State v. Allison, WD

• Decision Date: 22 December 1992
• Docket Number: No. WD,WD
• Citation: 845 S.W.2d 642
• Parties: STATE of Missouri, Respondent, v. Shelton H. ALLISON, Appellant. 45421.
• Court: Missouri Court of Appeals

Page 642

845 S.W.2d 642

STATE of Missouri, Respondent, v.Shelton H. ALLISON, Appellant.

No. WD 45421.

Missouri Court of Appeals Western District.

Dec. 22, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Dec. 22, 1992.

Application to Transfer Denied Feb. 23, 1993.

Robert G. Duncan, Duncan, Coulson, Schloss, Chancellor & Norris, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before TURNAGE, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

Shelton Allison(Allison) appeals from his conviction for voluntary manslaughter, § 565.023, RSMo 1986, ¹ and armed criminal action, § 571.015.1, for which he was sentenced to concurrent five and three-year terms of imprisonment, respectively.Allison raises three points on appeal.In his first point, Allison argues that the guilty verdict was not supported by sufficient evidence to establish the absence of self-defense beyond a reasonable doubt.Secondly, Allison asserts that the trial court erred in submitting to the jury in the self-defense instruction the issue of whether or not Allison was the initial aggressor.In his third point, Allison argues that the trial court erred in sustaining the State's objection during his direct examination to a question asking whether Allison believed the deceased could do him serious physical harm.

The judgment is affirmed.

David Biggins spent the night at Allison's home on October 4, 1990 in Kansas City, Missouri.Allison lived at the house with his brothers, Haston Allison(Haston) and Fred Allison.Biggins weighed 245 pounds and was 5'11"'.Allison weighed 210 pounds and was 6'3"'.

On the morning of October 5, 1990, Biggins and Allison went to Biggins' place of employment to pick up Biggins' paycheck.The two returned to Allison's home about noon after stopping to purchase liquor.Biggins, Allison and Haston sat on the porch drinking and talking.Biggins and Haston made another trip to the liquor store later in the afternoon.Biggins asked Allison to hold his wallet while he was gone to the liquor store.Allison testified that he gave Biggins' wallet back to him when Biggins returned and they continued to drink.

Later, Allison cut a neighbor's hair and Biggins' hair.Allison testified that shortly after he cut Biggins' hair, Biggins complained that his wallet was missing.Allison told Biggins he had last seen the wallet in Biggins' shoes.Biggins put on his shoes, walked into the house and then came back out to the porch.Biggins again complained to Allison, in a loud and angry manner, that his wallet was missing.

Allison testified that he asked Biggins to leave several times before going into the house to put the clippers away in his bedroom.Biggins followed Allison into the house.Allison testified that Biggins was "slamming stuff around" and beating on the dining room table and the television.Allison returned from his bedroom with a .22 caliber rifle.Allison testified that Biggins grabbed him by the throat, slammed him into the wall and broke the window by pushing Allison's head through it.The rifle discharged, which Allison says was accidental, striking Biggins in the left hip.Allison's testimony was that Biggins backed off only momentarily after being shot in the hip and then came charging back at Allison spouting verbal threats.Allison fired three more times fatally wounding Biggins.Allison testified that he shot Biggins because he was "frightened."

During this altercation, Haston Allison was speaking on the phone, first with his mother, Freddie Williams, and then with a friend, Bryan Skannal.Williams testified that she could hear yelling and banging in the background but could not identify the voices until Haston explained the situation.Williams testified that she heard Allison say "Go on man, I'm not going to let you hurt me" and the sound of glass breaking.Williams drove to Allison's home immediately after the phone conversation.She arrived after the shooting but before the police.

Bryan Skannal testified that he recognized the voices of Biggins and Allison arguing in the background as he talked to Haston on the telephone.In contrast to Williams' testimony, Skannal testified that he heard Allison threaten Biggins with physical harm.

Allison hid the gun under the kitchen sink after the shooting but told the police where the gun was when they arrived.Crime scene investigator Edwin Stowicki testified that, other than a broken window, there were no signs of a struggle, such as overturned furniture or scuff marks on the floor.Police officer Kevin Sullivan testified that he examined Allison for glass fragments and cuts, abrasions or marks that would be evidence of a struggle and found none.

Biggins' wallet was discovered, at the morgue, in his left sock just above his shoe.The autopsy revealed that Biggins was shot from a distance of at least eighteen inches and that his blood alcohol level was .245 percent.

Allison was charged by indictment in the Circuit Court of Jackson County with the class A felony of murder in the second degree, § 565.021, and armed criminal action, § 571.015.1.At trial by jury, second degree murder and the lesser included offense of voluntary manslaughter, as well as a self-defense instruction, were submitted to the jury.Allison was found guilty of the class B felony of voluntary manslaughter, § 565.023, and armed criminal action.Following the jury's recommendation, the court imposed prison sentences of five years and three years to be served concurrently.This appeal followed.

Allison argues in his first point on appeal that the evidence did not establish, beyond a reasonable doubt, the absence of self-defense because the evidence showed that Allison reasonably acted to defend himself against serious injury by Biggins who had been ordered to leave Allison's house and refused, grabbed and pushed Allison into a window, and came at Allison in a threatening manner even after a gun was pointed at him.Deadly force may only be used in self-defense when the following four elements are present: (1) an absence of aggression or provocation on the part of the defender; (2) a real or apparently real necessity for the defender to kill in order to save himself from an immediate danger of serious bodily injury or death; (3) a reasonable cause for the defender's belief in such necessity; and (4) an attempt by the defender to do all within his power consistent with his personal safety to avoid the danger and the need to take a life.State v. Chambers, 671 S.W.2d 781, 783(Mo. banc 1984).Once the defendant has injected the issue of self-defense into the case, the burden shifts to the state to prove the absence of self-defense beyond a reasonable doubt.State v. Stinson, 714 S.W.2d 839, 840(Mo.App.1986).

In reviewing the sufficiency of the evidence, the appellate court must consider the evidence, and the inferences drawn from it, in the light most favorable to the verdict and ignore all contrary evidence and inferences.State v. Feltrop, 803 S.W.2d 1, 11(Mo. banc 1991).On appeal, the court will limit its review to a determination of whether sufficient evidence existed from which the jury might have found the defendant guilty beyond a reasonable doubt.State v. Dulany, 781 S.W.2d 52, 55(Mo. banc 1989).The jury, not the appellate court, is responsible for weighing the reliability and credibility of the witnesses.State v. Sumowski, 794 S.W.2d 643, 645(Mo. banc 1990)."The jury is not bound by defendant's self-serving explanation."Dulany, 781 S.W.2d at 55.The jury may choose to accept or reject all, some or none of the testimony of any witness, including the defendant's testimony.Id.

Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to support the jury's finding that Allison did not act in self-defense.Only when undisputed and uncontradicted evidence clearly establishes self-defense is a defendant entitled to acquittal as a matter of law.State v. Christie, 604 S.W.2d 806, 808(Mo.App.1980).Where there is conflicting evidence or when different inferences can reasonably be drawn from the evidence, it is a question of fact for the jury whether the defendant acted in self-defense.Chambers, 671 S.W.2d at 782;Stinson, 714 S.W.2d at 841.Allison's reliability and credibility in light of the physical evidence, as well as the credibility of Williams and Skannal regarding their conflicting accounts of what they heard in the background when talking to Haston on the phone, were for the jury to decide.

The jury rejected Allison's version of the shooting and it was within its province to do so.The evidence in the light most favorable to the verdict shows aggression on Allison's part and that Allison failed to do all within his power to avoid the need to take a life.Allison left the porch, where the argument with Biggins began, to retrieve a rifle from his bedroom and then returned to the dining room to confront Biggins with the rifle.Allison's actions contributed to the escalation of the argument from a shouting match into a deadly confrontation.

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