State v. Powell, WD

• Decision Date: 19 January 1982
• Docket Number: No. WD,WD
• Citation: 630 S.W.2d 168
• Parties: STATE of Missouri, Respondent, v. Christopher D. POWELL, Appellant. 31773.
• Court: Missouri Court of Appeals

Page 168

630 S.W.2d 168

STATE of Missouri, Respondent, v. Christopher D. POWELL, Appellant.

No. WD 31773.

Missouri Court of Appeals, Western District.

Jan. 19, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Feb.

23, 1982.

Application to Transfer Denied April 13, 1982.

James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.

SOMERVILLE, Chief Judge.

On December 2, 1977, a two count indictment was returned against defendant. Count I charged defendant with murder in the second degree (Section 559.020, RSMo 1969), and named his wife, Rhonda Powell, as the victim; Count II charged defendant with assault with intent to kill with malice aforethought (Section 559.180, RSMo 1969), and named Rosalyn Simpson as the victim. The indictment charged that both offenses occurred on January 21, 1977, in Jackson County, Missouri.

It is appropriate to set forth the chronology of this case in order to explain the lapse of time between the date of the indictment and the present appeal. On December 5, 1978, a jury found defendant guilty of both offenses as charged and judgment and sentence were rendered and pronounced accordingly. On direct appeal the convictions were reversed and the cause remanded for a new trial on the basis of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). See State v. Powell, 585 S.W.2d 302 (Mo.App.1979). Defendant, on remand for a new trial, was again found guilty by a jury of both offenses as charged. However, the trial court sustained defendant's motion for a new trial and he was retried a second time on March 17, 18 and 19, 1980. Once again a jury found defendant guilty of both offenses as charged and assessed his punishment at one hundred (100) years imprisonment on the charge of murder in the second degree and sixty (60) years imprisonment on the charge of assault with intent to kill with malice aforethought. After an unavailing motion for judgment of acquittal or in the alternative for a new trial, judgment and sentence were rendered and pronounced accordingly, with said sentences ordered to run consecutively, and defendant appealed.

On appeal, both convictions come under attack by defendant under one point, i.e., that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because "no rational trier of fact could find" him "guilty" of either offense "beyond a reasonable doubt" as the only evidence bearing upon the requisite elements of the respective offenses, particularly the element of intent, was that defendant shot the gun "which caused the victims' wounds."

As a prologue to determining the sufficiency of the evidence to support the guilty verdicts of murder in the second degree and assault with intent to kill with malice aforethought, certain manifest principles bearing upon appellate review and the respective elements of the charged offenses warrant mention.

The facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Franco, 544 S.W.2d 533, 534 (Mo.banc 1977), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275; State v. Chase, 444 S.W.2d 398, 401 (Mo.banc 1969); and State v. McGlathery, 412 S.W.2d 445, 447 (Mo.1967).

Cases are legion holding that the willful, premeditated killing of a human being with malice aforethought constitutes murder in the second degree. State v. Franco, supra, 544 S.W.2d at 535; State v. Chambers, 524 S.W.2d 826, 829 (Mo.banc 1975); State v. Jewell, 473 S.W.2d 734, 738 (Mo.1971); State v. Mattingly, 573 S.W.2d 372, 374 (Mo.App.1978); and State v. Cook, 560 S.W.2d 299, 303 (Mo.App.1978). In the context of murder in the second degree, "(w) ilful simply means intentional", State v. Meaney, 563 S.W.2d 117, 119 (Mo.App.1978), and the element of intent is a prerequisite to a finding of murder in the second degree, State v. Gillam, 588 S.W.2d 13 (Mo.App.1979). Premeditation, in the context of murder in the second degree, " 'means thought of beforehand, any length of time, however short' ". State v. Smart, 485 S.W.2d 90, 93 (Mo.1972), quoting from and citing State v. Kilgore, 70 Mo. 546, 555 (1879). Malice aforethought, in the context of murder in the second degree, means "the intentional doing of a wrongful act without just cause or excuse." State v. Smart, supra, 485 S.W.2d at 93, citing State v. Williams, 323 S.W.2d 811, 813 (Mo.1959), and State v. Ayers, 305 S.W.2d 484, 486 (Mo.1957).

The element of intent, as a prerequisite to a finding of murder in the second degree, may be inferred from the circumstances, and a jury in its ascertainment thereof "may consider the type of weapon used, the mode in which it was used, the effect of its use, as well as all of the surrounding circumstances." State v. Gillam, supra, 588 S.W.2d at 16. Concomitantly, intent, in the context of murder in the second degree, may be found when, under the circumstances, the prohibited result may reasonably be expected to follow from a voluntary act, irrespective of any subjective desire on the part of the offender to have accomplished the prohibited result. State v. Gillam, supra, 588 S.W.2d at 16. See also State v. Shuler, 486 S.W.2d 505, 509 (Mo.1972), quoting 22 C.J.S. Criminal Law § 35.

The elements of assault with intent to kill with malice aforethought, in the context of this case, are, as delineated in Section 559.180, RSMo 1969, that defendant on purpose and with malice aforethought shot Rosalyn Simpson with a deadly weapon with intent to kill her. State v. Gant, 586 S.W.2d 755, 766 (Mo.App.1979). "On purpose" has been held to mean "intentionally, and not accidentally." State v. Tate, 156 Mo. 119, 56 S.W. 1099, 1100 (1900). "Malice aforethought", as used in Section 559.180, RSMo 1969, has been defined as the doing of an act " 'intentionally and without just cause or excuse and after thinking about it beforehand for any length of time.' " Hardnett v. State, 564 S.W.2d 852, 854 (Mo.banc 1978). Specific intent is a requisite element of an offense charged under Section 559.180, RSMo 1969 (formerly Section 559.180, RSMo 1959). State v. Selle, 367 S.W.2d 522, 527 (Mo.1963). This requisite degree of intent is infrequently susceptible of direct proof and "may be inferred from facts and circumstances which legitimately so permit." State v. Selle, supra, 367 S.W.2d at 527.

As garnered from the above, a degree of affinity exists between the requisite elements of murder in the second degree and assault with intent to kill with malice aforethought, although death on the one hand and survival on the other hand is a noticeable line of demarcation. Moreover, the ascribed elements of each individual offense internally overlap in many respects.

A review of the evidence deemed germane to defendant's single point on appeal, consistent with the manifest principles previously enumerated, is now in order. On January 20, 1977, defendant's wife Rhonda Powell, from whom he was separated, spent the day and night at the apartment of her friend Rosalyn Simpson. The apartment was located in a housing complex at 2011 East 10th Street, Kansas City, Jackson County, Missouri. That evening, defendant came to Rosalyn Simpson's apartment to see his wife at which time Rosalyn Simpson informed him that she was being threatened by a former boyfriend. Defendant left the apartment and returned later that evening with a "sawed-off", "single-shot", ".20 gauge shotgun" which he obtained from an unidentified acquaintance for the ostensible purpose of protecting Rosalyn Simpson.

The group spent the night of January 20, 1977, at Rosalyn Simpson's apartment, and the next morning, January 21, 1977, went to Rhonda Powell's apartment which was located in the same building. During the afternoon of January 21, 1977, defendant returned to the apartment of Rosalyn Simpson, retrieved the .20 gauge "sawed-off" shotgun which had been left there, took it to his wife's apartment, and placed it in the living room closet. Later in the afternoon, defendant left his wife's apartment and returned with a bag of marijuana, cigarette papers, and beer which he purchased with money furnished by Rosalyn Simpson.

During the course of preparing dinner, defendant, his wife, and Rosalyn Simpson sat around the kitchen table and shared two marijuana cigarettes. The three also consumed some beer. Rosalyn Simpson rolled a third marijuana cigarette, and placed it on the kitchen table while she got up to get a glass of water. Upon returning to the kitchen table, Rosalyn Simpson discovered that defendant had taken the freshly rolled marijuana cigarette. Whereupon, both Rosalyn Simpson and Rhonda Powell informed defendant that it was unnecessary for him to take the cigarette since there was sufficient marijuana in the bag from which he could have rolled another one.

Defendant apparently concluded that he had been accused of stealing the marijuana cigarette, and an angry exchange of obscenities erupted...