State v. Koen, s. 54926

• Citation: 468 S.W.2d 625
• Decision Date: 28 June 1971
• Docket Number: Nos. 54926,No. 1,54950,s. 54926,1
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles Enlow KOEN and Leon Henry Dent, Defendants-Appellants
• Court: United States State Supreme Court of Missouri

Page 625

468 S.W.2d 625

STATE of Missouri, Plaintiff-Respondent, v. Charles Enlow KOEN and Leon Henry Dent, Defendants-Appellants.

Nos. 54926, 54950.

Supreme Court of Missouri, Division No. 1.

June 28, 1971.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Bell, Fullwood, Wilson & Harris, by James A. Bell and Allen I. Harris, St. Louis, for appellants.

HOLMAN, Judge.

Defendants were charged with the offense of assault with intent to do great bodily harm with malice aforethought under the provisions of § 559.180. ¹ Each defendant was convicted of the lesser offense of assault with intent to do great bodily harm, without malice, and the punishment assessed was a fine of $100 and imprisonment in the St. Louis city workhouse for a term of six months. See § 559.190. Defendants have duly appealed. We affirm.

Although this was a lengthy trial, and the transcript contains more than 750 pages, we think a reasonably brief statement of the essential facts will suffice for purposes of this appeal.

The evidence offered by the State will support the following factual statement: The person alleged to have been assaulted was Rudolph Oehlert, a detective on the St. Louis city police force. On September 13, 1968, Oehlert was on duty and was driving an unmarked car accompanied by three other noticed that the car ahead of the officers noticed that the car ahead of them had no brake light. They signaled the car to the curb and found that the driver could not produce a driver's license. The car was occupied by the defendants and was being driven by defendant Koen. The defendants were arrested and taken to the Detectives Office of the Ninth District Police Station. By that time the officers had also ascertained by radio that the car had an improper license plate.

The defendants were both Negroes and were admittedly active members of an organization called 'The Black Liberators.' At the time of their arrest they were dressed in sort of uniform of that organization which consisted of black boots, black trousers, and a loose-fitting black 'dashiki type of garment.' While defendants were being questioned in the Detectives Office by Detectives Oehlert and Wachter, Dent looked at the bulletin board and saw a photograph thereon showing him holding a gun (this photograph was said to have been taken at a time when Adam Clayton Powell visited St. Louis and this defendant acted as one of his guards). Dent then said, 'If you M.F.s think that is a big gun, I'll get a bigger gun; I'll kill all you bastards. * * * I am getting tried of you honky pigs meddling with us.'

Detective Oehlert left his desk to obtain a summons book from the locker when Dent 'bolted from his chair and truck him on the right side of the head.' Oehlert testified: 'I flew up against the closet door; it dazed me; I started to fall and he was right on top of me, and he grabbed me right around the throat and started pounding my head on the floor, and while I was laying on the floor, with Dent on top of me, I could see a boot kicking me on the right side of my body.' While this occurrence was taking place Oehlert heard one of the defendants say, 'let's kill these bastards now. We'll make the City pay for this in blood.' At this point Wachter tried to pull Dent off of Oehlert and defendant Koen jumped on Wachter's back and began choking him and trying to pull him off of Dent, and also started kicking Oehlert. Koen then picked up a large chair and held it in the air, coming towards Wachter, when Sergeant Fitzgerald entered the room and hit Koen on the head with his slapper (blackjack). Detective Graft also entered the room and he and another detective pulled Dent off of Oehlert and while trying to place handcuffs on him he broke away and started again towards Oehlert. By that time Oehlert had obtained his nightstick and struck Dent with it as he approached. At the same time Detective Robertson who had entered the room also hit Dent with his slapper. The officers were then able to get Dent onto the floor and to place handcuffs on him. Koen was also struck by the officers a number of times with nightsticks and slappers and they were finally able to handcuff him.

A cruising patrol car was called and used to take the defendants and Detectives Oehlert, Wachter, and Robertson to the City Hospital. While en route Detective Wachter asked Koen why he started this fight and he answered, 'This is what I needed to get the people behind me. * * * I am after publicity and I'll do everything I can to get it.'

Detective Oehlert sustained a cerebral concussion and a sprain on the left side of the cervical dorsal region. Although he was able to walk when he entered the City Hospital he testified that he did not remember anything from the time of his injury until he awoke in the hospital later that evening. He was later transferred to Incarnate Word Hospital, and was a patient in various hospitals a number of times during subsequent months for a total of about one month. He was away from work from September 13 until December 9, and thereafter, in February 1969, was operated upon by an orthopedic surgeon who found a deep-seated torn muscle in his left shouldere area.

Both defendants testified extensively in the case. The jury obviously found the facts in accord with the State's evidence and therefore a brief reference to defendant's evidence is all that is considered necessary. It is sufficient to say that both defendants denied that they made any threats to the officers, or made any statement of a derogatory nature, or struck any of the officers. Their testimony would indicate that the officers, without any provocation, assaulted them with brass knuckles, nightsticks, and slappers, and beat them about the head and boty for a long period of time. The evidence indicated that both defendants had a number of lacerations on their heads; and that Dent had a small fracture in a bone of each hand and a fracture of the facial bone.

After being treated at City Hospital defendants were returned to jail, and shortly thereafter were released on bond and were treated at Jewish Hospital.

Defendants have briefed the point that 'the court erred in allowing the State to strike for cause venireman Diggs for the reasons: (a) the State did not have sufficient ground to strike for cause, and (b) that this allowed the State to systematically discriminate against Negroes on the jury panel.' The transcript shows that the following occurred during voir dire: 'Mr. Kitchin: Anyone here ever had a relative or a close friend arrested or charged, involved in a criminal case in any way, shape or form? Mr. Raymond Diggs (a juror): Yes. Mr. Kitchin: What did that involve, sir? Mr. Diggs: A brother; assault with--Mr. Kitchin: How long ago did that occur? Mr. Diggs: Two years ago. Mr. Kitchin: Was there an arrest made by the St. Louis police and any further action taken by the Circuit Attorney's office, to your knowledge? Mr. Diggs: Yes. Mr. Kitchin: And has he talked to you about the facts of this? Mr. Diggs: Yes. * * * Mr. Kitchin: Would that affect you in this case? Mr. Diggs: Probably would. The Court: Well, you think it would prejudice you and influence you in arriving at a decision? Mr. Diggs: Yes, sir. Mr. Kitchin: May the juror be excused, then? * * * Mr. Bell (attorney for appellants): Could you give them a fair trial based on that evidence? Mr. Diggs: Yes. The Court: Well, he is too hesitant. The Court is going to sustain him. Mr. Bell: * * * Mr. Kitchin is trying to get as many Negroes off the panel and disqualify them, and this is why he is asking this man such a question in the manner he did. I am objecting to it * * *. The Court: * * * As far as the colored folks, we have a lot of colored people on the panel. On the first panel half of them were colored. That point hasn't been raised, until now at least, and I am going to sustain it and relieve him because the man has indicated rather strongly to the Court that he has a great deal of hesitancy whether or not he can give a fair trial.'

Only subpoint 'A' will be reviewed as the matter contained in 'B' was not mentioned in the motion for new trial. This court recently stated that the 'court has a wide discretion in determining the qualifications of a venireman and its decision thereon should not be disturbed except for a clear abuse of discretion. * * * A determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on an observation of the demeanor of the venireman and, in the light of that observation, an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror. The trial judge is in a far better position to make that determination than are we from the cold record.' State v. Harris, Mo.Sup., 425 S.W.2d 148, 155. In this instance the venireman had given answers that indicated both that he was and was not qualified. The record shows that in determining the question the trial judge relied strongly on his observation of Mr. Diggs and his hesitancy in responding to certain questions. In the situation presented we think it is obvious that the trial court did not abuse its discretion in excusing Mr. Diggs.

It is next contended that the State erred in charging defendants with assault under § 559.180 when the offense shown, if any, was a violation of § 557.215 which proscribes striking a police officer while engaged in the performance of his duties. It is often true that a single act will constitute an offense under two different statutes. In that situation it is generally held that the...