State v. Dunn, WD
| Decision Date | 14 April 1987 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Emmett F. DUNN, Appellant. 37728. |
| Court | Missouri Court of Appeals |
Kathleen Murphy Markie, Columbia, for appellant.
William L. Webster, Atty. Gen., Lee A. Bonine, Asst. Atty. Gen., Jefferson City, for respondent.
Before BERREY, J.P., and PRITCHARD and DIXON, JJ.
Defendant appeals from his jury convictions of two counts of capital murder, § 565.001, RSMo 1978, and sentences to two consecutive life terms of imprisonment without eligibility of parole for 50 years.
On appeal, defendant claims the trial court erred in prohibiting him from questioning a defense witness about certain letters the witness had written defendant and in finding that two child witnesses, ages six and ten at the time of trial, were competent to testify.
On February 28, 1984, the police were called to Troost Lake in Kansas City, Missouri. When the police arrived they discovered a car partially submerged in the lake. When the car was pulled from the lake, the bodies of Diane Rivers and Harold James were discovered lying on the floorboard of the back seat. Rivers's son, nine-year-old Reginald (Reggie) Rivers, was lying on top of the bodies in a semiconscious state with ligature marks on his neck. Rivers's daughter, five-year-old Telia Dunn, was found on the shoreline. She also had ligature marks on her neck but was otherwise in good condition.
Testimony at trial revealed that on February 27, 1984, James and Rivers and the children went to visit defendant and Shirley Atkins. Defendant, Atkins, James and Diane Rivers were drinking and smoking marijuana. James became drunk and fell to the floor, and Diane Rivers asked defendant to help her put James in the car. An argument ensued with some pushing and shoving. Shirley Atkins threw Diane Rivers to the floor. James grabbed at Atkins's leg and Atkins stabbed James. Defendant got a shotgun and hit James in the stomach with the gun, then shot him. Defendant turned a handgun on Atkins and ordered her to shoot Diane Rivers with the shotgun. Atkins did shoot Rivers. Defendant instructed Atkins's son, James Earl Rivers, to shoot Diane Rivers and he also shot her with the shotgun. Defendant shot Diane Rivers in the back with the handgun. Defendant next choked Reggie with a chain until Reggie lost consciousness, and then defendant unsuccessfully tried to choke Telia.
James Earl Rivers and defendant placed the bodies in the car. Atkins drove the car with the two dead bodies and the two children into Troost Lake. After Atkins had left the house with the bodies, Atkins's daughters attempted to clean the blood off the carpet as instructed by defendant. Later, the carpet was pulled up and placed in the basement. The shotgun, handgun and chain were thrown over a bridge at Little Blue River. Defendant and Atkins were arrested February 28, 1984. Atkins made a plea bargain with the state in which she agreed to tell the complete truth in exchange for a reduction of her charges to manslaughter.
In his first point on appeal, defendant claims the trial court erred in prohibiting defense counsel from questioning defense witness Shirley Atkins about information contained in certain letters written by Atkins to defendant. Defendant argues that the majority of the state's case rested on the testimonies of Atkins and her daughters. He claims his proposed inquiries were proper as impeachment and would have elicited direct evidence of lack of fear on the part of Atkins and her daughters and would have demonstrated Atkins's motive to lie.
The state endorsed Atkins but did not call her to testify. Defendant requested that he be allowed to call Atkins as an adverse witness. After a considerable amount of discussion, the court replied that "unless and until it's developed on ... [your] direct examination [of her] ..., that she is hostile, you will not be permitted to lead or cross-examine the witness or impeach her."
On direct, defense counsel asked Atkins about her plea bargain with the state. Defense counsel then asked Atkins various questions about the night of the murders but he did not ask Atkins anything about her relationship with defendant. The prosecutor cross-examined Atkins extensively about the night of the murders, and asked her several questions concerning the terms of the plea bargain.
Defense counsel called two other witnesses to the stand, then approached the court about recalling Atkins for more redirect questioning. Specifically, defense counsel asked "to bring her back to ask her redirect examination questions concerning letters she had written Emmett Dunn, contrary to the things she said to [the prosecutor]." The defense was allowed to bring Atkins back to the courtroom but she refused to testify without her attorney being present.
Subsequent discussions between the court and defense counsel concerning Atkins's letters went as follows:
The offer of proof was allowed. Defense counsel read portions of the letters in question to the court. In each of the letters, Atkins proclaimed her love for defendant. In a few of the letters Atkins questioned defendant about his interest in someone else but even those letters are affectionate in nature. In other letters, Atkins asked defendant what she should do. One letter contained the statement, "I'am [sic ] sorry the way I acted in court but that was what I was told to do baby...." In another letter, Atkins stated:
I have not, seen nor have I talked, to any body, from day one, just my lawyer, I'am [sic ] not going to plead guilty, and I told, my lawyer, I do not want, to testify against you. And I did'nt [sic ] denied [sic ] your statements, I have not, even seen are [sic ] heard of, your statements until now. Baby, I'am [sic ] trying to, get ready for all of this. And I did not lie, on you Baby, they wrote, all that s--- up, the way they wanted too [sic ]. Because I did'nt [sic ] have a lawyer there to defend me, like I should haved [sic ]. I'am [sic ] sorry for talking, without one, if I had knew [sic ], I would have said, anything that's late now.
The court overruled defense counsel's request to inquire about the letters. Two of the exhibits mentioned in the offer of proof are not included in the record on appeal.
Defendant first claims his proposed inquiries about the letters were proper for impeachment. The rule in Missouri was, for many years, that no party in either a civil or criminal case could impeach his own witness unless the witness was hostile. See State v. Byrd, 676 S.W.2d 494, 502 (Mo. banc), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1984). The rule was changed for civil cases in Rowe v. Farmers Insurance Co., 699 S.W.2d 423, 425 (Mo. banc 1985), which held that "any party [may] introduce a prior inconsistent statement to impeach any witness regardless of by whom the witness may have been subpoenaed or called." This district has adopted the rationale of Rowe for criminal cases as well in State v. Moutray, 728 S.W.2d 256 (Mo.App.1987).
In certain criminal cases a relatively new statute, effective two weeks prior to defendant's trial, also affects prior inconsistent statements. That statute reads as follows:
491.074. Prior inconsistent statement may be admissible in certain cases as substantive evidence.--Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of an offense under chapter 565, 566 or 568, RSMo, shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.
RSMo 1986. The offenses for which defendant was tried fall under "offenses against the person," Chapter 565, RSMo. Section 491.074, therefore, is applicable; it pre-empts any law to the contrary and makes a prior inconsistent statement of any witness admissible as substantive evidence. If defendant was able to demonstrate to the trial judge that there were inconsistencies between the statements Atkins made at trial and those she made in her letters to defendant, he should have been allowed to put those inconsistencies before the jury as substantive evidence. The rationale of Rowe and the statute deal only with prior inconsistent statements. Whether an inconsistency exists between trial testimony and statements made prior to trial is to be determined by the whole impression and effect of what has been said and done. State ex rel....
To continue reading
Request your trial
-
Byrd v. Armontrout
...statute permitting prior inconsistent statements to be admitted as substantive evidence. Mo.Rev.Stat. § 491.074. See State v. Dunn, 731 S.W.2d 297, 299-300 (Mo. App.1987); see also State v. Moutray, 728 S.W.2d 256, 262 17 In federal court, the marital privilege is a federal common law privi......
-
State v. Powell
...611 S.W.2d 223 (Mo. banc 1981), State v. Baskerville, 616 S.W.2d 839 (Mo.1981), State v. Downs, 593 S.W.2d 535 (Mo.1980), State v. Dunn, 731 S.W.2d 297 (Mo.App.1987), State v. Clark, 711 S.W.2d 928 (Mo.App.1986), State v. Carr, 687 S.W.2d 606 (Mo.App.1985).2 State v. Mercer, 618 S.W.2d 1, 1......
-
State v. Blankenship
...by the whole impression and effect of what has been said and done. State v. Nimrod, 484 S.W.2d 475, 478 (Mo.1972); State v. Dunn, 731 S.W.2d 297, 300 (Mo.App.1987). Clearly, James' statement to police officers that defendant told him about the robbery was inconsistent with his trial testimo......
-
State v. White, 71600
...335 (Mo. banc 1987); State v. Gilmore, 681 S.W.2d 934 (Mo. banc 1984); State v. Laux, 755 S.W.2d 315 (Mo.App.1988); and State v. Dunn, 731 S.W.2d 297 (Mo.App.1987).3 The Court has held that such cases are not appropriately considered for proportionality review purposes. See State v. Byrd, 6......