Mosby v. State
| Decision Date | 31 October 2007 |
| Docket Number | No. 27141.,27141. |
| Citation | 236 S.W.3d 670 |
| Parties | Louis Zerome MOSBY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Kent Denzel, Asst. Public Defender, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen., Jefferson City, MO, for respondent.
Louis Mosby (Mosby) appeals from an order denying his amended Rule 24.035 motion to set aside or vacate his pleas of guilty to committing the offenses of assault in the first degree and armed criminal action (ACA).1 In Mosby's amended motion, he alleged that: (1) his guilty plea to the first-degree assault charge was involuntary because the record contained an insufficient factual basis to establish the mental element necessary to the commission of that offense; and (2) he was ordered to serve his ACA sentence consecutively because the court was acting under the mistaken belief that it was required to do so. The motion court denied relief, and this appeal followed. This Court affirms.
In September 2001, Mosby was charged in a three-count information with committing assault in the first degree (Count I), robbery in the first degree (Count II) and ACA (Count III). See §§ 565.050, 569.020, 571.015.2 All three charges arose out of an armed robbery of a locksmith store during which the owner, David Holmes (Holmes), was shot with a handgun. Insofar as relevant here, Count I alleged that "on or about March 13, 2001 ... [Mosby] attempted to kill or cause serious physical injury to [Holmes] by shooting him, and in the course thereof, inflicted serious physical injury to [Holmes]...."
On April 9, 2002, the State and Mosby entered into a plea agreement. He agreed to enter an open plea of guilty to the charges of first-degree assault and ACA. In return, the State agreed to dismiss the first-degree robbery charge. Mosby and his plea attorney each executed a guilty plea petition. It stated, in pertinent part, as follows:
5. I know that the Court must be satisfied that there is a factual basis for a PLEA OF GUILTY before my plea can be accepted. I represent to the Court that I did the following acts in connection with the charge made against me: Caused serious physical injury to [Holmes] by shooting him with a deadly weapon in Scott Co. on March 13, 2001....
16. I know that the Court will not permit anyone to plead GUILTY who is innocent, and with that in mind, and because I AM GUILTY, I wish to plead GUILTY and respectfully request the Court to accept my PLEA OF GUILTY.
(Underlining in original with hand-written entries.) That same day, Mosby appeared in court for his plea hearing. Mosby stated that he was able to understand the petition, and he was aware of the ranges of punishment for the crimes of first-degree assault and ACA. He also acknowledged that, by pleading guilty, he would be giving up his rights to have a trial, confront the witnesses against him and present evidence on his own behalf. The following colloquy then took place:
[THE COURT] Listen to the facts the prosecutor says they would prove if we had a trial, and if they are different than the facts that you remember, let me know.
[Prosecutor]: Judge, the evidence would be on the evening of March 13, 2001, this defendant entered the Security Locksmith located at 133 West Malone Street in Sikeston, Missouri. When he entered that residence, he was armed with a deadly weapon, being a hand gun. He approached the owner of the locksmith store, Mr. David Holmes, and demanded money from Mr. Holmes with a pistol in his hand. At one point the defendant sat the pistol on the counter top while Mr. Holmes was collecting money.
The defendant began counting the money on the floor with the pistol out of his hand. The victim, Mr. David Holmes, made an attempt to acquire the pistol from the defendant and a struggle ensued between the defendant and Mr. Holmes. At one time the defendant discharged the gun into Mr. Holmes' upper chest shoulder area. At which point the defendant stood above Mr. Homes and attempted to shoot Mr. Holmes three additional times with the pistol. However, the pistol jammed and did not fire those three additional times. At that point the defendant grabbed Mr. Holmes by the the [sic] head and hair and dragged him to a locked safe that was locked in the safe and demanded more money from Mr. Holmes. As Mr. Holmes was bleeding, he explained that he could not see because his glasses had been knocked off, and this defendant began striking Mr. Holmes in the head with the pistol. The safe was opened and more money gained and the defendant left with the amount of money he had gained from Mr. Holmes, left 133 West Malone heading towards his apartment building where he was living.
Mr. Holmes in desperation dialed 911 and was in a semiconscious state when the ambulance arrived and took him to the Missouri Delta Hospital. At Missouri Delta Hospital Mr. Holmes was operated on by Dr. Helfrich. At which point he flat lined approximately three times on the operating table and eventually recovered from the gun shot wound and regained consciousness several days later. Upon regaining consciousness he did speak to Detective Keith Lawson and identified the defendant as the one who had robbed and assaulted him.
The night of the assault though, Detective Mike Williams responded to the Missouri Delta Medical Center to check on the status of the victim, Mr. Holmes, and make contact with this defendant at Missouri Delta Hospital. The defendant did have his hand wrapped in a bandage, and it was believed he actually shot himself in the process of shooting Mr. Holmes.
At the locksmith store there were numerous amounts of money and blood soaked money leading towards his apartment building.
Detective Armour from the Department of Public Safety suspected Louis Mosby and made contact with Mrs. Mosby and consent to search the residence was given, and in the bathroom area several bloody towels were located in the bathroom and information was gained that this defendant may have went to another residence located on Ruth Street. Contact was made at that residence and additional blood was found at that residence and statements were obtained from Miss Johnson that Mosby indicated he had shot himself and was bleeding.
Eventually Deputy Bobby Sullivan stopped a vehicle on Ruth Street where he was a passenger, and in the search of the vehicle found blood soaked money from the crime scene. The gun shot residue test was positive for this defendant handling a firearm. Mr. Mosby was taken into custody and after being read his Miranda Rights, gave a statement stating that he did participate and was the person who robbed David Holmes and was the person that shot David Holmes. Later that morning on March 14, Mr. Mosby gave a more detailed statement of the robbery and the assault and how it took place. Therefore, the State would be able to move [sic] that this defendant attempted to kill or cause serious physical injury to David Holmes by shooting him and in the course thereof, inflicted serious physical injury to David Holmes. This assault took place in Sikeston, Scott County, Missouri.
In regard to Count III, the defendant did commit the felony of assault in the first degree with the use, assistance and aid of a deadly weapon, with the pistol that was used to discharge the bullet that struck Mr. David Holmes.
After a brief discussion off the record, the following additional colloquy took place:
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