State v. Taggert

• Decision Date: 14 July 1969
• Docket Number: No. 2,No. 53483,53483,2
• Citation: 443 S.W.2d 168
• Parties: STATE of Missouri, Respondent, v. Michael TAGGERT and Bradford Robert Hull, Appellants
• Court: Missouri Supreme Court

Page 168

443 S.W.2d 168

STATE of Missouri, Respondent, v. Michael TAGGERT and Bradford Robert Hull, Appellants.

No. 53483.

Supreme Court of Missouri, Division No. 2.

July 14, 1969.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, Norman A. Selner, Special Asst. Atty. Gen., Clayton, for respondent.

Shaw, Hanks & Bornschein, by Charles M. Shaw, Clayton, for appellant.

PRITCHARD, Commissioner.

Appellants were each convicted of the offense of forcible rape, and the punishment of each was assessed by the jury to fifty years imprisonment in the penitentiary.

It is not contended that the state failed to make a submissible case against appellants. Certain claimed erroneous rulings during the trial are presented, and the facts in connection therewith will be set forth below.

The first point is that the court erred in refusing a requested mistrial on the grounds: '(a) There were no Negroes on the venire of fifty-eight to sixty persons. (b) There was no evidence by the state that there were any Negroe names in the jury wheel.'

No argument is made in the brief as to this or any other point. Cited under Point I is Section 498.120, RSMo 1959, V.A.M.S.; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22; and Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25. Appellants' motion for mistrial, and discharge of the jury, came just after the twelve who were to try the case were selected. It was further then stated by counsel 'that the case by its nature is--has racial overtones and implications, and therefore the defendants should have had the opportunity to have a jury selected from a panel which contained some non-Caucasions.'

In the case of State v. Logan, 341 Mo. 1164, 111 S.W.2d 110, in support of the motion to quash the panel upon the ground that the deputy sheriff unlawfully discriminated against defendant in selecting all white citizens and did not summon or select any Negroes, appellant's counsel offered, and the court received, evidence to support the motion. That evidence showed, as was held by this court, that it had not been the custom to summon Negroes; that the deputy sheriff did not think he would have selected Negroes if he had known them to be good jurors; that in six years and eight months he had never selected a Negro for jury service. The court reporter there testified that he had never seen or known of a Negro being called for jury service in the county; many Negroes lived there who were of good moral character and who stood well in their several communities, and many were male citizens, over 21 years of age, sober and intelligent. In this case, no attempt was made by appellants to show that there was any long-continued, systematic, and arbitrary exclusion of qualified Negro citizens from jury service, as was the case in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, which was held in effect to constitute prima facie evidence of intentional exclusion. In State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, 952(1--3), it was ruled: 'The decisive matter is whether or not there actually was discrimination, and the burden to establish that was on defendant. Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 and cases cited.'

Appellants' cited cases above are of no aid to them absent any evidence of the existence of purposeful discrimination against Negroes serving on juries in Greene County. Appellants' first point is overruled.

Appellants moved for a mistrial and asked that the jury be discharged 'for the reason that on sixteen separate occasions, the prosecuting attorney, in his opening statement, referred to certain parties as 'Negroes,' and not just as parties.' The court's denial of the request is assigned as error, and appellants cite State v. Sheard, Mo., 276 S.W.2d 191. The record there was replete that appellant and his two companions were colored, and he was in the courtroom. So also here. The refusal to grant a mistrial was sustained by this court in the Sheard case, as being a matter in which the trial court has considerable discretion. The record here of the prosecuting attorney's opening statement does not itself show that the reference to appellants as being Negroes was designed to inflame the minds of the jury and thus prejudice appellants. The references are merely descriptive of the persons involved in the crime, and what the state would prove. Furthermore, appellants at no time objected to the term during the prosecutor's opening statement, but awaited the close thereof to move for a mistrial. As the state suggests, if counsel for appellants thought the use of the term really tainted the jury he should have objected when it was first used, rather than counting the number of times it was used, and then registering his objection at the close of the statement. Point II is overruled.

Assigned as error is the court's action in overruling appellants' objection to the prosecutrix' testimony that she saw the 'number two man' at police headquarters. The transcript shows that this testimony did not refer to either appellant. The witness was asked if she saw the number one man, who grabbed her inside her garage, in the courtroom the day of trial, and if she saw also the number three man, the last to join the other two, in the courtroom. Her answer was affirmative, and she pointed out these two persons. She was then asked if she had seen the number two man since July 14, 1966, the date of the occurrence. Her answer was 'Yes,' and when asked where she saw him she answered, 'I saw him at the St. Louis County Police Station.' Obviously the cited line-up cases, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, do not in any way apply. Point III is overruled.

The trial court overruled appellants' objection to the testimony of Officer Donald Eschelbach of certain matters pertaining to the possession of certain clothing, as being 'repetitious, irrelevant, and already in evidence.' The court's action is assigned as error. The prosecuting witness identified certain articles of her clothing, which were then admitted into evidence without objection. Officer Eschelbach then testified that he found at the prosecutrix' residence certain of these articles. There was no repetition, and the objected to testimony was certainly relevant to the circumstances of the initial assault upon prosecutrix. Point IV is overruled.

Officer James Scavatta was allowed to testify that appellant Taggert told him he was well acquainted with appellant Hull (and one Nathaniel Warters). Appellants' objection, here presented in Point V, is that this testimony was hearsay and irrelevant. That Taggert knew Hull would be an admission against his interest, both being charged with this crime. State v. Dixon, Mo., 420 S.W.2d 267, involved improper hearsay testimony of what a night man had told a store owner about two missing bottles of liquor being on the shelves. In State v. Chernick, Mo., 280 S.W.2d 56, the defendant was charged alone, and the prejudicially erroneous hearsay testimony was what defendant's alleged accomplice had told the circuit attorney which caused him to put out a warrant for defendant's arrest. Here, the prosecutrix definitely identified appellants as her assailants, thus establishing their conspiracy as accomplices in the crime. In State v. Loeb, Mo., 190 S.W. 299, Loeb and Doss were prosecuted jointly. The submissibility of the state's case turned on what Loeb had told one Bert Beckett that Doss was going to ship the stolen goods to Frank Beckett, and Doss was to receive one-half the proceeds from the sale. It was ruled by the court that Loeb's statement concerning his connection with the crime was admissible, but as to Doss' participation in the same it was not. Thus here, standing alone, Taggert's statement of acquaintance with Hull was admissible against the former, but not Hull. However, as the state points out, the question of admissibility of the statement became of little importance because both appellants in taking the stand as witnesses freely testified that they had a long-time acquaintance with each other. Point V is overruled.

Appellants contend that their confessions to the crime were involuntarily taken within Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trial record shows that the court held an interlocutory hearing upon the voluntariness of the confessions outside the hearing of the jury. The court, however, did not specifically find 'with unmistakable clarity' that the confessions were voluntary within the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. After submission of appellants' cases on this appeal this court, on March 12, 1969, ordered that the trial court, after giving counsel notice, and with appellants present, hold a hearing and receive such additional competent and material evidence as should be offered by the state and by defendants, and from a consideration of the evidence in the record and such further evidence as may be received, the trial court should make an finding as to whether the confessions were or were not voluntary.

On April 10, 1969, in compliance with said order, the trial court held a further hearing with both appellants present with counsel. As further ordered, a supplement to the transcript containing the record of the further hearing is now filed with this court. The express finding of the court was that the statements made by appellant Taggert 'to police officer James Scavatta at 10:15 p.m. on February 3, 1967, at the St. Louis County Police Department in the presence of officer Ronald Otte concerning the rape of Judith Brischetto as testified by...