State v. Gill

• Decision Date: 02 August 2005
• Docket Number: No. SC 85955.,SC 85955.
• Citation: 167 S.W.3d 184
• Parties: STATE of Missouri, Respondent, v. Mark Anthony GILL, Appellant.
• Court: Missouri Supreme Court

Page 184

167 S.W.3d 184

STATE of Missouri, Respondent, v. Mark Anthony GILL, Appellant.

No. SC 85955.

Supreme Court of Missouri, En Banc.

July 12, 2005.

Rehearing Denied August 2, 2005.

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Deborah B. Wafer, Office of the Public Defender, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Erwin O. Switzer, III, Assistant Atty. Gen., Jefferson City, for Respondent.

STEPHEN N. LIMBAUGH, JR., Judge.

A New Madrid County jury convicted Mark A. Gill of first-degree murder, armed criminal action, kidnapping, first-degree robbery, and first-degree tampering. Gill was sentenced to death on the murder count, life imprisonment on the robbery count, and consecutive sentences of thirty years imprisonment on the armed criminal action count, fifteen years on the kidnapping count, and seven years on the tampering count. Because the death penalty was imposed, this Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. The judgment is affirmed.

I. Facts

The facts, which this Court reviews in the light most favorable to the verdict, State v. Christeson, 50 S.W.3d 251, 257 (Mo. banc 2001), are as follows:

The victim, Ralph Lee Lape, Jr., lived alone in rural Cape Girardeau County. During the summer of 2002, Mr. Lape allowed Gill to live in a camper trailer on his property as a favor to a mutual friend. Mr. Lape spent the Fourth of July holiday weekend at Kentucky Lake, while Gill and a friend, Justin Brown, remained at Mr. Lape's home. During this time, Brown looked through Mr. Lape's personal papers and learned that he had a large amount of money in his bank account. Brown and Gill decided that they would kill Mr. Lape for his money, and on Saturday, July 6, they began preparations for the killing. They obtained a .22 pistol from Mr. Lape's home and bought a roll of duct tape, and they decided to "get him" in the garage because "once you pull in the garage can't nobody see."

Mr. Lape arrived home from Kentucky Lake on Sunday, July 7, at approximately 5:30 p.m. Gill and Brown, who were waiting in the garage, opened the garage door for him. After Mr. Lape stepped out of his extended cab pickup truck, Gill and Brown "grabbed him," and Gill told Mr. Lape that they "just wanted his money." Mr. Lape pleaded to Gill, "You don't have to do this . . . I'll give you what you want. Mark, I ain't done nothing but try to help you." Gill and Brown then bound Mr. Lape with plastic ties and the duct tape. They pushed up the backseat of Mr. Lape's truck and "slid him in." They divided $240 they found in a ziplock bag that Mr. Lape had been carrying. Gill then put shovels in the back of the truck because he "knew what [he] was fixin' to do, [he] was going to hell."

Gill drove the truck south on Interstate 55 as Brown held Mr. Lape down on the floorboard. After finding Mr. Lape's ATM bankcard in the truck, Gill asked him for the pin number, and he told them the number "right off." Gill and Brown drove Mr. Lape approximately 80 miles to a desolate cornfield near Portageville, where they took turns "knocking down corn" and "digging a hole." While one of them dug the hole, the other sat in the truck and watched Mr. Lape. After digging the hole, they took Mr. Lape out of the truck and removed the duct tape and plastic ties. Ignoring Mr. Lape's pleas for mercy, Gill and Brown pushed him into the hole. Then one of them pointed the .22 pistol at Mr. Lape and pulled the trigger, but the gun misfired. The trigger was pulled a second time, but there was another misfire. On the third try, the gun fired and shot Mr. Lape in the forehead, killing him. Gill and Brown then "lined him up in the hole" and removed all of his clothing and jewelry. Before they buried Mr. Lape, Brown "stepped on his head" in order to make it fit in the hole. An autopsy revealed that, in addition to the gunshot wound, Mr. Lape had a skull fracture that was "not caused by the bullet," three separate bruises on his head, bruising in his chest, and one of his ribs was completely broken in two.

After killing Mr. Lape, Gill and Brown changed clothes back at the house and withdrew money from Mr. Lape's bank account with his ATM card. They then drove to St. Louis, withdrew more money, and spent nearly a thousand dollars of the money at strip clubs. After spending the night at the Adam's Mark hotel in St. Louis, Gill and Brown drove back to Mr. Lape's house, stopping along the way to withdraw more money from Mr. Lape's bank account.

Once at the house, Gill and Brown began to dispose of the evidence. They dumped the shovels in a wooded area and burned their clothing and the clothing they had removed from Mr. Lape's body. They threw the gun, Mr. Lape's jewelry, and other evidence that would not burn into the Mississippi River. Then they drove to Paducah, Kentucky, abandoned Mr. Lape's truck in a hospital parking lot, and returned to Mr. Lape's house. When Mr. Lape's family members inquired about his whereabouts, Gill and Brown told them that he was at Kentucky Lake.

Having withdrawn nearly all of the money from Mr. Lape's bank account that was accessible with an ATM card, Gill and Brown used Mr. Lape's computer to transfer $55,000 from another account to the ATM-accessible account. After a friend told Gill that there is no limit in Las Vegas on the amount of money that can be withdrawn from an ATM, Gill and his girlfriend drove there and were married. Gill withdrew approximately $1,600 from Mr. Lape's account while on the trip.

Ultimately, Gill was arrested in New Mexico. He initially denied any involvement in Mr. Lape's disappearance and claimed he had permission to use the ATM card. However, he later confessed to planning and participating in the murder, but claimed it was Brown who shot Mr. Lape.

II. Murder Verdict Directors

Gill's primary argument is that the trial court erred in submitting Instructions 8 and 11, the verdict directors for first and second-degree murder, because they attributed the conduct elements of shooting Mr. Lape in the disjunctive to either Gill or Brown. He alleges that the jury should have been instructed that it had to find beyond a reasonable doubt that Brown was the shooter, with no reference to the possibility that Gill was the shooter because, according to Gill, there was no evidence that Gill was the shooter. This Court disagrees.

Instruction 8, the verdict director for first-degree murder, provided in pertinent part:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First that on or about July 7, 2002, the defendant or Justin M. Brown caused the death of Ralph L. Lape, Jr., by shooting him, and

Second that defendant was aware that his or Justin M. Brown's conduct was practically certain to cause the death of Ralph L. Lape, Jr., and

Third, that beginning in Cape Girardeau County, Missouri, and ending in New Madrid County, Missouri, the defendant or Justin M. Brown caused the death of Ralph L. Lape, Jr. 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 death of Ralph L. Lape, Jr., the defendant acted together with or aided Justin M. Brown in causing the death of Ralph L. Lape, Jr., and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,

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

(emphasis added). The pertinent portions of this instruction are identical to Instruction 11, the verdict director for second-degree murder.

"Whenever there is an MAI-CR instruction applicable under the law and Notes on Use, the MAI-CR instruction is to be given to the exclusion of any other instruction." State v. Ervin, 835 S.W.2d 905, 922-23 (Mo. banc 1992). This instruction was based upon MAI-CR3d 304.04, Note on Use 5(c), which is to be used "[w]here the evidence is not clear or conflicts as to which person (in a group including the defendant) engaged in the conduct constituting the offense." In such situations, Note 5(c) instructs the court to ascribe the conduct elements "to the defendant or the other person."

Gill contends that the court should have used instead the language from Note 5(a), which provides that "[w]here the evidence shows the conduct elements of the offense were committed entirely by someone other than the defendant and the sole basis for defendant's liability is his aiding the other person. . . all of the elements of the offense . . . should be ascribed to the other person or persons and not to the defendant." Gill claims that "the only evidence of who shot Ralph Lape" came from his confessions, which "unequivocally stated that Justin Brown shot Ralph Lape." Because there was no evidence that he was the shooter, Gill argues, the verdict director should have named Brown as the shooter, rather than stating that "the defendant or Justin M. Brown" shot Mr. Lape.

This Court rejected a similar argument in State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989), and affirmed the use of a disjunctive instruction because the evidence was unclear as to whether it was the defendant or her accomplice who killed the victims. In that case, the defendant and her accomplice were the last people in the victims' house while they were alive. The defendant admitted that she held a gun on the victims, got rope to bind them, and carried...