State v. LaRette

BILLINGS, Judge.

Defendant Anthony J. LaRette, Jr., was sentenced to death for the capital murder of 18-year-old Mary Fleming. In this appeal he contends he was denied his statutory right to a speedy trial; the evidence was insufficient for the jury to find torture as an aggravating circumstance; torture or depravity of mind as aggravating circumstances gives the jury a roving commission to return the death penalty; Missouri’s death penalty statutes are unconstitutional; the evidence fell short of demonstrating deliberation and premeditation; the death penalty is excessive and disproportionate in this case; and, the trial court erred in certain evidentiary rulings. We affirm.

In our determination of whether there was sufficient substantial evidence to support the guilty verdict of capital murder, we consider the facts in evidence and all favorable inferences reasonably to be drawn therefrom in the light most favorable to the State and disregard all contrary evidence and inferences. State v. Franco, 544 S.W.2d 533 (Mo. banc 1977), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

Mary Fleming lived with her mother and sister in an apartment complex in St. Charles, Missouri. Her mother left for work about 6:30 a.m. the morning of July 25, 1980, and the sister left for work approximately thirty minutes later. The mother exited the apartment by the back door, locking it. The sister locked the front door when she left the apartment. Mary was still asleep.

A grocery store is located adjacent to the apartment complex and at 10:30 a.m. Mary, wearing a swimming suit bikini top and cutoff jeans, cashed a check and purchased groceries. She was seen walking towards her apartment a short time later. During this same time frame a cream-colored convertible automobile had been seen slowly circling the neighborhood. There was only *99one individual in the convertible, a white man, the driver.

Sometime between 10:30 and 11:00 a.m. a friend of Mary Fleming, Mary Ellen Som-merville, telephoned the Fleming apartment. A strange male voice answered the telephone. Mary Ellen asked to speak to Mary. The male voice said she was not there and asked who was calling. The girl replied “Elly” and the male voice said he would have Mary call her back and hung up. Mary Ellen testified the male voice “was a high pitched voice because he seemed to be laughing or something, being in a good mood or maybe drinking or something.” Because Mary Ellen had talked with Mary Fleming earlier that morning and did not know the voice that answered the telephone and “it was kind of weird,” she immediately dialed the Fleming number again. There was no answer.

At approximately 11:00 a.m. a man, identified as defendant, was seen running from the direction of the apartment complex to a cream-colored convertible automobile which was parked on the grocery store parking lot. Defendant got into the vehicle and drove away. At about the same time a man and his wife who lived in another apartment complex behind and across a yard and street from the Fleming apartment saw Mary running towards their home. She was bloody and naked except for the bikini top which had been pulled up, exposing her breasts. She made it to the front door of the neighbors’ apartment before she collapsed, bleeding profusely. Police and medical aid arrived shortly. Despite on-the-scene and hospital emergency medical efforts, Mary died shortly thereafter.

Death was attributed to the young blond girl having bled to death. Her throat had been cut from ear to ear by a sharp instrument and photographic exhibits graphically illustrate she was nearly decapitated. She had two stab wounds to the chest, one of which penetrated her lung, the second penetrating her heart. The second stab wound had passed through the heart, leaving the tip of a metal blade in her lung. Her forehead and right arm were bruised and she had numerous cuts, termed “defense wounds”, to her fingers and hands.

An examination of the Fleming apartment quickly demonstrated it was the scene of the bloody slaying. In the front living room there was a pair of cutoff jeans on the floor, blood and hair on the walls, blood on the end and coffee tables, and a large puddle of blood in the middle of the floor. An unopened and blood splattered purse, containing money, was on a coffee table. In a hallway between the living room and kitchen was a trail of blood. Female panties, spotted with blood, were on the kitchen floor. The back door was blood smeared and there was a trail of blood across the back porch and steps. A burner on the kitchen stove was still on and a pot of water with eggs in it were on the burner. A partially completed green salad was on a kitchen counter.

For several days before July 25 defendant had been staying with Richard Roberson. On that Friday morning defendant was dressed in light trousers and a button shirt. He drove Roberson to work in Roberson’s yellow Buick convertible and borrowed the car “to go on a job interview”. Defendant picked Roberson up at 1:15 p.m. and at that time was dressed in a t-shirt and cutoff jeans. Roberson never again saw the clothing defendant was wearing Friday morning.

Two days later, Sunday, Roberson drove defendant to defendant’s parents’ home in Topeka, Kansas. As Roberson was leaving for the return trip, defendant said: “If you have any problems down there, call me and I’ll take care of them.” Roberson did not know what defendant was talking about.

By Tuesday, July 29, Roberson became concerned because of news articles which appeared to link his convertible with the killing. He called defendant in Topeka but defendant was reluctant to talk about the murder over the telephone. Further telephone calls elicited admissions from the defendant that he had killed the 18-year-old girl. Defendant said he first saw the girl when she was cashing a check at the gro-*100eery store and he followed her back to her apartment. He said he had thrown the murder weapon, a stilleto-type lock blade knife, in the river. He told Roberson that he went into the Fleming apartment for the purpose of burglarizing it and the victim walked in on him. He said he struck the girl and knocked her down; that he had stabbed her; and, cut her throat as she attempted to run away from him. Although he had earlier told Roberson he did not know why he had killed the girl, he later said she started yelling and tried to run. At the time of one of the telephone conversations a police officer at Roberson’s residence listened on an extension telephone and heard the defendant say the knife he used was in the river and he planned to stay away from his parents’ home for thirty days until “the heat was off.”

St. Charles detectives first questioned defendant about the murder early in the morning of August 7,1980, in the Shawnee County jail in Topeka, Kansas, after first giving him Miranda1 warnings and having him initial and sign a printed form which explained his constitutional rights. When he was asked about his involvement in the crime he put his hands over his eyes and said: “I’m responsible for her death.” In this interview he told the officers he had picked up a hitchhiker near Roberson’s house and the hitchhiker asked him if he would take him to the house of a girl who owed him some money. He said he drove the hitchhiker to a grocery store parking lot and parked at the edge of the lot next to some apartments. The hitchhiker got out of the car and went into one of the apartments. After waiting about 15 minutes he got worried about the hitchhiker and went to the front door of the apartment and looked inside. He said the hitchhiker was either standing or bending over a girl. The girl was covered with blood. The hitchhiker was stabbing her while she was pleading for her life. He said the hitchhiker ran out of the front door of the apartment when he entered it. He told the officers the girl’s throat was cut but he wasn’t worried about that too much because she wasn’t gurgling, but was worried about the stab wounds to her chest and tried to apply direct pressure to her chest to stop the bleeding. The girl started fighting him and broke away and ran out the back door. He had her blood all over his hands, was scared, and ran out the front door.

Later that morning at the Shawnee County jail, a deputy sheriff was advising defendant of his extradition rights. During the course of this procedure the defendant exclaimed: “I tried to choke her first but I couldn’t. She promised not to scream, but she lied to me. I caused an 18-year-old to die.”

Defendant was returned to St. Charles that day and interviewed again that evening. He was again advised of his constitutional rights and signed another written waiver. He told the officers he took the hitchhiker to the girl’s apartment but said that when he went to find the hitchhiker he saw him either kneeling or laying on the girl; that the hitchhiker’s pants were pulled down and his buttocks exposed, and there was blood all over the girl. In this version he told the officers the hitchhiker ran out the back door of the apartment. When the officers related what witnesses had told them about the convertible circling the neighborhood and neighbors had seen only Mary Fleming exiting via the back door, defendant began crying and admitted there was no hitchhiker and said “I did it.”

Defendant then told the officers he entered the Fleming apartment by means of an unlocked rear door to burglarize the apartment. He first went downstairs and then came back up the stairs and the victim was standing in her living room and had already removed her shorts. He had the knife in his hand and grabbed her and told her he did not want to hurt her, “not to scream, that all he wanted to do was get the hell out of there.” He said the girl agreed not to scream and he let her go. He said she started to scream and “[TJhat is when it happened. She lied to me. She promised me she wouldn’t scream.” De*101fendant said she was just like “... all the others. My wife and my mother-in-law always lied to me. If she hadn’t lied to me it wouldn’t have happened.” Defendant then told the officers he did not remember what happened after the girl started screaming and that he left by the front door and went to Roberson’s car.

At trial defendant presented evidence but did not testify.

Defendant was arraigned on November 21, 1980, in the Circuit Court of St. Charles County and trial commenced in the Warren County Circuit Court on August 11, 1981. He contends he was denied his statutory right to a speedy trial under § 545.780, RSMo 1978.

At the time of defendant’s arraignment, the parties consented that the case be continued until December for the setting of various motions. On January 7, 1981, defendant filed a motion to dismiss or in the alternative to compel the State to elect to proceed on one of the alternative charges [capital murder and/or murder in the first degree] and this was followed by defendant’s motion for a change of venue on January 14,1981. The case was lodged in Warren County on January 27,1981, and set for trial on May 28, 1981. On April 20, 1981, defendant filed a motion to remove the case from the trial docket because the transcript of his preliminary hearing had not been completed, nor had the transcript of a deposed witness. The State consented to the motion and the court, treating it as one for continuance, found “[T]he ends of justice served by the granting of such continuance outweighs the best interests of the public and the defendant in a speedy trial” and found that the transcript of the preliminary hearing had not been made available to the defendant and further discovery might be necessary upon the transcript being completed. The case was reset for June 11, 1981. On June 3, 1981, the State filed a motion to continue the case because the transcript, being prepared from tape recordings by the State Court Administrator’s Office, had not yet been completed. On the same date the court entered an order continuing the case to August 11, 1981, the order reciting the continuance was for the same reasons as set forth in the formal order of April 20, 1981.

Section 545.780, RSMo 1978, expressly excludes periods of delay resulting from hearings on pretrial motions, resulting from a change of venue, and continuances based upon findings by the trial court that the ends of justice served by taking such action outweigh the benefits of a speedy trial. Here, the delays in bringing the defendant to trial within the statutory 180 days were attributable to delays occasioned by pre-trial motions, change of venue, and continuances because of the preparation of the preliminary hearing transcript. The defendant has failed to sustain his burden that the failure to bring him to trial within the statutory period was occasioned by the State. State v. Franco, 625 S.W.2d 596 (Mo.1981); State v. Newberry, 605 S.W.2d 117 (Mo.1980).

Defendant avers there was insufficient evidence for the jury to find torture as an aggravating circumstance. He notes that under § 565.012, RSMo 1980 Supp., the death penalty cannot be imposed unless one of the statutory aggravating circumstances in that section is found by the jury. The particular subparagraph of § 565.012.2(7), which is applicable to this case provides:

The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind.

In this case the jury, in imposing the death sentence, found the offense was outrageously or wantonly vile, horrible or inhuman because defendant’s acts involved both torture and depravity.2

We believe the evidence surrounding the brutal, heinous, and senseless slaying of the 18-year-old victim in this case fully warranted the jury to find both aggravating *102circumstances. It is obvious that Mary Fleming had ample opportunity to anticipate her death and her slaughter-type killing supports the further finding of depravity of mind. Her body bore mute and stark evidence of the serious physical abuse and pain and suffering she endured in her futile struggle for life. The photographic exhibits, as well as the medical testimony, demonstrate the bruising of her head and arm, the cuts or defense wounds to her hands and fingers, the stab wounds to her chest and the near decapitation by reason of her throat having been cut from ear to ear. These matters and the physical evidence in the apartment suggest she was pursued from one end of the apartment to the other as defendant struck, stabbed and slashed her. A large pool of blood and her cutoff jeans were on the living room floor. Blood and hair were on the living room wall and blood was splattered over various articles of furniture in that room. There was blood on the doorway between the living room and kitchen, as well as on the floor of the hallway. Female panties, blood splattered, were on the kitchen floor. The trail of blood was evident on the rear door, across the porch, and down the steps as the girl, practically naked, made her way across the street to the neighbor’s front door.

The State suggests the jury could have well concluded that defendant was describing what actually transpired when he told the officers the phantom hitchhiker was kneeling or laying on the girl with his pants down and she was pleading for her life as she was being repeatedly stabbed. Aside from this, we are of the opinion the evidence was sufficient and substantial to support the finding of both statutory aggravating circumstances. Mary Fleming had no quick death and had substantial time to contemplate her fate. State v. Blair, 638 S.W.2d 739 (Mo. banc 1982). Furthermore, as noted in State v. Mercer, 618 S.W.2d 1, 10 (Mo. banc 1981), where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstances does not taint the proceedings so as to invalidate the other aggravating circumstance found and the sentence of death thereon. Having found the threshold requirements of statutory aggravating circumstances, the jury could also consider the defendant’s prior convictions3, including rape, together with all of the evidence adduced at trial, in imposing the death sentence. State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982).

Defendant’s contention that § 565.012.-2(7), RSMo 1980 Supp., is facially violative of the United States and Missouri Constitutions has been expressly considered and rejected by this Court. State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982), cert. denied, - U.S. -, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). Newlon and State v. Bolder, 635 S.W.2d 673 (Mo. banc 1982), likewise rejected defendant’s further contention that Missouri’s death penalty fails to measure up to constitutional standards.

Defendant next contends the evidence was insufficient to demonstrate the elements of deliberation and premeditation necessary for capital murder. In State v. Craig, 642 S.W.2d 98, 101 (Mo. banc 1982), we said:

There need not be direct evidence of premeditation and deliberation to support a capital murder conviction; indirect evidence and inferences reasonably drawn from circumstances surrounding the murder are sufficient. State v. Turner, 623 S.W.2d 4, 7 (Mo. banc 1981). Premeditation is present if the accused reflects on his act for any length of time prior to the act. Deliberation is found when an act is performed with a cool and deliberate state of mind. Id. at 7; State v. Strickland, 609 S.W.2d 392, 394 (Mo. banc 1980).

The jury could reasonably find that defendant, armed with a sharp, stilleto type lock-blade knife, drove slowly around the *103neighborhood where the victim’s apartment was located looking for a female target; that upon seeing the young and attractive girl, attired in cutoff jeans and a bikini top, he admittedly followed her to her apartment for the express purpose of committing a crime; that the jury could reasonably find, contrary to his hitchhiker and burglary versions, that he entered the apartment for the purpose of sexually assaulting the girl. Such an inference can be drawn from the physical facts observed in the apartment. The obvious struggle in the living room where her shorts were found. The bloody trail to the kitchen where her panties were on the floor. The bikini top pulled up, exposing her breasts. Defendant said the victim lied to him because she promised him she would not scream and because she did scream he did “it”. This statement, in itself, demonstrates defendant deliberated his action prior to stabbing, cutting and killing Mary Fleming.

A killing through the use of a deadly weapon on a vital part of the body of the victim is sufficient to permit a finding of intent to kill. Strickland, supra, at 394. The jury could have found from the number and serious nature of the knife wounds that defendant was practically certain to cause Mary Fleming’s death. And, the previously demonstrated intent to kill provided deliberation. State v. Bolder, supra at 673.

On the record before us, the jury could reasonably find defendant intended to take the life of the girl and acted with the necessary premeditation and deliberation.

Defendant’s complaint regarding the admission of the testimony of the Shawnee County Deputy Sheriff because this officer had not given him Miranda warnings prior to interrogating him is totally without merit. Contrary to defendant’s unsupported assertion, the evidence clearly shows there was no interrogation of defendant by the Kansas officer concerning the killing of Mary Fleming.

Aside from the fact defendant had previously been given Miranda warnings and signed a waiver, the uncontradicted evidence was that during the course of the deputy’s advising defendant of his rights with regard to extradition, defendant spontaneously volunteered: “I tried to choke her first, but I couldn’t .... She promised not to scream, but she lied to me ... . I caused an 18-year-old girl to die.”

There being no interrogation of defendant by the deputy sheriff when defendant made the incriminating statement and the statement being unsolicited and volunteered, it was properly admitted. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. O’Toole, 619 S.W.2d 804 (Mo.App.1981).

The trial court properly excluded defendant’s proffered evidence regarding obscene telephone calls received by Mary Fleming during the year prior to her slaying. Disconnected and remote acts, outside the crime itself, cannot be separately proved for the purpose of pointing up someone other than the accused; and evidence which can have no other effect other than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another is not admissible. 22A C.J.S. Criminal Law § 622b at 451; State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982); State v. Umfrees, 433 S.W.2d 284 (Mo. banc 1968). Defendant’s suggestion that the person responsible for the obscene telephone calls may have been the killer ignores defendant’s multiple admissions that he choked, struck, slashed and stabbed Mary Fleming.

Defendant’s assignment of error in the admission of the cutoff shorts, panties, and shoes because the evidence did not establish they belonged to the victim is denied. Demonstrative evidence is admissible if it throws any relevant light upon a material matter in issue. State v. Bolder, supra, at 688. Articles, instruments and weapons that have a tendency to explain the manner in which a crime is committed that are found at or near the scene of the crime are generally admissible. State v. Neal, 591 S.W.2d 178 (Mo.App.1979). Such evidence is usually held admissible if it tends to connect the defendant with the *104crime, prove the identity of the deceased, shows the nature of any wounds, or throws any relevant light upon any material matter in issue. State v. Williams, 606 S.W.2d 254 (Mo.App.1980). Mary was wearing cutoff jeans when defendant followed her to her apartment. The articles of clothing, their condition, and location within the apartment support the State’s theory that defendant was pursuing his victim and removing her clothing as he was attacking her with his knife.

Defendant levels a double-barreled attack on the trial court’s admitting his statements to the St. Charles police officers who first questioned him in Topeka and later at St. Charles. He first claims the statements were constitutionally infirm because he had been deprived of sleep, food and drink, and his physical and mental condition; secondly, his request to return to his cell in Topeka because he was tired and hurting, was an assertion of his right to remain silent and the subsequent questioning at St. Charles violated this right.

Out of the hearing of the jury, an eviden-tiary hearing was conducted on the voluntary nature of defendant’s statements. Defendant did not testify but the court heard the testimony of the St. Charles officers, the stipulated testimony of a Topeka medical doctor, and had before it the waiver forms executed by the defendant.

As a result of self-inflicted superficial wounds and cuts, defendant was treated in the emergency room of a Topeka hospital late in the afternoon of August 6. He remained at the hospital until shortly after midnight and was taken by Kansas officers to the Shawnee County jail: St. Charles detectives went to the jail at about 3:00 a.m. and asked defendant if he felt up to talking to them about a homicide in St. Charles on July 25. Defendant replied “yes” and asked for and received a cigarette. Miranda warnings were given and defendant signed a “Constitutional Rights” waiver form. After defendant had related his first version of the hitchhiker being the killer, he told the detectives “I’m tired and I’m hurting and I would like to go back to my cell.” No further questions were asked and defendant was returned to his cell. The interview had lasted approximately thirty minutes.

The St. Charles officers picked defendant up at the jail between 10:30 and 11:00 that morning for the return trip to St. Charles. On the trip the defendant slept most of the five to six hours it took to drive from Topeka to St. Charles. Enroute the defendant requested and was given a soda. Defendant was lodged in the St. Charles jail and at some point prior to his second questioning by the detectives he was given a hamburger and coffee. The second interview commenced about 7:40 p.m. and before defendant was questioned he was again given the Miranda warnings and signed a waiver form. At no time did the defendant indicate he did not want to talk to the officers, nor did he complain of being tired, hungry, thirsty or in pain. The trial judge found and determined that both statements of the defendant were voluntarily given. The jury was also instructed concerning the issue of voluntariness and told to disregard them if they found the statements were made involuntarily.

The record shows that defendant was given the warnings required by Miranda on the two occasions he was interviewed by the St. Charles detectives and that he understanding^ declined to exercise his right to remain silent. State v. Hughes, 596 S.W.2d 723 (Mo. banc 1980). As stated in Hughes, supra, at 726-27:

When a criminal defendant alleges that his inculpatory statements, made while he was held in custody, are not admissible because involuntarily made, the state must bear the burden of proving the vol-untariness of the confessions. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630,16 L.Ed.2d 694 (1966). A confession is admissible if the state proves by a preponderance of the evidence that it was voluntary. Lego v. Twomey, 404 U.S. 477, 482-87, 92 S.Ct. 619, 623-25, 30 L.Ed.2d 618 (1972); State v. Olds, 569 S.W.2d 745, 751-52 (Mo. banc 1978). The state must show that ‘defendant was ef*105fectively advised of his rights and he then intelligently and understanding^ declined to exercise them.’ State v. Alewine, 474 S.W.2d 848, 851 (Mo.1971).
The determination of the voluntariness of a statement is made in the first instance by the trial court. The trial court must determine the credibility of witnesses, and where evidence is in conflict, make factual findings. On appeal, the question is ‘whether the evidence was sufficient to sustain the trial court’s finding that the statement was voluntarily given.’ Alewine, 474 S.W.2d at 852.

We find there was sufficient evidence to support the trial court’s determination that defendant’s statements were voluntary, and to support a jury finding the defendant made the statements freely and voluntarily.

The trial court did not abuse its discretion in admitting photographs of the victim’s hands, portraying the “defense wounds”. Defendant avers that the coroner’s identification of the photographs as pictures of Mary’s hands was based upon only an identification bracelet which had been placed on her wrist by medical authorities.

A series of colored photographs of Mary Fleming’s bloody and mutilated body were taken by police and received as exhibits. The coroner had been advised of the victim’s name and after his examination filled out the official death certificate. A comparison of the photographic exhibits clearly show the hands depicted in exhibits 49 and 50 were a part of the series of photographs of the body of the slain girl.

The trial court is vested with broad discretion in the admission of photographic evidence. State v. Weekley, 621 S.W.2d 256 (Mo.1981); State v. Goodman, 608 S.W.2d 498 (Mo.App.1980); State v. Hines, 581 S.W.2d 109 (Mo.App.1979). Here, the coroner had testified as to the nature of the cuts to Mary’s hands before he identified the questioned photographs. We find no error.

Defendant’s final point of alleged trial error is novel but without legal support. He contends: “The trial court violated the defendant’s right to due process of law when it admitted photographs of an alleged get-away vehicle because the display of vehicles used by investigation officers was unduly suggestive in that the witnesses were allowed to choose between only two photographs.”

Defendant suggests we expand the constitutional safeguards surrounding the identification of criminal defendants [Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)] to automobiles. We decline to do so and find no error.

We turn now to defendant’s contention that the sentence of death in this case is excessive and disproportionate.

The General Assembly has mandated that this Court shall consider the matter of the death sentence being imposed and requires us to determine (§ 565.014.3, RSMo 1978):

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 565.012; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

We find nothing in the record to suggest the sentence resulted from the influence of passion, prejudice, or any other arbitrary factor. There was substantial evidence to support the jury’s finding of statutory aggravating circumstances. We conclude that considering the instant crime and the defendant in this case that the penalty imposed is not excessive nor disproportionate to the penalty imposed in similar cases. State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982).

The judgment is affirmed.

RENDLEN, C.J., and HIGGINS, GUNN and DONNELLY, JJ., concur. WELLIVER, J., concurs in result in separate opinion filed. *106ROBERT E. SEILER, Senior Judge, concurs in part and dissents in part in separate opinion filed. BLACKMAR, J., not participating because not a member of the Court at the time the cause was submitted.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. The jury also found the non-statutory aggravating circumstance that defendant had been convicted of rape in Kansas in 1974.

. In addition to defendant’s 1974 rape conviction the evidence in the punishment phase of the trial showed prior convictions for burglary, theft and pocket picking. Section 565.006.2, RSMo 1978. See: State v. Blair, 638 S.W.2d 739, 756 (Mo. banc 1982), cert. denied,-U.S. -, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983).