State v. Martin

• Decision Date: 26 April 1983
• Docket Number: No. 13054,13054
• Citation: 651 S.W.2d 645
• Parties: STATE of Missouri, Respondent, v. Robert Scott MARTIN, Appellant.
• Court: Missouri Court of Appeals

Page 645

651 S.W.2d 645

STATE of Missouri, Respondent, v. Robert Scott MARTIN, Appellant.

No. 13054.

Missouri Court of Appeals,

Southern District,

Division Four.

April 26, 1983.

Motion for Rehearing or to Transfer

Denied May 13, 1983.

Application to Transfer Denied

June 30, 1983.

Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, Gary C. Riley, Shafer, Gilliland, Davis, McCollum & Ashley, Odessa, Tex., for appellant.

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

FLANIGAN, Judge.

A jury found defendant Robert Scott Martin guilty of the offense of capital murder, § 565.001, ¹ and he was sentenced to imprisonment for life without eligibility for probation or parole for 50 years. The victim was Vesta Martin, defendant's stepmother. Mrs. Martin was fatally shot in her home near Waynesville by James Murphy at approximately 11 p.m. on May 15, 1981. The state's evidence showed that Murphy, who admitted the killing, did so pursuant to a "contract" between Murphy and Ron Wood, and that Wood, in hiring Murphy to do the killing for $10,000, did so at the direction of defendant and with money provided by defendant. Defendant appeals.

Defendant's first point is that the trial court erred in receiving into evidence, over defendant's objection, testimony concerning "the purported contemplated theft" of a Mercedes automobile "involving defendant, Murphy and Wood" because such evidence was irrelevant and constituted evidence of "other crimes" whose prejudicial effect outweighed its probative value.

Most of the challenged evidence involving the Mercedes was elicited from state's witnesses Wood and Murphy. ² The Mercedes conversation took place "near the end of April," 1981, apparently on April 30 or May 1, at an auto salvage yard in Lebanon. Before that challenged conversation is described it is necessary to set forth some antecedent events.

Mrs. Martin's husband, defendant's father, died in 1980 and he left her an estate of approximately half a million dollars. Defendant, who was experiencing financial difficulties, knew that the will of Mrs. Martin provided that upon her death defendant would receive 1/3 of her estate and the other 2/3 would go to defendant as trustee for his two sons.

In March 1981 defendant became a close associate of Ronald Wood. Defendant knew that Wood had a criminal record which included a conviction for attempted murder. Defendant told Wood that he was having trouble with his stepmother over some money which he felt rightly belonged to him. Defendant complained that Mrs. Martin refused to sell some commercial real estate which he felt should be sold. In mid-April defendant asked Wood if he could find someone to murder Mrs. Martin and Wood agreed to do so.

Pursuant to defendant's request Wood contacted one Wagoner and asked if he was interested in committing a "contract murder." Wagoner was unreceptive but Wood asked him if James Murphy, an ex-convict, would do the act. Wood had known Murphy for several years. Wagoner said he would contact Murphy and did so.

On some date prior to the Mercedes conversation defendant was in Springfield with a business associate when the latter was having dealings with the Mercedes owner. Defendant saw the Mercedes owner take some money out of two bank bags which were in the trunk. Later defendant told Wood that the trunk contained "around $80,000." Wood and defendant "decided to get somebody to rip off the Mercedes and get the money." On the day prior to the salvage yard conversation Wood telephoned Murphy and made arrangements to meet him in the salvage yard the next day.

Defendant and Wood went to the salvage yard and defendant was introduced to Murphy. The three men talked about "ripping off" the Mercedes. This was their first topic of conversation. Defendant told Murphy he would pay him $1,000 to steal the car. This conversation was held in the back portion of the salvage yard. While the three men were walking toward the front, Wood asked Murphy "if Wagoner had asked Murphy if he wanted to do something," and Murphy said he had talked to Wagoner. According to Wood, Murphy did not want to "talk in front of" defendant because "the car deal was not a big deal but the murder was a big deal." Pursuant to Murphy's suggestion, Wood and Murphy withdrew 50 or 100 feet away from defendant and proceeded to discuss the contract killing. Wood told Murphy that the victim was a woman and not a man as Wagoner had previously informed Murphy. Wood told Murphy that Murphy would receive $10,000 for the killing but Murphy "did not give [Wood] a definite answer that day." Defendant and Wood then left the salvage yard and Wood told defendant about the Wood-Murphy conversation.

Later Murphy agreed to do the contract killing and Wood, with money provided by defendant, paid Murphy $500 a few hours before the killing. After the murder Wood, using $4,500 provided by defendant, paid Murphy $4,500. The balance of $5,000, which Murphy was to be paid in 30 days, was never paid.

Testifying in his own behalf, defendant denied complicity in the contract killing and claimed that the money given by him to Wood, and in turn delivered to Murphy, was a part of an innocent business transaction between defendant and Wood. Defendant admitted that he was present when Wood and Murphy discussed the theft of the Mercedes but defendant said, "I knew what the discussion was going to be about and I told them I really did not want to be involved in that."

Two conversations, minutes apart, took place at the salvage yard. Defendant was a participant in the first conversation but not in the second. Defendant does not challenge the admissibility of the conversation between Wood and Murphy in which he did not participate. His position is that the Wood-Murphy-defendant conversation, dealing with the Mercedes, was inadmissible because it constituted evidence of "the irrelevant 'other crime' of conspiring to steal an automobile." ³

"A criminal defendant has the right to be tried only for the crime or crimes with which he is charged.... The admission of evidence of offenses unrelated to the cause on trial breaches that right because it may result in a conviction founded upon crimes of which the defendant is not accused. Thus, the long-established general rule is that proof of the commission of separate and distinct crimes is inadmissible unless it has some legitimate tendency to establish that the defendant is guilty of the crime with which he is charged.... Specifically, such evidence is admissible to prove the crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial." (Emphasis added.) State v. Shaw, 636 S.W.2d 667, 671-72 (Mo. banc 1982).

The excellent briefs of the parties discuss the various exceptions to the general rule and, predictably, take opposing views on their applicability. Defendant claims that the exceptions regarding motive, intent, the absence of mistake or accident, and identity, do not support the admissibility of the challenged evidence and the state argues otherwise. The merits of the foregoing arguments need not be considered because this court holds that the evidence was admissible for the reason, also briefed by the parties, that it qualifies under the "common scheme or plan" exception and that the trial court did not abuse its discretion in receiving it.

"Where there is a conspiracy between two or more parties, formed for the purpose of committing crime, and several crimes are committed in pursuance of the general plan, such crimes are so related to each other that the proof of one tends to prove the other, and, on the trial of a defendant for the commission of one, the others may be shown." State v. Kolafa, 291 Mo. 340, 236 S.W. 302, 304 (1922).

In Kolafa defendant was convicted of stealing a Ford automobile. The offense took place on September 8, 1917. The state's evidence showed that two other men, Ehrenberg and Biehlich, were defendant's accomplices. The state introduced evidence that two other vehicles were stolen by the three men, one of which was stolen on November 23, 1917. Biehlich testified that the three men had agreed to steal three cars, one for each conspirator. The court pointed out that it was not necessary to allege a conspiracy to commit the crime in order to prove that it was committed in pursuance of a conspiracy. Although the conspiracy was not the crime charged, it was an incident to it and the means by which it was accomplished. The court said the jury had the right to consider the evidence of the other two thefts as tending, in connection with other evidence, to show the commission of the crime charged. The court said, at p. 305, "Evidence of crimes other than those charged, committed by the same parties, is admissible for the purpose of proving a conspiracy or a common scheme."

In State v. Meller, 382 S.W.2d 671 (Mo.1964), the defendant was convicted of stealing a steer. The offense took place on March 17, 1963, and involved two accomplices, Fenton and Steinmetz. The state introduced evidence that the same felonious trio stole a cow and calf on February 23 and eight hogs on February 25. The court held that the testimony of the accomplices "relating to offenses close in point of time, when coupled with the testimony of both Fenton and Steinmetz concerning the initial meeting at which it was agreed that if they would steal cattle, he, defendant, would show then how to sell them, was admissible ... to show knowledge, intent or design in the commission of the offense charged for which the defendant was on trial.... All of these acts to which Fenton and Steinmetz testified tended to show that defendant and his accomplices did in fact carry out their previous...