State v. Coleman

Decision Date06 May 1997
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Alonzo D. COLEMAN, Appellant. 52757.
CourtMissouri Court of Appeals

Jeannie Arterburn, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, Philip M. Koppe, Assistant Attorney General, Kansas City, for respondent.

Before ULRICH, C.J., P.J., and HANNA and EDWIN H. SMITH, JJ.

ULRICH, Chief Judge, Presiding Judge.

Alonzo Coleman appeals his convictions following jury trial for second degree felony murder, section 565.021.1(2), RSMo 1994, and armed criminal action, section 571.015, RSMo 1994, and consecutive life terms of imprisonment. Mr. Coleman raises seven points of error on appeal. He contends that the trial court erred in (1) refusing to submit an instruction for the lesser-included offense of involuntary manslaughter; (2) failing to declare a mistrial when the prosecutor argued during closing argument that the jury should impose a lengthy sentence; (3) overruling his Batson challenge to the prosecution's removal of three venirepersons; (4) admitting into evidence his "permit to transfer firearm"; (5) sentencing him for the crime of second degree felony murder, thereby subjecting him to an 85 percent minimum sentence, instead of the crime of unlawful use of a weapon; (6) failing to submit his modified verdict director for felony murder which would have informed the jury of the mandatory minimum term law; and (7) convicting and sentencing him for both second degree felony murder and armed criminal action. The judgment of convictions is affirmed.

FACTS

Alonzo Coleman and Ronald Woods met each other the afternoon of September 16, 1995, while picking up their children from Satchel Paige Elementary School located at 75th and Walrond in Kansas City. The men began arguing about an automobile accident in which they had been involved more than a year earlier. Both men had been injured in the accident, which occurred while Mr. Coleman was driving the vehicle in which Mr. Woods was a passenger. Mr. Woods had made several attempts to obtain compensation from Mr. Coleman.

A teacher who heard the argument asked the men to go outside. As the argument continued in the school parking lot, a security guard approached the men. Mr. Coleman went to his car, retrieved a firearm from under the seat and tucked it in his waistband. The guard informed Mr. Coleman that he could not have the firearm on school property and told him to leave. Mr. Coleman explained that he had a permit to carry the firearm and began to show it to the security guard. Mr. Woods and Mr. Coleman resumed the argument, and the guard entered the school to call the police.

Both men then entered their cars and drove away. Mr. Coleman left first, proceeding north on Walrond. Mr. Woods, with his son, Cirr, in the front seat, and his daughter, Shaunda, riding in the back seat, followed in the same direction. Mr. Woods observed Mr. Coleman turn his car around in a driveway and drive back toward his car. When the cars met, the men stopped, rolled down their windows, and again resumed their argument.

Believing that the argument was over, Mr. Woods started to drive away. Mr. Coleman also began to leave in the opposite direction. Suddenly, Mr. Coleman fired a shot from his pistol. The bullet shattered the back window of Mr. Woods's car and struck Cirr in the head. Mr. Coleman then got out of his car, walked toward the Woods' car, stopped before reaching it, and returned to his car. He drove away. In the meantime, Mr. Woods drove Cirr to Research Hospital where Cirr died as a result of the single gunshot wound to the head.

Later that day, Mr. Coleman went to the police station, and after waiving his Miranda rights, made a videotaped statement. In his statement, which was introduced at trial, Mr. Coleman claimed that since the car accident in April 1994, Mr. Woods had been demanding compensation from him and his wife and that when the two men met at the school on September 16, 1995, Mr. Woods again demanded money. Mr. Coleman stated that Mr. Woods continued to "bump" him, was "in his face," and lunged at him in the parking lot of the school. He claimed that as he drove out of the lot, Mr. Woods followed him. He said that he was afraid Mr. Woods might shoot him or "ram" him with his car. Mr. Coleman also stated that after he turned his car around and met Mr. Woods in the middle of the street, Mr. Woods threatened, "I'm going to get you." Mr. Coleman admitted blindly firing one shot back towards the Woods' car to scare Mr. Woods. He claimed, however, that he did not aim the pistol at anyone but tried to fire it into the air.

Testifying in his own defense at trial, Mr. Coleman again stated that he did not point the firearm at anybody but was trying to shoot it into the air. He claimed that he feared Mr. Woods would "ram" him and cause a serious car accident.

The jury was instructed on second degree felony murder, armed criminal action, and self-defense. Mr. Coleman's request for an involuntary manslaughter instruction was denied by the trial court. Mr. Coleman was convicted of second degree felony murder and armed criminal action and sentenced to two consecutive life terms of imprisonment. This appeal followed.

I. LESSER-INCLUDED OFFENSE INSTRUCTION

As his first point on appeal, Mr. Coleman claims that the trial court erred in refusing to submit an instruction to the jury for the lesser-included offense of involuntary manslaughter. He argues that the evidence provided a basis for both an acquittal of second degree felony murder and a conviction of involuntary manslaughter.

A trial court is obligated to instruct on a lesser-included offense only if the evidence establishes a basis for acquittal of the greater offense and conviction of the lesser-included offense. § 556.046.2, RSMo 1994; State v. Mease, 842 S.W.2d 98, 110-11 (Mo. banc 1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2363, 124 L.Ed.2d 269 (1993). If a party requests an instruction and if the evidence, in fact or by inference, provides a basis for both an acquittal of the greater offense and a conviction of the lesser offense, a lesser-included offense instruction must be submitted to the jury. State v. Dewey, 869 S.W.2d 834, 837 (Mo.App.1994). A lesser-included offense instruction is not required where there exists "strong and substantial proof" of the greater offense charged or where the evidence does not suggest a questionable essential element of the more serious offense charged. Id. Undisputed facts may not be disregarded in determining an evidentiary basis for acquittal of the greater offense and conviction of the lesser. State v. Smith, 891 S.W.2d 461, 467 (Mo.App.1994).

Mr. Coleman was charged with second degree felony murder. A person commits the crime of second degree felony murder if he:

[c]ommits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony.

§ 565.021.1(2), RSMo 1994. The underlying felony providing the basis of the felony murder charge in this case was unlawful use of a weapon. A person commits the crime of unlawful use of a weapon if he knowingly "[d]ischarges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle." § 571.030.1(3), RSMo 1994. 1 To prove felony murder, the state need not show an intent to kill but only that the homicide occurred in the perpetration or attempted perpetration of a felony. State v. Davis, 797 S.W.2d 560, 563 (Mo.App.1990). It is the intent to commit the underlying felony, not the intent to kill, that is the gravamen of the felony murder offense. State v. Lassen, 679 S.W.2d 363, 369 (Mo.App.1984).

Involuntary manslaughter is a lesser-included offense of second degree murder. § 565.025.2(2)(b), RSMo 1994. A person commits the crime of involuntary manslaughter if he "recklessly" causes the death of another. § 565.024.1(1), RSMo 1994. A person acts "recklessly" when "he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." § 562.016.4, RSMo 1994. Thus, "recklessness" involves conscious risk creation and resembles knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a probability less than a substantial certainty. Smith, 891 S.W.2d at 467 (quoting State v. Harris, 825 S.W.2d 644, 647-48 (Mo.App.1992)).

Mr. Coleman argues that the evidence supported an involuntary manslaughter instruction. He contends that affirmative evidence existed of a lack of an essential element of the charged felony murder--intent to shoot into the Woods' car. Mr. Coleman relies on the recent Eastern District case, State v. Isreal, 872 S.W.2d 647 (Mo.App.1994), in arguing that he recklessly fired the shot that hit and killed Cirr. In Isreal, the defendant was convicted of second degree murder, first degree assault, and armed criminal action in the shooting of two men. Id. At trial, the defendant testified that he and one of the victims were arguing in front of a house when the victim pulled out a knife and took a step toward him. Id. at 649. The defendant stated that he put his left arm over his face, crouched down, and began shooting a .22 caliber pistol. Id. The defendant fired all of the rounds in the pistol. Id. The victim with the knife was wounded, and a bystander was killed. Id. at 648.

On appeal, the...

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  • State v. Williams
    • United States
    • Missouri Court of Appeals
    • April 11, 2000
    ...intent to commit the underlying felony, not the intent to kill, that is the gravamen of the felony murder offense." State v. Coleman, 949 S.W.2d 137, 142 (Mo. App. 1997). The purpose of the felony murder rule is to deter the commission of homicides during felonious activity by holding the f......
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    ...gravamen of Ivy's felony murder charge was the intent to commit the underlying felony of unlawful use of a weapon. See State v. Coleman, 949 S.W.2d 137, 142 (Mo.App.1997). At the time of its passage, the armed criminal action statute, § 571.015.4, expressly excluded its application to offen......
  • State v. Miller
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    ...the crime of involuntary manslaughter if he "recklessly" causes the death of another. § 565.024.1(1), RSMo 1994; State v. Coleman, 949 S.W.2d 137, 142 (Mo.App.1997); State v. Albanese, 920 S.W.2d 917, 925 (Mo.App.1996). Thus, to submit an instruction on involuntary manslaughter, sufficient ......
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