State v. Galbraith
| Decision Date | 25 November 1986 |
| Docket Number | No. WD,WD |
| Citation | 723 S.W.2d 55 |
| Parties | STATE of Missouri, Respondent, v. William GALBRAITH, Appellant. 37493. |
| Court | Missouri Court of Appeals |
Sean O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
Before NUGENT, P.J., and BERREY and GAITAN, JJ.
Defendant William Galbraith was tried for the murder of Gerald Johnson and the jury found him guilty of murder in the second degree, § 565.004 1, and armed criminal action, § 571.015. He was sentenced to life imprisonment on the first count and thirty years' imprisonment on the latter, the sentences to run concurrently.
The defendant raises six points in this appeal, claiming that the trial court erred: (1) in failing to include a mens rea element in its jury instruction on the lesser included offense of manslaughter; (2) in giving MAI-CR2d 1.02 and MAI-CR2d 2.20 in that those instructions improperly define "reasonable doubt" as proof that leaves the jury "firmly convinced" of a defendant's guilt, thereby reducing the state's burden below that required by the due process provisions of the state and federal constitutions; (3) in denying the defendant an opportunity adequately to present his defense of self-defense in that a knife the police recovered from inside the victim's boot was not available for use as an exhibit at trial; (4) in overruling defendant's objection to statements made by the prosecutor during voir dire, in that the statements were calculated to persuade the veniremen at that preliminary stage of the proceedings; (5) in failing sua sponte to dismiss a juror who was incompetent or unable to fulfill his obligation; and (6) in overruling defendant's motion for a new trial without first holding a competency hearing to determine defendant's capacity to have waived his rights to proceed pro se and to testify at trial in light of a diabetic reaction that left him semi-comatose during portions of the trial.
For the reasons set forth below, we affirm the judgment.
On the evening of July 20, 1984, the victim, Gerald Johnson, started to drive his brother home from Alpha Liquidators on Troost Avenue near Linwood Boulevard in Kansas City where the brothers both worked, but his car quit running near 26th and Cleveland. Coincidentally, their father, Abe Johnson, drove by and saw that they were having car trouble. Abe took Gerald's brother home, drove Gerald back to Alpha Liquidators where Gerald hoped to find a mechanic to repair the car, and then went about his own business.
Raymond Battles, who knew both the victim and defendant Galbraith, testified about a conversation he had with Gerald Johnson at about 8:00 p.m. that evening. When Gerald explained to Battles that he needed a ride to get some money in order to have the car repaired, Battles suggested that defendant Galbraith, who ran a "bootleg cab service", drive Gerald downtown in exchange for $5.00. Galbraith agreed, and Battles saw Galbraith and Gerald Johnson leave together and return about one and one half hours later.
After Gerald's return, Battles engaged Gerald in conversation on the street across from the Yum Yum Lounge located at 3223 Troost Avenue. Raymond Battles and another witness, James Pace, both testified that while the victim was talking to Battles in front of the Yum Yum Lounge, defendant Galbraith approached the victim from behind and hit the victim in the head with a metal pipe that he swung with both hands. When the victim staggered, the defendant hit him again. Raymond Battles grabbed the defendant to stop him, and Galbraith dropped the pipe and went into the Yum Yum Lounge.
Police officers arrived at the scene and found the victim lying on the street. Before he was taken from the scene by ambulance, Officer Sherri Williams recovered a butcher knife from inside one of his paratrooper style mid-calf length boots. The victim's pant leg was outside the boot, covering it. Officer Williams placed the knife, which she described on the property slip as a wood-handled, ten-inch blade butcher knife, with the police department property and evidence unit. She checked the "safe keeping" box on the property slip rather than the "evidence" box, finding no reason to preserve the knife as evidence since it had not been used in any crime.
Gerald Johnson died ten days later. Dr. Bonita Peterson, the Jackson County Medical Examiner, performed an autopsy on the victim's body. She testified that Johnson's death resulted from oxygen deprivation to the brain caused by swelling of the brain and subsequent loss of blood supply. She stated that the swelling was caused by "blunt force head injury."
Defendant contends that he could not adequately present his defense of self-defense because the state was unable to produce the knife for use as an exhibit at the trial. Regarding the unavailability of the knife, Sergeant Ronald Ehrhardt, supervisor of the police department property and evidence unit, testified that according to routine police practices, a knife held for "safekeeping" such as the one recovered from Gerald Johnson's boot would be held for a minimum of ninety days and then disposed of if no one claimed it. For disposal, the knife would be placed in one of three barrels, each containing 200 to 300 dangerous weapons to be melted down at Armco Steel.
The butcher knife in question was placed in one of those barrels and commingled with several hundred other knives on January 29, 1985, coincidentally, the same week the case was first set for trial. On April 10, 1985, the property supervisor received a subpoena for the knife, and another subpoena several days later for the barrels. The barrels of contraband were not destroyed because of the subpoenas, but the officers were not able to distinguish the butcher knife from the knives in the various barrels. The property supervisor testified he had no knowledge that the knife was wanted as exculpatory evidence in this case until the subpoenas were issued.
Though the knife could not be produced for trial, the jury heard testimony regarding its existence, location, and description. In addition to the testimony of Officer Sherri Williams and Sergeant Ehrhardt, the jury heard the testimony of Yvonne Winzer, the bartender at the Yum Yum Lounge on the evening of July 20, 1984. She stated that at some earlier time that evening the victim and the defendant were engaged in an argument at the back of the bar during which she observed "a shining instrument" that appeared to her to be a knife in Gerald Johnson's hand. She testified that the victim and the defendant left the bar together and that the defendant reentered the bar alone about twenty minutes later. Eyewitness Raymond Battles stated that he never saw a knife in the victim's possession that night. The victim's brother testified that the victim used "a long butcher knife with a brown handle to it" to cut carpet in the course of his employment at Alpha Liquidators.
In addition to the above testimony about the knife, the prosecutor invited the defendant to exhibit a facsimile of the knife for demonstrative purposes to aid in presenting his defense, but the defendant chose not to do so. Also, the trial court permitted the defendant to submit a self-defense instruction to the jury.
Another of defendant's claims concerns statements made by the prosecutor during voir dire examination. The following colloquy took place:
[Prosecutor]: As I indicated, in Missouri, if you commit the crime of murder and you do so by means of a deadly weapon, then you have committed a separate crime, and that is armed criminal action.
Thus, there are two counts in this case. Murder in the second degree and armed criminal action. Basically, the state alleges that on July 20th, 1984, the victim in this case, twenty-nine-year-old Gerald Johnson, was with his brother.
At that point, the trial court overruled the objection and instructed the prosecutor to limit the description of the case to the minimum necessary to determine whether the prospective jurors had learned of the case through the media. One juror answered that she had read about the case in the newspaper, and she was later stricken for cause on defendant's motion.
The defendant bases another claim on the fact that when the members of the jury were polled as to whether they had voted yes or no on the verdict, juror Ellsworth A. Gallamore answered, "Here." The court then asked, to which he again responded, "Here." The court asked, "Do you mean to say yes or no?" Mr. Gallamore replied, "Yes."
Defendant's last claim centers upon his diabetic condition and its effect upon his decisions not to conduct his own defense and not to testify at trial. He first informed the court of his diabetes at trial on July 16, 1985, when the court made inquiry regarding the public defender's motion to withdraw upon defendant's request and defendant's oral motion to have new counsel appointed. Defendant stated that for about three months, the jail authorities had refused to give him insulin. He explained that he had experienced fainting spells and numbness in his hands and feet since the medication had been withheld and that he believed he was dying. With the exception of those comments, the issue of defendant's diabetes was not raised again during the trial.
Finding that the defendant was...
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