State v. Newlon

• Decision Date: 09 February 1982
• Docket Number: No. 61798,61798
• Citation: 627 S.W.2d 606
• Parties: STATE of Missouri, Respondent, v. Rayfield NEWLON, Appellant.
• Court: Missouri Supreme Court

Page 606

627 S.W.2d 606

STATE of Missouri, Respondent, v. Rayfield NEWLON, Appellant.

No. 61798.

Supreme Court of Missouri, En Banc.

Feb. 9, 1982.

Rehearing Denied March 9, 1982.

Lon Hocker, Richard H. Sindel, Clayton, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Appellant stands convicted of capital murder, § 565.001, RSMo 1978, by a jury which, in the punishment phase of trial, § 565.006, RSMo 1978, fixed the penalty at death, § 565.008, RSMo 1978, and judgment was rendered accordingly. Direct appeal to this Court lies in such cases for consideration of the punishment assessed, § 565.014, RSMo 1978, as well as the several claims of error. Art. V, § 3, Mo.Const.

For his assignments of error appellant asserts: (1) facial invalidity of the death penalty; (2) improper excuse for cause of three veniremen expressing an unwillingness to consider imposition of the death penalty; (3) prejudice in the verdict directing instruction which failed to require a finding of the mental state necessary for capital murder; (4) failure of the trial court to sua sponte control prosecutorial comment; (5) improper limitation of impeachment of a State's witness; and (6) impermissible vagueness and misapplication of § 565.012.2(7), RSMo 1978, on which the punishment was predicated, rendering the sentence a nullity.

From the substantial evidence adduced supportive of the verdict the jury could reasonably have found the following: On April 24, 1978, at approximately 10:20 p. m., Mr. Mansfield Dave sent his wife and son home from the "Quick Shop" "convenience" store they operated as a family in Kinlock. About twenty minutes later, an alarm sounded alerting Mrs. Dave to possible trouble at the store and when she ran there, she found her husband on the floor dead or dying from two shotgun wounds in the upper body.

This steady flow of events that fateful April 24 led to Mansfield Dave's murder. Earlier in the day appellant brought a single shot 16 gauge shotgun to the home of Walter West, a friend of appellant for more than 10 years. At appellant's request, West brought him a hacksaw which they used to saw off portions of the barrel and the stock. The shotgun so shortened measured about 22 inches and could be concealed beneath a short jacket or inserted barrel first in the waistband of a man's trousers with a shirt or jacket over the stock. Leaving the home they walked along a back road to a liquor store, and on the way appellant, who had seven or eight shells in his pocket, test fired the gun into some weeds. During this time appellant suggested they rob Mr. Dave's "conveniency" store because he wanted "some money". Reaching the liquor store, appellant, who had concealed the gun in his heavy fur-trimmed jacket which extended to his mid-thigh, bought a six-pack of beer, and as they left, West flagged down a passing car driven by Franz Williams, another friend who had attended school with appellant through the seventh grade. The two men entered Williams' car, and when they told him of the robbery plan, Williams agreed to join the scheme. With Williams driving, the trio went to Mr. Dave's Quick Shop where West, apparently to size the situation, entered the store, bought a pack of cigarettes and returning to the car reported there were too many people present to carry out the robbery at that time. The men drove back to the liquor store and purchased another six-pack of beer, then continued cruising the neighborhood in Williams' car.

At approximately 10:30 p. m., the three conspirators again drove to the victim's store and found the customers had gone. Only Mr. Dave remained. Williams and appellant then entered the store while West, who remained in the car, drove to a place in front of the building to permit a view of the store's interior. Williams went toward a soda case in the rear as appellant walked to the sales counter behind which Mr. Dave was standing. Above that counter, plexiglass panels formed a partial physical, though not a visual, screen for the back counter area. Appellant, stationed himself at a point where an opening occurred in the screen and there confronted Mr. Dave who after a moment's conversation, turned his back apparently to get cigarettes from a rack. It was then that appellant drew the sawed-off shotgun concealed in his clothing and aimed at his victim. As Mr. Dave turned back toward the counter, appellant with a blast from the shotgun knocked him to the floor. Appellant then deliberately broke open the single action gun, extracted the spent shell, reloaded ¹ and peering over the counter with Williams, who had by then come to the front of the store, once more hand cocked the gun, took aim and again shot Mr. Dave. He again broke open the gun, extracted the second spent shell and followed Williams from the store. Once outside the two ran in different directions but were shortly picked up by West in the car and as appellant reentered the car he stated that he had to "burn" (kill) Mr. Dave. Though the robbery plan failed, as no money was taken from the store, the murder succeeded when Mr. Dave died from the wounds, one in the upper left chest and the other in the upper left shoulder.

After Mrs. Dave heard the alarm ² and was running to the store, she saw Williams and noted he was not carrying an object of any kind, which is corroborative of the testimony that appellant (not Williams) had the gun and did the killing. The police were promptly summoned to the scene and in their investigation found two spent 16 gauge shotgun shells and, sitting on the counter, a cold bottle of Nehi orange soda bearing William's fingerprints. This too corroborates the testimony that Williams had gone to the rear of the store to get the soft drink from the case while appellant confronted and shot Mr. Dave at the counter near the front. The night after the homicide, appellant delivered the shotgun to West's home where West applied some tape on the shortened stock which had loosened, and later asked his cousin, Kevin Hughes, to take the gun from the house. Hughes did so, but apparently apprehensive of the situation, delivered the gun to Chief Patton of the Kinlock Police and was paid $24. Defense counsel characterized Hughes to the jury as the "little snitch."

The police in their later investigation found the sawed-off portions of the barrel and stock at West's house and determined the shotgun was the weapon which had fired the two spent cartridges found at the murder scene.

Appellant was at the time of the murder a 23 year old black man, with an 11th grade education. He had four convictions of burglary second degree, three convictions of stealing and one conviction of larceny. Though, the record is unclear how much total time was imposed his sentences totaled at least 12 years and perhaps more. Appellant had served part of this time in the penitentiary. In an initial statement to the police, he admitted his presence at the scene but contended he had stayed in the car while West and Williams went inside the store. He later made a videotaped statement and changed his story, admitting that Williams and indeed he had entered the store but asserted that Williams did the shooting while he, appellant, went to the soda case at the rear of the store. In this videotaped statement he also admitted he knew the purpose of their entering the store was to carry out a "heist" (robbery) and in this statement he also asserted that Franz Williams while standing near the car before entering the store stated that "I (Franz Williams) might have to shoot him (Mr. Dave) because he knows me". Thus the possibility of killing Mr. Dave to eliminate any witness was implicitly a part of the plan. In this connection it is important to note that appellant knew the "place", that he had been in the store on prior occasions and was familiar with the store and some of the people who worked there. He knew the store was close by and that the men could "walk" to it. Easy accessibility appears to have been a consideration in choosing that store to rob, all of which suggests that destroying the witness was a motive for the killing. At trial, again changing his story, appellant stated he was not present at the scene of the crime.

I.

Appellant contends that the death penalty authorized by § 565.008, RSMo 1978, is unconstitutional under the United States and Missouri Constitutions. When considering such "statutory validity" challenges we are mindful that our legislature's enactments generally enjoy a presumption of constitutionality and will be declared void only when manifestly infringing a constitutional provision. State v. Hamey, 168 Mo. 167, 67 S.W. 620, 628 (Mo. banc 1902). See also, State v. Mitchell, 563 S.W.2d 18, 26 (Mo. banc 1978). In any determination as to constitutionality of legislatively prescribed punishment, validity is presumed and those seeking invalidation are heavily burdened to demonstrate it as barberous or excessive. State v. Higgins, 592 S.W.2d 151, 155 (Mo. banc 1979), app. dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980). Attentive to these principles we examine appellant's contentions. First: that the death penalty violates the cruel and unusual punishment clause of the Eighth Amendment and the due process provision of the Fourteenth Amendment. This assertion runs contrary to the decisions of the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859, 872 (1976); Proffitt v. Florida, 428 U.S. 242, 247, 96 S.Ct. 2960, 2964, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 2954, 49 L.Ed.2d 929 (1976). The Court in Gregg reviewing the Georgia statutes' death sentence provisions found them constitutional. The analysis there is appropriate in this challenge to Missouri's statute which in essential part tracks that of Georgia leaving little doubt that our death sentence provisions,...