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11/22/94 STATE MISSOURI v. JEFFREY R. FERGUSON

November 22, 1994

STATE OF MISSOURI, RESPONDENT,
v.
JEFFREY R. FERGUSON, APPELLANT



APPEALS FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY. The Honorable Melvyn W. Wiesman, Judge

Stephen N. Limbaugh, Jr., Judge, All concur.

The opinion of the court was delivered by: Limbaugh

en banc

A jury convicted Jeffrey Ferguson of first degree murder for his complicity in the death of Kelli Hall. The trial court, abiding the jury's recommendation, imposed the death sentence. Ferguson filed a motion for postconviction relief under Rule 29.15, which was heard and overruled. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. The conviction is reversed and remanded for a new trial.

Ferguson contends that the trial court committed reversible error in submitting a verdict director allowing the jury to find him guilty without finding that he deliberated as required under § 565.020, RSMo 1986, the first degree murder statute. He explains that by charging the element of deliberation in the alternative -- to either "defendant or [codefendant] Kenneth Ousley" -- the jury was not required to find that defendant, himself, deliberated. The verdict director, Instruction No. 9, was submitted to the jury as follows:

INSTRUCTION NO. 9

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 9, 1989 or February 10, 1989, in the County of St. Louis, State of Missouri, the defendant or Kenneth Ousley caused the death of Kelli Hall by strangling her, and

Second, that defendant or Kenneth Ousley knew or was aware that his conduct was practically certain to cause the death of Kelli Hall, and

Third, that defendant or Kenneth Ousley 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 offense of murder in the first degree, the defendant acted together with or aided Kenneth Ousley in committing that offense,

then you will find the defendant guilty 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 ...


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