State v. Arney

731 S.W.2d 36, 1987 Mo. App. LEXIS 4170
CourtMissouri Court of Appeals
DecidedJune 1, 1987
DocketNo. 14943
StatusPublished
Cited by9 cases

This text of 731 S.W.2d 36 (State v. Arney) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Arney, 731 S.W.2d 36, 1987 Mo. App. LEXIS 4170 (Mo. Ct. App. 1987).

Opinion

MAUS, Judge.

A jury found the defendant guilty of three counts of assault, three counts of armed criminal action and one count of unlawful use of a weapon. As a prior offender, defendant was sentenced to life imprisonment on one count for the class A felony of assault and on each of the three armed criminal action counts; 15 years on two counts for the class B felony of assault; and 5 years on the class D felony of unlawful use of a weapon, all to be served concurrently. Defendant offers three points on appeal.

The following is a summary of the evidence viewed favorably to the verdict. State v. Esrock, 660 S.W.2d 222 (Mo.App.1983); State v. Cannady, 660 S.W.2d 33 (Mo.App.1983). On November 14, 1984, Sheriff John Giles of Crawford County went to the residence of Dorothy Amey and served an ex parte order of protection upon her former husband, the defendant. The next morning Dorothy Amey informed the sheriff the defendant would not leave the home. Mrs. Amey waited at the sheriff’s office while Sheriff Giles, accompanied by Deputy Sheriff Leon Stephens, returned to the residence. They knocked on the door. The door held a large pane of glass with a curtain behind it. Defendant came to the door and pulled the curtain back but would not open the door. The sheriff informed defendant that he was violating the court order and would have to leave the premises. Defendant replied he would not leave and no one was going to make him leave. Thereupon he pointed a sawed-off shotgun at the sheriff and deputy. Defendant continued to point the shotgun at the officers as they backed off the porch and left.

Sheriff Giles proceeded to the prosecuting attorney’s office. A complaint for displaying a dangerous and deadly weapon was prepared. A warrant was issued. With four highway patrolmen, two deputy sheriffs and the chief of police of Steelville, Sheriff Giles returned to the residence. The testimony of all eight of these law enforcement officers is consistent and corroborative with the exception of some minor details.

The law enforcement officers surrounded the residence. Sheriff Giles was on the east side of the house where the front door was located. He was standing at the side of a highway patrol car which was about 60 feet from the house. Using the public address system of the highway patrol car, Sheriff Giles informed defendant he had a felony arrest warrant and called for the defendant to come out. Some of the officers heard yelling from inside. Moments later a shotgun emerged from the front door and defendant shot at the patrol car shielding Sheriff Giles and Highway Patrolman Hannan. This was followed by a rifle shot aimed in the same direction. Sheriff Giles then ordered tear gas to be fired into the house by the highway patrolman on the north side of the house. Sergeant Wilson fired three canisters of tear gas, two of which went through a kitchen window into the house. Moments later Highway Patrolman Wilhoit saw a curtain move in another kitchen window and turned his head to warn other troopers. As he turned his head back he heard a rifle shot and felt the shot hit his arm. This was followed by another rifle shot. Highway Patrolmen Wilhoit and Sturdevant then returned fire, both using .12 gauge shotguns. They fired into the kitchen window where the rifle shots had come from and where Sturdevant had seen a rifle barrel. Highway Patrolman Wilhoit was pulled to safety. Moments later defendant crawled from the house out the front door on the east side of the house. The defendant and Wilhoit were taken to a hospital. The other officers searched the house and found a .12 [38]*38gauge shotgun under a north side window and two .22 caliber rifles nearby. However, only one expended shotgun shell and one expended .22 shell were found.

Defendant admitted he was the only person in the house at the time of the shooting. He acknowledged hearing the sheriff’s direction for him to come out. He testified, however, that the officers began shooting at him first and he shot back in fear of his own safety. He claimed he shot only the shotgun and never used the rifle and only shot out the front door one time. Defendant was twice asked if he had time after hearing the sheriff to come out of the house before the shooting began. Both times he answered, “Yes.”

Defendant was shot through the eye during the fray. He suffered a stroke and a consequent speech impediment but was not otherwise brain damaged. He had been undergoing therapy and testified with the aid of a speech therapist.

The defendant’s first contention is that the court committed reversible error in admitting evidence that two of his past convictions for assault involved shooting a police officer. The following is the background for that contention. The defendant’s testimony on direct examination included the following.

Q. What happened after the Sheriff told you to come out of the house?
A. I said no.
Q. What happened after that?
A. He started shooting.
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Q. How many shots did you hear?
A. Three or four before I fired.
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Q. Let me understand, you heard three or four shots and then you returned fire. How many times did you shoot?
A. Once.
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Q. Why did you fire?
A. Because I was scared.
INTERPRETER MULLEN: Because I was scared.
Q. Were you afraid for your life?
A. Yeah.
Q. Did you think you were going to be killed?
A. Yeah.
[[Image here]]
Q. And you shot at these officers that were out here didn’t you?
A. No, I didn’t see no officers. I just shot.
INTERPRETER MULLEN: No, I didn’t see no officers. I just shot.

On cross-examination the state propounded the following question to the defendant.

Q. Mr. Amey, I won’t ask you about all your previous convictions but I will ask you about two. Isn’t it trae, Mr. Amey, that on June 18th, 1962 in Madison County, Illinois, you pled guilty to the crime of aggravated assault for shooting a police officer?

The defendant objected in that the question improperly included the occupation of the person that was assaulted. A request for a mistrial was overruled. The question was emphasized by the fact it had to be posed several times before the defendant was able to answer it.

Then later, the state asked the defendant the following question:

Q. Now Mr. Amey, on December 29th, 1975 in Crawford County, Missouri, did you plead guilty or were found guilty of the crime of assault with a certain loaded rifle, on a police officer?

The defendant’s objection upon the basis previously stated was overruled.

The state contends the evidence concerning the two convictions was admissible to impeach the defendant. The applicable rule is stated:

Section 491.050 RSMo 1978 permits the prosecutor, when the defendant testifies, to prove any prior convictions

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Cite This Page — Counsel Stack

Bluebook (online)
731 S.W.2d 36, 1987 Mo. App. LEXIS 4170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-arney-moctapp-1987.