State v. Smith, 41436

• Decision Date: 24 February 1981
• Docket Number: No. 41436,41436
• Citation: State v. Smith, 612 S.W.2d 895 (Mo. App. 1981)
• Parties: STATE of Missouri, Respondent, v. Herman Patrick SMITH, Appellant.
• Court: Missouri Court of Appeals

Page 895

612 S.W.2d 895

STATE of Missouri, Respondent, v. Herman Patrick SMITH, Appellant.

No. 41436.

Missouri Court of Appeals, Eastern District, Division Three.

Feb. 24, 1981.

George E. Sullivan, O'Fallon, for appellant.

William N. Seibel, Jr., Asst. Pros. Atty., St. Charles, John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

CRIST, Presiding Judge.

Defendant was convicted by a jury of first degree murder and first degree robbery. He was sentenced to consecutive terms of life and fifty years, respectively. The first degree murder conviction is affirmed. The first degree robbery conviction and judgment are reversed.

On the evening of January 7, 1977, defendant and co-conspirator were granted entrance to the trailer home of one John Russell Stewart, an acquaintance of the co-conspirator. Co-conspirator told Stewart "we are here to rob you," wrestled him to the ground and began choking him. Defendant went into another room of the trailer, obtained a neck-tie and gave it to co-conspirator, who used it to choke Stewart. Defendant then went into the other room looking for valuables. When he returned, he saw a knife sticking out of Stewart's chest. Co-conspirator told defendant that Stewart wasn't dead, pulled the knife from the victim's chest and stabbed him again. Defendant and co-conspirator then ransacked the trailer, and took a television, radio, some checks, three dollars in cash, and a number of other items. Defendant also took a pistol.

On January 13, 1977, defendant was arrested, in connection with a traffic accident, based upon information provided to police by co-conspirator. He was held on an unrelated charge. The body of John Russell Stewart was discovered two days later on January 15, 1977. At about 1:00 p. m. on January 16, 1977, defendant was advised of his Miranda Rights. He was then asked if he wanted to talk about killing Stewart. He stated that he did not. About an hour later, after he had eaten lunch, defendant contacted the police and stated he wanted to make a statement. He requested that co-conspirator be in the same room when the statement was given. Defendant was then readvised of his Miranda Rights, and after he repeated he wanted to talk, a video-taped confession was taken in the presence of co-conspirator.

Defendant claims error in the admission into evidence of his video-taped confession because he was not granted the right to consult with "other persons," and the statement was not voluntary. These points were raised by the defendant prior to trial in a motion to suppress the confession. An evidentiary hearing was held on the motion. Following this suppression hearing, defendant's motion was denied by the court. The hearing on defendant's motion to suppress is not made a part of the record on appeal. This record is not now available because it was not transcribed. The ultimate responsibility for the preparation and filing of the transcript on appeal is on defendant under Rule 81.12(a). Absent this evidence, we are unable to review defendant's Points I and II claiming error in the admission into evidence of his video-taped confession. State v. Harris, 564 S.W.2d 561, 565-66 (Mo.App.1978).

Defendant's Point III is in violation of Rule 84.04(d). It reads:

THE TRIAL COURT ERRONEOUSLY AND IMPROPERLY PERMITTED TESTIMONY WHICH WAS BLATANTLY HEARSAY, HIGHLY INFLAMMATORY AND VIOLATED OF APPELLANT'S CONSTITUTIONAL RIGHTS OF CONFRONTATION AND CROSS-EXAMINATION OF WITNESSES AGAINST HIM.

The argument portion of defendant's brief on Point III, is in violation of Rule 84.04(h) in that there is no specific page reference to the legal file or the transcript. Defendant states, therein that "at trial, State's witness Detective Bufford stated voluntarily that a co-conspirator had told him that the Appellant pulled a knife out of the victim's chest and reinserted it into the victim." He further states that this extra-judicial statement was stricken from the trial record. We...