State v. Cornman, 66444

• Citation: 695 S.W.2d 443
• Decision Date: 07 August 1985
• Docket Number: No. 66444,66444
• Parties: STATE of Missouri, Respondent, v. Chester Nathaniel CORNMAN, Defendant-Appellant.
• Court: United States State Supreme Court of Missouri

Page 443

695 S.W.2d 443

STATE of Missouri, Respondent, v. Chester Nathaniel CORNMAN, Defendant-Appellant.

No. 66444.

Supreme Court of Missouri En Banc.

Aug. 7, 1985.

Peter Sterling, Asst. Public Defender, Rolla, for defendant-appellant.

William L. Webster, Atty. Gen., Bruce Farmer, Gary Gardner, Asst. Attys. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Found guilty by a jury of conspiracy to commit murder, § 564.016, ¹ (Count I), and of assault in the first degree, § 565.050, (Count II), defendant's punishment was assessed at 10 years for the conspiracy and 30 years for the assault with terms to run consecutively. After affirmance in the Southern District transfer was granted and we determine the cause as though on original appeal. Mo. Const., art. V, § 10.

Defendant was charged in Count I with conspiracy to commit murder by agreeing with others to kill Harrel D. "Red" Sims, business manager and secretary-treasurer of Laborers' Local 840 at Rolla. Count II charged assault for the shooting of Davis R. Haas, a neighbor of Sims. It is the State's theory that defendant, accompanied by a fellow conspirator, Jesse James Morgan, shot Haas, mistaking him for Sims.

Defendant insists that § 564.016.7 ² bars conviction and sentencing on both counts and that such conviction constitutes double jeopardy in violation of the Fifth Amendment to the United States Constitution. Additionally, defendant assigns several instructional errors, and complains of the admission of certain out-of-court statements by Morgan and another alleged conspirator, Michael Lewis Carney.

I.

Haas was shot October 28, 1981, near his home in rural Phelps County. The evidence, viewed in the light most favorable to the verdicts, State v. Wood, 596 S.W.2d 394, 400 (Mo. banc), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980), demonstrates that about a week before the shooting Morgan, with defendant present, accepted Carney's offer of $5,000 to kill Red Sims "to take over the Laborers Union." At trial, the State's chief witness, William Stoney, testified that defendant said nothing when the deal was struck. However, other evidence indicated that somewhat later and about two days before the shooting, defendant and Morgan broke into a Mountain View, Missouri home and took a semiautomatic rifle. On the day before the shooting, defendant went to the Laborers' Union Hall in Rolla asking for Sims and learned from the secretary that Sims probably would not be there that day. While defendant was in the Union Hall making this inquiry, a person was observed waiting for him outside in a green Torino. Morgan and defendant had escaped from jail earlier that year and in early October, using an alias, Morgan had purchased a green 1973 Ford 2-door Gran Torino automobile. Defendant was with Morgan when he purchased the car and the twosome during the period following their escape from jail were known to have driven this vehicle while living with an ex-convict, Steven McGowan.

On the morning of the shooting, a dark green Gran Torino was seen on the right side of Spring Hill Road, facing Highway 72, outside Rolla. Identified by a passing motorist, Morgan was seen at the rear of the vehicle "as if getting something out of the trunk."

When Haas, driving a white 1981 Chevrolet pickup, reached Highway 72 from an intersecting highway that fateful morning he stopped and noticed a green Torino facing him across the highway on Spring Hill Road. Starting across the highway Haas heard a shot and was struck by glass fragments on his face. Bleeding from his mouth and neck Haas was struck in the chest by a second shot. He managed to drive across the highway and put his truck in "park." As he did so two more shots came through the windshield, blowing out the back window. He opened the passenger side door in time to see the Torino "fishtailing and leaving the scene." Haas struggled from the truck and saw Sims get out of his pickup and come across the highway. He told Sims he had been shot and then collapsed.

Sims, whose home is "straight across" county road 163 from Haas' home, left his home that morning, driving a white 1979 Ford pickup. Heading toward Highway 72, he saw Haas' pickup about 100 to 150 yards ahead, also traveling toward Highway 72. Sims, who saw Haas stop after crossing the intersection, testified that Haas left his pickup and "started staggering and looked up and seen me and hollered at me." Haas, whose lung collapsed, remained hospitalized 11 days and absent "heroic measures" would have died.

The Missouri State Highway Patrol lifted Morgan's thumbprint from the abandoned Torino and thereafter entered an agreement with Stoney to transmit a conversation with Carney to the Patrol via a concealed body microphone and transmitter. The recorded conversation revealed that Carney asked Stoney to stay away for a month and the two of them agreed to say they had never talked to defendant and did not know him. In this connection Stoney and Carney seemed to know that defendant, when arrested, had expressed concern to the police that his sister might be implicated and these men were apparently apprehensive as to what he might say. Carney stated "it's got to be finished."

Defendant complains that the trial court erred in admitting into evidence (1) the recorded Stoney-Carney conversation, (2) Stoney's testimony regarding the conversation at which Carney offered $5,000 to kill Sims, and (3) testimony by McGowan regarding a conversation between himself and Morgan during which Morgan said that defendant had done the shooting.

Defendant has preserved nothing for appellate review regarding McGowan's testimony or Stoney's rendition of the conversation during which Carney offered $5,000 for the shooting. Because no objection was made during trial regarding these hearsay statements, the point is denied. State v. Griffin, 662 S.W.2d 854, 859 (Mo. banc 1983); State v. Franco, 544 S.W.2d 533, 537 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

Defendant argues that the tape-recorded Stoney-Carney conversation is inadmissible because there was no independent proof that he was involved in the conspiracy and, even if such conspiracy existed, it had terminated by the time of that conversation. We agree that before a hearsay statement of one conspirator may be introduced in evidence against a coconspirator, there must be a showing, by evidence independent of the statement, of the existence of the conspiracy. Glover v. State, 528 S.W.2d 507, 509 (Mo.App.1975). However, when a conspiracy has been independently shown, statements or declarations of a conspirator, made in the furtherance of the object of such unlawful combination, are admissible against another conspirator not present when such statements or declarations were made. State v. Garton, 371 S.W.2d 283, 287-88 (Mo.1963); State v. McCollum, 598 S.W.2d 198, 200 (Mo.App.1980). The evidence required to show the existence of a conspiracy for the purpose of admitting into evidence a statement made by a coconspirator differs from the evidence required to convict someone of the crime of conspiracy. The former requires only a showing of an agreement between the defendant and the declarant and a statement in furtherance of their scheme, while the latter requires proof of an overt act performed by a conspirator in pursuance of the conspiracy. State v. Fuhr, 660 S.W.2d 443, 448 (Mo.App.1983).

The only references to defendant during the taped conversation that are arguably incriminatory were made by Carney. ³ In our opinion, there was sufficient evidence, independent of what Carney said, to support a finding that there was a conspiracy to kill Sims, and that defendant, Morgan and Carney were three of the conspirators. Such evidence includes the following:

Defendant and Morgan escaped the St. Francois County jail together, arrived together at McGowan's house while at large, and bought the Torino together. Defendant was present when Morgan said he would accept Carney's offer of $5,000 to kill Sims. Defendant was with Morgan when Stoney saw a rifle with a scope in the trunk of their car. It is inferable that this was the rifle that shot Haas, which was stolen before the shooting. Approximately 24 hours before the shooting, when defendant went to the Union Hall seeking Sims, Morgan's Torino was outside with "someone" in the driver's seat and the motor running. Defendant and Morgan left McGowan's house the evening of the date Haas was shot, never to return. On November 10, 1981, when defendant was "booked," he carried two identification cards bearing the name used by Morgan in buying the Torino. During booking, defendant asked, "[w]hat would it take to get the girls out of this?" Later, in response to a comment that he had gotten himself into trouble and had not been paid, defendant remarked, "[w]hat makes you think I didn't get paid?" We reject defendant's argument that there was no independent proof that he conspired with others to kill Sims.

The second element of the assignment of error is that even if there were a conspiracy to kill Sims, it terminated before the taped conversation occurred.

The 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); State v. Smith, 631 S.W.2d at 360.

Here, the crime that the conspirators meant to commit--the murder of Sims--did not occur. Comments by Carney during the Stoney-Carney conversation indicated he still intended...