Beishir v. State ( 1975 )

HOLMAN, Judge.

In December, 1966, movants (hereinafter referred to as defendants) were convicted of second degree murder and their punishment was fixed by the court (under the provisions of Section 556.280 V.A.M.S.) at life imprisonment. Upon appeal we affirmed. State v. Umfress, 433 S.W.2d 284 (Mo.1968). Thereafter the defendants filed a motion to vacate the judgment under Rule 27.26 V.A.M.R. The trial court held an evidentiary hearing and made findings adverse to defendants and overruled the motion. Defendants have duly appealed from that order and judgment. We affirm.

The principal questions presented on this appeal relate to an alleged interference by the prosecuting attorney in compliance with a subpoena duces tecum by Dr. Leroy Rook, a prison psychologist.

At the trial of defendants the two principal witnesses for the state were Ray Warren and Roger Turnbough who were inmates of the penitentiary. Defendants, also inmates, were charged with killing another inmate, James Hawkes. Apparently defendants’ attorney desired to make an effort to impeach Warran by presenting expert evidence that he would not tell the truth. To that end a subpoena duces tec-um was served on Dr. Rook ordering that he produce “all records of care and treatment of Ray Warren.”

Defendant Beishir testified that on one day of the trial he was conveyed to the courthouse in the same automobile as Dr. Rook; that upon arrival Dr. Rook, who was carrying a thick file, went into the office of the prosecuting attorney; that when Dr. Rook testified he only had two pieces of paper. An offer of proof was made that in August, 1967, this witness had a conversation with Dr. Rook who told him that before testifying he had gone into the office of the prosecuting attorney; that the prosecutor had taken some of the records out of the files and that he was concerned about the incident. An objection was sustained to that offer. This witness also testified that he knew that following the September, 19S4, riots which occurred at the penitentiary, two inmates who testified for the state in subsequent prosecutions were released by commutation of the Governor.

Dr. Rook died prior to the 27.26 hearing and hence his testimony was not available.

Defendants offered the deposition of Granville Collins, an attorney and friend of Dr. Rook. Both of these men lived in Fulton, Missouri. Collins (whose testimony was admitted subject to objection) stated that Dr. Rook talked with him as a friend shortly after he had testified — “He was perturbed and upset as to whether or not he had an ethical duty to reveal certain information which . . . may have had some influence on the trial of this particular case.” This witness further testified that Dr. Rook indicated that the prosecuting attorney looked at the records “ . . . removed certain documents and would say, ‘This has no bearing on this case,’ and lay it aside; and, ‘This has some bearing on this case,’ . . . that in some of the letters that had been set aside —I do not know whether it was a psychological report, but there was some report there that indicated that the veracity of this particular witness was highly questionable, . . . Mr. Rook then informed me that he was put on the stand to testify; that the defense attorney asked him if he had brought certain records, he stated that he had and he turned the records over to the defense attorney; and at no time was he ever asked to produce, if there were any, other records in his possession or in his knowledge or control concerning this particular witness, Mr. Warren. I simply told Dr. Rook I felt under the circumstances if he felt that strongly about it, it would be my suggestion he contact the defense attorney.”

Byron L. Kinder, the prosecuting attorney, testified that: “Dr. Rook came in my office unsolicited, my recollection is that he had the whole prison file, that which we have had here in evidence today. Now why he was carrying it rather than Harry Lauf [penitentiary records officer] I don’t know. He handed me the file, I went through the file, and my best recollection is that I took from that file serial transcripts on Beishir and Umfress, Ray Eugene Warren’s prison record, State’s Exhibits 1 through S were in the files that I took as they are found in the trial transcript there. I didn’t even discuss with Dr. Rook what he was going to testify to, and when he came here on the stand and started testifying I made appropriate objections and he was very upset with me after it was over. Dr. Rook was a psychologist and a little strange himself, he couldn’t understand why he couldn’t hazard a guess and make opinions. I kept the record rather tight in that regard and he was rather upset with me about it. * * *

“Q You have no recollection whatsoever of whether or not you extracted any documents ?

“A I know that I extracted no documents from any file other than what I testified to. * * *

“Q (by Mr. Rose) Then is it your testimony, Mr. Kinder, that you know that the records that may have been subpoenaed on inmate Ray Warren which were brought to the courthouse by Dr. Rook, you know nothing about the fact that they were brought into the courtroom if that is true?

“A I haven’t the slightest idea what Dr. Rook brought into the courtroom other than the two documents. I know he had Mr. Warren’s total file when he came into my office, but what he brought in that day I don’t know.”

The transcript of the original trial shows that Dr. Rook produced two papers. One was a letter from the Parole Board requesting a psychological evaluation of Ray Warren and the other was his report of such evaluation in response thereto. After some testimony concerning those exhibits the following occurred:

“Q (by Mr. Howe) All right. Dr. Rook, is that all you have in your department in regard — these two — in regard to this man, Ray Warren ?

“A No, it is not.

“Q What else do you have?

MR. KINDER: Wait a minute. Let’s approach the bench.”

Thereafter a colloquy occurred between the Court and counsel concerning the admissibility of evidence of the nature defendants were attempting to offer, at the conclusion of which defendants’ counsel abandoned any further effort in that regard and Dr. Rook was excused as a witness.

It was stipulated that two prisoners who testified for the state in the 1954 riot trials were released by commutation of sentences on January 13, 1956, long before expiration of their sentences; that Warren and Turn-bough were released by commutation in 1968 and 1969, a considerable time before expiration of their sentences.

The trial court made findings as follows: “The court finds after considering all of the competent evidence that the prosecuting attorney did not interfere with the proper compliance of the subpoena duces tecum issued at request of movants by examining and removing portions of the personnel file of witness Warren so that mov-ants were deprived of their right to view and inspect all of the records called for in the subpoena.

“The court further finds that the prosecuting attorney did not intentionally withhold or suppress any contents of the personnel file of inmate Warren specified in the subpoena duces tecum issued on behalf of movants knowing that the contents of the file would have weakened the state’s case and aided the movants in their defense at the trial.”

The first contention of defendants is that the court erred in making the findings above quoted. In our consideration of this point it should be stated that we do not believe the testimony of Granville Collins was admissible but it apparently was considered by the trial court and will also be considered by us ex gratia. We also are mindful that “Appellate review shall be limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j).

It is obvious that when Dr. Rook went into the office of the prosecuting attorney he had more records than the subpoena called for. The evidence indicates that defendants’ attorney was seeking psychological or psychiatric records of Warren. Apparently Mr. Kinder sorted out the records he thought should be produced but there is nothing to indicate that his action precluded Dr. Rook from taking all the records into the courtroom. Furthermore, as heretofore quoted, Dr. Rook in his testimony told counsel for defendants that he had other records. No doubt he would have produced these other records if counsel had pursued that line of questioning but, as stated above, counsel apparently concluded that the evidence was not admissible and abandoned his efforts in that regard.

There is another reason why the action of the prosecuting attorney was not prejudicial to defendants. The records they sought would not have been admissible nor would they have led to admissible evidence. Defendants point to a report to the Parole Board of a psychiatric examination of Warren by Dr. Guhleman. Therein it is stated that Warren’s “frank openness and sincerity of approach is completely misleading.” Assuming that such a statement indicates an opinion that Warren was not truthful it would not have been admissible even if Dr. Guhleman had appeared as a witness. It should be noted that defendants did not object to Warren being used as a witness because of mental incompetency but apparently were seeking to prove by psychiatric opinion that he was not worthy of belief. Expert testimony for this purpose is not permissible.

Defendants also say that some of the records would have shown that Warren feared that someone in the penitentiary would kill him and desired to be confined in maximum security. It is contended that such evidence would have helped defendants because they could argue that he volunteered to testify so that he would be so confined. Assuming that such evidence was admissible the failure to produce those records was not prejudicial because Warren testified in the trial that he had “turned himself in” (for protection).

Defendants have sought to raise a due process question by citing the case of Barbee v. Warden, Maryland Penitentiary, 4th Cir., 331 F.2d 842 (1964) which discusses the duty of the state to disclose exculpatory evidence to the defendant but that case would have no application to the factual situation before us.

As indicated we rule that the findings and conclusions of the trial court were not clearly erroneous.

Defendants contend, as a second ground for 27.26 relief, that the prosecuting attorney allowed Ray Warren and Roger Turnbough to testify at the original trial that they had not been promised special treatment in exchange for their testimony, when the prosecutor had made such promises. The testimony of the prosecutor was that he told the two witnesses he would see they were secure in their persons and not physically harmed, but that he offered nothing more. In the original trial, the witness Warren said he had been promised “only protection.” Defendants maintain the witnesses were promised early release through executive commutation of their sentences. The trial court found against defendants on these claims and again we cannot say the finding was clearly erroneous.

For the foregoing reasons the judgment of the trial court denying relief under Rule 27.26 is affirmed.

DONNELLY, C. J., and MORGAN, HENLEY and FINCH, JJ., concur.

SEILER, J., dissents in separate dissenting opinion filed.

BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, J.