State v. Sherman

• Decision Date: 04 June 1996
• Docket Number: No. WD,WD
• Citation: State v. Sherman, 927 S.W.2d 350 (Mo. App. 1996)
• Parties: STATE of Missouri, Respondent, v. June Lorene SHERMAN, Appellant. 49707.
• Court: Missouri Court of Appeals

Page 350

927 S.W.2d 350

STATE of Missouri, Respondent, v.June Lorene SHERMAN, Appellant.

No. WD 49707.

Missouri Court of Appeals Western District.

June 4, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 27, 1996.

Application to Transfer Denied

Sept. 17, 1996.

Gary E. Brotherton, Asst. Public Defender, Columbia, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., John W. Simon, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEEN, P.J., and HANNA and SPINDEN, JJ.

SPINDEN, Judge.

A jury convicted June Lorene Sherman of second degree murder for the shooting death of her husband, Donald Sherman.On appeal, she challenges (1) the sufficiency of the evidence, (2) the verdict-directing instruction, (3)the circuit court's overruling her motion to suppress, (4) the admission of certain evidence, (5)the court's limiting her cross-examination of her second husband, and (6)the court's refusal to declare a mistrial.We affirm.

Donald and June Sherman were married on December 31, 1988.It was June Sherman's third marriage and Donald Sherman's second.In October 1992, June Sherman wrote her second husband, Joseph Mangum, that her marriage to Donald Sherman had been "a mistake."In October 1992, Donald Sherman told his brother-in-law that his marriage was going badly.He began discussing with his brother-in-law the purchase of their house trailer if he divorced his wife.He also told his brother-in-law that his first wife had taken advantage of him financially and that when he divorced June Sherman, it would be a "50/50 divorce."A month or two before his death, Donald Sherman told his wife that he wanted a divorce.June Sherman opposed a divorce and told her mother-in-law that she was not going to divorce Donald Sherman and let him take half of what she had because she had invested too much in the marriage.

After returning home from work on Friday, May 14, 1993, Donald Sherman ate supper with his wife.Later that evening, an eyewitness saw June Sherman sitting in her husband's pickup with a man at Correll Bottoms.During the night, Alberta Gibson, who lived about a mile from Correll Bottoms, believed she heard a gunshot from the bridge at Correll Bottoms.On her way to work around 5:30 the next morning, she noticed a man standing next to Donald Sherman's pickup.

Law enforcement officers discovered Donald Sherman's body at Correll Bottoms on May 16, 1993.He had died from a single gunshot wound in his back.The doctor who performed the autopsy opined that he had died within six hours of eating supper on Friday.A comb found next to Donald Sherman's body was identical to the kind used by June Sherman in her beauty shop.Footprints next to the body matched June Sherman's shoes.

On May 17, 1993, law enforcement officers interviewed June Sherman.After receiving her written consent, officers searched her house.Although they found several firearms, they did not find the gun used to kill Donald Sherman.

Sheriff Richard Freeman and Sergeant Randall King interviewed June Sherman on May 21.She told them that she and her husband went to Correll Bottoms to fish on Friday but returned home because they forgot their bait and remained home the rest of the evening.When Freeman and King told her they had an eyewitness who had seen her at Correll Bottoms Friday night, she told them she had been three and one-half miles north of Correll Bottoms.After further discussion, she said, "Okay, I'll tell you the truth."She said that she and Donald Sherman had returned to Correll Bottoms on Friday evening to set their fishing poles but had returned home at around 9:00 or 9:30.When the officers told her of the footprints, she told them that she had been mushroom hunting at Correll Bottoms the day before she and her husband had gone fishing.The officers told her that it had rained between Thursday and Sunday and that the rain would have washed away her footprints.She then admitted that she had gone to Correll Bottoms on Saturday morning and found her husband's body at 9:00 or 9:30.She said that his stomach was cold and that she"knew he was gone by the look on his face and the blood."When the officers asked her why she had not reported this to authorities, she answered that she was afraid of "what's happening right now" and that "the family would think [she] did it."

After conferring with the prosecuting attorney, officers arrested June Sherman for Donald Sherman's murder.As the sheriff's personnel were "booking" her, they overheard her tell her daughter, "I didn't do it, but I know who did."

After her arrest, but before her release on bail, June Sherman told her cellmate that she enjoyed television crime shows like "Unsolved Mysteries" because "she could watch them and learn how to kill someone and get by with it."After being released on bail, June Sherman attempted to collect on her husband's life insurance policy for $15,000, but his employer refused to pay her the proceeds.June Sherman told her mother-in-law, who was the second beneficiary on the policy, that if she was convicted, she wanted the mother-in-law to have the insurance proceeds, but that she did not want her husband's daughter or former wife to receive the money.June Sherman also told her mother-in-law that "if you get it, be sure and watch your P's and Q's because you'll be next."

June Sherman did not testify at trial.The jury convicted her of murder in the second degree.

In the first of six points, she contends that the circuit court erred in overruling her motion for judgment of acquittal at the close of all the evidence and in sentencing her on the conviction because the state did not present sufficient evidence to convict her.She claims that the state did not present any evidence identifying her as the perpetrator or an accessory.

The state submitted the charge of second degree murder in the disjunctive, allowing the jury to convict June Sherman if it found that she had acted either alone or together with another person in committing the crime.She did not dispute the state's evidence that Donald Sherman died from a single gunshot wound in his back.The question presented is whether the state proved beyond a reasonable doubt that June Sherman, acting alone or with another person, caused her husband's death.Under § 565.021.1(1), RSMo 1994, a person commits murder in the second degree if he or she knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person.

The evidence established that June Sherman had a motive for killing her husband.The evidence showed that the marriage was going badly and that Donald Sherman had told his wife that he wanted a divorce.She did not want a divorce and told her mother-in-law that she would not divorce him.Donald Sherman had a life insurance policy for $15,000 which June Sherman attempted to collect soon after his death.The jury could reasonably infer that June Sherman had a motive to kill her husband.

The prosecutor presented evidence showing that she had an opportunity and means for shooting her husband.She admitted being at Correll Bottoms, where her husband's body was found, on Friday night and Saturday morning.Her footprints were next to his body.She was proficient with firearms.After "finding" her husband's body, she did not report it to authorities until later Saturday night and only at the insistence of Donald Sherman's daughter.She took a round-about route to town after leaving her husband's body.The jury could reasonably infer that she did not want to be seen driving back to town from Correll Bottoms.June Sherman deceived authorities and thwarted efforts to find her husband although she knew his body was at Correll Bottoms.

In her second point, Sherman contends that the circuit court erred in overruling her objection and giving InstructionNo. 8, patterned after MAI-CR3d 313.04, 304.04 and 304.02.She argues that the state presented no evidence to support a finding that she acted with another to commit the charged offense.She claims this violated her due process rights because it allowed the jury to find her guilty even if it did not find that she acted alone.InstructionNo. 8 said:

INSTRUCTIONNO. 8

If you do not find the defendant guilty of murder in the first degree, you must consider whether she is guilty of murder in the second degree.

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about the 15th day of May, 1993, in the County of Linn, State of Missouri, the defendant or another caused the death of Donald Sherman by shooting him, and

Second, the defendant or another knew or was aware that his conduct was practically certain to cause the death of Donald Sherman,

then you are instructed that the offense of murder in the second degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

Third, that with the purpose of promoting or furthering the death of Donald Shermanthe defendant acted alone or acted together with or aided another in committing that offense,

then you will find the defendant guilty of murder in the second degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the second degree.

If you do find the defendant guilty of murder in the second degree, you will assess and declare one of the following punishments:

1.Life imprisonment.

2.Imprisonment for a term of years fixed by you but not less than ten years and not to exceed thirty years.

Sherman claims the circuit court's giving this instruction to the jury was error because the state did not present evidence supporting a finding that she acted with another person.

"The purpose of the disjunctive instruction is to give the jury the opportunity to consider evidence that is...