State v. Booth

• Decision Date: 29 October 1974
• Docket Number: No. 35353,35353
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bernard Leon BOOTH, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 586

515 S.W.2d 586

STATE of Missouri, Plaintiff-Respondent, v. Bernard Leon BOOTH, Defendant-Appellant.

No. 35353.

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

Oct. 29, 1974.

Raymond A. Bruntrager, Sr., St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Ellen S. Roper, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

This is an appeal by defendant, Bernard Leon Booth, from a judgment of conviction entered by the Circuit Court of St. Louis City, Missouri, on a jury's verdict finding him guilty of murder in the second degree and assessing his punishment at twenty (20) years in the custody of the Department of Corrections, § 559.020 RSMo 1969. ¹ Because of the failure of the court to give an instruction on self-defense, we reverse and remand.

On May 16, 1972, in the mid-afternoon, a number of people were gathered at the Forest Park pavilion in the City of St. Louis. Five of these persons testified as witnesses. Henry and Frank Urban and Frank Smith, who were sitting together, heard what sounded somewhat like fire crackers to them. The two Urbans turned and looked into the parking area behind where they were seated and testified that they saw a man lying on the ground and another man walking away from the body. The man, who was walking away, according to them, left, got into an orange Karmen Ghia sports car, started the car, returned to the prostrated body, stopped the car, got out, walked over to the man lying on the ground and said, in effect, that the deceased was not going to do anything more to him. He then spat on the body, returned to this car, and left. Both of the Urbans wrote down the license number of the car and gave it to the police.

Two witnesses, Frank Smith and Gregory Moore, testified that they saw defendant chasing the decedent, Maurice Boykins across the parking lot; that Boykins fell and defendant walked up to where he was lying and fired two shorts into his body, and then got into a car and drove up to the body, got out, spit on the body, said something, got into his car and left. At the time of the shooting some witnesses said they saw a third man, whose identity was not disclosed, run from the scene. None of the five witnesses saw or heard anything or knew anything of what had happened prior to the first shots being fired.

Defendant testified that on the day of the shooting he had an appointment at Forest Park Community College at 3:30 P.M., but his appointment was delayed until 4:00 P.M. So, he went to the cafeteria and there he saw Boykins, whom he knew, and one of the witnesses, O'Neal Williams. Shortly after talking to Boykins, he left and returned to the pavilion to await the time for his appointment. As he was talking to a friend, Boykins, who was standing below the pavilion, called defendant over to the side porch of the pavilion. Boykins demanded money. When defendant refused the demand, Boykins said he would take it from him. A scuffle ensued. After having struck defendant several times in the face, Boykins pulled a gun. During the course of the struggle the gun fired and grazed Boykins' head. Defendant wrested the gun from Boykins' control. As Boykins turned and ran, according to defendant, he said, "You s_ _ of a b_ _, I'll kill you." Defendant testified that Boykins ran toward O'Neal Williams, who had earlier been sitting on the back of a parked car nearby and that O'Neal Williams fired a shot at him with a gun he was holding. Defendant said as he ran, he kept Boykins between himself and Williams to avoid being shot by Williams. Defendant further testified that after another shot was fired at him from the vicinity of the car, he fired at Boykins to keep him from getting the gun either from Williams or from the other occupants in the car, which Boykins appeared to be trying to do. Defendant admits that after he got into his car he did go back to the body and that he did spit. But his explanation was that he returned to the body to see if he could help Boykins and that he was merely spitting blood out of his bruised mouth which had been injured in the fight with Boykins.

We have held repeatedly that all that is required is any evidence of self-defense to justify an instruction on that issue, State v. Turnbo, 267 S.W. 847, 849 (Mo.1924). This much is conceded by the state, citing State v. Singleton, 77 S.W.2d 80, 83 (Mo.1934) and Rule 26.02, V.A.M.R. The Singleton court said that in order to justify a killing in self-defense where a deadly weapon inflicts a wound in a vital portion of the body, the accused must have believed the act was necessary and have had reasonable grounds for such belief. Additionally, the court in State v. Baker, 277 S.W.2d 627, 629 (Mo.1955) said that there must be substantial evidence to require the giving of a self-defense instruction.

In support of its position the state cites State v. McGee, 361 Mo. 309, 234 S.W.2d 587, 591 (Mo. Banc 1950). The case is distinguishable factually from the instant case because in the McGee case at the time the defendant assaulted the victim the victim's back was turned and in no way was the victim even aware of the defendant's presence. So, understandably, there was no evidence of impending danger or even the reasonable appearance thereof. Here, the evidence before the jury which was uncontradicted was that Boykins was the aggressor; that seconds before the shooting he attempted to take defendant's money; that he struck defendant a number of times about the head, jaw and chin; and that when the scuffle was apparently going the wrong way, he produced a pistol. In the struggle, the gun discharged, grazing Boykins' head. Boykins ran, but, on leaving left the parting threat, "You s_ _ of a b_ _, I'll kill you." Seconds later Boykins' friend, O'Neal Williams, fired at defendant and Boykins continued to run toward Williams and the car. Defendant saw a gun in Williams' hand and could reasonably believe that someone else in the car had a gun because a second shot was fired from the vicinity of the car. In this charged atmosphere, defendant testified that he fired the shots at Boykins because he believed the deceased was trying to get a gun to use on him. We hold that under the peculiar circumstances of this case the attack by the victim, his production of a pistol, and the attempt to point at the defendant coupled with his threat and his continued course of running toward a man whom he knew to have a gun, to say the least, created a jury issue as to defendant's reasonable apprehension of fear for his own life and safety. Consequently, we hold that it was reversible error for the court not to submit this issue to the jury.

Defendant's second claim that the court committed error in its submission of murder in second degree is without merit and untenable. Murder in the second degree is the killing of a human being wilfully, premeditatedly and with malice aforethought, but without deliberation (in cold blood). State v. Sherrill, 496 S.W.2d 321, 324 (Mo.App.1973) and § 559.020. 'Malice' is the wrongful doing of a wrongful act without just cause. State v. Mosley, 415 S.W.2d 796, 798 (Mo.1967). And the intentional killing with a deadly weapon gives rise to the presumption of malice, State v. Sherrill, supra.

From the evidence in the case at bar, the jury could reasonably find that defendant, with gun in hand, chased an unarmed Boykins, who, although the aggressor, had abandoned the fight; that defendant shot Boykins at close range twice in the head as he lay prostrated upon the pavement; that defendant left the scene, later returned, and contemptuously spat upon the dead body. Clearly, the state's evidence warranted a submission of this theory of murder in the second degree, State v. Gregg, 399 S.W.2d 7, 10 (Mo.1966).

Next, we take up defendant's complaint that the court improperly permitted the state's cross-examination of him to go beyond his testimony on direct examination. State v. McClinton, 418 S.W.2d 55, 59 (Mo.1967) and § 546.260. We consider this issue only because it may reoccur on retrial.

During the course of cross-examination of defendant, the state inquired of him as to what he had done with the gun used in the shooting after he had left the scene. Over defendant's specific objection that such an inquiry was improper because the subject matter of the inquiry was outside the scope of his direct examination, the defendant was compelled to answer that he stopped the car and threw the gun away. Repeatedly, we have held that the state is not limited to a categorical review of an accused's direct testimony, and if an accused refers to a particular subject matter in his direct examination, it is permissible that the state cross-examine him in great detail as to that particular subject matter, State v. Dalton, 433 S.W.2d 562, 563 (Mo.1968); State v. Moser, 423 S.W.2d 804, 806 (Mo.1968). In this case defendant testified fully as to the occurrence and ended his testimony with the statement, 'Started my engine up and left.' Other than the use of the gun, on direct examination, he made no mention as to the gun's disposition or where he had gone or what he had done later. Consequently, in our opinion, what defendant did after leaving the parking lot or what he did with the gun was neither directly or indirectly covered in his...