State v. Croka, WD

• Decision Date: 25 January 1983
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Estus Calvin CROKA, Sr., Appellant. 33443.
• Court: Missouri Court of Appeals

Page 389

646 S.W.2d 389

STATE of Missouri, Respondent, v. Estus Calvin CROKA, Sr., Appellant.

No. WD 33443.

Missouri Court of Appeals,

Western District.

Jan. 25, 1983.

Donald G. Stouffer, Edward P. Cleary, Marshall, for appellant.

Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, C.J., and CLARK and MANFORD, JJ.

CLARK, Judge.

Estus Calvin Croka, Sr. was jury tried and convicted of the offense of second degree murder. He appeals the judgment of conviction and sentence of twenty-five years. Reversed and remanded.

Appellant raises six points of error among which, two points are discussed in this opinion. The first, involving comment by the prosecutor during voir dire as to testimony the defendant would give, requires that the conviction be reversed. Although the first point suffices to decide the case, a second point raising a question as to participation by the prosecuting attorney after he had been disqualified, requires discussion because of implications affecting retrial. The other points Croka presents will not be considered because it is assumed their factual origin will not recur.

Only a brief statement of the evidence is necessary to place in perspective the two points of error considered. That evidence disclosed one Raymond Hemmes was killed on April 7, 1979 by a single shot from a rifle while seated in a chair at his home. Present at the time were Croka, his then wife Betty Jean Miller and the latter's daughter by a former marriage, Joann Vanderen. ¹ The previous month, March, 1979, Betty had commenced divorce proceedings against Croka and had left the family home. According to Betty and her daughter, Croka entered the Hemmes house at about 9:00 p.m. on the night of the crime and fired the shot which killed Hemmes.

The first point of error contends that a motion for mistrial should have been granted when the prosecuting attorney stated to the jury panel during voir dire that they would be obliged to decide the facts of the case based on conflicting testimony from the state's witnesses on one side and the defendant on the other. The pertinent remarks were as follows:

"Just as the Court decides which law is applicable or which laws are applicable to this case, and will instruct you on that law, you people are the judges of the evidence, and must determine the facts from the evidence. * * *

Does everybody agree that those people who serve on the final jury must decide what happened at Mr. Hemmes's house on the night of April 7th, 1979? That is your job. Now, in doing that you will hear testimony from several witnesses. I think there will be three, maybe four, testify for the State, and I anticipate the defendant will testify. And I anticipate, as I always do in a criminal trial, that the testimony from each side will conflict. In other words, one side may say this is what happened, and the other side will say it's a bit different." (Emphasis added).

The initial motion by the defendant for a mistrial was overruled. The motion was renewed, with citation of authority, and at this point, the court reserved ruling and directed the trial to proceed. When the motion was taken up for ruling after the verdict had been returned, the court acknowledged "that there is definitely error in the case" but the motion was overruled on the ground the defendant had suffered no prejudice.

In State v. Lindsey, 578 S.W.2d 903 (Mo. banc 1979), the court observed that comment prohibited by Article I, § 19 of the Missouri Constitution is not limited to statements regarding the failure of a defendant to testify, but includes the use of language having the effect of compelling a defendant to testify. The defendant is not to be goaded into giving evidence because the jury has been challenged at the outset to observe whether or not the defendant takes the stand. Such comments influence the jury so as to deny the defendant a fair trial and can never be harmless.

In the present case, the prosecutor's statement was far more pernicious than the comment condemned in Lindsey where the prosecutor stated during voir dire that the defendant didn't have to take the stand if he didn't want to. Here, the prosecutor forecast to the jury that its fact finding test would entail a decision as to which version of the events would be accepted, the account related by the state's witnesses or the testimony as given by the defendant. Quite obviously, this cast upon the defendant an unpalatable choice. A decision to take the stand would confirm the prosecutor's description to the jury of how the evidence would unfold but would subject Croka to the hazards of cross-examination and any unfavorable impressions which Croka's testimony and demeanor might unwittingly convey. Moreover, were Croka to testify, that circumstance alone would confirm the implicit but erroneous suggestion in the prosecutor's statement that the jury should decide Croka's fate based on belief or disbelief of his testimony.

On the other hand, the exercise by Croka of his constitutional immunity from giving evidence in his own prosecution would raise serious unfavorable implications. Having been informed by the prosecutor in advance to anticipate hearing Croka's own version of the events giving rise to the criminal charge, the jury would naturally be inclined to speculate that failure of Croka to testify was the result of some turn of events in presentation of the state's evidence. Regardless of any curative instruction, the jury would assume Croka had at first intended to testify and he would suffer the adverse effect of denying the jury his own explanation to counter the state's case.

In defense of the prosecutor's remarks, the state has contended there was never any doubt Croka would testify and that the nature and strength of the state's case was such that Croka was obligated to testify if he expected to follow any reasonable mode of defense. The trial judge apparently accepted the premise that the prosecutor's comment was permissible if the circumstances warranted an expectation by the state that Croka would testify. That view is confirmed by the comment of the court made in response to the defendant's objection: "I will reserve that ruling until such time as (Croka) does not take the stand" (Emphasis added). The trial judge failed to perceive the dilemma, above noted, which the prosecutor's remarks posed for the defense.

It is significant to note here that the jury had not been addressed by defense counsel at the point when the objection was lodged. The prosecutor's remarks were therefore not responsive nor retaliatory and this case is distinguishable from those in which defense counsel may have informed the jury during voir dire or in opening statement that the accused would testify.

In this case, Croka did ultimately testify, but that fact is immaterial to the point of error. The statement to the jury is to be assessed by its effect at the time made. The effect was to coerce Croka in the later choice he was entitled to make regarding presentation of the defense, a decision rightly deferable until the state had closed its presentation. The error could not be redeemed by the fact that Croka did testify. The point is directly ruled by State v. Lindsey and requires reversal of the conviction.

The state alternatively contends that if the prosecutor's voir dire comments were improper, any error was waived when defense counsel failed to make a prompt objection immediately thereafter. The record does indicate that the prosecutor continued his voir dire after the remarks quoted above and that such voir dire continued through some nine pages of the transcript before an interruption and a side bar conference produced objection by the defense to this and...