State v. Adams, No. 16902
| Decision Date | 09 April 1991 |
| Docket Number | No. 16902 |
| Citation | 808 S.W.2d 925 |
| Parties | STATE of Missouri, Respondent, v. Danny Lee ADAMS, Appellant. |
| Court | Missouri Court of Appeals |
Application to Transfer Denied June 11, 1991.
James J. Knappenberger, Shaw, Howlett & Knappenberger, Clayton, for appellant.
William L. Webster, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant Danny Lee Adams, tried as a prior offender, § 558.016.2, 1 and persistent offender, § 558.016.3, was found guilty by a jury of the class A felony of assault in the first degree, § 565.050, and sentenced by the trial court to 20 years' imprisonment.
Appellant presents six assignments of error. They require a synopsis of the evidence.
The victim was Steven Ray Nimon, date of birth February 8, 1985.
The State's evidence established that "at the very end of July," 1988, Steven's mother, Ellen Suzette ("Suzy") Huntley, began living with appellant (then age 28) in the home of appellant's mother, Lois Adams. Steven did not live with Suzy and appellant "at first." Instead, Steven resided with Suzy's mother and stepfather. However, by September 9, 1988, Steven was evidently living in the Adams household.
That evening (Friday, September 9) Suzy and appellant, accompanied by Steven, visited Rick and Theresa Johnston at the latters' home. Suzy testified appellant drank "ten or eleven" beers, smoked marijuana, and took "PCP pills."
Suzy, Steven and appellant returned to Lois Adams' house "around midnight." According to Suzy, appellant "was pretty well drunk, intoxicated." Additionally, appellant was angry, "mostly" at Steven.
Suzy testified she went into the bathroom, and as she came out she heard Steven crying. She entered the living room and saw Steven on the couch. Appellant was standing beside the couch. Suzy's testimony:
"I asked Danny what was wrong.... [H]e told me to shut up. Steven got up off the couch and was crying and Danny picked him up by the throat choking him and then threw him back on the couch.
Q. For how long did he choke him?
A. He picked him up, maybe five, six seconds, and then threw him on the couch.... I could see Steven kind of, you know, gasping.
Q. What did you do at this time?
A. I went over towards Danny. I was going to get Steven and Danny told me to shut up and leave him alone. And he slapped me and I kind of fell back into the chair.
Q. What did he do immediately after choking the child? What did he do to the child?
A. He choked him, picked him up off the ground and choked him and threw him on the couch a couple of times, two times. And then Steven got up and was on the floor and Danny kicked him and knocked him--
....
Q. How many times did he kick him?
A. All through the time he was doing it I'd say four or five times.
Q. Where at on the child's body did he kick him?
A. Back of the legs, the body area, the butt.
Q. What did he do to you?
A. Well I tried to stop Danny.... I tried to go forward and stop him and he turned around and he back handed me on this left side and knocked me down and I fell back on my bottom.... He just kept telling me to shut up, shut up. I kept trying to maybe talk him out of not doing it and he come up and choked me."
According to Suzy, Lois Adams entered the living room during the melee and implored appellant to leave Steven alone. Suzy recalled:
"Danny hollered at her and said you're only making it worse saying this. You're only making it worse, and he forcibly grabbed Steven away from her. She got him twice and Danny got him back.
Q. What other things did the defendant Danny Adams say during all this?
A. ... he was fighting at me and at his mother and Steven, because his mother was trying to stop him from doing it. We were both trying to talk to him and stop him from doing it. And he was telling us that he had a gun and he was going to shoot us all. He keeps telling us we was all going to die tonight. And at one time he had knocked Steven on the floor and he asked Steven he says your mommy is going to die tonight. And he said are you ready to die? You're going to die, and Steven said yes."
Suzy testified appellant "finally just passed out" on the living room floor. He awoke intermittently during the next several hours but engaged in no further violence.
At daylight, appellant went into the bedroom and laid on the bed. Suzy then fled with Steven to a neighbor's house. The neighbor telephoned the residence of Suzy's mother. Suzy's stepfather picked up Suzy and Steven.
Upon arriving at her mother's home, Suzy called the police. Later that morning (Saturday, September 10) Suzy took Steven to a hospital where he was examined by an emergency room physician.
The physician testified Steven had three large hematomas--"collections of blood"--beneath the scalp. The skin surface was bruised in those areas. Steven's nose was swollen and there was dried blood in the nostrils. There were small ruptured blood vessels in the whites of the eyes and around the eyelid and the maxillary area of the face. Inside Steven's mouth the gum was bruised from the teeth on both sides, and "the lip had been torn from the gum." Steven had "a large circular bruise about the neck, which was totally circumferential." This was consistent with the neck being held tightly.
Additionally, bruising appeared on the front and back of Steven's chest wall, his upper arms, and both ears. There was also a large bruise on a thigh and in the area of his penis. The physician's testimony continued:
"Q. Based upon reasonable medical certainty, can you tell us whether or not these injuries were serious physical injuries?
....
A. These are injuries that in the medical profession are considered life threatening, especially in a three year old because blows to the ear and the temporal regions of the scalp are dangerous to the child in the area of causing a cerebral bleed, temporal basaler [sic] type fractures which bleed easily.
Also, the amount of force about the neck could have caused ... would commonly cause not enough blood supply to the brain at the same time it would cause this type of bruising and injury."
Appellant did not testify but did present his mother, Lois, as a defense witness. Lois testified she entered the living room after hearing "a racket." She saw Suzy "joshing [Steven] up and down on the floor." Lois told Suzy to leave Steven alone. That made Suzy mad. Lois narrated: Lois described Suzy as "doped up and half drunk." According to Lois, appellant tried unsuccessfully to get Suzy to leave Steven alone. Finally, appellant "back handed her." Lois testified Suzy then made Steven stand in a corner but when he continued crying she grabbed him again. Appellant tried to pull her off and "back slapped her." Suzy began scratching and tore appellant's shirt. Suzy ultimately went to sleep on the floor. The next morning she took Steven and departed.
Appellant's first point relied on avers the trial court wrongly denied a motion by appellant for a continuance. The point has the following background.
On October 2, 1989, the case was set for jury trial February 6, 1990. A jury panel was summoned and appeared on the appointed date. Appellant appeared in person with his retained lawyer. 2 The prosecutor announced ready for trial. The trial court inquired, "Is the defendant in Court and ready?"
Appellant's lawyer replied, "In Court and ready, your Honor."
Voir dire was then conducted, after which the trial court declared a recess. During the recess appellant's lawyer told the trial court he had been trying to subpoena Rick and Theresa Johnston who "previously testified favorably for [appellant]." Appellant's lawyer stated his associate was unsuccessful in subpoenaing the Johnstons the day before trial. Consequently, said the lawyer, "[T]here may be a problem with them coming, for whatever reason." He added:
The trial court denied the request.
Appellant maintains the denial deprived him of his constitutional right to present witnesses in his behalf.
Rule 24.09 3 states:
"An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the application for continuance may be made orally."
The prosecutor did not consent that appellant's application for continuance be made orally. Hence, appellant's failure to request the continuance by written motion accompanied by the required affidavit is a sufficient basis for us to uphold the trial court's ruling. State v. Harris, 781 S.W.2d 137, 144-45 (Mo.App.1989); State v. Tettamble, 746 S.W.2d 433, 438-39 (Mo.App.1988); State v. Merrick, 677 S.W.2d 339, 342 n. 2 (Mo.App.1984); State v. Diamond, 647 S.W.2d 806, 808 (Mo.App.1982).
Furthermore, as noted above, the request came after appellant's lawyer had announced ready for trial and the parties had conducted voir dire.
In State v. Boykins, 399 S.W.2d 70 (Mo.1966), after the trial proceedings had commenced but before the jury was sworn, the accused's lawyer orally requested a continuance to obtain the attendance of two alleged alibi witnesses. Upholding the trial court's denial of the request, the Supreme Court of Missouri noted that such request had not come until the jury was in the box ready to try the case and the judge was directing the trial to proceed. Id. at 74. The Supreme Court said, "[The accused] should not wait until the very minute of trial to determine if a witness he contends to be material to his defense is available." Id.
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