State v. Kohser

• Decision Date: 30 April 2001
• Citation: 46 S.W.3d 108
• Parties: (Mo.App. S.D. 2001) State of Missouri, Plaintiff/Respondent v. Jack E. Kohser, Defendant/Appellant. 23707 0
• Court: Missouri Court of Appeals

46 S.W.3d 108 (Mo.App. S.D. 2001)

State of Missouri, Plaintiff/Respondent v. Jack E. Kohser, Defendant/Appellant.

23707

Missouri Court of Appeals Southern District

04/30/2001

Appeal From: Circuit Court of Dent County, Hon. Jack L. Koehr

Counsel for Appellant: Tyce S. Smith

Counsel for Respondent: Breck K. Burgess

Opinion Summary: None

Parrish, P.J., and Montgomery, J., concur.

Kenneth W. Shrum, Judge

Jack E. Kohser ("Defendant") appeals his conviction of second-degree murder under section 565.021.¹ After a bench trial, the court sentenced Defendant to twenty-five years' imprisonment for his role in the murder of Billie Joe Baker ("Victim"). On appeal, Defendant asserts various claims of trial court error regarding lack of notice of the crime for which he was convicted and insufficient evidence to support the conviction. We find no error. We affirm.

STATEMENT OF FACTS

Sometime in 1996, Defendant became friends with Shane Duncan ("Duncan"), Aric Dotson ("Aric"), and Julia Givens ("Givens"). Defendant was a high school drop-out who held various jobs for a "couple of months" at a time, and he was "basically still living off [his] parents," residing in their basement at the time of the crime. Duncan "just sort of showed up" and began living at Defendant's parents' home as well. The four friends frequently "hung out" in the basement during the day, and sometime in November of 1996, a scheme was devised in which the four would rob Victim, who was Givens' uncle.

On November 14, the plan came to fruition when the group drove to Victim's home in Salem, Missouri, in Defendant's mother's car. Givens had lived with Victim for a period and knew he kept a safe in the home. Givens told the three friends the safe held "seventy some thousand dollars." Initially, the plan was for Givens to lure Victim away from his house, and then Defendant, Duncan, and Dotson were to break in and steal the safe. This scheme was abandoned because Givens did not feel comfortable being alone with her uncle. The group's next contrivance was to break into the house when Victim was not there and take the safe. Their attempts to enter the house were unsuccessful, and the four went back to Defendant's home in Rolla, Missouri.

Later that afternoon, the foursome "got high again and then [they] did some cocaine." At this point, the group hatched the third plot to accomplish their sinister goal. The testimony at trial differed regarding the details of this plan. Givens testified the plan was to rob Victim, then kill him and bury him in the woods. Her memory was unclear because she was using marijuana, PCP, heroin, and cocaine at the time. She testified the group obtained shovels to bury Victim and a hammer to kill victim from Defendant's shed. Defendant and Dotson testified there were no shovels because the foursome had never intended on killing Victim. They testified their plan was to knock Victim unconscious and take the safe. The testimony from each regarding the use of a hammer to hit Victim in the head was uncontradicted. A small hammer, eight inches in length with a metal head approximately the size of a soda can, used to break rock, was obtained from Defendant's shed. This was to be used to hit Victim over the head.

Defendant drove the group to Salem and parked at a church near Victim's house. They told Victim they had car trouble, and Victim let them into the house. As the group and Victim were sitting in the living room watching television, Duncan stood up, crushed out his cigarette, and hit Victim over the head with the hammer. Victim was hit at least twelve times in the head by either Duncan or Dotson, or both. The safe was taken from the house, and Victim was left on the couch in the living room. The group then took Victim's car and drove to St. Louis. They also took Defendant's mother's car. Upon reaching St. Louis, they abandoned Victim's car. Givens testified that during this trip Defendant repeatedly played a "gangster rap" song by "Snoop Dog" containing lyrics about murder, and then "turned his hat a certain way" as a "gangster's way of expressing himself" to represent he had participated in a murder.

After abandoning Victim's car in St. Louis, the group returned to Defendant's home in Rolla. The safe was then unloaded into Defendant's shed where it was opened and the money split between Defendant, Duncan, and Dotson. Later, the safe was thrown into a river. Found in Defendant's closet were two guns stolen from Victim, and papers previously kept in the safe. All four were arrested and charged with first-degree murder. Defendant, who was tried separately, waived his right to a jury trial, and the court found him guilty of second-degree murder.

Defendant concedes in his brief that his motion for new trial was not timely filed as prescribed by Rule 29.11.² The time limitations contained in that rule are mandatory. State v. Yates, 982 S.W.2d 767, 769[2] (Mo.App. 1998). Failure to follow the time prescriptions results in the motion preserving nothing for appellate review, and we can consider the cause only as to issues deemed plain error. Id. at 769[1].

Rule 30.20 (2001) describes the appropriate standard of review in criminal cases involving plain error: "[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Relief under the rule will only be granted if a defendant can show the action of the trial court was not only erroneous, but also the error so substantially impacted his rights that manifest injustice or miscarriage of justice will inexorably result if the error is left uncorrected. State v. Smith, 979 S.W.2d 215, 217[1] (Mo.App. 1998). Plain errors are those which are evident, obvious, and clear. State v. Scurlock, 998 S.W.2d 578, 586[8] (Mo.App. 1999). Appellate courts' discretion to reverse a conviction based on the plain error rule should be used sparingly. State v. Santillan, 1 S.W.3d 572, 578[4] (Mo.App. 1999).

POINT I: "NOTICE" OR "REQUEST"--SECOND-DEGREE MURDER SUBMISSION

Defendant's first point on appeal maintains:

"The trial court erred in convicting . . . of second degree murder because [Defendant] was not given notice of the lesser included offenses [of first degree] as neither the parties or the court requested that the court consider second degree murder conventional or . . . felony as a lesser included offense . . . ."

Turning to the argument section of his brief, the essence of his claim is that he did not have notice that he could be convicted of a lesser homicide because no request was made by the state, Defendant, or the court to have the court consider conviction on the lesser offense. Defendant premises this argument on two statutes: sections 565.025.3 and 565.021.3. In pertinent part, section 565.025.3 provides that "[n]o instruction on a lesser included offense shall be submitted unless requested by one of the parties or the court." (Emphasis supplied.) Similar language is found in section 565.021.3 as follows:

"[I]n any charge of murder in the second degree, the jury shall be instructed on, or, in a jury-waived trial, the judge shall consider, any and all subdivisions in subsection 1 [provisions for conventional and felony second degree murder] of this section which are supported by the evidence and requested by one of the parties or the court." (Emphasis supplied.)Defendant interprets the italicized request language to mean that an accused could never be convicted of a lesser homicide unless a proper request was made by a party or the court. Apparently, Defendant views the request contemplated by the statutes as a prerequisite to adequate notice. We disagree.

The purpose of the request for a second-degree murder submission under the statutes cited is not to give Defendant notice of the crime charged. If a request for a second-degree submission was designed to give an accused notice of the second-degree submission, the request would have to be made before any evidence was adduced. This follows because the purpose of notice is to allow a defendant time to prepare an adequate defense. State v. Blankenship, 830 S.W.2d 1, 13 (Mo. 1992); State v. Mace, 357 S.W.2d 923, 925[3] (Mo. 1962). Defendant's analysis is not only illogical and unworkable, but is contradicted by the plain language of section 565.021.3. The statute provides that a judge shall consider the subdivisions of subsection 1 "which are supported by the evidence." (Emphasis supplied.) This italicized language from section 565.021.3 merely suggests the obvious, namely, neither the state nor an accused could make an informed request for a second-degree murder submission until all evidence has been adduced. Similarly, a trial court could never make an informed decision to submit second degree on its own motion until all evidence had been presented. On the other hand, notice of the possibility of such a submission could only be meaningful for an accused if the notice came before trial so the accused could prepare.

Similarly, we note that the requirement for a request under section 565.025.3 has nothing to do with notice. This statute was enacted to change the rule of "automatic submission" of lesser homicide offenses announced in State v. Stapleton, 518 S.W.2d 292 (Mo.banc 1975). State v. Stribling, 721 S.W.2d 48, 50[1] (Mo.App. 1986). "Trial courts are not obligated to instruct on lesser-included offenses unless there is a basis [in the evidence] for the jury to: 1) acquit the defendant of the offense charged, and 2) convict the defendant of the included offense." State v. Hibler, 5 S.W.3d 147, 148 (Mo.banc 1999); section 556.046 (emphasis supplied).

An examination of the relevant Notes on Use for MAI-CR3d. 313.00 shows that the court here acted properly. Specifically, Note 4 states the instruction for felony-second-degree murder will be given if proper notice was given by the state, justified by...