State v. Anderson, s. WD

• Decision Date: 26 October 1993
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. Jeffrey L. ANDERSON, Appellant. 44616, WD 46599.
• Court: Missouri Court of Appeals

Page 571

867 S.W.2d 571

STATE of Missouri, Respondent, v. Jeffrey L. ANDERSON, Appellant.

Nos. WD 44616, WD 46599.

Missouri Court of Appeals,

Western District.

Oct. 26, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 30, 1993.

Application to Transfer Denied Jan. 25, 1994.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

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

BRECKENRIDGE, Judge.

Jeffrey Anderson appeals from his conviction for murder in the first degree, § 565.020, RSMo Cum.Supp.1992, and armed criminal action, § 571.015, RSMo 1986, for which he was sentenced to concurrent terms of life imprisonment without probation or parole and twenty years imprisonment, respectively. Anderson also appeals the motion court's denial of his Rule 29.15 motion for postconviction relief. Anderson raises five points on appeal arguing that: 1) the trial court erred in overruling Anderson's motions for judgment of acquittal because the state's evidence was insufficient to support the jury's findings of guilt beyond a reasonable doubt; 2) the trial court erred in sustaining the state's objection to a portion of defense counsel's closing argument; 3) the motion court erred in denying Anderson's Rule 29.15 motion for postconviction relief because Anderson was denied his right to effective assistance of counsel; 4) the trial court erred in overruling Anderson's pro se motion to dismiss or replace counsel because it denied him his right to trial counsel free from conflicts of interest; and 5) the trial court erred in submitting Instruction No. 4, patterned after MAI-CR3d 302.04, because the definition of reasonable doubt violated Anderson's right to due process.

The conviction and the judgment on the postconviction motion are affirmed.

Anderson resided at 4216 Park in Kansas City, Missouri. Anderson had an agreement with Quan Gray by which Gray paid Anderson for allowing Gray and his associates, Terry Boydston and Anthony Goins, to sell drugs out of Anderson's house. Larry Humphrey was also involved in the operation and served as the doorman at the house.

On August 19, 1989 at approximately 9:30 a.m., Officer Robert Micca of the Kansas City Police Department received a call to investigate a possible homicide at Anderson's residence. When Officer Micca and his partner arrived at the scene, Anderson was not at home and the front door of the house was locked. The officers entered the house by climbing through an open window at the rear of the house. They found the dead body of Gray lying on a sofa in the living room of the house. Further investigation indicated that Gray had been shot in the head. There were also bullet entry and exit holes in the couch pillows and cushions, as well as a spent bullet under the couch, indicating that a bullet had also been fired into the couch.

The officers observed that the front pocket of Gray's pants was pulled out. A loaded .22 caliber handgun was recovered from under the sofa cushion beneath Gray's head. The officers also found 2.1 grams of crack cocaine in a sleeper sofa, marijuana in the hanging light fixture in the dining room and marijuana behind a large clock in the kitchen.

An autopsy on Gray revealed that he died as a result of two bullet wounds to the head. All three bullets were fired from a .357 or .38 caliber gun. Although it was determined that the bullet which killed Gray and the bullet retrieved from under the couch were from the same gun, the third bullet was too badly damaged to be tested.

The police could not locate Anderson after discovering Gray's body. Officer Rick Pilgrim contacted Anderson's relatives in Texas concerning Anderson's whereabouts. A short time later, Anderson contacted Officer Pilgrim to turn himself in. Officer Pilgrim traveled to Texas to interview Anderson. After having been advised of his Miranda rights, Anderson told Officer Pilgrim that he had stolen Gray's car and taken $150 from Gray's pocket as Gray slept in a back bedroom of Anderson's house. Anderson told Pilgrim that he left for Texas before daybreak on August 19, 1989.

Anderson was indicted on one count of first degree murder and one count of armed criminal action. A jury trial was held. The testimony of several of Anderson's neighbors was presented at trial. Marilyn Handy testified that in the early morning hours of August 19, 1989, she had her neighbor drive her to Anderson's house to buy crack cocaine from Gray. Handy arrived at Anderson's house about 1:45 a.m. and Gray's car was parked across the street from the house at that time. When Handy approached the house, Anderson opened the front door slightly and said, "Ain't nobody here, nothing is happening, babe." When Handy kept walking toward the house, Anderson told her again that no one was there. Handy left, drove around for a little while and then went to her mother's residence, which was four or five houses away from Anderson's house, sometime between 2:00 and 2:30 a.m. She noticed that Gray's car was gone and that Humphrey was standing on the sidewalk in front of her mother's home. Handy went out to talk to Humphrey and they were "together off and on all night." Handy testified that Humphrey had fifteen to twenty bags of $20 cocaine in his possession.

Brenda Morris, a neighbor who lived next door to Anderson at 4220 Park, heard three consecutive gunshots at Anderson's house between 2:00 and 2:30 a.m. Morris went out on her porch and noticed that Gray's car was not parked outside Anderson's house. Morris went to a neighbor's house to use the telephone but the neighbor refused to open the door. Morris then went to Anderson's house where she heard a sound like snoring but no one answered the door. ¹ Morris sat on her porch until 4:00 a.m. but did not see any activity at Anderson's house.

Daniel Jones, a neighbor who lived at 4224 Park, testified that he had seen Gray and Anderson fighting on the front porch of Anderson's house a couple of days prior to the shooting. Gray punched Anderson, who moves slowly and walks with a cane, knocked him down and kicked him several times. Jones testified that the next day, Anderson came to Jones' house to make a collect telephone call to Texas. Anderson told the person he called in Texas that he would "probably be down there in a day or two." After the telephone call, Anderson told Jones that he was tired of the other men living in his house and that he wanted to get them out of his house. Anderson told Jones he was ready to kill Gray. Jones also testified that, on the morning of the shooting at about 2:30 a.m., he saw Anderson talking to Humphrey on the sidewalk.

At trial, the prosecution also presented the testimony of Craig Holmes who was incarcerated with Anderson in the Jackson County Jail on November 20, 1989. Holmes knew Anderson because he had previously paid Anderson to allow him to sell drugs out of Anderson's house. Holmes testified that Anderson told him that he had taken Gray's money, his car and his drugs and gone to Texas. Holmes stated that Anderson told him that he "hit the boy one time in his head" which Holmes testified meant that Anderson had "killed the boy."

The jury returned verdicts of guilty and Anderson was sentenced to life imprisonment on the murder conviction and twenty years imprisonment on the armed criminal action conviction, with the sentences to run concurrently. Anderson filed a pro se Rule 29.15 postconviction motion. After postconviction counsel was appointed, an amended motion was filed. An evidentiary hearing was held and the court denied Anderson's motion. Thereafter, this appeal was timely filed.

In his Point I, Anderson claims that the trial court erred in overruling his motions for judgment of acquittal at the close of the state's evidence and at the close of all the evidence because the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. Anderson specifically asserts that the evidence was purely circumstantial and that it failed to refute the reasonable hypothesis of innocence that Gray was shot and killed by someone other than Anderson.

The elements of murder in the first degree are that the accused (1) knowingly (2) causes the death of another person (3) after deliberation upon the matter. Section 565.020.1, RSMo Cum.Supp.1992. A person commits the offense of armed criminal action if the person commits a felony "by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon." Section 571.015.1, RSMo 1986. Anderson concedes that Gray was murdered by a deadly weapon, but challenges the state's proof of his participation in the commission of the crime.

Anderson argues that the state's case against him consisted solely of circumstantial evidence and, as a result, his conviction cannot be affirmed under the standard set forth in State v. Pritchett, 327 Mo. 1143, 39 S.W.2d 794, 796-97 (1931), unless the facts and circumstances relied upon to establish his guilt are consistent with each other and with the hypothesis of his guilt, and are inconsistent with his innocence and exclude every reasonable hypothesis of innocence.

Anderson's argument is without merit. Anderson's confession to Craig Holmes that he "hit the boy one time in the head" and that the boy was dead, was direct evidence that he shot Gray. State v. Mallett, 732 S.W.2d 527, 536 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). In addition, in State v. Grim, 854 S.W.2d 403, 408 (Mo. banc 1993), the Supreme Court of Missouri rejected the circumstantial evidence rule as stated in Pritchett. The Court applied to circumstantial evidence cases the existing standard utilized in direct evidence cases for review of sufficiency of the evidence as set forth in State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Under the Dulany standard, the court...