State v. Holt
| Citation | 592 S.W.2d 759 |
| Decision Date | 15 January 1980 |
| Docket Number | No. 61260,61260 |
| Parties | STATE of Missouri, Respondent, v. Eugene HOLT, Appellant. |
| Court | Missouri Supreme Court |
James E. Reeves, Caruthersville, for appellant.
John Ashcroft, Atty. Gen., Richard F. Engel, Asst. Atty. Gen., Jefferson City, for respondent.
Patricia Joye Holt was found murdered in her home in Bragg City, Missouri on November 23, 1976. In force on that date were § 559.005, RSMo 1975 Supp., defining the crime of capital murder 1 and § 559.020, RSMo 1969, defining second degree murder. Defendant, husband of the victim, was charged by amended information that he "did then and there willfully, unlawfully, knowingly, deliberately, feloniously, premeditatedly, and of his malice aforethought kill one Patricia Joye Holt by offering to pay one Roger Dale Jackson One Thousand Dollars ($1000.00) to kill Patricia Joye Holt and by providing Roger Dale Jackson with a handgun and the said Roger Dale Jackson at the direction of defendant on the 23rd day of November, 1976 . . . did after accepting defendant's offer, make an assault upon the said Patricia Joye Holt with a loaded handgun inflicting a mortal wound from which she died . . ."
Defendant, tried before a jury, was convicted of second degree murder, sentenced to life imprisonment and appeals. Since a life sentence was imposed, we have jurisdiction, Mo.Const. art. V, § 3, as amended August 3, 1976, effective January 2, 1979.
Defendant on appeal (hereinafter "appellant"), raises a number of points, the disposition of which requires first a statement of the facts, taken from the standpoint of those supporting the verdict.
So viewed, there was evidence of the following before the jury: appellant, thirty-five years old, and his wife operated a small grocery store. Appellant became infatuated with a sixteen year-old, Wanda Sue McAllister. Early in 1976, they became lovers. Appellant several times said he was going to kill his wife, mentioning drowning her, shooting her, rigging the bathtub so she would be electrocuted, and hiring someone to kill her. Roger Dale Jackson, age twenty, a cousin of Wanda, and not overly bright, testified that appellant offered to pay him $1000 to kill Mrs. Holt and also said he would forget about Jackson's unpaid bill at the grocery store.
The Saturday before the killing appellant took Jackson home with him, showed him the gun to use, and told him that the following Tuesday was the day. On Tuesday afternoon, Jackson met appellant at an agreed location behind a school house. Appellant again took Jackson to the house, gave him a handgun, told him where to wait and how his wife would enter the house, and instructed him to drag the body into the bathroom, douse the clothing and bathroom with lighter fluid, turn on the gas stove and leave. Appellant would attend a basketball game at Neeleyville, some fifty miles or so away, and return after it was all over.
Jackson waited for Mrs. Holt, shot her four times in the back, ran out the back door, went home and told his wife what he had done and hid the gun in the attic. Shortly thereafter Jackson pleaded guilty to second degree murder on the understanding he would receive a twenty-five year sentence and would testify against appellant.
Appellant testified in his own behalf and admitted his infatuation and affair with Wanda McAllister, but denied having anything to do with killing his wife, with having hired Jackson to do so, or taking Jackson to the house. It was appellant's position that Jackson was a border-line mental defective, that he was angry with Mrs. Holt because she had refused him a sandwich and soft drink at the grocery store because of his unpaid bill and that his cousin, Wanda, was the one who persuaded him to shoot Mrs. Holt.
Appellant's first point is that the court erred in overruling his motion for judgment of acquittal because the conviction of second degree murder is without evidence to support it; that appellant was charged with a "contract murder" in violation of the capital murder statute; that the finding of guilty as to second degree murder constitutes an acquittal of capital murder and there is no rationale or factual basis under the facts whereby appellant could not have been guilty of capital murder, but guilty of second degree murder.
The jury was given three choices by the instructions: guilty of first degree murder, 2 guilty of second degree murder, and not guilty. Appellant argues that if he hired his wife's killer he is guilty of capital murder that if he did not, he is innocent; that the jury has, in effect, acquitted him of capital murder and hence found he did not arrange the death of his wife and so he cannot be guilty of second degree, either.
It does not follow that by not finding defendant guilty of capital murder the jury did not believe that he arranged the shooting of his wife. The jury could have believed he did, indeed did so believe as shown by instruction No. 6, which set forth what was required to be found to convict of second degree murder, yet decided it would convict him of second degree, not capital, murder. We could speculate that this was because the jury was aware the person who did the shooting, Roger Dale Jackson, pleaded guilty to second degree murder and received a sentence of twenty-five years, and was also aware that on conviction of capital murder (or first degree murder as the instruction put it), the only sentence available would have been life imprisonment without possibility of parole for fifty years. Whatever the reason, the jury had a right to convict on either the capital murder or second degree murder charge, provided there was evidence before the jury to support such a conviction.
This case does not present the problem we addressed in State v. Handley, 585 S.W.2d 458 (Mo. banc 1979). In Handley the two crimes covered by the two principal instructions were different as to intent in the felony murder instruction, no intent to commit an assault was required, whereas in the second degree murder instruction (on which the jury convicted) there had to be an intent to assault the particular guard who was killed. Therefore, if Handley were not guilty of aiding or abetting in the bank robbery (which was the only basis on which he could have been acquitted of that crime under the facts), then he could not be involved in aiding and abetting the assault, because his only connection with the entire affair had to be based on his aiding and abetting the bank robbery (as to which the jury found otherwise).
But in the case at bar, an intent to aid and abet in an assault on the victim was required in both the instruction on capital murder and on second degree murder, although there was a difference as to the intensity or extent of intent between the two. Hence, not finding appellant guilty of capital murder does not foreclose a finding of the necessary intent for second degree murder, conviction of which would permit the jury more flexibility as to punishment. If the jury decides to be lenient under these circumstances, it does not mean it is being inconsistent or that its verdict is without factual basis.
As to whether there was evidence to support a finding of guilt under the instruction submitting second degree murder in the case at bar, the instruction, which was MAI-CR 6.06, required the following:
There was ample evidence to support each required finding. Jackson testified appellant offered him money to kill Mrs. Holt and provided him with a gun to do so. Jackson, his wife and McAllister each testified to expressions by appellant over a period of time that he intended to kill his wife. McAllister testified appellant told her how Jackson was to do it. It is evident that appellant did none of the foregoing in anger, fear or agitation suddenly provoked by the unexpected acts or conduct of his wife; appellant was not even present. And finally, there was ample evidence that appellant acted knowingly and with common purpose with Jackson in the conduct referred to in the earlier paragraphs of the instruction.
So it is not correct that there was no evidence to support a finding of guilt of second degree murder and the contention to the contrary is overruled.
Appellant's second point is that he is entitled to a judgment of acquittal on the ground that the evidence showed that Wanda Sue McAllister caused the fatal shot to be fired and that there is no evidence that he caused the death of his wife. Jackson testified that after appellant left the house, Jackson called McAllister on appellant's telephone while he waited for Mrs. Holt to get home. Jackson also testified that McAllister urged him not to miss and that he would not have killed Mrs. Holt had it not been for this urging by McAllister just minutes before Mrs. Holt arrived home.
There was sufficient evidence for the jury to find that appellant caused the death of...
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