State v. Robinson

• Decision Date: 22 March 2016
• Docket Number: No. ED 102678,ED 102678
• Citation: 484 S.W.3d 862
• Parties: State of Missouri, Respondent, v. Arthur B. Robinson, Defendant/Appellant.
• Court: Missouri Court of Appeals

484 S.W.3d 862

State of Missouri, Respondent,

v.Arthur B. Robinson, Defendant/Appellant.

No. ED 102678

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: March 22, 2016

Amy Marie Bartholow, Office of Public Defender, 1000 W. Nifong, Building 7, Suite 100, Columbia, MO 65203, Attorney for Appellant.

Chris Koster, Attorney General Gregory L. Barnes, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, Attorney for Respondent.

OPINION

Mary K. Hoff

, Judge

Arthur B. Robinson (Defendant) appeals the judgment of his conviction after a jury trial on one count of burglary in the first degree, in violation of Section 569.160, RSMo 2000

.¹ The trial court sentenced Defendant, as a prior and persistent offender, to twenty years' imprisonment. We reverse and remand for new trial.

Factual and Procedural Background

In January 2014, the State charged Defendant with first-degree burglary in violation of Section 569.160

, and with resisting or interfering with arrest in violation of Section 575.150. The resisting arrest charge was dismissed, and the case went to trial on the burglary charge. At the commencement of voir dire, however, the trial court informed the jury that the State had charged Defendant with both felonies. Defense counsel moved for a mistrial due to that disclosure, and the trial court denied the motion. The trial court then instructed the jury pool as to the presumption of Defendant's innocence, the reasonable doubt standard, and that the charge against Defendant was not evidence. After questioning by both parties, the jury was selected and sworn in.

In every criminal trial, the judge is mandated to read three introductory pattern instructions as soon as the jury is sworn. MAI–CR3d 300.06 explains the order of the proceedings and the occasional need for delay:

This case will proceed in the following order:

First, the Court will read to you two instructions concerning the law applicable to this case and its trial. Next, the attorney for the state must make an opening statement outlining what the attorney expects the state's evidence will be. The attorney for the defendant is not required to make an opening statement then or at any other time. However, if the attorney chooses to do so, he may make an opening statement after that of the state, or the attorney may reserve his opening statement until the conclusion of the state's evidence.

Evidence will then be introduced.

At the conclusion of all the evidence, further instructions in writing concerning the law will be read to you by the Court, after which the attorneys may make their arguments. You will then be given the written instructions of the Court to take with you to the jury room. You will go to that room, select a foreperson, deliberate, and arrive at your verdict.

Sometimes there are delays or conferences out of your hearing with the attorneys about matters of law. There are good reasons for these delays and conferences. The Court is confident that you will be patient and understanding. We will have recesses from time to time.

The following two instructions of law are for your guidance in this case. The two of them, along with other instructions in writing read to you at the close of all the evidence, will be handed to you at that time to take to your jury room.

Trial courts must then read MAI–CR3d 302.01, which delineates the duties of judge and jury:

Those who participate in a jury trial must do so in accordance with established rules. This is true of the parties, the witnesses, the lawyers, and the judge. It is equally true of jurors. It is the court's duty to enforce these rules and to instruct you upon the law applicable to the case. It is your duty to follow the law as the court gives it to you.

However, no statement, ruling, or remark that I may make during the trial is intended to indicate my opinion of what the facts are. It is your duty to determine the facts and to determine them only from the evidence and the reasonable inferences to be drawn from the evidence. In your determination of the facts, you alone must decide upon the believability of the witnesses and the weight and value of the evidence.

In determining the believability of a witness and the weight to be given to testimony of the witness, you may take into consideration the witness' manner while testifying; the ability and opportunity of the witness to observe and remember any matter about which testimony is given; any interest, bias, or prejudice the witness may have; the reasonableness of the witness' testimony considered in the light of all the evidence in the case; and any other matter that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness.

It is important for you to understand that this case must be decided only by the evidence presented in the proceedings in this courtroom and the instructions I give you. The reason for this is that the evidence presented in court is reviewed by the lawyers and the court, and the lawyers have the opportunity to comment on, or dispute, evidence presented in court. If you obtain information from other places, the lawyers do not have the opportunity to comment on or dispute it. Fairness and our system of justice require giving both sides the opportunity to view and comment on all evidence in the case. It is unfair to the parties if you obtain information about the case outside this courtroom.

Therefore, you should not visit the scene of any of the incidents described in this case, nor should you conduct your own research or investigation. For example, you should not conduct any independent research of any type by reference to textbooks, dictionaries, magazines, the Internet, a person you consider to be knowledgeable or any other means about any issue in this case, or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is any way involved in this trial.

You should not communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text or post anything about this trial or your thoughts or opinions about any issue in this case to any person. This prohibition on communication about this trial includes use of the Internet, [List popular websites such as "Facebook," "MySpace," "Twitter." ], or any other personal or public website.

Faithful performance by you of your duties as jurors is vital to the administration of justice. You should perform your duties without prejudice or fear, and solely from a fair and impartial consideration of the whole case. Do not make up your mind during the trial about what the verdict should be. Keep an open mind until you have heard all the evidence and the case is given to you to decide.

If the trial court plans to allow jurors to take notes, it adds parenthetical information from MAI–CR3d 302.01:

Each of you may take notes in this case but you are not required to do so. I will give you notebooks. Any notes you take must be in those notebooks only. You may not take any notes out of the courtroom before the case is submitted to you for your deliberations. No one will read your notes while you are out of the courtroom. If you choose to take notes, remember that note-taking may interfere with your ability to observe the evidence and witnesses as they are presented.

Do not discuss or share your notes with anyone until you begin your deliberations. During deliberations, if you choose to do so, you may use your notes and discuss them with other jurors. Notes taken during trial are not evidence. You should not assume that your notes, or those of other jurors, are more accurate than your own recollection or the recollection of other jurors.

After you reach your verdict, your notes will be collected and destroyed. No one will be allowed to read them.

Courts then proceed to read MAI–CR3d 302.02, which defines what is—and what is not—evidence:

You must not assume as true any fact solely because it is included in or suggested by a question asked a witness. A question is not evidence, and may be considered only as it supplies meaning to the answer.

From time to time the attorneys may make objections. They have a right to do so and are only doing their duty as they see it. You should draw no inference from the fact that an objection has been made.

If the court sustains an objection to a question, you will disregard the entire question and you should not speculate as to what the answer of the witness might have been. The same applies to exhibits offered but excluded from the evidence after an objection has been sustained. You will also disregard any answer or other matter which the court directs you not to consider and anything which the court orders stricken from the record.

The opening statements of attorneys are not evidence. Also, you must not consider as evidence any statement or remark or argument by any of the attorneys addressed to another attorney or to the court. However, the attorneys may enter into stipulations of fact. These stipulations become part of the evidence and are to be considered by you as such.

In the instant case, rather than give the preliminary instructions above, the trial court immediately turned proceedings over to the State, which made its opening argument. Neither the State nor Defendant made an objection to the trial court's failure to read the preliminary instructions. Given the disposition of this case, only a brief recitation of the facts is necessary viewed in the light most favorable to the verdict. The parties introduced testimony from several witnesses, including a victim who testified she heard knocking on her door, footsteps inside her residence, and thereafter saw Defendant near her porch. Other witnesses testified that they saw a man who matched Defendant's description on the victim's porch and near the scene. Defendant was arrested after fleeing the area and police. Defendant told the police he was trying to earn money by shoveling snow but did not enter the victim's residence. Defendant didn't...