State v. Griffin, 63315
| Decision Date | 20 December 1983 |
| Docket Number | No. 63315,63315 |
| Citation | 662 S.W.2d 854 |
| Parties | STATE of Missouri, Respondent, v. Larry GRIFFIN, Appellant. |
| Court | Missouri Supreme Court |
Frederick M. Steiger, St. Louis, for respondent.
John C. Reed, Asst. Atty. Gen., Jefferson City, for appellant.
Defendant Larry Griffin, 26 years old at the time of trial, was convicted of the capital murder of Quintin Moss by a jury in the Circuit Court of the City of St. Louis and sentenced to death. He seeks reversal, contending there was prejudicial error in the court's instructions to the jury and in admitting certain evidence in the guilt phase of his trial. He also avers prejudicial error was committed in the reception of other evidence at the penalty stage of the trial and that the death penalty violates the Federal Constitution. We affirm.
Although defendant does not directly attack the sufficiency of the evidence to support his conviction, we think it helpful in considering his several points to set forth in some detail the facts and reasonable inferences arising therefrom which the jury could reasonably have found in arriving at their verdict, ignoring contrary evidence and inferences. State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).
Quintin Moss, a 19-year-old black male, lived with his parents in St. Louis. The record in this case leaves little room for doubt that he was involved in the illicit trafficking of drugs and that he plied his illegal trade near the intersection of Sarah and Olive Streets in St. Louis, six blocks from his parent's place of abode.
Defendant, a black male, was the brother of Dennis Griffin. Reginald Griffin was a nephew of defendant and Dennis. Prior to the killing of Quintin Moss, the defendant and Reginald lived together with defendant's sister.
In the early hours of January 2, 1980, Quintin Moss and Dennis Griffin arrived at the Moss apartment, awaking Mr. and Mrs. Moss by knocking on the door and ringing the doorbell. Following an argument between Quintin and his father, the latter objecting to his son's bringing "that kind of person home with him", Dennis departed the premises. A short time later he was killed in an alley behind the Moss apartment. About a week later Quintin Moss was arrested for this killing but subsequently released by the authorities. Thereafter, according to Mrs. Moss, she was the recipient of telephoned threats against her son's life because of the killing of Dennis Griffin. She opined the unidentified telephone caller was a "black male".
May 13, 1980: At about 2:00 or 2:15 in the afternoon, Quintin Moss and Robert Campbell, a black male, were together near the intersection of Sarah and Olive Streets. About 2:30 p.m. a black over brown older model Cadillac automobile, occupied by two black males, drove up and stopped. One of the occupants stepped out of the vehicle and fired four or five pistol shots in the direction of Quinton Moss and Robert Campbell, one bullet striking and wounding Campbell. The Cadillac, containing the two unidentified black males, then sped away. A short time later Quintin Moss was seen beneath his bicycle at the scene of the shooting.
Mrs. Moss was at her home when she saw her son ride up on his bicycle. Quintin was visibly disturbed and upset and exclaimed he had just been shot at and showed her a dent on his new bicycle. He asked his mother to take him back to the scene of the shooting and she did so.
At about 3:00 p.m., a police officer saw defendant and Reginald Griffin in a black over brown 1968 Cadillac automobile about three miles from the shooting scene. Reginald was driving the vehicle. When the officer, driving an unmarked police car, pulled up along side the Cadillac and displayed his badge, the Cadillac accelerated and drove away. A chase ensued for some distance before the police officer's car and another detective's car forced the Cadillac to a stop. Reginald Griffin was arrested for multiple traffic violations. No weapons were found.
June 26, 1980: Officer Jones, off duty at the time, was driving past 3656 Cook Street at about 4:00 p.m. He saw three black males near the house. He recognized defendant ("known to be a police character"), a second person wearing a red and white baseball cap, and a third person carrying what appeared to the officer to be a shotgun. Because of heavy traffic, Officer Jones was delayed in circling the block to investigate what he had observed. By the time he returned, the three men had disappeared.
State's witness Robert Fitzgerald, a white male, was standing beside his car at about 4:30 p.m. near the intersections of Sarah and Olive Streets while two other men were attempting to repair it. Fitzgerald had earlier observed Quintin Moss in the vicinity and concluded Moss was engaged in selling narcotics. Moss was standing on the sidewalk near Fitzgerald's car when Fitzgerald saw a faded blue 1967 or 1968 Chevrolet drive up and stop behind his car. There were two black males in the front seat and a third in the rear seat. There was a burst of gunfire from the Chevrolet and Fitzgerald saw the defendant firing a pistol through the open window of the passenger side of the front seat of the car. The person in the rear seat was firing a semi-automatic rifle. The direction of the shots was towards Moss and he was struck 13 times by bullets. A passerby, Wallace Connors, was struck in the buttocks by one of the bullets. Fitzgerald had an unobstructed view of the defendant throughout the shooting and as the Chevrolet drove away. Fitzgerald saw the license plate on the rear of the car and memorized the number. He provided this information to the police and accompanied the officers to the police station where he identified defendant from a group of photographs as being the person firing the pistol from the front seat of the Chevrolet. A short time later Fitzgerald identified the Chevrolet as the vehicle which had been at the scene of the killing.
The 1968 Chevrolet was parked behind an apartment building and was unoccupied. In the vehicle the officers found a .30 caliber semi-automatic rifle, which contained a clip containing seven live rounds of ammunition, empty rifle shell casings, a .38 caliber revolver, a red and white baseball cap, and a court receipt bearing the name "Reginald Griffin". When fully loaded the clip for the carbine would hold 31 rounds of ammunition. There was expert testimony that a bullet fragment found at the scene of the killing of Quintin Moss had been fired by the carbine, which Officer Jones testified was similar in appearance to the firearm one of the black males was carrying at the Cook Street address about 4:00 p.m. Officer Jones also testified the red and white cap was similar to the one he saw being worn by one of the two unidentified black males earlier. A .38 caliber bullet fragment found at the shooting scene was of the same general classification of the revolver found in the Chevrolet. Fitzgerald testified this revolver was similar to the one he saw defendant firing at Moss.
Defendant first asserts 1 that "the trial court committed prejudicial error in not properly instructing the jury regarding the proof required to find defendant guilty as a coparticipant in the charged events because the verdict director instruction failed to conform to the required MAI-CR 2d form in that the first paragraph of the verdict director instruction contained language significantly different than that prescribed in MAI-CR 2d 2.12."
Instruction No. 6 reads as follows:
then you are instructed that the offense of capital murder was committed, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that in the commission of such offense the defendant acted with such other person with the purpose of committing that offense,
then you will find the defendant guilty of capital murder.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense."
This case was tried in June 1981. Instruction No. 6 should have been in the form prescribed in MAI-CR 2d 2.12, effective January 1, 1979. However, the giving of Instruction No. 6 by the trial court was not prejudicial error. Instruction No. 6 followed the MAI-CR 2d 2.12 form adopted by Order of this Court entered April 14, 1981. That Order provided that the form adopted on said date "must be used on and after January 1, 1982, and may be used prior thereto and any such use will not be presumed to be in error."
Defendant next contends that "the trial court committed prejudicial error in refusing to give MAI-CR 2d 3.42 the circumstantial evidence instruction as requested by defense counsel because said instruction was appropriate in defendant's case and proper under the applicable case law and MAI Notes on Use in that the bulk of the evidence presented at trial was circumstantial and much of the evidence was of a conflicting and inconsistent nature and MAI-CR 2d 3.42 would greatly have aided the jury in properly evaluating the evidence." Defendant concedes that both direct and circumstantial evidence were presented. "Where the evidence, as here, is partially direct and partially circumstantial, it is not necessary to...
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