State v. Johns

• Decision Date: 09 October 1984
• Docket Number: No. 64731,64731
• Citation: 679 S.W.2d 253
• Parties: STATE of Missouri, Respondent, v. Stephen K. JOHNS, Appellant.
• Court: Missouri Supreme Court

Page 253

679 S.W.2d 253

STATE of Missouri, Respondent, v. Stephen K. JOHNS, Appellant.

No. 64731.

Supreme Court of Missouri En Banc.

Oct. 9, 1984.

Rehearing Denied Nov. 20, 1984.

Robert J. Maurer, Asst. Public Defender, Clayton, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant was convicted of capital murder, § 565.001, RSMo 1978, in the Circuit Court of the City of St. Louis and the jury, having found the aggravating circumstances required by law, imposed the death sentence. He now appeals assigning numerous grounds for reversal. We have jurisdiction under Mo. Const. art. V, § 3. We affirm.

The evidence adduced at trial established that on February 18, 1982, an Onyx Gas Station in the City of St. Louis was robbed of approximately $248. A customer who stopped at the station shortly before 8 p.m. discovered the body of the seventeen year old attendant lying face down in a storage room with bullet wounds in the back of his head. The medical examiner who performed the autopsy testified that she found three bullet holes--all within one inch of each other--behind the victim's right ear. One of the bullets had been fired from a distance of less than six inches from the victim's head. The autopsy also revealed a bruise on top of the victim's head.

The state presented substantial evidence tying appellant with the crime. The jury could have believed that during the weeks preceding February 18, 1982, appellant had discussed his plan for robbing the Onyx station with Linda Klund, a long-time acquaintance, and another acquaintance, David Smith. The latter testified that on one occasion appellant stated that he "never left any witnesses." On the day of the crime appellant purchased fifteen .32 caliber shells at a sporting goods store. Klund drove appellant and a second man, Robert Shawn Wishon, to the station. She testified that appellant had a handgun. Klund parked the car a short distance from the station and waited while appellant and Wishon went into the station. When they returned, she followed an escape route planned earlier at appellant's direction. After disposing of the money bag, later recovered, Klund dropped off Wishon and, later, appellant. Appellant gave her $50 and asked her to take a bag containing the gun and bullets so he would not have it in case he was picked up.

Police went to appellant's home at approximately 9:30 p.m. on February 18 where they were admitted by appellant's mother. Appellant was not there. A police detective seized several sheets of paper found on a chair in appellant's bedroom. Shortly thereafter, police officers interviewed Klund at her home. She denied any involvement in the crime. Appellant called Klund after the police officers had left and she informed him that the police were looking for him. He instructed her to get rid of the gun, which she did by hiding it above the ceiling of her apartment.

Appellant came to the home of Albert Keener at about midnight that evening. Appellant told Keener that he was in a lot of trouble; that he and Wishon had robbed the station and that he had shot the attendant in the head three times. Appellant remained at Keener's home that night and the following day. Keener contacted a police officer whom he knew and informed him of appellant's whereabouts, leading to appellant's arrest on February 19.

I

Though the evidence, all circumstantial, tended to show that appellant was the triggerman, the state submitted the case to the jury on a theory of accomplice liability. Appellant now raises a host of objections to the use of Instruction No. 5, the verdict director patterned after MAI-CR2d 2.12 (rev.1983). The instruction follows:

A person is responsible for his own conduct and he is also responsible for the conduct of other persons in committing an offense if he acts with them with the common purpose of committing that offense, or if, for the purpose of committing that offense, he aids or encourages the other persons in committing it.

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 18, 1982, in the City of St. Louis, State of Missouri, the defendant or Robert Wishon caused the death of Donald Voepel, Jr., by shooting him, and

Second, that the defendant or Robert Wishon intended to take the life of Donald Voepel, Jr., and

Third, that the defendant or Robert Wishon knew that he was practically certain to cause the death of Donald Voepel, Jr., and

Fourth, that the defendant or Robert Wishon considered taking the life of Donald Voepel, Jr., and reflected upon this matter coolly and fully before doing so,

then you are instructed that the offense of capital murder has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

Fifth, that with the purpose of promoting or furthering the commission of capital murder, the defendant acted together with or aided or encouraged Robert Wishon in committing that offense,

then you will find the defendant guilty of capital murder.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions submitted in this instruction, you must find the defendant not guilty of that offense.

We note at the outset that appellant's motion for a new trial complained only that the instruction "failed to properly follow MAI-CR2d, and did not adequately instruct the jury with respect to the applicable law." Because we conclude the instruction was properly used in this case, we need not decide whether the objection was sufficiently specific to preserve the particular points appellant now advances. See Rule 23.03.

Appellant first contends this case was an inappropriate one in which to use an instruction patterned after MAI-CR2d 2.12, citing Notes on Use 6(d), 8(a) and 4. We find nothing in the notes that contradicts use of MAI-CR2d 2.12 in this case. Note on Use 6(d) states that a prosecutor need not, but may choose to use the instruction in cases where the evidence shows the conduct constituting the elements of the offense was committed solely by the defendant. Inasmuch as the instruction requires the state to prove that the defendant acted with the purpose of promoting capital murder in addition to the standard elements of capital murder, appellant will not be heard to claim any prejudice from its use. Note on Use 8(a) prohibits the use of MAI-CR2d 2.12 in cases where "the defendant is being held responsible for the conduct of another person and that person is not guilty of the offense." Appellant's accomplice, Robert Shawn Wishon, has been convicted of second degree murder pursuant to a guilty plea. Arguably, this fact precludes use of MAI-CR2d 2.12 in this case. We decline to hold, however, that it was reversible error to use the instruction under these circumstances since a fair assessment of the evidence supports the conclusion that identical charges could reasonably have been brought against both partners had Wishon not pleaded guilty to a lesser offense. We have examined Note on Use 4 and we found nothing in it hindering use of the instruction in this case.

Appellant also contends the instruction failed to properly submit the applicable law. In particular, appellant asserts that the instruction, by submitting each of the elements of capital murder in the disjunctive, permitted the jury to convict appellant even if it determined that Wishon possessed all the necessary elements of capital murder. Thus, appellant complains the instruction enabled a jury to find him guilty of capital murder without attributing to him the necessary mental state. Appellant's argument is identical in substance to the one we rejected in State v. White, 622 S.W.2d 939 (Mo.banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). The defendant in that case, charged with capital murder, contended that the prior version of MAI-CR2d 2.12 improperly stated the law because it failed to require the jury to find that the defendant had the intent required for the commission of the underlying felony. He argued, as does appellant here, that this state's law of accomplice liability required that the jury find that the aider had both the intent to commit the underlying offense and the intent to purposely promote the commission of the offense. In White we dismissed the contention, holding that the jury need only find that the aider purposely aided in the capital murder. Judge Higgins explained the holding in this way:

When, as in the present case, the aider is found to have purposely aided in capital murder and thus has the same intent of the active participant, all other things being equal, they are liable to the same degree. Situations can exist where the liability of each is not the same. In such cases, § 562.051, RSMo 1978, permits the defendant or the state to present evidence aggravating or mitigating the matter. For example, defendant may introduce evidence showing that he did not have the purpose or conscious object of aiding in capital murder. Contrary to appellant's argument, § 562.051, RSMo 1978, does not create any elements of intent in addition to that of § 562.041, RSMo 1978.

622 S.W.2d at 945.

The jury in the case before us was instructed in accordance with our holding in White. The fifth paragraph of Instruction No. 5 required that the jury determine "that with the purpose of promoting or furthering the commission of capital murder, the defendant acted together with or aided or encouraged Robert Wishon in committing that offense." This modification of the instruction accurately submitted the elements necessary for convicting appellant of capital murder on a theory of accomplice liability. The fact that the instruction differs from the format suggested in Note on Use 7, by not requiring the jury also to find that the defendant "reflected upon this matter coolly and fully," is of no...