State v. Garrett, 11246

Citation595 S.W.2d 422
Decision Date19 February 1980
Docket NumberNo. 11246,11246
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Arvin J. GARRETT, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

John Ashcroft, Atty. Gen., Richard F. Engel, Steven W. Garrett, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.

MAUS, Judge.

On October 11, 1978, a jury convicted the appellant of first degree murder. Following post trial procedures on December 13, 1978, he was sentenced to life imprisonment without parole for fifty years. His notice of appeal was filed on December 19, 1978. The transcript on appeal was filed in this court on January 30, 1979. Mo. Const. Amend. Art. V, § 3, effective January 2, 1979, provides that "where the punishment imposed is death or imprisonment for life" exclusive appellate jurisdiction is in the Supreme Court. The state urges that the case should be transferred to the Supreme Court. Concisely stated, the question is whether appellate jurisdiction is determined by the filing of the notice or by the filing of the transcript. In Mince v. Mince, 481 S.W.2d 610 (Mo.App.1972), cited by the state, the court stated that because the transcript had not been filed "our jurisdiction to decide that cause has not yet been engaged." However, that case is not persuasive on this point for there the court was speaking of its ability to decide a separate appeal, not its jurisdiction of that appeal. In State v. Johnson, 530 S.W.2d 690, 691 (Mo.banc 1975) the Supreme Court assumed jurisdiction "(b)ecause the appeal was filed prior to January 1, 1972," apparently referring to the notice. This is consistent with prior decisions concerning the effective date of an appeal. "The vital step for perfecting an appeal is the timely filing of a notice of appeal under Section 129. Thereupon the appeal becomes 'effective.' " Weller v. Hayes Truck Lines, 355 Mo. 695, 700, 197 S.W.2d 657, 660 (banc 1946). It is likewise consistent with V.A.M.R. Civil Rule 81.04 which provides that after a timely notice of appeal the failure of the appellant to perfect the appeal "does not affect the failure of the appellant to perfect the appeal "does not affect the validity of the appeal," but is the basis for appropriate action by the appellate court. Bresnahan v. Bass, 562 S.W.2d 385 (Mo.App.1978). Appellate jurisdiction was determined by the filing of the notice of appeal and is in this court. See also City of Webster Groves v. Institutional & Pub. Emp. U., 515 S.W.2d 444 (Mo.1974); State v. Perry, 499 S.W.2d 473 (Mo.1973); State v. Bascue, 485 S.W.2d 35 (Mo.1972); Whealen v. St. Louis Soft Ball Ass'n, 356 Mo. 622, 202 S.W.2d 891 (1947); Brock v. Steward, 519 S.W.2d 365 (Mo.App.1975).

The appellant was born April 29, 1948, in Jonesboro, Arkansas. It is not clear from the record where he had spent his life, but it does appear that he was familiar with and had been employed in Southeast Missouri, and in particular the Campbell, Missouri, area. He had picked fruit in that area and in Florida. He completed the 10th grade and while in the Navy completed what he termed the equivalent of one and one-half years in college. He had been married, but at an undisclosed time was divorced from his wife who had custody of their four children. In the early part of 1976 he started living with Connie Flowers who he said was his common-law wife. Her background too is vague, but she had for some period of time been familiar with and lived in the Campbell, Missouri, area. Much of the time they lived out of their car. On October 14, 1977, a son was born to this couple.

One James Bundy lived near Campbell, Missouri. Only by inference it seems he was engaged in business there, apparently including a tavern. Late on February 19 or in the early morning hours of February 20, 1977, Bundy was attacked in the kitchen of his home. A violent struggle ensued and it may clearly be inferred that he was hit on the head with a 16 ounce pop bottle which shattered. A trail of blood led from the kitchen through the yard to the gravel road in front of the house. At approximately 9:15 a. m. on February 20, 1977, his body was discovered beside a country road about three miles south of Campbell. He had bare feet which appeared to be stained from the burnt stubble in a field in the area. His hands were in handcuffs behind his back. He had been shot three times in the head. One .32 caliber bullet was recovered from his head and two dug from the ground underneath his head. Again by inference, it is established that Mrs. Bundy was at home at the time of the attack and described the assailant as "big as an ox". An intensive investigation followed, but until the appellant's letter to Prosecuting Attorney Baker, about which more will be said later, the authorities had no real lead to the person or persons involved in the Bundy death.

On April 23, 1977, one Ira Smith who also lived in the area was lured into his shop. There he was killed by a blow to the head and robbed. Two days later the defendant was arrested in Texas and returned to Missouri where he was tried and convicted of the Smith murder. He was sentenced to life imprisonment. His conviction was affirmed. State v. Garrett, 566 S.W.2d 516 (Mo.App.1978). On November 3, 1977, the appellant was taken to the penitentiary under his sentence for the Smith slaying.

Connie Flowers then established living quarters near the penal institution in which the appellant was confined. She visited the appellant regularly, bringing the little boy with her. According to the appellant on her January 2, 1978, visit she announced she was leaving, but didn't say where she was going or who she was going with. Upon hearing this the appellant says he was so worried about her and so worried about the little boy that "his nerves went". He reported to the hospital and was started on tranquilizers. He sought help from the counselor.

From some motive, which will be discussed later, he then tried to involve Connie Flowers in a criminal prosecution. He first reported her activities in marijuana. These reports produced no results. Then on January 9, 1978, he wrote the Prosecuting Attorney of New Madrid County, implicating Connie in stealing a car and the murder of Ira Smith and asking "that justice be done and the guilty be prosecuted." He then wrote a series of letters to the Public Defender expressing his concern that Connie was not caring for the little boy, implicating her in the Smith murder and asking help in seeing that she was prosecuted. He also related that his religion compelled him "to tell the truth and let God take care of us all." These letters were unsuccessful. In the meantime the appellant had apparently learned Connie's address in California and instigated an investigation of the status of his child. By letter dated April 20, 1978, the Division of Family Services of Tulare County, California, advised the appellant they found no evidence of child abuse or neglect.

Nevertheless, the appellant persisted in his efforts to instigate a prosecution against Connie. On April 29, 1978, he wrote a letter to the Prosecuting Attorney of Dunklin County. This letter opened: "You people were right when you thought the Fraziers killed a man by the name of Bundy." It should be noted that Connie's maiden name was Frazier. He then related how he and Connie came back from Florida in the first part of February. Connie's brother reported that a man in the community would pay $1000 to have Bundy killed. The three talked to this man who paid them $1000. He related he then passed out because of "drugs and dope". He remembered waking up to the sound of a gun and Connie cursing him because she and her brother had to kill Bundy. They threw the gun in a flood ditch and he and Connie went back to Florida. He went on to relate that when they came back to Missouri she told him to prove he was a man he should rob and kill Ira Smith "whitch (sic) we did". He gave Connie's California address and pleaded that Connie be stopped before she kills someone else or hurts the son. He concluded, "I have to clear my conscience before it runs me crazy, I can't stand these nightmares anymore."

Highway Patrolman Plunkett and Deputy Sheriff Dearing talked informally with the appellant in Jefferson City on the morning of May 4th. That afternoon he was given a polygraph test. There was no evidence concerning the results of that test. On May 5th, the appellant made a video tape confession in which he related some additional details of the murder. On May 6, the appellant was returned to Kennett. On the return the group stopped for toilet purposes at the place where the body was found without mention of that fact to the appellant. The stop was made to see if the scene would jog the appellant's memory. Commencing at 6:40 p. m. that night he gave an extensive interview concerning the crime in which he supplied additional details. This interview was recorded. Thereafter, Connie Flowers and Donnie Frazier were separately charged with the Bundy murder. A joint preliminary hearing for Connie Flowers and Donnie Frazier was held on June 2, 1978. At this preliminary the appellant's court appointed attorney was present. The appellant chose to testify and again, in a more succinct manner, related the events of the murder. As will be further noted, the details of these events were expanded in the video tape and still further in the recorded statement. In each he said his memory was limited because of his intoxication from drugs and alcohol. In each he attempted to place himself in a passive role, and in the latter said he pleaded with Connie not to shoot Bundy. It was in the recorded statement that he remembered entering the Bundy dwelling and helping to carry the unconscious man to the car.

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