State v. Woodard

• Decision Date: 04 September 1973
• Docket Number: No. KCD,KCD
• Citation: 499 S.W.2d 553
• Parties: STATE of Missouri, Respondent, v. Alvin Charles WOODARD, Appellant. 26371.
• Court: Missouri Court of Appeals

Page 553

499 S.W.2d 553

STATE of Missouri, Respondent, v. Alvin Charles WOODARD, Appellant.

No. KCD 26371.

Missouri Court of Appeals, Kansas City District.

Sept. 4, 1973.

Willard B. Bunch, Public Defender for the 16th Judicial Circuit, Kansas City, for appellant.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, C.J., and PRITCHARD, and SOMERVILLE, JJ.

SOMERVILLE, Judge.

A jury found defendant guilty of murder in the second degree in violation of Section 559.020 RSMo 1969, V.A.M.S. and assessed his punishment at thirty years in prison. Sentence and judgment were rendered accordingly. Sections 559.020 and 559.030 RSMo 1969, V.A.M.S. Defendant duly effected his appeal.

On appeal defendant asserts six counts of error: (1) the state's evidence was insufficent to support a conviction of murder in the second degree; (2) a dying declaration of the victim was excluded; (3) the state's attorney argued punishment for the first time in the final portion of his closing argument; (4) the state was permitted to question one of its own witnesses from an extrajudicial statement, and was permitted to read the extrajudicial statement to the jury at the close of the state's case, thereby depriving defendant the right of cross-examination and confrontation guaranteed by Article I, Section 18(a) of the Constitution of Missouri, V.A.M.S., and the Sixth and Fourteenth Amendments of the Constitution of the United States; (5) the state was permitted to cross-examine and impeach its own witness by means of an extrajudicial statement, thereby prejudicing defendant's right to a fair trial; and (6) the state's attorney, during his closing argument, referred to the extrajudicial statement as constituting substantive evidence to be considered by the jury as proof of the state's case. All of the points raised and briefed by the defendant will be ruled on, seriatim, since defendant's conviction must be reversed and a new trial granted.

Resolve of defendant's first (1) point compels a review of the evidence in the light most favorable to the state, considering as true all evidence and reasonable inferences favorable to the state and disregarding all evidence and inferences unfavorable at the state. State v. Strong, 339 S.W.2d 759 (Mo.1960), State v. Bruton, 383 S.W.2d 525 (Mo.1964), State v. Archer, 328 S.W.2d 661 (Mo.1959), State v. Colthorp, 437 S.W.2d 75 (Mo.1969) and State v. Watson, 350 S.W.2d 763 (Mo.1961).

It is the sole prerogative and function of the jury to weigh and evaluate the evidence and make the crucial determination of whether such evidence proves beyond a reasonable doubt that defendant committed murder in the second degree. Appellate review is limited to determining whether there is sufficient substantive evidence to support the jury's determination. State v. Strong, 484 S.W.2d 657 (Mo.1972), State v. Crawley, 478 S.W.2d 344 (Mo.1972), State v. Odom, 353 S.W.2d 708 (Mo.1962).

The requisite elements of murder in the second degree are willfulness, premeditation and malice aforethought. State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973), State v. Bruton, supra, State v. Strong, 339 S.W.2d 759 (Mo.1960), State v. Archer, supra, State v. Jewell, 473 S.W.2d 734 (Mo.1971). In the context of murder, State v. Marston, 479 S.W.2d 481 (Mo.1972), p. 484, defines willfulness as 'intentionally' or 'knowingly', and premeditation as 'thought of beforehand for any length of time, however short'. In the context of murder, State v. Williams, 323 S.W.2d 811 (Mo.1959), p. 813, defines malice as "the intentional doing of a wrongful act without just cause or excuse". Absent overt statements by an accused, intent to kill is necessarily subjective. Malice aforethought may be presumed when an intentional killing with a deadly weapon occurs. State v. Hammonds, 459 S.W.2d 365 (Mo.1970). Flight and resistance of arrest may be considered by the jury as evidencing consciousness of guilt. State v. Williams, 382 S.W.2d 597 (Mo.1964), State v. Kilgore, 447 S.W.2d 544 (Mo.1969).

With the above as a legal matrix, evidence most favorable to the state to sustain defendant's conviction for murder in the second degree appears as follows. Shortly before six P.m. on November 13, 1971, defendant entered the Neighborhood Tavern in Kansas City, Missouri. He was observed to be carrying a sawed-off, single shot, breech loading 410 shotgun--an 'illegal firearm according to standards of the Federal Government'. He was then observed talking to an unknown man, who was facing him, and with the gun pointed toward the unknown man. The bartender of the tavern walked over to defendant and the unknown man and made inquiry of defendant as to what his trouble was and whether anybody was bothering him. Defendant ignored the bartender's inquiries, and continued talking to the unknown man. The bartender then asked a waitress at the tavern to call the police, which she did. A short time later, defendant was seen talking to Larry McNeil, the decedent (also defendant's brother-in-law), while both were standing at the bar. Defendant had the gun in his hand when he approached the decedent. The conversation between defendant and decedent lasted approximately four or five minutes. The conversation between the two was apparently subduced because the bartender, who was approximately twenty feet away, did not hear what was said beteen the two. During the conversation the bartender had his back to defendant and decedent, checking the cash register. At the conclusion of the four or five minute conversation, the bartender heard a shot. The bartender turned and observed that the decedent had been shot and that defendant was walking toward the front door of the tavern with the gun in his hand. The decedent sustained a massive and fatal wound in his right groin and death occurred approximately seven days later. As defendant approached the front door of the tavern, a police officer entered with a drawn weapon.

The officer told everyone to 'freeze', whereupon defendant grabbed Dolly Farris (his sister and an employee of the tavern) by the neck and, using her as a shield, backed to a door in the rear of the tavern which lead to a utility room. While backing toward the door, defendant had the gun over his sister's shoulder, pointed toward the police officer. When the defendant got in close proximity to the door, he released his sister and ran through the door. The police officer attempted to talk defendant into coming out of the utility room, and failing to do so, then tried to flush defendant out by firing four or five shots, also to no avail. The tavern was then cleared of patrons and employees and tear gas was used. Approximately forty-five minutes later defendant was found unconscious underneath a corner of the bar. At the time the 410 shotgun, loaded, was in defendant's possession.

The evidence set forth, if believed by the jury, was sufficient to support a finding by the jury of all the requisite elements of murder in the second degree. Entering the tavern with a loaded sawed-off shotgun, engaging decedent in conversation for approximately five minutes with the gun pointed toward him, and the resultant discharge of the gun and fatal wounding of decedent, constituted a sufficient basis for the jury, to infer that defendant willfully, premeditatedly and with malice aforethought shot and killed decedent. Collaterally, the jury was entitled to evaluate and place in proper perspective defendant's conduct after the police arrived. Defendant's contention that the state failed to make a submissible case of murder in the second degree is ruled against him.

Resolve of defendant's second (2) point necessitates delineation of certain additional evidence. Defendant sought to hurdle the hearsay rule on the theory that a purported statement by the decedent constituted a dying declaration. Principles of law determinative of the admissibility or non-admissibility of purported dying declarations are well drawn in Missouri. However, like most principles of law, their controlling applicability is seldom susceptible of easy or quick determination. To be admissible, a dying declaration must have been made by the declarant in extremis 'in the belief on the part of the declarant of impending death, after hope of recovery has been abandoned.' State v. Custer, 336 Mo. 514, 80 S.W.2d 176, 177 (Mo.1935). See also State v. Davis, 337 Mo. 411, 84 S.W.2d 930 (1935) and State v. Proctor, 269 S.W.2d 624 (Mo.1954). Belief of 'impending death' and abandonment of 'hope of recovery', both of which are conditions precedent to the admissibility of a dying declaration, are necessarily subjective, and, hence, fall into a category that is (1) difficult to prove, and (2) even more difficult to ascertain. There are, however, recognized methods of proving the declarant's state of mind as to the required subjective elements, the strongest, undoubtedly, being express statements by the declarant, but, additionally, by showing the nature and extent of the inflicted wounds, statements of attending physicians made to and acquiesced in by declarant, the length of time elapsing between the making of the declaration and death itself, the administration of 'last rites', and last, but by no means least, the conduct of declarant and any and all other circumstances that reveal his apprehension of impending death and abandonment of hope for recovery. State v. Livingston, 204 S.W. 262 (Mo.1918) and State v. Proctor, supra. Summarized, unless declarant makes express statements disclosing his state of mind, both as to belief of impending death and abandonment of hope of recovery, objective facts must be shown from which declarant's state of mind, both as to belief of impending death and abandonment of hope for recovery, may be reasonably inferred.

Dying declarations are as admissible to exonerate an accused as they are to convict, and rightly so. State v. Livingston, supra. It is...