State v. Stepter

• Decision Date: 31 July 1990
• Docket Number: No. 71875,71875
• Citation: 794 S.W.2d 649
• Parties: STATE of Missouri, Respondent, v. Paul STEPTER, Appellant.
• Court: Missouri Supreme Court

Page 649

794 S.W.2d 649

STATE of Missouri, Respondent, v. Paul STEPTER, Appellant.

No. 71875.

Supreme Court of Missouri En Banc.

July 31, 1990.

Rehearing Denied Sept. 11, 1990.

Cheryl Rafert, St. Louis, for appellant.

William L. Webster, Atty. Gen., John M. Morris, William J. Swift, and Andrea Spillars, Asst. Attys. Gen., Jefferson City, for respondent.

COVINGTON, Judge.

A jury convicted Paul Stepter of first degree murder of Beverly Payton, § 565.020, RSMo 1986 ¹, and first degree assault of William Jackson, § 565.050. The trial court sentenced Stepter as a prior offender to consecutive sentences of life imprisonment without parole and thirty years. Stepter timely filed a motion for post-conviction relief pursuant to Rule 29.15. Following an evidentiary hearing, the trial court denied Stepter's Rule 29.15 motion. The Missouri Court of Appeals, Eastern District, affirmed the convictions and the denial of Stepter's Rule 29.15 motion and remanded for resentencing. This Court granted transfer to consider Stepter's claim of trial court error in refusing to submit to the jury a lesser included offense instruction of second degree murder. The conviction of first degree murder is reversed and remanded for new trial. The conviction of first degree assault is affirmed but remanded for resentencing. The denial of Stepter's Rule 29.15 motion is affirmed as it applies to the conviction of first degree assault.

Viewed in the light most favorable to the verdict, the evidence at trial established that William Jackson and his girlfriend, Beverly Payton, resided in a downstairs unit of a four family flat at 2343 University Avenue in the City of St. Louis, Missouri. On April 16, 1986, a group gathered in the Jackson/Payton apartment with Jackson and Payton: Richard Caldwell, an upstairs neighbor; Minnie, Caldwell's girlfriend; Stepter; Marsha Fraction, former girlfriend of Jackson and mother of Jackson's three children; Ronald Scott; and Gina G.

During the evening, Jackson and Payton borrowed Fraction's car to go to the laundromat. After returning, Payton and Stepter argued. Jackson separated them; Payton went into the living room and Stepter went into the kitchen. At various times, Caldwell, Minnie, Ronald Scott and Gina G. left the apartment. Stepter left the apartment at the same time Jackson walked Fraction to her car. Stepter and Jackson returned to the apartment at approximately the same time.

Jackson began to cook dinner for Payton's four-year-old son, Carl. Stepter was also in the kitchen. Payton remained in the living room. Jackson decided to go to the store. He asked Payton whether she wanted anything. Payton replied that she wanted a six pack of beer and asked Jackson to come into the living room to get the money for it. When Jackson was about a foot away from Payton, she said, "Look." Jackson turned to see Stepter firing a pistol. Payton was hit and she fell. Jackson felt a pain in his elbow and ran for the door. As a result of a lock earlier broken, the door was blocked, so Jackson dived out the window. As he escaped, another bullet struck him below his right buttock.

As Jackson ran from the apartment, Caldwell asked him what had happened. Jackson replied that Stepter had shot him. Jackson ran three blocks to his brother's house. There, Jackson told his nieces that Stepter had shot him. Jackson did not mention to his nieces that Payton had been shot. By ambulance Jackson was taken to the hospital. He recovered after several surgeries.

Payton was struck by two bullets, one to the left forearm and one to the left shoulder. The bullet to the left shoulder passed into the chest, pierced a lung and punctured the aorta. Payton bled to death and was pronounced dead at the scene.

Approximately three months after the crime occurred, the police apprehended Stepter who, after pursuit for approximately twenty-five minutes, surrendered at gun point.

Stepter first contends that the trial court erred in refusing to instruct the jury on the lesser included offense of second degree murder. The trial court refused the instruction on the ground that there was no evidence to substantiate submission of a second degree murder instruction. In this regard the trial court erred.

A defendant may be convicted of an offense included in an offense charged in the indictment or information. § 556.046. An offense is so included when it is specifically denominated by statute as a lesser degree of the offense charged. § 556.046.1(2). Section 565.025.1 sets forth the lesser degree offenses of the homicide offenses. As a result of the legislature's adoption of § 565.025.1, it is clear which homicide offenses are lesser included in other homicide offenses. Murder in the second degree is a lesser degree offense of murder in the first degree. § 565.025.2(1).

Section 556.046.2 provides: "The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." (emphasis added).

It becomes necessary then to determine the standard for evaluating whether there is a basis for both the acquittal of the charged offense of first degree murder and for conviction of the included offense of second degree murder. Only where there is a basis for a verdict of acquittal of the offense charged and a conviction of the lesser offense is an instruction on the lesser offense required. A jury has the ability to find the accused not guilty of first degree murder. As this Court observed in State v. Griffin, 756 S.W.2d 475, 485 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989), a second degree murder instruction tests a jury's belief of the crucial facts for a conviction of first degree murder. The question then is whether the evidence, in fact or by inference, provides a basis for both an acquittal of first degree murder and a conviction of second degree murder. The element at issue is deliberation.

The state contends that the argument between Payton and Stepter had ceased for a period of time during which Stepter left the apartment and returned. According to the state, this is conclusive of first degree murder and exclusive of second. Among other cases the state relies on State v. White, 790 S.W.2d 467 (Mo.App.1990). White involved a kidnapping and murder. At trial White denied that he committed the act. The trial court instructed on first degree murder and conventional second degree murder. The jury convicted White of first degree murder. On appeal, White contended the trial court erred in failing to instruct the jury on second degree felony murder. White asserted that the evidence showed that one of the victim's hands was free of binding, that the victim obtained a gun, and that only then did he shoot her. The evidence showed, however, that the victim had been shot eleven times with four different guns. In dictum, citing State v. White, 738 S.W.2d 590, 592 (Mo.App.1987), the court of appeals noted that when a defendant denies committing the crime and no evidence "mitigates" the offense, no instruction of the lesser included offense is required. White, 790 S.W.2d at 472. The court of appeals rejected White's asserted error, however, on the basis of State v. Griffin, 756 S.W.2d 475, which holds that there is no error in failing to submit a felony second degree murder instruction in a case in which second degree is submitted. The state's reliance on both White opinions is misplaced.

Contrary to the state's contention, there is a way in which the jury could infer a different version of the events, one that supports a finding of the absence of deliberation. See State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982); and cf. State v. White, 738 S.W.2d at 592. The evidence in the present case forms a "basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense," § 556.046.2, thus a basis for a second degree murder instruction. ²

The evidence is contradictory and confusing, and presents a question of fact for the jury as to whether Stepter deliberated. Of the people gathered in the apartment the night of the shooting, three testified as to the events of the evening: Jackson, Caldwell and Fraction. Jackson testified at trial that Stepter left the apartment between the time of his argument with Payton and the shooting. Jackson told Detective Bender, however, according to Bender's testimony, that Stepter came back to the apartment "around 9:15 or 9:20 that night" and "began arguing with Beverly Payton." Jackson "told them to stop arguing and told Beverly to go into the living room." Although Detective Bender had no record of how much time passed, he testified that Jackson told him that "after she reached the fireplace that she called to [Jackson] and [Jackson] entered the living room," then Jackson heard gunshots. On cross-examination, Jackson, who testified before the detective, either denied or did not recall making these statements.

Richard Caldwell's testimony could support either Jackson's testimony or Detective Bender's. Leaving his own apartment for Jackson's apartment, in the same complex, Caldwell heard some arguing or loud talking. He remained in the Jackson/Payton apartment for approximately five minutes before returning to his apartment. Approximately fifteen minutes later, Caldwell testified, he heard "loud talking" and "somebody holler" immediately before he heard gunshots.

Marsha Fraction's testimony about the "arguments" was confusing. On direct examination, Fraction testified that she heard "some type of argument" between Payton and Stepter after Jackson and Payton returned from the laundromat. She also testified on direct examination, however, that "[n]othing really happened" when Payton returned from the laundromat. When asked whether the argument occurred before or after the trip to the laundromat, she said: ...