State v. Preston, 64186

CourtUnited States State Supreme Court of Missouri
Citation673 S.W.2d 1
Docket NumberNo. 64186,64186
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Elroy PRESTON, Defendant-Appellant.
Decision Date15 May 1984

Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Judge.

Defendant stands convicted of one count of capital murder and one count of second degree murder. The death penalty was assessed by the jury for the capital murder conviction based on the finding of the statutory aggravating circumstance of the offense being "outrageously or wantonly vile, horrible or inhuman in that it involved ... depravity of mind," § 565.012.2(7), RSMo Cum.Supp.1983. A consecutive life sentence was assessed by the trial court for the second degree murder conviction.

A substantial number of alleged errors are raised by defendant's counsel. These include: 1) allowing the state to impeach its own witness; 2) refusing to allow evidence of an unrelated incident which theoretically could have affected defendant's state of mind and thereby provoked defendant into the killings; 3) refusing to allow leading questions of a purported state's witness; 4) permitting disparaging remarks of the prosecutor concerning the defense of mental disease or defect; 5) refusing to give defendant's tendered instruction on mental disease or defect which would in this particular instance allow a finding of mental disease or defect when defendant was drunk; 6) questioning veniremen on voir dire about the death penalty; 7) failing to include as a mitigating circumstance in the penalty phase an instruction that defendant had a mental disease or defect; 8) allowing evidence of a nonstatutory aggravating circumstance of a suspended imposition of sentence; 9) permitting an improper prosecutorial argument; 10) insufficiency of evidence to support the statutory aggravating circumstance of depravity of mind; and 11) excessiveness of penalty as compared to similar cases.

No error appears, and the convictions and penalties assessed are affirmed.

A get-together between friends and relatives is the start of the episode leading to this capital murder case. It ends in brooks of blood and some grizzly happenings. The dramatis personae of this crime are defendant, his brother, Ervin Preston, defendant's girlfriend, Sherry Brown, and the victims, Pee Wee Richardson and Betty Klein. The place of the killings is Ervin's North St. Louis home.

Defendant had been living temporarily with his brother Ervin in the downstairs portion of the house. Ervin was a paraplegic confined to a wheelchair. Pee Wee Richardson and Betty Klein lived together upstairs. All were present in Ervin's quarters for an evening's heavy drinking, save for Sherry Brown who did not imbibe. During the course of the night, frequent alcohol-related verbal vituperations were exchanged between the three men for a farrago of petty reasons, including who was to sleep where and whether some chicken which had been purchased to sate hungry stomachs would be permitted to be shared with Pee Wee Richardson.

Pee Wee and his bedmate, Betty Klein, ultimately went upstairs for some sleep, with defendant from time to time interrupting their slumber with trips to their room. Angry for a continuing assortment of grounds, defendant made a final trip upstairs and ordered Pee Wee and Klein to Ervin's downstairs quarters. In the presence of Ervin and Sherry Brown, defendant announced to the hapless Pee Wee and Betty Klein that he would kill them just as soon as he removed his clothes. Presumably, the idea behind the clothes removal was to keep from having them blood spattered. True to his word, defendant did take off all his clothes, and proceeded to stab and critically would Pee Wee with a hunting knife. Then with a single swipe of the knife he severed Betty Klein's spinal cord at the neck, killing her instantly. He immediately returned his attention to Pee Wee and stabbed him several more times in the chest and abodomen. Pee Wee died as a result of five stab wounds to the body, face and hands, the latter coming as he tried to ward off the lethal blows. He also absorbed four incised wounds. The killings complete, the defendant took some leftover fried chicken, dipped it in the victims' blood and ate it with relish, all the while aiming deprecatory remarks at his stone dead victims. With this bizarre bit of action completed, defendant and Sherry Brown dragged the bodies to a back alley and left them there to be discovered by neighbors. He and Ms. Brown then made some effort to clean the blood spattered house.

Defendant was convicted of the capital murder of Pee Wee Richardson and sentenced to death, the statutory aggravating circumstance of the offense being "outrageously or wantonly vile, horrible or inhuman in that it involved ... depravity of mind," § 565.012.2(7), RSMo Cum.Supp.1983. He was also convicted of second degree murder for the killing of Betty Klein and given a consecutive life sentence as a dangerous offender for that crime.


Defendant's first point deals with alleged error in permitting the state to impeach its own witness, Sherry Brown, defendant's girlfriend.

As part of its case, the state did call Ms. Brown, who, during redirect examination either denied or could not recall having made certain statements to police during the investigation of the crime. At the prosecutor's urging that Ms. Brown was evasive and inconsistent in her answers and was a hostile witness, the trial court allowed leading questions of her and an attempt to refresh her memory by reviewing a transcript of a taped statement made by her to police.

There was no error in this. It is a basic legal tenet that when a state's witness is equivocal, uncertain or evasive or the witness is forgetful or unwilling, reference during redirect examination to a statement prior to trial is proper. State v. McKinney, 475 S.W.2d 51, 54 (Mo.1971). "It is competent to exhibit to a witness a statement made by her prior to her testimony at trial, for the purpose of refreshing the witness' recollection, and such is not impeachment." State v. Couch, 567 S.W.2d 360, 362 (Mo.App.1978), quoting Coats v. Old, 237 Mo.App. 353, 167 S.W.2d 652, 655 (1942). Refreshment of memory generally is in the domain of trial court discretion, State v. Couch, 567 S.W.2d at 362, and is reviewable only for abuse. State v. Crow, 486 S.W.2d 248, 257 (Mo.1972).

In any event, Ms. Brown by her actions did establish herself as a witness hostile to the state. She continued to exhibit her steadfast loyalty and devotion to the defendant and reluctance to testify against him. In fact, though under subpoena, her appearance was only as a consequence of her arrest. In that circumstance the redirect examination by the prosecutor--more in the nature of cross-examination by sharp and leading questions--was not improper or an abuse of discretion. State v. Crone, 399 S.W.2d 19, 22 (Mo.1966); State v. Kinne, 372 S.W.2d 62, 66 (Mo.1963); State v. Woolford, 545 S.W.2d 367, 373 (Mo.App.1976). The examination was not a direct impeachment of the state's own witness, of course, which is impermissible. State v. Armbruster, 641 S.W.2d 763, 766-67 (Mo.1982); State v. Sutton, 454 S.W.2d 481, 488 (Mo. banc 1969); Wells v. Goforth, 443 S.W.2d 155, 159 (Mo. banc 1969); Webb v. American Family Finance Services, 667 S.W.2d 435 (Mo.App.1984). See also Comment, Impeaching One's Own Witness in Missouri, 37 Mo.L.Rev. 507 (1972).


Defendant's second point concerns the exclusion of certain testimony sought to be elicited from Ervin Preston and Ms. Brown which would bear on defendant's state of mind at the time of the killings.

The defendant maintains that at some point during his youth, Ervin, his brother, had raped him. This incident came to his mind on the night of the killings. As part of the res gestae, and not for the truth of the matter, defendant's counsel sought to question Ervin and Ms. Brown whether defendant, in a highly agitated state of mind, had related the humiliating experience with his brother. Defendant's purpose, of course, was to establish that he was in a heated frame of mind, which would bear on his defense of mental disease or defect and also go to deliberation and malice.

The trial court sustained objections on ground of relevancy, and no error appears in this action. It is difficult to perceive the pertinence of defendant's attitude toward his brother from a long past experience and the killing of two unrelated and totally disconnected persons. The circumstance of a suggested homosexual relationship and bitterness toward his brother is not germane or part of the res gestae, as it is not connected with the main fact of the killings. See State v. Sherman, 637 S.W.2d 704, 706 (Mo. banc 1982). No need exists for tampering with the trial court's substantial discretion in this issue of relevancy and determination of weight and probative value of the testimony. State v. Clark, 652 S.W.2d 123, 128 (Mo. banc 1983).


Defendant next complains that his trial counsel was denied the opportunity to cross-examine Ms. Brown by the use of leading questions.

Discussion above has been completed on the issue of Ms. Brown's hostility to the state and bias for defendant. In that circumstance, it is proper for the trial court to exercise its control over the examination of witnesses to the extent of allowing leading and suggestive questions even on direct examination. State v. Britton, 647 S.W.2d 155, 160 (Mo.App.1982). But the reverse circumstance to which this point is directed also requires control by the trial court in the use of leading questions. That is, when the witness is on cross-examination and is obviously biased in favor of the cross-examiner, leading questions can pose a substantial danger and certainly may...

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