State v. Fuller, WD

• Decision Date: 09 June 1992
• Docket Number: No. WD,WD
• Citation: 837 S.W.2d 304
• Parties: STATE of Missouri, Respondent, v. George FULLER, Appellant. 45050.
• Court: Missouri Court of Appeals

Page 304

837 S.W.2d 304

STATE of Missouri, Respondent, v. George FULLER, Appellant.

No. WD 45050.

Missouri Court of Appeals Western District.

June 9, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

July 28, 1992.

Application to Transfer Denied Sept. 22, 1992.

Robert G. Duncan, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before LOWENSTEIN, C.J., and BERREY and SPINDEN, JJ.

LOWENSTEIN, Judge.

Defendant George L. Fuller appeals from a jury verdict of guilty on four counts: first degree murder, § 565.020, RSMo 1986, first degree assault, § 565.050, RSMo 1986, and two counts of armed criminal action, § 571.015, RSMo 1986. Fuller was sentenced on the four counts, respectively, to life without possibility of probation and parole, 30 years, life and 30 years. Fuller's points on appeal are: 1) he should have been granted a continuance to find an essential witness, 2) the court abused its discretion in allowing the state's witness to display his scars to the jury, 3) he was denied a fair trial because a juror failed to disclose on voir dire that he formerly worked for the department of corrections and his mother was a corrections officer, 4) the court erred in not allowing questioning of the police officer who had taken statements from the missing witness, and, 5) the court erred in denying defendant's motion for judgment of acquittal, given that the only evidence of defendant's presence at the scene and opportunity to commit the offense was uncorroborated, conflicting, and impeached testimony by the state's witness.

Out of an extremely complex fact pattern involving many different people, this court will present an abbreviated statement of facts as follows. As background, the victims in this case were Gregory Dean and his brother Allen C. Dean. As a result of the shooting incident leading to this conviction, Allen died, while Gregory, after lengthy hospital stays and complex surgery, survived. Prior to the incident, Gregory had dated Clara Fuller, the sister of defendant George and Thurman Fuller. Ms. Fuller had temporarily lived in Gregory's apartment, until two or three weeks before the shooting. Gregory and Ms. Fuller also broke up before the shooting, Gregory admitting to having "slapped her" before she moved out, but also admitting that Ms. Fuller had insisted that he had "beat her up."

The day after Thanksgiving, Gregory Dean and Allen Dean were in Gregory's apartment. Testimony reveals that several people came and went during the evening. Two of those people were a Francis Beverly a/k/a Francis Revels and her friend Bruce. Francis apparently had a stolen television which she wished to trade for drugs. At approximately midnight, with Gregory, Allen, Francis, and Bruce in the apartment at the dining room table, Gregory went to the back of the apartment to call his ex-wife. According to Bruce, there was a knock on the door, followed by Gregory saying "come in." Bruce heard a scuffle in the back, and Allen went to the back of the apartment. Francis jumped up and ran out the front door, and Bruce followed. However, after reaching the street, Francis went back up towards the apartment. Bruce continued home, hearing two shots as he was half way down the block.

Gregory testified that Thurman Fuller entered the bedroom while he was on the phone, and disconnected the call. Gregory then heard two shots, the second one striking him in the back. Gregory testified that he then saw the defendant George Fuller down on one knee and holding a sawed-off shotgun. Both Fullers ran out of the bedroom. Gregory called to his brother, and then got to the kitchen, where Allen lay shot in the stomach. As he crawled into the dining room after the telephone, it rang, with his ex-wife on the phone. He told her he and Allen were shot. At that point he also saw Francis in the dining room, taking something from the table. A neighbor, who heard the scuffle, two shotgun shots, and looked out to see Francis leave (for the second time), went into Gregory Dean's apartment. Gregory told the neighbor that "Clara's brother" had shot him; Clara had three brothers.

Three fired shotgun shells were found in the apartment, two in the bedroom and one in the dining room, although all witnesses testified to only two shots. Gregory did not see Thurman Fuller with a gun, only the defendant George Fuller. The police detained and questioned Francis at the scene, but she has not been located since, and did not testify at trial. Her statements to the police which differed or added to the others' testimony were that she saw a man she had seen at a drug house come in the apartment, that Allen who went to the door did not appear to know the man, that the man was holding a shotgun she recognized from the drug house, that the man resembled defendant George Fuller, and therefore she thought it was his brother, that she had seen George Fuller with the man at the apartment door, and that she had seen George Fuller holding the same shotgun when he opened the drug house door "for customers."

I. The missing witness

Defendant Fuller argues that the trial court abused its discretion in refusing to grant his motion for a continuance in order to secure the presence of Francis Beverly. The State maintains that no abuse occurred, given that the defendant's motion, made orally on the day of trial, was not in writing nor accompanied by an affidavit, as required by Rule 24.09, and that Francis Beverly, who had been missing for more than a year, despite extensive efforts to locate her by both sides, was in all probability never to be seen again. In fact, a warrant on another charge had been issued for Francis' arrest. This court denies defendant's point, and holds that no abuse of discretion occurred.

The failure to comply with rules prescribing means for requesting a continuance is sufficient grounds to deny the request, State v. Kechrid, 822 S.W.2d 552 (Mo.App.1992), State v. Johnson, 812 S.W.2d 940, 942-943 (Mo.App.1991), State v. Adams, 808 S.W.2d 925, 929 (Mo.App.1991). The motion, made orally, did not follow Rule 24.09 requirements, in that it was not in writing, and there was no accompanying affidavit. Furthermore, there was no showing of a reasonable belief, as required by Rule 24.10 when a continuance is requested due to the absence of a witness, that Francis Beverly's attendance or testimony would be procured within a reasonable time. Quite to the contrary, there seemed no probability of finding Francis, and in fact both sides had failed during the trial of Thurman Fuller in 1990.

A ruling on a motion for a continuance rests within the sound discretion of the trial court, and such a decision will not be reversed on appeal absent a very strong showing of abuse, State v. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991), cert. denied Schaal v. Missouri, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992), while the party requesting the continuance bears the burden of showing both an abuse of discretion, State v. Kechrid, 822 S.W.2d at 552, and prejudice stemming from the court's denial, State v. Schaal at 666. At the time of the motion for continuance in April, 1991, the court said the following:

THE COURT: Well, since there's a warrant for her arrest, it's not surprising that she is making herself scarce. This case has been going on since 1989, and I think there's a good probability that you will never, ever find your witness if you haven't found her by now. I understand that significant efforts have been made by all parties to try to locate her.

* * * * * *

THE COURT: ... Under the circumstances, I'll have to deny the motion for a continuance.

The court noted that efforts to find Francis had been fruitless during the previous trial of Thurman Fuller, and that she now had an outstanding warrant for her arrest. When ruling on a request for a continuance based upon the absence of a witness, the trial court may consider the probability that the witness cannot be found, State v. Lachterman, 812 S.W.2d 759, 763 (Mo.App.1991), and a trial court will not be held to have abused its discretion if the continuance probably would not result in the presence of the witness at trial, Lachterman at 763, State v. Leigh, 621 S.W.2d 515, 517 (Mo.App.1981). The defendant did not present any evidence or make any reasonable showing of ability to procure Francis. Finally, a refusal to grant a continuance for a missing witness will not be reversed on appeal unless it is reasonably probable that the witness' testimony will result in a different outcome, State v. Reece, 505 S.W.2d 50, 52 (Mo.1974), State v. Davis, 625 S.W.2d 903, 905 (Mo.App.1981). The evidence Francis was believed to give is not actually exculpatory as to the defendant, George Fuller, for Francis only stated that the one man she saw holding the gun resembled George Fuller, and was perhaps his brother. In fact, if she testified consistently with statements to police, she would have connected the defendant to the shotgun apparently used in the shooting. Francis' testimony does not appear to bear directly upon the innocence of George Fuller, State v. Petterson, 780 S.W.2d 675, 679 (Mo.App.1989) (necessity of procuring witness whose testimony bears directly on innocence of defendant), and as such it was no error to deny the continuance. A reversal is not required because Francis' testimony might impeach the testimony of Gregory Dean as to who fired the shots, State v. Johnson, 812 S.W.2d 940, 944 (Mo.App.1991). Defendant did not overcome his burden on appeal, no prejudice is shown, and the point is denied.

II. Exhibition of scars to jury

During Gregory Dean's testimony, the court allowed him to show his scars from the gunshot wound to the jury. Defendant George Fuller argues that the prejudicial effect of this...