State v. Clemmons, 47539

• Citation: 682 S.W.2d 843
• Decision Date: 13 November 1984
• Docket Number: No. 47539,47539
• Parties: STATE of Missouri, Respondent, v. Eric CLEMMONS, Appellant.
• Court: Missouri Court of Appeals

Page 843

682 S.W.2d 843

STATE of Missouri, Respondent, v. Eric CLEMMONS, Appellant.

No. 47539.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 13, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 18, 1984.

Terry Burnet, St. Louis, for appellant.

John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

CRIST, Judge.

Appeal from jury convictions for capital murder and a Class A felony of Assault in the First Degree. Defendant was sentenced to life imprisonment without eligibility for probation or parole for a minimum of fifty years on the capital murder conviction (the death penalty having been waived) and ten years imprisonment on the assault convictions. The sentences were to be served concurrently. Defendant requests a new trial due to several instructional errors. We affirm.

On August 14, 1982, at about 1:30 in the morning, defendant, seven other men, and one woman were standing on the corner of Maryland and Whittier in the City of St. Louis. Six of these men, defendant, and the first victim testified as to the events that transpired thereafter. First victim testified he and deceased were coming down the street when they were attacked by three to five people. Deceased ran away while the attackers severely beat first victim with the aid of what first victim said was a baseball bat wielded by defendant. First victim was hospitalized by the beating.

While their testimony varied in the exact details of who did what to whom, those with defendant testified generally that while the group was talking, they heard a noise from down on Maryland. Defendant's brother was yelling that he was being robbed. The group went to his rescue, passing the deceased who was walking or running away. They found defendant's brother fighting with first victim, using a pipe as a weapon. After first victim was subdued and beaten, someone suggested they go after deceased. He was caught and beaten, defendant inflicting the fatal blows with the pipe. Defendant's testimony largely confirmed this account, with defendant claiming he went after deceased to recover gold chains deceased allegedly stole from defendant's brother, and that he hit deceased with the pipe in self-defense after deceased swung at him with a board.

Defendant asks for a new trial because of the submission of the capital murder instruction, MAI-CR2d 15.02 as modified by MAI-CR2d 2.12. He argues the instruction was erroneous because, in the paragraphs denominated First, Second, Third, Fourth and Fifth, the "other persons" defendant was alleged to have aided and abetted in the commission of capital murder were not named. Recognizing the error was not preserved for appeal, he requests review of this point as plain error. Rule 30.20.

This instruction was proper. Paragraph four of the Notes on Use to MAI-CR2d 2.12 indicates use of this instruction is appropriate when the evidence shows defendant acted with, or aided in any manner, another person or persons in the commission of an offense. The italicized portions of the instruction instruct the court to include the names of the other(s) involved, whose conduct or intent is to be imputed to the defendant. However, if the identity of these other person(s) is unknown, the court is clearly instructed to include "a general identification of the other(s) involved, such as ... 'other person(s).' "

The evidence is not clear as to who was with defendant when he struck the fatal blows. Three witnesses identified two persons, one other witness identified three (the two identified by the first witnesses plus a third), another identified one (who was one of those identified by the first witnesses), and defendant identified two (the one of the first two not identified by the last witness and an entirely new person). Given this lack of clarity, we find no plain error in the use of the general identification in the challenged instruction.

Defendant claims reversible error in the submission of the instruction on justifiable homicide, MAI-CR2d 2.41.1, including paragraph two of the model instruction presenting the law of self-defense which indicated that only if defendant was not the initial aggressor could the jury acquit him on the basis of self-defense, and omitting paragraph three of the model instruction presenting the law on self-defense when defendant was justified in being the initial aggressor. Defendant testified deceased and first victim had stolen a gold chain...