State v. McClain, 27251

• Decision Date: 08 December 1975
• Docket Number: No. 27251,27251
• Citation: 531 S.W.2d 40
• Parties: STATE of Missouri, Respondent, v. Arthelle McCLAIN, Jr., Appellant.
• Court: Missouri Court of Appeals

Page 40

531 S.W.2d 40

STATE of Missouri, Respondent, v. Arthelle McCLAIN, Jr., Appellant.

No. 27251.

Missouri Court of Appeals, Kansas City District.

Dec. 8, 1975.

Joseph H. Moore, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

WASSERSTROM, Presiding Judge.

Defendant appeals from his conviction by a jury of first degree murder with a sentence to life imprisonment. He does not challenge the sufficiency of the evidence to support the verdict, so only sufficient facts will be stated to place the issues raised on this appeal in proper perspective.

On September 24, 1973, a robbery was attempted at a Safeway store, in the course of which a security guard, Virgil McGee, was shot and killed. Although two eye witnesses testified, neither could identify defendant as the killer. However, police officers testified to an oral confession by the defendant. In addition, one of the State's witnesses, Linda Johnson, testified that defendant while in her home on the night of September 24, 1973, the date of the shooting, stated that he had gone to the Safeway store to rob it and that he had shot McGee. The case was submitted to the jury on the theory of felony-murder under MAI-CR 6.19.

I.

For his first point on this appeal, defendant complains of the admission of State's Exhibit 1, consisting of a photograph of the upper portion of McGee's dead body. Defendant points out that his counsel made a formal admission in court that McGee had been killed by a .32 caliber bullet, and defendant now insists that the photograph in question was not relevant to prove anything which had not already been covered by that admission. His argument continues that 'the only possible reason for the State's introduction into evidence and the passing of the photograph to the jury was to enflame them against the defendant.'

Some cases do hold that admission of a photograph of a dead body may be prejudicially erroneous if the defendant has admitted all the relevant facts which the photograph has any tendency to prove. State v Robinson, 328 S.W.2d 667, l.c. 671 (Mo.1959) is the leading case. See also State v. Floyd, 360 S.W.2d 630, 632--633 (Mo.1962) and State v. Parsons, 513 S.W.2d 430, 439 (Mo.1974). However, Robinson and like cases can be distinguished on two grounds. In the first place, the Robinson opinion states that to designate the pictures there involved as being gruesome was 'a gross understatement.' That opinion goes on to describe the photographs there as 'extremely obscene, offensive, vulgar, horrid, and repulsive.' Exhibit 1 in this case does not begin to meet any of those characterizations, but instead is rather innocuous. Absent any inflammatory nature, the photograph would seem at worst merely cumulative and therefore non-prejudicial.

In the second place, Exhibit 1 does show an important fact not admitted by the defendant. The admission offered by defendant during the course of the trial was simply that McGee had been killed by 'a .32 caliber bullet'; that McGee had been killed on September 24, 1973, with 'a .32 bullets'; and that McGee was killed 'by gunshot wound.' The oral confession testified to by the State's witnesses was to the effect that defendant had shot two bullets at McGee, and the photograph, Exhibit 1, does show two bullet wounds. Thus the photograph corroborates the confession in a significant detail which is missing from the admission offered by defendant in open court. The admission is confined to a singular shot and a singular wound, or at least it is ambiguous with respect to the possibility of there being more than one shot and one wound. The State was entitled to offer and exhibit the photograph in order to prove that defendant's oral confession to the police corresponded with the physical facts.

II.

Defendant next complains that the State was permitted to cross-examine defendant's wife beyond the scope of her direct examination, in contravention of § 546.260 RSMo 1969. Defendant had called his wife Leanna McClain as a witness to contradict Linda Johnson who had testified on behalf of the State that defendant had stated in her home in the presence of her and Mrs. McClain that he, the defendant, had shot McGee in the course of an attempt to rob the Safeway store. Mrs. Johnson also testified that on that occasion defendant had a bandaged hand. Mrs. McClain, on the other hand, testified that while she had frequently been in the Johnson home, she had never heard defendant make any such statement nor could she remember him ever being in the Johnson home while having a bandaged hand. In the course of this direct testimony Mrs. McClain disclaimed the ability to remember any specific date upon which she had been in the Johnson home.

The prosecutor after considerable cross-examination succeeded in getting Mrs. McClain to admit that she had been in the Johnson home on the evening of September 24, 1973, but she then claimed that on that occasion she was there alone, unaccompanied by defendant. The prosecutor further attempted, although unsuccessfully, to secure an admission from Mrs. McClain that defendant had an injured hand on the evening of September 24, 1973, and she disclaimed being able to remember whether she had made a statement to the police on this subject.

This probing constituted legitimate subject of cross-examination by the prosecutor. This related to the precise matters disputed by the conflicting testimony of Mrs. Johnson and Mrs. McClain. This cross-examination therefore fell directly within the permission of § 546.260 which provides that if a wife be called to testify on behalf of the defendant then she 'shall be liable to cross-examination, as to any matter referred to in (her) examination in chief, and may be contradicted and impeached as any other witness in the case.'

III.

Closely related to the point discussed immediately above, defendant also argues that the State was improperly permitted to contradict Mrs. McClain by a prior inconsistent statement given by her to the police. Defendant says that this prior inconsistent statement was not proper rebuttal and that it went to impeachment on a collateral matter.

Attending to the latter part of that argument first, the prior inconsistent statement did not go to a collateral matter. Mrs. McClain had been called by defendant for the specific and sole purpose of contradicting Mrs. Johnson who had supplied a major part of the State's case by testifying to defendant's admission that he had shot McGee while attempting a robbery of the Safeway store. The State had every right to attack Mrs. McClain's veracity as to that matter which was the one and only subject for which she had been called to testify by the defense.

Defendant's major emphasis under this point, however, is that Mrs. McClain's statement to the police did not really rebut her testimony to the effect that she could not remember a specific date when she was in the Johnson house with the defendant and that she could not recall the date upon which defendant had an injury to his hand. On this point, defendant argues that 'the only proper cross-examination of the witness or rebuttal testimony would be that she in fact did remember being at the Johnsons on the 24th or 26th or that she did remember the date of the injury to Appellant's finger.'

Defendant's understanding as to the proper scope of cross-examination in this respect is mistaken. If his theory were true, that would permit virtually every witness an easy escape from impeachment. All that a reluctant witness would have to do would be to disclaim an ability to remember, and then the opponent would have the virtually impossible chore of proving that the witness did in fact have a present memory of the fact in question. The law is not so accommodating to evasion. The true rule on this subject is that a witness can escape impeachment by prior inconsistent statement only if the witness makes a clean-cut admission with respect to the fact contained in the prior statement. This firmly established legal principle was well stated in the early case of Peck v. Ritchey, 66 Mo. 114, l.c. 119 (1877):

'A witness cannot avoid contradiction by equivocating, nor is the opposite party to be deprived of the right to show that the witness has made contradictory statements, either by his feigned or real forgetfulness. Nothing but an admission that he made the very statement alleged, will deprive the opposite party of the right to prove it.'

To the same effect: State v. Carter, 259 Mo. 349, 168 S.W. 679, 680 (1914); State v. Douglas, Mo.App., 529 S.W.2d 162, decided October 6, 1975; McCormick on Evidence, 2nd Edition (1971), p. 72.

IV.

Defendant next complains of the trial court's refusal to declare a mistrial because of an unresponsive statement by one of the State's witnesses to the effect that defendant on an occasion different from the crime charged 'jumped up and pulled a pistol on me.' This statement by the witness came as an unexpected surprise to the prosecuting attorney who requested the court to sustain the...