State v. Cook

• Decision Date: 05 December 1977
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Edward Thomas COOK, Appellant. 29188.
• Court: Missouri Court of Appeals

Page 299

560 S.W.2d 299

STATE of Missouri, Respondent, v. Edward Thomas COOK, Appellant.

No. KCD 29188.

Missouri Court of Appeals, Kansas City District.

Dec. 5, 1977.

Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.

Application to Transfer Denied Feb. 8, 1978.

Kranitz & Kranitz, Hugh D. Kranitz, Ronald M. Sokol, St. Joseph, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P. J., and SOMERVILLE and WASSERSTROM, JJ.

SOMERVILLE, Judge.

Two strangers were caught in a whirlpool of senseless events during the early morning hours of October 5, 1975, in Buchanan County, Missouri, resulting in the homicidal death of one and imprisonment of the other for fifteen years. One of the strangers, Edward Thomas Cook (defendant), was charged by information with murder in the second degree for killing the other stranger, Robert Allen Pistole (victim).

The charge was first tried to a jury in the court of Judge Frank D. Connett, Jr. and ended in a hung jury. Thereafter, defendant waived a trial by jury and the cause was submitted for trial to Judge Connett upon the following stipulation, "that the evidence which was adduced at the first trial in this matter will be presented to the court in the form of a transcript, with two additional stipulations ¹, and waive any further hearing in the matter." Although neither party requested findings of fact and declarations of law, Judge Connett made the following general and special findings ² which have the force and effect of the verdict of a jury ³:

"This Court finds beyond a reasonable doubt that on the 5th day of October, 1975, in the County of Buchanan, State of Missouri:

1. That the defendant caused the death of Robert Allen Pistole by shooting him with a .22 caliber single-action revolver;

2. The revolver was not fired accidentally;

3. The defendant intentionally fired the revolver in the direction of the deceased;

4. That the defendant did this while in the act of exhibiting a deadly and dangerous weapon in a rude, angry and threatening manner in the presence of Robert Allen Pistole;

5. The defendant was not acting in lawful self-defense when he pointed or fired the revolver at the deceased;

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED by the Court that the defendant Edward Thomas Cook is guilty of murder in the second degree and punishment is fixed by the Court at imprisonment in the State Department of Corrections for a term of 15 years."

Defendant's motion for a new trial was overruled, allocution was afforded, judgment was entered, and sentence was pronounced accordingly.

The facts, abstracted to the extent permitted by the points presented for review, will now be set forth. On the evening of April 4, 1975, the victim attended a dance in St. Joseph, Missouri, sponsored by the Citizen's Band Radio Club. Following the dance, the victim accompanied Gary Carpentier to the latter's home. At approximately 1:30 A.M. on the morning of April 5, 1975, the two men were talking on a citizen band radio which Carpentier had in his home. While doing so they were verbally abused by an unknown person using gutter language on the "C.B." channel they were operating on. An argument ensued between the victim and the unknown person over the "C.B." broadcast channel culminating in an agreement to meet at a service station on the northwest corner of Belt Highway and Mitchell "to settle the dispute."

Gary Carpentier and the victim drove to the service station to keep the prearranged rendezvous in Carpentier's 1977 maroon Vega station wagon. The station wagon was equipped with a "C.B." radio. Carpentier and the victim waited at the service station anticipating the arrival of a brown pick-up truck which they erroneously believed contained the verbal assailant. Carpentier and the victim waited in vain for the arrival of a brown pick-up truck. Defendant arrived at the service station driving a white 1966 Chevrolet. He was accompanied by Philip DeRoin and several other buddies. Neither defendant nor DeRoin identified DeRoin as the victim's verbal assailant. While at the service station the victim, in the presence of defendant and DeRoin, stated that he was going to put some "speed knots" on the head of the person who had been verbally abusing him "over the air". Several other motor vehicles with "whip" antennas arrived at the service station. A police officer who arrived ordered all of the vehicles which had gathered there to disperse. When the Vega station wagon occupied by the victim left the service station it was followed by the white 1966 Chevrolet driven by defendant.

Carpentier and the victim returned to Carpentier's home. After their arrival they noticed the white 1966 Chevrolet cruising through the neighborhood. This prompted them to monitor several channels on the "C.B." radio in Carpentier's home. After doing so they concluded that the victim's verbal assailant was an occupant of the white 1966 Chevrolet. Carpentier and the victim again left the Carpentier home in the Vega station wagon. This time their destination was a bowling alley on the Belt Highway. As they traveled north on the Belt Highway they came in sight of the white 1966 Chevrolet which was also traveling north on the Belt Highway. They gave chase to the white 1966 Chevrolet. As they did so, it turned east off of the Belt Highway and onto Frederick Avenue. They too turned east onto Frederick Avenue and pulled up alongside the white 1966 Chevrolet. The victim was sitting in the right front seat of the Vega station wagon and defendant was driving the white 1966 Chevrolet. While the two vehicles were traveling east on Frederick Avenue, side by side, at a speed of approximately ten to fifteen miles per hour, the following occurred. The victim rolled down the window on the passenger side of the Vega station wagon and shouted, "You motherfuckers, you're going to get it now, you son-of-a-bitch." Carpentier and the victim had no weapons. Defendant reached under the seat of his car and picked up a loaded .22 caliber single action revolver which he owned. Holding the revolver by the butt, defendant stuck it out the window. The revolver was discharged and a bullet fired from it struck and killed the victim. After the fatal shot was fired, defendant "floorboarded" his car and fled the scene. He was eventually found in a service station "hiding under a mattress".

According to defendant he didn't mean to shoot the victim, "the gun just went off". He claimed he didn't have his finger on the trigger when the revolver fired and that it was discharged accidentally. Defendant further testified that while holding the revolver outside the window, DeRoin, who was sitting in the front seat of defendant's automobile, placed his arm in front of defendant's arm and then pulled it back and as he did so the revolver discharged. It is appropriate to note at this point that the parties stipulated that if DeRoin "were called to the stand, his testimony would be that at the time Robert Allen Pistole was shot, Philip DeRoin did not reach across in back or in front of the defendant."

A "firearm expert" called by the state testified that the weapon which fired the fatal shot was a single-action revolver; that it had five "hammer positions", the "fired" position, the "quarter-cocked" position, the "half-cocked" position, the "three-quarter-cocked" position, and the "full-cocked" position; that it had to be in the "full-cocked" position before it could be fired by means of pulling the trigger. He also testified that when the hammer was in the "fired" position, striking the muzzle or "back portion" of the hammer "with a sufficient amount of force" could cause the gun to fire. Although the witness demonstrated to the jury at the first trial what constituted a "sufficient amount of force", it is not reflected by or preserved in the record.

Six points are raised by defendant on appeal. In varying degree they are involved, lengthy, and vacillatory in terms of frame of reference. In several instances they are negatively posed. This court has undertaken the concededly difficult task of compressing and restating them for purposes of this opinion. Doing so has produced the following results. One: (a) the evidence is insufficient to support the trial judge's finding that defendant intentionally fired the revolver; and (b) under all the evidence defendant, as a matter of law, was acting in lawful self-defense when he fired the revolver at the victim. Two: (a) the evidence is insufficient to support defendant's conviction for conventional second degree murder because of the existence of provocation which reduced the homicide to manslaughter; and (b) the evidence is insufficient, generally speaking, to prove, and the trial court failed to find, all the requisite elements of conventional second degree murder. Third: As the general and special findings made by the trial judge show that defendant was found guilty of second degree felony murder, the information upon which defendant was tried failed to vest the trial judge with jurisdiction because it failed to allege an underlying felony. Four: The guilty verdict, as connoted by the general and special findings of the trial judge, is so vague and ambiguous that it would not bar defendant's subsequent prosecution for an underlying felony. ⁴ Five: Convicting defendant of second degree felony murder on the basis of a felony which was an integral part of the homicide "eviscerated" his defense of provocation and "negated" the requisite elements of conventional second degree murder. Six: As the general and special findings of the trial judge failed to affirmatively find all the requisite elements of conventional second degree murder, defendant was acquitted of conventional second degree murder and therefore entitled to have his conviction reversed outright or, at most, reversed and remanded for a new trial solely on manslaughter....