State v. Young

• Decision Date: 30 September 1980
• Docket Number: No. 40825,40825
• Parties: STATE of Missouri, Respondent, v. Loretta Denise YOUNG, Appellant.
• Court: Missouri Court of Appeals

Page 8

610 S.W.2d 8

STATE of Missouri, Respondent, v. Loretta Denise YOUNG, Appellant.

No. 40825.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 30, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 14, 1980.

Application to Transfer Denied Feb. 9, 1981.

Robert C. Babione, Public Defender, Leonard W. Buckley, Jr., St. Louis, for appellant.

George A. Peach, Circuit Atty., St. Louis, John Ashcroft, Atty. Gen., Jefferson City, for respondent.

PUDLOWSKI, Judge.

Appeal from a conviction, after a jury trial, of capital murder, § 559.005 RSMo 1975. Punishment was assessed at life imprisonment.

The evidence shows that defendant Loretta Young, a woman of 23 years, was visiting Arthur Brock, her boyfriend and the father of one of her two illegitimate children. Because Mr. Brock had contracted an infection of the heart and endocarditis he was hospitalized at Firmin Desloge Hospital. Mr. Brock and defendant had an affectionate hour and thirty minute visitation. At that point Rosina Inserra entered the hospital room. From the record it was apparent that Mr. Brock and Ms. Inserra had had an amoristic relationship. The two women recognized each other immediately because both worked in the oldest known profession in and around the hotels of downtown St. Louis. Seemingly the two women had been friendly in the past because the defendant testified that Ms. Inserra had driven her on more than one occasion from one hotel to the next in pursuit of their profession. Words were exchanged between the women and they began to fight physically. Eventually the women wrestled out of the room and into the corridor of the hospital. A doctor, making rounds on the floor with a group of medical students, was drawn to the women by the noise they made. The doctor succeeded in separating the women and ordered the defendant to leave the hospital. The defendant complied.

Upon leaving the hospital defendant returned to her home at 1526 Chouteau. The defendant resided there with her mother, brother and two daughters. Defendant testified she was crying and extremely upset when she entered the house. In an attempt to calm herself defendant undressed, took a bath and dressed again in a housecoat. Even after so doing defendant remained greatly upset. Willy Jean Carter, the girlfriend of defendant's brother, noticed that defendant was distraught. The record indicates that defendant and Willy Jean were fairly good friends and that Willy Jean often spent extended periods, several days or even weeks at a time, in defendant's household. In questioning the defendant as to the cause of her unhappiness, Willy Jean was told of Rosina Inserra, the fight and that defendant had been ordered to leave the hospital. Defendant explained she was greatly angered because she believed Rosina Inserra had "won" the fight. Defendant felt she had lost because she had been ordered to leave the hospital while Rosina was allowed to stay. After hearing defendant's story, Willy Jean Carter was ready to assist the defendant in retaliating against Rosina. According to defendant's trial testimony Willy Jean was also interested in taking whatever money Rosina possessed. Eventually the two women agreed they would return to the hospital and kill Rosina Inserra. After so deciding defendant dressed in street attire, removed a .22 caliber pistol from its hiding place in her dresser and placed the gun in the waistband of her pants.

Because neither defendant nor Willy Jean had a car the two women convinced a friend of Willy Jean's to drive them to Firmin Desloge Hospital. The women located Rosina's car, which was parked adjacent to the hospital, and waited for her to return. After an hour and thirty minutes elapsed the victim left Arthur Brock. Returning to her car, Rosina was confronted by defendant and Willy Jean Carter. By this time defendant had given Willy Jean the .22 caliber handgun.

The victim was initially anxious when she saw the two women. The defendant attempted to quell Rosina's anxiety. Even though she was actually very upset, defendant apologized in an attempt to gain Rosina's trust. The defendant also told the victim that the two women need not be enemies because Arthur Brock was to blame for the fight. Rosina believed the defendant was sincere. Upon seeing that she had gained Rosina's confidence the defendant introduced her to Willy Jean Carter. After the two women said hello and exchanged pleasantries defendant asked if she would give Willy Jean and herself a ride home. Rosina agreed, believing that she was now among friends. With that the three women climbed into the victim's car.

Before taking defendant and Carter home Rosina stopped at a nearby service station to buy cigarettes. She parked her car directly in front of a window in the service station building. Defendant and Carter remained in the car. Rosina entered the station and asked the attendant, Mr. Louis Sladich, for change of a dollar. Mr. Sladich remembered this transaction because she was attractive and often bought cigarettes at his station. Mr. Sladich, who had an unobstructed view of Rosina's car through a window, testified that the victim was accompanied by two other persons, one being Carter. Having purchased cigarettes Rosina returned to her car and drove off in the direction of Carter's house. As she approached Carter's residence Carter told her to "Just keep on going." At Carter's command Rosina stopped the car in a nearby alley. The defendant testified that at that point Carter shot the victim twice and both Carter and defendant alighted from the car. Defendant ran in the direction of her home. Carter shot Rosina two more times, picked up the victim's purse, then followed defendant.

Defendant's first contention is that "(t)he trial court erred by not giving M.A.I.-CR 6.02 murder: First Degree ...." We cannot agree for a number of reasons. First, because the defendant participated in the murder of Rosina Inserra on April 27, 1977, the applicable instruction for murder in the first degree was MAI-CR 6.19 not MAI-CR 6.02. Second, the issue has not been preserved for appeal because there was neither an objection at trial nor in the motion for new trial. Rule 28.03, State v. Sykes, 559 S.W.2d 643, 646 (Mo.App.1977). Third, notwithstanding defendant's allegation to the contrary, no plain error was committed.

Generally, "instructional error is not 'plain error' unless the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice." State v. Harley, 543 S.W.2d 288, 292 (Mo.App.1976). Because defendant was charged with capital murder the trial court was required to instruct on conventional second degree murder and conventional manslaughter. MAI-CR 6.02, Notes on Use 4.c.2. These instructions were given. However, an instruction on "(m)urder in the first degree may not be submitted unless justified by the evidence." MAI-CR 6.15, Notes on Use 5. ¹ In order to support a first degree murder instruction the evidence must show defendant participated in "(1) the unlawful killing (2) of a human being (3) committed in the perpetration of or attempt to perpetrate" (4) first degree robbery. State v. Handley, 585 S.W.2d 458, 462 (Mo.1979). In order for first degree robbery to lie, in this case, Rosina's purse must have been unlawfully taken by the use of violence against her person with the intent to steal. It is unnecessary to regurgitate the facts, suffice it to say the evidence clearly supported these elements of first degree robbery. However, all the evidence indicated that Willy Jean actually took control of Rosina's purse. Therefore, defendant could be held responsible if she either actively participated or knowingly and intentionally aided or encouraged the commission of the robbery. The evidence showed defendant Willy Jean discussed the fact that Rosina had a purse and possibly possessed money. Further, defendant supplied Willy Jean with a gun and induced Rosina into a position where the latter could easily be shot and her purse taken. The inference arises that defendant acted knowingly and intentionally. Thus, the question whether defendant was guilty of participating in the robbery was a question for the jury, State v. Gilliam, 351 S.W.2d 723, 726 (Mo.1961), and the evidence would have supported a first degree murder instruction.

However, the trial court's failure to give the first degree murder instruction did not result in manifest injustice. An examination of the record reveals that at the instruction conference defense counsel argued that the evidence of defendant's participation in the robbery of Rosina was so slight that the first degree murder instruction could not be supported. The prosecutor agreed. The trial judge commented that he would give the first degree murder instruction and further conversation followed. Defense counsel continued to insist that the instruction not be given. The trial judge then asked defense counsel, "You are in effect waiving your right to the giving of murder first?" To which the defense counsel replied, "That is correct, Your Honor." Based on this conversation the trial court instructed only on capital murder, second degree murder and manslaughter. Defendant was found guilty of capital murder. The defendant now argues, for the first time on appeal that the trial court had an absolute duty to submit the first degree murder instruction despite defense counsel's objection to its submission. We hold that when the court failed to instruct on murder one it was merely doing what the defendant insisted that it should do. The action of the court thus clearly fell within the law of self-invited error. ² State v. Philpott, 242 Mo. 504, 146 S.W. 1160, 1162 (Mo.1912).

Defendant's second contention is that the trial court erred by submitting MAI-CR 2.12. This instruction allowed the jury to find defendant guilty if she "acted alone or with Willy Jean Carter." Defendant...