State v. Callahan, WD

• Decision Date: 12 October 1982
• Docket Number: No. WD,WD
• Citation: 641 S.W.2d 186
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Sandra K. CALLAHAN, Defendant-Appellant. 33364.
• Court: Missouri Court of Appeals

Page 186

641 S.W.2d 186

STATE of Missouri, Plaintiff-Respondent, v. Sandra K. CALLAHAN, Defendant-Appellant.

No. WD 33364.

Missouri Court of Appeals,

Western District.

Oct. 12, 1982.

William M. Barvick, Jefferson City, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, William K. Haas, Asst. Atty. Gen., for plaintiff-respondent.

Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.

DIXON, Judge.

Defendant, jury convicted and sentenced to six months in jail on a charge of burning an automobile in violation of § 569.055 RSMo 1978, appeals.

The two related issues asserted are: definition by prosecutor of reasonable doubt during voir dire, and error in cross-examination of the defendant resulting in hearsay evidence being admitted directly bearing on the issue of guilt.

Defendant occupied the basement apartment of a house rented by complaining witness Roark. Roark lived in the upper levels of the house with his wife and children. There was a dispute regarding the terms of the living arrangement, Roark claiming that defendant was to pay $75 per month for rent, and defendant claiming she was assured she could live there free, but voluntarily paid $75 per month. A receipt for rent from December 2, 1980, to January 2, 1981, was in evidence. Defendant claimed that Roark made no requests for further rent until it became clear to him that defendant would not have sexual relations with him. She recited an instance when Roark entered her room in the middle of the night, jumped into the bed with defendant, and propositioned her. Roark's wife corroborated this story, having followed her husband into the basement apartment and found him on the bed with defendant. Further, Roark admitted asking "Mrs. Callahan if she would like to go out." When questioned whether she believed her husband's claim to have asked defendant out only one time, Mrs. Roark responded, "I don't know."

On the evening of January 18, 1981, Roark and a friend went to the house in which the Roarks and defendant lived. Roark proceeded to remove defendant's belongings from the apartment (defendant was absent) as he had warned her he would because she had not paid rent. The friend who accompanied Roark, named Dennis Wheat, was engaged in examining the furnace, which was located in the basement, while Roark removed defendant's belongings. Wheat testified that Roark had requested that Wheat accompany him for the purpose of examining the broken furnace. Wheat discovered that wires had been torn off the furnace, cutting off heat in the house.

After Roark had removed defendant's belongings, he and Wheat nailed the door shut and drove away from the house in Wheat's car. The two then observed defendant's car approaching the house from an opposite direction. Roark urged stopping the car so that the two could observe defendant's actions at the house. Accompanying defendant in her car was a friend named Joanna. The Wheat car pulled around and parked in a construction site about 60 to 65 feet from the house. Wheat testified that nothing obstructed their view of the house and driveway, and that the area was lit by streetlights. The time was approximately 10:30 p.m.

Roark and Wheat testified that they observed defendant, who was angry upon finding her belongings strewn about the yard, throw something through the basement window in an effort to gain access to the apartment. Defendant admitted breaking the window. Wheat testified that defendant "said a lot of ... cuss words." Both Roark and Wheat testified that defendant then walked over to Roark's 1964 Dodge, opened the front car door, threw something in the car, shut the door, and ran back to her car and drove away.

Upon arriving at the scene, Wheat and Roark discovered the car seat in flames and determined to contact the authorities (there was no phone in the house). They drove a few blocks and encountered a cruising police car. The fire department was called and extinguished the fire.

The police officer testified that defendant voluntarily went down to the police station later that night (12:30 a.m.), where she was advised of her Miranda rights. Defendant at first denied having any knowledge of the events at the Roark house that evening, then admitted being at the house at approximately 10:30. She denied setting fire to the car.

At trial defendant testified she went to the house with her friend Joanna at about 6:00 in the evening, gathered her clothes, broke the window in an attempt to get inside, and then left. Defendant denied telling the officer that she had been at the house around 10:30 p.m.

The prosecutor was allowed to comment during voir dire, over objection, as to the standard of reasonable doubt. It is error for the judge, the prosecutor, or a venireman to comment on the phrase "reasonable doubt." 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. Lasley, 583 S.W.2d 511, 514 (Mo. banc 1979); State v. Hurst, 612 S.W.2d 846, 852 (Mo.App.1981); State v. Van, 543 S.W.2d 827, 830 (Mo.App.1976); Notes on Use following MAI-CR 2.20. In the instant case, the prosecutor made the following comments to the venire panel:

In a criminal case the defendant, Mrs. Callahan, is presumed to be innocent. In other words, the fact that I have charged her with a crime means that I now have got to bring you some evidence to support that charge. I have to put up or shut up, in other words. Is there anyone on this panel who doesn't agree that this is the way that the process should work, that I have to prove that she is guilty, she does not have to prove that she is innocent; she starts out innocent--[OBJECTION]--* * * As the attorney for the people of Missouri, I have the burden of proving the defendant's guilt beyond a reasonable doubt. Does anyone on this panel disagree with the standard of reasonable doubt? Would any of you, for example, hold me to proving the defendant's guilt against another standard of proof; do you feel I should do something more than prove it beyond a reasonable doubt? [OBJECTION] * * * Can everyone on this panel see the distinction between proof beyond a reasonable doubt and proof beyond a shadow of a doubt; can you all see there is a difference?

Under settled Missouri law, such comments by the prosecutor were clearly improper. Such error is presumed to be prejudicial but may be harmless if it is harmless in the context of the case. State v. Van, supra. The remark in the instant case is analagous to the remark in Van. But because the facts of the instant case throw into doubt the credibility of the complaining witness's testimony, error in this case is more likely prejudicial than it was in Van. Standing alone, the prosecutor's remarks would present a very close issue; but the error must be considered with an issue of fundamental error raised by defendant.

Defendant complains of the trial court action in allowing the prosecution on cross-examination of the defendant to put before the jury the hearsay statement of the defendant's companion, Joanna Brown. During his cross-examination, the prosecutor established that Joanna Brown was a friend of defendant and had accompanied her to the house the evening of the fire. The prosecutor then asked defendant, "[d]o you know of any reason why she would say it was 10:30 in the evening?" "She," of course, was Joanna Brown. Ms. Brown was out of the state at the time of trial. At bench conference, the prosecutor informed the judge that he had a signed statement from Joanna Brown to the effect that defendant was at the scene around 10:30 in the evening. The prosecutor's question thus inserted into the proceeding the assertion by the unavailable declarant that defendant had been at the house at 10:30, a fact in accord with the testimony of Roark and Wheat and the police officer, but denied by defendant.

In the briefing in this court, the defendant asserts that cross-examination of the defendant introduced hearsay evidence to the jury and denied her her right to confront witnesses as guaranteed by the sixth amendment to the United States Constitution and Mo. Const. Art. I, § 18, subparagraph a. The objection to the question was overruled by the trial court, but the defendant did not raise the issue in the motion for new trial, and, as the state correctly urges, the issue must be considered under Rule 29.12(b). The issue arises in the following way.

Defendant argues that the trial court committed error in allowing the question because it assumed as true facts that were not in evidence and cites State v. Selle, 367 S.W.2d 522 (Mo.1963), and Hawley v. Merritt 452 S.W.2d 604 (Mo.App.1970), in support. In Selle, the defendant was accused of assault with malice aforethought and beating victim with fists with force likely to produce death or great bodily harm with felonious intent to ravish and rape. In his cross-examination of Selle's character witnesses, the prosecutor asked a series of hypothetical questions, each of which improperly assumed facts and called for an opinion. The court held that the questions constituted prejudicial error and remanded for new trial even though the trial court had sustained defendant's objection to the question. The court observed that "prosecuting officials should not be permitted in this fashion to convey to the jury by innuendo and insinuation purported information which they are forbidden to impart directly." State v. Selle, 367 S.W.2d at 530.

The state contends that any error caused by the prosecutor's question was cured by MAI-CR 2d 2.02 and the fact that appellant responded negatively to the question. In State v. Butler, 549 S.W.2d 578 (Mo.App.1977), the prosecutor asked the defendant's grandmother whether she was aware that the grandson bought a car the day after the robbery, whether she had seen him drive it, and whether she had seen it parked in front of her house. None of the facts on which the questions were based were...