State v. Kelly

885 S.W.2d 730, 1994 Mo. App. LEXIS 1368, 1994 WL 449408
CourtMissouri Court of Appeals
DecidedAugust 23, 1994
DocketNos. WD 46975, WD 48330
StatusPublished
Cited by3 cases

This text of 885 S.W.2d 730 (State v. Kelly) 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. Kelly, 885 S.W.2d 730, 1994 Mo. App. LEXIS 1368, 1994 WL 449408 (Mo. Ct. App. 1994).

Opinion

ULRICH, Judge.

Jason Kelly appeals his convictions of one count of murder in the second degree, a class A felony, § 565.021.1, RSMo 1986; and one count of armed criminal action, an ungraded felony, § 571.015, RSMo 1986, following jury trial. Mr. Kelly also appeals the order denying his Rule 29.15 postconviction motion without an evidentiary hearing. The appeals are consolidated.

Mr. Kelly raises five points on appeal. He claims that (1) the tidal court erred in failing to declare a mistrial when the state permitted the venire to view a shotgun not involved in the alleged crimes during voir dire and in admitting the shotgun into evidence; (2) in admitting into evidence an expended shotgun shell found at a location other than the site of the crime; (3) in permitting the state to remove by peremptory strikes three venire persons without compelling the state to offer age-neutral explanations for the use of the peremptory strikes; (4) in defining reasonable doubt by using MAI-CR 3d instructions 300.02 and 302.04; and (5) in denying Mr. Kelly’s Rule 29.15 postconviction motion without an evidentiary hearing, Mr. Kelly claiming that his trial counsel failed to exercise the customary skill and diligence required of a reasonably competent attorney under the same or similar circumstances by failing to present the trial testimony of a witness who would have testified that Mr. Kelly was not inside the house at the crime scene when the crimes occurred.

The judgments of conviction are affirmed. The motion court’s order denying Mr. Kelly’s postconviction motion without a hearing is affirmed.

Tammy Allen, Cheryl Alen, Tammy’s mother, and Vicky Allen, Tammy’s sister, returning from Truman Medical Center at approximately 3:00 a.m. to 3:30 a.m. on July 31, 1991, observed Mr. Kelly run from the house located at 6219 Peery, the house next door to the one in which the Alens lived. They observed him carrying a shotgun. The Alens knew Mr. Kelly prior to July 31. With Mr. Kelly was another person whom they knew to be Torrid Smith. Mr. Smith was observed carrying a pistol in a rear pocket. Approximately fifteen minutes after they observed Mr. Kelly and Mr. Torrid Smith, the Alens heard a gunshot.

Kathy Conklin was present at 6219 Peery. She had been at a party in the house with friends, including Wayne Fuller, the victim. During the early morning hours of July 31, 1991, Ms. Conklin awakened from sleep and began to enter the kitchen. A door was [732]*732closed separating the kitchen from the rest of the house. Ms. Conklin heard a loud sound like an “M-80.” She attempted to open the kitchen door to enter the kitchen and heard an unfamiliar voice warn her to “get back.” Ms. Conklin was familiar with Torrid Smith’s voice and the statement warning her was not made by him.

Ms. Conklin entered the kitchen soon thereafter and saw Wayne Fuller’s body lying on the floor. She telephoned 911 for assistance. The sliding glass door in the kitchen was open.

Raymond Perry resides next door to 6219 Peery. While asleep, he was awakened when he heard a gunshot. He looked out a window and saw two young white males running from the house located at 6219 Peery. The time was approximately 3:55 a.m.

Police officers arriving at the crime scene observed Wayne Fuller’s body lying face down on the kitchen floor. He had been shot to death with a shotgun. Fragments of shotgun pellets were recovered from wooden cabinets in the kitchen and from Mr. Fuller’s body. One whole lead pellet, lead pellet fragments, and a ball bearing were later recovered from Mr. Fuller’s body by the Jackson County Medical Examiner. The whole lead pellet recovered was a number eight lead pellet. Neither shotgun nor shotgun shell was recovered from the crime scene.

Police officers arriving at the defendant’s home at 116 North Drury received permission from the defendant’s father to conduct a search. Police officers found a t-shirt which matched the striped t-shirt described by the Allens which they had observed on Mr. Kelly when they had seen him running from 6219 Peery. Police officers also recovered a spent shotgun shell on defendant’s father’s property. The shell was recovered from bushes near an alley on the fence line. The shell had the number “8” written on it. The shell had been fired from a twelve gauge shotgun.

I

As point one on appeal, Mr. Kelly claims the trial court erred in failing to declare a .mistrial because the state permitted the voir dire panel to observe a shotgun, later identified as being similar to the one the Allens saw the morning of the crime, and in admitting the shotgun into evidence. Mr. Kelly claims the court erred because no evidence was presented at trial to show that the shotgun was connected to the shooting of Wayne Fuller. The state claims the shotgun was entered into evidence to be used only for demonstrative purposes for the witnesses to state that the firearm they saw Mr. Kelly carrying shortly before the shooting was similar to the sample shotgun and to demonstrate to the jury the implausibility of Mr. Kelly’s claim that he mistook the shotgun used in the murder for a pool cue. The jury was clearly informed the shotgun presented was not the shotgun used in the murder but one similar to the shotgun seen and described by witnesses.

Generally, Missouri courts have held that weapons unconnected with either the accused or the offense are inadmissible unless they possess some probative value. State v. Douthit, 846 S.W.2d 761, 763 (Mo.App.1993). The court in Douthit allowed the use of a shotgun to demonstrate the function of a gun part found in a defendant’s car. In State v. Huff, 831 S.W.2d 752, 754 (Mo.App.1992), the court found no error in the trial court allowing a firearms expert to utilize three shotguns in demonstrating to the jury the difference in characteristics of the three types and of the different nature of the shot pattern of a sawed-off shotgun. Both in Douthit and in Huff, the jury was specifically informed that the shotguns were not connected to the crime or to the defendant and that the firearms were merely demonstrative. Douthit, 846 S.W.2d at 763; Huff, 831 S.W.2d at 754.

Several reported Missouri cases have criticized the appearance of firearms during trial which were not involved in the charged violation. The courts in some of these cases have stated that “the sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence.” State v. Fristoe, 620 S.W.2d 421, 427 (Mo.App.1981); State v. Mayfield, 506 S.W.2d 363, 365 (Mo.1974). In FHstoe the court was unclear whether the prosecutor was holding the dem[733]*733onstration firearm when he asked the victim, “On how many occasions did you have this gun pointed at you?” In Fristoe, the witness had not described the pistol used to commit the crime before the demonstration pistol was displayed by the state; nor was the jury in Fristoe admonished in any manner concerning the demonstrative firearm produced by the state. In State v. Grant, 810 S.W.2d 591

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Cite This Page — Counsel Stack

Bluebook (online)
885 S.W.2d 730, 1994 Mo. App. LEXIS 1368, 1994 WL 449408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-moctapp-1994.