State v. Sterling, KCD

Citation536 S.W.2d 843
Decision Date29 March 1976
Docket NumberNo. KCD,KCD
PartiesSTATE of Missouri, Respondent, v. Johnnie STERLING, Appellant. 27781.
CourtCourt of Appeal of Missouri (US)

Thomas M. Larson, Public Defender, Richard G. Roth, M. Shelbourne Bryant, Asst. Public Defenders, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant was charged in a three-count indictment with rape, robbery in the first degree, and assault with intent to kill with a deadly weapon with malice aforethought. Having waived a jury, the offenses for which defendant stood charged were tried to the court. At the close of all the evidence the state elected to dismiss counts one (rape) and two (robbery in the first degree) of the indictment and the case was submitted to the court solely under count three of the indictment, assault with intent to kill with a deadly weapon with malice aforethought (Section 559.180, RSMo 1969).

The court entered a verdict finding defendant guilty under count three of the indictment. After a pre-sentence investigation, his punishment was fixed at thirty years confinement in the custody of the Missouri Department of Corrections. 1 Allocution was afforded, and judgment was rendered and sentence pronounced and entered accordingly.

On appeal, the brief filed on defendant's behalf by appointed counsel raises only one claim of error: 'The court erred in overruling the motion to suppress defendant's written confession because it was taken after defendant had invoked his fifth amendment privilege not to incriminate himself and under the totality of circumstances derogated rights guaranteed to defendant by the Fifth and Fourteenth Amendments of the United States Constitution.' Defendant, however, apparently concluding that the brief filed by appointed counsel failed to raise all viable issues, filed four pro se briefs. Read in conjunction with each other, the pro se briefs appear to raise three additional claims of error which may be paraphrased as follows: (1) The verdict returned by the trial court did not find defendant guilty of an offense proscribed by Section 559.180, RSMo 1969, because it failed to include the word 'aforethought' after the word 'malice', and, therefore it was a verdict finding him guilty of an offense proscribed by Section 559.190, RSMo 1969, which carries a maximum punishment of five years imprisonment; 2 (i) Prosecution of defendant under Section 559.180, supra, rather than for 'attempted murder', violated his constitutionally guaranteed rights of 'due process and equal protection' because the maximum punishment prescribed by Section 559.180, supra, exceeded the maximum punishment prescribed in paragraph (2) of Section 556.150, RSMo 1969, the general 'attempt' statute; and (3) The imposed sentence of thirty years confinement in the custody of the Missouri Department of Corrections resulted from the trial court's improper consideration of the other charges leveled against the defendant which were subsequently dismissed at the close of all the evidence, and was otherwise excessive.

The four pro se briefs referred to were intermittedly filed by defendant without leave of court over a period of approximately ten months, the fourth and final one having been filed on the day the case was argued before and submitted to this court on appeal. All but one were untimely filed. With respect to those filed out of time, defendant made no attempt to have them considered by invoking Rule 84.08. 3 This court is being confronted with a steady progression of instances of accuseds in criminal cases on appeal filing pro se briefs even though their counsel of record have already filed briefs. Understandably, the pro se briefs which are filed rarely comply with the rules governing appellate procedure and, in many instances, infuse the respective appeals with elements of confusion. Appellate courts faced with this situation are placed in the incongruous position of either summarily rejecting such briefs for noncompliance with the rules, thereby giving the appearance of arbitrarily disregarding the rights of those seeking redress before them, or of expending an inordinate amount of time attempting to draw some semblance of meaning from them. In those instances where appellate courts, out of conscience, yield to the latter course, the entire appellate process is reined to almost a complete standstill because of the expenditure of time usually required to ferret out and understand the issues sought to be raised. Time and experience have taught that the administration of justice is best served by adherence to procedural requirements and rules. When procedural requirements and rules are lightly ignored, confusion is most often the result, and if justice then emerges it is more by chance than by design. Pro se briefs in criminal cases filed out of time without leave of court, and which bear little or no resemblance to compliance with appellate procedural requirements and rules, in most instances, confuse rather than aid the appellate process. Unrestrained consideration of them tends to place meaningful appellate consideration of criminal appeals in serious jeopardy. Although this court, with great reluctance, has concluded to review the issues raised by defendant in his pro se briefs for the simple reason that existing case law prevails to support a ready disposition of them, a caveat is sounded with respect to entertaining issues sought to be raised in future criminal appeals by pro se briefs which fail to comply with appellate procedural requirements and rules. If accuseds in criminal appeals represented by counsel insist on representing themselves separate and apart from the efforts of counsel of record, then they must abide by and be bound by the same procedural requirements and rules imposed on counsel and stand ready to suffer the same consequences for noncompliance.

Notwithstanding his contention that the verdict returned by the trial court did not find him guilty of an offense proscribed by Section 559.180, supra, defendant does not question the sufficiency of the evidence to support a verdict for violation of said statute. Therefore, a brief summary of the evidence will suffice. Defendant entered the victim's home at approximately 11:00 P.M. on the night of May 12, 1974, commenced hitting her with his fists and told her, 'I intend to kill you.' After a lapse of time, defendant then picked up a telephone and unmercifully beat the victim into a state of unconsciousness. According to the victim, just before she lapsed into unconsciousness, the defendant tore her robe off and 'stuck his penis in (her).' The vicious beating administered by defendant broke the victim's arm in two places, her jaw in two places, and inflicted cuts 'all over' her face and head requiring innumerable stitches. A written confession made by defendant, which was offered and admitted into evidence, corroborated certain portions of the victim's testimony.

In order to place defendant's first claim of error in proper dispositional context, it is necessary to review the evidence adduced in connection with his motion to suppress. Defendant was arrested at approximately 2:30 the following morning at his place of abode. He was taken to 'police headquarters' of the Kansas City, Missouri, Police Department at 1125 Locust Street. The record is silent as to when he arrived at 'police headquarters'. Sometime after his arrest, and more precisely at approximately 4:20 A.M., a detective on the police force removed defendant from the 'jail' on the eighth floor of 'police headquarters' and took him to the second floor for the 'purpose' of 'interrogating' him. Two detectives on the police force conducted the interrogation. Prior to any interrogation, defendant was handed a printed 'Miranda' warning and asked if he could read. Defendant replied that he could and then proceeded to read the printed 'Miranda' warning. After defendant read the printed 'Miranda' warning he was asked if he understood it and he replied that he did. The printed 'Miranda' warning which was handed to and read by defendant, and which he stated he understood, contained a place for him to sign indicating a waiver of his rights explained therein. Defendant did not sign the printed 'Miranda' warning, and, according to one of the detectives present, gave the following reason for not doing so: 'He stated he understood his rights, but he just didn't want to sign any type of report at that time.' Defendant at no time ever requested to contact or have an attorney present. Notwithstanding his refusal to sign the written waiver on the printed 'Miranda' warning, the record bears out that almost immediately thereafter defendant 'was willing to talk' and did talk to the two detectives regarding the offense for which he had been arrested. According to the record, during this stage of the interrogation, both of the detectives kept stressing to defendant 'that he could have an attorney if he wished', 'that he didn't have to make any statement', and 'that he didn't have to talk to (them) if he didn't want to.' Throughout this portion of the interrogation, defendant 'wouldn't give (the detectives) too many facts, but he was willing to talk with (them).' After passage of a brief period of time defendant interrupted the questioning and advised the two detectives that he would like to talk to a 'friend' before talking any more with them. Defendant's request was honored and all questioning ceased at that time. The 'friend' with whom defendant wished to talk was a gentleman by the name of Russell Dupree. Mr. Dupree, who was contacted by one of the detectives, arrived at 'police headquarters' sometime after 5:00 A.M. Defendant, in an isolated place,...

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9 cases
  • State v. Cooper, 10173
    • United States
    • Missouri Court of Appeals
    • August 6, 1976
    ...se briefs and the absolute necessity of such briefs complying with appellate procedural requirements and rules. In State v. Sterling, 536 S.W.2d 843, 845--846 (Mo.App.1976), Judge Somerville 'This court is being confronted with a steady progression of instances of accuseds in criminal cases......
  • Sterling v. Wyrick, 76CV373W-4.
    • United States
    • U.S. District Court — Western District of Missouri
    • September 8, 1976
    ...the Circuit Court. His subsequent appeal to the Missouri Court of Appeals, Kansas City District, was unsuccessful. See State v. Sterling, 536 S.W.2d 843 (Mo.App.1976). On May 3, 1976, the Missouri Court of Appeals denied petitioner's motion for rehearing or transfer to the Missouri Supreme ......
  • State v. Hull
    • United States
    • Missouri Court of Appeals
    • February 19, 1980
    ...relinquishment, a refusal to sign such a written declaration does not necessarily preclude an oral or an implied waiver. State v. Sterling, 536 S.W.2d 843 (Mo.App.1976); North Carolina v. Butler, supra. Such a waiver has been found to exist in a number of cases involving circumstances simil......
  • State v. Urhahn, 42851
    • United States
    • Missouri Court of Appeals
    • July 28, 1981
    ...the appellant's willingness to make an oral statement clearly indicates an implied waiver of her right to silence. See State v. Sterling, 536 S.W.2d 843 (Mo.App.1976); State v. Clark, 596 S.W.2d 747 In further support of her contention that the statements were involuntary, defendant relies ......
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