State v. Whitfield, 77067
| Decision Date | 21 January 1997 |
| Docket Number | No. 77067,77067 |
| Parties | STATE of Missouri, Respondent, v. Joseph WHITFIELD, Appellant. |
| Court | Missouri Supreme Court |
C. John Pleban, Richard P. Hereford, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Christine M. Blegen, Assistant Attorney General, Jefferson City, for respondent.
A jury convicted Joseph Whitfield of first degree murder and armed criminal action. After the jury deadlocked on punishment, the trial judge sentenced Whitfield to death on the murder charge and life in prison on the armed criminal action charge. The postconviction court overruled Whitfield's Rule 29.15 motion. This Court has jurisdiction. Mo. Const. art. V, § 3. We affirm the conviction, sentence, and denial of postconviction relief.
The evidence at trial, which we review in the light most favorable to the verdict, State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following:
On January 20, 1988, Ronald Chester, a paraplegic, picked up Maria Evans in his modified Lincoln to help him run some errands. Chester's wheelchair was in the front passenger seat, and Evans sat in back. After completing the errands, Chester drove to the area of Sarah and Hodiamont streets in St. Louis, where he spoke with Joseph Whitfield, the appellant.
Whitfield was accompanied by a young girl whom he identified as his daughter. An unidentified woman approached Chester's car, claimed to be the young girl's mother, and asked Chester to take Whitfield and the girl home. When Chester agreed to do so, Whitfield and the young girl climbed into the rear seat of Chester's car with Evans. Whitfield was seated in the left rear behind the driver's seat, the young girl in the center rear, and Evans on the right.
At Whitfield's request, Chester agreed to stop at a liquor store and then to take Whitfield to St. Ferdinand Street. When they arrived at St. Ferdinand Street, Whitfield exited Chester's car quickly, leaving the young girl behind. Chester, wanting to leave but not knowing what to do with the young girl, waited for thirty to forty minutes for Whitfield to return. When he did not, Chester returned to the area of Sarah and Hodiamont to look for the woman who had claimed to be the young girl's mother. Unable to find her, he returned to St. Ferdinand, all the while carrying Evans and the young girl in his back seat.
Upon returning to St. Ferdinand, Chester parked in the same spot where he had left Whitfield. After a few minutes, Whitfield returned to the car, asked where Chester had been, and said that he would be just a few more minutes. When Whitfield exited the car this time, Evans asked him to take the young girl, but he refused. He then walked along the street to a car parked on the opposite side from, and one or two car lengths behind, Chester's car. Charles Porter and his girlfriend Linda Scott were in this car. At trial Scott testified that they were in the neighborhood to have Varney Bolden, a friend of Porter's, babysit Porter's and Scott's children. Porter was a friend of Whitfield's, and Scott was acquainted with Whitfield.
Whitfield tried to obtain heroin from Porter and Scott, but Porter refused to give him any because Whitfield had no money. Porter then gave Whitfield a loaded .38 caliber pistol and said something, unclear from the testimony, about "the guy in the car across the street," namely Chester.
Whitfield left Porter's car and returned to Chester's car, reentering the back seat directly behind Chester. Evans was still in the rear passenger side seat, and the young girl in the center. Whitfield then struck Chester in the back of the head with the gun and struck Evans in the forehead with the gun. About the same time, Bolden walked up to Chester's car and urged Whitfield to shoot the two adults. Whitfield complied, shooting Chester twice in the head, causing Chester to slump across the steering wheel, and in turn causing the car to roll across the street and across the opposite curb. Whitfield then turned toward Evans, but Evans grabbed the young girl and used her as a shield. Instead of shooting, Whitfield exited the car, pulling the young girl with him. From the passenger side, he then fired back into the car, at some point hitting Evans in the hand. Evans, hurt but alive, played dead, and Whitfield, Bolden, and the young girl fled.
Officer Jerry Leyshock heard a report of the shooting on his police radio and, having been previously acquainted with Whitfield, suspected he might be involved. He went to Barnes Hospital to speak with Evans, from whom he learned that the shooter and the young girl were named "Joe" and "Jodie." Bolstered by this information, Officer Leyshock and several other officers went to a residence on Wells Street, where they located Whitfield, Scott, and Jodie. After retrieving the gun from the residence's bathroom, the officers arrested Whitfield.
Whitfield's first trial ended on December 2, 1989, with a jury finding him guilty of first degree murder and recommending a sentence of death. That verdict and sentence were reversed on appeal. State v. Whitfield, 837 S.W.2d 503 (Mo. banc 1992). On retrial, the jury convicted Whitfield of first degree murder but could not agree during the penalty phase, voting 11-1 in favor of life imprisonment. Under the authority of § 565.030.4, RSMo 1994, the trial judge considered the statutory aggravating circumstances of Whitfield's previous convictions for second degree murder and manslaughter, the non-statutory aggravating circumstances of Whitfield's other, less serious crimes, and the mitigating circumstances, and imposed the death sentence. Whitfield timely filed a Rule 29.15 motion for postconviction relief setting out numerous claims, all denied. On appeal, Whitfield asserts several points of error, most of which involve various claims of ineffective assistance of counsel.
Whitfield asserts that the trial court erred when it overruled his motion to strike a certain venireperson for cause, necessitating the use of one of his peremptory challenges to remove this venireperson from the panel. The strike for cause, Whitfield explains, was grounded on the fact that the venireperson was the child of a homicide detective.
We need not review the trial court's decision not to remove this venireperson for cause, however, because the venireperson did not serve on the jury. Under § 494.480.4, RSMo 1994:
The qualifications of a juror on the panel from which peremptory challenges by the defense are made shall not constitute a ground for the granting of a motion for new trial or the reversal of a conviction or sentence unless such juror served upon the jury at the defendant's trial and participated in the verdict rendered against the defendant.
This point of error is meritless.
Whitfield contends that the trial court erred by submitting jury instructions charging a crime different from that in the original information filed against him. Because this issue is raised for the first time in this Court, we review only for plain error, State v. Isa, 850 S.W.2d 876, 884 (Mo. banc 1993), and we will find plain error only where there is manifest injustice or a miscarriage of justice. Rule 29.12(b); Isa, 850 S.W.2d at 884.
The information charging Whitfield with murder in the first degree alleged that Whitfield acted with Varney Bolden in the shooting of Ronald Chester. Instruction No. 5, which was the verdict director submitting the charge of murder in the first degree, did not mention Bolden, and Whitfield now states that he would have presented his defense differently had he been charged as a solo actor. It is well-settled, however, that the State may charge a suspect either as a principal or as an accomplice with the same legal effect. Isa, 850 S.W.2d at 898. Thus, Whitfield cannot show that a new or different crime was submitted to the jury.
Moreover, the variance, even if it was actionable, was neither material nor prejudicial. Variances are material when they affect whether the accused received adequate notice; variances are prejudicial when they affect the defendant's ability to defend against the charges. See State v. Ellis, 853 S.W.2d 440, 443 (Mo.App.1993). As to materiality, appellant received adequate notice that he was charged with having been involved in Chester's murder. Whether or not Whitfield was "acting with another" when he murdered Chester in no way vitiates the fact that Whitfield was apprised by the information that he had been implicated in the murder in this case. Appellant's ability to defend against the charge was also not affected. Whitfield claims that he believed he would be defending against "evidence that he and Varney Bolden acted together to commit the crime charged." His theory at trial, however, was that Varney Bolden had shot Chester and that he was simply sitting in the vehicle at the time of the shooting. The argument that the State should have instructed the jury to find Whitfield guilty if he or another person with whom he acted committed the murder was contrary to the defense strategy. Accordingly, the trial court committed no error, plain or otherwise, in submitting Instruction No. 5.
Whitfield argues that the trial court erred in submitting during the penalty phase Instruction No. 22, the statutory aggravating circumstance instruction, which listed Whitfield's prior conviction for manslaughter as a serious assaultive offense. Manslaughter, he submits, is not a statutory aggravating circumstance under § 565.032.2(l ), RSMo 1994, because it is not a serious assaultive offense. This matter was not raised in the motion for new trial, and again, we review only for plain error. Rule 30.20.
This Court recently determined that the line between serious assaultive offenses and other assaultive offenses is the line between felonies and...
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