State v. Thompson

• Decision Date: 20 May 2003
• Docket Number: No. WD 59840.,WD 59840.
• Citation: 112 S.W.3d 57
• Parties: STATE of Missouri, Respondent, v. Arthur S. THOMPSON, Appellant.
• Court: Missouri Court of Appeals

112 S.W.3d 57

STATE of Missouri, Respondent, v. Arthur S. THOMPSON, Appellant.

No. WD 59840.

Missouri Court of Appeals, Western District.

May 20, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 1, 2003.

Application for Transfer Denied August 26, 2003.

Michael S. Askinosie, Teresa Grantham, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, John Munson Morris, Breck Burgess, Attorney General Office, Jefferson City, for respondent.

RONALD R. HOLLIGER, Judge.

Arthur Scott Thompson appeals from his conviction and sentence to life in prison without the possibility of parole for first-degree murder (§ 565.020, RSMo 2000). Thompson raises ten points on appeal including the sufficiency of the evidence, errors in evidentiary rulings and voir dire, and two points of claimed instructional error. We find that the court properly denied Thompson's motion for judgment of acquittal but erred in failing to follow the Notes on Use under MAI-Cr 3d 304.04 and to modify the verdict director on first-degree murder. We discuss the remaining points to the extent that they are likely to reoccur at retrial.

Facts

As Thompson challenges the sufficiency of the evidence, the evidence viewed in the light most favorable to the verdict is as follows:

Thompson was a member of a gang led by Andrae Kirk in Bolivar, Missouri. Other members of the gang included Mike Sutton (the murder victim), Jason Huber, and Mark Rich. About five weeks before Sutton's murder, Kirk told Thompson that Sutton could not be trusted and needed to be killed. This discussion took place in front of Huber and a woman named Lillie White. When Kirk indicated that Sutton needed to be killed, Huber and White nodded their heads in agreement.

On August 17, 1998, two gang members asked Thompson if they could borrow his car to take Sutton to Kirk's house in Bolivar. Apparently, the gang members were going to give Sutton a "violation." This meant that Sutton had violated gang rules and was either going to be hurt or killed as a result.

Thompson did not loan the gang members his car. However, later that afternoon, Thompson, Huber, and a female gang member picked up Sutton from his residence and drove him to Kirk's house. From the time they arrived at 1:45 p.m. until 9:30 p.m., no one mentioned the violation that was to be given to Sutton. Thompson left Kirk's house at 9:30 p.m. to pick up another female gang member, Libby Oliver, from her job in Buffalo. When Thompson left Kirk's house, people there were drinking and partying.

After Thompson picked up Oliver they returned to Kirk's house. En route to Kirk's, Thompson told Oliver that Sutton was going to get a violation.

When Thompson arrived at Kirk's at around 10:30 p.m., a gang member approached him and told him that he needed to open his trunk. Thompson gave the gang member the keys, and he opened the trunk. Mark Rich and Lillie White then removed everything from Thompson's trunk.

Thompson walked to the back of the house where he saw Sutton lying on the ground with a huge gash over his right eye. Sutton was bruised and bleeding. Thompson saw that Sutton was alive. Kirk, Huber, and Rich moved Sutton into the house and laid him on some towels.

Kirk took a black-handled, serrated knife from his kitchen and placed it in a plastic sack and handed it to Mark Rich. Kirk told Rich to "finish it off."

Rich and Huber placed Sutton in the trunk of Thompson's car. Rich placed the plastic sack containing the knife in the glove compartment of the car. Thompson got into the driver's seat of his car and Rich and Huber got into the passenger compartment. Thompson drove the car away as the men looked for a place to dump Sutton's body.

At 11:00 p.m., Polk County Deputy Scott Grant initiated a traffic stop of Thompson. Thompson and the two other men in the car appeared to be calm and collected to Deputy Grant. Deputy Grant told Thompson that his license plate tab was in the wrong place. The deputy determined that there were no warrants for Thompson or Mark Rich and told Thompson that he was free to go. Thompson then drove east on Highway 32 toward Buffalo.

Upon reaching a low-water bridge over Lennley Creek off of Highway J in Dallas County, about four miles from Buffalo, Thompson stopped the car. Rich and Huber then removed Sutton from the trunk of the vehicle. Sutton was screaming. Huber stomped on Sutton's throat and his screaming stopped. Frightened that they heard someone coming, the men threw Sutton off the bridge and into the water and drove off.

Soon Thompson turned his car around and the men went back to the bridge. Huber went to Sutton and rolled him onto his back. Rich with a plastic bag covering his hand took the black-handled knife that was in the glove compartment of the car and cut Sutton's throat four or five times. The men rolled Sutton's body into the creek water. Rich then tossed the bag and knife into the water.

Thompson drove Rich and Huber back to Kirk's house. Rich threw his clothes into a dumpster. Thompson stayed the night at Kirk's house.

The next morning, a farmer saw Sutton's body in the creek water by the bridge and called the Dallas County Sheriff. Law enforcement officers located Sutton's body. Investigators determined that Sutton died from the deep cuts to his neck that severed both his jugular veins and ninety percent of his trachea. It was also determined that Sutton suffered a brain injury from the beatings that, left untreated, would have been fatal. Sutton's body was bruised, including defensive wounds on the back of his forearms. In addition, his body had a massive amount of swelling, deep scratches, and deep lacerations. Officers also found the knife and bag at the bridge near Sutton's body. Blood was not detected on the knife; however, the bag screened positive for the presence of blood.

Later that day officers observed Thompson in the driveway of Kirk's house washing his car using a fire hydrant and a bucket. They also saw him pouring liquid from a milk jug sized bottle on the back of his car. Upon investigation, law enforcement determined the trunk of Thompson's car had been cleaned with bleach.

Officers obtained a search warrant for Kirk's residence. In his home, they found packaging for a set of five Faberware knives, and four black-handled Faberware knives matching the knife found at the murder scene.

That evening, a Dallas County Sheriff's deputy interviewed Thompson. Thompson told the deputy about the events leading up to the murder of Sutton and about the murder. The following day, Thompson gave officers more details about the events surrounding Sutton's murder.

Sufficiency Of The Evidence

Thompson first contends the trial court erred in overruling his motion for judgment of acquittal based on insufficient evidence of deliberation upon the murder by Thompson. Thompson argues that evidence of personal deliberation cannot be proven by inference unless the defendant personally caused the victim's death.

The State responds that the trial court did not err when it overruled Thompson's motion for judgment of acquittal because there was sufficient evidence to support Thompson's conviction for murder under a theory of accomplice liability in that a reasonable juror could have inferred from the evidence that Thompson deliberated upon the murder of Sutton.

We must determine if the State presented sufficient evidence from which a reasonable juror could have found defendant guilty beyond a reasonable doubt. State v. Bates, 70 S.W.3d 532, 534 (Mo. App.2002). This standard of review requires that we:

must look to the elements of the crime and consider each in turn.... [The Court is] required to take the evidence in the light most favorable to the State and to grant the State all the reasonable inferences from the evidence. [The Court] disregard[s] contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, [the Court] consider[s] whether a reasonable juror could find each of the elements beyond a reasonable doubt.

Id. (citing State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001)).

In a case of first-degree murder involving accomplice liability, the jury must find that the defendant himself deliberated. State v. Clemons, 946 S.W.2d 206, 216 (Mo. banc 1997). See also State v. O'Brien, 857 S.W.2d 212, 217 (Mo. banc 1993). "While the act of homicide may be imputed to an accomplice, the element of deliberation may not be imputed by association." Clemons, 946 S.W.2d at 216.

Proof that a defendant merely aided another with the purpose of facilitating an intentional killing is not enough to prove first degree murder. To make its case, the state must introduce evidence from which a reasonable juror could conclude beyond a reasonable doubt that the defendant (1) committed acts that aided his codefendant in killing the victims; (2) defendant's conscious purpose in committing the acts was that the victims be killed, and (3) defendant committed the acts after coolly deliberating on the victims' deaths for some amount of time, no matter how short.

Id. (citing O'Brien).

In State v. Gray, 887 S.W.2d 369 (Mo. banc 1994), the Supreme Court outlined three circumstances highly relevant to determining whether accomplice liability may be inferred for first degree murder: first, the defendant or a co-defendant in the defendant's presence made a statement or exhibited conduct indicating an intent to kill prior to the murder; second, the defendant knew that a deadly weapon was to be used in the commission of a crime and that weapon was later used to kill the victim; and third, the defendant participated in the killing or continued with a criminal enterprise after it was apparent that the victim was to be killed. 887 S.W.2d at 376-77.

In the instant case, the State presented sufficient evidence of statements or conduct by the defendant...