State v. Spradling

633 S.W.3d 494

STATE of Missouri, Plaintiff-Respondent,

v.Ronald R. SPRADLING, Defendant-Appellant.

No. SD 36333

Missouri Court of Appeals, Southern District, Division Two.

Filed: September 15, 2021

Attorney for Appellant: Katharine P. Curry of Columbia, MO.

Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., and Daniel N. McPherson, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, C.J./P.J.

Richard Spradling (Defendant) was charged by third amended information with committing the following six offenses in September 2017: two counts of the class D felony of kidnapping in the second degree, in violation of § 565.120 (Counts 1 and 3); two counts of the unclassified felony of armed criminal action (ACA), in violation of § 571.015 (Counts 2 and 4); one count of the class E felony of unlawful use of a weapon, in violation of § 571.030 (Count 5); and one count of the class D felony of unlawful possession of a firearm by a felon, in violation of § 571.070 (Count 6).¹ Counts 2 and 4 alleged that: (1) Defendant had two prior ACA convictions on February 17, 1987; and (2) the minimum sentence for a third ACA conviction was 10 years without eligibility for parole.²

At trial, the verdict-directing instructions for the kidnapping charges (Instructions 7 and 9), the unlawful use of a weapon charge (Instruction 11), and the unlawful possession of a weapon charge (Instruction 12) each included paragraphs asking the jury to determine whether Defendant acted in lawful self-defense or lawful defense of property. Instructions 13 and 14 explained lawful self-defense and lawful defense of property, respectively.

The jury found Defendant guilty on each count. The court imposed the following sentences: seven years on each kidnapping count; 12 years on each ACA count; four years on the unlawful use of a weapon count; and six years on the unlawful possession of a firearm count. All sentences were concurrent except for the one involving unlawful possession of a firearm, which was to be served consecutively to the sentences on all other counts. This appeal followed.

Defendant raises four points on appeal. In Points 1-3, Defendant contends the trial court abused its discretion in overruling Defendant's requests to strike venirepersons 14, 24, 43 and 46 for cause. According to Defendant, these venirepersons’ responses during voir dire unequivocally showed they would not follow an instruction stating that a convicted felon could use a firearm in self-defense. In Point 4, Defendant contends the trial court plainly erred in imposing a sentence of 12 years for each ACA conviction. Defendant argues that those sentences were imposed because the court misinterpreted § 571.015 to require a minimum sentence of 10 years on each ACA count. Finding no merit in any of Defendant's points, we affirm.

Points 1-3

Defendant's first three points contend the trial court erred by not striking venirepersons 14, 24, 43 and 46 for cause. For ease of analysis, we consider these three points together. During defense counsel's questioning of the venire, the following occurred:

[Defense counsel]: ... So you're going to hear that [Defendant], who has pled guilty to a felony offense, is not entitled legally to have a firearm.^[3] Is there anybody here who believes as part of his self-defense, if he used a firearm as part of his claim of self-defense, that because he has a felony, he automatically waives his ability to use a firearm for self-defense purposes?

UNIDENTIFIED VENIREPERSON: Yes.

[Defense counsel]: All right. And I see some hands, so we'll kind of go through the same thing again. And I was told I went too fast the last time, so I will go a little slower this time. No. 2?

....

[Defense counsel]: And, again, that would impact your ability to be fair and impartial in this case? Because that's what we're asking this question for, right? You would automatically disbelieve if he gets up there and says, "No, you have a felony. You couldn't have used the gun no matter what"?

VENIREPERSON 2: Right.

Defense counsel then identified a number of persons with their hands raised, including venirepersons 46 and 43. The following then occurred:

UNIDENTIFIED VENIREPERSON: Did you say he was not supposed to have a gun?

[Defense counsel]: As a convicted felon, the law says one is not supposed to possess a firearm. No. 16. No. 6. No. 1.

VENIREPERSON 1: I have a question about that.

[Defense counsel]: Okay. I'll come back to you. Let me – 43. I'm limited in what I can answer, but go ahead and ask your question.

VENIREPERSON 1: Okay. You say – it's like if he didn't possess it, if it wasn't his firearm, if he took it away from someone to defend himself –

[Defense counsel]: That will not be the evidence that you will hear.

VENIREPERSON 1: Right. All right.

....

[Defense counsel]: Okay. Is that – are you able to, then, be fair and impartial towards [Defendant], knowing that wasn't a situation where, for example, they attacked him with a gun and he disarmed the gun? So my question is if you will hear evidence that he had a gun, it was his gun, and that he used it in what he believed to be self-defense of property or self.

VENIREPERSON 1: But he shouldn't have had it in the first place.

UNIDENTIFIED VENIREPERSON: But he's a felon.

[Defense counsel]: But he's a felon. Correct.

VENIREPERSON 1: Right.

....

UNIDENTIFIED VENIREPERSON: So he lost that, and then was in possession of it.

[Defense counsel]: 65. No. 14. No. 17. No. 24. No. 49. No. 29. No. 21. It's okay. You don't have to apologize. It's okay. No. 15. ... And just so that it's clear, everybody whose hand had rose – and I count about 30 individuals – my understanding is all of you that raised your hand, basically, would automatically disbelieve [Defendant] because of that fact, that he's – he's a felon, he wasn't supposed to possess a firearm; and therefore, his self-defense would not be appropriate if he uses a firearm?

VENIREPERSON 22: I'm not saying that I would necessarily –

[Defense counsel]: That's why I want to clarify.

VENIREPERSON 22: – disbelieve –

UNIDENTIFIED VENIREPERSON: Yeah.

VENIREPERSON 22: – his statements.

[Defense counsel]: Okay.

VENIREPERSON 22: I just disagree with if you're going to break one law to uphold another one, is what I –

[Defense counsel]: And that's a good – that's a good clarification. So, No. 22, and I ask it usually broad, and then I come back in a little bit so that we are all on the same page. So even if he violated the felon in possession of a firearm law, right, you would not necessarily take away his ability to defend himself with the use of a firearm as to his other charges?

....

VENIREPERSON 22: I'm not saying that I would disbelieve him, necessarily. I'm just saying that he's already broken this law, and then he's breaking the law of not having a gun so that he can defend himself. That doesn't make sense to me.

[Defense counsel]: Now, I don't – my job is not to try and confuse anybody, so I want to make sure I'm very clear on this. And I know you're kind of saying –

....

VENIREPERSON 15: Okay. So your first question said would we hold it against him. This question is asking would we disbelieve him.

[Defense counsel]: So I asked it differently for a couple different reasons, because sometimes it's terminology, so let me clarify. I don't want anyone being confused. The testimony will be is that [Defendant], we believe, will testify that he used a gun in which he believed he – to defend himself or his property. You will also hear that as a convicted felon he's not entitled to even possess or handle a firearm. The law says if you have a prior felony conviction, you cannot own or possess a firearm. So my question is would anybody here disregard for that reason alone; that is, if he wasn't supposed to have the firearm to begin with, there's nothing that he says that will allow me to give him the ability to have a firearm for self-defense? That is, he could have used a knife, he could have used a bat, he could have – right, something else, but he shouldn't have had the gun. So, therefore, I won't even consider his self-defense for that reason only. And I see some hands. No. 50? And maybe instead of just going down the list, let me just hear what your explanation is so that there's not confusion. And that way, if I need to come back to anybody, we can do that.

....

VENIREPERSON 62: I strongly believe that he gave up his right to a firearm. He did have other – he would have had other options for defending his property. I find it very hard to overlook that.

[Defense counsel]: It'd be difficult to be fair and impartial, as we've talked about?

VENIREPERSON 62: Uh-huh.

[Defense counsel]: Thank you, ma'am. All right.

VENIREPERSON 46: 46. I have the same belief, and I think he shouldn't have had a gun.

[Defense counsel]: 46, you – Okay. Thank you, ma'am.

Following the examination of the panel by counsel for the parties, the trial court asked the entire venire panel about their ability to set aside their opinions and follow the court's instructions on self-defense:

THE COURT: Folks, there's been a few of you that have expressed an opinion about what you believe the law is or at least ought to be. You understand that the Court will give you written instructions if you're chosen to serve as jurors in this case. Those instructions are, in fact, what the law is. What I want to know is if you have an opinion that's contrary to the instructions that I'm going to have to give at the end of this case, are you going to be able to set your opinion about what the law – what you think the law should be and be able to follow the instructions of what the law is? And I'll give you the example. The one that I think is going to come up is self-defense. If I give you an instruction that – and I think [defense counsel] has already, basically, acknowledged that his client has a felony, or at least he expects that's going to be the evidence, that he has a felony – as a felon, he has a right to defend himself, and it lays out the elements that you have to

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