State v. Luckett, 54320

• Citation: 770 S.W.2d 399
• Decision Date: 11 April 1989
• Docket Number: No. 54320,54320
• Parties: STATE of Missouri, Respondent, v. Willie James LUCKETT, Jr., Appellant.
• Court: Court of Appeal of Missouri (US)

Page 399

770 S.W.2d 399

STATE of Missouri, Respondent, v. Willie James LUCKETT, Jr., Appellant.

No. 54320.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 11, 1989.

Application to Transfer Denied June 13, 1989.

Colleen Dolan, St. Louis, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

GRIMM, Presiding Judge.

In this jury-tried case, defendant appeals his conviction of first degree murder, a class A felony, in violation of § 565.020.1, RSMo 1986. Defendant was sentenced to imprisonment for life without probation or parole. We affirm.

Defendant raises ten points of error. First, the trial court erred in denying defendant's motion to set aside the verdict and his motion for new trial, because the State discriminated in peremptorily striking black venirepersons. We disagree, because the trial court's finding that the State articulated neutral explanations for each of its challenged strikes is not clearly erroneous. Second, the trial court erred in failing to conduct individual, sequestered voir dire of the venire. We disagree, because such an examination is discretionary and the trial court did not abuse its discretion. Third, the trial court erred in denying defendant's motion to quash the first degree murder charge, because the trial court lacked jurisdiction to try defendant on this charge. We disagree, because the trial court had jurisdiction under § 565.001.4(3), RSMo 1986.

Fourth, the trial court erred in admitting mugshots of defendant into evidence, allowing them to be passed to the jury, and allowing them to be taken to the jury room. Fifth, the trial court erred in overruling defendant's motion in limine and in admitting "gruesome" photographs of the victim. Sixth, the trial court abused its discretion in allowing the photographs to be taken into the jury room. As to points four, five, and six, we disagree, because we find no abuse of discretion.

Seventh, the trial court erred in admitting a videotape of defendant's confession into evidence, allowing transcribed excerpts of the confession to be passed to the jury, and allowing that transcript to be taken to the jury room. We disagree. As to the admissibility of the confession, defendant did not preserve his objection based on coercion, duress, and unlawful arrest. Concerning the transcript, the trial court did not abuse its discretion in allowing the jurors to have the transcript while viewing the videotape, and, under the circumstances of this case, allowing the jury to have the transcript in the jury room did not prejudice defendant. Eighth, the trial court erred in allowing a State's witness to testify about defendant's "involvement in a crime not being tried in this case." We disagree, because the evidence was relevant to show motive.

Ninth, the trial court erred in denying defendant's motion for separate juries for the guilt and punishment phases of the trial. We disagree, because separate juries are not authorized. Tenth, the trial court erred in overruling defendant's motion to dismiss the indictment. We disagree, because the indictment properly charged defendant as an accessory.

The evidence showed that the victim, Marilyn Wilkins, and defendant worked at Cristo's, a restaurant in the City of St. Louis. Defendant was fired when the victim reported that he was stealing from the restaurant.

Thereafter, defendant and a friend, Bruce Kilgore, made plans to rob the victim. On August 27, 1986, defendant and Kilgore went to Cristo's and waited for the victim to leave work. When she came onto the parking lot, the two men abducted her and forced her into a car. Defendant held the victim down and Kilgore drove toward Kinloch.

The two men were wearing stocking masks; however, the victim recognized defendant and called his name. Kilgore stopped the car on a dead-end street in a secluded area of Kinloch. While defendant held the victim, Kilgore reached back and removed her rings.

Kilgore told defendant that the victim would have to die since she knew defendant's identity. Kilgore handed defendant a pocket knife. Defendant said, "No. You have to do that." Kilgore pulled the victim out of the car, punched her in the face, and threw her on the ground. When Kilgore told defendant to hold her, defendant said, "Man, go ahead and do what you gotta do." Kilgore stabbed the victim's chest until the knife folded up; then Kilgore cut her throat.

Defendant and Kilgore left the victim's body there, and went to the Continental Manufacturing plant in Hazelwood. There, Kilgore broke the knife and threw it in the weeds.

The following day, defendant and Kilgore agreed that the body was too close to defendant's house. Together, they moved the body to Forest Park, where it was later found.

In his first point, defendant contends that the trial court erred in denying his motion for new trial, because the State purposefully discriminated in striking blacks from the jury. The State used nine of its ten peremptory strikes against black venirepersons. On appeal defendant challenges the State's motive for making four of those strikes.

At a hearing held on this issue, the prosecutor explained his reasons for striking the black venirepersons. Defendant asserts that these reasons were pretextual and unsubstantiated by the record. The trial court found that the prosecutor's reasons were set forth "with sufficient particularity." Further it found that the State's reasons were "other than purely exercising the challenge on the basis of race."

We may not set aside the trial court's findings unless they are clearly erroneous, and due regard shall be given to the trial court's opportunity to judge the credibility of witnesses. State v. Antwine, 743 S.W.2d 51, 66 (Mo.banc 1987). " '[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511 84 L.Ed.2d 518, 528 (1985)). Here, the record substantiates the State's articulated reasons for making its strikes. Thus, the trial court's findings are not clearly erroneous.

Defendant also argues that the State did not strike similarly situated whites. However, as the State pointed out in its brief, the record does not support this argument. The trial court's findings are not clearly erroneous; accordingly the first point is denied.

Defendant next alleges that the trial court erred in failing to conduct individual and sequestered voir dire.

Initially, those venirepersons who indicated they had a legitimate excuse for not serving were individually examined at the bench. Thereafter, the trial court divided the remaining panel into three groups, and voir dire was conducted in these smaller groups of 16 or 18. " 'This procedure was within the trial court's discretion,' " State v. Leisure, 749 S.W.2d 366, 376 (Mo.banc 1988) (quoting State v. Guinan, 665 S.W.2d 325, 329 (Mo.banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984)), and we find no abuse of that discretion. Point denied.

Defendant's third point alleges that the trial court erred in denying his motion to quash the first degree murder count. Defendant argues that the trial court lacked jurisdiction to try him on this charge, because "the crime involved was committed entirely in St. Louis County."

The original indictment alleged that the killing had occurred in St. Louis County, and the City of St. Louis had jurisdiction pursuant to § 541.033, RSMo 1986. The State later filed a substitute information in lieu of indictment which asserted that §§ 541.033 and 565.001.4, RSMo 1986, conferred jurisdiction on the trial court.

Section 565.001.4 provides that persons accused of committing a homicide offense shall be prosecuted:

* * * * * *

(3) In the county in which the body of the deceased victim is found.

"County," as it is used in § 565.001, includes the City of St. Louis. § 1.080, RSMo 1986.

Defendant's motion to quash did not allege that § 565.001.4 is unconstitutional. Rather, it submitted that since all elements of the crime occurred in St. Louis County, the City of St. Louis did not have jurisdiction. To the extent this argument is true, however, it ignores § 565.001.4(3). Since the victim's body was found in the City of St. Louis, the trial court had jurisdiction, pursuant to § 565.001.4(3), to try defendant for first degree murder. Therefore, the trial court did not err in denying defendant's motion to quash. Defendant's third point is denied.

In his fourth point, defendant claims that the trial court erred in admitting mugshots into evidence, allowing them to be passed to the jury, and allowing them to be taken to the jury room. Defendant contends that "these procedures were unduly suggestive because they implicated [him] in other crimes unrelated to this cause."

Prior to trial, a State's witness identified defendant from four mugshots as the man who was with Kilgore at the Continental Manufacturing plant on the night of the murder. At trial, this witness viewed the mugshots again and made an in-court identification of defendant. At the conclusion of the State's case, the mugshots were passed to the jury.

This court has previously held that mugshots "may be admitted and then viewed by the jury when all identifying information is masked, the defendant's identity is in issue and they will help the jury determine the accuracy of the identification." State v. Moore, 726 S.W.2d 410, 413 (Mo.App.E.D.1987).

Here, the four mugshots were admitted into evidence after the trial court noted that "all areas of name and date" were "covered." Further, defendant's identity was in issue at the time the mugshots were admitted and passed to the jury. Although at the bench, defendant offered to stipulate that he was the man the witness had seen on that...