State v. Davison, 61545
| Decision Date | 15 July 1980 |
| Docket Number | No. 61545,No. 1,61545,1 |
| Parties | STATE of Missouri, Respondent, v. Raynard DAVISON, Appellant |
| Court | Missouri Supreme Court |
Paul L. Dobberstein, Jr., St. Louis, for appellant.
Kathleen Mills, Asst. Atty. Gen., Jefferson City, for respondent.
WELBORN, Commissioner.
Appeal from convictions on two counts of first degree murder, § 559.007, RSMo 1975 Supp., for which appellant was sentenced to concurrent terms of life imprisonment.
Raynard Davison was charged with the deaths of Marie Simms and Arthur Isbell which occurred on January 16, 1976. Simms, age 70, and Isbell, age 53, lived together in Simms' flat at 5104 Dr. Martin Luther King Drive in St. Louis.
Oscar Reed, who was 10 years old at the time of the crime, Reed's five-year-old brother, Lenny, and 10-year-old Charles Smith were headed toward the Reeds' grandfather's flat on an errand at approximately 6:00 P.M. on January 16, 1976. The grandfather's flat was in the same building as Simms'. As Oscar led the boys up the stairs, he noticed the front door of the Simms' flat partially open. He looked inside and saw one black male stabbing Simms and at least three black males inside the flat. As he was looking into the Simms' flat, a black male came to the door and Oscar saw his face for approximately 12 seconds. The man at the door then ran with the other men toward the back of the flat.
Oscar, along with Smith and Lenny, ran next door to Larry's Lounge and told his mother what he had seen. Mrs. Reed and another customer at the tavern went to the Simms' flat where they found the door open and saw Simms and Isbell on the living room floor in a pool of blood. Mrs. Reed called the police.
When the police arrived they found the bodies in the living room, the bedrooms ransacked and the back door open. Simms and Isbell were pronounced dead on arrival at a hospital. Autopsies revealed both died as a result of fracturing of the skull, with cuts and blows to the head, neck and chest.
Appellant was arrested on January 19, 1976. On January 20, 1976, he appeared in a lineup which was viewed by Oscar Reed and Charles Smith. Oscar Reed identified the appellant as the man who came to the front door of Simms' flat.
Davison and Charles Lewis were indicted for first degree murder in the perpetration of a robbery in the deaths of Simms and Isbell. Davison's separate trial resulted in a verdict of guilty of murder in the first degree on each of the two counts. Lewis' separate trial resulted in conviction of two counts of murder in the second degree with consecutive 50-year sentences. See State v. Lewis, 579 S.W.2d 745 (Mo.App.1979).
A combination of questionable defense strategy and excessive prosecutorial zeal in this case gives rise to a vexing problem which forms the basis for appellant's first point of error.
At the trial, Oscar Reed did not directly identify appellant as one of the men he saw in the Simms' flat. He testified that he picked the man he saw at the door at a lineup and pointed out the man he saw as the third man in a four-man lineup. A photograph of the lineup was placed in evidence. Sergeant Young of the St. Louis Police Department testified that he conducted the lineup and that appellant was the third person in the photograph, the person pointed out by Reed.
On cross-examination of Young, defense counsel asked:
"How many people that you talked to identified the third man on that picture, on the picture of the lineup?"
The officer replied, "Two" and defense counsel asked who the second person was. The officer stated that Charles Lewis was one of the two. He said he thought Oscar Reed was the second.
Upon redirect examination of the officer, the prosecutor, over strenuous objection of defense counsel, was permitted to adduce from the officer that Charles Lewis was an adult and that he had been charged with murder in the deaths of Isbell and Ms. Simms. The prosecutor's theory was that defense counsel's questioning opened up Lewis' identification of appellant and that if some explanation as to who Lewis was was not forthcoming, defense counsel would be able to argue that the officer said two persons identified appellant and the state had not produced the second person. In the redirect examination by the prosecutor, the officer, in response to leading questions, said that Charles Lewis was in one lineup and that appellant was in a second lineup and that " * * * it was this lineup of Raynard Davison that * * * two people identified Raynard Davison," Lewis being one of the two persons.
The only evidence offered by the defendant was the testimony of the court reporter who read excerpts from the transcript made by her at a trial in April, 1977, involving a man by the name of Charles Lewis. Upon the mention of that name the prosecutor offered the unsolicited stipulation that "Charles Lewis is the same Charles Lewis we have been referring to here before." Apparently the testimony was intended to impeach Reed's testimony by showing that his testimony at Lewis' trial varied from that in the present case. However, insofar as the transcript here shows, the witness whose testimony in Lewis was read to the jury was never identified. On cross-examination, the prosecutor brought out that the Lewis trial involved the death of Marie Simms and Arthur Isbell.
On the appellant's motion for new trial, the state, in effect, stipulated that the testimony that Lewis picked Davison out of the lineup was incorrect and that Reed was the only person who made an identification at the lineup.
In his closing argument to the jury, counsel for defendant stated:
In rebuttal, the prosecutor stated:
Defense counsel objected that such matter was not proper rebuttal because it had not been brought out in the state's opening argument or referred to by defense counsel. The trial court agreed and sustained the objection.
The prosecutor continued:
In a conference at the bench the prosecutor's position was that prohibition against raising in final argument matters not previously mentioned applied only to punishment. He also stated that defense counsel had argued that only one man identified appellant and Sergeant Young said there were two. Defense counsel corrected the prosecutor's paraphrasing of his argument, pointing out that he said that Reed was the only person who took the stand and identified appellant. The trial court sustained the objection, ruling that the argument was not proper rebuttal.
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In re Interest of S.B.A.
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