State v. Fleer, 61174

• Decision Date: 23 February 1993
• Docket Number: No. 61174,61174
• Citation: 851 S.W.2d 582
• Parties: STATE of Missouri, Respondent, v. Eugene Michael FLEER, Appellant.
• Court: Missouri Court of Appeals

Page 582

851 S.W.2d 582

STATE of Missouri, Respondent, v. Eugene Michael FLEER, Appellant.

No. 61174.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 23, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

March 31, 1993.

Application to Transfer Denied May 25, 1993.

Marsha Brady, Hillsboro, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

STEPHAN, Judge.

Eugene Michael Fleer ("Fleer") appeals his convictions, after a five-day jury trial, of two counts of first degree murder, § 565.020, RSMo.1986. We affirm.

The evidence, viewed in the light most favorable to the verdict, is as follows. In August 1986, Mari Kane ("Kane") lived at 200 Stillbrook Drive in Fenton, Jefferson County, Missouri, with her three and a half year old son, Tyler Winzen ("Tyler"). While Kane worked during the day, fifteen year old Stacy Price ("Price") babysat Tyler.

Steve Winzen ("Winzen"), Kane's ex-husband and Tyler's father, was not lawfully employed at this time. Rather, he earned his money selling drugs. His partner was Lester Howlett ("Howlett"). Howlett lived across the street from Kane's apartment. Kane considered Howlett her friend.

Kane had been caught shoplifting. As a result, she was required to attend "shoplifting classes" which were held on August 5-7, 1986. Kane wanted to be sure to get to the first class on time, so she asked Howlett to take her. Howlett agreed to do so. However, on the day of the first class, Howlett informed Kane that he would not be able to take her. He indicated that he had a friend, Fleer, who would be able to do so. Kane agreed to this arrangement. Kane further agreed that she and Fleer would use her car to get to the class.

At approximately 5:30 p.m. on August 5, 1986, Fleer arrived at Kane's apartment. Fleer, subsequently, drove Kane to the "shoplifting class" in her car. While Kane was in the class, Fleer had possession of Kane's car, car keys, and apartment key. After the class was over, Fleer picked up Kane, took her home, and gave her back her keys.

On the morning of August 7, 1986, Price arrived at Kane's apartment at approximately 6:55 a.m. Ten minutes later, Kane left for work, as Price lay on the couch, watching television, waiting for Tyler to awake.

At approximately 9:30 a.m., Neil Myrick ("Myrick"), who lived in an apartment at 201 Stillbrook Drive, woke up. He laid in bed for about twenty minutes and looked out his window. During those twenty minutes, he observed Fleer jogging in the rain. He also observed Fleer enter the building in which Kane and Tyler lived. He noted that Fleer remained in the building for approximately five minutes, thereafter exiting and going around the corner of the building.

At approximately 10:00 a.m., Price's mother, Judith Govereau, attempted to call Price. However, no one answered the phone. Govereau, therefore, asked her ten year old daughter, Rachel Nichols ("Nichols"), to go across the street and get Price. Nichols went across the street and knocked on the door. When no one answered, she returned home. Govereau told Nichols to return to the apartment because she believed that Nichols did not knock loudly enough. Nichols did so. Nichols rang the doorbell a few times. When she heard the phone ringing, she tried the door. Upon discovering the apartment unlocked, Nichols entered. Nichols looked around the apartment, but saw no one. She then heard the bathroom door click, as if someone was locking the door. Nichols, who was scared, ran home and told Govereau.

Govereau got dressed and went over to the apartment. After getting no response from her knocks or the doorbell, Govereau entered the apartment. Govereau noticed that the bathroom door was closed. She noticed light coming from underneath the bathroom door, and she could hear the toilet running. She called Price's name, but nobody answered. Realizing something was wrong, Govereau returned home to get her boyfriend, Richard Pashia.

At approximately 10:40 a.m., Govereau woke Pashia up. He got up, got dressed and went to the apartment. Pashia checked the bathroom door and discovered that it was locked. He found a key above the bathroom door and unlocked that door. When he opened the door, he discovered the bodies of Tyler and Price in the bathtub. Pashia pulled Tyler out of the water. However, realizing that there was no chance of saving either child, he left the bathroom to prevent Govereau from entering. As Pashia comforted Govereau, he told the next-door neighbors to call the police.

At approximately this same time, Patricia Abegg drove past the Stillbrook apartment complex. Abegg, who had known Fleer for several years, saw Fleer leave the apartment complex. Although Fleer had a reputation for neatness, Abegg noticed that his hair was "messed up".

The assistant chief of the Springdale Fire Protection District, Russell E. Million, arrived on the scene at 11:09 a.m. A gentleman directed him to Kane's bathroom. Million saw Tyler in the bathtub, face up. As he reached in to grab Tyler, he noticed Price. He also noticed that the water was "very, very hot".

One of Kane's friends called her at work, told her something bad had happened and that she needed to come home. When she arrived, an officer informed her that both Tyler and Price were dead. Kane saw Howlett standing by the doorway of the apartment building. She went to him and tried to put her arms around him, but he would not embrace her. He did, however, offer to call Winzen.

Later that day, Dr. Gordon L. Johnson, the chief medical examiner of Jefferson County, autopsied Tyler and Price. He concluded that Tyler died from drowning. He also concluded that Price died from drowning, in association with strangulation. He determined that the water which had been used to drown Tyler and Price was normal-temperature water, in that neither Tyler's nor Price's air passages were scorched.

That evening, Officers Thomas M. Moore and Michael Thompson interviewed Howlett. Howlett was "very nervous, very upset". When he broke down and started crying, the officers asked him if he would come back the next day and continue the interview. At approximately 10:30 p.m. the following day (Friday), Howlett asked Fleer to go to Rockford, Illinois to purchase cocaine. The two remained in Illinois overnight, returning to Fenton on Saturday. Upon their return, Howlett went to his apartment to pick up a scale. The two then went to Fleer's trailer to cut the cocaine.

At approximately 8:30 p.m., Fleer left his trailer to go to the Eders' home. When he returned to his trailer at approximately 11:00 p.m., he found Howlett dead, next to a package of cocaine. Fleer returned to the Eders' house. After making a phone call, he notified the Eders that they needed to call the police, since he had found Howlett dead in his trailer. Jeffrey Eder returned to Fleer's trailer with him. Jeffrey agreed to tell the police that he was with Fleer when Fleer found Howlett's body. After conducting an autopsy, Dr. Gordon determined that Howlett died from cocaine overdosage in association with heart problems.

On August 11, 1986, Officer William Baldwin interviewed Fleer. Fleer told Baldwin that he slept in his trailer the night before Tyler and Price were murdered. He also told Baldwin that although he went to Howlett's at approximately 11:30 a.m. on the day of the murders, he left the area shortly thereafter because Howlett did not answer his door. Fleer additionally discussed Howlett's death with Baldwin. Initially, Fleer indicated that on Friday, August 8, 1986, he went to see Howlett and borrowed a motorcycle. Fleer subsequently said that he was mistaken and was really eating spaghetti with another friend. Finally, Fleer stated that the truth was that he went to Guy Youngman's house and ate spaghetti and watched movies. Then, about 9 p.m., Howlett came by with a man named Henry Garcia to pick up Winzen's motorcycle. About 10:30 p.m., Howlett called back and asked Fleer to go to Rockford, Illinois, to purchase cocaine. He stated that after they returned on Saturday, he went to the Eders at approximately 8:30 p.m. Finally, he stated that when he returned to his trailer at approximately 11:00 p.m. that night, he discovered Howlett's body lying next to a package of cocaine. Fleer admitted that he disposed of the cocaine and subsequently notified the police of Howlett's death.

Later that day, Tim McEntee, a lieutenant with the St. Louis Police Department, interviewed Fleer. McEntee told Fleer that a witness had placed him near the scene of the children's murders when the murders occurred. Fleer admitted that he lied when he made his previous statement. Fleer stated that the night preceding the children's murders, he and Howlett were at Howlett's apartment. He further stated that they drank, snorted cocaine, got high, and fell asleep. Fleer told McEntee that his next recollection was leaving the apartment complex in daylight hours in his car which was parked behind the murder scene. Fleer additionally told McEntee that he went to his trailer, cleaned himself up and returned to the apartment complex where he discussed the children's murders with a maintenance man.

During this interview, Fleer admitted that he had lied about the events in association with Howlett's death. Fleer told McEntee that after he discovered Howlett dead, he cleaned up the scene, disposing of various articles of cocaine paraphernalia. Finally, Fleer told McEntee that he went to the Eders' house and that he and Jeffrey Eder worked up a lie to tell the police.

Sometime after Tyler's and Price's deaths, Fleer moved in with Rod Conway. Fleer told Conway that he thought Tyler and Price were killed because a drug deal had gone sour. He also told Conway that: (1) Tyler was wearing pajamas when he was killed; (2) Price was watching television the morning of the murders; (3) there was no forced entry into Kane's...