State v. Luton, 57066

• Decision Date: 10 July 1990
• Docket Number: No. 57066,57066
• Citation: 795 S.W.2d 468
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Delores M. LUTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 468

795 S.W.2d 468

STATE of Missouri, Plaintiff-Respondent, v. Delores M. LUTON, Defendant-Appellant.

No. 57066.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 10, 1990.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 15, 1990.

Application to Transfer Denied Oct. 16, 1990.

Raymond A. Bruntrager, Sr., Neil Bruntrager, Mary Bruntrager Schroeder, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

JOSEPH J. SIMEONE, Senior Judge.

I.

This is an appeal by defendant-appellant, Delores M. Luton from a judgment of conviction entered on July 25, 1989 by the circuit court of Jefferson County, on a change of venue from Cape Girardeau County. Delores M. Luton was charged by an amended information, tried by a jury, found guilty and sentenced by the court to a term of fifteen years in the Department of Corrections and Human Resources for the offense of conspiracy to murder her husband, Wilbur D. "Boots" Luton in violation of § 564.016, a class B felony, punishable pursuant to § 558.011, R.S.Mo.1986. We affirm.

II.

There are two versions of the events of the alleged conspiracy. The state's version is that Mrs. Luton conspired with Bobby Taylor to have her husband killed and contracted with Taylor to carry out the plan. The appellant's version of the scenerio is that it was, in fact, her husband, "Boots" who desired to have her murdered and Taylor who had informed her of this fact told her that he and a mutual friend, David Mansfield, did not want her killed, so that Mrs. Luton met with Taylor to "lure" Taylor into the Luton home, where she could call the police and disclose the plot on her life.

Obviously, the jury believed the state's version for the jury found Mrs. Luton guilty, and rejected the theory of the defense. Of course, that is the function of the jury.

The principal dramatis personae of this scenario involve the appellant, Delores M. Luton, a 59 year old self-made woman who was strong-willed and was a successful businesswoman, owned several businesses, a mini-mall and apartment houses. She had been married to her husband Wilbur D. "Boots" Luton since 1969, and had several children by a previous marriage. Mr. Luton, while not a "wild man," was inclined towards violence to his wife, drank heavily, collected an assortment of guns, and suffered from a rare, probably fatal disease of cranial neurosis. Another principal in the course of events was Bobby Taylor, an undercover agent for Tennessee authorities, and one of the principal witnesses for the state against appellant. A conversation occurred between Mrs. Luton and Taylor. Taylor had a small micro-cassette tape recorder in his pocket and taped the damaging conversation during which Mrs. Luton told him she wanted to have her husband killed, and that she would reward Taylor handsomely for the murder, and gave directions on how the murder should be carried out. Another important person in these events was Jack Swinford, a friend and tenant of Mrs. Luton. He was a principal defense witness. On his cross-examination he discussed a statement that he earlier had given to the police, after Mrs. Luton's arrest. In that statement, he revealed that Mrs. Luton offered him money and other goods to lie for her on the witness stand. This written statement was not given to the defense until after Swinford had testified at trial; it was not turned over to the defense in the course of pre-trial criminal discovery. This failure on the part of the state to disclose Swinford's damaging statement is one of the principal points on this appeal. Another person involved in the events was David Mansfield, a former boyfriend of Mrs. Luton, who was a musician and played at one of Mrs. Luton's businesses. He had been involved in a criminal activity and was convicted for murdering a man.

III.

The facts are very numerous, complex, detailed, and often contradictory. Two points are raised by appellant. First, she contends the trial court erred in denying appellant's motion for mistrial after the testimony of Jack Swinford because the state failed to comply with the Rules of Criminal Discovery and failed or refused to disclose, prior to trial, the damaging statement of Jack Swinford that Mrs. Luton offered him monetary emoluments to lie for her on the witness stand. Second, the trial court erred and abused its discretion in (a) admitting into evidence the damaging micro-cassette audio tape of the conversation between Bobby Taylor and Mrs. Luton when the details of the conspiracy were discussed because it either was inaudible, or contained numerous inaudible gaps so that it was not credible, and (b) permitting the state to utilize a "transcript" of the tape in the state's opening statement and in the cross-examination of Mrs. Luton. Based upon these alleged errors, appellant contends her trial was "fundamentally unfair" and that the cause should be reversed, or at least reversed and remanded for a new trial. We reject both contentions of the appellant and conclude the trial court did not err or abuse its discretion and consequently affirm the judgment of conviction.

IV.

On June 2, 1988, Mrs. Luton was charged by an amended information in the County of Cape Girardeau with "conspiracy to commit murder" acting either alone or in concert with another. The information charged that on or about April 10, 1988, she "agreed with Bobby Taylor that one or more of them would kill Wilbur Luton," and in furtherance of that conspiracy she paid Taylor $2,600 as a "down payment" for the killing, showed him where the murder was to take place, made arrangements to provide him with the murder weapon, and "made arrangements with him to receive the rest of the money after the murder." Several witnesses were endorsed on the information, including certain police officers, Bobby Taylor of Portageville, Missouri and others. Jack Swinford was not endorsed as a state's witness.

Prior to trial, appellant filed a "motion to produce" requesting that the state disclose certain materials and information "within its possession and control" pursuant to Rules "25.03" [not 25.04] and "25.08." The defense requested the state to produce inter alia (a) the names and addresses of the persons the state intends to call as witnesses, "especially the transcription of any taped conversations between Bobby Taylor and Delores Luton," (b) any recorded or written statements made by appellant, (c) any material or information within the possession of the state that tends to negate the guilt of the defendant, (d) any tapes made during the course of the state's investigation, and in paragraph 24(e) requested "copies of all statements in the possession of the State of Missouri or the office of the Cape Girardeau County Prosecutor's office or in the possession of any law enforcement officer involved in the investigation of the incident which gave rise to the charges filed against Defendant which would tend to impeach the credibility of any witness upon which the State of Missouri and Prosecuting Attorney intend to rely upon [in] this trial including, but not limited to statements which contradict other statements by these and other persons." (Emphasis added).

The state responded to the defense's motion to produce. The state endorsed a number of witnesses, including Bobby Taylor, stated that the statements made by Delores Luton to Bobby Taylor have been disclosed, declared that it did not intend to use any expert witnesses, and stated that it planned to "introduce ... (1) the micro-cassette tape of the conversation between Bobby Taylor and Delores Luton, (2) the cash paid by Delores, (3) the "crowbar" and gloves found in the possession of defendant, (4) photographs taken during surveillance of the meeting between defendant and Bobby Taylor, and (5) a transcript of the taped conversation, as well as other items."

On July 27, 1988, a hearing was held on the motion to produce and on a motion for change of venue. During the hearing the court said that the defense was entitled to "everything that is discoverable." At the hearing on the motions, the court denied certain of the requests and granted others. As to paragraph 24, the prosecution objected. As to that paragraph, the following discussion took place:

[Prosecutor ]: Your Honor, I would object to the form of 24.

The Court: He is just asking for all statements.

[Prosecutor ]: Well, no, but he goes on that tend to impeach the credibility of any witness. We have provided him with all statements.

The Court: That takes care of it then; if he's got all statements, he's got all statements.

[Prosecutor ]: It seems to me that it [sic] is asking me to draw a conclusion saying, well these are all the ones to impeach--

The Court: I am not going to require you to draw a conclusion. [The defense attorney] is certainly capable of that ...

[Defense Counsel ]: I would hope so.

On January 29, 1989, a hearing was held on several pre-trial motions to suppress filed by the defense--to exclude confessions and statements or admissions against interest. The prosecutor informed the court that he had given the defense additional statements from "two people" who had been endorsed as witnesses--Brenda Berry and Judy Jusits.

A hearing was held on the motions to suppress the tape recording made by Bobby Taylor with appellant on April 10, 1988. During the suppression hearing, Taylor was shown exhibit 1-A, a transcript of the April 10, 1988 taped conversation, and Taylor testified it "is as accurate, ... to my knowledge, you know," although there were various parts of the tape that one could not hear which was shown by "dots."

The tape was played at the suppression hearing, and Officer Donnie Smith testified that there was no difference from the way it was played on April 10, 1988 and as played at the hearing. He further testified that no alterations had been made. As to the...