State v. Granberry

Decision Date14 March 1973
Docket NumberNo. 57477,57477
Citation491 S.W.2d 528
PartiesSTATE of Missouri, Respondent, v. James Lee GRANBERRY, Appellant.
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Vincent F. Igoe, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

Alan G. Kimbrell, Asst. Public Defender, Clayton, for appellant.

DONNELLY, Judge.

Appellant, James Lee Granberry, was convicted of murder in the first degree by a jury in the Circuit Court of St. Louis County, Missouri, and his punishment was assessed at death. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

The appeal having been taken to this Court prior to January 1, 1972, the effective date of new Article V of the Constitution, we have jurisdiction pursuant to then Art. V, § 3 of the Missouri Constitution, V.A.M.S.

Appellant was charged as being a participant in the occurrences of December 12, 1969, which are described in State v. (Darryl Samuel) Granberry, Mo.Sup., 484 S.W.2d 295.

The determinative issues on this appeal involve the questioning at trial of witness Kenneth P. Hackett.

On January 9, 1970, an indictment was returned charging James Granberry, Kenneth P. Hackett, and Darryl Samuel Granberry with the murder of Officer Wilbert Downey. On October 8, 1970, Hackett made a video-taped statement and the State dismissed its case against Hackett.

At appellant's trial, Hackett was called as a witness by the State and testified, in part, as follows:

'Q All right. Now, directing your attention back to December 11, 1969, in that--during that evening--did you at any time meet with Jeffery Winters and Jerry Winters? A Yes, sir.

'Q Where did you meet? A At my house.

'Q When Jerry and Jeffery were there was Darryl there at any time on the evening of December 11? A He was already with me.

'Q I beg your pardon? A He was already with me.

'Q And did James Granberry, the man that is in court here, did he join you at any time at home? A No, sir.

'Q All right. Now, did you meet James Granberry later that evening?

'A No, sir.

'Q When did you meet him, James Granberry? A We didn't.

'Q I beg your pardon? A We didn't meet him.

'Q You didn't meet him? A No, sir.

'Q Did you pick him up anywhere? A No, sir.

'Q Well, did you--at any time on the early morning of December 12, 1969, was James with you? A No, sir.

'Q Was James with you any time when you went out to the Clark Filling Station?

'MR. COLEMAN: I object to the leading form of the question, Your Honor.

'THE COURT: Sustained.

'MR. SETTICH: I beg your pardon?

'THE COURT: Sustained at this time.

'Q (By Mr. Settich) What kind of car did Darryl have?

'A A '63 Pontiac.

'Q I will show you the photograph here that has been marked as State's Exhibit 10 and ask you to take a look at that. Do you recognize what is in that photograph? A Yes, sir.

'Q And what is that? A '63 Pontiac.

'Q Whose car is that? A My cousin's.

'Q And which cousin? A Darryl.

'Q All right. Now, on the early morning of December 12, 1969, were you in that Pontiac? A Yes, sir.

'Q And who else was with you?

'A Jeffery and Jerry Winters and Darryl Granberry, Charles Bern.

'THE REPORTER: How do you spell Bern?

'THE WITNESS: B-e-r-n.

'Q (By Mr. Settich) How about James? Was James with you?

'A No, sir.'

The attorney for the State then claimed surprise, asked for, and was given, leave to cross-examine witness Hackett, and proceeded to ask him about prior statements (given to an investigator, two attorneys for the State, a police detective, in a deposition taken in a case involving other defendants, and in the video-taped statement) wherein he implicated appellant as a participant in the crime.

In closing argument to the jury, the attorney for the State said, in part: 'I suggest to you that there is something to be gained from Hackett's testimony. I suggest to you that we don't just forget about their testimony. Hackett said five times, five times on a video tape and in the presence of his lawyer. Mr. Coleman leaves that out. He says the defense and the prosecutors--there was a Mr. Bright there and a prosecutor and Hale Brown. Hackett's lawyer was there when the video tape was taken. He said that James Granberry went inside, and he said that he was along, and he was in that car that night, and he committed the robbery. He said in the deposition under oath, Hackett's deposition, James Granberry--he went along--James Granberry--James--James--under oath. Just before this trial, Hackett told Mr. Edward, the investigator in my office, 'James Granberry,' during the week, and Hackett admitted this on the witness stand. He told Mr. Glynn, 'James Granberry.' And he told Mr. Settich the same thing, five times, that it was James Granberry who was involved.'

The rule of evidence which governs our disposition of this case has been denominated the orthodox view, was reaffirmed as the law in Missouri in State v. Kinne, Mo.Sup., 372 S.W.2d 62, 68 (1963), and is stated in 133 A.L.R. 1454, at 1455, as follows:

'The general rule is almost universally recognized that evidence of extrajudicial statements made by a witness who is not a party and whose declarations are not binding as admissions is admissible only to impeach or discredit the witness, and is not competent as substantive evidence of the facts to which such statements relate.'

We must conclude on the record in this case that the prior statements attributed to witness Hackett were not used by the State to impeach Hackett's credibility but, on the contrary, were used as substantive evidence to show the truth of the matters asserted in such statements given by Hackett on prior occasions. The judgment of conviction cannot be permitted to stand.

In State v. Kinne, supra, in an opinion written for Division Number Two of this Court, Judge Barrett noted the rejection of the orthodox view by Wigmore and McCormick, and extensively reviewed the twists and turns in the Missouri case law on the question. Of particular note is the fact that this Court, sitting en Banc in 1935, in the case of Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400, adopted a position which was accurately analyzed by Judge Bennick in Woelfle v. Connecticut Mutual Life Insurance Company, 234 Mo.App. 135, 151, 112 S.W.2d 865, 874, as follows:

'In Pulitzer v. Chapman, supra, our Supreme Court did lay down the rule that, so far as concerns the impeachment of a witness by his deposition in the cause, not only may he be impeached by contradictory statements which appear therein, but his contradictory statements may also be accepted as substantive proof of the facts stated so far as they are competent and have probative value. This for the reason that testimony in a deposition is given both under oath and subject to the right of cross-examination, and is therefore not to be characterized as hearsay. However, it is to be noted that the court in its opinion specifically refused to hold that probative value should likewise be accorded to prior extrajudicial statements, and we are therefore left to follow the usual rule in such respects, which is that such statements are admissible only for the purpose of impeachment, assuming, of course, that the case is one where the impeachment of the witness is in order, a situation which we have shown did not exist in the instance under consideration.'

In 1945, a new provision authorizing depositions in felony cases (Art. I, § 18(b)) was made a part of our Constitution. It reads as follows:

'Upon a hearing and finding by the circuit court in any case wherein the accused is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may take the deposition of such witness and either party may use the same at the trial, as in civil cases, provided there has been substantial compliance with such orders. The reasonable personal and traveling expenses of defendant and his counsel shall be paid by the state or county as provided by law.'

We note that in 1967, the California legislature rejected the orthodox view (See People v. Green, 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422, and California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489). In 1969, Wisconsin and Kentucky, at least to some extent, rejected the orthodox view by court decision (Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d 609; Jett v. Commonwealth, Ky., 436 S.W.2d 788).

We decline the opportunity to reject the basics of the orthodox view but believe the interests of the public and the accused will be better served and protected if we adopt the following positions:

(1) we reaffirm the Pulitzer v. Chapman position;

(2) if a witness is present at trial (whether he testifies at trial or not), his deposition, if taken by the State under the provisions of Art. I, § 18(b), supra, is not made inadmissible by the hearsay rule, and, so far as it is admissible under other rules of evidence, may be used by the State and 'accepted as substantive proof of the facts stated' in the deposition; and

(3) if a witness is not present at trial, and it appears he is dead or that the State has made a good-faith effort to obtain his presence at trial (State v. Brookins, Mo.Sup., 478 S.W.2d 372, 375), his deposition, if taken by the State under the provisions of Art. I, § 18(b), supra, is not made inadmissible by the hearsay rule, and, so far as it is admissible under other rules of evidence, may be used by the State and 'accepted as substantive proof of the facts stated' in the deposition.

The judgment is reversed and the cause remanded.

HENLEY, J., concurs.

SEILER, J., concurs in separate concurring opinion filed.

FINCH, C.J., concurs in result in separate concurring opinion filed.

HOLMAN, J., concurs in result and concurs in separate concurr...

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