State v. Futo

• Decision Date: 19 January 1999
• Docket Number: No. 73500,73500
• Citation: 990 S.W.2d 7
• Parties: STATE of Missouri, Respondent, v. Emory FUTO, Appellant.
• Court: Missouri Court of Appeals

Page 7

990 S.W.2d 7

STATE of Missouri, Respondent, v. Emory FUTO, Appellant.

No. 73500.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 19, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 6, 1999.

Application to Transfer Denied

June 1, 1999.

Nancy L. Vincent, St. Louis, for appellant.

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

RICHARD B. TEITELMAN, Judge.

Emory Michael Futo ("Defendant") appeals the judgment and sentences following his conviction by a jury of four counts of murder in the first degree. The trial court sentenced Defendant to four consecutive terms of life imprisonment without possibility of probation or parole. We affirm.

BACKGROUND

Defendant was charged by indictment with four counts of first degree murder for the July 25, 1991 murders of his father, mother, and two younger brothers, Joe and Nick. Defendant grew up in St. Louis, but at the time of the killings resided with his wife and child in Riverside, California. On February 1, 1993, the cause went to trial before a jury in the Circuit Court of the City of St. Louis. Defendant was found guilty of all four counts of murder and sentenced to four consecutive life sentences; but on appeal this Court reversed Defendant's convictions and remanded the case for a new trial. State v. Futo, 932 S.W.2d 808 (Mo.App. E.D.1996), cert. denied,520 U.S. 1143, 117 S.Ct. 1313, 137 L.Ed.2d 476 (1997). The cause again went to trial on September 22, 1997, before a jury with the Honorable Booker T. Shaw presiding. Viewed in the light most favorable to the verdicts, the following evidence was adduced:

Some time before the murders Defendant approached an individual who worked with Defendant at Metal Container Corporation in Riverside, California, and told him that he wanted to buy a "cheap, throwaway" .38 caliber handgun. This co-worker told Defendant that he did not have anything like that to sell, but that he could acquire a gun for Defendant. He indicated, however, that the gun would have to be registered in Defendant's name. Defendant did not discuss such a sale any further with this individual. In June of 1991, Defendant spoke to a neighbor about whether neighbor knew how to get an unregistered handgun. Neighbor said that he had a registered .357 caliber pistol that he wanted to sell for $400. Defendant replied that he wanted a .38 caliber pistol. Neighbor said that he had a friend who was willing to sell a 9 millimeter pistol for $150. Defendant said that was too expensive. Defendant asked neighbor to keep looking for a gun for him. Later, in late June, Defendant told neighbor to forget about looking for the gun, because it had been taken care of.

On July 19, 1991, Defendant mailed a package, which weighed 3 pounds and 11 ounces, to Nick. It was delivered to the residence of Defendant's parents and brothers in south St. Louis on July 20, 1991. The same day, Nick showed the package to his girlfriend but he would not show her what was inside it.

On or about July 22, 1991, Defendant purchased round-trip airline tickets to St. Louis with cash under the assumed name of "Jim Clayton." The eastbound flight, on American West Airlines, was to leave Ontario, California on July 25, 1991, and the return flight was to leave St. Louis the next day.

On July 24, 1991, Nick's girlfriend observed someone call Nick on the telephone. Nick wrote down America West flight 1408.

In early July of 1991, Defendant had spoken to a friend about giving him a ride later that month to the local airport. Defendant said that he had something to take care of with his brother Nick back in St. Louis. To hide what he was doing from his wife, Defendant made up the story that he and friend were going camping. On July 25, 1991, friend and Defendant loaded up a truck with camping gear, so that Defendant's wife would not know that Defendant was going to the airport. Friend took Defendant to the local airport that day; Defendant flew to St. Louis on America West flight 1408; and friend picked up Defendant at the same airport the next day.

On July 25, 1991, Defendant's brother Nick was working at his regular job at Grandpa Pidgeon's on Chippewa. Shortly before Nick got off work there, he had a co-worker assist him in purchasing a mallet and a pillow. Nick left work that night at approximately 5:30 p.m. At about 8:00 p.m., Nick called his girlfriend. Nick said that he would call her again around midnight. She never heard from him again.

At around 9:00 p.m. that evening, residents of a nearby apartment complex heard gunshots coming from woods at the back of the New St. Marcus Cemetery, located in the City of St. Louis. Approximately 15 to 20 minutes after the shots were heard, Defendant was seen driving Nick's red Mitsubishi Eclipse into an entrance of a driveway near the apartments. Defendant was the only person in the car. He sat in the car for five or six minutes staring at the woods and then drove away. At approximately 4:30 p.m. the next afternoon, the body of Nick Futo was found in the woods at the back of the New St. Marcus Cemetery. He was lying face down on the ground and had been shot four times. A gunshot wound to the back of his head was the fatal wound; the other wounds, two gunshot wounds to the back and a gunshot wound on the right side of his face, were consistent with having been inflicted while Nick lay prone on the ground. A .38 caliber firearm was used to commit the murder; spent bullets were found underneath the body. A brand new white pillow was found in a dump near Nick's body. It looked like the pillow that Nick had purchased on the night of his murder. A piece of paper was found in Nick's pocket. It had "1408 American West" written on it, the number of Defendant's flight from California to St. Louis.

Between 10:00 and 10:30 p.m. the evening of July 25, Defendant was also observed sitting in the red car at a location near to his parents' residence. He was going through some papers.

Defendant's father worked at Anheuser Busch. On July 25, he left work and arrived home at approximately 12 midnight.

At about 2:47 a.m. that same night, actually the early morning hours of July 26, a telephone request was made for a cab at a Denny's restaurant at 11266 Midland. A cab picked up Defendant at that address and took him to a Coco's restaurant near the St. Louis Airport. Defendant arrived at that restaurant at about 3:00 a.m., and stayed there for about 20-40 minutes. Later that morning, Defendant flew back to California, where he was picked up by the same friend with whom he had concocted the cover story to make it look as if he had gone camping with friend rather than traveled to St. Louis.

At about 4:30 p.m. on the afternoon of July 26 (coincidentally, at just about the same time Nick's body was discovered in the woods behind the cemetery), police, responding to concerns expressed by several co-workers and relatives of Defendant's father and mother who had been unable to reach them that day, entered father and mother's home. There were no signs of forced entry. In the residence, the officers found the dead bodies of father and mother. Mother's body was in the hallway towards the rear bedroom. The cause of death was blunt head trauma. She had five separate head wounds. Her skull had been fractured, and depressed areas of the skull had cut into the surface of her brain. An electrical cord was tied around her neck. Father was found laying in the basement. His body had four stab wounds and three gunshot wounds. He suffered gunshot wounds to his shoulder and buttocks area and stab wounds to his chest. The fatal wound was a stab wound that pierced his heart. Spent .38 caliber bullets were recovered from father's body. They were fired from the same firearm that had been used to murder Nick.

At about 6:00 p.m. that same day, Defendant's other brother, Joe, was found slain. Police officers were investigating a car that had been parked at a location which was about a block from father and mother's residence since at least 6:30 that morning. The red Mustang belonged to Joe Futo. Joe's body was found beneath trash bags on the back seat of the car. He had been shot three times with a .38 caliber firearm. The gun that was used to kill Joe was the same gun that was used to kill Defendant's father and Nick.

In the early morning hours of July 27, Nick's Mitsubishi Eclipse was found parked on the 2500 block of Link Road, in an area between Midland and Lindbergh within walking distance of the Denny's restaurant where Defendant had called a cab to take him to a restaurant near the airport.

Later that same day, after having communicated by phone with St. Louis law enforcement authorities, members of the Riverside County, California Sheriff's Department went to Defendant's home to talk with him. Defendant told the officers, among other things, that he did not own a gun and that he had not been to St. Louis in the last year. At the time he made those statements, the law enforcement authorities knew that Defendant had, in fact, been in St. Louis on the night of the murders. Sergeant Jeffrey Mullins then asked Defendant if he would answer some questions, and he said he would. They went to a back bedroom. After receiving Miranda warnings, Defendant invoked his right to counsel. Defendant was arrested and taken to the Riverside County Sheriff's Department.

The next day, July 28, members of the St. Louis City Police Department went to Riverside County, California. While they were there, Defendant stated that he wanted to talk to them. They informed Defendant of his Miranda rights, and Defendant agreed to make a statement. Defendant made a statement which was taped.

Defendant told three different stories about the murders to the officers. In Defendant's first story, he acknowledged that he had lied when he previously stated he was not in St. Louis on the night of July 25. He said that he had come to St. Louis to help Nick...