State v. Stevens, 56317
| Decision Date | 20 February 1990 |
| Docket Number | No. 56317,56317 |
| Citation | 784 S.W.2d 858 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James STEVENS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Stewart M. Freilich, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant appeals from his conviction by a jury of second degree murder, § 565.021, RSMo 1986, and sentence by the court, as a prior offender under § 558.016, RSMo 1986, to life imprisonment. We affirm.
The state charged defendant with first degree murder, § 565.020.1, RSMo 1986; the court instructed the jury on first degree murder, second degree murder and involuntary manslaughter; the jury returned a verdict of guilty of second degree murder. It is undisputed that victim incurred the injuries causing her death while she was visiting defendant, her boyfriend, at his home. The medical examiner testified,
The cause of death was a combination of blunt trauma to the head, abdomen and all four extremities.... She had a hemorrhage underneath the surface of the scalp at the front part of the head. This measured about seven inches in diameter. She had a hemorrhage underneath the scalp on the back part of the head that was six inches in diameter. That was a total area. She had two bruises that were two inches in diameter each on her right arm. She had two bruises that were four inches in diameter each on her left arm, large bruises. She had a three-inch diameter bruise on the back part of her left hand and a small laceration on the back part of the hand about an inch in length. She had a four inch in diameter contusion on the back part of her abdominal wall, that is, the lower back area. And her entire--the front parts of both extremities from the hip all the way down to the ankle was (sic) one massive contusion. And the contusion on the left leg extended to the left buttock.
Defendant made a 911 call for assistance. One of the police officers who responded testified that defendant volunteered the following at the scene: "[H]e suspected her [victim] of stealing seventy dollars in rolled coins, and he whipped her to try and find out if she had in fact taken this, and he indicated the garden hose which he had used was downstairs...." He also testified that "[h]e [defendant] wasn't trying to kill her [victim]; [h]e was surprised that she had died." The police took defendant to the police station where he was given the Miranda warnings before making an oral statement and again before he made a taped statement. Defendant stated the beating had occurred in his home and repeated essentially what he had volunteered at the scene, but added that he had beaten victim off and on for about two and one-half hours. He denied striking victim on her head or upper body. Defendant testified to the same version of the events at trial, adding that victim had probably received the injuries to her arms while trying to ward off his blows and the injuries to her head when she fell two times. One of defendant's tenants and her friend both testified they saw part of the beating and that defendant had used a flashlight and bat in addition to the hose.
Defendant's principal point challenges the verdict director for second degree murder which the court submitted to the jury. Defendant asserts the instruction deviates from MAI-CR3d 313.04 by not including the same mental state submitted in the first degree murder verdict director and, to his prejudice, allowed the jury to reach a compromise verdict. The state admits the instruction did not comport with the Notes On Use but contends the error was not prejudicial. 1
The giving of an instruction at variance with an applicable MAI-CR instruction and Notes On Use is error with its prejudicial effect to be determined judicially. Rule 28.02(c), (f), State v. Christeson, 780 S.W.2d 119, 125 (Mo.App.1989). Our review here is for plain error because defendant did not object to the instruction on the ground asserted here at trial or at all in his motion for new trial. See Rule 30.20, State v. Walker, 753 S.W.2d 44, 45 (Mo.App.1988).
The verdict director for first degree murder included only the following phrase for the mental state element:
Second, that it was the defendant's purpose to cause the death of [victim]....
The verdict director for the lesser included offense of second degree murder had only the following phrase for the mental state element:
Second, that it was the defendant's purpose to cause serious physical injury to [victim]....
The note on use to MAI-CR3d 313.04 addressing which phrases setting forth the requisite mental states are to be used in part states,
(a) If murder in the second degree-conventional is submitted as a lesser degree offense of murder in the first degree, the phrase or phrases contained in [the first degree murder verdict director] must also be used in [the second degree murder verdict director] except that [the phrase "that it was the defendant's purpose to cause serious physical injury to (or to cause the death of) [name of victim ]"] may be added [if supported by the evidence].
MAI-CR3d 313.04, Notes On Use, 3(a).
Both...
To continue reading
Request your trial
-
Roll v. Bowersox
... ... Stacy Anderson, Ass't. MO State Attorney General, Jefferson City, MO, for Defendant ... MEMORANDUM AND ORDER ... As Justice Stevens pointed out, the facts in Henderson were `unique' because the state trial judge `found as a fact ... ...