State v. Malone

• Decision Date: 07 August 1985
• Docket Number: No. 65974,65974
• Citation: 694 S.W.2d 723
• Parties: STATE of Missouri, Respondent, v. Kelvin Shelby MALONE, Appellant.
• Court: Missouri Supreme Court

Page 723

694 S.W.2d 723

STATE of Missouri, Respondent, v. Kelvin Shelby MALONE, Appellant.

No. 65974.

Supreme Court of Missouri En Banc.

Aug. 7, 1985.

Rehearing Denied Sept. 10, 1985.

Robert J. Maurer, Office of the Public Defender, Clayton, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Chief Judge.

Kelvin Shelby Malone was convicted by a jury of capital murder, section 565.001, RSMo 1978, and sentenced to death, sections 565.008 and 565.012, RSMo 1978. Judgment was rendered accordingly. He contends the trial court erred in overruling a motion to dismiss based on the Uniform Mandatory Disposition of Detainers Law, section 217.450, RSMo (Cum.Supp.1984); permitting death qualification of the jury panel; admitting into evidence a bullet without establishing chain of custody; informing the jury of sentences received for prior offenses; and, submitting certain aggravating circumstances unsupported by the evidence. In addition to the review for error, the Court will conduct the sentence review required by section 565.014, RSMo 1978. Affirmed.

The evidence supports defendant's conviction for the murder of William Parr, a 62-year-old cab driver. Parr's body was discovered in Entrance Park, in the City of Berkeley, in the early morning hours of March 18, 1981. He was lying face down with his legs crossed, on top of a road atlas, magazines and trip tickets. There was blood coming from his nose and right ear. Arrangements were made to transport Parr to Christian Northeast Hospital, where he was pronounced dead.

Defendant arrived in St. Louis from Los Angeles by bus at the Greyhound Bus Station in downtown St. Louis on March 18, 1981. He had with him a suitcase, .25 caliber Raven automatic pistol, and an A.G. Galesi .25 caliber pistol. During a previous trial in California, defendant stated he hitchhiked from the bus station to Michael Crenshaw's house in Berkeley because he did not have cab fare. He later gave the Raven to Crenshaw and kept the Galesi.

Richard Elder was a Yellow Cab driver who worked with William Parr. Elder testified that around 11:45 p.m. on March 17, 1981, Parr was the cab driver in line to get the first order out from the Greyhound Bus Terminal. At approximately 1:00 a.m. on March 18, an order came for Parr to pick up a package at First National Bank at 510 Locust and take it to League Data at 1150 Hanley Industrial Drive. The bank facility was about two-and-one-half blocks from the bus station. This sort of delivery was top priority, and drivers were instructed by the company to complete them promptly. Parr picked up the delivery from First National Bank, but never reached his destination.

About four minutes after Parr left for his delivery, Elder passed by the First National Bank building on his way to pick up an order. He observed Parr's cab parked out front with the dome light on. At about 6th and Locust, Elder observed an individual with a suitcase attempting to hail a cab, whom he later identified as defendant. On his way home, Elder heard the dispatcher calling Parr's cab number several times without answer.

Daniel Ward, a computer room supervisor at First National, left the bank at 1:00 a.m. and saw a Yellow Cab parked out front. He testified that a black male with a suitcase was sitting in the back seat of the cab.

Police later discovered an abandoned Yellow Cab at 6105 Avila in the City of Berkeley. A resident of the neighborhood reported seeing a Yellow Cab drive down Fay Avenue and turn on Avila about 1:20 a.m., March 18. Emanuel Bego lived with the Crenshaw family at 8271 Fay. About 1:30 a.m., there was a knock at the door and Michael Crenshaw answered it. Bego did not see the visitor, but he heard Michael say "Kelvin." Defendant and Crenshaw left on March 18 to return to California in Crenshaw's vehicle. After they had gone, Bego found a Greyhound bus ticket in the basement, later identified as one from Los Angeles to St. Louis, date March 15. A night operations manager for Greyhound Bus testified that a timetable used in the commercial bus industry listed a bus as due to arrive in St. Louis from Los Angeles at 12:40 a.m. on March 18, 1981.

On March 24, 1981, officers of the San Jose, California, police found defendant and Michael Crenshaw asleep in a Mercury Capri. The two refused to produce identification when asked, and a high speed chase ensued. The officers eventually apprehended the pair and recovered a loaded .25 caliber Raven automatic pistol and a loaded A.G. Galesi .25 caliber pistol. The officers also found a small suitcase in the car.

A California ballistics examiner fired three test shots from the Galesi and mailed the projectiles to Al Hunt of the Berkeley Police Department. Officer Richard Staples was present at the hospital when the body of Parr arrived and observed the autopsy performed by Dr. Joseph Sapala. Officer Staples received a .25 caliber bullet that was taken from the victim's brain, and placed the bullet in a container. William Crosswhite, firearms and toolmark examiner for the St. Louis County Police Department, compared this bullet with the test bullets received from Hunt; the results were inconclusive. John H. Dillon, a Special Agent for the FBI and a ballistics examiner, compared the same bullets with the aid of a comparison microscope. He concluded that the test samples and evidence sample had been fired from the same weapon.

Defendant presented no evidence. In the sentencing phase, the state introduced evidence that defendant had been previously convicted of second degree robbery, for which he received seven years imprisonment; first degree murder and robbery, for which he received life imprisonment without parole and seven years, consecutive; and first degree murder, robbery and kidnapping, for which he was sentenced to death. The jury was instructed upon and certified the following aggravating circumstances: (1) the offense was committed by a person with a substantial history of serious assaultive criminal convictions; (2) the offender committed the offense of capital murder for himself or another for the purpose of receiving money or any other thing of monetary value; (3) the offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind; and, (4) the murder was committed to prevent a witness from testifying.

On March 26, 1984, the day of trial, defendant moved to dismiss the cause, contending the trial court lacked jurisdiction because the State failed to bring him to trial within 180 days as required by the Uniform Mandatory Disposition of Detainers Law, section 217.450 et seq., RSMo (Cum.Supp.1984). In denying the motion, Judge Voorhees referred to an earlier ruling by Judge Drumm extending the period of limitation to March 26. No error appears in the decision to honor a ruling from another division of the circuit court, the only question being whether the original ruling properly extended the time for trial.

The 180-day limitation is not absolute. Trial is to commence within 180 days of receipt of notice by the court and the prosecuting attorney or "within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the inmate or his counsel being present...." § 217.460, RSMo (Cum.Supp.1984). See § 217.490, art. III, § 1, RSMo (Cum.Supp.1984). The prosecuting attorney and the circuit court received notice September 26, 1983. Within the period of limitation, the State requested a continuance under the statute. This request was before the court when it held a hearing on March 23, 1984. Defense counsel was present. Judge Drumm stated that the next day, a Saturday, was the 180th day; that it was contrary to the established procedures and policies of the court to begin trial on a Saturday; that no jurors were available on a Saturday; that the law prohibited holding court on Sunday; and, that the first day of trial in this case would normally fall on Monday, March 26, 1984. The court concluded that there was good cause shown for extending the 180-day period by two days to March 26. Appellant now complains of a denial of a hearing on the merits of this claim, but made no record during the hearing held to support his contention that the action taken violated the statute. This Court cannot say the extension granted was unreasonable or unnecessary.

Appellant, citing Grigsby v. Mabry, 758 F.2d 226 (8th Cir. en banc 1985), petition for cert. filed sub nom. McCree v. Lockhart, 460 U.S. 1088, 103 S.Ct. 1782, 76 L.Ed.2d 352, challenges death qualification of his jury panel, held unconstitutional in Grigsby, and urges the Court to reconsider its past decisions upholding the practice in view of the holding in Grigsby.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held that the state could not remove for cause any prospective juror with qualms about the death penalty. The Court did not decide whether the State could exclude from service in a capital case jurors who state they could never vote to impose the death penalty. In Lockett v. Ohio, the Court upheld the exclusion of jurors under Witherspoon guidelines, noting that the persons excluded clearly indicated an inability to "take the oath." 438 U.S. 586, 595-596, 98 S.Ct. 2954, 2959-2960, 57 L.Ed.2d 973 (1978). The Court found no support in its prior cases for the view "that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." Id. at 596-597, 98 S.Ct. at 2960. The Court in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), expressly recognized the state's valid interest in obtaining jurors who are able to follow the instructions of the court and obey their oaths. Jurors unable to accept the death penalty as a punishment...