State v. Smith

Citation781 S.W.2d 761
Decision Date12 December 1989
Docket NumberNo. 70946,70946
PartiesSTATE of Missouri, Respondent, v. Samuel D. SMITH, Appellant.
CourtUnited States State Supreme Court of Missouri

Craig A. Johnston, Columbia, David D. Kite, Jefferson City, for appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for respondent.


Defendant was convicted of first degree murder for the stabbing death of fellow inmate Marlin May at the Missouri State Penitentiary on January 15, 1987. Because the jury fixed his punishment at death, defendant's appeal falls within the exclusive original appellate jurisdiction of this Court. Mo. Const. art. V, § 3. We affirm.

The events of that fateful day began with a knife attack by certain inmates upon another inmate, Demetrius Herndon. The incidents began on Five and Six Walks of housing unit 5, and concluded after a chase to corridor T-3, three stories below. Defendant yelled at the attackers in an attempt to intervene, but Marlin Mays, one of the antagonists, turned toward defendant and threatened him. Defendant and May then became engaged in a scuffle of their own, wherein defendant stabbed May numerous times in spite of efforts by the prison guards to intercede; the two finally separated when a guard sprayed mace on appellant and the victim was pulled through a gateway by corrections officers. The victim received nineteen stab wounds to the head, chest, back, and arm, and died almost instantly as a result of piercing injuries to the heart and lungs.


Defendant first contends there was insufficient evidence of deliberation to support his conviction of first degree murder, and in reviewing this contention "the evidence, together with all reasonable inferences to be drawn therefrom, is viewed in the light most favorable to the verdict and evidence and inferences contrary to the verdict are ignored." State v. Clemmons, 753 S.W.2d 901, 904 (Mo. banc 1988), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Viewed in this light, the evidence abundantly vindicates the conviction. A defendant commits the crime of first degree murder "if he knowingly causes the death of another person after deliberation upon the matter," § 565.020 RSMo 1986, 1 and " '[d]eliberation' means cool reflection for any length of time no matter how brief." § 565.002(3). The evidence supportive of the verdict indicates that the victim received nineteen stab wounds and defendant chased him down several flights of stairs and through some corridors while correctional officers attempted to stop him before he administered the lethal blow. Throughout this process, when prison guards attempted to intervene, defendant threatened them and continued to stab the victim. From this the jury could reasonably have inferred that defendant had an opportunity to reflect upon his actions for a length of time sufficient to meet the statutory criteria. The facts may be analogized to State v. Clemmons, 753 S.W.2d at 906, which, like the case at bar, involved a first degree murder conviction arising from a confrontation between fellow inmates. There "[t]he evidence that defendant had to take a few steps toward Henry Johnson before grabbing him and striking him in the chest with what was eventually determined to be a knife [gave] rise to the reasonable inference that defendant reflected for at least the time it took to reach Johnson before striking him." Id. Similarly, in State v. Mallett, 732 S.W.2d 527, 533 (Mo. banc 1987), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987), this Court stated that either the evidence that the defendant had to slip out of handcuffs before attacking the victim or that the first shot of the victim would have temporarily incapacitated him would give rise to the reasonable inference that the defendant deliberated before firing his last shots. Here the evidence indicates that defendant delivered one last stabbing blow to the victim's chest as he was pulled through a doorway, giving rise to an inference that defendant had at least a moment of reflection as the guards seized the victim before defendant rendered the final stab. Defendant's first point is denied.

Defendant next contends the trial court erred in refusing to submit his proffered instruction on voluntary manslaughter, a crime committed by a person who "[c]auses the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of section 565.021, 2 except that he caused the death under the influence of sudden passion arising from adequate cause (emphasis added)." § 565.023.1, RSMo. " 'Sudden passion' means passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation," § 565.002(7), and " '[a]dequate cause' means 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).

A voluntary manslaughter instruction is typically justified when the victim perpetrates a battery upon the defendant, State v. Singer, 719 S.W.2d 818, 823 (Mo.App.1986), but the evidence on this point is inconclusive. There is no evidence that May (the victim) actually struck the first blow in his confrontation with defendant, though evidence was presented that May was attacking Herndon and when defendant yelled attempting to stop that assault, May turned to defendant and said, "You want some of this, too?" while advancing toward defendant. Though this evidence standing alone might suggest a marginal basis for a finding of sudden passion arising from adequate cause, it becomes untenable when considered in the light of all the circumstances. However, assuming arguendo that sufficient evidence exists to support submission of the manslaughter instruction, it has been held that where, as here, instructions are submitted on both first degree and second degree murder, and the jury finds the defendant guilty of murder in the first degree, it is unnecessary to decide whether there was sufficient evidence to support the manslaughter instruction, for "no reasonable basis exists to suggest that the jury would have exercised greater leniency and reduced the conviction to manslaughter." State v. Merritt, 734 S.W.2d 926, 932 (Mo.App.1987). Defendant cites Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), as authority for submission of the manslaughter instruction in this case, but such reliance is misplaced. In Beck, the Court ruled that the jury may not be precluded from considering lesser included offenses supported by the evidence in capital cases. However, Beck is factually inapposite because the jury here was instructed on the lesser included offense of second degree murder and thus was not precluded altogether from considering a lesser included offense. For the same reasons, we also rule against defendant his point, raised as plain error, that the trial court erred in failing to insert in the second degree murder instruction the paragraph stating that "defendant did not do so under the influence of sudden passion arising from adequate cause." MAI-CR3d 313.04. 3 See State v. Hunter, 755 S.W.2d 634, 638 (Mo.App.1988).

Defendant next asserts the trial court erred in admitting a photograph of the pool of blood left where the victim expired, in that the photograph was not relevant to any material issue in the case and served only to arouse passion and to prejudice the jury. "Photographs are generally admissible if they are relevant to a material issue;" for example, if "they enable the jury to better understand the testimony." State v. Murray, 744 S.W.2d 762, 772 (Mo. banc 1988), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988). This demonstrative evidence was relevant to show the scene of the crime, see State v. Guinan, 665 S.W.2d 325, 331 (Mo. banc 1984), cert. denied 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984), and helped the jury to understand the testimony of the correctional officers as to how they pulled the victim through the door and held him as he lay dying. The admissibility of such evidence is within the broad discretion of the trial court and is "erroneous only if the ruling resulted in fundamental prejudice and abuse of discretion." State v. Clemons, 643 S.W.2d 803, 805 (Mo. banc 1983). In this connection we note that photographs of the stab wounds on the victim were admitted which were arguably more gruesome than the photograph complained of, and numerous photos of bloodied stairwells were also introduced into evidence. These photographs were plainly relevant and admissible, see id., and as the jury had already viewed these exhibits, it cannot be reasonably argued that defendant suffered "fundamental prejudice" from a picture of a puddle of blood. This point is denied.


Defendant requests plain error review of his remaining points, which were not previously raised and preserved for appellate review. 4


Defendant first claims error in the submission of Instruction No. 18, patterned after MAI-CR3d 313.44, which read as follows:

If you decide that one or more sufficient aggravating circumstances exist to warrant the imposition of death, as submitted in Instruction No. 15, you must then determine whether one or more mitigating circumstances exist which outweigh the aggravating circumstance or circumstances so found to exist. In deciding that question, you may consider all of the evidence relating to the murder of Marlin May.

You may also consider:

1. Whether the murder of Marlin May was committed while the Defendant was under the influence of extreme mental or emotional disturbance.

2. Whether Marlin May was a participant in the Defendant's conduct.

3. Whether the Defendant acted under extreme duress.


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