State v. Gaston

897 S.W.2d 136, 1995 Mo. App. LEXIS 648, 1995 WL 129574
CourtMissouri Court of Appeals
DecidedMarch 28, 1995
DocketNo. WD 48517
StatusPublished
Cited by10 cases

This text of 897 S.W.2d 136 (State v. Gaston) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gaston, 897 S.W.2d 136, 1995 Mo. App. LEXIS 648, 1995 WL 129574 (Mo. Ct. App. 1995).

Opinion

LOWENSTEIN, Judge.

Robert Gaston (Appellant) appeals a judgment following a jury verdict, finding him guilty of voluntary manslaughter, and armed criminal action. He received two consecutive fifteen year sentences.

In December of 1992, Appellant’s brother threw a party at a club in Jackson County. Around midnight, Appellant’s brother, who was a member of the “Bloods” gang, started arguing with a girl who was a member of the “Crips” gang. During that argument, Appellant’s brother and the girl exchanged heated gang hand signs. The girl then told a few male Crips members about the argument and they surrounded and confronted Appellant’s brother.

The victim, Howard Allen, was one of the Crips boys who approached Appellant’s brother. Later, when Allen tried to leave the club, between five and seven people, including Appellant, surrounded him and began to beat and kick him. Appellant took out a .38 handgun and proceeded to pistol whip Allen.

Allen was not able to defend himself or fight back after the attack, and lay on the floor. After a few moments, Appellant declared, “Fuck this shit,” and shot Allen in the head. The bullet entered the left side of Allen’s head, fractured his skull, passed through his brain, and exited the right side of his head. The fractured skull, caused by the bullet wound, was listed as the cause of death.

After the shooting, Appellant fled the scene. There was a discrepancy at trial about the following information: 1) there was testimony that Appellant later bragged to some friends on the school bus about “shooting some nigger on 77th street”; but 2) Appellant denied this at trial, saying he shot Allen accidentally.

Appellant presents three points on appeal, including: 1) the trial court erred in finding him guilty of voluntary manslaughter because there was insufficient evidence that he caused Allen’s death as a result of sudden passion arising from adequate provocation; 2) the trial court plainly erred in allowing reference to the gangs (Bloods and Crips) in State’s closing argument; and 3) the trial court erred in admitting photographs of the victim’s head wound, because such were overly prejudicial to Appellant.

I.

Appellant first claims the trial court erred in allowing a verdict of voluntary manslaughter when there was insufficient evidence to support a charge that he killed in the heat of passion from adequate provocation.

This court only determines whether the evidence is sufficient to support the verdict, not whether the verdict was against the weight of the evidence. State v. Williams, 623 S.W.2d 552, 553 (Mo.1981). This court must consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict and must disregard all inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993); State v. McMahan, 821 S.W.2d 110, 111 (Mo.App.1991).

Voluntary manslaughter is “knowingly causing the death of another person, or with the purpose of causing serious physical injury to another person, causing the death of another person, under the influence of sudden passion arising from adequate cause.” §§ 565.021.1(1), 565.023.1(1) RSMo 1986. Appellant argues that the evidence presented at trial: (1) fails to prove sudden passion; and (2) fails to prove he shot Allen with the purpose of causing death or serious bodily injury.

The problem with this argument is that Appellant is now claiming that the evidence adduced at trial showed he committed a higher offense than that for which he was convicted, voluntary manslaughter. If Appellant’s point is taken literally, he is saying he is more likely guilty of second degree murder rather than voluntary manslaughter, because of the absence of the “sudden passion & adequate cause” elements.

Appellant’s claim must fail, due to a “defendant’s protection” statute, which precludes the state from charging defendant with a greater crime if the evidence supports [138]*138the guilt, but the defendant is on trial for a lesser offense. § 545.030.1(17) RSMo 1986. More specifically, the statute provides that no criminal trial may be in any manner affected because the evidence shows the defendant to be guilty of a higher degree of the offense for which he was convicted. Id. In applying § 545.030.1(17) to this case, the fact that the evidence may show Appellant to be guilty of a higher degree of homicide than that for which he was convicted, will not affect the outcome of the trial on the lesser charge.

In State v. Nodine, 810 S.W.2d 114 (Mo.App.1991), the appellant complained that he had been convicted of voluntary manslaughter based upon evidence that failed to show that he acted as a result of sudden passion. The court held that the conviction was to be upheld even though the evidence tended to show his guilt of a higher crime. Id. at 116.

Also of importance to Appellant’s claim, is the fact that Appellant himself submitted to the court a voluntary manslaughter jury instruction. The State submitted only a first degree murder instruction, and the trial court instructed the jury on voluntary manslaughter. In Nodine, supra, the court held that the giving of the voluntary manslaughter instruction as submitted by defendant was “error committed at the insistence of defendant, and most certainly he considered it in his ‘favor’.” Id. 810 S.W.2d at 116. Nodine’s conviction was upheld.

Nodine and § 545.030.1(17) accordingly, rale the case at bar precludes Appellant from relief on this claim.

The point is denied.

II.

Appellant’s next point claims the trial court plainly erred when it failed to sua sponte declare a mistrial or failed to instruct the jury to disregard language used by the State in closing argument referring to the shooting as “gang related” and mentioning the names of the gangs.

Because Appellant made no objection to the above argument at trial, this court may review his point for plain error only. State v. Gustin, 826 S.W.2d 409, 414 (Mo.App.1992); Rule 30.20. Rule 30.20 mandates reversal on this point only if a manifest injustice has occurred as a result of the trial error. Demonstrable prejudice alone is insufficient for relief under this rule; State v. Schaal, 806 S.W.2d 659, 664 (Mo. banc 1991).

In reviewing closing arguments, note the trial court is vested with considerable discretion to control the content of closing argument. State v. Armbruster, 641 S.W.2d 763, 766 (Mo.1982). This court will not reverse unless Appellant establishes that the unwarranted argument had a decisive effect on the jury’s determination. State v. Long, 768 S.W.2d 664, 666 (Mo.App.1989); citing State v. Newlon, 627 S.W.2d 606, 616 (Mo. banc 1982).

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Bluebook (online)
897 S.W.2d 136, 1995 Mo. App. LEXIS 648, 1995 WL 129574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gaston-moctapp-1995.