State v. McGee , 447 S.W.2d 270 ( 1969 )

DONNELLY, Judge.

Defendant, James Edward McGee, was convicted of murder in the second degree, under § 559.020, RSMo 1959, V.A.M.S., in the Circuit Court of the City of St. Louis, and his punishment under the provisions of the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S., was assessed at imprisonment in the custody of the State Department of Corrections for a term of fifty years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

We first consider defendant’s contention that the jury verdict is unsupported by the evidence. According to the evidence, the victim, Ida Mae Rooks, was stabbed at the corner of Grand and Page in the City of St. Louis, at approximately 8:30 P.M., February 20, 1967. She was dead on arrival at the hospital. Death was caused by “stab wounds.” Defendant left the Harlem Tavern with Ida Mae Rooks at 8:15 P.M., February 20, 1967. One witness, who lived at 3603 Page, testified she heard a cry for help, looked out her apartment window, saw a woman and man struggling, and saw the man striking the woman. Another witness testified he looked out a window of a Chinese restaurant at the corner of Grand and Page, saw a man and woman struggling, and identified defendant as the man at the trial. The evidence is sufficient to support the verdict of guilty.

The next question for determination is whether a jury verdict of eleven citizens is constitutionally valid. On the second day of trial, one of the twelve jurors suffered a seizure and was hospitalized. Defendant wished to proceed with the trial and a memorandum was prepared and signed by defendant, by both lawyers, and by the trial court (See State v. Butler, Mo.Sup., 415 S.W.2d 784). Defendant contends that the verdict of guilty rendered by less than twelve jurors is a nullity. He is supported in this contention by State v. Mansfield, 41 Mo. 470 (1867), State v. Meyers, 68 Mo. 266 (1878), and State v. Sanders, Mo.Sup., 243 S.W. 771 (1922).

These cases were decided prior to the adoption of our 1945 Constitution. Article I, § 22(a), Const, of Mo., 1945, V.A.M.S., reads as follows:

“That the right of trial by jury as heretofore enjoyed shall remain inviolate; provided that a jury for the trial of criminal and civil cases in courts not of record may consist of less than twelve citizens as may be prescribed by law, and a two-thirds majority of such number concurring may render a verdict in all civil cases; that in all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict; and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury.”

The provision, “that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury,” first appeared in the 1945 Constitution. We must determine its effect.

In Singer v. United States, 380 U.S. 24, at 33 and 34, 85 S.Ct. 783, at 789, 13 L.Ed.2d 630 (1964), the unanimous Supreme Court of the United States cited Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), with approval, as follows :

“The issue whether a defendant could waive a jury trial in federal criminal cases was finally presented to this Court in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. The Patton case came before the Court on a certified question from the Eighth Circuit. The wording of the question, id., at 287, 50 S.Ct. at 254, is significant:

‘After the commencement of a trial in a federal court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to further proceed with his work as a juror, can defendant or defendants and the government through its official representative in charge of the case consent to the trial proceeding to a finality with 11 jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of 12 men?’

The question explicitly stated that the Government had agreed with the defendant that his trial should proceed with 11 jurors. The case did not involve trial before a judge alone, but the Court believed that trial before 11 jurors was as foreign to the common law as was trial before a judge alone, and therefore, both forms of waiver ‘in substance amount[ed] to the same thing.’ Id., at 290, 50 S.Ct. at 255. The Court examined Art. Ill, § 2, and the Sixth Amendment and concluded that a jury trial was a right which the accused might ‘forego at his election.’ Id., at 298, 50 S.Ct. at 258. The Court also spoke of jury trial as a ‘privilege,’ not an ‘imperative requirement,’ ibid., and remarked that jury trial was principally for the benefit of the accused, id., at 312, 50 S.Ct. at 263. * * *” Thus, the federal rule is that a defendant may waive the privilege of trial by a jury of twelve men.

We recognize that the provisions for jury trial in the United States Constitution are not the same as those stated in the Constitution of Missouri. However, we are persuaded by the following language from Patton v. United States, supra, 281 U.S. 276, at 290, 50 S.Ct. 253, at 255: “It follows that we must reject in limine the distinction sought to be made between the effect of a complete waiver of a jury and consent to be tried by a less number than twelve, and must treat both forms of waiver as in substance amounting to the same thing. In other words, an affirmative answer to the question certified logically requires the conclusion that a person charged with a crime punishable by imprisonment for a term of years may, consistently with the constitutional provisions already quoted, waive trial by a jury of twelve and consent to a trial by any lesser number, or by the court without a jury.”

We agree that complete waiver of a jury and consent to be tried by less than twelve jurors in substance amount “to the same thing.” We construe the provisions of Art. I, § 22(a), supra, as they apply to criminal cases, to mean that “the right of trial by jury as heretofore enjoyed shall remain inviolatebut that:

(1)In every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, or may, with the assent of the court, waive a jury of twelve citizens and submit the trial of such case to a jury consisting of less than twelve citizens; and

In courts not of record, a defendant may be tried, without his waiver or consent, by a jury of less than twelve citizens if such procedure is prescribed by law.

We hold that the jury verdict, rendered by eleven citizens in this case, is constitutionally valid. The Mansfield, Meyers and Sanders cases, supra, should no longer be followed.

Defendant next contends his constitutional rights to a speedy trial were denied. The crime was committed February 20, 1967. The information was filed May 17, 1967. The trial commenced October 9, 1967. The point is without merit.

Defendant next contends his “constitutional rights to obtain witnesses were violated.” He states that because “of his incarceration pending the trial of this case, [he] was unable to return to the neighborhood * * * to seek out and learn the identity of the persons he had been with in order to secure process to compel their attendance at the trial.” We reject this novel contention without further comment.

Defendant next contends that his “rights to a trial by an impartial jury were violated” because “the judge exchanged pleasantries and engaged in conversations with various members of the jury from the bench.” We have searched the record and have found nothing which could have prejudiced defendant. The point is without merit.

Defendant next contends that the trial court erred in admitting into evidence statements made by him to police officers at the time of his arrest.

Roger Baldwin, the arresting officer, testified as follows:

“Q. And after you told him he was under arrest, did you advise him of his constitutional rights ? A. I did.

Q. What did you say to him ?

A. I advised him he was under arrest suspected of murder. I told him he had the right to remain silent, that any statement made by him would be used against him in a court of law. I advised him of his right to have counsel, his right to have counsel present while being questioned, and if he could not afford an attorney, one would be furnished by the court, if he so desired.

Q. And at that time, did he indicate in any way he wanted a lawyer? A. No, he did not.

Q. Did he indicate in any way he didn’t want to talk to you ?

A. No, he did not.

Q. After you so advised him and placed him under arrest did he say anything at that time?

A. He stated words to the effect, why do you want me, what do you want me for.

Q. Did he say anything else at this time?

A. I asked him where he had been at that evening. He stated he had come straight home from work and hadn’t left the house.

Q. At the time you placed Mr. McGee under arrest, what was he wearing? A. He was in his underclothing.

Q. And prior to your conveying him from that location, did you have him get dressed? A. I did.

⅜ ⅜ ⅜ * ⅜ ⅜

Q. When you told Mr. McGee to get dressed, did he say anything about his clothing? A. No, sir.

Q. Did you ask him anything about his clothing ?

A. Yes. I observed some clothes in a chair at the foot of the bed, and I asked him if these were the clothes that he had been wearing, and he stated, yes.”

In Miranda v. Arizona, 384 U.S. 436, at 444, 86 S.Ct. 1602, at 1612, 16 L.Ed.2d 694 (1966), the Supreme Court of the United States stated that “the prosecution may not use statements, whether exculpatory or in-culpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. * * * The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. * * * ”

The Supreme Court of the United States further stated in 384 U.S. 436, at 475, 86 S.Ct. 1602, at 1628:

“If the interrogation continues without the presence of an attorney and a statement is taken a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.

“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:

‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’ ”

We hold that, although the Miranda warnings were given to defendant, there is nothing in the record to show a Miranda waiver of the privilege against self-incrimination and right to counsel. Cf. State v. Auger, Mo.Sup., 434 S.W.2d 1; Anderson v. State, 6 Md.App. 688, 253 A.2d 387 (and cases cited); People v. Johnson, 75 Cal.Rptr. 401, 450 P.2d 865 (and cases cited); State v. Kremens, 52 N.J. 303, 245 A.2d 313; and 19 Am.Jur., Proof of Facts, § 23. The admission of Officer Baldwin’s testimony, supra, constitutes federal constitutional error under Miranda.

However, based on the evidence in the record of this case, we are “able to declare a belief that * * * [the federal constitutional error] was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn.L.Rev. 519 (1969).

Defendant, voluntarily and of his own free will, elected to testify in his own behalf. He testified, on direct examination, as follows:

“Q. Mr. McGee, when the policeman woke you up, could you recognize any of the policemen that came into your place there as having been the men here in court? A. I recognized only one.

Q. Did the officers say anything to you ? A. They did.

Q. And what was said?

A. They said, ‘We would like to take you down to the station to talk to you’, and I inquired about what they said. — Homicide; I said, ‘what do you want me for?’ They said, ‘we just like to investigate and talk to you about the murder of Ida Rooks.’

Q. Up to that time, Mr. McGee, had you ever heard from anybody anything about Ida Rooks being dead? A. No, I didn’t.

Q. What happened after that ?

A. Well, after, or before we left the house, the police asked me did I have a girl friend. I said, ‘yes.’ I told him her name was Ida Rooks, and then in the process of me getting up, they were saying something, because I don’t know what it was, I was awake, but I just don’t know what it was. They asked me, say, ‘are these your clothes here that you wore today ?’ and I say, ‘yes.’ They said, ‘we would like for you to put them on.’

Q. Did you do that ? A. I did.

Q. And did you go with the officers? A. I did.”

In this situation, could defendant possibly be constitutionally prejudiced by Officer Baldwin’s testimony? We think not. We hold that a defendant may not testify to facts, complained of as self-incriminating when elicited by the prosecution, and then successfully assert that he has been deprived of a fair trial.

In Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900), a case not applicable on the facts but persuasive here, the Supreme Court of the United States said at 476, 20 S.Ct. at 1000: “It would be trifling with the administration of the criminal law to award * * * [the defendant] a new trial because of a particular error committed by the trial court, when in effect he has stated under oath that he was guilty of the charge preferred against him.”

In Murray v. United States, 53 App.D.C. 119, 288 F. 1008, cert. denied, 262 U.S. 757, 43 S.Ct. 703, 67 L.Ed. 1218 (1923), the Court cited Motes v. United States, supra, and said at 1014:

“Not only this, but the defendant, when upon the stand in his own behalf, testified to substantially the same facts, although more in detail, as related by the witness, and in addition said that he made the statement to the officer that the latter said he did. This would cure the error in receiving the evidence, if any there were. ⅜ ⅜ ⅜ »

A similar rule is followed in Missouri. State v. Ussery, 357 Mo. 414, 208 S.W.2d 245, 246, 247; State v. Brown, Mo.Sup., 404 S.W.2d 179, 182; State v. Walker, Mo.Sup., 416 S.W.2d 134, 140.

In Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1925), a case not applicable on the facts but persuasive here, the Supreme Court of the United States said at 499, 46 S.Ct. at 568:

“The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf, and not for those who do. * * * We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial, or to any tribunal, other than that in which the defendant preserves it by refusing to testify.”

The judgment is affirmed.

HENLEY, C. J., and FINCH and HOLMAN, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. MORGAN, J., dissents and concurs in separate dissenting opinion of SEILER, J. STORCKMAN, J., absent.