State v. Steward

Missouri, Respondent, STATE of STEWARD, Appellant.

Donald

No. 69036. Missouri,

Supreme Court

En Banc.

July 14, 1987. Simons,

Holly Office of De- G. Public fender, Louis, appellant. St. Webster, Gen., Atty. La- William L. Paul Gen., Rose, Atty. City, Asst. Jefferson respondent.

RENDLEN, Judge. (appellant)

Donald Steward was indicted separate counts for first mur- sisters, (Ruthie) alleged accomplices he Ruthie Brown that or the struck ders of two (Faustina) pursuant Ruthie; (2) Brown that Faustina evidence causal (Count I) alleged ap- 565.020.1.1 It was relationship his between conduct or the ac- § others, “acting with de- pellant while after alleged co-participants tions of the and the liberation, knowingly Brown killed” Ruthie of Faustina “too death attenuated” to 7, “by striking her” 1984 and on October appellant demonstrate was aware such ac- (Count II) “acting appellant “practically tivities were certain” cause deliberation, others, knowingly after death; (3) her no evidence demonstrat- “by caused” the death of Faustina Brown ed deliberation as to either murder count. 7,1984. striking her” on Addition- October examining sufficiency When for the (Count III) charged first ally he was evidence, “accept our as role is true 569.160)2 (Count (§ degree burglary evidence whether circumstantial or di 569.020).3 IV) (§ degree robbery first rect, guilty tending prove [appellant] Following appellant a directed verdict together with all reasonable inferences IV, appellant on Count was convicted supportive of the verdict.” State v. remaining from the three counts and is Brooks, 22, 1981). 618 S.W.2d Af- appeal is taken. these convictions Additionally, “disregard we must District, in ter the Eastern reversal portions contrary to the ver record it is decided cause was transferred and dict, is mindful our function original Mo. though appeal. here as weigh the evidence but to determine Const, V, (1945 1970 and art. amended § there sufficient evidence ‘whether persons from which reasonable could have ” presented state evidence charged.’ [appellant] found been aware the appellant would have Brooks, 23, quoting 618 S.W.2d at State money kept sums of two sisters substantial 106, 109 Kelly, 539 S.W.2d apartment. scattered around Johnson, 510 S.W.2d quoting sought prove appellant state (Mo.App.1974). alleged accomplices had and as- entered apartment two in their saulted the sisters evi first whether the determine they kept money in to steal the order support a dence was sufficient there. finding Ruthie was struck either pa accomplice. A forensic appellant or an Challenging sufficiency of evi- autopsy thologist performed the testi charges, appellant dence as to murder “an fore- (1) fied she found area evidence was introduced [Ruthie’s] contends: (3)There present another statutory Re- is in structure All to Missouri 1. references are person participant otherwise. in the crime. vised Statutes 1986 unless indicated who is anot degree is a B Burglary 2. in first class provides: Section 565.020.1 person felony. in commits crime murder A degree knowingly he causes the the first provides: person after deliberation 569.020 death of another 3.Section upon the matter. robbery person 1. commits crime A forcibly degree steals he in the first when provides: 569.160 2. Section he, or property in course thereof burglary person the crime 1. A commits crime, participant in another degree knowingly enters first he (1) injury physical unlawfully knowingly Causes serious unlawfully or remains building person; structure for the or or inhabitable a therein, committing (2) deadly weapon; or purpose of a crime Is armed with entry effecting (3) or while the build- use of the immediate Uses threatens or in immediate any person; or inhabitable structure against dangerous instrument therefrom, participant in flight or another the crime: (4) Displays use or threatens the deadly (1) explosives or Is armed with dangerous weapon deadly appears to be or; weapon instrument. (2) physical Causes or threatens immediate Robbery is class A first 2. injury participant person who not a felony. crime; swelling, head where appellant there was a little attenuated that was unaware slight “practically area contusion and a abrasion death would certain.” scraped where little bit of skin was challenge final the evidence off_” Additionally, autopsy finding relates to the of deliberation. We vealed “several fractured ribs between the have held that deliberate act ais ‘free “[a] left investigating two sides.” An will,’ act of the [citations omitted] police officer testified told Faustina him design done ‘in furtherance of a formed [appellant] that “Donald was the one who gratify a of feeling revenge or to accom struck her her and sister numerous times.” plish purpose some other unlawful jury From these facts the could rea- while not under the influence of a violent sonably partici- concluded that one of the passion suddenly provoca aroused some pants struck Ruthie. tion,’ Davis, State v. [citation omitted].” 167, 172 Appellant next contends that appellant evidence showed that run had relationship evidence of causal between the sisters, for frequently errands kept who of death Faustina and the actions substantial money apart sums implicated purposes “too attenuated” for “wrapped ment in tissue or handker showing he was aware death was Also, Sturghill chiefs....” that Michael “practically certain” to result. The same (Sturghill), another of the individuals pathologist, performed autopsy on matter, charged in this was found one supervised Ruthie autopsy conducted ninety-five dollars, hundred some of which on Faustina. She testified that on October bloodstained, was his tennis 7,1984 Faustina injury sustained a head addition, In shoes. gauze, bloodstained the result of an at apartment assault her by appellant used to cover a cut sustained 11, 1985, and died January on from the evening assaults, of the was also intro infarction, of pulmonary combined causes type duced trial at blood of that infection, urinary “general tract and a gauze found on matched that on the ized infection the bloodstream.” This money Sturghill concealed his shoe. opined witness underlying “the cause From this evidence in conjunction viewed that started all of inju this was the head testimony appellant struck ry...” and concluded that “the 'proximate times,” jury the victims “numerous injury cause a head put her in [was] appellant have concluded acted position for all of complications.” these deliberation. added.) (Emphasis Appellant makes essen argues Appellant next that comments argument tially same judge trial after delibera- rejected Bolder, 673, 635 S.W.2d commenced, tions had constituted im- denied, cert. 459 U.S. proper MAI- instructional substitute for 1137, 770, (1983) S.Ct. L.Ed.2d 983 jury CR2d 1.10 which coerced the return the reasons discussed Bolder we argues verdict. The state that the re- unpersuaded Bolder, are also here. marks did not constitute a coercive instruc- defendant, inmate, prison stabbed another tion, appellant preserve failed ultimately inmate who died not from the objecting challenge at resulting stab wounds but rather the infec “general nonspecific allega- tion. Id. 635 S.W.2d at 678. We noted it tions of error” in his motion for trial no difference that died “[made] [the victim] preserve insufficient claim resulting from an infection from the stab error. bing stabbing rather than from the itself.” Id. 680. Similarly, at it is of conse jury little The cause was submitted to the at quence August Faustina died of 12:30 on p.m. 1985. At 5:05 complications resulting p.m. brought inju jury the head ry she sustained inju inquired rather than the head the courtroom at which time he ry reasonably itself. The could have taken votes numerical found that time, the cause her standing death was not votes. At that such jurors considering asked whether the circumstances the time in might thought a be reached follow- put this trial and effort that has been deliberation; ing further indi- importance into it and of this trial to both where the returned to the courtroom court at 8:00 questions change was not cated that should deliberate.” After verdict was long [they jury. You have to unanimous verdict tinue counts? man—forewoman continue I, disagrees not long three counts you have—Should encouraging So arrive at a unanimous verdict opinion my questions to three counts Guilty THE THE Do THE COURT: Please do THE Count opinion as complete entire encouraging ^[*] you all you deliberating you you deliberation, say COURT: FOREWOMAN: attempting “to or not COURT: dealing say following that have an II, disagree ^[*] were] to deliberate, should deliberate. so because possible. p.m.4 and Count give openness placed against you. Count continue, whatever, I have to that. or believed anything that this ^[*] me, going Is there feeling me a verdict in order has All you occurred: agreement, my give me [sic] Judge, punishment to the told the now told each there is a ^[*] disagree opinion During will arrive to deliberate or on each tell III. agreement very to that if discussion here Yes. your response. any juror returning not balloting work you [them] ^[*] we Is frankly assume as to how the three sent us? I’m you I’m because verdict. it on chance Should again ^[*] fore- on a only p.m. con- how you will two ex- to on the record” when Rule 28.03 indicates of error was not to tive” and for this objection at quired properly preserved. The record indicates tute first consider whether the defense counsel again counts. A which the court on its has required in instructions and verdict forms given made on the record or to instructions or verdict giving or record to enlarged in motions for new trial. or verdict specific object specifically Objections made at time Before intend to do. parties, would, tinue directed toward the give give” party may, p.m. error. Rule 28.03 to retired and at 9:05 given to, MAI-CR2d at the an instruction “on instructions forms addressing exchange objections object specifically trial. form refusing of deliberation, motions request failed did refusal of may but is not which reason waived 1.10 and not now Appellant’s made the court has “failed or to course, for new trial unless to object 8:30 or provides: party generally he has given alleged the time supplemented or p.m. appellant’s but instructions propriety give. three point own of trial to the its own in this p.m. 8:15 that’s to required ask other forms to be returned its is “not absence or refused instruction requested, any remaining initiative complaint However, generally to consti- has been p.m., shall be of trial. on the regard failure of the party, forms of the initia- claim con- re- to, then arises whether question verdict, care don’t we arrive at [sic] present- adequately error the claim of was are. And under verdicts p.m. courtroom at 8:15 reading was assembled 4. While the instructions to case, argues prior statements con- Appellant of the that these submission also reversal, however, apparently on the grounds made an erroneous statement do not we stitute remand, subject punishment. Recognizing his error arising anticipate problem confusion, generated attempted prop- had further here. need address it erly subject state the law on the when appellant’s 28.02(c) ed to the court motion for was violated a non-pat- because trial. tern Point seven of that as- oral instruction was motion given following: serted the pattern instruction, 1.10, MAI-CR2d giving failing not tendered. The giving Court erred in additional pattern instructions instruction they is deemed “consti- prejudicial turned to the tute error” and the courtroom and effect is a entered the box after appeal. sent to matter be determined on Rule 28.02(e). room with instructions. (Emphasis added.) quoted While the lan- judge in The trial guage is less than a desirable model for 1978) 11-12 points, such it sufficiently does assert that found to orally” by have “instructed stat- trial court erred in the oral following: non-pattern reason- Foreman, Mr. communique ably be prescribed inferred that the pattern course, I’ve read of accepted cannot be given. instruction should have been Hence by this as a going Court verdict. I’m find no waiver. send Jury back to the room

Now the merits: MAI-CR2d 1.10 admonishment that are to read provides: the instructions which have been and that deliberate further and

It is desirable that there be a verdict in thereafter return three verdicts. every case. The trial of a lawsuit in- We, defendant, the jury, Larry find the effort, volves considerable time and and We, Hayes guilty Allen not jury, the parties the are entitled to have their defendant, Larry find the Hayes, Allen rights determined once and all in charged guilty punish- as his and assess every case. The twelve chosen to you ment and there have two alterna- try case this should qualified be as well in tives accordance with the verdict to do so as might other twelve that previously have referred to Open hereafter be chosen. frank and you’ve agreed return a verdict that upon by you your discussion in jury room of guilt agree upon the but cannot pun- the may evidence in this case aid in ishment. agreeing upon facts; however, no juror should ever agree bring admonish this back a verdict that violates the instructions verdicts and will ask Court, nor as a notify Dep- that which deliberate further and to find fact under the evidence his uty have and conscience further communica- believes be tion to untrue. Yet this Court. each of respect opinions your added.) (Emphasis The italicized comments fellow as would them have Hayes of similar are tenor the trial respect yours, in spirit of tolerance cause, i.e. that understanding bring endeavor “you give have me a verdict in order deliberations of the whole to an complete entire work the jury. [sic] agreement upon a verdict. give Guilty You have to me a verdict. (Emphasis added.) 28.02(a) autho- not Rule on each the three counts appro- placed rizes against you.” (Emphasis added.) this instruction “when priate But, after offending language extended deliberation not ac- jury.” appro- Such instruction companied by explanatory language sole priate 28.02(c) that, juror provides instruction as Rule MAI-CR2d 1.10 "... applicable pattern that an agree ever to a verdict that violates the instruction “shall Court, given be or used of any instructions nor as to the exclusion find subject.” other the same which under evidence and It is notewor- fact thy conscience he believes to be untrue.” being that besides read to the (Emphasis MAI-CR2d 1.10 “shall be handed we described jury.” case, language Notes on quoted immediately Use 2. In this Rule above as BLACKMAR, Judge, dissenting. of the in- “a is the caution crux [which] to detract its absence tends struction conviction, The Court strains to reverse and the duty juror from the of a basic evidence, very in a amply supported by fair concept of a trial.” fundamental doing, case. In overlooks two serious so it at 12. add- Hayes, 563 S.W.2d principles appellate practice. basic ed.) oral Hayes We concluded First, require party normally given preju- “could had a instruction steps take measureable to call appellant’s effect on to a dicial error, [the] perceived attention to at a court’s fair The oral trial.” Id. instruction can made. Sec- time when correction be the “caution” judice the case sub lacked ond, we re- perhaps important, more so crucial this Court considered prejudice. for error verse not but returned its Hayes. fact making The Court excuses counsel from thirty-five being ad- minutes after by labeling objection immediate “[y]ou give have to me ver- monished “instructions,” and then judge’s comments dict,” under sub- when the case 28.02(e), pointing to hold that to Rule as hours, three-quarter mission for seven specific objection unnecessary. I do prejudice suggests a sufficient likelihood extend- that the rule should be believe granting of a new so as to warrant language. It consti- beyond plain ed its judge’s com- of the trial trial. While some exception to the normal rules of tutes an sup- arguably can be referenced ments narrowly ap- practice, and should be port was not finding may every plied. Severe mischief result ameliorating any adverse coerced communication between ap- consequences the failure to held to be an instruction. word engendered, proved bar, “if the spread among the criminal approved absence of the we believe the something may hurt says coupled essential “caution” instruction’s case, keep quiet. Don’t ed- your client’s requires noted comments reversal. Put prosecutor. court ucate the bag. speak up If error argues that The state the decision problem you won’t correct the (Mo.App. Harvey, 641 S.W.2d 792 anything appeal.” have 1982) point” “directly on is the Court of this case. There adopted compounds principal opinion the The judge had that the trial Appeals found judge of error by convicting the trial fault ” inquired merely “could whether “non-pattern oral instruction” Id. at 799. reach a verdict. (now MAI-CR3d 1.10 instead of MAI-CR2d distinguish is Harvey We believe 312.10). the so-called That instruction is “[y]ou which, the comment here my experi- able because “hammer” instruction me a exceeded bound defend- ence, usually verdict” is not welcomed simply inquiring a verdict trial aries of whether I am confident ants. be reached. the hammer “could” would have for it. One had asked counsel defense is the cause judgment The reversed and judges who future trials thing sure. is is remanded for a trial. give the hammer play want to safe infor- inquiring than freely, rather more DONNELLY, BILLINGS, C.J., and opinions as jurors’ about the mally JJ., WELLIYER, HIGGINS, I am not at all agreement. possibility of concur. would of affairs such a state sure that jus- criminal administration of improve the BLACKMAR, J., separate dissents tice Missouri. opinion filed. preservation point of Turning from the merits, unconvincingly re- the Court to the ROBERTSON, J., dissents and of vari- prejudice presumed lies because opinion dissenting in separate concurs argument, its MAI. To buttress ation from BLACKMAR, J. Inc., context, it lifts one Freightways, ed sentence out of S.W.2d overlooking trial judge's conscientious efforts to it very jurors make clear State they obliged agree. were not When clearly distingishable. The jurors p.m., were called in at judge quoted marks of in the example, judge explained “[tjhere principal opinion seem give are when jury those times tries their best They virtually alternative. are commanded verdict, but does not arrive sim- comparison to reach a verdict. There is no ply majority cannot at a arrive a ma- —not to the remarks case unanimity jority, opinion.” He now before us. asked if then the forewoman understood One further comment on MAI-CR3d verdict, to reach all twelve appropriate. 312.10 is “Al- so-called agree. responded had to She in the affirm- “dynamite” len” or or “hammer” instruc- ative, Judge continued, Mehan “and so tion has been much criticized. Numerous guess you is, I I’m asking versions have used judges various deliberate, continue do think years. over the language Some contain will arrive at a unanimous I verdict? don’t highly history which is coercive. The is, care what the verdict will at a arrive Blackmar, in 1 Federal detailed Devitt and time, unanimous verdict?” Instructions, Jury Practice Section again during exchange which occurred (1977). 18.14 represents The MAI version 8:15, Judge repeatedly gave Mehan attempt provide simple, an non-coer- opportunity to dissent from the cive model for a trial who wants to opinions expressed by forewoman, Allen-type use an It instruction. well as from his decision to send them back designed inquiry to foreclose discrete about for more deliberations. Even prospects for a Yet princi- verdict. quoted by majority Judge note Mehan’s opinion pal predictably has this effect. plea: “do my questions not assume in inor In the I I point view take must reach the my discussion here with judge’s error in initial advis- opinion long as to how should deliber- punish- about the authorized continue, ate. Should have—should what- prejudice, ment. There is no because ever, I opinion have no toas that.” eventual instruction was correct. Correc- simply conclude, reading cannot from a guilt tion did not relate to innocence. of all of the colloquy punish- assessed the minimum juror possibly conclude appropriate ment to first murder he or obliged agree she was to a conviction. not countenance against verdict which ran the conscience. holding which would make the correction The clearly asked the whether impossible. instructional error they thought they agree; he made it It is of interest that ob- defense counsel that they

clear did not have to. There is no jected to the correction the instructions indication coercion. punishment, about authorized must also assume that maining silent on matters which judge, ruling trial, the motion for new By doing, reversal is based. the tHal gave full consideration to the claims court was led to believe that there nowas prejudicial pressure counsel objection proceedings be- concluded, jury, and in the context jury. tween court and prejudice. entire there judgment of conviction should be He should not be considered interested affirmed. party simply reconsidering because he is rulings.

his own purpose a motion permit

for new trial is to such reconsidera- give great

tion. We weight

conclusion about the essential fairness See Yoon v. Consolidat- proceedings.

Case Details

Case Name: State v. Steward

Court Name: Supreme Court of Missouri

Date Published: Jul 14, 1987

Citation: 734 S.W.2d 821

Docket Number: 69036

Court Abbreviation: Mo.