State v. Brooks, 34852

• Decision Date: 27 December 1973
• Docket Number: No. 34852,34852
• Citation: 513 S.W.2d 168
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Johnnie Lee BROOKS, Appellant-Defendant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 168

513 S.W.2d 168

STATE of Missouri, Plaintiff-Respondent, v. Johnnie Lee BROOKS, Appellant-Defendant.

No. 34852.

Missouri Court of Appeals, St. Louis District, Division Two.

Dec. 27, 1973.

Motion for Rehearing or Transfer to Supreme Court Denied

Feb. 11, 1974.

Application to Transfer Denied May 8, 1974.

Richard C. Wuestling, III, Wayne B. Wright, and Don R. Wintermeyer, St. Louis, for appellant-defendant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, David Robards, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Henry Fredericks, and Thomas C. Muldoon, St. Louis, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant appeals from his convictions by a jury of assault with intent to maim with malice, and robbery in the first degree. The court found defendant to be a second offender and sentenced him to 55 years on the assault charge and 15 years on the robbery charge, to run concurrently.

The assault charged was the vicious, detestable and unprovoked blinding of a seventeen year old girl, Wilma Chestnut. The crime and subsequent trial of defendant generated considerable press coverage, both locally and nationally. Defendant raises eight claims of error.

Since one of those claims is the lack of substantial evidence to support the verdicts, we review the testimony in the light most favorable to the State. On September 23, 1971, defendant in the company of three other persons went to visit Miss Chestnut at her cousin's apartment where she was babysitting. One of the defendant's companions, Ronald Clower, was known to Miss Chestnut. The other two companions were Ernest Crain and Earl Harper. Crain, Harper and Brooks were unknown to the victim. Crain and Harper identified themselves by aliases; Brooks used his proper name. Following this initial meeting all four men left. Crain, Harper and Brooks discussed returning and stealing from the apartment a television and tape deck which they had observed. These three then returned and were admitted to the apartment by Miss Chestnut. There is considerable discrepancy between the testimony of Miss Chestnut and Earl Harper as to the number of times the three were in the apartment and who left and reentered the apartment during the afternoon. As with other inconsistencies in the record, it is unnecessary to discuss these discrepancies, other than to note they existed. Eventually, Brooks grabbed Miss Chestnut around the neck and choked her, and Earl Harper put his hand on her face. She fainted. Brooks, Harper and Crain then took a record player and tape deck and left the apartment. Harper testified that, upon reaching Brooks's car, he and Crain entered the car and Brooks stated he was going back up and would meet them later on a nearby street. Shortly thereafter Brooks met the other two and Harper observed blood upon Brooks's hand. In response to an inquiry by Harper as to whether he has killed Miss Chestnut, Brooks responded:

'You know that glass I was drinking water out of? . . . Well, I took it in the bathroom and broke it and stabbed her eyes out . . . Won't nobody be bothered. She don't be looking at no pictures.'

Miss Chestnut remembered nothing after being choked until she regained consciousness and was unable to see. Both eyes were cut and the prognosis for any return of vision is very poor. Crain has not been located since the occurrence an did not testify. Miss Chestnut testified that the man introduced to her as Johnny Brooks was the man who choked her, although there was evidence that the verbal description she gave more closely fitted Crain than Brooks. Clower testified that the man he introduced as Brooks to Miss Chestnut was the defendant. Brooks presented an alibi defense.

If believed by the jury, the testimony of Clower, Miss Chestnut and Harper was sufficient to support a verdict against defendant on the robbery charge. If believed, the testimony of Harper was sufficient to support a verdict against defendant on the assault with intent to maim charge.

Defendant attacks the court's refusal to order police officers to be interviewed by defendant's counsel in the absence of representatives of the prosecutor's office. Defendant took the depositions of these officers (or waived the taking in one case) so there is no prejudice shown. The same is true of defendant's claim that the court erred in denying his motion to require the State to pay the cost of depositions. Defendant points to no witness whose deposition he did not take because of expense. It appears that defendant's appointed counsel bore the expense of depositions on behalf of defendant, and whatever hardship was engendered was to counsel, not defendant.

Defendant also contends that, although Rule 24.04, V.A.M.R. authorizes joinder of two distinct felonies in one indictment, it does not authorize conviction on both offenses. State v. Johnson, 499 S.W.2d 371 (Mo.1973) approves conviction on both offenses charged jointly under Rule 24.04. The joinder was not improper here. The rule authorizes joinder of two or more offenses, even though separate and distinct '. . . which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan . . ..' The blinding of Miss Chestnut was, under the State's evidence, to prevent her identification of the robbers. Both crimes were part of a common scheme--the robbery.

We turn now to the more serious points raised by defendant. Although delineated as four points, they can be summarized as (1) a lack of due process because of the failure of the State to make discovery and (2) the erroneous refusal of the trial court to give a cautionary accomplice instruction when requested.

As the State admits in its brief: 'The only testimony implicating the appellant in (the) assault is Harper's.' Although corroborated as to the robbery, it was also the primary evidence establishing defendant's participation in that crime. Harper was sixteen at the time of trial. Following his arrest he was processed under the juvenile code and certified by the judge of the juvenile court to stand trial as an adult. He was charged by indictment with exactly the same offenses as defendant, both crimes carrying a maximum sentence of life imprisonment. He retained a lawyer, Gerald Rabushka, to represent him. On January 10, 1972, (more than four months prior to Brooks's trial) Mr. Rabushka and Henry Fredericks, the special prosecutor handling the Brooks's case, discussed Harper's situation.

Mr. Rabushka's testimony concerning this meeting given at the hearing on defendant's motion for new trial, was:

'Mr. Fredericks stated that he desired Earl Harper to testify in the case against Johnnie Lee Brooks, and told me that all charges against Mr. Harper would be dropped immediately prior to any testimony. He thought that he would have to do this in order for Mr. Harper to testify, and he said that after Harper testified, that the Circuit Attorney's Office would then reinstate the stealing charge so as to process him; and indicating to me, further, that if Mr. Harper would then plead guilty to the stealing charge, that he would receive probation.'

Mr. Fredericks's recollection of the conversation was:

'Well, I don't know whether or not the charges would be dropped. If he is on the same file, if I understand the law, the charges would have to be dropped for him to testify; but I don't know how Ryan (the Circuit Attorney) will look at that.'

On January 11, 1972, Earl Harper (as well as 10 other persons) was endorsed as an additional witness in the Brooks case.

On April 6, 1972, immediately prior to the deposition of Earl Harper (taken by defendant's attorney) Mr. Rabushka and Mr. Fredericks had another conversation regarding Harper's testimony.

Mr. Rabushka's testimony was:

'This took place immediately prior to Mr. Harper's deposition, and the discussion again was that the robbery and the maiming charges would be dismissed; that in place of the robbery charge, an assault charge would be substituted; that the Circuit Attorney's Office would recommend one year in the Workhouse, and that they would also recommend probation . . ..'

Mr. Fredericks recalled the meeting as follows:

'I believe the first thing I said was, 'I hope he testifies in deposition.' That was the first thing I said. And secondly, I believe I said, 'Well, we will soon find our.' And then, there was some conversation as to the charges against him, and I told Mr. Rabushka that I would recommend to Ryan that if he testifies in deposition, the way that I understand that his testimony would be, then under the law and under the facts of the situation, I would recommend that the assault charge be dropped and that the defendant be permitted to plead on assault with intent to rob . . . It was only the defendant Brooks who went back in; and on that basis, I told him, 'I hope he testifies. There is one way to find out: let's go down and see if he testifies, as I believe he will; then I will recommend that the assault charge be dropped. '' (Emphasis supplied).

Mr. Rabushka testified that Fredericks promised his client probation on both January 10 and April 6. Mr. Rabushka testified he did not inform Harper of these conversations but told Harper's mother and stepfather on several occasions.

During Harper's deposition, with Rabushka and Fredericks present, Harper was questioned extensively about any deals offered for his testimony or any discussions of reduction of sentence or of immunity. Harper answered negatively. Mr. Fredericks made no correction of the testimony and at no time thereafter advised defendant or his counsel of his discussions with Rabushka.

Prior to Harper's testimony before the jury, the court held a hearing outside the presence of the jury to determine Harper's competency to testify in view of his status in being charged with the same crimes as Brooks arising out of the same transaction....