State v. Case

• Decision Date: 13 April 2004
• Docket Number: No. WD 61626.,WD 61626.
• Citation: 140 S.W.3d 80
• Parties: STATE of Missouri, Respondent, v. Byron CASE, Appellant.
• Court: Missouri Court of Appeals

140 S.W.3d 80

STATE of Missouri, Respondent, v. Byron CASE, Appellant.

No. WD 61626.

Missouri Court of Appeals, Western District.

April 13, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Circuit Court, Jackson County, Charles E. Atwell, J Sarah W. Patel, Kansas City, MO, for appellant.

Andrea K. Spillars, Jefferson City, MO, for respondent.

Before ELLIS, C.J., HAROLD L. LOWENSTEIN and HOWARD, JJ.

HAROLD L. LOWENSTEIN, Judge.

Byron C. Case appeals from his convictions of first-degree murder, § 565.020.1, RSMo. (1999),¹ and armed criminal action. § 571.015.1. He was sentenced to life without parole on the murder count and a concurrent life sentence for armed criminal action. He contends that there was insufficient evidence to convict him, since the testimony of one of the State's key witnesses was marred by contradictions and was uncorroborated. He also contends that the trial court violated the rules of evidence by allowing the State to admit into evidence certain pre-arrest statements (which the State argued were tacit admissions) and that by doing so, the trial court plainly violated his constitutional rights. This court affirms.²

FACTS

In the fall of 1997, Anastasia Witbols Feugen ("Anastasia") was shot and killed in Lincoln Cemetery, located between Independence and Kansas City. Her body was found on October 23, 1997, with a large gunshot wound to her face. Anastasia was shot with either a rifle, shotgun, or high-powered handgun fired less than six inches away from her face. If Anastasia's head were upright when she was shot, the angle of the gun would have been slightly upward. Anastasia was five feet, two inches tall.

Late in the evening of October 22, 1997, Anastasia had been riding in a car with Justin Bruton ("Justin"), her former fiance, who had had an on-again, off-again relationship with Anastasia and who had broken off their engagement in the summer of 1997; Justin's friend, the defendant, Byron C. Case ("Case"), who is five feet, eight inches tall; and Kelly Moffett (Kelly), Case's then-girlfriend. The day after Anastasia's body was found, Case and Kelly gave a statement to the police in which they said: On October 22, 1997, Justin, Kelly and Case picked Anastasia up at a Dairy Queen in Independence and drove to Washington Cemetery, which was across the street from Lincoln Cemetery. The four left Washington Cemetery after the groundskeeper signaled to the four that they had to leave. En route to Kansas City, the car stopped at the I-435 and Truman Road intersection and Anastasia jumped out, because she was upset with Justin. Anastasia had asked Justin why he didn't love her anymore, and Justin had said he didn't know. According to Case and Kelly's statement, that was the last time they had seen or heard from Anastasia.

The next day, Justin killed himself with a shotgun.

For a long while, Kelly and Case's version of events gelled. Kelly repeated her initial statement to the police on November 20 and December 10, 1997, and on August 22 and August 25, 1998. In July 1999, with his lawyer present and after being informally granted limited use immunity (the prosecutor agreed not to use Case's statement unless Case knowingly provided false information to the police), Case did the same.

However, in March 2000, three years after her original statement to the police, Kelly — an admitted crack addict and alcoholic who was living in crackhouses, having been kicked out of her parents home — changed her story. She called her mother from a crackhouse and said that she saw Justin kill Anastasia. Sometime later, she told her father that it was Case who had killed Anastasia. Then, while in drug rehabilitation, she told her counselor it was Justin. Confronted by her mother, who said, "But Kelly you told your dad that [Case] killed Anastasia," Kelly flip-flopped yet again, saying that Case had killed Anastasia.

Kelly eventually told the police, in September 2000, that Case was Anastasia's killer. She told the police that she had seen Case shoot and kill Anastasia at Lincoln Cemetery. Kelly made this statement to the police a few days after she learned that Case had moved to St. Louis and had attempted to end all contact with her, refusing to give her his new phone number and address.

At the urging of the police and after being granted transactional immunity pursuant to Section 491.205, Kelly agreed to phone Case and record her conversations with him. On June 25 and June 27, 2001, she did this, using equipment supplied by the police. In the June 5th conversation, which happened around 1:30 a.m., Kelly told Case, who was at his residence:

[The police have] called a bunch again. They called while I was in re-hab, they showed up out here. Yeah. I don't understand, like seriously, what all went on or whatever, and I seriously, I hate to say this, but why, seriously, why did you have to kill her? What was the whole fucking big deal? Could you explain that to me? Because I don't get it. Seriously. Justin's dead for no reason, she's dead for no reason. It's just all fucked up. And for some reason they're talking to me, because you won't talk. So I'm fucked. And it makes me look horrible because everybody already knows that I'm a fucking crack-head, that I'm a coke-head, that I'm an alcoholic and don't remember shit. And if I tried to talk to them, nothing's going to add up. So, I mean if you could seriously explain to me as to why you actually felt the need to kill her, then that would really help me feel better about the whole fucking thing. I mean, was there seriously any reason to all this?

Case responded by saying, "We shouldn't talk about this." Kelly said, "Why?" Case then repeated, "probably because we shouldn't talk about this."

In the June 7th conversation, Kelly told Case:

They've been calling me like every single day to come in, and I need to get the story straight and figure something out because they've literally been calling me every single day for the past week bugging me, like when can I come in, when can I come in, and if I can't come in out there, they'll come to me and all this stuff.

Case responded by saying, "I mean the only advice that I can give is start everything with I think, or the best I can remember is ... there."

Case was arrested and tried for murder in the first degree and armed criminal action. At trial, Case's responses were admitted, over defense counsel's objection, as tacit admissions of guilt. Kelly testified to the following: On the night of October 22, 1997, after Kelly got into Justin's car, Case and Justin told her that Case had agreed to kill Anastasia for Justin because Justin thought it would be "better, easier if she were gone." According to Kelly, Justin said that Case — and not Justin — would kill Anastasia because Justin didn't think he could do it, whereas Case, who had a "weird fascination with death," had always wanted to kill somebody. When they arrived at Lincoln Cemetery, Case and Kelly were sitting in the back seat, Case behind the driver's seat. Anastasia and Justin got out, to talk about their relationship. Kelly then asked Case "why on earth" Case was going to kill Anastasia. Case said, "We [meaning Justin and he] have been talking about it all day, and Justin asked me to do it. And I want to do it, so I'm going to do it." Case stepped out of the car, popped the trunk, and pulled out a long gun. Justin yelled at Case to stop. Case didn't. He put the gun on his shoulder, aimed at Anastasia, and fired, causing her to fall to the ground. Justin and Case got in the car, and drove off, later discarding the murder weapon in an industrial area near railroad tracks.

On cross-examination, Kelly admitted that Justin had been on LSD shortly before Anastasia was shot, that, in the past Justin had hatched some "odd plans about hurting people," including a robbery scheme and a scheme to blow up a church, and that two weeks before Anastasia was shot, Justin had been hearing voices. In addition to suggesting that Justin might have killed Anastasia, the defense counsel also argued that Anastasia was the victim of a "random act of violence from some unknown stranger" — the very words used by defense counsel in his opening statement. In his testimony, Case repeated, in substance, his earlier statements to the police. A mechanic who worked at a gas station located 100 feet from the Truman Road-I-435 intersection confirmed Case's story, testifying that the evening of October 22, 1997, he saw an attractive young woman, approximately five foot, six or seven inches tall, get out of a car at the intersection and walk in the direction of Lincoln Cemetery. The mechanic also testified that on either the 23rd or the 24th, he identified Anastasia as the girl in question after being shown two pictures (one of Anastasia) by the police.

The jury returned guilty verdicts on both counts. Case filed this appeal.

I.

Case argues that the trial court violated his right to fundamental fairness, as safeguarded by the Fifth and Fourteenth Amendment, by allowing the State to admit into evidence, as part of its case in chief, the telephone conversations recorded by Kelly and the written transcriptions thereof. This point has two prongs: First, he contends that his responses were not tacit admissions, thus rendering them inadmissible hearsay; second, even if they were tacit admissions, it was fundamentally unfair to allow the State to use his responses as substantive evidence of guilt.³ Review of the admissibility of evidence is for an abuse of discretion. State v. Barriner, 111 S.W.3d 396, 400 n. 4 (Mo. banc 2003).

A. TACIT ADMISSIONS

The admission of a party opponent is not hearsay. State v. Gilmore, 22 S.W.3d 712, 718 (Mo.App.1999).

A defendant makes a tacit admission of guilt when the defendant fails to respond to or significantly acquiesces in the import of an inculpatory...