State v. Pogue, 10550
| Decision Date | 08 March 1978 |
| Docket Number | No. 10550,10550 |
| Citation | 563 S.W.2d 544 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. David Lewis POGUE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
David G. Neal, Eminence, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
A jury found defendant David Lewis "Louie" Pogue guilty of manslaughter arising out of the shotgun slaying of his brother-in-law Scott Taylor. Defendant was sentenced to five years' imprisonment and he appeals.
Defendant's first "point relied on" is that his constitutional rights were violated when the prosecuting attorney, during the presentation of the state's evidence, interrogated sheriff Jim Bolin concerning his conversation with defendant and the latter's silence while under arrest at the scene of the shooting shortly after it happened. With commendable candor defendant's brief states that "defense counsel did not properly object and did not properly preserve the matter for appellate review." Defendant urges that he is entitled to relief under the "plain error rule," Rule 27.20(c). 1 After reviewing the whole record in this case this court has determined that manifest injustice has resulted from the alleged error. The point is well taken and requires reversal.
At approximately 7:30 p. m. on June 27, 1976, Jimalee Pogue, wife of the defendant, telephoned sheriff Bolin and told him, Bolin, accompanied by police officer Eugene Nichols and deputy sheriff George Stearns, drove immediately to the scene. Upon their arrival approximately five minutes later, the three officers found the victim, Scott Taylor, lying in a ditch about 200 feet from defendant's trailer home. The officers stopped to aid Taylor, who was still alive but mortally wounded. An ambulance arrived "in a few minutes." Before the ambulance arrived Taylor told the officers, "Louie shot me five times." Taylor died in the ambulance before it left the scene.
As a witness for the state, sheriff Bolin testified, on direct examination, that after he had checked the victim's condition, he saw the defendant and his wife "standing up toward the trailer" so Bolin and deputy George Stearns went "up there." The following then occurred:
Q. (By the prosecutor) And what happened up there that you know about?
A. George got out, he got out before I did and he said something to Louie. I don't know, I can't say what it was, what he said to him. But then whenever I got out, I walked up and told Louie that he was under arrest.
Q. And what did you do then?
A. George handcuffed him and Louie asked me, he said, "Can I get some more clothes?" And I said, "No, but your wife can get them for you."
Q. And what happened next?
A. I read him his rights and George or me one asked him what happened and he told me he'd rather not talk about it.
Q. Did he explain that at all?
A. Sir?
Q. Did he explain why he didn't want to talk about it?
A. No, he didn't say.
Q. Did he make any explanation of the shooting at that time?
Q. (By the prosecutor) Did you question Mr. Pogue after giving him the rights other than what you've
A. No. No, I didn't question him anymore.
Q. When you received the call that Scott Taylor had died, did Mr. Pogue make any response?
A. He didn't say anything.
On redirect examination of sheriff Bolin by the prosecutor, the following occurred:
Q. (By the prosecutor) Did he say anything else other than "I want to talk to a lawyer? "
A. Only he said he hoped he didn't die.
State v. Stuart, 456 S.W.2d 19, 22(3, 4) (Mo. banc 1970). See also State v. Benfield, 522 S.W.2d 830, 834(9) (Mo.App.1975); State v. Halk, 524 S.W.2d 44, 48(7) (Mo.App.1975).
In Stuart, defendant failed to make a proper objection at the time testimony was offered concerning his silence while under arrest. The supreme court granted relief under the plain error rule, Rule 27.20(c), and reversed the conviction.
In Benfield, decided by this district of the court of appeals, there was an objection to evidence that the defendant, while under arrest and after being apprised of his right to remain silent, made no statement. The objection in Benfield, as in the case at bar, may not have been timely but this court, in dictum authored by this writer, said, "Had there been no objection, the result would be the same."
In Halk, the court recognized the holding in Stuart that a failure on the part of a person under arrest to volunteer an exculpatory statement is inadmissible. Halk was to a 2-to-1 decision. The majority held, under the facts in Halk, that there was no manifest injustice requiring invocation of the plain error rule. The majority pointed out that the testimony concerning the arrested person's failure "was somewhat unresponsive" and that "there was no deliberate attempt by the prosecutor to elicit a reply that the defendant refused to make a statement." The court also pointed out that there was no objection made to the testimony. The dissenting judge felt that Halk was entitled to a new trial.
Missouri procedure requires, in general, that constitutional questions be raised in the trial court at the earliest opportunity consistent with orderlyprocedure they may not be raised for the first time in the appellate court. Objections based upon constitutional grounds must be clearly and specifically stated and these objections must be kept alive and preserved throughout the case. State v. Price, 422 S.W.2d 286, 289(3) (Mo.1967); State v. Evans, 439 S.W.2d 170, 173(4) (Mo.1969). 2
Contrary to the dictum in Benfield, violation by the state of the rule of evidence announced in Stuart does not automatically require reversal where there has been no timely objection. State v. Howard, 540 S.W.2d 86, 87(1) (Mo. banc 1976). The court, in Howard, pointed out that precedents are of little value in determining when relief should be granted under the plain error rule. 3
In the case at bar the state and the defendant, through their respective counsel, entered into a stipulation which the trial judge read to the jury immediately prior to the presentation of the evidence for the state. The court told the jury that the parties had stipulated to the effect that
The evidence for the state was circumstantial. It showed that bad blood existed between the defendant and the victim. The state produced no eyewitness to the shooting, which occurred on land where the trailer home of the defendant and the trailer home of the victim were situated. It was the state's theory that the defendant shot Taylor because Taylor was "digging up water pipes" near a well house which served both trailer homes. The victim's purpose was to deprive the defendant of his water supply. The state's evidence tended to show that the shooting took place a considerable distance from defendant's trailer.
Defendant relied upon self-defense and the jury was instructed thereon. Defendant's evidence showed that as he and his wife Jimalee were approaching their trailer a verbal exchange took place between defendant and Taylor. Jimalee reached the trailer and went inside. Jimalee said:
The defendant said that as he was entering his home he say Taylor The defendant "hollered" at Scott to hold it and Scott "kept coming." The shooting took place, according to the defendant, near his front steps.
The state's evidence, ably presented by the prosecutor, tended to show that the shooting took place near the well house. The nature of the victim's wounds, the location of the pick and shovel mentioned in the stipulation, and the location of a trail of blood, tended to support the state's theory and to be at war with the defendant's version.
The only eyewitnesses were the defendant and his wife, and her knowledge of the incident was somewhat limited. Manifestly any evidence which had a strong tendency to show that the defendant's version was a fabrication, one not voiced at the scene, might well have influenced the verdict. 4
Prior to the trial the defendant's counsel, pursuant to Rule 25.32(A)(2), filed a...
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...State v. Stuart, 456 S.W.2d 19, 22[3, 4] (Mo. banc 1970); State v. Nolan, 595 S.W.2d 54, 56[1-6] (Mo.App.1980); State v. Pogue, 563 S.W.2d 544, 546 (Mo.App.1978); State v. Benfield, 522 S.W.2d 830, 834-35 (Mo.App.1975). This rule does not apply if the accused chooses to waive his Fifth Amen......
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