State v. Ball

• Decision Date: 14 July 1981
• Docket Number: No. 42497,42497
• Citation: 622 S.W.2d 285
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Edward BALL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 285

622 S.W.2d 285

STATE of Missouri, Plaintiff-Respondent, v. John Edward BALL, Defendant-Appellant.

No. 42497.

Missouri Court of Appeals, Eastern District, Division One.

July 14, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for plaintiff-respondent.

DOWD, Judge.

Defendant-appellant, John Edward Ball, was convicted by a jury of first degree robbery in violation of § 569.020 RSMo 1978. Sentence was assessed by the jury and imposed by the trial court at twenty-seven years imprisonment. Defendant appeals. We affirm.

The charge against defendant arose out of the robbery of a Clark gas station located in St. Louis County, Missouri. On March 12, 1979, at approximately 7:30 p. m., police officer John Kling drove past the Clark gas station and observed a man standing on the sidewalk next to the gas station. Kling stopped to talk with this man. The man identified himself as James Allen and produced a social security card bearing that name. The man said he was on his way home, and Kling did not detain him further. Kling subsequently identified defendant as the man he talked with on this evening.

John Meatte was the only employee working at the Clark gas station on the evening of March 12, 1979. He observed a man, whom he subsequently identified as defendant, walk up to the window of the gas station building. After the man pointed to a soda machine, Meatte opened the door and invited the man inside. The man initially asked for change for one dollar. He then pulled a .44 or .45 caliber revolver out of his coat pocket and told Meatte to "(b)e cool." Meatte then gave the man the gas station's money. After the man left the station Meatte notified police. On March 21, 1979, Meatte was shown photographs of five individuals and identified defendant's photograph as the man who robbed him. Later on this same day, Meatte selected defendant from a lineup consisting of five individuals. At trial defendant presented alibi testimony by seven witnesses, including his mother and three sisters, that he was attending a birthday party at the time of the robbery.

Defendant has raised nine points of alleged error on this appeal. He first contends the trial court erred in permitting the assistant prosecuting attorney to ask two questions during voir dire which allegedly were improper, inflammatory and prejudicial. During voir dire, one venirewoman indicated she might have difficulty as a juror "in this type of case." After further examination, it was established that the venirewoman had been the victim of an armed robbery some eight or nine years ago. The prosecutor eventually asked the following question: "Let me ask you this: I assume well, this wasn't the man who robbed you, is that correct?" ¹ Defendant's objection and request for a mistrial were overruled by the trial court.

One of the purposes of voir dire examination is to ferret out any bias or prejudice on the part of potential jurors. State v. Ward, 569 S.W.2d 341, 344 (Mo.App. 1978). The trial court is vested with broad discretion in controlling voir dire examination, including the nature and extent of specific questions. On appeal, the exercise of the trial court's discretion will be disturbed only when the record shows a manifest abuse of that discretion. State v. Lumsden, 589 S.W.2d 226, 229 (Mo.banc 1979) cert. denied 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980); State v. Sempsrott, 587 S.W.2d 630, 635 (Mo.App. 1979). We find no abuse of discretion in permitting the above question. Viewed in context, the question was directed at determining whether the venirewoman could be fair and impartial toward the defendant, who was on trial for armed robbery, in light of the fact that she had been the victim of an armed robbery several years earlier.

The second challenged question occurred after a discussion by the prosecutor concerning how the concepts of good and evil are portrayed to children. Essentially, the prosecutor stated that good is represented by something beautiful and evil by something ugly. The prosecutor then asked the following: "Is there anyone here who's going to make a judgment or who expects evil this man's appearance to look a particular way? Is there anyone here who still believes in those childhood depictions?" Again viewing the question in context, the prosecutor sought to learn whether anyone on the panel would judge the defendant on his appearance. We fail to see how this question would be inflammatory, and it certainly did not reflect on defendant's character. There was no error in permitting the question.

Defendant next contends the trial court erred in permitting the prosecutor to explain the burden of proof to the jury during voir dire because such an effort constituted an improper instruction on the law. The prosecutor stated, "Do you all realize that the State of Missouri has the burden of proof in this area?" Defendant's objection to any questions about the burden of proof was overruled, and the prosecutor continued: "The State has the burden of proof. In other words, we have the burden of proving Mr. Ball guilty .... And the burden, the particular burden that we have to satisfy you with is that beyond a reasonable doubt. ... You know, I didn't say beyond any and all doubt. I said beyond a reasonable doubt. Do you all realize that that's more than just a slight doubt? Does anyone have any problem with that? (No response). That the phrase of beyond a shadow of a doubt is meaningless in the law. You all realize that?"

It is not the prerogative of counsel to inform the jury as to the law. State v. Smith, 422 S.W.2d 50, 68 (Mo.banc 1967). It is improper for counsel to attempt to define "reasonable doubt." State v. Van, 543 S.W.2d 827, 830 (Mo.App. 1976); State v. Sanders, 541 S.W.2d 782, 784 (Mo.App. 1976); State v. Sanders, 539 S.W.2d 458, 464 (Mo.App. 1976); State v. Belleville, 530 S.W.2d 392, 395 (Mo.App. 1975). See State v. Burnfin, 606 S.W.2d 629, 631 (Mo. 1980). It is not error, however, for counsel to merely discuss reasonable doubt without defining it. State v. Simmons, 602 S.W.2d 13, 16 (Mo.App. 1980); State v. Hammond, 578 S.W.2d 288, 290 (Mo.App. 1979); State v. Wilbon, 561 S.W.2d 133, 134 (Mo.App. 1978). The state asserts that the prosecutor's comments regarding a "slight doubt" and a "shadow of a doubt," while improper, were harmless and nonprejudicial. We agree that such comments do not constitute prejudicial error. The prosecutor's statements which indicated that reasonable doubt was not "beyond any and all doubt" or "slight doubt" or "beyond a shadow of a doubt" were not legally incorrect. See State v. Henderson, 547 S.W.2d 141, 143-144 (Mo.App. 1976). Although we condemn the practice and admonish all prosecutors and defense counsel not to inform the jury what the law is or what counsel believes the law to be, we find nothing in the remarks which might have injured defendant's cause or prejudiced his case. Defendant's second point is denied.

Defendant next contends that several comments by the prosecutor during trial constituted references to his right not to testify. The fifth amendment of the United States Constitution and Article I, § 19 of the Missouri Constitution prohibit comment on an accused's failure to testify in a criminal trial. The ultimate test of whether the prosecutor commented on the accused's failure to testify is whether the jury's attention was called to the fact that the accused did not testify. State v. McCall, 602 S.W.2d 702, 705 (Mo.App. 1980).

The first challenged statement occurred during voir dire when the prosecutor stated: "Now, it's obvious that those of you who were selected as jurors in the case are going to be put in the position of sitting in judgment of another person; namely, the defendant. But also of all the witnesses in the case that will testify for the State." Clearly this was not a comment on defendant's failure to testify or his right to remain silent. The prosecutor was merely informing the jury panel of what their role would be as jurors. The reference to testifying was directed at the state's witnesses and not defendant. Nor would the remarks have the effect of compelling defendant to testify or induce him to remain silent. The prosecutor did not inform the jury that the defendant could testify on his own behalf or could refuse to testify if he so chose. Cf. State v. Lindsey, 578 S.W.2d 903 (Mo.banc 1978) which held that it was prejudicial error when the prosecutor stated during voir dire: "Mr. Lindsey doesn't have to go forward with any evidence if he doesn't wish to. He doesn't have to take the stand if he doesn't want to ."

Nor do we find any error in the remaining two challenged statements. During cross-examination of a defense witness, who was testifying about a party that defendant allegedly attended at the time of the robbery, the prosecutor asked, "Are any of the other people that were there that night here today that you know of?" Following defense counsel's relevancy objection, the prosecutor stated, "He has all these people endorsed." During closing argument the prosecutor stated the following: "Now he's just sitting here a desperate man because he absolutely knows what we're almost totally sure of: He was the man who robbed John Meatte." These statements were not of such a nature that we can say the jury's attention was called to the fact that defendant did not testify at trial. This point is denied.

Defendant's fourth contention is once again directed to certain statements made by the prosecuting attorney. During closing argument the following exchange occurred:

"MR. BARRY: Consider all these things when you consider reasonable doubt. Why does a man plead not...