State v. Deckard

• Decision Date: 24 April 2000
• Citation: 18 S.W.3d 495
• Parties: (Mo.App. S.D. 2000) State of Missouri, Respondent, v. Ulysses Ray Deckard, Appellant. 22312 0
• Court: Missouri Court of Appeals

18 S.W.3d 495 (Mo.App. S.D. 2000)

State of Missouri, Respondent, v. Ulysses Ray Deckard, Appellant.

22312

Missouri Court of Appeals Southern District

04/24/2000

Appeal From: Circuit Court of Laclede County, Hon. James A. Franklin, Jr

Counsel for Appellant: Richard L. Schnake

Counsel for Respondent: Susan K. Glass

Opinion Summary: None

Garrison, C.J. and Prewitt, J., concur.

Robert S. Barney, Judge

On January 12, 2000, this court issued an opinion in this cause. On March 27, 2000, by order of the Supreme Court of Missouri, Appellant Ulysses Ray Deckard's application to transfer this cause was sustained and on the same date, this cause was retransferred to this court for reconsideration in light of the Supreme Court of Missouri's opinion in State v. Scott Robert Beeler, No. 81975, slip op. (S.Ct., filed Feb. 22, 2000).

The original opinion of this Court, as modified in light of State v. Beeler, is readopted and reissued. Two additional cases have been added to the original opinion to clarify this court's holding that Appellant was not entitled to an involuntary manslaughter instruction by the trial court.

I.

Ulysses Ray Deckard ("Defendant") appeals from a jury verdict which found him guilty of second degree murder and one count of armed criminal action arising from his shooting and killing Wade Hisey with a shotgun. See sections 565.021.1(1) and 571.015.¹ The Circuit Court of Laclede County sentenced Defendant to concurrent terms of life imprisonment in the Missouri Department of Corrections.

In his sole point on appeal, Defendant contends that the trial court plainly erred in refusing to give his tendered instructions, discussed below, "which would have submitted the issues of voluntary and involuntary manslaughter to the jury."² We affirm.

We initially observe that an assertion of plain error under Rule 30.20 places a much greater burden on a defendant than an assertion of prejudicial error.³ See State v. Mitchell, 975 S.W.2d 191, 199 (Mo.App. 1998). A defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant's rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected. See Id.

"This Court reviews the facts in the light most favorable to the verdict." State v. Chaney, 967 S.W.2d 47, 49 (Mo. banc 1998). In doing so, we consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict and we disregard all inferences to the contrary. See State v. Perry, 954 S.W.2d 554, 557 (Mo.App. 1997); State v. Gaston, 897 S.W.2d 136, 137 (Mo.App. 1995). "The jury, not the appellate court, is responsible for weighing the reliability and credibility of the witnesses." State v. Allison, 845 S.W.2d 642, 645 (Mo.App. 1992). A jury may believe all, some or none of the testimony of any witness. Id.

II.

Defendant and Lisa Lawson ("Lisa") had been living together off and on for several years before their break-up on June 13, 1996.⁴ Lisa worked at Mazzio's Pizza in Lebanon, Missouri, where Mr. Hisey worked as the manager. At some point Mr. Hisey and Lisa had had a close relationship; however, Mr. Hisey's attentions then turned to another girlfriend, and although working together, their relationship became distant.

Some four months before the homicide in question, Defendant had confronted Mr. Hisey concerning his relationship with Lisa. It was at this time Defendant told Mr. Hisey that "if he didn't leave Lisa alone that he would kill him."

On June 13, 1996, Lisa asked Defendant to leave their mutual home and in compliance with her wishes he began preparations to move out. He was upset. Defendant then went to Lisa's parents' home and retrieved a single barrel, 12 gauge shotgun that he had previously loaned Lisa's brother for turkey season.⁵ In a statement made to police after the homicide, Defendant stated that after retrieving his shotgun, he stopped at his body shop to get a screwdriver "to take a waterbed apart," and then returned to his old abode.⁶ He told the police that after returning home he retrieved several other guns and placed them in the trunk. He recounted that he placed the shotgun back in the front seat of his car. He then took Lisa to work at Mazzio's Pizza at eleven o'clock a.m., returned to his home, drank a few beers and played basketball with some neighborhood kids. He then commenced watching television. About the same time he had a conversation with Lisa's sister, Christy Rogers.

Ms. Rogers related to Defendant that Mr. Hisey was supposed to take her and "Kayla" (Lisa's daughter) cruising on the night of June 13, 1996. At this point Defendant became angry and, according to Ms. Rogers, he "punched the TV," cracking the screen. Furthermore, according to Ms. Rogers "he got the gun out of the trunk and went and put it in the front seat," contradicting Defendant's statement that he had already placed the shotgun in the front seat of the car.

Following the conversation with Ms. Rogers, Defendant got in the car and left. He subsequently arrived at Mazzio's Pizza at approximately 2 p.m. of the same day. Lisa saw Defendant pull up outside of the restaurant and went out to talk to him. Defendant asked Lisa whether Mr. Hisey was going to take her sister and daughter cruising that night. When Lisa denied knowing anything about it, Defendant retrieved the shotgun out of the car and walked inside with the shotgun. At this time the shotgun was not pointed in the direction of Mr. Hisey. The evidence reveals that Defendant then confronted Mr. Hisey, who was standing behind the counter next to the register. Defendant yelled at Mr. Hisey and tried to get him to go outside. Defendant's tone was not conversational, but angry. Lisa attempted to intervene and was shoved out of the way by Defendant. Mr. Hisey's sister, Wanda Nguyen, talked to Defendant and attempted to wedge herself between Defendant and Mr. Hisey but was pushed away by Mr. Hisey. When Mr. Hisey reached for the phone Defendant, standing some two feet from him, raised the shotgun to Defendant's shoulder and pointed it at Mr. Hisey's head. Defendant ordered him to put down the phone stating that "[y]ou going to pick up that f___ing phone, I'm going to blow your f___ing head off . . . ." Mr. Hisey then placed the phone back down on the receiver and looked up to his side, in the direction of a clock on the wall. Defendant then fired the shotgun, killing Mr. Hisey.

Defendant immediately departed from Mazzio's Pizza. After spending the night in the woods near the interstate highway, Defendant turned himself into law enforcement authorities and made a statement at the Lebanon Police Department regarding the homicide. Defendant told police that he thought the shotgun was not loaded when he walked into the restaurant with it.

Defendant was charged with one count of murder in the first degree and one count of armed criminal action. Sections 565.020.1 and 571.015, respectively. At trial Defendant proffered instructions "A," "B," and "C." For the sake of clarity we discuss them out of order. Defendant's Instruction "B" was in the form provided by MAI-CR 3d 313.08 for a voluntary manslaughter submission; Instruction "C" was in the format set out in MAI-CR 3d 313.10, submitting involuntary manslaughter. In Instruction "A," based on MAI-CR 3d 313.04, submitting second degree murder, Defendant set out paragraphs First and Second, as in a conventional second degree murder submission. Also, in an additional "Third" paragraph to Instruction "A," Defendant sought to instruct the jury that second degree murder required a finding that Defendant did not act "under the influence of sudden passion arising from adequate cause." See paragraph 4, "Notes on Use," in MAI-CR 3d 313.04.⁷ The trial court refused to submit these instructions.

In his sole point on appeal, Defendant contends that the trial court plainly erred in refusing to give Defendant's three tendered instructions ("A," "B," and "C"). He argues that there was evidentiary support for their submission. In determining whether Defendant is entitled to a particular jury instruction, we review the evidence in the light most favorable to Defendant. See State v. Howard, 949 S.W.2d 177, 180 (Mo.App. 1997).

As a general proposition, "'[i]n determining the degree of an offense which is to be considered by a jury a defendant is entitled to an instruction which is supported by the evidence and any inferences which logically flow from the evidence.'" State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App. 1991)(quoting State v. Saffold, 563 S.W.2d 127, 129 (Mo.App. 1978)). "'An instruction on a lesser included offense is required only if the evidence of probative value could form a basis of acquittal of the higher offense and a basis for conviction of the lower.'" Id.(quoting State v. White, 738 S.W.2d 590, 592 (Mo.App. 1987)). III.

Instructions "B" and "A".

Voluntary manslaughter is a lesser included offense of second

degree murder, the crime for which Defendant was convicted in this case. See State v. Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996); see also section 565.025.2(2). "A trial court is required to instruct on a lesser included offense 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, and if such instruction is requested by one of the parties or the court." Id. "[I]f there is any doubt concerning the evidence, the trial court should resolve any doubts in favor of instructing on a lower degree of the crime, leaving it to the jury to decide which of two or more grades of offense, if any, the defendant is guilty." State v. Johnston, 957 S.W.2d 734, 751 (Mo. banc 1997).

"The crime of voluntary manslaughter is defined as causing the death of another person under circumstances that would constitute murder in the second degree, except that the death...