State v. Morris, s. 17365
| Decision Date | 08 December 1992 |
| Docket Number | Nos. 17365,17949,s. 17365 |
| Parties | STATE of Missouri, Plaintiff-Respondent v. Danny Lee MORRIS, Defendant-Appellant. Danny Lee MORRIS, Plaintiff-Appellant v. STATE of Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Columbia, for appellant.
William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Danny Morris (defendant) guilty of murder in the first degree. § 565.020. 1 He was sentenced to imprisonment for life without eligibility for probation or parole. He thereafter filed a Rule 29.15 motion for post-conviction relief. That motion was denied following an evidentiary hearing. Defendant appeals from the judgment of conviction and from the order denying his Rule 29.15 motion. Those appeals were consolidated in accordance with Rule 29.15(l ). This court affirms.
During the early hours of April 26, 1990, defendant was at a location in New Madrid, Missouri, near Russell Street. Other people were nearby. Some had firearms. Defendant had a sawed-off shotgun.
Derrick Taylor was across the street from defendant. Taylor had a pistol. He fired it, "[h]e shot up in the air." Defendant "pulled up his gun." He pointed it but did not fire it.
Phinezy Johnson was down the street from where Taylor and defendant were when Taylor fired his weapon. Johnson walked north toward Taylor and defendant. Johnson had a rifle. He stood in front of Hazel's Place, a tavern that had closed a short time earlier. He said, "I'll show you how to make all y'all m_____-f_____ scatter." He began firing his rifle, backing away from the street. He continued firing the rifle "until it was empty."
When Johnson began firing his rifle, the people along Russell Street began running. Alvin Jackson had been talking with some girls. Jackson ran to the west between Hazel's Place and a house trailer.
Sandra Triblett was standing in front of Hazel's Place when the shooting began. She saw Johnson back alongside Hazel's Place while he continued to fire his rifle. She "couldn't move 'cause he was shootin' out toward the street." After the shooting stopped, she ran down the street and bent down behind a car. She "raised back up" and saw Dorothy Jackson, Johnson's girlfriend. Dorothy Jackson was looking toward the direction where Johnson was standing. Ms. Triblett testified that she also saw Alvin Jackson and defendant. They were behind Hazel's Place. She testified that defendant aimed his gun and fired at Alvin Jackson; that Alvin Jackson fell.
Dorothy Jackson (no relation to Alvin Jackson) testified that she met Phinezy Johnson and defendant after the shooting stopped; that defendant said "that he had shot Alvin Jackson in the head." Phinezy Johnson and Dorothy Jackson went to her residence. Defendant did not accompany them at that time, but came there later.
Defendant testified. He denied shooting Alvin Jackson. He said that he found a sawed-off shotgun the morning of the shooting; that the shotgun was laying on the ground alongside Hazel's Place. He testified that he did not fire the shotgun; that he later dropped it alongside Hazel's Place. He denied that he told Dorothy Jackson that he shot Alvin Jackson.
Defendant's first point on appeal asserts that there was insufficient evidence to sustain his conviction for murder in the first degree. Particularly, defendant claims that the state "failed to prove that [defendant] caused the death of Alvin Jackson after deliberation."
In reviewing defendant's conviction, this court considers the evidence in the light most favorable to the verdict rendered by the jury. State v. Ternetz, 740 S.W.2d 713, 714 (Mo.App.1987).
All evidence and inferences that tend to support the verdict are accepted as true. State v. Brown, 660 S.W.2d 694, 698-99 (Mo. banc 1983). Evidence and inferences to the contrary are disregarded. Id. "The question is whether the evidence, viewed in a light most favorable to the State, is sufficient to support the verdict." Id. at 699, citing State v. Story, 646 S.W.2d 68, 72 (Mo. banc 1983).
State v. Norris, 813 S.W.2d 379, 380 (Mo.App.1991).
Defendant accurately states the elements of first degree murder to be "(1) knowingly (2) causing the death of another person (3) after deliberation." See § 565.020.1. He contends that the state failed to present evidence "from which a rational trier of fact could find deliberation, even in the light most favorable to the verdict."
Defendant has pointed out that "[e]vidence must be presented that would support a jury finding that a defendant acted deliberately," citing State v. Clemmons, 753 S.W.2d 901, 904 (Mo. banc), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). It is not necessary, however, for the state to present direct evidence of deliberation. State v. Eggers, 675 S.W.2d 923, 927 (Mo.App.1984). "[T]he mental elements establishing murder may be proved by indirect evidence and inferences reasonably drawn from the circumstances surrounding the slaying." Id. at 927-28.
"Deliberation" in a case of capital murder, means that the defendant considered the taking of another's life while in a cool and deliberate state of mind. It is not necessary, however, that the actor brood over his actions for an appreciable period of time. State v. Armbruster, 641 S.W.2d 763, 765 (Mo.1982).
Sandra Triblett testified that she saw defendant shoot Alvin Jackson. She testified that defendant aimed the gun; that he then fired the shot; that Alvin Jackson fell. She said that defendant then ran; that "he left." Alvin Jackson was shot in the back of the head.
After defendant shot Alvin Jackson, he was with Phinezy Johnson. The two of them met Dorothy Jackson. Defendant did not have a gun with him at that time. He said only "that he had shot Alvin Jackson in the head."
There had been several shots fired during the early morning of April 26, 1990. According to the testimony of Sandra Triblett, the shot that defendant fired that killed Alvin Jackson was fired after the other shooting had stopped. It was the last shot that was fired. The evidence was that defendant aimed the gun and fired. The shot was not fired inadvertently.
There was no evidence that Alvin Jackson had displayed any aggression. He was not one of the persons who had been discharging firearms prior to the time he was killed. There was no struggle. After defendant shot Alvin Jackson, he left without checking on Jackson's condition or seeking assistance for him.
Shortly after Alvin Jackson had been shot, defendant acknowledged not only that he had shot Jackson but that he had shot him in the head. After the shooting he discarded the weapon. He later went to Dorothy Jackson's house and then, along with Dorothy Jackson and Phinezy Johnson, to a trailer where other persons were present. "He ... told everybody to be cool."
Taken as a whole, the evidence provided a basis for the jury to reasonably infer that defendant, in a cool and deliberate state of mind, shot and killed Alvin Jackson. Defendant's first point is denied.
For his second point on appeal, defendant contends that the trial court erred in instructing the jury that proof beyond a reasonable doubt is "proof that leaves you firmly convinced of the defendant's guilt." Defendant contends, relying on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), that to define reasonable doubt in this manner was improper because "the statute does not require it."
The definition of reasonable doubt about which defendant complains was contained in Instruction No. 4. Instruction No. 4 was patterned after MAI-CR 3d 302.04. The Supreme Court of Missouri has refuted the argument that defendant now makes. As this court previously explained:
A challenge to the MAI-CR3d 302.04 definition of reasonable doubt was raised and denied by the Missouri Supreme Court in State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), and more recently in State v. Griffin, 818 S.W.2d 278 (Mo. banc 1991). The defendant's point is governed by Griffin and Antwine, not by Cage. State v. Edmonson, 827 S.W.2d 243, 249 (Mo.App.1992); State v. Vanzant, 814 S.W.2d 705, 708 (Mo.App.1991).
State v. Bogard, 836 S.W.2d 87, 89 (Mo.App.1992). Defendant's second point is denied.
Defendant's third and fourth points are directed to his Rule 29.15 motion. By his third point, defendant contends that the motion court erred in holding against the claim that he was denied effective assistance of counsel at his criminal trial. By his fourth point, he asserts that the motion court erred in denying his Rule 29.15 motion because "newly discovered evidence impacting upon the question of [defendant's] actual innocence presented at the evidentiary hearing ... mandated vacating [defendant's] conviction and remanding for a new trial or a further new trial motion and hearing."
State v. Williamson, 836 S.W.2d 70, 73 (Mo.App.1992).
Defendant claims that he did not receive effective assistance of counsel in two respects. He contends that his trial attorney "failed to investigate or call Renee Davis as a witness at [his] trial"; that "[h]ad trial counsel sufficiently investigated ..., he would have discovered Renee Davis" who "would have refuted the testimony of Sandra Triblett, who was the State's only eyewitness at [his] trial." Defendant also contends that his trial counsel was ineffective in "fail[ing] to call a ballistics expert as a witness."
Defendant's amended Rule 29.15 motion alleged, in its paragraph 8(c):
[Defendant] was denied the...
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