State v. Bolder

Decision Date06 July 1982
Docket NumberNo. 62362,62362
PartiesSTATE of Missouri, Respondent, v. Martsay BOLDER, Appellant.
CourtMissouri Supreme Court

Lori J. Levine, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., Nancy Kelley Baker, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant was convicted of capital murder, § 565.001, RSMo 1978, 1 and the jury sentenced him to death pursuant to § 565.008(1). This Court has jurisdiction for original appeal. Mo.Const. art. V, § 3. Our review includes both consideration of alleged trial errors and review of the death sentence. § 565.014. We affirm both the conviction for capital murder and the sentence of death.

I

The offense occurred in the Missouri State Penitentiary. Appellant Bolder was serving a life sentence for first degree murder.

On March 14, 1979, at approximately 3:15 p. m., vocational teachers Kenneth Giboney and Arthur Luecke were returning by truck from Lincoln University. As they came around the building identified as 5 A & B and headed toward the maintenance and machine shop, Giboney observed what appeared to be two inmates fighting and told Luecke to stop the truck. Both men got out of the truck some thirty feet from the altercation. They saw an inmate, later identified as Theron King, lying against the wall in a partially sitting position. A second inmate, later identified as appellant, was standing over King and making striking or stabbing motions toward King's stomach. King appeared to be trying to move from side to side in an attempt to get out of the way. An unidentified third inmate approached to within two or three feet of the pair and then dropped back with his arms in the air. The inmate later identified as appellant straightened up, backed away from King, and then headed toward the entrance of the 5 A & B building. No others were known to be present at the scene. Neither Giboney nor Luecke saw a weapon at the time.

As appellant headed for the 5 A & B building entrance, King rose and started toward the maintenance and machine shop. Luecke saw blood on King's T-shirt and A weapon search was conducted in the immediate area of the stabbing. No weapon was found outside at the scene, but a clear plastic bag stained with blood of the same type as King's was found nearby. The plastic folder contained, among other things, inmate paper and appellant's personal correspondence. Prison officials found a knife with fresh blood on it in the 5 A & B building behind a set of padlocked metal doors fifteen to twenty feet down a hallway and to the left of the entrance appellant had been seen entering. A seven-eighths inch space separates the bottom of the doors from the floor. The knife was thin enough to have been slid beneath the doors. When investigation of the area was completed, appellant was taken to the office of Urban Lock, a penitentiary investigator, for questioning.

pursued appellant into the 5 A & B building not more than fifteen seconds behind him. Burt Johnson, another corrections officer who had arrived at the scene, also entered the building and ascended the stairs in pursuit of appellant. When Johnson reached the top of the steps he saw appellant standing behind a desk and wiping blood off his hands with a handkerchief. Appellant was wearing green trousers and a red jacket of the same type Luecke had seen on the man standing over King and making stabbing motions at him. Blood stains on appellant's clothes were of the same type as King's blood. Johnson frisked appellant, found no weapons on him, and took him back downstairs.

Officer Homer Jeffries, who had arrived at the scene, saw King walking toward the maintenance and machine shop. He followed King and reached him approximately seventy feet from where he had been stabbed and started to escort him to the prison hospital. After traveling about 100 feet, King said he could go no further. King was then carried to the penitentiary hospital on a stretcher. Dr. Richard Bowers examined King and immediately called in a surgeon, Dr. Alan Doerhoff. King was in shock when Dr. Bowers first saw him at the hospital. King had a one inch laceration on his right shoulder, a two inch laceration on his back, a one and one-half inch laceration on his right wrist, and a three inch long stab wound in his abdomen.

Dr. Doerhoff arrived at the hospital within forty-five minutes after the stabbing. King's inferior vena cava, which carries blood from the legs, intestines, kidneys, and liver to the heart, was lacerated in the stabbing. Dr. Doerhoff had to massage King's heart with his hand in order to start it pumping again. Because of the seriousness of the wound, Dr. Doerhoff held the inferior vena cava shut with his hand while King was moved into the operating room. King was in surgery for about an hour and fifteen minutes, during which he was given thirteen pints of blood and twenty-four pints of other fluids.

Dr. Doerhoff testified that such a serious injury to the inferior vena cava is fatal ninety percent of the time. The emergency was so great that Dr. Doerhoff did not believe he had time to establish a sterile condition and still save King's life. He performed the operation on King without wearing a mask or cap, although he did wear sterile surgical gloves.

King was then transferred to the University Medical Center. On March 26, 1979, he had surgery to remedy pericarditis, an inflammation of the sac surrounding the heart. King underwent surgery again on April 3, 1979, because he had suffered a heart attack. Various other procedures were conducted in order to determine the cause of an apparent infection in King's abdomen. On April 14, 1979, King had a fourth operation because infection prevented the scar tissue from holding one of his knife wounds closed.

King died April 28, 1979. Dr. Lowery Arnold, who performed the autopsy on King's body, testified that in his medical opinion King died from a generalized infection caused by a stab wound to the abdomen.

Investigator Lock, returning to his office from other duties, found appellant and the guard who had brought him there for questioning. Investigator Lock saw red stains Appellant's oral statement was offered only in the sentencing phase of the trial.

on appellant's clothing that appeared to be blood and saw a cut on appellant's right index finger and smeared blood on his right hand. Lock asked appellant if he wanted to talk about the incident, and appellant replied that he wanted to talk to Lt. Leroy Looten. Lt. Looten was called and came within minutes. Lt. Looten went into the office, and, at appellant's request, Investigator Lock left the room and closed the door. Lt. Looten spoke with appellant less than a minute, probably not more than thirty to forty-five seconds, and told him only to tell the truth because it would actually be better to do so. Appellant said he was ready to make a statement, and thereupon Investigator Lock was called back into the room. Appellant was read his rights, said he understood them, and signed a waiver. There was no evidence of any promises, threats, or other coercion. Nor was there any allegation that appellant did not understand the waiver he signed. Appellant made no statement before he was read his rights. He refused to make a written statement, but in Lt. Looten's presence he made an oral statement to Investigator Lock.

Investigator Lock testified that appellant said the incident went back four to six months to when King was his cell mate. Appellant said that King knew who murdered appellant's brother but would not tell him. Frank Lindsey became appellant's cell mate after King moved out. Thereafter, King began harrassing appellant and telling others that appellant and Lindsey were engaging in homosexual activities. Appellant said he got tired of such accusations. Appellant said that on March 14 he was walking to the 5 A & B building when he saw King and another inmate sitting on the ledge. They called appellant names as he walked by, and an argument followed. Appellant said he did not like being called names. He left and returned to the yard with the plastic bag containing papers and correspondence. He got the knife, put it in the plastic bag, and returned to where King was. Appellant asked King what he had said earlier, and King called him "a pussy-assed-nigger." Appellant then pulled out the knife and stabbed King. 2

II

Appellant argues that the trial court erred in overruling his motion for judgment of acquittal at the close of the state's evidence and in submitting the capital murder verdict directing instruction, MAI-CR2d 15.02, because there was no credible evidence upon which the jury could have found him guilty of (1) stabbing and cutting King, (2) intending to kill King, (3) knowing that he was practically certain to cause King's death, and (4) reflecting fully and cooly upon killing King before doing so. In assessing the sufficiency of the evidence, we must accept as true all evidence and inferences that tend to support the verdict and disregard all evidence and inferences to the contrary. Our inquiry is limited to whether the evidence, viewed in the light most favorable to the state, is sufficient to support the verdict. State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981); State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980).

The testimony of a single witness is sufficient to establish the identity of a criminal defendant if the jury believes it beyond a reasonable doubt. State v. Tucker, 451 S.W.2d 91, 95 (Mo.1970); State v. Stockdale, 415 S.W.2d 769, 771 (Mo.1967); State v. Williams, 376 S.W.2d 133, 136 (Mo.1964). In this case not one witness, but two, observed appellant standing over King and making striking or stabbing motions toward King's stomach. Appellant was found wiping blood off his hands with a handkerchief; his clothes when he was

found were of the same type that King's assailant was wearing; and the stains on...

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