State v. Ray, WD
| Decision Date | 11 March 1997 |
| Docket Number | No. WD,WD |
| Citation | 945 S.W.2d 462 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Respondent, v. Fred RAY, Jr., Appellant. 52109. |
Jonathan L. Laurans, James F. Speck, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, Philip M. Koppe, Assistant Attorney General, Kansas City, for respondent.
Before SMART, P.J., and SPINDEN and ELLIS, JJ.
Fred Ray was convicted by a Lafayette County jury of second degree murder, § 565.021, 1 and armed criminal action, § 571.015.1. He was sentenced to concurrent terms of life and ten years imprisonment, respectively. Ray appeals.
On Monday night, April 17, 1995, Fred and Connie Ray's sixteen year old daughter, Lora, ran away from home. Gina Nettleson, a friend of Lora's, told the Rays to look for her at Howie Adams' house, a reputed drug house. The Rays went to the Adams' house, where they met Brian "Howie" Adams, although Howie did not identify himself at that time. The Rays asked Howie if he knew where their daughter was. He claimed he did not. A number of other young men were standing around, and Connie asked them if they knew where Lora was. Some of the boys made rude and lewd comments to Connie. She recognized one of the speakers as Lincoln Bainbridge and admonished him for the comments. One boy finally told the Rays their daughter had been at the house earlier, but had left with David DeCamp. Mr. Howard Adams, Howie's father, came outside and asked Howie if he had any information concerning Lora's whereabouts. When Howie said he did not, the Rays left.
The next day, the Rays found Lora at David DeCamp's and admitted her into a drug rehabilitation program. When the Rays got home from the hospital, they noticed some boys in a red Mustang sitting across the reservoir park watching their house for over an hour. The Rays learned the Mustang belonged to Lincoln Bainbridge, one of the young men at the Adams' house the night before.
On Wednesday, Connie went to her daughter's high school to advise them of Lora's absence. She was followed by a red Mustang. The red Mustang also followed her to church and to the grocery store, where it parked next to her. In the grocery store, two men in their twenties watched Connie as she shopped from aisle to aisle. Although these men were ahead of her at the checkout stand, they offered to let her to go first and went to the next checkout lane. After checking out, Connie went to talk to the manager of the store about her daughter. When she left the store, the Mustang was gone.
When she arrived at home, Connie called Ray at work and told him she had been followed by some boys in a red Mustang. As soon as Ray could leave work, he drove to Mr. Adams' house to solicit his help in getting the boys to leave his family alone. Because he did not see a vehicle in the Adams' driveway, Ray did not stop. He went back to the Adams' that evening, but no one answered the door. However, Ray talked to Mr. Keith Holt, a neighbor and relative of the Adams', who did not know when Mr. Adams would be back.
Later that evening Ray received a phone call from someone who identified himself as "Eric Smith." The caller asked Ray, "What the hell you doing over at this house?" Ray asked, "What house?" The speaker replied, "You know damn good and well what house." Ray said his family just wanted to be left alone. The caller said he would "do" Ray and his family. Ray called the police to report the call. The police told Ray they would send some officers to his house. Ray armed his son with a shotgun and himself with a pistol, and put a rifle by the door. Sometime later, Ray received another call from someone who said, "you are dead." Ray again called the police to report the call.
When the police arrived, Ray asked them to stay to protect his family. The police told Ray they were aware of the drug house, and "had warrants out for the inhabitants' arrest." The police told Ray they did not think the boys would hurt the family, but might do property damage. After the police left, Ray called his 22 year old son, Scott. When Scott arrived, they discussed their options and decided to try to get Mr. Adams' help. Just as Ray and Scott were about to leave, they decided to take a gun for protection because they were going to a drug house. Ray put the pistol in the waistband of his pants.
The majority of the foregoing testimony was excluded at trial. The case, as presented to the jury, contained the following evidence. On April 19, 1995, Ray received a telephone call at work from his wife advising him of certain upsetting "events" that transpired that day. Upon leaving work, Ray proceeded to the residence of Mr. Howard Adams to engage his help in desisting these "events." Ray believed Mr. Adams would be cooperative in this matter because he had been helpful in a past situation. When Ray did not see Mr. Adams' automobile at the residence, he did not stop.
Later that evening, at approximately 8:00 p.m., Ray drove to Mr. Adams' home in a second attempt to engage his help. Again, Mr. Adams was not home, but Ray spoke to Mr. Keith Holt, a neighbor and relative of Mr. Adams. Mr. Holt advised Ray that Mr. Adams was not home, but would probably be home in the morning.
At approximately 11:00 p.m. that evening, Ray called the Lafayette County sheriff's department. When the officers arrived at the Ray's home, Ray was carrying a rifle over his shoulder and a revolver in the front of his pants. The officers detected an odor of alcohol on Ray's person. Ray unloaded his weapons at the officers' request. Ray advised the officers of his concerns and fear of a Mr. Eric Smith. The officers advised Ray to call the sheriff's department if he had any other concerns, but asked him to let them handle the situation.
Believing the officers were of no real help, Ray rearmed his weapons, and told his middle son, Shane, to call his oldest son, Scott, for assistance. When Scott arrived, Ray informed him of the day's events. The two men decided they would make another effort to find Mr. Adams and solicit his help with the "events." Just before leaving his house, Ray grabbed his pistol and put it in the back of his pants. At the Adams' residence, Ray and Scott rang the doorbell. Howie Adams, the son of Mr. Howard Adams, and his friend, Ryan Stebbins, answered the door.
At this point the State's and the defendant's renditions of the events differ dramatically. Ryan, Howie's friend, testified the following events transpired after Ray and Scott arrived at the Adams' house. Ray asked Howie if he knew who he was and whether the boys were going to let him in, or whether he had to come through the hole in the screen. Once inside, Ray angrily shook his fist and finger in Howie's face, asking the boys to leave his family alone. Ray stated that he was there to get his ass kicked and that the boys were lucky they were not of age, or he would kick their ass. When Ryan told Ray they "had no fucking problem with [him]," Ray became enraged by the use of the epithet. Ray then asked Howie how old he was. Upon discovering that Howie was 20, Ray began swinging his fists at Howie. In an effort to avoid the blows, Howie retreated into the living room, but really didn't have anywhere to run. Ryan yelled at Ray to stop.
Ray pulled the pistol from his waistband, placed the gun flush with Howie's forehead at the bridge of his nose and, after a slight pause, shot him. Ryan ran to the corner of the kitchen and attempted to conceal himself. Ray pointed the gun at Ryan, who begged not to be shot. Scott asked his father what he was doing. Ray stated that he was already going to prison and might as well shoot Ryan, too. Scott instructed Ray to put the gun down. Ray took the bullets out of the gun and set it on the counter. Ray and Scott told Ryan to call the police. Scott attempted to stop Howie's bleeding with towels and Ray performed CPR on Howie.
Ray, on the other hand, testified the following occurred at the Adams' house. When Howie and Ryan answered the door of the Adams' residence, Ray asked to see the man of the house. When he learned that Mr. Adams was not home, he asked if there were any more parents at home. Because there were not, Ray asked Howie if they could talk. Howie let Ray and Scott into the house. Ray repeatedly asked Howie and his group to leave his family alone. Howie then pushed Ray in the chest. Ray swung at Howie, and they began to wrestle. At some point, Scott broke up the fight. Ray realized the gun had slipped down the back of his pants, so he reached around and pushed it back up into his belt. Ray again asked Howie and his group to leave his family alone and told Howie he would protect his family however he had to. While saying this to Howie, Ray pulled the gun out of his pants to show that he was willing to protect his family. As he was bringing the gun around to show it to Howie, his arm was hit and the gun went off. Ray began to stumble around asking, "who hit my arm." Ryan stepped back begging Ray not to shoot him. Ray told Ryan he was not going to shoot him, and tried to hand the gun to Ryan. Ray then emptied the bullets from the gun and set it on the table. Ray and Scott told Ryan to call an ambulance. Scott got towels to stop the bleeding and Ray administered CPR.
Ray repeatedly stated that the shooting was an accident. When the sheriff's deputies and paramedics arrived at the Adams' residence, Ray was covered in blood. As he was taken into custody, he continued to claim the shooting was an accident. The single gunshot to Howie's head proved fatal. An autopsy revealed soot in the wound itself indicating the wound was a "contact gunshot wound," meaning the gun muzzle was flush against Howie's forehead when the gun was fired.
Prior to trial, the State moved the court to preclude the defense...
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