State v. Fritz

Decision Date26 January 2016
Docket NumberNo. SD 33505,SD 33505
Citation480 S.W.3d 316
Parties State of Missouri, Plaintiff–Respondent, v. Terry Glenn Fritz, Defendant–Appellant.
CourtMissouri Court of Appeals

Attorney for Appellant: Amy Marie Bartholow of Columbia, MO.

Attorneys for Respondent: Chris Koster, Atty. Gen., Mary Highland Moore, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, J.

Following a jury trial, Terry Fritz (Defendant) was convicted of first-degree murder and armed criminal action (ACA) for shooting and killing Kinga Gillibrand (Victim), who was pregnant at the time of her death. See §§ 565.020, 571.015.1 Defendant presents three points for decision. He contends the trial court: (1) plainly erred in accepting his waiver of counsel and permitting him to proceed pro se ; (2) abused its discretion in overruling his motion for mistrial after a law enforcement witness displayed a weapon unrelated to the crime charged; and (3) abused its discretion in admitting evidence regarding the discovery of fetal bones found with Victim's remains. Finding no merit in any of these points, we affirm.

An appellate court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict and disregards all contrary evidence and inferences. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.

Victim and Defendant were involved in an intimate relationship. They met in 2005 and were together until Victim was murdered. They had lived in Bloomington, Illinois, but moved to Defendant's mother's home in Meta, Missouri. Their son (Son) was born in July 2006, and Victim was 16 weeks pregnant with a second child at the time of her death. Victim had her last prenatal visit with her obstetrician on June 7, 2010.

Defendant also was involved in an intimate relationship with Danielle Beaumont Smith (Smith). They met in 2007 while she was working at Home Depot in Normal, Illinois. He frequently came into the store with Son. He said that he was divorced from Victim and was a single father. Smith became pregnant by Defendant, and their daughter was born in August 2009. Smith didn't see Defendant often and was concerned about his honesty. Defendant told Smith that Victim had moved in with him in 2008 because she didn't have a job and needed a temporary place to stay. Victim called Smith, however, and told her that Defendant and Victim were still in a relationship. Smith confronted Defendant, and he said that Victim liked to cause drama and that they were not together. Defendant said that Victim was unstable and that she didn't want to be a mother, which was why he had full custody of Son. According to Defendant, Victim had a drug problem and anger issues.

Defendant told Smith that he was living in his own home and described it as a "bachelor pad" that he had built for himself. He said that he wanted Smith, their daughter, and her mother to move in with him. Smith didn't know that Victim and Son were living there. Defendant told Smith that Victim had moved to Colorado with her boyfriend.

On June 8, 2010, Defendant and Son went to the Walmart in Rolla. At about 9:25 a.m., Defendant purchased two pillows, a mattress cover, a DVD, and a toy. Wilford Gann (Gann) and Curtis Mann (Mann) lived at Budget Apartments in Rolla. On June 8, 2010, they were standing outside talking when Defendant drove up. They witnessed him driving a black Toyota 4Runner with an Illinois license plate that had letters and then the number "1." Defendant backed up to the dumpster, looked at Gann and Mann, threw trash bags into the dumpster and drove away.

Gann and Mann returned to their respective apartments. Mann came back to the dumpster with his own trash. He found Victim's belongings in the garbage bags Defendant had thrown into the dumpster, including Victim's purse with a wallet and credit cards. Mann went to Gann's apartment and told him what Mann had found. The garbage bags also contained women's clothing and shoes. Gann called the police. Both Gann and Mann identified Defendant in a photo lineup.

Officer Jessie Hoyt (Officer Hoyt) went to the apartments. She found Victim's identification in the purse. Officer Hoyt gave the purse to dispatch and asked that Victim be contacted to retrieve her purse. Trina Duarte (Duarte) was in charge of lost and found at the Rolla Police Department. She tried to locate Victim. When Duarte couldn't reach Victim, she called Defendant as his information was in the purse, listed as an emergency contact. She spoke with Defendant three times on June 8th and once on June 10th. Duarte said that Defendant volunteered a lot more information than was typical for simply returning property, and Duarte thought this was unusual and odd.

Later on June 8, 2010, Defendant visited Smith in Illinois. They began making plans for Smith, their daughter, and Smith's mother to move into Defendant's home in Meta. Defendant appeared tense. He was driving a black Toyota 4Runner with license plate GNBRD 1.

While at Smith's home, Defendant received a phone call. Defendant told Smith that the call was from the Colorado State Police, and that Victim was missing and her purse had been found in a dumpster.

On June 14, 2010, Sheriff Harold Heitman (Sheriff Heitman) of Maries County took a missing person report from Defendant about Victim. Defendant said that he hadn't seen her since June 8th at about 9:30 a.m., when she had asked him to go to Walmart in Rolla to get personal hygiene items for her. Defendant said he bought those items and gave them to her. Defendant then told the sheriff that Victim had: (1) several other boyfriends and was probably running around with one of them; (2) left several times previously, but always returned when she ran out of money; (3) cashed out her 401K that had $30,000; (4) several different passports and that if she didn't want to be found, she wouldn't be found until she ran out of money; and (5) taken personal items including clothes and makeup.

Sheriff Heitman entered Victim into MULES as a missing person. He also made missing-person posters and placed them throughout the county, and notified the media.

In July 2010, there was a search of the home where Defendant and Victim had been living. The home was processed as a crime scene. The bedroom in the basement had blood stains on the west wall that appeared to have been cleaned. The wall had been rubbed so hard that the paint had been rubbed off and the drywall exposed. There were "swipe marks" on a picture frame and a photo collage. The blood stains came from the direction of the bed. When the bed was pulled away from the wall, blood splatter on the lower part of the wall was revealed. There were 30 to 70 blood stains on the wall, as well as blood stains on the mattress. The mattress pad was new. When the mattress was flipped over it revealed a sizeable blood stain on the bottom of the mattress and a rip on the mattress near the stain. There was a deformed bullet inside the mattress.

On November 16, 2010, Darin Lackman (Lackman) was hunting in Maries County when he saw something white in the woods. It was behind a shed on the property owned by Lydia Allred. When Lackman went to take a closer look, he saw that it was a white blanket. He saw a bone sticking out of the blanket and realized that it didn't look like an animal bone. He unrolled the blanket with his gun barrel and saw a human skeleton. Lackman called his wife, who called 911. The sheriff's department responded.

The remains were wrapped in bedding. Victim was wearing a t-shirt, underwear and socks, and she was wrapped up in a mattress pad and a fitted king-size sheet. There were also three pillows with cases on them. There were three expended shell casings with the remains. The three cartridge cases were fired from the same weapon.

A forensic pathologist, Dr. Russell Deidiker (Dr. Deidiker), examined the bedding from the home, including the mattress. He said that the blood stains were from Victim based on DNA testing. He determined that, based on the amount of blood, the gunshot would have been fatal without medical care.

Dr. Deidiker also examined the remains, which were almost completely skeletonized with a small amount of dried-out tissue on some of the bones. The remains were relatively complete and were those of a Caucasian female between 5'2‘ and 5'8‘ and 30 to 40 years old. There were defects in the right shoulder blade, right ribs and the spinal column from being shot. The bullet went from back to front consistent with being shot in the back. Dr. Deidiker compared the remains with Victim's dental records and found them to be consistent. The doctor testified that the remains were those of Victim and that Victim died from gunshot wounds.

Mark Beary (Beary), a forensic anthropologist, completed a biological profile and trauma analysis of Victim's remains. The skeleton was that of a 5'6 ‘ Caucasian female who was 38.2 years old, with a standard deviation of 10.9 years. The remains were skeletonized and had been exposed to the environment for a period of time. The exposure was consistent with having been there from June to November.

Beary found four areas of trauma on the skeleton. Each of the injuries was probably caused by a different bullet. Beary determined that, conservatively, there were three bullets, but there may have been four. If a bullet entered Victim but did not hit bone there would have been no evidence of it in the forensic review. Beary also found a fetal bone with the remains. The fetus' femur was less than an inch long. Beary opined the fetus was between 16 to 17 weeks old.

Tommy Wilcox (Wilcox) was in jail with Defendant in April 2011. According to Wilcox, Defendant said he was accused of murdering his girlfriend, whom Defendant described as "a piece of shit." Defendant also told Wilcox that: (1) Victim was a drug addict, she ran around on...

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