State v. Bell

• Court: Missouri Court of Appeals
• Writing for the Court: MAUS; FLANIGAN, P.J., and HOGAN
• Citation: State v. Bell, 798 S.W.2d 481 (Mo. App. 1990)
• Decision Date: 23 October 1990
• Docket Number: Nos. 15786,16210,s. 15786
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Barry S. BELL, Defendant-Appellant. Barry S. BELL, Movant-Appellant, v. STATE of Missouri, Respondent.

Page 481

798 S.W.2d 481

STATE of Missouri, Plaintiff-Respondent, v. Barry S. BELL, Defendant-Appellant.

Barry S. BELL, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 15786, 16210.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 23, 1990.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent-respondent.

C. Clifford Schwartz, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant-movant-appellant.

MAUS, Judge.

Defendant Barry S. Bell was in the Circuit Court of Iron County convicted of assault in the second degree and sentenced to imprisonment for five years. His motion under Rule 29.15 attacking that conviction and sentence was denied by the Circuit Court of Iron County. Defendant appealed his conviction and sentence and appealed the denial of his motion to this court. Heretofore, this court affirmed the conviction and denial. The defendant's application for transfer of the two appeals to the Supreme Court was sustained. Thereafter, on October 9, 1990, the Supreme Court ordered that said appeals be retransferred to the Missouri Court of Appeals--Southern District. With the addition of this paragraph, the original opinion of this court is readopted. That opinion is as follows.

Count I of a second amended information charged the defendant committed the offense of assault in the first degree on August 27, 1986, by knowingly causing serious physical injury to Cecil Wayne Gilmore (Gilmore) by stabbing him in the chest. Count II charged the defendant committed murder in the second degree "in that on or about August 27, 1986, ... the defendant with the purpose of causing serious physical injury to Ralph Wayne Rodgers [Rodgers] caused the death of [Rodgers] by stabbing him".

A jury found the defendant guilty of assault in the second degree (submitted by MAI-CR 3d 319.04 as a lesser included offense) under Count I. The jury could not reach a verdict upon Count II and a mistrial was declared upon that count. Upon Count I, the court sentenced the defendant as a prior offender, § 558.016, to imprisonment for five years. The defendant subsequently pled guilty to voluntary manslaughter under Count II. The defendant appeals from his conviction and sentence upon Count I. The defendant also filed a motion for relief under Rule 29.15. Following an evidentiary hearing, the motion was denied. He also appeals from that denial. The appeals have been consolidated but will be considered separately.

No. 15786--Direct Appeal

There is no dispute concerning many of the fundamental facts presented to the jury. Those facts include the following. The incident from which charges arose occurred at the rural home of defendant. The defendant was 33 years old. He had suffered a head injury in 1980 and, as a result, his mental abilities were impaired. Sherry Will (Will) was his girl friend for two years and lived with defendant off and on. She was 17 years old.

The deceased Rodgers was 30 years old. He had been married and had children, but was divorced. Laura Golliday (Golliday) was his girl friend. She was 15 years old. While their living arrangements are not clear, it is a reasonable inference Rodgers and Golliday lived together.

Golliday and Will were friends. They attended school together. There was a conflict in testimony concerning the degree of friendship between the two couples. The defendant and Will had spent one night at the residence of Rodgers and Golliday. Rodgers and Golliday were visitors to defendant's house and had spent the night there. The two couples had in the past been fishing together.

Gilmore was a cousin of Rodgers. Rodgers, Gilmore and Golliday spent the evening in question at a "baitshop". The men played pool and drank beer. Each consumed about 12 beers. Golliday spent the evening talking to friends. About midnight at Rodgers' suggestion, the group went to the defendant's house. They took a 12-pack of beer.

Golliday, Gilmore and Will testified. They are in substantial agreement concerning the following outline of the ensuing events. The group entered and for a short time stayed in the living room. The men, the defendant, Rodgers and Gilmore, then went to a room to which the defendant had moved his pool table. The men apparently worked on or discussed working on the pool table. Golliday and Will stayed in the living room talking. In about 15 minutes, the men returned. Rodgers and Will engaged in "horseplay", including a pillow fight. Will briefly left the room and returned with a shotgun. Rodgers took the shotgun from her and the shotgun fired into the floor. The defendant put the shotgun away.

The visiting group decided to leave. The defendant and Will accompanied them to the porch. Golliday and Gilmore testified Gilmore did not go with the rest of the group to the porch, but came after the defendant had stabbed Rodgers. Will testified Gilmore accompanied the group. On the porch there was a struggle during which the defendant first stabbed Rodgers and then Gilmore. Gilmore ran from the porch. At Will's behest, the defendant went into the house. Gilmore returned. He and the two women got Rodgers in the car. Golliday drove to the hospital where Rodgers died from his wounds.

In general, Golliday portrayed the groups' visit to the defendant's house as a friendly party. They knocked and were welcomed. When the men returned from the pool room, Rodgers got a pillow and lay on the floor. The defendant and Will asked them to stay all night. Golliday declined as they had to get to the Gilmore home. Rodgers and Will engaged in a good natured pillow fight and verbal jabbing. For some reason Will's mood changed. She appeared with the shotgun and said she was going to blow some heads off. Rodgers took the shotgun and it accidentally fired. Golliday and Rodgers went to the porch to leave. Gilmore inquired about the bathroom and did not accompany them. Will followed Golliday and Rodgers, calling Rodgers names and challenging him. She raised her hand as if to hit Rodgers. Rodgers grabbed her arm and the defendant then stabbed him in the temple. Rodgers fell and the defendant stabbed him again in the temple. At this point, Gilmore came onto the porch. He grabbed the defendant in an effort to pull him from Rodgers. The defendant then stabbed Gilmore three or four times. One wound was to the chest and just missed the heart. After they got Rodgers in the car, the defendant reappeared on the porch with a gun.

On the other hand, Will characterized the visit as an obnoxious, drunken intrusion. The group entered without knocking. They demanded "a party". The group was asked to leave. Rodgers challenged her to fight. It was when they did not leave she got the shotgun. Rodgers took it and purposely fired it into the floor. When she went onto the porch, Rodgers grabbed her and was banging her against the house when the defendant grabbed Rodgers to pull him off Will. Gilmore did not go to the bathroom, but had been standing there watching. When the defendant pulled Rodgers from Will, Rodgers and Gilmore beat the defendant. Gilmore said he was going to kill the defendant. It was then the defendant stabbed Rodgers and Gilmore. Will characterized the defendant's actions as "Barry just had his knife out and was just poking it at them trying to get them off of him."

In general, Gilmore confirmed the version related by Golliday. He did believe Rodgers had intentionally fired the shotgun. When the visitors decided to leave, he started to the bathroom. He had reached the bathroom door when he heard a scream. He ran to the porch and saw the defendant over Rodgers. Gilmore said nothing. The defendant turned on him and stabbed him three or four times.

In addition to Will, the defendant presented Dr. Parwatikar, M.D., a psychiatrist whose qualifications were admitted. He had examined the defendant. He found the defendant had "mixed organic syndrome" or, in laymen's language, brain damage. He also found the defendant to be antisocial. In answer to a hypothetical question, he said an individual like the defendant under hypothesized circumstances such as the incident in question, would "have difficulty in forming a purpose", that he acted impulsively. He did, however, know right from wrong and was aware of his actions.

The defendant's first point is that the conviction must be set aside because

"[t]he trial court erred in its handling of the jury after their retirement at 4:40 p.m., forcing them to deliberate until 3:20 a.m., overruling defendant's various motions for mistrial. Trial court's errors include ignoring loud laughter and noise from the jury; delivering a 'hammer' instruction after midnight; calling the jury in; thereafter calling in an individual juror and communicating with him; ignoring the information that the jury was deadlocked; calling in a jury a second time under the guise of MAI-CR3rd 312.02; and calling the jury back a third time, then sending them back to deliberate"

and those actions resulted in a coerced verdict. It strains judicial tolerance to recognize this as stating "briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...." Rule 30.06(d). However, giving the defendant the benefit of the doubt, it will be considered.

At first blush the point appears that it could have merit. However, careful consideration of each of the disjointed contentions establishes that it does not.

"The length of time which a jury is allowed to deliberate and the determination of whether to read MAI-CR 2d 1.10 are within the discretion of the trial court. State v. Broadux, 618 S.W.2d 649, 651-652 (Mo. banc 1981)." State v. Leroy, 724 S.W.2d 277, 279 (Mo.App.1987).

The fact the jury in this case was permitted to deliberate approximately eleven hours does not establish coercion. Nor does the fact the hammer instruction was given after approximately seven hours'...