State v. Malady, 46750

• Court: Court of Appeal of Missouri (US)
• Citation: 669 S.W.2d 52
• Docket Number: No. 46750,46750
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John MALADY, Defendant-Appellant.
• Decision Date: 03 April 1984

Page 52

669 S.W.2d 52 STATE of Missouri, Plaintiff-Respondent,
v.
John MALADY, Defendant-Appellant. No. 46750. Missouri Court of Appeals,
Eastern District,
Division One. April 3, 1984.

Page 53

James A. Bell, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Presiding Judge.

John Malady appeals from a judgment convicting him of capital murder in violation of § 565.001 RSMo. 1978, pursuant to a jury verdict. He was sentenced to life imprisonment without eligibility for parole for fifty years. The judgment is affirmed.

Appellant Malady raises four points of alleged trial court error. First, he contends that the evidence was insufficient to support a conviction for capital murder because there was no evidence that the killing was intentional or that he reflected upon the matter coolly and fully. The second and third points relied on argue essentially the same point: that the trial court erred in allowing in evidence of Malady's involvement in other crimes. Fourth, appellant maintains that the trial court erred in failing to give the jury an instruction on first degree felony murder.

When the sufficiency of evidence is challenged, the reviewing court is obliged to accept as true all direct or circumstantial evidence favorable to the verdict and all reasonable inferences which may be drawn from that evidence, while ignoring all evidence to the contrary. State v. Lieberknecht, 608 S.W.2d 93, 99 (Mo.App.1980). Viewed by this standard, sufficient evidence was presented to the jury to support the conviction for capital murder.

The theory of the state's case is that Bruce Hegger was slain by Lawrence Rorie and John Malady in retaliation for testimony which Hegger had given to a grand jury.

On the morning of April 14, 1980 Hegger testified before a grand jury which was investigating Rorie in connection with a possible charge of receiving stolen property, a 1970 Ford truck worth over one hundred fifty dollars. See § 570.080 RSMo. 1978. Although Malady was not a subject of the grand jury's investigation, he was connected to Rorie's alleged car theft activities

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through evidence that Malady had loaned Rorie tools, which Malady kept in a black brief case, tools used in stealing automobiles.

After testifying before the grand jury, Hegger went to an apartment shared by Theresa (Tammy) Watkins and Linda Smith, Rorie's and Malady's girl friends. Hegger told Tammy of his grand jury testimony. No reason was given for Hegger's disclosure of his grand jury testimony to Rorie's girl friend who then relayed that information to Rorie.

Still later that day, Hegger met Rorie and Malady in the apartment. Around seven p.m. a man who lived in the apartment above Tammy and Linda's awoke to the sounds of a fight in the apartment below. He looked outside and saw two men, each of whom possessed handguns, pushing a third man into the street. After ripping the shirt off the third man's back, the two men returned to the apartment. The victim staggered across the street, after which the two men, Malady and Rorie, exited the apartment, one of them carrying a dark brief case, and drove off in a red station wagon.

Bruce Hegger, bloody and shirtless, died on the steps of a house across the street and a few houses down from Tammy and Linda's apartment. The cause of death was loss of blood from a gunshot wound to the chest.

In a taped statement which was played to the jury, Malady admitted that he and Rorie were present at the time Hegger was killed, that he carried a black brief case out of the apartment, and that the pair drove off in Malady's station wagon.

Although Malady insisted that Hegger was accidentally shot during a struggle for a gun which Hegger had pulled from under a couch, the state was not bound by the accused's version of the incident. See State v. Goacher, 376 S.W.2d 97, 103-104[9, 10] (Mo.1964). The jury could believe or disbelieve any portion of Malady's statement. Id.

Other circumstantial evidence tends to rebut Malady's contention that Hegger's death was accidental. Not only did Hegger suffer a gunshot wound to the chest, but he was also cut and bruised.

Most notably, Hegger received incised wounds to the sides and back of the head and on the right hand. Incised wounds represent cuts caused by sharp objects rather than stab wounds. The incised wound to the right hand, together with a contusion on the right fourth finger and a bullet wound through the right thumb, are consistent with a theory that the wounds...