State v. Smith

• Decision Date: 10 February 2006
• Docket Number: No. 26698.,26698.
• Citation: 185 S.W.3d 747
• Parties: STATE of Missouri, Respondent, v. Thomas K. SMITH, Appellant.
• Court: Missouri Court of Appeals

185 S.W.3d 747

STATE of Missouri, Respondent, v. Thomas K. SMITH, Appellant.

No. 26698.

Missouri Court of Appeals, Southern District, Division Two.

February 10, 2006.

Motion for Rehearing or Transfer Denied March 3, 2006.

Application for Transfer Denied April 11, 2006.

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M. Shawn Askinosie and Teresa L. Grantham, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Thomas K. Smith ("Appellant") appeals his conviction for murder in the first degree, a violation of section 565.020.¹ Following a jury trial, the trial court sentenced Appellant to a term of life imprisonment without the possibility of parole. Appellant now brings six points of trial court error discussed below. We affirm the judgment of the trial court.

Viewing the evidence in the light most favorable to the jury's verdict, State v. Chaney, 967 S.W.2d 47, 49 (Mo. banc 1998), on January 19, 2003, Keith Allen ("Allen"), his live-in girlfriend, Holly Zlotopolski ("Zlotopolski"), and her sons were cutting wood on his property when they saw Appellant driving through their field. Throughout the afternoon, they made several trips to their home to unload wood and during that time they continued to encounter Appellant on their property.² At some point in the late afternoon, Allen became frustrated with Appellant's appearance on his property and told Zlotopolski that he wanted she and her sons to return to the house. Allen told Zlotopolski "he was going to find out what [Appellant] wanted." Allen and Zlotopolski got into his truck, the two children got onto their bicycles, and they started for home. On their way back to the house, they passed Appellant, who was standing in their neighbor Dennis Bryant's ("Bryant") front yard drinking a beer. When their truck slowed down to pass Bryant's house, Allen told Zlotopolski that Appellant was "a puss."

After dropping Zlotopolski and the children off at the house at 4:20 p.m., Allen told them he was leaving "to go lock the gate, he didn't want [Appellant] up there on the hilltop." Zlotopolski never saw him alive again.

At around 7:30 that evening, Myron Dixon ("Dixon") and Odie Atchison ("Atchison") were "coon hunting" in the area surrounding Allen's property. As they approached Johnson Rowe Road, they saw in the road "a S15 pickup [parked and running] with a gentleman [later determined to be Allen] lying underneath the pickup." Dixon stated that Allen, who "wasn't moving," was lying on the ground behind the open driver's side door of the truck "in front of the back wheel" and there was "a ball cap laying out in the middle of the road." Dixon and Atchison drove past the truck, parked, and called 9-1-1.

Deputy Shawn Cox ("Deputy Cox") arrived on the scene within five minutes. Dixon and Atchison walked up to the truck with Deputy Cox and Dixon noticed that Allen "was lying in a pool of blood, and that he was probably dead." Dixon also noticed that there appeared to be marks on the truck from shotgun pellets "just above the body and kind of on the inside of the bed [of the truck] and on the back of the cab" and there was a rifle lying underneath the truck.

Deputy Cox testified that when he arrived on the scene at 7:45 p.m. he observed Allen's "body lying underneath a truck." Deputy Cox noted that Allen's "head and part of [his] shoulders were under the back end of the truck;" there was "a large amount of [coagulated] blood, quite a bit around [Allen's] body;" there were "injuries to [Allen's] head and neck, arms . . .;" there was a gun lying underneath the vehicle; and there was no movement or response from Allen.

When the police began investigating Allen's death, Appellant's name "came up" almost immediately when the officers interviewed Zlotopolski. Around midnight that evening, Deputy Cox and several other officers went to Appellant's home, which was about half a mile from the scene of Allen's murder. Upon arrival, Lieutenant Tim Gideon ("Lieutenant Gideon") advised Appellant of his Miranda³ rights and Appellant acknowledged that he understood those rights. When Deputy Cox did a "protective sweep" of the house to make sure there were no other occupants, he located "a deer rifle and a handgun" as well as some shotgun shells and a "marijuana pipe."⁴ Additionally, the officers located a "black-powder rifle" in Appellant's truck, which was parked outside his home, and which also showed signs of recent damage.⁵

Missouri State Highway Patrol Sergeant Rob Vaughn ("Sergeant Vaughn") interviewed Appellant that evening at his home. According to Sergeant Vaughn, Appellant, who appeared to be intoxicated, stated that he knew Allen but "had not really seen or even talked to Keith Allen in two years." Appellant told Sergeant Vaughn that he and Allen "used to be friends, but that Mr. Allen had gotten involved with methamphetamine and [Appellant] didn't want to be around him." Appellant went on to state that he had seen Allen driving several times that day, but did not know anything else.

After being interviewed by Sergeant Vaughn and the officers, Appellant was placed under arrest for possession of a marijuana pipe, which was found near a chair Appellant had been occupying. He was then taken to the Stone County Jail. After being repeatedly interviewed at the Stone County Jail and continually denying his involvement, Appellant finally admitted to being involved in Allen's death and agreed to show the police "where the rifle — the .12 gauge shotgun was hidden in the woods outside [his] residence."

Testifying on his own behalf at trial, Appellant asserted that he shot Allen in self-defense. He stated that he had not been on Allen's property on the evening in question. He testified that at around 4:30 in the afternoon he went to feed corn to some wild turkeys on a piece of land adjoining his property. He stated that he "loaded [his] truck with some corn, got [his] shotgun, and went . . . out to the woods. . . ." To access the adjoining property, he drove through an unlocked gate to an old logging road and fed the turkeys. While he was feeding the turkeys, he heard a truck which he suspected was Allen's and he went back toward the gated entrance to the logging road.

When Appellant approached the gate on his return, he saw Allen's truck "in the middle of the road" and Allen "was standing outside of his truck." Appellant stated that he stopped his truck about "three or four car lengths" from Allen, at which time his shotgun was sitting on the seat next to him. According to Appellant, Allen came right up to his truck window and started screaming and yelling at him and told him that he was "going to blow [Appellant's] f-ing head off if he catches [Appellant] over there on his land." Appellant stated that he tried to explain to Allen that he had not been on his property, but that Allen would not listen to him. Appellant testified that he did not feel threatened at that time, but instead thought that Allen "had had a bad day and he was going to take it out on [him]." "[T]he next thing [Appellant] kn[e]w [Allen] was running back to his truck." Appellant stated that Allen then "pulled a gun out." Appellant stated that at that time he was "scared out of [his] brain" and "thought [he] might get shot right there on the spot." When he saw the gun, Appellant stated that he grabbed his own gun, jumped out of his truck, and ran behind his truck to hide. Then he "just stuck [his] gun around the side of the truck, figuring [he] would scare the living crap out of [Allen] . . ." and fired. Appellant stated that although he remembers firing his gun only once that day, he understood that the evidence showed Allen was shot several times. He went on to state that his shotgun was a pump action gun and that he must have pumped it several times in order to have fired it repeatedly, but he did not specifically recall doing so.

Appellant testified that after firing at Allen, he "got back in [his] truck and figured [Allen] was probably hiding behind the truck . . . So [he] just got in [his] truck and left." He stated that he could not get past Allen's truck, which was parked in the road, so he ran into it with his truck and pushed it out of the way and drove home. Appellant stated that when he went past Allen's truck he did not see him lying on the ground and he had no idea he had actually shot Allen. When he got home, he stated that he waited in the woods for an hour or so before going in the house because he suspected that Allen would come after him. Eventually Appellant tired of waiting for Allen, leaned his shotgun against a tree, and went into the house. He was arrested several hours later.

Appellant repeatedly insisted that he believed his life was in danger at the time he fired at Allen. He stated that he did not call 9-1-1 to help Allen because he did not know Allen was injured. Appellant admitted to having had a drinking problem in his past, but stated that he only had two beers on the night in question. Appellant also admitted he did not tell the police the truth when they first interviewed him, because he was scared and because he did not feel they were being truthful with him.

Following trial, the jury convicted Appellant of murder in the first degree and he was subsequently sentenced to life imprisonment without the possibility of parole. This appeal followed.

Appellant alleges six points of trial court error. In his first point of trial court error, Appellant maintains that the trial court erred in allowing State's Exhibit # 5 "to go back to the jury during deliberations after such evidence was altered because the exhibit no longer represented the exhibit admitted by the court in that the altered exhibit was misleading and caused extreme prejudice to [Appellant]." Appellant argues that because he made marks on the exhibit during his...