State v. Arney

• Decision Date: 01 June 1987
• Docket Number: No. 14943,14943
• Citation: 731 S.W.2d 36
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Annew ARNEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 36

731 S.W.2d 36

STATE of Missouri, Plaintiff-Respondent, v. Annew ARNEY, Defendant-Appellant.

No. 14943.

Missouri Court of Appeals,

Southern District,

Division Two.

June 1, 1987.

Sidney T. Pearson, Pearson & Carter, St. James, for defendant-appellant.

William L. Webster, Atty. Gen., Jeffrey Philip Dix, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

A jury found the defendant guilty of three counts of assault, three counts of armed criminal action and one count of unlawful use of a weapon. As a prior offender, defendant was sentenced to life imprisonment on one count for the class A felony of assault and on each of the three armed criminal action counts; 15 years on two counts for the class B felony of assault; and 5 years on the class D felony of unlawful use of a weapon, all to be served concurrently. Defendant offers three points on appeal.

The following is a summary of the evidence viewed favorably to the verdict. State v. Esrock, 660 S.W.2d 222 (Mo.App.1983); State v. Cannady, 660 S.W.2d 33 (Mo.App.1983). On November 14, 1984, Sheriff John Giles of Crawford County went to the residence of Dorothy Arney and served an ex parte order of protection upon her former husband, the defendant. The next morning Dorothy Arney informed the sheriff the defendant would not leave the home. Mrs. Arney waited at the sheriff's office while Sheriff Giles, accompanied by Deputy Sheriff Leon Stephens, returned to the residence. They knocked on the door. The door held a large pane of glass with a curtain behind it. Defendant came to the door and pulled the curtain back but would not open the door. The sheriff informed defendant that he was violating the court order and would have to leave the premises. Defendant replied he would not leave and no one was going to make him leave. Thereupon he pointed a sawed-off shotgun at the sheriff and deputy. Defendant continued to point the shotgun at the officers as they backed off the porch and left.

Sheriff Giles proceeded to the prosecuting attorney's office. A complaint for displaying a dangerous and deadly weapon was prepared. A warrant was issued. With four highway patrolmen, two deputy sheriffs and the chief of police of Steelville, Sheriff Giles returned to the residence. The testimony of all eight of these law enforcement officers is consistent and corroborative with the exception of some minor details.

The law enforcement officers surrounded the residence. Sheriff Giles was on the east side of the house where the front door was located. He was standing at the side of a highway patrol car which was about 60 feet from the house. Using the public address system of the highway patrol car, Sheriff Giles informed defendant he had a felony arrest warrant and called for the defendant to come out. Some of the officers heard yelling from inside. Moments later a shotgun emerged from the front door and defendant shot at the patrol car shielding Sheriff Giles and Highway Patrolman Hannan. This was followed by a rifle shot aimed in the same direction. Sheriff Giles then ordered tear gas to be fired into the house by the highway patrolman on the north side of the house. Sergeant Wilson fired three canisters of tear gas, two of which went through a kitchen window into the house. Moments later Highway Patrolman Wilhoit saw a curtain move in another kitchen window and turned his head to warn other troopers. As he turned his head back he heard a rifle shot and felt the shot hit his arm. This was followed by another rifle shot. Highway Patrolmen Wilhoit and Sturdevant then returned fire, both using .12 gauge shotguns. They fired into the kitchen window where the rifle shots had come from and where Sturdevant had seen a rifle barrel. Highway Patrolman Wilhoit was pulled to safety. Moments later defendant crawled from the house out the front door on the east side of the house. The defendant and Wilhoit were taken to a hospital. The other officers searched the house and found a .12 gauge shotgun under a north side window and two .22 caliber rifles nearby. However, only one expended shotgun shell and one expended .22 shell were found.

Defendant admitted he was the only person in the house at the time of the shooting. He acknowledged hearing the sheriff's direction for him to come out. He testified, however, that the officers began shooting at him first and he shot back in fear of his own safety. He claimed he shot only the shotgun and never used the rifle and only shot out the front door one time. Defendant was twice asked if he had time after hearing the sheriff to come out of the house before the shooting began. Both times he answered, "Yes."

Defendant was shot through the eye during the fray. He suffered a stroke and a consequent speech impediment but was not otherwise brain damaged. He had been undergoing therapy and testified with the aid of a speech therapist.

The defendant's first contention is that the court committed reversible error in admitting evidence that two of his past convictions for assault involved shooting a police officer. The following is the background for that contention. The defendant's testimony on direct examination included the following.

Q. What happened after the Sheriff told you to come out of the house?

A. I said no.

Q. What happened after that?

A. He started shooting.

....

Q. How many shots did you hear?

A. Three or four before I fired.

....

Q. Let me understand, you heard three or four shots and then you returned fire. How many times did you shoot?

A. Once.

....

Q. Why did you fire?

A. Because I was scared.

INTERPRETER MULLEN: Because I was scared.

Q. Were you afraid for your life?

A. Yeah.

Q. Did you think you were going to be killed?

A. Yeah.

....

Q. And you shot at these officers that were out here didn't you?

A. No, I didn't see no officers. I just shot.

INTERPRETER MULLEN: No, I didn't see no officers. I just shot.

On cross-examination the state propounded the following question to the defendant.

Q. Mr. Arney, I won't ask you about all your previous convictions but I will ask you about two. Isn't it true, Mr. Arney, that on June 18th, 1962 in Madison County, Illinois, you pled guilty to the crime of aggravated assault for shooting a police officer?

The defendant objected in that the question improperly included the occupation of the person that was assaulted. A request for a mistrial was overruled. The question was emphasized by the fact it had to be posed several times before the defendant was able to answer it.

Then later, the state asked the defendant the following question:

Q. Now Mr. Arney, on December 29th, 1975 in Crawford County, Missouri, did you plead guilty or were found guilty of the crime of assault with a certain loaded rifle, on a police officer?

The defendant's objection upon the basis previously stated was overruled.

The state contends the evidence concerning the two convictions was admissible to impeach the defendant. The applicable rule is stated:

Section 491.050 RSMo 1978 permits the prosecutor, when the defendant testifies, to prove any prior convictions to affect the defendant's credibility. The prosecutor may elicit the general nature of each crime, State v. Hood, 313 S.W.2d 661, 663-64 (Mo.1958), as well as the places and dates of the occurrences and the resulting sentences. State v. Sullivan, 553 S.W.2d 510, 515 (Mo.App.1977). The prosecutor acts improperly if he goes beyond the fact of conviction to unduly emphasize it, State v. Williamson, 584 S.W.2d 628, 630 (Mo.App.1979), shows details so as to aggravate the conviction itself, id., or uses the conviction to suggest guilt of the offense presently charged. State v. Scott, 459 S.W.2d 321, 324 (Mo.1970).

State v. Sanders, 634 S.W.2d 525, 527 (Mo.App.1982) (emphasis in original). Similar expressions are found in State v. Scott, 459 S.W.2d 321 (Mo.1970); State v. Zeitvogel, 649 S.W.2d 945 (Mo.App.1983); State v. Woods, 637 S.W.2d 113 (Mo.App.1982); State v. Gentile, 599 S.W.2d 780 (Mo.App.1980); McCormick on Evidence § 43 (3rd ed. 1984). The limitation expressed in those cases has been held to bar evidence that a prior conviction involved a husband and wife, State v. Zeitvogel, supra; involved the use of a shotgun, State v. Henderson, 669 S.W.2d 573 (Mo.App.1984); was based upon a large quantity of drugs, State v. Silcox, 694 S.W.2d 755 (Mo.App.1985). Evidence of the details of a rape for which a defendant was convicted have also been held to be inadmissible for impeachment. State v. Sanders, supra.

In this case the occupation of the victims of the prior assaults was not an element of the offenses. Evidence of that detail was irrelevant for impeachment of the credibility of the defendant as a witness. It was improperly admitted for that purpose. See Gershman, Prosecutorial Misconduct, § 9.2(c)(2) (1986). However, that does not establish reversible error. Receiving admissible evidence is not error even though an improper reason may be assigned for its reception. State v. Sneed, 529 S.W.2d 38 (Mo.App.1975).

The evidence in question is proof of the commission of other criminal acts by the defendant. It is axiomatic that the state may not prove a defendant's convictions or criminal acts to establish his criminal propensities. State v. Graham, 641 S.W.2d 102 (Mo.1982). That axiom has received the following expression.

It is also established that although proof of commission of separate crimes is generally not admissible, such proof is admissible if it 'has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial....' 'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other; (5) the identity of the person...