State v. Taylor

WELLIVER, Judge,

dissenting.

I respectfully dissent.

When a murder is committed in a locked room and there is evidence that at least one other outside person had a key to the apartment, and, when there was within 24 to 48 hours a burglary of the murder premises without forced entry, and, when the person having the other key was a close relative (cousin) of the state’s principal witness, there is no doubt that such evidence is relevant in determining who could have committed the murder. This is especially true when in the state’s closing argument, the prosecutor, in arguing that there had been no forced entry said, “have you heard anything from the defense about a key?”

Retrial of this case is a small price to pay for maintaining the integrity of “fair trial.” Rather than taking this case for the obvious reason of changing the result of the court of appeals opinion,¹ this Court should be commending our court of appeals for the courage it displayed in standing up for fair trial in face of the current swing of the pendulum of public opinion in the direction of getting tougher on crime.

APPENDIX A

“Appeal from a conviction for murder in the second degree. Defendant was sentenced to a term of thirty years imprisonment. We reverse and remand.

Defendant was charged by indictment with one count of capital murder for the stabbing death of his wife sometime between the late night and early morning hours of June 29 and 30, 1983. The jury returned a verdict of guilty on the lesser included offense of murder in the second degree. Defendant was sentenced to thirty years imprisonment as a persistent offender. The conviction is based upon circumstantial evidence.

Viewed in the light most favorable to the verdict, the following facts were adduced at trial: Sometime between approximately 10:30 p.m. and 2:30 a.m. on June 29 and 30, 1983, defendant’s wife was stabbed to death in the bedroom she shared with defendant. Her body was found nude, wrapped in a quilt, lying on the floor between the bed and a wall. Earlier, on the evening of June 29, 1983, the victim and defendant were on the front porch of their apartment house in St. Louis, playing cards with their daughter, defendant’s mother and other family members. The house contained two apartments which shared a common entry. Everyone left at approximately 10:40 p.m.

At approximately 2:41 a.m., defendant placed a call to the police. He asked the police to come to his home since someone had come through the bedroom window and stabbed his wife. He said it looked like she had been stabbed all over.

When the police arrived, defendant spoke with an officer. Defendant appeared nervous. He told the officer he had been sleeping in the living room, walked into the bedroom and found his wife. He then asked the officer to go into the house to see if his wife still had her rings on her finger. He seemed more concerned about the rings than his wife’s condition.

A second officer questioned the tenant in the apartment above defendant’s apartment. She had spoken with defendant and the others on the porch earlier that evening. She left the house about 8:00 p.m. and returned at 11:00 p.m. When she returned no one was out front, and all was quiet. She went up to her apartment and talked on the phone until 2:00 a.m. She then went to sleep and was awakened by the police. When told defendant’s wife was dead, she responded, “One day I knew he was going to kill her.” This belief was based on numerous fights she had overheard between defendant and his wife. The walls were so thin she could almost hear everything. She had seen defendant’s wife with bruises and black eyes. That night the upstairs tenant had heard nothing from defendant’s apartment.

An investigation of the scene revealed there had been no forced entry. Victim’s body was nude, wrapped in a quilt, and lying on the floor between the bed and the wall. A screen in a window above the body had been cut from the inside. Some blood was on the screen where it had been cut. The dirt on the ledge outside the window was undisturbed. No foot prints were on the ground outside the window. A small amount of dried, diluted blood was found on the edge of the bathtub. A police officer later seized a knife from a kitchen drawer.

After investigation of the scene was completed, defendant was advised he was a suspect and was taken to the homicide office. There he made a statement to police. In his statement he said he had been playing cards with his wife and other family members from about 8:00 p.m. to 10:00 p.m. At 10:00 p.m. or 10:15 p.m., his wife went to bed and he went into the living room, where he fell asleep with the radio playing. Sometime after 2:00 a.m. he woke up, went into the bedroom and started to undress, when he saw his wife on the floor.

Defendant then took his daughter to a neighbor’s house and told him his wife had been stabbed. The police asked how he knew she had been stabbed. He said he heard no shots, so he knew she must have been stabbed. He also saw a hole in her right shoulder. He was able to see because the room was partially lit by a mercury vapor light outside. At trial a police officer testified he was unable to see the body when he stood in the bedroom with the lights off.

Defendant described his relationship with his wife. They had separated previously but were back together and had gotten along beautifully. In response to statements concerning beating his wife, defendant said he had beaten her and would later go to bed with her. He stated she would not mention her beatings to her friends at work because she kept her business at home. The arguments centered around his unemployment. His wife repeatedly told him to move back with his mother. Defendant stated he did not touch his wife on the night in question. However, an analysis of nail scrapings taken from him indicated the presence of blood. The quantity was insufficient to type.

Defendant subsequently made a written statement and tape recorded statement. The content was substantially the same as given during the first, oral statement. However, he stated the door to the apartment was locked when he went to sleep in the living room. He also mentioned he was wearing cut-off bib overalls and had been wearing these all evening. The upstairs tenant, however, testified he had been wearing gym shorts and later was wearing cut-off bib overalls.

On July 1, 1983, a police officer informed defendant a warrant had been issued against him for capital murder. Defendant began talking, crying and trembling. He stated he had been in the living room, went to the bedroom where his wife was lying on the bed awake. Crying more and trembling, he said, “I can’t say it. I can’t say that I killed her.” The officer asked defendant to tell him what happened, the size of the knife and so forth. Defendant started to show the size of the knife, then dropped his hands and said he didn’t want to say anything else. He wanted an attorney. Defendant did not testify at trial.

Defendant asserts in his first point state failed to make a submissible case because state’s evidence was circumstantial and state presented no motive for the killing. Further, defendant cooperated fully with police and denied involvement in the crime. The facts outlined above certainly reveal motive. Assuming they do not, motive is not an element of the crime, and proof of it is not essential to sustain a conviction. State v. Abbott, 654 S.W.2d 260, 268 (Mo.App.1983). While the evidence was sufficient for submissibility, the state’s case against defendant was not a strong case.

Defendant properly complains of the exclusion of evidence of a subsequent burglary at victim’s home. State’s case consisted entirely of circumstantial evidence. Part of that evidence was there was no forced entry to the Taylor apartment on the night wife was murdered. Evidence of a subsequent burglary was offered to show the existence of a key to the Taylor apartment. There was no forced entry at the time of the burglary, which occurred shortly after the victim was killed. Evidence of the subsequent burglary should have been admitted.

Defendant’s presence in his apartment with no evidence of forced entry and the screen cut from the inside was essential to the state’s case against him. Defendant had told police before he went to sleep in the living room on the night of the murder, he had locked the only door to the apartment. He also told police he had to unlock the door before taking his daughter to a neighbor.

Evidence of illegal entrance without forcible entry into the same apartment within 24 to 48 hours after the murder was excluded at trial. “As a general rule, evidence explaining evidence previously introduced, or showing that the inference arising or sought to be drawn therefrom is not warranted, is admissible.” State v. Ford, 639 S.W.2d 573, 576 (Mo.1982). This rule is especially applicable where the accused seeks to explain incriminating evidence introduced by the state. Id.

In the state’s closing argument, the prosecutor, arguing there was no forced entry, remarked “have you heard anything from the defense about a key?” Considering the nature of state’s evidence regarding defendant’s commission of the crime, it is impossible to conclude with any degree of certainty defendant was not prejudiced by the exclusion of evidence of a subsequent burglary on the premises.

Defendant’s final point concerns the admission into evidence of a knife found in a kitchen drawer of the Taylor apartment some hours after the stabbing and a photograph of a plastic silverware tray in a kitchen drawer showing knives, forks and spoons. There was no blood on the knife and no way to determine whether this knife was used to kill victim. While this evidence may not be prejudicial in other fact situations, considering the nature of state’s evidence in this case, we believe these exhibits should not have been admitted. See State v. Merritt, 460 S.W.2d 591 (Mo.1970).

The case is reversed and remanded for new trial.”

1 . See Appendix A.