State v. Browner

• Decision Date: 25 September 1979
• Docket Number: No. 38331,38331
• Citation: 16 A.L.R.4th 795,587 S.W.2d 948
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Leland BROWNER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 948

587 S.W.2d 948

16 A.L.R.4th 795

STATE of Missouri, Plaintiff-Respondent, v. Leland BROWNER, Defendant-Appellant.

No. 38331.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 25, 1979.

Roy A. Walther, III, Crouppen, Walther, Zwibelman & Walsh, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Nels C. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

KELLY, Judge.

Appellant Leland Browner was found guilty by a jury in the Circuit Court of the City of St. Louis of two Counts of Assault with Intent to Kill ¹ on the 1st day of July, 1976. After his motion for new trial was overruled, he was sentenced on July 9, 1976, to the custody of the Missouri Department of Corrections for two terms of seventy-five years, to be served consecutively. He filed a timely notice of appeal raising four Points Relied On as grounds for the reversal of his conviction. We affirm.

The sufficiency of the evidence to support the jury verdict is not raised; therefore a short statement of the facts will suffice.

According to the evidence appellant, Ladel Walton and Eddie Turner drove to the New Age Savings & Loan Ass'n. at 1401 North Kingshighway in the City of St. Louis on July 18, 1975, and upon arriving there discussed their plan to rob the bank. They entered the bank and appellant, armed with a handgun, approached a security guard, and the security guard struggled with him in an effort to disarm him. During the scuffle appellant shot the security guard; the security guard fell behind a counter and the appellant leaned over the counter and shot the security guard two more times.

After this, the appellant moved to another part of the bank and as he did so Mr. Anderson, the Collection Manager of the bank, went to the aid of the security guard. Appellant returned to where Mr. Anderson was with the security guard and when Mr. Anderson observed him approaching Mr. Anderson held up his arms. Appellant shot Mr. Anderson twice.

Both the security guard and Mr. Anderson identified the appellant at trial as the man who shot them.

Appellant's First Point Relied On is that the trial court erred when it denied his motion for a mistrial filed during the voir dire examination of the jury because one of the veniremen stated that she had made a wrong decision concerning the innocence of a defendant in a prior criminal trial, and this statement was prejudicial to the appellant.

Where the question on appeal is whether a remark made by a juror during voir dire examination of a jury panel is so prejudicial as to require a mistrial, the real issue to be resolved is whether the juror's remarks were in fact so prejudicial as to infect the entire panel to the prejudice of the accused. State v. Turner, 462 S.W.2d 723, 725(1) (Mo.1971). The general rule is that the disqualification of an individual juror for expressing an opinion or making remarks indicating a bias or prejudice which might preclude the juror from serving as a juror in a case is not a sufficient ground for a challenge of the entire jury panel. State v. Weidlich, 269 S.W.2d 69, 71(3-5) (Mo.1954). To hold otherwise would be to chill the procedure of attempting to extricate from prospective jurors those hidden prejudices which might deprive either the state or the accused of a fair trial. The evaluation of any effect a juror's answer might have upon fellow jurors during the voir dire proceedings and what action must be taken to assure both sides to the fair trial our system attempts to guarantee must, of necessity, be largely entrusted to the discretion of the trial court. State v. Murphy, 533 S.W.2d 716, 717-718(1-2) (Mo.App.1976).

We note that the juror who gave this response was removed for cause from the jury panel.

In this particular instance the Assistant Circuit Attorney inquired if there was anyone who felt that by reason of any prior jury experience they couldn't be fair and impartial to both parties in the case. Juror No. 1 replied that she would be a bit prejudiced "because we made the wrong decision, which they tell us afterwards." Without any further inquiry into the matter, this juror continued: "I was sick for weeks afterward because I thought I was being a fair person and I voted: Free him. There's no proof. We don't want to put an innocent man in jail. And afterwards, they were all mad at me about it. The others knew he was guilty. And I felt we were being made fools of by not giving us all the information."

At this point, the counsel for appellant approached the Bench and, out of the hearing of the jury requested a mistrial, and that the entire panel be stricken because of the juror's statement; that he was not requesting any other relief. The motion to quash the jury panel and grant the mistrial was denied.

With the record in this condition we cannot say that the trial court abused its discretion in denying appellant's motions. Only a portion of the voir dire examination is incorporated into the transcript on appeal and we are unable to ascertain from that portion whether other jurors were affected by this juror's statements or even if they were asked if they heard these remarks and what effect, if any, it would have on their ability to serve. Many circumstances occur during voir dire examination which at first blush might appear to be prejudicial. However, we believe that where, as here, trial counsel contends the entire panel of jurors has been tainted he has the burden of furnishing a reviewing court evidence that in the light of the statement made by the juror, his client's rights have been prejudiced, and in the absence of any such evidence, on appeal we must recognize the fact that the trial court is in a better position to observe what effect, if any, the juror's alleged prejudicial statement had on his or her fellow jurors.

We rule this Point against appellant.

Appellant's Second Point Relied On is that the trial court erred in overruling his motion for mistrial when the prosecutor, in his opening statement informed the jury that both co-defendants Eddie Lee Turner and Ladel Walton confessed to the crime at the time of their arrest when the prosecutor knew that Ladel Walton was not going to be a witness and his statements were therefore inadmissible.

In his opening statement the Assistant Circuit Attorney stated: "These robbers then fled. And at various later dates, one gentleman was arrested and confessed to the crime that's Mr. Turner implicating Mr. Browner and Mr. Walton. Subsequently Mr. Walton was arrested and he, too, admitted to the crime." At this juncture appellant's counsel objected, asked that the jury be instructed to disregard the statement and requested a mistrial. The court then inquired: "Mr. Moss, do you expect to enter this evidence as - -" The Assistant Circuit Attorney replied: "I didn't say the content of his confession; I just said that he admitted the crime." ²

The office of the opening statement is to advise the jury of the facts the state expects to prove, and to inform the defendant of the contemplated course of the prosecution and the facts relied upon in support thereof so as to fairly enable the defendant to meet the charge or charges preferred against him. As a general rule, it should be brief, and general rather than detailed. It should be confined to statements based on facts which can be proved and should not include facts which are plainly inadmissible. The scope and extent of the opening statement is largely within the discretion of the trial court, and the trial court must necessarily rely upon the good faith of counsel in making their opening statements to a jury as to material facts they intend to prove. The mere fact that no evidence is adduced as to some of the precise facts related to the jury in the opening statement is not sufficient to constitute error so prejudicial as to require the reversal of a conviction, except where it can be established, directly or by inference, that counsel making said statement had not intended to, or knew that he could not, produce testimony to support said statement when made. State v. Horn, 498 S.W.2d 771, 774(1) (Mo.1973); State v. Feger, 340 S.W.2d 716, 724-725(12-16) (Mo.1960). The question is whether counsel acted in good faith when he made the opening statement, and could reasonably believe that the evidence could and would come in during the trial. If, at the time of the opening statement counsel knows that he cannot produce the only witness who can furnish the particular facts in support of his opening statement, it is objectionable for him to indicate in opening statement that such evidence will be adduced at trial. State v. Stillman, 310 S.W.2d 886, 888(2) (Mo.1958). And if the evidence would be plainly inadmissible upon objection, it should not be included in the opening statement. All attorneys, including prosecuting attorneys, are presumed to have knowledge of the law, including the rules of evidence applicable to the trial of criminal cases, and even where the prosecutor is presumed to have acted in subjective good faith in making unprovable statements, where that faith is founded on deliberate disregard of the rules of evidence or ignorance thereof, it should not be concluded that he acted on reasonable grounds for supposing that he would be able to show the facts stated in his opening statement. State v. Hicks, 535 S.W.2d 308, 311-313 (Mo.App.1976).

As noted in Hicks, in many cases where this question has been raised the question has been whether the prosecutor has acted in good faith and with reasonable grounds for supposing that he will be able to show the facts stated; however, where improper statements result in actual and real prejudice to the defendant thereby depriving him of a fair and impartial trial, the prosecutor's good faith should be of slight concern in deciding the question of error. Where the prosecutor's...