State v. Morris, 12879

• Court: Missouri Court of Appeals
• Writing for the Court: CROW; GREENE, C.J., FLANIGAN, P.J., and TITUS
• Citation: State v. Morris, 662 S.W.2d 884 (Mo. App. 1983)
• Decision Date: 08 December 1983
• Docket Number: No. 12879,12879
• Parties: STATE of Missouri, Respondent, v. Charles MORRIS, Appellant.

Page 884

662 S.W.2d 884

STATE of Missouri, Respondent, v. Charles MORRIS, Appellant.

No. 12879.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 8, 1983.

Motion for Rehearing and to Transfer to

Supreme Court Denied Dec. 23, 1983.

Application to Transfer Denied

Jan. 17, 1984.

Frank V. DiMaggio, Asst. Public Defender, Judicial Circuit 31, Springfield, for appellant.

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

CROW, Judge.

Charles Morris ("defendant"), tried by jury for capital murder, § 565.001, RSMo 1978, was found guilty of murder in the second degree, § 565.004, RSMo 1978. The jury assessed punishment at 50 years' imprisonment, § 565.008.2, RSMo 1978, and the trial court imposed that sentence.

Defendant appeals, alleging juror misconduct, instructional error, improper prosecutorial argument, and erroneous admission of evidence. Defendant also complains about denial of his request for continuance, and about the endorsement of a State's witness on the information during trial.

The victim was Dennis Callaway. He died from a gunshot wound through the heart. Inasmuch as defendant does not dispute the sufficiency of the evidence to support the verdict, we summarize only such evidence as is necessary to rule the assignments of error.

About 8:30 p.m. Saturday, January 30, 1982, Callaway and a friend, John Ettleman, left Callaway's apartment in Lamar and drove to Golden City in Callaway's Oldsmobile. Their destination was the residence of David Arles and his brother Kenneth, where they planned "to get together to arrange a deal on some marijuana." Ettleman had scheduled the rendezvous by phoning Steven Ianniello, a resident of Carthage, hours earlier.

Upon arrival at the Arles' residence, Ettleman went to the door and obtained David Arles' permission for Callaway to enter. Callaway took a suitcase containing about two pounds of marijuana from the Oldsmobile trunk and entered the house, accompanied by Ettleman. Ettleman thought the marijuana would sell for about $800, and he expected to receive part of that sum for setting up the sale.

Ianniello was seated in the living room when Callaway and Ettleman entered. Ettleman removed his coat and boots, and sat down. Callaway remained standing by the door, near the suitcase.

The four--Callaway, Ettleman, David Arles and Ianniello--talked a few minutes. During the conversation, David Arles, on several occasions, "adjusted" a stereo that had been playing "fairly loud" when Callaway and Ettleman arrived. Ianniello left the room three or four times, entering an adjacent bedroom. Each time Ianniello returned, except the last, he closed the bedroom door.

On his final return, Ianniello left the door ajar and "flipped up the volume" on the stereo to "maximum." Simultaneously, defendant stepped from behind the bedroom door holding a revolver, some 15 feet from Ettleman. Defendant shot at Ettleman. The bullet entered Ettleman's mouth, split his tongue and "removed a few teeth." Ettleman fell on his stomach, facing the front door.

Ettleman heard three more gunshots and saw Callaway making a "resisting effort." Ettleman then lost vision because of blood.

A few seconds later Ettleman saw Callaway on the floor and defendant holding the revolver. Defendant, Ianniello and David Arles moved behind Ettleman. Ettleman heard Ianniello say, "John's not dead yet; you'll have to shoot him again."

Ettleman recalled defendant saying, "Did you see where I shot John that first time?"

Ettleman was shot again, this time in the back near his neck. Ianniello and David Arles then removed Ettleman's wallet and personal belongings. Thereafter, Ettleman saw Callaway's possessions being removed.

Callaway was taken from the room, then the trio carried Ettleman outside to Callaway's Oldsmobile and put Ettleman on the back seat.

Shortly thereafter, the trio got in the front seat, Ianniello driving. They drove 20 to 30 minutes, during which time Ettleman overheard defendant say he hoped Callaway and Ettleman enjoyed the morphine because they certainly deserved it. Ettleman inferred from this that defendant believed Callaway and Ettleman had stolen some morphine from Ianniello and David Arles a few days earlier. Ettleman also heard defendant say he was going to Kevin Patrick's house. Ettleman knew Patrick lived several miles east of Carthage.

Near the end of the journey, the Oldsmobile turned on a gravel road and went a mile or two farther before stopping.

The trio dragged Ettleman from the Oldsmobile and "dumped" him in a "wooded area" 15 to 20 feet from the road. Then, they removed Callaway's body from the trunk, dragged it to where Ettleman lay, and "dropped" it on Ettleman's legs. The trio then drove away in the Oldsmobile.

It was "cold and snowing," with perhaps three inches of snow on the ground. Ettleman, at this point, was wearing only a "thin shirt," jeans and socks. Ettleman put on Callaway's boots and coat and began walking. Eventually, he reached a house and explained his situation to the occupants, who notified the sheriff's office and called an ambulance. The house was within a quarter mile of the Patrick residence.

Jasper County deputy sheriff Freddie Garrison was the first officer to reach the house where Ettleman was, arriving about 11:00 p.m. An ambulance and other officers, including deputy sheriff Steve Weston, arrived soon afterward.

Ettleman, by this time, was having difficulty talking, so he wrote the names of defendant, Ianniello, David Arles, Kenneth Arles and Kevin Patrick on a paper. Ettleman told Weston what had happened at the Arles' residence, identifying defendant and David Arles as the two persons who had shot him. Ettleman explained that Callaway was dead, and gave directions for finding the body. Ettleman was then taken by ambulance to a hospital.

Weston, Garrison and others began searching for Callaway's body. Garrison found it within an hour. He checked for vital signs, but detected none.

Weston, Garrison and other officers then went to Kevin Patrick's house and arrested him for "investigation." He directed the officers to the home of his cousin, Jerry Patrick, at the "north edge of LaRussell" in Lawrence County. The officers went there and were allowed inside by Jerry Patrick. They found defendant asleep on a couch and arrested him for investigation of homicide. Defendant was taken to the Jasper County jail.

At the jail, around 3:00 a.m., January 31, investigator James Manning of the Jasper County sheriff's office took all of defendant's clothing, including his socks, and "bagged" them as evidence.

Robert Lawrence, a Jasper County deputy sheriff, performed a "gunshot residue" test on defendant's hands that same date (January 31). This procedure consisted of dipping "swabs" into a "control substance" and rubbing the swabs across defendant's hands. Subsequent examination of the swabs by a chemist indicated defendant could have shot a firearm, but the chemist could "not say definitely."

Meanwhile, another Jasper County deputy sheriff telephoned Sheriff L. Ron Jeffries of Barton County and relayed the information furnished by Ettleman. Jeffries, aided by the prosecuting attorney of Barton County, obtained a search warrant for the Arles' residence. Jeffries, Weston, Garrison and several other officers went to Golden City, reaching the Arles' residence between 3:00 and 4:00 a.m., January 31. David Arles responded to Jeffries' knock, and was arrested for investigation of capital murder. The officers entered and found Ianniello in a bedroom. He was also arrested for investigation of capital murder. There were no other occupants in the house.

Jeffries saw what appeared to be blood on the carpet, and cut out some pieces of carpet for evidence. He also noticed a bedspread and sheet hanging over the entrance to the kitchen, and observed what appeared to be blood on the sheet. He took the bedspread and sheet as evidence. Garrison saw two stereo speaker covers with what appeared to be blood on them. He collected them as evidence.

Blood specimens were taken from Ettleman, and from Callaway's body, and delivered to a serologist. The serologist compared those specimens with stains on the items removed from the Arles' house. Bloodstains consistent with Callaway's blood were found on one of the pieces of carpet and on both speaker covers. Bloodstains consistent with Callaway's blood, together with bloodstains consistent with Ettleman's blood, were found on the bedspread. Bloodstains consistent with Ettleman's blood were found on the sheet.

The serologist also examined the socks removed from defendant by Manning, and found bloodstains consistent with Callaway's blood on one of them.

Defendant testified he was not at the Arles' house on the night of January 30. Defendant said he spent several hours that evening in various bars before going to the Kevin Patrick home about 10:30 p.m. Later, according to defendant, David Arles came by, and following that, defendant went with Jerry Patrick to the latter's home, where the arrest occurred. Defendant added that he had shot a pistol the afternoon of January 30.

Stephen Meyers testified he was with defendant in the bars on January 30, and drove defendant to the Kevin Patrick home.

Defendant's first point asserts the trial court erred in denying defendant's motion for mistrial after the alternate juror entered the jury room when the jury retired to deliberate.

Twelve jurors and an alternate, § 494.065, RSMo 1978, as amended by Laws 1979, p. 627, heard the evidence. The alternate accompanied the jury when it departed the courtroom to deliberate. Three minutes later, the court advised counsel that the bailiff indicated the jury wanted the exhibits. The court instructed the bailiff to take the exhibits to the jury. Seven minutes thereafter, the bailiff, on order by the court, brought the alternate juror to the bench. This colloquy followed:

"THE COURT:...