Flowers v. State

776 S.W.2d 444, 1989 Mo. App. LEXIS 1247, 1989 WL 100019
CourtMissouri Court of Appeals
DecidedAugust 30, 1989
DocketNo. 16013
StatusPublished
Cited by6 cases

This text of 776 S.W.2d 444 (Flowers v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flowers v. State, 776 S.W.2d 444, 1989 Mo. App. LEXIS 1247, 1989 WL 100019 (Mo. Ct. App. 1989).

Opinion

HOLSTEIN, Chief Judge.

Movant Connie Lynn Flowers was convicted of first degree murder, § 559.005,1 and sentenced by the trial court to life imprisonment without parole for fifty years, § 559.011. The conviction was affirmed on appeal. State v. Flowers, 592 S.W.2d 167 (Mo. banc 1979).

On November 1, 1982, movant filed a motion for post-conviction relief under former Rule 27.26.2 But for the disqualification of one judge, the retirement of a second, the filing of a first and second amended motion for relief under Rule 27.26, and the filing of movant’s motion for partial summary judgment, the case languished until June 28,1988. That day an evidentia-ry hearing was held. On October 6, 1988, the trial court entered judgment denying movant’s motion for relief under Rule 27.26 and the motion for partial summary judgment. The trial judge made extensive findings of fact and conclusions of law.

[446]*446On appeal movant raises three points. She claims the trial court should have granted her motion for partial summary judgment and corrected her sentence of life imprisonment without parole for fifty years because the punishment exceeds the punishment provided by statute. The second point is that the evidence showed movant’s attorney in the underlying case (defense counsel) was ineffective in failing to investigate, interview and call certain alibi witnesses. Her third point claims that defense counsel was ineffective in (1) failing to object to jurisdictional defects in the complaint upon which the warrant for her arrest was based, (2) failing to present evidence to the jury regarding the credibility of the state’s informant, (3) failing to disqualify the trial judge, (4) allowing the admission of polygraph evidence, and (5) allowing the admission of unfounded expert testimony, and “other errors.”

On February 20,1977, the body of James Bundy was found in a ditch beside a gravel road. The victim had been shot three times through the head.

Movant was arrested on May 8, 1978, in California. She was questioned on three occasions. The first session was in Tulare County, California. On that occasion mov-ant denied any knowledge of the murder. During the second questioning session, she admitted her presence at the scene of the crime. At a third questioning session, movant admitted her participation in the crime. The statements were recorded on tape. Defense counsel was unsuccessful in his efforts to suppress her confession. At movant’s trial, portions of the tape recordings were played for the jury. That being the case, counsel’s backup strategy was a defense of alibi. The alibi evidence tended to support a defense claim that movant was in Florida when the crime was committed. The alibi witnesses were James and Vivian Brewer. The Brewers claimed they hired movant and Arvin Garrett, movant’s code-fendant and common law husband, to pick fruit on February 19 through February 23, 1977. Along with that strategy, the defense hired two physicians. They testified that movant’s personality was such that she could not have committed the violent act she had confessed to, and, therefore, the tape-recorded confessions were unworthy of belief. Other facts will be discussed as needed in addressing movant’s points.

The standard of review in a Rule 27.26 proceeding is “limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.” Jones v. State, 767 S.W.2d 41, 43 (Mo. banc 1989); Rule 27.26(j). The findings, conclusions, and judgment of the trial court are clearly erroneous only if, after a review of the entire record, this court is left with a definite and firm impression that a mistake has been made. Casey v. State, 769 S.W.2d 829, 832 (Mo.App.1989).

Movant’s first point claims her sentence exceeds the punishment provided by statute for her crime. To understand the argument under the first point requires a discussion of some of the turbulence in Missouri’s homicide statutes.

The date of the Bundy murder was February 20, 1977. Section 559.005, in effect at the time, provided as follows: “A person is guilty of capital murder if he unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of a human being.” The only punishment for that offense was death. § 559.009.3.

The legislature, anticipating the potential unconstitutionality of a mandatory death penalty, had enacted § 559.011 which provided that if capital murder, or the penalty for that crime, was declared unconstitutional, “all killings which would be capital murder ... shall be deemed to be murder in the first degree,” except the offender’s punishment was to be life imprisonment without eligibility for parole for fifty years. Another statute in effect at the time provided that an unlawful, but unpremeditated, killing committed in the perpetration of arson, rape, robbery, burglary or kidnapping was murder in the first degree. § 559.007.

On March 15, 1977, the Missouri Su- . preme Court held that the penalty provisions for capital murder failed to provide a constitutionally acceptable procedure for imposing the death penalty. State v. Duren, 547 S.W.2d 476, 480 (Mo. banc 1977). [447]*447The court went on to say that even though “capital” murder was a misnomer, there is no prohibition against that designation of the crime. Id. at 481. The contingency penalty provided for in § 559.011 was approved. Id.

Effective May 26, 1977, § 559.005 was repealed and § 565.001 was enacted. The latter statute, in essentially the same language as the former, defined “capital murder.” Section 559.007, defining “first degree murder” was also repealed and, with a little reorganization of the wording, reenacted as § 565.003. The mandatory death penalty provision, declared unconstitutional by Duren, was also repealed. The reenactment provided a procedure under which “capital murder” was made punishable by death or imprisonment for life without probation or parole for fifty years. § 565.008.1. The penalty for first degree murder, that is the unlawful but unpremeditated killing of a person during the perpetration of specified felonies, was made punishable by life imprisonment. § 565.008.2.

Movant was charged and tried in 1978. The information charged her with elements of the crime condemned in § 559.005. The verdict-directing instruction also required a finding of the elements of the same crime. See MAI-CR 6.02. The information alleged and the instruction required a finding that Bundy’s murder was premeditated and made no mention that the murder occurred during the perpetration of any other felony. The verdict and the court’s judgment and sentence all used the term “murder in the first degree” to describe movant’s offense. With that background, we return to movant’s argument.

Movant correctly states that there was no language in the 1977 revision authorizing life imprisonment without probation or parole for fifty years for the crime of first degree murder. She directs our attention to the judgment and sentence which states that she was found guilty of murder in the first degree.

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Bluebook (online)
776 S.W.2d 444, 1989 Mo. App. LEXIS 1247, 1989 WL 100019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flowers-v-state-moctapp-1989.