State v. Jones, 66697

• Decision Date: 18 February 1986
• Docket Number: No. 66697,66697
• Parties: STATE of Missouri, Respondent, v. Marvin C. JONES, Appellant.
• Court: Missouri Supreme Court

Page 19

705 S.W.2d 19

STATE of Missouri, Respondent, v. Marvin C. JONES, Appellant.

No. 66697.

Supreme Court of Missouri En Banc.

Feb. 18, 1986.

Rehearing Denied March 25, 1986.

C.J. Larkin, Columbia, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant was convicted of capital murder, § 565.001, RSMo 1978 (repealed October 1, 1984, now first degree murder § 565.020, RSMo Cum.Supp.1984), and sentenced to death, and he was also convicted of armed criminal action, § 571.015.1, RSMo 1978, and sentenced to three years in the Missouri State Penitentiary. Original appellate jurisdiction vests in this Court. Mo. Const. art. V, § 3. We affirm.

The evidence presented at trial is not at issue on appeal. The victim, Dorothy Fienhold, was fifty-eight years old at the time of her death. Appellant, who was sixty-three at the time of the trial, had been involved in a stormy relationship with the victim during the couple of years preceding her death. Both appellant and the victim lived in Illinois. By August of 1983, the victim indicated a desire to end the relationship. On Saturday, August 20, appellant and his ex-wife, Iris Jones, observed the victim in the company of another man, and appellant became enraged with jealousy. At 9:00 a.m. the next morning, the victim received a telephone call from the appellant, and the victim's granddaughter overheard the victim exclaim that she was not going to go to Missouri with appellant. The victim told her granddaughter that she was afraid of the appellant. Dorothy Fienhold was not seen alive past 5:00 p.m. that day, August 21, 1983.

The following morning, August 22, Mr. Ousley noticed an abandoned car on his property near Interstate 44 here in Missouri. He watched the vehicle for a little under an hour, and then he went home and called the police. Officers arrived about ten minutes later, at 11:55 a.m. One of the investigating officers, Officer Wilhoit, looked inside the car and observed a "heap of clothes" and "what looked like a white cord that looped out from underneath the clothes that had what appeared to be speckled--blood specks on it." The vehicle was locked, but Wilhoit managed to open the door with a coat-hanger. On the floor mat, he noticed some drops of blood and called for additional assistance. An expanded search of the area turned up a bloody pair of pants and two bloody sheets lying in the brush some fifty to seventy-five feet from the car. He went back to the car and found the victim's purse, with her driver's license and some letters. Wilhoit also found a temporary Illinois registration for the vehicle in the name of appellant. While Wilhoit was searching the car, other officers at the scene located the victim's body in the brush off the side of the road in a wooded area. Officers also located military papers belonging to appellant near the scene of the murder. Two witnesses placed appellant near the scene of the crime.

When the victim's body was found, it was badly mutilated and the face was unrecognizable. Death was caused by two contact gunshot wounds at the point of each Appellant raises four arguments on appeal. Initially, appellant asserts error in the manner in which the jury rendered its decision to impose the death sentence. During the punishment phase of the trial, the jury was instructed in Instruction No. 20 that it could impose a sentence of death only if it found one or more of the following aggravating circumstances:

eyeball, either one of which was fatal. The coroner testified that prior to her death, the victim was badly beaten and suffered a number of broken ribs. Although it was not the cause of her death, she also was manually strangled. There were other contusions and abrasions, which occurred after her death. Further testimony indicated that she had been killed closer to the road and then dragged into the woods.

1. Whether the defendant has a substantial history of serious assaultive convictions.

2. Whether the murder of Dorothy J. Fienhold involved torture or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible or inhuman.

Instruction No. 24 further provided that if the jury decided to impose the death sentence, it must write onto its verdict from the aggravating circumstance or circumstances submitted in Instruction No. 20 which it found beyond a reasonable doubt. The jury decided to impose the death sentence and returned the following verdict form, with the italicized portion representing the handwritten findings by the jury:

VERDICT

JURORS: Use this form only if the punishment fixed by you is death. See Instruction No. 24 for directions as to what must be written into the verdict form if the death penalty is imposed. Use the reverse side of this form if necessary. The foreman's signature must appear at the end of the matter which you designate in writing as the aggravating circumstance or circumstances which all twelve jurors found beyond a reasonable doubt.

As to Count I, we, the jury, having found the defendant guilty of the capital murder of Dorothy J. Fienhold, fix the defendant's punishment at death, and we designate the following aggravating circumstance or circumstances which we find beyond a reasonable doubt:

1. Physical torture of victim by strangulation of neck, broken ribs, various bruises and contusions to body previous to death.

2. Placement of weapon in contact with eye when fatal bullet was discharged.

3. Deliberate mutilation of victim by discharging an additional bullet into other eye.

After determining that the form was not in exact compliance with the instructions, the trial judge resubmitted the case to the jury with directions to follow the instructions. Twenty minutes later the jury sent a note to the trial judge requesting "some clarification of Instructions # 24 and # 20 to proceed." The Judge replied in writing that "I can't instruct further." Shortly thereafter the jury returned its verdict form with the following changes:

As to Count I, we, the jury, having found the defendant guilty of the capital murder of Dorothy J. Fienhold, fix the defendant's punishment at death, and we designate the following aggravating circumstance or circumstances which we find beyond a reasonable doubt:

Physical torture of victim by strangulation of neck, broken ribs, various bruises and contusions to body previous to death.

Placement of weapon in contact with eye when fatal bullet was discharged.

Deliberate mutilation of victim by discharging an additional bullet into other eye.

2. We the jury find that the murder of Dorthy [sic] Fienhold involved torture, was wantonly vile, and inhuman for the above reasons.

Appellant contends that this second verdict is defective because it fails to track the language of the statute and Instruction No. 20, it contains non-statutory aggravating circumstances and indicates some jury confusion.

This Court recognizes that the written findings by the jury did not track the language in Instruction No. 20. The jury was asked only to write the aggravating circumstance or circumstances which it found justifying the imposition of the death penalty. Instead, the verdict form as accepted by the trial judge included the jury's apparent reasons for finding that the murder involved torture and was wantonly vile and inhuman. ¹ We do not agree with appellant's characterization of these first three handwritten lines as non-statutory aggravating circumstances; they are nothing more than the reasons the jury considered in finding the aggravating circumstance recited in the last handwritten line following the number "2," with the number "2" reflecting the aggravating circumstance submitted in Instruction No. 20. This Court was presented with a similar situation in State v. Nave, 694 S.W.2d 729 (Mo. banc 1985), where we found no error because the jury clearly expressed its intent in the verdict form and "sufficiently recited all of the essential elements of the statutory aggravating circumstances submitted." State v. Nave, supra, at 737. Explanatory language indicating the reasons for the jury's finding did not taint the verdict. The same holds true in the case at bar. It should be beyond dispute that the jury clearly intended to impose the death sentence and that it found the second aggravating circumstance submitted in Instruction No. 20. We, therefore, find no error in the verdict.

Ancillary to appellant's argument on this point is the claim that the reasons stated by the jury are insufficient to establish the jury's finding that the murder involved "torture." In its first handwritten line, reprinted above, the jury indicated some of the reasons why it found the murder involved torture. A review of the record indicates that there is sufficient evidence establishing multiple injuries to the body, including a number of broken ribs and an attempt to manually strangle the victim, all occurring prior to the two gunshot wounds to the eyes and other post-mortem injuries. It is also likely, although surely not necessary, that the jury considered the gruesome mutilation of the body, whether occurring post or pre-morten, as indicative of appellant's state of mind and actions prior to the victim's death while she was being strangled and badly beaten. We cannot say that there is insufficient evidence establishing the jury's finding that the murder involved torture.

Next, appellant argues that certain statements made by appellant should have been suppressed because they were obtained after an illegal arrest. Officers at the scene of the murder found military papers with appellant's name and determined that the abandoned car alongside the road was registered to appellant in Illinois, ² and they contacted officers in the Mt. Pulaski Police Department in Illinois. They explained the situation and indicated that they wanted appellant for questioning. Late that afternoon, on ...