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Saturday, March 7, 2009

MO- Woman from Nemo loses appeal for killing ex-boyfriend

1-13-2009 Missouri:

JEFFERSON CITY, Mo. -- The Missouri Supreme Court upheld the conviction of a woman from Hickory County who killed an ex-boyfriend at her home eight years ago. This is the second time that the state's highest court considered Jamie Avery's conviction.

Avery shot Bruce Paris at her home at Nemo, near Pomme de Terre Lake, in December 2000. Investigators said she gave more than one version of what happened but ultimately claimed she shot Paris in self-defense after he threatened to beat her. She said she didn't mean to kill him.

Avery argued she was afraid Paris might sexually assault her. She said Paris had made several harassing telephone calls to her before she finally agreed to meet with him. Several hours later, she ended up shooting him after she said he tried to come in her home after she tried to keep him out.

A jury convicted Avery in 2001 for second-degree murder and armed criminal action. She received two consecutive 30-year prison sentences in December 2000. Avery appealed.

In November 2003, the Supreme Court ordered a new trial. It said the jury should have been able to consider alternate verdicts of self-defense and voluntary manslaughter. The trial judge declined to read jury instructions that would have allowed either verdict.

At a second trial in Webster County, a jury convicted Avery of voluntary manslaughter and armed criminal action. A judge sentenced her to concurrent prison terms of 15 and 35 years. Avery appealed again.

On Tuesday, the Supreme Court upheld the second set of convictions. In a unanimous opinion, it said there was a great deal of evidence that Avery drank alcohol the day of the shooting. That evidence, the court said, supports the trial judge's decision to submit a voluntary intoxication instruction to the jury. That instruction was read to make sure the jury knew intoxication is not a reason to acquit someone of a criminal act.

"Avery argues that Instruction No. 6 was likely to confuse or mislead the jury into believing that she had admitted some wrongdoing and was attempting to escape liability based on voluntary intoxication. If an instruction is an accurate statement of law and supported by the evidence, however, there is no prejudice," the Supreme Court decision says.

"In this case, there was abundant evidence of Avery's alcohol consumption to support the trial court's determination that without being instructed as to the legal effect of that evidence, the jury might well have been left to guess as to what legal effect to give that evidence."

Also, the Supreme Court judges ruled, the trial judge didn't abuse his discretion by not letting the jury hear testimony that Paris was a registered sex offender.

"Avery argues such evidence was admissible to demonstrate whether the victim was the initial aggressor. There was no evidence offered at trial that Avery knew anything about the conviction," the opinion says.

The court said having that information wouldn't have helped the jury decide what happened that day in 2000. ..News Source.. by Gene Hartley, KY3 News


State of Missouri v. Jamie Avery
Hickory and Webster counties
Instructions and evidence
Listen to the oral argument:

Avery was represented during argument by Craig Johnston of the public defender's office in Columbia; and the state was represented by Shawn J. Mackelprang of the attorney general's office in Jefferson City.

Jamie Avery moved in with her boyfriend John Hamilton in September 2000 in Hickory County. Soon after moving in with Hamilton, Avery and Bruce Paris had a sexual encounter. Avery, Paris and a mutual friend subsequently made plans to go to Chicago, but Paris cancelled the plans after rekindling his relationship with an ex-girlfriend. In December 2000 – while Hamilton was out of town – Paris met up with Avery and their mutual friend, driving around in an automobile while consuming alcohol and marijuana. Eventually Paris and Avery went into Avery and Hamilton's home. Paris left the house at some point but returned after making a call on a pay telephone. Avery then shot Paris, called the sheriff's department and reported that she "shot an intruder." When the police arrived, Paris was dead in Avery's house. In June 2005, Avery was charged with first-degree murder. At trial, Avery wanted to admit evidence Paris was a registered sex offender to demonstrate that he was an initial aggressor. The trial court ruled the evidence was not admissible under State v. Gonzales, 153 S.W.3d 311 (Mo. banc 2005). She was convicted of the lesser-included offense of voluntary manslaughter and armed criminal action and was sentenced to concurrent prison sentences of 15 years and 35 years, respectively. Avery appeals.

Avery argues the trial court violated her rights to due process and a properly instructed jury because it gave the state's voluntary intoxication instruction over her objection. She contends that the instruction lacked evidentiary support she was intoxicated, that giving the instruction prejudiced her because it likely misled the jury to believe she admitted to some wrongdoing and was attempting to escape liability based on intoxication, and that the instruction negatively would affect her credibility – the key issue at trial. Avery asserts the trial court denied her rights to due process, to a fair trial and to present a defense. She argues the trial court abused its discretion in excluding evidence Paris was a registered sex offender because her theory of defense, presented through instructions for self-defense and defense of premises, was that she was defending herself from an attack by Paris. The fact that Paris was a registered sex offender, she contends, was relevant evidence to establish whether Paris was the aggressor and whether he was attempting to assault Avery sexually when he attacked her. Avery asserts the state "opened the door" to such evidence when one of its witnesses testified that Paris was a "good guy."

The state responds the trial court did not err in submitting the voluntary intoxication instruction because there was substantial evidence to support an inference that Avery was voluntarily intoxicated. It argues the trial court did not plainly err in refusing to admit evidence Paris was a registered sex offender because Avery’s offer of proof was insufficient and she made no argument to rebut the state's good character evidence about Paris at trial and, therefore, did not preserve the error for appeal. ..Source..

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