State v. Bolden, 55541

• Decision Date: 09 April 1973
• Docket Number: No. 1,No. 55541,55541,1
• Citation: 494 S.W.2d 61
• Parties: STATE of Missouri, Respondent, v. Armond BOLDEN, Appellant
• Court: Missouri Supreme Court

Page 61

494 S.W.2d 61

STATE of Missouri, Respondent, v. Armond BOLDEN, Appellant.

No. 55541.

Supreme Court of Missouri, Division No. 1.

April 9, 1973.

As Modified on Courts Own Motion.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 14, 1973.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Wesley D. Wedemeyer and Zimbalist, Sachs, Schramm & Branom, Clayton, for appellant.

HIGGINS, Commissioner.

Armond Bolden, charged with assault with intent to kill with malice aforethought, was convicted by a jury of assault with intent to kill without malice. The jury was unable to agree on defendant's punishment; the court assessed his punishment at four years' imprisonment, and rendered sentence and judgment accordingly. §§ 559.180, 559.190, RSMo 1969, V.A.M.S.; Rule 27.03, V.A.M.R. (Appeal taken prior to January 1, 1972.)

Under his Point VI, appellant asserts 'the credible evidence was insufficient to sustain a conviction since there was a reasonable doubt of * * * guilt as a matter of law.' His argument is that testimony of the prosecuting witness is incredible and that the State did not meet its burden on the issue of self-defense.

Accordingly, the evidence will be stated in some detail because such statement demonstrates sufficiency of evidence to sustain the conviction, and that conflicts in the respects noted were properly resolved by the jury.

As suggested by appellant's statement, it is undisputed that on August 24, 1969, at about 4:30 p.m., Armond Bolden and his wife Ruby were driving their separate automobiles on the streets of St. Louis, Missouri, when Armond signaled his wife to stop. An altercation ensued during which Ruby was shot from two to four times by Armond, and Armond was shot twice, either by himself or by Ruby. One pistol was found at the scene; another was given to police at the hospital. Both parties were hospitalized; both subsequently recovered.

It is also undisputed that Armond, age 32, and Ruby, age 28, had been married about seven years at the time of trial in October 1969, but had been separated since November 10, 1968. During this separation, they had visited each other several times and discussed reconciliation. Reconciliation efforts failed, however, and Mrs. Bolden sued her husband for divorce in July or August, 1969, with service accomplished on Mr. Bolden in August sometime prior to the shootings. There had been three prior separations.

According to Mrs. Bolden, she was taking her two children and two nieces to the zoo. She first saw her husband at Pope and Carter and then noticed he was following her. After some four blocks, at Kossuth and Newstead, 'He pulled over in front of me and forced me to the curb * * * so I couldn't turn around. * * * Then he approached my car with a gun. * * * He came to my side and shot into the driver's side at me.' He shot her twice 'and then my foot released the brake and my car rolled to the service station lot that was across the street and rolled into a truck, and then he came up and then he shot me two other times.' The first shot struck her in the mouth, 'because I remember blood gushing out of my mouth and I remember I grabbed my mouth * * * and teeth and bone and whatnot was flying out.' The second shot hit her in the left nostril and the third and fourth shots hit her in the arm and side. 'I remember hearing two other shots being fired, but I didn't feel the impact of the bullets.'

Prior to August 24, 1968, on July 15, 1968, 'my husband broke both of my jaws. * * * He said that if I had him arrested that he would get me for it. * * * He would kill me. * * * I called the police at the hospital and they came over and I issued an arrest order.' Mrs. Bolden denied carrying a gun.

Marlene Canada, also known as Marlene Tatum, twelve-year-old niece of Mrs. Bolden, was riding in the rear seat of her aunt's car with Armond, Jr., and Shawn Bolden, small children of Armond and Ruby Bolden. She was her uncle approach her aunt's side of the car and heard three shots, after which she turned her head and started screaming. The shots entered through the window of the driver's seat and hit her aunt. She heard two additional shots and saw them fired by Mr. Bolden into his chest. She did not see Ruby with any gun that day, denied that her mother owned a gun, and stated she had never seen her mother give a gun to her sister, Ruby Bolden.

Barbara Tatum, sixteen-year-old niece of Ruby Bolden, was riding in the front seat of her aunt's car when her uncle Armond shot Ruby. She heard about two shots fired at her aunt which struck her in the face. She then jumped from the car after which she heard other shots. Her aunt did not have a gun in her hand.

Patrolman Marvin Boone of the St. Louis Police Department arrived at the scene of the shootings at about 4:40 p.m. Ruby Bolden had been removed to a hospital; defendant was present leaning against a truck with two bullet wounds in his upper left chest. Patrolman Boone took Armond to City Hospital No. 2 where he also saw Ruby Bolden, unable to speak, bleeding, and prepared for surgery. A .32 caliber pistol was given to him at the hospital by a person who had taken Ruby to the hospital; he had not seen such weapon at the scene.

Patrolman William Lore, also of the St. Louis Police Department, was the first officer to arrive at the scene of the shootings. He saw Armond Bolden leaning against a truck, and he was removed to the hospital by Patrolman Boone. He found a .38 caliber Smith and Wesson revolver and three or four spent shells. Ruby Bolden had already been removed from the scene.

Defendant's version of the incident in July was that he went to Ruby's apartment and 'she was complaining of her jaw, so I carried her to the hospital in my car and admitted her on my insurance * * *.' He was not arrested as a result of that incident. He acknowledged receipt of the divorce papers 'and the grounds were a lot of things that were untrue, and so I wanted to talk to her about that.' On the day in question, 'I had been to get the car washed and I went back home and cleaned up and I was on route to the hospital to see my cousin * * * and I dropped Charles Hamm off over to Mr. Moore's. * * * And then I proceeded to go to the hospital, and I saw Ruby, which is my wife, so I beckoned for her to pull over, which she did, and then I parked my car' in front of her. '* * * as I approached the car, well, she was cursing, and then when I approached the car she shot me and then I went to try to talk to her again and then * * * it appeared as if she was fixing to shoot me again, so I ran back to my car and got my gun and I guess out of instinct and also being shot, I shot her.' He was hit over the heart, and after he shot her, 'she was lying over in the car * * * and it eased across the street, and then she got out with the gun in her hand and I snatched it from her hand and then I dropped it because I was getting weak. And by this time * * * some fellow assisted me to the truck bumper * * *.' Armond claimed the .38 caliber revolver as his and admitted he shot Ruby with it. He said the .32 caliber revolver belonged to Ruby's sister, Gladys Tatum, and that he had seen it many times in Ruby's possession. He dropped his own weapon at the scene. He believed his wife had been associating with other men during the separation. He had been convicted of stealing a hat some twelve years previous to this incident for which he refused to pay a fine and served time instead.

Charles Hamm happened by the scene but both Armond and Ruby were gone. He saw bullet holes in the driver's window of Ruby's car. He did not see the .38 caliber weapon at the scene but had seen it in the apartment he shared with Armond; he saw the other gun at the scene.

In addition to questioning the sufficiency of evidence, appellant presents five charges of trial error.

He complains, first, that the court erred in admitting, over his objection, testimony of the victim that her husband had broken her jaw more than one month prior to the offense for which he was now on trial. He asserts such was evidence of another crime for which he was not on trial and that it deprived him of a fair trial.

Linked to this is appellant's Point III by which he charges error in admission of the testimony that the victim reported the jaw-breaking incident to the police and that a warrant or arrest order was issued. He asserts this to be improper since only a conviction of crime is admissible to affect his credibility and this was inadmissible for any purpose, and he was thus denied a fair trial.

These matters arose during the State's examination of Mrs. Bolden:

'Q And had you been involved in an incident with your husband where he had done some bodily injury to you? A Yes. Q About how long before this actual shooting incident did this occur? Mr. Fitzsimmons: Your Honor, I'll object to this as being immaterial to this lawsuit, and not related to this charge. * * * Mr. Altobelli: Your Honor, what I'm trying to establish is simply this: That there was an incident that occurred prior to this shooting that set up the motivational pattern for the shooting incident, that in effect a threat had been made against Mr(s). Bolden about the incident that occurred earlier wherein he had indicated that if she did certain things that he would shoot her. * * * And I think this is an exception to the rule where information or evidence of prior offense cannot be introduced because this shows a pattern, this shows a reason for the particular offense that we're trying today. Mr. Fitzsimmons: Your Honor, I'll object on the basis that this is not a charge of murder or a crime which requires premeditation. Any statement of any previous incident would be of another crime and would also be unrelated to this incident. He's charged with assaulting her on this day, not with another crime on (an)other day. * * * Mr. Altobelli: Well, you see, the thing...