State v. Williams, 61740

Citation611 S.W.2d 26
Decision Date13 January 1981
Docket NumberNo. 61740,61740
PartiesSTATE of Missouri, Respondent, v. Vicky Lynn WILLIAMS, Appellant.
CourtUnited States State Supreme Court of Missouri

Charles M. Shaw and Clifford Schwartz, Clayton, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Appellant was charged by information in lieu of indictment in the Circuit Court of St. Louis County, Missouri, with capital murder for the killing of her husband, Gilbert Williams. Sec. 565.001, RSMo 1978. She was convicted of capital murder and sentenced by the jury to life imprisonment without possibility of probation or parole for fifty years. Jurisdiction for this appeal lies in this Court by virtue of Art. V, § 3, Mo.Const.

There being no challenge to the sufficiency of the evidence to support the conviction, only a brief recitation of the facts is necessary. Gilbert and appellant were having marital difficulties. Several witnesses testified that appellant had complained that Gilbert beat her and their two children. It also appears that appellant had contemplated getting a divorce, but had abandoned the idea for fear that she might lose custody of the children. This fear was based generally upon appellant's sexual conduct. She characterized her marriage to Gilbert as an "open marriage" wherein their sexual relations were not exclusive.

At least as early as November of 1978, appellant began soliciting various young men to assist her in killing Gilbert. Prior to February 1979, two different plans to that end were developed, but neither was implemented for lack of such assistance or for lack of opportunity. Finally, on the evening of February 2, 1979, appellant successfully recruited five men, Michael Shane, David Yoebstl, Robert Abel, Ronald Nunnery and Terry McIlvoy, to travel to the Spirit of St. Louis Airport, where Gilbert worked as a security guard, to kill him. All but Yoebstl went in search of Gilbert, but could not get close enough to his truck to complete the task. On the evening of Saturday, February 3, 1979, appellant hosted a party while Gilbert was at work at the airport. There was testimony that she told some of the men that the job had to be done that night.

Early Sunday morning, February 4, the same five men again went to the airport. Shane and McIlvoy walked to a point on the airport grounds where appellant told them Gilbert stopped on his rounds to punch a watchmen's clock. Shane carried a hickory club and McIlvoy was armed with a .22 calibre rifle. When Gilbert stopped his truck, McIlvoy fired several rounds into the driver's side window. Shane used the club to smash out the remainder of the window and McIlvoy shot a few more times through the opening. A post mortem examination of Gilbert's body revealed that he was hit with five .22 caliber bullets.

In the first of five points of error, appellant claims that the trial court committed prejudicial error in giving instruction MAI-CR 2.01, rather than MAI-CR2d 2.01. 1 She urges this Court to adopt the recommendation of the Committee on Pattern Criminal Charges and Instructions that MAI-CR2d instructions be used for all offenses committed after January 1, 1979. 2 This rule was recently approved in State v. Lute, 608 S.W.2d 381 (Mo. banc 1980).

It is clear that the giving or failure to give a proper instruction is error, the prejudicial effect of which, if any, to be judicially determined. Rule 20.02(e), now Rule 28.02(e); State v. Heitman, 589 S.W.2d 249, 255 (Mo. banc 1979); State v. Graves, 588 S.W.2d 495 (Mo. banc 1979). Indeed, as we said in Graves, supra, at 497:

(A)ny error associated with noncompliance is "presumptively prejudicial," State v. Clifton, 549 S.W.2d 891, 895 (Mo.App.1977), or as earlier put in State v. Billingsley, 534 S.W.2d 484, 485 (Mo.App.1975), any error associated with noncompliance "must be deemed prejudicial unless the contrary clearly appears." * * *

In this case, appellant contends that the indefinite masculine pronouns "he" and "his" as contained in MAI-CR 2.01 cause the jury to weigh the testimony of male witnesses differently than that of female witnesses. She notes that this Court condemns the use of instructions which unduly direct attention to the credibility of a witness or classes of witnesses. State v. Everett, 448 S.W.2d 873, 878 (Mo. 1970). Appellant contends that she was prejudiced by MAI-CR 2.01 because all the witnesses against her are male, while the primary defense witness, appellant herself, is female. We find no prejudice resulting from the giving of MAI-CR 2.01, rather than MAI-CR2d 2.01. First, it is a long established rule of English grammar that the use of indefinite masculine pronouns is entirely proper when referring to a person in a neutral and general sense. Further, this exact complaint was asserted and rejected in State v. Jones, 604 S.W.2d 665 (Mo.App.1980).

Appellant next attacks Instruction No. 4, the capital murder verdict directing instruction submitted by the State. 3 Instruction No. 4 contained the phrases "certain persons," "such persons" and "other persons," in successive paragraphs to describe the persons whom appellant allegedly aided in the killing of Gilbert. She claims that not only are these different modifiers confusing in that the jury could find that appellant gave aid to more than one group, but also that any suggestion that she aided more than one group is a misstatement of the evidence. This argument is self-contradictory, for if there is evidence of only one group of people, how can it be said that a jury of reasonably intelligent and attentive people could be confused or misled into finding that there were two such groups. This attack is obviously without merit. Second, appellant argues that Instruction No. 4 is defective because its description of "aid rendered" is of insufficient detail. It appears that Instruction No. 4 is a combination of MAI-CR2d 2.12 and MAI-CR2d 15.02; thus, the content of the instruction is governed by Rule 28.02(d), which specifically prohibits the submission of "detailed evidentiary facts." For this reason, appellant's second attack also fails. Third, appellant cites State v. Edmonds, 347 S.W.2d 158 (Mo. 1961) to argue that unfairly repetitious instructions should not be given. She contends that Paragraph Third of Instruction No. 4 is so similar to Instruction No. 7 (MAI-CR2d 2.10) as to be unfairly repetitious. Contrary to appellant's claim, the Notes on Use to MAI-CR2d 2.10 require that both MAI-CR2d 2.10 and MAI-CR2d 2.12 be given. In summary, we find that none of the alleged defects in Instruction No. 4, either singly or collectively, resulted in any prejudice to appellant.

Appellant's third point of error is that the trial court erroneously gave the third paragraph of Instruction No. 7 (MAI-CR2d 2.10, P 4) which reads:

It is no defense to any prosecution for any offense in which the criminal responsibility of the defendant is based upon the conduct of another that such other person has been convicted of some other offense or degree of offense, or is immune from prosecution.

She points to the Notes on Use to MAI-CR2d 2.10, saying that this language should not be included unless there is evidence making it applicable. In this case, appellant elicited testimony that some of the participants had been granted immunity or had accepted plea bargains. 4 She argues, however, that such evidence was used solely for impeachment, rather than to further any defense to the charge; and that the inclusion of the paragraph was prejudicial because it tended to deprecate the impeaching quality of the testimony.

The State counters this argument by pointing out that prior to closing argument, there is no way to know what uses a defendant may make of evidence such as this. Such being the case, the contested paragraph would become utterly useless because the State and the trial court would be forced to speculate as to whether it would become applicable. While this argument has a certain attraction, we need not rely upon it. In this case, the defense ably used the testimony in closing argument to impeach the witnesses' credibility. The third paragraph of Instruction No. 7 merely limited the jury's consideration of the testimony to impeachment. Rather than diminish the quality of the impeaching character, the instruction serves to reiterate that the testimony may be used only for impeachment purposes, and thus, no prejudice resulted from this use.

Appellant's fourth assignment of error is that the trial court improperly failed to direct a verdict and enter a judgment of acquittal because it lacked jurisdiction to hear this case. This contention is based upon an alleged vagueness of the information by which appellant was charged. She believes the phrase "aid others" is insufficient to properly inform her of the charge.

It is beyond question that to be sufficient, an information must adequately notify a defendant of the charge, State v. Tandy, 401 S.W.2d 409 (Mo. 1966), and the elements of the offense charged must be pleaded with definiteness and certainty. State v. Cantrell, 403 S.W.2d 647 (Mo. 1969). As we said in State v. Brooks, 507 S.W.2d 375 (Mo. 1974), an information is jurisdictional in the sense that if it fails to charge a crime the court acquires no jurisdiction to proceed, and whatever transpires thereafter is a nullity.

In order to determine whether the trial court acquired jurisdiction of appellant's case, we examine the information. 5 The information substantially follows the form set out in MACH-CR 16.02. It contains the statutory language of § 565.001, RSMo 1978, the capital murder statute, such language being preferred. State v. Simone, 416 S.W.2d 96 (Mo. 1967). The county in which the crime occurred was stated in the information, and when examined, it is clear that it accurately and fully stated all the essential elements of the crime of capital murder and therefore,...

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