Supreme Court of Missouri

Missouri Supreme Court denies appeal in Sheena Eastburn case

The Joplin Globe Sun

June 25, 2013

JEFFERSON CITY, Mo. — A decision by the Circuit Court of McDonald County to not grant a new trial to Sheena Eastburn was upheld today in a unanimous decision by the Missouri Supreme Court.

Eastburn was sentenced in 1995 to life in prison with no chance for parole for killing her ex-husband.

Kent Gipson, Eastburn’s attorney, said today the court decided the appeal on a procedural issue.

He also said Eastburn has no grounds to take her case before the U.S. Supreme Court.

The court took no action on whether Eastburn would be impacted by a 2012 U.S. Supreme Court ruling that forbids a life sentence without parole for juveniles. Eastburn was 17 when she was found guilty of killing Tim Eastburn near Rocky Comfort in 1992.

Southwest Missouri woman serving life sentence for murder gets decision from state supreme court

By Dowe Quick - Koamtv.com

June 25, 2013

A McDonald County, Missouri woman serving a life sentence for murder gets no relief from the Missouri Supreme Court.

It's the case of Sheena Eastburn, convicted of participating in the 1992 murder of her ex-husband Tim Eastburn, when Sheena was 17 years old. She's currently serving a sentence of life in prison without the possibility of parole. However, in another case last year, the U.S. Supreme Court ruled that sentence is unconstitutionally cruel for crimes committed before age 18.

Eastburn's attorney hoped that ruling would open the door for the possibility of a new sentence in her case.

But on Tuesday, in a unanimous decision, the Missouri Supreme Court rejected the arguments.

In an interview two month ago, I asked Eastburn about this possibility.

"I came to that realization a long time ago and I gave it to God and I got peace," she told me at the time.

Reported April 30, 2013 by Dowe Quick

Arguments before the Missouri Supreme Court could have repercussions in dozens of old murder cases. Missouri is one of a number of states that impose a sentence of 'life without parole' for young offenders convicted of first degree murder.

In an Alabama case last year, the U.S. Supreme Court ruled that a sentence of "life without parole" is unconstitutionally cruel for crimes committed before age 18. Now, Missouri justices must decide what to do with the state's 84 juvenile offenders who are already serving that sentence.

On April 30th, the Missouri Supreme Court heard arguments in three cases that could set a precedent for the others. One of the cases before the court, concerns a 1992 murder in southwest Missouri. We took an in-depth look at that case in a special report we titled "A shot in the dark".

Part 1 - Life without parole

THE SCENE

Deep in the wooded hills of McDonald County, Missouri, beyond the overgrowth of untended vegetation, a stone home shows the decay from years of disuse. A retired Missouri Highway Patrol homicide investigator climbs the stairs to the front porch. Then, for the first time in more than 20 years, Miles Parks steps inside.

The living room and adjacent kitchen look have changed a bit since Parks was last here. Musty cardboard boxes and debris fill the spaces that once held furniture. Only dim light filters through the translucent plastic sheeting that covers the windows. But Parks can still envision the scene as it appeared in 1992. The window where a gunshot shattered a pane. The hole where a bullet lodged in a wall. On the floor between the two is the spot where a man died at the age of 22.

The victim had been shot through the window and Parks believes a teenager who was inside the home planned the whole thing.

Parks sums it up simply: "This was a brutal, cold-blooded, premeditated murder."

THE MURDER

The evidence had pointed to three teenage suspects: 18-year-old Matt Myers, 19-year-old Terry Banks and Banks' lover, Sheena Eastburn, the teenage, ex-wife of the victim. Sheena had been just 15 years old when she married Tim Eastburn, and was 16 when they divorced. Sheena was barely 17 on that November night in 1992 when her ex-husband was shot to death.

Investigators determined that both Myers and Banks shot Tim Eastburn and that either shot would have been lethal. In police interviews, the two gunmen and another witness maintained that Sheena plotted the murder.

Sheena claimed otherwise.

More than 20 years later Sheena Eastburn lives at the Missouri Correctional Facility in Chillicothe and still maintains she was never a killer. "There was no reason for Tim to die," Sheena says. "None."

Sheena says she agreed to participate in a robbery but never a murder. "I was supposed to go down there and get him out of the house, then we were going rob him for drugs and money."

Sheena says she and her ex-husband had maintained a sexual relationship, even after Sheena began seeing Banks. She says as Banks and Myers watched through the back porch window, waiting for the opportunity to steal from the home, Tim kissed her.

Sheena says Banks fired a shot in a moment of jealousy. The bullet pierced Tim's upper body.

"We both dropped and when we dropped I crawled around to where he was," Sheena pauses before continuing, "and I tried to stop the bleeding. There was nothing I could do."

Jurors didn't buy it.

Sheena was convicted of first degree murder, a crime that carries only two possible penalties in Missouri. Since the prosecution didn't seek the death penalty, the only sentencing option was life without parole.

"I still thought that I might get out of prison someday," Sheena says. "I didn't realize that life without parole actually meant life without parole."

THE ARGUMENTS

At a law office in Kansas City, Sheena Eastburn's attorney, Kent Gipson, prepares arguments to present before the Missouri Supreme Court. Gipson has been doing this type of work for close to 30 years.

"I think if you look across the spectrum of persons convicted of first degree murder, I'd say her level of culpability is among the lowest I've ever seen", Gipson says.

Gipson believes his client now has a real shot at freedom. In an Alabama case last year the U.S. Supreme court ruled that a sentence of life without parole is unconstitutionally cruel for crimes committed before age 18. Gipson believes the courts will decide that ruling must be applied retroactively for people like Sheena who are serving time for murders committed as juveniles.

If Missouri Supreme Court justices overturn Sheena's sentence, as Gipson believes they will, the judicial system will still have to determine the procedure for her re-sentencing. The process could go back to circuit court, either before a judge or jury; or an agreement could be worked out with the prosecutor for a negotiated sentence.

Since Missouri's first degree murder statute doesn't allow a penalty of less than life without parole Gipson will argue that Eastburn should be re-sentenced on the next lowest crime, second-degree murder. That would mean her possible sentence could range from a minimum of 10 years to a maximum of life in prison. But under the new guideline she would have a chance at parole.

"I think inevitably she will be given a parolable sentence and will be given a chance to get out of prison," Gipson says.

Sheena could get a revised sentence that makes her eligible for parole immediately, or only after serving several more years. In either case, Sheena might still have to convince a parole board to grant her freedom.

Miles Parks, the retired investigator, believes Sheena should remain in prison for the rest of her life.

"Sheena Eastburn was old enough to get a driver's license, old enough to get married, old enough to know the difference between right and wrong," Parks says. "What do you think is the appropriate punishment?"

LONGING

Twenty years of incarceration have taught Sheena Eastburn to temper her hope with caution.

"You never count on anything completely until it happens because you can't let yourself get your hopes too high and then be devastated all the time", Sheena says. "It's just a hard way to live."

Sheena gazes out the window of the prison visiting room to a view that barely changes -- the buildings of the prison complex, a fence, and a line of trees along a flat horizon.

"Nothing to see," she says.

The wider world out there has changed considerably over the past 20 years. Since inmates aren't given access to most electronic devices Sheena has never held a cell phone or surfed the Internet. She only recently made the transition from cassette audio tapes to CD's. iPods are out of the question.

Sheena says she most misses simpler pleasures: "...going down to the refrigerator in the middle of the night and being able to get what you want. Walking barefoot on grass somewhere that it doesn't say 'out of bounds'. Going outside after dark."

"Just taking time to experience free, fresh air," Sheena's smile broadens as she adds, "I know it smells different on the other side."

Part II - The Families

At the prison in Chillicothe Missouri, Sheena Eastburn recalls the day she heard the verdict.

"I really believed I was going to get second degree murder and I was accountable for that," Sheena says. "I was okay with that."

Sheena was stunned when jurors found her guilty on a more serious charge, murder in the first degree.

"All I could hear was my mother in the courtroom," Sheena says. "She was wailing."

SHEENA'S MOTHER

Nearly 300 miles to the south at a home in Stella, Missouri, Sheena's mother recalls the same moment.

"I couldn't control it," says Alica Bleavins. "When that's your child, and your only child, and your hands are tied."

Bleavins knew immediately that her daughter would be sentenced to life in prison without parole. Now, 20 years after the crime and 17 years after the verdict Bleavins says she still can't accept that the sentence is final.

A small room of Bleavin's home contains Sheena's bed, covered with various craft projects that Sheena has made in prison over the years. Bleavins, who talks with her daughter by phone almost daily, knows Sheena would never return to live permanently in the area where Tim's family still lives. But Bleavins takes comfort in preparing the home for the possibility that her daughter might someday visit.

The bedroom is a pale yellow, painted to represent the welcome of a yellow ribbon. The photos on display include one that shows Sheena wearing a graduation gown in prison, taken the day Sheena received her high school diploma as an inmate.

SHEENA TODAY

In the prison visiting room, Sheena points to a photo pinned to a bulletin board. It' shows Dottie, the large, mixed-breed dog that shares a cell with Sheena and her three roommates.

Sheena has a full-time prison job as an obedience trainer of rescue dogs. She's also a certified aerobics instructor, works with disabled inmates, and teaches victim impact classes.

"She's obviously not the same person she was when she was 17 years old," says Sheena's attorney, Kent Gipson. "I don't think any of us are."

Gipson says his client has won the support of prison staff who would probably go to bat for her if her case goes before a parole board.

"She is probably the most ideal candidate for parole any of them have ever seen," he says.

"Maturity and education, things like that, should be taken into account and that's all we're really asking," Gipson says, "that she be given the opportunity to prove to the parole board and other people that she deserves a second chance."

Although Sheena hopes for an eventual parole hearing, she knows the prospect angers some.

"Unlike for me, I can appeal the decisions to do things, Tim can not," Sheena says, then pauses before adding, "his family can not."

TIM'S BROTHERS

"My brother is still in the grave and will be from here on out," says Tim's brother, Leonard Eastburn. "She should be locked up the same way, forever."

Brothers, Leonard and Tommy Eastburn still operate the family feed mill where Tim worked until the day he died. The mill is only a mile or so from the home where Tim died. The home is now used only for storage and is owned by another brother, Bobby.

The brothers have followed Sheena's case closely enough to believe that she will eventually get a parole hearing, and ultimately, freedom. But if given the chance the brothers say they will tell a parole board how they feel.

"Because she's evil," Leonard says, emphasizing the final word.

"Why else would she want to kill somebody who's never done any harm to her?" Tommy adds.

"There are people in this world that are evil and they will hurt you, " Tommy says. "There's no rhyme or reason for it. They just will."

Sheena says she knows she could never take away their pain, but says she would like to tell Tim's family how sorry she is.

"I realized a lot of the things I'd done destroyed a lot of lives," Sheena says. "It wasn't even about my life. It was about my victim's family, my family, the boy's family."

I don't ever expect them to forgive me, because I don't know if I could either," Sheena says.

"But I hope that one day they find peace and I know that one day if they ever want to talk to me about what happened, that's okay."

Like her daughter, Alica Bleavins says she often thinks of Tim's family.

"I'm truly sorry for their loss," Bleavins says. "But we all lost that day. We all lost."

Postscript

The Missouri Supreme Court heard oral arguments in Sheena Eastburn's case on April 30. Her attorney expects a ruling in the next 30 to 60 days.

Like Sheena, gunman Terry Banks was sentenced to life in prison without parole. However, the federal and state Supreme Court rulings will not apply to Banks because he was over 18 at the time of the murder.

Matt Myers, who fired a second shot, plead guilty to second degree murder. Myers was sentenced to 67 years in prison and is currently eligible for parole.

McDonald County woman seeks new trial following 1995 murder conviction

By Wally Kennedy - The Joplin Globe Sun

July 29, 2012

JOPLIN, Mo. — Lisa Blevins smiles as she looks at a photograph of her young daughter making faces in the back seat of a car at their home in Stella. In another photo, she sees Sheena, her only child, in a wedding dress with the man who would become her husband, Tim Eastburn.

Her smile gives way to an expression of sadness.

“She was only 15 then. She was just a kid,’’ said Blevins. “Sheena was wild. I will admit that. For her and Tim, life was one big party.

“She got herself in situations that got her into a lot of trouble. There were a lot of things that happened to her as a child that she never told me.

“I just wish I could have done more for her when I had the chance. Maybe things would have turned out differently.’’

About two years after the wedding photo was taken, Tim Eastburn was dead. Prosecutors claimed that Sheena, who turned 17 just 50 days before Tim was killed, was the mastermind of a plot in which she enlisted the aid of two accomplices to shoot Tim, then 22, for his money and drugs.

The Eastburns had divorced two months before the shooting, which occurred on Nov. 19, 1992, at Eastburn’s rural home at Rocky Comfort. But they were still seeing each other.

Prosecutors told jurors during her trial on July 20, 1995, that Sheena had lured her ex-husband into the kitchen of his home.

On the back porch, Terry Banks, Sheena’s new boyfriend of two weeks, and his friend, Matthew Myers, waited for an opportunity to shoot Tim through a kitchen window with a rifle the men had stolen two days before in a burglary of Tim’s home.

With Sheena standing beside him and just after he kissed her, Tim was shot in the head by Banks. Myers came inside with the rifle and shot him again to “finish him off.’’

During the trial, prosecutors introduced nearly 60 items of physical evidence, including the rifle, bullet fragments taken from Tim’s body, and dozens of photographs of the murder scene as well as his autopsy.

But it’s what wasn’t brought out during the trial that is now the issue.

Jurors were never told about IQ tests that raised questions about Sheena’s capacity to organize a killing, or that one of her defense lawyers believes they were not prepared for the trial.

Nor were they told that Sheena had allegedly been raped by a McDonald County jailer, and may have been taken by county officials for an abortion — information her lawyers could have used to negotiate a lighter sentence.

Instead, jurors were told that Sheena’s relationship with Banks and Myers was not unlike that of “a Judas goat’’ — goats that are trained to lead sheep to the slaughter. The jury of six men and six women deliberated an hour and 10 minutes before finding Sheena guilty of first-degree murder. The jury assessed a sentence of life in prison without parole.

Jealous rage

But Sheena Eastburn and her attorney, Kent Gipson, of Kansas City, have a different take on what happened that night in 1992. They have filed an appeal for a new trial based, in part, on new evidence that they claim the jury did not hear. One of Sheena’s defense attorneys at the time now acknowledges that his client received ineffective counsel during her trial.

According to their version of the story, in the period immediately before the murder, Banks, Sheena Eastburn and Myers were using lots of drugs. They were all high on marijuana, alcohol and meth in the days leading up to the murder. Sheena had not slept for five days.

Despite their divorce, the Eastburns maintained an ongoing sexual relationship. Anytime Sheena needed money or drugs, she visited her ex-husband, who gave her what she wanted in exchange for sex. The Eastburns also had made plans to be remarried in the week before he was killed.

When Sheena met Banks two weeks before the murder, she began a sexual relationship with him, too. Banks, described as extremely jealous, possessive and violent in court papers filed seeking the appeal, was upset about Sheena’s plans to return to her ex-husband.

Two days before the murder, Banks, Myers and another man, Dennis “D.J.’’ Johnson, burglarized Tim Eastburn’s home, taking an AK-47 rifle. Sheena claims she learned of the burglary the day of the murder when she saw Myers with the rifle. She convinced them not to sell the gun, but to return it because the serial number on it could be used to trace it back to Tim.

According to Sheena’s statement to police at the time, the three had planned to rob Tim of drugs and money, and leave the rifle at the house. When they found Tim at home, Sheena attempted to get him out of the house by asking him to take her for a ride on his motorcycle, but it was late and raining outside.

Gipson, in his appeal, contends that Banks flew into a jealous rage and fired the shot when he saw Tim and Sheena kiss.

‘I crawled to his side.’

“I am definitely guilty of second-degree murder,’’ Sheena said during a recent interview at the women’s prison in Chillicothe. “The intent was to take back the gun that was stolen. They could track it down.

“I did not know they had stolen the gun two days prior. I talked about it with Tim. He said: ‘If I can get my gun back, I will leave it alone.’ I decided to take the gun back. They would steal the drugs and money when I got him out of the house.

“It was raining so we couldn’t go on a motorcycle ride. They were on the back porch with the rifle. It was loaded.

“All of sudden, I heard a big bang. We both hit the floor. It was so loud,’’ she said.

With tears coming to her eyes, Sheena said, “I crawled to his side. He was laying there and he was bleeding. I grabbed a towel and a sock, and kept trying to stop the bleeding, but I couldn’t. There was nothing I could do. I tried everything I could do to save him.

“I told him I loved him and the last thing he said was: ‘Father forgive me for all my sins.’ Terry (Banks) grabbed me and took me out of the house. Terry fired the first shot. The second shot was by Matt.’’

About her relationship with Tim, Sheena said, “There were days when he loved me more than you could ever imagine and there were other days when we just fought. I was 15 years old when we got married. He was like a father and a husband to me. He was a wonderful man.

“For somebody with a case like this, the prison is not really the prison. It’s always going to be inside. You will always be in prison. It does not matter whether you are free or locked up, I think you will always have that inside.’’

Witness Testimony

All three of them gave full confessions to police outlining their roles in the killing. Myers plea bargained and received a total sentence of 67 years on a reduced charge of second-degree murder. He is being held in a state prison in Potosi, but is already eligible for parole. Banks went to trial and was convicted of first-degree murder. He received a sentence of life without parole and is currently in prison at Potosi. Sheena also was convicted of first-degree murder and sentenced to life without parole.

In the appeal for a new trial, Gipson argues that the only evidence presented at Sheena’s trial suggesting there was any premeditated plan to murder Tim Eastburn was from Dennis ‘‘D.J.’’ Johnson, who became a prosecution witness in exchange for an agreement that gave him probation for the charges arising from his involvement in the burglary of Tim Eastburn’s home.

Johnson’s testimony — that he overheard a conversation between Myers, Banks and Sheena Eastburn on the day of the murder in which she claimed that she had been raped by her ex-husband and that she wished he was dead — was bought and paid for by the prosecution’s promise of freedom, according to documents Gipson has filed seeking the new trial. At her trial, Sheena’s public defenders did not make any effort to discredit Johnson’s testimony.

Gipson said the defense at the time also failed to present evidence that he says indicates Sheena was under the control and domination of Banks and that she did not have the mental capacity to mastermind a plot to kill her ex-husband. A pre-trial mental evaluation in the possession of her public defenders at the time of her trial revealed that she had emotional and mental problems, and had an IQ that may have been as low as 80, which is borderline mental retardation.

Gipson alleges that it was Banks, in a fit of jealous rage, who transformed the robbery into a murder.

To bolster that position, Gipson points to Banks’ escape in November 1999 from a maximum-security prison at Cameron in which he had enough domination over a female prison guard to persuade her to bring him a guard’s uniform so that they could escape together.

When the escape occurred, Blevins said about her daughter at Chillicothe: “They put her on lockdown. They put her in the hole. They were going to leave her there until he was captured. The FBI, well, they were all over Sheena. She was the one who told them his dad was in Texas.’’

Banks and the guard who helped him escape were later apprehended near the home of Banks’ father in Texas.

Telltale clock

Sheena Eastburn would be held in jail for nearly three years before her trial. Don Schlessman, sheriff of McDonald County at the time, said she proved to be an expensive prisoner.

“She had been in Barry County as a prisoner. When we got the new jail done here, I moved her back,’’ said Schlessman. “She was costing me a lot of money to hold her in Barry County. She was all screwed up. She was heavily medicated.’’

The new McDonald County jail had only one jailer on duty at night — Terrie Zornes, who was 31 at the time.

According to Sheena, Zornes allegedly took her into the property room of the jail and there he raped her two times in 1994, although Schlessman said the sex was “consensual.”

Sheena was a minor in the jail under the authority and control of Zornes.

Said Sheena: “I told my mother that the officer had taken me to a property closet and had sex with me. She flipped out at that point. They locked me down in my cell. Cut off my phone. I wasn’t allowed to talk to anybody. They cut off my visitors.’’

Schlessman said he learned of the incidents from Sheena’s mother, who provided the sheriff with her daughter’s underwear and a towel that she thought might have Zornes’ semen on them.

Activity at the property room was recorded on a surveillance tape. Schlessman said he checked the tape for anything suspicious involving Zornes. He said he did not see anything at first, but a second review of the tape showed something odd with a clock on the wall outside of the property room.

“The hands on the clock jumped forward. A clock doesn’t do that,’’ he said. He believes Zornes tampered with the tape, deleting any evidence that he had taken Sheena to the property room.

About the sex between Zornes and Eastburn, Schlessman said, “It was consensual.’’ When he was asked how he knew that and to define what that meant, he only repeated, “It was consensual.’’

Sheena, in her prison interview, said, “They kept trying to tell me it was consensual. They said: ‘You know you wanted it. You know you miss it.’ It was not like I fought it because there was no way I could have stopped him.

“I have experienced sexual abuse all of my life. I have been raped before in a violent way. After you have been in that situation, you just learn it’s easier to let it go and not fight.’’

Blevins said, “The sheriff came to the Eastburns’ feed mill in Rocky Comfort. He spoke with me and Jigs Eastburn, Tim’s father. We told him they had a problem in the jail. Jigs told him they were using Sheena as their personal whore and he wanted it stopped. That’s when Don went back to the jail. That’s when he pulled the tape.

“I told him I had the evidence — the panties and the towel — and he told me to bring that to the jail. He said they would take it to Missouri Southern in Joplin because they had a lab to test for DNA and that he would get back with me. He never did.

“We also told him the jailers were giving the girls drugs and alcohol out of the evidence room.’’

Schlessman said he presented the tape to Joseph Schoeberl, who was the county’s prosecuting attorney at the time. Schlessman said he sent the towel and panties to the crime lab for analysis.

“I told Schoeberl about it and asked him if he would charge Zornes with misconduct of a jailer,’’ said Schlessman. “I did my job.’’

Schoeberl, now an associate circuit court judge in Jasper County, said, “Here’s what I remember: Schlessman had evidence of some tampering with a jail clock and there had been an allegation of impropriety. I told Schlessman there was sufficient evidence to terminate his (Zornes’) employment. But to charge him, I would need DNA from his semen or an eyewitness. I needed corroborating evidence.’’

He said he was concerned with Sheena’s believability as to what happened without corroborating evidence.

When asked whether charges were not filed against Zornes because Sheena’s defense attorney could have used that in a plea deal, Schoeberl said, “Yes, they could have used that in a plea deal. But that had nothing to do with it. We did not have enough evidence to charge Zornes.’’

Schlessman said the towel and panties came back from the crime lab with no evidence that would implicate Zornes. Eastburn’s mother and other observers at the time said Zornes was removed from the jail and briefly served as a road deputy. Schlessman denied that, and said, “I did not promote him to a road deputy. I fired his ass.’’

Schlessman said he corrected the problem in the jail by convincing the McDonald County Commission to hire another jailer for night duty.

Abortion ALLEGATION

The alleged rapes occurred in February 1994. A short time after that, Blevins got a call from a matron at the jail who asked her to bring a pregnancy test kit to the jail. Blevins was never told the results of the test.

“After I did that, they took her to the county doctor at the time,’’ said Blevins, who did not feel comfortable disclosing the doctor’s name or where he lived in the county.

“They took her to the doctor that morning. That night, I got a call. She had been taken to the hospital in Neosho. She was hemorrhaging (from her vagina). They said for me to come alone to the emergency room at the hospital. They told me they were doing something to stop the bleeding. They would not tell me anything else.

“I spent the night in the hospital. I stayed with her. She was out of it most of the time. She would come in and out. I don’t know if she really knew what was going on and what had happened to her. It was clear to me she had become pregnant and that she had an abortion — two and two makes four.’’

Schlessman said, “That never happened. She had female problems.’’

Blevins replied, “She had never had those problems before.’’

Sheena, in her prison interview, said, “I was sent to a doctor’s office. The next thing I know later on was that I was in a hospital having surgery. Nobody told me I was pregnant or not pregnant.

“I don’t remember if anything happened. At the time, I was so out of it. I never speak about it. It would not be fair to say it happened. I want to be as honest as possible. My mother is convinced it did. I cannot honestly say that because I don’t really remember.’’

When Eastburn was returned to jail, Blevins said, “They put her on birth-control pills after that. I asked: ‘Why is she on birth-control pills?’ I never got an answer.’’

‘Hush, hush’

Blevins said she remembers what happened to her daughter as if it had happened yesterday.

“When you live that, you don’t forget it. It’s absolutely embedded in your head and your heart,’’ she said. “I don’t have to lie. I lived it every step of the way.

“After I worked at the feed mill, I visited Sheena from 1 to 3 p.m. every day at the jail. I was very much in her life. She was a kid. She was scared to death and drugged up on anti-anxiety medication. She did not know what was going on,’’ she said.

“The deputies intimidated me to no end. I would sit in the office area there and they would say: ‘You need to just forget this.’ They would talk about murder suspects in jail who tried to run and got shot, or they would talk about someone somewhere who had hung herself because she was up on a murder charge.

“They wanted that all hush, hush. They never gave Sheena an opportunity to file anything. They told us it was over. They said he (Zornes) was married and his wife was going to have a baby. Why would she want to tear up a happy home?

“These were veiled threats that if she did not shut up, something would happen to her. They did not come out and say it, but you knew where they were going with it. That’s what I was afraid of. You don’t forget those things.’’

Blevins worked at the feed mill and helped the Eastburns, Jigs and his wife, Ellen, because they had lost their son.

“I felt so bad for the Eastburns. I cleaned the house where Timmy was killed. I did not want them to see that. I completely redid the whole inside of that house for them.

“My husband and I worked for Jigs and Ellen — whatever they needed done, we did, for the next 13 years because we felt so bad they had lost their child. The murder had taken their hand away from them. We were close with the Eastburns for the next 13 years.

“All Jigs would have to do was call us and we would go and do whatever he needed to have done — bring in the cattle, whatever. We were just four parents trying to get through it.’’

Jigs Eastburn died in 2007. Ellen Inez Eastburn died last year.

Zornes’ deal

The truth about the alleged rape of Eastburn came out last year after Zornes was charged with making sexual advances to a 14-year-old McDonald County girl. That case was investigated by Lorie Martinez-Howard, a detective with the sheriff’s department, and who had worked with Schlessman.

Howard learned of the alleged rape of Eastburn through Schlessman, who works as a reserve officer with the department. Howard said Schlessman was aware of Sheena’s plan to appeal her conviction on the murder charge.

Said Howard: “I had a meeting with her over the phone. She was in a secure room at the prison (in Chillicothe). I had told her about the allegations I had. I asked her a little bit about the history of her case and she gave me the story. It matched perfectly with what I had in the case file. She told me that she was being held on a murder charge at the time and that nothing had come of the other.

“I told her if she would help us we would be able to file a charge against him (Zornes) for what had happened to her. She agreed to testify against him.’’

Sheena, in her prison interview, said, “I felt relieved that somebody finally believed me.”

The videotape showing the clock also was in the case file, which was still in storage in the evidence locker, Howard said.

According to a probable cause statement Howard filed last year after her investigation, “Terrie (Zornes) had complete authority over inmate Sheena Eastburn and her environment and welfare at the detention center. Sheena was ordered into the property room for sexual purposes and due to her confined status lacked the ability, authority and mental capacity to resist for fearing for her safety and well being.”

Jonathan Pierce, county prosecutor, filed a forcible rape charge against Zornes in 2011 for what allegedly happened with Sheena in the jail. Zornes, in a plea deal, entered a guilty plea involving the 14-year-old girl in exchange for a dismissal of the rape charge involving Sheena. Zornes was sentenced to four years in prison.

Sheena said, “I felt more joy that the young girl would not have to get on the stand. It helped me to think I was helping someone else because no one helped me. Justice has been done.’’

‘We weren’t prepared’

Gipson, Eastburn’s attorney, claims he reached a deal with Pierce to reopen the first-degree murder conviction against Sheena. Gipson’s goal was to have the conviction overturned, citing inadequate representation and abandonment of counsel at the time of her trial. Gipson wanted Sheena’s conviction reduced to second-degree murder so that she could be sentenced to life in prison with the possibility of parole.

Two hearings were held on the motion to reopen the case.

In the first hearing in early October of last year, Eastburn testified that she had no lengthy meetings with either of her public defenders before her trial in 1995. She said she had “no understanding of what was happening in court” at the time of her trial.

Also testifying before Circuit Judge Tim Perigo in McDonald County Circuit Court was Frank Yankoviz, who was Eastburn’s assistant public defender at the time of the trial. Yankoviz told the court that he became involved in Eastburn’s defense about two weeks before the trial as an assistant to Victor Head, district public defender. He said Eastburn’s case was his first major felony case.

Gipson asked Yankoviz whether he thought Eastburn received a fair trial. Yankoviz said, “No.” When he was asked whether he was in over his head at the time of the trial, Yankoviz said, “Yes.”

Yankoviz also said he felt “worse about this case than any other case” in his 20-year career as a public defender.

Tests showed that Sheena was competent to stand trial, but that she was suffering from post-traumatic stress disorder because of sexual assaults at age 13. She also was suffering from depression. Her first IQ score was a 91. Her second score was an 80. Mild mental retardation is an IQ of 70 to 75. Yankoviz said he was never informed about the results of the IQ tests. Had he known about the test results, Yankoviz said, he could have shaped a defense strategy around diminished capacity.

“In hindsight, we weren’t prepared to try this case,” said Yankoviz.

Second hearing

In the second hearing held earlier this year, Blevins said: “We told the sheriff and her public defender that she had been raped. I told them I could not end up raising a baby. We wanted it stopped.”

Blevins told the court that she and Jigs Eastburn went to Head, who was the public defender and now an associate circuit judge in Barry County, and alleged that Sheena had been raped in the jail. Head testified that he did not recall that meeting or that anyone had ever told him that Sheena had been raped in the jail before her trial.

Gipson challenged Head’s representation of Sheena, saying he missed or ignored opportunities to convince the jury that Sheena was guilty of second-degree murder instead of murder in the first degree.

“If you had known that — that she had been raped — you could have used that to her advantage,” Gipson said. “You could have reached a plea deal to keep this ugly secret quiet.”

Blevins said, “When we told him (Head) that, he told us the sheriff is going to handle it. That was the answer we got.”

Continuing his attack of Head’s representation of Sheena, Gipson said the IQ tests also could have been used to show that Eastburn was incapable of being the mastermind behind her ex-husband’s death as the prosecution had contended.

Head said he had significant contact with Sheena before the trial and that there was no indication she was mentally retarded. He said it was evident that she had emotional problems at the time.

Gipson produced a document that Head had in his possession at the time of the trial that showed Sheena had been psychologically evaluated at age 13 in 1989 at St. John’s Regional Medical Center in Joplin. The report said she was “excitable, easily led by others, and given to action that was guilt free.” Gipson also claims Head could have used that report to show that Sheena was “under the substantial domination” of Banks, the gunman who had stolen Tim Eastburn’s rifle and used it to kill him.

The report also said Sheena had been raped as a child and that she was suffering from post-traumatic stress disorder. Gipson asked Head whether he recalled that. He said he did not.

Gipson also asked Head why he did not call Sheena’s psychological evaluator to testify about the rape or that she was suffering from PTSD. Head said he could not recall why he did not call the evaluator to the witness stand.

Head, who repeatedly said he could not recall details of the case, said: “I cannot say whether that could have helped in her defense. We did the best we could do at trial. I can’t say what would have happened if we might have changed this or that. We spent countless hours on the case.”

At both hearings, Pierce has disputed a contention by Gipson that he agreed to reopen the case for a new trial. Gipson has accused Pierce of backtracking on his position.

Victim’s family

Surviving members of the Tim Eastburn family, Bobby Eastburn, Leonard Eastburn and Susie Jones, do not want the case reopened.

Bobby Eastburn, who lives near Rocky Comfort, said, “We have been keeping track of it. We don’t like what is going on. She worked hard to get in there and we don’t want her out of prison.

“My brother won’t get a second chance. She’s apparently trying to get a second chance. They say she was suffering from PTSD because of her childhood and that she was not very smart. She manipulated the situation to kill Tim. She was the mastermind behind it. She was intelligent enough to set the whole situation up.’’

While the appeal was happening, the U.S. Supreme Court issued a decision that might also impact the case. The court said laws allowing juveniles under age 18 who were convicted of murder and sentenced to life in prison without parole violate the Eighth Amendment’s ban on cruel and unusual punishment. Sheena Eastburn was 17 when the murder occurred.

Perigo, the circuit judge in McDonald County, has asked both attorneys to file with the court finding of facts on the motion to reopen Sheena’s trial, and whether her conviction should be overturned in light of the Supreme Court decision. He is to issue a decision on Aug. 21.

Thinking about freedom

What would she do if she were to be paroled from prison?

Said Sheena: “I would go to school to become a certified personal trainer. I would love to minister to juveniles and help them know that the choices we do make have a consequence. I really do want to help people. I know that sounds crazy. But I want to help and let them know there are other choices out there no matter what your life is like because I had a bad life and childhood, but I still had choices. I did not realize that then.’’

While in prison, she has taken every class that has been offered to educate and improve herself.

“I’m an aerobics instructor and a senior dog trainer. I have trained 11 dogs for veterans. I have a dog named ‘Gus’ now. He’s a little piece of freedom for me,’’ she said.

“I teach about the impacted victims of crime, child abuse, sexual abuse, domestic violence and homicide. Each chapter tells you what the consequences are for your crime and that we leave a slew of victims in our wake.

“I speak with women who are on probation to explain to them what it is like to be in prison. I try to better myself all of the time,’’ she said. “If I had remained the same, then I would have learned nothing from this terrible tragedy. So now, though I cannot bring him back, I have changed my life in memory of Tim.

“You know, everybody says they find God in jail, but He has absolutely changed my life. These doors have opened because God has seen this change in me.’’

Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant. Jeremiah W. (Jay) Nixon, Attorney General, Jill C. LaHue, Asst. Atty. Gen., Jefferson City, for respondent.

A jury found Appellant, Sheena Renea Eastburn, guilty of murder in the first degree, § 565.020, RSMo Cum.Supp.1992, and assessed punishment at imprisonment for life without eligibility for probation or parole.   The trial court entered judgment per the verdict.   Appellant brings appeal 20604 from that judgment.

While that appeal was pending, Appellant filed a motion to vacate the judgment and sentence per Rule 29.15.¹  The motion court denied relief after an evidentiary hearing.   Appellant brings appeal 21163 from that order.

We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.

Appeal 20604

Appellant's brief presents three points relied on, two of which-the first and third-pertain to this appeal.

The first point avers the trial court erred in failing, sua sponte, to “remove for cause” two members of the venire.   The third point maintains the trial court erred in overruling Appellant's hearsay objections to testimony of three State's witnesses.

The victim was Tim Eastburn.   He married Appellant November 15, 1990.   The marriage was dissolved September 17, 1992.   The murder occurred two months later, on November 19, 1992.

Appellant was represented at trial by a public defender and an assistant public defender.   For convenience, we henceforth refer to them as “Defender” and “Assistant Defender,” respectively.

Appellant's first claim of error arises from voir dire.   Assistant Defender conducted voir dire for Appellant.   One of his statements to the venire was:

“Sheena Eastburn is presumed innocent unless and until you all believe that she's been proven guilty beyond a reasonable doubt.   She doesn't have to take the stand, she doesn't have to testify.   In fact, she doesn't have to put on any evidence at all, and I as her attorney or [Defender] as her attorney, we don't have to put on any evidence.

Is there anybody who believes that we should put on some evidence?”

Several members of the venire responded.   Among them were Scott Woodworth and Alta Royal.   The transcript shows:

“Venireman Woodworth:  I do.

[Assistant Defender]:  ․ you're ․ Mr. Woodworth?

Venireman Woodworth:  Yeah.

[Assistant Defender]:  What do you believe, sir?

Venireman Woodworth:  Believe it should be some explained.

․

[Assistant Defender]:  ․ Mr. Woodworth, are you expecting the defense to prove their [sic] innocence?   Are you expecting us to prove Sheena Eastburn's innocence?

Venireman Woodworth:  Yeah.

[Assistant Defender]:  Okay. Anyone else agree with Mr. Woodworth?

․

[Assistant Defender]:  ․ Ms. Royal, you're shaking your head?

Venireman Royal:  Yeah, I agree.

[Assistant Defender]:  You expect us to prove that she's innocent?

Venireman Royal:  Yeah.”

At the conclusion of voir dire, Assistant Defender challenged numerous members of the venire for cause ² ;  however, Assistant Defender lodged no challenge for cause against either Woodworth or Royal.   Appellant thereafter used her peremptory challenges (§ 494.480.2(2), RSMo 1994) against members of the venire other than Woodworth and Royal.   Consequently, Woodworth and Royal served on the jury.³

The only complaint in Appellant's motion for new trial regarding Woodworth was:

“The Court erred ․ when it allowed venire person ․ Woodworth to be seated on the jury after he stated that he believed defendant should testify to prove her innocence.   As defendant was required to use the majority of her peremptory challenges on [other] venire persons who should have been struck for cause ․ defendant was unable to exclude venire person ․ Woodworth[.]”

The only complaint in Appellant's motion for new trial regarding Royal was identical to the complaint regarding Woodworth.

Appellant's first point relied on reads:

“The trial court plainly erred in failing to sua sponte remove for cause venirepersons ․ Woodworth, and ․ Royal, because Appellant was denied a jury of twelve unbiased and qualified jurors, in violation of her rights to due process of law and to a fair trial ․ in that Woodworth and Royal said they expected the defense to prove Appellant's innocence, even though they were told that they were required by law to presume Appellant innocent, and that the State had the burden of proving her guilty beyond a reasonable doubt.”

There is a subtle difference between the complaint about Woodworth and Royal in Appellant's motion for new trial and the complaint about them in Appellant's first point on appeal.

The complaint in the motion for new trial was that Woodworth and Royal stated they believed Appellant should testify to prove her innocence.   The complaint in the first point on appeal is that Woodworth and Royal said they expected the defense to prove Appellant's innocence.

As set forth infra in our account of the evidence, Appellant testified at trial regarding her role in the events preceding the murder and her actions and intent at the scene of the murder during its occurrence.   In that respect, the instant case is like State v. Hadley, 815 S.W.2d 422 (Mo. banc 1991).

In Hadley, the members of the venire were asked if any of them believed the accused had to prove his innocence.  Id. at 423.   One venire member replied, “Well, I feel that if he doesn't take the stand that I wouldn't be able to judge it impartially.”  Id.  On appeal, the accused maintained the trial court committed plain error by failing to exclude the venire member sua sponte.  Id.  The Supreme Court held:

“Any potential miscarriage of justice in having [the venire member] on the jury was entirely dependent upon defendant failing to testify.   From the outset, it was apparent defendant would testify.   His was the only testimony supporting the claim of self defense.   When defendant took the stand, the possibility of prejudice disclosed by [the venire member's] voir dire examination evaporated.   In any event, a trial court is under no duty to strike a juror on its own motion, even though the juror states on voir dire that if the defendant fails to testify the juror would be more likely to convict.”

Id. at 424[2].

It is clear from Hadley that we cannot convict the trial court of reversible error in failing to remove Woodworth and Royal from the venire sua sponte merely because they stated they believed Appellant should testify (the complaint in Appellant's motion for new trial).   Perhaps aware of this, Appellant claims on appeal that the trial court should have removed Woodworth and Royal from the venire sua sponte because they said they expected the defense to prove Appellant's innocence.

Appellant concedes her claim on appeal is not preserved for review in that neither of her lawyers challenged Woodworth or Royal for cause at trial.   Appellant asks for plain error review per Rule 30.20.

To prevail under plain error review, an accused must demonstrate that manifest injustice or a miscarriage of justice resulted from the alleged error.  State v. Nunley, 923 S.W.2d 911, 920[15] (Mo. banc 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997).   We find no basis for plain error relief here.

First, Missouri courts have steadfastly held a trial court is under no duty to remove any venire member sua sponte.  State v. Overby, 432 S.W.2d 277, 279[8] (Mo.1968);  State v. Johnson, 637 S.W.2d 290, 291[4] (Mo.App. S.D.1982);  State v. Dodson, 595 S.W.2d 59, 60[3] (Mo.App. E.D.1980);  State v. Lane, 551 S.W.2d 900, 907[18] (Mo.App.1977);  State v. Gamache, 519 S.W.2d 34, 41[16] (Mo.App.1975).

Second, Appellant cites no case where an appellate court, on plain error review, convicted a trial court of reversible error in failing, sua sponte, to remove a member of the venire.   We suspect the absence of such a case stems from the policy articulated in State v. Sumowski, 794 S.W.2d 643, 647 (Mo. banc 1990):

“The policy for requiring a contemporaneous objection is to minimize the incentive for sandbagging in hopes of an acquittal and then, after an unfavorable verdict, challenge the selection of the jury which convicted.”

Third, Appellant claimed in the post-conviction proceeding that her lawyers rendered ineffective assistance in failing to challenge Woodworth and Royal for cause.   As we shall explain more fully when we reach appeal 21163, the motion court rejected that claim.   Appellant does not, in appeal 21163, attack the motion court's rejection of the ineffective assistance claim regarding counsels' failure to challenge Woodworth;  Appellant attacks only the motion court's rejection of the ineffective assistance claim regarding counsels' failure to challenge Royal.

For the reasons set forth infra in the segment of this opinion addressing appeal 21163, we hold the motion court's findings as to Royal are not clearly erroneous.   Inasmuch as Appellant is receiving no post-conviction relief because her lawyers failed to challenge Woodworth and Royal for cause, it would be incongruous to hold that manifest injustice or a miscarriage of justice occurred as a result of the trial court's failure to remove Woodworth and Royal from the venire sua sponte.   Appellant's first point is denied.

As reported earlier, Appellant's third point (the only other claim of error in appeal 20604) avers the trial court erred in allowing three State's witnesses to relate hearsay to the jury.   Although the point does not challenge the sufficiency of the evidence to support the verdict, resolution of the point requires an account of the evidence.   Viewed favorably to the verdict, State v. Grim, 854 S.W.2d 403, 411[5] (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993), there was evidence from which a reasonable juror could have found the following facts.

On November 17, 1992 (two days before the murder), Appellant's ex-husband, Tim, was residing alone in a house on route JJ, two and a half miles south of highway 76 in McDonald County.   About 3:30 p.m. that date (November 17), Dennis Johnson, Terry Banks and Matt Myers arrived at Tim's house in an old black Ford pickup.   Tim was not there.

The trio broke into Tim's house through the back door and stole sundry items, one of which was a rifle resembling an “AK-47.”   A clip was in it.

Unknown to the trio, a neighbor of Tim, William Finan, saw the pickup enter Tim's driveway.   Although Finan could not see what occurred at the back of Tim's house, Finan heard a “bang” which sounded like “kicking of a door or something.”   Using a telescope, Finan spotted the license number on the pickup and wrote it down.

The trio departed Tim's residence in the pickup.

Approximately two hours later, Finan saw Tim arrive home.   Finan told Tim what he had seen.   Over Appellant's hearsay objection, the trial court permitted Finan to testify that Tim remarked, “My ex-wife has come to clean me out.”   That ruling is the first of the three complained of in Appellant's third point.

Finan informed Tim of the pickup's license number;  Finan also furnished the number to law enforcement officials.

The next day (November 18), Edward Brickey, a cousin of Matt Myers, saw Myers, Terry Banks and Appellant.   Myers and Banks showed Brickey the rifle they had stolen from Tim's residence.   Brickey recalled that Myers had “a black truck.”

Brickey saw Myers, Banks and Appellant again “about midday” the following day (November 19).   Myers, Banks and Appellant asked Brickey to let them use a light blue 1978 “Trans Am” he was driving.   Brickey agreed.   When the trio entered the vehicle, they had the rifle Brickey had seen the previous day.

Brickey did not see the vehicle again until 11:00 a.m. the ensuing day (November 20).   At that time, it was parked, unoccupied, at the home of Myers's father.

Meanwhile, about 2:55 p.m. November 19, Tim and his father, Melvin Eastburn, were at Melvin's place of employment.   The telephone rang.   Melvin picked it up.   He recognized Appellant's voice;  he handed the phone to Tim.

Melvin paid no attention to Tim's end of the conversation.   However, over Appellant's hearsay objection, the trial court permitted Melvin to testify that after the phone call, Tim said Appellant was “coming down tonight and that ․ she wanted to be alone ․ they was going to watch a couple movies.”   That ruling is the second of the three complained of in Appellant's third point.

Dennis Johnson, the third member of the trio that stole the rifle from Tim's residence, resided in a trailer on “71 Alternate outside of Joplin” at the time of the events recounted in this opinion.   Appellant and another woman also lived in the trailer.   Matt Myers and Terry Banks lived in an apartment at Duenweg, a few miles from Joplin.

Johnson, Myers, Banks and Appellant were at the trailer on November 19.   They departed in the borrowed Trans Am en route to a Joplin bar, ten to twelve miles distant.   During the journey, Johnson saw the stolen rifle.   He recalled Banks was holding it.

Asked whether Appellant said anything about Tim on the way to the bar, Johnson replied that Appellant “made the comment that Tim had treated her badly in the past and that he had a lot of drugs and money and stuff there and that she wished that he was dead.”   Johnson's testimony continued:

“Q. Did the others respond to that?

A. Yes, they did.

Q. What did they say, if anything?

A. I don't remember which one said anything first, but the comment was made, ‘Well, I will kill the ․ son of a bitch.’

Q. What did the-was there any other comment?

A. Yes. The other said, ‘Well, if you don't, I will.’

Q. ․ Did the defendant say anything else about trying, about harming Tim Eastburn?

A. Yes.   She said that on some occasions that she would stay at Tim's house, and she would sleep with Tim, and she would get money for clothing and et cetera, and that she could put, go into the house and have him positioned by a window to where they could get a clean shot at him.

Q. Was it your impression from this conversation that the defendant was attempting to talk the other two into assisting her to kill Tim Eastburn?

A. Yes, sir.”

Upon arriving at the bar “about dusk,” Johnson exited the Trans Am. He next saw Myers, Banks and Appellant about two hours later, but overheard no conversation between them regarding Tim.

While those events were unfolding, Tim was having dinner at a cafe.   Rhonda Daniels, a cafe employee, had a conversation with Tim “between 6:30 and 7:00.”   Over Appellant's hearsay objection, the trial court permitted Daniels to testify that Tim said “Sheena had called and wanted him to be home alone.”   Daniels added:  “He said he was going to take home two pieces of pie with him, one for him and one for Sheena, and ․ he had to get home, ‘cause he thought maybe she'd be there after 9:00.”   That ruling is the third of the three complained of in Appellant's third point.

About 10:30 p.m. that date (November 19), Tim's neighbor, Finan, saw an old car, southbound, pause at Tim's driveway.   The vehicle then proceeded down the road, turned around, came back north, and extinguished its lights.

Finan saw Tim's porch light illuminate.   Ten or fifteen seconds later, the light “went back off.”

Some five minutes after the car lights went off, Finan heard a gunshot.   A short time later, he heard a “muffled noise” from Tim's house.   Finan then heard voices but could not understand the words.   After that, he heard the car start.

It is inferable from the record that Finan telephoned the McDonald County sheriff's office.

Deputy Sheriff Mathis and another officer arrived at Tim's house about 11:12 p.m.   Mathis observed a broken window in the back of the house and footprints on the back porch steps.   He also saw a spent shell casing on one step.

Mathis then went to the front door, looked in, and saw Tim on the floor.   Mathis kicked the door in, entered the house, and determined Tim was dead.

Miles Parks, a major case investigator for the Missouri State Highway Patrol, was called to the scene, arriving about an hour after Mathis.   Parks saw the broken rear window and observed that a straight line could be projected from the window, across Tim's body, to a hole in the kitchen wall where a bullet was embedded.   Wounds on Tim's body and spatters of blood in the vicinity of the body led Parks to conclude that Tim had been shot with a “high-speed-velocity bullet,” probably from a rifle.

About 3:30 a.m. November 20 (some five hours after the murder), Parks went to the Joplin Police Department.   Appellant was there with her mother.   Parks avowed his purpose in going there was twofold:  to advise Appellant that her ex-husband had been killed and to find out what she knew about it.

Parks told Appellant that Tim had been murdered in his home.   Appellant screamed, fell to the floor, and cried briefly.   After Appellant ceased crying, she told Parks she had called Tim “earlier that afternoon” and he had indicated he “had to make a run to Arkansas that evening.”   Appellant also told Parks she had last seen Tim several days earlier at his residence, where she had shot an AK-47 he owned.   Appellant stated she knew nothing about the murder.

Later that day (November 20), Parks was notified that Appellant's mother had informed the sheriff's department in Pineville that Appellant was present when the murder occurred.   Parks went to the prosecutor's office in Pineville, arriving about 2:30 p.m.   Appellant was there.

Parks advised Appellant of her “Miranda rights.” ⁴  Appellant told Parks that when she phoned Tim the previous afternoon, he informed her that his house had been burglarized two days earlier and his AK-47 had been stolen.   Appellant also told Parks that during her phone conversation with Tim, he stated a neighbor had gotten the license number from the pickup used in the burglary, and that the number checked to Richard Myers of Webb City. When Tim told her that, she realized Terry Banks and Matt Myers had burglarized Tim's home.

Additionally, Appellant told Parks that Banks and Myers were present when she phoned Tim;  they overheard the conversation.   Realizing the pickup had been identified, the trio became frantic and decided they would “dump” it.

Appellant revealed to Parks that the trio drove the pickup to “an old mining area” on the northeast side of Webb City, where they pushed it into “a strip pit, a large body of water.”   From there, they walked to Edward Brickey's residence and borrowed the Trans Am.

Appellant told Parks that she, Banks and Myers then went to a bar in Joplin, and thereafter she drove to Tim's residence, accompanied by Banks and Myers.   Upon arriving, Appellant exited the car at the driveway;  Banks and Myers drove a short distance south and parked.

Continuing her narrative, Appellant told Parks she entered Tim's residence through the front door.   Tim was inside, alone.   They began watching television and drank beer.   Appellant asked Tim if he would take her for a motorcycle ride.   She wanted to get him out of the house.   Tim refused, as it was late and raining outside.

Then, said Appellant, she and Tim went to the bedroom, where she saw his billfold on a dresser.   From there, they went to the kitchen.   Tim leaned across the sink island and kissed her.   When he leaned back, the gun went off.

Describing what occurred next, Appellant told Parks that Tim fell to the floor.   She took his hand and talked briefly with him.   Myers and Banks were on the back porch;  Banks was yelling at Appellant to get Tim's billfold.   She went to the bedroom, got the billfold, exited the house through the back door, and threw the billfold to Banks.

At that time, Myers was holding the rifle.   Appellant and Banks began running from the house.   Myers said he was concerned that Tim was still alive.   Myers “went in to finish him.”   As Appellant and Banks were running, Appellant heard one shot.

The trio proceeded to the car on foot, put the rifle in the trunk, and entered the car.   Appellant drove from the scene.

Appellant told Parks the trio went to the trailer where she lived.   There, she got a change of clothes.   Then, the trio went to the Duenweg apartment where Myers and Banks resided.   Myers got out there.   Appellant and Banks went to a nearby truck line where Appellant's grandfather was employed.   Appellant talked with her grandfather about twenty minutes.

Appellant and Banks returned to the apartment, where Appellant took a bath and washed blood from a sock she had been carrying.   About an hour later, Appellant called her mother.

When Parks ended the interview with Appellant, Parks arranged for her to accompany him to the murder scene.   They went there the following morning (November 21).   Appellant “reenacted” her movements and repeated her previous account of the incident.

That same morning (November 21), a pathologist performed an autopsy on Tim's body.   The autopsy revealed Tim had been shot twice.   One bullet entered “the left posterior shoulder,” passed through the spine, severed the spinal cord, and exited the right side of the neck.   The wound caused instant paralysis from the neck down and would have been fatal.

The second bullet entered Tim's head above the right ear and exited around the left ear.   This was a “contact” wound, i.e., the gun barrel “had been held tight against the skin.”   This wound was instantly fatal.

Parks talked with Appellant again about 8:00 p.m. November 22.   This conversation occurred at the Jasper County sheriff's office.   Parks again advised Appellant of her Miranda rights.

Parks asked Appellant about a dog that had been discovered during the crime scene search.   Appellant told Parks that Tim had gone outside the house and gotten the dog from the basement.   Inasmuch as the basement entrance is near the back porch, Parks asked Appellant why Tim did not see Myers and Banks on the porch.

Appellant then said Tim didn't go to the back of the house, he went to the driveway side and called the dog.   When the dog came, Appellant and Tim went back inside.

Parks told Appellant he found that explanation unusual.   Appellant then said it did not happen that way.   Appellant stated she went to the rear of the house and got the dog from the basement.   Parks asked Appellant whether she saw Myers and Banks on the back porch.   Appellant acknowledged she saw them there with the rifle.   Appellant added that she motioned to them with one finger, like “just give me one more minute.”

Appellant told Parks she reentered the house and eventually positioned herself behind the kitchen sink, where she was situated when Tim was shot.   Additionally, Appellant told Parks she did not know Banks and Myers would shoot Tim. Appellant explained she thought that if she could get Tim to take her for a motorcycle ride, Myers and Banks could put the rifle back in the house and “take the money or dope while they were inside.”

Officers recovered the rifle from a water-filled mine pit near Webb City. The clip was in position and contained several rounds.   A round was in the firing chamber and the safety was off.

The pickup was found submerged in a larger pit nearby.

A ballistics expert connected the rifle to Tim's murder.

As noted earlier in this opinion, Appellant testified at trial.   She revealed she met Banks for the first time in early November, 1992, at “Spookies Pool Hall” in Joplin.   She liked him a lot and commenced a sexual relationship with him.   On one occasion, she had some photographs made and put the name “Sheena Banks” on the film rolls.   Appellant described Myers as Banks's “best friend.”

Appellant told the jury she knew nothing about the burglary of Tim's home until her mother informed her of it by telephone on the afternoon of November 19.   Appellant testified she immediately phoned Tim.   Asked what she remembered about that conversation, Appellant answered:  “I remember telling him that I would be down and that, asked him about his break-in in his house․”

Appellant then testified about the events at Tim's home at the time of the murder.   Her testimony paralleled the account she had given Parks on November 22.   Appellant avowed she wanted Tim to take her to her mother's so Myers and Banks could “try to find drugs and more money and just leave the gun.”   Appellant insisted she did not intend that Tim be shot.   According to Appellant, Banks was “jealous” of Tim.

Appellant's third point reads:

“The trial court erred in overruling Appellant's objections and in admitting hearsay testimony of State's witnesses William Finan, Melvin Eastburn, and Rhonda Daniels regarding statements made by Tim Eastburn, in violation of Appellant's rights to a fair trial, due process of law, and to confront and cross-examine the witnesses against her ․ in that the hearsay testimony was inadmissible, because it did not reflect Tim Eastburn's state of mind and was not relevant, and the testimony was highly prejudicial, because the State used the testimony as substantive evidence on the element of deliberation.”

We first consider Finan's testimony.   The argument following Appellant's third point specifies that the testimony about which she complains is the segment where Finan quoted Tim as saying, “My ex-wife has come to clean me out.”   Appellant argues that Tim's belief was not relevant to any issue, and the testimony was prejudicial because it linked her to the burglary.

In State v. Boliek, 706 S.W.2d 847 (Mo. banc 1986), cert. denied, 479 U.S. 903, 107 S.Ct. 302, 93 L.Ed.2d 276 (1986), the accused was convicted of murder.  706 S.W.2d at 848.   On appeal, he maintained the trial court erred in allowing two witnesses to testify that a few days before the murder, the victim stated she feared the accused was going to kill her.  Id. at 850.   The Supreme Court of Missouri held:

“The general rule is that such statements of a declarant's present mental condition made out of court are excepted from the hearsay ban.   Ordinarily, however, such statements are not admitted except in limited situations when they are relevant and the relevancy outweighs their prejudicial effect.   Trial courts are in the best position to determine the probativeness and prejudicial effect of the evidence.”

Id. (citations omitted).

The “state of mind” exception to the hearsay rule was an issue on appeal in State v. Post, 901 S.W.2d 231 (Mo.App. E.D.1995), another murder case.   There, the appellate court emphasized that to be admissible, a deceased's state of mind declaration must be relevant.  Id. at 235[8].   The opinion cited State v. Singh, 586 S.W.2d 410 (Mo.App. S.D.1979), which held such evidence admissible where it rebutted the accused's claim of self-defense and accidental death.  Id. at 419[15].  Post, 901 S.W.2d at 235-36.

In Post, the victim (the accused's wife) drowned in a bathtub.  Id. at 233.   The accused denied involvement in the death and denied he was present when the incident occurred.  Id. at 236.   Witnesses testified they had heard the victim say she wanted to divorce the accused.  Id. at 235.   The appellate court held this testimony inadmissible under the “state of mind” exception because the victim's attitude toward the accused was irrelevant to whether he caused her death.  Id. at 236.

In the instant case, the State argues that Tim's statement to Finan was admissible under the “accident” provision recognized in Singh.  586 S.W.2d at 419[15].   The State asserts Tim's statement indicated a bad relationship between him and Appellant, and thus rebutted Appellant's testimony that she did not intend that Tim be shot.

We need not-and do not-decide whether Tim's statement to Finan was admissible.   That is because we find the statement did not prejudice Appellant.

In addressing alleged trial court error, an appellate court reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the accused of a fair trial.  State v. Tokar, 918 S.W.2d 753, 761[1] (Mo. banc 1996), cert. denied, 519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996).

Finan's testimony that Tim said, “My ex-wife has come to clean me out,” was not prejudicial to Appellant for two reasons.

First, the testimony demonstrated only a suspicion by Tim that Appellant was involved in the burglary.   The State's uncontradicted evidence was that the burglary was committed by Johnson, Banks and Myers.   There was no evidence that Appellant had any role in the burglary.   Appellant's testimony that she did not learn of the burglary until two days after it occurred was uncontradicted.   Consequently, at worst the testimony demonstrated merely that in Tim's opinion, Appellant was someone who would burglarize his residence.

Second, Tim's opinion of Appellant was confirmed by Appellant's testimony at trial.   Appellant solemnly told the jury she went to Tim's residence with Banks and Myers to lure Tim away from the house so Banks and Myers could enter to steal drugs and money (and leave the rifle).   Any possible prejudice to Appellant from Finan's testimony about Tim's statement vanished when Appellant gave that testimony.

The testimony of Melvin Eastburn and Rhonda Daniels about which Appellant complains is their testimony that Tim told them Appellant was coming down to his home on the fatal night and wanted him to be alone.   Appellant asserts this testimony was inadmissible in that it was “hearsay within hearsay” and pertained to her state of mind, not Tim's. Appellant argues the testimony was prejudicial in that it allowed the jury to find the elements of deliberation and premeditation.

We need not, in this opinion, grapple with the intricacies of “hearsay within hearsay,” also characterized as “double hearsay” in State v. Reagan, 654 S.W.2d 636, 639 (Mo.App. E.D.1983).   A scholarly discussion of the subject appears there.  Id. at 639-40.

 In the instant case, Appellant twice admitted to Parks on November 20 that she had phoned Tim the preceding afternoon (the call about which Melvin Eastburn and Daniels testified).   Parks told the jury about those admissions by Appellant.   If evidence is improperly admitted, but other evidence before the court establishes essentially the same facts, there is no prejudice to the accused and no reversible error.  State v. Zagorski, 632 S.W.2d 475, 478 n. 2 (Mo. banc 1982).

Furthermore, Appellant, in her own testimony to the jury, admitted phoning Tim on the fatal day and telling him she “would be down.” ⁵  Reversible error cannot be predicated upon the admission of evidence which the accused later confirms by his own testimony.  State v. Sanders, 473 S.W.2d 700, 703-04[2] (Mo.1971);  State v. Holland, 781 S.W.2d 808, 811[4] (Mo.App. E.D.1989).

Appellant's third point is denied.

Judgment affirmed.

Appeal 21163

Appellant's second point relied on-the sole point presented in this appeal-reads:

“The motion court clearly erred in denying Appellant's ․ motion for postconviction relief, because Appellant established that trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstances, in violation of Appellant's rights to due process of law and effective assistance of counsel ․ in that counsel failed to move to strike for cause venireperson ․ Royal, who said she expected the defense to prove Appellant's innocence, because counsel's inaction denied Appellant a fair and impartial jury.”

It will be recalled from the segment of this opinion denying Appellant's first point that venire member Royal was one of the two prospective jurors Appellant maintained the trial court should have removed from the venire sua sponte.   Some of the voir dire dialogue between Royal and Assistant Defender is quoted in that part of the opinion.

Appellant commenced the post-conviction proceeding by filing a pro se motion.   Pursuant to Rule 29.15(e), the motion court appointed a lawyer (“Motion Counsel”) to represent Appellant.   Motion Counsel filed an amended motion for Appellant.

One allegation in the amended motion was that Defender and Assistant Defender rendered ineffective assistance in failing to challenge venire members Woodworth and Royal for cause.   The motion averred:  (1) Defender and Assistant Defender “had no reasonable strategic reason” for failing to challenge Woodworth and Royal, (2) because Appellant was required to use the majority of her peremptory challenges on venire members who should have been stricken for cause, Appellant was unable to strike Woodworth and Royal, and (3) Appellant was thereby prejudiced because she was deprived of a jury of fair and impartial jurors.

In addition to the dialogue between venire member Royal and Assistant Defender quoted earlier, another exchange between them is pertinent to Appellant's second point.   The exchange began when Assistant Defender told the venire:

“We Believe there's going to be some testimony about Sheena's relationship with Tim Eastburn in this case.   That relationship was punctuated by a lot of fighting and bitterness.   Is there anybody that has any close friends or relatives, or perhaps you yourself, went through a bitter divorce or a break-up?

․

Venireman Royal:  I went through a real bad divorce.

[Assistant Defender]:  How long ago was that, ma‘am?

Venireman Royal:  Three years.

[Assistant Defender]:  It was three years?   Still got, have feelings about that?

Venireman Royal:  Just that I'd like to see him dead.

[Assistant Defender]:  Okay.

[Prosecutor]:  I didn't hear the answer.   What did you say?

[Assistant Defender]:  She said, ‘I'd like to see him dead.’   That's resolved, though?   You are divorced, right?

Venireman Royal:  Oh, yes.

[Assistant Defender]:  But you feel that you could set aside your feelings and-

Venireman Royal:  Yes.

[Assistant Defender]:-sit and listen to the evidence in this case?

Venireman Royal:  Yeah.   He's the only one I don't like.

[Assistant Defender]:  Okay. You wouldn't be affected by, by that in this case?

Venireman Royal:  No.”

Motion Counsel called Assistant Defender as a witness at the hearing in the motion court.   Assistant Defender's testimony included this:

“Q During the voir dire do you recall asking the jury panel whether anyone would expect the defense to prove Sheena Eastburn's innocence?

A Yes, ma‘am.

Q Do you also recall that a Mr. Scott Woodworth responded, yes, he would expect the defendant to prove her innocence?

A Yes, ma‘am.

Q And do you recall that a Ms. Alta Royal responded that she also would expect the defense to prove Ms. Eastburn's innocence?

A I don't have a specific recollection, but based on the record, yes.

․

Q Would you agree that those responses by Mr. Woodworth and Ms. Royal provided a basis for you to move to strike them for cause?

A Yes, ma‘am.

Q Did you, in fact, move to strike for cause several of the panel members who said that they would expect the defense to prove Ms. Eastburn's innocence, or they would expect her to testify?

A Yes, ma‘am.

Q So was it your intent or strategy to move to strike for cause all of the individuals who responded that they expected the defense to prove her innocence or that they expected Ms. Eastburn to testify?

A That was my original intent.

․

Q Can you recall why you did not move to strike for cause Mr. Woodworth?

A [Defender] and I conferred, and we thought that in view of the fact that the Court was not going to strike any of the other jurors that we had attempted to strike for cause on the same basis, we felt like he would be, considering all of the other options, he would be a fairly good juror for us.

Q And can you recall why you did not move to strike for cause Ms. Royal?

A I don't have a specific recollection of that.  [Defender] and I have had conversations, but I don't have the specific recollection of that.

Q Do you recall that at one point Ms. Royal stated that she had been through a divorce, and said something to the effect that she would like to see her exhusband dead?

A I recall that was her statement.

Q Can you recall in what manner she said that she would like to see her exhusband dead?

A I took it to be jocular or flippant.

Q Did her statement that she would like to see her exhusband dead, did that in any way influence your decision whether to move to strike her for cause?

A I can't say.

Q You don't recall that?

A I don't recall that alone.

․

Q Am I correct in saying that based on your testimony this morning, that you either did not have a strategic reason or you cannot recall a strategic reason for not moving to strike Ms. Royal?

A I cannot recall.

․

Q You had also mentioned that the Court had not sustained several of the challenges for cause that you made when you'd asked to remove venire persons that expected Sheena to testify or prove her innocence.   Was that a strategic factor in not ․ [moving] to strike ․ ?

A Well, as I said before, as far as Mr. Woodworth goes, I felt like he was a juror that even though he had made that statement early on in the voir dire, that he still might be favorable to the defense.

Q What about with respect to Ms. Royal?

A I can't recall.  [Defender] might be able to tell you, but I can't recall.

․

Q You and [Defender], I assume, consulted among yourselves or between yourselves, and took notes, and compared your notes in deciding who to request strikes for cause?

A Yes, sir.

․

Q And here today, you're not telling the Court that you did not have a reason to strike [Ms. Royal], you are just saying if you did, you don't recall what that reason was?

A Yes, sir.”

Appellant did not testify in the motion court, and neither she nor the State presented Defender as a witness there.

The motion court's findings included these:

“15.  The testimony at the evidentiary hearing from [Assistant Defender] was that counsel voluntarily chose not to move to strike venireperson Woodworth for cause because he had a strategic reason for keeping Woodworth on the jury․  Counsel testified that he did not recall whether he had a specific strategic reason for not moving to strike venireperson Royal and that if he had a reason, he does not remember what it was.   Counsel stated that he had discussed with his co-counsel which individuals to strike, but that he did not recall whether they specifically discussed venireperson Royal.

16. Movant has failed to overcome the presumption that counsel's conduct was reasonable trial strategy.   In fact, movant has succeeded in proving that counsel had a valid strategic reason for not striking venireperson Woodworth․  [C]ounsel's failure to recall whether he had a strategic reason for striking venireperson Royal is not sufficient to overcome the presumption that counsel's conduct was sound trial strategy.”

Appellant's second point makes it clear that her claim of ineffective assistance is based solely on her lawyers' failure to challenge venire member Royal for cause.   Appellant maintains Royal demonstrated she could not presume Appellant innocent unless and until the State proved her guilty beyond a reasonable doubt, and that Defender and Assistant Defender “did not have a strategic reason for not moving to strike Ms. Royal for cause.”   Citing State v. McKee, 826 S.W.2d 26 (Mo.App. W.D.1992), and Presley v. State, 750 S.W.2d 602 (Mo.App. S.D.1988), cert. denied, 488 U.S. 975, 109 S.Ct. 514, 102 L.Ed.2d 549 (1988), Appellant asserts, “The failure to challenge for cause a venireperson who admits to a prejudice against the defendant is ineffectiveness absent an acceptable explanation.”

McKee and Presley, while pertinent to Appellant's second point, are not controlling.   In each of those cases, the accused's lawyer became confused about which venire member gave responses indicating prejudice against the accused.  McKee, 826 S.W.2d at 27-28;  Presley, 750 S.W.2d at 604-05.   Consequently, the accused's lawyer did not challenge venire members who were susceptible to challenge.   In McKee, the appellate court held the record demonstrated that the failure of the accused's lawyer to challenge the prejudiced venire members was not a matter of trial strategy.  826 S.W.2d at 28.   In Presley, the motion court found the accused's lawyer mistakenly challenged the wrong venire member, leaving the prejudiced member unchallenged.  750 S.W.2d at 604-05.   The appellate court upheld that ruling.

In contrast, Assistant Defender in the instant case did not confuse the responses of Royal with responses of any other venire member.   Assistant Defender simply failed to recall whether he or Defender had a reason for failing to challenge Royal for cause.

Obviously mindful that it was Appellant's burden to prove her claim of ineffective assistance of counsel by a preponderance of the evidence, Rule 29.15(h);  Clemmons v. State, 795 S.W.2d 414, 416[2] (Mo.App. E.D.1990), cert. denied, 500 U.S. 907, 111 S.Ct. 1689, 114 L.Ed.2d 83 (1991), and that Appellant was required to overcome the presumption that her lawyers' challenged acts or omissions were sound trial strategy, State v. Stepter, 794 S.W.2d 649, 656[17] (Mo. banc 1990), the motion court held Appellant proved only that Assistant Defender failed to recall whether he had a strategic reason for failing to challenge Royal for cause.

To reverse the motion court, we would have to hold that where an accused's lawyer cannot recall, long after trial, whether he had a strategic reason for failing to challenge a venire member for cause, the accused is automatically entitled to a nullification of the conviction because of ineffective assistance of counsel, even where, as here, the record arguably demonstrates a plausible reason for failure to challenge.

It will be remembered that in the second voir dire exchange between venire member Royal and Assistant Defender, quoted earlier, Royal revealed she had gone through a bad divorce three years earlier.   Asked whether she still had feelings about it, Royal announced she would like to see her ex-husband dead.   Although Assistant Defender treated the latter remark as flippant, it was evident that Royal bore enmity toward her former spouse.

The State, through Johnson, presented evidence that Appellant said Tim had treated her badly and she wished he was dead.   It is reasonable to infer that Appellant's lawyers anticipated that evidence and thought Royal could be a favorable juror.   Assistant Defender obviously believed it would be helpful in jury selection to know whether any venire member had been through a “bitter divorce”;  otherwise, he would not have asked the question that produced Royal's response.

Appellate review of a motion court's denial of post-conviction relief is limited to a determination of whether that court's findings and conclusions are clearly erroneous.  Rule 29.15(j);  Sidebottom v. State, 781 S.W.2d 791, 794-95 (Mo. banc 1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 804 (1990).   Findings and conclusions are deemed clearly erroneous only if a full review of the record leaves the appellate court with the definite and firm impression that a mistake has been made.  Id., 781 S.W.2d at 795.

We have no such impression from the record here.   The outcome in the motion court hinged on whether Assistant Defender's failure to recall whether he and Defender had a strategic reason for failing to challenge venire member Royal for cause was sufficient to overcome the presumption that the failure to challenge was sound trial strategy.   The motion court found Assistant Defender's absence of memory insufficient to rebut the presumption.   Given Royal's comments about her divorce during voir dire, we cannot brand the motion court's findings clearly erroneous.

The order of the motion court is affirmed.

FOOTNOTES

1.  Rule references are to Missouri Rules of Criminal Procedure (1995).   That is because Appellant was sentenced August 22, 1995, and filed her motion for post-conviction relief November 27, 1995.   The current (1997) version of Rule 29.15(m) provides that in such circumstances, post-conviction relief is governed by the version of Rule 29.15 in effect when the motion for post-conviction relief was filed or December 31, 1995, whichever is earlier.

2.  The trial court granted some challenges and denied others.

3.  The jury list is not in the record on appeal.   However, the verdict was signed by Royal as “Foreperson,” and at the evidentiary hearing in the motion court (discussed infra ), Assistant Defender testified that Woodworth and Royal served on the jury.   The State does not argue otherwise.

4.  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

5.  Although Appellant did not testify that she told Tim to be alone, the jury could readily infer from Appellant's testimony about the scheme to lure Tim from his home that she planned on him being alone.

CROW, Presiding Judge.

SHRUM, J., and MONTGOMERY, C.J., concur.