State v. Denmon

• Decision Date: 08 November 1971
• Docket Number: No. 1,No. 56327,56327,1
• Citation: 473 S.W.2d 741
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Maurice DENMON, Defendant-Appellant
• Court: Missouri Supreme Court

Page 741

473 S.W.2d 741

STATE of Missouri, Plaintiff-Respondent, v. Maurice DENMON, Defendant-Appellant.

No. 56327.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1971.

As Modified on Court's Own Motion Dec. 13, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 13, 1971.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

John E. Burruss, Jr., Hendren & Andrae, Jefferson City, for appellant.

LAURANCE M. HYDE, Special Commissioner.

Defendant was convicted of offering violence to an officer of the State Department of Corrections in violation of § 216.460. He was tried as a second offender under § 556.280, found guilty by the jury and sentenced by the court to three years in the custody of the Department of Corrections (all statutory references are to RSMo and V.A.M.S.). We affirm.

The State's evidence was that guard officers Krieg and Holt came to defendant's cell in maximum security, it being their duty to take prisoners there to a barber chair for a shave and haircut and also for a shower. Holt and Krieg said Holt asked defendant to come out of his cell. Defendant was standing in his cell with a coffee cup in his right hand. Holt said he told defendant: 'It is time for a haircut and shave.' Defendant stood there so, after five or six minutes, Holt said he asked him again but defendant gave no answer and did not move. Holt, not armed, entered the cell (he said to cause defendant to come out). Holt said: 'Sometimes the presence of an officer in the cell will cause them to come out.' Holt said: 'I got one or two steps in and he swung at me.' He said defendant struck him, first with his left hand then, after dropping the cup, with his right. Krieg entered the cell with a backjack which Holt took and according to defendant struck him with it. Holt lost a front tooth from being struck by defendant. Krieg said Holt did not touth defendant until after defendant struck him.

Defendant said Holt and Krieg were talking to another officer, Sergeant Wade, in front of his cell before Holt came in his cell. Defendant said they did not ask him to come out but he also said: 'This morning they came by for a shower.' It was shown that defendant's cell was at the far end of the group of cells in the maximum security; that the officers (Holt and Krieg) had brought others out that morning starting at the other end; and that defendant 'was the last man before lunch.' Defendant said he would have come out if they had asked him but he also said: 'I have an option when to shave and shower.' Defendant said that Holt entered his cell and said: 'We waited long enough for you Denmon.' Defendant said Holt then walked behind him and grabbed him while he was leaning on his bed holding the cup. His description of what Holt did was:

'He came in and came behind me, and Officer Krieg was with him and stood in front of me, approximately three feet inside my cell, three feet in front of me. * * *

'Q. When he grabbed you, what do you mean by that? Tell us how. With his hands? What part of his body touched what part of your body?

'A. I can't state specifically what part of my body he placed his hands on. He was using his hands and tried to use all his weight to force me out of the cell. * * *

'Q. After Officer Holt grabbed you, what did you do then?

'A. I hit him. * * *

'Q. Why did you hit him?

'A. Because he became physically aggressive and violent with me.'

Defendant claims error in refusing to give an instruction on self-defense, citing State v. Tull, Mo.Sup., 375 S.W.2d 100; State v. Kinard, Mo.Sup., 245 S.W.2d 890; State v. O'Kelley, Mo.Sup., 213 S.W.2d 963; State v. Stallings, Mo.Sup., 33 S.W.2d 914; Kansas City v. Mathis, Mo.App., 409 S.W.2d 280; § 216.445. Mathis involved resistance to an unlawful arrest. Section 216.445 prohibits any officer to 'inflict any blows whatever on any inmate unless in self-defense or to suppress a revolt or insurrection.' Defendant did not claim any blows on him until after he struck Holt. Stallings, O'Kelley and Kinard do not involve similar situations and are cited for statements about the right to instructions on any theory supported by evidence. State v. Tull was, as this is, a prosecution of a prisoner under § 216.460, in which we held the evidence was insufficient to require the giving of a self-defense instruction. In that case, the defendant struck a prison officer who was searching him (apparently for drugs), when the officer 'got his arm and pulled it over closer to him.' Defendant then ran to his cell, dumped 'an envelope of stuff' down the toilet stool and struck the officer again. We said: '(O)ur conclusion is that all the evidence shows his use of violence to prevent an officer from performing his duty, similar to resisting a lawful arrest, and not self-defense.' The situation here seems similar.

In the more recent case of State v. Goodman, Mo.Sup., 425 S.W.2d 69, the defendant struck officers at a prison farm who were taking him from a dairy barn to put him in segregation because he had been drinking. We held provisions of § 216.455(1), relied on concerning a hearing on a claim of violation of rules, 'do not entitle prisoners to resort to self help and to resist the directions of the officers.' In this case, it appears from defendant's own testimony that he must have known why the officers were there and we hold the court properly refused a self-defense instruction.

Defendant also claims error in receiving in evidence the penitentiary records showing that defendant was serving a sentence of 15 years for the offense of second degree murder. It was, of course, necessary for the State to show defendant was lawfully held as prisoner. In State v. Goodman, 425 S.W.2d, l.c. 70, this was done by showing: 'Defendant was serving a sentence of three years on a charge of assault with intent to kill with malice.' When the State offered the record of defendant's conviction and sentence, defendant's counsel said he would stipulate 'that on March 10, 1970 he was an inmate of the Missouri State Penitentiary.' He later added 'lawfully confined' but the State did not agree to stipulate and the record of defendant's conviction was received in evidence. Defendant argues the provision of the Second Offender Act, § 556.280(2) that evidence of the prior conviction 'shall be heard and determined by the trial judge, out of the hearing of the jury,' as a reason for not receiving the record of his conviction in evidence. We ruled a similar contention in State v. King, Mo.Sup., 375 S.W.2d 34, 39, where the defendant likewise was charged under § 216.460, saying: 'Here the prosecution was for an offense which could be committed only by a prisoner of the Department of Corrections. Evidence to show that the appellant was within the purview of the statute was correctly admissible. The best evidence of such fact would necessarily be the record of his conviction and testimony concerning his confinement thereunder. * * * The procedure of the Habitual Criminal Act does not preclude the presentation to the jury of evidence of a prior conviction insofar as such evidence is relevant to some issue other than the application of the Habitual Criminal Act.' We hold the court was not required to compel the State to accept the proposed stipulation and that the record was admissible in evidence. Furthermore, the jury knew from the voir dire examination that defendant was a convict and would have been left to speculate that his offense and sentence could have been greater than it was.

In his argument to the jury, defendant's counsel commented on the fact that the State did not call Sergeant Wade as a witness, calling him an invisible witness and saying:

'I think you can infer there was a chance this man saw and heard things important to the trial of this case. That being so, it is incumbent on the State...