State v. Garrett

• Decision Date: 09 February 1982
• Docket Number: No. 62482,62482
• Citation: 627 S.W.2d 635
• Parties: STATE of Missouri, Respondent, v. Gerald Duane GARRETT, Appellant.
• Court: Missouri Supreme Court

Page 635

627 S.W.2d 635

STATE of Missouri, Respondent, v. Gerald Duane GARRETT, Appellant.

No. 62482.

Supreme Court of Missouri, En Banc.

Feb. 9, 1982.

Rehearing Denied March 9, 1982.

Toby H. Hollander, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Appellant, being charged by indictment with capital murder in connection with the death of one Agnes Grote, was tried to a jury and convicted of first degree murder and sentenced to life imprisonment.

She was killed on the morning of April 3, 1977. At approximately ten o'clock on that date, a neighbor noticed smoke coming from Mrs. Grote's house. The fire department was called and the fire, which was not too extensive, was extinguished. Her body was discovered underneath a smoldering mattress. An autopsy revealed that death was caused by several violent blows to the head and at least three stab wounds in the neck. A wooden 2 X 2 inch board, which had been used to brace the house door, was identified as the probable weapon. It was found broken in two near the victim and a fragment from the board was removed from her throat during the autopsy. Although her body had been burned to some extent, the medical examiner determined that death had occurred some hours before the burning. An inspector concluded that the fire had been set deliberately because it had six origins.

The officers observed that a storm door had been removed from its hinges and was hanging from a hydraulic closer; that screwdriver "pry" marks were evident thereon; that glass had been broken from the storm door and a pane of glass, above a dead bolt lock, had been broken on the inner door; that a bootprint made by an "army-style" boot was in the yard near the entrance and a cast was made of it; and that glass fragments and the broken board had been collected.

Appellant lived four houses from Mrs. Grote and at the time of her murder was free on bond pending appeal of his conviction for the murder of one Estelle Stern, who had lived several blocks away. Thereafter, the latter conviction was vacated by the Court of Appeals and appellant was acquitted on retrial.

Two days after the death of Mrs. Grote, appellant was arrested without a warrant at his place of employment and glass fragments were removed from the soles of his boots. As the 20-hour "hold" rule approached, a hearing was held wherein the prosecutor's request for an increase of the existing appeal bond in the Stern case was sustained. On the next day, a search warrant issued and four screwdrivers were seized at appellant's home.

We consider appellant's points in the order presented.

First, it is argued that: "The indictment in this case failed to charge capital murder because it failed to allege an essential element of the offense, i.e., malice aforethought. This defect deprived the lower court of jurisdiction and rendered defendant's conviction a nullity." As a historical basis for the argument as made, appellant submits that: "Gradually, the common-law courts began to distinguish manslaughter from murder. 'Malice aforethought was designated as the element that distinguished the two crimes....' Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). See generally Perkins on Criminal Law 38 (1969); Lafave & Scott, Criminal Law 528 (1972)."

Respondent does not deny that malice aforethought is an element of capital murder, but does deny that it must be alleged specifically in an indictment or information. We agree. To make the charge, it is necessary to allege that the accused acted "unlawfully, willfully, knowingly, deliberately, and with premeditation" ¹ which would encompass any definitional concept of malice aforethought. As said in State v. Strickland, 609 S.W.2d 392 (Mo.banc 1981) at 395:

The test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution. State v. Tandy, 401 S.W.2d 409, 412-13 (Mo.1966); State v. Bott, 518 S.W.2d 726, 728 (Mo.App.1974).

Comparable results may be found in State v. Hammond, 571 S.W.2d 114, 116 (Mo. banc 1978) and State v. Downs, 593 S.W.2d 535, 540 (Mo.1980), and the point is ruled against appellant.

Second, appellant challenges the grand jury which returned the indictment against him, both as to (1) the procedure by which its members were selected and (2) the method whereby the foreman (foreperson) thereof was designated. Initially, we note our recent holding in State ex rel. Garrett v. Saitz, 594 S.W.2d 606 (Mo.banc 1980), wherein appellant was the relator and moving party, at page 608 that:

The United States Supreme Court has held that a criminal defendant in a state court has a constitutional right to have the grand jury considering his case selected from a fair cross-section of the community. Carter v. Jury Commission, 396 U.S. 320, 332, 90 S.Ct. 518, 524, 24 L.Ed.2d 549 (1970); Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469 (1953).

The legislature by statute has directed that in St. Louis County: "The circuit judges, or in lieu of a circuit judge the presiding judge may assign an associate circuit judge to act for a circuit judge, shall constitute a board of jury supervisors for the county, a majority of whom shall constitute a quorum for the transaction of business...." § 496.020, RSMo 1978. "The board of jury supervisors shall select the names of six hundred persons, known or believed by them to be in every way fitted for grand jury service, the selection to be repeated whenever deemed necessary by the supervisors, and the names shall be by them deposited in a special grand jury wheel, which, after being properly secured, shall be delivered to the clerk of the board of jury supervisors, who shall be responsible for the proper custody of the same, and which after the names are once placed therein, shall be opened and drawn only by a member of the board of jury supervisors in the presence of the other members of the board or a majority of them, upon the requisition of the judge having charge of the grand jurors for such number of grand jurors as may be required at any one time." § 496.160(1), RSMo 1978. All names placed on the master list by the "board" shall be persons "sober and intelligent, of good reputation, over twenty-one years of age and otherwise qualified." § 494.010, RSMo 1978.

The practice in St. Louis County is to draw one hundred names, at random, from the grand jury wheel. Sec. 496.170, RSMo 1978, requires that a minimum of twenty-four names be drawn. From the list thus created, the judge in charge of the particular grand jury may use any method, including personal interviews, to select the twelve persons to serve. This discretion plus use of the so-called "key man" system in the initial selection of the grand jury pool admittedly provides at least an opportunity for discrimination. However, neither the "key man" procedure nor the "opportunity" to discriminate rises to a per se constitutional violation. Hernandez v. Texas, 347 U.S. 475, 478-79, 74 S.Ct. 667, 670-71, 98 L.Ed. 866 (1953); Cassell v. Texas, 339 U.S. 282, 284, 70 S.Ct. 629, 630, 94 L.Ed. 839 (1949); Carter v. Jury Commission of Greene County, 396 U.S. 320, 331-37, 90 S.Ct. 518, 524-28, 24 L.Ed.2d 549 (1969). Compare Turner v. Touche, 396 U.S. 346, 355, 90 S.Ct. 532, 537, 94 L.Ed. 839 (1969) (companion case to Carter, supra ) and State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, 952 (banc 1946). Nevertheless, "key man" systems have been found unconstitutional in application. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

It is alleged that the procedure followed violated appellant's fifth and sixth amendment rights (U.S. Constitution). "In order to show that an equal protection (fifth amendment) violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." CASTANEDA, SUPRA, AT 494, 97 S.CT. AT 1280. ² "The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. (Citations omitted). Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. (Citations omitted). Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing." 430 U.S. at 494, 97 S.Ct. at 1280. To prove a fair cross-section (sixth amendment) violation has occurred, the defendant must show that (1) the group excluded is a "distinctive" group within the community; (2) the representation of this group is not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

We have before us evidence only as to the composition of a single grand jury pool, and it tends to be inadequate for examination of the degree of under-representation in relation to the community. State v. Dowe, 432 S.W.2d 272 (Mo.1968); United States v. Williams, 421 F.2d 529 (8th Cir. 1970). As noted by Spenlich and Jaspovice, Grand Juries, Grand Jurors, and the Constitution, 1 Hast.Con.L.Q. 63 (1974): "Representativeness does not mean that all grand juries must include members of each and every identifiable community group. Nor does the representativeness requirement demand exact proportional...