State v. Chunn

• Decision Date: 18 November 1985
• Docket Number: No. 14079,14079
• Citation: 701 S.W.2d 578
• Parties: STATE of Missouri, Respondent, v. James CHUNN, Appellant.
• Court: Missouri Court of Appeals

Page 578

701 S.W.2d 578

STATE of Missouri, Respondent, v. James CHUNN, Appellant.

No. 14079.

Missouri Court of Appeals,

Southern District,

Division Three.

Nov. 18, 1985.

Application to Transfer Denied Feb. 18, 1986.

Kenny C. Hulshof, Asst. Public Defender, Jackson, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

James Chunn ("defendant"), tried as a persistent offender, § 558.016.3, RSMo Cum.Supp.1983, was found guilty by a jury of the class C felonies of burglary in the second degree, § 569.170, RSMo 1978, and stealing property of the value of at least $150, § 570.030, RSMo Cum.Supp.1983. The trial court sentenced defendant to 15 years' imprisonment for each offense, ordering the sentences to run concurrently.

Defendant challenges the sufficiency of the evidence to support the verdicts, and he charges the trial court with error in failing to grant a mistrial when the jury submitted a written inquiry to the court while the jury was examining the State's exhibits during a recess prior to the presentation of defendant's evidence.

In determining whether there was sufficient evidence to support the verdicts, we view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences to be drawn from the evidence, and we ignore contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The test is whether the evidence, so viewed, is such that a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979). Inasmuch as this is a circumstantial evidence case, the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. State v. Goddard, 649 S.W.2d 882, 884 (Mo. banc 1983). However, the circumstances need not be absolutely conclusive of guilt, nor must they demonstrate impossibility of innocence--the mere existence of other possible hypotheses is not enough to remove the case from the jury. Id.

Viewed in accordance with those precepts, the evidence establishes that on Sunday, June 5, 1983, Audra Leek, a widow, left her home, 1812 East Parkview, Caruthersville, where she resided alone, to go on a vacation. During Mrs. Leek's absence, her daughter, Shirley Powell, went by Mrs. Leek's home at intervals to pick up the mail and check the condition of the house. Mrs. Powell made such a visit on Wednesday, June 8, finding everything in order.

Mrs. Powell returned to her mother's home Friday, June 10, shortly after 5:00 p.m., and discovered that "the back door underneath the carport" had been broken open. Mrs. Powell entered and observed that the house had been ransacked and that her mother's jewelry boxes were missing. Mrs. Powell notified the Caruthersville police.

The next day, June 11, Mrs. Powell received a phone call from her daughter-in-law, who had heard a news broadcast that morning about the burglary. The daughter-in-law informed Mrs. Powell that she had seen a diamond necklace in the possession of Gary Hatley, a young man employed at a Caruthersville pool hall operated by the daughter-in-law's parents.

Mrs. Powell, accompanied by her husband, went to the pool hall, confronted Hatley, and asked to see the necklace. Hatley stated it was at his house, but that he would get it.

Hatley departed, returned with the necklace, and showed it to Mrs. Powell and her husband. They identified it as the property of Mrs. Leek and informed Hatley that Mrs. Leek's home had been burglarized.

Mrs. Powell then asked Hatley where he had gotten the necklace, and he replied, "[F]rom a guy."

Mrs. Powell warned Hatley that if she did not get the remainder of her mother's property back, she would inform the police that Hatley had the necklace. Hatley said he would see what he could do.

He then made some phone calls, after which he asked Mrs. Powell if she would pay $10 for the return of her mother's property. Mrs. Powell agreed and Hatley was handed $10. He then departed, returning some 20 minutes later with a pillowcase containing some jewelry. Mrs. Powell identified the pillowcase and the jewelry as her mother's, but noted that the pillowcase did not contain all of the missing items. Mrs. Powell and her husband then took Hatley, the necklace, the pillowcase, and its contents to police headquarters.

At trial, Hatley, testifying as a State's witness, revealed that he had known defendant about 8 years, and that on Friday evening, June 10, 1983, he (Hatley) and defendant were drinking beer in the backyard of the home of defendant's mother. Hatley recalled defendant saying, "I've gotta go get somethin'," or, "I'm goin' to get somethin'," or words to that effect.

Then, according to Hatley, defendant "went up the alley." Defendant reappeared a few minutes later, carrying a pillowcase. Hatley watched as defendant removed "assorted necklaces, a watch, just assorted jewelry" from the pillowcase.

Hatley testified he asked defendant for one of the items, a diamond necklace, and that defendant gave it to him. As defendant did so, Hatley recalled defendant saying, "If you get caught with it, it's your ass." Hatley "figured" the necklace was stolen.

The next day, Hatley was "showing off" the necklace at the pool hall, saying he had bought it in Caruthersville for his girl friend. This necklace was the one Hatley showed Mrs. Powell and her husband when they confronted him.

Hatley testified that defendant was the person he phoned in response to the Powells' demand for the return of the remainder of Mrs. Leek's jewelry.

Describing those calls, Hatley stated that defendant "hung up on me the first time." Hatley phoned again, and defendant terminated the call saying, "Man, I think you're tryin' to mess me around."

Hatley phoned a third time, explaining to defendant: "Well, I'm fixin' to go to jail," you know, "I need the stuff back," you know, "to keep me out of trouble."

Defendant's reply, according to Hatley, was: "What's it worth to you?"

Hatley answered that it was worth a lot because he would be jailed if the items were not recovered.

According to Hatley, defendant said, "Bring me $10.00 and I'll give it back to you."

Hatley then obtained the $10 from the Powells, drove to the home of defendant's mother, entered, and was given the pillowcase containing the jewelry by defendant. Hatley handed defendant the $10 and returned to the pool hall, surrendering the pillowcase and its contents to the Powells.

After accompanying the Powells to the police station, Hatley gave the police a statement implicating defendant.

Lisa Dale Roberts, a teenager who resided with her parents at 1808 East Parkview, Caruthersville, in June of 1983, testified that their home was next door to Mrs. Leek's. Lisa, who was acquainted with defendant, testified that he, at that time, resided at the home of his mother, half a block from Mrs. Leek's home.

Lisa recalled that in June, 1983, after the burglary of Mrs. Leek's home, defendant gave her a "turquoise and silver bracelet," from which one of the stones was missing. Defendant did not tell Lisa where he had gotten the bracelet, nor did he caution her not to wear it when she went to Mrs. Leek's home. Lisa, who had learned from her father about the burglary of Mrs. Leek's home, gave the bracelet to her father, who turned it over to the police. Lisa identified the bracelet at defendant's trial.

Lieutenant Marvin Dye of the Caruthersville police department was at headquarters on June 11, 1983, when the Powells arrived with Hatley and the jewelry. Photographs were taken of the jewelry, and an investigation was commenced regarding the burglary. As a result of the investigation, the police began looking for defendant.

On September 13, 1983, the police received a "tip" that defendant was in Caruthersville at 603 Eastwood, "the Hatley residence." Lieutenant Dye, Officer Harvey Moore, Jr., and an Officer Mansfield went there for the purpose of arresting defendant.

Lieutenant Dye and Officer Mansfield entered, finding several people inside, including defendant's sister, Linda Hatley, and her husband, Ronnie Hatley. Lieutenant Dye requested permission to look in the bathroom, but his request was denied.

About that time, Officer Moore, positioned at the rear of the house, saw defendant come out a back window. Officer Moore ordered defendant to halt, but defendant began running. Officer Moore pursued defendant on foot and, during the pursuit, fired a shot in the air. Defendant, however, continued running. After a chase of some four blocks, Officer Moore overtook defendant and subdued him.

Gary Hatley testified that one night after defendant was arrested, he (Hatley) was walking past the county jail and defendant "hollered" at him. Hatley testified, "I don't recall his exact words, but it was somethin' like, 'You snitch, you better not show up in court,' or somethin' like that."

On Friday, October 26, 1984, six days before trial, ¹ Linda Hatley, defendant's sister, received a letter addressed to her husband, Ronnie. The letter, written by defendant, was dated "10-23-84" and had been sent to the home of Linda's mother in Caruthersville. The letter is set out marginally. ²

At trial, Mrs. Leek identified as her property the diamond necklace recovered from Gary Hatley on June 11, 1983, by Shirley Powell and Shirley's husband. Mrs. Leek also identified the pillowcase and...