State v. Loggins, WD

• Decision Date: 30 November 1982
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Robert L. LOGGINS, Appellant. 33146.
• Court: Missouri Court of Appeals

Page 551

647 S.W.2d 551

STATE of Missouri, Respondent, v. Robert L. LOGGINS, Appellant.

No. WD 33146.

Missouri Court of Appeals,

Western District.

Nov. 30, 1982.

As Modified Feb. 8, 1983.

David M. Strauss, Public Defender, Michael C. Teel, Asst. Public Defender, Columbia, for appellant.

John Ashcroft, Atty. Gen., William K. Haas, Asst. Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.

MANFORD, Presiding Judge.

This is a direct appeal from a judgment entered in accordance with a jury conviction for assault, first degree, a Class A felony under § 565.050, RSMo 1978. The judgment is affirmed.

On appeal, three points are presented which charge the trial court with error in (1) overruling appellant's motion for continuance premised upon the unavailability of certain defense witnesses; (2) overruling appellant's challenge to a juror for cause; and (3) overruling appellant's motion for continuance because of the heat in the courtroom.

While appellant makes no specific challenge to the sufficiency of the evidence, a summary of pertinent evidence must be included because of the points raised.

On September 1, 1980, appellant was an inmate at Renz Farm, a Missouri correctional facility. At about 8:00 or 8:15 p.m. on the evening of September 1, 1980, a fight involving several inmates broke out in the "yard". Respondent called three correctional officers who were on duty that evening.

In summary, these officers testified that after becoming aware of a disturbance or fight in the yard area, they entered that area from different approaches and observed several inmates fighting. Concerning appellant, these officers testified as follows:

The first officer stated he entered the yard area and observed appellant and one Anthony Thompson (the victim of the charged assault) fighting. Thompson was on his hands and knees, and appellant struck Thompson on the top of the head with a wooden mallet. (This was described as a device used for laundry of prison clothing resembling a croquet mallet.) The second blow caused the mallet to break. Thompson fell to the ground. The officer took the stick portion of the mallet from appellant and threw it over the fence. (The item was later retrieved and introduced as an exhibit at trial.)

The officers began separating the inmates and leading them through gates out of the yard area. Another officer was assisting Thompson, who could not walk. As Thompson and the officer approached the gate, appellant struck Thompson in the face with his fist. The second officer testified that after learning of the disturbance, he entered the yard and observed a fight in progress between several inmates. This officer observed appellant with a length of steel pipe, and appellant was jabbing and striking Thompson with it. This officer took the pipe from appellant and "shoved it" through the fence. (This item was later retrieved and introduced as an exhibit at trial.) This officer stated that he observed appellant strike Thompson on the head with the length of pipe two or three times, while Thompson was "half standing and half laying between the fence and the ground." After taking the pipe from appellant, this officer tried to break up other fights, and appellant left his immediate presence. This officer later observed appellant striking Thompson with the mallet. This officer heard appellant tell Thompson while appellant was striking Thompson with his fists, "I am going to put you out for good you mother fucker."

The third officer testified that he heard someone yell, "fight", and he entered the yard area. This officer first observed appellant and another inmate named Nauman engaged in a fight. He then observed appellant enter the prison laundry room and return to the yard with the laundry mallet. He observed appellant approach Thompson and strike Thompson several times with the mallet. This officer later observed appellant with a length of pipe approach and strike Thompson with the pipe. This officer again observed appellant strike Thompson with his fist as Thompson approached the exit gate. All three officers testified that Thompson was injured (extent unknown) and blood was spattered. Thompson's injuries were confirmed by subsequent medical testimony. The injuries included multiple abrasions and bruises, plus a large scalp laceration and a fractured skull. The three officers also testified that they never observed Thompson strike appellant.

Part of the state's case included reading the jury the previous trial testimony of Anthony Thompson. This testimony becomes a focal point of appellant's first alleged error. For the moment, it suffices to say that Thompson had very little recall about the details of the night of September 1, 1980. He stated that he did remember a fight. When asked, "Between who?", he responded, "I am not sure who it was." When asked, "Do you remember being struck on the head?", he responded, "No."

The defense then offered evidence. Nine witnesses who were inmates at Renz Farm on September 1, 1980 were called. In addition to these witnesses, the jury was read the previous trial testimony of former inmate, Victor James. In summary, the James testimony revealed that James observed Thompson and appellant involved in the "disturbance". James stated that he observed appellant "breaking up a fight" and that he never observed appellant in possession of any type of weapon. James testified that the "disturbance" had originated earlier (at about 5:15 p.m.) in the kitchen area of the dorm, was racially motivated, and erupted later in the yard area. James testified that he never observed the fighting out in the yard area.

The nine witnesses who appeared testified in summary as follows:

Inmate Madison stated that he was sitting on the front steps of the mess dorm and was struck from behind (around the ear and lower back) by Thompson with a pipe. A fight erupted, involving other inmates. This fight lasted some 10-12 minutes. In response to questions, he stated that he did not observe anyone strike appellant, and did not observe appellant strike Thompson. On cross-examination, Madison was asked, "But you don't know if Loggins hit anyone?", and he answered, "No, I couldn't say."

Inmate Phillips, the next witness, stated that there had been fights in the kitchen and another in the dormitory which preceded the fight in the yard. Phillips testified that he never saw Thompson struck by anyone. This witness stated that he observed Thompson stick appellant in the leg with a screwdriver and at that moment, he (Phillips) was struck from behind with a pipe. On cross-examination, Phillips was asked, "If he (Thompson) got hit, you have absolutely no idea who did it?" He responded, "I have absolutely no idea that he got hit."

Inmate Calmese testified that he observed the fighting, got hit himself, and attempted to separate the others. He stated that he did not observe appellant strike Thompson. On cross-examination, he stated that he did not observe appellant or Thompson the entire time the fight ensued, and then answered when asked, "So, if someone hit Thompson, if for instance Loggins hit Thompson you might not have seen that, is that right?" (Answer:) "If he had of hit Loggins, I wouldn't see him." When asked "If Loggins had hit Mr. Thompson, might that have happened without you seeing it?", he responded, "Sir, in the position I was in, I couldn't see how he (appellant) could have did, because I was standing there at the fence." This witness then further stated he did not watch appellant the entire time.

The previous trial testimony of inmate Paige was then read. In summary, Paige testified that he observed a fight between several inmates, including Thompson, but did not observe any weapons (the pipe and mallet) or appellant strike Thompson.

Inmate Steward, the next witness, stated (in summary) that he observed "some" of the fight, but could not "recall" if appellant and Thompson were involved. He stated that he observed no weapons, and did not see appellant strike Thompson.

Inmate Slaughter (a female inmate housed adjacent to the male dormitory), stated that she observed the fight involving several inmates, never observed any weapons, and did not see appellant strike Thompson. She stated that several other inmates struck Thompson.

Inmate Young, also a female inmate, stated she observed several male inmates fighting. She stated she saw Thompson being struck by "some sort of stick or something" by another inmate, not appellant.

Inmate Claybourne, another female inmate, testified that she observed the fight, including a fist-fight between appellant and Thompson. She did not observe any weapons, nor did she know who struck the first blow.

Inmate Sanders testified that the fight started when an inmate named Nauman attacked appellant, and another inmate named Burns attacked yet another inmate named Madison. This witness testified that he never observed any weapons, nor did he ever see appellant strike Thompson. This witness stated that Thompson was not even around appellant during the fight.

Appellant then took the stand. This followed an examination by the court regarding appellant's right not to testify. Appellant acknowledged that he understood and voluntarily chose to testify in his own behalf. In summary, appellant testified that there were a "couple" of fights the night of September 1, 1980. He stated that he sustained injury, including a stab wound in his leg, but did not know who stabbed him. He testified that he observed "pipes" being used in the fight, but no mallets. On direct-examination, he was asked, "Did you during the course of this fight strike Anthony Thompson?", and responded, "No, sir. Not to my knowledge, I didn't strike him." He was further asked, "Is it possible that you did?", and he answered, "As far as in the midst of in the biggest part of it, as far as everyone was trying to break it up at first, before I started...