516 S.W.2d 40 | Mo. Ct. App. | 1974
Defendant-appellant Bernard Dean Robinson was charged, tried and found guilty of manslaughter
Appellant-Robinson (sometimes referred to as Smokey) was, on January 18, 1973, indicted by the Grand Jurors of the City of St. Louis with (1) murder in the first degree in that he killed one Overtis Bailey and (2) assault with malice
Although the record is long and sometimes confusing, it is not necessary to recite all of the complex detailed facts since the appellant does not question the sufficiency of the evidence and raises certain legal questions on this appeal.
Basically, a jury could find the following. On New Year’s Eve, December 31, 1972, a combination birthday party — New Year’s Eve Party was held at the apartment of Mrs. Rena Eason in the City of St. Louis. Numerous guests were invited including the defendant, Robinson, Overtis (sometimes referred to as Mike or Michael), and his brother Samuel (Sam). Other persons were present at one time or another during the evening including Judy Cline Munroe and Darrell Cline, Mrs. Eason’s daughter and son. Some or all of the guests were invited by a person other than Mrs. Eason. Food and drink were prepared, and various persons contributed a small cost for the party. Sometime prior to midnight, at about 10:00 p. m., Robinson was having a general conversation with Judy Cline concerning some of the personal effects he owned — “a Cadillac and all kind of clothes and stuff.” Samuel Bailey interrupted the conversation and remarked, “You don’t own any of that,” or, “You are lying.” Robinson replied, “I wasn’t talking to you,” and Samuel said, “I know you’re not, but I’m talking to you.” Later, after midnight, at about 1:30 a. m., Sam was asked to apologize and went to the kitchen where the defendant was. Soon thereafter Sam’s brother Overtis also entered the kitchen. Mrs. Eason entered the kitchen and indicated she did not want any “fighting in my kitchen.” According to Samuel, when they were in the kitchen, Robinson shoved Ov-ertis and pulled a gun. Sam told Robinson that if “my brother died we was both going to die, and that’s when the shooting started.” According to the defendant’s testimony, the brothers came into the kitchen, and Overtis inquired why Robinson wanted Overtis’ brother to apologize. Robinson replied “for interrupting my conversation.” Robinson testified that they started maneuvering to block the exits and that Overtis was “hitting his fist in the palm of his hand” which was demonstrated to the jury at the request of defense counsel. Robinson inquired whether they were “going to jump me.” Sam came toward Robinson.
Robinson pulled a pistol from his pocket, a shot was fired and Samuel was hit in the
During the cross-examination of the defendant-Robinson, who took the stand in his own behalf, and while the assistant circuit attorney was questioning him concerning the relative positions of the bodies of Overtis and Robinson during the struggle and where Overtis’ arms were and Robinson’s hands, the state’s attorney stated:
“Q. The truth of the matter is, as he [Overtis] went falling back to the floor after the first time, he was laying with his face down; you fired.”
This was objected to, the objection was sustained, the jury instructed to disregard it, but a motion for mistrial was denied.
Also during the cross-examination of the defendant, in an attempt to determine the relative positions of Overtis and Robinson during the struggle, the attorney for the State requested Robinson to “Show me, then, how you were.” The Court asked the defendant, “Can you [Robinson] demonstrate.” Robinson replied that he could. The court then stated: “All right. If — he says he can demonstrate, I’ll permit him to demonstrate.” The attorney for the state then requested that Robinson show the jury how he was on the floor. Defense counsel objected to the in-court demonstration for the reason, “There’s no foundation.” No motion for mistrial was made. The court replied, “There’s been in-court demonstration on both sides. I don’t know why we should cease right now.”
At the conclusion of the case, the jury was instructed on murder first degree, murder second degree, manslaughter and self-defense as to the death of Overtis, and assault with malice as to Samuel. One of the instructions of which defendant complains relating to self-defense was Instruction No. 5.
After the motion for new trial was overruled and allocution granted, the defendant was sentenced to the department of corrections for a period of ten years.
On this appeal, defendant raises three points: (1) the court committed “plain error” in giving the self-defense instruction because it failed to allocate the burden of proof properly, (2) the court erred in overruling the motions for mistrial relating to the references made by the assistant circuit attorney during re-direct examination of Mrs. Eason and the defendant because they were prejudicial and constituted testimony by the State’s attorney, and (3) the court erred in overruling defendant’s motion for a mistrial
The principal point raised by the appellant is that the instruction on self-defense, Instruction No. 5, improperly shifted the burden of proof from the State
Even though the defendant did not preserve this point for review, and we would be justified in not reviewing this point, we will review the record as “particularly appropriate.” There is, however, no prejudicial error in Instruction No. 5. This instruction, except for the names of the parties and the particular offense, is identical to the self-defense instruction given in State v. Tindall, supra. The Kansas City District held, “We cannot agree that this instruction in terms shifts the burden of proof on the issue of self-defense from the state ... to the defendant.” 496 S.W.2d at 270. The court distinguished other decisions including State v. Minnis, supra. The trial court here gave Instruction No. 1, a presumption of innocence and burden of proof, similar to the instruction in State v. Tindall, supra. Instructions are to be considered together. State v. Vainikos, 366 S.W.2d 423, 425 (Mo. banc 1963). Because the jury is deemed to read and understand the instructions as a single charge, an instruction which requires a finding of guilt beyond a
Appellant’s other points do not rise to the level of prejudicial error. The appellant complains that the court should have granted his motions for mistrial. The declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances or where the incident is so grievous that the prejudicial effect can be removed in no other way. Whether remarks of counsel require a mistrial and the discharge of the jury rest largely in the discretion of the trial court who observed the incident and who is in a better position than an appellate court to evaluate the situation and the possibility of its removal by action short of mistrial. State v. Heather, 498 S.W.2d 300, 303 (Mo.App.1973). The trial court took prompt action — the objections were sustained, the remarks were stricken and the jury instructed to disregard them. We cannot conclude the trial court abused its discretion in denying a mistrial.
As to the in-court demonstration. This was objected to but no motion for mistrial was made. This point is not preserved for review. State v. Woodard, 499 S.W.2d 553, 560 (Mo.App.1973). However, the demonstration concerning the relative positions of Overtis and appellant and appellant’s position during the affray cannot be prejudicial and do not violate defendant’s Fifth Amendment rights. Defense counsel, on direct examination of the defendant, inquired where Overtis’ arms were and where the defendant’s hands were during the scuffle, hence the demonstration was not beyond the scope of the direct testimony.
Several demonstrations concerning actions of various parties and witnesses were made throughout. As to the demonstration complained of, the defendant was asked by the court whether he could demonstrate the situation and the defendant replied that he could.
There was no violation of defendant’s guaranty against self-incrimination. Traditionally, this guaranty applies to testimonial compulsion and does not preclude a demonstration when the defendant takes the witness stand. Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); California v. Byers, 402 U.S. 424, 431, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971); United States v. Dionisio, 410 U.S. 1, 5-6, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); State v. Dean, 400 S.W.2d 413, 416 (Mo.1966); State v. Hill, 328 S.W.2d 656, 660-661 (Mo.1959).
We have reviewed the total record, the briefs and decisions relied upon by the appellant. We find none of the authorities relied upon are dispositive of this cause.
Finding no prejudicial error, the judgment is affirmed.
. § 559.070, RSMo., 1969.
. § 559.180, RSMo., 1969.
. “INSTRUCTION NO. 5. In reference to Counts I and II the Court instructs the jury that the right to defend oneself from danger is a right to which a person may have recourse under certain circumstances and conditions in order to prevent and apprehended injury to himself by another. Therefore, if you believe and find from the evidence in this case that at the time the defendant shot Overtis Bailey and Sam Bailey, if you find he did so shoot them, he had reasonable cause to believe and did believe that the said Overtis Bailey and Sam Bailey were about to take his life or to do him some great personal injury, and if you further believe and find from tlie evidence that lie had reasonable cause to believe and did believe that it was necessary for him to shoot said Overtis Bailey and Sam Bailey in order to protect himself from such danger, and that he had reasonable cause to believe and did believe that it was necessary to use such means to protect himself, then he ought to be acquitted on the ground of self-defense. Whether the defendant had reasonable grounds to believe that such danger existed, and whether he shot at Overtis Bailey and Sam Bailey in the honest belief that it was necessary for the protection of his life or person, are questions that you must determine from all the evidence
. No motion for mistrial was in fact made.
. MAI-CR 2.40, effective January 1, 1974, now specifically places the burden on the state that the defendant did not act in self-defense.
. See State v. Broomfield, 510 S.W.2d 843, 1973 (Mo.App.).
. “The court gave an instruction which covered the presumption of innocence, reasonable doubt of guilt, and the burden rests on tiie state to prove guilt beyond a reasonable doubt. The court was not required to give a self-defense instruction which combined with it a burden of proof or reasonable doubt instruction.” State v. Cooksey, 499 S.W.2d at 490.