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August 23, 1983


From the Circuit Court of Jackson County; Criminal Appeal; Judge Alvin C. Randall.

Motion for Rehearing Overruled, Transfer Denied November 15, 1983. Application Denied December 20, 1983.

Before Clark, P.j., Dixon, Nugent, JJ.

The opinion of the court was delivered by: Dixon

Defendant appeals from his conviction of second degree murder. The jury assessed punishment at life imprisonment. Two points of error are briefed by defendant's counsel; seven more are raised in defendant's pro se briefs.

A witness Finley saw the defendant shoot the victim Hawkins with a shotgun. The shot was fired by defendant while he was riding in the back seat of a blue station wagon driving past the victim Hawkins' house where Hawkins was seated on a porch. The station wagon struck two vehicles as it was driven away. A station wagon found abandoned six blocks from the scene was connected with the collisions by paint samples. A spent shotgun shell in the rear seat of the station wagon matched spent shotgun shells found at the scene. All were fired from the same gun. There is no challenge to the sufficiency of this evidence to support the conviction.

The first issue briefed by counsel questions security measures taken by the trial court. On the morning of the fourth day of the five-day trial, the Judge ordered that spectators be searched before being allowed into the courtroom. A metal detector was set up outside a "rear" door of the courtroom and access to the trial was confined to this door. Defendant's counsel objected to the procedure and asked for a mistrial on the grounds that it deprived defendant of his presumption of innocence and that defendant was denied his right to a public trial. This latter contention stems from the fact that no sign was posted on the main doors to the courtroom, which were locked so as to control entry through the rear door, advising the public how to get in. Defendant cites Globe Newspaper Co. v. Superior Court, etc., 102 S.Ct. 2613, (1982), in support of this point. Globe involved a state statute that required mandatory closure of trials during the testimony of minor victims of sex-offense crimes. Globe is inapposite to the instant case. There is nothing in the record to indicate anyone was denied access to the trial upon encountering the locked door.

The claim that the screening process stripped defendant of the physical indicia of innocence is likewise without merit. Defense counsel did not take exception to the necessity for the screening procedure itself. The precaution was ordered after a colloquy in chambers among the Judge, defense counsel, prosecuting attorney, and a state's witness named Finlay. Finley had testified earlier in the trial that he saw defendant shoot Derwin Hawkins, the victim, from the back seat of a car as Hawkins sat on some steps in front of a house. Finley told the Judge that following Finley's eyewitness testimony, several people came to his home and threatened to harm him if he did not change his testimony. Finley also claimed that defendant shot him prior to the trial and that a case was pending against defendant for the murder of another eyewitness to the Hawkins murder. In addition to this claim of witness intimidation, the court noted there had been an inordinate amount of coming and going by the spectators during the trial itself. All were in agreement that security precautions were appropriate under the circumstances; defendant's objection was that the jury was permitted to observe the metal detection search procedure when the panel filed into the jury box.

The screening procedure was conducted in as unobtrusive a manner as practicable. The metal detector was set up outside the courtroom at a door "a long ways from where the jury" was located. The jury did not enter through that door. The door was closed as soon as the jury was seated. In State v. Davis, 547 S.W.2d 482 (Mo. App. 1976), the jury was exposed to a dozen uniformed police officers in the lot where they boarded a bus, and in the corridors leading to the jury room. Further, there were metal detectors outside the courtroom. The security precautions were taken because the trial Judge had heard of threats to both kill and free the accused. In upholding the court's refusal to grant a mistrial the court of appeals stated, "In taking security precautions care should be exercised to not create an atmosphere prejudicial to the accused, but it is a balancing of the circumstances, and though unnecessary measures should be avoided, such measures should be taken as appear to be reasonably necessary for the maintenance of order during the trial . . ." Davis, 547 S.W.2d at 489. The court's action in the case at bar was reasonable and great care was taken not to expose the jury unnecessarily to the screening procedure.

Defendant cites United States v. Jackson, 549 F.2d 517 (8th Cir.) cert. denied, 430 U.S. 985 1977), and United States v. Gambina, 564 F.2d 22 (8th Cir. 1977), for the proposition that any jury exposure to a metal detection screening procedure would "strip from the defendant the physical indicia of innocence." Neither of those cases can be read to make that assertion. There is no mention of the use of any electronic metal detecting device in Gambina. In Jackson, the court upheld the presence of several nonuniformed federal marshals inside and outside the courtroom and the use of a metal detecting device to screen spectators as neither undue nor beyond the trial court's discretion. Precautions taken by the trial court in the case at bar were similar to Jackson in that "the jury was carefully shielded from contact with or awareness of the security measures . . ." 549 F.2d at 527. Any brief exposure to the sight or sound of the metal detector outside the courtroom through a door a "long way" from the jury box that lasted only as long as it took the jury to file in would not deprive defendant of his presumption of innocence.

The second point covered in defense counsel's brief concerns the following remarks made by the prosecuting attorney during closing argument:

Now, at the outset, before I talk to you about the evidence, I want to cover one other aspect. You know, you are familiar with the problems. You read them in the paper, about witnesses, where they come from, how they are intimated, what happens -

At this point the defendant objected. In a Discussion at the bench, the Judge sustained the objection on the ground there was no evidence in the case of witness intimidation. Defense counsel then asked for a mistrial, arguing that the security precautions observed the preceding day combined with the prosecutor's comments would permit the jury to infer that the defendant had intimidated witnesses. The Judge denied the motion for mistrial, admonished the prosecutor to confine his argument to the evidence in the case, and made the following remarks to the jury:

The objection by Mr. Simon is sustained. The jury is instructed to disregard the last statement by Mr. Bellemere, and Mr. Bellemere is advised that what occurred or what did occur in other cases is not material to this case.

The purpose of final argument is to discuss the facts in the case that's pending and not other cases. So ...

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