State v. Weatherspoon
| Decision Date | 29 July 1986 |
| Docket Number | No. WD,WD |
| Citation | 716 S.W.2d 379 |
| Parties | STATE of Missouri, Respondent, v. Barry J. WEATHERSPOON, Appellant. 37201. |
| Court | Missouri Court of Appeals |
Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Timothy W. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, C.J., and TURNAGE and KENNEDY, JJ.
Barry J. Weatherspoon was found guilty by a jury of capital murder, § 565.001, RSMo 1978 (repealed effective October 1, 1984), and upon the jury being unable to agree upon punishment the court sentenced him to life imprisonment without eligibility of parole until he had served a minimum of 50 years. 1 Weatherspoon raises a number of points relating to qualification of a juror, admission of evidence, and the instructions. Affirmed.
Weatherspoon had been dating the victim, Roberta Loy Hearn. Hearn, however, informed Weatherspoon she was going to end the relationship. Weatherspoon became upset and tried to talk with Hearn, but she indicated she did not want to talk with him.
Hearn lived with Michelle Marion in an apartment at the Colonial Estates Apartments in Raytown, Missouri. Both were employed by AT&T as long distance operators. On February 8, 1984, Hearn left her apartment shortly after 7:00 a.m. to go to work. Her car was parked in the lot opposite the walk and door leading to the hallway where her first floor apartment was located. Shortly after Hearn left the apartment, Marion heard a car honking and went to the hall door leading to the parking lot and opened it. She saw Hearn sitting in her car and Weatherspoon standing on the sidewalk with a shotgun. Hearn was moving around in the car and Weatherspoon was moving the gun to keep it aimed at Hearn with each movement.
Marion shouted to Weatherspoon to stop and Weatherspoon turned around and fired toward Marion, striking her in the chest. When Weatherspoon shot Marion, Hearn got out of her car and started running. As she did so a car arrived in the parking lot to pick up a girl who was going to high school. Hearn ran up to the girl and pled for help and tryed to get into the car. Before Hearn could enter the car Weatherspoon caught up with her and shot her in the neck. The shot passed through Hearn's hand and neck and broke a window in the car she had been trying to enter. After being shot Hearn fell to the pavement. Weatherspoon stood over her and reloaded his single shot shotgun, placed the barrel of the gun by her right ear and pulled the trigger. The blast blew off the top of Hearn's head and blew most of her brain out. Weatherspoon again reloaded the gun and fired, this time striking Hearn in the lower back.
Weatherspoon was observed by a number of witnesses who said that after Weatherspoon shot Hearn, he calmly walked away from the body and got in his car. As he left the parking lot he passed Hearn's body.
Weatherspoon testified and stated that he had borrowed a friend's car to go to Hearn's apartment. He used a borrowed car so that Hearn would not know that he was around because she would recognize a Triumph which Weatherspoon had been driving. Weatherspoon stated that he had purchased the shotgun a year or two before the shooting. Other evidence indicated that Weatherspoon had made inquiry concerning the type of shot to be used in the shotgun so that the ammunition would kill and not just wound.
Although not contained in the record, it appears Weatherspoon filed a notice that his defense was to be not guilty by reason of mental disease or defect. Two psychologists and a psychiatrist testified but none gave an opinion that Weatherspoon suffered any mental disease or defect within the meaning of Chapter 522, RSMo 1978. A psychologist who had examined Weatherspoon at his request testified that Weatherspoon was emotionally upset over the termination of the relationship by Hearn and that his emotions had overcome his reason at the time he killed Hearn. However, the psychologist did not believe Weatherspoon was suffering from any mental disease or defect.
Weatherspoon first contends the court erred in permitting the venire to be questioned regarding their attitudes concerning the death penalty and in striking those who said they could not vote for the death penalty. This contention has been raised and rejected by the Missouri Supreme Court on a number of occasions, the most recent in State v. Roberts, 709 S.W.2d 857 (Mo. banc 1986). It has now been rejected by the U.S. Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).
Weatherspoon next contends the court erred in failing to sustain a challenge for cause against venireman Anderson. Weatherspoon contends that Anderson had prior knowledge of the offense from a police officer, fellow workers, the newspaper and knew the trial judge and a state's witness. A review of the examination of Anderson reveals that she obtained no knowledge of the crime from the police. This contention along with the contention that she knew a state's witness apparently refers to the fact that she was familiar with the name of Detective Zubeck of the Raytown Police Department. However, Anderson said that she did not know Zubeck but that her husband did know him. There was nothing to indicate that she had heard anything about the crime from Zubeck either directly or indirectly. Anderson worked for AT&T but there was no indication of whether or not she worked in the same building as Hearn or was acquainted with her. She stated that she had heard some talk at work but she could set aside anything that she had heard and decide the case on the basis of the evidence presented in court and the instructions. She also stated she had read about the case in the newspaper but had not formed an opinion. She stated that she knew the trial judge but this would not affect her.
After being examined by counsel and the court Anderson stated unequivocally that she could reach a verdict solely on the evidence as presented in court and the law as given by the judge. It is beyond question that the trial court has a wide discretion in determining the qualifications of a venireman and that decision will not be disturbed absent a clear abuse of discretion and a real probability of injury. State v. Smith, 649 S.W.2d 417, 422 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Although Weatherspoon makes broad statements concerning Anderson, a review of her examination does not reveal any ground which would support her removal for cause. Anderson stated she had lived in Raytown for over 20 years but like the other contentions, this would supply no ground for disqualification absent a showing that she was unwilling or unable to be a fair and impartial juror. There was no abuse of discretion in failing to sustain the challenge for cause to Venireman Anderson.
Weatherspoon next contends the court erred in admitting in evidence the blood soaked clothing of Hearn, photographs of the body of the victim, and a photograph of the automobile showing a window broken. The contention is that these items were inflammatory and that the photographs are extremely obscene, offensive, and vulgar. Weatherspoon states that he offered to stipulate to the nature and location of the wounds and that this obviated the necessity for introducing the pictures. In State v. Clemons, 643 S.W.2d 803, 805 [1-3] (Mo. banc 1983), the court stated that even though the defendant may have offered to stipulate to the cause of death the right of the state to offer relevant and material evidence cannot be taken away by such an offer. The court further stated that the admission of photographs was discretionary and erroneous only if the ruling resulted in fundamental prejudice and an abuse of discretion. The court added that if the photographs tend to be shocking and gruesome it is because the crime is of that sort. The court concluded that accurate portrayals will always be inflammatory and the photographs there involved were no more gruesome than any photographs which would depict persons burned to death.
In this case a number of photographs of the body were offered but the court excluded most of them except the photographs showing the body in the parking lot and on the morgue table. One photo shows the body lying on the parking lot with a part of the head missing. It also shows a large mass of brain a few feet away. The other photo taken in the parking lot shows the body from the back. There is nothing inflammatory about it. The photograph taken in the morgue shows the lower torso with a hole in the lower part and also shows the right hand which was shot. The exhibits corroborated the testimony of the medical examiner and the police as to the appearance of the body and its location in the parking lot. The fact that oral testimony described the facts portrayed in the photographs is no reason to reject the demonstrative evidence if it is otherwise relevant. Id. at 805 [4-6]. The photographs were relevant and two of them could be described as gruesome. However, the killing by use of a 12 gauge shotgun was a gruesome crime. The photos enabled the jury to see exactly what wounds were inflicted and to observe their effect. No more pictures were admitted than necessary to aid the jury in understanding the facts. Weatherspoon is in no position to complain that because the crime was gruesome no pictures which depict his actions could be shown. There was no abuse of discretion demonstrated in admitting the clothing and photographs.
Weatherspoon contends that the court erred in allowing Tamara Pohman and Bruce Varner to testify and to identify a card containing the fingerprints of Weatherspoon taken by Pohman. Pohman, a records and detention clerk with the Raytown Police...
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