State v. Lee

• Decision Date: 12 April 1977
• Docket Number: No. 38103,38103
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donnell LEE, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 934

549 S.W.2d 934

STATE of Missouri, Plaintiff-Respondent, v. Donnell LEE, Defendant-Appellant.

No. 38103.

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

April 12, 1977.

Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

PER CURIAM.

This is an appeal by defendant-appellant, Donnell Lee ¹, from a judgment of conviction entered by the circuit court of the City of St. Louis on May 3, 1976, whereby appellant was sentenced to thirty years in the Department of Corrections for the offense of assault with intent to maim with malice. § 559.180, RSMo. Appellant having been found guilty by a jury and the court having found that appellant came within the provisions of the Second Offender Act, § 556.280, the court imposed sentence. Defendant-appellant appeals. We affirm.

Since the appellant does not, on this appeal, question the sufficiency of the evidence, only those facts necessary for a disposition of the points raised will be stated. For reversal and remand appellant urges that the trial court erred (1) in admitting two photographs of the scene of the offense because they had an inflammatory and prejudicial effect on the jury, (2) in admitting a state exhibit a hatchet found at the scene because it had a prejudicial effect on the jury and overrode any relevancy or probative value it may have had, and (3) in refusing to give defendant's offered instruction of assault with intent to maim without malice aforethought.

We find none of the appellant's points to be meritorious and hence, for reasons hereinafter stated, affirm the judgment of conviction.

The jury could reasonably find the following facts. Miss Doris Duckett had known the appellant, Donnell Lee, for approximately thirteen years and had two children by him. She and her children lived in the City of St. Louis. On September 2, 1975, she and her daughter were examining two of three checks she had received when defendant came to the house. The evidence implied that when he left or "disappeared" one of the checks in the amount of $172.00 and a "Master Charge Account" were "missing and unaccounted for." Some two months later "(i)t was the week of November 1," 1975 Miss Duckett heard from Mr. Lee by telephone. "He asked me if he could come and stay at my house a few days." She permitted him to come and stay. On Tuesday of that week, appellant asked Miss Duckett if she had called the police "on him." She answered that ". . . they sent a police officer to my house to identify some friends of his who had cashed my check and was trying to use my Master Charge." The next day he left the house about 10:00 a. m. and returned about 10:00 p. m. Miss Duckett was under medication to help her sleep and when appellant returned home she was in the kitchen. Appellant came into the kitchen, ". . . opened my basement door and sat down at the kitchen table." After a little while, appellant stated that he had come to kill her and ". . . told me to pray." The medication began to "work on me" and Miss Duckett dozed. After that the appellant ". . . jumped across (the) table and hit me in the chest . . . he hit me in the right jaw and knocked me out of the chair." After he knocked her out of the chair, he hit her on the "left side of the face." He then started to drag her down the basement steps. "He picked me up off the floor and drug me from the basement." During that time he picked up the hatchet off the cabinet which (was) directly behind the basement door. " He propped her up against the cabinet in a sitting position and with an ice pick he took out of his pocket "began stabbing me in the chest."

He stabbed her three times. After that he stood her up and ". . . by that time he had two ice picks, one in each hand and and he just stabbed me in the side, in between the ribs and on side of the stomach." She was bleeding from the face and ". . . I started bleeding from the wounds in the chest." Afterwards Mr. Lee placed the hatchet back up on a wall cabinet; Miss Duckett went into the bathroom and put her bloody robe in the tub and turned the water on. A little later, Miss Duckett's daughter, Blanche Jones, came home about midnight. When she arrived the appellant told her that "him and mother were fighting," and, after noticing that her mother ". . . was stabbed in the chest and there was blood running down (her) forehead," Miss Jones and a neighbor's brother took her to the hospital. ² Miss Jones called the police and a neighbor, Rodney Richardson. When Mr. Richardson arrived, Miss Duckett ". . . was laying their (sic) and blood was coming out of her mouth and she was bleeding from her head." Miss Jones also examined the bathroom and saw her mother's robe and housecoat and the appellant's sweatshirt in the tub. That night the appellant left the house and ". . . carried clothes with him in a suitcase."

In due time, Officers James Burgoon and Laird Kelly arrived at the scene. Officer Burgoon observed several people gathered around an automobile and saw Miss Duckett "laying half in and half out of the car." The people were attempting to put her in the car. They went into the house and observed the kitchen in disarray and the floor full of blood. Officer Kelly saw Miss Duckett bleeding from the head. The people were concerned that she get to a hospital. Officer Kelly entered the house and also found "blood splattered on the floor." From the kitchen he seized from the top of the cabinet a hatchet with a wooden handle. He also observed ". . . some clothing in the bathtub that had water in it, that was wet and red." On cross-examination defendant counsel inquired where the officer recovered the hatchet.

The medical records indicated that Miss Duckett suffered " '(m)ultiple stab wounds with ice pick to right chest' " and lacerations of the scalp.

According to the record, Miss Duckett did not see appellant again until early in January 1976. He was on her front porch, and when the doorbell rang she "peeped through the draperies." Miss Jones was at home. Miss Duckett ran upstairs and told her daughter that the appellant was at the door. The daughter called the police and the neighbor, Mr. Rodney Richardson. When Mr. Richardson was called he "got a gun," loaded it and went up the street. He saw the appellant "kicking on the door." Richardson told him to put his hands up, but appellant replied with an obscenity. Richardson shot the gun once. After that appellant "put his hands in the air." When Officer Louis Clayton came to the house in response to the call, he arrested the appellant.

Defendant was charged in an amended information with a prior conviction and with assault with intent to maim with malice aforethought. Trial was held and the above facts were brought out. During the state's case, certain photographs were introduced as exhibits. Exhibit No. 3 was a picture of the pantry and the basement door where Mr. Lee dragged Miss Duckett. Exhibit No. 5 was a picture of the kitchen showing the cabinet. When Exhibit No. 3 was offered, defense counsel objected ". . . on the grounds that it (is) inflammatory and would cause a prejudicial effect on the jury. There has been sufficient evidence to show the kitchen layout. I think they are of no probative value at all." Counsel also contended that the picture showed that there was blood on the floor. The objection was overruled. When Exhibit No. 5 was offered, counsel objected to the admission but gave no specific reasons. This objection too was overruled.

During the direct examination of Officer Kelly, Exhibit No. 8 the hatchet which he seized was offered and introduced into evidence over objection on the ground that there was no showing that it was connected in any way with the defendant.

The defendant did not testify but introduced certain preliminary hearing testimony of Miss Duckett through a court reporter.

During the conference on instructions, the appellant offered an instruction on assault with intent to maim without malice, MAI-CR 6.24, but the offer was refused.

The jury was instructed on assault with intent to maim with malice and the jury found appellant guilty of that offense. In due time, after a motion for new trial was filed and overruled and allocution granted, appellant was sentenced.

On this appeal appellant contends that (1) the trial court erred in admitting the photographs Exhibit Nos. 3 and 5 for the reason that they had an "inflammatory and prejudicial effect on the jury and offered no probative value;" (2) the trial court erred in admitting the hatchet Exhibit No. 8 into evidence because it too had an "inflammatory and prejudicial effect on the jury that overrode any relevancy or probative value the exhibit may have offered;" and (3) the court erred in refusing to give offered Instruction A because there was sufficient evidence before the jury "to provide mitigating and extenuating facts to arguably show a lack of malice." ³

Appellant argues that the photographs "displayed a large amount of what was apparently the victim's blood on the kitchen floor and table" which were offered for the purpose of inflaming the jury and hence unnecessarily prejudiced the defendant while "offering no probative or corroborative value." He also obliquely contends that, inasmuch as the victim identified him in court and testified as to the nature and extent of her injuries, "the only relevant matter surrounding the photograph(s) was to corroborate the victim's testimony that the assault took place in the kitchen of her home." Accordingly, he contends that the only purpose was to inflame the jury and prejudiced him to such an extent that the prejudice clearly overrode any relevancy or probative value of the photographs.

As to his second point he argues that...