State v. Ervin, 79968

Decision Date03 November 1998
Docket NumberNo. 79968,79968
Citation979 S.W.2d 149
PartiesSTATE of Missouri, Respondent, v. Rufus James ERVIN, Appellant.
CourtMissouri Supreme Court

Janet M. Thompson, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cassandra K. Dolgin, Asst. Atty. Gen., Jefferson City, for respondent.

COVINGTON, Judge.

Appellant, Rufus James Ervin, was convicted of the Class A felony of murder in the first degree, in violation of section 565.020, RSMo 1994, for which he was sentenced to death. Appellant appeals his first degree murder conviction and his sentence. Affirmed.

The evidence is viewed in the light most favorable to the verdict. State v. Kreutzer, 928 S.W.2d 854, 859 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997). On August 31, 1994, appellant telephoned Lucius House, a resident of St. Louis. Appellant told House that he had received a telephone call asking him to come to work in Arnold, Missouri, and to bring additional help. House agreed to go. Appellant drove to House's residence to transport House to the job. Keith McCallister and Henry Cook accompanied appellant and House. The men stopped to purchase alcohol on their way to the Semco Factory, where they arrived at about midnight. At 1:00 a.m. on September 1, 1994, the four men left the factory. Appellant drove to a liquor store where he purchased more alcohol for himself and the other men. He said that he was going to Leland White's property, where appellant had also lived for a period of time.

Upon arriving at White's property, appellant honked the horn. McCallister exited the automobile and opened the gate. After parking the car, appellant got out and walked over to Leland White, who was standing outside of his trailer. Appellant and White shook hands. They went inside the trailer. About fifteen minutes later, House heard appellant yelling, "This is mine. This is mine." White called for help. Something hit against the trailer wall, a lamp was knocked over, and the trailer caught fire.

Appellant dragged White out of the trailer after it caught fire, pulling him by something tied around White's neck. White was naked. Appellant dragged White across the driveway and propped him up against a tree. White then said to appellant, "Just go ahead and kill me, James. Just kill me, James." Appellant picked up a brick with which he hit White four or five times on the head. Appellant began to walk away from White but returned to him after White moved. Appellant then hit White three or four additional times in the head with the brick. Appellant returned to the car and said to the others, "The motherfucker said kill me, so I did."

The four men returned to the car. Appellant attempted to drive away, but backed the vehicle onto a boulder. After examining the car and trying to free it, appellant went to White, picked him up, and took him over to the car. Appellant threw White over the hood. Appellant then told McCallister to "come on, help me throw this motherfucker in the fire." McCallister helped appellant. They threw White about three feet into the fire. Appellant and McCallister returned to the car and again tried to free the vehicle from the boulder. About an hour later, they were able to remove the vehicle from the boulder.

The automobile was not operable. Appellant decided that he should call the highway patrol and report that the house blew up. The men pushed the car back up in the driveway. Appellant and McCallister tried to throw White further into the fire. Appellant and the others then wiped White's blood from the hood of the vehicle with newspaper.

Appellant flagged a motorist and obtained a ride to the home of Don Cook, who lived eight-tenths of a mile from White. Cook was acquainted with both White and appellant. Appellant told Cook that White was dead and appellant wanted to call the sheriff. Appellant said, "We've had an explosion ...." and told Cook that White had said, "James, don't let me burn. Don't let me burn."

Cook could not reach the sheriff so he called Deputy Umphleet, who lived nearby. Umphleet went to White's trailer, as did Cook and appellant. Umphleet observed a white male lying face down on a burned-out portion of the building. Nothing was left of the residence. Appellant told Umphleet that there had been an explosion and fire and that the explosion had blown the stove from one side of the residence to the other. Umphleet noticed, however, that the stove remained connected to a propane tank. Additional law enforcement personnel arrived at the scene. Deputy Sheriff John Farrar assisted Umphleet. Approximately ten to twelve feet south of White's body, Farrar collected a brick stained with what appeared to be blood.

Jefferey McSpadden, the Reynolds County coroner, arrived. He determined that the cause of death was an open skull fracture. After speaking with McSpadden, Umphleet arrested appellant, Cook, House, and McCallister.

Sergeant Kirby Johnson of the Missouri Highway Patrol interviewed appellant on September 1, 1994. He read appellant his rights at 4:13 p.m. Between 4:18 p.m. and 4:36 p.m., Johnson taped a conversation with appellant. Appellant denied cutting White's throat, denied hitting him with a brick, and denied throwing his body into the fire. Johnson asked appellant about the discrepancies between appellant's statements and the statements of the three other men, who remained in custody. Johnson then left the room after which two other officers interrogated appellant. Finally, after a break in the proceedings, appellant yelled that he had hit White in the head with a brick.

Leland White died as a result of blunt trauma to his head. He sustained at least five separate blows to the head. White suffered, in addition, nine incised wounds that cut across his neck. Most penetrated only through the skin and dermis. Two incisions exposed the muscles of the neck. One cut through White's trachea. There were superficial incisions over White's left shoulder and lower right side of his neck. There were seven or eight superficial incisions partially through the skin across the front of White's thigh. The jury found appellant guilty of murder in the first degree.

In the penalty phase of trial, the state presented evidence of appellant's prior convictions for assault upon a law enforcement officer and two weapons counts. The state also adduced testimony regarding appellant's arrest for driving while intoxicated. Appellant engaged in verbally abusive and physically violent conduct following the arrest. The state also adduced testimony from a former Phelps County jailer pertaining to appellant's assault upon him, which resulted in the jailer sustaining a broken right jaw joint and a bruised brain with swelling. Appellant presented evidence from two clinical psychologists.

At the close of the evidence, instructions, and arguments by counsel in the penalty phase, the jury was unable to reach a verdict on punishment. The trial court, as a consequence, sentenced appellant, as provided under section 565.030.4(4). The court imposed a sentence of death.

I.

In his first point on appeal, appellant alleges that the trial court violated his rights to due process, an impartial jury under the Sixth Amendment, and freedom from cruel and unusual punishment when the court struck venireperson Melick for cause. The trial court struck Ross Andrew Melick based on his responses to voir dire questions regarding his ability to consider the death penalty.

When the prosecutor asked Melick whether he could envision himself voting for the death penalty, Melick replied that the only case in which he would be able to vote for the death penalty would be one where genocide was involved:

MR. BROWN: You're reserving that for just the absolute rarest and most horrible cases, is that correct?

JUROR MELICK: Yes. And I would probably have to really struggle with that, too.

MR. BROWN: But in most cases you do have a moral belief against the death penalty, is that correct?

JUROR MELICK: Yes.

MR. BROWN: All right. Now because of your view on the death penalty, that would probably keep you from being fair and impartial if this case wasn't one of those horrible cases, wouldn't it?

JUROR MELICK: In respect to the sentence, yes. Not up to the decision of guilt or innocence on the other thing.

MR. BROWN: But on the issue of what punishment you'd be willing to vote for and return as a verdict, it would impair your ability to -

JUROR MELICK: It might not be in terms of the law, yes.

MR. BROWN: All right. And you might not be able to follow the judge's instructions at that point, is that correct?

JUROR MELICK: It might be very difficult.

MR. BROWN: So difficult it might impair your ability to do it.

JUROR MELICK: It could, yes.

MR. BROWN: Now you might be selected as the foreperson of the jury, if you were to serve. Would you be able - you might have trouble signing a death verdict, wouldn't you?

JUROR MELICK: I think I probably would.

Appellant's counsel later inquired of Melick:

MR. HADICAN: All right. Mr. Melick, I think you indicated that you would have some problems, did you not?

JUROR MELICK: Yes.

MR. HADICAN: But you did say that you would be able to listen to the evidence.

JUROR MELICK: I think so, yes.

MR. HADICAN: And did you say you would apply his honor's instructions to this case.

JUROR MELICK: Yes.

MR. HADICAN: All right. And if those instructions included a directive from the Court to the effect that you consider life or death, you would comply with that instruction, wouldn't you, and consider it?

JUROR MELICK: Yes.

MR. HADICAN: All right. And did I understand you to say that notwithstanding the fact that it would be difficult for you to do that, you would do it?

JUROR MELICK: I would do it. I don't know if I would be able to, in a case such as I envision this to be, if I would be able to do it in this case.

MR. HADICAN: But you don't know anything about ...

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