State v. Dunlap

• Decision Date: 28 January 1986
• Docket Number: No. 49419,49419
• Citation: 706 S.W.2d 272
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Anthony DUNLAP, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 272

706 S.W.2d 272

STATE of Missouri, Plaintiff-Respondent, v. Anthony DUNLAP, Defendant-Appellant.

No. 49419.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 28, 1986.

Motion for Rehearing and/or Transfer

Denied March 11, 1986.

Application to Transfer

Denied April 15, 1986.

Henry Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.

Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

REINHARD, Judge.

Defendant was charged with two counts of assault in the first degree. Under Count I he was charged with shooting his wife and under Count II he was charged with stabbing his three year old stepson. The jury found defendant guilty under both counts and assessed punishment at twenty years imprisonment under Count I and twenty-five years under Count II. The court sentenced defendant in accordance with the verdict of the jury, the sentences to run concurrently. Defendant appeals. We affirm.

At the time of the offense defendant lived in an upstairs flat with his wife of one and one half years, Pamela Dunlap, her three year old child, Nesby Moore IV, and Pamela's teenage cousin Kevin Labriado. Huddy Woods lived in the apartment below them.

According to the testimony of Pamela Dunlap and Kevin Labriado, defendant became angry that morning, upon finding that Kevin was wearing defendant's pants. He ordered Kevin to take off his pants, and punched him in the face and chest. He awakened his wife, saying "Kevin has gotten into my clothes and I'm not going to have this anymore." She walked into the living room, while defendant stood in the hallway saying that he had had enough, and that Kevin would have to leave the house. Defendant appeared to be "high" on drugs and "in hysterics." Earlier that morning he had been standing in bed, singing, dancing, and saying that he had seen God, that this was the end of the world, and that they were all going to hell. He had been smoking marijuana soaked with PCP on the previous night. Pamela told Kevin to call defendant's mother, and went to her bedroom to get money for the phone call. Defendant entered the bedroom, pulled his pistol from under the mattress, and aimed at her. As she ran from the room she heard the trigger click twice. Kevin also ran, reaching the backstairs ahead of her. Defendant fired four shots as they ran downstairs, hitting Pamela, who blacked out on the steps. Kevin escaped unscathed. When Pamela regained consciousness she found defendant sitting beside her, holding Nesby, his stepson. He said "I have gotten whacked. I done killed my whole family." At her request, defendant let Nesby go, and she saw the baby climb upstairs.

Huddy Woods, defendant's neighbor, testified that he heard four shots, and saw Kevin run by. Defendant then burst into his kitchen saying, "I done messed up. What am I going to do." He told Woods to kill him. Woods refused, whereupon defendant grabbed a carving fork and stabbed himself in the abdomen. Defendant then ran back upstairs. Woods called the police, who arrived shortly thereafter. The police found defendant standing in his apartment, carrying Nesby. He said that he had "messed up" and killed his family. Nesby had been stabbed in the abdomen. The police found Pamela lying on the backstairs, yelling for help. A loaded rifle belonging to defendant was found on the backstairs. Also recovered from the apartment was defendant's revolver, from which five rounds had been fired, and a box containing marijuana.

Defendant testified that on the night preceding the incident he and his wife were smoking marijuana prepared with a half ounce bottle of PCP. He smoked more than his usual quantity, sharing two "joints" with his wife, and then smoking four "joints" alone as he watched television. He remembers nothing of what happened after that point. He first learned of the incident when he awoke in the hospital.

The defense also called a psychologist, Dr. Michael Armour, who performed a court-ordered mental evaluation of defendant based on an interview, the police report of the incident, and a social worker's follow-up interview. Armour testified that when taken in quantity, the drug Phencyclidine (a/k/a PCP, whack, angel dust) could produce hallucinations or delusions, and paranoid, impulsive, and sometimes violent behavior. Defendant told Armour that he normally smoked one "stick" of marijuana soaked with PCP per day. Armour determined that defendant was suffering from a mental disease or defect, in that he was temporarily psychotic at the time of the crime, due to his ingestion of the drug. Armour concluded that he was unable to conform his conduct to the requirements of the law, or to appreciate the nature, quality, or wrongfulness of his actions.

Defendant asserts four grounds for reversal. He contends that the court erred in: (1) admitting rebuttal evidence concerning defendant's prior arrests; (2) submitting verdict directing instructions which included a general converse, although the defense of mental disease or defect excluding responsibility was used; (3) submitting verdict directing instructions which did not cross-reference the instruction on the defense of intoxication; and (4) failing to instruct the jury to disregard certain remarks made during closing argument.

In defendant's first point on appeal he asserts that:

The trial court erred by overruling appellant's objections to the state's rebuttal evidence of the records of his prior arrests on charges of assault in the first degree and unlawful use of a weapon because evidence of arrests was irrelevant to any issue in the case, inadmissable to impeach appellant's credibility, and constituted evidence of an unrelated crime.

Defendant is correct in asserting that as a general rule it is impermissible to impeach the credibility of a witness by inquiring into prior arrests. State v. Johnson, 586 S.W.2d 808, 809 (Mo.App.1979). Defendant admits, however, that his counsel asked the question, "Do you have a criminal record, Tony?" and that his response, "No, I don't," opened the door to cross-examination on this issue. Therefore, he makes no objection to the cross-examination as to his prior arrests. He contends, however, that this being a collateral issue, the state was bound by his responses on cross that he had not been arrested on charges of assault in the first degree and the unlawful use of a weapon, and that admission of rebuttal testimony tending to disprove these statements constituted error.

Both sides agree that if a collateral issue is brought up for the first time by the state, it is bound by the defendant's answers. See State v. Ballard, 657 S.W.2d 302, 306 (Mo.App.1983). However, where defendant introduces the issue of his criminal record, and upon cross-examination denies previous arrests, we conclude that the state may produce rebuttal evidence to impeach defendant's denial.

An excellent analysis of the law on this issue may be found in State v. Panter, 536 S.W.2d 481 (Mo.App.1976). In an opinion authored by Judge Welborn, the court stated:

There can be no doubt that the general rule prohibits evidence of an accused's involvement in another crime. Likewise, it is settled that where a defendant takes the stand and, for purposes of impeachment, is cross-examined on collateral matters, his answers to such inquiries are conclusive, and they may not be the subject of rebuttal testimony.

Id. at 485.

However, the opinion then examined the Missouri Supreme Court cases of State v. King, 342 Mo. 975, 119 S.W.2d 277 (1938) and State v. Wilson, 320 S.W.2d 525 (Mo.1959), which carved out an exception to the rule on rebuttal testimony for cases in which the defendant first introduces the collateral issue on direct examination. Extending this exception to cases in which the defendant volunteers information on a collateral issue during cross examination, the court said:

It may be well to note that the rule of the King and Wilson cases is not universally applied. Wigmore is critical of the rule and cites cases in other jurisdictions reaching a contrary result. III A Wigmore on Evidence (Chadbourn Rev.) § 1007, p. 979 (1970). However, this court is obliged to follow the most recent pronouncement of the Supreme Court and King and Wilson are such.

State v. Panter, 536 S.W.2d at 486.

Our Court considered the admissibility of rebuttal testimony on a collateral issue in State v. Cheesebrew, 575 S.W.2d 218 (Mo.App.1978). Judge Stewart, speaking for our Court, stated:

It is the rule in Missouri that when a defendant in a criminal trial is cross examined with respect to a collateral matter for purposes of impeachment "his answers ... are conclusive and .. may not be the subject of rebuttal testimony". State v. Panter, 536 S.W.2d 481, 485 (Mo.App.1976). When a collateral issue is first tendered by the defense in direct examination or is volunteered on cross examination it becomes a proper subject for rebuttal. State v. King, 342 Mo. 975, 119 S.W.2d 277 (1938); State v. Panter, supra.

Id. at 223.

Shortly after our decision in Cheesebrew, the Supreme Court of Missouri handed down an opinion regarding the limits of cross-examination on collateral issues in State v. Dunn, 577 S.W.2d 649, 653 (Mo. banc 1979). However, our review of Dunn reveals nothing that affects the exception previously announced in King and Wilson, followed by the Western District in Panter, and by our court in Cheesebrew.

Defendant principally relies on our case of State v. Clayburne, 592 S.W.2d 282 (Mo.App.1979). In Clayburne, defendant stated on direct examination that he did not have a gun during the evening in question, nor did he own a gun. On cross-examination defendant stated "correct" when asked whether he "had never owned a gun" and "had never had a gun before." The prosecutor then questioned him about a previous occasion on which he had a gun in his possession, which he denied. The state was then permitted to introduce rebuttal...