State v. Lumsden
| Decision Date | 14 November 1979 |
| Docket Number | No. 61478,61478 |
| Citation | 589 S.W.2d 226 |
| Parties | STATE of Missouri, Respondent, v. Gerald H. LUMSDEN, Appellant. |
| Court | Missouri Supreme Court |
Linda F. Dycus, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, for respondent.
Appeal from judgment on conviction by a jury of robbery, first degree, transferred from the Court of Appeals, Eastern District, after opinion, to review principally whether the trial court abused its discretion in connection with defendant's voir dire examination of the venire. Affirmed.
Appellant charges the information violated Rule 24.01 in that it did not show the statutory section which proscribes the charged conduct and the section which fixes punishment.
Present Rule 24.01 on which appellant relies became effective January 1, 1977. The information in question was filed July 30, 1975 at which time former Rule 24.01 was applicable. Former Rule 24.01 did not require, as does the present rule, that the information contain statute references for offense charged and punishment, and no prejudice appears from their absence in this case. State v. Deloch, 554 S.W.2d 559 (Mo.App.1977).
Appellant also charges the information is deficient in that it purports to charge defendant with first degree robbery but that he was actually tried for first degree armed robbery. He argues that because the information did not mention a weapon, he was tried, convicted, and sentenced for an offense not charged.
Defendant was charged, tried, convicted, and sentenced for robbery in the first degree under § 560.120 RSMo 1969. First degree robbery thus charged is committed by putting a victim in fear. The requisite element of fear was charged in the information, and defendant used a gun as his means of creating such fear. It is not necessary that the means of creating the fear be charged in the information. State v. Reed, 412 S.W.2d 187 (Mo.1967). Also, by reason of the foregoing, absence of a charge that a gun was used to create fear in the victim did not provide a ground of error in admission of the gun into evidence. State v. Crockett, 543 S.W.2d 314 (Mo.App.1976).
Appellant contends the evidence was insufficient to sustain a conviction. He argues that because the robber was shown to have worn a baseball hat, sunglasses, and bandages during the robbery, no positive identifications were made, and his conviction therefore rested on insufficient circumstantial evidence.
When a conviction rests on circumstantial evidence, facts and circumstances to establish guilt must be consistent with each other, consistent with guilt of the accused and inconsistent with any reasonable theory of his innocence; in such cases the evidence need not be conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence. State v. Lee, 556 S.W.2d 25 (Mo. banc 1977).
Satisfaction of the foregoing requirement and sufficiency of evidence are demonstrated by evidence from which a jury reasonably could find that: On January 1, 1975, at 6:30 a. m., a man wearing a baseball hat, overcoat, sunglasses and bandages over part of his face, entered Sambo's Restaurant in St. Charles County. He pointed a pistol at a waitress-clerk, and ordered her to put money from the cash register into a paper bag. She did as directed, and put some $1,480 in five, ten, and twenty dollar bills into the bag. The robber took the bag and was observed by a number of witnesses to leave the restaurant, enter a white 1964 Chevrolet, drive to Interstate Highway 70, and proceed on that highway. Two restaurant employees followed the car and saw police who had been alerted to the robbery, stop it on the Missouri River bridge at St. Charles. Inside the car was a paper bag containing $1,480 in five, ten, and twenty dollar bills, the baseball hat, an automatic pistol, and white adhesive tape. The driver was wearing an overcoat of the same description as that worn by the robber at the holdup. He was not positively identified as the robber except he was said to match the robber's general appearance. Defendant's version of the circumstances, found incredible by the jury, was that he had been at Sambo's but when he saw the robbery in progress he did not enter. Instead he returned to his car, but before he reached it, a man ran past him and entered the car. The man then left defendant's car and jumped into another which had been driven nearby and that car left. Defendant then got in his car and left the area. He didn't notice the bag of money in the front portion of his car and didn't know how the gun got under his seat.
The principal question arises from appellant's charges that the court's rulings unduly restricted defendant's voir dire examination.
Such ruling occurred when counsel attempted to question the panel on the term "reasonable doubt."
MR. HAZELWOOD: Now I anticipate that His Honor will give you certain instructions at the close of the case.
Mr. Schroeder has alluded to those instructions. The Court's going to instruct you that if you believe beyond a reasonable doubt that Mr. Lumsden is guilty, that you will return a verdict of guilty; and we've all watched television and things of that nature, and I just want to go into this a little bit at this time. What does the term 'beyond a reasonable doubt' mean to you?
(The following discussion was held out of the presence of the jury at the bench.)
Appellant contends the trial court erroneously prevented defense counsel from making a full and complete inquiry into the legal qualifications of the jurors.
The purpose of voir dire examination is to enable each party to participate in selection of a fair and impartial jury. To that end, a liberal latitude is allowed in the examination of the panel. State v. Brown, 547 S.W.2d 797 (Mo. banc 1977). Nevertheless, the examination of jurors as to their qualifications is conducted under the supervision of the trial court and the nature and extent of what questions counsel may ask are discretionary with the trial court and the exercise of that discretion will be disturbed on appeal only when the record shows a manifest abuse of that discretion. State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975) cert. denied 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835.
In State v. Smith, 422 S.W.2d 50 (Mo. banc 1967), defense counsel attempted to question the members of the jury panel "as to whether any of them have any personal feelings for or against the rule * * * pertaining to reasonable doubt." The request was denied by the trial court. This court agreed and held that the trial court had not abused its discretion by denying counsel's request to inquire into the panel's feelings regarding the reasonable doubt standard.
MAI-CR 2d 2.20 tells the jury the State's burden is to prove guilt "beyond a reasonable doubt." Notes on Use provide that "No other instruction may be given elaborating further upon or attempting to define the presumption of innocence or reasonable doubt." This direction was affirmed, State v. Lasley, 583 S.W.2d 511, 514 (Mo. banc 1979):
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."
The pattern instruction, accompanying notes on use, and case law demonstrate a policy that reasonable doubt is not to be further defined by the court, let alone by a juror. The trial court's ruling on the questions in this case seeking what reasonable doubt "means" to jurors conforms with this policy. In such circumstances, it may not be said that the trial court's ruling so limiting that line of inquiry constituted a manifest abuse of discretion.
The second ruling charged as error on voir dire occurred when the court refused to allow defense counsel to question jury panelists on their residence and related biographical data previously provided counsel by the circuit clerk's office. Appellant argues this was necessary to "individual communication with each juror." Under the standard of State v. Mudgett, supra, the trial court's refusal to allow counsel to ask panelists questions, the answers to which he already knew, was not an abuse of discretion. See also State v. Scott, 515 S.W.2d 524 (Mo.1974).
Appellant also charges, as a subject of plain error, Rule 27.20(c), that he was denied a fair trial...
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State v. Smith
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