State v. Shives

• Decision Date: 09 June 1980
• Docket Number: No. KCD,KCD
• Citation: 601 S.W.2d 22
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Stanley Howard SHIVES, Defendant-Appellant. 30332.
• Court: Missouri Court of Appeals

Page 22

601 S.W.2d 22

STATE of Missouri, Plaintiff-Respondent, v. Stanley Howard SHIVES, Defendant-Appellant.

No. KCD 30332.

Missouri Court of Appeals, Western District.

June 9, 1980.

William P. Russell, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Philip M. Koppe, Asst. Attys. Gen., Kansas City, for plaintiff-respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant was indicted for murder, first degree ("felony" murder). Sections 559.007 and 559.009, RSMo Supp. 1975, and Section 556.170, RSMo 1969. A jury found defendant guilty and fixed his punishment at life imprisonment. Judgment and sentence were entered and pronounced accordingly.

Defendant raises eight diverse points on appeal: (1) there was no "substantial" evidence to support the guilty verdict; (2) the trial court erred in overruling defendant's motion to suppress the indictment because the grand jury failed to keep any minutes of its proceedings; (3) the trial court erred in giving Instruction No. 5, the state's principal verdict-director, because it failed to specify the time of day the offense was committed in view of defendant's asserted alibi defense; (4) the trial court erred in sustaining the state's objection to defendant's introduction of the results of a polygraph examination; (5) the trial court erred in overruling defendant's motion to suppress an oral inculpatory statement made by defendant because it was obtained under "coercive" circumstances and was thereby involuntary; (6) the trial court erred in permitting defendant's accomplice to testify on behalf of the state; (7) a "representative jury panel" was not provided from which to select the petit jury which tried the case; and (8) the trial court erred in overruling defendant's "Motion to Reconsider" because "fairness and humane treatment demanded" that defendant should not have received a sentence "disproportionate" to those received by certain of his accomplices.

In view of defendant's broadside attack on the sufficiency of the evidence, the following facts are gleaned from a lengthy transcript. The jury could have reasonably found that around 7:00 P.M. on the evening of January 22, 1977, defendant and a companion named Joe Hatton had the latter's girl friend "case" the victim's house in Columbia, Missouri, to see if he was there alone. The victim was a reputed drug dealer in the Columbia area. Prior to that evening defendant, Joe Hatton, Eugene Clay and Ricky Christian had discussed robbing the victim and "pulling" a "drug-rip-off". Upon being advised that the victim was alone in his house, defendant and Hatton contacted Christian and Clay and the four proceeded to the victim's house, arriving there about 8:00 8:15 P.M. Defendant was armed with a .308 caliber rifle and Clay was armed with a .22 caliber revolver. The defendant and Clay entered the victim's house through the back door and Hatton and Christian were supposed to enter through the front door. While defendant was searching the victim's house for "reefers and money", Clay encountered the victim inside the house. Several shots were fired at the victim from inside the house. The victim then "bolted" the house through the front door with Clay, and eventually the defendant, in pursuit. Hatton and Christian were outside the front door of the victim's house at that time and they grappled with the victim in an attempt to stop him. As they were doing so Clay and the defendant burst out onto the front porch and Clay shot twice at the victim with his .22 caliber revolver and defendant shot once at the victim with his .308 caliber rifle. The victim "went down" in the front yard of the house. Defendant, Clay, Hatton and Christian then went back inside the victim's house and discovered some cash and marijuana which they took. After leaving the victim's house the "loot" was "cached" at Clay's home and the four then went their separate ways. The victim was wounded twice in the abdomen and once in the leg. He was taken to the Boone County Hospital in a critical condition and later removed to the Veterans Administration Hospital in Columbia, Missouri, where he succumbed on February 27, 1977. Expert medical testimony disclosed that a massive hemorrhage precipitated by the abdominal gunshot wounds was the cause of the victim's death. Two "slugs" were observed in the victim's abdominal area. One was removed but the other was left intact. The "slug" which was removed was identified as a .22 caliber "slug".

The hard core evidence in the state's case came from Columbia police officers who testified as to an oral inculpatory statement made by defendant, and from Hatton and Christian, two of defendant's accomplices. Defendant, who took the stand in his own behalf, denied the oral inculpatory statements attributed to him by the police officers, denied any knowledge of the offense, and said that he was at the Boone County Hospital when the offense occurred.

In determining the sufficiency of the evidence to support defendant's conviction, all the evidence and all favorable inferences to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1977), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977); State v. Chase, 444 S.W.2d 398, 401 (Mo. banc 1969); and State v. McGlathery, 412 S.W.2d 445, 447 (Mo.1967). When this legal template is superimposed upon the facts heretofore iterated it is patent that the evidence amassed by the state against the defendant was overwhelming and substantial and defendant's cry of a lack of substantial evidence to support the guilty verdict has a legally hollow ring. Defendant's first point (1) is rejected.

Defendant's next point (2) charges that the trial court erred in overruling defendant's motion to "suppress the indictment" because "the unavailability of the grand jury proceedings shackled (defendant's) efforts to properly prepare his defense." At the outset it should be noted that the record discloses that the grand jury which indicted defendant kept no minutes of its proceedings. Defendant seizes upon its failure to do so as an impregnable ground for quashing the indictment. The reasoning and argument advanced by defendant assumes that the grand jury was charged with a positive duty to keep minutes of its proceedings. This assumption is fallible for a number of reasons. Sections 540.100 and 540.105, RSMo 1978, are the only statutes found which bear on the issue. Section 540.100, supra, so far as here pertinent, provides that "(e)very grand jury may appoint one of their number to be a clerk thereof, to preserve minutes of their proceedings and of the evidence given before them . . .." (Emphasis added.) Section 540.105, supra, so far as here pertinent, provides that "(t)he official reporter of the circuit court, when directed by the judge thereof, shall take down and transcribe . . . any or all evidence given before the grand jury." (Emphasis added.) In view of the language employed in these statutes, cast as they are in discretionary and permissive terms, one cannot read into them a positive command that grand juries shall keep minutes of their proceedings however desirable doing so might be. Defendant, with commendable candor, mentions both of these statutes in the argument portion of his brief and in doing so states that "the law of Missouri imposes no duty to take minutes of the Grand Jury proceedings." Rule 25.03(A) (3), relating to disclosure by the state to a defendant without court order, recognizes, at least inferentially, the discretionary or permissive, as opposed to positive, nature of these statutes by providing that the state, upon proper request, is only required to disclose to a defendant "(t)hose portions of any existing transcript of grand jury proceedings which relate to the offense with which defendant is charged, containing testimony of the defendant and testimony of persons whom the state intends to call as witnesses at a hearing or trial." (Emphasis added.) Although making reference solely to Section 540.105, supra, State ex rel. Dunlap v. Hanna, 561 S.W.2d 411, 412 (Mo.App.1978), holds that any duty resting upon a grand jury to record evidence presented before it "must be imposed by the legislature" and Section 540.105, supra, is permissive rather than mandatory. Defendant attempts to breathe life into his second point (2) by ascribing constitutional overtones of denial of "due process" to the grand jury's failure to keep minutes of its proceedings. Doing so fails to revitalize this point. It has been held that the failure of a grand jury to keep minutes of its proceedings does not constitute a denial of "due process". United States v. Huckensteine, 475 F.2d 1131, 1132 (8th Cir. 1973); United States v. Gray, 464 F.2d 632, 635 (8th Cir. 1972); and United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971). Defendant's second point (2) affords no basis for relief.

Alleged error on the part of the trial court in giving Instruction No. 5, the state's principal verdict-director, because of its failure to circumscribe the time of the offense to a precise hour of the day, is the crux of defendant's next point (3). In view of the limited nature of defendant's attack on Instruction No. 5, it is unnecessary to quote said instruction in its entirety. Tersely put, Instruction No. 5 referred to the time of the occurrence of the offense as "on or about January 22, 1977". Defendant made no specific objection to Instruction No. 5 at the time of trial or in his motion for new trial. Instead, he chose, on both occasions, to make a general objection devoid of any semblance of specificity. Rule 20.03 (now Rule 28.03) provides that "specific objections to given or refused instructions and...