State v. Fincher

• Decision Date: 28 February 2012
• Docket Number: No. WD 73262.,WD 73262.
• Citation: 359 S.W.3d 549
• Parties: STATE of Missouri, Respondent, v. Kirk FINCHER, Appellant.
• Court: Missouri Court of Appeals

359 S.W.3d 549

STATE of Missouri, Respondent,

v.Kirk FINCHER, Appellant.

No. WD 73262.

Missouri Court of Appeals, Western District.

Feb. 28, 2012.

Frederick J. Ernst, Assistant Appellate Defender, Kansas City, MO, for Appellant.

Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division II: GARY D. WITT, Presiding Judge, and JOSEPH M. ELLIS and MARK D. PFEIFFER, Judges.

MARK D. PFEIFFER, Judge.

Kirk Fincher appeals the judgment of the Circuit Court of Jackson County, Missouri(“trial court”), entered upon a jury verdict finding him guilty of murder in the first degree, § 565.020, RSMo 2000, and armed criminal action, § 571.015, RSMo 2000.The trial court sentenced him to life imprisonment without parole on the murder count and twenty years imprisonment on the armed criminal action count, to be served concurrently.Fincher raises two issues on appeal, asserting that the trial court: (i) plainly erred in failing to declare a mistrial sua sponte after he claims a reference was made by a witness to Fincher's post- Miranda silence; and (ii) abused its discretion in overruling Fincher's objection to the State's closing argument.We affirm.

Facts and Procedural History¹

A few days after Christmas in December 2008, Felicia Collins was in her Kansas City, Missouri, apartment, located at 116 North Belmont Avenue, with her brother, Suede Saenz; Miguel Love; Bethany Brashear; and Fincher.Her brother, Love, Brashear, and Fincher left.Later in the day, Debra Courtney, Suede Saenz's girlfriend; Larry Saenz, Collins's father; Simone Courtney, Debra Courtney's sister; Collins's two children, Knowledge and Wisdom; Chloe Saenz, Collins's sister; and Jeremy John and his girlfriend, Lauren, were in Collins's apartment, “hanging out, trying to chill and drink.”John went out the back door and made a telephone call.When he returned in about five minutes, he left the back door unlocked.Less than a minute later, five masked and armed men entered the apartment, robbed Collins, and assaulted Collins and her father.

Suede Saenz, Love, Brashear, and Fincher returned to Collins's apartment after the robbery.Collins told them that John “had let five dudes in the house” and was responsible for the robbery.Fincher told Collins that he was “going to take care of” John or “going to get” John.Simone Courtney heard Fincher say that he had a bullet with John's name on it to go in John's head.

On December 30, 2008, several people were at Collins's apartment, including Simone Courtney and Fincher.Simone Courtney saw that Fincher had a “black 40” gun.Collins needed assistance with a jack for her car, and after locating a jack, Fincher walked it down to her car.Collins went into her bedroom and looked out the window to watch Fincher.He put the jack down by the tire, took a gun out of his pants, and put the gun in the back seat of Collins's car.Collins then saw a white car, which she recognized as one that John had previously driven, pull into the apartment parking lot.She saw Fincher grab the gun out of the seat, aim for the car, and fire.After Fincher fired, the white car crashed into the side of Collins's apartment building.

Collins ran into the living room and told everyone to go out the front door.Collins was leaving by the back door when Fincher ran up the back stairs.He told Collins, “I shot him” or “I got him.”Collins told Fincher that he needed to leave.Fincher ran away, wearing a red hoodie.

Collins went down to the parking lot and saw Ryan Onckelet's girlfriend “freaking out.”Collins looked into the white car and saw Onckelet was bleeding and not breathing.Collins called the police.

Kansas City, Missouri, police officer Michael Buckley received a dispatch regarding a shooting at 116 North Belmont Avenue.When he arrived, he found Onckelet slumped over in the driver's seat of a white Saturn.Paramedics attempted to assist Onckelet, but he was pronounced dead at the scene.In the middle of the apartment complex parking lot, a crime scene technician located a fired cartridge casing, with the letters J–E–R–E–M written in black marker on the casing.She observed that the victim had an apparent bullet hole to the base of the left side of his skull and that there was blood in the right rear floorboard behind the passenger seat.

The deputy medical examiner who performed the autopsy on Onckelet determined that Onckelet had been shot in the head from a distance of approximately three feet or more and that the gunshot wound caused Onckelet's death.

Simone Courtney went to Ralph Brashear's house after the shooting.She called Fincher to pick her up and take her home.On the way to Courtney's house, Fincher stopped, got out of the van, and burned the red hooded jacket he had been wearing prior to the shooting.When they arrived, Fincher and the other people with him, went inside.Simone Courtney heard Fincher tell them that “he shot the kid.It wasn't supposed to be that kid that he shot.It was supposed to be for Jeremy [John], but he deserved it.He shouldn't have been in the way.”Fincher then had everyone, except Simone Courtney's mother, go into Simone Courtney's bedroom.He told them: “[Y]es, I'm the one that shot him and I swear to God—I swear to God that no one better not talk.They better not snitch because I'll kill anyone.I don't care.”

Later that night, around midnight, Fincher and several other people drove to a gas station.Antonio Love saw Fincher point the “murder weapon” at two men who had refused to leave after the owner of the station told them to get off his property.Some patrolling police officers observed a disturbance in the gas station parking lot and pulled into the station.One of the officers observed an individual inside the van pointing a gun at the two men.Fincher slid the gun under the seat toward the back of the van.The officers had all of the occupants of the van exit the vehicle.The officers searched the van and found a .40 caliber semi-automatic handgun with seven live rounds lying underneath the rear passenger seat on the driver's side.The officers released the individuals at the scene.

Subsequent analysis of the shell casing recovered at the scene of Onckelet's homicide by the Kansas City police crime laboratory revealed that it had been fired from the firearm found in the van.However, no latent fingerprints of value for identification could be developed from the gun.

On January 5, 2009, Kansas City, Missouri, homicide Detective Venasa Ray interviewed Fincher in connection with her investigation of Onckelet's death.Detective Ray asked Fincher if he was present during the residential robbery.Fincher stated that he had left Collins's residence just prior to the robbery.When he came back, he saw Jeremy John and three masked individuals running from the apartment.When Fincher told the detective that he believed John was responsible for the robbery, she observed that he was visibly angry and agitated.When Detective Ray asked Fincher about the shooting, he told her that he was alone in the parking lot at the time of the shooting when “he heard the shot and a loud boom and heard a woman screaming somebody had been shot.”He said he then “ran back upstairs to the apartment and told everybody to leave because somebody had gotten shot.”Detective Ray asked Fincher why he left the scene prior to the police arriving; he stated “he did not like the police and he had warrants.”Fincher told the detective that he was wearing a long-sleeve T-shirt while he was in the parking lot and asked to borrow Antonio Love's hooded jacket.After fleeing the scene, Fincher said he and another individual went to two different houses looking for friends, and they finally went to 3301 Spruce where they stayed the rest of the night.

When Detective Ray questioned Fincher about the incident at the gas station, he said that he“forgot” about the incident.He stated that he and his friends were riding around in the van when they were stopped by the police and that the police located a handgun in the van.Fincher stated that he did not know who owned the handgun.Officer Ray then advised Fincher that he had been identified as the shooter.According to Officer Ray, “Fincher said he didn't do it, and shortly after that, he quit talking.”

The State subsequently obtained an indictment charging Fincher with murder in the first degree, § 565.020, and armed criminal action, § 571.015.At trial, after the State presented its case-in-chief, the defense rested without presenting any evidence.Fincher moved for a judgment of acquittal at the close of the State's evidence and at the close of all the evidence; both motions were denied by the trial court.The jury deliberated and found Fincher guilty as charged.Fincher moved for a judgment of acquittal or, in the alternative, for a new trial; the trial court denied the motion.The trial court sentenced Fincher to life imprisonment without parole on the murder count and twenty years imprisonment on the armed criminal action count, to be served concurrently.

Fincher appeals.

Point I

In his first point, Fincher contends that the trial court plainly erred in failing to declare a mistrial sua sponte when Detective Ray testified that, during her interview of Fincher, when she advised Fincher that he had been identified as the shooter, “Fincher said he didn't do it, and shortly after that, he quit talking.”On appeal, Fincher argues that this testimony constituted a comment on Fincher's post- Miranda silence and violated the holding of Doyle v. Ohio,426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91(1976).However, Fincher did not object to this testimony at trial.

Standard of Review

Rule 30.20 authorizes us to consider, in our discretion, “plain errors affecting substantial rights” when we find “that manifest injustice or miscarriage of justice has resulted therefrom.”“The ‘plain error’ rule should...