State v. Wilkins

DONNELLY, Judge,

dissenting.

Mandatory review under section 565.035, RSMo 1986.1

In this case, defendant entered pleas of guilty and expressed a desire to be put to death. The Court conducts its mandatory review, § 565.035, RSMo 1986, of a sentence of death, imposed following a hearing to determine punishment, § 565.032.2, RSMo Cum.Supp.1983. For reasons stated, we reduce sentence to life imprisonment without possibility of probation or parole, barring executive act.

The facts are undisputed, drawn from defendant’s statements to a police investigator and to the trial court during the sentencing phase, from reports and testimony of psychiatrists who examined defendant, and from the report of a presen-tence investigator. On the night of the fatal stabbing of Nancy Allen, defendant Wilkins was aged sixteen years, six months, twenty days. For about a month previous, he had been living on the streets of Kansas City with three other juveniles, Pat “Bo” Stevens, Roy “Shades” Thompson, and Marjorie “Midget” Filipiak. At Wilkins’ initial suggestion, the foursome plotted to rob area businesses. Defendant proposed, and the group acceded to, Linda’s Liquor & Deli in Avondale as an initial target. Wilkins maintained he would kill anyone present to conceal the perpetrators’ identities. To facilitate his claimed objective, Wilkins purchased a narrow-bladed, martial arts knife from Stevens with money defendant had stolen from a laundromat.

As preconceived one to two weeks before, an intricate plan unfolded July 27, 1985. At or near 10:15 p.m., the four juveniles met at North Kansas City Hospital. Defendant and Stevens walked through a *419wooded area to the nearby deli, leaving Filipiak and Thompson at the hospital to await their return. The two boys stalked the target from along a neighboring creek while customers transacted business in the store and left. It was nearing closing time. Around 11:00 or 11:30 p.m., toting a change of clothes apiece in defendant’s handbag, the two youths executed the crime. The handbag was left outside the deli to avert suspicion; both boys wiped mud from their shoes to avoid leaving footprints inside. Nancy Allen, the store clerk, was alone, seated behind the counter, when the boys entered. Wilkins ordered a sandwich. Stevens asked to use the restroom. When Stevens exited, he grabbed the victim, holding her while Wilkins rushed forward, produced the knife, and stabbed her in an area of her back he thought to be her kidney. Allen fell to the floor. Lying on her back, the victim responded to a question Stevens put to her, and began pleading with defendant not to kill her. Wilkins told Allen to be quiet, then stabbed her repeatedly in the chest and throat areas. Expert medical testimony indicated Mrs. Allen probably was deceased before Wilkins imparted the last wound to her body.

Stevens pilfered cash, checks, liquor, cigarettes and rolling papers from the cash register and store displays. Roughly $450.00 in cash and checks were taken. Stevens then “freaked out,” and defendant had to push him out the door. Wilkins wiped Stevens’ fingerprints from the doorknob before the pair made their immediate flight.

Defendant and Stevens rendezvoused with Filipiak and Thompson at the hospital. To evade any pursuit, the foursome left the hospital in cabs Filipiak summoned from two local cab companies. The juveniles rode in pairs to a Kansas City bus depot. There, they talked a while, divided the stolen cash, and the principals changed clothes. Stevens and Thompson left, again in a cab. Wilkins and Filipiak lagged behind about an hour to play video games, then left by the same means. The four met back at the lake area they frequented in Penguin Park and “tripped out.” They used the stolen checks to start a fire. Defendant used his share of the money to buy drugs.

About a week later, Wilkins encouraged Stevens to lure “some guys” into the lake area so defendant could kill them. This plan was aborted when a patrolling police officer happened into the area. Wilkins threw his knife into the lake to avoid discovery. The weapon never was found.

Defendant was arrested August 10,1985. He acquiesced to giving a statement, in which he admitted to and described in detail the deli store murder.

As indicated above, this case comes to the Court in a peculiar posture. Wilkins was certified to be tried as an adult and was appointed counsel, Mr. Frederick Du-chardt. In late January or early February 1986, Wilkins informed Duchardt that he wished to withdraw an earlier plea, not guilty and not guilty by reason of mental disease or defect, and substitute pleas of guilt to all charges.2 Defendant also expressed a desire to seek the death penalty as his punishment. Counsel refused to aid Wilkins in this sordid goal.

Two psychiatrists and a clinical psychologist investigated defendant’s competence to stand trial through interviews and testing. On considering the psychiatrists’ testimony at an April 16,1986, hearing, the trial court found Wilkins competent to proceed. Wilkins immediately moved, pro se, to represent himself before the court. One week later, the court accepted defendant’s written waiver of counsel.3 Mr. Duchardt was discharged from representation, but the court ordered him to remain available to answer any legal questions defendant might have.4

*420Wilkins immediately announced his desire to enter guilty pleas to all charges. The court attempted to dissuade him, to the point of describing how lethal-gas executions were performed. Defendant was encouraged to “talk to other people about this decision you’re having to make,” and the cause was continued until May 9, 1986. Wilkins persisted. When the case was resumed, he offered written petitions to enter the desired pleas. After extensive questioning, during which the trial judge offered defendant every opportunity to change his mind, the pleas were accepted as to each count. Sentencing was scheduled for June 27.5

Wilkins was given maximum sentences for the lesser offenses: five years’ imprisonment for unlawful use of a weapon, life imprisonment for armed criminal action. The court then considered evidence on the appropriate sentence for Nancy Allen’s murder.6 In a bizarre climax to the proceedings, both prosecutor and defendant urged the ultimate sanction. Defendant realized his goal — the court passed a sentence of death. Supporting the sentence imposed, it found as aggravating circumstances that: 1) Defendant was engaged in perpetrating a felony (robbery) when the murder was committed, § 565.032.2(11); 2) The murder was outrageously or wantonly vile, horrible or inhuman, since it reflected depravity of mind, § 565.032.2(7).

Neither the record nor counsel suggest the sentence imposed reflects the least hint of passion, prejudice or arbitrariness. § 565.035.3(1), RSMo 1986. Moreover, the record supports the court’s conclusions under section 565.032.2(7) & (11), RSMo 1986. We turn, therefore, to the dispositive question, “whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence and the defendant.” § 565.035.3(3), RSMo 1986. Under the facts of this case, in light of Wilkins’ age as of the offense, his prolific abuse of drugs and alcohol, and his long history of mental and emotional affliction, we hold the sentence excessive and disproportionate, and reduce that sentence to one of life imprisonment without possibility of probation or parole, barring executive clemency. § 565.035.5(2), RSMo 1986.

Relevant cases for a review of the appropriateness of the sentence are those in which the judge or jury first found the defendant guilty of capital murder and thereafter chose between death or life imprisonment without the possibility of parole for at least fifty years.

State v. Bolder, 635 S.W.2d 673, 685 (Mo. banc 1982), cert. denied, 459 U.S. 1137,103 S.Ct. 770, 74 L.Ed.2d 983 (1984).

First, we consider defendant’s age. In four capital cases involving youths of comparable age, a life sentence was imposed. State v. Greathouse, 627 S.W.2d 592 (Mo. 1982) (defendant age seventeen); State v. Allen, 710 S.W.2d 912 (Mo.App.1986) (defendant age sixteen); State v. White, 694 S.W.2d 802 (Mo.App.1985) (defendant age seventeen); State v. Scott, 651 S.W.2d 199 (Mo.App.1983) (defendant age sixteen). Only one Missouri youth has been sentenced to die who was seventeen years old or younger as of his crime. State v. Lashley, 667 S.W.2d 712 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

In Greathouse, Allen, White, and Scott, the jury was instructed on defendants’ lack of prior criminal activity as a mitigating factor reference sentence. In this sense, the case sub judice is distinct.7 But the jury was similarly instructed in State v. *421Battle, 661 S.W.2d 487 (Mo. banc 1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984) (defendant aged eighteen years, four months; no significant history of criminal activity; death sentence affirmed), and State v. Blair, 638 S.W.2d 739 (Mo. banc 1982), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030, reh’g denied, 459 U.S. 1229, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983) (defendant eighteen; same history and sentence). As to this age group of offenders, then, the absence, and thus presence, of a significant history of criminal acts may be an unreliable predicate for proportionality review. As to this age group of offenders, perhaps the most to be said is that age as a mitigating factor, § 565.030.3(7), RSMo 1986, standing alone, is insufficient to overturn a death sentence, on grounds the penalty is excessive or disproportionate, once the trier of fact has passed such sentence. State v. Lashley, 667 S.W.2d 712 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); State v. Battle, 661 S.W.2d at 494-95.8

Next, we look to cases in which death was imposed on a young offender and make comparison based on the nature of the killing. In State v. Battle, 661 S.W.2d 487 (Mo. banc 1983), cert. denied, 463 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984), defendant, eighteen, stabbed an eighty-year old woman with a twelve-inch butcher knife. The mortal wound was inflicted just below the victim’s left eye. The elderly woman, “naked, beaten and ravished,” suffered nearly three hours before she died. The jury recommended the death penalty, after being instructed only on the “vile, horrible or inhuman” nature of the killing as an aggravating circumstance. See § 565.032.2(7), RSMo 1986. Battle is different from this case. Nancy Allen was not sexually abused before or after the murder, compare State v. White, 694 S.W.2d 802 (Mo.App.1985) (indications victim may have been sexually molested after death; defendant, seventeen, received life sentence), with sub judice and Battle; and, no evidence indicated Mrs. Allen suffered for any prolonged period after Wilkins attacked her. Indeed, the coroner indicated she may have been dead by the time defendant imparted the last wound. Certainly this killing, however senseless, was no more repulsive than those involved in State v. Beck, 687 S.W.2d 155 (Mo. banc 1985), cert. denied, — U.S.-, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986) (nineteen-year old shot and killed elderly couple; life sentence); State v. Greathouse, 627 S.W.2d 592 (Mo.1982) (seventeen-year old struck uncle with ax, then shot him eight times; life sentence); State v. Baskerville, 616 S.W.2d 839 (Mo.1982) (nineteen-year old; triple-murder, life sentence); State v. Allen, 710 S.W.2d 912 (Mo.App.1986) (sixteen-year old, given life imprisonment; insisted after robbing couple, aged 67 and 68, that they be killed “the way Muslims kill people — by tying ‘their ankles [?] to their feet’ ”, laying each on stomach, then stabbing each in back of neck); State v. Hurt, 668 S.W.2d 206 (Mo.App.1984) (nineteen-year old, penitentiary inmate, killed cellmate by stabbing him more than sixty times; life term imposed); State v. Scott, 651 S.W.2d 199 (Mo.App.1983) (sixteen-year old; life imprisonment; robbed elderly couple at gunpoint, then stabbed wife twenty-two times; husband, also stabbed multiple times, survived).

In State v. Lashley, 678 S.W.2d 712 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984), the victim was stabbed in an area of her head where a section of skull had been surgically removed, exposing a “soft spot.” Defendant was “seventeen years and one month old” as of the killing. His motive was to rob his fifty-five-year old, handicapped cousin; he did so in a manner described as “classic lying in wait.” Id. 678 S.W.2d at 716. Wilkins’ crime fits this genre. See § 565.-032.2(4), RSMo 1986. But more is involved *422here, making Lashley distinct.9 In none of the above, Lashley, Battle, Blair, Beck, Greathouse, Baskerville, Allen, Scott, Hurt, or White, was the nature of the defendant such as to raise serious question, as here, whether the defendant should be held so completely responsible for his conduct that we should affirm his sentence.10

At age ten, Wilkins was referred to TriCounty Mental Health Center. For the next four to five years, excepting a seven-month probationary period at home, defendant underwent evaluation, treatment and detention at various Missouri institutions. He was diagnosed as possessing a borderline personality, schizotypal personality, and perhaps developing schizophrenia.11 He was withdrawn, isolated, depressed, impulsive, displaying intermittent episodes of paranoid functioning. On at least two occasions, he was prescribed anti-psychotic medication. Officials at Critten-ton Center expressed concern that defendant was at risk for violent, destructive, or self-destructive acts.12 Indeed, Wilkins had on a number of occasions attempted suicide by cutting his wrist, overdosing on medication or illegal drugs, and leaping from a bridge into the path of a passing car.

Dr. Logan, who examined defendant to determine his competence to proceed below, intimated that Wilkins’ heavy drug use was tied to his cognitive functioning.13 Dr. Parwatikar, who interviewed Wilkins at this Court’s instance to determine his competency to waive appellate counsel, suggested defendant’s youth, in turn, was a feature which distinguished his mental and emotional make-up from a mere antisocial condition.

Dr. Logan testified below that Wilkins “suffered from an ongoing emotional disturbance” of “profound” proportion; he reported that defendant’s actions on July 27, 1985, could not be divorced from his psychopathology. Even though Wilkins’ condition could not be termed a legally recognized mental disease or defect, Chapter 552, RSMo 1986, Logan submitted in his report that:

This is not to say that defendant did not suffer from significant impairment in his mental functioning as a result of mental disease which at the time of the crime hindered his emotional realization of the nature, quality, and wrongfulness of his conduct, and hindered his cognitive control of his conduct ...”

On these facts, considering defendant’s age, and his significant cognitive-emotional disorder, and connected, extensive drug abuse, we hold the sentence excessive and disproportionate. Consistent with this holding, we reduce Wilkins’ sentence to life imprisonment without possibility of probation or parole barring executive act.14

*423After argument and submission, this cause was assigned to me for opinion. That opinion, which is set forth above, was rejected by the majority of the Court. I respectfully dissent.

. Defendant filed no after-trial motions or notice of appeal in this case. Counsel appointed to represent defendant in proceedings before this Court have briefed and argued numerous points of law. We decline to review these at this time, given our disposition of the case. We intend no suggestion as to the merit of counsel's claims which may be grounds for post-conviction relief under Rule 27.26; defendant may pursue such relief at his option.

.Wilkins was charged with first degree murder, § 565.020.2, RSMo 1986; armed criminal action, § 571.015, RSMo 1986; and unlawful use of a weapon, § 571.030.1, RSMo 1986.

. The court constantly reminded defendant of the wisdom of professional representation throughout these proceedings.

. The Court commends Mr. Duchardt’s service to the court below, under what undoubtedly were frustrating circumstances.

. Indicative of the leeway the trial judge afforded Wilkins, the court informed that in the interim it would consider any change of heart Wilkins entertained reference his plea to the murder charge. Defendant remained firm in his intention.

. Defendant waived trial by jury for the penalty phase of his murder trial. See § 565.030.4, RSMo 1986.

.Wilkins, from an early age, engaged in arsons, burglaries, and stealing. These activities were before the court for its consideration during sentencing, embodied in Wilkins’ juvenile records. § 211.321.1, RSMo 1986.

. Counsel invite the Court to consider whether sentencing a minor to die constitutes a per se violation of the Eighth Amendment of the Federal Constitution. We decline. Battle and Lash-ley state the law in Missouri barring contrary adjudication in the United States Supreme Court. See Thompson v. Oklahoma, — U.S. -, 107 S.Ct. 1284, 94 L.Ed.2d 143 cert granted, — U.S.-, 107 S.Ct. 1284-85, 94 L.Ed.2d 143 (1987).

. We also note "the issue ... is not whether any similar case can be found in which the jury imposed a [death] sentence, but whether the death sentence is excessive or disproportionate in light of 'similar cases’ as a whole." State v. Mallett, 732 S.W.2d 527, 542 (Mo. banc 1987).

. We do not ignore the carefully-planned and carefully-executed nature of this heinous offense. Nor do we take lightly defendant’s apparent disregard for the lives of others. We find only that Wilkins’ age, his mental and emotional instability, and extensive drug use coagulate, inseparably, to quicken the conclusion, in our view the only conclusion, that the ultimate price is an excessive one to be levied on this defendant.

. Wilkins’ brother was diagnosed a schizophrenic in 1982. His father was committed for a period of time in an Arkansas mental facility. On these bases, one examing psychiatrist suggested defendant’s dysfunctioning may have a genetic component.

. Examining psychiatrist William Logan indicated these actions were intimately bound with defendant's disorder.

. Defendant had used marijuana since he was five. He had abused inhalants, stimulants and depressants since age six. In the three summers prior to 1981, he estimated he had inhaled gasoline fumes on about 500 occasions. Since at least age ten or eleven, Wilkins had used LSD, by admission his favorite drug. On July 27, 1985, defendant ingested a home-made strain of the drug three times, the last at around 7:30 p.m. We find this drug use significant only to the extent it was a product of Wilkins’ disorder, and to the extent it lends greater force to our conclusion, considered in tandem with the other factors we find persuasive in reducing sentence.

. Defendant’s desire to obtain the death penalty is noteworthy only in that we find it impertinent to this or any review under section 565.-035. This Court will not permit a defendant to employ the judicial process as a vehicle for state-aided suicide.