State v. DeJournett

• Decision Date: 14 December 1993
• Docket Number: 18459,Nos. 16717,s. 16717
• Citation: 868 S.W.2d 527
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William DeJOURNETT, Defendant-Appellant. William DeJOURNETT, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 527

868 S.W.2d 527

STATE of Missouri, Plaintiff-Respondent, v.William DeJOURNETT, Defendant-Appellant.

William DeJOURNETT, Movant-Appellant, v.STATE of Missouri, Respondent-Respondent.

Nos. 16717, 18459.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 14, 1993.

Motion for Rehearing or Transfer Denied Jan. 5, 1994.

Marcie W. Bower, Columbia, for defendant-appellant and movant-appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent and respondent-respondent.

SHRUM, Judge.

William DeJournett(the defendant) was convicted by a jury of second degree murder, § 565.021.1(1), RSMo 1986, armed criminal action, § 571.015, RSMo 1986, and unlawful use of a weapon, § 571.030.1(4), RSMo 1986.He was sentenced to life, 20 years, and 5 years imprisonment, respectively, with the terms to run consecutively.In Case No. 16717he appeals from the judgment imposing the sentences.The defendant charges that the trial court committed plain error in a verdict directing instruction, committed plain error in sentencing him for both murder and unlawful use of a weapon, abused its discretion in not ordering a mistrial following a question by the prosecutor concerning the defendant's sanity, and committed plain error in submitting the pattern "reasonable doubt" instruction.We affirm.

After sentencing, DeJournett (the movant) filed a pro se Rule 29.15motion seeking postconviction relief.The movant's pro se motion, which was not amended by his appointed postconviction counsel, was denied without an evidentiary hearing.In Case No. 18459he appeals from that denial.We affirm.

Pursuant to Rule 29.15(l ) the appeals were consolidated.

CASE NO. 16717-DIRECT APPEAL

The defendant's second degree murder conviction is for killing his wife, Lillian DeJournett, on March 31, 1988, by shooting her; his armed criminal action conviction is for use of a deadly weapon in committing Lillian's murder; and his "unlawful use of a weapon" conviction is for exhibiting "in the presence of one or more persons a 30-30 rifle ... in an angry and threatening manner."

The events of March 31, 1988, culminate a history of violence by the defendant upon his wife, Lillian, a history that we recount only to the extent necessary to dispose of the issues presented.

An incident on March 2, 1988, in which the defendant exhibited guns and threatened to kill Lillian, resulted in the defendant's guns, described as a "a .410 shotgun, a single shot[,] ... a 12-gauge ... and ... a .22 semi-automatic," being taken to the Reynolds County Sheriff's Office.Ultimately those guns were retrieved from that office by David DeJournett(defendant's son).Trying to keep the guns from the defendant, David put them in the bedroom of his (David's) home.Additionally, the Reynolds County sheriff and Michael DeJournett(defendant's son) accompanied the defendant to the Farmington State Mental Hospital.The defendant remained in the hospital for three to four days but was then released.

Thereafter, on the fateful March 31, 1988, date, around 2:00 p.m., Linda DeJournett(David's wife) returned to the mobile home occupied by her and David, where she found the defendant asleep on a couch.When he awoke, the defendant told Linda he was waiting on a call from his wife, Lillian.Linda then went into her bedroom where she saw guns leaning against a dresser.Fearful that defendant would get the guns, Linda hid them behind a door.

As anticipated by the defendant, Lillian did call.She talked to both Linda and the defendant.Later, Linda met Lillian at another site and accompanied her back to the David DeJournett mobile home.After talking with defendant for some time, Lillian went to the bathroom.The defendant also walked toward the bathroom following which Linda heard a scuffle and Lillian scream for help.Lillian then came from the bathroom and she and Linda walked into the kitchen.The defendant went into the bedroom and came out with a 30-30 rifle.As he walked toward the kitchen he started to use the lever on the rifle to "cock it".Linda screamed at him to put the gun down.As the defendant raised the rifle Linda was "facing the gun."She ran from the mobile home and then heard a shot from inside.Linda then fled to the home of her fatherRoy Foster, which was about a quarter of a mile away, where they called the sheriff.

Inside the mobile home, officers and others found Lillian's dead body.A 30-30 rifle found on the steps of the mobile home was identified at trial by Linda as the gun that was in the defendant's hands as Linda ran from her home on March 31, 1988.The 30-30 rifle identified by Linda was owned by Roy Foster but had been in the David DeJournett bedroom for some time.

Medical evidence was that Lillian died from loss of blood caused by a "contact" gunshot wound to her back that exited her chest.

DISCUSSION AND DECISION

Instructional Error-Plain Error Review

InstructionNo. 12, the verdict directing instruction for unlawful use of a weapon, contained an erroneous date.It directed the jury to find the defendant guilty if "on or about the 1st day of March, 1988,"he exhibited a "30-30 rifle ... in an angry or threatening manner."The charged incident occurred on March 31, 1988, not March 1, 1988.The defendant avers that this "erroneous instruction could have allowed the [jury] to convict based on other incidents presented in the state's evidence where [the defendant] flourished a weapon, thereby giving the jurors a roving commission to convict on uncharged offenses."

The evidence of other "flourishing" incidents to which the defendant refers are as follows.Through testimony of Linda Cowin, David DeJournett, and Michael DeJournett, ¹the state presented evidence that on March 2, 1988, and in the fall of 1987the defendant had threatened Lillian with weapons, variously described as "a long weapon" or a "rifle of some sort."Sheriff Barton testified that when he went to the defendant's residence on March 2, 1988, the defendant pointed two guns at him.Finally, documentary evidence showed that the defendant was charged with unlawful use of a weapon arising out of the March 2, 1988, incident.

The defendant concedes that this issue was not preserved inasmuch as he made no objection to InstructionNo. 12, either at trial or in his motion for new trial.He requests that we examine Point I under the plain error standard of Rule 30.20.²

When seeking plain error review a defendant must show "manifest prejudice affecting his substantial rights" as a prerequisite to obtaining relief.State v. Hornbuckle, 769 S.W.2d 89, 93(Mo. banc), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128(1989);State v. Hopkins, 841 S.W.2d 803, 804(Mo.App.1992).Instructional error is rarely plain error.State v. Brokus, 858 S.W.2d 298, 302(Mo.App.1993).More than mere prejudice must be shown in such a case.Id.

For instructional error to rise to the level of plain error, the trial court must have so misdirected the jury as to cause manifest injustice or a miscarriage of justice.State v. Parkus, 753 S.W.2d 881, 888(Mo. banc), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237(1988).An accused bears the burden of establishing manifest injustice.State v. Cline, 808 S.W.2d 822, 824(Mo. banc 1991);State v. Laws, 854 S.W.2d 633, 635(Mo.App.1993)."The determination of whether plain error exists must be based on a consideration of the facts and circumstances of each case."Laws, 854 S.W.2d at 635(citingCline, 808 S.W.2d at 824 ).With these principles in mind we examine the defendant's Point I relied on.

Linda DeJournett's testimony provides the only eyewitness account of the events that form the basis for the charge that on March 31, 1988, the defendant exhibited a 30-30 rifle in an angry and threatening manner.She testified that on March 31, as the defendant came out of the bedroom of her home, he had a rifle in his hands and he was using the lever on the gun to cock it.He then raised the weapon and pointed it at both Linda and Lillian.Immediately, Linda fled the mobile home.Once outside she heard a gunshot from inside the mobile home.At trial Linda identified the 30-30 rifle found on the front porch of her mobile home as the gun she saw in the defendant's hands on March 31 just before she ran from the trailer.

No testimony was elicited from Linda concerning the earlier flourishing incidents--whether she was present at those events does not appear from the record.Although the 30-30 rifle used by the defendant on March 31, 1988, was in evidence (exhibit 4) and was shown to several witnesses present at the earlier incidents, no one identified exhibit 4 as the weapon exhibited by the defendant on the earlier occasions.Further, the undisputed evidence is that the Winchester 30-30 rifle used on March 31, 1988, belonged to Roy Foster, whereas the guns taken from the defendant as a result of the March 2, 1988, incident were different, specifically they were a ".410 shotgun, a single shot[,] ... a 12-gauge ... and a .22 semi-automatic."

Based upon the foregoing we conclude that the jury could not have been misled as to the date of the charged offense of unlawful use of a weapon nor did the instruction give the jury a roving commission.InstructionNo. 12 focuses on a "30-30 rifle" as the weapon exhibited by the defendant in an angry and threatening manner.Linda DeJournett's testimony regarding the March 31, 1988, event was the only evidence in which a 30-30 rifle was identified as the weapon used.Wholly absent is any evidence that the defendant owned, had access to, or flourished a 30-30 Winchester rifle before March 31, 1988.Under the circumstances the "30-30 rifle" language of InstructionNo. 12 focused the jury's attention to the charged offense of March 31, 1988.

Furthermore, when making a determination if there is prejudicial error in a particular instruction, w...