State v. Hanes

• Decision Date: 14 April 1987
• Docket Number: No. 51417,51417
• Citation: 729 S.W.2d 612
• Parties: STATE of Missouri, Respondent, v. William Joseph HANES, Appellant.
• Court: Missouri Court of Appeals

Page 612

729 S.W.2d 612

STATE of Missouri, Respondent, v. William Joseph HANES, Appellant.

No. 51417.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 14, 1987.

Motion for Rehearing and/or Transfer Denied May 12, 1987.

Application to Transfer Denied June 16, 1987.

Richard H. Sindel, Clayton, for appellant.

William L. Webster, Atty. Gen, John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

Defendant, William Joseph Hanes, was convicted by a jury of capital murder, Section 565.001, RSMo 1980, and sentenced to life imprisonment without possibility of parole or probation for fifty (50) years.

On appeal, Hanes contends that the trial court erred in: (1) failing to instruct the jury on second degree felony murder; (2) allowing prosecutor to improperly bolster the state's chief witness' credibility by eliciting testimony regarding a plea bargain between the witness and the state; (3) allowing the prosecutor to examine Hanes and other witnesses concerning unsubstantiated allegations that Hanes planned to kill his wife and in-laws to alleviate his financial distress; (4) submitting instructions numbered 5, 6, 7, and 8 in that said instructions were not supported by the evidence; (5) submitting instruction No. 7 to the jury in that said instruction was in variance with MAI-CR 2d 15.14 for the reason that said instruction failed to inform the jury that the state had the burden of proving the elements of the crime of murder in the second degree beyond a reasonable doubt; (6) in failing to strike the testimony of a state's witness, when twice during his cross examination, he invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution.

We are required by the jury's verdict to set forth the facts and reasonable inferences therefrom in a light favorable to the state. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 937 (1947). John F. Barlow was found dead in his condominium in Clayton, Missouri on October 31, 1981. Robert Daniel Sprouse (a.k.a. Steve Romer) came to St. Louis in August of 1981, in a car he had stolen in Sandusky, Ohio. Upon his arrival he met with Gary Smith, and lived with Smith for a short period of time. It was later in August that Sprouse met the defendant, William Joseph Hanes.

Hanes attempted to aid Sprouse in finding employment at Barnes Hospital, where he was employed, but was unsuccessful. Sprouse finally found a job at the University Club as a waiter. It was there that Sprouse met the victim John Barlow, while waiting on his table. Sprouse told Barlow that he was looking for an apartment closer to the University Club. Mr. Barlow informed Sprouse that he was looking for a young man to stay with him, look after him and occasionally fix a few of his meals. Sprouse was to be compensated by free room and board. This meeting occurred in the latter part of September, 1981. Sprouse decided to move in.

Things worked out at the beginning but later Barlow became jealous of the time Sprouse spent with Mark DeFrenne, Sprouse's homosexual friend. This occurred in early October. Sprouse was very upset with Barlow's interference in his personal life, and discussed this problem with Hanes. Hanes told Sprouse the only way in which to solve the problem was to kill Barlow. Hanes suggested to Sprouse that they should poison Barlow and that Sprouse should take the money that he had coming and that they should split the rest.

It was after this conversation that Sprouse confronted Barlow and threatened to move out. Barlow said he would do anything to keep Sprouse living in the condominium. Sprouse agreed to stay but tested Barlow by taking some of his silver to a coin shop and selling it for five hundred dollars. Barlow stated that he did not mind as long as Sprouse continued to live with him. This occurred on October 23, 1981.

The following day, Hanes called Sprouse and informed him that he was going to drop off some bug killer and powdered poison that should be added to Barlow's food. Sprouse never gave any of the poison to Barlow. Instead, he destroyed it by dumping it down the building incinerator.

On Sunday, October 25, Hanes called Sprouse to accompany him in a search for some more poison. Hanes purchased another poison, a powder, at an Illinois store. Sprouse was given the poison, but again he destroyed it.

On Monday, October 26, Hanes and Sprouse exchanged several phone calls to check and report on Barlow's condition. Sprouse told Hanes that Barlow was not feeling well. Hanes told Sprouse he would be working late that evening but would drop off another poison that should be administered to Barlow. The poison was dropped off but Sprouse destroyed it.

On Tuesday, October 27, Sprouse went to a play and returned around 11:15 p.m. to check on Barlow's condition. Barlow had been suffering from some type of indigestion. The nurse who was staying with Barlow told Sprouse that Barlow was feeling much better and was sleeping soundly.

On Wednesday, October 28, Sprouse made reservations to leave town. Hanes again called Sprouse to check on Barlow's condition. It was then that Sprouse informed Hanes that he was not giving Barlow any poison. Sprouse also told Hanes that he was leaving that evening. Hanes called Sprouse at 8:30 that evening and Sprouse told Hanes that he could come over and help him pack. Hanes arrived sometime after 9:30. At 10:15 the telephone rang and Barlow answered it. Hanes and Sprouse were in the kitchen. Sprouse left the kitchen to see who was on the phone and when he returned Hanes had a small tin can and a large syringe. Hanes informed Sprouse that he was going to let Mr. Barlow die in a painless way. Sprouse made no effort to stop Hanes.

Hanes then filled up the syringe half way with a liquid that had a strong cleaning fluid odor. Barlow was off the phone now and was relaxing and dozing in a chair. Hanes then walked out of the back door of the condominium. Sprouse put his head out of the window because the cleaning solution was making him dizzy. When Sprouse turned around he saw Hanes come through the front door and jump on Barlow's chest, shoving a knee into his stomach and at the same time putting the syringe into his arm. Sprouse and Hanes later moved the body to make it look like an accident. Hanes then began filling the suitcase with Barlow's expensive personal possessions.

Dr. Mary Case of the medical examiner's office testified that the cause of death was a result of a toxic substance (Energine) which had been injected intravenously. She also found fresh fractures of four ribs anteriorly left side, consistent with trauma. She further stated that Barlow's heart disease might very well have caused him to die sooner, but that Barlow's heart was functioning after the injection.

Before we address Hanes' points of error, we are asked first to rule on a motion to dismiss by the state, claiming the appeal is untimely. The motion is denied. Judgment was entered on July 30, 1981 against Hanes. Thereafter, Hanes filed a motion pursuant to Rule 27.26 claiming that his trial counsel was ineffective for failing to file a timely motion for new trial and notice of appeal. The 27.26 motion was granted and the judgment and sentence were vacated. Hanes was resentenced on March 20, 1986. Notice of appeal was filed on March 28, 1986, within the ten (10) day requirement of Rule 78.07. We conclude that notice of appeal was timely filed.

However, Hanes failed to file a motion for new trial pursuant to Rule 29.11(d). Allegations of error to be preserved for appellate review must be included in a motion for new trial. Nothing is preserved for review when defendant fails to file a timely motion for new trial. State v. Dowdell, 583 S.W.2d 253 (Mo.App.1979). Thus, by failing to file a motion for new trial, Hanes has failed to preserve any allegation of error for review. Nevertheless, we review for plain error ex gratia. Rule 30.20. State v. Hitchcock, 652 S.W.2d 889, 890 (Mo.App.1983).

Under plain error review, we will only reverse for prejudicial errors which so substantially affected the rights of Hanes that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983). We note that the strength of the state's case is a prime factor in determining whether a manifest injustice or miscarriage of justice has occurred. State v. Gilmore, 681 S.W.2d 934, 943 (Mo. banc 1984). Here, the evidence of guilt is very strong Hanes admitted injecting energine into Barlow and three witnesses corroborated his confession.

By his first point, Hanes contends that the trial court erred in failing to instruct the jury on second degree felony murder and maintains that the evidence introduced at trial required that the court submit such an instruction. The crucial issue is whether the evidence justified the submission of both conventional murder in the second degree, and felony murder in the second degree. The trial court submitted a conventional second degree murder instruction, Instruction No. 7. The murder occurred in October of 1981 and the instructions given are the 15.00 series of MAI-CR 2d, covering homicides committed ater May 25, 1977. The verdict directing instructions given were:

Instruction No. 5, MAI-CR 2d 15.02, modified by MAI-CR 2d 2.12, Capital Murder. Instruction No. 6, MAI-CR 2d 15.12, modified by MAI-CR 2d 2.12, Murder in the First Degree in Robbery. Instruction No. 7, MAI-CR 2d 15.14, modified by MAI-CR 2d 2.12, Murder: Second Degree, Conventional. Since Instruction No. 7 is the subject of Hanes' points 5 and is set forth:

If you do not find the defendant guilty of capital murder or murder in the first degree, you must consider whether he is guilty of murder in the second degree.

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with him...