State v. Amrine

• Decision Date: 15 December 1987
• Docket Number: No. 68694,68694
• Citation: 741 S.W.2d 665
• Parties: STATE of Missouri, Respondent, v. Joseph AMRINE, Appellant.
• Court: Missouri Supreme Court

Page 665

741 S.W.2d 665

STATE of Missouri, Respondent, v. Joseph AMRINE, Appellant.

No. 68694.

Supreme Court of Missouri En Banc.

Dec. 15, 1987.

Rehearing Denied Jan. 20, 1988.

Kathleen Murphy Markie, Columbia, for appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant appeals his conviction of first degree murder for killing fellow inmate Gary Barber in the Missouri State Penitentiary. The death penalty was imposed, hence the cause falls within this Court's exclusive appellate jurisdiction. Mo. Const. art. V, sec. 3. We affirm.

While defendant does not challenge the sufficiency of the evidence to support his conviction, we briefly summarize those facts which the jury reasonably could have found from the evidence. Defendant and the victim, Gary Barber, were housed in the special management unit or "supermax" area of the penitentiary during October of 1985. In early October, defendant became aware of "rumors" being circulated by Barber concerning an alleged incident in which Barber committed a homosexual act upon defendant when they were cellmates in the "general population" area of the penitentiary. Inmate Randy Ferguson testified that on October 3 he overheard a conversation between defendant and Joe Moore during which Moore commented "if somebody had treated him like that or done something like that to him, he would kill him." Defendant replied, "Don't think that that ain't what I plan to do." Ferguson also related that on October 7 defendant informed him and three other inmates that he planned to stab Barber the next day and wanted them to "block." Inmate Terry Russell testified that defendant told him that he intended to "stick" Barber when the inmates went to the "yard"; however, that opportunity did not arise. Russell explained that on the morning of October 8 defendant confronted Barber about the rumors, and after some discussion defendant and Barber came to where Russell was standing. Defendant asked Russell to repeat the accusations in front of Barber and Russell stated that Barber "was going around telling people he had sex with [defendant]," to which Barber did not respond. Defendant said "okay" and walked away, but a fight broke out between Russell and Barber as a result of the allegations and they were placed in detention until October 18.

Ferguson testified that on the evening of October 17, 1985, the night before Barber and Russell were released from detention, he overheard a conversation between inmates Omar Hutchison, Daryl Saddler and Clifford Valentine concerning a knife and observed Saddler go up to the floor above them and pass a knife down to Hutchison. Following lunch on October 18, the inmates from defendant's unit were released to the multipurpose room for recreation. Two guards, Officers Thomas Smith and John Noble, were on duty supervising the 45 to 50 inmates in the room that day. The doors to the recreation area were locked and the inmates could enter and exit the room only through the front door, which was guarded by Officer Noble. When Ferguson arrived at the multipurpose room he began working out on a punching bag and saw Hutchison enter the room, approach the window, remove an ice-pick type weapon from his waistband, and tape the weapon to the outside of the building.

Ferguson later saw defendant go to the window and retrieve the knife, which he placed in the waistband of his pants. Defendant approached Barber, who was sitting alone in the corner of the room, knelt down, and started a conversation. The two men got up and began pacing around the room, during which time defendant placed his arm around Barber's shoulder. Defendant subsequently took his arm off Barber's shoulder, pulled the knife from his waistband and stabbed Barber in the back below the left shoulder blade. Defendant turned and ran while Barber removed the knife and chased defendant toward the front of the room. Barber then stated, "Joe, I'm going to get you," dropped the weapon and collapsed not far from Officer Noble. Shortly thereafter Barber died as a result of the stab wound. The stabbing was witnessed by Ferguson and inmate Jerry Poe, both of whom identified defendant as Barber's killer.

The defendant testified he was playing poker at a table in the multipurpose room at the time of the stabbing and did not see the chase or the fatal blow. He presented the testimony of several inmates who stated they saw Barber chasing Russell prior to collapsing. Officer Noble testified he did not witness the stabbing, although he saw Barber chasing another inmate whom he did not get "a real good look" at but identified as Russell. At trial, Noble stated he could not be sure of his identification and noted many similarities in the appearance of defendant and Russell. Defendant's theory that Russell murdered Barber was undermined by the testimony of Officers Dobson and Bowers, who corroborated Russell's statement that he had gone to the housing unit to get an aspirin and was not in the multipurpose room when the stabbing occurred. Additional facts will be related in connection with defendant's numerous assertions of error.

I

Defendant, in what we perceive to be his principal point on appeal, contends that "the trial court committed plain error in failing, sua sponte, to admonish the State against presenting evidence [during the penalty phase] as to the effect of a death sentence on the prison population and against arguing to the jury that [defendant] should be given the death penalty because of its deterrent effect on other inmates...."

We initially consider the propriety of the prosecutor's argument concerning deterrence. Relief should rarely be granted on assertions of plain error as to closing argument, "for where no objection was lodged, trial strategy is an important consideration and such assertions are generally denied without explication." State v. Newlon, 627 S.W.2d 606, 616 (Mo. banc 1982). Furthermore, "we have long recognized that arguments on the deterrence of crime and the necessity of law enforcement and the need for society to protect itself need not have support in evidence, and such pleas may call upon common experience." State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983). Thus, the prosecutor's argument provides no basis for reversal in this case.

Nor do we believe the admission during the punishment stage of evidence pertaining to the deterrent effect of the death penalty in the unique setting of a correctional institution violates the constitutional rights of a defendant in cases where the aggravating circumstance that the murder was committed by a person in the lawful custody of a place of lawful confinement, section 565.032.2(9), RSMo 1986, is submitted to the jury.

In examining the constitutionality of the statutory predecessor of section 565.032.2(9), we held:

The legislature, in adopting [section] 565.012(2)(9), [RSMo 1978,] reasonably could have concluded that the death penalty is appropriate when imprisonment already imposed does not deter capital murder. The imposition of capital punishment is rationally related to the state's obviously legitimate interests in preventing crime and protecting other persons, such as prison employees and other inmates, with whom prisoners come in contact.

State v. Bolder, 635 S.W.2d 673, 683 (Mo. banc 1982). We have further stated:

... the legislature legitimately could have aimed this aggravating circumstance at deterring all capital murders in any prison. The legislature may have had several reasons: deterring those otherwise undeterred; protecting prison guards who daily serve the state in a dangerous environment; and protecting other prison inmates who are relatively defenseless in the prison environment.

State v. Trimble, 638 S.W.2d 726, 737 (Mo. banc 1982).

It is evident from the statements quoted above that evidence concerning the deterrence of prison murders is relevant to the statutory aggravating circumstance that defendant committed the murder while in the lawful custody of a place of lawful confinement. It is important to remember that under the Missouri statutory scheme the jury must not only find whether the submitted aggravating circumstance existed, but must weigh it and consider whether it warrants the imposition of the death penalty. Section 565.030.4, RSMo 1986. Just as the State is not limited to a bare recitation of the defendant's prior convictions of serious assaultive crimes when that aggravating circumstance is submitted, see State v. Schlup, 724 S.W.2d 236, 238-40 (Mo. banc 1987), neither is it restricted to simply establishing that the murder was committed by a prison inmate when that aggravating circumstance is involved. It is difficult to properly assess how much weight should be accorded to the existence of this aggravating circumstance unless it is understood why the circumstance is considered aggravating and the reasons it was among those statutorily enumerated. Evidence pertaining to the problem of violence in the correctional facility where the murder occurred and the deterrent effect of the death penalty in that unique environment unfamiliar to jurors, therefore, is relevant in cases such as this.

We are unpersuaded by defendant's argument that State v. Gilmore, 681 S.W.2d 934 (Mo. banc 1984), militates against admission of evidence such as that presented here. In Gilmore, we found that the proposed testimony of sociologist James Gilsanin on the general deterrent value of the death penalty would have been irrelevant and that the court did not err in refusing to appropriate funds for the defendant to employ Dr. Gilsanin as an expert witness. In so doing we noted: "it is apparent from defendant's motion that Dr. Gilsanin's testimony would not have focused on the specifics of the defendant's case and, therefore, would not have assisted the jury in imposing a rational sentence." Id. at 941.

The evidence on deterrence in this...