State v. Garnett

• Decision Date: 08 December 2009
• Docket Number: No. ED 92790.,ED 92790.
• Citation: 298 S.W.3d 919
• Parties: STATE of Missouri, Respondent, v. Timothy H. GARNETT, Appellant.
• Court: Missouri Court of Appeals

298 S.W.3d 919 STATE of Missouri, Respondent,
v.
Timothy H. GARNETT, Appellant. No. ED 92790. Missouri Court of Appeals, Eastern District, Division Six. December 8, 2009.

[298 S.W.3d 920]

Susan Kister, Clayton, MO, for Appellant.

Chris Koster, Attorney General, Richard A. Starnes, Asst. Attorney General, Jefferson City, MO, for Respondent.

ROBERT G. DOWD, JR., Presiding Judge.

Timothy H. Garnett (Defendant) appeals from the judgment upon his convictions of one count of domestic assault in the first degree, Section 565.072, RSMo 2000,¹ two counts of domestic assault in the second degree, Section 565.073, and three counts of armed criminal action, Section 571.015, for which Defendant was sentenced to a total of forty years' imprisonment. On appeal, Defendant asserts the trial court erred (1) in overruling his motions for

298 S.W.3d 921

acquittal and motion for a new trial because there was only one act of assault and charging him with separate acts was in violation of his rights to be free from double jeopardy and (2) in denying his motion for mistrial after a State's witness attended to a sick juror because it caused undue sympathy or bolstered the witness's testimony. We affirm in part, reverse in part, and vacate in part.

Viewed in the light most favorable to the verdict, the following facts were adduced at trial. Defendant and the victim had an on-again, off-again relationship for approximately twenty years. Defendant and the victim first began their relationship in 1984 and had two children together. Both Defendant and the victim had problems with drug addictions. In January of 2006, the victim decided she did not want to be in a relationship with Defendant anymore and she moved out of the house she shared with Defendant.

Around May 20, 2007, Defendant called the church he and the victim attended. Defendant talked to the executive assistant to the pastor for about an hour regarding the victim and marriage counseling. During the telephone conversation, Defendant described how "he thought about ... coming to the church on Mother's Day, asking for a ride back with [the victim]" so he could "cut her throat from ear to ear and gouge her eyes out."

On May 27, 2007, the victim picked up Defendant and they went to church. As the victim was leaving, Defendant asked the victim if she would wait for him. Defendant was involved with a welcoming committee ministry that required him to stay a little late. The victim told Defendant she could not wait because she had to sing in the choir at another church and she was giving a ride to another female parishioner. Defendant became angry and told the victim she was not going to leave without him. Defendant got in the front seat of the car next to the victim, and the other woman got in the back. The victim began to drive away. Defendant looked back at the woman in the back and said, "You're about to see something you've never seen before." Defendant then grabbed the victim by her head and cut her throat. After Defendant had cut the victim's throat, the victim tried to stop Defendant and he cut her on the leg, hand, stomach, and breast.

The victim stopped the car, and Defendant got out of the car with the knife in his hand. A passerby stopped and saw Defendant holding the knife by his side. Defendant was angry and "cursing." Defendant repeatedly said, "I'm tired of her shitting on me." Defendant then dropped the knife and sat down on the curb with his head in his hands.

A firefighter who lived in the area provided first aid to the victim until an ambulance arrived. The victim was transported to the hospital with a nine-inch "gaping" neck wound that ran from ear to ear, an injury considered life-threatening because of its proximity to the carotid artery. The victim underwent surgery to repair the severed external jugular vein and tendons in her neck. The victim also had "superficial lacerations" to her hand, breast, stomach, back, and leg. The victim has lasting scars as a result of all the knife wounds inflicted by Defendant.

Defendant testified on his own behalf at trial. Defendant testified regarding the troubled relationship he had with the victim, including, according to Defendant, the victim's recent relapse into drug use and its effect upon their children. Defendant claimed he "just snapped" on the day of the assault.

The jury found Defendant guilty of one count of domestic assault in the first degree, two counts of domestic assault in the

298 S.W.3d 922

second degree, and three counts of armed criminal action. Following the recommendation of the jury, the trial court sentenced Defendant to thirty years' imprisonment for the first-degree domestic assault count (Count I), and ten years' imprisonment for the accompanying armed criminal action (Count II) to be served consecutively. Defendant was also sentenced to one year imprisonment for each of the second-degree domestic assault counts (Counts III and V), and three years' imprisonment for the two accompanying armed criminal action counts (Counts IV and VI), with the sentences for Counts III-VI to run concurrent with the sentences imposed in Counts I and II, for a total of forty years' imprisonment. Defendant now appeals.

In his first point, Defendant contends the trial court erred in overruling his motions for acquittal and motion for a new trial based on objections to the State filing Counts III-VI as separate counts from Counts I and II because those merged into Counts I and II. Defendant maintains all the injuries inflicted on the victim were part of a single assault and to charge Defendant with separate acts of assault subjected him to multiple convictions and punishments in violation of his rights to be free from double jeopardy.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that no person "shall be subject for the same offense to be twice put in double jeopardy of life or limb." State v. Cunningham, 193 S.W.3d 774, 780 (Mo.App. S.D.2006). Our review for a double jeopardy violation is de novo. Id.

The Double Jeopardy Clause guarantees that one will not be subjected to multiple punishments for the same offense, and it prevents the state from splitting a single crime into separate parts and pursuing several prosecutions. State v. Barber, 37 S.W.3d 400, 403 (Mo.App. E.D. 2001). In determining double jeopardy, Missouri follows the separate or several offense rule rather than the same transaction rule. Id. Under this rule, a defendant may be convicted of more than one offense based on the same conduct if the legislature intended to punish the conduct under more than one statute. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). In determining whether the Missouri legislature intended cumulative punishments, we first look to the statutes under which Defendant was charged and convicted. State v. Villa-Perez, 835 S.W.2d 897, 903 (Mo. banc 1992). If the statutes are silent, as is the case here, then we look to the general cumulative punishment statute, Section 556.041. Id.

Section 556.041 sets forth the limitations on convictions for multiple offenses. That section provides, in pertinent part:

When the same conduct of a...