State v. Williams, 52484
| Decision Date | 09 October 1967 |
| Docket Number | No. 2,No. 52484,52484,2 |
| Citation | 419 S.W.2d 49 |
| Parties | STATE of Missouri, Respondent, v. Wendell WILLIAMS, Appellant |
| Court | Missouri Supreme Court |
J. Whitfield Moody, and J. Arnot Hill, Kansas City, for appellant.
Norman H. Anderson, Atty. Gen., Jefferson City., Charles C. Hatley Asst. Atty. Gen., New Madrid, for respondent.
STOCKARD, Commissioner.
Wendell Williams was found guilty by a jury of assault with a deadly weapon with intent to kill and sentenced to imprisonment for a term of twenty-five years. He has appealed from the ensuing judgment. At the trial and on this appeal defendant was represented by representatives of the Legal Aid and Defender Society of Greater Kansas City.
Defendant does not specifically attack the sufficiency of the evidence. The jury reasonably could find the occurrence of the following events. About 11:45 o'clock of the evening of November 13, 1965, Ruby Peltier was waiting at 37th Street and Prospect Avenue for a bus. A Plymouth automobile stopped, and defendant pointed a gun at her and told her to get into the automobile. She did so and the automobile moved on . Defendant then told Ruby he needed a lot of money, and she told him that she had only $35.00. Ruby noticed a police car was following and she began pounding on the rear window to attract attention, and when she did this defendant shot her twice in the stomach. The officer in the police car knew defendant and recognized him as the man in the rear seat of the automobile in front of him. The officer turned on his red light and siren and pursued the Plymouth. It collided with a utility pole and defendant jumped from the automobile, landing in 'a prone position, spread-eagle, on the street,' and after leaving his hat he ran away. The driver of the automobile, Richard Lee Warren, was arrested, and defendant was arrested about four hours later at his home. A few days later, when in jail, defendant obtained medical attention for an injured knee.
Defendant testified that about 8:00 o'clock that evening he had loaned his automobile to Richard Lee Warren. He admitted that the hat found at the scene was his, but he said he had left it in the automobile when he gave it to Warren. He also testified that at 11:00 o'clock that evening he met his wife and they ate at Mim's restaurant. He left the restaurant about one o'clock and went home. His sister was there watching television, and shortly thereafter he went to a service station and bought some cigarettes and then returned home. Defendant's witnesses supported his alibi, but with some rather material inconsistencies in their testimony.
Defendant's brief contains nine points, but in his reply brief he states that 'after re-examination' of his and the State's briefs he 'abandons Points IV, V, VI, and VIII.'
Defendant's first point is that 'it was error for the State to argue that if the defendant were released a repetition of the offense would transpire.' The record shows that in the closing argument the prosecuting attorney said this: Counsel for defendant objected and asked that the jury be instructed to disregard the statement. The court sustained the objection and instructed the jury as requested. Counsel then asked that the jury be discharged, and the trial court denied that request. The assignment of error in the motion for new trial, and the point in defendant's brief, does not present as error the refusal of the trial court to discharge the jury. However, the argument is to that effect.
Defendant cites State v. Groves, Mo., 295 S.W.2d 169; State v. Renfro, Mo., 408 S.W.2d 57; and State v. Satterfield, Mo., 336 S.W.2d 509. In the Groves case an objection to argument and a request that the jury be instructed to disregard the argument were both overruled. That case does not rule the situation we have here where the objection was sustained and the jury was instructed to disregard the argument. In the Renfro case the court impliedly sustained the objection to argument somewhat similar to that in this case, and it was stated on appeal that no further relief was requested. However, noting that there was but 'an instance of a single breach' where the trial court's ruling served to divert the speaker, it was stated that 'we do not believe the argument complained of was prejudicially erroneous.' The Satterfield case pertains to argument alleged to have been based on excluded evidence. It does not rule the issue of defendant's contention here.
The control of arguments of counsel is largely within the discretion of the trial court, State v. Benjamin, Mo., 309 S.W.2d 602, 606, and the granting or refusal of a mistrial for improper argument lies largely within the discretion of the trial court. State v. King, Mo., 334 S.W.2d 34, 40; State v. Hardy, 365 Mo. 107, 276 S.W.2d 90, 95. There was no abuse of discretion in this case in view of the corrective action taken by the trial court.
Defendant's next point is that it was error to permit the introduction of testimony of an oral statement by him to the police because it was 'not proved to be voluntary.' As subsequently demonstrated, the record disproves this contention.
The statement of defendant referred to was made to Officer Swan after his arrest. The statement was not a confession of the offense charged nor was it a declaration against interest. It was offered in rebuttal by the State apparently on the ground that it conflicted with defendant's testimony at trial as to where he was at the time of the commission of the robbery. Assuming, but not deciding, that the rule announced in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.E.2d 908, requires a preliminary determination by the trial court that the above statement of defendant was voluntarily made, that requirement was met. After Officer Swan testified that he had talked to defendant, the trial court conducted a hearing out of the presence of the jury on the issue of the voluntariness of defendant's oral statement. At this hearing the police officer testified that before defendant made the statement he had advised defendant that he did not have to make a statement, that if he did it could be used against him in court, and that he could call a lawyer. In this hearing out of the presence of the jury the defendant then testified, and we shall set forth his entire testimony.
The trial court specifically found that the statement of defendant to Officer Swan was voluntarily made. On this appeal defendant presents nothing which indicates that the finding was wrong, and the record clearly establishes that the finding was correct.
Defendant's third point is that it was error 'to permit testimony of his previous arrest unrelated to the offense for which he was being tried.' The police officer who arrested defendant testified about the arrest and was cross-examined extensively. On redirect examination he was asked 'How did you happen to know where he lived?' The officer answered as follows: 'I arrested--he had been arrested once before at 1604 East 11th.' Defense counsel objected to 'the question and response' and asked that the answer 'be stricken' and that the jury be discharged. The trial court sustained the objection and instructed the jury to disregard the answer, but it denied the request to discharge the jury. As was true in connection with defendant's first point, the assignment of error in the motion for new trial and the point in defendant's brief pertaining to this incident does not present as error the refusal of the trial court to discharge the jury, but the argument includes this contention.
Defendant cites various cases which hold that as a general rule separate and distinct crimes by the defendant cannot be shown, with certain exceptions, and proof of conduct not related to the offense charged which subjects defendant to ill repute cannot be shown. See State v. Anderson, Mo., 384 S.W.2d 591; State v. Slaten, Mo., 252 S.W.2d 330. In view of the cross-examination of the arresting officer, the reason the officer knew where defendant lived was not totally irrelevant. However, assuming that even under these circumstances the reference to the previous arrest was improper, the trial court did not, as asserted in the point, 'permit testimony of his previous arrest.' The testimony was stricken out by the court and the jury was instructed to disregard it. Also, whether a mistrial should be declared in a circumstance such as this is a matter which rests largely within the discretion of the trial court. State v. Hadley, Mo., 249 S.W.2d 857; State v. Baker, Mo., 293 S.W.2d 900; State v. Ruyle, Mo., 318 S.W.2d 218. In view of the corrective action taken by the trial court, if any such action was required, we find no abuse of discretion.
Defendant's seventh point is that 'it was error to characterize the appellant as 'Whizzo' as there was no proof of such appellation.'
In his opening statement to the jury the prosecuting attorney referred to defendant as 'Wendell Williams, also known as 'Whizzo' Williams.' The defendant interrupted and said, 'My name is Wendell.' On cross-examination, after asking defendant if he was Wendell Williams, the prosecuting attorney asked this: 'You are also known by your friends as 'Whizzo' Williams, is that not correct?' Defendant answered, 'That...
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