State v. Williams, s. WD

• Decision Date: 16 July 1991
• Docket Number: Nos. WD,s. WD
• Citation: 815 S.W.2d 43
• Parties: STATE of Missouri, Respondent, v. Charles Wesley WILLIAMS, Appellant. Charles Wesley WILLIAMS, Movant, v. STATE of Missouri, Respondent. 42826, WD 43746.
• Court: Missouri Court of Appeals

Page 43

815 S.W.2d 43

STATE of Missouri, Respondent, v. Charles Wesley WILLIAMS, Appellant.

Charles Wesley WILLIAMS, Movant, v. STATE of Missouri, Respondent.

Nos. WD 42826, WD 43746.

Missouri Court of Appeals,

Western District.

July 16, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 27, 1991.

Application to Transfer Denied Oct. 16, 1991.

Raymond L. Legg, Columbia, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, P.J., and GAITAN and ULRICH, JJ.

ULRICH, Judge.

Charles Wesley Williams was convicted by a jury of first degree assault, § 565.050, RSMo 1986, ¹ unlawful use of a weapon, § 571.030, and armed criminal action, § 571.015. The Circuit Court of Boone County, Missouri, sentenced Mr. Williams as a prior and persistent offender to twelve years imprisonment for assault, a concurrent term of eight years imprisonment for unlawful use of a weapon, and a consecutive term of three years imprisonment for armed criminal action. Mr. Williams subsequently filed a Rule 29.15 motion for postconviction relief which the circuit court denied following an evidentiary hearing. On appeal, Mr. Williams contests the convictions and denial of postconviction relief.

On May 24, 1989, at approximately 6 p.m., Kenneth Jones was seated inside a 1975 Buick Electra parked on Elleta Boulevard in Columbia, Missouri. The Buick Electra was owned by Ricky Jones, who was standing outside of the automobile conversing with a friend. Also seated in the automobile with Kenneth Jones were Phillip McDuffey, Nikki Redd, Valerie Brown, and Valerie Brown's two young daughters.

The evidence, viewed in the light most favorable to the verdict, reveals that at approximately 6 p.m. Charles Wesley Williams was present with other individuals in a Chevrolet Impala also on Elleta Boulevard. The driver of the Impala parked across Elleta Boulevard from Mr. Jones' Buick Electra. Mr. Williams exited the Impala and yelled Kenneth Jones' name. Kenneth Jones recognized Mr. Williams from prior encounters between the two men which had resulted in arguments. Upon recognizing Mr. Williams, Mr. Jones exited the Buick Electra. According to the testimony, Kenneth Jones approached Charles Williams and said, "Man, I been lookin' for you." Mr. Williams responded, "Man, I been lookin' for you." An argument ensued between the two men.

As the argument between the two men progressed, Mr. Jones stepped back, reached behind his back with both hands, and pulled at his pants. Mr. Williams responded by drawing a hand gun. Kenneth Jones ran towards the Buick Electra and Mr. Williams fired a shot at him. Kenneth Jones dove into the front passenger side of the Buick Electra where Valerie Brown and one of her young daughters were seated. As Mr. Jones entered the car, Mr. Williams fired a second shot at him hitting the vehicle's passenger side front door. After Kenneth Jones had escaped into the automobile, Mr. Williams walked to the rear of the Buick Electra and fired one shot at the rear windshield. Following the shooting, Mr. Williams fled the scene in the Chevrolet Impala.

At approximately 6:05 p.m., the Columbia, Missouri Police Department received a call reporting the shooting on Elleta Boulevard. Upon arrival, the police discovered the Buick Electra with the rear windshield shot out, a bullet lodged in the dashboard, and a bullet lodged in a passenger side front door. The police found the Chevrolet Impala parked one block from the scene of the shooting. The police also found a gun holster in the Impala. Mr. Williams was subsequently charged and convicted by a jury of first degree assault, unlawful use of a weapon, and armed criminal action.

Mr. Williams filed a Rule 29.15 motion for postconviction relief. Following an evidentiary hearing, the circuit court denied Mr. Williams' request for postconviction relief. Mr. Williams consolidates his appeal from the circuit court's denial of postconviction relief with his appeal from the convictions.

On appeal, Mr. Williams contends that the trial court (1) violated his constitutional right to be free from double jeopardy by charging him with first degree assault and the lesser-included offense of unlawful use of a weapon; (2) plainly erred in failing to, sua sponte, submit a jury instruction for use of force in self-defense; and (3) erred and abused its discretion in refusing to allow Howard Williams to testify. Additionally, Mr. Williams contends (4) that the circuit court erred in denying his motion for postconviction relief because he received ineffective assistance of counsel at trial. The convictions and denial of postconviction relief are affirmed.

For point (1), Mr. Williams contends that the trial court violated his right to be free from double jeopardy by allowing the State to charge and convict him of unlawful use of a weapon. In particular, Mr. Williams contends that unlawful use of a weapon constitutes a lesser-included offense for the crime of first degree assault and does not require proof of any additional fact not required to establish guilt of first degree assault.

In determining double jeopardy, Missouri courts follow the separate or several offense rule rather than the same transaction rule. State v. Carter, 535 S.W.2d 537, 538 (Mo.App.1976). The separate or several offense rule "means that a defendant can be charged with and convicted of several offenses which arise from the same transaction, incident or set of facts, without violation of double jeopardy." Id. In Missouri, the courts follow the test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether a criminal defendant has been subjected to double jeopardy. See State v. Pollock, 738 S.W.2d 531, 532 (Mo.App.1987); State v. Whitehead, 675 S.W.2d 939, 943 (Mo.App.1984). In Blockburger, the Court stated The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

284 U.S. at 304, 52 S.Ct. at 182.

In applying Blockburger, Missouri courts have previously determined that, "[t]he ... charges of assault first degree under Section 565.050.1(1) RSMo. an unlawful use of a weapon, Section 571.030.1(4) RSMo., clearly are separate statutory offenses, each requiring distinct elements of proof not required by the other." Whitehead, 675 S.W.2d at 943. ² The court in Whitehead held, "where a defendant is charged with several crimes in the same series of events and each crime requires proof of a fact distinct from the others, then there is no double jeopardy even if there is some overlap in the proof necessary to establish the crimes." Id. Additionally, "[t]he fact that these elements may have occurred as a continuous course of conduct in a relatively short span of time does not prohibit the State of Missouri from charging two separate crimes." Id. at 943-44.

Mr. Williams relies upon State v. Sloan, 786 S.W.2d 919 (Mo.App.1990), as support for his contention that the convictions for first degree assault and unlawful use of a weapon violated his constitutional right to be free from double jeopardy. In Sloan, the defendant fired a single shot at the mobile home where his estranged wife was living. Id. at 920. The defendant's wife was in the mobile home's bathroom at the time she heard the shot ring out. Id. The defendant's wife later found a hole in the bathroom window and the mirror in the bathroom broken. Id. at 921. The defendant was convicted of unlawful use of a weapon and first degree assault. Id. at 920. The court, in Sloan, stated, "[t]he state concedes that based on the facts of the instant case, Sloan's right to be free from double jeopardy was violated." Id. at 923.

However, the facts of Sloan are distinguishable from the present case. In Sloan, the defendant fired a single shot which constituted the factual basis for both charges of unlawful use of a weapon and first degree assault. In the instant case, Mr. Williams, as part of a continuous course of conduct, fired two separate shots at Kenneth Jones and a shot at the automobile in which Mr. Jones and others were present. Therefore, the same act is not the basis of the convictions for unlawful use of a weapon and first degree assault as in Sloan. Mr. Williams committed "several crimes in the same series of events and each crime requires proof of a fact distinct from the others...." Whitehead, 675 S.W.2d at 943. The convictions for unlawful use of a weapon and first degree assault do not violate the standard established in Blockburger. Point (1) is denied.

For point (2), Mr. Williams contends that the trial court committed plain error in failing to, sua sponte, submit a jury instruction on the use of force in self-defense. If substantial evidence is presented to put self-defense in issue, the trial court must submit an instruction to the jury on self-defense regardless of whether the defendant requests the instruction and irrespective of the source of the evidence. State v. Hajek, 716 S.W.2d 481, 483 (Mo.App.1986). Additionally, in determining whether a self-defense instruction should have been submitted to the jury, the evidence must be viewed in the light most favorable to the defendant's theory of self-defense. Id.

In Hajek, the court provided the test for determining whether a defendant is entitled to a self-defense instruction. The court in Hajek held:

In order to claim self-defense, the defendant (a) must not have provoked or been the aggressor in the assault; (b) must have reasonable grounds for the belief that he is faced with immediate danger of serious bodily injury; (c) must not use more force than that which appears reasonably necessary; and (d) must do everything in his power...