State v. Mitchell

• Decision Date: 14 July 1998
• Docket Number: No. 21770,21770
• Citation: 975 S.W.2d 191
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerry Lee MITCHELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 191

975 S.W.2d 191

STATE of Missouri, Plaintiff-Respondent, v. Jerry Lee MITCHELL, Defendant-Appellant.

No. 21770.

Missouri Court of Appeals, Southern District, Division Two.

July 14, 1998.

Motion for Rehearing and Transfer

Denied Aug. 5, 1998.

Application to Transfer Denied

Sept. 22, 1998.

John M. Schilmoeller, Asst. Public Defender, St. Louis, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Neff, Asst. Atty Gen., Jefferson City, for plaintiff-respondent.

BARNEY, Judge.

Jerry Lee Mitchell (Defendant) appeals from a jury verdict which found him guilty of first degree murder. ¹ The Circuit Court of Christian County sentenced Defendant to the Missouri Department of Corrections for a term of life without eligibility for parole or probation. We affirm.

Defendant challenges the sufficiency of the evidence to support his conviction for first degree murder. This Court is required to review the facts, evidence and all reasonable inferences therefrom in the light most favorable to the verdict. State v. Butler, 951 S.W.2d 600, 604 (Mo. banc 1997). We reject all contrary evidence and inferences. Id. This Court neither weighs the evidence nor determines its reliability or the credibility of witnesses. State v. Myszka, 963 S.W.2d 19, 22 (Mo.App.1998). The scope of our review is narrowed to a determination of whether the jury had substantial evidence from which to find Defendant guilty beyond a reasonable doubt. Butler, 951 S.W.2d at 604; State v. Bowens, 964 S.W.2d 232, 236-37 (Mo.App.1998); State v. Bright, 963 S.W.2d 423, 429 (Mo.App.1998). "Substantial evidence is evidence from which the trier of fact reasonably can find the issue in harmony with the evidence." Myszka, 963 S.W.2d at 22.

To make a submissible case of first degree murder the State is required to prove beyond a reasonable doubt that the defendant "knowingly cause[d] the death of another person after deliberation upon the matter." State v. Beishline, 926 S.W.2d 501, 510-11 (Mo.App.1996); State v. Howard, 896 S.W.2d 471, 480 (Mo.App.1995). ²

On August 9, 1996, John Wheeler was shot and killed by Defendant in Taney County, Missouri. ³ Defendant emptied the chamber of his .22 caliber semi-automatic Marlin rifle during the course of the shooting. Fifteen bullets entered John Wheeler's body.

Prior to the shooting, Defendant, John Wheeler and James Sparling were at Defendant's home, located at Rockaway Beach, Missouri. Defendant's wife and two-year-old son were also present. Defendant and Mr. Wheeler did not know each other before the night of the shooting. Mr. Sparling was acquainted with Defendant for several years and was acquainted with Mr. Wheeler for approximately two months. Mr. Sparling and Mr. Wheeler arrived at Defendant's residence together. During the course of the evening, Defendant and Mr. Wheeler consumed at least 12 beers between them. Mr. Sparling did not drink any alcohol.

During the early evening hours, Defendant and Mr. Wheeler exchanged stories of bravado relating to their toughness. The three men appeared to be enjoying each other's company.

Later in the evening, the three men exited Defendant's home and began working on the brakes of Mr. Sparling's vehicle in the driveway. Defendant was performing most of the work. While Defendant was working on the brakes, he became frustrated with the performance of an automotive tool. Defendant decided to take a break from working on the vehicle and went inside his home.

While inside his home, Defendant made the decision to confront his wife concerning an alleged affair she was having with another man. This confrontation led to yelling between Defendant and his wife and to Defendant breaking a glass-top table. Defendant also broke a glass chandelier. Defendant's wife yelled out for Mr. Sparling's assistance in restraining Defendant. Mr. Sparling and Mr. Wheeler then went inside. Defendant's wife also yelled to fifteen-year-old Dean Rehm, who was also present outside, to come inside to get her two-year-old son.

After entering the residence, Mr. Wheeler apprehended Defendant. Mr. Sparling testified that "[i]t basically started out as some pushing, and then it proceeded into like a wrestling match." The wrestling lasted approximately 15 to 20 minutes before Mr. Sparling was able to stop it. Mr. Sparling separated the two men after he saw that Defendant was preparing to stab Mr. Wheeler with a piece of broken glass. Mr. Wheeler did suffer a "[a] couple of deep gouges in his back."

Mr. Sparling told Mr. Wheeler "[l]et's go outside. It's not worth it." They went outside. Defendant yelled out to Mr. Sparling to "get [Mr. Wheeler] off my property. I'm going to kill him." Mr. Wheeler heard this and began to go back up the steps of the deck but Mr. Sparling was able to stop him. Mr. Sparling told Mr. Wheeler to "[g]o to the truck." The two then began walking toward the truck, away from Defendant. Mr. Sparling testified that the "fight" had been concluded for about 5 minutes. Just before reaching the truck, Mr. Sparling heard Defendant's wife say to Defendant "[o]h, my God, ... don't."

Mr. Sparling testified that "[t]hat's when I looked up and seen [Defendant] bringing the rifle up to scope it in." Defendant then began firing toward Mr. Wheeler. Mr. Sparling testified that Defendant was firing "[a]s fast as he could pull the trigger...." While firing, Defendant was aiming through his rifle's scope and walked to the railing on the deck, rested his arm on the railing and continued to shoot. Mr. Wheeler was then about 10 to 15 feet from Defendant.

Mr. Sparling testified that after the third or fourth shot, Mr. Wheeler "sat down, physically sat down himself and laid down and crossed his legs." Mr. Wheeler never moved again. Mr. Sparling stated that while outside and prior to the shooting, Mr. Wheeler made no offensive gestures or movements toward Defendant. Mr. Wheeler was also unarmed.

After emptying the chamber of his rifle into Mr. Wheeler, Defendant went inside his home and retrieved a pistol. Defendant then began firing the pistol toward Mr. Wheeler and said "I've got to make sure he is dead." Defendant then aimed the pistol toward Mr. Sparling and Mr. Sparling said to Defendant " 'please don't,' and I don't know what [Defendant] said, but he acknowledged me." Defendant then went inside his home and called 911.

Taney County Deputy Sheriff Roger Gibson arrived at the scene at approximately 10:30 p.m., arrested Defendant and determined that Mr. Wheeler was indeed deceased. Defendant acknowledged to Deputy Sheriff Gibson that Mr. Wheeler was unarmed during the course of the shooting, nor did he have a club or stick in his hands and that "he didn't make a fist."

Dr. James Spindler is the Greene County Medical Examiner. Dr. Spindler performed an autopsy on Mr. Wheeler's body on August 11, 1996. Dr. Spindler noted that Mr. Wheeler was 5 feet 5 inches tall and weighed approximately 130 pounds. Dr. Spindler confirmed that there were 15 entry wounds and three exit wounds on Mr. Wheeler's body. Dr. Spindler also noted:

The wounds on the body were in two main areas. One was a cluster of wounds on the right side of the chest, the victim's right side. There were five total, two in the neck, three in the chest. Then, there was a group of about eight on the left side of the chest, the arm, and in the arm-pit area.... The back showed one exit wound. * * * So, there's really two groups of wounds, one on the right side of the chest, one on the left side of the chest, the arm, and the arm-pit area.

Dr. Spindler stated that the injuries to Mr. Wheeler's arm-pit area were probably caused by Mr. Wheeler putting his arm up to protect himself from the bullets. All of the entry wounds indicated that the Defendant was shooting at a downward angle toward Mr. Wheeler. Dr. Spindler noted that Mr. Wheeler died from massive blood loss, from one of the bullets penetrating his heart, and from one bullet penetrating his aorta blood vessel. Dr. Spindler noted that approximately five of the entry wounds were fatal and at least six others were "potentially-fatal injuries."

Defendant testified and presented five witnesses. Defendant testified that he shot Mr. Wheeler in self-defense. Defendant testified that after the conclusion of his fight with Mr. Wheeler, he went to his bedroom and retrieved his rifle, walked out on his deck and told his wife to call 911. Defendant testified that Mr. Wheeler said " '[l]ike hell you're calling the cops on me,' and started back after me." Despite holding a rifle in his hands, Defendant stated that "I was scared because I knew if he got ahold [sic] of me he would kill me." Defendant testified that "I threw the gun up and just started shooting. I couldn't tell if I was hitting him or not." Defendant stated that he walked back inside his home and retrieved his pistol but did not fire it. Defendant then called 911.

The State submitted the case to the jury on the theory that Defendant was guilty of first degree murder. The jury was instructed, however, on first degree murder, second degree murder, voluntary manslaughter, and self-defense. On May 14, 1997, the jury found Defendant guilty of first degree murder. On July 1, 1997, the trial court followed the jury's recommendation and sentenced Defendant to life in prison without eligibility for parol or probation. On appeal to this Court, Defendant assigns three points of trial court error. For the sake of clarity, we address Defendant's assignments of error out of the order presented in his brief.

I.

We address Defendant's third assignment of error first. Defendant avers that the trial court erred in overruling his motion for acquittal at the close of the State's evidence and in submitting the case to the jury and in accepting the jury's verdict. Defendant maintains that the State failed to make a submissible case on the charge of first degree murder because the State failed to produce sufficient evidence from which...