State v. Clark

• Citation: 272 S.W.3d 432
• Decision Date: 19 November 2008
• Docket Number: No. SD 28072.,SD 28072.
• Parties: STATE of Missouri, Respondent, v. Andre CLARK, Appellant.
• Court: Missouri Court of Appeals

272 S.W.3d 432

STATE of Missouri, Respondent, v. Andre CLARK, Appellant.

No. SD 28072.

Missouri Court of Appeals, Southern District, Division One.

November 19, 2008.

Motion for Rehearing or Transfer Denied December 11, 2008.

Application for Transfer Denied January 27, 2009.

Nancy A. McKerrow, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen. and Joshua N. Corman, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Andre Clark ("Appellant") appeals his convictions following a bench trial for two counts of the Class A felony of murder in the second degree, violations of section 565.021, and one count of the Class A felony of assault in the first degree, a violation of section 565.050.¹ Appellant was sentenced to three consecutive life sentences for the aforementioned crimes. In his sole point relied on, Appellant challenges the trial court's denial of his motion for judgment of acquittal because there was insufficient evidence adduced at trial to support his convictions. We affirm the judgment of the trial court.

Viewing the evidence in the light most favorable to the trial court's verdict, State v. Jackson, 248 S.W.3d 117, 120 (Mo.App. 2008), the record reveals that at approximately 3:40 p.m. on June 17, 2004, Appellant placed three 911 phone calls to the Charleston Department of Public Safety in which he requested police assistance at a home on Grand Street in Charleston, Missouri.²

Lieutenant Michael Tarver ("Lieutenant Tarver") and Officer Brandon Caid ("Officer Caid") were the first officers to arrive on the scene. Appellant approached Lieutenant Tarver and told him he had arrived home to find his fiancé, Lazan Balentine ("Ms. Balentine"), lying in a pool of blood. Lieutenant Tarver entered the home and discovered Ms. Balentine lying on the floor in the kitchen with severe injuries to her head and body.³ Lieutenant Tarver testified Ms. Balentine was clearly deceased and there was blood on a couch near her body as well as blood splatter all over the walls, back door and ceiling. He stated there were also two broken broom handles lying near the body.

When Lieutenant Tarver spoke with Appellant, Appellant told him that when he last saw Ms. Balentine in the late evening of June 16, 2004, "she had told him that she thought she had ... seen somebody from Las Vegas from her past, and that her past had caught up with her." He stated that after speaking with Ms. Balentine that night he left home and spent the night at someone else's house.

Appellant thereafter told the officers that he had gone home earlier that morning of June 17, 2004, between 6:00 a.m. and 6:30 a.m. to adjust the thermostat, which was in the hallway across from the kitchen.⁴ He stated he did not see Ms. Balentine's body at that time because he had just "reached around the corner to shut the thermostat ..." off and had not actually gone into the kitchen.⁵ He also related he came back to the home later in the morning, between 9:00 a.m. and 10:00 a.m. to move a freezer to a shed.

Officer Caid eventually asked Appellant if there was anyone else in the home. Appellant replied that he did not know where Ms. Balentine's two sons were. Both officers then began a search for the children. In a back bedroom, "between the north wall of the bedroom and the bed," they located a four-year-old boy, Knighten, who was severely injured.⁶ In the same room, they found a deceased four-year-old boy, Kyri, under the blankets of another bed.⁷

After speaking with several officers on the scene, Appellant agreed to accompany Sergeant Stoelting and Sergeant Heath⁸ of the Missouri Highway Patrol to the Charleston police department for further questioning. There, Appellant repeated his assertion that Ms. Balentine had recently been in trouble in Las Vegas and that a hit man from Las Vegas had probably killed her.⁹

Appellant also informed the officers that Kyri and Knighten had been with him the previous evening of June 16, 2004, from approximately 6:00 p.m. until 10:00 p.m. He stated they spent most of the evening at his friend Gloster McCline's ("Mack") house and then he took the boys home.¹⁰ He stated when he dropped the boys off at home and started to leave again Ms. Balentine got angry that he was going back out. He told her not to worry about where he was going and he returned to Mack's house to smoke crack for the rest of the night. He told the officers that he did not return home that evening.¹¹

In connection with his stay at Mack's house, Appellant also related he slept on Mack's couch until 9:00 a.m. on the morning of June 17, 2004, when he left Mack's home. Then at 10:00 a.m. that morning he stated he went by his home to turn the thermostat down, which was about four hours later than the time he originally told police he returned to the home. He related he did not go into the kitchen at that time and did not see anyone at the home. He then went to Perryville¹² and Sikeston with his friend, Tim Easton ("Mr. Easton"). He informed the officers that he got back from Sikeston at exactly 12:44 p.m.

Appellant also reported to the authorities that he then met up with Oscar Davis ("Mr. Davis") and they went to Wal-Mart to get fried chicken after which, at about 2:00 p.m., he waited at McClain's grocery store for a woman who wanted to purchase a freezer located at his home. He stated they went to his home to look at the freezer, but he said he did not go inside the residence at that time. Appellant then returned to Mack's house after meeting with the woman. Appellant also related that at some point between the late evening of June 16, 2004, and the early afternoon of June 17, 2004, he changed his shorts and socks, but he was wearing the same shirt from the night before.¹³

Lastly, Appellant informed the authorities that he had remained at Mack's house until around 3:45 p.m. on June 17, 2004, when he then returned home and discovered Ms. Balentine's body in the kitchen.

The record also shows that after interviewing Appellant, Sergeant Stoelting was informed that Appellant had reportedly sold Ms. Balentine's EBT card to a woman on June 17, 2004.¹⁴ Sergeant Stoelting then inquired of Appellant concerning the card and it was then that Appellant admitted he sold the card for $130.00 so that he could purchase crack cocaine.

Thereafter, Appellant was informed of his Miranda¹⁵ rights. He confirmed he understood those rights, signed the waiver of rights form and continued to speak with the officers.

At trial Sergeant Stoelting testified that he had asked Appellant if he had killed Ms. Balentine and Kyri. Appellant stated he had not. Sergeant Stoelting then testified that Sergeant Heath had asked Appellant if this was "the first time [he had] ever done something like that, and [Appellant] said yes." The officers then informed Appellant that "one of these days you're going to have to tell your side of the story of what happened" and Appellant responded that "he knew that he would have to tell his side of the story, but he wasn't ready to tell it right now." The officers then ended the interview and returned Appellant to jail.

Also, at trial Mr. Davis testified that he was with Appellant and the children during the evening of June 16, 2004. He stated he took Appellant to McClain's grocery store that evening because Appellant wanted to sell Ms. Balentine's EBT card. He related that a woman purchased the card from Appellant and Appellant used the money to pay him for gas and to buy a carton of cigarettes. Mr. Davis stated he then took Appellant to purchase crack cocaine and then transported Appellant and the two boys to Mack's house at around 8:30 p.m.

Mr. Davis further related that later that evening of June 16, 2004, Appellant approached him in a parking lot and asked him if he knew anyone who would buy a television. Mr. Davis then drove Appellant to Appellant's home and Appellant went inside to retrieve a television. When Appellant emerged with the television, Mr. Davis asked him what Ms. Balentine "would ... think about him getting that T.V. out of [the house]" late at night and Appellant responded that "he didn't have to worry about her anymore." Mr. Davis testified Appellant later traded the television for crack cocaine and then he took Appellant back to Mack's house.

The following day, June 17, 2004, Mr. Davis and Appellant went to McClain's grocery store to retrieve Ms. Balentine's EBT card from Ms. Cooper at between 12:30 p.m. and 1:00 p.m. Then at around 1:30 p.m. they met a woman at Appellant's home who wanted to look at a freezer. Thereafter, Mr. Davis took Appellant to sell some children's DVDs, which he was able to sell for $8.00. Mr. Davis then testified they went back to Appellant's home to wait for a man who was going to "pick up" a car from Appellant and, when the man departed with the car, Mr. Davis and Appellant went to a house to look at a freezer. Mr. Davis returned Appellant to his home between 3:00 p.m. and 3:30 p.m.

Eric Cassell ("Mr. Cassell") testified that he lives near Mack's house. He testified that during the evening of June 16, 2004, he was sitting on his porch when Appellant approached him between 10:00 p.m. and 11:00 p.m. Mr. Cassell testified that Appellant had a stack of children's videotapes and DVDs he wanted to sell and Mr. Cassell advised him he could probably sell the DVDs at a parking lot down the street.

Robert Gipson ("Mr. Gipson") testified that on that same evening he was at Mr. Cassell's house when Appellant came over and spoke with them. He stated he did not know Appellant well, but he knew Appellant was often selling appliances out of his house. He stated that when Appellant approached them he was carrying a "small stick" in his hand which was similar in size to an ax handle or maybe smaller.

Terry Parker, the county coroner, testified that he estimated Ms. Balentine and Kyri were murdered at approximately 10:00 a.m. on June 17, 2004.

Appellant did not testify at trial. He...