State v. Plunkett

• Court: Missouri Court of Appeals
• Writing for the Court: Cynthia L. Martin, Judge
• Citation: State v. Plunkett, 473 S.W.3d 166 (Mo. App. 2015)
• Decision Date: 18 August 2015
• Docket Number: WD 77406
• Parties: State of Missouri, Respondent, v. Sandra G. Plunkett, Appellant.

473 S.W.3d 166

State of Missouri, Respondent,

v.Sandra G. Plunkett, Appellant.

WD 77406

Missouri Court of Appeals, Western District.

OPINION FILED: August 18, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied September 29, 2015

Application for Transfer Denied November 24, 2015

Richard A. Starnes, Jefferson City, MO, for respondent.

Emmett D. Queener, Columbia, MO, for appellant.

Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and James E. Welsh, Judge

Cynthia L. Martin, Judge

Sandra G. Plunkett ("Wife") appeals her convictions of first-degree murder and armed criminal action following a jury trial.

Wife argues that the trial court erred by refusing to submit a proposed self-defense instruction to the jury, by overruling her motions to suppress evidence, and by admitting testimony at trial regarding the evidence she sought to suppress. Finding no error, we affirm.

Factual and Procedural History¹

Wife married Paul Plunkett ("Husband"), a Jefferson City police officer, in 1998. Husband retired from the police department in 2008 and bought a pest control company from his brother. Wife and Husband operated the business together.

Wife developed a drug addiction to Vicodin and heroin. To fund her drug habit, Wife overdrew thousands of dollars from joint personal and business checking accounts and sold items to a local pawn shop.

Husband developed diverticulitis in the summer of 2009, requiring several surgeries and hospitalizations. By the end of 2010, Husband was generally confined to a hospital bed in the living room of his home in Holt's Summit. Husband had an open wound, a feeding tube, tubes for intravenous drugs, and a colostomy bag. Husband had to wear an abdominal binder to be able to get out of bed and move around. Husband's heart was enlarged and his legs had atrophied to the point that moving around required great effort.

Sometime during the week after Christmas in 2010, Wife asked a drug associate, Randy Deppe ("Deppe"), if he knew anyone who would kill Husband. On December 30, 2010, Wife again asked Deppe if he knew anyone who would kill Husband and mentioned something about an insurance check. Wife told Deppe that Husband would not die and admitted to putting morphine and heroin in Husband's IV drip in an attempt to kill him.

Later on December 30, 2010, Wife took a Marlin .22–caliber rifle to a pawn shop. Wife asked the store clerk to show her how to load the rifle. The clerk told Wife the kind of ammunition needed for the rifle.

Before 10:00 a.m. on January 1, 2011, Wife shot Husband in the head with the Marlin rifle, killing him. Wife left the house and drove to Jefferson City to buy heroin. She then drove to a nearby cul-de-sac and disposed of the rifle in the woods. She disposed of a box of ammunition while driving on a gravel road in New Bloomfield.

Between 12:45 p.m. and 12:50 p.m. on January 1, 2011, Wife called 911 and reported that a man in camouflage was in the middle of the street pointing a rifle at her house. She reported that she had arrived home to discover her Husband had been shot. A police officer arrived. The officer could not see into Wife's house because the blinds were closed, and no one immediately answered the front door. The officer started toward the back of the house when Wife opened the carport door holding a handgun. Wife told the officer she did not know how to use the gun.

Wife led the officer into the house. She lifted and turned Husband's head to show the officer an entry wound on the right side. Wife said the man in camouflage was a white male in his fifties. Wife said she grabbed the handgun, which Husband kept in a holster near his bed, and tried to fire it out the door to scare the man but could not fire the gun. Wife said she tried to do the same with a rifle.

Paramedics arrived on the scene. As the paramedics moved Husband, a .22–caliber shell casing rolled onto the floor. The shell casing was consistent with having been fired from a Marlin rifle.

Wife continued to claim to police that Husband was shot by a camouflaged gunman. Wife denied that she or Husband were experiencing financial problems and denied that she had current drug problems. The police ruled out people Wife identified as potential suspects.

The police contacted family members and determined that a Marlin rifle was missing from the home. Police learned of Wife's drug problem and interviewed Deppe about his conversations with Wife.

On January 3, 2011, the police again interviewed Wife. This time, Wife claimed that Husband asked her to find someone who would kill him because he wanted to die. Wife said Deppe agreed to kill Husband and that she left a rifle in the garage for Deppe. Police re-interviewed Deppe, who denied any involvement in the murder.

On January 4, 2011, the police again interviewed Wife. This time, Wife said she killed Husband at his request. Wife led investigators to the rifle. Wife was arrested and later charged with first-degree murder and armed criminal action.

Both before and after Wife's arrest, Prosecutors secured investigative subpoenas from the trial court pursuant to section 56.085.² Before Wife was arrested, Jefferson Bank and Hawthorne Bank received subpoenas that requested account information for Husband and Wife's joint bank accounts. After Wife was arrested, United Healthcare received subpoenas that requested information about a life insurance policy worth $100,000 owned by Husband. In lieu of appearing in person at the prosecutor's office to deliver the records and to submit to oral examinations under oath, the subpoenaed businesses simply submitted the subpoenaed records to police investigators.

Wife filed motions to suppress the subpoenaed records. Relevant to this appeal, Wife argued that her Fourth Amendment right against unreasonable searches and seizures was violated when the State waived the statutory requirement that representatives from the subpoenaed businesses produce the records and appear at the prosecutor's office for oral examinations under oath. Wife also argued that the subpoenas issued to United Healthcare for insurance policy records violated the Fourth Amendment because the State failed to provide Wife notice of the subpoenas.

The trial court overruled Wife's motions to suppress. The trial court ruled in pertinent part that:

Investigative subpoenas must be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. Johnson v. State, 925 S.W.2d 834 (Mo. banc 1996). Parenthetically, assuming that it is the burden on the [subpoenaed party] that must be analyzed, that burden is certainly lessened by permitting the [subpoenaed party] to simply send the documents without an appearance.

The trial court also found that the United Healthcare insurance policy belonged to Husband, and that Wife had no ownership interest in the policy.

At trial, Wife timely objected to admission of the subpoenaed records by referencing her motions to suppress. The trial court overruled Wife's objections and elected to stand by its ruling on the motions to suppress.

At trial, Wife testified that she had been abused by Husband for a number of years and killed Husband in self-defense. Wife testified that on the day of the killing, she and Husband got into an argument and Husband kicked her. Wife testified that she went to the bathroom and then returned to the living room when Husband, angry and shaking, reached for a handgun next to his bed. Wife stepped into the kitchen and picked up the rifle. From the kitchen, Wife testified that she could see Husband reaching for the handgun. Wife returned to the living room and shot Husband. She testified that she felt she had to shoot Husband to defend herself.

During the jury instruction conference, the State tendered Instruction No. 6, a self-defense instruction patterned after MAI–CR3d 306.06A. Wife affirmatively indicated that she was "in accord" with Instruction No. 6. Wife later tendered a separate, stand-alone instruction which, in summary, provided that a person has no duty to retreat if lawfully in their own home. The trial court refused Wife's tendered instruction.

The jury found Wife guilty of first-degree murder and armed criminal action. The trial court sentenced Wife to life in prison without the possibility of parole for murder and a concurrent term of seven years for armed criminal action.

Wife timely appealed.

Summary of Issues on Appeal

Wife raises five points on appeal. In her first point, Wife argues that the trial court abused its discretion by refusing to submit her tendered "no duty to retreat" instruction because it would have responded to the State's anticipated closing argument that Wife's use of deadly force was unreasonable because she could have left the house from two exits in the kitchen. In her second point, Wife argues that the trial court erred by overruling her motions to suppress the subpoenaed bank records because the State waived the section 56.085 requirement that a person producing subpoenaed records appear for oral examination under oath. In her third point, Wife argues the trial court erred by overruling her motion to suppress the subpoenaed insurance policy records because the State waived the section 56.085 requirement that a person producing subpoenaed records appear for oral examination under oath and because the State failed to give Wife advance notice of the subpoenas. In her fourth and fifth points, Wife respectively argues that the trial court erred by admitting testimony regarding the contents of the insurance policy and bank records because the testimony was impermissible "fruit of the poisonous tree."

Point One

Wife asserts that the trial court's refusal to submit her tendered instruction was an abuse of discretion because she should have been permitted to inform the jury that she had no duty to retreat pursuant to section 563.031.3.

Standard of Review

Pursuant to Rule 28.02(a) "[i]n every trial for a...