State v. Lockheart

• Decision Date: 23 February 1988
• Docket Number: No. WD,WD
• Citation: 757 S.W.2d 221
• Parties: STATE of Missouri, Respondent, v. John LOCKHEART, Appellant. 39209.
• Court: Missouri Court of Appeals

Page 221

757 S.W.2d 221

STATE of Missouri, Respondent, v. John LOCKHEART, Appellant.

No. WD 39209.

Missouri Court of Appeals Western District.

Feb. 23, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 29, 1988.

Kevin P. Rotert, Liberty, for appellant.

William L. Webster, Atty. Gen., Scott L. Templeton, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, C.J., and NUGENT and BERREY, JJ.

KENNEDY, Chief Judge.

Defendant was convicted upon jury trial of second-degree murder, § 565.021.1(2), RSMo 1986. In pursuance of the jury verdict, he was sentenced to 10 years' imprisonment.

He appeals, claiming instructional error and error in the admission of evidence. We affirm.

Defendant, along with three companions, drove to a public park in Gracemore in the small hours of the morning of January 26, 1986, for a prearranged meeting with David Wayne Carlson. The purpose of the meeting was to continue an altercation between defendant and Carlson which had commenced earlier at a 7-11 store parking lot, and which had been interrupted by the arrival of a police car.

Among the three passengers in defendant's car was Robert Reyes, who was seated in the back seat on the passenger side. Reyes had a shotgun. On their way from the 7-11 store to the park, defendant drove by his (defendant's) house. There is testimony that he secured a shotgun, and other testimony that he already had a shotgun in the car. In any case, he did have a shotgun when they arrived at the park.

When defendant and his companions arrived at the park, Carlson and his four companions were already there. Carlson, who was larger and stronger than defendant, with a reputation as a fighter, challenged defendant to get out of the car, and attempted to open the driver's door. He reached into the driver's open window and was striking defendant.

Reyes, seated in the back seat of defendant's car, thrust his loaded shotgun out the driver's window. Carlson may have seized the barrel and pulled it toward him--but, however it happened, the gun discharged and killed Carlson.

The case against defendant was submitted upon two charges--being an accessory to conventional second-degree murder and being an accessory to second-degree felony murder. The underlying felony of the second-degree felony murder charge was the unlawful use of a weapon, § 571.115, RSMo 1978. He was convicted, as noted, of second-degree felony murder.

Defendant's first point on appeal is that the verdict-directing instruction contained a prejudically erroneous deviation from MAI 3d 304.04. The verdict-directing instruction, Instruction No. 7, reads as follows:

If you do not find the defendant guilty of murder in the second degree, as submitted in Instruction No. 6, you must consider whether he is guilty of murder in the second degree under this instruction.

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

First, that Robert Reyes committed unlawful use of a weapon, as submitted in Instruction No. 9, and

Second, that Robert Reyes caused the death of David Wayne Carlson by shooting him, and

Third, that David Wayne Carlson was killed as a result of the perpetration of that unlawful use of a weapon, and

Fourth, that Robert Reyes did not act in lawful defense of another person as submitted in Instruction No. 10,

then you are instructed that the offense of murder in the second degree as submitted in this instruction 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 murder in the second degree the defendant aided or encouraged Robert Reyes in committing that offense,

then you will find the defendant guilty of murder in the second degree, as submitted in this instruction.

... (Italics ours.)

The error, defendant says, is in the paragraph beginning "Fifth", which we have italicized above. He says that it should have hypothesized defendant's purpose to promote and further the commission, not of murder in the second degree, but of the underlying felony of unlawful use of a weapon. He cites cases which hold that the intent required of an accessory in a felony murder case is only the intent to aid or encourage the commission of the underlying felony and not the intent to commit the killing. State v. Norwood, 721 S.W.2d 175 (Mo.App.1986); State v. O'Dell, 684 S.W.2d 453 (Mo.App.1984). Defendant says that the jury could have understood this paragraph to have the same meaning as the identical paragraph which appeared in the conventional second-degree murder instruction.

We conclude, however, that there was no possibility of any jury confusion on this point. Instruction No. 7 in...