State of Missouri, Respondent, v. Damon Caldwell, Defendant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Respondent, v. Damon Caldwell, Defendant/Appellant. Case Number: No. 70597 Handdown Date: 06/03/1997 Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen Counsel for Appellant: Counsel for Respondent: Opinion Summary: A jury found Damon Caldwell guilty of all charges in a four count information. He was sentenced under Count I to life imprisonment without possibility of probation or parole for murder in the first degree, section 565.020; to life imprisonment under Count II for armed criminal action relating to the murder, section 571.015; to thirty years under Count III for assault in the first degree, section 565.050; and to thirty years for armed criminal action attending the assault charge. We affirm, but transfer the case to the Missouri Supreme Court because of the general interest and importance of the instruction problems. Division Five Holds: (1) Whether witness's positive identification was tainted was a question for the trial judge; (2) the trial court's findings regarding the defendant's motion to suppress were supported by the evidence; (3) the trial court did not err in admitting an edited tape of a witness's statement because the court acted within its discretion in allowing the jury to hear a more accurate version of the statement after the defendant had opened the matter up by his inquiries; and (4) although the verdict director deviated from the MAI Notes on Use, we are unable to say that the deviation prejudiced the defendant. We believe, however, that the question of deviation from MAI in the face of a specific objection is of such general interest and importance that the case should be transferred to the Missouri Supreme Court. Citation: Opinion Author: Charles B. Blackmar, Senior Judge Opinion Vote: TRANSFERRED TO THE MISSOURI SUPREME COURT. Clifford H. Ahrens, C.J., and William H. Crandall Jr., J., concur.

Opinion:

There follows a tragic tale of bravado and violence involving members of rival urban gangs. One young man is dead, a second was severely wounded, and others face long prison terms. Much more could be written in an appropriate medium, but we deal only with the legalities. A jury found Damon Caldwell, age 17 at the time of the offense, guilty of all charges in a four count information. He was sentenced under Count I to life imprisonment without possibility of probation or parole for murder in the first degree, section 565.020 (FN1); to life imprisonment under Count II for armed criminal action relating to the murder, section 571.015; to thirty years under Count III for assault in the first degree, section 565.050; and to thirty years for armed criminal action attending the assault charge. We affirm, but transfer the case to the Missouri Supreme Court because of the general interest and importance of the instruction problems. The defendant/appellant's statement of facts has been of little help to us because it commingles controverted evidence that the jury did not have to believe with evidence supporting the verdicts. This is not the kind of statement that is contemplated by Rule 84.04(c). If an appellant considers it necessary to refer to controverted evidence in order to demonstrate that claimed trial error is prejudicial, such evidence should be stated or summarized separately and the purpose should be distinctly stated. The defendant does not challenge the sufficiency of the evidence to support the verdicts. The jury could have found that the defendant, together with Lonnie Lockhart and some companions, were affiliated with a youth street gang known as the "Evergreen Crips." The group, some of whom lived in the city of St. Louis, paid a visit to Kinloch on the evening of January 28, 1995. They were seen by Larry Cole and Levell Griffin, members of a rival street gang known as the "Bloods." Lockhart inquired as to whether any of the people in his party wanted to "get on" Griffin and Cole. These two ran when they saw Lockhart and his companions enter an automobile, but began walking when they reached the corner of Lurch and Martin Luther King streets in Kinloch. They then saw Lockhart and a man later identified as the defendant on the front porch of a building. Lockhart approached them and fired at Cole from a distance of fifteen feet,

striking him in the leg. Cole fell to the ground and Lockhart fired more shots at him from close range, inflicting a fatal neck wound. The defendant then appeared from behind Lockhart, who was very large, and fired at Griffin, the bullet passing through his chest. Griffin recovered and later identified the defendant as his assailant. The defendant, when questioned by police, admitted to being present and firing one shot.

1. Grounds Affecting All Charges

The defendant raises several claims of trial error as grounds for reversal. His first two points are singularly lacking in substance. Griffin picked the defendant's picture from a display of six photographs shown to him by the police, and identified him in court at the trial. The defendant moved to suppress the identification, producing testimony that Griffin had identified a picture of another person, that he was not wearing his glasses at the time he was shot, and that he gave vague testimony as to the time and place of the photographic display. Whether these circumstances tainted his positive identification of the defendant in court was initially a question for the trial judge, and we see no reason to disturb his resolution of this issue. The defendant also moved to suppress his confession. The officer who took the statement testified that he followed proper Miranda (FN2) procedures and did not use force or threats. The trial judge could credit this testimony and did not have to accept the defendant's claim that he was struck or beaten. His findings are supported by the evidence and we see no reason for not accepting them. The defendant complains in a third point that the trial court erred in allowing the prosecutor to introduce into evidence an edited version of the statement of Will Johnson, one of the defendant's companions on the Kinloch trip, to Detective Butch Albert. Defense counsel cross-examined Detective Albert in detail as to what Johnson had told him, seeking to establish that Detective Albert had coached Johnson about what to say. The prosecution then sought to introduce the entire tape into evidence, and, when the defendant objected, the court provided an edited tape including only the matters as to which Detective Albert had been cross-examined. Neither side called Johnson as a witness. The court acted within its discretion in allowing the jury to hear a more accurate version of Johnson's statement after the defendant had opened the matter up by his inquiries. See State v. Glessner, 918 S.W.2d 270, 281 (Mo. App. 1996). There is, furthermore, no demonstration of prejudice because the jury had already heard the essence of the taped statement.

Inasmuch as the tape was simply a definitive version of what had already been given in response to defense counsel's questions, the claim of improper bolstering is not well taken. For the reasons stated we perceive no prejudicial error regarding the convictions on Counts III and IV.

1. The Murder Verdict Director

In addition to the three points discussed, which we have found to be without merit, the defendant complains of the verdict directing instruction for the charge of first degree murder. The first three paragraphs of this instruction charge that the essential elements of murder in the first degree were committed by Lonnie Lockhart. This is a type of accessory liability in which, under the evidence, "the conduct of the offense was committed entirely by" Lockhart. See Notes on Use to MAI-CR 3d 303.04, page 304-23. The fourth paragraph of the given instruction reads as follows: Fourth, that with the purpose of promoting or furthering the death of Larry Cole, the defendant Damon Caldwell acted together with, aided or encouraged Lonnie Lockhart in causing the death of Larry Cole, and did so after deliberation, which means cool reflection on the matter for any length of time no matter how brief. (Emphasis supplied). The Notes on Use for MAI-CR 3d 304.04 recognize that instructions on first degree murder present a special problem when accomplice liability is charged, because the jury must be clearly advised that the prosecution has the burden of establishing that the accused accessory acted after deliberation. The notes provide at page 304-30 that the last paragraph of 304.04 should be modified to read as follows: "...that with the purpose of promoting or furthering the death of [name of victim], the defendant aided or encouraged [name(s) of other person(s) involved . . .] in causing the death of [name of victim] and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief."

Thus, the instruction as given does not follow the injunction of the Notes on Use. The defendant specifically objected to the form of submission both during the instruction conference and in his motion for new trial. The court overruled the objections, expressing the opinion that all three of the options posed by the basic instruction, "acted together with, aided or encouraged," were supported by the evidence. We must determine whether the deviation from the Notes on Use for first degree murder submissions dictates reversal. The question is not in any sense one of submissibility. From the evidence the jury could have found that the defendant knew that Lockhart had a weapon, that Lockhart suggested in the hearing of the defendant that he might "get on" members of the rival gang, that the armed defendant accompanied Lockhart to the location of the shooting, and that the defendant's presence, as support, bodyguard, or otherwise, contributed to the killing of Cole. From this scenario the jury could have found that he acted after deliberation. Such findings, however, were not the only findings the jury could reasonably make as to the defendant's mental state and participation. The jury could also have found that the defendant had no prior expectation that Lockhart would shoot Cole, and that he made the decision to fire at Griffin only after Lockhart had initiated the shooting. It is important that the jury know the precise findings it must make in order to assess guilt as charged in Count I. Rule 28.02(c) states emphatically as follows: Whenever there is an MAI-CR instruction or verdict form applicable under the law and Notes on Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form. Rule 28.02(f) suggests that the door is not entirely closed to variations, reading as follows: Violation of Rule - Effect. The giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes on Use shall constitute error, the error's prejudicial effect to be judicially determined, provided that objection has been duly made pursuant to Rule 28.03. Here the deviation from the Notes on Use is patent, and objection was timely made. We, however, consider the difference between the instruction suggested in the Notes on Use and the instruction given to be minimal. We cannot say

that the given instruction is legally erroneous except for lack of conformity to the Notes on Use. The instruction enabled the parties to argue the element of deliberation to the jury, thus serving one of the principal purposes of jury instructions. The jury also had a correct formulation of the concept of deliberation, quite apart from such arguments as counsel chose to make, and was informed as to the proper application of the law to the facts. The concept of accessory liability is not easy for laypersons to understand in any situation and, as the MAI-CR committee has recognized, the problem of explaining the element of deliberation as it relates to an accessory is specially difficult. The requirement of a mandatory life sentence without probation or parole enhances the difference between murder in the first degree and murder in the second degree. The whole purport of MAI and MAI-CR is to give authoritative guidance and to discourage judges and lawyers from trying to "improve on" the prescribed text. When the offense charged is murder in the first degree, the case is especially strong for requiring strict adherence to the prescribed forms and Notes on Use. The MAI-CR committee apparently thought that the requirement of deliberation would be more clearly presented to the jury if the "acted together with" submission, though quite appropriate for other accomplice liability cases, was omitted from first degree murder instructions. The state cites State v. Howard, 896 S.W.2d 471 (Mo. App. 1995); State v. Richardson, 923 S.W.2d 301 (Mo. banc 1996); and State v. Leisure, 810 S.W.2d 560 (Mo. App. 1991). We find these cases of no help at all in the present context. Richardson contains extensive discussion of accomplice liability, but in the context of justifying the pattern instructions. Richardson, 923 S.W.2d at 317. State v. Livingston, 801 S.W.2d 344 (Mo. banc 1991), upheld a verdict in a robbery case over the objection that the verdict directing instruction used the words "another person" in the required findings when there was no evidence that anybody but the defendant on trial was the actor. The court pointed out that the appellate court, in determining prejudicial effect, could consider the absence of objections at the trial or in the motion for new trial. Id. At 349; See also State v. Green, 812 S.W.2d 779, 787 (Mo. App. 1991). Here, as has been noted, specific objection was made. In State v. Cross, 594 S.W.2d 609 (Mo. banc 1980) our supreme court delivered a stern lecture to a trial judge who deviated from MAI-CR and reversed a conviction because of his introductory statements to the jury, even though it did not point out any particular error, and did not dwell on the issue of prejudice. The opinion enunciates the MAI theory in

depth. Later cases show some leniency. State v. Feltrop, 803 S.W.2d 1 (Mo. banc 1991), did not turn on deviation from MAI, but the court affirmed a conviction and a death sentence even though the penalty phase instructions on the only aggravating circumstance submitted were erroneous. The majority of the court sensed no prejudice, and affirmed. With the law as it is, we are not disposed to reverse the conviction because of a deviation from the Notes on Use, when we are unable to say that the deviation prejudiced the defendant. We believe, however, that the question of deviation from MAI in the face of a specific objection is of such general interest and importance that the case should be transferred to the supreme court pursuant to Article V, section 10 of the Missouri Constitution and Rule 83.02. The judgment of conviction is affirmed. The case is transferred to the Missouri Supreme Court. Footnotes:

1. All statutory references are to RSMo 1994.
2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Separate Opinion: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.