State v. Clifton

• Decision Date: 22 February 1977
• Docket Number: No. 37022,37022
• Citation: 549 S.W.2d 891
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Elbert CLIFTON, Defendant-Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 891

549 S.W.2d 891

STATE of Missouri, Plaintiff-Respondent, v. Elbert CLIFTON, Defendant-Appellant.

No. 37022.

Missouri Court of Appeals, St. Louis District.

Feb. 22, 1977.

Motion for Rehearing or Transfer Denied April 15, 1977.

Application to Transfer May 10, 1977.

Robert C. Babione, Public Defender, Cornelius T. Lane, Jr., Asst. Public Defender, St. Louis, for defendant-appellant.

Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

PER CURIAM.

Appellant, Elbert Clifton, was found guilty by a jury in the Circuit Court of the City of St. Louis of Murder in the Second Degree, § 559.020 RSMo. 1969, but the jury could not agree on the sentence, and the trial court sentenced him to fifty years in the custody of the Missouri Department of Corrections. §§ 559.030 and 550.090(3) RSMo. 1969. He appeals.

No challenge is made to the sufficiency of the evidence to support the jury verdict. Because of the refusal of the trial court to read to the jury panel, prior to the commencement of the voir dire examination, MAI-CR 1.02 we are compelled to reverse the defendant's conviction and remand the cause for a new trial.

Trial of this cause commenced in the Circuit Court of the City of St. Louis on March 24, 1975. Prior to the voir dire examination of the jury panel the trial judge addressed the panel with his version of what he deemed appropriate in lieu of MAI-CR 1.02. The defendant in his Motion for New Trial raised the point that "The Court committed prejudicial error by failing to read to the jury panel instruction number MAI-CR 1.02," and during the course of preparing the transcript on appeal, an insert was made which reads: "The proceedings typed starting on the bottom half of pg. 46, Re: Judge giving Ins. # 1.02, and ending on middle of page 46B were had at this time." An excerpt of the assistant circuit attorney's voir dire examination follows this and then, at page 42 of the transcript, the following appears:

"THE COURT: It is to be noted in the Defendant's Motion for New Trial that as ground number one, 'The Court committed prejudicial error in failing to read to the jury panel Instruction Number M.A.I. CR 1.02.' Defense counsel is correct. This Court does not read 1.02, but makes the following remarks to the jury in each and every case which contains these same substances as 1.02. The remarks that the Court gave in lieu of 1.02 is as follows:" (Emphasis supplied).

The remarks made in lieu of MAI-CR 1.02 are then reported in the transcript.

We need not extend the body of this opinion with the trial court's remarks. We have discerned, however, that there were several material and prejudicial omissions in the remarks of the trial court. They may be compared line by line in the appendix. We have carefully compared the oral remarks given by the trial court and MAI-CR 1.02 and conclude that a reversal and remand is required.

The State concedes that MAI-CR 1.02 is an instruction required to be given by the trial court in all criminal cases and that the omission or failure to read the instruction to the jury panel prior to voir dire examination constitutes error. Nevertheless, the State argues: 1) that the appellant has not preserved this point for review because he has not set forth in detail and with particularity the specific grounds of error in his Motion for New Trial and 2) that although the failure to read MAI-CR 1.02 constitutes error, its prejudicial effect must be judicially determined, Rule 20.02(e), and that the defendant was not prejudiced because the prefatory remarks of the trial court adequately contained the substance of the matters covered in MAI-CR 1.02.

We disagree. The Motion for New Trial pointed out that this action of the trial court constituted "prejudicial error." In civil cases a deviation from an MAI pattern instruction which did not require modification constitutes error and the burden is on the proponent of the instruction so modified to establish the absence of prejudice. Brown v. St. Louis Public Service Company, 421 S.W.2d 255, 259(3) (Mo. banc 1967); Ogle v. Terminal R. R. Ass'n of St. Louis, 534 S.W.2d 809, 812 (Mo.App.1976). In Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317, 321(4) (Mo. banc 1975) the failure to read pattern instruction MAI No. 2.02 "Facts Not Assumed" immediately before the form of verdict instruction, was held to be error and presumptively prejudicial because it violated the Notes on Use to that instruction. In Chapman v. Bradley, 478 S.W.2d 873(1) (Mo.App.1972) the omission from MAI No. 2.01 of eleven words in paragraph 8 of the instruction referring to the right of the trial jury to consider the interest of the witness in the outcome of the suit, and the relation of the witness to the parties to the suit in considering the weight and value of the testimony of any witness was held to be "presumptively prejudicial unless it is made perfectly clear to us no prejudice could have resulted." McCory v. Knowles, 478 S.W.2d 682, 685(5) (Mo.App.1972) also reached the same conclusion with respect to certain other omissions from MAI No. 2.01.

In civil cases a deviation from a pattern instruction constitutes error and the burden is on the proponent to establish the absence of prejudice. The failure of the trial court to read to the jury the mandatory instruction MAI-CR 1.02 is presumptively prejudicial.

In reaching this conclusion we are not unmindful of the decisions cited by the State in support of its argument that not every deviation from an approved pattern instruction constitutes prejudicial error and that the cases decided since the effective date of MAI-CR have announced the general proposition that instructions given by a trial court which deviate from the pattern instructions but which nonetheless adequately cover the substance of the matters contained in the approved instruction do not constitute prejudicial error. The State argues that the test to be applied is whether the erroneous instruction misled, confused or affected the jury to the defendant's prejudice. In support of this argument the State cites State v. Billingsley, 534 S.W.2d 484 (Mo.App.1975), State v. Gaye, 532 S.W.2d 783 (Mo.App.1975), State v. Vernor, 522 S.W.2d 312 (Mo.App.1975), State v. Knox, 529 S.W.2d 455 (Mo.App.1975) and State v. Witnah, 493 S.W.2d 32 (Mo.App.1973).

Of the cases cited by the State only three involve an Instruction required by the provisions of Rule 20.02(a) to be read at any specific point in the instruction phase of the case. These are State v. Vernor, supra, State v. Gaye, supra, and State v. Billingsley, supra.

Both Vernor and Gaye held that the failure of the trial court to read to the jury MAI-CR 1.08 did not constitute prejudicial error where the jury was instructed in substantially the same terms as the approved pattern instruction. In Vernor the basis for this finding was that prior to the adoption of MAI-CR there was case law which held that where the trial court instructed the jury in all cases of felony, except in capital cases, at each recess or adjournment during the trial in substantial compliance with § 546.230 RSMo. 1969, V.A.M.S. the instruction was tolerated. The Court in Vernor recognized that the requirements of MAI-CR were more stringent than the former practice; nevertheless, toleration of the former practice was the basis for that opinion.

Gaye merely followed Vernor and cited it for authority in arriving at its decision that failure to follow the Notes on Use in MAI-CR was not prejudicial to the rights of the defendant.

State v. Billingsley, supra, involved whether the failure of the trial court to instruct in compliance with the Notes on Use applicable to MAI-CR 2.03 and 2.80 specifying the numerical order in which these instructions are to be given by the trial court in submitting the case to the jury. The Notes on Use specify that MAI-CR 2.03 "General Instructions" is to be read to the jury as the first of the instructions given at the close of the case and immediately prior to the argument of counsel. The Notes on Use for MAI-CR 2.80 "Verdict Mechanics: Unanimity Required" specify that this pattern instruction is to be read to the jury in every case immediately prior to the last instruction, MAI-CR 2.68 Argument of Counsel. The trial court in Billingsley disregarded these directions and instead read MAI-CR 2.03 as the number seven instruction rather than as the number three instruction and MAI-CR 2.80 as the number eight instruction rather than the number nine instruction as they should have been. Al...