State v. Scheets

849 S.W.2d 637, 1993 Mo. App. LEXIS 316, 1993 WL 59368
CourtMissouri Court of Appeals
DecidedMarch 9, 1993
DocketNos. 59473, 61808
StatusPublished
Cited by3 cases

This text of 849 S.W.2d 637 (State v. Scheets) 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. Scheets, 849 S.W.2d 637, 1993 Mo. App. LEXIS 316, 1993 WL 59368 (Mo. Ct. App. 1993).

Opinion

AHRENS, Presiding Judge.

In this jury-tried case, defendant Samuel Scheets appeals his convictions of two counts of first degree assault, in violation of § 565.050 RSMol986; one count of armed criminal action, in violation of § 571.015 RSMol986; and one count of interference with child custody, in violation of § 565.150 RSMol986. Defendant was sentenced to thirty years’ imprisonment on each first degree assault conviction, seventy-five years’ imprisonment on the armed criminal action conviction, and a $1.00 fine [638]*638on the interference with child custody conviction.

Defendant also appeals the denial, following an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. For purposes of appellate review, we have consolidated defendant’s direct appeal and the appeal from the denial of post-conviction relief. Rule 29.15(1). We affirm.

The evidence supporting the jury’s verdict established that on October 29, 1989, defendant met his ex-wife, Jana Biddle, in a park where defendant was to return their two children to Jana following an overnight visit. Jana’s husband, Mark Biddle, was also present. When Mark approached defendant’s automobile to remove the two sleeping children, defendant shot Mark in the abdomen. Jana left the scene to get help. Defendant then kicked Mark in the head and amputated his penis. Before Jana returned, defendant fled with the two children. New Mexico State Police subsequently arrested defendant in that state.

A friend of defendant testified that on October 28, 1989, defendant stated he was going to Missouri to visit his children. Defendant also told his friend that he planned to shoot the victim and amputate the victim’s penis.

Defendant raises three points. Point one alleges motion court error. Points two and three allege trial court error. We will first address the points raised in defendant’s direct appeal.

In his second point, defendant contends the trial court erred in failing to instruct the jury on the lesser-included offense of second-degree assault. Defendant asserts such instruction was warranted, because he presented evidence showing he acted under sudden passion arising out of adequate cause.

In State v. Simmons, 751 S.W.2d 85 (Mo.App.1988), we noted that:

Sudden passion means “passion directly caused by and arising out of provocation by the victim [or another acting with the victim] which passion arises at the time of the offense and is not solely the result of former provocation.” Section 565.-002(7) [RSMo] 1986. Adequate cause means “cause that would reasonably produce a degree of passion in a person of ordinary temperament, sufficient to substantially impair an ordinary person’s capacity for self-control.” Section 565.-002(1); State v. Denney, 725 S.W.2d 921, 923 (Mo.App.1987).

Simmons, 751 S.W.2d at 91.

This court further explained in Simmons that “[t]o be ‘adequate,’ the provocation must be of a nature calculated to inflame the passions of the ordinary, reasonable, temperate person.” Id. “[F]or an offense to be reduced to one less culpable, there must be a sudden unexpected encounter or provocation tending to excite the passion beyond control.” Id. “Passion may be rage or anger, or terror, but it must be so extreme that for the moment, the action is being directed by passion, not reason.” Id. Although “words, gestures or other actions may give rise to provocation it was the rule at common law and the general long-standing rule in Missouri that words, no matter how opprobrious or insulting are not sufficient to show ‘adequate provocation’.” Id.

Defendant contends the trial court should have given his requested instructions because there was evidence showing sudden passion arising out of adequate cause. Defendant argues his evidence established that when he arrived at the park to return the children, his ex-wife was “very emotional and upset, and read [him] ‘the riot act’ ” for being late. According to defendant he apologized to his ex-wife, and told her the children were in his car. The victim said, “ ‘Well, you weren’t here, were you?’,” and he “made a beeline” to the passenger side of defendant’s car to remove the children. Defendant testified he became enraged, shot the victim, kicked him, and performed the amputation.

There was no evidence of provocation by the victim. Words alone are insufficient, id., and defendant does not contend the victim approached him. Rather, the victim’s only act was to approach the passenger door of the automobile for the purpose of removing the children. Defendant testified his ex-wife was not at the park when he first arrived, so he telephoned her home. Defendant spoke with the victim [639]*639who “said he’d come pick up the children.” Thus, the sole reason for the meeting was to return custody of the children, and the victim’s action in approaching defendant’s automobile for that purpose was not “a sudden unexpected encounter or provocation tending to excite the passion beyond control.” Id. The evidence viewed in the light most favorable to defendant does not demonstrate such passion as to render a person of ordinary temperament incapable of reflection, or such passion to obscure reason. See Id. We find no error in the trial court’s refusal to give defendant’s proffered instructions on second-degree assault. Point two is denied.

In point three, defendant contends the trial court plainly erred in submitting instruction 4 defining “reasonable doubt” in accordance with MAI-Cr 3d 302.04. Defendant argues the instruction violated his rights to due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution, because the “firmly convinced” definition suggests a higher degree of doubt than is constitutionally required for acquittal.

Our supreme court has consistently rejected defendant’s argument, State v. Waller, 816 S.W.2d 212, 218 (Mo. banc 1991), and has found the instruction meets the requirement that the jury be instructed it must find defendant guilty beyond a reasonable doubt. State v. Griffin, 848 S.W.2d 464, 469 (Mo. banc 1993). Defendant presents this argument “in the event some court in the future concludes the reasonable doubt definition is constitutionally deficient_” Point three is denied.

In his first point, defendant contends the motion court erred in denying his claim of ineffective assistance of counsel, because defense counsel failed to file a motion to suppress statements defendant made to Detective Sam Eli of the Sullivan Police Department. Defendant asserts that if the statements had been suppressed he “may have been acquitted,” and he “was thereby prejudiced by the absence of such motion at trial.”

Our review of a denial of post-conviction relief “is limited to a determination of whether the findings, conclusions and judgment of the motion court are clearly erroneous.” Lane v. State, 778 S.W.2d 769, 770 (Mo.App.1989); Rule 29.15(j).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
849 S.W.2d 637, 1993 Mo. App. LEXIS 316, 1993 WL 59368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scheets-moctapp-1993.