State v. Howery

• Decision Date: 01 April 2014
• Docket Number: No. ED 99608.,ED 99608.
• Citation: 427 S.W.3d 236
• Parties: STATE of Missouri, Respondent, v. Douglas J. HOWERY, Appellant.
• Court: Missouri Court of Appeals

427 S.W.3d 236

STATE of Missouri, Respondent,

v.Douglas J. HOWERY, Appellant.

No. ED 99608.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 1, 2014.

Craig A. Johnston, Assistant Public Defender, Columbia, MO, for appellant.

Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.

KURT S. ODENWALD, Judge.

Introduction

AppellantDouglas Howery(“Howery”) appeals from the judgment of the trial court following his conviction by a jury of first-degree murder, Section 565.020.¹Howery argues on appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence, accepting the jury's verdict of guilty of first-degree murder, and entering judgment and sentence when the evidence was insufficient to prove that he committed first-degree murder.Howery also contends that the trial court abused its discretion in admitting hearsay evidence, character evidence, and evidence of uncharged bad acts.We affirm the judgment of the trial court.

Factual and Procedural History

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial: Howery and his wife, Betty Howery(“Betty”), lived on a farm in Annada, Missouri, in Pike County.The farm property was originally purchased by Betty in 1984, but she later transferred ownership to herself and Howery jointly after they were married.The farm property had a home on it that was serviced by a septic tank, as well as several outbuildings and sheds.

Betty and Howery had a rocky relationship that involved heated arguments.Betty told her sister that she was thinking about getting a divorce.Betty also told her son, Matthew Higginbotham(“Higginbotham”), that there were problems with the relationship and that she was trying to leave.Betty told Higginbotham that if anything ever happened to her, half of the farm would be his.

In early 1991, Howery began an affair with a woman named Donna.When Donna discovered that Howery was married, she confronted him about his marriage.Howery told Donna that his marriage to Betty was over and that they were getting a divorce.Donna became uncomfortable with their relationship and told Howery that he needed to decide whether or not his marriage to Betty was over.Howery convinced Donna that the marriage was over and they resumed dating in mid–1991.

In November 1991, Betty and Howery's home on the farm in Annada burned down.Betty and Howery received an insurance settlement of more than $214,000 as a result of the fire, and they moved to an apartment in St. Charles.After the fire, Betty and Howery argued about the money they received from the settlement, and Betty appeared upset, nervous, and unhappy to co-workers.

In February 1992, Betty and Howery used a portion of the settlement to purchase a piece of property with a man named Melvin Kinnard(“Kinnard”).Howery and Kinnard were going into business together, although the business was in Donna's name.Around this time, Betty suspected that Howery was having an affair and began calling Kinnard asking for Howery's whereabouts.On February 19, 1992, Kinnard told Howery that he needed to do something about the situation because he would not lie for Howery about his relationship with Donna.At that time, Howery knew Donna was pregnant with his child.

On February 20, 1992, Howery and Donna went to Betty's workplace.Howery instructed Donna to drive Betty's vehicle back to Donna's house.They did not leave another car for Betty, and Donna did not question why they picked up Betty's vehicle.Donna did not see Howery again until the next day.

While at work on February 20, Betty received a phone call that upset her, which had something to do with her account being cleaned out.Betty left work before her shift ended and went with Howery, who picked her up and drove to a title company where they signed documents for the property they were purchasing for the joint business with Kinnard.

After signing the documents at the title company, Howery and Betty drove to the farm in Annada.Betty called her father from an outbuilding on the farm to tell him they would no longer need to borrow the money he was planning to lend them to buy a new home.Howery also spoke on the phone with Betty's father.Howery told Betty's father that he did not want to go into debt and would rather rent than purchase a new home.After Betty spoke with her father, no one but Howery saw or heard from Betty again.

The following day, February 21, Howery called Betty's work and left a message saying that Betty would be taking a vacation day.Howery then picked up Donna and his first words to her were “well now it's on.”When Donna asked what he meant, Howery explained that he and Betty had a fight the night before and that he left Betty at the farm.Howery said he told Betty all about Donna and their plans to move in together.From that day on, Howery spent every night with Donna, and the couple moved in together two weeks later.

On February 23, Betty's sister held an 80th birthday party for their father.When Betty did not show up at the party, Betty's sister called Higginbotham.Unable to contact his mother and concerned for her safety, Higginbotham contacted St. Charles police and made a missing persons report.

St. Charles police contacted Howery about Betty's disappearance.Howery told police that on February 20, he had driven Betty to the farm after they signed the paperwork at the title company.While at the farm, Betty and Howery argued about the insurance settlement money.Howery said Betty allegedly showed him ten to twelve thousand dollars in cash in her purse that she had saved.Howery said that he told Betty it did not matter because they might not be together much longer and that they might be getting divorced.Howery told police that Betty wanted him to take her back to the city to get her vehicle, but that she finally told him just to leave her at the farm.Howery said that Betty told him she would have someone take care of her, so he left her at the farm around 7:45 p.m. with no car.Howery said he returned to the property on the following Saturday and the following Monday to see if Betty was still there, but she was not.

On February 26, police searched the farm with Howery's consent.Howery accompanied the officers during the search and showed them everything on the property.Howery did not alert the police to the property's septic tank.The officers neither knew there was a septic tank on the property, nor did they notice any holes in the ground or an access point to a septic tank.Howery told the officers that he and Betty had gotten into an argument because Betty wanted to buy a new home but he did not want to due to their marital problems and his relationship with Donna.Howery said that Betty became angry when he admitted he was having an affair, but that their argument was only verbal.Howery told the officers that when he told Betty it was time to leave, Betty said she would call somebody that cared.Howery then left Betty at the farm with no means of transportation.Howery further told the officers that after he left the farm, he got all the way back to their apartment but decided to head back to the farm without ever exiting the vehicle.Howery then changed his mind again just before reaching the farm and turned back toward St. Charles.Rather than taking a direct route, Howery went out of his way and drove a longer, indirect route back to St. Charles.When asked why he drove the longer route, Howery first said that he did not know.About 10 minutes later, Howery volunteered that the route he drove would allow him to take some back roads to go back to the farm if he changed his mind again.

Between February 1992 and June 1998, police had no significant leads as to Betty's whereabouts.In 1998, law enforcement officers reviewed the previous reports that were written in 1992 and interviewed some people including Kinnard, who had not been interviewed in 1992.Kinnard told police that sometime after closing on the business property, Howery told Kinnard that Betty “wouldn't be bothering [him] anymore.”The information from Kinnard led to another search of the farm property, this time with cadaver dogs.Police found no sign of Betty.

In 2000, Howery obtained a divorce from Betty, and all the property that he held jointly with Betty was placed in his name.About a month later, Howery and Donna were married.

In 2007, Kinnard sold the farm property to an LLC.In 2008, the new owner hired a work crew to clean up the property.The workers were trying to remove some concrete surrounding a hole in the ground when they discovered an underground septic tank that was approximately six feet wide and eight feet deep.As the workers attempted to remove the septic tank with a lift bucket, the septic tank broke into three pieces and its contents spilled out.A tooth on the lift bucket also broke off.One of the workers went to search for the tooth that had broken off and found a human bone inside the contents of the septic tank.The workers called the police, and more bones were recovered from the contents of the septic tank.Those bones consisted of a human head, jaw, arms, hips, ribs, and vertebrae.DNA testing showed that the bones were the remains of Betty Howery.

Along with Betty's remains, police found a .38–caliber double-barreled derringer handgun, whose partially visible serial number matched part of the serial number of a .38–caliber derringer that belonged to Betty.The bottom barrel contained an expended cartridge while the top barrel contained what appeared to be a live round.Donna later testified that Howery carried a small gun when she met him.After Betty disappeared, Howery told Donna that he finally found a derringer to replace one that he had “got rid of a while back.”

Howery was arrested and charged with first-degree murder.After a four-day...