July 21, 1986
STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
SHIRLEY ELIZABETH ALLEN, DEFENDANT-APPELLANT
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY,
MISSOURI Honorable Weldon W. Moore, Judge
Motion for Rehearing Overruled, Transfer Denied
August 13, 1986.
Maus, J., James H. Keet, Sr. J., and Dorman L.
Steelman, Special Judge, concur.
The opinion of the court was delivered by: Prewitt
JAMES K. PREWITT, Chief Judge
Defendant was charged with capital murder in St.
Charles County. She was accused of killing her husband, Lloyd Allen,
"by poisoning him with ethylene glycol between March, 1982, and
November 1, 1982". Venue was changed to Phelps County. Following jury
trial defendant was convicted and sentenced to life imprisonment
without eligibility for probation or parole until she had served fifty
years. Defendant appeals.
Defendant's first point states that the trial court
erred in calling, at the state's request, Norma Hawkins, the
defendant's daughter, as a court's witness, "thus permitting her, in
effect, to be cross-examined by the state and impeached by the state".
Defendant's point states that the court's calling the witness was
erroneous, "for the reasons that (a) the state did not, as a
predicate, satisfactorily show why it could not vouch for the
credibility of the witness, and (b) the trial court's use of
discretion to call a court's witness is limited to those situations
where otherwise a miscarriage of Justice would result, and it was not,
and has not been, shown that would be the case."
In State v. Davis,
566 S.W.2d 437 (Mo. banc 1978), the
authority of a trial court to call a court's witness was discussed.
The per curiam opinion approved that procedure, subject to certain
limitations. Two Judges fully concurred in the opinion, and two
Dissenters apparently concurred in the portion of the opinion
regarding the calling of court's witnesses, but Dissented from the
portion of the opinion which concluded that the conviction should be
reversed. Because a majority of the Judges agreed with the portion of
the opinion on court witnesses, we conclude that Davis is precedential
authority on that issue. Its reasoning on court's witnesses was
followed in State v. Swingler,
632 S.W.2d 267, 271 (Mo.App. 1982).
Davis states, 566 S.W.2d at 448:
Based upon well-recognized authorities, we believe
that (1) the trial court has discretion in a criminal case to call a
witness as its own, (2) the practice should be sparingly used, since
it is not a desirable one, (3) the practice should be restricted to
cases where otherwise there may be a miscarriage of Justice and (4)
before a witness is called by the court a proper foundation be laid
which would consist of the reasons why the party desiring the witness
to testify cannot vouch for his veracity and a showing that the
testimony relates to the issues in the cause.
Defendant and Lloyd Allen were married on September
25, 1981. There was evidence that Norma Hawkins, a daughter of
defendant by a previous marriage, had initially told authorities
shortly after Lloyd Allen's death, that defendant had murdered her
husband. Norma Hawkins said that she had seen her mother mix
antifreeze with beer and give it to Lloyd Allen. Ethylene glycol is an
ingredient found in antifreeze and an autopsy established that
ethylene glycol was the cause of Lloyd Allen's death.
When interviewed by law enforcement personnel,
Norma Hawkins said that on several occasions she saw defendant give
Lloyd Allen antifreeze in soft drinks and in small containers of
"Nyquil". She stated that defendant had been doing this at least two
months prior to Lloyd Allen's death. She testified as a witness for
the state at a preliminary hearing held on November 22, 1982.
On June 7, 1983, defendant's counsel took Norma
Hawkins' deposition. There, she testified she had not witnessed any
such incidents, but that her testimony regarding Lloyd Allen's
poisoning by her mother had been based on what she had been told by
her sister, Paula. A jailer stated that Norma Hawkins had visited
defendant in jail on at least four occasions from April through June
1983 and had received money from defendant. On July 22, 1983, a
detective interviewed Norma Hawkins and she stated she had lied at the
deposition because during a visit with her mother in jail, defendant
had threatened to kill her if she did not change her story.
Previous to the commencement of trial, the state
filed a motion asking the court to call Norma Hawkins as a witness. On
January 25, 1984, the trial court held a hearing on the motion.
Following the hearing, the trial Judge noted that the court should be
careful in calling a court's witness, but stated that he would sustain
the state's motion and call Norma Hawkins as a witness "for the reason
that the witness has given contradictory statements and contradictory
testimony; for the reason that the witness is the daughter of the
defendant; that the witness is the step-daughter of the deceased; and
that for some period of time prior to the death of the deceased, did
live in the home; and that there could be a possible miscarriage of
Justice if this witness were not called as a Court's witness; and do
not believe under the circumstances that the State could vouch for the
credibility of this witness."
Jury trial commenced on April 23, 1984. According
to the record, the jurors were unaware that Norma Hawkins was called
as a witness by the court. When she was called, no objection was then
made. Although we tend to agree with the state that because no
objection was made, this contention is not preserved for our review,
see State v. Freeman,
667 S.W.2d 443, 447 (Mo.App. 1984), State
659 S.W.2d 233, 235 (Mo.App. 1983),
because of its significance in determining if defendant received a
fair trial, we nevertheless review this point.
The state contends that it could not vouch for
Norma Hawkins' credibility because of the conflicting stories she had
given. Because of the changes in her testimony and her relationship to
the defendant, we agree that it was reasonable for the state to
believe that it could not vouch for Norma Hawkins' credibility.
Had she not testified, a miscarriage of Justice
might have resulted. Before defendant was charged, Norma Hawkins
contacted a police detective and asked him to come by the house where
she, the defendant, and the decedent had lived. She told the officer
that she had "the substance that Shirley -- that Mom has been giving
to Lloyd." The officer stated that he went there and received a wine
bottle which contained antifreeze. Although there was other evidence
of the poisoning from her sister Paula, Norma Hawkins' testimony
regarding the wine bottle and her testimony corroborating that of her
sister, if not presented, might have created a miscarriage of Justice.
We find no abuse of the trial court's discretion in calling Norma
Hawkins as a court's witness. This point is denied.
Defendant contends in her second point that the
trial court erred in allowing the state to ask a question of defendant
regarding State Board of Nursing records. During cross examination of
defendant the following occurred:
Q You stated you are a registered nurse?
Q When did you become a registered nurse?
A In 1971.
Q Under what name?
A Under a name of Goude.
Q Do you know a Darla Nichols?
A Darla Nichols?
Q Of the State Board of Nursing.
Q If she said she checked the records --
MR. KUELKER: -- I object, Judge.
THE COURT: He may ask the question.
Q If she said she checked the State Board of
Nursing records under the name --
MR. KUELKER: -- Judge, I'd object to some
hypothetical person that no one knows and isn't here if she says
something he's testifying to it --
THE COURT: I overruled it, he may ask the question.
Q If Darla Nichols said that she checked the
records of the State Board of Nursing under that name and some of your
other married names and could not find any record that you were a
registered nurse, would she be mistaken about that?
MR. KUELKER: I object to the Conclusion.
THE COURT: I do not know whether that witness is
going to testify or not. I do not know if that witness may be called
A Pardon me?
Q Would she be mistaken about that?
A Could be, yes.
Defendant's point expands upon the trial objection.
The point is set out below. The reference to Darla Nichols was an
apparent attempt by the state to have the jury believe that Darla
Nichols had checked the records of the State Board of Nursing and
could not find any record that defendant was a registered nurse.
Neither Darla Nichols nor anyone else from the State Board of Nursing
testified regarding whether defendant was a registered nurse. The
question is improper as it is an obvious attempt to put hearsay before
the jury. Whether defendant had an opinion regarding whether Darla
Nichols was mistaken would also be irrelevant. However, we see no
prejudice to the defendant in the particulars now claimed.
The jury was instructed that it must not assume as
true any fact because it is included or suggested by question, and
there is no indication in the record that the search of the records of
the Board of Nursing by Darla Nichols, if there was such, was
thereafter referred to by the state. The answer and the instructions
given prevented any prejudice to defendant. Cf. State v. Butler,
549 S.W.2d 578, 580-581 (Mo.App. 1977).
In defendant's remaining point she contends that
the trial court erred in permitting the state to elicit from
defendant's sister, Clara Watt, that she had allowed Paula Hawkins to
talk with the prosecuting attorney only after he had agreed to waive
the death penalty. Defendant acknowledges that this contention was not
preserved in her motion for new trial and asks us to review it as
"plain error". See Rules 29.11(d), 29.12(b), 30.20. Based on this
contention, we find no error, plain or otherwise.
Paula Hawkins was called as a witness by the state.
Apparently, Paula had initially refused to testify against her mother.
During her direct examination, without objection, and also during
cross-examination by defendant's attorney, Paula Hawkins was asked why
she changed her mind and testified against her mother. Paula Hawkins
said she did so because her mother and others had accused her and her
niece, Tracy, of poisoning Lloyd Allen.
Paula Hawkins' credibility was questioned by
defendant, and fear that defendant might get the death penalty may
explain why she initially was reluctant to talk to law enforcement
authorities, but changed her mind when the death penalty was waived.
After Lloyd Allen died, Paula Hawkins was living with Clara Watt.
Paula may have been influenced by Clara Watt not wanting her to
testify against her mother while her mother was subject to the death
penalty. It was reasonable for the jury to consider this in assessing
Paula Hawkins' credibility.
"Generally, anything 'having a legitimate tendency
to throw light on the accuracy, truthfulness, and sincerity of a
witness, including the surrounding facts and circumstances, is proper
to be shown and considered in determining the credit to be accorded'
the testimony of a witness." Roberts v. Emerson Electric Manufacturing
362 S.W.2d 579, 584 (Mo. 1962). There was
no error in explaining the delay in Paula Hawkins' cooperating with
the law enforcement authorities. Defendant's third point is denied.
The judgment is affirmed.
Maus, J., James H. Keet, Sr. J., and Dorman L.
Steelman, Special Judge, concur.
COURT OF APPEALS OF MISSOURI,
SOUTHERN DISTRICT, DIVISION TWO
July 18, 1995
SHIRLEY ELIZABETH ALLEN,
STATE OF MISSOURI, RESPONDENT-RESPONDENT.
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY.
Honorable Jon S. Hutcheson, Judge, Honorable Douglas E. Long, Jr.,
Shrum, C.j., Crow and Parrish, JJ. Concurring.
In State v. Allen,
714 S.W.2d 195 (Mo.App. 1986), we
affirmed the capital murder conviction of the movant Shirley Elizabeth
Allen and her sentence to life imprisonment without eligibility for
probation or parole for 50 years.
On December 28, 1987, Movant filed a pro se motion
for postconviction relief pursuant to Rule 27.26 (Repealed). Appointed
counsel filed an amended motion, and the court conducted an
evidentiary hearing on November 11, 1990. Judge Hutcheson denied
Movant relief in a December 18, 1990, order that included extensive
findings and Conclusions.
On two subsequent occasions, Judge Long vacated and
reinstated Judge Hutcheson's order, thereby allowing Movant this
appeal. See Flowers v. State,
618 S.W.2d 655 (Mo.banc 1981); Evans v.
782 S.W.2d 402 (Mo.App. 1989).
In Point I, Movant contends the "motion court"
erred in denying her relief because "extensive pretrial publicity
prejudiced the venire panel against her and prevented her from
selecting a fair and impartial jury."
Although she assigns error to the motion court, the
basis of Movant's complaint is an allegation of trial court error.
Assertions of trial court error that allege constitutional violations
are not cognizable in a postconviction relief proceeding unless
exceptional circumstances are shown that justify not raising the
constitutional grounds on direct appeal. State v. Clark,
859 S.W.2d 782, 789 (Mo.App. 1993).
Movant points to nothing in the record and, indeed, makes no argument,
to demonstrate exceptional circumstances that justify her not raising
the issue of prejudicial pretrial publicity in her direct appeal. We
reject Point I.
In Point II, Movant complains her trial counsel was
ineffective because "he failed to request a change of venue to the
other side of the state from St. Charles to avoid the adverse
publicity . . . ." Movant was charged in St. Charles County in
November 1982. Venue was changed twice, first to Marion County and
then to Phelps County, where the trial was conducted in late April
1984. In her argument, Movant asserts there was a "reasonable
likelihood that there would have been much less publicity" about her
case in Kansas City than there was in Phelps County.
Included among Judge Hutcheson's findings and
Conclusions were these:
"3(a) . . . In considering the responses of all
jurors selected to serve on the jury, to all of the questions posed
during voir dire, the Court finds that movant has failed to establish
that the jury selected to hear this case was unfair or that it was not
impartial. Neither has movant shown that those jurors were tainted by
pretrial publicity. All of the jurors selected indicated that they
could follow the instructions of the Court. Those jurors whose
responses might have initially suggested some possible grounds for
further inquiry were fully rehabilitated through subsequent
questioning, including questioning by the trial Judge.
"6. Ground 5 of movant's pro se motion alleges
ineffective assistance of counsel for failing to change venue to 'the
other side' of the state. . . . The court notes that movant has failed
to show any prejudice. Testimony of both prosecutor and trial counsel
indicated that publicity surrounding this case was statewide and had
even received nationwide notoriety. There is no evidence to suggest
that moving the case to 'the other side of the state' would have
significantly diminished the pre-trial publicity. Jurors' voir dire
responses indicated a willingness on the part of jurors to be fair and
to base their verdict solely on the evidence presented in court. . . .
There is also no evidence that movant was prejudiced by being tried in
To establish ineffective assistance of counsel, a
movant must prove his attorney failed to exercise the customary skill
and diligence that a reasonably competent attorney would employ under
similar circumstances and that his defense was thereby prejudiced.
Richardson v. State,
719 S.W.2d 912, 915 (Mo.App. 1986). A
court can evaluate an ineffective assistance of counsel claim solely
on the basis of a lack of prejudice. Id. at 916.
The motion court found no evidence that moving the
trial to some location across the state from St. Charles County would
have significantly diminished pretrial publicity. Of greater
significance is the motion court's finding that the jurors before whom
Movant was tried were not affected by pretrial publicity. Our review
of the transcript of the voir dire examination and the Rule 27.26
evidentiary hearing supports these findings and a Conclusion that
Movant's defense was not prejudiced by her trial counsel's failure to
request a change of venue from Phelps County. We reject Point II.
Movant's Point III concerns the calling of Movant's
daughter, Norma Hawkins, as a court's witness at the request of the
state. Although Movant casts Point III as a claim of prosecutorial
misconduct, the subject of Norma Hawkins's being called as a court's
witness was discussed at length in this court's opinion affirming
Movant's conviction. Allen, 714 S.W.2d at 196-98. The gist of Point
III is an attempt to relitigate in this proceeding an issue resolved
on direct appeal. This Movant may not do. Clark, 859 5.W.2d at
789. Moreover, the claim of error as expressed in Point III
remains a charge of trial court error, and Movant has not shown why
she could not have raised it at trial and on direct appeal. See Id. at
789. We reject Point III.
We affirm the judgment of the motion court.