State v. Hill, ED74953
| Decision Date | 21 September 1999 |
| Docket Number | ED74953 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. State of Missouri, Respondent, v. Antoine Hill, Appellant. Case Number: 74953 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. Timothy J. Wilson
Counsel for Appellant: Nancy L. Vincent
Counsel for Respondent: Daniel W. Follett
Opinion Summary: Hill appeals sentences for voluntary manslaughter and armed criminal action.
AFFIRMED.
Division Four holds: (1) Hill was not entitled to an instruction on involuntary manslaughter as a lesser-included offense. Hill tried the case on a single theory of self-defense. The court submitted a self-defense instruction, which requires an intentional act, and thus would be inconsistent with an instruction for involuntary manslaughter, which requires a reckless act culminating in an unintended result. Hill's acknowledgement that he didn't mean for "it" to happen will not support a finding that he acted recklessly. (2) Closing argument about prior convictions was not an invitation to convict on present charges because of priors. It was a response to Hill's claim that he was not physically able to defend himself except by shooting an attacker. (3) Hill's unpreserved errors are not plain errors.
Opinion modified by Court's own motion on November 16, 1999. This substitution does not constitute a new opinion.
The state charged defendant with murder in the first degree and armed criminal action. The jury found defendant guilty of the included offense of voluntary manslaughter and armed criminal action. Defendant appeals consecutive sentences totaling seventeen years. We find defendant's two arguments of preserved error are without merit. We also find his three arguments of plain error are not sustainable because they will not support a finding of manifest injustice or miscarriage of justice.
Defendant testified he was the victim of an unprovoked assault by Kendrick Holmes in the bathroom of the Cut Above Lounge. Holmes was much larger than defendant and severely intoxicated. Defendant secured a .38 caliber revolver from his pocket and shot Holmes in the left temple. There was an eyewitness. Defendant stepped over the body, left the lounge and went to the parking lot. A security guard stopped defendant and another individual in the parking lot where they were pushing a truck. The security guard summoned the police. The revolver was never found.
Defendant also testified he initially told the police he had not shot Holmes. In addition to his oral statement, he gave a signed written statement and a video taped statement. The court permitted the state to show the video for the jury during cross-examination of defendant.
Defendant's first point argues the trial court erred in refusing to submit one of two verdict directing instructions which he tendered to submit the included offense of involuntary manslaughter. He contends his statements on the video would support a finding that he recklessly caused the death of Holmes. We do not have the video. However, the prosecutor asked, "in your video taped statement you said you didn't mean for it to happen?" He answered, "Yes, sir." During his live testimony defendant described the assault, which included an oral threat by Holmes, and movement of Holmes' hand which defendant concluded was an attempted robbery with a weapon. Defendant used his gun believing it was necessary to protect himself.
Involuntary manslaughter is a lesser-included offense of first degree murder. Section 565.025. A court must instruct on a lesser-included offense only if the evidence established a basis for acquittal of the greater offense and conviction of the lesser-included offense. Section 556.046.2 RSMo 1994; State v. Coleman, 949 S.W.2d 137, 142 (Mo. App. W.D. 1997). A defendant is entitled to a requested instruction which is supported by the evidence and any inferences which logically flow from the evidence. State v. Hopson, 891 S.W.2d 851, 853 (Mo. App. E.D. 1995). The court should submit a requested instruction, "if the evidence arguably shows lack of an essential element of the higher offense which would not only authorize acquittal of the higher, but sustain conviction of the lesser." State v. Israel, 872 S.W.2d 647, 649 (Mo. App. E.D. 1994).
For three reasons, we find no error in refusing the involuntary manslaughter instruction. First, defendant tried this case on a single theory of self-defense. In opening statement, defense counsel told the jury this case was about defendant's use of self-defense and deadly force in defense of himself. He also told the jury defendant would testify Holmes was larger and stronger, defendant was afraid for his life, he was afraid because of his medical condition, he was afraid because Holmes was drunk, he was afraid because Holmes was not rational and would not let him out of the bathroom, "and now being pushed and shoved and dragged back into the bathroom he does the only thing that he will tell you he could have done and that is to take the gun out of his pocket and to shoot because he was in fear of serious physical injury or of death from the acts of this irrational person." Voluntary manslaughter involves a knowing act under the influence of sudden passion arising from adequate cause which causes death. Section 565.023 RSMo 1994. Involuntary manslaughter involves an act, which recklessly causes death. Section 565.024 RSMo 1994. "A person internal 'acts recklessly' or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Section 562.016(4) RSMo 1994.
The evidence, including defendant's testimony, would not support a finding he acted recklessly. His counsel told the jury in opening statement he acted intentionally in self-defense. Defendant testified before the jury that his acts were necessary for his defense. Submission of an involuntary manslaughter instruction would have submitted an issue that the parties did not try.
Second, over the state's objection the court submitted a self-defense instruction. That instruction was consistent with the only defense presented by defendant. That defense may succeed only if the jury finds the defendant acted intentionally to defend himself and he was justified in so doing. State v. Albanese, 920 S.W.2d 917, 925 (Mo. App. W.D. 1996).
Third, the acknowledgement by defendant that he...
To continue reading
Request your trial