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March 31, 1987


Appeal from the Circuit Court of the County of St. Louis, Hon. Alphonso Voorhees.

Application to Supreme Court for Transfer Denied June 16, 1987.

Harold L. Satz, Judge, Crandall, Jr., P.j., Pudlowski, J., concur

The opinion of the court was delivered by: Satz

Harold L. Satz, Judge

Defendant was convicted by a jury of first degree murder, § 565.003 RSMo. 1978 (felony-murder) *fn1 and was sentenced to life imprinsonment. Defendant appeals. We affirm.

Defendant does not question the sufficiency of the evidence. Defendant and the victim, Mary Towey (Mary), were acquaintances. On April 12, 1983, Mary drove to the house of her friend, Cathy Molnar (Cathy), to pick up Cathy. They then picked up defendant and some other acquaintances: Warren Hutter (Warren), Marty Pezzani (Marty), Ron Adcox (Ron). They drove to Wilmore Park, where some of them smoked marijuana. The group left the park, took Warren home and took Cathy to St. Louis University. Mary then suggested they go to her house. Ron suggested they first pick up some marijuana at "Pot in the Box" across the river. They bought the marijuana and then went to Mary's house. Mary was planning a "Friday the 13th" party for the next day, and defendant hooked up Mary's stereo for the party. About 7:30 P.M., defendant, Mary and Ron drove Marty to his house. The three of them then purchased beer and liquor for the party, went by defendant's home so that he could pick up his cassette deck and tapes and, about 9:30 or 10:00 P.M., drove back to Mary's house. Defendant and Ron stayed at Mary's house all night, listening to music, consuming liquor, smoking marijuana and practicing martial arts. Mary fell asleep around 2:00 A.M.

Mary awoke the next morning about 5:30 or 6:00 A.M., showered, dressed, had coffee or tea and joined defendant and Ron. Defendant began to show Mary some martial arts moves. Then defendant and Ron began chasing Mary. Mary ran down the stairs to the basement. Defendant and Ron followed her, caught her, wrestled her to the floor and tied her hands and feet. According to defendant, they were "messing with her mind". Defendant and Ron went back upstairs. Defendant sat at the top of the stairs and drank a beer. Mary was yelling to be untied. Mary asked for a cigarette. Defendant went downstairs, lit a cigarette, "helped her smoke it" and gave her a few drinks of beer. Mary said she was cold, and, according to defendant, he and Ron unrolled a rug and put Mary on it. Mary continued to yell she wanted to be untied. Defendant found some tape and tried to tape Mary's mouth shut. He was unsuccessful. He then went back upstairs. In the meantime, Ron had located an ace bandage in the bathroom. Defendant tied a knot in the ace bandage, and, "to mess with her mind some more" or "just to possibly quiet her up some more", he tied the ace bandage around Mary's neck. He said he checked the ace bandage and found "it was loose". He went back upstairs, drank some more beer, smoked some more marijuana, listened to music and listened to Mary continuing to yell.

Subsequently, he went back downstairs and found Mary. Her feet were discolored, "sort of yellowish", her face was "purple like, black and blue", her eyes were "bulging out", and her tongue was hanging out of her mouth.

Defendant said he and Ron panicked. Leaving in the Towey's car, he and Ron took many items from the Towey house to pawn, packed Mary in the trunk and buried her in a wooded area. They then drove to Georgia. They met some acquaintances there and stayed with them in their motel. Defendant phoned his mother the following Tuesday, April 19, told her he was in Georgia and told her the last time he saw Mary she was at a party with "some bikers". On Sunday, April 22, defendant and Ron phoned home and were told FBI agents were looking for them. Ron and defendant called the FBI office in St. Louis and spoke with Agent Hoffman. FBI agents from the Atlanta, Georgia office met with defendant at the motel. Defendant was given his Miranda rights on two separate occasions. After giving two different versions of Mary's absence and death, defendant confessed to tying the ace bandage around Mary's neck and gave the location of her body. The examination of Mary's body revealed a lesion on her head which showed "a pretty severe blow to head". The cause of her death was "echanical asphyxiation with cerebral anoxia, secondary to ligature strangulation". In lay terms, she died because the blood was cut off from her brain by something tied around her neck and, thus, her brain did not get enough oxygen.

At trial, defendant attempted to qualify two witnesses, Dr. Thomas Radecki and Pat Pulling, as experts on the game of Dungeons and Dragons. Defendant made offers of proof on the testimony of both witnesses. If Dr. Radecki had been allowed to testify, his opinion would have been that the game of Dungeons and Dragons "desensitizes" its players and this "desensitization" limits the players' ability to appreciate the danger and harm of their violent acts. Pat Pulling would describe the violence imagined by the players in playing Dungeons and Dragons. The trial court sustained the prosecutor's objections to both witnesses' testimony on the grounds their testimony would be irrelevant.

On appeal, defendant contends the testimony of Dr. Radecki and Pat Pulling is relevant to show defendant's "state of mind" at the time of the homicide. Defendant does not contend he suffered or suffers from a mental disease or defect excluding complete responsibility; rather, he argues, he was "desensitized" by playing Dungeons and Dragons and his "experts'" opinions on desensitization would aid the jury in determining his state of mind at the time of the homicide. This would enable the jury, defendant argues, to determine whether defendant had the culpable mental state for capital murder or a lesser and included offense.

Defendant's argument is misdirected and, thus, misses the mark. Defendant focuses on the actual state of mind of an accused and points out the characteristics of the states of mind which distinguish capital murder from lesser degrees of murder. *fn2 Defendant, however, ignores the effect of the jury's verdict here on his argument. Defendant was charged with capital murder, § 565.001, RSMo.1978, *fn3 and murder, first degree (felony - murder) § 565.003, RSMo. 1978. The prial court properly instructed the jury on capital murder, felony murder and the lesser offenses of murder, second degree and manslaughter. The trial court also directed the jury to consider a lesser offense only after it had considered the next preceding greater offense. The jury convicted defendant of murder, first degree; i.e. felony-murder.

Admittedly, defendant's charge of capital murder did require proof of premeditation and deliberation for conviction. § 565.001, RSMo. 1978. But defendant was not convicted of capital murder. He was convicted of the lesser offense; murder, first degree, felony - murder. Thus, defendant cannot possibly complain that the jury was kept from considering his experts' testimony about the mental state required for capital murder. Quite simply, the jury failed to find defendant killed Mary with "premeditation" and "deliberation".

Moreover, the jury did find defendant guilty of felony murder. More specifically, it found defendant killed Mary while committing or attempting to commit a robbery. The culpable mental state for murder, first degree when it is defined as felony - murder is supplied by the felony. See, e.g. State v. Lindsey, 507 S.W.2d 1, 4 (Mo. banc 1974). In this case, the felony was robbery, under 569.020 RSMo. 1978. The culpable mental state for robbery is not specifically spelled out in the statutory definition of robbery. Thus, arguably, under our statutory scheme, the culpable mental state for robbery is established if the accused acted "purposely", "knowingly" or "recklessly". See § 562.021.2, RSMo. 1978; State v. Clark, 607 S.W.2d 817, 820-821 (Mo. App. 1980; see also State v. Logan 645 S.W.2d 60, 66 (Mo. App. 1982). But see, § 562.026 RSMo. 1978 and State v. Helm, 624 S.W.2d 513, 517 (Mo. App. 1981). (Intoxication is no defense to robbery because ...

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