State v. Bolden

• Decision Date: 01 July 1975
• Docket Number: No. 35906,35906
• Citation: 525 S.W.2d 625
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerome Darnell BOLDEN, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 625

525 S.W.2d 625

STATE of Missouri, Plaintiff-Respondent, v. Jerome Darnell BOLDEN, Defendant-Appellant.

No. 35906.

Missouri Court of Appeals, St. Louis District, Division Three.

July 1, 1975.

Charles D. Kitchin, Public Defender; John E. Bell, James C. Jones, and Marilyn Wallach, Asst. Public Defenders, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen.; Preston Dean and Scott A. Raisher, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

Defendant-appellant, Jerome Darnell Bolden, was found guilty by a jury of assault with intent to maim with malice and was sentenced by the court under the Second Offender Act to 35 years imprisonment. § 556.280, RSMo 1969, V.A.M.S. He appeals. For reasons hereinafter stated, we affirm the judgment of conviction.

Defendant does not question the sufficiency of the evidence; hence only those facts necessary for the disposition of this appeal will be stated.

The incident for which defendant was tried and sentenced occurred during the early morning hours of June 8, 1973. At about 1:00 a.m., Jerome and Debra, his wife of about a month, were at Jerome's parents' home in St. Louis. They quarreled over a particular letter. The two left the house and went to the house of defendant's brother's girlfriend, Gloria. According to Debra, behind that house, defendant hit her with his fist, 'busted' her lip and 'put a knot on the side of (her) head.' He also picked up a 'stick or an iron pipe' and hit her in the side. She fell. While lying there, defendant kicked her. The two then returned to Jerome's parents' home. Defendant told Debra to wash her face and 'hurry up and get through' because defendant 'was going to kill me.' They again left the house and walked down Newstead Avenue. In the vicinity of Newstead and St. Louis Avenues, defendant picked up a brick and threatened to 'crack' Debra's head. Then he picked up a whiskey bottle, broke it on a lamp post and 'stabbed me in my side.' Debra said he then 'stabbed me' in the eye. After this incident, the two started walking toward Homer G. Phillips Hospital, a few blocks away. At Lambdin and St. Louis Avenues, Police Officer Terran Williams saw them, stopped and took both Jerome and Debra to the hospital.

About an hour and a half after arriving at the hospital, and when the defendant was not present, Debra told Officer Williams what had happened. She also told a Miss Chew, a friend of defendant, referred to as defendant's 'godmother,' who happened to be in the emergency room, that defendant stabbed her and pleaded with Miss Chew not to tell defendant what Debra told her. Miss Chew, however, testified that Debra told her that 'some men jumped her on the street and tried to rob her.' Debra was hospitalized 44 days; as a result of the incident, Debra's damaged eye had to be removed and was eventually replaced with a plastic eye. During her stay at Homer Phillips, defendant visited Debra some five times.

The defendant denied that he assaulted his wife and explained that while he and his wife were walking he and his wife parted--she went to get something to eat and he went across the street to a gas station. When he came out of the gas station, he saw some men surround Debra trying to rob her, had he came over to her. She was injured.

The defendant's mother, father and Miss Chew testified on his behalf. His mother and father testified that they did not hear or see Jerome threaten or injure Debra that evening at their home. Miss Chew testified that Debra told her at the hospital that some men 'jumped' her.

During the trial, which began on Wednesday, November 28, 1973, the following occurred which gave rise to the defendant's various points on appeal.

During voir dire examination, defendant's counsel announced he was 'not ready to try this case' and requested a continuance or at least that the case be 'held over' until the next Monday, December 3rd. The trial court noted that defendant's counsel had entered his appearance on September 24, and had over sixty days to prepare for trial. ¹ Four prior continuances had been granted at the request of defendant. ² The court denied the motion for continuance, but granted counsel leave to file an affidavit formally stating his request. The affidavits apparently were not filed until December 13, 1973, after the trial. Although the transcript indicates that the affidavit was 'filed' on November 28, 1973, counsel's signature was notarized on December 13. An affidavit of the trial court states 'There is in this file an affidavit in support of motion for continuance which is dated and stamped in the Office of the Circuit Clerk, December 13th, 1973. Obviously if any said motion was filed it was filed on that date. It further appears to this Court that someone requested the Clerk of the Court to scratch out December 13th and insert the date of November 28th, 1973. . . .'

During trial and on Friday, November 30, 1973, defendant's counsel made a second, separate request for continuance while discussing the jury instructions in chambers. He stated that Gloria (Drummond) and her mother, both of whom may have witnessed a portion of the assault, were out of town. He renewed his request for a continuance, at least until the followimg Monday 'to give the defense the opportunity to locate and produce this witness (sic).' The court noted that counsel had 'at no time' indicated the absence of the witness and had not followed the procedure for requesting a continuance, and 'I specifically have reference to the filing of an affidavit and no affidavit was filed in this case.' The court denied the request. Affidavits were filed apparently on December 13, alleging grounds for a continuance.

At trial, Dr. H. Philip Venable, Director of the Ophthalmology Department at Homer G. Phillips Hospital, testified that he treated Debra. He testified that he attempted to stop the leakage in the eye and that eventually the damaged eye was removed because an injury to one eye could cause the loss of the 'good' eye 'and that is the reason this eye was removed.' Not only to get rid of this bad eye but to prevent this eye from involving the only eye she had left.' No objection to this statement was made. Dr. Venable testified that he had not seen her in at least two months, but the last time he saw her the right eye was normal. At that point defense counsel approached the bench and objected to any development as to 'what might' happen to the right eye because this would call for speculation. The court stated after the objection that it would allow the doctor to testify if 'based upon his experience, and with reasonable medical certainty.'

Dr. Venable testified that, based on his experience, if the 'good' eye is to be affected by the damaged eye, it would occur 'within 10 days to two weeks or certainly up to two months' in 80% of the cases. He further testified that he had three cases out of some 2000 in which the condition to the other eye occurred more than a year after the initial injury. This statement was objected to as 'irrelevant, immaterial, not competent to prove any issue in this case and it is prejudicial.' The objection was overruled.

During the cross-examination of Dr. Venable by defense counsel in answer to a question relating to the procedures concerning visitations at the hospital at off-hours, Dr. Venable answered:

'(H)e (a visitor) has to identify himself and also for security reasons he must identify himself as to whether or not--what his relation to the patient especially in the City Hospital because sometimes a person that comes in is the person that inflicted the injury in the first place--' (Emphasis added.)

Defendant asked that this 'last volunteered portion' be stricken; however, the court 'let it stand for what it is worth.'

During closing argument to the jury, the prosecutor stated:

'Ladies and gentlemen, why would Debra Bolden come in this courtroom after having been inflicted with a severe injury on her and go through weeks of hospitalization and several major operations and had her left eye removed and have the potential to lose her signt--' (Emphasis added.)

Defendant's objection (without stating grounds) was overruled.

Later in the second half of his closing argument, the prosecutor stated:

'Why did all of a sudden Jerome (defendant) appear in this courtroom out of the clear blue sky? Nobody was looking for him because we were looking for a bunch of robbers and now Jerome sits here at this table--no, that doesn't carry any weight. Does that prove he is not guilty? The burden of proof is on me.' (Emphasis added.)

Defendant objected on the ground that he 'doesn't have to prove that Mr. Bolden is not guilty.' The court overruled the objection and noted that it 'has fully instructed the jury on the burden of proof.'

The amended information under which defendant was tried alleged that defendant had been convicted on April 23, 1971, for the offense of second degree burglary, sentenced to four years imprisonment and paroled on February 13, 1973.

At an evidentiary hearing out of the jury's presence during trial, defendant acknowledged and stipulated to the fact that he was convicted of burglary in the second degree but indicated that the Amended Information incorrectly listed his place of confinement at Moberly. State's Exhibit No. 2, a certified transcript of serial record, indicated that defendant had been convicted of second degree burglary, was sentenced for four years imprisonment on April 23, 1971, and was paroled on February 13, 1973.

A deputy clerk of the circuit court read an entry dated February 20, 1970, from the court's records that defendant had pleaded guilty to burglary second degree, was sentenced and placed on probation. The clerk also read an entry of April 23, 1971, which stated that the probation entered on February 20, 1970, was revoked. After the reading of the entries, the...