State v. Oliver

• Decision Date: 10 October 1978
• Docket Number: No. 60617,60617
• Citation: 572 S.W.2d 440
• Parties: STATE of Missouri, Respondent, v. William Chapman OLIVER, Appellant.
• Court: Missouri Supreme Court

Page 440

572 S.W.2d 440

STATE of Missouri, Respondent, v. William Chapman OLIVER, Appellant.

No. 60617.

Supreme Court of Missouri, En Banc.

Oct. 10, 1978.

Rehearing Denied Nov. 6, 1978.

J. Martin Hadican, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Jeff Schaeperkotter, Asst. Atty. Gen., Jefferson City, for respondent.

JOSEPH J. SIMEONE, Special Judge.

I.

Defendant-appellant, William Chapman Oliver, was charged by information and found guilty by a jury of murder in the second degree, Section 559.020, RSMo 1969. In accordance with the jury verdict entered October 31, 1975, defendant was sentenced on January 23, 1976, to 20 years in the division of corrections. He appealed to the Court of Appeals, Springfield District, which affirmed the conviction. On appellant's motion, we granted transfer of this cause and now decide the case under the provisions of Article V, § 10, Mo.Const.; Rule 83.03.

Appellant urges two points for reversal: (1) that the trial court erred in overruling his motion for continuance made at the beginning of trial to allow appellant a reasonable opportunity to convince a reluctant out-of-state witness to voluntarily return to Missouri to testify on his behalf, and (2) the trial court erred in giving Instruction No. 6 a manslaughter instruction (MAI-CR 6.08). We reject both points and, for reasons hereinafter stated, affirm the judgment of conviction.

II.

On October 28, 1971, Marilyn Oliver, the estranged wife of the defendant was found dead on a farm in Franklin County. Her body was partially decomposed and an autopsy showed she had been shot five or six times.

On August 31, 1972, defendant, William Chapman Oliver, was indicted for the murder by a Franklin County grand jury. The indictment charged defendant with shooting to death his estranged wife with a .38 caliber revolver on or about October 19, 1971.

On February 5, 1973, upon defendant's motion, a change of venue was granted to Phelps County and the jury, on August 31, 1973, found defendant guilty of murder in the second degree and assessed his punishment at 25 years imprisonment. By mandate of the court of appeals, this judgment was reversed and the cause remanded for a new trial. State v. Oliver, 520 S.W.2d 99 (Mo.App.1975). The cause was retried and the defendant was found guilty and the jury assessed his punishment at twenty years.

Before the trial of the present cause, a change of venue was granted to Dent County. An information in lieu of indictment was filed charging defendant with second degree murder.

Trial of this cause commenced on October 28, 1975. Since defendant does not question the sufficiency of the evidence we need not detail all of the complicated facts. Suffice it to say that the jury could reasonably find the following. At the time of the critical events in 1971, defendant was a police officer in the City of St. Louis. He married Marilyn in the Spring of 1967 and they lived together until late 1970 or early 1971. At the time of the events in question Marilyn was living in an apartment in Florissant, Missouri. Mr. Oliver and one Richard Woodcock were sharing an apartment at another location. Marilyn was employed at a baking company.

The events are difficult to detail. Much of the evidence by various witnesses focused on the defendant owning or having in his possession over a period of time a nickel or chrome plated pistol with white grips exhibit 18, the murder weapon, and testimony of witnesses who stated that defendant had made certain incriminating statements about killing his wife. There was also evidence that the defendant had purchased "Norma brand" bullets the same kind of bullets found in Marilyn's body and fired from exhibit 18. There were also some discrepancies in certain interviews the defendant had with police officers of the Major Case Squad.

Prior to the time Marilyn's body was found on a farm on October 28, 1971, Marilyn's younger sister, Shirley Jean Folle, stayed with Marilyn on the weekend of October 16, and 17, 1971. Shirley described the clothing Marilyn had on at the time which was the clothing she had on when her body was found. Two witnesses testified that they took Marilyn to dinner on the evening of October 18, and returned to her apartment at about 11:30 p. m.

On the next Wednesday, October 20, an officer of the St. Louis Police Department Officer Brooks stopped the defendant when he was speeding. Defendant was off duty. At the time Brooks noticed the defendant carrying a "nickel or chrome plated pistol with white grips." The officer testified that the gun, exhibit 18, "most definitely" resembled the gun defendant was carrying.

The scene then shifts to a bank robbery. On October 21, 1971, an armed robbery occurred in the city at Cass Federal Savings and Loan Association. The defendant was on duty and heard a broadcast about the robbery. The broadcast contained a reference to a license plate which was familiar to defendant because it was on an automobile driven by Marilyn. A second broadcast mentioned the name of James Leroy Cochran, who, defendant knew, was acquainted with Marilyn.

October 28, 1971, was a fateful day when many facts coalesced. On that day a special agent recovered the gun introduced in evidence from an abandoned automobile in Kentucky. The automobile had been left by Cochran who was wanted for the Savings and Loan robbery.

On that same day, a farmer discovered the partially decomposed body of Marilyn near Gerald, Missouri. The body was clad in the same or similar clothing Marilyn had worn. Police were called. The next day an autopsy was held. The body showed evidence of at least five bullets and perhaps six. One perforated the heart.

One of the state's witnesses was Brenda McCleary. She was endorsed a few days before trial. It was her testimony that she and a friend, Mary Duvall, knew defendant and that the defendant possessed a nickel plated gun. Brenda testified that defendant made some incriminating statements concerning his wife's death.

At the time of the trial, Brenda's friend, Mary Duvall was residing in Georgia and was reluctant to come to Missouri to testify. Her deposition was taken by telephone and read. She did not remember Brenda telling her of any of the incriminating statements made by defendant.

Damaging testimony came from Kathleen Ann Cookson (Gilliam), a lifelong friend of Oliver's girlfriend, Sandra. She testified that the defendant said that if Sandra's husband would injure Sandra or his children, he would "pump them full of lead, like his wife." She also testified that Oliver said, "Oh, my God! What have I done? I've killed my wife . . . ."

Over the months, the investigation into Marilyn's death was carried on under the supervision of Major Robert R. Lowery and Officer Jay Noser. Officer Lowery testified as to certain interviews with the defendant in which the defendant first denied purchasing Norma brand bullets and then admitted it. Testimony also indicated that the defendant had not been honest in an earlier interview, and that defendant had made statements about throwing the remaining bullets away.

On May 12, 1972, approximately seven months after Marilyn's death, defendant was interviewed by Major Lowery, and Detective Jay Noser. Defendant appeared voluntarily for the interview at Lowery's request, and the interview was conducted in Lowery's office. At the outset, Officer Lowery advised defendant of his constitutional rights, after which Officer Lowery asked defendant if he knew how Marilyn met her death. Defendant replied he did not. Lowery then asked defendant when he first became aware that Marilyn had disappeared. According to Lowery, defendant explained he was on duty on October 21, 1971, and heard the police radio report of the Cass Federal holdup. Lowery testified defendant said he recognized the license number as being the one on "Marilyn's car". Lowery recalled that defendant said he had seen the license plate at least ten or fifteen times. According to the officer, defendant said he knew James Cochran "slightly". Lowery testified he then asked defendant if he had any Norma brand bullets and defendant replied "No." At this time, Lowery told Noser to bring Sandra Little into the office. When Sandra entered, Officer Lowery recalled defendant saying "I told you, Sandra, to throw the bullets away, the remaining bullets . . . away in a sewer."

Officer Noser corroborated Officer Lowery's version of the May 12, interview, adding that defendant was asked if he ever owned or had a chrome plated gun, and defendant replied he never owned one. Officer Noser quoted defendant as saying he had no knowledge of purchasing any Norma brand bullets at any time. Noser recalled defendant saying he lied to Lowery about purchasing bullets to protect Sandra.

Defendant's recollection of the interview on May 12 was that Lowery asked about the Norma ammunition and defendant did not remember buying any, so he replied "No." At trial defendant admitted buying ammunition from a gun shop on several occasions. Defendant testified that Norma brand ammunition can be used in any .38 caliber "police special" and defendant admitted owning several such weapons. Defendant denied telling Lowery he lied to protect Sandra.

On July 20, 1972, defendant returned to the Police Station and asked to see Major Lowery "to find out more about the case". On this occasion, according to Lowery, defendant said he had purchased the Norma brand bullets and "he had not been honest with me on the first interview because of Sandra Little and that Sandy Little had given the weapon used in the commission of these crimes to James Leroy Cochran . . . ."

Sergeant Noser was present at the July 20, 1972, meeting between Major Lowery and defendant. Noser quoted defendant as saying he lied about the bullets to protect Sandra Little. Noser also recalled defendant saying the gun they had discussed on May 12 belonged to Sandra Little, and she had given it to James...