State v. Carlos, 59420
| Decision Date | 14 March 1977 |
| Docket Number | No. 59420,59420 |
| Citation | 549 S.W.2d 330 |
| Parties | STATE of Missouri, Respondent, v. William H. CARLOS, Appellant. |
| Court | Missouri Supreme Court |
Robert G. Duncan, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, James W. Humphrey, Jr., Kansas City, for respondent.
This case is written on reassignment. Appellant William H. Carlos was convicted of murder in the first degree under section 559.010, RSMo 1969, in the circuit court of Jackson County and his punishment was assessed at life imprisonment. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Missouri Court of Appeals, Kansas City district. In that court the conviction was reversed and the cause was remanded but the cause was then transferred to this court by this court under Art. V, sec. 10, Mo.Const., 1 and we will determine the cause as on original appeal.
On September 17, 1973, Dr. Lynn Weller was killed at his home by one Patrick McGuire. According to evidence presented by the state, and particularly through the testimony of McGuire and one Robert North, appellant hired McGuire to kill Weller.
Appellant first asserts that "the trial court erred in denying defendant's motion for mistrial and or continuance when State's witness McGuire refused to identify his alleged accomplice in that said identity was crucial and essential to the defense and was required for a fair and impartial trial and said refusal denied the defendant's right to confront and cross examine the witnesses against him as guaranteed by Article I, Section 18(a) of the Missouri Constitution and the Sixth and Fourteenth Amendments to the United States Constitution."
Patrick McGuire, called by the prosecution, testified on direct examination that appellant hired him to kill Dr. Lynn Weller and that on the evening of September 17, 1973, he shot Dr. Weller in the house of Dr. Weller. On direct examination, McGuire testified that "somebody" went with him to Dr. Weller's house but refused to identify the person. On cross-examination, McGuire testified again that a man went with him to the Weller house and that the man "waited . . . in the area outside the house." After further cross-examination of McGuire in which he admitted that he entered into a plea bargain with the state and was sentenced to twenty-five years on a reduced charge of second-degree murder, the following transpired:
"Q Right. Now, another part of the bargain, was it not, was that you were not going to have to tell who was involved in this offense with you, the other man that was out there at the premises?
A I think, that was part of it, yes.
Q Now, who was the other trigger man? Who was the other man out there?
A I would rather not answer.
Q Well, I would rather you would. Answer the question. Who was out there?
A (No response.)
Q Are you refusing to say?
A I would rather not answer.
Q (By Mr. Duncan) You have refused to answer the question of who it was. I would ask this question: Where is that man at now?
A I don't know.
Q How did you contact him prior to the incident, the killing of Dr. Weller?
A I would rather not answer that.
Q Are you refusing to answer that?
A I am.
Q Did you pay him any portion of the money?
A No.
Q Has he been arrested?
A I don't know.
Q Did he ever have any contact with Dr. Carlos?
A No.
(The proceedings returned to open court.)
Q (By Mr. Duncan) Mr. McGuire, I would ask you now, who was the other man that was present, hiding in the bushes, on the night of September 17th, 1973 at 7320 Manchester, the home of or whatever the address is, and I believe that's correct the home of Dr. Weller, on the evening and there at the time that you killed Dr. Weller? What was that man's name?
A I would rather not answer.
Q The second question: How did you get in contact with that man, whoever he was, regarding being with you on the killing?
A I would rather not answer that.
A discussion was then had between the trial judge and counsel, the motions for continuance and mistrial were denied, and the parties proceeded with the trial.
The granting of a continuance or the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court and an appellate court will disturb the action of the trial court only where we find a clear abuse of discretion. State v. Cuckovich, 485 S.W.2d 16, 21-22, 23-24 (Mo. banc 1972). No one could tell when, if ever, McGuire might decide to answer the questions. Either action by the trial court would have aborted the trial. Neither action was justified nor practical under the circumstances. We find no abuse of discretion in this case.
Appellant contends in this court that "the trial court committed prejudicial plain error by failing to strike the testimony of State's witness McGuire after McGuire refused on cross examination to reveal the identity of his alleged accomplice to the murder for which appellant was charged."
When McGuire refused to identify the man who had accompanied him to the Weller residence at the time Dr. Weller was killed, defendant, in addition to asking that McGuire be punished for contempt, sought a mistrial or, in the alternative, a continuance until McGuire purged himself of contempt on the basis that his right of confrontation had been denied. The trial court held McGuire in contempt but denied a mistrial or a continuance. Defendant did not then or at any other time thereafter ask that all or any part of McGuire's testimony be stricken. In his motion for new trial, defendant raised no issue about being entitled to have McGuire's evidence stricken and made no complaint that the court should have stricken it on the court's own initiative. When this appeal was briefed for the court of appeals, no such contention was asserted by appellant and no reference to the plain-error rule was made. Clearly, the issue was not preserved.
In its opinion the court of appeals raised sua sponte the question of whether failure of the trial court to strike McGuire's testimony on its own initiative was plain error and held that it was. Of course, after the case was transferred here, defendant, prompted by the opinion of the court of appeals, now for the first time seeks relief on that basis.
Has there been such a miscarriage of justice, required by Rule 27.20(c), that we should convict the trial court of error in not acting on its own initiative to strike all or part of the testimony of McGuire?
In the first place, McGuire did not decline to testify as to whether his companion had had any dealings with defendant Carlos. After testifying on direct examination with reference to the contract made with him by defendant for the murder of Dr. Weller, McGuire was asked on cross-examination whether his companion had any dealings with defendant. He answered that he had not. Defendant did not ask any other questions on this subject. Hence, it is clear that defendant was not denied the right of cross-examination as to the murder contract. Clearly, he would not have been entitled to have the testimony of McGuire concerning the murder arrangements stricken even if he had asked therefor. He was not denied his right of confrontation and cross-examination thereon.
The other phase of McGuire's testimony pertained to the actual murder of Dr. Weller on the night of September 17, 1973. He testified that a companion accompanied him but denied that his companion had entered the Weller house or that he and his companion had gone to the house for the purpose of robbery. McGuire's testimony was in conflict with that of Mary Graves who testified that the other man had entered the house with McGuire. McGuire was cross-examined extensively by counsel for defendant and answered all questions regarding these matters except those which sought the name of his companion and how he had contacted him.
It is defendant's theory that, if he had been furnished the name of McGuire's companion, he might have been able to impeach McGuire's testimony by showing that robbery was their motive and possibly that McGuire was not even present and did not kill Dr. Weller.
At and prior to the time this case was tried, the state suspected that one George Peters was the companion of defendant and it had procured a warrant for his arrest in connection with the Dr. Weller matter. Despite a nationwide search, it had been unable to find him at that time. The transcript disclosed that counsel...
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