State v. Gilbert

• Decision Date: 22 April 2003
• Docket Number: No. SC 84214.,SC 84214.
• Citation: 103 S.W.3d 743
• Parties: STATE of Missouri, Respondent, v. Lewis E. GILBERT, Appellant.
• Court: Missouri Supreme Court

103 S.W.3d 743

STATE of Missouri, Respondent, v. Lewis E. GILBERT, Appellant.

No. SC 84214.

Supreme Court of Missouri, En Banc.

April 22, 2003.

Rehearing Denied May 27, 2003.

COPYRIGHT MATERIAL OMITTED

Deborah B. Wafer, Office of Public Defender, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Atty. Gen., Jefferson City, for Respondent.

DUANE BENTON, Judge.

In August 1994, Lewis E. Gilbert and an accomplice, Eric Elliott, stole a car in Ohio. They began driving southwest across the country. A few days later, after parking in a field in Callaway County, the car became stuck in the mud. Planning to steal money and another car, Gilbert and Elliot walked to the nearby home of William F. Brewer, age 86, and Flossie Mae Brewer, age 75. After talking with the couple for a half-hour, they shot both of them three times in the head, and stole their car, cash, and rifles. Gilbert and Elliot were arrested a week later in New Mexico.

A jury convicted Gilbert of two counts of first-degree murder, and one count each of first-degree burglary, first-degree tampering, stealing, and armed criminal action. He received two death sentences, life imprisonment, and 29 years of imprisonment. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. Affirmed.

I.

Gilbert claims the court should have allowed defense counsel to ask the venire panel whether they ever made an oral or written statement about the death penalty. Defense counsel asked:

Q: Can you recall — and I agree that this is not a thing that people talk about every day. I'm asking if you recall personally ever having made a statement from words from your own mouth or maybe written a letter to the editor or anything about the death penalty? I'm talking about do you recall ever making a statement about the death penalty from your own mouth?

The judge sustained the State's objection to relevancy and materiality, and limited the defense to asking only about formal statements and writings. Gilbert claims this violated his rights to a fair trial, due process, freedom from cruel and unusual punishment, and reliable sentencing, in violation of the United States Constitution, Amendments V, VI, VIII, and XIV; the Missouri Constitution, Article I, sections 10, 18(a), and 21; and section 494.470 RSMo 1994¹.

An adequate voir dire that identifies unqualified jurors is necessary to a fair trial. Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492, 503 (1992). The purpose of voir dire is to discover bias or prejudice in order to select a fair and impartial jury. Knese v. State, 85 S.W.3d 628, 632 (Mo. banc 2002). The trial judge has discretion to determine the appropriateness of specific questions. State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000).

This Court reviews voir dire rulings for an abuse of discretion. State v. Kreutzer, 928 S.W.2d 854, 861 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997); State v. Clark, 981 S.W.2d 143, 146 (Mo. banc 1998). In addition, the defendant has the burden to show a "real probability" of prejudice from the abuse of discretion. Oates, 12 S.W.3d at 311.

The trial judge limited defense counsel to asking whether panel members had ever made any formal speeches or writings on the death penalty. This was not an abuse of discretion. In the Kreutzer case, the questions were:

Q: We're not in the courtroom, I walk up to you in a coffee shop, maybe I know you, and we sit down and we start talking, and we see in the paper that a death penalty has been carried out. And I say to you, what do you think of the death penalty, what are you going to tell me?

[Objection sustained]

. . . .

Q: Have you ever expressed an opinion about the death penalty before?

A: Probably.

Q: Do you remember what you said, or can you recall or reconstruct what you said?

[Objection sustained]

This Court affirmed because counsel asked open-ended questions about how prospective jurors felt or thought about certain issues. Kreutzer, 928 S.W.2d at 864. In the present case, defense asked whether the panel members had "ever" made a statement about the death penalty — in language almost identical to that in Kreutzer.

The trial judge did not abuse discretion by following the precedent of this Court.

Moreover, this ruling did not prejudice the defense. Counsel asked many questions of the potential jurors, exploring their beliefs about the death penalty. These questions included whether they understood the law of aggravating and mitigating circumstances; whether they could follow the court's instructions on sentencing; whether they could consider evidence in mitigation; and whether they could vote for either the death penalty or life without parole. The primary purpose of death qualification is to determine whether prospective jurors have such strong views about the death penalty that they cannot be impartial in sentencing. Morgan, 504 U.S. at 728-29, 112 S.Ct. at 2229, 119 L.Ed.2d at 502. In this case, there was not a real probability of prejudice from the trial judge limiting voir dire to formal statements and writings about the death penalty.

II.

Gilbert claims the trial court should have quashed the information because it did not plead the statutory aggravating circumstances later submitted in the penalty phase. This, he contends, is required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

This Court rejected this argument in State v. Tisius, 92 S.W.3d 751, 766-67 (Mo. banc 2002). See also United States v. Sanchez, 269 F.3d 1250, 1261 n.16 (11th Cir.2001), cert. denied, 535 U.S. 942, 122 S.Ct. 1327, 152 L.Ed.2d 234 (2002); State v. Nichols, 201 Ariz. 234, 33 P.3d 1172, 1174-75 (App.2001); People v. Ford, 198 Ill.2d 68, 260 Ill.Dec. 552, 761 N.E.2d 735, 738 n.1 (2001), cert. denied, 536 U.S. 963, 122 S.Ct. 2672, 153 L.Ed.2d 845 (2002); State v. Mitchell, 353 N.C. 309, 543 S.E.2d 830, 842, cert. denied, 534 U.S. 1000, 122 S.Ct. 475, 151 L.Ed.2d 389 (2001).

Gilbert further argues that article I, section 17 of the Missouri Constitution, requires that the indictment or information list the aggravating circumstances. This is also required, he asserts, by the Sixth Amendment guarantee that he be "informed of the nature and cause of the accusation." The Tisius case, in effect, rejected these contentions by holding that a charge of first-degree murder notifies the defendant that the maximum penalty is death. Tisius, 92 S.W.3d at 767, quoting State v. Cole, 71 S.W.3d 163, 171 (Mo. banc 2002). In this case, pursuant to section 565.005, the state gave defendant notice, before trial, of the aggravating circumstances it intended to prove at the second stage of trial. Section 565.005 meets the standard of both the federal and state constitutions.

III.

According to Gilbert, the trial court erred in submitting Instructions 6 and 10, the verdict directors for murder in the first degree, because they attribute the conduct elements to either him or Elliott. He alleges there was no evidence he committed any conduct elements of the offense.

Instruction 6, the verdict director for first-degree murder of Flossie Brewer, read as follows (emphasis added):

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about August 30, 1994, in the County of Callaway, State of Missouri, the defendant or Eric Elliott caused the death of Flossie Brewer by shooting her, and Second, that the defendant or Eric Elliott knew or was aware that his conduct was practically certain to cause the death of Flossie Brewer, and

Third, that the defendant or Eric Elliott did so after deliberation, which means cool reflection on the matter for any length of time no matter how brief

then you are instructed that the offense of murder in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

Fourth, that with the purpose of promoting or furthering the death of Flossie Brewer, the defendant aided or encouraged Eric Elliott in causing the death of Flossie Brewer and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief

then you will find the defendant guilty under Count I of murder in the first degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

(Instruction 10, the verdict director as to William Brewer, was identical, except for the victim's name.)

On review, this Court accepts as true all evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). If the evidence is unclear as to which person committed the conduct constituting the offense, the jury instruction should be written in the disjunctive. Id.; MAI-CR3d-304.04, Note on Use 5(c).

In the Dulany case, the defendant was convicted of capital murder. Dulany and an accomplice were the last people in the victims' house while they were alive. Dulany admitted holding a gun on the victims, getting rope to bind them, and taking out the empty cans of roofing cement poured over the helpless couple. She also admitted fleeing the state after the crimes. In conflicting confessions, she named different men as responsible for the victims' deaths.

In Dulany, the verdict directors were disjunctive, as in this case. This Court found that disjunctive instructions give the jury the opportunity to consider evidence that is unclear. Id. at 54-55. When the defendant has purposely aided in capital murder and has the same intent as the principal, they are liable to the same degree. Id. at 56. There can be no prejudice...