State v. Arbuckle
| Decision Date | 11 October 1991 |
| Docket Number | No. 17094,17094 |
| Citation | 816 S.W.2d 932 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Bret A. ARBUCKLE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
John R. LePage, Evenson, Carlin & LePage, Pineville, David Post and Tim Morris, Fayetteville, Ark., for defendant-appellant.
Count I of an information charged that defendant Bret Alan Arbuckle committed murder in the first degree, § 565.020.1, on June 20, 1989, in that he did, after deliberation, knowingly cause the death of Angela Lyn Fortner by shooting her. Count II of that information charged that he committed the felony of armed criminal action, § 571.015.1, by committing the foregoing felony of murder in the first degree by the use of a deadly weapon. The trial court instructed the jury on murder in the first degree and conventional murder in the second degree, § 565.021.1(1), and armed criminal action in respect to each of those submissions. The trial court refused to give instructions on voluntary manslaughter, § 565.023.1(1), and involuntary manslaughter, § 565.024.1(1), tendered by the defendant. The jury found the defendant guilty of murder in the second degree and armed criminal action. He was sentenced to imprisonment for life upon the conviction for murder in the second degree and imprisonment for 30 years on the conviction for armed criminal action. The sentences were ordered to run consecutively. The defendant stated three points on appeal. Those points make necessary an outline of the circumstances which resulted in the tragedy.
Angela Lyn Fortner, Sonja Foust and Heather LaSalle were teenage girl friends who lived in the Miller vicinity. They decided that on the evening of June 19, 1989, they would camp on Billy Creek, a small stream near Sonja's home. Accompanied by Jeff Strahley, Angela's boyfriend, they set up a tent on the bank of the stream. They had chairs and other gear. Their supplies included some beer and peach schnapps. At about 5:30 p.m., the group drove to Miller for pizza. While in Miller, they saw Chesari Kleeman and Joey Burton. Those two were invited to the camp. Angela and Jeff were left at Angela's nearby home to cook the pizza. Sonja and Heather returned to the camp. About 30 minutes later, Angela and Jeff arrived at the camp in Angela's pickup with the pizza. Chesari and Joey did come to the camp. They left about 11:30 p.m.
At the time of the tragedy, the defendant was 22 years old. His parents lived in the vicinity of Miller. He had been reared in the area. He had graduated from high school and lived by himself in the community. He was employed at a warehouse. He and the girls were acquainted. He and Angela were distant cousins and had been friends. His grandmother lived near Everton. The defendant started drinking at an early age. He had a "drinking problem" and had been counseled for alcoholism.
On the evening in question, he encountered David Reynolds in Miller. While in Miller, the defendant displayed a 9-mm. automatic pistol. David Reynolds learned of the campsite from Chesari. The defendant, accompanied by David, drove his car to the campsite. They arrived about 11:45 p.m. after Chesari and Joey had left. The defendant was described as being very drunk, acting wild. He grabbed the bottle of peach schnapps from Sonja, drank from it and threw the bottle away. He waved his gun around and pointed it at first one person and then another. He was asked if the pistol was loaded and he replied that it was. Clicking noises were heard.
Shortly after the defendant and David arrived, Angela and Jeff left the campsite for a short time. While they were gone, the defendant said to David, "Let's just f--- these two and leave", referring to Sonja and Heather. Sonja was frightened and ran from the camp. The defendant chased and caught her. He said if she left he would shoot her. He brought her back to the camp.
Jeff and Angela returned. The girls loaded most of the camping gear in Angela's pickup. In order to leave, the girls got in the pickup. Angela could not find her keys. After a search for them on the ground, she got back into the pickup. She said to the defendant, "Do you have my keys?" She and the defendant exchanged words. The defendant pulled her out of the pickup and forced her against the side of the pickup. The verbal exchange continued. The defendant was heard to say, "Listen to me." The defendant, who weighed about 210 pounds, got a headlock on Angela who weighed about 90 pounds. He was holding her against the side of the pickup and placed the gun against her neck and said, "Shut up or I will shoot you." Angela was heard to say "No, no." The gun fired. The bullet went through Angela's neck and lodged in defendant's arm. Angela quickly bled to death.
Defendant ran to his car. There he told David that he believed he shot Angela. He told David to get in the car. Defendant drove off. He asked David which way he was headed. David said to Mt. Vernon. Defendant responded by saying he did not want to go that way. He drove to the grandmother's home near Everton. Along the way, defendant had David remove the clip from the pistol, unload the clip and throw the shells out the window. In response to the grandmother's call, the defendant's father and brother came to the grandmother's home. They took defendant to the hospital in Aurora where he was arrested.
Defendant testified at his trial. He related the history and extent of his alcoholism. He said that on the evening in question he had been drinking in Miller. He estimated that he drank in excess of 12 beers. He returned to his home. He could not remember leaving his home or meeting David. All he could remember of the events of the evening was the following.
He testified that he did not commit the crime of murder in the first degree and was not aware his conduct was practically certain to cause the death of Angela. His testimony also included the following.
"Q. I want to know whether or not you coolly reflected and deliberated on it, coolly reflected and deliberated on it for any length of time, no matter how brief, before that trigger was pulled. A. No, sir.
Q. Are you negligent in this matter? A. Yes, I am.
Q. Are you reckless in this matter? A. Yes, I am.
Q. Are you careless in this matter? A. Yes, I am.
Q. Are you grossly negligent and careless and reckless the way you have acted in this whole thing? A. Yes, sir." (Emphasis added.)
The defendant's first point is that the trial court erred in refusing to give an instruction submitting his guilt of involuntary manslaughter, § 565.024.1(1). Such an instruction patterned upon MAI-CR 3d 313.10 was tendered by the defendant. The resolution of this point is governed by statute. The relevant parts of the applicable statutes provide:
"Second degree murder, penalty.--1. A person commits the crime of murder in the second degree if he:
(1) Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person; ...." § 565.021.1(1).
"Involuntary manslaughter, penalty.--1. A person commits the crime of involuntary manslaughter if he:
(1) Recklessly causes the death of another person; ...." § 565.024.1(1).
"Lesser degree offenses of first and second degree murder--instruction on lesser offenses, when.--1. With the exceptions provided in subsection 3 of this section and subsection 3 of section 565.021, section 556.046, RSMo, shall be used for the purpose of consideration of lesser offenses by the trier in all homicide cases.
2. The following lists shall comprise, in the order listed, the lesser degree offenses:
(1) The lesser degree offenses of murder in the first degree are:
(a) Murder in the second degree under subdivisions (1) and (2) of subsection 1 of section 565.021;
* * * * * *
(c) Involuntary manslaughter under subdivision (1) of subsection 1 of section 565.024;". § 565.025.1.2(1)(a), (c).
The latter subsection has been definitively construed:
"Section 556.046.2 limits the requirement of instructing down to those instances where there is some affirmative evidence of a lack of an essential element of the higher offense which would not only authorize acquittal of the higher but sustain a conviction of the lesser...." State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982). (Emphasis added.)
Also see State v. Green, 778 S.W.2d 326 (Mo.App.1989); State v. White, 738 S.W.2d 590 (Mo.App.1987); State v. Moore, 729 S.W.2d 239 (Mo.App.1987).
The criteria by which the evidence is to be measured to determine if it meets that mandate include the following.
"Instructions must be based upon substantial evidence and the reasonable inferences to be drawn therefrom." State v. Cole, 377 S.W.2d 306, 308 (Mo.1964).
Also see State v. Daugherty, 631 S.W.2d 637 (Mo.1982). That limitation of "reasonable inferences" has been stated in different terms.
...
To continue reading
Request your trial
-
State v. Howard, s. 18265
...evidence and [the] reasonable inferences to be drawn therefrom." State v. Daugherty, 631 S.W.2d 637, 639 (Mo.1982); State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App.1991). Additionally, a court can instruct a jury on alternative theories as long as each is supported by evidence. State v. Pric......
-
State v. Purlee
...at trial, and if an objection to the proffered evidence is sustained, the proponent must then make an offer of proof. State v. Arbuckle, 816 S.W.2d 932, 938 (Mo.App.1991); State v. Oliver, 729 S.W.2d 560, 563 (Mo.App.1987); State v. Smith, 725 S.W.2d 631, 633 In reference to the attempt of ......
-
State v. Westfall
...937 S.W.2d 205, 208-10 (Mo. banc 1996); Jones, 921 S.W.2d at 155; State v. Hopson, 891 S.W.2d 851, 852 (Mo.App.1995); State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App.1991). 6. State v. Davison, 46 S.W.3d 68, 75 (Mo.App.2001); State v. Daugherty, 631 S.W.2d 637, 639 (Mo.1982) (overruled on ot......
-
State v. Isom
...to kill the victim is not determinative, however, of whether an involuntary manslaughter instruction is authorized. State v. Arbuckle, 816 S.W.2d 932, 937 (Mo.App.S.D.1991). Rather, that testimony must be measured against the facts. Id. A testimonial denial of an intent to kill may not auth......