State v. Thompson

• Decision Date: 25 June 2013
• Docket Number: No. ED 98425.,ED 98425.
• Citation: 401 S.W.3d 581
• Parties: STATE of Missouri, Respondent, v. Devarick THOMPSON, Appellant.
• Court: Missouri Court of Appeals

401 S.W.3d 581

STATE of Missouri, Respondent,

v.Devarick THOMPSON, Appellant.

No. ED 98425.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 25, 2013.

Ellen H. Flottman, Columbia, MO, for appellant.

Chris Koster, Attorney General, Jennifer A. Rodewald, Assistant Attorney General, Jefferson City, MO, for respondent.

KURT S. ODENWALD, Judge.

Introduction

Appellant Devarick Thompson (Thompson) appeals from the judgment entered upon a jury verdict of first-degree murder, Section 565.020,¹ and armed criminal action, Section 571.015. On appeal, Thompson argues that the trial court committed instructional error, erroneously admitted evidence, and incorrectly failed to grant two separate motions for mistrial. For the reasons detailed below, we find Thompson waived any appellate review of his first, second, fourth, and fifth points on appeal. Regarding his third point on appeal, which was not waived, we find that the trial court did not plainly err in failing to grant a mistrial after the State referred to the underlying death as a “gangland murder” during closing argument. Accordingly, the judgment of the trial court is affirmed.

Factual and Procedural History

The facts established at trial, viewed in the light most favorable to the verdict, are as follows. On the evening of June 15, 2010, Laverta and Ike Boykins (Mrs. and Mr. Boykins, respectively) allowed Thompson and several other individuals to stay overnight at their home. In the morning, Mrs. Boykins awoke to find Thompson walking into her bedroom with Joey Richmond (Richmond) walking behind him and pointing a handgun at Thompson's back. Richmond accused Thompson of stealing guns owned by Richmond, and demanded to know where Thompson had put them.

During Richmond's interrogation of Thompson, one-by-one, the other occupants of the house came into the Boykins's bedroom. Richmond forced each person to sit on the floor and wait while he continued questioning Thompson. After holding the group in the bedroom, Richmond moved all the individuals to the living room so that Mrs. Boykins could get dressed. Mrs. Boykins eventually left the house to go to work. Before she left, Richmond apologized to Mrs. Boykins, told her he did not intend to kill anyone, and asked her not to go to the police. Mrs. Boykins went immediately to a police station and reported the incident. The officers responded to the apparent hostage situation by asking Mrs. Boykins to fill out a report.

When Mrs. Boykins returned home later that day she saw all the same people sitting around and talking peaceably in her living room. Richmond eventually left the home with two of the people in the house to go to a liquor store. None of the occupants, including Thompson, left the house while Richmond was away. While Richmond was gone, Thompson stated that he would kill Richmond if he returned. Richmond returned shortly thereafter with the same two people, plus a third individual. Richmond did not have a gun, but two of the people with him had guns in their waistbands. The group of people began drinking the alcohol Richmond purchased from the liquor store.

As the group sat in the living room, Richmond stood up and walked into the kitchen to again apologize to Mrs. Boykins. While Richmond stood with his back to the living room, Thompson retrieved a gun from beneath the couch cushions where he was sitting, walked behind Richmond, and shot him twice in the back. After Richmond fell to the ground, Thompson shot him again in the head, kicked him, spit on him, and said “I told you I was going to get you.” Thompson then fled the house.

The State charged Thompson with first-degree murder and armed criminal action. Thompson testified in his own defense at trial. Thompson testified that Richmond was armed at the time Thompson shot him, that Richmond never left the house to go to the liquor store, and that Thompson shot Richmond in self-defense believing his life was in danger. A jury found Thompson guilty of both counts, and the trial court entered a judgment accordingly. Thompson now appeals.

Points on Appeal

Thompson presents multiple points on appeal. In his first point, Thompson argues that the trial court plainly erred in instructing the jury on self-defense without modifying the instruction to include the “appearance doctrine.” In his second point, Thompson contends that the trial court plainly erred in admitting into evidence a handgun recovered near the scene of the crime because the evidence was more prejudicial than probative. In his third point, Thompson asserts that the trial court abused its discretion in overruling his objection to the prosecutor's statement in closing argument that the murder was a “gangland killing.” In his fourth point, Thompson avers that the trial court abused its discretion in failing to declare a mistrial after an outburst from one of Richmond's family members occurred in the jury's presence. In his final point, Thompson claims that the trial court abused its discretion in admitting evidence that informed the jury he was incarcerated during the pendency of the trial.

Standard of Review

We review plain error under Rule 30.20². We will affirm unless we find the trial court committed an error that caused manifest injustice or a miscarriage of justice. Rule 30.20. Under plain error review, the movant must demonstrate that the trial court committed an error that was “evident, obvious, and clear” and that such error resulted in a “manifest injustice or miscarriage of justice.” State v. Roper, 136 S.W.3d 891, 900 (Mo.App. W.D.2004).

Discussion

I. Thompson waived appellate review of his first, second, fourth, and fifth points on appeal.

In his first and second points, Thompson claims that the trial court's decisions to offer the self-defense instruction given at trial, and to admit into evidence a handgun, resulted in plain error. Thompson concedes that he did not preserve either point on appeal. In his fourth point, Thompson argues that the trial court abused its discretion in failing to declare a mistrial after an emotional outburst by one of Richmond's family members occurred in the presence of the jury. In this fifth point, Thompson asserts that the trial court abused its discretion in admitting into evidence portions of an audio recording that revealed Thompson was imprisoned pending trial. Before we reach the merits of Thompson's first, second, fourth, and fifth points, we must satisfy ourselves that they are properly before this Court. A careful review of the record at trial establishes that they are not. We address each claim in turn.

Ordinarily, a movant may claim plain error based upon instructional error if the movant can demonstrate that the trial court misdirected or failed to instruct the jury to such an extent that the error affected the jury's verdict. State v. Dorsey, 318 S.W.3d 648, 652 (Mo. banc 2010) (internal citations omitted). The failure of a trial court to offer a self-defense instruction where the defendant has carried the burden of injecting the issue may also constitute plain error requiring reversal. State v. Bolden, 371 S.W.3d 802, 805 (Mo. banc 2012). However, an exception to the availability of plain error review of instructional error exists in cases where a flawed self-defense instruction was given, but the flawed instruction was offered by the party challenging the instruction on appeal. Id. at 806. In such cases, “[i]t is axiomatic that a defendant may not take advantage of self-invited error or error of his own making,” and the defendant has waived all appellate review related to the inaccuracy of the instruction. Id.

In his first point, Thompson challenges the adequacy of the self-defense instruction offered at trial. Specifically, Thompson claims that Instruction 12 failed to instruct the jury on the “appearance doctrine.” This doctrine states that whether the defendant was entitled to self-defense is determined by the circumstances as they appeared to the defendant, and not whether the defendant's conclusion as to the need for force was accurate. Wren v. State, 755 S.W.2d 677, 678 (Mo.App. E.D.1988). Here, the portion of Instruction 12 that deals with the appearance doctrine was submitted by Thompson. In his proffered instruction, as it relates to the appearance doctrine, Thompson requested the trial court instruct the jury as follows:

As used in this instruction the term “reasonable belief” means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

The instruction offered by the trial court, as it relates to the appearance doctrine, stated:

As used in this instruction, the term “reasonably believe” means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

Given that Thompson submitted to the trial court the section of the instruction he now claims as the basis for plain error, we find that Thompson has waived appellate review as to his first point on appeal. See Bolden, 371 S.W.3d at 806.

We reach the identical conclusion as to the admission of the evidence at issue in Thompson's second point. As is the case with instruction error, the erroneous admission of evidence may normally be raised on appeal as plain error when no objection was offered at trial. Plain error review is available where the party challenging the admission of the evidence failed to object because of inadvertence or negligence. State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009). However, an exception to the availability of plain error review exists where “a party affirmatively states that it has no objection to evidence an opposing party is...