State v. Embry
530 S.W.2d 401
Mo. Ct. App.
1975
Check Treatment

*1 property; the offense taking proof of killing. requires proof of a

of murder is affirmed. judgment RENDLEN, J., J., con-

WEIER, P.

cur. Missouri, Respondent,

STATE EMBRY, Appellant.

No. 36530.

Missouri Court Appeals, District, St. Louis Division Two.

October 1975.

Motion Rehearing or Transfer

Denied Nov.

Application to Transfer Denied 12, 1976.

Jan. Gen., Danforth, Atty. Timothy J.

John C. Gen., Verhagen, Atty. City, Asst. Jefferson respondent. Kitchin, Kreisman, Arthur D. Charles Defender, Jones, Public James C. Asst. Pub- Louis, Defender, appellant. lic St. CLEMENS, Judge. Presiding charged with, The State and a robbing him Dennis found Eckstein five means of a knife dollars 560.135, (Section RSMo). ap- Defendant judgment peals and sentence of 17 imprisonment. years’ *2 402 “Q. Embry, motion for a new trial and his

In his [the defendant] your presence, dur- charges that ever offer pay brief defendant to at the testimony of a show? ing the defense alibi witness a fair

he was denied the trial court “THE asking COURT: You’re “sustaining objections” that had not been going We’re permit sponte ordering and sua the witness made question. Objection will be sustained questions. not to answer defense counsel’s “Q. After the money paid, summary A of the evidence will suffice. go all into the show? Marilyn

Victim Dennis Eckstein and An- “THE leading sug- COURT: It’s and standing drews outside Busch Stadium gestive. Objection will be sustained.” watching game through gate. a ball a wire they there As stood defendant and his com- Defense persisted, asking witness up came panion to Eckstein. Defendant Raybon in similar whether de- at held a knife Eckstein’s throat and de- fendant, money to Raybon’s knowledge, had money. his manded companion Defendant’s buy his own ticket and who had in fact containing Eckstein’s wallet took five dol- paid question, for it. To each the state reported robbery po- lars. Eckstein questions, “as to the form” of the description and from his lice the robbers being self-serving. lack of foundation and apprehended soon police defendant at a objection. sustained The court each Then: nearby restaurant. Police found neither occasions, two On money nor knife on defendant. Both Eck- prevented the answering witness from de- stein and Miss Andrews identified defend- questions: fense counsel’s ant as the robber who held the knife. anything said him— Embry— presented The defense three alibi wit- who nesses testified and defendant “THE COURT: We’re not homes, one of had met at their had later permit It’s hearsay gone uptown to a movie at an theater and paid Who the money the cash- thereafter defendant and Raybon Lorenzo ier? police restaurant where went later sug- leading “THE and COURT: It’s Raybon located defendant. testified de- gestive, Mr. Kreisman. Proceed.” had no money fendant so he and the others paid for defendant’s ticket for the movie On no either occasion did defense counsel his meal at the restaurant. and De- object to the or seek cor- court’s comments companions three were cross ex- rective action. about, on what amined the movie was and judge’s Defendant contends the interven produced in rebuttal the State two witness- on behalf prosecution tion influenced es who contradicted defense witnesses on jury thereby fair trial. denied him a the movie’s content. opinion He relies on an v. United Starr appeal critical issue on arose States, 919, 923, 614, 626, 153 14 U.S. S.Ct. direct wit- examination of defense alibi (1894) holding: 38 L.Ed. 841 “It is obvious Raybon. ness Lorenzo Defense counsel any system that under trials sought to learn from the witness whether influence of theater defendant had necessarily properly great at the weight, hearsay lightest and that his own admission. State’s word or intimation is deference, may prove received with objections were sustained to each Then, controlling.” objections” “sustained He also relies on Herman States, 362, Cir.), (5th United counsel’s without 289 F.2d 365 den., 174, objections: 7 having cert. U.S. S.Ct. made present- From the record as totally absurd. (1961), holding: “A L.Ed.2d ed, the possibility clearly present. latter role of never assume the should at The defense offered tenuous weight great of his attorney and lend the best; but, all, at admissible government. side influence it to have States, Cir., was entitled United F.2d Hunter *3 stamp disapproval placed free (1932). administering In system our by the trial court. there This judge the was not an functions of and justice calling for severe by action the attorney separate incident and the maintain the distinct; judge dignity to the must not be confused. The trial court, but an ordinary ruling one wherein a duty has to conduct the trial judge objection state’s would have settled on the carefully, patiently, impartially. and He . .We . need not reach a the issue. appearance be above even the of be must the verdict the conclusion ing partial prosecution.” to the have been different absent the cir- would rulings parallel to Missouri These run However, possibility noted. cumstances the Castino, v. In 264 S.W.2d law. 372[3— present, court have was and the trial should (Mo.1954),the declared: “The rule court 5] discouraging refrained from the same. trial exacts abso well settled that a fair is reprimands Such or admonishments as part of a impartiality on lute be called for toward should be han- his conduct his remarks. A both and in such as not dled a manner say anything must not that can be eyes defendant’s A case in the of a jury to the construed apparent full review of the record makes it “at all times main must defendant.” placed was undue burden on de- neutrality.” a status of tain that he was fendant and a fair tri- denied Johnson, 27[4-6] al.” is “a 1970). obligation.” solemn Tate, (Mo.1971). 468 S.W.2d 646[1-3] holding We in Wren believe here. appropriate the four in inci principles applied above were last Wren, related witness testifying dents de court, attempting support the de fendant sponte, interrupted There defendant had no and fense—that counsel’s cross examination of defense and witness, the movie .1 was at restaurant declaring: “. . can’t state robbery. The trial two court “sustained this line of in- any useful in see objections” the State had not made and in to the State’s response Then quiry.” immaterial, sua sponte twice barred the witness from inquiry that the answering questions. court other The trial ruled: think the the court “I thereby appeared abandon vital status you and its justified, but I will overrule well neutrality prose and assumed role of you develop this ad nauseum. allow cutor; placed this an undue burden on de complained of this .” Defendant From the court’s toward fendant. attitude also incidents where and that, possi this defense witness there was “I have ask I a clear heard and stated probability, if it, bility, not a I opposing heard counsel ask and, testimony take witness’ than at less again”; want hear it just don’t Wren, As minute, supra, value. said in “the face can’t let doctor. Court “Just best; being offered was tenuous at that, like whether to or but, all, if admissible at was enti .” . . . have it to the jury free of tled Wren the reversing the conviction stamp disapproval placed there “we as to are concerned whether court said the trial court.” conveyed the comment could have Wren in one materi- impression that the evidence differs from our case jurors There, al factor. trial ob- was in the mind of being offered jections quoted Montgom- the court prop- court’s comments were ery, 363 Mo. erly preserved (486 S.W.2d, (1952): review. l.c. S.W.2d 654[3] Here, “Even 449). counsel or point raised the others should be judicial of misconduct the his after-trial motion and his calmness dignity and the brief, but at self-restraint obvious trial did not to or seek impartiality of the judge always must corrective action because of the court’s com- maintained made manifest. The Conceding ments. defense coun- not indicate a must belief in either preserve at trial he sel’s silence failed or innocence the accused. . .We (State point McCullough, review juries know that are inclined to draw con- (Mo.1967), we now consider clusions quite and are sensitive to indi- point whether should be decided as cations of the judge’s belief as to the merits plain 27.20(c).1 error under Rule *4 the issue of tried.” supreme Our court has held the holding In the trial court’s comment was plain error rule does not cover all trial reversible error plain under the error rule errors, but has declined to “delineate the S.W.2d, the Dixon court at 463 l.c. said: precise applying bounds” for it. “However, we recognize must also if Mabery, 437 (Mo.1969). l.c. 93 .It the comments of the trial were ‘of applied case-by-case on a is to be basis such nature or reasonably tend to rights where substantial are affected jury against mind of the strong, injus there is a clear showing that defendant and thereby deny him a fair and tice will result rule is not invoked. impartial trial’ . . . the verdict can- Meiers, S.W.2d 478[1] know, . not stand. .We course, 1967). that the remarks of were not intended to However, high We revert standard of on the case, record in this and under the impartiality fairness that must be Ross, law stated State v. supra, we can- by judge. maintained a trial This includes say that not his comments were not con- nothing principle that a must say jury strued indicating a belief in that can be aby jury construed to a defend of the Appellant accused. is enti- Casino, prejudice. (State ant’s supra). a new tled to trial.” “correctly judicial states rule Moore, guidance.” In Gray, State v. 503 S.W.2d 457[8 9]— (Mo.App.1973), at the close of the State’s case court addressed the defend Appellate diligently guard courts a de- sworn, sir; ant: “Will you going be are right a manifestly im- testify?” objection No was made at tri judge. Dixon, partial al, in reversing 27.20(c) but under Rule (Mo.1971) the trial court in rul- supreme said: “This is for the reason ing prosecution on right sought self-incrimination ambiguous argument made comment protected be is fundamental prosecuting attorney’s duty about system justice.” to our objec- prosecute.2 Defense counsel made no case, Dixon, appeal- tion to the court’s comment until he In our as in say we cannot speaking duty did not ed. of the trial court’s construe the trial court’s affecting rights making objection, 1. “Plain errors substantial “THE COURT: be considered motion for new sustained, and the will be and the appeal, court, in the or on discretion of the will be instructed to that it is pre- though not raised in the trial court or duty prosecute per- review, defectively or served for raised or guilty. duty sons that His is not to preserved, when the court deems that mani- prosecute people guilty.” that are not miscarriage injustice justice fest has resulted therefrom.” anything said him— defendant, adversely to the conduct Embry by an obvious- right to be tried [defendant]? — was, Gray, funda- as in impartial ly going The Court: We’re not permit justice. system to our mental hearsay.” It’s Here, four-time the trial court’s in the second The second incident arose examination intrusion into cross question thereafter: could only defensive witness of defendant’s Embry, your presence, ever by the as the court’s construed at the show? offer It was not the alibi defense. disfavor of You’re asking compatible the fair trial to which with permit We’re entitled. We consider that Objection be sustained.” 27.20(c). plain error under Rule to be Prior to these on three occasions incidents trial court failed to accord We find the pages within two transcript judgment fair trial. general of the same nature were asked and the cause is remanded for a reversed objections part on the new trial. sustained.1 KELLY, J., concurs. oc- complained The other incidents pro- on the fifth curred and sixth *5 STEWART, J., dissents. pounded thereafter: STEWART, Judge (dissenting). paid money to the cash- Who majority opinion we ier? In the format of the the substance of defend-

will first consider The leading suggestive, Court: It’s viewing argument. ant’s Kreisman. Mr. Proceed. in this case it is neces- of error contention money Q. paid, you After the leading to the sary to view the incidents into the show? go all trial court’s sua action. All of It’s leading suggestive. The Court: complains of which defendant comments Objection be sustained.” place during took the direct examination of Raybon, one of three alibi witness- Lorenzo pages Within three before these by defendant. es called sought were asked defendant had the same information on five elicit different incident defendant The first of which At did defendant make occasions.2 no time complains follows: object to the form of the anything Allred: I’ll time Mr. said there at the Was pay who would for the show? about Objection. The It asks for hear- Court: Sustained. Allred: Mr. say. The Sustained. Court: you Do know whether or not he had Q. money? any Embry any Did Dwane offer to object question, Q. I’ll Mr. Allred: money? lays he a foundation of some unless personal first A. No. knowledge. Objection. That calls for Mr. Allred: The Court: Sustained. Sustained. Court: Embry along you go with Q. any your Did he have brother? anything said about who Q. you know of on him? pay? I’ll Allred: Mr. form of Objection. leading. Allred: It’s Sustained.” The Court: The Court: Sustained. you knowledge Embry any money his Do have about Q. Did Dwane 2. “Q. you condition? know of? financial on him that proof respect objec- any impropriety might an offer of with which attach to a sustained, yet persisted that were he judge’s tions remarks are waived the failure following the inquiry. same lines of object at time are made. State Hudson, supra. The comments of the court were not di- toward defendant rected nor toward the I do not believe case calls for that this persistence but to witness counsel’s in fol- application of the “plain error rule” 27.- lowing inquiry just a line of that had been my 20(c). opinion State McCullough, upon by the court. ruled 79 (Mo.1967) is controlling. In McCullough on This case can be cross-examination readily distinguished of State’s Wren, following witness S.W.2d 447 occurred: 1972). The court there stressed the fact attorney]: you [Defendant’s “Did see expression that the court had used the “ad pay for it? them and noted that the nauseum” court there What’s the characterized the “evidence offered that? [by as absurd.” Here the defendant] The Witness: No. court’s comments were directed to the form questions only, questions which had got What’s that to do with previously been ruled. The remarks of issues in this case?” court did indicate a belief in defend When objected to a question impugn the guilt, credibility ant’s of de prosecutor asked the court said: witness, tend to humiliate defend “Why don’t let him ask ques- ant his counsel or indicate a deliberate * * just gets tion. asking started attempt by influence the know what I don’t is.” obligation While a has the to assure a a fair trial and should act with When the impartiality; he must also confine the propounded defendant’s counsel the *6 within the relevant issues and maintain or remarked: court Hudson, v. der and decorum. 358 Mo. “I don’t know what it is. 424, (1948). 441 a 215 S.W.2d When court Trying to shift the burden? Is that it? improper has ruled an issue it is for counsel the purpose What’s of it?” ruling of the court.3 I Supreme The would hold that at most actions of the Court in that case said l.c. provoked. court were 81: Headley, State v. 18 (Mo.1929); Hudson, 37 S.W.2d State v. su party “If a believes that remarks

pra. prejudicial I find no error. cause, he should im- mediately and oppor- Defendant made afford the court an no to the rul- tunity to ings general any the court he correct impres- until filed a erroneous sion, Judge timely conduct of the in his issue is not Motion for a New Trial.4 for general As a rule when raised the first time in a motion Objection. Only Mr. Allred: the defend- the cross-exami- numerous occasions know of that. ant would nation of the witnesses and on direct exami- witnesses, nation of without your objections by State, Why prior brother for ordered Q. the show? not the witnesses answer Objection. Allred: It asks for a self- propounded inviting to such witness and statement, serving Your Honor. objection to be made the State which the Sustained.” sustained; court thereafter that such action prejudicial the court was to this defend- 7-106(A). 3. Rule DR ant and indicated to the inserting 4. “That the court erred in itself against this defendant and in favor of the this cause as an advocate into the trial of State;” State, in that the behalf court did on trial, by the trial remarks made each involved (citations omitted) new testimony given court on the court.” in- before in are these remarks themselves Nor injustice or miscar- ‘manifest dicative here, perceive I do not substan- “sound justice’ invoke consideration riage of manifestation, a strong tial clear Rule 27.- plain error under Criminal injustice showing miscarriage omitted). 20(c) (citations V.A.M.R.” if the is in- justice will result rule Barron, Meiers, also See 412 S.W.2d voked.” Hudson, (Mo.1971); and su- pra. I For either of the reasons herein distinguishable from readily This case judgment. affirm Dixon, (Mo.1971) reasonably could which comments of court re-

viewed

flecting of the defendant. upon in Dixon was effect of comments prosecute prosecutors only innocent,5 strongly implying guilty because he was The comments the court in prosecuted. Missouri, Respondent, STATE of solely to present case were directed understand, counsel, well as the could RANDALL, Appellant. Gene Darrell upon which confined to matters great ruled to a already court had No. KCD 27233. question only. form extent Appeals, Missouri Court Gray, 503 Nor do I feel that State v. City Kansas District. authority (Mo.App.1973) Nov. 1975. 27.20(c) this of Rule case. the invocation Gray the trial court made direct refer- Rehearing Motion and/or Transfer testify. failure to defendant’s ence Dec. Denied the fact emphasized defending pro se and that neither he assigned to sit with him made nor objection. specifically The court limited *7 to the cases in which direct refer-

Gray is made failure a defendant

ence testify clearly such distinguished Referring bar. from the case at

cases supra, eases the

McCuliough, and similar said, cases Gray “None are distinguishable in that and each

helpful, gather from that making objection, Do I Mr. Howard: He is “The Court: prosecute prosecutor duty sustained, has the and the will people who are not innocent? it is be instructed to per- prosecute sure does.” duty duty guilty. His sons that prosecute people guilty. that are not JURY) (OUT THE THE OF HEARING OF I don’t frankly, believe I understand Howard: I am Howard: “Mr. Quite again. that, What was Honor. Your for a mistrial. I think the the Court ask given impression duty Court has I said that it is only attorney prosecutes prosecute persons those that are prosecutor not to persons crime.” who are negative. I used a double innocent.