State v. Gray

CourtUnited States State Supreme Court of Missouri
Citation887 S.W.2d 369
Docket NumberNo. 75496,75496
PartiesSTATE of Missouri, Respondent, v. Marlin GRAY, Appellant.
Decision Date25 October 1994

Page 369

887 S.W.2d 369
STATE of Missouri, Respondent,
Marlin GRAY, Appellant.
No. 75496.
Supreme Court of Missouri,
En Banc.
Oct. 25, 1994.
As Modified on Denial of Rehearing
Nov. 22, 1994.

Page 373

Mark Mittleman, Lawrence J. Fleming, Sp. Public Defenders, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Page 374


Because of his complicity in the deaths of Robin and Julie Kerry, defendant Marlin Gray was convicted of first degree murder and sentenced to death. § 565.020. 1 Following the convictions, a motion for post-conviction relief was filed, heard and denied. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. The judgments are affirmed.


The first issue in this case has to do with the sufficiency of the evidence to support a conclusion that defendant knowingly caused the death of Julie or Robin Kerry after deliberation. The evidence is viewed in a light most favorable to the verdict, affording the state all reasonable favorable inferences and ignoring contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

Twenty-year-old Julie Kerry and her sister, nineteen-year-old Robin Kerry, made arrangements with their nineteen-year-old cousin, Thomas Cummins, to meet them shortly before midnight on April 4, 1991. Cummins, who was visiting at his grandparents' home in St. Louis, sneaked away shortly before midnight to meet the girls at a prearranged location. The Kerry sisters were intent on showing Cummins a graffiti poem the girls had painted on the Chain of Rocks bridge. The Chain of Rocks bridge had been abandoned some years earlier. It spans the Mississippi River at St. Louis and has been a site of drinking and partying by trespassers since its abandonment. The three arrived at the bridge, climbed through an opening in the fence, and went onto the Missouri side of the bridge.

Earlier that same evening, defendant Marlin Gray, Reginald (Reggie) Clemons, Antonio (Tony) Richardson and Daniel Winfrey met at the home of a mutual friend in St. Louis. The latter two individuals were juveniles, being sixteen and fifteen years old respectively. Defendant was the oldest and largest of the group. At defendant's suggestion, the four left for the Chain of Rocks bridge to "smoke a joint" that defendant had acquired from someone at the house where the four met. The defendant's group had been at the bridge sometime before the Kerry sisters and Cummins arrived.

As the two victims and their cousin were walking toward the Illinois side of the bridge, they encountered defendant and his three companions. After a brief exchange of greetings, Winfrey asked for cigarettes, which were supplied by one of the Kerry sisters. As he had done earlier for his cohorts, defendant demonstrated to Cummins and the girls how to climb down a manhole on the deck of the bridge to a metal platform which leads to a concrete pier that supports the bridge. Defendant told Cummins the platform was a good place to be "alone with your woman." The two groups then separated, with the Kerrys and Cummins walking eastward toward Illinois and the defendant's group walking toward Missouri.

While walking away, Clemons suggested that they rob Cummins and the Kerrys. Defendant smiled, clapped his hands, and replied, "Yeah, I feel like hurting somebody." The four then turned and began walking back toward the east end of the bridge. While walking, Clemons and defendant engaged in some conversation. When defendant handed Winfrey a condom, he responded to the implication by saying he "wasn't going to do anything." At that point, defendant and Clemons pushed Winfrey against the bridge railing and said, "You're gonna do it." Winfrey then agreed to "do it."

The defendant's group continued walking toward the Illinois side and again came upon the Kerrys and Cummins. The girls were watching a campfire that had been built by someone on the Illinois side of the river. Richardson went to the side of the bridge and yelled something at the people by the campfire. At that point, the Kerrys and Cummins began walking back toward the Missouri side of the bridge. The defendant and his three associates followed at a close distance.

As the group passed a bend in the bridge, defendant, on a prearranged signal, put his

Page 375

arm around Cummins and walked him back ten to fifteen feet telling him, "This is a robbery. Get down on the ground." Cummins complied. Defendant told Cummins that if he looked up, defendant would kill or shoot Cummins. At the same time, Clemons, Winfrey and Richardson grabbed Julie and Robin Kerry. The girls screamed. One of the assailants said, "[D]o you want to die?" and ordered the girls to stop screaming or the speaker would "throw you off this bridge." This statement, if not made by defendant, was made within earshot of defendant. Winfrey held Robin Kerry on the ground, covering her face with her coat. Clemons ripped off Julie Kerry's clothing and raped her as she was held by Richardson. At some point, while Julie and Robin were being raped by Clemons and Richardson, defendant went to Cummins, who was still lying face down on the ground. Defendant stated, "I've never had the privilege of popping somebody ... if you put your head up or try to look, I'm going to pop you." Defendant then went to where Winfrey was holding Robin Kerry on the ground. Defendant told Winfrey to watch Cummins. Then, with the assistance of Clemons, defendant tore off Robin Kerry's clothing and raped her. Clemons then forced Cummins to surrender his wallet, wristwatch, some cash and keys. Clemons apparently became agitated upon finding Cummins firefighter's badge, thinking he might be a police officer. One of the assailants then forced Cummins to get up and, while holding Cummins' head down so he could not see who it was, walked him a short distance on the bridge and made him lie down again. There defendant and Winfrey warned Cummins not to talk to police. One of them showed Cummins his driver's license and said, "We know who you are and if you tell anybody, we're going to come and get you." Cummins heard two voices discussing whether he would live or die.

While defendant was in the act of raping Robin Kerry, Richardson forced Julie Kerry into the manhole and followed her. When defendant finished, he went to Winfrey, who was still watching Cummins, and asked where Richardson had gone. Winfrey pointed toward the Missouri side of the river. Defendant then ran off toward the Missouri side in search of Richardson and Julie Kerry, running past the manhole. According to defendant, he thought Richardson had taken her "to the end of the bridge, where he could take her by the river and maybe drown her or somethin'."

Clemons, after completing his rape of Robin Kerry, forced her down the same manhole where Richardson had taken Julie. Clemons then returned to Cummins and, putting Cummins' coat over his head, forced him down the same manhole where Richardson and the two girls were located. Clemons then followed, as did Winfrey. However, Winfrey was told by Clemons to go find the defendant, which he did.

Clemons ordered Cummins and the Kerry sisters to step out onto the concrete pier below the metal platform. The three were told not to touch each other. Julie Kerry and then Robin were pushed from the pier of the bridge, falling a distance of fifty to seventy feet to the water. Cummins was then told to jump. Believing his chances of survival were better if he jumped instead of being pushed, he jumped from the bridge.

Meanwhile, Winfrey caught up with defendant. The two were returning back onto the bridge and were near a rock pile at the entrance of the bridge when they were met by Clemons and Richardson. Clemons said, "We threw them off. Let's go." The group ran to their car, drove to a gas station in Alton, Illinois, and bought food and cigarettes with the money they had taken from the victims. The group then drove to an observation point over the Mississippi River called the Chair, where they sat and watched the river. While there, Clemons remarked, "They'll never make it to shore." Defendant praised Richardson for being "brave" to push the Kerry sisters off the bridge.

Later, in police custody, defendant admitted to participating in raping both of the girls but denied that he had been involved in the murders. His tape recorded statement, although he claims it was obtained by police coercion, was admitted in evidence and was consistent in most essentials with the above statement of facts.

Page 376

Although Cummins survived and testified at trial, Julie and Robin Kerry were killed. The body of Robin Kerry was never recovered. Julie Kerry's body was found three weeks later in the Mississippi River by the sheriff of Pemiscot County, Missouri.


The defendant argues that the above evidence is insufficient to demonstrate that defendant knowingly caused or acted with others to cause the death of Julie or Robin Kerry after deliberation. "Deliberation" means cool reflection for any length of time, no matter how brief. § 565.002(3). Thus, in order to convict, there must be some evidence that defendant made a decision to kill the victims prior to the murder. State v. O'Brien, 857 S.W.2d 212, 218 (Mo. banc 1993).

The state responds by arguing that defendant's participation in planning to commit the crimes of robbery and rape together with the threats to kill the victims that were made either by defendant or in his presence in the course of the rape and robbery, and defendant's statement after the killing that those who did the acts were "brave" are sufficient facts to infer that the defendant deliberated on the killing of Robin and Julie Kerry. Deliberation may be inferred from the acts of forcing the victims into the manhole, off the metal platform onto the concrete pier and then pushing the two victims from the pier. If defendant...

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