State v. Reyes

• Court: Missouri Court of Appeals
• Writing for the Court: NUGENT; Somerville; GAITAN; MANFORD; MANFORD
• Citation: State v. Reyes, 740 S.W.2d 257 (Mo. App. 1987)
• Decision Date: 22 September 1987
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Robert REYES, Appellant. 38593.

Page 257

740 S.W.2d 257

STATE of Missouri, Respondent, v. Robert REYES, Appellant.

No. WD 38593.

Missouri Court of Appeals Western District.

Sept. 22, 1987.

Rehearing Overruled and Transfer to Supreme Court Denied

Oct. 27, 1987.

Application to Transfer Denied Dec. 15, 1987.

Robert Beaird, Kansas City, for appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and MANFORD and NUGENT, JJ.

NUGENT, Judge.

Defendant Robert Reyes appeals his conviction by a jury of second degree murder for the shooting of David Wayne Carlson, claiming that the trial court erred in allowing into evidence a hunting knife that had no connection to the defendant or to the alleged crime. Finding that point dispositive of this appeal, we reverse the conviction and remand for a new trial.

At about two o'clock on the morning of January 26, 1986, David Wayne Carlson was killed by a single blast from a shotgun then in the hands of defendant Reyes, who was seated in the back seat of a car beside which Carlson was standing. The state charged both John Lockheart, the driver of the car, and defendant Reyes with Carlson's murder.

To prove the first degree murder charge filed against defendant Reyes, the prosecutor relied primarily upon the testimony of Liana Carlson, the deceased's widow, and Detective Rebecca Rishel, who had investigated the shooting.

Detective Rishel testified that the morning after the shooting defendant Reyes gave her a full written statement of the event. The statement was admitted into evidence and may be summarized as follows:

During the evening of January 25, John Lockheart drove defendant and Billy Lichner to the Birmingham area in Clay County to do some target shooting. After that they went to a 7-Eleven to get something to drink. There they met Carlson ¹ and his four companions. Defendant Reyes did not know the members of that group, but John Lockheart did, and he stopped at their car and talked to them. When Lockheart returned to his own car, Carlson came over and said that he was going to kick him in the face. Carlson then challenged Lockheart and his companions to a fight at San Rafael Park. Lockheart agreed to go but then drove around for a few minutes trying to decide whether he should. He told defendant Reyes that Carlson had accused him of "snitching" to the police about Carlson's having stolen some typewriters. He decided to go to the park to tell Carlson that he did not "snitch."

At the park, defendant's statement went on to say, Carlson would not listen to Lockheart's denials and insisted that he get out of his car and fight or leave. Carlson said that if he did not get Lockheart then, he would "just get him later." He kept reaching into Lockheart's car window "smacking" him in the face with his open palm calling him and his companions names. Carlson took off his shirt and offered to fight them all. Then he said, "Well I see your buddy in the back seat has got a gun," adding that defendant did not have the guts to pull the trigger. At that time defendant's gun was in the back window of the car and Lockheart's shotgun was upright in the front seat.

Carlson then appeared to reach over and punch John in the head through the window. Lockheart reached to get his shotgun, and defendant cocked his gun hoping to scare Carlson off. Instead, Carlson leaned the upper portion of his body into the car and grabbed the barrel of both shotguns and appeared to try to jerk them out of the car. While he was doing so, defendant's gun went off. Defendant thought that the shot had missed Carlson because he did not say anything; instead he bent over and ran to his car. At that time John Lockheart drove out of the park and took defendant home.

Defendant Reyes said in his statement that after the target shooting he thought that his gun was unloaded. He had his finger on the trigger, and, when Carlson pulled the gun away, it pulled his finger against the trigger causing the gun to go off. He did not intentionally fire it.

On the way home, defendant checked the gun again because he could not believe that it had been loaded. When he did, the spent shell fell out. Lockheart checked the outside of the car and found a few drops of blood, but defendant thought that at most he had nicked Carlson. He did not believe that anyone who had been shot with a shotgun could just walk away.

A couple of hours after the shooting Detective Rishel took Liana Carlson's signed statement. She was one of the nine persons present and was standing ten feet away when the shot was fired. Ms. Rishel testified that Liana told her that John Lockheart had pointed a shotgun out the car window and that, as he did, Carlson "grabbed the gun and there was a shot."

Detective Rishel also took a number of other statements from witnesses. All of the witnesses that she and other detectives interviewed said that Carlson had grabbed the shotgun before it fired.

At trial, Liana Carlson testified that after work she, her husband, and their friends, Jeff Harris, Matt and Calista, drove in the Carlson's car to the 7-Eleven store where they saw John Lockheart and his companions. She heard no argument there, but Carlson and Lockheart, who had been friends for two years, talked and at Carlson's suggestion agreed to go to the park. Carlson's party went ahead, and when Lockheart drove in and parked about ten feet away, Carlson approached his car and began talking. All she could hear was Carlson telling Lockheart that "if he didn't want to fight to just leave." Liana testified that she guessed Lockheart was "spouting off" about having a gun because Carlson asked him if that was the only way he knew how to fight, to which Lockheart retorted, "No, that's the only way I know how to win." At that Carlson got mad and took off his shirt, but Lockheart pulled his car forward and Liana heard a shotgun cock. Carlson and Lockheart continued to argue, Carlson telling Lockheart that if he did not "want to fight just to leave." Lockheart again moved his car forward and stopped, at which Carlson "got really mad" and reached in and slapped Lockheart on the shoulder with the palm of his hand.

At that time a gun barrel came four to six inches out of the window at an angle from the back seat. As it did, Carlson turned to his left and the gun went off when he was less than one foot away. He then staggered to the other side of his car and fell. Liana testified that she did not see her husband grab the gun nor did she see him reach into the back seat to grab the gun or grab it outside the window.

On cross-examination, Liana Carlson admitted that her signed statement given to Detective Rishel said, "John grabbed a shotgun and pointed the barrel of the gun out the car window on the drivers side. And as he did David [Carlson] grabbed the gun and there was a shot." She testified, however, that she did not remember anything she said in that statement. She conceded that her signed statement did not say that the shotgun pointed out of the back seat at an angle, but said that Lockheart grabbed the shotgun and that he was in the front seat. She also conceded that her signed statement said nothing about Carlson's slapping John Lockheart. She admitted that in neither her signed statement given that night nor in her answer to Detective Rishel's inquiry the next morning had she told the police about Matt and Calista being at the park. Finally, Liana admitted that her testimony that John Lockheart had said that using a shotgun was "the only way I know how to win" did not appear in her earlier statement.

The prosecutor did not call Matt, Calista or Jeff Harris, the Carlsons' companions at San Rafael Park. The only other prosecution witnesses whose testimony has significance on this appeal were officer Wayne Owens and the medical examiner, Dr. Paul C. Vescovo, Jr.

Responding to a police broadcast, a Claycomo police officer stopped Lockheart alone in his car shortly before three o'clock, within an hour of the shooting. Later, police crime scene investigator Wayne Owens inspected Lockheart's car and found a hunting knife protruding from underneath the front seat. He took pictures of the car's interior, including two photographs showing the knife as he found it. Over defendant's objection, the court admitted the knife, the officer's testimony about it and the photographs, which were then passed to the jury. The state argued that evidence of the knife went to the question of intent, showing that Lockheart and his friends went to the park "heavily armed." The court overruled the objection. In his opening statement the prosecutor had referred to the knife, and later in his summation he reminded the jury that Lockheart's group, knowing that "there was gonna be a fight," went to the park "loaded for bear" with two shotguns and a knife. During the trial, the prosecutor also referred to the knife in cross-examining defense witnesses, apparently trying, without success, to get them to say that on the way to the park Lockheart had stopped at his house to get the knife.

Carlson died at the scene from blood loss resulting from the gunshot wound. According to the Clay County medical examiner, Dr. Paul Vescovo, Jr., the gunshot entered Carlson's body from the back of his right arm, then travelled through his armpit, angling slightly (five to ten degrees) forward into the chest cavity.

The defense witnesses gave the following accounts of what happened at San Rafael Park. Lockheart's front seat passenger, sixteen-year-old Billy Lichner, testified that Carlson was acting crazy, as though intoxicated. He began to punch the car door, so Lockheart put the car in gear and started rolling. Carlson reached in, grabbed the steering wheel and punched Lockheart in the face. Threatening to kill the car's occupants with the guns, Carlson grabbed the barrel of Lockheart's shotgun with his right hand. A struggle for the shotgun ensued, first...