State v. Berry

• Decision Date: 30 July 1975
• Docket Number: No. 9444,9444
• Citation: 526 S.W.2d 92
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Clyde Henry BERRY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 92

526 S.W.2d 92

STATE of Missouri, Plaintiff-Respondent, v. Clyde Henry BERRY, Defendant-Appellant.

No. 9444.

Missouri Court of Appeals, Springfield District.

July 30, 1975.

Clyde R. Allemann, White, Dickey & Allemann, Springfield, for defendant-appellant.

John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Defendant Clyde Henry Berry, charged as a second offender, § 556.280 V.A.M.S., ¹ was found guilty by a jury of the offense of manslaughter, § 559.070, and was sentenced to a prison term of eight years, § 559.140. Defendant appeals.

The information, in addition to alleging the prior conviction, charged the defendant with the first degree murder of Mildred L. Moody by use of a knife.

The first of defendant's four contentions is that the evidence is insufficient to support the conviction. In determining the validity of that contention, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). This court must disregard all evidence unfavorable to the state and reject all inferences unfavorable to the State v. Summers, 506 S.W.2d 67, 69 (Mo.App.1974). The defendant offered the testimony of himself and other witnesses and thus the submissibility of the case will be determined upon all of the evidence. State v. Sykes, 372 S.W.2d 24, 25(2) (Mo.1963); State v. Chester, 445 S.W.2d 393 (Mo.App.1969).

It is not the function of this court to determine the credibility of the witnesses or to weigh the evidence. State v. Small, 423 S.W.2d 750, 751(2) (Mo.1968). The effects of conflicts or inconsistencies in any testimony are questions for the jury. State v. Turnbough, 497 S.W.2d 856, 858(5) (Mo.App.1973). The jury may believe all or none of the testimony of a witness, or may accept it in part or reject it in part, just as they may find it to be true or false when considered in relation to other testimony and the facts and circumstances of the case. State v. Wynn, 391 S.W.2d 245 (Mo.1965).

In a circumstantial evidence case, the state is required to prove facts and circumstances consistent with the guilt of the defendant and inconsistent with any reasonable theory of his innocence, State v. Keller, 471 S.W.2d 196, 198(1) (Mo.1971), but the circumstances need not demonstrate an absolute impossibility of innocence. State v. Phillips, 452 S.W.2d 187, 189(2) (Mo.1970).

The victim of the offense was Mildred L. (Mickey) Moody, a former wife of the defendant. The principal events took place on May 15, 1972, at defendant's home in Springfield, Missouri. At the time of her death, Mickey was the wife of Junior Moody and they lived at 1426 Ethyl, 'about 10 minutes from defendant's home.'

After divorcing Mickey, defendant married Anna. Although defendant was divorced from Anna prior to the date of the offense, he and Anna continued to live together in the four and one-half room house located at 2041 N. Marion. The house faces east and is located at the northwest corner of the interesection of West Lee and North Marion.

During the afternoon of May 15 Mickey, Junior, Anna and the defendant were in the kitchen of defendant's home, drinking wine. Three months earlier Anna had heard Mickey tell the defendant 'Don't you ever hit Anna in my presence or I will whip you.'

Anna testified that Junior, when he drank, was a pleasant person and did not get violent. The same was true of Mickey and Anna. However, when the defendant drank, according to Anna, he was 'an entirely different person . . . he is violent.' During the afternoon, while the four people were together, defendant and Anna had an argument about a pepper plant and defendant struck Anna. This caused her mouth to bleed and she also received an injury to her forehead.

Junior left the defendant house and he never saw Mickey alive thereafter. After Junior left, the defendant kept 'cussing' and 'raving.' Anna was struck again by the defendant. This time he hit her with his fist and knocked her through a door into a room on the west side of the defendant's house. Defendant's second assault upon Anna caused injuries to her head and 'broken ribs on both sides.'

The defendant's height was 6 2 and he weighed about 230 pounds.

Anna got up off the floor, after the defendant's second attack, and went out the back door. Witness Jack Watson saw her departure. She entered a house located west of that of the defendant and went to sleep up a bed. The next thing she remembers was being awakened by the police.

When Anna left the defendant's house the only two people there were the defendant and Mickey. Mickey was alive and uninjured, sitting in a chair in the kitchen, and the defendant was in the kitchen. A paring knife and a butcher knife were in the kitchen. No curtain was torn down while Anna was in the defendant's house and the kitchen curtain was still in proper position when she left.

Junior testified that after he wad been home about an hour he returned to defendant's house about 5:30 p.m., and parked his automobile on Lee Street, south of the house, and entered the front door. He was only a step or two into the house when he was met by the defendant. For reasons unknown to Junior, the defendant attacked Junior with a knife and Junior was cut in the upper arm. Junior drove home and called the police.

Rev. Thomas Boaz was mowing a nearby lawn, about 5:30 p.m., and saw Junior park his car and walk to the front door of defendant's house. A fist came 'through the door' at Junior and Junior left the premises immediately and drove away.

Jack Watson testified that he lived in a house located at the southwest corner of the interesection of West Lee and North Marion. Watson's house faces north and is about 75 feet from the defendant's house. Between 5:32 p.m. and 5:37 p.m. Watson, from his porch, saw Junior depart in Junior's 1966 Plymouth. After Watson saw Junior leave, and while Junior's car was no longer in the area, Watson heard some banging noises emanating from the defendant's kitchen and saw a curtain being pulled down.

Mickey weighed about 200 pounds and was 5 10 tall. She was larger than Junior or Anna, both of whom denied killing her. About 25 minutes after Watson heard the banging noise, the defendant came out the back door of his house, went to the front yard and then came across to the Watson house. Defendant told Mr. and Mrs. Watson that there was a murdered woman in his house and that Anna had left with Junior. Mrs. Watson told the defendant that Anna had not left with Junior but had gone down the street to another house. The defendant said 'No, she went with Mr. Moody, don't argue with me.' The defendant had blood across the knuckles of both of his hands. He told Mrs. Watson 'Well, I guess I got it off of her.' The police arrived twenty minutes later.

Photographs of the victim showed her lying on the kitchen floor, the upper portion of her body in a pool of blood. The butcher knife had penetrated the body almost to its hilt and its direction of entry was toward the front of the body.

Dr. E. B. Hanon, a pathologist, conducted an autopsy of Mickey's body on May 16. His examination disclosed multiple stab wounds. The knife was sticking out of the back just to the left of the spinal cord about the level of the fifth and sixth thoracic vertebrae. Just above the knife was a stab wound about 1 1/4 inches long in the same line and just to the left of the spinal column about the level of the second and third thoracic vertebrae. This would had deviated to the right, cut across the posterior layer of the spinal column, entered the spinal canal and several the spinal cord. The wound was apparently made by the same knife which was sticking in the body. The knife blade measured 7 1/2 inches in length and had penetrated the body a distance of 6 3/4 inches. There was another stab wound, about four inches across, just below the axilla. There were knife point bruises on the shoulder. Death would have occurred 'within a period of a few minutes.' There was a palm wound which was consistent with the deceased attempting to fend off a knife. Dr. Hanon also testified that it would not have been possible for the wounds to have been self-inflicted.

After the police officers arrived, sometime after 6 p.m., Officer Allen entered the house and discovered the dead body. The officers observed blood on the defendant's shirt and pants and on the knuckles and palms of his hands. The defendant also had a faint scratch across his mid-abdomen. The defendant's handkerchief was bloodstained as were his shoes. His shirt was disarranged.

Police photographs of the kitchen showed evidence of a struggle. Mickey's watch was lying on the floor near the body and the curtain, normally attached to the kitchen window, was lying across the breakfast table and the curtain rod itself was out of position.

During the ride to the police station the defendant threatened the officers. The defendant previously had been given the Miranda warnings.

The defendant told one of the police officers that he had been asleep, heard a noise, went to a window and saw Junior speeding away. Officer Charles Ritter heard the defendant say that Anna had left with Junior. He was the officer who found Anna in the bedroom asleep. Defendant told the Watsons that he guessed 'I would be blamed for this.' He told a police officer that Junior had done the killing.

At the police station the defendant told Anna 'to keep her damn mouth shut.' Defendant admitted the two assaults on Anna and said that he had 'bloodied her up' on prior occasions. He also stated that he did not know how long Anna stayed around after the second assault upon her but she did not leave immediately.

The...