State v. Granberry

Decision Date28 October 1975
Docket NumberNo. 36183,36183
Citation530 S.W.2d 714
PartiesSTATE of Missouri, Plaintiff-Respondent, v. James Lee GRANBERRY, Defendant-Appellant. . Louis District, Division Three
CourtMissouri Court of Appeals

Slonim & Ross, Arthur H. Slonim, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Lucia Leggette, Jefferson City, Gene McNary, Pros. Atty., George Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

GUNN, Judge.

Defendant-appellant James Granberry appeals from his second conviction for the first degree murder of University City police officer Wilber Downey. In 1971, defendant was convicted of the murder of Officer Downey and his punishment assessed at death, but on appeal to the Missouri Supreme Court the judgment of conviction was reversed and the cause remanded for a new trial. 1 On the second trial, defendant was again convicted of the first degree murder of Officer Downey and sentenced to life imprisonment. On this appeal of his second conviction, defendant raises six points of alleged error. He contends: 1) that the trial court was without jurisdiction to try his case as the trial was held on a suspended indictment; 2) that the trial court erroneously admitted evidence of other crimes for which defendant was not on trial; 3) that the trial court erred in overruling defendant's motion to suppress certain evidence alleged to be the product of an illegal arrest; 4) that various comments and arguments of the prosecuting attorney regarding defendant were so vituperate and vitriolic as to deprive him of a fair trial; 5) that defendant was materially prejudiced by the admission of alleged inadmissible testimony by a police officer investigating the case; 6) that fingerprint evidence was admitted without proper foundation. We find no reversible error and affirm the judgment.

The facts are these. During the early morning of December 12, 1969--around 1:30 a.m.--a brown Pontiac carrying five young men entered a Clark service station on Olive Street Road in University City. After being served by the station attendant two of the men from the car ordered the attendant into the back room of the station and forced him to lie down on the floor. The two men took the attendant's money from his pockets and pried open a cabinet. While the robbery was in progress, several customers drove into the station for service, and some of the customers noticing suspicious activity placed a call for police. University City police, including Officer Downey, responded to the call. Officer Downey entered the station and shots were heard. The station area was raked with an enfilade of gun fire, and the customers at the station scurried to lie doggo for safety. Two men, later identified as defendant and his cousin Darryl Granberry, were observed firing pistols and fleeing from the back room of the station. The identification of defendant was made by University City Police Officer Edward Steinmeyer who had responded to the call and who was involved in an exchange of gun fire with the Granberrys.

Subsequent to defendant's first trial and prior to his second trial, Officer Steinmeyer died of natural causes, and his testimony from the first trial was read to the jury. Officer Steinmeyer testified that he fired his revolver until empty at the fleeing defendant and Darryl Granberry, wounding Darryl and halting his flight; that defendant with a revolver in his hand ran to the Pontiac pursued by Officer Steinmeyer. Defendant was able to enter the Pontiac, and Officer Steinmeyer reached through the open car window and struck defendant on the top of the head three or four times with his empty revolver in an effort to suddue defendant. However, defendant was able to escape in the Pontiac. Officer Steinmeyer testified that he had a good look at defendant's face and positively identified defendant as the person he had observed running from the station with a gun in his hand and who he had struck on the head and who had escaped in the Pontiac.

The pistol which Officer Steinmeyer observed defendant carrying as he was fleeing from the station back room was found on the Clark station lot at the point where the Pontiac had been parked before defendant's escape. The pistol which Officer Steinmeyer had seen defendant carrying and which was found on the ground after defendant had escaped was identified as belonging to Officer Downey. Ballistics established that Officer Downey had been fatally shot in the back by his own pistol.

Four of the participants in the incursion into the Clark station were arrested at the scene on December 12. Defendant was arrested in the afternoon of December 12 by St. Louis police. Police examination of defendant's scalp shortly after his arrest revealed a running wound and bump. The brown Pontiac was found abandoned within a mile of the Clark station. A thumbprint lifted from the Pontiac on December 12 after the robbery was identified as defendant's; a black leather jacket with a check stub made out to 'T. A. Reinert' in a pocket was found near the abandoned Pontiac. Defendant's defense was that he was elsewhere at the time of the robbery.

I

Defendant first argues that his conviction and sentence are void on the ground that the indictment upon which he was tried had been suspended by operation of § 545.110 RSMo 1969 and Rule 24.14. Section 545.110 provides:

'If there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.'

On July 9, 1970, an indictment (herein after the first indictment) was filed charging defendant with the first degree murder of Officer Downey. As previously mentioned, judgment of conviction on the first indictment was reversed and remanded by the Missouri Supreme Court. After the cause was remanded, the prosecuting attorney sought and obtained a second indictment, filed on October 12, 1973, containing two counts. The first count charged the defendant with the same crime charged in the first indictment--the first degree murder of Officer Downey. The second count added the charge of first degree robbery.

Prior to trial and with substantial persuasion by the judge of the criminal assignment division and entreatment of defendant's counsel, an agreement was made in open court by the prosecutor and defendant's counsel to try the case under the first indictment with the prosecutor agreeing to the nolle prosequi of the second indictment in its entirety. The trial then proceeded--pursuant to the agreement--under the first indictment, and a formal nolle prosequi of the second indictment was filed four days after the conclusion of the trial. The defendant now argues that the second indictment was in effect throughout the trial and that the first indictment upon which he was tried and convicted at the second trial had no force or validity under § 545.110. Defendant thus suggests that the chasm of imperfection of trial under a suspended indictment is too wide and deep for the State to leap. If the defendant's contention is correct, the circuit court would not have had jurisdiction to try the case, since 'there can be no trial, conviction or punishment for a crime without a formal and sufficient accusation. . . . (T)he complete absence of a formal charge is jurisdictional.' State v. Harrison, 276 S.W.2d 222, 224, (Mo.1955), cert. denied, Harrison v. State, 353 U.S. 942, 77 S.Ct. 822, 1 L.Ed.2d 763 (1957). See also Montgomery v. State, 454 S.W.2d 571 (Mo.1970); State v. Hasler, 449 S.W.2d 881 (Mo.App.1969); 21 Am.Jur.2d Criminal Law § 390 (1965). It also should be noted that there can be no waiver of formal and sufficient accusation. Montgomery v. State, supra; State v. Gladies, 456 S.W.2d 23 (Mo.1970); 21 Am.Jur.2d Criminal Law § 390 (1965): 'A criminal prosecution necessarily implies the existence of an accusation charging the commission of a criminal offense, as the basis thereof. . . . Such an accusation, in some form, is an essential requisite of jurisdiction which cannot be waived.'

Section 545.110 has been construed to be self-executing. State v. Brown, 364 Mo. 759, 267 S.W.2d 682 (1954). Thus, if there are two indictments filed for the same offense, the first is automatically suspended. State v. Payne, 223 Mo. 112, 122 S.W. 1062 (1909); State v. Vincent, 91 Mo. 662, 4 S.W. 430 (1887). And while the second indictment is in effect, the first indictment is considered as having no force or vitality. State v. Mayer, 209 Mo. 391, 107 S.W. 1085 (1908); State v. Williams, 191 Mo. 205, 90 S.W. 448 (1905); State v. Melvin, 166 Mo. 565, 66 S.W. 534 (1902). However, the validity of an earlier indictment can be revitalized and can be used to prosecute the defendant if the later indictment is no longer pending against him. In State v. Melvin, supra, where the second indictment was quashed prior to the trial on the first indictment, the court stated that:

'The first (indictment) is merely suspended but new life and validity may be imparted to it by the removal of the obstacle which caused the suspension, to wit, the second indictment, as was done in this case, by quashing it on the record. . . . (T)he statute requires the first indictment to remain suspended pending the period the second is in force, unless actually quashed by the court on the record; but, if the second is itself quashed without the first having been quashed, the first is restored to all its vigor. . . .' State v. Melvin, supra at 535--536. (Emphasis added.)

The question for us to determine is whether the 'obstacle' of the second indictment had been removed prior to the defendant's trial thus making trial on the first indictment correct. 2

The defendant contends that the second...

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