State v. Petary, 71189

• Decision Date: 12 December 1989
• Docket Number: No. 71189,71189
• Citation: 781 S.W.2d 534
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald Eugene PETARY, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 534

781 S.W.2d 534

STATE of Missouri, Plaintiff-Respondent, v. Donald Eugene PETARY, Defendant-Appellant.

No. 71189.

Supreme Court of Missouri En Banc.

Dec. 12, 1989.

Rehearing Denied Jan. 10, 1990.

Craig A. Johnston, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HIGGINS, Judge.

Donald Eugene Petary was convicted by a jury of first degree murder, section 565.020.1, RSMo 1986; punishment was fixed at death. Judgment was entered accordingly. Affirmed.

Appellant charges the trial court erred: in overruling his motions for acquittal and for a new trial; in allowing evidence of unadjudicated crimes during the penalty phase; and in overruling his motion for the appointment of a second psychiatrist. He contends further that prosecutorial discretion to waive a request for the death penalty renders its imposition arbitrary and capricious.

Appellant also charges the trial court erred, as matters of plain error: in failing to declare a mistrial following the State's closing argument; in excluding expert testimony as to the lack of deterrent effect of the death penalty; in giving instructions that failed to cover the burden of proof and that the jury must find unanimously the existence of each aggravating circumstance before considering it in returning its verdict; in its Instruction No. 19 on mitigating circumstances; in submitting Instruction No. 16 on aggravating circumstances; and in failing to submit a second degree felony murder instruction. He also argues, as matters of plain error: because a bailiff had excused a venireperson from the panel, the jury panel was not in compliance with the statute; one juror should have been stricken for cause because of her answers during voir dire; section 565.032, RSMo 1986, does not afford capital defendants the same procedural protection accorded to non-capital defendants; and statements of his codefendant to FBI agents should not have been admitted.

I. The Case

The evidence before the jury showed that in April 1987 Dan and Stella Allen lived in Ottumwa, Iowa, with their 17-year-old pregnant daughter, Christine, and their 12-year-old daughter, Kathy; both were special education students. While Mr. Allen was in the hospital following a heart attack, Donald Eugene Petary and his nephew, Andrew Six, went to the Allen home to look at a pickup truck the Allens were trying to sell to raise money for Mr. Allen to go to Texas for open heart surgery.

A few days later, after purchasing a roll of duct tape and two packages of plastic gloves, they returned in Petary's station wagon to the Allen home. Although it was late at night, Mrs. Allen agreed to go with them to test drive the truck. Mr. Allen, by now home from the hospital, remained at home. While in the truck, Six overpowered Mrs. Allen and Petary taped her hands behind her back; Petary then drove back to the trailer where the Allens lived. Six stated he wanted to rape Christine. Upon their arrival, Mr. Allen came out of the trailer; Six held a butcher knife to Mrs. Allen's throat, and Petary, holding a butcher knife, forced Mr. Allen into the trailer, where Six taped his hands. Six then ordered the Allens into a bedroom, taped their mouths, and forced Mr. Allen to his knees.

Petary, holding a knife, went into Christine's bedroom, began kissing her, and threatened to kill her if she tried to use the telephone. He then left; Six entered and raped her while holding a butcher knife. Petary and Six then assembled all the Allens in one room and made Kathy and Christine don bib overalls. Petary took the girls to the station wagon, still holding the knife and threatening to kill them if they were not quiet. Six took the parents' wallets and then brought the parents outside; Mr. Allen ran to a neighbor's house. Six cut Mrs. Allen's throat, exposing her carotid artery. She later had to be hospitalized for nine days. Christine escaped from the station wagon; Six got in, and he and Petary drove off with Kathy in the station wagon.

Petary drove to the home he shared with his common-law wife and switched vehicles; a few minutes later sheriff's deputies found Petary's station wagon with blood still warm on the hood and fender, a knife on the driver's seat, a half pint bottle of liquor, a piece of bloody duct tape, and receipts and wrappers for the duct tape and gloves. Petary and Six then went to Petary's friend's home where they collected approximately $60 as a loan repayment, then drove south on U.S. Highway 63 toward Missouri, discarding the wallets along the way. The next evening they were arrested by Texas state troopers in east Texas.

Petary waived his Miranda rights and stated he did not remember seeing Kathy in the car when they left; he passed out and awoke near daylight somewhere north of Kansas City on I-35, heard car tires spinning on gravel, and saw a Highway 63 road sign and a concrete culvert under the road. With this information, law enforcement officers found Kathy's body in a ditch near a culvert on a gravel road off U.S. 63 in Schuyler County; there was blood on the side of the culvert and a pool of blood near the body. She was wearing the bib overalls; her underwear had been stuffed between her legs. Her throat had been cut; she had bled to death because her carotid artery was severed. She also had scrapes and two smaller cuts around the main stab wound.

Fibers taken from the car matched fibers found in Kathy's clothes. A fiber from the car also matched a fiber in her pubic hair and a hair found in her underwear was consistent with Six's.

The foregoing statement demonstrates a submissible case in support of the jury's verdict on guilt.

In the punishment phase of the trial, the State presented, in addition to the foregoing, evidence of Petary's prior convictions and institutionalization, attempted escape from the Putnam County jail, abuse of another inmate, and sexual abuse of his daughters and stepdaughter when they were children. Petary presented witnesses concerning the high degree of security in facilities used to house inmates serving sentences without possibility of probation or parole, and testimony from friends and his common-law wife in mitigation of his sentence. The jury found both the statutory aggravating circumstances of murder during a kidnapping and of a witness and the above nonstatutory aggravating circumstances to apply as submitted and assessed defendant's punishment at death.

II. Preserved Errors

A.

Appellant argues that the trial court should have acquitted him or awarded a new trial because the State's evidence of his intent and deliberation was circumstantial and failed to prove that he knowingly caused Kathy's death after deliberation. The State is not required to prove that defendant's accomplice intended to cause the victim's death. In order to convict Petary as an accomplice to first degree murder, the prosecution must prove that he aided in the crime with the purpose of promoting the commission of that crime. State v. Roberts, 709 S.W.2d 857, 861 (Mo. banc 1986), cert. denied, 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378 (1986); State v. White, 622 S.W.2d 939, 943 (Mo. banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982).

Appellant's argument is answered by evidence that Petary planned the murder with Six. He brought Six to the Allen home for the ostensible purpose of buying the truck; he bought the duct tape and plastic gloves; he told Mrs. Allen the pretext of wanting to test drive the truck; and he held members of the family at knife point and threatened to kill them. State v. Rodden, 728 S.W.2d 212, 213 (Mo. banc 1987).

B.

Appellant argues that the trial court abused its discretion in admitting evidence of prior sexual abuse of his daughter and stepdaughter, attempted escape from jail and an assault committed on another inmate while awaiting trial, because these crimes were unadjudicated. He asserts that the imposition of the death penalty based on a finding of unadjudicated crimes does not meet the constitutional requirement of reliability, and also that the time of some of the alleged crimes was so remote as to preclude defense.

In State v. Jones, 749 S.W.2d 356, 364 (Mo. banc 1988), this Court held that evidence of the defendant's prior unadjudicated criminal conduct may be heard by the jury in the punishment phase of a trial: "The jury at the punishment phase is entitled to full information about the defendant and his previous conduct." See also Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976); State v. Malone, 694 S.W.2d 723, 727 (Mo. banc 1985); State v. Gilmore, 661 S.W.2d 519, 524 (Mo. banc 1983).

The evidence of Petary's sexual abuse of his children was relevant to show his character under the statute. Any question of remoteness was for the jury. State v. Muthofer, 731 S.W.2d 504, 509 (Mo.App.1987). The jury was aware that these crimes were unadjudicated.

C.

Appellant argues the trial court erred in denying his motion for a second psychiatric examination at the state's expense to seek potential mitigating evidence. Under section 552.020.6 and section 552.030.3, RSMo 1986, defendant was not entitled to a second psychiatric examination at state expense. State v. Williams, 603 S.W.2d 562, 565 (Mo.1980); State v. Grant, 560 S.W.2d 384, 386 (Mo.App.1977). Appellant cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), a case that is inapposite because it dealt with an initial psychiatric examination. Petary had already had a psychiatric examination at state expense, testing his competency to stand trial as well as his competency at the time of the offense.

D.

Appellant argues because the prosecutor in Missouri can choose not to seek the death penalty under sections 565.004.4, 565.005.1, 565.006.3, and 565.030, RSMo 1986, without statutory guidelines or time limitations in which to...