State v. Davis

• Decision Date: 21 August 1990
• Docket Number: No. WD,WD
• Citation: 797 S.W.2d 560
• Parties: STATE of Missouri, Respondent, v. Stephen E. DAVIS, Appellant. 42373.
• Court: Missouri Court of Appeals

Page 560

797 S.W.2d 560

STATE of Missouri, Respondent, v. Stephen E. DAVIS, Appellant.

No. WD 42373.

Missouri Court of Appeals,

Western District.

Aug. 21, 1990.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 2, 1990.

Application to Transfer Denied Nov. 20, 1990.

David S. Durbin, Appellate Defender, Anthony P. Cardarella, Asst. Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before NUGENT, C.J., FENNER, J., and WASSERSTROM, Senior Judge.

NUGENT, Chief Judge.

Defendant Stephen E. Davis appeals from the judgment on his conviction by a jury on one count of second degree murder, one count of first degree attempted robbery, and two counts of armed criminal action. We affirm the judgment of the trial court.

Mr. Davis argues that the trial court erred in overruling defense counsel's motion for judgment of acquittal at the close of the state's evidence because the state failed to introduce sufficient independent proof of all the essential elements of the corpus delicti of attempted robbery and felony murder. He further contends that the trial court erred in submitting the verdict director for attempted robbery because the state had failed to show that an attempted robbery had occurred.

The evidence shows the following: On the evening of May 16, 1988, defendant Davis and three companions met at Thompson's cafe on the corner of 31st and Troost Avenue. At about 9:45 the quartet entered Mr. Davis' car and he began driving, looking for someone to rob. Approaching the intersection of Armour Boulevard and Main Street sometime after ten o'clock, they sighted a pedestrian. In a later statement to the police, defendant Davis described him as a blond white man wearing dark pants and a white T-shirt. The group chose him as their robbery victim.

The defendant's three passengers got out of the car at the Burger King restaurant on the northeast corner of Armour and Main, instructing him to drive to 37th Street and to wait for them just east of Main. He drove to 37th Street and could see his companions following Mr. Henges on 36th Street. He circled once, and as he returned to 37th Street, heading east towards Walnut Street, he saw his companions running toward him from Warwick Boulevard, a little more than a block away. They quickly entered the car, and he drove away. One of his companions, Joseph Lee, displayed a pistol and exclaimed, "I had to pop him," or "I had to pop that dude," "pop" in street terminology meaning "to shoot."

The quartet spoke no more but drove to Thompson's where the defendant parted company with his companions sometime after eleven thirty. According to his statement, he then drove to his girlfriend's apartment about fifteen blocks away, arriving during a one o'clock news broadcast.

At 10:25 that same evening, a Kansas City patrolman responding to a dispatch found Richard Henges near the intersection of 36th and Warwick lying dead in a pool of blood. The wristband of his watch bore signs of a struggle. At about the same time, a few blocks away Judy Parrish found Mr. Henges' credit cards on the street. After a telephone call from Ms. Parrish, Susan L. Peebles, Mr. Henges' estranged wife, who dined with him earlier that evening, retrieved the cards from Ms. Parrish. As she approached the intersection of 36th and Warwick, Ms. Peebles noticed flashing police lights and stopped to investigate. She found her husband's bloodied clothes, and soon went to St. Luke's hospital, where she identified his body. An autopsy revealed that he died from a bullet wound above an eyebrow. Neither the police nor the coroner found any evidence of powder burns on the victim's hands or face.

Acting on an informant's tip, the police questioned Sharon Wilson, defendant's girlfriend. On May 22, officers went to her apartment to find Mr. Davis. He fled on foot, but they caught him after a chase and took him to police headquarters for questioning. After waiving his Miranda rights, the defendant admitted that on the night of Mr. Henges' death he and his companions had decided to rob the blond man they sighted near Armour and Main and that upon returning to the car Mr. Lee said that he had "popped" the man.

The police released the defendant but questioned him again on May 27 and obtained a written statement from him. Detective Rickey Pilgrim reported that during the interview he asked defendant Davis about a black wallet that he and his three companions reportedly examined at Thompson's shortly after Mr. Henges' May 16 murder. Detective Pilgrim wrote that the defendant explained that the wallet came from a robbery of a man near 37th and Main on the evening of May 19.

The grand jury indicted the defendant on one count of second degree murder under § 565.021.1(2), ¹ which includes within the definition of murder in the second degree felony murder, in which a person causes the death of another during the perpetration or attempted perpetration of a felony. Another count of indictment also charged him with one count of first degree robbery and two counts of armed criminal action.

At trial, Susan Peebles testified that Mr. Henges had brown hair but that his hair had a blond tint at the front and on the top of his head. In addition, she testified that before they parted at about eight o'clock on the night of his death he had just cashed a check. The defendant objected several times to the introduction of his statements to the police, arguing that the state had failed first to introduce evidence of the corpus delicti of either murder or robbery. The court overruled those objections.

The state substituted a jury instruction for first degree attempted robbery for an instruction on first degree robbery. The jury found the defendant guilty of second degree murder, first degree attempted robbery and two counts of armed criminal action. The court sentenced him to a total of twenty-one years in prison, and he appealed.

In his first point on appeal, the defendant contends that the trial court erred in overruling his objections to the introduction of any evidence pertaining to the inculpatory statements he made to the police. He argues that the state could not introduce that evidence because it failed to prove the corpus delicti of either second degree murder or attempted robbery.

In addressing a challenge to the sufficiency of evidence at trial, an appellate court must view the evidence favoring the prevailing party and all reasonable inferences drawn from it as true and ignore all contrary evidence and inferences. State v. Mallett, 732 S.W.2d 527, 530 (Mo.), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). ² See also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The court employs this standard in reviewing all evidence, direct as well as circumstantial. State v. Williams, 652 S.W.2d 102, 111 (Mo.1983). We must determine whether the state presented evidence sufficient to allow submission to the jury. State v. Roby, 756 S.W.2d 629 (Mo.App.1988).

To prove guilt of any crime, the state must first demonstrate the crime's corpus delicti, or body of the crime. State v. Howard, 738 S.W.2d 500, 503-04 (Mo.App.1987). The corpus delicti consists of two elements: (1) that the loss or injury charged has occurred, and (2) that someone's criminal agency caused that loss or injury. State v. Ziegler, 719 S.W.2d 951, 954 (Mo.App.1986). In a homicide case, proof of the corpus delicti requires proof of (1) the victim's death and (2) the criminal agency of another as the cause of the victim's death. State v. Priest, 660 S.W.2d 300, 304 (Mo.App.1983). In addition, the state must demonstrate the accused's criminal action, which, although not a part of the corpus delicti, it may prove by the same evidence it uses in proving the corpus delicti's second element. Id.

To prove felony murder, the state need not show an intent to kill but need only show that the homicide occurred in the perpetration or attempted perpetration of a felony. § 565.021.1(2) (1984); State v....