State v. Sykes

• Decision Date: 09 March 1982
• Docket Number: No. 1,No. 62783,62783,1
• Citation: State v. Sykes, 628 S.W.2d 653 (Mo. 1982)
• Parties: STATE of Missouri, Respondent, v. Clay Otis SYKES, Appellant
• Court: Missouri Supreme Court

Page 653

628 S.W.2d 653

STATE of Missouri, Respondent, v. Clay Otis SYKES, Appellant.

No. 62783.

Supreme Court of Missouri, Division No. 1.

March 9, 1982.

James W. Fletcher, Kansas City, for appellant.

Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

DORMAN L. STEELMAN, Special Judge.

This is a direct appeal from a jury conviction on two counts of robbery first degree, Section 569.020, RSMo. 1978, with sentences of life imprisonment on each count to run concurrently. This court has jurisdiction pursuant to Mo.Const. art. V, Section 3.

The sufficiency of the evidence is not challenged, thus permitting a brief summary of pertinent facts to suffice for purposes of disposition of this appeal.

The record reveals that the following facts, if believed, would support the jury's verdict. At about 2:30 a. m. on May 27, 1980, two armed men, faces covered with ski masks, one with a shotgun and the other armed with a handgun, held up two employees of Church's Fried Chicken as they were locking up for the night. One of the men wore surgical gloves. A third employee was being picked up by her mother who observed the two armed men and sped away in her car to call the police. The men walked the employees to the back of the store, took one handbag with $55.00, and made the men lie on the ground. A passerby was captured and made to lie down with the two employees. The men were threatened, the robbers talked about "wasting" one of them, a gun was aimed at one of them and the trigger was pulled, and one employee was forced to enter the store to open the safe. While in the store, the police arrived and the man with the shotgun who had been standing guard over the two outside on the ground ran away. The employee inside the store started to pull his own gun on the robber when the police arrived and he ran out to the police car leaving one robber, Clay Otis Sykes, inside. For about thirty minutes the police and the employee watched Sykes walk back and forth under the store's overhead lights. He took his mask off and his face was seen by the observers. One officer spotted a man on the roof of the store and Sykes was apprehended. He had gone through a ceiling vent and a ventilation grille. At 8:30 a. m., the police were called back to the store when a handgun and surgical gloves were discovered in a chicken processing vat. Sykes testified that he was on the roof to enter the store to steal chickens and that he was a witness to the robbery.

Three points of alleged error are raised and briefed by appellant. The first one concerns the statements of the court during an argument for an evidentiary hearing on a Motion to Suppress Tangible Evidence out of the hearing of the jury. The comments of the trial court of which appellant complains were as follows:

"I guess what I'm really saying is we have gone through one charade here on a pre-trial motion that you filed, which was totally frivolous. This is something that is normally handled in the normal course of events and I don't see the need to have a pre-trial hearing on it".

Appellant's counsel answered that the motions were filed in good faith and that the appellant himself did not feel they were frivolous. The court responded that appellant was not a lawyer, that

"(Y)ou are the lawyer, and you are the one that has filed the motions, and I listened to the evidence and there wasn't anything at all to the Motion to Suppress the pre-trial identification, nothing. There was no substance to it at all, and now you come up with this motion that, on its face, appears to be of the same kind. It just seems to me that if the evidence is there and they can prove it, fine, and you have a right to disprove it. You have a right to cross-examine and show the discrepancies. But it's a question-it appears to me to be an issue, assuming what Mr. Bell says is going to come into evidence, we can't have a pre-trial hearing on everything, and this doesn't seem to be an appropriate one. The only thing I can see is that if there is a gun involved, that a gun can inflame jurors and that if we got the gun out in front of the jury and the gun never got hooked up with the defendant, we could have a little problem there. I am then faced with a decision, I am sure you would make a motion for a mistrial, and then I am faced with that decision. But I am willing to run that risk because we can't have-

Mr. Bell: Well, I know for a fact that the gun will be tied into this crime".

Appellant contends that the above remarks by the court were demeaning to appellant's counsel precluding argument on appellant's Motion to Suppress Tangible Evidence. He argues that in those instances where the trial court expresses an opinion, it should avoid any indication of feeling against the defendant. He concedes that if that opinion were negative but outside the presence of the jury, as in this case, there may not be an abuse of discretion. He alleges, however, that the trial court's remarks carried over into the trial itself, to the prejudice of appellant.

While there is error, if the judge intermeddles or otherwise exhibits a manner prejudicial to the accused, an objection must be made or the error will be considered waived, unless the effect is so prejudicial that it cannot be removed. State v. Lewis, 559 S.W.2d 584, 586 (Mo.App.1977). In the instant case, the comments of the court went unchallenged by the defendant at the trial. He also failed to include this allegation of error in his motion for a new trial. We, therefore, need only consider whether the prejudicial impact of the comments was so grievous as to have resulted in manifest denial of a fair trial to defendant constituting plain error.

The trial court must at all times maintain a position of absolute impartiality and neutrality and should avoid any conduct which might be construed as indicating a belief on the part of the judge as to the guilt of the defendant. State v. Tate, 468 S.W.2d 646, 648 (Mo.1971); State v. Hurd, 550 S.W.2d 804, 806 (Mo.App.1977). The proper test is to determine whether remarks made by a trial judge in a criminal prosecution could have prejudiced the minds of the jury against the defendant, State v. Landers, 596 S.W.2d 487, 488 (Mo.App.1980).

In no way did the trial court's remarks indicate a predisposition on the part of the court that the defendant was guilty. But even if it is assumed that the court's remarks were demeaning and prejudicial, appellant admits that they were made outside the presence of the jury. His theory is that the remarks carried over into the trial itself to the prejudice of appellant. But he cites no authority, nor did we discover any, which supports that proposition. In fact the cases say just the opposite. In State v. Newberry, 605 S.W.2d 117, 124 (Mo.1980) the court in considering the question of whether the trial court's remarks denied the defendant a fair and impartial trial stated: "a trial court's remarks or suggestions outside the presence of the jury do not have such effect". In this case, the remarks outside the presence of the jury could hardly have conveyed to the jury any impression regarding the trial court's ruling and the incident did not...