Wait

decided to take the victim from Kansas

City after they learned the police were

looking for her. Several witnesses testi-

fied they heard Wait say he wanted to kill

Jody Hariess because of what she had

seen, and Jill Hariess, the victim's sister

testified that on more than one occasion

appellant said they had to get rid of the

robbery witnesses. We find the evidence

adduced at trial sufficient to support the

statutory aggravating sentence found

{10} Finally, we must consider whether

the sentence impos» d is excessive or dispro-

portionate to the penalty assessed in sim-

—

i ater 53

~al VS De

* So .- Doel

ilar cases. considering both the crime and

the defendant. § 565.014.3(3), RSMo 1978.

We must examine all capita! murder convic-

tions except those where the State waived

the death penalty. State v. Bolder, 625

S.W.2d 673 (Mo. bane 1982), cert. denied.

459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983

(1983). In our analysis, we compare the

facts of the crimes together with the char

acter anc cmminal history of the defend-

ants. Although there was some evidence

of alcoho. or drug use by appellant, no

mitigating circumstances were submitted

to the jury. It is reasonable t& conciude

that appellant wounded the victim, she pled

for her life, and then, while a companion

flung and held her to the ground, appelian:

shot the victim in the head with a 12 guage

shotgun held close to her face. Compara-

ble crimes and defendants, in which we

affirmed the death penalty, include State r

McDonald, 661 S.W.2d 497 (Mo. bax

1983), cert. denied, —— U.S. ——, 105 S.Ct

1875, 85 L.Ed.2d 168 (1985), in which a

police officer was shot, wounded, theo s* ot

again at close range and killed, Stat. v.

Newlon, 627 S.W.2d 606 (Mo. bane 1982)

cert. denied, 459 U.S. 884, 103 S.Ct 185, 74

L.Ed.2d 149 (1982), reh. denied, 459 US.

1024, 103 S.Ct. 391, 74 L.Ed. 2d 529 (1°82),

in which two shotgun blasts were used to

kill the shopkeeper/robbery vieum. and

State v. Malone, 694 S.W.2d 724 (Mc. banc

1985) petition for cert. pending, in wh:ch

a cabdrver was robbed, shot, and killed

Finding no similar cases in which the de

fendant received a life sentence, we con-

clude appellant's sentence of death .s not

disproportionate to that imposed in compa-

rable cases

The judgment of the trial court is af-

firmed

HIGGINS, CJ., BILLINGS, DONNEL

LY and RENDLEN, JJ., and DOWD Sp J.,

concur

BLACKMAR, J., concurs in part and cis-

sents in part in separate opinion fi :d

ROBERTSON, J., not sitting

eyo

wert

ww: a

852 Mo

BLACKMAR, Judge, concurring in part

and dissenting in part

106 SOUTH WESTERN

I am unable to concur in the assessment

of a death sentence in this case because of

the admission of the testimony that the

victim had said that she was afraid of the

defendant.

I quite agree that, to the extent the

victim's state of mind is material, her own

declarations may be admitted under a rec

ognized exception to the hearsay rule. My

problem is that I am unable to see how her

testimony that she feared the victim has

any tendency to support an inference that

he killed her. The statement has the vices

of hearsay in that it cannot possibly be

pierced by cross-examination. See United

States v. Brown, 490 F.2d 758, 778 (D.C

Cir.1974); State v. Miller, 664 S.W.2d 229

(Mo.App. 1983)

The state glibly cites State v. Ford, 639

S.W.2d 573 (Mo.1982); State v. Jackson,

663 S.W.2d 312 (Mo.App.1983) and State v

Singh, 586 S.W.2d 410 (Mo.App.1979) for

the general proposition that the victim's

state of mind is relevant. None is in point

Ford and Jackson involved claims of self

defense in which the court felt that the

testimony of fear had a tendency to demon-

strate that the victim was not an aggres

sor. Singh included a statement that the

victim feared guns, by reason of which the

jury might think it unlikely that she had

taken up a firearm

Here the defendant tendered a theory of

accidenta! discharge not occasioned by the

actions of the victim. The victim's state

ment about fear of the defendant does not

logically refute this claim. The prejudicial

effect in suggesting deliberation, premedi

tation, and possible disposition toward vio

lence is made manifest. The principal! opin

ion suggests that admission was a matter

of discretion. Because there is no justif

able reason for admitting the evidence, any

discretion was abused

I am very much inclined to believe that

the error dic not prejudice the finding of

guilty and that ihe conviction need not be

reversed. I also believe that, if we are to

have a death penalty, the death sentence is

REPORTER, 24% iES

not disproportionate to the cases cited in

the principal opinion nor to State v. Johns

679 S.W.2d 253 (Mo. bane 1984), even

though there are quite a few more aggra

vated cases in which death was not de

creed. When the state seeks the ultimate

penalty, however, this Court should take a

strict view of trial error. I would therefore

set aside the death sentence and would

remand the case for a new trial on the

punishment phase, or for resentencing

such as the state might elect

STATE ex rel. FAITH

HOSPITAL, Relator,

v

Honorable Richard T. ENRIGHT,

Judge, Circuit Court, St. Louis

County, Respondent

No. 67657.

Supreme Court of Missouri

En Banc

March 25, 1986

Hospital! brought origina! action in pro

hibition seeking to prohibit trial judge from

allowing patients in malpractice action to

discover peer review committee documents

credential committee documents and inci

dent reports relating to physicians in un

derlying medical malpractice action. The

Supreme Court, Robertson, J., held that

(1) agents were not entitled to discover

peer review committee documents; (2) cre

dential committee findings and delibera

tions were not exempt from discovery un

less they specifically concerned health care

provided patients; and (3) prohibition was

not available to preclude trial court trom

allowing discovery of incident reporis

Order accordingly

IN THE

MISSOURI! SUPREME COURT

STATE OF MISSOURI! )

}

Respondent, )

vs No 66684

)

WILLIAM THEODORE BOLIEK, JR., )

)

Appel lant

MOTION FOR REHEARING

Comes now appellant, by and through undersigned

pursuent to Rules 30.26 and 84.17 V.A.M.R moves th

withdraw its opinion heretofore rendered and to rehea

cause As grounds for said request appe ant submit

1 This Court’s opinion, siip op at 5-6 over

material matter of fact, pointed out in Judge Biackma

concurring in part and dissenting in part, that Jody

statement abou fear of the defendant does not ogica

appellant's theory of accidental discharge not occas

actions of Ms Harless The evidence in this case wa

Harliess had been shot twice, the first time n the st

the second time in the head Ms Harliess’'s death res

the shot to the head Siip op at 2-3 Appellant ci

trial that although he fired the first shot, he did n

gun was loaded, and that the second shot was fired by

Wait. Siip op. at 3. Because on appellant's theory

fire the killing snhot, Ms. Hariess’s alleged statemen

feared appellant would kill her did not counter ppe

coun

uv

ry

lad

v Oo

laa ie) re

@

Oo

sei,

v

oY

Oo

@

testimony. Accora gly, such statements were : relevant for

the purpose of refuting appellant's testimony, ang, appellant

submits the prejudicial effect of such statement otherwise

militates against its admission.

_$ This Court’s opinion, stip op. at 5-6, indicates tnat

this Court overlooked the material matter of law that a

requirement for the admission of deciarations of a dececent as to

her state of mind is that such declarations be relevant. See,

e.g., State v. Ford, 639 S.W.20 573, 574 (Mo. 1982)

("Decltarations of decedent demonstrating her state of mind, where

relevant, are admissible,” emphasis added); Stace v Singh, 586

S.W.2d 410, 417 (Mo.App., $.D 1979) ("...{T]he preponcerance of

authority is that, subject to limitations, the jJeclarations cf

the decedent In a homicice case will be admitted to prove the

decedent's state of mind where that is relevant,” empnasis

adced). in this case, the declarations of the decedent were not

relevant to any proper matter. Rather, as indicated In Judge

Blackmar’s opinion, such statements had the prejudicial effe

suggesting deliberation, premecitation, and a possibie

disposition toward violence. Accordingly, appellant contends

that such statements were not admissible under the dcececent'’s

state of mind exception to the hnearsay ruie.

3. This Court’s opinion, slip op. at €, Indicates that “re

principal opinion over!iooked the material matters of fact that

although the trial! court, after granting a-pe!lant a thirty

minute recess in which to review the state's evidence with n!s

>

attorney prior to presenting the defense case, after reconvening

18

adjourned until tr final morning, the trial c “t took such

evening recess only after a ltengthy discussion with defense

counsel! in the presence of the jury (Tr 422-23). Moreover, as

indicated In appellant's suppliementa! brief at 21-22, the

negative effect of the triai court’s reluctance to grant a

continuance was magnified by the prosecutor's cross-examination

of the appellant regarding the continuance (Tr. 468-69), and the

prosecutor’s closing argument in which he stated: “Here’s a man

whose [sic] gonna take his Iles and fit ‘em, and he had plenty of

time. He needed pienty of time yesterday and today to prepare

his testimony, even though he had had months and months to do so

and had known what the evidence was many times” (Tr. 547).

Appei lant contends that the cumulative effect of the court's

initial refusal to grant appellant a continuance, together witr

the discussion in the hearing of the Jury, the prosecutor's

cross-examination of appellant concerning the continuance, and

his comment on the continuance in closing, was to punish

appellant for exercising his constitutional rights to counsel! ans

due process, and thus constitutec an abuse of discretion on the

part of the trial court.

WHEREFORE, for the reasons stated herein, appellant ur

this Court to withdraw its opinion and grant a rehearins o “his

cause in order that the aforementioned issues may more fully and

properly be presented to this Court for its consideration

19

ray submitte~

Kathleen Muse y —

MOBare 30438

EE

U

Lew Kol!ias

MOBa-@ 28184

20938 East Greer Meadows Ra

Columbia, MO 65203-3698

(314) 442-1101

CERTIFICATE C= SERVICE

hereby certify that a true anid correct copy of the foregoing

tion was maileco postage prepaid this Ya daey of

mgt i , 1986, and sen= by way of first class mail to the

Hippo — of Attorney General, P.O. Bex 899, Jefferson City, MO

65102.

Kec MA the \

Kathieen Mur pny-Mark |

a

~

CierRn OF THE SUPREME COLRT

STATE OF MISSOLRI

POST OFFICE BOX 150

JEFFERSON CiTy, MISSOURI

THOMAS Tf. SIMON

TEL BPOwt

casas 65102 (914) TO). exes

April 15, 1986

Ms. Kathleen M. Markie

Mr. Lew Kolias

209 B East Green Meadows Road

Columbia, MO 65203

In re: State of Missouri vs. William Theodore Boliek, Jr. No. €“68

Dear Ms. Markie and Mr. Kolias:

This is to advise that the Court this day entered the

following order in the above-entitied cause

A ° a far ~ 4 , Fw “arian Jato

App. S motion for rehearing overruled. Execution date

set for June 19, 1986."

Very evhty yours7y

——

|S —

2 ———

Yi 2ntGr Ye 6H 6 6

Clerk

cc Attorney General

Warden, MSP

Office of the Governor

William Theodore Boliek, Jr.

— vaww

Civpriust © TT.

wee UAL wUus &

Iu the Supreme Court of Missouri

«¥& w Ve

vs APPEAI.

7 a no" ‘«@ -

r ADppe.aiante

William Theodore Bolier, Jr

Nou of this ae. come cgain the perties a

ere cing u sufficientin oarisec Of anc r 0

fat gryrente scic, in oma esaid. ON the

Y Inv’ -

force and effect. and that the sa ent

herein expendea. cnc hare execul.on thie efor 4?

thet the sentence p"onounced cgains: {ne saic

or pe.iani Lercin. © r)

- meee * @ or ~~ w ~ = f "nt

Circuit Court of Camcer nt be a ‘

Tnw28e daw 1O*- liine aise S ¢

executed on 4.i¥e. SUG the 47 dev of June Is

(Opinion filed

STATE OF MISSOURI—Sct

1 THOMAS F SIMON, Cierk of tne Supreme Court of the Siate of Missouri. certif

foregoing ws c fuli. true ard compieie iranscript of the jucement of seic Supreme Cour ‘

f or Januar’ c 190 86 5++

of record at the 4 iii 7 cssion eof. 19 = cnd ont ev et!

Varrk ra

day of maren 19 86 | in the adove entitied couse

Giten under my hand and sea! of said Court. at tne ¢

i5th icy of

Jefferson, this wr 4

in tne, EP —,,

(eye ag Crenk

Pe, — — oa D.C

22

RELEVANT MISSOURI STATUTES

565.001, RSMo 1978. Capital murder def ined.--Any person who

uniawfully, wilifulty, knowingly, deliberately, and with

premeditation kills or causes the kitting of another human being

iS guilty of the offense of capita! murder.