State v. Miller
| Decision Date | 13 May 1963 |
| Docket Number | No. 1,No. 49546,49546,1 |
| Citation | 368 S.W.2d 353 |
| Parties | STATE of Missouri, Respondent, v. Edwin Malcolm MILLER, Appellant |
| Court | Missouri Supreme Court |
John D. Schneider, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, William L. Hungate, Special Asst. Atty. Gen., Troy, for respondent.
HOUSER, Commissioner.
Under Secs. 560.070 and 556.150, V.A.M.S., Edwin Malcolm Miller was charged with and convicted of attempted burglary second degree, and three previous convictions of felony. The court fixed his punishment at five years' imprisonment in the penitentiary. Defendant has appealed from the sentence and judgment.
The information charged defendant with attempted burglary of Dairy Dell Ice Cream Store in St. Louis by wedging a chisel and punch in the door.
The evidence most favorable to the state shows the following: Patrolman George Keck, driving his patrol car on north Broadway at 3 o'clock in the morning, was checking buildings. He drove into the parking lot adjacent to the ice cream store, and as his front wheels were a little over the sidewalk he noticed a man (the defendant) squatted down, or crouched, facing the front door of the store, under the front canopy. The patrolman first saw his back. When the car entered the lot the man turned around and faced the patrolman and started raising up to a standing position, right by the front door of the store . . . 2 or 3 feet from the door. Keck stopped the patrol car, opened the door, got out, and asked the man what he was doing there. The man started pulling up his trousers, saying 'This insulated underwear causes your trousers to fall all the time,' and that he was waiting for a bus. (There was no bus stop in front of the store; it was 'down the street further.') The man was unable to produce any identification. He gave the officer one name, then a different name and finally admitted his true name. Asked about the truck parked in the lot adjacent to the store, the man first said a friend of his drove him to the place, then admitted he was the driver of the truck. The officer arrested the man and radioed for his supervisor, Sergeant Beckman, who arrived in a few minutes. While Beckman watched defendant, Keck checked the building to see if it had been entered or any attempt had been made to do so. There was no evidence of any entry or attempt to enter at the back or sides of the building. At the front door he found a metal chisel and a punch wedged under the framework of the front door, between the sill and the bottom of the door--'stuffed under the door' 3/8 or 1/2 inch--far enought to cause the tools 'to stand straight out, and the end[s] not laying on the ground.' The door, of modern design, was all glass, with a thick aluminum frame. There was a lock located at the bottom of the door. A bolt goes down into the sill. To open the door without a key it would be necessary to chisel the lock completely off. The man was searched and the officers found in his pockets a screw driver with a 6-inch blade, a 2-blade knife, a shoehorn and a 6-inch spring steel ruler. In the cab of the truck there was a box, lying open, containing assorted tools, and in the back part of the truck a crowbar was found. The owner of the store, Robert Hutter, and a photographer, were called to the scene. At the trial defendant took the stand, admitted seven pleas of guilty, including two charges of burglary and larceny, and one jury conviction of first degree robbery by means of a dangerous and deadly weapon. With a touch of professional pride defendant testified 'I am a burglar, but I'm not insane'; that if he was going to break in a place he would 'go with a crowbar, any place except the front door'; that he was not intending to burglarize this store.
Defendant's first point is error in denying defendant's request to require state's witness Keck 'to produce his handwritten notes from which he testified to later a prior inconsistent statement.' The background: The state's case was based on the theory that the tools were wedged in the door, which would show that someone (circumstantially this defendant) had committed an overt act looking toward the commission of the offense, and had not simply collected tools at the site in preparation for the commission of an overt act in furtherance of a design to break and enter. State's Exhibit 1, a photograph taken at the scene of the arrest, did not show the tools wedged in the door. It showed them lying on the walk directly in front of the door, but not touching the door--not wedged in between the doorsill and the bottom of the door. If that was the situation and position of the tools at the time Keck first saw them, the state could not make a case on the theory it adopted. When Hutter appeared at the scene he looked at the front door from the outside, then went into the building through another entrance, unlocked the front door from the inside, and swung it open. The door opened outward and it swung freely. If the tools had been wedged in the door at the time the door was opened, they necessarily would have been dislodged and displaced from their wedged position, and they would have been cast out and away from contract with the door. Exhibit 1 showing clearly the tools not 'wedged' as aforesaid, it became important to know whether the photographs were taken before or after the door was unlocked and opened.
At the trial Keck testified that the chisel and punch were wedged under the framework of the door when he first examined the door; that Exhibit 1 truly represented the door as it appeared when he examined it, except it did not show the tools under the door; that the tools were 'a little away from the door' when the picture was taken; that he removed the tools before the photographer took the picture; that the picture was taken after the door had been opened; that 'they' disturbed the tools at the base of the door before the photograph was taken. On cross-examination Keck admitted that seven days prior to trial he gave a statement to defendant's counsel, in the presence of the assistant circuit attorney, reduced to writing but not signed, in which Keck stated that 'The door had not been opened when the photographer took the pictures.'
Keck's admission on cross-examination; Exhibit 1, and certain testimony by state's witness Hutter provided defendant with his 'primary defense.' Hutter testified that after being called to the premises at 3:30 a. m., and before entering the store (and therefore before he opened the door from the inside) he saw the chisel and punch lying an eighth of an inch from the door, 'right up to the bottom of the door ready to be wedged under there,' but not wedged under the door.
When counsel for defendant called on patrolman Keck to explain why he had made the pre-trial statement that the door had not been opened at the time the photograph was taken, Keck's explanation was that he was 'just mistaken'; that at the time the pre-trial statement was made he didn't remember 'without refreshing [his] memory a little bit and looking at [his] notes.' Keck said he had made some notes, kept at home in handwritten form. (Keck had told counsel for defendant, at the time he made the pre-trial statement, that he would refer to his report; that he did not have an independent recollection of all the facts.) At the trial Keck testified that he remembered it better than he did the day he gave the pre-trial statement, because, as he put it, 'I checked my notes at home that I keep for my own.' He did not have the notes with him at the trial. He indicated that he was mistaken at the time he made the pre-trial statement because he had not had a chance to read his report. Counsel for defendant moved that this report be produced for cross-examination. Counsel stated to the court that if, as Keck stated, Keck did not have an independent recollection of all the facts and had to refer to the report, defendant's counsel had a right to examine the report. No request was made for the issuance of a subpoena duces tecum. The court refused the request.
Defendant claims the right to the production and examination of the handwritten notes on the basis of Traber v. Hicks, 131 Mo. 180, 32 S.W. 1145; State v. Patton, 255 Mo. 245, 164 S.W. 223; State v Nardini, Mo.App., 186 S.W. 557; and State v. Tracy, 294 Mo. 372, 243 S.W. 173. Three of these cases, along with others of the same tenor, were recently distinguished in State v. Crayton, Mo.Sup., 354 S.W.2d 834, in which the view was expressed that defense counsel should be permitted to examine a paper or document from which the witness has refreshed his recollection while he is on the stand testifying, but this is not required where the paper or document is not produced and used at the trial (and that this is true notwithstanding the paper may have been examined by the witness prior to the trial). That principle applies here. Keck did not use his private notes while on the stand testifying. He had used them sometime during the week prior to the trial to refresh his memory, and he did not have them in his possession at the trial; and he testified at the trial from his own personal recollection, refreshed as aforesaid, but not then aided and assisted by the notes in hand.
At the time Keck gave his pretrial statement he told defendant's counsel that he did not have an independent recollection of all the facts, and indicated that he intended to refer to his private notes. With knowledge, prior to trial, of the existence of the private notes, and that t...
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