State v. Dunn

• Court: Missouri Court of Appeals
• Writing for the Court: Montgomery, P.J., Prewitt; Robert S. Barney
• Citation: State v. Dunn, 21 S.W.3d 77 (Mo. App. 2000)
• Decision Date: 07 June 2000
• Parties: (Mo.App. S.D. 2000) State of Missouri, Respondent, v. James L. Dunn, Appellant. 22711 0

21 S.W.3d 77 (Mo.App. S.D. 2000)

State of Missouri, Respondent, v. James L. Dunn, Appellant.

22711

Missouri Court of Appeals Southern District

06/07/2000

Appeal From: Circuit Court of Greene County, Hon. Patrick Deaton

Counsel for Appellant: Nancy A. McKerrow

Counsel for Respondent: Susan K. Glass

Opinion Summary: None

Montgomery, P.J., Prewitt, J., concur.

Robert S. Barney, Judge

James Dunn ("Defendant") appeals his conviction by a Greene County jury of assault in the second degree, section 565.060.1(5), RSMo. 1994, for which he was sentenced, as a prior and persistent offender, section 558.016, RSMo. 1994, to twenty years' imprisonment. ¹

Defendant raises three points of trial court error. In his first point, he posits that the trial court erred in instructing the jury on assault in the second

degree, the offense that he was ultimately convicted of, in that there was no evidence presented that Defendant acted recklessly. In his second point, Defendant posits that the trial court committed reversible error in overruling his motion for mistrial when it came to the attention of the trial court that two jurors were overheard discussing the case. In his final point on appeal, Defendant contends that the trial court erred in refusing to admit into evidence Defendant's proffered exhibit of a witness's prior inconsistent statement. We affirm the judgment of the trial court.Facts.

The Defendant does not challenge the sufficiency of the evidence supporting his conviction. This Court accepts as true all evidence supporting the verdict, including all favorable inferences therefrom and disregards all contrary evidence and inferences. State v. Carlile, 9 S.W.3d 745, 746 (Mo.App. 2000). On the evening of May 1, 1997, a group of people, including the victim, were gathered outside a residence in Springfield, Greene County, Missouri. Danny Drake, Steve Slavens, and Darren Slavens were on the porch of the residence talking and getting ready to go inside. Dana Friend was sitting in her car in the driveway talking to the victim, Juanita Fisher, who was beside the car walking back toward the residence. According to trial testimony, Defendant drove slowly by the house, stuck a shotgun out the driver's side window, and fired a shot in the direction of the residence. Ms. Fisher was struck in the head with a shotgun pellet that lodged under the skin next to the skull. The remainder of the pellets from the shotgun blast were found lodged in a wall of the residence near the garage.

Testimony was presented that Defendant had driven by the house going the other direction, i.e., with the passenger door toward the residence, a short time prior to the shooting. There was testimony that Defendant was accompanied in the car by his girlfriend, Deanna Brand, both when he first drove by the residence in question and at the time of the shooting. Gunpowder residue was found on Defendant's hands. Defendant's theory was that Ms. Brand had fired the shot. Ms. Brand supported Defendant's testimony. She testified that she had obtained the shotgun from one unnamed man, and had gotten another unnamed man to drive her by the house to enable her to fire the weapon. She could not explain why there was no gunpowder residue found on her. She acknowledged that she might have been wearing gloves, but stated she couldn't remember.

At Defendant's trial, Judge Deaton, the presiding judge, was notified by Judge Sweeney that Judge Sweeney had overheard one of the jurors in the case at bar ask another juror in the hallway "do you think he's out on bond?" When questioned by the trial court, the bailiff advised the court that two of the jurors were behind the other jurors in the hallway talking and that one of the two had asked the bailiff if Defendant was out on bond. Defense Counsel moved for a mistrial. The prosecutor objected to the mistrial and suggested that the jury be admonished, a suggestion that Defense Counsel, in turn, objected to as being futile. Defense counsel sought no further relief. The trial court denied the request for mistrial and took no further action.

Also at trial, Defendant attempted to enter into evidence the written statement Mr. Slavens made to the police the night of the incident in question. In that document, Mr. Slavens stated that he heard a shot and then he turned around and saw Defendant driving by, pointing a gun out the driver's side window. On direct-examination, Mr. Slavens testified that a portion of his written statement to police was incorrect: "The part about being turned around, because I was already turned around." He testified that he told police "[t]hat [he] turned around and then [he] saw [Defendant]" but that actually he "was already turned around when [Defendant] came around the corner." On cross-examination, Mr. Slavens testified that he told the police that he was walking from the driveway toward the residence "and [Defendant] came around the corner [in his car] and I turned around, but that's where I messed up because I was already turned around because Juanita or Dana, one of them hollered at me." Mr. Slavens was then asked "[i]sn't it true you told the police that you heard the shot and then you turned around and saw it?" Mr. Slavens answered, "No." Defense counsel attempted to have Mr. Slavens read the statement into the record at one point and then later asked that the written statement be admitted into evidence. Both requests were denied.

Defendant was convicted of second degree assault. He appeals. Discussion and Decision.

I.

In his first point, Defendant contends that the trial court erred in instructing the jury on second degree assault.² Defendant claims that "there was no evidence in the case to support a finding of reckless conduct since the State's evidence indicated that if [Defendant] was guilty at all, he was guilty of intentionally firing a shotgun from a slow moving vehicle and there was no basis to find that that was a reckless act."

"A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person." Section 565.050. "A person commits the crime of assault in the second degree if he: . . . (5) Recklessly causes physical injury to another person by means of discharge of a firearm." Section 565.060.

A person "acts knowingly", or with knowledge,

(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or

(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.

Section 562.016.3.

A person "acts recklessly" or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Section 562.016.4. Assault in the second degree is a lesser included offense of assault in the first degree. State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999).

The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

Section 556.046.2. However, "Section 556.046.2 does not prohibit the giving of lesser included offense instructions." State v. Beeler, 12 S.W.3d 294, 300 (Mo. banc 2000). "In the plainest terms, the statute creates no prohibition on instructing on lesser included offenses. This Court cannot amend the statute to include obligations not imposed by the legislature." Id.

We first note that the Missouri Supreme Court has recently held, in the context of a case of "imperfect self-defense," that "[t]he argument that only evidence of an accidental act or an accidental result supports voluntary manslaughter is incorrect." Id. at 297. The Supreme Court overruled a line of cases that stood for "the proposition that self-defense in a homicide matter forecloses the possibility of an instruction on involuntary manslaughter because such offense requires an accidental act or unintended consequence . . . ." Id. at 299.

In Beeler, the defendant, who was a city marshal, shot and killed a man during a traffic stop. Beeler, 12 S.W.3d at 296. The defendant claimed the man attacked him with a hammer. Id. The defendant fired five shots, killing the man while he sat in his car. Id. The driver's window of the car was rolled down about nine and a half inches and the driver's door was broken and could only be opened by reaching out of the window and grabbing the exterior handle. Id. A hammer was found on the floorboard underneath the victim's foot. Id. The jury was given a second degree murder instruction which included a self-defense instruction. Beeler, 12 S.W.3d at 297. They were also given a separate instruction on involuntary manslaughter which contained no reference to self-defense. Id. The defendant was convicted of involuntary manslaughter and claimed on appeal that "the word 'reckless' means an unintentional or accidental act or consequence," id., and that since "the shooting . . . here was unmistakably an intentional act done with an intent to kill in self-defense," id., the trial court erred in giving the involuntary manslaughter instruction.

The court in Beeler, discussed two cases, State v. Isom, 906 S.W.2d 870, 873 (Mo.App. 1995), and State v. Anding, 752 S.W.2d 59 (Mo. banc 1988), relied on heavily by both the Beeler defendant and Defendant in the case at hand.

In Isom, the defendant shot a man in the chest at the defendant's pool hall, killing him. Isom, 906 S.W.2d at 872. The defendant claimed that he had intended to shoot the victim in the arm because he thought the victim had a gun but that people were "running stampede [sic] made me have to move the pistol and hit him up there, I didn't...