Sterling Robinson appeals from his conviction, after jury trial, of assault in the third degree, § 565.070, RSMo 1986,
On October 16, 1990, Sterling Robinson ran into his former girlfriend and her niece at a Price Chopper grocery store. He struck his former girlfriend, causing her to fall down and, while she was on the floor, he continued to hit and kick her. Mr. Robinson admitted the assault at trial, testifying that previously the victim had lied to him, spread lies about him and was observed by him in the company of a man he described as a “pimp.” The jury returned a verdict finding Mr. Robinson guilty of assault in the third degree and assessed a punishment of imprisonment in the county jail for forty-five days and a fine to be determined by the trial court. The jury acquitted him on another count of assault in the third degree wherein he was charged with assaulting his former girlfriend’s niece. The trial court sentenced defendant to forty-five days in the county jail and imposed a $250.00 fine. Mr. Robinson appeals.
Prior to addressing each individual point raised by Mr. Robinson on appeal, it is noted that all of his points relate to his attempt to bring before the jury the prior bad acts or conduct of the victim, his former girlfriend, and his resulting aggravation and frustration with the victim which
In his first point, Mr. Robinson alleges that the trial court improperly prevented defense counsel from asking questions of prospective jurors during voir dire designed to elicit their feelings about violence between men and women. Counsel told the jury a story of his sister who had felt that she deserved a black eye given to her by her boyfriend. Defense counsel then asked, “what could she have done to deserve a black eye? Anybody here who has an idea of what — what she meant by that, because she was very sincere. She felt that she deserved a black eye.” The prosecution objected to this question and the trial court sustained the objection. Defense counsel also told the court, out of the hearing of the jury, that he intended to ask concerning his sister “was she right or wrong in thinking that she deserved a. black eye?” and “can a woman, quote, ‘have ever, quote, have it coming’ unquote?”
Defense counsel was allowed to explore the issue in depth, however, when one of the male jurors, Patrick Wagner, disclosed his strong feelings on the subject of men who hit women. After defense counsel again attempted to frame an acceptable question, the trial court questioned the jury on the matter. The court inquired:
I’m going to ask one question, ladies and gentlemen. Of course, Mr. Robinson is a man and the alleged victims are females. Is that fact — Would that cause anyone to disregard the instructions and the law as presented by the Court and the evidence as it’s presented, or, knowing that, that the alleged victims are females and the defendant is a male, are you still able to follow the instructions of the law as presented and the evidence as you find it in reaching a verdict? Would you be prevented in any way from doing that because of the difference in sexes? Is there anyone who would feel that they could not follow the instructions or the law because of the difference in sexes?
The silence of the jury panel members is assumed to be negative responses to the questions asked. Defense counsel still did not feel that the court had adequately covered the subject but the court refused counsel’s request to ask further questions as to the issue of bias.
It is a litigant’s right to discover bias and prejudice on the part of prospective jurors through the process of voir dire and a litigant should be allowed a wide latitude in his search for open-minded persons to serve as jurors. State v. Finch,
Control of the nature and scope of questions on voir dire examination of veniremen is lodged in the discretion of the trial court, and an appellate court will interfere with the exercise of that discretion only when the record shows a manifest abuse of that discretion and a real probability of injury to the complaining party. State v. Hobby,706 S.W.2d 232 , 233 (Mo.App.1986).
State v. Lottmann,
In Point II, Mr. Robinson alleges that the trial court erred by not allowing counsel to comment upon the victim’s character and prior conduct as motive for the assault during his opening statement. Counsel wished to inform the jury, through the device of opening statement, that the victim used drugs; was seen by Mr. Robinson on several occasions in the company of a local pimp; interfered with Mr. Robinson’s job; had taken money from him; and had lied to him.
The control of the opening statement lies within the sound discretion of the trial court. State v. Ivory,
In the instant case, defense counsel improperly tried to argue that Mr. Robinson was frustrated and incensed by the victim’s past bad actions. Even had such past actions of the victim been relevant, defense counsel’s proffered statement about the victim is best characterized as argument and, as such, improper to opening statement. State v. Hamilton,
In Point III, Mr. Robinson complains that the trial court erred by not allowing cross-examination of the victim with questions designed to test her accuracy, veracity, credibility and character. Specifically, defense counsel proposed to question the victim as to whether she lied to Mr. Robinson; took Mr. Robinson’s money to buy drugs; and lied about seeing another man. Defense counsel made an “offer of proof” as to these questions; he did not cross-examine the victim.
It is an elementary tenet of law that evidence as to a victim’s character is inadmissible except in specific instances. For example, when self-defense is asserted, a victim’s reputation for violence is generally admissible on the question of who was the aggressor. State v. Williams,
The judgment is affirmed.
All concur.
Notes
. All statutory citations are to Revised Missouri Statutes 1986, unless otherwise stated.