State v. Young, 66167

Decision Date17 December 1985
Docket NumberNo. 66167,66167
PartiesSTATE of Missouri, Respondent, v. Moses YOUNG, Appellant.
CourtMissouri Supreme Court

Dave Hemingway, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Victorine R. Mahon, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant, Moses Young, Jr., was convicted on three counts of capital murder by a jury in the Circuit Court of the City of St. Louis and was sentenced to death. Following rendition of judgment and imposition of sentences, an appeal was perfected to this Court. This Court has exclusive jurisdiction under Mo. Const. art. V, § 3.

At 9:00 a.m. on February 8, 1983, Lee Rascover opened his pawn shop on Martin Luther King Drive, St. Louis, and admitted appellant who had been waiting in front of the store. Appellant attempted to pawn a gold plated stickpin. Rascover told appellant it was worthless and threatened to have appellant arrested for attempting to steal by deceit. A heated exchange ensued during which appellant attempted to push Rascover, who pushed appellant back and drew his gun from a hip holster and ordered appellant to leave. Appellant eventually left.

Thereafter, Rascover telephoned his pawn shop on Natural Bridge Road, St. Louis, and told Ronnell Bennett, one of his partners, that appellant was bringing the pin there and informed Bennett of the earlier altercation. Appellant arrived at the second shop and attempted to get several thousand dollars for the pin, which attempt was rebuffed by Bennett. At this point appellant engaged in an argument with James Schneider, another of the partners. Bennett suggested that appellant bring something else to pawn. Eventually, they agreed that appellant might have some success trying to pawn guns or rifles. Appellant then left after attempting to take some jewelry which he had asked to examine. His attempt was resisted and he left.

Sometime later, appellant returned to the Natural Bridge Road shop carrying a rifle. At the time four persons were present, Bennett, Sol Marks, who was Rascover's grandfather, Kent Bicknese, a billboard salesman, and James Schneider. Bennett saw appellant as he entered the store, apparently sensed danger, and sent the 80-year-old Marks to the back of the store.

About this time, appellant raised the rifle, said "Here, Rock [Bennett's nickname], I brought this for you," and fired in the direction of Bennett. The shot killed Bicknese, who was standing directly in front of Bennett. At that moment, Schneider emerged from the office and appellant turned and killed him.

Bennett retreated with Sol Marks to the back of the store. Marks hesitated and fell from Bennett's arms. Bennett left him and escaped to the basement where he hid in the vault. While in the basement, Bennett tripped an alarm. Bennett testified that, while he was in the basement, he heard appellant ask Marks "Where did he go?" Bennett then heard two more shots. Bennett also testified that he heard appellant start down the basement steps and yell "Where are you?"

Bennett remained in the vault until he heard police radios sometime later. The police found three bodies (Bicknese, Schneider, and Marks): two in the main lobby and one in the hallway leading to the rear of the building. They also found that the top of the jewelry counter had been smashed and almost all the jewelry was missing. Bennett stated that some $576 was missing from the cash register and an examination revealed that the victims' billfolds were also gone.

Appellant first contends that the trial court abused its discretion when it failed to strike for cause veniremember Debra Williford, who testified at voir dire that her brother had been murdered a year-and-a-half earlier. Our standard of review precludes interference with the trial court's discretion unless there is a clear showing of abuse and a real possibility of injury to the complaining party. State v. Betts, 646 S.W.2d 94, 98 (Mo. banc 1983); State v. Pennington, 642 S.W.2d 646, 649 (Mo. banc 1982). "Abuse" exists when "reasonable men could not differ as to the propriety of the action taken by the trial court." State v. Light, 686 S.W.2d 538, 541 (Mo.App.1985).

After voir dire of Ms. Williford, wherein she repeated numerous times that she "would not ignore her duty as a juror," the trial court concluded:

I'm not going to excuse her. This lady is a teacher * * *. It's my opinion based on her demeanor, the * * * consideration, that she gave to the questions, the time that she took to respond to them, the manner in which she responded that she can be a fair and impartial juror.

We have read the transcript of the voir dire of Ms. Williford and it supports the finding of the trial court. The contention is without merit.

Appellant next contends that the trial court erred in allowing the State to "death qualify" the jury panel, because "death qualification" tends to create conviction-prone juries. Appellant cites Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985). This Court has expressly declined to follow Grigsby. See State v. Nave, 694 S.W.2d 729 (Mo. banc 1985); State v. Malone, 694 S.W.2d 723 (Mo. banc 1985).

Appellant next contends the trial court erred in striking for cause a veniremember Hosea Harville, whose responses, appellant claims, "revealed at most, an equivocal general objection to capital punishment."

The standard of review of this contention was recently stated by the United States Supreme Court in Wainright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985):

The standard is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. "[Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980) ] * * * [I]n addition to dispensing with Witherspoon's reference to automatic decision making, this standard likewise does not require that a juror's bias be proved with "unmistakable clarity."

The transcript reference this contention reads as follows:

MR. ROGERS: But if I can prove it to be serious enough, to you, could you impose the death penalty?

VENIREMAN CARL WILLIAMS: Yes, sir.

MR. ROGERS: Okay. Mr. Harville.

VENIREMAN HARVILLE: It's hard to say about me, I don't--I really don't--you have to really prove it to me.

MR. ROGERS: Well, let's put it like this, are there some cases where you feel that the elements--events are serious enough that the death penalty is merited?

VENIREMAN HARVILLE: I really can't say, I don't--

MR. ROGERS: How do you feel about the death penalty?

VENIREMAN HARVILLE: Personally I really don't like it.

MR. ROGERS: Okay. You don't like it to the extent that you could never impose it on somebody else?

VENIREMAN HARVILLE: I probably couldn't.

MR. ROGERS: Okay. You understand that we need to know now, because once the starts--case starts, it's too late to find out.

VENIREMAN HARVILLE: I probably couldn't impose a death penalty on nobody.

MR. ROGERS: No matter what the circumstances?

VENIREMAN HARVILLE: I don't think I * * * really can impose the death penalty on nobody. * * *

THE COURT: I want to ask a question of Mr. Harville, I understood you to say that you didn't like it and you probably couldn't impose it?

VENIREMAN HARVILLE: Uh-huh.

THE COURT: Now, what I want to know is the question, I don't know that Mr. Rogers phrased it to you this way and if he did, I'm sorry, if I'm repeating it, are there any circumstances that you could conceive of that you would be willing to impose the death penalty?

VENIREMAN HARVILLE: It's hard to say that, I never really thought about it.

THE COURT: I know it's hard to say, but you have to say it.

VENIREMAN HARVILLE: I probably couldn't.

THE COURT: Well, don't tell me whether you probably could or probably couldn't, tell me whether you could or couldn't.

VENIREMAN HARVILLE: I couldn't.

THE COURT: Could not sir?

VENIREMAN HARVILLE: Could not.

THE COURT: Now, you're sure about that?

VENIREMAN HARVILLE: Positive.

THE COURT: All right.

We apply the Wainwright standard and conclude the contention is without merit.

Appellant next contends that the trial court abused its discretion in failing to rule on a motion requesting funds to hire a pathologist to refute the State's evidence that Sol Marks was alive when he was shot. This issue arises from the testimony of Ronnell Bennett that, as he and Marks were escaping to the back of the store, Marks "apparently had a heart attack or passed out and fell" from Bennett's arms. Appellant's theory is apparently that Marks died of a heart attack before he received otherwise fatal gunshot wounds.

The State's evidence on this point came in the testimony of Dr. Michael Graham, the pathologist who performed the autopsy on Sol Marks. Dr. Graham testified that Marks was alive when he sustained the gunshot wounds and that each wound was sufficient in itself to cause death. The basis of Dr. Graham's opinion was his finding of a large hemorrhage associated with the wounds. He indicated that had Marks already been dead, there would not have been any significant bleeding.

In State v. Williams, 603 S.W.2d 562, 560 (Mo.1980), this Court held that "in the absence of statutory authorization, the accused in a criminal case is not entitled to have his expert witnesses summoned at public expense." The State is not constitutionally mandated to provide the accused with such services. Id.; see also, State v. Holland, 653 S.W.2d 670, 678 (Mo. banc 1983). "Whether to provide public funds to aid an accused in the preparation of his defense is within the discretion of the trial court." Holland, supra.

There is no statute authorizing the expenditure of public funds for appellant to retain a pathologist to refute the State's case. Nevertheless, appellant urges this Court to adopt the standard used in Williams v. Martin, 618 F.2d 1021 (4th Cir.1980). We consider...

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