State v. Reynolds, 61622.

• Decision Date: 15 December 1980
• Docket Number: No. 61622.,61622.
• Citation: 608 S.W.2d 422
• Parties: STATE of Missouri, Respondent, v. Gary Lee REYNOLDS, Appellant.
• Court: Missouri Supreme Court

608 S.W.2d 422

STATE of Missouri, Respondent, v. Gary Lee REYNOLDS, Appellant.

No. 61622.

Supreme Court of Missouri, Division One.

December 15, 1980.

Joseph D. Woodcock, Aurora, for appellant.

John Ashcroft, Atty. Gen., S. Francis Baldwin, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT R. WELBORN, Commissioner.

Appeal from judgment and sentence imposed upon jury verdict finding Gary Lee Reynolds guilty of capital murder. § 565.001, RSMo 1978.

Gary Lee Reynolds and Patricia Reynolds were married in 1972. The marriage was the first for Gary, then around 26 years of age. Patricia had children by a prior marriage or marriages.

In late 1977 or early 1978, Patricia began a relationship with Jerry Lee Reddick, who was employed at the same place as Patricia. On June 10, 1978, appellant and Patricia separated and shortly thereafter she moved into Reddick's residence. Patricia began an action for dissolution of her marriage to Gary which was granted July 31, 1978. In the property settlement, Patricia received the house the couple had occupied at the Emerald Beach Area in Barry County.

After the separation, Gary made threats to kill Patricia and Jerry. On September 16, 1978, Patricia and Jerry went to the house at Emerald Beach to mow the yard. At around dusk, Gary drove up to the house, located on a cul-de-sac, and got out of his van, carrying a gun. Patricia, who was in the yard, told Jerry to leave. Jerry got into his pickup and drove away. As he did so he heard a shot. He drove into a driveway and got out of his truck. He heard a second shot and some bushes and leaves fell. He left on foot and some three to five minutes later heard a third shot. Jerry returned to his pickup and drove to the home of Patricia's parents, ¼ to ½ miles away. He told Patricia's mother, Mrs. Trott, that Gary had come to the house and shots had been fired. Mrs. Trott went to the Reynolds house and found Patricia dead from a gunshot wound to the head.

Gary went to a house in the vicinity and attempted to call the sheriff, but the telephone was dead. He returned to his van.

The sheriff's office received a call about the incident at around 8:30 and officers arrived at the scene at around 9:00 P.M. Gary was seated in his van when the officers arrived. They placed him under arrest. After reading Miranda warnings, the officer asked about the person who was with him. Gary replied: "Nobody else with me. There's no use looking for anyone else, but I was the one who shot her." He told the officer he had thrown the gun along the road. A 30-30 rifle was found leaning against a retaining wall by the Reynolds house.

Gary was charged with capital murder. At his trial, the state waived the death penalty. The jury found the defendant guilty of capital murder and he was sentenced to life imprisonment, without possibility of parole for 50 years. § 565.008, RSMo 1978.

On this appeal the first complaint of appellant is directed against the instructions submitting capital murder, second degree murder and manslaughter. Appellant's complaint is based upon the absence from those instructions of the punishment which might be imposed for each of the three submitted offenses. Appellant contends that, in view of the reference by the prosecutor on jury voir dire to the range of punishment for each of the offenses, the failure to include that element in the instruction caused the instruction to be "incomplete, ambiguous and confusing to the jury," thereby depriving him of his right to a fair jury trial and his liberty without due process of law and the equal protection of the laws.

The instructions given in this case followed the dictates of Section 565.006, RSMo 1978, and MAI-CR 2d § 15.00 9.a. Whether or not the prosecutor properly referred to punishment on voir dire is not the question presented by appellant's objection. Compare State v. Olinghouse, 605 S.W.2d 58 (Mo. banc 1980). The fact that reference had been made (without objection) on voir dire would not affect the statutory directive that the issue of guilt be submitted to the jury "without any consideration of punishment * * *." § 565.006.

Appellant had no constitutional right to have the jury assess his punishment. State v. Morton, 338 S.W.2d 858, 861-8623-5, 6 (Mo.1960). Therefore the procedure here followed did not violate any constitutional right to a jury trial.

For the first time in this Court and without reference to it in his point relied upon, appellant attacks the constitutionality of Section 565.006 as applied to him, on the grounds that it is violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States because it singles out capital murder for special treatment with regard to instructions on penalties. Disregarding the procedural deficiencies in the assertion of this complaint, the bifurcated system for trial of capital murder charges is an obvious response to the conditions which have recently been imposed upon the trial of such offenses. See Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976). The problem peculiar to the trial of such charges is sufficient reason for separate legislative treatment of the punishment aspect of such cases.

Appellant's second point, that the evidence showed at most, murder in the second degree, is premised primarily upon his testimony regarding the incident. According to appellant, he went to the area in order to inform friends in the neighborhood that he was going to the hospital, that when he turned into the drive, Patricia started "hollering" at him and he got "madder and madder," that Patricia started to slap him shortly before the shooting and that he did not remember what happened thereafter. Appellant also relies upon his obviously self-serving negative answer to his counsel's question: "Did you reflect at any time upon taking the life of your former wife cooly and calmly?"

However, review of this allegation must be upon the evidence supporting the verdict, viewed in its most favorable light. The state's evidence showed frequently voiced threats against Patricia by appellant, his arrival at the scene of the shooting armed with a 30-30 rifle, and his emerging from his vehicle carrying the weapon and announcing his purpose to blow out the brains of Patricia and Jerry. From these facts the jury could conclude that the killing was deliberate.

Appellant next contends that the trial court erred in confining defendant's testimony regarding his knowledge of his wife's relationship with Reddick to a period between June 16, 1978 and the date of deceased's death. Appellant contends that evidence of earlier incidents was admissible to show his state of mind at the time of the shooting.

The difficulty with this assignment of error is that the transcript provides no basis for the complaint. The appellant testified in his own behalf. In the course of his testimony, he stated that he had first met Reddick around Christmas, 1976. When counsel asked what occurred at this meeting, the prosecution objected on the grounds that the occurrence was 2½ years before the shooting and the court sustained the objection on the grounds that the evidence was too remote to have probative value.

A conference outside the hearing of the jury ensued, in which defense counsel advised the court that he wanted to show that Patricia and Reddick were involved in an adulterous relationship in order to provide the jury with the background of his thinking process as it related to his state of mind at the time of the shooting.

The court advised counsel that it was ruling only upon the particular question of when the defendant first met Reddick and that anything that might have happened at that time was too remote to have probative value. Defense counsel stated that, if the court intended to overrule him on each of the instances, he wanted to make a continuing offer of proof.

The court responded:

"I am not saying, Mr. Wendt, I am going to sustain each and every objection as to each stage of the relationship, but if I do, then the Court will deem it as a

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