State v. Patton

• Decision Date: 31 December 1979
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Lee Roy PATTON, Appellant. 30946.
• Court: Missouri Court of Appeals

Page 929

599 S.W.2d 929

STATE of Missouri, Respondent, v. Lee Roy PATTON, Appellant.

No. WD 30946.

Missouri Court of Appeals, Western District.

Dec. 31, 1979.

Motion for Rehearing and/or Transfer Denied April 7, 1980.

Application to Transfer Denied May 1, 1980.

Daniel L. Radke, Asst. Public Defender, Buchanan Co., St. Joseph, for appellant.

Thomas L. Crossett, Asst. Pros. Atty., Buchanan Co., St. Joseph, for respondent.

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from a conviction by a jury for assaulting a police officer, a misdemeanor under §§ 557.220 and 556.270, RSMo 1969. ¹ The jury affixed punishment of 30 days in the county jail. The judgment is affirmed.

Appellant challenges the sufficiency of the evidence to sustain his conviction, which necessitates a recitation of the facts of record. This is point four charged as error. The other three points alleged are (1) error by the trial court in sustaining state's objection to the questioning of a state's witness upon cross-examination, thus preventing appellant from challenging the credibility of the witness; (2) error by the trial court in permitting rebuttal witness to testify because there had not been a proper foundation laid for such testimony; and (3) error by the trial court in permitting the prosecutor to argue that appellant was not a believable person because such argument was not supported by evidence and was aimed at denigrating the character of appellant.

On the evening of March 15, 1978, at approximately 11:00 p. m., two St. Joseph, Missouri police officers, Officer Michael C. Shute and Officer Robert Finley, were dispatched to answer a disturbance at Homer's Tavern, which is located at Tenth and Mitchell Streets in St. Joseph, Missouri. The tavern is connected to Mary Ann's Restaurant.

The officers arrived and removed appellant's son, Aubrey Patton, from the bar. The officers testified that as they were placing Aubrey under arrest, another individual named Nason Goddard proceeded to step between Officer Finley and Aubrey. A struggle between Officer Shute and Aubrey Patton ensued. Officer Finley then proceeded to struggle with Nason Goddard.

The evidence reveals that at about this time, a third uniformed officer, Lawrence D. Jefferson, Jr., arrived on the scene. Officer Jefferson testified he observed the other two officers with Aubrey Patton and Nason Goddard. Officer Jefferson then testified he attempted to assist Officer Shute in subduing Aubrey Patton, but that he was directed by Officer Shute to assist Officer Finley in his efforts to subdue Nason Goddard. Officer Jefferson further testified that as he moved toward Goddard and Officer Finley, he observed an individual, who was shouting obscenities, standing in the doorway to Homer's Tavern. He testified the obscenities were directed toward the officers. Officer Jefferson testified that he directed this individual to go back inside or be placed under arrest for loud and obscene language. Officer Jefferson then advised this individual that he (the individual) was under arrest and directed him toward a car parked adjacent to the curb. Officer Jefferson testified that during the search of this individual, someone jumped on his back and struck him on the shoulders and head with his fist.

The testimony of the officers then established the parties involved in the disturbance were subdued and taken to the local police station.

In addition to the three police officers, who described the struggle and arrest, the state called two other witnesses. The first was LaVonna Burton, who testified she was in Mary Ann's Restaurant and could see the disturbance through the front window. The pertinent portion of her testimony confirmed the struggle between the officers and others and that one of the officers had a man on his back at one point in the struggle.

The final witness for the state's case in chief was Jerome Komer. This witness testified he was in Homer's Tavern and observed two police officers remove a patron from inside the premises. He then stated that appellant left the tavern, and he identified him as one of the persons later fighting with a police officer on the ground. He testified he observed the appellant on the officer's back.

The evidence for the defense consisted of appellant's own testimony, whereupon he denied ever having jumped on the back of a police officer. He testified he had been in the tavern playing pool. He had gone to the restroom and upon his return, someone advised him the police had his son outside. He testified he stepped outside the tavern door whereupon an officer immediately struck him with a flashlight.

Further defense evidence consisted of the testimony of Beverly Crist and Geraldine Ming. Beverly Crist testified she was in Mary Ann's Restaurant and through the window, observed two policemen enter the tavern. She further testified that a fight or struggle ensued between two police officers and two young men. It was this witness's automobile that Officer Jefferson referred to as the automobile at the curb. This witness testified that the officers kept hitting the young men. She testified that the older man (appellant) did not resist or fight with the officers, but rather, one of the officers hit the older man with a flashlight.

Witness Geraldine Ming testified she too was in Mary Ann's Restaurant and overheard the barmaid tell a couple of the patrons to quiet down or she (the barmaid) was going to call the police. Witness Ming observed two police officers arrive at the bar. She got up from her table and walked over to the window, where Beverly Crist was standing, watching the events take place outside. Witness Ming testified she saw Officer Shute and another man wrestling, and saw Officer Shute handcuff this individual. She next observed the appellant fall to the ground and a fight ensue, involving appellant and the officers. She testified she never observed the appellant strike any of the police officers.

It must be noted from the record that the view of those witnesses inside Mary Ann's Restaurant was partially obstructed because of the physical relationship between the tavern and the restaurant and the witnesses' relative point of observation.

The jury heard the evidence and rendered its verdict of guilty, assessing a sentence of 30 days in the county jail against appellant.

As to appellant's alleged error on the insufficiency of the evidence, appellant, in support of such contention, argues that the evidence is insufficient to show that he wilfully and knowingly struck Officer Jefferson, and at the time that he knew Officer Jefferson was a member of the St. Joseph, Missouri Police Department.

An attack upon the sufficiency of the evidence requires a review of the evidence most favorable to the state with all evidence tending to support the verdict to be considered as true. Contrary evidence is to be disregarded and every inference supporting the verdict is to be indulged, see State v. Lee, 556 S.W.2d 25 (Mo.banc 1977), vacated on other grounds, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1978) and Rule 27.20.

The record discloses the direct testimony of five witnesses (the three police officers and witnesses Burton and Komer, who observed appellant on the back of Officer Jefferson, fighting with Officer Jefferson).

While the evidence as to whether or not appellant jumped on the back of Officer Jefferson and fought with Officer Jefferson was for the trier of fact to determine, and that evidence was controverted, the responsibility of this court encompasses the determination of whether such evidence was sufficient to sustain the conviction. The record in this case reveals that this evidence was sufficient, and point four raised by appellant is ruled against him, see State v. Smith, 298 S.W.2d 354 (Mo.1957); State v. Solven, 371 S.W.2d 328 (Mo.banc 1963); State v. Roseman, 583 S.W.2d 232 (Mo.App.1979) and State v. Reeves, 559 S.W.2d 300 (Mo.App.1977).

Appellant contends error in the trial court's refusal to permit him to cross-examine Officer Jefferson and to attack the credibility of this witness for bias and prejudice. The pertinent testimony reads as follows:

"Q. Do you intend to work on the police force MR. CROSSETT: (Asst. Prosecuting Attorney) Your Honor, I object to that.

THE COURT: Sustained.

Q. Have you worked with these officers after March 15th?

MR. CROSSETT: Your Honor, I object to that as being irrelevant.

THE COURT: Objection sustained. It is irrelevant."

Appellant contends that the trial court's ruling prevented him from developing or showing bias and prejudice on the part of the witness. In addition to the above questions, this witness was asked a series of questions encompassing the questions of whether or not (1) he had discussed the instant case with his two fellow officers; (2) he had prepared a written statement regarding the instant case; (3) he had discussed the case with the prosecutor; (4) he had testified in municipal court; (5) he had overheard the testimony of his two fellow officers during the municipal court proceedings; (6) his employment with the St. Joseph Police Department had been continuous since the date of the offense for which appellant stands convicted; and (7) his employment involved working with his two fellow police officers prior to and since the date of the offense for which appellant stands convicted.

On further cross-examination, this officer was asked the particular questions referred to above and the ruling sustaining the objection was made by the court.

Appellant's contention on this point cannot stand as the record reflects appellant was not prevented from questioning this officer to establish bias and prejudice. On the issue of examination of witnesses, the trial court is invested with discretion as to the scope and extent of examination of witnesses. It is correct that the trial court cannot prevent cross-examination of a...