State v. Herndon, WD

• Decision Date: 13 March 1984
• Docket Number: No. WD,WD
• Citation: 670 S.W.2d 32
• Parties: STATE of Missouri, Respondent, v. Demetrius HERNDON, Appellant. 34536.
• Court: Missouri Court of Appeals

Page 32

670 S.W.2d 32

STATE of Missouri, Respondent, v. Demetrius HERNDON, Appellant.

No. WD 34536.

Missouri Court of Appeals Western District.

March 13, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 1, 1984.

Application to Transfer Denied

June 19, 1984.

Joseph H. Locascio, Sp. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.

MANFORD, Judge.

This is a direct appeal from a jury conviction for murder, first degree, in violation of § 565.030, RSMo 1978, forcible rape, § 566.030, RSMo 1978, robbery first degree, § 569.020, RSMo 1978, assault, first degree, § 565.050, RSMo 1978, and armed criminal action, § 571.015, RSMo 1978.

Appellant presents five points which in summary charge the trial court erred in (1) overruling his objections to questions by the prosecution during voir dire, because said questions were impermissible comments and definitions of proof beyond a reasonable doubt, (2) abusing its discretion in sustaining the prosecutions motions to strike certain venirepersons for cause, (3) instructing the jury on murder, first degree, (4) allowing a videotape of a prosecution witness, and (5) overruling his motion to suppress certain statements made by appellant to investigating officers.

No challenge is made to the sufficiency of the evidence, so a brief summary of the pertinent facts suffices. On the evening of July 4, 1981, appellant along with Robert Mayhue and Anthony Darrington went to a local convenience store in Kansas City, Missouri. The purpose of the trio was to seek out a robbery victim. They had secured a handgun earlier in the day. Between the hours of 11:30 p.m.--12:15 a.m. (July 4/5, 1981), an automobile occupied by the victims Ronald Fellman and Shardell Saper entered the store parking lot. As Fellman returned to the automobile (Saper was seated in the right front seat), appellant and his two accomplices displayed a handgun and robbed Fellman. The two then entered the automobile forcing Fellman to the rear seat. The automobile was driven from the store, and a short distance later Fellman was locked in the trunk of the automobile. The trio then raped Saper and she was then locked in the trunk with Fellman. The automobile was then driven to an area liquor store, during which time the victims attempted to pry open the trunk lid. At the liquor store Mayhue went inside. Fellman ultimately managed to get out of the trunk and started running from the automobile screaming for help. Appellant shot and murdered Fellman. Mayhue returned from the liquor store and the trio again drove the automobile around with Saper still in the trunk. Saper attempted to attract attention by extending a tire tool out of the trunk opening. She was observed by Mayhue. The automobile was stopped. Mayhue stuck the barrel of the handgun into the trunk shooting Saper in the face. Saper feigned death. The trio abandoned her and the automobile. Later Saper freed herself and sought help from area residents.

Appellant testified, as did six other witnesses, on his own behalf claiming he was at a neighborhood holiday party, thus claiming an alibi defense. The evidence closed. The jury returned its verdict. Judgment and sentence were entered. This appeal followed the overruling of timely filed post-trial motions.

Appellant's points (1) and (2) involve reference to the same portion of the transcript and present a bifurcated attack on the trial court arising from the voir dire. These points are taken up and ruled jointly. In summary, appellant charges (a) the trial court erred in overruling his objections to questions by the prosecutor because said questions were impermissible comments and definitions of proof beyond a reasonable doubt, and (b) the trial court erred by abusing its discretion when it sustained the prosecution's motion to strike certain venirepersons for cause.

For purposes of disposition of this bifurcated charged error, reference must be made to a portion of the transcript which reads as follows:

MR. SCHAFFER: All right. Another thing you will be instructed on is the burden of proof. You will hear that the burden of proof in a criminal case is beyond a reasonable doubt.

Is there anybody on the jury panel who feels in a criminal case, or especially a capital murder case, a rape and robbery, that the State should have to prove its case to a degree higher than simply beyond a reasonable doubt.

MR. LOCASCIO: Objection, Your Honor. May we approach the bench?

THE COURT: You may.

(Whereupon, the following proceedings were had in the presence but out of the hearing of the jury panel:)

MR. LOCASCIO: Your Honor, the State is defining for the jury what reasonable doubt is, and I think it is an area where the prosecutor should rely on the Court's instructions rather than the prosecutor attempting to define the standard of proof, that is what it gets down to, to defining that standard of proof.

THE COURT: I think the case law is clear there can be comment on the burden of proof by the prosecutor, I don't think he's defining it by his statements.

MR. LOCASCIO: The way he's asking the question, he's defining it for the veniremen, the standard of proof is not beyond all doubt, he's trying to define it.

THE COURT: I understand your objection and I disagree. The objection is overruled.

(Whereupon, the following proceedings were had in the presence and hearing of the jury panel:)

MR. SCHAFFER: The question still remains, is there anyone on the jury panel that feels in a criminal case that the State's burden of proof should be higher than the law itself says the burden is, is there anybody that the State's burden should be higher than merely beyond a reasonable doubt?

(No response.)

MR. SCHAFFER: Anybody who would expect the State, or require the State, to prove beyond all doubt--

MR. LOCASCIO: Objection, Your Honor.

(Whereupon, the following proceedings were had in the presence but out of the hearing of the jury panel:)

THE COURT: The objection is overruled, I understand your objection.

Go ahead and make your record.

MR. LOCASCIO: The prosecutor has now made reference to a different standard of proof, by making reference to that standard of proof is, in fact, implying, or complying that the standard of proof is beyond a reasonable doubt, thereby he is defining that standard.

THE COURT: The objection is overruled.

Let's proceed.

(Whereupon, the following proceedings were had in the presence and hearing of the jury panel:)

MR. SCHAFFER: Is there anyone who is going to require the State to prove its case beyond all doubt?

Ms. Florez, I thought that was what you were saying earlier on, and by raising your hand you're indicating you are going to require the State to prove its case beyond all doubt?

VENIREWOMAN FLOREZ: Yes.

MR. SCHAFFER: All right.

Is there anyone else who feels as Mrs. Florez does?

Mr. Ramsey and Mr. Archer?

Let's take one at a time.

Mr. Ramsey, are you indicating in a criminal case you would not be able to follow the instructions of the law in which the State would prove its case beyond a reasonable doubt, that instead you are saying that you would require that the State prove to you he's guilty beyond all doubt?

VENIREMAN RAMSEY: I would have to know for sure he was guilty before I would say yes.

MR. SCHAFFER: You would require the State to prove its case to you beyond all doubt?

MR. LOCASCIO: May we approach the bench, Your Honor?

THE COURT: Yes.

(Whereupon, the following proceedings were had in the presence but out of the hearing of the jury panel:)

MR. LOCASCIO: By dwelling on this subject, again, I'm objecting to the prosecutor's comparing the standard beyond a reasonble doubt to the standard beyond all doubt, and thereby defining that standard, I think the prosecutor dwelling on this subject--

THE COURT: Mr. Locascio, I think these trips up to the bench are placing far more emphasis on it than the prosecutor's questions.

I'm overruling the objection.

(Whereupon, the following proceedings were had in the presence and hearing of the jury panel:)

MR. SCHAFFER: Mr. Archer, you raised your hand?

VENIREMAN ARCHER: Yes, sir.

MR. SCHAFFER: You are saying that you would require the State to prove its case beyond all doubt?

VENIREMAN ARCHER: Yes, I would have to be absolutely certain before I would say a man was guilty of murder.

MR. SCHAFFER: Thank you, Mr. Archer.

Anyone else with a response?

Mrs. Barnes and I--excuse me.

Yes, Ma'am?

VENIREWOMAN FLETT: I am Gertrude Flett. I also feel the State would have to prove to me one hundred percent that the defendant is guilty before I could pass judgment.

MR. SCHAFFER: Thank you, Ms. Flett.

Appellant's points (1) and (2) are taken up and after full consideration are found to be meritless, and thus ruled against appellant because:

(1) The record clearly reveals the prosecutor was not defining reasonable doubt, but rather he was discussing it, and such action is permissible. State v. Ball, 622 S.W.2d 285, 288 (Mo.App.1981). The discussion of reasonable doubt, while not condoned by our courts, is not necessarily prejudicial error. State v. Carmack, 633 S.W.2d 218, 219 (Mo.App.1982). It is clear from the above record that the prosecutor was attempting to determine if any prospective juror would require proof "beyond a shadow of a doubt," "beyond all doubt," or "of one hundred percent certainty," because prospective jurors had responded with such answers. Viewed in its entirety, the comments by the prosecutor were "harmless in the context of the case." State v. Callahan, 641 S.W.2d 186, 189 (Mo.App.1982).

(2) It is clear from the above record that the trial court was aware of and attentive to both the manner in which the prosecutor's comments were presented and toward the purpose of such comments, along with the position of appellant as disclosed by appellant's objection. The record...