State v. Brown

• Decision Date: 17 November 1998
• Docket Number: No. 73538,73538
• Citation: 984 S.W.2d 535
• Parties: STATE of Missouri, Appellant, v. Scott Edward BROWN, Respondent.
• Court: Missouri Court of Appeals

Page 535

984 S.W.2d 535

STATE of Missouri, Appellant, v. Scott Edward BROWN, Respondent.

No. 73538.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 17, 1998.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Joiner, Asst. Atty. Gen., Jefferson, for appellant.

Bradford Kessler, Clayton, for respondent.

RICHARD B. TEITELMAN, Judge.

Scott Edward Brown ("Defendant") was found guilty by a jury of murder in the first degree, Section 565.020.1, RSMo 1994, in the Circuit Court of St. Charles County. Defendant filed a Motion for New Trial. The trial court, the Honorable Donald E. Dalton, issued an order granting Defendant's Motion. The State appeals pursuant to Section 547.200.2, RSMo 1994.

We reverse the trial court's Order granting the Motion for New Trial and remand the case to the trial court with instructions to enter judgment and sentence according to the jury's verdict.

Factual and Procedural Background

After a jury has rendered a verdict of guilty, this Court considers the evidence in the light most favorable to the verdict. State v. Schuler, 838 S.W.2d 19, 20 (Mo.App. E.D.1992); State v. Couch, 793 S.W.2d 599, 601 (Mo.App. E.D.1990).

Rebecca Brown ("the victim") was strangled at her home at 412 Boone Street on the morning of January 14, 1992. Defendant, the victim's husband, was convicted of her murder. One of Defendant's neckties may have been the murder weapon.

At the time of the murder, a man wearing clothing similar to Defendant and walking toward a car resembling Defendant's was seen near the scene of the murder. In March 1991, Defendant, having forged his wife's signature and overstating her income, purchased a $200,000 life insurance policy naming himself as beneficiary. Two and one-half months before the victim's murder, Defendant increased the coverage to $250,000. While awaiting trial, Defendant indicated to John Conway, another inmate, that he was hostile toward the victim and called her a murderer because she had had an abortion.

After the jury found him guilty of his wife's murder, Defendant filed a Motion for New Trial raising numerous points of error. On grounds unrelated to Defendant's points of error, Judge Dalton, stating several grounds, entered an Order granting Defendant's Motion for New Trial.

Discussion

The trial court has broad discretion in determining whether or not to grant a motion for new trial. On review, we will affirm the trial court unless its action was a clear abuse of discretion. State v. Stone, 869 S.W.2d 785, 789 (Mo.App. W.D.1994). The State argues that the trial court erred and abused its discretion because the basis for the court's ruling is without factual or legal support in the record. We agree.

In his Order granting Defendant's Motion for New Trial, Judge Dalton determined that the State had barely made a submissible case, and that this was evidenced by the length of the jury's deliberation. He stated that all of the evidence presented, except the evidence presented by the testimony of John Conway and James Helmig, pointed to two equally valid inferences. Additionally, he determined that John Conway's testimony was "suspect," and stated three reasons why he felt Conway was not a credible witness: the fact that he was a convicted felon, the fact that he had made a "deal" with the State, and the fact that his demeanor during his testimony indicated he was biased against Defendant. Finally, Judge Dalton stated that Conway's testimony was "unresponsive," "self serving," and "bolstering of his own testimony," and also challenged Defendant to testify.

The trial court's reasons for granting the Motion are not supported by the record. ¹ First, the trial court's determination that the length of jury deliberations is indicative of an alleged weakness in the State's case is mere speculation. Nothing in the record indicates the jury reported an interim deadlock during deliberations or that a "hammer instruction" was ever given because the trial court was concerned that the jury was experiencing difficulty in reaching a verdict. See, e.g., State v. Jones, 545 S.W.2d 659, 665-66 (Mo.App. E.D.1976). The amount of time it takes for a jury to deliberate is irrelevant. Given the length of the trial, the extensive evidence presented, and the seriousness of the offense charged, this Court does not consider eleven hours of deliberation excessive in this case.

Additionally, the equally valid inference rule has been abolished in Missouri. See, State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998); State v. Grim, 854 S.W.2d 403, 413-14 (Mo. banc 1993). Therefore, a reliance on the evidence supporting "two equally valid inferences" is improper.

Finally, John Conway's testimony does not provide a basis for granting a new trial. The trial court first stated that Conway's testimony was "suspect" for three reasons: (1) his prior conviction can be used to "impugn his credibility," (2) his "deal" with the State can be used to "impugn his credibility," and (3) his obvious bias against Defendant as evidenced by his statements and manner while testifying.

The interest or bias of a witness is always relevant. State v. Edwards, 637 S.W.2d 27, 29 (Mo.1982); State v. Bounds, 857 S.W.2d 474, 476, (Mo.App. E.D.1993). "Facts and circumstances that show bias may be shown either by cross-examination of the witness sought to be impeached or by extrinsic evidence." State v. Buckner, 929 S.W.2d 795, 799, (Mo.App. W.D.1996), citing State v. Foster, 854 S.W.2d 1, 4 (Mo.App. W.D.1993).

In the case at bar, Conway testified regarding a prior conviction in California and to his guilty plea to charges of resisting arrest and assault of a police officer in Missouri. On cross-examination, Conway admitted to trying to work out a "deal" with the State in return for his testimony, including his initial request to be transferred to another prison and the early release from prison that he actually received.

The jury was aware of Conway's criminal convictions, his "deal," and was also in a position to determine if Conway had an "obvious bias" against Defendant. Defendant was granted broad latitude in cross-examining Conway. The record indicates the State did not object to defense counsel's asking questions to impeach Conway, nor were there any objections to the answers to these questions. Credibility is in the province of the jury and it may believe all, some, or none of the witnesses' testimony in arriving at its verdict. State v. Jeffries, 858 S.W.2d 821, 824 (Mo.App. E.D.1993).

The trial court also stated that Conway's testimony included statements that were unresponsive, self-serving and bolstering, and that Conway challenged Defendant to testify.

Unresponsive answers in and of themselves are not improper unless the testimony itself is improper in some way. None of Conway's responses were in and of themselves inadmissible. In some instances, there was admonishment by the court that he should only speak when a question was asked of him or that he should answer questions and not volunteer information. Conway made only one unresponsive remark that the trial court instructed the jury to disregard, and that remark did not refer to Defendant. ²

Additionally, Conway's statements do not fit the definition of "bolstering" as used by Missouri courts. In State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), the Missouri Supreme Court held that "bolstering" is improper, stating "[w]hen a witness testifies from the stand, the use of duplicating and corroborative extrajudicial statements is substantially restricted." Id. at 441. Thus, the introduction of a witness' deposition testimony if the witness testifies at trial would be improper. Id. However, this does not apply where a witness testifies at trial...