State v. Rousan

• Citation: 961 S.W.2d 831
• Decision Date: 27 January 1998
• Docket Number: No. 79566,79566
• Parties: STATE of Missouri, Respondent, v. William ROUSAN, Appellant.
• Court: United States State Supreme Court of Missouri

Page 831

961 S.W.2d 831

STATE of Missouri, Respondent, v. William ROUSAN, Appellant.

No. 79566.

Supreme Court of Missouri,

En Banc.

Jan. 27, 1998.

Rehearing denied Feb. 24, 1998.

Elizabeth Unger Carlyle, Lee's Summit, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for Respondent.

COVINGTON, Judge.

Appellant, William L. Rousan, appeals from convictions for two counts of first degree murder, section 565.020.1 ¹, for which he received one sentence of death and one sentence of life imprisonment without the possibility of parole. Affirmed.

The evidence is viewed in the light most favorable to the verdicts. On September 21, 1993, appellant, appellant's son, Brent Rousan, and appellant's brother, Robert Rousan, met and discussed stealing cattle from Charles and Grace Lewis. Charles Lewis, sixty-seven, and his wife, Grace, sixty-two, lived near the farm where appellant resided. Having devised a plan, the Rousans set out for the Lewis farm. On the way, they discussed killing Mr. and Mrs. Lewis. They agreed that "if it had to be done it had to be done."

As appellant, his brother, and his son drove past the Lewis farm, appellant pointed out the cattle that they would be stealing. Appellant parked his truck approximately two miles from the farm. He got out of the truck and removed a .22 caliber rifle that belonged to his girlfriend, Mary Lambing. He loaded the rifle for use in the crime "in case anyone was home." Appellant and his son then argued over who would carry the gun. Brent, the son, said that he was "man enough to do whatever needed to be done and that he would use the weapon." Appellant at first stated that Brent was not man enough, but eventually gave him the gun. He warned Brent that if they were caught, they would "fry." The three men then hiked through the woods to the Lewis farm where they waited under cover behind a fallen tree.

Between 3:00 p.m. and 4:00 p.m. that afternoon, Mr. and Mrs. Lewis returned home. Mr. Lewis began to mow the lawn. Mrs. Lewis spoke on the phone to the couple's oldest daughter, who called at approximately 4:00 p.m.

Brent grew tired of waiting and exclaimed that he wanted to "do it." Appellant told Brent to wait until appellant and Robert had secured the house. Appellant headed for the front door and Robert made his way to the back door. Before they arrived at the home, Mr. Lewis saw Brent and called out. Brent fired at least six shots from the rifle, all of which struck Mr. Lewis. Mr. Lewis died as a result of the multiple gunshot wounds.

Mrs. Lewis, speaking by telephone with her daughter, told her daughter that she heard gunfire and hung up the telephone. As Mrs. Lewis exited the house through the front door, Brent shot her several times. Although the bullets fractured both of Mrs. Lewis's arms, the wounds were not fatal. Mrs. Lewis ran back into the house. Appellant followed her, removed a garment bag from a coat rack, placed the bag over Mrs. Lewis's head and the upper part of her body, picked her up, and carried her outside. When appellant placed Mrs. Lewis on the ground, she was alive. Appellant turned to Brent and instructed him to "finish her off." Brent fired one shot into the left side of Mrs. Lewis's head. The shot killed her.

The three men wrapped the bodies in a tarpaulin and tied it with a rope. Appellant instructed that they should pick up the shell casings and clean up the blood stains. After doing so, the men deposited the bodies near a shed and left, planning to return later to get the bodies and the cattle.

The three men, along with Jerry Rousan, another of appellant's brothers, returned to the Lewis farm that night. There, they loaded the bodies into Mr. Lewis's truck. They took two cows, a VCR, jewelry, soda, two gas cans, and a saddle. The four men then returned to Mary Lambing's farm, where appellant lived. On the return trip, Brent bragged about the murders.

At the Lambing farm, the men buried Mr. and Mrs. Lewis in a shallow grave by the barn. After digging the grave and placing the bodies in it, the men poured concrete over the bodies. They covered the grave with a pile of manure. They burned rags used to clean the blood from the Lewis house.

The men disposed of the Lewises' property in various ways. On the night of the murders, the men consumed the soda. The cows were later sold at auction. Robert gave the VCR to his sister and brother-in-law, Barbara and Bruce Williams, on the day following the murders. Mr. and Mrs. Williams sold the VCR to a local pawn broker approximately eight months later. Appellant buried the couple's personal items. He gave the remainder of the jewelry to Mary Lambing on special occasions during the following year. The four men hid and later burned Mr. Lewis's truck.

When the Lewises' daughter could not reach her parents the following day, she became concerned. She called the police, who undertook an investigation into the Lewises' disappearance. The police investigation continued for nearly a year without an arrest.

Nearly a year after the disappearance of Mr. and Mrs. Lewis, on September 15, 1994, Bruce Williams, the brother-in-law to whom Robert Rousan had given the stolen VCR, made a telephone call to the police, believing his call to be anonymous. Bruce Williams told the police where the person who killed Mr. and Mrs. Lewis lived. The police traced the call to Mr. Williams. They interviewed him and later obtained additional information from Robert Rousan. The police attempted to contact appellant at Mary Lambing's farm. The officers confronted appellant, and appellant fled.

On September 20, 1994, appellant contacted Bruce Williams to ask for a ride to a barn in Washington County. Williams took appellant to the barn, then notified the police. Appellant, armed with a .22 caliber rifle, was arrested at the barn without incident. He was taken to Washington County Sheriff's Department. There, the officers advised appellant of his Miranda rights and questioned him.

Appellant provided information that implicated him in the murders. He told the police that he had first met the victims in 1975. He saw them again in 1989 after he escaped from custody in the State of Washington and sought refuge at the Lewises' farm. When Mr. Lewis discovered appellant hiding in his barn, he fed him, clothed him, and when appellant left the farm two weeks later, Mr. Lewis gave him twenty dollars. Shortly after that time, appellant was apprehended and returned to prison.

After release from prison in June of 1993, appellant returned to the farm to thank Mr. and Mrs. Lewis for their kindness and to rekindle their friendship, he said. According to appellant, Mrs. Lewis was in poor health. Appellant explained that Mr. Lewis asked appellant to kill Mrs. Lewis to put her out of her misery and to kill him because he did not want to live without his wife. Appellant also claimed that he was hired by Charles Lewis, IV, son of Mr. and Mrs. Lewis, to kill them in exchange for fifty-thousand dollars. Appellant maintained, however, that his actual motivation for the murders was mercy.

The police discovered the Lewises' bodies at Mary Lambing's farm. They also discovered the murder weapon and various articles of the Lewises' personal property there. Appellant was charged with the murder of Charles and Grace Lewis.

The jury found appellant guilty of two counts of first degree murder. At the penalty phase, the state introduced evidence of appellant's prior convictions for rape, assault, escape, and unlawful possession of a firearm. In addition, the state presented testimony from family members of Mr. and Mrs. Lewis with respect to the impact of their deaths on the family. Appellant presented testimony of friends and family members in mitigation of punishment.

The jury recommended that appellant be sentenced to death for the murder of Grace Lewis. The jury found five statutory aggravating circumstances: that appellant was convicted of rape in the second degree and assault in the second degree; that the murder was committed while appellant was engaged in the unlawful homicide of Charles Lewis; that appellant directed Brent Rousan to murder Mrs. Lewis; that Mrs. Lewis's murder involved depravity of mind because she was killed after being rendered helpless; and that the murder was committed while appellant was engaged in a robbery. The jury also recommended that appellant be sentenced to death for the murder of Charles Lewis. The jury found four statutory aggravating circumstances with respect to his murder.

The trial court sentenced appellant to death for the murder of Grace Lewis and life imprisonment without the possibility of parole for the murder of Charles Lewis.

I.

Appellant alleges that the trial court erred in sustaining the state's challenge for cause to venirepersons Cowan, Henkin, and Davis.

Venirepersons may not be excluded from the jury simply because they state general objections to the death penalty or express conscientious or religious scruples against its infliction. Gray v. Mississippi, 481 U.S. 648, 657, 107 S.Ct. 2045, 2050-51 (1987). Venirepersons may be excluded only where their views would prevent or substantially impair the performance of their duties as jurors in accordance with the instructions and their oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). If it appears that a venireperson cannot consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a first degree murder case, then the juror can be stricken for cause. See State v. Debler, 856 S.W.2d 641, 645-46 (Mo. banc 1993)(discussing death-qualification of venire).

The qualifications of a prospective juror are not determined conclusively by a single response, but are determined on the basis of the voir dire as a whole. State v. Kreutzer, 928 S.W.2d 854, 866 (Mo. banc 1996), cert. denied, --- U.S. ----, ...