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State v. Henderson

Court of Appeals of Missouri, Western District

May 29, 2018



          Before Victor C. Howard, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge.


         Angela Henderson appeals her convictions for second-degree felony murder, section 565.02, armed criminal action, section 571.015, and tampering with physical evidence, section 575.100, and sentences as a prior and persistent offender to consecutive terms of life, twenty-five years, and 3 years imprisonment, respectively.[1] Henderson contends that the trial court plainly erred in submitting the verdict directors for felony murder and tampering with physical evidence and that it abused its discretion in excluding evidence regarding a letter written to the prosecutor by Henderson's cellmate. The convictions are reversed, and the case is remanded for a new trial.

         Factual Background

         Clinton Justice, known as "Sam, " (Victim) was a Navy veteran and lived in an apartment in St. Joseph on his monthly veteran's benefits. Henderson dated Victim for seventeen years. Their relationship was "on-again off-again." Josh Mollett is Henderson's mentally challenged son. He was in his early 20s at the time of Victim's murder. Victim was like a "stepdad" to Mollett; he looked after Mollett. They loved each other and spent a lot of time together.

         Approximately three months before the murder, Henderson began a relationship with Kim Keith. Keith pleaded guilty to second-degree murder for Victim's murder and was serving a fifteen-year sentence. As a condition of his plea agreement, he was required to testify truthfully against Henderson. Keith was a drug dealer, who sold methamphetamines and other drugs. He was also addicted to methamphetamines. He testified that late on the night of Friday, December 7, 2012, or in the early morning hours of Saturday, December 8, he received a call from Henderson that she wanted to meet him to buy an eight ball of meth, which sold for $300. When he arrived at the meeting, Henderson was with her son, Mollett, who Keith had known for about ten years "since he was a little kid." Henderson and Mollett did not have the money to buy the drugs so Keith accompanied them in their car to an apartment building to get the money.

         When they arrived, Henderson got out of the car, and Keith gave her "the dope" to show "whoever [she] was getting the money from." Keith did not know at that time from whom Henderson was going to try to get the money. Keith and Mollett waited in the car, and each did a shot of meth. After waiting "a good ten minutes" for Henderson to return, Keith and Mollett went into the apartment because Keith "wanted my money or my dope, one of the two." Keith testified that he was "really high" at the time and that the three of them went into Victim's apartment "to do a drug deal."

         When they entered the apartment, Keith saw Victim, who he realized he knew because his cousin was married to Victim's daughter. Victim was sitting in a recliner, and Henderson was sitting on a loveseat. Henderson still did not have the money and told Victim that she needed it. Victim said, "I'm not buying you your f***ing dope." Mollett then told Victim, "[W]e got to have the money." According to Keith, Henderson then "looked at [Mollett] and went like that (demonstrating), and [Mollett] got up, walked behind [Victim], pulled his head back, and when [Mollett] did that, [Henderson] went and cut him from side to side on the throat." Keith got the drugs back and left on foot.

         As he was walking down the street, Henderson and Mollett pulled up in their car and asked him if he wanted to trade some Percocet and Xanax for meth. When he said no, Mollett held up a $50 bill and asked if he could get a half of gram of meth. Keith sold him the drugs and continued walking.

         Victim had contact with his two daughters throughout the week before his murder. On Monday and Tuesday, December 3 and 4, 2012, one of Victim's daughters took him Christmas shopping for his family. Later in the evening of the fourth, Victim celebrated his fifty-seventh birthday with his family. On Thursday, he talked to one daughter on the phone around 8pm. Another daughter went to Victim's apartment around 9:30 or 10pm that night to loan him $20 because he was short on cash after Christmas shopping. Neither daughter had contact with Victim on Friday, December 7, although one of them tried to call him several times that day. After still not hearing from their father on Saturday, December 8, one of his daughters and her husband went to his apartment that evening to check on him. They found Victim laying face down in a pool of blood in front of the recliner in the living room. After not finding a pulse, the daughter's husband called 911.

         When police arrived, they found Victim had wounds to his neck and right thumb. He had one sock on and one off. A bloody sock was stuck to the wounds on his neck, a fact closely-guarded by police. Victim had blood on the bottom of his bare foot and on the bottom of the sock on the other foot. There were blood and bloody footprints on the carpet from the recliner to the front door and smears of blood on the front door. A green folding chair was lying on top of Victim's body. Cast-off blood splatter patterns were found showing the injuries occurred in front of the recliner; and the right armrest was saturated in blood.

         Victim had been stabbed in the upper chest through the right clavicle collarbone, striking a rib and cutting his carotid artery. There was also "a longer slicing type entry" into the neck that produced "a gaping wound" and sliced the jugular vein and created a small hole in the trachea. Victim died from massive blood loss, "his circulating volume, " "on the order of a couple of quarts." In addition to the neck wounds, Victim had a defensive wound to his right thumb.

         According to his daughters, Victim was very meticulous about his apartment and kept it very clean at all times. It was very neat and tidy, and nothing was ever out of place. Although he no longer smoked, he allowed others to smoke in his apartment but would always empty and wash ashtrays immediately after they were done. Police found cigarette butts in an ashtray in the living room. Henderson's DNA was found on the butt; only one in 1.347 quadrillion individuals in the Caucasian population and one in 55.8 quadrillion individuals in the black population fit the profile. Mollett's DNA was found on two other cigarette butts. Mollett's DNA was also found on a cup in the apartment.

         Henderson spoke with police two times shortly after Victim's body was found, giving them inconsistent stories about when she last saw Victim. She initially told them that she had been with Victim Wednesday through Friday morning, leaving around 1 lam. She then told them she was at the Victim's apartment Tuesday night, leaving Wednesday morning, and not near the weekend. After police pointed out the discrepancies in her stories, Henderson returned to the original version that she left Victim's apartment Friday morning.

         Becky Osborn was a friend of Victim's family; she "was basically adopted" by Victim's family when she "was a little kid." She considered Victim as "like my dad" and Mollett was "like my little brother." Victim was there for her when she was growing up when her parents weren't. She had known Henderson for sixteen to eighteen years. On March 28, 2013, almost four months after the murder, Osborn saw Mollett and Henderson in her old neighborhood. When Henderson went into a building, Osborn waived Mollett down to where she was and had a conversation with him about what he had witnessed on the day of the murder. Mollett was distraught and crying. He told Osborn that he was sitting in the living room, smoking with Victim, when "they stabbed [Victim], they threw the knife here, we ran out the back door." Mollett said, "I'm scared, Becky, I don't want to die. I don't know what to do." Osborn urged Mollett to tell the police "this was a murder" because "[Victim] was your dad, dude." When Henderson came back outside and called Mollett over, he told Osborn that he loved her and that was the last time she saw him. She then contacted the investigating detective and told him what she had just heard.

         On April 2, 2013, police arrested Henderson and Mollett and interviewed them separately. Mollett told detectives that he and Henderson were at Victim's apartment one afternoon playing Guitar Hero on PlayStation when Keith called Henderson and showed up shortly thereafter. Mollett was sitting in a folding chair, and Henderson was on a couch. About twenty to thirty minutes later, Keith and Victim began arguing because Victim said he didn't have the money that he owed Keith for drugs. Mollett said that he saw Keith stab Victim in the neck. He said that after being stabbed in the neck, Victim attempted to use a sock to save himself but that it was too late. They all watched Victim die. He and Henderson tried to get Keith to leave but Keith started going through Victim's drawers in the apartment looking for money or drugs. Henderson finally threatened to call the police, and they all left the apartment. Mollett said that Keith gave him the murder weapon, Victim's Scorpion knife, and said "good luck." Keith threatened that he would hang Mollett from a tree and that he would shoot Henderson if they told anyone what had happened. Mollett and Henderson left walking in one direction and Keith in another. After walking approximately twenty minutes, Henderson told Mollett it would be a good idea to dispose of the knife, so he threw it in some bushes. Mollett said that Henderson and Keith were together until February and that she was scared and left Keith because of what he did to Victim. The knife was later located by two men in their side yard and retrieved by police. Victim's DNA was found in the fluid on the blade of the knife; only one in 1.471 quadrillion Caucasians fit the profile. Neither Henderson's nor Mollett's DNA was found on the knife.

         In her interview that day, Henderson told detectives that she didn't know Keith at the time of the murder but started dating him in January 2013. She said that after she broke up with Keith in February, her son Mollett told her that Keith had admitted to killing Victim. She also said that she did not call the police when she learned of Keith's admission.

         Detectives interviewed Keith the next day, April 3. He told them that he had just started dating Henderson two weeks before, he did not know anything about Victim's murder, and it had been a few years since he'd last seen Victim. On cross-examination, Keith testified that he first told detectives the version of events about which he testified at trial on the day after he entered his guilty plea for Victim's murder pursuant to a plea agreement.

         In July 2013, a psychologist and certified forensic examiner evaluated Mollett. The psychologist diagnosed him with mild mental retardation with deficits in reasoning, problem solving, abstraction, and judgment. A general adult psychiatrist at Family Guidance Center testified that Mollett had been a patient there for various mental illnesses between 2001 and 2012. During his time at the center, Mollett had been diagnosed with bipolar mood disorder Type 1, ADHD, and either borderline intellectual functioning (IQ between 71 and 84) or mild mental retardation (IQ 55 to 70).

         While in the Buchanan County jail on May 1, 2013, Henderson was recorded saying, "I talked to my lawyer today, and she says she was going to talk to his attorney because we're wanting to file and get him incompetent to stand trial and that way he cannot be a witness against me and his statement cannot be used in court." During an October 23, 2013 phone call, Henderson was recorded saying, "They have charged [Mollett] with robbery. Why did they charge him with robbery?" A female on the other end of the line said, "They say he took [Victim's] pills." Henderson responded, "No. I know who took-who got [Victim's] pills." The unknown female said, "You need to shut the f*** up." During a May 12, 2014 call, Henderson was recorded saying, "They have no evidence and they can't make [Mollett] competent, so their case is f***ed." Finally, Henderson was recorded on September 26, 2015, saying, "You got the paperwork that I sent you in the yellow envelope?" A female on the other end said, "What paperwork is that?" Henderson replied in a really low voice, "Testimony. Yours." The female responded, "Well, yeah, I got everything you sent me."

         Kelli Hoard was Henderson's cellmate for six months in the county jail. In August 2015, she asked to speak to police regarding statements Henderson made to her about Victim's murder. She testified that although Henderson denied several times that she was at the scene of or involved in the murder, at some point she admitted that "they'd been there, been in an argument of some sort." Henderson told her that Keith had slit Victim's throat while he was sitting in a chair in an argument over oxycodone and Xanax. Henderson also told her that after he was stabbed, Victim went over to the door and locked them out. Henderson said they threw the knife over by a sewage drain and then went to a casino. She said they did not take $500 worth of Christmas presents from the scene because they thought the police would think they did it.

         Hoard pleaded guilty to second-degree felony murder in an unrelated case and was sentenced to twenty years imprisonment. Thereafter, she wrote a letter to the prosecutor in December 2015 attempting to recant her August statement to the police about Henderson. She said that she misunderstood what Henderson told her, that Henderson was only telling her what the police thought she had done, not what she actually had done.

         Finally, Randy Peterson was Keith's cellmate in 2013 in the county jail. Keith told Peterson that he killed Victim and that Henderson only walked in on it.

         The jury found Henderson guilty of second-degree felony murder, armed criminal action, and tampering with physical evidence. The trial court sentenced her as a prior and persistent offender to consecutive terms of life, twenty-five years, and 3 years imprisonment, respectively. This appeal by Henderson followed.

         Henderson raises three points on appeal. In points one and two, she challenges the trial court's submission of Instruction No. 8, the verdict director for second-degree felony murder, and Instruction No. 12, the verdict director for tampering with physical evidence arguing that they omitted several elements and definitions of the charged crimes. In point three, Henderson asserts that the trial court abused its discretion in excluding certain evidence and testimony from Henderson's cellmate, Hoard, regarding another letter she had written to prosecutors offering to do whatever the prosecutor needed to help herself in her own case. Points one and two are dispositive and require reversal and remand for a new trial as discussed below. Because point three requests the same relief, and it is uncertain whether the evidentiary issue will arise on retrial, it will not be addressed.

         Instructional Error

         In points one and two, Henderson asserts that the trial court erred or plainly erred in submitting Instruction No. 8, the verdict director for second-degree felony murder, and Instruction No. 12, the verdict director for tampering with physical evidence, because the instructions omitted several elements of the charged crimes.

         Rule 28.03 requires a defendant to make specific objections to jury instructions before the jury retires to consider the verdict, stating distinctly the matter objected to and the grounds of the objection. It further requires the defendant to raise the objection in the motion for new trial. Id. When a defendant fails to object to an instruction as required by Rule 28.03, her claim of instructional error is not preserved for appellate review. State v. Myles, 479 S.W.3d 649, 655 (Mo. App. E.D. 2015). Such claim may, therefore, only be reviewed, if at all, for plain error. Id.

         Rule 30.20 provides, in part, "Whether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Plain error review for instructional errors requires a two-step process. State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014); Myles, 479 S.W.3d at 655. The first step involves determining whether the claimed error is, in fact, plain error affecting substantial rights. Hunt, 451 S.W.3dat260. "Substantial rights are involved if, facially, there are significant grounds for believing that the error is of the type from which manifest injustice or miscarriage of justice could result if left uncorrected." Id. Error is plain if it is "evident, obvious, and clear." Id. (internal quotes and citation omitted). If plain error affecting substantial rights is found, the reviewing court determines whether the error actually did result in manifest injustice or a miscarriage of justice. Id. Instructional error rises to the level of plain error if the trial court "so misdirected or failed to instruct the jury that manifest injustice or miscarriage of justice has resulted." Id.

         Rule 28.02(c) mandates the exclusive use of an MAI-CR instruction whenever there is one applicable under the law and Notes on Use. State v. Clay, 533 S.W.3d 710, 715-16 (Mo. banc 2017). "If an MAI-CR instruction is modified or a non-MAI instruction used, then the modification or non-MAI instruction 'shall be simple, brief, impartial, and free from argument' and, 'where possible, shall follow the format of MAI-CR instructions, including the skeleton forms therein.'" Id. at 716 (quoting Rule 28.02(d)). The failure to give an instruction in accordance with MAI-CR or any applicable Notes On Use is error, the prejudicial effect of which must be judicially determined. Rule 28.02(f); State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007).

         "A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of the offense charged." State v. Stover, 388 S.W.3d 138, 153-54 (Mo. banc 2012)(internal quotes and citation omitted). The due process rights of the defendant are violated when an instruction relieves the State of its burden to prove the existence of every essential element of the crime and does not require the jury to deliberate on and determine a contested element of the crime. Id. at 154. Plain error exists when a verdict directing instruction omits an essential element and the evidence establishing the omitted element was seriously disputed. Id; Cooper, 215 S.W.3d at 126.

         Felony Murder Verdict Director

         Henderson first claims that the trial court plainly erred in submitting Instruction No. 8, the verdict director for second-degree felony murder, for several reasons. She contends that it failed to submit the underlying felony of attempted possession of a controlled substance in a separate instruction with a cross reference to it in the felony murder instruction, it improperly instructed on the underlying felony of attempted ...

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