State v. Donahue
Decision Date | 10 February 2009 |
Docket Number | No. WD 67745.,WD 67745. |
Citation | 280 S.W.3d 700 |
Parties | STATE of Missouri, Respondent, v. Myson D. DONAHUE, Appellant. |
Court | Missouri Court of Appeals |
S. Kate Webber, Kansas City, MO, for appellant.
Shaun J. Mackelprang, Daniel N. McPherson, Jefferson City, MO, for respondent.
Before Court En Banc: THOMAS H. NEWTON, C.J., HAROLD L. LOWENSTEIN, PAUL M. SPINDEN1, JAMES M. SMART, JOSEPH M. ELLIS, VICTOR C. HOWARD, RONALD R. HOLLIGER1, LISA WHITE HARDWICK, JAMES E. WELSH, JOSEPH P. DANDURAND and ALOK AHUJA, JJ.
Myson Donahue ("Donahue"), tried by a Jackson County jury, was convicted of first degree murder, pursuant to Section 565.0202, and armed criminal action, pursuant to Section 571.015. He was sentenced by the court to life without parole on the murder conviction and a thirty-year concurrent sentence for armed criminal action. Donahue's first point on appeal seeks a new trial under plain error review for juror misconduct, while his second point raises a question of the sufficiency of the evidence supporting the elements of deliberation and intent. The court will first address the sufficiency of the evidence.
I. FACTUAL BACKGROUND
Where the appellant challenges the sufficiency of the evidence supporting a conviction, "[a]ppellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror could find the defendant guilty beyond a reasonable doubt." State v. Williams, 24 S.W.3d 101, 118 (Mo.App. 2000) (citing State v. Ellison, 980 S.W.2d 97, 98 (Mo.App.1998); State v. Brown, 996 S.W.2d 719, 728 (Mo.App.1999)). The appellate court must not act as a "super juror" exercising veto power, but, rather, must give great deference to the trier of fact. Id. The facts in evidence at trial are viewed in a light most favorable to the verdict. State v. Barriner, 111 S.W.3d 396, 397 (Mo. banc 2003).3
Daniel Johnson, the victim, and Amanda James ("James") met at a club in Kansas City in the late evening of October 10, 2004. At about 3:00 a.m. they left in separate cars. He forgot something in her car, and she phoned him to meet her at a nearby all-night gas station at 75th Street and Troost Avenue. She arrived first and backed her car into an area by a retaining wall at the back of the lot near the car wash. She remained in her car, facing the rows of gas pumps. Behind her car arose a cement retaining wall. In back of the retaining wall was a six-foot wood privacy fence which bounded the back yards of several homes. James testified that cars were steadily coming into the station, and after a few minutes, there were twelve cars and a number of people in the area.
Shortly after parking she heard a loud "popping" noise and then everyone in the station "looked my way." She testified: Johnson did not get up. James saw the bullet-hole in the back of Johnson's head. James stated: (Emphasis added.)
Johnson had died instantly. His body was sprawled between the two cars. James's car had a mark near the drivers' window, made by a bullet, on the back-edge of the top of her car. Photos and diagrams of the scene indicated that the two cars were within ten feet of the retaining wall and within twenty-five to thirty feet from two large overhead lighting fixtures.
The shots were determined to have come from the adjoining lot. The six foot privacy fence ended almost even with James's car, leaving a clear view of both cars. There were tall bushes or trees on the other side of the opening in the fence. Police found live shells and casings in the adjoining yard of Donahue's mother's house. The area from which the shots were fired is slightly elevated from the parking lot consistent with the slight downward angle of the path of the fatal bullet through the victim's head4.
According to Donahue's October 9 statement, he had been celebrating his birthday in the house on the night in question with his cousin, his girlfriend, whose last name he could not remember, and the girlfriend's nephew. They had been playing games, drinking "Hennessey," and smoking "weed." Donahue had taken one and one half Ecstasy pills.
Donahue stated that when the others left, he took a sawed off rifle from his brother's dresser and went to the back fence. He stated that he could hear people and saw people and cars in the parking lot. Donahue, who stands five feet seven inches, said in his statement, in an effort to "just scare people," held the rifle over the fence with one hand and fired some five or six shots over the six foot fence in a span of thirty to forty-five seconds, the gun jamming after each shot. When he was finished he took the gun into the house, placed the gun back in the dresser, and walked to his girlfriend's house, where he stayed until 8:30 or 9:00 the next morning. Later, Donahue's brother called to ask if Donahue knew about a shooting that had taken place at the gas station. Donahue stated, "I told him I didn't know." Thereafter, Donahue went to a hotel, and one and one-half days later, called his uncle in Joplin. Donahue then went to Joplin where his uncle told him to turn himself in to the police.
Under Section 565.020, a person commits first degree murder by knowingly causing the death of another after deliberation. The verdict director for first-degree murder, MAI-CR 3d 314.02, requires that: (1) the defendant caused the death of Johnson; (2) the defendant knew or was aware his conduct was practically certain to cause the death; and (3) the defendant did so after deliberation.
The record provides ample evidence of the second element that the defendant knew that his actions were practically certain to cause the death. When James parked at the back of the gas station, there were several people there and "cars were steadily coming into the station." After a few minutes James "heard a loud popping noise" and could see "everyone was just looking at me." Thirty seconds later, the victim arrived and parked next to her car. He took one step, another shot was fired, and he fell in the space between their two cars. James screamed, and "[p]eople [in the parking lot] were looking and scared to come over there." The people soon left. James dialed 911. A policeman arrived shortly and determined Johnson had been shot in the head and was dead.
Pictures taken at the scene and introduced in evidence, the testimony of Ms. James, and the statement of the defendant all confirm that the parking lot and the station were well-lighted by overhead lights located within thirty-five feet of the two cars. Moreover, there were people and cars in close proximity to the spot where Johnson fell. The testimony and exhibits showed that the area from where the shots were fired, and where rifle shells, both live and expended, were recovered, was dark, overgrown, and elevated several feet over the level of the parking lot. Most importantly, the numerous photo exhibits depict a gap of some two to three feet between the fence and bushes, offering a clear sight and direct line to both cars and to the body found between them. Photos also depict the dent on the driver's side roof of James's car left by the first shot fired just after she arrived.
In his statement to police, the defendant said he fired "about five or six" shots from a "sawed down" rifle over the six-foot fence in a 30-45 second span. The defendant said the gun jammed after each shot. After the last shot, he stated he returned to his mother's home, located just behind the gas station, put away the gun, and went to the house of his girlfriend for the night. His brother advised him the next morning that someone had been shot the night before in the gas station parking lot. He then went to a hotel, called his uncle in Joplin, and went to see the uncle who told him to turn himself in. He claims he did not know he had shot anyone or that one of his shots hit James's car.
Johnson was hit in the side of the head while standing in a well-lighted parking lot. According to the State's theory, it would have been impossible from a perch above the lot, for the defendant, who is five feet seven inches tall, to fire one-handed over a six-foot fence and with two shots, interrupted by un-jamming and reloading, hit the side of a car, and then the side of a man's head from less than thirty feet away, the bullets striking within six feet of each other. The jury, as trier of fact, could disbelieve the defendant's version from his statement and could have determined that the two shots in question were fired from the opening between the fence and bushes into a well-lit area where there were cars and people afoot and that the shooter then went behind the fence (so as not to be seen) after each shot to deal with the jammed weapon, and then reloaded. From the photographic exhibits, the jury could have reasonably concluded that the shots were not fired from behind (and over) the fence but were fired from a level position between the fence and the bushes as one shot landed on one side of the top of James's car and the other shot struck the side of the victim's head a minute later. Shooting down into a well lighted, populated parking lot, the defendant's actions were practically certain to cause the death.5
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