State v. Werner, s. 15798
| Decision Date | 09 May 1991 |
| Docket Number | Nos. 15798,16636,s. 15798 |
| Citation | 810 S.W.2d 621 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Larry Herbert WERNER, Defendant-Appellant. Larry Herbert WERNER, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., M. Melissa Manda, Asst. Atty. Gen., Jefferson City, for the State.
Susan L. Hogan, Columbia, for Larry Herbert Werner.
Count I of an information charged that defendant, Larry H. Werner, committed murder in the first degree in that defendant, after deliberation, knowingly killed Calvin F. Long (Long) by shooting him. § 565.020.1. Count II charged that defendant committed that felony with a deadly weapon and was guilty of armed criminal action. § 571.015.1. The state waived the death penalty. The defendant entered a plea of not guilty by reason of mental disease or defect excluding responsibility. A jury found the defendant guilty of murder in the second degree, § 565.021.1(1), and armed criminal action. In accordance with the verdicts, the defendant was sentenced to terms of life imprisonment and three years' imprisonment, to be served concurrently. Defendant appeals those convictions. Defendant also filed a pro se and an amended motion for relief under Rule 29.15. That motion was denied by the motion court without an evidentiary hearing. Defendant also appeals that denial. The appeals have been consolidated.
On December 26, 1990, this court adopted an opinion affirming the judgments of criminal convictions and ordered defendant's motion for relief under Rule 29.15 dismissed as untimely because it was filed more than 30 days after the transcript was filed in this court. This court denied the defendant's motion for rehearing or transfer. The Supreme Court of Missouri, upon defendant's motion, ordered the appeals transferred to that court. Subsequently, the Supreme Court retransferred the appeals for reconsideration in light of Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991).
Again, the appeals will be treated separately. Luleff v. State, supra, and Sanders v. State, supra, are directed to Rule 29.15 and will be considered in the portion of this opinion pertaining to the denial of defendant's motion under Rule 29.15.
No. 15798--Direct Appeal
The following is an outline of the factual background. Additional facts will be set forth as necessary for the consideration of defendant's two points. Defendant first met Long in the early 1970's. They became friends partly due to the fact they were both homosexual and married. After several years of friendship, defendant and Long came in contact again and began engaging in sexual activities in 1986. Defendant was in the process of the dissolution of his second marriage to his only wife. His wife was granted a decree of dissolution in April 1986. Long was still married but had been having marital difficulties. Both defendant and Long had children from their marriages. Defendant and Long lived together in various towns. In February 1987 defendant moved to a house owned by his parents on Greensferry Road in Jackson, Missouri. Long would periodically stay with defendant at the house in Jackson. The relationship between defendant and Long had been unstable for some time because Long was indecisive about whether he wanted to stay with defendant or return to his wife and son. Defendant became more and more upset about the status of the relationship. Defendant had received phone calls informing him that Long was seeing other men. Two weeks before he shot Long, defendant had packed Long's belongings and told him to leave defendant's house.
Defendant became depressed. He had previously been hospitalized for treatment of depression. He talked of suicide. He had apparently attempted suicide by an overdose of Xanax, Valium and anti-depressants. Defendant talked many times with Long about killing himself. On June 7, 1987, defendant bought a rifle, some flexible hose and tape, and had two prescriptions for Xanax filled. Long stayed with defendant the night of June 8, 1987. The next morning, Long went to his shop to work as a hairdresser. He returned to the defendant's house that evening. The two spent the evening talking about their relationship.
Defendant was upset and during the course of the evening told Long that he knew he was going to shoot himself because he couldn't go on the way that things were going. Defendant and Long went to bed around 10 p.m. and lay in bed talking. When defendant continued to talk about dying, Long told him, "If you want to die so bad, go get that gun and shoot yourself and I will watch." Defendant went downstairs and waited for Long to come talk to him. When Long did not come downstairs, defendant went back upstairs and stood in the doorway. Long did not turn around. Defendant switched on the light, took the gun from behind the bedroom door and held the gun to his own head. When defendant told Long to watch defendant shoot himself, Long turned and told defendant not to do it. At the same time, Long mentioned something about his son Todd coming over to the house. Following that statement, defendant began shooting Long. Long was shot five times. One shot was in the right temple. Three shots were to the chest; one penetrated the heart, and another passed through the right lung. The fifth shot through the right forearm appeared to be a defensive wound.
After he shot Long, defendant went to the sheriff's office around 11:45 p.m. and told the officers that he had just shot Calvin Frank Long. When the police arrived at defendant's house, the rifle was found where defendant had indicated and Long was found nude in bed. He was pronounced dead at the scene.
The defendant testified. He related his marital problems, his recognition of his homosexuality, various homosexual relationships, and emotional and mental difficulties. He emphasized the intensity of his mental agitation and depression resulting from the unstable nature of his relationship with Long. He presented expert testimony that his depression was of such a degree that it was a mental disease and he was not guilty by mental disease or defect. The state presented expert testimony to the contrary.
After he related the earlier events of the ill-fated evening up to his return to the bedroom, the defendant was asked what happened next. His testimony then included the following.
"A He turned around and sort of sat up and grabbed a pillow that--I always slept with two pillows--and he scooted toward me. He scooted toward me.
Q How were you feeling at this time?
A I couldn't tell you.
Q Well, were you okay, feeling good?
A No. He wanted to watch me die.
Q Was anything else said?
A He said
Q I can't hear you.
A He said
Q Then what happened?
A And he turned toward me--he was already toward me and grabbed the pillow, and he said something about Todd, something about Todd could come to the house, and he just sat up--he wasn't sitting up. He was leaning on his arm, his left arm, with the pillow. And the next thing I knew--
Q The next thing you knew what?
A I was shooting him.
Q What did the statement 'Todd is coming,' did that cause you to react?
A I knew he was lying to me."
He later said he didn't know why he shot Long.
Defendant's first point is that the trial court erred in refusing the defendant's tendered instruction on the lesser included offense of voluntary manslaughter because there was evidence the defendant acted under the influence of "sudden passion". He argues that an instruction on voluntary manslaughter, § 565.023, was warranted because the jury "could have found Long's comment about Todd was enough to provoke (defendant) to violence."
By the construction of § 565.021 and § 565.023, acting "under the influence of sudden passion arising from adequate cause", § 565.023.1(1), is a special negative defense to the crime of conventional second degree murder. See MAI-CR 3d 304.11. If there is evidence supporting sudden passion from adequate cause, an instruction submitting conventional murder in the second degree must submit, as an element of the crime, a finding "that defendant did not do so under the influence of sudden passion arising from adequate cause". Further, an instruction on voluntary manslaughter shall be given upon the request of a party or on the court's own motion. MAI-CR 3d 313.04.
"The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause...." § 565.023.1(2).
" 'Sudden passion' means passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation." § 565.002(7).
" 'Adequate cause' means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control." § 565.002(1). (Emphasis added.)
The objective standard set forth in the statute by which adequate cause is to be measured was not altered by the defendant's mental condition.
State v. Merchant, 791 S.W.2d 840, 843 (Mo.App.1990).
Nor was that objective standard altered by the defendant's homosexuality. The standard is a "person of ordinary temperament" and "an ordinary person's capacity for self-control."
The statutes creating the special negative defense of sudden...
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