State v. Gardner, 120799

• Citation: 8 S.W.3d 66
• Parties: (Mo.banc 1999) . State of Missouri, Respondent, v. Jeffrey W. Gardner, Appellant. Case Number: SC81611 Supreme Court of Missouri Handdown Date:
• Decision Date: 07 December 1999
• Court: United States State Supreme Court of Missouri

8 S.W.3d 66 (Mo.banc 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Jeffrey W. Gardner, Appellant.

Case Number: SC81611

Supreme Court of Missouri

Handdown Date: 12/07/99

Appeal From: Circuit Court of Cass County, Hon. Joseph P. Dandurand

Counsel for Appellant: Kent E. Gipson

Counsel for Respondent: Philip M. Koppe

Opinion Summary:

Jeffrey Gardner shot and killed Carol Drummond's husband. Gardner claimed the husband was wielding a knife and making threats. A grand jury returned a "no true bill." Four years later, a prosecutor charged Gardner with voluntary manslaughter, but the statute of limitations had run, so the prosecutor increased the charge to second degree murder. The jury convicted Gardner. He appealed.

AFFIRMED.

Court en banc holds:

(1) Gardner has not presented evidence that the prosecutor upgraded the charge to punish Gardner for invoking the statute of limitations. Because voluntary manslaughter was no longer an option, the state charged an offense covering Gardner's conduct, which fit the statutory definition of second degree murder. Gardner failed to show any reasonable likelihood of prosecutorial vindictiveness.

(2) In Missouri, if a witness is sworn and gives some evidence, however formal or unimportant, the witness may be cross-examined as to all matters in the case. The defense called Drummond who stated her name, the length of time she had been at court, and that the prosecutor subpoenaed her. Because this was some evidence, the state was entitled to cross-examine her. Section 491.070 authorizes examination on the entire case.

(3) The defense called Drummond, and the state cross-examined her. Because she was the defendant's witness, the state could present evidence--six witnesses--to rebut her testimony.

(4) Gardner made an offer of proof that a gun had been discharged in the room before the victim was killed, to rebut inferences from finding bullets under the body. The offer of proof was vague and inconclusive as to the testimony itself. Gardner did not carry his burden that the witness would testify to facts that would counteract any unfavorable inferences.

(5) The lesser included offense of voluntary manslaughter incorrectly listed the range of punishment, and Gardner reasons that the jury would have convicted him of voluntary manslaughter if the sentence were 5 to 15 years. The jury was instructed properly on second-degree murder's punishment--10 to 30 years. The jury chose 20 years. This option is not within the range of punishment for voluntary manslaughter.

(6) Amid deliberations, the judge recalled the jury and read a corrected instruction, inserting the paragraphs and definition regarding sudden passion in the second degree murder verdict director. The judge's corrective action cured any prejudice.

Opinion Author: Duane Benton, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

Opinion modified by Court's own motion on January 11, 2000. This substitution does not constitute a new opinion.

Defendant Jeffrey W. Gardner was convicted by a jury of second-degree murder, and sentenced to 20 years' imprisonment. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const., art. V, sec. 10. Affirmed.

I.

Defendant lived with Phillip Hancock and Carol Drummond, a married couple, and their daughter. On March 7, 1992, defendant shot and killed Hancock. The State presented the case to a grand jury, which returned a "no true bill." Four years later, a newly elected prosecuting attorney charged defendant with voluntary manslaughter. Because of the three-year statute of limitations on voluntary manslaughter, the State amended the complaint to second-degree murder.

In November 1991, Drummond asked Mark Lassince to shoot her husband while they were deer hunting, and make it look like an accident.

In December 1991, Hancock pushed Drummond, breaking her collar bone. Defendant witnessed the incident. Hancock pled guilty to assault, received probation, and was subject to an order of protection. In January 1992, however, Hancock moved back into the house, at Drummond's request.

Sometime in January 1992, Drummond told Phillip Gill that her husband was not going to get away with breaking her collar bone, "If we have to, we're going to blow his fucking head off, put a gun or knife in his hand where it looks like self defense where we were being threatened, and call 911."

One week before the shooting, Drummond talked with Andre Lassince about self-defense statutes and said that Hancock was being abusive. Drummond asked if he would still be her friend if she killed Hancock in self-defense.

On March, 6, 1992, Drummond told her sister, Carla Corum, that she was planning to kill her husband and asked Corum to baby-sit her daughter while she committed the crime. Corum added that she did not believe Drummond was serious.

The next day, March 7, 1992, Drummond paged defendant, indicating she was in trouble. Defendant drove to her house, although he stopped to buy cigarettes on the way. Arriving, he found Drummond outside with her daughter and a neighbor. Drummond told defendant that Hancock was upset because someone said something about the relationship between Drummond and defendant. After discussions at the neighbor's house, Drummond and defendant decided that she would return home to talk to Hancock. According to defendant, they agreed that defendant would move out; he returned to the house to pack his clothes. (During questioning by the police, however, defendant did not say that he had decided to move out or pack his clothes.)

Defendant claimed that, once in the house, he heard Drummond ask Hancock "What are you going to do with the knife," and Hancock threaten to "field-dress" her like a deer. Defendant testified that he felt that there was a threat to Drummond's life, and that he could not just stand by and "see what happened next." Defendant went to his bedroom to get his handgun.

Defendant testified that, approaching the master bedroom, he saw Hancock standing at the foot of the bed flailing a knife around in his hand. Defendant said that Hancock's eyes were bloodshot, and he continued to yell at Drummond. Defendant claimed that as he stood in the doorway, Hancock said, "[Y]ou better stay out of this or I'm going to kill you, too." According to defendant, Hancock was 12 to 13 feet away from him. Defendant said something about calling the police, and then Hancock started moving toward him.

Defendant testified that he raised the gun, cocked it, pointed it at Hancock, and said, "This is not -- not a good idea." Defendant claimed he shot one round, but could not remember it because of the adrenaline rush. According to defendant, Hancock kept advancing and defendant fired off two or three more rounds.

Defendant continued firing until the gun jammed. Defendant insisted that he did not fire after Hancock dropped the knife. Defendant said he turned around, walked away, and did not look at Hancock anymore.

Defendant admitted, however, that he may have fired a couple of shots into Hancock as he lay on the floor. Defendant said he then checked on Drummond, telling her to call 911. He next went to the kitchen and disassembled the gun. Defendant claims he sat on the couch and cried until he felt sick and went to the bathroom. Drummond then called 911, said there was a "party armed with a knife," but did not say anyone had been shot. When police arrived, Drummond told them that her husband had gone crazy and had a knife. Again, she did not mention he had been shot.

Discovering Hancock's body, the police asked Drummond who shot him. Pointing at defendant, Drummond said, "He did." Defendant responded, "I shot him." One police officer heard defendant say, "What was I supposed to do? He had a knife." The police found a knife on the bedroom floor, wrapped in a pair of men's undershorts.

Hancock was shot three times. John Cayton, a ballistics expert, testified that the wound to Hancock's back was consistent with the bullet shoring the skin as it exited against something hard. The other exit wound was irregularly shaped, with some tearing. Cayton concluded that Hancock may have been "just up off the floor" when the two shots were fired.

Two slugs were under Hancock's body. One was underneath his back. The other was lodged between the carpet and the concrete floor, near Hancock's head.

Defendant maintained that all the shots after the first one were accidental. Cayton testified that the gun required eight pounds of pressure to trigger each shot, more than twice the average single-action semi-automatic handgun. Defendant's gun was a 9-millimeter German Luger, World War II vintage, with a heavier trigger to prevent accidental discharge.

On March 12, 1992, while being interviewed by the police, Drummond told Detective Lance Cull that if her husband ever attacked her with a weapon, she would have blown his head off.

II.

Defendant asserts that the trial court should have sustained his motion to dismiss, due to prosecutorial vindictiveness. During informal conversations before trial, the State conceded that the statute of limitations for voluntary manslaughter had run, and requested defendant to waive the defense. Defendant refused. The State then upgraded the complaint to second-degree murder -- section 565.021.1.¹ Defendant then moved to dismiss, but was overruled. Defendant argues that the new prosecutor upgraded the charge from voluntary manslaughter to second-degree murder, in retaliation for defendant's (successful) statute of limitations defense.

A prosecutor has broad discretion whether to prosecute -- a decision seldom subject to judicial review. State v. Massey, 763 S.W.2d 181, 183 (Mo. App. 1988). A prosecutor does not have to file all possible charges in an initial indictment. Massey, at 183. A prosecutor may hold some charges in abeyance, for strategic use. Id.

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