State v. Tinsley

• Decision Date: 16 September 2004
• Docket Number: No. 25870.,25870.
• Citation: 143 S.W.3d 722
• Parties: STATE of Missouri, Respondent, v. Eldon TINSLEY, Appellant.
• Court: Missouri Court of Appeals

143 S.W.3d 722

STATE of Missouri, Respondent, v. Eldon TINSLEY, Appellant.

No. 25870.

Missouri Court of Appeals, Southern District, Division Two.

September 16, 2004.

Appeal from the Circuit Court, Jasper County, David C. Dally, J Nancy A. McKerrow, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Eldon Tinsley ("Appellant") appeals his conviction after a jury trial for murder in the first degree, a violation of section 565.020.¹ The trial court sentenced Appellant to life imprisonment without the eligibility of probation or parole.

The sufficiency of the evidence is not an issue in this appeal. "We view the evidence in a light most favorable to the verdict." State v. Johnson, 95 S.W.3d 221, 222 (Mo.App.2003). The evidence adduced at trial reveals that on May 9, 2001, Myung Kyu Kim ("Kim") entered the American Bank in Baxter Springs, Kansas, and attempted to cash three checks that Appellant had given him in exchange for goods.² Upon presentment of the checks, Kim was told by the bank teller that Appellant's bank account had been closed for three years and that she could not honor the checks. Kim was advised by the Baxter Springs police department to contact the Joplin police department. Instead of contacting the Joplin Police Department, Kim decided to go to Appellant's home in Joplin and get either his money or his merchandise from Appellant.

By chance, Appellant's daughters, Cheena and Tonya, arrived at Appellant's home at around 10:00 a.m. that morning. Neither lived with Appellant. They found Kim waiting outside of Appellant's home for Appellant. Both Cheena and Tonya recognized Kim from his previous dealings with Appellant. Tonya knocked on Appellant's door and then called Appellant from Kim's cellular phone, but Appellant would not come to the door of his home. After waiting about ten minutes, Cheena and Tonya left.

Kim then called his girlfriend, Hyang Park ("Park"), in Texas and told her that he was at Appellant's house; that Appellant would not answer the door; and that he was going to wait for Appellant to come out.

At around noon, Kim phoned Park again. This time Kim told Park that he was inside Appellant's house and he wanted Park to speak to Appellant about getting the money Appellant owed him. Park then spoke with Appellant and informed Appellant that he needed to deal with his bank; Appellant told her that he would. After Appellant gave the phone back to Kim, Park, who was "feeling sort of strange" about the situation, asked Kim for Appellant's phone number, which he gave her. When Park called Kim at Appellant's home five or ten minutes later, there was no answer.

At around 2:00 or 2:30 that afternoon, Tonya phoned Appellant from a friend's home to see if she had any phone messages waiting for her at Appellant's home. Immediately after they got off of the phone, Appellant called Tonya back at her friend's home. Sounding out of breath, Appellant told Tonya that he needed her to come to his home and that he wanted her to come alone.

When Tonya arrived at Appellant's home, "he told [her] that he ha[d] something really important to tell [her]. And that he was trusting [her] with his life. And that he had killed somebody." Appellant then told her that he had gotten into an argument with Kim and that he had killed him. Knowing that Appellant kept a 9-millimeter gun in his filing cabinet, Tonya asked Appellant if he shot Kim. Appellant responded by telling her that "it was none of [her] business." Tonya did not see Kim's body, but she did observe some blood in the laundry room once she arrived at Appellant's home.

Appellant asked Tonya to help him dispose of the contents of Kim's truck and asked her to meet him at Stowaway storage. On the way to the storage unit, Tonya stopped to see her friend Kim Clevenger ("Clevenger"). She told Clevenger that she would be back to pick her up later. Tonya informed Clevenger that her father had killed someone and she had to help him unload a truck.

At about 3:00 p.m., Appellant rented a storage unit at Stowaway storage and he and Tonya placed the contents of Kim's truck in the storage unit. Then they parked Kim's truck in the Wal-Mart parking lot and abandoned it there. While at Wal-Mart, Appellant and Tonya purchased a padlock for the storage unit.³ Appellant and Tonya returned to the storage unit to place the lock on the door and then went back to Appellant's home at about 4:30 p.m.

Upon arrival at Appellant's home, Appellant told Tonya that he was going to Mike Hatten's ("Hatten") auction house to buy a metal drum and that he wanted her to come back to his house at 9:00 p.m.⁴ Tonya then went to see Clevenger and later visited with Cheena. Tonya told both of them what had happened that day. According to Cheena, Tonya and her boyfriend, Tim Avey ("Avey"), arrived at her house at around 6:00 p.m.

At some point in the late afternoon, Clevenger went to the Joplin police department to report Kim's murder. Based upon Clevenger's information, the police placed Appellant's home under surveillance. Officer James Altic testified that Appellant arrived home in a maroon van. After parking the van, Appellant began unloading its contents and carrying items into his home. After ten to fifteen trips into the home, Appellant emerged from the house with a metal drum on a dolly. Wearing latex gloves and struggling with the drum, Appellant wheeled the dolly to the carport and set it down by the maroon van. As Appellant entered the van, he was surrounded by the police. When the police removed the lid of the drum, they discovered Kim's body inside.

The record reveals that an autopsy showed that Kim died of a close range gunshot wound to the head. Through the use of luminal⁵, the police detected the presence of blood in Appellant's dining room, kitchen, bedroom hallway, and bathroom sink; there was visible blood in the doorway between the kitchen and the bedroom. Police recovered a 9-millimeter bullet from a hole in the kitchen wall that later was proven to have been fired from the 9-millimeter Ruger found in Appellant's dresser drawer. Police discovered Kim's wallet, passport, and one hundred and thirteen boxes of merchandise in the storage unit rented by Appellant. Further, the towel used to wrap Kim's body matched the towels in Appellant's bathroom and Kim's empty truck was found in the Wal-Mart parking lot. After Appellant's arrest, Tonya and Cheena moved into his house. Shortly after moving in, Tonya found Kim's cellular phone on a shelf in Appellant's closet and turned it over to police.

Following a jury trial, Appellant was convicted of Kim's murder.

In his first point on appeal, Appellant asserts the trial court abused its discretion in granting the State's request to strike for cause two venirepersons, Tito Rojas ("Rojas") and Tammi Miller ("Miller"). Appellant maintains that both venire members indicated they could be fair and impartial, therefore, there was no basis for their removal and Appellant contends that as a result of their removal from the venire panel he was denied a full panel of qualified venire members from which to exercise his peremptory challenges.⁶

"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." State v. Rousan, 961 S.W.2d 831, 839 (Mo. banc 1998).

In our review, we commence with that portion of the State's voir dire of the venire panel which dealt with venire member Miller. During the death qualification portion of the State's voir dire, the following occurred:

The State: On number thirty-one [of the jury questionnaire] you said you could consider both life without the possibility of probation and parole and the death penalty; is that correct? You can consider both punishments?

Miller: I think I would have difficulty with the death penalty. I'd probably lean more towards — .

The Court: I can't hear you, ma'am.

Miller: I said I'd probably lean more towards life with parole than the death penalty. I think I would have difficulty.

The State: So, are you — well, only you know the answer to this. If you were on the jury and you were asked to vote, would you be able to listen to the evidence and consider the death penalty?

Miller: If I had no doubt, you know, of guilt, I could consider it.

The State: Well, if the instruction says that you — that that's not the instruction that I only have to prove it beyond a reasonable doubt, it's not all doubt.... In the guilt phase, knowing that's a possibility, are you going to hold me to a higher standard then?

Miller: (Nods head.)

The State: Is that a yes?

Miller: Yes

The State: Okay. Thank you.

Thereafter, during the defense's voir dire of Miller, the following exchange took place:

Defense Counsel: Okay. All right. Miss Miller, I think you were talking with [the State's counsel] about this — I'm going to move over here, I can't see you at all from over there because there are people in front of you. I think that you told [the State] that you would expect a higher level of proof from him in a death penalty case; is that — I don't want to put words in your mouth; is that what you said?

Miller: Yes, meaning that I guess that I would have to have no doubts in my mind, I guess.... I guess, yeah, if I understood the question right. I would say yes, I would have to have no doubt in my mind before I could consider death.

Defense Counsel: Okay.

Miller: I don't know if I'm —.

Defense Counsel: And I want to explore this with you a little bit further. I think I understand what you're saying but this is kind of technical here. Are — there's two stages of this trial; right? We talked about that. There's the stage where you as a juror will just be deciding whether or not the person is guilty of murder in...