State v. Clay

Decision Date08 September 1998
Docket NumberNo. 78373,78373
PartiesSTATE of Missouri, Respondent, v. Richard CLAY, Appellant.
CourtMissouri Supreme Court

Janet M. Thompson, Asst. Public Defender, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.

BENTON, Chief Justice.

A jury convicted appellant Richard D. Clay of murder in the first degree and assessed the punishment as death, which the circuit court imposed. Appellant filed a motion for post-conviction relief under Rule 29.15, which the motion court overruled. In a consolidated appeal to this Court, appellant raises fourteen points of error. Mo. Const. art. V, sec. 3. This Court affirms.

I. Facts

This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Appellant's close friend Charles Sanders had an affair with Stacy Martindale. In February 1994, Martindale asked Sanders to help her kill her husband. She was unhappy in her marriage and also was the primary beneficiary of her husband's life insurance policy in the face amount of $100,000. During the spring of 1994, every time they met, Sanders and Martindale discussed various plans to kill her husband. Sanders confided in appellant, who told him that he would be "crazy" to help her with the plan.

Sanders borrowed a gun from another friend and kept it in his car. He bought ammunition and he and Martindale practiced firing the weapon. At that time appellant was unemployed and did not own a car. He often borrowed Sanders' car, twice took the gun out of the car without permission, and left the gun at a friend's house. He testified that he removed the gun so that he would not be caught with it while driving Sanders' car.

Martindale separated from her husband about April 28, 1994. Martindale offered Sanders $10,000 to kill her husband, and in April gave him a check for $4996.36 as a "down payment." A few weeks later, Sanders returned the check to Martindale, telling her that he could not execute the act they had been discussing. A carbon copy of the check was later found.

On May 19, 1994, Martindale met Sanders at Sanders' place of employment. Appellant waited inside to give them privacy. Outside, Martindale pressured Sanders to kill her husband. When Sanders refused, Martindale told him that she was going to ask appellant to do it. Then she immediately rode around alone with appellant.

Leaving Martindale, appellant went to a bar, to a restaurant, and then to a trailer. Appellant left the trailer carrying a black zippered bag. At 9:45 p.m., Martindale picked up the appellant, who still had the black bag, and drove him to her home.

In the meantime, her estranged husband had taken her two boys to a baseball game. He brought the boys back to her house after 10 p.m. Martindale invited him to spend the night. He went into her bedroom, sat down on a loveseat, and took off his shoes and socks. While he was sitting there, appellant came out of the bedroom closet where he was hiding and shot him four times. The victim bled to death. Martindale ran next door, awakening the neighbors with her screams. A neighbor came over to the house with her to find the two boys and discovered the victim bleeding from gunshot wounds, slumped over on the loveseat in the bedroom.

Moments later, a police officer saw a red Camaro with sparks flying beneath it. Because the driver continued to drive despite the sparks, the officer believed the driver was drunk. He pursued the Camaro, and when it accelerated, the officer turned on his red lights. The officer caught up to the Camaro on a gravel road where it was stopped, both doors opened, with the engine running. The officer requested backup and turned off the ignition of the Camaro. A shoeprint, later found to match the appellant's, was found outside the passenger door. When the other officers arrived, they began a search, sweeping the area from the vehicle to a swamp. An officer found a dry, live .380 caliber Remington-and-Peters cartridge that matched those found at the crime scene in dew-covered grass. The search lasted through the night. The next day several officers were sitting on a levee when one saw the appellant run into the woods. The appellant was carrying a black bag. As the officers closed in on him, he emptied the bag and threw it behind him. Officers continued the search through the swamp until one saw appellant's face as he surfaced to breathe. When the officers reached him, they arrested him. The police never found the murder weapon.

II. Direct Appeal
A. Trial Court Rulings

First, appellant alleges erroneous rulings by the trial court at many points throughout the proceedings; however, these alleged errors are all either unpreserved, harmless beyond a reasonable doubt, or not error. During voir dire, the judge told the jury panel that this trial would not proceed like the trial "going on in California at the moment," apparently referring to the O.J. Simpson case. Appellant argues that the judge's comment created potential bias and caprice in the jury's deliberations. No objection was made at trial to this passing comment by the judge, and this Court will not review this unpreserved claim.

Further, appellant alleges that the trial court erred in sustaining the State's objections to several of defense counsel's questions to appellant. Specifically appellant argues that the trial court should have permitted him to explain details of a conversation that he had with Martindale in her car about drugs. Appellant did not make an offer of proof nor did his defense counsel preserve the issue for appeal in the motion for a new trial; thus, this Court cannot review that claim. State v. Edwards, 918 S.W.2d 841, 845 (Mo.App. W.D.1996); State v. Johnson, 858 S.W.2d 254, 256 (Mo.App. E.D.1993).

Appellant raises issues relating to erroneous evidentiary rulings by the trial court during both the guilt and penalty phases of the trial. However, these rulings were either harmless error or not error at all. During guilt-phase closing argument, the prosecutor referred to a change of venue and made an incorrect statement describing testimony. Defense counsel objected to these statements, but the trial court erroneously overruled those objections. The prosecutor withdrew the statement about the change of venue, and the defense asked for no further relief. The prosecutor's withdrawing the statement was sufficient relief. The State also told the jury that Officer McFerren, the officer who pursued the Camaro, saw only one person in the car. In fact, he had testified on cross that he did not know how many people were in the car. However, this comment by the State was made in passing, was not emphasized, and did not affect the outcome of the trial. Both of these errors are harmless beyond a reasonable doubt. State v. Dexter, 954 S.W.2d 332, 340 n. 1 (Mo. banc 1997).

The other allegations of error by appellant lack merit. Appellant argues that the trial court erred in allowing hearsay testimony offered by the State, personalizing statements by the State, and improper evidence presented by the State during the penalty phase. Martindale, tried separately, did not testify at appellant's trial, but the State elicited testimony about certain statements Martindale made: that she concocted various scenarios to kill her husband and suggested them to Sanders, that she intended to talk to appellant before the killing occurred, that after the murder she saw her car pulling out of the driveway, and that after the murder she yelled "they shot him" and "they took my car" and "I can't believe they done it." Appellant argues that these statements are inadmissible hearsay. However, such statements are admissible under the co-conspirator exception to the hearsay rule.

Evidence is admissible under that exception if there is preliminary evidence of an agreement between the defendant and the declarant to engage in an unlawful act. State v. Cornman, 695 S.W.2d 443, 446 (Mo. banc 1985). Appellant argues that the State did not establish the existence of a conspiracy between appellant and Martindale by a preponderance of the evidence independently of her statements. See id. (holding that before a purported co-conspirator's hearsay statements can be introduced against a defendant, there must be a showing, by evidence independent of the statement, that the conspiracy exists and that the defendant is part of that conspiracy). The State is not required to present conclusive evidence that a conspiracy existed. State v. Pizzella, 723 S.W.2d 384, 388 (Mo. banc 1987). Indeed, the appearance of "acting in concert" can provide sufficient circumstantial evidence of a conspiracy to invoke the co-conspirator exception to the hearsay rule. State v. Williams, 897 S.W.2d 631, 635 (Mo.App.1995); State v. Peters, 123 S.W.2d 34, 38 (Mo.1938).

Once the existence of a conspiracy is independently established, witnesses may testify to statements of a co-conspirator that show the furtherance of the conspiracy. State v. Isa, 850 S.W.2d 876, 893 (Mo. banc 1993). Furthermore, "[t]he fact that declarations are made by a conspirator after the crime has been consummated does not necessarily make such declarations inadmissible." State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 716 (1944); State v. Smith, 631 S.W.2d 353, 360 (Mo.App.1982). "If a conspiracy continues for a purpose such as concealing the crime or to prevent or defeat prosecution, the admissions of one coconspirator are admissible against the other, even if made after the completion of the crime which had been the objective of the conspiracy." State v. Priesmeyer, 327 Mo. 335, 37 S.W.2d 425, 427 (1931); Smith, 631 S.W.2d at 360.

The State argues that it proved that appellant was acting in concert with Martindale to murder her husband....

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