Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Pettis County, Missouri The
Honorable Robert Lawrence Koffman, Judge
Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert,
Judge, Edward R. Ardini, Jr., Judge
Anthony Rex Gabbert, Judge
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. 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. We affirm.
Prewitt and William Prewitt (Bill) 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.
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.
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.
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.
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.
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
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.
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.
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."
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.
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.
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.
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.
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.
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
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
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."
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."
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 ...