State v. Burnfin, WD

• Court: Missouri Court of Appeals
• Writing for the Court: CLARK
• Citation: State v. Burnfin, 771 S.W.2d 908 (Mo. App. 1989)
• Decision Date: 06 June 1989
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. James Dean BURNFIN, Appellant. 40732.

Page 908

771 S.W.2d 908

STATE of Missouri, Respondent, v. James Dean BURNFIN, Appellant.

No. WD 40732.

Missouri Court of Appeals Western District.

June 6, 1989.

Melinda K. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., Robert V. Franson, John Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and CLARK and FENNER, JJ.

CLARK, Judge.

James D. Burnfin was convicted by a jury of the offenses of second degree murder and armed criminal action and he was sentenced to terms of fifteen years and five years, to be served consecutively. On this appeal, Burnfin raises seven points of trial error, the most persuasive of which concern the excesses of the prosecuting attorney allowed by the court during closing argument and the evidence, erroneously admitted, upon which such arguments were predicated. We conclude Burnfin did not receive a fair trial as required by the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, §§ 10 and 18(a) of the Missouri Constitution. The conviction is therefore reversed.

The events leading to the death of the victim, Eddie Cecil Robinson, Jr., on August 30, 1987, were, in the main, undisputed. In the late hours of Saturday, August 29, Robinson, his cousin, Zachary Millentree, and others of their friends were at the courthouse square in Richmond drinking beer. Burnfin, his friend, Chris Trego, and two girls drove up to the square and parked, Trego driving, Burnfin on the passenger's side of the front seat and the girls in the back. The girls left the car to speak with their friends, who were also gathered at the square, and Burnfin, Trego and another companion who joined them remained in the car listening to music.

The Burnfin group was observed by Robinson and Millentree, and the latter was dispatched by Robinson to demand repayment from Burnfin of a $1.50 debt. Burnfin responded that he had no money and Millentree returned up the courthouse steps to report this to Robinson. At this point, Robinson went himself to the car and approaching the driver's side, demanded payment. Burnfin repeated his denial of funds and Robinson reached in the car window, across Trego, and struck Burnfin in the face with his hand. The evidence was in dispute as to whether this was a slap or a blow from Robinson's fist.

Robinson then walked around the front of the automobile to the passenger side and leaned through the open car window. Burnfin reached for a knife which he knew Trego kept under the car seat and struck out at Robinson. Two wounds were inflicted on Robinson, one to the throat and the other to the abdomen. According to subsequent medical evidence, the throat wound was almost instantly fatal because the esophagus and the right jugular vein were severed. The actual cause of death was massive blood loss. The abdominal wound was not the cause of any significant injury.

Burnfin immediately fled the scene but soon returned, admitted he was the person who had caused the injury to Robinson, and he was taken into custody. He gave a statement to the police generally conforming to the summary stated above, but contending that he struck out at Robinson because he was fearful of attack. ¹ According to witness Millentree, Burnfin uttered racial slurs to Robinson and to Millentree. On the date of the homicide, Burnfin was age 17 and Robinson was 23. Robinson was a large individual who stood six feet four inches tall and weighed two hundred fifty pounds. Burnfin was of lesser height and weight.

The defense, submitted to the jury under appropriate instructions, was mental disease or defect and self-defense.

I.

Appellant's first two points of error complain of the prosecutor's closing argument and the erroneous admission of evidence to which the prosecutor referred in his argument. The asserted grounds of error are that the prosecutor used evidence of an unrelated and uncharged crime to suggest that appellant was a law offender, that he used information developed by the physician who performed the mental examination to argue appellant's guilt and that he conducted a personal attack on defense counsel. We consider these assertions in sequence.

A.

During the state's opening remarks to the jury, the prosecutor stated that the evidence would show Burnfin and his companions were at the courthouse square smoking dope. The defense objected, contending that reference to use of marijuana impermissibly injected evidence of an unrelated crime into the case. The court summarily overruled the objection. During the later questioning of state's witness Millentree, he was permitted to testify, over objections by the defense, that he observed Burnfin and others smoking marijuana as they were seated in Trego's automobile. In closing argument, the prosecutor reminded the jury of Millentree's testimony that Burnfin had been smoking dope and, although given the opportunity to do so, Burnfin had not denied it. He also pointed out that the post mortem examination of Robinson had showed no drugs present in his system. Objections to this line of argument were overruled.

A criminal defendant has the right to be tried only for the crime with which he is charged. Admission of evidence of unrelated crimes is prejudicial because it may result in a conviction founded upon crimes of which the defendant was not accused. State v. Trimble, 638 S.W.2d 726, 732 (Mo. banc 1982), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1031 (1983). There are situations in which evidence of other crimes may be admitted in support of such issues as motive, intent, the absence of mistake or accident, common scheme or plan or the identity of the person charged. State v. Collins, 669 S.W.2d 933, 936 (Mo. banc 1984). The test for admission of evidence of other crimes is whether the evidence logically tends to prove a material fact in issue. State v. Reed, 447 S.W.2d 533, 534 (Mo.1969).

In State v. Owen, 753 S.W.2d 114 (Mo.App.1988), the defendant was charged with sale of marijuana. The court reversed the conviction because the state had introduced evidence that twelve days earlier, the defendant had arranged for an undercover officer to make a different purchase of marijuana. That evidence had "little" probative value and was so highly prejudicial that it should not have been received. The same rationale was applied to reverse a conviction for the unlawful sale of marijuana in the earlier case of State v. Reed, supra. In State v. Kesler, 745 S.W.2d 846 (Mo.App.1988), the defendant was charged with driving while intoxicated. The conviction was reversed because the trial court failed to exclude evidence that the defendant had previously been convicted of driving while intoxicated.

In the present case, the fact that Burnfin had been smoking marijuana the night in question had no bearing whatever on any of the facts in issue and had no tendency to prove Burnfin guilty of homicide. The sole purpose of the prosecutor for injecting this irrelevant fact in the case, as demonstrated by the content of his closing argument, was to portray Burnfin as a dope user and to thereby prejudice his cause before the jury. It was error to have admitted the evidence over objection and to have permitted the prosecutor to argue the criminality of marijuana use as a basis to convict Burnfin of the homicide.

B.

The defense had called Dr. Nicholas Bartulica to testify in support of Burnfin's defense of diminished capacity. Bartulica had performed a statutory mental examination of Burnfin in September, 1987, the month following the death of Robinson. On cross-examination, the prosecutor questioned Bartulica about details of Burnfin's medical history including prior admissions some years before to Western Missouri Mental Health Center and Woodson Children's Center. The defense objected that the questioning was being pursued for an improper purpose and not to test the diagnosis of mental disease or defect. The trial court overruled the objection.

In closing argument and using the information from Burnfin's medical case history as related by Dr. Bartulica on cross-examination the prosecutor was permitted, over objection by the defense, to tell the jury that in determining Burnfin's guilt of the homicide, it should consider Burnfin's aggressive acts in the past, his experience with knives and his propensity to commit assaults. Among the prosecutor's remarks were: "Mr. Burnfin has got plenty of experience with knives; he had a 14 inch German knife, that he took to school with him; he stole a knife from the cafeteria of St. Joe Mental Hospital, sharpened it and kept it in his rooms; [he] played with nitroglycerin bombs; [he] makes homemade bombs, carries weapons to school, threatens to kill his mother and sister, ² takes a pitchfork after his stepfather."

Section 552.020.12, RSMo 1986, provides that no statement made by the accused in the course of any examination made upon the subject of the accused's mental capacity shall be admitted in evidence on the issue of guilt in any criminal proceeding. MAI-CR3d 306.04, read to the jury in this case, includes the caution that statements made to and information received by the doctor during the inquiry into the mental condition of the defendant should not be considered as evidence that the defendant did or did not commit the acts charged.

It is improper for counsel to argue...