State v. Brookins

• Decision Date: 10 May 1971
• Docket Number: No. 2,No. 55650,55650,2
• Citation: 468 S.W.2d 42
• Parties: STATE of Missouri, Respondent, v. Milton BROOKINS, Appellant
• Court: Missouri Supreme Court

Page 42

468 S.W.2d 42

STATE of Missouri, Respondent, v. Milton BROOKINS, Appellant.

No. 55650.

Supreme Court of Missouri, Division No. 2.

May 10, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 14, 1971.

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

Daniel P. Reardon, Jr., St. Louis, for appellant.

STOCKARD, Commissioner.

Milton Brookins was found guilty by a jury of robbery in first degree by means of a dangerous and deadly weapon, and he was sentenced to imprisonment for a term of sixty years.

The sufficiency of the evidence to sustain the conviction is not challenged. Therefore, we shall set forth but a brief summary of the facts.

On June 22, 1969, at about 3:30 o'clock in the afternoon, defendant knocked on the door of the apartment of Miss Connie Rosenbaum, and when she opened the door he forced his way into the apartment by the use of a gun. After warning Miss Rosenbaum and Miss Rene Flanders, a visitor at the apartment, not to say anything or he would shoot them, he demanded and received $24 from Miss Rosenbaum. Then, with a knife as well as the gun in his hand, he ordered the two girls to go to the bedroom where he committed sexual indignities on each. During a scuffle with Miss Rosenbaum, he struck her repeatedly on the head with the gun and then shot her in the face.

Defendant's first contention on this appeal is that the trial court erred in refusing his request for a continuance because 'a fair and impartial trial was impossible' by reason of 'highly inflammatory publicity.' Reference must be made to reports and stories by the news media which were released both before and after defendant was arrested for the robbery of Miss Rosenbaum.

Defendant was indicated on July 15, 1969, arraigned on July 17, and the date for trial was set for September 4. At defendant's request a continuance was granted, and the case was reset for trial on November 17, 1969. On that date defendant requested another continuance, and alleged that as an outgrowth of wide and extensive publicity by the news media concerning the alleged crimes committed by him, it would not be possible to obtain a fair trial.

In support of his request for a continuance defendant submitted three newspaper articles published in the St. Louis Post Dispatch on February 2, March 5 and March 8 of 1969. The articles pertained to sexual attacks by an unidentified colored man upon five white women, and in the article of March 8 the term 'phantom rapist' was used to refer to the assailant. Defendant also submitted two articles appearing in the same newspaper on April 18 and April 25, 1969. In the first of these articles it was reported that twenty victims of the 'phantom rapist' were to view a possible suspect, and in the second article it was reported that two additional women had been raped. In none of these articles was defendant's name used.

On May 21, 1969, the Post Dispatch carried an article in which it reported that defendant had been arrested and charged with forcible rape and theft, and that four victims had identified him as their assailant. Two radio stations and two television stations related substantially the same account on their news broadcasts, and at least one of the television announcers referred to defendant as the 'phantom rapist.'

On May 23, the news media again carried reports that defendant had been identified by three more women as their assailant, and by a pawnbroker as the one who had pawned some articles which had been stolen from a rape victim. In some of the reports reference was made to defendant as the 'phantom rapist.' On June 6, the Post Dispatch reported that the arrest of defendant had led to the release of another person previously suspected as the 'so-called phantom rapist.' Two days later the Globe Democrat reported that defendant, who was 'suspected of being the 'phantom' rapist' had been released on bail, and the newspaper carried an editorial which questioned police and court procedure whereby defendant was released. On June 18 both newspapers carried an article in which it was reported that defendant had been indicted on two counts of rape and theft, and in each he was referred to as 'suspected of being the 'phantom' rapist.'

On June 30, 1969, the newspapers reported that defendant had been arrested for the assault and robbery of Miss Rosenbaum, and similar stories appeared in the news broadcasts over the radio and television stations. These broadcasts made reference to defendant as the 'phantom rapist,' and the television stations showed his picture. On the following days the news media carried reports that defendant was to be arraigned, and that bond was not to be allowed. On July 1 and 8 the Globe Democrat carried editorial reports concerning defendant's activities, and the propriety of permitting a person accused of a heinous crime to be freed on bond. When defendant was indicted the news media made reference to that occurrence. In all, defendant presented 85 exhibits of reports by the news media concerning his activities, his arrest, and the charges against him.

At the conclusion of the hearing on the motion for a continuance, the trial court denied the continuance and noted that the publicity given to defendant began in May 1969 and continued until about July 9, 1969, but thereafter 'there has been no publicity of any significance attributed to this defendant.' The case was then assigned to Division 18 of the Circuit Court for the City of St. Louis for trial.

A motion to suppress evidence was subsequently filed, and during a hearing on that motion defendant filed an additional request for a continuance based on publicity by news media occurring on November 17 and 19, 1969. In the request the defendant asked the 'court to continue the pending cause and reset the matter for trial in this Division on December 15, 1969.' The trial court invited representatives of the news media to appear in court, and it read to those present a statement of policy declared by 'The Missouri Advisory Committee on Free Press-Fair Trial.' The court then granted the request for a continuance to December 15, 1969. On that day, without further request for a continuance, the court started empaneling the jury. After the peremptory challenges were made and the jury had been selected, but before the jury was sworn, counsel for defendant renewed his request for a continuance, and asked that the evidence taken in the assignment division be incorporated in the trial record in support thereof. He commented that 'a number of jurors * * * indicated a knowledge of these proceedings,' and that when 'you combine one with the other--the knowledge of the proceedings and the nature and extent of the publicity--it makes the trial of the defendant on a single charge impossible, for the simple reason that the news items contained the allegations of any number of offenses.'

The trial court has wide discretion in determining whether an accused is entitled to a continuance on the ground that pretrial publicity concerning the case or the accused has been such to prevent a fair and impartial trial. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, certiorari denied, 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427; Finnegan v. United States, 8 Cir., 204 F.2d 105, certiorari denied, 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347. The trial court is in a much better position to determine the propriety of a postponement because of publicity than an appellate court, and therefore 'it requires a very strong showing to induce the higher court to interfere.' State v. Golden, supra. In State v. Spica, Mo., 389 S.W.2d 35, 41, this court quoted with approval from 22A C.J.S. Criminal Law § 497, as follows: "As a general rule, and in the absence of extraordinary or unusual circumstances, public excitement or prejudice is not of itself a sufficient cause for the continuance of a criminal case, at least where such excitement or prejudice is not such as to prevent a fair and impartial trial. The mere fact that there has been widespread adverse pretrial publicity about accused does not, by itself, establish the reasonable probability that accused cannot obtain a fair and impartial jury at the trial so as to entitle him to a continuance. In the vast majority of such cases the proper procedure is not to postpone the trial, but to proceed to trial and to determine on the voir dire of the panel and the individual talesmen whether a fair and impartial jury can be selected." See also, United States v. Connelly, D.C., 129 F.Supp. 786. That was the procedure followed in this case, and based on what happened at the voir dire the trial court concluded that a further continuance was not justified.

Two other matters deserve comment. As noted, the trial court granted a continuance to December 15, 1969, the date requested by the defendant. Nothing of any particular consequence is shown to have happened after defendant suggested that date, and he is not entitled to complain on appeal that the court did not continue the case beyond the date proposed by him. Also, 'where a defendant contends that his conviction should be overruled on the ground that it was error to deny him a continuance, it has been held that...