State v. Gant

• Decision Date: 04 September 1979
• Docket Number: No. KCD,KCD
• Citation: 586 S.W.2d 755
• Parties: STATE of Missouri, Respondent, v. James B. GANT, Appellant. 29781.
• Court: Missouri Court of Appeals

Page 755

586 S.W.2d 755

STATE of Missouri, Respondent, v. James B. GANT, Appellant.

No. KCD 29781.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.

James B. Gant, pro se.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

SOMERVILLE, Presiding Judge.

Defendant was charged as a second offender in a four count information with (1) murder, first degree ("felony" murder), Section 559.007, RSMo Supp.1975, naming Breanda Marie Hendren as the victim, (2) assault with intent to kill with malice aforethought, Section 559.180, RSMo 1969, naming Kathy Spry as the victim, (3) assault with intent to kill with malice aforethought, Section 559.180, RSMo 1969, naming James Edward Norman as the victim, and (4) armed criminal action in connection with "the crime of assault with intent to kill (malice)", ¹ Section 559.225, RSMo Supp.1976. A jury found defendant guilty on all four counts and in due course the trial court assessed defendant's punishment and rendered judgment as follows: Count I, murder, first degree imprisonment for life; Count II, assault with intent to kill with malice aforethought (victim Kathy Spry) imprisonment for ninety-nine years; Count III, assault with intent to kill with malice aforethought (victim James Edward Norman) imprisonment for ninety-nine years; and Count IV, armed criminal action imprisonment for five years. The sentences imposed under Counts I, II and III were ordered to "run consecutively and not concurrently" and the sentence imposed under Count IV was ordered to "run concurrently with all other sentences".

This court, at the outset of this appeal, is confronted with a procedural predicament of major consequence. The jury returned their verdicts on August 11, 1977, and the trial court, pursuant to Rule 27.20(a), granted defendant twenty days additional time to file a motion for new trial. Chronologically, the last day for defendant to file his motion for new trial fell on Saturday, September 10, 1977. However, defendant's motion for new trial was not filed until Monday, September 12, 1977. Although Rule 31.01 excludes Sunday and legal holidays from consideration in determining the last day when defendant's motion for new trial was due, provided the last day for doing so fell on a Sunday or legal holiday, the fact that the last day fell on a Saturday was of no consequence as Saturdays are not excluded under Rule 31.01 in computing the overall time period. Adherence to Rules 27.20(a) and 31.01 dictates the inevitable conclusion that defendant's motion for new trial was not timely filed and preserved nothing for appellate review, thus relegating appellate review to issues deemed "plain error" within the purview of Rule 27.20(c). State v. Collett, 542 S.W.2d 783, 785 (Mo. banc 1976).

Before assessing the various "points relied on" to determine whether they should be entertained as "plain error", a statement of facts is in order. The state adduced evidence from which the jury could find that the following facts were established beyond a reasonable doubt. On January 24, 1977, James Edward Norman, one of the assault victims, shared an apartment in Columbia, Missouri, with Breanda Marie Hendren, age 16, the homicide victim. Norman was an admitted dealer in marijuana in the Columbia, Missouri, area. Kathy Spry, the other assault victim, was visiting the couple in the living room of their shared apartment at approximately 10:30 A.M. on the morning of January 24, 1977, when two black males were admitted into the living room under the ruse of wanting to purchase some marijuana. The shorter of the two black males, identified by Norman at a lineup and during trial as the defendant, asked Norman if he had a "quarter-pound of marijuana for sale". Norman replied that he only had "bags" of marijuana for sale and proceeded to the bedroom of the apartment where he kept his illicit "stock-in-trade". Defendant followed Norman into the bedroom, "pulled a gun" and pointed it at Norman and demanded that he lie on the floor. Norman complied and while in a prone position was incessantly asked by defendant "where the rest of the money and the rest of the dope was." Norman replied that all he had was marijuana and such money as was in his billfold. Defendant took Norman's billfold containing $175.00 in currency and several "bags" of marijuana which Norman had cached in the bedroom.

Norman described the gun defendant pulled on him as "long-barrelled" and "bronze copper colored". Defendant, insisting that Norman had more "pot and money", struck Norman on the head with the gun and then ordered his companion (Keith L. Matthews), who was in the living room, to "(bring) those bitches in here". Shortly thereafter Breanda Marie Hendren and Matthews entered the bedroom whereupon defendant asked Breanda Marie Hendren where the rest of the "stuff" was. She replied that there was nothing else. Matthews was unarmed. Defendant then shot Norman in the neck, from which wound Norman recovered. Norman heard several more shots, and the next thing he was aware of was seeing Breanda Marie Hendren lying on the floor of the bedroom and Kathy Spry lying on the floor of the doorway between the bedroom and the living room of the apartment. Medical testimony introduced by the state disclosed that Breanda Marie Hendren was shot in the mouth and head, the latter shot causing her death. According to Norman, defendant was the shorter of the two black males who entered the apartment.

Kathy Spry, the other assault victim, after hearing Norman yell "(g)o ahead and shoot me . . . I don't have the money", heard several shots and then saw Norman and Breanda Marie Hendren lying on the floor of the bedroom. As the two black males ran from the apartment, the shorter of the two who had the gun shot Kathy Spry in the left cheek and head from which wounds she later recovered. Kathy Spry was unable to positively identify defendant as the man who shot her.

Various witnesses testified without objection that "immediately" before January 24, 1977, defendant had been seen flourishing a "long-barreled pistol", and on the morning of January 24, 1977, before leaving the apartment where he lived in Columbia, Missouri, there were two "boxes of bullets" (which were offered and admitted into evidence without objection) at the head of the bed which he occupied in the apartment. A co-occupant of defendant's apartment testified that on the morning of January 24, 1977, she heard defendant say to his accomplice (Keith L. Matthews), "(l)et's go make the fast money", and later that day saw defendant spreading marijuana out on the floor of his apartment and observed at that time that he had a pistol and a large amount of money.

Keith L. Matthews, defendant's accomplice and the taller of the two black males who entered the apartment on the fateful morning in question, was called as a witness by the state. He testified that on the morning of January 23, 1977, defendant asked him to come to his apartment the following morning because he "wanted to knock off some dope and some money". Matthews complied and arrived at defendant's apartment between 9:00 and 9:30 o'clock on the morning of January 24, 1977. Matthews testified that he had previously seen defendant with a ".22 long barrel chromed, brown-handled" revolver in his possession. Matthews and defendant left the latter's apartment at approximately 9:30 on the morning of January 24, 1977, and proceeded on foot to the apartment occupied by Norman and Breanda Marie Hendren. Upon passing a police car on the way over to the scene of the crimes, defendant asked Matthews if he could see his "pistol" and Matthews replied that he could. Thereupon, defendant shifted the pistol from his left side "back towards the back".

Upon entering the victim's apartment, Matthews stayed in the living room while Norman and defendant proceeded into the bedroom. Hearing a "commotion" and "loud voices", Matthews went into the bedroom where he observed defendant pointing a pistol at Norman who was lying on the floor at the time. On orders from defendant, Matthews placed the money and marijuana taken from Norman into a "brown grocery sack" which the pair had brought with them. Matthews had the "brown grocery sack" and its contents in his possession when he later fled from the apartment. Matthews preceded defendant out of the apartment. Before fleeing the apartment Matthews observed defendant strike Norman on the head with his pistol and fire two shots into Norman. According to Matthews, defendant then grabbed the girl who was in the bedroom (Breanda Marie Hendren) by the hair and put the pistol "up to her cheek" and shot her. As Matthews was fleeing the apartment he heard several more shots after running past the other assault victim (Kathy Spry), although he did not actually see her shot. Defendant caught up with Matthews and placed the "pistol" in the "brown grocery sack" which Matthews was carrying. As he did so, he told Matthews, "I had to kill all of them . . . Sam(?) said don't leave no witnesses". When the two arrived back at defendant's apartment, defendant dumped all of the "stuff" in the "brown grocery sack" onto the floor and gave Matthews two bags of marijuana.

Two days after the robbery Matthews was questioned by the Columbia police at which time he denied any knowledge of the gruesome events which occurred on January 24, 1977. Several days later Matthews recanted and identified himself and defendant as the two black males involved in the multiple offenses. Matthews further testified that he was charged with being "an accessory to armed robbery", "murder in the first degree" and two charges of "assault with intent to kill with malice aforethought". Prior to defendant's trial Matthews...