State v. Wells, 63412

• Decision Date: 23 August 1982
• Docket Number: No. 63412,63412
• Parties: STATE of Missouri, Respondent, v. Ricky Lee WELLS, Appellant.
• Court: Missouri Supreme Court

Page 563

639 S.W.2d 563

STATE of Missouri, Respondent, v. Ricky Lee WELLS, Appellant.

No. 63412.

Supreme Court of Missouri,

En Banc.

Aug. 23, 1982.

Rehearing Denied Oct. 12, 1982.

Hale W. Brown, H. William Brown, Kirkwood, for appellant.

John Ashcroft, Atty. Gen., Mark W. Cowley, Asst. Atty. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

Appellant Ricky Lee Wells was charged with second-degree murder (§ 565.004, RSMo 1978) in the death of Gary Pierce. Appellant was convicted of manslaughter (§ 565.005, RSMo 1978) and sentenced to ten years' imprisonment. Appellant appealed and after opinion in the Missouri Court of Appeals, Eastern District, this Court ordered the cause transferred on appellant's motion.

Appellant's assignments of error include the trial court's failure to grant a mistrial as the result of the state's failure to disclose an admission of guilt by appellant pursuant to Rule 25.03 (former Rule 25.32), the trial court's failure to grant a mistrial after a state's witness during cross-examination referred to a polygraph examination he had taken, the trial court's giving of MAI-CR2d 4.50 and MAI-CR2d 1.10 to the jury in the early morning after all-night deliberations, and the trial court's failure to provide a written copy of MAI-CR2d 1.10 to the jury as required by Rule 28.02(f) (former Rule 20.02(f)).

In the late morning of November 3, 1979, appellant, his brother, Gary Wells, and his first cousin, Tom Wells, drove in Tom Wells's pickup truck to a spot along the Big River called Big River Point, approximately three miles north of Bonne Terre in St. Francois County, Missouri. They set up targets and proceeded to adjust the scope of a .22 rifle. They also brought another .22 rifle and a shotgun with them.

Approximately one hour later, Willard Rosener, a cousin of the appellant, and Gary Pierce, an acquaintance of the appellant, arrived at the spot in Pierce's pickup truck to cut firewood. The evidence indicated that the five men drank beer and cut firewood together during the afternoon.

Late in the afternoon, Tom Wells and Gary Pierce began "slapboxing". Tom Wells eventually punched Pierce in the mouth and bloodied his lip. Wells began to apologize, but Pierce tried to strike him and Wells punched Pierce again, knocking him to the ground. At this point, Rosener grabbed Pierce and attempted to break up the fight, but then Rosener and Tom Wells began to fight. As Pierce started to get up, appellant jumped on him and yelled, "I got this one." Appellant was observed kicking at Pierce while Pierce was lying on the ground. Appellant testified that he struck Pierce at least nine times with his fist.

Meanwhile, Rosener ran from the scene after Tom Wells headed for his pickup truck, threatening to shoot him. Tom Wells got into the truck and pursued Rosener, with Gary Wells following on foot. Appellant was left behind with Pierce.

Tom and Gary Wells originally told police that when they returned to the spot of the fight, they found appellant on top of Pierce, crying. They pulled him off of Pierce, who was bleeding profusely from the head. Tom Wells drove Gary Wells and appellant to Tom Wells's father's house approximately two miles away, but the father was not there. The three returned to Pierce's body, then drove to the Bonne Terre police station but found no one there. They drove to their uncle's house and then to a restaurant where Tom Wells, on reaching the Flat River police dispatcher by phone, said, "I just killed a man."

The appellant, Tom and Gary Wells then drove to the Bonne Terre police station, arriving at approximately 6:00 p. m. Appellant told a police officer he had fought with Pierce until Pierce "did not move anymore". Appellant told the officer he hit Pierce with his fist and his feet, and at one point said to the officer, "I must have killed him."

After receiving the call, police officers went to the fight scene and discovered Pierce's body. There was a log lying on Pierce's left arm and two logs were lying within five feet of the body. There were blood stains on each log. Blood was also found on one of appellant's shoes. An autopsy of Pierce's body indicated that death was caused by multiple fractures of the skull and the accumulation of blood inside the cranial cavity.

The state introduced the logs into evidence and charged that appellant had killed Pierce "by striking him with a blunt object." A pathologist testified for the state that death was caused by "brain death" and that the deceased had suffered multiple skull fractures caused by blunt force injuries which indicated that an object was applied "with considerable force."

Appellant testified that he had hit Pierce with his fist because he was afraid Pierce would stab him with a knife. There was testimony that Pierce had displayed a silver pocket knife earlier in the day. Appellant testified that as Pierce began to stand up he had his hand in his pocket and said, "I'm going to cut your living guts out, [Ricky] Wells." Appellant stated that he did not actually see a knife in Pierce's pocket at this time. Police later found a silver pocket knife in Pierce's pickup truck. Appellant testified that he hit Pierce only with his fist, and denied he kicked him or struck him with any other object.

At trial Tom Wells, as a witness for the state, presented a new version of the events, testifying that when he returned to the scene of the fight, he saw appellant throw a log at Pierce, who was lying on the ground, but that the log did not hit Pierce. When appellant picked up another log and tried to hit Pierce, Tom Wells said he (Tom Wells) blocked it with his leg. Tom Wells also testified that appellant later stated that he had hit Pierce with a log, and that appellant, Tom Wells, and Gary Wells agreed not to mention this to the police. Appellant and Gary Wells denied this during their testimony.

Appellant's first assignment of error relates to this testimony of Tom Wells and the state's failure to disclose the contents of it to defense counsel prior to trial. While this point is not decisive with respect to the disposition of this case, it represents a situation occurring with increasing frequency and the Court believes it important to emphasize that compliance with the discovery rules is not at the discretion of the state.

On Saturday, February 23, 1980, three days before the appellant's trial began, Tom Wells had gone to the assistant prosecuting attorney of St. Francois County and revealed this information for the first time. Three days later at the trial, Tom Wells testified that this was the first time he had mentioned to prosecuting authorities that appellant had thrown logs at Pierce, and that appellant had admitted to Tom Wells of hitting Pierce with a log. Defense counsel asserts he first learned of this new version of events during the state's opening statement.

The prosecutor's office had furnished defense counsel with all relevant material up to the point of Tom Wells's statements on Saturday, February 23, 1980. Defense counsel had sought a bill of particulars on February 15 to clarify in what manner the state was alleging that the appellant struck Pierce. The state said it could not do so, beyond stating that appellant struck Pierce with a "blunt object", and that the blunt object could include the logs, appellant's boots, or the butts of the guns present at the scene.

Defense counsel was thus left with the clear impression that the state could not tie appellant directly with logs seized at the scene. In fact, the assistant prosecutor admitted at the hearing on the motion for the bill of particulars on February 15,

It's a circumstantial case, Your Honor. We don't have somebody who actually can say, "Hey, he picked up that log," or "he picked up that gun butt" or "he did this." We don't have that. All I can say is that my pathologist can say that there was a blunt object used, with no delineation, outside certain perimeters, which fits a large number of blunt objects.

Yet, eight days later, Tom Wells went to the assistant prosecutor and told him that he had seen appellant attempt to hit Gary Pierce with logs, and that appellant had admitted to him that he had struck Pierce with a log. These statements were both highly relevant to the case and directly contradictory to earlier statements made by Tom Wells regarding the fight between appellant and the deceased, Gary Pierce.

Tom Wells's testimony directly contradicted his earlier statements which had not connected appellant with the logs found near the deceased's body. Tom Wells was an important state witness, in fact the only witness who could provide a connection between the blood-stained logs and the deceased. Impeachment of that testimony was therefore crucially important to the appellant. The purpose of Rule 25.03 includes the opportunity for a defendant to prepare in advance of trial for the impeachment of a witness by that witness's own testimony. State v. Dayton, 535 S.W.2d 469 (Mo.App.1976).

The state cannot logically contend that it was unaware this information would be meaningful to appellant's counsel. By withholding disclosure until its opening statement at trial, the state achieved the very result the discovery rules were designed to prevent--surprise and deception. The discovery rules seek to foster informed pleas, expedited trials, a minimum of surprise, and the opportunity for effective cross-examination. State v. Buckner, 526 S.W.2d 387, 392 (Mo.App.1975). See also State v. Scott, 479 S.W.2d 438, 442 (Mo. banc 1972). The state's failure to disclose served only to thwart these goals. We regard the state's action in this case to be deceptive and a matter of serious concern, but this concern does not control the disposition of this case.

Appellant's next assignment of error concerns the giving of MAI-CR2d 4.50 and 1.10 to the jury shortly after 5:00 a. m., following all-night deliberations.

This trial began Tuesday, February 26,...