# State v. Beal

> Missouri Court of Appeals · June 2, 1998 · 966 S.W.2d 9

URL: https://www.frixlaw.com/law-library/cases/9761869

## Case

- **Full name:** STATE of Missouri, Respondent, v. Steven B. BEAL, Appellant
- **Court:** Missouri Court of Appeals
- **Decided:** June 2, 1998
- **Citations:** 966 S.W.2d 9; 1997 WL 693728
- **Precedential status:** Published
- **Opinion:** Concurrence by Ellis
- **Judges:** Ulrich, Smart, Ellis
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ELLIS, Judge,
concurring.
State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), teaches that it is a rare murder case where a second degree murder instruction will not be required if requested. Our recent holding in State v. Smith, 966 S.W.2d 1 (Mo.App. W.D. 1997), instructs similarly. While I concur in the principal opinion, I write separately to articulate why I deem the decision herein consistent with the precepts of Santillan and Smith .
In the vast majority of homicide cases, the defendant is entitled to a second degree murder instruction if requested. Santillan, 948 S.W.2d at 576 ; State v. Mease, 842 S.W.2d 98, 112 (Mo. banc 1992); Smith, 966 S.W.2d at 4-5 . “[I]f there is any doubt upon the evidence, the trial court should resolve any doubts in favor of instructing on the lower degree of the crime, leaving it to the jury to decide which of two or more grades of an offense, if any, the defendant is guilty.” Santillan, 948 S.W.2d at 577 . It is only in the relatively small number of cases where there is no contradictory or confusing evidence regarding deliberation that the second degree murder instruction need not be given if requested. State v. Mease, 842 S.W.2d at 112 ; Smith, 966 S.W.2d at 6 . This means, “in effect, only in those instances when a reasonable juror could not draw different inferences from the facts presented on the issue of whether the defendant deliberated.” Smith, 966 S.W.2d at 6 .
I am persuaded the instant appeal is such a case. Charles Kirk, the security guard, knew the victim, Stephen Brown, and knew him to be a jovial person. Just prior to Mr. Brown’s death, Mr. Kirk observed that Mr. Brown seemed scared and was looking over his shoulder. Immediately after making that observation, Mr. Kirk saw the white car drive into the parking lot near where Mr. Brown was walking, and saw a man exit the car and run, with his hand under his shirt, down the hill toward Mr. Brown. Three shots were fired and the man ran back to the car, got in and it sped away. From this evidence, the only reasonable inference that can be drawn is that the men in the car were stalking Mr. Brown waiting for the right location to kill him. This inference is buttressed by the short length of time between the arrival of the car in the parking lot and the man’s exit from the car, to his quick return to the ear with the intervening gunshots.
*15 The fact that three gunshots were fired, and Mr. Brown died from two gunshot wounds to his back, fired from intermediate range, likewise can only support an inference of deliberation. The multiple shots, the fact that Mr. Brown was shot in the back, and from some distance (as opposed to close range), negate any motivation which might lead to an inference of lack of deliberation. There was no robbery nor any attempt, Mr. Brown was unarmed and Mr. Beal admitted Mr. Brown did not attack him. Moreover, as observed in the principal opinion, Mr. Beal’s testimony cannot form the basis for the giving of the second degree murder instruction because the physical evidence that Mr. Brown was shot in the back was such that no reasonable juror could believe his version that he panicked and shot three times at Mr. Brown as Mr. Brown was facing him.
Thus, in the instant case, I can find no contradictory or confusing evidence on the issue of deliberation, nor can I ascertain any reasonable inference from the evidence which might enable a rational fact finder to conclude that Mr. Beal did not act upon cool reflection. Unlike Santillan and Smith , there are no facts regarding conduct or a relationship between the defendant and the victim prior to the shooting which could give rise to conflicting inferences. Therefore, in my view, this is one of those unique cases like State v. Mease, supra, where all of the evidence supports a finding of deliberation and no reasonable juror could conclude otherwise.
SMART, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761869. Public record. Not legal advice.