State v. Turley, 34965

• Citation: 518 S.W.2d 207
• Decision Date: 06 November 1974
• Docket Number: No. 34965,34965
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ernest TURLEY, Defendant-Appellant. . Louis District, Division One
• Court: Court of Appeal of Missouri (US)

Page 207

518 S.W.2d 207

STATE of Missouri, Plaintiff-Respondent, v. Ernest TURLEY, Defendant-Appellant.

No. 34965.

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

Nov. 6, 1974.

Motion to Transfer to Supreme Court Denied Dec. 6, 1975.

Application to Transfer Denied Feb. 10, 1975.

Fenlon & Fenlon, Latney Barnes, Mexico, A. H. Juergensmeyer, Warrenton, Thomas E. Wack, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Ellen S. Roper, David Robards, Asst. Attys. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, for plaintiff-respondent.

DOWD, Chief Judge.

Defendant was convicted of robbery in the first degree under Section 560.120, RSMo 1969, V.A.M.S. His punishment under the Second Offender Act (§ 556.280, RSMo 1969) was assessed at twenty years imprisonment in the custody of the State Department of Corrections. We affirm.

Shortly after noon on June 11, 1970, the Laddonia State Bank was robbed of approximately $13,000 by two armed men wearing stocking masks. One of the robbers herded the employees behind the counter and forced an employee to fill a sack with money from the cash drawers.

The second robber remained in the bank lobby with gun drawn. The two bandits made a successful getaway. A few hours later police located a burned-out light green 1959 Cadillac about a mile from the bank.

F.B.I. agents, meanwhile, arrived at the bank and showed the four bank employees several photographs of suspects. Three employees stated a photograph of defendant strongly resembled the second robber.

F.B.I. agents arrested defendant in St. Louis on June 24, 1970. No gun or stolen money was found in defendant's possession. On June 26, 1970, two bank employees identified defendant in a St. Louis police lineup. Also identifying defendant at this lineup were two other Laddonia residents. Charles Crow had noticed a green 1959 Cadillac in Laddonia the day before the robbery; he remembered defendant as the driver of the Cadillac. The evening of the robbery Crow identified the burned-out car as the Cadillac he had seen in town the previous day; that same evening he identified defendant from a photograph as the driver of the Cadillac.

The other Laddonia resident present at the lineup was Wanda Garnett, who was working at a grocery store near the bank the day of the robbery. After the robbery she saw defendant's photograph in a local newspaper and recognized him as a man who had purchased cigarettes from her a couple hours before the robbery.

On July 1, 1970, a federal grand jury charged defendant with robbing the Laddonia State Bank, in violation of 18 U.S.C. § 2113(a) and (d). Defendant was acquitted of the federal charge in November 1970, after a trial in which the four bank employees positively identified the defendant as one of the bank robbers. There was other incriminating identification testimony against defendant by Mr. Crow and Ms. Garnett.

On January 4, 1971, the Prosecuting Attorney of Audrain County filed an information charging defendant with robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120 and 560.135, RSMo 1969. At the subsequent state trial the same six witnesses again identified the defendant. As said the jury found the defendant guilty of robbery in the first degree and he appeals.

Defendant's first contention on appeal is that his conviction in state court offends the Constitutions of both Missouri and the United States. We pose the question: Can a defendant who is acquitted of a federal charge of bank robbery be subsequently tried and convicted in state court for robbery? The answer is yes.

In 1959, the United States Supreme Court handed down two cases dealing with successive state and federal prosecutions. One was Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), which upheld a federal conviction following a state court acquittal based on substantially the same facts. The other case was Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), with basically the same facts as the case before us. Bartkus involved the robbery of a federally insured savings and loan association. Defendant had been acquitted in the federal courts, but convicted in the state court under the Illinois robbery statute. In an opinion by Justice Frankfurter, the Supreme Court held the conviction valid.

In analyzing the history of double jeopardy, the court made note of the early case of Fox v. Ohio, 5 How. 410, 12 L.Ed. 213 (1847), which held that both the federal government and the states have the power to impose criminal sanctions on conduct that offends the laws of each. The court also noted that one of the cases decided prior to Fox v. Ohio was the Missouri case of Mattison v. State, 3 Mo. 421 (1830), which held no plea in bar would prohibit the second prosecution in successive state and federal prosecutions.

In discussing the history since Fox v. Ohio, Justice Frankfurter in Bartkus noted that of the 'twenty-eight States which have considered the validity of successive state and federal prosecutions as against a challenge of violation of either a state constitutional double-jeopardy provision or a common-law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution was or would be barred.' 359 U.S. at 134, 135, 79 S.Ct. at 684. Among the cases cited by the court under this point was the Missouri case of Ex parte January, 295 Mo. 653, 246 S.W. 241 (Mo. banc 1922). That case held that both the federal government and Missouri have concurrent jurisdiction to punish conduct which offends the laws of each.

In further explanation of its holding, the court in Bartkus discussed the principle of dual sovereignty: 'Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both.' 359 U.S. at 131, 79 S.Ct. at 682.

Defendant contends that the rule in Bartkus is not the law. He argues that part of the holding in Bartkus was that the Fifth Amendment did not apply to the states and that this position has now been overruled. Defendant relies on Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Benton involved successive state prosecutions. Benton held that the double jeopardy prohibition of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton did not overturn the dual sovereignty principle as reaffirmed in Bartkus and subsequently followed in other federal cases.

The question defendant specifically poses is does Benton overrule Bartkus v. Illinois? The answer to that question is that Bartkus is still the law today. Defendant's same argument was raised and rejected in the case of Martin v. Rose, 481 F.2d 658 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973), wherein the court held: 'Appellant urges that Bartkus no longer has continuing validity, particularly in view of . . . such cases as Benton v. Maryland, . . . We do not, however, read Benton as rejecting the result of Bartkus.' 481 F.2D AT 659. ¹ The court in Martin further stated: 'we find that the Federal courts still recognize and affirm the continuing validity of Bartkus.', ² 481 F.2d 660, citing as an example, our own Eighth Circuit in United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), where, after upholding the validity of Bartkus and Abbate, held that the defense of Double Jeopardy does not bar successive prosecutions where there is no identity of sovereigns. ³

Our conclusion: Bartkus has continuing validity; defendant's conviction is not unconstitutional.

Defendant next contends that the trial court erred in allowing certain statements to be made by the prosecuting attorney in his final argument. Defendant made no objection at the time the statements were made. The remarks complained of are as follows:

'Now, under our rules the jurors may take photographs into the jury room under certain conditions. I would be willing and agree that you may take these photographs into the jury room look at them yourselves; if the defense stands up and says they do not agree that you can take the photographs and look at them yourselves, then I feel sure that Judge Adams would permit you, if you requested the photographs, to do that. Nobody is going to force any photographs on you, but on behalf of the State I ask you to request these photographs and look at them . . .'

During its deliberations the jury asked to have the photographs sent to the jury room. At that time the trial court, out of the hearing of the jury, asked if defendant had any objection to sending the photographs to the jury. The photographs had previously been introduced into evidence and had been examined by the jury. ⁴ Defendant answered that the earlier comments by the prosecuting attorney constituted an improper invitation to the jury. Defendant's attorney was of the opinion that the statement inferred that the jury could have the photographs unless the defendant objected. Defendant moved for a mistrial, which was denied. Thereupon the court sent all the photographs to the jury.

We note initially that defendant made no objection to the prosecutor's statements at the time they were made. Objections to arguments by the State are required to be made at the time the objectionable statement is made or nothing is preserved for review. State v. Williams, 419 S.W.2d 49, 53 (Mo.1967); State v. Martin, 484 S.W.2d 179, 180 (Mo.1972).

However, even if the point had been preserved for review it is without merit. Furthermore, the granting or withholding of a new trial for improper argument is a matter for trial court's discretion. State v. Williams, supra, 419 S.W.2d at 50. An appellate court will not interfere with a ruling by the trial court unless...