State v. Leisure, 69470

Citation749 S.W.2d 366
Decision Date19 April 1988
Docket NumberNo. 69470,69470
PartiesSTATE of Missouri, Respondent, v. David LEISURE, Appellant.
CourtMissouri Supreme Court

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

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.


A jury convicted David Leisure of capital murder in the bombing death of James Michaels, Sr., and fixed his punishment at death. On direct appeal to this Court, Mo. Const. art. V., § 3, appellant assigns numerous points of error which deal primarily with the jury selection process, the venue of the trial, the state's cross-examination of appellant's psychological witnesses, reference to other crimes by the state's informants, and evidence and instructions in the penalty phase. The judgment of the trial court as to appellant's guilt and the sentence of death is affirmed.


According to the record, the murder in question was the product of simultaneous power struggles within an organized crime entity described as being composed of persons of Syrian and Lebanese descent within St. Louis and Local 110 of the Laborers Union, which was headed by the victim, James A. Michaels, Sr.; Michaels was the reputed head of "the Syrians." The record further reveals that a second, competing organized crime unit existed in St. Louis known as "the Italians," headed by Anthony Giordano.

In early 1977, Ray Massud promised Anthony Leisure, appellant's cousin, that he would succeed Massud as Local 110's business manager. While in the hospital with a terminal illness, Massud changed his mind, asking Anthony Leisure to accept the job of assistant business manager and to allow John Massud, his son, to serve as business manager of the union. Anthony Leisure agreed. On June 30, 1977, after Ray Massud's death, the appointments were made to the Union positions in accordance with the agreement. Under the "terms" of the agreement, Leisure would control the hiring and firing of union officers; John Massud would operate the union office.

John Massud began to hire Union officers without consulting Anthony Leisure. Moreover, Massud hired Vince Giordano, nephew of Anthony Giordano, as a union organizer. Mike Trupiano, another nephew of Anthony Giordano, became Union president in May of 1979, with Massud's blessing and, again, without Anthony Leisure's consent.

Angered by Massud's breach of their agreement and his resulting loss of power within the union, Anthony Leisure met with his brother Paul, Ronald Broderick, John Ramo, Charles Loewe and appellant to consider whether John Massud should be murdered for violating the agreement. The group reached no decision. The Leisures' feared Massud's political ties in St. Louis City politics.

Later, Massud complaining that the union payroll was too high, announced that he planned to fire Broderick. Broderick was the only union officer Anthony Leisure had appointed. The Leisures, including appellant, Broderick, Ramo and a Fred Prator, convened another meeting. Again, the subject was the preservation of Anthony's power within the union. The group again thought it unwise to kill Massud for the reasons earlier stated; nor did they wish to start a war with the Italians by killing Trupiano. They selected James Michaels, Sr., as their victim. Michaels' death would enhance the Leisures' position among the Syrians. It would also send a strong message to the union leadership. The Leisures also believed that Michaels had protected the murderer of appellant's older brother, Richard.

After an unsuccessful attempt to shotgun Michaels at a St. Louis restaurant, appellant and his coconspirators decided to bomb Michaels' car. On September 4, 1980, appellant and Ramo stole a car that matched the make and model of Michaels' car, and practiced planting a bomb. Appellant followed Michaels around the city to learn of his habitual movements.

On September 17, 1980, appellant spotted Michaels' car in the parking lot of St. Raymond's Catholic Church. The participants in the plan to kill Michaels moved into action. Anthony Leisure, Broderick and Ramo picked up a van belonging to Broderick's son. They drove the van to another location, where they retreived the bomb and joined appellant. Prepared now to kill, they drove to St. Raymond's Church, parking the van next to the victim's car. Appellant slid under Michaels' car and attached the bomb; the quartet drove the van to a strategic place where they could see Michaels return to his car. The victim came out of the church with his grandson, James Michaels, III, a Local 110 union organizer. The senior Michaels entered the car and began talking with his grandson through an open window. Appellant suggested that the bomb be detonated at that instant in order to kill both Michaels. Anthony Leisure convinced appellant otherwise.

The van followed as the elder Michaels drove away from the church. Anthony tried to detonate the bomb several times without success; the radio controlled detonating device refused to work. For a moment, the murderers lost Michaels but saw his car on I-55. Giving chase, they caught their victim. Anthony again threw the switch on the detonating device; the bomb did not go off. Frustrated, Anthony threw the switch again and again until finally the bomb exploded. The victim's upper torso was ripped from the rest of his body and thrown from the car. It struck the windshield of the vehicle following.

The van immediately left the highway and headed toward Illinois. Breaking up the remote control detonating devices, the murderers threw pieces out as the van sped along. In Illinois, they washed the van several times. Returning to Missouri, they stopped at an automobile supply store where appellant bought new windshield wiper blades in an attempt to remove all traces of the explosion from the van. A stop at a drug store brought rubbing alcohol and shaving lotions, which were used to remove the odor of explosives from the hands of the killers.

Approximately a week after the murder, Paul Leisure met with John Vitale, the new leader of the Italians. (Anthony Giordano had died.) Leisure and Vitale agreed that the Syrians would control the Local 110. Two relatives of Michaels lost their union jobs immediately after the murder.

The jury found appellant guilty of first-degree murder. At the punishment phase of the trial, the jury found the following statutory aggravating circumstances: (1) that appellant knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person, Section 565.032.2(3), RSMo 1986; (2) that appellant was an agent or employee of Paul Leisure and at his direction murdered the victim, Section 565.032.2(6), RSMo 1986; (3) the murder of the victim involved depravity of mind and was therefore outrageously and wantonly vile, horrible, and inhuman. Section 565.032.2(7), RSMo 1986. The jury also found appellant's Rackateer Influenced and Corrupt Organizations Act (RICO) conviction as a nonstatutory aggravating circumstance. The jury fixed appellant's punishment at death.

On appeal, appellant does not challenge the sufficiency of the evidence supporting the conviction.


Appellant first raises several points of error focusing on the jury selection process.


Appellant initially contends that the trial court erred in denying his challenge for cause of venireman Zewiski. Appellant claims Zewiski had formed an opinion from rumor and publicly regarding appellant's guilt.

We begin with the familiar adage that "in determining the qualifications of a prospective juror, the trial court has very wide discretion, and the court's ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion." State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978).

The relevant portion of voir dire follows:

MR. ROGERS [The prosecutor]: You have formed an opinion; is that correct?


MR. ROGERS: And that opinion you formed, can you set that opinion aside if you were a juror in this case and base your decision solely on the testimony?

VENIREMAN ZEWISKI: No, I don't think I'd make a good juror on this particular case.

MR. ROGERS: Well, is there something about this particular case that prevents you from being a good juror, something particular?


MR. ROGERS: Would you rather get specific about that up at the bench, or do you think you can keep it pretty general?


MR. ROGERS: Do you know any of the parties involved?


MR. ROGERS: Okay. Is there something about the situation that existed that led to this event that caused you any kind of fear?

VENIREMAN ZEWISKI: No. I just formed an opinion, and that--

MR. ROGERS: Well, now wait. You formed an opinion. Obviously you formed that opinion before you came here today; is that correct?

VENIREMAN ZEWISKI: Oh, I didn't know about this today. So--

MR. ROGERS: Now, that opinion you formed was based on probably a lot of things. Radio, television, and maybe even discussing things with friends of yours?


MR. ROGERS: Okay. And do any of your friends have any access to information about the case other than the radio and TV?


MR. ROGERS: Some. Okay. Do you have any friends that are related or participated in judicial enforcement, law enforcement?


MR. ROGERS: Do you have any friends that know people on either side of this matter?


MR. ROGERS: Okay. Now, those individuals, I take it that you respect them and the fact that they're friends of yours.


MR. ROGERS: And you would expect that friends of yours would talk to you and tell you what ...

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