APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY. The Honorable James E. Welsh (as to WD 48052), Judge. The Honorable Larry D. Harman (as to WD 50177), Judge.
Appellant's Motion for Rehearing and/or Transfer to Supreme Court Denied January 30, 1996. As Corrected June 11, 1996.
Before Laura Denvir Stith, P.j.; Lowenstein, J., and Hanna, J. All Concur.
The opinion of the court was delivered by: Stith
Debra Lynn Dees was found guilty of murder in the first degree, § 565.020.1, RSMo Cum. Supp. 1992, and armed criminal action, § 571.015, RSMo Cum. Supp. 1992, as a result of the shooting death of her husband, Ronald Dees. She was sentenced to a term of life imprisonment without probation or parole for murder in the first degree and a concurrent 15-year term for armed criminal action. She appeals her conviction on the following grounds: (1) that plain error occurred when the prosecutor commented on her failure to testify by stating that "she is in court, because she hasn't come forward and given truthful testimony"; (2) that jury Instruction No. 9 improperly permitted the jury to find Ms. Dees guilty if she aided either Mr. Waring or Mr. Lair in committing the offense; (3) that there was insufficient evidence to support her conviction of aiding and abetting Mr. Lair; (4) that the trial court erred in admitting allegedly inflammatory and irrelevant photographs of Mr. Dees' dead body; and (5) that she was denied effective assistance of counsel because her trial counsel failed: (a) to object to the prosecutor's comment on her failure to testify; (b) to present her testimony at trial; (c) to challenge the voluntariness of her custodial statement; and (d) to present other available evidence on Ms. Dees' behalf.
We find that the prosecutor did improperly comment directly on her failure to testify but that, under the Missouri Supreme Court's decision in State v. Kempker, 824 S.W.2d 909 (Mo. banc 1992), this does not entitle Ms. Dees to a new trial because she failed to object to the comment or to request an instruction to the jury, and no manifest inJustice occurred as a result of the prosecutor's single error during closing argument. We find that the other claims of error also either were not preserved or are not well taken and, accordingly, we affirm the conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In determining whether a submissible case was made, we review the evidence and reasonable inferences therefrom in the light most favorable to the State and disregard all contrary evidence and inferences. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995). Ms. Dees is a 32-year-old woman who was married to the victim, Ronald Dees. They lived in Excelsior Springs, Missouri. She was also involved in an extramarital affair with her co-defendant, Richard Shane Waring, an 18-year-old high school student. Mr. Waring and Ms. Dees had met the previous summer when both were working at a local grocery store. After several months had passed, Ms. Dees told Mr. Waring that Mr. Dees had refused to agree to a divorce, and had stated that the only way she was going to get rid of him was to have him killed.
Ms. Dees and Mr. Waring began making plans to kill Mr. Dees. Mr. Waring stated that Ms. Dees suggested using a third party to kill Mr. Dees so that the two of them would not be implicated in his death. With this in mind, Mr. Waring approached a number of people about killing Mr. Dees, including Matt Cinadr, Brian Keel and Jonathan Lair.
Mr. Cinadr testified that his first Discussion with Mr. Waring and Ms. Dees about killing Mr. Dees was at a party at the Dees' residence. Late in the evening, Mr. Waring called Mr. Cinadr into the house. Mr. Waring, Ms. Dees and Mr. Cinadr then went into the Dees' bedroom and Mr. Waring showed Mr. Cinadr where Mr. Dees kept his firearms. Mr. Waring told Mr. Cinadr that if Mr. Cinadr wanted to kill Mr. Dees, he could do it that night at the party. Ms. Dees, standing beside Mr. Waring during this conversation, said nothing.
When questioned the next morning by Mr. Waring, Mr. Cinadr agreed to kill Mr. Dees for $6,000 and Mr. Dees' Camaro. Mr. Waring told Mr. Cinadr that he would be paid from the proceeds of Mr. Dees' life insurance policy. *fn1 Ms. Dees, also present during this conversation, again made no comment.
Mr. Cinadr moved into the Dees' home in January and continued to reside with the Dees until Mr. Dees' death. During this period, Mr. Waring and Ms. Dees frequently talked with Mr. Cinadr about killing Mr. Dees. Although Mr. Waring usually did the talking, Ms. Dees was present during at least three-fourths of these conversations.
Mr. Waring and Mr. Cinadr made several plans in Ms. Dees' presence to kill Mr. Dees, but Mr. Cinadr was never able to go through with the actual act of killing Mr. Dees. At one point, in furtherance of a plan to make it appear as though Mr. Dees were killed in a drive-by shooting, Mr. Waring shot Mr. Cinadr in the right upper thigh with one of Mr. Dees' firearms. Ms. Dees, when previously told of this plan, had made no objection other than to the shooting of Mr. Cinadr. After Mr. Waring shot Mr. Cinadr, Ms. Dees and Mr. Waring took Mr. Cinadr to the hospital. Mr. Cinadr reported that he had been shot in a drive-by shooting. Mr. Cinadr planned to shoot Mr. Dees a couple of days later in what he hoped would also appear to be a drive-by shooting, thus drawing suspicion away from the occupants of the Dees' household. Mr. Cinadr never carried through the plan to shoot Mr. Dees, however.
When Mr. Cinadr proved unable to kill Mr. Dees, Mr. Waring began investigating other possible assailants. While driving through town approximately three to five weeks before Mr. Dees was shot, Mr. Waring and Ms. Dees stopped to talk with Brian Keel, Shannon McFee and Corey Jones. Messrs. Keel, McFee and Jones approached the car and started talking about the plan to kill Mr. Dees. Mr. Waring asked them to wait while he got out of the car. He then stepped up on the sidewalk and started talking to them about killing Mr. Dees. Ms. Dees then got out of the car and told them to hold it down because her daughter, Trisha, was in the car and she didn't want Trisha to know about their plans. Ms. Dees went on to tell Mr. Keel that she wanted the killing done quickly and that she wanted the diamond earring Mr. Dees was wearing.
Mr. Waring also discussed killing Mr. Dees with Mr. Lair. Mr. Lair initially heard from Terry Shroyer that Mr. Waring was looking for someone to kill Mr. Dees for $6,000. When Mr. Lair commented that he would "think about that," Mr. Shroyer set up a meeting at his house between Mr. Waring and Mr. Lair about two weeks prior to the killing. Mr. Waring told Mr. Lair that he and Ms. Dees wanted to be together and that they needed Mr. Dees out of the way. Mr. Waring and Mr. Lair discussed ways in which the killing could be carried out. Mr. Waring testified that, after meeting with Mr. Lair, Mr. Waring told Ms. Dees that he had approached Mr. Lair about killing Mr. Dees and she agreed to the killing of Mr. Dees by Mr. Lair.
About a week prior to the murder, Mr. Waring picked Mr. Lair up in downtown Excelsior Springs while Mr. Waring was driving Mr. Dees' Camaro. They drove around and then parked in a lot. Mr. Waring gave Mr. Lair a gun and told him that "we need this done soon." Mr. Waring said he could drop off Mr. Lair on Y Highway on either Thursday or Friday shortly before Mr. Dees came home from work, and Mr. Lair could then flag Mr. Dees down and kill him. Heavy snowfall, however, prevented Mr. Waring from picking Mr. Lair up as arranged. On the following Saturday or Sunday, Mr. Waring and Mr. Lair met at Mr. Waring's request so that Mr. Waring could get the gun back before Mr. Dees missed it.
The next meeting occurred when Mr. Waring and Ms. Dees pulled her car into the parking lot of an ice cream shop. Both Mr. Waring and Ms. Dees got out of the car and approached Mr. Lair. Mr. Waring told Mr. Lair that "we need to get this done. He's starting to hurt her more and more, giving her hard times." Ms. Dees, standing next to Mr. Waring, did not comment but occasionally nodded her head affirmatively. Mr. Waring then invited Mr. Lair to a party at the Dees' residence on Saturday night so that Mr. Lair would have another chance to kill Mr. Dees.
Mr. Lair went to the Dees' party on the Saturday night before he killed Mr. Dees, arriving late in the evening. During the evening, he was stopped by Mr. Waring and Ms. Dees, who were talking. Mr. Waring said that "you've got to get this done . . . tomorrow" and that "there's being real problems." Mr. Lair replied, "I don't know if I'm going to be able to do it . . .. I'm having second thoughts." Mr. Waring told Mr. Lair that he needed to make up his mind. After a brief pause, Ms. Dees said, "Well, if it helps you make your decision, he raped me again last night." There was no further conversation.
The next morning, Mr. Waring took Ms. Dees to work and then returned to the Dees' house with his cousin, Gary Sharp. Mr. Lair had spent the night at the Dees' home and was still there when Mr. Waring arrived. As the men prepared to leave the Dees home, Mr. Waring motioned for Mr. Lair to step into the bedroom, and then handed Mr. Lair one of Mr. Dees' firearms. Mr. Lair put the gun in his pocket. Mr. Waring, Mr. Sharp and Mr. Lair then left in Mr. Dees' Camaro. As they were driving on the highway, Mr. Dees drove past them and saw Mr. Waring driving the car. Mr. Waring told Mr. Lair, "You've got to do it now. He's already seen me driving the car. He's probably pissed off. He'll be coming after me."
Mr. Lair got out of the car at the next hill. He ran to a nearby ice cream shop and then started walking down the highway. Shortly thereafter, Mr. Dees drove up to him and asked him where Mr. Waring was. Mr. Lair replied that he did not know and asked for a ride home. Mr. Dees agreed, but told him that "there's a couple of things I need to take care of first." Mr. Lair got in the car and they drove to the grocery store where Ms. Dees was working. Mr. Dees went inside while Mr. Lair remained in the car. Mr. Dees returned about 10 minutes later and started to take Mr. Lair home. Mr. Lair then remembered that he had left his cigarettes at the Dees' house, so they returned to the Dees' house.
When they arrived at the Dees' house, Mr. Dees went into his bedroom and started opening drawers. He then came out of the bedroom and said that "nobody's getting away with something that I paid for with money that I worked hard for." Mr. Lair thought that Mr. Dees was referring to the pistol which Mr. Lair had received from Mr. Waring that morning and which was in Mr. Lair's jacket pocket.
Mr. Dees again started to take Mr. Lair home. As they turned off the highway and started back through town, Mr. Dees saw Mr. Waring walking past. Mr. Dees turned onto Lee Street in front of Mr. Waring and waited for Mr. Waring to reach the car.
While Mr. Dees was watching Mr. Waring, Mr. Lair shot him three times in the head. Mr. Lair then jumped out of the car and ran down the sidewalk. He turned down the street and started running down the Fishing River Trail. He threw the gun in the river and was standing in front of a pool hall when his cousin, Melinda Dowler, drove by and picked him up.
The police spoke briefly with Mr. Waring at the scene of the murder. He was later interviewed on two separate occasions at the police station. After giving a second statement to the police, Mr. Waring called Mr. Lair and asked him to turn himself in so that Mr. Waring and Ms. Dees could get on with their lives and stay out of jail.
Ms. Dees was also questioned by the police after the murder. Initially, she indicated that she knew nothing about her husband's death and knew of no one who wanted to harm him. However, after being confronted with Mr. Waring's earlier statements, Ms. Dees admitted that she and Mr. Waring had been involved in a sexual relationship for the prior six to eight months, that during that time period she was sexually abused by her husband, that she had relayed this information to Mr. Waring and that Mr. Waring was very upset by this information.
Ms. Dees said that, on at least two occasions when she was speaking with Mr. Waring about this sexual abuse by her husband, they discussed finding someone to kill her husband. On the first occasion, about six months prior to the killing, Mr. Waring had contacted Mr. Cinadr to kill Mr. Dees. Ms. Dees stated that when she discovered this, she talked Mr. Cinadr out of doing the killing. About one week prior to the killing, Mr. Waring again brought up the subject of finding someone to kill Mr. Dees. Ms. Dees admitted that, at that point, she neither encouraged nor discouraged Mr. Waring. In addition, Ms. Dees stated that she was aware that her husband had an insurance policy through work. She claimed, however, that she did not know whether the policy would pay if he was injured while not working.
The jury found Ms. Dees guilty of first degree murder and armed criminal action. She was sentenced to a term of life imprisonment without probation or parole for murder in the first degree and a concurrent 15-year term for armed criminal action.
Following trial, Ms. Dees filed a pro se motion to vacate, set aside or correct the judgment or sentence. She claimed that her trial counsel was ineffective for a number of reasons, including the failure to call her daughter, Trisha Gottschall, as a witness and the failure to advise Ms. Dees herself to testify. An amended motion, filed by appointed counsel, asserted in addition that her trial counsel had failed "to thoroughly investigate and follow up on information and potential witnesses" provided to them by Ms. Dees.
After an evidentiary hearing, the trial court overruled Ms. Dees's motion, entering findings of fact and Conclusions of law. This appeal followed.
Remarks by the Prosecutor in Closing
Argument Did Not Constitute Plain Error.
Ms. Dees contends that the trial court committed plain error because it failed to declare a mistrial, sua sponte, when certain comments made by the assistant prosecutor during the State's closing argument allegedly violated Ms. Dees's statutory and constitutional right to remain silent.
1. Remarks Concerning Failure to Testify.
When first questioned by the police after her husband's murder, Ms. Dees chose to give a statement to the police about some matters relevant to the crime, but failed to tell them about the fact that her husband's pistol was gone and that Mr. Waring had told her that Mr. Lair had killed her husband. At trial, as she was entitled to do, Ms. Dees chose not to testify.
Because Ms. Dees had waived her right to remain silent in questioning by the police, the prosecutor was entitled to comment in closing argument on the fact that the statement she gave was incomplete. State v. Bragg, 867 S.W.2d 284, 292 (Mo. App. 1993). He did so extensively, noting that the reason that the State had made a "deal" with Mr. Lair and Mr. Waring was because Ms. Dees had failed to tell the police about her involvement, and so, without a deal with those gentlemen, Ms. Dees "would have walked away" from the crime.
Unfortunately, the prosecutor then used the word "testimony" rather than "statement" in a portion of his closing argument which otherwise dealt with Ms. Dees' failure to be truthful in her statements to the police. Specifically, he stated as follows:
But, I'll tell you, without the deals you never would have heard the story. You never would have heard Jon Lair get up here and you never would have heard Richard Waring. You never would have heard Cinadr, and this gal would have walked away.
The one adult behind the whole thing, the wife of the victim, the woman who swore before God to love, honor, and obey her husband for the rest of her life would have walked away.
And the fact of the matter is that she didn't walk away because she is in court, because she hasn't come forward and given truthful testimony. The fact of the matter is that she is the most responsible of them all.
This comment was error. The fact that Ms. Dees gave a statement to the police did not entitle the prosecutor to comment on her decision not to testify at trial.
Defense counsel did not object to this statement at the time it was made; nor did he do so at a later time before submission to the jury. He did not ask the trial Judge to instruct the jury to disregard the reference to Ms. Dees' failure to testify, and the trial Judge did not offer such an instruction sua sponte. He did not move for a mistrial and the trial court did not declare one sua sponte.
2. The Prosecutor's Comment Was An Improper and Direct Comment on Defendant's Failure to Testify.
The State argues that because Defendant recognizes that the prosecutor's comment on Ms. Dees' failure to testify was inadvertent rather than intentional and because it occurred in the context of an argument intended to address her failure to give truthful statements to the police, we should not find that it constitutes a comment on her failure to testify at all.
We disagree. Whether or not the comment was intentional does not change the fact that it constituted a direct reference to defendant's failure to testify. A direct reference to a defendant's failure to testify is made when the prosecutor's reference is definite and certain, such as by the use of the words "defendant," "accused," and "testify" or their equivalent. State v. Lawhorn, 762 S.W.2d 820, 826 (Mo. banc 1988); State v. Robinson, 641 S.W.2d 423, 426 (Mo. banc 1982); State v. Laws, 854 S.W.2d 633, 636 (Mo. App. 1993). That is exactly what occurred here. *fn2
Here, however, defense counsel failed to object to the prosecutor's comment, and thus has failed to preserve this error for appeal. Ms. Dees argues on appeal that we nonetheless should consider this question as a matter of plain error.
As a general rule, plain error review is used sparingly. It provides a basis for reversal only when the defendant goes beyond a showing of demonstrable prejudice to establish manifest prejudice affecting substantial rights. This is normally accomplished only upon a showing by the defendant that the improper comment had a decisive effect on the jury's verdict. State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993).
It is particularly difficult to obtain relief based on an assertion of plain error concerning closing argument, such as is made here. This is because trial strategy looms as an important consideration in determining when and whether to object in closing argument. State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc), cert. denied, U.S. , 115 S. Ct. 250, 130 L. Ed. 2d 172 (1994). For this reason, in the absence of a timely objection and request for relief, the trial court's options in the face of improper argument are narrowed to uninvited interference with summation and a corresponding increase in the risk of error by such intervention. State v. Parker, 886 S.W.2d 908, 927 (Mo. banc 1994), cert. denied, U.S. , 115 S. Ct. 1827, 131 L. Ed. 2d 748 (1995).
On the other hand, if objection is made, the trial court has the option of considering whether any prejudice can be cured by sustaining the objection and, if so requested and in more serious cases, by instructing the jury to disregard the comment. State v. Nolen, 872 S.W.2d 660, 662 (Mo. App. 1994).
Ms. Dees argues that this rule does not apply where, as here, the improper comment constituted a direct comment on the defendant's failure to testify. She alleges that such an error is so serious that it cannot be cured by an instruction below, and that the only remedy which will avoid manifest inJustice is to grant a mistrial.
In support, Ms. Dees cites to a number of cases decided prior to 1992 which held that, even in the absence of objection, a new trial was required where the prosecutor directly commented on the failure of the defendant to testify. For instance, State v. Reed, 583 S.W.2d 531 (Mo. App. 1979), reversed for a new trial because the prosecutor ...