State v. Peek, s. 57062

• Decision Date: 02 April 1991
• Docket Number: 58167,Nos. 57062,s. 57062
• Citation: 806 S.W.2d 504
• Parties: STATE of Missouri, Plaintiff/Respondent, v. James PEEK, Defendant/Appellant. James PEEK, Defendant/Appellant, v. STATE of Missouri, Plaintiff/Respondent.
• Court: Missouri Court of Appeals

Page 504

806 S.W.2d 504

STATE of Missouri, Plaintiff/Respondent, v. James PEEK, Defendant/Appellant.

James PEEK, Defendant/Appellant, v. STATE of Missouri, Plaintiff/Respondent.

Nos. 57062, 58167.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 2, 1991.

Linda Murphy, Clayton, Henry B. Robertson, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant appeals from his convictions of two counts of assault in the first degree, two counts of armed criminal action arising from the assaults, and one count of attempted forcible rape. He also appeals denial of his Rule 29.15 motion. Defendant was sentenced to twenty-five years imprisonment on each assault charge, to ten years imprisonment on each armed criminal action charge, and to five years imprisonment on the attempted rape charge. The sentences on the assault and armed criminal action charges were made concurrent and the sentence on the attempted rape charge was made consecutive.

The victims, Terry Upshaw and his girlfriend Karen Gatewood, were visiting with defendant in his residence. The state's evidence was that without warning or provocation defendant attacked Upshaw with a knife inflicting multiple serious stab wounds and then attacked Gatewood with a hammer rendering her unconscious. When she awoke defendant was on top of her and both were naked from the waist down.

Defendant testified that without provocation Upshaw attacked him when defendant told Upshaw and Gatewood to leave the premises and refused to drive them home. While defendant was fighting with Upshaw, Gatewood jumped on defendant's back on three occasions. On the first two defendant threw her off. On the third he struck her with a hammer which he had forcibly taken away from Upshaw during the fray. The trial court submitted a self-defense instruction as to the assault on Upshaw but refused such an instruction as to the assault on Gatewood.

Defendant first premises error on the trial court's action in sustaining challenges for cause by the state to two veniremen who initially indicated they would require more than the testimony of one witness in order to convict. Defendant contends that subsequent questioning rehabilitated the veniremen and that striking them for cause was the equivalent of giving the state two extra peremptory challenges. The issue is succinctly addressed in State v. Jones, 749 S.W.2d 356 (Mo. banc 1988) :

"It is appropriate to note at the outset the usual rule that error may not be predicated on the sustaining of a challenge for cause if a full panel of qualified jurors is tendered for peremptory challenge. Otherwise the trial judge would be placed in an impossible position, especially since our decisions encourage trial judges to excuse challenged jurors freely when arguable grounds are presented."

Defendant makes no contention that the venire panel tendered for peremptory challenge was other than a "full panel of qualified jurors." We find no error.

Defendant next premises error on the failure of the trial court to give a self-defense instruction as to the assault against Gatewood. If there is any substantial evidence putting self-defense in issue the court is required to instruct the jury on that defense. State v. Spencer, 725 S.W.2d 54 (Mo.App.1987) [2, 3]. Such evidence may come from defendant's testimony alone. State v. Nunes, 546 S.W.2d 759 (Mo.App.1977) . The evidence must be viewed in the light most favorable to the defendant. State v. Spencer, supra.

The state justifies the failure to give the instruction on the basis that Gatewood was much smaller than defendant and defendant had no knowledge she...