State v. Holliman, 36150

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: McMILLIAN; GUNN, J., concurs in result and concurs in separate concurring opinion by SIMEONE; SIMEONE
• Citation: 529 S.W.2d 932
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Chester Lee HOLLIMAN, Defendant-Appellant. . Louis District, Division Three
• Docket Number: No. 36150,36150
• Decision Date: 04 November 1975

Page 932

529 S.W.2d 932

STATE of Missouri, Plaintiff-Respondent, v. Chester Lee HOLLIMAN, Defendant-Appellant.

No. 36150.

Missouri Court of Appeals, St. Louis District, Division Three.

Nov. 4, 1975.

James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

Defendant was convicted by a jury of arson and murder in the first degree. The Circuit Court of the City of St. Louis entered judgment on the jury's verdict and sentenced defendant to serve consecutive sentences in the custody of theMissouri Department of Corrections of forty (40) years for the arson conviction followed by life imprisonment for the murder in the first degree conviction.

Four issues are raised: (1) the admissibility of evidence of offenses other than the offense charged; (2) the propriety of permitting one witness to testify as to an identification made by another witness; (3) the permissibility of allowing a jury view of a photograph of the deceased; and (4) the effect of the refusal of the court exclude a prospective juror for cause, thereby making defendant use one of his peremptory challenges to excuse said juror.

On April 5, 1973, at or about 7:00 P.M., defendant was observed by Mrs. Bernice Atkins, a niece of his wife, Allimetria Holliman, kicking and beating on Mrs. Holliman's apartment door. Both Mrs. Holliman and Bernice lived at 5777 Westminster in a six-family, three-story apartment complex. Bernice lived on the second floor and Mrs. Holliman on the first floor. When Bernice heard the noise, she stepped outside her apartment to investigate. Standing on the second floor landing, she called to defendant, who fired a shot at her. The pellet struck the wall and fell on the steps leading to the second floor landing.

Just before defendant fired at Bernice, he had successfully opened his wife's apartment door. He entered and beat her over the head with the butt end of the rifle. Bernice came quickly to help her aunt. She was able to subdue defendant long enough for Mrs. Holliman to get free and run upstairs to telephone the police. When Bernice was no longer able to contain him, defendant shoved her down and left.

Officer Martin arrived at or about 7:30 P.M. After being told what had happened, he put out an arrest order for defendant. Prior to taking Mrs. Holliman to the hospital for treatment, Officer Martin noticed the broken lock and the debris, and found a spent shell casing near Mrs. Holliman's apartment door. Officer Powell, a member of the Evidence Technician Unit, who arrived at about 7:57 P.M., recovered a spent bullet from the steps to the landing.

Willie Thompson, an attendant at a service station at 5748 Delmar Boulevard, the first street to the north of Mrs. Holliman's apartment, identified defendant as the person to whom he had sold five gallons of gasoline in a metal container between 10:15 and 10:30 P.M.

After Mrs. Holliman's return to her apartment from the hospital between 11:00 and 11:15 P.M., she heard a dog barking outside. When she looked out her window, she saw defendant coming from under the house. Immediately thereafter she noticed smoke seeping through her floor and called the fire department. When the firemen arrived, Mrs. Holliman was told to leave the building. Outside she was joined by Bernice, and while they were talking to Officer John Summers (the deceased), Mrs. Holliman saw defendant on the southside of the street. He fired a shot at her which hit her coat shoulder. Both women ran back into the apartment and Officer Summers pursued defendant. The last time that either woman saw Officer Summers, he was chasing defendant between the 5773 Westminster apartment and a vacant lot to the east thereof. After defendant and the deceased disappeared behind 5773 Westminster, Mrs. Holliman heard a soft shot, like the one defendant had fired at her earlier, followed by two loud shots. Bernice heard the same reports--a soft one, like a .22 shot, followed by two loud ones.

After Officer Summers failed to answer four radio calls, a search for him was begun. Later two fellow officers found him unconscious behind 5773 Westminster. He was taken to St. Luke's Hospital where he was pronounced dead on arrival.

During the autopsy a pellet was removed from the deceased and subsequently turned over to the police laboratory. At the rear of 5773 Westiminster, a police officer recovered a .22 caliber casing and Officer Summers' revolver, which held two empty shells and five live bullets.

On April 5, 1973, Charles Iison, owner of Pearlman's Sporting Goods Store, positively identified defendant as the person to whom he had sold a single shot .22 caliber rifle and one box of .22 caliber shells. According to Mr. Iison, a single shot rifle 'has to be open, a shell inserted, close it, the bolt brought down and then the gun is fired. You would have to open the bolt each time it would kick the empty shell out and then stick another shell in, one shell at a time. . . . (Y)ou have to pull the bolt back each time the empty shell comes out and you put another shell in.'

There is no controversy that the pellet recovered from the body of Officer Summers, the pellet on the stairwell and the shell casing recovered from the hallway and from the rear of 5763 Westiminster had all been fired from the .22 caliber rifle purchased by defendant. Nor is there any controversy that the fire was of an incendiary origin. When defendant was taken into custody, he had in his possession the rifle in question. After being advised of his constitutional rights, defendant stated that he was out to get his wife because she had been seeing another man.

Defendant contends that the court erred in admitting testimony of his assault upon his wife and niece for the reason that these assaults were crimes for which he was not charged. Defendant admits that there are five (5) general exceptions with respect to the exclusionary rule regarding evidence of other crimes, one of the exceptions being motive. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1954); and State v. Wing, 455 S.W.2d 457, 464 (Mo.1970). The test as to whether evidence of other distinct crimes falls within one of the exceptions is the logical relevancy of the evidence to prove a material fact in issue. If logically relevant, the evidence is not to be rejected merely because it incidentally proves defendant guilty of another crime. On the other hand, if the court does not clearly perceive the nexus between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt and the evidence rejected. State v. Reese, supra, 274 S.W.2d at 307. In Billings v. State, 503 S.W.2d 57, 60 (Mo.App.1973), an arson case, the court found testimony that the occupant of a fire-bombed house had caused the police to raid defendant's house to be relevant to show defendant's motive for the five-bombing. See also State v. Hermann, 283 S.W.2d 617, 621 (Mo.1955).

In State v. Bolden, 494 S.W.2d 61 (Mo.1972), the court ruled that evidence that defendant, one month prior to the shooting for which he was convicted, had broken his wife's jaw and threatened to harm her if she reported the assault, tended to show motive and intent and was properly admitted.

Here defendant, when taken into custody, told the officers that he was out to get his wife. Thus, his assault upon his wife and her niece gave credibility to the officer's testimony. The fact that defendant was subdued and thwarted in his assault upon his wife would indicate the likelihood that his attempt, approximately four hours later, to burn down the building in which his wife was located was intentional and was motivated by his earlier unsuccessful efforts 'to get' his wife. We rule this point against defendant.

The state concedes that it was error for the trial court to permit a police officer to testify that another witness, Willie Thompson, had identified a photograph of defendant; but urges us to consider such error harmless and therefore, not prejudicial. Defendant, to support his contention in this regard, refers us to State v. Degraffenreid, 477 S.W.2d 57 (Mo. Banc 1972). It is true that Degraffenreid held that testimony by a police officer that the state's sole eyewitness to the crime had identified the defendant by means of a photograph and again in a lineup was inadmissible hearsay. On the other hand, the Degraffenreid court noted that an error of this sort did not in itself warrant a reversal absent a showing of prejudice to the defendant. In Degraffenreid the challenged testimony was intended to buttress the direct testimony of the state's only eyewitness. Here the challenged testimony was intended to buttress the circumstantial testimony of one among many witnesses. First, Mrs. Holliman testified that she saw defendant coming out from under the side of the apartment building, and then immediately she discovered smoke coming through her floor. Officer Driscoll, a member of the Fire and Arson Squad, testified that the fire had started in the basement of the apartment building and that it had been purposely set. In addition to Willie Thompson's testimony as to the identity of defendant, Thompson also identified the five gallon gasoline can, found at the scene, as the container in which he had put the gasoline. His identification of the can was based upon the pullout spout on the top of the container. Consequently, under the circumstances shown herein--testimony that defendant was seen coming from under the apartment, and immediately thereafter smoke was seen coming through the floor; positive testimony that fire began in the basement, and that the five gallon can, debris and rags found there smelled of gasoline; and finally the testimony that the can found in the basement was the same container in which defendant had purchased the...