State v. Howard

Decision Date13 September 1976
Docket NumberNo. 59353,59353
Citation540 S.W.2d 86
PartiesSTATE of Missouri, Respondent, v. Michael Richard HOWARD, Appellant.
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Scott A. Raisher, and Charles L. Howard, Asst. Attys. Gen., Jefferson City, for respondent.

James C. Jones, St. Louis, for appellant.


Appellant, Michael Richard Howard, was convicted of rape under § 559.260, RSMo 1969, and of robbery in the first degree under § 560.120, RSMo 1969, in the Circuit Court of the City of St. Louis, and his punishment was assessed at ten years and five years, with the sentences to run consecutively. Following rendition of judgment and imposition of sentences, an appeal was perfected to the St. Louis District of the Court of Appeals. In that Court the conviction was affirmed but the cause was certified to this Court by a dissenting judge under Mo.Const. Art. V, § 10. We determine the cause the same as on original appeal. Mo.Const. Art. V, § 10.

Appellant asserts the trial judge erred when, in the presence of the jury, he commented on appellant's 'failure to testify.'

At the close of all the evidence, as the trial judge proceeded to read his instructions to the jury, the following transpired:


'The State of Missouri, by the Substitute Information in Lieu of Indictment, charges the defendant, Michael Richard Howard--

'THE DEFENDANT: My name is Michael Richmond Howard.

'THE COURT: I understand that. You indicated your name is Richmond.

'THE DEFENDANT: No, he said that.

'THE COURT: The papers indicate that the name is Michael Richard Howard.

'THE DEFENDANT: I'm going to be wrong--

'THE COURT: Now you were given the opportunity to take the stand. You're going to keep quiet through these proceedings or you're going to have to leave the courtroom.' (Emphasis ours.)

Appellant concedes that his assertion of error was not raised at trial and was not preserved in his motion for a new trial, but urges that he is entitled to relief by virtue of the provisions of Rule 27.20(c), which reads as follows:

'Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of injustice has resulted therefrom.'

In State v. Meiers, 412 S.W.2d 478, 480, 481 (Mo.1967), Division No. 1 of this Court said:

'* * * Since its adoption we have invoked Rule 27.20(c) on a case to case basis to prevent 'manifest injustice or miscarriage of justice,' and we shall continue to do so where substantial rights are affected whether or not the error is '* * * raised in the trial court or preserved for review, or defectively raised or preserved * * *.' But there must be a sound, substantial manifestation (not perceivable here), a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked. We shall not invoke the rule in every case where it is claimed for the first time on appeal that this or similar state or federal constitutional rights have been violated, or for that matter, in every case where it may appear for the first time on appeal that such rights in fact have been violated.'

In State v. Ellifrits, 459 S.W.2d 293, 297 (1970), this Court en Banc said:

'precedents are of little value in determining when relief should be granted under the plain error rule. And that is particularly true where, as here, no constitutional question is involved. * * * The rule to be followed is summarized in State v. Patterson, Mo.Sup., 443 S.W.2d 104, to the effect that we will review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.'

It has been suggested that relief should always be given under Rule 27.20(c) when a 'constitutional' error is involved. We do not agree. Even a federal constitutional error may be considered harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We will continue to 'review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.'

We have reviewed the whole record in this case and believe, under the facts and circumstances therein disclosed, that the trial judge's comment, in the presence of the jury, resulted in manifest injustice.

We agree with counsel for appellant that the comment constituted a direct and certain reference to the failure of appellant to testify, and violated Art. I, § 19 of the Missouri Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

In addition, and more importantly in ruling the 'plain error' question in this case we believe the comment could have effectually shifted the burden of proof from the State to the appellant.

In State v. Malone, 327 Mo. 1217, 39 S.W.2d 786 (1931), this Court exhaustively reviewed the subject of burden of proof in a criminal case. The burden of proof is on the State throughout the trial to establish by evidence the guilt of the accused beyond a reasonable doubt.

We are of the opinion that the comment made by the trial judge, while in the process of instructing the jury, was prejudicially erroneous. Here, the jury could reasonably have understood the judge's remark to mean that appellant was guilty because he declined 'the opportunity to take the stand.' In these circumstances, it is reasonable to believe that the presumption of innocence of the accused was violated, that the jury could have understood that the burden of proving his innocence was on the accused, and that the accused was deprived of a fair and impartial trial. The historical significance of approving such a probable deprivation of rights compels us to hold that manifest injustice resulted here. (Cf. State v. Embry, 530 S.W.2d 401 (Mo.App.1975).)

The judgment is reversed and the cause remanded.

SEILER, C.J., and MORGAN and HENLEY, JJ., concur.

HOLMAN, J., dissents.

FINCH, J., dissents in separate dissenting opinion filed.

BARDGETT, J., dissents and concurs in separate dissenting opinion of FINCH, J.

FINCH, Judge (dissenting).

I must respectfully dissent.

After the evidence was concluded, the trial court was going to instruct the jury. Introductory thereto the court started to tell the jury just what defendant was charged with having done. It got only as far as giving defendant's name when the defendant interrupted, saying that his middle name was Richmond instead of Richard. The court then observed that the papers in the case gave his name as Michael Richard Howard and defendant interrupted again. The court then said to the defendant: 'Now you were given the opportunity to take the stand. You're going to keep quiet through these proceedings or you're going to leave the courtroom.' The court then told the jury what defendant was charged with in Counts I and II after which it read the instructions to the jury.

This was not an instance wherein the court said to the jury, either expressly or by inference, that in determining guilt or innocence of defendant it could or should take into account his failure to take the witness stand and testify. The court was not saying that defendant had not given his version of the alleged robbery and rape and that his silence could or should be used against him. The court was not addressing the subject of guilt or innocence. Instead, the incident involved a dispute over defendant's middle name. Defendant insisted on arguing the question and the court, in order to silence him and permit the instructions to be read, made the foregoing remark. It did not say to defendant or to the jury that defendant has remained mute and that can be used against him. It said only 'Don't interrupt. Be quiet. You could have explained earlier about your name but it is too late.'

I am unable to find in the foregoing any violation of the fifth or fourteenth amendments...

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23 cases
  • State v. Hamell
    • United States
    • Missouri Court of Appeals
    • October 18, 1977
    ...(Mo.1970). Such determination is made on a case by case basis after a review of all the facts and circumstances. State v. Howard, 540 S.W.2d 86, 87(1) (Mo.1976). In this case, defendant's guilt was established by overwhelming evidence. There was a positive identification, defendant's palm p......
  • State v. Brandolese
    • United States
    • Missouri Supreme Court
    • June 30, 2020
    ...this Court previously rejected the argument that constitutional violations are subject to a different plain error analysis in State v. Howard , 540 S.W.2d 86 (Mo. banc 1976). In Howard , the defendant sought plain error review after the circuit court commented on the defendant's failure to ......
  • State v. Smith
    • United States
    • Missouri Supreme Court
    • December 12, 1989
    ...12 (Mo.1975); State v. Moesch, 738 S.W.2d 585, 587 (Mo.App.1987). However, reviewing the matter ex gratia for plain error, see State v. Howard, 540 S.W.2d 86, 87 (Mo. banc 1976), we note that such a contention has previously been rejected by this Court and the United States Supreme Court. S......
  • State v. Norris
    • United States
    • Missouri Court of Appeals
    • February 13, 1979
    ...upon the failure of a defendant to testify is barred. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Howard, 540 S.W.2d 86 (Mo.banc 1976). To require a defendant to be sworn in front of a jury and then invoke the 5th Amendment would be more prejudicial. ......
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