State v. Ervin
| Decision Date | 21 July 1992 |
| Docket Number | No. 72593,72593 |
| Parties | STATE of Missouri, Respondent, v. Tomas G. ERVIN, Appellant. |
| Court | Missouri Supreme Court |
Janet Thompson, Columbia, for appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Following a change of venue from Cole County, a Callaway County jury convicted appellant, Tomas G. Ervin, of two counts of first-degree murder, Section 565.020, RSMo 1986, 1 and one count of first-degree robbery, Section 569.020. The jury recommended and the trial court imposed the death sentence. This Court has exclusive appellate jurisdiction over cases in which the death penalty is imposed. Mo. Const. art. V, § 3. Under Rule 29.15, Ervin also seeks appellate review of the overruling of his post-conviction motions. Ervin advances 26 points and 40 specifically enumerated subpoints of alleged error. Appellant's allegations of error attack every phase of the proceedings in the trial court, more often than not seeking plain error review where the charge of error was not preserved for appellate review. Finding no reversible error, the judgment of the trial court is affirmed as to Ervin's guilt, the sentence of death imposed, and the trial court's overruling of appellant's Rule 29.15 motion.
This Court takes the facts in a light most favorable to the verdict. Bert L. Hunter and Tommy Ervin were friends. Hunter resided in Largo, Florida. Ervin lived in Jefferson City, Missouri. In late November, 1988, Hunter visited Ervin in Missouri. Both men were desperately short of pecuniary resources. They discussed possible criminal schemes for remedying that condition. Hunter suggested robbing a bank. Ervin had a much more complicated scheme; he wanted to kidnap a person of means and force that person to withdraw money from an account at his/her bank. After discussing the two options, Hunter and Ervin chose to begin with Ervin's plan. To that end, they began looking at several homes in Jefferson City as possible targets but did not select one. Hunter returned to Florida.
In early December, 1988, Ervin visited Hunter in Florida. There, Ervin purchased rubber gloves for use in the planned crime(s) still under discussion between the two. By December 12, 1988, Hunter and Ervin had returned to Jefferson City. Ervin purchased plastic trash bags from the local Wal-Mart Store, again for use in the contemplated crime.
Mildred Hodges, 75, and her son, Richard, 49, lived on Boonville Road in Jefferson City. As he continued to search for targets for the kidnapping and murder crime, Ervin noticed the Hodgeses' Lincoln Continental parked in front of their home. Reasoning that a Lincoln Continental was a sure sign of wealth, Ervin and Hunter settled on the Hodgeses as their intended victims.
Hunter and Ervin planned for Hunter to gain entry to the Hodgeses' house by posing as a delivery person; Ervin would follow Hunter into the house. Once in the house, the plan called for Ervin to select one of the occupants to go to the bank to extract money. Hunter intended to remain in the house with any other occupants and await Ervin's return. Ervin and Hunter had agreed in advance that there would be no witnesses to the crime; the plastic bags purchased from Wal-Mart would serve the purpose of suffocating the occupants of the house. They would dispose of the bodies in a trash incinerator.
Around noon on December 15, 1988, Ervin and Hunter put their plan into action. They drove Ervin's 1981 Mazda to the Hodgeses' home. Posing as a delivery person, Hunter knocked on the front door. Mildred Hodges answered. Hunter pushed his way through the door, grabbed her arm, and dragged her into the house. Ervin followed, shutting the door. Hunter produced a pistol. Mildred panicked. In her struggle, she called out to her son, Richard, for help. Unknown to Hunter and Ervin, the Hodgeses operated a realty company from their home. Apparently conducting company business, Richard was in the office facing the front of the house when the struggle began. Richard came out of the office and told Hunter to let his mother go. Hunter released Mildred, who fell against the wall and bloodied her nose.
Richard told Ervin and Hunter of his mother's heart problem. Hunter requested that Richard calm his mother. Richard escorted Mildred to a bedroom across the hall from the office. Mildred sat on the bed. At Hunter's direction, Richard bound her hands and feet with duct tape.
Mildred and Richard pled with Ervin and Hunter to let them go. They said that they had no cash, that all their money was in a trust fund and unavailable to them. They promised that if Hunter and Ervin would simply leave the house, they would not call the police. Richard also told Ervin and Hunter that a person from the newspaper had arranged to come to the house at 1:00 p.m. to pick up an advertisement for the realty company.
This prospect alarmed Ervin and Hunter. They left Mildred on the bed and took Richard to the living room. There they began to bind his hands and feet with duct tape. Hunter heard a noise from the bedroom. On investigation, he found Mildred standing in front of a dresser. Hunter immediately bound Mildred with duct tape again and left her on the hallway floor near the bedroom. Hunter returned to the living room.
When Ervin saw that Hunter had returned, he nodded and proceeded to put duct tape over Richard's mouth and nose. When Richard complained that he could not breathe, Ervin told him, "That's the general idea." In a frenzy, Richard broke free. Ervin and Hunter subdued him, placed him on his stomach, and taped his hands behind his back. Hunter told Ervin, "Well, you know, go take care of [Mildred]." Hunter placed tape over Richard's nose and mouth and put a plastic bag over his head. Hunter held Richard's nose and throat for two or three minutes until he lost consciousness. As Hunter smothered Richard in the living room, Ervin placed a trash bag over Mildred's head in the hallway and held it there until she, too, lost consciousness.
Ervin and Hunter took Richard's wallet and Mildred's purse and then left in Ervin's car. They returned to the Hodgeses' residence that evening, shortly after midnight. Wearing the rubber gloves Ervin had purchased in Florida, the two wrapped the victims' bodies in trash bags and sealed the bags with duct tape. When parts of the rubber gloves adhered to the duct tape and tore off, they switched to leather gloves. That task completed, they ransacked the house for valuables, finding some jewelry, furs, Scotch whiskey, and $16.00 in cash. Next, they dragged Richard Hodges' body into the garage and put it into the back seat of the Lincoln Continental. Deviating from their plan, they decided to dump Richard's body in a ditch alongside the railroad tracks near Marion, Missouri. Ervin drove the Lincoln; Hunter followed in Ervin's Mazda.
Having disposed of Richard's body, they drove back to get Mildred's body. When Ervin and Hunter tried to move it, Mildred's body emitted fluids and a bad odor; they decided to leave her body there. They left the residence, taking the Lincoln Continental, which they left in another area of Jefferson City with the keys in it.
Ervin and Hunter remained in Jefferson City for a few days. Eventually, however, they decided to use the Lincoln as a getaway car in their ongoing scheme to improve their finances. They drove the Lincoln to Paducah, Kentucky, and spent several days driving up and down Highway 60 in search of a bank to rob.
On December 19, 1988, a crew from the Union Pacific Railroad found a body near Marion ultimately identified as Richard Hodges. A post-mortem examination showed that Richard died of suffocation. Following the discovery of Richard's body, law enforcement authorities obtained a search warrant for the Hodgeses' home and executed it the same day. They found the badly decomposed body of Mildred Hodges wrapped in trash bags on the living room floor. An autopsy revealed that she died either from suffocation or from a heart attack.
When Ervin and Hunter learned that the Hodgeses' bodies had been discovered, they abandoned the Lincoln at a Thrifty Inn in Pudacah, Kentucky, and returned to Jefferson City. Continuing their efforts to find a bank to rob, they made several trips between Jefferson City and Florida for that purpose. On December 31, 1988, they met with Dennis Woodrum and Anne Tepo, two Florida acquaintances. As a "late Christmas present," Hunter gave Tepo a bag of woman's jewelry. That bag contained a ring belonging to Mildred Hodges.
On January 4, 1989, Ervin and Hunter split up. Hunter remained in Florida; Ervin returned to Jefferson City. Ervin later telephoned Hunter and expressed concern that there might be some incriminating evidence in the abandoned Lincoln. Ervin returned to Pudacah, and sometime during the night of January 14-15, he set fire to the Lincoln in the parking lot of the Thrifty Inn.
On the strength of this evidence, a large portion of which came from the testimony of Ervin's co-conspirator, Bert Hunter, the jury found Ervin guilty and recommended death. The trial court sentenced Ervin to death.
Ervin filed a timely motion under Rule 29.15. Following an evidentiary hearing, the trial court issued findings of fact and conclusions of law overruling Ervin's motion.
Ervin raises several points of error focusing on the jury selection process.
First, Ervin claims that the court plainly erred in allowing the prosecutor to ask venirepersons if they could act as the jury foreperson, in light of the fact that the foreperson is the only juror who signs his or her name to the verdict form for death. He claims that this question sought a commitment from the jurors to impose death. Review is under Rule 30.20.
This issue was squarely addressed and rejected in State v. McMillin, 783...
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