dissenting.
In my view, when the state seeks to put a person to death upon conviction of a capital crime, it must follow the law with a reasonable degree of exactness and courts should not ignore or overlook any mandate of the law.
Missouri did not do so in this case. The state circuit court permitted the jury to sentence Grubbs to death by execution *1472when no evidence existed to support two of the aggravating circumstances: (1) that Grubbs committed murder “for the purpose of receiving money or any other thing of monetary value,” and (2) “for the purpose of preventing a lawful arrest” of Grubbs.
With respect to the aggravating circumstances, here in question, all that the Missouri Supreme Court offers are these bare statements:
Approximately thirty dollars and some food stamps were taken from the victim’s trailer. The next day defendant and his brother returned to the trailer in order to set it afire and destroy the evidence. Late that evening, the fire department was summoned to put out the fire and Thornton’s body was discovered.
State v. Grubbs, 724 S.W.2d 494, 496 (Mo.) (en banc), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707 (1987), and this bare conclusion that “[t]he evidence previously recited demonstrates that a reasonable juror could find these aggravating circumstances to be present.” Id. at 500.
Justice Blackmar’s concurrence, more to the point, states:
I am also concerned about the statutory aggravating circumstances found by the jury. I am aware of nothing in the record to support the finding that the defendant killed “for the purpose of preventing his lawful arrest.” The fact that the defendant and his brother wore gloves in February, and the fact that money and food stamps were missing (but not found on the defendant), provide, at the most, scanty support for the assertion that the killing was committed “for the purpose of receiving money or [any] other thing of value.”
Id. at 502.
The federal district court in reviewing the record observed:
Ground L is petitioner’s claim that the trial court improperly submitted to the jury two aggravating circumstances not supported by the evidence: (1) that petitioner committed the murder “for the purpose of receiving money or any other thing of monetary value,” and (2) that the murder was committed “for the purpose of preventing a lawful arrest” of petitioner.... The Missouri Supreme Court rejected this contention on direct appeal, holding that a reasonable jury could have found, based on the evidence, that these circumstances existed. Grubbs, 724 S.W.2d at 500. In his concurrence, [Justice] Blackmar disagreed with that holding. Id. at 502. Based on a careful review of the trial record, this Court makes it own determination of this question of law, and in so doing so is in agreement with [Justice] Blackmar....
Grubbs v. Delo, 734 F.Supp. 395, 406 (E.D.Mo.1990) (adopting the passage from Justice Blackmar’s concurrence quoted supra, at 1472).
The federal district court then ruled that:
The only direct evidence with respect to the missing money and food stamps was petitioner’s testimony that his brother Randy, who was also involved in the killing, took them before leaving the trailer. The evidence suggests that the gloves were worn so as not to leave incriminating fingerprints on the knives with which the victim was cut; the record provides no basis whatsoever for any connection between the gloves petitioner and his brother wore at the scene and any preexisting purpose of pecuniary gain. This negligible evidence is insufficient to support a finding beyond a reasonable doubt that petitioner killed the victim for monetary gain.
Even less support exists in the record for a reasonable finding that the murder was designed to prevent petitioner’s arrest. The Court suspects that the evidence that petitioner and his brother later returned to the scene and set the trailer on fire in an attempt to conceal the murder was somehow construed by the jury as evidence of this aggravating circumstance, but such an inference is backwards: the fire was set for the purpose of preventing arrest for the murder, perhaps, but the murder itself had no apparent purpose of evading arrest. The Court believes, then, that both of the challenged aggravating circumstances were erroneously submitted to the jury.
*1473Id. at 406-07 (footnote and citation to the record omitted).
The majority conceived a new scenario, regarding aggravating circumstances, by piling an inference upon an inference to arrive at a conclusion that a “rational juror” might find that defendant and his brother went to the victim’s home to rob him, then later murdered the victim in order to avoid arrest for the robbery. Supra, at 1469-70. That theory, it seems to me, hangs by a chimerical thread, without support in the record or prior judicial opinions.
This writer need not add to the perceptive findings of the district court and the apt observation of Justice Blackmar. I disagree, however, with any conclusion that the death penalty would have been imposed, absent these mistaken conclusions by the jury based upon the improper submission of aggravating circumstances. Though I do not dispute a finding that the murder was aggravated by “outrageously or wantonly vile” circumstances, no court should invade the jury’s province and say that the jury would have decreed death in this case on the basis of this single aggravating circumstance.
I would observe that Lewis v. Jeffers, — U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), cited by the majority, does not change the analysis, inasmuch as no evidence exists relating to the aggravating circumstances, here in question.
Finally, as Justice Blackmar cogently observed in his concurring opinion:
This case seems to have arisen out of a drinking session.1 The killing was shocking and senseless, but numerous life sentence cases are reported in which the ultimate punishment is much more appropriate than in this case (if, indeed, we must depart from the practice of nations who follow the western tradition in exacting the death penalty). The defendant had numerous convictions, but none for major offenses. His is an unlikely selection for the death sentence, when some juries assess it and some do not.
Grubbs, 724 S.W.2d at 502 (footnotes omitted).
Accordingly, I would grant habeas relief in this case and require that the State of Missouri retry the penalty phase of the trial or reduce the sentence to life imprisonment without the possibility of parole.
. This comment relating to drinking seems supported by Chief Justice Higgins’ opinion for the Missouri Supreme Court, stating in part:
Defendant testified that he and his brother had been drinking when they went to the trailer. Although they entered the trailer with Thornton’s permission, Thornton, who had been drinking heavily, told defendant he did not like him and wanted him to leave.
State v. Grubbs, 724 S.W.2d 494, 496 (Mo.) (en banc), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707 (1987).