State v. Marshall

• Decision Date: 05 September 1978
• Docket Number: No. 39072,39072
• Citation: 571 S.W.2d 768
• Parties: STATE of Missouri, Respondent, v. Larry James MARSHALL, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 768

571 S.W.2d 768

STATE of Missouri, Respondent, v. Larry James MARSHALL, Appellant.

No. 39072.

Missouri Court of Appeals, St. Louis District, Division Four.

Sept. 5, 1978.

Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.

Application to Transfer Denied Nov. 6, 1978.

Robert W. Meyers, Shaw, Howlett & Schwartz, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

ALDEN A. STOCKARD, Special Judge.

Larry James Marshall was charged by indictment in three counts with sodomy, rape, and robbery in the first degree. He was found guilty by a jury of each offense and he has appealed. We affirm.

We shall relate only such facts as are essential to an understanding of the issues.

Bathilda Lewis lived alone in an apartment at 4355 Maryland in the City of St. Louis. In the early morning hours of April 25, 1976, when she was expecting a girl friend to come by her apartment, the door buzzer sounded and she spoke with a person on the intercom whom she thought was her girl friend. She then operated the electric device which unlocked the front door to the building, and she unlocked and opened the door to her apartment. A few minutes later a black male entered her apartment, threw a jacket over her head, and committed the offenses with which appellant was charged. During the struggle between them, the assailant pulled the robe Miss Lewis was wearing up over her head and dropped his jacket to the floor. Apparently in an effort to persuade her assailant to leave Miss Lewis told him that the door to her apartment was unlocked, that she was expecting a visitor, and that when the visitor arrived she would enter. The assailant then pushed Miss Lewis through a door into a bedroom and, according to Miss Lewis, said "he was going out to check the door to see if it actually locked." He opened the apartment door and went into the hallway and the door automatically locked behind him. He apparently realized that he had left his jacket in the apartment and he pounded on the door in an unsuccessful attempt to regain entrance. In the pocket of the jacket there was a bottle of pills which had been prescribed for appellant. The police lifted fingerprints in the apartment, and a police officer, testifying as an expert, stated that a fingerprint found on a doorknob in the apartment was made by appellant's right index finger.

Defendant interposed the defense of alibi and he testified that on the night of April 24, 1976, he attended a dance in Wellston, and after visiting some friends until 3:30 o'clock the next morning he went to another party where he stayed until 4:30 or 4:45 o'clock. He then went to his automobile and discovered that his Levi jacket and a pair of shoes were missing, and he went immediately to the Seventh District Police Station to report the theft.

During the voir dire examination of the jury panel the prosecutor made the following statement:

"Some of the evidence in this case will be what is called circumstantial evidence. I can't get into specifically what the evidence in the case is at this time, but some of it will be circumstantial and some of it will be direct. And the distinctions will be explained to you. For example, a fingerprint would be circumstantial evidence. Some kind of physical test or laboratory test would be circumstantial evidence. Direct evidence would be the testimony of someone who readily observes something. Now, a lot of our case will be circumstantial evidence. Do all of you understand that circumstantial evidence is just as strong legally as direct evidence; that a conviction can be had on circumstantial evidence solely; it can be had on direct evidence solely or on a combination of both?"

Only inferentially was an objection made to this statement, but appellant asked that the jury be told that "they must find beyond a reasonable doubt and they must consider all reasonable hypotheses * * *." A discussion followed between court and counsel in which the court commented that it did not "exactly know what the Defendant's position (was) * * *." The court concluded that "to clear up any possible confusion" it would read the first part of MAI 3.42, and it then informed the jury as follows:

"Ladies and gentlemen of the jury, with regard to circumstantial evidence, it 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."

Appellant asserts in his first point that the court "did not adequately explain to the jury and correct the impressions of the jury panel as to the nature of circumstantial evidence (resulting from) the circuit attorney's phrase that circumstantial evidence is just as strong as direct evidence," and the reading of only "the first paragraph of * * * the MAI on circumstantial evidence did not adequately correct this impression upon the minds of the jurors during voir dire."

We mention here that this problem arose as the result of the assistant circuit attorney improperly undertaking to advise the jury, under the guise of voir dire examination, as to what the law is, a practice previously criticized by this court. See State v. Van, 543 S.W.2d 827 (Mo.App.1976). However, appellant's request that the court read to the jury MAI-CR 3.42 on circumstantial evidence during the voir dire examination of the jury was improper. The voir dire examination is not the time to instruct the jury on the law applicable to the case. There was an appropriate objection that could have been made to the improper comments, and in response to such an objection appropriate relief could have been provided by the court. We note that at the proper time for requests for instructions to be made, appellant did not request an instruction on circumstantial evidence and none was given. In view of the unusual circumstances of this occurrence, the action taken by the trial court was probably the best solution; it certainly was not an abuse of discretion and did not result in any prejudice to appellant.

During the voir dire examination it was developed that one of the jurors was acquainted with appellant and that another had gone to school with and knew the assistant circuit attorney who was trying the case. The court commented as follows:

"Gentlemen, the Court does not see any reason in a community as large as the City of St. Louis why any juror should know either one of the attorneys or the parties to the lawsuit. The case law in Missouri has been that the juror is not a determiner of his own qualifications; rather, the Court is the final determiner of any qualifications of the juror. Therefore, to avoid any possibility of prejudice or even the appearance of any possibility of prejudice or impartiality, the Court, on its own motion is going to order stricken for cause both of these jurors; namely, Juror No. 516, Karen Walker, who does know the Defendant, and Juror No. 351, Barry McEney, who went to school with Mr. Ravetta (the assistant circuit attorney)."

Appellant interposed no objection to this action of the court. He stated only that he "would have found them both to have been qualified," and that "it's within the sound discretion of the Court, but (he) believe(d) that they both would have been qualified panelists."

A specific objection which calls the attention of the trial court to the ground or reason for the objection is required to preserve an issue for appellate review. State v. Paglino, 319 S.W.2d 613 (Mo.1958...