State v. Bell
| Decision Date | 11 July 1995 |
| Docket Number | Nos. 65226,66657,s. 65226 |
| Citation | 906 S.W.2d 737 |
| Parties | STATE of Missouri, Respondent, v. Kenneth BELL, Appellant. Kenneth BELL, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Susan K. Eckles, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Kenneth Bell, appeals from the trial court's judgments of conviction, after a jury trial, for murder in the first degree and armed criminal action. He was sentenced to a term of imprisonment for life without eligibility for probation or parole for the murder conviction and a consecutive term of life for the armed criminal action conviction. Defendant also appeals from the denial of his Rule 29.15 motion without an evidentiary hearing. We affirm the trial court's judgments of conviction and the denial of defendant's Rule 29.15 motion.
Defendant does not challenge the sufficiency of the evidence. On March 20, 1990, defendant shot and killed a ten-year-old child in a gang related shooting. At trial he testified he was the shooter. Defendant's theory of the case was that he never deliberated. He claimed he was helping out a friend, Darerus Williams, who had been threatened by the victim's brothers. That night Williams accompanied the defendant to the victim's apartment. Defendant claimed it was not his fight and his intent was only to scare, not to kill anyone. 1
Defendant first claims the trial court erred in submitting the verdict directing instruction for murder in the first degree. 2 He argues the verdict director lowered the state's burden of proof by not requiring a finding that he deliberated.
The instruction reads as follows:
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 first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or furthering the death of Ricky Allen, the defendant aided or encouraged Darerus Williams in causing the death of Ricky Allen and reflected upon this matter coolly and fully,
then you will find the defendant guilty under Count I of murder in the first degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the first degree.
If you do find the defendant guilty under Count I of murder in the first degree, you are to assess and declare punishment at imprisonment for life without eligibility for probation or parole.
Defendant concedes the instruction complies with the applicable pattern instructions and their notes on use. See MAI-CR3d 304.04 (effective 1-1-87); MAI-CR3d 313.02 (effective 1-1-87). The Court of Appeals lacks the authority to declare an instruction which complies with pattern instructions approved by the Missouri Supreme Court erroneous. State v. Douthit, 846 S.W.2d 761, 763 (Mo.App.E.D.1993). In any case, Instruction No. 6 did not relieve the state of its burden concerning proof of deliberation.
"[A] first degree murder instruction premised on accessory liability must ascribe deliberation to the defendant." State v. Ervin, 835 S.W.2d 905, 923 (Mo. banc 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). In defendant's first appeal his first degree murder conviction was reversed and remanded because the verdict director contained a disjunctive which made it possible for the jury to find the defendant guilty without finding "cool deliberation." State v. Bell, 854 S.W.2d 612 (Mo.App.E.D.1993). On retrial, the trial court corrected the flaw by submitting an instruction which ascribes the element of deliberation to the defendant.
The first three paragraphs of the new instruction set forth the elements of first degree murder. The instruction by its terms requires the jury to find the defendant guilty only if each and all of the propositions from the entire instruction are found and believed beyond a reasonable doubt. The fourth paragraph attributes each of the elements for accessory liability, including deliberation, specifically to the defendant. The submission of Instruction No. 6 was not error. Point one is denied.
Defendant's second point claims error in the trial court's submission of Instruction No. 13 concerning voluntary intoxication by a defendant. He argues this instruction also lowers the state's burden of proof by excusing the state from proving the element of intent. Defendant claims the instruction failed to remedy a constitutional flaw found in an earlier approved pattern instruction on voluntary intoxication. 3 State v. Erwin, 848 S.W.2d 476, 483 (Mo. banc 1993), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993). The Missouri Supreme Court found the older version implicitly relieved the state of its burden of proof of intent. Id.
Instruction No. 13, like No. 6, complies with the applicable pattern instruction and its...
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