State v. Cook, 53909

• Citation: 440 S.W.2d 461
• Decision Date: 14 April 1969
• Docket Number: No. 1,No. 53909,53909,1
• Parties: STATE of Missouri, Respondent, v. Gerald Henry COOK, Appellant
• Court: United States State Supreme Court of Missouri

Page 461

440 S.W.2d 461

STATE of Missouri, Respondent, v. Gerald Henry COOK, Appellant.

No. 53909.

Supreme Court of Missouri, Division No. 1.

April 14, 1969.

Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for respondent.

Richard C. Hart, St. Louis, for appellant.

HIGGINS, Commissioner.

Appeal from denial of Motion to Vacate Judgment and Sentence. Criminal Rule 27.26, V.A.M.R.

Appellant went to trial April 11, 1966, and, on April 13, 1966, was convicted by a jury of forcible rape. The court assessed his punishment at 15 years' imprisonment in custody of the Department of Corrections. Sentence and judgment were rendered accordingly, Sections 559.260 and 556.280, V.A.M.S., and the judgment was affirmed, State v. Cook, Mo., 412 S.W.2d 441. Appellant is confined in the Missouri state penitentiary.

Appellant's motion was filed February 18, 1968; he was accorded an evidentiary hearing April 17, 1968; and the court filed findings of fact, conclusions of law, and judgment overruling the motion May 3, 1968.

On June 13, 1965, appellant, together with Frank Downey and Ronald Brower, was arrested and all three were charged with forcible rape of Jenny Savisky, a 22-year-old blind woman. Downey and Brower pleaded guilty to the rape and were sentenced to 3-years' imprisonment.

Appellant testified at the evidentiary hearing on his motion. According to him, he was taken to a St. Louis police station following his arrest, and he made several requests for the right to contact an attorney during his first forty-five minutes at the station. His requests were refused and he was taken to an interrogation room where Jenny Savisky was seated with three uniformed policemen and her mother and sister. Three other policemen were in the room. One officer told appellant to state his name, address, and the name 'Jenny,' after which followed whispered conversation between an officer and the prosecutrix.

On April 9, 1966, appellant discharged his appointed lawyer, Mr. Barnard, and his employed lawyer, Mr. O'Hanlon, entered his appearance. The case was tried beginning April 11, 1966, by Mr. O'Hanlon. Appellant wished during the trial to have Frank Downey and Ronald Brower brought from the penitentiary to testify in his defense. According to him, the court refused this request on the ground the state was then presenting its case. He acknowledges that Mr. O'Hanlon advised against using the testimony of these witnesses.

Appellant's motion refers to a number of instances in which the trial court interrogated witnesses and made comments in connection with his trial rulings.

Appellant also refers to the court's impressions in connection with the sentence imposed.

The trial transcript was also available as evidence at the hearing.

This appeal is briefed by both appointed counsel and appellant pro se.

As briefed by counsel, appellant's points 1 and 2 charge the court with an abuse of discretion in failing to disqualify for the 27.26 hearing on grounds of bias and prejudice, and with error in finding that the sentence imposed was not 'vindictive and vengeful.' Counsel refers to colloquy in chambers following trial and at the time of sentencing where the court indicated its feeling that a sentence longer than the 15 years assessed following the verdict might be considered except for the short sentences the codefendants received on their guilty pleas. The court also mentioned his doubts on the credibility of appellant. The argument is that these observations indicated an existing impossibility of a fair hearing on the motion calling for the court's self-disqualification. Urged particularly is the court's refusal to believe appellant's asserted requests for counsel upon his arrest.

Suffice to say that Criminal Rule 27.26, V.A.M.R., requires that the motion to vacate a sentence be filed 'in the court which imposed such sentence.' Therefore, in this case, the matter necessarily came before Judge Aronson and, there being no showing that Judge Aronson had an interest in the case suggesting his self-disqualification, he remained in the case absent disqualification under the applicable rule. Civil Rule 51.06, V.A.M.R.

With respect to the alleged excessive punishment, suffice to say that it is within that prescribed by Section 559.260, supra, and there can be no complaint of excessive punishment when it is within limits imposed by law. State v. Garton, Mo., 396 S.W.2d 581, 582(3).

Under counsel's point 3 and appellant's point A, it is contended that appellant was deprived of his right against self-incrimination when, upon his arrest, he was asked to and did speak his name, address, and the name 'Jenny' in the presence of Jenny and police officers, after which Jenny identified appellant as one of her assailants. This contention is answered by, and is denied under United States v. Wade, 388 U.S. 218, 222--223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149: '* * * compelling (the suspect) to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the (suspect), was not compulsion to utter statements of a 'testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. * * * the distinction to be drawn under the Fifth Amendment * * * is one between an accused's 'communications' in whatever form, vocal or physical, and 'compulsion which makes a suspect or accused the source of 'real or physical evidence." * * * 'both federal and state courts have usually held that * * * (the privilege) offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.' * * * None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.'

Appellant urges also under this point as otherwise held in United States v. Wade, supra, that the court should have excluded any evidence of this identification at trial because the 'lineup' was conducted without counsel for the suspect present. The difficulty with this contention is that Stovall v. Denno, 388 U.S. 293, 296, 87 S.Ct.1967, 18 L.Ed.2d 1199, specifically holds that the exclusionary rules of United States v. Wade, supra, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after June 12, 1967. State v. Merridith, Mo., 433 S.W.2d 578, 579(1); State v. Moore, Mo., 435 S.W.2d 8, 12--13(7). Cook's lineup identification took place June 13, 1965, and he was convicted April 13, 1966. Perhaps in recognition of the inapplicability of the requirement of counsel at a lineup of United States v. Wade, supra, counsel and appellant present arguments which raise the question whether appellant 'is entitled to relief on his claim that in any event the confrontation * * * was so unnecessarily suggestive and conductive to irreparable mistaken identification that he was denied due process of law. * * * a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966).' Stovall v. Denno, supra, 388 U.S. 293, l.c. 301, 87 S.Ct. l.c. 1972. This question involves ascertainment of the 'totality of circumstances.' State v. Blevins, Mo., 421 S.W.2d 263, 267(2).

The totality of circumstances surrounding the victim's identification of appellant as one of her assailants contains more than the evidence previously stated. Officer Nugent testified that not only appellant, but also Brower, Downey, and a fourth man, Lester Greer, stood in the presence of Jenny and gave name, address, and spoke 'Jenny.' This provided some basis for voice comparisons, State v. Moore, supra, 435 S.W.2d l.c. 13(9), the absence of which was condemned in Palmer v. Peyton, supra. The victim, prior to the assault, had been with her sisters where several men were talking to them. This group of men included the victim's assailants, and she heard their voices several times. She knew the sequence in which they later assaulted her and she was able accurately to describe and distinguish them by height. The sisters who had sight placed appellant and the others at the scene of the crime and the mother saw appellant emerge from the scene after the commission of the crime. One of the sisters was taken from the scene by these same men and Cook said to her that she 'was the next one to get raped.' This 'totality of circumstances' is not demonstrative of an unfair trial. Stovall v. Denno, supra, 388 U.S. l.c. 301--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247; State v. Keeney, Mo., 425 S.W.2d 85, 90(7); State v. Reeder, Mo., 436 S.W.2d 629.

Counsel complains in point 4 that the court erred in not finding that its comments, suggestions, and explanations during trial were prejudicial to appellant, thereby denying him a fair trial. Counsel contends that the mere numerical total (109) of such interjections is of itself detrimental. Counsel complains specifically of a number of propositions put to witnesses by defense counsel in the form of statements using an inflection of the voice to suggest interrogation and to which the court on each occasion observed accurately that such were not questions. He complains also of questioning by the court and the court's direction to defense counsel upon objection by the prosecution not to refer to the grown men involved in the rape as 'boys.'

The court was, perhaps, technical and obvious in its supervision of this trial, but the suggested matters do not demonstrate an unfair trial. The conduct of this court was well within the rule of State v. Grant, Mo., 394 S.W.2d 285, 287--288(1--5): 'One of the...