State v. Dooley
| Decision Date | 24 October 1995 |
| Docket Number | No. 65817,65817 |
| Citation | 919 S.W.2d 539 |
| Parties | STATE of Missouri, Respondent, v. Louis DOOLEY, Appellant. Louis DOOLEY, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Arthur S. Margulis, David R. Crosby, Margulis & Grant, P.C., St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Joanne E. Joiner, Assistant Attorney General, Jefferson City, for respondent.
Defendant appeals from his convictions of robbery in the first degree, assault in the first degree with serious physical injury, and two counts of armed criminal action. Jury recommended punishment of twenty years for the robbery count, thirty years for the armed criminal action count pertaining to the robbery, life imprisonment for the assault count, and fifty years for the armed criminal action count pertaining to the assault. The court imposed the sentences recommended with the first three counts to run concurrently and the fifty year sentence to run consecutively. We affirm in part, reverse in part, modify in part and remand for resentencing.
In the evening the victim, Rodney Lovings, was awakened by a telephone call from Michelle Fochtmann, his former girl friend and the mother of his daughter. She requested that he take care of their six month old daughter for a week so she could seek employment. He refused and an argument ensued. He hung up but Ms. Fochtmann called back. The argument continued and Lovings stated he was coming over to her apartment to see his daughter. She requested that he not come over. There was testimony from Fochtmann that Lovings threatened to "kick her behind". Lovings denied making a threat. He went to her apartment. He was met in the apartment by defendant and several other men, including Lee Cross. Defendant and Cross each had guns. Cross' gun was a .44 Magnum; defendant's was either a .38 or a .380. The men searched Lovings for a weapon but found none. He was then escorted from the apartment and once outside the men demanded a gold chain, a ring, his money and car keys which they took from him. Lovings testified that he was then told to run which he did. He testified that as he was running both Cross and defendant shot at him and he was struck by bullets causing several superficial wounds and a serious life threatening wound to his leg which sustained a severed artery. He has permanent damage to the leg and walks with a limp.
Defendant testified that when Lovings arrived at the apartment he was belligerent and demanded to know "where is that bitch at". Defendant, Fochtmann's boy friend at the time, and Cross drew guns and ordered Lovings out of the apartment. Lovings threatened those present in the apartment. Defendant admitted having met Cross and at least one of the other men previously, but testified that they were not his friends but Michelle's. Defendant was from Illinois and the other men were from St. Louis. After Lovings was escorted out the door, Cross and the other men, over the objection of defendant, robbed Lovings. Defendant testified that he and Cross then escorted Lovings to his car and when Lovings reached his car Lovings grabbed a gun from his vehicle and gunfire ensued. Defendant testified that he did not fire any shots but was attempting to avoid being hit.
No evidence was adduced as to the source of the bullets which struck Lovings, i.e., whether the source was Cross' gun, defendant's gun or both, and there was therefore obviously no evidence of the source of the life-threatening wound.
Defendant was charged in each of the four counts with committing the crime while with "another, acting together". After the close of the evidence, during the instruction conference, the state sought to amend the indictment by interlineation to strike from the assault count and the companion armed criminal action count the words "and another, acting together". The state took this course of action to preclude a defense instruction positing that the person with whom defendant was acting, Cross, was acting in self-defense, a contention supported by defendant's testimony. Defendant objected to the amendment, but the trial court allowed it. The court then held no self-defense instruction concerning Cross was pertinent and refused defendant's instruction that he was acting in self-defense on the basis that defendant denied that he fired shots at Lovings at all.
Defendant contends that the conviction for assault in the first degree with serious physical injury, and the companion count of armed criminal action were unsupported by the evidence and the motion for directed verdict at the conclusion of the evidence should have been granted.
Section 565.050, RSMo 1994 provides that a person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person. Assault in the first degree is a Class B felony unless the actor inflicts serious physical injury on the victim in which case it is a Class A felony. As to defendant the charge and submitted assault was the Class A felony. The state did not choose to submit as a lesser included offense the assault first degree Class B felony which does not require proof that serious physical injury was in fact inflicted. "Serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body. § 565.002(6) RSMo 1994. There is no doubt that at least one of the bullets which struck Lovings caused serious physical injury.
It was necessary for the state to establish that defendant attempted to kill or cause serious physical injury to Lovings and that defendant in fact did inflict serious injury to Lovings by shooting him. Under concepts of accessory liability, the proof was adequate to establish the elements of the crime. It was a reasonable inference under the evidence that Cross and defendant were acting together and that the serious physical injury sustained by Lovings was the result of their conduct while acting together. When the state amended the indictment to eliminate accessory liability it placed upon itself the burden of establishing that defendant alone caused the serious physical injury to Lovings, and the jury was so instructed. If the injury to Lovings was caused by Cross, then defendant, charged only as a principal, was not guilty of the Class A felony charged. By the amendment the state converted Cross into an independent actor whose actions did not affect or determine the liability of defendant. With the amendment the scenario became that of two individuals separately and independently shooting at the same victim, with neither bearing responsibility for the actions of the other. In its brief, the state agrees with the legal scenario presented above.
The evidence was adequate to establish that defendant intended to kill or seriously injure Lovings and that he shot at Lovings with that intention. But there is no conclusive evidence that defendant in fact...
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