State v. Zelinger, s. 18215

Decision Date07 April 1994
Docket NumberNos. 18215,18963,s. 18215
Citation873 S.W.2d 656
PartiesSTATE of Missouri, Respondent, v. Donald Ray ZELINGER, Appellant. Donald Ray ZELINGER, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

PARRISH, Chief Judge.

Following a jury trial, Donald Ray Zelinger (defendant) was found guilty of second degree murder. § 565.021.1(1). 1 Defendant was charged as and found to be a persistent offender and sentenced to imprisonment for life without eligibility for parole for thirty years. §§ 558.016.3 and .7 and § 558.019.2, RSMo Supp.1990. Following sentencing defendant filed a Rule 29.15 motion. The motion was denied after an evidentiary hearing.

Defendant appeals the judgment and sentence in his criminal case, No. 18215, and the order denying his Rule 29.15 motion, No. 18963. The appeals were consolidated pursuant to Rule 29.15(1). This court affirms the judgment of conviction and sentence in No. 18215 and the order denying defendant's Rule 29.15 motion in No. 18963.

The victim of the offense for which defendant was convicted was Joy Smith. Ms. Smith lived at Bois D'Arc, Missouri. She had been paraplegic since July 1990 when she was injured in an automobile accident. In May 1991 Ms. Smith went to the home of Rocky Dean Proctor and Darlene Proctor in Walnut Shade, Missouri, and asked them to come to her home and take care of her. Mr. and Mrs. Proctor agreed. They intended to stay with Ms. Smith until someone else could be found to assist her. They stayed "[p]robably a couple of weeks, maybe three." Ms. Smith's sister and the sister's husband and children moved in with Ms. Smith. Mr. and Mrs. Proctor returned to their home in Walnut Shade.

On May 29, 1991, the Proctors returned to Bois D'Arc to pick up their dog that was still at the Smith residence. They arrived early afternoon. Ms. Smith's sister Debbie, her elderly Aunt Jane and some children were at the Smith residence celebrating the aunt's birthday.

Rocky Proctor and Darlene Proctor intended to pick up their dog and return to Walnut Shade. However, once at the Smith residence, they visited "all afternoon." While there, the Proctors, Ms. Smith and her sister drank beer, consuming "[p]robably a case," 24 cans of beer, among them. While the Proctors were there, defendant and Danny Buehle joined the group.

Rocky Proctor had known defendant for about two years. Defendant stayed with the Proctors in Walnut Shade for two or three months before the Proctors went to Bois D'Arc to assist Joy Smith. Defendant remained in the Proctors' house after they went to Bois D'Arc. Later, defendant came to Bois D'Arc.

Mr. and Mrs. Proctor were planning to leave when defendant and Danny Buehle arrived at Joy Smith's residence. Buehle wanted to celebrate his upcoming birthday. He invited the Proctors to join the celebration. They accepted. Joy Smith, Rocky Proctor, Darlene Proctor, Danny Buehle and defendant left the Smith residence to travel to a bar in Springfield. Ms. Smith and Mr. and Mrs. Proctor travelled in Smith's van. Defendant and Mr. Buehle followed in Mr. Buehle's truck. The group went to the Pink Cadillac bar arriving in the "[e]arly evening." They stayed at the bar two or three hours shooting pool and drinking beer. Mr. Proctor explained their departure.

Q. [by the assistant prosecuting attorney] And at the end of that time period you left?

A. Yes, we did.

Q. Do you know why you had to leave?

A. Yeah, we were asked to leave, too much to drink, really.

Q. And you left?

A. Yes, sir.

Joy Smith was loaded into her van in her wheelchair. Rocky Proctor, Darlene Proctor and defendant got into the van and left the bar's parking lot. Mr. Proctor drove. Defendant and Ms. Smith were in the back of the van. Mr. Proctor testified:

Q. Do you recall anything unusual happening as you were driving off?

A. Yes, I do.

Q. What would that be, sir?

A. I don't really know what they were talking about, Don and Joy, but we hadn't gone very far when she made some sort of statement about, "The thing about running around with an SOB like you is the only thing a person has to do is call the law and you'd spend the rest of your life in prison," something to that effect.

. . . . .

Q. Do you remember anything else happening after that statement was made, or hearing anything?

A. Yes, I do. I heard a shuffle, a shuffling like movement around real quick, shuffling. I remember wondering what was going on and pulling over, I don't remember if I stopped or not, and looking back. And Don Zelinger told me to keep driving, that--he said, "____ her," he said, "I took care of her, you know, she's nothing but a rat anyway." ...

Q. Do you recall him telling you what he had done to her?

A. It seems like he said he choked her to death.

Darlene Proctor testified that after she and the others left the Pink Cadillac bar, Joy Smith was in the back of the van with defendant; that Ms. Smith was "cussing"; that she said "something like--something to the effect that she'd see Bear [defendant's nickname] back in prison for the rest of his life." Mrs. Proctor did not recall Smith's exact words but characterized them as "something to do with--that he'd be sent back to prison for the rest of his life." She heard a "clump" and looked in the back of the van. She saw Joy Smith laying on the floor of the van, not moving. She remembers defendant saying, "I took care of it, brother."

Rocky Proctor drove back to Bois D'Arc. He and the other passengers returned to Joy Smith's residence. Proctor left the van in the driveway at the residence. His car was there. He tried to get his wife into his car and get his dog, a six year-old bulldog that was "kind of hard to handle," and a dog chain that had been used to keep the dog at the Smith residence.

Defendant first pulled Joy Smith's van to the back of the house then returned it to the front. Rocky Proctor told defendant that he was leaving, that he was going to "get the hell out of there." Defendant told Proctor that if he was asked about Joy Smith to say she was fine the last time he saw her; that she left a bar with two people she met there. Rocky Proctor left the Smith residence in his car with Mrs. Proctor and his dog. They returned to Walnut Shade.

When the Proctors arrived at their residence in Walnut Shade, Mrs. Proctor went into the house. Mr. Proctor chained up his dog, then went inside. Rocky Proctor's two step-daughters, Stephanie and Stacey, and Stephanie's boyfriend, Jimmy Zimmerman, were there. Two grandchildren were also there. Rocky Proctor told Jimmy Zimmerman and Stephanie "more or less what had happened." He told them to stay in their room.

Later, defendant arrived at the Proctors' house in Joy Smith's van. Mr. Proctor did not recall when defendant arrived. Defendant came into the house. He told Rocky Proctor that he needed help. Defendant said he needed to do something with Joy Smith's body; that he needed time to think.

Some time after defendant arrived, Jimmy Zimmerman awakened. Rocky Proctor and Zimmerman agreed to help defendant. Proctor, Zimmerman and defendant went to the rear of the Proctors' house where defendant had unloaded the body in some weeds. The body was wrapped in a blanket. Defendant loaded the body into the van. He brought the van around the house onto the road and drove away. Proctor and Zimmerman followed in Proctor's vehicle. Both vehicles went into a wooded area near the Mark Twain National Forest. Defendant stopped, unloaded the body from the van and drug it into the forest. They then returned to the Proctors' house. Defendant left a short time later saying he was going back to Joy Smith's house so he would be there in time to go to work.

Later that day, May 30, defendant again returned to the Proctors' house in Walnut Shade driving Joy Smith's van. Defendant said he needed tools to bury the body and needed someone to show him where the body had been left--defendant was not familiar with the roads they had travelled. Defendant obtained some tools, then left the house with Jimmy Zimmerman. Rocky Proctor testified, "Don said that he had took care of it, don't worry about it, that he took care of it." Defendant told Proctor, "Don't think of it like you knew her, think of it like I killed a rat."

Later, Rocky Proctor and Darlene Proctor moved to Taneyville. They were there for about a month, then moved to Abilene, Texas.

Joy Smith's sister, Deborah Brady, saw defendant at the Smith house cleaning out the van. Defendant told Ms. Brady that he needed to talk to her about her sister; that Joy Smith had left with some people in a blue van to go to Oklahoma or Texas. He told Ms. Brady that Smith would be back in a couple of weeks.

Later the same day, Brady returned to her sister's house. She returned to put a scroll saw she had purchased earlier that day inside a garage near her sister's residence. She found one shoe that belonged to Joy Smith in the garage. She took the shoe to her sister's bedroom and put it on a shelf in her sister's closet. The shoe was for the left foot. There was no matching shoe for the right foot in the closet. Ms. Brady observed medication in the house that her sister used regularly. She also observed that none of her sister's clothing appeared to be missing.

A Taney County, Missouri, deputy sheriff, Richard Swan, went to Texas in November 1991, to pick up defendant on a criminal charge unrelated to this appeal and return him to Missouri. While in Texas, Deputy Swan talked to Rocky Proctor about the disappearance of Joy Smith. Deputy Swan suspected that Smith had been murdered and that it might have occurred in Taney County. Proctor told Deputy Swan what happened.

In November 1991, Jimmy Zimmerman spoke to Sergeant Bob Claypool of the Taney County...

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12 cases
  • State v. Wright
    • United States
    • Missouri Court of Appeals
    • 10 Octubre 2000
    ...plain error review by affirmatively indicating to the court that he or she has no objection to a proposed action. State v. Zelinger, 873 S.W.2d 656, 660 (Mo. App. 1994); State v. Stillman, 938 S.W.2d 287, 290 (Mo. App. 1997). A statement that counsel has no objection, as opposed to a failur......
  • State v. Williams, WD
    • United States
    • Missouri Court of Appeals
    • 30 Junio 1998
    ...presented to the trial court when the evidence was offered.' State v. McMillin, 581 S.W.2d 612, 616 (Mo.App.1979)." State v. Zelinger, 873 S.W.2d 656, 660 (Mo.App.1994). Where no objection to the admission of evidence is made at trial, the decision of the trial court is only reviewed for pl......
  • State v. Stillman, WD
    • United States
    • Missouri Court of Appeals
    • 21 Enero 1997
    ...'no objection' when evidence is introduced constitutes an affirmative waiver of appellate review of the issue." State v. Zelinger, 873 S.W.2d 656, 660 (Mo.App.1994) (citing State v. Daly, 798 S.W.2d 725, 729 (Mo.App.1990)). In addition, where counsel states that he has no objection to the a......
  • State v. Mickle
    • United States
    • Missouri Supreme Court
    • 21 Junio 2005
    ...well established rule of law requiring an objection to the admission of evidence to preserve the issue for appeal, see State v. Zelinger, 873 S.W.2d 656, 660 (Mo.App.1994); State v. Daly, 798 S.W.2d 725, 729 (Mo.App.1990), it appears what the Stillman court, based on the specific circumstan......
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