State v. Stephens, 57063

• Decision Date: 11 March 1974
• Docket Number: No. 57063,57063
• Citation: 507 S.W.2d 18
• Parties: STATE of Missouri, Respondent, v. Jame Edward STEPHENS, Appellant.
• Court: Missouri Supreme Court

Page 18

507 S.W.2d 18

STATE of Missouri, Respondent, v. Jame Edward STEPHENS, Appellant.

No. 57063.

Supreme Court of Missouri, En Banc.

March 11, 1974.

John C. Danforth, Atty. Gen., Neil MacFarlane, Daniel P. Card, II, Asst. Attys. Gen., Jefferson City, for respondent.

Murry A. Marks, Clayton, for appellant.

STOCKARD, Commissioner.

This is an appeal from the judgment entered pursuant to jury verdict wherein James Edward Stephens was found guilty of second degree murder. The notice of appeal was filed prior to January 1, 1972.

The sufficiency of the evidence is not challenged. The jury reasonably could find that on September 10, 1970, appellant intentionally shot and killed Daniel Hunter.

Appellant's first point is that the trial court erred in overruling his pretrial motion 'to suppress the line-up,' and also in permitting Larry Sullivan to make an incourt identification. From argument we find that appellant contends the lineup was improper because counsel was not present, and his challenge to the incourt identification is on the basis that it was tainted by the improper lineup.

The lineup in this case was held before the indictment was returned by the grand jury. Therefore, the absence of counsel did not deprive appellant of any constitutional right. State v. Walters, 457 S.W.2d 817 (Mo.1970); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). In addition, the State presented no evidence at the trial of any lineup identification. In that situation it is immaterial, even if appellant was entitled to counsel at the lineup, that none was present. Reynolds v. Lockhart, 470 F.2d 161 (8th Cir. 1972).

Appellant's challenge to the incourt identification is without merit. As noted, the presence of counsel was not required at the lineup, and our review of the record shows a substantial independent basis for the incourt identification. We shall not review that evidence because, in any event, appellant testified in his own behalf and unequivocally stated that he intentionally shot Daniel Hunter at the time and place mentioned in the indictment. This removed from the case any issue of the identification of appellant as the one who committed the act with which he was charged. Assuming something improper in the lineup or in the admission in evidence of the incourt identification testimony of Larry Sullivan, which in our opinion did not occur, the error would have been harmless beyond a reasonable doubt.

Appellant's second point is that the trial court erred in overruling his motion 'to strike the names' of three witnesses who were endorsed as prospective witnesses for the State.

Appellant propounded interrogatories pursuant to Rule 25.11 V.A.M.R., to be answered by the three witnesses. Three months later the interrogatories had not been answered, and at appellant's request the trial court directed that answers be made. A month later, after the trial had started and the jury had been selected but not sworn, appellant filed a motion to strike or exclude the testimony of the witnesses to whom the interrogatories had been directed because no answers to those interrogatories had yet been received. It was then developed that the assistant circuit attorney in charge of the trial was not the person who represented the State when the court had ordered the interrogatories to be answered, and trial counsel did not know why the answers had not been made. The court directed that the assistant circuit attorney who had represented the State at the time the order had been entered be brought before it. Apparently this was done, and a proceeding was held in the court's chambers. What there occurred is not shown in the record, but the court overruled appellant's motion to strike or exclude the testimony of the three witnesses, and it directed that the interrogatories be answered before the jury was sworn. In its comments the court stated that it considered the motion to strike or exclude the testimony to be untimely under the circumstances. The court also stated that it had received a letter from appellant's counsel in which he requested that the case be set for trial, and in which he stated that appellant was ready to go to trial. The court concluded that any objection to the delay in receiving the answers had been waived. The reason the interrogatories were not answered earlier is not shown, but after the answers were made, which was prior to the time the jury was sworn, there was no request for a delay and there was no objection to then proceeding to trial.

In the above circumstances, we cannot rule that the trial court abused its discretion in overruling appellant's motion, particularly when he now does not demonstrate any prejudice to him by the delay in receiving the answers to the interrogatories.

Appellant's third point is that the trial court erred in overruling his motion to suppress all statements or confessions made by him.

Appellant does not contend that he was not given the 'Miranda' warnings, but instead he contends that at the time he made the statements he was intoxicated to such a degree that he could not understand the warnings given to him or appreciate the effect of his statements. After a pretrial hearing on this issue, the trial court overruled the motion to suppress, but it did not enter of record a finding with unmistakable clarity that the statements of appellant were voluntarily made. For that reason we required that there be held a supplemental hearing on that issue. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963). The transcript of that hearing has been made a part of the transcript of this case.

At the first hearing on the issue of voluntariness of the statements, two police officers testified that appellant was given the 'Miranda' warnings, that he then stated he wanted to make a statement, and that he did so after requesting and being permitted to talk to his brother. One of the officers stated that there was 'some odor of alcoholic beverage' on appellant, that he had been drinking but was not intoxicated, and that he was coherent and his speech was not slurred. Another officer testified that he detected an odor of alcohol on appellant, and that in his judgment appellant had been drinking. He was not asked if he considered appellant to be intoxicated, or whether he exhibited any other indications of intoxication. Appellant testified that before he turned himself in to the police he had consumed a half case of beer and about a 'fifth' of whiskey, and that when he went to the police station he was 'blind drunk.' He further testified that he did not remember making any statements, and he did not remember meeting or talking to the police officers. Appellant's mother-in-law and wife both testified that appellant was drunk when he went to the police station to turn himself in.

At the supplemental hearing, appellant called only one witness, Police Officer Francis Sullivan. He testified that about midnight of October 7, 1970, he received a telephone call at his home from a person by the name of Walsh, known to Officer Sullivan as a person who worked for a bonding company, who stated that appellant wanted to surrender to the police. About two hours later Officer Sullivan met appellant, who was accompanied by his wife, his mother-in-law, and Mr. and Mrs. Walsh. Officer Sullivan had known appellant for about fifteen years, and he spoke to him and shook hands with him. He then took appellant to the fourth floor of the police station where he made out the report for his detention. It was Officer Sullivan's opinion that appellant had been drinking, but that he was not intoxicated. He did not discuss with appellant the charge against him, and appellant made no statement to him.

Appellant's counsel indicated a desire to call Mr. and Mrs. Walsh, at the supplementary hearing, and the court directed the sheriff to assist in having them present. It developed that Mrs. Walsh was not available because of illness. Mr. Walsh was present in the court the following day, and the record shows that appellant's counsel 'talked to Mr. Walsh in the presence of (appellant) and (appellant) was thoroughly advised as to what Mr. Walsh's testimony would be, and (appellant's counsel) recommended and (appellant) concurred that Mr. Walsh be not called as a witness, and (appellant's counsel) further indicated if Mrs. Walsh were available her testimony would be similar and therefore he would not call her as a witness.'

In detailed findings of fact, the trial court concluded and found that the statements of appellant made to police officers and subsequently admitted into evidence 'were voluntarily made and were a product of a rational intellect and the exercise of free will by the defendant.' This finding was necessarily based on an evaluation by the court of the credibility of the witnesses. It was not required to believe the testimony of appellant that he was 'dead drunk.' In arriving at its findings the trial court noted circumstances inconsistent with appellant's claim that he was so intoxicated he could not have made voluntary statements to the police. For example, before appellant surrendered himself he contacted Mrs. Walsh in her capacity as a writer of recognizance bonds. He was accompanied to the place to meet Officer Sullivan by his wife and mother-in-law who made no contention at that time that he was intoxicated. Appellant testified in detail about his acts immediately prior to surrender, but claimed he was 'dead drunk' immediately after his surrender. After being made aware of the testimony of Mr. Walsh, a disinterested person who accompanied appellant to the police station, he elected not to present his testimony. We need not mention other circumstances. These are sufficient to demonstrate the reasonable basis for the trial court to refuse to believe appellant's version of circumstances in which he made the statements to the police officers. We find no merit to appell...