State v. Tressler

• Decision Date: 12 November 1973
• Docket Number: No. 57401,No. 2,57401,2
• Citation: 503 S.W.2d 13
• Parties: STATE of Missouri, Respondent, v. Harold TRESSLER, Appellant
• Court: Missouri Supreme Court

Page 13

503 S.W.2d 13

STATE of Missouri, Respondent, v. Harold TRESSLER, Appellant.

No. 57401.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1973, Modified on Court's Own Motion.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 10, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Allen I. Harris, Clayton, for defendant-appellant.

FINCH, Judge.

This is an appeal from a sentence of imprisonment for life following a jury verdict finding defendant guilty of murder in the first degree. We affirm.

Except for a contention by defendant that a conviction may not stand where based on the uncorroborated testimony of an accomplice, defendant does not attack the sufficiency of the evidence to sustain the conviction. Consequently, we need not recite all the evidence but limit ourselves to a statement of only such portions thereof as are necessary to an understanding of our decision.

On the night of June 22, 1970, Wesley Russey, a taxicab driver, was found shot to death in his cab in the City of St. Louis. Several months later, one Virginia Stevens wrote a letter to her mother telling her that she had participated with Harold Tressler in the killing of the taxicab driver and requested that her mother go to the police. She did that and as a result Virginia Stevens was arrested and taken into custody. She made a videotaped statement to the police. The police then arrested defendant.

At the trial, Virginia Stevens testified for the State. She stated that in June 1970, she had been living with defendant in an apartment in which another couple named Barbara Johnson and Butch also lived. On the night of June 22, 1970, she picked up Barbara at work and then the two of them, with Harold and Butch, went to a bar. They decided they were in need of some extra cash, and when they were unable to obtain a loan from other patrons, defendant told Virginia that he would obtain some money. The two of them, followed by Butch and Barbara in another automobile, drove to 14th Street near Cass Bank, where defendant made a telephone call. Shortly, a Checker cab driven by Wesley Russey arrived and defendant and Virginia entered the cab. They drove to 18th and North Market, where they stopped. Virginia testified that she got out of the car, but defendant drew a pistol and requested some money. Defendant then shot Russey. The two of them then went home with Butch and Barbara, stopping along the way to dispose of a watch and ring taken from Mr. Russey.

Defendant and Virginia continued to live together until the latter part of October 1970, at which time they separated. Very shortly, Virginia wrote the letter to her mother which resulted in the arrests of Virginia and defendant.

Defendant's first assignment is that the trial court erred in refusing to sustain his motion to quash the indictment against him. That motion advanced the propositions that (1) the Missouri grand jury system deprives a defendant of his constitutional right of confrontation and his right to presence of counsel at a critical stage, namely, when the charge against him is presented to the grand jury for the purpose of securing an indictment, and (2) the grand jury which returned the indictment against defendant did not have presented to it competent and relevant evidence which would justify said indictment.

In support of the first of the foregoing contentions, defendant argues that since under Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), an accused person has a right to be represented at a preliminary hearing by counsel who can cross-examine and present witnesses, he should have the same rights when bound over for trial by action of a grand jury. His brief recognizes that 'this would greatly upset the procedure in most states, and in the federal system,' but argues that under the line of cases recognizing the right to counsel at all critical stages (he cites cases such as Miranda v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)), a grand jury's proceedings subsequent to arrest must be considered a critical stage of the proceedings against a defendant at which he is entitled to counsel. Therefore, says defendant, denial of counsel before the grand jury is violative of his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States.

Defendant's position is not supported by decisions of the federal courts. Directory Services, Inc. v. United States, 353 F.2d 299 (8th Cir. 1965); United States v. Scully, 225 F.2d 113 (2nd Cir. 1955); United States v. Levinson, 405 F.2d 971 (6th Cir. 1968); Perrone v. United States, 416 F.2d 464 (2nd Cir. 1969). Accordingly, we overrule the contention that absence of counsel before the grand jury violated his federally guaranteed constitutional rights and therefore entitled him to have the indictment quashed.

Defendant's second ground for asking that the indictment be quashed was that the grand jury did not have before it competent and relevant evidence which would justify the indictment. The motion to quash contained no details, but during oral argument before the trial court counsel explained this contention by saying: 'Actually, the only two people who could in any way incriminate my client were Virginia Stevens and Barbara Johnson. Now I have information which I trust, and which I'm telling you now as an officer of this court, that I have had reliable information that those two people * * * did not appear before the grand jury * * *. They had statements from the officers * * * and they had or might've had that videotape film of the confession * * *, but they did not have admissible evidence, in that neither of those two parties personally appeared * * *.'

Counsel argued that if the indictment was based on inadmissible hearsay, it would not stand. To support his motion to quash, defendant had a subpoena duces tecum issued for the minutes of the grand jury proceedings. On motion of the State, the court quashed the subpoena duces tecum. It then overruled defendant's motion to quash the indictment.

We hold that a grand jury may indict on hearsay evidence without violating due process. The Supreme Court of the United States has expressly so held in the case of United States v. Costello, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Costello was indicted for willful evasion of income taxes. He moved to inspect the minutes of the grand jury which returned the indictment, stating in his affidavit that he was firmly convinced that there could have been no legal or competent evidence before the grand jury since he had reported all of his income and paid taxes thereon. The motion was denied. At trial it developed on cross-examination of the government's witnesses that the three investigating officers who testified before the grand jury had no first-hand knowledge of the accounting information as to which they testified. They had been the only witnesses against defendant before the grand jury and hence all the evidence against him for the purpose of securing an indictment was hearsay. After conviction, defendant again sought by motion to have the indictment dismissed as based solely on hearsay evidence, thereby allegedly violating the Fifth Amendment to the Constitution of the United States. The Supreme Court overruled this contention, holding that the Fifth Amendment does not prescribe the kind of evidence on which a grand jury must act, and observing that if one could attack indictments on the basis that all evidence before the grand jury was hearsay, much delay in the disposition of cases would result.

The case of State v. Pierson, 337 Mo. 475, 85 S.W.2d 48, 50 (1935), wherein defendant was convicted of first degree murder committed in the perpetration of arson, is in harmony with the Costello decision. In Pierson, the defendant sought to quash the indictment against him. In support of his motion, he sought to call grand jurors to testify that the only possible evidence the grand jury had that the fire was of incendiary origin consisted of the written statements of alleged co-conspirators who did not personally appear before the grand jury. In discussing that contention, this court said:

"* * * (T)he question is not as to the sufficiency of the evidence before the grand jurors, for of that they are the judges, but it is whether they had before them any evidence at all. If it were otherwise, it would result that the court would become the tribunal to indict as well as the tribunal to try the case."

In the earlier case of State v. Randolph, 139 Mo.App. 314, 123 S.W. 61, 62 (1909), the court stated the rule as to the sufficiency of evidence required to indict as follows:

'* * * The rule is that an indictment returned without the hearing of any testimony may be quashed * * *. While an indictment cannot be returned without the hearing of some testimony, the grand jury are themselves the judge of how much testimony is required, and also as to whether the testimony which they hear is competent.'

Defendant also cites several Missouri statutory provisions governing grand juries and asserts that they indicate a legislative intent that grand juries should indict only after hearing sufficient evidence to enable them to conclude that, based thereon, there is enough evidence to justify bringing a defendant to trial. We have analyzed these sections and we find nothing therein which would require a rule that a grand jury may not indict based on hearsay evidence.

We recognize that some states, referred to in defendant's brief, have held that an indictment based on hearsay is invalid, but the predominant view is otherwise. See Annotation: Grand Jury--Incompetent Hearsay--Effect, 37 A.L.R. 3rd 612, 616. We adhere to the rule that an indictment may be based on hearsay. The defendant has...