State v. Jordan

Decision Date23 February 1983
Docket NumberNo. 64052,64052
Citation646 S.W.2d 747
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Reginald JORDAN, Defendant-Appellant.
CourtMissouri Supreme Court

Springfield Baldwin, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., John Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

ALMON H. MAUS, Special Judge.

The defendant was convicted by a jury of the crime of conventional second degree murder. § 565.004. He was sentenced to imprisonment for 35 years. The conviction was affirmed by the Missouri Court of Appeals, Eastern District. Upon the defendant's application the case was transferred to this Court under Rule 83.03. The basis for the transfer was the general interest in a question apparently involved in the case. That question concerns the admissibility of a prior consistent statement to rehabilitate a witness who had allegedly been impeached by an inconsistent statement made before the prior consistent statement. This opinion will borrow extensively from the perspicuous opinion of the Missouri Court of Appeals, Eastern District, written by Judge Robert G. Dowd.

The defendant does not question the sufficiency of the evidence. A brief resume will be sufficient to cast the questions presented in this appeal. Evidence supporting the verdict shows the defendant and Wesley Glenn were homosexuals living together in Glenn's upstairs apartment. On July 3, 1979, Glenn was employed as a teacher in the public school system. During the afternoon of that day the defendant was visited at the apartment by Daryl Thomas (the deceased), Don Scott and Raymond Haynes. The four spent several hours together during the afternoon. Thomas propositioned the defendant. At approximately 2:00 p.m. the defendant brought Glenn home from work. The three visitors were in the yard. Glenn left to return about 5:45 p.m. Glenn apparently felt threatened by and resented the presence of Thomas. At Glenn's request, the defendant and Haynes drove Thomas and Scott, who were "living around", to the bus station. Glenn, the defendant, Haynes and one Antoine spent the evening in homosexual bars drinking heavily. In the meantime back at the bus station, Thomas prevailed upon Scott to return to Glenn's apartment so that he could visit the defendant. They arrived at the apartment at about 3:00 a.m., July 4, 1979. They went up the stairs on the outside of the house to what was called the back door. By knocking, Thomas awoke the defendant and Glenn who were in bed together.

The defendant told Glenn to stay in bed, that he would take care of it. The defendant then told Thomas and Scott to go around to the downstairs front door. The downstairs front door was actually two doors. The defendant armed himself with a carving fork and two knives. So armed, he went down to the front door. Thomas and Scott were in the front yard. The defendant opened the front door and went into the front yard. An argument developed between the defendant and Thomas. They wrestled to the ground. The defendant drew one of the knives and stabbed Thomas.

When Thomas got up and was fleeing by climbing over a fence around the yard, the defendant stabbed him two more times in the back. Thomas got over the fence. Although he apparently collapsed after doing so, he managed to cross the street where he lay on the pavement. The defendant pursued him by going through a gate. He crossed the street and stabbed Thomas again and kicked him in the head as he lay on the pavement. By the time officers arrived Thomas had dragged himself under an automobile. The defendant told Scott he ought to also kill him. Thomas died a few hours later from ten stab wounds. Four wounds to the chest penetrated the pleural cavity. Others would have done so had they not been deflected by bone. The deceased had what was termed a defensive wound to his left forearm. The two wounds to the back appeared to the experienced medical examiner to have been delivered when Thomas was on his feet. One penetrated the muscles adjoining the spinal column to a depth of three inches.

Glenn heard the defendant yell, "He's dying". Glenn then went downstairs. He found the defendant, Scott and Thomas across the street. Glenn testified the defendant went back to the apartment, up the outside stairs and kicked in the glass in the inner door. The defendant then said to Glenn, "Don't say anything. We can beat this."

The defendant's version was that he feared Thomas and Scott were going to break in the upstairs door. So, he told them to go to the front door. He went to the front door and saw no one. He went back upstairs and got the carving fork and one knife. He returned to the front door which he opened. At first he saw no one. He then went into the yard and Scott stepped from behind a tree. Thomas approached him from behind, threatening to rape and kill him. Scott knocked the fork from his hand. Thomas threw a shirt over defendant's head. The shirt was found near the gate. The defendant then pulled a knife and when he and Thomas tussled and rolled on the ground, he stabbed Thomas. Scott did not participate in the struggle. The defendant denied stabbing Thomas as he went over the fence or as he lay on the pavement across the street. He denied that he kicked in the glass of the upstairs door. He admitted that he could have told an investigating officer that Thomas broke the glass in the upstairs door and that he then stabbed Thomas at the top of the stairs. An officer testified he made such a statement.

There was no blood found on the outside steps. Glass found on the defendant's pants matched the glass broken from the upstairs door. While in jail, the defendant wrote a letter to Glenn threatening to disclose Glenn's homosexuality to Glenn's employer and the newspapers if Glenn testified against him.

As stated, this case was transferred because the defendant asserted the trial court erred in admitting a prior consistent statement to rehabilitate a witness who had allegedly been impeached by an inconsistent statement made before the prior consistent statement. He contended that in approving such rehabilitation, the opinion of the Court of Appeals was in conflict with Nielsen v. Dierking, 418 S.W.2d 146 (Mo.1967).

This point of the defendant is based upon his hypothesis of the events at trial as follows. Glenn, on direct examination, gave the following testimony. After arranging for a neighbor to call an ambulance, he saw the defendant go up the outside stairs and break the glass in the inner door. Thereafter, the defendant said to him, "Don't say anything. We can beat this." On cross-examination, Glenn stated he did not remember telling an officer at the scene that he was awakened by the sound of breaking glass. He admitted that he did not tell the officer at the scene of the defendant's trip upstairs and following admonition. On redirect, over the defendant's objection of hearsay and cumulative, the state was permitted to show that at approximately 7:30 a.m., at the police station, Glenn gave a consistent handwritten statement which included a recitation of the defendant's trip up the stairs and admonition. That brief statement was admitted into evidence.

The defendant's attack upon this action of the trial court is many pronged. He cites no authority, but argues that Glenn was not impeached by his admission he did not remember telling the officer at the scene he was awakened by the sound of breaking glass. Those interested can see Huston v. Hanson, 353 S.W.2d 577 (Mo.1962); Annot., Denial of Recollection as Inconsistent, 99 A.L.R.3d 934 (1980). He argues that impeachment of Glenn by cross-examination without an affirmative admission of an inconsistent statement is an improper basis for the admission of a consistent statement. He cites State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945). Finally, he argues that even if Glenn had been impeached, the consistent statement referred to was inadmissible under Nielsen. See Annot., Corroboration--Consistent Statements, 75 A.L.R.2d 909 (1961); MAI-CR2d 3.52.

On the other hand, the state argues Glenn's testimony on redirect was proper under the doctrine enunciated in State v. McKinney, 475 S.W.2d 51 (Mo.1971). The court's attention has also been directed to authorities such as Hanger v. United States, 398 F.2d 91 (8th Cir.1968), approving a prior consistent statement made before the declarant had a motive to falsify. There is similar authority advocating or providing for the admission, within the discretion of the court, of consistent statements regardless of their sequence, so long as the declarant is subject to cross-examination. 4 Wigmore, Evidence § 1126 (Chadbourn rev. 1972); McCormick on Evidence § 50 (2d ed. 1972); Fed.R.Evid. 801(d); United States v. Rios, 611 F.2d 1335 (10th Cir.1979). However, it has been observed that making such statements admissible could cause a witness' credibility to become dependent upon the number of times he repeats the same story. State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972).

Unless this court is to issue an advisory opinion, this point of the defendant's must be disposed of without a reconcilation of the authorities cited and consideration of the intriguing questions mentioned. The point is resolved by a part of the defendant's cross-examination of Glenn that reads as follows:

"Q When you first talked to the police did you ever tell the police that Reginald Jordan went back upstairs and broke the glass out?

A No, I did not.

Q So it was only later that you told the police that?

A Right.

Q Is that correct?

A Right."

It was the defendant that first introduced into the case the fact that at the police station Glenn told the police the defendant went back upstairs and broke out the glass. Since the defendant made this subject pertinent to the trial, the state was properly allowed to show the circumstances of that statement. State v. Nimrod, 484 S.W.2d 475 (...

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