State v. PayneState v. Payne
Fоllowing retrial a jury found the defendant guilty of murder in the second degree, Sec. 565.020.1 R.S. Mo.1994 and of armed criminal action, See. 571.015, R.S. Mo.1994. The court followed the jury’s recommendation in assessing concurrent life sentences on each count. We affirm.
The defendant does not challenge the sufficiеncy of the evidence to support the verdict, and so a relatively brief statement of facts will suffice. Gerald Akins, the victim’s companion, was the only eyewitness, and there are few items of circumstantial evidence. Akins and Arlee Jones, the victim, were walking about midnight of July 10, 1993 in the vicinity of E,idge and Union in the West End of St. Louis. Jones was “high,” and postmortem examination showed that he had recently used alcohol, cocaine and heroin. Akins testified that he had not been drinking or using drugs.
At the intersection of Ridge and Union they saw two men on the other side of the street who approached them with drawn guns. The defendant said to the victim, “you’re the one,” and the victim replied “I’m not the one.” After more conversation along these lines the defendant shot the victim several times. Akins understandably retreated from the scene as quickly as possible and returned to his home. The victim was dead on arrival аt a hospital. Akins had no phone and did not call the police until the following morning, from a phone booth. A policeman picked him up and drove him
Akins was then questioned by other officers and a large number of pictures were shown him a day or two later. He pointed to a picture of the defendant, who was then arrested and placed in a lineup. Akins picked the defendant out of the linеup.
The Absence of Detective Kaelin
The defendant strongly argues that the trial was tainted when counsel undertook to subpoena Kaelin and Kaelin did not appear. The uncontradicted record shows that the St. Louis Metropolitan Police Department discourages the service of subpoenas on officеrs on duty or at their homes. The liaison office undertakes to accept subpoenas served on it seven working days before the trial date.
The defendant announced on April 15,1996 that he would be ready for trial on Monday, April 22. Also on April 15 defense counsel’s investigator served a subpoеna directed to Kaelin on the liaison office. The subpoena was returned to the server the following day, apparently because it had not been served seven working days before the trial date, and counsel was directed to serve the document at the Homicide Bureau, in which а secretary had authority to accept service for police officers in the bureau. The subpoena was served there on Wednesday, April 17, but the particular secretary who handled subpoenas was not present. Kaelin was on duty from Monday through Friday of that week, with a possible day off, and was scheduled to go on vacation after completing his shift on Friday, April 19. He left on vacation without knowing about the subpoena. Defense counsel made no check as to whether the subpoena had reached him and whether he would appear.
Trial commenced April 22. The initial trial was aborted on defendant’s motion and a second trial began on Tuesday, April 23. At this time defense counsel noted Kaelin’s absence and was advised that he was on vacation. Counsel filed oral and written motions for continuance, the latter being in propеr statutory form. The court overruled the motions but requested the prosecution to try to get hold of Kaelin and expressed confidence that he would be present before the trial ended. The prosecutor’s office made inquiry of the police department but the word did not get to Kaelin before the trial had ended. Although it was reported to the court that Kaelin could not be reached, Kaelin himself later testified that his whereabouts were known to the police department. The defense rested its case without calling any witnesses.
The defense focused on thе unreliability of Akins’s identification. The night was dark and Akins had a substantial criminal record. Counsel made much of the absence of any description of the suspect in the police report, along with some inconsistencies between testimony at the first and second trials. He also intimated that there was undue suggestiveness in the photos Kaelin showed Akins.
We do not commend the police department’s handling of the subpoena, which suggests conscious unhelpfulness. The department had notice of the subpoena for a full working week while Kaelin was on duly. If the department wants to avoid рersonal service of subpoenas on officers wherever the process server can find them then it should facilitate the delivery of documents lodged with it. It may also be inferred that the department was less than helpful in responding to the prosecutor’s request that Kaelin be locаted, made at the direction of the court. Later evidence showed that Kaelin was hunting in Callaway County, approximately two hours from St. Louis. He could have been in and out of court in one day, thus putting an end to any speculation about the effect of his testimony. The trial judge suggested that the entire procedure of appointing an agent to receive service of subpoenas is contrary to the legal requirement of personal service,
Any fault on the part of defense counsel is minimal. Counsel has the right to subpoena a witness whenever it is considered that the testimony may have value. The attorney general suggests that counsel was at fault in announcing ready for trial without making sure that Kaelin would be available, but at the time the announcement was made and at the time the subpoenas were served Kaelin was present for duty and, had he received the subpoena, he could have been compelled to attend.
We must still determine, however, whether Kaelin’s absence was prejudicial to the defense. Rule 84.13(b) enjoins us to reverse only for “error ... materially affecting the merits of the action.” See State v. Fuller,
In the present case, Kaelin testified in a lengthy deposition. The upshot of his testimony was that he had little memory of the particular incident, which had taken place nearly three years earlier. He apparently had not been interviewed in the meantime by any representative of the defense. Defense counsel sought to show that Akins had given him no description of the subject, thus casting doubt on his later identification. Kaelin testified to his usual practice of including in his рreliminary report any description of a suspect given by an interviewee, and opined from the absence of the description that Akins had furnished none. Akins testified to giving a description of some of the gunman’s features, but was not clear as to whether he had given it to Kaelin or to an offiсer who interviewed him later. Kaelin said that he had shown Akiris some shots of police characters which he liad in his desk, but had not kept them and did not know where they were, who the subjects were, or whether the defendant’s picture was included. Akins was not certain that any of the pictures that Kaelin shоwed him were of the defendant, and picked the defendant out of a later showing.
We are unable to see from Kaelin’s deposition how the information he gave would benefit the defendant substantially. His counsel could and did point out in argument the absence of any description from the police report as an indication that Akins was not sure whom he had seen. Kaelin’s testimony showed nothing to indicate that his display of photos was “tainted,” or that he tried to get Akins to identify the defendant. Akins seems to have made his initial identification from a photo shown him later, rather than from any Kаelin showed him.
The defendant argues that, at the very least, Kaelin was more available to the state than to him, and that his counsel could properly comment on this circumstance. Cases consistently hold that police officers are not inherently less available to the defensе than to the prosecution. See State v. Ganaway,
Even though we criticize the police department for its handling of the subpoena directed to Kaelin, we are unable to say that his testimony would have helped the defendant to such an extent as to warrant a new trial. He offered nothing which was not
The Batson Issue
The рanel contained eight African-Americans out of a total of 25. The prosecution used all six of its peremptory challenges to remove African-Americans. The defense objected under the doctrine of Batson v. Kentucky,
For four of the six, the prosecution assigned the circumstance of unemployment as justification for the challenge. This has been recognized consistently as an appropriate reason. State v. Alexander,
The court is not required to probe reasons assigned for a challenge so as to determine whether the reasons are sound. The prosecution is entitled to play “hunches,” so long as they are race-neutral and not pretextual. State v. Parker,
Bad Faith in Calling Witness
The prosecutor in opening statement indicated that there would be evidence that, after an altercation in 1991, “Arlee and Juan Payne were not friendly anymore ...”
The prosecution put on one witness who was asked about relations between the defendant and the victim but said thаt she had no information.
The state then called the victim’s daughter, Antoinette Jones-Plumber. She had testified at a prior trial of the defendant for this offense, and the trial judge had granted a new trial because he considered that he had admitted inadmissible hearsay in response to questions abоut the victim’s attitude toward the defendant. The prosecutor sought to question her about her observations of the relationship between the defendant and the victim but was quickly stopped by objections and abandoned the inquiry.
The defendant argues that the prosecutor was acting in bad faith in calling Jones-Plumber, knowing that no admissible questions could be asked of her. In the motion for new trial he introduced testimony of Jones-Plumber indicating that she knew nothing about the relationship between her father and the defendant except for what her father had told her. He argues that the proseсutor was trying to suggest inadmissible matter in the form of questions, which drew proper objections.
We reject the challenge. The jury was properly instructed that what is said in opening statement is not evidence, that questions are not evidence, and that jurors are to give no consideration at all to a question as to which an objection was sustained.
It would have been appropriate for the defense to point out in argument that the prosecutor had failed to back up the assertions in his opening statement. Such argument is often used. Whether to use it in a particular case is a matter of trial tactics.
As to the matter of the prosecutor’s good faith, we see nothing which indicates
We find no legal error. The judgment is affirmed.