State v. Brown

• Decision Date: 13 May 1980
• Docket Number: No. 61434,61434
• Citation: 599 S.W.2d 498
• Parties: STATE of Missouri, Respondent, v. Ronald BROWN, Appellant.
• Court: Missouri Supreme Court

Page 498

599 S.W.2d 498

STATE of Missouri, Respondent, v. Ronald BROWN, Appellant.

No. 61434.

Supreme Court of Missouri, En Banc.

May 13, 1980.

Rehearing Denied June 10, 1980.

Murry A. Marks, Clayton, for appellant.

John Ashcroft, Atty. Gen., Steven Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant, Ronald Brown, was convicted of second degree murder in the shooting death of Rickey Perkins, and was sentenced to 55 years' imprisonment under the Second Offender Act, § 556.280, RSMo 1969. Appellant seeks reversal of his conviction, alleging juror misconduct and alleging that the trial court erred in denying his motion to depose twelve witnesses at state expense. The case was transferred after opinion from the Court of Appeals, Eastern District, and we decide it as though on original appeal. Mo.Const. art. V, § 10. We affirm.

Shortly after midnight, in the early morning of February 2, 1975, Deborah Harris was watching television in the living room of the home of her parents, Arthur and Mildred Wallace, at 5410 West Florissant, St. Louis, Missouri. With Ms. Harris were her sister, Audrey Thomas; Deborah's boyfriend, Cadaryl Cobbs; and Rickey Perkins, a friend of Mr. Cobbs. No interior lights were on in the room other than the television. Ms. Harris was holding her infant son in her arms. Two other children were sleeping on a pillow on the floor. Audrey Thomas was lying on the floor in the adjoining dining room, which was connected to the living room by an open double doorway. Cadaryl Cobbs was seated on the couch. Rickey Perkins was seated in a chair by the front door.

A car stopped in front of the Wallace home and several people got out of the car. Bessie Turner and her daughters, June and Judy Turner, approached the Wallace house accompanied by appellant Ronald Brown, William McAfee, and two nieces of Ms. Turner, Jeanette and Jessie McAfee. Ms. Turner knocked on the Wallace's front door, and asked to speak to Deborah's mother. As Deborah walked away from the door to summon her mother, the Turners and appellant pushed open the door and entered the living room. Bessie Turner questioned Deborah, Audrey, Cadaryl and Rickey concerning the breakage of a window at the Turner home earlier in the evening. ¹

Deborah Harris testified that appellant and Rickey Perkins argued about the broken window, and Perkins denied breaking it. Appellant pushed Perkins against Ms. Harris, who was still holding her infant son, and she lost her balance. Deborah Harris testified that appellant then produced a gun from under his coat and shot Rickey Perkins in the chest. Ms. Harris testified that Perkins had not struggled with or struck appellant prior to the shooting. After the shot was fired, the Turners, McAfees and appellant promptly left the premises.

Audrey Thomas and Cadaryl Cobbs testified and corroborated the account of the incident given by Ms. Harris. Eleanor Wallace testified that she was in the bedroom and did not witness the shooting. Mildred Wallace testified that she had also been in another room, and that she was sleeping until she was awakened by the sound of a gunshot. She ran into the living room and looked out of the front door in time to see Bessie Turner and several others run across the front lawn.

St. Louis Police Officers Robert Froelich, Michael Roe and Gerald Behrman testified that they were called to the Wallace home on the morning of February 2, 1975. Froelich testified that he saw Perkins lying on the floor with a bullet wound in his chest, and that he spoke to Perkins. Froelich and Behrman interviewed the people who were present; Roe conveyed the injured Perkins to the hospital.

John J. Thomas, M.D., a pathologist employed by the Coroner's Office of the City of St. Louis, testified that he examined Perkins' body on February 3, 1975, and determined that Perkins' death was caused by a penetrating gunshot wound to the heart with massive hemorrhage into the left pleural cavity. Thomas testified that there were no powder burns around the entry wound in Perkins' chest. A lead bullet was recovered from the posterior chest wall of Perkins' body.

St. Louis Police Officer John Letz testified that he apprehended appellant at 1115 Tower Grove Avenue in St. Louis on February 3, 1976. St. Louis Deputy Sheriff Leslie Johnson testified that on June 18, 1976, while appellant was being transported from outstate on a bus, appellant escaped by diving out of the bus window. St. Louis Police Officer Olyn Hudspeth testified that he and a partner apprehended appellant at 3547 Martin Luther King Drive in St. Louis on July 19, 1976. Major Leonard T. Smith testified that he was in charge of the St. Louis City Jail on August 4, 1976, and that on that date appellant escaped from the jail. St. Louis Police Officer Richard Miller testified that he and several other officers apprehended appellant at 4352A Delmar in St. Louis on August 4, 1976.

Appellant called as his witnesses Jeanette McAfee, Jessie McAfee and William McAfee. Jeanette and William McAfee both testified that they had seen the shooting incident on February 2, 1975; that Perkins had first produced the gun and that Perkins struck appellant on the side of the head with the gun; that appellant fell, and as he struggled to his feet, Perkins prepared to strike appellant a second time; that appellant blocked the blow and the gun fell to the floor; and that as appellant and Perkins struggled for the gun, it went off, wounding Perkins. Jessie McAfee testified that she stood on the porch during the incident, but saw that appellant was bleeding from a cut on the left side of his head as he left the Wallace home. In rebuttal the state called St. Louis Police Officer Joseph Boul, and introduced into evidence photographs of appellant which Boul testified had been taken on May 16, 1969, June 12, 1974, and July 19, 1976. The pictures taken prior to the 1975 shooting incident showed that appellant had a scar on his left eyebrow.

The substitute information charging appellant with first degree murder was filed on July 5, 1977. Appellant was found to be indigent within the meaning of § 600.086, RSMo 1978, after a hearing, and Cornelius Lane was appointed to represent appellant at trial. Appellant instead was represented at trial by attorney Murry A. Marks.

On December 31, 1976, appellant filed a motion to take depositions in forma pauperis under Rule 25.41 (now Rule 25.12). Appellant alleged that it was "necessary and essential to his defense" that he depose twelve persons ² whom the state had endorsed as witnesses. Appellant further alleged that he was indigent and unable to pay for transcribing and typing such depositions. Appellant requested the court to order the circuit attorney for the City of St. Louis to produce the persons listed and to order that the expenses of taking their depositions be borne by the state. A hearing on the motion was held on January 5, 1977, and the motion was taken under submission. In the hearing, appellant's attorney Murry Marks suggested as an alternative to ordering that the state pay the cost of depositions of the twelve witnesses, that the trial court enter an order requiring that five of the witnesses Deborah Harris, Audrey Wallace, Cadaryl Cobbs, Mildred Wallace, and Eleanor Wallace be summoned to an interview in the office of the state's attorney at a time to be agreed upon by the state's attorney. Marks stated that he would "be happy to tape record for my records a conversation or interview with each of those persons, which will not cost the State any money." Mr. Marks insisted that the depositions were needed, but said "that as a reasonably viable alternative if you should deny my request for depositions in forma pauperis, that you consider my alternative oral suggestion and request an oral motion that you order the attendance of these persons so that they can at least be recorded on tape which is a reasonably viable substitute." On March 16, 1977, the trial court entered an order denying the motion to take depositions in forma pauperis. In denying the motion, the trial court appeared to rely on the fact that although § 600.150, RSMo 1978, permits state financing of services other than counsel on a showing of necessity and inability of the defendant to pay, the state authorizes such an order only where the defendant is represented by "appointed counsel." Since appellant was being represented by an attorney other than whom the trial court had appointed to represent him, the trial court appeared to hold that there was no statutory authority for the state-financed discovery requested. ³

The cause proceeded to trial on July 5, 6 and 7, 1977, and resulted in a verdict of guilty of second degree murder. On August 5, 1977, appellant filed a motion for new trial, alleging that a juror, later stipulated to be Georgia Goodrum had spoken about the case to friends of appellant, Cynthia Blackmon and Peggy Johnson, in the courthouse hallway, while the trial was in progress. In a hearing on appellant's motion for new trial held August 12, 1977, Blackmon and Johnson testified that Goodrum approached them during a recess in the trial, and asked whether they were relatives of appellant. Goodrum then allegedly stated: "Well, he's guilty, I can see it in his face." Blackmon testified that she told appellant about the conversation before the trial concluded, but that she did not tell appellant's attorney until after trial. Johnson testified that she did not tell appellant or appellant's attorney about the conversation until after the trial. At the conclusion of the hearing on appellant's motion for new trial, the trial court stated on the record that it found the testimony of Blackmon and Johnson concerning the alleged juror misconduct "is not worthy of belief, is not credible and the Court, therefore, rejects it." The court overruled appellant's motion for new trial upon the conclusion of the hearing on August...