State v. Crow

Decision Date11 September 1972
Docket NumberNo. 56529,No. 2,56529,2
Citation486 S.W.2d 248
PartiesSTATE of Missouri, Respondent, v. William Anderson CROW, Jr., Appellant
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

W. H. S. O'Brien, Festus, and Hale W. Brown, Kirkwood, Court-Appointed attorneys of record for appellant.

FRED E. SCHOENLAUB, Special Judge.

Defendant was convicted of first degree murder and his punishment assessed by a jury at life imprisonment. Section 559.010, RSMo 1969, V.A.M.S. Motion to set aside the verdict and direct a verdict of acquittal or in the alternative to grant a new trial was overruled. Defendant asserts twenty points on this appeal.

Defendant was charged as a result of the strangulation death of Everett R. McGuire on the night of July 15, 1969, or in the early morning of July 16, 1969. McGuire's body was found by an acquaintance on the morning of July 16, 1969, at the bottom of the stairs leading from McGuire's kitchen to his basement, his head badly beaten, and with an electric cord binding his hands behind his back and another electric cord wrapped around his neck with a tire iron attached tourniquet fashion. Although there were multiple scalp wounds, none of them had caused brain injury which would result in death. The cause of death was established as being from 'strangulation by ligature.'

Citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, appellant first contends the jury was 'illegally qualified on the issue of the death penalty,' by exclusion from the jury of all veniremen who had any moral, religious or conscientious scruples against imposition of the death penalty. Defendant argues that a jury so drawn 'must of necessity be recognized as a 'tough jury', as a 'jury of less mercy', as a 'conviction prone jury'.' Witherspoon v. Illinois has numerous times been held to have no application when the jury does not assess the death penalty. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; State v. Pollard, Mo., 447 S.W.2d 249; State v. Franklin, Mo., 459 S.W.2d 314; State v. Quinn, Mo., 461 S.W.2d 812; State v. Richards, Mo., 467 S.W.2d 33; State v. Haynes, Mo., 482 S.W.2d 444 (adopted July 17, 1972). Appellant's 'hanging jury' argument was considered and rejected by this court in State v. Quinn, supra.

Citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, appellant next contends his constitutional rights were violated by the police in obtaining a statement from him. Appellant was arrested by Olivette City Police Captain Robert Cole on July 18, 1969, in Normandy, Missouri, at approximately 4:15 in the afternoon. He was booked in Normandy and taken by car to Hillsboro, Missouri. Captain Cole rode in the back seat with appellant. During the trip Captain Cole advised appellant of his rights and asked him if he wished to make a statement. Appellant said he did not and no further questioning was conducted during the trip. Upon arriving at the Sheriff's Office in Hillsboro, appellant was turned over to Sheriff Buerger. The evidence conflicted as to the time questioning began, but it was commenced by Captain Robert Lowery of the Florissant, Missouri, police department, during which time he was permitted to talk with his mother, brother, and a close friend, Michael Hose. Appellant was again advised of his constitutional rights. He was permitted to talk by telephone to an attorney, after which he stated he had been advised by the attorney not to say anything. When again asked if he wanted to give a statement he said he would have to think about it. A few minutes later he indicated that he preferred to talk to Captain Cole. Captain Cole again advised appellant of his rights and asked appellant to read and sign a waiver of those rights. Appellant signed the waiver and then tore it up. He then changed his mind, signed another waiver of rights form, and gave a statement on tape to Captain Cole.

The tape was admitted in evidence, but because of its poor quality it was not played for the jury. Captain Cole was, however, permitted to testify from memory concerning the statement. He testified that appellant told him he took a tire iron from Mike Hose's car and put it beside McGuire's porch before going in. He told of homosexual activities between himself and McGuire, followed by a dispute concerning payment for his services. He stated he then went outside, got the tire iron, came back to the door and told McGuire he wanted to use the telephone. When McGuire turned his back and started back into the house he struck him in the back of the head with the tire iron. McGuire turned, started scuffling with him, he dropped the tire iron, recovered it and again struck McGuire, knocking him unconscious. He then felt McGuire's pulse and found him to be alive. He tied McGuire's hands behind his back, took McGuire's billfold, car keys and checkbook. He tried to call Mike Hose, but was unable to reach him. He checked McGuire's automobile, came back inside, packed two suitcases with antique guns, a clock, and other items, checked McGuire's pulse again, and left.

In Miranda v. Arizona, supra, the Supreme Court of the United States held: 'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.' Interrogation of appellant did not cease even though at three different times he indicated that he wished to remain silent. Such action violated appellant's constitutional rights, and the trial court erred in admitting the statement in evidence.

Defendant, however, voluntarily and of his own free will elected to testify in his own behalf. On direct examination he testified that he left the tire iron by McGuire's porch before going in. He further testified concerning his homosexual activities with McGuire and the argument that followed. He then left, decided to go back and call for someone to pick him up, taking the tire iron with him because of his fear of McGuire. He told McGuire he was leaving and wanted to get clothing he had left there since he had started 'tricking' with McGuire some six months earlier. McGuire said he wasn't going to let him leave and turned toward a desk where appellant knew he kept three guns. He hit McGuire with the tire iron, McGuire turned and they started scuffling. McGuire started strangling him, he lost the tire iron, got away from McGuire, picked up the tire iron and hit McGuire again. McGuire went down. He checked McGuire's pulse and found it to be strong and steady. He further testified that McGuire was not unconscious, but didn't really know what was going on. He pulled a cord from an applicance and tied McGuire's hands behind him to prevent a further attack. He then packed his belongings, took McGuire's wallet, checked McGuire's pulse several times, and left in McGuire's automobile.

This testimony was nearly identical to and more detailed than the statement given to Captain Cole. Appellant has not shown any prejudice from the admission of Captain Cole's testimony. Any error in its admission in evidence was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; State v. McGee, Mo., 447 S.W.2d 270.

In Point 3 appellant contends he should have been permitted to show the capacity for violence possessed by the deceased. Appellant's defense was that he did not kill McGuire. He testified that he struck McGuire only twice and left him with his hands tied behind him but alive and with a strong pulse. He denied strangling McGuire. Evidence that deceased bore the reputation of having a turbulent or violent disposition or character has been held competent where self-defense is alleged. State v. Parker, 358 Mo. 262, 214 S.W.2d 25; State v. Blair, Mo., 305 S.W.2d 435; State v. Hicks, Mo., 438 S.W.2d 215; State v. Duncan, Mo., 467 S.W.2d 866. In this case self-defense was not an issue and the trial court properly rejected such evidence.

Citing State v. Blair, supra, appellant further contends that the giving of Instruction No. 5 which allowed the jury to consider whether or not deceased was of a violent disposition, and appellant's knowledge thereof, magnified the court's error. In view of our above ruling, and the trial court's exclusion of such evidence, the giving of this Instruction was not required but it could not have harmed or prejudiced appellant.

In Points 4, 5, 6, 7, 8 and 9, dealing with alleged error in Instructions 1, 2, 3, 4, 6 and 7, appellant has failed to comply with Supreme Court Rule 84.04(e), V.A.M.R., which provides in part as follows: 'If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief.' We will, however, consider the matters set forth in these Points.

In Point 4 appellant alleges error by the trial court in reading Instruction No. 1 at the outset of the trial. This instruction dealt with the procedural aspects of the trial, the duties of jurors as triers of the facts, and an admonition to the jury not to discuss the case and to keep open minds until submission. No objection was raised when the instruction was read either to the giving of the instruction or to its contents. Counsel candidly admits that, 'For a Defendant to loudly complain of a jury being so...

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