Takeaway
In short, this case confirms that relevant corroborative evidence, proper impeachment, curative instructions, and mandatory approved instructions will generally be upheld absent demonstrated prejudice or an abuse of discretion.
During an attempted robbery at a Safeway store on September 24, 1973, a security guard, Virgil McGee, was shot and killed. Two eyewitnesses saw events surrounding the crime but could not identify McClain as the shooter. The State instead relied substantially on police testimony that McClain orally confessed, as well as Linda Johnson’s testimony that McClain told her he had gone to rob the Safeway store and shot McGee.
A jury convicted McClain of first-degree murder and imposed a life sentence. The case was submitted under Missouri’s felony-murder instruction. McClain did not challenge the sufficiency of the evidence, but appealed on evidentiary, argument, felony-murder, and instructional grounds.
Issue #1
Whether the trial court improperly admitted a photograph of McGee’s upper body after McClain admitted that McGee died from a .32-caliber gunshot wound.
Holding
No. The photograph was not unduly inflammatory and was relevant to corroborate a material detail of McClain’s confession.
Reasoning
Although a photograph of a victim may be prejudicial when it is gruesome and proves only facts the defendant has already admitted, the photograph here was comparatively innocuous. At most, it was cumulative in a nonprejudicial way.
McClain’s trial admission referred to a .32-caliber bullet or a gunshot wound in the singular. The State’s evidence of his oral confession stated that he shot McGee twice, and the photograph showed two bullet wounds. It therefore corroborated the confession with a physical fact not clearly covered by McClain’s admission.
Issue #2
Whether the State exceeded the permissible scope of cross-examination when it questioned McClain’s wife about her presence at the Johnson home and McClain’s injured hand.
Holding
No. The cross-examination concerned matters raised on direct examination and was authorized by statute.
Reasoning
McClain called his wife specifically to contradict Linda Johnson’s account that McClain admitted the shooting in her home while his hand was bandaged. On direct examination, Mrs. McClain denied hearing such a statement and said she could not recall dates on which she had been at the Johnson home.
The prosecutor’s questions about whether Mrs. McClain was at the Johnson home on September 24, whether McClain was with her, and whether his hand was injured directly tested her testimony on those disputed subjects. Under section 546.260, a wife who testifies for the defendant may be cross-examined about matters covered on direct examination and may be impeached like any other witness.
Issue #3
Whether the State improperly impeached Mrs. McClain with her prior statement to police because the statement concerned a collateral matter or did not directly contradict her claimed lack of memory.
Holding
No. The prior statement concerned a central matter, and a witness cannot avoid impeachment merely by claiming forgetfulness.
Reasoning
Mrs. McClain was called solely to undermine Johnson’s testimony about McClain’s incriminating statement and his bandaged hand. Her credibility on whether she was with McClain at the Johnson home and whether she remembered his injury was therefore central, not collateral.
A witness’s asserted inability to remember does not prevent the opposing party from proving a prior inconsistent statement. Only a clear admission of the fact contained in the prior statement forecloses contradiction; otherwise, a witness could evade impeachment simply by professing forgetfulness.
Issue #4
Whether the trial court was required to grant a mistrial after a State witness volunteered that McClain had once pulled a pistol on the witness on a different occasion.
Holding
No. The court acted within its discretion by sustaining the objection and instructing the jury to disregard the unsolicited statement.
Reasoning
The witness’s reference to an unrelated incident was unexpected, and even the prosecutor asked the court to sustain McClain’s objection and tell the jury to disregard it. The statement was thus not presented as a deliberate prosecutorial effort to introduce inadmissible other-crimes evidence.
When a witness unexpectedly volunteers inadmissible information, the trial judge must decide whether a curative measure short of mistrial can remove the prejudice. The judge carefully considered the circumstances and concluded that this jury would follow the instruction. Because the trial court was better positioned to assess the jury and the trial atmosphere, the appellate court found no abuse of discretion.
Issue #5
Whether the court improperly barred defense counsel from mentioning three uncalled, State-endorsed witnesses during closing argument.
Holding
No. The proposed argument improperly invited the jury to draw an adverse inference from the State’s failure to call witnesses equally available to both sides.
Reasoning
The State had endorsed two Safeway employees and a person named in McClain’s alleged confession, but did not call them at trial. The State is not required to call every witness known to it or every person whose name appears on the information.
McClain’s proposed argument—that the witnesses would have appeared if they could identify him—would necessarily ask the jury to infer that their missing testimony hurt the State. Because the witnesses were no more available to the State than to McClain, that adverse inference was impermissible regardless of the phrasing defense counsel proposed.
Issue #6
Whether felony-murder could be submitted without evidence that property was taken or that there was an attempted taking involving asportation.
Holding
Yes. A killing committed during an attempted robbery supports felony-murder even when the robbers flee without obtaining property.
Reasoning
Missouri’s felony-murder rule applies when a homicide occurs in the perpetration or attempted perpetration of robbery. An attempted robbery need not culminate in asportation of property if the killing and attempted robbery are part of the same continuous transaction.
The evidence included McClain’s alleged confession to police and his statement to Linda Johnson that he went to the Safeway store to rob it and shot McGee. Indeed, defense counsel acknowledged in closing argument that McGee was killed during a robbery. The evidence therefore fully supported submission on the felony-murder theory.
Issue #7
Whether the first-degree murder verdict-directing instruction departed from MAI-CR 6.19 by naming McGee as the shooting victim and Safeway as the attempted-robbery victim.
Holding
No. The murder victim and the robbery victim need not be the same person or entity.
Reasoning
The instruction correctly identified McGee as the person shot and killed. It also correctly identified Safeway as the target of the attempted robbery.
McClain’s objection rested on the mistaken premise that the victim of the homicide must also be the victim of the underlying robbery. Because the felony-murder rule contains no such requirement, the instruction complied with the intended operation of MAI-CR 6.19.
Issue #8
Whether the converse instruction was erroneous because it told the jury to find McClain not guilty “of murder in the first degree” if it found the hypothesized facts.
Holding
No. The instruction precisely followed the mandatory approved instruction and would not mislead a reasonable jury.
Reasoning
McClain argued that the phrase “of murder in the first degree” could lead jurors to think they could find him guilty of another offense even if they rejected first-degree murder. The court concluded that reasonable jurors would not draw that implication from the instruction.
More importantly, the converse instruction tracked MAI-CR 3.06 exactly. Missouri’s rules required use of the applicable approved instruction, so the trial court properly gave it in that form.