State v. Cruz

• Decision Date: 09 October 2001
• Docket Number: No. WD 58943.,WD 58943.
• Citation: 71 S.W.3d 612
• Parties: STATE of Missouri, Respondent, v. Victor M. CRUZ, Appellant.
• Court: Missouri Court of Appeals

71 S.W.3d 612

STATE of Missouri, Respondent, v. Victor M. CRUZ, Appellant.

No. WD 58943.

Missouri Court of Appeals, Western District.

October 9, 2001.

As Modified December 4, 2001.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 4, 2001.

Application for Transfer Sustained January 22, 2002.

Case Retransferred April 23, 2002.

Court of Appeals Opinion Readopted April 30, 2002.

Sarah N. Weber, Asst. Appellate Defender, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for Respondent.

Before EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.

EDWIN H. SMITH, Presiding Judge.

Victor M. Cruz appeals the judgment of his jury conviction in the Circuit Court of Jackson County for armed criminal action (ACA), § 571.015.1,¹ based on his underlying felony conviction for second degree assault, § 565.060.1(5).

In his sole point on appeal, the appellant claims that the trial court plainly erred in giving Instruction No. 9, the State's verdict director submitting the offense of ACA, without hypothesizing a culpable mental state of "knowingly," because it violated due process and MAI-CR 3d 332.02,² the mandatory instruction for submitting ACA, and its applicable Notes on Use.

We affirm.

Facts

On the evening of May 6, 1998, the appellant received a phone call from his stepfather, James Mygatt, who was upset over an incident that had occurred earlier that day between Mygatt and the appellant's mother. Mygatt was recently divorced from the appellant's mother, having raised the appellant since he was twelve years old. Because Mygatt was upset and screaming at the appellant over the phone, the appellant decided he would try to calm him down in person. Just before 10:00 p.m., the appellant drove to Mygatt's father's residence located at 626 Fuller, Kansas City, Jackson County, Missouri, where Mygatt was staying. Mygatt was not at the home when the appellant arrived, so he waited. Once Mygatt arrived, the men began arguing in the front yard about Mygatt's verbal dispute with the appellant's mother. The arguing escalated into a shoving match between the men. Knowing that Mygatt kept guns in the house, the appellant went to his car, pulled out a shotgun, and loaded it. Mygatt said to the appellant several times, "Did I ever do you wrong?" The appellant pointed the shotgun at Mygatt, threatened to kill him, and then fired a shot into the ground near Mygatt's feet. The appellant then yelled, "I'll kill all you mother fuckers," and fired a second shot, striking Mygatt in the foot.

Upon hearing the shots, two neighbors, Gary Duncan and Steve Sparks, went to Mygatt's residence to see what had happened. They observed the appellant get into his car and begin to back down the road. As he neared the two men, the appellant lifted his gun off of the passenger seat and said to them, "Do you want some?" The appellant then drove to a nearby house where he called the police to report the shooting and told them to meet him at his house in Raytown. He then drove home.

Several officers from the Kansas City Police Department (KCPD) arrived at the scene of the shooting at about 10:10 p.m. in response to a 911 call. When the officers arrived, Mygatt was sitting on the porch, with his bleeding foot propped up on the table, being tended to by the ambulance crew. Before the officers could take his statement, Mygatt was loaded into the ambulance for transport to Independence Regional Hospital for treatment. The officers took statements about the shooting from Duncan, Sparks, and Ralph Mygatt, the victim's father. During their inspection of the crime scene, the officers found two spent shotgun shells, one live shotgun shell, and a hole in the ground which appeared to have been made by a shotgun blast.

Detective Jan Wallace of the KCPD was dispatched from the crime scene to the emergency room of Independence Regional Hospital to take Mygatt's statement. According to Mygatt's statement to Detective Wallace, when he arrived at the home, the appellant was there waiting for him. They then proceeded to argue. During the argument, the appellant went to his car, obtained a 12 gauge shotgun, walked back toward Mygatt, pointed the shotgun at him and threatened to kill him. The appellant then pointed the gun down toward the ground in Mygatt's direction and fired two shots, the second of which struck Mygatt in the foot.

As a result of the appellant's call to the police, a pick-up order was issued for him, to which Officer Katherine Kennedy responded. Upon arriving at the appellant's home, she found no one there, so she waited about ten to fifteen minutes. The appellant eventually arrived home around 10:20 p.m. and was ordered from his car by Officer Kennedy. After he exited his vehicle, Officer Kennedy handcuffed him and told him that he was being arrested for assault. As she handcuffed the appellant, he blurted out, "I shot my stepfather because he was hitting my car's windshield." Officer Kennedy found an unloaded shotgun and some shotgun shells in the passenger seat of the appellant's car. The next day, the appellant gave a statement to police that Mygatt had fired at least seven shots at him from two guns, and he had only fired his shotgun to keep Mygatt away.

A felony complaint was filed in the Circuit Court of Jackson County on May 7, 1998, charging the appellant with first degree assault, § 565.050; ACA, § 571.015; and two counts of unlawful use of a weapon § 571.030.1(4). A first amended information was filed on July 13, 1998, adding a fifth count of unlawful possession of a short-barreled shotgun, § 571.020.1(4).³ A second amended information was filed on April 19, 2000, charging the appellant in three counts with second degree assault, § 565.060; ACA, § 571.015; and unlawful use of a weapon, § 571.030.1(4).

The appellant's case proceeded to a jury trial before the Honorable John C. Andrews on June 13-14, 2000. At trial, Mygatt refused to testify, attempting to invoke a Fifth Amendment right to remain silent. Upon questioning by the State, out of the presence of the jury, he explained that he did not want to testify against the appellant because he would not "do anything to hurt any of [his] family members... This kid is like a part of me." The prosecutor explained to Mygatt that he could not assert a Fifth Amendment privilege, since none of his answers would in any way incriminate him. The trial court agreed, finding that Mygatt had not proven that he had "a right to take the Fifth Amendment in this case." After the jury was returned, Mygatt again stated that his "decision [was] to take the Fifth." The prosecutor then asked the court to declare Mygatt a hostile witness, which request was granted.

When asked about the events of May 6, 1998, Mygatt consistently testified either, "I don't remember," or "I don't recall." As a result, the State sought to impeach Mygatt's testimony using his testimony from the preliminary hearing, during which he testified, in pertinent part:

I saw [the appellant] at my father's address and he parked the car and he got out and started chewing my ass for not stopping and using my head and thinking instead of listening to other people. Telling one thing, led to another, a discussion between me and him, and him and my father was out there, you know, telling us to calm down, to keep the noise down. And somewhere along the line, tempers flared and I ended up shot.

When asked whether his preliminary hearing testimony was correct, Mygatt testified that he was not sure.

The appellant did not take the stand, nor did he call any witnesses in his defense. At the close of the State's evidence and at the close of all the evidence, the appellant filed motions for judgment of acquittal, which were overruled. The jury returned a verdict of guilty as to second degree assault and ACA, and not guilty as to unlawful use of a weapon. The jury recommended that the appellant receive a fine in an amount to be determined by the court for second degree assault and three years imprisonment for ACA.

The appellant filed a motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial on July 7, 2000, which was overruled on August 11, 2000. The trial court sentenced the appellant to a fine of $2,500 for second degree assault and three years imprisonment for ACA.

This appeal follows.

I.

In his sole point on appeal, the appellant claims that the trial court plainly erred in giving Instruction No. 9, the State's verdict director submitting the offense of ACA, without hypothesizing a culpable mental state of "knowingly," because it violated due process and MAI-CR 3d 332.02, the mandatory instruction for submitting ACA, and its Notes on Use. Specifically, he claims that, pursuant to § 562.021, in order to convict him of ACA under § 571.015.1, the jury was required to, inter alia, find that he "knowingly" committed the underlying offense of second degree assault and that by failing to instruct the jury in Instruction No. 9 in that respect, the jury was allowed to convict him on the lesser culpable mental state of "recklessly," the mens rea the jury was required to find in order to convict him of second degree assault.

The record reflects that appellant's trial counsel objected during the instruction conference to the giving of Instruction No. 9 on the basis that it was not supported by the evidence, which objection he renewed in his motion for new trial. However, the appellant concedes that counsel failed to specifically object, as required by Rule 28.03,⁴ to the giving of the instruction on the basis that it omitted the requisite mens rea of "knowingly," and requests plain error review, under Rule 30.20. In State v. Hibler, this court set forth the plain error standard of review for instructional error:

Giving the language in [Rule 30.20] its plain and ordinary meaning, we interpret it as providing for a two-step...