State v. Jackson

• Decision Date: 22 July 1974
• Docket Number: No. 57877,No. 1,57877,1
• Citation: 511 S.W.2d 771
• Parties: STATE of Missouri, Respondent, v. Otis JACKSON, Appellant
• Court: Missouri Supreme Court

Page 771

511 S.W.2d 771

STATE of Missouri, Respondent, v. Otis JACKSON, Appellant.

No. 57877.

Supreme Court of Missouri, Division No. 1.

July 22, 1974.

John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, for respondent.

David G. Dempsey, Dempsey, Dempsey & McCarthy, Gary J. Morris, Carp & Morris, Clayton, for defendant-appellant.

WELBORN, Commissioner.

Appeal from judgment of conviction and sentence of life imprisonment on verdict of jury finding appellant guilty of murder in the first degree.

In September, 1971, appellant Otis Jackson was the owner of a bar, known as Jack's House, located at Spring and St. Louis Avenue in St. Louis. At around 1:15 A.M. on September 23, 1971, the bar had been closed and the patrons had left. The barmaid, Shirley Weber, a waitress, Charlene Dickerson, a porter known as 'Porky,' another employee, Hank Daues, and Eugene Helm remained on the premises. Helm, known as 'Geno the Psycho,' had worked at the bar on Wednesdays for about five months as a 'record spinner.'

Jackson told Shirley Weber to pay Geno $20 for his services that night and take the money from the cash register. A cash register ticket showed a $1.70 charge to Geno and that amount was deducted from the $20 and the barmaid started to hand Geno $18.30. Jackson said that Geno owed him $2.00 from an earlier transaction and took that amount from the money as the barmaid handed it to Geno.

Jackson and Geno began to argue about the $2.00. Jackson was behind the bar and Geno was on the customer side. Each used profanity but neither the barmaid nor the waitress could recount any of the language used. According to the barmaid, she looked around and saw that Jackson had a 30--30 rifle in his hands. She told the waitress, 'We better get out of here' and jumped over the bar and went out the front door of the tavern. Just as she got outside, she heard a shot fired. The barmaid heard Geno voice no threat against Jackson and saw him make no move toward Jackson.

The waitress, Charlene Dickerson, heard the argument and then saw Jackson crouched over the bar, pointing a gun at Geno. The waitress said the gun had been kept behind the bar. When the barmaid left, Charlene crouched in a corner near the door, still looking at Jackson and Geno. She saw the shot fired and left to get someone to call the police. She also stated that she heard no threat by Geno against defendant and did not see him move toward the defendant.

Earline Griffin had been a patron of the bar earlier in the evening. She had returned at around 1:30 A.M. to get her coat and saw Charlene outside the tavern. Charlene told her that Jackson had shot Geno. Earline went in and saw Jackson behind the bar and Geno crouched at the bar. According to Earline, Geno fell to the floor and started crawling. Jackson said 'Get up m_ _ f_ _ and get out of the place.' Geno said, 'I am trying, Jack,' and crawled to the door. Jackson came from behind the bar, still carrying the rifle, and grabbed Geno by the arm and dragged him out the door and threw him on the sidewalk.

Charlene Dickerson stated that after Geno got outside, she asked Jackson to let her call the police. Jackson gave her $10 and said, 'Here, take this money and get him away from here. I don't give a damn how you get him to the hospital.'

Police were called and arrived at the scene and arrested Jackson. Geno was taken to the hospital where he died of a hemorrhage resulting from the gunshot wound which severed the iliac artery.

The evidence showed the Geno was 28 years of age, six feet three inches tall, and weighed approximately 210 pounds. Analysis of a sample of his blood taken at the hospital showed an alcoholic content of .15%. There was other evidence that Geno had been drinking that evening.

Testifying in his own behalf, Jackson stated that he paid Geno $20 for his services for the evening, deducting the $1.70 shown on the cash register tape. He noticed another tape for $2.00 and deducted that amount also. He went from behind the bar and cut off the juke box. When he returned, he heard this 'numble jumbling' from Geno at the bar. He became aware the Geno was complaining about not owing the $2.00. At first his language was not 'out of the ordinary,' but 'it built up momentum as it went along.' After about three minutes of verbal abuse from Geno from a distance of 12 to 14 feet, Jackson picked up the gun when Geno started advancing toward him and told Geno not to come up on him. Geno hesitated momentarily and then said: 'You got a gun but I ain't scared of you. I ain't scared of anything. You are going to have to kill me.' Geno kept advancing and Jackson kept saying, 'Go ahead; go ahead.' 'This was all I could say. I was what you call pleading with the man to just go ahead, just to be left alone.' When Geno continued to advance and was within seven feet, Jackson fired at him.

Jackson testified that 'Porky' and Charles Ross, a patron who had returned after the shooting, helped Geno to the sidewalk. Ross so testified, but 'Porky's' whereabouts were unknown at the trial. There was evidence that Daues was present when the argument began and attempted to placate Geno by offering to give him $2.00. Daues left before the shooting and did not testify.

Instructions were given to the jury on murder in the first degree, murder in the second degree, manslaughter and self-defense. The jury found Jackson guilty of murder in the first degree.

Appellant attacks the submissibility of the first degree murder charge, alleging that the killing occurred during a heated quarrel, without antecedent hostility. Appellant contends that the circumstances show that the killing was not 'in cold blood,' but under the influence of immediate anger, and that, therefore, the element of deliberation was not shown.

Deliberation is, of course, the element that distinguishes first degree from second degree murder. § 559.010, RSMo 1969, V.A.M.S. Deliberation for purposes of this offense means that the defendant 'considered the matter of taking another's life in a 'cool state of the blood,' or with a 'cool and deliberate state of mind. '' State v. Marston, 479 S.W.2d 481, 484(4, 5) (Mo.1972). 'Under the authorities it appears that a finding of deliberation depends not so much upon the time element as it does upon an inference, reasonably drawn from the evidence, that the defendant performed the act in a cool and deliberate state of mind.' State v. Davis, 400 S.W.2d 141, 146 (Mo.1966).

Viewing the evidence here favorably to the verdict, defendant, in the course of a quarrel in which he and the deceased exchanged epithets, and in which the deceased made no aggressive move against defendant, obtained a 30--30 rifle, placed it on the bar, and when the argument continued fired the rifle at the victim, the bullet striking him and causing his death. This evidence was sufficient to put the issue of deliberation before the jury and to permit the jury to find that defendant acted deliberately. State v. Cheek, 413 S.W.2d 231, 235(2) (Mo.1967); State v. Small, 344 S.W.2d 49 (Mo.1961); State v. Davis, 400 S.W.2d 141 (Mo.1966).

The defendant's own testimony which may be considered in determining the submissibility issue, inasmuch as defendant did not stand on his motion to dismiss at the close of the state's case, was that the argument was a one-sided affair, with Geno heaping abuse on him but with appellant merely requesting Geno to leave.

Cases relied upon by appellant are primarily those which hold that in a situation such as that involved in this case, a second degree murder instruction is required. That problem is not here presented since the court did instruct on murder in the second degree. Cases relied upon by appellant, such as State v. McNeal, 237 S.W. 738 (Mo.1922); State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595 (1939), and State v. Liolios, 285 Mo. 1, 225 S.W. 941 (1920), all involved reversals of conviction of first degree murder for failure to instruct on second degree murder. None, however, held the charge of murder in the first degree to have been improperly submitted. Consideration of the second degree murder question in those cases related, necessarily, to the particular facts involved. In Jackson, for example, the court recited testimony that the defendant was 'mad,' 'trembling' and '(had) a stare in his eyes' as evidencing an issue of lack of 'cool blood.' 130 S.W.2d 597. In McNeal, the court recited briefly a state of facts which would have supported a finding only of second degree murder. The case does not hold that a preliminary argument between the victim and the defendant precludes a finding of deliberation. Liolios involved an encounter between the defendant and his unfaithful wife.

Here, there was obviously evidence from which the jury could have found appellant guilty of murder in the second degree. However, the evidence also warranted the first degree submission.

Error is predicated on rulings relating to alleged improper argument by the assistant circuit attorney. Appellant asserts that in his closing argument, the prosecutor went beyond the record in four instances. First, he argued that a state's rebuttal witness had testified that Jackson told him that he asked the other employees to leave before the shooting. The transcript shows no objection to this argument, nor is reference made to it in the motion for new trial. Therefore, no proper foundation has been laid for presentation of the matter on this appeal. State v. Clark, 412 S.W.2d 493, 497(5--8) (Mo.1967); State v. Martin, 484 S.W.2d 179, 180(1) (Mo.1972).

The second objection relates to argument based upon appellant's place of residence, which did not appear in the record. Appellant testified that he had the gun at the bar because he carried money home when he left the bar. The prosecutor attempted to deflate this testimony by arguing that appellant lived upstairs, stating 'He (appellant) testified he lived at 3646a St. Louis...