State v. May

• Decision Date: 07 August 1979
• Docket Number: No. 39640,39640
• Citation: 587 S.W.2d 331
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ronald B. MAY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 331

587 S.W.2d 331

STATE of Missouri, Plaintiff-Respondent, v. Ronald B. MAY, Defendant-Appellant.

No. 39640.

Missouri Court of Appeals, Eastern District, Division Two.

Aug. 7, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 17, 1979.

Richard Fredman, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, St. Louis, for plaintiff-respondent.

STEWART, Judge.

A jury convicted defendant of manslaughter in the death of Ernest Whitfield. He was sentenced by the court to ten years imprisonment under The Second Offender Act § 556.280 RSMo 1969.

On this appeal defendant contends that (1) the evidence was insufficient to submit the cause to the jury; (2) the court erred in permitting a State's witness to testify to threats made to her because the threats were not linked to defendant; (3) the court erred in refusing to permit defendant to call a witness in surrebuttal; and (4) in refusing to give an instruction on self-defense.

The first issue requires an extensive statement of the facts. In determining the sufficiency of the evidence we review the evidence, direct and circumstantial, in the light most favorable to the State including all favorable inferences that can be drawn from that evidence and ignore all evidence and inferences to the contrary. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977).

Ernest Whitfield, and his wife Juanita, lived at 4422 Maffitt, apartment 19 in the City of St. Louis. Their daughter Wanda and her infant daughter lived in apartment 15 which was close to her parents' apartment. ¹ The walls in the apartments were thin. Sounds in Wanda's apartment could be heard by her parents if they were in the bathroom or the kitchen. As we read the testimony one enters the apartments by the kitchen. The apartments 19 and 15 are on the first floor. The front doors open from the kitchen onto an outside courtyard.

Mr. Whitfield's son, Michael, who was similar in appearance to his father, lived in an apartment on Newstead Avenue just around the corner from his parents. Michael had permitted a person named J. J. to sell narcotics out of his apartment. Houston Pridgett had been living with Wanda and was making sales of narcotics from her apartment.

About a month before Mr. Whitfield was killed Michael Whitfield was stopped on the street by defendant and his nephew Gary Mayes (sic). Defendant told Michael " 'Get them niggers out of your house before I come up there and blow everybody out of there, and you can go tell your sister to get them niggers out of their house.' " Three days before the shooting defendant "paid a visit" to Pridgett at Wanda's apartment and in Wanda's presence told Pridgett "You can't sell no drugs around here." Pridgett told defendant that he would sell drugs wherever he wanted. Wanda told defendant that he wouldn't have to come to her house to look for Pridgett because Pridgett would not be staying there. Later Wanda asked Pridgett to leave her house and he did.

On December 16, 1976 between 8:30 and 9:00 PM Wanda's sister, Hortense, and Wanda's infant daughter were leaving Wanda's apartment when defendant along with Steve Moore, Gary Mayes, James Scott and a fifth person, whom Wanda said she did not know, approached the apartment. Moore entered the apartment and asked Wanda how she was doing. Moore then started out the door as defendant was about to enter. Moore told defendant " 'Ain't nothing happening, man. Ain't nothing happening.' " Defendant then pushed Hortense back into the house and "Bogarded" ² his way into the apartment. He was followed by the unknown male. There is some indication that this person was Jimmy Sharp, one of defendant's "lieutenants". All three were armed. Gary Mayes and James Scott stayed outside the door.

Defendant asked Wanda where Pridgett was and where the guns were. When she told him she didn't know he pushed her in the closet and started kicking her in the abdomen. He was slapping her as he told her she was lying; that she knew where Pridgett was and told her to find the guns. Hortense started screaming during the scene. Defendant took Wanda into the living room and made her take the couch apart to show there was nothing in it. At this time two shots were fired outside the door. The three men who were in the apartment ran out the door and after they got outside about ten more shots were heard. After the shooting stopped Wanda looked out the door and saw her father lying on the ground and the five men running away.

Defendant, Steve Moore and Jimmy Sharp were next seen as they ran into defendant's pool hall on Newstead Avenue at the alley between Maffitt and St. Louis Avenues. Defendant and Steve Moore had pistols that they put in a drawer under the cash register. Defendant told Sharp to have everyone leave and to close up the pool hall. Defendant, Moore and Sharp then got into a car and drove east on St. Louis Avenue.

Mr. Whitfield, before being found outside had been in his apartment. He was watching television in the living room-bedroom portion of the apartment while his wife was lying in bed. He left the room for the kitchen or bathroom, an area where sounds from the adjoining apartment can be easily heard.

The victim suffered multiple shotgun wounds of the right side of the body with through-and-through wounds of the right arm, a fracture of the right humerus and penetrating wound of the right chest which entered into the medius sternum and then caused a large wound of the anterior wall of the heart. The primary cause of death was a large destructive wound in which the front of the left and the right side of the heart was essentially blown away. It was the opinion of the medical examiner that the latter injury was caused by a shotgun blast.

There was a bullet hole found in the floor of the victim's apartment. It had entered the door from the outside. A cabinet in the kitchen was dented by a projectile. Seven shotgun shells were found at the scene, two were live and five had been fired. A reading of the transcript without the aid of the photographs used at the trial does not give a clear picture of the location of the evidence seen and found during the investigation of the crime.

Defendant argues that the evidence "failed to link (defendant) or any of his co-defendants with a shotgun and failed to establish that (defendant) was acting in concert with anyone who sought to cause the death of deceased."

It is not necessary to show defendant's participation in the crime by direct evidence nor is the State required to prove that defendant personally committed the acts constituting all of the essential elements of the crime in those cases where one aids and abets in the commission of a crime. State v. Dodson, 556 S.W.2d 938, 950 (Mo.App.1977). Proof of the commission of a crime may be by way of circumstantial evidence provided the facts and circumstances are consistent with each other and with the hypothesis of defendant's guilt. They must also be inconsistent with and exclude every reasonable hypothesis of his innocence. The circumstances do not have to be absolutely conclusive of guilt nor do they have to demonstrate the impossibility of innocence. The existence of other possible hypotheses is not sufficient to remove the case from the jury. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977). While flight is a circumstance to be considered against an accused in connection with other evidence, presence and flight alone are insufficient to sustain a conviction. State v. Mason, 506 S.W.2d 458 (Mo.App.1974).

In the case at bar we do not have mere presence of the defendant at the scene. Defendant, accompanied by his nephew Gary, had made threats to Michael Whitfield concerning persons selling drugs from Michael's apartment and told him to tell Wanda to get Pridgett out of her apartment. Defendant also went to Wanda's apartment and ordered Pridgett out. On the night of the crime defendant came to Wanda's apartment to get Pridgett and guns that he thought were in the apartment. The jury could readily find that he was accompanied by the four other persons who were with him. The fact that they were armed indicated that they would shoot anyone who would interfere with them. See State v. Adams, 98 S.W.2d 632, 636 (Mo.1936). Two of the men with defendant including Gary, who was with him when he threatened Michael, remained outside when defendant "Bogarded" his way into the apartment. These men gave all the appearances of protectors or bodyguards of defendant. It was about the time defendant was assaulting Wanda and when Hortense was screaming that the first two shots were fired. The jury could find that Mr. Whitfield heard the sounds in his daughter's apartment and went to investigate. When the shots were fired defendant went outside. After he was outside ten more shots were fired. After the shooting ceased defendant and the others were seen running from the scene. No other persons were seen in the vicinity of the crime. Defendant was next seen at his pool hall with Moore and Sharp when he and Moore concealed weapons under the cash register and defendant ordered the pool hall closed. The primary cause of Mr. Whitfield's death was shotgun wounds. There was, however, evidence that other weapons had been used because of the through-and-through wounds and the fracture of the arm; a total of about twelve shots were fired and only five spent shotgun shells were found. There is sufficient evidence of a circumstantial nature to warrant submission of the cause to the jury as to defendant's connection with the other persons present. In fact, all of the facts indicate that defendant was in command of the group. The fact that the shotgun was not found and that there were no eye-witnesses to the discharge of the shotgun is of no consequence when we consider that there were no other persons in the immediate vicinity of the crime. ...