State v. Basile

• Decision Date: 25 March 1997
• Docket Number: No. 77123,77123
• Citation: 942 S.W.2d 342
• Parties: STATE of Missouri, Appellant, v. Daniel Anthony BASILE, Respondent.
• Court: Missouri Supreme Court

Page 342

942 S.W.2d 342

STATE of Missouri, Appellant, v. Daniel Anthony BASILE, Respondent.

No. 77123.

Supreme Court of Missouri En Banc.

March 25, 1997.

Rehearing Denied April 29, 1997.

Craig A. Johnston, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Breck K. Burgess, Assistant Attorney General, Jefferson City, for Respondent.

HOLSTEIN, Chief Justice.

Daniel Anthony Basile was convicted of the first degree murder of Elizabeth Ann DeCaro. Basile was sentenced to death. Thereafter, Basile filed a motion for post-conviction relief pursuant to Rule 29.15. Relief was denied after a full evidentiary hearing. Basile appeals both judgments. This Court has exclusive appellate jurisdiction over the consolidated appeals. Mo. Const. art. V, § 3. The judgments are affirmed.

I.

The evidence is viewed in a light most favorable to the verdict. State v. Six, 805 S.W.2d 159, 162 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991).

The events leading up to the murder began on January 10, 1992, when James Torregrossa went to get a tire for his ex-girlfriend at the Old Orchard service station in Webster Groves. Richard DeCaro worked at the station. Torregrossa and DeCaro knew each other because they both belonged to Gold's Gym. DeCaro told Torregrossa that he had heavy payments on his van and asked Torregrossa if he knew of anyone that could "take it off his hands." In the same conversation, DeCaro asked if Torregrossa knew anyone who could "put a hit on somebody" for him. DeCaro also stated that his wife thought he was having an affair with his secretary and that he would not wish marriage on anyone.

Ten days later, DeCaro purchased a $100,000 life insurance policy on behalf of his wife, Elizabeth, listing himself as the primary beneficiary. On January 26, 1992, Richard DeCaro struck Elizabeth with their van, knocking her through the garage wall into the kitchen. She sustained severe bruising. The insurance company paid Richard DeCaro over $30,000 as a result of this incident.

In January of 1992, DeCaro asked Craig Wells, a manager at Old Orchard service station, if he knew anyone who could steal his van. Wells introduced DeCaro to Basile. The two met, and DeCaro offered Basile $15,000 to steal the van and kill Elizabeth. On February 8, 1992, Basile stole the van, drove it to Jackson, Missouri, and burned it. He received $200 for this job.

On February 28, 1992, Basile asked his friend, Jeffrey Niehaus, for a stolen gun that On March 6, 1992, Richard DeCaro picked up two of his four children from school and then went home to pick up the other two. He drove all four of the children and the family dog to the Lake of the Ozarks, leaving St. Louis a little after noon. They checked into the Holiday Inn at the lake at 2:59 p.m. Two of the children testified that they saw their mother alive before they went to school that morning. They testified that the dog would always bark at strangers.

was not traceable. On March 4, Basile showed his half-brother, Doug Meyer, a .22 caliber semi-automatic pistol with pearl-like grips. He claimed that he bought the gun from his father for $100. On March 5, Basile asked another friend, Susan Jenkins, to get him some latex gloves from the doctors offices in which she worked. On March 6, Basile told Meyer that he could not work that day because he was working for Richard DeCaro.

Between 2:00 and 2:30 p.m., a witness noted that the DeCaro garage door was closed. Elizabeth DeCaro left work at 2:20 p.m.. At 3:15 p.m., a neighbor stopped by and noticed the garage door was open and that the DeCaros' Blazer with personalized license plates reading "RIK-LIZ" was in the garage, but no one answered the doorbell.

At 4:15 p.m., Basile was seen driving the DeCaro's Blazer in St. Charles. That evening around 6:30 to 7:00 p.m., Basile called an ex-roommate for a ride, stating "Things went down. I did what I had to do." At 7:00 p.m., Basile called Doug Meyer and asked if Meyer had garage space where Basile could work on his car. Basile drove the Blazer to Richard Borak's home in Florissant and gave him a "boom box" stereo stolen from the DeCaro residence as a birthday gift. Basile told Borak that he "did this lady." Just after 8:00 p.m., the Blazer was spotted heading south on Interstate 270. At 10:30 p.m., Basile went to Meyer's house, where they ate pizza before going out for drinks.

Elizabeth DeCaro had planned to meet her sister, Melanie Enkleman, for dinner at 5:00 p.m. When the victim failed to show up for dinner or answer her telephone, Enkleman and a mutual friend went to the DeCaro home. They went in through an open side door in the garage and then through an open door leading into the house. They found Elizabeth DeCaro lying face-down on the kitchen floor. Enkleman called 911 at around 8:00 p.m.

Elizabeth DeCaro had two gunshot wounds in the back of her neck and bruises on her body. When she was shot, the gun was in contact with her body, and she was either kneeling or lying down. The bullets recovered from her body were .22 caliber. Police found no signs of forced entry. Audio-visual equipment had been removed from the home, but the cables and wires had been carefully unplugged or unscrewed from the walls.

On March 7, 1992, after reading about the DeCaro death in the paper, Basile called Craig Wells and stated, "It looks like I've gotten set up." On March 9, Meyer found the DeCaro's dismantled Blazer in the garage that he had provided for Basile. Meyer helped Basile take parts of the Blazer to the dump. Meyer realized that the Blazer belonged to DeCaro and confronted Basile. Basile admitted to Meyer that he stole the Blazer. At trial, Meyer testified that Basile told him "it was either him or her, and he wasn't going back to jail." Basile told Meyer that he was a thief, not a murderer. On March 11, Meyer contacted the police.

On March 12, 1992, Basile went to Kenneth Robinson's trailer and told Robinson that he was in trouble because the police thought that he had "done the van and the lady." Robinson contacted the police. The police arrested Basile a few hours later.

In the investigation, police found a license plate from the stolen and burned van in Cape Girardeau County. They also found the van itself. The dismantled remains of the DeCaro's Blazer was found in an apartment garage near Fenton, Missouri. Also in the garage was a portable stereo unit. Police later recovered the DeCaro's stolen "boom box" from Ricky Borak's apartment.

Basile did not testify on his own behalf during trial. He presented the testimony of four witnesses. The jury found Basile guilty of first degree murder. Basile also did not testify in the penalty phase. According to a stipulation, he had prior convictions for burglary In assessing punishment, the jury cited two statutory aggravating circumstances: (1) that Basile murdered Elizabeth DeCaro for another for the purpose of receiving money or other things of value, and (2) that Basile murdered DeCaro as an agent or employee of Richard DeCaro. § 565.032(4) and (6), RSMo 1986.

stealing and assault. There was testimony that Basile had strangled his neighbor on one occasion and threatened to kill an ex-girlfriend's husband. Elizabeth DeCaro's mother and sister testified about the victim's life and how her loss impacted the family.

II.

Basile first argues that a series of statements made by the prosecuting attorney was improper. While no objection was made to some of the statements, he argues that the statements warranted sua sponte relief by the trial court under the plain error doctrine or, in the alternative, that counsel was ineffective in failing to object.

A. Guilt Phase Argument

1.

Prosecuting attorney Braun stated the following during closing argument of the guilt phase:

Mr. Basile is in the basement, most likely in this room, locked in.

About 11:40, you heard from Melanie, Jenny McKay comes by and drops off Courtney [one of the DeCaro children]. Courtney gets in the car with the dog and Mr. DeCaro drives off to pick Ricky up from school. In the meantime, the other two children come home and are in the house. In the house with their mother's killer.

....

It was either her or me and I wasn't going back to prison.

How does that relate? Well, DeCaro had him on the hook after he did the first one. He knew if DeCaro got divorced there was a chance, and I'm willing to bet that DeCaro told him, my wife's going to tell on us. You got to go through with this because you're going to go down if I get divorced. My wife knows about this and I told her you were in on it and you are going to go down if I get divorced. My wife knows about this and I told her you were in on it, and you are going to go down. And that's why the sentence makes sense.

....

He killed the mother of four children after he had been in the house with those children.

....

Why would he be driving around keeping the property for a while? He didn't know Melanie was coming there at eight o'clock that night. And after nine o'clock any phone calls to Richard DeCaro are coming from the family.

Basile alleges that the above arguments were impermissible because they were not supported by the record. The first three arguments were not objected to, and no claim is made that any of those arguments were preserved for appeal. Objection to the last comment was overruled as a reasonable inference from the evidence.

Basile's conviction will be reversed on plain error for improper argument only if he establishes that the comments had a decisive effect on the jury's determination. State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993). The evidence shows or permits an inference that Basile was sought out by Richard DeCaro to both steal vehicles and kill Elizabeth DeCaro, that Richard DeCaro picked Basile up the morning of the murder, that the dog was removed from the DeCaro home at about 11:40 a.m., that Basile did not have his own...