State v. Holzwarth, 57926
| Decision Date | 10 March 1975 |
| Docket Number | No. 57926,57926 |
| Citation | 520 S.W.2d 17 |
| Parties | STATE of Missouri, Respondent, v. Wendy Loreen Seidler HOLZWARTH, Appellant. |
| Court | Missouri Supreme Court |
Brunson Hollingsworth, Alice L. C. Kramer, Hillsboro, for appellant.
John C. Danforth, Atty. Gen., Karen Iverson, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, for respondent.
This is an appeal from defendant's conviction and judgment sentencing her to five years for robbery 1 and consecutive life sentences on two counts of first degree murder. (Appeal taken May 17, 1972; jurisdiction retained pursuant to order April 9, 1973). We reverse and remand, because of error in the prosecutor's final argument.
The facts are that the bodies of Tex and Joyce Redden were found in their home in Cedar Hill, Jefferson County. Mrs. Redden had been stabbed and shot. Mr. Redden had been shot. $750.00 cash had been taken from their home. Mrs. Redden ran a house of prostitution and there was evidence that defendant, Wendy Holzwarth had worked for the Reddens for a short time prior to the murders as a prostitute.
Defendant was convicted of the murders as an accomplice. It was never contended, nor was there evidence, that defendant actually wielded either knife or gun. The state's evidence at defendant's trial showed that her two companions, Ray Webb and Kenneth Parnell (Terry) Rose, had admitted murdering Tex and Joyce Redden.
There was evidence that on the afternoon of August 8, 1971, defendant and two young men arrived in an automobile at the Redden home and that Mr. and Mrs. Redden were there at the time, as was a third person, Irene Petrovich, who left while the others were talking about some clothing and a suitcase which defendant said she had left behind when she was working for Mrs. Redden.
The evidence without which the state would not have made a case against defendant was a tape recorded statement which defendant had given to the assistant prosecuting attorney. The statement showed that prior to coming to the Redden house on August 8, 1971, defendant had been in Pennsylvania with two male companions, the above mentioned Ray Webb and Terry Rose. The statement contained the following questions and answers as to the events of the crime:
'Q. This is in Quakertown, Pennsylvania, is that right?
'A. Yes, sir.
'Q. Okay, all right.
'A. So, we stayed there, and we copped the first thing the next morning. And I don't know how it got involved about bringing up Joyce and Tex, but they did it anyway.
'Q. You and Ray and Terry planned to go to Missouri and rob or you call it 'rip off'?
After they arrived in St. Louis the trio went to the Reddens. Defendant's statement as to the events that followed at the Redden house was:
'Irene (Petrovich) was there. She gave me back the ten dollars she owed me . . . Terry backed the car up so she (Irene) could get out . . . She got out and Tex came outside. I asked him if I could go inside to use the bathroom, and he said yes. So, I went in the house and used the rest room.
'Then I went out and sat in the car. Ray and Terry and Tex were talking about the bike, and, I don't know, something about it, and Tex asked anybody if they wanted a beer. And I don't drink cause I got a bad ulcer, but that's beside the point. I heard a shot and turned around from the car and saw Ray with a gun in his hand, yelling 'go in the house and kill her; go in the house and kill her'. And I just completely went panic stricken, terrified, I didn't know if I was coming or going or nothing. I heard a shot in the house from the outside.
'Q You heard several shots outside, didn't you?
Mrs. Petrovich returned August 10, at which time she discovered the bodies of Mr. and Mrs. Redden and that one of the Redden cars, a Corvette, was missing. Subsequently, defendant and Terry Rose were apprehended in Palo Alto, California and returned to Missouri.
While defendant makes a number of claims of error, 2 we proceed first to that pertaining to the prosecutor's closing argument where he read and argued to the jury the statutes on excusable and justifiable homicide, defenses which were not raised by the defendant.
Defense counsel's entire theory of defense was that defendant had no involvement with the shooting; that she was a bystander with no intent to hurt anyone and that the language appearing in the statement that they were going to 'rip off' were words put in defendant's mouth by the assistant prosecutor in his framing of the questions; that defendant's references in her statement to 'we' was because she was with the two men but was not intended to signify that she participated in any of their acts; that the state itself brought out the fact that Webb admitted killing the man and Rose admitted killing the woman; that the defendant came along to get her clothing and was outside in the automobile when the killings took place; that while she did go in the house afterwards and steal the money, that could not be robbery because both Mr. and Mrs. Redden had been killed before she entered the house.
By instruction No. 5, the court instructed the jury that 'when two or more persons enter upon an unlawful undertaking with a common purpose to aid and assist each other in whatever may grow out of the undertaking, each is responsible for everything which may proximately result from such unlawful purpose, whether contemplated at the time the arrangement was made or not and whether actually performed by all or any one of the participants or any one of the said persons.' Then by instruction No. 7, relating to the death of Mr. Redden, the court instructed the jury that if 'some person, other than the defendant' wilfully, unlawfully, etc., assaulted Redden with a loaded pistol discharging the same and thereby inflicting mortal wounds on Redden from which he died 'and that the defendant was present at the time and at or near the place where the above acts were committed, knew that they were unlawful, and intentionally aided, abetted, assisted or encouraged the person who committed the acts', then the jury would find the defendant guilty of first degree murder. There was a similar instruction with regard to the death of Mrs. Redden.
The prosecuting attorney, at the outset of his argument, told the jury that
The prosecutor then called attention to instruction No. 5, saying that such instruction 'would be deemed to bring the participants under the theory' on which the state was proceeding; that one could be a party to a crime by going along with it even though saying nothing.
The prosecutor then read to the jury the statute defining first degree murder and argued that the jury must find two facts to find defendant guilty on both counts of first degree murder; first, that there was a plan or conspiracy to rob the Redden home, and second, that defendant participated in the plan or helped the other two in commission of the robbery. The prosecutor conceded that there was no evidence that the defendant shot or stabbed either one, but said there was no need for such evidence if the jury would follow the instructions of the court.
In the trial of the case defense counsel had sought by cross examination of the assistant prosecuting attorney to cast doubt on defendant's tape recorded statement, pointing out that at the time it was obtained, defendant was undergoing drug withdrawal symptoms; that defendant described herself as a 'stoned junkie' and that outside of the tape recorded statement which defense counsel considered unreliable, there was nothing to show any participation by defendant although it was clear her two companions had committed the crime and that they would pay for it. In his argument to the jury, defense counsel stressed that the jury must first find that there was a conspiracy to commit a robbery in which defendant was involved and that the murders must be a result of that conspiracy.
Such were the points of contention before the court and jury when the prosecutor got up to close. In his closing argument, the prosecuting attorney returned first to instruction No. 5, pointing out that it said that people who join in the joint enterprise share the consequences. He argued that defendant was the navigator on the trip from Pennsylvania to Missouri, saying that her fingerprints had been found on road maps in the automobile in which she and the two men arrived at the Redden house. The prosecutor urged that the jury return a verdict based solely on the law of the case as the judge had given it to them.
Then, with no preliminary, the prosecuting attorney interjected the following: The prosecutor then proceeded to read the statute on justifiable homicide, Sec. 559.040, RSMo 1969, V.A.M.S., pausing after each specification in the statute of what constituted justifiable homicide to argue that such was 'not applicable in this situation' and declaring that the jury could not find justifiable homicide.
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