State v. Morris, 55845
| Decision Date | 13 December 1971 |
| Docket Number | No. 1,No. 55845,55845,1 |
| Parties | STATE of Missouri, Respondent, v. Helen MORRIS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Gene P. Graham and Charles E. Vernon, Graham, Paden, Welch & Martin, Independence, for appellant.
Defendant was found guilty by a jury of felonious stealing, a felony (§§ 560.156 and 560.161, RSMo 1969, V.A.M.S.), but the jury could not agree on punishment and so stated in its verdict. The court sentenced defendant to three years imprisonment. Defendant appeals.
Defendant does not question the sufficiency of the evidence. The points raised on this appeal concern events that took place during the voir dire examination of the jury panel, the state's opening statement, and during the jury's deliberations; consequently, an abbreviated statement of facts will suffice.
During the voir dire examination of the jury panel, the prosecutor asked the panel whether they had ever met the defendant or knew her as Helen Morris; whether they knew her by the name of Helen Miles or by the name of Hettie Erskin. Defendant objected on the grounds that the questions were irrelevant, immaterial and for the sole purpose of causing bias and prejudice against defendant. The court sustained the objection; denied defendant's motion for mistrial and then, on request of defendant, instructed the jury to disregard the questions objected to. The prosecutor made no further mention of these or any other names.
Later on during voir dire the prosecutor told the jury that he believed the court would instruct them that the maximum sentence which may be imposed by law was ten years. He then asked if anyone on the panel disagreed with that sentence and believed that such a punishment would be too severe for this type of case. Defendant objected and the court sustained the objection. Defendant moved for a mistrial stating that the prosecutor's statement and question was an attempt to prejudice the minds of the jurors to a sentence in excess of the minimum and to convince the jury that defendant should be given ten years. The motion for mistrial was overruled. No request was made to instruct the jury to disregard the subject statement and question. No further mention was made by the prosecutor regarding punishment on voir dire.
In the course of the state's opening statement, the prosecutor said, 'The state will also show that the security officer, store detective, later went to police headquarters and viewed certain photographs and identified the defendant Helen Morris as the lady who was present in the store on June 21.' Defendant objected and the court sustained the objection. Defendant moved for a mistrial stating that the remarks of the prosecutor indicated to the jury that defendant had been previously convicted, at least previously arrested; that this bore on her reputation, and that the jury had been prejudiced thereby. The motion for mistrial was overruled. Upon request of defendant, the court instructed the jury to disregard the objectionable statement.
Doris Rodgers, a security officer in the employ of Macy's store, testified that on June 21, 1969, she saw defendant in the lingerie department of the store and saw defendant remove two honey-colored peignoir sets from the store rack and put them in her purse; that defendant then took two black peignoir sets and put one of them in her purse; that she, Rodgers, told Mr. Eden, a store employee to stick around so he could go outside with her; that defendant left the store without paying for the merchandise, and that Rodgers and Mr. Eden ran after defendant telling her that she was the security officer and wanted to talk to defendant. Defendant kept running and Rodgers chased her to a car. Rodgers grabbed hold of defendant at the car but defendant pushed Rodgers away and made off in the car. Rodgers grabbed defendant's purse in the scuffle and kept it. The three peignoir sets referred to above were in the purse. Rodgers was about ten feet from defendant when defendant removed the clothing from the store racks and nothing obstructed her vision. The three peignoir sets were introduced in evidence and other testimony showed their value to be $83.
Glenn Eden, a floor supervisor for Macy's, testified he observed defendant in the lingerie department on the occasion in question and saw her leave the store. He followed her. When defendant reached the outer door, she began running toward the parking lot and he and Mrs. Rodgers followed defendant to a car. Defendant got into the car and although Eden tried to keep the door open defendant managed to get the car started and left rapidly.
The defense offered no testimony.
The jury began deliberations at 9:30 a.m., on the second day of trial. At 11:55 a.m., the court excused the jury for lunch, and thereafter they resumed deliberations. At 2:30 p.m., after they deliberated about three and one-half hours, the jury returned to the courtroom and reported they had not reached a verdict. Following this report, the court told the jury foreman that it did not want to know how the jury stood with reference to guilt or innocence but only how it stood numerically, such as six and six, nine and three. The foreman stated they stood at eleven to one. Another juror spoke up and said, 'No' and then said, 'We didn't understand the question, your honor.' The court explained again. The foreman said, 'We have agreed on one thing.' The court asked, 'What have you agreed on?' The foreman answered,' The court then stated,
No objection was made by defendant to the foregoing. The jury retired to deliberate further and at 2:40 p.m., the jury returned its verdict. It stated, 'We the jury find the defendant guilty of felonious stealing, and can not agree on punishment.'
Defendant's first point is that the court erred in failing to sustain defendant's motion for mistrial when the prosecutor on voir dire inquired whether any member of the panel knew defendant under the name of Morris, Miles and Erskin.
Obviously the inquiry as to the name Morris was proper as this is defendant's name. As noted supra, the court sustained defendant's objection to the inquiry concerning the names Miles and Erskin and instructed the jury to disregard the question. The state did not pursue the matter any further on vior dire or thereafter. In an attempt to demonstrate prejudice, defendant develops this point by reciting the testimony of state's witness Officer Wiersma wherein the officer testified that the defendant's purse contained papers standing in the name of Loretta Kester, Lorie Kester and Lorie L. Brown, and that the cumulation of these names inferred to the jury that defendant was a known criminal character. The testimony of Officer Wiersma concerning the names of Loretta Kester, Lorie Kester and Lorie L. Brown was first developed by defendant on cross-examination of the officer, and it was defendant who placed the papers from the purse containing these names in evidence. Apparently defendant offered this evidence for the purpose of arguing later that the person who stole the merchandise was someone whose name appeared on these papers, and not the defendant. Defendant is in no position to complain of the effect of evidence defendant introduced.
In support of their positions, both parties cite State v. Daniels, Mo., 347 S.W.2d 874, 879, in which the court adopted a statement from Petrilli v. United States, 8 Cir., 129 F.2d 101, 104, as follows:
'But where, as here, a reference to the aliases has crept into the proceedings, the situation on appeal will not be controlled by the application of any abstract principle, but by a concrete appraisal of the significance of the incident in relation to the processes of the trial as a whole.'
The record before us demonstrates that the court did not abuse its discretion in refusing to grant a mistrial.
Next defendant complains that the trial court erred in refusing to grant a mistrial following the prosecutor's remark in opening...
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