State v. White

• Decision Date: 22 October 2002
• Docket Number: No. WD 59638.,WD 59638.
• Citation: 92 S.W.3d 183
• Parties: STATE of Missouri, Respondent, v. David M. WHITE, Appellant.
• Court: Missouri Court of Appeals

92 S.W.3d 183

STATE of Missouri, Respondent, v. David M. WHITE, Appellant.

No. WD 59638.

Missouri Court of Appeals, Western District.

October 22, 2002.

As Modified November 26, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 26, 2002.

Application for Transfer Denied January 28, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John M. Schilmoeller, Assistant Appellate Defender, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before ULRICH, P.J., and SPINDEN and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

David M. White appeals the judgment of his convictions, after a jury trial in the Circuit Court of Jackson County, of murder in the second degree, § 565.021,¹ and armed criminal action (ACA), § 571.015, for which he was sentenced to consecutive life sentences in the Missouri Department of Corrections (MDOC).

In the appellant's sole point on appeal, he claims that the trial court plainly erred in giving Instruction No. 9, the verdict director submitting murder in the second degree, because it violated MAI-CR 3d 313.04, the mandatory instruction for submitting murder in the second degree and its Notes on Use, and the applicable law.

We reverse and remand for a new trial.

Facts

The appellant met the victim, Adina Fabela, through a dating service on or about one week prior to September 2, 1998. After their initial meeting, the appellant and Fabela spent the majority of one week together at the appellant's grandmother's apartment in Lee's Summit, Missouri, the appellant's residence at that time. During this week together, the appellant and Fabela engaged in unprotected sex. Sometime during this period of time, the appellant came to believe that Fabela had the AIDS virus and that he may have contracted it from her.

On September 2, 1998, Fabela arrived at the appellant's apartment with her infant son. The appellant's sister, Deliska Keith, and her boyfriend, Brian Herridge, who were at the apartment when Fabela arrived, offered to babysit Fabela's son that afternoon. Fabela accepted the offer, and Keith and Herridge left the apartment with the child. At some point that afternoon, the manager of the apartment complex made contact with the appellant and advised him that he had to vacate the apartment immediately because the lease had expired. As a result, the appellant loaded all of his belongings, which included a 12-gauge pump-action shotgun, into Fabela's car, and the two of them left the apartment complex.

The appellant and Fabela drove to Longview Lake, where Fabela spoke with a friend, Misty Packer, on the appellant's cell phone. Packer testified at trial that Fabela sounded somewhat frightened when she spoke with her. After speaking with Packer for a short time, Fabela was told by the appellant to end the conversation, which she did. The appellant then received a call from Herridge concerning where Fabela should pick up her son.

After leaving Longview Lake, the appellant pulled into an unidentified driveway, took his shotgun out of the trunk and placed it inside the car. Upon seeing that, Fabela opened the passenger door and ran behind a tree. The appellant eventually persuaded Fabela to get back into the car, after assuring her that he was not going to hurt her. As the appellant continued driving, Fabela made several attempts to jump out of the car, but the appellant grabbed her and prevented her from doing so.

The appellant continued driving until they arrived at Bergin Lake in Blue and Gray Park. The appellant parked the car, loaded the shotgun and exited the vehicle. The appellant asked Fabela whether she was going to tell him if she had AIDS. Fabela did not answer, but followed the appellant, still armed with the shotgun, into a nearby wooded area. Once in the woods, the appellant asked Fabela again whether she had AIDS. Without responding, Fabela grabbed the barrel of the shotgun and told the appellant to pull the trigger. The appellant then attempted to hug Fabela, but she began hitting and pushing him. As a result, the appellant began firing the shotgun at Fabela. The appellant first shot Fabela in the legs and then gradually worked his way up to her head, shooting her six times in all. An autopsy later revealed that the shot to Fabela's head or either of the two shots to her chest would have been sufficient to cause her death.

Following the shooting, the appellant left the park in the victim's car and drove to the apartment of a friend, Greg Anderson. While at Anderson's apartment, the appellant called Keith and Herridge, who arrived at the apartment shortly thereafter. The appellant told Anderson, Keith, and Herridge that he had killed Fabela. Following this admission, the appellant drove Fabela's car to the Hyper-Mart in Kansas City, Missouri, and left it in the parking lot. Keith and Herridge then took the appellant to his mother's house where he also admitted to his mother that he had killed Fabela. The appellant's mother and Keith took Fabela's son to the police station, while the appellant's grandmother drove him to Stockton Lake, where he was arrested by law enforcement six days later.

On October 6, 1998, the appellant was charged by indictment in the Circuit Court of Jackson County with murder in the first degree, § 565.020, and ACA, § 571.015. His case proceeded to a jury trial on December 11, 2000. The jury was instructed on murder in the first degree; the lesserincluded offense of murder in the second degree, § 565.021, and voluntary manslaughter, § 565.023; and ACA. On December 15, 2000, the jury returned guilty verdicts of murder in the second degree and ACA, and recommended life sentences on both convictions. On January 26, 2001, after the trial court had overruled the appellant's "Motion for Judgment of Acquittal or, in the Alternative, For a New Trial," it sentenced him to consecutive life sentences in the MDOC.

This appeal follows.

I.

In the appellant's sole point on appeal, he claims that the trial court plainly erred in giving Instruction No. 9, the verdict director instructing the jury on murder in the second degree, because it violated MAI-CR 3d 313.04, the mandatory instruction for submitting murder in the second degree and its Notes on Use, and the applicable law. Specifically, he claims that the instruction was in error because it submitted paragraph third, dealing with sudden passion, and paragraph fourth, dealing with self-defense, in the disjunctive rather than in the conjunctive, such that the State was relieved of its burden of proving all the essential elements of the offense of second-degree murder.

The appellant concedes that he did not properly preserve his claim of instructional error in this point for appellate review in that he failed to make a specific objection at trial to the giving of Instruction No. 9 and did not raise the issue in his motion for new trial. Rule 28.03;² State v. Bradshaw, 26 S.W.3d 461, 471 (Mo.App.2000). He, therefore, asks for plain error review under Rule 30.20. The State contends that plain error review is precluded in that the challenged instruction was submitted by the appellant, citing State v. Clay, 975 S.W.2d 121, 133 (Mo. banc 1998) and State v. Gorman, 940 S.W.2d 543, 546 (Mo.App. 1997).

It would appear that the cases cited by the State can be cited for the general proposition that an appellant cannot challenge the validity of an instruction on appeal which he or she offered at trial. However, having reviewed the record, we cannot say that the appellant "submitted" the instruction such that he would be foreclosed from requesting plain error review thereof under Rule 30.20. In that regard, the record indicates that, although Instruction No. 9 was prepared by the State, it was deemed by the trial court as being "tendered" by the appellant and was marked accordingly. The court did not give a reason why it deemed Instruction No. 9 as being tendered by the defense, when it was prepared by the State. Given the fact that the State actually prepared the second-degree murder verdict director, Instruction No. 9, we cannot agree that the appellant, in the context of waiving plain error review, was deemed to have submitted the instruction.

Even assuming that the appellant did submit Instruction No. 9 for purposes of Rule 30.20, appellate decisions other than those cited by the State, including those of the Missouri Supreme Court, appear to hold that plain error review of an instruction is not precluded due to the submission of the instruction by the appellant. See State v. Chambers, 891 S.W.2d 93, 105 (Mo. banc 1994); State v. Parker, 886 S.W.2d 908, 928-29 (Mo. banc 1994); State v. Hayes, 23 S.W.3d 783, 788 (Mo.App. 2000). We would admit, however, that there appears to be some confusion on this issue. In Clay, cited by the State, the Supreme Court, favorably citing Parker, stated that the "appellant may not now challenge the validity of Instruction 17 because he submitted it at trial" and did not discuss the issue of plain error review. Clay, 975 S.W.2d at 133. The Court previously had held, however, in Parker that: "[The appellant] himself offered Instruction 18, and may not turn around and challenge it. State v. McMillin, 783 S.W.2d 82, 97 (Mo. banc 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). Nonetheless, this Court will review for plain error. Rule 30.20." 886 S.W.2d at 928-29. The Court used nearly the identical language of Parker in Chambers, 891 S.W.2d at 105.³ In not mentioning plain error review in Clay, it is unclear whether it overruled Chambers and Parker on the issue of plain error review of the instructional error claimed. One would think not in that Clay did not expressly hold that plain error review was precluded and, in addition, favorably cited Parker. Given those circumstances and the express holdings in Chambers and Parker...