State v. Barnett, 48054

• Decision Date: 10 October 1960
• Docket Number: No. 48054,No. 2,48054,2
• Citation: 338 S.W.2d 853
• Parties: STATE of Missouri, Respondent, v. Billy BARNETT, Appellant
• Court: Missouri Supreme Court

Page 853

338 S.W.2d 853

STATE of Missouri, Respondent, v. Billy BARNETT, Appellant.

No. 48054.

Supreme Court of Missouri, Division No. 2.

Oct. 10, 1960.

Graves & Graves, Neosho, James Tatum, Pineville, for appellant.

John M. Dalton, Atty. Gen., George E. Schaaf, Sp. Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was convicted of first degree robbery in the Circuit Court of Newton County, on change of venue from McDonald County. The jury assessed his punishment at five years' imprisonment, but recommended 'leniency.' Motion for new trial was duly filed and overruled and the defendant sentenced. On this appeal the sole question briefed is the alleged error in admitting in evidence a signed confession. With the case in this posture we need not detail the facts of the robbery at length.

On the evening of December 19, 1957, the operator of a liquor store at Tiff City, Missouri, was robbed. Two men entered the store, one armed with a pistol and one with a shotgun; they wore stocking masks. They took the owner's billfold, made him open a safe and took what money they found there, and rifled the cash register. The owner, Julius Martin, was shot in the hand during these proceedings; he testified that the robbers took approximately $400. He was unable to identify the defendant at the trial. Defendant was taken into custody around midnight on May 18-19, 1958, in Seneca, where he lived. The officers apparently took him in for investigation concerning another matter. He was placed in jail at Neosho soon after midnight, on the 19th of May. No charge was filed against him on that date. After the officers had questioned certain other persons on the evening of the 19th of May, they decided to interrogate defendant concerning the robbery of the liquor store. He was brought to the office of the prosecuting attorney at approximately 1:30 a. m. on May 20, 1958, and the interrogation continued, off and on, until about 3:00 a. m.

Since defendant relies solely on what occurred there is establish the supposed invalidity of the confession, we shall state that part of the evidence in some detail. As best we can ascertain, the following persons were present during substantially the whole period: Mr. Hurn, Prosecutor of Newton County, Mr. Collingsworth, Prosecutor of McDonald County, Trooper Norman, a State Highway Patrolman, the Sheriff of McDonald County, the Sheriff of Newton County and the Juvenile Officer of Newton County. Apparently two or three other persons were in and out. The questioning was conducted by the two prosecuting attorneys. A woman friend of the defendant and of his mother was present, at least for much of the time, and there was substantial evidence that she and defendant were permitted to talk alone for 20-30 minutes before defendant actually made the confession. There was also substantial evidence that the Newton Conty Prosecutor advised defendant that he did not have to make any statement, that if he did it could be used against him, and that he had the right to call an attorney, indicating the presence of the desk telephone. There is no contention of physical abuse. One witness thought that defendant was told that it would be better for him if he told the truth; that evidence was given at a pretrial hearing. Defendant's testimony at the trial was that he was nervous and mixed up, that 'maybe' he signed 'to get it over with,' that they refused to let him call his mother, and that he recalled nothing after that. When asked why this latter statement was true, he stated: 'I don't know, just nervous and I couldn't think. That's all.' He testified that he did not recall any advice that he might call a lawyer or that he did not have to confess, but that they might have told him these things. He recalled no 'abuse,' declined to say that anyone had threatened him, and recalled no threats or inducements. He denied knowing what was in the confession, specifically denied all participation in the robbery, and testified to facts which supposedly established an alibi. Defendant was 26 years old at the time of trial; he had apparently completed a high school course and 'close to two years' of business college.

The testimony of the officers present, considered collectively, was: that defendant appeared entirely rational; that he was nervous and concerned, and that perhaps his hands trembled occasionally, but that this did not seem particularly unusual; that after defendant and his friend Mrs. Bryant had talked alone for 20-30 minutes one of the prosecutors asked defendant what he had to say and that defendant then said he wanted to make a statement; that his answers to questions were logical and deliberate, and that he appeared 'very aware of what was going on'; that he admitted the robbery and related the various details incorporated into the confession (in which, incidentally, he attributed the idea, the leadership and the shooting to his companion); that no promises or threats were made and no abuse or coercion employed; that the confession contained what defendant told them, and that it was read to him and by him. Apparently Mrs. Bryant had been called in by one of the officials and not by the defendant. None of these witnesses, with one exception, recalled any request by defendant for permission to call his mother; that one, the Newton County Prosecutor, testified in rebuttal that defendant 'may have mentioned calling his mother,' but that, if so, he never asked permission to use the phone and that such a request would have been granted; also, that he could have used the phone on the desk at any time when he and Mrs. Bryant were alone.

The Sheriff of McDonald County testified that after defendant was returned there and while he was in jail he told the Sheriff orally that 'they did rob this liquor store at Seneca,' and that he thought once of giving himself up to the Sheriff but had changed his mind. In answer to a question by the court, the Sheriff testified that he could not say that defendant told 'what robbery' he was referring to. The robbery charged did not, in fact, occur at 'Seneca.'

A former school teacher of defendant testified that he was nervous, 'easily excited,' emotional, and easily led by one in 'authority.' The testimony of a neuropsychiatrist who had examined defendant was read. He testified as an expert that defendant was emotionally unstable, not insane, and that in his opinion, based on hypothetically stated facts concerning the interrogation plus the history received at the examination, defendant would have done 'practically anything to get away from the stress he was under.' Certain lay evidence had been offered at the hearing on a pretrial motion seeking to exclude the confession; this, generally, was to the effect that defendant was nervous, easily excited, and easily influenced; some of these witnesses were there permitted to testify that defendant would go along with a group, or be inclined to be a 'yes' man, and particularly so under the circumstances of his questioning in this matter. Much of this evidence consisted so obviously of conclusions and speculations as not to be helpful. Though it is somewhat unclear, it appears also that the evidence of the psychiatrist was received at this pretrial hearing. That motion was overruled.

The procedure of hearing such evidence before trial, or outside the presence of the jury, was proper. State v. Bellew, Mo., 282 S.W.2d 536; State v. Phillips, Mo., 324 S.W.2d 693. Upon that evidence the court could not conclusively say that the confession was involuntary, and it therefore properly reserved the question for the trial. State v. Statler, Mo., 331 S.W.2d 526. There it became an issue of fact unless on all the evidence the trial court could say that the confession was involuntary as a matter of law. Statler, supra.

Neither the objections made to the confession at the trial, the specifications in the motion for new trial, not the 'Points Relied On' in appellant's brief are as specific as our procedure and rules contemplate. Under the particular circumstances presented here, we have decided...