State v. Rogers, 40039

• Decision Date: 19 June 1979
• Docket Number: No. 40039,40039
• Citation: 585 S.W.2d 498
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Anthony ROGERS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 498

585 S.W.2d 498

STATE of Missouri, Plaintiff-Respondent, v. Anthony ROGERS, Defendant-Appellant.

No. 40039.

Missouri Court of Appeals, Eastern District, Division One.

June 19, 1979.

Paul E. Ground, Manchester, for defendant-appellant.

George A. Peach, Circuit Atty., Gordon L. Ankney, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Marjorie Wholey Haines, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Judge.

Defendant was found guilty by a jury of murder in the second degree. The court sentenced him to twenty years in the Department of Corrections. Defendant duly appealed and alleged four errors of the trial court.

From the State's evidence we learn that the shooting which resulted in the death of Ray B. Gladish occurred about 2:34 p.m., November 7, 1976, at Calvary Cemetery, located in the northeast section of the City of St. Louis. At the shooting the defendant also received a gunshot wound and the slug remained in his shoulder. Other pertinent facts will be discussed as the court reviews the appellant's contentions.

Appellant first contends that he was denied the right to trial by an impartial jury as guaranteed by the 6th and 14th Amendments to the United States Constitution. We cannot agree.

On October 27, 1977, an article appeared in the St. Louis Globe-Democrat reporting the acquittal of Tommie Overstreet of murder and robbery. Overstreet had been previously convicted of first degree murder and first degree robbery and sentenced to concurrent terms of life and five years. He appealed to the Missouri Court of Appeals, Eastern District, which affirmed his conviction. However, the Supreme Court of Missouri reversed, holding that the admission in evidence of the bullet removed from Overstreet's buttocks was reversible error. ¹ Overstreet was granted a new trial and acquitted.

Appellant's situation was remarkably similar to that of Overstreet. Appellant, like Overstreet, was charged with first degree murder and first degree robbery. Like Overstreet, he had sustained a bullet wound in which the bullet did not exit his body. However, unlike Overstreet, the bullet was not introduced into evidence against him because appellant refused the state permission to remove the bullet. Appellant's motion for refusing surgery was sustained based upon the Overstreet case.

On October 27, 1977, the day appellant's case was to go to the jury, the St. Louis Globe-Democrat reported the acquittal of Overstreet. The article contained statements made by the St. Louis Circuit Attorney George Peach who was aware of the instant case being tried and that it would be submitted to the jury. The article read:

Tommie W. Overstreet, whose murder-robbery conviction was reversed by the Missouri Supreme Court on the grounds that surgical removal of a bullet for use as evidence against him was unconstitutional, won acquittal Wednesday in a new trial on the same charges.

"The score card should read Supreme Court 1, the people of St. Louis 0," St. Louis Circuit Attorney George Peach said bitterly after Overstreet was found innocent by a jury that deliberated 21/2 hours.

"Overstreet walked free today, and I wish someone else had to explain the result to the dead man's family. It's frustrating," Peach said. St. Louis Globe-Democrat, Oct. 27, 1977 at 1A and 6A.

The article gave a history of the Overstreet case and quoted the comments of the Circuit Attorney:

"We are forced to try this case with one hand tied behind our backs, and the fact finder (the jury) was deprived of hearing all the relevant evidence by a Supreme Court ruling which was based on a 1976 federal case, decided two years after we were presented with the problem." Peach noted that "we obtained our order in 1974 for removal of the bullet under existing legal principles at the time" and Overstreet "was not harmed by the operation. The evidence was there, and we were forced to close our eyes to it."

It came to the attention of the court that some of the jurors in appellant's case might have read the article and thereby been prejudiced. Appellant moved for a mistrial.

We recognize that freedom of discussion should be given the widest range compatible with the essential requirements of the fair and orderly administration of justice. But that must not be allowed to divert a trial from the very purpose of the court system which is to adjudicate controversies in the tranquility and the solemnity of the courtroom according to legal procedure. The jury's verdict must be based on evidence properly received in court and not from outside sources. Due process requires no less. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial court must take strong measures to insure that the balance is never weighed against the accused. Appellate tribunals have a duty to make an independent evaluation of the circumstances to insure that publicity has not had a prejudicial effect on jurors. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 6 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Receipt by a juror of possibly prejudicial information during a trial of a felony case requires that the verdict be set aside unless the state affirmatively shows that the jurors were not subject to improper influence. State v. Raspberry, 452 S.W.2d 169(15) (Mo.1970); State v. Jones, 363 Mo. 998, 255 S.W.2d 801(8) (1953). The function of an appellate court on a denial of mistrial is to determine, as a matter of law, whether the trial court abused its discretion in refusing to declare a mistrial. The declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where prejudicial effect can be removed in no other way. State v. Raspberry, supra (8).

Our review of the circumstances indicates that appellant was not prejudiced. The state more than affirmatively met its burden. The experienced trial court adroitly questioned the jurors individually and collectively in such a way so as to not highlight any prejudicial effect the article may have had on the jurors. Both attorneys were free to ask questions and defense counsel took advantage of the opportunity. The interrogation of the jurors occupies twenty-six pages in the transcript. As was said in State v. Cooper, 541 S.W.2d 40 (Mo.App.1976):

Familiarity with facts, or purported facts, from news reports without the formation of an opinion does not necessarily require disqualification of a juror. State v. Spica, 389 S.W.2d 35 (Mo.1965), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966). Defendant's right to a fair and impartial jury does not extend to having a jury panel which is completely devoid of any news reports, and as the United States Supreme Court recently ruled in Nebraska Press Association v. Steward, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), ". . . (T)hese cases demonstrate that pretrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial." Id. at 553, 96 S.Ct. at 2800.

Although the frustration publicly conveyed by the Circuit Attorney to the news media was malapropos, imprudent and disrespectful, this court is unable to find any prejudice to appellant. We rule that the trial court did not abuse its discretion.

Appellant's second contention is that he was denied the right to an impartial jury in violation of the 6th and 14th Amendments to the United States Constitution due to improper questions asked by the prosecutor. We cannot agree.

As mentioned, appellant had been wounded but refused to have the bullet removed. Mr. Ankney, the assistant prosecutor, asked,

"Doctor, the wound or the bullet that is located close to the skin in the shoulder area in the back, would that be difficult to remove?"

The doctor responded, "I don't feel it would, no."

The defense attorney objected and moved for a mistrial. The court sustained the objection, admonished the jury to disregard the answer and denied the motion for a new trial.

The granting of a mistrial rests in the sound discretion of the trial court who is in a better position than the appellate court to evaluate the prejudicial effect of the occurrence initiating the request for a mistrial. State v. Morgan, 546 S.W.2d 207 (Mo.App.1977). The reviewing court, in order to hold that a failure to grant mistrial was a reversible error, must conclude as a matter of law from the entire record, that the error was so prejudicial that its effect was not removed by the action of the trial court. State v. Harris, 535 S.W.2d 145 (Mo.App.1976).

Our review of the entire record does not warrant a reversal of the trial court. Any prejudice suffered by the appellant was cured when the trial court instructed the jury to disregard the answer.

Appellant's third contention is that the seizure of keys from the hospital dressing attendant by a police officer without a warrant or appellant's consent, at a time when probable cause did not exist to suspect that he had committed any crime, violated his right to be free of unreasonable seizures as guaranteed by the 4th and 14th Amendments to the United States Constitution. Due to the unusual facts of this case we cannot agree.

Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), held that the "security of one's privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause" of the 14th Amendment. Id. at 27-28, 69 S.Ct. at 1361. However it wasn't until Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that the exclusionary rule, which had previously rendered inadmissible illegally seized evidence by federal officers in a federal prosecution, was held binding upon...