State v. Crockett

• Decision Date: 09 October 1967
• Docket Number: 52921,No. 2,Nos. 52320,s. 52320,2
• Citation: 419 S.W.2d 22
• Parties: STATE of Missouri, Respondent, v. Nathaniel CROCKETT and Bobby Dean Edwards, Appellants
• Court: Missouri Supreme Court

Page 22

419 S.W.2d 22

STATE of Missouri, Respondent, v. Nathaniel CROCKETT and Bobby Dean Edwards, Appellants.

Nos. 52320, 52921.

Supreme Court of Missouri, Division No. 2.

Oct. 9, 1967 Modified on Court's Own Motion Oct. 26, 1967.

Charles T. Herrmann, St. Louis, James A. Bell, St. Louis, for appellants.

Norman H. Anderson, Atty. Gen., Jefferson City, James T. O'Brien, Sp. Asst. Atty. Gen., St. Louis, for respondent.

STOCKARD, Commissioner.

Deendants Bobby Dean Edwards and Nathaniel Crockett were jointly charged and tried for burglary second degree and stealing (each being charged with a previous felony conviction), and after the jury found both defendants guilty the court sentenced each to imprisonment for ten years for the burglary and five years for stealing, the sentences to run concurrently. Each defendant filed a notice of appeal, and the two appeals were assigned the same number (Case No. 52,320) by this court and have been treated as consolidated. Subsequently, defendant Edwards filed a motion pursuant to the provisions of Supreme Court Rule 27.26, V.A.M.R., in effect prior to September 1, 1967, which motion was overruled by the trial court without an evidentiary hearing. Defendant appealed, and that appeal (Case No. 52,921) was ordered consolidated with Case No. 52,320.

We shall first consider the appeal of defendant Crockett. In his brief, filed by employed counsel of his own selection, four assignments of error are made. Other allegations in his motion for new trial which have not been briefed are deemed waived or abandoned, Supreme Court Rule 28.02, except those which relate to the sufficiency of the information, verdict, judgment and sentence.

Defendant Crockett contends (but we note that no such contention is made by defendant Edwards) that the trial court erred in 'not entering a directed verdict and judgment of acquittal' because there was insufficient evidence to sustain the judgment.

The evidence, viewed most favorably to the State, authorized the jury to find the facts as herein stated. About six o'clock of the evening of January 14, 1966, Mr. Robert Weeden, Sr., checked the doors, a transom over the back door, and the windows on the first floor of a store building located at 5588 Easton in the City of St. Louis. All were closed and locked. The first floor had recently been vacated by a tenant, but located therein there was a cigarette machine containing cigarettes and a 'little candy and chewing gum' machine. Mr. Weeden then went to his living quarters which were located on the second floor. A few minutes after nine o'clock that evening he heard a noise which sounded like the breaking of glass. He went to a second floor window facing on the back yard and saw tw men pull or drag a cigarette machine out of the rear door and into the yard. He told his wife to call the police, and he continued to watch the two men. When told by his wife that the police had arrived Mr. Weeden ran down the steps and to the rear of the building where he met two police officers. When the officers approached and arrested the defendants, the machine was lying on its side on the ground. The defendants were bending over the cigarette machine, and there was a screwdriver 'hanging on the lock on the machine.' Although Mr. Weeden stated that he could not identify the defendants as the two men he observed from the second floor window, he said the two he observed from the window were the same two arrested by the police. He determined this by reason of their 'long coats and dark hats,' and because his 'eyes were only off of them not over two and a half or three minutes and they were in the same spot, in the same position.' Mr. Weeden examined the building and found that the transom over the rear door was broken and the wire mesh covering i had been pulled off, and that a bar on the inside of the door which served as a lock was 'pulled out' and the door was open. The cigarette machine had not been opened when the police arrested the defendants, and when searched no cigarettes or 'change' were found on them. However, a side of the machine showed evidence of having been 'pried.'

Defendant Crockett did not testify, but defendant Edwards elected to do so. He stated that he and Crockett had been in a nearby tavern, and that after they left about 9:15 o'clock of the evening of January 14, 1966, they walked into the back yard of the building located at 5588 Easton, and saw two boys running and also saw the cigarette machine back of the building. While they were bent over looking at the cigarette machine they were arrested.

This evidence clearly authorized a finding by the jury of all elements of burglary second degree and stealing.

Defendant Crockett's next point in his brief is that the trial court erred in giving Instruction 12 because it 'is an instruction on circumstantial evidence, and * * * it is improper to give an instruction on circumstantial evidence when there is direct evidence against the defendant, * * *.'

The transcript shows that the following occurred at the conclusion of all the evidence:

'The Court: Let the record show that counsel for defendants have had copies of the court's instructins during the noon recess of an hour and twenty minutes.

'Mr. Bell (Counsel for defendant Crockett): May the record further show that on behalf of the defendant Nathaniel Crockett I object to each and every instruction as given by the court and to each verdict form; and let the record further show that defendant Crockett hereby requests that the Court should give an instruction on circumstantial evidence.'

The court indicated that it was 'not too sure' that an instruction on circumstantial evidence was required, but 'perhaps it would be appropriate' and that by renumbering the pages he could and would give it. Under these circumstances defendant Crockett is not entitled to complain on appeal that it was error for the trial court to give an instruction on circumstantial evidence. State v. Livers, Mo., 340 S.W.2d 21; State v. Swiney, Mo., 296 S.W.2d 112.

The next point presented by defendant Crockett is that the trial court 'unduly limited defendant on voir dire examination when defense counsel attempted to ask the panel the following question: 'Whether or not on suspicious circumstances above (sic) they would convict.' The court reused to allow counsel for defendant (to) preface the question or to ask same which is contrary to law.'

Defendant Crockett's counsel asked the jury panel several questions of a general nature. The last question was whether the jury panel members understood that if the State failed to prove the guilt of the defendant beyond a reasonable doubt it would be the duty of the jury to find the defendant not guilty. He then said this: 'Of course, under Missouri law or in many lawsuits there may arise what we call suspicious circumstances, and of course suspicious circumstances of themselves, without any other evidence, are not sufficient under the law to convict a man.' Counsel for the State then objected to 'talking about what the law is' and the court sustained the objection, and commented: 'In many cases we tell juries that crime can be proved by circumstantial evidence or by direct evidence. It is for the jury to determine whether the circumstantial evidence is sufficient. It cannot be determined before a trial starts by calling the circumstantial evidence suspicious circumstances. All of the evidence has to be weighed later, but it is not proper for counsel to say that crime cannot be proved by circumstances, and the jury must disregard Mr. Bell's statement.' After some discussion about interruptions, counsel for defendant Crockett entered an objection 'to the statement by the court and the ruling of the Court where it stated that suspicious circumstances of themselves were sufficient to prove a person guilty of a crime.' There then followed further discussion about counsel and the court interrupting each other, and counsel then stated that he had no further questions.

It is not clear that counsel intended or attempted to ask the question set out above in his point, or that such a question would have been proper. The trial court obviously was of the impression that counsel was attempting to classify what it would consider to be 'circumstantial evidence' as only 'suspicious circumstances,' and then impress upon the jury panel that such evidence would not, as a matter of law, be sufficient to support a finding of guilt. It also appears from the form of the question set out in the point that counsel was attempting to obtain a commitment in advance that the jury panel members would not convict the defendant in certain circumstances.

No fixed and inflexible rule may be laid down which may in all cases determine the extent to which counsel may go in the examination of jurors upon voir dire. Such examination is conducted under the supervision of the trial court, and in such matters the court necessarily has considerable discretion. State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688. However, counsel may not on voir dire ask the individual jurors to commit themselves in a particular set of circumstances. State v. Wolfe, Mo., 343 S.W.2d 10, certiorari denied 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed. 1246 and 368 U.S. 907, 82 S.Ct. 188, 7 L.Ed.2d 101. As stated in State v. Heickert, Mo., 217 S.W.2d 561, 562, "[C]ounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial." Also, the trial court was entitled to take such action as necessary to prevent an implication that competent circumstantial evidence should be classified as nothing more than "suspicious circumstances."

There was no abuse of discretion by the action of the trial court in its control of the voir dire examination, and no prejudicial error is shown.

The final point of defendant Crockett is that the trial court 'exhibited...