749 S.W.2d 356 (Mo. 1988), 69153, State v. Jones

Docket Nº69153.
Citation749 S.W.2d 356
Party NameSTATE of Missouri, Respondent, v. William R. JONES, Jr., Appellant.
Case DateApril 19, 1988
CourtSupreme Court of Missouri

Page 356

749 S.W.2d 356 (Mo. 1988)

STATE of Missouri, Respondent,

v.

William R. JONES, Jr., Appellant.

No. 69153.

Supreme Court of Missouri, En Banc.

April 19, 1988

Page 357

Rehearing Denied May 17, 1988.

Page 358

Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

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

BLACKMAR, Judge.

This is another in the agonizing series of capital punishment cases falling within our mandatory jurisdiction under Mo. Const. Art. V, Sec. 3. The defendant was charged with first degree murder (§ 565.020, RSMo 1986) in the killing of Stanley Albert and was sentenced to death following a jury verdict in the bifurcated trial required by law. He assigns thirteen points of error on appeal. Finding nothing requiring reversal, and concluding that the sentence is not inappropriate under the standards of § 565.035(3), we affirm the conviction and the sentence.

The defendant does not challenge the sufficiency of the evidence and so our recitation of the facts need not be lengthy. The evidence was essentially circumstantial, aided by numerous extrajudicial statements by the defendant. He was a bisexual person who was sometimes employed as a male stripper. He became acquainted with Stanley Albert, with whom he had a homosexual relationship, in late 1985. The defendant was 21 and Albert was in his fifties. In November of 1985 Albert purchased a white 1985 Camaro Z28. Beginning in December of 1985, the defendant told several people that his father was going to help him in acquiring a white Camaro. On Thursday, January 16, 1986 at 4:30 P.M. Albert pulled up in front of the defendant's apartment in his Camaro, apparently to keep a prior engagement. The defendant borrowed a blanket from his roommate and left with Albert in the car. He told his roommate that his new car had arrived. He said he was going to pick up some tires and didn't want to get the car dirty.

Page 359

That same evening the defendant offered his roommate a ride in the Camaro, which was accepted. During the ride he crushed a pair of sunglasses, remarking that the owner would not need them anymore. He confirmed a tentative arrangement with a female acquaintance to drive her to Indianapolis in his "new car" the following Sunday. He left the apartment early the next morning, purchased a shovel with his roommate's credit card, and returned in the afternoon. He had the license plates which had previously been on Albert's Camaro, explaining that he had to give them back to the man who sold him the car and that his father was getting him new plates. He complained to his roommate that he was tired, saying, "well, it gets pretty tiring when you drag a dead man through the woods."

On Sunday, January 19, the defendant picked up his female acquaintance in Topeka, Kansas and they set out on the projected trip to Indianapolis. He was accosted by the Missouri Highway Patrol for speeding and successfully outran the police in a high speed chase through Lafayette and Saline Counties, during which he compared his companion and himself to Bonnie and Clyde. He abandoned the car at a farmhouse near Malta Bend and was apprehended about three and a half hours later. The car bore Johnson County, Kansas, license plates stolen off another car.

Albert did not report to work on Friday, January 17, and was not seen again. His body was found in a wooded area near Independence on March 2, 1986. The medical examiner estimated that he had been dead between two weeks and several months. The body was wrapped in a blanket identical in appearance to the one the defendant had borrowed from his roommate. Albert had been shot five times in the neck and chest. Three of the bullets had been fired from the same weapon and the other two could have been. No murder weapon was ever found. Shells of the same very common type were found in the defendant's apartment, along with a presentation watch belonging to Albert and Albert's license plates.

Other circumstances need not be detailed. The jury could have found a chain of circumstances entirely consistent with the defendant's guilt and inconsistent with any other reasonable hypothesis.

I.--Voir Dire

The defendant argues that the prosecutor on voir dire sought to obtain an impermissible commitment from the prospective jurors that they would return a death verdict. The jurors were questioned individually in chambers for "death qualification." The prosecutor asked most jurors whether they could consider a death verdict, it appearing that the defendant was only 21 years of age and that the prosecution's evidence was purely circumstantial. The defendant's counsel asked for and was allowed a continuing objection to these lines of inquiry.

The defendant cites civil and criminal cases holding that it is not proper on voir dire to seek a commitment as to the verdict a juror might vote for under hypothetical circumstances. 1 The questions asked in this case do not fall under the proscription of the authorities cited. The inquiry is narrow and the questions are phrased in terms of "are you willing to consider?" Any further criticism of the form of particular questions should have been the subject of a specific objection. The prosecution is entitled to inquire, both in aid of challenges for cause and to obtain information for the intelligent exercise of peremptories, about the jurors' willingness to consider the specific circumstances objected to. See State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987). The court properly permitted the questioning.

The defendant also complains of the inquiry as to whether the jurors would require more than proof beyond reasonable doubt before considering a death sentence.

Page 360

No specific objection to any question along this line was presented. Specific objections are particularly important during voir dire because the general rule calls for allowing interrogating counsel broad latitude, and the actual prejudice from any particular question is difficult to assess. If objection is made the question may be reframed and any needed caution given. We perceive no error, plain or otherwise, in the interrogation. The questioning about reasonable doubt is an entirely proper inquiry as to whether the prospective juror is willing to follow the court's instructions. It is comparable to the question often asked by defense counsel as to whether a juror would be disposed to find a defendant who did not testify guilty. This does not amount to a prohibited attempt at commitment.

The defendant next protests about the sustaining of the state's challenges for cause to numerous jurors, citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). It is appropriate to note at the outset the usual rule that error may not be predicated on the sustaining of a challenge for cause if a full panel of qualified jurors is tendered for peremptory challenge. 2 Otherwise the trial judge would be placed in an impossible position, especially since our decisions encourage trial judges to excuse challenged jurors freely when arguable grounds are presented. 3 Witherspoon provides an exception to the general rule in its holding that there is error in excusing a juror in a capital case simply because of scruples against the death penalty. The decision does not stand in the way of excuse for other substantial grounds, in death cases or otherwise.

The defendant objects to the excusal of jurors Drake, Davis and Cordell. The record indicates that these jurors were not excused because of their expressed views on the death penalty. Drake was crying at one point and said that she was "about to fall apart." Juror Davis testified that "somebody here is playing with my mind," and the court felt that his testimony displayed such instability that he should not serve. Cordell did not express opposition to the death penalty "as long as there is positive proof," but "I'm not sure I could emotionally take the stress." The court excused her, expressing the thought that, because of her age (68) and professed emotional state it would be better to sustain the state's challenge. These three challenges represent appropriate exercise of judgment. The court may excuse jurors who give indication of lack of emotional stability, especially when a long trial with a sequestered jury is in prospect. The questioning does not indicate that these jurors were necessarily favorable to the defense. We are poorly equipped to question the trial court's exercise of judgment.

The defendant alleges error in the sustention of ten challenges for cause because of expressed views on the death penalty. It is argued that these excuses violated the Witherspoon test and that the court took an erroneous view of Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985), which expressed the proper test in terms of the trial court's conclusion that the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."

Witt in this sentence, with the use of a quotation borrowed from Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980), sought to "clarify" Witherspoon. It did not put an end to all problems about excusing jurors because of their views on capital punishment. In Witt a federal court of appeals had set aside a conviction because the trial court had excused a juror who answered questions about whether her scruples about capital punishment would interfere with her judging the guilt or innocence of the defendant by saying, "I am afraid it would" and,

Page 361

later, "I think it would." The defense made no...

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