State v. Smith, WD
| Decision Date | 02 March 1999 |
| Docket Number | No. WD,WD |
| Citation | 988 S.W.2d 71 |
| Parties | STATE of Missouri, Appellant, v. Patrick Thomas SMITH, Respondent. 55358. |
| Court | Missouri Court of Appeals |
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for Appellant.
George A. Pickett, Plattsburg, for Respondent.
Before ULRICH, P.J.; SMART and EDWIN H. SMITH, JJ.
The State of Missouri, pursuant to § 547.200.2, RSMo 1994, 1 appeals an order of the trial court dismissing a prosecution for felony stealing on the ground that the State's opening statement was deficient. The State contends that the trial court erred in dismissing the action because the State's opening statement was not deficient. The State also contends that, at the very least, the opening statement would support an action for misdemeanor stealing. The State further contends that retrial of the defendant is not barred by double jeopardy. Because we agree that the trial court erred by dismissing the action and that double jeopardy does not bar retrial, the trial court's dismissal of the action is reversed and the cause is remanded for a new trial.
On March 19, 1997, the State filed a two-count information charging Patrick Thomas Smith with stealing seven walnut logs having a value of over $150.00 in violation of § 570.030, and receiving stolen property with a value of at least $150.00 in violation of § 570.080. The information charged Smith as a prior and persistent offender. Count I alleged that on January 1, 1997, in DeKalb County, Smith stole seven walnut logs belonging to Clarence Duce and Wayne Culley and that the logs had a value of at least $150.00. Count II alleged that Smith received or retained this property, knowing or believing it to be stolen. On the day of the trial, January 12, 1998, an amended information was filed charging Smith with a single count of stealing property, seven walnut logs, with a value of at least $150.00 and alleging that Smith was a prior and persistent offender.
In its opening statement, the prosecution described an alleged scheme by Smith and Campbell to steal "some good walnut trees" belonging to Clarence Duce and Wayne Culley. The prosecutor stated that the evidence would show that Smith and Campbell asked permission to go on the land to "cut some firewood." He said that while they were back in the woods cutting trees, a neighbor by the name of Daniels came upon them. Campbell told Daniels that he and Smith had permission to be "cutting walnut logs." Daniels later told Duce that he had seen Smith and Campbell cutting walnut logs. Smith and Campbell were arrested. The prosecutor said that Campbell would testify that he and Pat Smith were in it together, and that they knew what they were doing, and went into Duce's and Culley's land to cut walnut trees. The prosecutor said that the evidence would be that the walnut trees were "good walnut trees that still weren't ready to be cut or logged." "They were still a little bit young, as the evidence will be from our expert on logs." ...
At the conclusion of the opening statement, the defense moved to dismiss, claiming:
[H]e pled no testimony with respect to any kind of evidence of the value of the property that was involved. He's charged with a felony, which means there has to be some indication that the value was in excess of One Hundred Fifty Dollars. It wasn't there. Nothing at all. No mention of it.
The State explained that it mentioned "that the logs are very valuable." The court stated, "Well, I think on the question of the value, it's something that has to be alleged and one of the elements have to be stated in opening statement." Additionally, the defense argued that there was no reference to venue. The State was not given the opportunity to amend its opening statement. The trial court granted the defense's motion stating, "Well, based on the two items missing, the Court will grant the motion to dismiss." The court then dismissed the jury, explaining that, "at this time, the Court has dismissed the case based on the opening statement of the State."
The State appeals.
The State, in its sole point on appeal, claims that the trial court erred by dismissing the prosecution against Smith based upon the State's allegedly defective opening statement. The State contends that its opening statement was not defective because it did not clearly and affirmatively appear from the opening statement that the charge against Smith could not be sustained under any view of the evidence. Additionally, the State points out that venue need not be mentioned in an opening statement. The State further claims that the recitation of the evidence in the opening statement at least supported a prosecution for misdemeanor stealing. The State's appeal presents the issue of whether double jeopardy prevents the retrial of a defendant after the trial court has dismissed the case based upon the defendant's motion on the ground that the prosecutor failed to make an adequate opening statement. The State contends that retrial is not barred by the prohibition against double jeopardy.
The State has no right of appeal in a criminal case unless that right is "expressly conferred by statute in the plainest and most unequivocal terms." State v. Craig, 223 Mo. 201, 122 S.W. 1006, 1006 (1909) (citing State v. Wear, 145 Mo. 162, 46 S.W. 1099 (1898)); see also State v. Drake, 906 S.W.2d 787, 788 (Mo.App.1995) (citation omitted); State v. White, 860 S.W.2d 805, 806 (Mo.App.1993) (citation omitted). In the present case, the State's appeal is expressly authorized by statute; the State appeals pursuant to § 547.200.2, RSMo 1994, which provides:
The state, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant....
The issue of double jeopardy is always inherent in the State's appeal of criminal matters. White, 860 S.W.2d at 806 (quoting State v. Casaretto, 818 S.W.2d 313, 315 (Mo.App.1991)). Our review therefore, not only encompasses the issue of whether the trial court erred by dismissing the case against Smith, but also whether that dismissal acts as a bar for any further prosecution of Smith on this charge. Because these issues involve questions of law, our review is de novo. State v. Tinoco, 967 S.W.2d 87, 89 (Mo.App.1998).
The State claims the trial court erred in dismissing the case against Smith because its opening statement was not inadequate. We agree. We begin by noting that the State is required to make an opening statement in a criminal trial. § 546.070(1), RSMo 1994; Rule 27.02(f). However, even where the State has failed to do so, it has been held not to be reversible error unless the defendant can show prejudice. State v. Anders, 975 S.W.2d 462, 466-67 (Mo.App.1998); State v. Watson, 839 S.W.2d 611, 615 (Mo.App.1992).
The principal function of the State's opening statement is to inform the jury and the defendant of the evidence the State expects to present and the significance of that evidence. State v. Murray, 744 S.W.2d 762, 774 (Mo. banc 1988) ; State v. Flaaen, 863 S.W.2d 658, 660-61 (Mo.App.1993). The opening statement also informs a defendant of the anticipated course of the prosecution in order that he have the chance to fairly answer the charge against him. State v. Brigham, 709 S.W.2d 917, 923 (Mo.App.1986). The prosecutor has a good faith duty to describe only those facts that will be proven by the evidence. State v. Hill, 866 S.W.2d 160, 163 (Mo.App.1993). An opening statement is not a test of the sufficiency or competency of the evidence. State v. Bauers, 702 S.W.2d 896, 899 (Mo.App.1985); (citing State v. Hurst, 612 S.W.2d 846, 853 (Mo.App.1981)).
Although the scope and manner of opening statements are generally within the discretion of the trial court, State v. Brooks, 618 S.W.2d 22, 24 (Mo. banc 1981), and the trial court has the power to enter a judgment of acquittal after the State has made its opening statement, that power should only be exercised "when it clearly and affirmatively appears from the statement that the charge against [the] accused cannot be sustained under any view of the evidence consistent with it." State v. Gray, 423 S.W.2d 776, 786 (Mo.1968). We also look at whether the alleged deficiencies in the State's opening statement "den[ied] defendant an understanding of the state's contemplated course of prosecution." State v. Musil, 935 S.W.2d 379, 382 (Mo.App.1996). Moreover, before the trial court directs a verdict for the defendant, the State must be given the opportunity to correct or supplement the statement. Gray, 423 S.W.2d at 786.
The sufficiency of the opening statement is tested by accepting as true the facts contained therein together with all reasonable inferences from those facts. State v. Seddens, 680 S.W.2d 364, 365 (Mo.App.1984). An opening statement is considered sufficient when it apprises the defendant of the charges against him. State v. Burkemper, 882 S.W.2d 193, 197 (Mo.App.1994). Under these standards, it is clear that the State's opening statement in the instant case was adequate, and the trial court erred by finding to the contrary. There was no fact admitted which, as a matter of law, showed that the State's proof would be insufficient to sustain the charge against Smith.
The State is not required to state facts establishing venue during its opening statement. State v. McAllister, 468 S.W.2d 27, 29 (Mo.1971); State v. Smith, 708 S.W.2d 292, 293 (Mo.App.1986). Even though venue must be proven, it is not an essential element of an offense....
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