State of Missouri v.
Andrew Wessel Six
805 SW 2d 159
Andrew Wessel Six was
executed on August 20, 1997
On April 10, 1987, Andrew Six and his uncle Donald Petary went to
the home of Mr. And Mrs. Don and Stella Allen in Ottumwa, Iowa with
the intent to purchase a pick-up truck that was being sold by the
Allens to help pay for Mr. Allen’s open heart surgery.
In the truck, Six overpowered Mrs. Allen and
Petary taped her hands behind her back with duct tape they had
purchased earlier that evening. Learning that the Allens’ 17 year
old daughter Christine was in their trailer home, Six stated that he
wanted to rape Christine who was several months pregnant.
When the trio returned to the trailer Don Allen
was waiting outside. Six held a knife to Stella Allen’s throat while
Petary, also armed with a knife, ordered Mr. Allen inside the
trailer where Petary taped Mr. Allen’s hands. Mr. And Mrs. Allen
were then taken into a bedroom where their mouths were also taped.
Petary guarded the Allens while Six retrieved
their 13 year old daughter Kathy who was taken to the bedroom with
her parents. Six then went to Christine’s room and raped her.
Six then took Christine to the bedroom with the
other family members and ordered the two girls to get dressed in
overalls. Six took Mr. and Mrs. Allen’s wallets and during that time
struggled with Mr. Allen whereupon Six regained control of Mr. Allen
threatened to kill Mrs. Allen if Mr. Allen attempted anything
As Six and Petary were leading the Allen family
from their home Mr. Allen and Christine managed to break free to run
for help. Six then cut Mrs. Allen’s throat exposing her carotid
artery which required 50 stitches to close. Six and Petary abducted
Kathy Allen and then made their escape.
The following evening Six and Petary were
arrested in east Texas. With information received during
interrogation law officers found Kathy Allen’s body in a ditch near
a culvert on a gravel road of U.S. Highway 63 in Schuyler County,
She wore bib overalls. Her throat had been cut
severing her jugular vein and carotid artery causing her to bleed to
death. A hair matching that of Andrew Six was found in her underwear.
01/27 -- Six was arrested for Fifth Degree Theft in Pella,
Iowa and fined $ 25.00.
12/30 -- Convicted of Misdemeanor Theft Fourth Degree and
placed on one year probation and fined $1,295 and ordered to pay
court costs, restitution and attorney’s fees. On June 20, 1987 the
probation was revoked and he was placed on court supervision until
all costs were paid in full.
4/11 – Andrew Six is arrested for the murder of Kathy Allen.
7/29 – Andrew Six is convicted of Murder First Degree in the
Schuyler County Circuit Court. The jury cannot agree to as to the
sentence. The trial judge assesses the death penalty as the
9/2 – Six is formally sentenced to death for Murder First Degree.
9/8 – Six appealed his conviction to the Missouri Supreme Court.
3/13 – Six filed a motion for post-conviction relief with the
Missouri Supreme Court.
11/28-30 – The Circuit Court of Schuyler County held an evidentiary
hearing on Six’s post-conviction relief motion.
3/13 – The Circuit Court of Schuyler County denies Six’s motion for
3/5 – The Missouri Supreme Court affirmed Six’s conviction and
sentence and the denial of post-conviction relief.
10/7 – The United States Supreme Court declined to review Six’s
10/16 – Six filed a federal petition for writ of habeas corpus in
the United States District Court for the Eastern District of
5/2 – The United States District Court denied Six’s federal habeas
8/27 – The United States Court of appeals for the eighth Circuit
affirmed the district court’s decision denying federal habeas corpus
6/2 – The United States Supreme Court declined to review Six’s
federal habeas case.
6/13 – The Missouri State Supreme Court set an execution date of
August 20, 1997.
857 F.2d 458
26 Fed. R. Evid.
UNITED STATES of America, Appellee,
Donald Eugene PETARY, Appellant.
UNITED STATES of
Andrew Wessel SIX, Appellant.
United States Court of Appeals,
Submitted May 13, 1988.
Decided Sept. 14, 1988.
Before HEANEY and McMILLIAN,
Circuit Judges, and HILL,
Senior District Judge.
McMILLIAN, Circuit Judge.
These cases were consolidated
for purposes of appeal. Donald Eugene Petary and Andrew Wessel
Six appeal from final judgments entered in the District Court
for the Southern District of Iowa upon jury verdicts finding
each guilty of kidnapping in violation of 18 U.S.C. Sec. 1201.
Petary and Six received identical sentences of two hundred years
imprisonment with possibility of parole after sixty-six years,
pursuant to 18 U.S.C. Sec. 4205(b)(1), and each was ordered to
pay a special assessment of $50 and restitution in the amount of
For reversal, Petary argues
that the district court erred in denying his pre-trial motion to
suppress certain statements and in imposing a two-hundred year
sentence. For reversal, Six argues that the district court erred
in (1) admitting evidence of other crimes, (2) denying his
motion for change of venue, (3) denying his motion for a
mistrial, and (4) admitting photographic evidence. Six further
argues that the cumulative effect of these errors denied him a
fair trial. For the reasons discussed below, we affirm the
judgments of the district court.
In Ottumwa, Iowa, on the night
of April 10, 1987, Mrs. Stella Allen accompanied Six and his
uncle Petary on a purported test drive of a pick-up truck that
the Allen family had offered for sale. Mrs. Allen was slightly
familiar with Petary because he had previously lived in the same
During the test drive and
after driving a distance down the highway, Six pulled the truck
off the road and stopped, indicating that he wanted Petary to
drive. As the two men switched places, Six pulled a knife on Mrs.
Allen, threatened her with bodily harm and bound her hands with
duct tape. They then returned to the Allens' trailer home.
Petary and Six confronted Mr.
Donald Allen outside the trailer and ordered him back into the
trailer home by threatening to kill Mrs. Allen. Six had a knife
pointed at Mrs. Allen's neck. When they were inside the trailer,
Six taped and bound Mr. Allen to a chair. Six awakened the
Allens' twelve-year-old daughter, Kathy Allen, in the process of
taping her mouth shut. Six then raped the Allens' seventeen-year-old
daughter, Christine Allen, who was approximately six months
Then both men tried to abduct
the entire Allen family. Petary forced the two Allen daughters
out of the trailer and into his station wagon. Six forced Mrs.
Allen at knifepoint out of the trailer. While Six was holding
Mrs. Allen, there was a scuffle and Mr. Allen and Christine
Allen escaped. Kathy Allen remained in the station wagon. Six
reacted by slashing Mrs. Allen's throat.
The two men then fled in the station wagon, taking Kathy Allen
On April 11, 1987, near Moscow,
Texas, both men were apprehended and arrested. Kathy Allen was
missing. After his arrest, local law enforcement officers
informed Petary of his Miranda rights, and he signed a waiver of
rights. He was then interviewed by Federal Bureau of
Investigation (FBI) agents. Before interrogating him, the FBI
agents repeated the Miranda warnings. Petary initially expressed
some reluctance, but he agreed to talk about "some things and
some he would not."
The FBI agents told Petary
that Six was currently undergoing questioning and was talking
and would probably place full blame for the crime on him.
Unknown to Petary, Six had refused to cooperate and did not make
any statements. The FBI agents urged Petary to reveal the nature
and extent of his participation in the kidnapping and pressed
him for details as to Kathy Allen's whereabouts. Several hours
later, after the FBI agents told Petary that Mrs. Allen was
still alive, Petary provided additional information that enabled
the authorities to locate Kathy Allen's body.
On April 22, 1987, Petary and
Six were indicted and charged in a single count indictment with
kidnapping Kathy Allen in violation of 18 U.S.C. Secs. 1201, 2.
Petary and Six were tried separately and each was found guilty.
These appeals followed.
No. 87-2485 United States v.
Donald Eugene Petary
Petary first argues that the
district court erred in denying his motion to suppress certain
statements because the statements were not made voluntarily.
Petary argues that before he was interrogated by the FBI agents,
he had not slept for approximately twenty-four hours and had
consumed beer but no food.
He argues that four agents
interrogated him for six to seven hours despite his expressed
reluctance to talk and induced him to talk by lying to him about
their interrogation of Six and by promising him that if he
cooperated, his cooperation would be made known to the proper
authorities. Petary contends that his incriminating statements
were induced by the FBI agents' misrepresentations and therefore
were involuntary. We do not agree.
The voluntariness of
statements made during custodial interrogation is subject to
plenary review. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct.
445, 451, 88 L.Ed.2d 405 (1985); United States v. Wilson, 787
F.2d 375, 380 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct.
197, 93 L.Ed.2d 129 (1986). The nature of this review is a
flexible consideration of the totality of the circumstances to
determine whether the challenged statements were the result of
an overborne will. Rachlin v. United States, 723 F.2d 1373, 1377
This inquiry requires an
examination of the details of the interrogation, the tactics
used, and the personal characteristics of the defendant. Id. "Misrepresentations
on the part of the government do not make a statement per se
involuntary." Flittie v. Solem, 775 F.2d 933, 945 (8th Cir.1985)
(banc) (citations omitted), cert. denied, 475 U.S. 1025, 106
S.Ct. 1223, 89 L.Ed.2d 333 (1986). It is but one factor to be
considered in reviewing the totality of the circumstances. See
Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424-1425, 22
L.Ed.2d 684 (1969).
Here, Petary was advised of
his Miranda rights at least twice and he signed a waiver; he
does not now claim to have misunderstood those rights. Petary is
a competent adult and was familiar with arrest procedures,
factors which indicate that he would not easily fall prey to FBI
interrogation tactics. Further, the interrogation had an
immediate investigatory objective.
At the time of the
interrogation, the FBI agents were unaware of Kathy Allen's
condition or her whereabouts. Petary provided the information
about where Kathy Allen could be found only after he was told
that Mrs. Allen was still alive. A logical conclusion would be
that Petary decided to provide provide this information because
he thought he could still avoid a murder charge if he helped the
authorities locate Kathy Allen while she, too, had a chance for
Taken together, the totality
of the circumstances indicate that Petary acted knowledgeably
and freely when he made the incriminating statements. We thus
hold that the district court did not err in denying Petary's
motion to suppress these statements.
Petary next argues that the
district court's imposition of a two-hundred year sentence
without possibility of parole for sixty-six years was in excess
of statutory limits and an abuse of discretion. Petary contends
that several factors support a less severe sentence: his role in
the kidnapping was relatively passive, he is fifty years old, he
has been diagnosed as an alcoholic, and he provided information
that helped the authorities find Kathy Allen.
In general, a sentence is not
subject to review unless it exceeds statutory limits, violates
constitutional or procedural requirements, or shows that the
district court manifestly or grossly abused its discretion. E.g.,
United States v. Rosandich, 729 F.2d 1512, 1512 (8th Cir.1984) (per
curiam); United States v. Hollis, 718 F.2d 277, 279 (8th
Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1309, 79 L.Ed.2d
The penalty for the crime of
kidnapping is "imprisonment for any term of years or for life."
18 U.S.C. Sec. 1201. Title 18 U.S.C. Sec. 4205(b)(1) authorizes
the sentencing judge, when required by "the ends of justice and
the best interest of the public," to set the minimum number of
years that a prisoner must serve before he or she is eligible
for parole, so long as the minimum term does not exceed one-third
of the total sentence length.
In Rothgeb v. United States,
789 F.2d 647, 652 (8th Cir.1986), this court affirmed a sentence
requiring the defendant to serve longer than ten years before he
is eligible for parole under Sec. 4205(b)(1). See also United
States v. O'Driscoll, 761 F.2d 589, 600 (10th Cir.1985), cert.
denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986) (three-hundred-year
sentence without possibility of parole for ninety-nine years
held within statutory bounds for kidnapping conviction).
Petary's two-hundred-year sentence was within the statutory
limits for the crime of kidnapping and thus not illegal. Id. at
Nor did the district court
abuse its discretion in sentencing Petary to a term of two
hundred years without possibility of parole for sixty-six years.
The crime was particularly brutal, Petary has a long criminal
record, and the record shows that his role in the kidnapping was
an active, not passive, one.
No. 87-2486 United States v.
Andrew Wessel Six
Six first argues that the
district court erred in admitting evidence of other criminal
acts that occurred before the kidnapping. Six specifically
argues that evidence about restraining Mr. and Mrs. Allen with
duct tape, the rape of Christine Allen, and the slashing of Mrs.
Allen's throat was improperly admitted. Six argues that this
evidence was not admissible as evidence of other crimes pursuant
to Fed.R.Evid. 404(b), or, in the alternative, was not
admissible under Fed.R.Evid. 403 because its probative value was
substantially outweighed by its prejudicial impact.
The government argues that in
the present case the evidence of other crimes was not admitted
under Fed.R.Evid. 404(b) but because it was "an integral part of
the immediate context of the crime charged." United States v.
Bass, 794 F.2d 1305, 1312 (8th Cir.), cert. denied, 479 U.S.
869, 93 L.Ed.2d 159, 107 S.Ct. 233 (1986).
In general, evidence of a
defendant's other criminal acts not charged in the indictment is
not admissible. Evidence of other crimes may be admissible,
however, where such evidence is "so blended or connected with
the one on trial as that proof of one incidentally involves the
other; or explains the circumstances thereof; or tends logically
to prove any element of the crime charged." Bracey v. United
States, 79 U.S.App.D.C. 23, 142 F.2d 85, 88 (footnotes omitted),
cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944);
see, e.g., United States v. Tate, 821 F.2d 1328, 1331 (8th
Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 712, 98 L.Ed.2d
662 (1988); United States v. Derring, 592 F.2d 1003, 1007 (8th
Here, the other crimes
constituted an integral part of the operative facts of the crime
and was therefore not excludable as extrinsic evidence, and
Fed.R.Evid. 404(b) is not implicated. See, e.g., United States
v. Bass, 794 F.2d at 1312.
"[T]aking [other crimes]
evidence out of the scope of [Fed.R.Evid.] 404(b) analysis does
not remove all limits on [its] admission.... The dictates of [Fed.R.Evid.]
403 must still be applied to ensure that [its] probative value
... is not outweighed by its prejudicial value." Id.
Although we are somewhat
troubled by the violent and extremely emotional nature of the
evidence of other crimes in the present case, "[t]he line
between permissible evidence which is an inextricable part of a
criminal transaction and unduly prejudicial evidence proscribed
by [Fed.R.Evid.] 403 is thin." Id. at 1313. We find no abuse of
Six next argues that the
district court erred in denying his motion for change of venue
because of prejudicial pre-trial publicity. Six waived any
objection by failing to question any juror about his or her
knowledge of this case during voir dire. Cf. Robinson v.
Monsanto Co., 758 F.2d 331, 335 (8th Cir.1985) (right to
challenge a juror waived by failure to object at the time the
jury is empaneled if the basis for the objection might have been
discovered during voir dire). Even if Six had preserved this
issue for appellate review, the record fails to support his
Six next argues that the
district court erred in failing to declare a mistrial after the
Allens shouted derogatory remarks at him from the witness stand.
"The decision whether a trial has been so tainted by prejudicial
testimony that a mistrial should be declared lies within the
discretion of the district court." United States v. Muza, 788
F.2d 1309, 1312 (8th Cir.1986); see United States v. Reed, 724
F.2d 677, 679-80 (8th Cir.1984).
Here, the district court
promptly admonished the jury to disregard the Allens' remarks.
See United States v. Young, 553 F.2d 1132, 1136 (8th Cir.), cert.
denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278 (1977).
Under these circumstances, we hold the district court did not
abuse its discretion in denying the motion for mistrial.
Six finally argues that the
district court erred in admitting into evidence a graphic
photograph of Kathy Allen's body. We disagree. The district
court has broad discretion in deciding whether to admit a given
item of evidence. United States v. Williams, 545 F.2d 47, 50
In this case there is no
indication that the photograph was so gruesome or inflammatory
that its prejudicial impact substantially outweighed its
probative value. Because there were signs of a struggle and
blood at the site, the photograph of the body was evidence that
tended to show that Kathy Allen had been alive when Six and
Petary transported her across state lines against her will. The
district court did not abuse its discretion in admitting the
photograph of the body into evidence.
Because we found no merit in
any of Six's individual allegations of error, there is no reason
to consider whether their cumulative effect denied him a fair
Accordingly, the judgments of
the district court are affirmed.