State v. Westmoreland, 36943

• Decision Date: 21 September 1976
• Docket Number: No. 36943,36943
• Citation: 541 S.W.2d 769
• Parties: STATE of Missouri, Respondent, v. Walter Lee WESTMORELAND. Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 769

541 S.W.2d 769

STATE of Missouri, Respondent, v. Walter Lee WESTMORELAND. Appellant.

No. 36943.

Missouri Court of Appeals, St. Louis District, Division Four.

Sept. 21, 1976.

Dennis Neil Smith, Asst. Public Defender, Clayton, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Walter Lee Westmoreland was found guilty by a jury of murder in the second degree and sentenced to imprisonment for a term of eighteen years. He has appealed from the ensuing judgment. We affirm.

Appellant does not challenge the sufficiency of the evidence. It is sufficient to state that a jury reasonably could find that on April 12, 1974, in St. Louis County, appellant shot and killed Chester L. Dent. Certain additional facts will be related in connection with issues presented on this appeal.

Janet Sanders was 'living' with appellant, and on the day of the homicide Chester Dent came to her apartment and asked to talk to Nancy, his wife, from whom he was separated and who was Janet's sister. She asked Dent to leave and he did so. Janet, and others at the house, which included Nancy and appellant, then went to a nearby real estate office where Janet's mother worked and Dent followed them. A disturbance there occurred and appellant shot and killed Dent. Janet testified that after the shooting she went to where Dent was lying and at that time he was still alive. She looked for weapons and saw none. She further testified that after conferring with Roscoe Johnson, one of the persons who had gone to the real estate office she placed in Dent's hand a knife which she had previously obtained at her home and put in her purse.

In Point I appellant assigns as error the admission in evidence of the testimony of Janet that she placed a knife in Dent's hand because 'such act was neither part of the res gestae, nor act of defendant, nor attributable to him, but merely the act of a third party, acting alone and, therefore irrelevant and immaterial.'

We first note that the testimony of Janet to which this objection was directed did not pertain to the proof of a homicide by appellant. In fact, in his testimony appellant admitted that he did the shooting that caused Dent's death. Therefore, the cases cited by appellant (for example, State v. Talbert, 454 S.W.2d 1 (Mo.1974)) to the effect that 'a statement or act of a third party made out of the presence of the defendant is not admissible in the absence of the showing of a conspiracy,' are not in point because they pertain only to acts or statements of a third party to prove the commission of the charged offense. The testimony in this case pertained to an issue of self-defense, and whether Dent had a weapon in his hand, and if so for what reason, was material and relevant to that issue. When the police officers arrived there was a knife in Dent's hand. If that knife had been placed there after the shooting, as Janet testified, the State was entitled to show this to disprove appellant's claim of self-defense. The trial court properly admitted this testimony.

During oral argument to the jury the following occurred:

MR. DITTMEIER (Prosecutor): Don't picture him sitting quietly here like he is now. Picture him that day when Chester Dent was looking at his wife and put that gun to his temple and shot him.

MR. SCHAINKER (Defense Counsel): I object to that, your Honor. May we approach the bench?

THE COURT: Objection sustained. (The following was heard at the bench out of hearing of the jury)

MR. SCHAINKER: Your Honor, I object to the last, putting the gun to the temple as prejudicial and inflammatory argument on the part of the prosecutor. He is conducing an experiment. We have never had any expert in to testify to that. No witness testified or made an experiment of that nature in this courtroom. It is totally outside the scope of the evidence. It is prejudicial and I move for a mistrial.

THE COURT: It is overruled. Let the record show all he has done is pick up the gun and pointed it and pulled the trigger.

MR. SCHAINKER: I ask the jury to be admonished to disregard it, Your Honor.

THE COURT: The jury will be so instructed.

(The following was heard within hearing of the jury)

THE COURT: The jury will disregard the display by Mr. Dittmeier.

It is not clear as to precisely what the prosecutor did. But, assuming that he picked up the murder weapon, held it to his temple, and pulled the trigger (an extremely foolish act), there was evidence that this was the way the homicide occurred. The trial court sustained appellant's objection to the display, and admonished the jury to disregard that display. In his Point II appellant asserts as error the refusal of the court to declare a mistrial.

The display was part of the argument as to which the court has considerable discretion. State v. Wright, 515 S.W.2d 421 (Mo. banc 1974). Also, granting a mistrial is a drastic remedy not to be taken unless the incident is so grievous that the prejudicial effect can be removed no other way. State v. Smith, 431 S.W.2d 74 (Mo.1968). We cannot say with any confidence that the display was improper under the circumstances. The trial court viewed the occurrence and concluded that...