State v. Tiedt

229 S.W.2d 582, 360 Mo. 594, 1950 Mo. LEXIS 624

• Court: Supreme Court of Missouri
• Decided: April 10, 1950
• Docket: 41631
• Status: Published

Opinions

DALTON, J.

Defendant has appealed from, a conviction and sentence for murder in the first degree.. Punishment was as-sessed at death. This is defendant’s second appeal.. On the-.first appeal this court reversed a conviction and sentence imposing a like punishment and remanded the cause for a new trial on account of inflammatory and prejudicial arguments of the assistant prosecuting attorney. State v. Tiedt, 357 Mo. 115, 206 S. W. (2d) 524.

The information charged defendant with the first degree murder of Fred Matchett in Buchanan County, Missouri, on November 25, 1945, by shooting him with a shotgun. The'State’s evidence showed that when defendant killed Fred Matchett, he also killed Fred Matchett ’s brother and sister-in-law, The sufficiency of the State’s evidence to make out a submissible case of murder in the first degree-is not questioned. In view of the. assignments of error presented on this appeal, a detailed statement of the. facts is not required. It is sufficient to say that-the essential facts of the State’s, ease were substantially as stated-in the prior opinion of . this court.

Defendant did not testify at the second trial, but offered in evidence a written and signed statement, which he gave to the police and prosecuting officer on the day of his arrest. The statement was identified and, without objection,, the circumstances of its execution were fully shown by the Statens evidence. - The State did not offer the exhibit in evidence .and, when offered by defendant, it was received in evidence without objection. This statement, mentioned in the prior opinion, was in question and answer form and purports to cover-in some detail the relationship of defendant and the Delbert Matchett family and the detailed circumstances leading up to, as well as those attending, the death of the three-Matchetts. Other facts necessary to a disposition of the errors assigned will be stated in the course of the opinion.

Error is assigned on the court’s action in overruling defendant’s challenge for cause as to jqror .Hugh H. Madden and error is further assigned on the court’s interrogation of this juror by-leading questions. The juror was examined at length by counsel for the State and for defendant. He indicated that he had formed an opinion, based solely on “general newspaper reports”; that it was not a fixed opinion, but would influence his judgment and take evidence to remove it; and that it would be impossible for him to be fair and impartial in the case. He also made statements in conflict with this testimony and said he thought he could go into the trial with an open mind and not be “guided by anything but the evidence and the instructions.” Thereafter, the court examined the juror at some length and the juror’s answers to all questions by the court tended to show a fully qualified juror. The court did not err in asking leading questions or in overruling the challenge for cause. No objection was interposed at the time to the court’s method of conducting the examination. The trial court saw and heard the juror testify during the prior examination by the respective attorneys. To finally determine the matter the court made his own examination. Considering the full record of the voir dire examination of this juror, which examination covers some five and one-half pages of the transcript, no error or abuse of the court’s discretion appears. Sec. 4060 R. S. 1939; State v. Burns, 351 Mo. 163, 172 S. W. (2d) 259, 267; State v. Wampler (Mo. Sup.), 58 S. W. (2d) 266, 268.

Appellant contends the court erred in admitting in evidence the testimony of State’s witness • Stropes (when recalled) “relative to the matter of time of calls.” Appellant says that “it appeared from the witness’s testimony that he was merely reading from a record añade by soaneone else, which he did not know to be correct aaad which did not in aaay way refresh his memory so as to give him the right to testify of his own knowledge. ’ ’

The questioned evidence appears in conaiection with an effort to properly identify an exhibit offered by the State. The exhibit was objected to by defendant. and was subsequently withdrawn. The record fails to show aoiy objection at any time to aaiy of the evidence now coanplained of and no such error is referred to in the motion for a new trial. Appellant may not now coanplain. State v. Hepperman, 349 Mo. 681, 162 S. W. (2d) 878, 888; State v. Preston (Mo. Sup.), 184 S. W. (2d) 1015, 1017; Sec. 4125 R. S. 1939. The record does show that, after the questioned evidence was before the jury without objection, the ■ defendant moved “to strike all of the testimony of this witness” on the ground that he had atteanpted to refresh his meanory from a document not properly identified and not offered iaa evidence. The motion was overruled and this ruling is complaiaied of in the motion for a new trial, but appellant does not now complain of error in ruling the motioai to strike.

The witaiess first testified that he was in a squad car at the Uaaion Station when he received a ' police broadcast'‘ ‘ about 12 ;45 a.m., ’ ’ November 25, 1945. He proceeded at once to the Matchett residence and arrived “within a half second” behind another car from the police station that stopped in front of defendant’s residence. On cross-examination he subsequently fixed the time of receipt of the call as 12:29 a. m. and he was requested to produce a radio log book from the police station. On being recalled to the witness stand he refreshed his recollection from the radio log book, which he said was a government record required to be kept by the police department for the Federal Communications Commission, but which was written up by operator Morgan Jones. He said that he had been confused by a 12:29 a. m. call, which had nothing to do with this case, and that the call to the Matchett residence was received by him at 12:44 a. m. The exact time of the radio broadcast or his receipt of the call was immaterial to any issue in the case. No prejudicial error appears from the court’s action in overruling the motion to strike, or otherwise in connection with this evidence.

Appellant contends that the court erred in excluding the testimony of “defendant’s witness Gritz to the effect that, after having been threatened by his neighbor Matchett, the defendant appeared excited, upset and unnerved.” Appellant says the evidence was material and of “the type of evidence that must be shown by a person’s appearance, in that the little things observed cannot all be detailed, but rather, it must come out, as a general impression of the witness as to the appearance of the one he is observing.” State v. Stewart, 274 Mo. 649, 204 S. W. 10, 13; State v. Ferguson, 278 Mo. 119, 212 S. W. 339, 343; State v. Wilkins (Mo. Sup.), 100 S. W. (2d) 889, 893.

Defendant offered to show by witness Gritz that “approximately five or six weeks before November 24 or 25, 1945, on a Sunday while this witness was in the company of the defendant, that he learned •from the defendant of a discussion which the defendant had had with Matchett. That this witness observed the appearance and the demeanor of defendant Tiedt at that time, and it was the impression of this witness that defendant- Tiedt was disturbed, worried, he was excited and was alarmed.” Appellant insists that the excluded evidence showed defendant’s fear of violence to himself, that it could be considered in fixing punishment and that “the background of previous conversations between defendant and his neighbor were important to show the state of mind of the defendant. ’ ’

Before this offer was made Gritz had testified that, when he saw the defendant on the afternoon and evening of November 24, 1945, defendant seemed natural, didn’t appear to have anything unusual on his mind and had said nothing about the Matchetts. Gritz also testified that he knew nothing of any trouble between defendant and the Matchetts except what defendant had told him. The tendered evidence was properly refused. There was no evidence in the record tending to show defendant had ever had any prior difficulty with the Matchetts; or that defendant’s alleged condition was in any manner due to defendant’s relationship with them. The offer would have shown the relationship only by hearsay. Any such statements by defendant were purely self-serving and inadmissible. State v. Wright, 352 Mo. 66, 175 S. W. (2d) 866, 871; State v. Perkins (Mo. Sup.), 92 S. W. (2d) 634, 638. Nor was the evidence admissible on any theory or res gestae. State v. Stallings, 334 Mo. 1, 64 S. W. (2d) 643, 645.

- Appellant contends that the court erred in refusing1 defendant’s Instruction F. Appellant says that the instruction “properly declared the law relative, to the right to receive the benefit of the doubt as to the severity of punishment”; that, if defendant was guilty of murder in the first degree, “he was entitled to the benefit of a reasonable doubt * * * as to 'whether he should be given the death penalty or given a life sentence ’ ’; and that the '“same benefit of reasonable doubt should apply in fixing punishment as well as in determining whether any punishment should be assessed. ’ ’ State v. Anderson, 86 Mo. 309 and 2 Raymond, Missouri Instructions, 663, Sec. 6241 are cited, and see State v. May, 172 Mo. 630, 649, 72 S. W. 918. The authorities do not aid appellant.

The instruction was properly refused. If, under the evidence and instructions of the court, the jury found defendant guilty of murder in the first degree, it was for the jury to fix the punishment. The matter of punishment, within the limits fixed by the statute, was solely within the discretion of the jury under all of the facts and circumstances in evidence. Sec. 4378 R. S. 1939; Sec. 4092 R. S. 1939; State v. Bevins, 328 Mo. 1046, 43 S. W. (2d) 432, 434; State v. Creighton, 330 Mo. 1176, 52 S. W. (2d) 556, 563; Ex parte Dusenberry, 97 Mo. 504, 11 S. W. 217. No question of reasonable doubt was involved in tbe matter of assessing the punishment. People v. Krauser, 315 Ill. 485, 146 N. E. 593, 605.

Appellant contends that the court-“erred in overruling objections and in failing to reprimand counsel and in failing to declare a mistrial and discharge the jury on account of “certain improper and prejudicial argument which appellant contends “constituted a direct reference to and a comment on the fact that the defendant-had failed to take the witness stand on his own behalf.” A brief statement of the circumstances attending the mentioned argument is required. In this connection, we must sustain appellant’s motion to have the full and complete arguments to the jury of all counsel in the ease included in the bill of exceptions and record. We believe that such is necessary to properly rule this assignment.

In his opening statement to the jury, defendant’s counsel called the jury’s attention to the fact that defendant had testified in his own behalf in the first trial. Counsel stated: ’ 1 ‘ The defense evidence will not be merely a re-hash of the previous evidencé. I do not mean by that Mr. Tiedt is going to change his story, or that he is going to tell any different stories from the one he told the officers and the Prosecuting Attorney at the police station, and told the Court on the witness stand before. * * * It is' admitted in this case that Mr. Tiedt did actually kill Fred Matchett, Delbert Matchett and Mrs. Delbert Matchett. There is no dispute about that point'. There is no dispute he killed with a shotgun; that they were killed intentionally and not accidentally, and that at the time they were killed, they actually had no weapon upon them. * * * Those facts are admitted and the case begins at that point. * * * Therefore, the Jury need not worry whether Tiedt killed the Matchetts — we admit that, but our lawsuit is why and under what circumstances. * * • * It is true that after Tiedt had fired 3 shots, he reloaded his guñ and came back out and stood in plain sight. After a while he took the gun in the house and came back out and stood in front of his house in plain sight until the officers came up and arrested him.” (Italics ours).

Stanley Dale, counsel for the defendant, in his árgument to thé jury said: , “We would like to mention the fact that Chptain Andrews identified the Exhibit, wliich was a statement of Charles Tiedt given at the police station in which he told how' it happened; what caused it to happen and in which he covered the entire matter of this occurrence ; and yet — Gentlemen of the Jury, it was left to the defense to introduce this statement into testimony. We do not ask why they did not. We leave that up to you. *' * * This was not good enough for the prosecuting attorney to introduce in evidence, but we introduced it into evidence because we believe this is the true story of this case; that this is exactly how this killing happened and how it occurred. * * * It is the defense’s own theory of how it happened. * * * Gentlemen, that was the defendant’s-version of this ease * * * he further stated in this statement that it was. the truth and we feel it should be considered as a correct version of this occurrence.” Defendant was referred to as “this man sitting here today” and questions and answers in his statement were pointed out to the jury.

' In reply Mr. Duvall, Assistant- Prosecuting Attorney, argued: “Mr. Dale complained of the fact we didn’t introduce Tiedt’s statement in evidence. Isn’t that a crime men? :Of course his statement was taken. We didn’t have any idea but what they would put him on the stand and we could have cross examined him. ”

Defendant’s counsel thereupon objected"on the ground that the comment was ‘ ‘ directed toward the failure of defendant to testify in his own behalf.” A mistrial was asked for and that'-the jury be discharged. No other relief was asked. The request was denied. Thereafter, the Court said to the jury: “The instructions which were read to you contain the law in this case. * * * Arguments of attorneys in a case are not evidence * * * The Court, Mr. Duvall, asks you to keep within the record and with the law. As to the rights of this defendant, the counsel for the defense should recognize that an attorney for the State has certain rights in answering arguments concerning your case * * * the jury will disregard the last few remarks of the counsel for the State * * The motion for a mistrial and to discharge the jury was renewed and denied, but no other relief was asked.

Section 19, Art. 1 of the Constitution of Missouri provides that “no person shall be compelled to testify against himself in a criminal cause.” Section 4082 R. S. 1939, provides that the failure of an accused person to testify on his own behalf shall not “be referred to by any attorney in the ease, nor be considered by the court or jury before whom the trial takes place. ’ ’

Appellant has cited these provisions and also the following cases: State v. Robinson (Mo. Sup.), 184 S. W. (2d) 1017 (where timely and proper objection was made and overruled to “a pointed reference to the fact that the defendant had not testified” and where there was no waiver or cure); State v. Conway, 348 Mo. 580, 154 S. W. (2d) 128, 132 (where the court permitted cross examination of defendant to show defendant had not testified in her preliminary trial and, further, permitted an argument to be made thereon); State v. Shuls, 329 Mo. 245, 44 S. W. (2d) 94, 96 (where a pointed and intentional reference was made to defendant’s failure to testify and where it was accentuated by the court’s instruction and where the inevitable effect of the argument was to suggest that an unfavorable inference should be drawn); State v. Watson (Mo. Sup.), 1 S. W. (2d) 837, 840 (where after the court sustained an objection to a direct reference, the prosecuting attorney continued to allude to the failure of defendant and his wife to testify): State v. Dodo (Mo. App.), 253 S. W. 75, 76 (where there was no apology and no withdrawal and where a direct statement by the court, that defendant was not compelled to take the stand, accentuated the error); State v. Drummins, 274 Mo. 632, 643, 204 S. W. 271, where there was a direct reference to defendant’s failure to say anything and no reprimand and no direction to disregard); State v. Snyder, 182 Mo. 462, 523, 82 S. W. 12 (where the prosecuting attorney persistently called attention to defendant’s failure to testify and the remarks of the court “accentuated the allusion” by direct reference to such failure to testify); State v. Moxley, 102 Mo. 374, 392, 15 S. W. 556 (where the language used “was simply an adroit and insinuating attempt, indirectly to accomplish what could not have been accomplished by direct statement” and where the purpose of the attempt was manifest). These authorities are not necessarily controlling under the facts in this ease.

While Sec. 4082, supra, is mandatory, the established rule in this state is that a defendant’s privilege under both the constitutional provision and the statute is personal and can be waived by him. State v. Mosier (Mo. Sup.), 102 S. W. (2d) 620, 627. When the protection afforded by Sec. 4082, supra, has been infringed, the error in some instances may be cured by a timely and adequate rebuke or by an instruction from the Court. State v. Conway, supra; State v. Shuls, supra; State v. Fitzgerald, 130 Mo. 407, 436, 32 S. W. 1113; State v. Taylor, 134 Mo. 109, 157, 35 S. W. 92. In State v. Watson, supra, it was pointed out that “A record may present a state of facts and circumstances permitting'the court to say that an allusion to the failure of defendant or his or her spouse to testify was not prejudicial error * * (Italics ours) (1 S. W. (2d) 837, 840). It is well settled that 1 ‘ an attorney for defendant cannot provoke a reply to his own improper argument and then complain of error.” State v. Tiedt, supra, 206 S. W. (2d) 524, 527. Where the argument complained of on appeal is retaliatory in nature and invited by the remarks and suggestions of appellant’s counsel an assignment of error thereon will not be sustained. State v. Pinkston, 336 Mo. 614, 79 S. W. (2d) 1046; State v. Kaner, 338 Mo. 972, 93 S. W. (2d) 671, 674; State v. Smith (Mo. Sup.), 300 S. W. 1081, 1083; State v. Harmon, 317 Mo. 354, 296 S. W. 397, 400. It is further true that “the State’s counsel can go further by way of retaliation, in answering arguments of defendant’s counsel, than he would be authorized to do in the first instance.” State v. Beasley, 353 Mo. 392, 182 S. W. (2d) 541, 544. Whether or not a particular improper argument is so prejudicial under the facts in the particular case, as to necessitate a reprimand of counsel or a discharge of the jury, is .largely within the discretion of the trial court. An appellate court will not interfere unless the record shows that the trial court abused its discretion to the prejudice of the appellant. State v. Lynn (Mo. Sup.), 23 S. W. (2d) 139, 141; State v. Shilkett, 356 Mo. 1081, 204 S. W. (2d) 920.

In this ease appellant’s counsel offered in evidence and read to the jury appellant’s statement giving in detail his version of the killing. We have set out some of counsel’s argument with reference to that statement. In making the argument set out, in reviewing the facts set forth in the statement, in referring to “this man sitting here today” and to the statement as “defendant’s version of this ease,” counsel necessarily and impliedly, we believe, called attention to the fact that appellant had not testified in this case. Subsequently, counsel referred to the statement as defendant’s “testimony at the police station” and said “we wanted you to have all the information at our disposal. ’ ’ Each attorney for defendant argued the statement-as true and one argued, “you might say that anybody who would shoot three people would lie under oath, ’ ’ but he insisted the statement was true. Under the circumstances of this case, the argument that the statement was “the true story of this case” and “the defense’s own theory of how it happened,” when counsel had already told the jury that defendant had testified in the first trial, was to impliedly and by inference and indirection make it clearly apparent to the jury that defendant had not testified in this trial. Further, counsel for1 defendant challenged counsel for the State: ‘‘ Gentlemen of the Jury, it was left to the defense to introduce this statement into evidence. We do not ask why they did not. We leave that up to you.” Such an argument called for an answer, asked for an answer and an answer was to be expected. Counsel for the State was entitled to reply.- In due time the answer came: “We didn’t have any idea but what they would put him on the stand and we could have cross examined him. ’ ’ The jury had already been informed that defendant had testified at the first trial. Later, they learned from defendant’s counsel that the judgment on the first trial was reversed on account of improper argument.

The court denied the request to discharge the jury or grant a mistrial. The court further excused the jury, asked counsel, “what in the world were you thinking,” then recalled the jury and directed the jury to disregard “the last remarks of counsel for the State.” The motion for mistrial was renewed and overruled, but there was no request for reprimand or other relief. Thereafter, counsel for defendant continued to argue defendant’s story as the truth or “pretty close to being true,” and the State’s failure to offer the statement. Counsel insisted “there wasn’t anything in there about cool, calm, deliberate, with malice aforethought.”

The trial judge heard all the arguments and statements as made before the jury. He saw and observed the manner in which the argument was made and answered. He overruled the motion for a new trial on this point, saying: “The Court at the time felt, and feels now, that attorneys for the defendant in their zeal to faithfully perform their duty * * * threw down the bars and manifested the fact defendant did not personally take the witness stand. This was done by inference and * * * if there was any error, same was invited by the attorneys for the defense. ’ ’ .

Under all the facts and circumstances shown by this record, we think there was a waiver of appellant’s right of non-reference under the statute; that the reply, as made, was invited; that there was no abuse of the court’s discretion in ruling the matters presented; that there was no prejudice to appellant; and that appellant, on this record, is in no position to claim the protection of the statute, nor to complain of the court’s failure to declare a mistrial. The assignment is overruled.

Finally, error is assigned on alleged improper, • inflammatory and prejudicial argument of Assistant Prosecuting Attorney Louis V. Stigall and on the court’s failure to sustain objections, reprimand counsel or grant a mistrial. .It is contended that substantially the same argument was condemned in State v. Tiedt, supra. The specific part of the argument complained of is not set out in the motion for the new trial, nor definitely and specifically referred, to therein. The motion does state: “All of it was prejudicial and inflammatory. It was a stubborn, arrogant, perverse and coldly calculated attempt to bias, prejudice and inflame the jury.” (Italics-ours).

Most of Mr. Stigall’s argument was made without objection. Some parts were objectionable and some were not, Only an occasional objection was interposed. Some objections were sustained and no further relief asked and some were overruled. In such situation the assignment of error in the motion for a new trial was ’wholly insufficient and too general to preserve anything for review. This court is not required to search the record and determine what particular part of the argument was intended to be complained of. Sec. 4125 R. S. 1939; State v. Bagby, 338 Mo. 951, 93 S. W. (2d) 241, 248; State v. James, 318 Mo. 525, 1 S. W. (2d) 137, 139; State v. Vesper, 316 Mo. 115, 289 S. W. 862, 864. The assignment is overruled.

Finding no reversible error in the record presented, the judgment is affirmed.

Gonkling, Clark, JJ., and Hyde, G. J., concur; Ellison, J., dissents in separate opinion filed; Leedy and Tipton, JJ., dissent and concur in dissenting opinion of Ellison, J. -