State v. Boyd, 65514

• Decision Date: 21 November 1995
• Docket Number: No. 65514,65514
• Citation: 913 S.W.2d 838
• Parties: STATE of Missouri, Respondent, v. Joe BOYD, Appellant.
• Court: Missouri Court of Appeals

Page 838

913 S.W.2d 838

STATE of Missouri, Respondent, v. Joe BOYD, Appellant.

No. 65514.

Missouri Court of Appeals,

Eastern District,

Division Five.

Nov. 21, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 17, 1996.

Application to Transfer Denied

Feb. 20, 1996.

Mary Bruntrager Schroeder, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Assistant Attorney General, Jefferson City, for respondent.

OPINION

SIMON, Judge.

Appellant, Joe Boyd, appeals from his sentences following a jury verdict of murder in the second degree, § 565.021, RSMo.1994 (all references shall be to RSMo.1994 unless otherwise indicated), assault in the first degree, § 565.050, and two counts of armed criminal action, § 571.015, in the Circuit Court of the City of St. Louis.

Appellant was sentenced to 45 years in prison; 30 years for murder in the second degree; 30 years total for the armed criminal action counts, to be served concurrently to the murder sentence; and 15 years for assault in the first degree to run consecutively with the other sentences.

On appeal, appellant contends that the trial court erred in: (1) refusing to instruct the jury on voluntary and involuntary manslaughter because there was sufficient evidence of provocation, sudden passion, and recklessness; (2) refusing to instruct the jury on assault in the second degree because there was sufficient evidence of sudden passion and insufficient evidence of a "serious physical injury;" and (3) not granting his motion to dismiss counsel because of a conflict of interest with appellant.

Appellant does not challenge the sufficiency of the evidence. A brief summary of the facts follows. George Lathan and appellant were neighbors. On the night of June 28, 1993, Lathan invited some friends over for a barbecue. Later in the evening, Willie Taylor's son, Jason, went over to appellant's fence and began "banging" on the fence railing with a stick. Appellant came out of his house and brought Jason over to the area where Lathan and his friends were socializing. After appellant discovered who was Jason's father, an argument ensued between appellant and Taylor. Although it is unclear as to the extent of the physical confrontation that ensued, it is clear that appellant and Taylor began "shoving" each other. Finally, appellant left Lathan's yard and went back into his home. Taylor left the party and went to his car, which was parked in front of Lathan's home. Taylor testified that he was attempting to leave the party in order to give appellant time to "cool off." Taylor was seated in the car when appellant walked up with a gun and fired two shots at Taylor at close range. Taylor, who survived, was shot in the abdomen, but the bullet passed through his body. Taylor's son witnessed the shooting.

Lathan, who witnessed the shooting from his front porch, ran down to appellant and attempted to grab the gun. Lathan grabbed at appellant's hands and side in order to take the gun away and prevent appellant from firing at Taylor again. Appellant, turned and shot Lathan in the neck. Next, appellant ran down the street with the gun in his hand, entered his car and left the scene. Lathan died.

The jury found appellant guilty on all counts. Subsequently, appellant filed a motion for post-conviction relief, pursuant to Rule 29.15. Although the trial court conducted an evidentiary hearing and issued findings of fact and conclusions of law, it ultimately denied the motion as untimely. Appellant did not appeal the denial of his Rule 29.15 motion, therefore, it is abandoned.

In his first point, appellant contends that the trial court erred in refusing to instruct the jury on voluntary and involuntary manslaughter because there was sufficient evidence of provocation, sudden passion, and recklessness to support the submission of the lesser included offenses. The issue is whether the evidence failed to support an essential element of murder in the second degree and whether there was evidence that supported submission of voluntary or involuntary manslaughter. State v. Mease, 842 S.W.2d 98, 110-112 (Mo. banc 1993).

Appellant first argues that the trial court should have submitted his proffered instruction on voluntary manslaughter because there was sufficient evidence that he shot Lathan under the influence of sudden passion arising out of adequate cause.

Section 565.023 provides in pertinent part:

1. A person commits the crime of voluntary manslaughter if he:

(1) Causes the death of another person under the circumstances that would constitute murder in the second degree under subdivision (1) of section 565.021, except that he caused the death under the influence of sudden passion arising from adequate cause ...

Specifically, appellant proffered Instruction No. B:

As to Count I, if you do not find the defendant guilty of murder in the second degree, you must consider whether he is guilty of voluntary manslaughter.

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

First, that on June 28, 1992, in the City of St. Louis, State of Missouri, the defendant caused the death of George Lathan by shooting him, and

Second, that defendant knew or was aware that his conduct was practically certain to cause the death of George Lathan, then you will find the defendant guilty under Count I of voluntary manslaughter.

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 voluntary manslaughter.

If you do find the defendant guilty under Count I of voluntary manslaughter, you will assess and declare the punishment at imprisonment for a term of years fixed by you, but not less than five years and not to exceed fifteen years.

Instruction No. 6, offered by the state and submitted to the jury is MAI-CR3d 313.04, murder-second degree conventional.

Acting under the influence of sudden passion arising from adequate cause, § 565.023.1(1), is a special negative defense to the crime of conventional second degree murder. State v. Blackman, 875 S.W.2d 122, 131[1-3] (Mo.App.E.D.1994). Appellant has the burden of injecting this issue. Id. If there is evidence that appellant shot Lathan under the influence of sudden passion arising from adequate cause, an instruction submitting conventional murder in the second degree must submit, as an element of the crime, a third paragraph that defendant did not do so under the influence of sudden passion arising from adequate cause. Id. Further, the trial court must also give MAI-CR3d 313.08 on voluntary manslaughter. Id.; Notes on Use, MAI-CR3d 313.04, note 4.

"Sudden passion" means "passion directly caused by and arising out of provocation by the victim which arises at the time of the offense and is not solely the result of former provocation." Id.; § 565.002(7). "Adequate cause" means "cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self control." Id.; § 565.002(1). In State v. Simmons, 751 S.W.2d 85, 91 (Mo.App.1988), we stated that for "adequate cause" to exist:

... there must be a sudden, unexpected encounter or provocation tending to excite the passion beyond control. Passion may be rage or anger, or terror, but it must be so extreme that for the moment, the action is being directed by passion, not reason. R. Perkins, Criminal Law, 66 (1969).

As we further stated in Simmons, the offense must have been done in a sudden passion and not after there has been time for the passion to cool. Id.

In Blackman, the defendant who requested that the jury be instructed on sudden passion, claimed that the police officer shined a flashlight in his face, pushed his hand away when he tried to shield his eyes, called him a racial epithet, and fired a shot past his ear. Blackman, 875 S.W.2d at 131. The defendant stated that: "Next thing I know, I getting mad cause she just tried to shoot me." Id. We found that although defendant got mad, he did not describe "extreme rage, anger, or terror directing his actions beyond his control." Therefore the evidence was insufficient to establish sudden passion. Id.

Here, we are unable to discern, nor does appellant direct us to any evidence in the record to support the contention that appellant was acting out of sudden passion when he shot Lathan. Nowhere do we find any evidence appellant was experiencing "rage, anger, or terror directing his actions beyond his control." Id.

On appeal, appellant argues that Lathan grabbed him from behind and this was adequate cause for sudden passion. The record does not support this argument. In any event, that evidence would not constitute sufficient evidence of adequate cause. Further, there is no showing of "sudden passion." The trial court did not err in refusing to instruct the jury on voluntary manslaughter.

After first arguing at trial that he did not shoot Lathan, and then on appeal arguing that he was entitled to a voluntary manslaughter instruction based on sudden passion, appellant next contends that the trial court failed to submit an involuntary manslaughter instruction because he was reckless in shooting Lathan.

Section 565.024.1(1) provides that a person commits the offense of involuntary manslaughter if he "recklessly causes the death of another person." The term "recklessly" is defined in MAI-CR3d 313.10:

In determining whether the defendant recklessly caused the death of [name of victim], you are instructed that a person acts recklessly as to causing the death of another person when there is a substantial and unjustifiable risk he will cause death and he consciously disregards that risk, and such disregard is a gross deviation from what a reasonable person would do in the circumstances.

In State v. Baldwin, 808 S.W.2d 384, 393 (Mo.App.S.D.1991), the defendant testified that she got a loaded gun and...