State v. Stevens
| Decision Date | 12 April 1971 |
| Docket Number | No. 55295,No. 2,55295,2 |
| Citation | 467 S.W.2d 10,50 A.L.R.3d 96 |
| Parties | STATE of Missouri, Respondent, v. Daniel STEVENS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
Shaw & Howlett, Charles M. Shaw, Clayton, for appellant.
STOCKARD, Commissioner.
Appellant was convicted of second degree murder, and when the jury could not agree on the punishment, the court assessed and declared the punishment at life imprisonment. We affirm.
About 1:30 o'clock of the afternoon of November 25, 1968 a nephew of Mrs. Elizabeth Abbott discovered her partially nude body on the floor of her home at 223 Dennison, Ballwin, Missouri. She had been beaten repeatedly over the head with a six-pound metal barbell designed for exercise purposes.
On July 31, 1969 an indictment was filed in which appellant was charged with the murder of Mrs. Abbott. At the time of the murder appellant was fourteen years of age, and was subject to the provisions of Chapter 211 (), the Juvenile Code. The transcript before us does not so show, but presumably the Juvenile Court determined that appellant was not a proper subject to be dealt with under the Juvenile Code and that he should be prosecuted under the general law. There is no challenge on this appeal to such prosecution.
We will state generally the circumstances which led to the arrest of appellant and certain subsequent events and circumstances, and will set forth such additional facts deemed advisable in the discussion of the contentions presented on this appeal.
Appellant was a next door neighbor to Mrs. Abbott, and on the day of the crime had remained away from the Crestwood Junior High School because his younger brother was ill. The day following the crime, investigating police officers found in a multiflora rosebush near appellant's residence a pair of gloves and also a yellow shirt of the same size and same brand name of a blue shirt which belonged to appellant. He admitted he had a pair of gloves and shirt similar to those found, but said he had thrown the shirt in a trash can the morning of the murder, and that several days earlier he had lost the gloves at school. Stains on the shirt and on one of the gloves were of human blood Type O. The deceased's blood was Type O, and appellant's blood was Type A positive. The barbell was found lying next to the body of the deceased. On it there were fabric or glove impressions but no fingerprints. Strands of hair found on the right hand glove were submitted to a neutron activation analysis. One was found to have come from appellant and the other from the deceased.
About two o'clock of the afternoon of the day following the murder Police Officers Zimmerly and Binggeli talked to appellant in the principal's office at school. Officer Binggeli noticed a spot on the insole of his right shoe. With appellant's permission he took a scraping of it, and he also scraped some material from beneath appellant's fingernails. A chemical analysis showed human blood in the shoe scraping, but because of the insufficiency of the sample the type could not be determined. The fingernail scrapings showed the presence of blood, but again due to the insufficiency of the sample it could not be determined that it was human blood. Appellant was placed under arrest about five o'clock of November 26, and was immediately delivered by the police officers to the St. Louis County Juvenile Detention Center.
By appellant's points IV and XI he asserts that prejudicial error resulted when the court permitted Dr. Varkey Phillip to testify that at the request of the police he had taken a sample of blood from appellant, and in admitting into evidence Exhibit No. 58, the report of the analysis of appellant's blood which showed it to be Type A positive. The basis of the contentions is that although appellant was represented by counsel at the time the blood sample was extracted, counsel was not notified and was not present. Appellant relies on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and he attempts to distinguish Schmerber v. State v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.
Apparently recognizing that Schmerber v. State of California, supra, has laid to rest as without merit the contentions that the taking in a reasonable and medically accepted manner of a blood sample from a person under arrest violates due process or the privilege against self-incrimination, or constitutes an unreasonable search and seizure, appellant seeks to equate the factual situation here to that in Massiah v. United States, supra. In that case, with the cooperation of a co-indictee, federal authorities listened unbeknownst to defendant to a conversation between defendant and the co-indictee, and incriminating statements of defendant so overheard were introduced in evidence. It was held the accused was 'denied the basic protections of (the Sixth Amendment, that 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence') * * * when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.' Subsequently in the opinion, the court again emphasized that all that was ruled in that case was that 'the defendant's own incriminating statements, obtained by federal agents under the circumstances * * * could not be used by the prosecution as evidence against him at his trial.'
It was subsequent to the Massiah case that the Supreme Court of the United States decided the Schmerber case. There, in discussing the claim that the compulsory taking of a blood sample violated the protection of the Fifth Amendment against an accused being compelled to be a witness against himself, the court quoted from Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, that "(T)he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' It was then stated in the Schmerber case that The court then held that the taking of a sample of blood, even when without the consent of the defendant, did not involve 'even a shadow of testimonial compulsion upon or enforced communication by the accused * * * either in the extraction (of the blood sample) of in the chemical analysis.' The court then considered the claim that in compulsorily taking the blood sample, the accused's Sixth Amendment right to the assistance of counsel was violated. It held that its conclusion as to the claim of being compelled to be a witness against himself 'answers' the claim that he was denied the right to counsel within the scope of the Sixth Amendment, but it was added that 'No issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented.' We consider that the Schmerber case rules the contention of appellant except insofar as it is premised on the absence of counsel at a critical stage of a criminal proceeding, a contention not specifically asserted in the point but presented in argument, and the Schmerber case apparently left open that question.
Appellant does not cite or rely on cases such as United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, which hold that by reason of the Sixth Amendment a postindictment lineup is a critical stage at which an accused is entitled to have counsel present. However, in the Wade case, after ruling that a lineup is a critical stage the court commented on the argument that a lineup is merely a preparatory step in gathering evidence such as 'systematized or scientific analyzing of the accused's fingerprints, blood sample,clothing hair, and the like.' The court said: This reasoning would apply to the stage of withdrawing the blood sample as well as the analysis of the sample. We find no prejudicial error in the admission in evidence of the testimony of Dr. Phillip and of...
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...Davis, 653 S.W.2d 167, 175 (Mo. banc 1983), to assist a jury better to understand the facts and testimony of witnesses, State v. Stevens, 467 S.W.2d 10, 24 (Mo.1971), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971), and to prove an element of the case, State v. Cutts, 694 S.......
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State v. Mallett, 68030
...principal opinion, there was also stronger direct evidence to support the convictions than was present in this case. E.g., State v. Stevens, 467 S.W.2d 10, 25 (Mo.), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); State v. Aubuchon, 394 S.W.2d 327, 336 (Mo.1965); State v. S......
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State v. Garrett
...or not otherwise admissible evidence, even though possibly inflammatory, should be admitted over such an objection. State v. Stevens, 467 S.W.2d 10, 50 A.L.R.3d 96 (Mo.1971) cert. den. 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971). Such a determination involves a balancing of the probat......
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K. W. B., In Interest of, KCD
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