State v. Warren

• Decision Date: 24 August 2004
• Docket Number: No. ED 82306.,ED 82306.
• Citation: 141 S.W.3d 478
• Parties: STATE of Missouri, Respondent, v. Brian WARREN, Appellant.
• Court: Missouri Court of Appeals

141 S.W.3d 478

STATE of Missouri, Respondent, v. Brian WARREN, Appellant.

No. ED 82306.

Missouri Court of Appeals, Eastern District, Division Three.

August 24, 2004.

Appeal from the Circuit Court, City of St. Louis, Joan Burger, J Gwenda R. Robinson, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.

Before MARY R. RUSSELL, P.J., WILLIAM H. CRANDALL JR., J., and CLIFFORD H. AHRENS, J.

PER CURIAM.

Brian Warren ("defendant") appeals from the judgment entered after a jury convicted him of three counts of murder in the first degree (Count I, Count III, and Count V) in violation of section 565.020 RSMo 2000¹ and three counts of armed criminal action (Count II, Count IV, and Count VI) in violation of section 571.015. Defendant was charged as a prior and persistent offender acting in concert with Torin Dyson ("Torin") in committing the murders of and armed criminal action against Herbert Robinson ("Herbert"), Dirk Austell ("Dirk"), and Helena Murphy ("Helena").² After a jury trial, defendant was convicted on all counts and sentenced as a prior and persistent offender to three terms of life imprisonment without parole for Counts I, III, V, and three terms of life imprisonment for Counts II, IV, and VI. We affirm in part and remand in part.

Viewed in the light most favorable to the verdict, the evidence shows the following. Late in the evening of March 14, 2001, Glenn Robinson ("Glenn") went to visit his cousin, Herbert, in the latter's apartment. Herbert, a drug-dealer, lived on the ground floor of a two-family flat in the City of St. Louis with his girlfriend, Ronetta Simmons ("Ronetta") and her three children. Glenn lived in the apartment on the second story of the same two-family flat with his girlfriend and children. Glenn fell asleep while watching television waiting for Herbert. Glenn briefly woke up and noted that Herbert was in the room, but returned to sleep.

In the early hours of the morning of March 15, 2001, Glenn awoke to the sound of the front door being loudly opened, and saw Herbert fall on the floor, grappling with a man, later identified as Torin, atop him, striving for control of a gun. Glenn went to aid Herbert and observed another man with a gun in his hand, defendant, standing in the doorway, who told him to get back into Herbert's living room. Herbert continued to grapple with Torin on the floor. Glenn tried to enter the hallway again and was warned by defendant to get back or he would be killed. Glenn tried to enter the hallway a third time when he heard Ronetta screaming, and again defendant told him to retreat or he would kill him. Glenn again retreated, but reentered the hallway when Ronetta continued to scream, and told her to get back in the room. Defendant pointed the gun at Glenn's head and told him not to stick his head out again or he would kill him.

Glenn again went back into the living room. He heard Torin ask defendant for help, telling him to shoot Herbert, to which defendant replied "I can't. You in the way." Glenn then observed defendant approach Herbert and strike him repeatedly on the head. Glenn tried to enter the hallway a fifth time, but defendant turned, pointed the gun at him, and told him to get back. Glenn complied, retreating as far back in the living room as he could. He heard a shot, whereupon he ducked behind the couch, looked up and saw Herbert fall back, heard a number of shots and ducked back down. After a while, Glenn emerged from his hiding place and saw the Herbert bleeding from his wounds. He noticed the gun over which Herbert and Torin had struggled in the hallway, picked it up and noted that it had no clip. Glenn spoke with the police after they arrived, and subsequently identified defendant and Torin in line-ups. Police recovered twelve bullet casings from the scene, a number of bullets from the body of Herbert, and a fingerprint from the front door handle. Neither the bullets nor the casings came from the gun found by Glenn. An autopsy showed that Herbert had been shot twelve times, once in the chest, once in the hip, once in the perineum, and nine times in his right thigh. The police laboratory determined that the seven bullets recovered from Herbert's body all came from the same gun, and also that all of the shell casings came from the same gun.³

Several weeks after Herbert's murder, on April 1, 2001, Helana and her three children returned to their home in the City of St. Louis which they shared with Helena's boyfriend, Dirk, a drug-dealer, after an evening that Helena and her children had spent with her family. Dirk was not home at that time. Helena spoke with her sister between 10:30 p.m. and 10:45 p.m. Aigner Murphy ("Aigner"), Helena's oldest daughter, fell asleep in her mother's bedroom, and was awakened by a stranger. The stranger and another person sent her to her brother's room, and later brought her baby sister there as well. Aigner heard the strangers, defendant and Torin, talking about money, with one saying that he knew there was over a thousand dollars there. Aigner fell asleep, but woke up when she heard the door open and Dirk's voice, and yelling and crying. The stranger who had carried her baby sister into the room came back and removed the Sony PlayStation and some games. Subsequently Aigner heard gunshots, but went back to sleep.

In the morning, Aigner found the bodies of Helena and Dirk, and called her grandmother, who told her to call the police. The police found the bodies face down, their heads covered with pillows with bullet holes in them. They recovered several shell casings and a live bullet from the living room. The police discovered that the house had been roughly searched and was in disarray. Autopsies showed that both Helena and Dirk had been shot several times. A bullet was recovered from Helena's hand, and several bullet fragments were recovered from Dirk's body. Tests determined that the casings recovered at Helena's residence were all fired from the same gun. Tests also showed that the gun used to fire these shell casings also fired the shell casings found at Herbert's home. Further, tests showed that bullet recovered from Helena's hand had been fired by the same gun that fired the bullets recovered from Herbert's body.

At trial, Ronetta testified that she was living with Herbert on March 15, 2001, and that he made his living as a drug-dealer. She stated that she went to sleep early that evening, and woke up when she heard arguing. She stepped into the hallway and saw two men whom she could not identify and Herbert. She said from her vantage she could see Glenn standing in the living room doorway. Ronetta stated that she fled through the back door and down the alley to her nearby cousin's house when one man pointed a gun at her. She testified that while at her cousin's house she heard "a lot" of gunshots. She returned to her home after the police arrived, sometime near 3:00 a.m.

Glenn testified to the events as previously set forth. He stated that he viewed a lineup for the police on April 12, 2001, and that no one influenced him when he viewed the lineup. Looking at a photo of the lineup that he saw, Glenn stated that he identified Torin at the lineup on April 12, 2001, as the man who grappled with Herbert on the night of March 15, 2001. Glenn further testified that he looked at a different lineup on August 10, 2001, and that he was able to make an identification at that lineup as well. He stated that the man he identified at that lineup was the man with the gun in the doorway. Glenn examined a photo of the lineup, and said that it accurately reflected the lineup that he viewed on August 10, 2001. Glenn then made an in-court identification of defendant as the man who pointed the gun at him on the night of March 15, 2001.

Officer George Ratermann ("Officer Ratermann"), a police evidence technician, testified concerning the evidence that he gathered and preserved at the crime scene on the morning of March 15, 2001. He stated that he collected twelve shell casings and one live round at the scene, which he packaged for evidence. He also testified that he was able to take a latent fingerprint and a relift fingerprint from the outside of the storm door of Herbert's home, which he also marked and preserved for later identification.

Officer Raymond Oberschlep ("Officer Oberschlep"), a latent fingerprint examiner for the police, testified that the fingerprints collected by Officer Ratermann from the crime scene on March 15, 2001 matched the lift index fingerprint of defendant in a side-by-side comparison. Officer Oberschlep stated that he had no doubt in his mind that the fingerprints matched, and that no two people have the same fingerprints. Officer Oberschlep discussed the standard fingerprint identification procedures used, which included having his identification of the fingerprints re-examined by another qualified latent fingerprint examiner. This other examiner confirmed the match between the samples taken by Officer Ratermann and the print of defendant's left index finger.

Officer Dennis Conway ("Officer Conway"), who works in the firearms and tool mark identification section of the police laboratory, testified that the dozen shell casings recovered from the March 15, 2001 crime scene all came from the same gun, which was not the gun found by Glenn. Officer Conway also stated that the expended bullets, and the identifiable fragments recovered from Herbert's body came from the same weapon, which was not the gun found by Glenn. Officer Conway said that his work and expert opinion was checked by Frank Stubits ("Stubits"), who agreed with his conclusions.

Randi Cohns ("Randi") testified that she knew defendant, Torin, and Herbert, having bought drugs from Herbert. She stated that in the evening of March 14, 2001, defendant asked her to take him to Herbert's home to purchase drugs. She could not do so at that time. Randi said that...