Petition for Writ of Certiorari — Taylor v. Missouri

. Supreme Court, U.S.

FILED

97 781 ws 25197

No

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

WILLIAM EDWARD TAYLOR

Petitioner,

-vs-

STATE OF MISSOURI

Respondent

v

ON PETITION FOR WRIT OF CERTIORARI

TO THE WESTERN DISTRICT OF THE

MISSOURI COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

TO THE WESTERN DISTRICT OF THE

MISSOURI COURT OF APPEALS

Willard B. Bunch

310 Armour Road

North Kansas City

Missouri 64116

Telephone (816) 421-4334

Attorney For Petitioner

Pte re Nl nd parma ea te eter AO Nn

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE MISSOURI COURT OF APPEALS

PROPERLY CONSIDERED “INEVITABLE DISCOV-

ERY,” WHERE THE ISSUE WAS NEVER RAISED

BY THE STATE OF MISSOURI, IN DETERMINING

THERE WAS NO PREJUDICE TO PETITIONER

CAUSED BY SEIZURES PURSUANT TO A

SEARCH WARRANT ISSUED BY A DISQUALI-

FIED JUDGE, OR WHETHER THIS SUA SPONTE

CONSIDERATION IMPROPERLY PLACED UPON

THE PETITIONER THE BURDEN OF ANTICIPAT-

ING AND REFUTING A POSSIBLE “INEVITABLE

DISCOVERY” ARGUMENT?

WHETHER THE PURPOSE OF THE EXCLUSION-

ARY RULE, AS RECOGNIZED IN U.S. V. LEON,

486 U.S. 154 (1984) WOULD BE SERVED BY AL-

LOWING A WARRANT TO LAWFULLY ISSUE TO

SEIZE EVIDENCE ALREADY SUPPRESSED FOR

USE IN THE SAME PROCEEDING IN WHICH THE

EVIDENCE WAS SUPPRESSED, AND CONSE-

QUENTLY, WHETHER A DETERMINATION ON

THE BASIS OF “INEVITABLE DISCOVERY UN-

DER A LAWFUL WARRANT,” THAT THERE IS NO

PREJUDICE RESULTING FROM THE SECOND

SEIZURE SERVES OR DEFEATS THE PURPOSE

OF THE EXCLUSIONARY RULE?

WHETHER THE PETITIONER, IN A TRIAL FOR

FIRST DEGREE MURDER, (DEATH PENALTY

WAIVED) WHEREIN THE JURY WAS IN-

STRUCTED, IN ACCORDANCE WITH STATE LAW,

THAT THE ONLY SENTENCE WHICH COULD BE

i

IMPOSED FOR FIRST DEGREE MURDER WAS

LIFE WITHOUT THE POSSIBILITY OF PROBA-

TION OR PAROLE, WAS DENIED DUE PROCESS

OF LAW WHEN THE COURT ESSENTIALLY GAVE

NO ANSWER TO THE JURY’S INQUIRY AS TO

THE “LENGTH” AND MINIMUM TIME TO SERVE

FOR PAROLE ELIGIBILITY SHOULD THE DEFEN-

DANT BE SENTENCED TO LIFE IMPRISONMENT

FOR MURDER IN THE SECOND DEGREE?

PARTIES:

There are no parties to this cause not mentioned in the

caption.

TABLE OF CONTENTS

Page

AUTHORITIES CATR) in cc icons iv

QUESTIONS PRESENTED FOR REVIEW ......00000...... i

PETITION FOR WRIT OF CERTIORARI ......0.... eee |

COTA AS GF CSI aiicstseicseecsvatacburmigsccenmcstivinioinnes l

FURR TIN cas ccinnsicnue nein baa iistelcaiinren 2

CONSTITUTIONAL, STATUTORY, AND..........00.0. cee 3

COURT RULE PROVISIONS INVOLVED

STATEMENT GR "TRIE Cie ivvsscksctncetcs dacinsdeserncaenesct 4-7

REASONS FOR GRANTING THE WRIT .......00..... 8-14

I THIS COURT SHOULD GRANT THE WRIT

IN ORDER TO DETERMINE THE PROPRI-

ETY, UNDER NIX V. WILLIAMS 467 U.S. 431,

AND BREWER V. WILLIAMS, 430 U. S. 387,

il

nese —

I

III

(1977) OF THE RAISING OF THE “INEVI-

TABLE DISCOVERY” EXCEPTION TO THE

EXCLUSIONARY RULE SUA SPONTE BY

AN APPELLATE COURT, AND WHETHER

SUCH CONSIDERATION UNFAIRLY RE-

LIEVES THE STATE OF THE BURDEN OF

DEMONSTRATING BY A PREPONDER-

ANCE OF THE EVIDENCE THAT EVI-

DENCE WOULD INEVITABLY HAVE BEEN

LAWFULLY DISCOVERED EVEN HAD THE

UNLAWFUL QUESTIONING, SEARCH,

ETC. INVOLVED NOT TAKEN PLACE. ... 8

THIS COURT SHOULD GRANT THE WRIT

IN ORDER TO EXAMINE WHETHER OR

NOT EVIDENCE, ONCE EXCLUDED BE-

CAUSE UNLAWFULLY OBTAINED,

SHOULD BE ALLOWED TO BE INTRO-

DUCED IN THE SAME PROCEEDING, OR

WHETHER IT WOULD MORE APPROPRI-

ATELY SUIT THE PURPOSE OF THE EX-

CLUSIONARY RULE IF EVIDENCE UN-

LAWFULLY SEIZED, AND EXCLUDED

FOR THAT REASON, COULD NEVER BE

INTRODUCED IN THE SAME PROCEED-

RM Ceictescsbsdiatade bibtoniuksecholgis onnntuntenlh waparebeiies 10

THIS COURT SHOULD GRANT THE WRiT

IN ORDER TO REVIEW WHETHER DUE

PROCESS REQUIRES THAT WHERE THE

GREATER OFFENSE SUBMITTED CAR-

RIES A SENTENCE OF LIFE IMPRISON-

MENT WITHOUT PAROLE, AND THE JURY

IS SO INSTRUCTED BY THE VERDICT DI-

ill

RECTING INSTRUCTION ON THAT OF-

FENSE, THE JURY ALSO BE INSTRUCTED

THAT A LIFE SENTENCE FOR THE LESSER

OFFENSE SUBMITTED CARRIES A SUB-

STANTIAL MINIMUM TERM TO SERVE

BR IIES FADE civessdssncuctasiccssexesemmbvedenes 12

COOINCTATBIOINS snticicciisiicrcaiuningncoteninebncaaial 15

APPEAR pivsisistusdiaiwunsannne SEPARATELY BOUND

TABLE OF AUTHORITIES CITED

CASES

Brewer v. Williams, 430 U.S. 387, (1977) ..............ccccceeeeeeeees 8

Commonwealth v. Black, 576 A. 2d., 423 ........cccscceseseceeeens 1]

Nix Vo Willianns, 467 U.S. S31, LEGG) wiccchcncsicdicsccssctccacsescoeses 9

People v. Rocha, 312 N.W.2d 657 (Mich., 1981) ............05. 1]

People v. Scaramuzzo, 185 N.E. 578, (Ill. 1983) ............08. 1]

Simmons v. South Carolina, 512 U.S. 154 (1994) ............. 13

State v. Cornett, 381 S.W.2d., 878, (Mo. 1964)................... 13

State v. DeLane, 503 A.2d. 903 (N.J. -) ....cccccceseeseesceesseneess 1]

State v. Hicks, 707 P. 2d. 531, (Az App., 1958),. ............04 1]

Stewart. v. State, 681 S.W.2d 774 (Tex. ) .............cccceseceeeees ll

Thomas v. State, 220 P. 977 (Ok. Crim App. 1932)............. 1]

United States v. Leon 468 U.S. 897 (1984) ...........0..ccccce eee 11

United States v. Lipschitz, 148 Fed. Supp. 774,

fp oR SB, Bd ss 9 g SARUM Reel ae enna Rene ane SORE 11

ee o—

Sg,

CONSTITUTIONAL PROVISIONS

Fourth Amendment to the Constitution .................cccccccc0e- 8,11

of the United States

Fifth Amendment to the Constitution of the United States . 14

Fourteenth Amendment to the Constitution ........................ 14

of the United States

STATUTES

Revised Statutes of Missouri, §565.020, ....................ccceeeeeees 3

Revised Statutes of Missouri, (repealed) 558.019.3 ............ 12

Revised Statutes of Missouri, §565.030 ...............ccccccceeeeeeee 12

RULES

Rule 30.26, , Missouri Supreme Court Rules, ...................00. 2

Rules 83.02, Missouri Supreme Court Rules, ..................06. 2

Rule 83.03, Missouri Supreme Court Rules ..................0:0068. 2

MISCELLANEOUS

Missouri Approved Instructions, 313.00 notes on Use........ 12

Missouri Approved Instruction 313.02 ..........cccceeceeeseeeeee 12

No

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

WILLIAM EDWARD TAYLOR

Petitioner,

-Vs-

STATE OF MISSOURI

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

WESTERN DISTRICT OF THE

MISSOURI COURT OF APPEALS

Petitioner, William Edward Taylor, respectfully prays

that this court issue a writ of Certiorari to review the judgment

of the Western District of the Missouri Court of Appeals, dis-

cretionary review of which judgment was denied by the Su-

preme Court of Missouri, on May 27, 1997.

CITATIONS TO OPINIONS

The Opinion of the Western District of the Missouri

Court of Appeals in this matter was handed down on February

18, 1997, in case number WD 51906. It is published as Strate v.

Taylor, 945 S.W.2d 675 no.3, (Mo. App. 1997). The Order of

the Missouri Supreme Court, in case number 79872, denying

Petitioner's Application for Transfer, entered on May 27, 1997,

is not published.

BASIS FOR JURISDICTION

Petitioner seeks review in this court, of a judgment en-

tered by the Western District of the Missouri Court of Appeals,

the highest court of the state in which he is entitled to review as

of right on the issues raised. The opinion was handed down on

February 18, 1997, and a copy of the slip opinion appears at

Appendix, P.12.

Petitioner timely moved for rehearing or transfer to the =

Supreme Court of Missouri, Pursuant to Rules 30.26, and 83.02,

Missouri Supreme Court Rules, on March 5, 1997. The Mo-

tion and the Suggestions in Support of the Motion appear at

Appendix, PP. 21, 26. The Motion was denied on April 1, 1997.

A copy of the Notice of the denial of said application appears

at Appendix, P. 33.

Petitioner’s application for Transfer, filed in the Supreme

Court of Missouri, in accordance with Rule 83.03, Missouri

Supreme Court Rules, was timely filed on April 16, 1997. The

Application and the Suggestions in Support of the Application

appear at Appendix PP.34, 43. On May 27, 1997, the Missouri

Supreme Court entered its Order denying transfer. A copy of

the Notice appears at Appendix P. 50. Under rule 83.02, Mis-

souri Supreme Court Rules, motions for reconsideration of such

orders “shall not be accepted or filed.” °

Because the rights Petitioner claims were denied him

are guaranteed by the Constitution of the United States, spe-

cifically, the fourth, fifth, and fourteenth amendments thereto,

Petitioner claims that this court has jurisdiction to review the

judgment by Certiorari under Title 28, U.S.C. § 1257.

2

———— o

CONSTITUTIONAL PROVISIONS, ETC.

INVOLVED IN THE CASE

(Relevant constitutional, statutory and rule provisions, and

Approved Criminal Instruction language appear in the Ap-

pendix to this Petition)

Fourth Amendment, Constitution of the United States

Fifth Amendment, Constitution of the United States

Fourteenth Amendment, Constitution of the United States

28 United States Code, §1257 (Certicrari Jurisdiction)

§565.020, Revised Statutes of Missouri (First Degree Murder

Defined and punishment fixed)

§565.021, Revised Statutes of Missouri (Second degree Mur-

der Defined and punishable as Class “A” felony)

§558.011.1(1), Revised Statutes of Missouri, (Punishment for

class “A” felony)

§565.030.2, Revised Statutes of Missouri (Trial procedure, First

Degree Murder.)

Missouri Approved Instructions-Criminal, Notes on use 313.00

note 5(A) (2) (Submission of last paragraph of MAI-

CR 313.02, punishment, in first stage of trial.)

Missouri Approved Instructions-Criminal 313.02, and Note 3,

Notes on use. (Submission of imprisonment for life

with out parole in death penalty waived cases)

Rule 30.26, Missouri Supreme Court Rules (Motion for rehear-

ing)

Rule 83.02, Missouri Supreme Court Rules (Motion in Court

3

of Appeals for Transfer to Missouri Supreme Court)

Rule 83.03, Missouri Supreme Court Rules (Application to Mis-

souri Supreme Court for Transfer from Court of Ap-

peals)

STATEMENT OF THE CASE

Petitioner was convicted in the circuit court of Nodaway

County, Missouri, of murder in the first degree, in violation of

Revised Statutes of Missouri, §565.020, and sentenced to life

in prison without possibility of probation or parole, Appendix,

P. 8, after the prosecution waived the death penalty.

The victim was Petitioner’s wife of fifteen years. There

was evidence that the marriage had to that point been free of

strife, and in support of Petitioner’s defense of not guilty by

reason of mental disease or defect excluding responsibility, that

he had in recent months become a victim of delusional disor-

der, jealous type, to the extent that he was unable to appreciate

the wrongfulness of his actions.

The victim was run over by a combine, apparently acti-

vated by a piece of string tied to its “hydrostat lever,” enabling

Petitioner to pull the lever from a position standing on the ground

beside the combine. There was controversy over whether

Petitioner's wife crawled under the combine to retrieve the body

of a cat, killed and thrown under the combine by Petitioner, or

whether the wife was thrown under the combine during or after

a struggle with Petitioner. The latter scenario conflicted with

the version of the killing told by Petitioner to the defense psy-

chiatrist, and was vigorously argued by the state against the

“mental disease or defect” defense.

A substantial portion of the evidence in support of the

“struggle theory “ advanced by the state came from photographs,

4

SS...

a videotape, and measurements, of the combine itself, which,

according to the state, supported a conclusion that certain fa-

cial injuries to Petitioner’s wife could not have been caused by

contact with the ground or the combine while it ran over her in

the manner testified to by the defendant. Evidence of this sort

was the subject of two defense motions to suppress.

Petitioner’s first “Motion to Suppress Physical Evi-

dence” sought the suppression of, inter alia, photographs, dia-

grams, and reenactments done using the combine, during two

searches of Petitioner’s premises within the first two days after

the killing. (Appendix, P. 57 paragraph | (f). After an eviden-

tiary hearing, the court, by letter', instructed the Circuit Clerk

to prepare a docket entry suppressing “any matters seized by

the state during the warrantless searches of November 11 and

12, 1995 (sic for 1994) None of the photos or diagrams may be

used; no simulation or testing conducted during these searches

may be referred to during the trial.” (Appendix, P.61 )

Subsequent to the suppression of the above-mentioned

evidence, the state obtained a search warrant to seize the com-

bine, (Appendix P.52), in an ex parte proceeding before

Nodaway County Associate Circuit Judge Glenn Deitrich, who

had previously disqualified himself, sua sponte, from the pre-

liminary hearing (Appendix P. 51).

Petitioner filed his second Motion to Suppress, raising

various grounds, including that Judge Deitrich having disquali-

fied himself from the cause, any order he issued touching on

the same subject matter was void, including the search war-

'Because a motion for change of judge had been granted, Associate Circuit

Judge Daniel Czamanske of Platte County, Missouri, was designated to hear

the case. He instructed the Clerk by mail as to certain docket entries. This

entry was not physically made, but from the way the trial was conducted, it is

clear counsel and the court had no doubt as to its efficacy.

rant, and that, because the purpose of the warrant was to recre-

ate evidence suppressed because of the first, illegal search, the

information used to obtain the evidence was the “fruit of the

poisonous tree.” (Appendix 63)

The second Motion to Suppress was overruled. The is-

sue was preserved by objection at trial, and by Motion for Judg-

ment of Acquittal or in the Alternative for New Trial. (Appen-

dix P. 67)

The court submitted verdict directing instructions for

First Degree and Second Degree Murder. The Instruction sub-

mitting First Degree Murder instructed the jury that, if they

found Defendant guilty, they must sentence him to “life im-

prisonment, without eligibility for probation or parole.” (Ap-

pendix, P. 84). concerning Murder in the Second degree, the

jury was instructed that the permissible sentences were:

1. life imprisonment

2. Imprisonment at a term fixed by you but not less

than ten years and not to exceed thirty years.

After three hours of deliberations, the jury inquired of

the court as follows:

“In second degree life imprisonment, how long is a

life sentence? of that life sentence, what is the mini-

mum number of years before being eligible for parole?”

To which the Court made the written response,

“Please be guided by the instructions.”

(Appendix, P. 86)

In his Motion for New Trial, Petitioner claimed error in

failing to instruct the jury that when sentenced to life impris-

onment for Second degree murder, a defendant could not be

6

released on parole until a minimum of twenty-five years had

passed, and that there is no requirement in Missouri law that a

person sentenced to life imprisonment ever be released. (Ap-

pendix 67 Paragraph 10)

The Missouri Court of Appeals, Western District, did

not inquire into the lawfulness of the warrant, because it found

that “the information obtained from the combine would have

been discovered inevitably by a legitimate search warrant.”

Appendix P.15.) In his Motion for Rehearing and Transfer filed

before the Court of Appeals, and in his Application for Trans-

fer filed in the Missouri Supreme Court, (Appendix P. 21 and

34) Petitioner asserted that by finding “inevitable discovery”

without this question ever being raised by the state, the court

shifted to him the burden of anticipating and negating this is-

sue, and also questioned whether a lawful warrant can ever is-

sue for evidence suppressed in the same cause.

The Petitioner’s timely application for transfer, filed in

the Supreme Court of Missouri, which exhausted his remedies

in the state courts, was denied on May 27, 1997. (Appendix, P.

50)

REASONS FOR GRANTING THE WRIT

lI. THIS COURT SHOULD GRANT THE WRIT IN

ORDER TO DETERMINE THE PROPRIETY,

UNDER NIX V. WILLIAMS 467 U.S. 431, AND

BREWER V. WILLIAMS, 430 U. S. 387, (1977) OF

THE RAISING OF THE “INEVITABLE DISCOV-

ERY” EXCEPTION TO THE EXCLUSIONARY

RULE SUA SPONTE BY AN APPELLATE COURT,

AND WHETHER SUCH CONSIDERATION UN-

‘AIRLY RELIEVES THE STATE OF THE BUR-

DEN OF DEMONSTRATING BY A PREPONDER-

ANCE OF THE EVIDENCE THAT EVIDENCE

WOULD INEVITABLY HAVE BEEN LAWFULLY

DISCOVERED EVEN HAD THE UNLAWFUL

QUESTIONING, SEARCH, ETC. INVOLVED NOT

TAKEN PLACE.

The Western District of the Missouri Court of Appeals

held that regardless of the illegality of the search challenged by

defendant, the evidence obtained would have been “inevitably

discovered” by obtaining a lawful search warrant. (Appendix,

P. 15) Before the Circuit court of Nodaway County, Petitioner

objected to the introduction of photographs, measurements, and

a videotaped demonstration, involving a combine seized pur-

suant to a search warrant obtained from a judge who had previ-

ously disqualified himself from the case. (Appendix P.51) Peti-

tioner had claimed that disqualification deprived the judge of

jurisdiction, under Missouri law, to do any act with relation to

the subject matter of the alleged murder of Debra Williams by

Petitioner, and that without a lawfully issued warrant, the search

was in violation of the Fourth Amendment to the Constitution

of the United States

In Brewer v. Williams, 430 U.S. 387, (1977) this court

found that certain evidence (the body of the murder victim)

had been obtained by the :functional equivalent of question-

ing,” in violation of the defendant's right to counsel, but be-

cause absence of prejudice under the “inevitable discovery”

doctrine had been raised, the court did not rule outright that the

evidence should have been suppressed. Rather, the court re-

manded the cause in order to give the prosecution the opportu-

nity to demonstrate by a preponderance of the evidence, that

the body would have inevitably been discovered, even without

the illegally obtained statement. Eventually, in Nix V. Will-

iams, 467 U.S. 431, (1984) the court considered the evidence

submitted in support of “inevitable discovery,” including a

massive search for the victim or her body, and found it suffi-

cient to support a determination by the preponderance of the

evidence that the body would inevitably have been found.

In both Williams cases, this court placed the burden of

demonstrating “inevitable” discovery on the prosecution. It is

submitted that the Western District of the Missouri Court of

Appeals placed no burden whatsoever on the prosecution in

this case, but, in fact, placed on the Petitioner the burden of

anticipating and refuting “inevitable discovery,” despite the fact

that this theory was never raised by the state.

The Missouri Court of Appeals presented another rea-

son to find “no prejudice” in the failure to suppress the evi-

dence obtained in the search. The Petitioner suggests that it

should not preclude this court from considering the “inevitable

discovery” question, because it is patently illogical.

As noted, in the Statement of the case, Petitioner’s men-

tal disease or defect defense was seriously undermined by the

prosecution's theory that his wife was thrown or pushed under

the combine after a struggle. The Western District of the Mis-

souri Court of Appeals noted that the state presented expert

witnesses who testified to their conclusions that Petitioner did

not suffer from a mental disease or defect excluding responsi-

bility (Appendix, P.12) , and used the presence of these wit-

nesses as a further grounds for its determination that defendant

was not prejudiced by the evidence supporting the “struggle

theory.” It is suggested that there is no logic to such a determi-

nation. The psychiatric or psychological witnesses presented

by the state testified to conclusions different from those ex-

pressed by Petitioner’s expert, based on essentially the same

facts he relied upon, and upon their own examinations of the

Petitioner. They did not give any testimony to refute the facts

on which Petitioner’s expert based his opinion,,.

It was the search and seizure which made possible tes-

timony supporting the “struggle theory.” That is the prejudice

suffered; and it is not cumulative to the state’s expert testimony

on mental disease or defect. This court should consider the

propriety of a sua sponte appellate determination that evidence

would have “inevitably” been discovered

Ii. THIS COURT SHOULD GRANT THE WRIT IN

ORDER TO EXAMINE WHETHER OR NOT EVI-

DENCE, ONCE EXCLUDED BECAUSE UNLAW-

FULLY OBTAINED, SHOULD BE ALLOWED TO

BE INTRODUCED IN THE SAME PROCEEDING,

OR WHETHER IT WOULD MORE APPROPRI-

ATELY SUIT THE PURPOSE OF THE EXCLU-

SIONARY RULE IF EVIDENCE UNLAWFULLY

SEIZED, AND EXCLUDED FOR THAT REASON,

COULD NEVER BE INTRODUCED IN THE

SAME PROCEEDING.

on i .

In Petitioner’s Brief on Appeal, he pointed out the ques-

tionable propriety under the Fourth Amendment, of using in a

proceeding, evidence once suppressed in the same proceeding

10

as illegally obtained. (Appendix, P. 82), noting that such prac-

tices as obtaining a subpoena for records, where an undercover

agent’s testimony aboui those records had been suppressed,

(United States v. Lipschitz, 148 Fed. Supp. 774, (E.D.N-Y,

,1957)), or attempting to validate an unlawful search by get-

ting an ostensibly lawful warrant after the fact, State v. Hicks,

707 P. 2d. 531, (Az App., 1958),. Thomas v. State, 220 P. 977

(Ok. Crim App. 1932). See also People v. Scaramuzzo, 185

N.E. 578, (Ill. 1983); Commonwealth v. Black, 576 A. 2d., 423;

People v. Rocha, 312 N.W.2d 657 (Mich., 1981); State v.

DeLane, 503 A.2d. 903 (N.J. _); Stewart. v. State, 681 S.W.2d

774 (Tex. ) had been condemned.

This court’s decision in United States v. Leon 468 U.S.

897 (1984) determined that decisions concerning the exclusion

of evidence should be based on a common-sense approach to

the question of whether suppression would further the purpose

of the rule, which is to deter unlawful conduct by the authori-

ties. Where the conduct is such that the court determines the

evidence should be suppressed, the deterrent impact would

clearly be undermined, by allowing the state another opportu-

nity to seize and introduce the evidence. Allowing the authori-

ties a chance to “make up for” an unlawful search by later fol-

lowing the rules substantially undermines the protection against

a first unlawful search.

The trial Court here had found that two prior entries

onto Petitioner’s property had been unlawful searches, and sup-

pressed evidence obtained. (Appendix P. 61) The state was

permitted to essentially introduce the very same evidence by,

after the suppression, getting a warrant and searching for

Petitioner’s combine. Because the state essentially lost noth-

ing by its unlawful activity, there could be no lasting deter-

rence.

Il. THIS COURT SHOULD GRANT THE WRIT IN

ORDER TO REVIEW WHETHER DUE PROCESS

REQUIRES THAT WHERE THE GREATER OF-

FENSE SUBMITTED CARRIES A SENTENCE OF

LIFE IMPRISONMENT WITHOUT PAROLE,

AND THE JURY IS SO INSTRUCTED BY THE

VERDICT DIRECTING INSTRUCTION ON

THAT OFFENSE, THE JURY ALSO BE IN-

STRUCTED THAT A LIFE SENTENCE FOR THE

LESSER OFFENSE SUBMITTED CARRIES A

SUBSTANTIAL MINIMUM TERM TO SERVE BE-

FORE PAROLE.

For offenses committed before Augus* 28, 1994, in Mis-

souri, a person sentenced to life imprisonment, who had no

prior felony convictions, was required to serve a minimum of

fifteen years imprisonment before becoming eligible for pa-

role. Revised Statutes of Missouri, (repealed) 558.019.3. In

the version of that statute which became effective August 18,

1994, it was required that persons sentenced for dangerous felo-

nies, including second degree murder, must serve 85% of their

sentence before being paroled. Life imprisonment was to be

treated as a thirty-year sentence for such purposes. Thus, if

Appellant had been convicted of Second Degree Murder, rather

than First Degree Murder, he would have been required to serve

a minimum of twenty-five and one half years before becoming

eligible for parole.

As required by Revised Statutes of Missouri, §565.030,

(Appendix P. 3), in Death Penalty Waived cases, guilt and pun-

ishment were submitted to the jury together, and the verdict-

directing instruction, (Appendix P. 84) included a paragraph

required by Missouri Approved Instructions, 313.00 notes on

Use, (Appendix P. 7) and Missouri Approved Instruction 313.02,

(Appendix P. 7) which advised the jury that if it found defen-

12

a

dant guilty, they must assess punishment at life imprisonment

without the possibility of probation or parole. The verdict di-

rector for Second Degree murder, (Appendix, P. 85), as in all

non-capital offenses, informed the jury that it could impose a

life sentence, but made no mention of parole. (App. P.85)

In Simmons v. South Carolina, 512 U.S. 154 (1994) the

court remarked that it is “impossible to ignore “the reality,

known to the ‘reasonable juror,’ that, historically, life term de-

fendants have been eligible for parole.” Where one instruction

tells the jury it can impose life, without the possibility of pa-

role, and the other mentions only life, it is even harder to ig-

nore the jury’s probable conclusion that parole would be pos-

sible if Petitioner were convicted of Murder in the Second De-

gree.

Here, the jury’s inquiry made it obvious that the jury

was considering a second degree murder conviction instead of

first degree murder; that it was aware of a possibility of parole

, and concerned with the possibility of an early parole. (Ap-

pendix P. 86) One might also add to the quote from Simmons

that the “reasonable juror” will usually underestimate the length

of time which will be served prior to parole. The change in

Missouri law, effective just months before this offense occurred,

makes it even more likely that those who “knew something”

about “how long a life sentence really is” would underestimate

the probable minimum time served.

In a situation similar to that in Simmons, supra, the Mis-

souri Supreme Court recognized the due process implications

to a capital defendant where the jury is allowed to consider the

possibility of parole from a life sentence. State v. Cornett, 381

S.W.2d., 878, (Mo. 1964). After the reversal of the death sen-

tence in Cornett, Parole was not mentioned to Missouri Juries,

except for the first degree murder instruction which, as noted

above, informs the jury that if the defendant is not sentenced to

13

death, he will be sentenced to life imprisonment without the

possibility of parole.

Simmons held that a capital defendant can be deprived

of due process, under certain circumstances, when a jury is not

told that the alternative life sentence would be served without

parole. In this death penalty waived case, the jury necessarily

knew that the Petitioner would have been eligible for parole if

convicted of second degree murder, rather than first degree

murder. It is submitted that by permitting the jury to continue

deliberations after its inquiry, without informing it of the man-

datory minimum term Petitioner would face if convicted of

second degree murder and sentenced to life, the court deprived

this Petitioner of due process of law, as guaranteed by the Fifth

and Fourteenth Amendments to the Constitution of the United

States, by chilling the jury’s consideration of the lesser offense;

Certiorari should be granted to define when a non-capital

defendant’s due process rights are violated by failure to in-

struct On Minimum prison terms.

CONCLUSION

For the foregoing reasons, Petitioner prays that a writ

of certiorari issue to review the judgment of the Western Dis-

trict of the Missouri Court of Appeals.

RESPECTFULLY SUBMITTED

heh bis

Willard B. Bunch Missouri Bar # 19527

310 Armour Road

North Kansas City

Missouri

64116