State v. Thomas, ED 78744.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPaul J. Simon
Citation70 S.W.3d 496
PartiesSTATE of Missouri, Respondent, v. Johnnie L. THOMAS, Appellant.
Docket NumberNo. ED 78744.,ED 78744.
Decision Date22 January 2002
70 S.W.3d 496
STATE of Missouri, Respondent,
Johnnie L. THOMAS, Appellant.
No. ED 78744.
Missouri Court of Appeals, Eastern District, Division Five.
January 22, 2002.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 13, 2002.
Application for Transfer Denied April 23, 2002.

[70 S.W.3d 498]

David C. Hemingway, Asst. Sp. Public Defender, St. Louis, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Evan J. Buchheim, Asst. Attorney General, Jefferson City, MO, for Respondent.


Johnnie L. Thomas (defendant) appeals the judgment entered on verdicts of guilty by a jury of first degree murder in violation of Section 565.020 RSMo (2001) (all further references herein shall be to RSMo 2001 unless otherwise indicated), armed criminal action in violation of Section 571.015, first degree burglary in violation of Section 569.160, and first degree assault class B felony in violation of Section 565.050, for which he was sentenced to consecutive terms of life imprisonment without possibility of probation or parole, life, fifteen years, and an additional fifteen years. On appeal, defendant contends that the trial court erred and abused its discretion in refusing to dismiss the indictment or remand to juvenile court because the juvenile court abused its discretion in concluding defendant needed more rehabilitation than the juvenile court could provide "since the deputy officer based his opinion... on the false premise that [defendant] could only remain under the juvenile court's authority until age 18," when in fact, the juvenile court had the authority to retain jurisdiction until defendant reached the age of 21. Defendant further argues in his first point that due process dictates a remand for a new certification hearing due to the loss of the transcript from the

70 S.W.3d 499

original certification hearing because, as a result of such loss, defendant cannot fully state his challenge to his certification and further that efforts to stipulate to the record have failed. In his second point, defendant contends that the trial court erred and abused its discretion in overruling defendant's objection after the state "sought commitments" from the jury during voir dire by asking the venire persons to speculate as to whether they could convict defendant based upon the testimony of one witness. In his third point, defendant argues that the trial court erred and abused its discretion in denying defendant's motion to strike venire person Carol Koval (Koval) for cause in that she never unequivocally stated that her concerns for her father, who had liver cancer and lived in the eastern United States, and her son, who had recently been arrested in nearby St. Charles, would not preclude her from listening to the evidence. Defendant further argues in his third point that Koval did not unequivocally state that the fact that a friend of hers had been murdered in a case similar to this case would have "no effect on her." In his final point on appeal, defendant claims that the trial court erred in denying his motion for judgment of acquittal as to the burglary count because the evidence did not establish that defendant entered victim's house unlawfully, but rather showed that he knocked at the door and was admitted with victim's permission. We affirm.

On appeal, we examine the evidence and its reasonable inferences in the light most favorable to the verdict and disregard all contrary evidence unless it is supportive of the verdict. State v. Grim, 854 S.W.2d 403, 405 (Mo.banc 1993). Applying this standard, the evidence reveals the following: At the time of the incident, Pamma Thomas (victim) lived with her husband, Anthony Thomas (Anthony), and her two children ages eleven and nine in a house at 1237 Gimblin in the City of St. Louis. Anthony's sister, Sharon Thomas, is the mother of then sixteen-year-old defendant, and another sister, Darlene Thomas (Darlene), is the mother of then thirteen-year-old Darnell Thomas (Darnell). Defendant and Darnell lived with their grandparents, Johnnie Thomas, Sr. and Bessie Thomas, in a house at 1245 Gimblin, two houses down the street from victim's house.

On Tuesday, April 27, 1999, Anthony Thomas awoke and prepared to go to work. His brother stopped by and the two were talking when defendant knocked at the front door and asked for a cigarette. Anthony and his brother informed defendant that they had none and defendant left.

Anthony and his brother continued their conversation as they walked to Anthony's car. Defendant appeared once more, informing Anthony and his brother that he needed someone to work on his car. They talked for about ten minutes at which time defendant accused Anthony of selling a car that was a "lemon" to Johnnie Thomas, Sr. Victim defended her husband, telling defendant that Anthony had sold the car because it was old and had been in the family "for a long time."

Following the quarrel with defendant, Anthony went to work. Later that morning, victim phoned him to discuss the evening meal. At about 12:30 p.m., Anthony went home for lunch.

Upon reaching the house, Anthony pulled his car into the driveway and remained there for about 30 seconds listening to the end of a favorite song. He then got out of his car and walked to the backyard to check on the couple's newly built garage. Before he reached the garage, he noticed that a back door to the house was ajar. Concerned, Anthony went to the

70 S.W.3d 500

door and looked inside. His eyes were directed to his wife laying motionless at the bottom of the basement steps near the washroom. She had on "a little pink gown of hers" and her "top was off." Figuring that she had gotten tired washing clothes, Anthony called out: "Hi, Pam, baby, are you tired? Are you sleepy or something? Why don't you go upstairs and lay down?" Victim did not respond, and Anthony walked down the stairs.

Once he reached her, Anthony noticed a white plastic bag over victim's face tied tightly around her neck. After pulling the bag off her head and seeing a belt also tied around her neck, Anthony began to "scream and yell."

Anthony ran up the stairs to "make a phone call" from the phone located in the dining room. To reach the dining room, Anthony had to run through the kitchen and then through a hallway. On his way to the dining room, he saw that the house had been ransacked. After passing a bathroom located off of the hallway, Anthony noticed a figure sitting on a love seat in the dining room making hand gestures toward him. The room was not well lit and it was not until his eyes adjusted to the darkness that he recognized the figure as his nephew, Darnell. Anthony began screaming at Darnell and asked him what had happened. Darnell sat silently and continued making hand gestures toward Anthony.

Anthony then heard a clicking sound behind him. He turned around to see defendant pointing a shotgun directly toward his face. Anthony had stored this shotgun under his bed loaded with one shell and he noticed several shotgun shells laying on the floor. Defendant told him: "Don't move, don't move motherf* * *er, I will kill you like I killed her." Anthony became "delirious" and started to scream. Defendant pulled the trigger.

Amazingly, the shotgun merely produced a clicking sound. Anthony grabbed the barrel of the gun while defendant cocked the gun and pulled the trigger but it did not discharge. The two fought for control of the shotgun while defendant yelled to Darnell: "Kill him, kill him, you got to kill him too, he got to die too!" Darnell grabbed a knife and approached Anthony, who managed to fend Darnell off while still fighting with defendant. Darnell ran through the kitchen and out the back door screaming: "I'm going to kill you motherf* * *er, if you hurt my nephew or cousin I'm going to kill your ass" and "You better not kill my uncle, (sic) I'm going to kill your ass, I'm going to kill your ass." Darnell ran to his grandparents house and told his grandparents and mother that Anthony and defendant were fighting.

Anthony and defendant continued to wrestle over the gun. During the struggle, Anthony attempted to grab the phone to call the police. However, defendant pulled the phone out of the wall and the struggle for the gun continued.

Darnell returned to the scene with his mother Darlene and his grandparents. The struggle continued until, finally, with Darlene's encouragement, defendant let go of the shotgun. Defendant and Darnell then ran out of the house. Victim was pronounced dead at the scene.

Defendant was arrested and a Petition, which is not part of this record, was filed in juvenile court alleging first degree murder, first degree burglary, first degree assault, and armed criminal action. The Chief Juvenile Officer filed a Motion to Dismiss the Petition to Allow Prosecution of Defendant Under the General Law of Missouri, in which she alleged that defendant was not a proper subject to be dealt

70 S.W.3d 501

with under the provisions of the Juvenile Code for the following reasons:

(a) The offenses alleged are serious and protection of the community requires that the matter be transferred to a court of general jurisdiction;

(b) The offenses alleged involved viciousness, force and violence;

(c) The offenses alleged were against persons, property and the State of Missouri;

(d) The [j]uvenile has no previous referrals to the Juvenile Court;

(e) The juvenile is sophisticated in his pattern of living and associations;

(f) The age of the juvenile does not preclude certification;

(g) A need for long term treatment in a structured setting and environment, with more controls and for a longer period of time than are available under the Juvenile Code is indicated in order to effect the rehabilitation of the juvenile; [and]

(h) Racial disparity in certification is not a factor in this matter.

The Chief Juvenile Officer also filed a report recommending certification of defendant as an...

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