State of Missouri v. Kevin Bernard Strickland

Justice Went to Hell in Kansas City, Missouri in a criminal defense attorney unsuccessfully represented the Defendant charged with multiple counts of first-degree murder.



The Supreme Court of Missouri described that case against Strickland as follows:



Kevin Strickland was convicted by a jury of capital murder, § 565.001, RSMo 1978, and two counts of second degree murder, § 565.004, RSMo 1978. The state waived the death penalty after defendant was found guilty of capital murder. His punishment was fixed at life imprisonment without eligibility for probation or parole for fifty years for capital murder, § 565.008, RSMo 1978, and ten years on each count of second degree murder. Sentences and judgment were rendered accordingly with sentences to run concurrently.



Appellant charges error to: (1) sufficiency of evidence to convict of capital murder; (2) sufficiency of the indictment; (3) seizure of evidence; (4) state's closing argument; (5) use of MAI-CR instructions rather than MAI-CR 2d instructions; (6) in-court identification; (7) death penalty qualification of prospective jurors during voir dire; and (8) failure to charge second degree murder. Affirmed.



On April 25, 1978, defendant and three others shot and killed Larry Ingram, John Walker and Sherri Black, and wounded Cynthia Douglas. Cynthia Douglas related the events that took place that evening: Between 7:00 and 7:30 p. m., she, Larry Ingram, John Walker, and Sherri Black were sitting in the bedroom of Ingram's house watching television, drinking cognac, and smoking marijuana. There was a knock at the front door. Ingram picked up a pistol, went to the door, and admitted Vincent Bell and Kim Adkins. All three returned to the bedroom where Ingram and Bell sat down. Adkins stood in the doorway. Adkins then walked over, picked up the pistol, pulled another one and held it on Ingram, Black, Walker and Douglas. Ingram asked him what he wanted and he replied, "You know what I want." Bell got up and left the room; Ingram followed. Bell later returned with defendant and a person with a sack over his head. Adkins left the room and defendant held a shotgun on Black, Walker and Douglas. Somebody later threw Cynthia Douglas a rope and said, "Tie them up." As Cynthia tied John Walker, she started to glance around and defendant said, "Don't look at me. Don't look at me." Cynthia finished tying the other two; then someone tied Cynthia to Sherri Black. Cynthia did not look to see who it was. Cynthia heard the intruders ransacking the house and talking to Ingram in the other room. She heard a shot and then the intruders came into the bedroom and shot John Walker and Sherri Black. When they aimed at Cynthia and pulled the trigger, it clicked. A few minutes later they came back and shot Sherri Black with a shotgun; some of the pellets hit Cynthia in the leg. They then ran out of the house.



When the police arrived, Ingram, Walker and Black were found dead with their hands tied. It was later determined that Ingram and Walker died from gunshot (pistol) wounds to the head and Black died from gunshot and shotgun wounds to the head.



Appellant contends that the evidence was insufficient to support the conviction of capital murder because the state did not prove the elements of premeditation, deliberation or intent.



A killing through the use of a deadly weapon on a vital part of the body of the victim is sufficient to permit a finding of intent to kill. State v. Hammonds, 459 S.W.2d 365, 368 (Mo.1970); State v. Ward, 569 S.W.2d 341, 344 (Mo.App.1978). Premeditation is present when an accused thinks of his act for any length of time before acting. State v. Marston, 479 S.W.2d 481, 484 (Mo.1972). Deliberation is present when the act of killing is performed in a "cool and deliberate state of mind." State v. Jackson, 511 S.W.2d 771, 774 (Mo. 1974); State v. Marston, supra. Premeditation and deliberation may be inferred from the circumstances of the homicide in support of a finding of capital murder. State v. Lindsey, 507 S.W.2d 1, 4 (Mo. banc 1974); State v. Nelson, 514 S.W.2d 581, 582 (Mo. 1974); State v. Sturdivan, 497 S.W.2d 139, *395 142 (Mo.1973). Defendant need not personally have committed the killing; it is sufficient that he was present and participated in concert with others in the commission of the crime, or aided and assisted in its commission. State v. Butler, 310 S.W.2d 952, 957 (Mo.1958); Rowden v. State, 493 S.W.2d 699, 702 (Mo.App.1973).



In considering a contention that the state has failed to prove the elements of intent, premeditation and deliberation, the Court accepts as true all evidence and inferences tending to support the verdict and disregards all evidence and inferences to the contrary; the Court's function is not to substitute its judgment for that of the jury but to determine whether the evidence, considered in the light most favorable to the state is sufficient to support the verdict. State v. Reed, 453 S.W.2d 946, 949 (Mo. 1970).



So examined, there was sufficient evidence to support defendant's conviction of capital murder. Defendant held a shotgun on Walker, Black and Douglas thus evincing his affirmative participation. Ingram, the subject of the capital murder conviction, was killed as a result of a gunshot wound to the head. His hands were tied showing a lack of provocation for the shooting. The jury could reasonably infer from the evidence that defendant, acting alone or in concert with another "unlawfully, willfully, knowingly, deliberately, and with premeditation" killed Larry Ingram.



Appellant claims the indictment was fatally defective because it failed to allege that defendant had acted either with a common purpose or in offering aid or encouragement to others in the act of murder.



The test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution. State v. Tandy, 401 S.W.2d 409, 412-13 (Mo.1966); State v. Bott, 518 S.W.2d 726, 728 (Mo.App.1974). The indictment was framed in the language of § 565.001, RSMo 1978, and charged defendant with committing the offenses "either acting alone or knowingly in concert with another." It included sufficient facts to enable defendant to defend the case and to bar further prosecution.



Appellant charges error to the denial of his motion to suppress shotgun shells seized pursuant to a search warrant that did not identify the shells as items to be seized. He further argues that the shotgun shells could not be seized pursuant to a warrant in any event because § 542.271, RSMo 1978, describes with specificity the items that may be seized and unexpended shotgun shells are not among them.



The absence of the shells' description in the warrant does not require their suppression. An item discovered in a search authorized by a warrant may be seized if observed in plain view while the officer is in a place where he has a right to be, if discovery is inadvertent, and if it is apparent to the police that they have evidence before them. State v. Clark, 592 S.W.2d 709, 713-715 (Mo. banc 1979); State v. Collett, 542 S.W.2d 783, 786 (Mo. banc 1976); State v. Kelsey, 592 S.W.2d 509, 512-513 (Mo.App.1979).



In this case police officers had a warrant authorizing them to search defendant's residence for a .12 gauge shotgun, two diamond rings and a .357 caliber revolver. A "green" Remington .12 gauge shell casing had been found at the scene of the shooting. They did not, however, know of the existence or presence of the seized Remington shells prior to discovering them during their authorized search. Upon discovering the "green" Remington .12 gauge shells they properly seized them because of the connection between the shells and the crime for which the warrant had issued.



Appellant charges error to the overruling of his objection to closing argument of the prosecuting attorney on matters not in evidence. In final closing argument, the prosecutor stated to the jury:

When she [Cynthia Douglas] talks to that fellow Harris, she then tells the police, a lineup is given, and she picks him [defendant] out. *396 Defense counsel objected that there was no evidence that Cynthia Douglas picked defendant out of a lineup. The prosecutor responded, "Do you then deny that she was there?" The objection was overruled and the prosecutor continued, "After the lineup and after she sees the hair, she says, `That's the guy that did it, Nordy, Nordy, Kevin Strickland.'"



At the conclusion of the prosecutor's final closing argument, defense counsel renewed his objection and requested an additional thirty seconds to explain to the jury that the lineup did not occur until late the next afternoon rather than immediately following the murder. This request for relief was granted and counsel made his explanation to the jury.



It is improper for a prosecutor to argue matters not in evidence. State v. Cuckovich, 485 S.W.2d 16, 27 (Mo.1972); State v. White, 440 S.W.2d 457, 460 (Mo. 1969). Nevertheless, the ruling of the trial court does not constitute reversible error in this case.



Cynthia Douglas identified defendant at trial as one of the four intruders the night of the murders. She testified that she had known defendant for two or three years but did not recognize him that night because she had never seen him with hair on his face. The next day, after talking to Randy Harris, she called the police and gave them defendant's name as the person with the shotgun. A lineup was conducted and Cynthia identified defendant.



It was defendant's contention at trial that Cynthia could not have identified defendant as one of those present without Randy Harris having first supplied defendant's name. The allowance to defense counsel of additional time to inform the jury that the lineup did not occur until after Cynthia had spoken to Harris removed any possible prejudice to defendant on account of the prosecutor's reference to the lineup.



Appellant, Kevin Bernard Strickland, age 20, charges error to the overruling of his motion to suppress Cynthia Douglas' in-court identification of him. He argues that because no evidence of the pre-trial lineup was adduced at trial, no independent source existed upon which the trial court could rely, thus such in-court proceedings were impermissible and the proof of identification was inadequate.



Evidence of the pre-trial lineup was not presented despite the overruling of defendant's motion to suppress. Defendant contended in his motion that the lineup was unduly suggestive because the police had been supplied with defendant's name by Cynthia prior to the lineup, but he does not advance that contention on appeal as a basis for challenging the in-court identification. Therefore, defendant's argument goes only to the weight and credibility of Cynthia Douglas' in-court identification and not to its admissibility.



In any event, the lineup was not unduly suggestive. Although Cynthia knew defendant and gave his name to the police the next day, she was viewing the lineup to pick out the person present that night and not to pick out Kevin Strickland. Once she viewed defendant in the lineup she could have determined that he was not the person actually present that night. The ability of Cynthia Douglas to observe defendant the night of the murders while he held a shotgun on her and her friends, provided an adequate independent source to insure reliability, and removed any possible suggestiveness connected with the pre-trial lineup. State v. Carter, 572 S.W.2d 430, 435 (Mo. banc 1978); State v. Parker, 458 S.W.2d 241, 244 (Mo.1970); State v. Payne, 452 S.W.2d 805, 805 (Mo.1970).



Appellant contends that the instructions given to the jury regarding responsibility for the crimes of another should have been MAI-CR 2d instructions rather than the MAI-CR instructions actually given by the trial court.



Instructions in MAI-CR were designed to submit the law applicable to all offenses committed prior to January 1, 1979. State v. Lute, ___S.W.2d ___ (Mo. banc 1980). Defendant was convicted of an offense committed April 25, 1978; use of MAI-CR instructions was therefore proper.



*397 During voir dire of the jury panel the prosecution asked: "Is there anybody on this jury panel who could not sit as a juror where one of the options of punishment was death?" Appellant contends that the court's exclusion for cause of prospective jurors who answered affirmatively resulted in the systematic exclusion of persons opposed to capital punishment denying him a jury drawn from a cross-section of society, and a jury that was unfairly inclined to convict. He argues that persons were excluded who had simply evidenced a disinclination to impose the death penalty.



Defendant's contention has been addressed a number of times and found meritless where a sentence of death has not been imposed. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1969); Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1969); State v. Jackson, 506 S.W.2d 424 (Mo.1974); Ginnings v. State, 506 S.W.2d 422 (Mo.1974); State v. Bowens, 476 S.W.2d 495 (Mo.1972); State v. Haynes, 482 S.W.2d 444 (Mo.1972). The argument that the exclusion of jurors opposed to capital punishment substantially increases the risk of conviction has been continually rejected because the evidence offered in support was considered too tentative and fragmentary. Witherspoon v. Illinois, supra, 391 U.S. at 517, 88 S. Ct. at 1774; Bumper v. North Carolina, supra, 391 U.S. at 545, 88 S. Ct. at 1790; State v. Bowens, supra at 497; State v. Quinn, 461 S.W.2d 812, 814-15 (Mo.1971). Defendant advances no new evidence to warrant a different conclusion.



In State v. Swindell, 271 S.W.2d 533 (Mo. 1954), cited by appellant, the trial court disallowed questioning which would elicit individual feelings the prospective jurors might have regarding the death penalty after the prosecutor announced during voir dire his intention not to seek the death penalty. That case has no bearing on the present case where the death penalty was not waived by the prosecution until the verdict finding defendant guilty had been returned.



Defendant alleges pro se that:

[He] is entitled to discharge on the convictions for second degree murder because it was plain error effecting [sic] the substantial rights of the appellant to charge capital murder, offer proof of 1st degree murder and then receive a verdict on second degree murder, such that trial and conviction on a charge not made violates the rights of the appellant under the United States Constitution, the 5th, 6th and 14th amendments.



Suffice to say, the state made a submissible case of capital murder. The second degree murder convictions were proper under the charges of capital murder because second degree murder is a lesser included offense of capital murder. State v. Amos, 553 S.W.2d 700, 706 (Mo. banc 1977). There is no first degree murder conviction to consider.



Wikipedia contains the following report about the case.



Kevin Bernard Strickland (born June 7, 1959) is an African American man who was wrongfully convicted by an all-white jury[2] in 1979 of killing three people in Kansas City, Missouri. No physical evidence linked him to the scene of the crime and the only alleged witness later recanted her testimony that Strickland was involved, stating that she was coerced by police.[3][4] Strickland was given a life sentence.[5] In 2021, he garnered national attention after former prosecutors in his case said that he was innocent and called for his release.[3]



Two black men who pled guilty to the murders have said Strickland was not involved, and a fingerprint from the shotgun used in the murders belonged to someone else.[3][4] Cynthia Douglas, the sole eyewitness to the crime, said detectives pressured her into naming Strickland as a perpetrator. She attempted several times to recant her testimony before her death in 2015.[4]



Numerous legal and political figures called for Strickland's exoneration. In June 2021, the Supreme Court of Missouri denied a petition to have him released.[5] The Governor of Missouri Mike Parson refused to pardon him, saying he did not see his case as a "priority" and was not certain of his innocence.[6][7][8] The Missouri Attorney General fought in court to keep him in prison, saying he believed he was guilty.[9]



On November 23, 2021, Judge James Welsh overturned Strickland's conviction "since it was not based on physical evidence but on eye-witness testimony ..., who later recanted her account", and Strickland was released on the same day. He was exonerated after more than 42 years in prison, "making his case the longest confirmed wrongful-conviction case in Missouri's history".[10][11]

Crime and trials



On April 25, 1978, in Kansas City, Missouri, three people were killed when a group of assailants ransacked a house. The victims were 22-year-old Sherrie Black, 21-year-old Larry Ingram, and 20-year-old John Walker.[4] Another woman, Cynthia Douglas, Ingram's girlfriend, was shot in the leg non-fatally; she pretended to be dead until the attackers left, at which point, she crawled out of the house.[4][12] All of the victims were tied up and then shot.[12] Kevin Strickland, who was then 18 years old, said at the time he was watching television and talking on the phone, and that the next morning police began accusing him of the murders.[13]



Two suspects, Kilm Adkins and Vincent Bell, were later arrested. Bell was a childhood friend of Strickland's, and lived at a house nearby. Police found a fingerprint belonging to Strickland on Bell's car; Strickland says this was because he had driven the car before, but the last time he had seen Adkins and Bell was at 5 or 6 p.m. on the night of the murders.[13] A fingerprint from the shotgun used in the murders belonged to someone other than Strickland who has not yet been identified.[4] Douglas, the only eyewitness, first stated she could not identify other perpetrators (two other guys) but Adkins and Bell. Later, when police arrested Strickland,[14] she picked out him in a police lineup.[15][13][16] Douglas later said she was pressured into naming him as one of the perpetrators by detectives on the case, and until her death in 2015 attempted to have her testimony recanted.[4] In 2009, she emailed the Midwest Innocence Project, saying, "I am seeking info on how to help someone that was wrongfully accused. I was the only eyewitness and things were not clear back then, but now I know more and would like to help this person if I can."[13] Douglas said police told her, "Just pick Strickland out of the lineup and we'll be done, it will all go away, you can go on and you don't have to worry about these guys no more."[12] Adkins and Bell confessed to the murders, but said Strickland was not a participant.[13]



Strickland's first trial ended in a hung jury, with the only black juror refusing to find him guilty. According to Strickland, after the trial, the prosecutor approached his lawyer and said "I'll make sure this doesn't happen next time."[13] Strickland's current lawyer, Tricia Rojo Bushnell of the Midwest Innocence Project, said the prosecutor used each of his peremptory challenges to strike black jurors, resulting in the next trial having an all-white jury.[13]



Strickland was convicted in 1979, one year after being arrested, and sentenced to life imprisonment without the chance of parole for 50 years.[5][13] Adkins and Bell later cut plea bargains, pled guilty and were sentenced to 20 years, each of them serving less than 10 years. Others were suspected but not charged.[11][16] Strickland tried to appeal in 1980, but it was dismissed by Supreme Court of Missouri.[17]

Calls for release



Strickland was the subject of an investigation by The Kansas City Star in September 2020, which prompted prosecutors to review the case.[18][19] On May 10, 2021, Jackson County prosecutor Jean Peters Baker published a letter saying she believed he was innocent and should be released from prison.[4] Former prosecutors in Strickland's case have said they think he is innocent as well, as have federal prosecutors for the United States District Court for the Western District of Missouri.[4] Mayor of Kansas City Quinton Lucas and more than a dozen state lawmakers, including Andrew McDaniel, the Republican chair to the Missouri House of Representatives' committee overseeing prisons, have sought to have him released.[4][13]



The Supreme Court of Missouri denied a petition to release Strickland in June 2021.[5] In August 2021, Governor of Missouri Mike Parson refused to pardon him, having previously said that Strickland's case was not a "priority" and that he was not sure of Strickland's innocence.[6][20][8] The editorial board of The Washington Post, as well as some prominent Democratic Party figures, negatively contrasted Parson's decision not to pardon Strickland with his choice to pardon Patricia and Mark McCloskey, the couple involved in the June 2020 brandishing weapons against protesters controversy.[8][21] Assistant attorney general of Missouri, Andrew Clarke, said the attorney general's office believes Strickland to be guilty and thinks he should remain in prison, saying that Strickland had "worked to evade responsibility."[9] In August 2021, the attorney general's office issued Baker a subpoena requiring her to turn over any communication with third parties regarding Strickland. Baker termed that action as harassment.[22]

Hearing leading to exoneration



In November 2021, Baker coordinated a three-day hearing, to present the case for the reversal of Strickland's verdicts.[23] She said, "One of the reasons I'm proud of this system, and one of the reasons I know that it is one of the best systems in the world even when we stand amid a terrible mistake, is because we have built into our system an ability to correct wrongs." "I now trust in you to return just a fraction of what we've all lost, what Mr. Strickland lost, by bringing him home."[23] The last of a dozen witnesses, former Missouri Supreme Court Chief Justice Edward D. Robertson Jr., argued that the preserved subsequent testimony and frequent recantations of her pre-trial interviews and trial testimony by Cynthia Douglas, upon whose word the entire original persuasive evidence of guilt rested, also constituted "the entire case" for the reversals.[23]



Judge James Welsh wrote on November 23, 2021, after Strickland had spent more than 42 years in prison: "Under these unique circumstances, the Court's confidence in Strickland's conviction is so undermined that it cannot stand, and the judgment of conviction must be set aside. The State of Missouri shall immediately discharge Kevin Bernard Strickland from its custody."[11]

Personal life



Kevin Strickland was born on June 7, 1959[1] and is the father of one daughter.[13] Strickland uses a wheelchair and said that he had "experienced a couple of heart attacks... I got high blood pressure. My ability to stand is diminished."[13] His father died in 2011.[13] His mother, Rosetta Thornton died on August 21, 2021, mere months before his exoneration.[24] Prior to his exoneration, Strickland said upon his release that he wanted to see the ocean.[13]

Compensation



Though Kevin Strickland served the longest prison time wrongfully convicted in Missouri's history, he did not qualify for compensation from the state, because the law allows it only if an exoneration is based on DNA evidence. However, the Midwest Innocence Project initiated a fundraising campaign for him through GoFundMe in June 2021, which raised more than $200,000 by the time of his release.[25] If his case qualified for state compensation, the amount could be much more; in other states compensation of over $20 million was paid in similar cases.[26][27] In few days after his release, donations multiplied and the raised amount went over $1 million by more than 14,000 people.[28]

Defendant was found guilty and was sentenced to death.



The Missouri Supreme Court affirmed.



Defendant was exonerated in November 2021.