State v. Thompson

390 S.W.3d 171, 2012 WL 1677339, 2012 Mo. App. LEXIS 663
CourtMissouri Court of Appeals
DecidedMay 15, 2012
DocketNo. ED 96612
StatusPublished
Cited by10 cases

This text of 390 S.W.3d 171 (State v. Thompson) 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. Thompson, 390 S.W.3d 171, 2012 WL 1677339, 2012 Mo. App. LEXIS 663 (Mo. Ct. App. 2012).

Opinion

SHERRI B. SULLIVAN, J.

Introduction

Keon A. Thompson (Appellant) appeals from the trial court’s judgment entered upon a jury verdict finding him guilty of first-degree burglary, Section 569.1601; first-degree assault, Section 565.050; first-degree robbery, Section 569.020; and three counts of armed criminal action, Section 571.015. We affirm.

[173]*173 Factual and Procedural Background

Viewed in the light most favorable to the verdict, Victim testified to the following. At about 6:00 p.m. on September 25, 2008, Victim was at his apartment with his two toddler children when Raichelle Morgan (Morgan) and Appellant paid him a visit. Morgan entered Victim’s apartment armed with a gun. Appellant followed, carrying a backpack. They shoved Victim and asked him where the “stuff’ was. Victim told them he did not know what they were talking about. Morgan sent Appellant to search another room, taking Victim’s children with him.

Victim grabbed Morgan’s gun, pointed it at her and squeezed the trigger, but it failed to fire. Morgan called to Appellant for help. Appellant returned, and he and Morgan wrestled the gun away from Victim. Morgan took a knife off a rack in the kitchen and stabbed Victim in the left side of his chest.

Appellant left the room and returned with Victim’s three-year-old son. Morgan held the knife to Victim’s son’s neck and again demanded “the things.” Victim begged Morgan to let his son go, and she eventually relented. Morgan then demanded that Victim take his shorts off. As Morgan sat down on the loveseat in the living room to search the shorts, Victim grabbed another kitchen knife and stabbed Morgan in the neck or head area. Morgan then shot Victim in the arm. Victim and Morgan struggled until Appellant came into the room, retrieved the gun, and shot Victim in the back. Victim attempted to get the gun from Appellant, but Morgan retrieved the gun and shot Victim again in the back. Morgan and Appellant then fled the apartment in Victim’s red Ford Focus with Victim’s PlayStation 8 and radio in Appellant’s backpack.

Patrol Officers Dean O’Hara (O’Hara) and Josiah Merritt (Merritt) were radioed about the incident. O’Hara went to Victim’s apartment, and Merritt spotted Appellant and Morgan driving Victim’s red Ford Focus east on Dunn Road. Appellant and Morgan were eventually stopped and captured after a 20-mile car chase to Illinois. During a search of the Focus, police recovered a revolver with two live .38 rounds and three empty casings and a backpack with a PlayStation, car stereo, and media drive inside.

Victim was taken to the hospital where he was treated for substantial life-threatening injuries, including stab wounds, lacerations, and multiple gunshot injuries.

On November 5, 2008, Appellant was charged by indictment with first-degree burglary, first-degree assault, first-degree robbery, and three counts of armed criminal action for the events that transpired in which he participated with Morgan on the evening of September 25, 2008. After trial, the jury found Appellant guilty on all counts. This appeal follows.

Points on Appeal

In his first point, Appellant claims that the trial court plainly erred in failing to intervene sua sponte and declare a mistrial or issue a curative instruction when the prosecutor argued in the State’s closing that the jury had to decide the issue of whether Appellant acted in defense of another, i.e. Morgan, by only using Victim’s testimony. Appellant claims this closing argument misstates the law because even though Appellant denied intentionally shooting Victim, the jury was entitled to consider the rest of the testimony and other evidence in the case in determining whether Appellant reasonably believed he needed to defend Morgan.

In his second point, Appellant asserts that the trial court plainly erred in not instructing the jury on Appellant’s “claim [174]*174of right” defense to first-degree robbery because this defense was the law of the case. Appellant maintains that the court’s failure to instruct the jury on Appellant’s “claim of right” defense constituted prejudicial error, which resulted in manifest injustice and a miscarriage of justice because the jury was prevented from its consideration.

Standard of Review

The standard of review for failing to declare a mistrial when warranted is abuse of discretion. State v. Barton, 240 S.W.3d 693, 703 (Mo.banc 2007). The trial court also has broad discretion in controlling closing argument and counsel is afforded wide latitude during summations. State v. Hamilton, 847 S.W.2d 198, 199 (Mo.App. E.D.1993). The standard of review for an alleged error in closing argument depends upon whether defense counsel objects. State v. Shum, 866 S.W.2d 447, 460 (Mo.banc 1993). Where defense counsel does not object, as is the case here, we may review only for plain error. Id.; Supreme Court Rule 30.20. Under Rule 30.20, plain error will seldom be found in unobjected-to closing argument, since a holding that would require the trial judge to interrupt counsel would present myriad problems. State v. Radley, 904 S.W.2d 520, 524 (Mo.App. W.D.1995).

Discussion

Point I

The State argued to the jury that because Appellant never admitted shooting Victim, whereas Victim testified that Appellant did shoot him, the jury was left to decide the “defense of another” instruction by using only Victim’s testimony. The State followed up by stating to the jury that Appellant had to believe that the use of force was necessary to defend Morgan from what he believed to be force from Victim. The State then said, “Now, we’re still using [Victim]’s testimony for this instruction.” Appellant maintains that at this point the jury was misadvised of the law by the State, resulting in a manifest injustice to him.

In support of his misstatement of the law allegation, Appellant cites State v. Avery, 120 S.W.3d 196, 201 (Mo.banc 2003), for the proposition that, even if a defendant testifies that the gunshot was accidental, justification is still a viable defense if there is other evidence in the record to support the instruction. In Avery, the Supreme Court of Missouri determined that a self-defense justification instruction was warranted despite the defendant’s trial testimony that the shooting was accidental because there was evidence introduced by the State concerning prior inconsistent statements by the defendant. Id. at 201. The Court held that such a self-defense instruction is submissible even where the defendant testifies that a killing was an accident, if the inconsistent justification evidence is offered by the state or by defendant through the testimony of a third party. Id.

We note, as did the Avery court, that this is an exception to the general rule that a defendant is not entitled to an instruction on self-defense if the defendant claims accident. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
390 S.W.3d 171, 2012 WL 1677339, 2012 Mo. App. LEXIS 663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thompson-moctapp-2012.