State v. Thompson, 61790
| Decision Date | 15 January 1981 |
| Docket Number | No. 61790,No. 1,61790,1 |
| Citation | 610 S.W.2d 629 |
| Parties | STATE of Missouri, Respondent, v. Otis THOMPSON, Jr., Appellant |
| Court | Missouri Supreme Court |
Bertram Cooper, Alisse C. Camazine, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Mark Comley, Asst. Atty. Gen., Jefferson City, for respondent.
WELBORN, Commissioner.
Otis Thompson, Jr., was charged with murder in the first degree (felony murder), armed robbery and armed criminal action, arising out of an occurrence in St. Louis on January 13, 1979. On a jury trial, he was found not guilty of murder, and guilty of robbery and armed criminal action. The jury fixed punishment at 15 years' imprisonment for robbery and three years for armed criminal action. The trial court found the defendant a "dangerous offender" and sentenced him to life imprisonment for robbery and 10 years for armed criminal action. §§ 557.036 3. (2)(b), 558.016, RSMo 1978. This appeal followed.
At around 7:30 P.M., January 13, 1979, a man entered Cox's Cleaners, 4932 Union, St. Louis, and asked the attendant in charge, Donald Dickerson, for change for a dollar. Dickerson told the man he would have to get change from the change machine. The man went to the machine and then turned to Dickerson, pulled a weapon which he pointed at Dickerson and said: "Hey, brother, this is a stick-up, get down to the floor." Dickerson did as he was ordered. Another armed man entered the premises and directed the 10 or 12 customers to lie on the floor. The second man stepped over Dickerson lying on the floor. Dickerson saw only the shoes the man was wearing. He described them as "long green shoes."
Two customers who saw the second man enter saw him pulling a mask over his face as he entered the shop. These customers, at defendant's trial, identified Otis Thompson, Jr. as the second man.
Dickerson's testimony is not too clear, but apparently the second man went to the rear of the shop where the cash register was and money was kept and the first remained near Dickerson. For no apparent reason, he fired two shots into the floor, near Dickerson's head.
John Sonny Cox, a brother of the proprietor of the cleaning shop, lived upstairs over the shop. He heard the shots and went down the stairs to investigate. When he reached the foot of the stairs, shots were fired, apparently by a third participant in the robbery who was outside the shop. Cox was struck five times and eventually died from his wounds.
After the shots had been fired outside, someone came to the door and hollered: "Hey, Otis, man, let's go." The robbers took $70 from the cash register, $80 from Dickerson, a shotgun, and left.
Police were called to the scene. An evidence technician discovered a fingerprint on a candy box which was kept near the cash register. The print was identified as having been made by appellant. He was arrested on January 15. He denied participating in the Cox robbery. Two customers identified him at line-ups and he was indicted for murder, robbery and armed criminal action.
At his trial, the defendant offered alibi testimony of his brother, the brother's girl friend and defendant's girl friend, all of whom testified that they were with the defendant elsewhere at the time of the crime.
On this appeal the first assignment of error is based upon the claim that the prosecution intentionally withheld material evidence favorable to the defendant. This claim arises from the following circumstances, developed at a post-trial hearing on the defendant's motion for new trial because of prosecutorial misconduct.
On February 6, 1979, Billy Cole was arrested by St. Louis police on suspicion that he was the man who had been committing street robberies, using a sawed-off shotgun. At the time of his arrest, Cole had a sawed-off shotgun under his coat. He was identified by one of the robbery victims. The arresting officer questioned Cole about where he had obtained the gun. Cole told him that he had found it in a vacant service station lot at 4915 Union Avenue, across the street from Cox Cleaners.
Sergeant Murphy of the St. Louis Police Department, assigned as investigator for the Circuit Attorney's office, was told by Sheryl McGrew, a stepdaughter of the deceased John Cox, that she had heard from some girl friends that Cole might have had the shotgun taken from the laundromat. Murphy examined the weapon taken from Cole and determined that it was a High Standard whereas the police report on the Cox case described the gun taken from the laundromat as a Winchester. Murphy called William Cox, the laundromat proprietor, and was told by him that he had seen the gun taken from Cole and could not say that it was the one taken from the laundromat. Cox testified that he had examined the weapon but would not identify it.
Officer Brogan who worked on the Cox case testified that he interrogated Cole shortly after his arrest and that Cole denied that he had told the arresting officer that he found the gun at 4915 Union. He also testified that later, after he had talked to Officer Murphy, he saw Cole on the street and asked him if he would talk to Murphy about any connection between the gun and the Cox case. According to Brogan, Cole became angry and said:
The thrust of the appellant's complaint is that the state deliberately concealed from the defense all of the facts relating to Cole's possession of the shotgun. Appellant points to negative answers to his requests for disclosure, as follows:
Appellant also points to a recorded interview of Sergeant Murphy, made two or three weeks prior to the trial in which Murphy replied negatively to the question of whether or not he had information indicating that the gun stolen from Cox had been used in other crimes. He did not name Cole when he was asked whether there were other suspects in the Cox case, although he admitted that at one time he considered Cole a suspect because of the possibility that the weapon Cole had came from Cox's.
According to defense counsel, he first learned of Cole after the trial when Cole's social worker at the workhouse informed counsel that Cole was an eyewitness to the Cox robbery. Defense counsel obtained a statement from Cole and Cole testified at the post-trial hearing on defendant's motion.
Cole's testimony was that he was across the street from the laundromat at the time of the robbery, that he saw a man come out of a doorway and he saw another man standing near the doorway pull a gun and fire five shots at the first man. Cole identified the person who fired the shots as a man known to him. That man then called inside the laundromat and ran across the street. Two men came out of the laundromat and ran across the street. One was carrying a shotgun which he dropped. Cole could not identify these two men. He did say that appellant, whom he knew, was not one of them. The next day Cole returned to the area and found the shotgun and took it. He later cut it off and it was taken from him by the police when he was arrested on February 6.
Although appellant points to his requests for information, his complaint here is not of failure on the part of the prosecutor to comply with the requirements of Rule 25.03. Rather, his complaint is upon constitutional grounds, springing primarily from Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady laid down the rule " * * * that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196.
This case involves a refinement of Brady, enunciated in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Agurs delineates three situations in which the Brady rule applies: First: The use of perjured testimony, known to the prosecution. Second: Failure to produce favorable evidence in response to a pretrial request for specific evidence, the situation of Brady. Third: The case in which only a general request for "Brady material" has been made. In Agurs, there had been no request for information and the court concluded " * * * that there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases, like the one we must now decide, in which there has been no request at all." 427 U.S. at 107, 96 S.Ct. at 2399.
The test applied by Agurs in the third situation is ...
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