State v. Goree

• Decision Date: 15 November 1988
• Docket Number: No. 70112,70112
• Citation: 762 S.W.2d 20
• Parties: STATE of Missouri, Respondent, v. Lavenia J. GOREE, Appellant.
• Court: Missouri Supreme Court

Page 20

762 S.W.2d 20

STATE of Missouri, Respondent, v. Lavenia J. GOREE, Appellant.

No. 70112.

Supreme Court of Missouri En Banc.

Nov. 15, 1988.

Rehearing Denied Dec. 13, 1988.

Henry Robertson, Deborah Lambdin Stockhausen, St. Louis, for appellant.

William L. Webster, Atty. Gen., Byrona Kincanon, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

A jury convicted appellant, Lavenia J. Goree, of three counts of murder in the first degree. Section 565.020.1, RSMo 1986. The trial court sentenced her to three concurrent life sentences without possibility of probation or parole. She appeals, alleging trial court error in (1) failing to grant her motion waiving her right to a jury trial, (2) failing to declare a mistrial because of alleged prosecutorial misconduct, and (3) failing to declare a mistrial after the prosecutor improperly argued an adverse inference from appellant's failure to call a witness. The Court of Appeals, Eastern District, affirmed by memorandum order. Rule 30.25(b). We granted transfer to consider the issues raised by appellant. We have jurisdiction. Mo.Const. art. V, § 10. Affirmed.

I.

The facts are uncontroverted. On July 17, 1985, appellant picked up her three daughters, Crystal, age seven; Danielle, age four; and Melissa, age twenty-one months, and Bryan Vent, her boyfriend's son, from the baby sitter and took them home. Shortly after entering the home, appellant went into her brother's bedroom, got his gun from the closet, and shot at her three children, fatally wounding all three. Bryan Vent was not harmed.

Appellant then dialed 911 and requested three ambulances and the police. When the police arrived, all three children were alive; each died shortly thereafter. Appellant admitted shooting her children to the police on the way to the police station and again in a taped confession later. At trial, appellant relied on a defense of not guilty by reason of a mental disease or defect.

II.

A.

Appellant's first point assigns error to the trial court's failure to permit her to waive her right to a jury trial. Appellant claims she has an absolute right to waive a jury under Mo.Const. art. I, § 22(a), and that the failure to sustain the motion was an abuse of discretion.

Prior to trial, appellant orally moved to waive her right to a jury trial and proceed to trial before the court. Appellant argued then and renews the argument here that a trial judge would be a more dispassionate and impartial trier of fact, given the emotionally charged nature of the case and appellant's reliance on the insanity defense. The trial judge overruled the motion, stating that due to the heavy penalty involved with first degree murder, he was reluctant to hear the case without a jury.

Mo.Const. art. I, § 22(a), reads:

That the right of trial by jury as heretofore enjoyed shall remain inviolate; ... and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury (emphasis added).

In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), the United States Supreme Court found that, although a defendant may waive the right to a jury trial under Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), there is "no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subjected to an impartial trial by jury--the very thing the constitution guarantees him." Singer, 380 U.S. at 36, 85 S.Ct. at 790.

In State v. Taylor, 391 S.W.2d 835 (Mo.1965), this Court found that a black defendant had no absolute right to waive jury trial simply because of fear that a jury would give undue weight to the testimony of a white narcotics agent during a time of heightened racial tension. The Court stated:

Under the constitution and the rule both accused and court must assent and agree that the issues of fact in a criminal case be determined by the court and not in the traditional form of trial by jury. The accused has no absolute right, either by constitution, statute, or court rule, to elect that he shall be tried by the court without a jury.

Taylor, 391 S.W.2d at 836. See also State v. Johnson, 530 S.W.2d 690 (Mo. banc 1975) (court upheld the trial court's denial of a motion for waiver of jury trial on basis of Taylor and Singer ).

Appellant has no absolute right to waive a jury trial. By the unambiguous language of the constitution, the right is conditioned upon the assent of the court. Failure to sustain a motion to waive a jury trial is not an abuse of discretion. The point is denied.

B.

Appellant's second point alleges error in the failure of the trial court to declare a mistrial sua sponte because of alleged prosecutorial misconduct. Appellant contends that the prosecutor asked questions of appellant's witnesses that were based upon facts which were not in evidence and which were untrue. Appellant claims that these questions were an attempt to discredit the information supplied by appellant in support of her insanity defense and were asked in bad faith. Specifically, appellant's contentions are twofold: First, she argues that the prosecutor should not have been allowed to state that appellant stole cosmetics instead of food when cross-examining Dr. Michael Armour, a psychologist testifying for appellant. Second, appellant urges that the State's statement to Ms. Kuela-Branz, a social worker testifying for appellant, that appellant did not complete any of the courses in which she enrolled at a community college was untrue.

1.

The pertinent portion of Dr. Armour's testimony follows:

Q. All right. When she told you that she had a shoplifting charge for stealing food to eat, you mentioned that in your report?

A. Yes, sir.

Q. Did you do that because you thought that was significant?

A. Well, mentioning it in my report, I mentioned it in the report because it's pretty much the standard procedure for us that we review the person's legal history. I think it's more significant in this case, because this lady--this later gets incorporated into her psychotic thinking that people somehow know about her previous shoplifting charge.

Q. Well, did it evoke sympathy from you?

MS. MARXKORS: I object to the relevancy, Your Honor.

THE COURT: No, overruled.

A. Could you be a little more specific?

Q. The fact that she told you that she was stealing food to eat, did that evoke sympathy?

A. I'm not sure, I really don't recall.

Q. Well, what if you had investigated that and found that she had stolen mascara and lipstick and eyeliner and make-up instead would that have made a difference?

A. In terms of sympathy or in terms of this charge having--

Q. The--the--in terms of you feeling, since eighty-five percent of this information is coming from her.

A. Uh-huh.

Q. In terms of the way you would feel about her.

A. You mean in terms of my final opinion?

Q. Yes.

MS. MARXKORS: Your Honor,--

A. No, sir I don't think so.

MS. MARXKORS: --lack of foundation.

THE COURT: No, he can answer and it's overruled. Go ahead. He said no and it can stand.

At trial, appellant objected to the question's lack of foundation. On appeal, however, appellant objects to the State's questions claiming they were asked in bad faith. To preserve error for appellate review, an objection must be made with sufficient specificity to inform the trial court of the ground or reason for excluding evidence. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974); State v. Cannady, 660 S.W.2d 33, 36 (Mo.App.1983). The objection at trial thus did not preserve a claim of prosecutorial bad faith for appellate review. We review for plain error and will reverse only if we find manifest injustice or a miscarriage of justice as a result of the alleged error. Rule 30.20.

Normally, an expert witness may be cross-examined regarding facts not in evidence to test his qualifications, skills and credibility, or to test the validity and weight of his opinion. Myers v. Bi-State Development Agency, 567 S.W.2d 638, 643 (Mo. banc 1978); State v. Deyo, 387 S.W.2d 561, 566 (Mo.1965). In the present case, the state's cross-examination was designed to test the credibility, validity, and weight of the expert's opinion by finding out what, if any, emotional impact the information that appellant gave Dr. Armour might have had on his opinion, and whether different "facts" would alter that opinion. On this basis, the question was not improper.

Moreover, the facts support the state's question. Appellant stated to Dr. Armour that she "stole some food from a Schnucks' store because she didn't have any food for her children." The items stolen from Schnucks ¹ were predominantly cosmetic items; the only food items were a chocolate bar and a pound of sausage. Given the nature of the stolen items, it cannot be said that the state's cross-examination relied on facts which were either untrue or offered in bad faith.

2.

Appellant also alleges that certain questions asked of Ms. Kuela-Branz were improper. In reference to appellant's taking classes at Forest Park Community College, the State asked:

Q. Yourself? Okay. Are you aware that she, just a second. Are you aware that she never got any grades for any of the courses that she took at Forest Park Community College? Did she in effect drop out of all of them?

A. I didn't ask to see report cards or--

Q. But at one time--point, she started on January 17th and she was concerned about something as early as January the 27th as it related to some courses there, is that correct?

A. Yes.

Q. Would it surprise you greatly to learn that she just dropped out of all of them?

A. No, because it was--it was a new thing for her to even go and register for school, to even interact in that setting (emphasis added).

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