State v. Grebing

787 S.W.2d 877, 1990 Mo. App. LEXIS 583, 1990 WL 43553
CourtMissouri Court of Appeals
DecidedApril 17, 1990
DocketNo. WD 40984
StatusPublished
Cited by8 cases

This text of 787 S.W.2d 877 (State v. Grebing) 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
State v. Grebing, 787 S.W.2d 877, 1990 Mo. App. LEXIS 583, 1990 WL 43553 (Mo. Ct. App. 1990).

Opinion

FENNER, Judge.

Stuart C. Grebing, in a consolidated appeal, challenges his convictions for first degree murder and kidnapping and the denial of his Rule 29.15 motion alleging ineffective assistance of counsel.

The evidence adduced at trial and viewed in the light most favorable to the verdict is as follows: On July 8, 1987, Grebing and his girlfriend, Sally Catron, went to a house in Jefferson City belonging to Wilma Hedrick. Hedrick’s residence was known as a party house as many people who visited the residence used drugs, including Grebing, Sally Catron, Don Cox, Wilma Hedrick and the victim, John Allen. John Allen was a frequent visitor at the Hedrick residence and was said to be the boyfriend of Wilma Hedrick. Other members of the group were of the impression that John Allen was taking money from Hedrick and was over-injecting her with drugs.

When Grebing and Catron arrived at the Hedrick residence, in the early afternoon of July 8, 1987, it was determined that an ounce of cocaine was missing. At this time Allen was asleep in his car which was parked in the Hedrick driveway. Ms. Hed-rick was asleep in the upstairs of her home and her son, Vance, was asleep downstairs. Grebing told Catron that he was going to try to get money and drugs from Allen that allegedly had been stolen from Ms. Hed-rick. Grebing asked Vance Hedrick if he wanted to help get Wilma’s money and Vance said he did not. Grebing asked [879]*879Vance if he wanted to “waste” Allen and Vance responded in the negative, but said, “Why don’t you go ask Don”, referring to Don Cox. Cox agreed to help Grebing get Wilman Hedrick’s money and “scare” John Allen. Cox said he would drive the car.

Grebing retrieved a weapon from the trunk of his car. Grebing and Cox awoke John Allen, forced Allen from his car by pointing a gun to his head and made Allen get into the back seat of Wilma Hedrick’s car. Grebing, who was holding the gun, got into the back seat with Allen. The three men left and later Grebing and Cox returned without Allen.

When Cox and Grebing returned, about an hour later, Sally Catron asked as to the whereabouts of Allen. Cox initially responded “dead”, but then said, “No, we just shot him in the foot.” Cox also told Vance Hedrick that they had shot Allen in the foot. Grebing later said to Sally Ca-tron that he didn’t want to talk about it and to shut up about it.

Grebing and Cox then went out to Allen’s car to search for the money or cocaine which was missing. They took Allen’s car away and the car was later found on Highway 34 south of Jefferson City.

Wilma Hedrick looked through Allen’s belongings in the house. Sally Catron and Grebing took some items that belonged to Allen and threw them in a trash can at a park. A few days later Grebing put his gun in the trunk of Catron’s car. Catron and Grebing spent a few days at various person’s homes. The two then returned to Grebing’s apartment where the police arrested Grebing.

On July 11, 1987, John Allen’s body was found lying in tall weeds in an isolated area of Cole County. When Allen was discovered, his front pockets had been turned inside out. Following an autopsy, it was determined that Allen died of a gunshot wound to the head. He had been dead for at least 36 to 48 hours before the body was found. Bullet fragments recovered from the body were identified as having been fired from a Smith and Wesson .44 Magnum revolver.

Following Grebing’s arrest, the police search of his car revealed two speedloaders and .44 Magnum semi-jacketed hollow point ammunition. The police investigation also turned up 15 to 20 boxes of empty shell casings in Grebing’s closet at his apartment. Grebing’s gun, recovered from Sally Catron’s car, was a Smith and Wesson .44 Magnum revolver.

Grebing did not present any evidence at trial. Following closing arguments by the state and defense counsel, the case was submitted to the jury which returned verdicts of guilty of first degree murder and kidnapping. The jury assessed punishment at life imprisonment without the possibility of probation or parole for the murder charge and fifteen years’ imprisonment for kidnapping. Grebing’s first two points on appeal challenge these convictions.

In point I, Grebing alleges that the trial court erred in allowing Sally Catron and Vance Hedrick to testify, over objection, to hearsay statements made by Don Cox, a third party defendant, who was not available to testify at trial. Donald Cox, a co-defendant, was tried separately. Greb-ing claims that admission of the hearsay statements about his participation in the homicide violated the rule against hearsay evidence as well as his right to confront witnesses against him, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. This is so, Grebing complains, because the state presented no independent evidence to establish the existence of a conspiracy which would have provided an exception to the hearsay rule.

The complained of testimony of Catron and Vance Hedrick regards what Don Cox told Catron and Vance when they returned to the Hedrick residence without Allen. As previously stated, when Catron asked where Allen was, Cox responded initially by saying “dead” but then said, “No, we just shot him in the foot.” Cox also told Vance Hedrick that they had shot Allen in the foot.

The statement of a conspirator is admissible against another under the co-conspira[880]*880tor exception to the hearsay rule. State v. Pizzella, 723 S.W.2d 384, 389 (Mo. banc 1987). A conspiracy may be established through circumstantial evidence. Id. The appearance of ‘acting in concert’ can provide sufficient circumstantial evidence of the existence of a conspiracy so as to allow for the application of the co-conspirator exception to the hearsay rule. Id. at 389 (citations omitted). In order for the state to establish that the out of court statements of a co-conspirator are admissible, independent evidence of the conspiracy must be presented to show that the declar-ant made the statement in furtherance of the conspiracy and while the unlawful purpose continues to exist. State v. Leisure, 772 S.W.2d 674, 681 (Mo.App.1989), cert. denied, — U.S. -, 110 S.Ct. 724, 107 L.Ed.2d 743 (1990). When a conspiracy continues for any purpose, such as the concealing of a crime, or taking measures to defeat prosecution, the declarations of a co-conspirator are admissible. State v. Clevenger, 733 S.W.2d 782, 784-85 (Mo.App.1987).

The record reveals that a conspiracy existed between Grebing and Cox. The men discussed recovering money and drugs from Allen by scaring him. Cox agreed to drive the car. Both men forced Allen out of his car at gunpoint and made him get into the back seat of Wilma Hedrick’s car. Grebing got into the back seat with Allen and held a gun to Allen’s head while Cox drove the car away.

When the men returned without Allen, Cox initially responded that Allen was “dead”, but then explained Allen was shot in the foot. The subsequent explanation by Cox to Catron and Vance Hedrick concerning Allen’s whereabouts represents an attempt to conceal the actual crime. In addition, the unlawful purpose continued after Cox’s statements were made as both men worked to dispose of Allen’s possessions.

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Bluebook (online)
787 S.W.2d 877, 1990 Mo. App. LEXIS 583, 1990 WL 43553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grebing-moctapp-1990.