State v. Elmore, 55933
| Decision Date | 14 June 1971 |
| Docket Number | No. 1,No. 55933,55933,1 |
| Citation | 467 S.W.2d 915 |
| Parties | STATE of Missouri, Respondent, v. Jackie Ray ELMORE, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Willard B. Bunch, Chief Defender, Kansas City, of counsel.
This is an appeal from a conviction of second degree murder with a 35-year sentence assessed by the court when the jury was not able to agree upon punishment.
The sole contention of error is that in violation of his rights against self-incrimination, evidence was received that defendant while in jail awaiting trial did not volunteer to the authorities his explanation of self-defense to the charge against him.
Defendant was interrogated by the state as follows:
No objection was made by appointed counsel to the above line of questioning. The matter was not raised in defendant's motion for new trial. We are asked to give relief as a matter of plain error under Rule 27.20(c), V.A.M.R.
There were two directly opposed versions of the facts here. On September 1, 1969, a Labor Day holiday, there was a party at the home of Charles Clemons, starting about noon and running until about midnight. There was drinking, the amount uncertain. Around midnight, Robert Battle, the deceased, with two other young men and one young woman, left the party in Battle's automobile and drove to 3804 Flora Avenue, Kansas City, Missouri, where one of the men, Harris, got out to go to the house of a friend. The defendant and his companion, Ishmael McGill, came along in an automobile and stopped. An argument started as to whether Battle's car was parked too far out into the street. From here on the facts are in dispute.
The state's evidence was the defendant walked away from Battle's car toward his own car, got a pistol from the glove compartment, returned to Battle's car, told Battle that if he kept talking he would blow his brains out, and then stuck his hand inside the car and shot Battle in the left temple, killing him. Battle, so said the state's witnesses, did not have a gun at all, nor did anyone else in his automobile, and no one handed him a gun.
Defendant testified. His version was that Battle and he were arguing about Battle's car and the woman with Battle took a gun from her pocketbook, handed it to Battle, and told him to shoot defendant. Defendant went back to his own car, got a gun from the glove compartment, and stood on the curb. Battle started driving slowly forward and as he passed defendant Battle stuck his arm out the window and pointed a gun at defendant. Defendant thought Battle was going to shoot, him, so he fired one shot at Battle to scare him. Defendant testified Battle and the people with him appeared to be intoxicated; according to the state's witnesses, no one was intoxicated.
Defendant testified that the gun which Battle was holding fell to the street, where it was picked up by defendant's companion, and the two of them were scared and drove away. They were arrested a few hours later and threw the guns out of the car as the officers were stopping them.
It was error for the state to question defendant about whether, during the time he was in jail awaiting trial, he knew that self-defense was a defense to the charge and whether he had said anything to the authorities that the was his version of what occurred. For many years it has been settled law in this state that a defendant's silence when charges are judicially made against him or he is under arrest cannot be shown against him, State v. Foley, 144 Mo. 600, 46 S.W. 733; reaffirmed recently by this court en banc, State v. Stuart (Mo.Sup.) 456 S.W.2d 19, 22. In the latter case, in fact, it was expressly held that an accused's failure to volunteer an exculpatory statement is not admissible as an admission. The reasoning on the proposition is set forth in Helton v....
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