Judge denies motion in Stoddard County murder case alleging unconstitutional wording

Friday, May 20, 2011

BLOOMFIELD, Mo. -- A motion in the murder case against Allen "Smurf" McCoy that questioned the constitutionality of a phrase in the death penalty intent notice was denied by Judge Stephen Sharp on Wednesday.

McCoy's attorney, Robert Craig Wolfrum, recently filed the motion saying that the use of the phrase "sanctity of life" created an unconstitutional establishment of religion.

The establishment clause, in the First Amendment of the U.S. Constitution, states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The establishment clause does more than simply prevent the establishment of religion; it also prohibits the preference of nonreligion over religion, but some action implicating religion has been allowed in the past.

Wolfrum's argument was based on the fact that the American Heritage Dictionary defines sanctity as "holiness, saintliness, or godliness".

He went on to say that by having the phrase included in the jury instructions, it would make a juror who lacks religious belief incapable of rendering a verdict either way because a nonreligious individual would not recognize the "sanctity" of all life.

"The instructions would require a potential juror to make a religious statement," Wolfrum said. "What I'm asking is that the court declare it [the phrase [OpenSingle]sanctity of life'] unconstitutional."

The prosecution said the statement does not violate the establishment clause and that if it did, it would still be too early for the court to render a decision.

The phrase in question states, "That the defendant killed Aubery Lee Finch as a part of defendant's plan to kill more than one person and thereby exhibited a callous disregard for the sanctity of all human life." It is also said in two more places stating that the sanctity of life was violated due to Finch's physical disability and due to purposely causing the suffering of another human being.

Prosecutors argue that the murder of Finch required "depravity of mind" and that it was "outrageously and wantonly vile, horrible and inhuman."

"There are 10 to 15 ways to prove depravity of mind," assistant attorney general Kevin Zoellner said. Zoellner is assisting Stoddard County Prosecuting Attorney Russell Oliver in the case. "I think it is premature to rule on this motion before we hear some evidence."

Zoellner said the prosecution may use any number of methods to prove "depravity of mind," and they are unsure at the present time which method they will use. Depravity is commonly used as an aggravating circumstance in first-degree murder cases.

Oliver argued in his motion of intent to seek the death penalty that by murdering an individual known to be handicapped and in ill health, McCoy showed "depravity of mind and a callous disregard for the sanctity of all human life."

"It [the phrase [StartDouble]sanctity of life"] in no way is requiring an establishment of religion by anyone involved in the case," he said, noting that basically it is referring to the "specialness" of life."

Wolfrum countered by saying if the prosecution had used that wording, there would not have been a defense motion to begin with.

"The issue is clear; it needs resolution in Missouri," Wolfrum said in closing.

Sharp both overruled and denied the defense objection.

The defense is expected to file a writ of prohibition to the appellate court based on Sharp's denial.

He ordered attorneys to reappear at 9 a.m. Nov. 2 for a full day of motion hearings before trial. No official trial date has been set.

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