State v. Thompson

• Decision Date: 13 December 1965
• Docket Number: No. 51140,51140
• Citation: 396 S.W.2d 697
• Parties: STATE of Missouri, Respondent, v. Douglas Wayne THOMPSON, Appellant,
• Court: Missouri Supreme Court

Page 697

396 S.W.2d 697

STATE of Missouri, Respondent, v. Douglas Wayne THOMPSON, Appellant,

No. 51140.

Supreme Court of Missouri, En Banc.

Dec. 13, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Bill D. Burlison, Sp. Asst. Atty. Gen., Cape Girardeau, Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.

James B. Herd, St. Louis, for appellant.

EAGER, Judge.

This defendant was convicted in December, 1961, of first degree murder and, upon a finding making our Second Offender Act applicable, he was sentenced by the court to be executed. At the trial he was represented by counsel of his own choice. Upon appeal, the judgment and sentence were affirmed. 363 S.W.2d 711. Generally, the points involved upon the appeal did not include those which confront us now. The crime of which defendant was convicted occurred in Cape Girardeau County; he was tried in Bollinger County on a change of venue. The essential facts are stated in our former opinion. By sundry intermediate proceedings the execution of the sentence has been stayed.

On January 13, 1964, defendant filed in the trial court, acting through new counsel, his motion to vacate the judgment under our Rule 27.26, V.A.M.R. The court denied the motion without a hearing, from an examination of the files and record. On appeal this court, acting on its own motion, reversed the judgment and order and remanded the cause for a hearing upon specifically designated questions of fact raised in the motion. Upon disqualification of the regular judge, the Honorable Marshall Craig was designated to hear the matter. He has done so in a lengthy and meticulously conducted hearing, has entered his findings, and has denied the motion. The matter is now here for a determination de novo on the merits upon the voluminous evidence presented.

We first digest, very briefly, the allegations of the motion, as amended. They are: (1) that the conviction was obtained through the willful use of perjured testimony on the part of Police Officers Robert Ross and Hugo Lang; (2) that the conviction was also rendered void,--(a) by the use in evidence of written and oral statements which were involuntarily made; (b) because defendant was denied effective assistance of trial counsel in that the latter did not require a showing of voluntariness before permitting the statements of defendant to be received in evidence; (c) because the Prosecutor deliberately suppressed material evidence, namely, empty shells found at the scene of the shooting and a ballistic report concerning them, and also misled the jury in argument into believing that no such evidence was in the State's possession; (d) in that defendant was denied a voir dire examination sufficient to determine the prejudices of the members of the jury panel, in view of the widespread publicity and the existing sentiment against him. The transcript proper consists of 466 pages; in addition, we have the transcripts of the original trial and of the coroner's inquest (offered as exhibits), a supplemental transcript of additional parts of the trial proceedings, and scores of other exhibits. Although defendants was granted leave to appeal as a poor person with a free transcript furnished, we note that he was represented at the hearing and is now represented on this appeal by non-appointed counsel, and that his seventy-two page brief has been printed, which represents no inconsiderable expense. He certainly does not come here entirely as an indigent in the usual sense.

The trial court found: that there was no use of perjured testimony; that the statements made by defendant and introduced at the trial, both oral and written, were voluntary; that the voir dire examination was sufficient; that defendant was not denied the effective assistance of counsel; and that the movant failed to show that the Prosecutor had suppressed material evidence. In certain of these findings the court indicated its reasoning more particularly; we shall refer to some of these findings further in the body of this opinion.

As stated, the facts are rather fully set out at 363 S.W.2d 711. On the evening of March 10, 1961, two police cars had been pursuing a 1956 Oldsmobile driven by Sammy Aire Tucker with the defendant riding as a passenger, in the north part of Cape Girardeau; they stopped it on the shoulder. One police car stopped a few feet behind the Oldsmobile, the other turned around and stopped on the opposite shoulder. From the first car Officer Crittendon walked up beside the driver and began to question him, Officer Goss walked to a position opposite the rear window on the right side. Tucker, without warning, shot Officer Crittendon fatally in the stomach, and immediately began firing at the officers across the road; at almost the same instant shots were heard on the right side of the Oldsmobile, resulting in the death of Officer Goss whose gun was still in its holster. One shot went through both of his legs near the knees, severing arteries in both legs, and he died that evening from loss of blood. The present defendant was standing beside the passenger's seat of the Oldsmobile at the time. Another officer, Lang, was somewhat to the rear. As indicated in our former opinion, there was ample evidence to support the conviction of this defendant for the murder of Officer Goss.

It is generally both difficult and disagreeable for a court to 'rehash' the events of a criminal trial and conviction after such a lapse of time, particularly in collateral proceedings, as here. And, certainly, the prolonging of such proceedings over a period of years usually works no good, either to our processes of justice, or to the regard in which those processes are held in the minds of the lay public or the Bar. Yet, so long as this mode of review is permissible, it is our solemn duty to consider and enforce it. In this background we have given this record a somewhat unusual amount of study.

We agree with the findings of the trial judge in all particulars but one. That, of course, proves vital. This point of disagreement is expressed in defendant's brief in part as follows: '* * * that the prosecutor at the appellant's trial deliberately suppressed and failed to disclose to the court or defense counsel material ballistic evidence in the possession of the state consisting of cartridge cases found at the scene of the shooting and in the appellant's automobile.' In the argument which follows counsel emphasizes the misleading effect of the Prosecutor's oral arguments to the jury. Various courts have held that the suppression of (or failure to disclose) evidence in the possession or control of the prosecution which is favorable to defendant and which might be persuasive to a jury, constitutes such a fundamental unfairness as to invalidate a conviction because violative of due process. Ashley v. State of Texas (CA5), 319 F.2d 80 (withholding of report of doctors that defendant was incompetent); United States ex rel. Thompson v. Dye (CA3), 221 F.2d 763 (withholding testimony tending to show that defendant was in such condition because of alcohol or drugs or both, as to be incapable of entertaining a specific intent or of deliberation); United States ex rel. Almeida v. Baldi (CA3), 195 F.2d 815, 33 A.L.R.2d 1407 (withholding of recovered bullets after murder in a store holdup); Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (withholding part of the true knowledge of a prosecution witness which might have directly affected the penalty); United States ex rel. Meers v. Wilkins (CA2), 326 F.2d 135 (withholding evidence that certain witnesses had been unable to identify defendant); Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (where the evidence withheld had been requested by defendant, but the court expressly adopted the rule stated in the Dye and Baldi cases, supra); and see generally, United States ex rel. Butler v. Maroney (CA3), 319 F.2d 622; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; State v. Belland, 59 Mont. 540, 197 P. 841. Wilkins, supra, rules expressly that a request for the disclosure is not a 'sine qua non to establish a duty on the prosecution's part.' These cases recognize that the principle is applicable where the suppressed evidence bears on the penalty which the jury would impose, even though the defendant, if convicted, would be guilty of first degree murder on the felony-murder doctrine. That particular feature is not in point here because the case was not submitted to the jury on the felony-murder doctrine but on the direct issue as to whether defendant shot and killed Officer Goss. The jury was charged to determine his guilt on that submission, either as first or second degree murder. Hence, any misleading of the jury here would affect the issue of guilt or innocence, if it had any effect at all, and the court ultimately fixed the penalty.

It has also been recognized that the suppression of evidence is exaggerated where the prosecution misleads the jury by some affirmative statement touching the subject. United States ex rel. Thompson v. Dye, supra; there the court said, 221 F.2d loc. cit. 769: 'Here the prosecutor not only kept quiet about the existence of such testimony, but, as Judge McLaughlin points out, even stated in open court that other police officers if called 'would corroborate what already has been testified to.' Thus, the wrong of nondisclosure of obviously significant testimony was compounded by a misleading affirmative statement as to the nature of the available but unused testimony.' The subject is discussed in detail in articles appearing at 60 Columbia Law Review 858, and in 74 Yale Law Journal 136. In the latter it is indicated that the motive of the prosecutor is now not so material an element as is the disadvantage worked on the defendant (Dye-Brady, supra). We do not express entire approval of all conclusions of that author. Missouri has fully recognized that...