Court rejects convicted murderer's appeal

~ Justin Brown is serving life in prison for the 2002 murder of Ralph Lape.

The Southern District of the Missouri Court of Appeals rejected attempts by Justin Brown to overturn his conviction for the 2002 murder of Ralph Lape of Cape Girardeau.

Brown was convicted of first-degree murder in May 2006 by a Pulaski County jury. In his appeal, Brown's attorney, Roger W. Johnson, argued that there were errors in the jury selection and the instructions to the jury, constitutional violations and prosecutorial misconduct. Brown is serving life in prison without parole.

In an opinion handed down Jan. 3, a three-judge panel rejected all those claims. "We find no error and affirm the rulings of the trial court," Judge Nancy S. Rahmeyer wrote in the unanimous opinion.

Brown and accomplice Mark Gill, who is facing the death penalty for his part in the case, took Lape from his rural home July 7, 2002, after Lape returned from a holiday weekend at Kentucky Lake. Gill, who had been living in a trailer on Lape's property, had learned that Lape had a checking account with nearly $20,000 and a money-market account with $117,000.

The pair bound Lape with plastic ties and duct tape, drove him to a remote corn field near Portageville, Mo., and dug a hole. They unbound Lape, shot him in the head with a .22-caliber pistol, removed Lape's clothing and jewelry and buried him.

In ensuing weeks, Gill and Brown repeatedly used Lape's ATM card, moved cash from the money market account to the checking account and recorded withdrawals in eight states.

Both men confessed to the crimes, and both claimed the other had fired the fatal shot.

The appeal alleges several instances of misconduct by Cape Girardeau County Prosecuting Attorney Morley Swingle. In the first allegation, Johnson claimed that the trial court should have suppressed Brown's incriminating statements because Swingle had improperly withdrawn an offer of leniency in exchange for his testimony.

In a letter to Brown, printed in full in the opinion, Swingle promised a misdemeanor charge if he told what he knew, but that "if you lie to us now, the deal will be off."

Swingle also wrote that his offer was contingent upon previous statements from Brown and a lack of evidence, up to that point, that Brown had participated in the killing. "If it turns out you were the killer, all deals would be off," Swingle warned.

Brown then told investigators he had helped Gill dispose of Lape's body after the killing, directed investigators to the Portageville corn field and to Cape Rock Park, where Gill threw the murder weapon into the river.

Brown didn't reveal his entire role in the crimes or give truthful statements for another full day. Therefore, Rahmeyer wrote, Brown violated the terms of the plea agreement.

In her opinion, Rahmeyer noted that "the issues are whether appellant was involved in the killing of the victim or whether appellant lied to the police subsequent to the signing of the deal. The answer is 'yes' to both questions."

Other issues of prosecutorial misconduct or the jury selection did not taint the trial to the point where the conviction should be overturned, Rahmeyer wrote.

In a statement issued Thursday, Swingle praised the appellate court for upholding his actions and for rejecting Brown's other claims. "Justin M. Brown is one more killer who will never walk the streets again," Swingle said. "The world is a safer place with him behind bars."

rkeller@semissourian.com

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