State v. Weeks

CourtCourt of Appeal of Missouri (US)
Citation982 S.W.2d 825
Docket NumberNos. 20107,22046,s. 20107
PartiesSTATE of Missouri, Respondent, v. Ted Edward Leroy WEEKS, Appellant. Ted Edward Leroy Weeks, Appellant. v. State of Missouri, Respondent.
Decision Date31 December 1998

Gary E. Brotherton, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Appellant, charged with murder in the first degree, § 565.020, RSMo Cum.Supp.1992, was found guilty by a jury of murder in the second degree, § 565.021, RSMo 1986. The jury assessed punishment at thirty years' imprisonment. The trial court entered judgment per the verdict. Appellant brings appeal 20107 from that judgment.

While that appeal was pending, Appellant filed a motion to vacate the judgment pursuant to Rule 29.15. 1 The motion court denied relief after an evidentiary hearing. Appellant brings appeal 22046 from that judgment.

This court consolidated the appeals, Rule 29.15(l ), but addresses them separately in this opinion.

Appeal 20107

Appellant raises four issues in this appeal. He maintains: (1) the evidence was insufficient to support the verdict; (2) he was denied his constitutional right to a speedy trial; (3) the trial court committed plain error in failing to declare a mistrial sua sponte when a State's witness "referred to [Appellant's] prior criminal history"; (4) the trial court committed plain error in failing to declare a mistrial sua sponte when the prosecutor made allegedly improper remarks during closing argument.

The victim was Levi Hodge. He was stabbed to death in his mobile home December 25, 1992, by Randy Miles. Appellant was present.

The trial court submitted the case to the jury by instructions hypothesizing that Appellant was criminally responsible for Miles's 2 conduct in that Appellant acted with Miles with the common purpose of committing the murder and aided or encouraged Miles in committing it. See: § 562.041.1(2), RSMo 1986.

In adjudicating Appellant's claim that the evidence was insufficient to support the verdict, this court accepts as true all of the evidence favorable to the verdict, including all favorable inferences drawn therefrom, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). This court's review is limited to a determination of whether there was sufficient evidence from which a reasonable juror might have found Appellant guilty beyond a reasonable doubt. Grim, 854 S.W.2d at 405.

Hodge--the victim--was a "car dealer" in Rolla.

William F. Howard was Hodge's "chauffeur" for "about a year" before the homicide. 3 Howard recounted that in "September or October" of 1992, Hodge made a "deal" with Appellant whereby Appellant was to buy an "El Dorado" from Hodge for $3,600. Appellant took possession of the El Dorado, promising to pay for it "the next Tuesday ... with a credit card."

Appellant failed to appear on the appointed date.

Howard subsequently drove Hodge to Appellant's residence in Maries County several times looking for Appellant and the El Dorado. They found neither. However, Appellant's wife and a child were there. Hodge talked to them.

Howard was at Hodge's mobile home on an occasion when Appellant telephoned Hodge. Hodge's phone was "on ... a speaker," hence Howard heard what Appellant said. Asked to repeat the conversation, Howard testified:

"When Mr. Hodge said, 'I've been looking for you, you son of a bitch,' Mr. Weeks replied, 'I know. And if I would have been here, I would have killed you then.' "

Miles--the stabber--was released from the Missouri Department of Corrections in November 1992 after serving eighteen years and four months of a twenty-year sentence for murder in the second degree. About eight or nine months before his release, Miles "had become really acquainted" with Appellant. Miles told Appellant he (Miles) was "doing time for murder." Miles testified: "At one point [Appellant] had give me a phone number and told me if I needed some help, all I had to do was call him."

After his release, Miles "was having problems adjusting." He contacted Appellant and began visiting Appellant at Appellant's residence. Appellant told Miles about the problem Appellant was having with Hodge. Describing the dispute, Miles testified:

"[Ed 4] purchased ... an El Dorado ... and supposedly when the original deal was made ... Levi had advised Ed that the only thing wrong with the car was that it needed a tuneup. So Ed gave it a tuneup and it wasn't working right. It ended up at O's Cadillac Company in Jeff City. Supposedly $1400 worth of work was done on it. He drove it from the outskirts of Jeff City to his home, and back to a small town in between, at which time the engine threw a bunch of stuff up on the windshield.... And on top of that, he was served a court order to appear in court for failure to pay the Cadillac company for the work that was already rendered."

Miles was at Appellant's residence "somewhere around the first part of December [1992]." He overheard a telephone conversation between Appellant and Hodge. Asked what Appellant told Hodge, Miles replied:

"There was discussions about money owed and that it would be taken care of. And Ed was upset and told Levi that if he didn't quit pestering his family that he was going to kill him."

Miles spent "the weekend before Christmas [1992]" at Appellant's residence. One night that weekend a car entered the driveway and "some people got out." Miles suspected "it was going to be a drive by shooting over the situation that was going on with Levi." Miles, Appellant and Appellant's "oldest boy" armed themselves and went outside. The unknown people "jumped in the car and ... took off." Although Miles and Appellant never confirmed that Hodge was involved in the incident, Miles told Appellant he "ought to get ahold of Levi and straighten things out, because his family didn't deserve to live under that kind of stress and strain."

Miles and Appellant subsequently went to Hodge's mobile home "to see if [they] could talk to him." Miles was armed with "an over and under." Appellant was armed with a .32 caliber pistol. Asked why they were armed, Miles answered:

"Levi has a reputation of being very unscrupulous and having a backup, because he had done a lot of things wrong to a lot of people. And we ... didn't want to walk in and him have five or six people and making something ignorant happen; walk in deaf, dumb and blind."

Hodge was not home. Miles and Appellant did not look for him elsewhere.

On Christmas Eve 1992, Miles was experiencing "anxiety attacks." He phoned Appellant. Appellant invited Miles to "come on up" and added that they might "take a run over and talk to Levi and try to get things squared away."

Appellant contacted Hodge and arranged a meeting for "7:00 or 8:00" on "Christmas night."

Miles drove to Appellant's residence. There, they drank beer and discussed the impending meeting with Hodge. Miles was to be Appellant's "backup." Miles explained:

"[I]n the event things got ugly, we were prepared to defend ourselves and do whatever was necessary."

Miles armed himself with the .32 caliber pistol and "a Bowie hunting knife." Appellant carried a ".25 automatic."

Miles told the jury he considered Appellant "a brother." Miles described the relationship:

"[U]nder the convict code which I live, if I'm ever called upon by a partner or a friend to give him backup, then he has the control of the situation and I am there only to the capacity that is needed or asked for or required.... [Ed] was well aware of that, directly and indirectly.... [H]e was very well aware of what the convict code is because it had been discussed."

When Miles and Appellant arrived at Hodge's mobile home, Appellant introduced Miles to Hodge as "a prospective buyer for a car."

Inside the mobile home, Appellant and Hodge discussed the sum owed Hodge on the El Dorado, the $1,400 repair bill, and Appellant "having to go to court."

Miles asked to use the bathroom. Hodge told Miles to "use the one up in the front bedroom."

After relieving himself, Miles saw "a stack of Polaroid pictures on the back of the commode." According to Miles, the pictures showed children, and some pictures "portrayed sexual situations."

Miles, who had been sexually abused as a child, 5 became "enraged." He put on a pair of leather gloves, removed the pistol from his waistband beneath his coat, and started out of the bathroom.

At that point, the conversation between Appellant and Hodge turned to the possibility of Miles "test driving a Cadillac." Miles "snapped out of the emotional turmoil" and "realized this was Ed's situation." Miles reentered the bathroom, removed the gloves, returned the pistol to his waistband, and exited the bathroom.

Hodge handed Miles a ten-dollar bill and the keys to a Cadillac. Hodge told Miles to drive to a gasoline station, put five dollars worth of gasoline in the car, and when he returned they would "talk about that car."

When Miles returned to Hodge's residence, Appellant and Hodge were still conversing. Miles handed Hodge the Cadillac keys and "five dollars in change."

Miles began thinking about the pictures of the children; this caused him anger and turmoil. He entered the bathroom, put on the gloves, withdrew the pistol, returned to the living room, levelled the pistol at Hodge's face, and told him "the time for talking was over."

Hodge said that if Miles and Appellant needed money, he "could go to the bank tomorrow."

Miles "snapped out" of his anger and realized he had "overstepped [his] boundaries." Miles "backed up" and handed the pistol to Appellant. However, added Miles: "I had the knife out and I was within range of Levi, that if Levi had tried to hurt Ed or do anything that I could get between the two of them."

Appellant and Hodge resumed their...

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