State v. Lindsey

597 S.W.3d 240

STATE of Missouri, Respondent,

v.Brad LINDSEY, Appellant.

WD 82097

Missouri Court of Appeals, Western District.

OPINION FILED: December 10, 2019

Application for Transfer Denied April 28, 2020

Christopher R. Wray, Jefferson City, MO, for respondent.

Damien De Loyola, Kansas City, MO, for appellant.

Before Division Three: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge

Gary D. Witt, Judge

Brad Lindsey ("Lindsey") appeals his conviction for murder in the first degree, section 565.020,¹ armed criminal action, section 571.015, unlawful use of a weapon, section 571.030, and tampering with physical evidence, section 575.100, following a jury trial in the Circuit Court of Jackson County. Lindsey alleges that there was insufficient evidence upon which the jury could have convicted him of felony tampering with physical evidence because there was no evidence that Lindsey's actions actually impaired or obstructed his prosecution. Lindsey also alleges that the circuit court erred in failing to sua sponte issue a corrective instruction to the jury after the State incorrectly argued that the jury had to find Lindsey not guilty of murder in the first degree before it could consider the lesser-included offenses. We affirm.

Factual Background²

On the night of May 14, 2016, Lindsey and D'Adrian Bell ("Victim") were present at the home of DeWayne Lester ("Lester"). There were five other people in the house including Lester. Most were relaxing, listening to music, and drinking. Lindsey drank three to four cups of wine and one beer, but also smoked marijuana and cigarettes dipped in PCP. Lindsey testified that he was intoxicated.

At some point that night, Victim tried to purchase marijuana from Lindsey. Victim and Lindsey disagreed over the price and began to argue. They were in the living room of Lester's home and Lester asked both Lindsey and Victim to leave. Instead, the argument moved to one of the bedrooms. Another guest, Myeisha Shaw ("Shaw"), went to the bedroom to try and calm Lindsey down. The argument, however, escalated into a physical fight. Lindsey told police that Victim swung at Lindsey but missed, which caused Lindsey to fall to the floor and cut his hands. Lindsey then got up and hit Victim three times. Lester came into the bedroom and found both men on the ground fighting. Lester pulled the two men off of each other.

Lester told police that he had separated Victim and Lindsey a couple minutes before the shooting occurred. During that time, Lester again asked the men to leave his home. Lindsey pulled out at .38 caliber revolver; Lester said "no, Brad" before Lindsey shot the Victim. Lindsey admitted during his testimony that Victim never had a gun nor threatened to harm him with a weapon.

Lindsey pulled the gun's trigger three times before it fired a bullet. On the fourth pull, the gun fired. Ultimately, Lindsey pulled the trigger five times, successfully firing a bullet only twice, hitting Victim in the neck and chest. Victim died from his gunshot wounds.

Lester called 911 after the shooting. Lindsey fled the house with the gun, his cell phone, and Victim's cellphone. He threw the gun and his clothing into the Missouri River from the Broadway Bridge. He disposed of the cell phones by throwing them out the window while driving on 71 Highway. He then went to eat with his nephew and then returned to his residence.

At trial, Lindsey argued that he acted in self-defense. He testified that he had seizures due to an automobile accident prior to the shooting. To stop the seizures, Lindsey had a vagus nerve stimulator ("VNS") implanted in his chest. He testified that he was concerned during the fighting about Victim hitting his VNS implant and causing it to fail to properly operate.

The State tried Lindsey for murder in the first degree, armed criminal action, unlawful use of a weapon for firing a handgun while intoxicated, and tampering with physical evidence. During trial, Lindsey testified that he felt "very guilty" for tampering with evidence. When asked about firing a weapon while intoxicated, he responded: "Yes. I'm guilty for that." He denied guilt as to murder, claiming self-defense.

The jury found Lindsey guilty of murder in the first degree, armed criminal action, unlawful use of a weapon for firing a handgun while intoxicated, and tampering with physical evidence. The judge found Lindsey to be a prior offender and sentenced Lindsey to life in prison without parole for the murder in the first degree, ten years in prison for armed criminal action, four years for unlawful use of a weapon, and four years for tampering with physical evidence. Lindsey's sentences were ordered to run concurrently. This appeal followed.

Discussion

I.

Lindsey's first point on appeal alleges that there was insufficient evidence to convict him of Count IV, felony tampering with physical evidence pursuant to section 575.100. Lindsey claims that while he did tamper with physical evidence, to be guilty of felony tampering there must be some evidence that the tampering actually impaired or obstructed the prosecution or defense of a felony. He argues that because of the overwhelming evidence immediately connecting Lindsey to the shooting, there was no such evidence of actual impairment or obstruction of either parties' ability to present the case to the jury under these facts.

A claim of sufficiency of the evidence to sustain the conviction need not be raised in a motion for new trial to preserve the issue for appeal. Rule 29.11(d)(3); State v. Claycomb , 470 S.W.3d 358, 361 (Mo. banc 2015). "In reviewing a claim that there was not sufficient evidence to sustain a criminal conviction, this Court does not weigh the evidence but, rather, accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignores all contrary evidence and inferences." Claycomb , 470 S.W.3d at 362 (internal quotations omitted). "This Court asks only whether there was sufficient evidence from which the trier of fact reasonably could have found the defendant guilty." Id. (internal quotations omitted).

Under section 575.100,

1. A person commits the crime of tampering with physical evidence if he:

(1) Alters, destroys, suppresses or conceals any record, document or thing with purpose to impair its verity, legibility or availability in any official proceeding or investigation; or

(2) Makes, presents or uses any record, document or thing knowing it to be false with purpose to mislead a public servant who is or may be engaged in any official proceeding or investigation.

2. Tampering with physical evidence is a class D felony if the actor impairs or obstructs the prosecution or defense of a felony; otherwise, tampering with physical evidence is a class A misdemeanor.

Lindsey's argument focuses on subsection two because he was charged with felony tampering. Tampering with evidence is a class D felony "if the action impairs or obstructs the prosecution or defense of a felony." Lindsey contends that this means the State must prove actual impairment or obstruction of the prosecution or defense's ability to try the case in order to charge the tampering as a felony. The State counters that the proper interpretation of subsection two is that if the underlying crime being prosecuted or defended is a felony--as opposed to a misdemeanor--the tampering is a felony. No proof of actual impairment or obstruction is necessary.

We find that we need not resolve this dispute as to the proper interpretation of the statute because Lindsey waived his sufficiency of the evidence claim by confessing to the charge of felony tampering with physical evidence at trial. Lindsey and his counsel had the following exchange during Lindsey's testimony at trial:

Q. One of the counts is tampering with evidence. For throwing the stuff away.

A. Yes.

Q. How do you feel about tampering with evidence?

A. Very guilty.

Q. And the other, there's a count of firing a weapon while intoxicated.

A. Yes. I'm guilty for that.

Additionally, in his closing argument, Lindsey's counsel made the following statement:

You'll go up to the jury room to start your deliberations. You should probably start with the easy verdicts first. Which is Count III and Count IV. The defendant told you on the stand, I'm good for those counts. I'm guilty of Count III and Count IV. So you should probably start your deliberations just fill out Count III and Count IV of guilty.

"A judicial admission is an act done in the course of judicial proceedings that concedes for the purpose of litigation that a certain proposition is true." State v. Lewis , 582 S.W.3d 162, 166 (Mo. App. W.D. 2019). "The general rule is that when a defendant makes a voluntary judicial admission of fact before the jury, it serves as a substitute for evidence and dispenses with proof of the actual fact. The admission is conclusive on him for the purpose of the case." State v. Denzmore , 436 S.W.3d 635, 643 (Mo. App. E.D. 2014) (quoting State v. Eacret , 456 S.W.2d 324, 327 (Mo. 1970) ). "[A]n admission made by an attorney in open court during trial which is against the interests of his clients is presumed to be true and courts are warranted in acting thereon." Denzmore , 436 S.W.3d at 643 (quoting State v. Vandiver , 592 S.W.2d 304, 306 (Mo. App. E.D. 1979) ).

In Denzmore , the defense counsel admitted in his opening and closing statement defendant's guilt regarding the class D felony of leaving the scene of an accident. Denzmore , 436 S.W.3d at 643. An essential element of that crime is that the property damage is in excess of $1,000. Id. At the close of State's evidence, defense counsel moved for a judgment of acquittal as to leaving the scene of the accident because the State had failed to establish a value as to the property damage. Id. at 642. On appeal, the defendant alleged that there was insufficient evidence to find him guilty of leaving the scene of an accident because the State failed to prove...