State v. Scott

• Decision Date: 14 March 1973
• Docket Number: No. 55063,55063
• Citation: 491 S.W.2d 514
• Parties: STATE of Missouri, Respondent, v. John Allen SCOTT, Appellant.
• Court: Missouri Supreme Court

Page 514

491 S.W.2d 514

STATE of Missouri, Respondent, v. John Allen SCOTT, Appellant.

No. 55063.

Supreme Court of Missouri, En Banc.

March 14, 1973.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Theodore A. Jackson, Jackson & Douglas, Attys. at Law, East Moline, Ill., for appellant.

HENLEY, Judge.

John Allen Scott (hereinafter defendant) appeals from a judgment sentencing him to death upon his conviction of first degree murder. Sections 559.010 and 559.030. ¹ This court has jurisdiction to dispose of the appeal because the case was pending here properly January 1, 1972, and before the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (June, 1972).

Defendant does not question the sufficiency of the evidence to sustain his conviction. The jury reasonably could find from the evidence that on July 7, 1966, a few minutes before 10 o'clock p.m., defendant and his accomplice, Duane Holmes, both armed with pistols, entered the Rathgeber Pharmacy at 4221 Bayless Avenue in St. Louis county, and, using the weapons, robbed Ernest Rathgeber, owner of the pharmacy, and Larry Bardelmeier, his pharmacist, of money belonging to Rathgeber, in the presence of four witnesses, one of whom, Harry Oebels, an off-duty police officer, was killed by defendant in an exchange of gunfire as defendant and Holmes ran out the front door.

The first point briefed by defendant is that he was denied a speedy trial and was prejudiced thereby in that he was deprived of the opportunity to assist in the preparation of his defense of alibi. The only authority cited by defendant in support of this point (Henry v. Ciccone, Director, 440 F.2d 1052 (8th Cir., 1971)) is not applicable to the facts in this case.

The indictment charging defendant with this offense was filed June 19, 1967. Defendant was found in the Illinois state penitentiary at Stateville and extradition to this state was sought and thereafter granted in February, 1968. Sometime thereafter he was returned to Missouri. On May 17, 1968, present counsel for defendant entered his appearance, defendant was arraigned and entered a plea of not guilty, and the case was set for trial for June 24, 1968. The case was not tried on that day. On January 20 and February 4 and 13, 1969, defendant filed seven pre-trial motions, some of which were in part sustained and others overruled on April 17 and 24, 1969, and on the 24th was set for trial for May 5, 1969. Trial began that day. The record shows that on April 24, when several of these motions were ruled, the court found that the case had theretofore been continued at the request of defendant. In these circumstances the sixth amendment to the Constitution of the United States; Article I, § 18(a), Constitution of Missouri, V.A.M.S.; and §§ 545.890 and 545.920, guaranteeing a person under indictment a speedy trial, do not require defendant's discharge. His '* * * failure to take affirmative action seeking a speedy trial constitutes a waiver of that right.' State v. Harper, 473 S.W.2d 419, 424(3) (Mo. banc 1971).

Defendant asserts, however, that on January 15, 1969, the took affirmative action seeking a trial by filing a motion to dismiss the indictment on the ground that the state had failed diligently to prosecute the action, but that the motion was summarily overruled. The original transcript on appeal, approved by him, and a supplemental transcript requested by him and containing his pre-trial motions, also approved by him, do not support his assertion. ² Assuming for the purpose of discussion that the motion was filed and overruled as asserted by him, there is no showing and he does not contend that prior to his motion to dismiss he requested a trial 'and that such request was made without success for a reasonable length of time before his right to release has been asserted.' State v. Harper, supra, at 424. Nor has defendant shown or attempted to show that the failure to try him before May 5, 1969, has so prejudiced him as to call for his discharge. State v. Endres, 482 S.W.2d 480, 485(4) (Mo.1972). The point is without merit.

Defendant contends in the second point briefed that '(t)he court erred in failing to grant certain of (his) pre-trial motions and in the entry of (a) nunc pro tunc order (on) April 24, 1969.' He makes reference in this point to four of nine pre-trial motions filed, being: (1) motion for production of police reports; (2) motion to suppress in-court identification of defendant; (3) motion to produce documents purportedly bearing his handwriting allegedly examined by a handwriting expert and which the state intends to introduce in evidence; and (4) motion to produce all information in the possession of the state which tends to exonerate or which would lead to the discovery of evidence which would tend to exonerate defendant. His contention that the court erred in entering a nunc pro tunc order on April 24, 1969, overruling motions does not have reference to the motions he now discuss in his brief. The first two above-mentioned motions were overruled on April 24, but not as part of the so-called nunc pro tunc order; the last two were filed thereafter and any alleged error as to the court's action on the other motions is not presented for review.

Defendant asserts that to deny him the police reports denied him (1) proof of defective and improper identification procedures at a lineup; (2) information in the hands of the state which would prove him to be not guilty; and (3) the use of prior inconsistent statements for purposes of impeachment.

Although counsel for defendant was present at the lineup and participated in the trial of this case, he does not now state or attempt to show, nor do we find anything in the record which would tend to indicate, that the lineup identification procedure was possibly improper. The record does not support the assertion that the state had and withheld information that would exonerate defendant, or the implication that prior inconsistent statements which could be used by him for impeachment purposes were made by any witness. Defendant has failed to show any abuse of discretion by the trial court in overruling the motion for production of police reports. State v. Yates, 442 S.W.2d 21, 26--27 (Mo.1969). See also: State v. Coleman, 441 S.W.2d 46, 50 (Mo.1969); State v. Cannon, 465 S.W.2d 584 (Mo. banc 1971).

Defendant's motion to suppress identification of him in court by witnesses present at the time of the shooting, and other witnesses, is based on the grounds (1) that before the trial the police improperly influenced the witnesses' identification of him by showing them only one photograph of a suspect; (2) that photographs of him as the person charged with this crime were published in two St. Louis newspapers and that these witnesses saw these photographs to his prejudice; and (3) that the lineup procedures were unfair and prejudicial to him in that he was placed in a lineup with four other persons whose physical characteristics here no resemblance to him and were so different that they constituted a suggestion to the witnesses that they should identify him as the killer of Sergeant Oebels. A picture of the five lineup participants and other evidence refute his claim that the lineup procedures were unfair and prejudicial to him.

As indicated, a hearing on this motion was held before trial and it was overruled. While there is evidence that some witnesses were shown a single photograph and some saw and read the articles in the newspapers, there is substantial evidence to support the finding that the later in-court identifications were based on what the witnesses saw at the time of the offense and were not the result of the photograph, the newspaper articles and identification, or improper or suggestive lineup procedures. State v. Cannon, 465 S.W.2d 584 (Mo. banc 1971); State v. Moore, 435 S.W.2d 8, 13 (Mo. banc 1968); State v. Balle, 442 S.W.2d 35 (Mo.1969).

Defendant's motions, above-mentioned, to produce documents bearing his purported signature and to produce any information held by the state which would tend to absolve him of the crime charged were filed April 25, 1969, the day after the court had ruled on seven of his pretrial motions and less than ten days before the date for which the case had been last set for trial. In his motion to produce documents bearing his signature he asked that these be furnished him not less than 45 days before trial. The court overruled these motions on April 29, finding that defendant had known since April 9 that the state would offer the testimony of a named and known handwriting expert and could have presented the motion to produce documents before or at the same time the other motions were presented and could have taken the deposition of the handwriting expert, but failed to do so; that the motion was not timely filed, but was filed for dilatory purposes. Later, at trial, documents identified as bearing defendant's handwriting and testimony of the expert witness were received in evidence without substantial objection. In these circumstances, we cannot say that the court abused its discretion in finding that the motion to produce documents was filed for dilatory purposes only. Rule 25.06(b), (c), V.A.M.R. While an accused would be entitled to see and examine questioned documents if requested by motion timely filed and diligently pursued, we hold that in this case the court did not err in overruling defendant's motion.

Defendant's motion to produce information which would absolve him of guilt sought 'all information of whatever form, source, or nature which tends to exculpate the defendant, either through * * * indication of innocence or * * * potential impeachment of * * * (a) witness * * * and all information which may be * * * of benefit * * * (to defendant).' As stated by this court in State v. Sweazea, 460 S.W.2d 614,...