The State of Missouri set the execution of Anthony Joe LaRette Jr. for 12:01 a.m. on November 29, 1995, and the last of these five opinions was filed the day before. On November 27 a federal district judge had stayed the execution on a new habeas petition built around one piece of paper, the request for fees his trial lawyer submitted after the 1981 trial, which LaRette said proved the lawyer had spent less time with him than he later swore. The Eighth Circuit examined the form, found it would not bear that weight, called the petition an abuse of the writ and vacated the stay. LaRette was put to death by lethal injection at the Potosi Correctional Center early the next morning, aged forty-four, after fourteen years under sentence of death, longer than any other condemned prisoner in Missouri at the time.
Mary Fleming was eighteen and lived with her mother and sister in an apartment complex in St. Charles, west of St. Louis. On the morning of July 25, 1980, after both had left for work, she walked to the grocery store beside the complex, cashed a check and bought groceries. A friend who telephoned between 10:30 and 11:00 heard a man she did not know say Mary was not there and ask who was calling. At about eleven Mary ran bleeding across a yard and a street to a neighbors’ door and collapsed; her throat had been cut and she had been stabbed twice in the chest, and she died despite everything the medics and the hospital could do. A pot of eggs was still on a lit burner in her kitchen, and a half-made green salad sat on the counter. People in the neighborhood had seen a white man circling slowly, alone, in a cream-colored convertible, and a witness saw a man run from the apartment to it and drive away. The car belonged to the man LaRette had been staying with, who had lent it to him that morning for what LaRette called a job interview.
The Supreme Court of Missouri’s decision on the direct appeal, about ten thousand words by Judge Billings in March 1983, is the account of the crime and the trial: the telephone calls in which LaRette admitted the killing to that friend while a police officer listened on an extension, his words in the Shawnee County jail in Topeka (“I’m responsible for her death”), his later story of a hitchhiker who did the stabbing, and the Warren County jury’s finding that the murder involved torture and depravity of mind. Senior Judge Seiler agreed that LaRette was guilty and dissented from the death sentence, arguing that the court had not shown how this case differed from the many Missouri capital murders in which juries chose life. Two short Court of Appeals decisions, in 1985 and 1988, reject his post-conviction motions. The Eighth Circuit’s January 1995 habeas ruling turns on the claim he pressed to the end, that his trial lawyer never put before the jury a twenty-year history of head injuries, seizures and temporal lobe epilepsy; the court’s answer was that LaRette had instructed counsel to argue the hitchhiker defense and then refused to take the stand at the penalty phase, after his lawyer spent the whole recess trying to persuade him.
Mary Fleming’s murder is the only killing LaRette was ever convicted of, and it is the only one these courts consider. At the penalty phase the jury heard about a 1974 rape conviction in Douglas County, Kansas, and earlier convictions for burglary, theft and pocket picking, and Judge Seiler pointed out that the record said nothing about the rape beyond the fact of the conviction. On death row LaRette began confessing to killings in other states, and corrections officials said at his execution that he had given them information pointing to as many as thirty murders in ten states. None of that appears in these opinions or was tested in a courtroom. The 1983 court also states its facts, as it says itself, in the light most favorable to the State.
These are published opinions of the Supreme Court of Missouri, the Missouri Court of Appeals and the United States Court of Appeals for the Eighth Circuit, and as works of government they carry no copyright; anyone may read, quote or reprint them. The courts printed three private witnesses in full: the friend whose call was answered by a stranger, the man whose car LaRette borrowed and whose telephone calls drew out his admissions, and the woman who saw him run to the convertible and identified him at trial after she had been hypnotized. We have reduced them to M.E.S., R.R. and R.H., and the nickname the friend gave on the telephone to “E.” Mary Fleming, the judges, the lawyers and the psychiatrist who examined LaRette before trial keep their names.
The text is the Harvard Law School Library’s digitized copy of the official reports, from the Caselaw Access Project, with each court’s footnotes gathered after its opinion. It is clean enough that the few faults stand out: the grocery store prints once as the “gro-eery store,” the Eighth Circuit has R.H. watching a man run to “R.R.’s ear” where it means his car, and a citation to Guinan v. Delo has become “Guinan v. Deb.” We have closed ten hyphens that the print column split, LaR-ette and ha-beas among them, and put a space back where the rule number in “27.26 proceeding” had run into the next word. “Stilleto” is the court’s own spelling, and nothing else has been touched.
STATE of Missouri, Respondent, v. Anthony Joe LaRETTE, Jr., Appellant.
No. 63569.
Supreme Court of Missouri, En Banc.
March 29, 1983.
Rehearing Denied April 26, 1983.
Donald C. Tiemeyer, St. Charles, for appellant.
John Ashcroft, Atty. Gen., Kelly Klopfen-stein, Asst. Atty. Gen., Jefferson City, for respondent.
[OPINION BY BILLINGS, Judge. type=majority]
BILLINGS, Judge.
Defendant Anthony J. LaRette, Jr., was sentenced to death for the capital murder of 18-year-old Mary Fleming. In this appeal he contends he was denied his statutory 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 circumstances 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 certain evidentiary rulings. We affirm.
In our determination of whether there was sufficient substantial evidence to support the guilty verdict of capital murder, we consider the facts in evidence and all favorable inferences reasonably to be drawn therefrom in the light most favorable to the State and disregard all contrary evidence and inferences. State v. Franco, 544 S.W.2d 533 (Mo. banc 1977), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 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 approximately 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 convertible automobile had been seen slowly circling the neighborhood. There was only one individual in the convertible, a white man, the driver.
Sometime between 10:30 and 11:00 a.m. a friend of Mary Fleming, M.E.S., telephoned the Fleming apartment. A strange male voice answered the telephone. M.E.S. asked to speak to Mary. The male voice said she was not there and asked who was calling. The girl replied “E.” and the male voice said he would have Mary call her back and hung up. M.E.S. testified the male voice “was a high pitched voice because he seemed to be laughing or something, being in a good mood or maybe drinking or something.” Because M.E.S. had talked with Mary Fleming earlier that morning and did not know the voice that answered 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, identified 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 apartment 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 before she collapsed, bleeding profusely. Police and medical aid arrived shortly. Despite on-the-scene and hospital emergency medical efforts, Mary died shortly thereafter.
Death was attributed to the young blond girl having bled to death. Her throat had been cut from ear to ear by a sharp instrument 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 penetrating her heart. The second stab wound had passed through the heart, leaving the tip of a metal blade in her lung. Her forehead and right arm were bruised and she had numerous cuts, termed “defense wounds”, to her fingers and hands.
An examination of the Fleming apartment quickly demonstrated it was the scene of the bloody slaying. In the front living room there was a pair of cutoff jeans on the floor, blood and hair on the walls, blood on the end and coffee tables, and a large puddle of blood in the middle of the floor. An unopened and blood splattered purse, containing money, was on a coffee table. In a hallway between the living room and kitchen was a trail of blood. Female panties, spotted with blood, were on the kitchen floor. The back door was blood smeared and there was a trail of blood across the back porch and steps. A burner on the kitchen stove was still on and a pot of water with eggs in it were on the burner. A partially completed green salad was on a kitchen counter.
For several days before July 25 defendant had been staying with R.R. On that Friday morning defendant was dressed in light trousers and a button shirt. He drove R.R. to work in R.R.’s yellow Buick convertible and borrowed the car “to go on a job interview”. Defendant picked R.R. up at 1:15 p.m. and at that time was dressed in a t-shirt and cutoff jeans. R.R. never again saw the clothing defendant was wearing Friday morning.
Two days later, Sunday, R.R. drove defendant to defendant’s parents’ home in Topeka, Kansas. As R.R. was leaving for the return trip, defendant said: “If you have any problems down there, call me and I’ll take care of them.” R.R. did not know what defendant was talking about.
By Tuesday, July 29, R.R. 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 telephone calls elicited admissions from the defendant 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-eery store and he followed her back to her apartment. He said he had thrown the murder weapon, a stilleto-type lock blade knife, in the river. He told R.R. that he went into the Fleming apartment for the purpose of burglarizing it and the victim walked in on him. He said he struck the girl and knocked her down; that he had stabbed her; and, cut her throat as she attempted to run away from him. Although he had earlier told R.R. he did not know why he had killed the girl, he later said she started yelling and tried to run. At the time of one of the telephone conversations a police officer at R.R.’s residence listened on an extension telephone and heard the defendant say the knife he 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 defendant about the murder early in the morning of August 7,1980, in the Shawnee County jail in Topeka, Kansas, after first 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 R.R.’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 apartments. 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 hitchhiker 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 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 evening. He was again advised of his constitutional 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 entered 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 “[TJhat is when it happened. She lied to me. She promised me she wouldn’t scream.” Defendant said she was just like “... all the others. My wife and my mother-in-law always lied to me. If she hadn’t lied to me it wouldn’t have happened.” 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 R.R.’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 continued until December for the setting of various motions. On January 7, 1981, defendant 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 defendant’s motion for a change of venue on January 14,1981. The case was lodged in Warren 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 deposed witness. The State consented to the motion and the court, treating it as one for continuance, found “[T]he 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 completed. 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 recordings by the State Court Administrator’s Office, had not yet been completed. On the same date the court entered an order continuing 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.
Section 545.780, RSMo 1978, expressly 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 pretrial motions, change of venue, and continuances because of the preparation of the preliminary hearing transcript. 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 v. Franco, 625 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 wantonly 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 outrageously or wantonly vile, horrible or inhuman because defendant’s acts involved both torture and depravity.
We believe the evidence surrounding the brutal, heinous, and senseless slaying of the 18-year-old victim in this case fully warranted the jury to find both aggravating circumstances. It is obvious that Mary Fleming had ample opportunity to anticipate her death and her slaughter-type killing supports the further finding of depravity 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 exhibits, as well as the medical testimony, demonstrate 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 hallway. 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.
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 aggravating 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). Furthermore, as noted in State v. Mercer, 618 S.W.2d 1, 10 (Mo. banc 1981), where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstances does not taint the proceedings so as to invalidate the other aggravating circumstance found and the sentence of death thereon. Having found the threshold requirements of statutory aggravating circumstances, the jury could also consider the defendant’s prior convictions, including rape, together with all of the evidence adduced at trial, in imposing the death sentence. State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982).
Defendant’s contention that § 565.012.-2(7), RSMo 1980 Supp., is facially violative of the United States and Missouri Constitutions has been expressly considered and rejected by this Court. State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982), cert. denied, - U.S. -, 103 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 measure up to constitutional standards.
Defendant next contends the evidence 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 evidence and inferences reasonably drawn from circumstances surrounding the murder are sufficient. State v. Turner, 623 S.W.2d 4, 7 (Mo. banc 1981). Premeditation 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. Strickland, 609 S.W.2d 392, 394 (Mo. banc 1980).
The jury could reasonably find that defendant, armed with a sharp, stilleto type lock-blade knife, drove slowly around the 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 apartment for the express purpose of committing a crime; that the jury could reasonably find, contrary to his hitchhiker and burglary 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 apartment. The obvious struggle in the living room where her shorts were found. The bloody trail to the kitchen where her panties 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.
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 deliberation. 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.
Defendant’s complaint regarding the admission of the testimony of the Shawnee County Deputy Sheriff because this officer had not given him Miranda warnings prior to interrogating him is totally without merit. Contrary to defendant’s unsupported assertion, the evidence clearly shows there was no interrogation of defendant by the Kansas officer concerning the killing of Mary Fleming.
Aside from the fact defendant had previously been given Miranda warnings and signed a waiver, the uncontradicted evidence was that during the course of the deputy’s advising defendant of his rights with regard to extradition, defendant spontaneously 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 defendant by the deputy sheriff when defendant made the incriminating statement and the statement being unsolicited and volunteered, 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).
The trial court properly excluded defendant’s proffered evidence regarding obscene telephone calls received by Mary Fleming during the year prior to her slaying. Disconnected and remote acts, outside the crime itself, cannot be separately proved for the purpose of pointing up someone 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 commission of the crime by another is not admissible. 22A C.J.S. Criminal Law § 622b at 451; State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982); State v. Umfrees, 433 S.W.2d 284 (Mo. banc 1968). Defendant’s suggestion that the person responsible for the obscene telephone calls may have been the killer ignores defendant’s multiple admissions that he choked, struck, slashed and stabbed Mary Fleming.
Defendant’s assignment of error in the admission of the cutoff shorts, panties, and shoes because the evidence did not establish they belonged to the victim is denied. Demonstrative evidence is admissible if it throws any relevant light upon a material matter in issue. State v. Bolder, supra, at 688. Articles, instruments and weapons that have a tendency to explain the manner in which a crime is committed that are found at or near the scene of the crime are generally admissible. State v. Neal, 591 S.W.2d 178 (Mo.App.1979). Such evidence is usually held admissible if it tends to connect the defendant with the crime, prove the identity of the deceased, shows the nature of any wounds, or throws any relevant light upon any material matter in issue. State v. Williams, 606 S.W.2d 254 (Mo.App.1980). Mary was wearing cutoff 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 removing 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 evidentiary hearing was conducted on the voluntary nature of defendant’s statements. Defendant did not testify but the court heard the testimony of the St. Charles officers, the stipulated testimony of a Topeka medical 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 cigarette. 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 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 defendant requested and was given a soda. Defendant was lodged in the St. Charles jail and at some point prior to his second questioning by the detectives he was given a hamburger and coffee. The second interview commenced about 7:40 p.m. and before defendant was questioned he was again given 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.
The record shows that defendant was given the warnings required by Miranda on the two occasions he was interviewed by the St. Charles detectives and that he understanding^ 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 voluntariness 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 state 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 S.W.2d 745, 751-52 (Mo. banc 1978). The state must show that ‘defendant was effectively advised of his rights and he then intelligently and understanding^ declined to exercise them.’ State v. Alewine, 474 S.W.2d 848, 851 (Mo.1971).
The determination of the voluntariness of a statement is made in the first instance by the trial court. The trial court must determine the credibility of witnesses, 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 finding 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.
The trial court did not abuse its discretion in admitting photographs of the victim’s hands, portraying the “defense wounds”. Defendant avers that the coroner’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 authorities.
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 victim’s name and after his examination filled out the official death certificate. A comparison 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 discretion 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 coroner had testified as to the nature of the cuts to Mary’s hands before he identified the questioned photographs. We find no error.
Defendant’s final point of alleged trial error is novel but without legal support. He contends: “The trial court violated the defendant’s right to due process of law when it admitted photographs of an alleged get-away vehicle because the display of vehicles used by investigation officers was unduly suggestive in that the witnesses were allowed to choose between only two photographs.”
Defendant suggests we expand the constitutional safeguards surrounding the identification 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.
We turn now to defendant’s contention that the sentence of death in this case is excessive and disproportionate.
The General Assembly has mandated that this Court shall consider the matter of the death sentence being imposed and requires us to determine (§ 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 penalty imposed in similar cases, considering both the crime and the defendant.
We find nothing in the record to suggest the sentence resulted from the influence of passion, prejudice, or any other arbitrary factor. There was substantial evidence to support the jury’s finding of statutory aggravating circumstances. We conclude that considering the instant crime and the defendant in this case that the penalty imposed is not excessive nor disproportionate to the penalty imposed in similar cases. State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982).
The judgment is affirmed.
RENDLEN, C.J., and HIGGINS, GUNN and DONNELLY, JJ., concur.
WELLIVER, J., concurs in result in separate opinion filed.
ROBERT E. SEILER, Senior Judge, concurs 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.
[OPINION BY WELLIVER, Judge, type=concurrence]
Execútion 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 evidence was insufficient to support the jury’s finding of the statutory aggravating circumstance.
The death penalty may not be imposed unless the jury finds beyond a reasonable doubt one of the twelve statutory aggravating circumstances. § 565.012(4)-(5), RSMo Supp. 1982. Those aggravating circumstances 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 wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind.” Appellant makes no argument regarding the fact that the trial court inverted the language 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 wantonly vile, horrible and inhuman.” Appellant’s argument is unclear, but it appears to be that the evidence was insufficient to support a finding of torture and that because the jury did not find “torture or depravity of mind” in the disjunctive language of the statute the lack of evidentiary support vitiates the finding of the statutory aggravating circumstance.
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 constitutes the aggravating circumstance. The aggravating circumstance is that the murder is “outrageously or wantonly vile, horrible 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 torture or depravity of mind — is prerequisite to a finding of the aggravating circumstance. Here the jury found the aggravating circumstance. That it so found because it apparently thought the murder involved both torture and depravity of mind is inconsequential. I agree with the principal opinion that the evidence supports a finding of both, but only a finding of one or the other was necessary to a finding of the aggravating 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 language itself forecloses that reading. Second, having made that characterization, the principal opinion states that the evidence was sufficient to support a finding of “both statutory aggravating circumstances,” 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 unnecessary 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. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982). In Zant the Supreme Court certified to the Georgia Supreme Court the following question: “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 aggravating 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 circumstances 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 similar rationale underlying the use of statutory aggravating circumstances. See State v. Shaw, 636 S.W.2d 667, 675 (Mo.banc), cert. denied, - U.S. -, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982); State v. Bolder, 635 S.W.2d 673, 682 (Mo. banc 1982), cert. denied, — U.S. -, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983). Nevertheless, we have never decided the question that the principal 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 considerable 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 aggravating 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 circumstance which was not otherwise admissible, 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 sentence 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. Perhaps by that time, too, we will have the guidance of the Supreme Court’s final decision in Zant.
[OPINION BY ROBERT E. SEILER, type=concurring-in-part-and-dissenting-in-part]
ROBERT E. SEILER,
Senior Judge, concurring in part and dissenting in part.
I concur with that portion of the principal opinion which affirms the conviction of capital 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 opinion, demonstrate that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
If there is anything clear it is that for a death penalty statute to be valid, the statute must provide a “principled way to distinguish this case, in which the death penalty 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 results ... in similar cases”); Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (White, J. concurring) (“meaningful basis for distinguishing 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 cannot avoid the conclusion that an individualized decision is essential in capital 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 required ... 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 sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant” and § 565.014.5(2) which authorizes us in instances of excessiveness or disproportionality to set the death sentence aside and remand for resentencing, as we did in State v. McIlvoy, 629 S.W.2d 333, 342 (Mo. banc 1982).
The principal opinion disposes of this aspect of the appeal with a single sentence at the close of the opinion, stating the conclusion that the penalty imposed is not excessive or disproportionate and citing, without elaboration, State v. Stokes, 638 S.W.2d 715 (Mo., banc 1982).
In Stokes, a thirty-three year-old divorcee, 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:
“... a shallow incision, 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 abrasions 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 subcutaneous fat on the right chest in the shape of a round puncture; and, a slight abrasion to the right knee; liver mortis was evident; examination of the vagina revealed spermatoza and it was thought that the victim had sexual intercourse within six hours of death; that the cause of death was manual strangulation although some linear abrasions apparently had been caused by the apron; that the victim was alive at the time of injury to the chest area as reflected by the condition 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 manslaughter, one second degree murder, three first degree robberies, three escapes, armed criminal action and theft of an automobile.
The jury assessed the death penalty and
found four statutory aggravating circumstances:
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 depravity and as result thereof outrageously or wantonly, vile, horrible or inhuman. § 565.012.2(7).
4. At the time of the murder defendant 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 returned to the “torture or depravity of mind” aggravating circumstance and divided the evidence on this aggravating circumstance 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.
3. 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 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-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 something 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 assuredly 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 attention been available, according to the pathologist. As it was, the victim bled to death, almost a gallon of blood being found in the left chest. Vaginal examination disclosed no evidence of recent sexual activity.
Presumably the Stokes jury relied op 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 demonstrated to be present in the case at bar. If Stokes is the bench mark, this case does not meet it.
The main thing which the Stokes case and the present case have in common is that in each the jury found the statutory aggravating circumstance of § 565.012.2(7) — the one involving torture or depravity of mind. Some of our statutory aggravating circumstances permit an objective determination, such as, for example, whether the capital murder is committed for something of value, 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 emotionally 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 proposition that where a jury in one case finds the statutory aggravating circumstance of § 565.012.2(7) and assesses the death penalty it follows that the death penalty is not excessive or disproportionate simply because another jury in some earlier case also found the same class of aggravating circumstance 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 depravity, 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 aggravating 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 process, as established by the cases cited at the outset hereof. The jury was the sole determiner 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 circumstance of torture or depravity under § 565.-012.2(7) being submitted to the jury. Others involve capital murders by shooting.
Making comparisons with similar cases involves a subjective analysis on our own part, but we have the time and the means by which to compare cases and then articulate why or what it is that causes us to reach the end result. Where do we find ourselves as to excessiveness or disproportionality 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 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 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 punishment and so, under § 565.006.2, defendant 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 punishment 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 proportionality. 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 circumstance 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. Bolder, 635 S.W.2d 673, 685 (Mo. banc 1982) in support. Footnote 8 in the Shaw case refers 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. banc 1982), the court, in considering proportionality of the aggravating circumstance of killing a police officer 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.
In State v. Scott, No. 68989, recently transferred to the court of appeals, defendant, 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, defendant 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. 62878, recently transferred to the court of appeals, defendant, 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 strangling, not stabbing, and the statutory aggravating circumstance of torture or depravity 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. banc 1981)], in the strangulation killing of a 23 year-old woman. 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 husband. 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 engaged in an illicit romance. She had previously 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. Defendant 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 hostage 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 assessed 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 compare cases. In Baskerville, the defendant was convicted of three counts of capital murder. The state sought the death penalty. One victim was shot twice, one was shot once, and a third, a child who begged for his life, was shot once. The jury, however, 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 murder 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 contemplate 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, 623 (Mo. banc 1982), the victim, a woman employee of the bank in 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 without 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 imposition 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. Bolder, 635 S.W.2d 673, 684-85 (Mo. banc 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 distinction (and I do not believe it can be made here), then I do not believe the death penalty can stand in the particular case under consideration. I would therefore set aside the death sentence and remand for sentencing.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The jury also found the non-statutory aggravating circumstance that defendant had been convicted of rape in Kansas in 1974.
In addition to defendant’s 1974 rape conviction the evidence in the punishment phase of the trial showed prior convictions for burglary, theft and pocket picking. Section 565.006.2, RSMo 1978. See: State v. Blair, 638 S.W.2d 739, 756 (Mo. banc 1982), cert. denied,-U.S. -, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983).
All statutory references are to RSMo Supp. 1982.
All statutory references are to RSMo 1978.
In the 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 information as to the degree of rape, its severity, the age or condition of the victim or the length of sentence. The sentence could not have been too severe, as defendant obviously was out of prison in 1980. So far as rape itself is concerned, 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).
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 separate wounds to the heart — torture and depravity in the extreme. Defendant had three days earlier announced his intention to kill the victim, even specifying that he would do it by stabbing him some sixty odd times. In Hudgins, 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 bathtub 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.
Anthony Joe LARETTE, Appellant, v. STATE of Missouri, Respondent.
No. 48923.
Missouri Court of Appeals, Eastern District, Division Two.
Nov. 26, 1985.
Motion for Rehearing and/or Transfer Denied Jan. 14, 1986.
Application to Transfer Denied March 27, 1986.
Dorothy Mae Hirzy, Public Defender, Beth S. Ferguson, Asst. Public Defender, St. Louis, for appellant.
John Munson Morris, Mark Anthony Richardson, Asst. Attys. Gen., Jefferson City, for respondent.
[OPINION BY REINHARD, Judge. type=majority]
REINHARD, Judge.
Movant appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. We affirm.
Movant was convicted of capital murder after a jury trial and sentenced to death. His conviction was affirmed on direct appeal by the Missouri Supreme Court in State v. LaRette, 648 S.W.2d 96 (Mo. banc 1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983), which contains a detailed discussion of the murder. Movant subsequently filed a pro se Rule 27.26 motion and counsel was appointed. Counsel filed an amended motion in which movant alleged that his appointed counsel at trial was ineffective for failing to investigate and present evidence concerning movant’s history of mental illness. He further alleged that the jury selected at his trial was “death-qualified”, and thus conviction-prone, in violation of his Sixth Amendment right to a jury composed of a fair cross-section of the community.
On May 18, 1984, movant filed a pro se motion to remove his attorney from the 27.26 proceedings and requested the appointment of new counsel. On May 24, 1984, movant’s attorney filed a motion to withdraw as counsel. Both motions were denied, and the 27.26 hearing was held as scheduled on June 1, 1984.
On appeal movant contends that the hearing court erred in concluding that movant was not denied effective assistance of counsel at trial and in concluding that movant was not denied his constitutional right to a jury composed of a fair cross-section of the community. He further asserts that the hearing court erred in denying movant’s motion to remove counsel and his attorney’s motion to withdraw.
Movant’s principle point appears to be his assertion that he was denied effective assistance of counsel due to his attorney’s “failure to investigate and present evidence of [movant’s] medical history and failure to present testimony of [movant’s] father, especially during the penalty phase of the trial.”
The record reveals that the trial court ordered a pretrial psychiatric examination of movant at State Hospital No. 1 in Fulton, Missouri pursuant to § 552.020, RSMo 1978. The report of that examination contained the following findings:
1) That the accused has no mental disease or defect within the meaning of Section 552.010.
2) That the accused has the capacity to understand the proceedings against him and can assist in his own defense.
3) That the accused did know and appreciate the nature, quality and wrongfulness of the alleged conduct and was able to conform his conduct to the requirements of the law.
4) That the accused does not require inpatient hospitalization pending further proceedings. He is not a suicidal risk at this time. If he is convicted and has to go to the penitentiary, he states then he will try to take his life. He thinks he would die in the penitentiary anyway and has very little to live for.
Trial counsel testified at the motion hearing that he was aware of movant’s history of treatment for mental illness allegedly related to a brain injury received as a child. He further said that he discussed with movant the possibility of presenting evidence of movant’s mental condition at trial; however, movant told counsel that he did not want to raise a mental disease or defect defense and stated that he “would rather die than go back to a mental hospital.”
Movant’s defense at trial was that a hitchhiker committed the murder. Movant chose not to testify because he believed, as did counsel, that his four prior convictions, including one for rape, would be extremely damaging to his case considering the circumstances of the victim’s death. Counsel also said that movant had been a “terrible” witness when he testified at the pretrial hearing on a motion to suppress. Counsel had discussions with movant’s mother and father regarding movant’s history of medical treatment, but movant’s father was not called to testify at trial. Counsel said that he was instructed by movant not to have movant’s father testify because movant was concerned about his father’s health. Movant’s father had a serious heart condition which had required frequent hospitalization, and movant believed that travel and the tensions of the trial would be harmful to his father. Counsel also testified that he believed movant’s father had nothing substantial to offer the defense and the motion hearing record reveals that movant’s father was in custody at the time of trial, charged with attempting to help movant escape.
After movant was found guilty of capital murder counsel explained the sentencing phase of the trial and told movant this was his opportunity to testify regarding his “childhood incident” and his marital discord. Movant said he would not take the stand and “simply hung his head and sat there through the entire proceedings.” Thus the only evidence regarding mitigating circumstances presented during the sentencing phase was a stipulation as to the expected testimony of movant’s mother, which contained information regarding movant’s mental state and marital problems shortly before the murder and upon returning home several days after the crime.
Counsel testified that at all times during his representation of movant he believed him to be “lucid” and capable of making decisions; further, counsel noted no evidence of mental defect or disease.
The hearing court found that counsel did not call movant’s father as a witness because he was specifically directed not to do so by movant. The court further found that counsel followed movant’s instruction to offer no evidence of mental illness during the trial and “that movant, when given the opportunity to testify at the punishment phase, refused to testify.” The court then concluded that movant received “competent and adequate representation in the presentation of his defense.” We agree. Movant did not demonstrate that counsel “fail[ed] to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and that he was prejudiced thereby.” Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979). Counsel clearly did not breach this reasonableness standard by acceding to his client’s desires during the guilt phase of the trial.
In regard to counsel’s actions in connection with the punishment phase, we note that there were at least three potential sources of proof of movant’s mental and emotional problems: movant’s testimony; his parent’s testimony; and his medical records. Counsel was not required to utilize any particular one of these sources or pursue them all. The decision not to have movant’s father testify had a reasonable basis, which we have already discussed. A stipulation concerning movant’s mother’s expected testimony, which contained information about movant’s emotional state and marital problems prior to the crime, was read to the jury. Counsel was also prepared to have movant testify, and spent the entire recess prior to the punishment phase attempting to convince him to do so; however, movant refused to take the stand. Thus, this was not a situation where counsel neglected to prepare any evidence regarding mitigating factors; that more evidence was not introduced was a consequence of movant’s recalcitrance. We conclude that counsel’s conduct fell “within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 694 (1984).
Further, movant failed to demonstrate that prejudice resulted from the alleged errors of trial counsel. The United States Supreme Court noted in Strickland, 104 S.Ct. at 2069, that “[w]hen a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” We believe that the aggravating circumstances here were overwhelming:
... the evidence surrounding the brutal, heinous, and senseless slaying of the 18-year-old victim in this case fully warranted the jury to find both aggravating circumstances.... [torture and depravity 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 exhibits, as well as the medical testimony, demonstrate 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.
State v. LaRette, 648 S.W.2d at 101-102. In light of these circumstances no prejudice could have resulted from the alleged errors of trial counsel.
Movant next contends that he was denied his Sixth Amendment right to a jury composed of a fair cross-section of the community because the jury was “death-qualified.” Two jurors were excluded from the jury panel after each stated that she would not consider imposing the death penalty if chosen as a juror. Trial counsel included in the motion for new trial, as an assignment of error, the trial court’s denial of defendant’s motion challenging the death penalty questions asked on voir dire; however, this issue was not pursued on direct appeal.
Movant’s position on this issue has been repeatedly rejected by the Missouri Supreme Court. See, State v. Bannister, 680 S.W.2d 141, 146 (Mo. banc 1984), cert. denied — U.S. -, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985); State v. Johns, 679 S.W.2d 253, 265 (Mo. banc 1984), cert. denied — U.S. -, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985); State v. Byrd, 676 S.W.2d 494, 499 (Mo. banc 1984), cert. denied — U.S. -, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985); State v. Preston, 673 S.W.2d 1, 8-9 (Mo. banc 1984), cert. denied — U.S. -, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984). Furthermore, the United States Supreme Court in Wainwright v. Witt, — U.S. -, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-852 (1985), held that a juror may be excluded for cause because of his or her views on capital punishment when those views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” We recognize that our decision is contrary to Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), cert. granted sub nom. Lockhart v. McCree, — U.S. -, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985); however, we are bound not by that Eighth Circuit case but by the previously cited Missouri and United States Supreme Court decisions. Movant’s contention is without merit.
We find no abuse of discretion in the court’s rulings on movant’s motion to remove counsel and counsel’s motion to withdraw, thus movant’s final assignment of error is also without merit.
Judgment affirmed.
DOWD, P.J., and CRIST, J., concur.
Movant had attempted to commit suicide immediately prior to his arrest.
Anthony Joe LARETTE, Appellant, v. STATE of Missouri, Respondent.
No. 54202.
Missouri Court of Appeals, Eastern District, Division Three.
July 26, 1988.
Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 1988.
Application to Transfer Denied Oct. 18, 1988.
Jim Lynn, Columbia, for appellant.
William L. Webster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for respondent.
[OPINION BY SMITH, Judge. type=majority]
SMITH, Judge.
Movant appeals from the dismissal by the trial court of his motion for post-conviction relief pursuant to Rule 27.26. This is his second motion under that rule. The court dismissed the motion without an evidentiary hearing upon motion of the State. It did prepare findings of fact and conclusions of law addressing each of the claims for relief (22 in number) set forth in the motion. Movant was convicted of capital murder and sentenced to death. That conviction and sentence was affirmed in State v. LaRette, 648 S.W.2d 96 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246, (1983), rhg. denied, 464 U.S. 1004, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983), which sets forth the facts of this grisly murder in detail. Upon denial of movant’s original 27.26 motion, we affirmed in LaRette v. State, 703 S.W.2d 37 (Mo.App.1985).
Movant makes no direct attack on the trial court’s findings of fact or conclusions of law. Rather he raises two other issues. The first is that the trial court erred because movant’s counsel in this proceeding failed to ascertain all possible grounds for attacking the judgment and failed to amend the motion to set forth those grounds. The second attack is that the trial court failed to make findings of fact and conclusions of law on amendments to the motion made after the order of dismissal and presented to the court for the first time as part of movant’s motion for reconsideration. Both points are frivolous and were we dealing with other than a death penalty case we would dispose of them by order opinion.
As to the first point, we note that the grounds set forth in the motion filed by movant pro se were articulately expressed, clear and free from confusion. Counsel did amend the motion to allege why the grounds could be considered in a second 27.26 proceeding. The record does not reflect that movant had any additional valid grounds at the time of the amendment. Appellate review of post-conviction relief is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Laws v. State, 708 S.W.2d 182 (Mo.App.1986) [2, 3]; Rule 27.26(j). The trial court could hardly be erroneous in its judgment in failing to consider facts of which it was unaware. Rule 27.26 “is not intended as a springboard for attack on prior post-conviction proceedings.” Lindner v. State, 676 S.W.2d 299 (Mo.App.1984) [4]. The thrust of movant’s first point is that his counsel in this proceeding below was ineffective. That is not the purpose of our review of 27.26 orders. Id.
The second point is essentially an attempt to utilize a motion for reconsideration as a method of filing an additional 27.26 motion. The trial court ruled on the grounds before it. It did not err in failing to rule on grounds not before it at the time of its ruling. The trial court did examine the additional grounds and by letter to counsel advised it found “nothing there which changed my mind.”
We have examined the grounds set forth in the attachment to the motion for reconsideration. A large number are duplicative of those set forth in the original pro se motion filed in this case. Most were decided adversely to movant in the direct appeal or on the appeal from the first 27.26 order. Some of the grounds attack rulings made or not made in the first 27.26 proceeding. Such grounds are not properly a part of a 27.26 proceeding. Linder v. State, supra. Those could and should have been raised on the original 27.26 appeal.
Judgment affirmed.
KAROHL, P.J., and KELLY, J., concur.
Anthony J. LaRETTE, Plaintiff-Appellant, v. Paul DELO, Defendant-Appellee.
No. 94-1901.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 15, 1994.
Decided Jan. 11, 1995.
Suggestion for Rehearing En Banc Denied March 27, 1995.
Lee Lawless, St. Louis, MO, argued, for appellant.
Stephen David Hawke, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.
Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.
[OPINION BY LOKEN, Circuit Judge. type=majority]
LOKEN, Circuit Judge.
Anthony J. LaRette, a Missouri inmate under sentence of death, appeals the district court judgment denying his fourth amended petition for a writ of habeas corpus. We affirm.
I. Factual and Procedural Background
At 11:00 a.m. on July 25, 1980, eighteen-year-old Mary Fleming, bleeding profusely, ran across a street in St. Charles, Missouri, and collapsed on the doorstep of a neighbor who immediately called the police. Fleming was naked except for a pulled-up bikini top. She had been stabbed several times in the chest, and her neck was slashed from ear to ear. Her forehead and right arm were bruised, and her fingers and hands had numerous cuts, suggesting a struggle. Despite efforts by emergency medical personnel, Fleming bled to death. Police found blood scattered throughout her apartment, the obvious scene of the crime.
As Fleming ran out the back door of her apartment, a witness saw a man run out the front door of the apartment to a cream-colored convertible and drive away. Police traced the car to R.R., who told them that LaRette had borrowed the car that day for a job interview. Two days after the murder, LaRette left St. Charles for his home in Kansas. He later admitted killing Fleming in telephone conversations with R.R., who allowed a police officer to listen in on one of these conversations.
St. Charles police initially interviewed LaRette at a jail in Shawnee County, Kansas. LaRette stated that a hitchhiker was responsible for the murder. The next day, police transported him to St. Charles, where he was again interviewed and admitted killing Fleming. Prior to both interviews, LaRette signed a written waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
LaRette was convicted of capital murder and sentenced to death. The Missouri Supreme Court affirmed on direct appeal. State v. LaRette, 648 S.W.2d 96 (Mo. banc), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). LaRette then filed a motion for post-conviction relief under Mo. R.Crim.P. 27.26, arguing primarily that his trial counsel provided ineffective assistance for failing to investigate and present evidence concerning LaRette’s history of mental illness at the guilt and sentencing phases of his trial. Following an evidentiary hearing, the motion was denied, and the Missouri Court of Appeals affirmed. The state courts found that counsel was aware of LaRette’s history of mental illness, but LaRette instructed counsel not to raise a mental illness defense during the guilt phase. At the sentencing phase, LaRette refused to testify, so counsel presented mitigating testimony as to his emotional state prior to the crime through a stipulation reciting his mother’s expected testimony. See LaRette v. State, 703 S.W.2d 37 (Mo.Ct.App.1985).
LaRette then commenced this federal habeas corpus proceeding. The case was stayed twice in the district court to permit LaRette to exhaust additional state court remedies. First, he filed a successive Rule 27.26 motion, which was denied primarily for that reason. See LaRette v. State, 757 S.W.2d 650 (Mo.Ct.App.1988). During the second stay, he filed motions to recall the mandate and for state habeas relief which the Supreme Court of Missouri summarily denied. LaRette then filed a fourth amended petition with the district court, alleging over fifty grounds for habeas relief. He submitted medical records from 1959 to 1978, which his trial counsel had not obtained, and a January 1989 psychiatric evaluation report by Dr. A.E. Daniel which opined (i) that, at the time of the murder, LaRette “was suffering from a mental disease in the form of organic mental disorder due to Partial Complex Seizures, also known as psychomotor seizures or Temporal Lobe Epilepsy,” and (ii) that this disease provided “a definite case for diminished capacity" and was "a strong mitigating factor [that] should have been introduced at the penalty phase."
In a series of exhaustive memorandum opinions, the magistrate judge considered this additional medical evidence and recommended that habeas relief be denied without an evidentiary hearing, and the district court accepted that recommendation and denied the petition for a writ of habeas corpus. This appeal followed.
II. Ineffective Assistance of Counsel-Failure To Investigate and Present Evidence of Mental Illness
LaRette's primary argument on appeal is that his trial counsel was ineffective in failing to adequately investigate his mental condition and in not introducing evidence of that condition at either the guilt or sentencing phase of the trial. LaRette argues that further investigation would have uncovered "a plethora of records from hospitals and doctors" revealing a twenty-year history of temporal lobe epilepsy, head injuries, brain damage, and seizures. Larette contends that this evidence would have provided both a defense at the guilt phase and a mitigating circumstance at the penalty phase by establishing that the murder was "precipitated by [LaRette's] mental ifiness which causes intermittent rage behavior which he cannot control."
This claim was the subject of a post-conviction evidentiary hearing in state court. LaRette's trial counsel testified that he requested a psychiatric evaluation the day after he was appointed to represent LaRette. Dr. Henry Bratkowski examined LaRette and reported that he was of average intelligence, was competent to stand trial, and did not suffer from any mental disorder that would excuse him from criminal responsibility. Counsel further testified that he discussed the possibifity of presenting a mental illness defense with his client. LaRette told counsel that he (LaRette) had no mental problems at the time of the murder and instructed counsel not to present a mental illness defense because LaRette "would rather die than go back to a mental hospital." At all their pretrial meetings, counsel considered LaRette to be lucid and in control of his faculties.
At the guilt phase of the trial, LaRette instructed counsel to present the defense that LaRette was innocent because a hitchhiker had murdered Mary Fleming. After the jury found LaRette guilty of the crime, counsel spent the entire recess before the sentencing phase urging LaRette to testify about mitigating circumstances, including his history of mental illness beginning with a childhood head injury, and his marital problems immediately prior to the murder. LaRette refused to testify. During the sentencing phase, counsel introduced testimony by LaRette's mother as to his emotional state and marital problems at the time of the murder.
LaRette first argues that counsel ineffectively investigated LaRette's mental condition. Though counsel obtained a psychiatric evaluation which did not support a competency defense, LaRette contends that this evaluation was flawed because the examiner did not have LaRette's prior medical records. Therefore, counsel should have obtained those records and requested a second evaluation. However, as the state courts noted, this failure to investigate claim must be considered in light of what LaRette told his counsel-that he was competent at the time of the murder and that counsel should not pursue a competency defense.
In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. [W]hen a defendant has given counsel rca-son to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.
Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); see also Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Laws v. Armontrout, 863 F.2d 1377, 1383-84 (8th Cir.1988) (en bane), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). Taking this factor into account, we agree with the Missouri courts and the district court that counsel’s investigation did not fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.
LaRette also argues that counsel was ineffective in not presenting evidence of mental illness at the guilt and sentencing phases of the trial. The state courts concluded that counsel did not provide constitutionally ineffective assistance (i) because counsel followed LaRette’s instruction in not presenting such evidence during the guilt phase, and (ii) because LaRette’s refusal to testify frustrated counsel’s attempt to address this issue during the sentencing phase. LaRette, 703 S.W.2d at 39-40. Like the district court, we agree. Compare Singleton v. Lockhart, 962 F.2d 1315, 1321-22 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 435, 121 L.Ed.2d 355 (1992).
III. The Aggravating Circumstance Instruction
Following the jury’s guilty verdict, the trial court conducted the penalty phase of LaRette’s trial. Under the statute then in effect, Mo.Rev.Stat. § 565.012 (Supp.1980), if the jury found at least one statutory aggravating circumstance beyond a reasonable doubt, it must then consider whether the death penalty should be imposed, taking into account all evidence in aggravation and mitigation of punishment presented during the guilt and penalty phases of the trial, and it must set out in writing the statutory aggravating circumstance(s) found if it returned a verdict of death. See generally State v. Shaw, 636 S.W.2d 667, 675 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982); State v. Bolder, 635 S.W.2d 673, 683 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983).
The trial court submitted to LaRette’s jury one statutory aggravating circumstance based on Mo.Rev.Stat. § 565.012.2(7):
[Y]ou must first unanimously determine whether the murder of Mary Fleming involved torture or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible or inhuman.
$ * ‡ ‡ ‡ ‡
[I]f you do not unanimously find from the evidence beyond a reasonable doubt that the foregoing circumstance exists and that it is an aggravating circumstance, you must return a verdict fixing the punishment of the defendant at imprisonment for life....
The jury returned a verdict fixing the punishment at death. The verdict form recites that it found beyond a reasonable doubt both the statutory aggravating circumstance, “Torture, Depravity of mind and that as a result it was outrageous and wantonly vile, horrible and inhuman,” and a non-statutory aggravating circumstance, LaRette’s 1974 rape conviction in Douglas County, Kansas.
LaRette argues that this instruction is unconstitutionally vague because the term “depravity of mind” does not provide clear and objective standards that adequately channel the sentencer’s discretion in a way that can be rationally reviewed, citing Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). We rejected this precise argument in Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir.1994), another case in which the jury expressly found that the crime involved torture as well as depravity of mind. A finding of torture is sufficient to properly narrow the class of persons eligible for the death penalty. See Maynard, 486 U.S. at 364-65, 108 S.Ct. at 1859-60; Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir.1989). Moreover, as required by Mo.Rev.Stat. § 565.014, the Missouri Supreme Court reviewed the evidence and specifically found that it supports the jury's finding of torture. LaRette, 648 S.W.2d at 102. In a non-weighing state like Missouri, this review cured any error in the depravity-of-mind instruction. See Mathenia v. Delo, 975 F.2d 444, 448-50 (8th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993).
IV. Procedurally Barred Claims
LaRette raises numerous claims that were not presented to the state courts on direct appeal or in the post-conviction Rule 27.26 proceedings. These claims are procedurally defaulted under Missouri law. See Kennedy v. Delo, 959 F.2d 112, 115-16 (8th Cir.), cert. denied, - U.S. -, 113 S.Ct. 168, 121 L.Ed.2d 116 (1992) (claims first raised in motion to recall the mandate); Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th Cir.1991) (claims first raised in state habeas petition). Federal habeas relief is therefore procedurally barred unless LaRette can show cause and prejudice, or actual innocence, excusing his procedural defaults. See Sawyer v. Whitley, U.S. -, -, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992).
LaRette first argues that the district court erred in concluding that his sentencing claims are procedurally barred because the governing Missouri statute required the Missouri Supreme Court to independently review all errors in sentencing. See Mo.Rev. Stat. § 565.014.3. This contention is foreclosed by our recent decision in Nave v. Delo, 22 F.3d 802, 816 (8th Cir.1994) (under Missouri law, "[i]ssues falling outside the limited bases of mandatory review cannot be deemed to have been submitted to the state court").
LaRette next argues that he should not be procedurally barred because Missouri made its post-conviction procedures more restrictive after the time of his procedural defaults. This claim is, at the least, factually unsound. On January 1, 1988, Missouri Rule 27.26 was replaced with Rule 29.15, which expressly limits an inmate to one post-conviction motion. However, in 1987, before that change took effect, LaRette's second Rule 27.26 motion was denied because he failed to present any grounds that could not have been presented in his first Rule 27.26 motion. In other words, LaRette's procedural defaults occurred before the adoption of Rule 29.15, the change in Missouri procedure to which he now objects.
LaRette next contends that he has demonstrated cause excusing his procedural defaults in state court. "[TJhe existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). LaRette first argues that his procedural defaults should be excused because the State impeded his abifity to present post-conviction claims by rapidly resetting his execution date as the post-conviction proceedings progressed, requiring him to devote resources to obtaining stays of execution. However, this contention is unavailing because there is no showing that LaRette was prevented from raising any post-conviction claim, as McCleskey v. Zant, 499 U.S. 467, 497-98, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991), requires.
LaRette next argues that the ineffective assistance of his trial and appellate counsel should excuse his procedural defaults. However, those claims are defaulted because he failed to present them to the state courts in his initial Rule 27.26 motion. His further contention that the ineffective assistance of his state post-conviction counsel is cause excusing procedural defaults is foreclosed by our recent decision in Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994) (en banc). Finally, LaRette argues that Missouri’s failure to fund its public defender system is cause because it prevented counsel from investigating and presenting evidence of LaRette’s mental illness. As there was no ineffective assistance of counsel regarding LaRette’s alleged mental illness, this is not a factor that is “external to the defense.” See Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993).
Alternatively, LaRette argues that his procedural defaults must be excused under the “actual innocence” exception to procedural bar because the new evidence of his mental illness demonstrates that he is actually innocent of capital murder. This contention is fatally flawed in a number of respects. First, as the district court noted, it was not timely raised in this federal habeas proceeding. Second, the actual innocence exception applies “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. at 2649. As we have explained, LaRette’s claim of actual innocence is based upon new evidence of mental illness that is not the result of constitutional error at his trial. Third, LaRette’s claim of actual innocence is unpersuasive on the merits. The alleged new evidence consists of LaRette’s medical records and Dr. Daniel’s 1989 evaluation report. In light of the pretrial psychiatric evaluation and LaRette’s insistence that he was competent at the time of the murder, we cannot conclude that no reasonable juror would have found him guilty of the crime or eligible for the death penalty if this additional evidence had been introduced at either phase of the trial. See Sawyer v. Whitley, - U.S. at-, 112 S.Ct. at 2523-25; Murray v. Delo, 34 F.3d 1367, 1380-81 (8th Cir.1994); Shaw v. Delo, 971 F.2d 181, 187 (8th Cir.1992).
For the foregoing reasons, we agree with the district court that LaRette is procedurally barred from obtaining federal habeas relief on the claims that he procedurally defaulted in state court.
Y. Proportionality Review of Sentence
LaRette argues that the Missouri Supreme Court violated his Eighth Amendment and Fourteenth Amendment rights by the manner in which it reviewed the proportionality of his sentence under Mo.Rev.Stat. § 565.014.3. This contention is foreclosed by our recent decisions in Foster, 39 F.3d at 882, and Murray v. Delo, 34 F.3d at 1376-77. The statute gave LaRette notice that the proportionality of his sentence would be reviewed on direct appeal. See Mo.Rev.Stat. § 565.014.3(3). The Missouri Supreme Court then performed that review and concluded that the penalty was not “disproportionate to the penalty imposed in similar cases.” LaRette, 648 S.W.2d at 105. “The Constitution does not require us to look behind that conclusion.” Walton v. Arizona, 497 U.S. 639, 656, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990).
VI. Admission of Incriminating Statements
LaRette argues that his incriminating statements to police were improperly admitted at trial because they were involuntary and because his mental condition prevented him from knowingly and intelligently waiving his Miranda rights. After painstaking review of the trial record, the Supreme Court of Missouri rejected LaRette’s claim of involuntariness. See LaRette, 648 S.W.2d at 104-05. Like the district court, we reject this claim. A defendant’s mental condition alone is not enough to render a confession constitutionally involuntary; there must be coercive police activity which LaRette fails to allege. See Colorado v. Connelly, 479 U.S. 157, 166-67, 107 S.Ct. 515, 521-22, 93 L.Ed.2d 473 (1986); Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993). LaRette’s additional claim that his Miranda rights were not knowingly and intelligently waived — based again on his new evidence of mental illness — was not presented to the state courts and in any event flies in the face of LaRette’s pretrial psychiatric evaluation and the other evidence of his condition when he was questioned.
VII.Exclusion of a Prospective Juror
LaRette argues that a prospective juror was improperly excluded because she stated that she would vote against the death penalty unless the victim “was extremely close to [her].” The state courts rejected this claim, finding that this juror’s views on capital punishment would “prevent or substantially impair” the performance of her duties as a juror, the proper Sixth Amendment standard under Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). See LaRette, 703 S.W.2d at 40. Giving this finding the presumption of correctness to which it is entitled under 28 U.S.C. § 2254(d) and Wainwright, 469 U.S. at 429, 105 S.Ct. at 854-55, the district court’s determination of no constitutional error must be affirmed.
VIII.Testimony of Witness Who Underwent Hypnosis
R.H. identified LaRette at trial as the man she saw run from Fleming’s apartment to R.R.’s ear on the morning of the murder. Prior to trial, shortly after she initially described the man to police, R.H. underwent hypnosis in an attempt to enhance her memory. LaRette argues that his trial counsel was ineffective for not objecting to R.H.’s in-court identification as hypnotically-induced, for not cross examining R.H. on discrepancies in her initial description to police, and for not offering expert rebuttal testimony as to the suggestive nature of hypnosis.
Counsel’s pretrial motion to suppress this evidence was denied. This ruling was consistent with Missouri law at that time. See State v. Little, 674 S.W.2d 541, 543-44 (Mo. banc 1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985), and State v. Greer, 609 S.W.2d 423, 431-36 (Mo.Ct.App.1980), vacated on other grounds sub nom., Missouri v. Brown, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981). The issue was not raised on direct appeal, but this possible procedural default was excused when the Missouri courts considered it on the merits in LaRette’s post-conviction proceedings.
At the Rule 27.26 evidentiary hearing, LaRette’s counsel explained that he did not pursue the hypnosis issue at trial because R.H. had initially given a detailed description of LaRette that was the same as her description after hypnosis and therefore her in-court identification was not affected by hypnosis. The state court rejected the claim on the ground that “no new evidence was acquired as a result of’ the hypnosis. The record does not reflect that this ruling was appealed, so the issue is probably procedurally barred. In any event, although the Supreme Court of Missouri subsequently held hypnotically-induced testimony inadmissible, see Alsbach v. Bader, 700 S.W.2d 823 (Mo. banc 1985), the Rule 27.26 court’s finding that R.H.’s testimony was not hypnotically induced demonstrates that LaRette’s counsel did not provide ineffective assistance in dealing with this state law evidentiary issue at trial.
IX.Conclusion
We have carefully considered LaRette’s many other claims of constitutional error and conclude they are without merit. In addition, we agree with the district court that LaRette did not establish the right to an evidentiary hearing on questions of procedural bar or the merits of his habeas claims. See generally Keeney v. Tamayo-Reyes, — U.S. -, -, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992); Bannister v. Armontrout, 4 F.3d 1434, 1442 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994); McCann v. Armontrout, 973 F.2d 655, 658-59 (8th Cir.1992), cert. denied, — U.S. -, 118 S.Ct. 1342, 122 L.Ed.2d 724 (1993). The judgment of the district court is affirmed. LaRette’s motion for leave to file a post-argument brief is granted.
The HONORABLE EDWARD L. FILIPPINE, Chief Judge of the United States District Court for the Eastern District of Missouri.
The HONORABLE DAVID D. NOCE, United States Magistrate Judge for the Eastern District of Missouri.
All citations will be to the statutes in effect when LaRette was tried in 1981. These statutes were later repealed, and new, recodified sections went into effect in 1984.
LaRette argues that Missouri is a weighing State, and therefore the Supreme Court of Missouri did not cure the defect in the depravity-of-mind instruction because it failed to reweigh the applicable aggravating and mitigating circumstances. See Clemons v. Mississippi, 494 U.S. 738, 751, 110 S.Ct. 1441, 1449-50, 108 L.Ed.2d 725 (1990). LaRette's contention that Missouri is a weighing State is based upon his comparison of § 565.012 with state statutes from other Supreme Court capital punishment cases. However, as our decisions in Battle and Mathenia have recognized, the Supreme Court of Missouri has definitively construed § 565.012 as a non-weighing statute in cases such as State v. Shaw and State v. Bolder, supra.
This court has held that Sawyer's actual innocence standard applies to guilt as well as penalty phase issues. See Cornell v. Nix, 976 F.2d 376, 381 (8th Cir.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993). Because the Supreme Court may address this question in Schlup v. Delo, 11 F.3d 738, 740 (8th Cir.1993), cert. granted, - U.S. -, 114 S.Ct. 1368, 128 L.Ed.2d 45 (1994), we have also considered LaRette's guilt-phase claim under the somewhat different standard of Kuhlmann v. Wilson, 477 U.S. 436, 455 n. 17, 106 S.Ct. 2616, 2627 n. 17, 91 L.Ed.2d 364 (1986), and conclude that LaRette has failed to satisfy that standard as well.
Anthony J. LaRETTE, Petitioner-Appellee, v. Michael BOWERSOX, Superintendent, Potosi Correctional Center, Respondent-Appellant.
No. 95-3935.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 27, 1995.
Decided Nov. 28, 1995.
Stephen Hawke, Jefferson City, MO, for appellant.
Lee Lawless, St. Louis, MO, for appellee.
Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Anthony J. LaRette was convicted of capital murder in a Missouri state court and sentenced to death for killing Mary Fleming on July 25, 1980. After we affirmed the district court’s denial of LaRette’s fourth amended petition for a writ of habeas corpus, LaRette v. Delo, 44 F.3d 681 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995), the State of Missouri scheduled his execution for 12:01 a.m. on November 29,1995. On November 22, LaRette filed a successive habeas petition in the district court, and on November 27 that court granted LaRette’s emergency motion for stay of execution. The State moves to vacate that stay.
The facts of the case and its procedural history are set out in our prior opinion. LaRette asserts four grounds for relief in this petition. The first three allege violations of his Sixth Amendment right to counsel because the state court appointed inexperienced counsel who then failed to investigate and present evidence of LaRette’s mental illness at trial. Though the focus is somewhat different, these grounds plainly restate claims considered and rejected in the prior habeas petition. See 44 F.3d at 685-86. The fourth ground — that ineffective assistance deprived LaRette of fundamental rights — is not a separate claim for relief. Thus, all the claims not only could have been, but actually were raised in his previous federal habeas petition. This successive petition is a clear abuse of the writ which does not warrant a stay of execution unless it raises “substantial grounds upon which relief might be granted.” Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990).
To excuse an abuse of the writ, a successive habeas petitioner must show either cause and prejudice, or probable actual innocence. See McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 1470-71, 113 L.Ed.2d 517 (1991). We applied this standard in rejecting procedurally barred claims in LaRette’s first habeas petition. See 44 F.3d at 687-88. Therefore, to excuse this abuse of the writ, LaRette must come forward with new evidence of cause and prejudice, or probable actual innocence.
LaRette attempts to avoid this rigorous standard by presenting a document that, he alleges, should have been but was not part of the record in his prior federal habeas proceeding. Relying on Dobbs v. Zant, 506 U.S. 357, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993), LaRette argues that the abuse of the writ doctrine does not apply because his first habeas petition was considered on an incomplete record. But LaRette misreads Dobbs. In our view, Dobbs stands for the proposition that newly discovered evidence must be considered in a subsequent habeas proceeding. But it is considered in the context of applying the abuse of the writ doctrine, for example, in the manner the Supreme Court considered new evidence in applying the actual innocence exception in Schlup v. Delo, — U.S. -, -, -, 115 S.Ct. 851, 865, 869, 130 L.Ed.2d 808 (1995).
LaRette’s “new evidence” consists of a form entitled Request for Payment of Fees and Expenses submitted to the trial court by LaRette’s trial counsel after his August 1981 trial. LaRette argues that this document tends to establish his claim of ineffective assistance by refuting trial counsel’s testimony as to the amount of time he spent conferring with LaRette.
We have examined the document and conclude that it will not bear the evidentiary weight LaRette would give it. But more significantly, the document does not excuse his abuse of the writ. LaRette cannot show cause because the document was admittedly part of his state court file and therefore could have been obtained and presented in his prior federal habeas proceeding. See McCleskey, 499 U.S. at 497-98, 111 S.Ct. at 1472-73. And the document is not evidence of probable actual innocence that would justify relief from abuse of the writ under Schlup. Trial counsel’s request-for-fees form is at most relevant to the merits of the ineffective assistance claims that were rejected in the prior habeas proceeding. It is not evidence of LaRette’s innocence of the crime or of the death penalty.
For the foregoing reasons, we conclude that LaRette’s latest habeas petition is, on its face, an abuse of the writ as a matter of law. Accordingly, the stay of execution must be, and hereby is, vacated. See Delo v. Blair, — U.S. -, -, 113 S.Ct. 2922, 2923, 125 L.Ed.2d 751 (1993); Guinan v. Deb, 7 F.3d 111, 112 (8th Cir.), stay denied, — U.S. -, 114 S.Ct. 296, 126 L.Ed.2d 244 (1993).