State v. Carter, 38152

• Decision Date: 04 October 1977
• Docket Number: No. 38152,38152
• Citation: State v. Carter, 557 S.W.2d 47 (Mo. App. 1977)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Excell CARTER, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 47

557 S.W.2d 47

STATE of Missouri, Plaintiff-Respondent, v. Excell CARTER, Defendant-Appellant.

No. 38152.

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

Oct. 4, 1977.

Robert C. Babione, Public Defender, Robert G. O'Blennis, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Gregory D. Hoffmann, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

REINHARD, Judge.

The defendant appeals from a conviction of forcible rape and robbery in the first degree. Defendant was sentenced by the court under the Second Offender Act to thirty years imprisonment on each count, the terms to run concurrently.

Because defendant does not challenge the sufficiency of the evidence, we will discuss only those facts relevant to the specific errors alleged. On February 28, 1975, two men forced their way into the apartment of the prosecutrix. Threatening her with a knife, the men raped her, and stole her watch and money belonging to her brother with whom she shared an apartment.

Defendant's first point is that the court erred in denying a motion for mistrial when the defendant was handcuffed by the sheriff in front of the jury during a disturbance in the courtroom. Defendant asserts that such action clearly prejudiced the jury by showing that the court believed that the defendant had a propensity for violent behavior.

While the prosecutrix was testifying, there apparently was a disturbance in the spectator section of the courtroom. The record reveals the following exchange between the trial judge and defense counsel outside the hearing of the jury:

"MR. O'BLENNIS: Your Honor, I would like to object to the sheriff having placed handcuffs on Excell Carter. I don't think it was necessary; it wasn't any display.

THE COURT: There was a disturbance in the rear of the courtroom, Counsel, that you were not aware of, and it was a necessity the second sheriff assist the first sheriff.

MR. O'BLENNIS: Was it necessary?

THE COURT: It was necessary at that time, under those circumstances, it was necessary that the second sheriff go assist the first sheriff.

MR. O'BLENNIS: Your Honor, I would like to ask for a mistrial at this time.

THE COURT: That will be denied."

This dialogue constitutes the entire record of the incident. Defendant's counsel did not request that the court admonish the jury to disregard the handcuffing.

A defendant has a right to appear before the jury free of shackles. State v. Kirksey, 528 S.W.2d 536 (Mo.App.1975). However, being handcuffed in the presence of the jury is not per se prejudicial and does not always cause reversible error.

In State v. Borman, 529 S.W.2d 192, 194 (Mo.App.1975), the court said:

"The trial judge is vested with a considerable, but not unlimited, discretion in determining the propriety of permitting physical restraints after weighing the relevant factors, which include the presence or absence of disruptive conduct on the part of the defendant prior to or during the trial, the presence or absence of threats of such misconduct, the trial atmosphere, the likelihood of an attempt to escape, the age and physical attributes of the accused, the nature of the offense on trial, the size and mood of the audience and the adequacy of alternative remedies. It has rightly been said that the propriety of physical restraints depends upon the particular facts of each case."

The record provides few details about the handcuffing. Specifically, the record fails to show when the defendant was handcuffed, whether the jury could observe or was attracted to the handcuffing, how long defendant was handcuffed, or whether defendant was still handcuffed when the defense attorney was making his objection at the bench.

The defendant failed to make a record showing that the court's ruling was unreasonable or that defendant was prejudiced. His claim of prejudice does not prove itself and is only an "unsupported assumption." ¹ State v. Kirksey, supra; State v. Kirk, 510 S.W.2d 196, 201 (Mo.App.1974); State v. Boone, 355 Mo. 550, 196 S.W.2d 794, 796, 797 (1946), cert. den. 334 U.S. 823, 68 S.Ct. 1078, 92 L.Ed. 1752. The record merely shows that there was a disturbance in the courtroom and that defendant was handcuffed. It appears there were only two officers in the courtroom, their assistance in controlling the commotion was required, and there was no other available officer to guard the defendant during the disorder. The trial judge was aware of the indictment which alleged that the defendant was a second offender and had served in the penitentiary. He knew the defendant was presently being tried for the offenses of forcible rape and robbery in the first degree.

In his brief defendant also contends that the trial court erred in failing to give a "cautionary" instruction. Defendant, however, neglected to request such an instruction. Failure to request an instruction bars review unless failure to instruct was plain error. Cummings v. United States, 398 F.2d 377 (8th Cir. 1968); State v. Jenkins, 494 S.W.2d 14 (Mo.1973); State v. Walker, 484 S.W.2d 284 (Mo.1972). We find no plain error here.

Defendant's second point on appeal is that the court erred in failing to strike the jury panel after the prosecutor used the term "alibi witness" in his voir dire of the panel. Defendant argues that the use of the word "alibi" disparaged the defendant's alibi defense and biased the jury by casting doubt on the credibility of defendant's eventual witness.

During his voir dire examination of the jury panel, the prosecutor made the following statement:

"Does everybody understand this case I can't tell you anything about the case except that it is probably going to be two conflicting opinions, two conflicting testimonies. In other words, there's going to be testimony that the defendant committed the crime; and there will probably be an alibi witness ."

In response to a question from the court, defense counsel stated his intention to request an alibi instruction. The trial court then denied the request to strike the jury panel and instructed the jury to disregard the prosecutor's statement. Defendant later put on an alibi witness and requested an alibi instruction.

The defendant makes no express showing of prejudice but relies on the contention that the prosecutor's statement was prejudicial per se.

This contention is wholly without merit. To be sure, an instruction or comment by the prosecutor which tends to disparage an alibi witness is erroneous. State v. Smith, 358 Mo. 1, 212 S.W.2d 787, 789 (1948). Such is not the case here. The word "alibi" is not shackled with the oppressively negative connotation placed on it by defendant. Although the term "alibi" does not appear in either of the two MAI instructions concerning the defense, use of the word in an instruction has been found to be neither prejudicial to defendant nor disparaging to his defense. State v. Coleman, 441 S.W.2d 46, 52 (Mo.1969); State v. Martin, 515 S.W.2d 802, 805 (Mo.App.1974). Clearly, if the use of the word in an instruction is not per se prejudicial, then neither is its non-disparaging use by the prosecutor. The trial court has broad discretion in the control of the voir dire examination of the jury and the appellate court will interfere only when the record shows a manifest abuse of that discretion. State v. Mudgett, 531 S.W.2d 275, 279 (Mo. banc 1975). We find no such abuse.

Furthermore, the trial judge sustained the defendant's objection and instructed the jury to disregard the prosecutor's statement. Under such...