Court of Appeals of Missouri, Eastern District, First Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of the City of St. Louis. Honorable Joan L. Moriarity.
Andrew E. Zleit, St. Louis, MO, for appellant.
Chris Koster, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
LAWRENCE E. MOONEY, PRESIDING JUDGE.
The defendant, Edward Walker, appeals the judgment of the Circuit Court of the City of St. Louis following his conviction by a jury of the class-A felony of second-degree murder, in violation of section 565.021 RSMo. (2000), and the unclassified felony of armed criminal action, in violation of section 571.015. The jury convicted the defendant in connection with the shooting death of Gene Wright. Pursuant to the jury's recommendation, the trial court sentenced the defendant to consecutive terms of imprisonment of 30 years and 15 years, respectively.
The trial court allowed the State to question venirepersons extensively about whether they could recommend a life sentence without parole if they convicted the defendant of first-degree murder. But the court prohibited the defendant from asking during voir dire whether the venire members could consider the entire range of punishment if the defendant were convicted of second-degree murder. We conclude that the trial court abused its discretion. Thus, we remand the cause for a new penalty phase of the trial for second-degree murder and for resentencing on that offense. We affirm the judgment in all other respects.
The defendant, a native of the St. Louis area, served as a lance corporal in the United States Marine Corps at Camp Pendleton, California. In California, the defendant became acquainted with the victim, Gene Wright, an aspiring rap artist, and the defendant undertook management and promotion of the victim's music career. According to the defendant, the men frequently argued, and the victim owed the defendant roughly $5,000 to $7,000 in connection with money the victim had borrowed to advance his musical endeavors. The defendant also described an occasion at a night club when he saw the victim engage in an altercation with others and fire shots at their car.
In order to pay the defendant, the victim devised a plan whereby the two men would use a rental car to transport five pounds of marijuana to St. Louis to sell. The defendant agreed to the plan, and the two men drove from southern California to St. Louis in early February 2011. After arriving in St. Louis, the victim insisted that the defendant drive him to the arranged location to collect the money for the drugs. The defendant did so.
The defendant testified that he and the victim began arguing on the way to their destination. The defendant explained that he and the victim argued over money, and that the victim acted in a hostile manner, appeared threatening, and attempted to dominate the defendant as he often had during previous arguments. The defendant stated that the two men continued to argue for about ten minutes after arriving at their destination, that the victim continued yelling at the defendant outside the car, and that the victim continued yelling as he retrieved his jacket from the car and placed his gun in his jacket pocket. The defendant testified, " It was like he was dominating me, talking aggressively to me, hostile to me and then he pointed a weapon at me." The trial court sustained the State's hearsay objection and precluded the defendant from stating expressly what the victim had said to him immediately before the shooting.
The defendant testified that the victim began walking away from the car, then drew his gun, raised, and aimed it at the defendant. The defendant stated he " thought that was an imminent threat on [his] life," so he shot the victim in self-defense. He explained that his combat training as a Marine took over, and that he automatically shot the victim repeatedly as he had been trained to do until the threat ceased. The defendant testified that he took the victim's gun and immediately left the scene. He abandoned the rental car the men had driven from California, and set it afire in a wooded area. He stated that he threw both his gun and the victim's gun into the river near the location where he left the car.
An eyewitness, C.M., testified for the State. He stated that he was in the front room of his home, located on the street where the defendant and the victim drove to collect the money. He noticed two men in a car parked in front of his neighbor's house. C.M. saw the victim get out of the car, " skip" around to the driver-side backseat, and retrieve a jacket from the car. C.M. stated that the victim then " skipped" toward the middle of the street, and the driver 'Jumped out of the car and started shooting." C.M. testified that the victim never turned toward the defendant, that he did not see a gun in the victim's hand, and that the defendant did not take anything from the victim's body or from the ground near him. He also stated that he did not observe a fight or argument between the two men. C.M. identified the defendant as the shooter.
After disposing of the car and the weapons, the defendant flew back to California that night, and returned to work at Camp Pendleton the following day. The defendant told his supervisor that he had left the area without permission over the weekend, and that the last person to see him had been shot. Agents from the Naval Criminal Investigative Service were informed, and they contacted St. Louis police and interviewed the defendant at the request of the police. The defendant later told his supervisor that he had shot the victim because the victim owed him $20,000, and he admitted setting the car afire.
The State charged the defendant with first-degree murder and armed criminal action. Pursuant to the State's motion in limine, the trial court precluded the defendant from questioning the members of the venire about their ability to consider the full range of punishment in the event the jury found the defendant guilty of second-degree murder. But the trial court then allowed the State to question the members of the venire extensively about their ability to assess the mandatory sentence of life imprisonment without the possibility of parole in the event the jury found the defendant guilty of first-degree murder. In addition to questions of this nature presented to the entire venire, the State expressly addressed the issue with 29 individual panelists.
Without objection, the trial court stated that it would submit instructions for second-degree murder and accompanying armed criminal action. During its guilt-phase deliberations, the jury sent a note to the trial court asking about the penalty for second-degree murder. The trial court responded that the jury should be guided by the instructions as given. Unlike the instruction for first-degree murder, the instruction for second-degree murder did not address the range of punishment, nor had the jurors received this information during voir dire as they did with the first-degree murder charge.
The jury convicted the defendant of second-degree murder and armed criminal action. After about two hours of
penalty-phase deliberations, the jury reported to the court that it was deadlocked as to punishment for second-degree murder. The trial court gave the hammer instruction regarding punishment over the defendant's objection. The jury then recommended a sentence of 30 years of imprisonment for second-degree murder and a sentence of 15 years for armed criminal action. The trial court sentenced the ...