State v. Casey, 13631

• Decision Date: 11 December 1984
• Docket Number: No. 13631,13631
• Citation: 683 S.W.2d 282
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Sammy Lee CASEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 282

683 S.W.2d 282

STATE of Missouri, Plaintiff-Respondent, v. Sammy Lee CASEY, Defendant-Appellant.

No. 13631.

Missouri Court of Appeals,

Southern District,

Division Three.

Dec. 11, 1984.

Motion for Rehearing or to Transfer to

Supreme Court Denied

Dec. 28, 1984.

John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Wesley D. Coleman, Asst. Public Defender, Caruthersville, for defendant-appellant.

TITUS, Judge.

As a prior offender, defendant was court-tried and adjudged guilty of the class A felony of first degree assault by attempting to kill or cause serious physical injury to Charles Versey by shooting him with a deadly weapon. § 565.050-1. (2) and 2. ¹ Defendant was sentenced to imprisonment for a term of 15 years to be served consecutively to another already imposed sentence. Defendant appealed.

In substance, the evidence favorable to the state was that victim Versey went into a Caruthersville tavern and poolroom near 11 p.m., July 15, 1983. After standing at the bar a few minutes, Versey noticed defendant staring at him from a table in the saloon section of the establishment. Versey moved to another part of the bar, ordered a drink and soon saw that defendant had left the tavern. Another witness observed defendant, once he left the building, exchange a red T-shirt for a white one and place a ski mask over his head and face before re-entering the bar. Once again inside the tavern, the masked man produced a pistol and shot Versey in the jaw and left side of the body before departing the premises. The operator of the establishment was in the poolroom section of the building when he heard the gunshots. He went outdoors through the poolroom door where he saw defendant go towards the corner of the building, stop and remove the head covering before looking back. Four days later on July 19, 1983, police officers went to defendant's place of employment to arrest him for shooting Versey. Upon seeing the officers approaching, defendant took flight only to be apprehended at gunpoint some 50 feet from where he commenced his run. More evidence will be later recast when necessary to comprehend the two points relied on presented in this appeal.

Defendant's first point relied on has this factual background. On September 14, 1983, defendant filed a "Motion for Ballistics Test" whereby he prayed the state be ordered to deliver to the SEMo Crime Laboratory for ballistics testing the bullet slugs removed from Versey's body and the pistol taken from defendant when he was arrested. The motion also asked that defendant be furnished a report concerning the result of such testings. The motion was granted September 20, 1983, and the state delivered the necessary items to the laboratory. However, neither the state nor the defendant had received such a report when the cause was tried December 14, 1983. Defendant candidly admits in his brief that the state did not deliberately withhold the results of the testing, but does accuse it of not being diligent enough to have the results available by trial time.

Before any evidence was received on the morning of trial, defense counsel addressed the court: "Judge, I think we need some ruling from you on what we're going to do about this ballistics test.... I feel that the defendant would be justified ... in asking for a continuance. I think that if we could come to an arrangement with the State whereby no mention of the gun or the attendant circumstances in which the gun was obtained by the State, be--not be permitted to be entered into evidence, I believe we could proceed here this morning." Following extended colloquy between court and counsel, the court repeatedly ruled the state was to make no reference that defendant was possessed of a gun at the time of his arrest and that such a fact would not be considered by the court in determining defendant's guilt or innocence. After the prosecutor told the court he intended to show the circumstances of the arrest, sans any mention of defendant being armed, to "Show flight", defense counsel, without stating any meaningful reasons, again stated he was asking "the Court to continue this case until we get ... something from the crime lab." Nevertheless, after being told again and again by the trial court the state would not be permitted to offer any evidence "concerning any weapon that the defendant had ... when he was arrested," defendant's counsel in a continuing and incomprehensible manner concluded: "Well, in effect, Judge, I think the prosecution and I have entered into a stipulation, so to speak, maybe.... We're going to forget the gun but I would not enter into anything of that nature if he proves that--fleeing. Because then I have the right to introduce the evidence about the gun if I choose to." At trial, in accordance with the court's ruling, supra, no mention was made of the gun found on defendant when he was arrested.

In toto, defendant's first point relied on reads: "The trial court erred in that it did not grant the defendant a continuance because the failure to do so resulted in the defendant not having available to him the results of a ballistics test, which the court had ordered the State to have conducted, of a pistol found on defendant upon arrest for the instant charge, thereby precluding the defendant from being able to introduce the pistol and ballistics results into evidence to show that defendant's pistol was not the one used in the offense for which he was on trial and to rebut State's evidence of flight."

Initially we observe, sua sponte, anent the point relied on two assumptions wholly unsupported by any evidence. The first unfounded assumption is that the ballistics test, the results of which were never known, did, in fact, reveal that the pistol taken from defendant upon arrest was not the one used in the shooting. Also, even assuming the pistol used in shooting Versey and that found on defendant when arrested were different, the second unfounded presupposition in the point is that such fact, if so, would rebut the state's evidence of attempted flight at the time of arrest. The question of whether defendant did or did not attempt to flee from the arresting officers, would not be resolved by showing that a gun different from that taken from defendant was used in the shooting.

Rule 24.09 mandates that "An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the ...