State v. Higgins

Decision Date06 December 1979
Docket NumberNo. 61285,61285
Citation592 S.W.2d 151
PartiesSTATE of Missouri, Respondent, v. Cody V. HIGGINS, Appellant.
CourtMissouri Supreme Court

James D. Boggs, Platte City, for appellant.

John Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.



Convicted of first degree murder and sentenced to life imprisonment, defendant sought reversal in the Court of Appeals, Western District, but the cause was transferred here by that court on its own motion prior to opinion. 1 Considering the case as though on original appeal, we affirm.


The facts related by defendant in his written confession are these: On the evening of February 11, 1977, Higgins who had been drinking heavily, met his friend Eddie Bowman at an arcade on North Cherry Street in North Kansas City and announced that he was broke and wanted "to pull a robbery." He asked Bowman if he knew a place to rob where they wouldn't be seen. Bowman stated he did and they left in Higgins' station wagon to the North Kansas City suburbs where they settled on the Price-Rite Market on Northwest Waukomis for their proposed robbery. Armed with a .22 caliber revolver Higgins went into the store and taking the gun from his waistband, aimed it at the cashier Donna Parshall and twice demanded money. When Mrs. Parshall refused, Higgins shot her and she fell to the floor, fatally wounded. With some difficulty Higgins opened the cash door and took the money. As he was leaving an older man entered the store, whom Higgins ordered to stay back.


According to eyewitnesses at the scene, Higgins then encountered a Miss Bowman (no relation to Eddie) also on her way toward the store entrance and he pointed his gun at her head ordering her to stand aside. With the gun trained on her, Higgins moved around Miss Bowman's parked car, then fired a shot into the ground, walked from the parking lot and broke into a run along the highway.


Higgins stated in his confession that after the shooting he and Bowman proceeded to the latter's house where they divided the loot, about $140.00.


Later that evening Higgins, while driving erratically near Olathe, Kansas on Interstate 35, was stopped by Kansas Highway Patrolmen and when questioned stated he was out driving to sober up. An officer closed the car door which Higgins left open in the traffic lane, and while so doing observed several beer cans in the car. One of the cans had been opened and was lying on the floor of the front seat with part of its contents spilled on the carpet. Three unopened beer cans were also lying on the floor. After placing defendant under arrest for driving while intoxicated the officer retrieved the cans from the car as evidence and at that time noticed the grips of a pistol protruding from beneath the driver's seat. He took the pistol, a 9-shot revolver, which contained eight live and one spent round of .22 caliber ammunition. Subsequent ballistics tests disclosed this was the murder weapon.


The Kansas City Police Department, acting on information from two confidential informants and three eyewitnesses, obtained a fugitive warrant for Higgins' arrest which was transmitted to police authorities in Bakersfield, California where Higgins was thought to have fled. At about 4:00 p. m. on February 16, 1977, Higgins and his companion Jeanette Olds were arrested outside of Bakersfield and the next day, two Kansas City detectives arrived to transport him to Missouri. Higgins, who had consulted with an attorney earlier in the day, waived his privilege against self-incrimination, confessed his involvement in the crimes 2 and waiving extradition was brought to Missouri for trial.


Defendant first contends that the provision of § 559.009(3), RSMo Supp.1975, 3 prescribing a life sentence for conviction of first degree murder, constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments of the United States Constitution and art. I, § 21 of our Missouri Constitution. Application of clearly established constitutional principles leads to rejection of this contention.

The eighth amendment of the United States Constitution and art. I, § 21 of the Missouri Constitution mandate that the legislature exercise its power to punish for criminal offenses " 'within the limits of civilized standards'." Woodson v. North Carolina, 428 U.S. 280, 288, 96 S.Ct. 2978, 2983, 49 L.Ed.2d 944 (1975); Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).

While the framers of the federal constitution may well have sought only to prevent cruel and barbarous punishments amounting to torture, see Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Cal.L.Rev. 839 (1969) and though many cases 4 stress this aspect of eighth amendment protection, it has long been recognized that the eighth amendment is susceptible to broader application. Today it is clear that the eighth amendment forbids excessive as well as barbarous punishments. Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); State v. Mitchell, 563 S.W.2d 18, 26 (Mo.banc 1978); State v. Agee, 474 S.W.2d 817, 822 (Mo.1971); State v. Motley, 546 S.W.2d 435, 438 (Mo.App.1976). The ultimate question is whether the punishment is disproportionate to the crime for which it is imposed. Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 929 (1975). State v. Agee, 474 S.W.2d 817, 822 (Mo.1971); State v. Johnson, 549 S.W.2d 348, 352 (Mo.App.1977). When determining the constitutionality of legislatively prescribed punishment it must first be noted that we presume its validity and those who seek invalidation bear a heavy burden of demonstrating that the statutory punishment is barbarous or excessive. 5 Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 49 L.Ed.2d 929 (1975); State v. Mitchell, 563 S.W.2d 18, 26 (Mo.banc 1978). Defendant has failed to meet that burden.

No crime is so disruptive of peace and order or more violative of the rights of the individual than murder. The security and lives of its members are the first objects of organized society and we cannot say that the legislature erred in punishing with a mandatory term of life imprisonment those who intentionally take life or kill in the course of a felony. An examination of the legislative enactments of other states supports this view. More than two-thirds of our sister states attach a penalty of mandatory life imprisonment to the crime of first degree murder. 6 While such a "headcount" is not controlling, the fact that a strong majority of jurisdictions have also adopted mandatory life sentences for first degree murder, lends credence to the view that our legislature's action is neither excessive nor capricious. 7

No cases have been suggested and none have been found holding a mandatory life sentence for murder violates those provisions of the Missouri or the federal constitutions. 8 The Minnesota Supreme Court, declaring that a mandatory life sentence for the crime of murder did not constitute cruel and unusual punishment, stated further that such sentences serve the legitimate legislative purpose of assuring that violent offenders do not return to society prematurely. State v. Walker, 306 Minn. 105, 235 N.W.2d 810, 814-815 (1975), Cert. denied, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976).

Finally, because the death penalty may be prescribed for murder, Gregg v. Georgia, 428 U.S. 153 at 187, 96 S.Ct. 2909, 49 L.Ed.2d 929 (1976), it follows that the penalty of mandatory life imprisonment for this most heinous of crimes is constitutionally permissible. We hold that § 559.009(3), RSMo Supp.1975 does not constitute cruel and unusual punishment in-so-far as it prescribes a mandatory sentence of life imprisonment for convictions of first degree murder.


Defendant next contends the mandatory sentence of life imprisonment provided by § 559.009, RSMo Supp.1975 violates Missouri Constitution art. II requiring the separation of governmental power 9 by interfering with an inherent judicial power to exercise discretion and to impose only such punishment as the Court may deem appropriate. 10 Such has never been the law of this State and, as we shall presently discuss, is supported by scant authority elsewhere.

It has been consistently held that fixing punishment for a crime defined by statute is the province of the legislature, not the courts. State v. Alexander, 315 Mo. 199, 285 S.W. 984, 985 (1926); State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777, 779 (1928); State v. Motley, 546 S.W.2d 435, 437 (Mo.App.1976); see cases cited, Missouri Digest under Constitutional Law, k 70.1(10). Indeed, if we were to hold that the Court could assess a punishment not authorized by statute, it would constitute an usurpation of legislative authority. The consequences of such a position were perceived more than half a century ago by the United States Supreme Court in Ex parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916), which stated:

(I)f it be that the plain legislative command fixing a specific punishment for crime is subject to be permanently set aside by an implied judicial power upon considerations extraneous to the legality of the conviction, it would seem necessarily to follow that there could be likewise implied a discretionary authority to permanently refuse to try a criminal charge because of the conclusion that a particular act made criminal by law ought not to be treated as criminal. And thus it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments, and hence leave no law to be enforced.

Notwithstanding this line of authority defendant would have us hold otherwise and relies on State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), to support his position. 11 McCoy involved an Idaho statute requiring a minimum 10...

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