State v. Dethrow

510 S.W.2d 207, 1974 Mo. App. LEXIS 1589
Missouri Court of Appeals·Decided May 21, 1974·No. No. 35415·Published·Cited by 11 cases

Opinion

McMILLIAN, Judge.

This is an appeal by defendant, Ronnie D. Dethrow, from a judgment of conviction entered by the Circuit Court of the City of St. Lbuis, Missouri, on a jury verdict, which found him guilty of burglary second degree. § 560.045, RSMo 1969, V. A.M.S. Pursuant to § 556.280(1), RSMo 1969, V.A.M.S., the court sentenced defendant to serve eight (8) years in the custody of the Department of Corrections.

For his claims of error defendant has raised three points: (1) failure of the court to permit him on cross-examination of a police officer to elicit testimony as to the results of an examination of the stolen goods and automobile for fingerprints; (2) failure of the court to permit his counsel in final argument to draw unfavorable inferences from the state’s failure to offer fingerprint evidence and (3) failure of the court to permit a broad examination of a venireman on voir dire examination. For reasons set forth herein, we affirm.

During voir dire examination in response to a question by counsel for defendant, a venireman indicated a possible [209] bias to favor the testimony of a police officer. After the state objected to the form of the question, the court rephrased the question as follows:

“THE COURT: The question . . . is this: Are you inclined to accept the testimony of a police officer even before the trial starts and without hearing that testimony and without weighing it by the same standard as you would weigh any witness’s testimony?
“GERARD MCMAHON, JR.: No.
“THE COURT: You would weigh the testimony by the same standard that the Court instructs you, by the same standard that governs every witness’s testimony ?
“GERARD MCMAHON, JR.: Yes.”

Defendant neither objected further nor requested that the juror be challenged for cause. The record is silent as to whether defendant used a peremptory challenge to remove the venireman. The only reference thereto, we find, is in defendant’s argument on his motion for a new trial. Moreover, the claimed use of a peremptory challenge to remove the juror was not brought forward in the Motion for a New Trial; thus the point was not preserved for review. While it is true that a juror is not the judge of his own qualifications, however, even a cursory examination of his responses to the court’s questions shows him to be a fair-minded juror who would evaluate each witness’s testimony by the same standards as given to him by the court. Inasmuch as the trial court is given broad discretion in controlling the examination of prospective jurors, State v. Richards, 467 S.W.2d 33, 38 (Mo.1971), under the circumstances here presented we find no abuse of discretion. So, too, the contention pertaining to the use of a peremptory challenge to remove the juror is without substance because there is no evi-dentiary basis in the record to support the claim; thus, this claim is dismissed. State v. McIntosh, 333 S.W.2d 51, 60 (Mo. 1960).

Defendant’s claim of error on circumscribing his right to fair comment in the final argument is so inextricably tied into his first claim of error that both shall be considered together.

From the evidence presented, the jury could have reasonably found that on January 29, 1972, a television and stereo set were stolen from the home of Albert Merton in the City of St. Louis. On the same evening as Officer Powell, a St. Louis police officer, turned his police cruiser into an alley near Merton’s home, he saw two men placing a television set into the trunk of a car. As he approached the car, both men fled on foot. Within a short time less than a mile from the alley, both men were apprehended. One was identified as the registered owner of the car, Thomas Wesley Maddox, and the other, the defendant. Mr. Merton identified the television and stereo set found in the trunk of the car as his missing property.

On re-cross examination Officer Powell stated that officers from the Evidence Technician Unit came to the scene. When defendant’s counsel began an inquiry as to their purpose, the state’s attorney objected that such testimony was irrelevant and immaterial. Furthermore, according to the prosecutor’s assessment not only was such evidence negative but also the state was under no duty to produce fingerprints. Defendant’s attorney responded that after the prosecutor told him he was not going to call all the people endorsed, he would like to have them all there. After a colloquy the court sustained the objection, and told defendant that he could ask the question as to whether or not the ETU was called, but could not ask the witness what they did. Continuing, the court volunteered that in the event defendant desired to argue the absence of fingerprints, there would have to be some evidence that the burglars wore no gloves. Defendant’s attorney then inquired if the court was going to exclude all evidence about the laboratory investigation — to which the court replied, “From this man.”

[210] None of the cases cited by either defendant or the- state, wherein it is stated that the state is neither required to use fingerprint evidence nor account for their absence, are apposite. The issue here is whether the court’s ruling precluded defendant from proving the negative fact that the state searched for and was unable to find any fingerprints. And, whether before any such proof would be admitted defendant was bound to show that the men present at the car did not wear gloves.

The state’s answer to the argument of defendant is that Officer Powell was a mere patrolman, not an evidence technician, and that Powell was not present when the car was processed. In State v. Whipkey, 361 Mo. 1008, 238 S.W.2d 374, 377 (1951), the court said that the purpose of a trial is the proof of all relevant facts that the jury may determine the truth; and the proof of a fact tending to contradict and possibly discredit other testimony, due to mistake or other cause, of the same witness to another fact is proper or relevant to the issue. In State v. Tevis, 340 S.W.2d 415, 420 (Mo.App.1960), the court said evidence is relevant if the fact it lends to establish tends to prove or disprove a fact in issue. Before evidence can be excluded on the ground that it is irrelevant, it is essential that it appear so beyond a doubt.

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State v. Dethrow, 510 S.W.2d 207, 1974 Mo. App. LEXIS 1589 (Mo. Ct. App. 1974).

510 S.W.2d 207 (State v. Dethrow) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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