State v. Murphy

• Decision Date: 06 December 1979
• Docket Number: No. 61475,61475
• Citation: 592 S.W.2d 727
• Parties: STATE of Missouri, Respondent, v. Michael MURPHY, Appellant.
• Court: Missouri Supreme Court

Page 727

592 S.W.2d 727

STATE of Missouri, Respondent, v. Michael MURPHY, Appellant.

No. 61475.

Supreme Court of Missouri, en banc.

Dec. 6, 1979.

Rehearing Denied Jan. 15, 1980.

David Robards, Public Defender, Joplin, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Michael Murphy, charged with capital murder, § 559.005, Laws 1975, was convicted by a jury of murder in the second degree, § 559.020, RSMo 1969; and the jury fixed his punishment at life imprisonment. Judgment was entered accordingly March 7, 1979. Appellant questions the court's actions with respect to admission of the murder weapon, defendant's relationship with his girlfriend, and prior recorded testimony; the State's closing argument, and the instruction on justifiable homicide. He also charges ineffective assistance of counsel. Affirmed.

Appellant does not question the sufficiency of evidence to sustain the conviction; and he states evidence which would permit a jury to find:

In the early morning hours of April 10, 1977, Michael Murphy and Judy Bush, his girlfriend, were at the Ruff House bar in Joplin, Missouri. About 1:30 a. m. they left the bar and went to Murphy's automobile parked on the east side of the building. After they got into the car they saw Clinton Tubbs, a/k/a "Taco" walking toward a van parked on the west side of the building. Judy Bush began shouting insults at Taco, calling him a nigger. Taco approached the car and asked if he was the nigger they were talking about. Murphy then drove his car through the parking lot and turned west on the street. As Taco returned to his van, Murphy turned back into the parking lot on the west side of the building, stopped his car about eighty feet from the van, got out of his car, and stood behind the open door with a pistol in his hand. Taco and three companions walked toward defendant's car. Two of the companions walked around the rear of the car to exchange words with Judy Bush. Taco and Bobby Vickers walked slowly toward defendant. Taco stopped about five or six feet from defendant and the two continued to exchange words. Vickers twice attempted to get between them; both times Taco pushed him away. Defendant then shot Taco in the stomach at a range of less than two feet with a .357 magnum pistol. At the time the shot was fired, Taco had his hands at his side; he did not threaten or attempt to strike Murphy, and no person or other obstruction prevented Murphy from leaving the scene in avoidance of the confrontation.

Defendant's version was that Judy Bush was the only one to insult Taco; the defendant had tried to prevent her doing so; that a man stood in front of his car blocking his way; that when Taco came toward defendant he did not stop five or six feet away but walked up and poked defendant in the nose with his finger and struck him in the head causing him to fall back against the car, resulting in the pistol's accidental discharge. Defendant said he carried the pistol for self-protection because he had previously suffered severe head injuries in a motorcycle accident, later aggravated in a bar fight, and was afraid that if he were hit in the head he would be killed. He introduced medical records of this injury.

Appellant charges the court abused its discretion in receiving the murder weapon into evidence. He argues that because defense counsel had stipulated that this weapon belonged to defendant and that a bullet from it had entered the victim's body, the gun itself was rendered irrelevant to any material issue in the case, and that because the gun, a .357 magnum, was so large, its viewing by the jury was inflammatory.

Demonstrative evidence is admissible if it throws any relevant light upon a material matter at issue and its admission is a matter resting within the discretion accorded the trial judge. State v. McRoberts, 485 S.W.2d 70 (Mo.1972). If relevant, such evidence should not be rejected because it also tends to arouse prejudice in the jury. State v. Swenson, 551 S.W.2d 917 (Mo.App.1977). In this case the gun was relevant in that it negated defendant's contentions that he was a peaceful, nonagressive man; that the gun's discharge was accidental; and that defendant lacked the requisite intent.

Appellant charges the court abused its discretion in requiring defendant to disclose on cross-examination that he had been sleeping in the same bed with Judy Bush. He contends such was irrelevant, highly inflammatory in that it showed defendant guilty of adultery, and prejudiced his right to a fair trial.

A defendant who elects to testify in his own behalf may be contradicted and impeached as any other witness. § 546.260 RSMo, State v. Roberson, 548 S.W.2d 280 (Mo.App.1977). In the cross-examination of a defendant who testifies in his own behalf the prosecution is not confined to categorical review of the evidence given by defendant on direct examination but may examine him in detail as to matters generally referred to in his examination in chief. State v. Gish, 376 S.W.2d 618 (Mo.App.1964). Thus, if in direct examination defendant refers in a general way to a subject, he may then be cross-examined in detail on that subject. State v. Dalton, 433 S.W.2d 562 (Mo.1968). Defendant testified on direct examination that he lived with Judy Bush and that he and she were not married. To that, cross-examination added only that they slept in the same bed, a fact the jury likely had inferred from direct examination. Such questioning was within the scope and cumulative of matters brought into the case by defendant upon his examination in chief. See, State v. Burchett, 302 S.W.2d 9, 18-19 (Mo.1957); State v. Johnson, 586 S.W.2d 437, 442 (Mo.App.1979).

Appellant charges the court erred in permitting the State to introduce the prior recorded testimony of two witnesses found to be unavailable at the time of trial. He asserts the State did not show due diligence in its attempt to secure presence of the witnesses.

The right of confrontation and cross-examination is an essential and fundamental requirement for a fair trial. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Mo. Const. art. I § 18(a) cl. 3. An exception exists where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by the defendant. A witness is not unavailable unless the prosecutor has made a good-faith effort to obtain his presence at trial; State v. Brookins, 478 S.W.2d 372 (Mo.1972); and the State must show the exercise of reasonable diligence to secure attendance of the witness at trial. State v. Purl, 183 S.W.2d 903 (Mo.1944). What constitutes due diligence turns on the facts of the particular case. State v. Lloyd, 337 Mo. 990, 87 S.W.2d 418 (1935).

The court's ruling comported with the foregoing on the showing made in this case. Upon first trial of defendant, which ended in a mistrial, the State called Danny Patrum and Louis Casper Briant, III. The State had no reason to anticipate difficulty in recalling them for the second trial because Patrum had held a steady job and Briant had been around Joplin for several years. Approximately two weeks before the case was to be retried the State issued subpoenas for Patrum and Briant which were returned Non est. Thereafter, the prosecutor sent an investigator to locate them, and he learned that one was in Colorado and the other "somewhere in the South." The testimony in question was given at a former trial of the same man for the same offense. It was not, as in many of the cases where the transcript has been held inadmissible, testimony from a preliminary hearing where the cross-examination was perfunctory at best or waived altogether. See, e. g., State v. Deyo, 358 S.W.2d 816 (Mo.1962); State v. Lloyd, 87 S.W.2d 418 (Mo.1935). In this case both witnesses had been subjected to full cross-examination; and the substance of the testimony was cumulative in nature. Each testified to the occurrence as did five other witnesses for the State, Judy Bush, Greg Watts, Bobby Vickers, David Vickers, and Larry Aggus. The testimony of Patrum and Briant covered less than 15 pages of the 450 pages of transcript, and served to corroborate the other State's witnesses. Counsel succeeded at this trial in excluding some of the transcript testimony.

Appellant charges the court with several instances of "plain error" in connection with the State's closing argument. Before review of these matters it is appropriate to note that Rule 27.20(c) permits consideration of "plain errors" affecting substantive rights when they result in manifest injustice or miscarriage of justice. The rule does not cover all trial error, should be exercised sparingly, cannot be used as a vehicle for review of every alleged trial error which is not asserted or preserved for review, and is limited in its application to cases where there is a manifestation and showing that injustice or miscarriage of justice results if the rule is not invoked. Ordinarily, alleged errors on closing argument do not justify relief under this standard unless they are determined to have a decisive effect on the jury. State v. Davis, 566 S.W.2d 437, 446-447 (Mo. banc 1978).

Appellant's first such charge stems from two excerpts of the State's closing argument:

"I suggest to you the proper and correct punishment in this case . . . That you impose punishment of life imprisonment and allow the other authorities, if they decide to let Mr. Murphy go before the end of that term."

". . . it's like I said if someone else determines at a later point he ought to be let out and been able to study him a little more than we have, we are not going to disagree with that."

Citing State v. Lewis, 443 S.W.2d 186 (Mo.1969), appellant argues that the effect of the remarks was to influence the jurors to shift the burden of their responsibility to fix punishment to parole...