State v. Miller

• Decision Date: 31 May 1983
• Docket Number: No. 64469,64469
• Citation: 650 S.W.2d 619
• Parties: STATE of Missouri, Respondent, v. Delbert Clarence MILLER, Jr., Appellant.
• Court: Missouri Supreme Court

Page 619

650 S.W.2d 619

STATE of Missouri, Respondent, v.Delbert Clarence MILLER, Jr., Appellant.

No. 64469.

Supreme Court of Missouri En Banc.

May 31, 1983.

David L. Steelman, Salem, for appellant.

John Ashcroft, Atty. Gen., Carl S. Yendes, Asst. Atty. Gen., Kansas City, for respondent.

DONNELLY, Judge.

This case was transferred to this Court on certification by a dissenting judge from an opinion by the Court of Appeals, Western District.Mo. Const., art. V, § 10.The defendant, Delbert Miller, had been convicted upon jury trial of stealing by deceit, §§ 560.156and560.161, RSMo 1978, and sentenced to seven years' imprisonment.The Court of Appeals reversed the conviction and remanded for a new trial.In his dissent, Judge Donald L. Manford certified that he deemed such opinion to be contrary to State v. Degraffenreid, 477 S.W.2d 57(Mo. banc 1972).

Defendant Miller, together with Harold Stufflebean and Golder Copas, an insect exterminator, represented to Lillian Bruce that her house was infested with powder post beetles and required treatment they could supply.The house was not so infested.Rotted wood brought by the three was shown the elderly Mrs. Bruce as purported evidence of such infestation.After Mrs. Bruce agreed to pay $620.00, appellant ran a fogging machine containing diesel fuel for ten to fifteen minutes in her basement.Such treatment is ineffectual for powder post beetles.Copas assisted Mrs. Bruce in filling out a check to Harold D. Stufflebean, which Stufflebean cashed in person later that day at Mrs. Bruce's bank.

All three men were charged with the offense.Copas pled guilty and was awaiting sentencing at the time of this trial.Stufflebean was tried prior to defendant Miller, and Miller testified in his behalf.The effect of Miller's testimony in the Stufflebean trial was that he and Copas were the culprits in the scheme, but Stufflebean was not.

Among other evidence presented by the state in this case, detailed testimony was elicited from Golder Copas concerning the scheme and ensuing events; Lillian Bruce's testimony at the preliminary hearing as to her recollection of the events was read to the jury because of her illness at the time of trial; a licensed exterminator who inspected Mrs. Bruce's home after the appellant's visit at the request of the deputy sheriff testified that he found no evidence of infestation of or damage to the structure from powder post beetles; and two witnesses testified that in a conversation while waiting to testify at the trial of co-defendant Stufflebean, Miller admitted that he and not Stufflebean was guilty of the offense.In addition, the prosecutor quoted extensively from portions of the Stufflebean transcript in which Miller stated that he and Copas, and not Stufflebean, were the culprits in the fraudulent scheme.Defendant did not testify and rested without presenting any evidence.

In our view, it was error to read to the jury portions of the transcript of the Stufflebean trial in which the judge and the prosecutor repeatedly warned Miller of the danger that his testimony might be self-incriminating and of his right to invoke the Fifth Amendment and to refuse to testify.The question on appeal is whether the error was harmless.

In State v. Degraffenreid, 477 S.W.2d 57, 64(Mo. banc 1972)this Court stated that "error in the admission of evidence should not be declared harmless unless it is so without question."The more understandable and prevailing standard is that error can be declared harmless only if we are "able to declare a belief that it was harmless beyond a reasonable doubt."Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

The record in this case is replete with evidence of Miller's guilt.In addition to Miller's own admission of guilt in the Stufflebean transcript, the state presented the detailed testimony of co-defendant Golder Copas, testimony of the victim herself, a licensed exterminator's report that the Bruce home contained no damage by or evidence of powder post beetles, and testimony of witnesses who heard Miller admit to the crime.

In our view, the case against Miller was so overwhelming that we conclude that the error in admission of evidence, supra, was harmless beyond a reasonable doubt."It is so overwhelming that unless we say that no [error] can constitute harmless error, we must leave this * * * conviction undisturbed."Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284(1969).

The judgment is affirmed.

HIGGINS, GUNN, BILLINGS and BLACKMAR, JJ., concur.

WELLIVER, J., concurs in separate opinion filed.

RENDLEN, C.J., concurs in result.

WELLIVER, Judge, concurring.

I concur in the principal opinion.I write separately to emphasize my belief that the time has come for this Court to clarify what standard it intends to apply in determining whether error in a criminal trial is harmless.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967), the Supreme Court concluded that there may be instances in which a federal constitutional error might be considered harmless.It held, however, that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."Id. at 24, 87 S.Ct. at 828.Under that test, the "beneficiary of a constitutional error," the government, must "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."Id.The Court simply applied the level of certainty necessary for conviction of a criminal defendant, seeIn re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 1070-72, 25 L.Ed.2d 368(1970), to the determination whether a federal constitutional error is harmless.The reasonable doubt standard, the Court said, is a "workable" one because it is "familiar ... to all courts."Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

Because of the high nature of federal constitutional rights, it would seem that a federal constitutional error would more grievously infringe the rights of the accused than would an error of state criminal law or procedure.It follows that the burden of demonstrating that a federal constitutional error is harmless should be the most difficult harmless error burden the government should be made to bear.Yet this Court has embraced an even more rigorous harmless error standard applicable to those cases, such as this one, in which evidence was admitted when it should have been excluded.That test, we have said, is that "error in the admission of evidence should not be declared harmless unless it is so without question."State v. Degraffenreid, 477 S.W.2d 57, 64(Mo. banc 1972).This has been characterized as "for all practical purposes the same as" the reasonable doubt standard, State v. Brown, 549 S.W.2d 336, 345(Mo. banc 1977), and there have also been hints that it is lower than the reasonable doubt standard, seeState v. Cook, 628 S.W.2d 657, 662(Mo. banc 1982)(Seiler, J., concurring);id. at 665(Donnelly, C.J., dissenting).Neither, of course, is accurate.It is clear that the Degraffenreid standard is higher, for the requirement that any error be harmless without question leaves no room for reasonable doubt.

It is perhaps because the Degraffenreid standard places an onerous burden on the state that this Court has eschewed application of it in favor of the reasonable doubt standard.For example, we have applied the reasonable doubt standard, in accordance with Chapman, in cases allegedly involving federal constitutional error.E.g., State v. Bonuchi, 636 S.W.2d 338, 341(Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446(1983);State v. Johnson, 618 S.W.2d 191, 195(Mo.1981);State v. Baskerville, 616 S.W.2d 839, 844(Mo.1981);State v. Kent, 515 S.W.2d 457, 460(Mo. banc 1974);State v. Adams, 497 S.W.2d 147, 152(Mo.1973);State v. Crow, 486 S.W.2d 248, 252(Mo.1972);State v. Granberry, 484 S.W.2d 295, 300(Mo. banc 1972).We also have applied the reasonable doubt standard in case...