State v. O'Dell

• Decision Date: 04 December 1984
• Docket Number: No. 13284,13284
• Citation: 684 S.W.2d 453
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Denver O'DELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 453

684 S.W.2d 453

STATE of Missouri, Plaintiff-Respondent, v. Denver O'DELL, Defendant-Appellant.

No. 13284.

Missouri Court of Appeals,

Southern District,

Division Three.

Dec. 4, 1984.

Motion for Rehearing and to

Transfer Denied Dec. 26, 1984.

Application to Transfer Denied

Feb. 26, 1985.

G.H. Terando, Little, Million, Terando, Schellhammer and Associates, Inc., Poplar Bluff, for defendant-appellant.

John Ashcroft, Atty. Gen., Frank A. Rubin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

Count I of the amended information in this case charged that the defendant, acting in concert with others, committed conventional murder in the second degree in that he intentionally, premeditatedly, with malice aforethought and unlawfully killed Calvin Eugene Pyatt by shooting him on April 22, 1982. Count II alleged the defendant, acting in concert with others, committed second degree felony murder in causing the death of Ruth Ann O'Dell on April 22, 1982, when he attempted to commit assault in the first degree by attempting to kill or cause serious physical injury to Calvin Eugene Pyatt by shooting him and committed this offense by means of a deadly weapon. The jury found the defendant not guilty on Count I. He was found guilty on Count II. In accordance with the verdict of the jury he was sentenced to imprisonment for 50 years.

Upon defendant's appeal, this court adopted an opinion affirming his conviction and sentence. By its order, the cause was transferred to the Supreme Court. That court has ordered the cause re-transferred to this court for re-examination in light of State v. Babb, 680 S.W.2d 150, (Mo. banc 1984). State v. Babb, supra, deals with alleged jury misconduct which is asserted in only two of the defendant's many points. This court's re-examination of the cause in light of State v. Babb, supra, is set forth in the latter portion of this opinion dealing with those points.

Because of the issues involved, a detailed statement of facts is necessary. In considering the sufficiency of the evidence, however, this court must accept as true all evidence and inferences that tend to support the verdict and disregard all evidence and inferences to the contrary. State v. Brown, 660 S.W.2d 694 (Mo. banc 1983). The initial resume of the facts will be primarily stated in accordance with that direction. Evidence to the contrary will be interspersed where it will aid in the development of the case.

The scene of this tragedy was northeastern Carter County. Except as noted, the places involved were in and people involved lived in that community. O'Dell and Pyatt were long time acquaintances. They had been reared in Carter County. However, at the time of the death, O'Dell lived in Poplar Bluff. The two frequently drank together and occasionally fought each other. Pyatt was said to have a violent temper and on one occasion he shot his television.

Apparently, although it is not clear from the record, Gene Schmidt and Wayne Schmidt were natives of St. Louis. However, at least Wayne had lived in Carter County for a number of years. Gene Schmidt said at the time of the incident he lived in St. Louis. They were friends of O'Dell. They were also, at least at one time, apparently friends of Pyatt. However, in approximately April, 1981, Gene was in the Pyatt home and got into an argument with Pyatt's daughter's boyfriend. Pyatt told him to leave and not come back. He did not. In early 1982, O'Dell accompanied by Wayne Schmidt met Pyatt on a country road in Carter County. O'Dell and one Paul Matthews were said to be fighting. O'Dell wanted Pyatt to go with him, inferentially to accost Matthews. He said that if Pyatt did not do so, he would shoot him. He was pointing a 12-gauge shotgun at Pyatt's head at the time.

On April 9, 1982, at about 7:40 p.m. a deputy sheriff found O'Dell on the side of a road near Ellsinore. He was seriously injured and was bleeding heavily from a head wound. He told the deputy sheriff that Pyatt had done it. When asked if he wanted to sign a complaint, O'Dell replied, "Hell no, I won't sign nothing, I will take care of the matter myself."

O'Dell was taken by ambulance to a hospital in Poplar Bluff. During the trip, he told the attendant several times that he would take care of Pyatt. He added they never gave him a chance to fight back. O'Dell was hospitalized for approximately ten days.

On April 22, 1982, between 10:00 a.m. and 12:00 noon, O'Dell and his wife Ruth went into a bar two miles west of Ellsinore in Carter County. He was acquainted with the proprietor. O'Dell told the proprietor he had just been released from the hospital. He asked the proprietor if he had given the proprietor any trouble the evening of April 9, 1982. The proprietor said that he didn't know O'Dell was in the car until he was told later. He added that "Pyatt come in and got something from the liquor store and they left." O'Dell said he had been injured by Pyatt and "I am going to get my evens." Ruth O'Dell added, "When Denver gets done with his licks, I am going to put mine in." The proprietor advised him to get a warrant. O'Dell did not reply. The O'Dells stayed between 30 and 45 minutes. During that time they talked of no subject other than Pyatt and what they were going to do to him.

In the early morning of April 22, 1982, at approximately 6:00 a.m., Gene Schmidt and Wayne Schmidt, in separate cars, returned from Texas. Gene's car was steaming, so they stopped at the home of a friend, one John Clifford McDowell. The three decided to go to Van Buren for a case of beer. After they purchased the beer, they started back toward Wayne's house and stopped at a store at "21 Junction." This was between 9:00 and 9:30 a.m. At the store, Gene Schmidt called O'Dell. He stated that he talked with him at that time. Apparently, McDowell had told him of a fight between Pyatt and O'Dell and O'Dell's hospitalization.

That morning, one Cecil Million had been at the home of Ned Pyatt, brother of Calvin Eugene Pyatt. Ned returned Cecil Million to his home. On the way they stopped at the 21 Junction Store for cigarettes and gasoline and encountered Gene Schmidt. Gene Schmidt said to Ned, "Tell that brother of yours he shouldn't have whipped up on Denver O'Dell." Ned took Cecil Million home, drove to his brother's home and told Eugene Pyatt of Schmidt's remark.

After buying the beer, McDowell took the Schmidts to Wayne's home. They drank a couple of beers and the Schmidts slept. McDowell went home. About 1:00 p.m. McDowell returned with Gene's automobile. Gene Schmidt testified Denver and Ruth O'Dell came with McDowell. McDowell, Gene Schmidt, Wayne Schmidt, Denver O'Dell and Ruth O'Dell talked at Wayne's home. The talk was said to have turned to turkey hunting. After approximately two hours, Denver O'Dell, Ruth O'Dell and Gene Schmidt left in Denver O'Dell's car. This threesome went to the Twin Pines Store. It was said for the purpose of buying turkey tags and shotgun shells. Wayne Schmidt and McDowell went to McDowell's home. Gene Schmidt said they had their own automobile, although there is no indication of whose automobile. At his home McDowell loaned Wayne a 20-gauge shotgun so he could go turkey hunting. It was said the men planned a turkey hunt for the next day.

After the 20-gauge shotgun was obtained, Denver O'Dell, Ruth O'Dell, Wayne Schmidt and Gene Schmidt left in Denver O'Dell's automobile. Wayne was driving. Gene was in the front passenger seat. Denver was in the seat behind the driver. Ruth was in the seat behind Gene. The 20-gauge shotgun was in the front seat between Wayne and Gene Schmidt. A single shot 12-gauge shotgun that belonged to Wayne Schmidt was on the floor in front of Denver O'Dell and Ruth O'Dell. Both weapons were loaded. There were also in the car two sticks; one described as a table leg and the other as a nightstick.

The group then went to the home of Ned Pyatt. There was testimony they did so because Ruth O'Dell wanted some poke to make poke salad. Someone had said that Cecil Million knew where poke could be found. McDowell said he believed that Cecil Million was at Ned Pyatt's.

Ned Pyatt came to the O'Dell car and talked with the group. He was given a beer from the trunk. He told them he had taken Cecil Million home. There was other casual conversation. He acknowledged that many people in Carter County carry guns in their automobiles and he thought nothing about the guns.

Gene Schmidt testified they drove to the Cecil Million property. Apparently there are two houses on that property separated by a distance of approximately 50 yards. Other people lived in the more distant house. Gene Schmidt and O'Dell testified they drove to the nearer house and honked. When no one appeared, they left. Cecil Million testified that he was at home that afternoon and no one came to his house.

Gene Schmidt testified that Denver O'Dell wanted to go to Eugene Pyatt's to talk to him and to see if they could find Cecil Million. It is clear from the record that before the O'Dell automobile on its third and last trip stopped at the Eugene Pyatt home, the foursome had driven by that home twice. The first time Eugene Pyatt's automobile was not at his house.

As noted, Ned Pyatt had told his brother Eugene Pyatt of Gene Schmidt's remark. Eugene Pyatt had also seen Denver O'Dell's automobile, with the horn honking, pass his home. Eugene Pyatt had taken his .30 carbine to his automobile, which was parked in front of his house. Shortly before the O'Dell automobile stopped at Eugene Pyatt's home, his son Johnny Pyatt had taken his .22 rifle and walked to a pond some distance from the house.

On the third trip past the Eugene Pyatt home, someone in the foursome saw Eugene Pyatt either in or by his automobile. There was testimony from Gene Schmidt and Denver O'Dell the O'Dell automobile went past the Eugene Pyatt home until Eugene Pyatt was observed in the road, waving for them to come back. They...