State v. Guinan

Decision Date15 February 1984
Docket NumberNo. 64074,64074
PartiesSTATE of Missouri, Respondent, v. Frank J. GUINAN, Appellant.
CourtMissouri Supreme Court

Robert A. Hampe, St. Louis, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.


Defendant Frank Joseph Guinan was convicted of capital murder of penitentiary inmate John McBroom and his punishment fixed at death, the jury finding the following statutory aggravating circumstances: defendant had a substantial history of serious assaultive criminal convictions [§ 565.012.2(1) ]; the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind [§ 565.012.2(7) ]; and, that at the time of the murder defendant was in the lawful custody of a place of lawful confinement [§ 565.012.2(9) ].

In this appeal defendant challenges the sufficiency of the evidence to support his conviction, attacks the constitutionality of Missouri's death penalty, contends he was prejudiced by the jury selection procedures employed at his trial, and avers certain evidence and courtroom security measures deprived him of a fair trial. We affirm.

Initially, we consider defendant's point that the evidence was insufficient to support the guilty verdict. In so doing, we view the evidence in the light most favorable to the State, together with all reasonable inferences to be drawn therefrom, and ignore contrary evidence and inferences. State v. Bolder, 635 S.W.2d 673, 679 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983). 1

Defendant was an inmate at the Missouri State Penitentiary and celled with Richard Zeitvogel 2 in a ground floor cell of Housing Unit 4. This building housed 296 inmates and consisted of four tiers of cells on either side of the building. The victim, John McBroom, and William Houchin were cellmates of cell 36 which was located on the second tier of cells.

Because January 25, 1981, fell on Sunday, Sergeant Matthias was the only correctional officer on duty in Unit 4. He was located in a booth on the ground floor from which he could observe all cells. About 10:30 a.m., the officer began to notice what he considered unusual and suspicious behavior on the part of several inmates. Inmates Sherrill, Cleveland and Hewitt had left the places where they normally "hung out" and had taken up positions where they could watch the officer; defendant and Zeitvogel made several trips to upper tiers; and, beginning at 10:55 a.m., Cleveland and Hewitt made requests of the officer that he ring the buzzer for "mainline"--a term for the time when most inmates went to their noon meal. The request for "mainline" was considered extraordinary and highly suspicious by the officer because inmates were free to go to lunch before "mainline" sounded. "Mainline" causes a considerable increase in noise and movement within the building.

A few minutes after 11:00 a.m., when the officer saw defendant and Zeitvogel go back upstairs another time and Cleveland made another request for "mainline", Sergeant Matthias called his shift captain, Captain Borghardt, and told him something was wrong and he had the feeling he was going to need some help. The captain immediately summoned two other officers and headed for Unit 4.

Shortly after the sergeant made the telephone call but before assistance arrived, he saw defendant and Zeitvogel emerge from cell 36. Both men were covered with blood and each was carrying a knife made from scissor halves. As defendant was attempting to close the cell door to cell 36 he saw Sergeant Matthias watching him. Defendant and Zeitvogel started running from that area. As defendant entered a catwalk which connected cell tiers on opposite sides of the building, he confronted inmate Joseph Camillo who had also drawn a knife. At this point Captain Borghardt arrived with two other officers. Camillo retreated off the catwalk to allow the captain to get between him and the defendant. Defendant threatened Camillo, calling him a "snitch" and telling Camillo that "I killed your punk and I'll kill you too". The captain asked Camillo to surrender his weapon and Camillo said he would as soon as defendant and Zeitvogel were disarmed. The captain made similar requests of defendant and Zeitvogel and they refused while defendant made several swings with his knife at the unarmed captain. At this point inmate Medley, cellmate of Camillo, appeared on the tier nearest defendant and Zeitvogel. Medley was carrying an electric fan in one hand and a hammer in the other. Zeitvogel, spotting Medley, referred to him as "the other snitching son-of-a-bitch" and said "let's get him". With that, defendant and Zeitvogel charged at Medley. As defendant was attempting to stab Medley, Captain Borghardt grabbed defendant from behind and attempted to disarm him. Defendant attempted to break away from the officer's grasp and tried to stab him. Defendant was finally subdued with the help of another officer. Both the captain and the officer assisting him were cut on their hands by defendant's knife. Zeitvogel was disarmed by other officers.

During the flight and capture of defendant and Zeitvogel, Sergeant Matthias saw inmate McBroom come out of cell 36, 3 covered with blood and bleeding profusely. McBroom collapsed outside the cell and was taken to the prison hospital where he was pronounced dead at 11:27 a.m., as a result of massive blood loss. He had suffered at least 16 separate stab wounds, including three around the left eye which had penetrated into the brain, and others in the chest and back which had severed major blood vessels in the liver and right lung. Six of the stab wounds were in the victim's back or posterior shoulder area.

Immediately after being taken into custody, defendant and Zeitvogel were physically examined and photographs were taken of them. The examinations and photographs revealed that except for a superficial scratch on defendant's left upper arm neither man had any cuts, bruises, abrasions or other injuries. The blood on their clothing and on the knife defendant carried was found to match that of McBroom. The victim's cell revealed considerable quantities of blood and signs of a struggle near his bed.

Defendant did not testify but called eleven inmate witnesses, including Zeitvogel, in support of a theory that the victim had attacked Zeitvogel and Zeitvogel had stabbed him in self-defense. The eleven witnesses admitted to a total of 55 prior felony convictions, including eleven homicides. The jury returned a verdict of guilty.

At the punishment stage of the trial the State introduced evidence of defendant's prior convictions for assault with intent to kill with malice (2 convictions), first degree robbery with a dangerous and deadly weapon (2 convictions), escape (2 convictions), second degree burglary (3 convictions), stealing (2 convictions) and auto theft. In addition, the State presented evidence of defendant's present incarceration and a previous stabbing incident. Defendant presented no evidence. The jury returned their verdict fixing defendant's punishment at death, finding the three statutory aggravating circumstances, supra, and additional aggravating circumstances that defendant was convicted in 1973 and 1977 for the felony of assault with intent to kill with malice.

Considering all of the evidence, direct and circumstantial, together with all reasonable inferences therefrom, in support of the verdict, and casting aside all contrary evidence and inferences, the jury could reasonably find, beyond a reasonable doubt, that defendant and Zeitvogel murdered McBroom. 4

Three of defendant's points relate to jury selection. He first avers that the "Witherspooning" [Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ] of the jury panel should have been conducted separately with each individual venireperson, or alternatively such examination be prohibited altogether, because the mere asking of the death-qualification questions tainted the minds of the potential jurors.

In State v. Smith, 649 S.W.2d 417 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983), we said: "[T]he examination of jurors as to their qualifications is conducted under the supervision of the trial court and the nature and extent of the questions counsel may ask are discretionary with that court (citation omitted)." Id. at 428.

We find no basis for a finding of an abuse of discretion by the trial court not requiring separate and individual voir dire of the panel members. Here, the trial court permitted the division of the panel into two groups for voir dire examination. This procedure was within the trial court's discretion. See State v. Yowell, 513 S.W.2d 397, 403 (Mo. banc 1974).

There is no evidence that death-qualification questioning creates bias in the minds of potential jurors and the studies relied upon by the defendant does not convince us otherwise. Similarly rejecting the contention that death-qualification questioning be conducted individually have been the courts of New Mexico [State v. Hutchinson, 99 N.M. 616, 661 P.2d 1315, 1319 (1983) ], Maryland [Poole v. State, 295 Md. 167, 453 A.2d 1218, 1229 (1983) ], Arkansas [Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666, 667 (1983) ], North Carolina [State v. Brown, 306 N.C. 151, 293 S.E.2d 569, 583, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982) ], Indiana [Fielden v. State, 437 N.E.2d 986, 992 (Ind.1982) ], and Louisiana [State v. Lindsey, 404 So.2d 466, 476-77 (La.1981) ]. Furthermore, defendant's attempt to exclude all death-qualification questions has been rejected by the United States Supreme Court and by this Court. Adams v. Texas, 448 U.S. 38, 44-45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 596, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978); State v. Stokes, ...

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