Opinion
No. ED74953
Opinion filed: September 21, 1999
Appeal from the Circuit Court of St. Louis County, Hon. Timothy J. Wilson.
Nancy L. Vincent, District Defender, 1221 Locust, Suite 350, St. Louis, MO 63103, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Daniel W. Follett, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for respondent.
William H. Crandall, Jr., P.J. and Mary K. Hoff, J. concur.
The state charged defendant with murder in the first degree and armed criminal action. The jury found defendant guilty of the included offense of voluntary manslaughter and armed criminal action. Defendant appeals consecutive sentences totaling seventeen years. We find defendant's two arguments of preserved error are without merit. We also find his three arguments of plain error are not sustainable because they will not support a finding of manifest injustice or miscarriage of justice.
Defendant testified he was the victim of an unprovoked assault by Kendrick Holmes in the bathroom of the Cut Above Lounge. Holmes was much larger than defendant and severely intoxicated. Defendant secured a .38 caliber revolver from his pocket and shot Holmes in the left temple. There was an eyewitness. Defendant stepped over the body, left the lounge and went to the parking lot. A security guard stopped defendant and another individual in the parking lot where they were pushing a truck. The security guard summoned the police. The revolver was never found.
Defendant also testified he initially told the police he had not shot Holmes. In addition to his oral statement, he gave a signed written statement and a video taped statement. The court permitted the state to show the video for the jury during cross-examination of defendant.
Defendant's first point argues the trial court erred in refusing to submit one of two verdict directing instructions which he tendered to submit the included offense of involuntary manslaughter. He contends his statements on the video would support a finding that he recklessly caused the death of Holmes. We do not have the video. However, the prosecutor asked, "in your video taped statement you said you didn't mean for it to happen?" He answered, "Yes, sir." During his live testimony defendant described the assault, which included an oral threat by Holmes, and movement of Holmes' hand which defendant concluded was an attempted robbery with a weapon. Defendant used his gun believing it was necessary to protect himself.
Involuntary manslaughter is a lesser-included offense of first degree murder. Section 565.025. A court must instruct on a lesser-included offense only if the evidence established a basis for acquittal of the greater offense and conviction of the lesser-included offense. Section 556.046.2 RSMo 1994; State v. Coleman, 949 S.W.2d 137, 142 (Mo.App.W.D. 1997). A defendant is entitled to a requested instruction which is supported by the evidence and any inferences which logically flow from the evidence. State v. Hopson, 891 S.W.2d 851, 853 (Mo.App.E.D. 1995). The court should submit a requested instruction, "if the evidence arguably shows lack of an essential element of the higher offense which would not only authorize acquittal of the higher, but sustain conviction of the lesser." State v. Israel, 872 S.W.2d 647, 649 (Mo.App.E.D. 1994).
For three reasons, we find no error in refusing the involuntary manslaughter instruction. First, defendant tried this case on a single theory of self-defense. In opening statement, defense counsel told the jury this case was about defendant's use of self-defense and deadly force in defense of himself. He also told the jury defendant would testify Holmes was larger and stronger, defendant was afraid for his life, he was afraid because of his medical condition, he was afraid because Holmes was drunk, he was afraid because Holmes was not rational and would not let him out of the bathroom, "and now being pushed and shoved and dragged back into the bathroom he does the only thing that he will tell you he could have done and that is to take the gun out of his pocket and to shoot because he was in fear of serious physical injury or of death from the acts of this irrational person." Voluntary manslaughter involves a knowing act under the influence of sudden passion arising from adequate cause which causes death. Section 565.023 RSMo 1994. Involuntary manslaughter involves an act, which recklessly causes death. Section 565.024 RSMo 1994. "A person internal `acts recklessly' or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Section 562.016(4) RSMo 1994.
The evidence, including defendant's testimony, would not support a finding he acted recklessly. His counsel told the jury in opening statement he acted intentionally in self-defense. Defendant testified before the jury that his acts were necessary for his defense. Submission of an involuntary manslaughter instruction would have submitted an issue that the parties did not try.
Second, over the state's objection the court submitted a self-defense instruction. That instruction was consistent with the only defense presented by defendant. That defense may succeed only if the jury finds the defendant acted intentionally to defend himself and he was justified in so doing. "Indeed, it is specifically because the claim of self-defense requires an intentional act whereas the claim of involuntary manslaughter requires a reckless act culminating in an unintended result, that numerous cases have held that the two defenses are inconsistent and cannot be submitted together where they both depend on jury acceptance of the defendant's testimony. (Citations omitted)."State v. Albanese, 920 S.W.2d 917, 925 (Mo.App.W.D. 1996).
Third, the acknowledgement by defendant that he didn't mean for "it" to happen will not support a finding defendant acted recklessly. If he was defending himself, he intended to shoot for that purpose whether or not he intended the result. If the act was knowing and intentional then the crime was voluntary manslaughter and the defense was self-defense, not a reckless act. His live testimony is consistent only with an interpretation that what he did not mean to happen was the result. This is not evidence to support a finding his conduct was reckless. Point denied.
Defendant's second point is the court erred in allowing the state to refer to his prior convictions and argue that he "had a propensity to commit crimes because he allegedly acted in conformity with his prior convictions." What the state argued was, "And the stuff about the colon and all that stuff well, they apparently didn't prevent him in aggravated assault and aggravated battery."
It is impermissible to use a defendant's prior convictions to argue that he has a propensity to commit crimes. State v. Jacobs, 939 S.W.2d 7, 11 (Mo.App.W.D. 1997). If a defendant testifies, however, his testimony is subject to argument on credibility. Id. In criminal prosecutions, the state has the "absolute right to argue the defendant's past convictions as affecting the defendant's credibility where he testified on his own behalf. Id.
Trial courts have broad discretion in controlling arguments, and counsel is entitled to wide latitude in making a summation.State v. Richardson, 923 S.W.2d 301, 314 (Mo.banc 1996), cert. denied, 117 S.Ct. 403 (1996); State v. Davis, 825 S.W.2d 948, 951 (Mo.App.E.D. 1992). Similarly, because the trial court is in the best position to evaluate allegedly improper references and their effect on the jury, the trial court enjoys considerable discretion in making appropriate rulings based on those determinations. Richardson, 923 S.W.2d at 314; State v. Weaver, 912 S.W.2d 499, 513 (Mo.banc 1995), cert. denied, 117 S.Ct. 153 (1996). "Absent abuse of discretion resulting in prejudice to the defendant, trial court rulings on such issues should not be overturned on appeal." State v. Mahurin, 799 S.W.2d at 844. An abuse of discretion will not be found unless the prosecutor's statements were clearly unwarranted and had a decisive effect on the jury. Weaver, 912 S.W.2d at 512. In order for the statements to have had such a decisive effect, there must be a reasonable probability that, but for the comments of the prosecutor, the verdict would have been different. State v. Barton, 936 S.W.2d 781, 786 (Mo.banc 1996). Appellant must bear the burden of showing such an effect. State v. Bohlen, 690 S.W.2d 174, 178 (Mo.App.E.D. 1985).
On direct, defendant testified that he had no prior convictions. On cross-examination, defendant admitted prior convictions and that he was prosecuted, pled guilty and convicted while using the name Antwayne Pearson. In fact, he acknowledged that his name is Antoine Pearson. He used both names, Hill and Pearson. One of the prior convictions was for a class three felony of aggravated assault with a firearm.
We find no error. First, the court sustained defendant's objection and struck the statement. Defendant does not argue error for failure to declare a mistrial, which was requested and denied. Second, the statement by the state did not suggest defendant was guilty of the present charge because of his prior convictions. Rather, it was a rebuttal to defendant's contention that the circumstances required his use of a gun for self-defense because he was smaller, and weakened by previous and existing physical impairments. The statement of the prosecutor referred to prior convictions as evidence that defendant's physical limitations did not render him incapable of defending himself without resort to a shooting. Point denied.
Defendant's three unpreserved errors are not plain errors. First, the state's cross-examination regarding defendant's prior convictions was invited by his denial of prior convictions on direct examination. Second, rejecting defendant's proposed question to a medical examiner about the effect of Holmes' intoxication on defendant, to support his theory of self-defense, did not deprive defendant of the defense where the undisputed evidence was Holmes was very intoxicated. Finally, the state's reference to "reasonable doubt" in voir dire was not error, plain or otherwise. The reference exactly tracked MAI-CR 3rd 100.02. These points are denied.
We affirm.