State v. Giffin, 62775
| Decision Date | 12 October 1982 |
| Docket Number | No. 62775,No. 2,62775,2 |
| Citation | 640 S.W.2d 128 |
| Parties | STATE of Missouri, Respondent, v. Burl Delbert GIFFIN, Sr., Appellant |
| Court | Missouri Supreme Court |
John E. Price, Daniel P. Wade, Springfield, for appellant.
John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, in a jury-waived trial, was found guilty of second degree murder and sentenced to life imprisonment.
From the evidence the following could reasonably be found. On the afternoon of May 11, 1979, appellant, his wife and daughter, and a friend arrived at Roy and Esther's Tavern in Ava, Missouri. While at the bar, appellant got into a fight with one of the patrons, Boyd Conrad. Appellant called Conrad a "bastard" and a "bull-headed son-of-a-bitch" at which point Conrad hit appellant knocking him to the floor. Appellant got up, and as he went out the door he said:
Approximately one hour later, appellant walked toward the tavern carrying a shotgun. Appellant did something to the gun and then flung open the door to the tavern. Once inside he hesitated momentarily, and then shot and fatally injured Doug Robinson who stood up as appellant came in the door. Appellant turned and ran out the door and called to his wife and daughter to "run." The three of them got into a white Volkswagon and drove away.
Two persons who saw appellant run out of the tavern ran to the police station and told a police officer, who had heard the shot, to stop the man in the white Volkswagon. Appellant drove back onto the Ava square and two officers pursued him. Appellant pulled over and stopped, and was ordered out of the car. One officer read the Miranda warning to appellant and he was then placed under arrest.
As his initial point on appeal, appellant contends that for three separate reasons the evidence was insufficient to convict him of second degree murder. He asserts that (1) "the evidence established that [he] was intoxicated at the time of the offense to such an extent that he was unable to form an intent to kill * * * or to premeditate his actions;" (2) the killing was committed in a heat of passion occasioned by his altercation with Boyd Conrad; and (3) the evidence established that the killing was accidental in that appellant intended to shoot into the wall but the deceased walked into the line of fire.
Rule 27.01(b) provides that the findings of the court shall have the force and effect of a jury. Therefore, appellate review is as though a verdict of guilty has been returned by a jury. If there is substantial evidence to support the findings of the trial court, its judgment is to be affirmed. State v. Ruff, 618 S.W.2d 722 (Mo.App.1981); State v. Ore, 567 S.W.2d 691 (Mo.App.1978). In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, the Court accepts as true all evidence in the record tending to prove the defendant's guilt together with inferences favorable to the State that can be reasonably drawn therefrom, and the court disregards all contrary evidence and inferences. State v. Morgan, 592 S.W.2d 796 (Mo. banc 1980).
Appellant contends he was too intoxicated to form the intent to kill or to premeditate his actions. Voluntary intoxication, § 562.076, RSMo 1978, affects criminal liability where the intoxication is of such a degree that it negatives an essential mental state required for guilt of the particular offense. Appellant's mental state can be determined from his testimony, from his conduct before the act, from the act itself, and from his subsequent conduct. State v. Runyon, 619 S.W.2d 955 (Mo.App.1981). Appellant testified he could not recall the shooting but this "is not conclusive that in his numbed condition he did not form an intent to kill." State v. Gullett, 606 S.W.2d 796 (Mo.App.1980). However, numerous state witnesses testified that appellant did not appear to be intoxicated. They based their opinion on their observation of his driving, his speech and his physical movements. There was testimony that he appeared to be drunk, but conflicts in evidence and the determination of the credibility and the weight to be given to testimony are within the province of the trier of fact, in this case an experienced trial judge, and are not cognizable on appeal. State v. Hager, 577 S.W.2d 188 (Mo.App.1979).
This same reasoning is dispositive of appellant's contentions that the shooting was done in a heat of passion occasioned by a provocation and that the shooting was accidental. In criminal cases this Court does not weigh the evidence on appellate review. State v. Ore, 567 S.W.2d 691 (Mo.App.1978). We note that while appellant contends he was too intoxicated to form an intent to kill, he inconsistently contends that he did form an intent to shoot into the wall. The facts and circumstances clearly authorize a finding, which the finder of fact did make, that the shooting was not done in a heat of passion so as not to be done with the required intent, and that the shooting of the victim was not the result of an accident.
In his second point, appellant contends that the court erred in admitting into evidence the shotgun, shotgun shells, and incriminating statements made by him to the police. The main thrust of his argument is that the uncorroborated statements of informants of unknown reliability who lacked personal knowledge did not provide the police with probable cause to arrest appellant and search his automobile.
Probable cause to arrest exists when the facts and circumstances within the knowledge of the arresting officers, and of which they have reasonably trustworthy information, are sufficient to warrant a belief by a person of reasonable caution that the person to be arrested has committed the crime for which he is being arrested. State v. Olds, 603 S.W.2d 501 (Mo. banc 1980); State v. Reynolds, 619 S.W.2d 741 (Mo.1981). Three witnesses saw appellant enter the tavern carrying a shotgun. A shot was then heard and appellant ran out of the tavern yelling to his wife and daughter to "run." One witness ran to the tavern and asked if the police had been summoned and was asked to get them. The other witness ascertained what car appellant got into then ran to tell the police. At the police station both witnesses indicated the police should stop the man in the white car. Both police officers had heard the shot as they stood out on the steps of the police station. The police pursued appellant in the white car. Once he pulled over, he was ordered out of the car and a shotgun was removed from the back seat and two shotgun shells were found in his pocket.
The test is whether the arresting officer had "reasonable ground to suspect that the person arrested has committed a felony." State v. Gant, 490 S.W.2d 46 (Mo.1973); State v. Caffey, 436 S.W.2d 1 (Mo.1969...
To continue reading
Request your trial
-
State v. McMillin
...of death, or to corroborate or refute testimony). The fact that a gruesome photograph adds nothing to the other evidence, State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982), State v. Engleman, 634 S.W.2d 466, 475 (Mo.1982), or that the defendant offers to stipulate to the evidence depicted in t......
-
State v. Blair, 66352
...the facts, and reasonable inferences arising therefrom, are to be stated favorably to the order challenged on appeal. See State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). Third is the case law-supported rule that the reviewing court is free to disregard contrary evidence and inferences, and ......
-
State v. Hurt, 13156
...and each photograph was "not inadmissible because by accurately portraying a wound it tends to become inflammatory." State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982). The defendant's next points concern an aspect of the trial that arose from the direct and cross-examination of the defendant. ......
-
State v. Sidebottom
...by a person of reasonable caution that the person to be arrested has committed the crime for which he is being arrested." State v. Giffin, 640 S.W.2d 128, 131 (Mo.1982). In the instant case, appellant's grandmother was murdered the day before the "arrest." The police had a report by appella......