State v. Barnes, 48897
| Citation | 708 S.W.2d 270 |
| Decision Date | 11 March 1986 |
| Docket Number | No. 48897,48897 |
| Parties | STATE of Missouri, Plaintiff-Respondent v. Stanley BARNES, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Debra Buie Arnold, St. Louis, for defendant-appellant.
William L. Webster, Leah A. Murray, Jefferson City, for plaintiff-respondent.
Defendant, Stanley Barnes, was convicted by a jury of second-degree murder and sentenced to twelve years imprisonment. Defendant appeals. We affirm.
On August 13, 1982, Todd Weems, the victim, celebrated his twenty-first birthday. During the course of this celebration, Weems met several of his friends at Forest Park to socialize and drink. Towards the end of the evening, Weems and a few of his friends left Forest Park, stopped at a liquor store to purchase more beer and then went to a friend's house to continue the celebration. While congregated in the alley behind the friend's house, Weems walked off from the group. Weems never returned.
After leaving the group behind the friend's house, Weems ran into Lindsey Washington. Washington, drunk and lost, asked Weems for directions to the Windsor Hotel. Weems and Washington started walking together towards the hotel when they encountered defendant. A fight ensued.
A group of defendant's friends were gathered nearby. When they heard someone shout "Help, help, they're trying to rob me," some of the members of the group rushed to the scene. An eyewitness saw defendant hitting Washington with a piece of pipe. He then saw defendant's brother, Eric Clemmons, rush up, grab the pipe and begin hitting Washington.
In the meantime, Weems had fled. Defendant then told the crowd two men had tried to rob him. Defendant, Eric and two other members of the group chased after Weems. Defendant caught up with Weems and punched him to the ground. Then Eric beat Weems with the same pipe he had earlier used to beat Washington. Weems was found dead the next morning.
In defendant's sole point on appeal, he contends the trial court committed plain error in submitting Instruction No. 7, acting with others in committing second degree murder. The Instruction reads:
A person is responsible for his own conduct and he is also responsible for the conduct of other persons in committing an offense if he acts with them with the common purpose of committing that offense, or if, for the purpose of committing that offense, he aids or encourages the other persons in committing it.
As to Count I, if you do not find the defendant guilty of capital murder, then you must consider whether he is guilty of murder in the second degree.
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
then you are instructed that the offense of murder in the second degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
then you will find the defendant guilty under Count I of murder in the second degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the propositions submitted in this Instruction, you must find the defendant not guilty under Count I of that offense.
Defendant argues the use of the disjunctive--"defendant or other persons"--in the Instruction does not require the jury to find the occurrence of second-degree murder as a predicate to conviction, and, therefore, defendant reasons, his conviction cannot stand. We disagree.
At trial, defendant did not object to Instruction No. 7 being given, and, in his motion for a new trial, he did not raise the issue of the use of the disjunctive "or" in the Instruction. Defendant, thus, is confined to a complaint based on plain error. E.g., State v. Moland, 626 S.W.2d 368, 370 (Mo.1982).
Instruction No. 7 was in full compliance with MAI-CR2d 2.12. The Notes on Use clearly state: when the evidence shows defendant and another person jointly committed an offense, then, "each element from the verdict director for the offense should be ascribed (as supported by the evidence) to ... the defendant or the other person or persons,...." MAI-CR2d 2.12 Notes on Use 6(b) (emphasis original). This use of the disjunctive has been authorized during most of the form instruction's existence since its inception in 1975. Since the submitted Instruction was authorized, we cannot declare that Instruction erroneous. E.g., State v. Bruce, 671 S.W.2d 821, 822 (Mo.App.1984). A fortiori, its use was not plain error. E.g., State v. Stevenson, 660 S.W.2d 236, 237 (Mo.App.1983).
We choose, however, to address more fully the merits of defendant's contention.
Defendant argues Instruction 7 has at least seven plausible interpretations, all requiring reversal. The first three, defendant contends, reflect acceptable statements of the law but are not supported by the evidence, and, the other four, defendant argues, improperly permit the jury to convict without first finding second degree murder had occurred. We disagree.
Under defendant's first three interpretations, defendant could be convicted solely on his own actions or could properly be held accountable for the behavior of others. 1 However, defendant argues, the evidence here shows the crime was committed entirely by someone else, namely defendant's brother, Eric. Defendant then concludes the use of the disjunctive in the Instruction was...
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State v. Dulany
...actions advanced the criminal enterprise and rendered her just as guilty as if she alone committed the acts. State v. Barnes, 708 S.W.2d 270, 273 (Mo.App.1986). Additionally, Note 6(d) of the Notes on Use to MAI-CR 2d 2.12 contains the following self-limitation: NOTE: Any variation in ascri......
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Clemmons v. State
...He asserts his trial counsel should have argued that his brother inflicted the fatal blows in the first murder because State v. Barnes, 708 S.W.2d 270 (Mo.App.1986), indicates Clemmons's brother, Stanley Barnes, inflicted the fatal blows upon the victim, Todd Barnes states that while Clemmo......
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State v. Thompson
...advanced the criminal enterprise and rendered her just as guilty as if she alone committed the acts. See id. (citing State v. Barnes, 708 S.W.2d 270, 273 (Mo.App.1986)). Then, the Court noted that the MAI-CR 2d 2.12 Note on Use 6(d) contained a self-limitation that any variation in ascribin......
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State v. Van Black, 14514
...(Mo.App.1983). Also see State v. Fant, 714 S.W.2d 916 (Mo.App.1986); State v. Reasonover, 714 S.W.2d 706 (Mo.App.1986); State v. Barnes, 708 S.W.2d 270 (Mo.App.1986). The defendant's second point is that the judgment must be reversed because "[t]he trial court erred in permitting the state,......