State v. Knapp

534 S.W.2d 465, 1975 Mo. App. LEXIS 2207
Missouri Court of Appeals·Decided December 23, 1975·No. No. 36504·Published·Cited by 9 cases

Opinion

GUNN, Judge.

Defendant appeals from his conviction of murder in the first degree for which he received a sentence of life imprisonment. Defendant alleges reversal of his conviction on three grounds: 1) that the trial court abused its discretion-in refusing to grant a delay in the trial to allow the defendant to present a material witness; 2) that the trial court erred in refusing to allow inquiry of the jury panel during voir dire examination whether they would follow the court’s anticipated instruction concerning the material elements of the offense charged; and 3) that the trial court erred in overruling an objection to argument of the prosecutor alleged to be highly inflammatory. For the reasons which follow, we affirm the judgment.

The sufficiency of the evidence is not challenged. Defendant was working the night shift at a small machine factory in Crestwood, Missouri. At approximately 6:00 p. m. he was apparently reproached by his foreman, Bill Pappas, about his work at his particular machine. Defendant became mordant and stalked off his job. Mr. Pap-pas notified the plant supervisor of the incident, and near 9:00 p.' m. defendant’s time card was removed, an apparent indication of disciplinary action against defendant. Defendant was discovered about 10:00 p. m. by a fellow employee at a nearby tavern and advised of the time card removal. At approximately 11:00 p. m., defendant returned to the plant with a revolver, sought out Bill Pappas and proceeded to shoot him three times, inflicting mortal wounds. The incident was witnessed by several persons who testified at trial that they observed the defendant shoot Mr. Pappas and then unhurriedly leave the plant. Defendant was arrested early the next morning in Troy, Illinois. When approached by Troy police, defendant readily acknowledged killing Mr. Pappas; the revolver used to kill Mr. Pap-pas was in defendant’s possession.

[467] On November 9, 1973, defendant entered pleas of not guilty and not guilty by reason of mental disease or defect. Thereafter he was examined by two psychiatrists and given an electroencephalograph examination by another physician, resulting in defendant’s ultimate withdrawal of his plea of not guilty by reason of mental disease or defect, leaving only his plea of not guilty in effect.

After five continuances, three at defendant’s request, trial was set for April 1,1974. On April 1, defendant withdrew his plea of not guilty by reason of mental disease or defect. The case was then continued by the court to Wednesday, April 3, 1974 at which time the trial commenced. The State rested its case at approximately noon on Thursday, April 4. At the close of the State’s case defendant’s counsel made an oral motion for a recess to make possible the appearance of a psychologist for the defense. In his oral motion, defendant’s counsel stated that the psychologist, Dr. Allen Barclay, who had examined defendant on Tuesday, April 2, was in Florida and would not return to St. .Louis until 4:00 p. m. on Friday, April 5; that Dr. Barclay, based on some hypothetical information given him by defendant’s counsel, had indicated by telephone communication that the defendant may have been incapable of considering his actions coolly and fully. The trial court was advised that Dr. Barclay would not be available until at least 4:00 p. m. on Friday, April 5, or “possibly thereafter.” The trial court, after discussion with defendant’s counsel and hearing an offer of proof as to Dr. Barclay’s testimony, denied the request for recess. The defense produced no witnesses.

Defendant’s first point of error is that the trial court erred in overruling his motion for recess. The law concerning this issue is plentiful, positive and precise; the trial court is vested with broad discretion in ruling on motions for continuance and absent a palpable abuse of that discretion, refusal to grant a continuance — or, in this case, a somewhat indefinite recess — does not form a basis for reversal by an appellate court. State v. Reece, 505 S.W.2d 50 (Mo.1974); State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975); State v. Winters, 525 S.W.2d 417 (Mo.App.1975); State v. McDowell, 525 S.W.2d 444 (Mo.App.1975); State v. Bolden, 525 S.W.2d 625 (Mo.App. 1975). The defendant had ample opportunity to seek the advice of experts on defendant’s mental condition. And, indeed, defendant’s counsel did conduct a valiant and diligent search for and did obtain expert advice as to defendant’s mental condition, but, apparently none, but perhaps Dr. Barclay’s, was salutary for defendant’s purposes. Further, there was no assurance that Dr. Barclay would bear the desired report for the defendant. In any event, defendant had ample opportunity prior to trial during the period of continuances from November 9, 1973 to have obtained or preserved Dr. Barclay’s testimony. Denial of defendant’s request for a recess at the late date sought cannot be said to be an abuse of discretion. We acknowledge the persevering efforts of defendant’s counsel to obtain a satisfactory report for his client. The defendant had examinations by two psychiatrists, an electroencephalograph examination by a physician and an examination by a psychologist, in addition to Dr. Barclay — all apparently barren of fruit for defendant’s defense. The refusal of the trial court to grant one more thrust of the defensive foil was not unwarranted.

Defendant directs his second point of appeal to his attempt to make the following comment during the voir dire examination of the jury panel:

“What I say right now is not in any way to be considered by you to be binding or what the law is. I anticipate that the Court will instruct not only must you find that the defendant shot and killed the person involved or was responsible for this, but in Murder First Degree that he considered it coolly and fully before doing so.”

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State v. Knapp, 534 S.W.2d 465, 1975 Mo. App. LEXIS 2207 (Mo. Ct. App. 1975).

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