State v. Scott

• Decision Date: 12 November 1974
• Docket Number: No. 1,No. 58261,58261,1
• Citation: 515 S.W.2d 524
• Parties: STATE of Missouri, Respondent, v. Louis Andrew SCOTT, Appellant
• Court: Missouri Supreme Court

Page 524

515 S.W.2d 524

STATE of Missouri, Respondent, v. Louis Andrew SCOTT, Appellant.

No. 58261.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1974.

John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

Marvin Q. Silver, Murray Stone, St. Louis, for appellant.

HIGGINS, Commissioner.

Louis Andrew Scott was convicted by a jury of murder, first degree. His punishment was assessed at life imprisonment and sentence and judgment were rendered accordingly. (Appeal taken February 15, 1973; jurisdiction retained pursuant to order April 9, 1973.)

As on previous appeal, appellant does not question the sufficiency of evidence to sustain his conviction and the evidence, including a confession of defendant, would permit the jury reasonably to find: that on April 28, 1967, Louis Andrew Scott and two others, armed with a sawed-off shotgun and a pistol, robbed a Liberty Loan Company office at 5916 Natural Bridge, St. Louis, Missouri; that during the course of the robbery, James Nolkemper, an employee of the company, was, at the direction of defendant, shot and killed by the robber holding the shotgun. Defendant did not testify and offered no evidence. State v. Scott, 482 S.W.2d 727 (Mo. banc 1972).

Appellant's first three points go to the voir dire of the veniremen. He contends that the court erred: I, in refusing to allow defendant to question veniremen whether, if defendant failed to take the stand, they would consider this failure as a factor in arriving at his guilt; II, in giving Instruction 8 over his objection, that 'The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised and no inference of any kind may be drawn, from the failure of the defendant to testify'; and, III, when prior to voir dire examination, it gave the veniremen a 'cautionary oral instruction' in the same language as Instruction 8.

The record shows that prior to voir dire examination of the veniremen, the court and counsel conferred in chambers to consider the effect on this trial of the opinion which reversed the conviction of defendant on his first trial. That opinion held that where three veniremen were of the opinion that defendant's failure to testify would be a factor weighing against innocence which they could consider in arriving at their verdict, and where statements and explanations made to the jury by the judge and counsel were not sufficient to clearly remove such opinions, the trial court abused its discretion in not excusing one of such veniremen upon challenge for cause. State v. Scott, supra.

The trial judge asked defense counsel if it was his intention to pursue inquiry of the veniremen with respect to their feelings in the event the defendant failed to take the stand. Upon counsel's affirmative answer, the court then advised: 'Then I think to avoid a recurrence of what took place in that case it will be the intention of the Court * * * to advise the jury that * * * the law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of the defendant to testify. * * * And then I intend to ask the jury generally whether any person on the panel would have any reason whatsoever that they could not apply the law as indicated by the Court as applicable in this case. I think if there is no indication that they cannot accept this as the law of the case, I don't think counsel should be permitted to inquire into the matter.'

The following then occurred:

'MR. SILVER (for defendant): * * * I think we should be entitled to ask individual questions but whatever the Court rules, we'll abide by and preserve our record. * * *

'MR. FREDERICKS (for the State): My feeling is that neither the attorney for the State nor the attorney for the defendant should make any comment to the panel on voir dire as to the right of necessity of the defendant to take the stand. * * * I would object to any comment being made by defense counsel as to the defendant's right to take the stand or not to take the stand. * * * I think now that the thing rests with Mr. Silver as to whether or not he is going to object to the Court's comment.

'MR. SILVER: I would not object to the Court's comments but I still think we ought to pursue the questions the way we did in the original trial. In other words, I don't think that the Court's comments still are sufficient unto themselves, that we still should be entitled to ask individual questions * * *

'THE COURT: If there is some indication, we'll cross that bridge when we come to it.

'MR. SILVER: In other words, we can ask our questions, counsel for the State can object and the Court can make it--we've preserved our record. * * *

'THE COURT: He is going to come up to the bench and indicate that he objects to the court restricting him about asking a question and I'll rule on it at that time.'

Pursuant to this procedure, and in this respect, the court, at the outset of voir dire examination of each panel of veniremen and among other things peculiar to voir dire, made the three-fold statement of the law and asked qualifying questions as follows: 'Now before we proceed with the counsel and their interrogation, I am going to tell you a couple of principles of law that apply to this case or any case such a this. They are simply that the defendant is presumed under the law to be innocent until he is proven guilty by the State of Missouri bringing the charges against him to your satisfaction and beyond a reasonable doubt. And the burden is upon the State of Missouri to prove the guilt of the defendant. In addition, the law does not compel the defendant in a criminal case to take the witness stand and testify and no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of the defendant to testify. Now I ask every member of this panel, * * * having heard those principles of law which are applicable to this case, does anybody on this panel feel they would not be able to follow those principles of law if and when I instruct you that they are the law applicable to this case? Is there anybody that can't do that? Is there anybody that does not? Is there anybody that disagrees with those principles of law that they would not apply them in this case? We all have some disagreements with the law. I do in many instances. I am sure lawyers do, but this is the law of the case. I must follow it and the jurors are expected and must follow it. Is there anybody who will not follow those principles of law? (No response was made by the veniremen.)'

At the conclusion of defendant's voir dire examination of the veniremen, the following occurred:

'MR. STONE (for defendant): I would like to ask each individual juror at this time that if Mr. Scott did not take the stand would they hold it against him, or if he would not take the stand would they consider it against him. MR. FREDERICKS: I would object to the question for the reason that I can't ask any questions pertaining to that. * * * The Court has covered that matter in its opening remarks.

'THE COURT: I think, Mr. Stone, that the Court has asked this jury whether they would follow the instructions with respect to the law. What is the question again that you want to ask?

'MR. STONE: That if Louis Scott chose not to take the stand would they hold this against him or consider it against him * * * That's basically the question, that if he doesn't chose (sic) to take the stand would they consider this or hold this against Mr. Scott.

'THE COURT: I think the matter has thoroughly been covered by the Court's indication that that is the law and that no juror has indicated that they wouldn't follow that rule, although it is the Court's intention that if he doesn't take the stand to give that as a formal instruction * * *. I think that you may ask them if you want whether or not when the Court instructs them with respect to the law if there is anyone that would not follow each and every instruction as to the law that's given to them by the Court. * * * I am going to sustain the objection. I think it has been fully covered.'

The foregoing excerpts have been provided in detail to demonstrate ready answers to appellant's contentions I, II, and III.

With respect to Point I, a trial court necessarily and properly has considerable discretion in control and conduct of voir dire examination of veniremen; and an appellate court will differ or interfere with the exercise of that discretion only when the record shows a manifest abuse of discretion and a real probability of injury to the complaining party. Olsten v. Susman, 391 S.W.2d 331 (Mo.1965). This discretion applies also to the control of specific questions. Wright v. Chicago, Burlington & Quincy R.R. Co., 392 S.W.2d 401 (Mo.1965).

This record shows that defendant was denied specific questions going to prospective jurors' feelings with respect to his failure to testify only after the subject was covered by the court's own specific questions. The trial court understandably, in view of the prior reversal, took particular care in this area on retrial; and there were no responses from the veniremen to the court's questions indicating disagreement with, or inability to apply, the legal principles accurately enunciated by the trial court preliminary to the questions. In such circumstances, it was hardly necessary for counsel to re-cover the same ground, and it may not be said that the court abused its discretion or that defendant was injured.

With respect to Point II, it is noted that this case was tried in December, 1972. In September, 1972, this court held that the giving of an instruction, over defendant's objection, that defendant was not required to testify and that failure to do so should not give rise to presumption of guilt or inference of any nature, did not...