State v. Sandles, 68896

Decision Date17 November 1987
Docket NumberNo. 68896,68896
Citation740 S.W.2d 169
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Clenell SANDLES, a/k/a Clendell Sandles, a/k/a Clendell Sanders, Defendant- Appellant.
CourtMissouri Supreme Court

Janet M. Thompson, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HIGGINS, Judge.

In the guilt stage of this case, a jury convicted Clenell Sandles of murder in the first degree under section 565.020.1, RSMo 1986. In the penalty stage of the case, the jury informed the court it was unable to agree upon the punishment and the court assessed and declared the punishment at death, all as authorized by section 565.030, RSMo 1986. Judgment was rendered accordingly.

Appellant presents 18 charges of error in all. Seven of these charges allege instructional error in the penalty stage; one challenges the definition of reasonable doubt given in the guilt stage. The remaining charges are that the trial court erred in refusing to grant a continuance; admitting into evidence numerous photographs and a videotape depicting the victim's condition; refusing defendant's request for a mistrial on the basis of prosecutorial comments in both penalty and guilt stages; refusing defendant's request for mistrial based on an assertion there was no evidence on the essential element of deliberation; excluding venireman Shields who indicated he would not vote for a death penalty under any circumstances; refusing to admit into evidence the death certificates of defendant's parents and hearsay testimony concerning his background; submitting an aggravating circumstance instruction concerning depravity of mind; refusing to impanel a new jury or recuse on the basis of post-trial ex parte contact by a juror; imposing the death penalty because it is disproportionate to the punishment imposed in similar cases; and in assessing the death penalty asserting it constitutes cruel and unusual punishment. The judgment is affirmed.

The evidence showed that defendant, a respiratory therapist's aide employed at Oak Hill Hospital in Joplin, Missouri, left work on February 14, 1986, at approximately 11 P.M. He proceeded to the home of one of his coworkers for a few drinks, then to an establishment known as "The Lodge" where he consumed more alcohol. At approximately 2:30 A.M. defendant left The Lodge and proceeded to the home of Jerry and Betty Tapp, his former employers who owned a janitorial service. Jerry Tapp was away from home cleaning a business establishment. Betty Tapp and the Tapps' 24-year-old mentally retarded daughter, Barbara, were at home. When Jerry Tapp returned home at approximately 6:45 A.M., he discovered his wife's nude, blood-covered body lying on the living room floor. He was told by his daughter "Your wife is dead. 'Doc' killed her with a knife." Mr. Tapp called the police who investigated and photographed the scene. Betty Tapp's nightgown and robe were found on the floor in the kitchen, stained with her blood. Blood stains were found in the kitchen, the living room, the hallway leading from the bedroom, and the bedroom. The bed was blood-soaked.

Defendant, when apprehended by the police the following day, admitted killing Betty Tapp and disclosed that the Tapps called him "Doc." He stated to the police that after entering the house he and Betty Tapp went into the bedroom and engaged in consensual sexual activity, including oral sex and intercourse. He said that for some unknown reason he picked up his knife that he carried for protection and stabbed Betty Tapp once during the sexual activity. The physical evidence reveals that Betty Tapp suffered 20 stab and slash wounds, including the fatal penetration of the right atrium of her heart. A vaginal swab revealed indications of semen.

This is the first appeal from a judgment of conviction and sentence to death for murder in the first degree since the public policy of this state was changed to direct the court, in the penalty stage, to assess and declare the punishment if the jury is unable to decide or agree upon the punishment. Section 565.030, RSMo 1986 (L.1983 S.B. 276, A.L.1984 S.B. 448, section A), effective 10-1-84.

Section 565.030.4(4) is specific in its direction that "[I]f the trier is a jury it shall be instructed before the case is submitted that if it is unable to decide or agree upon the punishment the court shall assess and declare the punishment at life imprisonment without probation, parole, or release except by act of the governor or death." The court followed this directive by so instructing the jury and by so acting when the jury was unable to agree upon the punishment. Validity of the statutory mandate is not in question.

Appellant's principal contention is that this Court must set his death sentence aside and resentence him to life imprisonment or remand the case for retrial of the punishment hearing. Section 565.035.5(2), (3), RSMo 1986. Appellant argues that if fully instructed 1 in the penalty stage, it is possible the jury might have reached agreement and not have left the punishment to the trial judge. Specifically appellant complains of the omission of two paragraphs of MAI-CR 2d 13.49, given as Instruction # 21, reading:

It is your duty, and your duty alone, to render such verdict under the law and the evidence concerning the punishment to be imposed as in your reason and conscience is true and just. 2

The state's attorney must open the argument. The defendant's attorney may then make his argument. The state's attorney may then reply. No further argument is permitted by either side. 3

In the penalty stage of this case Instruction # 13, patterned on MAI-CR 2d 13.31, had already told the jury of its responsibility:

You found the defendant guilty of murder in the first degree. At this stage of the trial it will be your duty to determine within the limits presented by law the punishment which must be imposed for that offense;

and similarly, Instruction # 20, patterned after MAI-CR 2d 13.48, had already told the jury:

If, after due deliberation, you are unable to agree upon the punishment, your foreman will sign the verdict form so stating. In such case, the court will fix the defendant's punishment at death or at imprisonment for life by the Division of Corrections without eligibility for probation or parole. You will bear in mind, however, that under the law it is the primary duty and responsibility of the jury to fix the punishment.

The trial court gave, in Instruction # 20, the instruction required by the legislature that triggers the court's duty to assess the punishment if the jury is unable to decide or agree on punishment. The language employed in the first part of Instruction # 20 is that of MAI-CR 2d 13.48 and is virtually identical to that previously quoted from section 565.030.4(4), RSMo 1986. The trial court thus did exactly what the legislature directed it to do when confronted with the circumstances of this case.

The established principles which govern review of an alleged error of omission are that instructions must be considered together and that absence of language in a particular instruction does not prejudice the defendant if the subject matter is covered and provided elsewhere in the instruction. State v. Holt, 592 S.W.2d 759, 776 (Mo. banc 1980). See also State v. White, 622 S.W.2d 939, 943-4 (Mo. banc 1981); State v. Noble, 591 S.W.2d 201 (Mo.App.1980). In Holt the court omitted from the designated instruction, perhaps the most important of all in a criminal case, that the presumption of innocence places upon the State the burden of proving beyond a reasonable doubt that the defendant is guilty. Appellant argued that this left the jury without instruction on the fundamental element of any criminal case. The Court denied the argument because the jury was elsewhere instructed on the element of reasonable doubt. The same is true of the alleged error in the present case because the allegedly omitted language was twice submitted to the jury in Instructions 13 and 20.

The record in this case includes the taped arguments made to this Court by counsel. Appellant's counsel acknowledged, candidly and appropriately, that it would take "incredible speculation" to find that the instructional circumstance in this case caused the jury to be unable to decide the punishment. Appellant's point on the omission asserts only that it might have caused the jury to be unable to agree. This speculative argument disregards that the jury was fully and appropriately instructed, particularly on its "primary duty and responsibility to fix punishment." Missouri courts properly refuse to find instructions prejudicially erroneous if the alleged errors are "no more than speculation." State v. Wood, 662 S.W.2d 876, 878 (Mo.App.1983); State v. Hunter, 586 S.W.2d 345, 348 (Mo. banc 1979).

Four of appellant's allegations of instructional error in the penalty stage are plain error assertions. There is no allegation that the punishment was not within the statutory limit or that the trial court could not have imposed the death penalty in these circumstances. Under the statute the judge or jury could assess punishment and the appellant fails to show prejudice from the judge's assessment of punishment. Thus, no manifest injustice is demonstrated which would require reversal under the plain error rule.

The Court also rules against appellant on the alleged errors in the penalty stage instructions which were preserved for review. Appellant asserts that certain instructions were mutually inconsistent, misled the jury and led to arbitrary and capricious sentencing because they first required that the jury assess punishment at life imprisonment if it did not find beyond a reasonable doubt the existence of at least one aggravating circumstance. Appellant alleges the instructions then allowed the jury to abdicate its...

To continue reading

Request your trial
54 cases
  • Powell v. Bowersox
    • United States
    • U.S. District Court — Eastern District of Missouri
    • August 15, 1995
    ...487-88 (Mo.1988). Petitioner argues that since the Missouri Supreme Court first approved the language of MAI-CR3d 313.48 in State v. Sandles, 740 S.W.2d 169 (Mo.1987), there have been several instances in which a jury has been "unwilling or unable to agree on punishment." Amended Petition, ......
  • State v. Willis
    • United States
    • Tennessee Supreme Court
    • July 6, 2016
    ...“Insofar as the photographs tend to be shocking or gruesome, it is because the crime depicted is of that sort.” State v. Sandles , 740 S.W.2d 169, 177 (Mo.1987) (en banc) (citing State v. Clemons , 643 S.W.2d 803, 805 (Mo.1983) ).We note that two of the photos at issue were enlarged, which ......
  • State v. Kinder
    • United States
    • Missouri Supreme Court
    • December 17, 1996
    ...where defendant committed murder in furtherance of rape), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995); State v. Sandles, 740 S.W.2d 169 (Mo. banc 1987) (affirming death penalty where defendant committed murder during the perpetration of rape), cert. denied, 485 U.S. ......
  • Cole v. Roper
    • United States
    • U.S. District Court — Eastern District of Missouri
    • September 22, 2008
    ...of deliberation. The sheer number of wounds—twenty-one stab and slash wounds—creates an inference of deliberation. See State v. Sandles, 740 S.W.2d 169, 177-78 (Mo.1987) (twenty stab and slash wounds provided sufficient basis for inference of deliberation). In addition, from the position of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT