State v. Lomax

712 S.W.2d 698, 1986 Mo. App. LEXIS 4068

• Court: Missouri Court of Appeals
• Decided: April 29, 1986
• Docket: No. 46893
• Status: Published

Opinions

CRANDALL, Presiding Judge.

Defendant, Leslie Lomax, appeals from his conviction, after a jury trial, for capital murder. He was sentenced to life imprisonment without possibility of probation or parole for fifty years. We affirm.

Defendant does not challenge the sufficiency of the evidence. From the evidence, the jury reasonably could have found that defendant, acting with others, murdered Gregory Erson, an undercover police officer who was working a prostitution detail in a high crime area in St. Louis known as the “Stroll.”

Defendant first contends that the trial court erred in overruling his motion to dismiss the present charge against him based on double jeopardy. At defendant’s first trial the prosecutor entered a memorandum of nolle prosequi after four days of voir dire but before the jury was sworn. Shortly thereafter, defendant was re-indicted and re-tried, resulting in this conviction. Defendant also argues that the jeopardy problem was exacerbated by the fact that the prosecutor tried to goad defense counsel into requesting a mistrial by asking improper questions during the voir dire in the first trial.

After an order of nolle prosequi is filed, prosecution ceases. The charge may be brought again as long as the accused is not placed in double jeopardy. State v. Lawson, 630 S.W.2d 185, 189 (Mo.App.1982). Jeopardy attaches in a jury trial when the jury has been impaneled and sworn. State v. Harrold, 626 S.W.2d 260, 261 (Mo.App.1981). Defendant acknowledges this fact and cites no authority to the contrary. In the first proceeding, the prosecutor filed a nolle prosequi before the jury was sworn, with the result that double jeopardy did not attach so as to bar this subsequent proceeding.

Defendant’s argument regarding prose-cutorial overreaching during the first trial is academic. Defendant never requested a mistrial and the proceeding was aborted by the nolle prosequi. Defendant’s first point is denied.

Defendant next contends that the trial court erred in denying his request that the jury panel be quashed after the prosecutor told the veniremen that the charges against a co-defendant, David Bryant, had been dismissed. The trial court sustained an objection to the prosecutor’s comments and instructed the jury to disregard them.

A mistrial is a drastic remedy, the granting of which is vested in the sound discretion of the trial court, which is in the best position to determine what, if any, impact the statement had on the jury panel. State v. Williams, 664 S.W.2d 226, 228 (Mo.App.1983). Such a remedy should be granted only when the incident is so grievous that prejudice cannot be removed in any other way. State v. Baker, 630 S.W.2d 111, 114 (Mo.App.1981). Not every instance in which the prosecutor exceeds the limits of proper comments during voir dire mandates a mistrial. To warrant a mistrial, prosecutorial remarks must be not only improper but also prejudicial to defendant under the facts and circumstances of the particular case.

In this case, the trial court sustained the objection and took corrective action to purge the prejudicial effect, if any, upon the jury. We have carefully reviewed the record and find no abuse of the trial court’s discretion. In so ruling, we do not reach the question of whether the prosecutor’s comments were proper retaliation to statements which defense counsel had made earlier to the jury panel. Defendant’s second point is denied.

The judgment of the trial court is affirmed.

SATZ, J., concurs. PUDLOWSKI, concurs in separate opinion.