State v. McClanahan

Missouri, Respondent, STATE McCLANAHAN, Appellant.

Tina S.

No. 51634. WD Appeals,

Missouri Court District,

Western

En Banc.

Aug. Rehearing

Motion for Transfer to and/or 30, 1997. Sept.

Supreme Court Denied

Application to Transfer Denied 25, 1997.

Nov.

Mary Flanagan-Dean, Asst. Public De- fender, Hannibal, Appellant. for Hayes, Atty., Ran- Scott A. Asst. Pros. County, Moberly, Respondent. dolph for ULRICH, C.J., Before LOWENSTEIN, BERREY, SPINDEN, BRECKENRIDGE, HANNA, ELLIS, STITH, SMART, DENVER LAURA HOWARD, H. EDWIN SMITH and JJ. HANNA, Judge. defendant, McClanahan, ap- Tina S. conviction,

peals by jury, of inter- from her 565.150, custody, § ference with RSMo jail. The days and sentence of 90 defen- sufficiency challenge dant does not appeal ques- focuses on three evidence. The concerning tions asked the state the de- abuse, prior treatment fendant’s arrests, attempt to terminate her and her parental rights. complains that She questions, regard- portrayed person of low Two of the three those questions her as character, resulting guilty prior in a verdict ing moral her arrests and her offer termi- days jail.” She re- and an “excessive 90 parental rights, may nate her be considered her conviction and re- quests a reversal of together. point states in her defendant trial. mand of the ease for a new relied on that “the state also asked other arrests, prior improper questions regarding 19, 1993, was On October Sasha Clarkson attempts parental and her to terminate her Randolph County a Juve- made ward rights which denied her a fair trial. placed physical and nile Court. The court father, legal custody of Sasha with her Rob- order, questions the were asked When Pursuant to this the

ert Clarkson. prior arrests1 her granted super- of about the defendant’s defendant was one hour Moberly parental rights, coun visitation each week in the offer to terminate her vised Family objected the ob office of the Division of Services. sel and the court sustained dispute, Although subject jections. Admittedly, questions, it to the defen- without an is Dunn, swers, may prejudicial. claims she not received visita- dant that State 1979). (Mo. during preceding the six months. She How tion that, contempt ever, two motions with the general precept applies had filed when the against the Division court Mr. Clarkson and improper question is asked but not an an Family regarding her visitation swered, Services prejudicial error occurs. State v. rights. Gilmore, bane S.W.2d ques situations in which the those 16, 1994, On November the defendant counsel, opinion may, tion alone in the Elementary picked up Sasha at the Macon counsel consequence, create an unfavorable requested supervised visitation School. She In this ask for further relief. Randolph County from the Juvenile Office any relief request there was no for other Department Family Ap- and the Services. favor. When a ruling after the court’s her parently she was unsuccessful. She took objection question is sus defendant’s to Moberly. Macon to her home in Sasha from request for further tained and there is no evening, police That went to the defen- court, nothing or motion to the relief directed protective to execute a 24-hour dant’s home preserved appeal. for review on State custody responded by order for Sasha. She (Mo.App.1989).2 Harvey, 766 yelling police at the and refused obscenities Additionally, after trial mo the defendant’s custody Eventually relinquish to Sasha. issues, only sufficiency of tion raised two police accompany them convinced her to to the conviction and the evidence sustain police daughter. with her At to the station ruling question court’s on the state’s about station, voluntarily she still refused to any not raise drug her treatment. She did police sought The assistance return Sasha. regarding the unanswered claim of error Randolph County juvenile officer from the allegations preserve In order to questions. They were unable to and the DFS worker. review, they must be error for help. approximately hours of un- After 1% trial. Rule for new included the motion negotiations, police four officers successful Watts, 29.11(d); defen- physically removed the child from the (Mo.App.1991). custody. dant’s expect abide ar- 2. We that will defendant’s answer that she had been 302.02, instruction, MAI-CR 3d court’s written interrupted her rested on six different occasions "[y]ou must not which instructs the given objection before the counsel's and was solely because it is in- assume as true fact ruling. After the court sustained the ob- court's question suggested by a asked cluded jection, prosecutor pursue line of did not may be question is not witness. A testimony, questioning. defen- Later in her supplies meaning it to considered non-responsive again volunteered in a an- dant Further, was instructed answer.” interfering swer that she had been arrested for question, objection to a "if the Court sustains Family custody related to the Division of you question you disregard will the entire Services. speculate answer of the as to what the should not might witness have been.” they it to court ... told me that the Finally, upon it is incumbent the defendant make identify dropped....” in what trial court charges manner the would be She unanswered copy report erred as relates two if of the lab asked she had DUI, answered, questions. The defendant has failed com- concerning and she “as 30.06(d) ply by setting “what know, with Rule forth nothing has back in the far as come sought rulings actions or of the court are report except for caffeine.” lab nicotine and why they be reviewed and wherein and are if she The state then asked the defendant ” erroneous,.... claimed to be She com- abuse. had ever received treatment plains improper that “the state asked other objected relevancy grounds. The Counsel on regarding prior questions arrests and her objection court overruled the and allowed the attempts parental terminate her answer, pro- which included three treatment ” rights.... grams. scope appeal issue on “Evidence is relevant if it tends to point determined relied on. State v. issue, prove disprove a fact in or if it or Talbert, 321, (Mo.App.1994). 873 S.W.2d 323 corroborates evidence that is relevant and identified, The defendant has not either Bounds, principal bears on a issue.” State point argument por relied on in the or 474, (Mo.App.1993). 857 477 The S.W.2d brief, rulings tion of the what actions or of trial court is with broad discretion vested sought the trial court are to be reviewed or ruling questions relevancy, on of grant what relief the trial court failed to appellate court not should interfere with the Nenninger, should have taken. See State v. ruling in trial court’s the absence of a clear 589, 589, (Mo.App.1994), 872 S.W.2d cert. de showing anof abuse of discretion. State v. nied, 1022, 589, 513 U.S. 115 S.Ct. 130 (Mo. Brown, 493, 718 S.W.2d 493-94 banc (1994). L.Ed.2d 503 The defendant received requested all of the relief she when the court objection, sustained her and she has failed to testify, If a to defendant chooses preserve the issue of the unanswered ques convictions, prior including pleas guilty, trial, tions at the time of after-trial her may exposed be and considered motion, appeal. on credibility. Light, to determine her State v. 59, (Mo.App.1994); 871 S.W.2d 62-63 prosecutor’s More troublesome is the 491.050, § 1994. It from RSMo is unclear question concerning the defendant’s treat prior the record whether the defendant’s drug objec ment for abuse. The defendant’s drug any treatment for abuse had connection Drug general tion was overruled. treatment alleged to her conviction in Iowa. ly go any does not element of the crime given purpose such the de- obligated prove. the state is The prior tails of the admitted convictions are basis for its admission was attack Silcox, unnecessary. State v. 694 S.W.2d credibility. witness’s The defendant main 755, (Mo.App.1985). 757 When the state prior drug tains that her treatment for abuse prior a questions defendant about convic- solely was irrelevant and was introduced nature, tions, permitted it is to elicit the person show that she was a of low moral dates, occurrence, places as well character. resulting Light, as the sentences therefrom. testimony drug The about the defendant’s who, literary “In 871 S.W.2d at 63. terms following treatment came about man- what, why when and where are in order but ner. The state asked the defendant about not.” Even if the state’s and how are Id. prior her convictions. She testified she concerning prior drug her treat- question conviction, one which had occurred alleged ment was the result of this convic- years approximately 13 earlier. The state tion, question beyond scope pleaded then asked the defendant if she had permissible inquiry. guilty in driving 1995 to under the influence stated, of narcotics in The state contends that the defendant as- Iowa. The defendant up through good “that was kind of a screwed deal.” She serted her character her testi- However, first, stated, signed paper, mony “I above. it was then but couldn’t set forth 480 ties, any ques- presence, child’s closed prior about her convic- her

the state that asked Second, guilt. tion her agree that it is an tion. we do good that one has not assertion of character body of establish When the evidence years in 13 or that been convicted of a crime ing guilt overwhelming, the defendant’s charges thought the defendant DUI harmless. the error is rendered State drug of her dropped. The evidence would be (Mo. 1990) Leisure, 875, banc irrelevant, and the trial court treatment was added).4 presumption (emphasis permitting the state to ask about it. erred prejudice from the erroneous admission of whether the question now becomes overcome when the evi be prejudicial as to testimony treatment was so overwhelming as to elimi guilt dence of is so a reversal of the conviction. See warrant any nate reasonable doubt defendant (Mo. Debler, 641, State v. S.W.2d guilty would have been found even without 1993).3 banc erroneously admitted evidence. State v. (Mo.App.1993). Troupe, 863 S.W.2d charged interfer- The defendant was with error, put that which in a It also has been 565.150, § custody, RSMo ence reversal, may might call close case person, requires showing disregarded as harmless when the evidence so, “knowing legal right to do that he has strong. Degraffenreid, guilt legal custody ... takes or entices from (Mo. 1972); Cook, banc State v. person of a court to the entrusted order 1982); 661-62 custody person or institution.” of another Burns, 527, (Mo.App. 795 531 State v. S.W.2d guilt was The evidence of the defendant’s previously A court ruled that as follows. drug Although the evidence of treatment was not a fit custodian of her the defendant presumption prejudice of improper, the unsupervised in year daughter five an old of such evi- from the erroneous admission therefore, and, setting had entrusted the of is overcome the evidence the dence physical legal custody of with her and Sasha Further, guilt. we find no other defendant’s that, al- father. The defendant testified prosecut- drug treatment the reference to only her one though the court had awarded trial, during ing attorney any point the week, per supervised hour visitation she of closing argument. The unchal- including took off of the school bus and drove Sasha the error lenged guilt of renders evidence permis- Moberly in without her to her home harmless. authorities supervision. sion or When the two, return, point the defendant asserts of In the child’s her defiance demanded punishment of 90 continued, pres- jury’s assessment of in the the lawful court order of her days by the evidence police four was affected daughter, requiring ence her of questions con- drug abuse treatment and daughter from her officers to wrestle prior and termination of cerning her arrests custody. continual defiance The defendant’s punishment for parental rights.5 The authori- her a court order and its lawful of lawful beyond legitimate go prosecutor's overzea- conviction choose 3.We do not condone the pursue to them and clearly evidence that is available questioning on irrelevant matters. lous triviality inflammatory questions and irrelevant in perilous con- other Obvious irrelevant and occurs, arrests, quest parental rights, of conviction. When this cerning of termination appellate suspicion ques- review is assured. cast on the result of treatment improprieties as- Such will tioner's motivation. exception trial is bifurcated 4. is when the scrutiny. An appellate In State v. Hernan- sure close dez, punishment death guilt such as in (Mo.App.1991), appellate between 815 S.W.2d 67 Shurn, S.W.2d 447 penalty 866 cases. State trial and remanded for new court reversed 837, denied, 1993), evidence, U.S. 115 cert. 513 improper the admission of because of 118, (1994). S.Ct. 130 L.Ed.2d prosecutor’s fixa- which was exacerbated during closing argument. on the evidence tion 71, Hernandez, stat- S.W.2d at The court In drug abuse treat- 5. Our review is limited ed: is noth- We have held that there ment evidence. questions prior regarding about ing prosecuting to review when officials It is unfortunate rights. parental support or termination strong of a arrests otherwise in with 565.150, may jury’s § have had on the violating RSMo interference ble evidence misdemeanor, punishment. custody, a class A is not assessment of jail. year county one in the exceed Cook, hand, Degraffenreid, On the other 558.011, § RSMo Leisure, Burns,6 Brown, Troupe, repre- line of cases that have evaluated long sent a The issue of an excessive sentence of inadmissible evidence effect first should be addressed to the sound discre pun- jury’s guilt, not on the determination tion of the trial court. In this it was contemplate not ishment. Missouri law does mentioned, pre not. As issues unduly subjective standard review post served the defendant’s trial motion may a con- where an court reverse sufficiency were the because of the effect of inadmissible viction appeal, was not raised on and the court’s jury’s punish- assessment of evidence on the allowing testimony error about the preclude ment. these cases do not drug abuse treatment. The lat defendant’s jury’s court review of a determination ter not of an error was raised the context may punishment. punishment A review of excessive sentence. accomplished though it was even held authority The court derives its the inadmissible evidence did not affect the assess, increase, punishment or reduce from jury’s guilt. determination of The review statute, 557.036, § RSMo and the Mis then be directed to a reduction of the 29.03, Supreme 29.02, souri Court Rules conviction. not reversal 29.04, 29.05, Lewis, and 29.06. instance, In the it is the first (Mo.App.1982). There is no punishment. responsibility to assess right constitutional to have a determine event, statutorily the trial court is Weimer, punishment. State v. punish required to decide the extent of the (Mo.App.1983). The constitutional ment all cases which the has right by jury felony to a trial case does 557.036.1, the sentence. assessed Section sentencing. extend U.S. Const. 1994, upon trial a RSMo directs the court VI; Cline, 822, amend. v. State 808 S.W.2d guilty the extent or verdict “decide dura (Mo. 1991); Griffin, 826 banc v. State 756 disposition tion of sentence or other to be (Mo. 475, 1988), denied, S.W.2d 487 banc cert. imposed all the ... under circumstances and 1113, 3175, 490 U.S. 109 S.Ct. 104 L.Ed.2d judgment accordingly.” The court’s render (1989). 1036 authority in that im is limited the term of authority permit prisonment imposed by We have not found the court cannot ex ting appellate jury by jury. court In other review of ceed the term declared the words, by primary sentence because it was affected inadmis the function of the evidence, except possibly punishment. sible v. Her to set the maximum State v. State nandez, Maxson, 162, 163, (Mo.App.1991). (Mo.App.1982). 815 S.W.2d 67 641 S.W.2d Hernandez, Only the court that the the is found to be an found when defendant 558.016, (1994), guilt § overwhelming but reversed the offender under RSMo by than conviction because of the effect of the term assessed the is less the implication range punishment may the minimum the court inadmissible evidence. The imprisonment. holding of its is that the error so contaminat increase the term of Id. It is jury’s punishment ed the verdict that retrial was the the function of the to assess subject responsibility appropriate result. Other than the Hernan to the of the trial' court case, authority, punishment, opinion “if in the dez we are referred to no and to reduce the none, proper but supports proposition we find the of the trial court the conviction is than, greater un reviewing may punishment that a court reverse a convic the assessed is case, ought circumstances of the tion because of the effect that the inadmissi- der the (Mo. (Mo. 1990); Troupe, Degraffenreid, 863 S.W.2d v. 477 S.W.2d 57 banc banc State v. State 1972); Cook, (Mo. Burns, v. 628 S.W.2d 657 banc (Mo.App.1993); State S.W.2d 633 State v. 795 Brown, 1982); State v. 718 S.W.2d 493 (Mo.App. 527 1986); Leisure, 875 State v. 796 S.W.2d BERREY, BRECKENRIDGE, Caffey, ELLIS be inflicted.” State 365 S.W.2d (Mo.1963) added); STITH, JJ., (emphasis join in S.Ct. and LAURA DENVIR Simply put, dissenting opinion. Rule 29.05. the trial court punishment makes its own assessment of SMART, Judge, concurring. consistent with the facts will enter sentence may pun- the of the not exceed agree analysis principal I with the of the jury. Expectedly, ishment issued opinion as it relates to our review of the majority imposed by vast of sentences separately em- issues raised. write add jury’s trial court are the same as the sen- phasis improper proposition that it is Therefore, prepared tence. we are not reviewing require state to for a court to that, accept opinion simply the dissent’s be- justify a sentence when there was no motion cause the trial court’s sentence was the same sentence, in the trial court directed to the imposed by jury, trial court as that judge or after trial sen- either before did not review the sentence assessed tenced the defendant. jury- that, willing The dissent is to assume that, Additionally, sentences there been a motion related to defendant, opinion of the are excessive automatically rejected trial court would have may be reviewed the trial court when the argument sentence recom- requests in motion to defendant an after-trial by im- mendation have been influenced imposed. reduce the sentence State v. John proper I fail that we are evidence. to see son, (Mo.App.1977); assumption. to make that entitled 29.11(d). eases, appellate Rule In those trial, evidentiary In the rul- midst authority court has to reduce the sentence ings generally quickly. are made Decisions only upon showing an abuse of discretion objections un- frequently are made on terse appearing clearly in the record. State trial, by any authority. substantiated After a (Mo.1971); Agee, 474 S.W.2d opportunity has an to research an counsel Morris, (Mo.App.1983). issue, authority, prepare a thor- obtain appellate court will not interfere with court, ough analysis of the The trial if issue. showing the trial court’s decision absent a Here, persuaded, grant is able to relief. “passion prejudice clearly ap so trial, arguing counsel filed a motion for new pears from the record in allowing that the court erred evidence of confidently say court can the trial court might as it have affected the abuse by declining abused its discretion to reduce principal opinion, conviction. As noted in the Johnson, punishment.” that such evidence there was no assertion 351; Mucie, may nor was have influenced sentence (Mo.1970), denied, cert. 90 S.Ct. U.S. any request for reduction of sentence. there (1970). However, 26 L.Ed.2d 271 possible It that counsel did not believe that any issue was not raised form before the any on evidence had effect the inadmissible court, request trial and no to reduce the possible It is also that the trial sentence. has been made here. Our review sentence actually agreed proposition with the court here evidence is limited to of the inadmissible drug should not have that evidence of abuse jury’s guilt. its effect on the determination of admitted, the motion for been but denied Judgment affirmed. ground trial on that the error had new guilt. At no time no on the verdict of effect LOWENSTEIN, ULRICH, SPINDEN was the court asked to consider whether HOWARD, JJ., majority concur with may influenced evidence have inadmissible opinion. jury’s sentence recommendation. SMART, J., separate concurring files reviewing in which a court It is a rare case opinion. argument not made to the should consider an 29.11(d). argu- J., Such an SMITH, separate trial court. Rule H. files

EDWIN may under Rule 30.20 ment be considered dissenting opinion. “plain may affecting improper when it is a error” substan- evidence have affect- injustice rights miscarriage involuntary tial and the or jury’s finding guilt ed case, justice is In appellant manifest. this manslaughter, as well as the sentence. argue any injustice regard does that contrast, us, in the case before it is clear that Appellant to the sentence is manifest. offers improper evidence was harmless as to why, no prosecutori- discussion as without Further, obviously in- conviction. unlike the error, al she would have received a much Hernandez, flammatory argument Rather, lighter appellant argues sentence. prosecution’s closing argument in this ease simply that the burden is on the state to matter-of-fact, extremely was and not inflam- beyond show a reasonable doubt that the matory. There was no reference to improper sentence was not affected any improper abuse or other matters. The evidence. only punishment (“ninety days reference to jail is not too much to ask of- for this authority There is little an fense”) any supporting was made without court to merely review sentence because admitted, argumentation. improper evidence was where the preserved issue has not been as to the sen- that, proposition, It is an true as abstract Hernandez, tence. State v. 815 S.W.2d 67 ninety days jail unusually seems an harsh (Mo.App.1991) questionable is of value as interfering sentence in the case of a mother authority. In that the court chose to rights. with custodial we are not order a trial involuntary new an man- competent judges appropri- the most of the slaughter prosecution inflammatory after in- particular ate in the sentence case. We are prosecu- admissible evidence was used why not told the court in the domestic matter argue tion to for a maximum I sentence. severely restricted defendant’s visitation reading believe a fair suggests of that case rights. evidently appeal There was no of the the court found the admission of the decision, custody custody and the facts of the evidence, inflammatory and the use of that part ease were not of the record in this was case. both as to convic- willing tion and am not order new trial on the and ordered a new trial. It supposition is not clear that in mere judge gave Hernandez the the trial prejudice went thought sentence. No- to the fairness of the sentence.2 I opinion where in the court Hernan- also do not see that it is manifest that the any dez is there conclusion the court that jurors, already acquainted two of whom were guilt the evidence of overwhelming,1 or with the defendant before trial all of guilt, defendant admitted trial, testimony whom observed her al- conclusion that the error was harmless as to judgment their highjacked by lowed to be that, conviction. It is true in looking at the prosecutorial improbity. prejudice, issue of the court focused on the always possible It is that some inadmissi- prosecutor’s argument for a maximum sen- ble have influenced a likely, however, tence. It is that the court recommendation sentence. But unless the believed that argument same also hin- opportunity trial court impartial to address the dered and reasonable consideration issue, manifest, injustice Thus, of the the is it is im- evidence as to conviction. the reviewing proper may presume prejudice by shifting court’s order of a trial to new the upon well have been based the court’s belief disprove prejudice. burden to the state to opinion many things of the court recites the evidence in 2. There are we do not know about verdict, light the most favorable to the so we do suggests the defendant. The record that Ms. presented not know what evidence was in behalf may McClanahan suffer from emotional distur- opinion of the defendant. Id. at 69. The of bance and has had various conflicts with authori- Shrum, J., concurring part dissenting in and in McClanahan, ty. E.g., v. State 930 S.W.2d 489 part, Judge indicates that Shrum viewed the evi- (Mo.App.1996). jail Whether or not time is an guilt "strong.” dence of as Id. at 74. His view appropriate sanction for a Ms. McClanahan is was, fact, guilt part of the evidence of in of the question, difficult one which would not necessar- reason for his dissent from the reversal of the ily by ordering be resolved a new trial. involuntary manslaughter. conviction of Id. requirement for SMITH, imposing for such a Judge, dissenting. reason H. EDWIN objection question in here. the respectfully I dissent. is to a trial A criminal defendant entitled majority I the that it was error agree with impartial by jury peers, a of his who are permit the trial court to the State for prejudice. free from bias and State Sto appellant’s prior inquire about the rey, This 901 S.W.2d 886 disagree I that the treatment. logically ap jury impartiality entitlement prejudicial requiring was not reversal. error verdict, jury deliberating on its plies to a appellate court determines that “When its and declaration which includes assessment matter, in criminal the state error resulted a Although technically a punishment. this is of presumption prejudice must overcome the state,” “judge-sentencing unless otherwise by proving beyond a reasonable doubt that law, jury, part of its provided by the Greene, the error is harmless.” State verdict, required to assess and declare is majori- (Mo.App.1991). is, 557.036; § This punishment. Rule 29.02. ty it asserts that is correct when effect, in akin to a recommendation with a that “the recognized of this state have courts sentencing a cap in that the trial court presumption prejudice from the erroneous go below the sentence defendant is free to overcome when admission of evidence range of by jury the within the declared guilt overwhelming is so as to the evidence of it, cannot exceed unless the punishment, but any doubt that the de- eliminate reasonable minimum jury failed to at least declare the guilty found even fendant would have been 557.036; § Rules required law. sentence evidence,” erroneously the admitted without practical As a matter and for 29.04—29.06. 633, 636 citing Troupe, reasons, day very rare that the obvious that (Mo.App.1993). The rationale for this is other than imposes sentence trial court the inadmissible the even without jury. by the In other that recommended guilty.

jury have found the defendant would words, punishment assessed and declared the This, however, ignores that cases where cases, is, very few jury all but and declare jury required to assess imposed the trial to the sentence identical punishment, that verdict has two Here, we need not wonder as court. 1) components: guilt; determination punishment jury’s verdict as to whether 2) and, an assessment and declaration imposed by the actual sentence affected the majority would assess punishment. The court—they are trial identical. inadmissible evi- prejudicial effect of the jury’s guilt dence on the determination jury’s assess- Although conceding that the jury’s on the ignore its effect punishment does declaration of ment and punishment. and declaration of assessment impact what sentence is a substantial on have determining prejudi- that in would hold majority imposed, holds subsequently evidence, the of the inadmissible cial effect judge jury in roles of the given also assess its effect appellate court should state, sentencing in this there is need imposed. on the sentence the effect of inadmissible appellate review of judge trial sentencing on holding of the Initially reject I would sentencing already required to review the which would is majority concurring opinion imposing before of the objection to the recommendation appellant’s hold Thus, majority contends preserve the sentence. inadmissible evidence did if, fact, of the sentence the recommended prejudicial effect of the evidence issue of the one under the appropriate not an of the punishment component on case, the trial facts and circumstances any requirement I am unaware verdict. imposed it. This never have objecting party judge would requires the the law that majority, assurance, says so is our prejudicial grounds for an oth- then articulate the unduly imposed not sentence example, we do that the objection. For erwise valid evidence, and by inadmissible objection influenced the hearsay to articulate require not by voila, prejudiced was not the defendant preserve in to specific prejudice order the rea- This of this evidence. no valid the introduction I can think of appeal. issue for the 485 soning in In drinking overlooks the obvious that the trial dant’s views on to excess. re- conviction, judge reviewing accepts in the sentence versing the the court noted that fact that the in ques- effect, inadmissible evidence prosecutor “argued, in that the the tion was admissible. How then can he or she jury assess a maximum sentence in should in sentencing the defendant act as a filter or this of the beliefs of this defen- case because safety determining net in inad- whether the regarding dant the use of intoxicants—and prejudicially missible evidence affected the punishment the assessed the that the punishment by jury? recommended the prosecuting attorney asked them to assess.” Thus, I not judge do believe that the trial added). held, (emphasis at 71 court Id. The adequate safety serves as an filter or net alia, inter order to find that the “[i]n against a being unduly defendant’s sentence drinking slogans prejudi- use of the was not wrongfully affected evi- inadmissible cial, ‘beyond this court would have to find And, agree major- dence. because I with the complained reasonable doubt that the error ity punishment component the of the of did not contribute to the verdict obtained.’ substantially verdict does affect the Texas, 249, 258-59, v. 486 U.S. Satterwhite case, imposed sentence in a criminal 1792, 1798, (1988), 108 S.Ct. 100 L.Ed.2d 284 analysis prejudicial effect of inadmissi- 18, citing Chapman California, v. 386 U.S. ble evidence on a logically verdict must (1967).” 24, 824, 828, 17 87 S.Ct. L.Ed.2d 705 include its on punishment effect the assessed added). (emphasis reading majori In Id. the jury. and declared Hernandez, ty dissenting opinions in Although done in pun- the context of the there, question, court without that re held phase penalty ishment of a death gardless of strong the existence of Supreme Missouri recognized Court has guilt, other than the inadmissible concept assessing prejudicial effect of the erroneous admission of evidence had a punishment. inadmissible evidence on State prejudicial punishment effect on the declared Clemmons, (Mo. 901, 753 S.W.2d 911 banc jury requiring reversal. 1988), denied, 948, cert. 488 U.S. 109 S.Ct. majority, refusing to assess the 380, (1988). 102 L.Ed.2d 369 The court has prejudicial effect the inadmissible evidence recognized also necessity jury being of a appellant’s on contends to do so fully punishment. informed in fixing require engage speculation. would us to Cline, 808 S.W.2d disagree. Questioning whether character as- Bevins, quoting Cline State v. from sassination, here, prejudi- as occurred has a (banc 1931), Mo. cial effect on the assessment and declaration Supreme Missouri Court held that: punishment tantamount questioning is to duty [fixing punishment] being thus good adversely whether one’s health is affect- imposed upon jury, the defendant cer- by being deadly ed infected with a virus. No tainly corresponding right has a to have speculation necessary to divine the answer. duty properly intelligently per-

formed, and to the end that it be Further, so majority, in contending that it performed necessary it is that the be necessary would engage impermissi- be properly applicable instructed as to the speculation prejudicial ble assess the ef- law. fect of the inadmissible evidence on the sen- tence, incorrectly hypothesizes Cline, added). that it would (emphasis And, necessary, pre- order overcome the although grudgingly, majority does sumption prejudice, for the State to show admit that even in penalty non-death cases what the exact sentence would have been precedent there supporting this state absent the erroneously review of the inadmissible evidence. With this effect of given, majority as a imposed. argues admitted evidence on then the sentence Hernandez, prosecution impossible In State would have an burden State, (Mo.App.1991), prosecution demonstrating imposed in a that the sentence involuntary manslaughter, in- was allowed to would have been different had the inad- consisting troduce inadmissible evidence missible evidence been excluded without re- bumper slogans sticker regarding sorting impermissible speculation. the defen- This is

486 capable determining whether courts are argument in that in order to make its

a straw the defendant majority recognizes would have found point, burden without resort- evidence. To guilty cannot met absent the inadmissible which knows be However, impermissible speculation. ing say to can make one determination without we speculation, the correct burden on the but impermissible I would hold that engaging presumption other, to overcome the State in order is inconsistent cannot make the prejudice require event, would be to it to show prejudice for In the review best. likelihood that the that there is no seem to be suggested by the dissent would reasonable imposed been substan- up would have throwing sentence our preferable simply to far been tially less had the inadmissible evidence saying we realize the hands in defeat to be This is a similar standard excluded. is of question such inadmissible evidence appellate our used in other instances where likeli- is a reasonable character that there prej- upon to courts are called determine prejudicial effect on the it did have a hood v. effect of trial error. See State udicial but because of defendant’s (Mo. 1996) Barton, 781, 787 banc speculation which we imaginary shield of (holding that to establish error right employ, helpless are to choose to we closing argument, the test prosecutor’s other than wrong inflicted someone probability there is a reasonable is whether nonetheless, who, required is the defendant have been different absent the verdict would injustice it wreaks. to bear the Parker, error); 856 see also State speculation addition, its respect In to (Mo. 1993), cert. de 333 banc to concern, the State majority allows nied, 506 U.S. S.Ct. error, inten- accountability its escape any (1992) (holding postconvic in a L.Ed.2d destroying otherwise, completely tional or “prejudicially is relief case that affected” tion State to demonstrate the burden of the probability that “a reasonable defined as the sen- prejudicial as to its error was the outcome of the counsel’s error affected majority saying, is imposed. What the tence (hold Clemmons, trial”); 753 S.W.2d at effect, prosecu- although it is the is that penalty phase penalty of death ing that in the preju- no its to show tion’s error and burden no prejudice unless “there is case there is carry it, the State cannot dice from because probability that would reasonable impermissible resorting to its burden without sentencing....”); have reached a different nonpersuasion speculation, the burden Weaver, To re- be borne the defendant. should — U.S.-, 1995), denied, 117 S.Ct. cert. and from prosecution of its burden lieve the (1996) (holding that a 136 L.Ed.2d the burden any accountability simply because “‘if there is process due violation occurs bear, illogical and be would difficult that, probability had the evidence reasonable funda- process and principles of due defies defense, the result of disclosed to the been ” mental fairness. different,’ have been proceeding would Bagley, 473 U.S. quoting United States accountability and insure In order to 3375, 3380, 667, 676, 105 87 L.Ed.2d 481 S.Ct. risking the introduction from deter the State (1985)). of inadmissible sentencing, there have bear on the issue of majority not believe that Surely, the does conse- are no consequences. When there incapa- appellate courts of this state are State, actions, in eases its quences for certainty determining with reasonable ble of evi- already strong admissible where there is has met its burden whether the State voluntarily ethi- unless guilt, dence as to the inadmissible evi- showing that absent risk constrained, left undeterred cally likelihood the is no reasonable dence there less, of inadmissible substantially the introduction been sentence would have this sentence.1 to obtain a stiffer that the order especially agrees when it Rule, Exclusionary the creation prosecu- majority officers and recognize vast 1. I majority who intentionally to introduce for the vast never seek a deterrent is not tors would tougher simply principles to obtain of fair- comply inadmissible evidence with constitutional will police just as in the case of sentences. argument prosecutor respect, argued the State in oral examination between and appellant: that there is a deterrent the form of the disciplinary proceedings prose- for threat of Q: Okay. ... before? Ever been arrested intentionally repeatedly cutors who act Object. MR. MARSHALL: violating right of defendants to a fun- THE WITNESS: I’ve been— damentally fair I suggest trial. this threat Okay. THE COURT: She— way addressing offers little in the my THE complained WITNESS: —arrested in

concern raised. Where the error intentional, home six times this. being prose- of falls short of operate any perceived cutor does not under sustained) (objection was disciplinary yet proceedings, threat of by defendant is still harmed Fur- the error. Q. you any type Had consumed of narcot- ther, disciplinary if pro- even the threat of ics at that time? real, ceedings is what relief afforded to a after-the-fact, wronged defendant an an- Objection. Improp- MR. MARSHALL: cillary proceeding nothing which does to ad- question. er change dress or the outcome of the defen- THE COURT: Sustained. sentencing? dant’s case as it relates to I am mindful of the fact that there are Q. drug You ever receive treatment for argue those who would the dissent’s abuse? position ap- would cause an added flood of peals Objection. MR. MARSHALL: seeking review criminal sentences. simply argument ig- This is- not true. This plead THE I WITNESS: the Fifth. nores the fact that the review envisioned MR. MARSHALL: Relevance. the dissent would occur after trial error objec- THE I’ll COURT: overrule that appellate has been found I court. am tion. not aware of an appellate abundance of cases Q. you Have ever received treatment for where trial error has been found as to inad- drug abuse? missible evidence arguably which would have A Yes. sentencing. effect on impor- Even more tantly, always I have assumed that the touch- Q. was that at? Where determining stone in grant appel- whether to Laughlin A I went for two weeks late review in wrong order to correct a in a right they my after took children. I’ve criminal proceeding is not amount go been in—I was court ordered to might work inflict on the released; Mid-Mo I and was court state, courts of this but is to insure the Fulton, go ordered to and I was re- right defendant’s constitutional to a funda- hours, leased. Twelve March ’95. mentally fair trial. Q. you anybody Have ever contacted re- Having determined that the correct stan- garding parental rights termination of determining prejudice dard of review for your children? the admission of inadmissible in- Object. MR. MARSHALL: This is be- cludes a determination of whether there is a yond scope charge. of this reasonable likelihood that the defendant’s sustained) (objection substantially sentence would have been less absent the inadmissible I objections now I understand that when are sustained, turn to the case at bar to questions determine the made to we do not prejudicial appellant’s generally effect on if asking consider the mere of those any, of appellant’s prior questions determining prejudice the evidence of in a ease. respect, treatment. this the follow- can do believe we consider ing pertinent exchanges questions occurred on cross- effect of asked and coercion, very minority

ness without but for the small who will not. the need to do so to obtain conviction objection in a vacuum. when over a valid answered sway unnecessary, attempting to majori- was impact true of what To assess the quite regard sentencing and was erroneously admitted evidence ty found to be punish- doing nothing so. There is as it relates to successful on the verdict ment, support finding to consider appropriate I it is the record which would believe pursuing at likelihood that the prosecutor was that there is no reasonable the theme was intro- have been sub- appellant’s the time the inadmissible evidence sentence would that, evidence stantially To do I would look less had the inadmissible duced. prior drug elicited treatment been excluded. question in which the of her context being asked. objectionable evidence was previously, the State bears As stated four Although objections to three of the question showing that the error in burden supra properly sus- questions set out were words, harmless, prejudi- or in other was tained, ques- appears this was a series Greene, at 347. I would cial. tions, had to which would have the answers in its burden. The find that it has failed arguable to a determination relevance preju- presumption not rebut the State did nothing more than inflame the guilt, did by the the trial court’s error induced dice of assailing appellant. character of the in that it failed to demonstrate prosecutor asked the In this the sen- no reasonable likelihood there was declaring assessing to return a verdict and substan- appellant have been tence of would jail. days county punishment at 90 evidence. the inadmissible tially less absent The jury followed this recommendation. The falls on nonpersuasion Because the burden of imposed and court then followed suit trial State, admission of I hold that the would is to 90-day burden sentence. State’s drug treat- appellant’s prior the evidence of likelihood show that there is no reasonable error, reversible er- but ment was not substan- would have been that this sentence ror. had tially if inadmissible evidence less majority, already quoted by the Although the evidence been excluded. would review repeating. it bears in this manner. prosecuting officials when It is unfortunate felony not a case of Given the fact this was support strong evidence with otherwise case kidnaping flight, but misdemeanor beyond the go of a conviction choose who took mat- of a mother denied visitation available to legitimate to see her into her own hands order ters inflammatory and pursue other them and judge child, unlikely that a highly it is of conviction. triviality quest irrelevant any jail impose have been inclined would occurs, this the result When time, only way days. The this let alone 90 review is assured. reasonably was to inflame would occur appellant as an undesir- jury by tainting the And, Hernandez, as at 71. able, worthy of its wrath. The who concurring in his Judge Parrish observed here, by very na- its inadmissible evidence opinion Greene: ture, exactly prosecutor, that. would do pros- duty to Prosecuting officials have the majority recognizes was armed with who they have vigor, but ecute cases sufficient obviously admissible evidence of rules of the bounds duty to do so within over, nonetheless appellant twice convict procedural bound- within the evidence and by attempting on risk reversal chose to of criminal prescribed for the conduct aries clearly inad- four occasions to introduce least trials. finally being successful missible goes Greene, Finally, it at 348. this and the attempts. From to one of these for law and passion that a saying specific recom- without prosecutor made fact the admirable, never be order, should which is sentencing, I am jury for mendation to the tough sen- by pursuing convictions fed prosecutor to conclude that forced accused right of sacrificing the tences while appropriate sen- as to an his case evaluated To do fundamentally fair trial. to a waters citizens tence, foray into hazardous his so, goal, to lose that be our which should

regardless justice. of our labels—true SHIFLETT, Respondent,

William J.

Virginia SHIFLETT, Appellant. R.

No. WD 53572. Appeals,

Missouri Court of

Western District.

Sept.

Motion for Rehearing Transfer to and/or

Supreme 28, 1997. Court Denied Oct.

Application to Transfer Denied 25, 1997.

Nov.

Case Details

Case Name: State v. McClanahan

Court Name: Missouri Court of Appeals

Date Published: Aug 26, 1997

Citation: 954 S.W.2d 476

Docket Number: WD 51634

Court Abbreviation: Mo. Ct. App.