State v. Umfrees, 53002

• Decision Date: 12 November 1968
• Docket Number: No. 53002,53002
• Citation: 433 S.W.2d 284
• Parties: STATE of Missouri, Respondent, v. Eddie Douglas UMFREES and Donald Lee Beishir, Appellants.
• Court: Missouri Supreme Court

Page 284

433 S.W.2d 284

STATE of Missouri, Respondent, v. Eddie Douglas UMFREES and Donald Lee Beishir, Appellants.

No. 53002.

Supreme Court of Missouri, En Banc.

Nov. 12, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Richard K. Wilson, Sp. Asst. Atty. Gen., Springfield, for respondent.

Thomas P. Howe, John J. Stewart, Clayton, for appellants.

STORCKMAN, Judge.

The defendants wee jointly tried and found guilty by a jury of murder in the second degree. The defendants and the victim were all inmates of the Missouri State Penitentiary at the time the offense was committed. Having been previously convicted of felonies, the defendants were each sentenced by the court under the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S. Both defendants were sentenced to life imprisonment. Two other inmates testified as eyewitnesses that the defendants committed the offense and there is no contention that the evidence was not sufficient to support the verdict of the jury. The questions presented on appeal relate solely to the exclusion of certain testimony offered by the defendants.

On November 27, 1965, at approximately 1:30 p.m., James Hawkes, an inmate of the penitentiary, was stabbed in the region of the heart and died almost instantly. Cecil Garnett, a guard, saw Hawkes enter the music room of the penitentiary and leave a few minutes later. A few seconds later Garnett heard a disturbance outside and found Hawkes wounded and apparently dead lying on a sidewalk. Garnett saw only one convict in the area at the time but did not recognize him. Ray Warren and Roger Turnbough, inmates of the penitentiary, testified that they saw the defendants Umfrees and Beishir approach Hawkes; that Hawkes was stabbed by Umfrees and Beishir struck Hawkes on the side of the head with a metal object.

The music room, outside of which the offense was committed, is located in the 'upper yard' of the penitentiary, and the 'lower yard' in which there is a handball court is at the other extremity of the penitentiary. The distance between the music room and the handball court is about two blocks or 150 yards. The defendants testified they were playing handball at the time Hawkes was killed. Numerous witnesses, all inmates of the penitentiary, corroborated the defendants' testimony that they were on the handball court at the time in question. The defense evidence was that Umfrees and Beishir were partners that day and as a winning combination continued to hold the court for a period of time which included the time when Hawkes was attacked and stabbed to death.

During the examination of John M. Warriner, testifying on behalf of the defendants, this sequence occurred:

'Q Did you have a conversation with Ray Warren on the day that Hawkes was killed, in reference to the death of Hawkes?

'MR. KINDER: Just a moment, Your Honor.

'(The following proceedings were had at the bench, outside the hearing of the jury:

'MR. HOWE: I asked Ray Warren, when he was on the stand, specifically if he made a statement to this witness in regard to the death of Hawkes.

'THE COURT: What statement?

'MR. HOWE: To the effect that he had killed--that he had taken care of Hawkes.

'MR. KINDER: I don't remember any such testimony. * * *.'

At this point a recess was taken to permit the court reporter to examine his notes of Warren's cross-examination. The result of the examination was not recorded. 'MR. HOWE: Your Honor, at this time I would make an offer of proof that if this witness were to testify, he would state that he did have a conversation with Ray Warren very shortly after the stabbing of Hawkes, and that he met Ray Warren coming down into the lower yard and, at that time, Hawkes said to him, 'Tell Tommy that I took care of the deal,' and that--

All the transcript shows is that in response to questions by defendants' counsel, the witness Warren testified that he did not know John Warriner by name and that he did not tell Warriner to tell Tommy Hanks who was in the hospital that he, Warren, 'took care of the deal'. When the court reconvened after the recess, defendants' counsel made this offer of proof:

'THE COURT: You mean Warren said--

'MR. HOWE: Warren said to him, to tell Tommy, who was then in the hospital, that this witness worked in the hospital, tell Tommy that he took care of the deal and Tommy would known what he meant.'

The state objected on the ground the statement was immaterial, speculative and did not tend to prove or disprove any fact in the case and would cloud the issues. The defendants urged its admission to show Warren 'had a motive' and to show bias and interest on Warren's part in testifying. The exclusion of this testimony of defendants' witness Warriner is assigned as error. In support of this contention, the defendants cite State v. Pigques, Mo., 310 S.W.2d 942; Arnold v. Alton Railroad Co., 348 Mo. 516, 154 S.W.2d 58, and Kunz v. Munzlinger, Mo., 242 S.W.2d 536. These cases are relied on for the holdings that the interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters and the extent of the interest or bias may be shown by the testimony of others, although much is left to the discretion of the trial court as to how far the inquiry may go into the details of the difficulty, disagreement or other transaction which caused the hostility, prejudice or ill feeling. The only other case cited is State v. Solven, Mo., 371 S.W.2d 328, which was reversed and remanded because the trial court refused to permit defense counsel to bring out on cross-examination of the state's identifying witness that the witness, on advice of the circuit attorney, had refused to talk to defendant's counsel. These cases, however, fail to reach the determinative factor in this case.

The facts stated in an offer of proof must be specific and in sufficient detail to establish the admissibility of the evidence sought to be introduced and to demonstrate its relevance and materiality. Kinzel v. West Park Investment Corporation, Mo., 330 S.W.2d 792, 795(1); Keeshan v. Embassy Investment Company, Mo.App., 303 S.W.2d 666, 669(1); Rutledge v. Baldi, Mo., 392 S.W.2d 244, 248(3). We must assume that the party making the offer of proof has stated it as fully and favorably as he can. Rutledge v. Baldi, Mo., 392 S.W.2d 244, 248(4).

Whether we regard the statement offered as directed at impeachment of the witness Warren or showing that he 'had a motive', its relevancy and materiality has not been demonstrated. The statement offered is vague and uncertain. The 'deal' referred to its not explained or described in the offer or elsewhere in the transcript. Its admission in evidence would not tend to prove or disprove any material issue. On the other hand, it would tend to create confusion and speculation. The trial court did not err in excluding the testimony offered. State v. Feltrop, Mo., 343 S.W.2d 36, 38(7); State v. Laspy, Mo., 323 S.W.2d 713, 718(9); State v. Arnold, 206 Mo. 589, 105 S.W. 641, 643(2).

The other point relied on by the defendants is as follows: 'The trial Court erred 'MR. HOWE: * * * This line of questioning would be that this witness will testify that he and Warren, in running this card game for Hawkes, were holding out on him, on Hawkes; that Hawkes got word of it and, that morning, Hawkes stabbed this gentleman, which would then show that Ray Warren would have a motive for killing or for being involved in the death.

in excluding the testimony of Tommy Hanks who would have testified that he and the State's witness Warren ran a card game for the decedent Hawkes, that they were holding out on the decedent, and that for this reason the decedent had stabbed the witness Hanks the morning of the murder.' After Thomas Dean Hanks, a witness for the defense, had testified that he and Warren ran a poker game and Hawkes backed it, the following proceedings were had at the bench, out of the hearing of the jury:

'THE COURT: I don't know that would show any motive on Warren.

'MR. HOWE: In other words, his testimony would be that he and Warren were holding out . . .

'THE COURT: Yes, but it doesn't show that Warren would have any motive to testify against these people.

'MR. HOWE: I think that would be a jury question, Your Honor.

'THE COURT: I don't think so. I think it's too far afield and too speculative. I just don't see the connection. You have made your offer, is that your whole offer?

'MR. HOWE: Yes, Your Honor.

'THE COURT: What is your objection?

'MR. KINDER: My objection is as to any dealings between these three men is too far removed and too speculative to have any probative worth and, therefore, inadmissible. It tends neither to prove or disprove any material issues in this case, nor does it tend to impeach the witness' veracity in any manner.

'MR. HOWE: It's not for impeachment. I think it certainly shows Warren could have had a motive.

'MR. KINDER: Mr. Warren is not charged.

'MR. HOWE: But he is also at the scene.

'THE COURT: I know, but you can't disprove one murder by proving another man may have committed it. That's not the issue.

'MR. HOWE: I think the nature of the testimony is certainly Warren could have committed it.

'THE COURT: Well, there are fifteen hundred other people that could have.

'MR. HOWE: But they all didn't have a reason.

'THE COURT: You don't know that Warren had a reason. We don't know whether Hawkes knew Warren was holding out on him. I'm going to have to sustain the objection.'

In support of their contention that the court erred in excluding the evidence offered, the defendants rely on the same four cases cited under the first assignment of error. They are beside the point whether the offer was for purposes of impeachment or to implicate the witness Warren as a person having a motive to kill Hawkes.

Evidence that another person had an opportunity or motive for committing the crime for which the defendant is being tried is not admissible without proof that such other person...