APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS. The Honorable Julian L. Bush, Judge.
Smith was represented by Gwenda R. Robinson of the public defender's office in St. Louis.
The state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.
Zel M. Fischer, Judge. All concur.
Zel M. Fischer, Judge.
Elvis Smith appeals the judgment of conviction entered by the circuit court of the City of St. Louis after a jury found him guilty of murder in the first-degree and armed criminal action. Smith claims: (1) the circuit court erred in refusing to submit his self-defense instruction on murder and assault and (2) the circuit court's written judgment contains a clerical mistake that he pleaded guilty to murder and armed criminal action. The State cross-appeals, asserting the circuit court erred in granting Smith's motion for judgment of acquittal on assault and armed criminal action in connection with the assault. This Court granted transfer and has jurisdiction. Mo. Const. art. V, § 10.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: On May 21, 2011, Smith sold Martez Williams a small amount of heroin, but Williams refused to pay him. That same day, Smith told Jesse White that he " was going to get [Williams]." The next day, Smith and Wilber Hardwrict, Smith's drug supplier, encountered Williams, a
man named Josh, and David Thomas in the Peabody housing project. Smith asked Williams if he had the money he owed for the heroin, and Williams responded, " What you want to do, fight?" Smith pulled out a gun, and Williams grabbed Josh to use as a shield. Williams pushed Josh at Smith and ran in a zigzag pattern until he stopped to hide between two dumpsters. While Williams ran, Smith fired his gun three or four times. One of the shots Smith fired struck Jnylah Douglas in the head while she was playing on a nearby playground. Douglas died a few weeks later from the gunshot wound.
The State charged Smith with one count of first-degree murder, one count of first-degree assault, two counts of armed criminal action, and one count of unlawful possession of a firearm. In Count I, the State charged that " [Smith] after deliberation, knowingly caused the death of Douglas by shooting her when he was shooting at Williams." Count III provided that " [Smith] shot at Williams, and such conduct was a substantial step toward the commission of the crime of attempting to kill or cause serious physical injury to Williams, and was done with the purpose of committing such assault."
The circuit court held a four-day jury trial. The State presented the testimony of several witnesses including Detective Dan Fox from the St. Louis metropolitan police department, eyewitnesses Juan House, David Thomas, Penny Griffin, Jesse White, and Williams. Smith testified in his own defense. Following the close of all evidence, Smith moved for a judgment of acquittal on either murder in the first or second-degree or assault in the first-degree on the grounds that convictions for both would violate double jeopardy. The circuit court overruled Smith's motion but reserved for reconsideration the double jeopardy issue before entering judgment. At the instruction conference, Smith proffered a self-defense instruction for murder and assault. The State objected to the submission of a self-defense instruction, and the circuit court sustained the State's objection.
The jury found Smith guilty of first-degree murder, first-degree assault, and both counts of armed criminal action. Smith filed a motion for judgment of acquittal notwithstanding the jury's verdict, asserting that convictions for first-degree murder and armed criminal action in connection with the murder, first-degree assault, and armed criminal action in connection with the assault violated double jeopardy and § 556.041(1), RSMo 2000. The circuit court partially granted this motion, finding that, " to avoid double jeopardy, there has to be an element in each charge that's not present in the other charge." The circuit court concluded that " ...