*1 21 holding ing disqualification that defect cited no cases is which must required cautionary juror give try be raised is the court is before sworn Appellant suggests of circumstantial case. the court instruction on the effect that part policies of the of evidence as law case. wish to re-examine the of the However, contrary. subject. cases held to the state on this Numerous have Turner, 266, policy Mo.Sup., basically legislative one, is State v. 272 S.W.2d ex- pressed 1959, State v. Al- RSMo [13], 494.050, 271 48 A.L.R.2d V.A.M. § S., province len, Mo.Sup., 235 not within of this S.W.2d [4].
court to alter. contention of The second judgment is affirmed. a judg that the defendant’s motion acquittal at state’s ment of the close HIGGINS, CC., HOUSER concur. because have been sustained case should there was insufficient evidence PER CURIAM: the defend jury could convicted WELBORN, opinion by The foregoing on his mo ant. Defendant did not stand C., adopted opinion of the Court. close acquittal at the state’s tion Therefore, testimony. He case. offered All of Judges concur. overruling of error he waived claim acquittal the close his motion at Doepke, Mo.Sup., 361
state’s case. v. State McDaniel, ; v. [2,3] State
Mo.Sup., [2,3]. 392 S.W.2d any event, fingerprint evi
In jury warrant sufficient dence was Missouri, Respondent, STATE Mo. guilt. v. finding Allen, State See “Proof, howev Sup., 420 S.W.2d 333: YATES, Appellant. Russell James place er, fingerprints found committed, ‘under such a crime is No. 53641. only have they circumstances Missouri, Supreme Court crime was impressed at the been Division No. ac committed, correspond those 9, June cused, proof be sufficient Evidence Anno: a conviction.’ to sustain Palm, Footprint, A.L.R.2d
—Finger, 29.” §§
Appellant’s assignment final of er
ror is did not receive a qualified jurors
hands twelve because jurors
one of the a hearing had defect.
Appellant acknowledges objection that no juror’s
was made qualifications be fact,
fore he was knowledge sworn. In ju disability claimed when arose polled
rors were after returned their Appellant candidly acknowledges
verdict. Parsons, Mo.Sup.,
that State v. 285 S.W. Watson, Mo.Sup., S. alleged have held hear-
W.2d
HOUSER, Commissioner. Yates, by jury Russell convicted James illegal drug sale of a stimulant and sen- ap- years’ imprisonment, tenced to 8 *3 pealed.
Defendant, indigent, arrest attorney on An ed December appointed January on him for Appellant delay un 38-day scores this as reasonable, irreparable harm be claiming during cause the interim material evidence lost; regards he evidence which dispensable proper preparation to the question is his defense. The evidence feet 70 feet of film out 100 movie of film a camera shot TV newsreel evening man on of December broadcast, 1966 a monitored responded heard a call 5091 Del Boulevard, mar saw officers front of building, got out of car with his camera, followed officers into building running, with his camera and en people, tered a room three saw air, being their searched hands “recovering An officer officers. some photographed. vials” toilet was All from spontaneous taken were not films posed. processed The film was 30 feet out, spliced itof was cut and shown on tel evening. remaining evision that The feet at was thrown into cut-out basket station, ordinarily the TV where film is kept week to month and then from may thrown out. It be inferred posses feet was never to or in shown police, eventually sion of the was discarded and is now irretrievable. difficulty appellant’s with contention showing
is that
there
film
saved would have demonstrated his inno-
cence, depicted
fact
any
favorable to
defense, impeached any
state witness
fact,
any
any
material
or revealed
fact not
Danforth,
Gen.,
C.
Atty.
Johns
Jefferson
orally.
testified
not
The film was
taken
City,
Herron, Sp.
Atty.
W.
Asst.
James
crime,
at the
the commission
Gen.,
Louis,
respondent.
St.
during
but afterward
the officers’ raid and
Brand,
defendant,
William E.
Jr.,
Dur-
arrests
Williams
W.
James
ham,
Louis,
appellant.
Montgomery.
St.
The film
would
shown
persons
present,
right
of his
those three
others
no denial
constitutional
Holmes, Mo.Sup.,
including
officers,
physical
speedy
and their
trial. State v.
ar-
movements and actions
the time
reaffirmed
demonstrated
dressed
appellant. The officer was
from
defense,
to
or how
been favorable
have
the
answer to
offi
in civilian clothes. In
it
manner
assisted
in what
by a ne
opened
the
cer’s knock
door
appellant
establishing his innocence.
The
gro
Frankie
woman named
Williams.
officer asked her
Russell Yates was
of
Appellant contends that because
officer then
The
and she said “no.”
there
“ma
packet
the difficulties he encountered
buy
“trey bag”
of
(a
-asked to
$3
during
neuverings” of the
officer
re
apartment,
into the
drugs).
went
She
appellant
trying
to obtain
a small alu
turned in a few moments with
posses
and
physical
from
control
him the
the officer
gave
to
packet
minum
and
film,
inter
and
locate and
The
sion of
to
bills.
exchange for three one dollar
cameraman,
obliged
appellant was
view the
as Dex-
powder known
contained a
packet
and
apply
to
continuances
The
Hydrochloride.
for several
Amphetamine
tro
Ap
speedy
therefore was denied a
trial.
two men
evening, December
next
activity
knocked,
pellant says
of
address,
Frankie
returned to that
attorney’s
unlaw
door,
and circuit
assistants was
two
Williams
and
answered
of
process
him
deprived
ful
of due
they
and
to see Rus
men
her
wanted
told
The
speedy
door,
trial:
question
of
into
opened
law. On
sell
walked
Yates. She
filed March
indictment in this case was
negro
room
males were stand
where two
September
began
The
on
her and
ing
Bardley
a table.
followed
period
Bardley. Bardley,
interim 6-month
During the
informer followed
for con
motions
photographs
filed numerous
who had seen
Russell
of
evidence,
inspect Yates,
suppress
Bardley
to
recognized
him.
walked
tinuance,
and
documents
copies
various
ahd make
over
a table on which there were alumi
film,
name of
compel disclosure
num
and
packages, syringes
foil
vials.
informer,
dismiss,
produce
Lloyd
and to
an
The other man in the room was
dis
Bardley
The
Montgomery.
to defendant.
asked
evidence favorable
Russell Yates
necessarily
position
Bardley
of these motions was
wanted.
“Give me a
what he
said
table,
time-consuming.
trey bag.”
The
asked
reached to the
State
Yates
(to
only
picked
package
filed
one motion
and
continuances and
an aluminum foil
quash
subpoena
tecum).
gave
There
Bardley,
handed it
who
Yates three
duces
delay turned and
nothing
Bardley
indicate unreasonable
went out
bills.
$1
spoken,
prosecution
informer,
had not
disposition
first. The
part
walking
prolong
Bardley
of the
left
behind
left,
defendant’s
after
state
packet
powder
Bardley.
carceration or
(See
him.
contained
harass
Hicks,
650).
Amphetamine Hydro
known
353 Mo.
185 S.W.2d
as Dextro
delays
requested
Bardley
reported
purchase
were occasioned
chloride.
officers,
by under
facts there was
other
who returned to 5091 Del-
Yates, Montgomery
accused,
mar and
helpful
arrested
to the defense
an
Williams. When the officers knocked on or
is essential
fair determination
of a
cause,”
opened
States,
door Frankie
Williams
Roviaro United
353 U.S.
door. When the officers announced their
77 S.Ct.
1 L.Ed.2d
ifor
identity and
identity
undertook
arrest her she
disclosure
the informer’s
“is
necessary
slammed the door in their
and ran.
faces
to show the innocence of one ac
pursued
apart-
The officers
her into the
cused
a crime.”
Anno. — Disclosure
ment.
Identity
Yates threw
toilet
Informer,
two vials into a
speedy right confront the Under these tests and rules the against witnesses him.” The court over- may trial court not be convicted of ruled the motion. upholding abuse of in nondisclo discretion sure. The informer told officers who general As a rule communications made drug purchases selling was where governmental informers officials are Although this be made. informer privilege privileged. The founded something “tipster,” more than a mere public public policy interest in effec- accompanied in the officer —the By preserving premises, their with him and tive law enforcement. entered witnessed anonymity encouraged drug, citizens are to com- the sale of the there evidence is no police officers their municate to law informer introduced the of enforcement defendant, ingratiated crimes. ficer to the or him knowledge the commission of defendant, pro- self and designed not for the officer or so privilege protec- for the conducted himself as secure defendant’s tection of the informer States, confidence, as in v. Ed- v. United public tion interest. State Gilmore 446, Cir., 1958, 565; wards, 5 256 F.2d nor did l.c. Mo.Sup., 317 S.W.2d purchase, former himself make the There there cited. and authorities may States, supra, Roviaro v. United nor was the court exceptions to the rule necessary participant the informer an active compel appears “if disclosure Cir., crime, States, 5 Miller v. United testimo- false order to avoid the risk of testimony,” [2]; States ny 273 F.2d 281 United inor order secure useful Conforti, Cir., 1952, 365; 200 F.2d Sor 7 Wigmore Evidence, rev. (McNaughton States, Cir., 163 rentino v. United dis- VIII, 1961), Vol. § only nor was the informer identity the F.2d closure of the informer’s than to the transaction other relevant witness contents of the “is communication accused, surveillance, People reports as in relating and the to the investi- officer Diaz, gation Cal.App.2d P.2d 370. and arrest defendant. the evidence the informer Under Aubuchon, Mo.Sup., In State v. 381 S. who, bystander although a wit- merely a laid this Court down W.2d these transaction, nothing pro- did ness to the guidelines: state gener There is mote, encourage the com- participate al right discovery in criminal cases. He one three of the crime. mission opened The files are not to be witnesses. The mere nonparticipating up, blanche, carte In defendant. order at the physical presence of informer require report production aof to con- the crime is scene of sufficient satisfactory showing there must “a be that a cannot clusively establish * * * report is of such nature a fair trial without disclosure it, without the defendant’s trial would the informer. Miller v. United ** fundamentally This is unfair States, F.2d, appel- l.c. If supra, a discretionary resting in the first decision against innocent and state’s case lant is court, instance with with the trial claimed, complete fabrication, as him ais we if the trial later interfere court dependent upon the tes- entirely he was not abused that discretion. informer to establish his
timony of the associates, nonparticipation. Two of his appellant’s assigned in The reason Lloyd Montgomery, Frankie Williams production require motion these in a present position were ob- were reports were official busi testify transpired at the serve and what department— ness records of the allegedly made. Frankie time the sale original admissible under the evidence Uni Williams, placed by appellant, on the stand form Business Records Act. reasons testify ground on the refused to self-in- *6 assigned appeal Ap on this are different. appellant thereby crimination not pellant by denying now claims that him ac solely upon testimony dependent the left of cess to laboratory report, the etc. he was There was another inde- the informer. prevented properly preparing from his witness, pendent Lloyd Ap- Montgomery. criminologist cross-examination of the however, pellant, produce not did Mont- analyzed drug. complaint the This is not gomery or his deposition or show that his amplified or substantiated. Examination testimony was not available. While we of the 6-page cross-examination of the in- say testimony the cannot what criminologist indicate that appel does not might have been is former reasonable lant’s handicapped counsel in making accuracy (in view of the conclude appellant-suffered examination or that officers, con- gave he information from lack preparation therefor. theOn by subsequent events) that defend- firmed contrary inquiry by of the witness of the in- knowledge ant’s counsel intelligent, complete “of no service in would have been former searching. appellant’s inno- attempt establish cence, pub- but it would have affected Appellant now makes the further claim adversely.” People lic v. Gon- welfare that denying him police access 604, zales, 1956, Cal.App.2d P.2d reports of pre-arrest surveillance and arrest, 50, and in overruling his motion to
produce “any and all favorable evidence to defendant,” the de complains of he Appellant trial, was denied fair un der inspect Brady rule of Maryland, motion pretrial his 373 U. nial of 83, S. report, 1194, tests laboratory chemical S.Ct. 10 L.Ed.2d copy the suppression processes withholding by or technical and other examined, material police re possession evidence its exculpa powder seized tory to an requested and other accused who it is port of December process produc of due closes sufficient reason violative evidence guilt punishment. papers tion of is material either to these records. mo Brady appellant expedi In reversal tions were in the of fishing obtained nature suppression Blevins, on Mo.Sup., conviction the basis of the tions. State v. 421 S. particular paper writing. paper previous of a W.2d rulings Under the question extrajudicial statement of this was an court there was no abuse discre companion admitting overruling actual kill- tion them. ing charged, with which in Aubuchon Conceding that we held which statement came to his after notice States, U.S. v. United that Jencks had degree been convicted first mur- con is not 1 L.Ed.2d 77 S.Ct. In der. the case here for review courts, ap prosecutions in state trolling in fact, not specify particular report, does reappraisal of this rul for a pellant asks paper withholding or document the holding that an accused ing, and which is claimed to have violated his founda required lay preliminary rights. merely He surmises that “there inconsistency between showing an tion very contradictory well be evidence testimony reports and written Report the Police and Surveillance a suf prosecution, where witnesses helpful Memorandum which would be by their ficient foundation was established * * the defendant in his defense testimony reports related to events It apparent from this record these argues about which had testified. He motions upon were based not fact but require that to an accused first show hope, anticipation expectation testimony reports conflict between the some contradictory fact or might facts thus actuality is in a denial the accused of exposed, upon the basis of which the evidence material and de relevant to his state’s case be'weakened its wit- question fense. We have reconsidered the impeached. nesses There was no “satisfac- for a contra conclude the reasons tory showing that a report or statement of ry ruling given by Supreme Court of a witness in the hands the State [was] approved by Indiana and court in Au this of such a it, nature that without the de- buchon, S.W.2d, supra, 381 l.c. fendant’s trial fundamentally would be un- salutary. sound and We reaffirm our 1964 * * * fair ”; no showing that docu- ruling question. ments in the hands of the would im- *7 peach testimony the the state’s witness- Appellant’s complaint next is that es, required Aubuchon; as and no discharged venire should have been showing probable of the materiality any prior when ap to examination on voir dire paper in the prosecution, hands of the as pellant “paraded” past was the veniremen Crayton, Mo.Sup., required v. State while handcuffed. In view of the fact that Simon, 834; Mo.Sup. (en S.W.2d State judgment must be reversed for another 102; Hinojosa, banc), 375 State v. S.W.2d reason we need not decide the point, but on Gilliam, 1; Mo.Sup., S.W.2d State retrial of this case the law enforcement of 723; v. Aubu Mo.Sup., 351 S.W.2d permit ficers should not happen this to un S.W.2d, It is ob chon, supra, 381 l.c. 814. good less develops keeping reason appellant motions by filing that these vious defendant in Boyd, shackles. State v. Mo. material evi attempting to discover was Sup., 256 S.W.2d and cases cited. in to As we ruled favorable him. dence in again judgment last month State v. Aubuchon and of conviction must 46, there Coleman, reversed for Mo.Sup., sustaining 441 S.W.2d error in discovery objections in criminal state’s general right to reading portions is no discovery deposition of the rules in this state. No cases Frankie indi Williams cating she, rule that prescribed appellant, authorized been or made The record dis- the sale which subject in such cases. is the prose- or statute of this court, attend uncontrived ab deposition inability to was Frankie Williams’ cution. sence, counsel. etc. Frankie Williams by appellant’s When in this case taken against privilege self-incrimina testifying that voked deposition, after she In that herself as una tion at the trial she made appellant that he was with her knew gone if out of as were dead arrest- vailable she 1966when she was on December testimony wit of a ed, that the state. When the testified further Frankie Williams ness, produced open testify for in court to her appellant in the room with 20-30 was defendant, arrest; unavailable to de he came a becomes prior that minutes his invokes fendant because the witness money daugh- pick send some Christmas; privilege against constitutional self-incrimi that City ter to Kansas nation, necessity admission a arises for giving him “during the time was [she] * * * testimony from a given previously of his that money the man [she] * * * source, secondary in order that dealing with came in and [she] * * * In such case stuff, be accorded fair trial. got [she] [her] practical aas the witness is unavailable business”; transacting [appellant] testimony be re matter and his should around”; “sitting that she told Ed., Evidence, 3rd Wigmore ceived. wait; maybe get § a little more she Easterly, 354 Mo. enough Sutter v. money he so that would have privilege by 284; Anno. — Claim of buy ticket; round-trip that while he was criminal in justifying a witness as use came; waiting that she was testimony given on a former case of his present in ap- at all room times while examination, 45 trial or A.L. preliminary pellant was he present, from the time ar- R.2d 1354. The reasons well-stated arrested, rived until the he Stewart, 85 Kan. 116 P. State v. 489: at she saw “make no time testify “His voce refusal viva bottle, packet, sale of anything, en- he had information which made the velope, anything, anybody while was formerly given plaintiff as inaccessible placed in that room.” on the stand When juris-» if as he had been dead out Frankie Williams on advice counsel It is said diction of the sometimes court. testify ground refused on the self-in- testimony at a that the of a witness former crimination. appellant’s When counsel present at the trial cannot be read if he is sought deposition to use the the court sus- trial, depend admissibility its does not tained the objection deposi- state’s availability presence or so much on the incompetent, tion was irrelevant and imma- availability witness as it does on Appellant’s terial. counsel offered to read testimony testimony; of Stew and the jury questions answers con- just art unavailable as he had deposition tained offer line, process walked over the state objected state ground on the that there is * * * him. could not be served provision law admitting If a prevent witness cannot use deposition of a witness is present *8 testimony by jurisdic- stepping outside court testify and person. able in court, acquiring tion of the an (It court objection. sustained the interest, disqualifies or other act which stipulated deposition sought be witness, appear him as a it that he would true, used a copy accurate of the wit- testimony given cannot defeat the use of testimony.) ness’ re- competent, when he was and which was statutory writing, duced a by claiming specifies six 492.400RSMo 1959 Section and privilege refusing testify voce viva read depositions be in situations which when called On witness stand.” in as the witness were evidence if used deposition new trial the of Frankie Wil- They open in present and court. examined liams, offered, in unavailability, shall be evi- such received situations death, state, physical dence. residence outside question as fore, not decide the should deposi- we the exclusion of
Because of motion to refusing defendant’s in error sen- judgment tion the of conviction to him on produce evidence favorable and set aside tence is reversed specify advance in he is able whether trial. remanded for new cause is attempting he is wants. what he Whether exactly expedition” or knows “fishing CC., HIGGINS, con- WELBORN and change the not police have does what the cur. pros- principle that the basic constitutional favorable in- fail disclose ecution cannot PER CURIAM. does, failure if it and that formation the conviction. will invalidate HOUSER, foregoing opinion by C., adopted opinion is as the of the court. is example, that defendant Assume for defense murder and that his
charged with Assume acted in self defense. that he is HENLEY, STORCKMAN, J.,P. J., entirely to defendant unknown further that concur. eye across the street an witness there was entire who saw the upstairs window SEILER, J., concurs in sepa- result in testify to facts would . affair opinion rate filed. act- defendant was show that which would po- Suppose defense. ing in self and a this witness lice the name of SEILER, Judge result). in (concurring example if In this statement from him. I concur in the result by reached production moved for defendant opinion main in reversing and remanding was fa- in files which evidence for a new trial reason of the error in acting merely be to him he would vorable the exclusion of the dep- Frankie Williams being demon- hope and without able to osition. application. any basis for his Yet strate not to justice miscarriage would be However, I must respectfully disagree a witness who to defendant make available portion with that opinion up- which might establish his innocence. holds the refusal of the trial court to re- quire the state produce evidence favor- evi- to disclose favorable say failure We able to the defendant. process, not with due dence is consistent rule practice qualify we Under law as declared in State v. it un- prosecution to live forcing Thompson (Mo.Sup. banc) specify what it can less defendant Brady Maryland, 373 U. following withholding favor- prosecution is 10 L.Ed.2d S. 83 S.Ct. able. Maryland, S.Ct. 386 U.S. Giles “* * * Therefore, that we must it seems to me suppres 17 L.Ed.2d right in make effective constitutional (or disclose) failure to evidence sion of not to be convict- prosecution which possession control of the requiring the process by due ed without to defendant and which is favorable motion, produce the file prosecution, on jury, constitutes persuasive the trial inspection for the camera to invali unfairness as a fundamental such can examine the judge judge. of due The trial because violative date conviction *” * * production of evidence file and order essential process. The first *9 prosecution possession control of favorable evi the existence of the rule is the defendant If favorable to prosecution. which is in the hands of dence This jury. persuasive regardless of which it does so exists the evidence need prosecution not mean that the There- does it. knows of defendant whether does defendant but it open its file to the pro- can have the
mean that looking at the impartial judge of an
tection that defend- seeing file and
prosecution’s protected rights are
ant’s constitutional regard. Missouri, Respondent,
STATE FIELDS, Appellant.
James Marvin
No. 54003. Missouri,
Supreme Court No. 2. Division
June