State v. Burnett
| Decision Date | 31 August 1982 |
| Docket Number | No. 63374,63374 |
| Citation | 637 S.W.2d 680 |
| Parties | STATE of Missouri, Respondent, v. Kenneth R. BURNETT, Appellant. |
| Court | Missouri Supreme Court |
Peter M. Schloss, Kansas City, for appellant.
John Ashcroft, Atty. Gen., John Jacobs, Asst. Atty. Gen., Jefferson City, for respondent.
Kenneth Burnett appeals from his conviction by a jury of assault in the first degree (§ 565.050.2 1 ), and sentence to life imprisonment (§ 558.011.1(1)). Jurisdiction is in this Court. Mo. Const. art. V, § 3.
On February 24, 1981, at about 8:30 p.m., appellant and a friend, Barry Stidham, went to the Lalla Bonding Company office in Liberty, Missouri, to meet Floyd Foster, a partner in the bonding company, to possibly arrange for the continuation of a bail bond for another friend, one William Payne, who was in jail. The bonding company was across the street from the Clay County jail. Appellant and Stidham drove there in the car of appellant's sister, Sandra Burnett, and parked behind the company building, leaving the car unlocked and the key in the ignition switch.
Appellant and Stidham then went into Foster's office. Foster was there and a discussion ensued about Foster making bond for Payne. The dispute over the bond involved the demand by Foster that fees due for the previous bond be paid and an increased fee for a new bond because the court had raised the bond to a higher amount.
At this point, the state's version and the defense version of the events are in total contradiction. For the purpose of determining sufficiency of evidence, the court would, of course, consider the evidence in the light favorable to the verdict, however, the issues presented on this appeal require that the two versions be stated.
State's evidence:
Once it became evident that Foster would not post bond for Payne, appellant stood up, opened his coat and pulled out a revolver, threatening to kill Foster. At the same time, Stidham put his sweater over the barrel of the gun to muffle the sound. Foster grabbed the gun, but appellant cocked the gun and pulled the trigger. The primer on the cartridge was indented by the firing pin but the round in the chamber misfired. A fight ensued during which appellant again tried to shoot Foster, who was able to get his little finger between the hammer and the firing pin, thus preventing the gun from firing. Foster suffered a blood blister on his finger as a result. During the course of the fight, three or four primers had been indented in an attempt to fire the gun, but each time the round misfired. Foster was beaten, bitten on the face and had "gobs of hair" pulled out in the struggle. His injuries required hospital treatment.
Just as the fight began, George Lucas, who had an office across the street from the bonding company, was returning from his car when he heard Foster's cries for help. He looked in the window, saw appellant and Stidham striking Foster, and saw the gun pointed in Foster's face. Lucas ran across the street to the Clay County jail and called for help. Three deputies and an off-duty highway patrolman ran to the bond office, broke the door down and subdued appellant and Stidham. Appellant did not stop fighting when ordered to do so by police; he had to be pulled off Foster by police, with whom he continued to struggle. Appellant and Stidham were taken to the jail and searched. Brass knuckles were found in Stidham's coat pocket. The men were carrying approximately $80.00; both men knew it would have taken $710.00 to pay the debt owed on William Payne's previous bonds and to cover the new bond. A briefcase containing a holster and bullets for the gun was later found in the car appellant and Stidham had parked behind the bond office. The gun involved was a single action Ruger .357 magnum revolver.
Appellant's evidence:
Appellant did not testify. Stidham testified in appellant's case and his testimony presented the factual contradiction to the state's evidence, with respect to the fracas.
Stidham testified he and appellant went to Foster's office on the evening in question to talk about the bond for Payne. After arriving at the office, Foster invited the two into a back room where there was, among other things, a motorcycle, and said it was a deposit on another fee and inquired if either of them might be interested in buying it if the fee was not paid. A discussion about the money owed on Payne's bond ensued. Foster drew the gun on appellant. Appellant grabbed for the gun and Stidham grabbed Foster from behind. The fight ensued over the gun during which Foster bit Stidham's finger and Stidham bit Foster in the face. The police came in, the fight ended and Stidham and appellant were taken to the Clay County jail. Brass knuckles were found in Stidham's coat, but he testified he did not know they were there.
On direct examination Stidham testified that he had been previously convicted of a number of felonies stating:
In 1967 I was convicted of forgery and burglary. In 1968 I was convicted on drug charges. In 1974 I was convicted of car theft. In 1977 I was convicted of a drug case and burglary. And I'm presently serving 10 years for assault.
Just prior to Stidham's testimony, defense counsel stated to the court that Stidham was then serving a ten year sentence for assault arising out of this occurrence and moved that Stidham's testimony on this conviction go no further, and that the assault not be identified to the jury as a conviction of assault arising out of this particular occurrence. The motion and objection were overruled.
During cross-examination by the state's attorney, the following occurred:
Q. YOU'RE DOING 10 YEARS FOR THIS SAME ASSAULT; ISN'T THAT CORRECT, MR. STIDHAM?
A. YES, I AM.
Q. YOU GOT CONVICTED UP HERE IN THE CLAY COUNTY CIRCUIT COURT BY A JURY; ISN'T THAT CORRECT?
A. YOU WAS THE PROSECUTOR AT MY JURY TRIAL, SIR.
Q. YOU GOT 10 YEARS; ISN'T THAT CORRECT?
A. YES, IT IS.
Also during cross-examination Stidham was asked if brass knuckles were found in his coat pocket and he said that was correct. Earlier defense counsel raised this matter with the court, asserting by motion in limine, seeking to prevent the inquiry on the basis that there would be no evidence the appellant knew Stidham had the brass knuckles with him. The motion and objections were overruled on the basis that the evidence would show the two were acting together.
At about 1:00 a.m. the next morning, February 25, 1981, the City of Liberty police impounded the car appellant and Stidham used to drive to Foster's office. Subsequently it was claimed by appellant's sister, who owned it. She denied ownership of a briefcase that was found on the front seat of the car. The police opened the briefcase and found a revolver holster and holders containing several .357 magnum revolver shells. Prior to trial, the court held a hearing on appellant's motion to suppress the briefcase, holster and shells as having been obtained by a warrantless search and seizure and without probable cause. In that hearing appellant testified the briefcase was his property and it was latched closed. The trial court sustained the appellant's motion to suppress. The briefcase and its contents were not offered in the State's case.
Toward the end of the recross-examination of Stidham, the prosecutor questioned him and Stidham responded as follows:
BY MR. HENSLEY:
Q. MR. STIDHAM, JUST A COUPLE OF OTHER QUESTIONS. YOU'RE ABSOLUTELY SURE NOW THAT FLOYD FOSTER PULLED THIS GUN?
A. I DON'T KNOW IF THAT'S THE SAME--
Q. YOU GUYS DIDN'T? WELL IT WAS A GUN LIKE THIS?
A. YES.
Q. YOU GUYS DIDN'T HAVE A GUN WITH YOU?
A. THAT'S TRUE.
Q. YOU'RE ABSOLUTELY SURE YOU CAME UP HERE IN THIS PONTIAC AND PARKED BEHIND THE BUILDING, BUT YOU DIDN'T HAVE NO GUN WITH YOU?
A. THAT'S CORRECT.
Q. YOU DIDN'T HAVE NO BULLETS WITH YOU?
A. THAT'S TRUE.
Q. DIDN'T HAVE NO HOLSTER WITH YOU?
At the conclusion of Stidham's testimony the defendant rested and the prosecutor announced he had one rebuttal witness. Anticipating the State was going to offer the suppressed briefcase, holster and bullets into evidence, the defense counsel objected to the admission of the suppressed evidence because it had been suppressed. The prosecutor stated he desired the evidence to be admitted to rebut the testimony of Stidham as set forth above. The court overruled the objection and stated the evidence would be admitted "only for the purposes of the credibility of the witness when he [Stidham] said that they had no gun and had no holster or bullets." The briefcase was marked as States Exhibit 38 and the holster and bullets as Exhibit 39.
State witness Gant, a City of Liberty police officer, then testified about finding the briefcase in the car and later finding the holster and bullets in the briefcase. He also testified at length that the revolver used in the fracas fit into the holster and that the bullets found in the holster fit the revolver and were of the same manufacture, size and kind as the bullets found in the revolver at the scene of the crime.
The prosecutor argued to the jury that appellant had the revolver and attempted to shoot Foster; that Stidham has "been given 10 years for this very crime"; that Stidham said they didn't bring a gun, holster or bullets and he lied about that to the jury; that the bullets found in the revolver were the same type as found in the holster [Ex. 39]; that the revolver fits into the holster and was made for it; that the jury should look at the briefcase [Ex. 38] and ask why it was in the car if they didn't have the gun instead of Floyd Foster. In rebuttal argument he argued that Exhibit 39 [holster and bullets] just "blows" the theory that Foster got the gun earlier from Payne as security for the bond fee and urged the jury to examine the holster and bullets. 2 He asked,
The prosecutor...
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