State v. Lindsey

• Decision Date: 11 March 1974
• Docket Number: No. 57404,57404
• Citation: 507 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. Franklin James LINDSEY, Appellant.
• Court: Missouri Supreme Court

Page 1

507 S.W.2d 1

STATE of Missouri, Respondent, v. Franklin James LINDSEY, Appellant.

No. 57404.

Supreme Court of Missouri, En Banc.

March 11, 1974.

John C. Danforth, Atty. Gen., Vincent Fredrick Igoe, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

William A. Boles, St. Louis, for appellant.

STOCKARD, Commissioner.

Franklin James Lindsey has appealed from the judgment entered pursuant to jury verdict whereby he was found guilty of murder in the first degree of Rose Schuh, and sentenced to imprisonment for life.

A jury reasonably could find from the evidence that appellant and Tommie Maxie discussed and made plans to steal property from a house at 1618 North 16th Street in the City of St. Louis. On the evening of March 26, 1970, they proceeded to carry out their plans, and as they were preparing to go to the house Maxie said to appellant, 'Wait here, I am going to get a bat because I am going to kill somebody tonight.' When Maxie returned with a baseball bat appellant said, 'You aren't going to use that,' and Maxie replied, 'Yes, I am--are you ready?' To this appellant replied, 'Yes, I am.' On the way to the Schuh house they passed a church, and Maxie stated: 'I am going to show what I am going to do with this bat.' He then broke two of the church windows. At the Schuh house Maxie knocked on the door, and when it was opened by Rose Schuh, Maxie struck her several times with the baseball bat inflicting wounds which caused her death. Maxie then ran into the house and struck Henry Schuh, Rose's husband, with the bat inflicting mortal wounds on him. Appellant and Maxie each took items of property from the house and fled.

Appellant asserts that error resulted in overruling his challenge for cause of two veniremen. Because of the disposition of this appeal we need not rule this contention. Other contentions will be ruled because of the probability that they will arise in a new trial.

Appellant next asserts it was error to permit the jury to hear evidence of the murder of Henry Schuh because it was a separate crime with which he was not charged.

Appellant cites and relies on State v. Reed, 447 S.W.2d 533 (Mo.1969), which states that proof of the commission of separate and distinct crimes by a defendant is not admissible unless such proof has a legitimate tendency to establish defendant's guilt of the charge for which he is on trial. We recognize and agree with that general rule. However, in view of the facts on this case, the specific contention of appellant is ruled by State v. Varner, 329 S.W.2d 623 (Mo.1959). It was there said: 'If the killing of two people is all a part of one transaction the evidence as to both deaths is competent, not because it shows another crime but because the single transaction circumstantially bears upon and establishes deliberation, if not motive.' Also, as stated in State v. Millard, 242 S.W. 923, 926 (Mo.1922), if two homicides are committed 'under such circumstances as to constitute one single continuous accomplishment of a common design,' and 'the facts are so intimately related and the crimes so nearly concurrent that proof of one cannot well be made without a showing of the facts tending to establish the other,' evidence concerning all the circumstances and both deaths is admissible. See also State v. Garrison, 342 Mo. 453, 116 S.W.2d 23 (Mo.1938), and State v. Jacks, 462 S.W.2d 744 (Mo.1970).

Appellant next contends that the court erred in admitting in evidence a table model radio with a lighted dial, a transistor radio, radio ear plug and an empty box, and a ball bat 'before a prerequisite foundation had been laid * * * in that neither the ownership nor the possession of these items was ever established.'

In appellant's video taped confession, he identified the ball bat as the one carried and used by Maxie in committing the murders, and he identified the table model radio as one taken from the Schuh home by him. A police officer testified that appellant had admitted to him that he had taken the other radio from the Schuh house, and that he had pawned it. The radio ear plug and the empty box (designed to contain a transistor radio) were identified as having been found at the Schuh house by the police after the murders. In what respect these last two items were claimed to be material is not shown, and in the event of a new trial their materiality should be established.

Appellant also challenges the admission in evidence of a video tape of him giving answers to questions which constituted a confession to the crime with which he was charged, because it 'was not demonstrated to be reliable and because such evidence had such an emotional impact it obscure(d) all other evidence.'

The contention pertaining to 'emotional impact' relates to the weight to be given the evidence, not its admissibility. The State is not to be precluded from offering the best or most persuasive evidence, otherwise admissible, because it is convincing and damaging to an accused's case.

The use of a video tape to show to the jury the contents of a confession, and circumstances under which it was made, has previously been approved by this court in State v. Lusk, 452 S.W.2d 219 (Mo.1970), and State v. Hendricks, 456 S.W.2d 11 (Mo.1970). The trial court heard the testimony to the effect that video tape was an accurate reproduction of what was said by appellant and an accurate portrayal of the circumstances under which the confession was made. This court viewed the video tape at the time of oral argument. It is an excellent portrayal of appellant answering questions concerning his participation in the homicides. Restrictive rules governing admissibility of such evidence should not be such as to tie the hands of the prosecution to 'horse and buggy' methods of proof, and we find no justifiable reason why the jury should not have viewed the video tape in this case. Appellant cites a dissenting opinion in Hendricks v. Swenson, 456 F.2d 503, 507 (8th Cir. 1972), which does not, as far as we know, represent the views of any court and with which we do not agree.

Appellant contends that during the time he was making the statements which were shown to the jury on the video tape, a police officer sitting nearby prompted him as to what he should say. He contends that the video tape shows the movement of the officer's mouth, but no sound was heard, and that the court erred in not permitting the tape to be replayed, or at least parts of it, so the attention of the jury could be directed to this occurrence. The officer testified that he did not prompt appellant and the technician testified that if he had his voice would have been picked up on the sound. As noted, this court viewed the video tape, and attention was specifically called to the incidents. The tape in our opinion, does not show any prompting by the officer. At most, it may show that several times the officer made a swallowing movement. The court did not abuse its discretion in refusing to have the tape replayed, and in effect thereby comment on the evidence.

We now turn to the instructions. The court instructed the jury on murder in the first degree but not on any lesser included offense.

Murder in the first degree is defined by § 559.010, RSMo 1969, V.A.M.S., as follows:

'Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.'

The issue of first degree murder was submitted to the jury by two separate instructions.

Instruction No. 2 was a conventional submission of murder in the first degree by a willful, deliberate and premeditated killing. Appellant contends it was error to give Instruction No. 2 because it was not 'supported by the evidence.' His argument is that he did not strike Rose Schuh with the ball bat; that the only plan to which he was a party was 'to tie the old people up and to steal from them,' and that the deliberation and premeditation on the part of Maxie to kill cannot be imputed to him unless the homicide occurred during the commission by Maxie and him of one of the felonies specifically enumerated in § 559.010, RSMo 1969, V.A.M.S.

In making this contention appellant ignores some of the evidence. The deliberation and premeditation necessary to authorize a finding of murder in the first degree may be inferred from the circumstances. State v. Goodwin, 352 S.W.2d 614, 619 (Mo. banc 1962). The continuation of appellant in the plan to rob after Maxie obtained the ball bat and announced his intention to kill someone with it, clearly authorized a finding by the jury of the requisite deliberation and premeditation on the part of appellant to participate in a killing. The submission of deliberation in Instruction No. 2 was supported by the evidence.

In addition to the conventional instruction on murder in the first degree, the court attempted by Instruction No. 3 to instruct on first degree murder on the basis of the felony-murder doctrine, under the last clause of § 559.010.

Instruction No. 3, in its material parts was as follows:

'The Court further instructs the jury that under the law of this State, every homicide which shall be committed in the perpetration of stealing from a dwelling house, is deemed murder in the first degree. And in this case, if the jury find and believe from the evidence, beyond a reasonable doubt, that a homicide occurred while defendant was stealing from the dwelling house at 1618 N. 16th Street, in the City of St. Louis, Missouri, then such perpetration stands in lieu of deliberation and premeditation as hereinbefore defined, and the jury will be warranted and shall find the defendant guilty of murder in the first degree, and should say so in their verdict.'

If a homicide is committed during the actual or attempted...