State v. Pinkus

• Decision Date: 29 March 1977
• Docket Number: No. 9972,9972
• Citation: 550 S.W.2d 829
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Chyral Lynn PINKUS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 829

550 S.W.2d 829

STATE of Missouri, Plaintiff-Respondent, v. Chyral Lynn PINKUS, Defendant-Appellant.

No. 9972.

Missouri Court of Appeals, Springfield District.

March 29, 1977.

Motion for Rehearing or Transfer Denied April 29, 1977.

Application to Transfer Denied June 14, 1977.

James W. Newberry, Springfield, for defendant-appellant.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before HOGAN, P. J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.

HOGAN, Presiding Judge.

About 9:00 p. m. on August 26, 1974, Emmanuel Ernest Spickard was discovered lying on a parking lot in the City of Springfield, Missouri. He had been fatally stabbed. By amended information filed December 9, 1974, defendant Chyral Lynn Pinkus was charged with homicide committed during the attempted perpetration of a robbery, an offense then denounced as first-degree murder by former § 559.010, RSMo 1969. ¹ Upon trial to a jury in the Circuit Court of Greene County, defendant was found guilty and her punishment was fixed at life imprisonment. She appeals.

Defendant, 24 years of age at trial time, lived at Billings, Missouri, with her three-year-old daughter and one Bob Harris, an unemployed bricklayer. During the evening of August 26, defendant, her daughter and Harris drove to a parking lot adjacent to the Battlefield Lanes, a bowling alley located in south Springfield. Defendant was armed with a Government Issue M-6 bayonet. The M-6 bayonet has a tapered knife blade 61/2 long, 7/8 wide at the base. It is milled from 3/16 steel. Defendant's evidence was that she carried this weapon, tucked in her boot, as a means of self-protection.

Two versions of the operative facts were given, one by Harris, testifying as an immunity witness, the other by the defendant. Harris testified that he and defendant were "just drivin' around", and about 9:00 p. m. they went to the Battlefield Lanes to see if Harris' ex-wife was still employed there. Harris was sitting on the right the "passenger seat" holding defendant's child, who was asleep. Harris testified, without objection, that defendant stopped her automobile, said "she was going to rip someone off" and got out of the car. Defendant then "just wandered off" on the parking lot; two or three minutes later, Harris saw the defendant "off to (his) left", fighting with Spickard. Harris saw Spickard "throw (defendant) on the ground by her hair", became angry, and got out of the car. Harris heard no outcry but was afraid Spickard "was going to hurt" the defendant. Spickard "swung at (Harris) and missed (him) and he swung at (him) again and hit (Harris) in the head and tore (Harris') shirt off . . . so (Harris) hit him." Spickard fell to the ground and Harris ran back to defendant's car. Harris did not intend to take Spickard's wallet, but the defendant told him to go back and get it, and he did so.

Harris further testified that he saw no knife while he was fighting with Spickard. After he and defendant left the parking lot, however, defendant complained that she had been injured, and "finally (defendant) told (Harris) she went up behind the man, stabbed him in the back." Defendant handed Harris the bayonet; Harris "dropped it on the floor." Later, at the defendant's house, defendant boasted that she had stabbed Spickard "for the hell of it", stating that "it was a good clean drive, (defendant) didn't hit any bones." Defendant further stated "she ran it all the way to the handle." Harris and defendant divided the contents of Spickard's wallet $41.00.

Defendant's account of the killing was that she had driven onto the Battlefield Lanes parking lot to determine what time it was because her clock was not working properly. Defendant left the automobile to relieve herself on the parking lot. Shortly after returning she saw a man coming in the general direction of her automobile; Harris asked her to get out to inquire what time it was. Defendant approached Spickard, Spickard asked defendant, "What do you want?", and defendant asked, "Do you have the time?" Spickard told defendant, "It's 9 o'clock." Spickard then turned and saw Harris sitting in the car a short distance away. Defendant's testimony was that Spickard thereupon asked defendant what she wanted, grabbed her by the hair and threw her to the ground. Defendant tried to arise twice, but each time Spickard "threw (defendant) down again by the hair." Spickard then pushed defendant to the pavement and fell on top of her; then, according to the defendant, Spickard began beating her head "sideways" across the asphalt. Defendant's bayonet fell out of her boot; she raised her right arm over Spickard's body and made "a downward stroke" with the bayonet. Spickard then arose, telling defendant if she did "that again" he would kill her. Harris then came to defendant's aid and struck Spickard. Harris then said, "Let's get the hell out of here." Defendant took the bayonet back to the car, and Harris threw it on the floorboard. Defendant denied that she had said she intended to "rip somebody off", and denied she had said she drove the bayonet "all the way in to the handle."

The State had evidence establishing the crime in retrospect, so to speak. An autopsy was performed on the victim's body on August 27. The autopsy surgeon testified that he found four external wounds, one at the outside of the left eye, one through the left ear lobe, one through the tragus of the left ear and another, similar wound inside the external ear. All four wounds were about 4/5 long; all penetrated to the bone. All were, in the surgeon's opinion, inflicted by a sharp knife of some sort. The victim also had a split upper right lip. There were scraping wounds on the right elbow and right ankle indicating a fall to the pavement. The autopsy also disclosed one transverse wound, 2 wide inflicted between the 6th and 7th ribs on the right side of the victim's back. Upon dissection, the wound was found to be five to six inches deep. Further dissection showed a laceration of the right lung at the junction of the upper and middle lobes, including a laceration of the right pulmonary artery. The right chest was full of partially liquid and partially clotted blood. The autopsy surgeon testified without objection that in his opinion the victim's back wound had been inflicted at a right angle; that the fatal instrument had been moved laterally in the victim's body, and that massive hemorrhage from the pulmonary artery was the cause of the victim's death. Further, this physician's opinion was that the type of wound he found would induce shock from blood loss within five minutes and would be fatal within 30 minutes. He further noted that the fatal instrument passed through no bone or cartilage.

From the testimony of the victim's personal physician, it was established that he was 81 years of age at the time of his death, that he was 5'63/4 tall and weighed about 140 pounds. Both physicians indicated the victim appeared to be in good health, considering his advanced age. Other facts will be noted, as material, in the course of this opinion.

Defendant's counsel on appeal has meticulously briefed and argued 13 assignments of error. Some of the contentions made are extremely strained and tenuous, for example, defendant's argument that venireman Richard D. Marlin should not have been stricken for cause. The record indicates, in point of fact, that venireman Marlin approached the bench following voir dire examination and indicated that because of previous drug abuse he had difficulty concentrating, had "visions", and in general "felt sorry for people" because he "had a pretty rough life, too." The court, as indicated, excused Marlin for cause. Manifestly, defendant had no right to be tried by an incompetent juror, and the point is patently without merit. A good many other allegations of error of the same order of merit are advanced, obviously because counsel recognizes that defendant's appeal to this court is her appeal of right. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). We commend counsel for his thoroughgoing discharge of his duty to present and argue every point which can be presented without compromising professional standards, see State v. Gates, 466 S.W.2d 681, 683 (Mo.1971); State v. Barnes, 517 S.W.2d 155, 167-170 (Mo.App.1974), but it does not follow that we must recite and discuss each point advanced. The record has been three times read and twice abstracted in this court, the defendant's claims of error have been fairly presented, and we confine our discussion to those arguments which merit serious consideration.

The first of these is defendant's argument that the trial court erred in admitting the bayonet, the victim's wallet, several items of clothing and two briefcases in evidence, because these items were seized pursuant to an unlawful search. The defendant admittedly consented to the search in writing, and the only issue here is whether her consent was voluntarily given or was the product of coercion. Defendant argues that her consent was not voluntary because 1) at least one officer's weapon was exposed to view; 2) she was told that if she did not consent to the search, a search warrant would be obtained; 3) at least nine officers were present when she was taken in custody and the search was conducted, and 4) a so-called "confrontation" took place at defendant's mother's home.

The trial court held an extensive hearing on the defendant's motion to suppress. Contrary to the assumption made by both parties, no ruling was ever made on the motion, and when the demonstrative evidence now complained of was offered, trial counsel contended himself with remarking that he had no objection beyond those which he had already advanced. We doubt the point is preserved for review, see State v. Young, 534 S.W.2d 585, 588 (Mo.App.1976); State v. Ealey, 519 S.W.2d 314, 320 (Mo.App.1975), but because def...