State v. Moutray, WD
| Citation | 728 S.W.2d 256 |
| Decision Date | 24 February 1987 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Larry A. MOUTRAY, Appellant. 37826. |
| Court | Missouri Court of Appeals |
Robert G. Duncan, Kansas City, for appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Before PRITCHARD, P.J., and MANFORD and KENNEDY, JJ.
This is a direct appeal from a jury conviction for murder, second degree, in violation of § 565.021.1, RSMo Supp. 1984. The judgment is affirmed.
Appellant presents four points which, in summary, charge that the trial court erred (1) in failing to grant a new trial because appellant was denied a fair trial by an impartial jury; (2) in admitting, over objection, evidence of a prior statement of a state witness; (3) in the submission of an instruction on self-defense; and (4) in allowing certain comments, over objection, by the prosecution in final argument.
Appellant makes no challenge to the sufficiency of the evidence, and indeed such a challenge, had it been made, would have been without merit. Thus, a brief summary of the pertinent facts suffices.
At about 1:00 p.m. on January 20, 1985, appellant and his wife left their residence to attend a Super Bowl party at a friend's home. Cherisse 1 Moutray, their daughter, and her two-year-old son lived with appellant and his wife. The daughter and grandson remained home, and upon the departure of appellant and his wife, the daughter telephoned her former husband (the victim) and advised him that he could come over and visit their son. The former husband, Marvin Gourdine, did come to appellant's residence. The daughter, the grandchild, and the former husband went to get something to eat and to rent a movie. The three later returned to view the movie. The evening passed and these three fell asleep in the living room. Appellant and his wife returned home some time around midnight. Their arrival awakened the daughter and the victim. The daughter testified that her mother opened the door and appellant pushed past her mother as he entered the room, thus pushing her mother into the T.V. Appellant and the victim began to fight. The daughter, without success, attempted to break up the fight. She proceeded to the next-door neighbor's to call the police, but the neighbor was not home. Upon her return home, she saw the victim standing in appellant's front yard. The victim's automobile engine was running. The victim yelled to her to get their son, change her clothes, and leave with him. While the daughter was at the neighbor's house, the fight between appellant and the victim had continued inside the house. This fight ended when the victim left the inside of appellant's house. After seeing the victim outside, the daughter re-entered appellant's house. She observed appellant coming down the inside hallway with a shotgun. She tried to stop appellant, struggled with appellant, (during which her nightgown was torn) but appellant ordered her out of the way or he would "hurt her." The daughter got out of the way and appellant went outside. The daughter then locked the front door. The daughter called the police. She told the police, "My dad has a gun after us, 2608 Glenn Street." A neighbor later testified that she heard someone say, "No, don't do it", and then heard a shot. She proceeded to her front window and observed a person stooped over a body. This person then stood up, threw a shotgun across the road, and then began to run toward appellant's house. The neighbor also called the police.
Two St. Joseph, Missouri police officers arrived at appellant's residence. One of the officers pulled his patrol vehicle behind the victim's vehicle. This officer found the victim. The officer attempted to determine if the victim was alive and concluded he was dead. The officer then looked around and observed appellant at his front door. The officer yelled at appellant, telling him to stop. Appellant turned around, looked at the officers, and then entered his residence through a garage door. The officers entered the residence and placed appellant in custody.
Medical evidence revealed that the victim had been fatally shot twice with a .12 gauge shotgun. Medical evidence also concluded that either wound could have been fatal.
Appellant testified on his own behalf. He stated that he and his wife had been to a party and returned home. Upon arriving, they had observed the victim's automobile in their driveway. They found the front door hard to open, and, according to appellant, he thought the victim was holding the front door closed. He stated that he helped his wife push the door open and as they entered, the victim began to beat him. Appellant stated that the fight continued down an inside hallway, and that the victim threatened to kill him. He further stated that he tore a necklace from the victim's neck and at that point, the victim made his threat and left the inside of appellant's residence. Appellant stated that he had known the victim to possess guns, so he went to the bedroom and retrieved the shotgun. Appellant stated that he looked outside and saw the victim backing out of his driveway, but the victim's automobile turned the wrong way to proceed up the road. The road is a dead end just beyond appellant's residence. Appellant stated that he just wanted the victim to leave. Appellant further stated that he proceeded to the road with the shotgun. He got in front of the victim's automobile. Appellant testified that the victim did not attempt to run him over with his automobile. Appellant stated that it was he who had shouted, "No, don't do it," and that was a statement to the victim for the victim not to get out of his automobile. Appellant stated that the victim got out of his automobile and rushed at appellant. Appellant testified that he thought the victim had a handgun, not because he saw any weapon, but only because he knew the victim owned weapons. (No weapons were ever found on the person of the victim or his automobile.) Appellant stated that as the victim came at him, he shot the victim. At this point, according to appellant, the victim fell into or onto appellant and the shotgun (a .12 gauge pump) discharged a second time. According to appellant, he and the victim fell to the ground with the latter on top. Appellant stated that he tried to get the victim up, became scared, and threw the shotgun into the road. Appellant stated that he never saw or heard the police when they arrived. Appellant also called several witnesses, who testified as to the general reputation of the victim, who was known to have a rash, turbulent, and violent behavior. Other witnesses were called, and they testified as to the general reputation of appellant as a peaceful and non-violent person. The evidence closed. The jury returned its verdict. Judgment and sentence were entered.
A motion for new trial was filed. A hearing was held on this motion, during which a juror was called. This juror, Anthony Majeski, was asked if he recalled being asked during voir dire if he or any members of his family had ever been the victim of a crime. This question was asked of the panel, and this particular juror did not respond. At the hearing, this juror admitted that he remembered the question. He also was asked if his daughter had been the victim of a criminal act in 1978, and the juror answered, "Yes." This juror was then asked and responded as follows:
Q. Bearing in mind the background that we've just discussed about your daughter, was there any reason why you made no response to the questions that I've outlined to you before?
A. Well, I really forgot about it. I didn't remember it.
Cross-examination of this juror established no intentional concealment of the information.
This appeal followed the overruling of post-trial motions. Any further facts pertinent herein are set forth in the disposition of this appeal infra.
Appellant's argument in support of his point (1) asserts that the trial court abused its discretion in not granting a new trial because he was denied a fair trial by an impartial jury upon the failure of juror Majeski to disclose that his daughter had been the victim of a crime.
The evidence adduced at the hearing on the motion for new trial revealed that the criminal act committed upon the juror's daughter was a criminal battery, for which her assailant had been punished by a $1,000 fine. The offense occurred some seven or eight years prior to the trial of the instant case. As noted above, there was no evidence of intentional concealment. The only evidence as to why disclosure was not made by the juror was that he had forgotten the matter.
Whether this juror had forgotten the criminal act upon his daughter some seven or eight years previously presented a fact question for the trial court. It is obvious that the trial court believed the juror had forgotten about the matter. There is nothing upon this record to even suggest, let alone establish, anything to the contrary. The trial court's decision to believe the juror provided a logical basis for the court's decision. It is noted that in State v. Endres, 698 S.W.2d 591 (Mo.App.1985), relied upon by appellant, the crime not disclosed by the venireman had occurred six weeks before, and was a homicide, a crime of equal gravity with the crime of which the defendant therein was charged. Such is not the case in the present action. Therefore, there is nothing to warrant this court's disturbance of the trial court's determination and decision. Stuart v. State Farm Mutual Auto Insurance Co., 699 S.W.2d 450, 456 (Mo.App.1985).
It should be pointed out that the question...
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