State v. Buckles

• Decision Date: 23 August 1982
• Docket Number: No. 63808,63808
• Citation: 636 S.W.2d 914
• Parties: STATE of Missouri, Respondent, v. Gurney Edward BUCKLES, Appellant.
• Court: Missouri Supreme Court

Page 914

636 S.W.2d 914

STATE of Missouri, Respondent, v. Gurney Edward BUCKLES, Appellant.

No. 63808.

Supreme Court of Missouri, En Banc.

Aug. 23, 1982.

Amy Johnson Davis, Bloomington, Ill., for appellant.

Hon. John Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM:

Gurney Edward Buckles was convicted of second degree murder and sentenced to forty years in prison for the killing of Donald Stewart. An expanded panel of the Court of Appeals, Western District, affirmed the judgment; the case was certified to this Court by a dissenting judge in belief that the majority's decision on one of several points on appeal was in conflict with State v. Oldham, 618 S.W.2d 647 (Mo. banc 1981). The case is determined as an original appeal, Mo.Const. art. V, § 10; the judgment will be affirmed in an opinion which incorporates much of the majority opinion of Swofford, Senior Judge.

The statement of facts in appellant's brief is accepted by the state and upon comparison with the transcript and record is deemed to be in full compliance with the rule governing such statement.

On January 13, 1978, Gurney Edward Buckles was hitchhiking north on Interstate Highway 29 in north Missouri when he was picked up by Donald Stewart, the eventual victim of this homicide. Stewart told Buckles he was on his way to Sanborn, Minnesota, to purchase a newspaper operation, and asked Buckles to accompany him in case of automobile trouble. Buckles agreed, and over the course of the next two days, he and Stewart traveled to Sanborn and then returned to Buckles's "home territory" around Forest City, Missouri, on January 15, 1978. During the course of this journey involving two overnight motel stays, Stewart asked Buckles to participate in homosexual acts, which Buckles refused on two separate occasions.

Upon arriving at the trailer of Buckles's friend, Jim Book, located eight miles south of Forest City, Missouri, Buckles opened his door, reached around to the back seat to retrieve his backpack, and turned around to find Stewart with a knife in his hand; Stewart insisted Buckles perform sodomy. After orally refusing but still encountering Stewart's insistence, Buckles swung his backpack around striking Stewart's arm. In the ensuing struggle, Buckles obtained the knife and stabbed Stewart a couple of times in the front, then jumped out of the car, pulled Stewart out, and stabbed him some more. Buckles testified he was scared, mad, and a little shocked at the time.

Following this stabbing, Buckles placed Stewart's body in the rear seat of the car, drove down to the bank of the Missouri River, which in January contained ice chunks, and put the body in the water. Buckles removed Stewart's identification and took $10.00 from his coat. He had considered rolling the entire car into the river, but decided to utilize it to rob "something" to enable him to leave that part of the country. He didn't call the authorities because he had long hair and a beard, the victim was a teacher, and therefore he felt he would not be believed. He drove the car to Oregon, Missouri and parked it across the block from Earl Nash's house, where he had been staying. On cross-examination, Buckles testified he hadn't discontinued the trip with Stewart after the homosexual advances because of the winter weather.

The next day, Buckles used Stewart's car in a robbery of the Farmers State Bank in Rosendale, Missouri. He fled to the state of California, where he was apprehended and was later returned to the Jackson County Jail on federal bank robbery charges.

On May 3, 1978, a body was discovered floating in the Missouri River on the Kansas side near St. Joseph, Missouri. This body was identified as that of Donald Stewart by means of dental records. An autopsy was performed in Kansas and the surgeon performing the same testified that he found "many knife wounds" on both the front and back of the body and lacerations of the palms of both hands. The surgeon stated his opinion that death was caused "by a laceration of the aorta caused by a sharp instrument" and that Stewart "was already dead when he was placed in the water."

On February 3, 1978, while incarcerated at the Jackson County, Missouri jail on the federal bank robbery charge, Buckles was visited by FBI Agent Joseph Holtslag; Missouri Highway Patrol Sergeant Robert Anderson; Holt County Sheriff Melvin Hayzlett; and Andrew County Sheriff Reed Miller. After introductions and Buckles's indication he would see what the officers wanted, an interview took place. Buckles informed these officers he had been advised by his federal defense counsel not to talk with law enforcement officers. The officers then asked: "about the bank robbery?", to which Buckles responded "Yes." The officers then said they were there concerning the whereabouts of Donald Stewart, and then furnished and read aloud a printed Miranda warning and waiver of rights, which Buckles refused to sign. Buckles said he did not know any Donald Stewart. Upon his request to see a picture of Stewart, Buckles was shown a photograph of Stewart and was informed the Minnesota trip had been traced. Buckles became emotional and tearful and asked, "Can we make a deal?" When told "No," he signed the Miranda waiver and then confessed his relations with Stewart and the homicide.

On February 4, 1978, the Holt County prosecutor filed a felony complaint charging Buckles with murder. On February 21, Buckles wrote a letter to the magistrate judge informing him of his indigency and requesting appointed counsel. On April 25 of the same year, Buckles pleaded guilty to the federal bank robbery charge, was sentenced to fifteen years imprisonment, and his federal defense attorney sent a letter on this date to the state prosecuting authorities requesting a speedy trial of the state charge. Thereafter, Buckles was incarcerated in a federal penitentiary in El Reno, Oklahoma, and an initial detainer was lodged in Washington, D. C. with the attorney general's office on May 5, 1978. On December 29, 1978, Buckles was returned to Holt County for the homicide proceedings and counsel was appointed. On that day motions to suppress evidence and to dismiss were filed.

On February 14, 1979, the motions to suppress and to dismiss were overruled after a preliminary hearing, and the case was ordered to the circuit court for trial. On March 5, 1979, an information charging Buckles with capital murder was filed. He was arraigned and counsel was appointed on March 7, 1978. He filed an application for prohibition, a motion to remand to the magistrate court for a new preliminary hearing and a motion to dismiss. On March 26, 1978, motions to suppress confession and any police testimony in relation thereto, and to dismiss on constitutional grounds were filed.

On April 6, 1979, a hearing was held on the various motions and they and the application for prohibition were overruled; the motion to suppress evidence was taken under advisement.

On April 25, 1979, further motions were filed to remand, dismiss, quash, force disclosure, and suppress evidence, which after hearing were overruled except for the motion to suppress any evidence of the bank robbery which was taken under advisement.

On April 26, 1979, a jury panel was called and during voir dire discharged on the motion of defendant. A second jury panel was summoned and exhausted on challenges for cause. A mistrial was declared and the cause reset. On May 7, 1979, defendant filed an application for change of venue and the case was transferred to Grundy County. The trial commenced in Grundy County on June 13, 1979, resulting in the verdict and judgment.

I

Appellant charges the court erred in submitting any first degree murder instruction (No. 7), asserting there was insufficient evidence to support such submission because it was not shown that the killing occurred during the commission of another felony, and that the court erred in rereading the instruction to the jury after a correction of wording.

The record shows that this case was submitted to the jury under instructions on capital murder, murder in the first degree, murder in the second degree and manslaughter. As noted, the jury found defendant guilty of murder in the second degree and, under the present procedure of bifurcated trials, assessed his punishment at forty years imprisonment, upon which verdict the judgment was entered.

During the reading of the instructions to the jury the court discovered that Instruction No. 7 on first degree murder, through clerical or typing error, omitted the required finding, "If you find and believe from the evidence beyond a reasonable doubt," etc. before the first paragraph of the instruction. The court amended the instruction so as to include this language and reread it to the jury.

By the verdict and judgment these contentions became moot. In this state of the record the appellant is in no position to complain of the giving of an instruction on a certain degree of murder when he was not convicted of that offense. State v. McQueen, 399 S.W.2d 3, 6, (3) (Mo.1966), cert. denied 384 U.S. 977, 86 S.Ct. 1873, 16 L.Ed.2d 687; State v. Eldridge, 564 S.W.2d 603, 605(6) (Mo.App.1978), and cases cited. Similarly, the correction of the error in Instruction No. 7 by the court and rereading it to the jury so that it could be properly instructed with respect to first degree murder is moot.

II

Appellant charges error to admission of evidence relating to the bank robbery on the day after the homicide. Evidence of an independent and unconnected crime is inadmissible to prove the crime charged, unless it tends to establish motive, intent, absence of mistake or accident, common scheme or plan embracing the commission of multiple related crimes, or the identity of the person charged. State v. Reese, 457 S.W.2d 713 (Mo. banc 1970). The test of admissibility is whether the logical relevancy of the separate crime to a particular...