State v. Allen, 56313

• Decision Date: 08 November 1971
• Docket Number: No. 2,No. 56313,56313,2
• Parties: STATE of Missouri, Respondent, v. Robert F. ALLEN, Appellant
• Court: Missouri Supreme Court

Page 358

472 S.W.2d 358

STATE of Missouri, Respondent, v. Robert F. ALLEN, Appellant.

No. 56313.

Supreme Court of Missouri, Division No. 2.

Nov. 8, 1971.

John C. Danforth, Atty. Gen., Kermit W. Almstedt, Asst. Atty. Gen., Jefferson City, for respondent.

Shaw & Howlett, by Joseph Howlett, Clayton, for appellant.

PRITCHARD, Commissioner.

A jury found appellant guilty of forcible rape and assessed his punishment at 45 years in accordance with which the court imposed sentence. Appellant seeks reversal upon points I and II, that his motion to suppress his confession should have been sustained because there was no evidence that he intelligently waived the right to counsel, and that the court erred in finding, as a matter of law, that he waived his right to counsel; III, that a mistrial should have been declared when witness Farmer referred to evidence of other crimes, 'rape and robbery charges'; IV, that there was insufficient evidence upon which to predicate a conviction; and V, that the court erred in refusing appellant's Instruction A relative to the jury's duty if it was unable to agree on punishment, or the issue of guilt or innocence.

As to points I and II, relating to an intelligent waiver of counsel, the record is not silent as appellant contends as being within the ban of presuming waiver from a silent record under Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694. What happened is this: Appellant was advised by officers of his 'Miranda' rights on three separate occasions: when he was arrested; when he was held at the Eighth District Holdover Police Station; and when, thirty minutes later, he was at police headquarters. On the first two occasions appellant remained silent, but on the third occasion when he was against advised of his rights he stated he understood them and that he wished to make a statement. There was no evidence at the pretrial motion to suppress that there was any coercion, threats or promises. There was no lengthy interrogation, no incommunicado incarceration. Appellant did not testify at the pretrial hearing, but did so at the trial where he testified he was physically abused, threatened and given promises--such testimony being directly controverted at trial. It further appears that appellant was at the time of trial nineteen years of age and had an eleventh grade education. It is apparent that the trial court did not err in overruling the motion to suppress the confession, or in finding that it was voluntary after the pretrial hearing. State v. Auger, Mo., 434 S.W.2d 1, 6; State v. Hughes, Mo., 460 S.W.2d 600. Under the facts, State v. McGee, Mo., 447 S.W.2d 270, does not aid appellant.

During the direct testimony of Officer Oscar Farmer, the state inquired of him where he had first seen appellant. He answered 'District Eight,' and that appellant was in custody at the time, and 'Q. And under what charge was he in custody? A. He was charged rape, robbery. Q. No, I am--MR. HOWLETT: Objection, your Honor, please. Q.--talking about this particular case.' The ground for the objection was stated by counsel, and was sustained by the court, and upon request the jury was instructed 'to disregard the last statement of the officer concerning any robbery; it will be stricken from the record.' The request for mistrial was not granted. In view of the prosecuting attorney's statement that he was talking about this particular case, and the court's instruction to disregard the robbery matter, the error, if any (there was testimony that robbery was perpetrated when the prosecutrix was abducted), was cured. State v. Mallory, Mo., 423 S.W.2d 721, 723(3). The matter was not so inflammatory as to be prejudicial as was the case in State v. Hancock, Mo., 451 S.W.2d 6, 9(3), where there was insufficient evidence to support the charge. See also Holt v. State, Mo., 433 S.W.2d 265.

On September 12, 1969, Carol Schroeder, the prosecutrix, and her roommate, Diane Thompson, lived at 823 Gustav in north St. Louis, Missouri. That evening, according to Diane, she and Carol visited the aunt and uncle of the latter near Normandy in St. Louis County, and left there about ten minutes to one o'clock. They traveled on Natural Bridge, intending to go north on Goodfellow but could not make a left turn at that intersection. They traveled south on Goodfellow, drove in a parking lot intending to make a U-turn, when a blue car blocked the car from going farther. There were four colored occupants in that car, three of them got out and pointed guns at Diane's car, and two of them went to each side of Diane's car and ordered her to open the door. The two girls were ordered to get out of the car, which they did. Then the two girls got back into Diane's car with Carol in the front seat with one male Negro, and Diane in the back seat between two Negroes. The driver drove Diane's car about 10 to 20 feet onto Goodfellow where the car stopped, and the three Negroes decided to get in the other car. They left, taking Carol with them and leaving Diane in the back setat of her car. Diane gave a passing police officer a general description of the four young Negro males and told him what happened. She also gave the...