State v. Starr
| Decision Date | 08 June 1999 |
| Docket Number | No. WD,WD |
| Citation | 998 S.W.2d 61 |
| Parties | STATE of Missouri, Respondent, v. Patrick STARR, Appellant. 54504. |
| Court | Missouri Court of Appeals |
Kent Denzel, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Stephen D. Hawke, Assistant Attorney General, Jefferson City, for Respondent.
Before HOWARD, P.J., BRECKENRIDGE and SPINDEN, JJ.
Patrick Starr appeals from his convictions of attempted first degree robbery § 569.020, § 564.011, RSMo 1994; 1 second degree felony murder, § 565.021(2); and two counts of armed criminal action, § 571.015. The trial court sentenced Mr. Starr as a prior offender pursuant to § 558.016 and § 557.036.4. Mr. Starr was sentenced to fifteen years imprisonment for attempted robbery, life imprisonment for second degree murder, and life imprisonment for the two counts of armed criminal action. The trial court ordered that the sentences for attempted first degree robbery and the related count of armed criminal action would run concurrently. The sentences for second degree murder and the related armed criminal action count would run concurrently to each other, but consecutive to the sentences for attempted first degree robbery and the armed criminal action related thereto. Mr. Starr raises four points on appeal. First, he contends that the trial court erred by refusing to submit to the jury a self-defense instruction in connection with the second degree felony murder charge because there was sufficient evidence to support submission of the instruction. Second, Mr. Starr alleges that the trial court erred by denying his motion for a continuance following the State's change of a proposed stipulation regarding fingerprint identification because this change interfered with his trial strategy. Mr. Starr also contests the trial court's refusal to admit a forensic animation video because the video would have aided the jury in evaluating his testimony. Finally, Mr. Starr contends that the trial court erred by sentencing him, after retrial, to a greater sentence than he received when previously convicted, which increased sentence was presumptively the result of judicial vindictiveness in retaliation for successfully exercising his right to appeal.
On December 1, 1998, this court issued an opinion addressing Mr. Starr's first, second and fourth points. We were unable to address point three at that time because the record on appeal did not include the forensic animation video. Following our ruling, Mr. Starr filed a motion for rehearing, supplementing the record with the video. We granted Mr. Starr's motion for rehearing to address his third point, regarding the exclusion of the video. We now withdraw our December 1, 1998, opinion and issue this one in its place.
The judgment of the trial court is affirmed.
Mr. Starr does not contest the sufficiency of the evidence, therefore, only a brief statement of the facts is necessary. On appeal, the evidence is considered in the light most favorable to the verdict. State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995). On May 19, 1994, Mr. Starr was riding around Kansas City in a van with four other men: Anthony Davis, Roderick Burnett, Charles Shirley, and Reno Hardy. They stopped to purchase fuel at an Amoco station on 49th Street and Swope Parkway. While still at the gas station, Mr. Starr noticed a 1986 Ford Thunderbird with "triple gold roadster" wheels parked beside a pay phone directly across the Amoco parking lot. Mr. Starr had previously stated that he was going to "jack" the Thunderbird for its wheels.
As Mr. Starr sat on the passenger side of the back seat of the van, next to the open sliding cargo door, he told the driver, Mr. Davis, to drive over to the Thunderbird, so he could get the rims from the man with the Thunderbird. Mr. Davis complied, pulling the van parallel to the car. The passenger sides of the vehicles were adjacent and Mr. Starr was seated directly across from Samuel McKay, the passenger in the Thunderbird, when Mr. Starr yelled, "Get out before I kill you." Witness testimony about who shot first was inconclusive. However, the evidence showed that Mr. Starr shot Mr. McKay one time with a twelve gauge shotgun, inflicting a fatal wound to the heart. Mr. McKay fired ten shots from a Glock .45 handgun, striking Mr. Starr once in the knee. Mr. McKay died at the scene.
Following the incident, Mr. Starr's companions took him to Menorah Hospital. While being treated for the gunshot wound and later, while being questioned by the police, Mr. Starr made several contradictory statements regarding the circumstances of his injury. Following an investigation, the State charged Mr. Starr with attempted first degree robbery, second degree felony murder and two counts of armed criminal action. Mr. Starr was first tried on February 6 through 9, 1995. At this trial, a jury convicted him of all charges. Before sentencing, the State withdrew one count of armed criminal action. The trial court then sentenced Mr. Starr, as a class X offender, to fifteen years imprisonment for attempted first degree robbery, thirty years imprisonment for second degree felony murder, and five years imprisonment for one count of armed criminal action. The trial court ordered the terms to be served concurrently.
Following a successful motion for post-conviction relief, the motion court reversed Mr. Starr's convictions and remanded the cause for a new trial, which was held on March 31 through April 3, 1997. At the second trial before a new trial judge, a jury convicted Mr. Starr of attempted robbery, second degree felony murder, and two counts of armed criminal action. The trial judge sentenced Mr. Starr to fifteen years imprisonment for attempted robbery, life imprisonment for second degree murder, and life imprisonment for each armed criminal action conviction. The trial court ordered the terms for attempted first degree robbery and the associated armed criminal action to be served concurrently. The terms for second degree felony murder and the related armed criminal action were also to be served concurrently, but consecutive to the terms for attempted first degree robbery and armed criminal action. As a result, Mr. Starr was effectively sentenced to two consecutive life terms. This timely appeal followed.
As his first point on appeal, Mr. Starr contends that the trial court erred by refusing to submit a self-defense instruction to the jury when there was sufficient evidence to support such an instruction. Mr. Starr relies upon his evidence that he shot Mr. McKay in self-defense after the driver of the van made a reckless U-turn close to the Thunderbird and Mr. McKay began shooting at the van. The State argues that, regardless of the evidence, self-defense is not available as a defense to felony murder. Relying on State v. Newman, 605 S.W.2d 781, 786 (Mo.1980), the trial court refused to submit the self-defense instruction offered by Mr. Starr.
In Newman, like here, the verdict director for felony murder did not submit the defendant's defense of justifiable homicide. In ruling that self-defense did not need to be submitted, the Supreme Court stated:
Notes on Use to MAI-CR (2d) 2.04 require a cross reference in a verdict-directing instruction to any "special negative defense." Self-defense is one of the named "special negative defenses" and pattern instructions for capital murder (MAI-CR 2d 15.02), second degree murder (MAI-CR 2d 15.14) and manslaughter (MAI-CR 15.18) provide for that defense in such cases. However, MAI-CR 15.04-15.12, for use in first degree murder and 15.16 for second degree felony murder made no provision for such defense for the reason that self-defense is not a defense to a homicide committed in the perpetration of arson, rape, burglary, robbery or other felony. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343 [15-17] (banc 1956).
Id. Mr. Starr claims it was error for the trial court to follow the precedent of Newman because changes in the law subsequent to Newman make it no longer controlling.
Mr. Starr is correct that after Newman the Supreme Court approved MAI-CR 3d and, under these revised criminal instructions, none of the verdict directors for homicide make reference to self-defense. See MAI-CR 3d 313.02--313.12. Self-defense is now a separate instruction and its Notes on Use do not preclude a self-defense instruction being submitted for felony murder. See MAI-CR 3d 306.06, Notes on Use. Therefore, the rationale of Newman, that self-defense is not available as a defense to felony murder because it was not provided for in MAI-CR 2d, is no longer viable.
In Newman, the Supreme Court's holding was also based on State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, which the Supreme Court cited for the general principle that self-defense is not a defense to a homicide committed in the perpetration of a felony. 605 S.W.2d at 786. This rule of law is called into question, however, by a subsequent decision of the Supreme Court. In State v. O'Neal, 618 S.W.2d 31, 38 (Mo.1981), the Supreme Court stated that "[u]nder the terms of the statutory language of § 565.003[, RSMo 1978,] one can be convicted of first degree murder (felony murder) even though he did not intend to kill someone, unless the death is excusable or justifiable." (emphasis added). A killing is justifiable if the perpetrator acted in self-defense. See § 563.026. See also § 563.031.
So, the language of O'Neal is at odds with Newman. 2
Nevertheless, it is unnecessary to decide whether Newman or O'Neal is the last controlling decision of the Supreme Court. Even assuming the instructional error alleged by Mr. Starr, there must be prejudice to him before the jury's verdict is overturned. State v. Gilmore, 797 S.W.2d...
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