State v. Singh

Decision Date02 August 1979
Docket NumberNo. 10788,10788
Citation586 S.W.2d 410
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Michael Herbert SINGH, Defendant-Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Scott B. Tinsley, Springfield, for defendant-appellant.

MAUS, Judge.

The defendant was charged with the second degree murder of his wife Mary Ann Singh. After a four-day trial the jury returned a verdict of manslaughter, fixing his punishment at ten years' imprisonment. Defendant's motions for a new trial were overruled and he was sentenced accordingly. On appeal by his court-appointed attorney defendant asserts six points of error and by his pro se brief one additional point.

The decedent was first married at an early age and by this marriage had a son and a daughter. This marriage ended in divorce and was followed by a brief second marriage and several live-in male companions.

The defendant, 33 at the time of trial, was born in Trinidad, West Indies. He was of East Indian extraction. He had roughly the equivalent of a junior college education. In his native land he taught school. In 1970 he went to New York and for a time worked as a warehouseman. He then served in the army for three years and four months. After a brief period, he re-enlisted, but after one month went A.W.O.L. He came to Springfield. In the summer of 1976 he met the decedent and moved in with her and her two children. August 8 they were married. August 14 he was apprehended for being A.W.O.L. After being in custody a short period of time he was discharged and returned to the decedent's home.

That is when the marital difficulties began. Defendant ascribed these difficulties to financial problems and decedent's alleged sexual proclivities. They resulted in numerous, vociferous quarrels during which the decedent cursed and made derogatory remarks toward the defendant. She would hit and kick and throw things at the defendant. He said he usually tried to restrain her but admitted hitting her on occasions, the number of which he could not remember. In this connection decedent was five feet eight inches in height and weighed approximately 140 pounds. The defendant was five feet seven inches in height and weighed approximately 140 pounds. He had been an airborne ranger and received instructions in hand-to-hand combat.

September 15 the defendant left the state to see about collecting some money due him. After being unsuccessful and hitchhiking back he arrived at the decedent's home at about 5:00 a. m. on September 23. An altercation developed which led to the death of his wife.

The defendant's version was that when he told the decedent he couldn't stay unless she changed, she became violent and he tried to restrain her. She went to a closet and got a small .22 caliber revolver which he immediately took from her. He put the gun and a bag of bullets from the closet in his coat pocket. At this point he heard the daughter coming downstairs; the decedent backed away and said "don't kill me". She then told him she had filed for divorce (she had consulted an attorney) and that she had had an abortion (records indicated she had done so two days prior). At his reply, "God have mercy on your soul" she flared up, threatened him and started searching around the kitchen. She then went to the back porch and picked up a stick of wood. He followed. She rushed at him and tried to hit him. A struggle ensued moving off the porch to the yard. She taunted him about the abortion and his race. She succeeded in hitting him twice. She still had the stick when they reached a place by the side of the house.

Defendant then says decedent kept the struggle going and "then she pushed her hand in my pocket;" he thought she was going for the gun so he put his hand in the pocket;

"(t)hen she grabbed ahold I can't remember, let's see can I think for a minute? Her hand was holding I couldn't tell whether it was in the pocket or outside the pocket, but her hand was on the gun, she was trying to push her hand inside the pocket, that's right, and both of her hands were in there and she was trying to get it away and trying to strike me with this thing there and she hit me real hard and this really, you know, with all the pain and suffering and then hitch- hiking (sic) and tiredness, sleepless, and all these things, it really shook me up, and in the struggle and everything the gun did go off."

He did not know the number of times the gun fired. Decedent was lying on the ground and the daughter was standing there. He did not know the decedent was shot and wondered why she was lying there. His throat burned and he went into the house, got a drink of water, got the keys and left in decedent's car.

The state presented the daughter whose testimony is summarized. She was awakened by the quarrel. She went downstairs and her mother was trying to hit the defendant who was holding her. Her mother said "(p)lease don't kill me" and Michael said "shut up". She first said she saw the gun in defendant's hand inside the house, but later said it was outside. She and her mother went out the back door and got to the corner of the house when she "looked over and he already had shot her, and I looked over and she was lying down." She first stated the decedent tried to hit the defendant with a stick of wood that night, but later said it was before that night.

Police officers arrived at approximately 5:45 a. m. The decedent was removed to the hospital where she died. A thorough search of the area was made and no stick of wood was found, although there were sticks of wood stacked on the back porch. The decedent had four gunshot wounds: one to the left temple; one to the right cheek; one to the back approximately thirty centimeters below her shoulder joint and one to the left forearm approximately 17 centimeters above the wrist. There were powder burns around the wounds to the cheek and wrist. An autopsy was performed. The pathologist described the trajectory of the bullets that made the wounds.

In the pathologist's opinion the trajectory of the bullet that entered the back was consistent with someone being hit while falling down and of the bullet that entered the chin was consistent with the person being on the ground or the gun pointed up. The gun that made the powder burns was fired within two to three feet of the body. The immediate cause of death was the bullet that entered the back.

A forensic chemist testified the stains on the right pocket of the coat defendant was wearing were caused by the firing of a gun, probably twice, inside of the pocket. The defendant didn't know if the gun was poked through the pocket and fired.

The defendant was arrested driving near Houston, Missouri. At the time of his arrest he told the officer he was the man they wanted; he was driving his girl friend's car; and that he had no weapon. The .22 revolver that fired the fatal shots was found in a plastic bag, with some ammunition, under the car seat on the driver's side. Defendant had reloaded it with four shells because he was sleeping in the woods and it was very bushy and there "could have been snakes or anything".

The defendant denied bringing the gun from Colorado. He said somewhat cryptically "that's only the second time I used that pistol." He denied telling the decedent's aunt it was his gun. The aunt had testified he so stated and, without objection, that the decedent was scared to death of guns and wouldn't have one in the house. In rebuttal, for the purpose of showing decedent's state of mind, a neighbor testified that on Monday before she was killed on Thursday the decedent said she was afraid of defendant, she was afraid of guns and would not have any in the house, and she had heard the defendant had a gun.

The defendant first asserts the trial court erred in determining the daughter was a competent witness. She was approximately five years nine and one-half months of age at the time of the occurrence and approximately six years and eight months of age at the time of trial. By statute, § 491.060 RSMo, V.A.M.S., a child under 10 years is by a rebuttable presumption incompetent. The burden was upon the state to establish her competency. Hildreth v. Key, 341 S.W.2d 601 (Mo.App.1960).

There is no fixed age at which a child may be a competent witness. Competency is to be measured by the standard hereafter set forth under the singular facts and circumstances of each case. State v. Watson, 536 S.W.2d 59 (Mo.App.1976). Children of an age comparable to that of the daughter have been determined to be competent in a variety of situations. 1

The competency of a child offered as a witness is to be determined by the court. The established procedure is for this determination to be made upon a voir dire examination held outside the presence of the jury. J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975). 2 Such was done in this case.

It is in connection with the voir dire examination the defendant in his pro se brief asserts that the trial court erred by conducting "extensive cross-examination" of the daughter aiding in establishing her competency. We do not agree. It is fundamental that a trial court must maintain complete fairness and impartiality. This does not mean, however, the trial judge was cast into "the position of the umpire of a game, whose duty it was to interfere only so far as needed to decide whether the rules of the game had been violated." III Wigmore, Evidence, § 784, p. 188 (Chadbourn rev. 1970). "One of the well-recognized powers of the judicial function is the right and duty of the trial judge to propound additional questions to witnesses in order to develop the truth more fully and to clarify the testimony given." State v. Grant, 394 S.W.2d 285, 287 (Mo.1965). 3

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