Appendix — Drope v. Missouri
Supreme Court brief1975
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ON WRIT OF CERTIORARI TO THE MISSOURI COURT OF
APPEALS, ST. LOUIS DISTRICT
PETITION FOR WRIT OF CERTICSARI FILED JANUARY 5, 1974;
CERTIORARI AND — PAUPERIS GRANTED MAY 13, 1974.
Mira
oe
=
IN THE
Supreme Court of the United States
OCTOBER TERM, 1974
No. 73-6038
JAMES EDWARD DROPE,
Petitioner,
—V.—
STATE OF MISSOURI,
~ Respondent.
ON WRIT OF CERTIORARI TO THE MISSOURI COURT OF
APPEALS, ST. LOUIS. DISTRICT
INDEX
Page
Relevant Docket Entries in The Circuit Court of the City of
St. Louis, Case No. 405R 2000.02. .... cece cece ccc cecceeeeeete eee eeeeeeeees 1
Relevant Docket Entries in The Circuit Court of the City
of St. Louis, Case No. PCR294 2000..0o020o.c cece cece ceeeeec eee ee 4
Relevant Docket Entries in the Missouri Court of Appeals,
Case No. 34,797 .....c.ccccccccccccc cece ceeccccecnecceceeececceeeceeeeeeeeseeneeees 5
bt Efi 0s ct || a re
Defendant’s motion for continuance and psychiatric exami-
WUE: CIEE sien cco crores ascendant es es avsteeeececiunarseenancetionne 7
Memorandum filed by State not opposing the motion ............ 14
Commencement of trial (excerpts) -......0........2..20.20ecceeeceeeeeeeeeeee 15
Testimony of Marianne Joyce Drope
iret ooo coeee ceceeeeeeceeeeeeeeeees B saueboadviducusussavsseieeseaesodseruen 22
% BocmtOPAR 5 cso - co ccsdavncdevcssnnn-eeuesseecusescouacecseascacateuasesssensue>eaess-+-ss 42
—POGUTV CCE oon ooo oeeceeeceec cc eccccees cenecccececeetecscsececcecectecersrenseeeees 56
—further redirect ..2..0.0..0.000.0cceceeeecc cece ee eceeeceeeeeeeeeeeeeeeees 61
parka Bias SA BOY
P
wR oy Tig <n ia he
\
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ii INDEX \
Commencement of trial (excerpts )—Coatinued Page
_ Continuation of trial in defendant’s absence . ....; 63
' Motion for verdict of acquittal and overruling thereof . 64
Verdict of jury ....-.--:-- Fev etesssenesteeees 65
Penalty fixed. .-..---.-c-eccceecceccceseceertenrrt es rene . 66
Motion for new trial ...-.-----f---- ne ; 67
Hearing on motion for new trial .........---c-ceeet 69
Testimony of James Edward Drope
en APOE. cecescceiiecsnnsscenen Tasscsqeseetetbheencaeecnnet tbc cit rreeee ee EA 71
OPER. ceceeccovavennnsustnonnsndinceenenunevnsnanpeneanacicentin Afens ee . 716
State’s case ON MOLIOM ee ree 82
Testimony of Frankie Dewey \
—direct oc esassaslatensis estensnelendnbenertiaxavssadsrnstecennsnnens toni Metireaens 82)
Testimony of Fred H. Schiefelbein /
pc cscesney ccd cocina anne EE 84
CPOE cvcecscnesucsarsnseensensnnretsnncnsssarenstneaBisnsesernnanesaessnessee7so72220" - 87
Testimony of Norma Snowden
SAA POOK, hieccaciseceassevenainne ht ctecieenseseccennstar ene ame eS ee 88
——CYOSS .eevececnececceceeeteecerenesesesstes shckaersnasstipieiesne dae eth 92
Testimony of Jerome Dampier
ee EDL gsezennsnndicosedensxcnen nerd ntiven oa envet cpweecetenseessna trent” 93
mCP OBS cccssncensvesssedsesssesonanesnnnscensnsenancsacanensnnnesenn sess eese ses eee 98
Testimony of James Edward Drope ..... re 101
Motion for new trial overruled ..........--------- re 102
Allocution and sentence .......--.2-----ce ena 103
Judgment of CONNVICEION ......---2---ec-cceceeeeeeeet eee 105
Notice of appeal to Supreme Court of Missouri ........-.------- 106
aaieanht. i Supreme Court upholding conviction and order
denying rehearing or transfer to court en banc, Stockard,
Commissioner ....---2--2:ssecccecceseeesteett ttt 107
Judgment of Supreme Court of Missou rte, ....----:-----eceee eee 119
Post Conviction Proceedings in the Circuit Court of the
City of St. Louis, Case No. PCR294 .....-c--c:ccccecerrteee {21
Motion to vacate judgment and sentence under Supreme
Court Rule 27.26 .......-.------:e eee eee — 121
INDEX ; iii
*
Post Conviction Proceedings in the Circuit Court of the City
St. Louis, Case No. POR294—Continued Page
Testimony of Joseph S. Shuman
—direct ..... a Serre 128
—~CTOBR ooo cess cnccccc ence cceasecenee essere siigseenes- Dees 13
—redireet .............-- sep aaateiwseeee , »® 187
—=FOCTOSS c.scccececbssctistenasensnsendocneeceecssseescnsees Sc eesseiceedeens ce 139
—K—VODiVeCE oooeccccccccccececcecccecccecceceeecccceeeceesseauececeeeeeeseee ceeeseeees 142
—FOCTOSS ...o-scnencccecceccccceccececceeeececceecsecsceseecesceescsatseereeseeeesseess 143
Testimony of Norma Snowden
7
Se bb a oan een pdb eshabaeaecories tesaseninresaessssbineeseeoe 143
CY OSS occccccccccncecccccecscccecesececscecececccccceccceescceeceseeceesaccensepeaseees _ 147
——POGiTOCh. oo ocecccccecq.nd-ceseevsecsscd~nneneeneaeedentoredesseseesecteneesttueeaes 148
Testimony of Jon Tek Lum
—GiveCt ......2..c-seseeeee-neeoeeeoseeenenenenaccenennescepecseecansesaneeneceesseess . 149
CT OSS 20. ceesceceeeeeececeecestegeeccesceneccoeseeeeeelessscnsennenseaesnesseeeess 155
—-VOMiTCCt on.n.eaeaececennceneeececeeeeeeeeceeeeeeeecenencceessnteatenseneseeeesceas 162
Testimony of Homer Elmer Case, or. .
a; 1 We ch EEE acne ee 163,
VOSS 2oooec cece cece cece booed easy seebesecuevasseecueeustesusdeeeenssenqesuse 170
Ses bb 21 ch a EEE 171
Testimony of James McCleary .
REPRE csp ee eee ee 172
—CYOSS o....e cece cece eeleceeeeececeeeees eaue-dgaeceacecoseusssseettnsaueseareeres-seeee 173
—redirect .00..........-.. Vaceeesiussiprvietnedete inanagietesaaets teens caren aieers 176
—PCYOSS oes Sy tec tadentcoesseie elpeneeatit set oiareneses 177
Testimony of James Edward Drope
—direct ........ Bsa setts seu deseeedecuuununstten sesh deannndscscetsteeeaisenteausa<d 178
CVOBS ceccancsecs nndertcgcesedennsseenentcee cshededansnccndneseeee eee 185
——POGIVOCE ooa.ccceccecccecececcceeececccceese ceeeesececceesesceeeseeenataneereesrees 193
Statement of facts, conclusions of law and order ............ 197
Notice of appeal to the Missouri Court of Appeals, St. Louis
District .......ccccccccecccccccceeceeceeecccecetesceeeessesececeeecececenseseaeeeeeeeesenestenes 215
Opinion of the Missouri Court of pepe St. Louis District,
Grit, To nccnscececvecensnccerscccessnnpenlanseuhsasibanescesnssnoenrnensnsdisnesncstnsdatznnncs 216
Judgment o.oo... ce ecceccseccecceceeceec cone sceeeeseeeeseeseseeceessseessassanenmensersaaee 226
_ Appellant’s: motion for rehearing or transfer denied ............ 226
TA AES AY
iv. INDEX
Pe .
Order of Supreme Court of Missouri denying appellant’s mo-
tion to transfer .........--.---c----ceceet rn Fantom
Order of the Supreme Court of the United States granting
motion for leave to proceéd in forma pauperis and grant-
.
ing petition for writ of certiora®ri ©........---------
228
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1
IN THE CIRCUIT CouRT
OF THE CITY OF ST. LOUIS
STATE OF MISSOURI
Cause No. 405R
STATE OF MISSOURI, PLAINTIFF
v8.
JAMES E. DROPE, DEFENDANT
RELEVANT DOCKET ENTRIES
1969
February 26 Indictment filed.
April 14 Cause continued for defendant James E.
Drope to May 26, 1969.
May 27: Defendant files motion for psychiatric exami-
nation. State of Missouri files memorandum
stating it does not oppose the motion for a
~ psychiatric examination, of defendant James
E. Drope.
June 23 Cause assigned to Division No. 19 for trial.
Defendant present in court, but his attorney,
Lester Watson, was not present. State present
by Mike Frank. Cause having been assigned
to Division No. 19 and the court having wait-
ed from 10:45 a.m. to 2:00 p.m. and the de-
fendant having been present and a panel of
60 jurors present and Lester Watson having
failed to appear and the court being advised
that Lester Watson is aware of the case being
on today’s docket, it is ordered that Sheriff
seek out the said Lester Watson at this time.
Lester Watson arrives at 3:15 p.m. Defendant
present in court with his attorney, Lester
Watson. State by Mike Frank. Examination
of jurors voir dire begun. Not completed.
Cause recessed until Tuesday, June 24, 1969
at 10:00 a.m.
CPI TE CI gt OG IE his eRe ee |
WE a ats. « OP.
1969
June 24
June 25
July 21
July 30
2
RELEVANT DOCKET ENTRIES
Trial proceeds. Defendant present in court
with his attorney, Lester ‘Vatson. State by
Mike Frank. Examination of jurors voir dire
begun, continued .and selected. Jury sworn.
Instruction given. Opening statement made
by the State. Defense reserves the right to
make opening statement at this time. Testi-
mony for State begun, not completed. Trial
recessed until Wednesday, June 25, 1969 at
9:30 a.m. ; y ,
Trial proceeds. Defendant not present in
court with his, attorney, Lester Watson. The
court being informed that the defendant
James E. Drope is in the hospital as the re-
sult of a self-inflicted gunshot wound. De-
fendant’s attorney, Lester Watson, moves for
a mistrial which was overruled. Trial pro-
ceeds with defendant, James E. Drope, not
present. Trial progressed. Testimony for
State being heard and completed. Out of the
hearing of the jury defendant’s prior convic- »,
tion read by the court clerk. The court finds
defendant’s prior convictions. Defendant’s at-
torney files motion for verdict of acquittal.
Presented and overrulea. Jury instructed not
to separate. Instructions read. Arguments of
\ counsel made. Sheriff sworn and cause given
to the jury. Verdict of the jury. Guilty of
rape. Verdict received. Jury polled. Defend-
ant ordered to custody cf Sheriff. Defendant
was in the hospital when remanded to Sheriff.
Defendant’s bond set at $25,000.
In accordance with the verdict of the jury and
court’s findings the punishment of defendant
is assessed at imprisonment in the peniten-
tiary for the remainder of his natural life.
Defendant’s motion for a new trial filed. Set
for hearing on September 19, 1969.
1969 .
+3 ¢
RELEVANT DOCKET ENTRIES
September tf _ Evidence offered by defendant on motion for
October 3
October 15
October 21
4
1970
March 12
1971
January 11
new trial. Further proceedings to be heard
by court on October 3, 1969.
Motion on hearing for new trial heard and
to be taken as submitted on filing of last brief.
Defendant allowed 10 days to file and state al-
iowed 5 days to answer.
Defendant’s motion for new trial overruled
and sentencing set for —, October 21,
1969 at 9:15 a.m.
Allocution granted. Defendant sentenced \to
Department of Corrections for remainder of
his natural life. >
Defendant with special leave of Court, files
notice of appeal to Supreme Court of Mis-
souri.
Opinion of Supreme Court of Missouri affirm--
ing judgment filed.
1971
April 22
April 28
May 11
May 14
July 21
1972
June 26
July 7
4
IN THE CIRCUIT COURT
OF THE CITY OF ST. LOUIS
STATE OF MISSOURI /~
t
Case No. PCR 294
JAMES EDWARD DROPE, MOVANT
vs.
STATE OF MISSOURI, RESPONDENT
RELEVANT DOCKET ENTRIES
Defendant’s affidavit in forma pauperis is
filed and granted. Motion to set aside judg-
ment and sentence under Supreme Court Rule
27.26 is filed and assigned to Division No. 19
as Case P.C.R. Number 294 to be heard by
Judge David McMullan. Richard D. Hatton
appointed attorney for movant.
Appointment of Richard D. Hatton set aside.
Elmer H. Grimm appointed attorney for
movant.
Appointment of Elmer H. Grimm set aside
and John J. Goebel appointed attorney for
movant.
Charles A. Weiss enters his appearance as Co-
counsel with John J. Goebel as appointed at-
torney for movant.
PCR hearing convened and progresses. Con-
tinued for purpose of taking and filing depo-
sition. Defendant granted 30 days for filing
brief. State granted 30 days to answer. Motion
to be taken as submitted on filing of last brief.
Movant’s motion filed pursuant to Missouri
Supreme Court Rule 27.26 overruled. Find-
ings of fact, conclusions of law and ruling
filed.
Movant files notice of appeal to Missouri
Court of Appeals, St. Louis District.
5
IN THE MISSOURI COURT OF APPEALS
ST. LOUIS DISTRICT
No. 34,797
JAMES EDWARD DROPE, APPELLANT
Vv.
STATE OF MISSOURI, RESPONDENT
1973
March 5
June 5
June 15
August 16
September 13
October 9
1974
January 7
RELEVANT DOCKET ENTRIES
Cause argued and submitted.
Opinion filed upholding finding of Circuit
Court in overruling appellant’s motion filed
pursuant to Missouri Supreme Court Rule
27.26.
Appellant’s motion for rehearing or to trans-
fer to Missouri Supreme Court filed.
Appellant’s motion for rehearing or transfer
to Missouri Supreme Court denied.
Copy of appellant’s application fcr transfer
to Supreme Court of Missouri filed.
Supreme Court of Missouri’s order denying
appellant’s application to transfer filed.
Letter filed notifying court that appellant
filed with the United States Supreme Court
a petition for writ of certiorari to Missouri
Court of Appeals, St. Louis District.
6
“CIRCUIT COURT, CITY OF ST. LOUIS,
FEBRUARY TERM, i969
INDICTMENT—Filed February 26, 1969
“THE GRAND JURORS OF THE STATE OF MIS-
SOURI, within and for the body of the City of St. Louis,
now here in Court, duly impaneled, sworn and charged,
upon their oath present, That J AMES EDWARD DROPE
alias EDWARD DROPE on the 2nd day of June, one
thousand nine hundred and fifty-eight, at the City of St.
Louis aforesaid, in the Cireuit Court was duly convicted
of the offense of Burglary Second Degree and Stealing,
and in accordance with said conviction was duly sen-
tenced by said Court to an imprisonment in the Peni-
tentiary of the State of Missouri for the term of two
years for Burglary Second Degree and two years for
— to run consecutively for a total of four years
was duly imprisoned in the said Penitentiary of the
State of Missouri aforesaid, on July 2, 1958, in accord-
ance wita said sentence, and that the said JAMES ED-
WARD DROPE alias EDWARD DROPE was duly dis-
charged from said Penitentiary of the State of Missouri
aforesaid, on February 25, 1961, after and upon lawful
compliance with said sentence.
“THE GRAND JURORS OF THE STATE OF MIS-
SOURI, within and for the body of the City of St. Louis,
now here in Court, duly impaneled, sworn and charged, —
upon their oath present further as follows:
“That JAMES EDWARD DROPE alias EDWARD
DROPE, RABORN EUGENE TUTTLE and ROGER
DERYL BUTLER at the City of St. Louis, State of
Missouri, on the 17th day of January, 1969, did unlaw-
fully and feloniously make an assault upon MARY
JOYCE DROPE, a female over the age of sixteen years
and did then and there unlawfully, feloniously and forci-
bly rape, ravish and carnally know the said MARY
JOYCE DROPE against her will; contrary to the form
of the statute in such case made and provided, and
- against the peace and dignity of the State.
7
[Caption Omitted in Printing]
MOTION FOR CONTINUANCE
Comes now the Defendant, JAMES E. DROPE, and
states to the court that he has had a psychiatric exam-
ination made by Dr. Joseph F. Shuman, M. D., a copy
of which report is attached hereto.
Defendant moves the court to continue his case until
September, 1969 in order that he might receive an Exam-
ination, Evaluation and psychiatric treatment, as sug-
gested by Dr. Shuman, at the Malcomb Bliss Hospital
in the City of St. Louis, Missouri.
/s/ Lester Watson
Attorney for Defendant
1212 Big Bend Blvd.
Richmond Heights, Mo. 63117
647-6330
8
JOSEPH S. SHUMAN, M. D.
ANTON F. HEUSLER, M. D.
NEUROPSYCHIATRY
326 Northland Medical Bldg.
' §t. Louis, Mo. 63136
Telephone CO 1-9310
-February 22, 1969
Lester Watson, Esq.
Attorney at Law
1212 Big Bend Boulevard
Richmond Heights, Missouri
63117
Re: James E. Drope
Dear Mr. Watson:
Pursuant to your request I performed a psychiatric
evaluation on Mr. James E. Drope in my office on Febru-
ary 20th, 1969. Mr. Drope had been driven to my office
by his wife. This was 2 healthy looking, well built, well
developed white male, who appeared to be markedly agi-
tated. The patient at times would wring his hands. He
had difficulty in talking because of his marked anxiety.
Mr. Drope explained that one day he came home from
the union hall, after not having gotten any work and
he started drinking; apparently, he spent the day drink-
ing. He said that he got home at 3:30 p.m. and went
to sleep. His wife woke him at 6:00 p.m. and sent him
to the store, but after buying his groceries he also went
to the tavern for a few drinks and also got himself a
six-pack. He said that he started drinking and then was
joined by a few men aged twenty to twenty-two. They,
apparently, drank with him until about 2:30 a.m. He
said they had been talking about going over to East St.
Louis and finding some girls. Mr. Drope then claimed
that the next part of the history is really a blank to him.
He repeats what he has been told, but claims that he
has absolutely no memory for it. He says that all he
remembers is that he was bringing the groceries up-
stairs when he saw some police come into the street and
9
up around his house and they arrested him after his
wife screamed to them to watch out for him because he
was carrying a gun. Mr. Drope said that he doesn’t
remember anything, but he was told that he and the four
men with him went to his home and raped and threat-
ened his wife with a gun and a knife and that this oc-
cured between 2:30 and 4:00 a.m.
Mr. Drope said that he was taken to the hospital and
was examined and then he was taken to the jail and
eventually to the City Workhouse. He said that there
were several warrants against him. After being in the
workhouse for one or two weeks he was let out on bond.
He said that he has been trying to work since then. He
also said that his wife wants to drop the charges, but
that he is due back in court on February 26th. He said
that he and his wife are now getting along okay.
PAST HISTORY: Mr. Drope was born in Gideon, Mis-
souri, on April 29th, 1937, the second of five children.
The youngest three were the product of a different father.
Mr. Drope said that~he has seen his father only four
times in his life. Apparently, his father was divorced
by his mother when Mr. Drope was still only a baby. A
stepfather raised him, but he died in 1952. The mother
has since remarried several times and is now with her
fourth husband.
Mr. Drope said that he was shunted back and forth to
many cities and schucls and he finally quit school in the
fourth grade when he was fifteen or sixteen years old.
This occured after his stepfather died and lie had to go
to work. He was living in St. Louis at the time. He had
numerous jobs such as being a newspaper boy, a delivery
boy, a packer, ete.
Mr. Drope first married at the age of seventeen and was
divorced at the age of twenty-three. He and his wife
had four children; they are now with his ex-mother-in-
law in Arkansas. His ex-wife has also remarried. These
children run in age from fifteen to eleven. The patient
said he has seen them only once,in the past two years.
10
In 1958, when the patient was twenty-one, he was living
in St. Louis and, because of the need for money and
because he was not working, he took part in a burglary,
but he was caught. He served thirty-six months in the
penitentiary in Jefferson City. While he was there his
wife divorced him. At this point the patient nointed out
that he has very much trouble remembering these things.
He said that it seems like it was on'y 4 week ago. He
remarried after his release from the penitentiary, but
he is unable to remember the date. He has since had
five children and he says they range in age from five or
six to six months. Patient has had numerous jobs. In
the last few months he has been working out of the union
hiring hall for truckers. He said that he made a living
and that he also did odd jobs to supplement his other pay.
He admits that he is greatly in debt and just cannot
catch up.
PAST MEDICAL HISTORY: The past medical history
reveals the usual childhood diseases, but there have been
no operations, although the patient has apparently been
injured many times. Once, as a child, he fractured a
leg and due to this he was discharged from the service.
He said that he enlisted at the age of seventeen, but was
discharged only a month later because of that bad leg.
Mr. Drope has also one other arrest and that was for
car theft. He did not serve any ‘time because he was
placed on parole immediately. That was over ten years
ago.
Mr. Drope said that he smokes three or four packs of
cigarewes a day.. He said that he drinks only when he
is upset and that he does drink to the point of getting
drunk.
In talking further with Mr. Drope, in response to a ques-
tion about hearing voices, he thinks thet he heard voices
after his stepfather died and he also described hearing
voices only last January and that he saw a vision of his
stepfather and grandmother and, apparently, had a con-
versation with them. The patient admits that he had
been drinking at that time also.
11
Mr. Drope was markedly agitated and upset. He is not
a very good historian and he claims much difficulty with
memory. He appeared to be cooperative in this examina-
tion, but he had difficulty in participating well. As a
‘matter of fact, before he left my office I gave him a seda-
tive to get him calmed down. I also gave him some sam-
ples of medication together with a prescription for these
medications in the hope that he can get himself relaxed
so he can carry on more efficiently. The patient had a
difficult time relating. He was markedly circumstantial
and irrelevant in his speech. He showed marked anxiety
and there was no sign of any depression or apathy at
this time. His affect seemed to be harmonious with his
thought content. There was no sign as to the presence
of any delusions, illusions, hallucinations, obsessions.
ideas of reference, compulsions or phobias at this time.
In a simple IQ exam Mr. Drope was able to achieve a
score in the low normal range, but on further tests for
knowledge of current news events and famous names
and places, he did very poorly. Mr. Drope was wel! ori-
ented in all spheres. With much difficulty he was able
to explain a few abstractions. He also showed some diffi-
culty in explaining some differences. He was able, with-
out trouble, to answer questions testing judgement. He
had much difficulty even doing the simple counting and
calculations problems.
After finishing with Mr. Drope I then talked alone with
his wife. She is twenty-four years old and says that she
has been married for seven years and has five children.
She admits that she has left him several] times in the
marriage, but came back because of having no money.
Often she would leave him because of his sexuc: perver-
sions. She admits that in the past he has inserted a
bottle in her vagina and he has also had rectal inter-
course. She said that he had once mentioned that he
might do something like bringing up some men to take
care of her so that he had actually had it in the back of
his mind before. She also said that he is very suspicious
and is always accusing her of running around. Appar-
EE
12
ently, his first wife ran around. Mrs. Drope admits that
her husband drinks much, but she doesn’t remember him
being real drunk more than three times since they were
* married. She also describes what she feels is strange
| behavior on his part in order to get sympathy. This
~ would include even falling down flights of stairs io gain
sympathy from her. Mr. Drope would stay away two
or three days-at a time if he got mad at her, otherwise,
they got along very well. She thinks that he has been
always as nervous as he is now and that he would not
hold a job very long because of his nervousness.
IMPRESSION: If it can be said that some people are
born with a silver spoon in their mouth then it must be
admitted that Mr. Drope was born with a fish hook in
his. He has always led a marginal existence. He re-
ceived practically no education and no training for any
worthwhile occupation. Having had several fathers is
certainly not condusive to proper father identification.
Apparently, abnormal sexual acts are part of Mr. Drope’s
own culture. He has a history of occasional drinking,
although he seems to drink more often than his wife
suggests. He also has a history of anti-social conduct.
At the present time Mr. Drope is certainly markedly
-agitated and upset. He finds himself in very much trou-
ble and is confused about the whole thing. I do not find
any strong signs of psychosis at this time. This indi-
vidual certainly needs the aid of a psychiatrist, but I
would really not be very optimistic about success about
a man like him because I doubt that he would keep up
with any kind of psychiatric care, since this requires
some modicum of sophistication.
This*is a very neurotic individual who is also depressed
and perhaps he is depressed for most of the time. Ap-
parently, he certainly has much reason for this. As for
the diagnosi I want to offer: (1) Sociopathic personality
disorder, sexual perversion. (2) Borderline mental defi-
ciency. (3) Chronic Anxiety reaction with depression.
re ne eke ie
VA NOL i ISLE A GALI TLD CRETE.
18
The prognosis for Mr. Drope must remain guarded. Per-
haps his anxiety can be controlled with medication, but
one cannot expect much change in his personality defect.
Trusting that this is the desired information, I am,
us Te aT |
Very truly yours,
/s/ J. S. Shuman, M.D.
JOSEPH S. SHUMAN, M.D.
JSS/meg
OEE E EEE LOBE ILENE LOPES IGN STD
'
14
IN THE CIRCUIT COURT
CITY OF ST. LOUIS
Cause . 405-R
May 27, 1969
STATE OF| MISSOURI
Vv
JAMES—Ex” DROPE
Charge: Rape
Comes now the State of Missouri and does not oppose
the motion for 2 psychiatric examination of the Defend-
ant James E. Drope in the above entitled cause.
Respectfully submitted,
/s/ John J. Morten
3 Assistant Circuit Attorney
[Filed May 27, 1969, James H. McAteer, Clerk,
Circuit Court for Criminal Causes |
na pire Stee
3
*
*
15
[7] TRANSCRIPT OF TRIAL
Thereupon, on said 23rd day of June, 1969, the trial
of the above-entitled cause began in Division No. 19 of
said court, before the Honorable David A. McMullan,
Judge, presiding ‘n said Division. Mr. Michael Frank,
Assistant Circuit Attorney, appeared as attorney for
the State of Missouri. The defendant, James Edward
Drope, appeared in person in open court. A panel of
prospective jurors was then summoned into open court.
Thereafter, upon the arrival of Mr. Lester Watson, at-
torney and counsel for the defendant, in open court, the
jury panel was sworn in on voir dire, after which the
following proceedings were had’in said cause:
- MR. WATSON: Your Honor, please, I would like
to make a record in this case. Do you want the jury
in here while we make it?
THE COURT: You can make your record out of the
hearing of the jury.
(The following proceedings were had out of the hear-
ing of the prospective jurors:)
MR. WATSON: Where is the court file? Let the
record show that on May 27th, 1969, this case was set
for trial, at which time the attorney for the defendant
Drope filed a motion for a psychiatric examination,
and requesting that the case be continued until the Sep-
tember Term of court. It was determined at that time—
the motion filed requested the continuance [8] for the
reason that the defendant had been previously examined
by a psychiatrist who had recommended further ex-
amination, evaluation and psychiatric treatment of the
defendant, at which time the Court informed the de-
fendant’s attorney that the case would be continued to
September, and the defendant—
THE COURT: Well, pardon me. Just a minute. Just
a minute, Mr. Watson. This case was assigned here this
morning. It was on this morning’s docket. You came
in, and I have been waiting all day, and it is now four
o’clock. And we have been in touch with your office;
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we have been in touch with your home and every place
else, and then you came in here about twenty minutes
ago, a little after 3:30,- and you wanted a continuance ,
and the State objected. And I said that continuances
were passed upon in Division No. 16, and had already
been passed on. I think you were over there to Judge
Walsh to make your request and record for continuance.
Now you are tating things that Judge Walsh advised
you to the contrary. I talked to Judge Walsh over the
telephone, and he did not say, and he told me he did
not say, that this case would go ove. to September. And
in addition, Judge Walsh told me the motion wasn’t in
proper form, and he pointed out that it was not in proper
form. And I may be mistaken, and I thought that the
situation was that you were to file a motion.
MR. WASTON: That is correct.
THE COURT: And you did not do so.
[9] MR. WATSON: Ac I understood it,—
THE COURT: Pardon me. You iin this record started
out that a motion was filed.
MR. WATSON: Well, here the file shows a psy-
chiatric—
THE COURT: That is the Clerk’s minute. Look at
the motion. |
MR. WATSON: I am looking at the motion.
THE COURT: Is it in proper form?
MR. WATSON: No, it is not.
THE COURT: Then no motion has been filed.
MR. WATSON: Never overruled or sustained or any-
thing else, but it was filed.
THE COURT: Did you and Judge Walsh agree—
MR. WATSON: I was to file an additional motion?
THE COURT: No, no. Not in proper form?
MR. WATSON: Mr. Morton an“ 1 agreed. I don’t
know that the Judge did. And I was to file an addi-
tional form. /
THE COURT: Pardon me. I don’t mind you making
a record but I want the record to be honest.
MR. WATSON: I do too. I don’t want it any other
way. That is absolutely the way I want it, Judge.
17
Now, 1 don’t know how far I got before the Court
made a statement into the record, but, in any event,
counsel for the defendant having filed this motion asking
that the case be set~in September, and having agreed
to file an additional motion [10] that would comply with
“he statutes, did not prepare this case for trial and did
not know it was on the docket until informed by Judge
Douglas Jones in Clayton that Judge McMullan has
called and asking if I were in his courtroom, and that
I was wanted in the Circuit Court in St.. Louis.
I have not had the opportunity as yet to file this
motion under the statute, asking that the man be sent
to Malcolm Bliss Hospital for a further psychiatric—
THE COURT: Just a minute. Pardon me. It ap-
pears to me now that your motion is such that a record
ought to be made before Judge Walsh.
MR. WATSON: If Your Honor wants us to go over
there.
THE COURT: Now, going back and forth over
there, I am in this sort of position: Judge Walsh told
me that that motion was filed and it was an improper
motion, not in proper form, and you suggested, and it
was suggested that if you seriously contend that he
needed physicatric help, that you would file a2 proper
psychiatric motion. It was not filed. It was docketed.
Now, Judge Casey Walsh did not tell me that he sus-
tained the motion that it would be set in September.
That is contrary to what Casey Walsh téld me. Did
Judge Walsh state in September?
MR. WATSON: At the time I and Mr. Morton dis-
cussed it.
THE COURT: Not until September?
[11] MR. WATSON: Until September.
THE COURT: And assured you of that?
MR. WATSON: Yes, Judge. May I explain one thing
more because he said it took such a long period of time
to get a person through Malcolm Bliss, there was a
waiting period and it could be done during the summer
months and be ready for trial or else the examination
would eliminate trial by September.
accel
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: THE COURT: Did he say he would set it in Sep-
3 tember?
: MR. WATSON: Did he say he would set it in
: September?
THE COURT: Yes.
MR. WATSON: Judge, I don’t know. There was
such confusion because the thing was just sort ef left
off and set later on in the day when I wasn’t there, as
Mr. Morton said it was set by him and the Clerk of
the court when they were resetting all the cases that
had gone over from that particular week.
THE COURT: Well, may the record show this: Ther
is nothing in this record,—and the word of Casey Wal
himself, there is nothing in the record to show it was
be set in September, and Judge Walsh did not tell me
it was to be set in September and did not assure you it
was set in September. The file shov’s that a minute was
entered on May 29th that it was continued to June 28rd.
Now, what may have happened is, if you were going
to file a motion for a psychiatric examination, it would
have the result of it having to go over to September to
[12] give time for the examination to be made. Judge
Walsh may have said that but there is nothing in the
record. And I don’t believe that Judge Walsh stated it
would be set in September. Yeu just came back from
Judge Walsh’s division. 1 am sure if Judge Walsh
made that statement to you, he would honor it. And
I can only go by the file and Judge Walsh.
And let the record show they went back to Judge
Walsh’s division, and after being in there fifteen or
twenty minutes, Judge Walsh has refused to grant a
continuance. .
MR. WATSON: That’s right. He said the case was
assigned over here and the jury waiting all day, and
the witnesses were here, and for that reason he didn’t
feel he wanted to grant a continuance.
THE COURT: It seems strange to me that you would
come into the court and before this Judge and start
quoting what Judge Walsh said.
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19
MR. WATSON: Because I didn’t get an ‘opportunity
to question him.
THE COURT: Pardon me. We'll go ahead with the
case now. And this jury has been waiting, practically
all day. We will at least get started. And before the
jury is sworn in, I am going to ask Judge Walsh to
review this statement. All right.
MR. WATSON: Let me state further into the record,
I am objecting to going to trial with this defendant also
for the [13] reason that the defendant is not a person
of sound mind and should have a further psychiatric
examination before the case should be forced to trial.
THE COURT: All right. The record—
MR. WATSON: Furthermore, for the record, I am
_ going to object at this time for the reason that the State
on June 19th, 1969, added five additional witnesses whom
we have had no opportunity to examine, and claim
surprise for that reasun.
Secondly, I am going to object to going to trial at this
time for the reason that a memorandum, dated May 27th,
1969, headed “State of Missouri v. James E. Drope.
Charge: Rare: Cause No. 405-R. Comes now the State
of Missouri and does not oppose the motion for a psy-
chiatric examination of the defendant James E. Drope in
the above-entitled cause. Respectfully submitted, John
Morton, Assistant Circuit Attorney”,—which certainly
bears out what I said, that we had agreed to have a
psychiatric examination, Your Honor, before he went to
trial. That is the second memorandum.
THE COURT: Well, it will be overruled. These
matters have already been passed on before Judge Walsh.
And let me say with reference to this endorsement of
the witnesses, the Court has been assured by the Assistant
Circuit Attorney that those were mailed to your office
on the morning of June 19th, this memorandum was. And
your objection in claiming surprise now should have
been another reason urged on Judge Walsh in the [14]
Assignment Division. The case has been sent out to trial,
and your objection has no merit.
MR. WATSON: Let the record show that 1 had no
opportunity to make such objection before Judge Walsh
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as the case was assigned out of the Assignment Division
before I ever arrived there. I didn’t know it was on the
docket.
THE COURT: Well, the dockets are published. And
let the record further show—
MR. WATSON: The dockets are published but I had
no reason to believe that this case would be on the docket
or to look for it specially. My secretary didn’t find it.
She runs the docket in the cases and tries to be ready
for everything.
THE COURT: Your client was interrogated and he
stated that you would meet him down here this morn-
ing.
MR. WATSON: Judge,—
THE COURT: Let’s proceed.
MR. WATSON: —I don’t know what he said. Of
course, I wasn’t here, but I had matters in the Circuit
Court in St. Louis County this morning. And that is
where I went, and I could not possibly be in the Circuit
Court in St. Louis. I was involved in matters in the
Circuit Court of St. Louis County this morning, but
what my client said I don’t know.
THE COURT: I called Judge Douglas Jones. .
MR. WATSON: He said you called him; he told me.
I was still in his division. I had another matter on at
1:00 {15] o'clock.
THE COURT: Pardon me. Judge Jones stated to
me this morning that he just got through calling the
docket, that you were not assigned out, that you did
not have anything in his court preventing you from
coming down.
MR. WATSON: Judge, he didn’t know that I did
have something on his docket at 1:00 o’clock, and it was
11:30, this was. I didn’t leave that room until 11:30,—
THE COURT: This is—
-_MR. WATSON: —and I went to Judge Bardgett’s
room on a divorce matter.
THE COURT: Regardless. All right. Let’s proceed.
MR. WATSON: May I also put into the record that
all this colloquy that we have been going through has
21
taken place in the presence of the jury. And I feel in
looking at it it is going to work to the detriment of
the defendant. I don’t think it is fair. I have asked—
THE COURT: The trouble, Mr. Watson, with a lot
of these things, they are all an afterthought. You said
you wanted to make a record. You did not say that you
wanted to make it out of the presence of the jury. The
record may show the jury is in the courtroom, and this
was done at the Bench. And I am sure they haven’t heard
one word that was said prior.
MR. WATSON: I asked the Court prior to the ob-
jection if you wanted to—
ied
22
[23] STATE’S CASE IN CHIEF:
MARIANNE JOYCE DROPE, sworn, testified:
DIRECT EXAMINATION
BY MR. FRANK:
Q Please state your name.
A My name is Marianne Joyce Drope.
Q Marianne, what was your marital status on Jan-
uary 17th, 1969?
A I was living with my husband.
What is his name?
A James Edward Drope._ .
Q Is that the man sitting over there (pointing)?
A Yes, sir.
Q Did you have any children as a result of that
marriage?
A Yes, sir; I have five children.
Q What are their names and ages?
A August Lee Drope, James Edward Prope, Anita
Marie Drope, Pete Allen Drope, and Patricia Ann Drope.
Q How old is Pete?
A Six.
Q The oldest is six. And the youngest?
A She is nine months.
Q When were you married to James Drope.
A I have been married to him seven years. It was
December the 24th,— .
Q When was that, the 24th?
A The 24th.
Q You were—How old are you now?
A Twenty-four. |
Q You were seventeen at that time?
A Yes.
Q Had you graduated from high school at that time?
[24] A No, sir, just grade school.
Q Did you finish the 10th grade?
A No, sir.
2A TS tt PIED
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Q After leaving school, how old were yoy at that
time?
A Sixteen, I believe, or a little over.
Q At that time when you left school, what did you do,
mam?
A I worked for my mother and my parents.
Q How long after leaving school did you marry J im?
A Almost a year.
Q Again, you were seventeen. Turning to January
17th, 1969, which was a Friday, did your husband James
Drope have a job?
Sir?
Did your husband have a job on January 17th?
No, sir, he was unemployed.
What did he do when he was employed?
He worked for the—as a union truck driver.
Do you remember how much he had worked that
January?
A No. I would say not more than a week within
that month.
MR. WATSON: If your Honor please, I want to
make an objection to any further testimony on behalf
of this witness for the reason she and the defendant
are husband and wife.
THE COURT: Be overruled.
Q (Mr. Frank) When was the last time before
January 17th he worked consistently?
A Before then? It had been over two months. I
couldn’t say.
[25] Q Will you tell us where you were living on
January 16th or 17th?
A 3438 St. Vincent.
Q Is that in the City of St. Louis?
A Yes, sir.
Q Marianne, will you describe for us first the type
of building you were living in?
A It was a 2-family, brick flat, and I lived on the
2nd _ floor.
Q And, Marianne, will you tell us about this apart-
ment on the 2nd floor we are interested in?
OPOrPoOpr
24
A Two bedrooms, living room and kitchen.
MR. FRANK: Does the Court wish to see the pic-
tures? ;
THE COURT: Well, when you have them marked.
(Thereupon, the reporter marked two photographs
depicting living quarters, for identification as State’s
Exhibits 1 and 2, respectively.)
Q (Mr. Frank) Marianne, I show you that which
has been marked State’s Exhibit No. 1. Will you look at
that, please? Can you identify that picture?
A Yes, sir.
Q What is that a picture of, Marianne?
A The front entrance of the house where I lived at
3438 St. Vincent.
Q Marianne, does that picture fairly and accurately
depict the front of your house as it was on the 16th and
17th? .
A Yes, sir.
Q Marianne, I will show you State’s Exhibit 2. Can
you identify that picture?
A Yes, sir.
What is|that a picture of, Marianne?
A It is the stairway to the front door going up-
stairs where I did live.
[26] Q Does. that picture fairly and accurately depict
the steps going up to your apartment as it existed on the
16th and 17th of January of this year?
A Yes, sir.
MR. FRANK: Your Honor, at this time I would
like to offer into evidence—
MR. WATSON: We have no objection.
MR. FRANK: —State’s Exhibits 1 and 2, aiid ask
permission to pass these to the jury.
THE COURT: Very well.
(Thereupon, said exhibits were handed to the jury.)
(Mr. Frank) Marianne, on January 16th, which
was a Thursday, on that night did your husband leave
home at any time?
Neer £m ESPON ED ween
25
A Yes, sir, he left at 8:30 that evening.
Q And where was he going when he left home at
8:30 that evening?
A He said he was going to the store for groceries
and for milk for my baby.
Q And what did you do, mam, when he left?
A I watched television until about 11:00 and I fell
asleep.
When you fell asleep, was he home then?
No, sir.
What was the next time you woke up, Marianne?
At 1:00 o’clock to feed my baby.
That would be 1:00 A.M. on the 17th?
Yes, sir.
And did you feed your baby?
Yes, sir.
Q And what happened then?
-. Well, I just laid down and hadn’t quite fell asleep,
and ! looked at the clock, and it was about 1:30. And
I hess: somebody at the door, and the key was turning.
() What did you say?
A I said the key was turning in the door, and I
heara somebody open the door to come in.
(; After you heard the key turn in the door, did the
door open?
A Yes, sir.
Q And then did you hear anything?
A I heard my husband come in the steps because he
said, “Don’t be afraid, it is just me coming in.”
Q It was his voice?
A Yes, sir.
Q Marianne, when you heard that key in the door
and heard him say, “It’s is me”, were any lights on
in your apartment at that time?
A When he came up the steps, the landing, the
bathroom is off to the left, and he went in the bathroom
and turned the light on and went through the hallway
from there to the kitchen. And he went to the bathroom.
So when he turned the bathroom light on, the bathroom
light was on then. It wasn’t on before.
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Q Marianne, what did he do in the kitchen, did you
see or hear?
A He opened the back door. I heard him open the
back door.
Q What happened at that time?
A There was quite a bit of noise at once, and a bunch
of guys coming running in [28] all at once with my
husband.
Q Marianne, I wani to stop you. You said a bunch
came running in. Will you tell us, did any men come
from the front door?
Two from the front, two from the back.
The kitchen door you are talking about?
Yes, sir.
Is that five, counting your husband?
Yes, sir.
What happened when they came running in?
They were there before I had enough time even
to get up out of bed.
Q What happened then when they came running in?
A They forced me down on the bed and my husband
said, “(Done move, don’t scream or I’ll blow your brains
out.”
Q When you say they forced you down on the bed,
what do you mean, one or two or—?
A They all did.
Q Did each of the men grab an arm or a leg?
A Yes. And they proceeded to tie me up.
Q Marianne, you just said your hsuband said what
to you?
A He said to me not to scream or make any noise
or he would blow my brains out.
What was he going to blow your brains out with?
He had his gun with him.
Did you see this gun?
Yes.
Marianne, could you see these men?
Yes, sir. ’
I asked you a few minutes ago, Marianne, if there
were [29] any lights on in your apartment before your
3, Pe PO POY
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27
husband came in, and your answer was “No”. How can
you tell the Court and jury that you could see these
men, you could see the gun?
A The bathroom light was on. And where my bed
is there is a window light there, and my baby had torn
the shade enough, we could see the light from the out-
side on the bed. With the bathroom and that light
shining in the same direction, I could not miss seeing
them.
Q Marianne, your husband had the gun. What hap-
pened then? -
A Well, they tied me up first to the bed.
Q Who tied you up?
A Mike Barylski, and the others were holding me
down.
Q Did your husband help?
A My husband helped, yes, sir.
Q He tied your hands or legs, or what part of your |
body did he tie?
MR. WATSON: Your Honor, I will object to that
as being leading and suggestive.
THE COURT: It will be sustained.
Q (Mr. Frank) Marianne, what part of your body
did your husband tie?
A My hands and my legs to the bed posts.
Q While he was doing that, Marianne, who had the
gun?
A My husband, which he gave the gun to Raymond
Tuttle at that time.
Q After tying you to the bed, what happened, Mari-
anne? [30] Did your husband stay in the room?
A Yes, sir.
Q Was there any other weapon other than the gun,
Marianne, that Tuttle now was holding?
A My husband then went into the kitchen and got
a butcher knife.
In your kitchen?
Yes, sir.
What did he do with the butcher knife?
He held it to my throat.
PO PO
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28
(At this point the reporter marked a nightgown for
identification as State’s Exhibit 3.)
Q Marianne, I will show you what has been marked
as State’s Exhibit 3. Can you identify that?
A Yes, sir. That is my nightgown.
Q That is the nightgown you had on that night?
A Yes, sir.
(At this point the reporter marked a third photograph
for identification as State’s Exhibit 4.)
MR. WATSON: I am going to object to that exhibit
for the reason that that picture is apparently—the date
on the back of it shows it was not taken until June of
1969. ,
(The following proceedings were had out of the
hearing of the jury:)
MR. WATSON: And it is quite evident that the
picture shows that, that this whole matter was set up
by someone else and was not the original condition of
the room on the 17th day of January, 1969.
[31] MR. FRANK: Now, Your Honor, we will have
witnesses to testify as to when that picture was taken.
4 That picture was printed on the date on the back.
4 THE COURT: Overruled at this time, the Court re-
oer
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serving any further objections along that line, but it
may be identified.
(The following proceedings were had within the
hearing of the jury:)
Q (Mr. Frank) Now, Marianne, I show you State’s
exhibit No. 4. Will you tell the Court and jury what
that is a picture of?
A It is a picture of the bed where I was tied up,
and the rope, and shows exactly where it was and where
my son helped me get loose from it.
Q Marianne, looking at that picture, does that pic-
ture show the window you were talking about a mo-
ment ago?
29
A Yes, sir. |
Does it show the tear in the shade that you were
talking about a moment ago?
A Yes, sir.
Q@ Where is that tear?
A It is right alongside of the bed (pointing on ex-
hibit) where the window is.
Q Level with the head on the bed?
A Yes, sir.
MR. FRANK: Your Honor, at this time I would
like to enter into evidence State’s Exhibit No. 4.
MR. WATSON: Objection, Your Honor, we have made
in [82] the record before, until such time as the proper
foundation is laid. And also no date has been set as to
the time the picture was taken if what Counsel say is
right.
MR. FRANK: Your Honor, I might be able to as-
sist Counsel.
Q Marianne, were you present when the photographer
was taking pictures around your place with the officers?
A No.
Q You weren’t there at that time.
MR. FRANK: Your Honor,—
THE COURT: Well, if you state in the record you
will prove it.
MR. FRANK: Your Honor, the State will put on a
police officer who will testify that he was present when
this picture was taken.
THE COURT: When?
MR. FRANK: That will be the next witness, unless
you want ie to put him on right now.
THE COURT: When was that picture: taken?
MR. FRANK: That morning, January 17th, the day
it happened.
THE COURT: Ali right. It will be overruled.
MR. FRANK: All right. At this time may it be ac-
cepted into evidence?
THE COURT: It will be admitted into evidence.
[33] MR. FRANK: At this time I will pass it to the
jury, Your Honor.
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Q Marianne, did you see the other men that were
in the room-with your husband?
A Yes, sir.
Q ; Who were they?
A Roger Butler, Rayborn Tuttle, Mike Barylski and
another kid I don’t know.
Q You say “kid”. Are you talking—how old a per-
son?
A Sixteen.
Q Do you know this Butler, Tuttle and Barylski?
A They used to work on cars with my husband and
see him with them.
Q Marianne, how were your hands tied to this bed?
A Well, tied to the bed posts (indicating).
Q You mean straight back, Marianne?
A Yes.
Q They weren’t tied together?
A No, back (indicating).
Q Marianne, how about your legs, how were they
tied to the bed post?
A Spread.
Q Were they tied the same way, spread out?
A Spread out.
Q All right. Marianne, after you were tied to bea
in this manner, will you tell us what happened at that
time?
A They took turns raping me, first Roger Butler.
Q Marianne, while Roger Butler was having inter-
course with you, was anybody else on you at the same
time? °
[34] A No, but there was somebody over me.
Q Somebody over you. Over your head?
A Yes, sir. .
Q Who was over your head?
(At this point the witness placed her hand on her
face and began crying.)
-
MR. FRANK: May we have a moment, our Honor?
THE COURT: All right. Counsel, you may. Pardon
me, it would be better, I think.
. a ead
2
31
MR. FRANK: All right.
Q Marianne,-—
A Mike Barylski was over me.
Q Mike Barylski. What was Mike doing over you?
(At this point the witness shook her head and
sobbed and wiped her nose.)
THE COURT: Madam, pardon me, you are going to
have to do the best you can. If you need a recess, if
you have to have a recess,—
THE WITNESS: No, I will—
THE COURT: —+tell the Court. All right.
Q (Mr. Frank) Marianne, what was Mike Barylski
doing? —
A He put his privates in my mouth. .
Q Put his male organ ix yvcur mouth, Marianne?
A Yes, sir.
MR. WATSON: Just a minute. I am going to ob-
ject to Counsel commenting and leading the witness. I
think the witness—
[35] THE WITNESS: (Intervening) He put his pri-
vates in my mouth.
Q (Mr. Frank) Marianne, do you know about how
long Mike was on top of you?
A No, sir. They took turns. I couldn’t see the clock
and see the time exactly, no.
Q Did Mike have a discharge while he was on top
of you?
MR. WATSON: I believe—I am going to object to
thai for the reason we are not responsible for that. The
defendant is only charged with rape.
THE WITNESS: (Interjecting) And sodomy.
MR. WATSON: He is merely charged with rape.
THE COURT: Well, the objection will be sustained
as to that particular thing.
Q (Mr. Frank) You say Roger was having inter-
course with you at that time?
A Yes, sir.
Q Did Roger have a discharge at the time he was
on you?
IN BODEN Ds Cain eT LAI OEE SHES SY a °
82
MR. WATSON: Your Honor, I make the same ob-
jection. This defendant here stands charged with rape,
not what Roger Butler did.
THE COURT: Overruled.
Q (Mr. Frank) Marianne, I will ask you again. Do
you know if. Roger Butler had a discharge while he
was on top of you?
MR. WATSON: Just a minute. Your Honor, I am go-
ing to object to that as leading and suggestive.
THE COURT: Well, she can tell what happened. The
‘ [36] objection will be sustained as to it being leading.
; Q (Mr. Frank) Marianne, will you tell us what
4 happened while Roger Butler was on top of yor?
‘| A He had intercourse with me. Whether he hed a
: discharge, I could not tell you, I could not swear to tiat.
Q Marianne, when Roger got off, what happened then?
A Mike Barylski, and Roger Butler at the top.
Q Which position? .
A Ah, switched position.
Q Did Mike then have intercourse with you?
MR. WATSON: I object to that, Your Honor. It
would be leading and suggestive.
THE COURT: Counsel, the objection is sustained.
Q (Mr. Frank) What happened when Mike got on
top of you?
A Mike Barylski had intercourse with me while But-
ler was on top.
Q Will you tell what happened while Mike was on
you?
A All the time this was happening, Raborn Tuttle
had his gun at my head, at the same time my husband had
the knife at my throat. And they told me if J said any-
thing or screamed, he would blow my brains oxt. or kill
my kids.
Q Who told you that?
A Raborn Tuttle.
Q When Mike got off you, what happened then?
A Then there was this kid next. And then my hus- ;
band was at the top. They switched places; ‘,
fi
ithe ie NRRL LEI ANE A
33
Q Did you know this kid?
A I know him from seeing [37] him, yes.
Q Do you know his name?
A I can’t tell you his name, no.
Q. All right. After this teen-ager and your husband
were on you, what happened then?
A Then my husband had relations with me in the
rectum.
MR. WATSON: Your Honor, I am going to object .
to that; husband wife, Your Honor.
THE COURT: Well, I think in this particular case,
the objection is overruled, although we can take care of
that on argument. All right.
Q (Mr. Frank) What happened then after your hus-
band?
A Then there was Tuttle—Raborn Tuttle just alone.
He had intercourse with me.
Q Who held the gun at the time?
MR. WATSON: Your Honor, please, I am going to
object.
THE COURT: Pardon me. It will be sustained.
Q (Mr. Frank) Tell us what happened when Tuttle
was on you?
A Roger Butler held the gun.
Q Marianne, could you tell us whether or not you
could tell if any of these men were drinking?
A They smelt of it. I couldn’t say they were.
Q Marianne, what were you thinking, what was your
state of mind when these acts were committed upon you?
MR. WATSON: Your Honor, I object to that for the
[38] reason that it invades the province of the court
and jury and it calls for speculation and conjecture.
THE COURT: Overruled.
MR. FRANK: Your Honor,—
THE COURT: It is overruled. You may proceed.
~ Q (Mr. Frank) Marianne, what was your state of
mind? What were you thinking when these acts were
being committed upon your person?
x
)
‘
3
LOS IL OE OLN IOS
oA:
34
MR. WATSON: I object further, Your Honor, for the
reason the question is too general, not specific as to time
and act.
THE COURT: You better come up here just a minute.
(The following proceedings were had out of the hear-
ing of the jury:)
THE COURT: What else do you have from the State?
MR. FRANK: I have a case citation it is proper on
a rape case; I have the citation, Supreme Court, 1964,
case.
THE COURT: What do you expect the answer to be?
MR. FRANK:» The answer that would be elicited, that
she kept her eyes open at all times so that she would
not forget anything that happened.
MR. WATSON: That wasn’t the question. “What
were you thinking?” Whether her eyes were open—
F THE COURT: Just a minute. You need not argue
‘ it any further. I want to know what your answer is?
What is your [39] citation? |
MR. FRANK: 380 S.W. 362. |
THE COURT: All right. The objection is weereuied.
(The following proceedings were had within the hear-
ing of the jury:)
THE COURT: You may answer the question. Do
‘1 you remember the question?
3 A Yes, sir. He asked what I was thinking about at
{ the time. Well, the only thing I could do was keep my
a asic
Ms echt
a eyes open and keep track of everything that was going
: on, which I could see everything that was going on at
the time because I had been through this with my hus-
‘ band before, and I know how he acts, similar.
: (At this point the reporter marked strands of a
} clothes line for identification as State’s Exhibit 5.)
Q (Mr. Frank) Marianne, I show you that which
has been marked State’s Exhibit No. 5. Will you look
p at that, Marianne. Can you identify that, Marianne, for
the Court and jury?
oO
35
A This is the clothesline they tied me up with.
Q Did you have that type of line in your house at
the time, Marianne?
A No, sir.
Q This was not in your house at the time?
A No, sir.
MR. FRANK: At this time, Your Honor, I as} -nat
State’s Exhibit 5 be entered into evidence.
[40] THE COURT: Well,—
MR. WATSON: Before it is entered, may I ask a
few questions on voir dire?
THE COURT: Very well.
VOIR DIRE EXAMINATION
BY MR. WATSON:
Q May I have that. Mrs. Drope, you identify this as
being a clothesline or something that you were supposed
to have been tied up with. Do you have any marking
on there by which you can identify it?
A Do I have any marking?
Q That’s right.
A No, sir.
Q In other words, you are not sure whether this is
the same clothesline, as we will call it, as was used or
not, are you?
A I think so.
MR. FRANK: May the record show that the next
police officer will testify—
THE COURT: Pardon me. The exhibit will be kept
out until the next police officer testifies. P
MR. FRANK: All right.
(At this point the reporter marked a revolver for
identification as State’s Exhibit 6.)
DIRECT EXAMINATION (Cont’d)
BY MR. FRANK:
Q Marianne, I show you State’s Exhibit 6. Will you
look at that and will you tell the jury what that is?
AT RN TN
SR GR STEROID TLE LEE IGE ELIE LE RAPE BSL LS HOARE IO TING De SS TR
° pe tl ba ios
A ih ith Rint RR apis Maca Ha as IRE SR A ie pA. =]
36
A This is the gun that was used on me at the time
I was raped.
[41] Q Do you know whose gun that is?
A Yes, sir. My husband’s—James Drope.
Q Have you seen that gun before that particular
night?
A Yes, sir; many times. .
Q Marianne, can you tell the Court and jury how
long these acts took place upon your person?
A It was about 1:30 because I just looked at the
clock when he, my husband, opened the door, and I
believe it was about 3:30, maybe quarter to four when
the police got there. And they had just got there within
thirty minutes—I wouldn’t say; ten minutes at the very
most.
Q The police got there within ten minutes?
A Yes, sir.
Q And the police got there about 3:45 or the latest
was about 3:55?
‘A Yes, sir. .
Q Marianne, when they left, did your husband leave
— with them?
A Yes, sir.
Q When they left, what position were you left in?
A_ I was tied to the bed posts, and, as I said before,
with my arms and legs stretched. They had put a
towel and a scarf around my mouth to gag me, with the
cotton in my mouth first. They left me tied, and they
covered me up with a sheet.
MR. FRANK: I'll get my evidence in.
(The reporter then marked an envelope allegedly
containing cotton, for identification as State’s Ex-
hibit 7.)
[42] (The reporter then marked a towel, for identifica-
tion as §tate’s Exhibit 8.)
(The reporter then marked a scarf, for identification
as State’s Exhibit 9.)
Q Marianne, I show you that which is marked State’s
Exhibit 7. Will you tell the Court and jury what that is?
A What it is? It is tissue paper.
THE COURT: What was the answer?
87
A It was tissue paper they had stuck in my mouth
-before tue rape.
Q (Mr. Frank) I will show you now that which has
been marked State’s Exhibit No. 8. Can you tell us
what that is, please?
A A towel.
Q What was the towel—how did they use it?
A They put the scarf around the neck and tied the
towel around the mouth after they put tissue paper in
my mouth.
Q What went over your mouth directly, the towel or
the scarf?
A The towel and then the scarf.
Q I will show you that which has been marked as
State’s Exhibit 9. Can you identify that?
A Yes.
Q What is that, Marianne?
A It is the scarf that was over my mouth, and the
towel.
Q All right. Did they just lay it over your mouth?
A No, it was tied in the back with a knot.
Q The towel and then the scarf? The scarf went on
top [43] of the towel over your mouth?
A I am trying—just a minute.
MR. WATSON: Well, Your Honor, I object. That is
repetition. Counsel went over that before. The witness
has already answered.
THE COURT: Overruled.
Q (Mr. Frank) Will you answer directly which
“went on top, which was tied?
A The scar:, and then the towel.
Q Did your husband or any of the other men say
anything to you, Marianne, when they left?
A Yes, sir. They say if I ever said anything about
this what had happened, they would be back and kill my
kids. .
MR. WATSON: Your Honor please, I am going to
move that this be stricken. It doesn’t differentiate be-
tween certain people that were supposed to have been
there. Counsel had two questions in one.
%
>
2
14
woke
TSS ee eee
meee
bare
me pints sts
38
THE COURT: Well, pardon me. He can separate
them.
Q (Mr. Frank) Marianne, did your husband per-
sonally say anything?
MR. WATSON: I object to that as leading and sug-
gestive, Your Honor. Counsel can certainly ask who it
was.
THE COURT: Who said anything, and what.
Q (Mr. Frank) Who said anything, and what?
A. I believe Bob Butler and Raborn Tuttle, both. And
with this my husband said, “This isn’t the first time this
is going to hap- [44] pen”, right after.
MR. WATSON: They said, “This is the first time?”
A They said they would be back; this wasn’t the first
time it was going to happen. :
MR. WATSON: Who said that? Tuttle?
A My husband.
MR. WATSON: He said it?
A Yes, sir.
MR. WATSON: All right. ,
(Mr. Frank) Marianne, how did you get free
from the bed?
A My little girl, 3, and my boy, 6, apparently couldn’t
sleep, awake, but as soon as they left, they got up and
came to the room where I was. And my little girl was
scared. So she went back and told my oldest boy named
August to come in there. I heard her. They came in
there and seen me and went right*to the kitchen and
got a knife and untied me, cut the rope.
Q What did you do then?
A I proceeded to go downstairs as soon as I could
make it down the steps and asked the lady downstairs
to call the police for me please, and she did.
Q How soon after the phone call did the police ar-
rive?
A TI’ll say not more than ten minutes at the very
most. I couldn’t say exactly but within minutes though.
Q Did your husband return that morning?
A He was just coming in as they came. As soon
as they got there he started in the door, came back.
Oo
39
[45] Q What happened at that time, /Marianne?
A One was at the bottom of the steps and the other
one was at the top, talking. And when he started to talk,
I said, “Please not let him in. He had a gun and he
just threatened me a while ago, and not let him in.”
Q Was your husband present during the time all
these acts were committed upon you?
A Yes, he was standing right over me. He was
telling them what to do.
MR. WATSON: I move that be stricken as sot re-
sponsive. A voluntary statement on the part of the wit-
ness.
THE COURT: The statement, “He stood right over:
me”, may stand. The balance—
MR. WATSON: The jury instructed to disregard it.
THE COURT: -—the jury is instructed to disregard.
Members of the jury, during the trial, when the Court
sustains an objection, the jury automatically disregards
that.
MR. FRANK: Your Honor, at this time the State
introduces Exhibits 7, 8, and 9 into evidence.
THE COURT: Very well.
MR. WATSON: May I see the cotton? This is the
envelope. Is this cotton that was taken?
MR. FRANK: Do you have any objection?
MR. WATSON: No, we have no objection.
MR. FRANK: May it be entered?
THE COURT: Very well.
[46] Q (Mr. Frank) Marianne, after your husband
was arrested, what happened then? .
A They took me to the—the police officers took me to
City Hospital for an examination.
Q Marianne, did you have any physical injuries to
your person?
I had a very bad infection.
Did you have any marks on your body?
I had marks, yes, on my face and my neck.
What hospital? City Hospital “1”?
Yes, sir, “1”.
After the hospital, what happened, Marianne?
OpO pO p
We oS
spokane! SAAS yale Br
40
A_ I went to the police station and gave a report on
what had happened. I went to the Warrant Office from
there.
Q The Warrant Office in the Circuit Attorney’s Office?
A Yes.
Q Marianne, on the day uf the 17th, some time in
the afternoon, were you present when your husband was
questioned by the police?
A Yes, sir.
Q Were you present when he was advised of his con-
stitutional rights by the police?
A Yes, sir.
Q Did he make any statement to the police in your
presence?
A Yes, sir.
Q Marianne, what did he tell the police in your pres-
ence?
A Just what he said?
Q That’s right.
A Just what he said or what the whole—?
[47] Whatever he said, that is the question.
A He said—he admitted that he did it, and he said
did it as a joke. He said it was all just a joke.
Q Did he go into detail and tell the police what had
happened?
A He said he was with Raborn Tuttle, Roger Butler
and Mike Barylske, and came up to my house with the
intention to rape me.
Q Marianne, since this incident have you and your
husband lived together as man and wife?
A We have a very short time, yes, sir.
Q How long after this incident did you live together
as man and wife?
_A_ Three to four months.
Q Where were you living at that time?
A Well, we lived downstairs from my mother’s house,
7918 South Broadway.
Q Will you tell us why you went back to live with
him?
A Because—
a —
41
¥
o
4
anor _ |
MR. WATSON: If your Honor please,—I’ll withdraw f
the objection. ;
THE COURT: All right.
A Because he was trying to make me—make out he
wasn’t well. The boy was telling that he was going to a
psychiatrist, it was best to go with him, and went with
him with my other friend to see if there was any hope
left because of my children. And when he went to the
psychiatrist and I talked to him, he says it would be best
if we would try to get along together, [48] that he _.
thought he would be all right. But he said he would go én |
and go to work, try to take care of the children. That is |
what I wanted,—my children taken care of.
Q (Mr. Frank) Marianne, do you have your children
now at this time?
No, sir.
Where are they?
I don’t know.
When was the last time you saw your children?
Tuesday morning.
Do you know who has your children?
No, sir.
Does your husband or anyone on his side of the
family have them?
MR. WATSON: Your Honor, I object to that as be-
ing leading and suggestive.
THE COURT: Well, she said she didn’t know. Be
sustained.
Q (Mr. Frank) What have you done, Mar‘anne, try- \
ing to find your children?
A I went to the police. They suggested that I talk
to the Cirecuit—
MR. WATSON: I can’t hear you.
A I went to the police station to search, and they sug-
gested that I speak to the Circuit Attorney to see what
they thought I could do about it. And I went to the relief
lady again.
Q (Mr. Frank) Marianne, on Tuesday when you last
saw your children, where were they?
A 17918 South Broadway, [49] at my house.
OPO PO POY
Peera Se ee es a ee
’ to 2 we" OF 4 EOP ‘at Rae ar
nt re eee emer
see Sara ect Ne
ee ere ee
42
Q Were they with anyone at that time?
A They were with my stepfather.
MR. FRANK: I have no further questions at this
time, Your Honor.
THE COURT: All right. I think now would be a
good time to take-a short recess. And, members of the
jury, keep in mind the admonition the Court has given
you. The court will be in recess.
(Court in temporary recess)
CROSS-EXAMINATION
BY MR. WATSON:
Q Mrs. Drope, when were you and your husband
married?
We were married in December.
The year, please? What year?
Wait just a minute.
Beg pardon?
Just one minute.
I am sorry. I thought you said in ’33?
No. December 25th, 1960, I believe,—’61.
You were married on Christmas day, on Christmas
Day in ’60 or ’61?
A The 16th. I am sorry.
Q I am sorry. I understood you to say the 25th.
Now, Mrs. Drope, in 19—how leng—You and your
husband went to live together after you were married
in ’60 cr 61? Was it ’60 or 61?
A ’61, I believe.
Q ’61. Now, tell me, after you were married. were
you and your husband divorced?
A After we were married, no, [50] sir.
Q Have you ever been divorced from James Drope?
A No, sir, |
Q You never have. And then you continued, I assume,
to live with him as his wife from ’61 until 1968; is that
right, or 69?
A Off and on.
Q Off and on. You had separations during that period
of time?
OPOPL POY
43
A Yes, I did.
Q And then you would go back together again, is that
correct?
A Yes, sir.
Q Now, when you had these separations, what was the
cause of the separation?
A He would not work part of the time and take off,
not work, would not support the children. I had no other
choice. ;
But ‘to leave him, is that right?
I had to have somebody to help me, yes. -
And where did you go?
He left.
Pardon me, when you left, where did you live then?
Where did I live then?
Yes.
Well, I stayed at my Mother’s part of the time.
I did the best I could.
- Q Now, I understood you then during this period of
time off and on was the period he would not work; is that
correct?
A Yes, sir.
Q And, Mrs. Drope, you did live, with the exception of
[51] these separations, for these nine years together as
husband and wife?
A As husband and wife, yes.
Q That, is correct? Is that right?
A Yes.
Q And he did work quite a bit of the time, did he not?
A To nail it down right now, I couldn't say; maybe
half and half, maybe a little more.
Q Now, Mrs. Drope, didn’t he lose jobs because of
his nervous condition, do you know?
A Not to my knowledge.
Q Not to your knowledge?
A No, sir.
Q But when he worked, he always contributed to the
support of you and the children, is that right?
A No, sir.
Q Pardon?
A No, sir.
[PO PO PO PO
SA AEM DR i A AEA AGP 2 bk tpg Femioaaia Le
He did not?
No, sir.
What would he. do with his money, if you know?
I don’t know.
Mrs. Drope, since this thing happened you have
lived together I think you said for three months, approxi-
mately,—
A Approximately.
Q —as husband and wife?
A Yes, sir.
Q And during that period of time he has contributed
to the support of you and the children, has he not?
A Part of the time.
Q Part of the time?
A Yes, sir.
[52] Q Which part now? I mean by that, is that the
y time when you were separated that sad didn’t support
you?
A Never when we were separated.
: Q What?
: A Never when we were separated.
Q Never when you were separated. Mrs. Drope, you
talked with the Circuit Attorney about this case, have
you not?
Talked to him about it?
Yes, sir.
I read the statement.
You read the statement?
Yes.
Whose statement?
My husband’s statement, the boys’.
You read all those statements?
Yes, sir.
Where did you read those?
At his office. '
In the Circuit Attorney’s Office?
Yes, .
And when did that happen?
Hmm, that was, I believe, about a month ago or
somewhere.
Q About a month ago?
‘O>e >
PO POPOPO PO PO PO >
OEE GABON LILES CBP SOLE FG LE ALY IIO’ SALE Da anal
pe ee ee
saci Pt OE Lat: ee
45
A I think so.
Q All right. Now, then, did you talk to anybody from
the Circuit Attorney’s Office since that time?
None other than coming here.
Beg pardon?
None other than the other day when I was here.
That was Monday?
Yes, sir.
Pardon?
Yes, sir.
And how did you get here that day?
I came in a [53] car.
You came in a car?
Yes, sir. —
Your car?
No, sir.
Whose car was it?
A man that I know, her husband.
Some people brought you here?
Yes, sir.
Now, Mrs. Drope, right after this happened, back
am +"
OPOPOPO>OPOPOP>O>O>D
on the 12th day of February, 1969, you came to my of- ~~
fice, did you not, with your husband?
A Yes, sir.
Q And we discussed this matter?
A Yes, sir.
Q And at that time didn’t you tell me that you felt
your husband was sick and needed psychiatric care?
A Yes, sir.
Q And, Mrs. Drope, after this discussion you did not
want to prosecute your husband, did you?
A No, sir, I did not, and after talking to you I said
I would not. _
Q And you signed, Mrs. Drope,—1’ll hand you here—
MR. WATSON: Will you mark this please as the de-
fendant’s exhibit.
(The reporter then marked a statement for identifi-
cation as Defendant’s Exhibit “A”.)
MR. FRANK: May I see that, please?
MR. WATSON: Sure (handing exhibit to Mr. Frank).
Peat:
ink Mauer a
BY ue TREN ARE
46
THE WITNESS: You want me to answer that ques-
tion completely?
THE COURT: There is no question pending now,
madam.
[54] Q (Mr. Watson) Mrs. Drope, I am going to hand
you the Defendant’s Exhibit “A” and ask you if that is
your signature?
A Yes, it is.
Q And you signed that, did you not?
A I certainly did.
Q On the 12th day of February, 1969?
A Yes, sir.
Q And at that time, Mrs. Drope, you didn’t want to
prosecute your husband, did you? You felt he was a
mental case, is that right?
A You told me you would make an appointment for
him to see a psychiatrist, you thought it would be best
for me to go with him, and this is what I done.
Q Yes.
A At that time I agreed with you, yes.
Q That’s right. And you and your husband went to
see Doctor Shuman, a psychiatrist; isn’t that correct?
A Yes, sir.
Q And he examined your husband, and he also spoke
to you quite a bit, did he not?
A Yes, sir.
Q And you felt, did you not, Mrs. Drope, after that
that your husband was a mental case?
A He told me that he had some problems, the doctor
did.
Q The doctor told you that?
A That he needed to see somebody to talk to. Insefar
as what was wrong with him he could not tell me, that
he thought it would be better if I were with him.
Q If you were with him?
A Right.
[55] Q That is, live with him; is that what he meant?
A What he meant I don’t know exactly. He said I
would be better with him, what he told me.
47
Mrs. Drope, when you talked to the doctor, did you
tell him that the cause of the separations that you had
were caused because you would often leave him because
of his sexual perversion?
A Did I tell the doctor that?
Q Yes.
A TI cannot say for sure. I probably did because he
asked me about it, and I told him exactly. He asked me
and I told him.
Q And you also described to him, Mrs. Drope, some
very unusual acts, sexual acts on behalf of your husband,
is that right?
A That’s right.
.Q All right. That is the situation. And, Mrs. Drope,
do you recall that at one time while you and your hus- —
band were together that he blacked out and rolled down
a pair of stairs—stairway, rather; do you recall telling
the doctor about that?
A I never told anybody he blacked out. I seen him
roll down steps, yes.
Q Beg pardon?
A Yes, sir, I seen him roll down steps, yes, sir.
Q Do you know what was the cause of that, why he
rolled down the steps?
A The only thing I can tell you is what hey told
him many times at City Hospital, that is something he
does upon hisself.
[56] Q Something he does upon himself?
A Yes, sir.
Q Let me ask you—Did I interrupt you?
A Go ahead.
Q May I ask a question?
A Yes.
Q All right. When these scenes occurred, the usual
thing you described to Doctor Shuman, would that be
the result of some dispute or argument between you and
your husband or would he just go into one of these things
and fall down the steps?
A Usually when he doesn’t get his way or is worried
about something. He doesn’t say anything about it. I
HSI we oo on eos ena NOH RTE TAO OMT TONE DIET SEL SSE TNT TIE
48
can’t say exactly. It is more what he would say. I don’t
know the reason.
Q Well, Mrs. Drope, during the period of your mar-
ried life and up till now your husband has always been
very nervous, has he fot?
A At times.
Q You mean varying at different times?
A Not as nervous since he has been, since this inci-
dent, no.
Q Tell me, when did you go back to live with him,
Mrs. Drope, after the 17th day of January of this year?
A I believe it was the last part of April, somewheres
around in that, I don’t know exactly.
Q When you came to my office with him, you were
not living together as husband and wife at that time?
A No, sir.
Q You were separated?
A Yes, sir.
[57] Q But then you went back and lived together
about three months, sometime in April? And then you
wouldn’t be up until now. April and May. Would it be
before May, would it, excluding March?
A Be around the 1st of April, I couldn’t say. It is so
mixed up.
Q All right. Well, Mrs. Drope, if I recall your testi-
mony, you said the doctor said that Mr. Drope needed
treatment, is that right?
A He said he had some troubles, but he should go up
there and talk to them at Malcolm Bliss, but Jim would
not go.
Q Do you know whether or not he has visited Malcolm
Bliss, of your own knowledge?
A Of my own knowledge?
Q Yes, mam.
A Ah, he told me he had been.
Q He told you he had been. He had been going to
Malcolm Bliss?
i
;
ji
:
i A I think he went there once. I don’t know about
any other time.
Q Ai least one time you know of it?
ae ch
49
A Yes, he told me.
Q Yes. Now, Mrs. Drope, I don’t like to go into
these things. Some things are necessary. This exhibit,
State’s Exhibit 4, the picture of the bedroom with the
’ bed and the rope lying around on the floor, would you
look that that, please?
A Yes, sir.
Q Now, was the bed in that position the night that
this was supposed to have happened— .
A Yes.
[58] Q —or did happen, supposedly? It was sitting
right in the room in that manner; it wasn’t over in the
~ corner anymore?
A No, sir.
Q It was just like that, is that right?
A Right.
Q And now I believe you named—May I have it (re-
ferring to the exhibit). You named four men. Was your
head at the top of the bed?
A Yes, sir.
Q And the back of the top of the bed was against the
wall and right near that shade with the hole in it; is
that right?
A Yes, sir.
Q Now, you have described here to the jury on direct
examination that one man was having sexual intercourse
with you, and one man was, I think you said, over your
head. Now, if he was over your head, I presume his
feet would have to be up against the top of that bed, is
that right?
(Witness shaking head).
That is not right?
No.
Well, in what position?
Standing. f
Oh, he was standing?
Yes, leaning over.
Over the side of the bed?
Uh-huh.
t
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50
- Q Oh, I see. And the other man was supposed to be
having intercourse with you at the same time?
A Yes.
Q Did you, Mrs. Drope, scream or holler or try to
seck help?
A Would you scream and holler with a gun at [59]
your head and a knife at your throat?
Q~ Probably I wouldn’t but I am asking you if you
did?
No, sir.
You didn’t make any outery?
No, sir.
Didn’t attempt to rouse your children?
My children were plenty aroused.
But they didn’t come to your help?
I guess not.
PO PO POP
(Witness starts to cry again)
Q Still after all this happened, Mrs. Drope, on the
12th of February you didn’t want to prosecute your hus-
band, and you thought he was a mentally sick man and
thought he needed help, is that right?
A I thought if there was a last possibility. I had five
children which I loved very much. If he was sick, I would
try everything I could, yes.
Q Weren’t you convinced that he was sick after talk-
ing to Doctor Shuman?
A No, sir.
Q You were not convinced. What is more convinc-
ing—
MR. FRANK: Your Honor, I am going to object to
this line of questioning.
A He did not tell him—
MR. FRANK: Just a minute. Will you approach the
Bench, please.
(The following proceedings were had out of the
hearing of the jury:)
MR. FRANK: Judge, he has not raised any defense
of [60] insanity under the mental health statute. We
igen aio
51
talked about this. He is going into it directly from the
back door. He is trying to get in from the back door
what he can’t get in from the front door.
MR. WATSON: That may be a good way of describ-
ing it, but I think this witness, and his wife, living with
him for nine years, certainly can express her opinion, ©
being the prosecuting witness, as to his condition.
THE COURT: As to his health, but regardless of
that now, the record may show this has been brought,
and Mr. Watson has stated that he hasn’t pled iusanity.
MR. WATSON: That is right.
THE COURT: But he is setting it up—wait a min-
ute. He is setting it up as a condition as a whole. He
also brought in falling down these steps.
MR. WATSON: That is right.
THE COURT: That he would be incapable of doing
these things; if he was doing it physically, it would be
an unusual situation, due to his physical, general ner-
vous condition and not insanity in the sense.
MR. WATSON: Not as set forth in the statute.
THE COURT: Well, now, that is the very thing that
you would eliminate. :
MR. WATSON: I say not as set forth in the statute.
THE COURT: Well, I'll let him go into it. The door
[61] has been opened. All right.
“(The following proceedings were had within the
hearing of the jury:)
Q (Mr. Watson) Mrs. Drope, I believe you told Coun-
sel ~ the State that you don’t ‘know where your children
are?
A No, sir.
Q Mrs. Drope, didn’t you leave your children with
your stepfather?
A They were with my stepfather, yes.
Q And you left them there with him, did you not? »
A Yes, sir.
Q And did you ever find out from him what he did
with the children?
A As far as I know, my husband came in.
a
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NF, pg SELLE SE OLE! OIE RSID
52
Q As far as you know, your husband came to your
stepfather. Do you know that your stepfather turned the
children over to your husband?
A Yes.
Q I am asking if you know that. Do you know that?
A Yes.
Q Now, Mrs. Drope, can you tell me please what
caused you to change your mind after the 12th of Feb-
ruary, when you signed this affidavit, and made your de-
termination that you wanted to go ahead and prosecute
your husband?
A Because my husband tried to choke me, tried to
kill me. .
Q When was this?:
A Sunday night.
Q This past Sunday night?
A Yes, sir.
I see. That is when you made up your mind that
you [62] wanted to prosecute him,—
Yes, sir.
—is that right? And where did that occur?
In my home.
On South Broadway?
Yes, sir.
79—what is it?
7918.
7918 South Broadway?
Yes, sir.
Mrs. Drope, had -you called up your husband and
asked him to come to see you at your home on Sunday
night?
No, sir.
You did not?
No, sir. I would never do that.
Beg pardon?
I would never do that.
And you never did that, of course?
That’s right.
Did you have a discussion with him on the telephone
about some money that he had mailed to you for the sup-
port of the children and you said you didn’t get it?
ODPOPOPoO POY
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OPO PO PO
— r _ _—
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AS SR
53
A Yes, sir.
Q And you asked him to bring that money and give
it to you?
A He said he left the message with my mother. That
is why he called. He sgid he would be there in the morn-
ing and bring the money down, which was twenty dollars.
Q And did he come there with the money?
A Yes, sir.
Q Now, was that the time he was supposed to have
choked you? -
A Sometime that next morning, 1:00 o’clock, sometime
in the morning. He kept me up all night.
[63] Q Was this Monday morning you are talking
about?
A Sunday night.
Q When was it when you talked to him on the phone?
Was that Sunday morning?
A It was Sunday after—evening.
Q Pardon? < ; ;
A It was Sunday evening wien he called and said he
would be by in the morning, and he came by.
Q He was by Sunday night?
A He said he would be by Monday morning.
Q Was there.any specific time or set a time?
A No, sir. /
Q You expected him then, I presume, about eight or
nine o’clock on Monday morning? :
A Yes, sir.
Q And did you have the children with you there
then?
A Yes, sir.
Q And when was it that you turned the children over
to your stepfather? :
It was that Monday.
The same Monday?
After he had choked me.
What?
After he had choked me.
‘He came there Monday morning and choked you?
He came there Sunday night after he had called
and said he wouldn’t be there till morning. He came—
Q He came Sunday night?
PO PO PO Pp
PBA IIE LOREM LS I IF EN ML HOE AE SSIS POI
Whaat By ae’
54
A Yes.
Q Did he give you the money Sunday night or did he
return on Monday morning?
A He gave me the money and he stayed there; he
didn’t return.
[64] Q did you ask him to stay?
A No, sir.
Q Did you tell him to get out, you didn’t want him?
A’ Yes, sir.
Q And he didn’t do it?
A No, sir.
Q Did you call the police?
A Yes, sir.
Q That night you called the police?
A Uh-huh. -
Q To take him out? Did they come there that night?
A You, me.
Q Did the police refuse to?
A They came there and he turned it around.
Q They came there and he turned it around. What
do you mean by that?
A He said he just wanted to talk to me, and that is
the way they left us. Dispute between—
Q That there was a dispute between you and your
husband?
A Yes.
Q And had you told the police ~~ he had choked you
that night?
A He didn’t do it then. It was after.
Q It was after that that he did? A
A Yes, sir. ~
Q Tell me, where did you go then on Monday when
you turned the children over. to your stepfather?
A_ I went to a friend’s house, a woman I know.
Q And how long did you remain there?
A Remained there for two days until I found a place.
~Q You found a place to live?
- Yes, sir.
“Q You moved away then from your mother’s home;
is that [65] correct?
A ‘or the time being.
} be ey bern
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55
Q And you are living at that place now, are you, and
have been since a week ago Tuesday or Wednesday?
A Yes.
Q A week ago today, is that right?
A Yes, sir.
MR. WATSON: I believe you may inquire. That is
all, Your Honor. Pardon me. Just a minute, please.
Q (Mr. Watson) Mrs. Drope, could it have been
Saturday night instead of Sunday night that Mr. Drope
came there with the money for the children?
A No, sir.
Q it was Sunday night. You didn’t see him at all on
Saturday?
Yes, he came by.
He was there on Saturday night?
Yes, sir.
Did he give you money that time?
No.
He did not. He didn’t stay there Saturday night?
Overnight, no.
He then returned on Sunday night. is that correct?
Yes, sir.
Did you have a discussion about money Saturday
night or Sunday?
I believe Saturday night he said he would try to
see that I had some money.
Q And then he brought some money there on Monday
morning?
A Sunday night.
Q Sunday night. And he remained there then, and that
was the time that the police were called?
A When he was [66] choking me.
Q And he said it was a family quarrel and things of
that nature, and you didn’t take any action, is that right?
A Yes, sir.
Q_ And he remained there the rest of that night until
the next morning?
A He sure did. I was up all night.
Q You were up all night?
A Yes, sir.
Q Was he up all night?
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56
Yes, sir. He kept me up.
He kept you up?
Yes, sir.
Well, then, did he leave on Monday morning or
did you leave?
A He left on Monday morning. He said he was going
to work.
Q And you left after that?
A Yes, sir.
Q And you turned the children over to your father-
in-law or stepfather?
A Yes, sir. He was there when I left.
Q Did you tell him that you were going to get a
baby formula for the children when you left?
A My stepfather knew exactly why I was leaving.
Everybody knows.
Q Is that what you told him, you were leaving to
get a formula for the baby?
A Yes, sir.
Q And you didn’t return after that, did you?
A No, sir,—
MR. WATSON: That is. all.
A —but my stepfather knew.
[67] MR. WATSON: Yes.
‘O>O>
REDIRECT EXAMINATION
BY MR. FRANK:
Q Marianne, that Defendant’s Exhibit “A”, will you
read that out loud, Marianne?
A (Reading) “Marianne Drope states that I do not
desire to prosecute my husband James Drope on the
charge of sodomy of which I complained to the police of
the City of St. Louis on the date of January'17th, 1969.
My reason for not proceeding with this prosecution is
that I believe my husband is suffering from a mental
condition. We have five small children. I further believe
if my husband receives treatment for his mental condition
from a psychiatrist, that he will be much better off than
having been prosecuted for this offense.”
57
Q Marianne, did he ever get any treatment for this
condition after the initial visit to the psychiatrist?
A I could not tell you. As far as I know, no.
Q Marianne, the charge on this paper is sodomy. That
is not what we are proceeding on. This is a charge of
rape that we are proceeding on,’ isn’t that right?
A Yes, sir.
Q Marianne, you stated that you talked with the Cir-
cuit Attorney about a month ago. What circuit attorney
did you talk to a month ago? That was me, wasn’t it?
Yes, sir.
Where did you talke to me?
In your office.
Is that upstairs or downstairs?
Upstairs; I [68] believe.
Is that the Warrant Office we talked in?
. Yes,
Why were you at the Warrant Office?
MR. WATSON: Well, Your Honor please, I must ob-
ject to that for the reason it is quite apparent that what
the Circuit Attorney is asking, whatever she was at the
Warrant Office for would be immaterial to any issue in
this case.
MR. FRANK: Your Honor, it happens to be a part
of this case, another defendant in this case, another one
of the men.
-MR.WATSON: Well, Your Honor, we are only try-
ing this case. We are not trying any other case.
MR. FRANK: He asked about—
THE COURT: Pardon me. Just a minute. You bet-
ter both step up here.
OPO PO PO >
(The following proceedings were had out of the hear-
ing of the jury:)
THE COURT: What is the probative ->lue?
MR. FRANK: He raised the qtestion seeing the
woman thirty days ago. I saw the woman thirty days ago
to swear out a warrant against the other man in the
inquiry. That is all I want the jury to know; not even
working on her husband’s case at the time.
MR. WATSON: I can’t see the—
‘
;
:
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58
THE COURT: Pardon me. I don’t see the materiality
[69] of this. ;
MR. FRANK: He raised tHe question.
THE COURT: What question?
MR. FRANK: He raised the question that I saw her
thirty days ago.
THE COURT: Is there anything wrong with that?
MR. WATSON: I don’t think there is.
THE COURT: You can argue it. It is your duty to
interview witnesses before you put them on.
MR. FRANK: I wasn’t interviewing her as a witness.
THE COURT: It makes no difference. You had a
right to interview her. Let’s proceed.
MR. FRANK: All right. Thank you.
(The following proceedings were had within the.
hearing of the jury:)
Q (Mr. Frank) Marianne, when you signed this docu-
ment, whose office were you at?
A Mr. Lester Watson’s.
Q You were at Mr. Watson’s office?
A Yes.
Q Who was there at the office when you signed this
copy? .
A My husband and his secretary.
Q Nobody else with you?
A No.
. Q Marianne, in the seven years you were married to
James Drope, did he ever at any time have a blackout?
A Not to my knowledge.
Q. During the seven years of marriage did he ever
complain {70] of head problems that would cause a black-
out?
A No more than bad headaches,
Q Did he ever say that he had blackouts?
A No, he never told me that.
Q During the seven years of marriage did you ever
see him have a blackout? ©
A No.
MR. FRANK: No further questions.
59
RECROSS-EXAMINATION
BY MR. WATSON:
Q Marianne, when he fell down the steps, did he have
a blackout?
A Not when he got right up, no.
Q . You mean when he got down to the bottom of the
steps? iiow many steps were there?
A Which one? I don’t know which one he is referring
to. It happened more than once.
Q Apparently from your answer it happened more
than once, is that correct?
A Yes, sir.
Q Now, at different locations?
A Yes, sir.
Q Where did the first one happen that*vou can fe-
Before I was married to him.
That would be some nifie, ten years ago, is that
Yes, sir.
And where was that, if you remember?
A It was at an apartr:ent place where I used to live;
I van’t remember.
Q At an apartment where you used to live?
A Yes.
Q Can you recall how many steps were on that sair-
way?
A _ I can’t remember exactly, no.
{[71] Q Could you give us an estimate? Would you
say aS many as ten, or was it a long, high stairway or
- short?
A No, it was short.
Q Short. Approximately ten, would you say? .
A Eight cr ten, maybe.
Q Eight to ten. And he rolled down those steps, is
that correct?
A Yes. -
Q That is before you were married,—
A Yes, sir.
A
Q
right?
A
Q
Q —nine or ten years ago? Now, how often has it
occurred since that time?
A Maybe two or three times at the most.
Q Maybe two or three times at the most. When
these things happened, was he drunk or just fall over
and fall down the steps?
A Just when he didn’t get his way,—
Q Pardon?
A Just when he didn’t get his way, he would be a
little nervous, and this would go on.
QA little nervous and roll down the steps?
A Yes.
Q_ I believe you said—
MR. FRANK: “Just a miaute. I am going to object
to that statement. Unless he wants to make a closing
statement, I think it is improper.
THE COURT: All right. Overruled. Proceed.
Q (Mr. Watson) Mrs. Drope, when you came in the
office to talk to me, and your husband introduced you, I
was there, [72] and I think you said my secretary was
there in the office; is that correct?
A Yes, sir.
Q And at that time we discussed this matter that oc-
curred supposedly on the 17th day of January; is that
right?
A Did we discuss it?
Q We discussed it, the three of us; you say you and
your husband and I discussed it?
You asked what happened.
Q And you told me?
A Yes. P
Q So we discussed it?
A O.K.
Q Now, you were referring when you were in my
office—you came there to talk to me, and you were re-
ferring to what occurred on the 17th of January, 1969,
is that right?
A Yes, sir.
Q Whether it was sodomy, rape or anything?
A Both.
LRRD RE IE MLS te 0 pes ESM SEMEN LTS LANL LNAI PERO O IES SEN, PL
soba CARA AIT
ae inline.
- a
61
Q You. were still talking about what happened on the
17th of January, is that right?
A Yes, sir.
Q Nobody threatened you, did they, in my office?
A No, sir.
MR. WATSON: I think that is all.
ore ith LMR RNS ONE
FURTHER REDIRECT EXAMINATION
BY MR. FRANK:
Q Marianne, before your husband took one of these
falls—you said in about seven years of marriage you ~
saw them. three times. Before he took these falls, did ~
he black out before he fell? f
A No, sir. :
Q After he fell, was he blacked out or in a state of
[73] blackout?
A Iam no doctor, but if he can get right up, I don’t
think he was out.
Q Marianne, when he got right up, did he remember °
falling down the steps?
A I never—as far as I know, I don’t remember.
Q Did you talk to him about it? .
MR.» WATSON: I believe, Your Honor, the witness
answered the question. Anything further along that line
is argumentative.
THE COURT: What did she say?
_ MR. WATSON: She said she didn’t know.
“THE COURT: That was on the previous question.
Overruled.
(Mr. Frank) Marianne, did you u talk with him
about the fall down the steps? t
MR. WATSON: May we define when it was that this .
conversation is supposedly to have taken place?
THE COURT: He said any time. .
A Before we were married, the first time it happened,
I asked him. He was all right as soon as he got up. Of
course, I was afraid. So I asked him., I said, “Do you
want me to get some help?” He got right up and said
he was all right. So, because he couldn’t be that much
62
wrong when he got right up and started walking around
and said he was all right.
Q (Mr. Frank) Marianne, does your husband do a lot
of [74] drinking? ~
A Well, I believe he does. I can’t say for sure. Maybe
quite a bit since we have been separated. Like I said, we
were separated quite a bit.
Q That particular night, January 17th, was he one of
the ones that smelled of liquor?
A Yes, sir.
MR. FRANK: I have no further questions.
MR. WATSON: No further questions, Your Honor. ve
THE COURT: All right. You may step aside. Call
your next one.
MR. FRANK: Call Ruth McKnight.
MR. WATSON: Your Honor, please, we are going to
~ object to any testimony from this witness because she was
not endorsed by the State until the 19th of June. We
didn’t receive notice of it until Saturday. We have had
no opportunity to take her deposition or know what her
connection is in any manner with this.
_ MR. FRANK: Is he trying to make a speech or try-
ing—
THE COURT: Pardon me. Just a minute. He has Fa
a right to make his objection, Mr. Frank. 4
- MR. WATSON: I therefore, if your Honor please, ob- :
ject to any testimony on behalf of this witness.
_ THE COURT: All right. Be overruled.
$ * * * *
[93] (Thefeupon, on Tuesday, June 24, the further
hearing of the above-entitled cause was laid over to
tne following day, Wednesday, June 25th, 1969, at
9:30 A.M.)
4
4
4 (Thereafter, on Wednesday morning, June 25th,
3 1969, the jury and counsel for the respective parties
ROI Ete
Li SUA Re PENS
ek da
CeEOOe oeet Te ee
again appeared in open court. The defendant, James
E. Drope, did not appear in persén in open court at
this time or any other time during the progress of
4 the trial of the above-entitled cause. The follow-
194] ing proceedings were then had in said cause, in the
absence of the defendant: )
CORED MOSSAD
Fas
63
THE COURT: Gcod morning, members of the jury. ©
We were delayed through no fault of either the Court ©
or the attorneys in this case. I just want to let you know ~
that. * * *. You may proceed. f
MR. WATSON: Your Honor, at this time I am going
to move for a mistrial in view of the fact that the de-
fendant, I am informed, shot himself this morning.
MR. FRANK: Wait—
MR. WATSON: I am addressing the Court.
THE COUKT: Wait.
MR. WATSON: The defendant, I understand, shot
himself this morning. He is in the City Hospital being
operated on.
THE COURT: Just a minute. The Court already de-
cided that the matter would proceed for trial.
MR. WATSON: Your Honor, it makes it awful diffi-
cult for me to go to trial without the client.
.THE COURT: That is the difficulty, Mr. Watson,
that your client brought about, not you, not the Court.
He was on bond and his responsibility to be here. So the
Court will proceed with the case.
MR. WATSON: My motion then is overruled, Your
Honor?
THE COURT: Yes.
* * * *
[128] (The following proceedings were had out of the
hearing of the jury:)
THE COURT: The State rests?
MR. FRANK: At this time, Your Honor, the State
concludes its case and the State rests its case at this
time. We ask that the exhibits presented, “13”, “14”,
“15” and “16” be admitted into evidence.
THE COURT: All right. They will be admitted into
evidence except those portions of the hospital records to
which the Court sustained an objection.
MR. WATSON: Your Honor, I want to present this
to [129] you.
MAO OO BETS ae |
64
“MOTION FOR VERDICT OF ACQUITTAL”
“The Court instructs the jury at the close of the State’s
case that the State of Missouri has failed to produce
sufficient testimony to sustain the allegations in the In-
dictment that the defendant unlawfully, feloniously and
forcibly did rape, ravish and carnally know the prose-
cuting witness against her will in that the Prosecuting
witness and the Defendant are husband and wife.
“The Defendant not being charged with aiding and
abetting in the rape of Mary Joyce Drope.
“The Court should have declared a mistrial when De-
fendant moved for same, when it became apparent that
the Defendant shot himself and could not further attend
the trial as he is confined as a Patient in the City Hos-
pital of St. Louis No. 1, therefore depriving him of being
confronted by his accusers as he is being tried in ab-
sentia.
“Therefore, Defendant requests the Court for a Ver-
dict of Acquittal.”
Filed June 25, 1969.
THE COURT: All right. Let the record show that
the defendant filed a motion for a verdict of acquittal,
and also again renews in effect his motion,—
MR. WATSON: That’s right, Your Honor.
THE COURT: —and both of which will be overruled.
[130] MR. WATSON: And then there will be nothing
further, Your Honor.
(The following proceedings were had within the
hearing of the jury:)
THE COURT: All right. That is the State’s case,
Mr. Watson. .
MR. WATSON: Your Honor, I have no evidence to
produce at this time under the circumstances. So I must
rest.
[138] “The Court instructs the jury that any verdict
that you render, before it can be received as a verdict,
must be unanimous; that is, it must be agreed to by
every juror, it is not the verdict of the jury unless it
Drie AON as eke SG aa ART iO DEEL LOE SE TPR SLE EPS RIES RHE i a8 —
LD ES EST RS | SNE el: ER Ne eS:
is the verdict of each juror as an individual, as well as
of the jury as a whole.”
VERDICT OF THE JURY
(After the summation of the case to the jury by
counsel for the respective parties, the Court sub-
mitted said cause to the jury for their deliberation
and verdict. The jury then retired to the jury room.
Thereafter, on the same day, the said 25th day of ¢
June, 1969, the jury teturned into open court the i
following verdict:) F
THE COURT: Members of the jury, have you ar-
rived at a verdict?
JURORS (in union): Yes.
THE COURT: And the foreman—who is the fore-
man? s
MR. ZAVADIL: Mr. Zavadil.
THE COURT: You have the verdict and forms of
|
verdict?
MR. ZAVADIL: Yes.
HE COURT: All right. Hand them to the Sheriff.
(Thereunon, the verdict was relayed to the Court
for its examination and inspection)
THE COURT: All right.
THE CLERK: Will the jury please rise and hear
their verdict. (Reading the verdict)
[139] “VERDICT”
- “Circuit Court of the City of St. Louis, No. 19. June 25,
1969
STATE OF MISSOURI ) On Indictment
v. ) for Rape
JAMES EDWARD DROPE ) (Forcible)
“We, the jury in the above-entitled cause, find the
defendant guilty of Rape. :
“/s/ John Zavadil
Foreman.” Z
66
THE COURT: Members of the jury, is that your
unanimous verdict?
THE JURORS (in unison): Yes.
THE COURT: Is there any dissent at all from the
verdict?
JURORS: No.
THE COURT: Do you wish the jury. polled?
MR. WATSON: Yes, if your Honor please.
(Thereupon, the jury was polled, and upon the Clerk
asking each juror, “Is the verdict I have just read
your verdict?”, each and every juror responded in
the affirmative.)
THE COURT: Very well. The verdict will be re-
ceived, and the judgment of the court will be reserved
on the motion for a new trial. The: Court will set the
punishment, and will not do so at this time. However,
the bond is canceled, and the Sheriff is ordered to take
custody of the defendant as a [140] prisoner of the Sher-
iff. And the jury will be discharged, with the thanks of
the Court for your patience. * * *.
TIME TO FILE MOTION FOR
NEW TRIAL ENLARGED.
MINUTE ENTRY—June 25, 1969:
“Defendant’s bond set at $25,000. Defendant granted
thirty days additional time to August 4, 1969, to file
motion for a new trial. Leave granted. Court sets date
as July 14, 1969, for fixing of penalty.”
PENALTY FIXED.
Thereafter, on July 21, 1969, the following proceedings
were had in said cause. Mr. Michael Frank, Assistant
Circuit Attorney, appeared for the State of Missouri. Mr.
James Edward Drope, the defendant, appeared in person
in open court and in the presence of his attorney, Mr.
Lester Watson.
THE COURT: You are James Edward Drope?
a)
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67
MR. DROPE: (Nodding assent).
THE COURT: Cause No. 405-R. And on June 25th
the jury returned a verdict of guilty of rape. And it is
incumbent upon the Court to fix the penalty in view of
the fact that you have been previously convicted of a
felony. And this is not a final sentence. This is merely
the fixing of the penalty in the case, and the Court now
fixes the penalty at life imprisonment.
MR. WATSON: Your Honor, before—very well.
[141] THE COURT: And you have, according to the
file, to refresh your memory,—
MR. WATSON: Until the 4th of August?
THE COURT: —until August 4th to file a motion.
MR. WATSON: That’s right, Your Honor.
MR. DROPE (The Defendant): Life?
MR. WATSON: Life.
MR. DROPE: For something I didn’t do?
THE COURT: Your attorney will talk to you. You
better go and talk to him. |
(Thereupon, the defendant was remanded to the éus-
: tody of the Sheriff. )
“MOTION FOR A NEW TRIAL”
(Caption, signature and formal parts omitted)
“Comes now Defendant herein and moves the Court
to set aside the verdict of the jury finding the Defendant
Guilty for the following reasons, to-wit:
“1. That the Court erred in failing to sustain De-
fendant’s Motion for a verdict of Acquittal at the close
of the State’s case, as the State failed to produce suffi-
cient evidence to sustain the Indictment, in that Defend-
ant was not charged with aiding and abetting others in
the commssion of the crime of rape and he, himself, could
not be charged with raping his own wife.
[142] “2. That the Court erred in permitting the State
to proceed with the prosecution of the Defendant, in ab-
sentia, as there was no evidence produced on behalf of
the State to show that Defendant was absent from his
Te he
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68
trial by reason of his own actions or that he deliberately
absented himself from said trial. ;
“3. That the Court erred in compelling the completion.
of the trial in the absence of the Defendant for the rea-
son that it deprived Defendant from being confronted by
his accusers or witnesses against him and also deprived
Defendant’s counsel of consulting with said Defendant
during the trial. >
“4. The Court erred in compelling the completion of
the trial in the absence of the Defendant in that it de-
prived the Defendant from taking the stand and offering
his defense to the charge of rape and prevented the De-
fendant from producing witnesses to substantiate De-
fendant’s testimony. iy
“5. That the Court erred in failing to declare a mis-
trial when the Court was advised of the Defendant’s in-
ability to be present in the courtroom durimg the trial,
as Defendant was being operated upon in the City Hos-
pital in the City of St. Louis.
“6. The Court erred in giving the Instruction on credi-
bility of witnesses, as no witness’s credibility was chal-
lenged and, in giving said Instruction, the Court indi-
rectly commented upon Defendant’s failure to take the
witness stand. i: .
[143] “7. That the verdie the Jury is against the
law and the evidence, in that the Court should have sus-
tained Defendant’s Motion for a mistrial when it was
apparent to the Court that the Defendant could not physi-
cally be present for the completion of the testimony of-
fered by the State and Defendant was deprived of being
able to be confronted by his accusers or witnesses against
him.
“8. That the Court erred in permitting the Jury to
return a verdict of Guilty in the absence of the Defend-
ant in the Courtroom because of his inability, not brought
upon himself, to be there.
“9. That to proceed with the case in absentia is in
violation of Rule 29.02 of the Rules of the Supreme ~
Court of the State of Missouri which provides ‘No person
shall be tried upon an indictment or information for a
| ae ENG: fe ae Or REASON
69
felony unless he be personally present during the trial’
"#10, That the Court erred in permitting the Jury to
return a verdict and entered same upon the records of
the Court in the absence of the Defendant when there
was no testimony on behalf of the State or Defendant .
that such absence was willful or voluntary-upen-his part.
“11. That the Court erred in permitting the trial to
continue in the absence of the Defendant when there was
no evidence that the Defendant voluntarily absented him-
self from the courtroom and, as a matter of fact, he did
not voluntarily absent [144] himself from the courtroom.
“12. That the verdict of the Jury is against the law
under the evidence that the Defendant was absent from
the courtroom during a portion of the trial and said
absence was not brought on by his own acts or willing-
ness.
“13. That the Court’s sentence of life imprisonment in
the Department of Corrections in the State of. Missouri
is inhuman, cruel, excessive and unusual punishment
under the circumstances and in violation of Article VIII
of the Bill of Rights of the Constitution of the United
States and in violation of the Constitution of the State
of Missouri.
“14. For the above reasons, the Defendant moves the
Court to set aside the verdict of the Jury and to grant
the Defendant a new trial.”
Filed July 30, 1969.
HEARING ON MOTION FOR NEW TRIAL.
(Thereafter, on September 19, 1969, defendant’s mo-
tion for a new trial came on for a hearing during
which the following proceedings were had: The de-
fendant, James Edward Drope appeared in person
in open court and with this attorney, Mr. Lester
Watson. At the beginning of the hearing there was
no representative of the State present in open court.)
THE COURT: Mr. Watson, Mr. Frank wants to
know if you are going to have any evidence in the case?
MR. WATSON: Yes, I am, Your Honor.
risa lo ahs.
ELH NREL TTF FETT LS OTE I eI
COE eg Shas VS,
70
[145] THE COURT: He is taking a deposition, and
~°“he didn’t know that there was going to be any testimony,
and he is in the middle of the deposition, and a reporter
there. He is asking the Court that yours be continued.
He wants to know what the evidence will be so that he
will be able to get witnesses in. Now, what it means—
MR. WATSON: I don’t believe at this time the de-
fendant should be compelled to disclose his evidence.
THE COURT: All right. We will hear part of it and
continue it and give them an opportunity to bring in any
evidence they have.
MR. WATSON: If you want to do that this morning.
THE COURT: All right. (Addressing the reporter)
Mr. Utrup, this.is the case of State of Missouri v. James
Drope; Cause No. 405-R. Mr. Watson is here. Mr. Mi-
chael Frank, representing the State, is here, and the de-
fendant is here.
On the record, Mr. Watson announces that he wants
to produce evidence and make a record with reference
to certain allegations on a motion for a new trial. The
State, through Mr. Frank, has requested the Court for
a continuance so that he would be able to produce evi-
dence contrary to what he understands to be the issue
with reference to any evidence. And that goes to para-
graphs 2, 3, 4, 5, 7, 8, 9, 10, and 12, with reference to
the defendant’s absence from court. And Mr. Frank
[146] has requested the Court for a continuance so he
can obtain witnesses on behalf of the State that the ab-
sence is not any fault on the part of the State but due
to the defendant’s own fault. And the Court requested
Mr. Watson what his evidence would be, and he said he
wouldn’t like to state in advance. So the Court suggested
that we hear Mr. Watson, and if the State asks for a
continuance, they will be given an opportunity to produce
additional evidence.
MR. WATSON: Will you take the stand. I might’
state to the Court at this time that the testimony being
offered by the defendant is solely and only for the pur-
pose of clarifying the record as to his inability to be
present in the courtroom at the time that the case was
being tried in his absence. .
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71
JAMES EDWARD DROPE, sworn, testified:
DIRECT EXAMINATION
BY MR. WATSON:
Now, will you state your name, please?
James Edward Drope.
Where do you live, Mr. Drope? i
Well, I was staying with my parents at the time.
What is their address?
Well, it’ was 630 East Red Bud.
That is in the City of St. Louis?
Yes, sir.
Now, then, at the present time you are confined in
the City Jail, is that right?
A Yes, sir.
And you have been since you returned from the
hospital [147] some time in—was that July or early
August? — :
A I believe it was July.
Q July?
A July. :
Q Now, Mr. Drope, you were present in this court-
room on the 23rd day of June, at the commencement of
your trial; is that correct?
A Yes, sir.
MR. WATSON: ‘I assume, Your Honor, that that
date is right. I am not looking at the information, but
I believe you have the file ther.
THE COURT: Well, the file—
MR. WATSON: The case—I mean, did the case start
on the 23rd?
THE COURT: Pardon me. ,
MR. WATSON: Did the case start on the 23rd?
THE COURT: Will you let me make a statement.
The file shows that the case was assigned to Division No.
19, and the defendant present in court, and his attorney,
Lester Watson. And it goes on and later on it says,
“Examination of jurors on voir dire begun on June 28rd.
MR. WATSON: Thank you. |
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Q So you were here and present in this courtroom
when I examixed the jury on the 23rd day of June, 1969;
is that right?
A Yes, ar.
Q Now, then, and you were hee also on the next day
during the trial, were you not?
A Yes. .
[148] Q Now, then, Mr. Drope, you were not present
here on the 25th, is that correct?
A That’s correct, sir.
Q Now, on the evening of the 24th you went home
from the courtroom?
A Yes, sir.
Q And then the next morning, will you tell the Court,
please, what happened on the next morning? What did
you do the next morning, if anything?
‘A The next morning I was at my—
MR. FRANK: | I can’t hear you.
MR. WATSON: Speak loud so Mr. Frank can Lier.
THE WITNESS: Yes. I have a cold.
A I was at my varents’ house. I went.over to my
brother’s house. I think it is 6238 Bulwer, started to
get a change of clcethes,—
All right, ?
—saw my children before I came to court.
Were your children at your brother’s house?
Yes, sir.
All right. Proceed.
My mother told me to get a change of clothes. All
my clothes were down in the basement. So I went down
in the basement to get my clothes. I got my clothes down
and I turned the light out, and that is when I started
not remembering.
Q What is the next thing you remember after that?
A Being in Homer Phillips Hospital.
[149] Q And you remember being at Homer G. 'Phil-
lips Hospital, is that right? :
A I asked the nurse ‘where I was, and she told me I
was at Homer G. Phillips Hospital. He
>rO>rOPro
DL ALLO LO
73
Q And did you remain in the Homer G. Phillips Hos-
pital after that or were you sent to the City Hospital on
Lafayette, if you know where you were?
A The only hospital I can remember being at was
the Homer G. Phillips Hospital.
Q Homer G. Phillips Hospital?
A Yes.
Were you operated on there on the morning of the
25th of June, 1969?
A Well, all I know is what I was told. I was told
I was operated on at the City Hospital.
Q At the City Hospital?
A Yes. ,
Q And you don’t know whether they were referring
to the Homer G. Phillips or the one on Lafayette?
A That is all I know.
Q That is all you know about it. Now, Mr. Drope,
did you on that day take a gun and deliberately shoot
yourself that you know of?
A I don’t remember a thing. It happened after I
turned the light out. ;
Q Did you do anything to prevent you from coming
into this courtroom to attend your trial?
A No, sir.
MR. WATSON: I believe that is all, Your Honor.
MR. FRANK: Your Honor, the State asks the Court
to let the State reserve its cross-examination and con-
tinue it for the State to bring in witnesses.
[150] MR. WATSON: Your Honor, I am going to ob-
ject at this time. I believe Counsel could complete the
cross-examination. now. And I would naturally object to
any testimony that the State would bring in at this time
that they should have brought in on the 25th of June so
there would be a record and the Court would be informed
as to what occurred or what their contention was. At
this time in support of our motion for a new trial there
is no evidence in the record whatever as to what hap-
pened to the defendant. And I believe it was the burden
of the State, and that is my argument in my motion
that it was their duty at that time to bring in and put
into the record some evidence, so that if this matter goes
ee mere tee *
semithin
74
to an appellate court, the court could be informed as to
why the case went on in absentia, the defendant being
absent.
: THE COURT: Very well.
4 MR. WATSON: I have no objection to him cross-
| examining the defendant now, and I would recommend
; that it be done now. I think it is only fair to the de-
fendant that it is done now. =
THE COURT: Of course, also in fairness to the
State, not knowing there was going to be any testimony
offered.
MR. WATSON: Well, they had a copy of the motion
for a new trial.
THE COURT: That doesn’t necessarily follow there
is going to be any testimony. It is your position it was
their [151] duty to present evidence?
MR. WATSON: Oh, absolutely.
THE COURT: If that is true, if your position is
true, if a defendant disappears it is up to the State to
investigate why he is not here, and it is up to the Court
and the jury to wait until the State completes its inves-
tigation, and it is a locked-up jury, that means that
everybody is sitting down. I don’t know; it seems to me
it is up to the defendant to account for his absence. He
is on bond. The State couldn’t follow him around. They
would be severely criticized if they did. It would seem
to me that the burden of proof is upon the defendant to
show his absence, not the State.
MR. WATSON: Weli,—
THE COURT: It seems.to me, Mr. Watson, that
would unnecessarily delay cases. It would have the Court
and jury—
MR. WATSON: I don’t think so. od
THE COURT: —-sit around while the State com-
pleted its investigation. All kind of complications. ; Let
me say this; let me say this: It seems to me, if ‘your
position is correct, and I took it from the statements
made, then the person—it could have been presented on
a motion for a new trial, that there was no accounting
7
3g te Rat SPS DR A AE
75
for his absence on the part of the State, therefore it
could be presumed that he was not here because through
no fault of his own, he was absent through [152] no
fault of his own and therefore the motion should be sus-
tained. At least, Mr. Frank, did you know that there te
was going to be any evidence offered? ee
MR. FRANK: Today? No, I had no knowledge of
this at all.
THE COURT: Well, I am going to grant it. The
State wouldn’t even be in a position to cross-examine
until they, checked.
MR. WATSON: They could cross-examine on what
was brought out on direct, Your Honor. :
THE COURT: Didn’t you have your investigator
check down at City Hospital?
MR. FRANK: Yes, sir, my investigator personally
went to City Hospital.
THE COURT: And got a police report?
MR. FRANK: That is correct. :
MR WATSON: And saw the man in the hospital on
the operating table, but that was never produced here
in evidence. That should be in the record. ' ;
THE COURT: Well, the Court got a telephone call
from his brother—his father-in-law.
MR. WATSON: You and I were here together. That
is true, but nevertheless that is all hearsay.
THE COURT: Well, it is. |
MR. WATSON: What the Supreme Court is going
to be [153] interested in. /
THE COURT: I think the State is entitled under
this to a continuance, and also entitled to continue their
cross-examination, but you will be limited to what he
stated on direct.
MR. FRANK: On direct, Your Honor.
THE COURT: All right.
MR. WATSON: All right. Then I presume we won’t
go ahead with the motion for a new trial this morning.
THE COURT: I don’t see where anything can be
gained.
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MR. WATSON:
my contention.
THE COURT: Do you have any other evidence?
MR. WATSON: No, Your Honor, that is all.
THE COURT: When do you want to continue it to?
MR. WATSON: I would say two weeks from today
if that is convenient to the Court. I am going to be away
from the 9th of October to the 29th. So it could be two
weeks from today, Your Honor, or if you want to make
it a week from today, whatever is convenient.
THE COURT: Pardon me. Let’s declare a short re-
cess. Let me look at my docket.
I have a number of cases to support
¢
(Court in temporary recess)
* * * *
THE COURT: The matter of the motion for a new
trial will be continued to October 3rd.
[154] (Thereupon, the further hearing on defendant’s
motion for a new trial was laid over to October
3rd, 1969. Thereafter, on October 3rd, 1969, the
parties again appeared in open court, the defendant
appearing in person. The further hearing then was
resumed, as follows:)
THE COURT: I believe that you completed the direct
examination.
MR. WATSON: Yes, Your Honor.
THE COURT: All right. (Addressing the defendant)
Will you take the stand.
MR. FRANK: My the record show at our request
that all witnesses be excluded from the courtroom?
THE COURT: Yes. All right.
CROSS-EXAMINATION
BY MR. FRANK:
For the record, please state your name?
James Edward Drope.
Speak louder, Mr. Drope, so I can hear you.
James Edward Drope.
POPO
Q I believe you testified on direct examination that
you went to visit your brother on June 25th, 1969, the
morning?
A My mother and I and my stepfather went over to
see the kids before coming to court, and they changed
clothes before coming to court.
Q Do you remember going to the garage that morn-
ing? :
A No, sir.
[155] Q You don’t remember going to the garage?
A No, sir.
Q All right. You testified the last time you were on
the stand that the last thing you remembered entering
garage and going toward the light. You are telling us
now that you don’t remember going to the garage?
MR. WATSON: Your Honor please, I think he is
mistaken. He testified that he went to the basement as
I recall it.
THE COURT: Well, he can state that he didn’t say
that. I can’t recall.
A I didn’t say anything about going to no garage.
Q (Mr. Frank) Do you remember getting yourself
injured on that day?
A I remember going to the basement like I said
before.
Q I said, do you remember being injured on that
day, your stomach was injured in some way?
A I remember feeling something hot hitting my
stomach, that is all I remember.
What is the next thing you remember?
When I come to in the hospital.
Was that after they had operated on you?
Yes, sir.
How late in the day was that?
I really couldn’t say for certain.
Isn’t it a fact you told your mother—her name
is Frankie Dewey—you were going to shoot yourself if
you had to [156] come to court that day and testify?
MR. WATSON: Your Honor,—
A No, sir, I didn’t.
MR. WATSON: Wait a minute. It is beyond direct
éxamination, and as I recall, the Court informed the
>
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78
State at the last hearing that he must maintain his
questions within the scope of direct examination.
THE COURT: Well, pardon me. This goes to what
he testified to on direct. It is contradictory.
MR. WATSON: He didn’t testify that he talked to
his mother—
THE COURT: Overruled.
MR. WATSON: —or anyone else, Your Honor.
MR. FRANK: Do you remember the question?
THE WITNESS: Would you mind repeating it?
MR. FRANK: Would you read the question, please.
THE REPORTER: (Reading) “Question: Isn’t it
a fact that you told your mother—her name is Frankie
Dewey—you were going to shoot yourself if you had to
come to court that day and testify?”
A No, sir, I don’t recall saying anything of any
sort to my mother.
Q (Mr. Frank) Isn’t it a fact you told your brother
Homer if you had to come to court and testify that day,
you were going to shoot yourself?
[157] MR. WATSON: Same objection, yeur Honor.
THE COURT: Overruled.
You don’t know Patroiman Dampier?
I don’t recall that name.
Isn’t it a fact you talked to Patrolman Dampier
at the hospital?
A No, sir, not that I remember.
Q Do you tell the Court you did not talk to Patrolman
Dampier?
A Not to my knowing, I didn’t talk to anybody.
Q Isn’t it a fact that you told Patrolman Dampier
while you were on the operating table in the emergency
A I said no such thing.
Q (Mr. Frank) Do you own a rifle?
A No, sir.
Q You don’t own a rifle?
A No, sir.
Q You own no weapon?
A No, sir.
Q Do you know 2 patrolman Jerome Dampier?
A No, sir.
Q
A
Q
room—on the table in the receiving room that you
would rather be dead than testify in the case, and that
is the reason—
MR. WATSON: Now, just a minute.
MR. FRANK: Let me finish the question. This is
the question.
MR. WATSON: Pardon me.
Q(Mr. Frank) —and that the reason that you shot
yourself in the stomach so you would not have to testify?
[158] MR. WATSON: Now, if Your Honor please, I
am going to object to that again because it is beyond the
scope of direct examination.
THE COURT: It will be overruled.
MR. FRANK: Will you answer the question.
A I don’t even remember being in the hospital until
I woke up in Homer G. Phillips.
Q It is my understanding you deny talking with the
Officer?
A Yes, sir.
Q And you deny telling him that you shot yourself
with that rifle?
A I don’t remember talking to anyone, any officer.
I don’t remember talking to anyone.
MR. WATSON: Your Honor please, may I make
an objection to this line of questioning at this time for
the reason if the State’ intends to offer this testimony,
- it should have been offered to the Court before the case
went on to be heard with the defendant in absentia.
I am objecting in addition for the reason.
THE COURT: Be overruled.
Q_.(Mr. Frank) Didn’t you keep your rifle in the
basement at your brother’s house with the rest of your
clothes? Isn’t that where you were keeping your clothes?
A May I ask what rifle?
Q I am asking you a question. Isn’t that where you
were keeping your clothes, in his basement?
A Yes, sir, that [159] is where I had all my clothes
and my children’s clothes.
Q And all your possessions, is that right?
A That is all I had down there.
¥
Q Isn’t it a fact you went to that basement first to
get that rifle and then you walked in the garage where
you shot yourself with it? a
A Like I said before, I went to the basement to
change clothes.
Q What is the last thing you remember - then?
A When I got my clothes out and turned the light
out and turned around, that is the last I remember.
Q You say you turned the light out?
A Yes, sir.
Q The Court has the record. You testified the last
time you don’t even remember turning the light out?
MR. WATSON: I submit that is argumentative.
MR. FRANK: It is in the record.
THE COURT: Well, he can state whether he remem-
bers so testifying.
A Like I stated before,— :
Q (Mr. Frank) Do you remember testifying—
MR. WATSON: Just a minute. If your Honor please,
I submit the witness has a right t6“answer.
THE COURT: No, he has the right to have the ques-
tion answered. Do you remember testifying the last thing
you remember was turning the light out?
A The last I remember, turning that light out and
turning [160] around, and that was the last I remember
and a hot burning sensation in my stomach.
Q (Mr. Frank) You don’t remember telling your
mother or your brother or the policeman that you shot
yourself so you wouldn’t have to come to court?
A No, sir.
Q Do you remember at the hospital talking with
the doctors about how you were shot?
A I remember talking to some of the doctors asking
what had happened.
Q Do you remember telling them that you shot your-
self in the stomach with a rifle so you would not have
to come to court and testify?
A No, sir, I don’t remember saying no such thing
to them.
Q You never told the doctors in any event?
A I only repeated what I had heard.
a Rt ee ET I RAE ELE ER ESL AIO ET et
81
Q I am asking you, did you tell the doctors you had
shot yourself?
A No, sir. :
Q Because you didn’t want to go to court? Is your
mother’s name Frankie Dewey?
A Yes, sir.
Q Your brother’s name is Homer H.
A Yes, sir.
Q Do you remember seeing them prior to the shoot-
ing that morning?
A I remember talking to them upstairs, yes, sir.
Q Do you_remember talking to them after the shoot-
ing while you were still there? ~~
A No, sir.
Q You don’t remember talking to anybody after the
shooting?
[161] A No, sir.
Q What time did they operate on you that day?
A I don’t know.
Was it nighttime?
A-I.don’t know. |
You don’t even remember?
A I don’t even remember that I went to the hos-
pital.
MR. FRANK: I have no further questions.
MR. WATSON: I have no questions, Your Honor. \
THE COURT: All right. You may step down.
MR. FRANK: Your Honor, at this time the State
wishes to call—
THE COURT: Oh, pardon me. Have you finished?
MR. WATSON: Yes, Your Honor, I have finished.
THE COURT: All right.
MR. FRANK: The State is ready. |
THE COURT: Ail right. You may proceed.
MR. FRANK: At this time the State wishes to call
Frankie Dewey.
oo eh Peed mace: |
«
ARAN EGR
bir bs
82
STATE’S CASE ON MOTION
FRANKIE: DEWEY, sworn, testified:
DIRECT EXAMINATION
BY MR. FRANK:
Please state your name.
Frankie Dewey.
Where do you live?
630 East Red Bud.
Is James Drope your son?
Yes, sir.
Did you see your son on June 25th, 1969?
I sup- [162] pose I did.
The morning oy was shot?
Yes, sir.
Did you see your son after he had ind ‘shot?
I saw him laying on the ground.
Did your son talk to you at that time?
No, sir. He couldn’t.
Are you telling the Court that your son said noth- -
ing to you at that time?
MR. WATSON: Just a minute. Your Honor please
I am going to object to that as argumentative. This
is Mr. Frank’s direct examination of his own witness.
I object to him arguing with her.
MR. FRANK: Your Honor, at this time I ask that
this witness be declared a hostile witness on the basis
of the official police report of the St. Louis Police De-
partment would show a statement to the contrary that
this witness made.
MF.. WATSON: I don’t know about any police report.
THE COURT: Well,—
MR. WATSON: I move whatever reference he made
to the police report be stricken.
MR. FRANK: That is the reason for asking for the
hostile witness proceeding.
THE COURT: Be overruled.
Q (Mr. Frank) Isn’t-it a fact, mam, that your
son told you after he had been shot, after he shot him-
OPO PO PO PO PO PO PO
~ “ - a. bi PLLA SIE AAS alle A
self that~he had [163] shot himself so that he would
not have to come to court that morning?
A No, sir, that is not true.
Q Isn’t it a fact, mam, that you told Police Officer
Dampier that your son told you that he had shot him-
self so he would not have to come to court that morning?
A I did not.
MR. WATSON: I have to object to that,—
A Iam taking an oath today; I did not.
MR. WATSON: Just a minute, Mrs. Dewey. I would
have to object te that, Your Honor please, for the rea-
son it would be hearsay.
THE COURT: Be overruled. It is the statement of
this witness?
MR. FRANK: \That’s right.
THE WITNESS: _I did not say it.
MR. WATSON: Third party.
THE COURT: It>is an effort to show a contradic-—
tory statement. All right. Proceed.
Q (Mr. Frank) Isn’t it a fact that prior_to this
occasion your son had also told you on numerous occa-
sions that he would rather kill himself than testify
before the jury?
MR. WATSON: I object— '
A No, sir. I don’t know who told you all that but
it is not true. ne
Q. (Mr. Frank) Isn’t it 2 fact that your son James
Drope [164] kept his clothes and all his belongings in the
basement of your other son’s house?
A Part of his clothes was over there because we was
washing over there.
Q Isn’t it a fact that is where he kept his rifle also?
A That rifle, I hadn’t seea that thing in years and
I thought it was in the country. I did not see that rifle.
That was Jimmie’s rifle, wasn’t. it?
No, it was not.
It wasn’t? \
And I didn’t tell the police officer that either.
And you didn’t tell the police officer either?
Because I bought those rifles a long time ago.
Whose rifles were they?
OPO PO PO
4
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oes
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84
A They belonged to my youngest son.
Q Who is he?
A Donald.
Q Donald? .
A Either belonged to Donald or Homer; two rifles
just alike.
Q That was Homer’s house where that rifle was?
A That’s right. That is where it was when it was
in the garage.
MR. FRANK: I have no further questions.
MR. WATSON: I have no questions, Your Honor.
THE COURT: (Q) Did you say the rifle was in the
‘garage?
A That is where we found it, sir, and he was laying
out- [165] side the garage.
THE COURT: All right.
MR. WATSON: Step down, Mrs. Dewey.
(Witness excused)
FRED H. SCHIEFELBEIN, sworn, testified:
DIRECT EXAMINATION
BY MR. FRANK:
Please state your name, sir?
Fred H. Schiefelbein. |
What is your business or occupation?
Clerk in the Record Section, Metropolitan Police
Department, City of St. Louis.
Q And, sir, did you bring anything with you?
A I brought records in answer to a subpoena duces
tecum.
Q And are these the records of a shooting, suicide ~ ~
attempt, on June 25th,— es oe
MR. WATSON: Just a minute. I am going to ob-
ject. Just a minute. I am going to object, if Your
Honor please, for the reason that is leading and sug-
gestive and it is attempting to place into evidence
something that is not— si
PO PO
“
85
THE COURT: He hasn’t offered it yet. It will over-
ruled, but you just ask him what they are.
MR. WATSON: That wasn’t his question, Your
Honor:
THE COURT: What was his question?
MR. WATSON: The question was, he is talking about
an attempted suicide and things of that nature, Your
Honor, to which I object.
[166] THE COURT: Well, this is just a description
being used in that sense. All right.
Q (Mr. Frank) Is there a heading on that police
report that shows the type of police report it is, sir?
A Yes, sir.
MR. WATSON: Your Honor please, I am going again
to object to it because that is merely a self-serving docu-
ment. :
THE COURT: I am not going to make him a record.
I am going to let him identify it. I don’t know what it
is unless it is identified. We are not trying it before a
jury.
MR. WATSON: I know, but he is talking about what
heading was placed on the report.
THE COURT: Just for the mere report for identifica-
tion. It is not going to have influence on the Court.
Q (Mr. Frank) For identification purposes, what
is the heading on the report?
“Injury and Sick Report, Attempted Suicide”.
What is the date of the report?
6/25/69. —-
e time?
8:16 A.M. :
Is that the time it was reported to the police?
Sixth District. ;
Who reported that attempted suicide to the police?
A person by the name of Dewey. I don’t know if
that is a surname or what. That is all it has on it.
MR. FRANK: May the record show that the Dewey
POP PO POY
» being [167] the mother of the defendant.
MR. WATSON: Just a minute. There are also other
Deweys besides Mrs. Dewey.
ee ec |
f
86
THE COURT: I know that. All he is showing that
Dewey is the name of the mother, and we already know
that because she has testified.
MR. WATSON: We know that.
Q (Mr. Frank) Who are the officers that prepared
that report?
‘' A Dampier.
Q Is he Patrolman Sempiert:
A Yes, sir; Jerome.
Q Of the Fifth District?
A That’s right.
And, sir, is this record kept in a normal course of
. business?
A It is.
Q Is it a part of your acca to keep these
* records?
A. That’s right.
MR. FRANK: Your Honor, at this time the State
wishes have have marked as State’s Exhibit 1 the actual
police record which shows the attempted suicide in this
case,
MR. WATSON: Your Honor please, I certainly ob-
ject to Counsel—
THE COURT: No, he can mark it, but—
MR. FRANK: All I am doing is marking it at this
time.
(The reporter thereupon marked ms police report for
identification as State’s Exhibit 1.4
THE COURT: He can mark it. He can make an
offer of [168] proof.
MR. WATSON: That’s right. ,
THE COURT: The Court will rule at the proper
time.
MR. FRANK: I have no further questions at this ©
time of this witness, Your Honor.
- :
& 87
CROSS-EXAMINATION
BY MR. WATSON:
Q Mr.—I am sorry.
A Schiefelbein.
Q Schiefelbein, is that right? The records that you
have, that have been just marked for identification, are
the records of the Police Department made by some officer,
is that correct?
A By—in many cases there are several officers in
the report. In most cases it is one officer.
Q This particular one, is it made by one officer?
A Yes, sir.
Q And what was the officer’s name?
A Dampier. '
Q Now, of course, this information that is in there
is a document held by your—made for your Police De-
partment for their records, is that correct?
A If I may explain, the officer, after he gets what-
ever information he needs, he makes a report to his
commanding officér. And there is a sergeant in charge
if the lieutenant 6r captain is not in there, that person’s
name appears as having witnessed the report of the
officer. It is really.a report of an incident to the Chief
of Police which must be made all the time.
But this particular document is not made by Of-
ficer [169] Dampier; it is made out by a detective ser-
geant or somebody there at the police station?
A No, sir, he makes it out and the detective sergeant
verifies that this officer made it out.
Q In other words, he writes it—Dampier writes it
and the other officer verifies it?
A That is true. If you care to Jook, this is what
I mean (pointing on report). This is the officer in this
block; and this is the supervising officer on this end
(pointing). And that is a part of the police procedure.
It must be—every incident must be accounted to the
Chief of Police, whether he looks at it or not.
(Off-the-record discussion) :
4
5) {+7 ed EY
Sy ~ ‘ 88
THE WITNESE: This is Dampier all the way, sub-
mitted by Officer Dampier.
Q” (Mr. Watson) J see. The lower part of page one
of this report was made out by a Sergeant Leo Sneed-
meyer, is that correct? -
A No, sir, he is the one that supervised the report.
It was made out by Patrolman Jerome Dampier whose
serial number in the Police Department is 6604.
Q Well, let me read it to you. It reads: “At about
8:16 this date Patrolman Jerome Dampier, 6604,° in
charge of Car No. 5, was directed to 5248 Bulwer.”
Now, who was it that wrote that in there? Is that
Sneedmeyer’s notes or records?
A No, sir, that is the police officer’s.
Q In other words, that is the police officer talking
[170] about himself, is that correct?
A Yes, sir.
-MR. WATSON: All right. Thank you.
(Witness excused) —
MR. FRANK: Your Honor, I would like to call the ;
medical records librarian from City Hospital No. 1.
NORMA SNOWDEN, sworn, testified:
: DIRECT EXAMINATION
BY MR. FRANK:
Mam, please state your name.
Norma Snowden.
Miss Snowden, what is your business or occupation?
Clerk at the St. Louis City Hospital, 1515 Lafay-
ette, in the Medical Records.
Q And as a clerk in Medical Recor ds, what are your
responsibilities?
A Ah, to answer to summonses and to keep the medi-
cal records.
Q And did you in fact bring something with you to-
day from that hospital?
A Yes, I did.
lua p>
89 -
~ .Q What did you bring with you, mam?
A X rays and a. medical chart on one James Drope.
MR. FRANK: At this time mark this State’s Exhibit
2. ;
(The reporter then marked a City Hospital record
anent James Drope, for ification as State’s
Exhibit 2.)
Q I show you that which is marked State’s Exhibit
2. Can you identify that for the court?
A Yes, I can. ;
Q What is that, mam?
A A record on James Drape.
Q Is this part of the official records of City Hospital
1?
~ [171] A Yes, it is.
Q All right. When are these notes recorded there in
this record? —
MR. WATSON: Do you mind if I look at it, please?
MR. FRANK: May I have it for just a moment
(handing exhibit to Mr. Watson). ;
MR. WATSON: This is a very lengthy document. Is
. there any particular portion you want to refer to?
THE COURT: Pardon me. You ean handle it. Just
get it identified and then offer it subject to your objec-
tion as to materiality, relevancy in any manner.
MR. WATSON: That is correct; I’ll agree to that.
Q (Mr. Frank) All right. There are handwritten
notes in this file. Are these handwritten notes made at
the approximate time of treatment or viewing of the
victim in this case, the defendant?
A Yes, they are.
Q Let me call your attention now— ~
THE COURT: I don’t think Mr. Watson has any
objection to them being hospital records?
MR. WATSON: I don’t. *
THE COURT: But he may ooject to any part you
want to read as to materiality.
MR. WATSON: That is.right, Your Honor.
Q iMr. Frank) All right, Your Honor. I am now
’
outed
—~ 90.
referring to a page which is unnumbered as far as I
can see.
(172]} A May I see it? “25”,
Q Is that “25”?
A, (Nodding assent).
MR. FRANK: Yovr Honor, I am now referring to
, Admission Notes, 6-25-69, written in longhand by the
doctor on duty at that time.
MR. WATSON: And, Your Honor, we will object to
that at this time for the reason it is wholly immaterial
, and irrelevant in regard “to this case and this motion,
and is a record made by some other person, and it would
be hearsay, Your Honor.
THE COURT: Well, pardon me. I can’t pass on it.
Is this a statement of the doctor or is this a statement
of the defendant?
MR. FRANK: It is a statement that the defendant
makes to the doctor.
THE COURT: All right. Be overruled.
Q (Mr. Frank) I eall your attention to this sec-
tion (pointing).
A (Reading) “This morning he shot himself with
a .22 caliber at the alley and was brought in the emer-
gency room. The cause of this was not definite, but he
stated some problem—” °
Q “Some problem with the law’?
A “with the law.”
MR. FRANK: All right. Your Honor, that. state-
‘ment of the defendant that he shot himself and had had
some problems to do with the law, I ask to be admitted
. into evidence as a statement by the defendant to the
doctor in charge at that time.
[173] MR. WATSON: If your Honor please, I am
going to object to that for the reason it would be “im-
material to any issue in this case. It is irrelevant, and,
furthermore, if it were made, it was made while the
man—from the information received or read by this
young lady it was made quite a while after he had been
shot. And there is no information here as to what con-
dition he was in, whether he was, shall we Say, coherent,
and whether he knew what he was saying, if anything.
91,
And it is merely a statement by a third party who is
not present, Your Honor. I: object to it for that reason
and move that that answer be stricken.
THE COURT: Well, I think if the record shows that
he is semi-conscious or rambling and not responsible
for what he says, the objection should be sustained. Is
there anything in that hospital record that shows that
he was semi-conscious or rambling?
MR. FRANK: Your Honor, I can establish this man’s
state of mind with my next witness.
THE COURT: Not on that. Is there anything in
there that shows that he was unconscious, having hal-
lucinations or anything like that?
MR. FRANK: Your Honor, I call your attenticn to
the following. page which uses the word “conscious”,
showing the man is conscious, and there is a review
of the general physical condition.
[174] THE COURT: Is that the entry note?
MR. FRANK: Yes, these are all the entry notes here.
THE COURT: Unless there is some showing that the
doctor noted that he was rambling, incoherent.
MR. FRANK: The doctor shows that he is nervous,
Yow Honor, but shows that he is conscious.
Mr. WATSON: Where do. you see that?
MR. FRANK: “The man is nervous but conscious. X
rays taken of the chest—.”
THE COURT: All right. It will be overruled.
MR. WATSON: Well, I presume that word that the
doctor wrote is “conscious” but it certainly doesn’t look
like it. Let’s compare that with the one down here. Does
it look like that? vs
MR. FRANK: It is the same. .
MR. WATSON: [’ll bring it out on cross-examination.
MR. FRANK: Now, I ask that that be admitted into
evidence at this time as State’s Exhibit 2.
THE COURT: Very well.
MR. FRANK: I have no further questions of this
witness at this time.
AN, abated PP BR a an BI —_—
92
CROSS-EXAMINATION
BY MR. WATSON:
Q What was your name, young lady? I am sorry,
I don’t recall it.
A Snowden.
Q Miss Snowden, direc\ing your attention to the cen-
ter of [175] this page, not numbered, but it is the same
page as Mr. Frank was just talking to you about. I
direct your attention to the center of that. Will you read
for us please from the word “abdomen” on down?
MR. FRANK: What is the area?
MR. WATSON: [I told her. Right there (pointing).
She’ knows.
-T'HE WITNESS: Yes.
R. FRANK: Well, this area—just a minute. I
want to make an objection. This area hasn’t anything to
do with the consciousness. It has to do with the abdomen
and the actual location of the two bullets.
THE COURT: All right. You may read it.
THE WITNESS: i cannot make it out.
THE COURT: What is that under, “Abdomen’’?
MR. WATSON: Yes, an abbreviation onthe left side
is abdomen—Abd.
THE COURT: I can’t read it.
MR. WATSON: Well, the record offered by the State,
honestly, I can’t read it either. I ‘want te know what—
THE COURT: How do you know it ought to be in-
troduced then?
MR. WATSON: He has already introduced it. I want
to know what he is introducing. I can’t read it.
MR. FRANK: For the record, the only thing that the
[176] State was introducing—
MR. FRANK: Pardon me. We know what you have
introduced. Proceed.
Q (Mr. Watson) Let me call your attention to this
word on .the righthand side where it says “nervous”.
What does that say alongside of it? Can you interpret it?
A I feel it is an abbreviation of “consciousness”.
Q An abbreviation for “consciousness” ?
93
. Yes, sir. ;
It isn’t written out like here (pointing) ?
And also feel—
This is “consciousness” too?
Yes, and he stopped right there.
And he said according to this that he was hervous
but was conscious. Is that your interpretation of it?
A Yes, sir.
MR. WATSON: I believe that is all, Your Honor.
THE COURT: All right. You may step down.
MR. WATSON: Oh, may I ask this witness one more
question?
Q Miss Snowden, you were not subpoenaed to be
here on the 25th day of June, were you, 1968—’69, rather?
A No.
Q This is the only time you have been subpoenaed?
A I don’t remember. If I wasn’t involved, someone
else might hav? been.
[177] Q You have never been here before on this
case?
A. No, I haven’t.
MR. WATSON: All right. That is all.
(Witness excused)
we
OPO POY
PATROLMAN JEROME DAMPIER, sworn, testified :
DIRECT EXAMINATION
BY MR. FRANK:
Please state your name, sir?
Patrolman Dampier.
What is your full name?
Jerome.
Jerome. What is your business or occupation, for
‘the record?
A Police Officer, St. Louis—City of St. Louis.
Q And what is your assignment or responsibility in
the Vepartment?
A rolman, District Five.
Q. And how long have you been on the Force, sir?
OPOPo -
SA FRANC BAAS acini theta
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— going to object— ©
94
A Two years. .
Q On June 25th, 1969, were you working that day?
A Yes, sir. ,
Q On that Wednesday, sir, did you get any call around
8:00 in the morning, or 8:15 in the morning?
A Yes, sir.
Q What call, if any, did you get, sir?
A I got a call for attempted suicide.
MR. WATSON: Now, if Your Honor please, I am
going to object to that. It would be hearsay.
MR. FRANK: For the record, this is an interdepart-
mental communication.
THE COURT: I don’t think it- makes so much dif-
ference. [178] I’ll not take it for what it was but just
the reason for his going there.
MR. WATSON: All right.
Q (Mr. Frank) Will you
broadcast was, for the record?
A Attempted suicide.
Q All right. And did you get an address?
A Gave me an address on Bulwer, 5230, I believe.
Q All right. Did you go to this address at 5230
Bulwer?
A Yes, sir.
Q What is that address, Officer?
A It is a residence.
Q When you got to the residence, where did you
park your vehicle?
A In front of the residence.
Q All right. And did ‘you meet someone when you
got there?
A As I got out of my vehicle I met a white female
who identified herself as Frankie Dewey.
~Q_ Did she tell you who she was?
A Yes, she said she was his mother.
Q What did she tell you, Officer?
MR. WATSON: I am going-to object, Your Honor,
again for the record; whatever statenients were made
outside the presence of the defendant are hearsay. I am
State again what your.
95
THE COURT: Well, it will not be binding on the
defendant but anything she said could be used as at-
tacking her credibility of her testimony and showing
a contradictory statement.
[179] Q (Mr. Frank) Officer, will you tell the Court
what she told you?
A She said he was supposed to go to court. He had
been having trouble with his wife. He had shot hiinself
and his brother had taken him to the hospital.
Q All right. And what did you do at that time, Offi-
cer?
A I checked with my dispatcher to ascertain if there
was a victim of a shooting at any of the city hospitals,
at which time he told me that there was one at City
Hospital No. 1.
Q: Officer, after that call did you check the premises?
A Yes, I did. I checked the garage.
Q Why did you go to the garage?
A Well, that is where the shooting is supposed to
have taken place.
Who told you that?
The mother.
That being Mrs. Dewey?
Mrs. Dewey.
That the defendant shot himself in the wavace?
Yes, sir.
MR. WATSON: Your Honor, I assume my objection
is going to all this line.
THE COURT: Yes. —
Q (Mr. Frank) What did you find in the garage?
A I found a .22 caliber rifle lying on the ground in-
side the garage.
Q Officer, did Mrs. Dewey identify the rifle?
A She did. She identified it as belonging to her son,
the one who had shot himself.
>O>rO ro
[180] Q Now, Officer, did you in fact go to the hos-
pital?
A Yes, I did.
Q All right. At the hospital did you talk to—
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96
THE COURT: Pardon me. ! want the record to show
that at this time any statements made by this woman
is only admitted for the sole purpose of the credibility.
MR. FRANK: : Credibility?
THE COURT: All right.
Q (Mr. Frank) ” At the hospital you also talked to a
Homer K.? Is that correct? -
+>
A Yes, that’s correct.
Q That is the brother of the defendant in this case? _
A That’s correct.
Q Did you take any statement from him?
A Yes. He told me that his brother shot himself in
‘the stomach, and he brought him to the hospital.
Q All right. After talking to Homer K., did you. in
fact see James Drope, the defendant in this case?
A Yes, I did.
Q Where did you see him?
A When I saw him, he was laying on a stretcher out
in the hall of the Emergency Room.
Q Can you tell the Court if you talked with him at
that time?
A ‘Yes, I did.
Q All right. Can you tell us whether or not he was
conscious?
A Yes, he was conscious. .
Q Can you tell us, was he able to talk with you?
[181] A Sure he was able to talk with me.
Q Can you describe his speech?
A It was clear.
Q Clear. Was it coherent?
A Yes, it was.
Q All right. Now, at that time when you talked with
him, what did he tell you, Officer?
A He told me—
MR. WATSON: Now, if your Honor please, I must
object to this for the reason that I understood his testi-
mony is to be offered to attack the credibility of Mrs.
Dewey.
THE COURT: Up to this time her statement, but
that isn’t the main purpose.
Riso gett ee OLE
vd
MR. WATSON: All right. You are going beyond
that?
THE COURT: Yes.
MR. WATSON: 0. K.
Q (Mr. Frank) Officer, at that time did the defend-
ant make a statement to you?
A Yes, he did.
Q What did he say to you?
A He said he was supposed to go to court for rape,
and he. didn’t do it; he rather be dead than to go to trial
for something he didn’t do. So he got his rifle out of his
basement and went to the garage and shot himself.
Q Did he at any time when he was talking with you
mention the word “blackout”, that he couldn’t remember
how he was shot?
A No, sir, he didn’t.
Q Officer, did you reduce this information to a police
report?
A Yes.
[182] Q I show you that which is marked ‘State’s
Exhibit 1. Will you look at that and identify that for
the Court?
A Yes. This is the report I made, a copy of it any-
way.
Q Does that report include all the statements —
from all the people in this case?
A Yes, it does.
Q Also includes the statement by the defendant in
this case?
A Yes, it does..
Q In fact, it includes the statement you just made to
the Court, is that correct?
A That’s correct.
Q At any time during the time you were talking with
Drope, did he lose consciousness?
A No, he didn’t.
Q. Did you determine his injury, the severity of his
injury at that time?
A Before I talked to him I talked to the doctor to
find out his condition, and the doctor said he wasn’t
ae
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a
98
critical, upstairs he would be admitted and I could in-
terview him, at which time I did.
Q You actually got. permission from the doctor?
A From the doctor, yes.
Q Spmetime that morning, Officer, did you talk to an.
~ Officer of the Circuit Attorney’s Office?
A Yes, I did. | :
Q And did you relate the police report to that officer
of the Circuit Attorney’s Office? . .
A Yes.
Q And, in fact, a copy of that report was forwarded -
to the office immediately, is that correct?
A This is correct.
[183] MR. FRANK: I heave no further questions at
this time.
CROSS-EXAMINATION
BY MR. WATSON:
Q Officer, what time was it when you conveyed this
information to the office here in the Circuit Attorney’s
Office?
A Oh, it must have been around 9:00 o’clock, 9:15,
around there, a little after.
Q About 9:00 or 9:15?
A About 9:00 or 9:15.
Q You conveyed all this information that is contained
in this police report to the officer from the Circuit Attor-
ney’s Office; is that correct?
A This ig correct. I made a call from the station.
Q Who was this man in the Circuit Attorzey’s office?
-A Named Billings.
Q Mr. Billings. I see. Now, Officer, you say that
would be about 9:00 or 9:15 on the morning of June
25th, 1969; is that right?
A Yes, sir, that is correct,
Q The same day this occurred?
A Yes, sir.
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Q Now, when you say you interviewed Mrs. Dewey,
and she said that her son shot himself, is that your testi-
mony?
A Yes, sir.
Q Did she tell you, officer, that she saw him shoot
himself?
A No, sir, she didn’t.
Q She just said that he shot himself?
A Yes.
Q But didn’t say that she had seen it?
A No, sir.
[184] Q Then you say you talked to his brother later
‘
at the City Hospital?
A Yes, sir. -
f And*he also told you that his srother hee Lot him-
?
A Yes, sir.
‘Q Did you ask him whether he had seen him shoot
himself?
A No, sir, I didn’t.
Q And did he ever intimate or say to you that he did
see him shoot himself?
A No, sir.
Q He did not. ‘Officer, when you had all this infur-
mation at 9:00 o’clock on the morning of June 25th,
1969, were you requested by the Circuit Attorney’s Of-
fice 2nd State of Missouri to come into court and testify
about this information in regard to this information you
had received at that time by 9:15 that morning?
A Requested on the. same date?
Q Yes, sir.
A No, sir.
Q You were not requested to come here at all?
A No, sir, not on the same date.
MR. WATSON: I believe that is all, Your Honor.
REDIRECT EXAMINATION
BY MR. FRANK:
Q Just one final question, Your Honor. Officer, isn’t
it a fact that your police report indicates that you per-
100
sonally talked to Officer Billings of our office, and at that
time he requ
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