State v. Swingler, 43156

• Decision Date: 02 February 1982
• Docket Number: No. 43156,43156
• Citation: 632 S.W.2d 267
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Viron SWINGLER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 267

632 S.W.2d 267

STATE of Missouri, Plaintiff-Respondent, v. Viron SWINGLER, Defendant-Appellant.

No. 43156.

Missouri Court of Appeals, Eastern District, Division Two.

Feb. 2, 1982.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 19, 1982.

Application to Transfer Denied May 17, 1982.

Leonard W. Buckley, Jr., St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Judge.

Defendant was convicted of manslaughter. His appeal raises the following points of alleged trial court error: (1) instructing down on manslaughter under a first degree (felony) murder charge; (2) failing to declare a mistrial on a witness' reference to a "prior case" involving defendant; (3) use of a court-called witness; (4) failing to suppress statements made without Miranda warnings; (5) admitting inculpatory statements obtained as a result of alleged unlawful interrogation. We affirm.

A rather brisk marijuana trade was conducted at the Wraggs' family home in north St. Louis. On a January midevening, defendant was observed upon and about the Wraggs' premises and even presented himself at the front door. Commotion from individuals in the gangway outside the Wraggs' home caused the inhabitants concern, and a member of the family-Stephen Parker-was summoned as additional fortification against a breakin.

Sales of marijuana continued after Parker's arrival. However, the illicit business transactions were abruptly interrupted by two shotgun blasts fired through a window into the Wraggs' living quarters. Several people inside were struck by shotgun pellets, including four year old Cedric Draine who died as a result. Parker retaliated by firing two shots from a .22 caliber rifle at those outside. Defendant was felled by one shot to his neck, but he was able to arise and flee to a friend's nearby home.

Defendant was later taken to a hospital for treatment of his wound. Police officer Robert Outtz, as part of a routine investigation of a report of a gunshot wound, interviewed defendant at the hospital. Defendant related that he had been shot from a parked auto by one of four "dudes" whom he had encountered while returning home from a high school dance. Officer Outtz related this report to the Homicide Division, and two detectives visited defendant at the hospital in connection with their investigation of the Draine killing. This time defendant was given his full Miranda warnings. Again, defendant repeated that he had been shot by some individuals in a parked car after leaving a school dance. Released from the hospital, defendant was arrested, advised again of his Miranda rights and interrogated further. Stating that he did not want a lawyer, defendant told police that on the night of the killing he and two friends had planned to rob the Wraggs. One friend had a shotgun; defendant was armed with a .22 rifle. While defendant had gone to the front of the house, his companions went to the rear. On hearing gunfire, defendant had scurried towards the back of the Wraggs' house and in so doing was shot in the neck by gunfire from within.

At trial, defendant testified. His version of the events was that he had gone to the Wraggs' to buy dope, heard shots, and as he ran away was shot in the neck. He acknowledged that he had initially prevaricated to police about having been shot while returning from a school dance. He denied that he had a weapon at the Wraggs' or intended to participate in a robbery.

The jury was instructed on first degree murder in attempted robbery and on manslaughter. The jury's verdict was a finding of guilt as to manslaughter, leading to defendant's first two-pronged point on appeal: that the submission of manslaughter as a lesser included offense of first degree murder was erroneous; that there was insufficient evidence to support a manslaughter conviction.

Defendant relies on State v. Handley, 585 S.W.2d 458 (Mo. banc 1979), to assert that inasmuch as each contains different elements, manslaughter is not a lesser included offense of first degree murder. Hence, so the argument proceeds, submission of manslaughter is erroneous when only first degree murder is charged. However, this aspect of Handley was overruled in State v. Wilkerson, 616 S.W.2d 829, 832-33 (Mo. banc 1981). The legislature may specifically denominate one offense as a lesser offense of another so that a charge of the greater offense will support instruction on and conviction of the inferior offense without denying the accused his constitutional right to be informed of the charge against him. Id.; § 556.046.1(2), RSMo 1978. Manslaughter is a lesser offense of first degree murder by denomination, and the trial court properly instructed the jury in that regard. Rogers v. State, 625 S.W.2d 185, No. 44206 (Mo.App.1981); § 565.003, RSMo 1978; § 565.005, RSMo 1978; Notes on Use, MAI-CR 2d 15.00(3)(e).

Defendant also maintains that there was insufficient evidence to support the conviction of manslaughter, as there was no evidence that he acted with the purpose of committing that offense. ¹

In our review of the sufficiency of evidence we are guided by the fundamental precepts that we are to consider the evidence in the light most favorable to the state, accepting as true all evidence and inferences therefrom that tend to support the verdict and disregarding all contrary evidence and inferences. State v. Williams, 623 S.W.2d 552, 553 (Mo.1981); State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981); State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981).

The following legal maxims are also apropos to the issues raised. To prove a conviction there must be evidence directly associating defendant with the commission of the crime, showing that he affirmatively participated in the criminal undertaking. It is unnecessary, however, to establish that defendant personally committed each element of the crime, as he is liable for his cohorts' conduct. State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980); State v. Singleton, 602 S.W.2d 3, 8 (Mo.App.1980); State v. Kennedy, 596 S.W.2d 766, 769 (Mo.App.1980). To be guilty as an aider and abetter of manslaughter, the accused must have knowingly and intentionally aided and abetted the assault that resulted in the victim's death. State v. White, 622 S.W.2d 939, 945 (Mo. banc 1981); State v. Handley, 585 S.W.2d at 463, rev'd on other grounds, State v. Wilkerson, 616 S.W.2d 829 (Mo. banc 1981); State v. Grebe, 461 S.W.2d 265, 268 (Mo. banc 1970). The essence of the crime of manslaughter is the killing of a person. State v. McCall, 602 S.W.2d 702, 708 (Mo.App.1980).

In this case, the jury could find that defendant, with others, approached the Wragg residence bearing arms, intending to commit an assault, and, in the process, one of defendant's companions fired a shotgun into the home with fatal result for a four year old child. The evidence was sufficient to support the manslaughter conviction.

During trial, one of the police officers testifying for the state related his interview with defendant at the hospital and remarked that defendant had "stated that while being confined in the hospital the nurse at the hospital came into his room and stated a female who identified herself as a public defender who was representing him on a prior case told him not to-." Defendant's counsel interrupted with a request for a mistrial, which the trial court denied. However, the jury was instructed to disregard the statement. Defendant asserts that the "prior case" remark constituted an impermissible reference to a separate and distinct crime for which he was not at that time being tried.

The trial court did not err in refusing to grant a mistrial on the basis of this statement. The comment did not constitute clear evidence that defendant "has committed, or has been accused of, charged with, convicted of, or been definitely associated with, another crime or crimes." State v. Ross, 606 S.W.2d 416, 420 (Mo.App.1980), quoting State v. Jones, 523 S.W.2d 152, 155 (Mo.App.1975). See also, State v. Nash, 621 S.W.2d 319, 323 (Mo.App.1981). The comment was unsolicited, and the matter was not referred to again throughout the trial. State v. Harris, 622 S.W.2d 330, 335-36 (Mo.App.1981); State v. Cotton, 621 S.W.2d 296, 298-99 (Mo.App.1981). The trial court's prompt instruction to the jury to disregard the statement cured any possible prejudice to defendant. State v. Garrett, 622 S.W.2d 387, 390 (Mo.App.1981). Thus, there was no abuse of discretion in refusing to grant the drastic, extraordinary remedy of a mistrial. State v. Ford, 623 S.W.2d 574, 576 (Mo.App.1981); State v. Harris, 622 S.W.2d at 335-36; State v. Nash, 621 S.W.2d at 324.

The next complaint concerns the trial court's calling as its witness Anthony Turner, one of defendant's companions and a participant in the robbery scheme. In proceedings outside the jury's hearing, the state requested the court to call Turner as its witness principally on the ground that the state could not vouch for his credibility as he had been implicated in the criminal activity by defendant in a statement to detectives. Though the request was granted over defendant's objection, the record is clear that the jury could not know that Turner was called as the trial court's witness. ²

The Missouri Supreme Court has recognized the power of the trial court to call a witness as its own. Guidelines for the exercise of this authority are set forth in State v. Davis, 566 S.W.2d 437 (Mo. banc 1978). The practice, of course, is undesirable and should be used sparingly and only to prevent a miscarriage of justice. The party desiring the witness to testify must show why it cannot vouch for the witness' veracity and that the testimony relates to issues in the case. The decision to call a witness as a court's witness rests in the sound discretion of the trial court. State v. Davis, 566 S.W.2d at 447-48. See also Smith v. United...