State v. Ramsey

• Decision Date: 15 February 1994
• Docket Number: No. WD,WD
• Citation: 874 S.W.2d 414
• Parties: STATE of Missouri, Respondent, v. Edward RAMSEY, Appellant. 45573.
• Court: Missouri Court of Appeals

Page 414

874 S.W.2d 414

STATE of Missouri, Respondent, v. Edward RAMSEY, Appellant.

No. WD 45573.

Missouri Court of Appeals Western District.

Feb. 15, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 1994.

Application to Transfer Denied May 26, 1994.

J. Bryan Allee, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., F. Martin Dajani, Asst. Atty. Gen., Jefferson City, for respondent.

Before ULRICH, P.J., and BRECKENRIDGE and SPINDEN, JJ.

SPINDEN, Judge.

Edward Ramsey appeals his conviction, following a jury trial, of two counts of first degree murder. The trial court sentenced him to two life sentences without possibility of parole. He contends that the state did not meet its burden of proof at trial, that he should have received a new trial because of "newly discovered evidence," that the trial court's instruction on circumstantial evidence was erroneous, and that the instruction defining reasonable doubt was unconstitutional. Ramsey also appeals the denial of his Rule 29.15 motion for post-conviction relief. We affirm the trial court's judgment and the denial of his Rule 29.15 motion.

The jury convicted Ramsey of murdering James Gaither and Mark Weibel, two workers at a Kansas City automobile upholstery shop, on February 23, 1989. Ramsey had left his Cadillac convertible at the shop to have a new top put on it. Ramsey had given the shop owner a $100 deposit for the work. During the afternoon of February 23, he went to the shop to pick up his car with his uncle, Ricky Ramsey, and Ed Fisher. The Ramseys went into the shop office; both carried concealed handguns. At some point the Ramseys pulled out their guns. Gaither and Weibel were ordered to lie down on the garage floor where they were each shot in the head. The Ramseys left with Weibel's and Gaither's money and personal belongings, the shop's copy of the receipt Eddie Ramsey had received for the $100 deposit, and the Cadillac.

I.

Ramsey's primary contention on appeal is that the trial court erred in denying his motion for a judgment of acquittal at the close of the evidence. He asserts that the state's evidence was insufficient to establish, beyond a reasonable doubt, that he was guilty of first degree murder. He argues that the state did not establish that he "deliberated coolly and deliberately on the matters for any length of time prior to the offense." We disagree.

When we test the sufficiency of evidence, we determine whether the evidence is sufficient to persuade any reasonable juror beyond a reasonable doubt as to each of the elements of the crime. State v. O'Brien, 857 S.W.2d 212, 215 (Mo. banc 1993). We defer to the jury's determination of witness credibility and the proper weight to be given the evidence. To ensure that we do that, we review the evidence "in the light most favorable to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); O'Brien, 857 S.W.2d at 215-16. We ignore all contrary evidence and inferences. O'Brien, 857 S.W.2d at 216.

The state made a submissible case. Although the state did not present any direct evidence that Eddie Ramsey shot Gaither and Weibel, the jury heard sufficient evidence to convict him of first degree murder. The state established that he walked into the office armed with a .22 caliber Luger pistol. He walked in with his uncle, Ricky Ramsey, who also was armed. He knew that he needed to pay $639 for his car's repair, but he walked in with only $250 cash and no check. He and Ricky Ramsey pulled out guns, and both guns fired. ¹ Although ballistics experts did not trace any of the spent bullets found in the shop to Eddie Ramsey's gun, several of the bullets found were not traceable to either gun because of their condition. After the shooting, Eddie Ramsey took from the office the shop's copy of a receipt showing his $100 deposit for his car's repair. He drove away in his car.

Even if the jury believed that Eddie Ramsey was only an accomplice and that Ricky Ramsey shot both men while Eddie Ramsey stood by, the jury was justified in finding Eddie Ramsey guilty of first degree murder. The jury had sufficient evidence from which to conclude that Eddie Ramsey, even as an accomplice, knowingly caused Weibel's and Gaither's deaths after deliberating upon the matter. Section 565.020, RSMo 1986.

We recognize the Supreme Court's instruction that "where the State's theory is accomplice/accessory liability, the jury must also find that the defendant had a purpose to aid another in the commission of the crime." State v. Ervin, 835 S.W.2d 905, 923 (Mo. banc 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). The court has further instructed that "[p]roof that the defendant merely aided another [who had] the purpose of facilitating an intentional killing cannot be sufficient to prove first degree murder[.]" O'Brien, 857 S.W.2d at 218.

The jury could reasonably find intent to kill and cool deliberation even if it believed Eddie Ramsey's testimony that he stood by while Ricky Ramsey ordered the victims to the floor and shot them in the head. Eddie Ramsey walked in with a gun which was fired. He made no effort to stop Ricky Ramsey--not even to protest his acts. He did not leave until he could get the keys to his Cadillac and after he made an effort to hide his presence by taking the shop's copy of a receipt for his earlier deposit. He made no apparent effort to inform authorities of the shooting when he was away from Ricky Ramsey.

A defendant's presence, opportunity, companionship, conduct, and flight are circumstances from which his purpose or intent may be inferred. ... [D]efendant's original denial of any involvement in the incident followed by exculpatory admissions of his cooperation ... gives rise to an inference of consciousness of guilt.

State v. Simpson, 778 S.W.2d 705, 707 (Mo.App.1989).

Moreover, the jury was free to disbelieve his contention that he did not participate in the shooting in any way and that Ricky Ramsey killed the men. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

II.

Ramsey contends in his second point that the trial court erred by overruling his motion for a new trial based on "newly discovered evidence." His newly-found evidence was the testimony of Ed Fisher and Steve Ramsey, Eddie Ramsey's cousin. He says he could not find them before trial. Eddie Ramsey agreed at trial to stipulations setting forth what Fisher and Steve Ramsey would testify to if called as witnesses, but he contends that the stipulations were based on their statements to police and that their "live" testimony would have confirmed his version of the incident.

Ramsey acknowledges that he filed his motion for a new trial outside the 15-day limit set by Rule 29.11(b). ² He filed a motion for a new trial on February 1, 1990. The trial court denied it. He filed this second motion for a new trial on November 5, 1991. At best, the second motion was an attempt to amend his motion for new trial, but, even as an amendment, it was well beyond the limits of Rule 29.11 and should have been denied.

As this court's Eastern District said:

Rule 29.11(b) grants a defendant in a criminal case the right to file a motion for a new trial "within fifteen days after the return of the verdict". The trial court may extend this time[.] ... [T]he request for a new trial based upon newly discovered evidence cannot avoid the strictures of Rule 29.11(b) See, e.g. State v. Mucie, 448 S.W.2d 879, 890 (Mo.1970); see also, State v. Davis, 698 S.W.2d 600, 603 (Mo.App.1985). Not being timely, the amendment [to a motion for a new trial] preserves nothing for review, and, procedurally, it is "a nullity". Mucie, supra at 890.

State v. Hamilton, 732 S.W.2d 553, 555 (Mo.App.1987). Missouri procedures do not expressly provide a means for a criminal defendant to present claims of newly-discovered evidence to the judiciary after the time to file a Rule 29.11 motion has expired. Id.; State v. Mooney, 670 S.W.2d 510, 513-15 (Mo.App.1984). The only means by which a criminal defendant with a late motion can seek relief based on newly-discovered evidence is by application to the governor for executive clemency or pardon pursuant to M O. C ONST. art. IV § 7 (1945). ³ Hamilton, 732 S.W.2d at 555 n. 2; Whitaker v. State, 451 S.W.2d 11, 15 (Mo.1970); State v. Johnson, 286 S.W.2d 787, 796 (Mo.1956).

When a criminal defendant's conviction is on direct appeal and he has discovered new evidence after the time to file a Rule 29.11 motion has expired, this court may, in extraordinary cases, remand the case as plain error pursuant to Rule 29.12(b) or pursuant to this court's inherent power so the defendant can present his new evidence. Hamilton, 732 S.W.2d at 555; Mooney, 670 S.W.2d at 515-16; State v. Davis, 698 S.W.2d 600, 603 (Mo.App.1985); State v. Williams, 673 S.W.2d 847 (Mo.App.1984).

We do not discern that this is an appropriate case for remand. The trial court, notwithstanding its lack of jurisdiction to do so, gratuitously reviewed Ramsey's second motion for a new trial and determined that it lacked merit. We concur. Although neither of the witnesses testified at trial, Ramsey was able to establish the same information to which they would have testified through the stipulations of facts.

III.

Ramsey complains in his third point that the trial court refused his instruction on circumstantial evidence modeled after MAI-CR 3d 310.02. Under the facts presented, he argues, the state's case consisted entirely of circumstantial evidence, and the trial court was required to submit the instruction.

He is wrong. The Supreme Court has ruled that the circumstantial evidence rule stated in MAI-CR 3d 310.02 is an incorrect statement of the law. State v. Grim, 854 S.W.2d 403 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). Moreover, even before Grim, MAI-CR 3d 310.02 "need not be given in cases where the evidence...