Hemphill v. State, 59931

• Decision Date: 28 April 1978
• Docket Number: No. 59931,59931
• Citation: 566 S.W.2d 200
• Parties: James HEMPHILL, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 200

566 S.W.2d 200

James HEMPHILL, Jr., Appellant, v. STATE of Missouri, Respondent.

No. 59931.

Supreme Court of Missouri,En Banc.

April 28, 1978.

Warren H. Kawin, St. Louis, for appellant.

Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

James Hemphill appeals from the trial court's denial of his Rule 27.26 ¹ motion to vacate judgment and sentence of forty years imprisonment imposed pursuant to the jury's guilty verdict for the offense of second degree murder. That judgment of conviction was affirmed on direct appeal in State v. Hemphill, 460 S.W.2d 648 (Mo.1970).

This cause was appealed to the Missouri Court of Appeals, St. Louis District and, after opinion affirming in that court, was transferred here under Rule 83.03 for determination as though on original appeal. Mo.Const. Art. V, § 10.

For his first point appellant contends the trial court's finding that the state did not deliberately suppress or fail to disclose evidence of the existence of a knife which the victim is alleged to have had when shot by appellant was clearly erroneous because: (1) The Circuit Attorney in the criminal trial knew: (a) there was testimony at the coroner's inquest that the victim had a knife, (b) that Lee Nalls, brother of the victim, had been convicted of stealing a knife in August of 1967; (2) The Assistant Circuit Attorney at the motion hearing admitted the victim had a knife. Portions of the evidence from the original trial are necessary to an understanding of these contentions.

On January 19, 1968, the victim of this homicide, James Smith, with three companions (his brother, Lee Nalls; his uncle, Robert Haymore, and a friend Anthony Williams) went to a pool hall near Haymore's home. While there Smith was fatally shot by appellant (defendant there) who, though admitting having shot Smith, maintained it was in self-defense. Appellant testified that while he was arguing with Smith's younger brother, Smith approached him, putting his hand into his inside pocket as if to go for a weapon and it was then he shot him. Appellant did not see a weapon but defense witnesses, Jackson and Higgins, testified that Smith reached for his inside pocket as if pulling something out before he was shot. They both testified that while Smith was lying on the floor before the police arrived, someone removed a knife from his body. Higgins further testified he could not describe or identify the person who removed the knife and both Jackson and Higgins admitted they had not told the police about the knife. On cross-examination, Jackson also admitted that when first interviewed by the police he stated he knew nothing of the shooting.

Witnesses for the State, on the other hand, testified they saw no knife on the victim and Nalls, brother of the deceased, testified that to the best of his knowledge Smith was not carrying a weapon. Anthony Williams stated he did not see anyone take a knife from Smith's body and on cross-examination reiterated, "Like I said, I didn't see anybody take nothing off him, but I still saw James Smith laying there on the floor." Appellant now asserts the foregoing, coupled with other evidence, indicates the state had possession of the knife or knowledge concerning its whereabouts which it wrongfully suppressed. During trial defense witness Carl Higgins, who as noted above, testified on direct examination that someone had removed a knife from the deceased, admitted on cross-examination he did not know the name of the man who had allegedly removed the knife, and when confronted with apparently prior inconsistent statements from his testimony in the coroner's inquest he contended the transcript was incorrect. As he described it, "This is where they fouled up the statement. . . ." Pressing the cross-examination, the Circuit Attorney inquired "You never told the policeman about the knife?" "A. The only time the knife was mentioned was during the inquest."

As stated by this court in State v. Thompson, 396 S.W.2d 697, 700 (Mo.banc 1965), "suppression of (or failure to disclose) evidence in the possession or control of the prosecution which is favorable to defendant and which might be persuasive to a jury, constitutes such a fundamental unfairness as to invalidate a conviction because violative of due process." While this general statement of the law is correct, petitioner has fallen far short of proving suppression or failure to disclose. The fact that evidence was elicited at the coroner's inquest from Carl Higgins, later a witness for the defense, indicating that James Smith had a knife, does not establish such is the fact or prove suppression. In addition, the fact that Higgins had so testified at the inquest was as well known to appellant as to the State and it was appellant who called Higgins as a witness eliciting favorable testimony that a knife had been removed from Smith's person. Defense witness Jackson testified to essentially the same facts and from this we conclude the defense had information equal or superior to that of the State.

Appellant also contends the prosecutor knew that many months earlier Lee Nalls, brother of the victim, had been convicted of stealing a knife (the record indicates it was a dagger) and that this evidence bolsters appellant's attempt to show the victim had a knife which in turn supports petitioner's claim of suppression. The trial court properly ruled such was "purely conjecture and speculation."

During the hearing, movant's counsel asked witness James Bell (defense counsel in the criminal trial) if he had talked to Nalls since the trial and whether Nalls had told him that the victim had a knife at the time of the slaying. This line of inquiry was objected to as hearsay and during a colloquy with respect to the State's objection, the following occurred "Mr. Kawin: (Petitioner's counsel) Mr. Nalls would testify that the victim in this original trial did have a knife.

"Mr. Chancellor: (Assistant Circuit Attorney) The State stipulates that is true, the victim did have a knife. (Emphasis ours.) There is no question about that. It was found on his person.

"The Court: And that matter what was the objection?

"Mr. Chancellor: The objection to what his statement is, what somebody else said in this record would be hearsay. However, the fact that the victim had a knife came out in the first trial.

"Mr. Kawin: Well, there was conflicting evidence.

"The Court: The objection be sustained.

"Mr. Kawin: We make this as an offer of proof, Your Honor.

"The Court: All right.

"Mr. Kawin: Since we don't have the proof we make it as an offer of proof, Your Honor.

"The Court: All right."

Appellant now contends the State is bound by Chancellor's statement that "the victim did have a knife" and reasons from this that the State, having knowledge, must have possessed the knife and suppressed its use as evidence. It is clear from the record of that colloquy that the basis for Chancellor's statement was the testimony at the original trial. The trial transcript reveals that though there was testimony from defense witnesses Jackson and Higgins that they saw a knife taken from the victim, others testified to the contrary. The disputed fact issue, of knife vis-a-vis no knife, was for the jury. Clearly the Assistant Circuit Attorney was mistaken as to the contents of the transcript and this mistake was recognized by petitioner's counsel who advised the court that "there was conflicting evidence" on the issue. James Darst, prosecutor in the criminal trial, testified to facts explanatory of and contrary to Chancellor's statement and stated categorically he had not suppressed evidence concerning any knife. Appellant contends the "stipulation" by Chancellor, coupled with all the circumstances, establishes his point as to the State's suppression or failure to disclose evidence vital to the defense. We do not agree. While it is important to the orderly administration of the judicial process that admissions and stipulations of counsel when acted upon be given full credence, State v. Levy, 262 Mo. 181, 170 S.W. 1114, 1117 (1914); "(I)mprovident or erroneous statements or admissions resulting from unguarded expressions or mistake should not be binding on the client." Kansas City v. Martin, 391 S.W.2d 608, 615 (Mo.App.1965).

The statement of fact made by the State's attorney was a mistake, refuted by the transcript upon which he based his statement. Further, petitioner did not act upon the statement to his detriment and was aware the evidence was in conflict. The testimony of the original trial prosecutor contradicted Chancellor's statement and there was no evidence presented at the inquest, the trial or at the motion hearing in this proceeding that a knife was recovered or in possession of the State or any person subject to its control. The only testimony concerning its existence came from witnesses whose credibility was brought into question and who could not describe or identify the person that allegedly removed the knife from the victim. This can hardly rise to the level of absolute proof that the victim, James Smith, had a knife on his person at the time of the shooting and that the State had knowledge or possession of such knife and suppressed the same to appellant's detriment. Neither was the State required, as movant suggests, to call Jackson and Higgins as witnesses because they knew something of the charge against him. State v. Collor, 502 S.W.2d 258, 260(5) (Mo.1973).

In connection with this point petitioner also contends that the State suppressed evidence of the pellet that was removed from the victim. The issue was raised in the motion but we find no reference to that issue in the transcript of the motion hearing or the extensive post-hearing memorandum filed by appellant. Thus the issue, improperly preserved, is not reviewable here. Myrick v. State, 507 S.W.2d 42 (Mo.App.1974). Additionally we note the fact of the pellet's existence was in evidence and known to ...