In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED100713
)
Plaintiff/Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
v. )
)
JOHN L. DAILEY, ) Honorable Margaret M. Neill
)
Defendant/Appellant. ) Filed: December 9, 2014
Introduction
John L. Dailey (Appellant) appeals from the trial court’s judgment entered upon a
jury verdict convicting him of first-degree murder, Section 565.020,1 first-degree assault,
Section 565.050, and two counts of armed criminal action, Section 571.015. We affirm
in part, and reverse and remand in part.
Factual and Procedural Background
The evidence adduced at trial, viewed in the light most favorable to the verdict, is
as follows.
On September 21, 2011, at approximately 10:30 p.m., Ashley McLarty (McLarty)
was driving south on North Broadway. Christopher Jones (Jones) was riding in the front
passenger seat of McLarty’s vehicle. At the intersection of North Broadway and Wall
Street, Appellant, driving a pickup truck, pulled out from Wall Street, past the stop sign
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All statutory references are to RSMo 2006, unless otherwise indicated.
and part of the way into Broadway. McLarty swerved to avoid being struck, stopped, and
then yelled, “Slow down.” After driving away, McLarty noticed the pickup truck coming
behind her as if it was going to ram the back of her car. While McLarty was stopped at a
stop sign at the intersection of Hornsby and North Broadway, Appellant stopped next to
her car and both parties rolled down their windows. Appellant said “wasn’t nobody
gonna hit your car[,]” to which McLarty responded “watch where the f--- you goin’.”
Appellant then pulled out a gun and said “shut up, bitch or I’ll shoot you.” McLarty
drove off.
McLarty testified she did not hear any gun shots but that Jones said, “He shot
me.” McLarty pulled over to the side of the road and Appellant sped off past them.
Jones opened the passenger side door, fell out of the car and onto the ground. Jones died
from a single gunshot wound to the chest from a .40 caliber handgun. It was later
determined that the bullet went through the rear driver’s side window of McLarty’s
vehicle and through the driver’s seat before striking Jones in the back.
Adrian Mason (Mason) testified that on September 21, 2011, at approximately
10:30 p.m., he was driving north on North Broadway. He was stopped at the intersection
of Hornsby and North Broadway when he saw two vehicles, one of them a GMC pickup
truck with a black front end, stopped at the intersection facing south. Mason saw a flash
of light and then the pickup truck drove toward him, forcing Mason to swerve off the
road and onto the curb in order to avoid the truck. Mason was not able to see the driver.
Mason testified the other vehicle pulled over and he made a U-turn to pull behind the car.
Mason saw a woman run toward the passenger side, open the door, and a man fall out of
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the car. Mason drove to his workplace, about a block away, and alerted security, who
called the police.
On September 29, 2011, McLarty was hanging out with some people near the
intersection of Hornsby and North Broadway when she saw Appellant driving the pickup
truck down Hornsby. Jones’s brother, who was present, got into his car, followed the
truck and obtained its license plate number. McLarty called and left a message with this
information for homicide Detective Scott Sailor (Detective Sailor). On October 3, 2011,
McLarty saw the truck again, this time parked outside of a home on Claxton, information
she again forwarded to Detective Sailor.
Detective Sailor testified McLarty directed him to 5481 Claxton, located
approximately a quarter of a mile from the intersection of Hornsby and North Broadway,
and gave him the license plate number she had obtained. Sailor’s research indicated
Appellant owned the truck. McLarty subsequently identified Appellant as the shooter in
a photo spread and in a physical lineup. Appellant’s truck, a 1991 GMC pickup with a
dark blue passenger door and right front quarter panel, was impounded. Both Mason and
McLarty identified Appellant’s vehicle as the one involved in the September 21 incident.
Appellant presented an alibi defense, asserting he had taken his children out to
dinner that evening, returning home with them between 10:30 and 11:00 p.m. Appellant
also asserted he had a white refrigerator in the bed of his truck on the day in question.
The State charged Appellant, as a prior offender, with first-degree murder (Count
I), first-degree felony assault (Count III), and two counts of armed criminal action
(Counts II and IV). At the close of the evidence, the jury found Appellant guilty on all
four counts. The court sentenced Appellant to life without the possibility of parole on
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Count I and 20 years’ imprisonment on each of the remaining counts, all sentences to run
concurrently. This appeal follows.
Discussion
Point I – Sufficiency of the Evidence
In his first point on appeal, Appellant argues the trial court erred in overruling his
motion for judgment of acquittal and sentencing him for first-degree murder because
there was insufficient evidence as a matter of law from which a reasonable juror could
have found beyond a reasonable doubt the element of deliberation required for the
offense.
On review of a challenge to the sufficiency of the evidence supporting a criminal
conviction, this Court determines whether there was sufficient evidence from which a
reasonable juror could find the defendant guilty beyond a reasonable doubt. State v.
Jordan, 181 S.W.3d 588, 592 (Mo. App. E.D. 2005). In determining whether sufficient
evidence supports the jury’s verdict, this Court considers the evidence, and the reasonable
inferences drawn therefrom, in the light most favorable to the verdict, disregarding all
contrary evidence and inferences. Id. If the State fails to produce sufficient evidence of
each element of the offense, we must reverse the trial court’s judgment. Id. It is the
jury’s duty to assess the reliability, credibility, and weight of the witness’s testimony.
State v. Giles, 949 S.W.2d 163, 166 (Mo. App. W.D. 1997).
A person commits first-degree murder when he “knowingly causes the death of
another person after deliberation upon the matter.” Section 565.020.1. Deliberation is
defined as “cool reflection for any length of time no matter how brief[.]” Section
565.002(3). Deliberation occurs when the actor has time to think and intends to kill the
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victim for any period of time, no matter how short. State v. Hudson, 154 S.W.3d 426,
429 (Mo. App. S.D. 2005). Deliberation may be inferred from the circumstances
surrounding the crime. Id. A lack of concern for and a failure to attempt to aid the
victim supports an inference of deliberation. State v. Moore, 949 S.W.2d 629, 633 (Mo.
App. W.D. 1997).
Appellant asserts the State failed to present sufficient evidence supporting a
finding of deliberation, arguing the evidence only supports a finding that Appellant was
acting under the influence of a violent passion suddenly aroused by the traffic dispute and
ensuing argument. We disagree.
After almost colliding with McLarty’s vehicle, McLarty shouted at Appellant to
“slow down.” This prompted Appellant to aggressively pursue McLarty and instigate an
argument. After doing so, Appellant brandished a gun and threatened to shoot McLarty,
prompting McLarty to try to drive away. Although McLarty was fleeing, Appellant fired
a shot into McLarty’s car, killing Jones. As McLarty pulled over to aid Jones, Appellant
sped away without providing Jones any aid or seeking any assistance.
In sum, Appellant pursued the victims, made verbal and physical threats against
them, shot at them while they fled, and then sped away leaving Jones for dead. These
actions provided the jury with sufficient evidence of deliberation. We find the State
produced sufficient evidence from which a reasonable trier of fact could find Appellant
guilty beyond a reasonable doubt of first-degree murder. Appellant’s Point I is denied.
Point II – Sentence for First-Degree Assault
In his second point on appeal, Appellant maintains the trial court plainly erred in
sentencing him to a term of years for the class B felony of assault in the first-degree that
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exceeded the maximum term of imprisonment for a class B felony, and that this
unauthorized sentence violated Appellant’s substantial rights and resulted in manifest
injustice. The State concedes the point and we agree.
To obtain relief under the plain-error rule, a defendant must demonstrate that the
trial court committed an evident, obvious, and clear error that substantially affected his
rights, resulting in manifest injustice or a miscarriage of justice. State v. Greer, 348
S.W.3d 149, 153-54 (Mo. App. E.D. 2011); Rule 30.20.2 “An unauthorized sentence
affects substantial rights and results in manifest injustice.” Greer, 348 S.W.3d at 154. It
is plain error for the trial court to impose a sentence in excess of that authorized by law.
Id.
Appellant was charged with and convicted of first-degree assault, a Class B
felony as a prior offender. Section 565.050. Appellant was not charged as a persistent
offender, which would have authorized a Class A felony sentence with a 10- to 30-year
term of imprisonment. Sections 558.016.7(2) and 558.011.1(1). The authorized term of
imprisonment for a class B felony is “a term of years not less than five years and not to
exceed fifteen years[.]” Section 558.011.1(2). Because the maximum sentence
Appellant could have received was 15 years’ imprisonment, the trial court plainly erred
when it imposed a sentence of 20 years’ imprisonment on Count III for first-degree
assault.
We reverse the trial court’s judgment with respect to Appellant’s sentence for
Count III, first-degree assault, and remand with instructions for the trial court to
resentence Appellant in accordance with our holding. In all other respects, we affirm the
trial court’s judgment.
2
All rule references are to Mo. R. Crim. P. 2012.
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Conclusion
C
The judgm
ment of the trial
t court is affirmed in part, and revversed and rremanded in
part for
f further prroceedings consistent
c wiith this opiniion.
Sherri B
B. Sullivan, P
P.J
Maryy K. Hoff, J.,, and
Philip
p M. Hess, J.,
J concur
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