State v. Bisher, 28158.

• Decision Date: 28 May 2008
• Docket Number: No. 28158.,28158.
• Parties: STATE of Missouri, Plaintiff-Respondent v. Dennis R. BISHER, Defendant-Appellant.
• Court: Missouri Court of Appeals

255 S.W.3d 29

STATE of Missouri, Plaintiff-Respondent v. Dennis R. BISHER, Defendant-Appellant.

No. 28158.

Missouri Court of Appeals, Southern District, Division One.

May 28, 2008.

William J. Swift, Asst. Public Defender, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JOHN E. PARRISH, Presiding Judge.

Dennis R. Bisher (defendant) was convicted, following a jury trial, of murder in the first degree, § 565.020, and armed criminal action, § 571.015.¹ He was charged, convicted, and sentenced as a prior offender. See § 558.016. This court affirms.

"For purposes of appellate review, evidence that supports the verdict is taken as true, together with all reasonable inferences favorable to the verdict. Evidence to the contrary is disregarded." State v. Scott, 78 S.W.3d 806, 808 (Mo.App.2002).

Defendant moved into the residence of William and Naomi Nance in Shell Knob, Missouri, in May 2005. Defendant's girlfriend, Etta Jane Harper, also lived there.

On July 3, 2005, defendant arrived at his aunt's house in Matthews, Missouri. He was driving a Ford Ranger truck owned by Etta Jane Harper. He told his aunt that he was en route to East Prairie, Missouri, to visit his mother. He had mud on his pants that he said had come from a dairy farm where he stopped before arriving at his aunt's house. He gave his aunt a blue tarp and asked her to throw it away.

Defendant called his aunt the day after his visit. He told her he was going to get rid of the truck he had been driving; that he was going to catch a bus and go to Mexico.

During the early morning hours of July 4, 2005, a 2000 Lincoln Town Car owned by Naomi Nance was found alongside Highway 39 in Barry County about 13 miles from the Nance residence. It appeared to have left the highway, struck some trees, and come to rest in a grassy area alongside the road. The vehicle had burned. A can of lighter fluid was found in the burn area near the vehicle. There was a hammer in the back seat. A Lorcin .380 semi-automatic pistol and holster were found near the car.

Naomi Nance and Etta Jane Harper went to the Barry County Sheriff's office the morning of July 5. After talking to the women, Sheriff Mick Epperly located the Lincoln automobile at a salvage yard. Later, Sheriff Epperly went to the area along Highway 39 where the car had been found, then to the Nance residence at Shell Knob. Naomi Nance had consented to a search of her car and residence.

When he arrived at the Nance residence, Sheriff Epperly opened a door and looked inside. He explained:

When I opened the door, I could tell the residence had been badly burnt. Tremendous amount of heat still coming from the inside of the house. The ceiling fan was on, so I knew the electricity was still on, and we backed out of the residence and shut the electricity off.

The sheriff was concerned that a victim or suspect might be in the house. After the electricity had been shut off, he entered the residence and walked through it. He noticed a lot of soot in walking through the house. He saw that the carpet had been burned "like someone had taken some accelerator and poured on the carpet to burn it."

Two pairs of pajamas were in a trash can inside the residence. One pair of pajamas was pink. The other consisted of a T-shirt that was described as "Café '55—like the car '55—Chevy '55 T-shirt" with blue bottoms. Both pajama shirts were blood-stained. Testing revealed that the blood on both pairs of pajamas indicated the presence of DNA consistent with that of William Nance.

A criminal investigator from the Missouri State Highway Patrol, Sgt. Roger Renken, testified about the blood-stained pajamas. His specialized training included crime scene investigation and blood stain pattern analysis. When he was initially contacted and asked to assist in the investigation, Sgt. Renken was told that two women had contacted the sheriff's office and reported that one of the women's husbands had been murdered. Sgt. Renken began his investigation July 5.

Sgt. Renken was asked the following questions and gave the following answers regarding the blood stains on the two pairs of pajamas.

Q. On [the Cafe '55 shirt], what kind of display was on that?

A. It was a — blood stains consistent with high velocity — an impact stain.

Q. And if it's consistent with high velocity, does that mean a wearer would be in close proximity of an individual who has received a blood — a gunshot, generally speaking?

A. That would be accurate to say.

Q. As to the other one — I believe you said it was pink?

A. Pink, yes.

Q. As to the pink shirt, what kind of staining are you seeing there?

A. It looked more like transfer stains, and very little.

Sgt. Renken also told of finding ".380 auto ammunition, PMC brand" in a drawer in a piece of furniture in the dining room area of the house. He testified that it was the type of ammunition that could be used in the Lorcin .380 handgun. He also testified that blood droplets had been found on a front porch and a back deck at the residence; that large amounts of blood were in the bedroom. DNA testing revealed that blood at the residence and blood on the Lorcin .380 handgun that was recovered where the Lincoln automobile had burned were consistent with the DNA profile for William Nance.

Barry County Sheriff's personnel issued a notice that it was looking for defendant, Etta Jane Harper's pickup, and the body of William Nance. The sheriff's department received information the afternoon of July 5 that William Nance's body had been found by fishermen in a wooded area near the Mississippi River in Scott County, Missouri. Evidence near the location where the body was found indicated that a vehicle had driven through a tree line; that a body had been dragged from the vehicle. Tire impressions in the area were consistent with the tires on the Ford Ranger that defendant had been driving.

Defendant was arrested the night of July 5 in the Gray Line bus lot in Hollister, Missouri. He was alone inside the Ford Ranger on the driver's side. The truck was searched, looking for a weapon. No weapon was found. During the course of the search, the arresting officer learned that the truck might be a crime scene. He terminated the search, locked the truck, and called a tow truck. The truck was taken to the Hollister, Missouri, police station where it was secured.

An autopsy revealed that William Nance died as a result of a gunshot wound to the head. In addition to a bullet hole in the skull, the body had three lacerations on the right side of the head caused by a blunt instrument and injuries to the left hand and the right hand.

Defendant was interviewed by law enforcement officers on July 6 and 7, 2005. Missouri Highway Patrol Sgt. Larry Wolters testified about the July 6 interview. Chief Deputy David Bowman of the Barry County Sheriff's Department testified about the July 7 interview.

Defendant told conflicting stories about when he last saw William Nance. He initially said he last saw Nance the evening of July 3, 2005, at a lake where he claimed he had helped Nance put a boat in the water. Defendant said he left about 8:00 p.m. in Harper's (his girlfriend's) truck to visit relatives in East Prairie, Missouri. He later said the last time he saw Nance was at Nance's house; that Nance was on the front porch at the house.

Sgt. Wolters said defendant was asked if he killed Nance; that defendant answered, "I didn't think I did." However, at some point in the interview, defendant said he and Nance had fought over a gun; that in the course of the struggle, the gun discharged. Defendant demonstrated how the gun was pointed when it discharged. He lifted his hands toward his head in gesturing how the gun was pointed when it fired.

Sgt. Wolters was asked the following questions and gave the following answers about what happened after the gun fired.

"Q. . . . . What did [defendant] first describe as happening after the shooting?

A. He indicated to us that one of the first things he did after his [sic] had happened was try to cut the carpet and clean up the — the carpet.

Q. What about — what about Mr. Nance, did he say what he did with the body at that point?

A. He indicated that he had drug Mr. Nance's body across the carpet and taken him outside into the trunk of the vehicle.

Q. What kind of vehicle?

A. I believe it was described as a Lincoln. I know from the investigation as to what the car was, but I recall [sic] right now if he said exactly at that point in time. I think he did.

Q. All right. Did he make any comment as to his intentions as to the vehicle?

A. He did.

Q. What did he say?

A. His intention or his thought was to take the vehicle somewhere and tear it up; however, he indicated that for some reason he was unable to do that as it turned out.

Q. Was a crash mentioned at some point, . . . ."

A. Yes.

Defendant said he crashed the car in which he was transporting Nance's body. He got a ride back to the Nance residence and returned to the crash site in Harper's truck. He said he rolled the body from the trunk of the car into the bed of the truck. He covered it with a blue tarp and eventually transported the body to Southeast Missouri where it was dumped.

Defendant asserts two points on appeal. Both are directed to trial court rulings on evidentiary issues. This court's review of the admission or exclusion of evidence is undertaken on the basis that evidentiary rulings are matters in which the trial court has broad discretion; that those rulings will not be disturbed on appeal absent abuse of discretion. State v. Robinson, 90 S.W.3d 547, 550 (Mo.App. 2002). "Furthermore, in matters involving the admission of evidence, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Harrison, 24 S.W.3d 215, 218 (Mo. App.2000).

Point I...