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August 23, 1983


From the Circuit Court of Platte County; Criminal Appeal; Judge Owens Lee Hull.

Motion for Rehearing Overruled, Transfer Denied November 15, 1983. Application Denied December 20, 1983.

Before Somerville, C.j., Presiding, Turnage, Manford, JJ.

The opinion of the court was delivered by: Manford

This is a direct appeal from a jury conviction for the offense of capital murder, in violation of § 565.001, RSMo 1978. The jury assessed punishment at life imprisonment without eligibility for parole until a minimum of 50 years is served. Judgment was entered in accord with the jury's verdict and the judgment is affirmed.

Jurisdiction is vested in this court by an amendment to the Missouri Constitution, Article V, § 3, effective December 1982. State v. Martin, 644 S.W.2d 359 (Mo. banc 1983).

Prior to setting forth the pertinent facts and considering the alleged errors, it is noted that the file on appeal contains no less than three appellant briefs. This case and the court file attendant thereto was ordered transferred to this court by the Missouri Supreme Court for Disposition. Review of the file revealed an original appellant brief filed pro se dated September 13, 1982 with the Missouri Supreme Court. Under date of January 12, 1983, appellant filed with our court a document which she captioned, "Amendment To Pro Se, Brief and Argument." On January 24, 1983, counsel for appellant filed with our court an appellant's brief. On the same date (January 24, 1983) respondent filed with this court its brief.

At the time of oral argument, appellant (by counsel) moved this court by dual motion to expand the record on appeal and to correct the record on appeal. Following argument of these motions, both were denied. Appellant (by counsel) moved this court to include appellant's pro se brief and her "amendment" to her pro se brief. This motion was granted. The record and the court file failed to reveal whether respondent ever was apprised of the pro se brief and the "amendment", thus respondent was granted 15 days to file a responsive brief to the pro se brief and the "amendment" by order of this court dated June 14, 1983. Respondent filed its additional brief.

Review of all the briefs on file by appellant reveals certain duplication. For purposes of Disposition of this appeal, the points presented by the three appellant briefs are addressed collectively without specific reference to any particular brief.

By elimination of certain duplication, it is determined that appellant presents seven points of error. In summary, appellant charges that the trial court erred: (1) in refusing to sustain appellant's motion to dismiss at the close of the state's case and sua sponte at the close of all the evidence, because the evidence was insufficient; (2) in failing to instruct the jury on murder, first degree; (3) in the submission of an instruction which failed to ascribe appellant's mental intent; and (4) by not dismissing the case at the close of the state's case, because the state failed to prove the corpus delicti. As her point (5), appellant charges that the trial court committed plain error when it failed to set aside the jury verdict because there was prejudicial deviation between the information and proof at trial. Appellant further charges (6) that the trial court committed plain error in its failure to properly follow MAI-CR2d 1.08(b). As her final point (7), appellant charges that the trial court committed plain error by not sustaining her motion for new trial because the state had suppressed certain evidence.

Appellant's challenge to the sufficiency of the evidence necessitates a detailed statement of the pertinent facts. The state produced thirty-one witnesses, but it is from the testimony of state's witness John Morgan that the basic facts surrounding the commission of this offense were related to the jury. It is from Morgan's testimony that the following facts are drawn, but where applicable, pertinent facts provided by other witnesses are interrelated and their source identified.

The record reveals that John Morgan and one Doyle Williams had been involved in numerous criminal acts in various areas of Missouri. Their criminal conduct included at least one death in addition to the victim herein, Kerry Brummett. Brummett knew of the criminal acts of Morgan and Williams and Brummett was to be a witness against Morgan. Appellant was the girlfriend of Williams. Morgan was granted immunity from all criminal charges in exchange for his testimony against appellant.

Morgan testified that he was told by Williams that appellant had agreed to make a date with Brummett the evening of October 9, 1980. Brummett was employed at a local pizza establishment. Another employee at the restaurant testified seeing appellant in the restaurant the evening of October 9, 1980, just prior to the 12:00 midnight closing time. Other witnesses testified that they saw Brummett and appellant during the early morning hours of October 10, 1980 in a restaurant in Jefferson City, Missouri.

Morgan testified that he, Williams, and appellant planned to kill Brummett. The plan provided that appellant would make a date with Brummett, meet him, and transport him to a predetermined location. Morgan and Williams would then kill Brummett.

Morgan testified that he met appellant and Williams at a local steakhouse in Jefferson City a little after 9:00 p.m. on October 9, 1980. The trio drove to appellant's trailer home in Brazito, Missouri where Williams and appellant changed clothes. During the trip, Williams asked appellant how the date with Brummett had gone, and she advised Williams and Morgan that she was to meet Brummett at 12:00 or 12:30. As the conversation continued, Williams told appellant that after she picked up Brummett, she was to bring him to her trailer and that is where he was to be killed. Appellant told Williams that she did not want Brummett at the trailer because she lived with another girl and she did not want the other girl to see anything like that happen. The Discussion then turned to another possible location, and it was decided that appellant would deliver Brummett to a rural road in Callaway County.

After Williams and appellant changed clothes at the trailer, Williams asked appellant if there were any "concrete blocks or anything to weigh him down with." Appellant told Williams and Morgan that they would look around the trailer as she did not know. Some nylon rope was found. The three left the trailer. As the trio returned to Jefferson City, further Discussion was held, during which Williams and Morgan told appellant that one of them would be on each side of the road. Morgan and Williams were to go to the road and wait, and appellant was to drive Brummett to the location.

As noted, other witnesses observed appellant with Brummett on the early morning of October 10, 1980 [about 1:00 a.m.] in a Jefferson City restaurant.

Appellant drove Brummett to the prearranged location, stopped the vehicle, and got out. As she got out of the vehicle, Morgan pulled Brummett from the vehicle. Appellant got back into the vehicle and started it, and then walked a short distance to Morgan's automobile, got in it, and drove off.

At this point, Morgan had Brummett on the ground. Williams came around the vehicle which appellant had driven to the scene and tried to place handcuffs on Brummett. Brummett was drawn up on his side and to get to Brummett's hands, Williams beat Brummett on the head with a pistol, kicked, and stomped on him. Morgan also beat on Brummett. Brummett was handcuffed. (Through another witness, the evidence established that Williams had borrowed the handcuffs.) Brummett's employee nametag was later retrieved from the ground at the location where appellant had driven him by law enforcement officers. Morgan and Williams placed Brummett in the trunk of the vehicle. The road upon which these events took place led to the Missouri river and the vehicle was driven to the river. When they arrived at the river, they observed some people camping near the river. They turned the vehicle around and took another road to the river. Morgan and Williams planned to dump Brummett in the river. Williams took Brummett from the trunk while Morgan retrieved the rope and an auto jack with which to weigh down Brummett's body. Williams and Brummett were standing on the river levee and Williams hit Brummett with his fist. This blow caused Brummett to go over "the first bank" of the levee. Brummett started to run and ran into the river. Williams was running right behind Brummett. Before Brummett went under the water, Williams hollered at Morgan to shoot Brummett. Morgan fired a shot over Brummett's head. Morgan and Williams departed for Tebbetts, Missouri.

The clothing worn by Morgan and Williams had Brummett's blood on them, and there was blood in the vehicle used to transport Brummett. Morgan and Williams changed clothes and placed them in a "dog food sack". They then drove the vehicle to Mokane, Missouri and washed the inside and trunk of the vehicle at a self-service car wash. They then returned to Tebbetts, Missouri to the trailer residence of one Roger Hazelett. The time was approximately 4:00 a.m. on October 10, 1980. Morgan slept until about 4:00 p.m. that afternoon. When he awoke, he saw appellant at the trailer. Morgan and Williams then burned their clothing which they had previously placed in the "dog food sack."

Through appellant's roommate's evidence, it was determined that the vehicle used to transport Brummett was owned by the roommate. Earlier in the day of October 9, 1980, appellant had arranged and traded her vehicle for the vehicle of her roommate.

Brummett's body was retrieved from the Missouri river. An autopsy was performed, which revealed laceration and abrasion type wounds to the head and which affixed the cause of death as drowning.

In addition to her own testimony, appellant presented six witnesses in her defense. These witnesses in summary testified as follows.

The first witness, a local deputy sheriff, was called to challenge the accuracy of his report regarding having seen Brummett at 3:00 a.m. on October 10, 1980. The second witness was asked if he knew being with the first witness in the early morning of October 10, 1980, and this witness answered, "No, I don't." The third defense witness was asked if she had seen either Brummett or appellant in the local restaurant in the early morning hours of October 10, 1980. She could not recall. The next witness was the former wife of Morgan. She was called to discredit Morgan's testimony regarding whether Morgan had struck her during a domestic quarrel, which Morgan had denied. The defense then called a physician/psychiatrist to give his expert opinion on the physical effects of the drug Preludin. Morgan had testified that he had taken Preludin regularly, both orally and "by shooting it." *fn1 On some days, he said, he would "shoot" as many as 40-50 pills. He denied that the use of this drug affected his memory.

The expert called for the defense stated that the drug is a stimulant which makes people nervous and excited. He stated that it causes changes in perception. He was never asked about or volunteered any confirmation as to memory loss. He did conclude that in some cases, prolonged use could lead to insanity.

The defense then called John Morgan as a witness. Morgan was examined as to his use of Preludin, and asked to explain how the pills were prepared for "shooting up." He admitted to taking 9 pills about 10:00 p.m. the night of October 9, 1980, but stated these 9 pills did not make him "real high."

The defense expert was recalled, and after being given a hypothetical question about Preludin, stated that prolonged use would produce a very good chance of organic brain syndrome, and in addition to other effects, could possibly cause memory loss, "that is, holes in memory."

Appellant then testified in her own behalf. In summary, she admitted to trading vehicles with her roommate, but explained that it was so she could ride around with Williams, and the two wound not be identified (from her own vehicle) by another girlfriend of Williams. She stated that she and Williams were at her trailer changing clothes in preparation for a trip to Tebbetts, Missouri when Morgan arrived at her trailer. She claimed that she had no conversation with Morgan. She claimed she saw Morgan later at a bar, and that she was there with Williams, and Morgan was with some lady she did not know. She stated Morgan told them he was going to St. Louis to sell some stolen items. She stated she and Williams left, stopped at a cafe, got cokes, and left for Tebbetts, Missouri. Appellant testified she did not know Brummett. She further testified she was never in the pizza restaurant, nor the local restaurant later with Brummett. She denied any involvement with the murder.

The State produced a rebuttal witness who testified that appellant and Williams were at his house around 8:30 or 9:00 p.m. the evening of October 9, 1980. This witness originally intended to sell a tract of land to appellant, but decided against it. Appellant told this witness she was late for an appointment in Jefferson City at 9:00 p.m.

The evidence closed. The jury returned its verdict of guilty. The punishment phase of the bifurcated capital offense proceedings was conducted, and at the close thereof, the jury imposed upon appellant a life sentence without eligibility of parole until a minimum of 50 years had been served. This appeal followed the timely filing of post-trial motions.

Under her point (1), appellant charges that the trial court erred in refusing to sustain her motion for acquittal at the close of the state's case, and in failing to grant her an acquittal sua sponte at the close of all the evidence.

Appellant's argument is most strongly predicated upon her suggestion and Conclusion that the testimony of John Morgan was so incredible and unworthy of belief that his testimony should not have been presented to the jury. In a detailed argument, appellant references inconsistencies in Morgan's testimony and emphasizes his habitual use of drugs. Appellant then attacks the credibility of other state witnesses, pointing out alleged inconsistencies in their testimony.

This court has reviewed the testimony of all the witnesses in this matter. In turn, this court concludes that the testimony of the state's witnesses was sufficient to have submitted the issues to the jury. Appellant vigorously attacks the credibility of the state's witnesses, but it has long been the rule that appellate courts do not Judge the credibility of witnesses. This rule was clearly set forth in State v. Wright, 476 S.W.2d 581, 584 (Mo. 1972), wherein our state Supreme Court held: "he credibility of the witness and the weight and value to be given his testimony are matters within the province of the jury and are not for review on appeal." See also City of Kansas City v. Oxley, 579 S.W.2d 113 (Mo. banc 1979); State v. Garner, 481 S.W.2d 239 (Mo. 1972); State v. Frank, 639 S.W.2d 209 (Mo. App. 1982); and State v. Denmon, 570 S.W.2d 326 (Mo. App. 1978).

Aside from the fact that appellate courts view the evidence in the light "most favorable to the state," State v. Greathouse, 627 S.W.2d 592, 596 (Mo. 1982) and State v. Letterman, 603 S.W.2d 951, 952 (Mo. App. 1980), it can be stated unequivocally that herein the evidence, as submitted by the state, was sufficient to withstand appellant's motion for acquittal at the close of the state's case. In addition, the record reveals nothing at the close of the evidence which rendered the evidence insufficient to warrant or require the trial court to acquit appellant sua sponte.

The trial court did not err in its refusal to grant appellant's motion for acquittal or in not having acquitted appellant sua sponte. There is no merit to appellant's point (1) and it is ruled against her.

Under her point (2), appellant charges that the trial court erred in failing to instruct the jury on murder first degree.

Appellant argues that the jury should have been instructed on murder first degree in addition to capital murder, murder second degree, and manslaughter. Her argument is premised upon her claim that the evidence presented to the jury could have found that Brummett was kidnapped for the purpose of interfering with a government function (i.e., witness in a criminal prosecution), "inflicting physical injury or terrorizing the victim or another and or facilitating the commission of another felony, to wit: murder."

Appellant acknowledges that the trial court instructed the jury that it could find her not guilty of any offense, or the jury could find her guilty of capital murder, murder second degree, or manslaughter, MAI-CR2d 2.14. In addition, the trial court submitted Instruction No. 8, MAI-CR2d 15.02, as modified by Missouri Supreme Court order on April 14, 1981, and MAI-CR2d 2.12, capital murder; Instruction No. 9, MAI-CR2d 15.14 as modified, murder second degree; and Instruction No. 10, MAI-CR2d 15.18 as modified, manslaughter.

Appellant contends, however, the trial court also should have instructed the jury on murder first degree. Her contention is based upon § 565.003, RSMo 1978, which provides in part, "if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping" (emphasis added), then the accused is guilty of murder first degree. Appellant suggests that the jury could have inferred from the evidence that Brummett's death occurred during the commission of the crime of kidnapping ( § 565.110, RSMo 1978). Appellant suggests that from the evidence, the jury could have inferred that Brummett was kidnapped to prevent him from testifying against Morgan and Williams and/or he had been kidnapped for the purpose of inflicting physical injury or terrorizing him or another [ § 565.110.1(5)]. Appellant then goes into great detail as to how Brummett was seized by Morgan and Williams and was confined and detained against his will or without his consent; she posits from this evidence that she was entitled to an instruction on murder first degree as prescribed by § 565.003 and MAI-CR2d 16.08/15.08. She cites State v. Gotthardt, 540 S.W.2d 62, 66 (Mo. banc 1976), which rules that the trial court is obligated to instruct the jury upon the law of the case, whether requested or not. Appellant further supports this contention by citing State v. Fuhr, 626 S.W.2d 379 (Mo. 1982), which reversed a capital murder conviction for failure to instruct on murder first degree wherein the accused had murdered the victim and then robbed her. She also cites State v. Gardner, 618 S.W.2d 40 (Mo. 1981), which reversed a capital murder conviction for failure to instruct on murder first degree where the murder occurred during the course of rape.

Appellant acknowledges the rulings in State v. Blair, 638 S.W.2d 739 (Mo. banc 1982) and State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), which hold that murder first degree is not a lesser included offense of capital murder. As regards these two decision, appellant argues that they are incorrect and should be reconsidered, and alternatively, that both decisions ignore other authority which mandates the giving of any instruction supported by the evidence based in part by MAI-CR2d 15.00.3(d).

In reference to MAI-CR2d 15.00.3(d), appellant cites State v. Daugherty, 631 S.W.2d 637 (Mo. 1982), a capital murder case involving the death of a priest wherein the jury was instructed on murder first degree. The court ruled that murder first degree was no necessarily a lesser included offense, but evidence of robbery was sufficient to submit the murder first degree instruction. State v. Emerson, 623 S.W.2d 252 (Mo. 1981).

Appellant contends that the Missouri Supreme Court apparently did not consider the MAI-CR2d 15.00 series of Fuhr and Daughterty, (supra) , in rendering its decision in Baker and Blair. Appellant further suggests that Daugherty appears to have been overruled without our state Supreme Court having ever really considered it.

More recently, our state supreme court has addressed the precise issue of whether murder first degree is a lesser included offense of capital murder. In State v. Williams, 652 S.W.2d 102 (Mo. banc 1983), and State v. Goddard, 649 S.W.2d 882, 887 (Mo. banc 1983), our state supreme court reaffirmed the rule in Baker, supra. In addition, in State v. Holland, 653 S.W.2d 670 (Mo. banc 1983)[No. 62320, June 30, 1983], our state supreme court cites to State v. Betts, 646 S.W.2d 94 (Mo. banc 1983), which reaffirmed the rule in Baker and went on to hold: "Thus, Baker, today, remains viable."

Appellant urges this court to re-examine § 556.046.1(1), RSMo 1978, which defines a lesser and included offense. She suggests that in Baker, our state supreme court cited State v. Smith, 592 S.W.2d 165 (Mo. banc 1979), which ruled that trespassing was not a lesser included offense of burglary second degree, citing as authority State v. Friedman, 398 S.W.2d 37, 40 (Mo. App. 1965).

Appellant continues her argument by urging that homicide offenses should be defined by degree, like other offenses, as opposed to being defined by the element of intent involved. While this court finds such proposal very interesting, it is not in a position to render any opinion on such an issue.

It is beyond the authority of this court to again re-examine § 556.046.1(1), and it is further submitted that the recent decisions in Goddard and Holland have done just that. It is the rulings in those decisions, plus Baker and Blair to which this court is bound. Thus, it must be concluded that appellant's point (2) is meritless because of the rule in Baker, Blair, Williams, Goddard, and Holland, supra.

There are yet other reasons in the instant case why appellant's point (2) is meritless and the application of the rules announced in Fuhr and Gardner are not applicable.

In the first instance, the record reveals that during the instruction conference, the trial court advised appellant of the instructions it intended to submit. These instructions did not include ...

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