State v. Bounds

716 S.W.2d 458, 1986 Mo. App. LEXIS 4550
Missouri Court of Appeals·Decided August 19, 1986·No. No. 49857·Published·Cited by 2 cases

Opinion

GARY M. GAERTNER, Judge.

Defendant, Jack Lee Bounds, appeals from his conviction on one count of capital murder, § 565.001 RSMo (1978), and one count of first degree assault, § 565.050 RSMo (1978). Defendant received consecutive prison sentences of fifty years without the possibility of probation or parole for the capital murder charge and thirty years for the first degree assault charge.

On appeal, defendant contends that the trial court erred in: (1) excluding expert testimony on the path of the fatal shot to Richard Stiteler; (2) overruling defendant’s motion to suppress and admitting into evidence the shotgun sleeve and shells which were seized from defendant’s automobile; and (3) denying defendant’s motion for a new trial on the basis of newly discovered evidence. Finding each of these points without merit, we affirm.

Defendant does not challenge the sufficiency of the evidence. A review of the evidence in a light most favorable to the verdict establishes that on May 23, 1983, at approximately 3:00 a.m., defendant entered the home of his former wife, Ethel Stiteler, and went into the bedroom where she was sleeping with her current husband, Richard Stiteler. After a brief conversation with Ethel, defendant shot Richard Stiteler twice with a shotgun, one shot to his body and the second to his head. As those shots were fired, Ethel left the bed and ran into a closet. Defendant fired two shots at her through the closet doors, one shot hitting her in the left shoulder.

After leaving his weapon at the scene of the shooting, defendant drove to his daughter’s house. Defendant attempted to get a gun from his son-in-law, Fred Smith, and confessed to shooting Richard and Ethel. Defendant stated that he wanted the gun so that he could provoke the police to shoot him when he was arrested. Smith refused to give defendant a weapon and defendant drove away. Smith then called the home of Richard and Ethel Stiteler and told the police at the scene that defendant had just left their house and, after describing defendant’s vehicle, stated that defendant could be headed toward the police station for a shoot-out.

After the shooting, police began transmitting bulletins throughout the surrounding area linking defendant to the shooting and accurately identifying the year, make and color of defendant’s vehicle, and its Arkansas license plates. Subsequent bulletins stated that defendant could be headed toward the police station for a shoot-out. After receiving these transmissions, Officer Maret, a St. Charles County Sheriff’s Department deputy, observed defendant driving a vehicle matching the description. Officer Maret stopped defendant and while exiting his vehicle, defendant stated that he had no guns and asked the officer to shoot him. Defendant was placed under arrest and, after defendant had been removed from the scene, Officer Maret conducted a search of defendant’s vehicle. In the trunk of the car, the officer discovered a shotgun sleeve and a paper bag containing shotgun shells.

Defendant waived his right to a jury trial, and the case was tried to the court. After hearing all the evidence, the court convicted defendant of murdering Richard Stiteler and assaulting Ethel Stiteler. Defendant filed a motion for new trial which the trial court denied. Defendant then appealed to this court.

[460] In his first point on appeal, defendant contends the trial court erred in preventing defendant from eliciting the expert opinion of Dr. George Gantner, a forensic pathologist, as to whether Richard Stiteler was shot in the front or the back of the head. The trial court sustained the state’s objection to this question on the ground that the doctor was unable to form an opinion to a reasonable degree of medical certainty.

Questions as to the admissibility of prof-erred expert testimony in a criminal proceeding are within the sound discretion of the trial court. State v. Hensley, 655 S.W.2d 810, 811 (Mo.App.1983). Our review is limited to determining whether that discretion has been abused and, if so, whether defendant has thereby been prejudiced. State v. Jones, 518 S.W.2d 304, 311 (Mo.App.1975).

In the instant case, the record below shows no abuse of discretion. Defendant raises this point on appeal because the trial court sustained the state’s objection when defense counsel asked the following question during redirect examination of Dr. Gantner: “[C]an you tell me whether or not you have an opinion as to whether or not ... this shot came from the front or the rear?” The trial transcript shows, however, that during cross-examination of Dr. Gantner this precise question had been asked by the prosecuting attorney and answered by the doctor:

[Prosecuting attorney] From your viewing of the [evidence] could you indicate to the court, could you tell whether or not — could you give to a reasonable medical certainty whether or not the shot was from the front or the back?
[Dr. Gantner] No, I couldn’t.

Given that the answer to defendant’s question was already in evidence, we can discern no prejudice to defendant resulting from the trial court’s ruling on the state’s objection. Accordingly, this point is denied.

In his second point on appeal, defendant argues that the trial court erred in overruling defendant’s motion to suppress and in admitting into evidence the shotgun sleeve and shells seized during a warrant-less search of defendant’s automobile. Defendant contends that the search was conducted without a warrant and without probable cause in violation of defendant’s right to be free from unreasonable searches and seizures.

As a general rule, warrantless searches violate the fourth amendment. The United States Supreme Court has, however, created several exceptions to this general rule, including the “automobile” exception. Under this exception, automobiles and other conveyances are distinquished from fixed premises because it would be impracticable to require a warrant for a vehicle which can be easily moved out of the jurisdiction where the warrant is sought. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970). Hence, a warrantless search of an automobile is justified where there is probable cause to believe that the vehicle contains weapons, contraband or evidence of a crime. State v. Berkwit, 689 S.W.2d 763, 767 (Mo.App.1985). Once the vehicle has been lawfully stopped and the police officer reasonably suspects such items, a subsequent search of every part of the vehicle is valid. State v. Ferguson, 678 S.W.2d 873, 876 (Mo.App.1984).

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State v. Bounds, 716 S.W.2d 458, 1986 Mo. App. LEXIS 4550 (Mo. Ct. App. 1986).

716 S.W.2d 458 (State v. Bounds) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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