State v. Fair, 55400

• Citation: 467 S.W.2d 938
• Decision Date: 10 May 1971
• Docket Number: No. 55400,55400
• Parties: STATE of Missouri, Respondent, v. Larry FAIR, Appellant.
• Court: United States State Supreme Court of Missouri

Page 938

467 S.W.2d 938

STATE of Missouri, Respondent, v. Larry FAIR, Appellant.

No. 55400.

Supreme Court of Missouri, En Banc.

May 10, 1971.

Rehearing Denied June 28, 1971.

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

Raymond Howard, St. Louis, for appellant.

BARDGETT, Judge.

Defendant was indicted and subsequently found guilty by a jury of murder in the first degree. The jury assessed punishment at death and the court entered judgment and sentence in accordance with the verdict. Defendant's motion for new trial having been overruled, he now appeals. The sufficiency of the evidence is not questioned. Because of the disposition we must make of this appeal, an abbreviated statement of facts will suffice. On December 4, 1968, about 6:00 p.m., Mike LoGrasso, the owner of Mike's Restaurant, was the subject of an armed robbery in which four robbers participated and during which Mike LoGrasso was shot to death by Walter Berry, one of the robbers. A customer was then robbed and Berry shot him also.

Defendant filed a motion to suppress any alleged statements on the grounds they were made involuntarily, that they were the fruit of an illegal arrest, that they were made without adequate advice as to his right to counsel and his right to remain silent, or without an intelligent waiver of his rights.

On December 8, 1968, at about 9:00 a.m., defendant was arrested at his home. Upon being arrested and in response to interrogation while in custody at his home, and without having been advised of any rights--'Miranda warnings', defendant, according to the arresting officer, said he figured he was being arrested for being implicated in the Mike LoGrasso holdup and killing but that he did not kill him. Defendant was taken to the police station where, according to the testimony of the interrogating officers at the hearing on the motion to suppress the confessions, he was advised that he had a right to remain silent and not make any statements, that any statement he might make could and would be used against him in court on a charge of murder; that he had a right to have an attorney present before and during the questioning at any time; that if he was unable to afford the services of an attorney one would be provided for him prior to any questioning. The officer testified that defendant said he understood his rights, but that he had not shot anyone and he wanted to tell a true story relative to the holdup and shooting of deceased, and then confessed to participation in the robbery. The confession was admitted in evidence.

Defendant did not testify on the motion to suppress nor at trial, but did attempt to question the police officers and offer evidence during the hearing on the motion to suppress with respect to the legality of the arrest for the purpose of showing that the arrest was without a warrant and without probable cause, and therefore illegal.

The state admitted that the arrest was without a warrant; however, the court sustained the state's objections to questions pertaining to the legality of the arrest and to defendant's offers of proof with respect thereto on the grounds that the legality of the arrest was not before the court on the motion to suppress, and indicated that the question of probable cause for an arrest without a warrant would have no bearing on the question of voluntariness of a confession subsequently obtained.

The prosecutor did not mention punishment during the first half of his argument to the jury except that at the close of his opening argument he said he did not want to discuss punishment at this minute because he was almost out of time; that he would like to discuss a little bit about the reasons behind the death penalty and then said: 'I will not ask you to inflict the Death Penalty, I don't think it is my position * * *'.

Defendant's attorney made no mention of punishment in his argument to the jury. During the state's closing argument, the prosecutor began to discuss punishment. Defendant objected as not being proper rebuttal, which objection was overruled. The prosecutor then asked the jury to return a 'strong verdict'. He argued hypothetically that there could be a first-degree murder case in which a death penalty would not be warranted. He then distinguished the instant case from his hypothetical, saying there was no mitigation in this case. He argued for a 'strong verdict' and told the jury it could impose the death penalty. The jury assessed punishment at death. The objection was duly preserved in defendant's motion for new trial and on this appeal.

Defendant has briefed numerous points on this appeal; however, we will decide only those issues necessary to a disposition of this appeal and those which will obviously recur on new trial. Defendant contends the trial court committed prejudicial error in overruling his objection to the state's concluding argument on punishment because the state did not argue punishment in its opening argument; the defense did not argue the matter and, consequently, was foreclosed from answering the state's argument because it occurred for the first time in the final phase of the prosecutor's summation. Defendant says that it would have been foolish for him to have initiated any argument concerning punishment in view of the prosecutor's statement to the jury that, 'I will not ask you to inflict the Death Penalty'.

In Shaw v. Terminal Railroad Ass'n of St. Louis, Mo., 344 S.W.2d 32, 37, this court said: 'Counsel having the affirmative will be held to the requirement of fairly stating his essential points in the opening argument, at least to the extent that the defendant may fairly answer them; and a failure to require this will ordinarily constitute error, if the point has been properly raised at the time and preserved.' In State v. Peterson, Mo., 423 S.W.2d 825, this court, in reversing and remanding, held the rule stated in Shaw, supra, to be applicable to criminal cases. Subsequently, in State v. Wadlow, Mo., 450 S.W.2d 200, this court followed State v. Peterson in reversing and remanding a judgment of conviction on the sole ground that the trial court erred in permitting argument on punishment to be made in the state's concluding argument, over defendant's objection, when there was no mention of punishment in the opening portion of the state's argument.

In the instant case, the prosecutor did mention punishment in his opening argument. However, this was done in a way that could reasonably be understood to mean that the state would not argue for the death penalty. If so understood, there would be even less reason for defendant to argue punishment at all, because the only other punishment available should defendant be found guilty of first-degree murder was life imprisonment. The state, with admirable candor, seems to concede that the statement of the prosecutor could have reasonably been so understood by the jury and defense counsel, for in its brief the state says: 'At first blush it might appear that the prosecutor indicated in opening argument that he would not ask for the death penalty, and then suggested a death sentence in closing argument. If this were so, he might have been responsible for a situation in which the defense counsel saw no reason for discussion of punishment--for if the prosecutor indicated that he did not want a death sentence, the jury could not find guilt of the only charge submitted to them without assessing at least a life sentence. Defense counsel could not help his client by arguing punishment.'

This court, in discussing this issue in State v. Peterson, Mo., 423 S.W.2d 825, 831, said: 'The point will, of course, be ruled in each case on its own peculiar facts, including these issues: whether a fair statement of the State's position has been made in some manner in its opening argument; whether any waiver has been made by the defendant, either by his counsel's own argument or by the failure to object properly and to preserve the point; and, lastly, a determination of the question of prejudice in view of all the circumstances.'

The state seeks to avoid the application of Peterson to this case by arguing that the prosecutor did not try to urge the death sentence on the jury. A fair reading of the record clearly indicates to us that the prosecutor did, in his concluding summation, argue for the death penalty and urge it on the jury.

We believe State v. Peterson, supra, is applicable here. The statement by the prosecutor that he would not ask the jury to inflict the death penalty was not a fair statement of the state's position if the state intended to urge the death penalty in concluding argument, as it did here. There was no waiver by the defendant in his argument as defendant's counsel did not argue punishment at all. Defendant objected properly at the first mention of punishment by the state and has preserved the point for review.

With respect to the question of prejudice in view of all the circumstances, we note that in Peterson, supra, the court said, loc.cit. 830: 'The defendant here was sentenced to more than a minimum term; as stated in Shaw, no one can know what the jury would have done had the argument proceeded in the normal course and had defendant's counsel thus been given an opportunity to answer. We do not consider that the imposition of a term of three years instead of ten eliminated the inherent prejudice.'

In the instant case the jury assessed the maximum punishment--death--and consequently the rationale of Peterson, supra, is clearly applicable. We hold here that the final argument of the state's counsel constituted prejudicial error requiring a new trial.

Since the question of the admissibility of the two purported confessions of defendant will undoubtedly again arise on retrial, we will treat with them as they stand on the record now before us. We first have the statement attributed to defendant at the time of...