State v. Harris

• Decision Date: 23 October 1989
• Docket Number: 16069,Nos. 15495,s. 15495
• Citation: State v. Harris, 781 S.W.2d 137 (Mo. App. 1989)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lisa HARRIS, Defendant-Appellant. Lisa HARRIS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 137

781 S.W.2d 137

STATE of Missouri, Plaintiff-Respondent, v. Lisa HARRIS, Defendant-Appellant.

Lisa HARRIS, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 15495, 16069.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 23, 1989.

Motion for Rehearing or to Transfer to

Supreme Court Denied Nov. 13, 1989.

Application to Transfer Denied Jan. 10, 1990.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Anne A. Hall, Public Defender, Springfield, for defendant-appellant-movant.

GREENE, Judge.

In these consolidated appeals, defendant, Lisa Harris, seeks to set aside the trial court's judgment affirming a jury verdict finding her guilty of murder in the first degree, § 565.020.1, ¹ for which crime she was sentenced to life imprisonment without parole.

In her direct appeal, Lisa claims the trial court erred by (1) refusing to instruct the jury on the crime of voluntary manslaughter, (2) failing to instruct as to whether her confession was voluntary, (3) overruling a motion to suppress her confession, (4) denying her attorney's motion for a continuance, and (5) refusing to let her witnesses testify concerning certain matters which Lisa contends would have been proof of Hill's reputation for being a violent and turbulent person.

In her motion filed under Rule 29.15 to vacate her conviction and sentence, Lisa contended she received ineffective assistance of trial counsel. The motion court, without evidentiary hearing, denied the motion on the ground that it was not timely filed. We affirm the trial court's judgment of conviction and sentence, and the motion court's denial of the motion to vacate.

Viewed in the light most favorable to uphold the judgment of conviction of the crime of first degree murder, the evidence adduced at trial was as follows. In the early morning hours of February 10, 1987, Lisa, her brother, Billy, Lisa's boyfriend, John Brian Stephens, her roommate, Jennifer Fair, and two friends, Scott Sanger and David Hight, drove to the home of the victim, John Hill, in Billy Harris' automobile, to "kick some ass" after an alleged sexual assault by Hill on Jennifer. Hill's residence was in Neosho, Newton County, Missouri. The girls were armed with a claw hammer, a club, and a knife. The girls entered the Hill residence, while the men waited outside. When the men heard one of the girls scream for help, they entered the house. When they did so, Sanger saw Lisa hit Hill in the head with the hammer at least five times, while Jennifer was beating Hill with the club. When Hill fell to his knees, Lisa said to him, " 'Yeah, John, you really fucked up this time, didn't you?' " She then kicked him in the abdomen and groin. Hill then dropped face down on the floor, at which time Lisa knelt beside him and stabbed him in the back a number of times with a "butterfly" knife she had brought to the crime scene. The group then left, taking with them Hill's bank card, which Billy Harris and Brian Stevens later attempted to use, a knife with a scabbard bearing Hill's initials, JFH, and a Colt Python .357 magnum revolver and holster that belonged to Hill.

An autopsy revealed that there were six "punched out" circular holes in Hill's head which passed through the skull and into the brain, all of which were consistent with injuries caused by a hammer, and any one of which would have caused the death. The autopsy also revealed Hill had five stab wounds in the back.

While investigating the murder, deputy sheriffs noticed that Lisa had what appeared to be blood on her shoes, and took her to the courthouse for questioning. She was informed of her constitutional rights, including her right to remain silent and her right to the services of an attorney, after which she gave a statement in which she admitted that she had hit Hill in the head with the hammer and stabbed him in the back with the knife. After Lisa was arrested and confined in jail, she made incriminating statements regarding her part in the killing to two other inmates and to a deputy sheriff. She later told sheriffs deputies that the weapons that were used in the killing were hidden in a nearby cave. The deputies went to the cave and found the hammer and the knife.

After Lisa was charged with the crime of first degree murder, the case was moved to Greene County on a change of venue after which, on October 9, 1987, a jury found her guilty of murder in the first degree. The trial court, on November 16, 1987, after overruling her motion for new trial, affirmed the jury verdict, and sentenced Lisa to life imprisonment without possibility of probation or parole.

On July 1, 1988, Lisa filed a motion in the Newton County Circuit Court seeking to vacate her conviction and sentence on the grounds of ineffective assistance of trial counsel. Lisa's court-appointed attorney, on October 4, 1988, filed an amended motion to vacate in the Circuit Court of Greene County, where the judgment of conviction and sentence was entered. The Greene County Circuit Court dismissed the motion to vacate for the reason that it was not timely filed. This order was appealed, and that appeal was consolidated with the direct appeal of the conviction and sentence.

Lisa's first point relied on is that the Greene County Circuit Court erred in dismissing her Rule 29.15 motion on the grounds that it was not timely filed. She admits that her motion was not timely filed, in that it had not been filed on or before June 30, 1988, as is required in cases where, as here, the defendant was sentenced on or before January 1, 1988, and had not previously filed a post-conviction remedy motion. Rule 29.15(m). Her attorney seeks to excuse the late filing by arguing that since Harris was only 17 years old at the time she filed the original post-conviction relief motion, had a limited education, and only minimal prior contacts with the legal system, her tardy filing should be excused. This is an appeal for sympathy, not for the application of legal logic.

In Day v. State, 770 S.W.2d 692 (Mo. banc 1989), which is a consolidation of ten post-conviction relief appeals, our Supreme Court pointed out that Rule 29.15(m) provides that if sentence was pronounced prior to January 1, 1988, the effective date of Rule 29.15 which provides the new method of review for post-conviction relief complaints, a post-conviction review motion under 29.15 may be filed in cases where no prior review has been requested, but that such motion must be filed on or before June 30, 1988, and failure to file on or before such date constitutes a complete waiver of a right to proceed under Rule 29.15. Id. at 694. At least six of the movants had been sentenced prior to January 1, 1988, and had not filed post-conviction relief motions until July 1, 1988 or later. Our Supreme Court held that the time limitations of Rule 29.15 and its sister rule 24.035 are valid and mandatory, and that the motion court's judgments that the motions filed on July 1, 1988 were not timely filed were not clearly erroneous. Id. 695, 696. The Supreme Court, based on such reasoning, affirmed the motion court's orders of dismissal in all of the cases. The factual situation here is exactly the same as that in Day. The point has no merit.

We now turn to the issues raised in the direct appeal.

In Lisa's second point relied on, she asserts the trial court erred in refusing to instruct the jury on the issue of voluntary manslaughter. She claims that she was entitled to such an instruction because there was evidence that she was defending herself from the aggression of Hill when she hit him with the hammer, which alleged fact supported the thesis that in order to justify a voluntary manslaughter submission, evidence of sudden passion arising from adequate cause must have been introduced.

The jury was instructed on the elements of first and second degree murder, and on the doctrine of self-defense. The trial judge refused to instruct on the elements of voluntary manslaughter because he did not believe that the evidence justified the submission of such a charge. We share that belief. Voluntary manslaughter is a lesser-included offense where the charge is murder in the first or second degree, but the trial court, even if requested to do so, is not obligated to give a lesser-included offense instruction unless there is a basis of acquitting the defendant of the offense charged and convicting him of the included offense. § 556.046.2.

Under § 565.023.1(1), a person commits the crime of voluntary manslaughter if he "[c]auses the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section 565.021, except that he caused the death under the influence of sudden passion arising from adequate cause...." Section 565.023.2, states that "[t]he defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of subsection 1 of this section."

Sudden passion is defined by § 565.002(7) as follows:

'Sudden passion' means passion directly caused by and arising, out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation....

Adequate cause is defined by § 565.002(1) as follows:

'Adequate cause' means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control....

The "provocation" referred to in the statute must be such that it renders the mind of the actor incapable of reflection and obscures his capacity to reason to such an extent as to indicate an absence of malice and premeditation on the part of the actor. State v. Lett, 715 S.W.2d 557, 560 (Mo.App.1986). There is no evidence in this case to support such a theory. There is no...