State v. Weems

• Decision Date: 27 October 1992
• Docket Number: No. 74521,74521
• Parties: STATE of Missouri, Respondent, v. Michael WEEMS, Appellant.
• Court: Missouri Supreme Court

Page 222

840 S.W.2d 222

STATE of Missouri, Respondent, v. Michael WEEMS, Appellant.

No. 74521.

Supreme Court of Missouri,

En Banc.

Oct. 27, 1992.

Craig A. Johnston, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

PATRICIA BRECKENRIDGE, Special Judge.

Michael Weems appeals from his convictions, after jury trial, for murder in the first degree, § 565.020.1, RSMo 1986, ¹ robbery in the first degree, § 569.020, and armed criminal action, § 571.015, for which he was sentenced to consecutive sentences of life imprisonment without possibility of probation or parole and two thirty-year terms, respectively. He also appeals from the overruling of his Rule 29.15 motion for post-conviction relief. The appeals have been consolidated pursuant to Rule 29.15(1).

Mr. Weems presents six points in his direct appeal, claiming that the trial court erred by: (1) refusing to submit an instruction on self-defense; (2) overruling his motion for acquittal as to Count II, first degree robbery, as the evidence presented was insufficient to show that he forcibly stole property or caused serious physical injury in the course of stealing said property; (3) failing to sua sponte declare a mistrial due to error in the state's closing argument; (4) submitting the verdict directing instruction on armed criminal action because said instruction hypothesized that Mr. Weems committed the offense with a "deadly weapon" and the evidence was insufficient to prove he had done so; (5) admitting certain photographs into evidence as said photographs were prejudicial in that they were cumulative, gruesome and unduly inflammatory; and (6) advising defense counsel that it would instruct upon self-defense and then refusing to give such an instruction. In his 29.15 appeal, Mr. Weems challenges the denial of his motion for post-conviction relief contending that the motion court clearly erred because his trial counsel was ineffectual in advising him not to testify in his own defense. The judgment is reversed and the cause remanded for new trial. The 29.15 appeal is dismissed as moot.

On June 23, 1988, the body of Roy Chester Vales was discovered in the bedroom of his residence. There were sixteen injuries to Mr. Vales' head, including multiple areas of fracture to the skull and fracture to the jawbone. Expert testimony established that Mr. Vales was alive when the blows were struck and that the blows were of such force so as to cause damage to the function of Mr. Vales' brain. An electrical cord had been wrapped twice around Mr. Vales' neck and knotted, tightly enough to potentially cut off the air supply and blood supply to his head. The blows to Mr. Vales' head and the ligature around Mr. Vales' neck were competing causes of his death. There was a large amount of blood on the pillows at the head of the bed, as well as a splattering of blood on the wall behind the bed and on the furniture near the bed. After Roy Vales' body was found, it was also discovered that his car, a black Toyota Corolla, was missing. Mr. Vales had last been seen alive on June 18, 1988.

On the same day that the body was found, Antonio Jones saw Mr. Weems and asked him for a ride to the airport. Mr. Weems agreed, and Mr. Jones purchased five dollars in gasoline for the car Mr. Weems was driving, a black Toyota Corolla. Mr. Weems dropped Mr. Jones off at Jones' residence, telling him that he would return after freshening up. Mr. Weems never returned.

Mr. Jones tried to contact the driver of the Toyota whose name he believed to be Chester Vales, as he had seen that name inside of the car and discussed the distinctiveness of the name with Mr. Weems. Mr. Jones tried calling all the listed "Vales" in the phone book. Mr. Jones spoke with a woman who had known the deceased Mr. Vales. She informed Mr. Jones that Mr. Vales had been found dead that morning. Mr. Jones told the woman that Mr. Vales could not be dead because he had been with "Vales" earlier that morning. Mr. Jones later spoke to the police, telling them about his encounter with "Vales" and the black Toyota.

On June 24, 1988, Sergeant Alfred Adkins of the St. Louis City Police Department and Jackie Hendricks, an investigator for that same department, spotted Mr. Vales' car. Mr. Weems was standing in front of the car. He was arrested, advised of his Miranda rights and taken to the police department for questioning.

Mr. Weems' initial story was that he had acquired the car from Mr. Vales on June 18, 1988, because he had no transportation. Sergeant Adkins noticed that Mr. Weems was wearing shoes with soles similarly patterned to a bloody shoe print found on the sheets of Mr. Vales' bed. Sergeant Adkins had Mr. Weems remove the shoes. He noticed what appeared to be dried blood upon them. The sergeant informed Mr. Weems that he did not believe his story and that Mr. Vales had been found dead. Mr. Weems then described the events culminating in Mr. Vales' death. The officers took both an audiotaped and a videotaped statement. The audiotape was played to the jury during Mr. Weems' trial. Mr. Weems' out-of-court statements to police were the only evidence, other than the physical evidence, of the events that preceded Mr. Vales' death.

Mr. Weems related, in his audiotaped statement, that he had known Mr. Vales for a month and he had helped work on Mr. Vales' house. Mr. Vales asked Mr. Weems to have sex with him but had been rebuffed. Mr. Weems had been out with Mr. Vales on Saturday, June 18, 1988. Mr. Weems was drinking and Mr. Vales was smoking marijuana. Mr. Weems became intoxicated and started throwing up. He asked Mr. Vales if he could spend the night. Mr. Vales consented. The two men slept in the same bed with Mr. Vales' head at the head of the bed and Mr. Weems' head at the foot of the bed.

The following morning, Mr. Weems awoke to find Mr. Vales on top of him attempting to "have sex" with him. He pushed him off and ran from the room. Clad only in a pair of shorts, Mr. Weems armed himself with a hammer and returned to the bedroom to retrieve his clothing. ² Mr. Vales, semi-prone on the bed, told Mr. Weems he could only get his clothes and leave if they had sex. Mr. Weems called Mr. Vales a "bitch." Mr. Vales punched Mr. Weems in the head with his fist. Mr. Weems retaliated, hitting Mr. Vales with the hammer. A fight ensued, with Mr. Vales striking with his fists and Mr. Weems with the hammer. At one point Mr. Weems was attempting to go out the bedroom door, but Mr. Vales grabbed him and wouldn't let go. Mr. Weems bumped into a lamp, picked it up and pushed Mr. Weems with it. He then yanked the cord from the lamp. Mr. Weems reached behind himself while Mr. Vales had him in a choke-hold, wrapped the cord around Mr. Vales' neck and started pulling. He continued to pull until Mr. Vales let go.

Mr. Weems proceeded to dress in some of Mr. Vales' clothes, as his own clothing was covered with blood. He took a pair of Mr. Vales' sneakers to wear. He took forty dollars from Mr. Vales' wallet and a key to Mr. Vales' car. As he left, Mr. Weems ran across the bed, leaving a bloody footprint on the sheets. He took Mr. Vales' car and left.

At the time of the incident, Mr. Weems was nineteen years old, six-feet tall and weighed approximately 150 pounds. Mr. Vales was thirty-three years old, five-foot eleven inches tall and weighed approximately 185 pounds.

In his first point, Mr. Weems claims that the trial court erred by its refusal to submit to the jury defense Instruction A--Justification: Use of Force in Self Defense, based on MAI-CR3rd 306.06. The trial court has an obligation to submit a self-defense instruction if the issue is supported by the evidence, when viewed in the light most favorable to the defendant. State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984). Failure to submit such an instruction constitutes reversible error. Id. at 784; State v. Strother, 807 S.W.2d 120, 122 (Mo.App.1991).

The right to use force in defense of persons is codified in Section 563.031, which reads in pertinent part as follows:

1. A person may, subject to the provisions of subsection 2, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided

(a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force[.]

* * * * * *

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping.

3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

4. The defendant shall have the burden of injecting the issues of justification under this section.

Four elements must be present to allow the use of deadly force in self-defense. As set forth in Chambers, 671 S.W.2d at 783, they are:

(1) an absence of aggression or provocation on the part of the defender, (2) a real or apparently real necessity for the defender to kill in order to save himself from an immediate danger of serious bodily injury or death, (3) a reasonable cause for the defender's belief in such necessity, and (4) an attempt by the defender to do all within his power consistent with his personal safety to avoid the danger and the need to take a life.

As discussed in State v. McQueen, 431...