Court of Appeals of Missouri, Western District, Special Division
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Robert M. Schieber, Judge.
Richard A. Starnes and Jennifer Rodewald, Jefferson City, MO, for respondent.
Jeannie M. Willibey, Kansas City, MO, for appellant.
Before Special Division: Lisa White Hardwick, Presiding Judge, Karen King Mitchell, Judge and Cynthia L. Martin, Judge. All concur.
Cynthia L. Martin, Judge.
Carlton Manuel, Jr. (" Manuel" ) appeals his conviction of second-degree (felony) murder and armed criminal action following a jury trial. Manuel seeks plain error review of a claim of instructional error, and argues that there was insufficient evidence to prove that the victim was killed in the perpetration or attempted perpetration of a felony. We disagree and affirm Manuel's conviction.
Factual and Procedural Background
Lee Zemke (" Zemke" ) and Denise Peterson (" Peterson" ) wanted to buy crack cocaine. Peterson called Manuel to arrange to buy drugs. Peterson and Zemke then drove to the sale location. Zemke drove, while Peterson sat in the front passenger seat and spoke with Manuel on the phone to get directions. After some initial difficulty, Zemke and Peterson arrived at the designated sale location near 54th Street and Wayne. Peterson said: " There they are. There they are," when she spotted Manuel and another male standing by the side of the road.
Manuel approached the passenger side of the vehicle and spoke with Peterson. Manuel asked how much crack she and Zemke wanted. Zemke said, " Fifty," which was about a half of a gram. Manuel handed Peterson a baggie. Peterson handed the baggie to Zemke, who was concerned that the crack looked fake. Zemke handed the baggie to Peterson and said, " No." Peterson asked Zemke if she should try it, and he replied, " Do what you want." Manuel broke off a piece, and gave it to Peterson. Peterson put the piece into a crack pipe and tried to smoke it, but it did not start to melt as it should.
Zemke said, " We're out of here," and started to drive off. Zemke heard at least five gunshots and felt the car get hit several times. Zemke stopped the car several blocks away near 51st Street and Woodlawn. He saw that Peterson had been shot. There was blood on the back of her head and she was catatonic. Though Zemke had a cell phone, he went to nearby houses to find someone who could call for help.
Police responded to the scene and arranged to transport Peterson to the hospital. In their investigation, the police located the shooting scene. There they found 12 CVC 9mm Luger cartridge shells and two bullet fragments. The police observed bullet holes in Zemke's car, and that the back window had been shot and shattered. A bullet jacket was found in the back of Zemke's car.
Zemke initially lied to the police about the circumstances of the shooting, and reported that he and Peterson had been shot at after leaving a store. After Peterson died, Zemke said he " couldn't lie anymore" and told the police that he and Peterson had been attempting to buy crack cocaine. The police ultimately located Manuel through Peterson's cell phone.
Manuel initially denied any involvement in, or knowledge of, the crime. He later told police that he had set up the drug buy for Peterson, but was not present at the scene. Still later, he admitted to police that he was at the scene and " made the
deal," but that an accomplice started shooting at Zemke's car when it took off.
Manuel was charged with second-degree (felony) murder and armed criminal action, and was convicted as charged. He was sentenced to concurrent terms of twenty years for murder and five years for armed criminal action. Manuel filed this timely appeal.
Manuel raises two points on appeal. First, Manuel seeks plain error review of a claim that the verdict director for felony murder was legally erroneous because it failed to tender each of the essential elements of the crime. Second, Manuel claims that there was insufficient evidence to convict him of felony murder because the jury could not have concluded beyond a reasonable doubt that Peterson was shot " in the perpetration of" or " in the ...