Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court Appeal from the Circuit Court. V. 1122-CR02010-01. Honorable Thomas J. Frawley.
For Appellant: Andrew E. Zleit, St. Louis, MO.
For Respondent: Chris Koster, Adam Rowley, Jefferson City, MO.
Gary M. Gaertner, Jr., Judge. Kurt S. Odenwald, P. J., concurs., Robert G. Dowd, Jr., J., concurs.
Gary M. Gaertner, Jr., Judge
Elex Murphy (Defendant) appeals the judgment entered upon his conviction after a jury found him guilty of murder in the
second degree, assault in the first degree, and two counts of armed criminal action. Defendant raises the question of whether a hand or a fist can qualify as a " dangerous instrument" in support of a conviction for the unclassified felony of armed criminal action; the same question we consider in another case decided
today, State v. Evans, ED100110. Defendant also argues the court clearly erred in denying his challenges to the State's peremptory strikes of African-American venirepersons as racially motivated under Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), We affirm in part and reverse in part.
The evidence at trial, in the light most favorable to the verdict, was the following. On the morning of April 16, 2011, Yen Nguyen (Nguyen) and her husband, Hoang Nguyen (Victim), were walking home from a Vietnamese grocery store. Victim was 72 years old and Nguyen was 59 years old at the time. Victim and Nguyen were walking through an alley hand-in-hand, pulling a cart containing their groceries. Nguyen saw four people, two males and two females, walking toward them. Victim moved in front of Nguyen to make way for the four people to pass in the alley.
As the four people came closer, Defendant reached out and grabbed Victim's shirt. Defendant hit Victim in the head, and Victim fell to the ground. Nguyen began to scream, and Defendant came over to her and hit her in her right eye. Nguyen's glasses were knocked off of her face, and she was not able to see through her right eye. She tried to call for her husband to help her, but he was not responding. She went over to him to try and wake him, but he wasn't moving and had blood all over his face.
An ambulance arrived and took Victim first to the hospital. Nguyen followed in a second ambulance. Nguyen had a broken bone and received three stitches near her right eye. At some point, Nguyen was taken in a wheelchair to see her husband. He died shortly thereafter, while she was in the room with him. Victim had a three-inch bruise on the side of his head. The injury to his head caused his brain to swell, which created pressure on his skull and led to his death.
On April 17, 2011, Nguyen identified Defendant in a photographic lineup, administered by Detective Heather Sabin. Detective Sabin also arranged a live lineup two days later, but Nguyen was unable to participate because her glasses had not been repaired. Detective Sabin took a photograph of the men during the live lineup and later showed it to Nguyen. Nguyen also identified Defendant in this photograph. Detective Sabin noticed that Defendant's knuckles were swollen when he was there for the lineup.
After police arrested Defendant, he shared a jail cell for a period of time with a man named Mark Moore (Moore). Defendant introduced himself to Moore as " Knockout." Defendant asked Moore if he had heard about someone " getting knocked out" in South St. Louis, and Defendant told Moore " that was me," Defendant later told Moore that Defendant and his friends were hanging out by a laundromat near the scene of the attack, and his friends were making fun of him because he had hit someone without knocking that person out. Defendant told his friends he was going to knock out the next person he saw. Defendant told Moore ...