State v. Wright, s. 18197

• Decision Date: 08 October 1996
• Docket Number: 20592,Nos. 18197,s. 18197
• Citation: 934 S.W.2d 575
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald M. WRIGHT, Defendant-Appellant, and Donald M. WRIGHT, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 575

934 S.W.2d 575

STATE of Missouri, Plaintiff-Respondent, v. Donald M. WRIGHT, Defendant-Appellant, and Donald M. WRIGHT, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 18197, 20592.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 8, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 31, 1996.

M. Elise Branyan, Asst. Public Defender, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Blegen, Asst. Atty. Gen., Jefferson City, for respondent.

PARRISH, Judge.

Donald M. Wright (defendant) was charged and convicted, following a jury trial, of murder in the first degree, § 565.020, ¹ and armed criminal action, § 571.015.1. He was sentenced to life imprisonment without eligibility for probation or parole for the murder offense and life imprisonment for the armed criminal action offense. Defendant thereafter filed a motion for post-conviction relief as permitted by Rule 29.15 that was denied after an evidentiary hearing.

Defendant appeals the judgment of conviction (No. 18197) and the order denying his Rule 29.15 motion (No. 20592). This court consolidated the appeals pursuant to Rule 29.15(l) as it existed on the date defendant's motion was filed. The judgment of conviction and the order denying the Rule 29.15 motion are affirmed.

Defendant's allegations of trial court error include a claim that the evidence was not sufficient to support the guilty verdicts in his criminal case. The evidence, for purposes of this court's review, is viewed in the light most favorable to the verdicts. State v. Weems, 840 S.W.2d 222, 228 (Mo. banc 1992). Evidence supporting the verdicts is regarded as true and contrary evidence is disregarded. Id. If reasonable persons could find defendant guilty on the basis of the evidence so considered, it is sufficient. Id.

On August 24, 1990, Larry Arnold met defendant at an apartment in Springfield, Missouri, where defendant was staying with friends. They made plans for the day. Arnold testified that they planned "[t]o do burglaries." When asked what he meant, Arnold explained, "Go and break into peoples' [sic] houses and steal their things."

Sometime before 2:00 p.m., Arnold took his girlfriend to work. He was driving her car. He and defendant went to Christian County to find houses to burglarize. They were looking for houses that were not near other dwellings; houses at locations where they would not be seen. They wanted to steal guns, VCRs, televisions and jewelry because those items were "easy to sell and easy to take."

Defendant and Arnold entered three houses the afternoon of August 24. The first two burglaries were at the Steinert and Kreider residences. They stole a .22 rifle, a VCR and jewelry at the first; a VCR and jewelry at the second.

The third house belonged to Linda and Russell Haddow. They arrived about 4:00 p.m. Arnold drove into the driveway. There was a slope at the back of the house that led to the back door. Arnold parked the car on the slope, "backed it up on the slope" so it was headed away from the house.

Defendant got out of the car. He looked through the windows into the back of the house. He checked a sliding glass door. It was unlocked. He went inside.

Arnold got out of the car, put on gloves and entered the house. He and defendant went into the master bedroom at the back of the house. Arnold found guns in the closet of the bedroom and handed them to defendant. Defendant put the guns on the bed. They found a jewelry box above the bed with $2 bills in it. They threw it on the bed.

Arnold went to the living room area. He found a microwave and a television. He put the microwave on a table and went to another part of the house. He returned and saw a VCR behind the television. As Arnold picked up the VCR, defendant shouted that someone had come home. There was a truck outside that had not been there when they arrived.

Defendant picked up a gun from the bed and tried to load the gun with shells from a box that was on the bed. The shells would not fit in the gun. Defendant picked up another gun, opened the box of shells and tried to put them in the weapon.

Arnold started to go to a spare bedroom to hide but changed his mind. He decided to run out the door. As Arnold started toward the door, defendant came out of the master bedroom. Defendant was loading a gun. He tried to hand Arnold the gun and said, "You kill him." Arnold said, "No."

Arnold dropped the VCR and remote control he was carrying and started to the kitchen to get to the door to leave the house. He was about to enter the kitchen when he saw Russell Haddow walking into the house through the sliding glass door carrying a lunch box and mail.

Defendant came around a corner with the gun. Arnold was at the back door. He turned and saw defendant pointing the gun at Haddow. As Arnold headed toward the car he heard a gunshot. He started the car's engine and was attempting to leave when defendant got to the car and climbed inside.

Arnold was asked the following questions and gave the following answers:

Q. [by the special prosecuting attorney] Did you ask the defendant whether or not he had shot Mr. Haddow?

A. Yes, I did.

Q. What did you ask him?

A. I asked him if he was dead.

Q. What did the defendant say?

A. He hoped so.

...

Q. Tell us whether or not you asked why he had shot him?

A. Yeah. I asked why he had to shoot him instead of doing something else, and so there wouldn't be no witnesses he stated back.

Linda Haddow returned to her home that afternoon around 5:15 or 5:20. As she drove up the driveway to the house she noticed the sliding glass door was open. When she entered the house through the open door, she saw her microwave sitting on the table. She saw Russell on the floor leaning against the kitchen sink. Mrs. Haddow went to her husband. She could not find a pulse. He was cold to her touch. She called a neighbor for assistance. The neighbor called an ambulance and came to the Haddow house. A short time later a deputy sheriff arrived.

Mrs. Haddow had not disturbed anything in the house after she called for assistance. There was a gun on the floor and a VCR on the floor in the hallway. There were guns on the bed in the master bedroom--a .300 Savage lever action rifle, a .22 rifle and a .410 shotgun--and jewelry boxes and drawers thrown on the bed.

The gun that was on the floor was a bolt action .270 caliber rifle with a scope. Investigators found a hole in an antique ladle hanging by a kitchen window, a hole in a kitchen cabinet and two shatter marks or shatter-type holes in the window. They found a bullet fragment on top of the kitchen stove.

Two boxes of Winchester .270 ammunition were found in the bedroom. One box was full. The other had five rounds missing. One round was next to the box. One was jammed in a .300 Savage lever action rifle that was on the bed. Two rounds were on the floor inside a room used as a study. The remaining round was the one that had been fired.

Point I

Defendant, for his first point on appeal, contends the trial court erred in denying his motion for acquittal filed at the close of the state's evidence and at the close of all evidence. He contends the evidence was not sufficient to support verdicts of murder in the first degree and armed criminal action because it failed to prove he knowingly killed Russell Haddow with premeditation and failed to prove he committed the offense through the use, assistance or aid of a deadly weapon.

Although defendant's allegation of trial court error is directed to the denial of two motions for judgment of acquittal, one made at the close of the state's evidence and one made at the close of all evidence, the only question applicable on appeal is whether it was error to deny the motion for acquittal at the close of all evidence. Defendant presented evidence in his own behalf. By doing so he waived any claim of error he could have directed to the denial of his motion for acquittal at the close of the state's evidence. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992).

Defendant's challenge to the sufficiency of the evidence focuses on the testimony of Larry Arnold. He contends Arnold's testimony was not credible, thereby suggesting that it should be disregarded and, upon disregarding Arnold's testimony, defendant asserts the evidence was not sufficient for reasonable persons to find him guilty. He alleges that Larry Arnold testified in another case that he had "lied under oath" in defendant's trial. ²

"Questions of credibility of witnesses and the effects of conflicts or inconsistencies in the testimony of any witness are questions for the jury. State v. Carter, 670 S.W.2d 104, 108 (Mo.App.1984). It is within the jury's province to believe all, some, or none of any witness's testimony in arriving at its verdict." State v. Nelson, 818 S.W.2d 285, 288 (Mo.App.1991).

Larry Arnold testified in considerable detail concerning what occurred in the Haddow residence before Mr. Haddow arrived home and what transpired with respect to the shooting after Mr. Haddow came into the residence. The physical evidence accumulated by law enforcement officers at the scene of the shooting was consistent with Arnold's testimony. The evidence was sufficient for reasonable persons to have found defendant guilty of murder in the first degree and armed criminal action. Point I is denied.

Point II

Defendant's second point is directed to the trial court's denial of a motion to dismiss the criminal charge against defendant or, alternatively, to not allow Larry Arnold to testify against defendant at trial. Point II alleges the trial court erred in denying the motion because both defendant and Arnold were represented by the same attorney for a period of time following their arrest.

Defendant's motion was filed February 13, 1992 (along with 13 other motions), four weeks prior to trial. Although not entitled motion in limine or motion to suppress evidence, it...