State v. Coleman

• Decision Date: 14 December 1970
• Docket Number: No. 55226,55226
• Citation: 460 S.W.2d 719
• Parties: STATE of Missouri, Respondent, v. William COLEMAN, Appellant.
• Court: Missouri Supreme Court

Page 719

460 S.W.2d 719

STATE of Missouri, Respondent, v. William COLEMAN, Appellant.

No. 55226.

Supreme Court of Missouri, En Banc.

Dec. 14, 1970.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Terence C. Porter, Columbia, for appellant.

HOLMAN, Judge.

The information in this case charged defendant with felony-murder (first degree) in the commission of arson as a result of which Geraldine Settle was burned to death. See § 559.010. ¹ A trial resulted in a verdict of guilty and the death penalty was assessed. See § 559.030. Defendant has appealed.

On this appeal there is no contention that the evidence was insufficient to support the submission of the offense charged and hence it is not necessary for us to set out all of the sordid details of the tragic occurrence hereinafter described.

The event in question occurred in the Randolph Tavern located at 107 West Reed Street in Moberly, Missouri. There was substantial evidence from which the jury could reasonably have found that on February 16, 1968, shortly before four o'clock in the afternoon, defendant went to a filling station located a little more than a block from the tavern and borrowed a 5-gallon open bucket. He then purchased four gallons of gasoline which were pumped into the bucket and carried the bucket of gasoline to the tavern. It was a fairly warm day and the door of the tavern was open. He stepped inside and took two or three 'slings' of the bucket in a manner which threw the gasoline onto the east wall, a bowling machine in that area, and onto the floor of the tavern. He then stepped back, lit a match, and threw the match into the gasoline on the floor, and left the tavern. There were sixteen people in the tavern at that time. Almost immediately there was a slight explosion which blew the door shut and created a pressure inside the tavern which made it difficult to open the door. The four people closest to the door, however, were able to escape without serious injury, although two of them were substantially burned. They were Vivian McSparren and a baby she was holding, Virgil Hill, and Charles Buckler. The other twelve people in the tavern, including the bar tender, Geraldine Settle, were killed, the coroner testifying that their deaths resulted from suffocation from smoke inhalation and from burning. The bodies of eight of those twelve persons were found piled in front of a back door. Shortly after the four survivors escaped from the tavern there was a terrific explosion which blew out the front windows. After the fire was started, defendant went to the Pastime Tavern located across the street and asked the owner to take him to the police station. The owner, Edward Kempker, asked his wife to 'drop him off at the station as she was about to start on an errand at that time.' As defendant left to get in the car he said something to Mr. Kempker to the effect that 'I did that,' referring to the fire across the street. Defendant was taken to the police station a short distance away and surrendered to the chief of police.

The motive of the defendant was not entirely clear from the evidence. There were, however, several items of evidence that might indicate his motive. Defendant had been rather active on the day in question in looking for his wife from whom he was separated. A few hours before the fire defendant went to see Victor Rigler and made an agreement to buy a car from him which he would return for in a few days, saying that he wanted the car to leave town. In the discussion with Rigler he said, 'When I leave this town they are going to remember me. I am going to make history.' A short time later defendant asked Ordell Rodney to take him to Huntsville because he had been told his wife was there at Freeman's Bar. Defendant was unable to find his wife in Huntsville and after returning to Moberly, as he was leaving the car, he said to Mr. Rodney that maybe this would be the last time he would see him because the 'bastards were hiding his wife and that they would be sorry about it,' or words to that effect. Mrs. Kempker testified that as she was taking defendant to the police station he started to cry and said, 'I loved my wife, I loved my wife, I loved my wife'; that 'those crazy s.o.b.'s were hiding her, I always thought so, but I didn't know it until today.' There was also evidence that as a condition for obtaining a license to operate the Randolph Tavern the owner had been required by the District Liquor Inspector to refuse service to defendant, as well as certain other ex-convicts, and that defendant knew of that fact. The foregoing evidence would appear to warrant a reasonable conclusion that defendant may have started the fire either because he had been barred from service at the tavern or because he thought that the operators of the tavern were hiding his wife. It should be stated at this point, however, that the evidence indicated that the owner of the tavern, and many of the persons who were killed in the fire, seemed to have been friends of the defendant.

The defense in the case was that the fire was an accident. Defendant testified in the case. At the beginning of his testimony he detailed quite a number of convictions which resulted in his having been confined to penal institutions most of the time between 1946 and 1965. In regard to the events occurring on the day in question defendant testified that he had borrowed the car of Bobby Hess a few days before and while driving it the transmission had been torn out and he had parked it at the sale barn at the south edge of Moberly; that on the afternoon in question he had intended to find Bobby so that they could go to the sale barn and repair the car; that he went to the filling station and obtained the gasoline so that he could wash his tools and keep his hands clean while working on the car; that he walked on down to the Randolph Tavern looking for Bobby Hess; that he looked in the windows and couldn't see anything because the windows were steamed and that he walked into the tavern so that he could see who was in there; that at this point Vivian McSparren said, 'Say, Billy,' and that as he turned to look at her she was lighting a cigarette; that when she flipped the match it lit on his sleeve and ignited gasoline which had splashed on his sleeve, and that he then threw the open bucket (apparently in an involuntary effort to get in a position to put out the fire on his sleeve); that he turned the sleeve-wrong-side-out and ran out the door and across the street. On cross-examination defendant conceded that he knew there were filling stations located very near to the sale barn where the Hess car was parked so that it was not necessary to buy the gasoline at a downtown station.

Vivian McSparren testified that she had previously quit smoking, did not smoke during February 1968, and of course did not light any cigarette or match on the occasion in question. her testimony in that respect was corroborated by other witnesses.

The first point raised is that the trial court erred in failing to grant defendant a new trial because of the failure of Juror Vincent Sherwood to disclose on voir dire examination that prior to trial he had expressed an opinion as to the guilt of the defendant and the punishment to which he should be subjected. During the voir dire examination the court asked the following question: 'Have any of you formed or expressed an opinion as to the guilt or innocence of the defendant in this case, based on what you've heard or read about the case? Now, if you have, please stand up.' Mr. Sherwood did not respond. On individual examination the following appears: 'Mr. Sherwood: I knew Mr. Lowery (one of the victims) pretty well and his whole family. His wife was my wife's beauty operator at the time of his death. Mr. Porter: Mr. Sherwood, do you feel that connection or relationship with Mr. Lowery would affect your ability to sit as an impartial juror in this case? Mr. Sherwood: No, I don't think so. Mr. Porter: You feel that despite this relationship you would not be prejudiced in any way, either for or against either of the parties to this case? Mr. Sherwood: No.'

Mr. Sherwood, on the dates in question, was the proprietor of and worked in a barber shop in Moberly. As a part of his motion for new trial defendant attached the affidavit of James M. Lewis. It contained, in part, the following: 'Some time during the week beginning Monday, February 19, 1968 * * * I was in the Oak Barber Shop. * * * Vincent Sherwood was, during that week * * * working as a barber at the Shop. * * * The topic of conversation in Moberly, Missouri, was almost universally related to the tragic fire at the Randolph Hotel Tavern * * *. I distinctly remember Mr. Vincent Sherwood saying, referring to Bill Coleman, 'They oughtn't to even give a man like that a trial. * * * In substance he expressed a view that William Coleman should be disposed of by violence, and it was apparent that he had already made up his mind that William Coleman was guilty of the charge of murder. " Thereafter, the State filed the affidavit of Sherwood which stated, in part, that 'James M. Lewis, in his affidavit, attributes to me the statement, 'They oughtn't to even give a man like that a trial'; all I can say is that I do not have any independent recollection of saying any such a thing; I do not believe that I made the statement because the philosophy expressed in the statement is not a true and accurate statement of my present beliefs, the beliefs I held at the time of the Coleman trial, or my beliefs at any time during my life to which my memory extends; it is very possible that Mr. Lewis, or some other customer or visitor made statements with which I did not take exception, thereby giving rise to Mr. Lewis' inaccurate recollection or interpretation of my attitude. I further state * * * that * * * at the time I was asked questions by the judge and the lawyers to see...