State v. Petty

• Decision Date: 03 March 1998
• Docket Number: No. 71526,71526
• Parties: STATE of Missouri, Respondent, v. Henry PETTY, Appellant.
• Court: Missouri Court of Appeals

Page 127

967 S.W.2d 127

STATE of Missouri, Respondent, v. Henry PETTY, Appellant.

No. 71526.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 3, 1998.

Application for Transfer Denied

June 16, 1998.

Arthur S. Margulis, Linda Hogan, Margulis & Grant, P.C., St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jill C. LaHue, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Defendant, Henry Petty, appeals from judgment after a jury verdict of first degree murder, armed criminal action and unlawful use of a weapon. The charges are related to the shooting death of his nephew. Defendant requests reversal of his convictions or in The facts are as follows. On the morning of May 24, 1995, Defendant was working at a car wash, Elite Detail. He received a page from Anthony Payne at the Lindell Mini-Mart (the MiniMart). He drove his girlfriend's brown car to the Mini-Mart and met with Payne's mother, Linda Payne. The Payne family owned the Mini-Mart.

the alternative a new trial because the trial court erred when: (1) it submitted the charges after the state failed to introduce evidence sufficient to support a finding of deliberation for the first degree murder charge which was based on accessory liability and, the evidence at best, supported equally valid inferences of deliberation; (2) it allowed the state to misstate the law in closing argument by implying the jury could convict upon a lesser mens rea than that required; (3) it admitted: (a) hearsay testimony; (b) improper rebuttal; (c) evidence not revealed in discovery; and, (d) evidence of uncharged crimes; (4) it admitted testimony of the witnesses' states of mind that they were afraid; (5) it allowed the state to implicate Defendant as a robber; and, (6) it admitted as exhibits a roll of photos, freeze-frame photos and color still photos made from a videotape of the shooting which distorted the amount of time passing. We affirm the convictions.

Linda Payne told Defendant that she and her daughter were robbed at gun point in her home the previous March. She learned from her customers that Defendant's nephew, Nathaniel Massey, (Massey) committed the robbery. She described one of the items stolen as a ring. She told Defendant that she was working when Massey's mother patronized the Mini-Mart wearing her stolen ring. Massey's mother explained that her son gave her the ring for Mother's Day.

Linda Payne asked Defendant to retrieve her jewelry. If he did, she promised Defendant she would not press criminal charges against Massey. Defendant and Payne drove to the house of Defendant's mother. Defendant spoke with his mother. He told her he was looking for Massey, that Massey robbed some people, and they would not press charges if he could get Massey to return the items.

Defendant and Anthony Payne (Payne) left his mother's house in search of Massey. They found him standing by the street near a car. Many other people were also outside standing by the street. One witness testified that she and her friends were outside playing with a video camera before the shooting.

Witnesses described the shooting. Defendant and Payne drove up in a brown car. Defendant was driving. As Defendant and Payne drove up the street towards Massey, Defendant shouted insults out the window at him. He parked the car across the street from Massey. Massey walked over to the car where Defendant sat in the driver's seat. They talked. Then Massey walked back across the street.

Defendant made a U-turn and pulled the car over to the other side of the street where Massey was standing. Massey leaned into the passenger side window and spoke with Payne. They argued. Defendant opened the driver side door and argued with Massey over the roof of the car.

Defendant got back in the car. He drove forward. Massey yelled, calling Defendant and Payne, "b." Defendant pulled the car over to the side of the street. Defendant got out of the car. He adjusted a gun covered by his shirt, placed in the back of his waistband. He walked over to Massey. Payne remained in the car. Defendant said, "[g]et over here." Massey refused.

Massey opened the driver side door of his own car and was about to get in the car. Defendant walked over to Massey. They continued the argument while Massey stood in his open car door. Defendant accused Massey of the robbery. During the argument, a police car drove by and turned the corner.

Defendant gestured and paced as he argued with Massey. He turned and looked in the direction of the brown car. Payne had gotten out of the car and was walking towards Defendant. Defendant turned back towards Massey and yelled at Massey, "[y]ou're going to end up dead. I'm trying to save your punk a--life."

Payne walked up from behind Defendant on his left. Payne lifted the back of Defendant's Both Defendant and Payne fled the scene in the brown car. Defendant drove. Within a minute after the shooting, police officers arrived on the scene. They took charge of the video camera and tape. That evening, Defendant went to the police station and gave a taped statement.

shirt and pulled the gun out of Defendant's waistband. Defendant did not react to Payne with words or actions, but continued to argue with Massey. Standing behind Defendant, Payne checked the gun and released the safety. Payne stepped around Defendant's right side and pointed the gun at Massey. Defendant glanced at Payne. Payne began shooting Massey. Defendant did not speak or move. Payne continued to shoot Massey as he lay on the ground. Massey sustained eleven to thirteen gun shot wounds and died at the scene.

Fifteen Black Talon shell casings were recovered at the scene. Officers searched Defendant's residence and found a box of Black Talon bullets with eleven remaining on a closet shelf in the basement. The gun was never recovered. A firearms examiner for the St. Louis County Police Department crime lab testified the bullets found in Massey were Black Talons, hollow point bullets designed to expand on impact.

A week after the shooting, Officer Sanchez found the brown car parked in a wash bay at Elite Detail. While she waited for license plate information, the plate was being removed. Other police officers spoke with the car wash owner. The car wash owner admitted he removed the plate and gave it to the officers. The car appeared to have been cleaned inside and out.

Dorothy Petty, sister of Defendant, testified the relationship between Defendant and Massey in the few months prior to the murder was "rough. They wasn't getting along. Him and [Massey] was fighting and feuding the whole time." The court denied Defendant's motion in limine and permitted her to testify that sometime between the months of October and December, 1994, she witnessed an argument between Defendant and Massey over drugs belonging to Payne. During the argument, Defendant threatened to kill Massey. After the argument, Massey looked "worried to death." She also described Massey's feelings toward Defendant prior to the argument as, "[h]e thought [Defendant] was God."

Defendant testified. He admitted previous convictions for possession of cocaine, heroin, and marijuana, carrying a concealed weapon and unlawful use of a weapon. He said he had a good relationship with Massey prior to the shooting. He denied any role in the Mini-Mart robbery. He testified the gun used in the shooting was Payne's. He took it from Payne to keep anything from happening. He did not know that Payne was going to shoot Massey until Payne took the gun and pointed it at Massey. He was so shocked, he could not react.

The state called an unendorsed rebuttal witness, Tiffany Jones. She testified she was Massey's girlfriend for two and a half years. She described the relationship between Defendant and Massey as, "[a]t first it was a normal, uncle/nephew relationship. Then it got to be hostile. They would get into fights and arguments, things like that." She also testified, over objection, that she picked Massey up after an argument with Defendant over drugs within the year before the shooting. Massey told her he was afraid his uncle was going to kill him.

The court overruled the motions for judgment of acquittal. The jury returned a guilty verdict on all counts. The court again overruled Defendant's motion for judgment of acquittal notwithstanding the verdict or in the alternative motion for new trial. The court sentenced Defendant to life without probation and parole for murder in the first degree, three years for armed criminal action and three years for unlawful use of a weapon, all to run consecutively. Defendant appeals.

SUFFICIENCY OF EVIDENCE

In his first point, Defendant argues the trial court erred when it submitted the first degree murder and the related armed criminal action charges to the jury because the state failed to introduce evidence supporting the element of deliberation or, at best, the evidence at trial supported equally valid opposing inferences on that element. He argues In reviewing the issue of sufficiency of the evidence to support a criminal conviction, we accept as true all evidence favorable to the state, including all favorable inferences drawn from evidence and disregard all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). The issue is whether there is sufficient evidence on all elements of a charge from which a reasonable juror might have found a defendant guilty beyond a reasonable doubt. Id.

there is no evidence to support an inference that prior to the shooting, he was aware of Payne's plan to shoot Massey or that prior to the shooting he did anything to aid or encourage Payne in committing the crime. He contends the evidence introduced failed to establish: (1) a link between the argument he had seven months earlier and the shooting; or, (2) that he arrived at the scene intending to help kill Massey. He claim...