State v. Clevenger

• Decision Date: 06 July 1987
• Docket Number: No. 14491,14491
• Citation: 733 S.W.2d 782
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Roxie Jean CLEVENGER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 782

733 S.W.2d 782

STATE of Missouri, Plaintiff-Respondent, v. Roxie Jean CLEVENGER, Defendant-Appellant.

No. 14491.

Missouri Court of Appeals,

Southern District,

Division One.

July 6, 1987.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 28, 1987.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Robert E. Stemmons, Stemmons & Stemmons, Mt. Vernon, for defendant-appellant.

GREENE, Presiding Judge.

Defendant, Roxie Jean Clevenger, appeals from her jury conviction of murder in the first degree, § 565.020, ¹ and subsequent sentence of life imprisonment without eligibility for probation and parole. We reverse and remand.

The state's theory of the case was that Ms. Clevenger, the step daughter of Cleo Talley and the mother of Talley's son, Murl Payne, conspired with Murl and others to have Talley killed, and that Talley was shot and killed by Kenny Brown in furtherance of the conspiracy. The alleged motive for the killing was that Talley was going to get married, in which case he would change his will to the detriment of Ms. Clevenger, who was also the beneficiary of a life insurance policy insuring Talley's life.

Ms. Clevenger lived in Aurora, Missouri. Murl Payne, Kenny Brown, and the other alleged co-conspirators, who were Murl Payne's son, "Bubba," and Teddy Albert, lived in Illinois.

After Talley's death, and as a part of an ongoing police investigation, Murl Payne was taken into custody in the state of Illinois, and was questioned, on at least four occasions, by Sergeant Leland Keith of the Mason County, Illinois Sheriff's Department. While in custody, Payne made oral statements to Keith implicating Ms. Clevenger and, on February 16, 1985, gave a written confession and statement concerning events preceding the killing of Talley, which statement implicated Ms. Clevenger. At trial, Murl did not testify, but Sergeant Keith did. Keith testified that he had been present when Murl made statements regarding Talley's murder. Officer Keith also related, from notes he had taken while talking with Murl, the substance of telephone calls allegedly from Roxie Clevenger to Murl. He also had receipts for various amounts of money which Roxie had wired to Murl and explanations for what the money was to be used for in furtherance of the conspiracy. The officer was allowed to read to the jury a multipage statement given by Murl implicating Ms. Clevenger as the instigator of the murder.

In her defense, Ms. Clevenger denied having anything to do with the murder, and testified that the money she had sent Murl was for the purchase of a house for her in Illinois, her home in Aurora having burned.

On appeal Ms. Clevenger alleges trial court error in admitting into evidence out-of-court oral statements made by Murl Payne to Sergeant Keith that implicated her in the murder conspiracy, and the admission into evidence of Payne's written confession in which he also implicated Ms. Clevenger. The argument on these points is that the statements and confession were prejudicial hearsay, and that the admission of such evidence denied to Ms. Clevenger her constitutional right to confront and cross-examine her accusers.

The state contends the points were not properly preserved for appellate review, as no proper objection was made to the oral statements and written confession at time of trial, and were not raised in the motion for new trial.

In her brief, Ms. Clevenger contends that proper objections were made at trial during bench conferences, but, for some reason, were not transcribed by the court reporter. In a separate pleading, Ms. Clevenger has objected to the transcript as incomplete, and has asked us to take judicial notice of the difficulties she had in obtaining a copy of the trial transcript at all. We take such notice.

The record reflects that there was a fourteen minute bench conference regarding trial counsel's objections to the introduction into evidence of the written confession of Murl Payne, which is categorized in the transcript by the notation "(outside the hearing and presence of the jury)" or/and "(conference off record)." Appellate counsel contends that it was during this period that trial counsel objected to the admissibility of the exhibit on the ground that Murl Payne was not present at trial and that the state had made no showing that Payne was unavailable as a witness.

It is significant that the state has not contested such assertions in its brief filed here. We further note that the transcript was not prepared and filed here until September 26, 1986, which was over a year after the time of trial. This court had given the court reporter at least five extensions of time to prepare the transcript, and finally, on October 3, 1986, the reporter was held in contempt of court for failing to timely prepare and file an accurate transcript. We also note that the transcript has been supplemented by an affidavit of defendant's trial counsel, contending that he raised the objections to the statements of Murl Payne in a pretrial hearing and also at time of trial, and that such objections were overruled, but not recorded by the court reporter. This affidavit has not been contested by the state.

Based upon these facts, we would be derelict in our duty if we did not consider the points relied on concerning the admissibility of the written statement of Murl Payne and Sergeant Keith's testimony concerning what Payne told him. Even if we were to hold that Clevenger's trial counsel did not properly preserve the points relied on here, the question of whether an accurate record was made, and the constitutional magnitude of the questions raised, mandates that we review for plain error to determine whether manifest injustice resulted from the alleged trial court errors. Rule 30.20; State v. Harris, 670 S.W.2d 526, 528 (Mo.App.1984). We hold that it did and, therefore, reverse and remand.

Since Murl Payne did not testify as a state's witness, the in-court testimony by Sergeant Keith as to what Payne had told him implicating Roxie Clevenger was obviously hearsay, because the testimony was offered to prove the matter asserted, resting for its value on the credibility of the out-of-court declarant. State v. Harris, 620 S.W.2d 349, 355 (Mo.1981). As such, it was inadmissible unless the out-of-court statements of Payne qualify as evidence under an exception to the hearsay rule.

The state contends that Payne's oral and written statements are so qualified because they were declarations of a co-conspirator. The state concedes that generally out-of-court statements made by a co-conspirator after the termination of the conspiracy are inadmissible against the other conspirators, State v. Tate, 658 S.W.2d 940, 946 (Mo.App.1983), but contends that at the time Payne made the statements to Keith, the conspiracy was still continuing for the purpose of concealing the crime of killing Talley, and to show that a co-conspirator was in possession of the fruits of the crime, citing State v. Cornman, 695 S.W.2d 443 (Mo. banc 1985), and State v. Ronimous, 319 S.W.2d 565 (Mo.1959), as authority for its position. The state's reliance on these cases to support its position on the issue at hand is misplaced.

It is true that when a conspiracy continues for any purpose, such as the concealing of a crime, or taking measures to defeat prosecution, the declarations of one co-conspirator are admissible against the other, even if made after the completion of the crime which had been the objective of those conspiring. State v. Smith, 631 S.W.2d 353, 360 (Mo.App.1982). However, the state has not specified in its brief where any of the details of Payne's statements fit in the categories mentioned in Smith or any of the cases cited in support of its position.

In State v. Ronimous, supra, the written statement of defendant's accomplice Deprair, implicating Ronimous in two burglaries, was admitted into evidence after Deprair had testified as a state's witness, in which testimony he repudiated his prior written statement and said that he, and not Ronimous, had committed the burglaries. The Supreme Court said that since the written statement concerned hiding the loot, including money taken in the burglaries, and was made at the time when efforts were being made to conceal the fruits of the crime, that such evidence was admissible.

No such evidence was presented in this case, and there is nothing in the record to indicate that any attempts to conceal a weapon, or anything else to do with the killing of Talley, were being made at the time Payne made his statements to Keith.

In State v. Cornman, supra, the defendant was convicted of conspiring to murder Harrel Sims. The murder attempt backfired when Cornman, accompanied by a fellow conspirator, Jesse Morgan, shot Sims' neighbor, Davis Haas, by mistake, thinking he was Sims. The evidence was that about a week before the shooting, Morgan and Cornman met with Carney and accepted his offer of $5,000 to kill Sims. The state's chief witness at trial, William Stoney, was present during that meeting. Later, after the shooting, and during interrogation by members of the Missouri State Highway Patrol, Stoney agreed to transmit to the patrol a conversation with Carney via a concealed body microphone and transmitter. During the conversation that followed, Carney and Stoney agreed to say they did not know Cornman, had never talked to him, and that Carney and Stoney were apprehensive as to what Cornman might say if interrogated. In answer to the contention that, even if there was a conspiracy to kill Sims it had terminated before the taped conversation occurred, the Supreme Court said that since the principal subject of the taped conversation was to conceal the conspiracy, and elude prosecution, the trial court did not err in receiving the taped conversation in evidence.

Here, there was nothing in Payne's statements to Keith that even...