From the Circuit Court of Cole County; Criminal Appeal; Judge Byron L. Kinder.
Before Rendlen, C.j., Morgan, Sr.J., Parrish, Sp.J., Seay, Sp.J.
The opinion of the court was delivered by: Seay
Defendant-appellant was convicted of the capital murder of Peter J. Halm, Jr. and sentenced to life imprisonment without eligibility for parole for a minimum of fifty years. His appeal raises the following points of alleged trial court error: 1) admission of an unrelated crime; 2) that tapes of certain conversations used against defendant were unlawfully seized; 3) that use of transcripts of the tapes violated the best evidence rule, and their use was improperly repetitious; 4) refusal to instruct the jury on weight to be given testimony of immunized witnesses. We affirm the judgment.
Defendant was charged with the murder for insurance money of Peter J. Halm, Jr. The state's evidence in support of its case against defendant was substantial. Prior to her marriage to the victim, Carmen Halm worked as a dental assistant for defendant. He suggested to her that she should marry some unfortunate individual, insure him and that defendant would then commit murder for the insurance proceeds. In this connection, defendant related to Carmen that in the past he had killed a man known as Eric Frey for insurance money. Though Carmen was permitted to relate the revelation about Eric Frey, there was no subsequent evidence concerning that incident.
Carmen did ultimately marry Peter Halm, and plans were made for his demise. According to Carmen, defendant took her to a cave near Pacific, Missouri and gave instructions on how the killing was to take place. Carmen did bring her luckless mate to the cave, and as she stood nearby, defendant from his place of hiding shot Halm in the back with a rifle then covered the murder weapon with some leaves.
Carmen ultimately received an insurance check in the sum of $15,816.50 for the death of her husband, which was ultimately deposited in a bank by her brother. The brother then took $10,000 of the proceeds in one hundred dollar bills which he in turn gave to defendant.
Further incriminating testimony case from defendant's former wife who testified that defendant subsequently gave her $10,000 in one hundred dollar bills which she converted into a certificate of deposit.
Some time later, defendant's former wife revealed matters to federal law enforcement officials, and she was rigged with a body transmitter to monitor and record conversations with defendant. Conversations between her and defendant at her home and at a public restaurant were recorded. In these recorded conversations, defendant acknowledged the murder scheme and the source of the $10,000 which he had given to his ex-wife. At trial, the damaging tapes were played to the jury during which time a copy of the transcript of the tape was made available for the jury's reference.
The victim's wife, Carmen Halm, and her brother were granted immunity from prosecution in exchange for their testimony.
Defendant's first point on appeal relates to the reference to the Eric Frey matter by Carmen Halm. He correctly asserts that evidence of other crimes is not admissible to prove the crime charged unless, of course, it tends to establish motive, intent, identity of the person charged, common scheme or plan or absence of mistake or accident. State v. Buckles, 636 S.W.2d 914, 918 (Mo. banc 1982). Here, the admission by defendant of the Eric Frey affair was relevant as evidence of a common scheme or plan which at least had been said to have been applied in the past. State v. Shaw, 636 S.W.2d 667, 672 (Mo. banc 1982), cert. denied, 103 S.Ct. 239 (1982). The trial court is possessed with substantial discretion in determining the extent to which such evidence may prejudice the defendant. State v. Barnett, 611 S.W.2d 339, 341 (Mo. App. 1980). Under the circumstances of this case, there was no abuse of discretion in allowing the limited testimony of the Frey incident and defendant's admission regarding it.
Defendant next complains that the use of his taped statements recorded during conversations with his former wife were unlawful as having been obtained illegally in violation of constitutional rights, citing the fourth amendment to the United States Constitution and Mo. Cost. art. I, § 15. He also argues that he had the reasonable expectation that the conversations would remain private. He does not suggest that the conversation with a former spouse wears the cloak of privilege.
There is no merit to any of defendant's contentions in this regard. The use of tape recordings as evidence has been approved in prior Missouri cases. State v. Spica, 389 S.W.2d 35 (Mo. 1965), cert. denied, 383 U.S. 972 (1966); State v. Montgomery, 590 S.W.2d 105, 108 (Mo. App. 1979); State v. Brown, 607 S.W.2d 881 (Mo. App. 1980).
A brief review of fourth amendment decisions bearing on the use of evidence obtained by warrantless electronic transmitting and/or recording begins with On Lee v. United States, 343 U.S. 747 (1952), in which a federal undercover agent recorded the defendant's conversation in the customer room of defendant's laundry. A second agent was monitoring the conversation. Over objection, the second agent testified as to the conversation, and the recording agent was not called as a witness. The court held that the agent's conduct did not amount to search and seizure prohibited by the fourth amendment and permitted the monitoring agent to testify as to the conversation.
In Katz v. United States, 389 U.S. 347 (1967), F.B.I. agents attached an electronic listening and recording device on the outside of a telephone booth which the defendant was using. The Supreme Court excluded the evidence thereby obtained because the defendant had a reasonable expectation of privacy in the phone booth. Katc did away with the doctrine that electronic eavesdropping was permissible under the fourth amendment so long as physical invasion of a constitutionally protected area did not occur. It ...