State v. Hurt, 13156

• Citation: 668 S.W.2d 206
• Decision Date: 12 March 1984
• Docket Number: No. 13156,13156
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles R. HURT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 206

668 S.W.2d 206

STATE of Missouri, Plaintiff-Respondent, v. Charles R. HURT, Defendant-Appellant.

No. 13156.

Missouri Court of Appeals,

Southern District,

Division Two.

March 12, 1984.

Motion for Rehearing or to Transfer

Denied April 4, 1984.

Application to Transfer Denied

May 15, 1984.

Margaret Elise Branyan, Asst. Public Defender, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., David C. Mason, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Presiding Judge.

On July 18, 1981, inmate Frank Hood was found stabbed to death in his cell in the Missouri State Penitentiary. He and the defendant had been cellmates for approximately two weeks. The defendant was charged with the capital murder of Hood under § 565.001. In a bifurcated trial a jury first found him guilty of capital murder and then fixed his punishment at life imprisonment without eligibility for probation or parole for 50 years. He was sentenced accordingly. A brief summary of the basic facts will provide a sufficient background for consideration of the points presented.

A guard saw Hood alive in his cell at approximately 5:50 p.m. This was during a period in which the cells were locked. The cells were opened for "evening yard" approximately 20 minutes later. During the interval no one entered the cell. When the cell was opened, the defendant immediately left. Within seconds the body of Hood was discovered in the cell covered with bed clothing.

The defendant was found in the yard. About 6:30 p.m. he was taken to the control center where he was interrogated. He first gave two different oral statements of events absolving himself of complicity in the homicide. A third statement was reduced to writing. In that statement he confessed to stabbing Hood. But, he justified the homicide as a defense against Hood's attack with a hammer to subject the defendant to sodomy. He testified the evening before, by use of the hammer, Hood forced him to submit to sodomy. Hood bragged he was going to make him his "punk." He got a knife to protect himself. The stabbing occurred during a struggle started when Hood again attacked him with the hammer. He called as a witness a fellow inmate who purported to see from the shower the struggle with Hood wielding the hammer. This testimony was discredited by evidence of prison procedure. The defendant bore no marks attributable to the hammer. Hood was 5 feet 5 inches tall. He weighed 150 pounds and was described as a quiet individual. He had 64 stab wounds, some as deep as four or five inches. Sixteen wounds penetrated the left lung, five the heart, and one into the liver. Each of twenty-six or twenty-seven wounds could have proved fatal.

The defendant's first point asserts the unconstitutionality of §§ 565.001, 565.006.2, 565.008.1 and 565.012 "because said sections, in particular Section 565.008, violate the United States and Missouri Constitutions because the penalty authorized by that section constitutes cruel and unusual punishment without consideration for individualization of sentences, and also violates the defendant's due process and equal protection rights." The last clause of that point is an abstract statement and presents nothing for review. State v. Tatum, 653 S.W.2d 241 (Mo.App.1983). However, the point will be considered as attacking the constitutionality of those sections because his sentence of life imprisonment without eligibility for probation or parole for fifty years violates the Eighth Amendment of the Federal Constitution and Art. I, § 21 of the Constitution of Missouri.

Even though not questioned by the parties, this point requires consideration of the jurisdiction of this court. State v. Charity, 637 S.W.2d 319 (Mo.App.1982). Art. V, § 3 of the Constitution of Missouri in part provides, "The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of a ... statute ... of this state ...." However, this court is not deprived of jurisdiction unless the constitutional question is real and substantial and not merely colorable. Caesar's Health Club v. St. Louis County, 565 S.W.2d 783 (Mo.App.1978), cert. denied 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760 (Mo.App.1974). A real and substantial question is not raised when the Supreme Court has once determined that question. City of St. Louis v. Gavin, 222 S.W.2d 531 (Mo.App.1949).

The Supreme Court has repeatedly determined that life imprisonment without eligibility for probation or parole for 50 years is not cruel or unusual punishment for capital murder. State v. Turner, 623 S.W.2d 4 (Mo. banc 1981), cert. denied 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982); State v. Borden, 605 S.W.2d 88 (Mo. banc 1980); State v. Olinghouse, 605 S.W.2d 58 (Mo. banc 1980). This court is aware of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In that case the United States Supreme Court held that such a life sentence was disproportionate punishment for a recidivist who had committed seven non-violent felonies, not against a person, to which alcohol was a contributing factor. But, the United States Supreme Court has repeatedly held that death, as an alternative to life imprisonment, is not per se a cruel and unusual punishment for capital murder. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); State v. Trimble, 638 S.W.2d 726 (Mo. banc 1982), cert. denied 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1031 (1983); State v. Mercer, 618 S.W.2d 1 (Mo. banc 1981), cert. denied 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981). It has been declared that mandatory life sentences "serve the legitimate legislative purpose of assuring that violent offenders do not return to society prematurely." State v. Higgins, 592 S.W.2d 151, 156 (Mo. banc 1979). Solem v. Helm, supra, does not lessen the binding authority of the determinations in State v. Turner, supra; State v. Borden, supra; State v. Olinghouse, supra. The defendant has recognized this as he does not actually raise the constitutional question of disproportionate punishment. The point he has raised has been treated in a previous case. He "does not suggest a mandatory life sentence for the crime of capital murder is invariably excessive; rather, the Eighth Amendment requires individualized consideration of each offender and each crime." State v. Borden, supra, at 92. The Supreme Court of Missouri, citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), held that neither constitution invalidates a legislative determination that such individualized consideration is not required in capital murder cases where the death penalty is not imposed. State v. Borden, supra. The defendant's stated point presents no real constitutional question.

Further, the random arguments of the defendant, under, but beyond the scope of his first point as stated, need not be considered. State v. Dentman, 635 S.W.2d 28 (Mo.App.1982). However, it is appropriate to observe that they too present no real constitutional question. His argument the sentence is disproportionate to the crime of capital murder has been repeatedly determined adversely. State v. Turner, supra; State v. Borden, supra; State v. Olinghouse, supra. His argument based upon the asserted discretion vested in the prosecuting attorney and the court or jury has likewise been adversely determined. State v. Trimble, supra; State v. Thomas, 625 S.W.2d 115 (Mo.1981). His complaints about the vagueness of § 565.012.2 and the limitations of § 565.012.3 are without merit. He is not in a position to complain about the facts to be considered in the imposition of the death penalty. State v. Thomas, supra. Further, those contentions have also been adversely determined. State v. Bolder, 635 S.W.2d 673 (Mo. banc 1982); State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982), cert. denied 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). The defendant has raised no real constitutional question and this court has jurisdiction. State v. Charity, supra. Upon the basis of the authorities cited, his first point is denied.

The defendant next contends he was denied a trial within 180 days of his arraignment as required by § 545.780. The defendant concedes there were 290 days between his arraignment and trial. He was arraigned on July 31, 1981. His case was then set for trial on November 23, 1981. On October 13, 1981, his motion for a mental examination was sustained and the case reset for the next available day, January 25, 1982. The defendant contends the interval should not be excluded because the report of the mental examination was filed on October 29, 1981, and the examination would not have interfered with the original trial setting. At the time of resetting, the trial court was justified in believing the mental examination and developments from the examination would not permit a trial on November 23, 1981. The trial court was entitled to maintain its docket in such a manner that insured the utilization of all its time. The interval of delay did result from a mental examination of the defendant and is excluded. § 545.780.3(1)(a).

Before January 25, 1982, the defendant was granted two changes of venue. The case was last sent to Greene County where it was promptly set for the first available day, March 8, 1982. This additional delay resulted from those changes of venue and is excluded. § 545.780.3(1)(d).

Then on the state's application the case was continued to April 5, 1982. The trial court found such action served the ends of justice and gave the reason therefore as required by § 545.780.3(5)(a). The reason was a prior trial commitment in a civil case of the assistant prosecuting attorney. It must be noted the application was made as soon as it was determined the civil case would actually be tried and involved a witness coming...