Missouri executes John Winfield for
1996 double murder
By Mike Lear - Missourinet.com
June 18, 2014
Missouri has carried out the execution of 46-year-old
John Winfield for the murders of two women in St. Louis County 18 years
ago. Winfield received a lethal injection of pentobarbital at 12:01
Wednesday morning and was pronounced dead at 12:10.
Winfield appeared to tell the witnesses that were
there for him, “I love you,” after the curtains were opened to the
execution chamber. After the 5 grams of the drug was administered,
Winfield took a series of deep breaths and then stopped moving. The
execution appeared to take less than a minute.
Winfield declined to make a final statement and did
not accept food prior to the execution. His body was released to one of
The execution was witnessed by five members of the
family of one of the women he killed, Shawnee Murphy, as well as his
ex-girlfriend Carmelita Donald whom he shot four times leaving her
blind, three members of her family, his mother, his daughter, and two of
his friends. There were no representatives present of the other woman he
fatally shot, Arthea Sanders.
Winfield is the seventh man executed in Missouri
since November, and the seventh since the state began using
pentobarbital compounded by a pharmacy that the Department of
Corrections will not officially confirm the identity of.
Winfield’s execution proceeded after the United
States Supreme Court declined two applications for stays filed by his
attorneys. One asked for a stay until the resolution of an appeal
Winfield had pending in the 8th Circuit Court of Appeals related to
Missouri’s execution protocol. The other had asked the Court to stay his
execution while it reviewed the 8th Circuit Court’s records and
considered his argument that consideration of his petition for clemency
was interfered with by Department of Corrections officials.
A short time later, Governor Jay Nixon (D) denied
Winfield’s petition for clemency.
In a statement, Nixon wrote, “John Winfield’s violent
rampage on the night of Sept. 9, 1996, left two women dead and another
permanently blinded. The two murder victims, Arthea Sanders and Shawnee
Murphy, were killed while trying to help Carmelita Donald escape from
the armed Winfield. Carmelita Donald herself was shot and permanently
blinded by Winfield, who showed no mercy that night on his victims. The
jury in this case properly found that these heinous crimes warranted the
death penalty, and my denial of clemency upholds the jury’s decision.
“I ask that the people of Missouri remember the
victims of John Winfield, both those who were killed and those who
survived, and keep them and their families in their thoughts and
After the execution was carried out, Attorney General
Chris Koster also issued a statement. He writes, “Nearly two decades
have passed since John Winfield’s cowardly acts of rage and jealously
changed the lives of three families forever. He brutally murdered two
defenseless young women, one in front of her children, and attempted to
murder the mother of his own children, leaving her permanently disabled.
For his actions, a court lawfully sentenced him to death under Missouri
law, and tonight that sentence has been carried out.”
Ahead of Winfield’s lethal injection, Missouri was
again the subject of national attention for its executions. It was one
of three executions scheduled to take place within 24 hours of one
another from Tuesday to Wednesday evening. It became the second
execution since one widely regarded as “botched” in Oklahoma; that of
Clayton Lockett in April.
An independent autopsy has revealed that the
execution team there failed to set a properly functioning intravenous
tube in Lockett’s leg. He died of a heart attack 43 minutes after the
first drugs were administered.
A condemned Georgia inmate, Marcus Wellons, was
executed late Tuesday night by lethal injection for the 1989 rape and
murder of a 15-year-old girl. In Florida, John Ruthell Henry is
scheduled to be executed Wednesday evening for murdering his wife in
State of Missouri vs. John E. Winfield
Missouri Supreme Court Case Number SC81165
September 1996, John E. Winfield lived in a St. Louis County home one
block from a second floor apartment where his ex-girlfriend and mother
of his children, Carmelita Donald, lived. Living with Carmelita and her
children were Carmelita's sister, Melody Donald, and friend Arthea
Sanders. In the apartment below them lived their friend, Shawnee Murphy,
and her three children.
Winfield began dating
Carmelita in 1989 and continued to have an on-and-off relationship with
her through the spring of 1996. During that time, they had two children
over whom they shared physical custody. In the late summer of 1996,
Carmelita began dating Tony Reynolds. They succeeded in keeping that
relationship a secret from Winfield for about a month.
On the night of
September 9, 1996, Carmelita went out for the evening with Reynolds.
Meanwhile, Winfield began making a series of calls to Carmelita's
apartment asking Melody about her sister's whereabouts and instructing
her to have Carmelita call him when she returned home. Melody told
Winfield that she did not know where Carmelita was.
Carmelita returned to the apartment with Tony Reynolds. They saw
Winfield's white Cadillac parked in front. To avoid trouble with
Winfield, they drove to Reynolds' female cousin's house. There they
persuaded her to drive Carmelita home. When the two women arrived back
at Carmelita's apartment, Winfield's car was still there.
As Carmelita started to
climb the stairs to her apartment, Winfield came down, said he needed a
word, and pushed her down the stairs. They walked outside, and Winfield
asked Carmelita about her relationship with Tony Reynolds.
walked outside and slashed the tires on Winfield's car. Upon her return
to the downstairs apartment, Arthea told Melody to call the police and
yelled outside, asking Carmelita if she was alright. Carmelita said she
was fine. Despite Arthea's request, Melody did not call the police.
A car door "slammed"
shut. Melody assumed it was Winfield leaving. However, Winfield had run
into the downstairs apartment, Carmelita in pursuit. From outside, she
warned Arthea to run because Winfield was armed and coming to get her.
Shawnee's downstairs apartment and began chastising Arthea. He then shot
her in the head. Then he walked outside and pointed the gun at
Carmelita. Carmelita pleaded with him to no avail; he shot her several
times. Although permanently blinded, Carmelita survived.
Meanwhile, Melody and James ran into
Shawnee's kitchen, hoping to escape through the back door. The door was
jammed and would not open. Shawnee, while attempting to collect her
children, began pleading with Winfield. Winfield shot her in the head.
Next, Winfield turned and pointed the gun
at Melody. She fell to the floor. Winfield pointed the gun at James and
said, "[Y]ou next." James grabbed the gun, and he began wrestling with
Winfield. During this time, James heard the gun "click." Winfield broke
free and struck James with the gun.
Winfield fled, and James attempted to
follow. Melody escaped while James struggled with Winfield and ran to a
neighbor's house to call the police. An officer with the University City
Police Department arrested Winfield at his home. Both Arthea Sanders and
Shawnee Murphy died as a result of their wounds.
Supreme Court of Missouri, En Banc.
State v. Missouri
STATE of Missouri, Respondent,
John E. WINFIELD, Appellant.
No. SC 81165.
Decided: November 9, 1999
William J. Swift, Asst. Public
Defender, Columbia, for appellant. Jeremiah W. (Jay) Nixon, Atty. Gen.,
Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, for
Defendant, John Winfield, was convicted by a St.
Louis County jury of two counts of first degree murder, two counts of
first degree assault, and four counts of armed criminal action. The
circuit court sentenced defendant to two death sentences, life and
fifteen years, and four seventy-five year sentences for the crimes
respectively. Defendant challenges his convictions. This Court has
exclusive appellate jurisdiction. Mo. Const., art. V, sec. 3. The
judgment is affirmed.
This Court reviews the facts in the light most
favorable to the verdict. State v. Clark, 981 S.W.2d 143, 145 (Mo. banc
1998). In September 1996, defendant lived in a St. Louis County home
one block from a second floor apartment where his ex-girlfriend and
mother of his children, Carmelita Donald, lived. Living with Carmelita
and her children were Carmelita's sister, Melody Donald, and friend
Arthea Sanders. In the apartment below them lived their friend,
Shawnee Murphy, and her three children.
Defendant began dating Carmelita in 1989 and
continued to have an on-and-off relationship with her through the spring
of 1996. During that time, they had two children over whom they shared
physical custody. In the late summer of 1996, Carmelita began dating
Tony Reynolds. They succeeded in keeping that relationship a secret
from defendant for about a month. On the night of September 9, 1996,
Carmelita went out for the evening with Reynolds. Meanwhile, defendant
began making a series of calls to Carmelita's apartment asking Melody
about her sister's whereabouts and instructing her to have Carmelita
call him when she returned home. Melody told defendant that she did
not know where Carmelita was.
Shortly thereafter, defendant went to the apartment
and began inquiring further about Carmelita. Melody again replied that
she did not know where Carmelita could be found. He made a phone call
and left the apartment for approximately ten minutes. He returned with
Arthea, who had been drinking. Once inside, he tried once more to find
out where Carmelita had gone. One last time, Melody informed defendant
that she did not know. At some point, Arthea, who knew Carmelita was
out with Tony Reynolds, took Melody aside and told her where Carmelita
was and to lie to defendant by telling him that Carmelita was at
Arthea's mother's house. Apparently, the pair believed this would
satisfy the already agitated defendant and get him to return home.
Eventually, Melody went downstairs to Shawnee's apartment to call
Arthea's parents to tell them of the story they had concocted. In
Shawnee's apartment, Melody found Shawnee, her three children, and a
guest, James Johnson. While there, Melody heard a crashing sound
coming from her apartment upstairs. When she returned to the upstairs
apartment, Melody found the entertainment center “knocked over” and
broken. Defendant then asked Melody how she could do this to him.
She denied knowing what he was talking about. Melody returned to
Shawnee's apartment and reported that defendant was upstairs turning
over furniture because he was angry about Carmelita being absent. The
two women decided to go back upstairs. Defendant began pacing the
apartment. He became increasingly agitated and angry, at one point
making threats toward Carmelita.
Around midnight, Carmelita returned to the apartment
with Tony Reynolds. They saw defendant's white Cadillac parked in
front. To avoid trouble with defendant, they drove to Reynolds' female
cousin's house. There they persuaded her to drive Carmelita home.
When the two women arrived back at Carmelita's apartment, defendant's
car was still there. As Carmelita started to climb the stairs to her
apartment, defendant came down, said he needed a word, and pushed her
down the stairs. They walked outside, and defendant asked Carmelita
about her relationship with Tony Reynolds. Meanwhile, Arthea walked
outside and slashed the tires on defendant's car. Upon her return to
the downstairs apartment, Arthea told Melody to call the police and
yelled outside, asking Carmelita if she was alright. Carmelita said
she was fine. Despite Arthea's request, Melody did not call the
A car door “slammed” shut. Melody assumed it was
defendant leaving. However, defendant had run into the downstairs
apartment, Carmelita in pursuit. From outside, she warned Arthea to
run because defendant was armed and coming to get her. Defendant
entered Shawnee's downstairs apartment and began chastising Arthea. He
then shot her in the head. Then he walked outside and pointed the gun
at Carmelita. Carmelita pleaded with him to no avail; he shot her
several times. Although permanently blinded, Carmelita survived.
Meanwhile, Melody and James ran into Shawnee's
kitchen, hoping to escape through the back door. The door was jammed
and would not open. Shawnee, while attempting to collect her children,
began pleading with defendant. Defendant shot her in the head. Next,
defendant turned and pointed the gun at Melody. She fell to the floor.
Defendant pointed the gun at James and said, “[Y]ou next.” James
grabbed the gun, and he began wrestling with defendant. During this
time, James heard the gun “click.” Defendant broke free and struck
James with the gun. Defendant fled, and James attempted to follow.
Melody escaped while James struggled with defendant and ran to a
neighbor's house to call the police. An officer with the University
City Police Department arrested defendant at his home. Both Arthea
Sanders and Shawnee Murphy died as a result of their wounds.
At trial, a firearms examiner employed by the St.
Louis County Police Department Crime Laboratory testified that he
analyzed six spent shell casings and five recovered rounds from the
crime scene and from the body of Shawnee Murphy. From his study of the
casings and recovered bullets, the examiner concluded that they were
most likely .380 caliber bullets fired by a Davis pistol. Furthermore,
he explained, this weapon would hold six rounds if one was loaded into
the chamber and the magazine was full. He further testified that when
empty, pulling the trigger causes the gun to make a clicking sound.
Defendant testified in his own defense. He said
that when he retrieved the gun from his car, he “just snapped.” He
stated that he did not intend to hurt anyone. Defendant also testified
that he did not even remember shooting either Shawnee or Carmelita. In
addition, defendant maintained that his memory also failed him when
trying to recall his fight with James Johnson.
The jury found defendant guilty on all counts.
During the penalty phase, the jury recommended he be sentenced to death
for the murders of Arthea Sanders and Shawnee Murphy. To sustain a
sentence of death, the jury found that the murder of Shawnee Murphy was
committed while defendant was engaged in the unlawful commission of
another unlawful homicide, that of Arthea Sanders and vice-versa.
Defendant argues that the trial court improperly
sustained the state's motion to strike a venireperson for cause due to
her views on capital punishment. He contends this deprived him of his
rights to an impartial jury, due process, and freedom from cruel and
unusual punishment under both the United States and Missouri
Constitutions. The standard for reviewing the exclusion of a
venireperson during the death-qualification phase of jury voir dire is
whether the venireperson's views would prevent or substantially impair
the performance of the duty as a juror in accordance with the
instructions and the oath. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct.
844, 852, 83 L.Ed.2d 841 (1985); State v. Barnett, 980 S.W.2d 297, 303
(Mo. banc 1998), cert. denied, 525 U.S.1161, 119 S.Ct. 1074, 143 L.Ed.2d
77 (1999). This Court will not disturb the trial court's ruling on the
qualification of a juror unless it is clearly against the evidence and
is a clear abuse of discretion. Barnett, 980 S.W.2d at 303.
In this case, defendant argues the trial court abused
its discretion because venireperson Stokes' initial reluctance to
consider the death penalty was somehow eliminated or overshadowed by her
willingness to follow the court's instructions and to follow the law.
When the prosecution asked Stokes whether she could consider both life
without parole and the death penalty, she replied, “That's tough.” The
record further reveals:
[PROSECUTION]: It's not supposed to be an easy
STOKES: I probably would have to say no.
* * *
STOKES: No. No. I'm a nurse. I been [sic] a nurse
for 35 years. It would be extremely difficult for me under any
circumstance cause [sic] I spent my life taking care of people. To say
that I could impose the death penalty, I just don't think I could.
* * *
Defendant, however, claims Stokes' later responses
indicate a willingness to impose the death penalty.
[DEFENSE COUNSEL]: Nothing. All that you have to
do is to be able to give meaningful consideration to that and life
without parole. Can you give meaningful consideration and follow the [c]ourt's
STOKES: I believe I could.
[DEFENSE COUNSEL]: All right. And you can follow
the law in the case, is that correct?
* * *
[DEFENSE COUNSEL]: All right. And then finally, in
my death penalty case there will be - well, let me put it this way: if
on Saturday morning as Ms. Constantin's saying, she believes she's going
to be up here asking for the death penalty. Is there anyone that feels
just because we've gotten that far that the imposition of the death
penalty must then follow? Another way, Ms. Brown, if we get to the
second stage you don't believe that automatically is the death penalty?
BROWN: I would consider both.
DEFENSE COUNSEL: And Ms. Stokes, you would consider
The most that may be said of Stokes' voir dire is
that she would “consider” the death penalty along with life
imprisonment, and also she was not compelled to give the death penalty.
Those answers fall short of recanting her earlier direct statement
that “I just don't think I could” impose the death penalty. When the
state moved to strike Stokes for cause, the transcript read as follows:
PROSECUTION: I would just state that she is one of
those people caught up in the “I can follow the law” without really
understanding what we're saying by “the law,” and then when you actually
ask her if she can consider the death penalty she can't consider the
DEFENSE COUNSEL: Judge, I think it was the other way
around. When asked what your personal opinion is you can get almost
anyone to say I'm for or against the death penalty, but the ultimate
question is whether they can set that aside and then follow the law.
THE COURT: It is, but, you know, at the very
beginning she made a point about being a nurse and that she felt she
couldn't. I felt that she was very strong on that, so I'm going to
strike her for cause.
The applicable standard does not require that a
juror's bias be proven with “unmistakable clarity.” Witt, 469 U.S. at
424, 105 S.Ct. 844. It is sufficient that the record reflects evidence
that the prospective juror's ability to impose the death penalty is
substantially impaired. Id. Thus, the record does not reflect an abuse
of discretion by the trial court on this issue. The claim is denied.
Defendant claims the trial court failed to make
sufficient fact findings regarding the nature of his confession to
police. Specifically, he states the trial court should have made
findings about whether his statements were made knowingly,
intelligently, and voluntarily. Defendant did not question the trial
court's failure to make findings in his motion for a new trial. In
order to preserve an issue for appeal, it must also be presented in the
motion for new trial. Rule 29.11(d). Since defendant did not
preserve the issue, review is limited to a plain error standard. Rule
30.20. In its order overruling defendant's motion to suppress the
statements, the court stated, “Cause called. Evidence adduced.
Defendant's motions to suppress evidence, identification and statements
are heard and over-ruled.” While this Court has insisted upon the
requirement that the record be clear that the trial court did make such
findings regarding a defendant's statement, it has refused to make this
a formal requirement. State v. Knese, 985 S.W.2d 759, 767 (Mo. banc
1999, cert. denied, 526 U.S. 1136, 119 S.Ct. 1814, 143 L.Ed.2d 1017
(1999)). The only prerequisite is that the trial court's conclusions
make unmistakably clear that the confession is voluntary. State v.
Schnick, 819 S.W.2d 330, 336 (Mo. banc 1991). Moreover, the
sufficiency of the court's findings need not be determined solely from
the dispositive order. The whole record may be considered. State v.
Hull, 595 S.W.2d 49, 53 (Mo.App.1980).
Defendant relies on State v. Bittick, 806 S.W.2d 652
(Mo. banc 1991), to argue the lack of specific findings warrants at the
least a remand to determine the knowing, intelligent, and voluntary
nature of any waiver on, in the alternative, a new trial. In Bittick,
the Court remanded for a determination of whether the defendant's
confession was knowing and intelligent. Bittick claimed that
intoxication, lack of education, and delirium tremens diminished his
ability to give a constitutionally valid waiver of his rights. In this
context, the trial court found only that Bittick's statement was “freely
and voluntarily given.” Based on the record and the incomplete ruling
made by the trial judge, it was unclear whether the trial judge believed
the waiver was “knowing and intelligent.”
In the case at bar, the arresting officer Mirandized
defendant who then indicated that he understood his rights. The
officer then asked him what he had done with the gun. Defendant
replied that he had thrown it in a creek. After being processed at the
police department, another officer again Mirandized defendant. Again,
defendant acknowledged his understanding of his rights. Furthermore,
the officer had defendant initial each point on the Miranda form as they
proceeded through it, had him sign it, witnessed it with another
officer, and defendant circled “yes” under the question “do you wish at
this time to talk or give a statement.” Defendant does not suggest
that intoxication or mental incapacity inhibited the validity of his
confession. Defendant points out that the officer failed to videotape
or audiotape his confession and did not obtain a signed written waiver.
While no tape audio or video was made, a more careful reading of the
motion hearing transcript refutes the latter. Additionally, he notes,
this particular officer had never before conducted a murder
interrogation, as if somehow this calls for additional safeguards to
ensure a knowing, intelligent, and voluntary waiver. This is not the
case. There is no requirement that an officer receiving a waiver of
Miranda rights have prior experience in homicide investigation. If one
is informed of the right to remain silent under Miranda, understands the
right to remain silent under Miranda, and thereafter makes voluntary
statements, it is absurd to say that such person has not made a knowing
and intelligent waiver of his right to remain silent. Schnick, 819
S.W.2d at 336. Clearly, the record reflects the constitutional
validity of defendant's waiver. Unlike Bittick, nothing in the record
suggests a coerced or uninformed waiver or that the trial judge did not
believe the waiver was knowing, intelligent and voluntary. The trial
court's failure to specifically announce its findings in more detail
constitutes no more than harmless error. No plain error exists on this
Defendant next challenges the adequacy of the jury
instructions. First, he believes the trial court should have submitted
instructions on the lesser included offense of voluntary manslaughter
for the two homicide counts. In failing to do so, he maintains, his
due process rights and right to be free from cruel and unusual
punishment were violated. Rule 30.06(e) requires that the refused
instruction be set forth in the argument portion of the brief. It has
not been. Instead, defendant states that a certified copy of an
affidavit from the St. Louis County Circuit Court legal counsel was
filed with this Court indicating that a search for Instructions A and B
was conducted. In his brief, defendant reproduces MAI-Cr3d 313.08.
The state suggests that no such instructions were even submitted to the
trial court. During the jury instructions conference the record
[DEFENSE COUNSEL]: ․ It's my understanding that the
[C]ourt will mark as refused Instruction A, the [V]oluntary manslaughter
that applies to [C]ount 1, and will mark as refused Instruction B the [V]oluntary
manslaughter instruction as to [C]ount 3. And I will, for the record,
make sure that the [C]ourt has a hard copy of that at some time as soon
* * *
THE COURT: And I was going to ask you that, but I
wanted to make sure of the written copy, because technically you are
supposed to have the written copy, and you will submit it to me before
the case is completed, correct? Well, let me ask it to you, can you
submit it to me later on this week?
[DEFENSE COUNSEL]: Hopefully I can submit it to you
as soon as we're done with the closing argument.
THE COURT: That's fine. That's what I mean.
Assuming arguendo that these two instructions were
submitted to the circuit court and refused, the trial court's refusal
may be reviewed where the rejected instructions were pattern
instructions. State v. Hopson, 891 S.W.2d 851, 852 (Mo.App.1995).
To support his point of error, defendant offers the
fact that he was angry about being misled about Carmelita's whereabouts
and discovering her relationship with Tony Reynolds. He contends this
anger was exacerbated by Arthea slashing the tires on his car. This,
he submits, provides the evidence of sudden passion sufficient to
require a voluntary manslaughter instruction. A voluntary manslaughter
instruction is authorized where the circumstances would constitute
murder in the second degree except the accused caused the death under a
sudden passion arising from adequate cause. Sec. 565.023.1.1
“Adequate cause” means cause that would reasonably produce a degree of
passion in a person of ordinary temperament sufficient to substantially
impair an ordinary person's capacity for self control. State v.
Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996). It is doubtful that a
person of ordinary temperament would be enraged to the point of killing
two people and shooting a third multiple times under the facts here so
as to entitle defendant to the voluntary manslaughter instruction.
Regardless, the jury received an instruction on conventional second
degree murder that offered the jury an option to find defendant guilty
if it believed that all the elements of first degree murder had not been
met. Since the jury convicted defendant of first degree murder on both
homicide counts, as opposed to second degree murder, no reasonable basis
exists to contend the jury would have found differently had voluntary
manslaughter instructions been submitted. Barnett, 980 S.W.2d at
305-306 (Mo. banc 1998). The Court declines defendant's suggestion
that State v. Smith, 781 S.W.2d 761 (Mo. banc 1989), rev'd. on other
grounds, 495 U.S. 916, 110 S.Ct. 1944, 109 L.Ed.2d 306 (1990), which
stands for the same point as the language cited from Barnett, supra, be
reconsidered. The reasoning of both cases is sound.
Next, defendant challenges the trial court's refusal
to submit his Instruction C listing statutory and non-statutory
mitigating circumstances. Failure to submit Instruction C, he argues,
limited the jury's consideration of circumstances that call for a more
lenient sentence. This issue has not been properly preserved for
appeal as it was not included in defendant's motion for a new trial.
Rule 29.11(d). Nevertheless, he seeks plain error review pursuant to
Rule 30.20. The claim that a trial court's rejection of a jury
instruction including both statutory and non-statutory mitigating
factors fails constitutional scrutiny has been repeatedly rejected by
this Court. State v. Rousan, 961 S.W.2d 831, 849 (Mo. banc 1998), cert.
denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998); State v.
Copeland, 928 S.W.2d 828, 853 (Mo. banc 1996). There is no plain error
in this regard.
Defendant asserts trial court error in failing to
sever the first degree murder charges from the assault and armed
criminal action charges sua sponte. Defense counsel neither moved the
court to sever the charges nor addressed the issue in the motion for a
new trial. This claim has not been preserved. Again, defendant
requests plain error review. In his view, section 565.004.1 prevents
the joinder of any other offense alongside a first degree murder charge.
However, the relevant sentence reads, “Except as provided in
subsections 2, 3, and 4 of this section, no murder in the first degree
offense may be tried together with any offense other than murder in the
first degree.” Id. (emphasis added).
Subsection 3 provides:
When a defendant has been charged and proven before
trial to be a prior offender pursuant to chapter 558 RSMo, so that the
judge shall assess punishment and not a jury for an offense other than
murder in the first degree, that offense may be tried and submitted to
the trier together with any murder in the first degree charge with which
it is lawfully joined.
Id. Defendant qualifies as a prior offender under
section 558.016.2 for having previously pleaded guilty to the offense of
felony receipt of stolen property.
Additionally, defendant claims that the murder
charges are not properly joined with the others under section 545.140.2.
He asserts that no evidence of a common plan or scheme exists. Rule
23.05 governs joinder of offenses. Like section 545.140, Rule 23.05
permits the joinder of offenses that are “part of the same transaction
... or that constitute parts of a common scheme or plan.” Id. On this
point, defendant cites State v. Simmons, 815 S.W.2d 426 (Mo. banc 1991),
as a case where this court reversed two convictions of capital murder as
being improperly joined because they were not part of a common scheme or
plan. Simmons involved two murders over a month apart. To connect the
two crimes for joinder, the state argued that the defendant stole
jewelry from both victims and pawned them at the same pawn shop on
different occasions. Moreover, the state asserted that the case was
one of circumstantial evidence, and this similarity went to demonstrate
the identity of the criminal. Id. at 429. While it remains unclear
which of these two arguments convinced the trial court in Simmons that
joinder was proper, neither basis was adequate to support joinder under
section 565.004.1. First, the presence of facts common to both murders
did not indicate that the defendant set out to kill both victims prior
to killing the first. The second argument offers a basis for the
admission of evidence, not joinder. Id. Simmons is not on point.
Here, in a matter of minutes, defendant went to his
car, retrieved a pistol, shot three women, ran out of bullets, tried to
fire on another person, and fought with him over a gun all in the same
apartment. This satisfied the “same transaction or common scheme or
plan” requirement necessary for joinder of criminal offenses. In this
regard, there is no error, plain or otherwise.
Next, defendant challenges the trial court's decision
to sustain the state's objection to the use of a police report to
cross-examine officer Crowley. The report prepared by Crowley
apparently included a statement by James Johnson to Sgt. Minaeff
indicating that Johnson chased defendant following the murders.2
Johnson testified at trial that he did no such thing. Since Johnson
was a key witness for the state, defendant argues, the statement made to
one officer, included in a police report prepared by another, should
have been permissible to use while cross-examining the preparing officer
to impeach Johnson. According to defendant, the trial court's refusal
to allow this questioning violated his due process and confrontation
rights as well as his right to be free from cruel and unusual
At trial, defense counsel insisted the reason for
admitting this evidence was to explain subsequent conduct by police
investigating the crime. The state objected. The court sustained the
objection, concluding that Crowley's statement about what Sgt. Minaeff
said Johnson told Minaeff was hearsay. Now, on appeal, defendant
contends the evidence was intended to impeach Johnson. His brief does
not address subsequent police conduct. When the trial court rules
properly on admissibility of evidence at the time, a claim of error on
another ground advanced for the first time on appeal will not be
considered. State v. Spica, 389 S.W.2d 35, 54 (Mo.1965). The
defendant is bound by the arguments made and the issues raised at trial
and may not raise new and totally different arguments on appeal. State
v. Ward, 782 S.W.2d 725, 731 (Mo.App.1989). Therefore, counsel failed
to preserve this point. Defendant still fails to show how statements
made by Johnson to an officer other than Crowley would not be hearsay
when reported by Crowley.
Defendant cites State v. Claypool, 763 S.W.2d 313,
316 (Mo.App.1988), for the proposition that police reports may be
admitted as evidence to impeach a witness with prior inconsistent
statements. However, the police report at issue in Claypool was the
report of an officer of what he was told by the witness whose testimony
was being impeached. Unless it is clear that officer Crowley was
present when Johnson made the allegedly contradictory statement,
Claypool is inapposite. Trial courts retain broad discretion over the
admissibility of evidence, and appellate courts will not interfere with
those decisions unless there is a clear showing of abuse of discretion.
State v. Hutchison, 957 S.W.2d 757, 763 (Mo. banc 1997). This point
During the penalty phase, defendant claims the trial
court plainly erred in permitting Carmelita to testify as to two
incidents for which he was never charged. This point is absent from
the motion for new trial and is therefore unpreserved for appeal. The
trial court overruled defense counsel's objection to Carmelita
testifying about one incident in which defendant struck her, resulting
in a black eye, and another event in which he threatened her with a gun.
This is plain error, he believes, because the state did not have to
prove these unadjudicated “bad acts” beyond a reasonable doubt. In
support, he cites cases from Indiana and Alabama. See State v.
McCormick, 272 Ind. 272, 397 N.E.2d 276 (1979); and Cook v. State, 369
So.2d 1251 (Ala.1978). However, our precedent is quite clear. As a
general rule, the trial court “has discretion during the punishment
phase of trial to admit whatever evidence it deems helpful to the jury
in assessing punishment.” State v. Kinder, 942 S.W.2d 313, 331 (Mo.
banc 1996) (quoting State v. Six, 805 S.W.2d 159, 166 (Mo. banc 1991)).
Furthermore, evidence of a defendant's prior unadjudicated criminal
conduct may be heard by the jury in the punishment phase of a trial.
Id. Because Kinder was and remains a correct statement of Missouri law,
defendant's request that it be reconsidered is declined.
Defendant complains that the trial court erred in
permitting the state to argue during the penalty phase that he would
have killed Shawnee's children had he not run out of bullets. Counsel,
however, failed to object at trial and did not raise the issue in the
motion for a new trial. This point is not preserved for appeal.
Review is limited to plain error. Rule 30.20. By suggesting
defendant would have shot Shawnee's children, he submits the state
played upon the emotions of the jury, obtaining a sentence not based on
reason as required by law. Gardner v. Florida, 430 U.S. 349, 358, 97
S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). Plain error will seldom be
found in unobjected to closing argument. State v. Kempker, 824 S.W.2d
909, 911 (Mo. banc 1992). A holding that would require the judge to
interrupt counsel presents a myriad of problems. Id. To be entitled to
relief under the plain error rule, an appellant must go beyond a mere
showing of demonstrable prejudice to show manifest prejudice affecting
his substantial rights. State v. Parker, 856 S.W.2d 331, 332 (Mo. banc
1993). In other words, the appellant must show that the error affected
his rights so substantially that a miscarriage of justice or manifest
injustice will occur if the error is left uncorrected. Id. at 332-33.
Even if the comment was improper, a conviction will
be reversed for improper argument only if it is established that the
comment in question had a decisive effect on the jury's determination.
Id. at 333. When reviewing an argument for plain error, the burden is
on the defendant to prove the decisive significance. Id. The record
does not suggest evidence that the state's single comment during the
penalty phase closing argument had such decisive effect. The jury
convicted defendant of the first degree murder of two women. The
evidence offered at trial indicated that he entered the apartment with a
loaded semi-automatic handgun. He proceeded to shoot three people.
Two died. One was permanently blinded. He tried to fire on at least
one other, but had spent all six rounds the weapon was capable of
carrying. The statutory aggravator was satisfied as the jury found
that he committed each murder while engaged in the commission of the
other. No doubt existed that everyone in the apartment was put at risk
by defendant's shooting spree, including the children. It is fair to
infer that the only reason others in the house were not shot was that
defendant ran out of bullets. How the isolated comment regarding his
intentions toward the children effected the jury's verdict is highly
speculative, at best. There is no plain error here.
Lastly, defendant attacks the sentence of death on a
number of fronts. First, he argues the sentence is excessive and
disproportionate and, therefore, violative of his rights to due process
and to be free from cruel and unusual punishment. He claims the trial
court erred in imposing the sentence and, pursuant to this Court's
statutory review under section 565.035, he requests that the sentence be
vacated. Second, he suggests his sentences are the product of passion
and prejudice arising from the state's repeated references to the
murders as “cold-blooded.” Finally, he disputes the adequacy of this
Court's proportionality review. He contends this Court fails to
consider all similar cases, does not maintain a complete database as
required by statute, and that there is a lack of notice of the proper
procedure followed by a meaningful opportunity to be heard. He claims
these last three errors resulted in the arbitrary and capricious
imposition of the death penalty and calls for the setting aside of the
Defendant argues that the circumstances surrounding
the murders evince a conflict of intense emotion and jealousy, making a
more lenient sentence appropriate. According to him, the death
sentence is excessive and disproportionate in light of the domestic
context from which the murders arose. To support this statement, he
cites Florida cases and three Missouri Court of Appeals decisions
involving murder in domestic violence situations where the death penalty
was not imposed. The issue, however, in proportionality review is not
whether any similar case can be found in which the jury imposed a life
sentence. Rather, the issue is whether the death sentence is excessive
or disproportionate in light of “similar cases” as a whole, considering
the crime, the strength of the evidence, and the defendant. Section
565.035.3(3). A sentence of death has often been imposed where the
defendant, as here, murdered more than one person. State v. Johnson,
968 S.W.2d 123, 135 (Mo. banc 1998), cert. denied, 525 U.S. 935, 119
S.Ct. 348, 142 L.Ed.2d 287 (1998); State v. Clemons, 946 S.W.2d 206,
233 (Mo. banc 1997), cert. denied, 522 U.S. 968, 118 S.Ct. 416, 139
L.Ed.2d 318 (1997). Moreover, a defendant's willingness to kill, and
kill again, is compelling and clear of conduct meriting even greater
societal concern than individual homicide. Such conduct particularly
warrants imposition of the ultimate punishment. State v. Rodden, 728
S.W.2d 212, 222 (Mo. banc 1987). In his view, the murders occurred in
the context of defendant finding out about Carmelita dating Tony
Reynolds. The record reflects a different crime. While he did shoot
Carmelita multiple times, defendant also murdered two other women having
nothing to do with any relationship he continued to have with Carmelita
beyond being in the same apartment. Shawnee pled for her life before
he killed her as her children sat in the next room. He ran out of
bullets and still tried to shoot James Johnson, a fourth person merely
present in the apartment, who heard the unloaded gun click as defendant
dry-fired it. Considering the statutory factors, capital punishment is
not excessive or disproportionate in the case at bar.
Defendant also claims the sentence imposed resulted
from passion and prejudice manufactured by the state's repeated
references to the murders as “cold-blooded.” This is merely a
transparent effort to resurrect an unpreserved objection that the
argument was improper. Such statements are not necessarily improper if
they result from a reasonable inference from the evidence. See State
v. Debler, 856 S.W.2d 641, 651 (Mo. banc 1993); State v. Basile, 942
S.W.2d 342, 353 (Mo. banc 1997), cert. denied, 522 U.S. 883, 118 S.Ct.
213, 139 L.Ed.2d 148 (1997). Referring to the murder of two women not
involved in any dispute defendant had with his ex-girlfriend, while one
pled for her life as her children were in the next room, as being
“cold-blooded” is a reasonable inference from the evidence.
After a careful review of the record, nothing
indicates that the trial court's imposition of the death sentence
resulted from the influence of passion, prejudice, or any other
arbitrary factor. See section 565.035.3. The jury found one
statutory aggravator in the murder of Arthea Sanders: that the murder
was committed while defendant was engaged in the commission of another
unlawful homicide. Likewise, it found one statutory aggravator in the
murder of Shawnee Murphy: that the murder was committed while defendant
was engaged in the commission of another unlawful homicide. The jury's
finding of these aggravaters is adequately supported by the evidence and
was surely the reason for the death sentence, not the state's
characterization of the murders.
Defendant also challenges the adequacy of the
proportionality review database, and claims he had a lack of proper
notice. These points are without merit. The purpose of the
proportionality review is merely to prevent freakish and wanton
applications of the death penalty. Johnson, 968 S.W.2d at 134. The
review performed sufficiently meets that standard. Id. Additionally,
claims contesting the adequacy of the database have also been dismissed.
Id. at 135. Finally, due process claims similar to defendant's have
been rejected by this Court. See id.
Having determined that none of Mr. Winfield's claims
on appeal have merit, the judgment is affirmed.
All references to statutes are to RSMO 1994, unless otherwise
Defendant made no offer of proof of the content of Crowley's report.
Defendant also did not call Sgt. Minaeff as a witness. Thus, the exact
contents of what was in the report or what Minaeff claims he was told by
Johnson is uncertain.
JOHN C. HOLSTEIN, Judge.