*1 Missouri, Respondent, STATE WOLFE,
Danny Appellant. R.
No. SC 81372. Missouri,
Supreme Court
En Banc.
Feb. 2000. Rehearing Denial of
As Modified on
March 2000. *4 Nixon, Gen., (Jay) Atty.
Jeremiah W. Chesser, Atty. Gen., Barbara K. Asst. Jef- respondent. ferson City, for BENTON, Judge. DUANE Danny Defendant R. Wolfe was convict- murders, first-degree ed of two two counts action, armed and one criminal count of first-degree robbery. He received two sentences, death and three terms of life has imprisonment. This Court exclusive Const., jurisdiction appeal. Mo. art. V, sec. 3. Affirmed.
I. review, accepts this Court On State, true all favorable to evidence including all favorable inferences from the *5 evidence, all disregards evidence and Grim, contrary. inferences to the 403, 1993); banc Dulany, 1989). This does not sit a thir Court as juror, super voting “guilty” teenth or Grim, charge. “not guilty” on 414. 19, 1997,
On February defendant went Camdenton, home of a co-worker bag and asked a there. Agreeing, to leave bag laun- placed co-worker dry staying room. Another man at the bag house in the looked saw what gray wig. looked like a or white That defendant went a bar in evening, Cox, Lake met Jessica intro- Ozark. He “Danny,” and played duced himself Afterward, they game pool with her. at the talked. sat bar and if Cox she was “into Defendant asked drugs.” yes. Defendant if She said asked him. drugs “get she could rid of’ some agreed. She closed, When the bar defendant and Cox left Defendant said that he pick-up. give get would a ride home and could her stopped by her the The two then drugs. Wafer, at a motel for B. Asst. Defend- defendant’s room Deborah Public er, for minutes. appellant. they go pulled driveway.
Defendant said that should into the ters’ house Camdenton. He drove them to the co- He then knocked on the front door. Mrs. house, door, worker’s where he retrieved the wearing Walters came what bag They left earlier. then returned to nightgown.” Defendant en- “looked like the motel. and came back out with tered the house They Mr. Walters. walked to a red Cad- Defendant told Cox would in front of the house. illac go have to “pick up to Greenview to some money,” but could not leave until 4:30 a.m. joined them at the Mr. Cox Cadillac. Cox asked defendant to take home. Walters invited Cox to test-drive it. De- replied Defendant that it would be worth going fendant asked Mr. Walters if he was stay. her wait. She decided along. replied Mr. Walters there was no
Defendant took some silver handcuffs appreciate reason to. said she would bag. why from the Cox asked he had it, to tell about the car. Mr. Walters then them. worry, Defendant said not to he got passenger the front seat. As Cox going pair wasn’t to use them on her. The drive, put car in jumped defendant into watched television and talked for about seat, the passenger saying, side back two hours. go, “Let’s Jo-Jo.” February Around 4:30 a.m. on toward Mr. Cox drove Greenview. Wal- two drove into Camdenton. Defendant ters car. Af- and defendant discussed the stopped at gas Handing station. over while, around, driving ter Cox turned $6, buy he told her to a pair jersey returning toward the Walters’ house. - gloves bought. which she Hearing a “loud swerved bang,” Cox They headed toward Greenview on glanced to see Mr. head fall over Walters’ Highway by the home of Leonard and coming forward with blood out of his mile, Lena Walters. After quarter about a mouth. Defendant Mr. had shot Walters *6 pulled road, gravel defendant into a turned in the back of the then saw head. Cox around, the truck parked facing and pull defendant what looked like a gun highway. It was about 5:15 a.m. away from Mr. Walters’ head. Defendant planned announced that he keep driving. Defendant directed Cox to Walters, rob the whom he described as patted pulled He down Mr. and Walters “loaded.” Defendant had been to the it, said, out Opening his wallet. he “This house before and said that the had Walters guy’s loaded.” looked over saw a Cox and a car for sale. He had that indicated he large amount of cash. would return girlfriend. with his Defen- dant instructed Cox to test-drive the car pulled driveway, As defen- Cox into minutes, with Mr. Walters for about 15 park dant told her to the car it had where behind, stay while he would handcuff Mrs. fully stopped, been earlier. Before the car Walters, and rob them. Defendant told jumped out straight defendant and walked him Cox to call “Sam” around the Walters to the house. He told Mrs. that Walters and to use “Jo-Jo” for herself. phone he needed to use the because Mr. had a Walters had heart attack. black, wearing shiny,
Defendant was parachute pants camouflage jacket, and house, Once in the defendant shot Mrs. changed which he had into at the motel. in a shotgun Walters the chest with while handcuffs, took out put He on the she in front of him. wound crouched This jersey and gloves, polished the handcuffs. did kill her. then stabbed Defendant gave pair gloves Defendant Cox a - side, on the left and Mrs. Walters once already in were the truck. - right times on the side while she four God, no, no, waiting begged,
After the truck for about two “Please no.” hours, defendant drove back to the Wal- fatal stab was to the heart. Mrs. Walters off, pur- defendant dropping Cox remaining con- After immediately,
did not die store, supply at 9:12 paint from a minutes. chased for another three scious invoice). to the (according a.m. bang,” “loud “a bunch Cox heard a kidnap- about the claims she lied Cox house, silence and then ruckus” from would story because her life ping Defendant left the ten minutes. for about if the truth. Cox told the danger she told safe, he loaded in carrying a which house least three other story to at kidnapping left, the truck. As Cox the back of story spread and became people. kill her. going asked if defendant was “talk the town.” he partner, so replied He she was to kill her. going was not week, a called local bartender Later that a man resem- fiancé. He said road, unloaded pulled Defendant off the in, and kidnapper had come bling Cox’s tools, safe, opened it some him attacked recognized someone had it, discarding some rummaged through was, fact, de- attacked him. The man pockets. in his stuffing others contents called, and Cox police fendant. The were truck and then climbed into the Defendant fiancé that she fabricated admitted to her he turned the truck away. Shortly, drove story. kidnapping around, his tools. and retrieved had her fiancé Cox then told subdivision, to a then drove Defendant two, one, murders maybe witnessed Defen- painter. he had where worked life. consulted for her She feared rid of the going get he was dant said with the attorney. Through negotiations house, from one getting key After gun. immu- received attorney, Cox prosecuting and left to another area defendant drove testimony. nity exchange for her or IB minutes. truck for about 10 hap- police what Cox detailed returned, painter’s was in he he When took them pened to the Walters. She black, nylon clothes. did not see left) (and rummaged where defendant wearing Defendant pants he was earlier. scene, police ex- Investigating the safe. gun into the he thrown the told Cox safe, change loose amined the and found lake. other contents (including quarters) and stopped by cigarette Defendant then them the area. She showed strewn about day. later that painting where he was store motel and truck. She defendant’s room *7 defendant said he testified that The owner up they picked identified the house where paint. get had to some go a photograph confirmed bag. She the subdivi- pointed out defendant. She store, cigarette defen- leaving After changed clothes. sion where defendant a amount of cash. large handed Cox dant if keep quiet; enough her He said was arrested, three defendant was When charged police, she would be she told in room. handcuffs were sets of silver murder; got if accessory or as his Miranda rights. At Defendant waived bail, killed. she would be interview, defendant beginning calm, po- As showing little emotion. at the dropped to be off Cox asked details, defendant be- Cox’s lice related There, fiancé called her be- hospital. Cox apprehensive. came nervous 9:30, she had been saying tween 8:30 where the subdivision caught, Police searched had been kidnapped, kidnapper storage In a changed clothes. truck defendant fíancé’s and it was all over. Cox’s area, pants, pair a of black broken, they discovered her to call her so he told pattern the same and tennis shoes with they friends testified friends. Two of the Walters’ 9:00, on the floors shoeprints from Cox around phone calls received truck, From defendant’s house. up. her asking pick them to Walters, as to aggravators and six Mr. gloves, pry and a pair jersey seized a Mrs. Walters. bar. motel, dumpster at defendant’s cartridge, II. retrieved a .25 caliber
police caliber with a misfire from .25 consistent judge circuit that the claims Defendant bag gun. dumpster Also in the were question the State wrongly allowed synthetic camouflage jacket and a with a Defen- immunity agreement. about beard,” bag containing two “wig or another implied to prosecutor that the argues dant rounds, ring three of .25 caliber boxes monitoring that he boxes, papers and various with defendant’s truth- testifying testimony, knew she was name on them. for her effectively vouched fully, and thus truthfulness. was shot with a .25 caliber Mr. Walters on Mr. gun. spent cartridge A was found examination, Cox testified During direct round on collar and a live Walters’ back “immunity” not know what that she did seat the Cadillac. back her attor- spoke first with was when she shambles, The Walters’ bedroom was immunity him ney, initially nor ask open, littering the with drawers items telling story. precondition as a floor, room, shotgun on the and a .22 transcript took 95 Cox’s direct examination laying bed. A live .25 rifle across the questions pages, of which three or four floor, near a cartridge lay on the kitchen immunity agree- immunity. The mention eight-inch Footprints, six- to fillet knife. in direct examina- ment was not mentioned dirt, the kitchen appeared dried also tion. body floor. Mrs. Walters’ was face down cross-examination, that it Cox noted On hallway, with cuts consistent attorney prose- who contacted the was her shotgun the fillet knife. She also had immunity for her. cutor and obtained to the wound chest. po- that when she talked Cox said testimony, the In addition to Cox’s lice, that she would not she understood Hileman, in the Cam- called Paul who was with a crime. charged County den Jail at the same time as defen- redirect, the immu- the State offered On dant. Hileman testified that defendant ac- nity agreement into evidence. Cox murders, him relat- bragged to about the giving her knowledged reading it before trial, At ing several details. the time statement, testifying preliminary first-degree prison Hileman was deposed. hearing, being prior had two property damage. Hileman burglary stealing, convictions of two objected counsel to introduction Defense convictions, prior forgery prior and two an earlier mo- agreement, renewing interference-with-custody convictions. tion to exclude evidence presented impeachment defense two for “truthful testi- agreement was State’s *8 against witnesses Hileman. responded that defense mony.” The State door, by inquiring opened had that also testified The local bartender claimed The State further agreement. murders, defen- about week before issue, mind was at that state of Cox’s hand- to sell him a .25 caliber dant offered agreement prove. tended to which the that about a week gun. He then testified murders, “sold” him a after the defendant countered that because Defense counsel quarters. full of loose bag specifically referenced agreement testimony,” hours, “truthful promise give jury Cox’s deliberating After jury, of the province It later re- it invaded guilty verdict. returned testi- further, sentences, improperly bolstered finding five turned two death mony. as to statutory aggravating circumstances objections,
The trial court Q: you any overruled the Did have doubt that was agreement, admitted the pub- allowed true? jury.
lication to the A: No. Cox then testified: Objection. DEFENSE COUNSEL: you op- PROSECUTOR: Have had an
portunity to read all agreement]? [BENCH of [the HELD] DISCUSSION Yes, COX: sir. Q: you And did read all of that before COURT: Overruled.
you signed it? Yes,
A: sir.
Q: you And did opportunity have an your
ask attorney any questions No, before A: I had no doubt. you signed it? Q: you any you Did have doubt that if Yes, lied, states, A: sir. as the letter the deal was off? Q: signing Prior to it and after having letter, I
read that A: had no doubt. any were there terms of that you letter which did not under- recross, On Cox stated that part as stand? deal, satisfy prosecutor. had to No, A: sir. acknowledged agreement stated that she could answer Q: Were there the same any terms of the immu- answer, question with the same nity agreement regardless you which did not under- many asked, of how times it was long stand? as she told the truth. No, A: sir. Q: any Were there terms the immu- Vouching
nity agreement you which did not take Although defense counsel never seriously? specifically objected “vouching” trial, No, A: sir. she did pre-trial renew a motion Q: signing After prior letter and - vouching. raised the issue of Vouching enforcement, speaking to law you did - “personal sometimes called vouching” oc have you doubt that would be sub- prosecutor curs implies when that he or ject to prosecution you if did not tell the she has facts that jury are not before the truth? Mease, for their consideration. State v. Yes, No, A: sir. you repeat sir. Can 1992), cert. that question? quite I didn’t under- denied 508 U.S. 113 S.Ct. stand it. L.Ed.2d 269 Honor, DEFENSE COUNSEL: Your That did not occur here. The I’m going object to continue to based on all immunity agree the facts about the improper bolstering. all, immunity ment. After agreement THE COURT: may Overruled. You only supports credibility the witness’ continue ... by showing an testify truthfully, interest to you signed PROSECUTOR: When impeaches credibility but also the witness’ you letter and before talked law en- by showing in testifying an interest favor forcement, you read the letter and in the ably government, regardless for the *9 - everyone letter has read it now and Drews, truth. United States v. 877 F.2d it, just you you’ll read and it states that (8th Cir.1989). 10, 12 By the end of Cox’s if prosecuted you don’t tell the truth? testimony, jury the could consider her A: credibility Correct. in light agreement. of the See
257
(Mo.
Bolstering
612,
Hanes,
618
v.
729 S.W.2d
State
App.1987).
at trial was
objection
specific
Improper bol
bolstering.”
“improper
invokes the Sixth Circuit’s
Defendant
state
an out-of-court
stering occurs when
Francis, 170
in
v.
United States.
opinion
dupli
solely to
is offered
of a witness
ment
Cir.1999).
(6th
There,
prose
the
F.3d 546
testimony.
trial
State
cate or corroborate
during opening statement
explained
cutor
320,
banc
Ramsey, 864 S.W.2d
v.
truthfully,
testified
if two witnesses
denied,
1078, 114 S.Ct.
1993),
511 U.S.
cert.
lighter sentences
recommend
she would
(1994). However, if
1664,
L.Ed.2d 380
jury
the
prosecutor
Id. The
told
for them.
offered for
statement
is
the out-of-court
depended
that her
recommendation
corroboration
other than
purposes
relevant
them.
Id.
personally
she
believed
whether
-
- such as rehabilitation
duplication
examination, the
During direct
at 551.
bolstering.
Id.
improper
there is no
in detail
questioned one witness
prosecutor
in
Cox
counsel cross-examined
Defense
plea agree
of the
negotiation
about
(for
in
at-
transcript pages)
detail
ma
ment,
agreement
that the
emphasizing
credibility. Four
her
tempt
impeach
be
only
prosecutor
terialized
after
against
witnesses testified
impeachment
court,
the witness.
Id. The Francis
lieved
community for
in the
reputation
however,
testimony
concluded that
truthfulness.
have
“harm
agreements might
been
attempt
was entitled
The State
only prosecutorial
if it
less error”
were
examination.
her on redirect
rehabilitate
n. 2.
in that case. Id. at 552
impropriety
not
agreement was
of the
The introduction
Kroh,
326,
915 F.2d
See United States v.
v.
bolstering. See United States
improper
banc).
(8th Cir.1990) (en
331-32
Cir.1993).
(8th
Willis,
F.2d
Here,
already
grant
had a full
Publication
subject
pros-
to the
immunity and was
pending
in a
complains
ecutor’s recommendation
Defendant also
statements,
mem
allowing
each
During opening
case.
trial court erred
mentioned,
copy
jury
view
only
pass-
once
ber of
prosecutor
of evidence
Jury examination
agreement.
immunity for
had “full
ing, that Cox
trial
of the
the sound discretion
is within
truthful testimo-
complete cooperation and
Corning Fiberg
Nugent v. Owens
court.
Moreover,
never elic-
ny.”
prosecutor
las,
(Mo.App.
Inc.,
925 S.W.2d
negotiation,
of the
or related
ited details
Alu
1996), citing Sparks v. Consolidated
belief
her account
personal
(Mo.
Company,
minum
not state
prosecutor
did
murders.
Roberts, 948
also
See
State
App.1984).
subject
his inde-
immunity was
that her
1997) (send
596-97
she was tell-
pendent judgment of whether
during deliberation
jury
ing exhibit
ing
truth.
court). An abuse
trial
discretion of
within
Bohannon,
trial court’s
only if the
like
exists
Nor is this case
of discretion
reason
clearly against
Bo- decision
person’s
(Mo.
815,
arrest. The trial court
1985),
did not
700 S.W.2d
817
banc
cert.
inquiry.
denied,
allow the
1119,
1980,
Defendant believes this
476 U.S.
106 S.Ct.
(1986) (bias
impeached
evidence would have
Cox’s L.Ed.2d 663
of accusing wit
credibility.
irrelevant);
Hedrick,
ness is never
State v.
823,
(or
(Mo.App.1990)
797 S.W.2d
col
Trial courts have discretion to de
lateral).
relevancy
evidence,
termine the
of
Second,
juvenile
incident is not evi
appellate courts will reverse that determi
possible
dence of a
testify
motive to
favor
only upon
nation
a showing of abuse of
State,
ably
arrest,
for the
past
based on
Shum,
discretion. State v.
866 S.W.2d
investigation, or charge. See State v. Sim
(Mo.
1993).
447, 457
banc
mons,
165,
(Mo.
944 S.W.2d
179-80
banc
An
party
adverse
may ask a
1997),
denied,
953,
cert.
522 U.S.
118 S.Ct.
convictions,
prior
witness about
criminal
(1997).
376,
2.
uncharged
The rules on
misconduct
e.g.
a defendant are different. See
*11
1992).
(Mo.
503,
The
banc
837 S.W.2d
IV.
remedy to
must
allevi-
trial
tailor
court
the trial court
Defendant asserts
Rule 25.16
defense.
Id.
ate harm the
prohibited
prosecutor
should have
not mandato-
permissive,
sanctions
makes
testimony with her
discussing
from
only
exists
ry.
An abuse of discretion
Id.
recess,
middle
during
overnight
an
in the
in funda-
if
of a sanction results
the denial
of her direct examination.
Rou-
unfairness to the defendant.
mental
may discuss testimo
Prosecutors
san,
ex-
843. Fundamental unfairness
overnight
ny
during
with their witnesses
likelihood that
ists if there
a reasonable
Rack, 318 S.W.2d
recesses. See State v.
affected the result of
the failure to disclose
Futo,
211,
(Mo.1958);
217-18
State
cf.
the trial. Id.
808,
(Mo.App.1996),
932 S.W.2d
814-15
occurred
No fundamental unfairness
denied,
1143,
1313,
117 S.Ct.
cert.
U.S.
overruled
properly
here.
trial court
The
(1997) (defendant’s right
137 L.Ed.2d
-
to exclude Hileman
defendant’s motion
during overnight
to consult with counsel
-
three months before trial
made about
recess). No error
here.
occurred
that he had
because defendant
stated
investigate.
time to
enough
V.
subsequent
made
Defendant also
two
Defendant maintains that
trial
continuance,
were de-
for
which
motions
have
court should
excluded Paul Hileman
agreed
trial court.
State
by
nied
as a witness for the
Hileman testi
State.
investigation, and
with the
defen-
assist
Jail,
County
fied that while
the Camden
object.
has not
dant did not
Defendant
him,
defendant confessed the murders to
any
shown that
relevant evidence would
in detail.
have
or admissible had
discovered
been
14, 1997,
April
requested
On
defendant
granted. The court did
continuances been
the State’s witness list and the substance
overruling
its discretion
these
abuse
oral
statement
defendant. motions.
1998,
January 13,
About
Hileman wrote
he
argues
Defendant
did
jail
describing
letter
sergeant,
defen-
trial.
prepare
have
time to
sufficient
dant’s confession.
Rule
Despite the State’s failure to follow
17,
later,
August
months
Seven
25.03(A)(2),
prejudice
no
resulted. Three
witness,
the State endorsed Hileman as a
prepare for
months was sufficient time to
informing defense counsel
defendant
testimony. See State
Cham
Hileman’s
September
confessed to Hileman. On
1994).
bers,
93, 100
banc
jail
the letter to the
State disclosed
Further,
only
although
defendant
sergeant
to defense counsel. On October
-
-
Hileman
weeks’ notice of the other
three
three
trial
19 about
weeks before
letters,
investigate
had two
he
months
other
writ-
State disclosed various
letters
Hileman’s en-
potential impeachment after
Hileman,
to im-
ten
which were used
and before disclosure
dorsement
peach him on
stand.
Hi-
impeached
That two witnesses
letters.
timely
that it did not
The State concedes
enough
there
time
shows that
leman
testimony.
disclose Hileman and
investigation.
Defendant
perform
25.03(A)(2).
clearly violated Rule
speculation as to other
nothing but
offered
Rousan,
State v.
See
time,
that,
he
more
evidence
with
relevant
denied,
1998),
U.S.
cert.
Likewise, during
produced.
have
could
2387,
Defendant contends the trial court wrongly compel refused to of disclosure marijuana Hileman mailed from inside (1) impeach material that would Hileman: County the Camden Jail to local the news- uncharged information on his crimes and officials, paper and attempt various (2) questionnaires investigation from an of expose to corruption. Highway Patrol County the Camden Jail. investigated, and defense counsel received investigation of copy the report. Howev-
Uncharged Crimes er, did copies defense counsel not receive of questionnaires Sergeant Breen cir- The trial court did not in forbid personnel to culated of the Jail. Defendant quiry into past Hileman’s See conduct. likely claims that questionnaires the con- Simmons, Joiner, at citing State v. tained or lead to would admissible evi- (Mo.App.1991). Im against inspecting dence After Hileman. peachment presented. evidence was Hile- camera, questionnaires in the the trial man, cross-examination, on to a admitted court to ex- request overruled defendant’s letters, variety implicating of some him amine them. drug use. provide Defendant this to moves Court Defendant asserts that he was entitled counsel, questionnaires the to defense or in to additional on all uncharged “information alternative, the to review to deter- them brought that could against crimes Hile- if they have mine should been disclosed at
man,” prove that Hileman had a bias (The object trial. State does not to this testify in exchange for State for not question- Court’s in review camera of the charged. being request This broad does naires.) not specify being what information is sought, “uncharged or which crimes” This Court reviews for discre- abuse trial court have ordered should disclosed. tion to determine if there is a reasonable likelihood that the denial the re- affected may request Defendant the tri sult of the trial. Id. This exam- Court has al to compel court disclosure of informa camera, questionnaires, ined witness, required tion on a not otherwise (or no likely evidence material finds lead 25.0 n . by If request Rule 25.03. Rule evidence). Simmons, to admissible See at reasonable, may court order n. 4. err in The trial court did not State to disclose the information. overruling defendant’s motion. Simmons, subject at 179. This decision is discretion, review abuse of and re VII. only if versible there is reasonable likeli claims the trial Defendant hood that denial affected the result publish abused court its discretion Id. trial. ing jury letters Hile- written compel The court’s refusal further people. man to various uncharged disclosure Hileman’s crimes publish did affect trial. the outcome of the The decision to evidence impeach Defense counsel Hile- was able is within discretion testimony Owens, Nugent man’s with evidence of his ex- trial 931. An court. at convictions, use, drug tensive to his only lies abuse discretion exists if the trial (and others), probation officer at- clearly against court’s decision was reason case, the State “vehe In this App.1994). injustice in an to defendant. and resulted the introduction of Roberts, mently oppose[d]” 597. affidavit. letter, acknowledged Hileman each letters, and their substance. Therefore, hearsay
number of on general ban into cross-examination, court them evi- The trial admitted applies. On evidence the record.” No purposes dence “for asked Cox defense counsel abuse of occurred. discretion friend: went and Q: you time that Before the VIII. Thursday, your spoke attorney trial court asserts that Defendant you you [the friend] did ever tell *13 by affidavit a should have admitted men Wal- with two when had been Cox, had told stating friend of were murdered? ters - including men not
her that she two No, A: ma’am. - murdered the Walters. defendant court. De- appear The friend did not at judge told that she had
fense counsel you between Q: [the friend] Did see friend, trying been to contact no Thursday time of the murders her in Defendant one had seen weeks. your attorney? talk you go and to when orally requested a continuance. The State No, ma’am. A: replied that could not find the also friend. The trial court a continu- denied Q: her at a convenience You didn’t see ance. gas a store or station?
Defense counsel then moved
intro-
No,
A:
ma’am.
duce
affidavit into evidence.
-
you
Q:
have
ever
Never talked
objected
opportu-
it never
because
had
to her
these murders?
talked
witness,
nity
question the
affi-
No,
A:
...
ma’am
subject
davit was
to cross-examination.
alleged
affidavit
that Cox
“Jiffy
Motion
Continuance
at a
spoken
Oral
about the murders
for
friend,
her to
Stop”
who advised
Continuance
is within the
claims that
go
police.
Defendant
of the trial court. State
sound discretion
prior
a
the affidavit contained
inconsistent
(Mo.
779,
985 S.W.2d
785
Thompson,
a
The foundation for
statement
Cox.
1999). The ruling will be reversed
banc
an inquiry
prior inconsistent statement
only
very strong showing
a
of abuse
upon
(1)
made the
whether she
the witness
Id.
discretion.
(2)
and,
the statement
whether
statement
24.10(b),
By
motion for continu-
Rule
Bowman,
10,
741 S.W.2d
is true. State v.
upon
ance based
an unavailable witness
(Mo.
denied,
1987),
U.S.
14
cert.
488
banc
grounds for
must show “reasonable
belief
(1988).
829,
83,
60
109 S.Ct.
102 L.Ed.2d
testimony of such
attendance or
Cox if she
defense counsel asked
While
procured
will be
within
reason-
witness
statement,
if
never asked
counsel
made
no
able time.” There was
evidence
“prior
inconsistent statement”
could
within a reason-
the friend
be located
proper
impeach
A
foundation for
true.
properly
The trial court
denied
able time.
not occur.
ment did
oral motion for continuance.
defendant’s
Moreover,
before
document
Exclusion of Affidavit
evidence,
it must meet
may
received
be
as
requirements, such
foundational
may
admitted
other
An affidavit
Hadlock v.
hearsay.
authentication and
parties. State
upon stipulation
both
Revenue,
335,
(Mo.
Zimmerman,
684,
Director
886 S.W.2d
(Mo.
1993). First,
banc
Morrow,
(Mo.
100,
because the friend State v.
968 S.W.2d
present
banc),
denied,
introduce or
896,
authenti-
cert.
525 U.S.
119 S.Ct.
statement,
cate the affidavit or
222,
(1998).
there
to cross-examination. op- There was no portunity Defendant claims the trial examine the court statement wrongly State, credibility. allowed the Logan, during guilt 344 Mo. (1) phase, to argue there was no evi The court did *14 dence that not abuse its Cox had been listening discretion in to a excluding the (2) police house,” scanner at the affidavit. “safe jury place should themselves in IX. position when considering how she “handled” points Defendant the situation. Both argues that the court were wrong- preserved. ly admitted ring evidence of three boxes and rings, found in dumpster at defen- dant’s motel. Defendant asserts Police Scanner at the House Safe nothing rings linked the or boxes to defen- Cox’s cross-examination included this dant or the Walters. exchange: Admission of evidence is evaluated DEFENSE COUNSEL: Was there a Roberts, abuse of discretion. at 596- scanner available at the safe house? ring 97. The boxes were found with other so, I yes. COX: believe
items in dumpster that were associated with the defendant and linked to the mur you DEFENSE COUNSEL: And were ders. able to investigation hear some of the that was going on?
If evidence is logically relevant to
issue,
a fact in
may
be admissible if its
COX: Yes.
probative value outweighs
prejudice.
its
Defense counsel
then
summarized
(Mo.banc),
Gray,
369,
887 S.W.2d
closing argument, “She listens to a scanner
denied,
1042,
rt.
514 U.S.
ce
is there and is
able
hear of the
1414,
(1995). Here,
S.Ct.
dence investigation.”
“some you it or are make run for you Do Second, prejudiced defendant not him, his agree to try appease going evi- prosecutor’s misstatement go police, take instructions house, going to the safe dence. Before your keep, quote-unquote, money story basic as trial Cox told the same ... mouth shut? defendant, crimes, the crime scene, and other related scenes. objected, improper per- as Defense counsel
Defendant frames the misstatement of the ob- judge overruled sonalization. (due violation evidence a constitutional jection. clause, right
process, confrontation
“you” does
The use of the word
defense,
justice
access
right to
present
necessarily
improper personali
mean
Missouri, right
through the courts of
to a
Richardson,
zation. State
cruel
sentencing,
reliable verdict
1996).
301,
prosecu
Chapman v.
punishment).
unusual
Under
“you”
special
the word
has no
tor’s use of
386 U.S.
87 S.Ct.
California,
consid
significance
argument
when the
is
(1967),
Improper Personalization Claim XI. contends that the State
Defendant improperly argument. In personalized the the trial Defendant asserts closing attacked argument, defense counsel court, during sentencing phase, improperly credibility, decision stressing 3-foot 4-foot into evidence a allowed scene, crime to flee and the defendant victims, “blowup” photographs of got concluding away that “she al by 11 inch photographs after 8½ and murder of Lena Leonard Walters.” claims ready introduced. Defendant been rebuttal, argued: jury’s the State blowup passions. inflamed the question Why big
And the is: didn’t responded: The State run? I think all us try Jessica And of Honor, Yes, intend Your the State does sitting in this comfortable court- here with these prejudice defendant protecting all these room with of officers reveal us, question. photographs probably photographs. we ask that These could Sure, conduct, run.. we know and now Why now the result of we’re didn’t of case. gone sentencing phase he was for ten minutes. this - have photographs of which blowups him, just look at You saw man - passed to the already admitted been just him you shoot that man saw me to make refer- jury. This will allow man in the back the head and he’s old my argument with during them in the ence to gun you’re out middle got tripod them on the without having to XIII.
interrupt my closing by passing it. Court determines whether: This (1) the death sentence was imposed under objection. The court overruled the the influence passion, prejudice, any or During closing argument, (2) the State re- factor; arbitrary other the evidence blowup, ferred to the I supports “And don’t the finding statutory show of a aggra circumstance; (3) you photo vating this gross you out. You’ve death sentence is excessive or actually it, disproportionate already seen Ibut don’t want to penalty imposed cases, similar have to pass it around everybody. But crime, considering the strength of the evi you’re when deciding what the appropriate dence, and the defendant. Section punishment Wolfe, is for you Mr. have to - 565.035.3(1) (3). did, remember what he what he left be- independent record, hind.” After review of the this Court finds the death sentences in this imposed case were not under the produce Gruesome crimes grue influence passion, prejudice, or oth- some, yet probative, photographs, and a arbitrary er factor. defendant may not escape brutality his own actions. State v. Feltrop, 803 This Court further determines that the 1, banc), S.W.2d supports cert. evidence statutory aggrava- denied 501 1262, ting case, 2918, circumstances. In this U.S. S.Ct. 115 L.Ed.2d found the (1991). following statutory aggravating (1)
circumstances as to Leonard Walters:
murder
engaged
committed while
in anoth-
relevance,
The issue is
which lies
(2)
murder;
er
murder
for pur-
committed
in the trial court’s discretion. State v.
pose of obtaining money
things
of mon-
Shaw,
banc),
(3)
value;
etary
murder committed during
denied,
cert.
459 U.S.
103 S.Ct.
(4)
first-degree robbery;
murder commit-
L.Ed.2d 188
Photographs may be
ted because of potential
status;
witness
used
the sentencing phase
capital
of a
(5)
defendant had one or more serious
case to establish the aggravating circum
assault-style criminal convictions. The fol-
Brooks,
stances. State v.
*16
lowing statutory
aggravating
circum-
(Mo. banc),
denied,
501
957,
cert.
524 U.S.
stances were found as to Lena Walters:
2379,
(1997);
118 S.Ct.
horrible and inhuman.
XII.
Finally, this Court determines
objects
Defendant
to the definition of
that the death sentences were not exces
“reasonable doubt” in MAI-CR3d 302.04
disproportionate
sive or
penalties
again rejects
and 313.30A. This Court
this
imposed
similar cases. The issue in
Harris,
argument. State v.
870 S.W.2d proportionality review is not
whether
(Mo.
798,
banc),
denied,
811
cert.
513 U.S.
similar case can be
found where the
953,
371,
(1994).
115
sentence,
S.Ct.
265
v.
person. State
than one
is excessive or dis
dered more
er the death sentence
(Mo.
Johnson,
banc), cert.
123
968 S.W.2d
proportionate
light
similar cases.
(Mo.
Parker,
denied,
935,
348,
908,
142
v.
119 S.Ct.
State
886
934
525 U.S.
S.W.2d
Clemons,
denied,
v.
1098,
(1998);
946
cert.
State
banc),
514
115
U.S.
L.Ed.2d 287
denied,
(Mo.
1827,
(1994);
State
cert.
banc),
522
in similar imposing cases the death penal WHITE, J., in opinion concurs of ty, and prior “the defendant” had no con WOLFF, J. case, victions. Id. 60. this there is WOLFF, Judge, dissenting. eyewitness, contrary Chaney’s, ex testimony Without the of Jessica Cox press reliance on eyewit the absence of an against there would be no ease Dannie Also, ness. Id. the defendant here has a Wolfe1 for the murders of Lena and Leon- criminal record: two of convictions second- of physical ard Walters. None evi- degree burglary, felony one conviction of dence killings. links Dannie Wolfe to these stealing, and one conviction of rob armed victims, Walters, of One Leonard bery. alive seen disinterested and reliable morning witness in the and the afternoon Defendant filed a “motion for examina- of day sup- on which Mr. Walters procedures tion and evaluation and posedly been murdered earlier methods utilized for the propor- Court’s morning. The central factual issue is the tionality review under section 565.035.” credibility of Cox. Jessica The trial court The State filed a motion to strike this improperly kept from the critical evi- motion. Both motions were taken with the calling question dence into Ms. Cox’s cred- ease, and are both now overruled. ibility. trial rulings effectively court’s precluded presenting Wolfe from a defense motion, Contrary to defendant’s him right and denied a fair trial. possibility There is a substantial proportionality this Court’s review is con did not I Wolfe commit these crimes. stitutional. Proportionality review is not therefore dissent. mandated, constitutionally Pulley v. Har ris, 465 U.S. 104 S.Ct. 79 L.Ed.2d Our Factual Review (1984), repeatedly and this Court has order highlight error .In Rousan, rejected identical claims. judge’s critical rulings, summary trial 1998). 854-55 necessary. facts principal is opin- Proportionality review is an additional only ion sets forth the facts that are con- safeguard against arbitrary capricious verdict, jury’s sistent with the giving due even-handed, sentencing promotes jury’s deference role. Because the rational, imposition consistent death very jury could well reach a different deci- Id. at sentences. 855. Missouri’s statute sion, informed, if adequately it were more is constitutional. Id. at 855. more complete summary of the record necessary to show that was preju- Wolfe Affirmed. trial rulings. diced court’s More-
over, a full review of the evidence is re- C.J., PRICE, LIMBAUGH, quired in this penalty death case under HOLSTEIN, JJ., COVINGTON “strength section 565.035 to assess concur. the evidence.”2 Perhaps 565.035.3(2) point 1. is a strength minor record consider the spells shows that Wolfe his first name Dan- determining evidence when whether *18 state, contrary spelling by to the used the appropriate. is death sentence nie— Dula counsel, principal opinion. and the 1989), ny, a banc is death case, penalty but was issue to there not an as Grim, 403, 413-414, 2. State v. strength of the evidence under section 1993),.cited by principal opin 565.035.3(2). specifically This Court also is proposition ion for the that this Court "does cases, directed, penalty by in death section super juror,” not sit as a thirteenth or a is not 565.035.7 to assess the "factual substantiation penalty death case should to and used cases, verdict.” In most the standard denigrate statutory duty our under section and if drug scene if was into her she
Facts yes, responded drugs. did She she afternoon, February Wednesday On if she high. then asked get did Wolfe she in to Bar Jessica Cox went Slick’s drugs selling in some interested would be Cox, who to have drinks. Ms. Lake Ozark yes. She again responded for him. She Bar, her Eddy’s at and a barmaid a home. needed ride that she told Wolfe Fair, fiancé, Allen a seasonal construction a ride give he would her told her that He worker, league in a on Wednes- pool were drugs. her the given he had home after friends, Fair two other day nights. and time, around closing near They left the bar Beard, in the Scotty and Brian also Gift 1:15 a.m. meeting pool league, were at Slick’s. Eldon, and four then drove to a bar in truck for They pickup drove in Wolfe’s all they playing pool, they finished after his motel room to 25 minutes to about 20 evening, Later in the
went back to Slick’s. motel, Inn.3 At the Williamsburg at go to since he had to Fair decided home and television they Cox said watched Ms. get morning. to the next Ms. Cox up work minutes After about 20 they talked. and Scotty bar with Gift stayed went to Camdenton to left the motel and Beard, 11:30 Brian who left bar friend, Young, Chris the home Wolfe’s p.m. midnight, Ms. left About Cox Slick’s there, bag a Wolfe had left pick up to Mona’s, At and walked over Mona’s Bar. “weed,” because he said contained which with a friend from work. played pool she get high. they wanted played and Then was introduced to Dannie Wolfe drove Jessica Cox and defendant, pool Dannie with the Wolfe. motel, about 2:30 a.m. arriving to the back time, Wolfe, age who was 46 at According po- to Wolfe’s statement self-employed painter worked as a under lice, stayed Wolfe in his motel Ms. Cox and name “ProPainter.” He has business In his state- night. room the rest of the stealing, a and burglary, criminal record ment, or say declined to whether Wolfe robbery runs armed from 1968 sex, although Cox had both he and Ms. for record shows convictions 1988—the a.m., according At 7:00 kissing. admit to 1968, felony in degree burglary second Fair, fiancé, Cox Allen Ms. Ms. degree in stealing over second $50 in pay phone Osage from a called him burglary in 1976 and and armed origin time call Beach area —the robbery in 1988. His last conviction on Fair’s caller ID. Ms. Cox were shown in a six-year prison 1988 resulted sentence. by kidnapped had told Fair that she been drug problem a for He has and alcohol man, hospital that she was at the he been attending which treatment tests, man had been arrested. and that the period he the time when met Ms. Cox the bar. upset Fair testified he told that his track was not her. He her being playing pool,
After introduced and up. Ms. pick he could not working over to the bar so Wolfe Ms. Cox went friend, Cox, eventually asked called another According talk. Ms. Wolfe correct, Williamsburg Throughout opinion the record principal is 3. used Ac- where, here, to as hotel motel. Inn is referred to determine as examination testimony, there cording to Ms. Cox’s prejudice in the trial court’s to Wolfe bedroom, room, living kitchen- hallway, rulings, whether this as well to determine staying appeared that Wolfe was ette and it supported sufficiently strong evi is verdict clothes and chil- there because there were sentence, justify a more dence death Williamsburg toys on the floor. dren’s complete required. review of the record evidence, register, admitted shows Inn into opinion section of this See discussion the unit for the that Dannie Wolfe had rented Review,” Independent headed "This Court's paid $450.00 for the February. He month of infra. previous a homeless residence was month. A shelter. *19 she murder, told the Mend that she had been she had witnessed a but did not kidnapped. This Mend not pick could her tell any specific him details. Fair did not Gift, up, Scotty pool but one of players, the details, any go ask for her told to an and Mend another would come and pick attorney police. or to the arrived, up. her Once she told them The bodies of Lena and Leonard Wal- kidnapped had and she been elaborat- Sunday, February ters were found on story: on her ed Ms. Cox said she had coroner, about noon. The Dr. Jun- asked this man for a ride home and that he gles, examined at the bodies the scene up passing ended the road to her home p.m. body around 1:00 Lena Walters’ was her D and took to his cabin on road. He inside the house. She had been shot with handcuffed her when she was in the car. shotgun and stabbed a number of times. Once in the cabin the kidnapper, whose Jungles, physician, Dr. who is a started “Frank,” name then up tied her with body with Lena Walters’ because the Further, loose fabric. she said she had temperature the house was more stable hurt getting her head out of the car and outside, than where Leonard Walters’ why the hospital did tests. She body was car. Dr. discovered his Jun- told her got away Mends that she and gles’ preliminary observation was the stole the man’s In at wallet. least one prior time death was 24 to 36 hours version of story, escaped the from Sunday afternoon, being with hours being up tied when “Frank” to get went maximum. more men to have with sex her. She said police already had apprehended the a guide determining As for time of description kidnapper, whose death, matched Jungles Dr. assessed the bodies’ of Dannie mortis, Wolfe. rigor Rigor mortis. according to testimony, sets two hours After she told her flaneé and others this death, so, after peaks at 18 hours or kidnapping story, story false became gradually body then leaves the 24 to 36 the talk the town. hours after death. Based on the status of Allen Fair that Greg Addington, said mortis, rigor Jungles’ Dr. judgment Fair, bartender at a Mend Slick’s and was that the Walters had for 24 been dead say called Fair to “kidnapper” that the had to 36 pathologist, hours. The forensic Dr. been in the bar. Someone had recognized Dix, did make determination as to him from description Ms. had Cox of death. After the adopted time state given began up. him Adding- beat theory that Dannie had mur- Wolfe ton stopped fight. gave Wolfe him couple early Thursday morning, dered proving name was Dannie identification both doctors testified that time “Frank,” Wolfe and not the name Ms. Cox death would not be inconsistent with given kidnapper. as that of her Ad- theory, Jungles’ though state’s Dr. clinical dington suspicious story Ms. Cox’s scene led him to observations esti- police hospital called the and the probably the time mate of death as no story check to see if her was true. The early morning. than Saturday earlier Cox, story According was false. to Ms. prob- Fair her story, Thursday, February confronted about the On Ms. Cox ably Addington while was still on an attorney the went see who called the Fair phone. testified the call from Ad- prosecuting attorney offering Ms. Cox’s dington Saturday night, on late story exchange immunity. while Cox, Ms. Cox said the call Friday prosecutor occurred late through Ms. at- evening. confronted Adding- torney, immunity agree- When entered into an news, briefly ton’s day.4 Ms. told her fiancé that ment that Two officers inter- rehearing, cuting attorney authority 4. In his motion for Wolfe for the has no under Mis- prose- grant immunity, citing first time raises contention that the law to souri our deci- *20 Ms. Cox the road and told gravel truck off attorney’s at the office. viewed Ms. Cox It planning couple. re- to rob the they officer testified that did not that was One he Ms. at that time. told Ms. Cox ceive details from Cox 5:15 a.m. Wolfe was about the where the safe was told officers the car for She her to test drive that he wanted took them to locations Ms. Cox said and man the old 10 or 15 minutes and take she and had been. Wolfe stay with the going and he was to with her use the name “Jo- He her to woman. told ato Ms. testified that she listened Cox him said that and to call “Sam.” Wolfe Jo” scanner, newspaper read the about police to the house earlier and told he had been murders, spoke with about the and officers girlfriend. with his them he would be back investigation. the She testified that her They the stayed on side road day story Saturday, March of her hours, slept part of two and Wolfe statement, had videotaped more elaborate he Ms. Cox statements; sleeping, While was time. two details than her earlier Mr. plan a to take said she concocted of was not recorded one her statements phone police. to to call erased the nearest and the other was recorded but Walters house, it. to to Wolfe go officer who had taken it was time When given pair “purple grayish had a of trial, At Ms. Cox testified as follows: already that were fuzzy gloves” to wear and returned to When she Dannie Wolfe (No gloves recov- the truck. such were Inn, motel, arriving his Williamsburg ered.) a.m., they told her that around 2:30 Wolfe they pick had to could wait while before home, to up Wolfe pulled When this up money some At Greenview. truck and went to the front got out of the Ms. Cox said she asked him to take point, and came to door. Both Mr. Mrs. Walters her home. He told her that she should door, put- nightgown in a he They it. wait because it would be worth (No ting strap one overalls. up continued talk and Wolfe ate. Wolfe scene.) at Wal- was found nightgown bag took handcuffs out of the that he car, and Ms. ters Wolfe walked earlier, he her not to picked up told got out the truck and went over to worry. point, changed At into some Wolfe start, Wolfe the car. car did so sweatshirt, nylon pants, black and a red jump-started it. Wolfe asked and Walters jacket. camouflage They left the motel going go if with Ms. Mr. Walters go about 4:30 a.m. to to Greenview. replied he drive. When Cox on test way, an Amoco stopped On the Wolfe any for him there reason buy station and asked Ms. Cox to sodas to go Walters go, encouraged Ms. Cox (There a pair jersey gloves.5 the car. He did. her to describe purchases.) no evidence of such Wolfe drive, she had the car in put When home and then drove to Walters’ saying, jumped into the back seat Wolfe it, indicating Ms. passed Cox that Jo-Jo,” simply, go, perhaps “Let’s home to rob. She was the he intended Ms. Cox said she was go.” “Let’s was familiar with home and Green- minutes, car total of about get there to passed view area because she features of Mr. discussed different home, Walters to her mother’s which she visited was not to recall parked his the car. She able couple of times a week. Wolfe by allegedly offering McKelvey, "an inducement rel. Conduct sion in State ex Munn 1987). and, law,” prohibited by It 768-769 if to a witness that is possible so, that defense trial counsel seems judge have inter- the trial should whether immunity agreement wished to use the objection. vened even absent Cox, cross-examine Ms. and thus failure may Obviously, object strategic. have been occupa- glove many used in 5. A kind work well, issue this Court has not reached the tions. agreement immunity violated of whether the 4-3.4(b) the Rules of Professional Rule *21 specifics the any about interior nor of the Ozarks. He went down storage to a area the features of car. key. did not have the get He went to key the a few houses down from the man As was heading she back toward the who him job. had hired for a painting house, bang, Ms. Cox heard a loud looked This man testified that Wolfe did by come over pulling and saw Wolfe what looked key and get and they the that had coffee gun like a from the back of Walters’ head. together for 15 or 20 minutes. Walters leaned and a forward “bunch of blood” came out of mouth. Ms. Cox his Cox, According to Ms. Wolfe came back said that then Wolfe leaned forward over to the in about truck five or six minutes. the front and patting seat was Mr. Walters key, After he got the he went back to the wallet, looking down for his which he gone shed and an was additional ten min- Cox, According said, found. to Ms. Wolfe utes, Ms. changed Cox said. He had into guy’s “this loaded.” body When Walters’ his painting clothes. He her also told that found, wallet was the front of (No gun he had thrown into the lake. overalls without in it. cash recovered.) gun was they residence, When returned to the They then drove back to to Camdenton a Wolfe told Ms. put Cox to the car in the cigarette supposed that store he was to spot same originally had been paint. At point, they one Ms. Cox testified parked. As she parking but before arrived at the store around 9:00 a.m. Wolfe the car stopped moving, jumped Wolfe out going told her he was to tell owner of the car and went straight into the house pick up paint he had to and that he knocking. without went She back to could then take her home. There was truck, Wolfe’s rolled the window down a testimony pick up paint that Wolfe did and couple of inches a cigarette. and smoked the invoice documents at the time 9:12 a.m. waiting, While she heard a “ruckus” and a store, After out got cigarette Wolfe “loud bang.” She did hear anything Ms. Cox said he Osage for ten minutes. drove toward Wolfe came out of the safe, Beach carrying gave house a and her put which he Wolfe told her $540. money truck. As driving away, were should keep mouth planned her, asked if Wolfe to kill shut and he and she if she killed went to would responded that she was his partner. police. He told her that he going go out of town a of weeks couple Wolfe drove down a little farther from California.6 home, stopped Walters and took the safe down into the According woods. to Ms. dropped Cox asked to be off at the testimony, Ms. trial opened Wolfe hospital she him because did not want the safe with a crowbar and screwdriver. know lived. where she She said she ar- open, put Once he the contents in his hospital rived around 8:30 9:00 pockets, pushed then and kicked the safe a.m. She said she called her fiancé from hill. got down the He back into the truck the hospital contrary around 9:30 a.m.— away, forgotten drove but had his his that it testimony was 7:00 a.m.—and tools and drove back to get them. him told had kidnapped been
Wolfe police then drove to a subdivision that the area officers were done with her known Port as Valero Lake of and she go could home. tickets,
6. go Liberty, Dannie Wolfe did pay to California. Missouri to court days that followed his encounter with Ms. girlfriend returned to Lake Ozark. His decid- Cox, Cox, Ms. unlike Wolfe was able to tell ed not as she to move Lake Ozark had police his whereabouts. He finished his brought originally planned, so Wolfe rent- painting Thursday payment on and received a early ed truck a refund back received check, moving rented truck and drove to some of the rental fee. pick up City girlfriend, Kansas drove to testified, Morgan by his car. so standing days discovery after the Some nursing report and bodies, and the ambulance but before Jessica Cox Walters’ supported his testi- Cox, facility’s sign-in logs attorney, according an went to Ms. Thursday room- date. Another mony executed a former affidavit market, mate, witness, that she meat told former roommate local the owner man to murder of a late in the seeing been witness the Walters recalled 16, Thursday and that Cox had been or Fri- February Greenview Ms. week *22 individuals, and with one named Brian the seeing two Wal- day, could not exclude but The the one Eric. affidavit other named Wednesday. on ters and also stated that Ms. Cox said that she links the evidence physical None of gone the men house steal two the the scene of these murders. At Wolfe to $20,000 money, a large amount of either murders, a .25 caliber police the recovered $50,000, and that the two men were still neck and casing on Mr. Walters’ shell Ms. home. former roommate’s area, in the cartridge a live back shoulder Ms. further states that she told affidavit car, cartridge by a live seat and go police that she to the needed to refrigerator in home. There were two get and to the men out of her house. house, linoleum in the footprints found on by affidavit the de- This was obtained expended 12 shell found gauge shotgun trial, prior to and the affiant was fense bedroom, shotgun, two gauge in the a subpoenaed testimony for at trial as shells, knife, shotgun and a fillet which witness, ap- last defense’s but she did not Mrs. Walters apparently was used stab a pear. request The defense’s brief shot before or after was with either continuance to locate the witness was de- apparently that was owned shotgun making nied. Ms. Cox denied these state- tissue, There was the Walters. some precluded ments and the defense from was blood, hands, hair in Mrs. Walters’ and using the affidavit for impeachment. in the and hair was also taken from fiber car. Wolfe’s. Monday, None matched February day On after discovered, hearing were after bodies Law sets of officers seized three silver killings, of the disin- news Walters’ a handcuffs, handcuffs, a key a and witness, Morgan, po- Robert told terested room; pry bar from Wolfe’s motel lice he a that was friend of Leonard Wal- toolbox, jersey pair seized a of brown his Thursday, ters saw on and Walters twice hairbrush, crowbar, and gloves, a a floor 20, 1997, February the day Ms. Cox said From the mats from his truck. unlocked Morgan was Walters murdered. recalled Valero, storage at Port officers communal Thursday coffee on having with Walters shoes, and a size white tennis recovered in a morning Morgan coffee where shop a jersey gloves found outside on pair way hospital on to see stopped in Port Va- rock. In a condominium shed his also it was Morgan wife. testified that lero, a red hooded officers recovered known well in the area that Greenview pants. and From sweatshirt black wealthy was carried a lot of Walters and Inn, dumpster Williamsburg police at the cash. thirty a box .25 caliber car- recovered dump- day morning tridges, he had a live round front On the same ster, box, Walters, February bag a camou- Thursday, gray lock with coffee with man, jacket, a and a check with Morgan flage wig, and another torn saw Walters skin, “Ferry,” papers car at the name notes and other standing with dark them, bag af- on a black home in the afternoon. That with Wolfe’s name Walters’ .22 ammu- ternoon, containing two boxes of caliber he followed an ambulance (a from the .25 nursing his to a nition caliber different transporting was wife Walters), and that killed Mr. way and home Thurs- caliber bullet facility, (these rings in them day ring noticed Walters three boxes afternoon he rings and boxes were not shown to be the acteristics that could be found matching property), Walters’ piece and a of black print and the shoes that were seized hair was cartridge found box. from storage the communal area at Port Valero. There were similar
By class charac- account, Jessica Cox’s and from the scene, examination teristics between the shoes photos seized and the there print scene, lot of blood. Ms. Cox at the testified that class characteristics Walters, Wolfe after shot Mr. he reached secondary are to individual characteristics around from the back get seat to Walters’ companies because shoe often use the overalls, wallet from the front of his Moreover, design. same sole the weather that there was blood all over the front of early morning February hours of the overalls that Mr. Walters wore. Mrs. drizzly, cold, rainy, yet the shoes Walters had been stabbed four five muddy were seized were not did times and had been shotgun. shot with a have cleaned. shoes that *23 Yet, significantly, 10; there was no blood on were seized size were Dannie Wolfe any of the clothing that Ms. Cox said wears size 8. Wolfe wearing was he when committed safe, As the to which in was recovered bloody these murders —none on the cam- woods, the an expert that noted the tool ouflage jacket reportedly in found the marks on the safe would not have come dumpster, pants nor the black and shoes pry from the bar or bar crow that be- sheds, found in the nor on the sweatshirt Rather, longed to Wolfe. the marks were recovered at Port Valero. screwdriver, consistent a a word that There were several strands of hair found was testimony added Ms. Cox’s between house, at different in locations—at the the of the time her deposition statement and car, and in dumpster. the of None the and the time of trial. In her videotaped hairs matched that of Dannie Wolfe. The statement, Ms. sitting Cox describes in the hair in found one of the cartridge boxes scene, truck “they” at the and then carried did not match or of Wolfe’s either the the out of put safe the house it in the
victims’. truck. Her testimony trial that Dan- was lifted, Fingerprints were but did not nie Wolfe carried the safe out himself match Wolfe’s. it in put truck. the The size Nor his were there fibers found weight the of safe do not specifically ap- clothing that were identified from as the pear record, in except the prose- or, specifically, crime scene from the Wal- argument cutor tells the in final ters’ car. court, bring state did not the safe to gloves The officers recovered law big. Photographs because it was too from Wolfe’s truck in and on the rock Port the safe show it to be the size about hair, fiber, Valero did not have gunpowder single-drawer cabinet. filing or blood on them. A expert firearms could say not cartridges whether the While Wolfe County recovered was Camden jail, from the from dumpster jailed who, were the same lot he was with Paul Hileman as the cartridges .25 caliber 30, 1997, found as early as December wrote crime scene. county jailer letter indicating that Wolfe had confessed Hileman. There gelatin
A
mold was made of the shoe
are a number of such
over the
letters
prints found at the scene. An expert testi-
months,
trial,
leading up
but Hileman
vinyl
fied that
print
fragmen-
was so
was
August
not disclosed as witness until
tary and
partial
was difficult to
1998. There is some indication that when
determine a starting point, thus she could
pleaded
not
which
Hileman
guilty
January
determine
toe
heel or
print.
arrangement
There were no
there
an
involving
individual char-
his
theory
that she
prosecution’s
More-
testimony against Dannie Wolfe.7
being
and others
over,
lied to her fiancé
late
in Au-
even after the
disclosure
testified,
because,
she
she
kidnapped
turn
gust
prosecution
did
because
[Allen Fair]
afraid to tell
“was
shortly
until
Hileman’s letters
before
over
because
anybody
to tell
was afraid
[she]
trial,
At
defense counsel used
trial.
However,
life.”
[her]
was scared
[she]
orally
by indi-
impeach
letters
Hileman
motel
goes
woman
to a
engaged
an
when
testifying
Wolfe
cating
against
that he was
has
met in a
just
of a man
room
whom
jail.
Hileman’s
get
in order
out
spends
night
company,
bar and
were
into evidence but the
letters
admitted
activity
explanation for the woman’s
some
let-
trial court
refused to allow the
judge
needed,
her
may be
lest
flaneé draw
jury.8
ters to be
Hileman
displayed
as to
did
conclusion
what
obvious
jail
Dayton,
also asked Phil
who was
And,
he is
kidnapping
there.
when
Wolfe,
with Hileman and
to corroborate
Wednesday
finking
exposed,
story
confession,
Hileman’s story about Wolfe’s
mur-
overnight companion to Walters
according Dayton’s testimony.
purpose.
ders serves the same
Impeachment
of Jessica Cox
was how
jury did
hear
What
lied to
readily
It is difficult to doubt that
Ms. Cox has
law enforce-
Jessica
companion
accomplice
past,
mur-
in the
how her
was a
in the
ment authorities
Walters,
pattern
previ-
Mr.
regardless
testimony
ders of
and Mrs.
current
fits
*24
occurred,
may
prior
of when
murders
lies. One
occasion excluded
those
have
ous
had,
morning
on the
of
trial court was that Ms. Cox
some
early
whether
the
13,
20,
February
day
evening,
years previously,
age
that
the
ten
at
12 or
sto-
later
day,
acci-
Friday,
day,
stepfather’s
next
or even
her
truck and had an
the next
len
Cox,
Saturday.
for
After
the
thing,
Ms.
knew dent.
the accident she called
one
where the
police
reported
safe was located.
and
that
she had been
jail
allegations against the
[I]t
7. Paul Hileman testified before the
that
staff....
(the
pending
prosecutor’s)
the
did not
deals
instructions that
he
receive
on his
his
suspended
charges
exchange
testimony against
be
until further notice from
in
for his
case
However,
a witness
his office.” Reference to whether
pretrial
Dannie
motion
Wolfe.
a
polygraph
did or did
take a
is inadmissi-
not
to exclude
as a
to the
Hileman
witness due
Biddle,
ble,
(Mo.
violation,
banc
State v.
the accident.
on
Isa,
Based
Ms. Cox’s
(Mo.
false See State v.
S.W.2d
banc
report an individual was arrested
1993);
Kirk,
and
State
A second lie deposi- is recounted tion of the witness for truth veracity. tion, where Ms. acknowledged lying Williams, 337 Mo. law enforcement going authorities about being a man’s motel raped, story later recanted. trial Wolfe’s counsel did Though trial granted courts are discre lie, try impeach this view tion in determining scope of cross- of the trial ruling excluding court’s examination, without limits discretion is incident, first an attempt probably such As lawlessness. the court in Summers would have been futile. concluded, discretion cannot be used “to Missouri, may insulate error arising witnesses be im- from undue restric peached by right tion showing their as to bad character cross-examination veracity, for truth and relevant this character material matters.” may by specific be shown S.W.2d nothing say acts miscon- 73. It adds veracity. duct as to truth and too prior See John these lies are remote-that matter the jury MissouRi section to decide when deter O’BRien, Law of Evidence (3d ed.1996) cases). 5-7 (discussing mining weight what Spe- give them. Williams, cifically, prior false report (Mo.App. to law en- *25 1996). authorities forcement is relevant on Prior of reports the instances false to and, police thus, issue of Ms. the are credibility. certainly As the relevant Williams, in proper subjects court said are State v. for cross-examination. Williams, 1 (Mo.App.1973): “If See 492 she cannot trusted S.W.2d at 5-6. Cross- report authorities, to make a truthful to examination on matters relevant to wit jury may reasonably credibility the only right that ness’s is not infer she afford evidence, by cannot be ed our common of trusted on the witness stand.” law but is guaranteed by 492 Similarly, at 6. in the of S.W.2d confrontation clause Summers, 506 67 article VI the (Mo.App.1974), S.W.3d of United States Constitu Alaska, the court tion. Davis v. affecting noted that “matters the See 415 U.S. (1974); credibility 94 39 De always of are S.Ct. L.Ed.2d 347 witnesses relevant Arsdall, laware v. 106 particularly material so when the Van U.S. S.Ct. Be testimony state’s case rests on the of L.Ed.2d self- 73; cause law cases afford accomplices.” confessed Id. at see Missouri’s common Wigmore sought by also the cross-examination in 3A sections 982 Wolfe on Evidence (Chadbourn instance, 1970); necessary this it is not reach revision cf. 608(b). the R. confrontation issue. Fed. Evid prior lying Both instances in principal opinion of are rele- The section III dis- vant, and, they by prior because are admitted cusses impeachment by showing of acts, the witness in testimony, sworn do bad which from the kind of differs not proof. impeachment sought principal call extrinsic Trial courts The here. are given determining opinion addressing pri- discretion the focuses on law case cross-examination, witness, scope principally e.g., charge of so or bad of a of acts also linked Terry.” Dayton second-degree v. Lock crime with murder handgun. hart, (Mo.1974), a .25 caliber Terry Smith to rather pre- Testimony of Barbara Reeder was impeach than on case law that establishes proof; in an offer of by the defense by for truth sented showing ment character bad witness, Ms. was acquainted who veracity specific through evidence Smith, Cox placed Jessica Terry Cox and untruthfulness, in the false prior acts Smith near company Terry in the Williams, report to authorities com- these murders were same time that prior 6. If acts had S.W.2d at Ms. Cox’s mitted. or the prostitution, involved commission act, they a violent would not be allowed Terry apparent- All references Smith they do on the because not bear issue of ly by ruling, excluded trial court’s were truth veracity. character for O’BRien, prosecutor’s argument with the consistent supra, Thus authorities section 5-7. law general that “the that sort opinion are principal discussed in the cor suggested in that to be appears evidence
rect, apply but do not current case. nonadmissible, is, is that it is this motion suggest not allowable for defendant prior The exclusion of Ms. Cox’s lies di- did without some someone else certainly this char- prejudicial. Without being rect evidence of that correct. well background, jury acter could con- words, can’t float out a red you other story kidnapping clude that her was false alternative theories herring, proposed fear simply occasioned of defendant the midst of a trial without direct evidence impeach- proper Dannie With the Wolfe. murder.” else committed this someone ment, might conclude she is added). (emphasis inclined to tell such lies even to authorities situation, testified, in a questioned when she is difficult such as Dayton Smith; present explanation Terry is unclear instance when record doing is needed as to she when as whether this was due court’s what Reeder did stayed previous ruling. out all Barbara night with Dannie Wolfe. be- jury, presumably testify before the Rulings Denied Trial Court’s exclusionary ruling. cause of court’s Right Wolfe Present attempt present other The defense’s Defense through subpoena of a theory its its Cox, affi- roommate of Ms. whose frankly state concedes former 25.03(A)(2) above, davit, prosecutor Rule as noted avers that Ms. violated *26 of delay disclosing company to seven month in Paul told that she was in the six who Hileman and in two men other than Dannie Wolfe as a witness the even later couple. former of written Hileman. murdered Walters The disclosure letters appear pursuant did to The late disclosure of the letters did lead roommate any trial denied jail subpoena, Phil a who and the court Dayton, to man was purpose locating for of investiga- After continuance Wolfe and Hileman. its trial, ruled tion, correctly The trial court days two before defense counsel witness. for affidavit could not be used pursue a continuance to what it moved for matter of a con- “Terry impeachment. While the Dayton learned from a —that the trial court's discre- planning to tinuance is within Smith” had been rob Wal- Reece, tion, join 505 S.W.2d Dayton to State couple ters had asked (Mo.1974), em- the roommate matter does Dayton ultimately was un- in the effort. supportable had a planned robbery, phasize that the defense participate to in the able this that others had committed theory the Jackson because he confined crime, denying In jail, Dayton not Dannie Wolfe. County burglar also testi- may consider fied, “I’m continuance the trial court of not a proof, an offer will be robber, the likelihood that witness participate I so wouldn’t Oliver, found. State v. trial jury S.W.2d The American search for 1978). truth, ceremony banc But where the not a to mat- confirm official case, important, ter is so in this truth. on The limitations seems cross-examina- tion inherently preclusion to and the of a deny unreasonable even an substantial theory proper defense overnight for an thwarted search opportunity continuance for the truth. A trial grant- new should be find the witness and enforce the subpoe- ed. na. It was later learned at Wolfe’s hear-
ing for a new trial that the roommate’s Independent This Court’s Review
family knew her whereabouts at the time of Wolfe’s trial. cases, penalty death section 565.035 calls this Court make a of review the right The of a defendant to avail himself record, whole of independent findings and all defenses is well established judge jury, and conclusions protected. and constitutionally State v. assess, matters, other among “the Carothers, (Mo.App. 748 S.W.2d strength evidence.” Section Const, 1987); I, 18(a). art. Mo. section 565.035.3(3). Chaney, 967 S.W.2d innocence, To theory utilize a defense no 1998). matter unlikely theory, how one must “ only show that ‘the most favorable If there was strong con evidence that Wolfe murders, supports penal- struction of evidence committed these the death it.’” Carothers, ty at 491 (citing appropriate would be under the law and Kinard, (Mo.1952)). facts of crimes. these These were brutal, Here, bloody thoroughly despicable Wolfe evidence to support couple murders of an theory elderly else rob them. responsible someone A careful review of the record in this the murders case of Walters. Under leaves considerable doubt as to whether or rulings, the trial court’s Wolfe was not not Dannie Wolfe committed these mur- permitted present theory.9 this ders. Dannie Wolfe was convicted of the mur- The largely state’s case rests on the ders of Lena and Leonard Walters without testimony story of Ms. Her has nu- Cox. any physical linking evidence him to these flaws, merous is refuted as to the time of crimes. He convicted on the testimo- death, by any and is unsupported physical ny Cox, of Jessica after the trial court linking evidence to these Wolfe murders. impeaching excluded relevant evidence. jailhouse That story leaves the confession precluded hearing also was from Hileman, told whose testimony Paul suggest persons evidence to other proves say only anything that he would than Wolfe committed these murders. get prosecution’s out prison. late legal These warrant a errors new trial. disclosure of and even later dis- Hileman venue, from Jurors were chosen another letters, closure of his conceded to be viola- jurors presumably get rules, unbiased who charitably tions of our can most *27 had not heard media reports extensive of construed as a reluctance to use this wit- the of official version these crimes. But especial- ness at all. This should be Court the rulings ly testimony discussed herein show that reluctant rely to this to Wolfe did not a fair trial. affirm a receive sentence of death. However, right present
9. Wolfe’s brief raises the denial of to that continu a defense. Dayton testimony ance both as to the and as right is so that it should be fundamental witness, to the former roommate who failed by way plain analysis reached of error even if appear "points testify. to to The briefs relied points fairly it into the cannot be read raised specifically on” do not assert that the trial Moon, in Wolfe's brief. 602 See excluding rulings Terry court’s references to 828, 1980). (Mo.App. Smith constituted a denial of the defendant's now, aside, the evi- Court, (putting in conviction for Chaney, split, In a this 4-3 but, a new upon that would warrant dentiary rulings affirmed a murder conviction evidence, trial). assessing strength of the set propor- the death under the aside sentence evidence, just A all of the review of statute, section tionality review 565.085. verdict, favorable to evidence dissenting at 60. If the three constitutionally as required should be
judges Covington,
Robertson
and
—
of
The Unit
process
matter of
law.10
due
there
correct that
was insuf-
White —were
interprets
Supreme
ed
Court
States
conviction,
evidence
ficient
to sustain
of the 14tt Amendment
process
due
clause
may wrongly imprisoned
defendant
be
require
punitive
a review when
to
such
wrongly
he will
executed.
at least
not be
damages
against
assessed
a defendant.
are
Chaney,
physical
In
was
there
evidence
Oberg, 512
Co. Ltd. v.
See Honda Motor
linking to the victim at the
defendant
2331,
415,
L.Ed.2d 336
114 S.Ct.
U.S.
occurred,
the murder
time
evidence
(1994)
and BMW North America
defendant,
as
concealment
well as other
1589,
Gore,
517 U.S.
S.Ct.
majority
circumstantial evidence that the
example,
Oberg,
L.Ed.2d 809
for
support
sufficient
the verdict.
found
post-verdict determination that there was
But,
notes,
principal opinion
as the
there
support
jury’s
evidence
verdict
eyewitness,
was no
unlike this case where
satisfy
pro
due
held to
insufficient
be
principal opinion
affirms a
sentence
“judicial
cess and that
review
story.
death on the basis of
Jessica
required procedural
amount
is a
awarded”
If there is difference between this case-
2331.
safeguard.
ordering may execution of those who guilty.
not be
By examining in- only the evidence and verdict,
ferences favorable to the the ma-
jority willing our bet honor of
system word of witness who has jailhouse
trouble with the truth and a
snitch. I am unwilling gam- take that
ble. 565.035 requires independent
Section A
review. review of the record leaves
substantial doubt guilt. as to Wolfe’s To
vote to affirm the sentence death on the
strength this is simply record indefensi-
ble.
Conclusion granted
Dannie Wolfe should a new not,
trial. If at least his death sentence
should be set aside under section 565.035
because likelihood otherwise he
will be executed for crimes he did
commit. GREEN, al., Appellants,
Calton C. et DISTRICT, R-III
LEBANON SCHOOL al., Respondents.
et al., King, Appellants,
Liston et County
Morgan District, R-II School al., Respondents.
et
Nos. SC SC 81746. Missouri,
Supreme Court of
En Banc.
March 2000.
Rehearing April Denied 2000.