State v. Terry, s. 65515
| Decision Date | 13 August 1996 |
| Docket Number | Nos. 65515,68173,s. 65515 |
| Citation | 928 S.W.2d 879 |
| Parties | STATE of Missouri, Respondent, v. Marcus TERRY, Appellant. Marcus TERRY, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Raymund J. Capelovitch, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, David R. Truman, Assistant Attorney General, Jefferson City, for respondent.
Defendant, Marcus Terry, was convicted by a jury of two counts of murder in the first degree, § 565.020.1 RSMo 1986. He was sentenced to two consecutive terms of life imprisonment without possibility of probation or parole. On appeal, defendant claims the trial court erred in: (1) overruling his motion for a mistrial following the State's cross-examination of one of defendant's witnesses; (2) overruling his Batson motion to disallow the State's strikes of two venirepersons from the petit jury; (3) overruling his motion for severance of Counts I and II; and (4) admitting evidence of uncharged crimes. 1 We affirm.
Defendant does not challenge the sufficiency of the evidence. The evidence, viewed in the light most favorable to the verdict, is as follows. On the evening of November 2, 1992, defendant, Kaven Sipes, David "Wookey" Williams, Mark Johnson, and Clarence Temple were involved in a dice game. During the game, defendant confronted Sipes about "the dope he had took from Tawana." Defendant then left the area and, approximately five minutes later, a man wearing a black ski mask appeared and fatally shot Sipes. Temple testified that although he could not see defendant's face, he identified defendant "from his body."
Johnny Jackson, a friend of defendant's, finished his shift at a Rally's restaurant and was walking to his girlfriend's home when he was approached by defendant. Defendant was wearing a black ski mask. Defendant removed the mask and said, "I got that mother fucker."
Four days later, defendant and Temple talked about the shooting. Defendant asked Temple if he knew Williams. Temple said he did not and defendant said he "was going to have to get" Williams because Williams had identified defendant to the police. Defendant asked Temple to "take care of" Williams and gave him $1,000. Two days later, Temple returned the money to defendant and told him he could not do it.
Hyshol "Highshoe" Eastling testified that on November 8, 1992, he, defendant, and Williams were driving around and drinking from the late afternoon until the early morning of November 9, 1992. Ultimately, the three entered Forest Park and Eastling got out of the car to urinate. While he was doing so, defendant shot Williams in the head with a .32 caliber firearm. Eastling got back into the car and defendant told Eastling he would kill him if he said anything. Defendant also said he shot Williams because Williams had been "snitching, talking too much."
Several days later, defendant and Temple were in jail together. Temple asked defendant why he was there. Defendant said "somebody had told the police he had killed the little dude in the park and Kaven Sipes." Defendant speculated Eastling was the informant. When defendant discovered Temple was expected to be released that day, defendant offered him $2,000 to kill Eastling. Defendant also admitted to Temple that he killed Williams.
Defendant did not testify at trial, but presented the testimony of two witnesses in his defense. At the close of all of the evidence, and following the instructions and arguments of counsel, the jury found defendant guilty as charged.
On August 25, 1994, defendant filed a pro se motion for postconviction relief pursuant to Rule 29.15. Appointed counsel filed an amended motion on December 5, 1994. Following an evidentiary hearing, the motion court denied defendant's motion for postconviction relief. This appeal followed.
In his first point on appeal, defendant argues the trial court erred in failing to declare a mistrial following a question asked of Mark Johnson, a witness testifying on defendant's behalf, during the State's cross-examination. During direct examination, Johnson testified defendant was not present at the dice game which preceded Sipes' murder. During cross-examination the following exchange took place:
At this point, defense counsel objected. Out of the hearing of the jury, the following exchange occurred:
...
Defense counsel then read the relevant portion of the police report into the record. The police report states, in part, as follows:
[Defendant] later learned of the decedent's [Williams'] demise in the evening on Monday, 11-8-92, from an acquaintance (Barry, black male, no further).
He stated it was probably Kevin [sic] Sipes' people who murdered the decedent. He was present when Sipes was murdered and the word on the street "had it that" Sipes' people were going to kill all persons who were present when Sipes was murdered.
(emphasis added). Following the defense counsel's reading of the police report, the trial judge stated,
On January 28, 1994 the trial court held a hearing on defendant's motion for new trial. During the hearing, Detective Gary Stidum, the author of the police report, presented testimony as to the correct interpretation of the word "he" as used in the police report. During the hearing, the following exchange took place between Detective Stidum and defense counsel:
Detective Stidum, after reviewing the police report, then testified defendant had been referring to Williams' presence at the dice game. During the State's cross-examination, the prosecutor questioned Detective Stidum further about the police report's ambiguity:
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