State v. Hill
| Decision Date | 21 January 1975 |
| Docket Number | No. 35877,35877 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Robert L. HILL, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
John C. Bracjman, Public Defender, 20th Circuit, Union, for defendant-appellant.
Preston Dean, Robert M. Sommers, Asst. Attys., Gen., Jefferson City, and G. C. Beckman, Pros. Atty., of Crawford County, Steelville, for plaintiff-respondent.
Defendant was found guilty by jury of murder in the second degree and was sentenced to imprisonment for a term of 24 years. He appeals alleging as error: 1) the trial court's failure to declare a mistrial after a former county prosecuting attorney sat at the counsel table; 2) the trial court's questioning of veniremen on the concept of presumption of innocence of the accused; 3) the trial court's comment on a remark of defense counsel. Defendant acknowledges that the motion for new trial raised by his trial counsel is too general to preserve anything for review but on appeal defendant entreats us to consider his points of error raised on appeal under the plain error rule of Rule 27.20(c), V.A.M.R. We exercise our discretion under Rule 27.20(c) to determine from the record whether there has been a manifest injustice or miscarriage of justice resulting from alleged error at trial, but after review we find none. We affirm the judgment.
The incident had its inception when defendant drove to the home of his landlord, Victor Koepke at Leesburg, to complain about the condition of the leased premises. After exchange of invectives between the two, defendant fatally shot Mr. Koepke. Defendant asserted that the animus was incurred by reason of Mr. Koepke's intransigent attitude on his refusal to properly maintain defendant's home as promised. After the killing, defendant returned to his home where he was arrested by the local law enforcement officers. Defendant admitted to them that he had become virulent and had killed Mr. Koepke.
Defendant's first point of alleged error concerns the presence of the former county prosecuting attorney sitting at counsel's table. After the voir dire examination was completed and the jury sworn, Mr. G. C. Beckham, who had been the county prosecutor at the time of the incident and who had filed the information initiating the case against defendant, joined the prosecutor at the counsel table. At the time of trial, Mr. Beckham, was no longer the prosecutor, but he did not participate in the examination of witnesses or in any argument, nor, apparently, enter an appearance. Defendant's counsel objected to the presence of Mr. Beckham on the ground that he had not been given the opportunity to voir dire the jury on whether any members of the jury had ever employed Mr. Beckham; that since that trial was conducted in a class two county, § 495.150 RSMo 1969, V. A.M.S., 1 would permit defendant to challenge for cause any juror who had employed Mr. Beckham within six months of trial; that no opportunity had been afforded defendant to inquire whether Mr. Beckham had been employed by any prospective juror.
Outside the hearing of the jury, the following exchange occurred:
'MR. HOLLINGSWORTH (defendant's counsel): At this time, Judge, I move that this case be mistried for the ground and reason that my distinguished opponent has been joined at counsel table by a very prominent local attorney, Mr. Cliff Beckham.
Under the circumstances of this case we find no error in the trial court's overruling the motion for mistrial. Defendant knew of Mr. Beckham's interest in the case since Mr. Beckham had signed the information. Defendant was not prejudiced by the trial court's refusal to grant a mistrial, as defendant's counsel could have anticipated or 'might have suspected' Mr. Beckham's presence and possible participation in the case and could therefore have examined the prospective jurors on voir dire as to their employment of him. 2
Defendant's second allegation of error concerns the examination of veniremen regarding the presumption of defendant's innocence. Defendant's counsel interrogated the veniremen as follows:
Only five veniremen indicated an affirmative response to the foregoing and defendant's counsel asked that all others be stricken. However, there was clear indication on the record that most veniremen did not understand defendant's counsel, and he was asked by the trial court to repeat the question as to presumption of innocence. When the question was repeated, all but four of the veniremen positively responded that they presumed the defendant to be an innocent man. The four veniremen were then stricken by the court. Defendant argues that the trial court was in error in requesting defendant's counsel to repeat the...
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