State v. Harris, 36560

• Citation: 535 S.W.2d 145
• Decision Date: 16 March 1976
• Docket Number: No. 36560,36560
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Rodney Earl HARRIS, Defendant-Appellant. . Louis District, Division Three
• Court: Court of Appeal of Missouri (US)

Page 145

535 S.W.2d 145

STATE of Missouri, Plaintiff-Respondent, v. Rodney Earl HARRIS, Defendant-Appellant.

No. 36560.

Missouri Court of Appeals, St. Louis District, Division Three.

March 16, 1976.

David V. Uthoff, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Nanette Laughrey, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

Defendant-appellant, Rodney Earl Harris, was charged, tried and found guilty by a jury for the offense of murder in the second degree. § 559.020, RSMo 1969. He was sentenced under the Second Offender Act, § 556.280, by the court to fifty years in the department of corrections. He appeals. We affirm.

Since the appellant does not question the sufficiency of the evidence, we will state only those facts necessary for the disposition of the points raised on appeal.

A jury could reasonably find the following: William J. Kupfer, Jr., a man of approximately 60 years of age, lived in the City of St. Louis. On the evening of June 18, 1973, his son, William J. Kupfer, III, who lived with his father, left the family home about 6:45 p.m., to attend a church meeting. When he returned at about 11:45 p.m., he found the house ransacked and saw his father 'lying on the living room floor.' He 'was strewn out on the floor, which would be unusual, just on the living room floor.' Mr. Kupfer, III called the police. The police came. Upon examination, it was found that there were several items missing from the house--radios, a cassette tape player, cameras, a diamond ring and some cash. When the police arrived, they found that Mr. Kupfer, Jr. had been shot six times and was apparently dead.

Patrolman Lawrence Keating was one of the policemen who arrived at the Kupfer home. He found the premises 'pretty well disarranged.' He contacted the homicide division and the evidence technician unit. Officers from the evidence technician unit also came to the home and examined the room. They seized four pellets from the living room area and seven shell casings and made a fingerprint examination of the living room and bedroom area. They found a 'Delco Remy battery switch box,' sometimes referred to as a coin box or container, in the home, and it was dusted for fingerprints. Two whole and other pieces of fingerprints were found thereon. These impressions were forwarded to the laboratory. They also found shell casings and pellets and took photographs. The victim was taken to the hospital. He was dead on arrival.

The next morning, Dr. John J. Thomas performed an autopsy. He found several gunshot wounds in: (1) the left shoulder, (2) the left side of the chest, (3) the left side of the abdomen three inches from the left iliac spine, (4) the middle of the right arm, (5) the middle third of the right thigh, and found (6) a penetrating wound on the right side of the chest. Death was caused by 'traumatic intrathoracic hemorrhage' due to a penetrating gunshot wound of the 'thoracic aorta.' 'In other words, the cause of death was the massive bleeding.' Dr. Thomas recovered three bullets from the body which were turned over to the police.

On June 21, 1973, Officer Donald Ray was in the vicinity of University Avenue in the City of St. Louis and observed a 1968 Oldsmobile. He was asked on direct examination whether '(p)rior to observing that vehicle had you received any radio communication concerning a vehicle of that description?' An objection was made on the ground that '. . . he received some information by radio that implicated this defendant to this crime, and so it's hearsay, your Honor. . . .' The objection was overruled. Defense counsel argued that the officer is 'leaving with the jury the impression that there is some evidence not introduced in this cause that caused a radio description to go out for this car in which this defendant was found. . . .' After observing the Oldsmobile, Officer Ray summoned two other officers-Officers Dobbins and Mitchell. Officer Dobbins testified that after he 'talked' to Officer Ray, he observed the vehicle. Again, objection was made that '(i)t's a clear indication that something was said to this officer (Dobbins) by Ray that implicated this defendant and gave this officer reason to arrest him and stop that car. You can't do that, that's hearsay, your Honor.' The court overruled the objection and a motion for mistrial. Officer Dobbins then testified that he and his partner, Mitchell, observed this car, which at the time had no passengers, and they waited for occupants to enter. Eventually, an automobile pulled up alongside the Oldsmobile, and three 'fellows' got out, entered the Oldsmobile and started to drive off. As they did so, Officers Dobbins and Mitchell 'pulled up alongside,' and the car pulled to the curb. Appellant was in the Oldsmobile with two other persons who were known to the officers. The three men got out of the Oldsmobile, and the appellant, Harris, walked away to a grassy area by the sidewalk, where he removed a pistol from beneath his shirt and laid it in the grass. Officer Dobbins walked over, picked up the pistol and said, ". . . he's under arrest for CCW." Mr. Harris then ran through the areaway. He was not apprehended at this time, but the gun and bullets were seized. The gun was a .32 automatic weapon. Officer Mitchell corroborated Officer Dobbins' testimony regarding the event. Later that same day, appellant-Harris was arrested at his home 'upstairs above the liquor store.' Officer Mitchell went to the liquor store, identified himself as an officer and talked to the mother of Mr. Harris. Mitchell went upstairs and found 'Rodney climbing out of the back room,' 'attempting to go out the window.' Harris was ordered back, and the officer took him into custody.

On August 29, 1973, the appellant was charged by a substitute information in lieu of an indictment with second degree murder. Trial began on July 8, 1974.

During the trial, the above facts were brought out. In addition, the commander of the police laboratory and a firearms examiner Lieutenant William Armstrong, examined and test-fired the firearm seized by Officer Dobbins and examined the bullets recovered from Mr. Kupfer's body. He performed a microscopic comparison of the test shot and the bullets removed from the victim. 'The microscopic examination proved beyond any doubt that the two pellets . . . removed from Mr. Kupfer were definitely fired from this .32 caliber automatic.' Lieutenant Armstrong had no question in his mind that 'this gun was used in the killing of that man.'

A fingerprint expert, Officer Paul English, testified at trial. He testified that he compared the latent fingerprints turned over to the division by the officer who took the prints from the 'coin box' or 'container' with the fingerprints of Mr. Harris and 'found that the impressions made by the left thumb, left middle and left ring fingers of Rodney Harris matched the impressions on the container.' He testified that if prints were on the container over a 'week' it would be 'very unusual.' At the close of the evidence, defendant moved for a judgment of acquittal which was overruled. The court instructed the jury on second degree murder. MAI-CR 6.06. ¹ The defendant offered an instruction on manslaughter, but the offer was refused. After the jury was instructed, counsel argued the case. During the state's opening argument, the prosecutor reviewed the evidence, and, after reviewing much of the evidence, the following occurred:

'(Prosecutor:) . . .

Now, we have gone through the whole process of a jury trial, a grand jury indictment. The grand jury indicted this man and said it's murder second degree.

(Defense counsel): I'll object, your Honor.

THE COURT: Sustained. Ordered stricken. The jury is instructed to disregard it.

(Defense counsel): I ask a mistrial be declared.

THE COURT: Overruled.

(Prosecutor): I didn't indict this man. . . .'

The jury found the appellant guilty of murder in the second degree. In due time a motion for new trial was made complaining of the testimony of Officers Ray and Dobbins, the argument of the prosecutor and that '(t)he Court erred in refusing to give defendant's instruction A on the lesser offense of Manslaughter.'

The motion was overruled, and on October 4, 1974, the defendant, having been granted allocution, was sentenced to fifty years in the department of corrections.

On this appeal, appellant makes three points. He contends that the trial court erred (1) in overruling his objections to the testimony of Officers Ray and Dobbins 'for the reason that the testimony introduced a distinct inference of defendant's guilt based solely upon hearsay . . .' so that the defendant was prejudiced; (2) in refusing to give an instruction for manslaughter 'for the reason that if the state had made a submissible case on murder second degree, it then became an issue for the jury to decide if the defendant was guilty of manslaughter'; and (3) 'in overruling the appellant's request for a mistrial when the state informed the jury that evidence reflecting against the appellant had been presented to the grand jury, resulting in the return of an indictment, for the reason that such argument and conduct on the part of the state (sic) attorney charged the trial atmosphere with prejudice and the jury could no longer deliberate dispassionately.'

As to his first point, appellant argues that the basic principle of the rule against hearsay is that in order to insure the truthfulness of testimonial assertions, such assertions are to be made in court and subject to cross-examination. He relies on State v. Chernick, 278 S.W.2d 741 (Mo.1955); State v. Chernick, 280 S.W.2d 56 (Mo.1955), and State v. Kirkland, 471 S.W.2d 191 (Mo.1971). In Chernick, the Supreme Court reversed the convictions because the circuit attorney was allowed to testify that immediately after he had...