975 S.W.2d 121 (Mo.banc 1998)

Case Facts: Clay’s close friend Charles Sanders had an affair with Stacy Martindale. In February 1994, Martindale asked Sanders to help her kill her husband. She was unhappy in her marriage and also was the primary beneficiary of her husband’s life insurance policy in the face amount of $100,000. During the spring of 1994, every time they met, Sanders and Martindale discussed various plans to kill her husband. Sanders confided in Clay, who told him that he would be “crazy” to help her with the plan.

Sanders borrowed a gun from another friend and kept it in his car. He bought ammunition and he and Martindale practiced firing the weapon. At that time, Clay was unemployed and did not own a car. He often borrowed Sanders’ car, twice took the gun out of the car without permission, and left the gun at a friend’s house. He testified that he removed the gun so that he wouldn’t be caught with it while driving Sanders’ car.

Martindale separated from her husband about April 28, 1994. Martindale offered Sanders $100,000 to kill her husband and in April gave him a check for $4996.36 as a “down payment.” A few weeks later, Sanders returned the check to Martindale, telling her that he could not execute the act they had been discussing. A carbon copy of the check was later found.

On May 19, 1994, Martindale met Sanders at Sanders’ place of employment. Clay waited inside to give them privacy. Outside, Martindale pressured Sanders to kill her husband. When Sanders refused, Martindale told him that she was going to ask Clay to do it. Then she immediately rode around alone with Clay.

Leaving Martindale, Clay went to a bar, to a restaurant, and then to a trailer. Clay left the trailer carrying a black zippered bag. At 9:45 p.m., Martindale picked up Clay, who still had the black bag and drove him to her home.

In the meantime, her estranged husband had taken her two boys to a baseball game. He brought the boys back to her house after 10 p.m. Martindale invited him to spend the night. He went into her bedroom, sat down on a love seat, and took off his shoes and socks. While he was sitting there, Clay came out of the bedroom closet where he was hiding and shot him four times. The victim bled to death. Martindale ran next door, awakening the neighbors with her screams. A neighbor came over to the house with her to find the two boys had discovered the victim bleeding from gunshot wounds, slumped over in the love seat in the bedroom.

Moments later, a police officer saw a red Camaro with sparks flying beneath it. Because the driver continued to drive despite the sparks, the officer believed the driver to be drunk. He pursued the Camaro, and when it accelerated, the officer turned on his red lights. The officer caught up to the Camaro on a gravel road where it was stopped, both doors opened, with the engine running. The officer requested backup and turned off the ignition of the Camaro. A shoe print, later found to match Clay’s, was found outside the passenger door. When the other officers arrived, they began a search sweeping the area from the vehicle to a swamp. An officer found a dry, live .380 caliber Remington-and -Peters cartridge that matched those found at the crime scene in dew covered grass. The search lasted throughout the night. The next day several officers were sitting on a levee when one saw Clay run into the woods. Clay was carrying a black bag. As the officer closed in on him, he emptied the bag and threw it behind him. Officers continued the search through the swamp until one saw Clay’s face as he surfaced to breathe. When the officers reached him, they arrested him. The police never found the murder weapon.