State v. Brooks, WD
|693 S.W.2d 211
|07 May 1985
|STATE of Missouri, Respondent, v. Anthony L. BROOKS, Appellant. 35708.
|Court of Appeal of Missouri (US)
James W. Fletcher, Public Defender, Sean D. O'Brien, Asst. Public Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before LOWENSTEIN, P.J., and NUGENT and BERREY, JJ.
A jury found the defendant Anthony Brooks guilty of second degree robbery; he was sentenced to eight years. Only sufficient facts will be presented to provide background for Brooks' two points on appeal. The victim, a Mr. Sample, testified that after slowing down to make a u-turn near 33rd and Troost, in Kansas City, a woman walked in front of his car, went to the passenger's side and asked for a cigarette. Before he could pass one through the open window, the woman opened the door and got in. First she asked if Sample would like a date; upon a negative reply the woman said she had to have some money. The victim was struck on the face, then the woman got Sample's wallet, and then fled from the car on foot. Sample pursued in his car a few blocks, and then on foot until he saw a woman wearing the same coat as his assailant. During this scuffle Sample got hit on top of the head then grabbed at the woman's hair, and to his surprise he was left holding a wig. He realized now his assailant was a man, not a woman. Sample also pulled off the man's rabbit-fur patchwork coat, and picked up a purse the man dropped as he managed to run away.
At trial one police officer testified he had seen Brooks, a transvestite, wearing the rabbit-fur coat on another occassion. A second officer testified he recognized both the coat and purse as belonging to Brooks. The victim positively identified Brooks as the robber. Brooks had two witnesses, both transvestites, testify they were with Brooks in a motel at the time of the robbery. These witnesses also said the fur coat and purse belonged to Freddie Caldwell, also a transvestite who did not testify. A photograph was admitted into evidence showing Caldwell wearing the coat.
Brooks' first point on appeal concerns further testimony from one of these two witnesses, who had been his roommate, that Freddie Caldwell had admitted to committing the robbery. Brooks contends this testimony falls into the admission against penal interest exception to the hearsay rule. The trial court sustained the state's objection that an improper foundation had been laid for the witness to be questioned as to the out of court declaration of Caldwell.
At one time declarations against penal interests were not admissible in criminal proceedings in Missouri. State v. Brown, 404 S.W.2d 179, 185 (Mo.1966). Then the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), modified the rule to allow in some of these declarations. The Missouri Supreme Court followed the Chambers decision in State v. Turner, 623 S.W.2d 4 (Mo. banc 1981). Cases have focussed on two basic requirements before such hearsay is admissible: 1) the declarant is unavailable and 2) there is a "substantial indicia of reliability." Id. at 9. Both prongs of this test must be satisfied for the declaration to be allowed.
In the present case the trial court specifically excluded the testimony on the grounds that Brooks had not proven that Caldwell was unavailable. Unavailability includes "death, insanity, illness, absence from the jurisdiction or supervening incompetency through interest." State v. Grant, 560 S.W.2d 39, 43 (Mo.App.1977). Unavailability can also be established if the declarant is at trial, but refuses to testify by asserting a fifth amendment privilege. Turner, 623 S.W.2d at 8, n. 4. In an offer of proof Brooks produced an investigator who testified he made two unsuccessful attempts to locate Caldwell, the last being over two months prior to the trial. Another witness said Caldwell's grandmother said he had been in a Huntsville, Texas jail. The witness who was attempting to testify knew Caldwell had "some robberies pending in Fort Worth." The trial court gave Brooks every opportunity to present other evidence in the offer of proof, but it wasn't until after the court sustained the objection that Brooks' attorney tried to interject that he had attempted to call Huntsville, Texas to find out if Caldwell was in Fort Worth, and had received a negative answer. The next day Brooks moved to reopen the issue with evidence that his investigator had now confirmed that Caldwell was indeed in prison in Huntsville, Texas serving a five year sentence for armed robbery.
The Missouri Supreme Court was careful to limit the rule of Chambers to the facts presented there, recognizing "the danger inherent in opening the door to extrajudicial confessions made by one not a party to the proceeding." Turner, 623 S.W.2d at 9. In Chambers the declarant was present in the courtroom and could have been cross-examined by the state. The declarant had made second confessions, including a sworn statement. The court pointed out that the declarant's presence in the courtroom essentially defeated the state's argument for retention of the penal-interest rule. Chambers, 410 U.S. at 301, n. 21, 93 S.Ct. at 1049, n. 21.
Brooks either knew or should have known before trial that Caldwell was in a Texas prison. Brooks should then have taken the step of filing a motion for habeas corpus ad testificandum. While issuance of these writs rests within the trial court's discretion, State v. Hines, 645 S.W.2d 88 (Mo.App.1982), the defendant at least establishes a good faith attempt to produce the declarant. If the declarant is produced, but refuses to testify, then, as stated earlier, unavailability is again established. In this case there is a real doubt as to Brooks' good faith attempt to locate Caldwell, therefore the trial court did not err in refusing to admit this declaration. State v. Carroll, 629 S.W.2d 483 (Mo.App.1981), does not apply. It was there "substantially conceded by the prosecutor", that the witness was unavailable. Id. at 486.
Since the trial judge's ruling is being affirmed on the grounds it stated, the court need not address in detail whether there was substantial indicia of reliability or ring of truth to support Caldwell's declaration if he had in fact been unavailable. This point is denied.
Brooks' second point concerns the trial court's refusal to strike for cause one of the venire persons who indicated she felt a defendant should testify in his own behalf. Following is the pertinent part of the voir dire record:
Missouri courts have long held that denial by a trial court of a legitimate request by an accused to excuse for cause a partial or prejudiced venireperson, constitutes reversible error. State v. Morrison, 557 S.W.2d 445, 446 (Mo. banc 1977); State v. DeClue, 400 S.W.2d 50 (Mo.1966). The Missouri Supreme Court has held...
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