State v. Valentine

• Decision Date: 19 October 1979
• Docket Number: No. 61077,61077
• Citation: 587 S.W.2d 859
• Parties: STATE of Missouri, Respondent, v. Donald VALENTINE, Appellant.
• Court: Missouri Supreme Court

Page 859

587 S.W.2d 859

STATE of Missouri, Respondent, v. Donald VALENTINE, Appellant.

No. 61077.

Supreme Court of Missouri, En Banc.

Oct. 19, 1979.

James F. Booth, Clayton, for appellant.

SEILER, Judge.

This is an appeal from a conviction by jury of robbery in the first degree by means of a dangerous and deadly weapon. This case was transferred to the Court after opinion by the Court of Appeals, Eastern District, upon appellant's motion because of the general interest and importance of the questions presented under Rule 83.03. We will treat this case as though here on original appeal. Mo.Const. art. V. § 10.

The alleged robbery occurred on February 27, 1976, at approximately 8:00 p. m. at a drive-in restaurant in St. Louis in the 4300 block on Dr. King Drive. The assistant manager of the restaurant testified that he observed a man with a gun confronting a customer. The gunman then pointed the gun in the direction of the assistant manager, a Mr. Thurman, while another man, whom the assistant manager later identified as appellant, ordered him to "give me all the money." The assistant manager allegedly handed over about $300 from the cash drawers and the two men left the restaurant. An on-duty police officer observed the two men leaving the restaurant and noticed the gun in the possession of one of them. The officer ordered this man, Louis Bateman, to drop the gun and proceeded to arrest him. The other man, allegedly appellant, fled on foot. An arrest order was put out for appellant and a 1969 maroon Continental. About two hours later, appellant, while driving such an automobile, was arrested at Hamilton and Delmar, St. Louis. On appeal, appellant submitted five grounds of alleged error on the part of the trial court, including a charge that the court erred in permitting the state to interject an inference of hearsay evidence into trial and a charge that the court erred in permitting the state to create an adverse inference in the minds of the jurors in the failure of the defense to call an allegedly "equally available" witness, who had been endorsed by the prosecution as a potential state witness in appellant's first trial. The court of appeals affirmed the judgment of the trial court and we granted the motion for transfer on the basis of these two questions.

Appellant alleges that the trial court erred in permitting the state to offer the following testimony during the direct examination of Sgt. McCrary, the police officer who apprehended Louis Bateman, the man with the gun, at the scene of the robbery:

"Q. Now, the man that you took into custody on the parking lot, who was he, Officer?

"A. His name was Louis Bateman.

"Q. Did you strike that if I may Sgt. McCrary, were you the only officer at the scene that night or did other officers come?

"A. Other officers subsequently arrived at that location.

"Q. Specifically were these officers from your unit?

"A. Yes, sir.

"Q. Do you recall who they were?

"A. Det. Charles James, Tommy Franklin, and Derrick Askew.

"Q. And, did they assist you with the investigation that evening?

"A. Yes, sir, they did.

"Q. Now, did you continue your investigation?

"A. Yes, I did.

"Q. And, specifically, Officer, How did you go along or how did you go about continuing your investigation ?

"A. We placed an arrest order After an investigation we placed an arrest order out for Donald Valentine as being the second subject." (emphasis added).

Appellant's counsel objected to the above testimony but his objection was overruled. Thereafter, the court called a temporary recess and proceedings continued in the judge's chambers outside the hearing of the jury. During the judge's discussion with counsel, it was revealed that this was the second trial of this case, the verdict of the first case having been set aside because of the admission of improper hearsay evidence. In the earlier trial, the police officer testified to the effect that after police had questioned the purported accomplice of appellant, they then went out and arrested appellant.

After the in-chambers discussion, proceedings were resumed in the courtroom within the hearing of the jury:

"Q. (By Mr. Poehling) Officer, I believe before the recess we finished with the question that you indicated in your testimony you had placed an arrest order out for Donald Valentine and a 1969 maroon Continental. Is that a correct statement of your testimony?

"A. A 1969 black over maroon Continental.

"Q. Black over maroon. All right. Thank you, Officer. To your knowledge were you present when the defendant was arrested, Officer?

"A. No, I was not.

"Q. When was the next time you saw the defendant?

"A. When he was brought into our office, to the TACT office.

"Q. Do you recall approximately when that was, Officer?

"A. I couldn't be sure of the exact time. I would imagine it was around maybe 10:00 or eleven o'clock, possibly a little later. I couldn't be sure of the exact time.

"Q. Let me ask you this, Officer. Are we talking about a matter of days, a matter of hours ?

"A. It was a matter of hours.

"Q. A matter of hours. All right . . . ." (emphasis added).

Appellant submits that, in light of the prior trial verdict having been set aside for the same alleged error, the prosecution purposely injected an inference that Bateman had told the officers that appellant was the accomplice, and such an inference was hearsay evidence. Appellant points to one of the questions which the jury addressed to the judge only thirty-five minutes after the jury retired to deliberate, as evidence that the inference was not lost upon the jury:

"3. Why was Valetine (sic) wanted for this crime? Was it becaue (sic) of the description given to police by Mr. Thurmon (sic) Or was it from a statement from Bateman " (emphasis added).

It is hornbook law that a witness may not testify to facts if those facts are based on hearsay. It is no less a violation of the hearsay rule to set up a set of circumstances by the testimony of a witness which invites the inference of hearsay. State v. Chernick, 280 S.W.2d 56 (Mo.1955); State v. Johnson, 538 S.W.2d 73 (Mo.App.1976). In State v. Edwards, 435 S.W.2d 1, 6 (Mo.1968), this Court stated the general rule:

"(T)estimony which, by clear inference, showed that an alleged accomplice had implicated the defendant in the offense involved, was just as much hearsay and objectionable as the implicating statement itself would have been. . . . (T) he extrajudicial statement of a third person (that) was attempted to be used as evidence of the guilt of the accused, (is) a clear-cut hearsay rule violation."

In Chernick, the circuit attorney testified that after he had questioned the alleged accomplice, "we put an arrest order out for Glenn Chernick." 280 S.W.2d at 59. Even though the alleged accomplice did not take the witness stand, the circuit attorney's testimony was found to have created "a substantial basis for the inference that (the alleged accomplice) had implicated defendant as a participant in the robbery". The Court then stated, "Now the same considerations which would have invoked the rule excluding hearsay evidence of the actual assertions of Scholl would forbid that any inference against defendant should be drawn from the conduct of the Circuit Attorney actuated by what Scholl may have said." 280 S.W.2d at 59.

In the case at bar, the state argues that such an inference was not created. The state submits that no where did the officer state that After questioning Bateman, an arrest order was issued. It is the state's argument that because the jury had no way of knowing what in the investigation led to the issuance of the arrest order, no hearsay inference was created. The jury's inquiry during their deliberations belies this contention.

The prosecution presented only one witness, Mr. Thurman, the restaurant assistant manager, who could identify appellant as being at the scene of the robbery, even though there were an estimated ten customers who could have witnessed what occurred. No other evidence was offered by the state connecting appellant with the crime. Appellant, on the other hand, presented two alibi witnesses who testified that appellant was at his apartment before during, and for at least an hour after, the robbery occurred. One person who could be expected to know who the other participant was would be Louis Bateman, the man who was arrested by Sgt. McCrary, at the scene. Louis Bateman was called as a witness for the prosecution, even though the state was informed by Bateman's counsel that he would refuse to testify. Bateman took the witness stand and declined to answer questions posed by the prosecution on the ground that he might be forced to incriminate himself. After Bateman refused to testify, what he might have said after he was apprehended and during the police investigation at the robbery scene would certainly be important to the jury. Officer McCrary testified that immediately after the alleged robbery, he approached two men leaving the restaurant. He apprehended one, but the other escaped On foot. He did not testify that he knew that the fleeing accomplice was appellant. Indeed, Officer McCrary did not identify appellant at the trial as having been the fleeing accomplice. He merely testified that three other officers joined him at the scene of the robbery and that after their investigation they put out an arrest order for appellant And his automobile, about which there is no other testimony. The prosecution then stressed the point that all within as little as two hours time, the officers completed an investigation at the scene of the robbery, issued an arrest order for appellant and his automobile, found appellant driving the automobile, and transported appellant to the police station. It is clear that the state has set up a set of circumstances that invites the inference of hearsay evidence, namely that Bateman told police appellant's name and described appellant's automobile.

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