State v. Robinson

• Decision Date: 11 September 1972
• Docket Number: No. 57010,No. 2,57010,2
• Citation: 484 S.W.2d 186
• Parties: STATE of Missouri, Respondent, v. Larry ROBINSON, Appellant
• Court: Missouri Supreme Court

Page 186

484 S.W.2d 186

STATE of Missouri, Respondent, v. Larry ROBINSON, Appellant.

No. 57010.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1972.

John C. Danforth, Atty. Gen., Jefferson City, Harold L. Lowenstein, Asst. Atty. Gen., Kansas City, for respondent.

Cyril M. Hendricks, Fowlkes & Hendricks, Caruthersville, for appellant.

HOUSER, Commissioner.

Larry Robinson, tried by a jury, convicted of rape and sentenced to 15 years' imprisonment, has appealed. ¹

I.

The fact alone that the jury panel was completely devoid of female members does not vitiate the verdict on the ground that the jury was improperly impanelled. State v. Andrews, Mo.Sup., 371 S.W.2d 324, 327(6) (no women); State v. Selman, Mo.Sup., 433 S.W.2d 572, 577; State v. Ramsey,355 Mo. 720, 197 S.W.2d 949 (absence of negroes). In order to invalidate a jury verdict in this basis there must be a showing of unconstitutional discrimination arising out of systematic exclusion. The burden of demonstrating purposeful discrimination and consequent denial of a fair trial was upon appellant. State v. Warters, Mo.Sup., 457 S.W.2d 808(4). An objection or challenge to the array of petit jurors must be made before the jury is sworn, where the grounds of the objection are known. State v. Smith, Mo.Sup., 240 S.W.2d 671, 675. Appellant failed to meet the burden of proof. He made no objection to an all-male jury; no challenge to the array was made. There was no objection to the introduction of evidence and no other complaint on this ground until it was mentioned in the motion for new trial. The motion does not prove the matters of fact asserted therein. State v. Childers, Mo.Sup., 268 S.W.2d 858. No evidence was offered at the hearing of the motion for new trial to demonstrate systematic exclusion of females from the jury panel.

II.

The fact (if it be a fact) that one member of the jury panel had been convicted of a felony does not vitiate the verdict as a matter of law, in the absence of a showing that appellant's rights were prejudiced and that a substantial injustice resulted. State v. Hemphill, Mo.Sup., 460 S.W.2d 648. There is no showing that in overruling this contention the trial judge abused the discretion accorded trial judges in such matters. Eastman Kodak Stores, Inc. v. Summers, Mo.App., 377 S.W.2d 476. Section 494.050, RSMo 1969, V.A.M.S. provides that 'No exception to a juror on account of his * * * legal disability shall be allowed after the jury is sworn.' An exception to this statute is allowed if matters which might work a disqualification were actually explored in voir dire examination and false answers were given or deception otherwise practiced. Appellant seeks to come in under this exception, based upon statements by counsel in his appellate brief indicating that deception was practiced by the panelist in question. Such statements are not evidence of the fact and the fact has not been established otherwise.

III.

There was no error in admitting in evidence Exhibits G and K (photographs of the rear of the house where the alleged rape occurred, showing pry marks on the door, taken at 10:30 on the following morning). A sufficient foundation was laid for their admission. The officer who participated in taking the photographs testified that he recognized what was portrayed in the exhibits as close-ups of the rear door of the victim's house showing pry marks in the area of the outer door facing, apparently made by a sharp-pointed or tapered instrument, indicating that the door had been forcibly opened. This was sufficient supporting evidence to justify the introduction of the photographs as fairly and accurately portraying the objects shown in them, within the requirement of State v. Sanders, Mo.Sup., 365 S.W.2d 480(3), and as truly reflecting the conditions at the scene, within the doctrine of State v. Brown, Mo.Sup., 312 S.W.2d 818(3). See State v. McCollum, Mo.Sup.,377 S.W.2d 379(6), where the identification of photographs was similar and this appropriate language was used, 377 S.W.2d l.c. 383: 'The photograph tended to aid the jury in understanding the testimony with respect to the condition of the rear of the Toliver residence on the same day and shortly after the alleged burglary and stealing had occurred.'

IV.

The hearsay statements of Officer McKay do not destroy this verdict. City Marshal McKay testified following a report made to him by another officer, he went to the residence where a break-in and rapes of two females allegedly had occurred, for the purpose of making an investigation. Asked whether he had some conversation with the victims and what they told him, Officer McKay testified over objection, 'The victims advised me that their house had been broken into and they had been raped and assaulted.' The officer's testimony was hearsay but nonprejudicial. 'Hearsay evidence is objectionable 'because the person who makes the statement offered is not under oath and is not subject to cross-examination.' Bartlett v. Kansas City Pub. Serv. Co., 349 Mo. 13, 160 S.W.2d 740, l.c. 741.' Jackson v. State, Mo.Sup., 476 S.W.2d 598, 600(5). Both of the victims were present in court; they had been sworn as witnesses; had taken the stand; had confronted appellant; had testified fully with respect to the details of the crimes, were available to appellant for cross-examination and were thoroughly cross-examined.

V.

Appellant's fingerprints and shirt were properly admitted in evidence over the objection that they were not obtained as an incident to a lawful arrest. The burglary and rapes occurred between 12:30 and 1:00 o'clock on the morning of December 2, 1970. Appellant was arrested December 3 at 4:10 p.m., without a warrant. He was wearing the shirt in question at the time. His fingerprints were taken shortly after arrest. The arrest was lawful for the reason that it was based upon information possessed by the officers which constituted reasonably trustworthy information of facts and circumstances sufficient to warrant a man of reasonable caution to believe that offenses had been committed and reasonable ground for belief that the person arrested was guilty. That is the proper definition of probable cause for arrest. State v. Johnson, Mo.Sup., 463 S.W.2d 785, 787(1). The burglary and rapes occurred in the middle of the night, after the two victims had gone to bed and to sleep. Shortly thereafter the victims contracted a patrolman at 1:00 a.m. and gave him a general description of the two men. Appellant was described as 'a slendar built subject, approximately 5--8, probably sixteen or seventeen years of age, $ * * wearing a brown headband around his forehead or completely around his head.' This information was given to Officer McKay, who was called to the residence of the victims in the early morning hours. In the course of his investigation he secured a brief description of the three males involved. He testified that he commenced looking for appellant based upon physical description, past records, information given him by the sheriff's office, and informants. The victims gave McKay a description of the three assailants several times. In the course of the marshal's investigation he looked for persons involved in sex crimes with known sex records. He conversed with a deputy sheriff...