State v. Weatherspoon

• Decision Date: 24 February 1987
• Docket Number: No. WD,WD
• Citation: 728 S.W.2d 267
• Parties: STATE of Missouri, Respondent, v. Barry J. WEATHERSPOON, Appellant. 37624.
• Court: Missouri Court of Appeals

Page 267

728 S.W.2d 267

STATE of Missouri, Respondent, v. Barry J. WEATHERSPOON, Appellant.

No. WD 37624.

Missouri Court of Appeals Western District.

Feb. 24, 1987.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 31, 1987.

Application to Transfer Denied May 19, 1987.

Sean 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, P.J., and NUGENT and LOWENSTEIN, JJ.

NUGENT, Judge.

Defendant Barry J. Weatherspoon was tried for shooting Michelle Marion in the chest with a .12 gauge shotgun. The jury found him guilty of assault in the first degree, § 565.050 ¹, and armed criminal action, § 571.015. The court imposed concurrent terms of twenty-six years in prison for each offense. Defendant was also charged with capital murder ² for shooting and killing Roberta Loy Hearn during the same incident, but that charge was severed for trial. See State v. Weatherspoon, 716 S.W.2d 379 (Mo.App.1986) (defendant's conviction of capital murder affirmed).

The defendant raises six points in this appeal, claiming that the trial court erred: (1) in overruling his challenge for cause against venireman Hulda Peterson, who initially indicated a belief that the defendant should present evidence of innocence to counter the state's evidence of guilt; (2) in giving MAI-CR2d 1.02 and MAI-CR2d 2.20 in that those instructions improperly define "reasonable doubt" as proof that leaves the jury "firmly convinced" of a defendant's guilt; (3) in overruling defendant's motion in limine to exclude the details of Roberta Loy Hearn's death as irrelevant; (4) in allowing the state, over defendant's objection, to cross-examine Dr. Mandracchia and Dr. Hornstra about whether defendant had a mental disease or defect even though defendant had asserted the mental defense of diminished capacity, not insanity; (5) in giving jury instructions number 7 and number 9 and in refusing instructions "B" and "C" in that the language in the instructions given did not emphasize the state's burden to prove that defendant acted with the specific intent to kill or cause serious physical injury, and (6) in violating double jeopardy principles by submitting jury instruction number 13, the verdict director for armed criminal action, in addition to the verdict director for first degree assault.

For the reasons set forth below, we affirm the judgment.

Michelle Marion and Roberta Loy Hearn, long distance operators employed by A.T. & T., had shared an apartment at the Colonial Estates Apartments in Raytown since 1981. Roberta Hearn and the defendant had been dating for several years. In the summer of 1983, she began to date other men as well and by January, 1984, had decided to end her relationship with the defendant. He became distraught and on several occasions tried to persuade her to change her mind. Ms. Marion testified that the couple had an unusually violent argument on February 2, 1984, ending when the defendant thrust his fist through Ms. Hearn's dressing table mirror.

A few days later, defendant Weatherspoon questioned Denise Carroll, a co-worker at the Bendix Corporation, about the murder of her sister in 1976. He was particularly curious about the sentence the murderer had received and about the possibility of parole. Denise Carroll recalled that, about a week earlier, she and the defendant had discussed a newspaper article about a family that had been killed. The defendant also asked another co-worker, Steven McCarty, what type of shot a hunter would use to kill large game such as deer. Later, the defendant would use deer slugs in the double shooting of Roberta Hearn and Michelle Marion.

On February 8, 1984, Roberta Hearn said goodbye to her roommate and left the apartment shortly after 7:00 a.m. to go to work. Moments later, Michelle Marion heard a car horn and, assuming her roommate was signaling her because she had forgotten something, went to the hall door leading to the parking lot and opened it. She saw Roberta Hearn moving around in her car and sounding the horn while the defendant stood on the sidewalk matching her movements in order to keep a .12 gauge shotgun aimed at Ms. Hearn.

Seeing her roommate in trouble, Michelle Marion shouted "Barry stop, stop." Defendant Weatherspoon pivoted, then raised his shotgun, pointed it at Ms. Marion, and fired. The force of the gunshot knocked her into the hallway of the apartment building. She made her way back to the apartment, reached for the phone in an attempt to call the police, and then collapsed from her injuries. Dr. Bela Csaki, who later treated Michelle Marion at the emergency room of Park Lane Hospital, stated that her heart had been contused by the blow of the gunshot and that the lower lobe of her left lung was so seriously injured that it had to be removed.

After seeing her friend shot, Roberta Hearn scrambled out the passenger side of her car, ran across the parking lot toward a car that had just pulled in, and pleaded for help. Defendant calmly pursued her while reloading his shotgun and shot her in the neck before she could enter the car. Then the defendant reloaded the shotgun and at close range fired a slug into her head, causing it to explode. For the third time, defendant reloaded the shotgun and fired the final shot, this time striking Roberta Hearn in the lower back.

A number of witnesses saw the defendant calmly walk away from Roberta Hearn's body after the shooting. He entered the car he had borrowed that morning so that Ms. Hearn would not detect his presence and drove past her body as he left the scene. Police arrested him a short time later at a friend's house.

The defendant's first claim of trial error concerns the voir dire examination of a member of the venire, Hulda Peterson. Ms. Peterson acknowledged that she had heard or read a news report associating defendant Weatherspoon's name with the shooting but had formed no opinion about whether he had in fact done the shooting. Defense counsel asked Ms. Peterson whether she would have difficulty presuming Barry Weatherspoon innocent. Ms. Peterson responded, "If proven." The following colloquy took place:

Ms. Chapman: You understand, ma'am, that the burden of proof is on the state and he is, by law, presumed to be innocent. Would you require, after knowing what you know from pre-trial publicity, would you require him to prove his innocence?

Venireman Peterson: It would be nice if he could.

Ms. Chapman: I'm going to ask you what you mean by that.

Venireman Peterson: Well, since the state is presenting a case, it looks like his attorneys would present a case....

Ms. Peterson repeated three more times her notion that the defendant should present some evidence since the state would present evidence. Then, she indicated that she would still require the defendant to present evidence in order to find him not guilty, even if the state failed to prove its case beyond a reasonable doubt.

At that point, the prosecutor, taking a different approach, asked Ms. Peterson whether she would have difficulty following the judge's instructions advising her that, even if he never presents a witness in his defense, the defendant must be found not guilty if the state failed to prove defendant's guilt beyond a reasonable doubt. Ms. Peterson replied, "I'd have to follow his instructions." Defense counsel reexamined her at least six times about her ability to follow the judge's instructions in light of her earlier position. Each time Ms. Peterson indicated in unequivocal terms that she would have no difficulty following the judge's instructions--even if Barry Weatherspoon presented no defense.

At trial, the defendant also objected that the introduction of evidence of the shooting of Roberta Loy Hearn that did not directly bear upon the shooting of Michelle Marion could only serve to arouse the passions of the jury. The court overruled defendant's motion in limine to exclude the testimony of five witnesses, including the testimony of four witnesses who saw him shoot Roberta Hearn but not Michelle Marion. The defendant's contemporaneous objections to their testimony were also overruled. Harland Taft testified that he saw defendant shoot a lady near a hallway and then shoot another lady in the middle of the parking lot. Connie Faustlin, Janet Reynolds, and Christopher Huff each testified that they heard an explosion--presumably the shooting of Michelle Marion--and then went to a window in time to see the defendant shoot Roberta Hearn. Kellye Adams testified that when she pulled into the parking lot to pick up a friend for school, she saw the defendant pursue Roberta Hearn and fire his gun.

Barry Weatherspoon's defense centered on his claim that he was emotionally upset by the termination of his relationship with Roberta Hearn, that he intended to kill himself in front of her, and that he did not know why he shot Michelle Marion. Initially, the defendant had asserted that he had a mental disease or defect that prevented him from being responsible for his conduct. He abandoned the insanity defense before any testimony was taken at trial, however and instead asserted the defense of diminished capacity.

Dr. Steven A. Mandracchia and Dr. Robin K. Hornstra, both psychiatrists, each testified that the defendant was unable to form the specific intent required to commit the offense of first degree assault because of his severe emotional disturbance. In cross-examining the psychiatrists, the prosecutor referred to their psychological examinations of the defendant made in relation to the by then abandoned insanity defense. Over defendant's objection, the prosecutor questioned Dr. Mandracchia about various tests given to defendant to determine his sanity. Furthermore, the prosecutor established that the defendant had no "intellectual mental disease or defect." Similarly, the prosecutor...