State v. Twenter

• Citation: 818 S.W.2d 628
• Decision Date: 16 October 1991
• Docket Number: No. 71319,71319
• Parties: STATE of Missouri, Respondent, v. Virginia A. TWENTER, Appellant. Virginia A. TWENTER, Respondent, v. STATE of Missouri, Appellant.
• Court: United States State Supreme Court of Missouri

Page 628

818 S.W.2d 628

STATE of Missouri, Respondent, v. Virginia A. TWENTER, Appellant.

Virginia A. TWENTER, Respondent, v. STATE of Missouri, Appellant.

No. 71319.

Supreme Court of Missouri,

En Banc.

Oct. 16, 1991.

As Modified on Denial of Rehearing

Nov. 19, 1991.

Nancy A. McKerrow, Columbia, for appellant.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for respondent.

HOLSTEIN, Judge.

Defendant Virginia A. Twenter was convicted of the first degree murders of her father, J.D. Wells (Count I), and her stepmother, Marilyn K. Wells (Count II) pursuant to § 565.020. ¹ The jury assessed punishment at life imprisonment without possibility of parole for fifty years on Count I. The death penalty was assessed on Count II. Defendant appeals from the judgment imposing those sentences. Defendant also filed a petition for post-conviction relief pursuant to Rule 29.15. The court hearing the post-conviction proceeding (motion court) found that defendant had been denied effective assistance of counsel. The motion court set aside the convictions and ordered a new trial on all issues. The state appeals from the motion court's judgment

setting aside the convictions. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. The judgments are affirmed in part, reversed in part and remanded for a new trial on the issue of punishment on Count II

Defendant challenges the sufficiency of the evidence to establish her criminal agency in the murders. In determining the sufficiency of the evidence, all evidence together with all reasonable inferences is viewed favorably to the verdict, and evidence or inferences contrary to the verdict are ignored. State v. White, 798 S.W.2d 694, 697 (Mo. banc 1990).

FACTS

The body of J.D. Wells was found by his daughter, Anna Laas, in the living room of the Wells' home at about 7:15 a.m. on May 5, 1988. About noon the same day the body of Marilyn Wells was found in a field approximately eight miles from the Wells' home. Her body was approximately fifty-six feet from a gravel road. Both deaths were caused by gunshot wounds. J.D. Wells had been shot in the back and in the chest. Marilyn had been shot once in the chest. She appeared to have been shot at the site where her body was discovered.

On the evening of May 4, 1988, between 9:30 and 11:30 p.m., a neighbor of the Wells was watching television when she heard two gunshots coming from the Wells residence.

Ballistic evidence indicated that the fatal shots were fired by a .38 caliber pistol registered to Hugo Twenter, appellant's ex-husband. Hugo had discovered the gun missing from his pickup truck as he was leaving Virginia Twenter's residence one evening in April of 1988. He had reported the missing gun to law enforcement officers prior to the murders. There was also evidence that defendant knew where Hugo kept the gun in the pickup truck. After the gun was taken, defendant indicated to Hugo that she could produce the gun. The gun was found on May 6, 1988, in a creek south of the Sedalia city limits, not many miles from the scene of the crime.

Two bloody shoe prints were found on the linoleum floor at the Wells residence. The prints were the same design, size, shape and pattern as were the shoes worn by defendant when she was interviewed by police. However, an expert witness for the state could not say with certainty that defendant's shoes made the print on the linoleum. A part of a thorn taken from the sole of one of the shoes was similar to locust tree thorns found on the ground on a direct line between the road and the place where Marilyn Wells' body was found. A few feet from Marilyn's body was a pack of Marlboro cigarettes, the same brand smoked by defendant.

A search of defendant's home turned up a cash register tape. The tape was hidden under a mattress and mattress liner in defendant's bedroom. The cash register tape had been made by a cash register used at J.D. Wells' restaurant, the "Coffee Pot Cafe." The tape reflected receipts from May 3. J.D. Wells had taken the tape marked "May 3" when he left the restaurant on the afternoon of May 4, 1988.

Defendant was in serious financial trouble at the time of the murders. Many of her debts were in arrears. Six months prior to the murders, J.D. Wells sent a letter to defendant demanding payment of a loan he had made to her the prior year. Her car had been repossessed. The lender on her home mortgage had sent a notice of acceleration of the debt and intent to foreclose. Five days prior to the murders defendant had purchased a new car, paying for it with a $4,400 check. The check had been returned to the car dealership, and on May 4th the dealer had called defendant, insisting that the check be paid. Defendant told the dealer that she was relying on a loan from her father to pay for the car. Yet a stepsister and a brother of defendant testified that defendant and her father had not gotten along well for some time prior to the murders.

On the morning of the same day the Wells' bodies were found, defendant appeared at the car dealership with a check for $4,400 signed by Marilyn Wells on the "Coffee Pot" account. That same morning she presented a check to a bank, also

signed by her stepmother on the same account, for $4,000

The checkbook and check register on the "Coffee Pot" account were found in the Wells home. It showed all checks accounted for except the last three missing checks, numbered 3743, 3744, and 3745. Two of those checks were the ones that had been presented by defendant. The third check was never located. None of the three checks were recorded in the check register. There was evidence that J.D. Wells was a careful businessman and usually kept records regarding his checks and loans to his children.

The police interrogated defendant. She could only verify her whereabouts before 9:30 p.m. and after 11:30 p.m. on the night of May 4, 1988. She first told police she had driven to Knob Noster during that time frame. However, she testified at trial that she went to Warrensburg and met two men with whom she performed "some sex acts." She could only give the full name of one of the men, Robert Arnell, and the first name of the other, Steve. According to defendant, Arnell "was on a construction site in Warrensburg." She had no other knowledge about where the men lived.

After J.D. Wells' body was discovered but before Marilyn had been found, family members, including defendant, began gathering at the home of defendant's brother, John Wells. Anna Laas, defendant's stepsister, was describing what she had found earlier that morning to others present. When she reached the point in her story mentioning the bloody shoe prints left on the linoleum, defendant said, "Oh God," and fainted. When she regained consciousness, defendant insisted on making a telephone call to her housemate, Mike Turner. Anna and another sister, Clara Denker, overheard defendant's part of the conversation. They each testified that they heard defendant say that both her father and stepmother had been shot. At the time, Marilyn Wells' body had not been discovered. Upon making that statement defendant stopped herself, looked at Laas and said, "Well, just my dad's been shot, and we can't find my mom."

I. DIRECT APPEAL

A.

Defendant argues that the state's evidence does not exclude the "reasonable hypothesis of innocence" that her parents loaned her the $8,400 earlier in the evening of May 4, 1988, and that her parents were well when she left them at about 6:30 p.m. Defendant would have this Court discount the evidence of the bloody shoeprint, the cash register tape, the evidence indicating that she had possession of the murder weapon, her reaction upon learning of the shoeprint, and the content of the conversation with Mike Turner. That would require a weighing of the evidence. This Court does not weigh evidence in a jury case. That function belongs to the jury. Here, we view the evidence favorably to the verdict.

The evidence established defendant's monetary motive for the murders, her access to the murder weapon, and her inconsistent and unverifiable explanation of her whereabouts on the fatal evening. The chain of circumstances is completed by 1) the bloody shoeprint at the scene, 2) defendant's reaction upon learning the bloody shoeprint had been found, 3) the cash register tape being found in defendant's bedroom, and 4) the checks in the defendant's possession which had not been recorded in the check register. The facts in this circumstantial evidence case are 1) consistent with each other, 2) consistent with guilt, and 3) inconsistent with any reasonable theory of innocence, including that suggested by defendant. State v. Wahby, 775 S.W.2d 147, 154 (Mo. banc 1989). The evidence need not be conclusive of guilt, nor need it demonstrate the impossibility of innocence. Id. at 154-55.

Added to the above evidence was the evidence that defendant's father did not have a good relationship with defendant, the evidence that he had recently demanded that she pay the loan, and defendant's premature statement that both parents were dead. This evidence, while not essential, was properly before the jury and also tends to negate defendant's theory of innocence.

The evidence, although circumstantial, was sufficient to establish defendant's criminal agency and inconsistent with any reasonable theory of innocence

B.

Defendant claims that the motion for mistrial should have been granted following the playing of part of an audio tape made of a police interview of Linda Turner. Linda was called as a witness for defendant. She testified that she was with defendant after 11:30 p.m. on May 4, 1988. During cross-examination the prosecutor tried to establish that defendant told Linda she had received a $5,000 check from her father a week prior to the killings. Turner denied she had made such a statement.

During rebuttal, the state called police officer William Chapman, who had...