State v. Carter, 61479
| Decision Date | 09 February 1993 |
| Docket Number | No. 61479,61479 |
| Citation | 847 S.W.2d 941 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Timothy CARTER, Defendant-Appellant. |
Susan K. Eckles, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
A jury convicted defendant Timothy Carter of burglary in the first degree, § 569.160, RSMo 1986, and the trial court sentenced him as a prior and persistent offender to ten years imprisonment. Defendant directly appeals this conviction. We affirm.
In March of 1991, Toshelle Kinsey went to stay with Robert Workes and Sharon Barton, her cousin. Toshelle had been having problems with her boyfriend, defendant Timothy Carter.
At approximately 5:15 on the morning of March 4, 1991, Toshelle was sleeping with her infant daughter, Brittany, on a couch in the front room. Toshelle was awakened by a voice at the front door and then heard someone kick the door. She ran into Robert and Sharon's bedroom to wake them.
While looking out the front door window, Robert saw four people walking from a small dark automobile toward his house. They came to the door and asked for Toshelle. Defendant began kicking the door. At this same time, Toshelle took Brittany into the kitchen and hid in a closet.
Robert held the door and told defendant to stop kicking. Defendant stated that he would pay for the damage. Robert responded that if he stopped kicking he would not have to pay for the damage. Defendant retorted, "If you don't move away from the door, I'll blow your fucking head off." Robert moved aside, and defendant kicked in the door.
Defendant entered the house with his three companions: Al Brown, Cedric Curry, and Toshelle's brother, DeAndre Gray. The quartet walked past Robert who then left to call the police from his brother's house next door. Defendant loudly called out for Toshelle and searched through the three main rooms. Defendant finally discovered Toshelle in the kitchen closet.
Defendant pulled Toshelle out of the closet. He grabbed her around the waist and walked her out the front door while she protested that she did not want to leave. Toshelle tried to grab Sharon's hand as defendant carried her down the front steps. Defendant took Toshelle to the car without her wearing a coat or shoes.
Defendant put Toshelle in the back seat of the car and drove off. After circling the block, defendant drove back to the house. Toshelle sent DeAndre inside to get her baby. DeAndre returned with Brittany and all four of the boys, Toshelle and Brittany drove off in the car.
When the police arrived on the scene, Sharon and Robert reported what had transpired. They gave descriptions of defendant and his companions, as well as defendant's car and license plate number. This information was relayed to a dispatcher who broadcast an all points bulletin to patrolling police vehicles.
About ten minutes later, police officer Alan Barton, who heard the broadcast, saw defendant's vehicle pass him in the opposite direction. Police officer Barton made a U-turn, pulled the vehicle over and radioed for backup. Once assisting officers arrived and the occupants exited the vehicle, Toshelle brought her baby back to the patrol car. Appearing upset, she told the officer that these individuals had dragged her and her child out of the house. Because neither were dressed warmly, the officer placed them in the patrol car. The four were taken into custody.
On April 4, 1991, defendant was indicted for two counts of false imprisonment, § 565.130, RSMo 1986, as well as, one count of first degree burglary. On December 12, 1991, a jury acquitted defendant of the two counts of false imprisonment and returned a guilty verdict on the first degree burglary count. The court sentenced defendant to ten years imprisonment in the Missouri Department of Corrections as a prior and persistent offender on January 24, 1992. After the court denied defendant's motion for a new trial, a timely notice of appeal was filed. Defendant raises five points on appeal.
Defendant argues, in his first point, that the trial court erred by permitting the prosecutor to define "presumption of innocence" during voir dire. According to defendant, the prosecutor misstated the law of "presumption of innocence," improperly shifted the burden of proof to defendant and usurped the function of the court.
While counsel should generally refrain from informing the jury about the law, counsel is not totally prohibited from mentioning the law. State v. Corpier, 793 S.W.2d 430, 444 (Mo.App.1990). Counsel may discuss the law without defining it and without stating any law applicable to the case which is not contained in the instructions. Id. This court will not intervene unless the trial court abuses its discretion by permitting argument calculated either to mislead, prejudice or conflict with the instructions. Id.
Defendant contends that the following portion of the state's voir dire constituted a definition rather than a discussion of the presumption of innocence.
[T]he defendant, just like all defendants who sat here, is at this point in the proceeding presumed to be innocent. I'm sure you've all heard that idea. Now, that doesn't mean you have to find him innocent. What that means is at this point you start out with the assumption that he is, and you listen to what the evidence shows you.... In other words, there are some countries where as soon as a person is accused, they're assumed to be guilty, they've got to get theirselves [sic] out of trouble.
Defendant submits that this materially prejudiced his position and, in effect, shifted the burden of proof by implying that defendant was required to prove his innocence.
Reviewing this specific language in the context of the conversation in which the remarks were made, we find that the trial court did not abuse its discretion in allowing this discussion of the law. These remarks were made during the prosecutor's discussion with the venire panel about whether they could apply an instruction that conflicts with their personal beliefs about what the law should be. One particular venireperson had a difficult time grasping this distinction. So, the prosecutor offered the above as an illustration of what he meant.
The prosecutor did not attempt to define "presumption of innocence." He merely discussed the presumption of innocence as an example of how an instruction could defy a juror, particularly a foreigner, about what the law was. Nor was this statement calculated to mislead the panel. The prosecutor was trying to determine whether the venire members could commit themselves to follow the law before they knew the law.
The prosecutor did not imply that the presumption of innocence applied only at a certain point and did not shift the burden of proof to defendant. The language used accurately stated the law applicable to the case and was consistent with the instructions. Defendant's depiction of the remarks as burden shifting or prejudicial does not make them so. These statements were not calculated to prejudice the defendant. The trial court did not err in allowing the prosecutor's discussion of the presumption of innocence.
Defendant's second point states that the trial court erred by allowing the prosecutor to argue the difference between first and second degree burglary during his opening statement. Defendant asserts that the prosecutor's arguments improperly usurped the functions of both the court and jury by defining and applying the law to the facts of the case and permitting the jury to infer that defendant's guilt was already established.
The scope and manner of opening statement is largely within the trial court's discretion. State v. Brooks, 618 S.W.2d 22, 24 (Mo. banc 1981). The purpose of opening statement is to advise the jury of the nature and facts of the case and to outline the anticipated proof and the significance of the evidence to be presented. State v. Harris, 731 S.W.2d 846, 849 (Mo.App.1987).
The specific remarks about which defendant complains occurred during the following portion of the prosecutor's opening statement:
MR. TYSON (Prosecutor): The evidence will show first, that unlawful entrance was made into the residence of Robert Workes and Sharon Barton. That that unlawful entry was made for the purpose of falsely imprisoning Toshelle Kinsey; and that while this was happening, that makes it a Burglary First rather than a Burglary Second--
MS. CARADONNA (Defense Attorney): Your Honor, I'll object to argument.
Defendant contends that this constituted an impermissible defining of the law to the jury. Defendant urges that he was materially prejudiced because the prosecutor defined first degree burglary and explained the difference from second degree burglary. He further argues that the prosecutor's applying the facts to...
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