State v. Brown

• Citation: 554 S.W.2d 574
• Decision Date: 26 July 1977
• Docket Number: No. 35977,35977
• Parties: STATE of Missouri, Respondent, v. Ronald William BROWN, Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 574

554 S.W.2d 574

STATE of Missouri, Respondent, v. Ronald William BROWN, Appellant.

No. 35977.

Missouri Court of Appeals, St. Louis District, Division Two.

July 26, 1977.

Allen I. Harris, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John A. Roche, Jr., Asst. Circuit Atty., St. Louis, for respondent.

STEWART, Judge.

Ronald William Brown was convicted by a jury of manslaughter and of carrying a concealed weapon. The jury was unable to assess punishment on either count. The trial court sentenced the defendant to serve five years in the Missouri Department of Corrections on the manslaughter conviction and two years on the conviction of carrying a concealed weapon. The sentences to run consecutively.

We affirm the judgment of the trial court as it relates to the conviction of the defendant on both charges, and we remand the cause to the trial court for resentencing in the light of State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

The manslaughter conviction arises out of an automobile collision. Viewed in the light most favorable to the State, the jury could have found that Officer Joseph Kriska and his partner, Officer Charles Dreppard, were on duty at about 1:50 a. m. They were standing in front of their patrol car, which was facing east on Russell Avenue at its intersection with Nebraska Avenue in the City of St. Louis. Mrs. Ann Brown, defendant's wife, who was driving westwardly on Russell Avenue, stopped her car opposite the officers' parked car. She told them that her husband was in the car directly behind her; that he had a pistol and that she was being forced "to go with him" against her will.

As Mrs. Brown was speaking to the police officers, the car driven by defendant pulled around her car, accelerated, violated the boulevard stop sign at the intersection, and proceeded west on Russell Avenue toward Grand Avenue at a high rate of speed. The officers made a U-turn, activated the patrol car's flashing red lights and siren, and gave chase. The police officers radioed the police department dispatcher that a pursuit was in progress. They observed the defendant's car violate another stop sign at Compton Avenue and clocked his speed at approximately 70 miles per hour. The officers observed defendant's car enter the intersection of Russell Avenue and Grand Avenue without diminishing its speed and collide with another car driven by Vernon Calvert. There was a flashing red light, which was facing traffic traveling west on Russell Avenue at its intersection with Grand Avenue. The police officers stopped their squad car in the intersection and observed defendant get out of his car and collapse on the street. The defendant was identified at trial by both police officers as the only person they saw get out of the car that they were pursuing. A search of the defendant after arrest produced a loaded .25 caliber automatic pistol, which was fully concealed in the defendant's coat pocket. Vernon Calvert, the driver of the other car, died as a direct result of the injuries that he sustained in the collision.

Other facts will be set out as necessary to the disposition of the points raised.

We first consider defendant's contention that the trial court erred when it permitted the State to change one of its peremptory challenges after the defendant had made his strikes, because to do so was in contravention of that portion of § 546.200 RSMo 1969, ¹ which provides that the State shall make its peremptory challenges after which the defendant shall make his challenges.

We first face the problem of determining what occurred at the trial that gives rise to this complaint. The record recites that upon completion of the voir dire "the jury was selected but not sworn."

Thereafter, the transcript relates a conference held in chambers between the court and counsel at which defendant objected "to the jury as the list is now compiled." Defendant stated that after the State had made its strikes and after defendant had made his strikes, the State changed one of its strikes. The attorney for the State explained that before he knew who was stricken, but while the sheriff was calling the jury by number, the attorney advised the sheriff that he had made a mistake in his strikes; that he had intended to strike a Mr. Powell and to leave a Mrs. Hamilton on the panel. He explained that Mr. Powell was acquainted with a partner of the firm representing defendant. The sheriff seated Mrs. Hamilton.

No record was made of the proceedings that transpired in the court room. We will consider the issue to the extent that the statements of defendant are admitted by the State. Politte v. Wall, 256 S.W.2d 283 (Mo.App.1953). Defendant sought no affirmative relief. Defendant, however, need not seek affirmative relief in such a situation. State v. Brown, 547 S.W.2d 797, 804(9) (Mo. banc 1977).

The court explained to counsel that before swearing a jury, he always asks the attorneys if the individuals seated in the jury box are the same jurors as were intended to be selected by reason of the exercise of their strikes. If not, he permits counsel to correct any mistakes. The court then stated: "(I)f Mr. Harris (Defendant's counsel) wants additional time to select his jury in the light of the fact that Mr. Allred (Assistant Circuit Attorney) may or may not have changed his selections, then of course I would give him that opportunity. If he feels he does not need it, then whatever objection he has is overruled."

Prior to swearing the jury the court asked defendant's counsel if he had anything he wanted to say, to which he replied, "No." When asked whether the individual jurors were the jury selected by the parties, counsel answered: "Subject to the objection previously made, this is the jury."

It has often been said that statutes relative to the empaneling of juries are directory, and when they are not followed, will not be grounds for reversal absent a showing that the defendant had been prejudiced. State v. Perno, 23 S.W.2d 87, 89(2) (Mo.1929). ² The privilege of exercising peremptory challenges is a process of rejection and not of selection. The purpose of the jury selection procedures is to obtain a fair and impartial jury. State v. Thomas, 530 S.W.2d 265, 267 (Mo.App.1975). Defendant here does not contend that he was not tried by a fair and impartial jury. He does not contend that any of the individual jurors were not fair and impartial. Defendant has not demonstrated how he may have been prejudiced. At most defendant complains only of procedural error without prejudice, which is not reversible. State v. Thomas, 530 S.W.2d at 268.

Our Supreme Court has recognized that situations such as the issue before the trial court can arise and that it is within the discretion of the trial court to permit the parties to correct a mistake even after the jury has been seated, but not sworn; that to permit the party to correct a mistake is within the sound discretion of the court. State v. Harris, 356 S.W.2d 889, 890(2) (Mo.1962). We do not rule that a correction may not be made after the jury has been sworn.

In the case at bar, after the State had corrected its mistake and after the jury was seated, but not sworn, the court offered to permit the defendant to make all of his strikes anew.

We have reviewed the case of State v. Steeley, 65 Mo. 218 (1877), which is relied on by defendant. In Steeley, the State refused to reveal its strikes before defendant made his strikes. In the case at bar, the strikes were revealed, but one was a mistake. After the mistake was corrected, the array as stricken by the State was reopened to defendant. Steeley is not appropriate here.

Finding no abuse of discretion on the part of the trial court and no prejudicial error, we rule this issue against the defendant.

The defendant urges that the trial court should have granted his request for mistrial when the State asked the victim's widow the following question:

"Q. But you know do you know you heard him (the insurance representative) say one thing; that the company had taken the position had said this man was completely responsible."

The defendant objected on the grounds that the question was "irrelevant" and asked that the court grant a mistrial. The court promptly sustained the objection and instructed the jury to disregard the question. It overruled defendant's motion for mistrial.

It has often been repeated that: "The granting of a mistrial is a drastic remedy, to be exercised only in those circumstances in which no action short of a mistrial would remove the prejudice claimed." State v. Johnson, 504 S.W.2d 23, 29(7) (Mo.1973). The question of whether a mistrial should be granted is a matter within the sound discretion of the trial judge; he is in the best position to determine the prejudicial effect of events occurring at trial. We may reverse only where there has been an abuse of discretion.

While we can say that the question here is a display of ineptitude on the part of the Assistant Circuit Attorney, we find no abuse of discretion on the part of the trial court.

The court acted promptly to prevent the witness from answering the question and took every measure to remedy the situation short of declaring a mistrial. There was no reversible error.

The defendant next complains of that portion of Instruction No. 1, which contains the range of punishment ³ with respect to the charge of manslaughter. The instruction informs the jury that the minimum fine, which they could assess, was $1,000.00. Section 559.140, RSMo 1969, provides for a minimum fine of $500.00. The instruction in this regard is erroneous. Our primary concern is whether this error was prejudicial.

In our discussion of the case, we must keep in mind the fact that this case was tried in two counts. The misdirection is applicable only to the charge of manslaughter and not to the charge of...