State v. Herron, KCD

• Decision Date: 03 April 1978
• Docket Number: No. KCD,KCD
• Citation: 565 S.W.2d 743
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David HERRON, Defendant-Appellant. 29169.
• Court: Missouri Court of Appeals

Page 743

565 S.W.2d 743

STATE of Missouri, Plaintiff-Respondent, v. David HERRON, Defendant-Appellant.

No. KCD 29169.

Missouri Court of Appeals,Kansas City District.

April 3, 1978.

Motion for Rehearing and/or Transfer Denied May 1, 1978.

William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

DIXON, Judge.

Defendant appeals a conviction by a jury and a court-imposed sentence on Count I for assault with intent to rob of sixty years and on Count II for stealing of five years. Both sentences were imposed by the court because of the charge and proof that the Second Offender Act, § 556.280 RSMo 1969, applied.

Defendant asserts error on the part of the trial court in denying two motions for a mistrial, one such motion being grounded on the trial judge's misdescription of the charge while reading MAI-Cr 1.02 to the jury and the second when a witness volunteered information as to the disarray of the victim's clothes which conceivably could have suggested a sexual assault, a separate crime not charged.

The judgment of conviction is affirmed.

The record demonstrates that the defendant pistol whipped the 86-year-old victim in her apartment and removed a television set from the victim's home. The proof of the guilt of the defendant is clear and convincing. In evidence was a blood-stained gun which the defendant attempted to discard on apprehension. The defendant identified the weapon as his property. The defendant's watch was found in the victim's home, likewise identified by the defendant as to ownership. An eyewitness observed the presence of the defendant at the scene removing a television set. The victim had a fractured nose, fractured eye socket, contusions of the head, and hemorrhages. Testimony showed the victim died of unrelated pneumonia six days after the incident; but, had she lived, she would have lost the sight of one eye. There was a pretrial agreement that the State would, in opening statement say only that she was deceased from pneumonia and it was unrelated to and not attributable in any way to the assault. This was done, and the testimony of the doctor as to the autopsy findings was stipulated so that the jury did not know the autopsy had been performed.

During the reading of MAI-Cr 1.02, the trial court informed the jury the charge was "assault with intent to kill with malice aforethought." No objection was made until after the court had conducted a general voir dire of the jury. Defense counsel then called the court's attention to the inadvertence and requested a mistrial. The court denied the mistrial, but offered to correct the description of the charge. Defense counsel then attempted to pursue a tactic which would avoid a request or acceptance of any relief short of a mistrial. The colloquy between court and counsel is illuminating:

"THE COURT: That objection and request will be denied. The court will, if you want me to, I will reinform the jury, if you're asking for that relief. Having told you that, I will deny your request for mistrial. I will be glad, if you want me to tell them it is assault with intent to rob.

MR. DOAK: I'm afraid any corrective measures the Court takes short of mistrial is going to prejudice this panel even worse. Once again, I am not going to suggest a method for the Court's relief of anything short of what I have asked for. If the Court wishes to do that, that's fine. I just don't see any way (interrupted)

MR. STRAUSS: I wish the Court would instruct them that it's assault with intent to rob, because I was going to say it in my opening statement.

THE COURT: I don't do it unless Mr. Doak wants it done.

MR. DOAK: No, I'm not saying I think it's incumbent upon the Court to do this. I don't think this relief the Court has suggested is going to properly cure the possible prejudice. If the Court wishes to do so, if the Court wishes to take that possible measure, I can't be put in that position of choosing for the Court what course of action to take after this.

THE COURT: I am not asking you to choose for the Court; I have to make that determination. I am asking you whether you are making any further request for the Court to take any further action.

MR. DOAK: I request the Court take whatever action the Court deems fit."

The trial court did not instruct the jury any further with respect to the matter; and, immediately after the voir dire, the prosecutor made his opening statement and informed the jury that the State intended to prove that the defendant assaulted the victim with intent to rob. No evidence was introduced to support any charge of assault with intent to kill, and the instructions reflect that the defendant was being tried for the offense of assault with malice with intent to rob. The defendant argues that the trial court's inadvertent misdescription of the charge was an impermissible modification of MAI-Cr 1.02 and that the court failed to adequately correct the error so that the error was so prejudicial that a mistrial should have been granted.

The court's action was not a modification of MAI-Cr 1.02 but was a factual error in inserting the parenthetical material required under MAI-Cr 1.02 as to the nature of the charge. The cases involving a change in the instructional language are inapposite to the circumstances of this case. That it was a factual error by the trial court cannot be denied, but such a factual error, in order to justify a reversal, must be shown to have been prejudicial to the defendant. The single instance shown in this record of a misdescription of the charge does not, in and of itself, constitute prejudice...