State v. Mallett, 68030

• Decision Date: 16 June 1987
• Docket Number: No. 68030,68030
• Parties: STATE of Missouri, Respondent, v. Jerome MALLETT, Appellant.
• Court: Missouri Supreme Court

Page 527

732 S.W.2d 527

STATE of Missouri, Respondent, v. Jerome MALLETT, Appellant.

No. 68030.

Supreme Court of Missouri En Banc.

June 16, 1987.

Dissenting Opinion July 14, 1987

(Blackmar, Judge).

Rehearing Denied July 14, 1987.

Kathleen Murphy Markie, Columbia, for appellant.

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

BILLINGS, Judge.

Defendant Jerome Mallett was convicted of the first degree murder, § 565.020, RSMo 1986, of Missouri State Highway Patrol Trooper James M. Froemsdorf and sentenced to death, the jury finding the following statutory aggravating circumstances: (1) the murder was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind, § 565.032.2(7), RSMo 1986; (2) the murder was committed against a peace officer while engaged in the performance of his official duty, § 565.032.2(8), and (3) the murder was committed by a person who had escaped from the lawful custody of a peace officer, § 565.032.2(9). Affirmed.

Defendant contends: (1) the evidence was insufficient to support his verdict; (2) evidence of crimes he committed in Texas shortly before the murder was erroneously admitted at trial; (3) an instruction on the defense of accident should have been submitted; (4) an instruction on circumstantial evidence should have been submitted; (5) the prosecutor improperly argued his character during the guilt phase; (6) evidence of his character and prior criminal activities was erroneously admitted during the penalty phase; (7) one witness improperly testified as an expert; (8) his videotaped statement was erroneously admitted; (9) Missouri's death penalty is discriminatorily applied; (10) Missouri's death penalty is unconstitutional; (11) his sentence was imposed under the influence of passion and prejudice; and (12) his sentence is disproportionate to sentence imposed in similar cases.

In assessing a sufficiency of the evidence challenge, the evidence, together with all reasonable inferences to be drawn therefrom, is viewed in the light most favorable to the verdict and evidence and inferences contrary to the verdict are ignored. E.g., State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984).

On February 4, 1985, defendant robbed a jewelry store in Plano, Texas. Based upon the robbery victim's identification of defendant as the holdup man, the Plano police obtained a warrant for defendant's arrest. The warrant was placed in the computer system of the National Crime Information Center (N.C.I.C.). The N.C.I.C. is a system that provides law enforcement agencies nationwide access to information on persons wanted for criminal offenses. The last information sent by the Plano police to the N.C.I.C. was that defendant might be returning to Missouri.

Shortly after 5:30 p.m., on March 2, 1985, defendant, driving a white over copper Ford, was pulled over for speeding on Interstate 55 in Perry County by Trooper James Froemsdorf. Before Trooper Froemsdorf approached his vehicle, defendant hid his wallet and identification under the front seat. When Trooper Froemsdorf arrived and asked for his driver's license, defendant replied that he did not have it with him. Defendant told Trooper Froemsdorf that his name was Anthony Mallet. Anthony Mallet is defendant's brother. Trooper Froemsdorf handcuffed defendant and then in a search of the Ford found several items bearing the name "Jerome Mallet," including defendant's wallet containing a Texas driver's license and several pawnshop tickets.

Returning to his patrol car with these items, Trooper Froemsdorf called in to the Highway Patrol radio dispatcher. After running a check on the driver's license, the dispatcher informed Trooper Froemsdorf that defendant was wanted in Texas on four warrants for probation violation and one warrant for aggravated robbery. At 5:40 p.m., Trooper Froemsdorf, in his last radio transmission, told the dispatcher that defendant was in custody, that he needed no assistance, and that the dispatcher could contact him next at the Perry County Sheriff's Office.

At approximately 6:00 p.m., a passing motorist, curious at seeing an apparently unoccupied patrol car with its red lights flashing, stopped to investigate and found Trooper Froemsdorf's body. At 6:15 p.m., a highway patrol trooper also arrived at the scene. The trooper called for medical personnel who subsequently pronounced Trooper Froemsdorf dead.

The inside of Trooper Froemsdorf's patrol car was a shambles, evidencing a struggle. Found in the patrol car were defendant's driver's license and the other identifying items Trooper Froemsdorf had taken from defendant's vehicle, along with a partially filled out speeding ticket for defendant and a handwritten note listing defendant's Texas warrants. Missing from the patrol car was Trooper Froemsdorf's service revolver, a .357 magnum. On the hood of the car investigators later found defendant's palm print.

Around 7:00 p.m. that evening, a St. Francois County deputy sheriff sighted defendant's copper and white Ford and began a pursuit. The chase ended with defendant missing a turn, running up an embankment, and crashing through a fence into a field. Defendant evaded capture by quickly exiting the vehicle and fleeing on foot. On the front floorboard of defendant's car the deputy found Trooper Froemsdorf's service revolver. The weapon contained four spent and two unspent shells. The only fingerprint found on the revolver belonged to defendant. Defendant's fingerprints were also on the door of the Ford.

After fleeing, defendant swam across a river and spent the first night in a car in a nearby garage, where he also stole a jacket and shoes to replace his own wet clothing. Leaving the garage the next day, defendant saw signs of a search and stole away to a barn where he burrowed under some hay. After spending two nights in the barn, defendant attempted to reach a nearby McDonald's for food. Law enforcement officers, who had been conducting an extensive search, spotted defendant and captured him following a brief pursuit. The officers noticed that handcuffs dangled from defendant's left wrist. When the right cuff was placed on defendant's right wrist, it slid halfway down his hand. It was ultimately discovered that defendant had suffered an injury to his right hand as a child which enabled him to compress it to nearly the size of his wrist and slip out of handcuffs. After defendant was resecured, he was taken to a highway patrol station where he waived his Miranda rights and gave a video-taped statement. In the statement defendant admitted shooting Froemsdorf, but claimed it was accidental.

In the investigation of the killing of Trooper Froemsdorf, an autopsy was performed on his body. Large bruises and numerous abrasions were evident on Trooper Froemsdorf's face, primarily on the left side. Under the trooper's left eye was a serrated cut which matched the ratchet on handcuffs used by the highway patrol. Abrasions on the left side of the chin matched the solid portion of the handcuffs. The pathologist testified that this cut and these abrasions were consistent with a blow or blows to the trooper's face with the handcuffs. Such blows, the pathologist continued, would immediately cause the eyes to water and blind a person for a brief period of time.

On the lower left side of the trooper's chest was a 7.7 by 4.0 centimeter abrasion surrounded by a large area of bruising. This wound was inflicted by the impact from short range of a .357 magnum bullet into Trooper Froemsdorf's bulletproof vest. Tests of the bullet causing the wound, which was found imbedded in the vest, indicated that it had been fired from Trooper Froemsdorf's service revolver. The impact of a .357 magnum bullet from short range, the pathologist testified, would knock the breath out of the victim and render him helpless for a short time.

On the right side of Trooper Froemsdorf's neck, about an inch and a half apart, were the entrance wounds of two gunshots. The slug causing the lower wound passed through the victim's trachea and carotid artery and exited out of the left side of the neck. Such a wound would cause heavy bleeding and hamper the victim's breathing. The slug causing the higher wound fractured two vertebrae and severely damaged the spinal cord before also exiting out of the left side of the neck. The effect of this wound was the instantaneous death of Trooper James Froemsdorf.

Both the bullets which pierced the victim's neck left the neck at a higher point than they entered. After exiting the neck, one of the bullets struck the chrome strip at the bottom of the front driver's side window and the other went through the driver's seat and passed out of the car through the left rear door. The combination of the upward angle of the slugs through Trooper Froemsdorf's neck with the slugs' impact points with the car led defendant's firearms expert to conclude Trooper Froemsdorf was leaning downward toward the driver's door and away from the passenger's seat when he was shot. This was the position in which the body was, in fact, found.

Besides the three slugs which hit Trooper Froemsdorf's body, there was alos evidence of a fourth shot which plowed a furrow in the right epaulet of the trooper's uniform shirt and shattered the driver's window of the patrol car. Defendant's firearms expert testified that he believed that this shot that shattered the window was the first one to be fired. In his opinion, the second shot hit the trooper's bullet proof vest and the third and fourth shots went through the trooper's neck. The pathologist agreed that the shot to the vest occurred before the shots through the neck.

Forensic analysis of the powder burn "stippling" on the victim's neck indicated that the muzzle of the murder weapon was from twelve to eighteen inches away from the neck at the time the shots were fired. Tests...