State v. Mueller, s. 63017

• Decision Date: 15 February 1994
• Docket Number: Nos. 63017,60245,s. 63017
• Parties: STATE of Missouri, Respondent, v. Betty D. MUELLER, Appellant. Betty D. MUELLER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 559

872 S.W.2d 559

STATE of Missouri, Respondent, v. Betty D. MUELLER, Appellant.

Betty D. MUELLER, Appellant, v. STATE of Missouri, Respondent.

Nos. 63017, 60245.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 15, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 15, 1994.

Application to Transfer Denied April 26, 1994.

Arthur S. Margulis, Margulis and Grant, Clayton, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., F. Martin Dajani, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Presiding Judge.

Appellant, Betty D. Mueller, appeals her convictions for murder in the second degree, § 565.020.1 R.S.Mo 1986 (all further statutory references shall be to R.S.Mo 1986 unless otherwise noted), and armed criminal action, § 571.015, for which she was sentenced to consecutive terms of life and 50 years imprisonment respectively. She also appeals the denial of her post-conviction relief (Rule 29.15) motion.

On appeal, appellant contends the trial court erred in (1) allowing the introduction of a videotaped statement of a state's witness, Kenneth Cook, as a prior consistent statement; (2) admitting the videotaped statement as substantive evidence and permitting the state to argue the contents thereof; and (3) admitting portions of the videotaped statement which were inadmissible as hearsay and which did not rehabilitate Cook's sworn testimony. She also claims the motion court erred in denying her Rule 29.15 motion based on ineffective assistance of counsel, after an evidentiary hearing. We affirm.

Viewed in a light most favorable to the verdicts, the evidence reveals that on September 16, 1989, appellant, her brother Donald Winters, Kenneth Cook, and the victim Mary Tringle, went to a barbecue in North St. Louis County at the home of the victim's friend. The four left the barbecue around sunset and drove towards appellant's home in Jefferson County. Appellant and Cook rode in one car, while Winters and victim rode in another car. At some point, appellant and Cook argued, and Cook got out of the car on the shoulder of the highway. Appellant also argued with Winters after she had signalled him to pull over onto the shoulder of the highway. Appellant told Winters to leave the car on the highway so that her former husband, Don Mueller, could have it towed home from there. Winters refused, and drove with the victim to appellant's home in Jefferson County. Appellant arrived there minutes after Winters and the victim, and Don Mueller was also there. The members of the group, except Don Mueller, continued to drink and argue. Apparently, appellant was upset with Winters and the victim over the use of her credit cards and the fact that she was the only one in the group with any money. At some point, the victim stated that she was tired and went to lie down in a back bedroom. Subsequently, around 10:30 p.m., Winters and Don Mueller left, while the victim remained in the bedroom, so that Winters could visit his wife in North St. Louis County. He was unable to see his wife and eventually they went back to appellant's house in Jefferson County. When they arrived, appellant had the doors locked and a note on the door from appellant which stated that she wanted to go to sleep and that the two should find other arrangements for a place to stay that night. Winters went around to the bedroom window and spoke with appellant who told him to leave and that she did not want to be bothered any more that evening. Winters asked about the victim and appellant stated that the victim had phoned someone to pick her up, and that appellant had directed her to a convenience store to meet her ride. Winters and Don Mueller then left. At some point, around 11:30 p.m. or midnight, appellant went to the home of Virginia Lawrence in the City of St. Louis looking for Cook. Appellant was very upset and dropped off her grandson. The next morning appellant came back around 6:30 to pick up her grandson and stated that everything was all right. Around 8:30 or 9:00 that morning, Cook called appellant. Appellant said she had been looking for him all night and she wanted to see him. Cook went to appellant's home, and appellant told him that she had stabbed and killed the victim, and that she needed help getting rid of the body. Appellant and Cook went to a storage shed in Illinois in which was a cedar chest containing the body of the victim, a mattress, and other items in two plastic garbage bags. They buried the victim in back of an Illinois farm house, and drove around and dumped the mattress and the plastic garbage bags which appellant said contained blood stained linen. They also disposed of a knife in a cornfield in Illinois, and burned the cedar chest. Eventually, Cook was arrested several times for questioning on the disappearance of the victim, and in November, 1989 gave a detailed account of what he had seen and done, and of what appellant had told him regarding the manner of the killing. He accompanied police to the places where he dumped the evidence and where he buried the victim. Eventually, the victim's body was found near a cornfield, in a different spot from the original burial site. The head, hands and a foot had been removed, and the victim had to be identified through x-ray comparisons.

At trial, the state called Cook as a witness. Cook, however, invoked his rights under the Fifth Amendment and refused to testify. The trial court then allowed portions of the transcript of Cook's preliminary hearing testimony, given on January 22, 1990, to be read into evidence by the prosecutor, and portions of the preliminary hearing cross-examination were also read into evidence by defense counsel. Although Cook's preliminary hearing testimony was generally consistent with the videotaped statement he had given police, the videotaped statement contained facts and details not contained in his preliminary hearing testimony.

After the preliminary hearing testimony was read to the jury, defense counsel read to the jury Cook's deposition, given on October 31, 1990, wherein Cook stated the following: His memory of events around September 16, 17, and 18, 1989, was deficient because of his use of cocaine, heroin, amphetamines, marijuana, and alcohol, and it was hard for him to distinguish what actually happened from what people told him happened. The police questioned him on several occasions and had physically abused him. He vaguely remembered attending a barbecue; he did not remember telling the police that appellant killed the victim; he did not recall going with appellant to bury the victim or to dispose of any evidence; and he did not even remember the victim. Cook stated that he couldn't imagine appellant killing the victim and that she wouldn't do it. He also stated that if the police had a statement from him that he did help appellant bury the body, they would have had to coerce it out of him, and that the way they would have gotten such a statement would have been to tell him what happened. He essentially recanted his preliminary hearing testimony by stating that it was based on what the police told him while he was in jail, that it was not truthful, that he didn't know the victim and knew nothing about the murder of the victim, and that he in no way assisted appellant in disposing of the victim's body.

Subsequently, during direct examination of Detective Carl Cullem of the Arnold, Missouri Police Department, the state introduced a videotaped statement of Cook given on November 16, 1989. In the statement Cook states the following: He went to a barbecue with appellant and left appellant's company on the highway. He later telephoned appellant's house and learned that appellant, Winters, and the victim had been arguing over the use of appellant's credit card. He stated that appellant was upset because the victim was supposed to have had oral sex with appellant's son, and because appellant and the victim had just had a fist fight and the victim had beat up appellant. He called appellant's house the next morning and appellant was upset and panicky. Appellant said she had been looking for him all night, and asked him to come to her house. When he arrived, appellant was very upset and said that she had killed the victim and that Don Mueller was the only one who knew. Don Mueller had walked in and saw her in the process of repeatedly stabbing the victim. Appellant described the squishy sound as the knife went through the victim's body into the mattress. Appellant said she kept saying "die, whore, die" as the victim fought and begged for her life in the name of her children. Appellant said that it started with the victim asleep and that she crept in with the knife with the intention of murder. Cook looked in the bedroom where the stabbing occurred and noted that it had been "stripped" of sheets and the mattress. Appellant stated that she and Don Mueller put everything in plastic bags, put the victim in a cedar chest, and put everything in a storage facility in Illinois. Appellant then asked Cook to help her in disposing of the cedar chest containing the victim's body, the mattress, and other items. The two then took Don Mueller's pickup truck, which had been left at appellant's house, and drove to Illinois. At some point on the way they stopped and picked up the knife used in the murder which appellant had discarded under a bridge in Arnold, Missouri. At the storage facility in Illinois, they took the cedar chest, mattress and other items and drove to an old vacant house with a storage shed on or near Don Mueller's property in Illinois. There, Cook dug a shallow grave, laid the victim's body in it, and covered it over. They then proceeded to a different location and burned the cedar chest, and drove to other locations in the area to discard the knife, the mattress and other items. They then spent the night at Don Mueller's house in Illinois, and the next day appellant drove Cook to St. Louis. He...