State v. Hamilton

• Decision Date: 08 September 1987
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Jack Lee HAMILTON, Appellant. 37787.
• Court: Missouri Court of Appeals

Page 208

740 S.W.2d 208

STATE of Missouri, Respondent, v. Jack Lee HAMILTON, Appellant.

No. WD 37787.

Missouri Court of Appeals Western District.

Sept. 8, 1987.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Oct. 27, 1987.

Application to Transfer Denied

Dec. 15, 1987.

Sean O'Brien, Public Defender, Bruce R. Anderson, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., and SHANGLER and BERREY, JJ.

PRITCHARD, Presiding Judge.

By the verdict of a jury appellant was found guilty of the Class A felony of Robbery in the First Degree under Count I, and also of Armed Criminal Action under Count II. As a persistent offender, he was sentenced to consecutive terms of life and 30 years imprisonment on each count respectively. No question is presented as to the submissibility of the state's case.

In Point I, appellant contends that the trial court erred in sustaining the state's objection to his opening statement in which his counsel attempted to outline evidence favorable to him as it would be developed through cross-examination of the state's witnesses. It is said that the ruling deprived appellant of rights guaranteed to him under the Sixth and Fourteenth Amendments to the U.S. Constitution; Article I, §§ 2, 10 and 18(a) of the Mo. Constitution; § 546.070, RSMo.1978; and Rule 27.02(d), in that the trial court denied appellant, who had not endorsed any witnesses, an opportunity to make an opening statement.

The state's case against appellant, who was never identified by the victims, the Nicholsons, depended on the testimony of two witnesses. In opening statement the prosecutor told the jury that it would hear from Rosemary Davis who had dated appellant for some period of time. On Friday evening, September 21 (1984), shortly before dusk, he came to her house and later left and was gone for several hours, returning after dark after he committed the crime. He told her what he had done, bragging that he had robbed a house in the area, and told her about the crime in detail. The police found that the unusual type of silverware had been sold the day after at a pawn shop in Kansas, and they found out who sold it.

The prosecutor also told the jury that it would hear from Sharon Murphy, whom he discussed during voir dire [as to whether any venireperson would bear a prejudice or bias against the testimony by reason of her not being charged in Kansas in exchange for her testimony at this trial, she being involved in the crime. This procedure is permissible under State v. Roseman, 583 S.W.2d 232, 234 (Mo.App.1979) ]. The prosecutor stated that Sharon, a sister of Rosemary Davis, was working at the Silver Leaf Tavern in Kansas City, when about the noon hour appellant, whom she knew, called her and asked her if she wanted to make some money, he had some stuff for her to sell. Appellant then drove Sharon to a pawn shop in Kansas and had her go in and sell the silverware. On the way back from that pawn shop, Sharon began asking him questions about where the silverware came from, and he told her in detail about the crime--going into the victims' house on Woodson Road, just several blocks from the house of Rosemary Davis, tied up the husband and directed the wife to produce all the property he wanted.

Counsel for appellant proceeded with his opening statement: " * * * There are, of course, two sides to every story. You heard the State's version of what happened on September the 21st, 1985. I now have the opportunity to tell you what evidence the defense will show. We will prove that Jack Hamilton is not guilty of this crime. No one argues the terrible series of events that happened on September 21st to Mr. and Mrs. Larry Nicholson. There's no doubt that that happened. It is unfortunate. But that does not make Mr. Jack Hamilton responsible. The two alleged witnesses that supposedly link Jack Hamilton to this offense that Mr. Gepford mentioned, the first one, Sharon Murphy. Sharon Murphy, as Mr. Gepford mentioned, was caught stealing--MR. GEPFORD: Objection, Your Honor. Mr. Berrigan is jumping the gun on closing argument. At this time he's supposed to tell the jury his evidence. This is the time for opening statement and not closing argument. He's arguing the credibility of the State's witnesses who haven't even testified yet. MR. BERRIGAN: I'm not arguing anything. I expect to prove this in cross-examination of Sharon Murphy. MR. GEPFORD: That's improper subject for opening statement, Your Honor. It's argumentative. THE COURT: I'll sustain the objection. Limit your opening statement to what you expect the evidence to be."

During a long colloquy before the court, appellant's counsel stated: "Your Honor, the Court's ruling puts me in a position of not being able to make an opening statement unless I produce witnesses on this offense. That's the effect of the court's ruling. The defense has no obligation whatsoever to produce any witnesses and I fail to see that informing the jury about the facts which we intend to be proven not only through cross-examination of the State's witnesses but through depositions already taken in this case, these are facts that the defense is entitled to have shown and they're entitled to be shown during opening statement irregardless (sic) of whether or not that witness happens to be endorsed as a state's witness." Thereafter, the trial court, reaffirmed its previous ruling sustaining the state's objection to the above referenced position of appellant's opening statement upon the ground that it went to the credibility of the state's witness and was argumentative.

During direct examination of Rosemary Davis it was brought out by the state substantially what it had told the jury on opening statement, but additionally when she first talked to the police she told them she knew nothing about the crime because she was scared and had been raised to keep her mouth shut. Later she talked to the police again and told them what she knew about the crime. On cross-examination, appellant brought out that Rosemary had been dating him for about 6 months in 1984, but it was not a serious relationship. It was also brought out that she told the police, on October 19, 1984, that she had sold some stolen property in Kansas, but she did not get it from Jack Hamilton, and that an unknown suspect had given it to her. She is a sister of Sharon Murphy, who had been arrested by that date. She knew that Sharon was pregnant at that time with triplets by one Dennis Coxe; that she was on probation; and that there was at least one case pending against her in Kansas and another one which had not been filed. She knew that if Sharon had gone to trial on the cases, and been found guilty she could have ended up in the Kansas State Penitentiary for a good many years, and if her probation were revoked in Jackson County, Missouri, the triplets would have been born in jail there. On another later occasion, the police told Rosemary that if she did not cooperate with them it could result in her child being taken away from her by the Division of Family Services, she having had a similar experience in the past. One detective told her, as well, that she could be charged with this offense in Kansas, but she was not so charged, and her sister never ended up going to jail, and her probation was not violated that Rosemary knew of.

On direct examination Sharon Murphy testified that appellant phoned her at the Silver Leaf Tavern where she was a barmaid shortly after September 21, 1984, and asked her if she would like to make some money. Later, he picked her up and they went to her sister's house and picked up a silver set, and they took it to Precious Metals on Metcalf (in Kansas) and she sold it for $150 or $160. Later, appellant told her how he committed the robbery--tied up the man with tape and had the woman show him where the property was. He loaded it in their car and drove it down to his car where something spooked him and all he had gotten was the silver set and $600. Sharon was charged with felony theft by the Kansas authorities, but an agreement was made with the prosecutor in Kansas that if she testified truthfully in this case the Kansas case would be dismissed and she would not be charged with having sold the silver. The Kansas case was in fact dismissed. Sharon also admitted having been convicted of the misdemeanor of stealing under $150, for which she was given probation from March, 1983, to March, 1985, when she was discharged.

Appellant's counsel extensively cross-examined Sharon about these events. She admitted that it was a condition of her probation that she not commit any crimes, and it was also a condition that she report any arrests within 48 hours. She did not report either matter to Judge Romano, or to her probation officer, and she was asked if she was aware that if Judge Romano knew about them, her probation could have been revoked and she could have spent a year in the county jail. She testified that she did not know that, but she was aware that she could have been found guilty in Kansas and ended up in the penitentiary in that case. She was asked if she was able to have her babies (the triplets) and never go to jail or the penitentiary, but stated that was not the reason she came to testify against appellant, and that she was told that if she willingly came to truthfully testify in this case, the (Kansas) charges would be dropped. It is not exactly clear, but apparently there were two felony charges in Kansas.

At the close of the state's case appellant testified that he chose not to testify and not to call any witnesses in his behalf. Appellant's counsel fully argued the believability of the two witnesses against him, Rosemary Davis and Sharon Murphy.

It has long been the rule that the primary purpose or function of an opening statement is "to inform the court and the jury...