State v. Henderson, 36882

• Decision Date: 28 December 1976
• Docket Number: No. 36882,36882
• Citation: State v. Henderson, 547 S.W.2d 141 (Mo. App. 1976)
• Parties: STATE of Missouri, Respondent, v. Thomas HENDERSON, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 141

547 S.W.2d 141

STATE of Missouri, Respondent, v. Thomas HENDERSON, Appellant.

No. 36882.

Missouri Court of Appeals, St. Louis District, Division Four.

Dec. 28, 1976.

Motion for Rehearing or Transfer Denied Feb. 16, 1977.

Timothy A. Braun, Public Defender, Clayton, for appellant

John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Thomas Henderson was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon. He was charged pursuant to § 556.280 RSMo 1969 as a second offender and was sentenced by the court to imprisonment for a term of ten years. This appeal followed. We affirm.

Appellant does not challenge the sufficiency of the evidence. We need only state that a jury reasonably could find that on June 23, 1973, appellant entered the Quick Shop at 1923 Hanley Road in St. Louis County, and by use of a .45 caliber automatic pistol took money from the cash register, which was under the control of Mrs. Josephine Snow, the manager, and from the billfold of Mr. Arthur Snow, her husband and a part time employee.

Appellant first asserts that the trial court committed reversible error in denying his motion for a mistrial when on two occasions the prosecuting attorney referred to photographs, one of which was of appellant, as "mug shots." Appellant argues that this reference (a) "indicated that (he) had prior criminal involvement;" (b) "prejudiced defendant as inadmissible evidence of prior arrest;" and (c) "violated a protective order."

Prior to the use of the term "mug shots" by the prosecutor, Mrs. Josephine Snow had testified that immediately after the robbery she called the police, an officer then talked to her and obtained a description of the robber, and a few hours later the officer returned with photographs of four individuals, one of which consisted of a front and side view of appellant. Mrs. Snow testified that the two views of appellant were "the ones that the policeman brought to us" and that they were pictures of the person who robbed her. Therefore, at the time the references were made to "mug shots," the jury knew, as appellant admits in his brief, that "the four pictures which (the police officer) brought back with him were at the time of the robbery of the Quick Shop available to the police and therefore had not been taken as a result of the present charge." For this reason, insofar as it may be argued that the use of the term "mug shots" indicated that the photograph of appellant was a part of the police records and for that reason implied that appellant had a prior criminal record and had previously been arrested, the prosecutor told the jury nothing it did not already know.

On each occasion when the term was used, appellant asked only for a mistrial. The court indicated it would give other relief because, following the first usage, without a request it admonished the jury to disregard the question in which the term was used.

Because the use of the term did not tell the jury anything it did not already know, and because of the opinions of this court in State v. Harris, 534 S.W.2d 516 (Mo.App.1976); State v. Carson, 501 S.W.2d 503 (Mo.App.1973); and State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975), as stated in State v. Barnes, 536 S.W.2d 932, 933 (Mo.App.1976), "further discussion of this 'mugshot' issue would have little, if any, precedential value." As in the Barnes case, there was no direct reference to either prior arrests or convictions. We see no special significance to the fact that a so-called protective order had been made. There was nothing to indicate a deliberate and intentional violation of that order.

"Every error which might occur in the trial of a case (assuming error in the circumstances of this case, of which we have substantial doubt) does not necessarily require the granting of a mistrial," State v. Smith, 431 S.W.2d 74, 82-83 (Mo.1968), and the drastic remedy of a mistrial "should be exercised only in extraordinary circumstances," State v. James, 347 S.W.2d 211, 214 (Mo.1961), and "only when the incident is so grievous that the prejudicial effect can be removed no other way." State v. Camper, 391 S.W.2d 926 (Mo.1965). The trial court did not consider the incident warranted the granting of a mistrial, a matter in which it has considerable discretion. The proper function of an appellate court in this situation is to determine whether, as a matter of law, the trial court abused its discretion, and it clearly did not.

Appellant next asserts that the trial court "committed reversible error by departing from its prescribed role as impartial administrator of justice in commenting in the presence of the jury that an objection by (appellant's) attorney was 'ridiculous.' " The comment was made in regard to a request for a mistrial during the voir dire examination and not concerning an objection. The only relief requested was that "the court's comment on my objection * * * be noted for the record."

Appellant received all the relief requested, and other than the issue of whether the trial court should have granted a mistrial without a request therefor, appellant has preserved nothing for appellate review. State v. Cheatham, 340 S.W.2d 16 (Mo.1960); State v. Holmes, 419 S.W.2d 15 (Mo.1967); State v. Platt, 525 S.W.2d 637 (Mo.App.1975). This is not the kind of occurrence that calls for the application of Rule 27.20(c), and it certainly does not at the appeal stage justify a reversal of the judgment; the only relief now available. We consider this incident trivial in nature, and our review of the entire record calls for the comment that the trial court exercised commendable restraint during the entire trial.

Appellant's third contention is that the trial court erred in "permitting the prosecutor in voir dire and in closing argument to explain to the jury * * * that 'reasonable doubt' does not mean 'beyond a shadow' or 'beyond any doubt.' " He asserts this was reversible error because "in a close case" such an explanation "improperly stated the law, confused the jury, and lessened the State's burden of proof.

We first comment that we do not consider this to be a "close case." Next, we find no incorrect statement of the law. Aside the issue of whether it was within the province of the prosecutor to make the remarks during the voir dire examination, he was legally correct when he said that reasonable doubt does not mean "beyond a shadow" or "beyond any doubt." Third, every objection made by appellant to the comments of the prosecutor during the voir dire concerning reasonable doubt was sustained by the court. The only other relief requested was a mistrial, and this is the incident that brought forth the comment of the court previously discussed, that the request was "rediculous." The only issue on this appeal as to the comments during voir dire is whether the trial court committed prejudicial error in refusing appellant's request for a mistrial, and it obviously did not. A comment however is appropriate. As stated in State v. Van, 543 S.W.2d 827 (Mo.App.1976), a case pertaining to comments by the prosecutor during the voir dire examination, it is not the prerogative of counsel to inform the jury as to the law. Also, the voir dire examination of the jury is not the occasion for argument. There was some overstepping in this case as to each of these matters, but in the circumstances no prejudice to appellant resulted. Reversal of the judgment is not called for nor is it appropriate.

We turn now to the complaint as to oral argument. The following occurred:

"Mr. Dittmeier (prosecutor): I talked to you on voir dire about following the instructions. You have to find him guilty beyond a reasonable doubt. Read the instructions. The burden is on the State. Again, the word reasonable is in there. If it was the law that you had to find him guilty beyond the shadow of a doubt

"Mr. Braun: Your Honor, I object to his commenting on the burden of proof.

"The Court: Overruled.

"Mr. Dittmeier: If you had to find him guilty beyond the shadow of a doubt, I'd say shadow of a doubt, if that's the law. That is what we would say, but it says reasonable doubt. If it said proof beyond any doubt, if that was the law, I'd say beyond any doubt, but it is not.

"Mr. Braun: Judge, I object to him continuing to comment on this * * * ."

Under the burden of proof instruction, (MAI-CR 2.20) the court instructed the jury that the defendant is presumed to be innocent and that this presumption places on the State the burden of proving beyond a reasonable doubt that the defendant is guilty. In the Notes on Use under this instruction it is stated that the Court may not further define reasonable doubt.

The Notes on Use, however, do not purport to limit counsel in oral argument. Such limitations as exist are by reason of the application of the general rules pertaining to the scope of oral argument. But, see, State v. Belleville, 530 S.W.2d 392 (Mo.App.1975), and State v. Sanders, 541 S.W.2d 782 (Mo.App.1976). There is no occasion to determine whether under the applicable rules this was permissible argument because, assuming that it was not, it was not prejudicial. What was said as to the meaning of the term reasonable doubt was legally correct, and no jury composed of reasonably intelligent men and women could have been confused or mislead by the argument.

Appellant's final point is that the trial court erred in denying his "motion to suppress the introduction at trial of any testimony of (A) the selection of (his) picture by the Snows on June 25, 1973 (B) the identification of the defendant by the Snows at the video tape confrontation on February 18, 1974, and (C) the identification of (him) by the Snows in Court at the trial." He asserts that each identification...