State v. O'Brien

Decision Date29 June 1993
Docket NumberNo. 75561,75561
Citation857 S.W.2d 212
PartiesSTATE of Missouri, Respondent, v. Wayne O'BRIEN, Appellant.
CourtMissouri Supreme Court

John A. Klosterman, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Aundreia R. Alexander, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Chief Justice.

Appellant appeals his convictions for first degree murder, Section 565.020, RSMo 1986, and first degree burglary, Section 569.020, RSMo 1986. The trial court sentenced Wayne O'Brien (O'Brien) to life imprisonment without the possibility of probation or parole for first degree murder and life imprisonment for first degree burglary. Following sentencing, O'Brien filed a Rule 29.15 motion, counsel was appointed and filed a timely amended motion. The motion court denied relief without an evidentiary hearing. The court of appeals consolidated O'Brien's post-conviction appeal with his direct appeal, Rule 29.15(l), and affirmed. On O'Brien's motion, the court of appeals transferred these consolidated appeals to this Court, Mo. Const. Art. V, § 10, and, deciding the case as though on original appeal, we affirm in part and reverse in part and remand.


O'Brien's principal contention on appeal is that the trial court erred in denying his motion for a judgment of acquittal at the close of the evidence. He claims the State failed to present sufficient evidence to support a conviction for first degree murder. As we are persuaded that he is correct, we address only those other points on appeal that may arise on remand. 1


A challenge to the sufficiency of the evidence to support a finding of guilt is based in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307, 314-15, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979). No person may be deprived of liberty, "except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt." Id. The constitutional sufficiency of the evidence is a question of law to be determined, in the first instance, by the trial court on proper motion by the defendant and again on appeal.

When properly raised by the defendant, the question of sufficiency arises before the case is put to the jury; the challenge is to the "submissibility" of the case. Therefore, any guilty verdict subsequently rendered by the jury is wholly irrelevant to the question of whether the case was sufficient to go to the jury at all. The Court's review is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to each of the elements of the crime, beyond a reasonable doubt. To ensure that the reviewing court does not engage in futile attempts to weigh the evidence or judge the witnesses' credibility, courts employ "a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Thus, evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may reasonably be drawn from the evidence are indulged. Conversely, the evidence and any inferences to be drawn therefrom that do not support a finding of guilt are ignored. Viewed in this light, the evidence in this case is set out below.


Defendant Wayne O'Brien, age 21, lived with his mother, his brother, Michael, and Daniel Blount. On November 25, 1989, at or around 5:30 p.m., O'Brien and Blount were drinking beer at Sam's Place, a neighborhood tavern. Also in the bar was Sanford Wood, a frequent patron of Sam's Place. As with any group of "regulars," everyone in the bar knew everyone else. On this day, Wood was celebrating because he had just come into some money. He bought several rounds of drinks "for the house" and, in doing so, exhibited a large amount of cash.

Drawn by this display, Blount sought O'Brien's help in robbing Wood. According to O'Brien, Blount told him that, if he would just "lure" Wood outside, Blount would "take care of the rest." O'Brien agreed and asked Wood to step outside with him. When they left, Blount exited through the tavern's side door and made his way behind the building and into a narrow walkway, or "gangway," which led out to the street.

After a brief conversation outside, O'Brien turned to walk away and Wood turned to come back into the bar. A witness inside the bar then saw Wood turn and walk in the direction of the gangway as though he had heard someone call his name. O'Brien told the police that he then saw Blount pull Wood into the gangway, knock him down and reach into Wood's pockets.

Several minutes later, O'Brien returned to Sam's Place and asked if anyone had seen Wood. Sam, the owner, said he had not seen Wood but asked O'Brien to check in Tucker's, another tavern on the same block, because Sam wanted to close and Wood's coat and change were still on the bar. O'Brien left for a couple of minutes, returned to report that he could not find Wood and then left for home.

Sam asked another patron to check again to see if Wood was at Tucker's. The patron did so and, on the way to Tucker's, thought he saw "something" in the gangway but did not stop to see what it was. Returning from Tucker's, however, this patron heard a "gurgling" sound coming from the gangway and stepped in to investigate. There, he found Wood, barely alive. The medical examiner's testimony revealed that Wood's skull had numerous fractures as a result of what were described as "blunt force injuries." Though the medical examiner testified that the injuries were greater than could have been caused by fists alone, the injuries were consistent with having been inflicted by stomping on the victim's head as it lay on the concrete of the gangway.

Meanwhile, O'Brien returned to his house for a short time and then went to a friend's house nearby. Shortly after O'Brien's arrival, Blount showed up, very nervous and excited. After the door was shut and shades drawn, Blount announced that he had "murdered" someone and displayed some cash that he said he had taken. O'Brien's friend testified that Blount's shoes appeared to have blood on them. Blount offered O'Brien some of the money, but O'Brien refused and the two men left to return to their home.

The police, acting on information from the bar's patrons and using a tracking dog, went to O'Brien's house where they arrested him. O'Brien gave a statement to the police and was released. Several days later, upon learning that the police were looking for him again, O'Brien turned himself in at the police station. There, he again gave statements which, though not entirely consistent, contained the essential facts set out above.


On the strength of this evidence, the trial court instructed the jury on the following charges:

As to Count I--

a. Murder in the first degree

b. Murder in Second degree (felony murder) based on burglary in the first degree

c. Murder in Second degree (felony murder) based on attempted burglary in the first degree

d. Murder in Second degree (felony murder) based on burglary in the second degree

e. Murder in Second degree (felony murder) based on attempted burglary in the second degree

As to Count II--

a. Burglary in the first degree

b. Attempted burglary in the first degree

c. Burglary in the second degree

d. Attempted burglary in the second degree

The jury returned verdicts of guilty on murder in the first degree and burglary in the first degree.

There are three elements to the crime of murder in the first degree: "A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter." Section 565.020. In the present case, however, the State argued O'Brien's guilt on the basis that he was an accessory, or an accomplice, to the murder of Woods. On appeal, the State argues that it need only prove that O'Brien aided in Wood's death with the conscious purpose of causing that death. In support of its position, the State cites State v. Hunter, 782 S.W.2d 95 (Mo.App.1989). There, the court of appeals held that

liability as an accomplice for murder first degree requires that one "aid another or others with the conscious object of causing the offense." Proof of dual intent, that is, both an intent to commit murder after coolly and fully reflecting upon it and an intent purposely to promote the commission of murder is not required to establish accomplice liability for murder first degree. Proof of the latter intent is sufficient.

Id. at 100. [Citations omitted.] Hunter cites State v. Johns, 679 S.W.2d 253 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1988), and State v. White, 622 S.W.2d 939 (Mo. banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982), in support of this holding.

Johns, relying entirely on White, affirmed the use of instructions requiring only that the jury find the defendant "acted with the purpose of promoting the commission of first degree murder" and held the failure of the instructions to also require a finding that the defendant "reflected upon this matter coolly and fully" was not error. Johns, 679 S.W.2d at 259-60. In White, the Court held that "[i]f the Legislature had intended to require an aider to have a dual intent, it would have said so in the statutes." White, 622 S.W.2d at 944. The Court went on to conclude that an instruction that required only a finding that the defendant "with the purpose of promoting its commission aided [the other] in committing that offense [first degree murder]" was sufficient. Id. at 945-46. The key to White, and that which Johns and Hunter overlooked, is that the Court, in White, went on to state that the instruction was proper only insofar as it meant "acting with the conscious object of causing...

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