State v. Adams

• Decision Date: 12 April 1971
• Docket Number: No. 2,No. 50379,50379,2
• Citation: 465 S.W.2d 536
• Parties: STATE of Missouri, Respondent, v. Elvin Wayne ADAMS, Appellant
• Court: Missouri Supreme Court

Page 536

465 S.W.2d 536

STATE of Missouri, Respondent, v. Elvin Wayne ADAMS, Appellant.

No. 50379.

Supreme Court of Missouri, Division No. 2.

April 12, 1971.

John C. Danforth, Atty. Gen., Frank P. Cihlar, Asst. Atty. Gen., Jefferson City, for respondent.

Shifrin, Treiman, Schermer & Gallop, Gary S. Heifetz, St. Louis, for appellant.

FINCH, Judge.

Defendant was tried and convicted under the Second Offender Act (§ 556.280, V.A.M.S.) on March 29, 1963, on a charge of rape and was sentenced to life imprisonment. On appeal that conviction was affirmed on June 8, 1964, in State v. Adams, Mo., 380 S.W.2d 362. Defendant then filed a motion to vacate judgment and sentence under Supreme Court Rule 27.26, V.A.M.R. Denial of relief thereon by the trial court was affirmed in State v. Adams, Mo., 403 S.W.2d 604. Thereafter, on the basis of Swenson v. Donnell, 8 Cir., 382 F.2d 248, and Bosler v. Swenson, 8 Cir., 363 F.2d 154, this court, at defendant's request, set aside the June 8, 1964, affirmance and reinstated his appeal for the reason that he had not been represented on appeal by counsel. Counsel was appointed and the case has been briefed and argued. We affirm.

The evidence at the original trial was extensively stated in the opinion reported at 380 S.W.2d 362. We do not repeat that testimony except as specific reference thereto may be necessary to this decision.

The first point briefed on this appeal is that defendant's oral and written confessions were coerced and not voluntary and consequently were erroneously admitted in evidence. In reviewing that question it appeared from the transcript of the original trial that on defendant's request the court conducted a hearing outside the presence of the jury on the admissibility of the confessions, at the conclusion of which they were ruled admissible. However, the court did not make a specific finding of record that the confessions were voluntary, as a result of which we made an order pursuant to the procedure adopted in State v. Auger, Mo., 434 S.W.2d 1, and State v. Edwards, Mo., 435 S.W.2d 1, as follows:

'It appearing from our consideration of this case that the trial court admitted into evidence the oral and written confessions of defendant as testified to and identified by witnesses for the State; that prior thereto the court held a hearing outside the presence of the jury to determine the competency of said confessions; and that following said hearing the trial court overruled objections to said confessions and admitted same into evidence, but that the transcript of the record does not show with unmistakable clarity that the trial court found the confessions to be voluntary, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593;

'It is ordered, therefore, that the trial court, after giving counsel notice and with defendant present, shall conduct a hearing and from a consideration of the evidence in the record in this case and such additional evidence, if any, as may be offered by the State or by the defendant on the subject (Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634), the trial court shall make an express finding as to whether said confessions were or were not voluntary.

'It further is ordered that the aforesaid findings shall be certified promptly to this court, to be considered as a supplement to the transcript, in order that this court thereafter may proceed to make a determination of all the issues in this case.'

The trial court on December 18, 1970, held a hearing pursuant to the above order, and we now have received a duly certified supplemental transcript of that testimony and of the court's findings of fact and conclusions of law. The trial court, based upon the transcript of the original trial and the testimony heard on December 18, 1970, specifically found that the defendant was advised of his rights prior to his oral and written statements and that his confessions were voluntary.

Defendant was arrested during the morning of February 23, 1963, at the motel where he was employed as a bellhop. He was taken then to the Kirkwood Police Department where the police were holding Frank Spears, another suspect (as the original opinion at 380 S.W.2d 362 indicates, two men were involved in the incident and Frank Spears was the other person). Defendant was told at that time that he had the right to remain silent and make no statement and that anything he said could be used against him.

Defendant was kept at Kirkwood a half hour or so and was interrogated about the incident at the Twin Oaks Motel during which Mrs. Hartupee was raped. He denied any knowledge of the incident. He then was taken by the officers sometime before noon to the St. Louis County Police Department Headquarters at Clayton, where he was booked on the charge of rape and placed in a cell.

That evening the two officers, together with Sgt. St. Onge, arranged a lineup at the Sheriff's office at Clayton which involved six persons, including defendant and Jack Spears. Defendant was identified at the lineup by the victim, after which he was returned to the St. Louis County Police Headquarters. He then was questioned in the presence of the victim, her husband and Mrs. Burchanan, a friend who had been present in the motel room when the incident occurred. Defendant again was advised of his rights but nevertheless agreed to make a statement in which he admitted that he and Frank Spears had been at the Hartupee motel room and that he had raped Mrs. Hartupee at that time.

Defendant then was taken by the officers to the home of a relative where he said he had left the gun used in the incident, together with some articles, including a radio, taken from the Hartupee motel room. After picking up the gun and radio they went to the Hartupee motel room where defendant pointed out where everyone had been and described the occurrences, and pictures were taken. Thereupon, they returned to Clayton, where defendant gave and signed the written confession which was introduced into evidence. According to the officers, Detective Herren would type a question and read it to the defendant, after which he would type defendant's answer. This procedure was followed until the statement was completed, after which defendant read and signed the statement and initialed the corrections made therein.

Defendant testified that at no time was he advised of his constitutional rights, including the right to remain silent. He said that he was interrogated almost constantly except for short periods in the cell at Clayton, and that during the afternoon of February 23, Detective Patty took him to a soundproof room on two separate occasions and beat him and threatened him with death if he did not confess. He also testified that as he was returned in the automobile from the lineup to the Police Headquarters he was taken into an alley and the officers tried to push him out of the car and threatened to shoot him unless he agreed to confess.

This testimony of defendant was contradicted by the officers. They testified, as previously stated, that defendant was advised of his rights and that defendant was not at any time beaten or threatened or abused. The alleged beatings by Detective Patty during the afternoon and by Patty and St. Onge enroute between the lineup and Police Headquarters were specifically denied by the officers.

In addition to the testimony by the officers on the question of mistreatment, the State produced Jacob Wolff, a reporter for the...