State v. Harris, WD

• Decision Date: 31 March 1987
• Docket Number: No. WD,WD
• Citation: 731 S.W.2d 846
• Parties: STATE of Missouri, Respondent, v. Bruce E. HARRIS, Appellant. 37909.
• Court: Missouri Court of Appeals

Page 846

731 S.W.2d 846

STATE of Missouri, Respondent, v. Bruce E. HARRIS, Appellant.

No. WD 37909.

Missouri Court of Appeals,

Western District.

March 31, 1987.

Sean D. O'Brien, Public Defender, S. Dean Price, Asst. Public Defender (argued), Kansas City, for appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen. (argued), Kansas City, for respondent.

Before CLARK, C.J., and TURNAGE and NUGENT, JJ.

NUGENT, Judge.

Defendant Bruce E. Harris appeals his convictions by a jury of first degree robbery, § 569.020, and armed criminal action, § 571.015 ¹, for which he was sentenced to concurrent terms of imprisonment of fifteen years and five years, respectively. Defendant first claims that the trial court erred by prohibiting him from outlining in his opening statement favorable evidence that he expected the state to produce. Defendant also claims that the trial court erred in giving MAI-CR2d 1.02 and MAI-CR2d 2.20 in that those instructions improperly define "reasonable doubt" as proof that leaves the jury "firmly convinced" of a defendant's guilt, thereby reducing the state's burden below that required by the due process clauses of the state and federal constitutions. Finally, defendant requests reversal because, during his closing argument, the prosecuting attorney impermissibly defined "reasonable doubt", shifting to the defendant the burden of creating a reasonable doubt.

For the reasons set forth below, we affirm the judgment.

The relevant facts center upon the question of misidentification of the defendant as perpetrator of the crimes. On July 15, 1985, John Knoche was cleaning his car near his apartment building when a young black male approached him from behind and pushed a gun against his head. The man ordered him to get in the car and to begin driving normally or he would blow him all over the side of the car. Mr. Knoche drove the man around the mid-town area for over an hour. At some point the man ordered him to cash a check for $320 at the drive-in window of his neighborhood bank. The man then took the money.

Eventually, the assailant had Mr. Knoche stop the car in a park and ordered him to go into a ravine and remove his clothing. Then, he hit the victim on the back of the head with the gun and drove away in the car, taking his billfold, checkbook, credit cards, clothing, two gold rings, and approximately $345 in currency as well.

Mr. Knoche made his way to a nearby residential area where neighbors lent him a blanket to wrap himself and called the police. When Officer James Pruetting arrived, he noted the victim's description of the assailant as a young black male, five feet nine inches tall, 145 pounds, in his early twenties. Mr. Knoche described the assailant's clothing and his own automobile. He omitted any reference to the robber's facial hair.

About two and a half hours later, Mr. Knoche gave a more detailed description to Detective Clarence Luther at the police station. Again he said that the man was five feet nine inches tall and weighed 145 pounds. He also said that the robber had medium-length natural style hair and that he was clean-shaven.

On July 25, 1985, Mr. Knoche viewed a photo array at police headquarters and identified defendant Harris as the robber. That photograph of Mr. Harris showed a young black man with very short hair and light facial hair growth. On August 9, 1985, he positively identified the defendant in a live lineup. Defendant Harris is over six feet tall and then weighed from 175 to 180 pounds.

The police recovered Mr. Knoche's car and some of his belongings on July 19, 1985. Investigators found no fingerprints matching those of the defendant. Mr. Knoche's identification of the defendant Harris was the only evidence linking him to the crimes.

The record pertinent to defendant's first point on appeal shows that in her opening statement defense counsel made these remarks:

First of all, the evidence will be undisputed that Mr. Knoche was robbed on July 15th. However, the Defendant expects that his evidence and State's own evidence will show that Bruce Harris was not the man that robbed him on that date. Immediately after the robbery took place, police arrived on the scene and they took a very brief description of the robber to put over the radio to look for the man who had committed this robbery; and at that time Mr. Knoche, within just a few minutes of this robbery, described this robber as being five foot, nine inches tall. The Defendant's evidence and State's own evidence will be that Bruce Harris is six foot, just a little above that. Further, Mr. Knoche described this man weighing 145 pounds. Defendant's evidence will be that at that time Bruce Harris weight [sic] btween [sic] 175 and 180 pounds.

After Mr. Knoche was taken back and got his clothes, then, as Mr. Quinn told you, the evidence will be he went down to the police department and he gave a statement to Detective Luther. At that time he was asked, again, well what did this man look like? The evidence will be that his statement, once again, was that this man was five foot, nine inches tall. Once again, he told Detective Luther that this man weight [sic] about 145 pounds. The defense evidence will be that at that time, of course, Bruce Harris was over six feet and weighed between 175 and 180 pounds.

Further, at that time Mr. Knoche went to describe this man as having a medium length natural hair style. The Defendant's evidence will be that in late June of 1985 he went to the beauty shop at 71st and Prospect and attempted to get what's called a Jeri curl. It didn't take and it looked awful and within a week or so, about a week after July 4th, Mr. Harris' uncle, Jim Haislip, will come in and tell you that he cut Bruce Harris' hair and he shaved it. He shaved his head. Mr. Haislip will come in and tell you that he can't remember exactly when he did this, but he remembers the July 4th holiday and believes it was within a week or so after than [sic]; certainly well before July 15th. The State's own evidence, State's own photographs Mr. Quinn has mentioned will show that on July 18th when Mr. Harris--when Bruce Harris was arrested, he had just a very shading of hair. I don't want to mislead you. The defense evidence will not be Mr. Harris was shaved like Telly Savalas, but it was cut very, very short, and State's own photograph will show that. Additionally, Mr. Knoche and his statement to Detective Luther described this man as being clean shaven.

At that point, the prosecutor objected on the ground that defendant's opening statement constituted an improper comment on evidence that the defendant hoped to develop through cross-examination of the state's witnesses. The trial court sustained the objection, explaining that the opening statement entitled the defendant to outline the evidence from his perspective but did not permit him to comment on what he expected the state's evidence to be. Resuming her opening statement, defense counsel explained that she would show that on July 15 the defendant had a mustache and visible hair growth on his chin.

With regard to defendant's third point on appeal the record reveals that in the rebuttal stage of the state's summation the prosecuting attorney made the following argument about the jury instruction ² on the state's burden of proof:

Reasonable doubt, reasonable doubt. That's the only thing they have got left, ladies and gentlemen. What is that? The instruction tells you about that too. What it tells you, ladies and gentlemen, is that it's not beyond all doubt. It's just what it says, be reasonable. We bring people in here from the community, ladies and gentlemen, because you're allowed to use your common sense when you go back into that juryroom. You use that common sense to apply to the instructions of the law. That's reason. You compare. I'll trust you to compare the reasonableness of Mr. Knoche's identification versus this Defendant's story.

The defendant objected that the prosecutor's last statement impermissibly characterized the state's burden of proving guilt beyond a reasonable doubt as one of believing either the victim or the defendant. The trial court sustained the objection and, on defendant's request, instructed the jury to disregard the last statement.

I.

In his first point, defendant Harris contends that the only evidence of his guilt was the testimony of the victim, John Knoche, and that Mr. Knoche's description of his assailant was strikingly different from defendant's description. Defendant complains that the court's ruling denied him the right to make an effective opening statement, depriving him of "equal rights and opportunities under the law" as well as the right to "appear and defend ... by counsel" in violation of §§ 2 and 18(a), Art. I of the Missouri Constitution and the Sixth Amendment to the United States Constitution, requiring reversal.

The scope and manner of opening statement is largely within the discretion of the trial court. State v. Brooks, 618 S.W.2d 22, 24 (Mo.1981) (en banc). The purpose of the opening statement is not to test the sufficiency or the competence of the evidence, but rather "to inform the court and the jury in a general way of the nature of the case, the outline of the anticipated proof and the significance of the evidence as it is presented." State v. Fleming, 523 S.W.2d 849, 852-53 (Mo.App.1975). See also State v. Brooks, supra. The Fleming court relies on Standard 7.4, Standards Relating to the Prosecution and Defense Function of the American Bar Association Project on Standards for Criminal Justice, and the accompanying commentary. That standard provides that defense counsel should confine the opening statement to a brief outline of the issues and the matters which counsel believes the competent and admissible evidence will support.

Here, the prosecuting attorney objected to defendant's opening statement as improper...