State v. Brownridge, 48607
| Decision Date | 09 November 1970 |
| Docket Number | No. 48607,No. 1,48607,1 |
| Parties | STATE of Missouri, Respondent, v. Robert BROWNRIDGE, Jr., Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
James M. Byrne, St. Louis, for appellant.
On February 12, 1962 this Court affirmed the judgment of conviction of forcible rape and 99-year sentence imposed upon Robert Brownridge, Jr., State v. Brownridge, Mo.Sup., 353 S.W.2d 715. On April 13, 1970 this Court set aside the judgment affirming the conviction under the decisions in Bosler v. Swenson, 8 Cir., 363 F.2d 154 and Swenson v. Donnell, 8 Cir., 382 F.2d 248, in order to enable appellant to be represented by counsel on his appeal. Counsel was appointed by the Circuit Court to represent appellant. Both appellant and the Attorney General have filed briefs and the appeal is now before us on this new submission.
For a recital of the evidence in the case reference is made to the report of our first opinion. Appellant has briefed six points.
Appellant renews his contention that he was deprived of constitutionally protected rights by reason of the fact that the venire from which the petit jury was selected was comprised of 56 Caucasians and only 4 Negroes, an unfair and unequal proportion of the Negro population of the City of St. Louis. For the reasons given and under the authorities cited in our original opinion, proportional representation is not required. Only if he was deprived by design of the chance of having Negroes on the jury would appellant's constitutional rights have been invaded. State v. Mooring, Mo.Sup., 445 S.W.2d 303, 305(2). The burden of establishing discrimination is on the defendant. State v. Merridith, Mo.Sup., 433 S.W.2d 578, 579(2). There is nothing in this record to show how the venire was selected. The suggestion of systematic exclusion was never raised in the trial court by motion to quash the venire, oral objection to proceeding to trial, in the motion for new trial, or otherwise. No evidence was offered to demonstrate unlawful composition of the panel based upon systematic exclusion. The point therefore has not been preserved for appellate review.
Conceding this, appellant suggests that nevertheless his constitutional rights 'may well have been very seriously violated' and asks for a remand for the purpose of taking steps in the trial court to ascertain the facts and to secure a judicial determination based upon the possibility that there was a purposeful and systematic exclusion of Negroes from the venire in 1961. Judgments are not reversed by appellate courts on speculation or prospects but only for errors committed by the trial court against appellant, materially affecting the merits of the action. Civil Rule 83.13(b), V.A.M.R., which by virtue of Criminal Rule 28.18 governs practice and procedure in criminal cases in the Supreme Court. No error having been demonstrated this Court will not reverse and remand for the purpose of exploring the possibility that the venire was not properly constituted.
Appellant reasserts his contention that sentencing appellant to 99 years' imprisonment was cruel and unusual punishment, in violation of Art. I, § 21, Constitution of Missouri, 1945, V.A.M.S. This contention cannot be sustained for the reasons given and under the authorities cited in our original opinion.
Appellant urges, however, that two codefendants received 15-year sentences on pleas of guilty and that a 99-year sentence for the same crime violates Art. I, § 2, of the Constitution of Missouri, 1945, vouchsafing to all persons equal rights under the law. This point was not preserved in the motion for new trial and therefore is not preserved for appellate review. State v. Nolan, Mo.Sup., 423 S.W.2d 815. Had it been properly preserved it would have availed appellant nothing under the ruling in State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 23: See also State v. Eckenfels, Mo.Sup., 316 S.W.2d 532, in which an accomplice with a prior record was sentenced to 5 years, whereas Eckenfels was given life imprisonment. This was held not to establish that the sentence inflicted upon Eckenfels was cruel and unusual.
Appellant urges the illegality of his arrest in East St. Louis, Illinois because made without a warrant and without probable cause. Conceding that the question was not raised below, counsel suggests that serious questions of legality may be involved 'if the arrest was made without a warrant and without probable cause.' Appellant also on this appeal, for the first time, questions the legality of the removal of appellant from the State of Illinois to the State of Missouri. Appellant admits that the record is silent on these questions; that no pretrial motions were filed with respect thereto, and that no objections to the manner or circumstances of the arrest were made by counsel below. Nevertheless, appellant asks for remand for 'an effective determination' of whether his arrest and subsequent removal to Missouri were lawfully accomplished.
Appellant had the duty to take appropriate affirmative action in the circuit court to register his objections concerning, and to establish the illegality of, the arrest and removal. Having failed to take any action in the circuit court appellant waived these objections and cannot fault the circuit court, which has had no opportunity to pass upon these questions. Under recognized appellate procedure appellant is not entitled to a second chance to raise these points.
Appellant asserts error in admitting in evidence the loaded pistol which was found on his person in a search conducted at the time of arrest, on the ground that the search was illegal. No motion to suppress having been filed before trial this point has not been preserved for appellate review. 'The procedural rules of this state, with an exception not here material, require that the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial.' State v. Fields, Mo.Sup., 442 S.W.2d 30, 33(2). Defendant must also present evidence to sustain his contentions, State v. Holt, Mo.Sup., 415 S.W.2d 761, and keep the question alive by timely objection. State v. Tunnell, 302 Mo. 433, 259 S.W. 128; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, and by inclusion in his motion for new trial. State v....
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Newman v. State of Missouri
...robbery in the first degree shall be punished by imprisonment in the penitentiary for not less than five years. See, Missouri v. Brownridge, 459 S.W.2d 317 (Mo.Sup.1970); Missouri v. Eckenfels, 316 S.W.2d 532 (Mo.Sup. 1958); Newman v. Missouri, 481 S.W.2d 3, 7 The record shows that the sent......
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State v. Preston
...panel. "Only if a defendant is deprived By design of having blacks on the jury are his constitutional rights invaded. State v. Brownridge, 459 S.W.2d 317, 318 (Mo.1970)." State v. Johnson, 566 S.W.2d 510, 514(11) (Mo.App.1978). See also State v. Pittman, 569 S.W.2d 277, 280(4) (Mo.App.1978)......
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State v. Purnell
...for appellate review. State v. Nauman, 592 S.W.2d 258 (Mo.App.1979); State v. Johnson, 574 S.W.2d 42 (Mo.App.1978); State v. Brownridge, 459 S.W.2d 317 (Mo.1970); State v. Berry, 609 S.W.2d 948 (Mo. banc 1980); State v. Valentine, supra; State v. Daniels, 487 S.W.2d 465 (Mo.1972); State v. ......
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