State v. Humphrey
| Decision Date | 11 January 1971 |
| Docket Number | No. 2,No. 55607,55607,2 |
| Citation | 462 S.W.2d 804 |
| Parties | STATE of Missouri, Respondent, v. Jerry HUMPHREY, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Craig A. Van Matre, Asst. Atty. Gen., Jefferson City, for respondent.
Robert C. Babione, St. Louis, for appellant.
BARRETT, Commissioner.
A jury found the appellant Jerry Humphrey guilty of tampering with a motor vehicle, the information charged that he feloniously 'did drive, use and operate a certain motor vehicle, to wit: an automobile, to wit: Chevrolet make, 1961 model; the property of John Hunter without the permission so to do of John Hunter.' RSMo 1969, § 560.175, V.A.M.S. Since Jerry had a prior felony conviction the court fixed his punishment at five years' imprisonment. RSMo 1969, § 560.180.
In brief, the circumstances of the charge and conviction were these: Hunter owned a black 1961 Chevrolet. On Saturday night, October 25, 1969, between 10:30 and 11 o'clock Hunter parked and locked his automobile at his residence, 2311 Dickson. About 1:30 in the morning, the 26th, Hunter's wife looked out a window and the automobile was missing. Hunter next saw and identified his automobile in police custody, the 'little side glass was broke' and the ignition had been disconnected or unlocked. Hunter testified that he had not given Humphrey or any other person permission to open, drive or operate his Chevrolet. Patrolman Edwards, cruising east in the 5100 block of Delmar was attracted to a 1961 black Chevrolet traveling west, Jerry Humphrey driving, because the hood was up and there was a coat on the left fender. The officer stopped the automobile, Humphrey was alone in the car, got out on request on the driver's side. The officer had been informed that the automobile had been involved in an accident. He inquired about the hood, advised Humphrey of his rights and took him to the hospital. Laverne Jackson testified that as she crossed the street at Kingshighway and Enright at 1:30 a.m. with her coat on her arm she was brushed or struck by a passing automobile and her coat jerked from her arm. Laverne identified the coat Patrolman Edwards took from the fender. These circumstances, needless to say, support the charge and the jury's finding and verdict. State v. Edmonson, Mo., 309 S.W.2d 616.
The appellant does not challenge the sufficiency of either the information or the proof, his claim is that for five reasons he is entitled to a new trial. The first two of his claims are an attempt to invoke the rules applied in State v. Dowling, 348 Mo. 589, 154 S.W.2d 749 and, inferentially in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Dowling case involving the state constitutional and statutory safeguard against self-incrimination. Specifically the appellant's two points involve the rules, one, 'that silence of the accused when not under arrest, and in circumstances such that only a guilty person would remain silent, may be shown,' two, '(a)fter arrest or while in custody the evidence is inadmissible because he is under no duty to speak.' State v. Phelps, Mo., 384 S.W.2d 616, 621. It should be carefully noted that in the Dowling case the defendant was under arrest and refused to explain his absence or say where he had been for a year when he was sought in the Londe bombing. And in State v. Phelps the defendant was under arrest and when questioned 'about this robbery' he 'just refused to answer questions at all.' These rules were most recently involved in State v. Stuart, Mo., 456 S.W.2d 19, a conviction of burglary and stealing. But there, it should be carefully noted, the state's case was for the most part dependent on the defendant's recent possession of stolen property, rifles, a radio and 'a variety of coins.' A juror asked the question 'Did either one of these guys claim that money?' The court applied the rules announced in the Dowling and Phelps cases and held that the admission of the evidence of the officer's negative answer 'constitutes an invasion of an accused's constitutional rights.' Other cases truly involving these principles are State v. Battles, 357 Mo. 1223, 212 S.W.2d 753 and State v. Vainikos, Mo., 366 S.W.2d 423.
In the trial of this cause the two incidents claimed as falling within the noted cases occurred during the examination of Patrolman Edwards. The first incident was this: He had told about stopping the automobile, the hood up, the coat on the fender and then he said, 'I went back to the scene where the accident occurred.' There was an objection of irrelevancy but the officer continued with his answer 'where I asked him for a statement which he refused to give me.' The second incident was this: Patrolman Edwards testified that he had checked out the vehicle and found that it belonged to Hunter. Then there was this question and answer: As indicated, the appellant urges that these two incidents fall within the condemnation of the Stuart, Phelps and Dowling cases.
The difficulty with appellant's claims is that the quoted questions and answers are not all that occurred. As soon as the officer volunteered 'I asked him for a statement which he refused to give me,' there was a motion by the defendant, out of the jury's hearing, for a 'mistrial'--the only objection made. Immediately the court said, 'I will sustain your objection and have the jury disregard it and have it stricken from the record,' but the court refused to declare a mistrial. The next step in the trial was the court addressing the jury In passing it may be said that it is not perfectly clear from the record whether the officer's request to Humphrey was for a statement as to the accident he was going back to or whether it referred to the title or possession of the automobile, since the latter question of title came later the inquiry may have related to the accident. As to the title to the automobile as soon as there was an objection the court said, 'I am going to sustain it.' But again counsel insisted on a mistrial. The court directed the jury 'The objection of counsel will be sustained and the jury instructed to disregard the last statement of counsel (sic).' It was not until after all these events and the noted testimony that Officer Edwards said he arrested the appellant and 'conveyed him to the hospital.' The appellant now argues that the fact of the court's instructing the jury to disregard the officer's statements only 'aggravated the situation by calling attention to the nature of the objection.' But in all the circumstances and as to both incidents it may not be said that the court so abused its discretion that this court should grant a new trial. State v. Starks, Mo., 459 S.W.2d 249; Holt v. State, Mo.. 433 S.W.2d 265; State v. James, Mo., 347 S.W.2d 211; State v. Statler, Mo., 331 S.W.2d 526; State v. Ulrich, Mo., 316 S.W.2d 537 and State v. Tellis, Mo., 310 S.W.2d 862.
Laverne Jackson was not endorsed as a witness on the information when it was filed on December 11, 1969, and it is now urged that the court erred in permitting her to testify, particularly because the defendant did not have an opportunity to interview her before she testified. The appellant here relies on State v. Berstein, Mo., 372 S.W.2d 57, a case in which a lately endorsed witness was in jail and at the direction of the state's attorney defendant's counsel was denied permission to interview the witness. There the court applied the principle that one accused of crime should ordinarily be permitted to interview an endorsed witness in custody. Annotation 14 A.L.R.3d 652, 655. But again as with the two previous...
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State v. Tressler
...broad discretion in whether a new trial should be given in such circumstances. State v. Parks, 331 S.W.2d 547 (Mo.1960); State v. Humphrey, 462 S.W.2d 804 (Mo.1971). We find nothing in the record to support a finding that the trial court abused that discretion. Incidentally, we also note in......
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...that the record of the prior conviction referred to the defendant, whom the court had before it in making its ruling. State v. Humphrey, 462 S.W.2d 804, 808(4) (Mo.1971); State v. Trevino, 428 S.W.2d 552, 554(3) (Mo.1968). Defendant's second contention has no merit. Though not mentioned in ......
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State v. Tate, 35442
...or operating a motor vehicle without the owner's consent has been so charged along with tampering with a motor vehicle. State v. Humphrey, 462 S.W.2d 804 (Mo.1971); State v. Townsend, 327 S.W.2d 886 (Mo.1959); State v. Edmonson, 309 S.W.2d 616 (Mo.1958). In State v. Hale, 463 S.W.2d 869 (Mo......
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