State v. Howard, s. 18265

Citation896 S.W.2d 471
Decision Date28 February 1995
Docket NumberNos. 18265,19122 and 19123,s. 18265
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Samuel HOWARD and Steve Allen Bowen, Defendants-Appellants. Samuel HOWARD and Steve Allen Bowen, Movants-Appellants, v. STATE of Missouri, Respondent-Respondent.
CourtCourt of Appeal of Missouri (US)

Raymond L. Legg, Office of the State Public Defender, Columbia, for defendant-movant-appellant Samuel Howard.

Laura E. O'Sullivan, Asst. Public Defender, Kansas City, for defendant-movant-appellant Steve Allen Bowen.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent-respondent.

SHRUM, Chief Judge.

In December 1991, defendant Samuel Howard shot and killed Terry Easley and Billy Joe Luttrell during a fight involving the victims and another defendant, Steve Allen Bowen. 1 The state charged both Howard and Bowen with two counts of first degree murder and two counts of armed criminal action. Howard and Bowen defended on the basis that both homicides were justified as Howard acted in the justified defense of Bowen.

A jury rejected their defense and found Samuel Howard guilty of two counts of murder in the first degree, § 565.020.1, RSMo 1986, and two counts of armed criminal action, § 571.015, RSMo 1986. Because Howard was found to be a prior offender, the trial court imposed his punishment, § 558.016. He was sentenced to two terms of life imprisonment without possibility of parole and a ten-year term on one of the armed criminal action charges. 2 All sentences were ordered to be served concurrently.

The same jury found co-defendant, Steve Bowen, guilty on two counts of second degree murder, § 565.021.1, RSMo 1986, and two counts of armed criminal action, § 571.015, RSMo 1986. Bowen was likewise charged as and found to be a prior offender. The trial court sentenced Bowen to life imprisonment on each murder conviction and ten years on each armed criminal action count. The sentences were ordered to be served concurrently.

The direct appeal from Howard's and Bowen's convictions is No. 18265.

After he was sentenced, Howard filed a pro se motion under Rule 29.15 3 seeking to vacate his convictions and sentences. Appointed counsel later filed an amended Rule 29.15 motion for Howard. Following an evidentiary hearing, the motion court denied both motions. Howard's appeal from the denial of his motions is No. 19122.

Bowen also filed a pro se motion under Rule 29.15 seeking to vacate his convictions and sentences. Appointed counsel filed an amended Rule 29.15 motion on his behalf. After an evidentiary hearing, the motion court denied both motions. Bowen's appeal from the denial of his motions is No. 19123.

All appeals were consolidated per Rule 29.15(l ).

In No. 18265, we affirm Howard's convictions for first degree murder and armed criminal action arising out of the death of Easley. We reverse his conviction for the murder of Luttrell and remand.

Also, in No. 18265 we affirm Bowen's convictions for second degree murder and armed criminal action arising out of the killing of Easley. We reverse his convictions for second degree murder of Luttrell and the armed criminal action underlying that conviction and remand those cases.

We affirm the postconviction appeals, No. 19122 and No. 19123.

Facts From Trial Testimony

Although this record does not reveal the genesis of the dispute that led to the shootings, it does establish that on December 19, 1991, Bowen told Easley's brother, Robert, that he [Bowen] was being "pushed" by Easley and added, "I can't whip him but I'll shoot the m_____ f_____." The dispute continued when, on the morning of December 23, 1991, Bowen walked into Easley's home and there complained to those present about an incident earlier that morning involving Bowen's sister as she walked by Easley's house. Among the persons present during this confrontation were Luttrell and Easley, ultimately the victims.

The next encounter between Easley and Bowen occurred during the early evening of December 23 at the South End tavern in Kennett, Missouri. Earlier that afternoon, Easley and certain of his friends and family had gone to the tavern to play pool and drink. According to Bowen, when he entered the tavern, he was struck and kicked repeatedly by Easley. He testified that the tavern assault occurred without warning and without provocation on his part.

After the tavern fight ended, Bowen went to the home of his brother, Dennis Bowen. Present at the Dennis Bowen house were Howard, Dennis and Daniel Bowen, and Rick Wadley. While all were present, Bowen told Howard about the incident at the South End tavern. At trial, Bowen testified, "I wanted him [Howard] to go with me because Bear [Luttrell] was there and I wanted him [Howard] to keep Bear [Luttrell] off me while I whipped Terry [Easley]." Immediately, Howard and Bowen left together in Bowen's car in search of Easley. Dennis Bowen, Donald Bowen, and Rick Wadley followed in Bowen's pickup truck. Bowen's car contained a club or stick and his truck that followed contained the rifle that was ultimately used to kill the victims.

The drivers of the two vehicles first went to the South End tavern but found that Easley and his group had left. They then drove to Robert Easley's shop but found no one. Continuing to search for Easley, Bowen and his passenger Howard drove to Easley's house. The other group members followed in Bowen's truck. As the Bowen vehicles arrived at Easley's house, Easley and Luttrell came out and confronted Bowen and Howard in the front yard. Kathy Luttrell, viewing the initial encounter from the Easley home, testified that when the two people in the car first got out, they were armed with clubs. She heard those two yell, "[O]dds are even. Let's get it on." Thereupon fighting between the victims and the co-defendants commenced. Easley's wife, Bridgett, testified that soon after the fight started, she heard Howard say, "[W]e can do it now. We can kill them all now." Upon hearing that, Bridgett testified she went back into the house to get a stove poker, and it was when she returned to the front yard area with the stove poker that she first heard shots and saw that both victims had been hit.

The undisputed evidence was that Howard shot both victims with the .22 caliber rifle taken from Bowen's truck. Easley was shot twice in the back, three times in the facial area, and twice in the arm. Luttrell was shot in the forehead and left hand. A member of the state highway patrol, Steven Niederkorn, testified that Howard told him in a post-shooting interview that he had stopped shooting because the gun jammed. Howard denied making such statement and testified the patrolman jammed the gun after it was recovered.

Both Bowen and Howard testified in their defense. They testified that initially the fighting was only between Bowen and Easley and no weapons were involved. It was only after Bowen knocked Easley down that Luttrell entered the affray by grabbing Bowen from behind. They testified that Luttrell then produced a knife, Easley obtained a club or piece of firewood, and while they had Bowen subdued, they repeatedly threatened to kill him. As the threats were made, Luttrell alternately placed the knife near Bowen's throat and genital area in a threatening manner. Bowen testified he asked to be let go and told the victims he was ready to quit, but they continued with their threats and brandishing of weapons. Believing that Bowen's life was in danger, Howard shot both victims.

After the shooting, Howard, Bowen, and their group immediately fled the scene. Howard and Bowen threw the rifle into a road side ditch and then left Dunklin County. During their flight, Bowen washed blood from his car, clothing, and himself. Approximately twenty-four hours after the shooting, Bowen and Howard returned to Dunklin County and surrendered to local law enforcement officers.

We recite additional facts later when essential to an understanding of Defendants' various points on appeal.

Sufficiency of the Evidence

In his first point, Howard challenges the sufficiency of the evidence to support his convictions. Specifically, he contends that the state's evidence was insufficient to prove that he deliberately killed Easley and Luttrell. Howard argues that there was no evidence he arrived at the scene of the shooting intending to kill anyone, and says that "[t]he credible testimony at trial showed that [Howard] obtained a gun only after the fight had started."

The standard for appellate review of the sufficiency of the evidence to support a criminal conviction is well established.

" 'On review, [an appellate court] accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. [Citation omitted.] In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.' "

State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) (quoting State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989)). Moreover, there must be evidence to support each element of the offense charged. State v. Munson, 714 S.W.2d 515, 521 (Mo. banc 1986).

To sustain a conviction for murder in the first degree, the prosecution must prove beyond a reasonable doubt that the accused "knowingly cause[d] the death of another person after deliberation upon the matter." § 565.020.1, RSMo 1986; State v. Watson, 839 S.W.2d 611, 616 (Mo.App.1992). "Deliberation" is defined as "cool reflection for any length of time no matter how brief." § 565.002(3), RSMo 1986. The actor need not...

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