State v. Shields

• Decision Date: 14 June 1965
• Docket Number: No. 50761,No. 1,50761,1
• Citation: 391 S.W.2d 909
• Parties: STATE of Missouri, Respondent, v. Charles Cecil SHIELDS, Appellant
• Court: Missouri Supreme Court

Page 909

391 S.W.2d 909

STATE of Missouri, Respondent, v. Charles Cecil SHIELDS, Appellant.

No. 50761.

Supreme Court of Missouri, Division No. 1.

June 14, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 12, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Special Asst. Atty. Gen., Kansas City, for respondent.

Paul S. Brown, St. Louis, for appellant.

HENLEY, Judge.

By an information substituted for an indictment defendant and one Robert Krenning were charged with robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120 and 560.135. (All references to statutes and rules are to RSMo 1959 and V.A.M.S., and V.A.M.R., respectively.) The information also charged defendant under the Habitual Criminal Act with convictions of prior felonies. Section 556.280. A severance was granted Krenning, and upon separate trial a jury found the defendant, Shields, guilty of robbery in the first degree by means of a dangerous and deadly weapon. The court found that defendant had been convicted of prior felonies and assessed his punishment at imprisonment in the penitentiary for forty years. His motion for new trial was overruled, he was sentenced in accordance with the punishment assessed, and he appeals.

Defendant assigns as error argument of the state's attorney described by defendant as a reference to his failure to testify, and the admission of certain testimony of a police officer. A brief description of the evidence will suffice.

On Saturday afternoon, February 2, 1963, in the course of about five minutes, two men held up James Otto Laudel in the basement office of Laudel Realty Company at 3616 Castleman Avenue in St. Louis. The defendant was identified by Laudel at the police station, and later at the trial, as being the older of the two and the other, the younger man, was identified by defendant to police officers as Robert Krenning. Under compulsion at a .45 automatic pistol pointed at him by defendant and the announcement that 'this is a holdup', Laudel permitted the younger man to take his wallet containing approximately $18. Being dissatisfied that a search of the office had not produced additional money, defendant took Laudel's Elgin wristwatch from the latter's wrist and then 'slugged' Laudel twice with the pistol knocking him into a corner across the room. As Laudel regained consciousness, the building janitor walked into the office and was beaten into unconsciousness with the pistol by the younger man. In one of the blows to the janitor's head a plastic grip of the pistol handle was broken, the pieces falling to the floor. These pieces were recovered by police and identified as fitting together and belonging to the pistol found in the possession of one Charles Dacus on his arrest the next day. Defendant and Krenning were also arrested the next day. At his arrest, defendant had on his wrist the Elgin watch taken from Laudel during the robbery. In a statement to witness, Joseph Grau, a detective of the St. Louis Police Department, defendant admitted the robbery and identified the pistol found in the possession of Dacus as that used in the robbery. Defendant, in his statement to the detective, identified Krenning as one of his co-conspirators and his accomplice at the Realty Company office, and he identified Dacus as the accomplice who drove him and Krenning to the office and in whose automobile they left the scene.

Defendant did not testify, nor was evidence offered in his behalf.

Two of the four points relied on by the defendant are that the court erred in permitting police officer Lawrence Ventmiglia to testify, over objection, that: (1) he arrested Robert Krenning, and, (2) he arrested Charles Dacus at his home and found a .45 automatic pistol with three live bullets in Dacus' bedroom. He says that evidence of these arrests and the finding of those articles in Dacus' room was inadmissible because there was no evidence to connect Krenning, or Dacus and the pistol and bullets to the defendant or the robbery. The two points are presented together in defendant's argument and we too find it convenient and logical to treat the points in the same manner.

Evidence of the arrest of those defendant has identified as his accomplices and of the recovery of the pistol used in the robbery from one of those accomplices is, of course, admissible. State v. Johnson, Mo., 286 S.W.2d 787, 792. Evidence of his own statements to the detective refute his reasons for his objection to this testimony.

The two remaining points of error are closely related and may be treated together, for disposition of the first will obviate a discussion of the second. The first of the two, in the words of defendant, is: 'The trial court erred in refusing defendant's request for a mistrial when the State's Attorney referred to defendant's failure to testify by telling the jury there was one other witness (referring to defendant) whom they could test by the standards in Instruction No. 3 the credibility of witnesses instruction.' The second of the two, and his last point, is that this court should invoke the plain error rule (Criminal Rule 27.20(c)) if we hold that this argument of the state's attorney was a reference to defendant's failure to testify but find that the point was not preserved for review, or defectively raised or preserved. While the objection was not a model, we deem and treat it as sufficient to preserve the alleged error for review.

That portion of the state's attorney's closing argument objected to by defendant is: 'There is one other witness, one strictly important witness, who has told you about this robbery and explained to you how it was committed, and again, you can say, 'I will test this witness by the standard which you are to apply through the Court's Instruction No. 3;' and those words are important right here--he says, through Officer Grau: 'I held up James Laudel. I used that gun. I took that watch'.'

Instruction No. 3 is the ordinary credibility of witnesses' instruction stating, in that part pertinent to defendant's point and contentions, that in determining the credibility of a witness and the weight to be given his testimony the jury may take into consideration the witness' demeanor on the stand and the probability or improbability of his statements.

Section 546.270 and Criminal Rule 26.08, in identical language, state that: 'If the accused shall not avail himself * * * of his * * * right to testify * * * it shall not * * * be referred to by any attorney in the case * * *.' The Rule and the Statute are mandatory. State v. Shuls, 329 Mo. 245, 44 S.W.2d 94, 97. Counsel (and the court) should follow the practice of rigidly refraining throughout the trial from any reference to a defendant's failure to testify. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455. This court has said that if counsel for the state in...