State v. Maxie, 57624

• Decision Date: 22 July 1974
• Docket Number: No. 1,No. 57624,57624,1
• Citation: 513 S.W.2d 338
• Parties: STATE of Missouri, Respondent, v. Thomas MAXIE, Appellant
• Court: Missouri Supreme Court

Page 338

513 S.W.2d 338

STATE of Missouri, Respondent, v. Thomas MAXIE, Appellant.

No. 57624.

Supreme Court of Missouri, Division No. 1.

July 22, 1974.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 9, 1974.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Robert G. Burridge, St. Louis, for appellant.

BARDGETT, Presiding Judge.

Defendant Thomas Maxie appeals from a conviction of murder in the second degree, a felony, for which he was sentenced to twenty years' imprisonment. Notice of appeal was filed prior to January 1, 1972. This court has jurisdiction. Mo.Const.Art. V, Sec. 31(4), V.A.M.S.

Maxie was charged by indictment filed April 28, 1970, with murder in the first degree of Rose Schuh on March 26, 1970. Trial began on October 4, 1971, and on that date an information was substituted for the indictment. The substitute information alleged that the defendant feloniously, et cetera, assaulted Rose Schuh between the 26th and 30th day of March 1970, and that she died as a result thereof during that same period. The information also included, for the first time, certain fingerprint identification witnesses. Defense counsel stated that it was unfair to permit the state to change the dates set forth in the charging instrument some 18 months after the indictment was filed but sought no relief on that ground. Defense counsel strenuously objected to the endorsement of the fingerprint witnesses stating that he had just learned of the existence of an alleged fingerprint two weeks earlier; that the state knew of the fingerprint evidence for 18 months; that it is basically unfair to allow the state to endorse key witnesses for the first time some 18 months after the indictment was filed; that he first got the names of the new witnesses on the previous Friday (three days before trial); and that he did not have sufficient time to investigate or prepare his defense as to the fingerprint evidence, claiming surprise.

Defense counsel noted that the defendant was constitutionally entitled to a speedy trial and specifically refused to request a continuance of the case and he further objected to any continuance. The relief sought was an order refusing to permit the state to endorse or use the fingerprint witnesses--nothing more or less. The court overruled the objection to the endorsement and use of the additional witnesses and the trial proceeded.

Defendant contends the court erred in allowing the state to change the dates in the charging instrument. Although defendant noted in the record that 'it hardly seems fair, right or proper' to allow the state to change the dates when a defendant has formulated an alibi for the original date and is then confronted some 18 months later with different dates, there was no relief requested on this ground and defendant refused to request and objected to any continuance. The point is overruled, see discussion infra.

Error is claimed in the court's action in overruling defendant's objection to the endorsement and use of the fingerprint witnesses.

There is no question but what fingerprint evidence was essential to the state's case and, without these key witnesses, the state would have failed to make a submissible case, as will be seen infra. About two weeks before trial, defense counsel was informally informed that the state had evidence of a fingerprint but, as noted supra, the state did not endorse witnesses who could testify as to fingerprints until the morning of the trial even though such evidence and the witnesses were known to the state for about 18 months.

The assistant prosecutor took the position that the state has the unrestricted absolute right to endorse witnesses anytime before trial. The prosecutor was incorrect. S.Ct. Rule 24.17 V.A.M.R.; State v. Lee, 491 S.W.2d 317, 323 (Mo. banc 1973). And for the future, see also S.Ct. Rule 25.30, 29 J.Mo. Bar 554--560 (1973), effective July 1, 1974.

The trial court did not err in allowing the state to endorse the additional witnesses in this case. Most of the cases involving the late endorsement of witnesses also involve the trial court's refusal to grant a reasonable continuance so as to permit the defendant to investigate the new evidence and prepare a defense thereto. See annotation under S.Ct. Rule 24.17. In the instant case defense counsel categorically stated to the court that he did not want a continuance and would object to any continuance. Defendant's position seems to be that he was not required to consent to a continuance because to do so he would have to sacrifice his constitutional right to a speedy trial.

The court does not believe that a reasonable continuance would have deprived defendant of his constitutional right to a speedy trial. The refusal of any continuance of the trial places defendant in a position where he cannot complain of being put to trial. State v. Robinson, 263 Mo. 318, 324, 172 S.W. 598, 600(1) (1915). The point is overruled.

Defendant contends the evidence was not sufficient to support a conviction.

The evidence was sufficient to support findings that Henry and Rose Schuh were the only occupants of a four-family-apartment house at 1618 North 16th Street, St. Louis, Mo., living in a first-floor unit. On Monday, March 30, 1970, a letter carrier, who delivered mail to and knew Mr. and Mrs. Schuh, noticed that Saturday's mail (March 28th) was still in their mailbox and the rear door, near the mailbox, to their apartment was ajar. He had been asked to see if they were all right by another person in the neighborhood so he looked in and saw the body of Henry Schuh on the kitchen floor and the police were called. Officer Day arrived about 9:20 a.m. Mr. Schuh was on the kitchen floor dead and Rose Schuh was on the living room floor and also dead. There was dried blood all around. He identified photos taken at the scene, one of which showed the position of Rose Schuh's body as he found it with her skirt pulled up.

The middle room of the apartment was the bedroom in which there were a chifforobe with drawers and doors open and a clutter of various papers and debris scattered about. Among these papers was a small cardboard box top measuring 1/2 3 6 1/2 inches. This box top, along with other items, was removed and kept by the police. Several prints were found on this box top, some smudged and some good prints. Fingerprint experts testified as to the manner used to lift and identify fingerprints. The left thumbprint of defendant was on the box top.

One Franklin Lindsey ¹ was arrested on April 2, 1970, at about 11:00 a.m. and defendant Maxie was arrested the same day at about 4:00 p.m. On April 2, 1970, Detective Spavor located a baseball bat in the basement of a vacant house at 1611 North 16th Street, which was supposedly the weapon used to kill Henry and Rose Schuh.

Joseph Stevens, a criminologist with the St. Louis police department, whose duties included the scientific examination of physical evidence from crime scenes and whose qualifications are not questioned testified that he examined the baseball bat and the blood-stained, checkered plaid, flannel shirt worn by Rose Schuh at the police department laboratory. Several pieces of hair and glass were held to the bat by a red sticky substance. A thread of material was embedded under a splinter in the bat. A microscopic comparison was made between the thread found on the bat and threads taken from Rose Schuh's shirt. It revealed that the threads were of similar material; the colors were the same; the number of fibers in the thread were the same; and the degree of wear was the same. Although thousands of shirts would be made from the same bolt of cloth, the shade will alter with age, number of washings, conditions of storage--all of which the witness categorized as 'the degree of wear'. The degree of wear of the fibers from the bat and from the shirt was the same. The witness, over objection, testified that there is a 'high probability' that the fibers came from the same shirt and that: 'I feel from my own mind they did come from the same shirt. I cannot state with absolute certainty that they did.' The bat was admitted in evidence over defense objection that it had not been connected to defendant nor with the crime.

An autopsy was performed on the body of Rose Schuh. It revealed a fracture of the left side of her lower jaw in two places; multiple lacerations of the scalp, one on the left side of the forehead, and about three on the back of her head varying in length from one to three inches; swelling of the brain and areas of contusion on the left side of her brain; congestion of the lungs with a large amount of blood present within the bronchial tree of both lungs. Death was due to cerebral concussion and contusion and fracture of the lower jaw with aspiration of blood into the lungs. The autopsy was done at 2:00 p.m. on March 30, 1970, and the doctor estimated Rose Schuh had died 18 to 24 hours prior thereto.

The defendant's evidence consisted of the testimony of two women who lived across the street from the Schuhs and the defendant himself. The two women testified they had seen Rose Schuh on the morning of Sunday, March 29, 1970, when Rose fed the dogs of one of the women. One of the women testified Rose said to her that she had fried some pancakes for the dogs that morning.

Defendant testified that he did not know the Schuhs; knew nothing of the murder of Rose; did not recognize a photo of the front of Schuh's apartment building; had never seen the back door to the Schuhs's apartment; did not recognize the baseball bat and never saw it prior to trial; did not recognize a photo of Rose and did not know her, and had never seen the cardboard box top mentioned supra before. He denied participation in the crime. He did not recall where he was on March 26, 27, 28, of 1970, and recalled that he spent the whole day, Easter Sunday, March 29, 1970, at home at 1725 O'Fallon, but did...