Opinion
No. 23851.
April 25, 2002.
Appeal From Circuit Court of Iron County, Hon. J. Max Price, Circuit Judge.
Terry J. Flanagan, for Appellant.
Breck K. Burgess, for Respondent.
Opinion
INTRODUCTION.
Charles Lee Rutter ("Defendant") appeals from a judgment of the Circuit Court of Iron County following a jury conviction of murder in the first degree, section 565.020, and armed criminal action, section 571.015. Following his conviction, Defendant was sentenced by the trial court to concurrent terms of life imprisonment without the possibility of probation or parole for murder in the first degree and life imprisonment for armed criminal action, to be served in the Missouri Department of Corrections. Defendant raises six points on appeal, discussed below. We affirm. FACTS. Defendant does not challenge the sufficiency of the evidence. Viewed in a light most favorable to the verdict, State v. Crawford , 32 S.W.3d 201, 204 (Mo.App. 2000), the evidence reveals that Defendant was at his residence watching television during the early morning hours of April 4, 1999, when he received a visitor, Michael Hinkle ("Hinkle"). Defendant and Hinkle had known each other approximately six years and Hinkle was a frequent visitor at Defendant's residence. According to Defendant, Hinkle asked Defendant if he had any marijuana to smoke and Defendant told Hinkle that he did not. Hinkle then asked Defendant to go with him and get some marijuana. Defendant declined and Hinkle became agitated. At that point, according to Defendant, Hinkle began trashing Defendant's home by destroying lights and windows with a club and slashing Defendant's waterbed. Defendant sat in a chair during much of Hinkle's tirade, although Defendant claims that on at least one occasion Hinkle physically assaulted him by punching him in the eye and kicking him in the kidneys.
Statutory references are to RSMo 1994, unless otherwise noted.
We use the victim's last name only for the purpose of this opinion, we mean no disrespect.
Eventually, Hinkle completed the trashing of Defendant's residence. Then, according to Defendant, Hinkle told Defendant, "I'm going to finish the job and I'm going to kill you," and starting walking towards a closet that Defendant said contained two .22 caliber rifles and a loaded .12 gauge shotgun. Defendant, who was seated in his chair, pulled out a .9 millimeter Ruger pistol, got up, walked over to Hinkle, and shot him in the back of the head from a range of approximately six inches.
Afterwards, Defendant dragged Hinkle from the living room to the bathroom and placed him in the bathtub. Defendant also used numerous rags in an attempt to clean up blood in the living room and bathroom. Defendant placed these rags in a burn barrel behind his house. While Defendant was in his yard, Arvil Harley ("Harley") pulled into the driveway and asked Defendant about Hinkle, to which Defendant replied that "[Hinkle] was gone." However, Defendant did not tell Harley that Hinkle had been shot, nor did he ask Harley to call the police. Defendant then walked to his mother's house, which was located a quarter-mile away from his residence. Defendant went inside and told his step-father, Billy Luten ("Luten"), that he had shot Hinkle. Luten asked Defendant whether he had called the police or an ambulance and Defendant responded that he had not. Luten told Defendant to call them, but Defendant never did. Luten then went to the First Assembly of God Church to tell Defendant's mother what had happened.
During cross-examination, Defendant admitted that there were two neighbors within closer proximity of his residence than his mother's house.
At the church, Pastor Donald Dement ("Dement") was asked by Defendant's aunt to go to Defendant's residence because there had been a shooting. Upon arriving at Defendant's house, Dement found the door to be locked and he was unable to gain entry into the house. Eventually, Defendant appeared at the residence and unlocked the door. By that time, several other people had arrived at Defendant's home. When Dement and others entered the house, they found Hinkle dead in the bathtub.
Law enforcement officials were eventually notified and Deputy Chuck Helton ("Dep. Helton") arrived at Defendant's home about two hours after the shooting, between 1:30 and 2:00 p.m. Dep. Helton was the first law enforcement official to arrive at Defendant's home. Dep. Helton entered the home, spoke with Larry Warren, a paramedic, and went to the bathroom and observed Hinkle lying in the bathtub. Dep. Helton then secured the premises by "putting up sheriff's tape and not letting anyone back inside the residence." He then made a search of the residence. He found a .9 millimeter pistol on a chair in the living room and a shell casing at the doorway of a closet in the vicinity of the living room. About midway through his search Dep. Helton noticed that the door to the closet was open and looked inside the closet with the aid of a flashlight, but did not enter into the closet. Dep. Helton testified that he did not see any firearms in the closet. Shortly thereafter, at approximately 2:06 p.m. Deputy Brian Young ("Dep. Young") entered the crime scene. By this time Dep. Helton, Deputy Don Ivy, and Tony Cole, the Iron County Coroner, were also present. Dep. Young testified that at about 2:30 p.m. he physically entered into the closet on his hands and knees. His way was illuminated through the use of a "MAG light three cell flashlight." He found no weapons in the closet. The officers then seized the shell casing and the pistol. Several hours later, law enforcement officers obtained a search warrant to search Defendant's residence and collected further evidence, including carpet and blood samples.
Later, Dep. Young measured the closet and found it to have measurements of 4 feet 3 1/2 inches by 3 feet 3/38 inches.
Defendant was charged by the State with first degree murder and armed criminal action. At Defendant's trial, the above events were related. Defendant testified in his defense and claimed that he shot Hinkle in self-defense. Defendant also presented witnesses who testified that they had removed the two rifles and shotgun from the closet after the police searched the house. However, in rebuttal, the State presented testimony from Joan Hinkle, the victim's grandmother, who testified that Defendant had told her a week to ten days before the shooting that all guns except for the .9 millimeter pistol had been removed from his residence.
The jury was advised by their instructions that they could find Defendant guilty of murder in the first degree or murder in the second degree. The trial court refused Defendant's request to submit a jury instruction on voluntary manslaughter. However, the trial court did instruct the jury on self-defense. The jury returned a verdict finding Defendant guilty of first-degree murder and armed criminal action. DISCUSSION AND DECISION.
I.
In his first point on appeal, Defendant alleges, in pertinent part:
The trial court erred in allowing the trial testimony of [Dep. Helton] and [Dep. Young] concerning their observations made and the admission at trial of evidence discovered during the warrantless search of [Defendant's] home, including the examination of the interior of a closet located in said home and the officers' conclusion that no weapons were present in said closet, where said admission of testimony and evidence was allowed by the trial court over Defendant's objection. . . .
Defendant claims that the officers' search and their observations violated his constitutional rights, and that any exigent circumstances that existed upon their entering the house had terminated by the time of the search.
Defendant concedes in his brief that the original entry of Dep. Helton into Defendant's residence was in response to an emergency call and therefore falls within two exceptions to the search warrant requirement, exigent circumstances and the plain view exception. See State v. Johnson , 957 S.W.2d 734, 742-43 (Mo.banc 1997). However, Defendant claims that the more thorough search of Defendant's house by both Dep. Helton and Dep. Young occurred after the residence was secured. At that point, Defendant maintains exigent circumstances had ceased and a search warrant was necessary. We disagree.
In two recent cases, this court has discussed what a police officer may lawfully do when entering one's residence in an emergency situation:
We hold that when a law enforcement officer enters private premises in response to a call for help and thereby comes upon what reasonably appears to be the scene of a crime, and secures the crime scene from persons other than law enforcement officers by appropriate means, all property within the crime scene in plain view which the officer has probable cause to associate with criminal activity is thereby lawfully seized within the meaning of the fourth amendment [of the United States Constitution]. Officers arriving at the crime scene thereafter and while it is still secured can examine and remove property in plain view without a search warrant.
State v. Tidwell , 888 S.W.2d 736, 742 (Mo.App. 1994) (quoting State v. Jolley , 321 S.E.2d 883, 886 (1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1751, 84 L.Ed.2d 816 (1985)); State v. Taylor , 857 S.W.2d 482, 486 (Mo.App. 1993).
Saliently, the Supreme Court of Missouri has also held that "[t]he possibility of another victim or perpetrators in a house are sufficient exigencies to permit the police to undertake a cursory search of those places in the dwelling in which a body may be found or persons may hide." Johnson , 957 S.W.2d at 744 (approving of seizure of a shotgun found in closet during the course of warrantless search made by police looking for other victims).
Applying these standards to the particular circumstances of the present case, we find that both Dep. Helton and Dep. Young were acting within their authority in responding to a call relating to a homicide. Their respective testimonies at trial, regarding what each did and did not see, were all matters that fell under the exigent circumstances and plain view exceptions recognized by case law.
As best we glean from the record, the searches by Dep. Helton, including the one conducted with Dep. Young, were undertaken within a short span of time after Dep. Helton arrived at the crime scene. These searches were completed rapidly. Given the exigent circumstances existing, each officer was within his right to peruse the crime scene looking either for additional victims or other perpetrators, together with any other weapons that may have been easily accessible to any perpetrator. See Tidwell , 888 S.W.2d at 740; Johnson , 957 S.W.2d at 744 n. 1.
Even assuming that receiving of the testimony of Dep. Young was erroneous, we hold that under the "inevitable discovery" doctrine, the observations of Dep. Young would have been discovered through other lawful means, especially considering that a search warrant was lawfully obtained only hours after the initial search. Nix v. Williams , 467 U.S. 431, 445, 104 S.Ct. 2501, 2510, 81 L.Ed.2d 377 (1984); State v. Jackson , 756 S.W.2d 620, 621 (Mo.App. 1988); see also State v. Smith , 735 S.W.2d 65, 69 (Mo.App. 1987). Point denied. II. In his second point, Defendant posits trial court error in refusing to submit Defendant's requested instruction of voluntary manslaughter to the jury for consideration. Defendant claims that the evidence at trial supported an instruction on voluntary manslaughter and failure to instruct the jury "substantially impaired his right to a fair trial."
We need not address Defendant's second point, however. The State has correctly pointed out it is well-established law that when a jury is given the option to convict a defendant of first degree and second degree murder, and opts to convict on first degree murder, then there is no reasonable basis to suggest that a jury would convict on manslaughter were it given the opportunity. State v. Winfield , 5 S.W.3d 505, 513 (Mo. banc 1999); State v. Barnett , 980 S.W.2d 297, 305-06 (Mo.banc 1998); State v. Smith , 944 S.W.2d 901, 918-19 (Mo.banc 1997). Defendant has requested this Court to revisit the ruling in Winfield , however, we decline to do so. Point denied. III. In his third point, Defendant asseverates the trial court erred in "refusing the offer of Dr. Terry Martinez as an expert at trial and in declaring him not an expert in the presence of the jury," because Defendant maintains he laid a proper foundation for his testimony. Defendant claims that the limitations placed on Dr. Martinez's ("Dr. Martinez") testimony and rendering of an expert opinion did not allow the Defendant to adequately present his defense and denied his right to a fair trial.
At trial, Defendant called Dr. Martinez to the stand and asked him several questions regarding his extensive education and background. Defendant then offered Dr. Martinez "as an expert for testimony here today." The State voir dired Dr. Martinez and afterward, objected to the offer of Dr. Martinez as an expert witness. The trial court sustained the State's objection, but commented that it would "take it with each question and proceed please." Defendant then questioned Dr. Martinez regarding the effects of a drug, Butalbital, that was found in Hinkle's bloodstream. Dr. Martinez was allowed to elaborate on the general effects of Butalbital based on his observations and experience. See infra. However, the trial court did not allow Dr. Martinez to comment on the specific level of Butalbital found in Hinkle. In one exchange the trial court stated the following in open court, "The court is not quarreling with what [Defense attorney] just stated and the way [he has] formed [his] question. . . . The court is not saying that [Dr. Martinez] is not qualified at all, if [Defense attorney] will rephrase [his] question please."
Dr. Martinez was not a physician.
"The test of an expert's qualification is whether the expert has knowledge from education or experience which will aid the trier of fact." State v. Scott , 996 S.W.2d 745, 748 (Mo.App. 1999). The matter of qualifying an expert at trial rests primarily in the sound discretion of the trial court. Id.; State v. Hoff , 904 S.W.2d 56, 58 (Mo.App. 1995). The exercise of the trial court's discretion will be sustained by this Court unless Defendant can demonstrate that there has been an abuse of discretion. State v. Newcomb , 934 S.W.2d 608, 611 (Mo.App. 1996). A trial court is said to have abused its discretion when its ruling goes against the logic of the circumstances before the trial court and "is so arbitrary and unreasonable as to shock the sense of justice and indicate careful consideration; if reasonable persons can differ about the propriety of the actions taken by the trial court, then it cannot be said that the trial court abused its discretion." State v. Mathews , 33 S.W.3d 658, 660 (Mo.App. 2000) (quoting State v. Brown , 939 S.W.2d 882, 883-84 (Mo.banc 1997)).
In our review of the record, we do not find that Defendant was denied the offer of Dr. Martinez as an expert. While the trial court did limit the testimony of Dr. Martinez, Defendant's contention that the trial court expressly declared to the jury that Dr. Martinez was not an expert is unsupported by the record. As previously set out, during one objection the trial court stated to the jury that it was not commenting on whether Dr. Martinez was "qualified." Furthermore, Dr. Martinez was allowed to testify that he had observed individuals who exhibited concentration levels of Butalbital in the "range of 6.3," similar to that level found in the victim during his autopsy. Dr. Martinez was allowed to opine that:
Such people are at a level where they would appear to be intoxicated or inebriated similar to the intoxication you would see from alcohol. . . . Such persons would have difficulty with fine motor movement. They would not be asleep, they would not be comatose certainly, they would be able to move about, they would be able to function.
They would have a loss of filtering in their central nervous system so that they [sic] normal constraints would not be there. The process is called disinhibition. Where a person the first thing that runs through their mind comes out their mouth. They may use swear words for example, where they normally would not do that. I've see [sic] them behave in an aggressive manner similar to intoxication where they were upset. I've seen fighting behavior at that level. . . .
Indeed, during closing arguments at trial, Defendant's counsel made the following, pertinent remarks, regarding Dr. Martinez's testimony:
Let's move on to the Butalbital that was found in his system, in Hinkle's system. . . . I want you to look, and you have a right to do this, you just look at his credentials. It's been introduced into evidence. The honors that he's won, what he's done in his field, how long he's been in practice and his curriculum vitae. . . . This man is a renowned expert and he's used to working with this subject. . . . Dr. Martinez worked with particular people on this particular drug. Observed behavior by these people on this drug. He's been involved with over 30,000 types of patients because he is a clinical toxicologist. He has seen the effects, not just on paper. And he's researched, not just one little page of research but he brought the books that he researched. And what his findings were and what his conclusions were is that this causes aggressive behavior in this amount, that it's like an alcohol intoxication. You've heard him testify and that's what happened here. (emphasis added).
Defendant has failed to demonstrate to this Court that he suffered prejudice from the trial court's conduct regarding Dr. Martinez's testimony; nor are we persuaded that the trial court abused its discretion in limiting the expert testimony of Dr. Martinez. Newcomb , 934 S.W.2d at 611. Point denied. IV. Defendant contends in his fourth point on appeal that the trial court erred in refusing to allow Defendant to present evidence of specific acts of violence committed by Hinkle against a third person by the name of Steven Craigmiles ("Craigmiles"). Defendant maintains that such evidence was admissible to show that Defendant reasonably feared Hinkle and was essential to Defendant's theory of self-defense presented at trial.
At trial, during an in-camera hearing, Defendant presented testimony from Craigmiles and himself. Craigmiles testified about an incident that occurred approximately a year before Defendant shot Hinkle in which Hinkle punched Craigmiles in the face three times without provocation. According to Craigmiles, Defendant was angry because a relative of Craigmiles had made a derogatory remark to Hinkle and Hinkle thought that he, Craigmiles, was responsible for the remark. Defendant then testified that Hinkle had told him about his encounter with Craigmiles, bragging that he had "kicked [Craigmiles's] butt." Defendant testified that because of this incident he was fearful of Hinkle.
The trial court sustained the State's objection to testimony of the specific act of violence against Craigmiles. However, the trial court stated that it would permit evidence of the victim's reputation for violence in the community. Later, at trial, Defendant reiterated its offer of proof of Craigmiles' testimony which was again rejected by the trial court.
In support of his argument, Defendant refers this Court to State v. Waller , 816 S.W.2d 212 (Mo.banc 1991), which sets out, in part:
Where justification is an issue in a criminal case, the trial court may permit a defendant to introduce evidence of the victim's prior specific acts of violence of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime with which the defendant is charged.
To the extent that this Court has changed the rule, it vests new discretion in the trial court. In application of the new rule, courts must exercise caution. The defendant must lay a proper foundation before the evidence can be admitted. Other competent evidence must have raised the question of self-defense. The defendant must show that he was aware of the specific act or acts of violence. The incidents must not be too remote in time and must be of quality such as to be capable of contributing to the defendant's fear of the victim. Where acts are too remote in time or of quality substantially different from the act that the defendant accuses the victim of committing, the trial court may decline to admit the proof into evidence.
Id . at 216 (citations omitted).
Defendant argues that the trial court's refusal to allow evidence of the specific act of violence against Craigmiles by Hinkle "substantially impaired [Defendant's] right to a fair trial and due process of law bestowed upon him by the United States and Missouri constitutions." We disagree.
"Under the Waller rule, a trial court is not required to admit all evidence proffered about a victim's prior specific acts of violence." State v. Howard , 896 S.W.2d 471, 485 (Mo.App. 1995). "To the contrary, Waller says '[t]o the extent that this Court has changed the rule, it vests new discretion in the trial court.'" Id . (quoting Waller , 816 S.W.2d at 216).
Defendant testified at the hearing that his only knowledge of Hinkle's assault of Craigmiles came directly from Hinkle, was brief, and provided little details of the assault. We do not find that Defendant demonstrated that he was sufficiently aware of the specific act of violence against Craigmiles by Hinkle. Nor was it of a sufficient quality to reasonably show that Defendant had reason to fear Hinkle, because the violence was not directed against Defendant. See State v. Pipes , 923 S.W.2d 349, 354 (Mo.App. 1996); see also Waller , 816 S.W.2d at 216. The trial court did not err in sustaining the State's objection to the proposed evidence. Point denied. V.In his fifth point on appeal, Defendant alleges trial court error in allowing the State to present testimony from Dr. Russell Deidiker ("Dr. Deidiker"), a physician trained in pathology, regarding a bullet pattern comparison "in determining the distance between [Defendant] and [Hinkle] at the time of the shooting. . . ." Defendant maintains that Dr. Deidiker's testimony was based upon tests conducted by Mr. Carl Rothove, a criminalist with the Missouri State Highway Patrol crime laboratory, under different conditions to those testified to by Dr. Deidiker.
Defendant further claims the trial court erred in allowing Dr. Deidiker to testify about the specific effects of Butalbital on an individual. He maintains that Dr. Deidiker was not qualified to reach any conclusions concerning the effects of Butalbital. Dr. Deidiker specifically testified, over Defendant's objection, that the effects of Butalbital, a drug found in Hinkle's system, would have caused sedation and drowsiness rather than excited or violent behavior.
Defendant's fifth point on appeal actually raises two separate points of trial court error. "Separate claims of error should be stated in separate points." State v. Craig, 33 S.W.3d 597, 601 n. 1 (Mo.App. 2000); Shoemaker v. Ekunno, 960 S.W.2d 527, 531 (Mo.App. 1998). Although not in compliance with Rule 84.04(d), we gratuitously review Defendant's point to determine whether there has been a showing of manifest prejudice affecting his substantial rights. See State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo.banc 1989).
At trial, Dr. Deidiker testified that he conducted an autopsy upon Hinkle following the shooting. He then testified about his review of Mr. Rothove's bullet patterning test results and his opinion that Hinkle was shot by Defendant from a distance of four to eight inches.
Mr. Rothove performed various tests firing the pistol at numerous targets to show varying patterns of burned and unburned gunpowder that resulted when the pistol was discharged at different distances and angles.
As previously stated, the matter of qualifying and allowing the testimony of an expert witness at trial rests primarily in the sound discretion of the trial court. Scott , 996 S.W.2d at 748. The decision of the trial court will not be disturbed by this Court unless we find that there has been an abuse of discretion. Newcomb , 934 S.W.2d at 611.
We do not find that the trial court abused its discretion in allowing Dr. Deidiker to testify regarding the bullet patterning results. Dr. Deidiker testified that he was a physician trained in anatomical, clinical, and forensic pathology, and that he had performed between 600 and 700 autopsies. His testimony regarding the bullet-patterning test was based on his previous training and experience, notwithstanding the fact that it was partially based on his review of Mr. Rothove's records. See State v. Kennedy , 842 S.W.2d 937, 940 (Mo.App. 1992) (pathologist testifying that gun had been fired 12 to 18 inches from victim's temple); State v. Danikas , 11 S.W.3d 782, 786 (Mo.App. 1999) (forensic pathologist concluded "fatal shot was fired either from over two feet away or into an intermediate object, such as a pillow."); see also State v. Bell , 62 S.W.3d 84, 92 (Mo.App. 2001).
Likewise, Dr. Deidiker appeared qualified to render an opinion regarding the effects of Butalbital on a person. In addition to being a medical doctor, Dr. Deidiker testified that he was familiar with literature regarding Butalbital and its effects on people. Even assuming, arguendo, that this testimony should have been excluded, it was cumulative to that of Dr. Christopher Long, a forensic toxicologist, who testified that Butalbital acts as a sedative.
We do not find that Defendant suffered manifest prejudice affecting his substantial rights by the trial court permitting Dr. Deidiker's testimony regarding bullet patterning comparison or the effects of Butalbital on an individual. See State v. Maynard , 954 S.W.2d 624, 633 (Mo.App. 1997). Point denied. VI.
Lastly, Defendant asserts in his sixth point on appeal that the trial court erred in failing to grant his motion for new trial based upon new testimony from Mr. Tony Cole, the Iron County Coroner and a witness at the trial, regarding his erroneous testimony at trial relating to a prescription bottle.
At trial, Mr. Cole testified that he retrieved a bottle of prescription medicine from Defendant's home bearing the name of Mr. Kenneth Rutter, a relative of Defendant. From this testimony, the State attempted to make an inference at trial that Defendant had illegally obtained prescription medicine in his relative's name. Later, at a hearing on Defendant's motion for new trial, Mr. Cole testified that he believed he erroneously stated that Mr. Kenneth Rutter's name was on the prescription bottle at trial when, in fact, he now believed that Defendant's name was on the prescription bottle.
A trial court is afforded broad discretion in its determination of whether or not to grant a motion for new trial, and reversal of its decision on appeal is warranted only if it is clear that there has been an abuse of discretion. State v. Ginn , 31 S.W.3d 454, 457 (Mo.App. 2000). The granting of a new trial on the basis of newly discovered evidence is not favored. State v. Magee , 911 S.W.2d 307, 312 (Mo.App. 1995). In this connection, the Supreme Court of Missouri has stated:
To receive a new trial based on newly discovered evidence the following must be established: (1) the evidence has come to the knowledge of the defendant since the trial; (2) it was not owing to want of due diligence that it was not discovered sooner; (3) the evidence is so material that it would probably produce a different result on a new trial; and (4) it is not cumulative only or merely impeaching the credit of the witness.
State v. Leitner , 945 S.W.2d 565, 574 (Mo.App. 1997) (quoting State v. Amrine , 741 S.W.2d 665, 674 (Mo.banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988)). Defendant argues that Mr. Cole's erroneous testimony "was critical to the State's case and played an instrumental role in the jury's arriving at a guilty verdict," because the State argued at trial that Defendant illegally obtained a false prescription in the name of his dead relative. Defendant, however, fails to recognize that Mr. Cole's testimony at the motion for new trial was not newly discovered evidence, but rather it merely impeached the credibility of his previous testimony. "Impeachment evidence is evidence which challenges a witness's credibility." State v. Gatewood , 965 S.W.2d 852, 858 (Mo.App. 1998). Furthermore, we do not find that this evidence would have produced a different result at a new trial.
This is because Defendant effectively cross-examined Mr. Cole at trial and Defendant testified at trial that he did not illegally obtain a prescription using the name of his dead relative.
The evidence Defendant presented at his motion for new trial constituted impeachment evidence and was merely cumulative to testimony presented at trial. See id . at 859. As such, Defendant failed to establish that he was entitled to a new trial and the trial court did not abuse its discretion in denying Defendant's motion for a new trial. Id.; Leitner , 945 S.W.2d at 574. Point denied.
The judgment is affirmed.
Shrum, P.J. and Montgomery, J. concur.