State v. McIlvoy
| Decision Date | 09 March 1982 |
| Docket Number | No. 62026,62026 |
| Citation | 629 S.W.2d 333 |
| Parties | STATE of Missouri, Respondent, v. Terry Lee McILVOY, Appellant. |
| Court | Missouri Supreme Court |
Charles B. Blackmar, Thomas P. Howe, St. Louis, for appellant.
John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant was convicted of capital murder, § 565.001, RSMo 1978, 1 and sentenced to death pursuant to § 565.008.1. Jurisdiction for original appeal to this Court is by virtue of Mo.Const. art. V, § 3. In addition to our review for error, the Court will review the death sentence as mandated by § 565.014. We affirm appellant's conviction for capital murder and remand the case for resentencing consistent with this opinion.
In a separate case, Vicky Williams was tried for the same crime, found guilty of capital murder, and was sentenced by the jury to life imprisonment without eligibility for probation or parole for fifty years. See State v. Williams, 611 S.W.2d 26 (Mo. banc 1981). Since the cases involve the same crime, the factual statement of the Vicky Williams case will be adopted to the extent permissible.
At least as early as November of 1978, ... (Vicky Williams) began soliciting various young men to assist her in killing (her husband) Gilbert. Prior to February 1979, two different plans to that end were developed, but neither was implemented for lack of such assistance or for lack of opportunity. Finally, on the evening of February 2, 1979, ... (Vicky Williams) successfully recruited five men, Michael Shane, David Yoebstl, Robert Abel, Ronald Nunnery and Terry McIlvoy, to travel to the Spirit of St. Louis Airport, where Gilbert worked as a security guard, to kill him. All but Yoebstl went in search of Gilbert, but could not get close enough to his truck to complete the task. On the evening of Saturday, February 3, 1979, ... (Vicky Williams) hosted a party while Gilbert was at work at the airport. There was testimony that she told some of the men that the job had to be done that night.
Early Sunday morning, February 4, the same five men again went to the airport. Shane and McIlvoy walked to a point on the airport grounds where appellant told them Gilbert stopped on his rounds to punch a watchmen's clock. Shane carried a hickory club and McIlvoy was armed with a .22 calibre rifle. When Gilbert stopped his truck, McIlvoy fired several rounds into the driver's side window. Shane used the club to smash out the remainder of the window and McIlvoy shot a few more times through the opening. A post mortem examination of Gilbert's body revealed that he was hit with five .22 caliber bullets.
Other facts not set forth in the Williams case but relevant to the issues in this case follow.
A forensic pathologist testified that Gilbert Williams probably bled to death in five minutes as a result of the five .22 caliber bullet wounds, any one of which could have been fatal.
The two unconsummated murder plans mentioned in Williams contemplated that Shane, a participant in the actual killing, agreed to do the killing for $4,000 and certain drug connections at his Army base which would permit him to sell drugs on the base. On February 2, 1979, two or three days after Nunnery had introduced appellant to Vicky Williams, appellant attended a party at Vicky's house, where large quantities of alcohol were consumed by those in attendance. After a conversation between Vicky and appellant, Vicky announced that appellant would do the killing for $1,000 and that while Shane would get no money, he would still get the drug connections he had requested. The only evidence of Vicky's ability to pay the $1,000 was her displaying a piece of paper and stating that she had a substantial income tax refund coming.
On the night of the killing, appellant had consumed a large quantity of alcohol at Vicky's house before departing with the other four men to go kill Gilbert Williams. There was testimony that appellant is a chronic alcoholic and a person of subnormal intelligence (an I.Q. of 81) and that large amounts of alcohol or drugs would further impair his already subnormal intellect. After the killing, the men returned to the Williams' house in order to drop off Abel, at which time appellant told Abel to tell Vicky that "she owed him a fuck" for what he had done.
Appellant and Nunnery went on to appellant's house where they slept the balance of the night. When appellant awoke, he said that he did not believe the act had happened until he saw Nunnery asleep on his couch. He told Nunnery that he did not know why he had done it. Later that day, appellant told his wife about the killing and they packed and fled. Three days later, appellant telephoned the St. Louis County Police Department from Dallas, Texas, in order to tell them that he was willing to surrender. A St. Louis County police officer went to Dallas, where appellant confessed and told him about the parties, the drinking, and the killing substantially as it was described in Williams.
At trial, appellant testified that when Vicky Williams asked him if he would get rid of her husband, he thought it was some kind of joke. He claimed that he went along with the joke so that he could eventually turn it against the perceived pranksters.
We will address first those assignments of error wherein appellant challenges his conviction for capital murder.
Appellant contends that the trial court erred in submitting Instruction No. 5, which is a combination of MAI-CR2d 15.02 and MAI-CR2d 2.12. He challenges this instruction on five different grounds, each of which will be addressed in turn. Instruction No. 5 states:
If you find and believe from the evidence beyond a reasonable doubt:
Second, that the defendant, either before or during the commission of the offense of capital murder, with the purpose of promoting its commission, aided or attempted to aid such other person in committing that offense
then you will find the defendant guilty of capital murder, unless you find and believe from the greater weight of evidence that the defendant is not guilty by reason of mental disease or defect excluding responsibility as submitted in Instruction No. 10.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
Appellant's first challenge to the instruction is the contention that it does not conform to the applicable MAI-CR2d pattern instructions in that it is a blend of both MAI-CR2d 15.02 and MAI-CR2d 2.12. 2 Thus, he contends that the trial court breached the directive of Rule 20.02(c) (now Rule 28.02(c) (1982)), which mandates that MAI-CR instructions be given to the exclusion of any other on the same subject whenever there is an applicable MAI-CR pattern instruction.
Note 3 of MAI-CR2d 2.10 requires that MAI-CR2d 2.12 be given whether requested or not, whenever there is any evidence that the defendant acted with others in planning, committing, or attempting to commit an offense. Note 2 under MAI- CR2d 2.04 requires that verdict directors contain all essential elements of the offense charged. MAI-CR2d 2.12, on the other hand, requires that the offense initially contemplated (here, the murder of Gilbert Williams) be identified briefly without stating all of the elements of that offense. Note 5 of MAI-CR2d 2.12 directs the trial court to give a separate instruction defining the offense initially contemplated whenever MAI-CR2d 2.12 is used. Faced with these directions, the trial court did not err by incorporating MAI-CR2d 15.02, which enumerates all of the essential elements of capital murder, into MAI-CR2d 2.12. See State v. Baker, --- S.W.2d --- (Mo.App.1981), (No. 42877, decided December 15, 1981); State v. Simpson, 614 S.W.2d 31, 33 (Mo.App.1981); State v. Brown, 607 S.W.2d 881, 886-88 (Mo.App.1980); State v. Clark, 607 S.W.2d 817, 820-21 (Mo.App.1980); Rule 28.02(d) (1982). This Court has approved similar combinations of these two instructions in State v. Mitchell, 611 S.W.2d 223, 226, n.2 (Mo. banc 1981) and State v. Williams, 611 S.W.2d at 29-30, n.3. We approve of the combination as used here.
In appellant's second challenge to Instruction No. 5, he claims that the instruction was erroneous because in using the words "in that" in the first subparagraph of the first paragraph, it "literally told the jury ... that the ... (appellant) intentionally, knowingly and deliberately killed the victim...." We reject this challenge because we do not believe that the use of the words "in that" caused the jury to assume as true the elements of capital murder set forth immediately after those words. The jury was advised in Instruction No. 3 (MAI-CR2d 2.03) that "The Court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are." Instruction No. 1 (MAI-CR2d 2.01) made it clear that it was the jury's duty alone to determine the facts, and Instruction No. 4 (MAI-CR2d 2.20) cautioned that the appellant was presumed to...
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