969 S.W.2d 743 (Mo.banc 1998)

Franklin Case Facts: In September of 1977, believing that Jews were “enemies of the white race,” Franklin drove to Dallas, Texas after robbing a bank in Little Rock, Arkansas. In Dallas, Franklin bought a 30-06 rifle with a telescopic sight. He then drove to St. Louis, Missouri, checked into a hotel, scouted the city for synagogues, and finally chose Brith Shalom Kneseth Israel Congregation in Richmond Heights.

To prepare for the crime, Franklin bought some ten-inch nails, a guitar case and a bicycle. He tested the bicycle to assure himself that it could be used to enable him to leave the scene of the crime. He drove the nails into a telephone pole to serve as a rifle rest. Later, he ground the serial number off the rifle. He then cleaned the rifle, ammunition and guitar case of any fingerprints and, thereafter, he used gloves to handle the equipment. Lastly, he put the rifle into the guitar case and hid them both in some bushes near the synagogue.

On October 8, 1977, Franklin waited outside the synagogue for people to emerge. Shortly before 1:00 p.m., some of the guests left the synagogue and walked toward their cars. Franklin began firing on the guests. He fired five shots from approximately one hundred yards. Gerald Gordon was shot in the left side of his chest and later died from blood loss resulting from damage to his lung, stomach, spleen, and other internal organs. Steven Goldman was grazed on the shoulder. William Ash was wounded in the left hand and later lost his small finger on that hand. Having fired all his ammunition, Franklin abandoned the rifle and the guitar case. He then rode his bicycle to a nearby parking lot where his automobile was parked, hid the bicycle in some bushes and left St. Louis by car. P>

Missouri.Net

Joseph Paul Franklin was to be executed at 12:01 a.m., Nov. 20, 2013. The Department of Corrections has until 11:59 p.m. to carry out the state’s orders, allowing time for any legal descrepancies to be resolved. Here’s a timeline of the last-hours efforts to block his execution and of the execution this morning at the Bonne Terre prison.

TUESDAY

4:28 p.m. – Federal Judges Nanette Laughry and Carol Jackson issue two stays of execution, after three appeals filed by Franklin’s attorney. One claimed he was mentally ill and should not be executed because of that, and the other challenged the drug protocol, a lethal dose of pentobarbital, which has never been used for an execution in Missouri. (Several other states have successfully used pentobarbital, which is commonly used to euthanize animals.)

10:30 p.m. — Members of the press and state witnesses are taken to separate holding rooms in the Bonne Terre correctional facility. Members of the press are only allowed to have a pen, notebook, and a watch. In the end, though, neither Franklin nor his victims will have witnesses for the execution.

WEDNESDAY

12:01 a.m. — No new information is available; prison officials stand by to carry out the execution despite the legal proceedings. Franklin remains in a holding cell.

1:30 a.m. (approximately) — Witnesses there for Franklin have left. Corrections staff tells members of the press that included Franklin’s daughter, two members of the clergy, and two witnesses from the Department of Corrections.

2:55 a.m. — Stays are vacated, Franklin appeals to the U.S. Supreme Court.

4:40 a.m. — Attorney General Chris Koster obtains reversal of appeals in 8th District Court of Appeals.

5:17 — Corrections staff tells press “it’s a go.” Superintendent Dave Dormire confirms, “It does appear the execution will proceed.”

5:20 — Dept. of Corrections Director George Lombardi comes in, reads statement thanking witnesses for their service to the state. Stresses that a lawful execution is about to take place. Dormire reads the protocol: 5 grams of pentobarbital is to be administered. If that does not result in death after 5 minutes, another 5 grams is to be administered. “The entire process should take 10 to 15 minutes.” He says he’ll be back to get the witnesses from the holding area soon.

6 a.m. — Corrections officials tell state witnesses and press it’s time to go to the execution chamber.

Six witnesses: three members of the press, and three private citizens, enter a darkened viewing area. A black curtain is covering a one-way window between them and Franklin. Dormire stands at the door. There is a guard on each side of the curtain.

6:07 — The drug is administered and the guards are ordered to open the curtain. Franklin is strapped onto a gurney, a white sheet pulled up to his chin. His hair is combed behind his ears and he is wearing his glasses. Other than the blinking of his eyes, there is no movement.

6:10 — Franklin’s chest rises and falls with a few deep breaths, he closes his eyes, and swallows. His chest stops rising and falling, it appears he has stopped breathing. His mouth falls open slightly, and his face begins to pale.

6:15 — The guards are ordered to pull the black curtain closed, so that medical staff can check Franklin’s vital signs. “Five grams of pentobarbital was administered,” says Dormire, “and we waited five minutes.”

6:17 — The black curtain opens, and a voice crackles over one of the guards radio’s … “execution complete.” The warden signs the death warrant and slides it under the door.

St. Louis Post-Dispatch

"Missouri executes white supremacist Joseph Paul Franklin," by Jeremy Kohler. (Nov 20, 2013 10:45 am )

BONNE TERRE, Mo. • Missouri has executed Joseph Paul Franklin, the white supremacist killer who targeted blacks and Jews during a multistate crime spree from 1977-1980. Franklin, 63, was put to death for the 1977 sniper killing of Gerald Gordon at a Richmond Heights synagogue. His fate was sealed when the U.S. Supreme Court, at about 5:20 a.m. Wednesday, upheld a federal appeals court decisions overturning stays granted Tuesday by federal judges in Jefferson City and St. Louis.

Mike O’Connell, of the Missouri Department of Public Safety, said the execution got the final OK from Gov. Jay Nixon at 6:05 a.m. By this time, Franklin was already strapped to a table in the state’s death chamber at Eastern Reception, Diagnostic and Correctional Center, ready for the injection. He received a lethal injection at 6:07 a.m., and his death was confirmed at 6:17 a.m. The execution was the first in Missouri using a single drug, pentobarbital. Three media witnesses said Franklin did not seem to express pain. He did not make any final written statement and did not speak a word in the death chamber. After the injection, he blinked a few times, breathed heavily a few times, and swallowed hard, the witnesses said. The heaving of his chest slowed, and finally stopped, they said.

Jessica Machetta, managing editor of Missourinet, who witnessed the execution, said he did not seem to take a breath after 6:10 a.m. Nixon said in a statement: “The cowardly and calculated shootings outside a St. Louis-area synagogue were part of Joseph Paul Franklin’s long record of murders and other acts of extreme violence across the country, fueled by religious and racial hate.” He asked that Gordon be remembered and that Franklin’s victims and their families remain in the thoughts and prayers of Missourians.

Judges in two U.S. court districts had ordered stays of execution for Franklin on Tuesday. But Missouri Attorney General Chris Koster’s office successfully appealed both of the orders to the 8th Circuit Court of Appeals. U.S. District Judge Nanette K. Laughrey in Jefferson City granted the first stay Tuesday afternoon. She criticized the state for changing the plan just days beforehand for how the execution was to be carried out — using a lethal injection of pentobarbital produced by a secret compounding pharmacy — and then telling the defendant that “time is up” to challenge the method.

Then, Tuesday night, U.S. District Judge Carol E. Jackson in St. Louis granted a second stay, based on Franklin’s claim that he is mentally incompetent to be executed. She wrote that Laughrey’s stay “does not moot the necessity to address the petitioner’s motion in this case.” Laughrey wrote that neither Franklin’s lawyers nor the court had been able to address the question of whether the state’s execution method passes constitutional muster, “because the Defendants keep changing the protocol that they intend to use.” Whether the use of pentobarbital constituted cruel and unusual punishment was among the issues raised in the request for a stay filed by Franklin and other plaintiffs. The stay was meant to “ensure that the Defendants’ last act against Franklin is not permanent, irremediable cruel and unusual punishment in violation of the Eighth Amendment,” Laughrey’s ruling said.

Last month, Gov. Jay Nixon delayed the execution of another man because of issues surrounding the state’s plan to use the widely used anesthetic propofol. Most of the supply of propofol comes from drug makers in the European Union, which opposes the death penalty and has said it would cut off supplies to the U.S. if the drug were used for executions. Nixon ordered the state to find a new drug, and the Department of Corrections settled on pentobarbital, which is commonly used to euthanize pets, to be provided by a compounding pharmacy. The name of that pharmacy is a secret, under a law passed by the Missouri Legislature that bans making public the identity of anyone on the execution team. “The Department has not provided any information about the certification, inspection, history, infraction history, or other aspects of the compounding pharmacy,” the judge’s order noted.

Koster’s office argued in a motion to vacate Laughrey’s order that “the use of sufficiently potent pentobarbital, in the dose planned, will lead to a rapid and painless death” and that the Supreme Court has said that some risk of pain is inherent in any method of execution. The office also argued that Franklin had not exhausted his administrative appeals, and thus had no right to relief from the court.

The plaintiff’s expert, the judge’s order said, noted that the American Veterinary Medical Association recently discouraged the use of compounded drugs such as pentobarbital because of the “high risk of contamination.” In the competency appeal, Jackson ruled that a stay was necessary to investigate a defense expert’s claim that Franklin was insane. She noted that he “has routinely stated that he makes decisions based on idiosyncratic associations of meaning to particular letters or numbers or messages he receives in dreams.” Koster’s office responded in a motion that said Jackson relied on anecdotes and abused her discretion. “There is nothing inherently delusional about these things. Many people are superstitious or ascribe meaning to the symbols in their dreams. None of the anecdotes shows Franklin does not have a rational understanding of the State’s basis for his execution, and the district court offered no explanation or analysis to the contrary.” The Missouri Supreme Court had denied Franklin’s appeals earlier Tuesday.

PROTEST HELD HERE

Franklin did not eat a final meal before his death, preferring to fast. In addition to the three media witnesses, six people witnessed the execution for the state. Franklin’s four witnesses left the prison about 4 a.m. and were not present for his death.

While prison guards cordoned off an area near the prison for demonstrators for and against the execution, none arrived. Protesters with Missourians for Alternatives to the Death Penalty held a candlelight vigil on the steps of St. Francis Xavier (College) Church at St. Louis University on Tuesday night. About three dozen people stood in silence on the steps, holding battery-powered candles. Margaret Phillips, the St. Louis representative of the group, said Franklin’s mental illness and concerns about the origins of the death penalty drug troubled the group. They prayed for Franklin’s family and his victims. “Even though we oppose the death penalty, we don’t support his actions, at all,” she said. The Associated Press and Valerie Schremp Hahn of the Post-Dispatch contributed to this report.

St. Louis Post-Dispatch

"Up next for execution: The man who shot Larry Flynt and Vernon Jordan," by by Jeremy Kohler (11-17-13)

The next U.S. execution is scheduled for 12:01 a.m. Wednesday in Bonne Terre, Mo. If the execution survives legal challenges filed in federal and state courts, it will be watched closely because of the high profile of the condemned inmate and the state’s controversial method to kill him.

Joseph Paul Franklin, 63, is condemned to die for the 1977 sniper killing of Gerald Gordon, 42, the father of three young daughters, outside a Richmond Heights synagogue. Authorities have convicted the avowed racist of, or linked him to, 18 killings and other crimes, including the murder of two black men in Utah, two black teens in Ohio and an interracial couple in Wisconsin. He admitted to the nonfatal shootings of Hustler Magazine publisher Larry Flynt and civil rights leader Vernon Jordan, but was never convicted of those crimes.

For several years, Missouri was one of the nation’s most prolific death penalty states, but the pace of the state’s executions has slowed to a crawl because of constitutional challenges, questions about the fitness of its execution team and, most recently, struggles to secure lethal drugs for executions. The state executed 66 prisoners between 1989 and 2005, but just two in the past eight years, and no one since Martin Link in February 2011.

Now, Missouri says it is prepared to give Franklin a lethal injection of pentobarbital, a drug commonly used to euthanize pets, produced by a compounding pharmacy. Franklin’s attorneys are appealing to state and federal courts to stop the execution, arguing that the method would put him at risk of an unconstitutionally “excruciatingly painful execution.” And death penalty opponents are attacking Missouri’s secrecy over the people involved. Flynt on Nov. 8 filed a motion in federal court to unseal documents revealing the identity of an anesthesiologist on the team. “There are simply too many unanswered questions to justify ending someone’s life,” Jeffrey A. Mittman, executive director of the American Civil Liberties Union of Missouri, wrote in an email to ACLU supporters on Friday.

Lee Lankford was a sergeant with Richmond Heights police when the shootings happened, and was a captain in 1980 when he figured out that Franklin was the killer. He scoffed at the concern over Franklin’s comfort. “How many lives did he take on his rampage across the United States?” Lankford, who retired as Richmond Heights police chief in 1992, said on Friday. “Just to be put to sleep, that’s the easiest way out of here.”

Major drug manufacturers have stopped supplying drugs used in executions. Stymied by a shortage of chemicals available for the state’s long-used three-drug sequence, Missouri last year switched to a lethal dose of propofol. It would have been the first time the common hospital anesthetic was used in an execution. The European Union, which opposes the death penalty, had threatened to cut off supplies of the drug to the U.S. if the execution went forward, which could have had a widespread impact on hospitals. Last month, Gov. Jay Nixon postponed the execution of Allen Nicklasson after the Department of Corrections was pressured to return its propofol inventory. Within days, Missouri announced it would use a different drug for Franklin’s execution.

The state has added the compounding pharmacy to its execution team to produce a lethal injection of pentobarbital. Just a half-dozen states have resorted to compounding pharmacies. Those pharmacies come under limited government oversight, and their safety has come into question. Earlier this year, federal regulators said they had found numerous unsafe practices at 30 compounding pharmacies. Last year, more than 50 people died and more than 600 were made ill from fungal meningitis after receiving injections of a contaminated steroid made by the New England Compounding Center.

AN AIM TO KILL JEWS

Franklin has caused more than his share of suffering. In a 1995 interview with two Post-Dispatch reporters, Franklin, who legally changed his name to honor Nazi propagandist Joseph Paul Goebbels, said he randomly picked St. Louis from a road map as a site for killing “as many Jews as I could.” He used a phone book to select Brith Sholom Kneseth Israel Congregation in Richmond Heights.

On Oct. 7, 1977, a Friday, Franklin arrived in St. Louis and chose a place for the shooting, from a knoll overlooking the synagogue. He returned about 9 a.m., on the Sabbath. A bar mitzvah was under way. He fired five shots, killing Gordon. In the shooting, another man lost a finger and was wounded in the hip. A bullet ripped through the clothes of a third man. Franklin escaped to Memphis, Tenn. “As soon as they came out, I opened fire,” he said. “I hit two … I wanted to kill at least two of them. After the first two shots, I fired three quick shots randomly at the synagogue.”

Franklin told the Post-Dispatch that he discovered Nazism through pamphlets he read. He later joined the Ku Klux Klan, the American Nazi Party and the National States Rights Party. He decided to act after he moved to the Washington area in the early 1970s. The moment came one Saturday in 1975 as he walked past a synagogue in Maryland. “I remember thinking I could just sit there with a rifle and pick off Jews,” he said.

His next attack was in Chattanooga, Tenn., in July 1977, where he blew up a synagogue. The bomb went off one hour after services had ended. No one was injured. “I got mixed on times and set it to go off at the wrong time. If I would have set it an hour earlier, I would have killed them all. And I was trying to kill them all.”

In his interview with the Post-Dispatch, Franklin admitted shooting Flynt outside a courthouse in Georgia in 1978, where the publisher was on trial for obscenity. Franklin said he did not like Hustler’s pictures of interracial couples. On May 29, 1980, Jordan was shot and seriously wounded outside the Marriott Inn in Fort Wayne, Ind. Asked about the Jordan shooting, Franklin would say only, “I did it.” He was finally caught that year while selling his blood in Florida. A nurse recognized a bald eagle tattoo on his arm from descriptions for a suspect being sought in several murders and called authorities. He was sentenced to death in Missouri in 1997.

Lankford said Franklin called him regularly to talk during his incarceration — even tracking him down by phone after Lankford’s retirement. “You’re dealing with a homicidal maniac, a person who at the time was all screwed up in the head,” Lankford said. “He was a racist and a Nazi. But he finally came to grips with himself and was sorry that he had done it.”

Salt Lake City Tribune

"Joseph Paul Franklin Timeline," by Brooke Adams. (Last Updated Nov 20 2013 07:29 am)

Avowed racist Joseph Paul Franklin, 31, served as his own attorney during his trial on first-degree murder charges in the sniper killing of two black joggers. This photo was taken during the trail on Sept. 3, 1981. The case was expected to go to the jury Friday afternoon.

Juy 8- Joseph Paul Franklin, avowed racist charged with shooting former National Urban League director Vernon Jordan, leaves U.S. District Court in Fort Wayne, Thursday. Franklin was told by a federal judge that he need not furnish samples of his handwriting to be compared with Fort Wayne motel registration cards allegedly signed around the time Jordan was shot. Franklin was wheel-chair bound because of knife wounds he suffered in Marion, Ill. federal prison. Atlanta attorney Vernon E. Jordan Jr. addresses a news conference in New York City on June 15, 1971. Jordan is named executive director of the National Urban League, the established African American organization. Urban League Director Vernon Jordan speaks at a National Urban Affairs Council luncheon in New York, Friday, May 30, 1981, one year after he was wounded in an unsolved shooting in Fort Wayne, Ind. Jordan warned that the United States is turning into a meaner, more selfish country, as the government abandons the black poor.

David Martin, gunned down in a racially motivated attack while jogging with white women in Liberty Park on Aug. 20, 1980. Martin was 18 years old. Ted Fields was 20 when Joseph Paul Franklin shot him and 18-year-old David Martin outside Salt Lake City's Liberty Park on Aug. 20, 1980. Hustler magazine founder Larry Flynt arrives at the premiere of the documentary 'Larry Flynt: The Right to be Left Alone' at The Paley Center for Media Friday, Oct. 26, 2007 in New York.

The state of Missouri plans to execute Joseph Paul Franklin by lethal injection at midnight on Nov. 20 for the murder of Gerald C. Gordon. Franklin shot Gordon on Oct. 8, 1977, as he stood outside the Brith Sholom Kneseth Israel Congregation synagogue in Richmond Heights, Mo. Franklin has been found guilty in seven additional murders. He has admitted or been linked to two bombings, at least 16 bank robberies and about a dozen other ambush-style attacks that left as many as eight people dead. April 13, 1950 • James Clayton Vaughn Jr. is born in Mobile, AL to James Clayton Vaughn Sr. and Helen Rau.

1976 • Vaughn changes his name to Joseph Paul Franklin, after Paul Joseph Goebbels and Benjamin Franklin.

July 25, 1977 • Franklin bombs the Rockland, Maryland, home of Morris Amitay, a Jewish lobbyist.

July 29, 1977 • Franklin bombs the Beth Sholom synagogue in Chattanooga, Tenn. He is convicted of the bombing on July 17, 1984, and sentenced to 31 years in prison.

Aug. 7, 1977 • Franklin fatally shoots African-American Alphonse Manning Jr., 23, and Toni Schwenn, 23, a white woman, in Madison, Wis., shortly after robbing a bank. In 1986, Franklin receives two life sentences for the murders.

Oct. 8, 1977 • Franklin fires at a crowd outside Brith Sholom Kneseth Israel Congregation synagogue in Richmond Heights, Mo., killing Gerald C. Gordon, 42, of Chesterfield, Mo., and wounding William Lee Ash, 30, of Akron, Ohio. He is convicted in 1997 and receives a death sentence.

Feb. 2, 1978 • Franklin kills African American Johnny Brookshire, 22, and wounds his white wife, Joy Williams, 23, in Atlanta, Ga.

March 6, 1978 • Larry Flynt, publisher of "Hustler" magazine, and his attorney Gene Reeves are shot while in Lawrenceville, Ga. Flynt is paralyzed from the waist down. Franklin later admits to the shooting.

July 29, 1978 • Franklin fatally shoots African American William Bryant Tatum and wounds his white girlfriend, Nancy Hilton, 18, in Chattanooga, Tenn. He confesses, pleads guilty and receives a life sentence in 1998.

July 12, 1979 • Franklin fatally shoots Harold McIver, 29, an African-American man and Taco Bell manager, in Doraville, Georgia.

Aug. 18, 1979 • Franklin fatally shoots Aftican American Raymond Taylor, 28, in Falls Church, Va.

Oct. 21, 1979 • Franklin fatally shoots Jesse E. Taylor, 42, an African-American, and Marion Bresette, 31, who was white, in Oklahoma City. He is charged with the crimes but the case is later dropped.

Dec. 5, 1979 • Franklin fatally shoots Mercedes Lynn Masters, 15, a white prostitute, after she tells him she had had African-American customers.

Jan. 12, 1980 • Franklin fatally shoots African American Lawrence E. Reese, 22, in Indianapolis.

Jan. 14, 1980 • Franklin fatally shoots African American Leo Thomas Watkins, 19, in Indianapolis.

May 2, 1980 • Franklin fatally shoots Rebecca Bergstrom, 20, a white woman, in Mill Bluff State Park, Wis. He admits the murder in 1984.

May 29, 1980 • Vernon E. Jordan Jr., president of the National Urban League, is shot outside a Marriott Inn in Fort Wayne, Ind. Franklin is later charged with attempted murder, but is acquitted after a trial in August 1982. Years later, Franklin admits shooting Jordan.

June 8, 1980 • Franklin fatally shoots cousins Darrell Lane, 14, and Dante Evans Brown, 13, both African American, in Cincinnati, Ohio. He is convicted in October 1998 and receives two life sentences.

June 15, 1980 • Franklin fatally shoots Arthur Smothers, 22, an African-American, and Kathleen Mikula, 16, a white, in Johnstown, Pa.

June 25, 1980 • Franklin fatally shoots Nancy Santomero, 19, and Vickie Durian, 26, in Pocahontas County, Va., after one of the white women said she had had a boyfriend who was African-American. He confesses to the murders in 1984.

Aug. 10, 1980 • Franklin arrives in Utah, staying in various local motels.

Aug. 20, 1980 • Ted Fields, David Martin, Terry Elrod and Karma Ingersoll are crossing 500 East at 900 South at 10:15 p.m. after jogging in Liberty Park as shots are fired. Fields, 20, and Martin, 18, both African-American, are killed.

Aug. 22, 1980 • Franklin leaves Utah and travels to Nevada and then San Francisco, Calif.

Sept. 25, 1980 • Franklin is arrested in Florence, Kentucky, on car theft charges but escapes from the jail five hours later, setting off a nationwide manhunt.

Oct. 28, 1980 • FBI agents arrest Franklin at Sera-Tec Biologicals, a blood bank, in Lakeland, Fla.

Oct. 31, 1980 • A federal jury in Utah indicts Franklin for violating the civil rights of Fields and Martin. His bail is set at $1 million. Other states begin linking him to sniper shootings.

Nov. 5, 1980 • First-degree murder charges for deaths of Fields and Martin are filed against Franklin in state court.

March 4, 1981 • After deliberating 14 hours, a federal jury in Utah finds Franklin guilty of civil rights violations for murdering Ted Fields and David Martin. The verdict followed a two-week trial.

March 18, 1981 • Franklin is charged with 1979 Oklahoma and 1980 Indiana murders.

March 23, 1981 • Franklin is sentenced to two consecutive life sentences in federal court for the Utah murders.

Sept. 18, 1981 • In a case brought by the state of Utah, Franklin is found guilty of first-degree murder. He subsequently receives two consecutive life sentences.

Feb. 3, 1982 • Franklin is stabbed 15 times by inmates three days after arriving at the federal prison in Marion, Ill.

Feb. 27, 1997 • Franklin receives a death sentence in Missourifor killing Gerald C. Gordon.

ReutersNews

(Reuters) - Missouri serial killer Joseph Paul Franklin was executed by lethal injection on Wednesday after the U.S. Supreme Court cleared the way for him to be put to death for murdering a man outside a synagogue in 1977, a corrections spokesman said. Franklin, an avowed white supremacist, was convicted and sentenced to death for killing Gerald Gordon, 42, and wounding two other men in a St. Louis-area synagogue parking lot. But he also was linked to the deaths of at least 18 other people. Franklin, 63, was pronounced dead at 6:17 a.m. CST (1217 GMT) at the Missouri Eastern Correctional Center in Bonne Terre, said Mike O'Connell, a spokesman for the Missouri Department of Public Safety.

The U.S. Supreme Court had cleared the way earlier on Wednesday for the execution to move forward, lifting two stays that would have allowed Franklin to challenge Missouri's new lethal drug protocol, and argue his claim that he was mentally incompetent and could not be executed. The stays were granted on Tuesday by two federal judges and immediately appealed by the state. Franklin was the 35th inmate executed in the United States in 2013 and the first in Missouri in nearly three years, according to the Death Penalty Information Center.

He was convicted of killing eight people in the late 1970s and 1980s in racially motivated attacks around the country. The victims included two African-American men in Utah, two African-American teenagers in Ohio and an interracial couple in Wisconsin. He also had admitted to shooting Hustler magazine publisher Larry Flynt in 1978, paralyzing him. Flynt argued that Franklin should serve life in prison and not be executed.

FIRST EXECUTION UNDER NEW PROTOCOL

Franklin was the first inmate in Missouri put to death under the state's new execution protocol. In October, the state changed its protocols to allow for a compounded pentobarbital, a short-acting barbiturate, to be used in a lethal dose for executions. The state also said it would make the compounding pharmacy mixing the drug a member of its official "execution team," which could allow the pharmacy's identity to be kept secret.

Missouri is one of many U.S. states that have been seeking out drugs for executions from compounding pharmacies now that a growing number of pharmaceutical manufacturers refuse to allow their drugs to be used for the purpose. The practice is controversial because drugs mixed in compounding pharmacies are not approved by the U.S. Food and Drug Administration. Critics contend use of the compounded drugs could result in needless suffering and botched executions, but states including Missouri have pressed ahead. Franklin was one of nearly two dozen plaintiffs challenging the constitutionality of Missouri's new execution protocol.

In granting a stay on Tuesday, U.S. District Judge Nanette Laughrey had noted that Missouri issued three different protocols in the three months preceding Franklin's execution date and as recently as five days before. "Franklin has been afforded no time to research the risk of pain associated with the department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," Laughrey wrote in the stay order entered in federal court in Jefferson City, Missouri.

Kansas City Star

"Missouri executes white supremacist serial killer," by Jim Salter. (Associated Press November 20, 2013)

BONNE TERRE, Mo. — Joseph Paul Franklin, a white supremacist who targeted blacks and Jews in a cross-country killing spree from 1977 to 1980, was put to death Wednesday in Missouri, the state's first execution in nearly three years.

Franklin, 63, was executed at the state prison in Bonne Terre for killing Gerald Gordon in a sniper shooting at a suburban St. Louis synagogue in 1977. He was convicted of seven other murders, but the Missouri case was the only one resulting in a death sentence. Franklin has also admitted to shooting and wounding civil rights leader Vernon Jordan and Hustler magazine publisher Larry Flynt, who has been paralyzed from the waist down since the attack in 1978.

Mike O'Connell, a spokesman for the Missouri Department of Corrections, said Franklin was pronounced dead at 6:17 a.m. The execution began more than six hours later than intended, and it took just 10 minutes. Franklin declined to make a final statement. Wearing black rimmed glasses with long hair tucked behind his ears, he swallowed hard as five grams of pentobarbital were administered. He breathed heavily a couple of times then simply stopped breathing. Guards closed the curtains to the viewing area while medical personnel confirmed Franklin was dead.

"The cowardly and calculated shootings outside a St. Louis-area synagogue were part of Joseph Paul Franklin's long record of murders and other acts of extreme violence across the country, fueled by religious and racial hate." Gov. Jay Nixon said in a statement read to reporters by George Lombardi, director of the Department of Corrections, after the execution.

Franklin's lawyer had launched three separate appeals: One claiming his life should be spared because he was mentally ill; one claiming faulty jury instruction when he was given the death penalty; and one raising concerns about Missouri's first-ever use of the single drug pentobarbital for the execution. But his fate was sealed early Wednesday when the U.S. Supreme Court upheld a federal appeals court ruling that overturned two stays granted Tuesday evening by district court judges in Missouri. The rulings lifting the stay were issued without comment.

Franklin, a paranoid schizophrenic, was in his mid-20s when he began drifting across the country. He bombed a synagogue in Chattanooga, Tenn., in July 1977. No one was hurt, but soon, the killings began. He arrived in the St. Louis area in October 1977 and picked out the Brith Sholom Kneseth Israel synagogue from the Yellow Pages. He fired five shots at the parking lot in Richmond Heights after a bar mitzvah on Oct. 8, 1977. One struck and killed Gerald Gordon, a 42-year-old father of three. Franklin got away. His killing spree continued another three years.

Several of his victims were interracial couples. He also shot and killed, among others, two black children in Cincinnati, three female hitchhikers and a white 15-year-old prostitute, with whom he was angry because the girl had sex with black men. He finally stumbled after killing two young black men in Salt Lake City in August 1980. He was arrested a month later in Kentucky, briefly escaped, and was captured for good a month after that in Florida. Franklin was convicted of eight murders: two in Madison, Wis., two in Cincinnati, two in Salt Lake City, one in Chattanooga, Tenn., and the one in St. Louis County. Years later, in federal prison, Franklin admitted to several crimes, including the St. Louis County killing. He was sentenced to death in 1997.

In an interview with the St. Louis Post-Dispatch on Monday, Franklin insisted he no longer hates blacks or Jews. While he was held at St. Louis County Jail, he said he interacted with blacks at the jail, "and I saw they were people just like us." He has made similar statements to other media but has denied repeated interview requests from The Associated Press. Franklin's attorney Jennifer Herndon said his reasoning exemplified his mental illness: He told her the digits of the AP's St. Louis office phone number added up to what he called an "unlucky number," so he refused to call it.

ProDeathPenalty.Com

Victims:

Alphonse Manning,23
Toni Schwenn, 23
Gerald Gordon, 42
Johnnie Brookshire, 22
William Bryant Tatum
Harold McIver, 29
Raymond Taylor
Jesse Taylor, 42
Marian Vera Bresette, 31
Mercedes Lynn Masters, 15
Lawrence Reese, 22
Leo Thomas Watkins, 19
Rebecca Bergstrom, 21
Darrell Layne, 14
Dante Evans Brown, 13
Arthur Smothers, 22
Kathleen Mikula, 16
Nancy Santomero, 19
Vicki Durian, 26
Ted Fields, 20
David Martin, 18

In September of 1977, believing that Jews were “enemies of the white race,” Joseph Paul Franklin, born as James Clayton Vaughn, Jr., drove to Dallas, Texas after robbing a bank in Little Rock, Arkansas. In Dallas, Franklin bought a 30-06 rifle with a telescopic sight. He then drove to St. Louis, Missouri, checked into a hotel under an assumed name, scouted the city for synagogues, and finally chose Brith Sholom Kneseth Israel Congregation in Richmond Heights. Franklin had previously bombed a synagogue and another building and had long considered developing a plan to murder numerous Jews as they left synagogue, as he believed that African-Americans and Jews were “enemies of the white race.”

To prepare for the crime, Franklin bought some ten-inch nails, a guitar case, and a bicycle. He tested the bicycle to assure himself that it could be used to enable him to leave the scene of the crime. He drove the nails into a telephone pole to serve as a rifle rest. Later, he ground the serial number off of the rifle. He then cleaned the rifle, ammunition, and guitar case of any fingerprints and, thereafter, he used gloves to handle the equipment. Lastly, he put the rifle into the guitar case and hid them both in some bushes near the synagogue.

On Saturday, October 8, 1977, Franklin waited outside the synagogue for people to emerge. Shortly before 1:00 p.m., some of the guests left the synagogue and walked toward their cars. Franklin began firing on the guests. He fired five shots from approximately one hundred yards. Gerald Gordon was shot in the left side of his chest and later died from blood loss resulting from damage to his lung, stomach, spleen, and other internal organs. Steven Goldman was grazed on the shoulder. William Ash was wounded in the left hand and later lost his small finger on that hand.

Having fired all his ammunition, Franklin abandoned the rifle and the guitar case. He then rode his bicycle to a nearby parking lot where his automobile was parked, hid the bicycle in some bushes, and left St. Louis by car. Police recovered a Remington .30-06 rifle, spent shell casings, a guitar case, and a bicycle used in connection with the shootings, but never apprehended the sniper.

The crimes remained unsolved for seventeen years. In 1994, while serving six consecutive life sentences at a federal penitentiary in Marion, Illinois, Franklin requested an interview with an agent from the Federal Bureau of Investigation (FBI). During the interview, Franklin confessed to the 1977 St. Louis synagogue shootings. Franklin gave the FBI agent a detailed account of his preparation for and execution of the shootings, which included: (1) buying a .30-06 rifle in Texas, obliterating the rifle’s serial numbers, and wiping his fingerprints from the rifle and shell casings; (2) initially choosing Oklahoma City as the location for the shootings, but selecting St. Louis instead, believing St. Louis had a larger Jewish population; (3) choosing the Richmond Heights (St. Louis) synagogue because it had bushes for cover; (4) carrying the rifle in a guitar case to the scene the night before the shootings; (5) hammering nails into a telephone post to use as a rifle prop; (6) using a bicycle to flee the scene undetected after the shootings; and (7) monitoring the police radio to determine whether the police were looking for him. Franklin repeated his confession in a videotaped interview to a Richmond Heights police officer, and told the officer he wished he “had killed five Jews with the five bullets.”

UPDATE: After initially receiving a stay that delayed his execution for several hours, Joseph Franklin was executed despite claims that using pentobarbital for the execution might cause him undue pain.

Radford University

James Clayton Vaughn Jr. AKA Joseph Paul Franklin
Information researched and summarized by Sam Brauer, Ryan A. Bruch, Ashleigh Benois
Department of Psychology, Radford University, Radford, VA 24142-6946

Date - Age - Life Event

04/13/1950 0 Born in Mobile, Alabama as James Clayton Vaughn, Jr.
1957 7 Head Injury - Bicycle Accident
1958 8 Father abandons family. Would return on occasion.
1965 15 Stole copy of Mein Kampf
1967 17 Dropped out of Murphy High School at the end of his junior year.
02/1968 18 Met Bobbie Louise Dorman (16) and marries her two weeks later. They divorce after 4 mo.
1968 18 Joined Arlington American Nazi Party
1969 19 Becomes obsessed with Charles Manson’s plan for a race war
1970 20 Begins insulting mixed-raced couples
1972 22 Conviction for carrying a concealed weapon in Fairfax, VA
1973 23 Joins National States Rights Party
1973 23 Begins selling racist newspaper, The Thunderbolt
1976 26 Joined KKK in Atlanta, GA (quit after a few months due to Klan’s lack of violence)
9/6/1976 26 Tailed a Black man with a white date, cornered them, and sprayed them with mace (Md.)
1976 26 Sent threating letter to newly elected President Jimmy Carter
1976 26 Changed name to Joseph Paul Franklin
1977 27 Joined Alabama National Guard
1977 27 Commits first major bank robbery in Atlanta, GA
07/25/1977 27 Bombs home of Jewish leader, Morris Amitay
07/29/1977 27 Bombs of synagogue in Chattanooga, TN
08/07/1977 27 Goes to Madison, WI, robs a bank, plans to shoot Archie Simonson but instead shoots an interracial couple, Alphonse Manning (23) and Toni Schwenn (23).
1977 27 Robs a bank in Little Rock, AR
1977 27 Drives to Dallas, TX buys a Remington 30.06
08/02/1977 27 Robs a bank in Columbus, Ohio
10/08/1977 27 Kills Gerald Gordon (42) and wounds William Ash (30) in St. Louis, MO (Remington 700)
02/1978 28 Kills Johnny Brookshire (22) and wounds (paralyzed) his white girlfriend, Joy Williams (23), in Atlanta, GA
03/06/1978 28 Wounds/paralyzes Hustler magazine publisher Larry Flynt in Lawrenceville, GA (.44)
03/06/1978 28 Wounds Gene Reeves (latter recovers) (.44)
1978 28 Robs a bank in Louisville, KY
1978 28 Robs a bank in Atlanta, GA
07/29/1978 28 Shoots an interracial couple at Pizza Hut – kills Bryant Tatum, and wounds girlfriend, Nancy Diane Hilton(18)
1978 28 Robs a bank in Montgomery, AL
1978 28 Returns to Alabama and meets Anita Carden (16) in an ice cream shop, they begin dating
1979 29 Franklin and Anita get married in DeKalb County Courthouse (Atlanta, GA)
07/12/1979 29 Shoots and kills Harold McIver (29) at Taco Bell in Doraville, GA (30.30)
08/18/1979 29 Kills Raymond Taylor at Burger King in Falls Church, VA (30.30)
08/25/1979 29 First offspring – Montgomery, AL
10/21/1979 29 Shoots and kills a mixed-race couple Jesse Taylor (42) and Marian Vera Bressette (31) in Oklahoma City, OK
12/05/1979 29 Cheats on his wife and kills prostitute Mercedes Masters (15) after admission of interracial relations
01/08/1980 30 Kills Black man, Lawrence Reese (22), at fried chicken fast food restaurant
01/14/1980 30 Kills Leo Thomas Watkins (19) through plate glass of convenience store in Indianapolis shopping mall (30.30)
April 1980 30 Franklin and his wife Anita separate.
05/02/1980 30 Kills hitchhiking student Rebecca Bergstorm in Mill Bluff State Park, WI
05/29/1980 30 Shoots civil rights leader. Vernon Jordan. in Fort Wayne, IN
06/08/1980 30 Kills cousins Darrell Layne (14) and Dante Evans Brown (13) in Cincinnati, OH
06/15/1980 30 Kills Arthur Smothers (22) and Kathleen Mikula (16) in Johnstown, PA
06/24/1980 30 Robs a bank in Burlington, NC
06/25/1980 30 Kills hitchhikers Nancy Santomero (19) and Vicki Durian (26) in Pocahontas, WV (.44 Ruger)
08/20/1980 30 Kills Ted Fields (20) and David Martin (18) in Salt Lake City, UT (Marlin lever action)
09/24/1980 30 Franklin is arrested in Florence, Kentucky and then escapes from the police department/
10/28/1980 30 Franklin is recaptured in Lakeland, FL
11/07/1980 30 Extradited to Salt Lake City, UT and arraigned for murders of Ted Fields and David Martin.
03/04/1981 31 Federal Trial – convicted of violating the civil rights of Fields and Martin and sentenced to two consecutive life sentences
06/02/1981 31 State Trial – convicted of killing Fields and Martin, sentenced to two more life sentences due to hung jury regarding death penalty (attempted escape but recaptured) sent to Medical Center for Federal Prisoners in Springfield MI
01/31/1982 32 Transferred to United States Penitentiary in Marion, IL to begin serving life sentences
02/03/1982 32 Stabbed 15 times in the neck and abdomen by a group of African Americans
08/17/1982 32 Federal Trial – found not guilty for violating the civil rights of Vernon Jordan
1983 33 Partially confesses to the Larry Flynt shooting
1983 33 Confesses to shooting of Larry Flynt and bombing Morris Amitay’s house in Washington DC
03/01/1984 34 Confesses to the murder of Rebecca Bergstrom; the murders of Santomero and Durian; Chattanooga synagogue bombing (tried in July and sentenced to 15-20yrs for bombing & 6-10yrs for possession of explosives), Rainbow murders, shooting Alphonse Manning (23) and Toni Schwenn (23)
02/14/1986 36 Convicted in Wisconsin of killing Manning and Schwenn. Sentenced to two consecutive life sentences
08/19/1990 40 Admits to Killing Ted Fields and David Martin in Salt Lake City, UT
06/04/1993 43 Jacob Beard is found guilty of two counts of 1st-Degree murder for the Rainbow murders of Satomero and Durian although Franklin confessed to the murders
1994 44 Franklin confesses to killing Gerald Gordon
1995 45 Admits to shooting Vernon Jordan
11/18/1996 46 Tells Deborah Dixon, WKRC Cincinnati reporter, that he killed Santomero and Durian because “They dated black people”
02/27/1997 47 Found guilty of killing Gerald Gordon and sentenced to death
03/10/1997 47 Admits to killing Raymond Taylor
04/13/1997 Admits to murdering Arthur Smothers and Kathleen Mikula. Later confesses to murdering Darrell Lane and Dante Evans Brown
10/22/1997 47 Found guilty of murdering Darrell Lane and Dante Evans Brown, sentenced to 40 years to life in prison.
1998 48 Admits to killing William Tatum, pleads and receives two concurrent life sentences (one for murder and one for robbery)
03/1998 48 Confesses to killing prostitute Mercedes Masters and Harold McIver
11/01/1999 49 Confesses to killing Johnny Brookshire in 1978
2000 50 Jacob Beard is retried for the Rainbow murders and found not guilty
2004 54 US District Court requires release or retrial of Franklin for the Gerald Gordon murder
2006 56 Federal Judge puts the Missouri death penalty on hold over concerns involving lethal rugs.
July 2007 57 Federal Appellate Court overturns U.S. District Court decision
2008 58 U.S. Supreme Court decides that the current method of execution (lethal injection) is constitutionally permissible
2010 60 US Supreme court refuses to hear Missouri lethal injection case Clemons v. Crawford, lethal injection stands as permissible and Missouri attorney general states executions will begin again. General Information
Sex Male
Race White
Number of victims 7-20+
Country where killing occurred United States
States where killing occurred Wisconsin, Missouri, Tennessee, Georgia, Virginia, Indiana,
Ohio, Pennsylvania, West Virginia, Utah, Oklahoma
Cities where killing occurred
Type of killer Organized Visionary
Height 5’11”
Childhood Information
Date of birth April 13, 1950
Location Mobile, Alabama
Birth order 2nd of 4
Number of siblings 4
XYY? No
Raised by Mom
Birth category Middle
Parent’s marital status Divorced
Did serial killer spend time in an orphanage? No
Did serial killer spend time in a foster home? No
Was serial killer ever raised by a relative? No
Did serial killer ever live with adopted family? No
Did serial killer live with a step-parent? No
Family event Parents divorce in 1950s
Age of family event Younger than 10 years old
Problems in school? No
Teased while in school? No
Physically attractive? No
Physical defect? Yes
Speech defect? No
Head injury? Bike accident, age 7
Physically abused? Yes, by both parents
Psychologically abused? Yes
Sexually abused? No
Father’s occupation
Age when first had intercourse
Mother’s occupation
Father abused drugs/alcohol Yes; alcohol
Mother abused drugs/alcohol
Cognitive Ability
Highest grade in school 10th
Highest degree None
Grades in school Average
IQ Above average
Source of IQ information Ayton (2011, pg. 272)
Work History
Served in the military? Yes
Branch Alabama National Guard
Type of discharge Unknown
Saw combat duty No
Killed enemy during service? No
Applied for job as a cop? No
Worked in law enforcement? No
Fired from jobs? No
Types of jobs worked Unknown
Employment status during series Unknown
Relationships
Sexual preference Heterosexual
Marital status Married
Number of children 1
Lives with his children No
Living with Mother
Triad
Animal torture No
Fire setting No
Bed wetting No
Killer Psychological Information
Abused drugs? No
Abused alcohol? No
Been to a psychologist (prior to killing)? No
Time in forensic hospital (prior to killing)? None
Diagnosis n/a
Killer Criminal History (Prior to the series)
Committed previous crimes? Bank robbery, Fire-bombed home of Morris Amitay, firebombed
synagogue, and Threw mace at mixed-race couple
Spent time in jail? No
Spent time in prison? No
Killed prior to series? Age? No; n/a
Serial Killing
Number of victims (suspected of) 21 murders
Number of victims (confessed to) 17 murders
Number of victims (convicted of) 8 murders
Victim type Mixed-race couples, and anyone who ever mixed race
Killer age at start of series 27yrs
Killer age at end of series 30yrs
Date of first kill in series August 7, 1977
Date of final kill in series August 20, 1980
Gender of victims Male (14) and Female (7)
Race of victims White (8) and African American (13)
Age of victims 13, 14, 15, 16, 18, 19(2), 20, 22(3), 23(2), 26, 29, 31, 42(2)
Type of victim Mixed-race couples
Method of killing Shooting
Weapon Guns
Was gun used? Yes
Type Rifles, Shotguns, and Handguns
Did killer have a partner? No
Name of partner n/a
Sex of partner n/a
Relationship of partner n/a
Type of serial killer Organized missionary
How close did killer live? Drifter
Location of first contact Unknown
Location of killing Madison, Wisconsin
Killing occurred in home of victim? No
Killing occurred in home of killer? No
Victim abducted or killed at contact? Killed at contact, if contact was made
Behavior During Crimes
Rape? No
Tortured victims? No
Stalked victims? Sometimes
Overkill? No
Quick & efficient? Yes
Used blindfold? No
Bound the victims? No
After Death Behavior
Sex with the body? No
Mutilated body? No
Ate part of the body? No
Drank victim’s blood? No
Posed the body? No
Took totem – body part No
Took totem – personal item No
Robbed victim or location No
Disposal of Body
Left at scene, no attempt to hide Yes
Left at scene, hidden No
Left at scene, buried No
Moved, no attempt to hide No
Moved, hidden No
Moved, buried No
Cut-op and disposed of No
Burned body No
Dumped body in lake, river, etc. No
Moved, took home No
Sentencing
Date killer arrested September 24, 1980
Date convicted About 1981
Sentence Death sentence and multiple life sentences
Killer executed? Not yet
Did killer plead NGRI? No
Was the NGRI plea successful?
Did serial killer confess? Yes
Name and state of prison Potosi Correctional Center near Mineral Point, Missouri
Killer committed suicide? No
Killer killed in prison? No

St. Louis Beacon

"Three decades later, the effects of synagogue shooting are still being felt, In Race, Frankly," by Ellen Futterman, Editor of Jewish Light. (Tue May 25, 2010 7:00 pm)

It was supposed to be one of the most memorable days of his young life. And in fact Richard "Ricky" Kalina's bar mitzvah certainly was that, but not in the way he, or his parents, or any of the guests had envisioned. On the day that in the Jewish religion signifies Ricky's passage from boyhood to manhood, the 13-year-old was forced to deal with a tragedy of life-changing proportion. It left one family friend dead, two others wounded and a neo-Nazi serial killer on the loose. "It was the day that I lost my innocence," says Kalina, now 45, married and the father of two. "My whole life changed in a matter of seconds."

The day Rick kalina became a man - Proud parents Maxine and Merwyn Kalina had invited about 200 guests to their eldest son Ricky's bar mitzvah at Brith Sholom Kneseth Israel in Richmond Heights on Oct. 8, 1977. A reception at Le Chateau in Frontenac was planned for the evening and a brunch at the Kalina's home in Town & Country would take place the next day. A separate kids' party was to occur later that Sunday. "I felt good about the bar mitzvah service," says Rick Kalina, recently recalling the sunny autumn day more than 32 years ago. "I read my Haftorah without messing up, recited the prayers and gave my speech. It all went very well." Around 1 p.m., as the kiddish luncheon following the three-hour service was winding down, guests began to leave. As Ricky was saying goodbye to them outside the synagogue and showing a friend his brand new digital watch, he heard what sounded like firecrackers being shot. "I had just said goodbye to Gerry Gordon, his wife, Sheila and their kids," Kalina says. "Gerry was something of a jokester so when I heard the shots, I saw him grab his stomach. At first I thought he was joking because that's what he did. But then his wife came running over to me in tears saying Gerry's been shot, help me. She had blood all over her dress."

Steve Goldman had been standing on the synagogue parking lot talking to Gordon, who had one of his three young daughters in tow. Gordon's wife and other daughters were nearby. Goldman heard a popping noise then felt what he thought was some sort of bug bite his shoulder. Like Ricky, Goldman thought Gordon was joking when he grabbed himself. But then he was lying on the pavement, bleeding from his chest. Goldman swooped up Gordon's little girl and held her tight as they ducked between parked cars to avoid more bullets. "She was yelling for her daddy," Goldman, now 62, remembers. Ricky ran inside to find his parents. He told them Gerry Gordon had been shot. The Gordons, who had recently moved to Chesterfield from Creve Coeur, were among the Kalinas' closest friends.

Kalina talks about the shooting - "There was such disbelief and horror," Rick Kalina recalls. "This was long before cell phones. I remember running to the office of the temple, but it was locked. We needed to find someone to unlock it so we could call an ambulance. I remember people trying to get out of the synagogue as fast as they could." Ambulances arrived quickly and rushed Gordon, 42, to the old St. Louis County Hospital where he died in an operating room about two hours after he was shot. A bullet had pierced his left arm and lodged in his chest, destroying his internal organs. Another guest, William Lee Ash, 30, of Akron, Ohio, lost his left pinkie finger, which got embedded in his hip when he was struck. He was treated and released from County Hospital. In all, five shots were fired in fast succession. One of the bullets passed through Goldman's suit coat, though he was not injured. "I hadn't even realized that I had been hit until a police officer noticed a hole in my jacket," says Goldman.

Franklin's day in court - In 1997, roughly 20 years after the murder at his bar mitzvah, Rick Kalina found himself inside a St. Louis County courtroom listening to Joseph Paul Franklin tell how he wanted to kill as many Jews as possible and how he had traveled from state to state to do so. Kalina listened as prosecutors told how Franklin had chosen BSKI randomly from the Yellow Pages and decided on it after visiting some other synagogues in the St. Louis area. He figured the high grass behind a telephone pole in view of BSKI's parking lot was a good place for him to stage an ambush.

Before the shooting, he purchased some 10-inch nails, a bicycle and a guitar case, which he used to carry a Remington 700 hunting rifle to his hiding location. He made sure to scratch the serial number from his gun so police couldn't trace it. When he arrived that Saturday morning, he hammered the nails into the pole to use as makeshift gun rests. He waited several hours for people to leave the synagogue before opening fire. At roughly 1 p.m., after squeezing off five shots, he made his getaway on bicycle to a nearby location where he had parked his car. Then he drove south, never to be caught until he eventually confessed to the crime 17 years later. "When they would bring (Franklin) into the courtroom, it was like the atmosphere turned ice cold," recalls Kalina, who attended the three-day murder trial alone, without friends or relatives by his side. "It was as if he had sucked all the life out of the room. He has the type of charisma that is just dead. It reeks of death."

In 1994, Franklin was incarcerated at the Marion, Ill., federal penitentiary where he first told the FBI, and later Richmond Heights police, that he was the one who had murdered Gerald Gordon at BSKI. He said a dream told him to confess and he always listens to his dreams. At the time, he was serving six consecutive life sentences -- two federal and four state -- for four murders: the killing of an interracial couple in Wisconsin in 1977 and the killing of two black men in Salt Lake City in 1980 as they jogged with white women. He was involved in roughly 20 violent crimes, including the 1978 shooting of Hustler magazine publisher Larry Flynt, which left Flynt paralyzed, as well as the shooting of then-Urban League President Vernon Jordan, though Franklin was acquitted in 1982.

It took the jury 39 minutes to convict Franklin of the sniper killing of Gerald Gordon and 65 minutes the next day to agree that Franklin should die of lethal injection. Franklin, who was quoted in the St. Louis Post-Dispatch after the trial, claimed after the trial that his only regret was that "killing Jews is not legal."

Aftermath of the shootings - Rick Kalina remembers feeling tremendously guilty and afraid in the aftermath of his bar mitzvah. "I felt a lot of kids pulled back from me. Friends I had (before the shootings) no longer wanted to be my friend," he says. "The anti-Semitism really came to the surface. Our house was vandalized with anti-Semitic slurs. I remember being called a kike. Within a year of the incident, we moved from our house in Crystal Lake to Spoede."

Kalina points out that 30 years ago therapy was something many people, including his parents, shied away from because of how others would perceive it. There were no grief counselors to help him at school. His parents, wanting to protect their son, didn't allow him to attend Gerry Gordon's funeral. Essentially, he was on his own to figure out how to deal with the tragedy. "The world wasn't really equipped to deal with this kind of hate crime," he says. "The entire Jewish community in St. Louis at that point in time hid from this. (The Jewish) Federation didn't take a position or a stand. Today, the organization would set up a scholarship for the children of the victim or raise money to support the family. There would be counseling and help. But it was a different time back then."

Eventually, when he was in his mid-20s, Kalina did go to therapy, in part to help deal with the bar mitzvah incident. "I have issues associated with post-traumatic stress syndrome," he explains. "There are certain times when I feel cornered and threatened and my reactions are not the typical reactions." Kalina, who now belongs to Shaare Zedek Synagogue, says he has a hard time picking up his older daughter from Sunday school. Last year he went to BSKI to attend a bar mitzvah -- the first one he had been to there since his own -- and found himself running to his car when it was over. "I didn't park in the (temple) parking lot," he says. "I parked in the street. There are still really crazy things (I do). And yet I don't want my kids to be affected by my fears and experiences."

Kalina says that until now he has declined to be interviewed about the BSKI shootings because "one of my fears is publicity and the other is that sometimes you don't always get what you're hoping for. It's safer to say 'no comment.'" But he is speaking out, in part because he feels too many people in the Jewish community still "act naively" when it comes to hate violence. "There is still denial in the Jewish community about this," he says. "That in 2009 we had a Nazi organization hold a rally under the Arch and we didn't demand to know who these people are. That's crazy. They could be our teachers, our neighbors, our co-workers. Freedom of speech is one thing, but that stops when it hurts me and the people I love."

Sheila Gordon, the widow of Gerry Gordon, declined to be interviewed for this article because, she says, it is still too painful for her to speak publicly about her husband's murder. Her three daughters, now married with children and each still living in the St. Louis area, also declined to be interviewed.

Joseph Paul Franklin today - One person who is very eager to talk is Joseph Paul Franklin. Currently serving his death sentence at the Potosi Correctional Center in Mineral Point, Mo., about 90 miles southeast of St. Louis, Franklin spends days and nights alone in a cell waiting to be executed. According to the Missouri Department of Corrections, he remains in "administrative/disciplinary segregation for poor institutional behavior" and is no longer allowed in-person interviews with the media. I went to the prison earlier this year and spoke to Franklin by phone.

Now 60 years old, Franklin is eager to discuss everything from his interest in Eastern religions to how meditation turned his life around to what he says was an abusive childhood to a desire for female companionship. When it comes to reflecting on his deadly, four-year crime spree in the late 1970s and the repercussions of hate violence, he says only: "The devil had control over my mind at the time. I was out of my mind for real. It's been, like, 30-something years ago. I've changed a lot. I wish it never happened, but there is no way you can go back and undo something like that." Franklin, who represented himself during the BSKI trial, waived his right to an appeal and requested an execution date after he was sentenced for the sniper killing of Gerald Gordon. Franklin had urged the jury to put him to death, saying he would kill again if he were released. Some time later though, he filed an appeal, which eventually made its way to the Missouri Supreme Court and was denied in June 2000. Franklin says he had changed his mind about being executed because "that's not what the Lord wanted me to do. I get signs from God about what to do. Also, I'm into numerology and get guidance from the numbers." He told me that prior to our conversation, he had checked my numbers using my name and phone number, and they turned out to be good.

Franklin says he "got into white supremacy" when he was around 18 and "became obsessed with anti-Jewish literature." He even changed his name when he was 25 from James Clayton Vaughn Jr. to Joseph Paul Franklin as a tribute to Nazism; Joseph Paul came from Joseph Paul Goebbels, Hitler's minister of propaganda. Franklin grew up in Mobile, Ala., with two sisters and two brothers. He says his father was an alcoholic and his mother was abusive. "My brother and I would sleep together in the same bed when we were little. My mother would think of something we had done wrong during the day and get up in the middle of the night to beat us," he says, adding that he thinks the abuse he endured, coupled with his alcoholism, led him to become violent. He says he no longer hates Jews or blacks, adding, "in fact, just the opposite." Meditation as well as learning about Hinduism, Buddhism and even Judaism, he says, has made him tolerant.

In late January, Missouri Attorney General Chris Koster asked the state Supreme Court to set an execution date for Franklin after a federal appeals court cleared the way for Missouri to resume scheduling executions by rejecting a lawsuit from eight inmates over the training and competence of the state's execution team. As of last week, no execution date for Franklin had been set. Is he fearful about being executed? "No, not really," he says. "I just figure may the will of God be done."

About.Com - Serial Killers: Paul Franklin

"Profile of Serial Killer Joseph Paul Franklin, Serial Extremist Killer," by Charles Montaldo.

Joseph Paul Franklin is a serial extremist killer whose crimes were motivated by a pathological hatred of African Americans and Jews. Fueled by the words of his hero, Adolf Hitler, Franklin went on a killing rampage targeting interracial couples and setting off bombs in synagogues. His killing rampage lasted between 1977 and 1980, ending after his arrest in September 1980.

Childhood Years

Franklin (named James Clayton Vaughan Jr. at birth) was born in Mobile, Alabama on April 13, 1950 and was the second of four children in a volatile impoverished home. As a child Franklin, who felt different from other children, turned to reading books, mostly fairy tales, as an escape from the domestic violence in the home. His sister has described the home as abusive, saying Franklin was the target of much of the abuse.

Teen Years

During his teen years he was introduced to the American Nazi Party through pamphlets and he adopted the belief that the world needed to be "cleansed" of what he considered inferior races - mainly African Americans and Jews. He was in full agreement with the Nazi teachings and he became a member of the American Nazi Party, the Ku Klux Klan, and the National States Rights Party.

Name Change In 1976, he wanted to join the Rhodesian Army, but because of his criminal background he needed to change his name to be accepted. He changed his name to Joseph Paul Franklin - Joseph Paul after Adolph Hitler's minister of propaganda, Joseph Paul Goebbels, and Franklin after Benjamin Franklin. Franklin never did join the army, but instead launched his own war of the races.

Obsessed With Hate

Obsessed with hatred for interracial marriages, many of his killings were against black and white couples he encountered. He has also admitted to blowing up synagogues and takes responsibility for the 1978 shooting of Hustler Magazine publisher, Larry Flynt and the 1980 shooting on civil rights activist and Urban League president Vernon Jordan, Jr. Over the years Franklin has been linked to or confessed to numerous bank robberies, bombings and murders. However not all of his confessions are viewed as truthful and many of the crimes were never brought to trial.

Convictions

•Alphonse Manning and Toni Schwenn - Madison Wisconsin
In 1985 Franklin was found guilty of killing interracial couple Alphonse Manning and Toni Schwenn, both 23 years old. The couple was pulling out of a shopping mall when Franklin rammed their car from behind, then got out and shot Manning twice and Schwenn four times, killing both. He was sentenced to two life terms.

•Bryant Tatum and Nancy Hilton - Chattanooga, Tennessee
In 1977 he pleaded guilty to the July 29, 1978 sniper murder of Bryant Tatum (black) and for attempting to murder his white girlfriend Nancy Hilton. The couple was at a Pizza Hut restaurant in Chattanooga when Franklin, hiding in tall grass near the restaurant, gunned them down. Franklin was found guilty and given a life sentence.

•Donte Brown and Darrel Lane - Cincinnati, Ohio
Cousins Dante Brown, 13, and Darrel Lane, 14, were headed to a local convenience store on June 6, 1980, when Franklin, standing on an overpass, shot two bullets into each child. Lane died at the scene and Brown died a few hours later at the hospital. Franklin was found guilty and sentenced to two life terms.

•Ted Fields and David Martin - Salt Lake City, Utah
Ted Fields, 20, and David Martin, 18, were friends who shared the reputation for being hard working, responsible and with bright futures. On August, 20, they went jogging with two women at Liberty Park. Franklin hit the group with a barrage of bullets, striking Fields three times and Martin five, killing both. One of the women was injured. He was found guilty and received two life sentences.

•Gerald Gordon - Potosi, Missouri
On October 8, 1977, Gerald Gordon, Steven Goldman and William Ash had no idea a Remington 700 hunting rifle was aimed at them while they walked through the synagogue parking lot. Franklin, who had carefully planned his assault the day before, fired five shots at the men, killing Gordon and injuring Goldman and Ash. In February, 1997, a jury found him guilty and sentenced to death by lethal injection.

Eight life sentences and a death sentence has done little to change Franklin's radical racist views. He has told authorities that his only regret is that killing Jews isn't legal. During a 1995 article published by Deseret News, Franklin seemed to boast about his killing sprees and the only regret that he seems to have is that there were victims that managed to survive his murderous rage. Franklin is currently on death row at the Potosi Correctional Center near Mineral Point, Missouri.

Update:

Franklin is scheduled to be executed Nov. 20. 2013 in Missouri. Much has changed since Franklin's 1995 interview. Pointing to his manic depression and mental illness as the driving force behind his fanatical hatred, he now says he regrets his crimes. As for his upcoming execution, Franklin told The Hollywood Reporter, "I firmly believe that a government that forbids killing among its citizens should not be in the business of killing people itself." Apparently, one of his victims agrees- Flynt has spoken out against Franklin's execution.

Missourians to Abolish the Death Penalty

Missourians for Alternatives to the Death Penalty

Wikipedia: Joseph Paul Franklin

Joseph Paul Franklin
From Wikipedia, the free encyclopedia

Born: James Clayton Vaughn, Jr., April 13, 1950, Mobile, Alabama
Died: November 20, 2013 (aged 63), Bonne Terre, Missouri
AKA: The Racist Killer
Motive: Racism, white supremacy
Number of victims: 7–22
Span of killings: August 7, 1977–August 20, 1980
Country: United States
States: Wisconsin, Missouri, Tennessee, Georgia, Virginia, Indiana, Ohio, Pennsylvania, West Virginia, Utah
Date Apprehended: 1980

Joseph Paul Franklin (April 13, 1950 – November 20, 2013) was an American serial killer. He was convicted of several murders, and given six life sentences, as well as a death sentence. He confessed to the attempted murders of two prominent men: the magazine publisher Larry Flynt in 1978 and Vernon Jordan, Jr., the civil rights activist, in 1980. Both survived their injuries, but Flynt was left permanently paralyzed from the waist down. Franklin was not convicted in either of those cases.

Because Franklin has repeatedly changed his accounts of some cases, officials cannot determine the full extent of his crimes. His claims of racial motivation have been offset by a defense expert witness who testified in 1997 that Franklin was a paranoid schizophrenic who was not fit to stand trial. Franklin was on death row for 15 years awaiting execution in the state of Missouri for the 1977 murder of Gerald Gordon.[1][2] He was executed by lethal injection on November 20, 2013.[3]

Early life

Franklin was born James Clayton Vaughn in Mobile, Alabama, to a poor family.[4] He suffered severe physical abuse as a child.[5] As early as high school, he had become interested first in evangelical Christianity, then Nazism, and later held memberships in both the National Socialist White People's Party and the Ku Klux Klan.[6] In the 1960s, Franklin was inspired to try to start a race war after reading Adolf Hitler's political manifesto Mein Kampf. "I've never felt that way about any other book that I read," he would reflect later. "It was something weird about that book."[7]

Crimes

For much of his life, Franklin was a drifter, roaming up and down the East Coast looking for chances to "cleanse the world" of people he considered inferior, especially blacks and Jews.[5]

1977

July 25, 1977. At 3:17 AM, a trunk load of dynamite is detonated outside the home of Jewish pro-Israel lobbyist Morris Amitay and his family. While the home was severely damaged, all occupants escaped except for their 6 month old beagle. Franklin confessed to the crime years later while in prison. "The Many Trials of a Killer," The Mobile Register October 18, 1988 July 29, 1977: Beth Sholom synagogue in Chattanooga is firebombed. Franklin has confessed to the crime.[5] October 8, 1977: Franklin hid in long grass behind a telegraph pole at Brith Shalom, a synagogue in Richmond Heights, Missouri, and fired into a group of worshipers with a hunting rifle, killing Gerald Gordon and injuring two others. He confessed to this murder in 1995 and two years later was tried, convicted and sentenced to die.[5]

1978

Franklin claimed that, on March 6, 1978, he used a .44 caliber rifle to ambush Hustler publisher Larry Flynt and his lawyer Gene Reeves in Lawrenceville, Georgia. In his confession, Franklin said this was in retaliation for an edition of Hustler displaying interracial sex.[5] July 29, 1978: Franklin hid near a Pizza Hut in Chattanooga, and shot and killed Bryant Tatum, a black man, with a 12-gauge shotgun; he also shot Tatum's white girlfriend, Nancy Hilton, who survived. Franklin confessed and pleaded guilty, being given a life sentence, as well as a sentence for an unrelated armed robbery in 1977.[5]

1979

July 12, 1979: Taco Bell manager Harold McIver (27), a black man, was fatally shot through a window from 150 yards (140 m) in Doraville, Georgia. Franklin confessed but was not tried or sentenced for this crime. Franklin said that McIver was in close contact with white women, so he murdered him.[5]

1980

May 29, 1980: Franklin said he shot and seriously wounded civil rights activist and Urban League president Vernon Jordan, Jr. after seeing him with a white woman in Fort Wayne, Indiana. Franklin initially denied any part in the crime and was acquitted, but later confessed.[5] June 8, 1980: Franklin confessed to killing cousins Darrell Lane (14) and Dante Evans Brown (13) in Cincinnati, Ohio. Waiting on an overpass to shoot a racially mixed couple, he shot the boys instead. He was convicted in 1998 and received two life sentences for these murders.[8][9] June 25, 1980: Franklin used a .44 Ruger pistol to kill two hitchhikers, Nancy Santomero (19) and Vicki Durian (26), in Pocahontas County, West Virginia. He confessed to the crime in 1997 to an Ohio assistant prosecutor in the course of investigation in another case; he said he picked up the white girls and decided to kill them after one said she had a black boyfriend. Jacob Beard of Florida, was convicted and imprisoned in 1993 on these charges. He was freed in 1999 and a new trial was ordered based on Franklin's confession.[8] August 20, 1980: Franklin killed two black men, Ted Fields and David Martin, near Liberty Park located in Salt Lake City, Utah.[5] He was tried on federal civil rights charges as well as state first-degree murder charges.[10]

Conviction and imprisonment

Franklin tried to escape during the judgment of the 1997 Missouri trial on charges of murdering Gerald Gordon. He was convicted of the murder charge. The psychiatrist Dorothy Otnow Lewis, who had interviewed him at length, testified for the defense that she believed that he was a paranoid schizophrenic and unfit to stand trial. She noted his delusional thinking and a childhood history of severe abuse.[5] In October 2013, Flynt called for clemency for Franklin asserting "that a government that forbids killing among its citizens should not be in the business of killing people itself."[11] Franklin was held on death row at the Potosi Correctional Center near Mineral Point, Missouri. In August 2013 the Missouri State Supreme Court announced that Franklin would be executed later that year on November 20.[12] Missouri Attorney General Chris Koster said in a statement that by setting execution dates, the state high court "has taken an important step to see that justice is finally done for the victims and their families".[13]

Execution

Franklin's execution was complicated as it took place during a period when various European drug manufacturers refused or objected on moral grounds to having their drugs used in a lethal injection.[14] In response Missouri announced that it would use for Franklin's execution a new method of lethal injection, which used a single drug provided by an unnamed compounding pharmacy.[15] A day before his execution, U.S. District Judge Nanette Laughrey (Jefferson City) granted a stay of execution over concerns raised about the new method of execution.[16] A second stay was granted that evening by U.S. District Judge Carol E. Jackson (St. Louis), based on Franklin’s claim that he is mentally incompetent to be executed. An appeals court quickly overturned both stays,[17] and the Supreme Court subsequently rejected final appeals.[18][19] Franklin was executed at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri on November 20, 2013. The execution began at 6:07 AM CST and he was pronounced dead at 6:17 AM CST.[17] His execution was the first lethal injection in Missouri to use pentobarbital alone instead of the conventional three drug cocktail.[18] An Associated Press news agency journalist said that Franklin swallowed hard as 5g of pentobarbital were administered. It took him 10 minutes to be pronounced dead.[20]

Racist views 'renounced'

In an interview with the St. Louis Post-Dispatch newspaper published on Monday, November 17, 2013, Franklin said he had renounced his racist views. He said his motivation had been "illogical" and was partly a consequence of an abusive upbringing. He said he had interacted with black people in prison, adding: "I saw they were people just like us."[7]

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans

Joseph Paul Franklin

Born James Clayton Vaughn, Jr., in Mobile Alablama, Franklin was the eldest son of an alcoholic drifter who often abandoned his family for months or years at a stretch. Siblings remember that James Vaughn, Sr., would celebrate infrequent homecomings by beating his children, with James, Jr., absorbing the worst punishment. As a youth, Franklin went in for food fads and fringe religions, dropping out of high school after an accident left him with severely impaired eyesight.

The injury was a two-edged sword, exempting Franklin from military conscription, and he married in 1968, at an age when many young men were sweating out the draft lottery, fearful of the war in Vietnam. Soon after their wedding, Franklin's bride noted a change in his personality "like night and day." He began to beat her, emulating the father he hated, and on other occasions she would find him inexplicably weeping. Around the same time, their all-white neighborhood was racially integrated, and Franklin began to veer hard right, into the realm of pathological bigotry.

The next few years were marked by ugly racial incidents and sporadic arrests for carrying concealed weapons. Franklin was increasingly drawn to the American Nazi Party, lapsing into the segregationist movement full-time after mother'shis death, in 1972. Moving to Atlanta, he joined the neo-fascist National States Rights Party, simultaneously holding membership in the local Ku Klux Klan. Franklin began insulting interracial couples in public, and on Labor Day 1976, he trailed one such couple to a dead-end street in Atlanta, spraying them with chemical Mace. Around this time, Franklin legally changed his name, shedding the last links with his "normal" life. Federal prosecutors allege -- and jurors have agreed -- that he spent the years 1977 to 1980 wandering across the South and Midwest, employing 18 pseudonyms, changing cars and weapons frequently, dying his hair so often that it came close to falling out. Along the way, he killed some thirteen persons in a frenzied, one-man war against minorities.

According to the FBI, Franklin launched his campaign in the summer of 1977, bombing a Chattanooga synagogue on July 29. Nine days later, investigators say, he shot and killed Alphonse Manning and Toni Schwenn, an interracial couple, in Madison, Wisconsin. On October 8, Gerald Gordon was killed by sniper fire as he left a bar mitzvah in the St. Louis suburb of Richmond Heights.

Harold McIver, the black manager of a fast-food restaurant in Doraville, Georgia, was working the night shift when a sniper took his life on July 22, 1979. Three months later, in Oklahoma City, another interracial couple came under attack from the itinerant gunman. Jesse Taylor was hit three times with a high-powered rifle before he expired; a single round through the chest killed Marian Bresette as she ran to the aide of her common-law husband.

Franklin struck twice in Indianapolis during January 1980, killing black men with long-distance rifle fire in two separate attacks. On May 3, he allegedly killed a young white woman, Rebecca Bergstrom, dumping her body near Tomah, in central Wisconsin. On June 8 he surfaced in Cincinnati, bagging cousins Darrell Lane and Dante Brown from his sniper's perch on a nearby railroad trestle. A week later, in Johnstown, Pennsylvania, Franklin shotgunned a black couple -- Arthur Smothers and Kathleen Mikula -- as they crossed a downtown bridge. On August 20, joggers Ted Fields and David Martin were cut down by rifle fire in Salt Lake City, Utah.

Arrested in Kentucky on September 25, 1980 (and recaptured a month later, after escaping to Florida), Franklin faced a marathon series of state and federal trials, with mixed results.

In 1982, he was acquitted of federal civil rights charges in the May 1980 shooting that left civil rights leader Vernon Jordan critically injured in Fort Wayne, Indiana. Utah juries found him guilty of murder and civil rights violations; Franklin was serving life on those counts in 1983 when he confessed the 1978 sniping that crippled Hustler magazine publisher Larry Flint in Gwinnett County, Georgia. (Franklin was indicted for that crime but never tried, since he already faced stiffer penalties in other states.)

More convictions followed: for the Chattanooga bombing; for the double murder in Wisconsin, described by prosecutors as "the closest thing to killing for sport"; for the murder of Gerald Gordon, killed leaving a Clayton, Missouri synagogue in 1977 (his first death sentence); for the June 1980 double murder in Cincinnati; for the 1978 murder of William Tatum, shot while talking to a white woman outside a Chattanooga restaurant. Other crimes confessed by Franklin without further convictions include the 1980 murder of teenager Nancy Santomero at a peace retreat in West Virginia; the 1980 murders of an interracial couple in Pittsburgh, Pennsylvania; the 1980 murders of an interracial couple in Johnstown, Ohio; and the separate 1979 murders of a white woman and a black man in Decatur, Georgia. Overall, investigators believe Franklin is responsible for at least 18 murders and five nonfatal shootings in 11 states, plus two bombings and 16 bank robberies.

Daily Mail

"Neo Nazi serial killer Joseph Paul Franklin executed after Court overturns last-minute appeal over injection drug," by James Nye, Ryan Gorman and Associated Press Reports. (10:33 EST, 20 November 2013)

Joseph Paul Franklin admitted to killing 22 people across multiple states between 1977 and 1980 He was executed less than an hour after the U.S. Supreme Court put an end to last-minute legal maneuvering Franklin declined his last meal, made no statement and said nothing in the death chamber He was on Missouri death row for the 1977 killing of a Jewish man outside a St. Louis synagogue His lawyers argued pentobarbital was inhumane Mr Franklin also shot Hustler publisher Larry Flynt in 1978 in Georgia The Neo-Nazi serial killer who targeted blacks and Jews and paralyzed pornographer Larry Flynt in 1978 has been executed.

Early this morning, the U.S. Supreme Court upheld the appeal of two last-minute stays of execution granted to Joseph Paul Franklin over the single drug Missouri planned to use in his execution. Less than one hour later, at 6.17am CST, Franklin's death sentence was carried out with an injection of pentobarbital at the state prison in Bonne Terre, Missouri. It was Missouri's first execution in three years and the first using the single drug - a sedative that caused the accidental overdose of Michael Jackson. Pentobarbital is starting to replace three-drug lethal injection cocktails that had previously been used because drug manufacturers will no longer provide them to US prisons. Franklin rejected his last meal. He also made no statement before his execution and said nothing in the death chamber. As he was injected with the drug, he blinked, breathed heavily, swallowed hard and slipped away within minutes, the St. Louis Post-Dispatch reports.

Franklin had been convicted of murdering seven people and admitted to killing up 22 during a cross-country reign of terror that lasted from 1977 through 1980. Franklin was a sniper motivated by racism. He targeted blacks and Jews and whites who were seen mingling with members of other races. A paranoid schizophrenic, Franklin claimed he wanted to start a race war.

Franklin's fate was sealed early Wednesday when the U.S. Supreme Court upheld a federal appeals court ruling that overturned two stays granted Tuesday evening by district court judges in Missouri. The Missouri Department of Correction wasted no time in executing him. Of all the killings Franklin admitted to, it was for the 1977 sniper shooting of Gerald Gordon at a suburban St. Louis synagogue that he was executed. Authorities provided no account of execution, except to say that he died at 6.17am CST.

A federal judge had ruled Tuesday afternoon that a lawsuit filed on behalf of Mr Franklin and 20 other Missouri inmates on death row arguing the dangers of propofol must be resolved before anyone can be executed. Lawyers for the serial killer have argued the drug can cause contamination and pain above and beyond thresholds allowed by the Eight Amendment - which prohibits cruel and unusual punishment. The judge on Tuesday agreed, writing that the state 'has not provided any information about the certification, inspection history, infraction history, or other aspects of the compounding pharmacy or of the person compounding the drug.' A separate ruling from another judge Tuesday called Mr Franklin's mental capacity into question, and said his mental illness should be reviewed before he is put to death. His mental state is such that he wasn't even aware he was on death row. 'He was happy,' his attorney told the Salt Lake Tribune. 'I’m not really convinced that he totally understands that he was going to die.'

Mr Franklin earlier this week confirmed to CNN he was responsible for the cold-blooded execution-style deaths of 'approximately' 22 people. He was devoid of emotion as he attempted to justify his killings - which famously included an attempt on the life of Hustler porn supremo Larry Flynt - who incredibly tried to stop his shooters execution.

Following his 1980 arrest, Mr Franklin told detectives that he selected the St Louis synagogue from the Yellow Pages of the telephone directory because he wanted to 'find a Jew and kill him,' according to reports. The white supremacist was also convicted in the 1977 killing of an interracial couple in Madison, Wisconsin, as well as in the 1980 shooting deaths of two black joggers in Salt Lake City. Mr Franklin's other convictions include the murders of a two teenage black boys and the bombing a synagogue in Chattanooga, Tennessee in 1977. 'I felt like I was at war. The survival of the white race was at stake,' he told Kyung Lah of CNN in an interview that was to be his last before being executed. 'I consider it my mission, my three-year mission. Same length of time Jesus was on his mission, from the time he was 30 to 33.'

Joseph Paul Franklin, a dedicated neo-Nazi, is scheduled to die by lethal injection at 12.01am on November 20 for the sniper killing of 42-year-old Gerald Gordon outside a suburban synagogue in St. Louis in 1977. Among his alleged crimes were two high-profile shootings — of civil rights leader Vernon Jordan in Fort Wayne, Indiana, in 1980, and the man he calls his 'old pal' - porn mogul Larry Flynt, in Lawrenceville, Georgia, in 1978. Both men survived.

Mr Franklin told CNN he believed he was going to start a race war and that his preferred method to kill his victims was to stalk them and set up a sniper's nest from which he pick them off using a high-powered rifle. Seemingly still in denial, Mr Franklin tried to blame his rough childhood on his three-year orgy of violence. 'My momma didn't care about us,' he said, as he complained he wasn't fed properly and not allowed to play with other children. Finding another family in the white supremacist groups in the American South in the 1960s, Mr Franklin felt he found his calling after reading Adolf Hitler's political manifesto 'Mein Kampf'. 'I've never felt that way about any other book that I read,' he said, 'it was something weird about that book.' At 26, he changed his name to Joseph Paul Franklin to honor Nazi propaganda minister Paul Joseph Goebbels and founding father Benjamin Franklin. He even attempted to link himself to infamous serial killer Charles Manson by having the words 'Helter Skelter' tattooed on his arm in reference to |Mr Manson's inspiration provided by The Beatles 'White Album'. The tattoo artist rebuffed the attempt, the tattoo never came.

Mr Franklin explained that he hoped his early murders would set an example to other would-be soldiers in his one-man war on minorities. 'I figured once I started doing it and showed them how, other white supremacists would do the same thing.'

Mr Franklin then shockingly claimed minorities he once targeted now have a kinship with him. 'When you commit a crime against a certain group of people, a bonding takes place. It seems like you belong to them,' he said. In addition to the murder of Mr Gordon outside a bar mitzvah, Mr Franklin was convicted of killing Alphonse Manning and Toni Schwean in Madison, Wisconsin, because they were an interracial couple. He also confessed to shooting dead college student Rebecca Bergstrom, after she told him in passing that she dated a Jamaican man. His most shocking murder was that of 13-year-old Dante Evans and his cousin 14-year-old Darrell Lane in Cincinnati - two African Americans jogging with white female friends. Joseph Deters, who prosecuted that Cincinnati case said, 'He's just a creep. There's no other way to describe him. And what he did to those two kids because of the color of their skin is incomprehensible.'

Hustler chief Flynt was standing trial on an obscenity charge in Georgia in 1978 when he was wounded by a sniper's bullet. No one was arrested at the time, but the shooting has since been linked to Mr Franklin. Gwinnett County, Ga., District Attorney Danny Porter said he is convinced Franklin shot Flynt because Franklin provided information only the shooter would know — details about the shooting location, the type of weapon used, even the maker of the gun. The details were divulged while the killer served time in the 1990s in a Georgia prison. Mr Franklin said he shot the pornographer because of a magazine front cover showing an interracial couple. 'I saw that interracial couple he had, photographed there, having sex,' he told CNN, referring to the December 1975 issue of Hustler 'It just made me sick. I think whites marry with whites, blacks with blacks, Indians with Indians. Orientals with orientals. I threw the magazine down and thought, I'm gonna kill that guy.'

However, Mr Porter said he opted against filing charges because Franklin had already been convicted of multiple killings and said it didn't make sense to bring him back to Georgia to face trial for shooting Mr Flynt. Incredibly, the Hustler founder has become an unlikely supporter of Franklin's - in so much as he doesn't want him to face the death penalty. Mr Flynt would rather his shooter rot away in a prison cell. 'The government has no business at all being in the business of killing people,' said Flynt. '(It's) much more punishment to put somebody in prison for the rest of their lives than it is to snip their life out in a few seconds with a lethal injection.' Mr Flynt's sadistic hopes have been kept alive for the time being.

State v. Franklin, 969 S.W.2d 743 (Mo. 1998). (Direct Appeal)

PROCEDURAL POSTURE: Defendant sought review of his conviction and death sentence from the Circuit Court of St. Louis County (Missouri) for capital murder. Defendant also appealed convictions for two counts of felonious assault for which he was sentenced to two concurrent terms of life imprisonment. OVERVIEW: The court ordered the dismissal of defendant's appeal because he wrote to the court stating that he did not wish to appeal the case and requested the court to set an execution date. However, the court was required to conduct a proportionality review under Mo. Rev. Stat. § 565.014 (1978). The purpose

of the proportionality statute was to ensure that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; that the evidence supported a statutory aggravating circumstance; and that the sentence was not excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant. The court found no evidence that the sentence of death was imposed due to the influence of passion, prejudice, or any other arbitrary factor. The evidence supported two of the statutory aggravating factors submitted to and found by the jury. The court also found that because the death sentence had been imposed repeatedly for murders similarly carried out pursuant to an elaborate plan, defendant's sentence was neither excessive nor disproportionate in light of the crime and the strength of the evidence against him.

OUTCOME: The court affirmed defendant's sentence of death from the trial court.

OPINION BY: STEPHEN N. LIMBAUGH, JR.

Joseph Franklin was convicted of capital murder and sentenced to death. He was also convicted of two counts of felonious assault for which he was sentenced to two concurrent terms of life imprisonment. From the record, Franklin appears to have waived his appeal both orally and in writing at the time of sentencing, but the issue is clouded somewhat by the fact that his lawyers then filed a motion for new trial and that he, himself, executed a motion for leave to file appeal in forma pauperis. Thereafter, Franklin's lawyers filed a notice of appeal and briefed and argued the case (including the waiver issue) to this Court. After oral argument, this Court, seeking to determine whether Franklin did, in fact, wish to pursue the appeal, ordered him to respond in writing, one way or the other. Having now received Franklin's response in which he advises unequivocally that he does not wish to appeal the case and requests this Court to set an execution date, this Court orders the appeal dismissed.

Despite the dismissal of the appeal, this Court is required to conduct a proportionality review under section 565.014, RSMo 1978. 1 The purpose of the proportionality statute is to ensure that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; that the evidence supports a statutory aggravating circumstance; and that the sentence is not excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant. Sec. 565.014, RSMo 1978. Although Franklin abandoned his appeal, this Court has the benefit of the record on appeal from which to review the evidence.

1 The 1978 version of this statute controls in this case because the crime was committed in 1977; the 1994 version of this statute, section 565.035, RSMo 1994, only covers crimes occurring after October 1, 1984. Sec. 565.001, RSMo 1994.

From that record, this Court finds no evidence that the sentence of death was imposed due to the influence of passion, prejudice, or any other arbitrary factor. This Court also finds that the evidence supports at least two of the three statutory aggravators submitted to and found by the jury. The three aggravators include: 1) that Franklin had a substantial history of serious assaultive convictions; sec. 565.012.2(1), RSMo 1978 (repealed 1984); 2) that Franklin by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon which would normally be hazardous to the lives of more than one person; sec. 565.012.2(3), RSMo 1978 (repealed 1984); and 3) that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of the mind. Sec. 565.012.2(7), RSMo 1978. Regarding the first aggravator, the record shows that before Franklin committed the murder in this case, he dynamited a synagogue in Hamilton County, Tennessee, and was convicted of the federal offenses of felonious injury to a building with explosives and felonious possession of explosives. These convictions, although based on atrocious conduct, do not constitute a substantial history of serious assaultive convictions because they do not involve assaults upon persons.

The remaining aggravating circumstances are amply supported by the evidence adduced at trial. In September of 1977, believing that Jews were "enemies of the white race," Franklin drove to Dallas, Texas after robbing a bank in Little Rock, Arkansas. In Dallas, Franklin bought a 30-06 rifle with a telescopic sight. He then drove to St. Louis, Missouri, checked into a hotel, scouted the city for synagogues, and finally chose Brith Sholom Kneseth Israel Congregation in Richmond Heights. To prepare for the crime, Franklin bought some ten-inch nails, a guitar case, and a bicycle. He tested the bicycle to assure himself that it could be used to enable him to leave the scene of the crime. He drove the nails into a telephone pole to serve as a rifle rest. Later, he ground the serial number off of the rifle. He then cleaned the rifle, ammunition, and guitar case of any fingerprints and, thereafter, he used gloves to handle the equipment. Lastly, he put the rifle into the guitar case and hid them both in some bushes near the synagogue.

On Saturday, October 8, 1977, Franklin waited outside the synagogue for people to emerge. Shortly before 1:00 p.m., some of the guests left the synagogue and walked toward their cars. Franklin began firing on the guests. He fired five shots from approximately one hundred yards. Gerald Gordon was shot in the left side of his chest and later died from blood loss resulting from damage to his lung, stomach, spleen, and other internal organs. Steven Goldman was grazed on the shoulder. William Ash was wounded in the left hand and later lost his small finger on that hand. Having fired all his ammunition, Franklin abandoned the rifle and the guitar case. He then rode his bicycle to a nearby parking lot where his automobile was parked, hid the bicycle in some bushes, and left St. Louis by car. Under these circumstances, the jury could reasonably find that Franklin knowingly created a great risk of death to more than one person in a public place with a dangerous weapon that would normally be hazardous to the lives of more than one person, and that the murder was outrageously vile, horrible or inhuman in that it involved depravity of the mind. A finding of two of the three statutory aggravating circumstances is sufficient to support an imposition of the death penalty under section 565.014, RSMo 1978 . State v. LaRette, 648 S.W.2d 96, 102 (Mo. banc 1983).

Finally, this Court holds that the punishment is not excessive. To determine whether a sentence is proportionate, this Court compares similar cases where the death sentence was imposed. The sentence of death has been imposed repeatedly for murders similarly carried out pursuant to an elaborate plan. State v. Copeland, 928 S.W.2d 828 (Mo. banc 1996); State v. Leisure, 749 S.W.2d 366 (Mo. banc 1988); State v. Guinan, 665 S.W.2d 325 (Mo. banc 1984); State v. Smith, 649 S.W.2d 417 (Mo. banc 1983); State v. Blair, 638 S.W.2d 739 (Mo. banc 1982). Death sentences have also been imposed in numerous cases where the murder was an act of depravity. State v. Johnston, 957 S.W.2d 734 (Mo. banc 1997); State v. Hutchison, 957 S.W.2d 757 (Mo. banc 1997); State v. Simmons, 955 S.W.2d 729 (Mo. banc 1997); State v. Hall, 955 S.W.2d 198 (Mo. banc 1997); State v. Roberts, 948 S.W.2d 577 (Mo. banc 1997); State v. Tokar, 918 S.W.2d 753 (Mo. banc 1996). Accordingly, Franklin's punishment is neither excessive nor disproportionate in light of the crime and the strength of the evidence against him.

The sentence of death is affirmed. Stephen N. Limbaugh, Jr., Judge. All concur.

Franklin v. State, 24 S.W.3d 686 (Mo. 2000). (PCR)

PROCEDURAL POSTURE: Appellant's underlying convictions were for capital murder and two counts of assault with intent to do great bodily harm with malice aforethought for which he received a death sentence and two concurrent sentences for life imprisonment. Appellant challenged the judgment of the Circuit Court of St. Louis County (Missouri) overruling of his Mo. R. Crim. P. 29.15 motion.

OVERVIEW: In 1994, appellant confessed to having committed the shooting upon the congregants of a synagogue as they departed from worship services in 1977. Two months before his trial, appellant filed a motion to waive his right to counsel and proceed to trial pro se. That day, his attorneys challenged his competency to appear pro se. The trial judge conducted a hearing on the issue of appellant's competency and found him competent to stand trial. On direct appeal, appellant's attorney alleged that the trial court erred when it found appellant competent to proceed. That claim was dismissed following appellant's letter waiving his appeal. The issue of appellant's competency, and all the relevant evidence he cited to support his contention that he was not competent to proceed, was fully litigated before the trial court and dismissed on direct appeal. As no new evidence was presented to show that appellant's mental condition had changed since trial, appellate counsel could not be deemed ineffective for failing to request a reevaluation of appellant's competency.

OUTCOME: Judgment affirmed; trial court did not err in finding appellant competent to proceed to trial. Appellant was allowed to represent himself pro se. Appellant's competency was litigated before the trial court and dismissed on direct appeal. As appellant introduced no new evidence regarding his competency, appellate counsel's failure to request a reevaluation was not ineffective assistance.

OPINION BY: Ronnie L. White

This appeal follows the overruling of Franklin's Rule 29.15 motion. The underlying convictions were for capital murder, section 565.001, RSMo 1978 (repealed in 1984), and two counts of assault with intent to do great bodily harm with malice aforethought, section 559.180, RSMo 1969 (repealed in 1979). For his crimes, Franklin received a death sentence and two concurrent sentences for life imprisonment. This Court has jurisdiction. 1 The judgment is affirmed.

1 Mo. Const. Art. V., Section 10; order of June 16, 1998 (effective July 1, 1998).

In September 1977, Franklin drove to Dallas, Texas, after robbing a bank in Little Rock, Arkansas. While in Dallas, Franklin purchased a 30.06 rifle through a classified advertisement and took the weapon to a firing range to properly adjust his telescopic sight and practice his marksmanship. After spending a week in Dallas, he drove to Oklahoma City, Oklahoma. Franklin had previously bombed a synagogue and another building and had long considered developing a plan to murder numerous Jews as they left synagogue, as he believed that African-Americans and Jews were "enemies of the white race." He ultimately decided not to execute his plan in Oklahoma City, but instead chose St. Louis, which he believed to have a large Jewish community. In the last week of September or the first week of October, Franklin drove to St. Louis and checked into a hotel under an assumed name. After scouting numerous synagogues, he chose Brith Sholom Kneseth Israel Congregation in Richmond Heights. In preparation for his crime, Franklin purchased some ten-inch nails, a guitar case, and a bicycle. He then rode the bicycle to the synagogue to ensure that it could enable him to swiftly leave the scene of the crime. He then hammered two nails into a nearby telephone pole to serve as a gun rest.

Some time before the crime, Franklin ground the serial numbers off the rifle he purchased in Dallas. He thoroughly cleaned the rifle, the ammunition, and the guitar case to remove any fingerprints. At all times thereafter, he used gloves to handle this equipment. He placed the rifle in the guitar case and hid it in some bushes near the synagogue. On October 8, 1977, Franklin lay in ambush for members of the congregation to emerge. As the guests left the synagogue shortly after 1:00 p.m., Franklin began firing upon them from approximately one hundred yards. Gerald Gordon was shot in the left side of his chest. He later died from his injuries. Both Steven Goldman and William Ash were severely wounded during the shooting. After expending his ammunition, Franklin abandoned the rifle and guitar case in the bushes. He rode the bicycle to his car in a nearby parking lot, hid the bicycle, and fled St. Louis.

The case remained unsolved for a number of years. In 1994, while serving six consecutive life sentences at the federal penitentiary in Marion, Illinois, Franklin contacted an agent from the Federal Bureau of Investigation and requested to speak with him. During an interview with the agent, Franklin confessed to having committed the shooting upon the congregants of Brith Sholom Kneseth Israel Congregation as they departed from worship services on October 8, 1977.

At trial, Franklin presented no evidence. He urged the jury during closing argument to sentence him to death. After some deliberation, the jury returned with Franklin's death sentence. The court then imposed that sentence, along with two concurrent terms of life imprisonment for felonious assault.

At the time of his sentencing, Franklin executed a written waiver of appeal. After his advisory counsel filed a notice of appeal, Franklin sent a letter to this Court dated May 27, 1998, stating, "…I do NOT wish to appeal case No. 79735. Please set an execution date as soon as possible, either in July or August of this year." On June 16, 1998, this Court handed down its opinion. The Court conducted an independent review of Franklin's sentence on proportionality grounds as required by section 565.035.3, RSMo 1994, and held that Franklin's sentence was proper. 2

2 See State v. Franklin, 969 S.W.2d 743 (Mo. banc 1998).

On October 9, 1998, Franklin filed a timely pro se Rule 29.15 motion. Counsel was appointed and an amended motion was filed on January 29, 1999. The motion court issued its findings of fact and conclusions of law, which overruled Franklin's Rule 29.15 motion without an evidentiary hearing. Franklin appeals that judgment to this Court.

II.

In his first allegation of error, Franklin asserts that he received ineffective assistance of counsel when his attorney failed to move this Court to stay his direct appeal pending a determination whether Franklin was competent to waive his direct appeal as requested in his letter to this Court. Appellate review of a motion court's decision in a Rule 29.15 proceeding is limited to a determination of whether the findings of fact and conclusions of law made by the motion court are clearly erroneous. 3 The motion court's decision will be considered clearly erroneous if a full review of the record leaves the appellate court with a definite and firm impression that a mistake has been made. 4

3 Rule 29.15(j). 4 State v. Schaal, 806 S.W.2d 659, 667 (Mo. banc 1991).

Rule 29.15(g) requires an evidentiary hearing to be held if one is requested and if the files and records of the case fail to conclusively show that the movant is not entitled to relief. A movant is entitled to an evidentiary hearing if (1) he alleges facts that warrant relief, if true; (2) the allegations are not refuted by the record; and (3) the movant was prejudiced by the alleged errors. 5 "With respect to claims related to ineffective assistance of counsel, to obtain an evidentiary hearing, the movant must allege facts, not refuted by the record, showing that counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that movant was thereby prejudiced." 6

5 State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997). 6 Id.

Two months before his trial, Franklin filed a motion to waive his right to counsel and proceed to trial pro se. That day, his attorneys challenged his competency to do so. Judge Robert Campbell conducted a hearing on the issue of Franklin's competency. Franklin was evaluated separately by two psychiatrists, one chosen by the defense, the other chosen by the court. The psychiatrist chosen by the defense was Dr. Dorothy Lewis. Dr. Lewis testified that while Franklin did understand the proceedings against him and the consequences he may face, he was unable to assist his attorneys in his defense because he suffered from paranoid schizophrenia. She opined that his decision to reject the assistance of his counsel was the result of delusions and hallucinations associated with his schizophrenia.

Dr. S.D. Parwatikar conducted Franklin's pretrial chapter 552 examination for the court. Dr. Parwatikar diagnosed Franklin as suffering from a paranoid personality disorder, but concluded that Franklin had excellent insight into his legal situation, that he was capable of assisting his attorneys if he wished, and that he was competent to proceed. Dr. Parwatikar did note that Franklin exhibited many examples of idiosyncratic thinking. These included his beliefs that Jews were the cause of all evil in the world, that spirit guides spoke to him and guided him in various life decisions, and that the government, media, and film industry in the United States were the "great Satan." These idiosyncrasies, however, did not rise to the level of delusions associated with paranoid schizophrenia affecting Franklin's competency, according to Dr. Parwatikar.

During the competency hearing, Franklin actively opposed his attorneys' efforts to have him declared incompetent to proceed. Upon taking the stand, he admitted to having certain "neuroses" and personality disorders, but refuted the notion that he was schizophrenic. Upon questioning regarding his competence, Franklin accurately described the charges against him, the possible punishments he might receive, and the respective roles of those persons involved in the proceedings. When asked whether he was capable of assisting his attorneys, Franklin described how he informed his attorneys that he did not believe he could be prosecuted for armed criminal action because the statute was enacted after his crime. He was correct and the prosecution dropped the charges.

At the hearing's conclusion, Judge Campbell found Franklin to be competent to proceed. The court noted that it found Dr. Parwatikar's testimony more compelling than that of Dr. Lewis and expressed disbelief in Dr. Lewis' diagnosis that Franklin was delusional. On direct appeal to this Court, Franklin's attorney alleged that the trial court erred when it found Franklin competent to proceed. To support his argument, he argued that the testimony given by Dr. Lewis was more credible than that of Dr. Parwatikar. This Court dismissed that claim following Franklin's letter waiving his appeal.

In order to prove that he was deprived of the effective assistance of counsel on appeal, Franklin must first show (1) that the actions of his appellate attorney were "outside the wide range of professionally competent assistance," 7 and (2) that his counsel's errors were so severe that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" 8 and (3) that counsel's deficient performance resulted in prejudice. 9 To support a claim of ineffectiveness regarding an attorney representing the defendant on direct appeal from his conviction, "strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized and asserted it." 10

7 Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). 8 Id. at 687. 9 Id. 10 Moss v. State, 10 S.W.3d 508, 514 (Mo. banc 2000).

The issue of Franklin's competency, and all the relevant evidence he cites to support his contention that he is not competent to proceed, was fully litigated before the trial court. That court found Franklin to be competent. Franklin's attorney on direct appeal raised the issue as a claim of error before this Court. This Court dismissed that issue on direct appeal. The only evidence submitted by Franklin in support of his motion that did not come directly from the trial record is that a spirit guide instructed him to waive his direct appeal. While this particular instruction by a spirit guide may constitute new evidence, Franklin's reliance on spirit guides was well documented in the trial record. The same or similar guides had instructed Franklin at varying times to initially confess to the shootings, to speak to the media, and to seek castration for his sins. Nonetheless, the trial court determined that he was competent to proceed. This Court gives deference to the trial court's determination of a defendant's competence, as the trial court may observe the defendant's behavior first-hand. 11 Previous instructions to Franklin by the spirit guide(s) were found insufficient to cast doubt on his competence. The instruction to waive his direct appeal is no different. As no new evidence has been presented to show that Franklin's mental condition has changed since trial, appellate counsel can not be deemed ineffective for failing to request a reevaluation of Franklin's competency.

11 State v. Hampton, 959 S.W.2d 444, 449-50 (Mo. banc 1997);

III.

Franklin next alleges that his trial counsel erred when counsel refused to present evidence at trial of Franklin's obsessive/compulsive behavior and that his confession to the crime was motivated by threats to his life that he experienced as an inmate at the federal penitentiary in Marion, Illinois. Franklin insists that he would not have waived counsel and proceeded to trial pro se if his attorney had agreed to present this evidence. Franklin's claims of error fail for two reasons. First, his motion to the court failed to allege facts showing that he suffered prejudice. To obtain an evidentiary hearing on claims of ineffective assistance of counsel, the movant must allege facts, not refuted by the record, showing (1) that counsel's performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) that the movant was thereby prejudiced. 12 To show prejudice, "the facts alleged must show a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" 13

12 State v. Carter, 955 S.W.2d 548, 554 (Mo. banc 1997). 13 Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)).

In his Rule 29.15 motion, Franklin's only claim of prejudice is that he was deprived of his right to counsel. Franklin's mere assertion that he would not have chosen to proceed pro se had counsel been willing to present certain evidence does not form the basis of a reasonable assumption that the final outcome of the trial would have been any different. A defendant who proceeds pro se is bound by the same rules as a party represented by counsel. 14 Our courts cannot hold pro se defendants to a different standard than those represented by counsel. 15

14 State v. Ellis, 949 S.W.2d 279, 280 (Mo. App. 1997). 15 Id.

Second, notwithstanding the procedural flaws in his motion, Franklin fails to allege facts that are not refuted by the record. Throughout his competency hearing, Franklin argued vigorously that he was fully competent to proceed to trial. Throughout trial, Franklin actively sought his own conviction and death sentence. Addressing Dr. Lewis' diagnosis that he suffered from paranoid schizophrenia, Franklin noted that while he had a condition known as obsessive-compulsive disorder, it had no effect on his ability to control his actions and understand their consequences. Explaining his disorder, he said: But people with obsessive-compulsive disorder are not psychotic and they're not crazy. It's just an anxiety disorder that affects about 2 percent of the population. And people with it can function just as well as anyone else. The only problems they have are with various obsessions and compulsions that make them want to wash their hands and do other, you know, unnecessary things.

Similarly, the record refutes the notion that death threats while in federal prison motivated Franklin to seek his own death sentence in Missouri. True, Franklin did suggest that that he believed certain individuals at the federal prison in Marion were trying to kill him and that he would prefer being sentenced to death in Missouri than being killed at the federal prison. However, when expressly asked during his competency hearing whether he confessed to the murder of Gerald Gordon in order to get out of the federal prison, he emphatically denied it to be his motivation. As discussed in Part II, Franklin has stated numerous times that his motivation for confessing came not from these death threats, but from a spirit guide who told him to confess and seek his own execution.

IV.

In his final points on appeal, Franklin alleges that the motion court erred because the findings of fact and conclusions of law entered by that court were fatally flawed. His specific claims include that the court entered inadequate findings regarding his appellate counsel's failure to request a competency hearing regarding his waiver of appeal and trial counsel's failure to present evidence of his obsessive/compulsive behavior and threats to his life while in federal prison. Under Rule 29.15(j), a motion court is required to issue findings of fact and conclusions of law on all issues presented, without regard to whether an evidentiary hearing is held. 16 However, the court is not required to individually address every claim brought by the movant. 17 Generalized findings are sufficient so long as they permit the appellate court an adequate record for appellate review of movant's claims. 18

16 Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993). 17 State v. Taylor, 929 S.W.2d 209, 223-24 (Mo. banc 1996). 18 Id.

Franklin's claim of error regarding the findings entered by the motion court is without merit. The motion court heard evidence and gave very specific findings that it found Dr. Parwatikar's testimony more compelling than that of Dr. Lewis, concluding Franklin to be competent. The court also noted Franklin's shrewdness during questioning by his defense attorneys trying to prove him incompetent against his wishes. Second, while the court did not specifically address the issues regarding his obsessive/compulsive disorder and the threats on his life in federal prison, we find that the court's generalized findings were sufficient to permit adequate appellate review. Furthermore, as discussed in Parts II and III, these claims are without merit and Franklin would not be entitled to relief as a matter of law. 19

19 White v. State, 939 S.W.2d 887, 903 (Mo. banc 1997) (holding that an appellate court shall not order remand for the motion court to enter more specific findings where the movant is clearly entitled to no relief as a matter of law).

The remainder of Franklin's claims involve a litany of allegations regarding the constitutionality of various aspects of his trial. Postconviction motions cannot be used as a substitute for direct appeal or to obtain further appellate review. 20 Issues capable of being raised on direct appeal - even constitutional issues - may not be raised in postconviction proceedings except where fundamental fairness requires otherwise and only in rare and exceptional circumstances. 21 We find that the trial court did not err where it declined to enter specific findings concerning these claims because they were specifically raised on appeal and Franklin chose to voluntarily request dismissal of that appeal.

20 State v. Jones, 979 S.W.2d 171, 181 (Mo. banc 1998). 21 State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992).

For the foregoing reasons, the judgment of the motion court is affirmed. Ronnie L. White, Judge. All concur.

State v. Franklin, 714 S.W.2d 252 (Tenn. 1986).

PROCEDURAL POSTURE: The State appealed a judgment by the Court of Criminal Appeals (Tennessee), which reversed defendant's convictions for malicious injury to structures with explosives in violation of Tenn. Code Ann. § 39-3-703(a) and unauthorized possession of explosives in violation of Tenn. Code Ann. § 39-3-706.

OVERVIEW: Although defendant was represented by counsel at every stage of his prosecution, he was allowed to make a closing statement to the jury along with his court-appointed attorneys. The jury convicted him of malicious injury to structures with explosives (Bombing) and 6 to 10 years for possession of explosives to be served consecutively. Defendant was sentenced to 15 to 21 for bombing. The court of criminal appeals reversed on the ground that the trial court abused its discretion in allowing him to participate in closing argument. On appeal, the court reversed and directed that the convictions and sentences be reinstated. The court held that trial court did not abuse its discretion in permitting hybrid representation. The noted that the entire case was atypical. The court would not second-guess the trial court on its decision to allow defendant to participate in his representation. The court found noted defendant never sought to disrupt the proceedings and was generally well mannered throughout the proceedings.

OUTCOME: The court reversed the judgment and ordered the reinstatement of defendant's convictions for malicious injury to structures with explosives and unauthorized possession of explosives.

OPINION BY: DROWOTA

This case presents an unusual issue. Defendant, Joseph Paul Franklin, although represented by counsel at every stage of his prosecution, spontaneously requested and was permitted by the trial court to make a closing statement to the jury along with the arguments of his two court-appointed attorneys. Defendant was indicted on March 7, 1984, by the Hamilton County Grand Jury on charges of malicious injury to structures with explosives, T.C.A. § 39-3-703(a) (bombing), and unauthorized possession of explosives, T.C.A. § 39-3-706. Convicted by a jury, Defendant was sentenced to 15 to 21 years for bombing and to 6 to 10 years for possession of explosives, to be served consecutively. The Court of Criminal Appeals held that Defendant had not knowingly and intelligently waived his right to the assistance of counsel and that the trial court had abused its discretion in allowing Defendant to participate in closing argument, reversing and remanding the case for a new trial. Having granted the State's application for permission to appeal pursuant to Rule 11, T.R.A.P., we now reverse the Court of Criminal Appeals and reinstate the judgment of the trial court. From the beginning, we emphasize the exceptional nature of this case.

I.

On July 19, 1977, just before 9:00 p.m., the Beth Shalom Synagogue in Chattanooga was completely destroyed in an explosion. Explosives had been placed in the center of the building by way of a crawl space beneath it and had been detonated by an electrical extension cord that ran approximately two hundred feet from the synagogue to a nearby motel, where it had been plugged into an outside electrical socket to ignite the charge. During the investigation of the explosion, investigators noted the strong odor of exploded dynamite.

While all leads in the investigation had been pursued without success, Defendant did not become a suspect until after the Federal Bureau of Alcohol, Tobacco and Firearms (BATF) had closed the case in November, 1979. Almost five years later, the Chattanooga Police Department received information that Defendant had made statements regarding this synagogue bombing; the Department then contacted the BATF investigator previously assigned to the case. At the time, Defendant was incarcerated in the Federal Penitentiary at Marion, Illinois, which is a maximum security prison, serving four consecutive life sentences for murder. On February 29, 1984, at Marion, in the presence of a BATF agent and a Chattanooga Police Officer, Defendant, having waived his Miranda rights, voluntarily confessed to the bombing and possession of explosives for which he was convicted in this case. Defendant stated that he had intended for the explosion to be timed with an evening service when the synagogue would have had people in it. Fortunately, the service had ended early that evening and only the building was destroyed without loss of life or injuries. Defendant openly advocates racist political and religious beliefs, which apparently motivated this bombing, and has committed a number of crimes in conformity with these beliefs. 1 While incarcerated at Marion, Defendant was on one occasion attacked and stabbed fifteen or sixteen times by other inmates; he was then isolated from the population in a special housing unit.

1 Defendant has roamed the United States committing racially motivated murders in Utah, planting a bomb in the house of an Israeli lobbyist in Maryland, and robbing up to fifteen banks to support his activities. He claims to have bombed the Socialist Workers Party Headquarters in Atlanta as well. To some extent, he has been associated at various times with the American Nazi Party and the United Klans of America. Among others, he condemns communists, Jewish people, and interracial contact with blacks. He believes that a massive Jewish conspiracy grips the Federal Government. Proof at trial revealed that Defendant had obtained the explosives (dynamite and Tovex) by using an alias, James Clayton Vaughan, to purchase dynamite from a Chattanooga supply store in late June of 1977, and the Tovex from a Charleston, West Virginia, supplier in early July, 1977. Defendant's fingerprints on the BATF Explosives Transaction Records of these sales were compared to Defendant's known prints and identified by an expert. Additionally, a handwriting analysis was made of Defendant's signature of his alias on these forms; these signatures were determined to be written by Defendant.

Trial of this case was held from July 10 to 12, 1984. 2 Two prominent attorneys were appointed by the Court to represent the Defendant. The defense strategy was to show that Defendant had confessed to numerous crimes throughout the country to obtain a transfer from Marion, where he lived with restricted privileges because his life was threatened. The defense was highly unusual in that it informed the jury of Defendant's political and religious beliefs, and of his prior offenses as well as of crimes to which he had only confessed but for which he had not yet been tried or convicted. The tactical problem was to get the jury to believe that Defendant was lying when he confessed to the details of the bombing in Chattanooga as part of his ulterior motive to get out of Marion. This defense was stressed on voir dire and in the opening statements of Defendant's counsel. The prosecution strategy, also somewhat unusual, was to corroborate the confession carefully to insure the jury would find Defendant credible. Both sides recognized the unique positions in which their strategies placed them. In their opening statements, the State's attorneys noted that this was a different type of case in which the defense would ask the jury to believe that Defendant, a well-read individual, garnered the details of the bombing from various media accounts but that he didn't actually commit the crime. The State repeatedly referred to the Defendant's personality and radical beliefs. Further, during a subsequent jury-out conference regarding excision of portions of Defendant's confession, the trial court noted that "this is an unusual situation in that the defendant has put before the jury the fact that he has been convicted in these other cases and that he has been charged with crimes all around the country."

2 Although we denied Defendant's application for permission to appeal on the issue of whether the statute of limitations applied, we note that T.C.A. § 40-2-101(c) [now codified as § 40-2-101(d)] was tolled by the facts that Defendant was not usually and publicly resident in Tennessee during the four year period of the statute, as he only intermittently visited this State following the 1977 bombing -- and then often using one or more aliases, and, while he was in federal prisons since about 1980, no evidence pointed to him as the offender until he confessed in 1984. See T.C.A. § 40-2-103. See also, e.g., State v. Ansell, 36 Wash. App. 492, 675 P.2d 614 (1984); Grayer v. State, 234 Ark. 548, 353 S.W.2d 148 (1962); People v. Carman, 385 Ill. 23, 52 N.E.2d 197 (1943).

Over the course of the trial, the defense questioned the State's witnesses regarding the extent of media coverage and the details of the bombing (to demonstrate contradictions between Defendant's confession and the actual events). The defense attempted to show that the circumstantial evidence that pointed to Defendant was insufficient without the confession, which was to be discredited by revealing Defendant's ulterior motive and a superficial familiarity with the facts surrounding the bombing. The defense never actively contested the charge on illegal possession of explosives. Another aspect of the defense effort to discredit the confession was to show that the investigating officers led Defendant through many of the details of the bombing to establish corroboration for his confession.

At two points in the trial, Defendant chose to absent himself from the courtroom and, on the first occasion, he executed a written waiver of his right to attend his trial, authorizing his court-appointed counsel to defend him "as they see fit during [his] absence on the morning of July 11, 1984," but reserving his right to be present during any other stage of the trial "if [he should] wish to attend." The trial court instructed the jury that Defendant's absence was the result of the exercise of his constitutional right to be present or absent and that his absence could not "be considered for any purpose against him, nor [could] any inference be drawn from the fact."

The only witness called for the defense was John M. Cowart, the Lawrenceville, Georgia, police officer who had been assigned to investigate the ambush shooting of Larry Flynt, the publisher of Hustler magazine. In Defendant's confession to this bombing in February, 1984, he specifically denied being involved in the shooting of Larry Flynt. Officer Cowart had previously spoken to Defendant, who was at Marion, in December of 1983, regarding the Flynt case. At that time, Defendant expressed his desire to be removed from Marion and stated that he would cooperate with Officer Cowart if the officer would try to help "get [him] out of here." Defendant then confessed to the Larry Flynt shooting. In this statement to Officer Cowart, Defendant remarked, "I'll tell you I'm getting to a point now where I'd say anything just to get out of here for awhile." Officer Cowart was also told by Defendant that he had bombed the Chattanooga synagogue and the house of an Israeli lobbyist in the Washington, D.C., area. During the direct examination of Officer Cowart by Defendant's counsel, not only were some of the general conditions at Marion brought out, but defense counsel also specifically inquired about Defendant's stabbing incident, asking whether they had discussed an alleged attempt by Defendant's attackers to assault him sexually. At this point in the examination, Defendant reacted, denying that any such attempt had been made. The terse exchange between Defendant and his counsel is preserved on the record; defense counsel withdrew the question when Defendant adamantly denied it. The Defendant himself did not testify on his own behalf.

The following day, July 12, 1984, closing arguments were made, first by the State, which emphasized Defendant's political and religious beliefs as his motive and the corroboration of the confession, asking the jury to find it credible. Next, Defendant's counsel reminded the jury that Defendant was not on trial for his beliefs and that Defendant deserved a fair trial only for the crimes charged. The defense continued its strategy of attempting to show that Defendant confessed to the bombing as a part of his scheme to obtain a transfer from Marion. During a brief jury-out conference following the closing argument of one of Defendant's attorneys, the trial court stated to Defendant's counsel that it had "come to [his] attention that [Defendant] would like to make a closing statement to the jury." Over defense counsel's objections, the trial court ruled that Defendant had the right to make such a statement and that Defendant would be "representing himself before the jury . . . ." When the jury returned, the trial court gave the following instruction: "THE COURT: Members of the jury, Mr. Franklin has requested that he be allowed to represent himself as far as a closing statement to the jury. I caution you that his statement is a statement. It is not testimony. It is not sworn testimony. He is merely acting as his own attorney, which he has the right to do, in making a closing statement to you. It is not evidence."

Defendant then began his statement, remarking to the jury that it was unrehearsed and that he had "just recently decided to make this statement, within the hour." After a preliminary comment regarding the stabbing incident at Marion, Defendant stated to the jury, "I want to make your job a little easier here, as far as your deliberations go. You know, I admit to you I bombed the synagogue. You know, I did it. You know, and I'll tell it to anybody around. It was a synagogue of Satan." His argument continued, explaining why he planted the bomb and basing his position on his interpretation of the Bible, particularly quoting the Book of Revelations. He expounded on the Jewish conspiracy in which he believes, claiming that "they control the American Government. They control the news media. Control all different branches of the U.S. Government. The communist nations are all controlled by Jews, and all the western democracies are controlled by Jews." According to Defendant, the "Kahzar Jews" (as he refers to them) "are trying to destroy [the white race] through race mixing and through communism." Apparently, Defendant took this opportunity to speak not only to offer his theory of a Jewish conspiracy to justify his acts but to conclude with an appeal "for everybody to -- the only way that the white race can be saved now and get out of the trouble that they're in today, is for everybody to fast and get on their knees and praise the Lord. And I just hope that everybody here does that and accepts Jesus Christ as their personal savior."

Following the Defendant's closing statement, the other defense counsel, Jerry Summers, made his closing statement. Mr. Summers stressed that, given Defendant's beliefs, affording Defendant a fair trial was of paramount importance; he asked that the jury "put aside any feelings that [they] have in regard to whether [they] agreed or disagreed with him . . . and . . . make [the] decision on the facts of this case." He continued: "I don't think you're ever [going to] see any two lawyers in the position probably . . . where really we're asking you to not believe our client and the D.A.'s asking you to believe him." He argued that absent Defendant's confession, he would never have been a suspect in the bombing, and that, given his already substantial prison sentences, Defendant had nothing to lose in confessing; thus, understanding Defendant's ulterior motive for the confession was crucial to determining the credibility of the confession. Mr. Summers also noted that Defendant had used the trial as a forum to express his political and religious views, which was part of what Defendant wanted from his trial. After Mr. Summers finished but before the District Attorney gave his final argument, the Defendant left the courtroom for the second time at his own request.

In the State's final argument, the District Attorney stated that he had "thought [this] would be kind of a low-key trial, and [he] apologized for misinterpreting what actually became quite dramatic." Continuing, he argued that Defendant did indeed want to use the trial as an opportunity to publicize his political and religious beliefs. Nevertheless, after arguing the evidence, the District Attorney then emphasized that, despite Defendant's desire to get out of Marion, the State had not promised him anything at any time to obtain his confession. Remarking that Defendant was a credible person, he added that "the motive for being here in this trial is the same motive for the explosion of the synagogue . . . . He wants attention for his attitudes and his feelings, his warped, demented thinking about races of people."

At the hearing on the motion for a new trial, defense counsel argued that Defendant acted against their advice in making the statement to the jury and that the trial court had erred in permitting him to act as his own counsel. Counsel for Defendant stated that "in this situation . . . Mr. Franklin had never until at that point of the trial . . . requested that he be allowed to serve as his own counsel." The trial court, in denying the motion for a new trial, stressed the circumstances of this trial, stating that: "As you said, this is a novel situation. This is where a defendant insisted and the Court allowed him to be his own attorney. And the reason the contrary is not true is that the defendant has a constitutional right to be his own lawyer. So if you give him that right then it's not error then for -- I don't see how the Court can be in error if he allows him to be his own attorney. All I'm doing is allowing him to exercise his constitutional right to be his own lawyer. I cannot force an attorney upon him. I do have a right I guess to protect a defendant from himself. But when you observe the defendant and you realize the defendant is doing what he wants to do, that the defendant is sane, that the defendant is making a knowing decision on his part, then I have no right really to cut off his constitutional right. And having observed Mr. Franklin several days in the course of the trial, I realized that he was capable of representing himself. He was conducting the trial the way he wanted the trial to be conducted. And, of course, it's obvious that he did not agree with the line of defense that his attorneys were setting out. But I think he had that right to get up and argue the case the way he wanted to." The trial court went on to clarify that the only apparent disagreement between Defendant and his counsel had involved the question to Officer Cowart suggesting a sexual assault on Defendant while he was at Marion. The court then articulated several of his observations regarding Defendant's conduct at trial; Defendant's independent decisions to absent himself periodically from the courtroom; his request before trial that his manacles be removed; and his reading the Bible throughout trial without losing track of the proceedings.

From the above summary of this trial, the record as a whole demonstrates that this case was tried in an atypical manner. The trial strategies of both the defense and prosecution, Defendant's own conduct throughout trial, and the very nature of and motivation for the crimes involved combined to create a delicate trial atmosphere.

II.

In its opinion, the Court of Criminal Appeals, relying on Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), State v. Northington, 667 S.W.2d 57 (Tenn. 1984), and Rule 44(a), T.R.Crim.P., found that the trial court had not ascertained the validity of Defendant's waiver of his right to counsel. Citing State v. Burkhart, 541 S.W.2d 365 (Tenn. 1976), the Court of Criminal Appeals also observed that while a defendant has an alternative right to counsel or to elect self-representation, he has no right to both at once, unless the interests of justice require it. The Court concluded that this was not a case justifying the trial court's decision to allow Defendant to make such a statement to the jury. That Court found that the trial court had abused its discretion in this case and that the trial court's observations of Defendant's conduct during the proceedings would not support its decision in this situation.

A.

One of the most fundamental responsibilities of a trial court in a criminal case is to assure that a fair trial is conducted. See, e.g., State v. Burkhart, supra, at 371. Generally, the trial court, which has presided over the proceedings, is in the best position to make determinations regarding how to achieve this primary purpose, and absent some abuse of the trial court's discretion in marshalling the trial, an appellate court should not redetermine in retrospect and on a cold record how the case should have been better tried. Cf. State v. Northington, supra, at 62 ("'The existence of a constitutional pretrial waiver cannot be made to turn on an appellate court's view as to whether, in retrospect, the defendant used relatively good judgment in representing himself at trial.'") (citation omitted). Although the Court of Criminal Appeals and the trial court both analyzed the issue of this case in terms of Defendant's right to represent himself, we are of the opinion that the controlling issue is whether the trial court abused its discretion in the circumstances of this case.

Contrary to the Court of Criminal Appeals, under Tennessee law, the question of waiver does not necessarily arise when a defendant is in fact represented by counsel at every stage of his prosecution. "The whole thrust of Faretta is that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta does not touch upon the basic issue involved in this controversy and, therefore, affords no authority for the claimed right of a criminal defendant to have the benefit of counsel and simultaneously to represent himself." State v. Burkhart, supra, at 368 (emphasis in original). Defendant was represented throughout these proceedings by two competent, highly qualified and experienced attorneys. At no time did he stand alone against the State's arsenal of attorneys unassisted by counsel for his defense. Neither Faretta v. California, supra, nor State v. Northington, supra, apply to a case in which a defendant is represented continuously by counsel. See State v. Burkhart, supra. See also, e.g., People v. Barnes, 130 Ill. App. 3d 1026, 86 Ill. Dec. 268, 475 N.E.2d 265, 267 (1985); People v. Rodriguez, 98 A.D.2d 961, 470 N.Y.S. 2d 64, 66-67 (1983); Phillips v. State, 604 S.W.2d 904, 908 (Tex. Crim. App. 1979).

Accordingly, the determinative issue is whether the trial court abused its discretion in permitting what is known as "hybrid representation" (that is, simultaneous representation by counsel and pro se). Ordinarily, a defendant must elect to act pro se or to accept representation by counsel. See McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); State v. Northington, supra; State v. Melson, 638 S.W.2d 342 (Tenn. 1982); State v. Burkhart, supra. Whether to allow hybrid representation is committed to the discretion of the trial court. "'Whether the court allows defendant to make a closing statement or, indeed, whether he shall be allowed to intermittently use counsel during the trial while he conducts his own defense is within the sound discretion of the trial court.'" State v. Burkhart, supra, at 370 (quoting State v. Whitlow, 13 Ore. App. 607, 510 P.2d 1354 (1973)). See also McKaskle v. Wiggins, supra, 104 S. Ct. at 953; State v. Melson, supra, at 359; People v. Rodriguez, supra, 470 N.Y.S. 2d at 66-67; People v. Hazen, 94 A.D.2d 905, 463 N.Y.S.2d 657, 660 (1983). Accord Robertson v. State, 701 S.W.2d 665, 670 (Tex. App. 1985); Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir. 1976).

B.

This case is decided under Article I, § 9, of the Constitution of Tennessee, which provides in pertinent part "that in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel . . . ." Prior to 1976, Tennessee cases construing this provision would have permitted the trial court's action in this case because when a defendant demanded "the right to be heard by himself," the court was required "at once [to] instruct him that he may make an argument or an explanation of the circumstances proved against him, but that he can state no facts not already shown to the jury." Wilson v. State, 50 Tenn. 232, 242 (1871). See also Kizer v. State, 80 Tenn. 564 (1883); Hopkins v. State, 78 Tenn. 204 (1882). Burkhart, supra, however, reconsidered the construction of this Constitutional provision and concluded that these cases had been undermined by more recent developments in Constitutional law, finding that "the right to dual or hybrid representation is not mandatory, but permissive, and rests within the sound discretion of the trial court. The rule is based upon a compelling policy to retain in the trial judge the power to maintain an orderly administration of justice at the trial level." 541 S.W.2d at 370. This provision of the Tennessee Constitution, therefore, does not guarantee as of right a defendant's participation with his counsel in the conduct of his defense in the courtroom.

While Burkhart pretermits the issue of waiver in cases of hybrid representation, placing in the trial court the discretion to permit such participation of a defendant, this discretion must be exercised sparingly and only in exceptional cases: "It is the foremost responsibility of the trial judge in a criminal action to insure a fair, just and orderly trial. To this end he must have a reasonable amount of judicial discretion. If the interests of justice so require, the trial judge, in exceptional circumstances, may permit the defendant to participate in the trial, to include the cross-examination of witnesses and the argument of his own defense. But this discretion should be exercised sparingly and with caution and only after a judicial determination that the defendant (1) is not seeking to disrupt orderly trial procedure and (2) that the defendant has the intelligence, ability and general competence to participate in his own defense. Unsworn statements will not be permitted under any circumstances. We caution, however, that when a defendant argues in his own behalf he is limited to fair comment on the evidence and may not use argument as a guise for an unsworn statement." State v. Burkhart, supra, at 371-372 (emphasis added). The record in Burkhart did not support the trial court's decision to permit defendant to participate by hybrid representation. Id., at 372. In State v. Melson, supra, this Court again emphasized that the trial court's discretion in such cases should be exercised only in exceptional circumstances. 638 S.W.2d at 359. What constitutes exceptional circumstances cannot be defined; they must be determined on a case by case basis. Id. The trial court's decision must be supported by the record. "The mere facts that a defendant is not seeking to disrupt the trial proceedings and that he may be intelligent do not require a trial judge to allow a defendant represented by counsel to participate. These are only threshold considerations . . . ." Id.

In Bontempo v. Fenton, 692 F.2d 954 (3d Cir. 1982), cert. denied, 460 U.S. 1055, 103 S. Ct. 1506, 75 L. Ed. 2d 935 (1983), a state trial court allowed the defendant at his trial to deliver a summation to the jury along with the closing argument of his defense counsel. In his Petition for a Writ of Habeas Corpus in Federal Court, defendant contended that the trial court had deprived him of effective assistance of counsel when he was allowed to make such a statement. The Third Circuit Court of Appeals noted that defendant "was, in fact, represented before, during, and after his statement by an experienced defense attorney . . . . It was defendant's protest in the jury's presence that he was being denied a fair trial which precipitated the trial judge's unusual response." Id., at 960. The record of the trial in Bontempo made it clear that defendant, although somewhat encouraged by the trial court to make the statement, made the decision to do so only after consulting with his counsel outside the presence of the judge and jury. The Third Circuit stated that "this is not the case of an unrepresented defendant who is called upon to make an important decision without the benefit of expert advice." Id., at 961. The dissent in Bontempo, however, considered the defendant's decision to be a partial waiver of his right to counsel, requiring the same inquiry as in a complete, pretrial waiver of counsel.

The First Circuit Court of Appeals, although analyzing a hybrid representation case as one involving a partial waiver of counsel, found that in such cases "the absence of explicit bench warnings or a colloquy on the record" regarding the validity of the partial waiver did not compel the conclusion that a partial waiver was ineffective. Maynard v. Meachum, supra, at 277. That court found that the record in hybrid representation cases need only show that the defendant's conduct affirmatively demonstrates that he knew what he was doing under all the circumstances of the case. Id., at 277-278.

Furthermore, in People v. Hazen, supra, the trial court exercised its discretion to permit a defendant to act as co-counsel with his attorney. The concurring opinion, written by Justice Mahoney, reasoned that: "Rather than proceeding with his defense at trial alone, defendant was allowed to join forces with his lawyer in the management and presentation of his defense. As such, defendant received all of the benefits of representation by counsel. Simply stated, he did not need to be warned of the risks associated with self-representation because he was not, in fact, proceeding in his defense at trial without counsel." 463 N.Y.S.2d at 661 (citations omitted). The reasoning of this concurrence was subsequently and explicitly adopted in People v. Rodriguez, supra: "While a defendant who is represented by counsel in a criminal case has no absolute right to participate, the court may, in the exercise of its discretion, permit participation by the defendant to the extent it finds it appropriate . . . . Under the particular circumstances of this case, we find no abuse of discretion in the permission to participate granted to defendant . . . . Inasmuch as defendant did not waive his constitutional right to representation and did not proceed in his defense without the assistance of counsel, an inquiry for the purpose of ensuring that the defendant's waiver was competent, intelligent and voluntary . . . was not called for . . . ." 470 N.Y.S. 2d at 66-67 (citations omitted).

In exercising its discretion in hybrid representation cases, not only must the trial court make the threshold determinations (1) that defendant is not seeking to disrupt the trial, and (2) that the defendant has the intelligence, ability and general competence to participate in his own defense, but the trial court must also ensure (3) that the circumstances are so exceptional as to justify the defendant's request, which circumstances must be made to appear on the record, (4) that defendant has the opportunity to confer with counsel out of the presence of the jury prior to his participation, (5) that, out of the presence of the jury, the defendant is instructed that he may not state facts not in evidence, and (6) that the defendant and the jury are instructed that the defendant is acting as his own counsel and that the defendant is not giving any evidence or testimony. Even where all these factors could be present, the trial court may nevertheless decline to permit hybrid representation. We believe that only rarely will circumstances justify the exercise of this discretion, but a defendant has no absolute right to hybrid representation or to make an unsworn statement before the jury. See State v. Melson, supra; State v. Burkhart, supra. See also Robertson v. State, supra, at 670. The question of waiver does not necessarily arise in such a case, but a warning by the trial court concerning the risks of hybrid representation may be appropriate in some cases. We emphasize the case by case nature of hybrid representation situations. "It is entirely a matter of grace for a defendant to represent himself and have counsel, and such privilege should be granted by the trial court only in exceptional circumstances." State v. Melson, supra, at 359. We agree with the dissent in Bontempo v. Fenton, supra, to this extent: "It is no argument to say that the court merely honored the [defendant's] request. The court exists to protect the constitutional rights of those who appear before it." 692 F.2d at 968 (citation omitted).

III.

In this case, having summarized the record of the trial heretofore, we are of the opinion that the circumstances justified the exercise of the trial court's discretion, and we will not second-guess the decision of the trial court on this record; however, we reiterate that trial courts cannot freely exercise such discretion absent circumstances justifying such an unusual action as permitting hybrid counsel. Contrary to the trial court's opinion below, he was not required to allow Defendant to participate as of right in his defense at trial. "Faretta does not require a trial judge to permit 'hybrid representation' of the type [defendant] was actually allowed." McKaskle v. Wiggins, supra, 104 S. Ct. at 953. See also State v. Melson, supra, at 359.

Not only are the exceptional circumstances of this case evident on the record as a whole, but the trial court wisely preserved a record of its reasons for permitting Defendant to make his statement as well. While Defendant did use his trial as a forum for his political and religious beliefs, he never sought to disrupt the trial and was generally well-mannered throughout the proceedings. At no time was the trial court required to recall order to the court due to Defendant's behavior. In denying the Defendant's motion for a new trial, the trial court recorded the observations that led him to the conclusion that Defendant had the intelligence, ability, and general competence to participate in his defense. Although a defendant's actual pro se trial performance itself is not relevant to determining the competency of a waiver of counsel, State v. Northington, supra, at 61, his personal conduct during trial is relevant to the judge's determination that a defendant, in Judge Meyer's words, "is making a knowing decision on his part" to participate in his defense.

Before Defendant gave his statement, he conferred with his counsel out of the presence of the jury. He did not take the advice of his attorneys that he should not make a closing statement, but that fact alone cannot invalidate the exercise of the trial court's discretion. As the Supreme Court of the United States observed in McKaskle v. Wiggins, supra, "if [defendant's] closing statement to the jury had to compete with one made by counsel, it was only because [defendant] agreed in advance to that arrangement." 104 S. Ct. at 955. Cf. Rodgers v. State, 610 S.W.2d 25, 28 (Mo. App. 1980) ("[Defendant] was not deprived of an opportunity to have the advice of counsel on what disposition should have been attempted in his best interest. He merely refused to accept this advice."). The trial court did not encourage Defendant to make the statement. Defendant spontaneously requested that he be allowed to do so. A relevant factor in the trial court's decision would in some cases be whether any disagreement over trial strategy had arisen between a defendant and counsel, but this factor will not necessarily weigh in favor of or against the exercise of the court's discretion, since the decision must ultimately depend on the totality of the circumstances in the trial. Moreover, the defense lawyer is to assist a defendant in making his defense and to represent him before the court. The right to a defense is essentially the defendant's, which right is protected by the right to have counsel for the defense. Here, the record shows that Defendant disagreed with his counsel on at least one occasion, but Defendant's conduct throughout trial made it apparent, as the trial court itself noted, that he "was conducting the trial the way he wanted the trial to be conducted." No person can be compelled to take the advice of his attorney. Cf. Faretta v. California, supra, 422 U.S. at 834, 95 S. Ct. at 2541 ("Although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.'") (citations omitted); Holloway v. State, 691 S.W.2d 608, 615 (Tex. Crim. App. 1984) (En banc) (right to counsel belongs to accused).

In addition, during a jury-out conference, the trial court stated on the record and in the Defendant's presence that his statement was not testimony, that he was representing himself, and that his remarks to the jury would be considered the same as the arguments of his counsel. We would have preferred that the trial court had been more explicit in instructing the Defendant that he could not state facts not already in evidence, but this was not fatal to this case. When the jury returned, the trial court properly instructed the jury in the Defendant's presence that his statement was not sworn testimony or to be considered as evidence and was merely the statement of the Defendant acting as his own attorney.

Most of the cases we have found in which this issue has arisen involved the unsworn statement of a defendant who did not take the stand but who used the opportunity to make a statement to state facts outside the record. Here, Defendant never made a statement of facts not already in evidence; his statement was a sermon and a political polemic, but it was certainly not evidentiary. Of all that he said the jury was already informed. Defendant's statement, although containing his admission that he had committed the crime, did not go outside the record because his confession to the crime had already been admitted. The State was not denied the opportunity to cross-examine Defendant on any testimony or evidence not previously revealed. Whether the jury believed Defendant's confession was a matter for them to resolve. Moreover, his admission in court could not have undermined the defense strategy since that strategy was that Defendant willingly confessed to this and a number of other crimes to obtain a transfer from Marion. When one of the defense counsel gave his closing argument following Defendant's statement, this strategy was continued uninterrupted, stressing Defendant's ulterior motive and attempting to discredit the confession. The remainder of Defendant's statement was not testimonial in any sense; it was more in the nature of a religious sermon and an appeal to the members of the jury to understand his perception of the urgency of resisting the Jewish conspiracy in which he believes. This may not be desirable, but in a trial in which the Defendant's beliefs were the motive for the crimes for which he was being tried, it was not fatal to his conviction. Finally, we note that the District Attorney in his closing argument did not improperly comment on or otherwise take advantage of the fact that Defendant had argued in his own behalf.

We cannot say that, in the circumstances of this trial and given the evidence against Defendant, the trial court abused its discretion in allowing the Defendant to make a statement to the jury. Further, even if it be considered error, it did not affect the outcome of the jury's deliberations and was, at worst, harmless error. Rule 36, T.R.A.P.; Rule 52, T.R.Crim.P. Cf. Dukes v. State, 578 S.W.2d 659, 665 (Tenn. Crim. App. 1978) ("Obviously counsel did everything possible to prevent the defendants from jeopardizing their own defense . . . . Although counsel now says they could not predict or plan a proper defense, no evidence is offered to show how [defendants were] prejudiced . . . . If the defense was prejudiced in any manner by the conduct of defendants or their choice of defense, that was a matter of their own choosing about which they now have no right to complain."); State ex rel. Lea v. Brown, 166 Tenn. 669, 692-693, 64 S.W.2d 841, 848 (1933) ("'[Appellant] participated as an actor in procuring the order which he now seeks to set aside, and took his chance . . . . To that end there was not only acquiescence on his part, but intelligent and efficient dealing with the matter and consent to the order. By this consent he must be deemed to have made his election and should be held to it.'") (citations omitted).

Accordingly, although the trial court was incorrect that Defendant had a right to make the statement to the jury in this case, that court did not err in the circumstances of the trial in exercising his discretion to allow Defendant to make a statement to the jury. The judgment of the Court of Criminal Appeals is, therefore, reversed and that of the trial court is reinstated. The costs are taxed to the Defendant. Concur: Brock, C.J., Fones, Harbison and Cooper, JJ.

State v. Franklin, 735 P.2d 34 (Utah 1987).

PROCEDURAL POSTURE: Defendant appealed a judgment from the trial court (Utah), which convicted him on two counts of first degree murder under Utah Code Ann. § 76-5-202 (1986).

OVERVIEW: Defendant killed two black men who were jogging with two white women. Defendant was convicted in federal court of violating the civil rights of the victims under 18 U.S.C.S. § 245(b)(2)(b), and then the state brought two counts of first degree murder under § 76-5-202. During trial, the detective testified that defendant had fled custody in Kentucky where he was a suspect in two robberies. The trial court convicted defendant, and defendant appealed on the ground that the state's charges violated the prohibitions against double jeopardy and that it was error to have admitted the evidence concerning his flight from custody. The court affirmed on appeal. The court determined that the double jeopardy clause of both the Utah and the United States Constitutions was violated because § 245(b)(2)(b) and § 76-5-202 each required proof of different elements, and therefore, they were separate legal offenses. The court ruled that defendant's convictions were also separate offenses because they were imposed under the laws of different sovereigns. The court also held it was not error to have admitted the evidence concerning defendant's flight of custody because evidence of flight was probative.

OUTCOME: The court affirmed the judgment of the trial court that convicted defendant on two counts of first degree murder brought by plaintiff state. Defendant appeals from a conviction of two counts of first degree murder under U.C.A., 1953, § 76-5-202 (Supp. 1986). We affirm.

On August 20, 1980, defendant, an avowed racist, shot and killed two black men who were jogging in Liberty Park with two white women. On March 4, 1981, a jury in the United States District Court for the District of Utah convicted defendant of violating the civil rights of his victims in contravention of 18 U.S.C.A. § 245(b)(2)(B) (1969). Defendant was sentenced to two life sentences. After the federal prosecution, defendant was charged and tried by the State of Utah for two counts of first degree murder. During that trial, the prosecution called Detective Jesse Baker as a witness. Detective Baker testified that he had interviewed defendant in Florence, Kentucky, after defendant had been arrested there on suspicion of possessing a stolen vehicle. Detective Baker said that defendant appeared unperturbedby questions concerning the stolen vehicle charge, but became emotional when he was questioned about the Utah murders. During a break in the questioning, defendant escaped through a window. At trial, defendant's counsel cross-examined Detective Baker at length and brought up two robberies in which defendant was a suspect at the time of the Kentucky arrest. Defense counsel chose to discuss the robberies in order to offer a motive, other than guilt in the Salt Lake murders, for defendant's escape. The jury in Utah district court convicted defendant, but was unable to reach a unanimous verdict for death. The trial judge therefore sentenced defendant to two consecutive life terms to be served at the end of the federal sentences.

Defendant appeals on two grounds: he claims first that his trial in state court after his conviction in federal court violated the prohibitions against double jeopardy contained in the United States Constitution and in the Utah Constitution and Code; he also asserts that the Utah district court erred in admitting evidence concerning his flight from custody in Florence, Kentucky.

Double Jeopardy

The fifth amendment of the United States Constitution provides that no person "shall . . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . ." The Utah Constitution also prohibits double jeopardy. It states: "Nor shall any person be twice put in jeopardy for the same offense." Utah Const. art. I, § 12. U.C.A., 1953, § 77-1-6(2)(a) provides similar protection. It states: "No person shall be put twice in jeopardy for the same offense." Common to all these provisions is the term "same offense." Defendant argues that the murders and the federal civil rights violations should be considered the same offense for purposes of double jeopardy. He contends that because the killings and the civil rights violations arose from the same event (his shooting of two men in Liberty Park on August 20, 1980), the double jeopardy clause bars his prosecution for the separate violations of law.

The prohibition against double jeopardy protects defendant against three things: prosecution for the same offense after acquittal, prosecution for the same offense after conviction, and the infliction of multiple punishments for the same offense. State v. James, 631 P.2d 854, 856 (Utah 1981) (citing North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969)). Neither the state nor the federal double jeopardy clause is violated when a defendant is tried for different offenses arising out of the same incident as long as each offense requires proof of a fact that the other does not and is therefore a separate legal offense. Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932); State v. Sosa, 598 P.2d 342, 346 (Utah 1979); see also State v. Thatcher, 108 Utah 63, 71-73, 157 P.2d 258, 261-62 (1945). For example, writing a bad check and forgery are not the same offense even if both charges are premised on the same incident, because they are not defined by the same legal elements. State v. Harris, 30 Utah 2d 354, 355-56, 517 P.2d 1313, 1314 (1974).

Each of the offenses of which defendant has been convicted requires proof of facts that the other does not. In order to establish a violation of 18 U.S.C.A. § 245(b)(2)(B) (1969), a federal prosecutor must prove that a defendant, by threat or force, willfully injured, intimidated, or interfered with another person because of the other's race, color, or national origin and because he was enjoying a benefit, service, privilege, program, or activity provided or administrated by a state or a political subdivision of a state. In this case, the federal prosecutor proved that defendant had prevented his victims from using a city park because of their race. The state prosecutor proved that defendant violated U.C.A., 1953, § 76-5-202(1)(b) and (c) (1978) by intentionally or knowingly killing both victims at the same time or in a manner that endangered the lives of persons other than himself or his victims. Thus, the federal and state statutes under which defendant was convicted require proof of different elements and do not define the same offense. We note also that the two statutes have different purposes: the federal statute is intended to protect the rights of all citizens to enjoy the benefits of citizenship regardless of race; the Utah first degree murder statute is intended to punish those who intentionally or knowingly murder another person under certain enumerated aggravating circumstances. See Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979) (interpreting an Arkansas statute that codifies the Blockburger definition but adds a requirement that the two statutes must be intended to prevent substantially different types of harm); see also Commonwealth v. Mascaro, 260 Pa. Super. 420, 394 A.2d 998, 1000 (1978) (interpreting a Pennsylvania statute using the same language as the Arkansas statute).

Defendant's convictions are also separate offenses because they were imposed under the laws of different sovereigns. The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 67 L. Ed. 314 (1922). As the Court explained in Moore v. Illinois, 55 U.S. (14 How.) 13, 19, 14 L. Ed. 306 (1852), "an offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable." Id. at 20. Heath v. Alabama, 474 U.S. 82, 106 S. Ct. 433, 437, 88 L. Ed. 2d 387 (1985). See also United States v. Wheeler, 435 U.S. 313, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978); Bartkus v. Illinois, 359 U.S. 121, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959); Abbate v. United States, 359 U.S. 187, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959); Screws v. United States, 325 U.S. 91, 114-18, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945) (Rutledge, J., concurring); Westfall v. United States, 274 U.S. 256, 258, 71 L. Ed. 1036, 47 S. Ct. 629 (1927).

Defendant asks us to abandon the dual sovereignty doctrine and hold that the State of Utah may not try him because he has already been tried by the federal government. Defendant offers two reasons why we should so hold: he argues that U.C.A., 1953, § 76-1-404 (1978) compels that result and that other state courts have properly chosen to curtail the right of their states to try defendants who have already been tried by another sovereign. We are not persuaded by either argument.

U.C.A., 1953, § 76-1-404 provides: If a defendant's conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of another jurisdiction, federal or state, the prosecution in the other jurisdiction is a bar to a subsequent prosecution in this state if (1) the former prosecution resulted in an acquittal, conviction, or termination of prosecution, as those terms are defined in section 76-1-403, and (2) the subsequent prosecution is for the same offense or offenses. (Emphasis added.) As the discussion above indicates, the federal and state crimes do not constitute the same offense. Defendant cites cases from other jurisdictions in which courts have held that their statutes barred subsequent prosecutions. Those cases are all distinguishable because the statutory language they construe is broader than that contained in section 76-1-404, which uses the term "offense." When the legislature uses a word with a well-established legal meaning, we assume that the legislature is aware of that meaning and has used the word in its proper sense. Section 76-1-403, immediately preceding the section defendant relies on here, forbids state prosecution for "offenses" arising out of "the same criminal episode." This language, which differentiates between "offenses" in the strict Blockburger-Sosa meaning of that term and "criminal episodes," is indicative of the legislature's awareness of double jeopardy terminology and its intent to use that terminology precisely. It is therefore appropriate to view section 76-1-404 as a legislative codification of traditional double jeopardy interpretation. By contrast, the statutes from other jurisdictions that defendant insists are similar to section 76-1-404 do not use the term "offense," apparently thereby deliberately intending to expand the protection against double jeopardy to bar multiple trials of a defendant for the same criminal acts or incident. We note that courts interpreting these statutes have sometimes resorted to applying "same offense" analysis despite the language of the statutes. See People v. Candelaria, 139 Cal. App. 2d 432, 294 P.2d 120 (1956) (interpreting a statute forbidding subsequent prosecution of a defendant who has already been tried for the same "act or omission"); Riddle v. State, 373 P.2d 832, 835 (Okla. Crim. App. 1962) (interpreting an Oklahoma statute using a "same offense" analysis to interpret the phrase "act or omission"); State v. Lo Cicero, 14 N.Y.2d 374, 200 N.E.2d 622, 624, 251 N.Y.S.2d 953 (1964) (interpreting a statute using the phrase "act or omission" and applying "same offense" analysis); State v. West, 260 N.W.2d 215 (S.D. 1977) (interpreting a statute prohibiting subsequent prosecutions founded on the same act or omission and although purporting to apply a same evidence test, using "same offense" analysis); State v. Zimmerman, 175 Mont. 179, 573 P.2d 174, 178 (1977) (interpreting a statute barring subsequent prosecutions when the second offense arose out of "the same transaction" that gave rise to the first offense for which the defendant was prosecuted); Wilson v. State, 270 Ind. 67, 383 N.E.2d 304 (1978) (interpreting a statute forbidding subsequent prosecution when the defendant has already been convicted or acquitted of "an act charged as a public offense" in another jurisdiction).

Defendant urges us to follow the lead of some state courts that have interpreted their state constitutions as barring prosecutions by the state after federal prosecutions. The Michigan and Pennsylvania courts have, for example, developed balancing tests to determine whether their state constitutions forbid subsequent prosecutions. See People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). These courts allow prosecutions by the state only when the state's interests have not been "sufficiently protected," Commonwealth v. Mills, 286 A.2d at 642, or, to use the Michigan Supreme Court's phrasing, were not "vindicated fully." People v. Cooper, 247 N.W.2d at 871. In our view, these decisions place state judges in the dual role of a state prosecutor evaluating the interests of the state and appellate courts reviewing the adequacy of the proceedings in the federal tribunal and presumably the efficacy of the federal penal and parole systems. While we do not think our constitution necessarily must be interpreted as granting exactly the same protections as the federal constitution, we also do not believe the balancing test approach is mandated by the Utah Constitution, nor are we convinced it would provide the salutary effects anticipated. Rather, it appears likely to lead to uncertainty on the part of prosecutors and defendants, which might well result in an increase in litigation and appeals respecting the dual-sovereignty principle. We are troubled also by the transitory nature of the protection offered the individual under this balancing test approach: it exists only when the interest of the state is perceived as weak, disappearing when the state's interest is perceived as great.

The courts of New Hampshire and Montana have been more sweeping in surrendering their states' sovereignty. They have held that a prior federal prosecution is a complete bar to a subsequent prosecution by the state. See State v. Hogg, 118 N.H. 262, 385 A.2d 844 (1978) (holding that the double jeopardy clause of the New Hampshire Constitution bars New Hampshire from retrying a defendant who has been acquitted in a federal prosecution; the court did not extend its ruling to cases, such as that at bar, in which the federal prosecution results in a conviction); State v. LeCoure, 158 Mont. 340, 491 P.2d 1228 (1971).

We do not agree with the above-described approach because it relinquishes unnecessarily the power of the state to try and punish those who break its laws. Under the rule urged by defendant, the State of Utah would be foreclosed from legitimate prosecutions by the errors, omissions, or inadequacies of federal prosecutions and would be unable to try even a defendant who had received a federal pardon or whose conviction was reversed by a federal appellate court because of an error in the federal trial. See, e.g., State v. LeCoure, 158 Mont. 340, 491 P.2d 1228 (1971) (defendant acquitted of federal charges based on assault of F.B.I. agent because federal prosecutor did not prove agent was acting within his official capacity at time of assault and double jeopardy barred state law assault charges). We note also that the approach urged by defendant, under which the federal prosecution would be treated as if it were a Utah proceeding, would allow the federal government to destroy Utah's right to try defendant merely by bringing defendant to trial for some minor lesser included offense. See Brown v. Ohio, 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). Defendant asks us to contrast the benefits to the state from the dual-sovereignty doctrine, which he deems slight, with the unfairness to the individual that may result from two trials. The protection against multiple trials perceived by defendant is largely illusory. Were we to hold that Utah could not try individuals because they had been previously tried in a federal court, we still could not prevent the federal government from trying individuals after they had been tried by Utah; we would thus be surrendering state sovereignty in exchange for a more theoretical than real gain in individual rights.

Admission of Evidence Concerning Flight

Defendant complains of the trial court's decision to admit evidence concerning his flight from custody in Florence, Kentucky. At trial, the defense made a motion in limine to exclude the testimony of Detective Baker and another Kentucky police officer. After receiving a proffer of the evidence, the trial court rejected defendant's motion. Defendant claims that it was error to admit the evidence of flight because it was not probative and because it "required" him to elicit information on cross-examination concerning robberies in which defendant was a suspect. That information was apparently elicited in order to offer a reason for defendant's flight other than guilt in the Salt Lake murders. The trial court gave a cautionary instruction to the jurors warning them not to give too much weight to the mere fact of flight without carefully considering other motives that may have influenced defendant.

We have previously ruled that evidence of flight is probative. See State v. Simpson, 120 Utah 596, 236 P.2d 1077 (1951); State v. Marasco, 81 Utah 325, 17 P.2d 919 (1933). Defendant insists, however, that we have ruled that flight evidence is inadmissible when the accused is in custody under two or more distinct charges. He relies on State v. Crawford, 59 Utah 39, 201 P. 1030 (1921), for that proposition. In Crawford, we reversed the defendant's conviction because there was insufficient evidence to sustain the jury's verdict. In the course of that opinion, we were critical of allowing evidence of flight when it was the only evidence connecting a defendant with the commission of the offense. 59 Utah at 45, 201 P. at 1033. That decision should not be read as holding that such evidence is never admissible. In our decision in State v. Bales, 675 P.2d 573 (Utah 1983), we reviewed the differing attitudes of courts toward jury instructions concerning flight and determined that when there is ample evidence to justify a flight instruction, it is not error to give one so long as it instructs the jury that there might be reasons for flight that are fully consistent with innocence of the crime charged and that even if consciousness of guilt is inferred from flight, it does not necessarily reflect actual guilt. Bales, 675 P.2d at 575. Therefore, defendant's claim that it was error to admit evidence concerning his flight from custody in Florence must be rejected.

We note that our holding on this issue is in harmony with those of the Supreme Courts of Arizona, Kansas, and Washington. See State v. Celaya, 135 Ariz. 248, 660 P.2d 849, 857-58 (1983); State v. Walker, 226 Kan. 20, 595 P.2d 1098 (1979); State v. Piche, 71 Wash. 2d 583, 430 P.2d 522, 524 (1967), cert. denied, 390 U.S. 912, 19 L. Ed. 2d 882, 88 S. Ct. 838 (1968). As to defendant's contention that he was forced to present evidence of other crimes to supply an alternative motive for his escape, we note that defendant's decision was merely a tactical choice and is not a proper basis for an assignment of error.

The judgment of conviction is affirmed. WE CONCUR: Gordon R. Hall, Chief Justice I. Daniel Stewart, Associate Chief Justice Richard C. Howe, Justice Michael D. Zimmerman, Justice.