State v. Leisure

• Decision Date: 18 April 1989
• Docket Number: No. WD,WD
• Citation: 772 S.W.2d 674
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Paul LEISURE, also known as Paul Leisure, Defendant-Appellant. 40357.
• Court: Missouri Court of Appeals

Page 674

772 S.W.2d 674

STATE of Missouri, Plaintiff-Respondent, v. John Paul LEISURE, also known as Paul Leisure, Defendant-Appellant.

No. WD 40357.

Missouri Court of Appeals Western District.

April 18, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 30, 1989.

Application to Transfer Denied Aug. 1, 1989.

Alvin M. Binder (argued), Jackson, Miss., Richard Sindel, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen. (argued), Jefferson City, for plaintiff-respondent.

Before NUGENT, P.J., and SHANGLER and CLARK, JJ., concur.

NUGENT, Presiding Judge.

Defendant John Paul Leisure (hereinafter Paul Leisure) appeals from his conviction of capital murder for his part in the bombing death of James A. Michaels, Sr. The jury returned a sentence of life imprisonment without possibility of parole for fifty years. The defendant charges the trial court with error in refusing to give his proffered jury instructions, in refusing to excuse a juror for cause, in admitting hearsay testimony, in admitting evidence obtained by a federal wiretap, and in failing to order a mistrial following the prosecutor's improper closing arguments. We affirm.

The defendant does not challenge the sufficiency of the evidence to sustain his conviction. Therefore, we only summarize the relevant facts. ¹ The state charged Paul Leisure with capital murder as an accessory to the bombing death of James Michaels in St. Louis. The evidence showed that Mr. Michaels led a St. Louis organized crime syndicate composed of persons of Lebanese and Syrian descent and known as the "Syrians." An apparent conflict existed between the "Syrians" and certain Italian-American participants in organized crime. The Leisures were associated with the Syrian faction.

John Ramo and Joe Broderick, two of the participants in Mr. Michaels' murder, testified on the state's behalf. They described Paul Leisure as the leader of a group of men including Ramo and Broderick, David Leisure (Paul's cousin), Anthony Leisure (Paul's brother), Fred Prater, and Charles Loewe. The witnesses described the ultimate goal of the bombing was to gain control of Local 110 of the Laborers Union in St. Louis and to control the Syrian crime faction.

Paul Leisure later participated in the management of Local 42 but did not belong to Local 110. He also owned a towing business, LN & P Tire Service, along with Anthony and David Leisure and Fred Prater. Anthony Leisure held the position of assistant business manager in Local 110 and had originally been slated to succeed Ray Massud as business manager, but shortly before his death from illness, Massud arranged for his son John Massud to succeed him.

According to that arrangement John Massud would control the business affairs of the union and Anthony Leisure, in the newly created position of assistant business manager, would control personnel decisions. At Paul's suggestion Joe Broderick, known for his ability as a street fighter, joined Local 110. He served as an organizer and later as a business agent.

Following Broderick's appointment, however, Anthony saw his influence decline. John Massud soon appointed two other union officials, Vince Giordano and Mike Trupiano, Jr. Then he hired James Michaels, III, the victim's grandson, as an organizer. The Leisures perceived Massud's moves as a violation of the arrangement giving Anthony control over personnel decisions. They also feared that Giordano and Trupiano, relatives of a powerful member of the Italian crime faction, would increase Italian influence over the union. Their unhappiness with the events at Local 110 increased when they learned that the union's financial problems threatened Joe Broderick's job there. Because Broderick was Anthony's only appointee, that development represented a further threat to his influence at the union.

The group decided to respond to those developments. The Leisures, Broderick, Ramo, and Prater discussed possible victims of retaliation. Massud's close ties with the Italians and the fear of a "war" with the Italians removed Massud as a target. Similar considerations removed Giordano and Trupiano from the list. The group finally decided that by murdering Michaels they would not only enhance their power in the union, but they would also secure leadership of the Syrian organized crime faction. Michaels' part in allowing the man who murdered Leisure's cousin to escape in 1964 provided further motivation for choosing him as a target.

The Leisures originally scheduled Michaels' execution at his favorite breakfast restaurant. Anthony Leisure, Ramo and Broderick planned to enter the restaurant through a side door. Then Leisure and Ramo would shoot Michaels with shotguns while Broderick would prevent interference from the restaurant owner. Paul stayed at the LN & P office to relay information from surveillance of Michaels. The shooting plan ultimately failed because someone locked the side door to the restaurant and prevented a safe avenue for their surprise attack.

Following that failure, the group sought an alternative plan. The testimony indicated that Paul Leisure opposed bombing Michaels because he feared the type of retaliation it would provoke. The majority decided, however, to proceed with the bombing. Their preparation included obtaining the parts for the bomb, assembling it, stealing a car similar to Michaels' to practice attaching the bomb, testing the remote control detonator and conducting surveillance of Michaels to determine where the bombing should take place. They decided to attach the bomb to Michaels' car while he ate lunch at St. Raymond's Catholic Church.

Fred Prater and John Ramo assembled the bomb. On the day of the bombing Paul remained at LN & P's offices, again coordinating communications. Anthony and David Leisure, Ramo, and Broderick rode in the van used to transport the bomb to the church parking lot. David Leisure attached the bomb to Michaels' car, Ramo drove the van, and Anthony operated the detonator. Because Mr. Michaels' grandson accompanied him to his car, the group had the opportunity to kill them both at once. Anthony Leisure rejected that possibility because Paul Leisure had directed him not to allow the bombing to occur on the church parking lot. A short time later, Anthony succeeded in detonating the bomb as the group followed Michaels down Interstate 55. The blast blew Michaels' upper torso out of the car, killing him instantly. The body struck another car, but Ramo swerved the van and avoided being hit by the debris. He left the highway and drove to Illinois where the group cleaned the van. Over the defendant's objection, the state presented photographs of Mr. Michaels' bloody remains on the highway.

Following the bombing, the group, at Paul's suggestion, attended Mr. Michaels' funeral as a "show of force." Michaels' grandson and brother eventually lost their positions in the union. In meetings with leaders of the Italians, Paul secured an agreement that he would control Syrian affairs, but he would stay out of Italian matters.

About a year later, Paul Leisure suffered severe injuries when a bomb exploded in his car. He presented photographs of those injuries to the jury. Later, federal authorities conducted a court-ordered electronic surveillance of the defendant's residence and LN & P's offices. At trial, the state, over the defendant's objections, presented tapes and transcripts of intercepted conversations. In the tapes, Paul discussed his motives for bombing Michaels and his belief that his own bomb injuries came in retaliation for Michaels' murder.

The state obtained indictments in St. Louis County against Paul, Anthony, and David Leisure, and Charles Loewe for the Michaels' murder and for other crimes not at issue here. In return for their testimony in this and other trials, Ramo and Broderick received sentences for the reduced charge of second degree murder. The instant trial occurred in Buchanan County after the defendant's successful efforts for a change of venue and severance of the other charges and the other defendants.

During voir dire of the venire the following exchange took place between defense counsel Binder and venireman Reichman:

MR. BINDER: ... I want to tell you, there was a jury survey made years ago--not too long ago, where people were asked across the country, do they feel that a defendant should put on a little evidence, if he's accused of a crime. Fifty percent of the people thought he should. And that leads up to this question.

Do any of you feel that my client, because he's charged with this type of crime, should put on a little evidence to show that he's not guilty before we start, you know? Anybody that would feel like that?

UNIDENTIFIED: Such as? I don't know whether I'm following you.

MR. BINDER: That he has an obligation to come forth and put on some evidence to show that he's not guilty since the state has charged him with a crime. Do you feel like he ought to put on some evidence to convince you?

MR. REICHMAN: Testify?

MR. BINDER: Whatever?

MR. REICHMAN: Sure.

MR. BINDER: You think he should?

MR. REICHMAN: Well, sure.

Neither defense counsel nor the state questioned Mr. Reichman any further on that statement. He later stated that his father is a highway patrolman but that his father's involvement in law enforcement would not affect his judgment. The defendant originally advanced Mr. Reichman's law enforcement ties as grounds for his removal from the jury for cause. When the court noted Mr. Reichman's previous remarks about the defendant's failure to testify, defense counsel added that ground to his motion. The court denied the motion stating:

THE COURT: All right. Well, I--In my opinion, those responses were made and, particularly in regard to Mr. Reichman, somewhat out of context, was not understanding the instructions of the court, if the defendant chooses not to testify in the case.

I feel that his overall...