State v. Roberts

Decision Date07 May 1986
Docket NumberNo. 66933,66933
Citation709 S.W.2d 857
PartiesSTATE of Missouri, Respondent, v. Roy ROBERTS, Appellant.
CourtMissouri Supreme Court

Henry Robertson, St. Louis, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

A prison guard was murdered by inmates of the Missouri Training Center for Men at Moberly on July 3, 1983. For his part in the crime appellant was convicted of capital murder, § 565.001, RSMo 1978 (repealed effective 10-1-84) and sentenced to death, 1 § 565.008, RSMo 1978 (repealed 10- 1-84), accordingly under Mo. Const. art. V, § 3 the appeal falls within the original appellate jurisdiction of this Court.

Appellant assigns as error: (1) failure to instruct on the proper mental state for accomplice liability; (2) insufficiency of the evidence to sustain a conviction of capital murder; (3) allowing improper rebuttal testimony in the punishment stage; (4) permitting "death-qualification" of the array; (5) disproportionality in the death sentence; and (6) plain error in the failure of the trial court sua sponte to control prosecutorial comment regarding: (a) the required mental state for accomplice liability; (b) appellant's supposed bad faith in failing to produce promised evidence; (c) telling the jury during the punishment phase the penalty assessed would not be binding on the trial judge.

From the substantial evidence supportive of the verdict the jury could reasonably have found the following: On July 3, 1983, at approximately 9:45 p.m., Mr. Thomas Jackson, a 62-year-old veteran correctional officer described by one inmate at trial as "one of the better officers" in his treatment of prisoners, entered B wing of Housing Unit 2 in an attempt to bring out an unruly inmate named Jimmy Jenkins.

Jenkins and appellant were among 459 prisoners assigned to Unit 2, an X-shaped building consisting of four cell wings (designated "A" through "D") branching from a central rotunda, where security was supervised from a circular desk called the control center. The rotunda was secured from the wings by reinforced glass partitions which allowed officers at the control center to observe the inmates. The only entrance to and from each cell wing was through a reinforced glass door.

On the fateful evening, Jackson was one of three "wing men" assigned to guard the cell wings of Housing Unit 2. Twenty-seven correctional employees were on duty that night (4:00 p.m.-to-midnight shift) to police Moberly's 1,643 inmates and by regulation the wing men operated unarmed. At such times, the inmates were allowed certain freedom as each had the key to his individual cell and could move freely within the wings.

Trouble began when appellant with several other inmates gathered in B wing and were drinking a concoction of homemade alcohol. The guards became aware of the problem as the men became obstreperous and at about 9:45 p.m. decided to separate Jimmy Jenkins, whose conduct had become increasingly offensive, and bring him out of the wing. To accomplish this officer Jackson entered the wing but Jenkins refused to comply with Jackson's orders so he returned to the control center for assistance. While deciding an appropriate course of action, the guards observed a crowd of about thirty inmates including appellant assembling at the far end of the wing. About this time inmate Robert Driscoll assembled a homemade knife from parts he had collected and hidden in his cell. Thirteen such knives or "shanks" were retrieved from the wing after the ensuing melee.

At approximately 10:00 p.m. the control desk officer called the prison captain for reinforcements and at the same time Jackson reentered the wing accompanied by two other guards. The three unarmed officers succeeded in physically securing Jenkins and began walking him from the wing toward the "safety" of the control center. Jenkins was flanked by two officers, with Jackson following eight to ten feet behind. It was then that appellant, who weighed about 300 pounds, challenged his fellow inmates with the words, "are we going to let them take Jimmy out?" Appellant and another then shouted "let's rush them" and about twenty to thirty including appellant rushed the guards.

The two guards with Jenkins made it into the control center area where four or five other officers awaited. Tragically however, Jackson was caught in the crush of inmates several feet short of the door. While a number of inmates charged into the rotunda, at least ten of the group remained outside the door surrounding Jackson. It appeared momentarily that Jackson might escape but he was stopped short of the control center door by appellant who seized him by the arm and hair, twisting his head "completely around" and pinning him against the door casing. With Jackson held in this position by appellant, inmate Driscoll stabbed him three times in the chest, two of which penetrated the heart. As three fellow guards tried frantically to pull Jackson to safety through the door, appellant released Jackson momentarily to strike one of the rescuing guards while several of those attempting the rescue were knifed and struck by other inmates. During this time Jackson was visible through the glass partition, his body jerking from the stab wounds and his shirt covered with blood. After appellant had released Jackson and struck the would-be rescuer, he resumed his grip on the stabbed and bleeding Jackson and inmate Rodney Carr then stabbed Jackson in the abdomen. Jackson was also stabbed near his left eye, possibly by Driscoll. It is apparent from the record that appellant's hold on the victim prevented him from escaping or defending himself, though other inmates at various times had their hands on the guard.

Jackson's body was finally pulled through the door by guards into the rotunda while the fight was still in progress. One guard testified that appellant "came out at us" into the control center after releasing Jackson and engaged in a fistfight. While the worst of the fight apparently lasted only a few minutes it took about one half hour to completely "corral" the inmates and herd them into the wing, and only after sixty to eighty shotgun blasts were fired into the floor and ceiling by newly arriving guards. Five guards and approximately thirty inmates required treatment for injuries.

At the time of the murder appellant was a 30-year-old white male with six prior felony convictions, including two of an assaultive nature (robberies) in 1979. Imprisoned in the Missouri State Penitentiary at Jefferson City in 1979 he was transferred to Moberly in March 1983. Appellant did not testify at the guilt phase of the trial but called nine witnesses, including eight inmates, to support his defense that he was not involved in the murder of officer Jackson. His only admitted role was engaging in a "fistfight" with guards in the control center towards the end of the melee.

The jury in assessing the death penalty found that appellant was "responsible for the murder of Tom Jackson while performing his duty as a correction officer," and that appellant was "in lawful custody of a place of confinement." Sections 565.012.2(8), (9) RSMo 1978 (repealed effective 10-1-84).

We first address appellant's principal points implicating basic concepts of accomplice liability found in §§ 562.036, 562.041, RSMo 1978. These code provisions impute to a defendant the criminal conduct of another, if the defendant himself has "the required culpable mental state," § 562.036 (emphasis added), further defined in § 562.041.1(2) as having occurred when:

Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense. [Emphasis added.]

In an extensive discussion of this provision, the Court in State v. White, 622 S.W.2d 939 (Mo. banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982), found the "purpose to promote" language an accurate description of the required mental state of an accomplice, and specifically approved a capital murder instruction employing such language. The Court refused to declare as a matter of law that an accomplice must be found to have both the intent to purposely promote the commission of the murder and the intent for the underlying felony.

If the Legislature had intended to require an aider to have a dual intent, it would have said so in the statutes. To the contrary, the only [intent] requirement expressed in the three sections is found in § 562.041.1(2) [described above].

...

Therefore to be found guilty of a particular offense, an aider must aid another or others with the conscious object of causing that offense. A finding that the aider had this intent is equivalent to finding that the aider and active participant shared a common intent or purpose.

Id. at 944-945; see also State v. Betts, 646 S.W.2d 94, 96-97 (Mo. banc 1983); State v. Robinson, 641 S.W.2d 423, 425-426 (Mo. banc 1982).

Although the court in White found no reversible error in the challenged description of the necessary mental state for an accomplice to capital murder, 2 the Court recognized the requisite intent for capital murder as that of "coolly and fully deliberating on the matter." 3 Id. at 944.

A subsequent revision in the verdict directing instruction for accomplice liability in capital murder cases strongly suggests incorporating both the "purpose of promoting" and "reflected ... coolly and fully" language, while citing White for the proposition that "[t]he failure to make this or a similar modification is not necessarily reversible error." MAI-CR2d 2.12 Note on Use 7 (effective January 1, 1983); State v. Johns, 679 S.W.2d 253, 259 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985).

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