State v. Skinner, 51978

• Decision Date: 23 June 1987
• Docket Number: No. 51978,51978
• Citation: 734 S.W.2d 877
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ronald SKINNER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 877

734 S.W.2d 877

STATE of Missouri, Plaintiff-Respondent, v. Ronald SKINNER, Defendant-Appellant.

No. 51978.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 23, 1987.

Motion for Rehearing and/or Transfer Denied July 30, 1987.

Application to Transfer Denied Sept. 15, 1987.

Charles Shaw, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Defendant, Ronald W. Skinner, appeals from a conviction of first degree murder in violation of Section 565.020 RSMo 1986. The conviction arose from the death of Diane Green on September 3, 1985, which resulted from a gunshot wound to the head. The judgment is affirmed.

Edward Little, also known as James Little had called defendant and informed him that he had hash ¹ to trade for marijuana. Defendant then made arrangements with a friend to sell Little a pound of marijuana for three hundred dollars and nine ounces of hash. The defendant, Little and defendant's friend were to meet in O'Fallon Park in St. Louis at 8:00 p.m. to make the exchange, but defendant, defendant's friend who was bringing the marijuana, and a second friend of defendant's arrived late. Their car parked behind Little's automobile and defendant exited the car and approached Little's vehicle.

Little testified that defendant immediately opened the door of the vehicle and climbed into the backseat. Diane Green, Little's girlfriend, and Diane's sister Janine were seated with Little in the front seat. However, both defendant and Janine Green testified that Little and defendant talked for a few minutes while defendant was standing outside the car. Defendant also testified that he got into Little's car only after he told Little that his friends had the marijuana elsewhere and would have to lead Little to it. At that point, according to defendant, Little told him that he would not go ahead with the deal, unless defendant rode with him.

The cars eventually pulled up next to the side of a factory on Hall Street. Then shooting broke out in the Little car. Little was shot in the arm. Diane Green was shot twice; the fatal wound entering through her head. Diane's sister Janine was shot in the ear. Only the defendant left the vehicle unscathed. However, there was differing testimony as to how the shooting began.

Little asked "Ron is this it?" Defendant responded "This is it" and then, according to Little, defendant pulled a gun and began shooting. Janine Green's testimony was in accord with Little's. Little and Janine Green both indicated that all the shots came from the backseat. Little and Green's testimony also indicated that, after defendant exited the vehicle, he set it afire. Little testified that he heard someone say "clean it up Ron" and then heard a rubbing noise, as though fingerprints were being wiped off, before the car caught fire.

Defendant testified that Diane Green and Little had been fighting over whether Diane was going to give Little money to make the deal, and that after the car was parked, Little pulled a gun. Defendant stated that Little, Janine and Diane had been smoking PCP laced cigarettes on the way to the factory and that when he saw the gun, he did not know who Little planned to shoot. He testified that he reached for the gun to take it away from Little, but that Little struggled with him and that in the struggle, the gun began to fire. When the shooting stopped, according to defendant, he exited the car and found his friends' car gone and walked or ran home. He stated that he did not know how the fire, which burned Little's car, started.

The medical evidence came from the St. Louis City Medical Examiner's Office. The medical examiner, Dr. Mary Case, indicated that the angle of Diane's wounds was consistent with the shots having been fired from the rear and that the volley was from close range.

After defendant had left the scene Janine Green climbed out the window of the car and ran for help. Little testified that he carried Diane from the burning car. Further factual details will be added under the points to which they pertain.

Defendant's brief contains thirteen separate points on appeal. We first address the issues presented by defendant related to alleged instructional error; points eight, nine and ten in defendant's brief; and defendant's seventh point which relates to the death qualification of the jury.

Point eight alleges error in the failure of the trial court to instruct the jury on self-defense. In determining whether a self-defense instruction is required, the evidence must be viewed in the light most favorable to the theory of self-defense put forth by defendant. State v. Ehlers, 685 S.W.2d 942, 946-948 (Mo.App.1985). If there is substantial evidence putting self-defense in issue, the trial court must instruct on self-defense, whether or not a self defense instruction is offered, and here defendant offered instructions on the issue, See, State v. Pride, 567 S.W.2d 426, 430-431 (Mo.App.1978). Defendant's proffered self-defense instruction, however, was not supported by substantial evidence. Defendant never asserted that the gun held by Little was pulled on him, or that Diane Green ever had a gun. Paragraph two of the proffered instruction states that in order to find defendant not guilty because he acted in lawful self-defense, the jury must conclude that the defendant "reasonably believed it was necessary to use deadly force to protect himself against what he reasonably believed to be the imminent use of unlawful force putting himself in an imminent danger of death or serious physical injury at the hands of Diane Green." Emphasis added. There was no evidence to support such a finding. In fact, if defendant's evidence is to be believed, he never voluntarily used deadly force against anyone. Therefore self-defense was not a defense supported by the evidence.

We next address the issue of whether the court erred in failing to give MAI-CR2d 2.28, an instruction on excusable homicide. What defendant ignores is that this instruction was withdrawn by our Supreme Court effective October 1, 1984, prior to any of the events relevant to this cause. The trial court did not err in refusing to give an instruction based on a withdrawn MAI Criminal Instruction. ²

Defendant also predicates error on the trial court's failure to instruct the jury as to voluntary and involuntary manslaughter. A trial court must instruct on all lesser included offenses supported by the evidence. State v. Story, 646 S.W.2d 68, 73 (Mo. banc 1983); State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979). An instruction on a lesser included offense is required whenever an evidentiary basis exist for a verdict acquitting the defendant of the charged offense and convicting him of the lesser included offense. Section 556.046.2 RSMo 1986; State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982).

Voluntary manslaughter is the intentional killing of a human being in the heat of passion, on reasonable provocation. MAI-CR2d 13.08; State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973); Bandy v. State, 639 S.W.2d 136, 139 (Mo.App.1982). Defendant did not testify, nor was there any evidence, that defendant shot Diane Green in the heat of passion or that there existed reasonable provocation. Defendant's testimony indicated that he had not intentionally shot anyone. Therefore, there was no error in the trial court's failure to instruct the jury as to voluntary manslaughter.

Defendant's involuntary manslaughter instruction under MAI-CR2d 13.10 read as follows:

INSTRUCTION NO. I

If you do not find the defendant guilty of voluntary manslaughter, you must consider whether he is guilty of involuntary manslaughter.

If you find and believe from the evidence beyond a reasonable doubt:

First, that on September 3, 1985 in the City of St. Louis, State of Missouri, the defendant caused the death of Diane Green by shooting her, and

Second, that the defendant recklessly caused the death of Diane Green, then you will find the defendant guilty of involuntary manslaughter.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty [of involuntary manslaughter].

In determining whether the defendant recklessly caused the death of Diane Green, you are instructed that a person acts recklessly as to causing the death of another person when there is a substantial and unjustifiable risk he will cause death and he consciously disregards that risk, and such disregard is a gross deviation from what a reasonable person would do in the circumstances.

Defendant's testimony, which allegedly formed the evidentiary basis for the instruction, was:

He [Little] told her [Diane], 'Give me the money,' and she said that she wasn't going to give him no money.

And they started getting into a loud argument and she started moving her hands all around, he started moving his hands all around, they were getting into a little push and shove in the front seat.

All of a sudden, I don't know where it came from or nothing, but he had a gun in his hand.

And at that time he had the gun in his hand, and he turned around and made a quick look at me and I grabbed the gun, and when I grabbed the gun I tried to get it away from him because I didn't know who he was going to shoot.

I grabbed the gun. I tried to pull it away from them [sic], the gun just started going off repeatedly.

Later on cross-examination, defendant added: "It happened too quick ... I was trying to save my life."

A key element of the offense of involuntary manslaughter, as set out in MAI-CR2d 13.10, is recklessness. Recklessness is defined as acting in such a manner that there is a substantial and unjustifiable risk that the actor will cause death and consciously disregarding the risk where such disregard is a gross deviation from...