O'Dell v. Armontrout, 88-1726

• Decision Date: 13 September 1989
• Docket Number: No. 88-1726,88-1726
• Citation: 878 F.2d 1076
• Parties: Denver O'DELL, Appellant, v. Bill ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1076

878 F.2d 1076

Denver O'DELL, Appellant, v. Bill ARMONTROUT, Appellee.

No. 88-1726.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 16, 1988.

Decided June 28, 1989.

Rehearing and Rehearing En Banc Sept. 13, 1989.

William P. Grant, St. Louis, Mo., for appellant.

Jared Richard Cone, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before ARNOLD and JOHN R. GIBSON, Circuit Judges, and BRIGHT, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Denver O'Dell appeals from the district court's ¹ denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254, in which he attacks his second-degree felony murder conviction for the shooting death of his wife, Ruth O'Dell. Although Ruth was shot by another man, Calvin Eugene Pyatt, the incident took place during O'Dell's attempted second-degree assault on Pyatt. O'Dell argues that the state presented insufficient evidence to support his conviction because there was no proof that he had taken a substantial step towards assaulting Pyatt. O'Dell also claims that improper juror communications denied him the fair trial required by due process. He also argues that the jury rendered inconsistent verdicts, in that while he was acquitted of second-degree murder and manslaughter charges concerning the death of Pyatt, the jury returned a guilty verdict on the felony murder charge. Finally, he argues that the state impermissibly based his conviction upon an underlying offense that was a misdemeanor, not a felony. ² We affirm the judgment of the district court.

Thirteen days before the shooting incident, a deputy sheriff found O'Dell lying on a rural highway, suffering from severe injuries that required his hospitalization for ten days. O'Dell said that he had been assaulted by Calvin Eugene Pyatt and some other men. The deputy asked if O'Dell wished to sign a complaint against the men, to which O'Dell replied, "Hell no, I won't sign nothing, I will take care of the matter myself." O'Dell was released from the hospital just three days before the encounter with Pyatt.

On the morning of the shooting O'Dell and his wife visited a local tavern. O'Dell informed the proprietor that Pyatt had injured him, and stated "I am going to get my evens." His wife added, "When Denver gets done with his licks, I am going to put mine in." Meanwhile, Gene and Wayne Schmidt, two friends of O'Dell, returned from Texas. After being informed of the events of the previous two weeks, Gene Schmidt encountered Ned Pyatt, Calvin Pyatt's brother, and advised him to "Tell that brother of yours he shouldn't have whipped up on Denver O'Dell." Later, the Schmidts and O'Dells bought some beer, and borrowed a shotgun, purportedly so that they could hunt turkeys.

The group did not go turkey hunting, however, but instead began to drive by Pyatt's home, supposedly because Ruth O'Dell wished to know where to find poke greens to make a salad. The Schmidts sat in the front seat, with a loaded 20-gauge shotgun between them, and O'Dell and his wife sat in the back seat, with a loaded 12-gauge shotgun on the floor in front of them. The group was additionally armed with a table leg and a nightstick. Pyatt's house was passed twice without incident, but the third time the group drove by they spotted Pyatt. It is unclear whether Pyatt waved for them to stop or not, but in any event they did stop and Pyatt walked up to the car. Pyatt leaned in and said to O'Dell, "I thought I killed you." O'Dell answered "Not yet," to which Pyatt replied "I will cure that right now." Pyatt retrieved a .30 carbine from his car and fired two shots. O'Dell was hit in the chin and below his left arm, and his wife Ruth was fatally struck in the back. The Schmidts returned fire with two shotgun blasts, killing Pyatt. These events are developed in far greater detail by the Missouri Court of Appeals in affirming O'Dell's conviction, State v. O'Dell, 684 S.W.2d 453 (Mo.Ct.App.1984) but for our purposes this account will suffice.

O'Dell was subsequently charged with second-degree murder, in that he acted in concert with the others in killing Pyatt. He was acquitted of this charge. He was also accused, however, of committing second-degree felony murder in the death of his wife, on the allegation that she died as a result of his attempt to commit a felony, namely the assault on Pyatt. The jury returned a guilty verdict on this count, and O'Dell was sentenced to fifty years imprisonment. He appealed and filed for appropriate postconviction relief, all of which was denied, exhausting his state remedies. He then brought this petition for a writ of habeas corpus, raising essentially the same issues argued before the Missouri courts. The case was referred to a magistrate who, after conducting hearings and compiling reports, recommended that the writ not issue. The district court adopted these findings and denied the writ.

I.

O'Dell argues that the State of Missouri produced insufficient evidence to support his conviction. Due process requires that the prosecution prove every fact necessary for conviction beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). For federal courts reviewing state court convictions under this standard,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (citation omitted, emphasis in original).

O'Dell claims that the state failed to prove that he was attempting to commit a second-degree assault on Pyatt during the encounter. More specifically, he argues that there was no evidence of a conscious plan to assault Pyatt or of any overt act to inflict unjustifiable physical injury on Pyatt by means of a deadly weapon. Having studied the record, we conclude that a reasonable jury could have determined that O'Dell and his group formed a plan to assault Pyatt with deadly weapons, and that the group had taken a substantial step toward completing their plan. ³ First, there was ample evidence to support the intent of O'Dell to assault Pyatt. Pyatt had previously severely beaten O'Dell, yet O'Dell refused to sign a complaint, preferring to handle the matter himself. He stated his intent to get even to several witnesses, and his accomplices, the Schmidts, made similar statements to Pyatt's brother. Second, the evidence indicates that the O'Dell group made numerous trips past the Pyatt home while in possession of dangerous weapons, including two clubs and the two shotguns eventually used to kill Pyatt. Finally, when the group did confront Pyatt a belligerent argument ensued, which ended only with gunfire and the death of two participants.

The Missouri Court of Appeals painstakingly set out this evidence and the conclusions that might be drawn from it:

The jury could further find that when [the O'Dell group] first found Eugene Pyatt was not home, they looked for him at Ned Pyatt's. When they drove by the second time they honked to lure him from the house. They drove by on their third trip, before returning, to be sure he was alone. They then returned to carry out their purpose.

O'Dell had a motive to commit the offense. He provided the automobile. O'Dell's presence in the automobile, his companionship with the Schmidts and his conduct before the offense was a sufficient basis for the jury to find he was an "aider."

When the O'Dell automobile returned on the third trip, the foursome had searched for Pyatt; by honking they enticed Pyatt from his house and they had reconnoitered the place contemplated for the commission of the offense. This was abundant evidence upon the basis of which the jury could further find that at the time of, and as a direct result of, this substantial step in the commission of assault in the second degree, Eugene Pyatt fired and killed Ruth O'Dell. By their verdict, the jury found these things to be true. That determination is supported by the evidence.

State v. O'Dell, 684 S.W.2d 453, 463 (Mo.Ct.App.1984). We agree with the Missouri Court of Appeals that this evidence, viewed in a light most favorable to the state, satisfies the Jackson standard of review for the conclusion that O'Dell took a substantial step toward committing a second-degree assault on Pyatt. The comments following the Missouri attempt statute list a number of facts that may be held to constitute a substantial step, including searching for the intended victim, reconnoitering the area where the offense is planned, possessing materials to aid in the commission of the offense that have no immediate legitimate uses, and soliciting agents to help in committing the offense. See Mo.Ann.Stat. Sec. 564.011 (Vernon 1979) (comment to 1973 proposed code). As we have discussed, evidence supported the finding that all of these factors were present in this case.

There was testimony that the O'Dells and Schmidts drove by Pyatt's house three times, leading to the inference that they were searching for him and reconnoitering the area. The evidence also showed that they were armed with guns and clubs, items having no legitimate uses at that time. The group used O'Dell's car. Additionally, the shotgun that had been next to O'Dell in the back seat of the car was found with the hammer pulled back in a firing position and with a shell in the barrel. Finally, following the shooting the group quickly left the crime scene. These pieces of evidence are all indicia of O'Dell's participation in the crime, see, e.g., State v. Kennedy, 596 S.W.2d 766, 769 (Mo.Ct.App.1980) (listing factors that may be used to...