State v. Viviano

• Decision Date: 30 August 1994
• Docket Number: Nos. 62886,64824,s. 62886
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Gerard VIVIANO, Defendant/Appellant. Gerard VIVIANO, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
• Court: Missouri Court of Appeals

Page 748

882 S.W.2d 748

STATE of Missouri, Plaintiff/Respondent, v. Gerard VIVIANO, Defendant/Appellant.

Gerard VIVIANO, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.

Nos. 62886, 64824.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 30, 1994.

S. Paige Canfield, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Beal, Asst. Atty. Gen., Jefferson City, for respondent.

REINHARD, Judge.

Defendant appeals from his conviction by a jury of second degree robbery, § 569.030, RSMo 1986. ¹ He was sentenced by the court as a prior, persistent and class X offender to a twelve year prison term. He also appeals the denial, after an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. We affirm.

The evidence reveals that on June 27, 1991, at approximately 7:20 p.m., Officer John Vogt of the St. Louis Police Department was on patrol with his partner in the Soulard neighborhood of St. Louis when they were dispatched to Ninth and Russell to investigate a report of robbery. As they arrived at the scene, Vogt observed defendant being held on the ground by another man. The robbery victim was also nearby. Vogt interviewed victim, who indicated that defendant had robbed her. Defendant was arrested and taken into custody.

At trial, victim testified that on the evening of the robbery she was walking north on Ninth Street near Russell when she noticed a white man with a beard and long hair (defendant) coming toward her on the sidewalk. Just after the man had passed, she "[f]elt my [gold] chain go and I was thrown to the ground." Victim grabbed defendant's legs in an attempt to impede his escape and started screaming. Defendant eventually escaped, but the incident attracted the attention of onlookers who came to victim's aid.

Rudolph Gabriel Brock, Jr. testified that he was walking south on Russell when he heard victim scream: "Stop him. Stop him." He looked up and saw defendant struggling to get away from a woman who had grabbed him around the leg. He saw defendant kick free of victim's grasp and flee. Brock pursued defendant and when defendant stopped his flight to confront him, Brock tackled and wrestled defendant to the ground. Brock then restrained defendant until the police arrived. Brock testified that he never lost sight of defendant during the short chase.

Nicole Johnson testified that she witnessed a man (defendant) knock down victim and immediately pursued him with a baseball bat. However, Brock had tackled and subdued defendant prior to Johnson reaching him. She noted that the person Brock had subdued (and the police had arrested) was the same person she had seen attack victim.

Victim testified that she had never lost sight of defendant after he had escaped her grasp. After defendant had been subdued, she approach him and demanded the return of her chain. Defendant complied, opening his hand and releasing the chain. Victim also demanded the return of the medallion which had been on the chain but defendant told her he did not have it. She returned the next day to the robbery scene, and eventually found the medallion.

Defendant testified on his own behalf. He stated that he was in a Soulard bar after work on the evening of June 27, 1991. After he had been in the bar about forty-five minutes, he left to catch a bus home. He stated he remembered little of what happened after leaving the bar because he was "real high". He said that in addition to drinking at the bar, he had sniffed "tulio" (defendant's slang for synthetic reducer of toluene, apparently a glue thinner) immediately after leaving the bar. He remembered a man shouting at him, remembered being tackled, and remembered seeing a woman with a baseball bat.

In his principal point on appeal, defendant asserts the trial court abused its discretion "by overruling [his] motion for a new trial on the basis of juror misconduct ... in that the jury considered facts not in evidence where a member of the jury brought a definition of the word 'force' from a dictionary into the jury room during deliberations and the jury was thereby improperly influenced."

After the jury had returned its verdict, and had been discharged, defendant's counsel told the court that she had been informed by two jurors that a definition of the word "force" (photocopied from a dictionary) had been present in the jury chamber when the jury arrived for the second day of deliberations. ² In the hearing on the motion for a new trial, two jurors testified that this allegation was correct. Juror Crump remembered seeing at least three copies of the definition (on which he thought the definition of force was circled) and stated that the definitions had been read by over half the jury. He also stated that the dictionary definition was "talked about" though he stated it had no influence on his deliberation. Juror Mancuza also testified that the definition had no effect on her verdict. She stated that she was sure that two jurors had looked at the definition. The affidavit of another juror (which is not included in the record on appeal) was also introduced into evidence by defendant. ³

Section 547.020 provides (in part) that a trial court may grant a new trial "[w]hen the jury has received any evidence, papers or documents, not authorized by the court," § 547.020(1), "or has been guilty of any misconduct tending to prevent a fair and due consideration of the case[.]" § 547.020(2). Thus, a new trial is not always required whenever a jury is exposed to materials not properly in evidence; rather a new trial is required only if a defendant has been prejudiced. State v. Kelly, 851 S.W.2d 693, 695 (Mo.App.E.D.1993). On appeal, we must decide whether the incident resulted in prejudice to the defendant such that, as a matter of law, the court abused its discretion in refusing to grant defendant's requested relief. State v. Suschank, 595 S.W.2d 295, 298 (Mo.App.1979).

Suschank is the only Missouri case directly confronting the use of a dictionary definition during jury deliberations. There, the jury was having trouble deciding the meaning of the word "reasonable" in "reasonable doubt". ⁴ The jury asked the bailiff to provide them with a dictionary during deliberations, and the bailiff did so without the knowledge of the court or counsel. After the presence of the dictionary was discovered, defendant made a motion for a mistrial which was overruled by the court after the jury had returned its verdict. After interviewing the jury, the court determined that the use of the dictionary had not impacted the jurors' conclusion and that it was clear that the verdict would have been unchanged in the dictionary's absence.

We affirmed the trial court's decision, holding that while it was improper for the jury to have access to a dictionary, such use was not per se prejudicial. Id. at 298. We noted that the verdict need not be set aside if the harmlessness of the information be shown, and then stated: "It is apparent ... that the jurors found no definition of 'reasonable' in the dictionary which differed from their knowledge of the ordinary usage of the term and therefore the court's determination that the defendant was not prejudiced by the use of the dictionary was not an abuse of discretion." Id.

We note that there appears to be a distinction between a jury's use of dictionaries and more specialized references such as law books in determining whether a defendant is prejudiced by the use of outside reference materials. "A reference to such an outside source as a dictionary is not prejudicial per se and often constitutes harmless misconduct. [citing, inter alia, Suschank ].... [A] dictionary cannot be equated with a law book, a dictionary being designed for general consumption and law books for those with special training." State v. Sinegal, 393 So.2d 684, 687 (La.1981). "[T]he definition of words in our standard dictionaries is taken as a matter of common knowledge which the jury is supposed to possess." State v. Asherman, 193 Conn. 695, 478 A.2d 227, 252 (1984). An annotation at 35 A.L.R. 4th, 626, 645-51, cites many cases (arising under varied circumstances and under numerous standards for judging whether a defendant has been prejudiced) in which jury or juror use of a dictionary has been held to be harmless. ⁵

The real danger of a jury's dictionary use is that "jurors will use the dictionary to construct their own definitions of legal terms which do not accurately or fairly reflect applicable law." United States v. Birges, 723 F.2d 666, 671 (9th Cir.1984) (emphasis added). There is no such danger where the word defined is not a legal term, but is one taken as a matter of common knowledge which the jury is supposed to possess. See State v. Cummings, 33 Or.App. 265, 576 P.2d 36, 37 (1978). An examination of the relevant statutes, and the accompanying comments, make clear that the term "force" in the context of second-degree robbery is such a "common knowledge" term.

"A person commits the crime of robbery in the second degree when he forcibly steals property." § 569.030.1. "Forcibly steals" is defined in § 569.010, which provides (in relevant part):

(1) "Forcibly steals", a person "forcibly steals", and thereby commits robbery, when, in the course of stealing, as defined in section 570.030, RSMo, he uses or threatens the immediate use of physical force upon another person for the purpose of:

(a) Preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking; ....

The Comments to the 1973 Proposed Code following V.A.M.S. § 569.020 (1979), essentially states that "force" is a "common knowledge" term:

The definition of "forcibly steals" in § 569.010(1) is based on New York Penal Code § 160.00. The idea combines the concept of stealing with the element of force or threat of force used to accomplish the stealing. It was felt that the term "physical force" could...