Beckett v. State

675 S.W.3d 533

Erick E. BECKETT, Appellant,

v.STATE of Missouri, Respondent.

WD 85222

Missouri Court of Appeals, Western District.

OPINION FILED: July 18, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied August 29, 2023

Application for Transfer to Supreme Court Denied October 24, 2023

Kathryn Marie Merwald, Kansas City, MO, for appellant.

Karen Louise Kramer, Jefferson City, MO, for respondent.

Before Division Four: Gary D. Witt, Chief Judge, Presiding, Lisa White Hardwick, Judge, Kevin D. Harrell, Special Judge

Gary D. Witt, Judge

Erick Beckett ("Beckett") appeals the judgment of the Circuit Court of Cass County, Missouri ("motion court"), denying his amended motion to vacate, set aside, or correct the judgment and sentence, pursuant to Rule 29.15,¹ following an evidentiary hearing. On appeal, Beckett argues the motion court erred in denying his amended motion because Beckett's trial counsel ("trial counsel") was ineffective in failing to investigate and call at trial a firearms expert witness to support Beckett's defense. We reverse the judgment of the motion court, vacate the conviction and sentence, and remand for a new trial.

Factual and Procedural Background²

On February 23, 2013, Beckett called 911 to report that he had shot his wife ("Victim") a couple of times at their home. Police responding to the call found Victim lying on the bed in the master bedroom with her head in a pool of blood. The police also found a Smith and Wesson handgun (containing a live cartridge) and two more cartridges (one live and one spent) on the bed near Victim's head. Emergency response personnel initiated life-saving procedures at the scene, but Victim was pronounced dead shortly after arriving at the hospital. Beckett was indicted on two charges--murder in the first degree, [section 565.020,^3] (count I) and armed criminal action, [section 571.015,] (count II).

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At trial, Beckett testified that he routinely carried his handgun with him around the house and that the gun was always within his or Victim's reach. In the early morning hours of February 23, 2013, after a conflict with Victim that ended in their bedroom, Beckett went to clear and secure the handgun, which Victim had dropped on the bed, but when Beckett jerked the gun off the bed, it fired in his hand. He grabbed the handgun again, and it kicked and fired again. Beckett called 911 and stayed with Victim until the police arrived, and Beckett was taken into custody. He testified that he did not mean to shoot Victim and that it was an accident.⁴

The medical examiner who performed the autopsy on Victim testified at Beckett's trial on behalf of the State. The medical examiner found two gunshot entrance wounds --one on Victim's right forehead and the other on the left side of her neck--and one exit wound on her back from the bullet that entered her neck. Both shots were fired from fewer than three feet away from Victim. The shot to Victim's forehead caused extensive damage to her brain and was fatal. The medical examiner declared the cause of death to be multiple gunshot wounds and the manner of death to be homicide. He testified that, in cases involving accidental shootings, there is usually a single gunshot wound; after performing more than 4,000 autopsies, he could not recall ever "call[ing] a multiple gunshot wound an accidental matter."

A firearm forensic expert, [Kathy May ("May"),] called to testify by the State, said she tested the handgun involved in the shooting and determined that it was functioning properly. She indicated that the gun was equipped with both a trigger safety to prevent the gun from firing accidentally and a firing pin safety. She also testified that, during testing, the gun fired only once per trigger squeeze, and the trigger pull, i.e. , the pounds of pressure needed to move the trigger rearward, was eleven pounds. She concluded that, even if picked up by the trigger, the gun would not fire accidentally because the heavy trigger pull acted as a third safety.

In addition to eliciting evidence throughout the trial about the two shots, the State emphasized the issue during its closing argument. The prosecutor stated that the fact that Victim was shot twice proved the shooting was intentional. He said, "[t]he truth is two shots equals homicide. Now, two shots is important here. Two shots."

With respect to count I of the indictment, the jury received instructions on lesser included offenses ranging from murder in the first degree to involuntary manslaughter in the second degree. The jury found Beckett guilty of first-degree murder and armed criminal action. Beckett waived jury sentencing, and the trial court sentenced Beckett to concurrent terms of life without parole and thirty years’ imprisonment. This Court affirmed the judgment of conviction in State v. Beckett , 540 S.W.3d 881 (Mo. App. W.D. 2018).

Beckett filed a motion to vacate, set aside, or correct the judgment and sentence pursuant to Rule 29.15, and, after a finding that appointed counsel abandoned Beckett by failing to timely file an amended motion, newly appointed counsel filed a timely amended motion. As relevant to this appeal, the amended motion alleged that trial counsel was ineffective in failing to conduct an adequate investigation and failed to present a firearms expert witness that would testify that the gun at issue was capable of discharging shots accidentally.

The motion court conducted an evidentiary hearing at which Beckett, trial counsel, and a firearms expert, David Kingsbury ("Kingsbury") testified.

Kingsbury did not examine the firearm at issue in this case but relied on the testimony from the witnesses at trial, the exhibits, and the medical examiner's report to reach his conclusions. Kingsbury testified that Beckett's trial testimony that he did not mean to shoot Victim was plausible, and none of the evidence was inconsistent with Beckett's testimony as to how the shooting occurred. Kingsbury disagreed with the State's expert witness's trial testimony that the firing of two shots necessarily indicates the shooting was intentional.

Kingsbury testified that the events leading up to the shooting, as described by Beckett, in which Beckett and Victim were involved in a domestic dispute involving alcohol while a gun was present, is a common background scenario often seen in unintentional shootings. Beckett testified that he and Victim had been in an argument that evening and twice Victim had placed the loaded gun against his head threatening to shoot him. When Victim dropped the gun onto the bed and "flopped down", Beckett grabbed the gun and that is when it discharged twice. Kingsbury testified that the altercation between Beckett and Victim could have led to a state of stress in Beckett that could have reduced his fine motor control. Kingsbury concluded that Beckett's account of the first shot was plausible, in that Beckett could have reached for the loaded weapon on the bed in an attempt to clear and secure the gun, and in the process, Beckett could have placed his finger on the trigger as he was grabbing it and exerted enough force on the trigger to unintentionally discharge the weapon.⁵ Kingsbury also concluded that Beckett's account of the second shot was plausible, in that the recoil and sound from the first shot could have led to shock resulting in an involuntary muscle contraction while Beckett was trying to regain his grip on the gun, which has been documented to result in unintentional discharges.

Regarding the factors that contribute to unintentional discharges, Kingsbury testified that trigger travel, meaning the distance the trigger needs to be pulled in order to release the firing mechanism and discharge the round in the chamber, is an important consideration. Here, the gun involved in the incident, a Smith & Wesson enhanced Sigma series, had a shortened trigger pull relative to the original Sigma series. The State's firearm expert witness, May, did not discuss trigger travel at trial. Although the trigger pull on the weapon was measured at eleven pounds, Kingsbury testified that Beckett's physical condition at the time of the shooting could overcome the trigger pull with his index finger during a gross motor movement which Beckett described. Kingsbury discussed one particular study which found in testing that 6.25% of involuntary contractions of the trigger finger met or exceeded twelve pounds.

Kingsbury also reviewed police reports regarding the crime scene, specifically the location of the spent cartridges or casings, and concluded that the position of the spent cartridges relative to the mechanics of the weapon were consistent with the weapon being discharged in a sideways position or horizontal plane during the first shot, which aligns with Beckett's account that the gun fired while he was picking it up from the bed. With the gun sideways, the spent cartridge being ejected from the gun would have gone up in the air rather than sideways, resulting in the spent cartridge landing on the bed (where one of the spent cartridges was found) rather than off to the side. As the gun discharged the second time, if it was moved into a vertical position, the spent cartridge from the second round would have been ejected to the right side, landing to the side of the bed (where another one of the spent cartridges was found). Further, the distance between the spent cartridges, eight feet, supports Beckett's testimony that the weapon was in a significantly different position during the second shot than the first shot. Kingsbury testified that, based on his review of the evidence, there is nothing that would rule out that this was an unintentional discharge.

Kingsbury also testified that he disagrees with the medical examiner's testimony that the fact that multiple shots were fired necessarily indicates the shooting was intentional. Kingsbury testified that the published literature regarding unintentional discharges establishes that unintentional discharges can...