State v. Gibson

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Gibson, 502 S.W.2d 310 (Mo. 1973)
• Decision Date: 10 December 1973
• Docket Number: No. 57196,No. 1,57196,1
• Parties: STATE of Missouri, Respondent, v. Junior Ernest GIBSON, Appellant

Page 310

502 S.W.2d 310

STATE of Missouri, Respondent, v. Junior Ernest GIBSON, Appellant.

No. 57196.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1973.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Jay White, Rolla, and J. W. Grossenheider, Lebanon, for appellant.

HIGGINS, Commissioner.

Junior Ernest Gibson, charged with assault on Minnie Gibson with intent to kill with malice aforethought, was convicted by a jury which assessed his punishment at two years' imprisonment. Sentence and judgment were rendered accordingly. § 559.180, RSMo 1969, V.A.M.S. (Appeal taken prior to January 1, 1972.)

Appellant does not question the sufficiency of evidence to sustain his conviction; and the evidence would permit the jury to find: that on May 18, 1970, at approximately 10 p.m., Minnie Gibson, estranged wife of defendant, left a tavern in st. James, Missouri, with Buster Farrell and Bobby Hopkins; that they got into Mrs. Gibson's automobile and left St. James, driving toward Highway U and the Interstate 44 overpass north and east of St James in Phelps County; that as she drove along her route, she noticed the blinking lights of a following automobile; that she thought someone was trying to stop her in connection with the needs of Bobby Hopkins's pregnant wife; that she made a left turn, crossed the overpass onto U, and pulled over to the right-hand said of the road and stopped; that when she stopped, the following car stopped behind her; that Bobby Hopkins left Mrs. Gibson's car, went back to the following car, and was shot to death by defendant; that Buster Farrell then went back to the following automobile and also was shot to death by defendant; that she remained in her car and defendant came to her car and fired one shot through the window into her face and one shot into her chest; that, although wounded, she was able to drive to a nearby house to get help. Such evidence made a case of assault with intent to kill with malice aforethought. § 559.180, supra.

Defendant's version was that he saw Minnie's car parked at the bar in St. James and he stopped to obtain evidence for his divorce suit then pending against Minnie; that when Minnie and her companions left, he followed; that when he saw they were not returning to town, he passed them and drove on toward the overpass; that Minnie then passed him and, when he arrived at the overpass, he waw Minnie's car and that she and her companions were out of the car blocking his way; that when he stopped behind her car and got out, the two men rushed him and knocked him against his car; that he then reached into his car, got his gun, and started shooting, killing both men; that Minnie got into her car and he thought she was reaching for a gun, so he shot her; that he went to his parents' home and reported the shootings to the authorities; that threats had been made previously on his life by Minnie and Buster. This version was the foundation for an instruction on defendant's right of self-defense by way of reasonable cause to apprehend a design by Minnie Gibson to kill or harm defendant.

Appellant contends (I) that the court erred in permitting Trooper Myers to give his opinion over defendant's objections on the location of the two cars at the time of the shooting and to testify that in his opinion Minnie's car did not block the path of defendant's vehicle 'because Trooper Myers admitted that he was not present until after the cars had been removed and gave his opinion as to their location based on the physical evidence he observed at the scene and, therefore, this testimony was opinion evidence which invaded the province of the jury as to material facts affecting defendant's defense of self-defense and was, therefore, reversible error.'

He argues that such opinion testimony of Trooper Myers, together with the statements of the court before the jury, and the leading and suggestive questions of the prosecuting attorney in the course of its admission 'all of which indicated that the prosecuting witness's testimony should be believed rather than that of the defendant * * * deprived the defendant of a fair trial and constituted reversible error.'

According to the prosecuting witness, Minnie Gibson, she drove across Interstate 44 via the overpass on Highway U and stopped her car in an intersection made by U and an access road which runs parallel to I--44. 'I pulled over on the first righthand road and that's where I stopped * * * so that other people could go by.' The following car 'pulled behind us and stopped.' The shootings followed.

According to defendant, when he got to the overpass, 'they'd already crossed and had stopped with their car parked in the * * * easterly service road and the three of them were out in the road. I couldn't get by. I couldn't go the easterly road. I couldn't go the other way without running over anybody, so I stopped. * * * and when I stopped, I got out of my car. * * * And about that time Minnie said * * * 'Get him."

Trooper Don D. Myers of the Missouri State Highway Patrol was called by the State and his testimony included the following:

'Q But from--looking at the scene, where did you determine that Minnie Gibson's car had been parked from the shooting? * * *

'MR. GROSSENHEIDER: * * * We're going to object to this as being speculative if he hasn't actually seen it parked there. * * *

'THE COURT: Well, he can give the factual things that he bases his opinion on. Overruled if he does that * * *.

'Q (by Mr. Z. White) The glass from the left door of the Gibson vehicle * * * indicated that the vehicle had been parked on the right side of the highway slightly north of the middle of the north outer road; in other words, it had been parked well in the intersection of the * * * connecting roads off of the traveling portion of Route U, would it? A In a northward--apparently in a northward direction. Q In other words, it would have been headed north along UU but would have been parked out of the traveled--either one of the traveling lanes of Route U? A Yes, that is correct. Q And to the east of Route U? A Yes. Q In--in an intersection of a crossroad? A That is correct.

'* * * Q Now, where did you place the defendant's vehicle during this shooting * * *?

'MR. GROSSENHEIDER: We object to that on the same ground. * * * THE COURT: Well, if he has factual information that he acquired there that he bases an opinion on he can give that.

'THE WITNESS: * * * there were tire marks turning to the left a short ways behind Minnie's vehicle, turning like the vehicle had been parked close to the rear of her vehicle, and when the vehicle left, the tire marks veered to the left and went across Route U and down the outer road in a westward direction. These tire marks matched the tire marks on Junior Gibson's vehicle.

'Q And was that the route that the defendant said he took when he left the area? A That is correct. * * * Q Now, from your examination * * * did Minnie Gibson's car have the road blocked at all?

'MR. GROSSENHEIDER: We object to that on the grounds that he didn't see the car parked there * * * and can only speculate as to where it was by the physical facts * * *. THE COURT: If he has some facts on which to base his opinion as to where it was, he can state what the facts were, then what his opinion is, based on those facts.

'Q The question was: * * * they asked you if he didn't tell you that they'd blocked the road on him and I'm asking you * * * if you saw any facts there that indicated that Minnie's car had the road blocked in any way, or if she was off of the road. * * *

'A From all of the physical evidence found at the scene, it was apparent that Minnie Gibson's vehicle had not blocked the highway in any manner, as far as Route U was concerned. It was apparent that the north service road, which runs in an east and west direction, would have been blocked by her vehicle, but not Route U, the highway on which the cars had been traveling on was not blocked.

'Q But would the pathway of Junior Gibson's car, coming from St. James on the south outer road, (have) been blocked?

'MR. GROSSENHEIDER: We object to that as repetitous. * * * THE COURT: * * * Overruled.

'THE WITNESS: Would you repeat that question, please? Q * * * Would * * * Junior Gibson's car, coming from St James, on the south outer road and turning onto UU, have been blocked by Minnie Gibson's car? A From the tracks located at the scene it was apparent that Junior Gibson's car had been pulled onto the right edge of the highway, near the intersection also, and the vehicle would not have been blocked by Minnie Gibson's vehicle.'

The foregoing demonstrates that Trooper Myers, who did not see the vehicles in question at the scene, was permitted to give his opinion, based upon physical facts found by investigation, on location of the vehicles in question and whether Mrs. Gibson's automobile had defendant's path blocked. This was akin to admitting a trooper's opinion on point of impact of two colliding automobiles based upon his judgment of location of debris, and is equally improper and erroneous. The subject is not a proper one for expert or opinion advice and the opinion given invaded the province of the jury. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 248--249(9--10) (1948); Chester v. Shockley, 304 S.W.2d 831, 834(1) (Mo.1957). See also Housman v. Fiddyment, 421 S.W.2d 284, 290(6) (Mo. banc 1967). However, admission of the opinion of Trooper Myers was harmless in this case because the statement demonstrates that the opinion corroborated appellant's own testimony on the subject. State v. Baker, 185 S.W.2d 644, 645--646(2) (Mo.1945); State v. Forbus, 332 S.W.2d 931, 934(2) (Mo.1960). Consequently, there was no prejudice from the erroneous admission, and only prejudicial error is reversible error. State v. Mayberry, 272 S.W.2d 236, 240(6) (Mo.1954).

Appellant charges error (II) in permitting Trooper Myers to testify to the location...