State v. Antwine

• Decision Date: 15 December 1987
• Docket Number: No. 67720,67720
• Citation: 743 S.W.2d 51
• Parties: STATE of Missouri, Respondent, v. Calvert Leon ANTWINE, Appellant.
• Court: Missouri Supreme Court

Page 51

743 S.W.2d 51

56 USLW 2379

STATE of Missouri, Respondent, v.Calvert Leon ANTWINE, Appellant.

No. 67720.

Supreme Court of Missouri En Banc.

Dec. 15, 1987.

Rehearing Denied Jan. 20, 1988.

David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

Appellant, Calvert Leon Antwine, was charged by indictment on February 1, 1985, with two counts of capital murder, two counts of armed criminal action ¹ and one count of first-degree robbery.The case proceeded to trial before a jury in the Circuit Court of Jackson County on August 22, 1985.Appellant was convicted of first-degree robbery, ² second-degree murder ³ and capital murder, ⁴ for which he was sentenced to thirty years imprisonment, life imprisonment, and death, respectively.Appellant appeals from his convictions and sentences.

Because the trial court imposed a sentence of death, this Court is vested with exclusive appellate jurisdiction.Mo. Const. art. V., sec. 3.

While this case was pending on direct appeal to this Court, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), overrulingSwain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759(1965), the law governing the jury composition issue at the time of trial.In our original opinion of January 13, 1987, we denied appellant's Batson argument on the basis of State v. Lockett (Mo. banc 1986)(No. 68186, decided December 16, 1986), in which we held that Batson should not be given retroactive application.On January 13, 1987, the United States Supreme Court effectively overturned Lockett, deciding that Batson had retroactive effect to "all cases, state or federal, pending on direct review or not yet final."Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649(1987).In light of Griffith, we remanded, sua sponte, this case to the trial court"for the purpose of determining the validity of appellant's constitutional claim under Batson."On remand, the trial court conducted a hearing on the Batson issue, finding that appellant failed to establish a prima facie case of discrimination in the State's use of its peremptory challenges.On rehearing, we again affirm both the judgments of guilt and the sentence of death.

I.

At approximately 6:00 p.m. on November 11, 1983, appellant arrived at 2108 Vine Street where several men were refurbishing a restaurant for the owner, Eric George Jones("George").Appellant, who was known by the workers, asked where George Jones or his brother, Winston, could be found.When the workers, who were involved in a crap game, appeared to ignore appellant, appellant decided to "bust up" the crap game.He produced a handgun and announced, "This is a stick up."After firing several shots into the wall and hitting a space heater, appellant took money from the workers and left the restaurant.

From the restaurant, appellant immediately proceeded to the Lincoln Garden Apartments, located a block away from the restaurant.There he encountered Joy Jones, the sister of George and Winston Jones, who was leaving the apartment she shared with Winston.Joy was several yards from the doorway to her apartment when she saw appellant approaching.When she asked him what he wanted, appellant indicated that he was looking for George and Winston.When Joy asked what he wanted with her brothers, appellant said he was going to kill them.Appellant proceeded to the doorway where he demanded that Winston open the door.Winston cracked open the door, whereupon appellant forced his way in.As the apartment door closed, Joy ran to the restaurant to look for George.

Shirley Ford and her daughter, LaTanya, lived in an adjacent apartment.They observed appellant forcing his way into Joy's apartment, saw that he was carrying a gun, and heard appellant yell, "I'm going to kill all of you mother _______."After appellant entered the apartment, Shirley and LaTanya heard shots.Shirley called the police.She observed appellant leaving the apartment carrying a gun and a black bag.Appellant entered a gold and black car and drove away.

Police officers later found Winston Jones lying face down on the living room floor of the apartment with three gunshot wounds in his head.At trial, the medical examiner testified that two of the wounds were caused by a weapon fired while flush against the skin.Other items found in the apartment included a large quantity of marijuana and twelve hundred dollars in cash.

After leaving Joy's apartment, appellant proceeded to a house at 26th and College from which the Jones brothers operated a drug business.While appellant was there, George Jones arrived with Joy and two others.George knocked on the door where he was met by appellant with a gun in his hand.George turned and fled.Appellant gave chase and caught him.Joy heard appellant say, "I just killed your brother and I'm going to kill you too."Appellant directed George at gun point back to the car and forced George to drive.

Sometime between 6:00 and 7:00 p.m., two police officers were separately dispatched to the intersection of 34th and Prospect on a disturbance call.Upon arrival, the officers observed appellant and George struggling in the middle of the street over the possession of a handgun.The officers approached, secured the gun and broke the two men apart.Both appellant and George were placed under arrest, handcuffed behind the back and put into a paddy wagon for transport to the police station.While in the paddy wagon, appellant stepped through his arms so that his hands were in front of his body.

Upon arrival at the station, Officer Schilling, the paddy wagon driver, placed George and appellant in a holding cell.Approximately five to ten minutes later, Officer Schilling heard a scream coming from the holding cell and ran back to investigate.He and another officer, Detective Lonkansky entered the cell and found George lying face down on the floor, semiconscious and bleeding from the nose and mouth.Appellant was seated on a bench three to four feet away.

Officer Schilling left the cell to call an ambulance.Realizing that he was wearing his service revolver, Detective Lonkansky called for assistance and stepped out of the cell.He had walked approximately four feet when he heard a loud thumping sound.Turning, he saw appellant in midair, coming down with both feet on the side of George's head.Detective Lonkansky again shouted for assistance.Appellant sat back down on the cell bench, picked up a rag off the floor and calmly proceeded to wipe the blood off of his shoes.The medical examiner testified that George Jones died as the result of a blunt force injury to the head, and that such injury was consistent with being kicked, stomped or beaten against a concrete floor.

Appellant contended that he killed the Jones brothers in self-defense.More specifically, appellant urged the jury to believe that he wanted out of the drug business, in which he was engaged with the Joneses, and that the Joneses threatened to kill him if he carried out his intention to quit.

The jury ⁵ found appellant guilty of capital murder for the killing of George Jones, guilty of second-degree murder for the killing of Winston Jones, and guilty of second-degree robbery.In the punishment phase of trial, the jury imposed a sentence of life imprisonment for second-degree murder, thirty years imprisonment for first-degree robbery, and death for capital murder.On appeal, appellant raises twenty-two points of error.We have reviewed all of appellant's points with great care.Only meritorious points will be discussed.

II.

We first consider appellant's argument that the two counts of capital murder and one count of first-degree robbery were improperly joined.Prior to trial, defense counsel filed a motion to sever Counts I and II (charging capital murder of Winston Jones and armed criminal action) and Count III (charging capital murder of George Jones), and to sever Counts IV and V (charging robbery and armed criminal action) from Counts I, II and III.The motion was denied.

Appellant contends that Section 545.140.2, RSMoCum.Supp.1984(effective August 13, 1984), does not apply in this case, that the charges against him were improperly joined under Rule 23.05 because his offenses were separate and distinct transactions, and alternatively, that the trial court abused its discretion under Rule 24.07 by refusing to sever the offenses for trial.Appellant further asserts that the trial court erred in submitting the punishment for robbery to the jury during the punishment phase of the trial.

A.

Initially, appellant asserts that Section 545.140.2 is not applicable to this case.Instead, appellant argues that the joinder issue should be decided under Rule 23.05.⁶Under Rule 23.05, the propriety of joining two or more offenses in the same indictment or information depends upon the existence of a "common scheme or plan."

"[T]he essential test in determining whether a common scheme or plan exists, ... is the requirement that all the offenses charged must be 'products of a single or continuing motive.' "(emphasis in original), State v. McCrary, 621 S.W.2d 266, 271(Mo. banc 1981);State v. Foerstel, 674 S.W.2d 583, 589(Mo.App.1984).For the reasons which follow, we need not determine whether Section 545.140.2 applies in this case.

We believe that the offenses charged against appellant were the product of his continuing motive to kill George and Winston Jones.After appellant arrived at the restaurant, his first act was to ask the workers there whether they had seen George or Winston.When the men ignored his question, appellant decided to get their attention; he robbed them.He then left the restaurant and immediately went to Joy Jones' apartment, continuing the search for George and Winston he began at the...