State v. Smith, 43130
| Decision Date | 28 September 1982 |
| Docket Number | No. 43130,43130 |
| Citation | 641 S.W.2d 463 |
| Parties | STATE of Missouri, Respondent, v. Jessie SMITH, Appellant. |
| Court | Missouri Court of Appeals |
Bruntrager & Bruntrager, P.C., Raymond A. Bruntrager, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, John M. Morris, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
This is an appeal from a second degree murder conviction. Defendant, Jessie Smith, was the boyfriend of Sharon Walker, the girl he was convicted of murdering. Having been found guilty by a jury, defendant was sentenced in accordance with the verdict to a period of twenty-five years. We affirm.
Sharon Walker lived with her three children, her sister, Darlene Walker, and Darlene's four children in an upstairs apartment located in the City of St. Louis.
On the evening before the murder, Jessie Smith came to Sharon's apartment about 7:30 P.M. Before Jessie arrived, Sharon had taken drugs referred to as "T's and Blues" and consumed a half pint of liquor. Sharon and Jessie then went to a tavern, while Darlene remained at home. At approximately 11:30 Sharon returned home alone; she was crying and complaining that Jessie had beaten her and stolen her purse. Her face was swollen, bruised and scratched.
In response to Sharon's story and appearance, Darlene started walking toward the tavern where Sharon and Jessie had been earlier in the evening. Before Darlene arrived at the tavern, she met Jessie, who was in the process of taking a rifle from the trunk of his car and placing it in the front seat. Jessie told Darlene that he and Sharon had fought, but said he was getting his gun out in order to kill two men, whom he claimed had taken Sharon's purse.
Darlene returned to her apartment, where she saw Jessie Smith sitting outside in his car with her own boyfriend, Maurice Torrance. Sharon Walker, who had left the apartment again sometime after Darlene, then arrived. All four people then went into the apartment together.
Early in the morning Sharon left the apartment and went to a hamburger shop. Two men accompanied her home and waited for her outside while honking the automobile horn. After Sharon went back into the apartment, she and Jessie played around in a friendly manner. This play was described by Darlene as "tussling."
Meanwhile, the two men who took her home were still outside honking their auto horn. Jessie then told the men to go home because Sharon was not coming back. Darlene also told the men to leave. Sharon retired to her bed, as did Jessie. Sharon told him that she did not want him to spend the night, and an argument ensued in which Sharon threw some keys at Jessie. The keys struck Jessie and cut his head. Jessie then left the apartment.
Less than five minutes later, Jessie returned and knocked on the door. Darlene asked him whether or not he had a gun, and Jessie replied that he did not. Darlene then opened the door. Jessie, however, had a rifle in his hands, and went straight to Sharon's bedroom. Jessie then fired a shot at the wall over the bed where Sharon was lying. Sharon grabbed a steak knife, which she kept near her, and ran into her sister's bedroom. Sharon did not attempt to attack Jessie with the knife. When Jessie entered the room to which Sharon had fled, he called out saying, "I'll kill you, bitch." Jessie then fired a shot at Sharon. Sharon cried out, "Go on and kill me since you started it." Jessie fired another shot and fled. Sharon died of a single bullet wound to the brain.
During this episode Darlene Walker, Maurice Torrance and Larry Walker, Sharon's son, were all present. Larry was six and a half years old at the time of the shooting.
Jessie was taken into custody the morning of the murder and gave a statement denying that he killed Sharon. Jessie claimed that Sharon had fought with him and struck him with the barrel of a gun. According to Jessie, he then left the apartment. Furthermore, he said Sharon was unharmed when he left.
Defendant alleges that the trial court erred by allowing Sharon Walker's son, Larry, to testify. Larry, who was seven at the time of the trial, testified that he saw defendant Jessie Smith shoot his mother. On cross-examination, he said that he had told a police officer shortly after the murder that he had only heard shots. He also said that he had talked with his Aunt Darlene about the crime. Larry, however, maintained that he had actually seen the shooting, despite the challenge of defense counsel to the contrary.
The proper standard of review is whether or not the trial court abused its discretion in determining the competency of the child to testify. It is the judge's duty, by making appropriate inquiries, to determine whether or not an infant is competent. The decision of the judge is not open to review unless there is a clear abuse of judicial discretion. State v. Parton, 487 S.W.2d 523, 526 (Mo.1972).
Missouri has adopted a four element test to determine whether or not an infant is competent to testify. It must be shown that the child has: (1) present understanding of or an intelligence to understand on instruction, an obligation to speak the truth, (2) mental capacity at the time of the occurrence in question to observe and to register such occurrence, (3) memory sufficient to retain an independent recollection of the observations made, and (4) capacity truly to translate into words the memory of such observation. State v. Robertson, 480 S.W.2d 845, 846-847 (Mo.1972); State v. Parton, supra, 525. Larry Walker met this four element test adopted by the Missouri Supreme Court. First, Larry displayed an understanding of and an obligation to speak the truth. Larry's testimony clearly establishes the necessary understanding.
"Q. Larry, I am going to ask you if you know the difference between telling the truth and telling a lie. Okay, if I ask you, if I were to ask you, Larry, to tell me what happened and to tell me exactly the way it happened, would you be telling me the truth or a lie?
A. The truth.
* * *
* * *
Q. If I ask you to tell me what happened, and you make up something, are you telling me the truth or a lie?
A. A lie."
This testimony indicates that Larry knew truth from falsehood.
There is no obligation for a child to know the meaning of an oath as long as he understands the difference between truth and falsity. From the questions and answers set out above, the trial court could, and effectively did, find that the child knew he should tell the truth. State v. Young, 477 S.W.2d 114, 116 (Mo.1972); State v. Patterson, 569 S.W.2d 266, 269-270 (Mo.App.1978); State v. Williams, 545 S.W.2d 680, 681 (Mo.App.1976). Thus, Larry need not have understood the definition of an oath in order to understand the truth and testify to it.
Larry also met the other three elements of the test in that he exhibited a clear ability to observe, remember and relate the events of the crime. He knew the location of his apartment and was able to describe it. In addition, he was able to remember details of the crime, including all the persons present at the time it was committed. Furthermore, we note that Larry witnessed the murder of his mother by a man flourishing a rifle in close proximity to her and exchanging angry words with her. "Such an occurrence is likely to make a strong impact upon a child's mind and is likely to create a more lasting memory than the recollection of time, place and names." State v. Ball, 529 S.W.2d 901, 905 (Mo.App.1975); State v. Singh, 586 S.W.2d 410, 416 (Mo.App.1979). Although Larry had little appreciation for the passage of time, he is not required to show an ability to measure time or display a recollection of any particular length of time. The law does not adopt such a rigid, inflexible test, but rather only requires that the trial judge determine that the infant has sufficient memory and descriptive powers to testify about the crime. In determining an issue such as the one under consideration here, the trial court's exercise of its broad discretion need not be measured solely by the questions asked of and the answers elicited from the infant witness. We note that Larry's testimony was substantially consistent with that of the two adult prosecution eyewitnesses. State v. Armoneit, 588 S.W.2d 24, 26 (Mo.App.1979); State v. Obie, 501 S.W.2d 513, 515 (Mo.App.1973).
Defendant also argues that Larry was told everything he was to say in court by his Aunt Darlene. Although there is some basis for this assertion, the evidence indicates that Larry did have an independent knowledge of the murder. Although he initially denied to investigating police officers that he had seen the shooting, after talking to his aunt, he testified at trial that he had seen defendant shoot his mother and staunchly maintained he was standing "by Jessie" when the defendant fired. The trial court reasonably could have concluded that Larry received permissible help from his aunt in refreshing his memory (or in urging him to testify truthfully). State v. Singh, supra, 416. There are no substantial grounds for asserting that Larry testified other than on the basis of his memory. The trial court did not abuse its discretion in allowing the testimony of Larry Walker under the foregoing circumstances.
Defendant also asserts that the trial court erred in allowing certain testimony from Larry concerning his mother's whereabouts at the time of the trial. Defendant argues that the following served only to inflame the passion of the jury:
"Q. Larry, where is your mom now?
Mr. Bruntrager: I object; it's not material or relevant, not an issue.
The Court: Let him answer if he knows.
Q. Do you know where your mom is now?
A. Buried.
Mr. Bruntrager: I ask that be stricken."
The following took place out of the hearing of the jury:
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