State v. Franco

Missouri, Respondent, STATE FRANCO, Appellant.

David S.

No. 59623.

Supreme Court of

en banc.

Dec. 1976.

Rehearing Denied Jan.

534

In view jury’s inability agree upon punishment, the court sentenced him to Department confinement Missouri of for a term twenty-five years Corrections of each on count ordered said sentences to consecutively. run Appellant challenges sufficiency the support the evidence to guilty the verdicts by jury, returned the attacks the failure of the trial court to have instructed jury the manslaughter, charges and levels two on respect evidentiary with to certain error rulings.

The evidence relied the by state, germane insofar as any issues on appeal, entirely almost circumstantial nature, and substantially identical as to both counts the indictment. es Certain principles bearing appellate tablished on re view, murder, as well as the elements of degree, warrant pro second mention as a Shull, City, appel- William E. Kansas logue determining whether there was lant. substantial sufficient evidence to support Gen., Danforth, Philip M. Atty. John C. murder, guilty verdicts of second de Gen., City, for Koppe, Atty. Asst. Jefferson First, gree, jury. returned the facts respondent. in evidence and all favorable inferences rea sonably to be drawn therefrom must be DONNELLY, Judge. light most considered favorable to case was here transferred state and all evidence and inferences to Appeals, City Court of Kansas Dis- Missouri must contrary disregarded. be State trict, origi- we it the decide same as McGlathery, (Mo.1967); 447 V, appeal. Mo.Const. Art. 10. The nal § Chase, (Mo. and State S.W.2d 398 case, they appear as facts Second, 1969). when the state’s case opinion written the Court of principal evidence, upon circumstantial rests “the J.) (Somerville, are set forth with Appeals and circumstances must be consistent facts changes "quotation without marks. minor hypothesis each other and with the with which deals portion That guilt, they defendant’s incon sufficiency of the evidence to sus- with with his innocence and exclude ev sistent was also written the convictions tain hypothesis of reasonable his innocence.” ery here, adopted and is sub- Judge Somerville Ramsey, (Mo. 368 S.W.2d State written, stantially originally as Thomas, also: See marks. quotation (Mo.1970). Third, pre rule, vailing circumstantial evidence February realistically tempered application in a two-count indictment with charged involving since a case degree murder in the first “[i]n conventional not circumstances need be ab Appel- Terry C. Ott and Linda Baber. 15,1974. solutely guilty, conclusive of need began July July lant’s trial inno 19,1974, impossibility him under both demonstrate jury guilty found not . cence[;] . . the mere existence of indictment of the lesser in- counts murder, enough degree. possible offense second hypothesis other cluded v. Ronald ownership P. Palermo’s of the auto- jury.” case from the remove prior its theft. v. matic Thomas, also: supra, at 162. See (Mo.1969); and Taylor, owed victim C. Ott Maxie, 513 S.W.2d 338 $2,000.00, and money approximating sum of Fourth, wilful, killing of a premeditated three months two or some con- being aforethought with malice human 1974, dispute erupted between 2, a heated degree. murder the second in stitutes repayment money. of the regarding the two Archer, 661, (Mo.1959); 8:30 A.M. on the morn- approximately At Strong, 759, 764-765 2, 1974, appellant, in an January ing of Anderson, (Mo.1960); and Ott, Terry telephoned contact C. attempt to 116, and asked her to Kay Baber’s mother Linda Terry touch with and have him call in get upon A review of the evidence relied Appellant gave Linda’s mother appellant. state, a substantially from condensed Terry telephone number where could a now to be lengthy transcript, appears telephone which he him. The number reach 2, 1974, January and for some order. mother was the tele- Linda’s listed gave thereto, appellant possessed a prior time Sherry’s home at 6130 number for phone dwelling house located at certain key to vicinity A resident in the of 6130 Cherry. County, Jackson Cherry, City, Kansas testified that sometime between Cherry Sherry Sherry_. owned 2,1974, P.M. on January A.M. and 1:15 9:00 in view of the given appellant key had explod- heard what sounded to him like he January intimacy relationship. of their ing “firecrackers”. 1974, 31, Terry the bodies of C. Ott approximately January At 12:30 P.M. on Kay Baber were discovered Sher- Linda 1974, Sherry 2, returning was to her home pile a of two other friends under ry and painting class when a 9 A.M. she awnings the basement of her from canvas appellant at 63rd and Cherry encountered Lin- (6130 Cherry). Terry C. Ott and home Appellant stopped her and invited Baber, Streets. Kay living togeth- who had been da accept- lunch with him. After to have her er, morning of were last alive on the seen invitation, appellant’s luncheon she ing 2, January pathologist, 1974. A forensic Cherry drove her car to her home at 6130 performed autopsies upon the bod- who had appellant followed in his car. When victims, of the rendered an that opinion ies supplies to her painting started take she approxi- victims had been dead two home, appellant suggested her that she into when their bodies were mately “a month” in her car and that immedi- them leave Further, wounds to “Gunshot discovered. place a ately proceed Sherry for lunch. hemorrhage”, in the chest with massive got appellant’s into car. acquiesced pathologist, of the was the cause of opinion death, Terry Ott’s and “Gunshot wound C. lunch, place en route to a for When Sher- hemorrhage”, chest with massive to the jewelry appel- some Indian ry noticed was the pathologist, of the particular admired a Indian lant’s car. She During death. Kay of Linda Baber’s cause (with it) missing buckle a stone from belt autopsy upon body course among jewelry, whereupon was which bullets Kay two .380 caliber Baber Linda it her. The belt gave buckle appellant removed, which, according to a ballis- were identified and admitted into evidence. known to have expert, matched bullet Terry tic A brother of victim C. Ott testified caliber a certain Llama .380 had be- previously fired from buckle been the belt that 2, 1974, pistol January introduced into evidence. but longed prior to him automatic Terry. Sherry disclosed that the automatic it to further testi- gave he Evidence Palermo, riding appellant’s to Ronald P. while car en belonged fied that had 2, 1974, January she ob- appellant, but was stolen to lunch on route brother-in-law a box in the back seat of his car around the middle served Palermo’s home from marijuana”. Although like December, was aware of which “smelled Baber, to Linda inquiry appellant par- as to which was found she box, on a tially refused to disclose concealed rafter in the basement contents discovered; victims’ Terry reput- contents to her. Ott bodies were C. where 2, 1974, presence January marijua- (4) appellant’s to have been a “wholesaler” ed area dwelling in the immediate house na. eventually the victims’ bodies were where Ott, Testimony disclosed Terry later; (5) a month almost found death, regularly large his carried prior message left a vic- fact upon When his person. of cash his suhis morning C. Ott call him on the tim discovered, no cash was found body was January dwelling at the house person. January Subsequent victims’ where the bodies were found. appel- to but Although similar circumstantial evidence lant, company per- of several other dispositive question are not cases sons, trip a to at which California case, submissibility of this since each case he was observed to have a substantial time in light be considered of its own par- upon person. of cash amount v. circumstances, State facts ticular date the victims’ bodies were dis- On the Maxie, supra, a case resting entirely on Sherry’s the in basement of home covered evidence, worthy of men- Cherry, purse belong- a as 6130 identified at There, this Court affirmed a convic- tion. Baber, Kay partially Linda concealed ing to degree murder second where tion basement, by rafter in the was found aon considerably less evidence existed from police Appellant officers. la- investigating guilt the accused’s could be reason- which police although certain that told officers ter inferred than ably exists the instant case. been with C. Ott and Linda Terry had he Maxie, In State v. only the evidence Kay Baber several times to their arguably could be said to connect the that deaths, had never Linda touched with the victim’s death was accused A was purse. fingerprint latent Baber’s of his presence fingerprint on a box located purse in the base- from discovered lifted apartment body an where the victim’s ment, which, according testimony, expert to found. was left impression appellant’s an matched The reasonable the evi- inferences which finger. ring presented by the state in this case dence could reason- jury The in the instant case jury to impel draw this Court permitted vic- infer from the of the ably concealment that there substantial hold sufficient to intentionally bodies were tims’ support jury verdicts find- evidence circumstances that could not be under killed murder, guilty ing appellant second de- excusable, or and that justifiable deemed under both counts of the indictment. gree, accidental. deaths were suicidal or their the trial court asserts testimony pathologist combined The failing manslaughter. instruct erred expert amply supported ballistic a find- “that the presented contends entire case He victims’ deaths by jury ing him was circumstantial against used deadly weapon a caused were nothing introduced that would indi which Further, parts of their bodies. vital occurred, reason the or cate the homicide the collec- reasonably infer from could jury surrounding facts and circumstances it. impact following evidence that tive evidence, of such absence affirmative In the ques- homicides appellant committed the * * * manslaughter instruction must a (1) appellant’s to the basement access tion: as a matter law the court.” given dwelling victims’ house where the found; (2) appellant’s posses- support were Appellant’s contention finds bodies filed in State v. belt the after- concurring opinion Indian buckle on of an sion 275, 283, 284 (Mo. Mudgett, belonged which noon Johnson, Ott; in which State v. 1975) 505 (3) presence S.W.2d victim a belonging (Mo.1974), was construed to hold that fingerprint purse 94 appellant’s 537 Appellant finally asserts “the trial court a lesser homi- give trial court allowing impeach the state erred in in a “circumstantial-evi- instruction cide objection Palermo over the witness own case. dence” establishing proper the defendant 527, 189 Holland, Mo. v. In State using and basis and those facts foundation 2 of 989, No. (1945), Division S.W.2d de- evidence and said error as substantive said: Court right defendant his constitutional nied the to the fol special “We call attention process due of law as to a fair trial and Dickson, 78 Mo. v. lowing cases: State Amendment, the Fourteenth guaranteed 343 Mo. 438; Kenyon, Constitution, I, and Article States United 245; 347 Mo. Taylor, S.W.2d 10, Missouri State Constitution.” Section Rasco, 802; supra; applicable The law is well-estab Rumfelt, 228 Mo. S.W. party calling “A a witness when lished. cases the evidence of these In each by affirmative evidence which surprised convic entirely circumstantial opposing party may cross-examine aids sus degree murder were first tions given show that he had that witness was a second the cases In none of tained. contrary statements to his testimo former given. In each murder instruction degree Gordon, ny.” State question the court considered case “The extent of cross-examina dis that the circumstances decided purpose on collateral matters for the tion only and an degree murder first closed largely is within the trial impeachment degree murder was on second instruction * * Cox, discretion court’s properly refused.” (Mo.1961). of the law Holland statement The examination, witness P. direct Ronald On Cuckovich, approved in State v. expressly testified as follows: Palermo (Mo.banc If John- “Q you money did see how much And court to mean that a trial was intended son Franco had with him in Cali- David a lesser homicide instruc- give fornia? case, it a “circumstantial-evidence” tion actually I did not see a certain “A The decision reached be overruled. no, amount, enough but he had for a may en Banc in Cuckovich not Court vacation. an written in a Divi- overruled Appellant’s “Q you assertion is do mean? By of this Court. that what sion merit. to a from I think 800 Anywhere “A dollars. thousand court next “the trial asserts this, object I will “MR. DUNCAN: Ew- allowing witnesses Baber and erred it, enough, Honor. If didn’t see your testify in that the state ing to court and object. I will It is nebulous. pretty it’s refuse said witnesses would knew that conclusion. calling for a protection of the Fifth testify under highly said refusal was “THE COURT: Sustained.” Amendment to the defense and denied prejudicial examination, the state was redirect cross-examination, right to all defendant given to show that Palermo had permitted Fifth, guaranteed under the which is police that he observed statement to the Amendments, Fourteenth United Sixth nineteen approximately “to have I, Constitution, and Article Section States person.” on his Under dollars cash hundred 18(a), Missouri Constitution.” Gordon, law announced not err. court did trial specific objection was not cross-examination, testi were asked Palermo questions when the the trial at he was at Don Wormack’s house given. preserved It is not for fied that answers called to tell him of Lang, 515 the time his mother at review. State appellate at which the automatic burglary examination, was stolen. On redirect permitted attempt to show

state STATE of Missouri ex rel. James M. police Palermo had told he was at CARRINGTON, Plaintiff, Grady’s Appel- house at the Michael time. attempt contends the state’s “did not lant matter.” We do not HUMAN, Jr., go a material be- F. William et al., Defendants, trial abused its discretion in court lieve Cox, supra. regard. the state did Appellant’s assertion Whitmore, Intervenor. James proper establish a foundation for appellate preserved is not impeachment 59912. No. Lang, supra. review. Supreme Court affirmed. judgment The En Banc. 21, 1976. Dec. HOLMAN,

MORGAN, HENLEY and FINCH, JJ., concur. Rehearing Denied Dec.

BARDGETT, J., dis- separate dissents in filed.

senting opinion

SEILER, J., and concurs in dissents BARDGETT, dissenting opinion

separate

J.

BARDGETT, (dissenting). Judge respectfully

I dissent. As demonstrated principal opinion, purely this is is, in my case and Johnson, controlled

opinion, (Mo.1974), which was followed in

S.W.2d Stapleton, (Mo. my concurring opinion See also Mudgett, cases, 1975). According

(Mo. banc to those

the court in the instant case was manslaughter and the failure

instruct so is reversible error.

do FOR REHEARING

ON MOTION

PER CURIAM: over- rehearing

Appellant’s motion

ruled. that where emphasizes

The Court sup are murder instructions

conventional pleadings and evidence and

ported be an automatic given, there must sub

are requirement manslaughter.

mission (see been in effect since March

has Use, 6.02). MAI-CR This case Notes tried to March

Case Details

Case Name: State v. Franco

Court Name: Supreme Court of Missouri

Date Published: Dec 13, 1976

Citation: 544 S.W.2d 533

Docket Number: 59623

Court Abbreviation: Mo.