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State v. Vivone7/23/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Taney County, Hon. James Eiffert
Opinion Vote: AFFIRMED. Crow, P.J., and Parrish, J., concur.
Opinion:
Thomas Vivone (Defendant) pleaded not guilty by reason of mental disease or defect to the charge of murder in the first degree, section 565.020.1. He was convicted by a jury and sentenced to life imprisonment without eligibility for parole. This court ruled in State v. Vivone, 857 S.W.2d 489 (Mo.App. 1993) (en banc), that Defendant had abandoned or waived his initial appeal of the judgment of conviction and sentence. Id. at 491 . On November 4, 1998, this court withdrew its mandate in Defendant's direct appeal (No. 17355). This appeal followed. We affirm.
FACTS
Defendant does not challenge the sufficiency of the evidence. A detailed account of the facts are contained in Vivone, 857 S.W.2d at 489.
Briefly, the record reveals that in the early morning hours of February 11, 1989, Defendant was drinking with Robert Demster and Breck Lingbeck at Demster's apartment. Demster got drunk and went to bed. Defendant and Lingbeck began fighting. According to Lingbeck, Defendant assaulted him after Lingbeck told Defendant to leave. Defendant first struck Lingbeck with his fists and then hit him with a frying pan. Lingbeck got his pocket knife to defend himself but dropped it. Defendant picked up Lingbeck's knife and stabbed him repeatedly. Lingbeck received six stab wounds to the front of his body, five to his back, and sustained a broken ankle and a punctured lung. Defendant then left the Demster apartment and went next door to his apartment to get a larger knife.
After retrieving a kitchen knife, Defendant returned to the Demster apartment. He saw that Lingbeck was not moving. At that point, he went to the bedroom where Demster lay and stabbed him fatally in the chest as he slept. A pathologist testified that two stab wounds in Demster's back were caused by a smaller knife than the kitchen knife found in his chest but that the chest wound caused his death. The pathologist also testified that the fatal wound was exactly perpendicular to the body, there was no evidence of any defensive measures by which Demster tried to protect himself, and there was nothing about his wounds to indicate Demster was standing or moving when the stabbings occurred. The pathologist further testified that his findings were consistent with the theory that Demster was unconscious when he was killed. Defendant told an investigating officer he had stabbed Demster because he (Defendant) thought Demster was a witness.
DISCUSSION AND DECISION
Point I: Plain Error: Instructions MAI-CR3d 310.12 & 310.10
In Point I, Defendant contends, inter alia, that the trial court plainly erred in giving Instruction No. 9 (patterned after MAI-CR3d 310.12) and "in not assuring that the Instruction was submitted in compliance with the Notes on Use." He says that adherence to the Notes on Use would have altered Instruction No. 9 and required an additional instruction patterned after MAI-CR3d 310.10.
Instruction No. 9 was requested by the State and, as submitted, provided:
"If you find and believe from the evidence that the defendant was involved in offenses other than the one for which he is now on trial, you may consider that evidence on the issue of motive or intent of the defendant and you may also consider such evidence for the purpose of deciding the believability of the defendant and the weight to be given to his testimony."
The State pr
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