State v. Howard

949 S.W.2d 177, 1997 Mo. App. LEXIS 919, 1997 WL 259762
CourtMissouri Court of Appeals
DecidedMay 20, 1997
DocketNo. 67837
StatusPublished
Cited by7 cases

This text of 949 S.W.2d 177 (State v. Howard) 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. Howard, 949 S.W.2d 177, 1997 Mo. App. LEXIS 919, 1997 WL 259762 (Mo. Ct. App. 1997).

Opinion

SIMON, Judge.

Shareko Howard (defendant) appeals his sentence of two concurrent life terms without parole following the jury’s verdict finding him guilty of first degree murder and armed criminal action. Defendant also appeals the denial of his Rule 29.15 motion, but did not raise any points on appeal regarding his Rule 29.15 motion, and as such, he has abandoned that appeal.

On appeal defendant contends that the trial court erred when it: (1) replaced juror, Ms. Finley, with venireperson, Ms. Becker, who was not included in the panel subject to peremptory strikes andwas not the first available alternate juror; (2) denied submission of instruction “A” and “B” on self-defense and (3) denied submission of instructions “D” (murder in the second) and “E” (voluntary manslaughter). We reverse and remand.

Defendant does not contest the sufficiency of the evidence. The record, in a light most favorable to the jury’s verdict, indicates that on approximately February 1,1993, Arleathia Davis (Davis) had ended her six-month relationship with Bryant Johnson (victim). On February 13, 1993, victim called Davis about retrieving a coat that he had left at her apartment. Victim told her that he would come by and pick it up.

[179]*179Since their separation, Davis had begun a relationship with defendant. Defendant had come over to Davis’ apartment the evening before for a party and had spent the night. He had brought a gun with him. He was still at Davis’ apartment when the party resumed the afternoon of February 13. At approximately 7:00 p.m. that evening, victim arrived at Davis’ apartment. Davis looked out the window, asked victim what he wanted but did not open the door. Victim asked her to let him in and to give him his coat. Davis did not open the door but went to look for his coat in one of the bedrooms.

While Davis was looking for the coat, defendant opened the door and said “What’s up, man.” Victim responded “What’s up” and then reached behind his back and tugged at his pants. Defendant pulled out a gun and started shooting victim. The first shot hit victim in the shoulder. After being hit in the shoulder, victim turned away from defendant and began to run towards the street and parking lot. Defendant continued to shoot at victim while following him out to the street. Victim collapsed, face down, in the street in front of the apartment building. In total, defendant shot victim once in the shoulder and four times in the back.

After defendant returned to Davis’ apartment, a neighbor ran outside to where victim had collapsed. Victim tried to say something but he was choking on his own blood and was unable to speak.

Meanwhile, inside her apartment, Davis had headed towards her front door to see what was going on. She saw defendant and his friends heading towards a back bedroom. She also heard someone “beating on the door.” She answered it and a neighbor told her that victim was lying in the street. Davis went to look and by the time she returned, defendant and his friends were gone.

The police responded to the scene. Officer Wilson found victim lying in the street with no signs of life. An autopsy revealed that victim had been shot five times. All the bullets remained in the body and were recovered. It was determined that any of the bullets which struck victim in the back would have caused his death.

A .25 caliber automatic pistol was seized from defendant’s car and was examined. A firearms analyst found that the gun had “definitely fired” the five bullets recovered during the autopsy.

The state presented the testimony of Officer Wilson, a second officer, a firearms examiner, Dr. Turgeon, the medical examiner, Davis and two neighbors. Defendant testified and offered certain other exhibits which are not part of the record.

On direct, defendant testified that he and Davis were “in a relationship” and he had slept with her. He stated that she had ten children and a total of fourteen persons, including Davis’ father, were living in her apartment which was located in a tough neighborhood. He stated he was not the father of any of the children and that he thought he might have problems with some of the fathers of her children.

Defendant, a D.J., stated he was invited to Davis’ house for a party for which he would provide the music. His cousin and a friend accompanied him. There was drinking at the party but defendant stated he did not have much to drink because it would interfere with his ability to “rap.” Defendant, his cousin and friend spent the night after the party.

The next day the party resumed. At some point defendant’s cousin told him that victim, Davis’ ex-boyfriend, was angry because he was not invited to the party the night before, that he was coming over later that day, would probably have his gun with him and was “suppose to be jumping on [Davis].”

Defendant testified that he heard a knock on the door over the music and his cousin answered it and called Davis over. Davis came to the front of the apartment and talked to victim through the window. She did not open the door. She left the window and went toward the back of the apartment in one of the bedrooms. Defendant could not hear the conversations.

He stated that while Davis was in the back, victim started to bang on the door. This time defendant answered it. He stated that he did not know victim and said, “What’s up.” Defendant stated victim was about two [180]*180or three feet taller than he. Responding, the person said “What’s up? N-r I’m fixing to show you what’s up.”

Defendant stated that victim reached behind his back with his right hand and advanced toward him. He stated that he took a step back and thought victim was reaching for a gun. Defendant further described the shooting:

Q. Did you have time to figure out [what victim meant]?
A. Well, all I knew is that — I mean, as far as I was concerned, he was making an advance towards me. I mean, I had no idea. I just said, “What’s up?” I answered the door.
Q. What happened next?
A. When he reached behind his back he advanced. By that time I reached in my back pocket.
Q. What did you do?
A. I shot him. I shot him, it just happened. I thought he was — I felt my life was in danger. I was scared.
Q. Did you squeeze the trigger?
A. Yes, sii*.
Q. How many times?
A. I can’t really say, but all I know is the gun, when I stopped, it was empty.

Immediately after the shooting, defendant stated that he shut the apartment door and went and told Davis’ father what had occurred. Defendant stated that Davis’ father told him to “get out of here.” Defendant described himself as being in “a panic state of mind.”

A witness, one of Davis’ children, testified that after defendant opened that door, she really didn’t know what victim was doing but she saw him “go behind his back.”

The jury found defendant guilty of first degree murder and armed criminal action and he was sentenced by the judge to two concurrent life terms.

We take defendant’s points out of order.

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Bluebook (online)
949 S.W.2d 177, 1997 Mo. App. LEXIS 919, 1997 WL 259762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howard-moctapp-1997.