State v. Ray, 48583
| Decision Date | 29 March 1983 |
| Docket Number | No. 48583,48583 |
| Citation | 647 S.W.2d 522 |
| Parties | STATE of Missouri, Respondent, v. James E. RAY, Appellant. |
| Court | Missouri Supreme Court |
David M. Strauss, Public Defender, Columbia, for appellant.
John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals his conviction for first degree robbery. The issues raised concern the voluntariness of his confession and the competency of the jail warden to testify regarding medical treatment administered to defendant. We affirm.
Defendant's conviction arose out of events occurring in the City of St. Louis in October 1959. The conviction was affirmed in State v. Ray, 354 S.W.2d 840 (Mo.1962). This second appeal is the result of defendant's not being represented by counsel in the first appellate proceeding. Bosler v. Swenson, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1966).
A detailed statement of facts is found in State v. Ray, id. It is sufficient to state here that the evidence is overwhelming of defendant's guilt of robbing a Kroger store in St. Louis on October 10, 1959. No less than four eyewitnesses observed defendant perpetrate the crime, and he was pursued from the store by a customer. Shortly after the robbery, police confronted him at his home and were forced to subdue him when he resisted arrest. A gun used to commit the robbery was found in defendant's bedroom with his malgained lucre. And to top it off, defendant signed a written confession acknowledging that he had committed the crime, albeit on appeal he urges the confession was maculated by unlawful coercion.
Defendant's first point on this appeal attacks the confession, which in this instance merely follows mighty evidence of his guilt through eyewitnesses and circumstances surrounding his arrest.
Defendant first contends that the trial court erred in failing to determine the issue of voluntariness of confession in a separate proceeding outside jury hearing. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963), and State v. Mitchell, 611 S.W.2d 211, 214 (Mo. banc 1981), serve as authority for the separate hearing defendant urges. But the transcript absolutely refutes defendant's position that no separate hearing was given. After complete hearing outside the jury, the trial court ruled adversely to defendant's contention of involuntariness of the confession.
Defendant next argues that the confession was involuntary as having been beaten from him. The police taking the statement testified otherwise. The trial court chose to believe the police, which it may. It is a fundamental precept that when conflicting evidence exists as to the voluntariness of a confession, the admissibility of the confession is within the trial court's sound discretion. State v. Jenson, 621 S.W.2d 263, 264 (Mo.1981); State v. Royal, 610 S.W.2d 946, 949 (Mo. banc 1981).
Defendant also asserts that the trial court erred in failing to instruct the jury on voluntariness of the confession. He concedes that the allegation of error has not been preserved, as no request was made for such an instruction. No plain error or manifest injustice occurred here. The voluntariness of a confession is a collateral matter, not requiring instruction unless specifically requested. State v. Pughe, 403 S.W.2d 635, 641 (Mo.1966) and State v. Blanchard, 527 S.W.2d 37, 38-9 (Mo.App.1975), speak directly to this point.
Defendant's arguments relating to the voluntariness of his confession are clearly without merit.
A portion of defendant's defense was that he had been mistreated by police and had required medical attention. For proof of medical treatment, defendant called on the warden of the city jail to identify and read from the medical card pertaining to him. And defendant, through the warden, had the medical card introduced and received into evidence. On cross-examination, the warden, in reading from the medical card, noted that defendant's treatment was in the "venereal clinic" for venereal disease. After the warden had testified, defendant's counsel's subsequent objection and request for the jury to disregard the testimony were overruled.
Defendant contends that the warden's testimony on cross-examination was irrelevant and erroneously prejudicial and that he was not qualified to testify on the subject. It matters not that defendant's objection came too late to have any effect, as the answer about which he complains was already...
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