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State v. Prewitt

Court of Appeals of Missouri, Western District, Third Division

May 21, 2019


          Appeal from the Circuit Court of Pettis County, Missouri The Honorable Robert Lawrence Koffman, Judge

          Before Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert, Judge, Edward R. Ardini, Jr., Judge

          Anthony Rex Gabbert, Judge

         Patricia Prewitt appeals the circuit court's denial of her Motion for Post-Conviction DNA Testing which requested the testing of evidence related to Prewitt's 1985 conviction for capital murder.[1] In Prewitt's sole point on appeal she contends the circuit court clearly erred in denying her motion on the grounds that the court, 1) did not properly assess whether a reasonable probability exists that Prewitt would not have been convicted if exculpatory results were obtained through the requested DNA testing, 2) erroneously applied the standard for release under Section 547.037, not the standard for testing under Section 547.035, and 3) relied on factual errors and extrajudicial information in reaching its decision.[2] We affirm.

         Trial Evidence

         Patricia Prewitt and William Prewitt (Bill)[3] were married August 8, 1968. In 1976, the couple purchased a lumber yard in Holden, Missouri and jointly ran the business. By 1984, the couple had five school-aged children. In the early morning hours of February 18, 1984, Prewitt and Bill returned to their home after an evening of socializing with friends. Prewitt testified that, sometime after both she and Bill fell asleep, she was awakened by a sound like thunder. She was grabbed by the hair and pulled from bed by an unknown assailant. She could feel something sharp at her throat. The intruder pulled her pajama bottoms and underwear off and was fumbling with his belt. Prewitt could tell the assailant was getting very nervous and very angry. He told Prewitt to stop crying. He abandoned his attempt to rape Prewitt, left, and Prewitt never saw him again.

         After the intruder left, Prewitt checked on Bill who was making gurgling noises. She went into the children's rooms and found them all asleep. She went back to check on Bill but was unable to see in the bedroom because the lights were not working. She retrieved a flashlight from the truck outside and, after seeing blood on her husband, woke the children. She told the children there was a small fire and got them dressed. Prewitt took the children outside to the car and told them to lock the doors. She went back inside the home and again checked on Bill. She touched him and he felt cold. She ran back outside and drove to a neighbor's home for help. She saw a light on at Cliff and Patricia Gustin's home. Prewitt had blood on her hand from touching Bill, and washed it off at the Gustin's as she did not want the children to see the blood.

         Bill was shot with a .22 caliber repeater rifle which was normally kept unloaded in the Prewitts' bedroom closet behind a chest of drawers. Bullets were stored in a bedroom drawer and in Prewitt's jewelry box. The rifle was found three days later in the Prewitts' pond; it was fifteen feet from the bank in eleven inches of water. A footprint from Prewitt's boot was observed nearby on the bank and, after the pond was drained, another footprint was found on the pond bottom near the rifle. The phone line in the Prewitt bedroom had been cut, and power to the home had been turned off at the basement breaker box.

         Dr. James Bridgens, a forensic pathologist, testified at Prewitt's trial that in his expert opinion Bill was asleep immediately before he was shot twice in the head. Bill was breathing after the first shot, but the second shot would have ended all bodily functions including any ability to breathe; the second shot severed the brain stem and caused instant death. The angle of the second shot indicated the gun would have been held "almost on top" of anyone else sleeping in bed with the victim.

         Bridgens testified that the cut marks found on Prewitt's neck after the alleged attack appeared to be "hesitation marks," described as superficial marks in the skin with a very uniform parallel pattern, seldom going deeper than through the skin, and found in a location accessible to the individual. Bridgens described Prewitt's neck wounds as "superficial lacerations, actually little more than scratches," with "a unique parallel pattern to them." Bridgens found the marks characteristic of self-inflicted hesitation marks. He found the marks inconsistent with wounds that might be expected from an attempted rapist wielding a knife in total darkness.

         Prewitt initially denied any extramarital affairs, but ultimately admitted four affairs after confronted with proof by law enforcement. She testified to those at trial. She attributed the affairs, in part, to having been raped by three unknown assailants in May of 1974 in Sedalia, Missouri. She testified that her husband dropped her off to shop and the two agreed to meet at a nearby park at a given hour. Prewitt was walking through a residential neighborhood admiring the architecture of old homes when three men pulled her into the bushes and raped her. Prewitt testified, "And an older woman came out of her house and she was so cute, she scared them away. She brought me inside made me a cup of tea and helped me clean up." Prewitt's husband came to pick her up and they decided to never tell anyone of the rape. The first time Prewitt revealed the rape was to defense counsel in explanation of her extramarital affairs. Prewitt testified that, after the rape, although Bill was sympathetic, he became distant and no longer desired sexual intimacy. Prewitt sought comfort from other men and, at trial, admitted to having sexual relations with J.H., R.H., R.M., and D.B.[4]

         Prewitt admitted to telling her paramours that she wanted a divorce from Bill, and leading them to believe Bill physically beat her. She never told the men about the rape which prompted the extramarital affairs because, it "hurt too much to tell." Prewitt testified that, contrary to what she told her extramarital partners, Bill had never beaten her and "was a kind and gentle person." She lied to the men because she did not want them to think badly of her.

         J.H. testified that he first met Prewitt at her place of business and they engaged in a sexual affair that lasted several months, meeting at different places including Prewitt's residence in Holden and a motel in the city. J.H. testified that Prewitt told him that she wished Bill would be killed in a car accident or some type of accident, and that she knew where the gun was in the house and thought about killing Bill in his sleep. She expressed these thoughts to J.H. at least twice. J.H. testified that he did not believe Prewitt when she discussed wanting Bill dead. J.H.'s and Prewitt's affair ended when Bill caught J.H. at the Prewitt home.

         Prewitt testified that J.H.'s statements regarding their sexual relationship were essentially correct. Although she did not remember telling J.H. that she wished Bill dead, she testified, "I have said things like that I'm sure." She explained that during the "bad times" she was sure she had said she "wished he got run over by a truck or something like that." When asked if Prewitt had actually wished Bill dead she testified, "No. I was confused, I don't know - I don't know. I never wished he was dead. We needed him too much. The kids needed him too much." When asked on cross-examination why J.H. would state that Prewitt told him that she thought about killing Bill, she stated that she did not know because, "[J.H.'s] a good man. [J.H.'s] a good person. I don't know what you did to him to make him say that."

         R.H. testified that he became acquainted with Prewitt at the Prewitt's lumber yard as he worked at a lumber yard across the street. R.H. had sexual intercourse with Prewitt on three occasions, once at a motel and twice at Prewitt's residence while Bill was at work and a ball game. Prewitt's children were in bed on one occasion and outside on another. R.H. testified that Prewitt asked R.H. if he knew of a way of getting rid of Bill. Prewitt told R.H. that she and Bill had plenty of insurance money that would allow R.H. to build a lumber yard and Prewitt to become wealthy. R.H. testified that he did not place any credibility in Prewitt's statements, and that the affair occurred approximately seven years prior to trial. R.H.'s affair with Prewitt ended when R.H. moved away from the area.

         R.H. was cross-examined on the fact that police promised R.H. he would not have to appear in court if he signed a statement, and defense counsel suggested R.H. had been coerced into signing the statement. R.H.'s credibility was attacked with a 1969 conviction for stealing cattle in Mercer County.

         Prewitt testified that most of what R.H. testified to was true, although they were only "together" two times, not three. When asked about R.H.'s testimony that, if he would get rid of Bill they would buy a lumber yard and move off, Prewitt testified that R.H. used to talk about wanting to buy a lumber yard down in the Ozarks or Warsaw. She always considered the possibility of him buying his own business slim. She stated that she never asked him to kill Bill.

         R.M. testified that he had an ongoing affair with Prewitt for a number of years while residing next door to the Prewitt residence when the Prewitts lived in Lee's Summit. He testified that, while Bill was at work, R.M. would go to the Prewitt residence, help with gardening, and work around the house. R.M. knew Bill as Bill had previously given him a job. R.M. considered Bill a good guy and a friend. According to R.M., he engaged in sexual intercourse with Prewitt at her home approximately once a week. Prewitt told R.M. that Bill did not sexually satisfy her. After the Prewitts moved to Holden, the relationship continued. R.M. testified that Prewitt told him that, when she was in high school, she was forcibly raped at knife-point by a group of guys at a drive-in. She discussed no other incidents of being raped.

         R.M. testified that, in June or July of 1982, while working on the Prewitt's truck at their residence, R.M. went into the kitchen to get some water. Prewitt was crying in the kitchen. She told R.M. that Bill had been beating her and making Prewitt have sex. R.M. told Prewitt that she and Bill should separate or divorce. Prewitt told him that she did not want to because Bill would end up getting the children and the lumber yard, and she would have nothing. Prewitt told him that she needed to have Bill killed and suggested R.M. assist. She proposed that R.M. come to the home one night and set a barn on fire. Prewitt would then send Bill outside to check on the fire, and R.M. would shoot Bill. Prewitt offered R.M. $10, 000 to be paid from life insurance proceeds. R.M. testified that he told Prewitt it was a crazy idea, and that he did not believe she was saying those things.

         After Bill's death approximately nineteen months later, R.M. spoke with Prewitt at the Prewitt lumber yard and told her that he had spoken with authorities regarding the statements she had made. Prewitt asked R.M. to tell authorities he was lying, but R.M. told her he had already given a statement. R.M. then told Prewitt that if she married him, he would not have to testify against her in court; he would divorce his present wife and marry her. R.M. testified that, at first, he lied to authorities about his affair with Prewitt to protect both Prewitt and himself, but his conscience started bothering him so he ultimately admitted the affair and Prewitt's statements.

         R.M. admitted to previously smoking marijuana and taking heroin and LSD. R.M. also testified that he had fired one of the Prewitts' guns. R.M. testified that he and his wife were at the Prewitt home for dinner two weeks prior to Bill's murder.

         Prewitt testified that R.M.'s testimony regarding a lengthy affair was untruthful, and that they only had sexual relations on four occasions. She stated that, even after the affair was over, R.M. would tell Prewitt he loved her and believed she loved him. Prewitt confirmed that, after Bill's death, R.M. visited the lumber yard and told her that he had spoken with police. Prewitt testified, "I just listened because I had no idea what he was talking about." R.M. then told her that he had a good idea of how he could get out of testifying against her and said that, if she married him, legally a husband could not testify against his wife. Everything would then be fine and they could live on the insurance money. Prewitt responded, "Rick, you're married!" R.M. replied that his wife was fine with the plan. Prewitt testified that she could not believe R.M. would say such things and told him, "I would rather rot in prison forever than to ever touch him much less marry him."

         Prewitt testified that she never asked R.M. to kill her husband. She said that R.M. scared her and that he was "weird." She said R.M. sees things differently than other people and she never knew what he was going to do. Prewitt testified, "Especially I never told Bill about him." Prewitt was afraid R.M. would tell Bill about their relationship and so, "I couldn't tell him to very bluntly never come back, so he would come back and visit. I would have to feed him supper and try to avoid him, but still be nice."

         Two life insurance policies on Bill, first issued in the late 1970's, were in effect at Bill's death - one for $43, 488.78 and one for $49, 987.31. Richard Reimer of I.C.H. Corporation testified that claims on these policies had been filed by Prewitt as primary beneficiary. There had also been a policy on Bill through American Family Insurance Agent Teddy Guinn, which lapsed in 1981. Through Guinn, the Prewitts had active life insurance policies on Prewitt and the children. On February 16, 1984, two days before Bill's murder, Guinn went to the lumber yard and spoke with both Bill and Prewitt about keeping Prewitt's and the children's policies in force as they had recently lapsed. He also discussed Bill's policy that lapsed ...

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