State v. Minor

• Decision Date: 27 September 1977
• Docket Number: No. 59840,59840
• Citation: 556 S.W.2d 35
• Parties: STATE of Missouri, Respondent, v. Eugene MINOR, Appellant.
• Court: Missouri Supreme Court

Page 35

556 S.W.2d 35

STATE of Missouri, Respondent, v. Eugene MINOR, Appellant.

No. 59840.

Supreme Court of Missouri, en banc.

Sept. 27, 1977.

Rehearing Denied Oct. 11, 1977.

Lee M. Nation, Kansas City, for appellant.

Nanette R. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Charged by indictment with robbery first degree with a deadly and dangerous weapon and felony-murder: robbery, defendant was convicted on each count and sentenced under the Second Offender Act to consecutive terms of fifty years and life imprisonment, respectively. Defendant appealed to the Missouri Court of Appeals, Kansas City district, and raised questions of constitutional construction falling within the exclusive appellate jurisdiction of the Supreme Court under Mo.Const. Art. V, § 3, as amended in 1976. The cause was transferred here prior to opinion.

Seven assignments of error are presented: (1) Failure to quash the jury panel because Missouri's jury selection process systematically excludes women; (2) Erroneous joinder and refusal to sever the two felony charges; (3) Wrongful refusal to grant mistrial following improper prosecutorial statement; (4) Improper sentencing under the Second Offender Act when the trial court failed to make findings sufficient to invoke its application; (5) Failure to give defendant's requested verdict directing instruction to the effect that defendant had withdrawn from the robbery before the murder and hence was not guilty of felony murder; (6) Failure to give instruction MAI-CR 1.08 before each recess; (7) Failure to give instruction MAI-CR 2.70, admonishing the jury to consider the law and evidence as to each count separately.

Sufficiency of the evidence not being raised, a brief statement will suffice at this point, though additional facts pertinent to individual points will be supplied when necessary. On January 2, 1975, defendant entered Traxler's Pharmacy in Kansas City with an accomplice; brandishing a revolver, he ordered the store owner and a customer to get down and began to rake drugs into a pillow case. During the robbery another accomplice entered, warning that the police had arrived. The robbers ran into the back room where the rear door was located but it was firmly locked. Two officers of the Kansas City Police Department had come to the scene and one covered the back door from outside, the other officer, Mestdagh, entered the store. Mestdagh went through the store to the back room where scuffling was heard followed by the sound of three shots. Almost immediately defendant and another of the robbers emerged from the room and were apprehended near the store as they attempted to flee. Mestdagh's body, riddled by three bullets, was found in the back room.

I

Defendant first contends the trial court erred in failing to quash the panel because Missouri's jury selection process, Mo.Const. Art. I, § 22(b) and § 494.031(2), RSMo Supp. 1975, systematically excludes women from jury service and is therefore unconstitutional, citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.banc 1977), decided concurrently with the case at bar, upheld the challenged constitutional section and its implementing statute which permit women the privilege of declining jury service and that decision is dispositive of this defendant's sex based challenge to the facial validity of the cited sections.

The remaining question is whether from the evidence it has been shown that the Jackson County jury selection process resulted in criminal venires not "representative of the community" and "almost totally male", as those constitutional standards were delineated in Taylor, requiring reversal in this case. By stipulation the evidence presented in the proceeding to quash the jury panel in State v. Lee, 556 S.W.2d 25 (Mo.banc 1977), another case decided concurrently herewith, was introduced in the case at bar. Defendant also introduced the list of jurors summoned during the week of trial (December 8, 1975), however, this exhibit was not filed with this court nor included in the transcript on appeal. The panel of 55 in defendant's case had 6 women (10.9%) and the final 12 were men. The evidence does not differ significantly from Lee, hence the contention is denied.

II

It is next contended the court erred permitting joinder of charges in a single indictment and compounded the error by denying severance, forcing defense of both in a single trial. The murder of Mestdagh and the drugstore robbery were simultaneous or sequential parts of a single escapade occurring at the same location, constituting different criminal offenses. The state has not attempted to present unconnected crimes in the same trial and joinder of the charges was permissible under Rule 24.04 as amended in 1971. ¹ See State v. Baker, 524 S.W.2d 122 (Mo.banc 1975).

In State v. Duren, supra, this court considered a constitutional challenge to Rule 24.04, essentially the same as that made by this defendant. That ruling controls here and as in Duren, defendant has neither suggested nor has our examination of the record disclosed abuse of discretion in denial of the requested severance. This allegation of error is denied.

III

Defendant complains the trial court erred denying defendant's request for mistrial, prompted by the prosecutor's opening statement that defendant's companion, John Francis, admitted complicity in the robbery. The court overruled the motion but warned the prosecutor, out of the jury's hearing, " . . . don't make any more statements like that." The objectionable statement was as follows: "The evidence will further be that at police headquarters that night, detectives in the Crimes Against Persons Unit interviewed John Francis and they identified this defendant, Eugene Minor; that they were told several stories, but ultimately after this defendant was permitted to talk to John Francis in private, both John Francis and this defendant, Eugene Minor, admitted their complicity in this robbery. Each of them denied being the one to shoot Russell Mestdagh, but each admitted their participation in this robbery."

It first should be noted the state may not show that a non-testifying co-indictee has been convicted or pled guilty to the same crime as that which the defendant stands charged, State v. Fenton, 499 S.W.2d 813 (Mo.App.1973), nor may the state introduce evidence implicating only the co-indictee, State v. Mullen, 528 S.W.2d 517 (Mo.App.1975). See also State v. Castino, 264 S.W.2d 372 (Mo.1954). Further, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) condemned the prosecutor's introduction of an accomplice's confession by a third party implicating the defendant because defendant was denied the opportunity of cross-examining the accomplice and confrontation of his accusers.

Here, no attempt was made to introduce evidence of Francis' confession, instead the prosecutor's statement referred only to admission of complicity in the robbery and the fact that Francis denied having shot Officer Mestdagh. The prosecutor claimed the investigating detectives and Francis "identified this defendant, Eugene Minor; that they were told several stories but ultimately after this defendant was permitted to talk to John Francis in private, both John Francis and this defendant, Eugene Minor, admitted their complicity in the robbery." (Emphasis ours.) Use of the third person plural possessive 'their' indicates that Francis and Minor both admitted the others' as well as his own complicity. However, in the next sentence the prosecutor stated, "each of them denied being the one to shoot Russell Mestdagh, but each admitted their participation in this robbery." ² (Emphasis ours.) From this ambiguity it can reasonably be argued the prosecutor, by the colloquial usage, intended to state that each admitted his participation but not that of the other. Regardless of the interpretation of the prosecutor's remarks, i. e., whether Francis implicated only himself or Minor as well, the statement was objectionable. Nevertheless we do not believe it was prejudicial, requiring mistrial. The remedy of mistrial is a drastic one, State v. Johnson, 504 S.W.2d 23 (Mo.1973) and is to be exercised only in those circumstances where the alleged prejudice can be removed in no other way. State v. Goff, 490 S.W.2d 88 (Mo.1973); State v. Pruitt, 479 S.W.2d 785 (Mo.1972); State v. Blockton, 526 S.W.2d 915 (Mo.App.1975). As stated in State v. Camper, 391 S.W.2d 926, 928 (Mo.1965):

" . . . the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial."

Though defendant's motion for mistrial was overruled, his objection to the statement was in effect sustained by the trial court's warning to the prosecuting attorney against further "statements like that". The defense made no request that the court instruct the jury to disregard the prosecutor's statement or for similar remedial action. Moreover defendant's guilt was established by abundant evidence. There is no question of identity, indeed defendant did not deny his presence at the scene but claimed only that he did not participate in the robbery; that he was merely a disinterested bystander. He explained his running from the drugstore as an effort to escape being hit by stray gunfire. Two witnesses (the owner and a customer) with ample opportunity for observation inside the drugstore, positively identified defendant at a lineup and in court as one of the non-masked robbers. Each saw defendant with a gun and the owner, who was ordered to open the cash register, saw defendant stuff a pillowcase with drugs and while in the front room, fire his pistol....