State v. Roller

• Decision Date: 22 September 2000
• Citation: 31 S.W.3d 152
• Parties: (Mo.App. S.D. 2000) State of Missouri, Respondent, v. David T. Roller, Appellant. 23340 0
• Court: Missouri Court of Appeals

31 S.W.3d 152 (Mo.App. S.D. 2000)

State of Missouri, Respondent, v. David T. Roller, Appellant.

23340

Missouri Court of Appeals Southern District

09/22/2000

Appeal From: Circuit Court of Greene County, Hon. Don E. Burrell

Counsel for Appellant: Nancy A. McKerrow

Counsel for Respondent: John M. Morris

Opinion Summary: None

Barney, C.J., and Prewitt, J., concur.

John C. Crow, Judge

A jury found Appellant guilty of murder in the second degree, section 565.021,¹ and armed criminal action, section 571.015. The jury assessed punishment at twenty-five years' imprisonment for each crime. The trial court entered judgment per the verdicts, running the sentences consecutively.

Appellant brings this appeal from that judgment. He maintains the trial court erred in (1) ordering voir dire by the State to proceed in his absence, and (2) receiving in evidence six weapons that were "unrelated to the murder" for which he was tried.

Because Appellant does not claim the evidence was insufficient to support the verdicts, this opinion sets forth only the evidence germane to Appellant's claims of error.

On February 22, 1998, Appellant was residing with Catherine Stolp ("Victim") and her daughter, Julie, a high school senior.

Julie arrived home around 10:00 p.m. that date. Her nineteen-year-old sister, Jody, a college student who resided "on campus," and Jody's boyfriend, Tyler Thompson, were there. So was Appellant. Julie testified: "[A]s I went inside Jody . . . told me that mom was gone and that [Appellant] had told mom that if she left never to come back, because they were in an argument about Tyler and Jody being there at the house."

Julie entered her bedroom and went to bed.

Jody, Tyler and Appellant left the residence around 10:30 in Tyler's car.

Julie was awakened several hours later. She recalled: "Mom . . . came home and she was just hysterical, wanting to know where [Appellant] was . . . my bedroom door was shut and she came in and threw it open and just like, `Well, where's he at?' And I went like, `I don't know.'"

After that exchange, Julie tried to go back to sleep.

Sometime later, Jody, Tyler and Appellant returned to the residence. Jody estimated it was around 3:30 a.m.

Appellant, alone, entered the residence. Jody and Tyler departed.

Julie heard Appellant and Victim arguing. Julie recounted, "[T]hey were just both yelling back and forth." During the argument, Julie heard a gunshot. She then heard Appellant say, "How's that for scaring you." She heard no voices thereafter. A minute or two passed. Then, Julie heard another gunshot.

She arose, left her bedroom, and "peeked around the corner" to see "what was going on." She saw Appellant "on the phone to 911." Asked what she heard Appellant say, Julie responded, "They needed an ambulance over there." Julie also heard Appellant say "[h]is girlfriend or wife or somebody had been shot."

A "911 call taker" received Appellant's call at 3:50 or 3:51 a.m. In the call -- recorded on tape -- Appellant said, "I was trying to scare my wife by shooting over her head and I think I just pulled down a little bit low."

Appellant hung up while the "call taker" was contacting the fire department and police department. However, he called back. This time, he said, "She grabbed the gun and it just sort of went off, I was just threatening her."

Meanwhile, Julie had retreated to her bedroom and telephoned her pastor's wife. Julie explained, "I really didn't know what had happened and I was hysterical and needed to calm down." Julie feared Victim had been shot.

After talking briefly with the pastor's wife, Julie exited her bedroom because she "wanted to see mom."

Julie saw Appellant standing by the kitchen table. She asked him where Victim was. He gave her a "blank stare."

Julie entered the living room and saw Victim in a chair, "leaning back with her eyes shut, with a bullet [hole] in her neck." Julie "saw the blood."

Julie never saw Appellant try to help Victim.

Officer Bridgeforth was dispatched to Appellant's residence about 3:53 a.m. and arrived "within a minute or shortly after that." Officer King arrived simultaneously with Bridgeforth. They saw no sign of forced entry.

Julie met the officers at the door. They entered and found Victim in a chair. Bridgeforth saw blood "oozing out of" Victim's neck wound.

Appellant was seated in a chair, smoking a cigarette, six to eight feet from Victim.

Bridgeforth checked Victim's pulse and "found a very weak, slow pulse."

Bridgeforth handcuffed Appellant and "handed him off to another officer who had come in."

About that time, paramedics arrived and took Victim to a hospital.

Bridgeforth found a Lorcin .380 caliber semi-automatic pistol on the floor by the chair where Appellant had been seated. There were bullets in the magazine and one in the firing chamber.

Officer Novakovich escorted Appellant from the residence to Novakovich's patrol car. As Novakovich opened the door, Appellant said, "It was no excuse, she scratched my forehead." En route to jail, Appellant told Novakovich he had "shot three times, the first two didn't hit her, and it was an accident."

The gunshot injured Victim's spinal cord, rendering her a quadriplegic. She also sustained brain damage "from not getting oxygen to her brain." She never regained sufficient consciousness to communicate, and died in the hospital March 13, 1998. Death resulted from pneumonia, "a normal complication and result of the gunshot wound."

Tyler Thompson talked to Appellant while Appellant was in jail.² Asked at trial whether Appellant said anything about the shooting, Tyler responded: "I never got a straight answer . . . he really did not confide in me. . . . [H]e didn't know, he was asleep in his chair."

Jody talked to Appellant sometime after the shooting; the date and place of the conversation are unrevealed by the record. Jody's testimony:

"Q. Did you ask him what had happened the night of the shooting?

A. Yes.

Q. And what explanation did he give you?

A. He said that when he got home my mom was going to shoot herself, and that he convinced her to lay the gun on the coffee table between their two chairs, and the gun just went off."

Julie testified without objection that Appellant owned guns. She added, "I was told that at the house they found seven." Julie was aware Appellant kept a "real small gun" in a black bag that he carried with him. She recalled hearing him firing guns in "the basement of the house."

Jody testified without objection that Appellant had "a lot" of guns in the house. She, like Julie, recalled he carried one in a black bag. Jody confirmed Julie's testimony that Appellant practiced shooting "in the basement." A wall there had "a bunch of holes in it."

Officer Rader searched the residence of Appellant and Victim on the afternoon of February 23, 1998, pursuant to a search warrant. Rader testified without objection that in addition to the Lorcin .380 caliber pistol (found by Bridgeforth on the floor by the chair where Appellant was seated), he -- Rader -- found four to five other guns. Some were "underneath the bed in the bedroom in the lower part of the house," and some were on shelves along the bedroom wall.

The transcript shows that prior to voir dire, the trial court heard argument on "some defense motions in limine."³ The remarks of Appellant's lawyer ("Defense Counsel")⁴ included this:

"Number five, there were a lot of guns, pistols and rifles in the basement. We don't see how this is relevant, particularly in view of the fact that a lot of their testimony is going to be that these were owned by the deceased. But I think the inference will be that these guns or pistols were owned or possessed by the defendant. We believe that that's irrelevant and immaterial."

The prosecutor responded:

"This element goes to the question of knowing, which is one of the elements that we have to prove. Mr. Roller has indicated on the 911 tape that it was an accident. He mentions fired over her head and the gun kind of rolled down and he shot her inadvertently. And we want to show the jury that this is a man who doesn't just collect guns, this is a man who carries them with him, who fires them in the house. He has his only [sic⁵] little tiny practice area down in the basement where he's trying to line up his shots. This is a knowing act. And his knowledge of weapons and how to use weapons and the fact that he carries these weapons is very relevant to that."

The trial court ruled:

" . . . if we're going to have an issue as to whether or not this was an accidental shot or not, or whether his aim was bad, I'm going to allow the testimony that he's got a range that he's been practicing on, at least at some point. So that'll be denied."

Appellant's second point relied on reads:

"The trial court erred and abused its discretion in overruling Appellant's Motion in Limine and in permitting the State to introduce during trial, State's Exhibits 43, 44, 45, 46, 47, and 48, six weapons which were unrelated to the murder for which Appellant was being tried because those rulings denied Appellant his right to due process and to a fair trial by a fair and impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and by Article I, sections 10 and 18(a) of the Missouri Constitution as well as Missouri case law in that the admission of those unconnected weapons was inherently prejudicial since they had no probative value and could not assist the jury in deciding any of the issues presented in the case."

The exhibits listed in the above point were offered by the State during the testimony of Officer Rader. The first one about which he testified was Exhibit 44. He identified it as a "Beretta, Model 21." It was "one of the [guns] under the bed."

At that point in the trial, Julie and Jody had already testified, and Rader had already testified about finding guns in the residence. Defense Counsel had registered no...