State v. Vincent
| Decision Date | 14 March 1990 |
| Docket Number | Nos. 15601,16402,s. 15601 |
| Citation | 785 S.W.2d 805 |
| Parties | STATE of Missouri, Respondent, v. Sammy Dee VINCENT, Appellant. Sammy Dee VINCENT, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Melinda K. Pendergraph, Columbia, for appellant.
William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for respondent.
Sammy Dee Vincent (hereafter referred to as "appellant") was charged with and convicted of the offense of second degree murder. § 565.021.1. 1 He was sentenced as a prior and persistent offender. §§ 558.016 and 557.036.4. Appellant was sentenced to life imprisonment. Following sentencing, appellant filed a Rule 29.15 motion for post-conviction relief. Counsel was appointed and an amended motion filed. Appellant's Rule 29.15 post-conviction motion was denied after evidentiary hearing. Appellant appeals his conviction in the criminal case and appeals the denial of his Rule 29.15 post-conviction motion. The two appeals are consolidated before this court. Rule 29.15(l ).
Appellant presents four points in the appeal of his conviction for second degree murder and one point in the appeal of the denial of his Rule 29.15 post-conviction motion. He contends, with respect to the criminal case, that (1) the trial court erred by permitting a witness to testify that the victim in the murder case (Rosemary Sisk) told the witness that she was afraid of appellant and that appellant had threatened to kill her; (2) the trial court erred by permitting a witness (Dr. Ron Hill) to state his opinion as to the path the bullet traveled through the body of the victim; (3) the trial court erred in denying his motion for acquittal because the state failed to elicit evidence that proved that the victim died or that the victim died as a result of a gunshot wound inflicted by appellant; and (4) the trial court erred by refusing appellant's tendered jury instructions on voluntary manslaughter as a lesser included offense of second degree murder. Appellant further contends, with respect to the Rule 29.15 post-conviction motion, that the hearing court erred in denying his claim that he did not receive effective assistance of counsel in the trial of his criminal case.
The evidence in the criminal case is viewed, for purposes of appeal, in the light most favorable to the verdict. Consideration of the appeal of the denial of the Rule 29.15 post-conviction motion is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 29.15(j).
Rosemary and appellant lived together. Rosemary's son, Darren, age 16, lived in the same household. The events which led to the criminal charge occurred the evening of March 10, 1986, and led to the death of Rosemary in the early morning hours of March 11, 1986.
Rosemary had lived with appellant for a little more than one year. She and Darren had moved out about a month before this incident and returned two weeks later.
On the evening of March 10, 1986, Darren was home. Appellant and Rosemary had been out. They were in separate vehicles; however, they had been together during the course of the evening. Both had been drinking. Rosemary was the first to return home. She arrived there about 9:00 p.m. or 9:30 p.m., but left again. Appellant came home and shortly thereafter, Rosemary returned. Rosemary and appellant went to bed. They quarreled and Rosemary told appellant that she had talked with a friend from Alabama, a Jack Matthews, earlier that day and had agreed to leave with him and go to Alabama.
Appellant got up, dressed, and went out the door. He left the house, went through a gate, then decided to go back into the house to get a pistol that was there. When appellant returned to the house, Rosemary continued quarreling. Appellant got the pistol and again went out the back of the house. Rosemary followed him to the outside. Appellant continued through a gate, closed it, wheeled around and fired the pistol he had retrieved from the house. Appellant continued walking toward a nearby truck. He heard Rosemary say, "Sam, I'm hit." Appellant looked back toward the house to a porch where Rosemary had been standing. He did not see her. He walked back toward the porch and saw her sitting. He saw that she had been struck with the bullet.
Darren came to the door. Appellant told Darren to get dressed and come with him. Appellant carried Rosemary to his truck. Darren got in the truck with appellant and Rosemary. They drove to the Bernie, Missouri, police station. An ambulance was called and the ambulance transferred Rosemary to a hospital.
Rosemary was treated at a hospital at Dexter, Missouri, by Dr. Ronald Hill. Dr. Hill performed surgery on Rosemary during the early morning of March 11. He began the surgery about 2:30 a.m. and finished about 4:00 a.m. The surgery was directed to a gunshot wound through Rosemary's abdomen. Rosemary's liver, pancreas, spleen and kidney were affected. Dr. Hill removed part of Rosemary's liver, part of the pancreas and spleen. He also removed a kidney.
Appellant was arrested the evening of March 10. On the morning of March 11, a deputy sheriff went to the jail and told him that Rosemary Sisk was dead.
Appellant's first allegation of error is directed to the trial testimony of witness Bert Taylor, Rosemary's brother.
In the prosecuting attorney's opening statement, the jury was told that Bert Taylor saw Rosemary the morning of March 10 and talked with her. The jury was further told that Rosemary was living with appellant and that Rosemary had told Taylor that she was afraid of appellant, that appellant was jealous and had threatened to kill her. At the conclusion of the opening statements, the prosecuting attorney called Bert Taylor as the state's first witness. At that time, appellant's trial attorney advised the court that he wished to pose an objection to Taylor's testimony. A conference was held outside the presence of the jury. Appellant's counsel told the court that he expected Taylor to testify that Taylor saw Rosemary on March 10, 1986, and that Rosemary had told Taylor that she was afraid appellant would harm her or afraid that he would kill her. Appellant's attorney objected to that testimony being offered on the basis of hearsay and on other constitutional grounds. That objection was denied. Thereafter, the state called Bert Taylor as its first witness.
During the course of Taylor's testimony, the following occurred:
Q. On the morning of the 10th of March where were you?
A. I was at my other sister's house, Marie Scott.
Q. On that morning did you have occasion to see the decedent Mrs. Sisk?
A. She came out about 9:30 that morning.
Q. Did you have a talk?
A. Yes, sir.
Q. What did you have a talk about?
Q. What did you talk about?
A. She said, "yes," and I asked her, "Have you about got your problems straightened out now?" I was concerned about her because I saw her stuff in the garage and she said, "no, not really." She said, "our problem, Bert, is Sam is crazy jealous."
Q. Mr. Taylor, evidently--
A. She told me that their problem was Sam was crazy jealous. She said, "Bert, he has threatened to kill me." And that night he did.
Appellant complains that error was committed "in overruling appellant's objections to hearsay testimony that the victim, Rosemary Sisk, had been afraid of appellant and that appellant had threatened to kill her...." It is unclear as to exactly what this allegation of error is directed.
In the matter addressed by the trial court, immediately following opening statements, appellant's counsel complained about the anticipated testimony of Taylor. He posed his complaint as an objection, saying, "Judge, I would like to object to that as being hearsay...." The court's ruling in response to the "objection" was "defendant's motion will be denied." In the course of Taylor's testimony, appellant's attorney objected to a part of the testimony "based upon the motion I made in chambers." Thus, it appears that appellant's trial counsel intended for the "objection" he made at the close of opening statements to be, in effect, a motion in limine. It appears, likewise, that the court treated the "objection" as a motion in limine. If appellant's first allegation of error is directed to the proceedings held outside the presence of the jury prior to Mr. Taylor's testimony and after opening statements, that allegation of error fails. The denial of a motion in limine preserves nothing for appeal. State v. Mason, 650 S.W.2d 15, 17 (Mo.App.1983); State v. Johnson, 586 S.W.2d 437, 440 (Mo.App.1979).
That allegation of error also fails if it is intended to be directed to Taylor's testimony as quoted above. There, Taylor testified:
She told me that their problem was Sam was crazy jealous. She said, "Bert, he has threatened to kill me." And that...
To continue reading
Request your trial
-
State v. Myszka, WD
...corpus delicti may be proved with circumstantial evidence." State v. Baker, 859 S.W.2d 805, 813 (Mo.App.1993) (citing, State v. Vincent, 785 S.W.2d 805, 810 (Mo.App.1990)). Viewed in the light most favorable to the verdict, the evidence at trial established that the deceased was fatally sho......
-
State v. King
...United States Constitution. Initially, we note that the denial of a motion to suppress preserves nothing for appeal. State v. Vincent, 785 S.W.2d 805, 808 (Mo.App.1990). However, since Defendant did renew his objection at trial, we choose to treat his point as challenging the ruling at tria......
-
State v. Weston, s. 19121
..."The corpus delicti in a homicide case consists of (1) a person's death, and (2) the criminal agency of another." State v. Vincent, 785 S.W.2d 805, 810 (Mo.App.1990). There is an abundance of evidence of corroborating circumstances that tends to prove corpus delicti and corresponds to circu......
-
Baker v. State
...in a Rule 29.15 motion are not self-proving, and a movant has the burden of proving the grounds asserted. State v. Vincent, 785 S.W.2d 805, 812 (Mo.App. S.D.1990). Where a movant fails to offer evidence at the post-conviction evidentiary hearing as to why counsel failed to object, he has fa......