State v. Prince, No. WD70337 (Mo. App. 3/9/2010)

Decision Date09 March 2010
Docket NumberNo. WD70337.,WD70337.
PartiesSTATE OF MISSOURI, Respondent, v. KRISTOPHER MONTE PRINCE, Appellant.
CourtCourt of Appeal of Missouri (US)

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STATE OF MISSOURI, Respondent,
v.
KRISTOPHER MONTE PRINCE, Appellant.
No. WD70337.
Court of Appeals of Missouri, Western District, Division Four.
March 9, 2010.

Appeal from the Circuit Court of Boone County, Missouri, The Honorable Kevin M. J. Crane, Judge.

Before: Thomas H. Newton, Chief Judge, Karen King Mitchell, Judge and Cynthia L. Martin, Judge.

Cynthia L. Martin, Judge.


Kristopher Prince appeals the trial court's judgment convicting him of second degree murder, unlawful use of a weapon, and armed criminal action. Prince alleges that the trial court: (1) erred in denying his motions to dismiss, accepting the verdicts, and sentencing him on second degree murder and unlawful use of a weapon in violation of his right of protection against double jeopardy; (2) erred in denying his motions to dismiss, accepting the verdicts, and sentencing him on unlawful use of a weapon and armed criminal action in violation of his right of protection against double jeopardy; (3) abused its discretion in overruling Prince's objection to the admission of jail tapes because they were inaudible and improperly bolstered a codefendant's testimony; (4) abused its discretion in overruling Prince's objection to the State's improper closing argument; (5)

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plainly erred in admitting testimony regarding Prince's right to remain silent; and (6) abused its discretion in denying Prince's motion for continuance. We affirm.

Factual and Procedural History

On April 12, 2007, Prince and his cousin, Lorenzo Ladiner, bought an assault rifle for the purpose of robbing a local drug dealer, Larry McBride. They stored the rifle at Ladiner's home. Later that same day, Ladiner was pulled over and arrested on an outstanding warrant. The next day, when Prince went to post bail for Ladiner, Prince was arrested on an outstanding warrant. From April 13 to 18, 2007, Prince remained in custody at the Boone County jail. During his confinement, Prince made several phone calls to Ladiner in which they discussed their plans to assault and rob McBride.

While Prince was in custody, Ladiner fired shots at McBride's vehicle. When Prince was released, he went to Ladiner's house. McBride pulled up to the house with Tedarrian Robinson and Carlos Dudley. McBride accused Ladiner of shooting at his house which led to a heated verbal exchange. Prince attempted to open McBride's door, and McBride drove off.

Prince and Ladiner ran inside Ladiner's house. Prince grabbed the assault rifle and Ladiner grabbed the car keys to chase after McBride. When they caught up with McBride, Prince leaned out the passenger window and fired at least five shots at McBride's vehicle. One bullet pierced the trunk of McBride's vehicle, traveled through the rear seat to the front passenger headrest, and struck Robinson in the neck. Prince and Ladiner returned to Ladiner's house and hid the rifle in the attic. McBride drove toward the hospital. Dudley called the police and reported that Prince was the shooter. The

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police pulled McBride over and took Robinson to the hospital where he was pronounced dead.

Police responded to Ladiner's house and arrested both Ladiner and Prince. Prince was charged with murder in the second degree, section 565.0211 (felony murder), unlawful use of a weapon by shooting a firearm from a motor vehicle, section 571.030.1(9), and armed criminal action, section 571.015.2 Prior to trial, Prince filed a motion for continuance and several motions to dismiss based on double jeopardy and statutory grounds, all of which were denied by the trial court. A jury found Prince guilty on all three counts. Prince was sentenced to consecutive sentences of thirty years for felony murder, fifteen years for unlawful use of weapon, and five years for armed criminal action. Prince appeals.

Point I

Prince argues that the trial court erred in sentencing him for both felony murder and unlawful use of a weapon because the cumulative sentences imposed for these convictions violated his right to be free from double jeopardy and violated section 556.041(3), as he was effectively convicted of a general crime and a specific crime based on the same conduct. The Double Jeopardy Clause of the Fifth Amendment prevents a defendant from being subjected to multiple punishments for the same offense. Peiffer v. State, 88 S.W.3d 439, 442 (Mo. banc 2002). "Double jeopardy analysis regarding multiple punishments is . . . limited to determining whether cumulative punishments were

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intended by the legislature." State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992) (citing Missouri v. Hunter, 459 U.S. 359, 366-69, (1983)). When the legislature specifically authorizes cumulative punishments under two statutes that proscribe the same conduct, cumulative punishments may be imposed against the defendant without violating the Double Jeopardy Clause. Id. Thus, in resolving the question of double jeopardy where cumulative punishment is claimed, legislative intent is paramount.

Section 556.041(3) prohibits the conviction of more than one offense if "[t]he offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct." (Emphasis added.) Prince was convicted of felony murder, the commission of any felony that results in death. The felony that served as the predicate offense for the felony murder conviction was the charge of unlawful use of a weapon by shooting a firearm from a motor vehicle, a violation of section 517.030.1(9). Prince contends that he was also convicted of the enhanced charge of unlawful use of a weapon by shooting a firearm from a motor vehicle resulting in death. This enhanced charge is described in section 571.030.7, which provides that a violation of section 571.030.1(9) is a class B felony "except that if the violation of subdivision (9) of subsection 1 . . . results in injury or death to another person, it is a class A felony." Prince thus takes the position that he was convicted and sentenced twice for the same crime—the commission of a felony resulting in death—with one offense (felony murder) designating his conduct generally and one offense (enhanced violation of section 571.030.1(9)) designating his conduct specifically. As a result,

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Prince contends his cumulative sentences for both convictions violate section 556.041(3). This point is without merit as Prince's claim is predicated on a false premise.

The State initially charged Prince with a class A felony—the enhanced violation of section 571.030.1(9) pursuant to section 571.030.7. However, prior to trial, the State filed a second amended information in which the enhanced unlawful use of a weapon charge was reduced to the unenhanced class B felony of unlawful use of a weapon pursuant to section 571.030.1(9). The jury was instructed on the class B felony of unlawful use of a weapon which, though requiring proof of Prince's discharge of a firearm from a motor vehicle, did not require proof that the discharge resulted in the death of another. Prince was convicted of, and sentence was imposed on, the class B felony of unlawful use of a weapon. Despite Prince's contention to the contrary, Prince was not convicted of, nor sentenced for, the enhanced version of section 571.030.1(9). He was, therefore, not convicted of two crimes possessing as a required element a "resulting death." Because Prince has posited a factual scenario that did not occur, we need not address the substantive issue posed by Prince's point relied on.3 Point one is denied.

Point II

Prince argues that the trial court erred in denying his motions to dismiss, accepting the jury's verdicts, and sentencing him because convictions of unlawful use of weapon

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and armed criminal action violated his right to be free from double jeopardy and violated section 571.015.4, since the legislature did not intend cumulative punishment. We disagree.

Standard of Review

"Whether an individual's right to be free from double jeopardy has been violated is a question of law, which an appellate court reviews de novo. When an appellate court's review is de novo, it need not defer to the trial court's determination of law." State v. Kamaka, 277 S.W.3d 807, 810 (Mo. App. W.D. 2009) (citation omitted).

Analysis

In this point, Prince argues that cumulative punishments for armed criminal action and unlawful use of a weapon are barred by the armed criminal action statute, section 571.015.4 Prince was convicted of unlawful use of a weapon pursuant to section 571.030.1(9) for knowingly discharging a firearm from a vehicle and armed criminal action pursuant to section 571.015.

As previously noted, the Fifth Amendment's Double Jeopardy Clause protects a defendant from multiple punishments for the same offense. As this protection has been construed to turn on whether cumulative punishments were intended by the legislature, our analysis of this point must turn on construction of section 571.015.

The armed criminal action statute, section 571.015, provides:

1. Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use,

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assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action . . . .

. . . .

4. The provisions of this section shall not apply to the felonies defined in sections 564.590, 564.610, 564.620, 564.630, and 564.640, RSMo.

Prince concedes that section 571.030.1(9) of which he was convicted for discharging a firearm at or from a motor vehicle is not expressly included in section 571.015.4 as an offense for which cumulative punishment is prohibited by the legislature. Nonetheless, Prince suggests we should construe section 571.015.4 to include section 571.030.1(9) within its scope because section 571.030.1(9) was enacted nearly twenty years after the legislature enacted section 517.015 and the legislature...

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