State v. McCall

• Citation: 602 S.W.2d 702
• Decision Date: 25 March 1980
• Docket Number: No. 40259,40259
• Parties: STATE of Missouri, Respondent, v. Burdell McCALL, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 702

602 S.W.2d 702

STATE of Missouri, Respondent, v. Burdell McCALL, Appellant.

No. 40259.

Missouri Court of Appeals, Eastern District, Division Two.

March 25, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 20, 1980.

Application to Transfer Denied Sept. 9, 1980.

Thomas C. Mummert, III, Huck & Kasten, Inc., Joseph Webb, Asst. Public Defender, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Michael P. Donegan, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

PUDLOWSKI, Judge.

Burdell McCall was charged with the first degree murder of Marie Winchester in violation of § 565.003, RSMo Supp.1977, ¹ with the first degree robbery of Marie Winchester in violation of § 560.120, RSMo 1969 ² and with armed criminal action against Marie Winchester in violation of § 559.225, RSMo Supp.1976. ³ A substitute information in lieu of indictment was filed. The jury found McCall guilty of manslaughter on Count I, first degree robbery on Count II and armed criminal action on Count III. He was sentenced to ten years for manslaughter, twenty-five years for robbery in the first degree and five years for armed criminal action each to be served consecutively.

Defendant claims the court erred by failing to grant defendant's motion for mistrial because of juror misconduct. Defendant alleges he overheard two jurors discussing his guilt before the cause was submitted to the jury. He further states that he was prejudiced because one of the accused jurors was questioned on the stand in front of the defendant, so that the defendant was placed in the position of accusing a juror of misconduct causing that juror to be prejudiced against him.

It is the duty of jurors not to converse among themselves or to form or express any opinion about the case until the cause is finally submitted to them. § 546.230, RSMo 1969; MAI-CR No. 1.08(a). If juror misconduct takes place during the course of a felony trial and before the jury's retirement for deliberation, the verdict must be set aside unless the state sustains its burden of showing a lack of improper influence. State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (Mo.1953); State v. Mullen, 528 S.W.2d 517 (Mo.App.1975).

Defendant has failed to meet the required first prong of this two-prong test. He failed to show juror misconduct. Defendant's assertion that he overheard two jurors discussing his case before the case had gone to the jury raised a question of fact. This question of fact was to be determined by the court. Defendant furnished, along with his testimony, the affidavits of several prisoners, namely, Melvin Leroy Tyler, McKinley Robinson and Gary Riley, who allegedly overheard the conversation. In addition a deputy sheriff and one of the accused jurors were called to testify. The resolution of the question turned on who was to be believed. It is not for this court to determine the credibility of witnesses. State v. Williams, 376 S.W.2d 133 (Mo.1964). That is the function of the trial court who is in a better position to observe the demeanor of the witnesses. The trial court did not believe the defendant. The trial court's findings are supported by substantial and competent evidence. Not only did the accused juror deny talking about the case, but her responses to the questions propounded by the court, the prosecutor and defense counsel, revealed no internal inconsistencies in her testimony.

Defendant claims that because one of the jurors accused of misconduct was questioned in front of him that juror was poisoned against him. Yet there is no evidence in the transcript to support this allegation. The determination of prejudice on the part of a juror is within the sound discretion of the trial court. State v. Mullen. An appellate court may overturn the denial of a motion for mistrial only when it finds a clear abuse of discretion. State v. Carlos, 549 S.W.2d 330 (Mo. banc 1977); State v. Schlagel, 490 S.W.2d 81 (Mo.1973). Because there is no evidence that the juror was poisoned against the defendant, we are unable to find an abuse of discretion.

Defendant's second contention is that the court erred by failing to grant defendant a mistrial due to the prosecutor's references to defendant's failure to testify. The prosecutor told the jury in closing arguments:

The burden of proof is on the state of Missouri and the burden of proof does not shift. I will agree with that. But keep this in mind the state presented sixteen witnesses and one or two stipulations and then the state rested its case. At that point Mr. Webb (defense counsel) and the defendant had an opportunity to present evidence. Did you hear any evidence?

Later the prosecutor remarked: "Again if he wanted some evidence to contradict that, Mr. Webb (had) the opportunity to put on evidence. He could have contradicted it."

And finally the prosecutor exhorted the jury: "The pants (defendant) was wearing that morning when Marie Winchester's throat was cut are just mysteriously missing. And Burdell McCall offers no explanation as to where they were to the police."

It is improper for the prosecution to comment on the accused's failure to testify. State v. Garcia, 357 S.W.2d 931 (Mo.1962). Counsel in court should rigidly refrain from making any reference to the failure of the accused to testify. Although it is impermissible for a prosecutor to comment on the defendant's failure to testify, it is not impermissible for the prosecutor to comment on the defendant's failure to offer evidence. State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972). The ultimate test of whether the prosecutor commented on the defendant's failure to testify is whether the jury's attention was called to the fact that the accused did not testify. State v. Frankoviglia, 514 S.W.2d 536 (Mo.1974); State v. Shields, 391 S.W.2d 909 (Mo.) cert. denied, 382 U.S. 966, 86 S.Ct. 457, 15 L.Ed.2d 369 (1965). Direct and certain references to the failure of the accused to testify constitute reversible error. State v. Rothaus, 530 S.W.2d 235 (Mo. banc 1975).

The first two comments "At that point Mr. Webb and the defendant had an opportunity to present evidence . . ." and "Again if he wanted some evidence to contradict that, Mr. Webb (had) the opportunity to put on evidence . . ." didn't call to the jury's attention the appellant's failure to testify. It was a comment on the defendant's failure to offer evidence which is permissible. State v. Sechrest, 485 S.W.2d 96 (Mo.1972); State v. Pruitt.

Nor was the last comment "Burdell McCall offers no explanation as to where (the pants) were to the police," a direct reference to the defendant's failure to testify. It was in fact a misstatement of fact. During the trial the prosecution introduced evidence that the defendant was interrogated while in police custody and that during interrogation the defendant had admitted that he wore a green pair of pants on August 6, the day of the crime. The police confronted the defendant with a pair of green pants and asked if they were the pants he wore on August 6. He replied, "No." When told that the green pants were the only pair of green pants the police were able to find among his possessions, the defendant explained he did not know what happened to the green pair of pants he was wearing. Thus the prosecutor was only remarking on the inadequacy of the defendant's explanation to the police as to the whereabouts of the defendant's pants and the prosecutor was not referring to the defendant's failure to testify. Defendant's second point of error fails.

Defendant's third contention is the court erred by failing to sustain the defendant's motion for judgment of acquittal at the end of the state's case and at the end of the trial for the following reasons: (1) the state failed to prove first degree murder and robbery in the first degree because the state failed to prove property was taken from the decedent; (2) there was insufficient evidence of murder and (3) the state failed to prove armed criminal action as it was not proven defendant had a weapon.

The gist of defendant's complaint is that the wholly circumstantial case against defendant was insufficient to support a conviction.

In determining the sufficiency of evidence on a motion for judgment of acquittal, the court accepts as true all of the evidence in the record which tends to prove the defendant's guilt together with all the favorable inferences which can reasonably be drawn from that evidence and rejects all contrary evidence and inferences. State v. Perkins, 382 S.W.2d 701 (Mo.1964). The same standard is applied in determining the sufficiency of evidence to convict. State v. Reed, 453 S.W.2d 946 (Mo.1970).

When a conviction is based solely on circumstantial evidence, the facts and circumstances relied on by the state to establish the defendant's guilt must be consistent with each other, consistent with the guilt of the accused and inconsistent with any reasonable theory of his innocence. 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), vacated on other grounds, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979); State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). Thus evidence which merely raises a suspicion that the accused did commit a crime is insufficient to support a conviction. State v. Bunton, 453 S.W.2d 949 (Mo.1970); State v. Castaldi, 386 S.W.2d 392 (Mo.1965). The state must prove every essential element of the offense. State v. Strong, 339 S.W.2d 759 (Mo.1960); State v. Gillman, 329 Mo. 306, 44 S.W.2d 146 (1931).

The state presented ample evidence to support a conviction and thus the motion was properly denied. The state showed that the defendant threatened the decedent two or three days before the crime was committed. Defendant's cousin testified she observed the defendant...