State v. Byrd

• Decision Date: 11 September 1984
• Docket Number: No. 64656,64656
• Citation: 676 S.W.2d 494
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Maurice Oscar BYRD, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 494

676 S.W.2d 494

STATE of Missouri, Plaintiff-Respondent, v. Maurice Oscar BYRD, Defendant-Appellant.

No. 64656.

Supreme Court of Missouri En Banc.

Sept. 11, 1984.

Rehearing Denied Oct. 9, 1984.

John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for defendant-appellant.

Robert J. Maurer, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for plaintiff-respondent.

GUNN, Judge.

Defendant was convicted of four counts of capital murder and sentenced to death on each count. As aggravating circumstances supporting the death sentences, the jury found that each murder was committed while defendant was engaged in the other capital murders, and that each murder was committed for the purpose of receiving money or some other thing of value. ¹ Jurisdiction of defendant's appeal is in this Court pursuant to Mo. Const. art. V, § 3.

On appeal, defendant raises the following points: 1) that the death-qualification of jurors resulted in a jury which did not represent a fair cross-section of the community and was biased in favor of conviction; 2) that the trial court's refusal to permit individual voir dire resulted in the exposure of jury members to prejudicial information regarding pre-trial publicity; 3) that the state was improperly permitted to impeach its own witness with prior inconsistent statements; 4) that the state was improperly permitted to recall its witness to the stand to recant her earlier testimony, after causing her to be arrested for perjury; 5) that defendant's wife was compelled to testify against her husband; 6) that the state was improperly permitted to use hypnotically-enhanced testimony; 7) that the state would have been permitted to introduce evidence of defendant's bad character to counter his proposed evidence of good character; and 8) that the death penalty is cruel and unusual punishment and is disproportionately applied to black defendants convicted of killing white victims.

We conclude that defendant's points are without merit and affirm the convictions and the sentences imposed.

Defendant does not challenge the sufficiency of the evidence; however, a preliminary review of the state's case will aid in the discussion of defendant's arguments.

At approximately 7:40 a.m. on the morning of October 23, 1980, employees arrived at the Pope's Cafeteria in the West (St. Louis) County Shopping Mall to discover that death had held a high carnival. Three employees had been shot to death in the cafeteria office. A fourth employee was still alive, although mortally wounded. She had been shot in each eye and died a little more than a week later. Over four thousand dollars in malgained lucre had been taken from the office safe.

At the time of the murders, defendant worked for an exterminating service. The cafeteria, which he had serviced two days before, was one of his customers. On the morning of the killings, the bookkeeper for his employer arrived at work at approximately 7:50 a.m. Defendant was already there with another person, seated in a car that was different from the one normally driven by him. Defendant began his route that morning in the company car but called in at 10:00 a.m. to report that he was ill. He returned the company car to his employer and then left for the day. At the time he returned the car, he discussed the radio news reports of the killings with his supervisor. Defendant did not return to work again and made no attempt to pick up his final paycheck.

On October 27, 1980, defendant moved to Savannah, Georgia, to join his putative wife Sandra Sanders Byrd and their small child who had moved there the previous month. When he arrived, defendant had a briefcase containing a substantial quantity of money, a portion of which--$2,000--was immediately spent to purchase a car.

Devastating to defendant's theory of innocence was the testimony of Sandra Sanders Byrd that defendant had told her that he had killed some people in order to join her and the baby in Savannah. This testimony was bolstered by the former husband of Sandra's sister who testified that the defendant told him that he had committed a robbery in a victuallery in Missouri, killing a number of people in the process. A cellmate of defendant also testified that defendant had related to him that he had robbed a restaurant in St. Louis and in so doing had shot four people.

Sandra Sanders Byrd's testimony was not easily obtained. When called to the stand to testify for the state, she became recalcitrant and refused to acknowledge on recall that she had related to law enforcement authorities that defendant had told her of the killings. At this point she was withdrawn from the stand, charged with perjury and required to spend a night in jail on the charge. After a promise that the charge would be dismissed, she was recalled and testified in accordance with a prior statement made.

Defendant's first point concerns the death-qualification or "Witherspooning" of the jury, dubbed such from Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). His attack is essentially two-fold. First, defendant contends that striking venirepersons who indicated that they could not consider imposing the death penalty resulted in a jury which did not represent a fair cross-section of the community and which was prone to conviction. Second, defendant maintains that the death-qualification process should not have been conducted in the presence of other panel members. These same contentions were considered and rejected in State v. Guinan, 665 S.W.2d 325, 329 (Mo. banc 1984), and State v. Preston, 673 S.W.2d 1, (Mo. banc 1984). See also State v. Lashley, 667 S.W.2d 712, 714 (Mo. banc 1984). Nothing in defendant's argument alters our conclusion in this regard, and further discussion on this issue avails nothing.

Defendant's second argument also concerns the voir dire process. Defendant contends that the trial court erred in denying his request to voir dire the individual venirepersons outside the hearing of the other panel members with regard to pre-trial publicity. The sole reason pertaining to pre-trial publicity which was urged in support of defendant's motion was the existence of emotionally charged and prejudicial publicity surrounding the circumstances of the present case. Defendant now complains that he was prejudiced by the remarks of a venireperson relative to an unrelated crime for which defendant was arrested in Georgia. We cannot conclude either that the trial court abused its discretion in ruling on defendant's motion or that defendant was prejudiced as a result of voir dire.

The trial court ruled, in response to defendant's motion, that voir dire would be conducted in panels of twelve. The trial court also stated that if any venireperson indicated familiarity with pre-trial publicity, further questioning would be permitted at the bench, outside the hearing of the other panel members. The procedures employed in the conduct of voir dire are discretionary with the trial court. Guinan, 665 S.W.2d at 329. Clearly the procedures employed here provided adequate safeguards against the potential for prejudice warned of by defendant. There was therefore no abuse of the trial court's discretion in that regard.

As voir dire progressed, however, defendant's trial counsel did not in the following instance take advantage of the procedure authorized by the trial court. While questioning one venireperson who had already indicated some familiarity with pre-trial publicity, counsel inquired whether he remembered anything other than what the other panel members had already related. He responded, "Only that, I believe, I recall reading where he was arrested somewhere in Savannah, Georgia, on a murder charge." Defendant's subsequent motions to disqualify the panel and to declare a mistrial were denied.

Defendant claims that panel members were improperly exposed to evidence of other crimes by the venireperson's statement. However, it is clear that whatever prejudice inured from this statement resulted from counsel's failure to conduct voir dire examination on this topic at the bench. As with invited error, see State v. Ray, 647 S.W.2d 522, 524 (Mo. banc 1983), a party may not complain of prejudice which his own conduct creates.

Furthermore, the possibility that actual prejudice resulted from the statement is remote. The jury would later learn that defendant moved to Savannah shortly after the killings. They could reasonably assume that attention first focused on defendant's involvement in the St. Louis killings while he was in Georgia. The obvious conclusion, then, is that he was arrested for these killings while he was still in Georgia. Nothing in the venireperson's comment suggested any other sequence of events, particularly that defendant was arrested in connection with an unrelated killing.

Defendant's next three points relate to the testimony of Sandra Sanders Byrd. First, defendant maintains that Ms. Byrd was not competent to testify against him because she was his wife. In support of his contention, defendant looks to § 546.260, RSMo 1978 which provides that the spouse of a criminal defendant may not be required to testify in the defendant's trial. See State v. Manning, 657 S.W.2d 301, 302 (Mo.App.1983), holding that error occurred in allowing a wife to testify against her husband. That section also states that a spouse testifying at the option of defendant shall not be permitted to disclose confidential communications made between them in the relation of husband and wife. § 546.260, RSMo 1978.

The prosecution stipulated to the fact that defendant and Ms. Byrd were married in Georgia in September of 1978. However, it also introduced a marriage license issued in 1976 to defendant and Evelyn McQueen.

Defendant testified that he had indeed married Evelyn McQueen, that he had never divorced her prior to the marriage ceremony with Ms. Byrd and that the so-called second...