State v. White

• Citation: 621 S.W.2d 287
• Decision Date: 08 September 1981
• Docket Number: No. 62191,No. 1,62191,1
• Parties: STATE of Missouri, Respondent, v. Charles William WHITE, Appellant
• Court: United States State Supreme Court of Missouri

Page 287

621 S.W.2d 287

STATE of Missouri, Respondent, v. Charles William WHITE, Appellant.

No. 62191.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1981.

Rehearing Denied Oct. 13, 1981.

Donald O. Tripp, Liberty, for appellant.

Henry Herschel and Steven H. Akre, Asst. Attys. Gen., Jefferson City, for respondent.

GUNN, Special Judge.

Defendant was convicted of capital murder, § 559.005, RSMo Supp. 1975. His sentence was life imprisonment without eligibility for probation or parole for fifty years, § 559.011, RSMo Supp.1975. His points of appeal are manifold, but we find none has merit and affirm the judgment.

The defendant's targeted victim for murder was Roxanne Newberry, wife of Floyd B. Newberry (Floyd Jr.). The quid pro quo was $60,000 to be paid to defendant and Floyd Jr.'s father, Floyd W. C. Newberry (Floyd Sr.), from substantial insurance proceeds on Roxanne's life. The state's primary witness against defendant was Floyd Sr., although there was additional evidence presented to support the conviction.

In February, 1976, Floyd Jr. approached his father with the general scheme to kill Roxanne for the insurance money. Floyd Sr. in turn contacted defendant who was an employee in his upholstery business. Apparently defendant was not reluctant to be the perpetrator of the murder. On April 22, 1976 defendant made his first, unsuccessful effort at killing Roxanne. As Roxanne left her place of employment defendant shot her in the neck with a .22 caliber pistol and beat her with a lead pipe to ensure her demise. Amazingly, Roxanne survived the first brutal attack. She traveled to Florida for a recovery period, but plans for her death continued with defendant and a companion, Rodney Strickland, going to Florida intending to fulfill their deadly purpose. But defendant's bibulous habit thwarted him in his quest for Roxanne's death he was in a drunken stupor most of the time while there. Separate trips to Florida were made by both Newberrys and again by Floyd Sr. and Strickland, but though life-threatened, Roxanne was left undisturbed.

The defendant and the Newberrys continued their plans for Roxanne's death. On June 18, 1976, after Roxanne had returned to Missouri, Floyd Sr. drove defendant to a schoolyard behind Floyd Jr.'s home. Floyd Jr. unlocked a basement door to his home to admit defendant, who entered the house, went to Roxanne's bedroom, bound and sexually ravished her and then killed her by cutting her throat from ear to ear and the back of her neck, nearly severing her head from her body.

The first issues in defendant's appeal are whether twelve jurors must deliberate to return a valid indictment and whether the grand jury selection process was discriminatory. On December 19, 1978, the grand jury of Clay County met, deliberated and returned an indictment against defendant on the charge of capital murder. When impaneled, the grand jury consisted of twelve members plus one alternate. However, only eleven members were present to deliberate, with all eleven voting in favor of the indictment. ¹

Under these facts we find no deficiency or flaw in the number of grand jurors returning the indictment against the defendant. Mo.Const. Art. I, § 16 provides "(t)hat a grand jury shall consist of twelve citizens, any nine of whom concurring may find an indictment or a true bill...." This constitutional provision has been codified in §§ 540.010 and 540.250, RSMo 1978 with the latter section providing that "(n)o indictment can be found without the concurrence of at least nine jurors...."

Long ago, in State v. Connors, 233 Mo. 348, 135 S.W. 444 (1911), in construing a forerunner statute with language identical to § 540.250, RSMo 1978, the court held, quoting from 17 Am. & Eng.Ency.Law, p. 1281:

If a sufficient number of grand jurors has been impaneled, the absence, death, excusal, or discharge of one or more jurors does not affect the organization of the grand jury, or disable it from investigating criminal charges and finding indictments, providing the minimum number which is required to concur in the finding of an indictment remains and does so concur.

135 S.W. at 445. The foregoing rule is still followed, and so long as at least nine grand jurors deliberate and vote for the indictment, it is valid. The holding is consonant with decisions of other jurisdictions finding that the numerical requirement of twelve pertains only to the impaneling of the grand jury and that a lesser number may deliberate and return an indictment. Lightfoot v. State, 64 So.2d 261, 265 (Fla.banc 1953); State v. Birbiglia, 149 La. 4, 88 So. 533, 541 (1920).

Neither is there merit to defendant's contention that the grand jury selection process was discriminatory in that it did not consist of a fair cross section of the community. The decisive issue in this regard is whether discrimination actually occurred in the selection of the grand jury, with the burden resting on defendant to establish that actual discrimination exists. State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, 952 (banc 1946); State v. Duncan, 616 S.W.2d 87, 88 (Mo.App.1981); State v. Johnson, 539 S.W.2d 493, 511 (Mo.App.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). The evidence on which defendant bases his charge is that the jurors were drawn from the grand jury wheel only after their names had been randomly selected from a group of persons of "reputable, honest character." There is no evidence that this particular method of choosing grand jurors deprived defendant of jurors selected from a fair cross section of the community. State v. Cuckovich, 485 S.W.2d 16, 21 (Mo.banc 1972), concerning a grand jury "composed of people outstanding in civic affairs," is on point in this regard. Defendant's first point dealing with the grand jury process and proceedings is without merit.

The murder weapon was identified as a knife that had been confiscated from defendant by federal authorities in connection with an earlier counterfeiting investigation against him. After his release on the counterfeiting charge, defendant's request for the return of his knife was refused. The knife was ultimately delivered by federal authorities to the Clay County sheriff's office in connection with Roxanne's murder. Defendant's challenge against the use of the knife as evidence in this trial is that his property had been taken from him without just compensation. Defendant argues that as the exclusionary rule applies to a fourth amendment violation, so, too, should it apply to a fifth amendment infraction. Defendant cites us no authority for such a proposition, and an examination of the circumstances in this case reveals that defendant's contention is destitute of merit.

Defendant does not assert that the federal authorities acquired the knife by illegal means. ² Nor does he assert that there is anything illegal about the Clay County sheriff's office possessing the knife. Through Newberry, police were aware of defendant's involvement in the murder, which had been committed with a knife or other sharp instrument. Evidence legally obtained by one police agency may be made available to other such agencies even for a use different from that for which it was originally taken. United States v. Gargotto, 476 F.2d 1009, 1014 (6th Cir.1973); Gullet v. United States, 387 F.2d 307, 308 (8th Cir.1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968). ³ Defendant's right to a restoration of impounded property does not accrue until after the property has ceased to be necessary for the purposes of justice. 79 C.J.S. Search and Seizure § 93 (1952). It matters not that defendant went uncompensated for the murder weapon, as his allegation of unlawful appropriation relates to a totally collateral matter. If defendant's property were taken from him unlawfully, his remedy lies in a proper motion filed against federal authorities pursuant to Federal Rule of Criminal Procedure 41(e). Mayo v. United States, 413 F.Supp. 160, 161 (E.D.Ill.1976). Also, see State v. Richards, 334 Mo. 485, 67 S.W.2d 58, 61 (1933); 68 Am.Jur.2d, Searches and Seizures, §§ 117, 118 (1973), regarding return of contraband.

Defendant's next allegation of error arises in connection with hair samples taken from him pursuant to an order of the United States District Court and admitted in evidence. No force was asserted in removing the hair. A few were pulled from defendant's head and body without any resistance. Defendant pulled and gave samples of his own pubic hair. Defendant argues that the procurement and use of hair samples in evidence involved the use of illegal force, compelled him to be a witness against himself and was an unreasonable search and seizure. Furthermore, he maintains that the district court was without authority to order their taking. Defendant relies primarily on Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), a case in which a suspect's stomach was pumped to induce vomiting and produce ingested evidence. Such use of force "shock(ed) the conscience," resulting in a fourteenth amendment violation. 342 U.S. at 172, 72 S.Ct. at 209. But the taking of hair samples is substantially different from the situation in Rochin. Here, the taking and use did not violate any constitutional safeguards. The securing of such samples is only a slight personal intrusion and does not infract due process rights. Wolfe v. State, 613 S.W.2d 892, 894 (Mo.App.1981). Accord, United States v. Jackson, 448 F.2d 963, 971 (9th Cir.1971), cert. denied, 405 U.S. 924, 92 S.Ct. 970, 30 L.Ed.2d 796 (1972); United States v. D'Amico, 408 F.2d 331, 333 (2d Cir.1969); Grimes v. United States, 405 F.2d 477, 479 (5th Cir.1968).

Nor does the hair removal constitute an unlawful search and seizure. The fourth amendment provides no absolute barrier to the state's making a minor intrusion into an individual's body. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), so holds,...