State v. Green

• Decision Date: 22 July 1974
• Docket Number: No. 1,No. 57620,57620,1
• Citation: State v. Green, 511 S.W.2d 867 (Mo. 1974)
• Parties: STATE of Missouri, Respondent, v. Clarence GREEN, Appellant
• Court: Missouri Supreme Court

Page 867

511 S.W.2d 867

STATE of Missouri, Respondent, v. Clarence GREEN, Appellant.

No. 57620.

Supreme Court of Missouri, Division No. 1.

July 22, 1974.

John C. Danforth, Atty. Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for respondent.

Alan G. Kimbrell, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.

HIGGINS, Commissioner.

Clarence Green was convicted by a jury of murder, first degree. His punishment was assessed at life imprisonment and sentence and judgment were rendered accordingly. (Appeal taken prior to January 1, 1972.)

Appellant does not question the sufficiency of evidence to sustain his conviction; and the evidence, including his statements to police officers, his video-taped statement, and testimony of an accomplice, would permit the jury to find: that on March 25, 1970, Doris Grueling was the manager of Hart's Bread Store, 701 South Florissant Road, Ferguson, St. Louis County, Missouri; that around noon Clarence Green and Henry French Entered the store armed with a .22 caliber, 'sawed-off' rifle; that they confronted Doris Grueling with the gun, announced a holdup, and demanded the money in her cash register; that while she was placing the money in a bag, Nicholas Orlando entered the store; that Nicholas Orlando was shot in the back of his head and wounded to the extent of complete loss of memory and partial paralysis, and that Doris Grueling was shot and killed; that $173.18 was taken in the robbery; and that the money was divided between the robbers.

Appellant charges the court erred (I) in refusing to give an instruction to the effect that testimony of an alleged accomplice ought to be received with great caution because the alleged accomplice testified to defendant's prejudice that defendant participated in the robbery and shot the victims.

In support, appellant cites a number of cases, e.g., State v. Meysenburg, 171 Mo. 1, 71 S.W. 229 (1902), State v. Woolard, 111 Mo. 248, 20 S.W. 27 (1892), State v. Clark, 221 Mo.App. 893, 288 S.W. 484 (1926), State v. Williams, 266 S.W. 484 (Mo.App.1924), on his proposition that even though juries may convict on uncorroborated testimony of an accomplice, such evidence ought to be received with great caution by the jury and, presumably, that the court should so instruct the jury.

Appellant's proposition has no application in this case. In addition to testimony from the accomplice, there was evidence that the gun used to commit the crime was found at defendant's home, and defendant made admissions which implicated him in the crime. Accordingly, a different rule applies to this case, i.e., '* * * where there is other evidence than the accomplice's, identifying the defendant as the perpetrator of the crime, no such instruction is necessary.' State v. Merrell, 263 S.W. 118, 121(6, 7) (Mo.1924). See also, State v. Koplan, 167 Mo. 298, 66 S.W. 967 (1902); State v. London 295 S.W. 547 (Mo.1927); State v. Caldwell, 428 S.W.2d 727 (Mo.1968).

Appellant charges the court erred (II) in giving Instruction No. 11 on credibility in that it failed to tell the jury that it could take into consideration a witness's (Henry French's) nine prior felony convictions, one of which was his conviction upon plea of guilty to this crime.

Instruction No. 11 was in the form of the usual credibility-of-witnesses instruction prior to MAI-CR. ¹ It advised the jury that it was the sole judge of credibility of witnesses and the weight to be given their testimony, and what could be taken into account in making that determination: demeanor, manner, interest in the result of the trial, relation to or feelings toward the defendant or any witness, and the probability or improbability of witnesses' statements, as well as all facts and circumstances in evidence. There was no specification of prior convictions as a determinant which, in this case, would have applied to witness French alone.

Appellant argues that had no credibility instruction been given, appellant would have had no complaint; but since one was given, it was erroneous because it excluded a critical factor, prior convictions. He would support his argument by the maxim, expressio unius est exclusio alterius. See, e.g., Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896 (banc 1929), in connection with statutory construction, and Hoover v. National Casualty Co., 236 Mo.App. 1093, 162 S.W.2d 363 (1942), in connection with contracts.

An instruction on credibility lies within the discretion of the trial court, State v. Worley, 353 S.W.2d 589 (Mo.1962); and there was no abuse of discretion in giving Instruction No. 11. It was in conventional form and did not unduly direct attention to the credibility of a single witness. In this case, it would perhaps not have been error to include the requested determinant because the witness in question admitted his prior convictions, but the better practice is to limit credibility-of-witnesses instructions to one generally referring to all witnesses alike. State v. Everett, 448 S.W.2d 873, 878(4--6) (Mo.1970). See also MAI-CR 2.01.

Appellant charges the court erred (III) in permitting the State, on voir dire, to question prospective jurors about the rules on felony-murder and accessories, and in sustaining the State's challenges for cause because the questions were inaccurate, incomplete, and misleading statements of the law; called upon panelists to commit to a future course of conduct; and commit to a responses did not indicate they would not obey instructions or that they would be unfair and partial.

These questions consumed some twenty pages of the trial transcript. Typical is the questioning of panelist Andres.

'(By Mr. Merz, Assistant Prosecuting Attorney): I expect the State will be proceeding under what is known in common reference as the felony murder rule. This law, which I expect the Court will give to you, very simply states that if the death occurs as a result of and during the commission of certain felonies, including robbery, that all participants in that robbery are guilty, equally guilty, of murder in the first degree, whether or not the particular person pulled the trigger or actually committed the murder himself. If one person commits the murder during the course of a robbery, then all persons involved in that robbery are equally guilty of that murder under the felony murder rule. This is the law that I except the Court will submit to you, and this is the law that you will have to apply in determining this case. Is there anyone, any member of the jury panel, that feels that he could not accept that rule of law or would have any quarrel with that rule of law that would make it difficult or impossible for you to follow that rule of law? Is there anyone who would have any difficulty with that rule of law? Mr. Andres?

'ROBERT R. ANDRES, JR.: Yes, I don't feel that I could justify someone to be guilty of murder if someone else shot someone.

'MR. MERZ: You do understand what I said, that this would apply, of course, only if both or all parties were participating in the robbery? You understand that? MR. ROBERT R. ANDRES, JR.: Yes, sir.

'MR. MERZ: And you feel--do you feel that--would you be unable to follow that rule of law if the Court gave it to you? MR. ROBERT R. ANDRES, JR.: Yes, sir. I feel that I would be. MR. MERZ: Thank you very much for speaking up, Mr. Andres. And, Your Honor, at this time, the State would ask that Mr. Andres be excused from this panel by reason of the fact that he would be unable to apply that particular law if he were chosen.

'WHEREUPON, the following proceedings were had and entered of record IN THE PRESENCE BUT OUT OF THE HEARING OF THE JURY PANEL:

'MR. KIMBRELL (attorney for defendant): If Your Honor please, we object to Mr. Merz's request on the ground that he has given his own summary in his own words of the felony murder doctrine, and I now object to the formulation of this, because I am sure that the judge's instructions will prevail. However, he has not given a complete and accurate formulation of it, and I do not think that it is proper for him to strike for cause a juror who has indicated that he would not be able to follow Mr. Merz's instructions. THE COURT: Sustained. You will have to pursue it further.

'MR. MERZ: I am not sure that I understand the Court's ruling. Are you ruling that my statement * * * is incorrect or is there some other reason? He didn't really say that he would not follow the Court's instructions, if you would listen to him carefully. If anything, I gathered that he was a hanging juror, if someone shot someone else in a felony, but I don't think that he understood what you said. I believe that he said that he could not. THE COURT: That is what his statement the second time was, but I don't know what he means by that. MR. KIMBRELL: It sounds to me like he means that he couldn't convict one person if the other person did the shooting, if under the felony murder rule he would be required to do so under the evidence. THE COURT: That is not the felony rule. That is the accessory rule. Sustained. You will have to pursue it further. I can't tell. * * *

'MR. MERZ: Mr. Andres, to clarify the record a little more on this, I think that there might be some misunderstanding, maybe, by myself, as to your answer. If under the Court's instructions to you, under the law that he gives you, that you were required to find the defendant guilty if you believed from the evidence and beyond a reasonable doubt, that he participated in a robbery, but that he did not pull the trigger, and someone was in fact killed, did I understand you correctly to say that you could not feel that you could convict someone of murder in the first degree if they were not the one who pulled the trigger? ROBERT R. ANDRES, JR.: Yes, sir.

'MR. KIMBRELL: Objection. I object to the form of the question, Your Honor.

'(WHEREUPON, the following proceedings were had and entered of record IN THE PRESENCE BUT OUT OF THE...