State v. Long
| Decision Date | 20 August 1997 |
| Docket Number | Nos. 20456,21286,s. 20456 |
| Citation | 951 S.W.2d 679 |
| Parties | STATE of Missouri, Respondent, v. Michael Brian LONG, Appellant. Michael B. LONG, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel G. Cierpiot, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Appellant guilty of two felonies:
Count I: assault in the second degree, § 565.060.1(2), RSMo Cum.Supp.1993;
Count II: armed criminal action, § 571.015.1, RSMo 1986.
The jury assessed punishment at six months' imprisonment on Count I and three years' imprisonment on Count II. The trial court imposed those sentences, ordering that they run concurrently. Appellant brings appeal 20456 from that judgment.
While that appeal was pending, Appellant filed a motion to vacate the judgment and sentences per Rule 29.15. 1 The motion court denied relief after an evidentiary hearing. Appellant brings appeal 21286 from that judgment.
We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.
The first of Appellant's two points relied on pertains to this appeal. It avers the evidence was insufficient to support the verdicts.
The standard for appellate review of the sufficiency of the evidence to support a conviction is stated in State v. Grim, 854 S.W.2d 403 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). The appellate court accepts as true all evidence favorable to the State, including all reasonable inferences drawn therefrom, and disregards all evidence and inferences to the contrary. Id. at 405. Review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the accused guilty beyond a reasonable doubt. Id.
The Grim standard echoes the due process standard announced by the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Grim, 854 S.W.2d at 405.
Viewed favorably to the verdicts, the evidence showed that between 3:00 and 3:45 a.m., July 27, 1994, Terry Lynn Smith and Ricky Lee Boone were inside the residence of Smith's parents in Springfield. Smith heard "loud music" outside. He and Boone went out. They saw a truck; two occupants were in it.
Smith noticed the passenger was wearing a blue bandana "right below the eyes, across the nose." According to Smith, the passenger said, "Come out to the truck, I've got something for you."
Boone quoted the passenger as saying, "Come out here, I want to show you something."
Both Smith and Boone described the passenger's voice as male; both characterized its tone as "mad."
Smith told the jurors that someone in the truck called him a "slob." The ensuing segment of Smith's testimony is the basis of Appellant's claim of error in appeal 21286. To maintain continuity in narrating the evidence, we set forth the dialogue now:
"Q. Does that word slob mean anything to you?
A. Not really, just--I guess it's some kind of gang related.
Q. All right. Is it a derogatory phrase for a gang?
[Appellant's lawyer]: Objection, leading.
Q. (By [Prosecutor] ) Let me rephrase it. Do you know what it is supposed to mean?
A. Yeah.
Q. And what does it mean?
A. It's something they call like a Blood, like a slob, you know, it's kind of--I don't know.
Q. Is it supposed to be an insult or--
A. Yeah, pretty much.
Q. Were you a member of the Bloods?
A. No, I just associated with some.
Q. You knew some?
A. Yeah.
Q. And what color do Bloods usually wear?
A. Red.
Q. And who are their opponents, so to speak?
A. Usually the Crips.
Q. What color do the Crips wear?
A. Blue."
Boone told the jurors he and Smith tried to tell the passenger to get out of the truck. Boone explained:
Boone and Smith approached the truck. It began moving away. Boone saw "somebody hanging out the [passenger] window ... looking back at us."
Boone and Smith saw two or three "sparks" come from the passenger window. Simultaneously, they heard sounds.
Smith described the sounds as, "Blam, blam, blam."
Boone described the sounds as "a little popping noise." He concluded, "It was a little gun."
The truck proceeded to a corner, turned, and disappeared.
Smith's father called the police.
Officer Kelly Roth of the Springfield Police Department was on duty in a marked patrol vehicle. He received a dispatch about the incident, including a description of the truck.
Roth started north toward the scene. En route, he saw a southbound truck approaching him. It matched the description in the dispatch.
Roth turned around and began following the truck at a distance of about twenty feet. He did not activate the emergency lights on his vehicle, but did focus his spotlight on the rear of the truck. The truck contained two occupants.
As the truck went past a quarry, Roth saw the passenger extend his arm outside the window and throw a gun toward the quarry. The gun struck a fence and "bounced into the grass."
Roth explained that "a big pool of water" is in the quarry. Had the gun cleared the fence, the gun would have gone "down into the water." According to Roth, "It's a pretty deep pool."
Roth radioed headquarters and requested a unit to stand by the gun site until he could return. Roth continued following the truck.
The truck eventually stopped at a house where the driver lived. Roth directed the occupants to remain in the truck until other officers arrived. Upon their arrival, Roth removed the driver and the passenger from the truck. The passenger was Appellant.
Roth searched the truck and found a live "twenty-five caliber round" on the floor between the passenger seat and the door. He also found a blue bandana in the glove compartment.
Roth then returned to the site where Appellant jettisoned the gun. An officer was protecting the area.
Roth immediately found an Excam twenty-five caliber semiautomatic pistol. It was cocked; a live round was in the chamber. Four rounds were in the magazine, which had a seven-round capacity. The bullets in the pistol were the same brand and caliber as the one Roth found in the truck.
At trial, Smith and Boone were shown photographs of the truck from which Roth removed Appellant and the bullet. Smith and Boone identified the truck as the one from which the shots were fired.
Count I was submitted to the jury on a verdict-directing instruction hypothesizing Appellant attempted to cause physical injury to Boone by means of a deadly weapon by shooting at him.
Appellant's first point avers the evidence was insufficient to support that hypothesis "in that the evidence showed at most that [Appellant] fired a gun, but did not establish that he thereupon attempted to cause physical injury to ... Boone, because the evidence did not prove that [Appellant] pointed the gun at [Boone] when he fired."
The point tacitly concedes the evidence was sufficient to support a finding that Appellant is the person who fired the shots described by Smith and Boone, and that Appellant fired them from the pistol recovered by Roth near the fence abutting the quarry. We hold the evidence amply supports such a finding.
The pivotal issue, as recognized by Appellant, is whether the evidence was sufficient to support a finding that he fired the shots in an attempt to cause physical injury to Boone.
On that subject, Appellant points out that Smith conceded on cross-examination that he never saw a gun, hence he had no idea which direction it was pointing. Appellant also reminds us that Boone avowed he could not see a gun, and Boone further testified: "He could have been shooting in the air for all I knew ... I just seen ... the shots, the sparks."
The State responds by directing us to the following exchange during the prosecutor's redirect examination of Boone:
"Q. ... Do you recall talking to Bob Alexander [an investigator] from our office on September the 1st, 1994, at 8:33 in the morning, and telling--this was the question:
'When they drove off and you heard and saw the shots fired, could you tell which direction the weapon was pointed?
'Answer: It was pointed in our direction.'
Do you recall making that statement?
A. I don't really recall it, but like I said, you know, he was pointing in our direction from what I seen, you know. The gun--I don't know if the gun was in our--but he was.
Q. Pointed in your direction?
A. Yeah, he was pointed back and looking back at us.
....
Q. ... do you recall telling [Alexander], on September 1st, 1994, on that tape, that the gun was pointed in your direction?
A. It's hard to say. I don't remember saying it, no.
Q. Would it help for us to play the tape for you?
A. It doesn't matter. I mean, you can play it, but I don't remember saying it.
Q. ... Mr. Boone, you've had a chance to refresh your memory by looking at a transcript of a statement you gave our investigator on September 1, is that correct?
A. Yes.
Q. And at this time, again, I'll refer you back. Did you tell him at that time that the gun was pointed in your direction?
A. Yes."
Section 491.074, RSMo 1994, reads:
"Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of an offense under chapter 565 ... RSMo, shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement."
Because of the above statute, Boone's statement to Alexander that the gun was pointed in Boone's direction was substantive evidence of where the gun was aimed. State v. Bowman, 741 S.W.2d 10, 12-13 and (Mo. banc 1987), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 60 (1988); State v. Pickens, 780 S.W.2d 355, 356 (Mo.App. E.D.1989...
To continue reading
Request your trial
-
Helmig v. State
...and could reasonably have concluded that another objection would emphasize and highlight the unfavorable testimony. State v. Long, 951 S.W.2d 679, 683-84 (Mo. App. 1997). With respect to the fact that movant was carrying weapons when he was arrested, trial counsel could have reasonably deci......
-
State v. Adams
...his consciousness of guilt. See Sapien, 337 S.W.3d at 77; State v. Holleran, 197 S.W.3d 603, 611 (Mo.App.2006); State v. Long, 951 S.W.2d 679, 683 (Mo.App.1997); State v. Smith, 11 S.W.3d 733, 737 (Mo.App.1999). Evidence of consciousness of guilt contributes to a finding of overwhelming evi......
-
Bradley v. State
...in that particular objection. Bradley has not overcome the presumption that Counsel used sound trial strategy. See State v. Long, 951 S.W.2d 679, 683-84 (Mo.App. S.D.1997) (finding that movant did not overcome presumption that counsel used sound trial strategy when counsel testified he did ......