State v. Wolford, WD

• Decision Date: 21 June 1988
• Docket Number: No. WD,WD
• Citation: 754 S.W.2d 875
• Parties: STATE of Missouri, Respondent, v. Lonnie E. WOLFORD, Appellant. 39300.
• Court: Missouri Court of Appeals

Page 875

754 S.W.2d 875

STATE of Missouri, Respondent, v. Lonnie E. WOLFORD, Appellant.

No. WD 39300.

Missouri Court of Appeals,

Western District.

June 21, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 2, 1988.

Lonnie E. Wolford, Jefferson City, pro se.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SHANGLER, P.J., and LOWENSTEIN and GAITAN, JJ.

GAITAN, Judge.

Defendant, Lonnie Eugene Wolford, was found guilty by a jury in the Circuit Court of Buchanan County of murder in the second degree, § 565.021.1, RSMo (1986), assault in the first degree, § 565.050, RSMo (1986), and burglary in the first degree, § 569.160, RSMo (1986). Based on the jury's recommendations, he was sentenced by the court to consecutive terms of thirty years, fifteen years and eight years respectively. Defendant appeals alleging (1) insufficient evidence from which a second degree murder charge against him could be submitted to the jury; (2) the trial court erred in denying his motion to sever Counts II and III, which charged him with assault in the first degree and burglary in the first degree in connection with the stabbing of Robert Anderson, from Count I, which charged him with murder in the first degree in connection with the shooting of Ricky Blair; (3) ineffective assistance of counsel; (4) the trial court erred in allowing the state to reopen its case to read into evidence a letter written by a defense witness (5) the trial court erred in admitting into evidence a taped conversation between defendant and his wife; and (6) the trial judge erred in refusing to give an instruction on the defense of mental disease or defect. We affirm.

On April 10, 1986, Rick Blair was killed as a result of a gunshot wound inflicted by defendant. At the time of the shooting defendant and his wife, Debra Wolford, were estranged, and Mrs. Wolford was living with their two children and Rick Blair at a trailer court in St. Joseph, Missouri.

Defendant was distraught over the breakup of the marriage, was embroiled in a bitter custody battle with his wife, and was enraged by his wife's relationship with Blair, a friend and former employee of the defendant. On February 3, 1986, four days prior to separating from defendant, Mrs. Wolford tape-recorded a conversation in which defendant threatened to kill both Blair and his wife if she continued her involvement with Blair. During the recorded conversation, defendant told Mrs. Wolford, "I'm not gonna let you see Rick Blair in my house. There's no way. I'll kill you first. You can tell your lawyer that, but there's no way you can prove it. And I'm serious." When Mrs. Wolford asked defendant about what would happen if she saw Blair after the divorce, defendant answered:

What will happen to you, deary? I'll blow your m_____ f___ing brains out, that's what will happen to you. And him, too. And me, too. We'll just all three go together. And don't think I wouldn't do it 'cause I would. My kids are taken away; I don't got nothing to live for anyway.

In the last excerpt of the conversation, defendant warned Mrs. Wolford that he was not going to allow Blair "or any other scurvy m_____ f_____ like that" to be around his children and threatened to "take that nice little .12 gauge of mine and blow your face from here to kingdom come."

Approximately two months later, during the evening of April 10, 1986, Mrs. Wolford heard a knocking at the door of her trailer home. When she answered the door, Mrs. Wolford found defendant standing in the doorway. He wanted to come in and speak with her and Blair. Mrs. Wolford informed him that Blair was asleep and suggested that they "go outside and talk." Defendant pushed his way through the door. Mrs. Wolford noticed that defendant's "left hand was behind his back." She reached behind his back and felt what she "believed to be a gun." At that point, defendant brought what turned out to be a sawed-off .12 gauge shotgun from behind his back and pointed it at Mrs. Wolford's face.

Mrs. Wolford attempted to wrest the weapon away from the defendant, and both she and defendant fell to the floor. When she grabbed for the gun, the defendant repeatedly struck her with his hand. She screamed for Blair to wake up. Blair got up from the couch where he had been sleeping. As Blair started across the living room, defendant got to his feet, got at least one of his hands on the gun, and "gave it a great big jerk." Mrs. Wolford heard a blast, saw Blair stagger toward the defendant, and saw the appellant take Blair's hand and push him aside, causing Blair to fall onto the kitchen floor.

Mrs. Wolford testified that Blair was holding his hands up at "about shoulder height" and positioned about a foot away from the barrel of the shotgun at the time he was shot. A subsequent autopsy indicated that Blair died of massive shotgun wounds to the neck and chest.

After hearing the blast and seeing Blair fall, Mrs. Wolford wrested the gun away from the defendant, and the defendant told her, "He's dead and you will be next." She pointed the gun at defendant and tried to pull the trigger, but nothing happened. Mrs. Wolford ran down the hallway into the bathroom, shut the door and threw the gun underneath the bathroom vanity. The defendant forced his way into the room, grabbed Mrs. Wolford by the hair and began hitting her in the head and banging her head against his knees.

Mrs. Wolford struggled until she freed herself from defendant's grasp, ran out the front door, and ran to the trailer next door which was occupied by Jeannie and Robert Anderson. Mrs. Anderson, who had heard Mrs. Wolford's screams, opened the door, let Mrs. Wolford in and then locked the door. Mrs. Wolford ran to the back of the trailer to a bedroom used by the Andersons' two small children, closed the bedroom door and crawled underneath the bed. Mr. Anderson, having heard "a loud bang" and Mrs. Wolford's screams had already called 911 for emergency assistance.

A few minutes later, Mrs. Anderson heard "a big thud." The trailer door "just swung open" and defendant entered the trailer. Mr. Anderson was again phoning for help. Defendant pulled out a buck knife and stabbed Mr. Anderson in the back. Defendant demanded to know where Mrs. Wolford was hiding, but Mrs. Anderson told him she didn't know what he was talking about and ordered him to leave the trailer. When Mrs. Anderson told him that the police had been called, the defendant yanked the phone off the wall and said he didn't care. He then turned to Mr. Anderson and said, "Buddy, you're dead."

The defendant again attempted to attack Mr. Anderson with the knife, but Anderson defended himself, first by using a beer bottle as a club and then by using a coffee table to ram the defendant. Mr. Anderson succeeded in knocking defendant down. He jumped over the defendant, ran to the back bedroom where his wife was also hiding, closed the door and leaned up against it to prevent the defendant from entering. The defendant tried to break down the door, but fled when police sirens were heard.

Mr. Anderson was stabbed three times in the shoulder and chest. He was taken by ambulance to a St. Joseph hospital where he was placed in intensive care for the treatment of his injuries which included a collapsed lung.

Testifying in his own defense, defendant stated that he was "upset" and couldn't eat or sleep as a result of the breakup of his marriage. He insisted that he took the shotgun with him when he walked through the door of his wife's trailer only because he believed Blair "had forced his way in" to the trailer and had "really knocked the heck out of Debbie." Defendant said his wife became hysterical when she noticed the gun, attempted to wrest it away from him, and that it accidentally discharged, striking Blair, when he gave the gun "a quick jerk" while his wife had her hand on the trigger.

The defendant testified that he was not sure why he entered the Anderson trailer, but knew at the time that he "just had to find Debbie." He said that Robert Anderson "hauled off and hit [him] with his fist" and he hit Anderson back. He testified that, during the ensuing struggle, he stabbed Anderson in the back because Anderson wouldn't let him go. Defendant said that he didn't actually remember stabbing Anderson, but that he "must have stabbed him."

In his initial point on appeal, defendant challenges the sufficiency of the evidence to support his conviction for murder in the second degree under § 565.021.1(2), RSMo (1986). He argues that the evidence was insufficient to support the jury's finding that he had deliberately or intentionally killed Rick Blair with the sawed-off shotgun. Defendant contends that the evidence suggests that "the gun in all reality, went off accidentally either while [he] and his wife were on the floor, each struggling to gain control of the weapon" or when Blair "grabb[ed] ahold of the end of the barrel and pull[ed] the weapon out of [defendant's] or his wife's hands."

To determine whether the state made a submissible case, we view the evidence and inferences in the light most favorable to the verdict and disregard all contrary evidence and inferences. See, e.g., State v. Overkamp, 646 S.W.2d 733, 736 (Mo.1983); State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980). We do not substitute our judgment for that of the jury; we determine whether there was sufficient evidence from which reasonable persons could have found the defendant guilty as charged. See, e.g., State v. Porter, 640 S.W.2d 125, 126 (Mo.1982). Viewed in this light, the evidence was sufficient to establish beyond a reasonable doubt that the defendant was guilty of second degree murder in connection with Blair's death.

A person commits the crime of murder in the second degree if he knowingly causes the death of another person. State v. McKinzie, 736 S.W.2d 571, 575 (Mo.App.1987). Since it is undisputed that...