dissenting.
I agree with the holdings of the principal opinion, first, that the evidence amply supports the judgment, and, second, that the sentence of death is not disproportionate. I am of the opinion, nevertheless, that a new trial is necessary (1) because of the trial court’s refusal to grant a change of venue on proper motion filed, and, (2) because of the rejection in limine of evidence regarding the lenient treatment of a co-participant in the crime as a part of a plea bargain.
The principal opinion brushes off these points by saying that both rulings involve the trial court’s discretion. I believe that we should develop some standards for the guidance of trial judges on their discretionary rulings in death sentence cases, and should not use the concept of discretion as a license to affirm. It is important not only that trials meet minimum standards of fairness, but also that there be an appearance of fairness to the defendant and those who are interested in him. The more atrocious the crime, the graver the charges, the more important it is that the trial appear to be fair.
I.
The defendant filed a timely motion for change of venue in proper form, asserting prejudice of the residents of the county on account of pretrial publicity. Because Jefferson County has more than 75,000 inhabitants, the defendant was obliged to support the motion by affidavit. See Section 545.490, RSMo 1986. Rule 32.04. He made a rather substantial showing that the circumstances of the double murder were well known in the county, but the trial judge brushed him aside. I believe that the motion should have been sustained.
The principal opinion minimizes the defendant’s showing. The crime received widespread publicity and the venire was substantially impacted. The defendant has demonstrated the conditions which often impel prudent defense attorneys to seek change of venue. It is hard to show actual effect, but the potential is present. We should send the message to trial judges that a timely motion for change of venue, properly supported, should ordinarily be granted.
The facts of this case may not be so dramatic as in Shepard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), and Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) which held that change of venue was required as a matter of federal law. But we should not set our requirements at the minimum federal standard. We should, rather, apply the long Missouri tradition of change of venue so that, when the circumstances of a crime are widely publicized the case is taken to another county where few people have heard of it. It is proper to require a showing in the larger counties, rather than allowing an automatic change, but when the record shows information which shows reason for serious concern the change should be allowed.
I am afraid that future trial judges, fortified by the principal opinion will follow the line of least resistance by leaving the case where it is. We should instruct them to grant the change if there is any troubling doubt.
II.
I believe that the jury in considering the sentence of death, is entitled to know the disposition of the cases of co-participants. It is not enough to say that this evidence does not relate to the offense or to the defendant. The jury should have before it all evidence which a reasonable person would consider important in determining the sentence. I am sure that jurors would want to know how co-participants have fared.
When the state strikes a plea bargain and the bargaining defendant testifies, the sentence received or promised may be introduced by the defense as impeaching evidence. Thus the point presented by this *406record will seldom arise. I would not deprive the jury of the information simply because the prosecution elects not to put the bargaining witness on the stand in the particular case.
The principal opinion indicates that the jury is not entitled to make a proportionality review, because that review is the function of the Court. Yet the opinion also points out that we will give no consideration to the sentence imposed on a potential defendant who pleads guilty to a lesser offense. State v. Bolder, 635 S.W.2d 673 (Mo. banc 1982). Under the principal opinion, there will be no proportionality review as to a defendant who makes a plea bargain, unless the bargainer testifies.
The principal opinion cites federal cases and suggests that they are distinguishable. Once again we should insist on more than the minimum compliance with federal standards. It is important to have some uniformity in the infliction of capital punishment. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The defendant should be able to submit for consideration, at some stage of the case, the possibility that others who share his guilt have been punished relatively lightly. Our trial courts should be lenient rather than grudging in allowing the capital defendant to present evidence which might possibly induce jurors to consider leniency.
I would reverse and remand for a new trial which, because of the change of venue issue, must cover both guilt and punishment.