State v. Lingle

• Decision Date: 16 June 2004
• Docket Number: No. 24812.,24812.
• Citation: 140 S.W.3d 178
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Harold R. LINGLE, Defendant-Appellant.
• Court: Missouri Court of Appeals

140 S.W.3d 178

STATE of Missouri, Plaintiff-Respondent, v. Harold R. LINGLE, Defendant-Appellant.

No. 24812.

Missouri Court of Appeals, Southern District, Division Two.

June 16, 2004.

Motion for Rehearing or Transfer to Supreme Court Denied July 8, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Circuit Court, Greene County, Henry W. Westbrooke, Jr., J Craig Johnston, Asst. State Public Defender, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Mazza Follett, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Judge.

Harold R. Lingle ("Defendant") was charged by information with five counts of committing the class A felony of murder in the first degree, in violation of § 565.020.¹ These five charges stemmed from the strangulation deaths of Erin Vanderhoef ("Vanderhoef") and her three children: Darlene Vanderhoef, Jimmy Vanderhoef and Christopher Franklin ("the children"). The evidence presented at trial showed Defendant and two other individuals, Richard DeLong ("DeLong") and Stacie Leffingwell ("Leffingwell"), collectively planned and carried out these five murders.² A jury found Defendant guilty on all five counts, and he received five concurrent sentences of life imprisonment without the possibility of probation or parole. In Defendant's appeal, he contends the trial court erred by failing to order Delong to testify on Defendant's behalf and by overruling Defendant's request for a mistrial after the State had concluded the first portion of its closing argument. We affirm.

I. Statement of Facts

Defendant does not contest the sufficiency of the evidence to support his convictions. Therefore, a brief review of the evidence adduced at trial, viewed in a light most favorable to the jury's verdicts, will be sufficient. See State v. Starr, 998 S.W.2d 61, 63 (Mo.App.1999); State v. Rowe, 838 S.W.2d 103, 106 (Mo.App.1992).

In January 1999, DeLong, Leffingwell and their son, Scooby, were living together in an apartment in Joplin, Missouri. Defendant and his wife lived in the same apartment complex. Vanderhoef lived in a house in Springfield, Missouri, with her children.

Leffingwell was DeLong's current girlfriend, but he previously had been romantically involved with Vanderhoef. In 1998, Vanderhoef periodically came to Joplin and sought to reestablish her prior relationship with DeLong. On some occasions when Leffingwell was out of town, Vanderhoef engaged in sexual relations with DeLong. Leffingwell, who was dying from AIDS, was furious with Vanderhoff for pursuing DeLong and attempting to replace Leffingwell as Scooby's mother.

DeLong and Leffingwell came to Defendant's apartment on Monday evening, January 18, 1999. While there, they told Defendant they intended to go to Springfield the next day and kill Vanderhoef in order to get her out of their lives. Because her children would be witnesses to the event, DeLong and Leffingwell also intended to kill the children. They asked Defendant if he wanted to participate. He initially declined, but he changed his mind when DeLong said he would give Defendant an "8 ball" of methamphetamine in exchange for helping to kill Vanderhoef and her children.³

On Tuesday, January 19, 1999, Defendant drove to Springfield with DeLong and Leffingwell. During the trip, the three discussed what methods they could use to kill the children. Defendant did not want to participate in murdering the children, so DeLong and Leffingwell proposed that he take Vanderhoef to the store to keep her occupied while DeLong and Leffingwell killed her children. Defendant agreed to do so.

When Defendant, DeLong and Leffingwell arrived at Vanderhoef's house in Springfield, she and the children were all there. As planned, Defendant took Vanderhoef to Dillon's Supermarket while DeLong and Leffingwell strangled the three children. When Defendant and Vanderhoef returned to her house, DeLong told her the children had been disciplined and were in their rooms. While Defendant and Vanderhoef sat beside each other on the couch watching television, DeLong moved behind Vanderhoef on the pretext of putting a necklace on her. As he attempted to wrap a cord around Vanderhoef's neck, she resisted by grabbing at the cord. She and Defendant fell off the couch onto the floor. Vanderhoef was able to resist being strangled until Defendant grabbed her hands and pulled them down to her waist. By doing so, Defendant gave Leffingwell the opportunity to stuff a rag in Vanderhoef's mouth so she could not scream. DeLong and Leffingwell then tightly wrapped the cord around Vanderhoef's neck and tied it off. Defendant continued to hold Vanderhoef's hands at her waist while she struggled. After about 10 minutes, Vanderhoef passed out. DeLong and Leffingwell bound Vanderhoef's feet with another cord, pulled them up tightly behind her back and wrapped the end of this cord around her neck so the weight of her feet and legs would help suffocate her. It took another 10 minutes for Vanderhoef and her unborn child to die from asphyxiation. After committing these murders, Defendant, DeLong and Leffingwell returned to Joplin. Later that evening, DeLong gave Defendant the promised "8 ball" of methamphetamine for participating in the murders, and Defendant used these drugs.

Additional facts will be provided when necessary to our analysis of the two points presented by Defendant's appeal.

II. Discussion and Decision

A. Point I

In Defendant's first point, he contends the trial court erred in not ordering DeLong to testify on Defendant's behalf. This contention of error arose in the following fashion.

After Defendant was arrested, he gave a videotaped statement to police. During this statement, Defendant admitted planning the five murders with DeLong and Leffingwell and agreeing to participate in exchange for drugs. Defendant also admitted holding Vanderhoef's hands down at her waist while DeLong and Leffingwell strangled her. Later in this statement, however, Defendant claimed he only helped strangle Vanderhoef because DeLong threatened to kill Defendant if he did not help. Defendant also said that after he and DeLong returned to Joplin on the day of the murders, DeLong threatened to kill Defendant if he told anyone what they had done.

Prior to the beginning of Defendant's trial, DeLong already had been tried and convicted of five counts of first degree murder. Although DeLong gave a videotaped statement to the police, he did not testify at his own trial. Before Defendant's trial began, his attorneys sought to depose DeLong. During this deposition, DeLong refused to answer any questions. At trial, DeLong was the first person called as a witness during Defendant's case. Defense counsel asked for a hearing out of the presence of the jury because "[w]e've previously tried to take his deposition, and he refused to answer my questions.... So I would ask that Mr. DeLong be brought into the courtroom so we can determine what his intentions are with respect to giving testimony in this courtroom today." The trial court granted this request. Thereafter, defense counsel, Ms. Beimdiek, elicited the following testimony from DeLong:

Q. Would you state your name, please?

A. Richard Ivan DeLong.

Q. Richard DeLong? You're the same Richard DeLong who's been convicted of five counts of murder in the first degree?

A. Yes, ma'am.

Q. And you're currently serving five life-without-parole sentences in the Missouri Department of Corrections?

A. Yes, ma'am.

Q. All right. And I want to ask you some questions about the events that occurred on January the 19th, 1999, in Springfield, Missouri.

A. Okay.

Q. All right. Specifically, I want to ask about some threats that you made to Mr. Lingle during the course of those events. Can you tell this Court whether, in fact, you made any threats to Mr. Lingle during the course of the events of January the 19th, 1999?

A. I'd rather not even talk about it, really. I mean — sorry.

Q. Are you asserting any kind of a privilege in refusing to answer my questions, or are you simply stating that this is a preference that you have not to talk about this?

A. Just a preference, ma'am.

MS. BEIMDIEK: Your Honor, given that, I would ask that Mr. DeLong — ask a follow-up question.

Q. (By Ms. Beimdiek) Are there any questions, Mr. DeLong, that I could ask you here today that you'd be willing to give me an answer to about the events that took place on January the 19th, 1999, and the days following?

A. No, ma'am.

After this exchange took place, defense counsel asked the trial court to instruct DeLong to answer her questions. The prosecutor then elicited the following testimony from DeLong:

Q. Mr. DeLong, you don't know exactly what the Fifth Amendment privilege against self-incrimination is, do you?

A. No, sir.

Q. And that's the same answer you gave us at your deposition quite a while back?

A. Yes, sir.

Before issuing a ruling, the trial court heard arguments from defense counsel and the prosecution while DeLong was still on the witness stand. The prosecution argued DeLong's statements, taken as a whole, sufficiently manifested an intention not to testify that invoked his Fifth Amendment rights.⁴ In particular, the prosecution noted DeLong still could incriminate himself by being compelled to testify about what took place on January 19th. If DeLong admitted giving Defendant methamphetamine for participating in the murders, DeLong could be charged with distribution of a controlled substance in Jasper County. Defense counsel argued DeLong's use of the word "preference" was not an invocation of any Fifth Amendment privilege; however, she did not respond to the prosecutor's argument that DeLong could incriminate himself if he admitted giving Defendant methamphetamine for participating in the murders. At the conclusion of these arguments, the trial court asked DeLong one additional question and then issued its ruling:

THE COURT: Mr. DeLong, even if I...