State v. Coleman, WD

CourtCourt of Appeal of Missouri (US)
Citation660 S.W.2d 201
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Betty COLEMAN, Appellant. 34397.
Decision Date23 August 1983

Betty Coleman, pro se.

Karl L. Madden, Jr., Moberly, for appellant.

John Ashcroft, Atty. Gen., William K. Haas, Neil MacFarlane, Asst. Attys. Gen., Jefferson City, for respondent.

Before SOMERVILLE, C.J., Presiding, and TURNAGE, and MANFORD, JJ.


This is a direct appeal from a jury conviction for the offense of capital murder, in violation of § 565.001, RSMo 1978. The jury assessed punishment at life imprisonment without eligibility for parole until a minimum of 50 years is served. Judgment was entered in accord with the jury's verdict and the judgment is affirmed.

Jurisdiction is vested in this court by an amendment to the Missouri Constitution, Article V, § 3, effective December 1982. State v. Martin, 644 S.W.2d 359 (Mo.banc 1983).

Prior to setting forth the pertinent facts and considering the alleged errors, it is noted that the file on appeal contains no less than three appellant briefs. This case and the court file attendant thereto was ordered transferred to this court by the Missouri Supreme Court for disposition. Review of the file revealed an original appellant brief filed pro se dated September 13, 1982 with the Missouri Supreme Court. Under date of January 12, 1983, appellant filed with our court a document which she captioned, "Amendment To Pro Se, Brief and Argument." On January 24, 1983, counsel for appellant filed with our court an appellant's brief. On the same date (January 24, 1983) respondent filed with this court its brief.

At the time of oral argument, appellant (by counsel) moved this court by dual motion to expand the record on appeal and to correct the record on appeal. Following argument of these motions, both were denied. Appellant (by counsel) moved this court to include appellant's pro se brief and her "amendment" to her pro se brief. This motion was granted. The record and the court file failed to reveal whether respondent ever was apprised of the pro se brief and the "amendment", thus respondent was granted 15 days to file a responsive brief to the pro se brief and the "amendment" by order of this court dated June 14, 1983. Respondent filed its additional brief.

Review of all the briefs on file by appellant reveals certain duplication. For purposes of disposition of this appeal, the points presented by the three appellant briefs are addressed collectively without specific reference to any particular brief.

By elimination of certain duplication, it is determined that appellant presents seven points of error. In summary, appellant charges that the trial court erred: (1) in refusing to sustain appellant's motion to dismiss at the close of the state's case and sua sponte at the close of all the evidence, because the evidence was insufficient; (2) in failing to instruct the jury on murder, first degree; (3) in the submission of an instruction which failed to ascribe appellant's mental intent; and (4) by not dismissing the case at the close of the state's case, because the state failed to prove the corpus delicti. As her point (5), appellant charges that the trial court committed plain error when it failed to set aside the jury verdict because there was prejudicial deviation between the information and proof at trial. Appellant further charges (6) that the trial court committed plain error in its failure to properly follow MAI-CR2d 1.08(b). As her final point (7), appellant charges that the trial court committed plain error by not sustaining her motion for new trial because the state had suppressed certain evidence.

Appellant's challenge to the sufficiency of the evidence necessitates a detailed statement of the pertinent facts. The state produced thirty-one witnesses, but it is from the testimony of state's witness John Morgan that the basic facts surrounding the commission of this offense were related to the jury. It is from Morgan's testimony that the following facts are drawn, but where applicable, pertinent facts provided by other witnesses are interrelated and their source identified.

The record reveals that John Morgan and one Doyle Williams had been involved in numerous criminal acts in various areas of Missouri. Their criminal conduct included at least one death in addition to the victim herein, Kerry Brummett. Brummett knew of the criminal acts of Morgan and Williams and Brummett was to be a witness against Morgan. Appellant was the girlfriend of Williams. Morgan was granted immunity from all criminal charges in exchange for his testimony against appellant.

Morgan testified that he was told by Williams that appellant had agreed to make a date with Brummett the evening of October 9, 1980. Brummett was employed at a local pizza establishment. Another employee at the restaurant testified seeing appellant in the restaurant the evening of October 9, 1980, just prior to the 12:00 midnight closing time. Other witnesses testified that they saw Brummett and appellant during the early morning hours of October 10, 1980 in a restaurant in Jefferson City, Missouri.

Morgan testified that he, Williams, and appellant planned to kill Brummett. The plan provided that appellant would make a date with Brummett, meet him, and transport him to a predetermined location. Morgan and Williams would then kill Brummett.

Morgan testified that he met appellant and Williams at a local steakhouse in Jefferson City a little after 9:00 p.m. on October 9, 1980. The trio drove to appellant's trailer home in Brazito, Missouri where Williams and appellant changed clothes. During the trip, Williams asked appellant how the date with Brummett had gone, and she advised Williams and Morgan that she was to meet Brummett at 12:00 or 12:30. As the conversation continued, Williams told appellant that after she picked up Brummett, she was to bring him to her trailer and that is where he was to be killed. Appellant told Williams that she did not want Brummett at the trailer because she lived with another girl and she did not want the other girl to see anything like that happen. The discussion then turned to another possible location, and it was decided that appellant would deliver Brummett to a rural road in Callaway County.

After Williams and appellant changed clothes at the trailer, Williams asked appellant if there were any "concrete blocks or anything to weigh him [Brummett] down with." Appellant told Williams and Morgan that they would look around the trailer as she did not know. Some nylon rope was found. The three left the trailer. As the trio returned to Jefferson City, further discussion was held, during which Williams and Morgan told appellant that one of them would be on each side of the road. Morgan and Williams were to go to the road and wait, and appellant was to drive Brummett to the location.

As noted, other witnesses observed appellant with Brummett on the early morning of October 10, 1980 [about 1:00 a.m.] in a Jefferson City restaurant.

Appellant drove Brummett to the prearranged location, stopped the vehicle, and got out. As she got out of the vehicle, Morgan pulled Brummett from the vehicle. Appellant got back into the vehicle and started it, and then walked a short distance to Morgan's automobile, got in it, and drove off.

At this point, Morgan had Brummett on the ground. Williams came around the vehicle which appellant had driven to the scene and tried to place handcuffs on Brummett. Brummett was drawn up on his side and to get to Brummett's hands, Williams beat Brummett on the head with a pistol, kicked, and stomped on him. Morgan also beat on Brummett. Brummett was handcuffed. (Through another witness, the evidence established that Williams had borrowed the handcuffs.) Brummett's employee nametag was later retrieved from the ground at the location where appellant had driven him by law enforcement officers. Morgan and Williams placed Brummett in the trunk of the vehicle. The road upon which these events took place led to the Missouri river and the vehicle was driven to the river. When they arrived at the river, they observed some people camping near the river. They turned the vehicle around and took another road to the river. Morgan and Williams planned to dump Brummett in the river. Williams took Brummett from the trunk while Morgan retrieved the rope and an auto jack with which to weigh down Brummett's body. Williams and Brummett were standing on the river levee and Williams hit Brummett with his fist. This blow caused Brummett to go over "the first bank" of the levee. Brummett started to run and ran into the river. Williams was running right behind Brummett. Before Brummett went under the water, Williams hollered at Morgan to shoot Brummett. Morgan fired a shot over Brummett's head. Morgan and Williams departed for Tebbetts, Missouri.

The clothing worn by Morgan and Williams had Brummett's blood on them, and there was blood in the vehicle used to transport Brummett. Morgan and Williams changed clothes and placed them in a "dog food sack". They then drove the vehicle to Mokane, Missouri and washed the inside and trunk of the vehicle at a self-service car wash. They then returned to Tebbetts, Missouri to the trailer residence of one Roger Hazelett. The time was approximately 4:00 a.m. on October 10, 1980. Morgan slept until about 4:00 p.m. that afternoon. When he awoke, he saw appellant at the trailer. Morgan and Williams then burned their clothing which they had previously placed in the "dog food sack."

Through appellant's roommate's evidence, it was determined that the vehicle used to transport Brummett was owned by the roommate. Earlier in the day of October 9, 1980, appellant had arranged and traded her vehicle for the vehicle of her roommate.

Brummett's body...

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