State Of Mo. v. Rollins

• Decision Date: 31 August 2010
• Docket Number: No. WD 69814.,WD 69814.
• Citation: State v. Rollins, 321 S.W.3d 353 (Mo. App. 2010)
• Parties: STATE of Missouri, Respondent, v. Tommy ROLLINS, Jr., Appellant.
• Court: Missouri Court of Appeals

321 S.W.3d 353

STATE of Missouri, Respondent,

v.Tommy ROLLINS, Jr., Appellant.

No. WD 69814.

Missouri Court of Appeals,Western District.

July 13, 2010.

As Modified Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

S. Kate Webber, Kansas City, MO, for appellant.

Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.

Before LISA WHITE HARDWICK, C.J., JAMES M. SMART, JR., and CYNTHIA L. MARTIN, JJ.

JAMES M. SMART, JR., Judge.

Tommy Rollins, Jr., was convicted in Jackson County Circuit Court of first-degree assault of a law enforcement officer, armed criminal action, first-degree assault, and unlawful possession of a weapon. On appeal, he seeks a new trial on the ground that the court improperly overruled his objections to the State's peremptory challenges in the jury selection. He also seeks a new trial on the ground that the court erred in refusing to give the instruction he requested as to abandonment or renunciation of criminal purpose. We affirm the convictions.

Background

In late May 2005, Rollins was angry that he had been discharged from his job as a custodian at an elementary school. Rollins decided he wanted to take revenge on the principal, Dred Scott, by killing Scott at his home. He looked up Scott's address. He went to the internet and obtained directions to Scott's house. Rollins purchased a semi-automatic handgun, loaded it, and also put together two firebombs consisting of gasoline in bottles with washcloths for wicks.

At approximately 2:00 a.m. on May 28, 2005, Rollins was en route from his residence in Grandview to Scott's house in Independence, driving along I-470 northbound toward the exit for Scott's house, when his vehicle caught the attention of Missouri State Highway Patrolman Brandon Brashear. Trooper Brashear, noted that Rollins was speeding and decided to stop Rollins' vehicle for speeding. As Brashear climbed out of his cruiser to walk toward Rollins' car, Rollins drove away. Brashear got back into his patrol car and pursued Rollins. The chase began near the exit for Woods Chapel Road on I-470 North. Several miles down the highway, near the Lakewood exit, Rollins pulled to the shoulder and stopped. Brashear again parked behind Rollins. Rollins emerged from his vehicle with the semi-automatic handgun. Brashear, who was exiting from his vehicle and in the process of unholstering his gun, yelled at Rollins to drop the weapon, but Rollins immediately commenced firing. Rollins, with his initial actions recorded on video by the police car's dash camera, advanced toward Brashear, firing his handgun, hitting Brashear, and forcing Brashear to try to seek refuge behind his vehicle. Rollins followed Brashear while firing. He swore at the trooper and yelled, “You're going to die, you're going to die.” Brashear fell face first to the ground in the grass off the shoulder. Rollins walked up behind Brashear, as though to finish the execution, fired another shot into Brashear's back and another shot at Brashear's head. The shot into the back struck Brashear between the shoulders but missed the spinal column. The other shot struck the trooper's jaw and lodged in his left cheek. Brashear, still conscious, heard Rollins get back in the car and drive away.

Almost immediately thereafter, an Independence police officer came upon the scene. Brashear was flown by helicopter to a hospital. Emergency personnel concluded Brashear had been hit with at least twelve bullets. Miraculously, Brashear survived. Moreover, though he underwent numerous surgeries and therapeutic procedures, and bears permanent residual effects from the shooting, Brashear was able eventually to return to duty as a state trooper.

Back to Rollins and his actions on the date in question. Following the attack on Brashear, Rollins continued to the area where Mr. Scott lived with his wife and young child. He passed several exits, then exited the highway at Hidden Valley Road and turned right on 31st Terrace. He followed that street to Scott's subdivision, which he had not previously been in. He found very winding, confusing streets. He drove around the neighborhood in the dark, perhaps without being able to identify Scott's house. ¹ Sometime after entering the subdivision, he left the gun and the firebombs in the weeds in a lot in the subdivision. He said he threw them out of the window of his car. He then drove to a bar near the highway exit. He entered the bar and told the bartender that he had just shot a police officer and wanted to turn himself in.

The police arrived, entered, and arrested Rollins, who was unresponsive to commands and had to be physically restrained and handcuffed. At the police station, Rollins was advised of his rights and interviewed. He said he was angry with Scott for firing him and that he was on his way to “get” Scott. Rollins was also angry that he had been stopped by Trooper Brashear, and he thought the stop was a result of racism. Rollins said he tried to flee from Brashear. When the trooper chased him, Rollins said, he thought the stop might end in a shooting. He said he feared that Brashear would shoot him, and he said to himself, “I'll give him a reason to shoot me.”

Rollins was charged in Jackson County Circuit Court with first-degree assault on a law enforcement officer under section 565.081, ² armed criminal action under section 571.015, first-degree assault (as an attempt) under section 565.050, and unlawful possession of an illegal weapon under section 571.020. ³ Rollins entered a plea of not guilty, contending that he was not guilty by reason of mental disease or defect excluding responsibility.

After the trial in 2008, the jury found Rollins guilty on all counts. The jury recommended that Rollins be sentenced to life imprisonment for the first-degree assault of Trooper Brashear, life imprisonment for the associated armed criminal action, fifteen years of imprisonment for the first-degree assault (attempt) as to Scott, and seven years of imprisonment for possession of the firebombs. The court followed the jury's recommendations in imposing sentence.

Alleged Instructional Error

We first take up Rollins' second point on appeal, in which Rollins asks for a new trial on the basis that the trial court erred in refusing an instruction to the jury that would have allowed the jury to find, as a defense to the first-degree assault involving Mr. Scott, that Rollins had, after arriving at Scott's neighborhood, abandoned his criminal purpose to assault Mr. Scott.

Claims of instructional error are reviewed de novo. Marion v. Marcus, 199 S.W.3d 887, 893 (Mo.App.2006). If the instruction is required or authorized by law and is material to the issues to be decided by the jury, and if the evidence supports the giving of the instruction, the trial court must give the instruction. Id. at 892-93 ( citing Rule 70.02(a)).

Here, the defendant was charged with violation of section 565.050.1, which provides:

A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.

(Emphasis added.) We see from the statute that the crime of first-degree assault is committed by an “attempt” to kill or to cause serious physical injury (as well as, of course, by the completion of the act causing injury or death). Either way, attempted or completed injury, it is first-degree assault.

Voluntary Abandonment

The instruction Rollins sought was as follows:

As to count 3, if you find and believe from the evidence that the Defendant voluntarily abandoned his plan to assault Dred Scott by throwing the Molotov cocktails and firearm out of the window of his car, then you must find the Defendant not guilty of the first degree assault of Dred Scott as submitted in Instruction No. ____.

The concept of “attempt” in Missouri is governed by section 564.011. State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). This includes the concept of attempt within the first-degree assault statute (section 565.050.1), as well as attempts to commit other offenses. Id.; see State v. Williams, 126 S.W.3d 377, 381 (Mo. banc 2004). Section 564.011.1 states:

A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A “substantial step” is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

This statutory provision, borrowed from the Model Penal Code, became effective January 1, 1979. ⁴ Withrow, 8 S.W.3d at 79. Prior to that time, Missouri employed the concept of attempt derived from the common law, which recognized abandonment of criminal purpose as a defense. Section 564.011 replaced the former section 556.150, which “contained a tougher test for attempt” in accordance with common law concepts. State v. Molasky, 765 S.W.2d 597, 600 (Mo. banc 1989). The “tougher language” of earlier law had required steps beyond “mere preparation” and required an action going also to “perpetration,” by “doing something bringing him nearer the crime he intends to commit.” Id. Also recognized was the common law doctrine of abandonment as a defense:

There is in every design or plan to commit a crime a place of repentance or locus penitentiae whereby the one planning to commit it may abandon the idea and thus avoid criminal liability.

State v. Bailey, 383 S.W.2d 731, 734 (Mo.1964) ( quoting 15A Am.Jur. Criminal Law, section 333 (1958)). Neither former section 556.150 nor current section 564.011 contains any provision related to the common law concept of abandonment or renunciation. It is theoretically conceivable that the concept could have survived the recodification of the law of attempt in section 564.011, since it was a common law concept. However, Appellant Rollins provides no authority to that effect, and we have been unsuccessful in...