State v. Depriest

822 S.W.2d 488, 1991 Mo. App. LEXIS 1875, 1991 WL 259522
CourtMissouri Court of Appeals
DecidedDecember 12, 1991
DocketNos. 17017, 17410
StatusPublished
Cited by10 cases

This text of 822 S.W.2d 488 (State v. Depriest) 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. Depriest, 822 S.W.2d 488, 1991 Mo. App. LEXIS 1875, 1991 WL 259522 (Mo. Ct. App. 1991).

Opinion

MONTGOMERY, Judge.

Defendant, Timmy Lee Depriest, was convicted after jury trial of assault of a law enforcement officer in the first degree, in violation of § 565.081, RSMo Supp.1989, and armed criminal action, in violation of § 571.015 RSMo 1986.1 He was sentenced to twenty years’ imprisonment on the charge of assault and fifteen years’ imprisonment on the charge of armed criminal action, both to be served consecutively. Defendant filed a direct appeal from those convictions and a Rule 29.15 motion, Missouri Rules of Court (1991).2 After an evidentiary hearing the motion was denied and Defendant appealed from that denial. Pursuant to Rule 29.15(Z), the appeals have been consolidated.

Defendant claims error in four points relied on, with the first three relating to the criminal trial. None of Defendant’s points challenge the sufficiency of the evidence. We recite the facts in the light most favorable to the verdict and only as the evidence relates to Defendant’s points.

In late December 1989 officers of the Springfield Police Department were advised warrants were outstanding for the arrest of Defendant. In at least two briefing sessions, officers were given a police “flier” which displayed a photograph of Defendant, along with his description. Officers were also provided with several photographs of Defendant that recently had been taken by a surveillance camera at a local Sears store.

On December 28, 1989, Corporal Larry Robinson was on patrol in the downtown area of Springfield. He sighted a man who matched the description of Defendant. Upon sight of the patrol car, the suspect ran and Corporal Robinson gave chase in his patrol car into a nearby parking lot. Robinson jumped out of the patrol car as the suspect was scaling a retaining wall. Robinson yelled, “Halt, police, or I’ll shoot,” but the suspect climbed over the wall and fled down an adjoining alley. Robinson continued the chase on foot and called for back-up to assist in the apprehension.

After Robinson lost sight of the suspect, he guessed that the suspect had run into a nearby parking lot and was hiding behind a trash dumpster. As the officer squeezed between the dumpster and an adjacent building, the suspect raised up from behind the dumpster and shot Corporal Robinson in the shoulder from about five feet away. The officer radioed that he had been shot and then crawled around the comer to safety. He subsequently heard four more shots from behind the dumpster, and the suspect again took off running.

Defendant was apprehended and taken into custody after pursuit by several other police officers. Defendant was captured [490]*490with the gun, in his hand, used to shoot Corporal Robinson.

Later, Defendant was advised of his Miranda rights at the police station and invoked his right to remain silent. After-wards, Defendant asked Detective Coffman about Robinson’s condition and stated he was sorry he had shot the officer and hoped that Robinson “was all right.” Defendant told Detective Ijames that he was glad Robinson would be “all right,” and that he “just didn’t want to go back to prison.” The latter statement was admitted into evidence over Defendant’s objection.

Kelly King, a Sears employee, testified over Defendant’s objection that she monitored Defendant on a security camera in the Sears store on December 23, 1989. Photographs from the Sears security camera had been supplied to Springfield police officers during briefing sessions after December 23, 1989.

Defendant did not testify. His evidence consisted only of the testimony of a forensic-evidence technician who worked at the Springfield Police Department Crime Laboratory. The lab technician testified that while taking Defendant’s fingerprints, Defendant repeatedly stated he was very sorry that Corporal Robinson was shot and wished it had never happened. Defendant stated he was scared at the time.

Defendant filed a pro se Rule 29.15 motion for postconviction relief. The court appointed a public defender to represent Defendant and an amended motion was filed. After an evidentiary hearing, the court issued Findings of Fact and Conclusions of Law denying relief to Defendant.

Defendant states in his first point the trial court erred in admitting into evidence Defendant’s statement, “I just didn’t want to go back to prison,” and State’s Exhibit 14 characterized by Defendant as a “mugshot.” Defendant claims he was denied his right to a fair trial and due process of law guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 10 and 18(a) of the Missouri Constitution. He contends the statement raised the inference of prior convictions, admissible for impeachment purposes only if Defendant testified.

Defendant relies on cases which stand for general statements of law concerning a criminal defendant who testifies with prior convictions. State v. Shisler, 752 S.W.2d 447, 451 (Mo.App.1988), holds that when a criminal defendant testifies, the state may impeach him with his prior convictions. State v. Sanders, 634 S.W.2d 525, 527 (Mo.App.1982), teaches the state may not show details of the offense or use the convictions to suggest guilt of the offense presently charged. Defendant’s reliance on Shisler and Sanders is misplaced. Such cases do not answer the question before us.

“Evidence of a crime independent and unconnected with the crime charged is inadmissible unless it tends to establish motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the person charged.” State v. Sellers, 710 S.W.2d 398, 401 (Mo.App.1986). Defendant’s statement that he “just didn’t want to go back to prison” could be interpreted as evidence of a prior crime. Such a crime would be independent and unconnected with the charge of assaulting Corporal Robinson. However, the statement certainly does tend to establish Defendant’s intent.

A necessary element of the state’s case was evidence that Defendant “knowingly” attempted to cause serious injury to Corporal Robinson. § 565.081, RSMo Supp.1989. The only defense offered by Defendant was that he had no intent to cause serious physical injury to the officer. A jury could reasonably infer that Defendant intended to inflict or attempt to inflict serious physical injury on the officer to avoid apprehension and thus, a return to prison.

The facts in Sellers are strikingly similar to the instant case. There, appellant was charged with assault in the second degree, § 565.060 RSMo Supp.1984, and three other crimes. A state witness testified that during appellant’s apprehension he said he wasn’t “going to go back to jail.” The court determined that even though appel[491]*491lant’s statements “could be interpreted as evidence of prior crimes, the statements tended to prove that appellant ‘knowingly’ attempted to cause serious physical injury to another, a necessary element of the state’s case.” Id. at 400. The court concluded that appellant’s statements at the time of the offense were relevant to show his intent.

In State v. Mallett, 732 S.W.2d 527 (Mo.

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Bluebook (online)
822 S.W.2d 488, 1991 Mo. App. LEXIS 1875, 1991 WL 259522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-depriest-moctapp-1991.