State v. McClain

• Decision Date: 13 June 1966
• Docket Number: No. 2,No. 51756,51756,2
• Citation: 404 S.W.2d 186
• Parties: STATE of Missouri, Respondent, v. Ernest McCLAIN, Appellant
• Court: Missouri Supreme Court

Page 186

404 S.W.2d 186

STATE of Missouri, Respondent, v. Ernest McCLAIN, Appellant.

No. 51756.

Supreme Court of Missouri, Division No. 2.

June 13, 1966.

As Modified on Court's Own Motion and Motions to Transfer

and for Rehearing

Denied July 11, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Joseph S. Boland, Sp. Asst. Atty. Gen., Clayton, for respondent.

Harry J. Stadin, J. Raymond Dyer, St. Louis, for appellant.

EAGER, Presiding Judge.

Defendant was found guilty by a jury of first degree robbery and, upon a finding of prior felony convictions by the court, he was sentenced to a term of ten years' imprisonment. He was ably represented at the trial, and here, by two appointed attorneys. A lengthy and detailed motion for a new trial was overruled by the lapse of 90 days, in accordance with Criminal Rule 27.20, and the defendant has appealed as a poor person, with transcript furnished gratuitously. Counsel assign as error the denial of defendant's motions for acquittal, but not on the insufficiency of the evidence. We shall not, therefore, state the evidence in any considerable detail.

The evidence at the trial developed the following facts. Gilbert Powers, age 65, conducted a small confectionery store at 1300 South 9th in the City of St. Louis. The business was owned by Adie Goskie, who divided the profits with Mr. Powers. Mrs. Powers ran the store during certain hours. On March 8, 1965, Powers was in charge of the store when at 'approximately twelve o'clock' a Negro man came in, went to the 'dairy case' and took out a 12-ounce bottle of Pepsi-Cola, brought it over and set it on the counter near the cash register; at that point he dropped some change and stooped down; Powers walked a few steps, apparently toward the man, then turned 'to walk back'; as he turned, the man hit him on the head with the unopened bottle, shattering the glass into many pieces. Powers further testified: that the man was standing practically against the counter and within reach of the cash register; that he saw the man reach over the counter, go into the cash register and take the bills which were there, although he did not actually see him 'press the key'; when the man left, the cash register was open whereas it had previously been closed, and, upon checking it later, the money was found to be about $18 short. Powers' head was cut and he testified that the blow 'kind of shocked me' (obviously an understatement). The police were called, Powers went to the hospital for only a brief emergency treatment and returned. On March 11, 1965, defendant was brought to the store by two detectives who had arrested him upon suspicion of this robbery. When they came in, Powers spoke first and said, 'Well, I see you have got my boy.' Powers positively identified the defendant as the robber, then, at the preliminary hearing, and at the trial. He testified that he had seen him in the store perhaps eight to twelve times previously during a period of two or three months, and that he had seen him twice previously on that same morning; once he had come in and bought a 'coke,' but had gone out; the other time he had walked by and looked in. On both occasions there was a customer in the store. Powers testified that the topcoat which defendant was wearing when arrested was 'similar' to the one the robber was wearing, but that he thought the hat the robber was wearing was 'darker' than the one defendant wore when arrested. Powers described the robber to the police as thin, about 35 years of age, and about five feet five or six inches tall; he also described the clothing the man was wearing. The defendant was arrested on suspicion of the robbery, largely or entirely from the descriptions given. A Mrs. Cochran who lived across the street from the store saw a man running about 8 feet from the window where she was sitting, immediately after the robbery; she gave the police a general description, including a description of the clothing he was wearing, but she did not see his face.

Defendant denied participation in the robbery when arrested, when taken to Mr. Powers, and at the trial. When confronted with Mr. Powers, he called the latter by name but immediately stated that he had an 'alibi,' although he had not yet been told what time of the day the robbery had occurred. In the State's case, Robert Lenzini, United States Probation Officer, testified that on March 5, 1965, he had left word at defendant's home for him to report on March 8, 1965; that defendant had come in at 9:50 a.m., but Lenzini was not there and he left; that defendant came back some time after 1:00 p.m. and talked with the witness; that defendant was then under his jurisdiction. Defendant's grandmother and sister testified: that on March 8, 1965, defendant left the home in the morning to go to the Parole Office; that he came back about 10:15 and stayed there until 12:30; that the grandmother then gave him forty-five cents for his bus fare and he again left for the Parole Office. The defendant testified in his own behalf. He stated that he arrived at the Parole Office at 9:30 or 9:35 a.m. on March 8, found that Mr. Lenzini was not there and he went back home; that he again left home about 12:30 for the Parole Office, after his grandmother had given him the forty-five cents for bus fare. He further testified: that he knew Mr. Powers when he had a store on South Broadway and was a customer, that he had been in Powers' present store twice, that he was not at the store on March 8, 1965, took no money, hit no one with a bottle, was not even in South St. Louis on that day, and that he was five feet ten inches tall. On cross-examination he admitted three convictions in Illinois for the possession of narcotics, one in Missouri for the possession, stealing and transportation of narcotics, one stealing and one forgery conviction in Illinois, and one stealing conviction in Missouri. When the defendant put on the coat and hat that he was wearing when arrested and was thus presented to Mrs. Cochran, she said: 'I couldn't say. But it looks the same except the hat. Now, the hat seemed to be darker.'

The points made here by defendant's counsel are, in substance: (1) that defendant was deprived of his right to due process and to a fair trial because he was deprived of counsel at his preliminary hearing, that his motions for acquittal and for a new trial should have been sustained for that reason, and he claims prejudice thereby; (2) that the trial court erred in considering that the preliminary hearing was merely an inquiry to determine probable cause, since it really went 'to the question of whether or not defendant was the offender,' and constituted a critical stage of the proceedings; also, that defendant was prejudiced by the erroneous testimony of an officer at the preliminary hearing as to the time, place and date of defendant's arrest; (3) that the court erred in allowing the State's attorney to cross-examine defendant concerning the two prior felony convictions alleged in the information, he having already admitted them outside the presence of the jury, and also concerning five other convictions, not included; (4) that the court erred in admitting a 12-ounce bottle of Pepsi-Cola in evidence, it not being the bottle in question, not the 'best evidence' and not relevant to any disputed issue.

Defendant's Points 1 and 2 may be combined in our discussion. On the first point, namely the lack of counsel at preliminary, counsel cite White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and State v. Owens, Mo., 391 S.W.2d 248; then, as a somewhat novel approach, they attach a copy of the July 6, 1965, 'Defender Newsletter' of the National Legal Aid and Defender Association, as their brief on the point. That publication cites and discusses various and sundry cases, State and Federal, pro and con, on the right to counsel at preliminary hearing. We do not propose to review all those cases here; we shall mention three. In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, the court held that a defendant was entitled to the appointment (or selection) of counsel a sufficient time in advance of trial to permit effective preparation and effective aid at the trial. In the present case trial counsel was appointed on April 7, 1965, and the trial commenced on June 2, 1965. The issues were very simple and we find no impingement upon that requirement. We mention also the cases of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. We have previously discussed those cases at length and have held specifically that the mere lack of counsel at a preliminary hearing held under the Missouri practice is not a deprivation of due process or of any other constitutionally protected right. State v. Engberg, Mo., 391 S.W.2d 868; State v. Phelps, Mo., 384 S.W.2d 616; State v. Gagallarritti, Mo., 377 S.W.2d 298; State v. Worley, Mo., 383 S.W.2d 529; State v. Turner, Mo., 353 S.W.2d 602; State v. Small, Mo., 386 S.W.2d 379; State v. McMillian, Mo., 383 S.W.2d 721. Counsel seem to rely upon a statement made in the opinion of State v. Owens, Mo., 391 S.W.2d 248, 253, to the effect that a preliminary hearing 'may be 'a critical stage' and what happens there may in some situations and some circumstances, not involved here, infringe fundamental rights, * * *.' But that statement was immediately followed by these further statements: '* * * but a preliminary hearing in Missouri 'is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged in the circuit court or discharged if probable cause is not...