State v. Price

• Decision Date: 17 September 1996
• Docket Number: Nos. WD,s. WD
• Citation: 928 S.W.2d 429
• Parties: STATE of Missouri, Respondent, v. Roosevelt PRICE, Jr., Appellant. 50393, WD 52244.
• Court: Missouri Court of Appeals

Page 429

928 S.W.2d 429

STATE of Missouri, Respondent, v. Roosevelt PRICE, Jr., Appellant.

Nos. WD 50393, WD 52244.

Missouri Court of Appeals Western District.

Sept. 17, 1996.

Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for respondent.

HANNA, Presiding Judge.

The defendant, Roosevelt Price, was convicted by the court of second-degree murder, § 565.021, RSMo 1994, and armed criminal action, § 571.015, RSMo 1994, and sentenced to concurrent terms of life imprisonment and fifteen years imprisonment, respectively. The defendant's appeal challenges the sufficiency of the evidence and the denial of his motion for post-conviction relief.

The evidence viewed in the light most favorable to the verdict is as follows. In May 1989, Tracy Rowe began dating the defendant. There was a history of animosity between the defendant and Rowe's family. In fact, Rowe's family did not approve of their relationship and made her leave the house when she became pregnant with the defendant's first child. The victim, Milford Mills, was Tracy Rowe's brother.

On the afternoon of September 10, 1993, the victim went to the fast-food restaurant where the defendant was working. An argument ensued outside the restaurant which escalated into a fistfight. Eventually, the fighting ceased and the victim apologized to the defendant. The victim then drove the defendant and Rowe back to their apartment.

Rowe then went inside the building, and the victim and the defendant began to argue again. At that point, the defendant went into his apartment, found his gun, loaded it, and returned to the victim's pick-up truck. According to the defendant, he saw the victim reach towards the glove compartment, at which point the defendant shot and killed the victim. Officer Mezzacasa of the Kansas City Police Department found the victim lying in the front seat of the pickup truck with the driver's side window shattered. No weapons were found in the truck.

The defendant testified that he shot Mills in self-defense and as a result of sudden passion. The court, sitting without a jury, found the defendant guilty. The defendant's pro se motion for post-conviction relief, pursuant to Rule 29.15, was filed, counsel was appointed and the motion was denied because it was not timely filed.

The defendant first contends that there was insufficient evidence to support his conviction because the state failed to prove beyond a reasonable doubt that the defendant did not act under the influence of sudden passion arising from adequate cause. The defendant asserts that, at most, he was guilty of the lesser included offense of voluntary manslaughter.

In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable factfinder might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). We must accept all reasonable inferences supporting the verdict, while disregarding all parts of the record contrary to the verdict. State v. Dagley, 793 S.W.2d 420, 423 (Mo.App.1990). We do not weigh the evidence. State v. Villa-Perez, 835 S.W.2d 897, 900 (Mo. banc 1992). The sufficiency of the evidence presented in a judge-tried case is determined by the same standard as in a jury-tried case. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992).

The trial court found that "the defendant did not act in self-defense as defined by our law; and further that the defendant did not act under the influence of sudden passion arising from adequate cause." (emphasis added).

A person commits the crime of second-degree murder if he or she knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person. § 565.021.1(1), RSMo 1994. If the defendant's conduct would otherwise constitute conventional second-degree murder, but the act is committed under the influence of sudden passion arising from adequate cause, he would be guilty of voluntary manslaughter. § 565.023.1(1), RSMo 1994.

The distinguishing element between conventional murder in the second degree and voluntary manslaughter is whether the actor was under the influence of sudden passion arising from adequate cause. §§ 565.021.1(1), 565.023.1(1). Sudden passion is defined as "passion directly caused by and arising out of provocation by the victim which arises at the time of the offense and is not solely the result of the former provocation." § 565.002(7), RSMo 1994. Adequate cause is "cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control." § 565.002(1), RSMo 1994.

In order to show adequate cause, there must be a sudden, unexpected encounter or provocation tending to excite the passion beyond control such that it renders a person of ordinary temperament incapable of reflection, or such passion as to obscure reason. State v. Simmons, 751 S.W.2d 85, 91 (Mo.App.1988). Passion may be rage or anger or terror, but it must be so extreme that for the moment, the action is being directed by passion, not reason. Id. (quoting from R. Perkins, Criminal Law 66 (1969)). Further, the offense must have been done in a sudden passion and not after there has been time for the passion to cool. Id. at 91. Sudden passion arising from adequate cause is a special negative defense to conventional second-degree murder. State v. Blackman, 875 S.W.2d 122, 131 (Mo.App.1994). It is an element of the crime and when properly introduced, it requires a finding by the jury that the defendant did not commit the murder under the influence of sudden passion to find the defendant guilty of second degree murder. Id. Once a defendant has properly injected the issue of sudden passion, the state bears the burden of disproving it beyond a reasonable doubt. Simmons, 751 S.W.2d at 92. The defendant is entitled to have the jury consider voluntary manslaughter instead of second degree murder when the defense introduces adequate evidence of the special negative defense. State v. Merritt, 734 S.W.2d 926, 932 (Mo.App.1987).

The defendant's argument that the evidence supported a finding of sudden passion relies principally upon the "the passion engendered by [the victim's] attack on [the defendant]" at the restaurant, in light of the history of animosity between the defendant and Rowe's family. He maintains that the passion could not have dissipated by the time the victim had driven the defendant and Rowe to their apartment.

On the record presented, there was no legal evidence injecting the mitigating factor--sudden passion arising out of adequate cause. The evidence showed that after their fight, the victim apologized to the defendant and matters calmed down to the extent that the defendant and Rowe accepted a ride home from the victim. Further, the defendant testified as follows concerning his frame of mind after the argument...