State v. Foster
| Decision Date | 21 November 1985 |
| Docket Number | No. 66663,66663 |
| Citation | 700 S.W.2d 440 |
| Parties | STATE of Missouri, Respondent, v. Emitt FOSTER, a/k/a John Lee, Appellant. |
| Court | Missouri Supreme Court |
Dave Hemingway, St. Louis, for appellant.
William L. Webster, Atty. Gen., and John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant Emitt Foster, also known as John Lee, was convicted in St. Louis County Circuit Court of the execution-style capital murder 1 of 26-year-old robbery victim Travis Walker and sentenced to death. The jury rejected defendant's claim of alibi and in this appeal he does not challenge the sufficiency of the evidence to support his conviction. He seeks reversal for various alleged trial errors and, alternatively, that his punishment be reduced to life imprisonment without parole for 50 years. We affirm.
On November 20, 1983, Travis Walker and 19-year-old DeAnn Keys were living together in a St. Louis County apartment. Both knew defendant and Michael Phillips, the three men having been members of the same softball team. About 2 o'clock in the morning defendant and Phillips came to the Walker apartment, ostensibly seeking assistance because of a flat tire on Phillips' car. Shortly after they arrived, the two men produced pistols and forced Walker and Keys to lie face down, side by side, on the living room floor and demanded to know where Walker's jewelry was located. While defendant stood over Walker, poking the prone man in the head with his pistol, Phillips ransacked the apartment. Phillips also put the barrel of his pistol in Keys' ear while demanding Walker to tell the whereabouts of more jewelry. Walker kept telling the twosome that except for his watch, his jewelry was at his Mother's and begged them not to take his watch because it had belonged to his deceased father.
Later, and having taken Walker's watch and jewelry belonging to Keys, Phillips stated he and defendant were leaving and warned the couple on the floor not to try to follow them. When Phillips said this he was near the front door, near Keys, and defendant was still standing over Walker, pistol in hand. Keys heard a gunshot and then felt a gunshot and lost consciousness. When she "woke up" she was bleeding heavily from four gunshot wounds to her head. The four .38 caliber bullets had fractured her skull, jaw, several facial bones, and teeth but missed her brain. Walker was lying dead beside her as a result of four .38 caliber bullets to his head. 2
Keys, seeking help, went outside the apartment and tried to rouse a neighbor by striking the neighbor's door with a kitchen pot. She then reentered the apartment and tried to telephone the police but the line was dead. Thinking she was about to die from her wounds, she wrote the names "John Lee" and "Michael Philips [sic]" twice on an envelope and put it on her dresser.
A neighbor saw the bleeding Keys when she was outside of her apartment and called the police. Officers arrived shortly after 3:30 a.m. and found Walker dead on the living room floor and Keys lying across the bed. Although she was unable to talk because of her wounds, Keys indicated to the officers that the individuals whose names were on the envelope were the ones responsible for killing Travis Walker and attempting to kill her. Thereafter, she identified photographs of defendant and Phillips and at trial identified defendant.
Defendant did not testify at trial but called several witnesses who testified defendant played cards with them at his mother's house until nearly midnight the night of the crime. Defendant's key alibi witness was his girlfriend, Dorothy Beck Lee, who testified defendant accompanied her to her home after the card game and remained there until about 5:00 a.m.
On cross-examination, witness Lee acknowledged that on November 22 she had given police officers a tape recorded statement which was at odds with her trial testimony in that she had told the officers that shortly after she and defendant arrived at her house the defendant left and did not return until about 4:00 a.m. She admitted having told the officers this and that defendant had told her to "cover for him" by saying he was with her if anyone made any inquiries; further, that "if I didn't cover for his time ... something would happen to him, he couldn't keep protection on me, so therefore, he couldn't account for what happened to me." She also had told the officers that defendant had a .38 caliber pistol and carried it all of the time, had it on him the night of the crime, and she was "afraid to death myself."
While witness Dorothy Beck Lee admitted making the statement to the authorities, she claimed it resulted from police coercion, threats, misrepresentations, and withholding of needed medication; and that the interviewing officers told her what to say in response to their questions.
By way of rebuttal the State offered the tape recording for the purpose of demonstrating the circumstances existing at the time it was made and not for the truth of the matters contained thereon. The trial court first listened to the tape out of the hearing of the jury and then permitted the tape to be played for the jury after expressly cautioning the jury it was for the limited purpose of showing the circumstances under which it was taken--not for the truth of the statement.
Defendant argues that the State's use of the tape recorded statement worked a violation of his constitutionally guaranteed right to due process.
At the outset it should be emphasized that all of the information contained on the tape had already been before the jury by way of cross-examination of Dorothy Beck Lee. Therefore, defendant cannot argue in good faith that the playing of the tape brought before the jury previously unrevealed information. Even so, defendant suggests it was somehow unfair and constitutionally impermissible to play the full tape when the witness had already been impeached.
The transcript shows, and defendant admits in his brief that he, not the State, first injected the issue of coercion of witness Lee into the trial. The defendant raised this issue for the first time during his direct examination of witness Lee. Once the witness abandoned her prior statement and once defendant elicited testimony that the prior statement was the product of police misconduct, the State had not only the right to impeach the witness as to the existence of the prior statement but also the right to show the circumstances surrounding the making of the statement--to rebut the claim of coercion. The defendant voluntarily decided to raise the issue of coercion, and having done so, the State was entitled to play the tape to rebut the defendant's theory of coercion. The playing of the tape was critical and relevant to the State's ability to rebut the claim of coercion--and to the jury's ability to resolve this disputed factual issue.
The tape recording, States' Exhibit 64, has been filed with this Court and we have listened to it. We cannot detect anything in witness Lee's voice and manner of speaking that indicates she was under coercion or duress. Her tone of voice, choice of words, manner of speaking, and narrative form answers to questions are matters that the jury could properly consider in weighing her trial testimony as to the making of the statement. This, in turn, would bring into sharp focus her credibility as a witness. As stated in State v. Martin, 651 S.W.2d 645, 653 (Mo.App.1983),
Any competent testimony which tends to explain, counteract, repeal or disprove evidence offered by the defendant may be offered in rebuttal of defendant's evidence.
We hold there was no error in permitting the jury to hear the tape recording.
Ancillary to the foregoing assignment is defendant's complaint of the prosecutor's arguing that the recording disproved witness Lee's charges concerning the making of the tape. We initially note there was no objection made to the argument and the point has not been properly preserved. Nevertheless, we have reviewed the matter and find no error, plain or otherwise. The prosecutor's remarks were limited to considering the truth or falsity of the witness' allegations of police misconduct in the making of the recording. The point is denied.
Defendant contends the State's "Witherspooning" [Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ] the panel of potential jurors resulted in a "death qualified" trial jury. We have repeatedly rejected this contention. See State v. Malone, 694 S.W.2d 723 (Mo. banc 1985); State v. Nave, 694 S.W.2d 729 (Mo. banc 1985). 3 The point is denied.
Defendant alleges improper argument by the prosecutor during the guilt phase of the trial in connection with the court's instructions. Here again, the point is not preserved for appellate review because of the defendant's failure to make proper and timely objections. However, we have read the arguments in their entirety and find no plain error resulting in manifest injustice. The applicable general rule does not forbid all mention of the law in argument and counsel is permitted to argue the facts as they pertain to the law declared in the instructions of the court. State v. Jordan, 646 S.W.2d 747, 751 (Mo. banc 1983). We observe that defendant embarked upon a similar line of argument, but, in any event, conclude that the parties were simply arguing the evidence and inferences from their particular point of view and there was no error calling for reversal.
We have considered defendant's remaining contentions of error during the guilt phase of the trial and do not find any prejudicial error.
We turn now to the second stage, or punishment phase, of the trial.
Defendant assigns error in the trial court's excluding certain evidence during the testimony of defendant's mother. The court sustained the State's objections, based on relevancy, to the following questions: (1) the mother's age at the time of defe...
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