State v. Stevenson, s. 16941

• Decision Date: 17 May 1993
• Docket Number: Nos. 16941,18118,s. 16941
• Citation: 852 S.W.2d 858
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Roderick Brian STEVENSON, Defendant-Appellant. Roderick Brian STEVENSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 858

852 S.W.2d 858

STATE of Missouri, Plaintiff-Respondent, v. Roderick Brian STEVENSON, Defendant-Appellant.

Roderick Brian STEVENSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 16941, 18118.

Missouri Court of Appeals,

Southern District,

Division One.

May 17, 1993.

Gary E. Brotherton, Office of the State Public Defender, Columbia, for defendant-appellant and movant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent and respondent-respondent.

SHRUM, Judge.

A jury found the defendant guilty of second degree murder and armed criminal action in connection with the slaying of Eston Lane. Found to be a prior and persistent offender, the defendant was sentenced by the trial court to consecutive terms of life imprisonment on the murder conviction and 20 years on the armed criminal action conviction. The defendant appeals from the convictions and sentences in case No. 16941.

The defendant's motion for postconviction relief pursuant to Rule 29.15 was denied by the motion court after an evidentiary hearing. The defendant appeals that ruling in case No. 18118. We consolidate the appeals for review.

We affirm both judgments.

DIRECT APPEAL--CASE NO. 16941

FACTS

The defendant does not challenge the sufficiency of the evidence to convict him. Viewed in the light most favorable to the verdict, the following facts are pertinent. On May 29, 1989, between 9:00 and 10:00 p.m., the defendant drove his car to Silver When they arrived at the park, the defendant and Derrick got out of the car. Derrick had a .25 caliber pistol in his possession and the defendant had a .22 caliber pistol. Derrick walked up to the victim and repeatedly asked him "why was he going to jump on my dad, and he wouldn't say nothing." The defendant was on the opposite side of the car from Derrick and the victim; the victim's back was to the defendant. After Derrick asked his question four or five times and received no verbal response, the victim "took his hand and stepped back and put it behind his back." At that point, Derrick said, "I pulled my gun out of my pocket and put it down to my side...." Derrick heard two shots, whereupon the victim "bent over a little bit." Derrick's pistol fired once--he said he did not know where it was pointed--and the victim went down. The defendant then walked around the car, walked over to where the victim was rolling around on the ground, and pointed his gun down at him. Derrick grabbed the defendant, told him "no," and pulled him away. The defendant and Derrick then left the park, going in opposite directions.

                Springs Park in Springfield, Missouri.  Passengers in his car were Lloyd Bolden and Lloyd's son, Derrick.  Derrick testified he got into the car shortly before going to the park after the defendant told him that the victim "had been jumping on [Lloyd] [f]or something he had nothing to do with."   Derrick quoted the defendant as having said, " 'I'm going to go down there' " and " 'I'm going to kill that m____ f____.' "  When asked who the defendant was talking about, Derrick answered, "[T]he picture I got was Eston."
                

The victim later died at a Springfield hospital from bullet wounds. Examination of his body revealed a projectile entry wound on his back. There was evidence that his back wound was caused by a .22 caliber bullet which had penetrated the lower lobe of his right lung, entered the center portion of his chest, perforated a vein leading from the lungs to the heart, punctured the pericardial sac, and penetrated the victim's esophagus. The victim had a second entry wound on his right thigh. The projectile causing the thigh wound flattened when it hit the victim's femur and its caliber was not determined. Eston Lane died from bleeding secondary to the gunshot wound to the chest.

The evening of the shooting, sometime after 10:00 p.m., the defendant arrived at the home of Mae Ella Jordan. He told her that he and Derrick Bolden had "got into it" with the victim at the park and that they had shot him. Telling Mae that he wanted to wash his hands, he asked her for some oil to put on his hands so he could get the gun powder smell off of them.

Two of the defendant's co-workers testified that on May 30, 1989, the defendant told them that he was in trouble, that he had shot someone the night before. He also told them he had disposed of the guns.

Marie Finley, called as a defense witness, testified that she went to the park with the defendant; that the defendant was not with Derrick Bolden; and that she and the defendant were in the parking lot with her family when she heard a single shot fired.

There was evidence that at the time of the shooting a Dwight Hobson was playing basketball in the park. He saw an argument in the park, heard what sounded like two shots, looked to where the victim was lying on the ground, and saw a person running in a northeast direction. Hobson used his citizens band radio to call for help and then administered first aid to the victim. Hobson told an investigator for the public defender's office that if the defendant "had admitted to doing the shooting he was crazy ... that he wasn't the one involved."

At the instruction conference, the defense counsel interposed only a general objection to the instructions.

Additional facts are recited where pertinent to the points being discussed.

DISCUSSION AND DECISION

Point I: Exclusion of Evidence of Another Person's Involvement

In his first point the defendant avers that the trial court erred in excluding evidence that Lloyd Bolden had blood on his clothes after the shooting and in excluding what the defendant claims was an inculpatory statement made by Lloyd Bolden at the scene of the crime. The excluded evidence was that when Lloyd Bolden returned home on the night of the homicide his clothing was stained with what laboratory analysis later confirmed to be blood of undetermined type, and, while at the crime scene, Lloyd Bolden called one Hobson a "snitch." ¹

Rules governing admissibility of evidence that someone other than the accused committed a crime are stated in State v. Umfrees, 433 S.W.2d 284 (Mo. banc 1968):

Evidence that another person had an opportunity or motive for committing the crime for which the defendant is being tried is not admissible without proof that such other person committed some act directly connecting him with the crime. The test generally for the admission of such evidence is stated in 22A C.J.S. Criminal Law § 622b, at page 451, as follows: "The evidence, to be admissible, must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person. Disconnected and remote acts, outside the crime itself cannot be separately proved for such purpose; and evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible."

433 S.W.2d at 287-88[4, 5] (citations omitted). See also State v. Schaal, 806 S.W.2d 659, 669 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992); State v. Easley, 662 S.W.2d 248, 251 (Mo. banc 1983); State v. LaRette, 648 S.W.2d 96, 103[9, 10] (Mo. banc), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); State v. Stokes, 638 S.W.2d 715, 723 (Mo. banc 1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1263, 75 L.Ed.2d 488 (1983).

The defendant argues that evidence of blood on Lloyd Bolden's clothing "tended to show, or at least was preliminary to such a showing, that Lloyd Bolden rather than [the defendant] shot Eston" and that evidence of Lloyd Bolden's statements "further linked Lloyd Bolden to the offense and should have been admitted." How this argument can logically be derived from the excluded evidence we cannot fathom and the defendant offers no explanation. Borrowing from Umfrees, the excluded evidence does not directly connect Lloyd Bolden with the crime and does not tend clearly to point out Lloyd Bolden as the guilty person. 433 S.W.2d at 287-88[4-5]. Such evidence was inadmissible and the trial court did not err in rejecting it. Point I is denied.

Point II: Admission of Photographic Evidence

The defendant's second challenge is that the trial court erred and abused its discretion in admitting into evidence two photographs of the victim's surgically exposed thoracic cavity and the organs contained therein. He argues that any probative value such evidence may have had was outweighed by its prejudicial impact; the photographs were cumulative, repetitious, gruesome, and unduly inflammatory.

Missouri law is well developed on the admission of photographic evidence of crimes of violence. Broad discretion is vested in a trial court in the admission of such evidence, State v. McMillin, 783 S.W.2d 82, 100 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990), although that decision may be overturned if it constitutes an abuse of discretion. State v. Kincade, 677 S.W.2d 361, 366 (Mo.App.1984). Missouri courts have allowed admission into evidence of photographs to corroborate the testimony of a witness, State v. Davis, 653 S.W.2d 167, 175 (Mo. banc 1983), to assist a jury to better understand the facts and testimony of witnesses, State v. Stevens, 467 S.W.2d 10, 24 (Mo.), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971), and to prove elements of the case, State v. Cutts, 694 S.W.2d 804, 810 (Mo.App.1985), including issues of "the nature and location of wounds and the cause of death." State v. Sweet, 796 S.W.2d 607, 615 (Mo. banc 1990), cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 270 (1991).

The defendant acknowledges the trial court's broad discretion in the admission of photographs but points to the equally well settled law that photographs of the effects of violent crimes are not properly...