APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, Division 1, HONORABLE GLENNON E. McFARLAND, JUDGE
Motion History: Rehearing Overruled September 13, 1988
Robert T. Donnelly, Judge Billings, C.j., Welliver, Robertson, Rendlen and Higgins, JJ., concur; Blackmar, J., concurs in separate opinion filed.
The opinion of the court was delivered by: Donnelly
Robert T. Donnelly, Judge
This is a direct appeal from the Circuit Court of Clay County challenging the imposition of the death sentence. We have jurisdiction. Mo. Const. art. V, § 3. Affirmed.
The facts are not in dispute. Appellant Jeffery Sloan, then nineteen, lived in a house near Lathrop, Missouri, with his parents, Paul and Judith, and two brothers, Timothy, eighteen, and Jason, nine. A dispute arose in the summer of 1985 between appellant and his father concerning some checks that appellant had written on Paul Sloan's bank account in order to buy drugs. On the night of December 10, 1985, appellant learned that his father had discovered that appellant had written two more checks on his father's account. Later that night, he told a girlfriend, Jennifer Jordan, that his family had received a number of threatening notes and telephone calls.
The following morning, appellant loaded a .38 caliber pistol that he kept under his mattress. He went to his parents' bedroom and shot his father, the bullet striking Paul Sloan's chin and passing through his neck. Appellant's mother, awakened by the blast, sat up in bed and was met by a second blast from her son's gun. The bullet ripped through Judith Sloan's right breast, neck and cheek. Appellant proceeded to the living room, where his two brothers normally slept. Appellant shot Timothy at close range as Timothy was getting up off his bed, the bullet passing through Timothy's left hand and damaging his cheek. Appellant turned to Jason, who earlier had been watching television but now was completely covered by a blanket. Appellant placed the muzzle of the gun against the blanket and pulled the trigger. The bullet travelled through Jason's left wrist and into the top of his head, exiting through the back of his head. Jason died from the head wound.
Appellant reloaded and returned to his parents' bedroom. Finding both of his parents still alive, appellant shot Judith Sloan in the back of the head. Appellant shot his father again, this time in the right eye, the bullet lodging in Paul Sloan's skull. Timothy, the only member of appellant's family still alive, attempted to escape through the front door, but a bullet to the left temple ended his flight in the yard of the Sloan home. Appellant then left for work, throwing the gun, holster, and shells into heavy brush along the way.
Once at work, appellant phoned Jennifer Jordan and asked her to call or go by the Sloan residence and tell Paul Sloan that appellant had reached work safely. Jennifer and her mother went to the Sloan residence to deliver the message and discovered Timothy Sloan's corpse outside of the house. The authorities were contacted, and Mrs. Jordan called appellant and told him to come home. Law enforcement officials arrived before appellant and did not allow appellant to enter the house. Appellant was then placed in a police car where he voluntarily stated that Willis Atterbury had killed the Sloan family. Atterbury had had an affair with Judith Sloan. At the time of the accusation, appellant had not seen the bodies of his parents and Jason.
Appellant was taken to the county courthouse. Along the way, appellant was advised of, and waived, his Miranda rights. He continued to blame Atterbury for the murders. Several hours later, following a visit from his grandfather, appellant confessed to the killings and led officers to the discarded gun, holster, and shells. Appellant gave two videotaped statements in which he described the killings in detail and claimed that his mother had ordered him to murder his entire family. *fn1
Appellant was charged with four counts of first degree murder. Venue was changed from Clinton County to Clay County, and five days before the trial the State dismissed, without prejudice, the charges involving the murders of Paul, Judith and Timothy Sloan. Appellant pleaded not guilty by reason of mental disease or defect excluding responsibility, claiming he was influenced by his allegedly insane mother. At trial, the videotaped confessions were admitted into evidence and played before the jury without objection. The jury rejected appellant's defense and found appellant guilty of first degree murder in the death of Jason Sloan, § 565.020.1, RSMo 1986. The jury then declared the punishment at death, finding the statutory aggravating circumstances to be that the murder of Jason Sloan was committed while appellant was engaged in the commission of the unlawful homicide of Timothy Sloan, § 565.032.2(2), RSMo 1986, and that the murder of Jason Sloan involved depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman, § 565.032.2(7), RSMo 1986.
Appellant does not challenge the conviction. Rather, appellant raises three points challenging the imposition of the death sentence.
Appellant contends that the trial court erred in not striking for cause venirepersons Blair, Davison, and Jaynes during the death qualification stage of voir dire. *fn2 All three were eventually removed by appellant through peremptory strikes.
The proper standard for determining whether a venireperson may be removed for cause during death qualification is "whether the [venireperson's] views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)); State v. Antwine, 743 S.W.2d 51, 60 (Mo. banc 1987), cert. denied U.S. , 108 S.Ct. 1755 (1988). Such a determination should not be based on a single response but should be based on the entire voir dire examination. State v. Smith, 649 S.W.2d 417, 425-26 (Mo. banc 1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Considerable discretion lies with the trial court in determining the qualifications of venirepersons; absent an abuse of that discretion, the trial court's ruling will not be overturned on appeal. State v. Antwine, 743 S.W.2d at 60-61; State v. Smith, 649 S.W.2d at 422.
The venirepersons in question were members of the initial panel of thirteen examined. The prosecutor, Mr. Finnical, opened the questioning by asking whether the venirepersons could recommend the death penalty in an appropriate case, and all three answered affirmatively. In addition, venirepersons Blair and Jaynes indicated that they could recommend life imprisonment without parole. Questioning by Mr. Lerner, the defense counsel, resulted in the following pertinent exchanges:
MR. LERNER: And you don't know what the facts are, but can you think of a circumstance if you've already found guilty of first degree murder . . . where you wouldn't impose the death penalty? . . .
VENIREPERSON DAVISON: Well, I'd have to say right now, no, I cannot.
MR. LERNER: So, if you got to the point where you believed guilty of first degree murder, then you feel that you'd have to vote for death, is that correct?
VENIREPERSON DAVISON: Yes, I think that is correct.
MR. LERNER: . . . Mrs. Davison was very honest with us. She said that if I voted for murder I'd have to impose the death sentence. And I don't know of any circumstances that I can think of, once I voted for murder, where I could think of life without parole, it would have to be death. How do you feel about that?
VENIREPERSON BLAIR: I'd have to go along with what Mrs. said.
MR. LERNER: All right. And why is that?
VENIREPERSON BLAIR: If the facts were proven that the man was guilty and I voted guilty, then I would have to vote for capital punishment.
MR. LERNER: And even though there'll be an opportunity . . . for you to vote for life without parole, you feel that in your heart once you got to the point of saying he's guilty of murder in the first degree, that you'd have to vote for the death penalty?
VENIREPERSON BLAIR: Yes, sir.
MR. LERNER: Well, let's do it this way, once you determined that it's first degree murder as the charge is//--
VENIREPERSON JAYNES: Yes.
MR. LERNER: //--would your decision be death?
VENIREPERSON JAYNES: Yes.
MR. LERNER: And then you wouldn't have any qualms at all with that decision?
MR. LERNER: And it wouldn't be life without parole?
VENIREPERSON JAYNES: (No response).
MR. LERNER: Come on, be honest.
MR. LERNER: . . . And, so, you don't feel, if I'm correct, that once you voted guilty of first degree murder, that in your heart that there could be any other sentence but death, do you?
VENIREPERSON JAYNES: Correct.
The prosecutor then reexamined the three venirepersons:
VENIREPERSON DAVISON: If you got to that stage where you said guilty of murder in the first degree, then I would say death because that's the way I feel.
MR. FINNICAL: In other words, if the Judge instructed you that you were to consider both life in prison without parole or death, you couldn't follow the Judge's instructions and you'd have to give death?
VENIREPERSON DAVISON: Well, no, sir, I swore that would follow the Judge's instructions.
MR. FINNICAL: . . . But, what I'm asking you is, do you understand the scenario here; . . . if you're selected as a juror you're gonna sit in these chairs and you're gonna listen to testimony from this witness stand. And if you find the defendant . . . guilty of murder in the first degree, then you're going to be coming back here and you're going to have another quick hearing. And then you're going to go back in there, after the Judge reads you some more instructions, and the two possible alternatives are going to be life in prison without parole or death. Now, the question is, Mrs. Davison, . . . can you conceive of a fact situation under which you could return a verdict of life in prison without parole, depending on what the facts are?
VENIREPERSON DAVISON: Yes, sir, I could conceive of that. But, it, this is a very difficult thing at this time ...