State v. Yager

• Decision Date: 12 June 1967
• Docket Number: No. 52437,No. 1,52437,1
• Parties: STATE of Missouri, Respondent, v. George Davis YAGER, Appellant
• Court: Missouri Supreme Court

Page 170

416 S.W.2d 170

STATE of Missouri, Respondent, v. George Davis YAGER, Appellant.

No. 52437.

Supreme Court of Missouri, Division No. 1.

June 12, 1967.

Motion for Rehearing or for Transfer to Court en Banc Denied

July 10, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Norman A. Selner, Special Asst. Atty. Gen., Clayton, for respondent.

Norman S. London, St. Louis, for appellant.

HENLEY, Judge.

Defendant was charged by information with burglary, second degree, and stealing. Sections 560.070 and 560.156, RSMo 1959, V.A.M.S. A jury found him guilty as charged and assessed his punishment at imprisonment for four years for burglary and four years for stealing. His motion for new trial was overruled and the court sentenced him in accordance with the verdict, the sentences to run consecutively. Defendant appeals. He was represented by court-appointed counsel in the trial court and is represented by other counsel in this court. His counsel has filed a brief and a reply brief and presented oral argument in defendant's behalf.

Defendant does not question the sufficiency of the evidence. In the early morning of December 11, 1965, at about 12:50 A.M., Sergeant Don DeLaPorte and Officer Kenneth Foxall of the Hannibal Police Department were patrolling an alleyway in a police car at the rear of the Yates and Hagan Clothing Store in Hannibal when they saw a 1961 Oldsmobile parked alone just off the alley in a parking lot a short distance north of the clothing store. They stopped and Sergeant DeLaPorte looked in the Oldsmobile where he saw several bundle's of men's and boy's suits, on hangers, on the back seat and floor. Being suspicious of these circumstances, Sergeant DeLaPorte went across the alley to check the rear door of the Yates and Hagan Clothing Store. He drew his revolver and, turning the door handle, discovered that the door was unlocked; at the same moment he heard a 'scuffling' sound inside. As he opened the door he saw a man move toward the front of the store; the next instant he saw another man moving toward the front. Street lights in front of the store silhouetted the two men. As he moved toward the front of the store he heard the glass of the front door being broken the saw the two men go through the door, one going directly across Main street and the other disappearing in another direction. He followed them through the door in close pursuit and called to them to halt. Defendant, being directly across the street, stopped, and as he turned to face the officer he had a revolver in his right hand. The officer ordered him to drop the revolver and he did, throwing it into the gutter beside the walk. The officer ordered defendant to lay face down on the sidewalk with his hands above his head; in that position he was arrested, handcuffed and searched. Another officer took him to jail and Sergeant DeLaPorte, after picking up the revolver from the gutter and removing its cartridges, went back inside the clothing store. There he found fourteen or more bundles, each containing about ten suits on hangers, tied with a belt and piled on the floor and a table near the rear door of the store. Inside the office he found drawers of a desk standing open, invoices and other papers scattered about, a golf bag (not the property of the store) containing tools commonly used as burglar tools, and the store's metal cash box, empty. The owners locked the store securely when it was closed for the day on December 10th; $215.00 had been left in the cash box on a shelf in the office at the close of business that day. Entry into the store was gained by cutting a hole through the roof. On search, the back seat and trunk of the parked Oldsmobile was found to contain seventy suits similarly bound in bundles, all belonging to and stolen from the store.

The first point briefed is that 'Prejudicial error was committed * * * when * * * (the) police officers testified that * * * appellant refused to make a statement * * *' while under arrest.

Defendant concedes that trial counsel made no objection to this testimony and did not assign this point as error in his motion for new trial. The point is not preserved for review. State v. Willis, Mo., 283 S.W.2d 534, 538(7); State v. Brookshire, Mo., 353 S.W.2d 681, 685(10); Criminal Rule 27.20(a), V.A.M.R. However, defendant asks that we invoke and review the point under the 'plain error rule,' Criminal Rule 27.20(c).

That small portion of the officers' testimony quoted in defendant's brief does appear to be prejudicial for its substance is, in effect, that defendant refused to make a statement while under arrest. The rule in this state is that the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make a statement. State v. Vainikos, Mo., 366 S.W.2d 423, 427(4, 5) and cases there cited. However, we have read the testimony of these officers and find that not only is the testimony quoted in his brief taken out of context, but, also that defendant himself brought out this testimony first, during his cross-examination of the first witness, Sergeant DeLaPorte, and that he pointedly continued that same line of cross-examination with Officer Schutze. Furthermore, defense counsel during argument, called to the jury's attention that defendant had refused to say anything in reply to the officers' questions and his reasons for refusing. Considering all of the testimony of the officers, defendant's cross-examination of the officers and this argument, we conclude that he purposely chose not to object to this testimony as a part of his trial strategy. In these circumstances, he is in no position to ask that we invoke the rule, and, for the reasons indicated, we decline to do so. State v. Worley, Mo., 353 S.W.2d 589, 596(11); State v. Meiers, Mo., 412 S.W.2d 478, 481(5).

His next point is that the court erred in compelling state's witness, Larry P. Harris, to invoke his constitutional privilege against self-incrimination in the presence of the jury.

Mr. Harris was called to the stand by the state. He stated his name in response to a question and then, on request of counsel for defendant, further proceedings were had outside the presence and hearing of the jury. A police officer, the last witness to testify before Mr. Harris took the stand, testified that he had talked to Larry P. Harris. An inference could be drawn from the officer's testimony that Harris was the owner of the Oldsmobile found behind the Yates and Hagan Store loaded with bundles of suits. The record indicates, however, that Harris was not charged with this offense.

During the proceedings outside the presence of the jury separate counsel for Mr. Harris informed the court that he had advised his client to, and that Harris would, claim the protection of Article I, § 19 Constitution of Missouri, V.A.M.S., and refuse to answer any questions which might tend to incriminate him. Mr. Harris' counsel further informed the court that he had advised counsel for the state previously that his client would refuse to testify for the reasons stated.

Counsel for defendant strongly objected to the witness being required to claim his privilege against self-incrimination in the presence of the jury for the reason that to do so, he says, would be highly prejudicial to defendant. For this reason, counsel requested that the court rule now, outside the presence of the jury, that Harris was not required to return to the witness stand and testify further in the presence of the jury. The court stated, in substance, that he would, of course, sustain an objection on that ground when the witness was asked a question the answer to which might tend to incriminate him; the court also indicated that it appeared probable that the witness would not be required to answer more than his name, age and address. The court took the position that there was no specific question to the witness, with this objection interposed, before the court for a ruling, and until such question was posed and proper objection made the court could not rule intelligently; that the proper time for objection on this ground is when the first question is asked that might tend...