author: STEPHEN F. PRESLAR, Chief Justice.

text:
    COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. CHEVRON U.S.A., INC., Appellee.
    No. 08-83-00321-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 19, 1984.
    Rehearing Denied Jan. 16, 1985.
    James A. Williams, Kevin J. Keith, Bailey & Williams, Dallas, for appellant.
    S. Tom Morris, Gibson, Ochsner & Adkins, Amarillo, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This case involves the question of whether the contract to indemnify includes the indemnitee’s own negligence. The trial court held that it did not. We affirm.

The indemnity provision is contained in the contract whereby Chevron U.S.A., Inc. entered into a carbon-dioxide (C02 gas) purchase contract with El Paso Natural Gas Company, Plaintiffs insured and subrogor. The paragraph of the contract entitled “Indemnity” provided:

As between the parties hereto, Seller [El Paso Natural Gas] shall be deemed to be in exclusive control and possession of the ‘C02 gas’ prior to delivery hereunder and shall hold buyer [Chevron] harmless against any injury or damage caused thereby until same shall have been delivered to Buyer into Buyer’s facilities at the point of connection to the Plant system, after which Buyer shall be deemed to be exclusively in control and possession thereof and shall hold Seller harmless against any injury or damage caused thereby.

We have inserted the names El Paso Natural Gas and Chevron after Seller and Buyer in the contract. On March 27, 1975, after the C02 gas had passed the “point of connection” and entered Chevron’s facility and was in the process of being compressed, an explosion occurred causing damage to the plant and personal injury to Mr. Lloyd Coots. Commercial Union as insurer of El Paso Natural Gas has paid to a third-party $700,000.00 for damages to the plant and $20,794.36 to Mr. Coots as compensation for his personal injuries. Commercial Union filed this action to obtain indemnity for the amounts paid on behalf of El Paso Natural Gas. Both parties moved for summary judgment and in the order here appealed from, the court granted Chevron’s motion for summary judgment and denied Commercial Union’s motion.

In the suit out of which the settlement arose, the jury found both the Plaintiff and the Defendant El Paso guilty of acts of negligence, but the trial court disregarded the findings against the Plaintiff and entered judgment against El Paso. That is the judgment which was compromised and settled for $700,000.00. That settlement agreement provided that the motion for new trial which El Paso had filed would be allowed to expire by operation of law and that El Paso would not appeal the case. The effect of the agreement was to leave standing a final judgment with findings of negligence against El Paso. In the case before us then, Commercial Union, standing in the shoes of El Paso, is in the position of one seeking indemnity for its own negligence.

In order for an indemnity agreement to protect an indemnitee from the consequences of its own negligence, the obligation of the indemnitor to do so need not be stated in so many words, but must be expressed in clear and unequivocal terms. Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, 490 S.W.2d 818, 822 (Tex.1973); Sira & Payne, Inc. v. Wallace & Riddle, 484 S.W.2d 559, 561 (Tex.1972); Joe Adams & Son v. McCann Construction Company, 475 S.W.2d 721, 723 (Tex.1972). And it is said that Texas Courts have been progressively stricter in applying the “clear and unequivocal” rule in the sundry cases that have dealt with the issue over the last three decades. Eastman Kodak Company v. Exxon Corporation, 603 S.W.2d 208, 211 (Tex.1980). As noted in Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, supra, at 822:

We have [Texas Courts] ..., progressed toward the so-called ‘express negligence’ rule as near as is judicially possible without adopting it and thereby requiring in all cases that the parties state, in so many words, that they intend to save the indemnitee harmless from liability for his own negligence.

The reason for such a rule is apparent considering the purpose.

The obvious purpose of this rule is to prevent injustice. A contracting party should be upon fair notice that under his agreement and through no fault of his own, a large and ruinous award of damages may be assessed against him solely by reason of negligence attributable to the opposite contracting party.

Spence & Howe Construction Co. v. Gulf Oil Corporation, 365 S.W.2d 631, 634 (Tex.1963).

In the case before us, the parties used broad language saying “any injury or damage.” This is a blanket coverage and all encompassing, but it does not meet the test to cover one’s own negligence. In Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, supra, the Supreme Court said:

In this connection, it should be clear from our opinion in [Joe Adams & Son v.] McCann [Construction Company] supra [475 S.W.2d 721 (Tex.1971)], including its discussion of the leading cases and modification of our opinion in Ohio Oil Co. v. Smith, 365 S.W.2d 621 (Tex.1963), that broad general statements of the indemnity obligation are not sufficient to protect an indemnitee against his own negligence, and that the only presently recognized exceptions are limited to (1) agreements in which one person clearly undertakes to indemnify another against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality as in Mitchell’s Inc. v. Friedman, supra, [157 Tex. 424, 303 S.W.2d 775 (1957)], and Houston & T.C.R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204, 226 S.W. 140 (1920); (2) agreements which fall within the peculiar circumstances of the indemnitor having complete supervision over the property and employees of the indemnitee in connection with the performance of the in-demnitor’s contract, as in Spence & Howe, supra; and (3) contracts in which there is an unequivocal provision that indemnitor will protect and indemnify the indemnitee from any and all liability by reason of injuries to indemnitor’s employees as in Ohio Oil, supra.

The contract before us involves a purchase-sale and none of the three exceptions above cited apply. If it could be argued that (1) is applicable on the basis that a defective product was supplied, the end result is the same because these same rules will be applied in determining whether an agreement purports to indemnify one against the consequences of supplying a defective product. McKesson Chemical Company v. Phelps Dodge Corporation, 638 S.W.2d 64 (Tex.Civ.App.-Corpus Christi 1982, writ ref’d n.r.e.); Rourke v. Garza, 511 S.W.2d 331, 341 (Tex.Civ.App.-Houston [1st Dist.] 1974), affirmed, 530 S.W.2d 794 (Tex.1975). Considering the indemnity provision in the contract before us, as well as the remainder of the contract, we find no clear and unequivocal language showing that the contract was intended to indemnify El Paso against its own negligence.

Appellant’s final point of error addresses the issue of whether Appellant’s suit below was barred by the doctrines of res judicata, collateral estoppel and compromise settlement which were pled as affirmative defenses. We overrule this point of error without discussion since the previous points of error are dispositive of the case.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FENDER, Chief Justice.

license: Public Domain

text:
    M_ M_ M_, Appellant, v. CENTRAL STATE DEPOSITORY OF CRIMINAL RECORDS, Appellee.
    No. 2-84-130-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 19, 1984.

      Alley & Alley, and Richard Alley, Fort Worth, for appellant.
    J.D. Hooper, Asst. Atty. Gen., Austin, for appellee.
    Before FENDER, C.J., and HUGHES and JORDAN, JJ.
   OPINION

FENDER, Chief Justice.

This is an appeal from the trial court’s decision to grant a bill of review to the Central State Depository of Criminal Records of Texas (hereinafter CSD) which set aside a nunc pro tunc order directing that appellant’s criminal record be expunged.

We reverse and remand.

In July, 1982, appellant was convicted for theft and placed on probation. On January 21, 1983, appellant moved the court to set aside her probation and this motion was granted. Several days after this, on January 27, 1983, appellant filed a petition to have her criminal record expunged pursuant to TEX.CODE CRIM.PROC.ANN. art. 55.01 (Vernon 1984). On March 1, 1983, CSD filed a motion to dismiss the petition of expunction. The then visiting judge granted the motion to dismiss the petition of expunction. However, he did so in error, as he had intended to grant the petition of expunction. No action was taken on this mistake until August 18, 1983, at which time a nunc pro tunc hearing was held. After this hearing the visiting judge withdrew his earlier mistaken order and signed a nunc pro tunc order granting appellant’s petition for expunction.

CSD never received notice of appellant’s application for the order nunc pro tunc. Furthermore, CSD claims it failed to receive notice of the nunc pro tunc order until after the time for filing a timely appeal. When CSD finally did learn of this order it attempted to bring an untimely appeal in this Court; however, we denied their request. See Central State Depository of Criminal Records v. M_ M_ M_, 665 S.W.2d 562 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e.).

Because CSD was unable to obtain an appeal, it filed a bill of review on February 3, 1984, asking that the order nunc pro tunc be set aside and that the petition to expunge be dismissed. Appellant filed an answer and also filed special exceptions in which it claimed that CSD’s bill of review did not contain the necessary allegations necessary to support such an action. On March 23, appellant made a demand for a jury trial. After a hearing on April 4, 1984, the trial court granted CSD’s bill of review.

Appellant raises seven points of error. In point of error no. 1 appellant claims the trial court committed reversible error in denying appellant’s timely and properly made demand for a jury trial, made pursuant to TEX.R.CIV.P. 216. We agree.

TEX.R.CIV.P. 216 provides that “[n]o jury trial shall be had in any civil suit, unless application be made therefor ... a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance.” Under the case law construing TEX.R.CIV.P. 216, a demand for jury trial made more than ten days before the date set for trial can only be denied if there is some explanation in the record which justifies the denial. Coleman v. Sadler, 608 S.W.2d 344, 346 (Tex.Civ.App.-Amarillo 1980, no writ); W.L. Moody & Company, Bankers v. Yarbrough, 510 S.W.2d 396, 399 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n.r. e.). A showing in the record that a jury was unavailable at the time set for trial, or that a jury trial would have seriously disrupted the docket, will justify the denial of a jury trial. Id. at 399.

For the ease at bar there is no explanation anywhere in the record justifying the denial of appellant’s demand for a jury trial. The March 23 demand occurred 12 days before the April 4 hearing. In its brief, CSD argues that appellant demanded the jury trial only after the trial court had decided on March 23 that it would grant CSD’s bill of review. CSD contends that the trial court agreed to hold the hearing on April 4 only for purposes of making a record for appeal, and that in short it was just an accommodation to appellant.

We reject CSD’s argument because it is not borne out by the record. An examination of the docket sheet fails to show that any hearing was held prior to April 4. On March 23 there are two entries, one that the trial was set for April 4, and the other that a demand for jury trial had been filed. An inspection of the rest of the record fails to produce any evidence to support CSD’s claim that the April 4 hearing was conducted solely for the purpose of preparing a record. Appellant’s first point of error is sustained. Because of our disposition of point of error no. 1, we find it unnecessary to address appellant’s remaining points of error.

We reverse the judgment and remand for a new trial.


author: HUGHES, Justice.

text:
    Jack Thomas JACKSON, Appellant, v. The STATE of Texas, State.
    No. 2-84-167-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 19, 1984.
    H. Dale Bailey, Amarillo, for appellant.
    R.J. Thornton, County Atty., Plainview, for the State.
    Before HUGHES, BURDOCK and HILL, JJ.
   OPINION

HUGHES, Justice.

Jack Thomas Jackson has appealed his conviction for the misdemeanor offense of driving while intoxicated. He was tried by a jury and found guilty. The jury assessed punishment at two (2) years in the county jail in Hale County, Texas, and a fine of five hundred dollars ($500.00). The appellant filed a motion for new trial based on jury misconduct, which was denied.

For reasons stated below, we reverse and render.

On August 8,1982, appellant was driving south on Business U.S. Highway 87 in Plainview, Texas when he stopped at a red light. A Plainview patrolman brought his vehicle alongside appellant’s and reportedly observed what “appeared to be a beer bottle” in appellant’s right hand being held up slightly. When the signal light turned green, appellant proceeded south and was followed for approximately four blocks by the patrolman.

The patrolman said appellant committed no traffic violations and pulled over promptly after the patrolman activated his lights. The patrolman asked appellant to step to the rear of the car, which he did. The patrolman also asked appellant to take a field sobriety test, which he refused to do. The patrolman reported that appellant swayed when he walked, had bloodshot eyes, a heavy smell of alcohol, slurred speech, and was, in his opinion, very drunk.

Appellant objected to the admission of the patrolman’s testimony that appellant refused to take a field sobriety test on grounds that a field sobriety test is not required. The objection was overruled, but appellant was given a running objection to preserve the error for appeal.

The appellant’s seventh ground of error complains that there was no probable cause to stop appellant’s vehicle. We agree.

The arresting officer testified that his only reason to suspect appellant of driving while intoxicated was that he observed appellant holding what appeared to be a beer bottle. He did not even see appellant drink from the bottle. The officer testified that appellant violated no traffic laws and that he pulled over promptly after the officer flashed his lights.

The law of probable cause to stop and detain a person requires that a “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” “And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

“The inarticulate hunch, suspicion or good faith of an arresting officer is insufficient to constitute probable cause for an arrest, search or temporary detention.” Leighton v. State, 544 S.W.2d 394, 397 (Tex.Crim.App.1976). “Where events are as consistent with innocent activity as with criminal activity, detention based on those events is unlawful.” Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Crim.App.1978).

Since Texas does not have an “Open Container Law,” the act of drinking while driving is not an offense as long as the driver is not intoxicated. By presuming that appellant was intoxicated, the officer was acting on a hunch. The beer which appellant was drinking could have been his first beer or his sixth. The sole fact of holding a beer bottle was no less consistent with the former than with the latter.

We interpret the law to mean that the events upon which an officer bases his probable cause to stop a ear must be more consistent with criminal activity than with innocent activity. If the events are equally consistent with innocent activity as with criminal activity, then the officer cannot draw any reasonable conclusions from his observations and there is no probable cause.

One factually similar case was McDougald, v. State, 547 S.W.2d 40 (Tex.Crim.App.1977), where the appellant’s conviction was reversed based on an illegal stop. In that case, the arresting officer had seen the appellant leave the scene of a domestic disturbance in an angry state of mind at approximately 2:00 a.m. Three hours later, the same officer observed the appellant driving along the highway and pulled him over. The officer saw a gun inside the car and arrested the appellant for illegal possession of a firearm by a convicted felon. The officer testified that the appellant had violated no traffic laws, that he did not know where the appellant had been since leaving him earlier, that he had no idea that appellant had done anything wrong, and that appellant was just driving around. Under these facts, the Court of Criminal Appeals concluded that the officer was not authorized to make an investigatory stop of appellant.

We think the logic of McDougald, id., should be followed in this case. Appellant violated no traffic laws and gave the officer no basis to reasonably infer that appellant was intoxicated. We hold, therefore, that the officer did not have probable cause to stop the appellant’s car and that the appellant’s conviction was in error.

Reversed and rendered.


author: DUNN, Judge.

text:
    Daniel Dale TINNELL, Appellant, v. Judy Ann TINNELL (now West), Appellee.
    Court of Appeals of Kentucky.
    Dec. 21, 1984.
    Joe Martin, Jr., Louisville, for appellant.
    Walter Alan Sholar, Shepherdsville, for appellee.
    Before HAYES, C.J., and REYNOLDS and DUNN, JJ.
   DUNN, Judge.

This appeal is from an order of the Bul-litt Circuit Court awarding appellee $20,-508.80 due from appellant as arrearages in child support. The parties’ marriage was terminated by divorce on August 24, 1971, as a result of which the appellee was granted custody of their four minor children and the appellant ordered to provide $40.00 per week in child support. With the exception of approximately one year during which a portion of his social security benefits were forwarded directly to the appellee by the Cabinet for Human Resources, the appellant has failed to meet his child support obligations. No attempt was made to enforce the order for support, however, until July 29, 1983, when the appellee filed a motion for a common-law judgment against the appellant in Bullitt Circuit Court. The appellant defended this action on the basis of an oral modification of the original support order concluded by himself and the appellee which released him from his support obligations in exchange for his surrender of visitation rights. After a hearing on this issue, the trial court granted the appel-lee’s motion for a common-law judgment on the basis of its belief that Kentucky law does not authorize the private, oral modification of arrangements for child support. Consequently, no specific factual finding was necessary regarding the existence or non-existence of such an agreement between the parties. As we believe that the trial court’s decision was grounded on an erroneous conclusion of law, we reverse and remand the decision of the Bullitt Circuit Court for further proceedings consistent with this opinion.

The ability of the parties to privately modify the terms of such judgment for child support without prior judicial approval has long been recognized by the Kentucky courts. See Story v. Story, Ky., 423 S.W.2d 907 (1968); Davis v. Davis, Ky., 431 S.W.2d 866 (1968); Ruby v. Shouse, Ky., 476 S.W.2d 823 (1972). As long as such agreements can be proven by their proponents with reasonable certainty, courts can enforce them against the parties without having given prior approval to the alteration in the context of a motion to modify child support. In fact, the case now before the Court, where there has been an attempt to obtain an award of arrearages, presents the classic factual pattern for the adjudication of the binding nature of private modifications of child support.

In its mistaken belief that the law would not countenance such arrangements, the trial court granted the appellee’s request for arrearages without making any determination as to whether the parties in the case at bar had actually agreed between themselves to release the appellant from his duty to pay child support. This question is now of central importance in this dispute. It is, however, essentially an issue of fact which is for the trial court to decide. Story, supra. Accordingly, we REVERSE and REMAND to the Bullitt Circuit Court for further proceedings not inconsistent with this opinion.

All concur.


author: COOPER, Judge.

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. ALL STATE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 28, 1984.
    J.D. Raine, Sr., Louisville, for appellant.
    James C. Hickey, Louisville, for appellee.
    Before COOPER, DUNN and MILLER, JJ.
   COOPER, Judge.

This is an appeal from a judgment for the appellant, plaintiff below, in a subrogation action by an insured’s reparation obli-gor against a tortfeasor’s insurer to recover work loss benefits paid to the insured. On appeal, the single issue is whether the trial court erred, as a matter of law, in ruling that the appellant could not recover the full amount of such payments paid to the insured, given the fact that the insured received payments from a collateral source. Reviewing the record below, we reverse and remand.

The essential facts relative to this action are as follows: In June of 1979, Nellie Atkinson, a passenger in an automobile operated by Gloria George, was injured when the automobile in which she was riding was rear-ended by an automobile operated by Nathaniel Cunningham. Subsequent to an action being filed by Atkinson against Cunningham, an agreed order dismissing was entered settling that action. Thereafter, the appellant, Kentucky Farm Bureau Mutual Insurance Company, the insurer or reparation obligor for the George vehicle, filed an intervening complaint against the appellee, All State Insurance Company, to recover basic reparation benefits it had paid on Atkinson’s behalf. A portion of the claim was for $3,666.00, which it paid to Atkinson for work loss she had sustained as a result of the accident and her subsequent injuries. The appellee contested this portion of the claim, alleging that the insured had not sustained a work loss in the amount set forth by the appellant, as she had recovered specific dollar amounts paid to her under a union contract during the time she was unable to work. Specifically, the appellee alleged that the amount of the insured’s actual work loss was $1,597.56, rather than the $4,614.50 paid by the appellant.

Subsequent to the action being submitted to the trial court on joint motions for summary judgment, the trial court entered a partial judgment for the appellant with respect to its claim for work loss benefits. Specifically, it allowed recovery of $1,597.56 against the appellee representing the work loss actually sustained by the insured. It is from such judgment the appellant now appeals.

On appeal, the single issue is whether the trial court erred, as a matter of law, in ruling that the work loss sustained by the insured was that amount of loss actually sustained by her. Here, the trial court held that the ruling of the Court in Rankin v. Blue Grass Boys Ranch, Inc., Ky., 469 S.W.2d 767 (1971), was controlling notwithstanding the statutory provisions of the Kentucky Motor Vehicle Reparations Act. In effect, it held that the amount of work loss sustained by an insured is affected by any payments received from collateral sources. Reviewing the record below, we reverse the trial court’s judgment.

The purpose underlying the Kentucky Motor Vehicle Reparations Act is, in the language of the Court in Fann v. McGuffey, Ky., 534 S.W.2d 770, 773 (1975), to provide for prompt payment to those individuals suffering injury in automobile accidents for any economic loss “consisting of medical expense, loss of work income, expense for assistance _” Basic reparation benefits are to provide reimbursement for net loss. KRS 304.39-020(2). Under KRS 304.39-020(5)(b), “work loss” is defined as follows:

“Work loss” means loss of income from work the injured person would probably have performed if he had not been injured ... reduced by any income from substitute work actually performed by him....

Furthermore, subsection (10) of the statute defines net loss as follows:

(10) “Net loss” means loss less benefits or advantages, from sources other than basic and added reparation insurance, required to be substracted from loss in calculating net loss.

And, KRS 304.39-120 — prior to its amendment in 1982 — specified how net loss is to be calculated:

(1) All benefits or advantages a person receives or is entitled to receive because of the injury from social security and workers’ compensation are subtracted in calculating net loss.
(2) If a benefit or advantage received to compensate for loss of income because of injury, whether from basic reparation benefits or from any source of benefits or advantages subtracted under subsection (1), is not taxable income, the income tax saving that is attributable to this loss of income because of injury is subtracted in calculating net loss. Subtraction may not exceed fifteen percent (15%) of the loss of income and shall be in a lesser amount if the claimant furnishes to the insurer reasonable proof of a lower value of the income tax advantage.

Notwithstanding the policy underlying the Act, KRS 304.39-120, in specifying how net loss is to be calculated, allowed only-social security payments and workers’ compensation benefits to be subtracted from the benefits received. No other statutory exceptions were allowed. The language of the statute, as it expressed the intention of the legislature, is controlling herein. Consequently, the trial court’s judgment must be reversed.

Furthermore, although the trial court relied on the language of the Court in Rankin, supra, the ruling of the Court in Davidson v. Vogler, Ky., 507 S.W.2d 160 (1974), is more apposite. There, the Court modified the ruling to the effect that payments to an injured employee pursuant to a policy of sick pay or vacation pay, shall not be considered in determining the employee’s actual wage loss. Under both Vogler-decided prior to the enactment of the K.M.V.R.A. — and the language of the Act, the appellant is entitled to recover the full amount of the benefits paid to its insured.

The judgment below is reversed with directions that the trial court amend its judgment to allow the appellant to recover the full amount of the work loss benefits it paid to its insured, or $3,666.00.

All concur.


text:
    Ted Robert OGLE, Appellant, v. Diane Louise OGLE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 28, 1984.

      G. William Blackburn, Jr., Peter Oster-miller, Louisville, for appellant.
    Marcia L. Sparks, Louisville, for appel-lee.
    Before HAYES, C.J., and HOWARD and DUNN, JJ.
   DUNN, Judge.

This is an appeal of an order of the Jefferson Circuit Court dismissing the appellant’s motion for a reduction of both his child support and maintenance obligations. The trial court’s action was grounded upon its belief that the pendency before this Court of an appeal of the original judgment awarding child support and maintenance deprived it of subject matter jurisdiction over the request for modification under the rule of Penrod v. Penrod, Ky., 489 S.W.2d 524 (1972). We disagree, however, and remand with instructions that the Jefferson Circuit Court take appropriate action for an adjudication of the appellant’s request for modification.

The parties’ marriage of 14 years’ duration was ended by a decree of dissolution entered by the Jefferson Circuit Court on June 17, 1982. A supplemental decree dated October 22, 1982, ordered the appellant, Ted Ogle, to pay child support in the amount of $1,000 per month (to be reduced to $750 per month during the children’s summer vacation) until the children’s eighteenth birthdays and maintenance on a permanent basis of $150 per month. Upon the trial court’s denial of his motion for alteration or amendment of judgment under CR 59.05, the appellant filed an appeal of the award of both maintenance and child support with this Court on November 22, 1982.

During the pendency of that appeal, the appellant returned to Jefferson Circuit Court where, on March 24, 1983, he filed a motion for modification of maintenance and child support under KRS 403.250(1). Specifically, the appellant requested the complete termination of maintenance and the reduction of child support from $1,000 to $300 per month based upon serious business setbacks which had resulted in a substantial reduction of his income. The ap-pellee, Diane Ogle, resisted the attempt at modification by means of a motion for dismissal grounded upon Penrod, supra at 527 in which our then Court of Appeals reaffirmed the general rule that “... after an appeal has been perfected the trial court may not change or modify the judgment forming the basis of the appeal.”

She argues that the rule of Penrod effectively deprived the Jefferson Circuit Court of jurisdiction over the motion for modification as any action regarding that request would certainly affect the original judgment granting child support and maintenance which was the subject of the appeal pending before this Court. The Jefferson Circuit Court agreed and dismissed the appellant’s motion for modification. He seeks review of that order by this Court.

Upon a consideration of Penrod, the nature of KRS 403.250 proceedings, and guidance afforded by precedents from other jurisdictions, we have concluded that Penrod is not to be read so broadly. While we do not dispute the appellee’s assertion that Penrod stands for the proposition that a trial court is without jurisdiction to take any action that would change or modify a judgment which is the basis of a pending appeal, we must note that that case is equally important for the exception which it carves out from that rule. In Penrod the Court recognized the authority of a trial court to enter orders enforcing an award of maintenance or an order fixing maintenance pending appeal when the original maintenance award was the subject of a pending appeal. In so doing the court stated that “... a trial court has continuing jurisdiction to enter supplementary and ancillary post-judgment orders ...” (emphasis added). Id. at 527.

A motion for modification of maintenance and child support made pursuant to KRS 403.250(1) is such an “ancillary, post-judgment” proceeding over which a trial court may exercise jurisdiction during the pendency of the initial award. Although we can cite no Kentucky authority supportive of this proposition, an examination of the relevant statutes contained in KRS Chapter 403 indicates the soundness of our conclusion.

KRS 403.200, the statute authorizing the award of maintenance in the context of dissolution proceedings, focuses upon the relative financial resources and needs of each spouse. Likewise, KRS 403.210 for purposes of awarding child support directs a similar comparison of the needs of the child in light of each parents’ respective economic means. Conversely KRS 403.-250(1), which sets forth the grounds for a modification of maintenance and child support, directs the circuit court to make an entirely different inquiry. Beginning with the assumption that the award of support and maintenance was proper when initially made, KRS 403.250(1) looks to whether there has been a substantial and continuing change in the conditions that underlay that decree so as to render its continued enforcement unconscionable. By its very terms, a motion for modification under KRS 403.250(1) can concern only those developments that occur subsequent to the original award of support and maintenance and are therefore not subject to review should an appeal be taken from that original judgment.

Furthermore, we would note that KRS 403.250(1) contains no limitation upon the time during which a motion for modification can be made; rather such actions would appear to be proper at any time so long as there has been a sufficiently substantial change of circumstances to justify a change. As a result of these fundamental differences, we believe that a motion for modification of child support and maintenance falls within the scope of the “ancillary, post-judgment” proceedings exception described in Penrod, over which a trial court may exercise jurisdiction even during the pendency of an appeal of the original award. See also, In Re Marriage of Petramale, 102 Ill.App.3d 1049, 58 Ill.Dec. 537, 430 N.E.2d 569 (1981); Giamanco v. Giamanco, 111 Ill.App.3d 1017, 67 Ill.Dec. 606, 444 N.E.2d 1090 (1982); Martin v. Martin, 5 Kan.App.2d 670, 623 P.2d 527 (1981).

As a final comment, we observe that in determining that the pendency of an appeal of an award of maintenance and child support does not deprive a trial court of jurisdiction over a motion for modification for that judgment pursuant to KRS 403.250(1), it is not our intention to create a new means of attacking such a judgment in addition to that of appellate review. To merit relief under KRS 403.250(1), a showing of a substantial and continuing change in condition is still incumbent upon the moving party and a circuit court may still summarily dispose of motions for modification which are insufficiently grounded on such exigent circumstances. Should it appear that the motion for modification is not so founded, but is merely an additional attack on maintenance and child support as originally granted, the trial court in its sound discretion may properly refuse to exercise jurisdiction during the pendency of an appeal of that same question.

The order of the Jefferson Circuit Court is VACATED and this case is REMANDED for proceedings not inconsistent with this opinion.

All concur.


author: BLACKMAR, Judge. WELLIVER, Judge, DONNELLY, Judge,

text:
    BLUE CROSS HOSPITAL SERVICE, INC. OF MISSOURI, et al., Plaintiffs-Respondents/Cross-Appellants, v. J.H. FRAPPIER, Director, Department of Consumer Affairs, et al., Defendants-Respondents, The Missouri Psychological Association, a Missouri not-for-profit corp., Intervenor-Defendant/Respondent, Missouri Pharmaceutical Association, et al., Intervenors-Defendants-Appellants/Cross-Respondents.
    No. 65881.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.
    Rehearing Denied Jan. 15, 1985.

      Robert F. Schlafly, Henry J. Mohrman, St. Louis, Mike Dallmeyer, Jefferson City, Max Bagby, Kansas City, for plaintiffs-respondents/cross-appellants.
    John Ashcroft, Atty. Gen., Richard L. Wieler, Melodie A. Powell, Asst. Attys. Gen., Jefferson City, for defendants-respondents.
    Harvey Tettlebaum, Duane Benton, Jefferson City, Daniel P. Card II, David B. Lacks, St. Louis, Thomas J. Downey, Jefferson City, for intervenor-defendant-appel-lant-cross-respondents.
   BLACKMAR, Judge.

The plaintiffs are health service corporations organized under Chapter 354, RSMo 1978. Plaintiff Blue Cross and Blue Shield of Kansas City hs 450,000 members; plaintiff Blue Cross Hospital Service, Inc. of Missouri has 780,000 members and plaintiff Missouri Medical Service has 650,000 members.

The plaintiffs provide payment for medical care incurred by subscribing members. They make payment directly to providers and maintain separate contractual agreements with subscribers and health care providers. By contrast, commercial insurers customarily reimburse policyholders directly. Plaintiffs claim that this arrangement allows them some control over the charges of health care providers.

In 1983 the General Assembly in a single bill adopted an addition to § 375.936(ll)(b), RSMo 1978 and also amended Chapter 354. The amendments, among other things, forbade health service corporations to discriminate against chiropractors and psychologists, which plaintiffs had refused to pay as a matter of policy. The plaintiffs claim unconstitutionality, both as to the legislative procedures and the substantive effects of the statute.

House Bill 127 as introduced had the following title:

An Act to repeal section 375.936 RSMo 1978, relating to the definition of unfair practices in the business of insurance, and to enact in lieu thereof one new section relating to the same subject. [Plaintiffs’ Exhibit 1.]

Its only effect was to add the word “psychologist” to the practitioners listed in subsection 11(b).

Section 375.936 had been in force since 1959. One of its purposes was to prohibit “unfair discrimination” by insurance companies among providers of health care. The section had not been applied to health service corporations until 1978. In the course of its journey through the General Assembly, portions of other bills were combined with House Bill 127. The bill, as finally adopted, contained 94 new sections relating to Chapter 354 corporations. The title was broadened to make express reference to the regulation -of health service corporations.

The plaintiffs’ petition charged that House Bill 127 was unconstitutional, asserting that: (1) the amendments during passage changed its original purpose in violation of Art. Ill, § 21 of the Missouri Constitution; (2) the bill deals with more than one subject, the content of which is not clearly expressed in the title, as required by Art. Ill, § 23; (3) the bill impairs the obligation of contracts in violation of Art. I, §■ 13 of the Missouri Constitution and Art. I, § 10 of the United States Constitution; (4) the bill violates the due process clauses of the federal and state Constitutions; (5) the bill deprives persons in the position of plaintiffs of equal protection of laws in violation of the Fourteenth Amendment; and (6) the provisions of the bill are preempted by ERISA, 29 U.S.C. § 1001, et seq.

The trial court found for the plaintiffs on grounds (1) and (2) specified above, and found it unnecessary to pass on the remaining grounds alleged. Both parties appeal, the plaintiffs contending that the court should have declared the statutes invalid under ERISA. We conclude that none of the reasons assigned for invalidity has merit, and so reverse the judgment and remand with directions to declare the statute valid as against the challenges tendered.

1. Legislative History

Statutes are presumed to be constitutional. State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982), cert. denied 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). In the leading recent case on the permissible scope of amendments during the course of legislation, Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2 (Mo. banc 1984), this Court upheld the validity of a statute with a history similar to that of the statute now before us. House Bill 127, in its original form, prohibited insurance companies and health service corporations from discriminating against psychologists. Amendments were later added that provided broader anti-discriminatory measures. The amendments did not constitute a substantial departure from the original anti-discriminatory purpose. Amendments germane to the initial bill do not change its original purpose. State v. Ludwig, 322 S.W.2d 841 (Mo. banc 1959). Art. III, § 21 was not designed to inhibit the normal legislative processes, in which bills are combined and additions necessary to comply with the legislative intent are made. The plaintiffs have not met their rather substantial task of showing that the legislative history rendered the statute unconstitutional.

Plaintiff relies on Allied Mutual Ins. Co. v. Bell, 353 Mo. 891, 185 S.W.2d 4 (1945). This Court held that a statute was unconstitutional because it introduced a tax which was not within the purpose of the original bill. The Court emphasized that the original purpose of the bill was not included in the law as passed. The original House Bill 127 remained part of the final House Bill 127. The general purpose of the bill was not changed, but rather additions were made. The modification of the title to reflect the added provisions is permissible. Lincoln Credit Co. v. Peach, 636 S.W.2d 31 (Mo. banc 1982).

The title, also, is not constitutionally infirm. The title of the Original House Bill 127 read as follows:

An Act to repeal section 375.936 RSMo 1978, relating to the definition of unfair practices in the business of insurance, and to enact in lieu thereof one new section relating to the same subject. [Plaintiffs’ Exhibit 1.]
The title of the revised bill is as follows: An Act to repeal sections [listing sections] relating to the regulation of certain corporations and other organizations which provide services or coverage for certain health related risks, and to enact in lieu thereof ninety-five new sections relating to the same subject. [Plaintiffs’ Exhibit 4]. [Section numbers omitted].

We believe that the title fairly describes the subject matter of the adopted bill. A title need not give specific details of a bill. An announcement of the general subject matter is sufficient to give notice of the bill’s content. Downey v. Schrader, 353 Mo. 40, 182 S.W.2d 320 (Mo. banc 1944); Edwards v. B.M.A., 350 Mo. 666, 168 S.W.2d 82 (1942). The purpose of the “one subject” mandate is to give interested persons notice of the area of regulation to prevent deception through use of misleading titles, and to maintain the concept of germaneness. This requirement is satisfied if the title is sufficient to alert persons interested in the subject matter. Union Electric Co. v. Kirkpatrick, 606 S.W.2d 658 (Mo. banc 1980). The original title clearly applied to plaintiffs, for Section 375.932(3) provides that § 375.936 applies to Chapter 354 corporations. Plaintiffs had the opportunity for notice, at that point, that the bill was pending. The amended title clearly refers to the regulation of health service corporations and all of the added sections are germane to this regulation. The test is whether all provisions of the bill fairly relate to the subject expressed in the title, have natural connections therewith or are incidents or means to accomplish the expressed purpose. Westin Crown Plaza Hotel Co. v. King, supra. The title gave the public adequate notice that health service corporations were to be regulated.

2. Substantive Constitutional Provisions

The plaintiffs fail to demonstrate any unconstitutional impairment of their contracts. A law which affects a contract does not necessarily violate'Art. I, § 13 of the Constitution of Missouri and Art. I, § 10 of the Constitution of the United States. Private executory contracts are not immune from the valid exercise of the police power, and persons cannot oust the state of its police power by making long-term contractual arrangements. State ex rel. Kansas City v. Public Service Commission, 524 S.W.2d 855 (Mo. banc 1975). The police power exists to promote the public health, safety and welfare. Providing freedom of choice as to health care providers is clearly within the scope of this power. An exercise of the police power is valid if the objective is proper and the means adopted to accomplish that object are rationally related to the end sought. Missouri Dental Board v. Alexander, 628 S.W.2d 646 (Mo. banc 1982). Forbidding health service corporations from discriminating against certain health care providers is a rational method of ensuring freedom of choice in the health care market.

Plaintiff cites Ketcham v. King County Medical Service Corp., 81 Wash.2d 565, 502 P.2d 1197 (1972), as authority that this type of “freedom of choice” statute unconstitutionally impairs contracts. We disagree with the logic of that decision. The Washington court viewed the purpose of the statute to be one of taking benefits from one class of providers and giving them to another. The opinion also revealed a strong bias against optometrists. The primary purpose of House Bill 127, as we see it, is to provide freedom of choice among health care providers. This is a matter of importance to the public health which falls within the police power of the state.

The test of substantive due process is met if a statute has a rational relationship to a legitimate state interest. United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). There is an obvious state interest in providing freedom of choice for health care consumers, and the statute bears a rational relationship to that interest. State policies are for the legislature to decide and legislative decisions should be reversed only upon a clear showing of unconstitutionality. Plaintiffs’ due process argument has no merit.

Plaintiffs claim a violation of the equal protection clause of the Fourteenth Amendment because §§ 354.027 and 354.090.2 apply only to health service corporations. Section 354.027 provides that such corporations must pay any licensed provider even though the corporation has no contract with the provider. Commercial insurance companies generally do not have provider contracts, and a provision of this kind is not necessary in the regulation of these companies. Section 375.936(ll)(b) prevents insurance companies from discriminating against an extensive list of licensed providers in the provision of policy benefits. Section 354.090.2 would compel plaintiffs to recognize the assignment of membership benefits to a pharmacist as valid. Commercial insurance companies would not ordinarily discriminate among pharmacists because they do not usually make payments to pharmacists, and plaintiffs fail to demonstrate that this section places them at a invidious disadvantage.

The equal protection clause guarantees equal treatment for all who are similarly situated but does not forbid a state from creating classes in the adoption of regulations under its police power. City of St. Louis v. Liberman, 547 S.W.2d 452 (Mo. banc 1977). The state may validly regulate health service corporations in a manner differing from the regulation of commercial insurers. The two are organized under different chapters of the state code. Each provides insurance by different methods. Plaintiffs’ own witness testified that there is a rational basis for treating health service corporations in a different way. The statutes contain several chapters, each applying to a different class of insurer, and the provisions show substantial variation. Plaintiffs are not members of a suspect class, nor does the statute involve fundamental personal rights. Plaintiffs, therefore, have the burden of showing that any distinction is purely arbitrary. Such a showing has not been made. When the substantial differences between nonprofit hospital and medical service corporations and commercial insurance carriers are considered, the legislature, in exercising its police powers, may classify nonprofit corporations as separate from commercial insurers. Hospital Service Corp. of Rhode Island v. West, 112 R.I. 164, 308 A.2d 489 (1973). With this power goes the authority to regulate the industries differently if the regulation is reasonable.

On this point, plaintiff again relies on a decision from another state. Blue Cross v. Commonwealth of Virginia, 221 Va. 349, 269 S.E.2d 827 (1980). An anti-discrimination statute exempted commercial insurance companies from 1973 until 1979. Missouri already has a statute, § 375.-936(ll)(b), prohibiting discrimination by commercial insurers. The statute does not impose an onerous burden on the plaintiff. We also disagree with the Virginia Court’s holding that there are no differences between health service corporations and commercial insurers which justify differing regulation.

3. ERISA Preemption

Plaintiffs’ final argument is that House Bill 127 is preempted by certain provisions of ERISA, 29 U.S.C. § 1144. ERISA, however, excepts “any law of any state which regulates insurance ...” 29 U.S.C. § 1144(b)(2)(A).

The plaintiffs argue that health service corporations are not engaged in the “business of insurance.” Our legislature in § 375.947 has decreed otherwise, in regard to the anti-discrimination statutes involved in this case. The plaintiffs admit that they are in competition with insurance companies. They accept a predetermined premium from customers, in exchange for payment of future medical expenses. The spreading of risk, as practiced by plaintiffs, is the hallmark of insurance. The insurance exemption contained in the McCarran Ferguson Act, 15 U.S.C. § 1012(b), is not identical to the exemption for state laws regulating insurance contained in ERISA. The McCarran Ferguson Act grants exemption from the federal antitrust laws which declare a strong national policy, and the exemption should be grudgingly applied. Group Life & Health Ins. Co. v. Royal Drug, 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979).

Plaintiffs contend that McCarran Ferguson cases are authoritative in construing preemption clause contained in ER-ISA. ERISA gives specific permission to the states to regulate insurance, and the states should be permitted to determine the scope and extent of the desired regulation. Congress, furthermore, specifically enumerated certain entities which are not to be considered insurance companies for ERISA preemption. 29 U.S.C. § 1144(b)(2)(B). Health service corporations were not included in this group. We believe that plaintiffs are within the insurance exemption of ERISA for purposes of state regulation.

We are not convinced, in any event, that, aside from the insurance exemption, the challenged legislation is preempted by ERISA. ERISA preempts any state law relating to employee benefit plans. Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). The statute in question does not relate to employee benefit plans. It prohibits health service corporations from engaging in certain discriminatory practices. Nothing is required of an employee benefit plan. The plan may provide, or not provide, any bargained for service. A self-insured plan is free to discriminate among providers. Commercial insurers, however, may not discriminate among licensed providers. This Court previously held there is no indication in the legislative history of ERISA that Congress intended to preempt areas of state regulation not addressed by ERISA. Electrical Workers, Local No. 1, Credit Union v. IBEW-NECA Holiday Trust Fund, 583 S.W.2d 154 (Mo. banc 1979). Indirect regulation of employee benefit plans is permissible provided the regulation does not interfere with the purpose of ERISA. ERISA is intended to establish minimum standards and safeguards for private pensions while maximizing the freedom of decision making by employers and employees. H.R.Rep. No. 533, 93 Cong.2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639. Nothing in House Bill 127 conflicts with these purposes.

Our holding is consistent with Wadsworth v. Whaland, 562 F.2d 70 (1st Cir. 1977) cert. denied 435 U.S. 980, 98 S.Ct. 1630, 56 L.Ed.2d 72 (1978) (opinion by Judge Lay of the Eighth Circuit). That Court held that a state statute requiring the issuers of group health insurance policies to provide coverage for the treatment of mental illnesses and emotional disorders was not preempted by ERISA, simply because group health insurance is a part of many employer benefit plans. Judge Lay observed that a contrary holding would frustrate the insurance exemption to the preemptive provisions of ERISA.

Also consistent is Attorney General v. The Travelers Insurance Co., 391 Mass. 730, 463 N.E.2d 548 (1984), decided by the Supreme Judicial Court of Massachusetts, following remand from the Supreme Court of the United States for reconsideration in the light of Shaw v. Delta Airlines, Inc., supra. The Massachusetts court held that a provision for mandatory mental health benefits in policies of accident and sickness insurance, including expressly “any employees’ health and welfare fund,” was a regulation of “insurance” and therefore not preempted by ERISA. The case has been taken by appeal to the Supreme Court of the United States and has been set for oral argument. 53 U.S.L.W. 3295, 3323 (1984). This case is perhaps a stronger one for allowing state regulation than the Massachusetts case, because there is no specific reference in our statute to employees’ health and welfare funds.

The judgment of the circuit court is reversed and the case is remanded with directions to enter a judgment declaring that House Bill 127 is not unconstitutional for the reasons assigned by plaintiffs.

RENDLEN, C.J., and HIGGINS, GUNN and BILLINGS, JJ., concur.

WELLIVER and DONNELLY, JJ., dissent in separate opinion filed.

WELLIVER, Judge,

dissenting.

I respectfully dissent. I would affirm the judgment of the circuit court on the ground that the legislation challenged in this proceeding violated the prohibitions of Sections 21 and 23, Mo. Const, art. Ill, thereby making it unnecessary to reach the questions of due process, equal protection and impairment of contract.

The practice of taking a bill that appears doubtful of passage and combining it with a bill or bills reasonably assured of passage and passing the resulting bill under a broad and general amended title is one of the most expeditious and effective legislative strategies. It is also one of the most deceptive. This is the precise practice that Sections 21 and 23 seek to prohibit.

It is no secret that since courts began holding that Blue Cross-type hospital and medical service plans were not insurance, almost every session of the General Assembly has been faced with bills seeking to regulate Blue Cross as an insurance company. In my opinion, H.B. 127, 82nd General Assembly, effectively accomplishes via the back door that which could never be accomplished via the front door, i.e., legislative— judicial conversion of Blue Cross into a regulated insurance company. I remain firmly convinced that courts must strictly enforce Sections 21 and 23 of art. Ill of our Constitution if we are to maintain “the integrity of and public confidence in both the legislative process and our system of judicial review.” Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 7 (Mo. banc 1984) (Welliver, J., dissenting).

Most who deal with third party payment of hospital and medical services are aware that Blue Cross-type plans have fought a last ditch battle to contain rising hospital and medical costs. Simply stated, they have done so by reason of their unique contract with their members which enabled them to offer and hold out to participating hospitals and physicians the offer of direct payment of pre-agreed fees for services, leaving the non-participating and the higher chargers to fend for themselves in collection of their charges. My concern now is where in insurance law or regulations or standard insurance contracts will there be found any authorization to so resist rising medical costs. More likely, such action would be viewed as vexatious delay in the payment of insurance claims.

I would affirm the judgment of the circuit court.

DONNELLY, Judge,

dissenting.

On this appeal, we must weigh an exercise of the police power of Missouri against the provision “[t]hat no law * * * impairing the obligation of contracts * * * can be enacted.” Mo. Const, art. I, § 13.

In State ex rel. Kansas City v. Public Service Commission, 524 S.W.2d 855, 864 (Mo. banc 1975), this Court said:

The rule we adopt recognizes that the police power is essential to the achievement of such objectives as protecting the health and safety of the public and that it is as broad as need be to achieve those objectives. At the same time, it recognizes that the police power is not so powerful that it impairs the obligations of contracts where such impairment is not necessary to achievement of the objective for which the power is being exercised.

The issue on this appeal is whether, as defendants contend, the addition of the word “psychologist” to the list of health providers is necessary for protection of the public health and welfare.

“In discussing this question, [the principal opinion] * * * assumes the inevitability of an affirmative answer. It does not in any manner demonstrate that if [psychologists are not added to the list] * * *, the protection of the public [health and welfare] * * * by means of the police power will be frustrated or even hindered.” State ex rel. Kansas City, supra, at 860.

In my view, the challenged statute violates our Missouri Constitution. It unconstitutionally impairs the obligation of contracts. Mo. Const. art. I, § 13. We need not address the similar provision in Article I, § 10 of the United States Constitution. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978).

I respectfully dissent.

      . The principal opinion appears to rely on Missouri Dental Board v. Alexander, 628 S.W.2d 646 (Mo. banc 1982) as authorizing any impairment of the contracts herein under the police power. It was there stated that "The record is void of any evidence that appellants are parties to any executory contracts entered into prior to enactment of these statutes and affected by enactment of these statutes. Article I, § 13 prohibits the state from enacting statutes which impair the rights of parties to any existing contract.” Id. at 652. If anything, it would seem to suggest the contrary.

        . See Jordan v. Group Health Association, 107 F.2d 239 (D.C.Cir.1939); California Physicians' Service v. Garrison, 28 Cal.2d 790, 172 P.2d 4 (1945); Commissioner of Banking & Insurance v. Community Health Service, 129 N.J.S. 427, 30 A.2d 44 (1943); State ex rel. Fishback v. Universal Service Agency, 87 Wash. 413, 151 P. 768 (1915). See generally, Annot. 167 A.L.R. 322 (1946).


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. George Clifton GILMORE, Defendant-Appellant.
    No. 65381.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1984.
    Rehearing Denied Jan. 15, 1985.

      Robert B. Ramsey, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., George Cox, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

Defendant George Gilmore was convicted by a jury of capital murder, § 565.001, RSMo 1978, for his participation in the robbery and slaying of Woodrow Wilson Elliott. The jury recommended the death penalty and the defendant was sentenced accordingly. Defendant alleges nearly 30 instances of error, which have been assimilated into four major categories: 1) the trial court’s ruling on motions before and during the trial prevented the defendant from properly preparing and presenting an effective defense; 2) the prosecutor’s actions during the trial and his arguments and examination of witnesses exceeded the bounds of propriety; 3) trial court rulings during the jury selection were erroneous; and 4) the imposition of the death penalty was unconstitutional, disproportionate and excessive.

None of the alleged errors warrants reversal, and the judgment is affirmed.

In October 1980, defendant, his wife and her five children lived in a two bedroom trailer in Mineral Point, Missouri. Residing with them were defendant’s brother, Norman Gilmore, defendant’s sister and her six children and the sister’s boyfriend, Leonard Laws. This made for a total of five adults and 11 children in the trailer. None of the adults was gainfully employed.

In need of funds, defendant contrived a plan whereby he and his homemates could gain some “easy money.” Defendant suggested that he, Norman Gilmore and Leonard Laws would prey on elderly persons, robbing them of their money and then killing them to silence their tongues and prevent any identification. It was defendant’s theory that elderly people did not trust banks and kept substantial sums of money in their houses.

Norman Gilmore and Laws readily agreed to follow defendant’s malevolent plan. In this case, Woodrow Wilson Elliott was selected by defendant to be his somewhat perfect victim. Poor Mr. Elliott, also known as Mr. Wilson, was elderly, lived alone and was handicapped from birth by the absence of legs and one arm. Defendant had known Elliott since he was a child and was fully aware of his disability.

In the early morning hours of October 8, 1980, defendant, Norman Gilmore and Laws traveled to Mr. Elliott’s home, awakened him and then kicked and choked him to unconsciousness. The trio then ransacked the home and found $4,600 which was hidden in a jar. As the victim commenced to regain his senses, defendant ordered Laws to “take care of him.” Laws complied with defendant’s command and killed the hapless victim by stabbing him in the head with a knife, the force of the blow bending the knife blade. The three men then set fire to the victim’s house and returned to their cramped quarters in Mineral Point.

Police and fire department officials were alerted to a fire at the Elliott residence and arrived to find the house engulfed in flames. The victim’s body was charred beyond recognition, and his death originally was ruled accidental. Later investigation revealed very low levels of carbon monoxide saturation, indicating that the victim died prior to the fire.

Elated at their success from the Elliott robbery, the defendant and Laws bragged about the crime. They attempted to entice two other men, Robert Gilmore, a deceased cousin, and Bob DeClue, into joining the senseless and meretricious conspiracy to kill the elderly. The defendant rationalized that he was doing the victims a “favor”, because the elderly had no reason to live.

Robert Gilmore and DeClue notified police, and defendant and Laws were arrested a short time later. While in custody, the defendant gave a taped confession to the police of his involvement in the crime. Norman Gilmore also was arrested for his part in the Elliott murder. Norman, however, pleaded guilty to a lesser charge and agreed to testify as a state’s witness.

I.

Initially, defendant alleges that he was prevented from presenting his best defense due to trial court rulings prior to and during trial; the first being the refusal to order a psychiatric examination for him.

Motion for the examination was made 48 days prior to the scheduled trial date and on objection by the state, the motion was overruled. Despite defendant’s contrary assertion, there was no error in this ruling.

Defendant had been the beneficiary of seven prior psychiatric examinations, including two in this cause. Five of the examinations were made in connection with other capital murder charges against defendant pending at the time as this case. None of the examinations disclosed a mental disease or defect within the meaning of Missouri’s criminal statutes, §§ 552.020 and 552.030, RSMo Cum.Supp.1983.

Section 552.020.5 allows written request of another examination if given within five days of a previous psychiatric report, and the trial court is vested with broad discretion in granting or denying an untimely motion for another examination. State v. Collier, 624 S.W.2d 30, 33 (Mo.App.1981). Defendant concedes that there was no timely objection to the prior reports or request for another examination. Under the circumstances of this case, it is manifest that the trial court’s refusal to order an eighth mental examination was not an abuse of discretion.

Defendant argues that the trial court’s ruling against the additional mental examination precluded investigation of the defense of diminished mental capacity due to his low I.Q.; that his mental capacity had never been fully assessed. But this is not so.

A review of the transcripts of defendant’s two other capital murder trials, transcript at 605 (guilt phase), State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983), cert. denied, - U.S. -, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984); transcript at 65 (sentencing phase), State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983), reveals that a psychiatrist testified on defendant’s behalf and placed defendant’s I.Q. at a level between 70 and 85. During trial in this case, defendant’s counsel made frequent reference to the earlier trials and acknowledged familiarity with the transcripts. Due to his acquaintance with the testimony in the pri- or trials, defendant’s counsel cannot justify an excuse of unawareness of defendant’s intelligence level or that there had been no estimation made of his mental capacity.

There is yet further reason for rejecting defendant’s low I.Q. defense. That factor, standing alone, will not serve as licit basis for a defense of diminished mental capacity. See State v. Shaw, 636 S.W.2d 667 (Mo. banc 1982), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982), (I.Q. of 73 will not serve as evidence of diminished mental capacity); State v. Brizendine, 391 S.W.2d 898 (Mo.1965), (I.Q. of 74 did not establish mental disability to provide excuse or defense to crime).

Defendant next raises three instances in which the trial court restricted cross-examination of two state’s witnesses, Norman Gilmore and Robert DeClue. There is no need to dwell on this matter. It is sufficient to note that in each instance, defense counsel’s questions were either repetitive, improperly phrased or argumentative. “Although cross-examination is a fundamental component of confrontation, it is not unlimited.” State v. Russell, 625 S.W.2d 138, 141 (Mo. banc 1981). A trial court has broad discretion to disallow repetitive and harassing interrogation, to limit attacks on general credibility, and to preclude attempts to elicit irrelevant, collateral or stale matters. Id. Further, in each of the instances, the jury received the gist of the testimony that the defense counsel attempted to develop. Therefore, even if there had been error in sustaining objections to these isolated questions, the court’s rulings were not prejudicial to the defendant. State v. Butler, 534 S.W.2d 832, 835 (Mo.App.1976).

Defendant also avers that the trial court failed to hold a hearing on his motion to suppress his confession to the Elliott murder. This point is denied, as the transcripts from the hearing on this matter belie the assertion.

Defendant alternatively argues that the hearing on the motion to suppress was improperly combined with motions made in another murder case. He contends this violated § 565.004, RSMo Cum.Supp.1983. This contention also fails. The statute cited by defendant, assuming it would preclude the joinder of two suppression hearings, was not in effect at the time these motions were heard. Secondly, it is clear that the combined hearing was held for the convenience of all of the parties, as defendant was being represented by the same counsel in both murder cases which were pending in St. Louis County.

The next alleged error is that defendant was unable to adequately prepare a defense due to the court’s refusal to appropriate funds for witnesses. State v. Holland, 653 S.W.2d 670, 677-78 (Mo. banc 1983), cert. denied, - U.S. -, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983), and State v. Woods, 662 S.W.2d 527, 533 (Mo.App.1983), are dispositive on this point. There is no constitutional mandate to provide witnesses for the defense at state expense. “Whether to provide public funds to aid an accused in the preparation of his defense is within the discretion of the trial court.” State v. Holland, 653 S.W.2d at 678. But for one exception, the defendant’s request was ambiguous. There was no abuse of discretion in the trial court’s refusal to allow defendant a “blank check” for the employment of witnesses.

The only witness specifically identified was Dr. James Gilsanin, a professor of sociology, who was to testify as to the deterrent value of the death penalty. It is aphoristic that the sentencing phase of the trial is not designed to serve as a forum for a general debate on the attributes of capital punishment. The bifurcated procedure was devised to avoid the imposition of the death sentence in an arbitrary and capricious manner. State v. Royal, 610 S.W.2d 946, 950 (Mo. banc 1981). However, it is apparent from defendant’s motion that Dr. Gilsanin’s testimony would not have focused upon the specifics of the defendant’s case and, therefore, would not have assisted the jury in imposing a rational sentence. See Gregg v. Georgia, 428 U.S. 153, 191-92, 96 S.Ct. 2909, 2933-34, 49 L.Ed.2d 859 (1976).

This Court has recognized that the death penalty serves the legitimate purposes of retribution and incapacitation, and the legislature may find that the penalty serves the purpose of deterrence. State v. Trimble, 638 S.W.2d 726, 737 (Mo. banc 1982), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1031 (1983). Therefore, the trial court’s decision to refuse funds for the employment of an expert witness, whose testimony was irrelevant to the issue at hand, was not erroneous. The fact that another trial court might have been more gratuitous in Leonard Laws’ ease in permitting the presentation of Dr. Gilsanin’s testimony does not make the trial court’s ruling error in this instance.

II.

The defendant’s next grouping of allegations lists 13 instances of prosecutorial error. Only five of the examples have been developed in his brief. Those which are not are deemed abandoned. State v. Heitman, 473 S.W.2d 722, 727-28 (Mo.1971); State v. Sanders, 619 S.W.2d 344, 349 (Mo.App.1981). However, by reason of the gravity of defendant’s sentence, each will be considered.

Most of the incidents in this category concern the alleged improper introduction of evidence of other crimes.

The first deals with the testimony of defendant’s former wife who was asked if defendant’s junk business entailed something other than selling junk. Defendant argues that the question necessarily implies that he was dealing in stolen goods. Objection to the question was sustained, and defendant’s wife did not provide any answer. Assuming the question to be improper, the general precept applies here that when such a question is asked but not answered, no prejudicial error occurs. State v. Williams, 652 S.W.2d 102, 110 (Mo. banc 1983); State v. Pirtle, 652 S.W.2d 272, 273 (Mo.App.1983).

Defendant next asserts that defendant’s former wife was permitted to describe how Norman Gilmore, the defendant’s brother, bragged about killing “a few people.” No error is demonstrated, as the rule excluding evidence of other crimes does not apply where there is no evidence linking the accused to the other crime. State v. Laws, 668 S.W.2d 234, 237 (Mo.App.1984). The reference to Norman Gilmore in this instance does not necessarily implicate the defendant.

The prosecutor was permitted to bring out through various witnesses that after Mr. Elliott’s killing defendant had purchased certain firearms and that at the time of his arrest he possessed numerous weapons. Defendant’s point in this regard is that evidence of weapons is irrelevant, as there was no connection between these weapons and the killing of Mr. Elliott.

This same contention was raised and rejected in Leonard Laws’ trial for his participation in Mr. Elliott’s murder. State v. Laws, supra. As noted in Laws, the state’s theory was that the motive for the Elliott murder was theft. The defendant and his cohorts took $4,600 from the crippled man’s home before setting the house and the victim ablaze. Testimony revealed that all three men who participated in the crime were absolutely penurious prior to the murder but made large purchases immediately thereafter. The defendant’s purchases included weapons which were to be used in an insensate design to kill other elderly people. Since the evidence was relevant to motive and common scheme or plan, it was admissible. State v. Williams, 652 S.W.2d at 110; State v. Trimble, 638 S.W.2d at 732; State v. Shaw, 636 S.W.2d at 672.

Likewise, evidence of a banking transaction made by Laws shortly after the murder was relevant as circumstantial evidence of the motive for the murder.

The next matter raised as to prosecutorial error is a little more complex but, again, does not call for reversal. The arresting police officer was queried about the plan for arresting those implicated in murder by Robert Gilmore and Robert DeClue. In so doing the officer stated that the victim had been “Williams” [“The victim of that one was Williams”]. The prosecutor immediately clarified and corrected the foregoing statement by asking: “You mean Wilson.” This correction was for the obvious reason that the victim was better known as “Mr. Wilson” rather than Mr. Elliott.

Defendant complained in a colloquy at the bench that the officer’s statement raised evidence of defendant’s earlier conviction for the dual murders of Clarence and Lottie Williams. See State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983). The court rejected a motion for a mistrial but offered alternative curative measures: 1) permit the witness to explain his answer, or 2) instruct the jury to disregard the officer’s statement. Both measures were rejected by the defense. Defendant now complains that the trial court erred in refusing to declare a mistrial.

Due to the similarity of the names “Williams” and “Wilson,” it is evident that the officer’s statement was inadvertent. At trial defense counsel conceded that the officer’s statement may have been a mistake. This predicament resembles those situations in which a state’s witness volunteers an unresponsive reference to an unrelated and distinct crime. In such instances, a reversal is not automatic but is dependent upon the circumstances of the case. State v. Warden, 591 S.W.2d 170, 172 (Mo.App.1979). Here, the state made no effort to emphasize the volunteered response. There was an immediate correction made. The reference to “Williams” was isolated and was specifically in the singular rather than a reference to any dual killing of a couple. The reference was not by any stretch of imagination clear evidence of another crime. Additionally, it was certainly corrected by the prosecutor’s prompt action, through the officer’s explanation, that “Wilson” was intended to be the answer and that defendant was arrested for the “Wilson matter.”

A motion for a mistrial is addressed to the sound discretion of the trial judge, State v. Lee, 654 S.W.2d 876, 879 (Mo. banc 1983), and in this case there is no error in failing to grant the motion. The declaration of a mistrial is a drastic remedy to be employed only in the most extraordinary of circumstances. Id. Any error in failing to take other curative measures was invited by counsel’s own conduct in rejecting the court’s proposals. The fact that the defendant sought no relief other than a mistrial cannot aid him. State v. Hill, 614 S.W.2d 744, 752 (Mo.App.1981). See State v. Crawford, 619 S.W.2d 735, 740 (Mo.1981); State v. Williams, 660 S.W.2d 360, 361 (Mo.App.1983); State v. Jackson, 657 S.W.2d 44, 46-47 (Mo.App.1983); State v. Swingler, 632 S.W.2d 267, 270 (Mo.App.1982), holding no error in failing to declare a mistrial under similar circumstances present in this case.

Other crime evidence also allegedly occurred during the examinations of an arresting officer and Robert DeClue. At one juncture, in reference to the defendant’s confession, the officer was asked: “Is this tape about this homicide, Woodrow Wilson Elliott?” During DeClue’s testimony, the witness stated that the defendant had committed “some murders.” Defendant contends that both of these statements inferred that he was guilty of numerous other killings.

In neither instance was objection raised. As stated previously, failure to raise objection preserves nothing for appeal. State v. Kenner, 648 S.W.2d 552, 554 (Mo.App.1983). And, taken in context, it is illogical to assume that anyone could decipher these isolated statements as references to other crimes.

Although a review of this complaint may be made under plain error standard, the strength of the state’s case is a prime factor in determining whether the error resulted in manifest injustice or a miscarriage of justice. State v. Hammonds, 651 S.W.2d 537, 539 (Mo.App.1983). The evidence of guilt in this case was overwhelming — a fact conceded by defendant. Therefore, the trial court’s failure to intervene sua sponte cannot be viewed as reversible error.

There is no merit in the defendant’s other complaints that the prosecutor was permitted to ask leading and repetitive questions throughout the trial.

As another of his subpoints, defendant asserts that the trial court erred in refusing to order the withdrawal of the assistant prosecuting attorney after the defense endorsed him as a witness. In support of his proposition, the defendant cites D.R. 5-101 and 5-102. Disciplinary Rule 5-102(B) states that if a lawyer learns that he may be called as a witness, “other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”

The fact is that the defendant did not call the assistant prosecutor as a witness. There was no violation of the disciplinary rule in the assistant prosecutor’s continued representation of the state since there appears no prejudice to the state. And absent some showing of prejudice to the defendant — which there was none — there is no need for reversal.

Defendant’s objection concerning the introduction of photographs of the victim is unavailing. The photographs depicted the victim while he was alive, corroborating testimony about his handicaps. The admission of such demonstrative evidence is within the discretion of the trial court. State v. Bolder, 635 S.W.2d 673, 688 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983), and no error appears.

Defendant’s assertion that it was error to inform the jury of his prior convictions for which he received the death penalty also is denied. This evidence was introduced during the sentencing phase of the trial. “Evidence of other convictions and crimes is appropriate for jury consideration in the second segment of the bifurcated proceedings.” State v. Gilmore, 661 S.W.2d at 524.

In closing argument the prosecutor noted that the defense counsel had two and one-half years to prepare his case. This was inaccurate, as the counsel who represented the defendant at trial was not the same attorney at the time of his arraignment. Counsel at trial had been on the case about seven months. This inaccuracy, however, is so trivial that no prejudice could have resulted, particularly when counsel was permitted to correct the misstatement. Reversal is not required in every instance in which the prosecutor steps beyond the boundary of proper argument. State v. Huston, 599 S.W.2d 69, 71 (Mo.App.1980).

During the sentencing phase of the trial, the prosecutor requested the jury to return the death penalty since the public would expect such punishment if given the opportunity to review the evidence and the defendant’s prior conviction record. Defendant contends that this is prejudicial error, but it is not. A prosecutor’s argument which merely points to the need for strong law enforcement and infers the effect of the jury’s failure to perform its duty is proper. State v. Olds, 603 S.W.2d 501, 511 (Mo. banc 1980). It also has been held proper for the prosecutor to ask for a severe penalty as a deterrent to crime if the jury finds the defendant guilty, and it is not reversible error for the prosecutor to tell the jury that the community will be watching the result of the trial. Id; State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 (banc 1956), cert. denied, 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed.2d 167 (1956). The prosecutor’s argument in the instant case fell within allowable limits.

The defendant argues that the state failed to present all of the evidence to which the prosecutor referred in opening statement and that the consequence is reversible error. The mere neglect to set forth some fact mentioned in opening is not prejudicial unless the prosecutor never intended to present the evidence or actually knew he could not support the declaration of proof. State v. Turner, 633 S.W.2d 421, 425 (Mo.App.1982). When the issue concerns the trial court’s discretion relative to an opening statement, no error requiring reversal will be found if the challenged statement is made in good faith with the reasonable expectation that the evidence will be produced. State v. Brooks, 618 S.W.2d 22, 24 (Mo. banc 1981). No bad faith has been demonstrated by the defendant’s bare assertions.

III.

In the third of his major points relied on, defendant forwards three allegations of error in the trial court’s rulings made during the jury selection process. The first of these is that the trial court excused for cause three prospective jurors who expressed opposition to the death penalty. He argues that the dismissal of these veni-repersons violated the constitutional strictures imposed by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Two of the three venirepersons in issue initially indicated that they could at least consider the death penalty if so instructed by the judge. But, the qualifications of a prospective juror are not determined conclusively by a single response. They are made on the basis of the entire voir dire examination. State v. Smith, 649 S.W.2d 417, 425-426 (Mo. banc 1983), cert. denied, 459 U.S. 1114, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). A reading of the entire voir dire transcript reveals that these prospective jurors eventually voiced strong opposition to the death penalty, stating their inability to vote for the penalty regardless of the evidence that would be advanced at trial. The third venireperson did not indicate that he could even consider the death penalty.

Defendant then contends that if the venirepersons indicated that they could not vote for the death penalty this was an improper line of inquiry since the Witherspoon standard is whether the venireper-son could consider it. This contention also fails. As the United States Supreme Court expressed in Witherspoon, the death penalty could be executed where venirepersons who were excused for cause made it unmistakably clear “that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.” (emphasis added). 391 U.S. at 522 n. 21, 88 S.Ct. at 1777. In light of the trial court’s ability to observe the tenor of the questioning, as well as the reluctance of lay persons to communicate their opinion, the requirements of Witherspoon were met. See State v. Mercer, 618 S.W.2d 1, 7 (Mo. banc 1981), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981). See also State v. Preston, 673 S.W.2d 1 (Mo. banc 1984), and State v. Guinan, 665 S.W.2d 325 (Mo. banc 1984), concerning the striking of venirepersons. Guinan deals in substantial detail with the application of Witherspoon.

Defendant next alleges error in the trial court’s refusal to permit voir dire on four issues. The first of these issues concerns the venireperson’s ability to impose the death penalty in view of accomplice Leonard Laws’ life sentence. Defendant contends that it was error not to permit this inquiry, since the state was allowed to question the jury similarly with respect to Norman Gilmore’s 15 year sentence. Both Laws and Norman Gilmore were co-defendants.

Disposition of a co-defendant’s case normally is not competent evidence. State v. Clark, 646 S.W.2d 409, 411 (Mo.App.1983). Evidence of Norman Gilmore’s sentence, however, was raised during voir dire, as he was scheduled as a prosecution witness. It was clear that evidence of Norman’s short sentence would be placed before the jury by the defense as impeachment on cross-examination. Laws, on the other hand, was not scheduled to testify. There was no logical rationale for informing the jury of his sentence during voir dire. The trial court has broad supervisory powers in the examination of prospective jurors, State v. Smith, 649 S.W.2d at 428, and no abuse of discretion appears concerning this issue.

Other inquiries not permitted during jury selection were: 1) whether the death penalty was appropriate in cases other than capital punishment; 2) whether the prospective jurors agreed with abortion; and 3) whether Nazi war criminals deserved the death penalty. None of these questions is relevant. Further, the defendant bears the burden of demonstrating prejudice as a result of the trial court’s refusal to permit the inquiry. State v. Alexander, 620 S.W.2d 380, 384 (Mo. banc 1981); McGrath v. State, 671 S.W.2d 420, 422 (Mo.App.1984). Defendant fails to demonstrate prejudice here.

Defendant’s final attack on the jury selection process is twofold. He contends that it was error not to permit voir dire in individual or small groups. Secondly, he submits that it was error not to permit a second jury for sentencing. Neither of these assertions warrants reversal. The court permitted individual voir dire as the need arose. Clearly, the court has the discretion to control voir dire in this manner. State v. Guinan, 665 S.W.2d at 329, and State v. Yowell, 513 S.W.2d 397, 403 (Mo. banc 1974), are directly on point on this issue.

Likewise, there is no constitutional infirmity in Missouri’s statutory scheme which provides for a single jury to determine both guilt and sentence in a bifurcated trial. State v. Preston, 673 S.W.2d at 9; State v. Lashley, 667 S.W.2d 712, 714 (Mo. banc 1984); and State v. Guinan, 665 S.W.2d at 330, relate to this.

IV.

The final major category raised is an amalgamation of complaints which address the constitutionality of Missouri’s death penalty provisions and the proportionality of his sentence.

As to the first of these issues, it is sufficient to refer to this Court’s prior decisions which have consistently upheld the death penalty provisions as being constitutional and non-violative of the proscription against cruel and unusual punishment. See, e.g., State v. Byrd, 676 S.W.2d 494, 506-07 (Mo. banc 1984); State v. Laws, 661 S.W.2d at 531; State v. Williams, 652 S.W.2d at 112; State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149, reh’g denied, 459 U.S. 1024, 103 S.Ct. 391, 74 L.Ed.2d 520 (1982).

Consideration must also be given to the factors indited in §§ 565.012 and 565.014, RSMo 1978. Defendant does not contend and the record does not support a finding that the death sentence was imposed under influence of passion, prejudice or any arbitrary factor. The evidence also supports the jury’s finding that the killing involved depravity of mind, was “outrageously and wantonly vile and horrible” and that defendant had been convicted of prior felonies. State v. Preston, 673 S.W.2d at 10; State v. LaRette, 648 S.W.2d 96, 101 (Mo. banc 1983), cert denied, 459 U.S. 1114, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983), reh’g denied, - U.S. -, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983).

We also find that the death sentence is not disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. For this latter point, it should be enough to look to State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983), in which the death penalty was upheld against the same defendant for the identical type of crime, albeit defendant did not personally apply the killing blow to the victim. It is evident that defendant’s culpability exceeds that of his co-defendants and when combined with his previous criminal history, his sentence of death was imposed properly.

Norman Gilmore, defendant’s brother and co-defendant, turned state’s evidence and received a lesser sentence to a reduced charge. But plea agreements are not to be considered in proportionality review. State v. Laws, 661 S.W.2d at 532; 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 (1983).

Neither is there basis for the contention that defendant’s sentence is disproportionate to that of Leonard Laws who received life without parole for fifty years. Any capital sentencing scheme may occasionally produce an aberrational outcome, Pulley v. Harris, - U.S. -, 104 S.Ct. at 881. But that is not so in this instance.

It was the defendant who contrived the pernicious scheme of robbing the handicapped and the elderly and then killing them to prevent later identification. The defendant, not Leonard Laws, selected the victim. The defendant had known Woodrow Wilson Elliott since childhood and was aware that Elliott was helpless, having no legs and only one arm. Further, the evidence strongly suggests that George Gilmore was the fugleman and guiding force in the killing of “Mr. Wilson” (Elliott). It also appears that Laws stabbed the victim at the direction of the defendant, and that the other members of the gang truckled at defendant’s command. And certainly, the defendant’s past criminal record was more extensive than that of Laws. Thus, this case compares with State v. Guinan, supra (death penalty for defendant upheld with life sentence for co-defendant), and the amercement was not arbitrarily imposed.

Finally, defendant argues that it was error to allow the prosecutor, in closing argument to make reference to the deterrent value of the death penalty after denying funds for Dr. Gilsanin to present evidence to the contrary. Dr. Gilsanin would have testified that the death penalty does not have a deterring effect. It is the substance of defendant’s argument that Dr. Gilsanin was allowed to testify for Leonard Laws, who received life rather than death, and that such testimony may have been the lifesaving touch.

Defendant’s argument is unpersuasive. The prosecutor’s remark regarding deterrence was limited to his argument. No evidence on this matter was introduced by the state, so Dr. Gilsanin was not needed to counter any state’s evidence.

The issue regarding the state’s obligation to provide public funds for witnesses for defendant has already been treated. It is not so obliged. State v. Holland, supra; State v. Woods, supra.

The fact is that there are qualitative differences between Laws’ and defendant’s past conduct and defendant’s guiding hand through a series of heinous and lupine crimes against those cruelly trapped by age or physical handicap. The argument that the sentencing outcome of the Laws case hinged solely on the theoretical assertion of one witness is too speculative and frail to have substance to resist the force of logic.

Judgment affirmed.

All concur.

      . Defendant’s wife, Linda Geisler — she had divorced defendant and remarried at the time of trial — had one child by defendant, two from a previous marriage and two out of wedlock by Leonard Laws.

      . The scheme devised by defendant of robbing the elderly and then doing them in was part of the same perverse plot that resulted in death penalty convictions for him in State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983), cert. denied, - U.S. -, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984), and State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983).

      . This Court may take judicial notice of the transcripts of the defendant’s other capital murder trials. State v. Wynn, 391 S.W.2d 245, 247 (Mo.1965); Franklin v. State, 655 S.W.2d 561, 563 (Mo.App.1983).

      . State v. Laws, 668 S.W.2d 234 (Mo.App.1984).

      . The jury was informed of Laws' life sentence during the sentencing phase of trial.

      . This section was repealed by Laws 1983, S.B. 276 § 1 and replaced by § 565.032, RSMo Cum. Supp.1983. The effective date of S.B. 276 was extended to October 1, 1984, by S.B. 448, 1984 Mo.Leg.Serv. No. 3 at 169.

      . This section was repealed by Laws 1983, S.B. 276 § 1 and replaced by § 565.035, RSMo Cum. Supp.1983. The effective date of S.B. 276 was extended to October 1, 1984, by S.B. 448, 1984 Mo.Leg.Serv. No. 3 at 169.
      A comparative proportionality review is dictated solely by Missouri statutes and is not constitutionally mandated. State v. Byrd, 676 S.W.2d at 507. See Pulley v. Harris, - U.S. -, 104 S.Ct. 871, 879, 79 L.Ed.2d 29 (1984).


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie Lee WILLIAMS, Defendant-Appellant.
    No. 47245.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 23, 1984.
    Michael Radosevich, Asst. Public Defender, Columbia, for defendant-appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM.

This is a direct appeal from a judgment pursuant to jury verdicts convicting appellant of burglary in the second degree (§ 569.170 RSMo.1978) and stealing over $150 (§ 570.030 RSMo.Supp.1982). Sentences were imposed by the court after a finding that the appellant was a persistent offender. (§ 558.016 RSMo.1978).

An extended opinion would serve no jurisprudential purpose. The judgment is affirmed. Rule 30.25(b).