State v. Thomas

• Decision Date: 27 April 1976
• Docket Number: No. 36490,36490
• Citation: 536 S.W.2d 529
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerry Lewis THOMAS, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 529

536 S.W.2d 529

STATE of Missouri, Plaintiff-Respondent, v. Jerry Lewis THOMAS, Defendant-Appellant.

No. 36490.

Missouri Court of Appeals, St. Louis District, Division Two.

April 27, 1976.

Richard H. Sindel, Asst. Public Defender, Clayton, Mo., for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Charles H. Howard, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, Mo., for plaintiff-respondent.

STEWART, Judge.

A jury found defendant guilty of murder in the second degree (§ 559.020 RSMo. 1969) and fixed his punishment at fifteen years.

Defendant's principal contentions are that the trial court erred (1) in permitting the prosecutor to ask the defendant's witness if he had been convicted of juvenile delinquency; (2) in allowing a lay witness to testify that in her opinion the affray between defendant and the victim had terminated before the defendant shot the victim; and (3) in admitting dog tracking evidence without proper foundation.

Defendant does not challenge the sufficiency of the evidence. We briefly summarize the facts.

Defendant lived at 6228 Vetter with his mother, Mary Louise Jarrett, his stepfather Roosevelt Jarrett, is two younger sisters and the victim, Harvey Tenzsley, a nephew of Mrs. Jarrett. Defendant and Willie Malone, a friend, arrived at the house around 10:00 p.m. on June 25, 1973. When defendant came into the house he and his mother had some heated words. Harvey Tenzsley came out of his bedroom about that time. He and defendant had some words with respect to the use of defendant's record player. The defendant snatched the record player from the kitchen table, where Harvey had placed it, and ran to his own room. He was followed by Harvey who took the record player away from defendant. The defendant then went to the living room where Mrs. Jarrett had been ironing, grabbed the iron and ran back toward Harvey who was still in defendant's room. Mrs. Jarrett followed the defendant. She, defendant and Harvey started struggling over the iron. Harvey was holding the defendant, who was kicking. She did not see Harvey hit the defendant. Mrs. Jarrett took the iron from defendant who unintentionally kicked her. Harvey left defendant's room and went to the refrigerator in the kitchen. Mrs. Jarrett followed him into the kitchen and went to the kitchen closet to put the iron away. When she turned around the defendant was standing behind the dining room table holding a rifle. As Harvey turned around the defendant fired one shot which struck Harvey in the chest. The victim fell to the floor with a fatal gunshot wound.

Mrs. Jarrett did not hear the victim say anything just before he was killed. After the shooting the defendant left with the rifle, accompanied by Willie Malone.

The police were called and while tracking defendant's scent with a German Shepherd dog discovered a .22 caliber rifle in a building nearby. The defense witness, Malone, saw the defendant hide the rifle where it was discovered by the dog.

Willie Malone testified on behalf of defendant. In support of defendant's claim of self-defense he stated that he had seen Harvey hit the defendant across the head during the argument over the record player; that the victim was walking towards the defendant when defendant discharged the gun; and that as Harvey approached defendant he said that if defendant didn't shoot him, he would shoot defendant.

Defendant's first contention is that the trial court erred in overruling his objection to the '. . . State's inquiry of defense witness Willie Malone, whether he had a juvenile record and whether he had been adjudged a delinquent by the juvenile court.'

Willie Malone, who was 18 years of age at the time of the trial, was called as a witness on behalf of defendant. During cross-examination the prosecutor asked if he had ever been convicted of a crime. The witness responded in the negative.

Counsel then approached the bench and in the colloquy that followed the State announced its intention to attempt to show a finding of delinquency in the Juvenile Court, to which defendant objected; the court announced that he would overrule the objection. The court based his ruling on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In the discussion Mr. Fahrenkrog, the prosecutor, stated that he did not know if the witness had a record. The prosecutor then asked the following questions over defendant's objections:

'Q. Mr. Malone, I think you said you have never been convicted of a crime, is that correct?

A. Yes.

Q. Have you been known to the juvenile authorities?

A. Yes.

Q. Was there a finding of delinquency entered against you?

A. Nope.

Q. Never by the juvenile authorities?

A. No.'

The resolution of this issue is governed by § 211.271(3) RSMo. 1969 which states:

'After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in causes under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.'

As conceded by the State, Davis v. Alaska, supra, is not applicable here. Davis holes that under the circumstances in that case the defendant's Sixth Amendment right of confrontation is paramount to the policies of the States which enact legislation such as § 211.271. Thus the defendant in Davis was permitted to show the bias of a State's witness by introducing evidence that the witness was on probation as a juvenile delinquent at the time he identified defendant as a burglar. The State has no such right. Davis would appear to be limited in its application. The statute invoked here, § 211.271, and its predecessors have been held to prohibit the impeachment of witnesses by reference to their past juvenile history. State v. Williams, 473 S.W.2d 388, 389(1) (Mo.1971).

It is clear from State v. Pitchford, 324 S.W.2d 684, 689(8) (Mo.1959) that the statutory ban applies not only to impeachment by means of the juvenile record itself, but also applies to any cross-examination on the subject of prior juvenile 'convictions.'

The incredulity expressed in the question, 'Never by the juvenile authorities?' could tend only to indicate that the prior negative answer was not believable. This interrogation was conducted by a prosecutor who admitted that he had no knowledge that the witness had a juvenile record. The interrogation was not only improper under the statute but was conducted in bad faith. See State v. Thomas, 535 S.W.2d 138, (Mo.App.1976). We can only conclude that it was prejudicial error.

While the case must be reversed for the above reason we shall discuss other matters which may arise in a retrial of this case.

Defendant's second contention is that the trial court erred in overruling his objection to the prosecutor's question of Mrs. Jarrett as to whether in her own mind she thought the struggle was over after the victim left defendant's room and went into the kitchen. She testified that immediately prior to the killing there had been a struggle between the defendant and the victim; that she had assisted the victim in taking an iron away from defendant; and that Harvey Tenzsley had gone into the kitchen, after which defendant came toward Harvey with the rifle. She was then asked:

'Q. So at the time the iron was taken away from Jerry (defendant), you thought the struggle was over at that time?'

Defense counsel objected to the question because it called for a conclusion and because the witness' mental state was irrelevant. The objections were overruled and the question was asked again as follows:

'Q. So in your own mind at that time, Mrs. Jarrett, did you feel that the struggle was over?

A. Yes, I did.'

The questions called for an opinion or conclusion on the part of a lay witness. The State concedes that as a general rule a lay witness may not testify as to his...