State v. Oxford, 71154
| Citation | 791 S.W.2d 396 |
| Decision Date | 19 June 1990 |
| Docket Number | No. 71154,71154 |
| Parties | STATE of Missouri, Respondent, v. Richard OXFORD, Appellant. |
| Court | United States State Supreme Court of Missouri |
Larry C. Pace, Kansas City, for appellant.
William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.
Finding defendant guilty of first degree murder for killing Melba Wampler, the jury fixed punishment at death; hence the appeal falls within the Court's exclusive jurisdiction. Mo. Const. art. V, § 3. Defendant's motion for postconviction relief filed pursuant to Rule 29.15 was denied by the court after evidentiary hearing. Each judgment is affirmed.
The sufficiency of the evidence to support the verdict is not challenged on appeal and our examination of the record reveals abundant testimony as to the ultimate facts. Prior to the murder, defendant was serving consecutive twenty and sixty-five-year sentences in the Conner Correctional Center, Hominy, Oklahoma, from which he and his cellmate, Richard Brown, escaped on November 11, 1986, and on November 14, appeared at the Paint Stallion, a country western bar in Joplin. Sometime after 9:00 that evening, Harold and Melba Wampler, who were local dairy farmers with seven children, arrived at the bar to socialize with friends. The two escapees spoke to the Wamplers during the evening and about midnight defendant was seen leaving with them; Brown left a few minutes later.
The next day, the Wamplers did not arrive to milk their dairy herd and were missing for many weeks thereafter until finally, on January 2, 1987, the Missouri Highway Patrol received a tip their car was seen at a motel in Kansas City. On investigation, the car was located and the Wamplers' bodies were found wrapped in a blanket in the trunk. An autopsy revealed decomposition of the bodies consistent with their having been dead for six weeks and that both died with massive brain hemorrhages resulting from gunshot wounds to their left temples. The victims' hands and feet were bound, duct tape had been placed over their mouths, and no wallet, purse or money was found with the bodies.
Defendant was arrested in Las Vegas on December 22, 1986, as a fugitive from Oklahoma, and a wristwatch positively identified as belonging to Harold Wampler was found in his possession. A hair found on the blanket wrapping the bodies was indistinguishable from that of defendant, and his fingerprints were found on the car, as well as on groceries inside the car. When defendant was being held in Nevada, he met another inmate, Jeffrey Echols, who testified at trial that defendant admitted to him that he had indeed committed the crime. Defendant asked Echols if he had ever seen anyone shot, and upon receiving a negative response, stated, Defendant also admitted stealing cash, wallets, and Mr. Wampler's watch. While in jail, defendant asked Echols,
The state called Dr. Robert Holcomb, who testified that defendant suffered from substance abuse and an anti-social personality, but knew and appreciated the nature and wrongfulness of his actions on November 15, 1986, and could conform his action to the requirements of law. On the other hand, defense witness Dr. William Hamilton opined that defendant was not able to fully appreciate the nature of the charges against him or tell the difference between right and wrong. He concluded that defendant was mentally ill.
In the punishment phase, the state offered evidence of defendant's prior convictions on three counts of rape, assault with intent to rape, four counts of forcible sodomy, four counts of burglary in the first degree, and nine other prior convictions. 1 The jury unanimously found these convictions were established, as well as the following aggravating circumstances:
That the murder of Melba Wampler was committed while defendant was engaged in the commission of another unlawful homicide.
That the murder involved torture and depravity of mind and was therefore outrageously or wantonly vile, horrible or inhuman, and,
That at the time of the murder, defendant had escaped from the lawful custody of a place of confinement.
Upon defendant's sentence of death, Judge Darnold questioned him pursuant to Rule 29.07(b), whereupon defendant stated his attorney had done everything he asked him to do, but he was not satisfied with counsel's services because his attorney had the "same boss" as the judge. Judge Darnold found no probable cause to believe defendant received ineffective assistance of counsel.
For his first point defendant contends the trial court erred in admitting evidence during the guilt phase that he had escaped from prison in Oklahoma prior to the commission of the murder; similarly he asserts error in allowing the prosecutor to refer to the escape during opening statement. The rule regarding the admissibility of evidence of other crimes has been well-stated in State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc 1987):
Evidence of commission by defendant of crimes separate and distinct from the crime for which he is charged is generally inadmissible. But such evidence is generally 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. Evidence of other crimes should be admitted under one of these exceptions only when the prejudicial effect of the evidence is outweighed by its probative value. This balancing of prejudicial effect and probative value lies within the sound discretion of the trial court.
(Citations omitted).
We have previously held that evidence of a defendant's escape from prison may be relevant to establish motive, State v. Lee, 626 S.W.2d 252, 254 (Mo. banc 1982), see also State v. Hicks, 591 S.W.2d 184, 192 (Mo.App.1979), and those holdings are pertinent here. Defendant, who escaped four days prior to the murder, needed money and transportation to further elude recapture, and indeed he and Brown used the victims' automobile to continue their flight. Similarly, in Mallett we held that evidence of the defendant's robbery of a jewelry store while on probation was evidence of a motive in the subsequent killing of a state trooper and that he did so in an attempt to avoid the consequences of his prior conduct. 732 S.W.2d at 534-35.
Defendant next asserts error arising from the following exchange during voir dire:
Prosecutor: And under the right circumstances could you consider imposing the death penalty?
Ray: Yes.
Prosecutor: Under the right circumstances, on the other hand, could you consider imposing life in prison without probation or parole?
Ray: Yes.
The trial court sustained an objection to the last question, and defendant complains he was not allowed to probe the opinions and bias of the veniremen and was thus denied his right to a fair and impartial jury.
Control of voir dire is within the discretion of the court, which will not be disturbed absent abuse, State v. Bannister, 680 S.W.2d 141, 145 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 and we find no error in the trial court's ruling. The prosecutor's questions were directed to the prospective jurors' ability to follow instructions and impose the appropriate penalty as authorized by law; the questions in no way hinted what would be "the right circumstances" for imposition of these penalties. The question of defense counsel, on the other hand, seemed to search the venireman's opinion as to the law and was accordingly inappropriate. The point is denied.
We also reject as patently meritless defendant's contention that the trial court failed to strike venireman number six for cause. During voir dire the following exchange occurred between defense counsel and this venireman:
Lozano: So if the State would--the State's certainly going to bring its side up. Would you require them before you could vote innocent--or not guilty, rather--that Mr. Oxford or the defense provide some evidence to you?
Latimer: You mean, would I have to hear it from both sides?
Lozano: Yes.
Latimer: Right.
* * * * * *
Latimer: I thought if you--I'm like her. If he was innocent he wouldn't be here. And I thought they had to prove it to us that he was guilty or we wouldn't be voting if he's innocent.
* * * * * *
Lozano: Do you understand that it's up to the State to prove Mr. Oxford's guilt?
Latimer: Right.
Lozano: And that they have to do that with competent evidence sufficient for you not to have a reasonable doubt?
Latimer: Right. I understand that.
Lozano: Okay. Now, if they don't do that how would you vote?
Latimer: Well, there's just two decisions, give him life or death, and then there's not--
Though the trial court initially refused to strike Betty Latimer, the transcript demonstrates that the court later changed its ruling and Ms. Latimer was in fact stricken for cause. Therefore this claim must be denied.
Defendant next charges instructional error, but as he has not set forth the instruction in full in the argument portion of his brief, the point is not preserved for review. Rule 30.06(e); State v. Harris, 717 S.W.2d 233, 235 (Mo.App.1986). However, even a cursory glance at the matter ex gratia reveals that the claim is meritless. MAI-CR 3d 304.04 sets forth the requisite elements concerning aiding and abetting the...
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