State v. Hill, 18546
| Citation | 884 S.W.2d 69 |
| Decision Date | 29 July 1994 |
| Docket Number | No. 18546,18546 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James A. HILL, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Susan L. Hogan, Appellate Defender, Kansas City, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
James A. Hill (Defendant) was found guilty, following a jury trial, of second degree murder. § 565.021, RSMo 1986. The trial court sentenced him to thirty years' imprisonment pursuant to the jury's assessment of punishment.
On appeal Defendant contends the evidence was insufficient to support his conviction. He also charges that the trial court erred in submitting the second degree murder verdict directing instruction and the instruction defining "proof beyond a reasonable doubt." Finally, Defendant asks that we remand to the trial court with instructions that he be allowed to file a motion for new trial based upon evidence first discovered after time for filing a new trial motion had expired.
We find the evidence sufficient and no error in the challenged jury instructions. We affirm. Defendant's request for remand is denied.
Tyrone Davis (the victim), was shot in the buttocks and back at the home of Denise Bernhardt and Larry Saddler in Joplin, Missouri, at approximately 1:00 a.m. on January 10, 1992. He died of massive intra-abdominal bleeding caused by the bullet that entered through his buttocks.
Saddler testified that, between 7:30 and 8:10 p.m. on January 9, 1992, he and the victim were visiting at the home of Dale Berry in Joplin when Stephen Hill, Defendant's brother, showed up. An argument between the victim and Hill soon erupted regarding money allegedly owed by Hill to the victim. The victim and Saddler left after agreeing they would meet Hill later at a Joplin restaurant and Hill would then pay what he owed. Saddler and the victim went to the restaurant as arranged, but Hill never showed up.
Saddler and the victim parted company until 12:45 a.m. January 10 when the victim called Saddler asking that he take him to a motel. Saddler declined but told the victim he could stay at his house. The victim arrived at about 1:00 a.m., and Saddler left him in the front room to "crash" on a couch. Saddler was on his way into the bathroom when he heard a knock on the front door. Saddler said he "hollered out and asked who it was." He heard somebody say "James" and people talking at the front door. He recognized Defendant's voice as one of the persons talking. He then heard voices "outside" on the porch, including someone saying, "Oh, you got a gun." Saddler then heard a single shot, and, as he came out of the bathroom, he heard a series of shots. Upon entering the front room Saddler saw the victim falling back through the door from the porch, whereupon "somebody stuck ... a foot in the door ... and was shooting through the door." Saddler slammed the door shut and heard the victim say, "They got me." Saddler examined the victim, found the bullet wounds, and called for an ambulance and police.
Bernhardt testified that she was asleep in the bedroom she shared with Saddler when she was awakened by the sound of gunshots. She jumped out of bed and went to a bedroom door that opened to the front room. There she saw Saddler trying to close the front door and heard Saddler say, "James, what the hell are you doing?" She then saw the victim lying in her front room.
Dale Berry testified that on the evening of September 9, 1992, Saddler and the victim visited him and his girl friend, Terri Jo Gates. Sometime after they arrived, Stephen Hill arrived and got into a "loud" and "heated" argument with the victim. Berry asked them to leave, which they did, Hill going by himself and the victim and Saddler leaving together. Later in the evening, about 9:30 p.m., Defendant and his brother Stephen came to Berry's house asking about the whereabouts of the victim. They left upon learning that the victim was not at Berry's house.
Around 11:00 p.m., the Hill brothers returned to Berry's house at which time Stephen had a "nickel, chrome-plated .38 in his left hand and a .22 rifle in his right hand." Berry saw the "butt of a high-standard .22" gun inside Defendant's jacket. The Hills asked Berry "to go find them some coke," and he left with them. While with the Hills, their conduct was such that Berry believed "they were going to take me out and kill me." When the pair took Berry home at 12:55 a.m., Berry "was scared that they were going to come back and kill us." Berry then left, taking his girl friend Gates with him, "to go warn Tyrone [the victim]." Berry drove to Saddler's house, but parked and shut off his headlights when he saw Defendant on the front porch of Saddler's house talking to the victim. He also saw Stephen Hill "around the corner of Larry's house" with his "back plastered up against the wall of the house." As Defendant and the victim "were arguing," Stephen Hill "came around the corner and opened fire on [the victim]." When that happened, Defendant was on the sidewalk in front of the porch with his back to Berry. Consequently, Berry could not see what Defendant was doing with his hands. Berry saw the victim "go down" on the porch, whereupon Berry left the area.
Gates testified that she was at her home the evening of January 9, 1992, when she heard a "very heated argument" between the victim and Stephen Hill concerning Hill's debt to the victim. She recounted another visit by Stephen Hill to her home approximately two hours later. Hill was accompanied by Defendant on his second visit. The Hills returned to her home yet another time--at 11:30 p.m.--at which time Stephen Hill was dressed in black and was carrying two guns, a short pistol and a long rifle. On their last visit, the Hills took Berry with them. When Berry returned alone about an hour later, he told Gates that he needed to go to "Larry's house and warn Tyrone [the victim]." Gates and her child went with Berry because he told her it was not safe for her to stay. When they arrived at Saddler's house, Gates saw Defendant standing in the yard facing the house, the victim on the front porch, and Stephen Hill "walking towards the front of the house." Defendant and the victim were arguing. Terri next saw Stephen Hill come around the corner of the house and raise "the guns," and she saw "flashes." When the shots ended she and Berry left, but not before seeing the Hills run from the scene of the shooting.
Defendant testified as follows. On the evening of January 9, 1992, he rode around Joplin for about an hour drinking beer until he met his brother. They drove around together until they decided to buy some drugs, prompting them to go to Berry's house sometime between 8:30 and 9:30 p.m. When they went in Berry's house, Stephen Hill had two guns, a rifle and a .32 handgun, which he intended to sell or trade for drugs. Berry had no drugs, but he left with the Hills to help them look for drugs and a buyer for the guns. After failing in those quests, Berry was taken back to his house. Through a telephone call, Defendant learned that Saddler had drugs to sell. The Hills then drove to Saddler's house, arriving sometime between 11:30 p.m. and midnight. Upon passing by Saddler's house they saw a number of people milling around. Without ever stopping, they drove "back around" Saddler's house and then went to the home of Stephen Hill's girlfriend where they spent the rest of the night. Defendant denied shooting Tyrone Davis and denied being present when he was shot.
Patrick Dean McClintic, age 18, was called by the defense. He testified that about 1:30 a.m. on September 10, 1992, as he was preparing to go to bed, he heard three or four gunshots. The shooting prompted him to look out his window. He saw a man in front of Larry Saddler's house with his right hand pointed toward Saddler's door. The man had something in his hand, but McClintic could not identify what. As he watched, the man took off toward an alley. McClintic testified that Defendant was not the man he saw in front of, and who then ran from, Saddler's house.
The jury was instructed on first degree and second degree murder, each based on an accessorial liability theory. 1 The jury returned a guilty verdict on the second degree murder charge.
We deal first with Defendant's Point II, in which he challenges the sufficiency of the evidence to convict him. Specifically, he claims the evidence was insufficient for a jury to find he fired any shots at the victim, had any intent to kill the victim, or acted with Stephen Hill with the purpose of promoting or furthering the commission of second degree murder.
The standard for appellate review of the sufficiency of the evidence to support a criminal conviction is stated in State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989):
Id. at 55[2-3]. "Credibility of witnesses and the weight and value to be given their testimony are matters within the province of the jury and are not for review on appeal." State v. Jenkins, 776 S.W.2d 59, 63 (Mo.App.1989).
In reviewing the sufficiency of the evidence when a defendant has been found guilty on an accessorial liability theory, we are guided by additional principles:
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