State v. Harris

Decision Date22 February 1994
Docket NumberNo. 73011,73011
Citation870 S.W.2d 798
PartiesSTATE of Missouri, Respondent, v. George B. HARRIS, Appellant.
CourtMissouri Supreme Court

Susan M. Hunt, Kansas City, for appellant.

Jeremiah (Jay) Nixon, Atty. Gen., Breck Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

A jury convicted George Harris of murder in the first degree and armed criminal action and recommended that Harris be sentenced to death. The trial court overruled his Rule 29.15 motion. This direct appeal followed. We have jurisdiction. Mo. Const. Art. V, § 3. Affirmed.

I.

We review the facts in the light most favorable to the verdict. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984).

George Bernard "Baby" Harris hit a lucky streak on the morning of March 11, 1989. He won some money shooting craps. In fact he won enough money that people noticed it and figured he had a little to spare. A man who needed money asked Harris to let him "pawn" two machine guns, an Uzi and a .45 caliber Thompson automatic machine gun. Harris agreed, gave the man $500 in return for the machine guns and took them to the trunk of his car.

Harris walked back toward the crap game, worried that someone would steal the guns from his car. When he saw Michael Taylor, he asked Taylor if Taylor would keep the machine guns for him. When Taylor agreed, Harris followed Taylor to Taylor's house at 2741 Chelsea. Taylor shared the house with Rodney Butler, Ross Talliferro and Stanley "Hank" Willoughby. When Harris arrived, Taylor asked Willoughby to come down to Harris' car. Harris spoke with Willoughby, removed a box containing the machine guns from the trunk and handed it to Willoughby. Willoughby walked toward the house with the weapons. Rodney Butler, who was sitting on the porch, asked Willoughby not to bring the guns in the house. Willoughby handed the box containing the machine guns to Cortez and Anthony Taylor, Michael Taylor's younger brothers. Willoughby told the boys to hide the guns somewhere near the house. Harris left. Cortez and Anthony took the box from Willoughby and hid it under some bushes in the backyard. The young Taylors left without telling Willoughby where they had hidden the guns.

At about 8:00 p.m., Harris returned looking for Michael Taylor. Butler answered the door and indicated that Taylor was upstairs sleeping. Harris went upstairs and told Taylor he had come to pick up the guns. When Taylor told him that he did not know where the guns were, Harris insisted that he needed them right away. At some point during the day Harris had suffered the grave injustice of being called a "punk" and told Taylor that he was going to do a "drive-by" shooting to show "them" that he was not a punk. Taylor told Harris to ask Willoughby about the machine guns when Willoughby returned from "picking up some girls."

Harris went downstairs. Taylor stayed in bed. Some time later, Harris yelled for Michael Taylor to come downstairs. When Taylor came down, he found Harris and several other people downstairs including Willoughby, Ross Talliferro, Delmar Hatcher, Deonna Jacobs, an "Ingrid" and Jarlath Potts.

Harris asked Taylor for his guns. Taylor again told Harris to ask Willoughby. Willoughby explained that he did not know where the guns were because Anthony and Cortez Taylor had hidden them. Harris insisted that he wanted his guns and that he wanted them now. Willoughby went outside to look for the guns. Harris was heard to say, "I'm going to kill that nigger." Talliferro, Hatcher and the two girls went upstairs. Five minutes later, Willoughby returned without the guns. Butler left to look for them.

At this point, there were only three people remaining in the living room area: Michael Taylor, George Harris and Hank Willoughby. Willoughby told Harris that if he wanted his guns, he would have to wait until Anthony and Cortez came back. Harris insisted on getting his guns right away. Willoughby said, "Well, I can't help you." Harris got up from the chair, pulled a .41 caliber Ruger Blackhawk magnum revolver from his waistband, and shot the victim in the lower face and neck. The bullet passed through Willoughby's carotid artery. Willoughby staggered next door to 2739 Chelsea to Michael Taylor's mother's house and collapsed on the steps. A few minutes later, some of the occupants at 2741 Chelsea went out to call an ambulance and the police. Meanwhile, Butler arrived with the guns, placed them on the porch at 2739 and ran inside.

Harris took the guns and drove away, ultimately making his way to Sabrina Lowe's apartment. From there, Harris and Lowe went to the Champagne Lounge looking for a man named "Rudi". Harris told Lowe he intended to kill Rudi and had bought the machine guns for that purpose.

Willoughby died before he reached the hospital.

Law enforcement officials arrested Harris in Columbia, Missouri, on March 15, 1989, after Harris and others had committed an armed robbery there.

At trial, the jury found Harris guilty of the first degree murder of Stanley "Hank" Willoughby, found five aggravating circumstances and recommended that Harris be put to death. This appeal followed. For the sake of a more coherent presentation of the discussion of Harris' points on appeal, we consider those points as the allegations of error relate to the order of trial.

II.

Harris' brief sets out five points of error relating to jury selection.

A.

First, Harris claims that the trial court erred when it sustained the state's challenges for cause to venirepersons Gold, Thomas and Velasquez. Harris claims that elimination of these members of the venire panel, who expressed "conscientious scruples" (appellant's brief) about the death penalty, violated his right to a fair and impartial jury in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution.

In Wainwright v. Witt, 469 U.S. 412, 416, 105 S.Ct. 844, 848, 83 L.Ed.2d 841 (1985), the Supreme Court held that a capital defendant's right to trial by a fair and impartial jury is violated when a trial court excuses members of the venireperson for cause merely because they express conscientious objections to capital punishment. However, Witt makes it clear that a venireperson can be removed for cause in a capital case if the venireperson's views would prevent or substantially impair his or her ability to perform the duties as a juror in accordance with the instructions and oath. Id., 469 U.S. at 425-26, 105 S.Ct. at 853-54.

The trial court possesses broad discretion in determining whether a prospective juror is prepared to give both the defendant and the state a fair trial and consider the full range of punishments the law permits if the defendant is found guilty.

What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with a definite impression that a prospective juror would be unable to faithfully and impartially apply the law ... [T]his is why deference must be paid to the trial judge who sees and hears the juror.

Witt, 469 U.S. at 424-26, 105 S.Ct. at 852-54. The trial court's ruling on a challenge for cause will not be disturbed on appeal unless it constitutes a clear abuse of discretion and results in a genuine probability of injury to the complaining party. State v. Feltrop, 803 S.W.2d 1, 7 (Mo. banc 1991).

As to venireperson Vivian Gold, the record shows that she stated several times that she opposed the death penalty and that she could not realistically consider imposing the death sentence. After repeated questioning she said she could consider the death penalty, but then she stated that she did not think she could sign a death verdict. The state challenged Ms. Gold for cause and the trial court sustained that challenge.

We find no abuse of discretion in the trial court's decision. Through questioning, the state demonstrated that Ms. Gold's views would prevent or substantially impair her ability to properly perform her duties as a juror.

Patricia Thomas gave inconsistent answers, which led the court to conclude that her views would substantially impair the performance of her duties as a juror. She first stated that she could not think of any circumstances in which she would choose death over life as a punishment. Then she repeatedly stated that she just did not know whether she could impose the death penalty on account of her moral beliefs. Under further questioning, she tentatively stated that she could consider both the alternative of life without parole and death.

The prosecutor challenged Thomas for cause and, on the basis of her demeanor and inconsistent answers, the court sustained the challenge for cause. There is ample support in this record for the trial court's conclusion that Ms. Thomas would be "unable to faithfully and impartially apply the law." Witt, 469 U.S. at 426, 105 S.Ct. at 853.

Ms. Velasquez displayed a similar pattern of equivocation to that expressed by Ms. Thomas. In addition, she stated she did not know if she could keep an open mind about the death penalty, that she would require 100 percent proof of guilt, and would have to be absolutely sure. The trial court concluded that she would not be able to perform her duties as a juror.

We find no abuse of discretion in the trial court's decision to sustain the challenge for cause to Ms. Velasquez.

B.

Harris next contends that the trial court erred when it overruled his challenge for cause to venireperson Marilynn Hentz. He alleges that Ms. Hentz expressed bias in favor of the death penalty and her...

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