957 S.W. 2d 757 (Mo.banc 1997)

Case Facts:  On December 31, 1995, Freddie Lopez and his wife Kerry Lopez, threw a small New Year’s Eve party in the garage adjacent to their house. Ronald and Brian Yates arrived at the party shortly after midnight. They were looking for their brother, Tim Yates, who had already left. Freddie Lopez invited them to stay for a few beers.

During the party several of the guests became intoxicated, including Hutchison. Freddie Lopez and Ronald Yates shared a line of methamphetamine. Hutchison caused a minor disturbance when he punched another guest, Jeremy Andrews, for no apparent reason. Andrews also observed Hutchison making shooting motions with his hand towards the Yates brothers.

At about 4:00 a.m. Freddie and Kerry Lopez went into the house to continue an argument that they had started in the garage about how much alcohol Kerry was drinking. Several of the party-goers went home, leaving only Hutchison, Michael Salazar, and Ronald and Brian Yates in the garage.

About twenty minutes later, Hutchison ran into the house and pounded on the Lopez’s bedroom door, saying that “something bad had happened in the shop.” Salazar called for Freddie Lopez from the porch. When Lopez came out, Salazar was holding a .25 caliber revolver. He told Lopez that he had shot someone. Lopez entered the garage and saw both Yates brothers lying on the floor. Salazar told Lopez that one of the brothers had tried to stab him.

Autopsies of the brothers shows that they had been shot a point blank range with a .25 caliber gun. The bullet that his Ronald Yates lodged in his spinal cord, paralyzing him from the waist down. Brian Yates sustained a relatively minor bullet wound to the chest and a more serious one to the stomach. Medical evidence established that both brothers were still alive, however, when Lopez found them on the garage floor he testified that he saw Ronald Yates gasp.

Hutchison insisted that nobody call an ambulance and that Ronald Yates was already dead. He then suggested that they remove the brothers from the garage in Lopez’s white Honda Accord. Hutchison and Salazar put Ronald Yates in the trunk first, then Hutchison put Brian Yates in the trunk on top of Ronald after dragging him by his shoulders, dropping him on the floor, and kicking him in the upper body. Meanwhile, Salazar went into the house to fetch a drug scale and a .22 caliber handgun which he also put in the car. The three men took off in the car with Hutchison driving.

After driving for a short time, they pulled over on the side of a dirt road. Hutchison and Salazar got out and walked to the back of the car. Lopez testified that as Hutchison climbed out of the car, he held the .22 caliber pistol and said “we got to kill them, we got to kill them.” Lopez heard several gunshots and then Hutchison and Salazar got back into the car. Lopez testified that Hutchison was still clutching the gun when he returned to his seat.

At around 8:00 a.m., Ronald and Brian Yates’ dead bodies were found on the side of the road. Both had died of execution-style gunshot wounds to the head from .22 caliber bullets. Ronald Yates had sustained a shot in each eye and one to the back of the head. Brian Yates had sustained one shot in the right eye and on in the right ear.

Hutchison and Salazar were apprehended several days later in California.