State v. Mitchell, 61839

• Citation: 611 S.W.2d 223
• Decision Date: 09 February 1981
• Docket Number: No. 61839,61839
• Parties: STATE of Missouri, Respondent, v. Johnny MITCHELL, Appellant.
• Court: United States State Supreme Court of Missouri

Page 223

611 S.W.2d 223

STATE of Missouri, Respondent, v. Johnny MITCHELL, Appellant.

No. 61839.

Supreme Court of Missouri, En Banc.

Feb. 9, 1981.

Blair Buckley, Jr., Public Defender, Caruthersville, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant was convicted of two counts of capital murder, § 565.001, RSMo 1978. Punishment was fixed at two consecutive terms of life imprisonment without eligibility for parole for fifty years. Appellant contends the trial court erred (1) by authorizing the jury to find appellant guilty of capital murder if it found that defendant "or another" committed the offense; (2) by overruling appellant's objection to the prosecutor's characterization of defense counsel's closing argument as a "smoke screen"; and (3) by allowing voir dire of the jury on the death penalty and excusing for cause a juror who said he would automatically exclude the death penalty from his deliberations. Appellant, in a pro se brief filed out of time, also questions the sufficiency of the information by which he was charged. Jurisdiction is in this Court under Mo.Const. art. V, § 3. We affirm.

On December 20, 1978, at about 7:15 p. m., a customer came to the High Pockets Tobacco Store in Caruthersville, Pemiscot County, Missouri, and discovered the bodies of William Parker, the proprietor, and Pierce Neeley. The coroner, who arrived at about 7:40 p. m., concluded that the two men had been dead about one to one and one-half hours. An autopsy revealed that both victims had sustained several stab wounds and lacerations. The pathologist determined that Parker's death was caused by a stab wound to the chest that punctured the heart. Neeley's death was caused by a laceration of the pulmonary artery. The pathologist testified that both victims' wounds were caused by "some blunt instrument or bottle or can...." Police investigators determined that some change and currency was missing from the cash register. They discovered a broken beer bottle near the bodies, and another bottle beneath Neeley's body.

Earlier that evening, appellant's brother-in-law, Willie Turner, arrived at appellant's home in Steele, Missouri, and shortly thereafter appellant and Turner departed. Appellant, dressed in a brown jacket, carried his pistol with him. Shortly thereafter the two returned, then left again, this time taking two ski masks with them. It is about twelve miles from Steele to Caruthersville.

Appellant returned to Steele between 8:30 and 9:00 p. m. with a considerable amount of change, some of which he shared with the children of the woman (Francis) with whom he was living. ¹ He told Francis that he had "pulled a robbery" at a "cafe" in Caruthersville, and that two people had been killed. Appellant told her that Turner had hit one of the victims with Turner's gun. Appellant stated that he had hit one of the men with a beer bottle. Francis noticed that appellant's pistol was "bent".

During trial, the prosecution introduced appellant's gun into evidence. The prosecution also introduced testimony that a fingerprint taken from the bottle found beneath Neeley's body was identical to a fingerprint sample taken from Willie Turner. One of the children residing at appellant's home testified that on the morning of December 21, 1978, appellant put the brown jacket he was wearing the night before into a garbage bag.

Earlier that month, appellant had told Michael Cooper that he was looking for a place to "hustle", and noted that the High Pockets Liquor Store would be a good target. On December 21, 1978, one day after the murders, Cooper overheard appellant say to Turner, "I wasted those two punk-a mother f ." Two weeks after that, appellant told Cooper he had pulled a "hustle" at a liquor store in Caruthersville. Still later, appellant told Cooper he had "wasted those two dudes" during the robbery because they were "giving him some kind of hassle."

Appellant testified in his own defense that he had left his home in Steele at about 7:15 p. m. on December 20, 1978, and had gone to a bar, after which he returned home. Before objection from the prosecutor, he attempted to testify that Francis had been coerced by the prosecutor into testifying falsely, and that Cooper and the child also had been lying.

The jury found appellant guilty of capital murder on both counts. At the end of the second or sentencing stage of the bifurcated trial the jury returned a verdict that it was unable to agree on punishment. The court then sentenced appellant to two terms of life imprisonment without eligibility for parole for fifty years. This appeal followed.

I

We first consider appellant's contention that the information by which he was charged was insufficient to inform him of the nature of the offenses charged. This point was raised in a late filed pro se brief. We consider the allegation of error under Rule 30.20 and Rule 23.11. The information was worded as follows:

COUNT I: Now comes Michael B. Hazel, Prosecuting Attorney, within and for the county of Pemiscot, Who in this behalf prosecutes for and in the name of the State of Missouri, and upon his official oath informs the Court that on or about the 20th day of December, 1978, in the City of Caruthersville, County of Pemiscot, State of Missouri, the defendants, Johnny Mitchell and Willie Ray Turner, caused the death of William F. Parker by stabbing him; and the defendants intended to take the life of William F. Parker; and the defendants knew that they were practically certain to cause the death of William F. Parker; and that the defendants considered taking the life of William F. Parker and reflected upon the matter coolly and fully before doing so;

Count II was identical to Count I, except that the name of the victim was changed.

This information was filed March 3, 1979, after the date on which MACH-CR became effective. Those pattern charges, however, are recommended and not required. MACH-CR 1.00. The sufficiency of this, or any, information is governed by Rule 23. In State v. Downs, 593 S.W.2d 535 (Mo.1980), this Court stated the test for the sufficiency of an information as follows:

The fundamental test of the sufficiency of an information is whether or not it states the essential elements of the offense charged so that the defendant is adequately informed of the charge against him and the final disposition of the charge will constitute a bar to further prosecution for the same offense.

593 S.W.2d at 540; Merrill v. State, 576 S.W.2d 561, 562 (Mo.App.1978); State v. Healey, 562 S.W.2d 118, 129-30 (Mo.App.1978). The language contained in this information is essentially the same as that required to be used for submission of a capital murder charge to a jury. MAI-CR 15.02. Although it did not exactly follow the language of the statute, it set out each element of the offense charged. Cf. § 565.001, RSMo 1978, with MAI-CR 15.02. For this reason, we hold that the information did adequately inform appellant of the offense with which he was charged.

Appellant also contends that the information was defective because it did not contain either the section of the statutes alleged to have been violated or the section of the statutes fixing the penalty therefor, as required by Rule 23.01. Rule 23.11, however, provides that no information should be held invalid which does not prejudice the defendant's substantial rights as long as it fully informs him of the offense charged.

We note that appellant filed with the trial court a "motion to quash information". It is extremely difficult for us to comprehend how appellant could, in his motion to quash, assert that "The statutes on which the information is based, § 565.001, 565.008, 565.012, and 565.014, R.S.Mo.1978, are (unconstitutional) ...," and now claim that he is prejudiced by their omission from the information. We have no doubt that he both was advised of, and understood, the nature of the offenses with which he was charged. We find no prejudice to the substantial rights of the appellant. State v. Umfleet, 587 S.W.2d 612, 617 (Mo.App.1979); State v. Tierney, 584 S.W.2d 618, 622 (Mo.App.1979); Rule 23.11.

II

Appellant contends the capital murder verdict directing instructions ² were not in compliance with the applicable rules. ³ Appellant argues that MAI-CR 15.02 should not have been modified by MAI-CR 2.12 because MAI-CR 15.02 is applicable under the law to the facts in this case, and should have been given to the exclusion of any other on the same subject. Rule 28.02(a) requires that instructions from the 2.00 series of MAI-CR be given, "whether requested or not, where applicable under the law to the facts...." Note 5 under MAI-CR 2.10, given in this case as Instruction No. 4, directs that MAI-CR 2.12 or 2.14 "should be used where it is not clear from the evidence whether defendant acted alone or with another or others." From the evidence presented in this case, the jury could find either that appellant acted alone in committing the offense, or that he acted "with another". Therefore, modification of MAI-CR 15.02 by MAI-CR 2.12 was proper. State v. Buffington, 588 S.W.2d 512, 515 (Mo.App.1979); State v. Davis, 559 S.W.2d 602, 604 (Mo.App.1977); Rule 28.02(a).

Appellant also contends the verdict directing instructions erroneously authorized the jury to find appellant guilty if it found that "defendant or another" committed the act with the required mental state. There is no merit in this argument. "All persons who act together with a common intent and purpose in the commission of a crime are equally guilty, if they share consciously in the criminal act as something they intend to bring about." State v. Goodman, 482 S.W.2d 490, 492 (Mo.1972); State v. Thomas, 595 S.W.2d 325, 328 (Mo.App.1980); State v. Collins, 520 S.W.2d 155, 157 (Mo.App.1975). Cf. State v. Dodson, 556 S.W.2d 938, 950 (Mo.App.1977); State v. Lute, 608 S.W.2d 381 (Mo. banc 1980). In ...