State v. Whitley
2013 Mo. App. LEXIS 1072
Mo. Ct. App.2013Background
- Appellant (D’Andre Whitley) and friends were gambling at Vincent’s house; a fight between Appellant and Victim (Kelvin Nelson) occurred on the porch where Victim pinned Appellant.
- Appellant left, threatened Victim (“you’re a dead [man]”), then returned about ten minutes later, fired a shot at the house, kicked in the locked front door, entered with a 9mm handgun, and shot Victim multiple times, injuring him.
- Victim and another witness identified Appellant from photo lineups as the shooter; Appellant was charged with first-degree assault, first-degree burglary, and two counts of armed criminal action.
- Defense requested a jury instruction on the lesser-included offense of second-degree assault (based on sudden passion arising from adequate cause); the trial court denied it and the jury convicted on the greater offenses.
- Appellant moved for acquittal on burglary at close of State’s case and after all evidence; motions were denied. He also faced a motion to disqualify his counsel for alleged prior representation of Victim, which the court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing second-degree assault lesser-instruction (sudden passion) | There was provocation (Victim pinned Appellant) sufficient for sudden passion; instruction should be given | Appellant left, had time to cool, returned with gun — no sudden passion at time of shooting | Denied — no evidence sudden passion existed because Appellant left and returned after a temporal cooling period |
| Whether evidence was sufficient to prove unlawful entry for first-degree burglary | Appellant previously had permission to enter Vincent’s home; no proof he entered unlawfully when he returned | Shooting at the house, kicking in locked door, prior threat extinguished any prior license to enter | Denied — sufficient evidence that any prior permission was extinguished by shooting, forced entry, and threat |
| Whether trial court plainly erred by denying State’s motion to disqualify defense counsel for conflict | State: counsel had prior representation of Victim creating conflict; counsel should be disqualified | Appellant did not join motion or affirmatively consent to counsel; no record of waiver but no request to remove counsel either | Denied review on direct appeal — claim is essentially ineffective-assistance and must be raised in post-conviction proceeding; no facial plain-error shown |
Key Cases Cited
- State v. Crenshaw, 14 S.W.3d 175 (Mo. App. E.D. 2000) (standard for reviewing entitlement to lesser-included instruction)
- State v. Hahn, 37 S.W.3d 344 (Mo. App. W.D. 2000) (trial court must give lesser-included instruction when evidence supports acquittal of greater and conviction of lesser)
- State v. Boyd, 913 S.W.2d 838 (Mo. App. E.D. 1995) (sudden passion unavailable if time allowed for passion to cool)
- State v. Grim, 854 S.W.2d 408 (Mo. banc 1993) (standard for reviewing sufficiency of evidence)
- State v. Oropeza, 785 S.W.2d 2 (Mo. App. W.D. 1989) (unlawful entry defined as entering without license or privilege)
- State v. McGinnis, 317 S.W.3d 685 (Mo. App. W.D. 2010) (previous permission to enter can be extinguished by defendant’s later conduct)
- State v. Kezer, 918 S.W.2d 874 (Mo. App. E.D. 1996) (conflict-of-interest claims framed as trial error may actually be ineffective-assistance claims for post-conviction relief)
- State v. White, 247 S.W.3d 557 (Mo. App. E.D. 2007) (plain-error review requires showing manifest injustice)
- Walker v. Gateway Nat. Bank, 799 S.W.2d 614 (Mo. App. E.D. 1990) (court may exercise discretion to review a deficient appellate point when argument is discernible)