State v. Peebles

SMITH, Judge.

Defendant appeals from his conviction by a jury of assault with intent to do great bodily harm with malice and the resultant twelve year sentence imposed by the court pursuant to the second offender act. We affirm.

On appeal defendant raises two points. Neither challenges the sufficiency of the evidence to support the verdict, but both points require review of the evidence. Defendant was in custody in the St. Louis County Jail in Clayton. On the night of the crime defendant decided to sleep in the dayroom of tank number 3 rather than in a cell. Each tank consisted of three eight man cells and a dayroom. Prisoners had the option of sleeping in a cell or in the dayroom. Two other prisoners, Brown and Stanton, also stayed in the dayroom for the night. Brown and Stanton were playing cards and watching television. Defendant watched television for awhile and then went to sleep. About 3 a. m. defendant awoke and requested that Brown and Stanton be quieter. Brown testified that defendant then got up, said, “its killing time” and came after Brown with a razor blade held in a piece of cardboard. Defendant slashed at Brown causing a cut on Brown’s ear and then pursued Brown around the dayroom slashing at him until guards entered the dayroom. .

Defendant testified that Brown and Stanton were homosexual sweethearts and were playing cards when he woke up. Upon defendant requesting them to quiet down, Brown approached defendant and stated, “No, you are not talking to me, I should be fucking you.” Defendant heard Brown ask Stanton for “the matchbook” and then as Brown approached observed a razor blade in Brown’s hand. When Brown attempted to strike defendant with the blade, defendant knocked it out of Brown’s hand and removed it from the floor after scuffling with Brown. At some point during Brown’s attack, Brown said something to defendant about “sucking his penis.” As defendant recovered the blade, he heard Brown yell to Stanton to get “the needle.” Defendant further testified that when he slashed Brown on the ear and during the chase he feared his life was in danger from Brown and Stanton. He stated that when the guards entered the dayroom he no longer feared a “sexual assault” and immediately stopped and gave the blade to the guard captain.

The testimony of the guards did not cast any light on the beginning of the conflict, but did support the testimony of both participants that defendant was chasing Brown around the dayroom. It also supported defendant’s testimony that as soon as the guards entered the dayroom defendant stopped and handed the blade to the captain. At that time defendant also said, “I cut the nigger. Get me out of here.”1

Defendant’s first point is that the court erred in allowing two of the guards to testify that defendant did not volunteer an exculpatory statement indicating he had acted in self-defense. The testimony of the guards related to the time immediately after the guards entered the dayroom. It is clear in Missouri that the silence of an accused when not under arrest and in circumstances such that only a guilty party would remain silent, is admissible as being in the nature of an admission against interest. State v. Butler, 512 S.W.2d 466 (Mo.App.1974) [1, 3]. It is equally clear that such silence may not be shown while an arrest is being made or after arrest, or when the defendant is “in custody.” State v. Butler, supra; State v. Taylor, 472 S.W.2d 395 (Mo. 1971) [1]; State v. Starkey, 536 S.W.2d 858 (Mo.App.1976) [1, 2]; State v. Burnett, 429 S.W.2d 239 (Mo.1968) [2]. Defendant relies heavily upon the fact that he was under arrest and in custody at the time the silence occurred.2 We do not find that that fact controls in this particular situation. The arrest and custody involved was not because of the offense about which defendant was partially silent. The presence of the guards was not for interrogation purposes, they came to the dayroom solely to stop an altercation. At the time of the guards’ arrival, they had no knowledge of what the circumstances surrounding the altercation were, who had been the aggressor, or whether an offense had actually occurred. Defendant’s statements and non-statements appear to have been volunteered or at most were in response to general information questioning directed at finding out what was going on. Under the circumstances here, it was unnecessary for the guards to enter the dayroom shouting Miranda warnings to make defendant’s statements or silence admissible. Defendant’s statements on some matters and silence on others were not the product of interrogation or of his custody. There was no error in admitting the testimony of the guards.

Defendant’s second point is that he was entitled to have included in the court’s self-defense instruction not only his belief in the danger of death or serious bodily harm but also that if he believed or had cause to believe he was in danger of a felonious sexual assault he had a right to defend himself. An instruction on resisting a felony is required if supported by the evidence. State v. Robinson, 328 S.W.2d 667 (Mo.1959) [1, 2]; State v. McQueen, 431 S.W.2d 445 (Mo.1968) [1—4]. We do not find such evidence here. Throughout the defendant’s testimony he expressed his fear of bodily injury. While there was evidence that Brown made references to sodomitic activities, there is no evidence that defendant was defending himself from sexual advances rather than from the threatened physical injury from the razor blade and “needle.” Nor do we find credible defendant’s assertion that the jury may have believed that had defendant submitted to sexual advances it would not have been necessary to otherwise defend himself. There is no evidence that Brown made any suggestion of consensual sodomy or that defendant believed he had any such choice. While a jury could infer that underlying the threat by Brown of bodily injury was an intention to commit a felony, it was not that underlying crime against which defendant was protecting himself but rather the threatened bodily injury necessary to commit that crime. Those cases relied upon by defendant involve circumstances in which no threat of great bodily injury was present, only the threat of some felonious conduct. We find no error in the court’s self-defense instruction. See State v. Thornton, 532 S.W.2d 37 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

1 Defendant, Brown and Stanton are black.

2 We do not reach the question raised ex gratia by the dissent of whether the defendant’s silence or statements were in response to accusatory questions. At trial, in his motion for new trial and in his brief in this court defendant has restricted his claims of error to his fifth amendment contentions revolving around his custodial status. No challenge has been leveled or briefed on the applicability of the “tacit admission” rule except as it applies to defendant being in custody.