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State v. Sauerbry

Court of Appeals of Missouri, Western District, Second Division

November 12, 2014


As Corrected December 2, 2014.

Appeal from the Circuit Court of Jackson County. The Honorable Roger M. Prokes, Judge.

Daniel N. McPherson, Jefferson City, MO, for appellant.

Frederick Ernst, Kansas City, Mo, for respondent.

Before Division Two: Gary D. Witt, P.J., and Lisa White Hardwick and Alok Ahuja, JJ. All concur.


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Alok Ahuja, Judge

Following a jury trial, Jeffery S. Sauerbry was convicted of first-degree murder in the Circuit Court of Jackson County. Sauerbry appeals. He claims that his constitutional right to confront the witnesses against him was violated when the court permitted a pathologist to testify to her opinions concerning the nature and cause of the victim's wounds, even though the testifying pathologist had not conducted the victim's autopsy. Sauerbry also challenges the trial court's refusal to permit him to impeach one of the State's principal witnesses with allegedly false testimony she had provided in a separate criminal proceeding involving her son, and with the amount of money the witness had spent in connection with her son's defense. We affirm.

Factual Background

In July 1998, Sauerbry performed odd jobs at E& L Motors, a used car lot in Independence. In exchange, he was allowed to occasionally sleep at the lot. William Kellett had a similar arrangement with E& L Motors; he served as a night watchman in exchange for being allowed to live in a travel trailer parked at the lot. The owner of E& L Motors, Earl Tharp, also lived at the lot. Sauerbry and Kellett had an acrimonious relationship.

On the night of July 3, 1998, Tharp left the lot at approximately 9:00 p.m. and did not return until sometime between 2:30 and 4:00 a.m. At approximately 9:00 a.m. on July 4, Tharp went to Kellett's trailer to use his phone. Tharp found the trailer locked and returned with a key. On entering the trailer, Tharp found Kellett's body.

Kellett had suffered twelve sharp-force injuries consisting of four stab wounds and eight incised wounds (wounds which were longer than their depth). The stab wounds were to Kellett's head and chest. The incised wounds were to his neck and hands. The wounds to his hands were consistent with defensive wounds. The Chief Medical Examiner of Jackson County, Dr. Mary Dudley, testified that a neck wound that went through to Kellett's vertebrae was fatal. Dr. Dudley testified that, although the deepest stab wound was five-and-one-quarter inches deep, it was consistent with a knife with a four-and-one-quarter inch blade that was recovered from Sauerbry.

Kellett also had a gunshot wound to the right side of his neck. Based on stippling on Kellett's skin, Dr. Dudley testified the shot was fired at an intermediate range. The bullet penetrated just inside the skin; although it tore some muscle and soft tissue, it did not hit any vital structures of the body. Dr. Dudley testified that the

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gunshot wound was " unusual," because " it didn't go very far" ; she also testified that the gunshot wound was " consistent with a low velocity on th[e] bullet" that was recovered from Kellett's body.

At approximately 9:00 p.m. on July 3, Independence Police stopped a car carrying Sauerbry and two other persons. Sauerbry was sweating profusely and was jittery and nervous. The other two occupants of the vehicle had outstanding warrants and were arrested. Sauerbry was allowed to leave on a bicycle that was in the trunk of the car.

The next morning, Sauerbry went to the home of a friend, John Wesley. Wesley was leaving to run errands and Sauerbry asked to join him. Sauerbry brought his backpack with him. When Wesley pulled his vehicle into the drive-through lane of a McDonald's restaurant, Sauerbry got out of the car with his backpack, walked inside a fenced area containing a waste dumpster, and returned to Wesley's car without the backpack. When Wesley asked Sauerbry why he had thrown the backpack away, Sauerbry stated that the woman he was living with was upset about his dirty clothes, so he had discarded them.

On July 5, Wesley and Sauerbry were watching television at Wesley's house. A news report came on about Kellett's murder. Sauerbry stood up, stated that " that guy was an asshole," and left the house. Wesley discussed the incident and the backpack with a neighbor, who contacted the police. The police conducted a search of the landfill where the McDonald's restaurant's trash was taken, but were unable to locate the backpack.

The police conducted a search of the basement where Sauerbry was staying at the time of the murder. The police recovered a knife and a .410-gauge shotgun with a sawed-off barrel. The shotgun was wet, and was wrapped in a plastic bag within a zippered bag. Initially, Sauerbry denied owning any weapons; when confronted with the weapons found in the search, he admitted they were his.

Sauerbry was questioned by police regarding his whereabouts on July 3 and 4. He denied involvement with Kellett's murder, and stated that he had not seen Kellett in several weeks. He also denied going anywhere with Wesley on July 4, and denied disposing of his backpack. Sauerbry stated that after the police stop of the vehicle in which he was a passenger on the evening of July 3, he rode his bicycle to a liquor store, and then to the house in which he was staying. He then went to bed and did not wake up until noon on July 4. Although Sauerbry initially stated that he had stayed home all day on July 4, he later admitted to attending a party at Wesley's home that evening.

Diana Reno Huffman, the mother of one of Sauerbry's childhood friends, testified that Sauerbry had admitted to her that he had killed Kellett. Sauerbry stated that he and Kellett had been playing poker and that Kellett was " F-ing" with him. Sauerbry told Huffman that he left and then came back to the trailer with his shotgun. He went to the side of the trailer and made a noise. When Kellett looked out the window Sauerbry shot him in the face. Huffman testified that Sauerbry also told her about throwing away his backpack at the McDonald's restaurant. Huffman did not relay this confession to the police until 2009, eleven years later.

The initial forensic testing of the evidence collected from Kellett's trailer and Sauerbry's residence yielded no evidence to tie Sauerbry to the crime. The investigation stalled.

In 2007, nine years after Kellett's murder, the investigation was reopened, witnesses were reinterviewed, and the physical

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evidence was reexamined using new scientific techniques. This reinvestigation included taking the knife recovered from Sauerbry's residence to the medical examiner to determine if Kellett's wounds were consistent with the knife. At the medical examiner's suggestion, forensic examiners removed the knife's handle and found human blood and skin cells. The samples retrieved were insufficient to develop a genetic profile through DNA testing.

The .30-caliber bullet which had been recovered from Kellett's neck was also reexamined. Because it did not have any rifling marks, a firearms examiner determined that the bullet could have been fired from a smooth-bore firearm such as the .410-caliber shotgun recovered from Sauerbry. The firearms examiner test-fired Sauerbry's shotgun using .30-caliber ammunition. Based on the stippling pattern that developed when firing Sauerbry's shotgun using .30-caliber ammunition from different distances, the examiner testified that the bullet that entered Kellett's neck would have been fired from a distance of twenty-four to thirty-seven inches. The examiner also testified that the .30-caliber bullets test-fired from Sauerbry's shotgun had a very low velocity on leaving the shotgun's barrel, and were not stable in flight; the examiner testified that this was consistent with the bullet being recovered just inside Kellett's neck, rather than traveling through his body.

The police spoke with Huffman in June of 2009. She stated that she was afraid of Sauerbry and did not want to be involved in the investigation beyond the original statement she had given to police in 1998. Nearly a month later, Huffman contacted police and told them that Sauerbry had admitted to her that he had killed Kellett. She also stated that sometime before the murder, Sauerbry had shown her the shotgun while at her house. Additionally, Huffman told police that one week prior to Kellett's death, Sauerbry had told her that he was going to kill Kellett, because he couldn't get away from Kellett in any other way.

As a result of the reopened investigation, Sauerbry was charged with first-degree murder. A jury found him guilty and the court sentenced him to life imprisonment ...

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