State v. Jennings

• Decision Date: 30 July 1991
• Docket Number: Nos. 55682,58698,s. 55682
• Citation: 815 S.W.2d 434
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Marvin JENNINGS, Defendant/Appellant. Marvin JENNINGS, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 434

815 S.W.2d 434

STATE of Missouri, Plaintiff/Respondent, v.Marvin JENNINGS, Defendant/Appellant.

Marvin JENNINGS, Movant/Appellant, v.STATE of Missouri, Defendant/Respondent.

Nos. 55682, 58698.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 30, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Sept. 5, 1991.

Application to Transfer Denied Oct. 16, 1991.

Susan L. Hogan, Asst. Appellate Defender, Kansas City, for defendant/appellant, movant/appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent, defendant/respondent.

AHRENS, Judge.

Marvin Jennings appeals from the judgment rendered by the trial court after a jury found him guilty of five counts of murder in the first degree, two counts of assault in the first degree, one count of robbery in the first degree and eight counts of armed criminal action.The jury assessed punishment of life imprisonment without the possibility of probation or parole on each of the murder counts.After finding appellant to be a prior offender, the trial court sentenced appellant to life imprisonment without the possibility of probation or parole on each of the five murder counts, fifteen years' imprisonment on each assault count, and life imprisonment on each of the robbery and armed criminal action counts, with all sentences to run consecutively.

Marvin Jennings also appeals the denial of his Rule 29.15 motion without an evidentiary hearing.The two appeals have been consolidated.We affirm both the trial court's judgment of conviction and the motion court's order denying post-conviction relief.

The evidence, viewed in the light most favorable to the verdict, State v. Feltrop, 803 S.W.2d 1, 5(Mo. banc 1991), established that on September 4, 1987, the National Supermarketat 4331 Natural Bridge Road in the City of St. Louis was robbed shortly after closing.Several employees, including Harold Meyer, Richard Fortson, Rose Beam, Michael Marr, Mike Beam and Chris Hennicke, as well as David Spahn, a security guard, and Kenneth Bass, a cleaning crew employee, were in the store at the time.Meyer was in his office; Brown and Fortson were in the adjacent customer service office.Marr called to Meyer about leaving, and the security guard escorted Marr toward the automatic doors on the store's east side to let him out.Within a minute of their leaving, a gunman ("first gunman") entered Meyer's office, put a gun in Meyer's face and announced the holdup.The gunman ordered him to open the safe.Brown, Fortson and Beam came into Meyer's office.The gunman hit Meyer in the head and then punched Beam when initial efforts to open the safe were unsuccessful.Brown was eventually able to open the safe.

The gunman filled a National plastic bag with money from the safe.A total of $7,534.20 was stolen, including $1,500.00 to $3,000.00 in dollar bills bundled in stacks of one hundred.Ten stacks were blocked together in cellophane and wrapped to form a brick.The gunman took some bus passes and ordered the employees out of the office.

Earlier, from the office window looking into the store, Fortson had seen a man whom he first thought was a cleaning man approach the security guard, pull a gun out of his pants and wave the security guard over.This man was wearing a multicolored flannel shirt.As they left the office, Meyer saw another man with a gun in his hand, standing by a liquor display and facing the other way.

The four employees were ordered to lie down on the floor.The security officer and cleaning man were already on the floor.The first gunman ordered the employees to get up and lie down closer together with their heads next to the wall; Marr then approached and joined the others on the floor.Ten seconds later and with no exchange of words, two gunmen fired shots at the employees' heads.The first gunman was standing at Meyer's feet; the second, at another location.Five to eight shots were fired.The second gunman asked the security guard for more bullets and took them from the guard's pocket.He reloaded and went down the line, again shooting Beam, Bass, and Brown in the head.When he put the gun to Meyer's head, Meyer ducked his head out of the way just as the gunman pulled the trigger.Meyer was shot in the hand, but pretended to be dead.

Hennicke was stocking shelves with two other men in the store when he heard at least six shots.He first saw a man he thought was from the cleaning crew looking out towards the street; he then saw another man in the front of the store, leaning over several bodies on the floor.Meyer was toward the corner, with blood on his forehead.Hennicke ran back to where the other stockmen were and heard additional shots.Hennicke and another stockman crawled up on the roof and yelled for help to a woman walking down the street.From the roof, Hennicke saw the men leave the store in a car.In the meantime, Meyer had crawled to a telephone and called the police.Brown, Beam, Bass, Spahn, and Marr died from their gunshot wounds.Meyer and Fortson survived and testified at trial.

That same night, Phillip Harden went to the home of James Blankenship, a younger brother of appellant's codefendant Donnie Blankenship.Donnie, the only one at home, showed Harden a gun, later identified as having belonged to the security guard.Donnie was drinking and acted nervous.Appellant was not present.

Two or three days later, Harden gave Donnie a ride to the house of Leroy Blankenship, Donnie's older brother.Donnie acted nervous and ducked down in his seat when they passed a police car.When Harden asked what was wrong, Donnie responded that he had committed a robbery.Three or four days later, Donnie loaned Harden fifty dollars, all in one-dollar denominations.

Sharon Lewis, the mother of appellant's child, saw appellant the morning after the murders, around nine o'clock.Appellant paid her forty or sixty dollars he had borrowed from her two days earlier.

Leroy also saw Donnie and appellant the day after the murders.Donnie, appellant's brother Myron, and appellant were planning to go to New Orleans for a relative's funeral.A few days after their return from New Orleans, Donnie and appellant went to Leroy's home.While they were watching television, a news broadcast of the National Supermarket crime was aired.Donnie stated, "We was in that."Appellant was silent, but shook his head.

Leroy testified that about a week after he had heard of the National Supermarket robbery, Donnie brought a gun and white plastic grocery bag to Leroy's home.The bag contained $1,000.00 in one-dollar bills, banded and wrapped in plastic in bundles of one hundred, and about two hundred loose one-dollar bills.Leroy testified that Donnie said he got the money from a dope house.Donnie asked Leroy to keep the gun and money for him.In his statement to police, Leroy said Donnie later told him the gun and money came from the National store.

In mid or late September, Donnie Blankenship saw his uncle Jimmy Kennedy at an auto mechanic's shop.Donnie mentioned to Kennedy that he had a gun.Donnie paid the auto mechanic fifty dollars, including forty one-dollar bills, as a deposit for some car repairs.Donnie also agreed to loan the gun to Kennedy, and told him it was at Leroy's house.

Kennedy picked up the gun at Leroy's house a few days later.Kennedy left the house with the gun and kept it for a few weeks at his home for protection.Donnie later told Kennedy he wanted the gun back, and Kennedy, planning to return the gun, put it in the trunk of his car.

On November 8, 1987, police stopped Kennedy for speeding.Kennedy could not produce satisfactory proof that he owned the car.After Kennedy consented, the police conducted an inventory search of the car and discovered the gun in the trunk.The gun was later identified as the gun taken from the security guard the night he was murdered.Kennedy first told the police he had obtained the gun off the street, but later he revealed that Donnie Blankenship had given him the gun.

On November 10, 1987, Phillip Harden heard of Kennedy's arrest on the news.Harden and James drove to the house of appellant's girlfriend, Grace Stevenson, and had a discussion with appellant about leaving town.They then went to Leroy's house, where they and Donnie Blankenship discussed getting Donnie out of town.James, Donnie and Harden drove to Burger King (where James worked) to get money James' boss had been saving for him.James was unable to retrieve the money.

Harden and Donnie again went to Stevenson's home to see appellant.James again tried to collect his wages.He had been directed to call Donnie at Stevenson's home once he had collected the money.

The police apprehended Donnie and appellant when they ran out the back door of Stevenson's home.Both men were arrested, as were Stevenson and Harden.

Sharon Lewis, James Blankenship, and Leroy Blankenship gave statements to the police that strongly implicated appellant in the robbery-murders.At trial, however, Sharon and James recanted much of what they had told the police; Leroy also denied certain prior assertions and claimed he could not remember certain details.The prior inconsistent statements of all three were admitted at trial as substantive evidence.We relate a more detailed account of the statements in our consideration of appellant's third and fifth points.

Appellant's first point alleges the trial court erred in permitting the videotaped statement of James Blankenship to be replayed for the jury during its deliberations.Shortly after it had retired to deliberate, the jury asked for a number of exhibits, including the videotape.The trial court, with counsels' approval, gave the jury all the requested exhibits except the videotape.The jury again asked for the tape.Over appellant's objection, portions of the videotape played during the trial were again shown to the jury.During the...