State v. Shaw

• Decision Date: 02 August 1982
• Docket Number: No. 62679,62679
• Parties: STATE of Missouri, Respondent, v. Bobby Lewis SHAW, Appellant.
• Court: Missouri Supreme Court

Page 667

636 S.W.2d 667

STATE of Missouri, Respondent, v. Bobby Lewis SHAW, Appellant.

No. 62679.

Supreme Court of Missouri, En Banc.

Aug. 2, 1982.

Rehearing Denied Aug. 23, 1982.

William M. Barvick, Jefferson City, for appellant.

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

WELLIVER, Judge.

Appellant, an inmate at the Missouri State Penitentiary, ¹ was convicted by a jury of capital murder, § 565.001, RSMo 1978, ² for the stabbing death of Walter Farrow, a penitentiary corrections officer. The jury recommended the death penalty pursuant to § 565.008(1). This Court has exclusive appellate jurisdiction. Mo.Const. art. V, § 3. We affirm both the conviction and the sentence of death.

I

The facts are not in dispute.

On July 16, 1979, Officer Farrow was assigned to his usual position of supervisor of the twelve to fifteen inmates, including appellant, who worked in the vegetable preparation room at the penitentiary. At approximately 7:20 a. m., pursuant to normal procedure, he checked out two butcher knives and fifteen paring knives from the cold storage area where they were kept overnight. He took them to the vegetable room, where inmates used them to prepare fresh vegetables for the penitentiary kitchen. The knives were kept in a locked cabinet in the vegetable room and were checked out to inmates individually. At the time of the stabbing Farrow had unlocked the cabinet but had not yet issued knives to any of the inmates.

Inmate Roy Maggard, who was assigned to work in the vegetable room, testified that at about 7:30 a. m. he was drinking coffee and talking with Farrow and inmate Bruce Rogers. Maggard and Rogers were sitting on a sink countertop in the vegetable room eight to ten feet across from the knife cabinet and Farrow's desk. Maggard testified that he did not see or hear appellant approach. He said, however, that when he turned after hearing Farrow make a noise and say, "No, Shaw, no," he saw appellant, who was standing only inches away from the three-feet-high railing surrounding the desk, holding the two butcher knives that Maggard and Rogers usually used to cut cabbage. Maggard saw when Farrow rose from his chair that Farrow had been stabbed. Appellant ran out of the room, and Farrow, who was bleeding profusely, went to the door and ordered appellant to return.

Maggard and Rogers assisted Farrow back to a chair, and Maggard telephoned for assistance from other officers. Maggard then went down the hall approximately twenty-five to thirty feet to the state commissary in an effort to obtain assistance. There he saw inmates assisting Clinton Wyrick, the uncle of the warden and a civilian commissary employee, who also was bleeding from apparent stab wounds. Maggard said, "Oh, my God, no," and he returned to the vegetable room. Other officers arrived, and Farrow was taken to the penitentiary hospital, where he died because of blood loss about an hour after the stabbing. The stab wound was approximately seven inches deep. It penetrated the chest wall, went between the ribs, pierced the diaphragm and right lobe of the liver, and ended at the bottom of the liver. It severed the hepatic artery, which supplies blood to the liver, and as a result approximately three-quarters of Farrow's blood drained into the body cavity.

Inmate Byron Berry testified that earlier in the morning, as he was walking back to his job in the main kitchen after applying for a job on the loading dock behind the vegetable room, he saw appellant and another inmate standing alone outside one of the buildings. As he passed within two or three feet of them, he overheard the other inmate ask appellant, "When are you going to do that?" Appellant replied, "I'm going-might as well do it, now." Berry said that there was "something mentioned of a ring, a payment." He also said that he heard one of the men mention the name "Clint" and that he knew of only one person named Clint-Clinton Wyrick-inside the penitentiary.

Clinton Wyrick testified over appellant's objection that he was at his desk in the commissary that morning when appellant entered the open commissary doors. Appellant came around the low railing enclosing Wyrick's desk "in a kind of a little jog trot," took one step at the corner of Wyrick's desk, and, without saying a word, began to stab Wyrick with a butcher knife that he held in his left hand. He also tried to stab Wyrick with a butcher knife in his right hand. The stabbing actions were directed toward Wyrick's chest, but Wyrick was able to fend off the attack with his right arm, which was severely injured in the process. All the arteries and ligaments in his right arm were cut, and once the knife went completely through Wyrick's right arm. In addition, Wyrick was stabbed once in the chest, twice in the stomach, and once in the left arm. The attack lasted thirty to forty-five seconds before appellant ran out of the commissary.

Lt. James Wyrick, Clinton Wyrick's son and the warden's cousin, testified that he had just left the main dining room when he heard on his walkie talkie that there had been a stabbing in the commissary. He ran outside to "seal off the area." At that point he did not know whom appellant had stabbed. As he was attempting to lock Gate Nine, he saw appellant walking toward him. Appellant ordered Lt. Wyrick to let him by, and when Lt. Wyrick refused to do so, appellant pulled two butcher knives from the waistband of his pants and said, "I said, get out of the way." Lt. Wyrick backed away, and appellant went through the gate. Appellant ran through another gate, across the lower prison yard, and into an upper area of the yard before appellant finally obeyed orders to stop. He dropped the knives and was taken into custody.

Appellant's evidence consisted solely of the testimony of Dr. Sadishur Parwatikar, a psychiatrist. Dr. Parwatikar testified that appellant has an I.Q. of 73, within the range of borderline mental retardation. He testified that persons of a low I.Q. are generally more susceptible to the suggestions of others than are persons with a higher I.Q. He testified on cross-examination by the state that suggestability does "not necessarily" interfere with the mental process and that he did not believe that appellant "could not make up his mind." He also testified on cross-examination that appellant would be able to form the intention to kill another person, that he would be able to know that he was practically certain to cause the death of another, and that he would be able to consider taking the life of another person and to reflect thereon coolly and carefully before doing so.

II

During voir dire the trial court recessed between questioning by the prosecutor and the defense counsel. The court admonished the veniremen not to discuss the case or receive outside input, but it did not read MAI-CR2d 1.08(a). Later, after the questioning by both sides was completed but before the jury was selected and sworn, the court allowed the veniremen to separate during a recess for lunch. Appellant now contends that the word "jurors" as used in § 546.230 and surrounding sections, specifically §§ 546.180 and 546.200-.220, actually means "veniremen" and that the trial court therefore erred (1) by failing to read MAI-CR2d 1.08(a) at the first recess and (2) by allowing the veniremen to separate for lunch.

Section 546.230 provides:

With the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of the court during the trial in all cases of felony, except in capital cases; and in misdemeanors the court may permit such separation of the jury on its own motion, but when the jurors are permitted to separate, after being impaneled as provided for in this chapter, and at each adjournment the court must admonish them that it is their duty not to converse among themselves, nor to suffer others to converse with them or in their hearing on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.

(Emphasis added.)

The trial court did not err by failing to read MAI-CR2d 1.08(a) to the venire panel at the first recess. That instruction is included within the section entitled "Oral Instructions to the Jury" and follows MAI-CR2d 1.06, "Instructions After Jury Is Sworn." The jury does not exist until the veniremen selected therefor are sworn to service in that capacity. See Black's Law Dictionary 768-69 (5th ed. 1979). It therefore is unnecessary to read MAI-CR2d 1.08(a) to the venire panel. See State v. Bryant, 558 S.W.2d 269, 269-70 (Mo.App.1977). Moreover, it is clear that the trial court complied with the dictates of the statute. ³ The trial court adequately admonished the veniremen, ⁴ and there was no objection as to the sufficiency of the court's instruction. See State v. Brown, 502 S.W.2d 295, 299 (Mo.1973). Substantial compliance with the statute is all that is required. State v. Harris, 477 S.W.2d 42, 46 (Mo.1972).

Neither was it error for the trial court to allow the veniremen to separate during the lunch recess. Section 546.230 proscribes only the separation of the jury, which at that point did not yet exist. State v. Williams, 515 S.W.2d 463, 466-67 (Mo.1974). ⁵

III

Appellant next contends that the trial court erred in admitting evidence of the subsequent attack upon Clinton Wyrick. He argues that its admission was unconstitutionally inflammatory and that evidence of a crime committed after, rather than before, the crime with which a defendant is charged is not competent proof.

A criminal defendant has the right to be tried only for the crime or crimes with which he is charged. State v. Wright, 582 S.W.2d 275, 277 (Mo.banc 1979); State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967). The admission of evidence of offenses unrelated to the cause on trial breaches that right because it may result in a conviction founded upon...