State v. Zeitvogel

• Decision Date: 21 June 1983
• Docket Number: No. WD,WD
• Citation: 655 S.W.2d 678
• Parties: STATE of Missouri, Respondent, v. Richard Steven ZEITVOGEL, Appellant. 34604.
• Court: Missouri Court of Appeals

Page 678

655 S.W.2d 678

STATE of Missouri, Respondent, v. Richard Steven ZEITVOGEL, Appellant.

No. WD 34604.

Missouri Court of Appeals,

Western District.

June 21, 1983.

Motion For Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Aug. 2, 1983.

Application to Transfer Denied

Sept. 20, 1983.

William M. Barvick, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., Dan Crawford, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and WASSERSTROM and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from a judgment entered in accordance with a jury conviction for capital murder in violation of § 565.001, RSMo 1978. The jury imposed a life sentence without eligibility of parole until a minimum of fifty years is served. This court has jurisdiction of this appeal by amendment to the Missouri Constitution, Art. V, § 3 (effective December, 1982). State v. Martin, 644 S.W.2d 359 (Mo. banc 1983). The judgment is affirmed.

Prior to setting forth the pertinent facts and considering errors alleged, it is noted that the file on appeal contains two appellant briefs. These dual briefs show filing dates of January 12, 1983 and January 13, 1983 respectively. The first brief in time appears to be filed pro se and the second is filed by counsel. For purposes of disposition of this appeal, the points presented by the dual briefs are addressed collectively without specific reference to either brief.

The errors charged are so numerous and in most instances so lacking in clarity that it is impossible for this court to determine if there is a direct challenge to the sufficiency of the evidence as a whole. In light of this briefing deficiency, this opinion recaps the necessary pertinent facts upon the record.

In combination, the dual briefs present 17 alleged errors. By review of this total and by cross-checking, this number is reduced to 11, as six points between the dual briefs are repetitious.

In summary, appellant charges the trial court (1) committed plain error by admitting a photo of him nude from the waist up, because the photo was not relevant to any disputed issue, was inflammatory and prejudicial, and these features outweighed any probative value; (2) committed plain error by admitting an autopsy photo of the victim, because said photo was inflammatory and prejudicial, and these features outweighed any probative value; (3) erred in admitting (over objection) other photos of the victim, because said photos were inflammatory and prejudicial, and these features outweighed any probative value; (4) committed plain error by admitting a series of photos showing bloodstained floors and stairs, because said photos were inflammatory and prejudicial, and these features outweighed any probative value; (5) committed plain error by admitting hearsay evidence of a witness; (6) committed plain error by ordering appellant and defense witnesses placed in restraints during trial; (7) committed plain error in the submission of an instruction; (8) committed plain error by overruling appellant's motion for acquittal to the charge of capital murder, because the state failed to prove premeditation and deliberation; (9) committed plain error by refusing to acquit appellant at the close of all the evidence, because the state failed to refute appellant's special defense, to wit, self-defense; (10) erred because appellant was denied effective assistance of counsel; and (11) erred in allowing evidence of other crimes which did not tend to prove any element of the crime with which appellant was charged.

The record reveals the following pertinent facts. Appellant, the victim John McBroom, and one Frank Guinan (who was a co-indictee of appellant) were, at the time of this offense, inmates in the Missouri Penitentiary in Jefferson City, Missouri. At about 10:30 a.m. on January 25, 1981, a duty guard, Frederick Matthias, noticed unusual inmate activity in the area where this murder occurred. Inmates Cleveland, Hewitt and Sherill had gathered in an area where they normally would not be, and they were watching the guardhouse occupied by Matthias. Inmates Cleveland and Hewitt repeatedly requested that Matthias ring the buzzer "for mainline [lunch] early". ¹ This was denied by Cleveland and Hewitt. During this same time, Matthias had observed appellant and Guinan make several trips from the lower cell block area (where their cell was located--they were cellmates) to the second level of the cell block where McBroom's cell was located. Approximately at the time appellant and Guinan made their last trip to the second level, inmate Cleveland again requested Matthias to sound the mainline buzzer early. Matthias testified that the sounding of the buzzer would have produced massive inmate traffic and noise in the area. Matthias also had observed McBroom's cellmate, Houchins, leave the McBroom/Houchins cell (Cell 36) unusually early that day.

Because of all of this observed activity, Matthias called his captain, Robert Borghardt, who in turn called Lieutenant Wyrick and instructed Wyrick to meet him in the area. Moments after calling Borghardt, Matthias observed appellant and Guinan exit McBroom's cell. Both appellant and Guinan were covered with blood, and both were armed with knives. Appellant and Guinan observed Matthias looking at them, and both ran to the next level of the cell block. At this time, Borghardt and another officer, McDaniel, arrived in the area. Appellant and Guinan were engaged in a confrontation with another inmate, Camilio, who was also armed with a knife. Borghardt and McDaniel attempted to break up the confrontation between appellant, Guinan, and Camilio. At this point, Matthias observed McBroom, covered with blood, exit his cell. Meanwhile, the attempt at breaking up the appellant, Guinan, and Camilio confrontation continued. Borghardt told the three to give up their weapons, and Camilio stated, "You get their weapons, I'll give you mine." Guinan told Borghardt, "Get out of the way"; he also said to Camilio, "Going to get you like we did your snitching buddy." The evidence further reveals that Guinan stated, "Well we got him, now we are going to get you," while he [Guinan] was looking at Camilio. During this activity, appellant pointed his knife at McDaniel and told McDaniel to "get back".

The evidence further reveals that appellant and Guinan then observed Camilio's cellmate, Medley, and while looking at Medley, appellant stated, "There is another one of the snitches." There also was evidence that appellant stated, while looking at Medley, "That is the other snitching punk mother fucker." Both appellant and Guinan then ran toward Medley. Borghardt pursued Guinan, appellant pursued Borghardt, and McDaniel pursued appellant. When Guinan reached Medley's presence, he tried to stab Medley. Medley defended himself against Guinan's attack by using a box fan. Borghardt caught up with Guinan and restrained him with a bear hug. As Borghardt and Guinan struggled, Medley ran. Wyrick arrived at the scene, and Camilio surrendered his weapon to Wyrick. Guinan attempted to free himself from Borghardt's grasp, while attempting to stab Borghardt. Borghardt called for assistance from Wyrick. In the meantime, appellant had gotten behind Borghardt and told Borghardt, "Turn him [Guinan] lose [sic] or I'll kill you, you fat son-of-a-bitch." At this time, appellant raised his knife to stab Borghardt, but was restrained by McDaniel. McDaniel and other officers then subdued appellant and disarmed him. Borghardt subdued and disarmed Guinan.

Other evidence for the state included testimony of Dr. Carl Baker, Chief Medical Officer for the penitentiary, which included his observation of McBroom's body. Baker stated that he observed 16 stab wounds. Some two hours after Baker's examination, McBroom's body was observed by Dr. Ray Doerhoff, Chief Surgeon for the penitentiary. Doerhoff testified to the multiple stab wounds. Dr. Fred Handler, a pathologist, performed an autopsy on McBroom's body. Handler testified to the multiple stab wounds, and as to the cause of McBroom's death stated, "In my opinion he bled to death from the multiple stab wounds."

A penitentiary investigator testified concerning his investigation of the crime scene. Photos secured in that investigation were admitted (over objection) into evidence. Another investigator physically examined appellant some four hours after the incident in question. This investigator testified he observed no visible wounds upon appellant, and appellant made no complaint of injury and did not require or request any medical attention. A photo, taken at the time of the investigation, and showing appellant nude from the waist up, was admitted into evidence.

Appellant called eleven inmate witnesses. In summary, these witnesses testified to having observed the victim McBroom with a pair of scissors on the day of the murder. Some of these witnesses testified McBroom told them he was going to kill Guinan and appellant. Others testified they overheard McBroom telling others of his intention to kill Guinan and appellant.

Appellant testified on his own behalf. He stated that McBroom called him to McBroom's cell and that when he entered McBroom's cell, McBroom attempted to stab him. Appellant further stated that in self-defense, he disarmed McBroom and killed him.

Because one of the inmate witnesses testified the prosecutor promised to help the witness on his own sentence in exchange for favorable testimony, a rebuttal witness was called to refute this allegation.

The evidence closed. The jury returned its guilty verdict. The second phase, as to punishment, of our bifurcated system in capital proceedings was conducted, and upon completion the jury assessed as punishment against appellant a life sentence without eligibility of parole until a minimum of 50 years is served. This appeal followed.

Under his point (1), appellant charges the trial court committed plain error in...