State v. Debler

Citation856 S.W.2d 641
Decision Date20 April 1993
Docket NumberNo. 70922,70922
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Shelby Gene DEBLER, Defendant-Appellant. Shelby Gene DEBLER, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.
CourtUnited States State Supreme Court of Missouri

Janet M. Thompson, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Rudolph R. Rhodes IV, Asst. Atty. Gen., Jefferson City, for respondent.

BENTON, Judge.

Convicted by a jury of murder in the first degree, Shelby Gene Debler was sentenced to death. His timely post-conviction motion under Rule 29.15 was overruled. On appeal, Debler raises 16 points of error. These errors deal with four separate stages: 1) jury selection; 2) guilt phase; 3) penalty phase; and 4) post-conviction motion. This Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3. The conviction is affirmed; the sentence is reversed; the overruling of the Rule 29.15 motion is affirmed with respect to conviction and dismissed as moot with respect to sentence; the case is remanded for a new sentencing hearing.

I.

Due to an unpaid debt, Debler had feuded with Danny Fisk since November 1986, with each harassing the other and his family. Both sides, apparently, filed complaints with local police departments, and various other law enforcement officials, with little or no response other than occasional questioning.

On July 25, 1987, shortly before 9 p.m., Debler was driving with his brother, Brent, and a friend when he was stopped by the police and taken into custody on one of those complaints. Some evidence suggests that Debler was drunk at that time. Between the time of the arrest and posting bond, Debler repeatedly cursed the police officers. Debler also made threats against the police officers and Fisk.

After his release, Debler went to the friend's house and apparently resumed drinking. There, Debler learned that some type of box had been left in his driveway, so he called the police several times. The last time Debler talked to the police was about 12:20 a.m.--while still at his friend's house.

Leaving there, he drove to his own home with his brother, Brent. Debler and Brent proceeded to rig a trap gun to the main door--with a string tied to the gun, run along the ceiling, and attached to the doorknob. After the gun was set, "dry fired," and loaded with one bullet, both Deblers left the house through a window. Debler went to a neighbor's house and called the sheriff's office--at about 2:40 a.m.--claiming that his house was being or had been burglarized and that an officer was needed.

In response, the dispatcher contacted Sheriff C.A. LaRew, who went to the Deblers'. At about 3:10 a.m., LaRew radioed that he was at the Deblers' and leaving the car. After LaRew looked around the outside, LaRew and Debler went to the main door while Brent got the house key out of the car. LaRew stood to the right of the door as he opened it. 1 The gun went off and the bullet hit LaRew in the head, shattering part of his skull, and scattering pieces of his brain.

Debler called for assistance on LaRew's radio, stating that LaRew had just been killed. Police officers from several jurisdictions responded. When the officers arrived at the house, the Deblers claimed that Fisk was responsible. The officers proceeded to search the house and discovered the trap gun. The next day, after talking to their mother, both Deblers separately confessed to setting up the gun together.

II. Jury Selection

Debler raises two points concerning the trial court's ruling about questions by both sides during the death-qualification part of voir dire and the State's strike for cause of venireperson Barbara Ricketts. Debler also alleges the post-conviction court similarly erred.

The standard of review on these issues is "abuse of discretion" by the trial judge. State v. McMillin, 783 S.W.2d 82, 93-94 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). However, on these matters, that discretion is relatively narrow.

As a starting point, a challenge for cause requires the party seeking removal to state the specific reason why that venireperson is not qualified to serve and to convince the judge of the validity of that reason. State v. Reed, 137 Mo. 125, 38 S.W. 574, 575 (1897).

One basis for a challenge for cause is bias. One type of bias involves venirepersons who are witnesses, who have formed an opinion on the material facts of the case, or who are kin to the defendant, the victim or the prosecutor. § 494.470.1 RSMo Supp.1992. This type of bias is not in issue.

The other type of bias focuses on opinions about "larger issues." To some extent, all members of the pool have this form of bias. To exclude venirepersons solely because of their views on such issues violates the fair cross-section requirement. Cf. Witherspoon v. Illinois, 391 U.S. 510, 518-23, 88 S.Ct. 1770, 1774-1777, 20 L.Ed.2d 776 (1968). Therefore, these individuals are excluded only if their views would preclude following the instructions given by the court. § 494.470.2 RSMo Supp.1992. This test governs death-qualification. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); see also Ross v. Oklahoma, 487 U.S. 81, 83-85, 108 S.Ct. 2273, 2275-76, 101 L.Ed.2d 80 (1988); Gray v. Mississippi, 481 U.S. 648, 658-59, 107 S.Ct. 2045, 2051-52, 95 L.Ed.2d 622 (1987); Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); State v. Grubbs, 724 S.W.2d 494, 496-97 (Mo. banc), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707 (1987).

This test limits challenges for cause solely due to general feelings about the death penalty. To determine whether these feelings are sufficiently strong to preclude following the instructions, attorneys have "wide latitude" to allow "deep probing" with their questions. McMillin, 783 S.W.2d at 94; cf. Morgan v. Illinois, 504 U.S. 719, ---- - ----, 112 S.Ct. 2222, 2232-33, 119 L.Ed.2d 492 (1992). This wide latitude is not, however, complete and total freedom; the questions must still be relevant and proper. Cf. McMillin, 783 S.W.2d at 94.

Certain questions are normally permissible. Direct questions about the venireperson's feelings about the death penalty are normally proper. McMillin, 783 S.W.2d at 93. Likewise, general questions about following the instructions are normally allowed. State v. Dixon, 717 S.W.2d 847, 848 (Mo. banc 1986). Questions whether a venireperson will hold the State and the defendant to the requisite standard of proof are generally appropriate. See State v. Foulk, 725 S.W.2d 56, 71-72, 73-74 (Mo.App.1987); cf. State v. Herndon, 670 S.W.2d 32, 36-37 (Mo.App.1984) (allowing discussion of reasonable doubt standard as follow-up to question on ability to obey standard).

The difficult area--both with questions and with challenges for cause--involves the "weighing" instructions, requiring the jury to weigh the aggravating circumstances to see if they warrant death and to weigh aggravating circumstances against mitigating circumstances. See MAI-CR 3d 313.42; MAI-CR 3d 313.44; MAI-CR 3d 313.46. While it is generally inappropriate to seek commitments on the alleged facts of the case, the parties are entitled to a jury that will weigh these circumstances. See State v. Norton, 681 S.W.2d 497, 499 (Mo.App.1984). A juror who would consider one of the two penalties only under impossible circumstances is subject to disqualification. Morgan, --- U.S. at ---- - ----, 112 S.Ct. at 2234-35; State v. Antwine, 743 S.W.2d 51, 61 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). A juror who under some of the hypothetical facts of the case would vote one way or the other is not subject to disqualification for cause.

The actions of the prosecutor and the judge in this case reflect sensitivity for these concerns. Debler objects to two questions by the State, which were posed to multiple venirepersons. First, whether the venireperson could "in the proper case if you felt it was fair and just" vote for the death penalty? Despite Debler's specific allegation, this question is not an attempt to receive a "commitment" from these venirepersons. Second, whether the venirepersons felt the death penalty was a good and necessary law? Both questions legitimately attempt to determine the venirepersons' feelings toward the death penalty and the impact of those feelings on their ability to follow the instructions.

Debler also objects to two repeated comments by the prosecutor. First, the prosecutor occasionally referred to the penalty phase as a "short hearing"--usually in comparison to the guilt phase. In comparison to the guilt phase, the penalty phase is typically shorter. These comments were not an attempt to denigrate the seriousness of the penalty phase.

Second, the prosecutor stated that finding a statutory aggravating circumstance "justifies your consideration" of the death penalty. Despite Debler's contention, this accurately states the law. Once the jury finds one or more aggravating circumstance--including at least one statutory circumstance--it must consider whether these circumstances warrant the death penalty. § 565.030 RSMo 1986; MAI-CR 3d 313.42.

Debler's last complaint about voir dire concerns the trial court's sustaining the State's objections to a series of defense questions. First, whether the venireperson felt "that because of your belief that you should be denied your ability to do your duty as a citizen and sit on a jury in a case like this?" Second, "do your beliefs require you to remove yourself in deciding, as in a case like this, and participating and making a decision that can mean life or death?" Third, "do you understand that all the law requires is that you consider the imposition of the death penalty if you find guilt, it doesn't require you to vote for it, do you understand that?" Fourth, ...

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