State v. Lasley

• Decision Date: 27 June 1979
• Docket Number: No. 60897,60897
• Citation: 583 S.W.2d 511
• Parties: STATE of Missouri, Respondent, v. Thomas William LASLEY, Appellant.
• Court: Missouri Supreme Court

Page 511

583 S.W.2d 511

STATE of Missouri, Respondent, v. Thomas William LASLEY, Appellant.

No. 60897.

Supreme Court of Missouri, En Banc.

June 27, 1979.

Rehearing Denied July 17, 1979.

Robert A. Cosentino, Asst. Public Defender, 21st Judicial Circuit, St. Louis County, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.

Robert Popper, Willard B. Bunch, David B. Dysart, Kansas City, Gerald M. Handley, Kansas City, for amicus curiae.

WELLIVER, Judge.

Appellant was convicted of burglary, second degree and stealing, § 560.110, RSMo 1969, in the Circuit Court, County of St. Louis. He was sentenced to a prison term of eight years for the burglary and five years for the stealing offense, the two terms to run concurrently. By opinion filed June 13, 1978, the Missouri Court of Appeals, St. Louis District, Division I, reversed the judgment of conviction.

We ordered transfer to this court to determine the question of whether we should overrule the long-established precedent of requiring the giving of the circumstantial evidence instruction ¹ in certain criminal cases. We decide the case as though received on direct appeal. Mo.Const. art. V, § 10; Rule 83.09. In so doing, we utilize without quotation marks substantial portions of the opinion of the Court of Appeals. (McMillian, J.) We reverse the trial court.

On May 26, 1976, at 8:00 a. m., Mr. Ronald Danna left his home in Babler Woods Subdivision in west St. Louis County after securely locking the premises. At approximately 9:40 a. m., St. Louis County Police Detectives William Hines and Richard Wilhelm, conducting mobile surveillance of the Babler Woods area in unmarked police cars, noticed the appellant in a carryall van parked at Highway 109 and Babler Woods Drive. A dark blue Buick was also stopped at this point. The detectives saw appellant get out of the van, open the hood and stand to the side of the vehicle. Detective Wilhelm saw the driver and passenger of the Buick walk to where the appellant was standing, briefly engage him in conversation, and return to the Buick. The Buick then drove into Babler Woods Subdivision. Appellant stood by the van for three to five minutes "just kind of looking up and down the highway . . . ." He then closed the hood and drove the van into Babler Woods Drive. About twenty minutes later, Detective Hines drove down Babler Woods Drive to see where the two vehicles had gone. As Detective Hines passed Mr. Danna's house, which cannot be seen from the road, he saw the Buick and the van driving out of Mr. Danna's driveway. He noticed that the driver of the Buick was wearing gloves. Detective Hines and Detective Wilhelm, in separate cars, followed the two vehicles out of the subdivision and down Highway 109 to the driveway to the house at 808 Pond Road, where both vehicles stopped and parked. The occupants of the Buick again approached the appellant and spoke to him. The Buick then pulled into the driveway and the van remained parked beside the roadway. The appellant raised the hood of the van and stood in front of it looking down the road. In the interim, Detective Hines radioed fellow Detective Stewart and instructed him to ascertain whether the Danna residence had been burglarized. When the two vehicles proceeded south on Pond Road, Detective Hines radioed for assistance from a marked police car to stop the vehicles for questioning. Patrolman Corless responded and with the aid of Detectives Hines and Wilhelm stopped the two vehicles. Both appellant and the driver of the Buick were asked to produce identification. Detective Wilhelm looked in the window of the van and saw a television antenna protruding from beneath a blanket. Meanwhile, Detective Stewart radioed Detective Hines and informed him that there had been a break-in at the Danna residence, the house had been "ransacked," and a television appeared to have been taken. Detective Hines informed Wilhelm and Corless of the break-in, and they placed the appellant under arrest. The appellant was not arrested prior to Detective Stewart's radio transmission. Police thereafter searched the appellant's van and seized certain items, including a blanket and television, later identified by Mr. Danna as among goods taken from his house.

On appeal, appellant raises three points: that the trial court erred (1) in failing to give the "circumstantial evidence" instruction; (2) in failing to declare a mistrial after the prosecutor commented on the lack of a driver's license in appellant's possession at the time of his arrest; and (3) in failing to suppress the items seized from the appellant's van on the ground that there was no reason to stop the appellant and search his vehicle.

We first consider the appellant's argument that the trial court erred in not giving MAI-Cr 3.42, the "circumstantial evidence" instruction, which reads as follows:

Circumstantial evidence is the proof of facts or circumstances that give rise to a reasonable inference of other facts that tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.

You should not find the defendant guilty unless the facts and circumstances proved are consistent with each other and the guilt of the defendant, and inconsistent with any reasonable theory of his innocence.

The second paragraph of the instruction is variously referred to as a "reasonable hypothesis" or "multiple hypothesis" or "negative-exclusion" instruction.

The notes on the use of MAI-Cr 3.42 state that the trial judge is required to give the instruction if the evidence in a case is wholly circumstantial and the defendant properly requests the instruction under Rule 20.02. See State v. Hoskins, 515 S.W.2d 502, 503 (Mo.1974); State v. Regazzi, 379 S.W.2d 575, 579 (Mo.1974) (per curiam).

The respondent does not question that settled Missouri law requires that (if properly requested) MAI-Cr 3.42 be given if the evidence in a case is wholly circumstantial. Instead, the respondent requests that this court abrogate MAI-Cr 3.42 and adopt the federal rule as stated in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), Rehearing denied 348 U.S. 932, 75 S.Ct. 334, 99 L.Ed. 731.

In Holland, the defendants were convicted of income tax evasion under § 145 of the Internal Revenue Code. The defendants argued that since the evidence was circumstantial, the trial judge should have given an instruction stating that where the government's evidence is circumstantial it must exclude every reasonable hypothesis other than that of guilt. Mr. Justice Clark, speaking for a unanimous court, upheld the trial judge's refusal to give a "reasonable hypothesis" instruction, stating that "the better rule is that Where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect." 348 U.S. at 139-40, 75 S.Ct. at 137 (emphasis added). The trial judge in Holland had defined "reasonable doubt" as "the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon." Id. at 140, 75 S.Ct. at 138. While the Court indicated that "reasonable doubt" might better have been defined as the kind of doubt that would cause a person to hesitate to act rather than to be willing to act, the Court concluded that on the whole, the instruction correctly conveyed the meaning of the phrase. ²

Mr. Justice Clark required as a condition precedent to dispensing with the reasonable hypothesis instruction that the jury be properly instructed on the standards for reasonable doubt. It is this condition precedent which causes the problem for Missouri courts. The law in Missouri is well-settled that a judge may not comment upon the phrase "reasonable doubt" and the notes on the use of MAI-Cr 2.20 forbid a trial judge from giving any other instruction that elaborates on, or attempts to define, "reasonable doubt." State v. Amerson, 518 S.W.2d 29, 32 (Mo.1975); State v. Taylor, 486 S.W.2d 239, 244 (Mo.1972); State v. Lafferty, 416 S.W.2d 157, 161 (Mo.1967).

Respondent seeks to harmonize the requirement of Holland and existing Missouri law. Respondent's Supplemental Brief at 11 states that "the overwhelming majority of jurisdictions when confronted with the issue (whether the reasonable hypothesis instruction should be abrogated) have decided to excise the 'reasonable hypothesis' instruction." Unlike Missouri, most of the jurisdictions cited by respondent permit jury instructions to define the phrase "reasonable doubt." Most of the cases from other jurisdictions cited by the respondent indicate that some sort of elaboration on the phrase "reasonable doubt" was made at the trial level, and hedge the abrogation of the circumstantial evidence instruction with the qualification that it is not needed where the jury is adequately instructed on the standards for reasonable doubt. State v. Gosby, 85 Wash.2d 758, 539 P.2d 680, 684, 686 (banc 1975); State v. Jackson, 331 A.2d 361, 365 (Me.1975); State v. Draves, 18 Or.App. 248, 524 P.2d 1225, 1227 n. 1 (1974); State v. Wilkins, 215 Kan. 145, 523 P.2d 728, 735 (1974); Murray v. State, 249 Ark. 887, 462 S.W.2d 438, 442-43 (1971); State v. Harvill, 106 Ariz. 386, 476 P.2d 841, 846 (banc 1970); Allen v. State, 420 P.2d 465, 468 (Alaska 1966). See also Henry v. State, 298 A.2d 327, 330 (Del.1972); Vincze v. State, 86 Nev. 546, 472 P.2d 936, 938 (1970); State v. Fiorello, 36 N.J. 80, 88 n. 1, 174 A.2d 900, 904 n. 1 (1961), Cert. denied 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962). The majority of states currently use a circumstantial evidence instruction, including twelve jurisdictions in which, within the last decade, the state supreme court has reaffirmed its use. State v. Graven, 54 Ohio St.2d 114, 374...