State v. Laws

• Decision Date: 22 November 1983
• Docket Number: No. 64421,64421
• Citation: 661 S.W.2d 526
• Parties: STATE of Missouri, Respondent, v. Leonard Marvin LAWS, Appellant.
• Court: Missouri Supreme Court

Page 526

661 S.W.2d 526

STATE of Missouri, Respondent, v. Leonard Marvin LAWS, Appellant.

No. 64421.

Supreme Court of Missouri En Banc.

Nov. 22, 1983.

Rehearing Denied Dec. 20, 1983.

Robert C. Babione, St. Louis, for appellant.

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

BLACKMAR, Judge.

A jury found the defendant guilty of two counts of capital murder and, having expressly found four statutory aggravating circumstances, assessed the death penalty. We affirm the conviction and, after exercising the statutory review mandated by § 565.014, RSMo 1978, sustain the death sentence.

The state relied on the eyewitness testimony of Norman Gilmore, who was a participant in the criminal acts charged but bargained for a 15-year sentence in return for his testimony against his brother George ¹ and the defendant. Corroboration was found in admissions by George made to friends and relatives, adopted by the defendant through word and gesture. The defendant does not challenge the sufficiency of the evidence, and so a relatively brief statement of the sordid details of the crime will suffice.

The defendant, in October of 1980, was living in a two-room house trailer along with the Gilmore brothers, George's wife, a sister of the Gilmores, and eleven children. None of the adults was employed, and the group apparently subsisted on one of the women's ADC payments and food stamps. George announced to the adults that he knew an easier way of making money than working because old people did not trust banks and kept large amounts of money in their homes where they would be easy robbery victims. He then suggested that the victims could be killed so that they could not identify the robbers.

The defendant and Norman, far from objecting, indicated willingness to participate in George's proposed enterprise. The three had made a purchase of shotguns and a rifle on October 8, 1980, and the shotguns were later sawed off. Very early in the morning of October 29 the three headed to the home of Clarence and Lottie Williams, whom the Gilmores had known through an uncle. The defendant was carrying the rifle and the brothers the shotguns. The defendant cut the telephone line, and the three then knocked on the door. The Williams first came out and were ordered back into the house, where the defendant assisted in tying them up in chairs. Defendant threatened to cut their fingers off if they did not tell where their money was concealed. They complied. The robbers then ransacked the house. The Williams were then untied and taken into the bedroom. The defendant suggested that he would hit them in the head with a baseball bat but George told him to go outside and see whether gunshots could be heard. George then shot Lottie once and Clarence twice, killing them. The criminals carried out their loot, loading it into the defendant's and the victims' cars. They next poured oil on the floor and the defendant ignited the oil, starting a fire which substantially destroyed the house. The three then returned to the house trailer with the loot, some of which was left there and identified at trial.

At a later time it was suggested that Norman was talking too much, and the defendant said that he would have to be disposed of, "brother or no brother." George and the defendant expounded rather freely to friends and relations about what they had done, with George doing most of the talking while the defendant was present and manifesting agreement. Two of the hearers, out of fear, reported to the police and aided in setting up George and the defendant for a police ambush on January 1, 1981, and they were apprehended following a chase.

1. The Guilt Phase

When the defendant was arrested he was advised of his Miranda rights and presented with a written waiver form. He initialed the enumerated rights but did not sign the waiver. The attending officer testified that the defendant "indicated that he knew that he was going to die for what he had done but he was going to make me work for it." Objection was taken and preserved, and the defendant now argues that the officer's testimony contained an improper revelation that the defendant had elected to exercise his privilege against self-incrimination.

We do not agree with this contention. The defendant was properly alerted as to his rights regarding statements to the police and willingly made a statement strongly probative of his guilt. He knew, after the warning, that he spoke at his own risk. The statement was much more than a mere claim of privilege, and the jury should not be denied the benefit of probative evidence simply because the defendant indicated awareness of his right to remain silent. ² The totality of the evidence against the defendant, furthermore, is very strong, with admissions and the finding of the loot providing corroboration for the testimony of the very depraved eyewitness.

The defendant, in a pro se brief, challenges the "death qualification" of the jury, pursuant to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). It is first suggested that a jury from which all persons who affirm that they could never vote for a death sentence have been removed is "prosecution prone," and incapable of rendering a proper verdict on any phase of the case. This contention has been expressly rejected. State v. Stokes, 638 S.W.2d 715, 722 (Mo. banc 1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1263, 75 L.Ed.2d 488 (1983); State v. Mercer, 618 S.W.2d 1, 8 (Mo. banc 1981), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981).

The defendant also argues that venireman Barfield was improperly excused for cause, suggesting that he said that he could consider death in "some of the very worst [cases] in our history." His actual answer was that he could not consider the death sentence. This answer was sufficient for excuse for cause, especially in the absence of an express objection. ³ See State v. Battle, 661 S.W.2d 487 (Mo. banc 1983).

The defendant next complains of the giving of MAI-CR2d 3.52 at the conclusion of the evidence, as a part of the Court's general charge. ⁴ Norman Gilmore was the only witness who was impeached by prior inconsistent statements. He testified at trial that the plan from its inception contemplated the killing of the victims so that they would not identify the criminals, and the defense showed that, when his guilty plea was received, he indicated that the killings had been an afterthought. The impeaching testimony went in without objection or request for limiting instruction. The defendant now argues that it became available as evidence in the case for all purposes, and that the giving of 3.52 deprived the defendant of the right to have the inconsistent statements considered as substantive evidence.

The Attorney General represents that the instruction was requested by defense counsel, but the record does not show this. Counsel, of course, are responsible for seeing that the trial proceedings are recorded accurately, and that the instructions show which side requested them. In the absence of an appropriate record we can only assume that the court gave the instruction on its own motion. So considered, we perceive no error and no prejudice.

We are not prepared to accept the proposition that the court erred in giving the limiting instruction at a later time, simply because it was not requested or given at the time the impeaching evidence was offered. The limitation was as logical at the conclusion of the case as at any other time. ⁵ The court might well have refused a belated request, but should not be held in error for giving a correct instruction. The defendant did not acquire a right to have the evidence considered beyond its proper purpose simply because there had been no contemporaneous attempt at limitation.

There is, furthermore, no discernable prejudice from the giving of the instruction. The defendant had no burden of establishing any fact. The prosecution, rather, had to persuade the jury that Norman's testimony was worthy of belief. If the jury chose to disbelieve or discredit Norman because he had said something different on a previous occasion, then the showing of the inconsistent statement would have had its effect, whether considered as impeaching evidence or substantive evidence. The jury apparently accepted Norman's trial testimony. It strains the imagination to think that its view would have been different if 3.52 had not been given.

The defendant next argues that the jury should have been instructed on "conspiracy to commit murder" as a lesser included offense. The point is not well taken. An offense is not lesser and included if it contains any element which is not a part of the greater offense. An essential element of conspiracy is agreement. ⁶ Agreement is no part of the substantive offense of capital murder, even when the offense is committed by several persons in collaboration. An instruction on conspiracy, far from being required, would have been absolutely improper because it would have permitted the conviction of the defendant for an offense not charged.

The next complaint has to do with the prosecutor's argument about "instructing down," in which he said:

Because [the court] instructs down does not mean that he believes this any more than the other ones....

Objection was promptly made, and the court responded as follows:

"Well, I will sustain the objection to the way you phrased that, what the court may or may not believe, and instruct the jury to disregard that portion."

There was no motion for mistrial. The court granted the only relief asked for. The remark, furthermore, was not of such consequence as to impede the jury's proper consideration of the case.

Other complaints are made about the closing arguments, at both phases of the trial. No objections were taken to these. They are not of sufficient gravity to support a claim of plain error, or as to impose on the...