State v. Mercer

Decision Date11 May 1981
Docket NumberNo. 61797,61797
PartiesSTATE of Missouri, Plaintiff-Respondent, v. George MERCER, Defendant-Appellant.
CourtMissouri Supreme Court

Cenobio Lozano, Jr., Harrisonville, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HIGGINS, Judge.

George "Tiny" Mercer was convicted by a jury of capital murder, § 565.001, RSMo 1978; the jury fixed his punishment at death, §§ 565.008 and 565.012, RSMo 1978. Judgment was rendered accordingly. He charges errors to the excuse for cause of prospective jurors who voiced objections to consideration of the death penalty; the prosecuting attorney's reference in opening statement and a stipulation concerning a prior accusation of rape of another victim by defendant; and the cross-examination of defendant with respect to previously excluded evidence. In addition to the review for error, the Court will review the sentence as mandated by § 565.014, RSMo 1978. Affirmed.

I.

The evidence supports defendant's conviction for the murder of Karen Keeton, a 22-year-old white female, in the early morning hours of August 31, 1978. It established that defendant, a 34-year-old white male, was drinking with friends at the Blue Seven Lounge in Grandview, Missouri, the evening before. Karen was working there as a waitress. During the evening, defendant made the comment that he would like to take her to bed. Steven Gardner, a friend of defendant who was acquainted with Karen, went up to the bar to talk to her. He returned a short time later and said he and Karen were going to breakfast and would go to defendant's house afterward. Defendant left with David Gee, another friend, and went to defendant's home in Belton, Missouri, arriving there around 12:30 a. m. John Campbell was at the house babysitting with defendant's ten-year-old daughter. A short time later Gardner and Karen Keeton arrived.

After visiting for some time defendant picked up a sawed-off double-barrelled shotgun, opened it to show the shells, walked over to Karen, tapped her on the head with the gun, and told her to "get her ass upstairs." When she hesitated he grabbed her and pushed her to the stairway. She yelled for Gardner to help. He responded, "Happy Birthday, Tiny," then turned to the others and said, "Seconds." Karen's dress was tossed downstairs with defendant telling Gardner to "put these clothes where they go, you know where they go." Gardner put the clothes in a closet and pocketed the money from her purse.

Defendant later came downstairs; he was naked and had an erection. Gardner went upstairs. Defendant drank beer for awhile Defendant started upstairs again as Gardner was leaving. He asked Gardner what he wanted done with Karen and Gardner replied, "Kill the bitch." Defendant said, "Okay, brother." Gardner asked if he would need any help; defendant said no, he would get rid of the body where it would not be found. Gardner and Gee left, defendant went upstairs, and Campbell went to sleep downstairs.

showered and returned to the table to dry himself at which time he remarked what "a good piece of ass" she was and that he was going to go back and "fuck her in the butt." Several minutes later, Gardner yelled for David Gee to come upstairs. Gee, followed by defendant and John Campbell, complied. Upstairs, defendant told Karen, who was lying naked on the bed, to undress Gee and "start sucking David Gee's dick." She performed as directed. After Gee answered, "Pretty good", to defendant's question about her performance, defendant said, "You leaky cunt, you'd better do it better." When asked how she was doing now, Gee answered, "Better now." Defendant, Gardner and Campbell returned downstairs. At this time, Karen stopped what she was doing, and Gee put his clothes on. Karen asked what was going to happen to her; Gee attempted to reassure her. When Gee returned downstairs, defendant told Campbell to get upstairs so they would all be in it together. Campbell proceeded upstairs and found Karen unclothed. She cried, and Campbell talked with her, trying to console her. He too returned downstairs.

Campbell was suddenly awakened by defendant calling his name from upstairs. He responded and found defendant straddling Karen's body with his hands on her throat. Defendant screamed at Campbell to take her pulse. Campbell grabbed the arm of Karen's seemingly lifeless body and found a faint pulse. At the time he told defendant this, he could smell human waste which was all over the bed. Defendant, "hollered", struck the left side of Karen's head, and said, "Die you bitch ... This is a leaky cunt. Die." He continued strangling her, and again screamed at Campbell to take her pulse. Campbell found no pulse. When Campbell reported this, defendant got off the bed, grabbed Karen's legs, and pulled her off the bed. Defendant took the sheets and blanket to the washing machine and told Campbell to wipe the waste off the floor. Defendant came back and told Campbell to get his truck and put the tailgate down so he could put Karen in it. After Campbell complied, defendant brought the body down and put it in the truck. Campbell and defendant climbed in the truck and Campbell started driving at defendant's direction. Finally defendant had Campbell stop. Defendant got out and dumped the body over a fence into a field. When he returned he told Campbell, "Now, if I'd killed that leaky cunt 17-year-old like I did her ... I wouldn't have been on any rape charges and things I'm on right now." At that time, defendant had a rape charge pending against him filed by a 17-year-old girl. Defendant and Campbell returned to defendant's house where defendant gave Campbell the shotgun to hide, and burned Karen's purse.

Three to four weeks later Campbell and his attorney looked for and found the badly decomposed body of Karen Keeton. They reported this to the authorities. The body was identified by means of her teeth.

II.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court struck down Georgia's death penalty provisions holding that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner; the Court did not hold that the infliction of the death per se violates the Constitution's ban on cruel and unusual punishments. Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976).

Following the decision in Furman v. Georgia, supra, the Georgia legislature enacted a new death penalty scheme. In Gregg v. Georgia, supra, the Court held that this statutory system did not violate the Constitution. The Court stated:

(T)he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.

Id. at 195, 96 S.Ct. at 2935. The Georgia statute was found to meet this test.

The Missouri death penalty scheme is patterned after the Georgia scheme approved in Gregg v. Georgia, supra. Section 565.008, RSMo 1978, permits the death penalty for only those persons convicted of capital murder. 1 In a capital murder case defendant's guilt or innocence is determined in the first stage of a bifurcated trial. Section 565.006.1, RSMo Supp. 1980. Where the jury or judge returns a guilty verdict, a presentence hearing is held at which,

(T)he jury or judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty, or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas. Only such evidence in aggravation as the prosecution has made known to the defendant prior to his trial shall be admissible. The jury or judge shall also hear argument by the defendant or his counsel and the prosecuting attorney regarding the punishment to be imposed.

Section 565.006.2.

The judge is required to consider or to include in his instructions to the jury for it to consider any statutory aggravating or mitigating circumstances supported by the evidence, any mitigating or aggravating circumstances otherwise authorized by law, and,

Whether a sufficient aggravating circumstance or circumstances exist to warrant the imposition of death or whether a sufficient mitigating circumstance or circumstances exist which outweigh the aggravating circumstance or circumstances found to exist.

Section 565.012.1(4), RSMo Supp. 1980.

Unless one of the aggravating circumstances enumerated in § 565.012.2 is found, the death penalty cannot be imposed. Section 565.012.5. If the verdict is a recommendation of death, the jury must designate the aggravating circumstances which it found beyond a reasonable doubt. Section 565.012.4. The judge is required to impose the sentence fixed by the jury. Section 565.006.2.

If the death penalty is imposed, the sentence must be reviewed on the record by this Court. This Court is directed to consider the punishment as well as any errors raised on appeal, and to determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and

(2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 565.012; and

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Section 565.014.3, RSMo 1978.

The Court must also include in its decision a reference to similar cases taken into consideration. Section 565.014.5. Upon review, the death sentence may be affirmed or set aside and the case remanded for resentencing by the trial judge based on the record and...

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