State v. Hester

• Decision Date: 11 March 1968
• Docket Number: No. 47318,No. 3,47318,3
• Citation: 425 S.W.2d 110
• Parties: STATE of Missouri, Respondent, v. Lynn Wayne HESTER, Appellant
• Court: Missouri Supreme Court

Page 110

425 S.W.2d 110

STATE of Missouri, Respondent, v.Lynn Wayne HESTER, Appellant.

No. 47318.

Supreme Court of Missouri, Special Division No. 3.

March 11, 1968.

Norman H. Anderson, Atty Gen., Jefferson City, Thomas J. O'Brien, Sp. Asst. Atty. Gen., Kansas City, for respondent.

David E. Blanton, Sikeston, for appellant.

ROBERT L. ARONSON, Special Judge.

Defendant was found guilty, by verdict of a jury, of the offense of Murder in the First Degree on June 21, 1958.In due course he was allowed in forma pauperis to perfect an appeal to this court.The judgment of conviction was affirmed on February 8, 1960, in an opinion reported at Mo., 331 S.W.2d 535.

Although defendant was represented by privately employed counsel at his trial, no one briefed or argued his cause of action on appeal.This court fully complied with the requirements of its rules then in effect, and covered in its opinion the matters required to be ruled.However, subsequent opinions of Federal courts(Bosler v. Swenson, 8 Cir., 363 F.2d 154andSwenson v. Donnell, 8 Cir., 382 F.2d 248) have disapproved this procedure.Therefore the prior affirmance has been set aside, an order has been made directing the trial court to appoint counsel to brief and argue the case on appeal (which was done) and the case has now been re-presented on briefs and oral arguments.

We need not repeat in full the statement of the facts as delineated in the opinion in 331 S.W.2d loc. cit. 536; and factual references herein will be limited to the necessities in connection with our ruling on the live issues.Based on the testimony of appellant's accomplice, Joe Slayton, he and appellant left Chaffee, Missouri, on January 5, 1957, in a stolen automobile, looking for filling stations to hold up.In time they drove into Sikeston, where they saw a young man named Johnnie Malugen and a girl June parked in an automobile.Appellant suggested that they'take this girl away from her boy friend.'He stopped the stolen automobile, they both put on black masks and appellant walked to the left side of the automobile in which the couple were sitting.He opened the left door and ordered the young man out.Malugen slammed the door shut, appellant opened it again and immediately fired two shots.The girl attempted to run away, but was caught by Slayton and was raped by him.

More than a year later, in February, 1958, while confined in the reformatory at Boonville for automobile theft, Slayton wrote to his mother, in order to ease his conscience, and informed her that appellant had shot Johnnie and that he had raped June.After interviewing Slayton, the officers arrested appellant at his mother's home in Wellston on February 20, 1958.

Present counsel for defendant, while making the contentions hereinafter to be considered, says in his brief that he'has reviewed other points raised by the Motion for a New Trial, and has considered the opinion written by this court in affiriming the conviction.The cases as cited and relied upon by the court seem to have covered the points * * *.'Also, in oral argument he conceded that the court had adequately covered the points raised before, and that the opinion correctly disposed of the issues then before the court.Of course, these concessions are commendable, for no attorney is required to stultify himself by presenting arguments he cannot conscientiously assert.SeeState v. Ball, Mo., 408 S.W.2d 17, 19.

The contention now vigorously made, in several forms, is that appellant's rights against self-incrimination under the Fifth Amendment of the Constitution of the United States were violated by the use in evidence of written and oral confessions; and the case relied upon as authority is Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 13, 1966.

From the opinion in State v. Aston, Mo., 412 S.W.2d 175, loc. cit. 183, we quote: 'In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Court held that the sundry admonitions announced in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, did not apply to any prosecution in which the trial was started before June 13, 1966.They are, therefore, inapplicable here.'See alsoState v. Rapp, Mo., 412 S.W.2d 120, loc. cit. 125, State v. Holland, Mo., 412 S.W.2d 184, loc. cit. 186, and State v. Dixon, Mo., 411 S.W.2d 185, 186.

As noted at outset of this opinion, the instant case was tried in June, 1958.Therefore the Miranda case has only tangential interest, as is true also of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.Again reverting to State v. Aston, supra, 412 S.W.2d loc. cit. 183, 'In this situation we consider the 'totality of the circumstances' surrounding the making of the statements.State v. Beasley, Mo., 404 S.W.2d 689, and cases there cited and discussed, including Escobedo.See alsoState v. Craig, Mo., 406 S.W.2d 618.'

Some matters which appear in the Transcript on Appeal herein are of special significance.When the written statement, State's Exhibit A, was produced during the testimony of Deputy Sheriff Michael, the witness testified that defendant signed the statement and in his own handwriting wrote the words, 'I have read the above statement which is true.Lynn Hester.'There was then a recess to allow defendant's attorney to read the Exhibit.Following the recess the Prosecuting Attorney offered it in evidence.'The Court: Any objection?Mr. Munger (defendant's attorney): No.'The Exhibit (which incidentally is not included in the transcript) was not read to the jury until after a prolonged cross-examination of the witness.There was no complaint in defendant's Motion for a New Trial that the statement or confession should not have been received in evidence.

Thus it is clear that during the trial the defense did not assert its right to a preliminary consideration by the court of the question of the voluntariness of the confession.In effect, the admissibility of the Exhibit was conceded.

In State v. Hill, Mo., 419 S.W.2d 46, when a gun was offered in evidence, defense counsel said, 'No objection.'It was held that in this circumstance defendant had no right afterwards to challenge the admissibility of the gun in evidence.Similarly in State v. Simone, Mo., 416 S.W.2d 96, loc. cit. 100, and in State v. Holbert, Mo., 416 S.W.2d 129, loc. cit. 131--132, it was held that an affirmative waiver of a possible objection bars the later presentation of an objection.In these instances the objection was based on a theory of unlawful search and seizure.

The positive statement of defendant's privately employed counsel that he had no objections to the receipt in evidence of the written confession, and the absence of any objection to testimony of oral confessions thereafter made, could well provide adequate basis for a holding here that objection has been waived at the time of trial and cannot be presented in this court on appeal.Whether or not to make an objection, or to declare openly before the jury that there was no objection, is often a matter of trial strategy, on the part of an experienced trial lawyer, such as defendant's trial counsel in this case.However, we prefer not to rule this issue on what might be considered to be a technical ground, and we shall proceed to consider the admissibility of the confession as a voluntary statement, under the 'totality of circumstances' rule mentioned above.

As already stated, defendant was arrested at his mother's home in Wellston, about 6:25 p.m. on February 20, 1958.He was taken to the Wellston police station for a brief time and he made no complaint of any mistreatment or compulsion directed toward him there.He was then taken to the headquarters building of the St. Louis police department.Here he was questioned on the evening of February 20 and was permitted to make a telephone call to his mother.On the morning of February 21he consented to a lie detector test.In his testimony he made no complaint of his treatment at the St. Louis headquarters.On the afternoon he was taken in the automobile of Sheriff Dennis of Scott County From St. Louis to the Sheriff's office in Benton.The Sheriff was accompanied by the Police Chief of Sikeston and by the Prosecuting Attorney of Scott County.Before leaving St. Louis they had also stopped at a bank and had picked up, for the ride, the brother of the Prosecuting Attorney, who previously had been a Circuit Judge.Two stops were made en route for gasoline and food, and there was no complaint of mistreatment during that journey.The party arrived at the Sheriff's office in Benton in the early evening, variously estimated at 6:30 to 7:00 p.m.The Prosecuting Attorney and the Police Chief went on their way, and the other passenger had left the car in Cape Girardeau.The Sheriff and his Chief Deputy, Aubra Michael, questioned defendant.Deputy Sheriff Clayton brought some sandwiches and drinks.Sheriff Dennis left his office at times to attend to other business.Sheriff Scott of Mississippi County was present for a time after he brought a prisoner to Benton.Chief of Police Bruce of Sikeston was present for a time.

Defendant testified that he was told by the Sheriff and his Chief Deputy that they had the gun used in the killing of Johnnie Malugen and had found defendant's fingerprints on the gun and on the car and on the porch of the nearby house where the rape had occurred.He was also told, he said, that they had witnesses who would say he had scratches on his face.In time Joe Slayton's statement or parts thereof were read to him.Deputy Sheriff Michael was the one who read the statement of Slayton.After Slayton's written statement was read, the defendant, who previously had said nothing or claimed he did not know what his questioners were talking about, was urged that he might as well tell the truth and get it off his conscience.Finally he told them that he...