State v. Miller

DONNELLY, Judge.

This case was transferred to this Court on certification by a dissenting judge from an opinion by the Court of Appeals, Western District. Mo. Const., art. Y, § 10. The defendant, Delbert Miller, had been convicted upon jury trial of stealing by deceit, §§ 560.156 and 560.161, RSMo 1978, and sentenced to seven years’ imprisonment. The Court of Appeals reversed the conviction and remanded for a new trial. In his dissent, Judge Donald L. Manford certified that he deemed such opinion to be contrary to State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972).

Defendant Miller, together with Harold Stufflebean and Golder Copas, an insect exterminator, represented to Lillian Bruce that her house was infested with powder post beetles and required treatment they could supply. The house was not so infested. Rotted wood brought by the three was shown the elderly Mrs. Bruce as purported evidence of such infestation. After Mrs. Bruce agreed to pay $620.00, appellant ran a fogging machine containing diesel fuel for ten to fifteen minutes in her basement. Such treatment is ineffectual for powder post beetles. Copas assisted Mrs. Bruce in filling out a check to Harold D. Stufflebean, which Stufflebean cashed in person later that day at Mrs. Bruce’s bank.

All three men were charged with the offense. Copas pled guilty and was awaiting sentencing at the time of this trial. Stufflebean was tried prior to defendant Miller, and Miller testified in his behalf. The effect of Miller’s testimony in the Stuf-flebean trial was that he and Copas were the culprits in the scheme, but Stufflebean was not.

Among other evidence presented by the state in this case, detailed testimony was elicited from Golder Copas concerning the scheme and ensuing events; Lillian Bruce’s testimony at the preliminary hearing as to her recollection of the events was read to the jury because of her illness at the time of trial; a licensed exterminator who inspected Mrs. Bruce’s home after the appellant’s visit at the request of the deputy sheriff testified that he found no evidence of infestation of or damage to the structure from powder post beetles; and two witnesses testified that in a conversation while waiting to testify at the trial of co-defendant Stufflebean, Miller admitted that he and not Stufflebean was guilty of the offense. In addition, the prosecutor quoted extensively from portions of the Stuffle-bean transcript in which Miller stated that he and Copas, and not Stufflebean, were the culprits in the fraudulent scheme. Defendant did not testify and rested without presenting any evidence.

In our view, it was error to read to the jury portions of the transcript of the Stufflebean trial in which the judge and the prosecutor repeatedly warned Miller of the danger that his testimony might be self-incriminating and of his right to invoke the Fifth Amendment and to refuse to testify. The question on appeal is whether the error was harmless.

In State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo. banc 1972) this Court stated that “error in the admission of evidence should not be declared harmless unless it is so without question.” The more understandable and prevailing standard is that error can be declared harmless only if we are “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

The record in this case is replete with evidence of Miller’s guilt. In addition to Miller’s own admission of guilt in the Stuf-flebean transcript, the state presented the detailed testimony of co-defendant Golder Copas, testimony of the victim herself, a licensed exterminator’s report that the Bruce home contained no damage by or evidence of powder post beetles, and testimony of witnesses who heard Miller admit to the crime.

In our view, the case against Miller was so overwhelming that we conclude that the error in admission of evidence, supra, was harmless beyond a reasonable doubt. “It is so overwhelming that unless we say that no [error] can constitute harmless error, we must leave this * * * conviction undisturbed.” Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969).

The judgment is affirmed.

HIGGINS, GUNN, BILLINGS and BLACKMAR, JJ., concur. WELLIVER, J., concurs in separate opinion filed. RENDLEN, C.J., concurs in result.