State v. Clark
| Decision Date | 16 January 1996 |
| Docket Number | Nos. WD,s. WD |
| Citation | 913 S.W.2d 399 |
| Parties | STATE of Missouri, Respondent, v. Joseph A. CLARK, Jr., Appellant. Joseph CLARK, Appellant, v. STATE of Missouri, Respondent. 49380, WD 50813. |
| Court | Missouri Court of Appeals |
Rebecca L. Kurz, Asst. Public Defender, Kansas City, for Appellant.
Philip M. Koppe, Asst. Attorney General, Kansas City, for Respondent.
Before FENNER, C.J., P.J., and SPINDEN and SMITH, JJ.
Joseph A. Clark appeals from his convictions after trial by jury and resulting consecutive sentences of life imprisonment without probation or parole, 50 years, and seven years imprisonment, as a prior offender, for murder in the first degree, armed criminal action and burglary in the second degree, respectively.
Viewed in the light most favorable to the verdict, the evidence at trial reveals that on May 5, 1993, Dr. Shawn Storm and his wife returned to their home at 2525 Holmes in Kansas City, Missouri, at approximately 10:30 p.m., after visiting his sister. Mrs. Storm parked their Jeep in the street while Dr. Storm went to move their other car from the driveway. Mrs. Storm heard four shots and saw Dr. Storm walking down the driveway holding his abdomen.
Mrs. Storm rushed her husband to the emergency room at Truman Medical Center, where he died the following morning. An autopsy revealed that the cause of death was a single gunshot wound fired from an undetermined range that punctured Dr. Storm's aorta, causing him to bleed to death.
A police investigation revealed that a burglar had entered the Storm residence by forcing open a window at the back of the house on the east side. Inside the home, a refrigerator had been pushed aside, there was a videocassette recorder sitting on the counter, and an overturned television on the floor. Further investigation revealed a gray, plastic trash bag containing various toiletry items and some miscellaneous papers on top of a bed in the upstairs portion of the home.
Latent fingerprints taken from the gray bag were analyzed and found to match the known fingerprints of appellant. A possible shoe print was also developed from the miscellaneous papers on the Storms' bed, and it was found to have the same general class characteristics (size, design, and degree of wear) as that admittedly worn by appellant on the night in question.
Appellant was arrested based on the matching fingerprints and interrogated by police on May 13, 1995. In a videotaped statement played at trial, appellant admitted that on May 5, 1993, he had "checked out" the neighborhood and determined that no one was home at the Storm residence. He went to his mother's house at 2533 Holmes, just down the street from the Storms' house, obtained a crowbar, and returned to the Storm home. He climbed over the back yard fence and used a chair to climb through the back window of the house. He pushed the refrigerator out of his way and began taking items from various areas of the house. While going upstairs, he heard a noise, saw car lights, looked out a window, and saw the Storms' Jeep pulling up in front of the house.
At this point, appellant claims to have climbed out of the kitchen window only to be startled by Dr. Storm. Appellant claims he heard Dr. Storm call him an "asshole" just as he reached the chair as he climbed out the window. Appellant finished climbing out of the window as Dr. Storm approached. Appellant walked in front of Dr. Storm and stated that he saw him "moving around" and thought that Dr. Storm might have a gun, so he drew his gun and fired once at Dr. Storm. Appellant then began running and fired two additional shots as he ran away. Appellant climbed the wooden, back fence and ran to his girlfriend's house at 4028 Montgall.
Upon further questioning, appellant told police he gave the gun used in the shooting to a friend. The gun was later recovered and a ballistics test revealed that the bullet recovered during the autopsy of Dr. Storm had been fired from the H & R Revolver used by appellant.
Prior to the trial of the case, appellant filed a motion to disqualify the Jackson County, Missouri, Office of the Prosecuting Attorney from the case and appoint a Special Prosecuting Attorney because appellant had been represented on a prior criminal matter by Kathy Finnell, an Assistant Prosecuting Attorney at the time of the incident in question. The matter on which Ms. Finnell served as appellant's counsel had concluded at the time of the shooting of Dr. Storm and was used to support the prior offender charge against appellant. Ms. Finnell did not have any role in prosecuting the case at bar. The trial court overruled the motion to disqualify, finding that the prior case was totally unrelated to the pending case.
At trial, after the State rested its case, the defense rested without presenting any evidence, moving for judgment of acquittal at the close of the State's case and at the close of all evidence. Both motions were denied. Instructions were submitted as to the charged offense of murder in the first degree and the lesser included offense of murder in the second degree, conventional and felony murder.
During appellant's closing argument, counsel made reference to the "testimony" of appellant on the videotape, instructing the jury that they could "see his demeanor" and "judge for [themselves]" when appellant stated he "wasn't trying to kill the dude, just scared" and that he "didn't know what [Dr. Storm] was going to do to [him], so [he] shot [Dr. Storm]." In response, the State made the following argument:
You've had the chance to look at each of the State's witnesses as they take the stand, and you judge their credibility and you determine from eyeballing them right here in the courtroom whether or not you believe them. But all you've got in terms of believing this man is his statement to the police on a videotape, and I want to tell you right now, you don't have to believe everything that you hear on that tape.
No objection to this argument was made by appellant's counsel. Arguments were completed and after jury deliberation, appellant was convicted on the aforementioned charges.
On September 24, 1994, appellant filed a pro se motion under Rule 29.15 to vacate his convictions and sentences. An amended motion was filed on appellant's behalf by appellate counsel on December 6, 1994. The amended motion alleged that appellant's trial attorneys had been ineffective in several respects, including their failure to object when the prosecution made the above comments, alleging they constituted improper remarks regarding appellant's right not to testify at trial.
On February 7, 1995, the motion court issued findings of fact and conclusions of law denying postconviction relief without an evidentiary hearing. This appeal follows.
Appellant contends that the trial court abused its discretion in denying his pretrial motion to disqualify the entire staff of the Jackson County Prosecutor's Office and appoint a special prosecutor. Appellant argues that the participation of the Jackson County Prosecutor's Office created a conflict of interest and the appearance of impropriety due to the fact that an attorney who represented appellant as a public defender in a prior criminal matter subsequently became an Assistant Prosecuting Attorney in Jackson County and was on the staff at the time of the trial of this case.
Appellant asserts that the prior case was not "unrelated" to the instant case because the State utilized the prior conviction to establish appellant's status as a prior offender. This argument, however, has been rejected by the courts of this state in State v. O'Neill, 825 S.W.2d 376, 377 (Mo.App.1992), and State v. Puckett, 691 S.W.2d 491, 494 (Mo.App.1985). The Puckett court stated that use of the prior conviction in which the prosecutor was involved as counsel for defendant to establish prior offender status did not require disqualification of the prosecutor, because use of the conviction from the prior proceeding, a matter of public record, in such manner was clearly not inconsistent with the prosecutor's duty to his office. 691 S.W.2d at 494. We see no reason to challenge the sound reasoning of the Puckett court in this case.
This case does differ from O'Neill and Puckett in that the representation in those cases occurred several years before the crimes in question. While the prior representation in the case at bar concluded only months before the shooting of Dr. Storm, there is no evidence that the crimes were interrelated in any way. Further, there is no indication that appellant's former attorney took part in the prosecution against him for the charges in question or that the former attorney possessed any confidential information related to the incident involving Dr. Storm. The trial court did not abuse its discretion in denying appellant's pretrial motion to disqualify the Jackson County Prosecutor's Office. Point denied.
In order to prove murder in the first degree under section 565.020, RSMo 1986, the State must prove that appellant knowingly caused the death of Dr. Storm after deliberation upon the matter. State v. Watson, 839 S.W.2d 611, 616 (Mo.App.1992). Deliberation is defined as "cool reflection for any length of time no matter how brief." § 565.002(3), RSMo 1986. A deliberate act is a free act of the will done in furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful purpose and while not under the influence of violent passion suddenly aroused by some provocation. State v. Baker, 859 S.W.2d 805, 815 (Mo.App.1993).
Direct evidence of deliberation is not necessary to support a conviction for murder in the first degree, as deliberation may be proved by indirect evidence and inferences reasonably drawn from the circumstances surrounding the slaying. State v. Goforth, 881 S.W.2d 256, 264 (Mo.App.1994); State v. Reed, 816 S.W.2d...
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