State v. Morris

HOLMAN, Judge. Defendant, Willie Morris, was charged with the offense of murder in the second degree. Upon trial he was found guilty and his punishment was fixed by the jury at imprisonment for a term of 20 years. See §§ 559.020 and 559.030.1 Defendant has appealed. This appeal was originally heard in Division One where an opinion was adopted, but the case was subsequently transferred to Court en Banc because of the dissent of one of the judges. After the case was reargued the Division opinion failed of adoption en Banc and the cause was assigned to the undersigned. Portions of the aforementioned opinion are here adopted without the use of quotation marks. This case grew out of events that occurred at a tavern called Little Caesar’s Lounge in the City of St. Louis. On September 3, 1968, about 11:30 p. m., there was an altercation between one Richard Wair on the one hand, and defendant, his brother, and at least one other companion on the other hand. There was wrestling among the participants, or wrestling plus the striking of some blows, depending on whose testimony is accepted. During the altercation, or shortly thereafter, a shot was fired and Terrell Moss, who had not been involved, was hit and killed. No witness gave testimony tending to prove that the gun firing the fatal shot was in the possession of the defendant at the time, other than William Butler who testified for the State, and the defendant who testified in his own defense. In order to enter or leave the tavern it was necessary to go through two passageways, the “outer door” and the “inner door,” with a distance of about three feet between the two doors. Butler’s testimony, together with the inferences most favorable to the State, was as follows: As he was tending bar, he became aware that there was a fight on at the end of the bar near the inner doorway. Defendant and a number of others were fighting Mr. Wair, and got him down on the floor and were kicking him. Mr. Butler came around the bar, pulled Wair’s assailants off him and forced them outside the tavern, keeping Wair inside. Those who had been ejected went toward a car. A minute or two later Butler, while standing in the inner door holding that door open, saw defendant through a window alongside the outer door as the defendant approached the tavern. Mr. Moss then came alongside Butler from inside the tavern and touched Butler on the shoulder. At the same instant defendant opened the outer door, pointed a pistol and the pistol fired. He pulled the trigger — 827 — again but the gun only “clicked.” Mr. Moss fell to the floor and defendant fled the scene. The jury was instructed that if they found that defendant intended to shoot Butler but hit Moss instead, and found all of the elements of second degree murder set out in the instructions, they could convict defendant of second degree murder. The State’s evidence was sufficient to authorize the jury to make a finding of second degree murder; and defendant’s contention on appeal that no submissible case was made is without merit. State v. Williams, Mo.Sup., 323 S.W.2d 811; State v. Anderson, Mo.Sup., 375 S.W.2d 116; State v. Strong, Mo.Sup., 339 S.W.2d 759. Defendant’s testimony was that after the fight with Mr. Wair started, Mr. Butler pulled defendant off Wair who was then on the floor. He stated that as Wair was getting up off the floor he “went to his pocket.” Defendant then pulled a gun from his own pocket intending to protect himself in case Wair pulled something out of his pocket. However, defendant did not get a chance to see Wair take his hand out of his pocket. Butler, holding defendant by the collar with one hand and by his arm with the other hand, pushed defendant against a door or wall, striking defendant’s head. At that point the gun fired. Defendant does not know which direction the gun was pointed at that time. He testified that he did not know that anyone had been hit, and that he left the scene because he heard someone say, “Get him,” and he was frightened. He testified that all the events leading up to and including the firing of the gun occurred inside the tavern, and denied that he left the tavern, or was ejected from the tavern, before the time when his gun was fired. Defendant contends that the trial court erred in failing to instruct on self-defense. But defendant’s testimony was that the gun was fired accidentally, and the defense of excusable homicide by reason of accident was submitted to the jury. The concepts of self-defense and accidental homicide are inconsistent. State v. Baker, Mo.Sup., 277 S.W.2d 627; State v. Hale, Mo.Sup., 371 S.W.2d 249, 258. The evidence to justify an instruction on the inconsistent defense must be offered by the State or proved by third-party witnesses for the defendant. State v. Baker, supra, 277 S.W.2d 1. c. 630. Outside of the testimony of defendant, no witness gave testimony tending to support either the submission of self-defense or accidental homicide. This point is ruled against defendant. There is also no merit in the contention that the court erred in allowing Joseph Brasser to testify as an expert in the field of ballistics because he was not shown to be adequately qualified. It is difficult to understand this contention since it was shown that the witness had made more than 10,000 examinations in that area over a period of four years. Moreover, his testimony was of little consequence. He examined the bullet taken from the body of deceased and the shell casing found on the sidewalk outside the lounge. Since the defendant’s gun was not available he could not make any test to show whether the bullet was fired from that gun. His conclusion simply was that the bullet could have come from that kind of shell casing but that he could not say that the bullet in question did come from it. He was certainly shown to have sufficient qualifications to give that limited expert testimony. The next point briefed is that defendant was denied due process because the State did not show him certain photographs taken by a police photographer which he says would have aided him in his defense. These photographs and certain other material have been lodged with this court, but since they were not referred to in the trial nor mentioned in the motion for new trial they are not before us for consideration, and contentions of error relating thereto are not preserved for appellate review. After the shooting defendant and his two companions immediately left the scene in an automobile, but it was soon — 828 — disabled when he ran into a utility pole. They then ran about a mile to the home of his wife. He took the position at the trial that he fled because someone had said “get him” and that he was pursued until he got in his car. In that connection he made an offer to prove (to which the court sustained objection) that when he left his wife’s home an hour or more after the shooting “he was shot at four times, one bullet striking his leg, by a person or persons unknown.” He now contends that the court erred in excluding that testimony because it would tend to show that his departure from the scene was attributable to his fright and not to a consciousness of guilt. At the time of the proffer defendant’s attorney stated, “I don’t know who shot him. He doesn’t know who shot him. It may be that some person from that bar shot him.” Defendant cites the cases of State v. Craft, 344 Mo. 269, 126 S.W.2d 177, and State v. Burns, Mo. Sup., 322 S.W.2d 736, which state the general rule that the accused has the right to refute any incriminating circumstances relating to flight. We do not believe that rule would warrant the admission of the proffered evidence under consideration. It is our view that this evidence, if not entirely irrelevant, was at least not sufficiently connected with the events at the bar and was too remote to be admissible for the purpose suggested. Defendant next contends that the trial court erred in refusing his request to see the police report concerning the investigation of this homicide and particularly that part relating to an alleged statement by witness Butler. The request arose in the following manner. During the trial defendant’s attorney had before him a transcript of the testimony given at the coroner’s inquest. In it Detective Hummert testified that he participated in the investigation of the homicide in question. He further testified as follows: “Q. How about giving Butler’s statement then? A. William Butler who is a part-time bartender at Little Caesar’s Lounge stated he was behind the bar when a fight began near the front door and on going to the front door, he broke up the fight which was between Willie Morris and another subject unknown to him at which time Morris, who had a gun in his right hand, fired same, the shot striking the victim Terrell Moss. After the shooting Morris and other patrons in the establishment ran out of the tavern on to the street and fled the scene.” On cross-examination of Butler, counsel for defendant laid a foundation for his impeachment as follows: “Q. You talked to the police later that night? A. Sure. Q. Did you tell them the same story you’re telling us here today? A. That’s right. Q. Did you talk to Detective Hummert? A. Hummert? Q. Hummert. Do you know Detective Hummert? A. Not as I know of. * * * Q. Did you tell Detective Hummert that after the shooting Morris and other patrons in the establishment ran out of the tavern on to the street and fled the scene? A. No, I don't know Detective Hummert. Q. Did you say that to a policeman ? A. No, not as I know of, no. I didn’t talk to but two.” It appears from the transcript that the two officers who interviewed witnesses at the scene were Detectives Troupe and Roche and they both testified. Having laid a foundation therefor it would appear that counsel could have asked each of those witnesses if Butler had made the statement set out in the foundation question but he did not see fit to do so. When Officer Hummert testified he stated that he participated in the follow-up investigation but that he did not interview William Butler. On cross-examination counsel sought to impeach him by asking questions in regard to his testimony before the coroner’s jury. Upon objection he was questioned outside the hearing of the jury. He then stated that his testimony in regard to a statement by Butler was entirely hearsay and that said testimony was his recollection of information obtained in discussions with officers who had interviewed him and from reading the police report. The court thereupon ruled that counsel could not ask Hummert, in the presence of the jury, if he had obtained the statement heretofore quoted from Butler. — 829 — Defendant does not complain of that particular ruling on this appeal. At this point counsel for defendant asked that he be permitted to see the police report so that he could determine whether the officer or Butler had made any inconsistent statement therein. The court ordered it produced so that it could screen it to determine whether it should be shown to defendant. The court thereafter ruled as follows: “After reading the entire Exhibit Alpha consisting of thirteen pages, and especially the references to the statement or narrative of what the witness William Butler was alleged in such report to have said, the Court concludes and finds that such statements attributed to Butler are so intertwined and intermingled with other portions of the full report Alpha that it would be practically impossible to determine that the statements therein contained, and especially on page 4, were actually correct verbatim statements made by Butler and that the Court is at a loss to determine from the report exactly to whom such report and statement of Butler was made. “The entire thirteen page document is in the form of a narrative and the Court finds that, as indicated in State v. Au-buchon [Mo.Sup], 381 S.W.2d 807, 814, such report here was written as a part of an initial preparation of the State in contemplation of a prosecution. Reserving the right to make any comments on the kind, character and nature of such reports, this Court finds that the rights of the defendant would not be prejudiced by denying to defendant’s counsel the use of such purported report of a statement of William Butler as contained in the conglomerate supplementary report. * * The request will be overruled and denied.” After the appeal was taken this court ordered that the exhibit be made available to counsel for use in preparing their briefs. The report was prepared and signed by Captain Valenti who did not interview any witnesses but apparently used information furnished by other officers. The part relating to Butler’s statement is as follows: “While at the scene, the 6th District Officers interviewed the following named persons: WILLIAM BUTLER, Negro male, who stated that he works part time as a bartender at Little Caesar’s Lounge, located at 4873 Natural Bridge. Continuing, William Butler stated that on Tuesday evening, September 3, 1968, he was tending bar, at which time there was a large crowd of people in the lounge. He stated that he observed two customers arguing near the front door, who then began to struggle with each other. He then left his place at the bar and attempted to push the two subjects out the front door, when some unknown person in the lounge said, ‘Look out, he has a gun.’ At this time there was a shot fired and the victim, who was standing next to him (Butler), fell forward and staggered out the door. “William Butler further stated that the subject with the gun pointed the gun into the lounge and attempted to fire it, however, it did not go off and the subject ran from the doorway of the lounge. He also stated that the subject responsible for the shooting was one: WILLIE MORRIS, Negro male * * It is our view that the trial court did not err in its ruling. The refusal of the court to permit inspection of the report by defendant did not cause defendant’s trial to be fundamentally unfair and therefore neither State v. Aubuchon, Mo.Sup., 381 S.W. 2d 807, nor State v. Cannon, Mo.Sup., 465 S.W.2d 584, would require a different ruling. We do not think that the quoted portion of the report would have been of any benefit to defendant’s counsel. This case, as well as Cannon, demonstrates that police reports are work products prepared largely upon hearsay information for the use of the police department and the prosecutor. In this instance, Butler’s purported statement was written by an officer who had not interviewed him and it was a — 830 — composite summary of what interviewing officers of the Sixth District had related to him as to what Butler had said. It would not have been admissible in evidence under any circumstances. And it would have been of no more value to defendant’s counsel in the cross-examination of Butler, or in seeking to impeach him by the cross-examination of the interviewing police officers, than was the statement in the transcript of the testimony before the coroner which counsel had available at all times. After the trial court read the report it was a matter for the exercise of its discretion to determine whether it should be shown to defendant’s counsel and we see no indication that the court abused that discretion. The situation here is analogous to that in State v. Cannon, supra, in which we held that the defendant was not prejudiced by the court’s ruling in denying his request to examine the police report. We state again, as indicated in Cannon, that this court is now considering the adoption of rules relating to criminal discovery which may settle many questions in that area for future cases. As indicated, we rule this contention against defendant. Defendant further contends that Instruction No. 3 was prejudicially erroneous. This manslaughter instruction had the following introductory paragraph: “If you find the defendant not guilty of murder second degree as explained in the foregoing instruction, then you will consider whether or not, under the evidence in the case, the defendant is guilty of manslaughter. Manslaughter is the killing of a human being not herein declared to be murder in the first degree or excusable homicide.” Thereafter, the instruction hypothesized the specific facts necessary for a finding of guilt. The error complained of is the reference to murder in the first degree in the manslaughter definition. First degree murder was not otherwise mentioned or defined in the case. We do not think that this inadvertent error confused the jury. If the definition had referred to murder without specifying the degree it would have been correct. Moreover, the definition was not necessary and, since the jury was required to find every fact essential to the offense, we do not believe the error could be considered prejudicial. We accordingly rule that no prejudicial error occurred. The next point briefed is that the court erred in failing to give an instruction on excusable homicide. We fail to understand this contention since the court gave the instruction on accident which was offered by defendant. This was the only theory of excusable homicide supported by the evidence. The point is disallowed. The final contention relates to alleged error in Instruction No. 4, which was not mentioned in the motion for new trial. We are asked to review it under the “plain error” rule. Our consideration pf the contention and the circumstances here involved has caused us to conclude that there is no occasion for us to review this contention under Rule 27.20(c), V.A.M.R. The judgment is affirmed. FINCH, C. J., DONNELLY and HENLEY, JJ., and WEIER, Special Judge, concur. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER, J., dissents in separate dissenting opinion filed, and concurs in separate dissenting opinion of BARDGETT, J. MORGAN, J., not sitting. Footnotes [1] Statutory references are to RSMo 1969, V.A.M.S.