State v. Jones, 36278

Decision Date18 November 1975
Docket NumberNo. 36278,36278
Citation532 S.W.2d 772
PartiesSTATE of Missouri, Respondent, v. James H. JONES, Appellant. . Louis District, Division Two
CourtMissouri Court of Appeals

John C. Danforth, Atty. Gen., Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Cir. Atty., Arthur Friedman, Asst. Cir. Atty., St. Louis, for respondent.

Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for appellant.

CLEMENS, Presiding Judge.

The State charged defendant James H. Jones with first-degree murder by shooting Unes Johnson, and with felonious assault by pistol-whipping. Wardell Johnson, Unes Johnson's father. The jury found defendant guilty of both charges, assessing punishment at life imprisonment for murdering Unes Johnson and five years' imprisonment for feloniously assaulting Wardell Johnson. Judgment and this appeal followed.

Defendant now raises two points: Error in admitting a police technician's testimony that the size of powder marks on Unes Johnson's clothing indicated the distance from which defendant fired the fatal shots, and cross examining defendant about not having told the arresting police officers about self-defense, to which defendant had testified on direct examination. A summary of the evidence follows.

The State produced seven eye witnesses to the shooting. Twenty-some fellow employees were having a barbecue at a public park; Unes Johnson and his father Wardell Johnson were serving the food. Defendant Jones joined the group and both Johnsons finally denied his repeated, profane demands for more food. The three men argued violently and defendant cursed and threatened to kill both Unes and Wardell Johnson, but the men were separated by others. Later, as the picnic was breaking up, defendant put a case of someone else's beer into his car. When he returned to the picnic group he had a pistol sticking out of his pants picket. He 'challenged' Unes Johnson, pulled out the pistol, and when two or three feet away, fired one shot into him; as Unes backed away defendant shot him three more times. Defendant then pointed the pistol at Wardell Johnson; they struggled and defendant struck Wardell with the pistol.

Defendant then drove away but police soon stopped his car, arrested him and seized a pistol from the car trunk. At trial a police technician testified bullets taken from Unes Johnson's body had been fired from the seized pistol.

Defendant testified he was not carrying a gun that day but Unes Johnson was; that they quarreled and defendant tried to disarm Unes Johnson. As they struggled for the gun four shots were fired, each striking Unes Johnson. (Not one witness supported any part of defendant's version of the shooting.) After defendant shot Unes Johnson, Wardell Johnson interceded, hitting defendant with a radio; defendant retaliated by striking Wardell Johnson with the pistol he said he had taken from Unes Johnson. As defendant left the picnic he hid the pistol in the trunk of his car, from which the police took it after they arrested him.

We will mention other testimony as it relates to the points raised on appeal.

Defendant's first contention of error concerns testimony of Officer Paul Reeder, a firearms technician with the St. Louis Police Department. Reeder had testified on direct examination he examined the bullets removed from the victim's body and the pistol seized from defendant's car, that the bullets had been fired from that pistol. On cross examination defense counsel referred to previous testimony that there were bullet holes in Unes Johnson's clothing, each surrounded by an area of lead residue, one being half an inch in diameter and another three quarters of an inch. Defense counsel continued to cross examine Reeder to show his opinion that these lead residue marks indicated the pistol had been fired when close to Unes Johnson's body. On redirect examination Reeder testified the three-quarter inch residue mark on the victim's clothing indicated that shot was fired from a distance of two-and-a-half to three feet. The court overruled defendant's objection that there was 'no foundation laid for that; he hasn't tested it.'

We note that on direct examination of Officer Reeder the State did not seek his opinion about distance between the defendant's gun and Unes Johnson when shots were fired. That subject was broached by defense counsel to show the pistol was close to the victim when fired. The State's redirect examination, to which defendant objected for lack of foundation, merely pursued the subject to show how close.

We deny defendant's contention of error in permitting the State's redirect examination of Officer Reeder. It is barred 'by the rule which precludes a defendant from asserting error on the basis of the state's presentation of evidence to clarify or explain matter brought into the case by the defendant's own questions.' State v. Holmes, 419 S.W.2d 15(1, 2) (Mo.1967); and see State v. Matha, 446 S.W.2d 829(3) (Mo.1969).

Defendant's main emphasis is that the State erroneously cross examined him about not having told the police when arrested that he had shot Unes Johnson in self defense, contending this violated his right to avoid self incrimination.

After defendant had testified to his self-defense version of the shooting, counsel for the State cross examined him:

'Q. Did you tell this story to the police?

A. No, I did not . . .

MR. LANG: I move for mistrial. He has commented on his (defendant's) right to refuse to make any statement to the police . . . I ask that his answer be stricken and the jury be instructed to disregard and a mistrial be declared . . .

THE COURT: You got the police in there. The objection is sustained. The motion for a mistrial is overruled. In am going to order the matter stricken and the jury to disregard it. . . . Members of the Jury, the question whether or not he made a statement to the policeman and his answer are ordered stricken from the record. You are instructed to disregard that question and answer in your deliberations in this case.'

The State neither pursued the testimony of defendant's silence in cross examination nor referred to it in closing argument.

Defendant now challenges the quoted question about his silence, contending that mentioning his failure to make an exculpatory statement to police violated his right against self incrimination. We agree.

Defendant cites a long list of cases to support his contention. 1 The oldest of defendant's first three cited cases is State v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127(3--7) (1940). It lays down the settled rule that '. . . the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make any statement.' Next is defendant's cited case of State v. Dowling, 348 Mo. 589, 154 S.W.2d 749(4--8) (1941). There the state repeatedly asked a police officer about what defendant had said when arrested and answered that defendant refused to say anything. Defendant unsuccessfully objected and moved for a mistrial. The supreme court reversed, relying on Bowdry, supra. The third cited case is State v. Vainikos, 366 S.W.2d 423(4, 5) (Mo.1963), a concealed weapons case. In that case a police officer testified to a series of questions to, and answers by, the defendant showing that defendant refused to say why he was carrying the gun. As in Dowling, supra, defendant's objection was overruled and his motion to strike was denied. In reversing the supreme court followed the exclusionary rule in Bowdry, supra, holding the trial court erred in denying defendant's motion to strike, and pointing out that evidence the defendant had refused to answer the police officer's question while under arrest could have been considered by the jury in its determination of defendant's guilt.

We have also considered other cases cited by defendant and those annotated in Mo.Dig., Criminal Law k407(1, 2). Those cases do not categorically hold the mention of a defendant's silence ipso facto requires a mistrial. The cases do uphold the general principle it is error to introduce evidence of a defendant's silence while under arrest, but there are many variables--whether it was defendant or another witness who mentioned his silence, whether defendant refused or merely failed to make a statement, the degree of emphasis placed on that evidence, its repetition, defense objections thereto and...

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  • State v. Stolzman, 16777
    • United States
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    ...principles apply. Missouri condemned references by prosecutors to an accused's post-arrest silence prior to Doyle. State v. Jones, 532 S.W.2d 772, 774-75 (Mo.App.1975). Missouri cases have held, however, that a mistrial is not the inevitable remedy when such references are made. State v. Bo......
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    • 6 Mayo 1976 the first degree and felonious assault. The convictions were affirmed by the Missouri Court of Appeals, St. Louis District. State v. Jones, 532 S.W.2d 772. The petition alleges two grounds for relief, both of which were ruled adversely to petitioner by the Missouri courts. After examinat......
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    ...error was so prejudicial that the action of the trial court did not remove the prejudicial effect, as a matter of law. State v. Jones, 532 S.W.2d 772, 775 (Mo.App.1975). In the case at hand, the court took remedial action following Ms. Houston's comment that Mr. Newson would kill again. Spe......
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