State v. Wald

861 S.W.2d 791, 1993 Mo. App. LEXIS 1439, 1993 WL 345888
CourtMissouri Court of Appeals
DecidedSeptember 14, 1993
DocketNos. 18066, 18543
StatusPublished
Cited by6 cases

This text of 861 S.W.2d 791 (State v. Wald) 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. Wald, 861 S.W.2d 791, 1993 Mo. App. LEXIS 1439, 1993 WL 345888 (Mo. Ct. App. 1993).

Opinion

FLANIGAN, Judge.

A jury found defendant guilty of arson in the first degree, § 569.040,1 and he was sentenced, as a prior and persistent offender, to 30 years’ imprisonment. Defendant appeals, and that appeal is Case No. 18066. After the jury trial, defendant filed a motion under Rule 29.15, seeking post-conviction relief. The motion was denied after an evidentiary hearing. Defendant’s appeal from that denial is Case No. 18543. The appeals have been consolidated and will be dealt with separately in this opinion.

Case No. 18066

Defendant contends that the trial court committed error: (1) in receiving the testimony of witnesses Larry Harsh and Mary Goade to the effect that the fire “would have been such as to cause serious physical injury or death”; (2) in rejecting defendant’s offer of proof as to evidence of a fire of a similar nature which occurred on May 1, 1991, at a house located at 603 Persimmon and occupied by Mary Goade; (3) in giving Instruction 9, MAI-CR.3d 312.10, the so-called “hammer” instruction; and (4) in giving Instruction 4, MAI-CR.3d 302.04, which defined “reasonable doubt.”

Defendant does not challenge the sufficiency of the evidence to support the verdict. In addition to its formal portions, the information charged that defendant, on August 10, 1991, “knowingly damaged an inhabitable strueture consisting of a house located at 627 High Street, Joplin, Jasper County, Missouri, and defendant did so by starting a fire at a time when persons were then present, and thereby recklessly placed such persons in danger of death or serious physical injury.”

The state’s evidence showed that on August 10, 1991, between 3:00 and 3:30 a.m., defendant was in the vicinity of Mary Goade’s house located at 627 High Street, Joplin. In the house at that time were Mary Goade, her 13-year-old son Michael, and Tommy Theus.

State’s witness Atchie Derrick, who lived nearby, testified that shortly before the fire he saw defendant get out of a vehicle which stopped near the Goade house. The driver drove off. A few minutes later, the witness saw defendant walk down the alley to the home of Mary Goade. Defendant was carrying something. Defendant walked through a gate into Mary Goade’s back yard and walked around the house, “like he had it all mapped out.” The witness heard glass break and heard defendant say, “I told you, you bitch, I’d get even with you.” That remark was followed immediately by three explosions. The witness was acquainted with defendant and positively identified him.

Mary Goade testified that her son Michael woke her and said, “Mom, I smell smoke.” Mary walked to the kitchen to see if any appliances had shorted out and saw a fire at the end of her daughter’s bed. The occupants of the house escaped.

Mary Goade testified that she knew defendant. She said, “There was a time when he and I were seeing each other on a regular basis. We had a falling out. There was some bickering going on after we split the sheets.”

During the prosecutor’s examination of Mary Goade, the following occurred:

Q. Now, with regard to this fire, and again this is a pretty silly question, would this fire, had it gone unchecked, would that have caused you and your son and Mr. [793]*793Theus, would that have caused you serious physical injury or death?
A. Yes, it would.

Joplin policeman Larry Harsh testified that he was on duty in the area and smelled smoke. He saw Mary Goade and her son Michael emerging from the house at 627 High Street. He saw them “fall on the front porch or just off the front porch,” and about the same time “the house flashed.” He notified the dispatcher of the house fire because “the house was flashing and flames were coming off the porch area.... I decided I was going to take my gun belt off and crawl up to the house and get the people off the front porch because the flames were so heavy. As I approached the house, flames were being sucked back into the house. I moved them from the porch area to a tree about 30 feet from the porch.”

When the prosecutor asked, “If you had not moved them, would they have been burned,” Harsh responded, “Oh, yes, without a doubt.” He also said that this was not “a small fire by any means.... This whole house — when they opened the door, the whole house flashed, the whole house burned, just — completely.”

A fire investigator testified that the fire was intentionally set and that in the center of the bedroom where the fire originated there was evidence of a “flammable liquid pour.”

Defendant’s first point is that the trial court committed plain error in receiving into evidence the testimony of witnesses Larry Harsh and Mary Goade, quoted above, to the effect that the fire “would have been such as to cause serious physical injury or death.” Defendant contends that the testimony was “conclusory and invaded the province of the jury.”

Defendant concedes that this claim of error was not asserted in the trial court and has not been preserved for appellate review. Defendant requests review pursuant to Rule 30.20, which reads, in pertinent part: “... plain errors affecting substantial rights may be considered in the discretion of the [appellate] court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.”

Defendant relies on State v. Clements, 789 S.W.2d 101 (Mo.App.1990), in which this court held that the trial court erred in admitting testimony of a psychiatrist that the defendant, on trial for murder in the first degree, deliberated prior to killing the victim. The court said that although the psychiatrist was an expert with regard to defendant’s mental condition, he was not an expert on the issue of whether, at the time of the homicide, defendant deliberated, and that the determination of that issue was within the capability of lay jurors under appropriate instructions. Unlike Clements, this case does not involve the admissibility of the opinion of an expert on a subject within the province of laymen.

In State v. Hill, 812 S.W.2d 204 (Mo.App.1991), defendant was convicted of driving while intoxicated. On appeal, the defendant claimed that the trial court erred in receiving evidence from the arresting officer that defendant “was combative and resistant.” The court held that the evidence was admissible even if it was opinion evidence given by a lay person. At p. 208 the court said:

Where a witness has personally observed events he is permitted to testify as to his matter of fact comprehension of what he has seen in a descriptive manner which is actually a conclusion, opinion or inference, if the inference is common and accords with the ordinary experiences of everyday life.

This case involved a house occupied by three people when it was set afire. According to Harsh, the house burned completely. Even without the challenged portions of the testimony of Mary Goade and Larry Harsh, the state’s evidence supported a finding that the fire placed the occupants of the house in danger of death or serious physical injury. The challenged portions were merely cumulative and self-evident. They accord with the ordinary experiences of everyday life. Defendant’s first point has no merit.

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Cite This Page — Counsel Stack

Bluebook (online)
861 S.W.2d 791, 1993 Mo. App. LEXIS 1439, 1993 WL 345888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wald-moctapp-1993.