State v. Tisius

Citation92 S.W.3d 751
Decision Date10 December 2002
Docket NumberNo. SC 84036.,SC 84036.
PartiesSTATE of Missouri, Respondent, v. Michael A. TISIUS, Appellant.
CourtUnited States State Supreme Court of Missouri

Deborah B. Wafer, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for Respondent.

RONNIE L. WHITE, Judge.

Appellant Michael

I.

Appellant Michael A. Tisius was convicted of two counts of first-degree murder, section 565.020.1 He was sentenced to death for each murder. Because the death penalty was imposed, this Court has exclusive appellate jurisdiction pursuant to Mo. Const. art. V, sec. 3. The judgment of the trial court is affirmed.

II.

The facts, which this Court reviews in the light most favorable to the verdict,2 are as follows:

In early June of 2000, Appellant and Roy Vance were cellmates at the Randolph County Jail in Huntsville, Missouri. Appellant's sentence lasted thirty days, and Vance told Appellant he would be in jail for some fifty years. As such, Appellant and Vance discussed various schemes where Appellant would return to jail to help Vance escape. In one of those plans, Appellant was to return to the jail with a firearm, force the guards into a cell, and give the gun to Vance, who would then take charge and release all of the inmates.

The Randolph County Jail was a two-story brick building that had been converted from a house. The front door of the jail was kept locked, and the officers could remotely open the door when visitors rang a doorbell. Inside the front door was a small foyer, and to the right behind a counter was the dispatch area where the officers were stationed. A hall led from the dispatch area to the jail cells in the rear of the building.

Appellant was released on June 13, 2000. Shortly after his release, Appellant contacted Vance's girlfriend, Tracie Bulington, who said that she wanted to go through with the escape plan. Four days later, Bulington drove from Macon to Columbia with a woman named Heather Douglas to pick up Appellant and drive him back to Macon; Appellant and Bulington stayed at Douglas' home for four or five days. During the ride to Columbia, Douglas heard the two discuss various ways of breaking Vance out of jail, including the idea of locking the jailers in a cell. They told Douglas they were joking. Douglas testified that over the days to follow, she heard Appellant and Bulington say that they were "on a mission," but they would not elaborate. Appellant and Bulington also described taking cigarettes to Vance at the jail and of having gotten information from a "stupid deputy." At other times they would stop talking when Douglas entered the room. Douglas also testified that Appellant and Bulington kept a stereo, clothing and camping gear in Bulington's car and that she also saw a pistol in Bulington's car.

Beginning June 17, 2000, and continuing over several days, Appellant and Bulington visited the jail several times. At or around 1:30 a.m. or 2 a.m. one of those mornings, they were admitted in the front door and delivered a pack of cigarettes to an on-duty officer, requesting that it be given to Vance. A day or two later, Appellant and Bulington returned to the jail with a pair of socks for Vance and asked questions about his upcoming court date.

Bulington testified that each delivery signified to Vance certain facts, such as that Appellant had made it to town or that the jail break would not occur the night of the delivery. During some of those visits, Appellant kept a .22 caliber pistol that Bulington had taken from her parents' home in the front of his pants. Appellant had tried to acquire a bigger gun than the one Bulington took. On the night of one of their visits, one officer testified that the Appellant and Bulington were acting "real funny," nervous and erratic, such that he wrote a police report about the visit.

Appellant tested the gun by firing it outside of Bulington's car window while the two were driving on country roads on June 21, 2000. Later that evening, Appellant and Bulington3 drove around listening to a song with the refrain "mo murda" (more murder) as they prepared to get Vance out of jail. Appellant rewound the cassette and played the "mo murda" song over and over. Appellant told Bulington "it was getting about time" and that "he was going to go in and just start shooting and that he had to do what he had to do." Appellant also said he would go "in with a blaze of glory."

At 12:15 a.m. on June 22, Appellant and Bulington returned to the Randolph County Jail, rang the doorbell and were admitted. Appellant again carried the pistol in his pants. Appellant and Bulington told the officers they were delivering cigarettes to Vance. The two officers present were Leon Egley and Jason Acton. Appellant made small talk with one of the officers for about ten minutes, discussing what Appellant was planning to do with his life and how Appellant was doing. Bulington testified that at that point, she was about to tell Appellant she was ready to leave but froze as she noticed Appellant had the gun drawn beside his leg. Appellant then raised his arm with the pistol drawn and, from a distance of two to four feet, shot Acton in the forehead above his left eye, killing him instantly. Egley began to approach Appellant, and about ten seconds after he killed Acton, Appellant shot Egley one or more times from a distance of four or five feet, until Egley fell to the ground. Both officers were unarmed.

Appellant then took some keys from the dispatch area and went to Vance's cell. Appellant could not open the cell, so he returned to the dispatch area to search for more keys. While Appellant was in the dispatch area, Egley grabbed Bulington's legs from where he was lying on the floor, and Appellant shot him several more times at a distance of two or three feet. Egley suffered five gunshot wounds, three to the forehead, a graze wound to the right cheek and a wound to the upper right shoulder. Not long afterwards, police found Egley gasping for air and a heard gurgling sound; he was surrounded by a pool of blood. Egley died shortly afterwards.

Appellant and Bulington fled in her automobile. Appellant threw the keys from the dispatch area out of the car window on the way out of town. Bulington threw the pistol from the car window while crossing a bridge on Highway 36. After the two had passed through St. Joseph and crossed the Kansas state line, Bulington's car broke down. Later that day, the two were apprehended by the police, and the keys and gun were recovered. After having waived his Miranda rights, Appellant gave oral and written confessions to the murders.

Appellant's theory at trial was that he was guilty at most of second-degree murder because although he admits that he shot and killed the two officers, he argues that he did so without deliberation. Further facts are set forth below as necessary.

III.
A.

In his first point, Appellant argues that the trial court erred in overruling his objection to the introduction of a rap song with the refrain of "mo' murda" (more murder), which was played to the jury in the penalty phase. Bulington testified that she and Appellant were driving around in her car the night of the murders while Appellant listened over and over to that song by the rap group Bone, Thugs `n Harmony. As noted above, while listening to the song over and over, Bulington testified that Appellant said "it was getting about time" and that he "was going to go in and just start shooting" and that he "had to do what he had to do." He also said he would "go in with a blaze of glory." The song was played to the jury, though the court sustained Appellant's objection to the State's offer of the song's written lyrics.

Appellant argues that the admission of the song violates his First and Fourteenth Amendment rights to listen to music of his choosing. In so arguing, Appellant cites Dawson v. Delaware,4 in which the defendant's affiliation in the Aryan Brotherhood was presented at the punishment phase of his capital trial.5 Dawson's conviction was reversed because the United States Supreme Court determined that his affiliation with the Aryan Brotherhood was irrelevant to the underlying case — the murder victim was white, as was Dawson, and racial hatred did not play a role in the killing.6 As such, the Court held that failing to connect Appellant's "abstract beliefs" with the issue being tried amounted to a First Amendment violation7 Appellant argues that similarly, the "mo murda" song was irrelevant to the underlying proceedings and in violation of his First and Fourteenth Amendment rights.

The general rule in Missouri is that evidence must be both logically and legally relevant in order to be admissible.8 "Evidence is logically relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case."9 The determination of legal relevance — the balancing of the probative value of the proffered evidence against its prejudicial effect on the jury — rests within the sound discretion of the trial court.10

The State's specific argument at trial was that Appellant used the tape to "psych" himself up for the "cold-blooded" murders.11 The evidence here was logically relevant: it was introduced in the context of Bulington's testimony to show what Appellant was doing and saying immediately before the murders. Direct proof of a required mental state is seldom available, and the mental state may be proved by indirect evidence and inferences reasonably drawn from the circumstances surrounding the slaying.12 The defendant's mental state may be...

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