State v. Pagano
| Decision Date | 23 August 1994 |
| Docket Number | 18770,Nos. 17970,s. 17970 |
| Citation | 882 S.W.2d 326 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. William Nick PAGANO, Defendant-Appellant. William Nick PAGANO, Plaintiff-Appellant v. STATE of Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Edward L. Page, Festus, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
William Nick Pagano (defendant) was charged with murder in the first degree, § 565.020.1, 1 (Count I), and armed criminal action, § 571.015, (Count II). Following a jury trial, he was found guilty of murder in the second degree, § 565.021, a lesser included offense of the charge in Count I, see § 565.025.2(1)(a), and armed criminal action and sentenced to consecutive terms of imprisonment of 20 years (Count I) and 3 years (Count II).
Defendant thereafter filed a motion for post-conviction relief pursuant to Rule 29.15. It was denied without evidentiary hearing. Defendant appeals the judgment of conviction and the order denying his Rule 29.15 motion. The appeals were consolidated in accordance with Rule 29.15(l ). This court affirms.
Defendant shot and killed Mark Timothy Todd (also referred to in this opinion as Tim Todd). The shooting occurred in the garage at defendant's residence in Festus, Missouri. According to defendant, Todd had come to defendant's house so that defendant could take him to St. Louis to meet someone he could hire to kill his wife.
Todd was an employee of Scientific Security, Inc. (SSI), a company that provides security services for businesses. He was a vice-president of SSI. Defendant was president of SSI. The company was owned by defendant's wife. Defendant and Todd were reserve Jefferson County deputy sheriffs.
Todd was killed March 26, 1990. According to taped recordings defendant made of earlier conversations between he and Todd, Todd began discussing plans with defendant in early March 1990, about hiring someone to kill his wife. Over the course of several conversations, defendant inquired whether Todd was seriously considering such a plan and represented to Todd that he had contacted persons who could be hired to kill her.
On the afternoon of March 26, 1990, Todd came to defendant's residence. Defendant told Todd he would need to provide the person they would meet with information about his wife and a picture of her. Todd brought a picture with him. After he arrived at defendant's residence he typed information about her place of employment, her residence and where she visited when she was not working. Todd had previously given defendant $5,000 to use as an initial payment to the person who would be hired.
Defendant and Todd entered defendant's garage to get into defendant's car. The garage had spaces for parking two cars. Only one car was in the garage. Todd entered first. Defendant followed. Defendant told Todd that he had to go back inside his house to set his alarm. When defendant returned he was carrying a shotgun. He fired two shots that struck Todd in the head killing him immediately.
Following the shooting, defendant gave statements to law enforcement officers describing his version of what occurred in the garage. Defendant said Todd was carrying a bottle of mineral water and the typewritten list of information about his wife. Defendant said Todd had a handgun tucked in the waistband of his trousers.
According to defendant, when he returned to the garage with the shotgun, he told Todd he was arresting him. Defendant said Todd screamed, dropped the bottle of mineral water and the list, crouched and moved toward the back of the car parked in the garage. Defendant did not see Todd's hand on the handgun; however, he stated he thought Todd was going over the back of the car or behind the car to take cover and shoot at him.
Four days before the shooting, defendant met with the prosecuting attorney of Jefferson County. He told the prosecuting attorney that Todd had discussed arranging to have his wife killed; that he was trying to dissuade him and to get him to seek psychiatric help. The prosecuting attorney suggested defendant contact the detective division of the sheriff's department and obtain their assistance.
After his discussion with the prosecuting attorney, defendant had a telephone conversation with Sheriff Walter "Buck" Buerger, a personal friend, about Todd's plans. Defendant discussed a plan to assist Todd in obtaining psychiatric help, but if Todd refused, to arrest him. Defendant wanted to handle the arrest, if it became necessary, alone.
Defendant also discussed Todd's remarks about hiring someone to kill his wife with Dr. Gordon Johnson, another personal friend, who was chief medical examiner of Jefferson County and chairman of the Department of Laboratory Medicine at Jefferson Memorial Hospital. He told Dr. Johnson that Todd was using steroids to assist with body building--Todd was 6 feet, 6 inches tall and weighed 250 pounds. Defendant inquired about the effect the use of anabolic steroids might have on a person. Defendant told Dr. Johnson that he had the taped recordings of conversations with Todd and the $5,000 Todd had given him to use to hire someone to kill Todd's wife in a bank safe-deposit box. He gave Dr. Johnson the key to the box. After the shooting, Dr. Johnson gave the key to the sheriff.
The afternoon of March 26 at 1:20 p.m., defendant called the sheriff. He told the sheriff that Todd was coming to his house because he had told Todd they would go from there to St. Louis to meet the person who would be hired to kill Todd's wife. Defendant asked the sheriff, "Should I need you, where can I get you?" The sheriff told defendant he would be at his office.
About 45 minutes later defendant called again. He told the sheriff:
I had to shoot him.
. . . . .
He just won't listen. He tried to turn. He was going to trying [sic] to get behind a car and he was coming up with a gun.
The sheriff asked defendant if he had an ambulance coming. Defendant first said he was going to call one. Then defendant said, "Buck he's dead."
SSI was beneficiary of two "key man" insurance policies that insured Todd's life. One policy was issued in 1985; the second in 1986. Applications for both policies were signed by defendant on behalf of SSI.
The first policy was issued by John Hancock Insurance Company. Its face amount was $500,000. The second was issued by the Prudential Insurance Co. of America. Its face amount was also $500,000, but provided accidental death benefits of $1,000,000.
At the time of his death, Todd had been married sixteen years. He and his wife had two children. He had been involved in an extramarital affair for two and one-half years with Stephanie Pagano, defendant's twenty-year-old daughter. Defendant was aware of the relationship between Todd and Stephanie.
Defendant presents seven points on appeal. The first six are directed to the direct appeal of his convictions. The seventh is directed to the appeal of the order denying his Rule 29.15 motion.
Defendant's first point complains the trial court erred in admitting testimony from Sandra Caldwell about an argument between Tim Todd and Stephanie Pagano that occurred two or three weeks before Todd was killed. Defendant contends it was error to admit the testimony because there was no evidence he knew about the argument; that the testimony was irrelevant and prejudicial.
Ms. Caldwell testified:
Q. [By the prosecuting attorney] Had you seen Tim Todd have any sort of confrontations or arguments with anybody in the last two or three weeks of his life?
A. Yes.
Q. And when and where would that have been, approximately?
A. When it was--it was two to three weeks before the 26th, and it was in the mall. It was outside of the gym, in the mall, at the health club.
Q. And who was the argument with?
A. Stephanie Pagano.
Q. And where were you that you could--that you could view this occurring?
A. I was standing inside of the women's gym, and I just saw them out in the mall.
Q. And what sort of--what sort of obstructions, if any, were between you and them? What were you--
A. Looking through?
Q. Yes.
A. Looking through the window. It has a sheer curtain hanging on it. But I went up to the window and looked.
Q. And could you hear what was being said?
A. No.
Q. Could you--would you describe what you could see between the two--
. . . . .
Q. Ma'am, my question was--would you go ahead and describe what you could view occurring between Tim Todd and Stephanie Pagano?
A. When I looked out the window, I could--I saw Stephanie right up--right up against Tim forcefully, right up against him, and you could tell she was very upset. And she was pointing her finger into his chest, and he was pointing down at her, shaking his finger down at her.
Q. When you say--when you talk about forceful contact, could you elaborate a little more on what you mean by that?
A. She was up--pushing up against him like this, pointing to him like this.
Q. Do you have any idea about how long that lasted while you were watching?
A. Five minutes.
Q. And did you see--did you see the ending as far as them going their separate ways, or did you quit watching?
A. They left together.
The state argues that the testimony was relevant to show defendant had a motive for killing Todd; that the killing was not, as defendant claimed, the product of a lawful arrest by a law enforcement officer or lawful self-defense.
The state's position in this appeal is the same as was stated by the special prosecutor in closing argument:
The prosecutor just has to prove that some level of homicide occurred--and you had the jury instruction read to you in each of those levels of homicide--and that it was not self-defense, and it was not a justified use of force by a law enforcement officer making an arrest. The prosecutor does not have to prove motive.
And in this case, it is a good...
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