State v. Brazil

813 S.W.2d 327, 1991 Mo. App. LEXIS 1057, 1991 WL 125497
CourtMissouri Court of Appeals
DecidedJuly 9, 1991
DocketNo. 57213
StatusPublished
Cited by1 cases

This text of 813 S.W.2d 327 (State v. Brazil) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brazil, 813 S.W.2d 327, 1991 Mo. App. LEXIS 1057, 1991 WL 125497 (Mo. Ct. App. 1991).

Opinion

PUDLOWSKI, Presiding Judge.

Defendant, Darryl G. Brazil, (hereinafter defendant), was convicted on July 20, 1989, by a jury of one count of burglary in the first degree, one count of assault in the first degree and one count of armed criminal action. After being found to be a prior offender, the defendant was sentenced on August 17, 1989, to a fifteen year term of imprisonment for the burglary count to be served concurrently with a thirty year term of imprisonment for the assault count combined with a fifteen year term of imprisonment for the armed criminal action count to [328]*328be served consecutively to the other terms. This appeal follows.

The evidence adduced at trial viewed in the light most favorable to the verdict reveals that the victim, Deborah Sistrunk, who resided in Berkeley, Missouri and was the divorced mother of two minor children, Ishmael and Anthony, had been employed as an associate news producer at a St. Louis television station for nine years when the crime occurred. Sistrunk met the defendant through a mutual friend, Diane White, while they were working on a business proposal in the spring of 1988. While working on this business proposal, Sistrunk began having an affair with the defendant, engaging in sexual intercourse at least twice. Soon after this relationship began, Sistrunk became pregnant. When she told the defendant about the pregnancy, he reacted by telling her to have an abortion. Defendant was upset because he didn’t want his affair with Sistrunk to ruin his relationship with his fiancee, Pamela Talley, who he had been living with for five years. Sistrunk told the defendant that she wanted to have the baby because she did not believe in abortion.

The defendant tried repeatedly to change Sistrunk’s mind about not having an abortion and would call her frequently. These conversations would often deteriorate into the defendant using very abusive language and Sistrunk then hanging up the phone. Although the defendant didn’t know at first where Sistrunk lived, he found this information out in November of 1988.

On January 7, 1989, the evening of the attack, the defendant called Sistrunk and asked if he could come over to visit her at her home. Sistrunk objected and told him that she didn’t want to see him that evening, finally hanging up the phone. Later that evening, at 7:30 or 8:00 p.m., a young black man approximately seventeen years old who Sistrunk had never seen before knocked on her door. The man who was later identified as Monty Ross had allegedly been sent by Huel Perkins, an ex coworker of Sistrunk’s to tell her about a meeting with Perkins the next morning — a Sunday. Sistrunk thought this was suspicious and decided to call Huel Perkins. Sis-trunk was not able to reach Perkins but left a message on his answering machine.

Later that night as Sistrunk was sleeping on the living room couch, she was awakened by the sound of the patio door of the kitchen opening. Monty Ross soon thereafter appeared in the living room. Ross told Sistrunk that he had been sent by someone to kill her but that he didn’t want to do it. Ross proceeded to ask Sistrunk to engage in sexual intercourse with him but she declined. Ross then asked her to perform sodomy on him but she again declined. Ross then attempted to kiss her but she resisted and Ross pulled out a knife. After pushing Sistrunk to the floor in the living room, Ross stabbed her repeatedly around the neck and the upper part of the body. Ross also stabbed her in the hand. At some point Sistrunk stopped screaming and pretended to be dead. Ross believing her to be dead left the house and one of Sistrunk's children who had witnessed the stabbing called 911. Sistrunk was taken to the hospital and later identified her attacker from a photo lineup as Monty Ross.

Later on the night of the attack, while at Pamela Talley’s house, where the defendant lived, Sistrunk’s brother Sylvester Caldwell, saw a man that met the description of his sister’s attacker. After Caldwell reported this information to the police, the defendant was called down on January 10, to the Berkeley Police Station for questioning. The defendant initially denied knowing anyone who would have wanted to injure Sistrunk, but upon further questioning the defendant admitted he knew who was responsible for the stabbing.

The defendant subsequently made a taped statement in which he admitted that he was upset and that Sistrunk had been nagging him. Defendant went on to state that he didn’t want Sistrunk to have the baby because he was getting engaged to Pamela Talley. Defendant also admitted in his statement to the police that he had been drinking at a bar with Monty Ross earlier on the night the stabbing took place and that he had shown Ross where Sistrunk [329]*329lived. The defendant further stated that he stayed at the bar while Ross left and then later returned. After Ross returned to the bar, the defendant stated that he took Ross back to Talley’s house in order to hide him.

Defendant’s first point on appeal alleges the trial court’s failure to strike for cause four members of the venire (Wade, Menzel, Gerst and Hempen) who stated that they could not render a verdict of not guilty if the defendant exercised his right not to testify, depriving him of his right to a panel of qualified jurors from which to make his peremptory challenges. We disagree.

The statements made by the venireper-sons that the defendant relies on in raising this point occurred during voir dire when defense counsel was questioning the venire about the state’s burden of proof and about each juror’s feelings regarding the defendant's right not to testify. Upon reviewing defense counsel’s voir dire of the jury, we find that any ambiguity that existed in regard to the meaning of each juror’s responses was created by the confusing phraseology defense counsel used in posing his questions to members of the venire. When the prosecutor was given an opportunity to examine the challenged jurors, the alleged bias proved simply to be their misunderstanding of the meaning of defense counsel’s questions. We find that the following questions by the prosecutor and the corresponding answers from each of the four challenged jurors reveal that when clear questions were asked the challenged jurors gave unequivocal assurances that they would not be biased against the defendant if he did not testify.

PROSECUTOR: Okay. And, Ms. Wade, the same set of questions to you. It’s up to me to prove him guilty beyond a reasonable doubt and, if after hearing the evidence I present you have a reasonable doubt, can you find him not guilty if you don’t hear from him? If you don’t understand me, say so and I will try to rephrase (sic) it.
PANELIST WADE: Yes, I could find him not guilty.
PROSECUTOR: You understand that there is a difference between hearing what you might like to hear and what you may hear. So I may, you know, put on evidence and if you find there is not enough evidence there, there is just no link, you can walk him then even if you don’t hear from him?
PANELIST WADE: (Nods her head)
PROSECUTOR: And going back to Mr. Hempen, I am going to do it again with you as well. There is a difference here. You know I talked about the disputed facts and the fact there may be certain things that you might want to hear, but you may not hear, and I asked if you could make a decision even though you may not hear everything?
PANELIST HEMPEN: Yes.

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Related

State v. Sanders
842 S.W.2d 916 (Missouri Court of Appeals, 1992)

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Bluebook (online)
813 S.W.2d 327, 1991 Mo. App. LEXIS 1057, 1991 WL 125497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brazil-moctapp-1991.