State v. Lindsay, WD

• Decision Date: 01 April 1986
• Docket Number: No. WD,WD
• Citation: 709 S.W.2d 499
• Parties: STATE of Missouri, Respondent, v. Jerry Roland LINDSAY, Appellant. 36005.
• Court: Missouri Court of Appeals

Page 499

709 S.W.2d 499

STATE of Missouri, Respondent, v. Jerry Roland LINDSAY, Appellant.

No. WD 36005.

Missouri Court of Appeals Western District.

April 1, 1986.

Rehearing Denied May 22, 1986.

Dan K. Purdy, Osceola, for appellant.

William Webster, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., SHANGLER, J., and SOMERVILLE, Sr. J.

SHANGLER, Judge.

The defendant Jerry Lindsay was convicted by a jury of the second degree murder of one Betty Malson, and was sentenced to a term of fifty years. The court received into evidence the transcribed preliminary hearing testimony of absent witness for the prosecution, Charles Clapp. The defendant contends there was an absence of due diligence by the prosecutor to procure the attendance of the missing witness, and hence the admission of the testimony given by Clapp in the previous criminal proceeding denied the defendant the right of confrontation under the Sixth Amendment of the United States Constitution and Article 1, § 18(a) of the Missouri Constitution.

On Easter Sunday, in April of 1983, the Whitt brothers discovered a body afloat in a strip pit near Appleton City. They went to the police and returned with them to the site, joined by Sheriff Collins of St. Clair County. The body retrieved from the pit was of a nude woman with a heavy log chain wrapped around the neck. The autopsy disclosed that the body was of an obese woman and examination revealed a laceration on the right side of the chest, nine centimeters long. The wound extended into the right pleural cavity. The body and organs were in a state of deterioration, but the pathologist was able to give opinion that the death was caused by a forceful stab wound to the chest. A dental comparison revealed that the victim was Betty Malson.

The prosecution proved the offense through a number of witnesses, the principal among them was Charles Clapp, who was missing at the time of trial. His evidence--testimony given at the preliminary hearing and [at the insistence of the defense], prior statements given to the police--was received by the court after the prosecution proved cause for its admission. It was these statements which directed the police inquiry to the body recovered months before near Appleton City, and which then ended in the identification of the victim through dental charts. Clapp had come to the Grandview police station on September 21, 1983 to initiate a complaint of assault against a former wife. In the course of that narrative of complaint, Clapp disclosed to the officer King the details of an event the year before in November of 1982. The statement related to his knowledge of the murder, in that November, of a woman named "Betty" in a strip pit near Appleton City.

The essential proof of the offense against defendant Lindsay, however, was the transcript testimony of witness Clapp given at the preliminary hearing. On November 26, 1982, the defendant Jerry Lindsay phoned Clapp to come over to his house. A woman there had $6,000, and there was a job he wanted Clapp to do. [Clapp was married to a Lindsay niece some time ago, and had known him for 20 years.] Lindsay had been insistent about a visit for the past week, so Clapp agreed. When he arrived at the residence, at about 4:00 p.m., Lindsay was alone. Soon, Sharon Lindsay [wife of defendant] and Betty Malson drove up in a white Vega. Clapp [according to his testimony] did not know Betty Malson, and she was introduced simply as "Betty." The four of them commenced to drink. Clapp confined his consumption to beer--a total of 3 or 4 for the evening--but the others had whiskey also. Later on, Ted Lindsay [brother of defendant] joined them and brought a guitar for Clapp to tune. Ted and Jerry drank heavily and soon commenced to fight. They screamed and shouted at each other and when Clapp attempted to intervene, he was told to shut up.

Jerry and Sharon became angry at Betty because she refused the use of the Vega to purchase more liquor. Jerry then reached for a bottle of Valiums which belonged to Betty, who remonstrated: "You s.o.b., those are mine." She grabbed for them and they fought over them. The defendant Lindsay slapped Betty, slammed her down on the couch and told her to shut her mouth. She retorted: "Don't hit me, you s.o.b. I'll call the police on you." The defendant grabbed her and slapped her and said: "You ain't going to the police on me." [Lindsay was then on probation on suspended concurrent sentences of 25 years each for rape and for sodomy.] The strife ceased for a while, but the argument between them rekindled and Jerry slapped her again. The contention between the brothers Jerry and Ted also resumed. It was then Betty remarked to Clapp: "Get me away from these sick-o's." The comment was overheard by one of the Lindsay boys who reported it to the defendant, his father. At that, the defendant went over and slapped Betty. It was then that Clapp and Betty attempted to leave, but the defendant refused to allow Betty to leave, and hid the telephone from her, as well. Then, some minutes later, Clapp got into his vehicle [a pickup truck] to leave, but Lindsay, with a stream of vile invective, shouted at Clapp: "[Y]ou ain't going nowhere ... you ain't leaving me here with this drunken bitch." Finally, the three of them--Clapp, Lindsay and Betty Malson--left in the Clapp pickup, but not before one of the Lindsay boys, at the direction of his father, placed a log chain in the back of the truck.

They stopped for fuel in Grandview [where Lindsay argued with the station attendant], and then headed south toward Appleton City. Lindsay directed Clapp to a strip pit behind the cemetery. Here, Lindsay told Betty to get out of the truck and to disrobe because they were going to "screw" her. She protested, but complied. Lindsay took Betty behind the truck, and placed a knife to her throat. Lindsay acted as though in a frenzy, telling Betty that she wasn't going "to call the police on him." Lindsay then told Clapp to put the chain on Betty, and as he did so, he told Betty to hide and that he would talk to Lindsay. Lindsay grabbed Clapp and scolded him--that Clapp didn't care if "this bitch gets me 50 years." Clapp put the chain around the neck of the victim, but Lindsay was dissatisfied--"that will come off"--and clamped the log hook onto the chain, and screamed and slapped at her as he did. Clapp begged Lindsay for them all to leave, but he told Clapp to shut up and resumed to scream at Betty. Clapp thought Lindsay was going to beat Betty just to scare her and went over to intercede, but before he got there, Lindsay hit her in the stomach and she fell down. By the time Clapp reached them, Betty had disappeared and Lindsay was standing up with a knife in his hand. When Clapp next saw Betty, she was standing in the water of the strip pit below the road on which the truck stood. Lindsay then rushed past Clapp [who was crouched down by the road], threw the knife down, jumped into the water and held Betty down under the surface. When Lindsay emerged from the water, he told Clapp: "You can't save her. It's too late. She's gone." Clapp searched for her in the water, but without success. Lindsay and Clapp then left the cemetery, and returned to Kansas City.

The next day, Jerry and Sharon Lindsay came by the Clapp residence in the white Vega owned by the victim. They brought some of her belongings and burned them in the fireplace. Two days after the homicide, the Lindsays and Clapp drove to the scene in the white Vega to look for the shoes of the victim, [which they found]. While there, they picked up some beer cans. Lindsay had mentioned the death incident to Clapp several times since the event, and threatened Clapp should he tell any one.

The transcript of the cross-examination of Clapp at the preliminary hearing was then read into evidence by defense counsel, as were several other statements by Clapp to the police, a handwritten statement dated October 11, 1983 signed by Clapp, among them. These sources of proof disclosed a number of inconsistencies. They all agreed, however, as to these essentials: On that day in November of 1982, Lindsay summoned Clapp to his residence; once there, he was introduced to "Betty." Those present--Ted Lindsay, Jerry Lindsay, Sharon Lindsay and Betty--all drank and argued quite a lot. Lindsay was annoyed with Betty for her threat to report him to the police. Later, Clapp, Jerry Lindsay and Betty left in the pickup truck. They drove to Appleton City where, on a road next to a strip pit and near the graveyard, Jerry Lindsay fastened a chain around the naked Betty, struck her [apparently with a knife] and held her under water in the strip pit. ¹ Lindsay then emerged from the water, exclaimed that he had killed Betty, and threatened Clapp not to talk of the incident.

The testimony and statements given by Clapp were corroborated by Bill Miller. He had lived with the Lindsay family intermittently during the past five years and worked with Lindsay on construction jobs. Miller knew Betty Malson. Lindsay had introduced him to her when Miller helped Lindsay move some of her furniture into the Lindsay house. Miller never saw her again. When he asked Lindsay about her, Lindsay first told him that she had gone to Texas with a man, but later admitted he had "done away" with Betty Malson. Lindsay described that he and Clapp put a chain and logging hooks around Betty. Miller identified the chain found around the victim as a chain he had seen Lindsay use. Lindsay told Miller also that he stabbed the victim twice and threw her into the pit there, at Appleton City. Lindsay mentioned the incident to Miller virtually every month. Miller saw Lindsay drive the Malson car. Lindsay told him he had purchased the white Vega from Betty, but later admitted that he had signed the car over to his wife who then gained title on a forged signature. Miller acknowledged a varied criminal...