State v. Banks, 20264
| Decision Date | 19 April 1996 |
| Docket Number | No. 20264,20264 |
| Citation | 922 S.W.2d 32 |
| Parties | STATE of Missouri, Respondent, v. Terry BANKS, Appellant. |
| Court | Missouri Court of Appeals |
Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, David R. Truman, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Appellant guilty of murder in the first degree, § 565.020, RSMo Cum.Supp.1992, and assessed punishment at imprisonment for life without eligibility for probation or parole. The trial court entered judgment per the verdict.
Appellant brings this appeal, averring the trial court erred in (1) overruling Appellant's objection to a comment by the prosecutor during final argument, (2) receiving in evidence, over Appellant's objection, incriminatory statements by Appellant to an investigator, and (3) allowing the State to endorse a witness five days before trial.
The victim was Tim Eastburn. He was shot twice at his home in McDonald County on November 19, 1992. The second shot caused immediate death. 1
Appellant does not challenge the sufficiency of the evidence to support the verdict, hence we recount only the evidence necessary to address the claims of error, viewing it in the light most favorable to the verdict. State v. Schaal, 806 S.W.2d 659, 661 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992).
In early November, 1992, Dennis Johnson ("Johnson") 2 was acquainted with Matt Meyers 3 ("Matt") and Appellant. At that time, Johnson resided in a trailer "about midway between Joplin and Neosho" with three other people, one of whom was Sheena Eastburn ("Sheena"), ex-wife of the eventual victim ("Tim"). Matt and Appellant resided in an apartment at Duenweg. Tim resided in a house on Route JJ, two and a half miles south of Highway 76 outside Rocky Comfort.
According to Johnson, Appellant and Sheena had recently "started dating" and "were really close."
Johnson testified that on November 17, 1992, he drove himself, Matt and Appellant to Tim's residence in a Ford pickup. Either Matt or Appellant--Johnson avowed he could not "honestly say" who--entered the house through the back door and brought out an "AK-47 assault rifle."
The trio then proceeded "to a residence somewhere outside of Joplin" and showed the rifle to a man "to see if he wanted to buy it." He refused.
The trio then went to the trailer where Johnson resided. There, Johnson "part[ed] company" with Matt and Appellant.
Unknown to the trio, William Finan, a neighbor of Tim, saw the Ford pickup enter Tim's driveway. Finan watched the trio exit the pickup and go behind Tim's house. Using a telescope, Finan spotted the pickup's license number, which he recorded. Finan heard "a loud noise behind the house," but did not know what it was. After some ten minutes, the trio departed.
When Tim arrived home, Finan saw Tim enter the house and come back outside. Finan approached Tim. Tim said someone "had broke into his house." Finan told Tim, "I've got the tag number, I watched them do it." Finan described the pickup, whereupon Tim said his ex-wife "had come to clean him out."
Tim "called the police" on Finan's telephone. Deputy Sheriff Joe Mathis of McDonald County and another officer responded to the call. Tim told Mathis the intruders had taken "an AK-47" with a full clip of ammunition. Finan gave Mathis the license number of the pickup. The number was traced to Richard Meyers, Matt's father.
On November 18, 1992 (the day after the burglary), Matt and Appellant were at a trailer where Matt's cousin, Eddie Brickey, resided. Matt and Appellant had a rifle and a dog. At trial, Brickey was shown Tim's AK-47. He identified it as the rifle he saw November 18.
According to Brickey, Matt and Appellant left the trailer in a pickup, taking the rifle and dog with them. They later returned with the rifle, but without the pickup and dog. Brickey quoted Matt and Appellant as saying they pushed the pickup into "a water-filled mine shaft."
The next day, November 19, 1992, Brickey, Sheena, Matt and Appellant went to "some apartments in Webb City" in a "1978 Trans Am" owned by Brickey's "girlfriend." There, Brickey loaned the Trans Am to Sheena. She, Matt and Appellant drove away, leaving Brickey at the apartments. Brickey's testimony continued:
"Q. Did they have the rifle with them when they left?
A. Yes.
Q. Who was carrying the rifle when they left, if you recall?
A. I don't recall.
Q. But one of the three of them was?
A. Yes."
The next time Brickey saw the Trans Am was "about 11:00 o'clock" the next morning. It was parked in front of Richard Meyers' trailer.
Johnson, the third participant in the burglary, testified that on the evening of November 19, 1992 (the date Sheena borrowed the car from Brickey), Sheena, Matt and Appellant arrived at the trailer Johnson shared with Sheena and others. Using the borrowed car, Sheena, Matt and Appellant gave Johnson a ride to a Joplin bar. Johnson saw Tim's AK-47 in the trunk. Johnson explained, "[I]t was pulled up part way through a speaker hole in the back of the car."
Asked whether Sheena said anything en route to the bar, Johnson avowed Sheena said "there was more in the house than what they had got ... [Tim] had money and drugs and ... she knew where everything was." Johnson's testimony continued:
"Q [D]id she suggest at any point, that they--the three of them, should kill Tim Eastburn?
A She mentioned that Tim had raped her before, and that he had been very mean to her and stuff, and that she--the comment was made that she wished that he was dead.
Q Did the Defendant respond to that?
A There was--him and Matt Meyers both responded, I'm not sure who said it first, but one of them made the comment that, I will kill him, and the other said, well, if you don't, I will."
Johnson exited the car upon arrival at the bar.
Later that night (November 19, 1992), Finan, Tim's observant neighbor, saw a car pause at Tim's driveway approximately thirty seconds, then proceed south, turn around, and return north. It stopped on the road "and the lights went out."
Some five minutes later, Finan heard a gunshot. Within a minute thereafter, he heard a "muffled" sound. He then heard voices and heard the car start and depart. He immediately called "the authorities." The call was logged at 10:51 p.m.
Deputy Sheriff Mathis and another officer responded to the call. Mathis saw a shell casing on a back porch step and a "busted" window next to the back door. Mathis then went to the front door, looked in, and saw Tim on the floor. Mathis "kicked the door in," entered the house, and determined Tim was dead.
An autopsy revealed Tim had been shot twice. One bullet entered his back near the left shoulder blade, passed through the spine, completely severed the spinal cord, and exited the right side of the neck. The destruction of the spinal cord detached the brain from the rest of the body, causing instant paralysis from the neck down and making death inevitable within twenty minutes.
The second bullet entered Tim's head at the right temple and exited the left side of the head. This was a "contact wound," i.e., the muzzle of the gun "was held tightly against the skin." This wound was instantly fatal.
Matt's sister, Angela Vaughn, testified Matt and Appellant arrived at the residence of her and her husband, Carey Vaughn, in Baxter Springs, Kansas, between 5:30 and 6:00 a.m., November 20, 1992. According to Angela, Baxter Springs is a thirty-minute drive from Joplin.
Matt and Appellant asked whether they could stay. Angela agreed, and returned to bed. Carey stayed up, getting ready for work.
Later that day, Angela visited her mother. A "bunch of policemen" were there, looking for Matt and Appellant.
Upon returning to her home, Angela drove Matt and Appellant, at their request, to "Sonny's Market" near Carl Junction. She "dropped them off" after dark, "about 9:00 o'clock."
Five days before trial, the prosecutor filed a motion to endorse Angela's husband, Carey, as a State's witness. At the start of the trial, Appellant objected. The trial court permitted the endorsement. That ruling is the subject of Appellant's third point, addressed infra.
Carey testified Appellant was "nervous" when he and Matt appeared at Carey's home November 20, 1992. Asked whether Appellant said anything, Carey replied: Later that day, Carey learned the police were looking for Matt and Appellant.
Two days later, on November 22, 1992, Jasper County authorities received information that Matt had been seen in Stringtown "just outside of Carl Junction." Deputy Sheriff Kevin Martin of Jasper County and other officers went to the area and established a "perimeter" around a trailer at Sonny's Mart. Using a public address system, Martin ordered Matt out of the trailer. Matt eventually came out and was taken into custody.
Martin and another officer then entered the trailer and discovered Appellant "attempting to go underneath a bed in the back bedroom." Martin apprehended Appellant and informed him of his rights under "the Miranda decision." 4 Martin asked Appellant if he understood. Appellant said yes. Martin turned Appellant over to one of Martin's "supervisors," without interrogation.
Trooper Miles Parks of the Missouri State Highway Patrol, a major case investigator, was one of the officers who examined the scene of Tim's murder. Parks was notified November 22, 1992, that Matt and Appellant had been located near Carl Junction. Parks went there and encountered Appellant seated in a patrol car.
After verifying that Appellant had been "advised of his rights," Parks told Appellant that he (Parks) "knew exactly what had happened, and that it was time for him to tell me what had happened." However, Parks did not question Appellant in the car.
Parks saw Ap...
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