State v. Ferguson, 75407

CourtUnited States State Supreme Court of Missouri
Citation887 S.W.2d 585
Docket NumberNo. 75407,75407
PartiesSTATE of Missouri, Respondent, v. Jeffrey R. FERGUSON, Appellant.
Decision Date22 November 1994

Melinda K. Pendergraph, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

LIMBAUGH, Judge.

A jury convicted Jeffrey Ferguson of first degree murder for his complicity in the death of Kelli Hall. The trial court, abiding the jury's recommendation, imposed the death sentence. Ferguson filed a motion for postconviction relief under Rule 29.15, which was heard and overruled. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. The conviction is reversed and remanded for a new trial.

Ferguson contends that the trial court committed reversible error in submitting a verdict director allowing the jury to find him guilty without finding that he deliberated as required under § 565.020, RSMo 1986, the first degree murder statute. He explains that by charging the element of deliberation in the alternative--to either "defendant or [codefendant] Kenneth Ousley"--the jury was not required to find that defendant, himself, deliberated. The verdict director, Instruction No. 9, was submitted to the jury as follows:

INSTRUCTION NO. 9

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 9, 1989 or February 10, 1989, in the County of St. Louis, State of Missouri, the defendant or Kenneth Ousley caused the death of Kelli Hall by strangling her, and

Second, that defendant or Kenneth Ousley knew or was aware that his conduct was practically certain to cause the death of Kelli Hall, and

Third, that defendant or Kenneth Ousley did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,

then you are instructed that the offense of murder in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

Fourth, that with the purpose of promoting or furthering the commission of that offense of murder in the first degree, the defendant acted together with or aided Kenneth Ousley in committing that offense,

then you will find the defendant guilty of murder in the first degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the first degree.

Ferguson specifically objected to this instruction "as being an incorrect statement of the law ... and for charging repeatedly throughout the body of the instruction in the alternative...." The trial court overruled the objection, but Ferguson neglected to raise the point in his motion for new trial. Ferguson now requests plain error review as both he and the State are under the impression that the point was not properly preserved. Under Rule 28.03, however, plain error review is not required. The rule states that "specific objections to given or refused instructions and verdict forms shall be required in motions for new trial unless made on the record at the time of trial." Because Ferguson made a specific objection on the record at trial, it was not necessary to raise the point in his motion for new trial, and the issue was adequately preserved.

On the merits, Ferguson's objection is well taken. Under State v. Ervin, 835 S.W.2d 905, 923 (Mo. banc 1992), and State v. O'Brien, 857 S.W.2d 212, 217 (Mo. banc 1993), the verdict directing instruction for first degree murder must ascribe the element of deliberation to the defendant specifically, even though the charge is premised on accessory liability. Although the conduct of a defendant may be imputed to a codefendant, the element of deliberation may not. O'Brien, 857 S.W.2d at 218. The rationale for this rule, though not expressly stated in Ervin or O'Brien, is that the failure to ascribe deliberation to the defendant relieves the State of its burden of proving the requisite mental state of the offense. An instruction that relieves this burden violates due process and constitutes error. State v. Erwin, 848 S.W.2d 476, 484 (Mo. banc 1993), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993). In this case, paragraph third of Instruction No. 9 charges the element of deliberation alternatively to the "defendant or Kenneth Ousley" (emphasis added). Couching the instruction in the disjunctive by using "or" rather than "and" allows the jurors to find the element of...

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18 cases
  • Ramsey v. Bowersox, 97-1576
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 10 Junio 1998
    ...required the jury to find beyond a reasonable doubt that Ramsey himself had deliberated, as Missouri law requires, see State v. Ferguson, 887 S.W.2d 585, 587 (Mo.1994). The instruction did not violate due process. See Kilgore v. Bowersox, 124 F.3d 985, 991 (8th Cir.1997); Thompson v. Missou......
  • Wilkins v. U.S. Bank, Nat. Ass'n., 06-2163.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • 19 Septiembre 2007
    ...... be liberally construed in the plaintiff's favor and "`should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of ......
  • State v. Ferguson
    • United States
    • United States State Supreme Court of Missouri
    • 30 Mayo 2000
    ...and death sentence for the 1989 murder of Kelli Hall. The first conviction was overturned because of instructional error. State v. Ferguson, 887 S.W.2d 585 (Mo. banc 1994). In this case, like the other, Ferguson was convicted by a jury in the St. Louis County Circuit Court of murder in the ......
  • State v. Roe
    • United States
    • Court of Appeal of Missouri (US)
    • 26 Octubre 1999
    ...an instructional error for review if counsel either objected at trial or raised the issue in a motion for new trial. See State v. Ferguson, 887 S.W.2d 585, 586-87 (Mo. banc 1994); State v. Moriarty, 914 S.W.2d 416, 421 and n. 3 (Mo.App. W.D. 1996); Rule 28.03 V.A.M.R., Historical Note. Beca......
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