State v. Treadway

• Decision Date: 10 November 1977
• Docket Number: No. 60140,60140
• Citation: 558 S.W.2d 646
• Parties: STATE of Missouri, Respondent, v. Ronald TREADWAY, Appellant.
• Court: Missouri Supreme Court

Page 646

558 S.W.2d 646

STATE of Missouri, Respondent, v. Ronald TREADWAY, Appellant.

No. 60140.

Supreme Court of Missouri, En Banc.

Nov. 10, 1977 Respondent's Motion for Rehearing Denied Dec. 19, 1977.

Terry Burnet, Charles H. Mostov, St. Louis, for appellant.

J. Mike Davis, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant, Ronald Treadway, was convicted in one count of robbery in the first degree (§ 560.120, RSMo 1969) and in one count of armed criminal action (§ 559.225, RSMo Supp.1976), in the Circuit Court of the City of St. Louis. Punishment on the first count was assessed at fifteen years. Punishment on the second count was assessed at three years to commence at the expiration of the sentence imposed on the first count. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Evidence at trial showed that on September 25, 1976, Rotha Grimes, her daughter and granddaughter, and Sandra Bequette and her two children drove to Rinderer's Drug Store at 3501 Carter. Mrs. Grimes, the driver of the car, parked at the curb beside the drug store. Mrs. Grimes' daughter, Jerri Hanks, left the car and entered the drug store, leaving her purse on the floorboard of the front passenger's side where Mrs. Bequette was sitting. Two males then approached the vehicle. One of these men was identified by Mrs. Grimes as the appellant, Ronald Treadway. Appellant opened the car door on the passenger's side of the car while his companion stuck a gun inside the car, pointing it at Mrs. Grimes and Mrs. Bequette. Appellant leaned in and demanded the two women give him their purses. Mrs. Grimes told appellant to get out, then slapped his hand as he reached to remove the purses from the front seat between the two women. Appellant then stated, "Give me your purses or we'll kill you." Mrs. Grimes responded by slapping his hand again and blowing the horn. Appellant then hit Mrs. Bequette's leg with his fist and knocked her foot off of Mrs. Hanks' purse, grabbed the purse, and the two men ran from the car.

Mrs. Grimes called the police immediately after the incident and described appellant's facial characteristics and clothing to the responding officer. She was unable to give a height and weight description other than by comparing appellant's build to that of a passerby, which the officer noted. Mrs. Grimes subsequently identified appellant's photograph from photographs shown to her by the police. She also identified appellant from a lineup conducted at a police station. Mrs. Bequette was unable to give a description to the police or to identify anyone as her assailant.

Based on this evidence, the jury returned verdicts of guilty on the charges of robbery in the first degree and armed criminal action. Appellant was sentenced to terms of fifteen years on the robbery count and three years on the armed criminal action count, said terms to run consecutively. The trial court indicated it felt it did not have discretion to sentence appellant to concurrent terms because of the provisions of § 559.225, RSMo Supp.1976, the armed criminal action statute.

Appellant first alleges that the trial court erred in refusing to strike for cause juror Robert Duke because Mr. Duke indicated at one point in voir dire examination that he felt the fact that the State had charged the appellant with a crime should be considered and he believed the State had the basis of a case. During Mr. Duke's examination the following took place:

"MR. BURNET: . . . Now, as Mr. Carmody indicated to you, the fact that Mr. Treadway was charged is no evidence whatsoever that he's guilty of this crime, alleged crime. Now, Mr. Duke, do you understand that principle?

"MR. DUKE: No, I don't, sir.

"MR. BURNET: The principle is that the fact the man has been charged is no evidence.

"MR. DUKE: I understand that.

"MR. BURNET: You understand?

"MR. DUKE: You're innocent till you're proven guilty, I understand that.

"MR. BURNET: Would you consider the fact that he has been charged with this robbery any evidence that he's committed it?

"MR. DUKE: I think the evidence should be considered.

"MR. BURNET: You consider the fact that the State has charged this man, that the State has charged this man as to the guilt?

"MR. DUKE: Yes. They have the basis of a case.

"MR. BURNET: All right. May we approach the bench?

"THE COURT: I didn't hear his answer.

"MR. BURNET: Would you repeat your answer, please?

"MR. DUKE: Sir, I think if the State did not have a case, they probably wouldn't have filed it in Court.

"THE COURT: Well, Mr. Duke, I think what both lawyers are trying to tell you is that before the defendant can be found guilty, the guilt must be proven beyond a reasonable doubt.

"MR. BURNET: I'd move to strike.

"MR. CARMODY: Judge, I'd like to have the opportunity of examining him before he's stricken for cause.

"THE COURT: And, the mere fact that he has been arrested; and the mere fact that he has been charged with a crime does not mean that he's guilty. That's what the lawyers are trying to tell you. You understand that?

"MR. DUKE: Yes.

"THE COURT: And, until the State comes forward with enough evidence to prove that he's guilty beyond a reasonable doubt, he's presumed to be innocent. That's what the law says. Now, you agree with that?

"MR. DUKE: I agree with that.

"THE COURT: The mere fact that he has been arrested and he has been charged with a crime, do you believe that to be evidence that he's guilty?

"MR. DUKE: No, sir.

"THE COURT: All right.

"MR. BURNET: But, Your Honor, that is not the question I asked the man. I asked the man if the fact that he was charged, if he believed that was any evidence of this crime, and he indicated, yes.

"THE COURT: I asked him the same question.

"MR. BURNET: I make a move to strike. I make a move to strike Juror # 132 on that basis.

"THE COURT: What does the State have to say?

"MR. CARMODY: Your Honor, I think the gentleman just responded that he would not consider the fact that the man is charged with a crime as evidence of his guilt. I think that possibly the way that Mr. Burnet phrased his initial question may have confused him somewhat. But, I think that now, he has stated unequivocally that he would not consider that as evidence of his guilt, and that he would presume the man to be innocent and the State would have to prove guilt beyond a reasonable doubt.

"THE COURT: That's what I understood, too. All right, he will not be struck for cause.

"MR. CARMODY: Judge, I'm just going to clarify his answer if I may. Mr. Duke, just for purposes of clarification, are you saying that you would be able to presume the defendant to be innocent; and that you know that the State has to prove his guilt beyond a reasonable doubt? Can you apply those two things?

"MR. DUKE: I think so.

"MR. CARMODY: Okay. And, you would not assume that as evidence, the fact that he's charged with a crime? In other words, he stands charged with a crime, would you use that as evidence, or would you just listen to the evidence from the witness stand? Would you use the fact that he's charged with a crime as evidence?

"MR. DUKE: No."

In determining the qualifications of a prospective juror, the trial court has very wide discretion, and the court's ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion. State v. Jones, 384 S.W.2d 554 (Mo.1964); State v. McGrew, 534 S.W.2d 549 (Mo.App.1976). All doubt should be resolved in favor of the finding of the trial court because he is in a far better position to determine a challenge for cause than an appellate court. State v. McGrew, supra.

In determining whether or not a venireman can act impartially, it is necessary to view all the facts presented and not selectively include or exclude certain facts. In the instant situation, venireman Duke appeared to indicate in answer to questions by defense counsel that he would consider the fact that appellant had been charged with a crime as some evidence of guilt. However, upon further questioning by the court, Mr. Duke's views were clarified and he indicated that he would not consider the fact that appellant was charged with a crime as evidence of guilt. Further, Mr. Duke indicated that he understood and agreed with the presumption of innocence and the reasonable doubt standard. Under these circumstances it cannot be said that the trial court abused its discretion in refusing to strike Mr. Duke for cause. State v. Drake, 518 S.W.2d 335 (Mo.App.1975).

Appellant relies on the cases of State v. Holliman, 529 S.W.2d 932 (Mo.App.1975); State v. Carter, 544 S.W.2d 334 (Mo.App.1976); and State v. Thompson, 541 S.W.2d 16 (Mo.App.1976) to substantiate his contention that it was error for the trial court not to strike Mr. Duke for cause. In each of these cases, a venireman indicated some prejudice which would disqualify him from service. In Thompson and Carter the trial court summarily denied the motions to strike for cause without asking any clarifying questions. In Holliman, the trial court indicated he felt he was bound by the venireman's own assessment of his ability to provide the defendant with a fair trial and failed to exercise discretion. These situations differ from the instant case because the trial court affirmatively exercised his discretion in asking clarifying questions of Mr. Duke to determine his suitability as a juror. An abuse of this discretion is not shown by the record.

Appellant next asserts that the trial court committed reversible error by sustaining the prosecutor's objection to a portion of defense counsel's closing argument. During closing argument defense counsel stated:

"She hangs her hat on what she observed of his face. Well, you get those pictures, you ask for those pictures. Did you hear her mention the scar over Mr. Treadway's eye? Did you hear her mention the scar on the middle of his forehead?"

The prosecuting attorney then...