State v. Jordan

• Decision Date: 09 February 1982
• Docket Number: No. 61840,61840
• Citation: 627 S.W.2d 290
• Parties: STATE of Missouri, Respondent, v. Alonzo JORDAN, Appellant.
• Court: Missouri Supreme Court

Page 290

627 S.W.2d 290

STATE of Missouri, Respondent, v. Alonzo JORDAN, Appellant.

No. 61840.

Supreme Court of Missouri, En Banc.

Feb. 9, 1982.

Howard E. McNier, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Appellant and two co-defendants ¹ were charged with second degree murder, § 559.020 and § 565.008, RSMo 1969, and armed criminal action, § 559.225, RSMo 1969, in connection with the killing of one William Sullivan. Co-defendants pled guilty as part of a plea-bargaining arrangement; appellant pled not guilty. He was convicted on both counts, sentenced to life imprisonment on the former count, and ten years imprisonment on the latter count, with such sentences to be served consecutively. This Court has exclusive appellate jurisdiction. Art. V, § 3, Mo. Constitution (as amended 1976).

A detailed recounting of the facts would be of no precedential value, and we set out only those facts necessary for resolution of the issues presented. On October 4, 1978, appellant and co-defendants were asked to leave The Voyager Lounge of the Travel Lodge Motel in St. Louis. Later, in the early morning hours thereof, the auditor of the motel was working at the front desk and saw the victim, William Sullivan, in the lobby apparently intoxicated. Approximately five minutes thereafter, the auditor heard a shot and saw a man he identified as appellant armed with a rifle chasing another man in the parking lot. After telephoning the police, he saw the man with the rifle enter a motor vehicle. The auditor stated that victim Sullivan was shot by appellant during the chase.

A motel guest testified that he saw one of the co-defendants with a rifle standing at the entrance to The Voyager Lounge; and that he located a policeman who came to the motel but failed to find the man with a rifle. It was this officer who found the victim, apparently dead, in a hallway in the motel complex. Another officer on patrol saw three men running to get into a vehicle and observed that one of them appeared to have been carrying a rifle. As the vehicle left, the officers pursued, stopping only to recover a rifle that had been discarded from the vehicle. The officers later stopped the vehicle and found appellant and co-defendants inside.

The only allegation of error to be considered herein arises from certain statements made to the venire (panel) during voir dire. The prosecutor, in apparent anticipation of an attack upon the credibility of the testimony of the co-defendants whom he intended to call as witnesses for the state, made the following statement:

Now, in the particular case we touch first of all upon a problem area for you or me as the case may be. As I have indicated to you this defendant was charged with two other persons, namely George Kyles and James Preston. Mr. Kyles and Mr. Preston have already pled guilty to a reduced charge, and I expect that they will testify or may testify in this case. Now, obviously they're not going to do that out of the kindness of their hearts. I had to make some arrangements with them. In other words, in exchange for my recommending a lower sentence they have agreed to testify as to what they know about this case, as to what they can say about this case, because they were obviously there. They have already pled guilty. Mr. Kyles is probably, because it was my recommendation at the time in view of all the evidence, going to receive a sentence of seven years in the Missouri Department of Corrections. Mr. Preston is going to receive a sentence of two years.

Defense counsel objected to the above, but specifically only as to the probability of what the co-defendants would actually serve, as neither had been sentenced at that time. The objection was sustained. During further questioning of the venire, while inquiring into any prejudice the prospective jurors might have against a co-defendant solely because of his participation in a plea-bargaining agreement, the prosecutor mentioned at least two more times that appellant's co-defendants had pled guilty.

After the close of all evidence and the trial court's conference on jury instructions, the prosecutor revealed to the court that both co-defendants had requested that the plea-bargains be changed. One wished his charge completely dismissed, and the other wanted an assurance of probation. The prosecutor had refused, and the co-defendants had indicated they would not testify as the state desired. He was aware of these facts at the time of the questioned inquiries. Following that explanation, the prosecutor stated he could not have offered the co-defendants as witnesses in good faith, and thereafter he moved the trial court for an in limine order prohibiting defense counsel from commenting in closing argument upon the failure of the state to call the co-defendants as witnesses. The trial court granted the oral motion and instructed the appellant's counsel that: "You may not comment to the jury that they can assume that the state's failure to call these witnesses is that the testimony of Preston and Kyles if given, would be adverse to the state because the witnesses were equally available to the State and to the Defendant."

When the trial court took up appellant's motion for new trial, it was then brought to the court's attention that one of the co-defendants had moved to withdraw his guilty plea prior to the beginning of the trial, and that the prosecutor had knowledge of said motion. The prosecutor acknowledged he knew that withdrawal of the plea was pending, but contended that he was "aware that it was without merit, and it did not affect (co-defendant's) lawyer telling me that the (co-defendant) was still available to testify and would testify." The trial court overruled appellant's motion for new trial.

In his motion for new trial and before this Court, appellant alleges error in the overruling of the motion for new trial on the grounds that it was reversible error (1) for the prosecutor to inform the venire that the co- defendants had pled guilty to reduced charges in exchange for the testimony, and (2) for the trial court to grant the motion in limine restricting the inferences counsel could argue from the state's failure to call the co-defendants as witnesses.

Whether or not appellant's objections, as made, preserved the points for review is questionable; but, we need not extend this opinion by resolving that issue as we believe the matter is for consideration under Rule 29.12(b), ² which should not be: "... routinely invoked; it must be limited to circumstances where manifest injustice or miscarriage of justice has resulted. The plain error rule is intended to be the ultimate repository of an appellate court's power to correct injustice...." State v. Bainter, 608 S.W.2d 429, 431 (Mo.App.1980). "When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from the refusal to invoke the rule." Id. citing State v. Hurtt, 509 S.W.2d 14, 15(3) (Mo.1974).

Appellant does not challenge the sufficiency of the evidence against him; but, in any event, our review of the record indicates a submissible case was presented by the state. However, the evidence of appellant's guilt cannot be described as "overwhelming"; and, the prosecutor's disclosure of the guilty pleas before the venire "injected the venom of prejudice into defendant's right to a fair and impartial trial," State v. Fenton, 499 S.W.2d 813, 816 (Mo.App.1973), an obviously substantial right within the meaning of Rule 29.12(b). Accordingly, we review the allegations under plain error.

"It is well settled that the disposition of the case of another person charged with the same crime is not admissible in the trial of a codefendant." State v. McCarthy, 567 S.W.2d 722, 723 (Mo.App.1978); State v. Johnson, 456 S.W.2d 1, 4 (Mo.1970); State v. Aubuchon, 381 S.W.2d 807, 815-16 (Mo.1964). "In this state it is deemed error, usually reversible error, to show in evidence or tell the jury that a jointly accused defendant has been convicted or plead guilty." State v. Fenton, 499 S.W.2d 813, 816 (Mo.App.1973) (Emphasis added).

The decision in Fenton is an example of our state's attitude toward disclosure to the jury of a co-defendant's plea or conviction. There, the prosecutor stated that co-defendants of the defendant on trial would testify to their pleas of guilty. This was during an outline of the state's case in opening argument. ³ The court held the prosecutor's statements to be improper and prejudicially erroneous, reflecting the "elementary principle of justice that one man shall not be affected by another's act or admission, to which he is a stranger," 499 S.W.2d at 816. It further stated that it would "have no hesitancy in this case to invoke the provisions of the plain error rule," though it was deemed not necessary.

In State v. Dunn, 615 S.W.2d 543 (Mo.App.1981), during voir dire the prosecutor was attempting to prepare the jury for a co-defendant's appearance as a witness for the state and to determine the effect his plea-bargain would have upon his credibility by disclosing the plea and plea-bargain. 615 S.W.2d at 548. Counsel for defendant objected to the questions asked, but only as to the form and not the substance, with his objection being sustained. As the Eastern District noted: "It is apparent that it was defendant's trial strategy to use this fact (the plea-bargain) to attack the credibility of (the co-defendant). This his counsel did skillfully in crossexamination and in argument." 615 S.W.2d at 549 (Emphasis added).

In Dunn the court continued: "This portion of the voir dire on the part of the State was not well thought out nor artfully prepared and it was improper." 615 S.W.2d at 549. Yet, the court did not reverse...