Court of Appeals of Missouri, Western District, Third Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable David M. Byrn, Judge.
Chris Koster, Attorney General, Andrew C. Hooper, Assistant Attorney General, Jefferson City, MO, for Respondent.
Rebecca L. Kurz, Special Public Defender, Mission, KS, for Appellant.
Before Division III: Thomas H. Newton, Presiding Judge, and Mark D. Pfeiffer and Cynthia L. Martin, Judges. Thomas H. Newton, Presiding Judge, and Cynthia L. Martin, Judge, concur.
Mark D. Pfeiffer, Judge.
Diamond D. Blair (" Blair" ) appeals the judgment of the Circuit Court of Jackson County, Missouri (" trial court" ), finding him guilty, after a jury trial, of one count of second-degree felony murder, one count of first-degree robbery, and two counts of armed criminal action. On appeal, Blair contends that the trial court erred in overruling Blair's motion for judgment of acquittal and further erred in the admission of certain evidence. We reverse Blair's convictions for first-degree robbery and the associated count of armed criminal action. We affirm Blair's convictions for second-degree felony murder and the associated count of armed criminal action.
Factual and Procedural Background
On the evening of June 23, 2009, Blair and his friend, Paul McDaniel (" McDaniel" ) planned to rob a gas station. The men wanted first to steal a car to use during the robbery, because Blair did not want to use his own car. At some point in the evening the two men were joined by a third friend, Elbert Holly (" Holly" ), and all three were dropped off by an acquaintance in the area of 36th Street and Baltimore in Kansas City. It had started raining, so the men sought shelter in the vestibule of a nearby apartment building. After the rain subsided, the men tried to find a screwdriver to use to steal a car. Holly called his girlfriend to see whether she had a screwdriver, and they later approached a man on a bicycle to see whether he knew where they could find one. They were ultimately unsuccessful, and they had planned to leave the area, when Montague Ashline (" Victim" ) pulled up to the same apartment building where the men had been seeking shelter from the rain.
While Victim was inside the apartment building, Blair, McDaniel, and Holly hid in nearby doorways. Victim exited the apartment building several minutes later, and the three men approached Victim, grabbed him by his shirt, pointed a gun at his chest, and demanded the contents of his pockets. Victim answered that he had nothing, and a struggle ensued. Blair shot Victim in his chest at close range, and the bullet went through Victim and into McDaniel's arm. At this point, the three attackers ran, and Victim died from his gunshot wound.
Blair and his companions ran to the nearby home of Holly's girlfriend. Holly called her on the way to let her know they were coming. McDaniel testified that he thought this was unusual, because McDaniel did not recall Holly having a cell phone earlier in the evening. Eventually the men went on their way, and McDaniel called a friend to take him to the hospital to have his gunshot wound treated.
When police responded to a shots-fired call shortly after midnight on June 24,
2009, they found Victim's body in the street adjacent to the apartment building where the confrontation had taken place. Victim died of a gunshot wound to the chest. Police collected cigarette butts, which were lying on the ground next to Victim's body, and also collected fingerprints from the vestibule of the apartment building. They contacted the manager of the apartment building, who gave them the video footage from the building's security camera. The police could not identify the attackers from the video footage, but they could tell that there were three men and that they had been in the vestibule of the apartment building. Police could also tell from the video footage that one of the three attackers appeared to have been shot himself.
The police contacted area hospitals to see who had sought treatment for a gunshot wound the night of the homicide. They learned that McDaniel had been treated for a gunshot wound approximately two hours after Victim had been killed. They interviewed McDaniel but did not obtain any useful information at that time. Later, police learned that the fingerprints they collected from the vestibule of the apartment building and the DNA from the cigarette butts they found in the street came from McDaniel.
On July 5, 2009, police stopped a truck matching the description of one seen at an unrelated homicide. Blair was a passenger in the truck from which a black .38 revolver was recovered.
In September of 2009, when police re-interviewed McDaniel about Victim's death, he told police about the shooting and identified Blair as the shooter. He told the police that they already had the murder weapon in their custody. Blair was eventually arrested for robbing and murdering Victim.
At Blair's trial, McDaniel testified to the facts as recounted above. In addition, the jury saw the security video footage. Evidence was also presented that the fingerprints and DNA collected from the scene were McDaniel's, and that the gun seized from the truck in which Blair was a passenger on July 5, 2009, was the murder weapon.
The State played audio recordings for the jury of telephone conversations Blair had while incarcerated. In one such conversation, which took place on July 17, 2009, Blair tells an unidentified man that he was stopped in another person's truck. Blair stated that he had " wiped the revolver off" and put it under the seat, stating, " if they find this, it's his car." Other conversations had Blair speaking with other unidentified people and complaining about people " pillow talking." During these conversations, Holly and McDaniel are mentioned. In one conversation, recorded on July 27, 2009, an unidentified woman reports that McDaniel had asked her if she wanted to know how he " really got shot." The woman continues, stating that McDaniel told her, " that n***er shot me, too. I think the n***er panicked when him and the dude was arguing and I think that n***er panicked and that's what happened because he thought the n***er . . . ." Blair then states, " and the s**t she was describing . . . is exactly how it happened. And I said, 'Damn.' I said 'Damn, I'm thinking [Holly] is the n***er out there running loose.' ...