State v. Lashley, 63994

• Court: United States State Supreme Court of Missouri
• Writing for the Court: BILLINGS; RENDLEN; BLACKMAR; BLACKMAR
• Citation: 667 S.W.2d 712
• Parties: STATE of Missouri, Respondent, v. Frederick LASHLEY, Appellant.
• Docket Number: No. 63994,63994
• Decision Date: 20 March 1984

Page 712

667 S.W.2d 712 STATE of Missouri, Respondent,
v.
Frederick LASHLEY, Appellant. No. 63994. Supreme Court of Missouri,
En Banc. March 20, 1984.
Rehearing Denied April 16, 1984.

Page 713

Henry Robertson, Asst. Public Defender, St. Louis, for appellant.

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

BILLINGS, Judge.

Defendant Frederick Lashley, 17, was convicted of the capital murder of his physically handicapped 55-year-old cousin and foster mother, Janie Tracy, while robbing her of $15. The punishment prescribed by the jury and approved by the trial court is death. We affirm.

The victim lived alone in a downstairs apartment in the City of St. Louis. She had heart trouble, diabetes and a neuro-muscular problem that caused her to limp and required her to use a walking cane. She had difficulty walking since she had undergone a brain operation a number of years ago. The operation had resulted in the removal of a portion of her skull on the left side of her head. Defendant had lived with and been cared for by Miss Tracy (and her mother) from the time he was two years of age until he was sixteen years old. He had been present on occasions when there had been discussions concerning the soft spot on Miss Tracy's head.

On the night of April 9, 1981, Miss Tracy was visiting her sister, Mrs. Williams, who lived several blocks from the Tracy apartment. Sometime before 8:30 p.m., defendant entered the apartment by climbing through the top of a window on the rear porch. He unscrewed the light bulb in the front room so that the light would not come on when the switch was turned on. His admitted purpose was to ambush Miss Tracy and take her money when she returned home. Defendant, armed with a cast iron skillet (and the jury could reasonably find he also had a butcher knife having a seven and one-half inch blade), waited in the dark in the bedroom adjacent to the front room.

Miss Tracy left her sister's home between 8:00 and 8:30 p.m., driving her car. In his confessions to the police, one of which was videotaped, defendant stated

Page 714

that when Miss Tracy entered the front door of the apartment she attempted to turn on the light. When the light did not come on she started into the room where defendant was waiting. As she reached for the light switch he struck her in the head with the iron skillet, breaking it into two pieces. He said she fell and began screaming and he put his hand over her mouth. When asked where the knife came from the defendant stated:

Off the floor. It was on--well, really it was on the floor. That's--I mean, you know, I just see the knife and then I grabbed it, you know. And then she had it in her hand. We both had it. And then I finally got it--got it back and then that's when I stuck her with it.

Defendant took $15 and car keys from Miss Tracy's purse, locked the front door on the way out of the apartment, and drove off in the victim's automobile. He was apprehended while driving the stolen vehicle shortly after midnight.

An upstairs neighbor of Miss Tracy, Mrs. Ali, 81, had heard screams followed by something which sounded "like a fall" from the downstairs apartment. She telephoned the Tracy apartment and when she did not get an answer, called Mrs. Williams to come over and investigate. Mrs. Williams and her husband went to her sister's apartment shortly after 8:30 p.m. Mrs. Williams noticed her sister's car was not parked outside. She had a key to the apartment and upon entering it, saw her sister on the floor of the bedroom, bleeding about the head. She also saw a butcher knife near Miss Tracy and a broken skillet on the bedroom floor. Police and medical assistance were immediately summoned.

Hospital records showed Miss Tracy was comatose and brain dead when she arrived at the hospital. She had a cut on her head above the right ear, "defense" knife cuts on her fingers, and a one-inch incision above her left ear where the knife entered her skull through the soft spot and penetrated her brain. This stab wound caused her death approximately 48 hours later.

Defendant did not testify at trial but his written and videotaped confessions were introduced by the State. ¹ In both he admitted striking the defenseless woman with the skillet with sufficient force to knock her down and then plunged the butcher knife into her head. Consequently, his claimed error in the admission into evidence of a small hammer that was found by an evidence technician near a piece of the iron skillet need not long detain us. A photograph showing the hammer and piece of skillet had already been received in evidence--without objection. As a physical object found at or near the scene of the crime, and of a type that could have been used to deliver a felling blow, we cannot say the hammer had no relevancy or probative value. See State v. Neal, 591 S.W.2d 178, 180 (Mo.App.1979). Defendant does not demonstrate how or in what manner he was prejudiced by the hammer being received in evidence and we note that the only mention of the hammer in closing arguments was made by defense counsel. In any event, it is beyond dispute that the butcher knife wielded by the defendant was the death weapon. The point is denied.

Defendant next launches a broadside attack on the "Witherspooning" [Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1170, 20 L.Ed.2d 776 (1968) ] of the jury panel in the guilt stage of the trial and further contends that because of the prejudice resulting from such he was entitled to a different jury for the penalty phase of the trial. We considered and rejected identical contentions in State v. Guinan, 665 S.W.2d 325 (Mo. banc 1984). The point is denied.

At the punishment phase of trial, the court gave Instruction No. 20 to the jury for their determination of whether the State proved, beyond a reasonable doubt,

Page 715

that the defendant murdered Janie Tracy for the purpose of receiving money or any other thing of monetary value. The jury initially returned and presented the court with a verdict form which stated "there was no evidence to disprove he entered the house for the reason of obtaining money". The experienced trial judge told the jury the verdict was not in the proper form and requested them to retire and read the instructions. Defense...