State v. Giffin, No. 62775

CourtUnited States State Supreme Court of Missouri
Writing for the CourtALDEN A. STOCKARD
Citation640 S.W.2d 128
PartiesSTATE of Missouri, Respondent, v. Burl Delbert GIFFIN, Sr., Appellant
Docket NumberNo. 62775,No. 2
Decision Date12 October 1982

Page 128

640 S.W.2d 128
STATE of Missouri, Respondent,
v.
Burl Delbert GIFFIN, Sr., Appellant.
No. 62775.
Supreme Court of Missouri,
Division No. 2.
Oct. 12, 1982.
Rehearing Denied Nov. 9, 1982.

Page 130

John E. Price, Daniel P. Wade, Springfield, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Senior Judge.

Appellant, in a jury-waived trial, was found guilty of second degree murder and sentenced to life imprisonment.

From the evidence the following could reasonably be found. On the afternoon of May 11, 1979, appellant, his wife and daughter, and a friend arrived at Roy and Esther's Tavern in Ava, Missouri. While at the bar, appellant got into a fight with one of the patrons, Boyd Conrad. Appellant called Conrad a "bastard" and a "bull-headed son-of-a-bitch" at which point Conrad hit appellant knocking him to the floor. Appellant got up, and as he went out the door he said: "You've had it. I'll be back."

Approximately one hour later, appellant walked toward the tavern carrying a shotgun. Appellant did something to the gun and then flung open the door to the tavern. Once inside he hesitated momentarily, and then shot and fatally injured Doug Robinson who stood up as appellant came in the door. Appellant turned and ran out the door and called to his wife and daughter to "run." The three of them got into a white Volkswagon and drove away.

Two persons who saw appellant run out of the tavern ran to the police station and told a police officer, who had heard the shot, to stop the man in the white Volkswagon. Appellant drove back onto the Ava square and two officers pursued him. Appellant pulled over and stopped, and was ordered out of the car. One officer read the Miranda warning to appellant and he was then placed under arrest.

As his initial point on appeal, appellant contends that for three separate reasons the evidence was insufficient to convict him of second degree murder. He asserts that (1) "the evidence established that [he] was intoxicated at the time of the offense to such an extent that he was unable to form an intent to kill * * * or to premeditate his actions;" (2) the killing was committed in a heat of passion occasioned by his altercation with Boyd Conrad; and (3) the evidence established that the killing was accidental in that appellant intended to shoot into the wall but the deceased walked into the line of fire.

Rule 27.01(b) provides that the findings of the court shall have the force and effect of a jury. Therefore, appellate review is as though a verdict of guilty has been returned by a jury. If there is substantial evidence to support the findings of the trial court, its judgment is to be affirmed. State v. Ruff, 618 S.W.2d 722 (Mo.App.1981); State v. Ore, 567 S.W.2d 691 (Mo.App.1978). In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, the Court accepts as true all evidence in the record tending to prove the defendant's guilt together with inferences favorable to the State that can be reasonably drawn therefrom, and the court disregards all contrary evidence and inferences. State v. Morgan, 592 S.W.2d 796 (Mo. banc 1980).

Appellant contends he was too intoxicated to form the intent to kill or to premeditate his actions. Voluntary intoxication, § 562.076, RSMo 1978, affects criminal liability where the intoxication is of such a degree that it negatives an essential mental state required for guilt of the particular offense. Appellant's mental state can be determined from his testimony, from his conduct before the act, from the act itself, and from his subsequent conduct. State v. Runyon, 619 S.W.2d 955 (Mo.App.1981). Appellant testified he could not recall the shooting but this "is not conclusive that in his numbed condition he did not form an intent to kill." State v. Gullett, 606 S.W.2d 796 (Mo.App.1980). However, numerous state witnesses testified that appellant

Page 131

did not appear to be intoxicated. They based their opinion on their observation of his driving, his speech and his physical movements. There was testimony that he appeared to be drunk, but conflicts in evidence and the determination of the credibility and the weight to be given to testimony are within the province of the trier of fact, in this case an experienced trial judge, and are not cognizable on appeal. State v. Hager, 577 S.W.2d 188 (Mo.App.1979).

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62 practice notes
  • State v. McMillin, No. 70502
    • United States
    • Missouri Supreme Court
    • January 10, 1990
    ...death, or to corroborate or refute testimony). The fact that a gruesome photograph adds nothing to the other evidence, State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982), State v. Engleman, 634 S.W.2d 466, 475 (Mo.1982), or that the defendant offers to stipulate to the evidence depicted in the ......
  • State v. Hurt, No. 13156
    • United States
    • Court of Appeal of Missouri (US)
    • March 12, 1984
    ...and each photograph was "not inadmissible because by accurately portraying a wound it tends to become inflammatory." State v. Giffin, 640 S.W.2d 128, 132 The defendant's next points concern an aspect of the trial that arose from the direct and cross-examination of the defendant. As previous......
  • State v. Sidebottom, No. 69247
    • United States
    • Missouri Supreme Court
    • June 14, 1988
    ...a person of reasonable caution that the person to be arrested has committed the crime for which he is being arrested." State v. Giffin, 640 S.W.2d 128, 131 In the instant case, appellant's grandmother was murdered the day before the "arrest." The police had a report by appellant's grandmoth......
  • State v. Griffin, No. 69733
    • United States
    • Missouri Supreme Court
    • July 26, 1988
    ...sufficient to warrant a reasonably cautious person to believe that the person to be arrested has committed the offense. State v. Giffen, 640 S.W.2d 128, 131 (Mo.1982). Probable cause does not require that an informant be one whose reliability has previously been established. The true inquir......
  • Request a trial to view additional results
62 cases
  • State v. McMillin, No. 70502
    • United States
    • Missouri Supreme Court
    • January 10, 1990
    ...death, or to corroborate or refute testimony). The fact that a gruesome photograph adds nothing to the other evidence, State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982), State v. Engleman, 634 S.W.2d 466, 475 (Mo.1982), or that the defendant offers to stipulate to the evidence depicted in the ......
  • State v. Hurt, No. 13156
    • United States
    • Court of Appeal of Missouri (US)
    • March 12, 1984
    ...and each photograph was "not inadmissible because by accurately portraying a wound it tends to become inflammatory." State v. Giffin, 640 S.W.2d 128, 132 The defendant's next points concern an aspect of the trial that arose from the direct and cross-examination of the defendant. As previous......
  • State v. Sidebottom, No. 69247
    • United States
    • Missouri Supreme Court
    • June 14, 1988
    ...a person of reasonable caution that the person to be arrested has committed the crime for which he is being arrested." State v. Giffin, 640 S.W.2d 128, 131 In the instant case, appellant's grandmother was murdered the day before the "arrest." The police had a report by appellant's grandmoth......
  • State v. Griffin, No. 69733
    • United States
    • Missouri Supreme Court
    • July 26, 1988
    ...sufficient to warrant a reasonably cautious person to believe that the person to be arrested has committed the offense. State v. Giffen, 640 S.W.2d 128, 131 (Mo.1982). Probable cause does not require that an informant be one whose reliability has previously been established. The true inquir......
  • Request a trial to view additional results

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