State v. McDonald

661 S.W.2d 497, 1983 Mo. LEXIS 451

• Court: Supreme Court of Missouri
• Decided: November 22, 1983
• Docket: 64057
• Status: Published

Opinions

BILLINGS, Judge.

Defendant Samuel Lee McDonald was jury-tried and convicted of the capital murder of Robert Jordan, an off-duty St. Louis County police officer, during the course of a robbery. The jury further found that the defendant committed the murder “for the purpose of receiving money or any other thing of monetary value by taking [Jordan’s] wallet” and fixed his punishment at death. The death sentence was duly imposed. We affirm.

Defendant contends the substantial evidence was insufficient to support his conviction. In ruling this issue, we consider the facts in evidence and all favorable inferences reasonably to be drawn therefrom in the light most favorable to the jury’s verdict 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).

On the evening of May 16, 1981, Robert Jordan, accompanied by his 11-year-old daughter, Rochelle, went to the Forest Package Liquor Store to purchase snacks for his family for the weekend. He was wearing civilian clothes and in accordance with departmental policy was carrying his police revolver, concealed. Father and daughter arrived at the store about 11:00 p.m., and after making purchases they started out of the store.

Defendant and Jacqueline Blue had been driving around in a car for several hours and at around 11:00 p.m., defendant parked the vehicle a short distance away from the Forest Package Liquor Store. Defendant told his companion he would be right back and shortly thereafter was seen standing on the street corner next to the liquor store.

As Jordan and his daughter emerged from the store with their groceries, defendant drew a pistol and accosted Jordan, firing one or more shots in the process. One of these shots wounded the officer in his chest and left arm and he fell to his knees. As the defendant stood with his pistol over the kneeling Jordan, Jordan handed him his wallet which contained his police badge. After receiving the wallet defendant began to turn away and then turned back and shot the officer again. The second bullet entered the left side of Jordan’s chest, penetrated his heart and lodged in his stomach wall. As defendant attempted to flee, the mortally-wounded officer drew his service revolver and fired several shots at defendant, striking him three times. Jordan stumbled back into the store and asked that the police be called. He died before or shortly after an ambulance arrived.

Rochelle Jordan ran back into the store after her father was shot the first time and she testified at trial as an eyewitness to her father’s execution. The robbery and shooting was also described at trial by two additional identification eyewitnesses, one viewing events from inside the liquor store and the other from across the street.

Defendant crawled back to the car and instructed Blue to drive him to the hospital. En route defendant changed his mind and told Blue to take him to a friend’s house. Blue drove to the house and found no one home. Defendant removed the shirt he was wearing and stuffed it down a sewer drain. After unsuccessfully attempting to locate friends for medical aid, defendant had Blue drive him to the Veteran’s Hospital. The parked car was later searched by police with Blue’s consent. Jordan’s wallet with the police badge was found in the rear seat. Defendant’s clothing was found in the trunk, where he had told Blue to put it. The pocket of his black leather jacket contained a gun with four fired shell casings. A blood-soaked shirt was retrieved from the sewer where Blue said it had been discarded.

From the foregoing, the jury could find, beyond a reasonable doubt, that defendant killed Jordan while engaged in robbing him.

Defendant further argues that his conviction of capital murder cannot stand because the evidence does not establish the essential element of “deliberation.” We disagree.

A deliberate act is one performed in a cool and deliberate state of mind. State v. LaRette, 648 S.W.2d 96, 102 (Mo. banc 1983); State v. Craig, 642 S.W.2d 98, 101-62 (Mo. banc 1982); State v. Strickland, 609 S.W.2d 392, 394 (Mo. banc 1980). No particular time is required to permit a finding of deliberation. The time may be very brief. State v. Wood, 596 S.W.2d 394, 400 (Mo. banc 1980); State v. Hatfield, 465 S.W.2d 468, 471 (Mo.1971).

On the record before us, the jury could reasonably find defendant intended to take the life of Officer Jordan and acted with the necessary premeditation and deliberation. Defendant was armed with a gun and seen standing near the liquor store minutes prior to the fatal shooting. The jury could reasonably find the entire course of defendant’s conduct a product of deliberation. Further, the fatal shot was not fired immediately after Jordan surrendered his wallet. Defendant started to turn away, then turned back, and inflicted the mortal wound. The requisite deliberation could have occurred at this time and the jury could have so found.

The defendant raises numerous points on appeal, some related to the guilty-innocence phase of the trial, and some applying only to the sentence.

Defendant complains that the trial court erred in denying him a mental examination pursuant to § 552.030, RSMo (Cum.Supp. 1982).

Subsection 2 of § 552.030 provides that a defendant is not entitled to an examination unless he either files a guilty plea of “not guilty by reason of mental disease or defect excluding responsibility,” or unless he files a written notice of his purpose to rely on such defense in a timely manner. Defendant’s theory was that he was entitled to a confidential psychiatric examination before deciding whether or not to invoke a defense of mental disease or defect. Defendant did not enter such a plea or give the statutory notice. The trial court cannot be faulted for following the statute and denying the requested examination. State v. Ingram, 607 S.W.2d 438, 440-41 (Mo. 1980); State ex rel. Jordon v. Mehan, 597 S.W.2d 724 (Mo.App.1980).

Defendant alleges several claims of trial error. In ruling on these points we take account of the very strong evidence that the defendant was guilty of the homicide.

During voir dire the trial judge asked members of the victim’s family to stand so that the jury could recognize them and avoid contact with them. We find no prejudice in this. When the defense counsel later protested this action, the judge made a similar request of the defendant’s family. These actions were properly within the duty and discretion of the trial court to take appropriate steps to prevent improper external influences upon jurors and potential jurors.

Defendant also alleges prejudicial error in allowing the victim’s widow, Emma Jordan, to testify and to remain in the courtroom thereafter. She explained her husband’s purpose in going to the store and for his carrying his concealed service revolver and identified her husband’s keys, gun, wallet and badge. She then testified about her trip to the store after the shooting. Mrs. Jordan’s testimony was relevant and there is no evidence in the record that Mrs. Jordan’s continued presence at trial prejudiced the defendant. The point is without merit.

Defendant’s complaint of prejudice in the trial court judge using his own judgment in checking on a disturbance and insisting that defense counsel not set up exhibits blocking his view of the defendant is equally without merit. Nor was there any prejudice in the court’s inquiring as to whether a defense witness called to impeach Jacqueline Blue on account of her alleged drug addiction and treatment had violated confidences.

Defendant claims the trial court improperly allowed Jacqueline Blue’s credibility to be bolstered by allowing reference to her prior consistent statements. Blue’s testimony was strongly corroborated by other evidence at trial and proof of defendant’s guilt was overwhelming. We find no prejudicial error.

We have carefully reviewed defendant’s averments of improper argument by the prosecutor in the guilt phase of the trial. We note that (1) no objection was made to the complained of argument and (2) the prosecutor’s remarks were in retaliation to defendant’s argument. We find no error, plain or otherwise, and deny the point.

Defendant avers that the death penalty should be set aside on the basis that the particular aggravating circumstance was not authorized. This conclusion is arrived at by a narrow and restrictive construction of § 565.012.2(4) which allows the death penalty upon a finding that the defendant committed the capital murder “for the purpose of receiving money or any other thing of monetary value.”

Defendant argues that a murder committed in the course of a robbery can never meet the requisite statutory language of § 565.012.2(4) because the term “receive” is not synonymous with “taking” in that the former requires a two-party transaction. This analysis is based upon prior cases involving the crime of receiving stolen property. The conclusion reached by defendant in comparing the meaning of “receiving” in two unrelated statutory contexts is misleading.

The meaning of “receiving” in the context of a receiving stolen goods statute has been defined in light of the purpose of the statute and its common sense relation to larceny statutes. One object in punishing a person as a receiver of stolen goods is to prevent the real thief from disposing of the goods and thereby lessening the chances of detection. If he is the principal actor in the theft, the actual captor of the property, it is illogical and contradictory to say he has received it from another. State v. Honig, 78 Mo. 249 (1888). A second reason for holding that the thief cannot receive stolen goods from himself is that his action, capturing the goods, is already covered under the larceny statutes and it would be duplicative to again cover the act with the receiving stolen goods statute.¹ See generally, 136 A.L.R. 1087 (1942). In other statutory context, the term “receive” is not determinative of a two-party transaction requirement. In United States v. Kelly, 519 F.2d 251 (8th Cir.1975), the Court answered affirmative to the question of whether a felon who steals a firearm may be convicted of “receiving” a firearm under 18 U.S.C. App. § 1202(a)(1). The court held that “a felon who acquires a weapon by theft, receives that weapon within the meaning of § 1202(a).” Id. at 253.

The rationale for interpreting the word “receiving” to require a two-party transaction in a receiving stolen goods statute is not present in the case of interpreting “receiving” in the context of § 565.012.2(4). The result is that the plain meaning of the term “receiving”² in § 565.012.2(4) should be given effect. See, State v. Kraus, 530 S.W.2d 684, 685 (Mo. banc 1975).

In Georgia, prior cases holding that the term “receive” within the context of a receiving stolen property context necessitated a two-party transaction³ were not determinative in construing the term in the state’s death penalty statute. Ga. § 27-2534.-1(b)(4) provides that if a murder is committed “for the purpose of receiving money or any other thing of monetary value, the death penalty may be imposed. This language mirrors that of § 565.012.2(4), RSMo. In Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8, cert. denied, 428 U.S. 911, 96 S.Ct. 3225, 49 L.Ed.2d 1219, reh’g denied, 429 U.S. 874, 97 S.Ct. 196, 50 L.Ed.2d 158 (1976), the Court held that a murder committed in the course of a $16.00 robbery was “for the purpose of receiving money and other things of monetary value.” 224 S.E.2d at 13.

Defendant argues that it would be improper to construe the “receiving money” aggravating circumstance to impose the death penalty in a situation where the legislature did not so intend. Defendant points to cases in Nebraska and Oklahoma as support for refusing to interpret this type of aggravating circumstance to cover robbery. Defendant’s attempt to limit § 565.012.2(4) to the hired gun situation is not warranted by a review of cases in other states.

Thirty-three states have death penalty statutes⁴ which contain aggravating circumstance provisions which clearly are applicable to the hired gun situation. Defendant’s position lumps all state aggravating circumstance statutes together as homogeneous. The precedential value of other state cases should be considered only in light of the varying language of those statutes.

The 33 states with hired gun aggravating circumstance statutes can be divided into four types. The first group of statutes are those similar to Missouri’s and cover “receiving money”. The Missouri language is identical to statutes in Georgia, Kentucky, Nevada, South Carolina and South Dakota.⁵ The most common statute provides for murder committed “for pecuniary gain.” This second type of statute is found in ten states.⁶ A third category of statutes cover murder “committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.” The remuneration statute exists in four states.⁷ A fourth and final category is a catchall group of statutes which explicitly provide that the aggravating circumstance is limited to the hired gun situation in no uncertain terms. Eleven statutes fall into this category⁸. Typical of this group is Ind.Code Ann., § 35-50-2-9 (Burns 1979), stating “The defendant who committed the murder was hired to kill,” and “The defendant committed the murder by hiring another person to kill.”

Obviously, states with statutes falling into the fourth category provide no insight into whether the Missouri statute, a category one statute, should be applied to a robbery situation. Likewise, category three states are of little help. “Remuneration”, plainly implies payment from one person to another in compensation for services.⁹ Despite this great dissimilarity between the Missouri statute and the remuneration statutes, defendant places great reliance on an Oklahoma case which interpreted that state’s remuneration statute and held it inapplicable in a robbery murder case. The holding in Boutwell v. State, 659 P.2d 322, 329 (Okl.Cr.1983), is hardly surprising. However, even in Boutwell, the Court noted that other states had statutes which would be broad enough to be applicable in a robbery context. 659 P.2d at 329.

Cases construing pecuniary gain statutes are important only in the sense that they are free from the restrictive language of category three remuneration and category four explicit hired gun statutes. Indeed, defendant takes great stock in the holding in State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874, cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198, reh’g. denied, 434 U.S. 988, 98 S.Ct. 622, 54 L.Ed.2d 485 (1977), which found that the Nebraska pecuniary gain statute did not apply to a murder committed in the course of a robbery. However, the Rust holding is clearly a minority view among states with pecuniary gain statutes.¹⁰

In State v. Irwin, 304 N.C. 93, 282 S.E.2d 439, 448 (1981), the North Carolina Supreme Court stated that “the aggravating circumstance of pecuniary gain will almost always be appropriately submitted to the jury where a murder is committed during the course of an armed robbery.” In State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981), the court again reiterated its position and commented on its prior holding in State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1971):

In Cherry, the murder was committed during the course of the robbery of a convenience store. The aggravating circumstance of ‘pecuniary gain’ was submitted and answered by the jury against the defendant. Although we remanded the case for a new sentencing hearing, we did not suggest in Cherry that this particular aggravating circumstance should not be submitted at the new hearing. We reject the position taken by the Nebraska Court that this aggravating circumstance does not apply to a murder committed during a robbery. See, State v. Rust, 197 Neb. 258, 250 N.W.2d 867 (1971). This aggravating circumstance, we hold, was properly submitted to the jury in both murder cases.

274 S.E.2d at 204-05. (Emphasis added).

In Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), the Arkansas Supreme Court held that the aggravating circumstance of pecuniary gain was “not limited to a killing for hire, but is also clearly applicable to a murder committed during a robbery.” Id. at 440. See also, Giles v. State, 261 Ark. 413, 549 S.W.2d 479, 483-84 (1977); Collins v. State, 261 Ark. 195, 548 S.W.2d 106, 122 (1977). In Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980), the court rejected defendant’s argument that the statutory meaning of “pecuniary” or “motive” was unconstitutionally vague in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Id. at 424, 100 S.Ct. at 1763. In Neal, the pecuniary gain aggravating circumstance was held proper in a murder committed in the course of a service station robbery.

Pecuniary gain statutes in Arizona¹¹, Mississippi¹², Florida¹³ and Maine¹⁴ have also been held to apply to murders committed during robberies and other property crimes.

Five states have statutes which use the identical language as that in § 565.012.2(4). The cases from these states are the most persuasive. As previously noted, in Pulliam v. State, Georgia held the statute applicable to a murder committed for robbery. This conclusion was reached despite earlier Georgia cases interpreting the state’s receiving stolen property statute to require a two-party transaction. In State v. Woomer, 277 S.C. 170, 284 S.E.2d 357 (1981), the defendant stole the victim’s coin collection and clothes, marched him into a back room and shot him to death. The court held that the trial court properly found that the defendant committed the murder for the purpose of receiving money or anything of monetary value. 284 S.E.2d at 358-59.¹⁵ The other three states have not addressed the instant issue.¹⁶

Defendant also argues that if the legislature had intended to include murder committed in the course of robbery as an aggravating circumstance it should have explicitly done so as have other states. This argument ignores the fact that five states that do have a separate statute covering robbery as an aggravating circumstance have nevertheless held pecuniary gain or receiving money statutes to also be proper instructions in robbery-murder cases. In Missouri, the application of the receiving money statute to murder in the course of robbery would not be duplicative of an existing aggravating circumstance and is thus even more reasonable.¹⁷

Defendant’s argument ignores the cases in Arkansas which have held that the Arkansas pecuniary gain statute is applicable to murders committed in the course of robbery. Arkansas, like Missouri, has no specific aggravating circumstance statute separately specifying robbery.

In State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982), cert. denied, - U.S. -, 103 S.Ct. 1263, 75 L.Ed.2d 488 (1983), the defendant’s taking the victim’s automobile, man’s watch and pendant watch was sufficient to authorize submission of the same aggravating circumstance submitted in this case. In the instant killing, defendant fatally shot Officer Jordan in the course of robbing him of his wallet. We conclude, therefore, that the aggravating circumstance of § 565.012.2(4) was properly submitted and supported by substantial evidence.

Defendant next avers the trial court erred in failing to sustain objections to several alleged prejudicial remarks made by the prosecutor during the penalty stage of the trial. Defendant claims the prosecutor made reference to unadmitted photographs, improperly remarked on the victim’s character, alleged deterrent effects of the death penalty unsupported by the evidence, improperly argued society’s right to defend itself, remarked that a life sentence could be reduced by legislative or executive action, and any sentence in the instant case would be subjected to repeated review.

In reviewing the record we are cognizant that broad discretion rests with the trial court to control closing argument, with wide latitude accorded counsel in their summaries. State v. Gilbert, 636 S.W.2d 940, 943 (Mo. banc 1982); State v. Olds, 603 S.W.2d 501, 511 (Mo. banc 1980). A trial court’s discretion in allowing or rejecting argument of counsel and its ruling are reversible only for an abuse of discretion where the argument is plainly unwarranted. State v. Armbruster, 641 S.W.2d 763, 766 (Mo.1982). The prosecutor has the right to argue reasonable inferences from the evidence, and additionally, he has the right to draw any inference from the evidence which he believes in good faith to be justified. Id. at 766. See also, State v. Brewer, 565 S.W.2d 801 (Mo.App.1978); State v. Burroughs, 559 S.W.2d 42 (Mo.App.1977). Further, in the penalty phase of a capital murder case both parties should be given wide latitude in arguing the matter of punishment. Gregg v. Georgia, 428 U.S. 153, 203-04, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976).

During argument the prosecutor made a single reference to pictures of the victim which were inside a manila folder at counsel’s table. In overruling an objection to this comment the trial court noted that no attempt was made to remove or display the pictures to the jury. We find no abuse of discretion.

The prosecutor’s brief and cursory remarks that the victim, Officer Jordan, was a “real nice man” was supported by the evidence in the record. The prosecutor’s argument regarding the deterrent purpose and propriety of the death penalty in the instant case were also supported by the evidence. Furthermore, we have long recognized that arguments on the deterrence of crime and the necessity of law enforcement and the need for society to protect itself need not have support in evidence, and such pleas may call upon common experience. State v. Newlon, 627 S.W.2d 606, 619 (Mo. banc), cert. denied, - U.S. -, 103 S.Ct. 185, 74 L.Ed.2d 149 reh’g. denied, - U.S. -, 103 S.Ct. 397, 74 L.Ed.2d 520 (1982); State v. McKinney, 475 S.W.2d 51, 55 (Mo.1971).

References to clemency and legislative intervention in reducing sentences have been held to be improper in Missouri. State v. Lewis, 443 S.W.2d 186, 189-90 (Mo.1969).¹⁸ But where the remarks were short and a small part of the closing statement, we have deferred to the discretion of the trial court and found no reversible error. State v. Murphy, 592 S.W.2d 727, 732 (Mo. banc 1979); State v. Sallee, 436 S.W.2d 246 (Mo.1969). This court has similarly treated brief remarks regarding the possibility of sentence reviews as insufficient basis for reversal. See, State v. Newlon, 627 S.W.2d at 617-19.

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 the statutory aggravating circumstance.

Finally, defendant argues the sentence of death in this case is excessive and disproportionate [“to the penalty imposed in similar cases, considering both the crime and the defendant.”]

Here, the defendant’s wounded victim was on his knees and handed his wallet over to defendant. The obvious inference from the evidence is that defendant spotted the officer’s police badge in the wallet and then callously and brutally proceeded to execute the wounded officer. In the words .of the experienced trial judge, the Honorable Daniel T. Tillman, in his report to this Court, the murder of Officer Jordan was a “Cold blooded assassination of [a] defenseless man.” Or, as this Court observed in State v. Newlon, “This was a senseless killing, a killing for killing’s sake.” 627 S.W.2d at 622.

The jury found, beyond a reasonable doubt, the “threshold requirement”, i.e., the presence of the statutory aggravating circumstance, and then considered all the evidence and recommended the death sentence. After taking into account both the crime and the defendant, we conclude the penalty assessed is not excessive or disproportionate to the penalties imposed in similar cases. In arriving at this conclusion we have reviewed the cases decided since the enactment of our current capital murder statute, § 565.001. The cases include those where the death sentences were affirmed, one case which reversed the death sentence because of its disproportionality, and capital cases in which the choice of death or life imprisonment without possibility of parole for fifty years was submitted to the jury.

The judgment is affirmed.

RENDLEN, C.J., and HIGGINS, GUNN and DONNELLY, JJ., concur. HOUSER, Senior Judge, concurs in part and dissents in part in separate opinion filed. BLACKMAR, J., concurs in part and dissents in part in separate opinion filed and concurs in the opinion of HOUSER, Senior Judge. WELLIVER, J., not sitting.

Execution date set for January 6, 1984.

APPENDIX

Ala.Code § 13A-5-49 (1982 Replacement Vol.)

(4) The capital offense was committed while the defendant was engaged or was an accomplice in the commission of or, an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, burglary or kidnapping;

(6) The capital offense was committed for pecuniary gain;

Ariz.Rev.Stat.Ann. § 13-703.F (1978)

4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.

5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, or anything of pecuniary value.

Ark.Stat.Ann. 41-1303(6) (1977)

(6) The capital murder was committed for pecuniary gain

Cal.Penal Code § 190.2(a) (West Cum.Supp. 1983)

(1) The murder was intentional and carried out for financial gain.

(17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:

(i) Robbery in violation of Section 211. Col.Rev.Stat. § 16-11-103 (1982 Cum. Supp.)

Repealed by amendment L. 79, p. 673 § 1.

Conn.Gen.Stat. § 53a-46a(g) (1983)

(1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony,”

(5) The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.

Del.Code Ann. tit. 11 § 4209(e) (1982 Cum. Supp.)

(l)(h) The defendant paid or was paid by another person or had agreed to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.

(l)(j) The murder was committed while the defendant was engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any degree of rape, arson, kidnapping, robbery, sodomy or burglary.

(l)(o) The murder was committed for pecuniary gain.

Fla.Stat.Ann. § 921.141(5) (West Cum. Supp.1983)

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

(f) The capital felony was committed for pecuniary gain.

Ga.Code Ann. § 27-2534.1 (1983)

(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:

(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony;

(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree;

(3) The offender, by his act of murder, armed robbery or kidnapping, knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;

(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value;

Idaho Code § 19-2515(f)(4) (1979)

(f) The murder was committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.

Ill.Rev.Stat. Ch. 38, § 9-l(b) (Smith-Hurd Cum.Supp.1983)

5. The defendant committed the murder pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder or procured another to commit the murder for money or anything of value; or

6. The murdered individual was killed in the course of another felony if:

(a) the murdered individual:

(i) was actually killed by the defendant, or

(ii) received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the defendant is legally accountable under Section 5-2 of this Code, and the physical injuries inflicted by either the defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered individual; and

(b) in performing the acts which caused the death of the murdered individual or which resulted in physical injuries personally inflicted by the defendant on the murdered individual under the circumstances of subdivision (ii) of subparagraph (a) of paragraph (6) of subsection (b) of this Section, the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another; and

(c) the other felony was one of the following: armed robbery, robbery, rape, deviate sexual assault, aggravated kidnapping, forcible detention, arson, aggravated arson, burglary, home invasion, indecent liberties with a child, or the attempt to commit any of the felonies listed in this subsection (c);

Ind.Gode Ann. § 35-50-2-9(b) (Burns 1979)

(1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery.

(4) The defendant who committed the murder was hired to kill.

(5) The defendant committed the murder by hiring another person to kill.

Ky.Rev.Stat.Ann. § 532.025(2)(a) (Bobbs-Merrill Cum.Supp.1983)

(2) The offense of murder or kidnapping was committed while the offender was engaged in the commission of arson in the first degree, robbery in the first degree, burglary in the first degree, or rape in the first degree, or sodomy in the first degree.

(4) The offender committed the offense of murder for himself for another, for the purpose of receiving money or any other thing of monetary value, or for other profit.

La.Rev.Stat.Ann. § 14:30 (West 1983)

(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing. Md.Ann.Code, art. 27, § 413(d) (1982)

(6) The defendant committed the murder pursuant to an agreement or contract for remuneration or the promise of remuneration to commit the murder.

(7) The defendant engaged or employed another person to commit the murder and the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration.

(10) The defendant committed the murder while committing or attempting to commit robbery, arson, or rape or sexual offense in the first degree.

Mass.Ann.Laws Ch. 279, § 69 (Michie/Law Co-op. Gum.Supp.1983)

(a) In all cases in which the death penalty may be authorized, the statutory aggravating circumstances are:

(5) the murder was committed by the defendant pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder;

(10) the murder was committed by the defendant and occurred during the commission or attempted commission or flight after committing or flight after attempting to commit aggravated rape, rape, rape of a child, indecent assault and battery on a child under fourteen, assault with intent to rape, assault on a child under sixteen years of age with intent to rape, kidnapping for ransom, kidnapping, armed robbery, unarmed robbery, breaking and entering with intent to commit a felony, armed assault in a dwelling, arson, confining or putting in fear or otherwise harming another for the purpose of stealing from depositories, or the murder occurred while the defendant was in possession of a sawed-off shotgun or a machine gun.

Miss.Code Ann. § 99-19-101(5) (Cum.Supp. 1982)

(d)The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy or the unlawful use or detonation of a bomb or explosive device.

(f) The capital offense was committed for pecuniary gain.

§ 565.012, RSMo 1982 Supp. ,

2. Statutory aggravating circumstances shall be limited to the following:

(4)The offender committed the offense of capital murder for himself or another, for the purpose of receiving money or any other thing of monetary value;

(6) The offender caused or directed another to commit capital murder or committed capital murder as an agent or employee of another person;

MontCode Ann. § 46-18-303 (1981)

[No relevant aggravating circumstance.] Neb.Rev.Stat. § 29-2523(1) (1977)

(c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant;

Nev.Rev.Stat. § 200.033 (1981)

(4) The murder was committed while the person was engaged, or was an accomplice, in the commission of or an attempt to commit or flight after committing or attempting to commit, any robbery, sexual assault, arson in the first degree, burglary or kidnapping in the first degree;

(6) The murder was committed by a person, for himself or another, for the purpose of receiving money or any other thing of monetary value.

N.H.Rev.Stat.Ann. § 630:5 II.(a) (Cum. Supp.1981)

(6) The murder was committed for pecuniary gain.

NJ.Stat.Ann. § 2C:ll-3(c)(4) (1982)

(d) The defendant committed the murder as consideration for the receipt, or in expectation of the receipt of any thing of pecuniary value;

(e) The defendant procured the commission of the offense by payment or promise of payment of anything of pecuniary value; N.C.Gen.Stat. § 15-A-2000(e) (Cum.Supp. 1981)

(5) The capital felony was committed while the defendant was engaged, or was an aider or abettor, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any homicide, robbery, rape, or a sex offense, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

(6) The capital felony was committed for pecuniary gain.

Ohio Rev.Code Ann. § 2929.04(A) (Baldwin Cum.Supp.1982)

(2) The offense was committed for hire;

(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary .... Oklahoma Stat.Ann. tit. 21 § 701.12 (1983)

(3) The person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the purpose of remuneration.

Pa.Cons.Stat.Ann. tit. 42 § 9711(d) (Purdon 1982)

(2) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.

(6) The defendant committed a killing while in the perpetration of a felony.

RJ.Gen.Laws Ann. § 11-23-2 (1981)

[No relevant aggravating circumstance.] S.C.Code Ann. § 16-8-20(0) (Law Co-op Cum.Supp.1982)

(a) Aggravating circumstances:

(1) Murder was committed while in the commission of the following crimes or acts: (a) rape, (b) assault with intent to ravish, (c) kidnapping, (d) burglary, (e) robbery while armed with a deadly weapon, (f) larceny with use of a deadly weapon, (g) housebreaking, and (h) killing by poison and (i) physical torture;

(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value;

S.D.Codified Laws Ann. § 23A-27A-1. (Supp.1983)

(3) The defendant committed the offense for himself or another, for the purpose of receiving money or any other thing of monetary value;

(5) The defendant caused or directed another to commit murder or committed murder as an agent or employee of another person;

Tenn.Code Ann. § 39-2-203(i) (1982)

(4) The defendant committed the murder for remuneration or the purpose of remuneration, or employed another to commit the murder for remuneration or the promise of remuneration.

(7) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.

Tex.Penal Code Ann. § 19.03(a) (Vernon 1974)

(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated rape, or arson;

(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.

Utah Code Ann. § 76-5-202(1) (1978)

(d) The homicide was committed while the actor was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, aggravated robbery, robbery, rape, forcible sodomy, or aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated kidnapping or kidnapping.

(f) The homicide was committed for pecuniary or other personal gain.

Va.Code § 18.2-31 (Cum.Supp.1983)

(b) The willful, deliberate and premeditated killing of any person by another for hire;

(d) The willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon.

Vt.Stat.Ann. tit. 13 § 2303 (Cum.Supp.1983)

[No relevant aggravating circumstance.]

Wash.Rev.Code Ann. § 10.95.020 (Cum. Supp.1982)

(4) The person committed the murder pursuant to an agreement that he or she would receive money or any other thing of value for committing the murder;

(5) The person solicited another person to commit the murder and had paid or had agreed to pay money or any other thing of value for committing the murder;

Wyo.Stat. § 6-2-102(h) (Supp.1983)

(iv) The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb.

(vi) The murder was committed for pecuniary gain.

1 . “[T]he taking and receiving, being but a single transaction, constitute, of course, only one crime.” Milanovich v. United States, 365 U.S. 551, 559, 81 S.Ct. 728, 732, 5 L.Ed.2d 773 (1961) (J. Frankfurter, dissenting).

2 . Webster’s defines receive as “to take possession or delivery of’. Webster’s Third New In-temational Dictionary, Unabridged, 1894 (1981).

3 . Clark v. State, 144 Ga.App. 69, 240 S.E.2d 270, 271 (1977); Wells v. State, 127 Ga.App. 109, 192 S.E.2d 567, 568 (1972); Austin v. State, 89 Ga.App. 866, 81 S.E.2d 508, 510 (1954).

4 . See Appendix.

5 . “The offender committed the offense of capital murder for himself or another, for the purpose of receiving money or any other thing of monetary value.” § 565.012.2(4), RSMo. See also, Ga.Code Ann. § 27-2534.1(b)(4) (1983); Ky.Rev.Stat.Ann. § 532.025(2)(a)(4) (Cum. Supp.1983); Nev.Rev.Stat. § 200.033(6) (1981); S.C.Code Ann., § 16-3-20(a)(4) (Law Co-op Cum.Supp.1982); and S.D.Codified Laws Ann. § 23A-27A-1. (Supp.1983). Compare, La.Rev. Stat.Ann. § 14:30 (West 1983).

6 . Ala., Ariz., Ark., Del., Fla., Miss., N.C., N.H., Utah, Wyo.. See also, Cal. “financial gain”.

7 . Idaho, Okla., Tenn., Tx..

8 . Conn., Ill., Ind., Md., Mass., Neb., N.J., Ohio, Pa., Va., Wash..

9 . 1. to pay an equivalent for (as a service loss, expense) 2. to pay an equivalent to (a person) for a service, loss or expense. Webster’s Third New International Dictionary, Unabridged, (1981).

10 . Alabama is the only other state to take this position. See, Ashlock v. State, 367 So.2d 560 (Ala.Cr.App.1978).

11 . State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 8-9 (1983); State v. Poland, 132 Ariz. 269, 645 P.2d 784, 800-01 (1982); State v. Blazak, 131 Ariz. 598, 643 P.2d 694, 701 (1981); State v. Clark, 126 Ariz. 428, 616 P.2d 888, 896, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

12 . See Tokman v. State, 435 So.2d 664 (Miss.1983); Hill v. State, 432 So.2d 427, 443 (Miss.1983); Smith v. State, 419 So.2d 563, 568 (Miss.1982).

13 . See Raulerson v. State, 420 So.2d 567, 571 (Fla.1982); Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977); See also, Menendez v. State, 419 So.2d 312, 315 (Fla.1982); White v. State, 403 So.2d 331, 337-38 (Fla.1981); Peek v. State, 395 So.2d 492, 499 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981).

14 .Maine does not have a capital punishment statute. However, the statute provides that a person is guilty of criminal homicide in the first degree if he commits criminal homicide in the second degree and the jury findsrone or more statutory aggravating circumstances. Me.Rev. Stat.Ann. tit. 17-A, § 201 (1975). In State v. Snow, 383 A.2d 1385 (Me.1978), the Maine Supreme Court rejected the defendant’s claim that the “pecuniary benefit” aggravating circumstance referred only to a hired killing or one who kills for insurance proceeds. In Snow, pecuniary benefit was held to apply to a murder committed during a robbery. The court explicitly rejected the holding reached by the Nebraska court in Rust and stated: “[l]t subverts the plain meaning of the words to require, as the defendant would have us do, that death be some kind of legal condition precedent to obtaining the pecuniary benefit. The construction we reach has been the view of a majority of courts which have construed similar language.” Id. at 1388.

15 . The court also said it was proper to submit two other aggravating circumstances; (1) robbery while armed with a deadly weapon, and (2) larceny with a deadly weapon. Id. at 358.

16 . In Nevada, the state supreme court declined to address the issue in a recent case upon finding the facts also fit the “hired gun” situation. Wilson v. State, 664 P.2d 328, 337 (Nev.1983).

17 .It is important to note that Missouri has a separate aggravating circumstance to cover the hired gun killing. Section 556.012.2(6). Any statutory construction seeking to minimize duplication and overlap of aggravating circumstances would attempt to give different effect to § 565.012.2(4) and (6). The construction urged by the defendant practically makes (4), the receiving money circumstance, a subset of (6), the explicit hired gun statute. The only unique situation covered by (4) would be killing for inheritance and insurance proceeds. It is very doubtful that the legislature intended this to be the limited purpose of (4). However, by construing (4) to apply to murders committed during robbery, an independent purpose and logical effect is given to § 565.012.2(4).

18 . We observe that the recent case of California v. Ramos, - U.S. -, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), 33 Cr.L. 3306, held the Constitution does not prohibit an instruction at the penalty stage of a capital case that informs the jury that a sentence of life imprisonment without the possibility of a parole may be commuted by the governor to a sentence that includes the possibility of a parole.