State v. Norton, 47605
| Citation | 681 S.W.2d 497 |
| Decision Date | 20 November 1984 |
| Docket Number | No. 47605,47605 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Terry A. NORTON, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
John P. Zimmerman, Asst. Public Defender, St. Charles, for defendant-appellant.
John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant was charged by information with the offenses of burglary first degree, forcible sodomy, armed criminal action, forcible rape and stealing. A jury found him guilty of stealing but not guilty of all other charges.
Defendant does not question the sufficiency of the evidence so a brief statement of facts will suffice. The victim testified she was awakened when a man, later identified as defendant, got into her bed and raped and sodomized her at knifepoint. The police were called by the victim's daughter. When they arrived at the scene the victim escaped through a window. Subsequently, defendant escaped in the victim's automobile, which constituted the foundation for the stealing charge.
Defendant asserts two points on appeal, both of which relate to the voir dire examination of prospective jurors. The first concerns a question, repeated four times in slightly different form, by the prosecutor, which can be described by a single example:
Does everyone agree that a defendant may plead not guilty to avoid the responsibility for a crime they have committed? Does everyone realize that people charged with very serious offenses, such as rape and sodomy and armed criminal action, usually plead not guilty?
Each time the question was asked defendant's attorney objected and, after a bench conference, the court sustained the objection but denied a request for a mistrial.
While counsel should be allowed reasonable latitude in the examination of prospective jurors, there are limits to the scope of permissible examination. State v. Beatty, 617 S.W.2d 87, 92 (Mo.App.1981). The nature, extent and propriety of questions addressed to veniremen are subjects within the discretionary control of the trial court and the exercise of such discretion will be disturbed on appeal only when a manifest abuse thereof is disclosed. State v. Lumsden, 589 S.W.2d 226, 229 (Mo. banc 1979). In addition, the party asserting such a manifest abuse of discretion has the burden of demonstrating a real probability that he was thereby prejudiced. State v. Mudgett, 531 S.W.2d 275, 280 (Mo. banc 1975); State v. Hines, 567 S.W.2d 740, 742-43 (Mo.App.1978).
As exemplified by the question set forth above, the entire series of questions relating to a not guilty plea constituting a means of escaping responsibility by guilty persons was improper. The questions constituted disparagement of the constitutionally protected presumption of innocence afforded to every accused person. "[A]ll defendants, regardless of guilt or innocence, are guaranteed a jury trial and are entitled to the benefit of the presumption of innocence." State v. Reese, 481 S.W.2d 497, 499 (Mo. banc 1972). Had defendant requested that the jury be admonished to disregard the questions or that the prosecutor be reprimanded for his persistent impropriety, such remedial relief would have been appropriate. However, after his objection was sustained, defendant's sole request was for the drastic remedy of a mistrial. "Whether remarks of counsel are so prejudicial as to necessitate a mistrial rests largely within the trial court's discretion, State v. Hunter, 499 S.W.2d 787, 788 (Mo.1973), and the appellate court will not interfere unless there has been an abuse of discretion which prejudices defendant." State v. Healey, 562 S.W.2d 118, 130 (Mo.App.1978). It is apparent that defendant suffered no prejudice by reason of the improper question on voir dire. He was acquitted of four of the five offenses charged...
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State v. Antwine
...extent of questioning on voir dire has the burden of demonstrating "a real probability that he was thereby prejudiced." State v. Norton, 681 S.W.2d 497, 498 (Mo.App.1984). In reviewing the record in this case, we find that the factual presentation given by the State was neither too lengthy ......
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State v. Debler
...on the alleged facts of the case, the parties are entitled to a jury that will weigh these circumstances. See State v. Norton, 681 S.W.2d 497, 499 (Mo.App.1984). A juror who would consider one of the two penalties only under impossible circumstances is subject to disqualification. Morgan, -......
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Pollard v. Whitener, WD
...latitude in the examination of prospective jurors, there are limits to the scope of permissible examination." State v. Norton, 681 S.W.2d 497, 498 (Mo.App.1984). "The right to question the jury panel is not absolute as it is hedged with restrictions to insure that the inquiry is not pervert......
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State v. Luster, WD
...shows an abuse of discretion, and the burden is on the complaining party to demonstrate a real probability of injury. State v. Norton, 681 S.W.2d 497, 498 (Mo.App.1984). Further, the question complained of by the defendant has previously been upheld. In State v. Wilson, 554 S.W.2d 511, 513 ......