State v. Jones

• Decision Date: 11 March 1980
• Docket Number: No. 61391,61391
• Citation: 594 S.W.2d 932
• Parties: STATE of Missouri, Respondent, v. Wilson Herman JONES, Appellant.
• Court: Missouri Supreme Court

Page 932

594 S.W.2d 932

STATE of Missouri, Respondent, v. Wilson Herman JONES, Appellant.

No. 61391.

Supreme Court of Missouri.

March 11, 1980.

Ronald E. Pedigo, Public Defender, 24th Judicial Circuit, Farmington, for appellant.

John Ashcroft, Atty. Gen., Jerry L. Short, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Commissioner.

Wilson Herman Jones, charged pursuant to the Second Offender Act (§ 556.280 RSMo 1969), was found guilty by a jury of murder in the second degree (§ 559.020 RSMo 1969) and sentenced by the court to life imprisonment. He has appealed from the ensuing judgment. We affirm.

A jury reasonably could find from the State's evidence that in the morning of October 1, 1977, appellant went to the home of Palmer Smith in Cape Girardeau, and the two then drove in Smith's truck to the home of Wilda Faye Leeder. From there the trio drove to a liquor store where they met Anna Belle Rhyne, who was Wilda Faye's half-sister, and her husband Herbert. This group of five then drove to the Rhyne home arriving about 2:00 o'clock in the afternoon. Thereafter, they drank a substantial quantity of beer, it being necessary on at least two occasions to replenish their supply. About 6:00 o'clock, just as it was getting dark, Smith attempted to get Wilda Faye to leave with him, but she refused, and the Rhynes told her she could stay there. About this time Smith left the house by the front door and went to his truck, but did not immediately drive away. The other four left the house by the back door and went to an outhouse. While Wilda Faye and Anna Belle were inside the outhouse, Herbert Rhyne brandished a pocket knife and there was an argument of some nature between Rhyne and appellant. The two men returned to the house. A few minutes later the two women returned, and they found Herbert lying on the floor with appellant standing about two feet away. No one else was in the room. Rhyne had received three severe stab wounds from which he later died. A few minutes later when Wilda Faye ran from the house to obtain help, appellant followed her and said: "Honey, I had to do it." He also said that Rhyne had "pulled a knife" on him. When the police arrived appellant was searched, but no knife was found on him or at the premises. One officer asked Rhyne who had stabbed him, and he replied, "a black man."

While appellant was in jail pending trial a disturbance occurred and one of the inmates referred to appellant as a "murderer," and appellant replied: "I've done it once, one more time won't hurt." On another occasion appellant told his cellmate about the altercation with Rhyne, and, as related by the cellmate, appellant said that he had stabbed Rhyne three times, indicating the places, and that he had gotten rid of the weapon. He further stated that he did not think he would be convicted because "they didn't have no eye witness or no murder weapon."

Appellant did not present any evidence.

Appellant's first point is that "the evidence presented was insufficient to sustain the State's burden of proof in a circumstantial case * * *." He relies on cases such as State v. G'Sell, 497 S.W.2d 882, 883 (Mo.App.1973), a wholly circumstantial evidence case in which it was stated that "To sustain a conviction on circumstantial evidence 'the facts and circumstances relied upon by the State to establish guilt must not only be consistent with each other, and with the hypothesis of defendant's guilt but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence.' " But, this is not a case in which the evidence relied on by the State is wholly circumstantial. The admissions by appellant are direct evidence of his guilt. State v. Stevens, 467 S.W.2d 10, 25 (Mo.1971). Therefore, as stated in State v. Baldwin, 571 S.W.2d 236, 240 (Mo. banc 1978), "Where the evidence * * * is partially direct and partially circumstantial, * * * the test as to submissibility is not that of a purely circumstantial evidence case."

In determining whether the evidence is sufficient to sustain the verdict we accept the State's evidence as true and give the State the benefit of all reasonable inferences deductible therefrom, disregarding all evidence and inferences to the contrary. State v. Stapleton, 518 S.W.2d 292, 296 (Mo. banc 1975).

To summarize the evidence, appellant and Rhyne engaged in a quarrel and then entered the house where at the time there was no one else present. In a matter of minutes thereafter Wilda Faye and Anna Belle entered the house and found Rhyne lying on the floor with stab wounds, and appellant was standing nearby. A few minutes later appellant told Wilda Faye that he "had to do it," and later while in jail he made admissions of guilt. These facts and circumstances clearly authorized the jury to conclude that appellant had inflicted the stab wounds that resulted in the death of Herbert Rhyne.

In his second point appellant contends the court erred in not suppressing "testimony of certain witnesses" who testified for the State at the preliminary hearing "because the witnesses had not signed the transcript of the preliminary hearing * * *." Appellant argues that "the failure of the State to properly preserve the testimony given at the preliminary hearing deprived (him) of his right to effective confrontation of the State's witnesses * * *," and he was "forced to trial without knowing what the testimony of State Witnesses would be since the testimony recorded, not being properly preserved, is no better than any other hearsay statement." We consider this contention to border on the frivolous.

Well in advance of the trial appellant received the transcript of the preliminary hearing, and we note that it was not until the day of trial that this matter pertaining to the failure of the witnesses to sign was first presented to the court. Therefore, if any disadvantage to appellant resulted from such failure, and we are convinced that there was none, it could not have occurred except for the failure of appellant's counsel to seek timely remedial action. Also, there is nothing in the record before this court to show that the witnesses at the preliminary hearing did not sign as then required by Rule 23.12. In order for an appeal court to review an alleged error in the trial court, the appealing party must see to it that the record on appeal incorporates the basis for the challenged error. State v. McCoy, 559 S.W.2d 298, 300 (Mo.App.1977). In addition, we note that all the witnesses for the State at appellant's trial testified in person and were subject to cross-examination. Appellant makes no contention that he was denied full cross-examination or that he was denied the right to impeach any witness by use of testimony at the preliminary hearing because of the alleged defect. Sworn testimony at a preliminary hearing, whether or not signed by the witness giving it, may be used for impeachment purposes. State v. Thompson, 280 S.W.2d 838 (Mo.1955); State v. Rodebush, 487 S.W.2d 531 (Mo.1972). Finally, we note as a matter of interest that the provision in what was Rule 23.12 that "In all cases of homicide, the evidence given by the witnesses (at a preliminary hearing) * * * shall be signed by the witnesses respectively" has been amended to eliminate the signing requirement. See Rule 22.08 as amended July 27, 1979. Appellant totally fails to demonstrate prejudice.

Appellant's third point also borders on the frivolous. The substance of the point is that pursuant to his request for discovery the State furnished him typewritten copies of the statements of certain police officers who were prospective witnesses instead of the original handwritten statements containing the signatures of those witnesses.

Rule 25.32, in effect at time of trial, required the State, "upon written request of defendant's counsel" to disclose, among other things, "the names and last known addresses of persons whom the state intends to call as witnesses * * * at the trial, together with their written or recorded statements, * * *." The record before this court does not contain any such "written request," but it appears that the parties agree that such a request was filed. We again note that although typewritten copies of the statements were furnished well in advance of trial, the above contention was not presented to the court until the day the trial started. The original handwritten and signed copies were immediately made available to appellant when he belatedly requested them. Appellant makes no attempt to demonstrate in what manner he was denied any information that would have been available to him if he had received the original statements at the time he received the typewritten copies.

Assuming that the State was in noncompliance with the Rule when it furnished appellant's counsel only the typewritten copies, but we do not so rule, the mere failure to disclose does not, in and of itself, entitle appellant to a new trial, but it must be shown that nondisclosure resulted in fundamental unfairness, State v. Davis, 556 S.W.2d 45 (Mo. banc 1977); State v. Harrington, 534 S.W.2d 44 (Mo. banc 1976), and this appellant has not done. The point is totally without merit.

During voir dire examination by the State the prosecutor made the following statement:

"This is a case where the Defendant has been charged with murder, a crime that allegedly occurred in Cape Girardeau County. It is in this county on change of venue. The questions I ask you are the questions I have a duty to ask in order to properly represent the State."

No other comment was made during the trial regarding the change of venue. Appellant interposed no objection, but after the State concluded its voir dire examination (eight pages later in the transcript) appellant moved for a mistrial because the "State is not entitled to a change of venue and he mentioned the...