State v. Goree

Missouri, Respondent, STATE GOREE, Appellant.

Lavenia J.

No. 70112. Missouri,

Supreme Court

En Banc. 15, 1988.

Nov.

Rehearing Denied Dec. Robertson, Lambdin

Henry Deborah Stockhausen, Louis, appellant. St. Webster, Gen., William Atty. Byrona L. right waive her jury to a Kincanon, Gen., Atty. City, Asst. claims she has an right Jefferson absolute to waive a jury I, 22(a), under respondent. Mo.Const. art. and §

that the failure to sustain the motion was ROBERTSON, abuse of discretion. Judge. trial, Prior appellant orally to

A moved to jury appellant, convicted Lavenia J. right jury proceed waive her to a trial and Goree, of three counts of murder in the to trial Appellant argued before the court. 565.020.1, degree. first Section RSMo argument then and renews the here that a 1986. The trial court sentenced her to judge trial dispassionate would be a more three concurrent life sentences without fact, impartial and given trier of the emo- possibility probation parole. ap- She tionally charged nature of the case and peals, alleging (1) trial court failing error reliance on the defense. grant her waiving right motion her to a judge motion, The trial overruled the stat- jury trial, (2) failing to declare a mistrial ing heavy that due to the penalty involved because alleged prosecutorial miscon- murder, degree with first he was reluctant duct, (3) failing to declare a mistrial to hear the case jury. without a after the improperly argued an adverse inference from appellant’s failure I, 22(a), Mo.Const. art. reads: § to call a Appeals, witness. The Court of right That the by jury trial as here- District, Eastern by affirmed memorandum enjoyed inviolate; tofore shall remain ... 30.25(b). order. granted Rule We transfer every and that in any criminal case de- to consider the by appellant. issues raised may, fendant with the assent jurisdiction. We V, have Mo.Const. art. court, jury waive a trial and submit the 10. Affirmed. § court, trial of such case to the whose

finding shall have the force and effect of added). I. jury (emphasis verdict The facts are July uncontroverted. On Singer States, 24, In v. United 380 U.S. 17, 1985, appellant picked up her three (1965), S.Ct. 13 L.Ed.2d 630 daughters, Crystal, seven; age Danielle, Supreme that, United States Court found four; age Melissa, age twenty-one although right a defendant waive the months, Vent, Bryan boyfriend’s jury to a trial under Patton v. United son, baby from the sitter States, and took them 281 U.S. 50 S.Ct. 74 L.Ed. home. Shortly home, after entering (1930), there is “no constitutional im- bedroom, went into her pediment conditioning brother’s a waiver of this got gun closet, right from the on the consent prosecuting shot at her children, three fatally attorney when, wounding all and the trial if either three. Bryan consent, simply Vent was not refuses to the result is harmed. subjected impartial defendant is to an Appellant then dialed requested 911 and by trial jury very thing the constitu- —the three police. ambulances and the When guarantees tion Singer, him.” 380 U.S. at arrived, police all three children were 36, 85 S.Ct. at 790. alive; each died shortly Appel- thereafter. (Mo. v. Taylor, 391 S.W.2d 835 shooting lant admitted her children to the 1965),this Court found that a police black defend way police on the to the station and right ant had no absolute to waive again taped trial, confession later. At simply because of fear that a appellant relied on a defense of not guilty give weight testimony undue to the by reason of a mental disease or defect. agent of a white narcotics during a time of heightened racial tension. The Court stat II. ed: A. Under the constitution and the rule Appellant’s point assigns first error to both accused and court must assent and permit trial court’s failure agree her to that the issues of fact a criminal you Q. Did do that you because case be determined court thought significant? by jury. that was in the traditional form trial right, either Well, accused has absolute mentioning my report, it in A. statute, rule, constitution, or court report it’s mentioned it because that the court elect he shall be tried for pretty procedure much the standard jury. without a person’s legal his- that we the us review significant I more in this tory. think it’s 836. Taylor, 391 S.W.2d at also State See case, lady gets later because (Mo. 1975) Johnson, 690 530 S.W.2d banc —this psychotic thinking incorporated into her a (court upheld denial of court’s people that somehow know about jury motion for waiver of trial on basis charge. previous shoplifting Taylor Singer). Well, Q. sympathy it evoke from did right to Appellant has no absolute you? By unambiguous a waive object I the rele- MS. MARXKORS: constitution, right language vancy, Your Honor. assent court. upon conditioned No, THE overruled. COURT: a motion to waive a Failure sustain specif- you A. Could be a little more The trial is not an of discretion. abuse ic? point is denied. Q. you The that she that she fact told

B. eat, stealing that evoke was food did in point alleges sympathy? error Appellant’s second declare a the failure of the trial court to sure, I’m I don’t recall. really A. not alleged sponte sua because of mistrial Well, investigated Q. you had what Appellant con- prosecutorial misconduct. mas- that she stolen that and found had questions tends that the asked eyeliner and make- lipstick cara and based witnesses that were a dif- up instead that have made would upon facts not in which were evidence ference? that which were untrue. claims in terms sympathy A. In terms of or questions attempt an to discred- these were having— charge of this supplied appellant it the information feeling, Q. you terms of The—the—in and were support of her defense informa- eighty-five percent of this since Specifically, in bad faith. asked coming from her. tion is First, argues are she contentions twofold: A. Uh-huh. prosecutor should not have been that the Q. way you terms of cos- to state that stole allowed feel about her. when cross-exam- metics of food instead my final A. You mean in terms of Armour, ining psychologist Dr. Michael opinion? Second, appellant testifying appellant. for Q. Yes. to Ms. urges that statement State’s Honor,— Your MS. MARXKORS: Kuela-Branz, for testifying worker a social No, think so. A. sir don’t complete appellant, of founda- MARXKORS: —lack MS. enrolled at any of the which she courses tion. community college was untrue. No, he answer THE can COURT: He said Go ahead. it’s overruled. it can stand. Armour’s pertinent portion Dr. The testimony follows: trial, appellant objected At you that

Q. right. appeal, All When she told of foundation. On question’s lack stealing charge shoplifting for however, appellant objects she had State’s to the eat, your mentioned that you food to in bad claiming they were asked questions report? re appellate for preserve To error faith. suffi- view, objection must be made with Yes,

A. sir. any grades specifidty got any dent to inform the trial court of that she never ground excluding the courses that she took at Forest Park reason evi- College? Community dence. Did she in effect Lang, State v. (Mo.1974); drop them? Cannady, 660 S.W.2d out of all of State v. (Mo.App.1983). objection at tri- report A. I didn’t to see cards ask preserve prosecu- al thus did not a claim of or— appellate torial faith bad review. We Q. point, she But at one start- time— plain and will reverse review for error January ed 17th and she con- on was injustice if we find or a miscar- manifest something early cerned as about Janu- riage justice alleged as a result of the ary the related to some 27th as it courses error. Rule 30.20. there, is that correct? A. Yes. Normally, expert may witness an be Q. regarding surprise you cross-examined facts not in greatly evi Would it to qualifications, just dropped dence to test his skills and learn that she out all of of credibility, validity or to test the them? weight opinion. of Myers his v. Bi-State No, it A. was—it was a new because Development 567 Agency, S.W.2d 643 thing go register for her to even (Mo. 1978); Deyo, banc 387 S.W.2d school, setting interact in that to even (Mo.1965). present case, In added). (emphasis designed the state’s cross-examination was ap- Later defense counsel showed that the validity, test the credibility, weight to pellant one complete Again course. expert’s opinion by finding what, out specifically object defense not counsel did any, impact emotional the information again question. plain to the review for We appellant gave might that Dr. Armour have error. opinion, had on his and whether different Appellant relied on an de “facts” opinion. would alter that On this Arguments fense. of defense counsel basis, question improper. was not prod acts characterized as the Moreover, support the facts the state’s great uct of stress and her love for and question. Appellant stated to Dr. Armour losing fear of her children. Statements she “stole from that some food a Schnucks’ complete that appellant did not her classes any store because she have didn’t food for college at the do community not show that her children.” The items stolen from sane; inability instead her to was predominantly Schnucks1 were cosmetic to show that she did the classes tends finish items; items were food a choc- complete projects undertaken. The pound sausage. olate bar and a Given jury could infer that stress items, nature of the stolen it cannot be suffered caused this result. We fail to said that the state’s cross-examination re- perceive error in the any prejudicial state’s lied on facts either which were untrue or questions. court did not err in The trial offered in bad faith. failing grant to a mistrial. C. alleges that also certain point assigns Appellant’s error to third questions asked of Ms. Kuela-Branz were declare a the trial court’s failure to mistrial improper. In to reference tak argued prosecutor after an adverse in- ing classes Community at Forest Park Col of the defense to ference from the failure lege, the State asked: originally call a Defense counsel witness. Q. witness, Okay. you Roy Yourself? Are aware endorsed Anderson a but she, just you that a second. Are did not call him as witness. The State aware Ones; Quencher Lip lipstick; 1. “The list read: one container of Wet one one Bio-Clear make- pound sausage; eyebrow pencils; pack- Jimmy eight-ounce curler; up; Maybelline Dean an two one bar; Unisom; Hershey eyelash age rin; Joseph’s aspi- one of St. chocolate one two bottles cards; blush; lotion; Almay picture one book. Lauren one foundation one deck of Uno appellant. pri- In also that called Anderson as a rebuttal witness. Anderson testified closing argument murders, appellant “squir- stated: or to the acted relly.” these was Neither of statements Judge everything You’re the that just you’ve you point appellant’s theory cannot with heard and inconsistent says and one person on what one what case. whole, person it as says. Take or— take it as a Collins, 291, 165 Mo. State v. Tuesday after- whole. Until (1942), explained party when a noon, Doc listed as a defense wit- was may opposing party’s fail comment on an ness. ure to call a witness. Honor, Your I’m MS. MARXKORS: words, a witness be said other going object there’s evidence peculiarly have to one been “available” that. action, party upon an so that going THE I’m COURT: sustain produced him in party’s failure to have that. court inference will that his tes- arise I ask MS. And MARXKORS: unfavorable, timony have been disregard that. be instructed to when, party’s opportuni- such because disregard THE will COURT: ty for or knowledge of control over that. witness, community or the of interest Honor, MR. Your PEACH: the Court two, prior and between the statements record that he was listed as a will show witness, declarations of the it would be State’s—defense witness. reasonably probable that the witness THE It is sustained as to COURT: to called the trial have been to disregard will that. that and the testify party except for the fact for such Everybody MR. that came PEACH: known that that it was either or feared here and— testimony have on stand would Honor, may MARXKORS: MS. Your damaging rather than favorable. been approach the we bench? 649, Collins, at quoting 165 S.W.2d Cha THE Yes. COURT: v. & Accident Insur varies National Life (Counsel approached bench and 790, Co., (Mo.App. 110 S.W.2d 794-95 ance had:)

following proceedings were 1937). Honor, I MS. MARXKORS: Your want only can be An adverse inference that, ask for for that to a mistrial equally drawn the witness is not where instructed, and be comment Mr. Peach Clark, parties. v. available to both State not he be instructed that it was evidence 928, (Mo.App.1986). 711 932 Where S.W.2d prosecutorial it’s total miscon- the—a rule has no appears at witness duct to make that reference. jury might application. Any inferences the No, going THE that’s to be COURT: his effect on draw Anderson or regarding go It De- denied. doesn’t level. appellant drawn from his testimo could be nied. ny at trial. case, opening In this state- Roy Anderson as “anoth- ment referred to par regarding which Any argument major [appellant’s] prob- er source of at trial is irrelevant. ty called a witness then lem.” Defense counsel described specific objection not offer Melissa, Anderson as “the father The attorney’s argument. to the circuit child, [appellant] she had a youngest is, therefore, preserved appel point fear of him....” terrible point for We examine the late review. counsel, by defense On cross-examination plain Rule 30.20. error. that the had Anderson admitted The trial court sustained his, police complained to the about to dis objection instructed the Anderson’s, police harassing her. The con- repeated efforts regard Peach’s work; Mr. after that meet- Anderson at tacted A has argument. trial court stop harassing make the agreed Anderson ing, determining broad discretion in suggest whether to I the trial court and this Court grant a mistrial and will be reversed fulfill their constitutional and lawful duties for an abuse of that discretion. v. State upheld when the law followed —rath- 169, (Mo.1973); Raspberry, 452 S.W.2d er conjuring up than reversible error where (Mo. Grady, State v. 691 S.W.2d 303-4 none exists.

App.1985). We conclude that the trial

court did not abuse its discretion in re- BLACKMAR, Judge, dissenting. fusing to sustain the motion for a mistrial sympathize with the sentiments ex- and that prejudice suffered no pressed Judge opinion. Welliver’s It is thereby. point The is denied. necessary appellate often judges, of duty, express disagreement line with III. judges prosecutors. circuit I believe judgment of the trial court is af- that the trial should have undertaken firmed. requested. as bench trial responsibility It is the of prosecutor, DONNELLY, RENDLEN and court, an officer of the to see that HIGGINS, JJ., concur. defendant is afforded a fair trial. State v. Selle, (Mo.1963)(Pros- BILLINGS, C.J., in separate concurs duty ecutor has to refrain from conduct opinion filed. engender prejudice calculated to or excite BLACKMAR, J., separate dissents in passion defendant). against also, See opinion filed. Tiedt, 357 Mo. 206 S.W.2d 524 (1947). WELLIVER, J., separate dissents in majority opinion prejudicial finds no opinion filed. prosecutor’s error in the conduct. Here BILLINGS, Justice, concurring. Chief prosecutor persisted injecting possi- the in bly prejudicial material about defense coun- I fully concur in principal opinion. the I witness, sel’s failure to call an endorsed write to take issue dissenting opin- with the Welliver, objection after was sustained. The tran- ion of J. script does indicate that his comments The dissent first prosecut- criticizes the by jury. were not heard the This same ing attorney filing particular for the prosecutor was held to have acted in bad charges by supported law and —authorized faith, error, resulting in sim- reversible for by Next, the evidence submitted. the dis- Thomas, ilar misconduct in sent condemns the prosecuting attorney for case, (Mo.App.1976). personally case, prosecuting the rather by the court found “a studied effort the turning than it over to a subordinate —ei- prosecutor jury, by to convince the the And, ther by course authorized law. the framing questions by manner of and stat- prosecuting dissent demeans the attorney ing presence jury of the as true for the manner in which the case was events not established evidence....” presented although asserting legal no er- — Apparently Id. at 140. the lecture went calling ror for reversal. unheeded. Finally, is the dissent’s censure of a way knowing There is no of the cumula- learned, highly respected, experienced present in tive effect his misconduct the (nearly years) judge permitting trial jury, case had on the and I too believe that jury temper a to resolve the issues and require the circumstances of this case our (life justice mercy probation with without case, special consideration. In this where parole, penalty), or rather than the death and, further, sanity solely of rested failing in the state’s evidence to “lean over back- appellant prosecutor’s to see that on the cross-examination of wards had the fairest possible.” expert trial and the statu- witnesses I tory presumption sanity1, of suggested by Judge choose to The statutes Si- appellant err on side only put appellant revolving the and would meone can in a remand for a trial. impris- new door between mental treatment and possibility probation onment without or

WELLIVER, Judge, dissenting. parole. pa- Life commitment for mental Society is tients not treatment. abandoned respectfully I dissent. warehousing repudiated This was case transferred review twenty years ago. mentally ill over Appeals this Court after the Court of en- impossible It is to look at this file with- order, its opinion by tered memorandum questioning prosecuting attorney why out 84.16(b), Simeone, Judge, Rule Senior degree charges would file first murder concurring opinion filed a as follows: this bizarre case. I can conclude that concur, I make one com- but additional prosecutorial the exercise of discretion is ment: bizarre as facts the case itself. strange It seem a sum- to enter help why You ask chief cannot but mary case order affirmance prosecutor large from such a office would involving first three convictions for de- personally this trial and do the conduct gree murder. But the facts and circum- get things degree he these three first stances are so and sad that there bizarre newest, convictions, murder when the tragedies. no It need detail the is youngest inexperienced and most assistant error, prejudicial clear that there is or gotten could have ordi- office three Although otherwise. was nary by plea life No terms either offenses, criminally guilty found more was handed three ever there is no that she is in need of doubt pipe lead convictions. professional counseling psychiatric Yes, help. per- aware that law is well respectfully urge I would am judge in charge son of the correctional institu- established that the trial had discre- probe ruling tion the facts involved and the tion in on motion However, chose personality by jury. of the defendant and utilize 552.050, provisions to force to trial before RSMo § responsibility thereby relieve himself suggest- As much as wish the statutes deciding respectfully then I rights, of by Judge take of ed Simeone could care case bizarre facts of this submit that the 552.050, problem, they cannot. Section very Court a upon judge cast this 1986, provides 90-day for commit- RSMo special responsibility to lean over back- period hospital in ment a mental appellant had the fairest wards to see that person charge institu- of correctional possible. reading jury trial Even a has cause to believe that tion reasonable principal opinion no doubt that leaves hospital. needs the inmate care a mental every during the prosecutor fudged at turn ninety-day commit- expiration At the course period, the inmate ment be detained less involuntarily up I concede that in other and bizarre for addi- treated circumstances, 632.360, perhaps individual year each tional under 632.355 and § provides point ruled as ruled below could have been RSMo 1986. Section 632.360 However, opinion. one-year periods principal in the detention successive appellant and her counsel permissible procedures used in where this to the same mercy of the period. sought place her at the one-year detention the initial 552.030, part: disappear be to take provides and shall alone sufficient RSMo 1. Section to the trier of fact.... that issue presumed persons be free 6. All are about the constitutional I have reservations disease or defect.... The issue from mental upon validity provision, trier fact to decide in case in which the ... one of this of substantial evidence the introduction over- is uncontradicted and evidence of Upon responsibility_ the in- lack of such whelming, ar- issue was but constitutional evidence of lack of troduction substantial gued to us. presumption responsibility, such shall not judge trial below because of fears of the

way things happened trial, both that and we obligation have an

assure her possible. the fairest trial

accumulated error princi- discovered

pal opinion cries out for relief. The cause

should Only be remanded for a new trial. doing so can we assure that this bizarre fairly processed

case can be in accordance

with our criminal and mental health treat-

ment laws.

Clarence M. WILKES and Karin

Wilkes, Plaintiffs-Appellants,

MISSOURI HIGHWAY AND TRANS- COMMISSION,

PORTATION

Defendant-Respondent.

No. 70466.

Supreme Missouri, Court of

En Banc.

Dec. 1988. Rehearing Denied Jan. Ball, II, City, Robert K. Kansas Thea- Barnes, Independence, plain-

dore P. tiffs-appellants. Adams, Counsel,

Robert N. Asst. Earl H. Schrader, Jr., Counsel, Tiemeyer, Dist. Rich Counsel, City, Chief Kansas for defendant- respondent. PREWITT, Special Judge.

JAMES K. sought damages Plaintiffs from defend- personal injuries ant as a plain- result tiff Clarence M. Wilkes on March petition alleged Plaintiffs’ in- that he was jured highway on a Missouri under the “charge” of defendant when a motor ve- operating hicle he was came into contact icy spot upon flooring with an rail, bridge, bridge collided with the bridge. left the

Case Details

Case Name: State v. Goree

Court Name: Supreme Court of Missouri

Date Published: Nov 15, 1988

Citation: 762 S.W.2d 20

Docket Number: 70112

Court Abbreviation: Mo.