State v. Turner-Bey

• Decision Date: 04 June 1991
• Docket Number: A,No. WD,TURNER-BE,WD
• Citation: State v. Turner-Bey, 812 S.W.2d 799 (Mo. App. 1991)
• Parties: STATE of Missouri, Respondent, v. Oscarppellant. 41862.
• Court: Missouri Court of Appeals

Page 799

812 S.W.2d 799

STATE of Missouri, Respondent, v. Oscar TURNER-BEY, Appellant.

No. WD 41862.

Missouri Court of Appeals Western District.

June 4, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 30, 1991.

Application to Transfer Denied Sept. 10, 1991.

Susan M. Hunt, Kansas City, for appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and LOWENSTEIN, ULRICH and BRECKENRIDGE, JJ.

ULRICH, Judge.

Oscar Turner-Bey was convicted by a jury of second-degree murder (§ 565.021, RSMo 1986) ¹ and armed criminal action (§ 571.015) on February 24, 1989. The Circuit Court of Jackson County, Missouri, sentenced Mr. Turner-Bey, as a class X offender, to two consecutive life sentences. Mr. Turner-Bey subsequently filed a Rule 29.15 motion for postconviction relief which was denied following an evidentiary hearing. Mr. Turner-Bey brings this consolidated appeal contending that the convictions and denial of postconviction relief should be reversed. The circuit court's judgment is affirmed.

On December 24, 1987, Oscar Turner-Bey was arrested in Jackson County, Missouri, and charged, by criminal complaint, with first degree murder and armed criminal action. On January 8, 1988, a grand jury returned an indictment charging Mr. Turner-Bey with first degree murder and armed criminal action. On December 5, 1988, Mr. Turner-Bey's trial commenced before a jury in the Circuit Court of Jackson County, Missouri. Prior to the trial commencing, on December 5, 1988, the prosecuting attorney filed an amended information in lieu of the prior indictment charging Mr. Turner-Bey, as a class X offender, with first degree murder and armed criminal action.

On December 8, 1988, after four days of trial, the case was submitted to the jury. Following approximately three hours of deliberations, the jury returned to the courtroom and announced that it was deadlocked in a seven-to-four vote with one juror undecided. The trial court sent the jury back to the jury room with instructions that it could continue deliberations or, if the jury believed that further deliberations were hopeless, it could discontinue. After deliberating an additional hour and half, the jury sent a note to the court again indicating that it was deadlocked. Mr. Turner-Bey requested that the court submit MAI-CR 3d 312.10, the "hammer instruction," to the jury. The prosecutor opposed this request. At that time, the jury returned to the courtroom, the court denied Mr. Turner-Bey's request and declared a mistrial.

Mr. Turner-Bey's second trial was scheduled to commence on February 21, 1989. On February 8, 1989, the prosecuting attorney telephoned defendant's counsel and informed him that a new witness would be called at this second trial. The prosecutor refused to disclose the new witness' name at that time but informed Mr. Turner-Bey's attorney that the new witness was an inmate at the Jackson County Jail. On February 10, 1989, the prosecuting attorney again telephoned Mr. Turner-Bey's attorney and revealed the name of the new witness, Roland Allen. On February 16, 1989, the prosecutor produced Mr. Allen for deposition by Mr. Turner-Bey. Mr. Turner-Bey learned the substance of Mr. Allen's testimony for the first time during the deposition.

On February 21, 1989, Mr. Turner-Bey's second trial commenced, and resulted in his conviction. Viewed in the light most favorable to the verdict, the evidence at the second trial revealed that on December 24, 1987, at approximately 1:40 a.m., Philip Richardson was watching television in his bedroom when he heard two gunshots from outside his window. Mr. Richardson turned off the television and bedroom light and looked out the window. Mr. Richardson saw a tall, heavy man standing over a second man lying on his back. Two other individuals were standing near the heavyset man. At this time, Mr. Richardson telephoned the police that a shooting had occurred. When Mr. Richardson hung up the telephone, he observed the heavyset man converse with the two other individuals, grab the person lying on the ground by the collar, and drag him to the back of a pickup truck parked nearby. Mr. Richardson also observed the heavyset man open the passenger door of the pickup truck and place something inside the truck.

Moments later, members of the Kansas City, Missouri, Police Department responded to a dispatcher's call regarding the shooting. The responding officers stopped a pickup truck within blocks of where the shooting occurred. Mr. Turner-Bey was the sole occupant of this pickup truck. One of the officers walked to the back of the truck, discovered blood on the tailgate, looked into the bed of the truck and observed Anise Davis suffering from two gunshot wounds. The officer checked for vital signs but found none. However, subsequent medical testimony established that the victim was alive at this time and continued to live for approximately another hour and fifteen minutes. Police officers present where the truck was stopped also noticed blood on Mr. Turner-Bey's jacket, pants and tennis shoes. A forensic chemist testified at trial that the blood on Mr. Turner-Bey's clothing matched that of the victim, Anise Davis. A large caliber rifle was also found on the passenger side in the cab of the pickup truck. This rifle was subsequently determined to be the weapon that fired the fatal shots killing Anise Davis. Additionally, Roland Allen testified that while an inmate in jail with Mr. Turner-Bey, the defendant admitted his involvement in Anise Davis' murder on two separate occasions.

Following this evidence, the trial court submitted the case to the jury. The jury instructions included instructions Nos. 7 and 9. Instruction 7 was a verdict-directing instruction for second-degree murder which encompassed an acting in concert theory of criminal liability. Instruction No. 9 was a verdict-directing instruction for armed criminal action, also encompassing an acting in concert theory of criminal liability. The jury returned verdicts finding Mr. Turner-Bey guilty of second-degree murder and armed criminal action.

Mr. Turner-Bey subsequently filed a Rule 29.15 motion for postconviction relief. The trial court held an evidentiary hearing and denied Mr. Turner-Bey's motion. Mr. Turner-Bey consolidates his direct appeal from the convictions for second degree murder and armed criminal action with his appeal from the circuit court's denial of his Rule 29.15 motion for postconviction relief.

For point (1), Mr. Turner-Bey contends the trial court erred in conducting a second trial following the deadlocked jury in his first trial because the second trial violated his constitutional right to be free from double jeopardy. Mr. Turner-Bey argues, in essence, that the first jury's inability to arrive at a verdict demonstrates that reasonable doubt exists as to his guilt. However, "[t]he argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country." Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978). "Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial" without violating his constitutional right to be free from double jeopardy. Id.

The law is well settled that neither the state nor federal constitution bars a defendant's second trial after a mistrial has been declared as a result of a deadlocked jury in the first trial unless the trial court abused its discretion in declaring the mistrial. State v. Perry, 643 S.W.2d 58, 61 (Mo.App.1982). "[A] jury's genuine inability to agree on a verdict constitutes 'manifest necessity' warranting the declaration of a mistrial." State v. Verschueren, 595 S.W.2d 770, 772 (Mo.App.1980). The trial court is in the best position to consider the total circumstances surrounding the jury's deadlock. Id. In particular, the length of time which a jury is permitted to deliberate as well as the determination of whether to read MAI-CR 3d 312.10, sometimes called "the hammer" instruction, to a jury are matters committed to the trial court's sound discretion. State v. Anderson, 698 S.W.2d 849, 853 (Mo. banc 1985). This court's review is limited to determining whether the trial court abused its discretion. State v. Williams, 652 S.W.2d 102, 111 (Mo. banc 1983).

Under the circumstances of this case, the trial court permitted the jury in the first trial to deliberate for four and one-half hours resulting in a deadlock. Additional deliberations could have resulted in "needlessly wast[ing] valuable judicial resources" or may have coerced an erroneous verdict. Verschueren, 595 S.W.2d at 772 (quoting, U.S. v. Goldstein, 479 F.2d 1061, 1068 (2d Cir.1973)). Under these circumstances, the trial court did not abuse its discretion in declaring a mistrial.

Mr. Turner-Bey also contends the second trial violated his constitutional right to be free from double jeopardy because, in the second trial, the State submitted the case on a different theory of criminal liability than presented during the first trial. In the first trial, the prosecutor sought to convict Mr. Turner-Bey only as a principal and the trial court did not instruct the jury on an acting in concert theory of criminal liability. In the second trial, the court submitted instructions Nos. 7 (pertaining to second degree murder) and 9 (pertaining to armed criminal action) to the jury, both encompassing an acting in concert theory. Mr. Turner-Bey contends that the addition of the State's acting in concert theory constitutes a change in the State's theory and therefore, the second trial under this new theory violated his constitutional right to be free from double jeopardy.

Pursuant to Missouri law, an accused is responsible for criminal...