The Joplin Globe, Joplin, MO

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December 10, 2012

Constitutionality of teen’s murder charge questioned

JOPLIN, Mo. — The attorney for the accused shooter in the home-invasion slaying of Jacob Wages is questioning the constitutionality of his 17-year-old client being charged with first-degree murder.

William Fleischaker has filed motions seeking dismissal of a charge of first-degree murder that his client, Daniel D. Hartman, is facing.

The U.S. Supreme Court held in a 2005 case that the Eighth Amendment prohibits capital punishment of juveniles convicted of murder. In the case Miller v. Alabama earlier this year, the nation’s high court further held that the same amendment prohibits any sentencing scheme that mandates life in prison without any possibility of parole for juvenile offenders.

In both cases, the Supreme Court defined a juvenile as anyone under the age of 18.

With the arrest Saturday in Tulsa, Okla., of 17-year-old fugitive Marcus D. Stephens, also known as Marcus Hill, five suspects are in custody in the case. Hartman is the lone defendant charged with first-degree murder because he is believed to have been the one who shot Wages, 23, in the early morning hours of July 6 inside the victim’s home at 1912 S. Pearl Ave. in Joplin. The suspects are believed to have been looking for drugs and cash.

Hartman initially was charged with first-degree murder, armed criminal action and burglary. The first count was amended Sept. 27 to include an alternative charge of second-degree murder because of the potential conflict with Supreme Court rulings. He was bound over for trial on those charges at a preliminary hearing Nov. 7.

Missouri’s statute governing first-degree murder provides for just two possible penalties, death or life without parole. Fleischaker is arguing that since the statute does not contain a constitutionally valid punishment for a juvenile defendant, the court has no authority to proceed with a case charging his client with first-degree murder.

The Jasper County prosecutor’s office has argued in responding motions that the Supreme Court has not held that a sentence of life in prison without parole is unconstitutional for juveniles. What it found unconstitutional in Miller v. Alabama was sentencing schemes that “fail to offer an alternative to life without parole.”

Prosecutors Norman Rouse and Kimberly Fisher point out that by providing the alternative charge of second-degree murder, a lesser range of punishment — from 10 to 30 years or up to life with a chance of parole — is in play. They further argue that the appropriate remedy may be severance of the provision of the statute that is deemed unconstitutional rather than dismissal of the first-degree murder charge.

The prosecutors also maintain that the defense motion is premature because the Missouri Legislature is expected to address the ruling in Miller v. Alabama with a revision of the state’s first-degree murder statute in the coming year. They suggest that the judge wait until the Legislature acts, or at least until the case gets closer to trial before addressing the issue.

Circuit Judge Gayle Crane took the matter under advisement at a hearing on Monday.

In the meantime, the surrender of Marcus Stephens over the weekend could lead to a second adult-certification hearing in the case since he was 16 when the crime was committed. Co-defendant Elijah Taylor also was 16 when the home invasion took place. He is 17 now and was certified to stand trial as an adult at a hearing Aug. 30.

Taylor, his brother Johnathan J. Taylor, 19, of Joplin, and Cody E. Stephens, 20, of Parsons, Kan., are charged with second-degree murder and burglary.

Elijah Taylor testified at Hartman’s preliminary hearing that he went to Wages’ home the night in question with Hartman, Cody Stephens, Marcus Stephens and another man, who has not been charged in the case. Elijah Taylor said the other man remained in their car parked at a church across the street from the victim’s home and did not go inside with them.

Elijah Taylor testified that Hartman shot Wages as they broke into the house through the front door and the victim started to get out of his bed.

His testimony did not implicate his brother, Johnathan Taylor, in the crime. But Joplin police Lt. Darren Gallup said Monday that investigators have reason to believe that Johnathan Taylor was involved, and thus he is charged.

“On each one of these guys, we’ve gotten corroborating statements or corroborating evidence that they were there,” Gallup said.

Gallup said police have looked into Elijah Taylor’s statement about a man who stayed in the car while the others went inside. At this point in the investigation, there is no evidence of the man’s presence at the scene or involvement in the crime in any other manner, he said.

On the witness stand, Elijah Taylor named yet another man as the provider of the information on which they were acting that night, namely that Wages was in possession of a large amount of cash and Ecstasy pills. Gallup said that claim remains under investigation without any charge having been brought against him.

Extradition pending

MARCUS STEPHENS, also known as Marcus Hill, has yet to be brought to Missouri from Tulsa to face juvenile and possibly adult court proceedings in the slaying of Jacob Wages, of Joplin.

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