State v. Henderson

• Decision Date: 03 February 1984
• Docket Number: No. 13157,13157
• Citation: 666 S.W.2d 882
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Judy HENDERSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 882

666 S.W.2d 882

STATE of Missouri, Plaintiff-Respondent, v. Judy HENDERSON, Defendant-Appellant.

No. 13157.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 3, 1984.

Motion for Rehearing or to Transfer

Denied Feb. 29, 1984.

Application to Transfer Denied

April 16, 1984.

Frank V. DiMaggio, Asst. Public Defender, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Presiding Judge.

A jury found defendant Judy Henderson guilty of capital murder, § 565.011, RSMo 1978, and she was sentenced to imprisonment for life without eligibility for probation or parole for 50 years. Defendant appeals. Each of defendant's three points challenges the admissibility of certain evidence introduced by the state over defendant's objection. Defendant does not challenge the sufficiency of the evidence to support the verdict.

The victim was Harry Klein and the offense and death occurred on July 13, 1981, near Springfield, Missouri. Klein, a Springfield jeweler, was previously acquainted with defendant and it is a reasonable inference that there was a romantic involvement, at least from Klein's standpoint. Klein and defendant, driving separate cars, had dinner together during the early evening of July 13, 1981. Defendant's "boy friend," Greg Cruzen, concealed himself behind the front seat of defendant's car. Leaving the restaurant in their separate cars, defendant and Klein drove to a rural area where Klein was fatally shot.

The state produced no eyewitnesses to the murder. There was, however, ample evidence to support a finding by the jury that Klein was murdered by defendant, acting alone or with Cruzen, for the purpose of obtaining a ring and other items of jewelry which Klein had on his person. Each item of jewelry had traits which made it identifiable.

State's witness Donald Littlejohn, a bondsman, testified that "shortly after" 11:00 p.m. on the night of the murder Cruzen, who was a business associate of Littlejohn, came to the latter's office in Springfield. Defendant accompanied Cruzen to Littlejohn's office. She stayed in the car while Littlejohn and Cruzen talked for a few minutes and then she joined them. Defendant had sustained a bullet wound herself at the time of the murder.

Littlejohn testified that defendant and Cruzen told him that they had murdered Klein and that they had removed Klein's jewelry from his body. They wanted Littlejohn's help in moving Klein's body, a request which Littlejohn said he rejected. They were also interested in Littlejohn's appraisal of the severity of defendant's wound which apparently was minor. Cruzen told Littlejohn that he and defendant were going to St. Louis where they would see a doctor. Littlejohn also testified that he knew that Cruzen and defendant intended to go on to Alaska.

On July 19, 1981, defendant and Cruzen flew to Fairbanks, Alaska, and remained in that state until they were arrested by the Fairbanks police on December 18, 1981. Shortly after their arrival in Alaska defendant and Cruzen received a package which they themselves had mailed from Missouri and which contained Klein's bloodstained jewelry. After cleaning the jewelry, defendant and Cruzen sold one item, a money clip, gave away another item, a watch, and were disappointed to learn that a stone in a ring which they thought was an expensive diamond was in fact an imitation diamond.

Defendant asserts that the trial court erred in permitting the state to introduce, over defendant's objection, these three items of evidence: (1) testimony of state's witness Devon Sherwood, an attorney, with respect to a conversation which Sherwood had with Littlejohn on July 15, 1981, at Springfield; (2) testimony of state's witness Loretta Hudspeth concerning a statement made by Cruzen at Fairbanks, Alaska, in late July 1981, in the presence of defendant, Chuck Schumann, and the witness; (3) testimony of state's witness Paul Keller, a detective with the Fairbanks Police Department, concerning $30,000 worth of "quaaludes" which the witness had discovered during the course of the arrest of defendant and Cruzen in Fairbanks on December 18, 1981.

Defendant's first point is that the testimony of attorney Sherwood, with regard to the contents of the Littlejohn-Sherwood conversation on July 15, 1981, was inadmissible because it was "hearsay, was repetitive of Littlejohn's prior testimony, was self-serving, and had no probative value."

Through several witnesses the state showed that defendant was with Klein during the hours immediately preceding the murder. The testimony of other witnesses showed defendant's flight to St. Louis and Alaska and her receipt and disposition of the bloodstained jewelry. Littlejohn, however, was perhaps the state's principal witness for it was he who recounted the incriminating statements which Cruzen and defendant made to him on the night of the murder.

Defendant did not testify. After the state rested, defendant offered witnesses whose testimony tended to implicate Littlejohn in the murder. Defense witness Ricky Choate, a convict who had shared a cell with Cruzen following the murder, testified that in August of 1981 Littlejohn showed Choate some diamond rings which Littlejohn said he "got from the Klein killing." Choate testified that Littlejohn told Choate that Littlejohn "had a guy from St. Louis kill Klein."

Earlier, during the direct examination of Littlejohn by the prosecutor, Littlejohn testified that he did not inform law enforcement authorities of the Littlejohn-Cruzen-defendant conversation until May, 1982. Although Littlejohn had talked to law officers prior to that time, he had not informed them of that conversation "because of the nature of my business and secondly because of my friendship to Greg Cruzen."

Without objection, Littlejohn testified as follows: "When Klein's body was discovered I waited one day after I had pondered over this and then I contacted my attorney, Devon Sherwood, here in Springfield and told him I needed to talk to him and told him I knew who I thought had killed Klein. I went to see Sherwood and I told him about this particular incident. I asked Sherwood if it was necessary that I come forward and disclose the information that I knew."

Littlejohn also testified that he had an understanding with the prosecutor that "because of my not disclosing as to who I knew had committed the crime I would not be charged with any crime as far as knowing about it--that's in exchange for my testifying and coming forward."

During lengthy cross-examination by defense counsel, Littlejohn testified that in November 1981 he told detectives that Cruzen had telephoned Littlejohn six times from St. Louis on the three days immediately following the murder. Littlejohn said, "The officers told me that they heard there was a contract out on Cruzen by me and that is that I was going to kill Cruzen. I said I did not have a contract on Cruzen and if it came to killing him I was capable of doing it myself." Littlejohn denied showing Choate jewelry and asking him to sell it. He denied that he told Choate that "I hired a guy from St. Louis to kill Klein." He also denied other portions of Choate's testimony which implicated Littlejohn in the Klein killing.

Also on cross-examination Littlejohn testified that he told attorney Sherwood that he, Littlejohn, was not involved in the murder. Littlejohn said that Sherwood advised him that he did not have "to come forward" with the information which defendant and Cruzen had given him with regard to their participation in the murder. Also on cross-examination Littlejohn testified that he had been interviewed, by detectives investigating the Klein murder, on August 3, 1981, and November 9, 1981, but he did not tell them at that time of his July 13, 1981, conversation with Cruzen and defendant. He testified that he did not report that conversation to the authorities after defendant and Cruzen left his home. In answering a series of individual questions, ¹ he testified that he did not report the matter to the authorities on the next day or the following day or during the month of July or August or September or October or December 1981.

Attorney Sherwood was the next witness called by the state. Before Sherwood testified defense counsel objected to his testimony with regard to the Littlejohn-Sherwood conversation "for the reason that we believe that to be self-serving as to Littlejohn's testimony,--self-serving and trying to bolster his own witness by his own testimony." The objection was overruled.

On direct examination Sherwood testified that Littlejohn was his client and that two days after the Klein murder Littlejohn told the witness that Littlejohn had something serious that he needed to discuss. "I asked [Littlejohn] what the general nature of it was and [Littlejohn] told me at that time that Mr. Cruzen and Judy Henderson had come to him the night of the killing of Mr. Klein and had told him that they did it."

Sherwood also testified that based on legal research he later advised Littlejohn that "as a matter of good citizenship" perhaps Littlejohn should inform the authorities but that Littlejohn "was not, himself, guilty of any crime by not voluntarily going forward without inquiry having been made of him. But if inquiry was made of him, then he would have to make the statements as he made them to me."

As the foregoing demonstrates, this was the procedural situation when Sherwood testified: Littlejohn had testified, during the state's case, with regard to the Littlejohn-Cruzen-defendant conversation of July 13, and with regard to the Littlejohn-Sherwood conversation of July 15. During cross-examination Littlejohn was asked if he had made prior statements to Ricky Choate which were inconsistent with his trial testimony and Littlejohn had denied making them. The cross-examination of Littlejohn, as set forth in footnote 1,...