State v. McDonald, No. 64057

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBILLINGS; RENDLEN; HOUSER; BLACKMAR, J., concurs in part and dissents in part in separate opinion filed and concurs in the opinion of HOUSER; WELLIVER; NORWIN D. HOUSER; BLACKMAR
Citation661 S.W.2d 497
PartiesSTATE of Missouri, Respondent, v. Samuel Lee McDONALD, Appellant.
Decision Date22 November 1983
Docket NumberNo. 64057

Page 497

661 S.W.2d 497
STATE of Missouri, Respondent,
v.
Samuel Lee McDONALD, Appellant.
No. 64057.
Supreme Court of Missouri,
En Banc.
Nov. 22, 1983.
Rehearing Denied Dec. 20, 1983.

Page 500

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

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

BILLINGS, Judge.

Defendant Samuel Lee McDonald was jury-tried and convicted of the capital murder of Robert Jordan, an off-duty St. Louis County police officer, during the course of a robbery. The jury further found that the defendant committed the murder "for the purpose of receiving money or any other thing of monetary value by taking [Jordan's] wallet" and fixed his punishment at death. The death sentence was duly imposed. We affirm.

Defendant contends the substantial evidence was insufficient to support his conviction. In ruling this issue, we consider the facts in evidence and all favorable inferences reasonably to be drawn therefrom in the light most favorable to the jury's verdict and disregard all contrary evidence and inferences. State v. Franco, 544 S.W.2d 533 (Mo. banc 1977), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

On the evening of May 16, 1981, Robert Jordan, accompanied by his 11-year-old daughter, Rochelle, went to the Forest Package Liquor Store to purchase snacks for his family for the weekend. He was wearing civilian clothes and in accordance with departmental policy was carrying his police revolver, concealed. Father and daughter arrived at the store about 11:00 p.m., and after making purchases they started out of the store.

Defendant and Jacqueline Blue had been driving around in a car for several hours and at around 11:00 p.m., defendant parked the vehicle a short distance away from the Forest Package Liquor Store. Defendant told his companion he would be right back and shortly thereafter was seen standing on the street corner next to the liquor store.

As Jordan and his daughter emerged from the store with their groceries, defendant drew a pistol and accosted Jordan, firing one or more shots in the process. One of these shots wounded the officer in his chest and left arm and he fell to his knees. As the defendant stood with his pistol over the kneeling Jordan, Jordan handed him his wallet which contained his police badge. After receiving the wallet defendant began to turn away and then turned back and shot the officer again. The second bullet entered the left side of Jordan's chest, penetrated his heart and lodged in his stomach wall. As defendant attempted to flee, the mortally-wounded officer drew his service revolver and fired several shots at defendant, striking him three times. Jordan stumbled back into the store and asked that the police be called. He died before or shortly after an ambulance arrived.

Rochelle Jordan ran back into the store after her father was shot the first time and she testified at trial as an eyewitness to her father's execution. The robbery and shooting was also described at trial by two additional identification eyewitnesses, one viewing events from inside the liquor store and the other from across the street.

Defendant crawled back to the car and instructed Blue to drive him to the hospital. En route defendant changed his mind and told Blue to take him to a friend's house. Blue drove to the house and found no one home. Defendant removed the shirt he was wearing and stuffed it down a sewer drain. After unsuccessfully attempting to locate friends for medical aid, defendant had Blue drive him to the Veteran's Hospital. The parked car was later searched by police with Blue's consent. Jordan's wallet with the police badge was found in the rear seat. Defendant's clothing was found in the trunk, where he had told Blue to put it. The pocket of his black leather jacket contained a gun with four fired shell casings. A blood-soaked shirt was retrieved from the sewer where Blue said it had been discarded.

From the foregoing, the jury could find, beyond a reasonable doubt, that defendant killed Jordan while engaged in robbing him.

Page 501

Defendant further argues that his conviction of capital murder cannot stand because the evidence does not establish the essential element of "deliberation." We disagree.

A deliberate act is one performed in a cool and deliberate state of mind. State v. LaRette, 648 S.W.2d 96, 102 (Mo. banc 1983); State v. Craig, 642 S.W.2d 98, 101-02 (Mo. banc 1982); State v. Strickland, 609 S.W.2d 392, 394 (Mo. banc 1980). No particular time is required to permit a finding of deliberation. The time may be very brief. State v. Wood, 596 S.W.2d 394, 400 (Mo. banc 1980); State v. Hatfield, 465 S.W.2d 468, 471 (Mo.1971).

On the record before us, the jury could reasonably find defendant intended to take the life of Officer Jordan and acted with the necessary premeditation and deliberation. Defendant was armed with a gun and seen standing near the liquor store minutes prior to the fatal shooting. The jury could reasonably find the entire course of defendant's conduct a product of deliberation. Further, the fatal shot was not fired immediately after Jordan surrendered his wallet. Defendant started to turn away, then turned back, and inflicted the mortal wound. The requisite deliberation could have occurred at this time and the jury could have so found.

The defendant raises numerous points on appeal, some related to the guilty-innocence phase of the trial, and some applying only to the sentence.

Defendant complains that the trial court erred in denying him a mental examination pursuant to § 552.030, RSMo (Cum.Supp.1982).

Subsection 2 of § 552.030 provides that a defendant is not entitled to an examination unless he either files a guilty plea of "not guilty by reason of mental disease or defect excluding responsibility," or unless he files a written notice of his purpose to rely on such defense in a timely manner. Defendant's theory was that he was entitled to a confidential psychiatric examination before deciding whether or not to invoke a defense of mental disease or defect. Defendant did not enter such a plea or give the statutory notice. The trial court cannot be faulted for following the statute and denying the requested examination. State v. Ingram, 607 S.W.2d 438, 440-41 (Mo.1980); State ex rel. Jordon v. Mehan, 597 S.W.2d 724 (Mo.App.1980).

Defendant alleges several claims of trial error. In ruling on these points we take account of the very strong evidence that the defendant was guilty of the homicide.

During voir dire the trial judge asked members of the victim's family to stand so that the jury could recognize them and avoid contact with them. We find no prejudice in this. When the defense counsel later protested this action, the judge made a similar request of the defendant's family. These actions were properly within the duty and discretion of the trial court to take appropriate steps to prevent improper external influences upon jurors and potential jurors.

Defendant also alleges prejudicial error in allowing the victim's widow, Emma Jordan, to testify and to remain in the courtroom thereafter. She explained her husband's purpose in going to the store and for his carrying his concealed service revolver and identified her husband's keys, gun, wallet and badge. She then testified about her trip to the store after the shooting. Mrs. Jordan's testimony was relevant and there is no evidence in the record that Mrs. Jordan's continued presence at trial prejudiced the defendant. The point is without merit.

Defendant's complaint of prejudice in the trial court judge using his own judgment in checking on a disturbance and insisting that defense counsel not set up exhibits blocking his view of the defendant is equally without merit. Nor was there any prejudice in the court's inquiring as to whether a defense witness called to impeach Jacqueline Blue on account of her alleged drug addiction and treatment had violated confidences.

Page 502

Defendant claims the trial court improperly allowed Jacqueline Blue's credibility to be bolstered by allowing reference to her prior consistent statements. Blue's testimony was strongly corroborated by other evidence at trial and proof of defendant's guilt was overwhelming. We find no prejudicial error.

We have carefully reviewed defendant's averments of improper argument by the prosecutor in the guilt phase of the trial. We note that (1) no objection was made to the complained of argument and (2) the prosecutor's remarks were in retaliation to defendant's argument. We find no error, plain or otherwise, and deny the point.

Defendant avers that the death penalty should be set aside on the basis that the particular aggravating circumstance was not authorized. This conclusion is arrived at by a narrow and restrictive construction of § 565.012.2(4) which allows the death penalty upon a finding that the defendant committed the capital murder "for the purpose of receiving money or any other thing of monetary value."

Defendant argues that a murder committed in the course of a robbery can never meet the requisite statutory language of § 565.012.2(4) because the term "receive" is not synonymous with "taking" in that the former requires a two-party transaction. This analysis is based upon prior cases involving the crime of receiving stolen property. The conclusion reached by defendant in comparing the meaning of "receiving" in two unrelated statutory contexts is misleading.

The meaning of "receiving" in the context of a receiving stolen goods statute has been defined in light of the purpose of the statute and its common sense relation to larceny statutes. One object in punishing a person as a receiver of stolen goods is to prevent the real thief from disposing of the goods and thereby lessening the chances of detection. If he is the principal actor in the theft, the actual captor of the property, it is illogical and...

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106 practice notes
  • State v. Mallett, No. 68030
    • United States
    • United States State Supreme Court of Missouri
    • 16 de junho de 1987
    ...v. Roberts, 709 S.W.2d 857, 862-63 (Mo. banc), cert. denied, 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378 (1986); and State v. McDonald, 661 S.W.2d 497, 500-501 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985), for somewhat similar facts which were found to......
  • State v. Richardson, No. 76059
    • United States
    • United States State Supreme Court of Missouri
    • 28 de maio de 1996
    ...to clemency and legislative intervention in reducing sentences have been held to be improper in Missouri, see State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985); State v. Lewis, 443 S.W.2d 186, 189-90 (Mo.1969), 6 there......
  • State v. Feltrop, No. 70896
    • United States
    • United States State Supreme Court of Missouri
    • 9 de janeiro de 1991
    ...penalty phase of a capital murder case both parties should be given wide latitude in arguing the matter of punishment. State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985), citing Gregg v. Georgia, 428 U.S. 153, 203-04, 9......
  • Beets v. State, No. 69583
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 12 de novembro de 1987
    ...to Texas, a specific aggravating element statute separately specifying robbery. The various statutes are compiled in State v. McDonald, 661 S.W.2d 497, 503 The Texas Government Code provides in Section 311.011(a) that when a word or phrase is not statutorily defined, "[it] shall be read in ......
  • Request a trial to view additional results
106 cases
  • State v. Mallett, No. 68030
    • United States
    • United States State Supreme Court of Missouri
    • 16 de junho de 1987
    ...v. Roberts, 709 S.W.2d 857, 862-63 (Mo. banc), cert. denied, 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378 (1986); and State v. McDonald, 661 S.W.2d 497, 500-501 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985), for somewhat similar facts which were found to......
  • State v. Richardson, No. 76059
    • United States
    • United States State Supreme Court of Missouri
    • 28 de maio de 1996
    ...to clemency and legislative intervention in reducing sentences have been held to be improper in Missouri, see State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985); State v. Lewis, 443 S.W.2d 186, 189-90 (Mo.1969), 6 there......
  • State v. Feltrop, No. 70896
    • United States
    • United States State Supreme Court of Missouri
    • 9 de janeiro de 1991
    ...penalty phase of a capital murder case both parties should be given wide latitude in arguing the matter of punishment. State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985), citing Gregg v. Georgia, 428 U.S. 153, 203-04, 9......
  • Beets v. State, No. 69583
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 12 de novembro de 1987
    ...to Texas, a specific aggravating element statute separately specifying robbery. The various statutes are compiled in State v. McDonald, 661 S.W.2d 497, 503 The Texas Government Code provides in Section 311.011(a) that when a word or phrase is not statutorily defined, "[it] shall be read in ......
  • Request a trial to view additional results

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