The following description of the murder was provided in the court's opinion:
Defendant and Jennifer Banks (Banks) were married in March 1998. In January 2004, the couple had three young children who were approximately five years, three years, and one month old. The couple began having marital problems. In the spring of 2004, Banks met Harris at a club and began secretly dating him.
On May 1, 2004, Banks left Defendant and began living with Harris. Earlier that day, Banks and Defendant had argued, and Defendant pushed Banks off some steps from the laundry room into the garage. As Defendant approached Banks, she bolted from the garage into her vehicle and drove away.
Harris and Banks lived together until July 13, 2004, when she moved back to Defendant's home in order to be with her children. After three days, however, Banks changed her mind and decided to leave again. On July 16, 2004, Banks did not come home after work. She called Defendant and said there was no way she could be with him. Banks also said that she was not planning to pursue a relationship with Harris and that she was going to find an apartment and take the children. Defendant told Banks that she was playing games with him, called her names and was very angry and upset.
Banks had called Defendant from a pay phone near Harris' apartment. Later, she and Harris were watching a movie in the living room when someone began pounding on the front door. Banks opened the door and saw Defendant standing in the doorway, holding a 9mm pistol. Banks recognized the pistol as one that Defendant had owned for the past five or six years. Harris was sitting unarmed in a chair. Defendant immediately lifted the gun, cocked it, and rushed at Harris. Defendant jumped on top of Harris and tried to put the gun to his head. The two men struggled, and a shot went off that missed Harris and entered a bedroom door. Both men fell to the floor and continued struggling. A second shot was fired as Defendant was on top of Harris. Defendant then stood up and fired two shots into Harris' head. When the gun jammed, Defendant cleared the chamber and fired several more shots into Harris' head.
Banks ran into the kitchen. Defendant followed, pointing the gun at her. Banks grabbed for the gun, but Defendant yanked it away and said it was not loaded. Defendant grabbed Banks with the other hand and began choking her and swearing at her. She eventually fell to the floor. Defendant stood over her and said, "Look at what you f_____ made me do. Look at what you f_____ made me do. I just killed him and I'm going to jail for the rest of my life."
When police arrived at the apartment, they found Harris' body lying on its right side in the living room area. Harris was wearing a black T-shirt tucked into a pair of blue-jean shorts that were zipped-up and secure around his waist. The television was playing, and the volume was at a normal level. There was also music coming from a small stereo located just above the television.
Defendant drove to a fast food restaurant and parked in the drive-through just as the business was closing. When an employee approached his car, Defendant said he had killed someone and asked that the police be called. Defendant then went inside the restaurant and left his three young children in the car. While waiting for police, Defendant told the employee that he couldn't take it anymore; his wife was cheating on him with another guy, and he killed him.
After Defendant was placed under arrest, he told police that he had gone to the apartment to confront his wife and Harris. Officers found a nylon gun holster on the floorboard in front of the driver's seat in Defendant's car. Defendant's handgun was found across the street from the apartment complex. The gun's magazine was empty, but there was a live round in the chamber. Police recovered eight shell casings and four bullets from the apartment. A Highway Patrol firearms examiner determined that those shell casing and bullets had been fired from Defendant's gun, and gunshot residue was present on Defendant's hands.
Harris' autopsy revealed that he had seven gunshot wounds to the left side of his head. All of the bullets' paths went from left to right and downward. The blood flow from the wounds indicated that Harris was on his right side when he was shot. Four spent bullets were recovered from Harris' body. They were located in his chest cavity, the right side of his neck, his mouth and his upper right arm. The bullets that ended up in Harris' neck and chest cavity had followed a downward angle through his body.(FN2) No entrance wounds were found on any part of Harris' body other than his head. No soot or stippling was found near the wounds, which indicated that the gun barrel was two feet or more from Harris' head when the shots were fired. Small abrasions were found on Harris' right shoulder, left hand and forearm, and his knees. The cause of death was determined to be brain damage from multiple gunshot wounds to the head. The medical examiner was unable to identify which of the gunshots were fatal; any one of them could have caused Harris' death.
Defendant's two points on appeal challenge the trial court's decision not to submit instructions on the lesser-included offenses of voluntary and involuntary manslaughter. In reviewing these points, the evidence must be viewed in a light most favorable to Defendant. State v. Newberry, 157 S.W.3d 387, 393 (Mo. App. 2005). So viewed, the following evidence was adduced at trial.
Defendant and Banks had talked about separating before he learned of her affair. Defendant wanted to preserve the marriage, and Banks agreed to go to marriage counseling. Defendant first learned of the affair between Banks and Harris in May 2004. He argued with Banks before she moved out, and she told Harris about the incident. He called Defendant and threatened to "kick [Defendant's] ass" if he saw him. Around that same time, Defendant received calls from other persons telling him "to watch [his] back." According to Defendant, Banks had said that Harris belonged to a "car gang" in Arizona, he used to deal crack cocaine there, and he had been charged with assault.
On the day of the shooting, Defendant and Banks went to their respective jobs in the morning. Defendant got off work around 4:30 p.m. and picked up the children from the babysitter. He had planned a romantic evening with Banks, so he went to the store and purchased food, flowers, candles, bath oils and lingerie. He then went home and began preparing dinner. He fed the children early and put them to bed by 8:00 p.m. He set the table with flowers, placed the bath oils in the bath, and put the lingerie on the bed along with a love note.
Defendant expected Banks to arrive home between 8:30 and 9:30 p.m. When she was not there by 10:00 p.m., he called her employer and learned that she had left work at 8:00 p.m. Defendant got the children out of bed, loaded them into the car and began driving around to various locations looking for Banks. After searching about an hour, Defendant returned home. He left the children in the car. There was an answering machine message from Banks saying she was not coming home that night. Defendant recognized the phone number on the caller ID as belonging to a pay phone located near Harris' apartment. About five minutes later, Banks called again. She told Defendant that she had a change of heart and would not be coming home that night.
Defendant got angry about the whole situation and was mad at Banks and Harris. Defendant became upset and started crying. He began throwing Banks' clothing on a flatbed trailer outside the front door. As he did so, he came across his 9mm pistol in the closet. Defendant decided to go to Harris' apartment and "get to the bottom of it." He took the gun for protection. Defendant got back into the car and drove to the apartment building. He parked on the back side of the building. As Defendant explained, "I was pretty sure there was going to be a conflict and I didn't want the kids to see any of that at all." Defendant put the gun behind his back in the waistband of his pants and walked to Harris' apartment.
Defendant testified that as he approached the apartment door, he heard moaning inside which he believed was the sound of Banks having sex. Defendant pounded on the door until Banks answered, wearing only a "man's T-shirt." Harris came out of the bedroom, and the two men rushed towards each other. Harris was unarmed. The two men began wrestling and fell to the ground. Shots were fired from Defendant's gun while they were on the floor. Defendant admitted that: (1) a live round would have to have been chambered before his pistol would fire; and (2) the trigger on the semi-automatic pistol would have to have been pulled each time a shot was fired. According to Defendant, no shots were fired after he stood up. He did not realize that he was holding the gun until Banks asked for it and grabbed his hand. Defendant kept the gun, walked out of the apartment and got in the car. As he drove away, he threw the gun out of the car window.
The court rejected Stidman's argument that the jury should have been given the option of finding Stidman guilty of the lesser crime of voluntary msnslaughter.
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