State v. Larkins, 35568

• Decision Date: 30 December 1974
• Docket Number: No. 35568,35568
• Citation: 518 S.W.2d 131
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert L. LARKINS, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 131

518 S.W.2d 131

STATE of Missouri, Plaintiff-Respondent, v. Robert L. LARKINS, Defendant-Appellant.

No. 35568.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 30, 1974.

Gartenberg & Gilmore, Stephen H. Gilmore, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Jefferson City, Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Brendan Ryan, Circuit

Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

Defendant, Robert Lee Larkins, appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis, Missouri, on a jury verdict, finding him guilty of manslaughter (Count I), § 559.070, RSMo 1969, V.A.M.S., and assault with intent to kill with malice (Count II), § 559.180 RSMo 1969, V.A.M.S. Pursuant to § 556.280 the court sentenced defendant to the custody of the Missouri Department of Corrections to serve consecutively 10 years on Count I and 15 years on Count II.

For reversal defendant contends that the court erred (1) by admitting a video tape confession without defendant being sufficiently warned; (2) by submitting to the jury an instruction pertaining to the voluntariness of the confession which did not meet the Miranda test; (3) by permitting, during trial, the endorsement of witnesses contrary to Rule 24.17, V.A.M.R.; (4) by permitting the introduction of exhibits which tended to prove the perpetration of crimes other than those charged; (5) by failing to sustain his motion for judgment at the close of all the evidence; (6) by permitting inconsistent judgment between the two counts to stand; and (7) by refusing to strike the prior felony conviction.

On Saturday, September 9, 1972, defendant met his brother Freddie, who took him to a place where another brother John was being threatened by six men. When defendant attempted to assist his brother to escape, one of the men threatened him with a knife. A little later the same group of men saw defendant, fired three shots at him, and chased him up the street. After this incident, later that evening, defendant borrowed a revolver from his brother John.

On the next day defendant, while riding in an automobile, saw one of the men who had previously shot at him in front of the Big Q tavern. Defendant told the driver to pull around the corner. He got out of the car, walked through a lot to an alley and proceeded to walk eastwardly in the alley toward Vandeventer Avenue. As he walked out of the alley, he saw 'Little Robert,' who was the man on Saturday who had ordered that defendant and John be shot. As defendant emerged from the alley, according to defendant, Little Robert turned toward him and appeared to come right at him. Because of his apprehension of danger created by Little Robert's movements, defendant drew and fired his revolver five times at Little Robert. No witness at the scene was able to identify defendant as the man who fired the weapon.

Lieutenant Robert Truetken, who was operating a police vehicle north on Vandeventer Avenue, approaching Washington Avenue, testified that he observed a man run from the west to the east side of Vandeventer and also saw another subject run from the west side of Vandeventer and proceed east on Washington Avenue. He neither saw any shooting nor heard any shots. However, he followed the second subject, later identified as Robert Holland, and found him lying face down in front of 3851 Washington Avenue.

After Officer Truetken found Robert Holland lying on Washington Avenue, he later found out that four people had been shot at the Big Q tavern located at 611 Vandeventer Avenue. Upon his arrival at the tavern, he found Johnnie William Hawkins lying face down in the doorway. He remained at the scene until the body was removed.

Patrolman Terry McDermott conveyed the man lying in the doorway to Homer G. Phillips Hospital and was present when the doctor pronounced the subject dead. Then he conveyed the deceased to the morgue some time between 11:00 P.M. and 11:25 P.M Robert Holland, although unable to identify his assailant, testified that Ronnie Morris and August Robinson were present at the scene of the shooting. Also he testified that he had been present in the vicinity when shots had been fired at defendant's brother.

Betty Hawkins, the wife of the deceased, who also saw her husband at the morgue, identified pictures taken at the morgue as her husband, Johnnie Hawkins. His mother, Mrs. Frankie Hawkins, testified that she not only saw her son lying in the doorway of 611 Vandeventer but also remained with him and identified his body at the hospital.

Some confusion arose in the evidence because Dr. J. J. Thomas, the coroner's physician, testified that the picture shown him of the deceased was not the man he had performed the autopsy on. On the other hand, there was substantial evidence introduced which showed that the doctor was mistaken. Other evidence, if needed, will be set forth in the opinion.

First, we consider defendant's claim that he was not adequately advised of his rights prior to the making of the video tape confession.

At trial, defendant objected specifically that the police officer left the erroneous impression with the defendant that if an attorney was to be appointed for him he would be selected by the police. Since this was his precise objection at trial, he may not alter or broaden the scope of his objection on appeal, State v. Atkins, 494 S.W.2d 317, 319 (Mo.1973); State v. Davis, 482 S.W.2d 486, 489 (Mo.1972).

Both parties agree that the statement made on the video tape is substantially the same as the written statement given by defendant prior to the video tape statement. On this appeal there has been no challenge made to either the oral or the written statement. While we have some doubt as to whether the warnings given did not fall within the condemnation of State v. Evans, 439 S.W.2d 170 (Mo.1969), we do not rule the point, because, if error, the error was harmless. Here we find that on three prior occasions the defendant was properly advised of his rights: (1) to remain silent, and that anything he said could and would be used against him in court, and (2) to counsel, and if he could not afford an attorney one would be appointed for him and counsel would be permitted to be present during the questioning, if defendant so desired. This scenario took place twice during the initial questioning of defendant; once, by himself, at home on September 14, 1972--the second time in the presence of his father, and again at police headquarters defendant was given the above warnings prior to his giving a written statement. Consequently, when defendant, later in the evening on September 14, 1972, was given a statement of his rights, it made the fourth time in a very short period of time that his rights had been explained.

In Evans v. Swenson, 455 F.2d 291, 294--296 (8th Cir. 1972), involving the same defendant, contrary to the dicta of our Supreme Court in our Evans case, supra, the Eighth Circuit Court of Appeals, in a decision on the merits, held that the warnings given to defendant were sufficient to advise him of his constitutional rights. Also the court in Evans v. Swenson, supra, stated, '. . . the 'Miranda' warning need not be repeated in full each time the interrogation process is resumed after an interruption . . .' See also Tucker v. United States, 375 F.2d 363, 366--369 (8th Cir. 1967), cert. denied 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed.2d 189; People v. Sievers, 255 Cal.App.2d 34, 62 Cal.Rptr. 841 (1967). All told under the circumstances presented herein error, if any, is harmless; first, because the record shows on the initial occasion, by himself and later in the presence of his father, he was adequately warned of all his Miranda rights; secondly, at the police station prior to his giving a written statement he was adequately warned; and thirdly, prior to his giving the video-taped statement once again he was warned of his right; and finally, the record shows all these warnings were given in a very short time sequence. Consequently, in our opinion, the claimed error, if so, is harmless, because the record shows that defendant was aware not only of his rights, but also of the consequences of waiving them which we find he did knowingly and understandingly; therefore, we rule this point against the defendant.

Inasmuch as defendant failed to set out the alleged erroneous instruction in the argument portion of his brief as required by Rule 84.04(e), V.A.M.R., we hold that defendant has failed to preserve his second point for review, State v. Mesmer, 501 S.W.2d 192, 197 (Mo.App.1973).

Thirdly, defendant claims that the court erroneously permitted the state to endorse Mrs. Helen Taylor, the coroner of the City of St. Louis; the wife, Mrs. Betty Hawkins and Mrs. Frankie Hawkins, the mother of defendant, after the commencement of the trial, Rule 24.17, V.A.M.R. He argues that none of the three were rebuttal witnesses and that the state knew of their existence. Hence, each should have been endorsed earlier.

Granted that the purpose of Rule 24.17 is to discourage the delay in the endorsement of additional witnesses, our courts often recognize that late endorsements may be permitted if they can be made without undue prejudice to the defendant, State v. Strawther, 476 S.W.2d 576, 579 (Mo.1972); State v. Cobb, 444 S.W.2d 408, 415 (Mo. banc 1969). Even defendant concedes that the trial court is vested with broad discretion in permitting late endorsements of witnesses, but he contends that in this instance the discretion was abused. We think not.

Obviously, Mrs. Taylor, the coroner, who identified and testified concerning official records of the deceased in her office was a witness who, under Rule 24.17, required no prior endorsement. State v. Arrington, 375 S.W.2d 186, 191 (Mo.1964); State v. Malone, 301 S.W.2d 750, 756 (Mo.1957).

Mrs. Frankie Hawkins' testimony consisted of...