State v. Dayringer, 15294

• Decision Date: 26 July 1988
• Docket Number: No. 15294,15294
• Citation: 755 S.W.2d 698
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph L. DAYRINGER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 698

755 S.W.2d 698

STATE of Missouri, Plaintiff-Respondent, v. Joseph L. DAYRINGER, Defendant-Appellant.

No. 15294.

Missouri Court of Appeals,

Southern District,

Division One.

July 26, 1988.

William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Melinda K. Pendergraph, Columbia, for defendant-appellant.

GREENE, Presiding Judge.

Joseph L. Dayringer was charged by information with the class A felony of murder in the first degree, § 565.020.1. ¹ The information alleged that on April 10, 1986, in Jasper County, Missouri, Dayringer, after deliberation, knowingly killed Joyce Holland by stabbing her. Dayringer was 15 years old at the time of the killing, but, after a juvenile court hearing, had been certified for trial as an adult. After trial by jury, Dayringer was found guilty as charged, and was thereafter sentenced to life imprisonment without eligibility for probation or parole as punishment for the crime.

On appeal, Dayringer makes seven allegations of trial court error, including the contention that the state did not make a submissible case. We affirm.

We address the submissibility issue first, since if the state did not prove its case, reversal would be mandated, and the other allegations of error would then be irrelevant. In considering the question of whether the evidence was sufficient to submit the issue of defendant's guilt or innocence to the jury, we review the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to uphold the jury verdict. State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 16 (1985). In cases like this where the conviction is premised on circumstantial evidence, the facts relied on by the state must be consistent with each other, consistent with defendant's guilt, and inconsistent with any reasonable theory of his innocence. State v. Richardson, 719 S.W.2d 884, 886 (Mo.App.1986).

The facts in the case relevant to the submissibility issue are that on the 10th day of April, 1986, Joyce Holland, a computer programmer with Tamko Asphalt Products, lived in an upstairs apartment at 114 1/2 Pearl Street, Joplin, Missouri. The downstairs apartment was occupied by defendant Joe Dayringer his mother, Juanita Beck, Delores Andrews, Russel Burkhart, and Junior Randall, a/k/a Morris Hudnall.

On the afternoon of April 11, a fellow co-worker of Holland's, Lloyd Parker, became concerned because Joyce had not reported for work that day, nor had she called in. He went to Joyce's home and found her dead, lying on her kitchen floor. Holland had bled to death as a result of 39 stab wounds. There was dried blood on the kitchen flooring, the refrigerator, the kitchen counter, and the walls. There were three bloody footprints on the floor close to Joyce's body, showing a tread mark from a shoe sole. From the degree of rigor mortis in the body, medical experts were able to determine that the approximate time of death was 8:30 p.m. on the previous evening.

Police were called, and came to the crime scene. While interviewing people standing outside the apartment, Detective Kenneth Copeland noticed that Dayringer had several deep scratch or claw marks on his face and neck. When asked where he got the marks, Dayringer told Copeland that while pumping his pellet gun, it kicked back and struck him in the face. Copeland did not believe this story as, in his opinion, the type of accident Dayringer described could not cause the type of marks Dayringer had on his face. Copeland asked Dayringer to let him see the bottoms of his tennis shoes. When Copeland looked at the tread on the soles, it appeared to him to match the tread marks in the bloody footprints found near Holland's body. Copeland also saw what he thought to be dried blood on the tennis shoes. The shoes were confiscated by the police, and later examined by experts. The tread mark on the shoes matched the tread marks in the bloody footprints, and the bloodstains on the shoes were of type O positive blood, which was the same blood-type as Joyce Holland's. Dayringer's blood-type was A positive.

On the evening of April 10, "just before dark," Delores Andrews, Juanita Beck, Russel Burkhart, and Junior Randall left the apartment with a man by the name of Dickie Weir, in order to look for an apartment for Weir. As they left, Delores noticed that Dayringer was talking to Joyce, who was painting a fence for a cat pen. Dayringer was wearing a camouflage jacket and blue jeans. When the group returned three or four hours later, absent Weir who had gone home, Dayringer was asleep in his room. There was a pair of blue jeans and a shirt soaking in the bath tub, which had not been there earlier.

The next morning, Delores saw scratches on Dayringer's face, and teased him about it saying, "it looked like a wildcat got ahold of him." She had not noticed the scratches on his face before. Dayringer told Delores his gun had backfired on him. Several days later, after Dayringer had been placed in custody, Delores went into his room to pack his clothes and clean up the room, as the group had decided to move. Delores found a bloody camouflage jacket that looked like Dayringer's, and a bloody pair of blue jeans hidden behind a couch. She showed the articles to Junior Randall and Juanita Beck. Juanita, who was Dayringer's mother, started crying. Delores did not know what Juanita did with the clothes. Later, Delores saw Juanita washing some "black stuff" off a survival knife that belonged to Dayringer. The bloody jacket, jeans, and knife were never located by the police.

Dayringer told three different stories as to how he got the scratches on his face and neck. He said he received them from (1) a pellet gun malfunction, (2) by cutting himself shaving, and (3) in a bicycle wreck. Witnesses in his behalf at trial added a fourth explanation which was that Dayringer received them while playing war games. At trial, Dayringer admitted being alone in the downstairs apartment for some time on the evening of Joyce Holland's murder. No one saw her alive after that time. The evidence related above was consistent with Dayringer's guilt, and inconsistent with any reasonable theory of his innocence, and was sufficient to let the jury reasonably infer that Dayringer killed Joyce Holland. The point is denied.

The next three allegations of trial court error that we address, which were Dayringer's points relied on one, two, and three, concern proposed defense witness Kenneth Heistand. In April of 1987, Heistand, who was serving time in the Missouri Department of Corrections, wrote the Jasper County Public Defender and told him that while he and Russel Burkhart were both confined in the Carthage, Missouri jail, Burkhart, who was described by Heistand as a "state witness," told Heistand that he (Burkhart), and not a "juvenal," [sic] had murdered a young woman in Joplin by stabbing her. The public defender disclosed this information to the prosecutor at whose request Heistand was interviewed by Cole County authorities. In this interview, Heistand said Burkhart had told him that he had stabbed Joyce Holland a number of times during an unsuccessful rape attempt, and had hidden his bloody clothes behind a sofa in Dayringer's room. Heistand also talked to defense counsel about Burkhart's conversation with him. Heistand was then subpoenaed by the defense, and was brought to Joplin by authorities so that he might testify. After being confronted by the prosecutor who was trying Dayringer's case, and being told that he might be cross-examined relative to an unrelated murder, Heistand refused to testify on the grounds that his testimony might incriminate him. A defense motion to compel him to testify was denied by the trial court.

Dayringer contends that (1) Heistand's refusal to testify was the result of prosecutorial misconduct in that the prosecutor's threats to question Heistand about an unrelated homicide coerced him not to testify, (2) the trial court erred in failing to compel Heistand to testify, as no rational basis existed for Heistand's invocation of his privilege against self-incrimination, and (3) the trial court erred in failing to grant a new trial because the state failed to disclose to defense counsel what Heistand had told state investigators concerning his conversations with Russel Burkhart.

Heistand's statements regarding his alleged conversation with Burkhart, if admissible at all, would only be so as an exception to the hearsay rule called declarations against penal interest. Generally, such declarations are not admissible in criminal proceedings, State v. Turner, 623 S.W.2d 4, 8 (Mo. banc 1981), and are never admissible unless (1) the declarant is unavailable as a witness, with refusal to testify by asserting fifth amendment privileges being considered proof of unavailability, (2) there is substantial indicia of reliability of the alleged declaration, and (3) the declaration, if true, would exonerate the defendant. State v. Brooks, 693 S.W.2d 211, 212 (Mo.App.1985); State v. Turner, supra, 623 S.W.2d at 9. All prongs of this test must be satisfied in order for the declaration to be allowed.

Here, there was no proof that Burkhart was unavailable as a witness. He was incarcerated in the Missouri state penitentiary, and could easily have been produced. In addition, he testified at a pretrial hearing that he was willing to testify. He was available as a witness to either the state or the defense, if they had chosen to use him. In addition, there was no corroborating testimony or other evidence of reliability to support Heistand's statement about his alleged conversation with Burkhart. As a result of failure of proof on these two required elements, Heistand's statement regarding what Burkhart supposedly told him was inadmissible hearsay. This being so, whatever Heistand said Burkhart told him was immaterial, and...