State v. Howard

540 S.W.2d 86, 1976 Mo. LEXIS 303

• Court: Supreme Court of Missouri
• Decided: September 13, 1976
• Docket: 59353
• Status: Published

Opinions

DONNELLY, Judge.

Appellant, Michael Richard Howard, was convicted of rape under § 559.260, RSMo 1969, and of robbery in the first degree under § 560.120, RSMo 1969, in the Circuit Court of the City of St. Louis, and his punishment was assessed at ten years and five years, with the sentences to run consecutively. Following rendition of judgment and imposition of sentences, an appeal was perfected to the St. Louis District of the Court of Appeals. In that Court the conviction was affirmed but the cause was certified to this Court by a dissenting judge under Mo.Const. Art. V, § 10. We determine the cause the same as on original appeal. Mo.Const. Art. V, § 10.

Appellant asserts the trial judge erred when, in the presence of the jury, he commented on appellant’s “failure to testify.”

At the close of all the evidence, as the trial judge proceeded to read his instructions to the jury, the following transpired:

“MEMBERS OF THE JURY:

“The State of Missouri, by the Substitute Information in Lieu of Indictment, charges the defendant, Michael Richard Howard—

“THE DEFENDANT: My name is Michael Richmond Howard.

“THE COURT: I understand that. You indicated your name is Richmond.

“THE DEFENDANT: No, he said that.

“THE COURT: The papers indicate that the name is Michael Richard Howard.

“THE DEFENDANT: I’m going to be wrong—

“THE COURT: Now you were given the opportunity to take the stand. You’re going to keep quiet through these proceedings or you’re going to have to leave the courtroom.” (Emphasis ours.)

Appellant concedes that his assertion of error was not raised at trial and was not preserved in his motion for a new trial, but urges that he is entitled to relief by virtue of the provisions of Rule 27.20(c), which reads as follows:

“Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of injustice has resulted therefrom.”

In State v. Meiers, 412 S.W.2d 478, 480, 481 (Mo.1967), Division No. 1 of this Court said:

“ * * * Since its adoption we have invoked Rule 27.20(c) on a case to case basis to prevent ‘manifest injustice or miscarriage of justice,’ and we shall continue to do so where substantial rights are affected whether or not the error is ‘ * * * raised in the trial court or preserved for review, or defectively raised or preserved * * *.’ But there must be a sound, substantial manifestation (not perceivable here), a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked. We shall not invoke the rule in every case where it is claimed for the first time on appeal that this or similar state or federal constitutional rights have been violated, or for that matter, in every case where it may appear for the first time on appeal that such rights in fact have been violated.”

In State v. Ellifrits, 459 S.W.2d 293, 297 (1970), this Court en Banc said:

“Precedents are of little value in determining when relief should be granted under the plain error rule. And that is particularly true where, as here, no constitutional question is involved. * * * The rule to be followed is summarized in State v. Patterson, Mo.Sup., 443 S.W.2d 104, to the effect that we will review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.”

It has been suggested that relief should always be given under Rule 27.20(c) when a “constitutional” error is involved. We do not agree. Even a federal constitutional error may be considered harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We will continue to “review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.”

We have reviewed the whole record in this case and believe, under the facts and circumstances therein disclosed, that the trial judge’s comment, in the presence of the jury, resulted in manifest injustice.

We agree with counsel for appellant that the comment constituted a direct and certain reference to the failure of appellant to testify, and violated Art. I, § 19 of the Missouri Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

In addition, and more importantly in ruling the “plain error” question in this case, we believe the comment could have effectually shifted the burden of proof from the State to the appellant.

In State v. Malone, 327 Mo. 1217, 39 S.W.2d 786 (1931), this Court exhaustively reviewed the subject of burden of proof in a criminal case. The burden of proof is on the State throughout the trial to establish by evidence the guilt of the accused beyond a reasonable doubt.

We are of the opinion that the comment made by the trial judge, while in the process of instructing the jury, was prejudicially erroneous. Here, the jury could reasonably have understood the judge’s remark to mean that appellant was guilty because he declined “the opportunity to take the stand.” In these circumstances, it is reasonable to believe that the presumption of innocence of the accused was violated, that the jury could have understood that the burden of proving his innocence was on the accused, and that the accused was deprived of a fair and impartial trial. The historical significance of approving such a probable deprivation of rights compels us to hold that manifest injustice resulted here. (Cf. State v. Embry, 530 S.W.2d 401 (Mo.App.1975).)

The judgment is reversed and the cause remanded.

SEILER, C. J., and MORGAN and HENLEY, JJ., concur. HOLMAN, J., dissents. FINCH, J., dissents in separate dissenting opinion filed. BARDGETT, J., dissents and concurs in separate dissenting opinion of FINCH, J.