State v. Robinson, 62730

CourtUnited States State Supreme Court of Missouri
Citation641 S.W.2d 423
Docket NumberNo. 62730,62730
PartiesSTATE of Missouri, Respondent, v. Glenn ROBINSON, Appellant.
Decision Date09 November 1982

Stephen J. Murphy, Affton, for appellant.

John Ashcroft, Atty. Gen., Douglas Lind, Asst. Atty. Gen., Jefferson City, for respondent.


Appellant appeals from his conviction by a jury of capital murder, § 565.001, RSMo 1978, and sentence to life imprisonment without eligibility for probation or parole for at least fifty years, § 565.008(1), RSMo 1978. This Court has jurisdiction. Mo. Const. art. V, § 3. We affirm.

The sufficiency of evidence is not questioned. The jury could have concluded the following facts beyond a reasonable doubt. At approximately 9 or 9:30 p.m. on August 16, 1979, Thomas and Carol Laman and their infant son went to bed in their single bedroom, upper-story flat. Thomas worked at night and generally left home around 11:45 p.m. On this night, the alarm rang at approximately 11:20 p.m., and Thomas arose at 11:30 p.m., dressed himself, kissed his wife good-bye, and went out into the hallway. He apparently turned on the hallway light, and Carol heard him yell, "What are you doing up here?" Carol testified that she heard a black male's voice reply, "We're just looking at your bikes." She then heard someone ask where she was, and her husband answered, "She's asleep in the bedroom."

Upon hearing these remarks, Carol arose and put on a blouse. Meanwhile, a man Carol later identified as appellant entered the bedroom with a gun. The bedroom was partially lighted by the hall light and by a night light, and Carol was able to observe the man's face from arm's length for two or three seconds before the man told her to turn away from him. After Carol turned away, the man made sexual advances toward her. At some point, she was able to observe his face a second time for two or three seconds. While the first man was with her, she heard a gunshot from the hall, but she heard Thomas speak in a normal voice afterwards.

After about five minutes, a second man entered the bedroom with a pistol and a can of beer, and the first man went into the hallway, where Thomas had remained. The second man put the gun to Carol's head and threatened to "blow [her] head off" if she did not give him her purse. When she was unable to comply, he grabbed her hair and demanded that she perform oral sex. While this was taking place, a second shot was fired in the hallway, and the man with Carol then left her.

When the second man entered the hallway, Carol heard someone ask, "What did you pop him for?" She shut the door as ordered and heard the two men apparently disconnecting the telephone. Within forty-five seconds after the second shot, Carol heard a third shot. She heard the men leave, left the bedroom, and saw two men running down the street. Her screams brought the police within two or three minutes. Thomas bled to death and was pronounced dead upon arrival at the hospital. He had been shot in the chest and the lower back. The former wound was superficial, the bullet traveling through, and lodging itself, in the muscles outside the chest cavity. The evidence showed that the latter wound was fatal and might have been received while the victim was lying face down. Other testimony at trial tended to place appellant near the scene on August 16, 1979.


Appellant contends that the trial court erred in giving instructions 5, 7, 8, and 9, which are combinations of MAI-CR2d 2.12 and MAI-CR2d 15.02, 15.12, 15.14, and 15.18, respectively. We here recite only Instruction No. 5 because it is substantially similar to the others in those features that appellant challenges and because appellant was convicted under Instruction No. 5, which is a combination of MAI-CR2d 2.12 and MAI-CR2d 15.02:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about August 16, 1979, in the City of St. Louis, State of Missouri, the defendant, or a certain person with the aid or attempted aid of the defendant, committed the offense of capital murder of Thomas Laman, in that

the defendant, or a certain person with the aid or attempted aid of the defendant, caused the death of Thomas Laman by shooting him, and that

the defendant, or a certain person with the aid or attempted aid of the defendant, intended to take the life of Thomas Laman, and that

the defendant, or a certain person with the aid or attempted aid of the defendant, knew he was practically certain to cause the death of Thomas Laman, and that

the defendant, or a certain person with the aid or attempted aid of the defendant, considered taking the life of Thomas Laman and reflected upon this matter coolly and fully before doing so, and

Second, that the defendant either before or during the commission of the offense of capital murder with the purpose of promoting its commission aided such other person in committing that offense,

then you will find the defendant guilty of capital murder.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Appellant contends (1) that in combining MAI-CR2d 2.12 with the MAI-CR2d 15.00 series, the trial court violated Rule 28.02(c), which mandates that applicable MAI-CR instructions be given to the exclusion of any other on the same subject, (2) that the trial court violated MAI-CR2d 2.12 n. 5 by failing to give a separate instruction defining capital murder, first degree murder, second degree murder, and manslaughter, and (3) that the instructions were ambiguous and inaccurately stated the law.

This Court recently addressed the first two issues in State v. McIlvoy, 629 S.W.2d 333, 336-37 (Mo. banc 1982). There we held that a trial court does not err in combining MAI-CR2d 15.02 and MAI-CR2d 2.12 in order to satisfy the following MAI-CR2d requirements: (1) that MAI-CR2d 2.12 be given, whether requested or not, whenever there is evidence that the defendant acted with others in planning, committing, or attempting to commit the offense, MAI-CR2d 2.10 n. 3; (2) that verdict directors contain all essential elements of the offense charged, MAI-CR2d 2.02 n. 2; (3) that the offense initially contemplated be identified without stating all of its essential elements, MAI-CR2d 2.12; and (4) that a separate instruction defining the offense initially contemplated be given whenever MAI-CR2d 2.12 is used, MAI-CR2d 2.12 n. 5. We find that a combination of MAI-CR2d 2.12 and MAI-CR2d 15.02 did not violate Rule 28.02(c) or MAI-CR2d 2.12 n. 5 because the evidence supported an instruction on capital murder and a finding that appellant had acted with another.

In reviewing whether the instructions stated the law accurately, we have taken cognizance of our order of April 30, 1982, effective January 1, 1983. 1 Therein at MAI-CR2d 2.12 n. 7 we have indicated that the instructions given on capital murder and party responsibility in State v. White, 622 S.W.2d 939, 942-43 (Mo. banc 1981), were not inconsistent with the instructions to become effective January 1, 1983. 2 The instructions to become effective January 1, 1983, correctly state the law. We here find that the instructions given in the case at bar were substantially similar to those approved in State v. White, and, thus, were neither inaccurate nor ambiguous.


Appellant next contends that the trial court erred in overruling his objections to the prosecutor's closing argument because, he argues, the argument referred to his failure to testify. He points our attention to the following statements:

"After the state's evidence which told you that he was there, that Glenn Robinson was there and committed murder, the defense had the opportunity to put on any evidence they wanted to and all they did was introduce two photos. The evidence is overwhelming and uncontradicted."

Continuing, the prosecutor argued: "They had the opportunity and are allowed to put on any evidence they want. The state's evidence--we went forward ... The evidence is uncontradicted. And the evidence points to one thing, that Glenn Robinson is the man that murdered Thomas Laman."

In his rebuttal, the prosecutor attempted to explain his chief witness's difficulty in identifying a voice: "And she said she's never heard the voice since that time. Well, that could have easily been solved, not by me--."

Finally, the prosecutor argued: "And the only evidence in this case from the witness stand is evidence that says Glenn Robinson is a murderer--that he murdered Tom Laman--and that was uncontradicted."

The trial court has wide discretion in controlling the scope of closing argument. State v. Shaw, 636 S.W.2d 667, 675 (Mo. banc 1982). It is in a better position to observe the contested incidents and to determine their prejudicial effect upon a jury. State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970). Because of the trial court's superior vantage point, this Court has held that it will disturb the trial court's decision, when the prosecutor allegedly has alluded to a defendant's failure to testify, only where the references are direct and certain. State v. Hutchinson, 458 S.W.2d 553, 555 (Mo.1970). Merely stating that evidence is "uncontradicted" or that a defendant has failed to offer evidence is not a direct and certain reference. See State v. Jones, 491 S.W.2d 271, 274 (Mo.1973); State v. Morgan, 444 S.W.2d 490, 493 (Mo.1969).

Our review of the whole record does not reveal that the trial court abused its discretion. The burden of proof was a theme in the closing arguments of both counsel. Appellant repeatedly commented upon the...

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