State v. Pettit

• Decision Date: 15 September 1998
• Docket Number: No. WD,WD
• Citation: 976 S.W.2d 585
• Parties: STATE of Missouri, Respondent, v. Henry PETTIT, Appellant. 54503.
• Court: Missouri Court of Appeals

Page 585

976 S.W.2d 585

STATE of Missouri, Respondent, v. Henry PETTIT, Appellant.

No. WD 54503.

Missouri Court of Appeals Western District.

Sept. 15, 1998.

Rosalynn Koch, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jill C. LaHue, Asst. Atty. Gen., Jefferson City, for respondent.

Before HOWARD, P.J., and BRECKENRIDGE and SPINDEN, JJ.

BRECKENRIDGE, Judge.

Henry Pettit appeals from his convictions for first degree assault under § 565.050, RSMo 1994, and armed criminal action under § 571.015, RSMo 1994. ¹ Mr. Pettit was sentenced to consecutive terms of ten years imprisonment for first degree assault and five years imprisonment for armed criminal action. Mr. Pettit raises four points on appeal, arguing that the trial court erred by: (1) admitting a physician's speculative testimony regarding one of the victim's increased risk of future medical problems due to a gunshot wound; (2) admitting evidence relating to Mr. Pettit's flight from the crime scene because the evidence constituted uncharged misconduct; (3) denying Mr. Pettit's motion for acquittal because the State did not prove that Mr. Pettit acted intentionally or knowingly or that the victims suffered serious physical injury; and by (4) overruling Mr. Pettit's objections to the State's closing argument because the remarks were intended to inflame and prejudice the jury.

The judgment of the trial court is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On appeal from a criminal conviction, this court reviews the facts in a light most favorable to the jury's verdict. State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995). On September 20, 1996, Lanair Perry and Benjamin Watson went to meet Mr. Watson's friend, Christine Johnson, at America's Pub, a bar in the Westport area of Kansas City, Missouri. Ten to twenty minutes after Mr. Perry and Mr. Watson arrived at the bar, Sheralee Hund engaged Mr. Perry in conversation. Mr. Pettit considered Ms. Hund to be his girlfriend, so he took offense to Mr. Perry speaking with Ms. Hund. Mr. Pettit approached Mr. Perry and told Mr. Perry "Don't even think about it." Mr. Perry told Mr. Pettit "to go f--- hisself." Mr. Pettit responded "I know a lot of people and you can get f----- up in here." Mr. Perry answered "I don't care who you know in here, get out of my face with that."

The two exchanged profanities until Mr. Pettit hit Mr. Perry in the face with his fist. Mr. Perry then grabbed Mr. Pettit and the two wrestled until Mr. Perry slammed Mr. Pettit to the ground and struck Mr. Pettit seven to ten times in the face before he was pulled away by an America's Pub bouncer. Mr. Pettit got up and moved to strike Mr. Perry while Mr. Perry was being restrained by the bouncer. Mr. Watson then struck Mr. Pettit in the face in response to his actions. Mr. Pettit was forcefully escorted out the back door and Mr. Perry and Mr. Watson were forcefully escorted out the side door. Upon being ejected, Mr. Pettit walked directly from behind the bar around to his vehicle in a parking lot. The parking lot was across the street from the establishment's side door. Mr. Pettit retrieved a loaded .380 semi-automatic pistol from his vehicle, tucked the pistol behind his back and began walking across the street to the side door, where Mr. Perry and Mr. Watson were standing and talking to Ms. Johnson.

Mr. Pettit walked to within eight feet of Mr. Perry and Mr. Watson, reached behind his back and drew his pistol. Mr. Perry and Mr. Watson saw Mr. Pettit with the gun and ran in the opposite direction. Mr. Pettit aimed at them and fired four shots as they ran down the street. Neither Mr. Perry nor Mr. Watson was hit by a bullet. However, Travis Gray and Brendan Cook, two Canadian businessmen who were waiting for friends to leave the bar, were each struck by an errant bullet. Mr. Gray was shot in the hip and Mr. Cook was wounded in the knee.

Mr. Pettit stopped firing at the pleading of Ms. Johnson, and ran back to the parking lot where his car was parked. Maranda Fedric was riding in a car going down the street when she heard gunfire and saw a man run across the parking lot to a car. Ms. Fedric's friend, who was driving Ms. Fedric's car, attempted to block the exit of the parking lot with their vehicle. Mr. Sanders, the director of Westport security, heard shots fired and saw Mr. Pettit running across the parking lot. Mr. Sanders gave chase until Mr. Pettit got into his vehicle and started to leave the lot. Mr. Sanders proceeded to block the parking lot's only exit and "drew [his] sidearm and held [his] sidearm and [his] badge like this and was ordering the suspect to stop, [He] heard the engine rev and the vehicle appeared to accelerate towards [him]." Mr. Sanders then "dove behind the parking booth and the vehicle exited." Ms. Fedric and her friend put their heads down to brace themselves for a collision when Mr. Pettit's car swerved around her vehicle onto the street. The two women then followed the car and got the license plate numbers, which were given to the police at the scene. Mr. Pettit was later apprehended at an area convenience store, with a semi-automatic pistol in his possession. Mr. Pettit was subsequently charged with first degree assault and armed criminal action.

At trial, Mr. Gray, Mr. Cook and Mr. Cook's treating physician, Dr. Devin Data, testified to the extent of the physical injury to Mr. Gray and Mr. Cook. Mr. Gray testified that he was shot in the hip and was taken to the hospital. Mr. Gray also testified that his treating physician determined it would do more harm than good to remove the bullet which was lodged in his pelvis. Mr. Gray said it was very painful to walk for approximately three weeks after the shooting. He limped very heavily when walking, and stayed off the injured leg as per doctor's orders. It was also painful for Mr. Grey to sit. He developed an infection two weeks after the shooting which required further medical treatment.

Mr. Cook was also wounded in the shooting. Mr. Cook testified that he was shot in the knee and was taken to the hospital. When questioned about the extent of his injuries, Mr. Cook testified that the bullet entered his knee joint and lodged in his femur; that the injury required surgery under general anesthesia to remove and repair bone and cartilage fragments, but the bullet was left in his leg. Mr. Cook was hospitalized for two days. He experienced continuous pain and could not walk unaided for approximately one month. Mr. Cook further testified that he still experienced intermittent soreness at the time of the trial.

In addition, Dr. Data testified concerning Mr. Cook's potential medical problems. The prosecutor asked Dr. Data what future problems Mr. Cook would be more likely to suffer due to the gunshot wound. Mr. Pettit objected that such testimony called for speculation. The trial court overruled Mr. Pettit's objection and Dr. Data responded "Right, it is speculation. There is no way for sure to say what kind of damage he is going to have." The prosecutor asked Dr. Data whether Mr. Cook was more likely to develop future medical problems due to the gunshot wound. The trial court overruled Mr. Pettit's objection and directed Dr. Data to answer, if he was able to do so without speculation and if there was a "reasonable medical certainty basis" for his answer. Dr. Data responded that Mr. Cook was at a heavily increased risk of developing future problems due to the gunshot wound.

The jury convicted Mr. Pettit of first degree assault and armed criminal action and recommended sentences of consecutive terms of ten years imprisonment and five years imprisonment, respectively. The trial court entered judgment against Mr. Pettit, imposing the recommended sentences. This timely appeal follows.

POINTS ON APPEAL

POINT ONE--DR. DATA'S TESTIMONY WAS ADMISSIBLE

In his first point on appeal, Mr. Pettit contends that the trial court erred by admitting Dr. Data's testimony regarding Mr. Cook's increased risk of future medical problems as a result of the gunshot wound. Mr. Pettit argues that Dr. Data's testimony was speculative because Dr. Data testified that it was uncertain whether Mr. Cook was going to develop future medical problems due to the gunshot wound.

The trial court has broad discretion in deciding whether to admit or exclude evidence. State v. Wahby, 775 S.W.2d 147, 153 (Mo. banc 1989). "Because expert testimony is always fraught with questions of relevancy and competency, the decision to admit expert conclusions is a matter of trial court discretion that will not be overturned on appeal absent an abuse of discretion." State v. Skillicorn, 944 S.W.2d 877, 891 (Mo. banc 1997) (quoting State v. Copeland, 928 S.W.2d 828, 837 (Mo. banc 1996)). The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances or unreasonable or arbitrary. State v. Jack, 813 S.W.2d 57, 60 (Mo.App.1991).

Under § 565.050, "[a] person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person." "Serious physical injury" is defined as "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body." Section 565.002. Mr. Pettit contends that the trial court erred by admitting Dr. Data's testimony regarding Mr. Cook's increased risk of future injury because the testimony was speculative and allowed the jury to find the presence of serious physical injury as to Mr. Cook. Without such a finding, Mr. Pettit argues that the jury would have convicted him of a lesser crime.

The portion of Dr. Data's testimony of which Mr. Pettit complains on appeal was based on established substantial facts and therefore, was properly admitted. The scope and magnitude of injury to Mr. Cook was at issue, therefore, specific questions regarding the...