State v. Turner

• Citation: 623 S.W.2d 4
• Decision Date: 13 October 1981
• Docket Number: No. 61974,61974
• Parties: STATE of Missouri, Respondent, v. Willie Ray TURNER, Appellant.
• Court: Missouri Supreme Court

Page 4

623 S.W.2d 4

STATE of Missouri, Respondent, v. Willie Ray TURNER, Appellant.

No. 61974.

Supreme Court of Missouri, En Banc.

Oct. 13, 1981.

Dissenting Opinion on Denial of Rehearing Nov. 10, 1981.

Gary L. Robbins, Public Defender, Jackson, Antoinette Kirsch, Clayton, Walter S. Drusch, Jr., Cape Girardeau, for appellant.

John Ashcroft, Atty. Gen., John Reed, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted on two counts of capital murder and sentenced to consecutive terms of life imprisonment without probation or parole for 50 years, § 565.008.1, RSMo 1978, defendant seeks review in this Court. The cause falls within our exclusive appellate jurisdiction under Art. V, Sec. 3, Mo.Const.

Defendant's allegations of error include: (1) insufficiency of the evidence to support capital murder convictions; (2) improper exclusion of hearsay testimony as to an accomplice's declaration against penal interest; (3) the sentences are violative of the Cruel and Unusual Punishment provisions of the United States and Missouri Constitutions; and (4) erroneous refusal to permit defense counsel's withdrawal or to permit defendant to personally call and examine witnesses.

I.

Examining for sufficiency of the proof, we accept as true all evidence, direct or circumstantial, and all reasonable inferences supportive of the verdict and disregard those portions of the record contrary to a finding of guilt. State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980). Our function is not to weigh the evidence, but rather to determine whether there was sufficient proof from which the jury could reasonably have found defendant guilty as charged. State v. Kelly, 539 S.W.2d 106, 109 (Mo.banc 1976).

The record discloses that between 6:30 and 7:30 on the evening of December 20, 1978, the bodies of two men were discovered in a liquor store in Caruthersville, Missouri. One of them, Pierce Neeley, was lying face down in a pool of blood near the front of the store with a beer bottle bearing defendant's fingerprint beneath his body. The other victim, William "High Pockets" Parker, the store's operator, was discovered supine on the floor behind a counter. Parker was a large man, approximately 6 feet 3 inches in height and weighing about 260 pounds. Except for one broken bottle, the racks of chips and shelves of liquor had not been disturbed evidencing little or no sign of a struggle. The cash register and Parker's billfold had been emptied of money.

An autopsy revealed Parker suffered multiple stab wounds in the chest and abdomen and a large laceration caused by a blunt instrument to the back of his head, possibly producing a concussion. During Neeley's autopsy, nine stab wounds to the front and six to the back of his torso were found, as well as a scalp laceration from a blunt object which could have caused unconsciousness. Each man probably died from his chest wounds.

Frances Mitchell, Johnny Mitchell's wife, and Brenda Hall, Frances' daughter, testified that on the evening of December 20, 1978, defendant came to the Mitchell home and about 30 minutes later left with Johnny, who was armed with a pistol. When they returned at approximately 10:00 that night, Johnny gave Brenda and her siblings some change.

Defendant, in his videotaped statement, admitted that on the night of December 20, 1978, he went to Johnny Mitchell's home near Steele, Missouri, where Mitchell told defendant he wanted to go somewhere and "make him a hussle" (commit a robbery). They left the house in defendant's truck with defendant driving, and went to a liquor store in Caruthersville, arriving sometime after "dusk dark". Mitchell, who was armed with a pistol and a knife, told defendant that he knew the two men in the store, having "borrowed money from them before", and "was going in there and borrow some money from them and if he didn't get it one way he was going to get it other one." Defendant, dressed in a blue repairman's outfit bearing the word "Willie" (his first name), entered the store with Mitchell, and each purchased a beer. Returning to the truck, the two men waited a few minutes for Neeley to leave, but apparently convinced that Neeley was staying, Mitchell asked defendant to drive around the corner and park the truck a block away. When defendant returned to the store, he found Mitchell standing over Neeley, hitting him with a gun. Neeley's back was bleeding from stab wounds, and when Mitchell went behind the counter to get a money sack, defendant, observing that Neeley was attempting to pull himself up, hit Neeley on the head with a beer bottle. Mitchell returned to the front of the store, and he too struck Neeley with a beer bottle, breaking it, then struck him again with the gun. When Neeley fell, defendant and Mitchell ran from the rear door through the alley to defendant's truck. Defendant claimed he then asked why Mitchell had killed the two men and Mitchell stated he wanted no witnesses. After Mitchell divided the stolen money, defendant bought some gas, drove Mitchell home and returned to his residence. ¹

Defendant particularly complains the evidence was insufficient to establish the required mental state for capital murder, § 565.001, RSMo 1978, that at most it showed an intent to rob supportive only of murder in the first degree. § 565.003, RSMo 1978 ² (formerly known as felony murder). This contention misses the mark. The State need not produce direct evidence of a defendant's premeditation and deliberation; instead, the mental elements establishing murder may be proved by indirect evidence and inferences reasonably drawn from circumstances surrounding the slaying. State v. Lindsey, 507 S.W.2d 1, 4 (Mo.banc 1974); State v. Mitchell, 408 S.W.2d 39, 42 (Mo.1966); State v. Williams, 369 S.W.2d 408, 417 (Mo.banc 1963); State v. Page, 130 S.W.2d 520, 523 (Mo.1939). Additionally, premeditation need only be shown to have existed a moment before the slaying and is present if the accused reflects on his act for any length of time before acting, and deliberation is proved when the killing is performed with "a cool and deliberate state of mind." State v. Strickland, 609 S.W.2d 392, 394 (Mo.banc 1980); State v. Marston, 479 S.W.2d 481, 484 (Mo.1972). In this connection, it is worthy of mention that direct proof of the required mental state is seldom available and such intent is usually inferred from circumstantial evidence. See, State v. Beckemeyer, 423 S.W.2d 687, 688 (Mo.1968); State v. Lawson, 585 S.W.2d 247, 251 (Mo.App.1979).

Though defendant asserts his videotaped statement demonstrates he did not participate in the stabbings nor intend the killings, the jury was entitled to disbelieve such exculpatory statements. State v. Wilkerson, 616 S.W.2d 829, 835 (Mo.banc 1981); State v. Wade, 535 S.W.2d 492, 495 (Mo.App.1976). Parker's size, as well as the location of the victims' bodies, renders defendant's version that Mitchell was the sole slayer highly unlikely. Additionally, defendant's continuation in the robbery, after Mitchell had evidenced his intent to dispose of the two men, sufficed to support the jury's determination that the requisite deliberation and premeditation were present. State v. Lindsey, 507 S.W.2d 1, 4 (Mo.banc 1974). Further, defendant's exculpatory statement abounds with admissions pointing toward capital murder. His knowledge that Mitchell and he were easily identifiable as the robbers, combined with his striking of Neeley as he attempted to arise, demonstrates defendant's intention to join Mitchell's planned purpose of leaving no witnesses. Defendant need not personally have committed the killing. It suffices if he knowingly acted in concert with another for the common purpose of committing the offense, or knowingly and intentionally aided or encouraged the other in committing the offense. ³ MAI-CR 2.10, 2.12 and 2.14; State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980); State v. Lute, 608 S.W.2d 381, 384 (Mo.banc 1980); State v. Grebe, 461 S.W.2d 265, 267-68 (Mo.banc 1970); State v. Taylor, 391 S.W.2d 835, 837 (Mo.1965); State v. Butler, 310 S.W.2d 952, 957 (Mo.1958); State v. Easton, 577 S.W.2d 953, 957-59 (Mo.App.1979), cert. denied, 444 U.S. 863, 100 S.Ct. 131, 62 L.Ed.2d 85; Rowden v. State, 493 S.W.2d 699, 702 (Mo.App.1973). Hence, the evidence could lead the jury to reasonably infer "defendant, acting alone or in concert with another 'unlawfully, willfully, knowingly, deliberately, and with premeditation' killed" Pierce Neeley and William Parker. State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980).

Finally, the jury's determination that defendant was guilty of capital murder is not invalidated by the fact the evidence would have supported a first degree (felony) murder conviction, nor does this, as defendant urges, thwart "the statutory scheme enacted by the Missouri Legislature which manifested its intent that so-called 'felony murder' would no longer be treated as a capital offense, when it designed Sections 565.001, 565.003, and 565.008 of the 1979 Criminal Code." The jury was not required to acquit of capital murder and convict of first degree murder simply because the slayings occurred during the perpetration of a robbery.

II.

Defendant next contends the trial court erred in excluding Michael Cooper's testimony concerning purported admissions to the actual slayings by Johnny Mitchell. ⁴ During trial, Cooper was called by defense counsel and offered the following testimony: On December 21, 1978 (the day following the murders), while Cooper was visiting in defendant's home, Mitchell, unaware of Cooper's presence, said to defendant, "I wasted those two punk-ass motherf s." Seeing Cooper enter the room, Mitchell then asked Cooper if he "knowed who wasted those two dudes." On two subsequent occasions, Mitchell allegedly made similar admissions directly to Cooper. The State's objection to Cooper's testimony as hearsay was sustained.

Generally in Missouri, declarations against...