State v. Bell, s. 60067

• Court: Missouri Court of Appeals
• Writing for the Court: KAROHL
• Citation: State v. Bell, 854 S.W.2d 612 (Mo. App. 1993)
• Decision Date: 18 May 1993
• Docket Number: 62292,Nos. 60067,s. 60067
• Parties: STATE of Missouri, Respondent, v. Kenneth BELL, Appellant. Kenneth BELL, Movant-Appellant, v. STATE of Missouri, Respondent.

Page 612

854 S.W.2d 612

STATE of Missouri, Respondent, v. Kenneth BELL, Appellant.

Kenneth BELL, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 60067, 62292.

Missouri Court of Appeals,

Eastern District,

Division Seven.

May 18, 1993.

John A. Klosterman, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Chief Judge.

In this consolidated appeal, defendant, Kenneth Bell, contests convictions of murder first degree, armed criminal action, two counts of assault, burglary, tampering with physical evidence and denial of Rule 29.15 relief without an evidentiary hearing. We affirm denial of post conviction relief and all convictions and sentences except the murder conviction which is reversed and remanded because of prejudicial error in the verdict-directing instruction on that charge.

The charges were proven by the following evidence. On March 19, 1990, Mario Thomas was playing with his brother, the Allen twins who lived next door, Darerus Williams and Andre Johnson at his family's apartment. After Williams and Johnson left, the discussion turned to gang affiliations. The Allen twins indicated they wanted to "smack" Williams and Johnson for their choice. Mario left the apartment to make the two aware of the twins' comments. Williams and Johnson returned with Mario but Mario's mother stopped any potential outburst.

The gang Williams and Johnson belonged to was led by defendant, who was also informed of the Allen twins' statements while at Williams's house. Defendant told Williams to bring him a gun. Defendant wiped off the bullets and loaded the gun. Williams and defendant then proceeded to the Allen house, defendant carrying the gun.

Upon reaching the house, they went up the back stairs. Williams kicked in the back door and defendant began shooting into the apartment. The twins' ten year old brother, Rickey Allen, was shot and bled to death. Their mother and sister escaped after defendant shot at them. Rickey's sister was able to identify defendant.

Defendant raises three points on direct appeal through counsel and ten pro se points included in counsel's brief. Defendant first contends error in defining reasonable doubt as firmly convinced. Repeatedly, this court has rejected this theory under State v. Griffin, 848 S.W.2d 464 (Mo banc 1993). Point denied.

Defendant also argues the grand and petit jury selection procedures constitute error. Both procedures were upheld in prior opinions of this court. See, State v. Landers, 841 S.W.2d 791 (Mo.App.E.D.1992) and State v. Allen, 845 S.W.2d 671 (Mo.App.E.D.1993). Point denied.

The next contention of error involves only the murder first degree conviction. Defendant argues Instruction No. 6, the verdict director, was improper in that it lowered the state's burden of proof. We agree the instruction was incorrectly submitted and remand for a new trial on this charge only.

Defendant was charged through indictment on the murder charge as follows:

... that the defendant and another person, in violation of Section 565.020.1 RSMo, committed the class A felony of murder in the first degree ... in that on or about the 20th day of March, 1990, ... the defendant and another person, after deliberation, knowingly killed or caused the death of RICKEY ALLEN by shooting him....

The state tried the case under the theory defendant was the shooter. The evidence to prove defendant was the shooter has been noted. However, a police officer testified defendant made a post arrest statement he was an accomplice, not the shooter. The statement was on a tape played for the jury. The tape is not included in the record on appeal and was not transcribed into the transcript. We conclude from a lengthy statement of the trial court that the taped statement of defendant would, if believed, support a conviction of the charged crime as an accessory only.

The court on its own motion, submitted a hybrid MAI CR-3rd combination of 304.04 and 313.02. The court accepted full responsibility for any resulting problems. The problems stem from what the court saw as opposing evidence presented by the state, defendant was the shooter and not the shooter. On either theory, he could be guilty of the charged crime. The court sought to submit both theories to prevent a not guilty verdict because a juror believed defendant's statement that he was a participant and a look-out but not the shooter. The instruction was as follows:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with him with the common purpose of committing that offense, or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on March 20, 1990, in the City of St. Louis, State of Missouri, the defendant or ...