State v. Bibb, 66026

CourtUnited States State Supreme Court of Missouri
Citation702 S.W.2d 462
Docket NumberNo. 66026,66026
PartiesSTATE of Missouri, Respondent, v. Ray Lloyd BIBB, Jr., Appellant.
Decision Date17 December 1985

Gary L. Robbins, Public Defender, Lance R. Drury, Asst. Public Defender, Jackson, for appellant.

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


On January 20, 1984, appellant Ray Lloyd Bibb, Jr. entered pleas of guilty to charges of armed robbery, armed criminal action and capital murder arising from the killing of Kenneth Wood on November 24, 1983. This appeal is from imposition by the trial judge of a sentence of death on the capital murder charge and requires construction and application of § 565.006, RSMo (Supp.1982 and Cum.Supp.1983) (Repealed by Laws of 1983 and effective until October 1, 1984), as it read when the offense was committed:

1. At the conclusion of all trials upon an indictment or information for capital murder heard by a jury, and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In nonjury capital murder cases, the court shall likewise first consider a finding of guilty or not guilty without any consideration of punishment. In each jury capital murder case, the court shall not give instructions on any lesser included offense which could not be supported by the evidence presented in the case.

2. Where the jury or judge returns a verdict or finding of guilty as provided in subsection 1 of this section, the court shall resume the trial and conduct a presentence hearing before the jury or judge, at which time the only issue shall be the determination of the punishment to be imposed. In such hearing, subject to the laws of evidence, the jury or judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty, or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas. Only such evidence in aggravation as the prosecution has made known to the defendant prior to his trial shall be admissible. The jury or judge shall also hear argument by the defendant or his counsel and the prosecuting attorney regarding the punishment to be imposed. * * * In capital murder cases in which the death penalty may be imposed by a jury or judge sitting without a jury, the additional procedure provided in section 565.012 shall be followed. The jury, or the judge in cases tried by a judge, shall fix a sentence within the limits prescribed by law. The judge shall impose the sentence fixed by the jury or judge. If the jury cannot, within a reasonable time, agree to the punishment, the judge shall impose sentence within the limits of the law; except that, the judge shall in no instance impose the death penalty when, in cases tried by a jury, the jury cannot agree upon the punishment.

3. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.

The determinative issue on this appeal involves trial by the judge and not a jury of the punishment stage required by § 565.006, supra.

We make the following preliminary observations:

(1) In 1932, an accused entered a plea of guilty to a charge of murder in the first degree in the Circuit Court of St. Louis County. A judge of that court accepted the plea and assessed the death penalty. The accused sought to withdraw the plea and his request was refused. On appeal, this Court affirmed. State v. Kellar, 332 Mo. 62, 55 S.W.2d 969 (Mo.1932).

(2) In Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976), the United States Supreme Court noted: "This Court has pointed out that jury sentencing in a capital case can perform an important societal function, * * * but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogious cases."

(3) Section 565.006, supra, expressly requires a bifurcated proceeding--on the issue of guilt (guilt stage) and on the issue of punishment (punishment stage). This bifurcated hearing format was adopted in Missouri "to avoid the imposition of the death penalty in * * * [an] arbitrary and capricious manner * * *." State v. Royal, 610 S.W.2d 946, 950 (Mo. banc 1981).

(4) In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the jury found Bullington guilty (in the guilt stage) and fixed his punishment not at death but at imprisonment for life without eligibility for probation or parole for 50 years. Bullington then moved for a new trial. The trial court, relying on Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), ordered a new trial. Thereafter, the State indicated its intention to again seek the death penalty. The United States Supreme Court held that Bullington could not be sentenced to death after conviction at a new trial without violating the Double Jeopardy Clause. The teaching of Bullington is that in Missouri the guilt stage and the punishment stage are discrete; that each is subject to constitutional proscriptions.

(5) Section 565.006, supra, expressly permits the jury or judge to impose punishment.

On January 16 and 17, 1984, appellant appeared in open court and unexpectedly declared his guilt. On January 20, 1984, appellant was again brought before the court, was advised of his rights and was interrogated extensively by the judge. The judge noted the separation in § 565.006, supra, of the guilt stage from the punishment stage and accepted appellant's plea of guilty. He then addressed appellant's right to a trial by jury of the punishment stage.

Appellant first stated a preference that his punishment be determined by a jury:

Q Now, do you want a jury to determine the question of whether or not you're guilty?

A No, I'm guilty.

Q Do you want a jury to determine what punishment you should receive for these charges? (PAUSE)

A Yes, Your Honor.

Q You want a jury to determine your punishment, is that correct?

A Yeah.

Q Now, in the, in the first half of the trial the jury would have to, I mean, the State would have to convince 12 people that you were guilty. Do you understand that?

A Yes.

Q But if I accept your Plea of Guilty, that won't be done. Do you understand that?

A Yes.

Q In the second half, the State would have to convince 12 people that you should receive a certain punishment, and I understand that that's what you want to do, is that correct?

A Yes.

* * *

* * *

Q Now, let me say to you that what I'm hearing you say is you don't want any trial on the issue of your guilt or innocence?

A No.

Q Is that correct?

A That's right.

Q But the law requires that there be a second half, and you want, of course, to have the second half and you want that by a jury so far as you know, is that correct?

A Yes.

Appellant then indicated a desire that punishment be determined by the judge:

Q All right, Mr. Bibb. I'm going to give you one last opportunity to tell me whether or not you want to plead guilty to the three charges now pending against you. And let me advise you, sir, that once I accept your Plea of Guilty, I will not allow you to withdraw the Plea of Guilty. Do you understand that?

A Yes, I do.

Q Having that in mind, sir, do you persist in your Plea of Guilty?

A Yes. I do.

Q Do you want me to accept your Plea of Guilty to capital murder, armed robbery and armed criminal action?

A Yes. I do.

Q Very well. Mr. Bibbs. in [sic] the case of State of Missouri versus Roy Lloyd Bibb, Jr.--

A Oh, Your Honor?
Q Yes?

A I'd like to say something about you was saying something about the jury and all that?

Q Right.

A I'd like to have a Judge decide. I'd like to change that.

Q Now, that was after you talked to Mr. Robbins?

A Yes, yes.

Q Do you understand that you do have the right to a trial by jury on the second issue of punishment?

A Yes, but I'm, I'm going to let the Judge decide.

Q Do you understand that, that they only have to convince me, one person, rather than 12 people?

A Yes.

MR. ROBBINS: Judge, let me explain that I had--that's what he had told me before today, and we went back and said "You can have it either way you want; maybe we ought to think about it, or ..." He said he doesn't want to think, and I explained to him the alternatives. And I said "You make your decision; don't plead guilty and let's think about it" and he said he's pleading guilty and he says he wants the Judge. It's a very momentous decision to make.

Q (BY THE COURT: ) Do you understand how important that decision is?

A Yes, I do.

Q I may very well give you the death penalty. Do you understand that?

A Yes.

Q Recognizing that I may very well give you the death penalty after hearing the evidence, of course. Do you--

A Yes.

Q --still want just a Judge to hear that portion of the trial?

A Yes, I do.

MR. ROBBINS: Judge, that wouldn't be a final decision. We could change that at a later time. I don't think we'd waive any right on a Judge or jury today. I mean he's made a decision. Either way he goes I believe he could change that before the time came up.

THE COURT: Well, you're probably right on that issue.


* * *

* * *

THE COURT: We'll set the hearing on the matter of punishment for March 20th, 1984. Pursuant to Section 565.006, Paragraph 2, I will allow the defendant to reserve the right to request a jury, if he so desires.

There is no subsequent reference to trial by jury in the record on appeal. On April 12...

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