State v. Billingsley
| Decision Date | 31 December 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 534 S.W.2d 484 |
| Parties | STATE of Missouri, Respondent, v. Wayne BILLINGSLEY, Appellant. 28060. |
| Court | Missouri Court of Appeals |
Ralph E. Smith, Butler, for appellant.
John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
Before TURNAGE, P.J., and WASSERSTROM and SOMERVILLE, JJ.
The information charged defendant with forcible rape. The jury found him guilty and assessed punishment at 13 years imprisonment. On this appeal, defendant raises the single point that the instructions were submitted in incorrect order.
The instructions aggregated ten in number. The first two, copying MAI--CR 2.01 and 2.02, were general instructions given to the jury prior to reception of any evidence. After the close of the evidence and before argument of counsel, the court gave the remaining eight instructions in the following sequence:
No. 3--copies from MAI--CR 2.20--burden of proof and presumption of innocence.
No. 4--patterned on MAI--CR 2.02 and 6.40--the verdict director.
No. 5--patterned on MAI--CR 3.04--a converse instruction.
No. 6--patterned on MARI--CR 3.58--limiting the relevancy of defendant's prior convictions.
No. 7--patterned on MAI--CR 2.03--'facts not assumed.'
No. 8--copied from MAI--CR 2.80--jury procedure and use of verdict forms.
No. 9--patterned on MAI--CR 4.50--if the jury finds defendant guilty but is unable to agree on punishment, the court will do so.
No. 10--patterned on MAR--CR 2.68--concerning closing argument of counsel.
Defendant complains that the foregoing sequence violated the Notes on Use applicable to MAI--CR. Under the Note to MAI--CR 2.03, that instruction should be the first given at the close of the evidence; so that Instruction No. 7 in this case should have been given as Instruction No. 3. Similarly, the Note under MAI--CR 2.80 provides that it should be given immediately before the last instruction; so that Instruction No. 8 in this case should have been given in the position of Instruction No. 9. Rule 20.02(e) provides that the violation of any applicable Note on Use shall constitute error. As defendant correctly points out, the case law establishes that any such error must be deemed prejudicial unless the contrary clearly appears. Defendant argues that the burden of proof to show non-prejudice was on the State and that the State failed to carry that burden.
It cannot be overemphasized that the present Missouri Approved Instructions, both civil and criminal, contemplate religious observance both as to the forms themselves and the instructions contained in their Notes on Use. Wisdom dictates against any variation from these mandatory instructions, since any change unnecessarily places at hazard the results of an entire trial, attained at the expense of much time, energy and cost.
Nevertheless, not every deviation will have a fatal result. Rule 20.02(e) relating to criminal instructions, just like Rule 70.01(c) which covers civil instructions, provides that in the event of a deviation the prejudicial effect is to be judicially determined. In the application of Rule 70.01(c), a number of cases have found a minor variation to be non-prejudicial: State Farm Mutual Automobile Ins. Co. v. Jessee, 523 S.W.2d 832, 836 (Mo.App.1975), and cases cited therein; Ernst v. Emerick, 525 S.W.2d 573, 574 (Mo.App.1975). Cases under Rule 20.02(e) have similarly determined certain minor variations to be non-prejudicial: State v. Vernor, 522 S.W.2d 312, 316--317 (Mo.App.1975); State v. Fox, 521 S.W.2d 507, 510--511 (Mo.App.1975).
Seeking to have the general rule applied here, rather than the above exception dealing with minor non-prejudicial deviations, defendant relies upon Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317 (Mo. banc 1975). That case is readily distinguishable. In Crystal Tire, the plaintiff sued for fire and explosion...
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