State v. Richter

• Decision Date: 29 March 1983
• Docket Number: No. 63353,63353
• Parties: STATE of Missouri, Respondent, v. Richard Dale RICHTER, Appellant.
• Court: Missouri Supreme Court

Page 513

647 S.W.2d 513

STATE of Missouri, Respondent, v. Richard Dale RICHTER, Appellant.

No. 63353.

Supreme Court of Missouri en banc.

March 29, 1983.

Gerald D. McBeth, Bradford L. Pittenger, Nevada, for appellant.

John Ashcroft, Atty. Gen., William K. Haas, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM:

This appeal was heard in Division One of this Court where an opinion was prepared by Morgan, P.J. The cause was reheard by the Court en banc and the opinion by Morgan, P.J., is adopted as the decision of the Court en banc. The opinion is set forth without use of quotations:

Defendant Richard Dale Richter was found guilty by a jury of two counts of murder second degree, section 565.004, RSMo 1978, and was sentenced to imprisonment for life on one count and twenty years on the other with the sentences to be served consecutively. Because of the life sentence imposed, this Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3.

On the afternoon of December 13, 1980, Clester Parks saw black smoke rising from under the Panther Creek Bridge near Rockville, Missouri. There was a Buick Skylark parked on the side of the bridge, and Parks wrote down its license plate number on a piece of paper. Irvin Isaacon arrived at the bridge shortly thereafter. At that time, a man came off the bridge and Parks asked the man what happened. He replied, "I started a little fire." The man did not say anything further but shielded his face with his coat, slammed his trunk lid, jumped in the car and drove off. As the man drove by, Isaacon looked at him. Isaacon identified the man as defendant.

When Isaacon walked down to the fire, he discovered two bodies on a burning mattress. He pulled the bodies out of the fire and poured water on them. Parks gave Isaacon the piece of paper with the license plate number on it. By then, Ed Hooper had arrived at the scene. He gave Isaacon a ride into Rockville to call the Bates County Sheriff's Department where he reported the license number.

Dennis Davis, a deputy sheriff of Bates County, received the call from Isaacon and Hooper. The license plate number belonged to defendant. Deputy Davis was present at the autopsies conducted on the two victims, Donnie and Tommy Burns, and testified that several photographs taken at the autopsies were fair and accurate.

Dr. Upsher, a specialist in pathology, conducted the autopsies on the Burns brothers. He concluded that death was due to massive skull fractures; Tommy dying almost instantly, and Donnie in a matter of minutes.

On December 14, 1980, Terry Davis, a deputy sheriff of Vernon County, proceeded to a location west of Schell City on AA Highway in Vernon County. He observed blood, hair, and clothing in a 255-foot stretch of blacktop.

On December 15, 1980, Deputy Davis and Sergeant Ullery of the Highway Patrol were transporting defendant from the Bates County Jail to Lee's Summit, Missouri, to question him. Defendant indicated that he wanted to make a statement.

After being advised of his Miranda rights, defendant made an oral statement to Deputy Davis and Sergeant Ullery. A summary of the notes taken by Davis follows: On Thursday evening, December 11, 1980, defendant and his former wife, Cathy Shoemaker, who were now living together with their three children, were talking about Tommy Burns having raped a little girl in Butler, Missouri. Defendant's seven-year-old daughter, Stacey, told them that Donnie Burns had raped her once when he was baby-sitting. Defendant and Stacey went looking for Donnie that night. On Friday, December 12, 1980, defendant and his brother, Gary Richter, saw Donnie and Tommy and the four went riding around together. They went to defendant's parents' home. When defendant told his father what had happened, his father said to take the Burns brothers to the police. Defendant stated that he took Gary home and then drove out to AA Highway and stopped. He told Donnie to get out because he wanted to talk with him. Defendant got the tire bat from under the seat and took Donnie to the back of the car. Defendant asked Donnie what happened and when he told him, defendant hit him repeatedly and "could not stop." Then Tommy got out of the car and told defendant to quit. Defendant ran Tommy down while hitting him. Defendant then ran over them with his automobile, forwards and backwards, several times. Defendant stated that when he came to his senses, he loaded Donnie and Tommy into the car and dumped them out by the bridge. Defendant burned the bloodstained things. He later returned to the bridge and set the bodies on fire. Defendant admitted that the Burns brothers never fought back.

Sergeant Ullery testified that on December 15, 1980, after returning to the Bates County Jail, defendant made a written statement after being advised of his Miranda rights. This statement was substantially the same as the oral statement made to both Sergeant Ullery and Deputy Davis; however, defendant added that when his father told him to take the Burns brothers to the police, defendant said he "was going to beat the hell out of him first."

Leonard Hough, Sheriff of Bates County, interviewed defendant on December 17, 1980, at the Vernon County Jail. He advised defendant of his Miranda rights ¹ and advised defendant that Mr. Smith had been appointed as his attorney. ² Defendant said he did not request the attorney's presence during the statement. Defendant made a written statement very similar to the two statements made on December 15, 1980, except that in this statement defendant admitted that his brother Gary was present at the time of the killings and had yelled to defendant to "please stop, don't kill them." Sheriff Hough also testified that defendant told him that he used a "tire knocker" to kill Tommy and Donnie Burns. Defendant described the tire knocker as a heavy piece of hard wood that he got at a truck stop which was used to beat trailer truck tires to check air pressure.

On May 8, 1981, defendant, while incarcerated at the Vernon County Jail, asked Don Loiselle, a jailer, to deliver a letter to Gary Richter, who was also confined at the jail. The letter was written on regular tablet paper. It was not sealed in an envelope or addressed. It had the name "Gary" on the outside. Loiselle took the letter, briefly reviewed it, and gave it to Robert Gast, Sheriff of Vernon County.

Sheriff Gast gave the original letter back to defendant, but retained a photocopy. One part of the letter recited that "the night I killed those two, of course you had no idea I was going to kill them and in fact you didn't even know I was mad at them ...."

Defendant's sole defense was mental disease or defect excluding responsibility. Dr. Richard M. Childs, a psychiatrist, testified that defendant had a "very primitive personality, with brittle defenses and vulnerability to being overwhelmed by emotional feelings and enraged reaction." Dr. Childs further testified that defendant, after learning of the rape of his daughter, largely had the mental capacity to consider taking the lives of the Burns brothers and to reflect coolly and calmly before doing so. Defendant told the doctor that he had thought of killing them but it was not his plan to do so. Dr. Childs also testified that he did not believe that defendant planned to do so at that time. In his opinion, the key that ultimately set defendant off was when Donnie told him what he had done and at that time defendant was not able to reflect coolly on the matter. On cross-examination, Dr. Childs stated that he diagnosed defendant as having a "personality disorder, other," and that such a disorder constituted a mental disease or defect.

Over defendant's objection, the state was permitted to call Dr. Frank Schoolcraft, a psychiatrist, as a rebuttal witness. Dr. Schoolcraft had not been disclosed to defendant. He testified that a "personality disorder, other" was not a mental disease or defect.

I.

Defendant contends that the trial court erred in striking three jurors for cause because of their opinions concerning the death penalty. Defendant relies upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which held:

a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

391 U.S. at 522-23, 88 S.Ct. at 1777 (Emphasis added and footnotes omitted).

However, it is clear that the Witherspoon holding only applies when a sentence of death is returned by the jury. Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Missouri follows this rule. State v. Mitchell, 611 S.W.2d 223, 228 & n. 5 (Mo. banc 1981). Since the jury did not return a death verdict in the present case, Witherspoon does not apply.

II.

Defendant contends that the trial court erred in omitting the penalty provisions in the verdict directing instructions on manslaughter and second degree murder. Essentially, defendant argues that the penalty provisions should be included in the appropriate instructions when capital murder is submitted as a higher homicide.

Defendant concedes that the instructions as given were in compliance with the directives of MAI-CR2d. In particular, Note 5 of the Notes on Use to MAI-CR2d 15.18 [Manslaughter: Conventional] and Note 6 of the Notes on Use to MAI-CR2d 15.14 [Murder: Second Degree, Conventional] direct that if capital murder is submitted as a higher homicide, submission of punishment in MAI-CR2d 15.14 (and 15.18) is to be omitted. This directive is based on section 565.006, RSMo Supp.1981, which provides in pertinent part: "At the conclusion of all trials upon an indictment or information for capital murder...