State v. Wendel

532 S.W.2d 838, 1975 Mo. App. LEXIS 2198
CourtMissouri Court of Appeals
DecidedDecember 16, 1975
Docket36526
StatusPublished
Cited by11 cases

This text of 532 S.W.2d 838 (State v. Wendel) 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. Wendel, 532 S.W.2d 838, 1975 Mo. App. LEXIS 2198 (Mo. Ct. App. 1975).

Opinions

NORWIN D. HOUSER, Special Judge.

Convicted by a jury of robbery in the first degree and sentenced to 25 years in the custody of the department of corrections, Leonard T. Wendel has appealed, claiming he was denied a fair trial because of prejudicial comments made by the trial court, and that the court abused its discretion in connection with his sentencing.

There was evidence that in the commission of a robbery at a Velvet Freeze store appellant came around the corner, placed a big, long knife (a hunting knife with a blade 4 or 5 inches long) at the neck of the waitress, threatened to kill her, and grabbed her throat; that she screamed and moved her hand, at which time the knife cut her hand. The arresting officer caused the suspect to lie down and turn over, at which time the officer observed the knife lying on the ground. During direct examination of the arresting officer the assistant circuit attorney produced the knife for the purpose of having it marked as an exhibit. The knife was handed to defense counsel, who left the knife on a table within easy reach of the defendant. When this happened the trial court, in the presence and hearing of the jury, said, “Step over here with the knife, don’t leave that there. Look, I don’t want that exhibit left anywhere where this man can get to it.”

Bearing on the intention and motivation of the judge is his statement, made following defendant’s request for a mistrial: “Let the record further indicate there has been testimony by the victim in this case that she was cut on her hand by this knife, and it was razor sharp, and [this] was further considered by the court in directing the lawyers not to leave this knife accessible to the defendant.” At the hearing of the motion for new trial the court said, “I did it out of caution.” As he was discharging the jury, after return of verdict, the court said, “I hope that — I am sure it didn’t prejudice you when the incident [occurred] where the knife was to [sic] close. He had an escape, I was afraid for your protection, for the court reporter, and for the lawyers’ protection; that’s the reason I asked to move the knife over. I wanted to explain that to you.”

The court’s remarks were of such a nature as to reasonably tend to prejudice the minds of the jury against the defendant and to deny him a fair and impartial trial. They served to notify the jury that the trial court considered defendant a man of violence — a dangerous person who could not be trusted near a sharp knife, even in a courtroom guarded by armed deputy sheriffs; that there was a possibility that defendant [840]*840would use the knife improperly if he could reduce it to his possession.

Such impressions, conveyed to the jury with dramatic emphasis, inevitably tended to discredit defendant; reflect on him as a person of rash and turbulent disposition, untrustworthy and prone to violence, and the remarks demonstrated apprehension and a degree of hostility on the part of the court toward defendant. “Defendant was entitled to a trial by a jury that had not been urged to hostility against him by the judge of the court on whose words one would expect them to place the greatest reliance.” State v. Wright, 161 Mo.App. 597, 144 S.W. 175, 178 (1912).

Appellant further suggests these remarks can only be construed as indicating the court’s belief that defendant committed the robbery with this knife. While we do not necessarily concur in this suggestion we are firm in the belief that they indicated the court’s belief that defendant was capable of using the knife for improper purposes, and disposed to do so.

“[T]he court must always maintain an absolute impartiality in any trial, both in its remarks and in its conduct generally * * State v. Sanders, 360 S.W.2d 722, 726 (Mo.1962), for “[t]he influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” Quercia v. United States, 289 U.S. 466, 470, 58 S.Ct. 698, 699, 77 L.Ed. 1321 (1933). In State v. Bunton, 312 Mo. 655, 280 S.W. 1040, 1043 (1926), the Supreme Court approved the following quotations: “It must be remembered that jurors watch courts closely, and place great reliance on what a trial judge says and does. They are quick to perceive the leaning of the court. They are prompt to notice the inclination, even, of the court, and from his conduct, whether properly or not, they will almost invariably arrive at a conclusion as to what the court thinks about the case. Every remark dropped by the court, every act done by him during the progress of the trial, is the subject of comment and conclusion by jurymen. Hence it is that judges presiding at trials should be exceedingly discreet in what they say and do in the presence of a jury, lest they seem to lean towards or lend their influence to one side or the other.” “It is error for him to express, directly or indirectly, by words or by conduct, in the presence of the jurors, an opinion which discriminates against, or points to, the guilt of accused, or to make a statement which tends to discredit or prejudice accused with the jury.” In 24A C.J.S. Criminal Law § 1901, p. 993: “The reviewing court may consider it to be prejudicial error * * * where the conduct of the court is calculated to discredit, or prejudice the jury against, accused, * * *.”

The court’s remarks were doubtless made by this careful and conscientious judge in good faith, to prevent escape or the possibility of violence or disorder in the courtroom, but where prejudice has been engendered the motivation for the judge’s conduct is immaterial. “Regardless of the proper intention of the court in making such remarks, in determining their effect on the jury we must consider that the high position which a judge holds in the scheme of the trial magnifies, in the minds of the jurors, the meaning of comments by the judge, to which he himself may not attach particular importance.” Kellum v. State, 104 So.2d 99, 104. (Fla.App.1958).

The State seeks affirmance on these grounds: that the request for mistrial was not timely made; that no abuse of discretion was shown; that there was no request that the court instruct the jury to disregard the remarks; that the court had a right to take reasonably necessary precautions for the maintenance of order in the courtroom and the retention of custody of defendant during the progress of the trial; that the State’s case was so strong that no prejudice could result from the court’s remarks; that accused was not prejudiced and prejudice has not been demonstrated.

[841]*841The remarks were inherently “of such a nature as would reasonably tend to prejudice the minds of the jury against the defendant and thereby deny him a fair and impartial trial,” which is the test. State v. Ross, 371 S.W.2d 224, 228 (Mo.1963); State v. Hopkins, 500 S.W.2d 264 (Mo.App.1973); State v. Hill, 518 S.W.2d 682 (Mo.App.1975). Because the remarks were so incisive and prejudicial their effect could not be cured or eradicated by proper instruction to the jury at the time.

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State v. Wendel
532 S.W.2d 838 (Missouri Court of Appeals, 1975)

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Bluebook (online)
532 S.W.2d 838, 1975 Mo. App. LEXIS 2198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wendel-moctapp-1975.