State v. Lingar, 68156
| Decision Date | 17 March 1987 |
| Docket Number | No. 68156,68156 |
| Citation | 726 S.W.2d 728 |
| Parties | STATE of Missouri, Respondent, v. Stanley LINGAR, Appellant. |
| Court | Missouri Supreme Court |
Daniel T. Moore, Dale E. Nunnery, L. Joe Scott, Poplar Bluff, for appellant.
William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.
The State charged appellant, Stanley Lingar, with first degree murder by information on March 14, 1985, and filed its notice of intention to seek the death penalty on December 31, 1985. Following a change of venue from Ripley County, the cause proceeded to a jury trial on March 12, 1986, in the Circuit Court of St. Francois County. The jury found appellant guilty of first degree murder; he was sentenced to death. Appellant appeals both his conviction and sentence.
Because the sentence of death was imposed, this Court is vested with exclusive appellate jurisdiction. Mo. Const. art. V, § 3. We affirm both the conviction and the sentence.
At approximately 1:10 a.m. on the morning of January 6, 1985, Thomas Scott Allen, a high school junior, left his girlfriend's house, intending to return home before his 1:30 a.m. curfew. He ran out of gas on the way home. As he waited beside his jeep on the shoulder of Highway 160 in Ripley County, a blue Mustang approached, driven by appellant and carrying David Smith, appellant's friend, and a group of hitchhikers they had picked up earlier. Lingar stopped and made inquiry. Scott told Lingar he had run out of gas; Lingar offered to drive Scott to a gas station in town. The hitchhikers left the car. Scott got into the back seat of the Mustang; Lingar, Smith, and Scott drove into the City of Doniphan, purportedly looking for an open gas station. Finding no station open in town, Lingar drove out of town, ostensibly still looking for gasoline.
As appellant drove out of town, he began talking in a strange accent, saying "It sure is a bloody f______ mess." Smith responded in a similar vein. Lingar headed west toward Lingo Lake. On the way, he told Scott to take off his winter coat. Scott refused; Lingar told Scott that if he didn't do as he was told, he, Lingar, would not take him back to town. Scott removed his coat. When they arrived at Lingo Lake, Lingar used similar threats to force Scott to remove all of his clothing.
As Scott was sitting nude in the backseat, Lingar ordered Scott to masturbate. Scott again refused; Lingar again threatened not to take him back to town. When Scott had difficulty complying with Lingar's order, Lingar drove to his parents' house, and while Smith and Scott waited in the car, appellant retrieved a .22 automatic rifle from inside. Lingar returned to the car, pointed the rifle at Scott and said, "Now I'll bet you're going to do what I say without arguing."
Lingar drove back to Lingo Lake, parked, and again ordered Scott to masturbate. Scott asked permission to urinate outside the car. Lingar granted Scott's request, got out of the car himself, laid the rifle on the roof of the Mustang, and shot Scott in the back.
Scott fell to his knees, but managed to pull himself into the driver's seat of the car. Attempting to escape, Scott tried to start the car; because he failed to disengage the clutch, the car would not start. As Scott continued to attempt to start the car, Lingar went to the passenger side, stuck the rifle in through the open door, and shot Scott in the head. Scott fell to the ground on the driver's side. Again he tried to get up, Lingar shot him a third time. Scott attempted to rise again. Complaining that Scott was still alive, Lingar grabbed a tire jack from the trunk and struck three or four blows to Scott's head.
Once more, and with greater and greater difficulty, Scott tried to get up. Lingar, frustrated by Scott's tenacious grip on life, started the car, backed it up and ran into Scott, not once, but twice. Finally, Lingar and Smith drove away from Lingo Lake, leaving the still naked Scott to die on the ground from his wounds.
From the lake, Lingar and Smith drove to Eddie Lingar's house. There, they discussed the situation with Lingar's brother, and decided to dispose of the body. Lingar and Smith returned to Lingo Lake, found Scott's body, redressed it, placed it in the trunk of the Mustang and drove it to a bridge over the Eleven Point River. Hoping that the swift current in the river would wash it away, Lingar and Smith threw Scott's body over the bridge. The next morning, Lingar and Smith attempted to clean the blood out of the Mustang, discarded some of Scott's personal effects which were left in the car, and burned the forearm and handle of the rifle which Lingar had used to kill Scott. Then they returned to Lingo Lake to remove the bloody snow from the site of the killing.
The next morning, Monday, January 7, 1985, Lingar and Smith sold a pickup truck and "pawned" the Mustang to a Sherman Chambers. With the money obtained from Chambers, they drove to Bowling Green, Kentucky, where they disposed of the rest of the rifle. 1 On Tuesday, January 8, 1985, Sheriff Pepmiller, as part of the investigation began when Scott did not return home on January 6, discovered the Mustang at Chambers' salvage yard.
From Kentucky, Lingar called his parents. Upon learning that the authorities wanted to talk to him, Lingar called Sheriff Pepmiller from Bowling Green and agreed to return to Doniphan. Upon returning to Ripley County, Lingar and Smith each gave a statement. Based on those statements law enforcement officers obtained a warrant to search the Mustang. 2 In the car, law enforcement officers subsequently found a .22 caliber shell casing, as well as blood stained carpet and paneling in the trunk. All blood stains were consistent with Scott Allen's blood. The water patrol recovered Scott's body from the river on January 14.
Lingar was charged with first-degree murder and given notice that the State intended to seek the death penalty.
This case went to trial March 12, 1986. The jury found appellant guilty of first-degree murder. During the punishment phase of the trial, the jury imposed a death sentence upon appellant, finding as a basis for imposing capital punishment that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved torture or depravity of mind, § 565.032.2(7), RSMo 1986, and that the murder was committed while appellant was engaged in the perpetration of a kidnapping, § 565.032.2(11). Following a pre-sentence investigation, the trial judge sentenced appellant to death. Appellant appeals his conviction and sentence.
Appellant claims that the trial court erred in denying his motion for judgment of acquittal on the ground that the State's evidence was insufficient to prove venue. Specifically, appellant argues that the State failed to prove the location of Lingo Lake, and that because law enforcement officials from three different counties were involved in the investigation, the jury could reasonably conclude that the crime occurred in any one of those counties.
While venue must be proved, 3 it is not an integral part of an offense and thus need not be proven beyond a reasonable doubt or by direct evidence; instead, venue may be inferred from all the evidence. State v. Garrett, 416 S.W.2d 116, 118 (Mo.1967). On review, the standard for whether venue has been established is whether it could reasonably be inferred from the facts and circumstances that the crime with which the defendant is charged occurred within the trial court's jurisdiction. State v. King, 662 S.W.2d 304, 308 (Mo.App.1983).
Section 565.001.4, RSMo 1986, establishes venue in this case. It provides in pertinent part:
Persons accused of committing offenses against the laws of this state, except as may be otherwise provided by law, shall be prosecuted:
(1) In the county in which the offense is committed; or
(2) If the offense is committed partly in one county and partly in another, or if the elements of the crime occur in more than one county, then in any of the counties where any element of the offense occurred.
David Smith testified that he and appellant initially picked up the victim on Highway 160, one mile from Doniphan, in Ripley County; they drove to Lingo Lake, located approximately three miles from appellant's parents' house, also in Ripley County; when Scott was unable to perform the sexual act demanded by appellant, they drove to appellant's parents' house where appellant picked up a rifle; the three then returned to Lingo Lake where Scott was subsequently murdered.
From this evidence it is reasonable to infer that the crime was committed in Ripley County or that appellant deliberated 4 the crime when he picked up the gun there. Either conclusion is sufficient for purposes of venue under § 565.001.4(1) and (2). The point is denied.
Appellant next argues that the trial court erred in overruling his motion for judgment of acquittal on the ground that the State failed to identify appellant at trial as the man charged with the crime.
It is axiomatic that the criminal agency of the accused must be proved. State v. Murphy, 415 S.W.2d 758, 760 (Mo.1967). The evidence must show that the defendant is the person who committed the crime. State v. McIntosh, 546 S.W.2d 756, 758 (Mo.App.1977). The procedure used at trial to identify the defendant lies within the prudent discretion of the trial court. State v. Hubbard, 659 S.W.2d 551, 559 (Mo.App.1983).
Appellant does not claim insufficiency of the evidence with regard to eye witness' description of or ability to observe him as the perpetrator of the crime. Cf. State v. Cook, 463 S.W.2d 863 (Mo.1971). Instead, he argues that the State should have provided an in-court identification to establish him as the man standing trial. Although appellant did not take the stand, and no witness physically indicated his presence in the courtroom, we find that the evidence was sufficient...
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