State v. Bullington

Missouri, Respondent, STATE of BULLINGTON, Appellant.

Robert E.

No. WD 34011. Appeals, Missouri Court of Western District.

Sept. 18, 1984. Rehearing Motion for and/or Transfer Supreme Denied Court Overruled and

Oct. 1984. Application Transfer Denied Dec. 1984. bursting Mary forcibly

home of Osborne Mary a basement door. and her two chil- dren, Pamela, were John and threatened Bullington shotgun held a and later who eyes taped their and hands while ran- Subsequently, Bulling- sacked the house. hostage. ton Pamela as a Bull- left with by Mary ington identified and was John perpetrator of the crimes.

I. procedural

Addressing points, first Bullington’s we consider contention that prosecution under re- his an indictment July, 1981 turned in was excess of the jurisdiction court’s because the indictment year three was statute of limi- argues, tations for the crimes. He also assuming even was com- limitations, menced within statute of discharged that he was entitled to be be- cause trial was not conducted within provided 545.780, the time limits RSMo points a requires 1978. Discussion these recounting history of this case and Dames, Defender, Mary Asst. Public 21st charge capital associated murder. Circuit, Clayton, appellant. Judicial for original indictment, Bullington On the Ashcroft, Gen., Atty. John Michael H. charged capital was with murder kid- Finkelstein, and Gen., Atty. Asst. Jefferson (as Pamela) napping hostage, and City, respondent. for issue, with the here at armed offenses CLARK, P.J., Before and SHANGLER action, burglary flourishing a criminal and NUGENT, (cid:127)and JJ. weapon. proceeded Trial on October all 1978 and were had on convictions CLARK, Presiding Judge. however, 13, 1979, February a counts. On Bullington E. tried and Robert was Bullington trial ordered for be- new was multiple convicted offenses armed impermissible cause of the exclusion action, burglary degree criminal in the first jury venires in women from Jackson Coun- dangerous of flourishing and counts two ty. point, Bullington At that moved sentenced, deadly weapon. He was remaining count from sever the murder years. aggregate, to a term of 130 24.04(a) counts in accordance with Rule presents raising appeal points This five is- January which had effective on become procedure concerning sues of admission year. judge A refusal of the evidence, jury exclusion of instruction grant the severance resulted a writ upon and limitations of time the state’s prohibition Supreme taken the Missouri proceed prosecution. entitlement 24.04(a) it was held that Rule Court where sufficiency of the to sustain evidence applied grant- and the severance to be was is not in the convictions contest. Mason, Bullington ed. State ex rel. trial, From that From evidence adduced at forward, Sep- point paths of the murder jury was entitled to find that 3, 1977, remaining diverge Bullington charge entered the counts tember proceed computed part of the time separately respective to their shall not be prescribed conclusions. of- the limitation fense.” original charges prosecuted remained on the court’s calendar indictment, Because under pur- bifurcated form while nol-prossed September, continuous- whether, appeals questioning sued on sec- ly until new indictment from 1977 trial, ond the state was entitled to seek the § 1981, 541.230, apparent in returned it is penalty death as to the severed murder limitations, tolled statute of RSMo 1969 the charge. ultimately It was held that the § 1969, 541.230, entry if the nolle RSMo penalty death was a not available second prosecu- of a prosequi equivalent was the capital charge if the trial of the murder quashed, set or We tion aside reversed. punish- first trial had a lesser resulted that it conclude was. Missouri, ment. 451 U.S. law, proceedings partic At a common 430, 1852, (1981). 270 101 L.Ed.2d S.Ct. 68 prosecu the ular could be retracted bill apparent point, At not this reasons any tion time bar to a at without subse record, to seek new elected a quent prosecution original revival of the or as to offenses other than indictment the under a withdrawn bill. Time accumulated charge that the murder indictment was not to com or defective indictment was be 7, July there- returned 1981. At some time puted part time of limitation. as after, 1981, apparently September, the concept recognized as the This law as prosequi state to the entered nolle State ex rel. exemplified by as Missouri original proceeded Trial indictment. (Mo. Cottey, Lodwick v. May 10, commencing 1981 1982 indictment § App.1973). There held that 541.- it was judgment to a of conviction. 230, period operates to toll the RSMo Bullington first the 1981 indict- contends indict during pendency of limitations he ment under which was convicted should though indictment is so de the ment even because, at time have been dismissed the dismissal, a require to dismissal fective as filed, was more than three indictment statutory language, being equated years passed prose- the crime and had since “quashed, aside reversed.” set or cution barred under statute was § 556.036, He relies on RSMo limitations. prosequi question of a nolle whether period of limita- 19781 as the basis for the setting equivalent of aside is likewise the Although year period con- tions. a three con- prosecution or was an indictment event, in error in the trols in either he is Primm, ex rel. Graves sidered in citation of statute. entry (1875). There the record 61 Mo. 166 against filed relator 556.036, the indictment Bullington re- showed on which Section § 556.031(3), The latter contended expressly declared had set aside. lies been com- apply govern any actually to or offense filed a nolle prosecutor had 1, prior prior January 1979. The sought mitted he a revision of prosequi and statute, setting year a three limitation also The court held the record to this effect. prosecution of felonies generally for prosequi” “nolle words “set aside” and Bullington’s at the time of and effective legal the same effect. be § 541.230, 1969. Material crimes is RSMo § 541.230, RSMo is the to the advanced On the basis of prior companion 1969, Bullington statute denied his entitle section from the must be § 541.230, year revision, rely of the three RSMo on a ment bar the statute reads: of limitations because statute throughout period of time was tolled prosecution shall indictment or “When an was first returned reversed, when the indictment set quashed, be aside pending. during pending same was which the time except noted. other- wise are to 1. AHcitations RSMo Appellant previous portion next asserts in the As we observed court in failing abused its discretion appellant’s which considered limitations, sustain motion for dismissal which claim under the statute of § § provisions 545.780, relied on the application 556.031 limits of 1977 crimi- Speedy contends, changes Trial Act. He as to nal code indictment, arraignment January that neither crimes committed after 1979. adopted nor trial speedy concurrently were conducted within the time The act limits of argues the statute. He also of the Assem- session General course, entry bly is, procedural time limit retrial after Any law. new applica- trial order was not observed. doubt as whether well procedural ble to as to substantive record, apparent On the face changes statutes resolved more days passed than 10 between Bloom, rel. State ex Peach v. decision filing of indictment and the date 744 576 S.W.2d The court arraignment, of days passed more than 60 § applicable there ruled that 556.031 was granting date of between the the order procedural to well as substantive new trial and trial and more 180 than and, in changes the criminal as a statutes days passed arraignment between consequence, subject the defendant was to 1981 indictment and the ultimate trial sentencing under the Second Offender Act 1982. contends he met his bur- repealed which had been as of the date of statute, citing State v. Rich- den under the trial but which was effect when the mond, (Mo.App.1980), crime was committed. excludability that the failed to state show any of part delay. of the Although subject application speedy of of the point state’s brief dismisses the to unwor- trial law of crimes commit- thy response of and therefore no includes ted before the effective date of that law argument authority, ap- or citation of previously any has been addressed pellate process is not amenable to or served case which has considered the effect of unreasoned, § by dispositions arbitrary prior of two by 556.031. At least decisions court, cases. Newberry, v. We therefore consider the on State 605 S.W.2d merits, Richmond, its necessity relying (Mo.1980) to some 117 611 extent on the court’s (Mo.App.1980) applied own research. 351 S.W.2d discussing act pre-1979 crimes without At the outset is to be noted Bull- considering legislative directive of ington no delay makes claim of trial toas § 556.031. In neither case was relief first trial the case which commenced granted to the defendant and the re- thus 13,1978 October and was concluded Febru- sults not have been would altered were 13, ary granting the order a new § 556.031 to have been construed as a limi- trial. pro- Attention focuses instead on application of the speedy tation on trial act. ceedings which commenced with the indict- 7, July ment general requiring returned 1981 and the trial rule utilization of following ofMay procedural commenced law in effect as of the date year. § argument, Bulling- presenting and, In of a criminal trial is set out in § ton 556.031, fails to address the appellant issue whether but for entitle would § 545.780, applicable which he provisions speedy relies here to invoke the of the charges 556.031, however, to trial on of offenses which oc- trial act. Section con n “ * * question phrase, curred in provisions 1977. whether tains the applicable 1.160, RSMo, “speedy act” is notwithstanding.” section 1, September law State ex where the effective This deemed the court in Bloom, supra, rel. Peach v. was not existence at the time the to have evi crime legislature was committed but was in force an intent denced to ex proceedings against when the the defend- clude its 1977 revisions the criminal law § ant were relegate instituted. from the effect of 1.160 and to prior 1, argument January supporting committed nor offenses contention procedural any prejudice to both the and substan at- appellant’s cause suffered tive laws effect when the crimes were to admission of the exhibits. tributable committed. This is unmistak conclusion initially point against rule the We language able from “ * * * assert, appellant for his failure to much said, where it is it is we believe demonstrate, that he suffered less clear that the intent of the Assem General prejudice the articles were re because bly enacting section 556.031 was make in evidence. Where a defendant' ceived provisions existing prior to the new law evidence, reception claims error in punish relating code criminal both as showing has the burden of both error and ‘proceedings’ applicable and to all ment Lantigua, State v. prejudice. prior January offenses committed (Mo.App.1983). Bloom, rel. State ex Peach su 1979.” pra, p. 746. Considering, gratia, possibility ex perceived. any prejudice, only none is conclude, therefore, We Bull- remotely prose- even exhibits connected to ington’s delay in arraignment claim of subject charges pa- cution of were non-compliance by based per bag, penlight receipt and carton and requirements 545.780 with carton, supposed- the cancelled check. The ap out merit because the statute was not ly containing suggested penlight, plicable charged where the crimes were prosecutor purchased by to have been prior January 1979. Bull- committed Bullington penlight then used to and ington makes no other claim under this telephone at illuminate the wires the vic- point, apart statutory ground from the they tims’ house as were cut before or unnecessary It to 545.780. is therefore entry penlight to the No after house. delays in whether the case were or consider carton, produced, establishing only the thus computa were not to be excluded a time Bullington at at some time may most that tion. penlight had a which he could have if telephone locate wires it were used to II. he cut them. who Appellant next contends the trial court introduced in permit- The cancelled check was failing suppress erred in and ex- evidence connection with the direct ting admission in evidence at trial certain amination the state of witness Gronek. appellant’s exhibits seized from home and initially that some two searches, The latter testified motor from his vehicle. The committed, weeks before the crimes were argues, and were warrants were without Bullington to his house in re- had come protection unauthorized under sponse gun of a Gronek’s advertisement For purposes Fourth Amendment. dis- purchased gun for sale. position point, we assume without personal supplied identifica- and Gronek intrusions deciding the warrantless were pointed appellant at trial tion. Gronek out impermissible in- and therefore the details person purchased gun had who and dicating how access to home vehi- and whose credentials had demonstrated recounted. cle were obtained will not be Bullington. prose- him The to be Robert E. seized, Among the those admit- articles produced then the cancelled cheek cutor paper a ted in evidence in this trial were one and confirmed the check as Gronek K-Mart, bag receipt penlight a from given payment him box, carton, rug shampoo piece rope, a weapon pro- gun. itself was not photo woman the torn unidentified re- apparently duced arid had never been The association of a cancelled check. covered. any pivotal fact any of these items with Miller, (Mo. entirely In is left to surmise 650 S.W.2d issue 1983), long- appellant’s brief offers neither banc the court reaffirmed because standing rule (a) that harmless error ror are that the trial court erred admission of evidence will not re- excluding warrant defense evidence on the reliabili- versal of a ty identification, (b) conviction. The eyewitness court further held that error is refusing harmless if the court is trial court erred in able conclude MAI a reasonable instruction on the state’s doubt burden of erroneously proof eyewitness that the as to received evidence was identification. harmless to weight defendant’s cause. The trial, Prior to the defense endorsed Rob- proper of other guilt evidence of also was expert ert Buckhout as an witness. Draw- considered bearing the court as on the ing from the statements made counsel erroneously evaluation received evi- court, appears Buckhout, Degraffenreid, See also State v. dence. resident, a New York has conducted stud- S.W.2d 57 engaged ies and has empirical research eyewitness identification, particularly in appellant exhibits which claims were surroundings phrased ap- of stress. As erroneously received in this case cannot be pellant’s brief, “Appellant offered Dr. prejudiced said to have appellant’s case testify Buckhout to as to his research on when those exhibits are evaluated in the eyewitness effects of stress in identifi- context of the issues in the case and the cation theory and to the and research held other evidence. penlight carton was so by experimental and social psychologists far removed from tending prove fact challenges commonly held beliefs appellant’s guilt that it should have been perception about human among laymen.” excluded as irrelevant. That same irrele- presented The state a motion in limine to vancy operates also mitigate a claim of preclude any testimony subject by prejudice. The carton was irrelevant be- Buckhout and the motion was sustained. cause proof there was no the contents were At trial the defense renewed its intention associated with the crime or Bulling- Buckhout, to call objected presence ton’s Perforce, at the scene. objection was sustained. exhibit could not have prejudice caused appellant. check, As to the cancelled proof offer of as to Buckhout’s testi- surplus most, evidence was and at cumula- mony consisted aof brief narrative state- tive. Witness Gronek Bullington identified by ment defense counsel. This method had purchaser as the gun, of by the agreed reason been to in by advance counsel and check, of the cancelled Bulling- but because the court to expense transport- avoid the of ton told Gronek at ing the time who he was the witness to payment Missouri and of provided and Moreover, identification. Unfortunately, the witness fees. the choice of possible prejudice exhibits, from any prospective the if alternative leaves the con- was, there by is diluted tent of testimony specula- all the other the witness’s evi- case, dence in including conjecture. the tion and unequivocal identification of by the two vic- proper procedure The for an offer tims. proof is, of objec to a witness who on Under the standard State announced tion, precluded testifying present from is to Miller, supra, v. we conclude that the evi- preserve and by questions the offer to and dence of which complains was by answers the witness from the stand. harmless a reasonable doubt. The Sullivan, State v. 553 (Mo.App. S.W.2d 510 against appellant. is ruled proof however, An may, offer of be through by narrative form a summation

III. counsel, so, if but the summation must be points The final two appel- definite, advanced specific and set out the content of conjunctive lant lend themselves to discus- testimony the to demonstrate its admissibil sion. Both McMillin, subject eyewit- concern the of McMillin v. ity. ness of Bullington by identification (Mo.App.1982). the sur- party When a fails

viving points victims. of asserted er- make proof question an offer of and

244 stead, form, present proof of answer the risk is the record offer reviewing apply re- court will find the offer insuffi- shows Buckhout was to his Griewe, Stapleton specifics cient. v. 602 of case S.W.2d search to the and (Mo.App.1980). the in particular, This is situation to the made the identification present the twenty case. two witnesses after a second view- ing weap- the of a brandished under stress authority There of on is no dearth on. subject expert testimony the of offered significant criminal if not trials where a no have cited Missouri case Counsel component exclusive of the the yet admissibility which has ruled on of case the of the accused testimony dealing is identification expert with the scientific eyewitnesses. purpose of identification, The obvious reliability eyewitnesses of testimony acquaint jury such is to with independent and research has disclosed of on testimony results tests research witness none. the actual of the Without to the perceptions apply and to that data expert, conformity proof of in this jury’s weight giv is determination what case to in the cited cases that condemned testimony eyewitnesses it has en the qualification exception its counsel majority of courts which have heard. in appellant’s advocates brief cannot be ex question considered the have ruled the discerned. We decline undertake pert proper testimony to be of no assist formulation an on matter ance because it tends invade the function impression first in the state without a more jury impaneled perform. proceed. Where substantial basis from which percep limits expert witness defines deficiency Despite this laboratory relates tion in conditions and argu somewhat nebulous character of prevailed in those to conditions which receipt of the Buckhout supporting ment bar, at is a comment on result point may resolved on testimony, be testimony weight credibility of the grounds. evi traditional The tendered given. opponent’s witnesses objected to dence (5th Thevis, F.2d 616 States v. United grounds relevancy. relevancy Fosher, Cir.1982); v. United States is of testimony, where the evidence doubt Cir.1979); (1st F.2d 381 United States value, probative is a matter left to the ful Amaral, Cir.1973). (9th 488 F.2d 1148 judge decision discretion probing cited cases have held that cross-ex appeal only an abuse reviewable adequate present tool for amination Hensley, of discretion. ing necessary for the jury to the the facts Evans, (Mo.App.1983); State v. reliability of the identi to evaluate (Mo.App.1982). The court S.W.2d 62 evidence. fication charged here cannot be abuse analysis attempt apply this An rejecting in Buckhout evi discretion the the subject ease thwarted at threshold is presented. dence on the record testimony no record of the because there is given. Appellant ap- sub-point complains The have final advanced Buckhout would give cautionary expert testimony the refusal to pears that court’s to concede by de- amounting to on reliabili- identification instruction tendered adverse comment jury specific fendant. The instruction informed the ty testimony given by a witness contends, however, proving bore the burden of He that the state is not admissible. beyond identifica- was not of that a reasonable doubt that that Buckhout’s evidence opinion tion of defendant was accurate and that consisted “his the nature but instead opportunity of jury from the should consider the inferences could draw what circumstanc- on scientific knowl- the witness observe the facts certain based proffered imple- The instruc- concept would es which existed. edge.” How this be 2.01 questions supplementary wit- tion Instruction by mented counsel’s (MAI-CR2d) given. In- responses is not delineated. which was ness’s Appellant’s point prohibits any 2.01 other or addi- by fails reason of MAI-CR2d believability tional on of wit- expressly on instruction MAI-CR2d Notes Use or their weight nesses or value of testi- giving instruc forbid additional Borden, v. mony. 605 S.W.2d State on or believability tion of witnesses (Mo. effect, 1980), no in- banc affirms that added weight testimony. or their value of believability a witness subject, on than struction as No instruction other testimony or the is v. Bor value witness’ State proper. MAI-CR2d 2.01 den, given. be 605 S.W.2d given an identification judgment evidence affirmed. for jury

witness is evaluated believa- and, doing, necessarily bility jury in so All concur. op- considers whether the witness had the portunity ability to observe and recall ON MOTION FOR REHEARING pos- which made identification features PER CURIAM: jury sible. MAI-CR2d 2.01 instructs the rehearing Appellant’s motion con- for upon these factors. Telfaire instruc- opinion tends the this case errs in hold- repeats tion the content of MAI-CR2d 2.01 ing cautionary defendant’s identifica- particular upon with stress identification instruction, court, tion refused the trial evidence. It is an added instruction on the sup- violates on In MAI-CR2d Notes Use. believability of witnesses and value v. port position, appellant of his State cites testimony. their Little, (Mo.banc 1984), repeatedly The cases and consist- which holds that MAI not does forbid ently on held MAI-CR2d Notes Use giving of an Ap- identification instruction. religiously are to be a failure observed and pellant argues that should have conformity therewith results instruct case, been considered in Mee, v. presumptive State error. MAI-CR2d, upon strictures of but the dis- v. State (Mo.App.1982); cretionary authority of the trial court and Franks, (Mo.App.1982). 643 S.W.2d the contended abuse of that discretion. Notwithstanding the comment contained by appellant The instruction offered Little, supra, State v. the identification patterned the “Telfaire after appellant in instruction offered this case Instruction”, so named from United States violating given could not have been without Telfaire, (D.C.Cir.1972). 469 F.2d 552 motion to transfer is denied. jury MAI-CR2d informs the upon believability alone must decide so, may in doing

witnesses and op- ability take into consideration portunity of the to observe and witness following Notes on Use 2

remember. MAI-CR2d Notes Use. We are emphasizes The instruction burden unwilling accept appellant’s argument prove the state to identification has, effect, that State v. Little modified reasonable doubt and directs the to MAI-CR2d sub silentio. Unless and until capacity, opportunity consider the cir- Supreme expressly directs that Court affecting cumstances of the their witnesses or Use MAI-CR2d the Notes on be ability to make the The in- identification. obligated to changed, trial courts are struction offered and refused juries pat- instruct in accordance Little, supra, is not out in set effect, tern like a fail- instructions. With except “identi- otherwise described as an ure to MAI-CR2d result follow must fication instruction.” We assume presumptive error. essentially the same content rehearing is overruled motion in this case. instruction

Case Details

Case Name: State v. Bullington

Court Name: Missouri Court of Appeals

Date Published: Sep 18, 1984

Citation: 680 S.W.2d 238

Docket Number: WD 34011

Court Abbreviation: Mo. Ct. App.