State v. Oliver, s. 53236

Decision Date09 May 1990
Docket NumberNos. 53236,56893,s. 53236
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Gregory OLIVER, Defendant-Appellant. Gregory OLIVER, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Kathleen Green, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

DOWD, Presiding Judge.

This is a consolidated appeal from defendant Gregory Oliver's conviction by a jury of murder in the first degree and assault in the first degree and the subsequent denial of his 29.15 motion. He was sentenced to two life sentences. On appeal, we affirm both his convictions and the denial of his 29.15 motion.

On the evening of June 6, 1985, the defendant Gregory Oliver was playing cards at the home of Elizabeth Palmer. Gregory called his brother Ronald and asked him to come to Elizabeth's to pick him up. After Ronald arrived at Elizabeth's house, he came inside for a few minutes and watched Gregory play cards. During this time, someone flicked the lights off and on. When this happened, Ronald drew his gun and fired a shot into the ceiling of the apartment.

After the incident, Gregory and Ronald left the apartment. Elizabeth followed them outside of the building where Ronald forced her into his automobile at gunpoint. After riding around with Gregory and Ronald, Elizabeth was able to escape from them. The two brothers then proceeded to the home of Diane Moore in St. Louis, Missouri. When Ronald and Gregory arrived Diane, Andrew Chambers, James Crate, and others were in the apartment. Gregory carried a can of gasoline into Diane's apartment which he splashed on the floor and threatened to ignite. At this time, Diane testified Gregory stated that he was "Jake the mother f---ing snake" and there "ain't nobody as bad as him." Diane also testified that Gregory stated: "Bitch, I will blow you and your children up." During this time, Ronald was standing behind James Crate who was seated on a footstool next to the couch. Andrew Chambers was sitting on the couch. Diane saw Ronald pull out a gun and shoot James Crate in the back of the head. Diane yelled at Ronald who turned and shot her four times. In the melee, Andrew Chambers was also shot. James Crate died, Andrew Chambers and Diane Moore were injured. After the shooting, the two brothers ran out of the building to their car and drove away. They were arrested a short time later.

Gregory and Ronald were jointly tried and convicted by a jury. Gregory's main defense was that he did not aid or encourage Ronald in committing the offenses. The jury found Gregory guilty of murder in the first degree and assault in the first degree.

We should note that the appeal of co-defendant Ronald Oliver has been affirmed by this court. State v. Oliver, 775 S.W.2d 308 (Mo.App.1989).

On appeal, the defendant argues five points of error: 1) the trial court erred in joining the defendants and in failing to grant their subsequent motion to sever; 2) the trial court erred in failing to quash the jury for a violation of Batson; 3) the trial court erred in not limiting or in the alternative admitting the testimony of the state's witnesses concerning the prior inconsistent statements of witness Elizabeth Palmer when the witness denied having made the statement; 4) the trial court erred in allowing the state's rebuttal witness Pierre Davis to testify; 5) the trial court erred in failing to grant appellant's motion for acquittal and in accepting the jury's verdict of guilty in that there was insufficient evidence to sustain the conviction.

Appellant's first point alleges that the trial court erred in first joining the defendants and then in failing to grant their motion to sever. The defendants were charged in separate indictments. The court granted the state's motion to join the defendants. The defendants filed a motion to sever which was denied.

Missouri rules provide for joinder of defendants charged in separate indictments or informations. Rule 24.06(a) provides:

If two or more defendants could have been joined in the same indictment or information but they are charged in separate indictments or informations, the court may order the defendants to be tried jointly upon motion of any party.

Two or more defendants may be charged in the same indictment or information if they participated "in the same series of acts or transactions constituting an offense" and no "substantial prejudice" would result from the joinder. § 545.140 RSMo 1986. 1 Thus, we find that the trial court did not abuse its discretion in granting the state's motion to join the co-defendants.

Next, appellant claims the trial court erred in refusing to grant the defendants' motion for severance. Section 545.880, in pertinent part, provides:

2. If, upon written motion of the defendant, the court finds that the probability for prejudice exists in a joint trial, the court shall order the severance of defendants for trial. The court shall find that the probability for prejudice exists if:

* * * * * *

(2) There is, or may reasonably be expected to be, material and substantial evidence admissible against less than all of the joint defendants;

* * * * * *

(4) Severance of the joint defendants is necessary to achieve a fair determination of guilt or innocence of any defendant.

Appellant argues that the defendants' trial should have been severed because evidence concerning the kidnapping of Elizabeth Palmer, evidence concerning Ronald's statements to the effect they were going to Diane Moore's apartment, and other statements made by Ronald to various psychiatrists and psychologists would not have been admissible in a separate trial. Appellant also seems to argue that the defenses are inconsistent and appellant was thereby prejudiced by the joint trial.

The trial court has considerable discretion in determining whether or not a severance is warranted. United States v. Reeves, 674 F.2d 739, 744 (8th Cir.1982). Denial of a motion for severance is not grounds for reversal unless the trial court's denial constituted clear prejudice and an abuse of discretion. Id. Severance is required when the proof is such that a jury could not be expected to compartmentalize the evidence as it relates to the separate defendants. Id. Before the refusal to sever may be deemed an abuse of discretion, the defendant must affirmatively demonstrate that the joint trial prejudiced his right to a fair trial. United States v. Engleman, 648 F.2d 473, 481 (8th Cir.1981).

In the case at bar, we rule that the trial court did not abuse its discretion in failing to grant the motion to sever. The evidence concerning the circumstances around the alleged kidnapping of Elizabeth Palmer would have been admitted against Gregory Oliver. While evidence of uncharged crimes is generally inadmissible, the evidence of Gregory's participation in the kidnapping of Elizabeth Palmer would be admissible under the "complete story" exception. State v. Perkins, 680 S.W.2d 331, 334 (Mo.App.1984). Evidence of statements by Ronald to the effect that the two co-defendants were headed to Diane Moore's apartment were held not to be admissible against either defendant. (See Point 3 below and State v. Oliver, 775 S.W.2d 308, 309-11 (Mo.App.1989).) We find defendant Gregory Oliver was not prejudiced by the admission of these statements. In light of the fact that the jury was instructed not to consider Ronald's statements to the psychiatrists and psychologists as evidence of whether the defendants committed the acts charged against them, we find that Gregory suffered no prejudice. The defendant did not demonstrate that the joint trial prejudiced his right to a fair trial, and thus, the trial court did not abuse its discretion by failing to sever the defendants' trial.

Furthermore, the appellant claims that the defendants' defenses are irreconcilable. While it is the duty of the trial court to sever the trials of co-defendants if there are irreconcilable defenses, the doctrine is limited to those cases where the jury will infer that the conflict alone demonstrated that both are guilty. See State v. Oliver, 775 S.W.2d at 313. Here, the defenses are not irreconcilable. Ronald's defense is not to deny commission of the acts, but rather to claim he is not responsible for his actions. Gregory's defense is that he was an innocent bystander and that he tried to keep Ronald from committing the offenses. See State v. Oliver, 775 S.W.2d at 314. Since the defenses are not irreconcilable, appellant's contention has no merit. Point denied.

Appellant's second point relied on contends that the trial court erred in failing to quash the jury when the assistant circuit attorney used ten of his twelve peremptory strikes to remove black veniremen from the panel in violation of principles in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defendant argues that he made a prima facie case of racial discrimination in the state's exercise of peremptory challenges which the state failed to rebut by coming forth with race-neutral reasons for those strikes.

In order to protect racial minorities from purposeful discrimination through the state's use of peremptory challenges, the Supreme Court formulated standards used to determine whether prosecutors exercised their peremptory challenges in a racially discriminatory manner. The defendant may establish a prima facie case of racial discrimination by showing that 1) defendant is a member of a cognizable racial group, 2) the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire, and 3) that "these facts and any other relevent circumstances raise an inference that the prosecutor used that practice to...

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