State v. Smith

806 S.W.2d 119, 1991 Mo. App. LEXIS 424, 1991 WL 39817
CourtMissouri Court of Appeals
DecidedMarch 26, 1991
DocketNos. 56064, 58128
StatusPublished
Cited by8 cases

This text of 806 S.W.2d 119 (State v. Smith) 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. Smith, 806 S.W.2d 119, 1991 Mo. App. LEXIS 424, 1991 WL 39817 (Mo. Ct. App. 1991).

Opinion

CRANE, Judge.

A jury convicted Larry Smith of one count of first degree murder, § 565.020 RSMo 1986, and one count of armed criminal action, § 571.015 RSMo 1986. The trial court sentenced him to life imprisonment without parole on the murder count and to ten years imprisonment on the armed criminal action charge, the sentences to be served consecutively. Smith, acting pro se, timely filed a verified motion for post-conviction relief pursuant to Rule 29.15. His appointed counsel subsequently filed an unverified amended motion. The motion court, after a hearing, overruled and dismissed the amended motion on the merits. Smith now appeals both the judgment of the trial court and the order of the motion court.

For his direct appeal Smith first argues that the trial court committed prejudicial error in giving Instruction No. 6, the verdict director for first degree murder, by requiring the jury to find that Smith “or another” committed the first three elements. He further argues that the error in this instruction tainted the verdict director for armed criminal action, Instruction No. 8, because it was premised on a finding of murder as submitted by Instruction No. 6. We may only consider these allegations of error under the plain error doctrine because no objections were made to these instructions at trial and they were not included in Smith’s motion for new trial. Rule 30.20. The giving of jury instructions does not result in plain error unless the court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice. State v. Murphy, 592 S.W.2d 727, 733 (Mo. banc 1979); State v. Thompson, 781 S.W.2d 247, 248 (Mo.App.1989).

Instruction No. 6, based on MAI-CR3d 313.02 as modified by MAI-CR3d 304.04, reads as follows:

INSTRUCTION NO. 6
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on May 6, 1987, in the City of St. Louis, State of Missouri, the defendant or another person caused the death of Ardell Harris by shooting him, and
Second, that it was the defendant’s or another persons [sic] purpose to cause the death of Ardell Harris, and
Third, that defendant or another person did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,
then you are instructed that the offense of murder in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or furthering the commission of that murder in the first degree, the defendant acted together with or aided or encouraged another person in causing the death of Ardell Harris and he did so after deliberation which means cool reflection upon the matter for any length of time no matter how brief,
then you will find the defendant guilty under Count I of murder in the first degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
If you do find the defendant guilty under Count I of murder in the first degree, you will return a verdict finding him guilty of murder in the first degree.

Smith argues that the giving of this accomplice liability instruction was error because there was no evidence that “another person" shot the victim. We disagree.

Notes on Use 7(c) to MAI-CR3d 304.04 provides that, where the evidence is [121]*121not clear whether the defendant acted alone or had an accomplice, the verdict director should “ascribe the elements of the offense to the defendant or another person or persons.” Thus, if the evidence is unclear as to whether another person committed the acts, the disjunctive use is proper because it allows the jury to find that either person committed the act and to also consider evidence that is unclear. See State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

Instructions must be based on substantial evidence and reasonable inferences. State v. Beatty, 617 S.W.2d 87, 91 (Mo.App.1981). There was substantial evidence to raise a question whether Smith acted with another, Ricky Harris, in committing the murder. Specifically, the evidence relating to the accomplice discloses that, after Smith was threatened by the murder victim, Harris said to Smith, “You are not going to let him get away with that.” Smith answered, “We’ll take care of that another time.” Later, Smith and Harris were sitting in a car while preparing to commit a burglary. Each had a .38 caliber weapon. Smith saw the victim come out of a house. Smith and Harris got down between two parked cars and both shot the victim as he walked to a parking lot and again after he was down. Upon hearing the police coming, Smith ran to the car, tossed his pistol to Harris, and drove off. Harris ran to his house with both pistols. As he drove away from the scene Smith was stopped by police. When the arresting officer asked Smith whose car he was driving, Smith told him it belonged to someone called Ricky but that he did not know Ricky’s last name or address. At the homicide office, Smith said that the car belonged to Ricky Harris. While Smith was being held in the city jail, he told an inmate the details of how he and Ricky Harris killed the victim.

Smith contends that much of the testimony of Harris’s role in the murder was incredible because it came from an inmate informant and therefore the testimony should not support the giving of instruction. Smith argues that the informant had a motive to lie because the prosecutor agreed to write a letter outlining the informant's cooperation to be used at his parole hearing. An informant is a competent witness. Promises of leniency or of assistance go to the weight of an informant’s testimony, not to its admissibility. See State v. Harper, 713 S.W.2d 7, 10 (Mo.App.1986). The trial court’s instruction allowing the jury to find that defendant “or another person” engaged in the conduct was supported by the evidence.

Smith also contends that the verdict director was overly broad because it referred to “another person” and did not specifically name Ricky Harris as the accomplice. He argues that the failure to name Harris was prejudicial because it allowed the jury to speculate about matters not in evidence and to convict Smith on their suspicions rather than on the evidence. Notes on Use 7(c) does not indicate that an accomplice must be named in the situation where it is unclear whether defendant had an accomplice. All that is required is for the jury to find that defendant or another person committed the relevant acts. Furthermore, Notes on Use 7 ends with the following: “NOTE: Any variation in ascribing the elements of an offense to the defendant or to the other person or persons ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Carson
941 S.W.2d 518 (Supreme Court of Missouri, 1997)
State v. Sherman
927 S.W.2d 350 (Missouri Court of Appeals, 1996)
State v. Mogan
891 S.W.2d 867 (Missouri Court of Appeals, 1995)
State v. Dunn
857 S.W.2d 359 (Missouri Court of Appeals, 1993)
State v. Rizzuto
853 S.W.2d 318 (Missouri Court of Appeals, 1993)
State v. Roberts
838 S.W.2d 126 (Missouri Court of Appeals, 1992)
State v. Wade
826 S.W.2d 843 (Missouri Court of Appeals, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
806 S.W.2d 119, 1991 Mo. App. LEXIS 424, 1991 WL 39817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-moctapp-1991.