*1 point find the to be merit We without for First, Henry if Judge
three reasons: had
knowledge likely that he a wit
ness, duty disqualify he had a himself. 3(c)(1)(d); v. Black
Judicial Canon cf. mon, (Mo.App.1984);
Second, catego falls the same
ry as defendant’s Point Our Su Five.
preme Court had ruled been Bannister,
properly selected. noted, at previ 144. As an issue
ously appeal considered on direct cannot be
relitigated post-conviction proceeding, in a though
even the defendant has different State,
theory suggest. Windle v. Third, sugges at no there is 46[3].
tion, proof, much less reasonable
probability that a different result would
have been reached trial counsel had ob
jected to Judge hearing Killebrew’s the mo quash panel.
tion to In the absence of
any showing prejudice by trial counsel’s
performance, ineffective assistance has
counsel not been established.
We find no error in respect assigned argued Accordingly, this court.
judgment of the trial court is affirmed.
PREWITT, P.J., and FLANIGAN and
MAUS, JJ., concur. Missouri,
STATE of
Plaintiff-Respondent, PENDERGRASS,
Donnie
Defendant-Appellant.
No. 14662.
Missouri of Appeals, Court District,
Southern
Division Two.
March Rehearing
Motion and/or Transfer to 31, 1987.
Supreme Court Denied March
ny by indicating of those witnesses to the the jury that witnesses were in custody during the trial danger- have been individuals escape requiring ous or risks custody.” trial, the conduct of the safe ty persons, prevention of all and the of escape are matters within the discretion of judge ruling the trial whose will not be showing overturned absent a of abuse of Zeitvogel, that discretion. (Mo.App.1983). S.W.2d de showing the fendant bears of burden how prejudiced by he was court’s the actions in regard. Id. reason”, “good
Some based on exceptional misconduct circumstances expressed by exist and must should be the before trial court a defendant’s witnesses required to appear jury are before Jones, chains or shackles. State (Mo.App.1977). considering standards are the same when propriety of or his the an accused witness appearing in Id. es court restrained. vested with judge
The trial unlimited, siderable, discretion in but not determining physical of the re Borman, 529 straints. See also (Mo.App.1975). Relevant determining pro the consider in factors to pres the include priety of such restraints prior disruptive or absence conduct ence trial, presence ab during the the to or appearance for plaintiff-respondent. No misconduct, the of threats such sence Columbia, Hogan, Susan L. defend- of an atmosphere, likelihood at trial the ant-appellant. physical escape, age and at tempt to accused, the nature tributes PREWITT, Presiding Judge. trial, mood the size and offense adequacy and the alternative Following jury was con- audience trial defendant degree Id. also State remedies. See victed assault the third Methfes sel, eight confinement in sentenced to months’ County appeals, He the Newton Jail. testified, defend- the witnesses Before points presenting two for our considera- court that informed the de- ant’s counsel tion. two who were held fendant had witnesses custody by Department of Correc- point Defendant contends in his first present outside they in al- He said were tions. the trial court abused its discretion leg irons with lowing of his to be shackled the courtroom “restrained two witnesses they asked clothing handcuffs.” He by leg prison chains and to wear A depu- brought the restraints. “impermissi- without testifying while because this the De- court that stated to the prejudiced jury against ty the testimo- sheriff bly partment making of Corrections recommended that do not think that it available was “leg the handcuffs be removed but that responsibility of the trial court. This kept chains” be on them while were point is denied. expressed the courtroom. The trial court Defendant’s second contends that possibility escape concern about the of an submitting the trial court erred to the and stated that would allow the hand- following an instruction MAI-CR2d *3 cuffs to be removed but would “leave the 2.20 ap- “because that instruction violated leg irons on.” pellant’s rights process to due in that the objected Defendant’s counsel also to the proof beyond instruction defines a reason- appearing “prison garb” witnesses and proof jurors able doubt as that leaves ‘firm- they provided asked “that be with civilian convinced,’ ly thereby diminishing the clothes to wear.” trial court denied meaning proof beyond a reasonable request, stating probably that it would doubt.” That instruction is set out below.1 they “presently “come out” where were adopted following MAI-CR2d 2.20 was staying” and don’t “we have the facilities” 546.070(4), the enactment of RSMo Cum. § to outfit clothing. them civilian Supp.1984, required which that “reasonable Little of the relevant considerations doubt” be defined for a in criminal per is the record. The witnesses were trials.2 sons who had been with defendant when Although asking that this court reverse allegedly appar the assault occurred and the conviction because of that instruction ently partic had been convicted for their acknowledges defendant decisions indicat ipation in Although ages the incident. ing appeals that the may “pow court record, of the witnesses are not in MAI erless” to declare an instruction erro assault, view of the evidence of the if thought neous even the court it was. appear reasonably young to be and Hawkins, See State v. 67, 703 S.W.2d 70- physically healthy men. One been had Toney, State v. 71 (Mo.App.1985); 680 victed of drug”, “sales of imitation assault 268, v. (Mo.App.1984); State 278 stealing and a car. The other had been Davis, 652, (Mo.App.1984); 675 S.W.2d 658 felony convicted of stealing and second-de Bruce, 821, (Mo. State 671 S.W.2d 822 gree assault. One was defendant’s cousin. Stevenson, State App.1984); 660 makeup of the courtroom and how Burton, 236, (Mo.App.1983); 237 many persons would reasonably be needed 58, 721 S.W.2d 63-64 But prevent escape an from its exits Singer, 818, see 823 leg irons were not used is not in the record. (Dixon, J., (Mo.App.1986) dissenting). Giving judge the trial his dis- considerable matters, There is an indication in
cretion in such
MAI-CR2d that
we find no abuse
keeping
of that discretion in
review the
leg
chains
showing
the witnesses.
Supplemen-
There is no
that MAI-CR2d instructions. The
clothing
readily
other
p.
available and we
tal Notes on Use to MAI-CR2d 17.00
beyond
proof
Proof
a reasonable doubt is
you firmly
leaves
convinced of the defendant's
INSTRUCTION NO. 4
guilt.
require proof
The law does not
that over-
evidence,
charge
any
offense is not
and
If,
every possible
your
comes
doubt.
after
it
no
creates
inference that
offense was
evidence, you
firmly
of all the
are
sideration
guilty
committed or that the defendant is
of an
guilty
is
convinced that
the defendant
offense.
charged, you
guilty.
you
If
crime
will find him
presumed
The defendant
to be innocent
convinced, you
give him the
are not so
must
until, during your
upon
unless and
deliberations
guilty.
benefit of the doubt and find him not
verdict,
your
you
pre-
guilty.
him
This
find
2.20
MAI-CR
sumption
places upon
of innocence
the state the
proving beyond
burden of
doubt
a reasonable
Supreme Court has noted
2. The United States
guilty.
that the defendant is
attempts
explain “reasonable doubt" do
A reasonable doubt is a doubt based
making
usually
to a
result in
clearer
reason and common
sense after careful
States,
121,
jury. Holland v. United
348 U.S.
impartial consideration of all the evidence in
127, 137,
S.Ct.
the
to declare the instruction errone-
ous. The
of
definition
reasonable doubt
FLANIGAN, JJ.,
HOGAN and
concur.
Report
contained in the
of the Federal Judi-
MAUS, J.,
concurring
and files
concurs
Study
cial Center
Committee
Criminal
opinion.
Jury Instructions,
Jury
Pattern Criminal
(Federal
Instruction No. 21
Judicial Center
MAUS, Judge, concurring.
1982)
proof beyond
defines
a reasonable
However,
my opinion
I concur.
it is
“proof
you
doubt as
firmly
that leaves
Supplemental
the
Notes on Use referred to
guilt.”
vinced of the defendant’s
in the majority opinion establish the obli-
Although
practice
defining
the
gation
of this
to review the
court
reasonable
“widely
doubt has been
question.
of the
instruction
Rule 28
demned”, if
correctly conveys
the definition
require
applicable
does
the use
MAI-CR
doubt,
concept
the
of reasonable
it will not
instructions in
with that rule
accordance
“prejudicial enough”
be considered
to re
However,
appropriate
*5
commonly
used
“firm”
term
bears
tion of the term.
following
definition.
The decisions and statutes contain a host
securely
solidly
place
la:
or
fixed in
b:
of variations of further definitions of rea-
vigorous
not weak or uncertain:
c: hav-
A widely
early
sonable doubt.
used and
ing
compact
a
solid
structure that
definition
substantially
as follows.
2a(l):
pressure
resists stress or
not sub-
possible
Reasonable doubt is not a mere
ject
change or
to
revision: set definite
doubt;
everything relating
because
to hu-
(2):
[they gave
price]
subject
us a
affairs,
man
depending
and
on moral evi-
price
steady
easily
weakness:
b: not
open
dence is
possible
imagi-
to some
moved or
well-
disturbed: steadfast c:
nary
case,
It
doubt.
is that state of the
indicating
founded 3:
firmness or resolu-
which, after the
comparison
entire
and con-
tion.
evidence,
sideration of all the
leaves the
Collegiate Dictionary
Webster’s New
jurors
minds
in that condition that
(1977).
“firmly
The standard of
say they
cannot
abiding
feel an
convic-
proof
vinced” demands no less
than that of
tion,
certainty,
to a moral
of the truth of
abiding
person
A
“an
conviction.”
who is
Scott,
charge.
LaFave &
Criminal
firmly convinced of a fact does not hesitate
Law,
see,
v.
p. 52
State
Also
upon
to act
that belief. The definition
Drake,
(Mo.1957);
v.
burden of the state to a guilt
reasonable doubt the of the defend-
ant. When the instruction considered as whole,
a I believe the adequate- instruction
ly requires “subjective state of certitude”
and is not erroneous. YOUNG, Minor, By Through
Dawn A and Friend, YOUNG, Terry
Her Next and
Terry Young Mary Young, Beth Wife, Plaintiffs-Respondents,
His DAVIS, Defendant-Appellant,
Lee Brewer,
Bobby Party Defendant-Third
Plaintiff-Appellant, *6 Watson, III,
William Frank Third
Party Defendant.
No. 14322. Appeals,
Missouri Court of District, Southern White, Rolla, Joseph Ronald D. Ri-W. Division Two. Price, gler, Joplin, and J. Max Price & Salem, Beger, defendants-appellants. for March Henry Dunlap, Don M. H. David Plains, plaintiffs-respondents. West MAUS, Judge. appeal presents unique
This
situation.
appellants’
principal
is that “[t]he
Appeals
jurisdiction
Court of
does not have
appeal
to hear this matter on
since there is
judgment
no final
of the trial court which
disposes
parties
of all of the
and all of the
Nonetheless, they urge
issues.”
appeal. They
merely
not to
dismiss the
urge
judgment
the court to reverse the
and remand the case for a
the trial court
respondents contend the
new trial. The
judgment is final and should be affirmed.
Notes
Use.
quire
Moss,
reversal. United States v.
756 nothing
gives
an
that rule
instruction
329,
(4th Cir.1985).
F.2d
333
greater
against
insulation
re-
finality, or
court,
by
The
view
than the order
use of
this
of the
“firmly
defining
convinced”
Supreme
approving that
prejudicial
reasonable
held
Court
instruction.
doubt was
171,
incorporation
App.2d
by
by
in State v.
Ohio
That order
reference
Seneff, 70
435
680,
(1980).
provides
adoption
N.E.2d
Supreme
the
Court’s
court
firmly
judicially
there determined that
convinced “is
“without
de-
instruction was
easily
synonym
ciding
foreclosing any
a concise and
understood
...
instructional
concept ‘proof beyond
a
issue
though
reasonable
... even
the forms and notes
(1987).
3. Similar
were made
"reservations”
in "How to
XXXIX
Book",
pp.
Use this
MAI-CR3d
XXXVIII-
Blackmar,
approved by
Jury
on use
the court are followed
Devitt &
Federal
Practice
Instructions,
(3rd
1977).
I think
and used.” For that reason
11.14
ed.
§
court must determine the instructional is-
argued
From this
it is
the in-
definition
by
sue raised
also dis-
defendant. See
question
struction in
is erroneous because
Dixon, J.,
senting opinion
reasonable doubt must be defined in terms
Singer,