State v. Moody, 12533

• Court: Court of Appeal of Missouri (US)
• Citation: 645 S.W.2d 152
• Docket Number: No. 12533,12533
• Parties: STATE of Missouri, Respondent, v. Cecil MOODY, Jr., Appellant.
• Decision Date: 13 December 1982

Page 152

645 S.W.2d 152 STATE of Missouri, Respondent,
v.
Cecil MOODY, Jr., Appellant. No. 12533. Missouri Court of Appeals,
Southern District,
Division Three. Dec. 13, 1982.
Motion for Rehearing or to Transfer
Denied Dec. 30, 1982.
Application to Transfer Denied
Feb. 23, 1983.

Page 154

King E. Sidwell, Jere L. Hargrove, Blanton, Rice, Gilmore & Sidwell, Sikeston, for appellant.

John Ashcroft, Atty. Gen., Lew A. Kollias, Kristie Green, John C. Reed, Asst. Attys. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

A jury found defendant Cecil Moody, Jr., guilty of violating § 565.004, ¹ "conventional" ² murder in the second degree, and he was sentenced to 30 years imprisonment. Defendant appeals.

Defendant's first point is that the evidence was insufficient to support the verdict. In ruling defendant's contention this court must view the evidence in the light most favorable to the state and accept all substantial evidence and all legitimate inferences fairly deducible therefrom which tend to support the verdict. All evidence unfavorable to the state must be disregarded and the submissibility of the case will be determined upon the basis of all of the evidence, including those portions of defendant's evidence which favor the state. State v. Leach, 633 S.W.2d 754, 755 (Mo.App.1982).

Section 565.004 defines murder in the second degree as follows: "All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide."

Section 565.004, which includes both conventional second degree murder and felony murder in the second degree, remained unchanged with the enactment of "The Criminal Code," which became effective in 1979. See § 556.011. Section 565.004 is not a "code offense." The elements of conventional second degree murder are "the (1) willful, (2) premeditated, (3) killing, (4) of a human being (5) with malice aforethought." A "willful" act is one done "intentionally" or "knowingly." "Premeditation" means "thought of beforehand for any length of time, however short." State v. Mannon, 637 S.W.2d 674 (Mo. banc 1982).

Recklessness is "a part of" manslaughter and recklessness is not sufficient to establish the requisite culpability for conventional second degree murder. The element of intent, required for conviction of conventional second degree murder, is met by proof "that the defendant specifically intend[ed] to kill or specifically intend[ed] to do great bodily harm." That element is a required finding in paragraph "Second" in MAI-CR 2d 15.14. It is not a mere "general intent." Mannon, supra.

Although the court, in Mannon, did not define the requirement of "malice aforethought," that element is discussed in State v. Smart, 485 S.W.2d 90, 93 (Mo.1972). There the court said that "malice" or "malice aforethought," as an element of conventional murder in the second degree, "does

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not mean spite or ill will, but the intentional doing of a wrongful act without just cause or excuse."

The homicide victim was 21-year-old Billy Pullam who died at approximately 4 a.m. on December 6, 1980, as a result of a gunshot wound inflicted by the defendant. Billy had spent the evening of December 5 at a cafe-pool hall which was owned by Paul Wilcox and was located at Braggadocio, Missouri. Billy's companions in a pool game were Wilcox and two teenage boys, Brad Pickens and Gary Riddick. At approximately 1 a.m., December 6, these four people went to the Curtis Cafe in Hayti, Missouri, 10 miles from Braggadocio. After they had been in the cafe a few minutes the defendant arrived, accompanied by a woman named "Dee Dee" Duszcyak, and that couple sat down at a nearby table.

An argument developed between defendant and Billy. Defendant accused Billy of staring at defendant and his companion and defendant said to Billy, "Do you see something over here you want?" In a few minutes defendant and Dee Dee were joined by Johnny Mitchell and Kathleen Lee. The argument continued and at one point defendant arose and started toward Billy's table but then returned to his own table.

Billy's group finished their meal and while they were paying their checks defendant and Mitchell went outside the cafe to await them. Gary and Brad left the cafe unmolested but when Billy and Wilcox went out, the argument with defendant and Mitchell resumed. Police were summoned and they came to the scene. The argument was broken up and Billy and his companions returned to Braggadocio, arriving there at approximately 2 a.m.

Paul Wilcox, one of Billy's companions, owned a service station located at the southeast corner of the principal intersection in Braggadocio, a town with a population of approximately 250. At the northwest corner of the intersection was the trailer home of witness Russell Darnell.

Upon their arrival in Braggadocio Billy and the two teenagers dropped Paul Wilcox at his house which was located about 100 yards south of the service station. Billy, Brad and Gary then went to the service station and the three of them got into Billy's truck which was parked there. The trio remained there, talking, for an hour or so until the happening of the fatal events.

Defendant and his three companions drove to Braggadocio in defendant's Cougar. Dee Dee was driving and defendant sat on the passenger's side of the front seat of the two-door Cougar. Kathleen Lee and Mitchell were in the back seat. Upon their arrival in Braggadocio defendant's group saw Billy and the two boys at the service station. Defendant instructed Dee Dee to drive to Caruthersville which was 12 miles from Braggadocio. He told her to go to the house of Dallas Taylor in Caruthersville and Dee Dee complied. Defendant testified that the purpose in going to Caruthersville was that "I wanted to bring Dallas out there so we could even up the odds."

Upon arriving in Caruthersville defendant went into Taylor's house and found that Taylor was not home. Defendant obtained there a 30-caliber lever-action Winchester rifle, the murder weapon. Defendant's group then returned to Braggadocio.

Dee Dee drove the Cougar onto the parking lot of the service station. Kathleen Lee and Mitchell got out of the Cougar through the driver's door. Kathleen went up to the truck containing Billy and the two boys. Billy was in the driver's seat. Kathleen said, "Come on, get out, we are going to fight, the driver is the one we want." Billy said, "I don't want any trouble." Mitchell began removing his coat. Dee Dee and the defendant were still in the Cougar.

Billy immediately "started to leave fast." The truck, driven by Billy, started to go north and then made a U-turn, "like it spun," and went south. The truck was "fishtailing" in the process of its rapid departure.

While the truck was entering the north-south highway, departing from the scene, a single shot rang out. Defendant was then outside the truck and the rifle was in his hand. None of his companions was near

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him. The bullet struck the tailgate of Billy's truck, a pickup, continued on its trajectory into the cab of the truck and struck Billy in the back. This occurred when defendant was approximately 75 feet from the departing truck.

Awakened by the shot, state's witness Russell Darnell went to the window of his trailer, looked toward the service station, and saw "a man" down on his knees. The man had a rifle in his hand and he had the rifle "up," pointed southwest.

Brad, who was seated in the middle of the truck, grabbed the steering wheel and drove to the yard of the nearby Wilcox house. Billy left the truck and collapsed on the porch of the house. His death occurred almost immediately thereafter.

Defendant, testifying on his behalf, denied getting the rifle in Caruthersville. The testimony of his three companions supported the finding, however, that the murder weapon was obtained by him at Caruthersville and indeed may have been the purpose of going there. Dee Dee...