State v. Smith, No. 63338

• Court: United States State Supreme Court of Missouri
• Writing for the Court: RENDLEN; WELLIVER, HIGGINS and GUNN, JJ., and FINCH; SEILER; DONNELLY; SEILER; DONNELLY
• Citation: 649 S.W.2d 417
• Parties: STATE of Missouri, Respondent, v. Gerald SMITH, Appellant.
• Docket Number: No. 63338
• Decision Date: 26 April 1983

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649 S.W.2d 417 STATE of Missouri, Respondent,
v.
Gerald SMITH, Appellant. No. 63338. Supreme Court of Missouri,
En Banc. April 26, 1983.
Rehearing Denied May 17, 1983.

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John Putzel, Asst. Public Defender, St. Louis, for appellant.

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

RENDLEN, Chief Justice.

Defendant appeals from conviction by jury of capital murder, § 565.001, RSMo 1978, ¹ and a sentence of death. Direct appeal to this Court lies for consideration of the punishment assessed, as well as errors alleged on appeal. Section 565.014; Art. V, § 3, Mo. Const. (1945, as amended 1982).

As error defendant asserts: (1) unconstitutional discrimination in the grand jury selection process; (2) improper overruling of his challenge for cause of two veniremen; (3) improper refusal to allow his attorney to inquire of veniremen whether any believed that a death sentence, if assessed, would be carried out; (4) improper refusal to instruct jury that in order to impose death penalty, they must find aggravating circumstances were not outweighed by mitigating circumstances beyond a reasonable doubt; (5) improper instruction of jury on defense of mental disease or defect; (6) facial invalidity of the death penalty statute; (7) impermissible vagueness of applicable statutory aggravating circumstances and insufficiency of evidence to support imposition of death penalty and (8) excessiveness and disproportionateness of death penalty, considering the crime and the defendant.

From the substantial evidence adduced supportive of the verdict, the jury could reasonably have found the following: At approximately 8:00 p.m. on September 8, 1980, defendant and Dana Osia, a girl he had known about four years and had been dating for a week, went driving in Dana's car. After an hour or so, defendant announced his intention to visit a person whom he said was his cousin. Defendant told Dana he was going to hurt this person because she had once given him "the clap." At approximately 9:30 p.m., defendant and Dana drove to the home of Karen Roberts, where defendant invited Karen to take a ride. Initially she refused, but defendant persuaded her to go. After driving about for another hour or so, the three stopped near defendant's house and talked for awhile. During the conversation, defendant asked Dana four times to go home, and Dana finally agreed. Although Dana offered to drive Karen home, Karen was persuaded to stay by defendant, and Dana left alone.

Sometime after Dana's departure, defendant left his house with Karen Roberts to walk her home. According to defendant's subsequent confession, during the walk they argued as to whether she had given him venereal disease. At one point, Karen cursed him and defendant pushed her to the ground. When she got up, Karen was holding a heavy metal bar which she swung at the defendant. Defendant blocked the blow and jerked the bar away; when Karen started to run, defendant gave chase. Carrying the metal bar, defendant chased Karen Roberts across the street, north for half a block, east for half a block to some railroad tracks, north along the tracks for a full block and across another street, where he finally caught her. There, defendant bludgeoned Karen to death with the metal bar. An autopsy on the body of Karen Roberts revealed massive head injuries. The back of her skull was caved in; she suffered six head lacerations, skull fractures "too numerous to count," and multiple contusions and bruises of the brain beneath the skull. These injuries were consistent with multiple blows, inflicted with the heavy iron bar identified as the murder weapon. Any one of the blows could have rendered Karen unconscious or caused her death. Karen also suffered abrasions on her face and contusions of the shoulder, arm, hip and thigh. On a scale of "one to ten," an expert witness rated the seriousness of Karen's injuries at "eight."

Dana next saw defendant on the evening of September 9, 1980, when she, defendant and defendant's brother, Eugene, went driving. At one point, Eugene left the car to go into a liquor store, and defendant told

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Dana he had killed the girl they picked up the night before, which was why he had wanted her to leave. When Dana did not believe he had committed a murder, defendant showed her a newspaper story about the killing. Nine days later, defendant was arrested. After receiving Miranda warnings and executing a waiver, defendant initially denied the murder but later admitted, "I killed the bitch" and gave a detailed statement of the events described above. Defendant also accompanied police officers to the murder scene, where he assisted in locating and identifying the iron bar he used to kill Karen Roberts. The bar was approximately 18 1/2 inches long and weighed about eight pounds. Defendant was charged with capital murder.

On January 30, 1981, four months before trial, state's witness Dana Osia received the following letter addressed to her but unsigned and written on a paper bag:

Dana you are as good as dead if you show in Court on my partner Jerry Smith. You might just die anyway unless you tell them you was lying in Court.

The defense stipulated this letter was written by defendant. On March 14, 1981, another letter handwritten by defendant was received by a St. Louis newspaper, the St. Louis Globe-Democrat:

You people wrote the story on me back in September all wrong. So I am giving you the real story.

I Gerald Smith killed Karen Roberts. I have been looking for her for 4 months so I could kill her. On September the 8 1980 I finally got my chance to kill her and I done just that. I had a gun on me at the time but I thought shooting her would be to damn good for her. I wanted her to feel some pain so I beat her little lousy head in. If she were living now I would do it all over to her again. She gave me a dose of the clap back in April 1980, and because of that my feeancee Joyce Dodson left me over it. I planned on killing her ever since.

Gerald Smith

the cold blooded killer

Defendant did not testify but admitted through counsel that he killed Karen Roberts. He called two witnesses, a psychiatrist and psychologist, to advance a theory of diminished capacity and assertion that the act at most constituted second degree murder. After considering the evidence, arguments and instructions, the jury found defendant guilty of capital murder. At the punishment phase of the trial, the state introduced no additional evidence, but the defense called a City Jail chaplain, defendant's mother, and his former girl friend to argue against the death penalty. The jury returned a sentence of death, which was imposed by the court.

Defendant is a white male with an eighth grade education. At the time of the murder he was 21 years old.

I.

Defendant contends the trial court erred in overruling the motion to quash his indictment because the process of grand jury selection in the City of St. Louis denied him equal protection of the laws and his right to a grand jury representing a fair cross-section of the community. Defendant was indicted by the August, 1980 term of the Grand Jury, and his motion to quash was consolidated with 140 others containing the same allegations regarding the same grand jury. The contention raised here was briefed, argued and overruled in State v. Baker, 636 S.W.2d 902, 907-10 (Mo. banc 1982) and State v. Payne, 639 S.W.2d 597, 598-99 (Mo. banc 1982), appeals involving other consolidated defendants. Defendant concedes our holding in Payne controls here, and the contention is denied.

II.

It is next asserted the court erred in overruling defendant's challenges for cause of two veniremen, neither of whom served on the jury.

The principles governing jury selection in this state are well established. Among others is the right of the criminal accused to fair and impartial jurors who

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will follow the law. To protect the defendant's right to a jury free from objectively demonstrated and subjectively sensed partiality, he must be afforded a full panel of qualified veniremen from which to make his allotted peremptory challenges, State v. Engleman, 634 S.W.2d 466, 471 (Mo.1982); State v. Thompson, 541 S.W.2d 16, 17 (Mo.App.1976). While trial court refusal to sustain a valid challenge for cause constitutes reversible error, State v. Engleman, 634 S.W.2d at 471, it is well established that the trial court has wide discretion in determining the qualifications of a venireman, and its decision thereon will not be disturbed absent a clear abuse of discretion and real probability of injury to the complaining party. State v. Betts, 642 S.W.2d 604 (Mo. banc 1982). A clear line cannot be drawn for all cases as to when a challenge for cause should be sustained; there will be instances in which an appellate court might have done differently but cannot say there was an abuse of discretion; each case must be judged on its particular facts; a determination by the trial judge of the qualifications of a prospective juror necessarily involves a judgment based on observation of his demeanor and, considering that observation, an evaluation and interpretation of the answers as they relate to whether the venireman would be fair and impartial if chosen as a juror. State v. Cuckovich, 485 S.W.2d 16, 22-23, (Mo. banc 1972). Because the trial judge is better positioned to make that determination than are we from the cold record, doubts as to the trial court's findings will be resolved in its favor. State v. Engleman, 634 S.W.2d at 472.

Defendant contends the court erred in denying his motion to strike for cause Venireman Moss, because the testimony showed "he would likely give greater weight to the testimony of a police officer purely by virtue of his status as a police officer." Voir dire of Mr. Moss included the following:

MR. BAUER [PROSECUTOR]: ... [Y]ou may recall as I read the list of witnesses, quite a...