State v. Mitchell

704 S.W.2d 278
CourtMissouri Court of Appeals
DecidedJanuary 31, 1986
DocketNo. 14046
StatusPublished

This text of 704 S.W.2d 278 (State v. Mitchell) 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. Mitchell, 704 S.W.2d 278 (Mo. Ct. App. 1986).

Opinion

CROW, Judge.

Ernest Dean Mitchell (“defendant”), found guilty by a jury of two counts of exhibiting a lethal weapon in an angry or threatening manner, § 571.030.1(4), RSMo Cum.Supp.1983, was sentenced as a persistent offender by the trial court, § 558.016.3, RSMo Cum.Supp.1983, to consecutive terms of imprisonment of four years and three years.

. Defendant maintains that inasmuch as the two counts were identically worded in the amended information, the trial court erred in denying his motion for a bill of particulars and his motion to dismiss the amended information.

Defendant also contends that the verdict directing instructions were prejudicially erroneous in that they were “identical in language,” thereby subjecting him to “the possibility of double jeopardy,” and, in addition, that the instructions “were misleading and confusing to the jury, granted it a roving commission to convict [defendant] and hindered [defendant] in raising the issue of double jeopardy in the event of acquittal.”

Lastly, defendant asserts that the trial court should have granted his request for a mistrial because the prosecutor “exceeded the bounds of proper impeachment” in cross-examining a defense witness.

While defendant does not challenge the sufficiency of the evidence to support the verdicts, a brief synopsis is nonetheless required in order to discuss the assignments of error.

The jury could have reasonably found from the evidence that about 6:00 a.m., Saturday, April 14,1984, defendant went to the home of Jackie Summers in McDonald [282]*282County 1 and began “beating” on the door. Ms. Summers testified that when she went to the door, defendant “pulled a gun out, stuck it in my face, and told me if I had been Dal or Diane, I’d be dead right now.”

Then, according to Ms. Summers: “[H]e put his foot in the door and I backed up a little bit, and my old man was asleep there, he’d been working long hours, and his head was covered up, and the defendant said that this was Dal. He said, ‘I’ll just shoot him now.’ I said, no, it wasn’t. I told him who it was and asked him to leave. He said, ‘I should just kill you all.’ ”

Ms. Summers’ children had become frightened by the incident, but she succeeded in calming them and persuading them to return to their bedroom. At that point, defendant backed onto the porch and fired the gun, an automatic “.22 long rifle Rug-er,” into the yard, whereupon Ms. Summers told defendant that the people he was looking for were not allowed at her home. Defendant then walked away, shot down the driveway, got into a blue Mustang, and departed. Ms. Summers identified “Dal,” whom defendant was seeking, as Dal Summers, her brother.

Defendant then appeared at Pearl’s Cafe in Noel, asking the proprietress, Clara Yeargain, whether “Diane” had been there, and with whom. Defendant stated that when they came in, he “was going to tear the place up.”

Diana Sain and Dal Summers entered the cafe and sat down to have coffee. Defendant thereupon asked Summers “if he was the one that beat up a friend of ours.”

Summers denied knowledge of the incident.

Defendant then “jumped up and pulled a gun,” a .22 automatic, and pointed it at Summers. Clara Yeargain recalled defendant telling Summers that he “was going to kill him and splatter him all over the floor.”

Diana Sain, when asked what defendant said, testified, “I don’t remember what was said except that he told him to be out of town by sundown, told him he shouldn’t be with me, or something like that.”

Ms. Yeargain pushed down defendant’s hand which held the pistol. Both men sat down, but exchanged words, and defendant “jumped up again,” repeating his threat to kill Summers.

At that point, Diana Sain told defendant that his girl friend was outside (a ruse to induce defendant to leave the cafe). Defendant went outside, discovered his girl friend was not there, and returned inside.

According to Diana Sain, defendant hit Summers “in the back of the head.” Summers promptly left the cafe, followed by defendant.

Diana Sain then walked with defendant to “Shadowlake,” where defendant hid the pistol. Defendant and Diana then went to Carl’s Cafe and had coffee, after which defendant borrowed a ear from his cousin, retrieved the pistol at Shadowlake, and drove to “Ginger Blue.” There, defendant held the pistol out the car window and fired it several times until it was empty. Defendant later “dropped the gun off” at a cousin’s residence in Lanigan.

The original information was filed against defendant on May 15, 1984. It consisted of three counts, the first of which charged defendant with felonious restraint of Diana Sain, § 565.120, RSMo 1978. The second count charged that defendant “[i]n violation of Section 571.030.1(4) RSMo., committed the Class D Felony of Unlawful Use of a Weapon, punishable upon conviction under Sections 558.011.1(4) and 560.011 RSMo., in that on or about the 14th day of April, 1984, in the County of McDonald, State of Missouri, the defendant knowingly exhibited in the presence of one or more persons a pistol, a weapon readily capable of lethal use, in an angry or threatening manner.”

The third count was identical to the second count, except that “Section 571.030.-1(4)” was erroneously typed “Section 571.-070.1(4)” in the third count.

[283]*283On October 22, 1984, an amended information was filed, charging defendant with the same three crimes. Counts II and III of the amended information were identical with Counts II and III of the original information. The reason for the amended information was to add the allegations necessary to prosecute defendant as a persistent offender.

On the morning of trial, October 31, 1984, defendant filed his motion to dismiss the amended information and his motion for a bill of particulars.

The motion to dismiss was directed toward Counts II and III. It alleged that such counts were “exactly the same and therefore it is impossible for Defendant herein to adequately prepare a defense on said charges.” Furthermore, the motion to dismiss asserted that Counts II and III were insufficiently worded so as to prevent defendant from being re-tried on the same charges should he be acquitted.

The motion for a bill of particulars requested, as to Counts II and III, that the State set forth where the respective offenses took place, the time of day they took place, the manner in which defendant knowingly exhibited the weapon, the type weapon that was exhibited, and what acts of defendant constituted an angry or threatening manner.

Prior to vóir dire of the jury panel, the prosecuting attorney dismissed Count I. A discussion then occurred regarding defendant’s motion to dismiss and his motion for a bill of particulars. Defense counsel stated: “I can’t tell which count is which, what evidence is going to relate to Count II, what evidence is going to relate to Count III. How would I ever make a motion for judgment of acquittal on one count when they both read identically the same?”

The trial court thereupon asked the prosecuting attorney whether he agreed that one count applied to one situation and that the other count applied to another set of circumstances.

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Bluebook (online)
704 S.W.2d 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mitchell-moctapp-1986.