State v. Johnson
| Decision Date | 28 January 2020 |
| Docket Number | WD 82293 |
| Citation | 599 S.W.3d 222 |
| Parties | STATE of Missouri, Respondent, v. Ray A. JOHNSON, Appellant. |
| Court | Missouri Court of Appeals |
Nathan J. Aquino, Jefferson City, MO, for respondent.
Damien De Loyola, Kansas City, MO, for appellant.
Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge
Ray A. Johnson ("Johnson") appeals his convictions of first-degree murder and armed criminal action following a jury trial. Johnson claims the State made an improper acquittal-first argument during closing that requires reversal of his convictions and a new trial. Finding no reversible error, we affirm.
Johnson does not challenge the sufficiency of the evidence to support his convictions of first-degree murder and armed criminal action. Viewed in the light most favorable to the verdict, the evidence established that two witnesses driving in a vehicle near Bob's bar observed a man later identified as Johnson shoot a male victim during a physical altercation outside of the bar. The witnesses then observed Johnson standing over the victim and shooting him four or five more times. Johnson fled the scene after the shooting.
Surveillance video showed Johnson and the victim getting into the physical altercation, and showed the two witnesses driving by in a vehicle. Other evidence established that Johnson and another man, William Brown ("Brown"), spoke with the victim inside the bar; that Brown and the victim then exited the bar together; and that Johnson and another one his friends hurried out of the bar behind Brown and the victim. It was at this point that Johnson instigated an altercation with the victim.
Shell casings found at the scene were determined to have been fired from the same gun. Parts of broken eyeglasses found in two locations near the scene were genetically matched to Johnson, and video surveillance showed Johnson wearing the located eyeglasses just prior to the shooting. When Johnson was detained four days after the shooting, he was wearing new eyeglasses that still had the fashion designer sticker attached.
The victim's girlfriend identified Johnson from the bar's interior surveillance system based on the clothing he was reported to have been wearing at the time he shot the victim. She also identified Johnson as someone the victim might have been having trouble with.
An autopsy established that the victim died of multiple gunshot wounds, and that at least one of the gunshots was fired from within three feet. The victim's gunshot wounds were on the back side of his left shoulder, clustered on the right side of the abdomen, on his hand, and on his buttocks. Bullets traveled through the large blood vessels in the victim's right leg, and through the victim's lung and kidney.
Johnson acknowledged that he was involved in an altercation with the victim just before the shooting, and that his eyeglasses were broken during the altercation. Johnson denied, however, that he had a gun or that he was the shooter. Johnson claimed another unidentified individual shot the victim. Johnson's trial counsel aggressively challenged at trial all of the evidence and testimony that tended to identify Johnson as the shooter, and argued that the police had rushed to judgment.
At trial, the jury was instructed on first-degree murder, and the lesser-included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. During closing argument, the State discussed the essential elements of murder in the first degree and addressed the evidence supporting those elements, including the element of deliberation. The State then summarized its argument, and addressed the lesser-included offense instructions as follows:
(Emphasis added.) Johnson did not object, though he now complains on appeal that the emphasized portion of the State's closing was an improper acquittal-first argument.
Johnson's closing argument was devoted exclusively to the theory that Johnson had been misidentified as the shooter. The jury instructions were not discussed. Nor did defense counsel suggest that any of the lesser-included offense instructions were more appropriately supported by the evidence than the instruction for first-degree murder.
The jury convicted Johnson of first-degree murder and armed criminal action. Johnson filed this timely appeal.
Johnson raises two points on appeal. First, he alleges that the trial court committed plain error when it failed to sua sponte intervene and issue a corrective instruction to the jury because the State's argument that the jury had to find Johnson not guilty of first-degree murder before it could consider the lesser-included offenses was an improper acquittal-first argument that resulted in manifest injustice and a miscarriage of justice requiring a new trial. Second, Johnson argues that the prosecution plainly erred when it made an improper acquittal-first argument which resulted in manifest injustice and a miscarriage of justice requiring a new trial.
Johnson concedes that both of his points on appeal are subject only to plain error review as neither was preserved for appellate review. Plain error review "is discretionary and limited to determining whether a plain error resulted in a ‘manifest injustice or miscarriage of justice[.]’ " State v. Wood , 580 S.W.3d 566, 578 (Mo. banc 2019) (citing Rule 30.20). "The threshold issue in plain error review is whether the [trial] court's error was facially ‘evident, obvious, and clear.’ " Id. at 579 (quoting State v. Jones , 427 S.W.3d 191, 195 (Mo. banc 2014) ). "If the appellant establishes a facially ‘evident, obvious, and clear’ error, then this Court will consider whether the error resulted in a manifest injustice or miscarriage of justice." Id. (quoting Jones , 427 S.W.3d at 195 ). "To obtain a new trial on direct appeal based on a claim of plain error, the appellant must show ‘the error was outcome determinative.’ " Id. (quoting State v. Baxter , 204 S.W.3d 650, 652 (Mo. banc 2006) ).
In his first point on appeal, Johnson argues that the trial court plainly erred when it failed to sua sponte intervene and give a curative instruction when the State argued during closing that the jury could consider the lesser-included offense instructions "only ... if you find [Johnson] is not guilty of murder first degree." Johnson argues this was an improper acquittal-first argument, and that the trial court had a duty to intervene to correct the misstatement of the law.
"Missouri's instructions on lesser-included offenses do not require that the defendant first be acquitted of the greater offense before the jury can consider the lesser offense." Tisius v. State , 183 S.W.3d 207, 217 (Mo. banc 2006) (citing State v. Wise , 879 S.W.2d 494, 517 (Mo. banc 1994) ). "Instead, MAI-CR3d 313.04 provides that juries are allowed to consider the lesser-included offense if they ‘do not find the defendant guilty’ of the greater offense." Id. "Therefore, an acquittal first argument is a misstatement of the law and can constitute reversible error." Id.
The State argues that the challenged statement made during closing is not an acquittal-first argument. The State contends that telling a jury they must find a defendant "not guilty" of a greater offense before reaching lesser-included offense instructions is not a direction that the jury must acquit of the greater offense. The State therefore contends that telling a jury they must find a defendant "not guilty" of a greater offense is indistinguishable from telling a jury they can only consider lesser-included offense instructions if they "do not find the defendant guilty," as Johnson's jury was instructed. We disagree.
In every criminal case, MAI-CR4th 402.05 must be read to the jury. See MAI-CR4th 402.05, Notes on Use; see also State v. Goucher , 111 S.W.3d 915, 916-17 (Mo. App. S.D. 2003) (). MAI-CR4th 402.05 was read to the jury in this case. MAI-CR4th 402.05 provides, in pertinent...
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