State, v. Wolfe

• Decision Date: 22 February 2000
• Citation: 13 S.W.3d 248
• Parties: (Mo.banc 2000) . State of Missouri, Respondent, v. Danny R. Wolfe, Appellant. Case Number: SC81372 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

13 S.W.3d 248 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Danny R. Wolfe, Appellant.

Case Number: SC81372

Supreme Court of Missouri

Handdown Date: 02/22/2000

Appeal From: Circuit Court of Camden County, Hon. Mary A. Dickerson

Counsel for Appellant: Deborah B. Wafer

Counsel for Respondent: Barbara K. Chesser and James Icenogle

Opinion Summary:

Danny Wolfe was convicted of two first-degree murders and received two death sentences, among other convictions and sentences. He appealed.

AFFIRMED.

Court en banc holds:

(1) (A) The state's questions to the eyewitness, Jessica Cox, about her immunity agreement were not improper vouching. Vouching occurs when a prosecutor implies that he or she has facts not before the jury. Here, the jury had all the facts about the agreement. The prosecutor did not directly vouch for the truthfulness of the charge.

(B) The state's questions were not improper bolstering. If the out-of-court statement is offered for relevant purposes other than corroboration and duplication--such as rehabilitation as here--there is not improper bolstering.

(C) The court did not err in allowing each member of the jury to view a copy of the immunity agreement.

(2) The court did not err in refusing to allow questions about Cox fabricating a kidnapping story when she was 12 years old. A witness' credibility may not be impeached with specific acts of misconduct, without proof of bias or relevance. None of the exceptions to the general ban on impeachment for bias apply. The incident was collateral to the trial issues and too remote in time to be relevant.

(3) Prosecutors may discuss testimony with their witnesses during overnight recesses.

(4) The state did not timely disclose a fellow inmate, Paul Hileman, who testified against Wolfe, violating Rule 25.03(A)(2). But no fundamental unfairness occurred. The defense had sufficient time to prepare for his testimony and investigate potential impeachment, and produced no new exculpatory evidence between the verdict and hearing on the motion for a new trial.

(5) (A) The court's refusal to compel disclosure of all uncharged crimes that could be brought against Hileman--without specifying what information was sought--did not affect the trial's outcome. The defense impeached Hileman with convictions, drug use, lies, and attempts to tamper with a witness.

(B) The defense sought questionnaires to jail personnel for evidence against Hileman. This Court examined the questionnaires, in camera, and finds no evidence or material likely to lead to admissible evidence. (6) The court did not abuse its discretion in refusing to publish to the jury Hileman's 13 letters, which Hileman acknowledged and which were admitted into evidence.

(7) (A) The court did not err in refusing a continuance based on a witness' unavailability when there was no evidence the person could be located within a reasonable time.

(B) The witness' affidavit was properly excluded. It was not stipulated to by the parties. A proper foundation for impeachment did not occur. Other foundation requirements, such as authentication and hearsay, were absent. It was never subject to cross-examination.

(8) The court did not err in admitting rings or ring boxes. Although no direct evidence linked them to the victims, they were found with other evidence and any prejudice was minimal.

(9) The prosecutor's misstatement of Cox's testimony in closing argument was harmless. The defense also misstated the evidence, and Wolfe was not prejudiced.

(10) The use of the word "you" does not necessarily mean improper personalization. None of the prosecutor's statements suggest personal danger to the jurors or their families.

(11) The court did not abuse its discretion in permitting a blow-up of victim photographs in the sentencing phase. The jury had already seen smaller versions, and they served legitimate purposes in closing argument.

(12) The Court again rejects a challenge to criminal instruction's definition of "reasonable doubt."

(13) (A) The death sentences satisfy independent statutory review under section 565.035.3. Among the considerations, the sentence is supported by the strength of the evidence. There is an eyewitness, and Wolfe had a criminal record.

(B) The Court's statutory proportionality review is constitutional. It is not constitutionally mandated; it is an additional safeguard against capricious sentencing.

Dissenting opinion summary:

The dissenting author would find that the trial court improperly kept from the jury critical evidence calling into question Cox's credibility, which was the central factual issue, thus precluding Wolfe from presenting a defense and denying him the right to a fair trial. The dissenting author would have admitted Cox's prior false reports for impeachment and other evidence suggesting persons other than Wolfe committed these murders. Finally, after a review of the evidence with its inconsistencies, the dissenting author would find that the strength of the evidence does not support the death penalty. The statutory review is to safeguard against execution of those who may not be guilty, both for the defendant and the legal system. Under that review, the dissent would find the evidence leaves substantial doubt as to Wolfe's guilt. The dissent would grant a new trial or set aside the death sentence.

Opinion Author: Duane Benton, Judge

Opinion Vote: AFFIRMED. Price, C.J., Limbaugh, Covington and Holstein, JJ., concur; Wolff, J., dissents in separate opinion filed; White, J., concurs in opinion of Wolff, J.

Opinion:

Defendant Danny R. Wolfe was convicted of two first-degree murders, two counts of armed criminal action, and one count of first-degree robbery. He received two death sentences, and three terms of life imprisonment. This Court has exclusive jurisdiction of the appeal. Mo. Const., art. V, sec. 3. Affirmed.

I.

On review, this Court accepts as true all evidence favorable to the State, including all favorable inferences from the evidence, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993); State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). This Court does not sit as a thirteenth or super juror, voting "guilty" or "not guilty" on the charge. Grim, at 413, 414.

On February 19, 1997, defendant went to the home of a co-worker in Camdenton, and asked to leave a bag there. Agreeing, the co-worker placed the bag in the laundry room. Another man staying at the house looked in the bag and saw what looked like a gray or white wig.

That evening, defendant went to a bar in Lake Ozark. He met Jessica Cox, introduced himself as "Danny," and played a game of pool with her. Afterward, they sat at the bar and talked.

Defendant asked Cox if she was "into drugs." She said yes. Defendant asked if she could "get rid of" some drugs for him. She agreed.

When the bar closed, defendant and Cox left in his pick-up. Defendant said that he would give her a ride home and could get her the drugs. The two then stopped by defendant's room at a motel for about 20 minutes.

Defendant said that they should go to Camdenton. He drove them to the co-worker's house, where he retrieved the bag left earlier. They then returned to the motel.

Defendant told Cox that they would have to go to Greenview to "pick up some money," but could not leave until 4:30 a.m. Cox asked defendant to take her home. Defendant replied that it would be worth her wait. She decided to stay.

Defendant took some silver handcuffs from the bag. Cox asked why he had them. Defendant said not to worry, he wasn't going to use them on her. The pair watched television and talked for about two hours.

Around 4:30 a.m. on February 20, the two drove into Camdenton. Defendant stopped at a gas station. Handing over $6, he told her to buy a pair of jersey gloves -- which she bought.

They headed toward Greenview on Highway 7, by the home of Leonard and Lena Walters. After about a quarter mile, defendant pulled into a gravel road, turned the truck around, and parked facing the highway. It was about 5:15 a.m.

Defendant announced that he planned to rob the Walters, whom he described as "loaded." Defendant had been to the house before and said that the Walters had a car for sale. He had indicated that he would return with his girlfriend. Defendant instructed Cox to test-drive the car with Mr. Walters for about 15 minutes, while he would stay behind, handcuff Mrs. Walters, and rob them. Defendant told Cox to call him "Sam" around the Walters and to use "Jo-Jo" for herself.

Defendant was wearing black, shiny, parachute pants and a camouflage jacket, which he had changed into at the motel. He took out the handcuffs, put on the jersey gloves, and polished the handcuffs. Defendant gave Cox a pair of gloves that were already in the truck.

After waiting in the truck for about two hours, defendant drove back to the Walters' house and pulled into the driveway. He then knocked on the front door. Mrs. Walters came to the door, wearing what "looked like a nightgown." Defendant entered the house and came back out with Mr. Walters. They walked to a red Cadillac in front of the house.

Cox joined them at the Cadillac. Mr. Walters invited Cox to test-drive it. Defendant asked Mr. Walters if he was going along. Mr. Walters replied there was no reason to. Cox said she would appreciate it, to tell about the car. Mr. Walters then got in the front passenger seat. As Cox put the car in drive, defendant jumped into the passenger side back seat, saying, "Let's go, Jo-Jo."

Cox drove toward Greenview. Mr. Walters and defendant discussed the car. After driving a while, Cox turned around, returning toward the Walters' house.

Hearing a "loud bang," Cox swerved and glanced over to see Mr. Walters' head fall forward with blood coming out of his mouth. Defendant had shot Mr. Walters in...