State v. Schlup
| Citation | 724 S.W.2d 236 |
| Decision Date | 17 February 1987 |
| Docket Number | No. 68029,68029 |
| Parties | STATE of Missouri, Respondent, v. Lloyd SCHLUP, Appellant. |
| Court | United States State Supreme Court of Missouri |
Thomas R. Schlesinger, Chesterfield, for appellant.
William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Lloyd E. Schlup, was convicted of capital murder, 1 § 565.001, RSMO 19782, 3 on December 11, 1985. After finding aggravating circumstances, as required by § 565.012, 4 the jury imposed a sentence of death. Appellant appeals from the conviction and sentence.
This court has exclusive appellate jurisdiction in all cases in which the penalty of death is imposed. Mo. Const. art. V, § 3. We affirm both the judgment and the sentence.
In February 1984, appellant was an inmate at the Missouri State Penitentiary in Jefferson City and was assigned to Building 5-A of the Special Management Unit (SMU), the super-maximum security housing facility within the penitentiary. Building 5-A is divided into eight "walks" or rows of cells on four levels. Each walk is self-contained and is accessible only through a single secured gate. Building 5-A inmates are generally locked in their cells at all times except mealtimes. Appellant and codefendants Robert O'Neal 5 and Rodnie Stewart 6 lived on 2 walk, while the murder victim, Arthur Dade, lived on the same level, on 1 walk.
At approximately noon on February 23, 1984, the inmates on walks 1 through 4 were released for lunch. While the other inmates were walking towards the dining hall in Building 5-C, Sergeant Flowers and Corrections Officer Maylee observed appellant and his codefendants running towards 1 walk, away from the dining hall in Building 5-C and against the flow of inmate traffic. Appellant and codefendant O'Neal proceeded past the 1 walk security gate, while codefendant Stewart waited just outside the gate with a pint-sized ice cream receptacle containing what appeared to be a steaming liquid. Dade was walking, unarmed, towards the dining hall and was near the 1 walk gate when Stewart threw the contents of the ice cream container into Dade's face, causing Dade to raise his hands to his face. Appellant then jumped on Dade from behind, grabbing and restraining Dade's arms. O'Neal drew a twelve-inch, homemade weapon resembling an ice pick, ran forward, and stabbed Dade four times, penetrating his heart and lungs. Dade ran the short distance to the entrance of 1 walk, collapsed and died. Dade had made no hostile moves towards either appellant or his codefendants.
A corrections officer arrived and restrained Stewart. O'Neal ran down 1 walk, away from the dining hall, broke a window with his hand, and threw out the weapon which he had used to stab Dade, lacerating the back of his right hand. O'Neal then washed his hands and arms of blood at a nearby sink, walked quickly to the dining hall bathroom and discarded bloodstained clothing.
Shortly after O'Neal left for the dining hall, appellant yelled out a window near where O'Neal had discarded the murder weapon and then proceeded past the murder scene to the dining hall. Both appellant and O'Neal were apprehended in the dining hall.
At trial, appellant called three witnesses in an attempt to establish an alibi defense. The jury found appellant guilty of capital murder. The jury found two aggravating circumstances, that the murder was committed by a person in a place of lawful confinement and that appellant had a substantial history of serious assaultive criminal convictions. The jury imposed a sentence of death. We examine the issues raised by appellant.
Appellant's chief allegation of error and the one argued to the Court was that the prosecution went too far in the penalty phase of the trial by putting in evidence the details of prior crimes rather than limiting himself to evidence of only the conviction of the prior crimes.
The aggravating circumstance sought to be proved by the prosecutor with this evidence was the statutory aggravating circumstance of "a substantial history of serious assaultive convictions." § 565.012.2(1). The United States Supreme Court addressed a similar aggravating circumstance in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), where it stated:
We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at [a presentence] hearing and to approve open and far-ranging argument. So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice the defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.
Gregg 428 U.S. 153, 203-04, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976).
In our prior decisions, we too have declined to impose strict boundaries on the admission of evidence during the penalty phase. State v. Malone, 694 S.W.2d 723, 727 (Mo. banc 1985), cert. denied, 476 U.S. 1165, 106 S.Ct. 2292, 90 L.Ed.2d 733 (1986); State v. Bannister, 680 S.W.2d 141, 146 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985); State v. Gilmore, 661 S.W.2d 519, 524 (Mo. banc 1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984).
The evidence to which appellant's counsel most strenuously objects is the testimony of Harold Johnson, a former cellmate of appellant, who was the victim in the case involving appellant's second degree assault and sodomy convictions, alleged to be supportive of aggravating circumstance number two.
We cannot do other than concede to counsel that this witness had the base vocabulary required to most vividly and graphically describe a sexual assault involving participants of the same sex in prison surroundings. We would also remind counsel that we know of no way to describe sexual assaults involving male participants in prison surroundings which would not be both repugnant and repulsive to the ears of the ordinary listener or the eyes of the ordinary reader.
We believe that when the legislature used the words "substantial history of serious assaultive criminal convictions" (emphasis added), they contemplated there being presented to the jury something more than bare evidence of the conviction of the crime of "assault" or the bare conviction of some other crime which may include the element of assault. The jury is required to find a "substantial" history of "serious" assaultive criminal convictions. Assault can range from acts which constitute little more than conduct offensive to another to the most vile, sordid, repugnant and repulsive sexual assault upon the body of another. Sodomy can range from conduct between two consenting adults in the privacy of their own bedroom 7 to the vile, sordid, repulsive conduct described in this record, conduct so base and vile that we believe there could be no social benefit from copying it in detail into this public opinion.
It is easy to fall into the trap of reasoning that prior convictions generally are admissible only for limited purposes in determining guilt; that these convictions and crimes also are admissible only for some limited purpose in the sentencing phase; and, that the more detail and vividness utilized in referring to them, the more prejudice there may be to the appellant. Such reasoning would be applicable were we dealing with the guilt phase of the trial. But we are not here dealing with the guilt phase of the trial. These prior convictions and prior crimes are not offered and have nothing to do with the guilt phase of the trial. They relate only to the punishment phase, phase two of the trial.
In phase two, there were two choices--life imprisonment with no eligibility for parole for fifty years, or death. Section 565.008.1. Proof of a substantial history of serious assaultive criminal convictions supports imposition of the death penalty. The more "substantial" the history and the more "serious" the degree of the assaultive convictions, the better supported the death penalty. Prejudice to the defendant becomes quite a different thing in this instance, and must be tested by other than the usual and customary standards.
Prejudice in this instance results only if the State exceeds permissible limits in showing a substantial history of serious assaultive criminal convictions. Clearly some details and description of the crimes must be shown for the jury to find that the convictions were for serious assaultive crimes. The ultimate question is where shall the line be drawn to balance the protection of the defendant's rights against the public interest in punishing criminals and deterring crime. It is our view that the degree of latitude permitted the State should be in direct proportion to the degree of relevance and the degree of probative value of the evidence in question. In this instance, the killing which is here charged placed squarely in issue defendant's respect for the life and rights of fellow prisoners. As vile, ugly, repugnant and repulsive as the witness Johnson's testimony may have been, nothing could have more vividly and accurately described appellant's lack of respect for the life and rights of other prisoners. There is neither insinuation nor allegation that the testimony in question is false or untrue. While appellant said that he had no memory of the acts, he did admit that he had done some awful things to Johnson. No evidence could have been more relevant. No evidence could have been more probative of a substantial history of serious assaultive criminal convictions.
We do not believe that the trial court abused its discretion in permitting witness Johnson to testify, as he did, regarding details of the prior crimes committed against him by appellant.
Based upon our examination of prior cases involving inmate killings 8 we have no doubt that this jury would have assessed the sentence of...
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