Thompson v. State

• Decision Date: 25 March 2014
• Docket Number: WD75688
• Parties: TAQWA THOMPSON, Appellant, v. STATE OF MISSOURI, Respondent.
• Court: Missouri Court of Appeals

TAQWA THOMPSON, Appellant,
v.
STATE OF MISSOURI, Respondent.

WD75688

MISSOURI COURT OF APPEALS WESTERN DISTRICT

Opinion filed: March 25, 2014

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE DAVID M. BYRN, JUDGE
Before Division Three: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Thomas H. Newton, Judge

Taqwa Thompson appeals the judgment of the motion court denying his Rule 29.15 motion for postconviction relief following an evidentiary hearing. Thompson sought to vacate his convictions for second-degree murder and armed criminal action and concurrent sentences of twenty years and five years imprisonment, respectively. He claims that the motion court clearly erred in denying his motion because he received ineffective assistance of counsel when counsel failed to request an instruction for a lesser included offense, failed to strike a venireperson, and failed to adequately cross-examine or impeach the chief medical examiner. The judgment is affirmed.

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Factual and Procedural Background

Thompson was convicted of murder in the second degree and armed criminal action and sentenced to twenty years and five years imprisonment, respectively. Viewed in the light most favorable to the verdict, the evidence at trial showed the following. On April 2, 2008, Thompson, Markest Scott, and a person known as T.J. were walking down North Mersington in Kansas City. Thompson broke away from the other two men and crossed the street where the victim, Ricardo Jimenez, was walking toward an apartment building. A resident of the building observed Thompson, wearing a Kansas City jacket and a red cap, enter the building behind the victim. Another resident also noticed Thompson entering the building, wearing the Kansas City jacket and red cap. Thompson walked up as the victim was entering the building and shot him. The victim said, "He shot me," and fell in the doorway. A building resident called 911, but the victim died in a matter of minutes and was pronounced dead at the scene.

Thompson rejoined Scott, and they ran off together. T.J. ran in a different direction. Thompson tried to give the gun to Scott, but he wouldn't take it.

One of the building residents described Thompson and Scott to Aaron Stanley, who was in the building. Stanley got in his vehicle and drove in the direction that the two men had gone. Stanley saw two men matching the description and called the police.

The police found Thompson and Scott standing on a bridge at Lexington and Lebelle. When he saw the police, Thompson put the gun in his red baseball cap and threw it off the bridge. Thompson and Scott were arrested, and Scott showed the police where the red cap was. The police found the gun inside the cap; the Kansas City jacket was on the sidewalk. DNA profiles from the trigger, the cap, and the jacket matched Thompson.

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Thompson told police that he did not know the victim and that he had not been north of St. John Avenue that day. The scene of the shooting, 207 North Mersington, is about two blocks north of St. John Avenue. Thompson did not mention an accidental shooting of the victim and did not indicate any knowledge of the shooting or any familiarity with the victim.

During voir dire, the prosecutor asked the panel if anyone was familiar with the area of 207 Mersington in Kansas City where the shooting occurred. Venireperson No. 3 responded that she was:

VENIREPERSON NO. 3: I kind of know the area. I don't live there, but I kind of know where stuff is. But I don't live near there.
PROSECUTOR: Okay. Anything about the fact that you're aware of this circumstance, would that affect your ability to be fair and impartial in this case?
VENIREPERSON NO. 3: Yes.¹
PROSECUTOR: Okay, thank you. Anyone else? I see no other hands.

Neither party followed up with further questioning of Venireperson No. 3, and defense counsel did not move to strike her.

At trial, the chief medical examiner, Dr. Mary Dudley, testified about the cause and manner of the victim's death. In forming her conclusions about these matters, Dr. Dudley reviewed the autopsy report prepared by Dr. Laura Knight, the deputy medical examiner who performed the autopsy. Dr. Dudley explained that the bullet entered the back of the victim's right shoulder, passed through the posterior right shoulder, the posterior or back fourth rib, and the right lung, and grazed the right side of the heart. The trajectory of the bullet, going through the right shoulder, was downward and forward. The bullet was recovered on the front of the chest on the right side.

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During cross-examination by defense counsel, Dr. Dudley admitted that she did not conduct the autopsy, was not present for the autopsy, and never viewed the body. She also testified that she could not tell how far the gun was from the victim's body when he was shot but that she "would call it a distant range wound" because there was no soot in or around the wound and no burnt or unburnt gunpowder stippling around the wound. Dr. Dudley admitted, "even if there was clothing there, that may make a difference on what's deposited, you know, on the jacket." Dr. Dudley also admitted that Dr. Knight concluded that the gunshot wound was "penetrating, indeterminate range." Finally, Dr. Dudley again admitted that she never saw the body, was not present for the autopsy, and never personally viewed the gunshot wound.

In response to counsel's cross-examination, the State again elicited on re-direct that Dr. Dudley concluded that the wound was a "distant range wound" based on "the wound pattern, that there was no soot or stippling." She concluded that the weapon was held "at least an arm's length away or over two feet from being in contact with the body." Dr. Dudley testified that when she did her independent analysis, she had the autopsy report, photographs, and clothing recovered from the victim.

On re-cross-examination, defense counsel once again elicited that Dr. Knight performed the autopsy and concluded that the wound was an "indeterminate range gunshot wound."

Thompson offered testimony at trial to support his claim that he accidentally shot the victim while acting in self-defense. He explained that the day before, a friend gave him a gun that the friend had found. The friend said that he did not think the gun was worth anything because it did not have a clip. Thompson asked if he could have the gun and told his friend that he could probably sell it to somebody and make some money. Thompson testified that he was looking at the gun a little later and that the victim walked by, said, "Hi," and asked to hold the

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gun. Thompson refused but told him he could buy it for twenty or thirty dollars because it did not have a clip. The victim agreed to buy the gun, and they agreed to meet the next day. Thompson said that while he had the gun, he never fired it or test fired it.

Thompson testified that the next day, he happened so see the victim walking toward the apartment building. He walked over and asked if he still wanted to buy the gun. The victim said that he did and told Thompson "to meet him inside an apartment building so nobody sees us making the transaction." Thompson followed the victim into the building.

Thompson said that, once inside, he "pulled out the gun ready to make the transaction." The victim "tried to reach for the gun." Thompson "tried to turn around and leave," but the victim grabbed the back of his jacket. Thompson tried to pull away, said "let me go," but the victim would not let go. Thompson testified that he then "tried to pull away with the gun," and that "when [he] was trying to pull away at the same time, [his] finger slipped and hit the trigger and the gun went off." He explained that his coat was loose, "so [he] was halfway almost facing him." He said, "So when I reached around, he had moved a little bit so I couldn't hit him and my arm reached around and I tried to push off. That's when my finger hit the trigger and the gun discharged." Thompson further explained that the victim was crouched down and that the gun never touched the victim. He said that when the victim told him that he had shot him, "I was "shocked, because I didn't believe there was no bullet in the gun." He said, "From my knowledge, that's what was told to me, so I was shocked." He said that his friend "got the gun with no clip," so he "didn't believe there was a bullet in there with no clip."

After shooting the victim, Thompson panicked and took off running. He admitted that he put the gun in his hat and dropped it off a bridge. He also admitted that he lied to the police,

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explaining that he "was scared and [he] didn't know what else to do." Thompson testified that he did not intend to shoot the victim and that he did not intend to harm him.

On cross-examination, Thompson testified that when the victim would not let go of his jacket, he "tried to swing around and hit him with the gun." He said that he missed and "kind of jerked back," and he guessed his "finger hit the trigger and the gun went off." He said that he was trying to hit the victim "[t]o loosen up his grip a little bit to where [he] can pull away and leave."

After the close of the evidence, defense counsel argued for a self-defense instruction. Counsel also argued that the self-defense...