State v. Seals, 57978

• Decision Date: 14 October 1974
• Docket Number: No. 57978,No. 2,57978,2
• Parties: STATE of Missouri, Respondent, v. Soloman SEALS, Jr., Appellant
• Court: Missouri Supreme Court

Page 481

515 S.W.2d 481

STATE of Missouri, Respondent, v. Soloman SEALS, Jr., Appellant.

No. 57978.

Supreme Court of Missouri, Division No. 2.

Oct. 14, 1974.

Rehearing Denied Nov. 12, 1974.

John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, for respondent.

Martin A. Rosenberg, St. Louis, for appellant.

HENRY I. EAGER, Special Commissioner.

Defendant was convicted of first degree murder and, pursuant to the jury verdict, he was sentenced to life imprisonment. He was represented at trial by able appointed counsel and was likewise so represented here. We take jurisdiction under our order of April 9, 1973, the notice of appeal having been filed before that date.

The jury might reasonably have found the facts as we now relate them. On the evening of November 3, 1971, at about nine o'clock, Thomas Spencer, Jr. (hereafter described as Spencer) met defendant on the street in front of Spencer's house; defendant asked him if he knew 'a boy named Ronald.' Spencer said 'No' and asked defendant 'Why?' Defendant then said that 'Ronald who was down at Rosalind's was messing with my sister.' We inject here that the sister, Earlene Spencer, had been defendant's girl friend, and was pregnant by him at that time. The two proceeded to Rosalind's house nearby, knocked, and entered. Rosalind Williamson and 'two boys' were sitting at the kitchen table, and Rosalind said she 'didn't want no trouble.' Defendant asked 'which one was named Ronald'; one boy stood up and said his name was Ronald. (This was Ronald Lane.) Defendant asked him to step outside and said that he wanted to talk to him. The two, defendant and Ronald, went outside to a small porch and very shortly thereafter Spencer followed them out, closing the door. Ronald was standing by the door and defendant was facing him, perhaps standing on the first step leading from the porch. Spencer heard defendant say to Ronald 'that he didn't want him messing with his woman'; Ronald answered that 'he wasn't messing with her,' and that they just went to school together; defendant said further 'make sure that you don't,' and 'came out of his back pocket and stabbed him.' Explaining further, Spencer testified: that defendant brought the knife from his back pocket with his right hand, a long 'butterfly' knife with a blade about seven inches long, and struck Ronald with it somewhere in the chest; that he did not see Ronald Lane do anything; that he, Spencer, then grabbed defendant and Ronald turned and went into the house. Ronald entered the house and collapsed; he died before he reached the hospital. Defendant and Spencer left. Spencer had not previously known Lane, but he had known defendant for a considerable time. Spencer demonstrated how the stabbing was done, and testified that he saw the knife strike Ronald in the chest. At about 10:30 that evening defendant appeared at the home of Beverly Glass, his new girl friend, told her that 'he had stabbed some boy,' that he threw the knife on a roof, and that she should tell the police that he had been there since four o'clock; he further told her that he stuck the knife in the boy and 'twisted it.' Beverly testified that she did tell the police that defendant was at her home from 4:30 p.m. until 8:00 the next morning; that she saw the knife on the day before the killing, it being the one 'he said he stabbed the boy with.' The autopsy showed that there was a stab wound with a 2--3 inch penetration of the left side of the chest and that it entered the right side of the heart. Lane died of that wound.

Defendant testified that he had served time in Algoa for purse snatching; that he was the father of Earlene's baby but that they had broken up about six weeks prior to November 3, 1971, although he still saw her occasionally. Defendant's version of the slaying was, in substance: that he and Spencer went to Rosalind's house, entered, and that he asked 'which one of you is Ronald?'; that Ronald stood up, and defendant asked him to step outside; that Ronald went out and defendant followed; that he and Ronald talked; that Ronald commented on his walking out on Earlene; that defendant accused him of meddling, and that Ronald 'come off the wall and dropped his hand and I saw the knife and ran into him'; that he grabbed Ronald's hand, down low, pulled it up and 'twisted it around,' pushed Ronald against the wall and the knife went into him. At another point he testified that 'I pushed the knife in and took it out of his hand'; he also testified: that Spencer was somewhere behind him at the time of the stabbing and did not actually see it; that Spencer pulled him away, and Ronald went into the house; that he threw the knife in a trash can; that there were some lies in the letters he wrote; that he had learned of Spencer's statement to the police. Certain of the police officers testified that defendant gave a false name when arrested, that he denied all knowledge of the slaying and said that he was with his girl friend from 4:00 p.m. on November 3 until 8:00 the next morning. This was precisely contrary to his testimony at the trial. Defendant testified that he went to Beverly Glass' after the stabbing. The jury obviously rejected defendant's testimony.

Spencer was charged as an accessory to the slaying; he made a statement to the police in the early morning after the slaying and appeared before the grand jury. For a time he and defendant were confined together or near each other in the jail; later Spencer was moved to another tier. Defendant then wrote several letters to Spencer, all identified and all received by Spencer; he wrote one to another inmate confined near Spencer and one to Earlene. These letters were offered in evidence; after consideration of objections the Court eliminated certain parts, excluded one entirely, and had those parts to be admitted typed as excerpts and renumbered as exhibits. The excerpts cover six pages of the transcript and it would be wholly impractical to relate them in detail. Their essential substance was: that defendant had told his lawyer that Spencer did not see the stabbing and that he should so testify; that Spencer was the last chance he had and that all he had to do was to change his statement and say that it was (D)onald's knife and that he pulled it on me; that he pulled the knife from his back pocket and ran toward me; that we 'was scuffling' with the knife and that he had it in his hand when he was stabbed; promise me you will say this; all you have to do is change your story; I am trying to put you away from the scene of the crime; this letter could send me away just as easy as your mouth; please don't let me down Bud; help me man, please; my life is in your hands; I'm gone without your help; I found out that you told on me; if we tell on each other we will both go to the penitentiary and if you tell on me you'd better pray that they give you a probation; without your statement they won't even have a case. In the letter to the other inmate, Robert Elise, defendant stated, in substance that he 'stabbed a dude and the dude died,' and that Thomas was with me; I guess he had told those people I did it; he can still 'make paper' if he change (sic) his statement and say I killed the dude accidentally; he is scared; I need him to tell these people that the dude attacked me with the knife; he won't answer me; talk to him for me.

Defendant conceded in his testimony that the references in the letters to 'Donald' were meant for Ronald Lane. When the assistant circuit attorney started to read to the jury the excerpts from defendant's letters, he said that he was authorized to read them in the typewritten form prepared and that 'portions of this evidence on this sheet and other portions prejudicial to the defendant have been excluded.' Counsel for the defendant immediately moved for a mistrial because the statement referred to the excluded portions as 'prejudicial.' The ensuing colloquy and the court's action will be discussed later.

Defendant's points here are: (1) that the excerpts of defendant's letters were inadmissible as too remote in time, and 'if material, then only as to such portions as related to the commission of the crime'; that admissions that defendant would be convicted if Spencer did not change his story and that both would go to the penitentiary were admissions of law and not fact, were only opinions, and did not have the effect of a judicial admission. (2) That the failure of the court to grant a mistrial upon the making of the statement that prejudicial portions of the letters had been excluded was error, and (3) that it was error to give Instruction No. 1 (on first degree murder) because deliberation was not shown.

The excerpts from defendant's letters, as read to the jury, were clearly admissible. State v. Christian, 245 S.W.2d 895 (Mo.1952). There, notes from defendant asking help in testimony from a fellow prisoner, offering him money, and suggesting the desired testimony were held admissible as evidence of guilt. The Court said, in part, loc. cit. 898: 'There can be no question about the admissibility of these exhibits. 'An attempt to fabricate evidence is receivable as evidence of one's guilt of the main facts charged.' 20 Am.Jur. 272, Sec. 289; see also 20 Am.Jur. 192, Sec. 186, p. 265, Sec. 280; 22 C.J.S. Criminal Law § 663, p. 966. Such an attempt is construed as being in the nature of an admission of guilt and we find no authority against receiving it in evidence. The latest case in this Court is State v. Smith, 355 Mo. 59, 194 S.W.2d 905, 907, in which we said: 'Evidence to show that an accused has attempted to fabricate or procure false evidence or destroy evidence against him is always admissible as showing consciousness of guilt. State v. Mathews, 202 Mo. 143, 100 S.W. 420. 'Evidence of the fact of an attempted subornation is admissible as an admission by conduct that the party's cause is an unrighteous one.' Fulkerson v. Murdock, 53...