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State v. Summers

Court of Appeals of Missouri, Western District, Fourth Division

December 16, 2014

STATE OF MISSOURI, Respondent,
v.
KHIRY D. SUMMERS Appellant

Appeal from the Circuit Court of Cole County, Missouri. The Honorable Patricia S. Joyce, Judge.

For Appellant: Damien DeLoyola, Kansas City, MO.

For Respondent: Daniel McPherson, Jefferson City, MO.

Before Division Four: Alok Ahuja, C.J. Presiding, Victor C. Howard, and James Edward Welsh, JJ. All concur.

OPINION

Page 442

James Edward Welsh, Judge

Khiry D. Summers appeals his convictions, following a jury trial, of second-degree (felony) murder (§ 565.021, RSMo[1] ), first-degree robbery (§ 569.020), and armed criminal action, (§ 571.015), for which he was sentenced to twenty-three years' incarceration. Summers also challenges his consecutive sentence for armed criminal action. We affirm the convictions but remand for resentencing on the armed criminal action conviction.

Background

Viewed in the light most favorable to the verdict,[2] the evidence at Summers' trial showed that in April 2012, Summers and two others, Tracy Session and Brandon Chase, conspired to rob Keith Mosley of some marijuana. They arranged to meet with Mosley on the pretext of buying marijuana from him, but rather than purchase the marijuana, they planned to rob Mosley of it.

On April 22, 2012, Summers, Chase and Session set out to meet with Mosley at an apartment in Jefferson City. Summers was armed with his brother's .380-caliber Ruger handgun, and Session was armed with a .40-caliber Glock handgun. When the three arrived at the apartment, they found Mosley there with another man, Brent Slaughter. Chase and Summers, who had covered his face with a black T-shirt, entered the apartment. Session waited outside.

Once inside, Summers pulled his .380-caliber handgun on Mosley and demanded that he hand over the marijuana. Mosley walked toward Summers and attempted to reason with him. Summers tried to grab the marijuana from Mosley, but Mosley put it behind his back. Summers then fired three shots into the floor. One of the bullets ricocheted and struck Slaughter in the leg. Hearing the shots, Session opened the door and fired one .40-caliber bullet into Mosley's abdomen. The bullet lacerated Mosley's spine and he fell to the floor, dropping the marijuana. While Mosley lay on the floor, Summers took the two bundles of marijuana that Mosley had been holding. Summers, Session and Chase then left the apartment.

When the police arrived, they found Mosley lying in the doorway of the apartment. Officers found a single .40-caliber shell casing about four to five feet from the apartment's front door. They also observed three bullet marks in the dining room floor and found three .380-caliber shell casings that were later matched to

Page 443

Summers' brother's gun. The officers found a small amount of marijuana on the floor. Mosley was taken to a local hospital and then airlifted to a hospital in Columbia, where he died. A .40-caliber bullet was recovered from Mosley's body during the autopsy.

Summers fled to Illinois but returned to Jefferson City a few days later and surrendered to police. In the presence of his attorney and after being read his Miranda[3] rights, Summers gave a statement detailing his involvement in the robbery and shooting. It was consistent with the foregoing recitation of facts. A videotaped recording of Summers' statement was admitted into evidence at his ...


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