State v. Kelly

• Decision Date: 30 January 2001
• Citation: 43 S.W.3d 343
• Parties: (Mo.App. W.D. 2001) . State of Missouri, Respondent, v. Ray Kelly, Appellant. WD57705 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

43 S.W.3d 343 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Ray Kelly, Appellant.

WD57705

Missouri Court of Appeals Western District

Handdown Date: 01/30/2001

Appeal From: Circuit Court of Jackson County, Hon. Thomas H. Newton

Counsel for Appellant: Susan Hogan

Counsel for Respondent: Susan Glass

Opinion Summary: Ray Kelly was found guilty of two counts of first-degree robbery and two counts of armed criminal action. On July 31, 1995, Kelly and another man walked into a 7-11 store with guns and their faces painted or covered. They men took money from the cash register and some Newport cigarettes and left the convenience store in a red compact car. The next day, Kelly and another man entered The Half Price Store and began taking clothes off the racks in the men's department without looking at size or price. The men left the store and when confronted by a loss prevention agent, Kelly dropped the clothes on the ground. The loss prevention agent attempted to lock the doors of Kelly's car so he could not get away, and Kelly pointed a handgun in the agent's face. Kelly and the other man ran away from the store without the clothes.

AFFIRMED IN PART, REVERSED IN PART, AND REVERSED AND REMANDED IN PART.

Division Two holds:

(1) The law of the case doctrine precludes Kelly's claim that the trial court should have severed Counts I and II from Counts III and IV.

(2) The State did not meet its burden of proving that Kelly used force to steal the property at The Half Price Store. Therefore, Kelly's convictions on Counts III and IV must be reversed. Count III is remanded to the trial court for potential prosecution on a lesser included offense.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: AFFIRMED IN PART, REVERSED IN PART, AND REVERSED AND REMANDED IN PART. Smart, Jr., P.J. and Stith, J., concur.

Opinion:

Ray Kelly was charged with four counts of robbery in the first degree, §569.020,¹ and four counts of armed criminal action, section 571.015, based on four offenses committed on July 21, July 31, and August 1, 1995. Prior to trial, Mr. Kelly filed a motion to sever seeking a separate trial on the charges arising from each offense. The trial court denied the motion and the cause proceeded to trial. Mr. Kelly was convicted on all eight counts. Mr. Kelly appealed his convictions claiming that the two counts arising from the July 21, 1995 offense should have been severed from the remaining six counts. State v. Kelly, 956 S.W.2d 922, 923 (Mo. App. W.D. 1997). We found that the offenses had been improperly joined, therefore, we reversed and remanded Mr. Kelly's convictions for a new trial on Counts I and II separate from Counts III through VIII. Id. at 926.

Prior to the new trial, Mr. Kelly again filed a motion to sever, seeking a separate trial as to each remaining robbery charge and its accompanying armed criminal action charge. The trial court granted Mr. Kelly's motion as to Counts III and IV but denied the motion as to the remaining offenses, Counts V through VIII.² Thus, the case proceeded to trial on two counts of robbery in the first degree and two counts of armed criminal action arising out of offenses committed on July 31 and August 1, 1995.

Viewed in the light most favorable to the verdict, the evidence revealed the following. On July 31, 1995, James Winnie, David Allen, and Ken High were working at a 7-11 convenience store at 106th and Blue Ridge in Jackson County, Missouri. At approximately 4:15 a.m., two men entered the convenience store carrying guns. One man was carrying a handgun and he had his face painted red and blue. The other man carried a sawed off shotgun and was wearing a baseball cap with a veil hanging off it to cover his face. The men attempted to open the cash register after ordering the three store employees to lie on the floor. Because they could not get the cash register open, they ordered Mr. Allen to open it. The men took the money from the cash register, took some Newport cigarettes, and ran from the store. The men drove away in a small red compact car.

The next day, at approximately 1:30 p.m. on August 1, 1995, two men entered The Half Price Store located at 8760 Blue Ridge Boulevard in Jackson County, Missouri. They went to the men's department and began quickly taking clothes off the racks without looking at the size, price, or style. The older of the two men, identified as Mr. Kelly on the store surveillance video and at trial, put his pile of clothes down, walked out of the store, got into an old red Honda Civic, and drove the car to a parking spot at the front of the store. Mr. Kelly entered the store again, picked up his pile of clothes, then he and the other man began walking towards the front door of the store.

Amy Fischer Smith was working as a loss prevention agent in The Half Price Store that afternoon and she and another employee tried to stop the men from leaving the store with the merchandise. Mr. Kelly dropped his pile of clothes and started running. Ms. Smith ran outside to the red Honda Civic in an attempt to lock the men out of their car. As she tried to open the car door, Mr. Kelly came up behind her and pointed a .9 millimeter handgun in her face. Ms. Smith backed away when she saw the gun, but Mr. Kelly kept walking toward her as she backed off. The other man approached Mr. Kelly and they both took off running.

On November 17, 1995, Mr. Allen viewed a photographic lineup and identified Mr. Kelly as the man carrying the handgun during the 7-11 robbery. A fingerprint lifted from inside the front door of the 7-11 store was determined to match Mr. Kelly's left ring finger. Mr. Kelly admitted, in an interview, that he stole clothing from the Half Price Store on August 1, 1995, but he denied having a gun or participating in the 7-11 robbery. At trial, Ms. Smith identified Mr. Kelly as the man who put a gun in her face in the parking lot of the Half Price Store. Mr. Allen identified Mr. Kelly as the man wearing red and blue face paint and carrying a handgun in the 7-11 robbery. Officer Bruce Solomon immediately recognized Mr. Kelly as one of the men rapidly gathering clothes at The Half Price Store after viewing the surveillance video of the incident.

After the State presented its evidence, Mr. Kelly moved for a judgment of acquittal at the close of the State's case. The trial court overruled this motion and, without presenting any evidence on his own behalf, Mr. Kelly immediately moved for a judgment of acquittal at the close of all the evidence. This motion was also overruled and a jury found Mr. Kelly guilty of all four charges against him. The Court sentenced him to fifteen years in prison on Count I, first degree robbery, and six years in prison on Count II, armed criminal action, the two sentences to be served concurrently. As to Counts III and IV, Mr. Kelly was sentenced to ten years in prison for Count III, first degree robbery, and three years on Count IV, armed criminal action, with these sentences to likewise run concurrently. But the court ordered that the sentences on Counts I and II run consecutive to the sentences for Counts III and IV. Mr. Kelly appeals.

Mr. Kelly presents two points on appeal. In Point I, he argues the trial court erred in joining counts I and II with Counts III and IV, and abused its discretion in overruling his motion to sever Counts I and II from Counts III and IV. In Point II, Mr. Kelly asserts the trial court erred in overruling his motions for judgment of acquittal at the close of the State's case and at the close of all the evidence, and in accepting the guilty verdicts on Counts III and IV, involving the incident at the Half Price Store. He contends the state's evidence did not prove essential elements of the crimes charged, in particular that he used force or a weapon in the course of taking property from the store.

As a preliminary matter, we take up the State's argument that Mr. Kelly's claim in his Point I that the trial court erred in failing to sever Counts I and II from Counts III and IV is precluded by the law of the case. As noted, supra, Mr. Kelly was originally charged in eight counts, all of which were joined for trial. Prior to his first trial, Mr. Kelly filed a motion to sever Counts I and II from Counts III through VIII. The trial court overruled Mr. Kelly's motion and he was tried and found guilty on all eight counts as charged. On appeal to this court, Mr. Kelly raised only one point of error, that the trial court abused its discretion in refusing to sever Counts I and II from the other six counts. Kelly, 956 S.W.2d at 925. And in that appeal, we agreed with Mr. Kelly's argument, finding that joinder of Counts I and II with the other six counts was improper, and the trial court erred in failing to sever those two counts from the other six. "We therefore reverse[d] and remand[ed] for a trial on Counts 1 and 2 separate from Counts 3 through 8." Id. at 926.

The law of the case doctrine provides that the previous holding in a case constitutes the law of that case and precludes re-litigation of the same issue in a subsequent appeal. State v. Graham, 13 S.W.3d 290, 293 (Mo. banc 2000)(quoting Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 61 (Mo. banc 1999)). The doctrine not only precludes re-litigation of claims that were actually raised in a prior appeal, but also any claims that arose prior to the first adjudication and might have been raised but were not. Id. (quoting Shahan v. Shahan, 988 S.W.2d 529, 533 (Mo. banc 1999)). Pursuant to this doctrine, the failure to raise a claim in a prior appeal means that the court hearing a subsequent appeal need not consider the claim. State v. Johnson, 22 S.W.3d 183, 189 (Mo. banc 2000). But appellate courts do have discretion to consider an issue where there is a mistake, a manifest injustice or an intervening change in the law. Id.

In his...