*1 employee, owner of a tobacco store and his Missouri, Respondent, STATE aged 72 respectively. and 61 The murders robbery. committed in the course of a BROOKS, Appellant. Paul James Both victims received blows to the head instrument, with a blunt such as a beer No. 62495. bottle, ribs, both had fractured and both Missouri, Supreme Court of wounds,
received multiple apparently stab En Banc. from a broken beer victim bottle. One times; stabbed fifteen other June 1981.
stabbed five chest and times in the several Rehearing July Denied 1981. parts times in the abdomen and other body. Downs, (Mo.
In State v.
1980), the defendant was convicted of the
capital couple murder of a married eighteen year-old daughter,
their with a life
sentence. The defendant and others robbed couple store owned and shot
them each in the daughter head. When the approached
returned-from her classes and opened grabbed by door she was defend pulled
ant and another and into the store parents lay girl
where her dead. The fell to
her begged knees and for her life. The put gun to her head and shot
her.
It seems to me Justice that what Mr. Georgia,
White concluded in Furman v. 238, 313, 2726, 2764,
U.S. 92 S.Ct. 33 L.Ed.2d (1972) (concurring) remains the fact.
He said there that great penalty death is exacted with
“[t]he
infrequency even for the most atrocious meaningful
crimes and that there is no distinguishing
basis for the few cases imposed
which it is many from the cases
in which it is not.” outset,
As said at the I would reverse
remand for a new trial. *2 Louis, appel- Edwards,
Leslie D. St. lant. W. Ashcroft, Gen., Corn- Atty. Mark
John Gen., City, for Atty. Jefferson ley, Asst. respondent.
RENDLEN, Judge. illegal sale two of of on counts
Convicted
heroin,
as a
defendant was sentenced
terms of 13
to concurrent
Second Offender
Following
years
count.
affirmance
on each
District,
Appeals,
of
Eastern
in the Court
under Rule 83.03
the cause was transferred
possible
in that deci-
to examine for
conflict
Kirkland,
Defendant’s (1) evidence to insufficient identification conviction; (2) of abuse discre- sustain refusing to strike by the trial court in tion during opening remark statement, relating “tip” to an informant’s constituting hearsay.1 inadmissible necessary
A review the record meet defendant’s contention doing sufficiency of the evidence. In so we circum true all whether accept as evidence direct, prove defend tending to stantial or reasonable in guilty together with all ant Fur supportive the verdict. ferences ther, disregard portions we those verdict, mindful that contrary record the evidence weigh is not to our function was suffi there to determine “whether but per reasonable evidence which cient guilty as have found defendant sons could Kelly, charged.” State 1976), (Mo.banc from State v. quoting Johnson, (Mo.App. 1974). attempt
1. also asserts the state’s to introduce Defendant as error the court’s to concerning mistrial, during grant “tip.” requested This issue is refusal to the informant’s (2). objection point trial when was sustained resolved our determination Though defendant principal The state’s witness was Of testified he was not liv- Dickens, assigned ficer to the Nar Patrick merely the house when arrested but cotics Division of Louis Police De the St. drinking night, Dickens in there that rebut- partment. two Following “tip”, under arrested, tal testified that when Bates, agents, cover narcotics Dickens and A gave his address as 2918 Sheridan. sub- photograph armed with of defendant missible case was made and the evidence *3 a residence commenced surveillance of at jury’s was sufficient to conclu- City 2918 Sheridan in the St. Louis. sion that defendant sold heroin to Officer activity a swirl of These officers witnessed Dickens, first accordingly defendant’s as- including about the entrance of the house signment error denied. must be currency for people exchanging something contends the trial court Defendant next through next to else a mail slot the front pros- permitting abused its discretion in continuing Observing door. a flow of traf statement, during opening ecutor to remark fic at and into front door the house police] through work informants.. . . “[the followed, during the the offi days two they that narcotics received information approach cers decided the house at about .to being being was sold at were sold—heroin 21, 1978, p. February 9:30 m. on Brooks.” Defend- 2918 Sheridan Paul As attempt purchase they heroin. denied, and he ant’s motion to strike was house, person resembling neared the a de inadmis- asserts this statement constituted fendant, had, photograph they whose mo right hearsay, resulting in denial of his sible tioned from the window for them to come against him. confront witnesses to the front door. Bates remained on the approached sidewalk but Dickens the front measuring the trial court’s When porch “appeared and saw a man who to be error, ruling must remem possible we through openings Brooks” of the Vene opening state scope ber the and manner of Reaching tian blinds on the window. largely within the discretion ment clearly front door Dickens was able to ob necessarily rely upon the court which must through serve defendant the blinds on the making opening good faith of counsel door, response and in in to defendant’s facts jury as to material statements to he wanted “two quiry, Dickens stated that objective of an they prove. intend to The things”, capsules for two street vernacular opening statement is to introduce slipped of heroin. Dickens 20 dollars then them, before to the nature of the cause through in return the mail slot and received for such by both sides may it be utilized pink capsules containing requested two Thomas, 893, purpose. 526 S.W.2d State v. drug. question of wheth (Mo.App.1975). 896 re- following evening the Officers discretion in court abused its er the trial house, making pur- turned to the another is examined limiting opening statement previ- chase of heroin in the manner of the that em from against a standard different he and night. ous Dickens testified that stemming from in search for error ployed again Bates see defendant able to rulings during trial. When evidentiary house. through the front window of the exercise of the trial court’s issue concerns sever- Defendant was arrested at the house statements, opening discretion relative to al weeks later. found if reversal will be requiring no error Although testify, Bates did not Dickens arguably refers to challenged as the unequivocally identified defendant reference was and the admissible evidence drugs man who sold him the on each occa- expec reasonable good made in faith with a sion. produced. be State tation the evidence will 948, (Mo. Browner, Clark, 952-53 v. 587 Jessie owner of the residence S.W.2d Hodges, 586 S.W.2d Sheridan, v. App.1979); 2918 he had rented the State testified Thomas, v. 420, personally (Mo.App.1979); 426 State downstairs to defendant and had 893, (Mo.App.1975). him. 526 896 payments rental S.W.2d collected
25
infor
perhaps
evidence as to the
could interview and
elicit favorable
Here
“arguably
mant’s
was
admissi
testimony
question
observations
from him. The
alibi
ble”,
as the officer’s
was offered
court erred in
simply, whether the trial
was
not to
received
prove that
the information
failing to force disclosure of the informant’s
explain
his surveil
true but rather
analysis
ruling
identity. Neither the
nor
Harris,
lance of the house.
State v.
apposite in
issue now be-
Wandix are
443,
(Mo.App.1978).
It is well
S.W.2d
Nevertheless,
noting
it is worth
fore us.
established that such
is admissi
and evi-
if the
remark
conduct, supply
ble to
the officers’
had
been
dence
the informant
continuity
background and
relevant
Wandix)
unchallenged (as in
admitted
McRoberts,
the action.
State
role
concerning the informant’s
facts here
Barnes,
(Mo.1972);
State v.
removed,
temporally
spatially
were so
(Mo.1961);
131-32
urged
be
no serious contention could
Bright,
(Mo.1954);
(which it
requested
court if
the trial
*4
Lewis,
(Mo.
564,
State v.
566-67
force
not)
required
have been
to
dis-
would
App.1978).
this
triers of
Under
rule the
identity.
the informant’s
Here
closure of
provided
fact
of the
portrayal
can be
prior
gave
tip sometime
the informant
his
events
more
the
question,
likely
in
to serve
ultimately
and remote
the house
to
ends of justice
in that the
is not called
placed
“tipster”
under surveillance.
upon
speculate
to
on the
or reasons
cause
par-
present and of course neither
was not
subsequent
for
the officers’
activities.
days
in nor
the two
of
ticipated
witnessed
Hence,
and,
the statement was relevant
at
prior to
of the crimes
activity
commission
least,
the very
arguably
to ex
admissible
nights
the events on
the crimes
nor
the
plain
sudden
the
commencement of
hand,
other
in
were committed. On the
investigation
particular
that
residence.
case,
Wandix,
the
unlike the instant
defend-
noted,
As previously
no
the
testimony of
testify
to
ant had endorsed alibi witnesses
informant’s statements came into evidence
only
was the
in his behalf. The informant
objections
as defendant’s
sustained.
were
might corroborate
lay witness available who
However,
court,
ruling by
that
the trial
witness-
by
offered
the alibi
the
though
defendant,
errone
favorable to
was
was involved
The informant
in Wandix
es.
cannot,
ous
urges,
and
as
some
defendant
transaction,
it was he
drug sales
and
in the
how
declaring
serve as a basis for
reversible
one
to the
who introduced
of the officers
prior
error in the
dur
decision of the court
partner
identified de-
as his
and
defendant
ing
Instead,
opening
prose
statement.
the
fendant, Wandix,
drugs.
as
seller of
the
going
cutor’s
forward with the evidence
presence
was
of
informant
there in the
good
demonstrates a
faith effort to adduce
officer,
the
followed de-
defendant and
and
proof
opening
of the matters referred to in
drugs
the
fendant
to the residence where
statement.
participa-
No evidence of such
were sold.
Defendant cites the
recent decision
of de-
tion in the incident or identification
Wandix,
(Mo.banc
State v.
(Mo.1972) testimony holds that two officers’ WELLIVER, HIGGINS, MORGAN and regarding police communication de- radio JJ., concur. scribing used in an assault an automobile robbery probable and could be used to show SEILER, J., separate in dissents dissent- searching stopping cause for the auto- and ing opinion filed. riding. mobile in which defendant BARDGETT, J., separate C. in dissents in There was no mention of defendant the dissenting opinion sepa- in filed and concurs broadcast. dissenting SEILER, opinion
rate J. 130, Barnes, In v. 131— State 345 S.W.2d (Mo.1961), permitted 132 the court two trial DONNELLY, J.,C. withdraws concur- a de testify they officers to received that rence separate and dissents in and concurs police suspect on the scription robbery of a dissenting SEILER, opinion of J. However, no mention of radio. there was SEILER, dissenting. Judge, suspect. It is note being as respects While in with in Barnes would worthy all that the trial court agreeing dissenting opinion relate permit police of Chief Justice Bard- officer to that gett, giving the de part I believe the situation warrants of the radio broadcast voic- objections suspect. some what scription robbery additional to I of the be a dangerous consider to and unfair 615, Bright, In v. 623 State change in the rules of evidence relevan- (Mo.1954), inspectors were postal several cy in criminal cases. superintendent to permitted testify that opinion principal The holds that the dress told them that trial of a manufacturer sustaining objec- misappro- court erred in or being misplaced dresses “were trial, reports testimony, tion to that priated” “we received testimony officer’s held that missing.” as to the informant’s stuff was The court
27 show that was led to believe that a who testimony not to was used stolen, subject had been but rather as a present the dresses in court and not was not background postal inspectors’ subse- to the the officers that cross-examination had told quent activities. There was no mention committing a crime. defendant was who was above-quoted testimony analogous Stamper v. This case is stealing anything about the dresses or of State, (1975), in 235 Ga. S.E.2d defendant. battered which a witness testified that a Lewis, In 566- State (her appellant child had told her that (Mo.App.1979), per- two detectives were argued stepfather) had beaten her. It was mitted to had testify they received testimony combined with testimo- that such information that a certain cab stand was body on the child’s ny regarding bruises property. the locus of transactions in stolen subsequent conduct explained the witness’ The court held that the was not the child. obtaining a doctor to examine used to show that the cab stand was a de- Georgia Supreme Court reversed location, fencing background but as to the conviction, declaring that “The fendant’s subsequent detectives’ activities. There naming appellant statement of the child fencing was no as to who entirely as her was the one who had beaten property. stolen conduct of the unnecessary by a having the child examined witness by principal None of the cases cited of the child opinion permitted physician.” The statements the use of out of court name, hearsay. were held to be 219 S.E.2d at identity declarations to establish the prior activity (emphasis supplied). criminal of the defendant providing when background subsequent properly explicated The law is investigative activities of authorities. In Bankston, 263, 307 A.2d 63 N.J. bar, prosecutor the case at open- in his (1973), of New Supreme in which the Court ing statement stated had Jersey stated: “received information that .. . heroin was hearsay rule “It is well settled that the being sold at 2918 Sheridan Paul ex- is not violated when a officer (emphasis Brooks.” supplied). princi- plains approached suspect he the reason *6 pal opinion would testimony hold that by or went to the scene of the crime that effect was admissible at trial as well as ‘upon information stating that he did so permitting it in the opening statement. I McCormick, (2d ed. received.’ Evidence cannot see how attributing the sale of her- 1972), 248, testimony has p. 587. Such § oin to helps explain why Paul Brooks the to show that been held to be admissible police staking were out 2918 Sheridan. acting arbitrary in an officer was not the They would have done the same had John subsequent con- manner or to selling Doe been heroin at 2918 Sheridan. Barnes, duct. .. . State The use of defendant’s name was unneces- (Mo.Sup.Ct.1961) .... How- sary purpose. Going and irrelevant to the ever, spe- more officer becomes when the on to identify by inevitably name person other by repeating cific what some jurors conveys to the that in and in truth by the ac- him a crime told doing fact it is the is defendant who the hearsay the cused the violates selling of the heroin place at the the offi- Moreover, admission rule.... the cers watching. history are Never in the accused’s testimony violates the permitted the court have we this. The right to be confronted Sixth Amendment principal opinion says thereby that “the by against him.” witnesses jury upon speculate is not called on the new for a I reverse and remand would cause or subsequent reasons for the officers’ trial. Quite activities.” jury true —the now knows that it was because defendant was Justice, BARDGETT, dissenting. Chief selling heroin at 2918 that Sheridan the officers hearsay. were there. This The respectfully I dissent. jury police overruling why that the will know the were
The trial court erred in objection prosecutor’s to the the house under surveillance. keeping defendant’s jury police to the “the work jury person that was that a What the heard through “They police] informants” upon police told the that police [the relied that nar- they received information selling say To defendant was heroin. were — being being sold—heroin was cotics jury would not consider that statement by Paul Brooks.” sold at 2918 Sheridan support finding for a that the de- as some by this state- clearly hearsay This was address is fendant did sell heroin at that asking jury prosecutor ment the was unrealistic. give information received credence to the time a every One can assume that unidentified informant that a cer- an place in the goes particular to a officer taking place tain event was —defendant reason. he does so course of his duties selling That heroin at 2918 Sheridan. not, will, than be more often That reason charged with is what the defendant from oth- he has received the information sought state doing precisely and is what the informants, is or ers, that a crime perhaps to and did convict him of. That infor- by someone. will be committed police officer was Later in the case a something the state always will be mation how he first be- prosecutor asked open- about —in jury like to tell the would house. Defendant’s ob- came aware of the it will al- ing statement —and jection question to this was sustained hearsay and the defendant always most be part. permitted say officer was he The right to cross-examine will be denied his had become aware of the house but was credibility the information upon whose one permitted to how he had become aware say depends. re- prosecutor point this of it. objec overruling the The court erred ruling was incon- judge’s marked that Kirkland, of the defendant. State tion ruling objec- sistent with his earlier on v. Cher (Mo.1971); during opening state- tion on this matter (Mo.1955). nick, opening ment and said that the confidential what the statement established principal in the The invitation found informant had said. to make statements prosecutors opinion to an unidenti- as to what and offer evidence the trial principal opinion states police, on the part tells the fied third objec- sustaining erred in court understand will better ground that recitation of to the officer’s tions particular place or to a why went informant told him. what the confidential individual, without arrested authority no There is cited cross-examination, will be being subject to Indeed, sup- is none to holding. there in nu- will result acceptance Its accepted. port it. *7 merous reversals. understand, although perhaps I could plaintiff’s with, would not allow agree holding that the This Court a explain to the damage suit to attorney in a with reference to the informant’s were at the preju- is not that the reason jury of the defendant identification po- somebody called the evidence. scene was because dicial error in view of other in the case them the defendant However, say incorrect to lice and told palpably it is get might try to through light and jury, had run a red may the state inform the prose- allows here the court away. the testi- Yet prosecutor statement of the told the someone jury that witness, not called cutor to tell the mony of a selling To heroin. the defendant police that a witness has told the as guilt as assertion of pure That is allow this selling heroin. defendant was “explain” charged in order to justify its the offense sophistry to and it is hearsay at defendant’s present underlying, why basis that the on the admission idea that so house is a charade. admission is for its unspoken, reason but as to persuasive will not be information
guilt is unrealistic.
I dissent. al., CHURCH,
George et
Plaintiffs-Appellants, CORPORATION,
RICHFER
Defendant-Respondent.
No. 62554. Missouri,
Supreme Court
En Banc.
June 1981.
Rehearing July 1981. Denied Seigel, St. Munson, Stein &
H. Kent Louis, plaintiffs-appellants. for Growe, Ponfil, Clay- Gary A. D.
Theodore ton, defendant-respondent. for
SEILER, Judge. failure respondent’s This case arises plain- goods. Appellants, to return bailed below, of the bailment sued for breach tiffs $12,- jury verdict obtained contract and court, however, granted The trial 760.1 of a defective new trial on the basis trial court’s appeal, instruction. On was affirmed. granting a new trial order banc appeals en rehearing, court of On case to this affirmed. We transferred the basic clarify what constitutes court to of action a bailor’s cause elements of fails to when a bailee of contract breach *8 no he is because property bailed return it. longer possession for Si- statutory trustees are Appellants (hereinafter Si- Corporation nalco-American $12,760 apparently cents each. valued at fifteen based 1. The award of 85,000 on the loss of bottle carrier cartons