State v. Harley

• Decision Date: 23 September 1976
• Docket Number: No. 9681,9681
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard E. HARLEY, alias Stephen Allen Young, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 288

543 S.W.2d 288

STATE of Missouri, Plaintiff-Respondent, v. Richard E. HARLEY, alias Stephen Allen Young, Defendant-Appellant.

No. 9681.

Missouri Court of Appeals, Springfield District.

Sept. 23, 1976.

Motion for Rehearing or Transfer Denied Oct. 8, 1976.

Application to Transfer Denied Dec. 13, 1976.

William J. Fleischaker, Public Defender, 29th Judicial Circuit, Joplin, for defendant-appellant.

John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before STONE, P. J., and HOGAN and TITUS, JJ.

HOGAN, Judge.

Defendant Richard E. Harley, alias Stephen Allen Young, was found guilty of first-degree felony murder as defined and denounced by § 559.010, RSMo 1969, V. A.M.S. ¹ His punishment was assessed at imprisonment for life and he appeals.

The case involves the robbery of a supermarket and the killing of a hostage taken by the defendant. Fairly stated in accordance with the result reached, the evidence was: That Foodtown No. 5 is a supermarket located on Seventh Street between Jackson and Connor Streets in the City of Joplin, Missouri. Seventh Street runs east and west; Jackson and Connor Streets run north and south.

During the afternoon of July 9, 1973, defendant parked his car on Connor Street just west of Foodtown. He entered the store from the 'back' (north) side, approached Mildred Stanley, an employee, and asked if she were in charge. Mrs. Stanley said she was not. Defendant asked to see the manager, and was directed to the stockroom at the rear of the store. The 'head clerk', a Mr. Jenness, was called on the intercom.

Defendant met Jenness at the front of the store, and asked about employment. Jenness said he was not in charge of employment, whereupon defendant 'showed (Jenness) the flash of a gun', told Jenness that 'this was a holdup' and ordered Jenness to the stockroom. Defendant then ordered Jenness to have all the money brought to the stockroom. Upon Jenness' instruction, Mrs. Stanley gathered the money from the 'office', most of the money from the cash registers and put it in a green bag marked 'First National Bank'. She took the money bag to the stockroom. Defendant told her '(d)on't look at me and throw the money on the floor.' Mrs. Stanley did as she was told.

The defendant then advised Jenness, Mrs. Stanley and two stockroom employees that he was going to take a hostage. For reasons not immediately apparent, defendant asked the name of the youngest checker. Told that Barbara Conrey was the youngest checker, defendant had her paged on the intercom. Mrs. Conrey came to the stockroom. Defendant then said, according to Mrs. Stanley, that he was not a 'sex fiend' or 'sex maniac' and would not harm Mrs. Conrey; that if the police were not called for 30 minutes (according to Jenness, for an hour), defendant would then release Mrs. Conrey, call the store and tell the employees where she had been released.

The Joplin City Police Department had been informed, by whatever means, that the robbery was in progress, and several police vehicles were dispatched to the scene. Upon trial, the defendant's movements after he left the Foodtown Market were retraced in laborious detail, which need not be set out here. After the defendant had traveled six to nine blocks north and west to the intersection of Fifth Street and Maiden Lane, he found his escape route blocked and his car, driven by Mrs. Conrey, was stopped on the north side of Fifth Street, a short distance east of the roadblock.

Defendant was apprehended during a sort of television cops-and-robbers imbroglio. Detective Fuhr, who had followed the defendant directly from Foodtown in an unmarked vehicle, testified that when he saw defendant's vehicle stopped on Fifth Street, he got out of his car, went to a nearby police vehicle equipped with a loud-speaker, and started moving toward the defendant's automobile. Mrs. Conrey was behind the steering wheel and defendant was seated to her right, 'close enough to have body contact.' As Fuhr drove forward, Mrs. Conrey 'yelled' at him to stop or the defendant would kill her. Fuhr stopped his vehicle, stepped behind it, and addressed the defendant over the loud-speaker. He identified himself as a police officer; he began asking questions to determine precisely who was in the defendant's car. Mrs. Conrey identified herself--'spelled her last name'. As he was asking, Fuhr saw the defendant holding what appeared to be a dark-colored revolver with white handles 'just right up against' Mrs. Conrey's head. Fuhr advised the defendant 'there was no way out from where he was', but Mrs. Conrey, apparently relaying defendant's remarks, again stated that if the roadblock were not removed, defendant would kill her. Defendant emphasized his intention by firing three shots out the left window of his car.

The Joplin police officers discussed various alternatives, including a substitution of hostages. This alternative was vetoed by the Chief of Police, but the officers did tell the defendant that the roadblock would be removed if Mrs. Conrey were released. Defendant refused. Relaying his demands through Mrs. Conrey, the defendant told officers that if the roadblock were not removed in 90 seconds, he would kill Mrs. Conrey. Fuhr was not close enough to the defendant's car to hear clearly, but got the impression that the defendant then began a 'countdown'. Shortly thereafter, Fuhr heard a 'small pop', like a small caliber muffled shot, and at the same instant, two 'larger' explosions. Mrs. Conrey's head went forward and then back, and at the same time defendant fell to his right, throwing his hand up in the air. Fuhr and Detective Forney then went to the defendant's car, found that Mrs. Conrey had been shot in the head, and that the defendant appeared to be injured. Fuhr located the defendant's pistol, a .22 caliber revolver with white handles, lying in the street near the right side of the car.

The extraneous firing--the two 'larger' explosions--which immediately preceded Mrs. Conrey's demise was apparently the result of two attempts by police officers to snipe the defendant. Detective Forney, who was near defendant's car when Mrs. Conrey was killed, testified that he saw Mrs. Conrey 'slump to the left' and 'at this time' a shot was fired 'from (his) left' which started a 'spinning motion' on the defendant's part; 'almost simultaneously' there was another shot from the north (defendant's right) which shattered the glass on the 'passenger's side' and thereafter defendant's pistol 'flew out of (the defendant's) hand and dropped down to the pavement.' The shot from Forney's left appears to have been fired by Officer Gary Box, one of the several officers present; the shot from the north (Forney's right), which shattered the windshield, apparently was fired by Detective McAfee. Officer Box's shot went through the roof of the car and lodged in the side; Detective McAfee's shot, as noted, shattered the right window of defendant's car and inferably caused the defendant to drop his pistol. Neither of the two shots fired by the officers struck the defendant or Mrs. Conrey.

It was stipulated that after Mrs. Conrey was taken from the defendant's automobile, she was first taken to a Joplin hospital, then to a Springfield hospital, where she was pronounced dead. The State had the evidence of Dr. Victor Carnes, a pathologist who performed an autopsy on Mrs. Conrey's body on July 10, 1973. Dr. Carnes testified that his only abnormal finding was a head wound, in the back of the head, slightly to the left of the midline and about the level of the ear. The wound was a bullet wound; examination of the cranial contents showed that the bullet had immediately penetrated Mrs. Conrey's skull and had richocheted inside her skull so as to penetrate both the left and right hemispheres of the brain and had come to rest barely within the brain substance above Mrs. Conrey's right eye about halfway down her forehead. Dr. Carnes stated that the bullet wound was the cause of Mrs. Conrey's death and that in his opinion she was in normal health prior to being shot. It was shown beyond doubt that the bullet taken from Mrs. Conrey's skull had come from the defendant's pistol. Other facts, as relevant, will be noticed in the course of this opinion.

In this court the defendant has briefed and argued two assignments of error. Both assignments deal with alleged error in giving and refusing instructions. The State has answered these contentions as presented. Our inspection of the record discloses, however, that on the day the verdict was received, October 10, 1973, defendant was granted 30 days to file a motion for new trial. No extension of this time appears in the record. The motion for new trial was not filed until November 13, 1973, 34 days after reception of the verdict and entry of the order granting 30 days in which to file the motion. Neither the State nor this court can waive the mandatory requirements of Rule 27.20(a). ² We must hold that the motion for new trial is a nullity and preserves nothing for review. State v. Howard, 476 S.W.2d 587, 588 (Mo.1972); State v. White, 439 S.W.2d 752, 753(1) (Mo.1969); State v. Nelson, 526 S.W.2d 56, 57(1) (Mo.App.1975). This court has, of course, the discretionary power to review the record for plain error affecting substantial rights pursuant to Rule 27.20(c). Because the defendant has received two life sentences for crimes committed in the same transaction, and because failure to instruct on all defenses supported by substantial evidence may constitute plain error, State v. Randolph, 496 S.W.2d 257, 261(4) (Mo. banc 1973), we shall, in this instance, review the record for plain error. Preliminarily we note 1) that in general, instructional error is not 'plain error' unless the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice, State v. Bridges, 491 S.W.2d 543, 547(4) (Mo.1973); ...