State v. Carter
| Decision Date | 17 July 1979 |
| Docket Number | No. 10841,10841 |
| Citation | 585 S.W.2d 215 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Michael Ray CARTER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Aschroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
David Robards, Joplin, for defendant-appellant.
On October 4, 1977, defendant Michael Ray Carter was convicted of the crime of murder in the second degree (§ 559.020 1) and thereafter was sentenced to life imprisonment in accordance with the jury verdict. Defendant appeals the judgment and sentence of the trial court.
The amended information filed in the case alleged that defendant willfully, premeditatedly, and with malice aforethought killed Billy Joe Kralicek by beating him to death with a metal mop wringer. Defendant entered pleas of not guilty and not guilty by reason of mental disease or defect to the charge. At time of trial, defense counsel, in his opening statement, said that his defense was two-pronged, with the first defense being insufficient evidence by the state to show an intentional killing, and the second being that defendant, at the time of the killing, was suffering from a mental disease or defect excluding responsibility.
The state's evidence established by at least four witnesses that defendant, on May 25, 1976, struck Kralicek in the head a number of times with a heavy metal mop wringer while the two were cellmates in the Jasper County jail. The force and frequency of the blows were such that the head of Kralicek was battered beyond recognition. In fact, it was necessary to use jail records, including a description of tatoos on the victim's body, to identify him. The state's evidence made a submissible case of second degree murder. Once a prima facie case of conventional second degree murder is made out, it is the jury's function to determine whether the killing was intentional, State v. Bolden, 494 S.W.2d 61, 65 (Mo.1973), and committed without provocation, State v. Stapleton, 518 S.W.2d 292, 299-300 (Mo. banc 1975).
Defendant's evidence sought to bolster his defenses of not guilty by reason of mental disease or defect excluding responsibility, and lack of criminal intent to commit second degree murder. Several witnesses testified to bizarre behavior of defendant prior to the killing. The witnesses stated that defendant told them he was under the direct control of a communist brain wave transmitter, that defendant quoted from the book of Revelation, and that he thought There was no testimony in defendant's case relative to self-defense, or provocation, except for an exchange, on cross-examination, between the prosecuting attorney and defense witness Dr. Robert Turfboer. Turfboer was a psychiatrist who had examined defendant for the purpose of giving an opinion concerning his mental condition. Dr. Turfboer testified that, in his opinion, defendant was suffering from a mental disease or defect, known as toxic psychosis, on the night of May 25, 1976, when he killed Billy Joe Kralicek. He further testified that such mental disease or defect prevented defendant from appreciating the nature or quality of his conduct and made him unable to conform such conduct to the requirements of the law. He also testified that such mental disease or defect prevented defendant from intending to kill Kralicek.
he was the new Christ. During his attack on Kralicek, defendant made statements like "going around the merry-go-around", which did not make any sense to the witnesses, and about having to kill the devil.
On cross-examination, the following exchange occurred between the prosecuting attorney and Dr. Turfboer.
"CROSS EXAMINATION BY MR. ELLISTON: Q. Doctor, prior to you making all these diagnoses and statements here in court, you had benefit of Fulton Hospital records which are Defendant's Exhibits 'A', did you not, in fact, that's your copy?
A. This is the first one, yes.
Q. Were you aware that Mike originally in his statement said that this guy was coming at him with a knife so he had to kill him with the mop wringer in self defense?
A. Yes, he has said so."
At the close of all the evidence, the trial judge gave instructions in writing to the jury. The instructions that are pertinent to this appeal are Instruction No. 4 (), No. 5 (), and No. 6 ().
Instruction No. 4, as given, read as follows: "If you find and believe from the evidence beyond a reasonable doubt:
then you will find the defendant guilty of murder in the second degree, unless you find and believe from the greater weight of the evidence that the defendant is not guilty by reason of mental disease or defect excluding responsibility as submitted in Instruction No. 8.
If you do find the defendant guilty of murder in the second degree you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than ten years nor more than life imprisonment."
This instruction omitted the following paragraph, which is an integral part of MAI-CR 6.06.
Third, that the defendant did not do so in (anger) (fear) (agitation) suddenly provoked by the unexpected acts or conduct of (name of victim).
The court also refused Instruction No. A, offered by defendant, which reads as follows:
"If the evidence of defendant's mental disease or defect in this case leaves in your mind a reasonable doubt that Michael Ray Carter intended to kill Billy Joe Kralicek, you will find the defendant not guilty of murder in the second degree."
No instruction was given on justifiable homicide, and none was requested. The transcript does not indicate whether defendant objected, at time of trial, to the instructions given by the court.
After the verdict, defendant timely filed a motion for new trial, which was overruled. Defendant then appealed, raising
three points, which are 1) that the trial court committed reversible plain error in failing to instruct the jury that to convict defendant of murder in the second degree, they must find that he was not suddenly provoked by the victim's unexpected acts or conduct; 2) that the trial court committed reversible plain error in failing to instruct the jury on justifiable homicide when there was evidence in the record that defendant had acted in self-defense; and, 3) that the trial court erred in refusing to instruct the jury that evidence of defendant's mental disease or defect could be considered in determining whether the defendant intended to kill the victim.
Defendant, in his first assignment of error, contends that the trial court committed prejudicial error by omitting from Instruction No. 4 MAI-CR 6.06) a necessary element on which the state had the burden of proof, namely "Third, that the defendant did not do so in (anger) (fear) (agitation) suddenly provoked by the unexpected acts or conduct of (name of victim)". Defendant did not raise this issue in his motion for new trial and does not state in the points relied on wherein and why the instruction is prejudicially erroneous, as is required by rule 84.04(d). He has not preserved the assignment for review. State v. Miceli, 549 S.W.2d 113, 117 (Mo.App.1977); State v. Grebe, 512 S.W.2d 409, 410 (Mo.App.1974). We are requested to review the point as plain error, rule 27.20(c), and we elect to do so, as the omission of the paragraph in question from Instruction No. 4 was error, the prejudicial effect of which must be judicially determined. Rule 20.02(e); State v. Sykes, 559 S.W.2d 643, 646 (Mo.App.1977). Plain error review is not justified in matters involving jury instructions unless the trial court so misdirected or failed to instruct the jury on the law of the case that the misdirection or failure to instruct caused manifest injustice. State v. Merritt, 540 S.W.2d 183, 185 (Mo.App.1976). Manifest injustice is to be determined on a case-by-case basis. State v. Sanders, 541 S.W.2d 530, 533 (Mo. banc 1976).
The precise issue of the omission of the paragraph in question was presented in ...
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