State v. Harrington

• Decision Date: 08 March 1976
• Docket Number: No. 59139,59139
• Citation: 534 S.W.2d 44
• Parties: STATE of Missouri, Respondent, v. James HARRINGTON, Appellant.
• Court: Missouri Supreme Court

Page 44

534 S.W.2d 44

STATE of Missouri, Respondent, v. James HARRINGTON, Appellant.

No. 59139.

Supreme Court of Missouri, En Banc.

March 8, 1976.

James R. Robinson, Sikeston, for appellant.

Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.

James Harrington was convicted of murder in the second degree by a jury in the Circuit Court of Scott County, Missouri, in connection with the death, on September 19, 1971, of one Kenneth Ellison in front of a beer tavern in Sikeston, Missouri. Following rendition of judgment and imposition of sentence, an appeal was perfected by James Harrington to the Springfield District of the Court of Appeals, where the cause was reversed and remanded. Upon application of respondent, the cause was transferred here by order of this Court. We determine the cause 'the same as on original appeal.' Mo.Const. Art. V, § 10.

The first question on this appeal is whether defendant Harrington's trial was rendered 'fundamentally unfair' (State v. Aubuchon, 381 S.W.2d 807, 814 (Mo.1964)) by reason of the State's failure to produce, prior to trial, the substance of oral statements made by him on September 20, 1973, in Chicago, Illinois, to agents of the Federal Bureau of Investigation. The following portion of this opinion, dealing with this question, was written by Chief Judge Billings in an opinion prepared for the Springfield District of the Court of Appeals, and is adopted here, with minor changes, without quotation marks.

Following his arrest in Chicago by agents of the Federal Bureau of Investigation, the defendant was advised of his Miranda rights and signed a written waiver of these rights. Agents Kempf and Gallagher then interviewed the defendant and reduced to writing the substance of his oral statements. The FBI document included the details of the defendant's arrest, his denial of his identity, his waiver of rights, and his statement concerning the shooting of Kenneth Ellison and flight from Sikeston to Chicago. The statement indicated the shooting was accidental.

In an interview with the defendant on December 12, 1973, counsel appointed to represent him learned to the FBI interview and defendant's statements as to the events surrounding the shooting. The record reflects that defendant's counsel were advised by the prosecuting attorney that a copy of any statement made by the defendant to officers would be furnished without the necessity of a formal motion under Rule 25.195 (Repealed October 9, 1973, effective July 1, 1974. See now Rule 25.32).

The defendant was arraigned in circuit court on January 10, 1974, and entered a not guilty plea to first degree murder. At that time counsel for the defendant filed a motion under Rule 25.195 seeking copies of 'all written statements and transcriptions of all recorded statements and narrative reports of all verbal statements . . . given by the Defendant to, or in the presence of, any law enforcement officer, relating to the charges against Defendant, or the death of Kenneth Ellison.'

In ruling the defendant's motion, the court, inter alia, said: 'I am going to sustain the motion as nearly as I can understand it . . ..' Further, the judge added, directing his remarks to the prosecuting attorney, 'Within the next two or three days, (Prosecuting Attorney) is to file the names of all the witnesses, and if you have any written statements made by the defendant, copies of those.' At that time the prosecutor advised the court and defense counsel: 'There may be a statement by an FBI agent in Chicago of which I was given some indication. I have made some--I have attempted to contact the FBI agent. I do not know if a statement was given; I do not know. What I understand, they did have a conversation and the name and address, of course, as best I have, I have furnished.'

On January 18, 1974, defense counsel deposed the Sheriff of Scott County. The Sheriff stated that he had seen a copy of the FBI document in the possession of the resident FBI agent during the period between the defendant's September arrest and his November extradition.

The prosecuting attorney wrote letters to the resident agent of the FBI at Cape Girardeau and to Agent Kempf on January 18, 1974, requesting a copy of the defendant's statement. The letters noted the prosecutor was in need of the statement in order to prepare for trial on January 31, 1974, and because the State had 'been instructed by the court to provide the defense with any statements made by the defendant.' The letter to Agent Kempf also advised him the State would need his testimony at the trial.

The transcript shows that on January 22, 1974, Agent Kempf was endorsed as a witness on the State's information. At a court proceeding on January 29, 1974, the prosecuting attorney advised the court the FBI had not given him the defendant's statement. It is undisputed that defense counsel had, prior to that date, made repeated requests of the prosecutor for a copy of the statement. The requests continued throughout the afternoon of the day before the trial, but to no avail.

Agent Kempf testified he never received a request for the defendant's statement from the prosecuting attorney of Scott County. He said he delivered the statement to the prosecutor in the latter's Sikeston law office the afternoon before the trial. The prosecutor testified he did not furnish defense counsel with a copy of the statement at that time, although defense counsel's law offices were located within short walking distance of his own office, because it 'was and is my position that this was not a statement of the defendant, that this was a police report . . ..'

The defendant's trial commenced the next day, January 31, 1974. Shortly before voir dire examination of the jury panel commenced, and pursuant to the judge's direction, a copy of the defendant's statement was furnished to his lawyers. The court overruled the defendant's motion that Agent Kempf be excluded from testifying as to statements of the defendant, as well as the defendant's motion for a continuance of the case, by reason of the State's failure to earlier furnish a copy of his statement.

Agent Kempf's testimony covered the circumstances of the defendant's flight from the federal officers, his apprehension and denial of his identity, and his statement describing the shooting of the deceased.

The State, in this appeal, seeks to justify the earlier non-production of the defendant's statement and seeks to distinguish State v. Scott, 479 S.W.2d 438 (Mo. banc 1972), relied upon by the defendant. Scott is not applicable, the State argues, because in that case various factors were present which are absent in the case at bar. The length of the officer's testimony, the incriminating nature thereof, the contemporaneous note taking of the officer, and the physical possession of the notes by the officer are urged as reasons for the ruling in Scott. The State contends the prosecuting attorney made a diligent effort to obtain the FBI document, the defendant's statements are not lengthy nor incriminating, and, in addition, the document was not within the purview and scope of Rule 25.195. Besides, the State says, defense counsel could have journeyed to Chicago and deposed Agent Kempf prior to trial or submitted interrogatories to the agent.

We are not impressed with the foregoing arguments. We are of the opinion that what was said in ruling Scott, supra, is equally applicable to the information sought in this case.

"We start with the premise that truth is best revealed by a decent opportunity to prepare in advance of trial. We have embraced that tenet with respect to civil litigation, and absent overriding considerations, it should be as valid in criminal matters. It is of no moment that pretrial inspection is not constitutionally assured. Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). We are not limited to constitutional minima; rather we strive for practices which will best promote the quest for truth. It may be added that although Cicenia v. La Gay found the Fourteenth Amendment to be unoffended, yet it observed that 'it may be the 'better practice' for the prosecution to comply with a request for inspection.' 357 U.S. at page 511, 78 S.Ct. at page 1301, 2 L.Ed.2d at page 1529.

"It is difficult to understand why a defendant should be denied pretrial inspection of his own statement in the absence of circumstances affirmatively indicating disservice to the public interest.

"If a suspect refused to give a statement unless assured a copy, it would be an injudicious prosecutor who would not agree. And if the suspect were then represented by competent counsel, that stipulation would be required. Why, then, should the State refuse a copy to the suspect who was unrepresented and uninformed?

"We must be mindful of the role of a confession. It frequently becomes the core of the State's case. It is not uncommon for the judicial proceeding to become more of a review of what transpired at headquarters than a trial of the basic criminal event itself. No one would deny a defendant's right thoroughly to investigate the facts of the crime to prepare for trial of that event. When a confession is given and issues surrounding it tend to displace the criminal event as the focus of the trial, there should be like opportunity to get at the facts of the substituted issue. Simple justice requires that a defendant be permitted to prepare to meet what thus looms as the critical element of the case against him.

"The need for an opportunity to prepare to deal with a defendant's statement must be evident. If voluntariness is in issue, the content of the confession may be revealing. Counsel would need time to explore thoroughly the truth of the factual assertions therein, to inquire whether it contains anything more than the State knew at the time when defendant was apprehended, and to consider whether the content itself supports or negates the...