State v. Walker, 40479

• Decision Date: 28 April 1981
• Docket Number: No. 40479,40479
• Citation: 616 S.W.2d 89
• Parties: STATE of Missouri, Respondent, v. Mason WALKER, Appellant.
• Court: Missouri Court of Appeals

Page 89

616 S.W.2d 89

STATE of Missouri, Respondent, v. Mason WALKER, Appellant.

No. 40479.

Missouri Court of Appeals, Eastern District, Division Two.

April 28, 1981.

Mary-Louise Moran, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Jerry L. Short, Asst., Atty. Gen., Jefferson City, for respondent.

GUNN, Presiding Judge.

Appellant was convicted of first degree robbery. Based on our interpretation of State v. Biddle, 599 S.W.2d 182 (Mo. banc 1980), holding evidence of polygraph examinations to be inadmissible in a criminal trial, we reversed the conviction and remanded the case for a new trial. On motion of the state, we ordered the case transferred to our Supreme Court "for the purpose of determining whether the holding of State v. Biddle, ... shall be applied retroactively or prospectively only."

On April 6, 1981 in State v. Walker, 616 S.W.2d 48 (Mo. banc 1981), the Missouri Supreme Court held that Biddle as it applied to the inadmissibility of stipulated polygraph evidence involved procedural change and should be given prospective application only. Thus, there was no error in admitting the stipulated polygraph evidence in this case, and the cause was transferred to this court for issuance of opinion and mandate consistent with the Supreme Court's opinion.

What follows, then, is the reissuance of this court's original opinion in this cause as modified to give effect to the Supreme Court's opinion in State v. Walker, 616 S.W.2d 48 (Mo. banc 1981).

Defendant appeals from his conviction of first degree robbery for which he received a sentence of five years imprisonment. His appeal raises a grand farrago of points for consideration: (1) that the trial judge exhibited bias and prejudice against defendant; (2) the prosecutor was permitted to create an impression that the defendant had remained silent after being advised of his Miranda rights; (3) the trial court erred in granting the state protective orders which prevented defendant's in-depth examination of his own witnesses; (4) the in-court and out-of-court identification procedures were faulty, including the improper use of "mug shots"; (5) there was improper corroboration by third parties of identification testimony; (6) defendant's offered instructions regarding weight to be accorded polygraph evidence were erroneously rejected. We affirm.

On June 4, 1977 two women employees of a St. Louis photographic supply store, Jule Fuchs and Mary Lou Davidson, were robbed of the store's receipts by a knife wielding man. After the robbery the two employees viewed a multitude of police photographs but were unable to identify the perpetrator of the crime from them. On July 11, 1977, alone in the store, Ms. Fuchs was again the victim of a robbery by the same person who had robbed her on June 4. Her recognition of the offender was instant. Once more, Ms. Davidson and Ms. Fuchs were shown police photographs and each made an independent identification of the defendant as the robber. A police lineup also resulted in identification of the defendant by the two victims as the June 4 robber and by Ms. Fuchs for the July 11 robbery as well. Defendant was then charged with both robberies.

Prior to trial the defendant voluntarily submitted to a polygraph examination which determined that his answers were deceptive on three of five critical questions relating to the June 4 robbery.

On the June 4 charge, Ms. Davidson and Ms. Fuchs made positive in-court identification of the defendant. The defendant's defense was alibi: that on June 4 he had been locked inside his sister's home; that on July 11 he was visiting relatives in Chicago. Nine relatives and friends from Chicago testified that they had been with or had seen the defendant on or about July 11. Defendant was convicted of the June 4 robbery charge.

Defendant's first point on appeal relates to the bias and prejudice of the trial court. The defendant, of course, has a fundamental right to a fair trial with the trial court serving as an impartial arbiter, scrupulously avoiding any conduct which exhibits bias against the defendant. State v. Haddix, 566 S.W.2d 266 (Mo.App.1978); State v. Lewis, 559 S.W.2d 584 (Mo.App.1977); State v. Dodson, 556 S.W.2d 938 (Mo.App.1977). See also: State v. Tyler, 587 S.W.2d 918 (Mo.App.1979).

Defendant bases his allegation of bias on the following conduct of the trial court:

1. Objections made by the prosecution were sustained; objections made by the defense were not;

2. Requests made by the prosecution were granted; requests made by the defense were not;

3. Courtesy in manner and mode of speech by the court before the jury were afforded the prosecution, (sic) but not the defense.

In support of his contention, defendant has supplied a list of virtually every trial court objection and ruling. We are not persuaded by the numbers. We have carefully reviewed the record to determine whether the trial court acted unfairly toward defendant and do not find sufficient basis to uphold defendant's contention in this regard. The entire course of the trial is no paradigm to follow. Objections by defendant's counsel were fulsome and could be viewed as an effort to bait the trial court into error. Consequently, tempers were somewhat frayed during the lengthy course of the courtroom conflict. Frustration of the defense counsel was apparent. But the fact is that the trial court has great discretion in ruling on the relevance and materiality of evidence. State v. Wickizer, 583 S.W.2d 519 (Mo. banc 1979); State v. Flenoid, 572 S.W.2d 179 (Mo.App.1978). Without detailing all the objections made or rulings on them, we find no abuse of discretion by the trial court in this case, as their basic thrust related to the materiality or relevance of matters sought to be injected by the defendant's counsel. We find that neither the conduct of the trial court nor its comments directed either to the defense counsel or prosecutor gave rise to an inference that it was so biased against the defendant or his counsel or in favor of the state as to deny defendant a fair trial. See: State v. Woodward, 587 S.W.2d 287 (Mo.App.1979). Remarks of the trial court directed to counsel in ruling on the admissibility of evidence are ordinarily not prejudicial. State v. Sullins, 582 S.W.2d 732 (Mo.App.1979). They were not here.

Defendant argues that the trial court also displayed its bias by lack of courtesy toward the defense. This was a zealously contested case, with the opposing counsel urgently advocating their positions, and, at times, lapsing into ad hominem attacks upon one another. The trial judge displayed considerable patience and restraint throughout the trial and his efforts to retain control were not an abuse of his discretion nor was there a manifest injustice to defendant. See: State v. Lewis, 559 S.W.2d at 584.

Defendant's second point is twofold: (1) he asserts that the questioning of the arresting officer as to whether defendant was given his Miranda warnings was an improper invasion of the right to remain silent; (2) that the trial court erroneously denied defendant the opportunity to elicit from the arresting officer that an exculpatory statement had been made at the time of the arrest.

When arrested the defendant was given his Miranda warnings and the arresting officer's testimony was to that effect. The officer was also asked whether the defendant requested a lawyer and responded that he had not. Defendant contends that these circumstances constitute a comment on his right to remain silent. We disagree. Defendant is indeed correct that no comment may be made that an accused has exercised his right to remain silent. State v. Nolan, 595 S.W.2d 54 (Mo.App.1980). But equally true is the fact that it is permissible to ask whether the Miranda warnings had been given. State v. Johnson, 536 S.W.2d 851 (Mo.App.1976). The record contains nothing which can be interpreted as a direct and certain reference to the defendant's failure to testify or as an incursion on his right to remain silent. Certainly, the testimony of the police officer that he gave Miranda warnings cannot be considered so. Nor can the response that the defendant had not requested a lawyer be interpreted in such manner. See: State v. Hodges, 586 S.W.2d 420 (Mo.App.1979).

Defendant's reliance on State v. Lamb, 468 S.W.2d 209 (Mo.1971), is misplaced. In Lamb, the trial court did not permit a response to the question as to whether the defendant had requested a lawyer after being given his Miranda warnings, but a mistrial was not granted. Finding no violation of the defendant's rights, the Supreme Court affirmed Lamb's conviction. Defendant in this case seeks to project Lamb into a holding that an accused may not be asked if he has requested a lawyer. Lamb does not so hold. We find that the question by the prosecutor in this instance does not contain a direct or certain comment on defendant's right to remain silent, nor does it impinge upon his rights. While it is not reversible error in this particular instance, the question as posed is an unnecessary flirtation with a violation of defendant's fifth amendment rights.

In cross examining the arresting officer, defendant's counsel sought to draw from him an exculpatory statement made by the defendant as to why he did not have the need of an attorney. The inquiry was not permitted, although on his direct examination defendant did fully explain why he had not requested legal counsel. The trial court's ruling was not error, for the information which defendant's counsel sought on cross examination was a self-serving out-of- court statement which was not part of the res gestae. As such, the testimony was not admissible. State v. Nelson, 459 S.W.2d 327 (Mo.1970); State v. Parks, 576 S.W.2d 751 (Mo.App.1979). Nor was the statement sought for impeachment purposes, which would have made it relevant. Id. at 752.

Defendant next complains that the trial court erroneously granted the...