State v. Burkhart

PER CURIAM.

Clyde Burkhart was convicted by a jury of uttering a forged instrument in violation of § 561.011(3), RSMo 1969, and a sentence of three years was imposed. On this appeal a number of points are raised but the dis-positive point is that one of the jurors was allowed to talk with a detective who was a witness for the State after the case was submitted to the jury. Other points which may recur will be noticed. Reversed and remanded.

In May, 1978, the home of James Repass was broken into and a United States Treasury check and some deposit slips from Re-pass’ checkbook were taken. Early the next morning, Repass called his bank, Boatmen’s North Hills Bank, and told Mrs. Tuck of the theft. Mrs. Tuck immediately circulated information concerning the theft to all of her tellers. A short time later, Bonnie Makris, who was a teller at a drive-in window, was presented the treasury check payable to Repass together with a deposit slip. The check had been endorsed with the name of James Repass together with his account number. The deposit slip had been made out to deposit part of the proceeds and to receive the balance in cash. Mrs. Makris had processed the transaction and had placed the cash in the bucket to be sent to the automobile when she noticed it was the Repass check described in Mrs. Tuck’s notice. Mrs. Makris immediately pushed the button to cause the bucket to return to her window and explained to the men she had made a mistake. She alerted Mrs. Tuck, and on instructions from her, Mrs. Makris informed the two men it would be necessary for them to come into the bank to complete the transaction. Thereupon the two men drove away and did not enter the bank.

Mrs. Makris positively identified Burk-hart at trial as the man who was sitting on the passenger side of the car. She stated Burkhart had passed the check and deposit slip to the driver for placement in the buck*567et to be sent to Mrs. Makris. Other evidence revealed that a palm print of Burk-hart was found on the treasury check.

Burkhart first challenges the sufficiency of the evidence. The above statement of facts constituted those facts the jury could have found beyond a reasonable doubt. On this review the evidence must be considered in the light most favorable to the State together with all favorable inferences reasonably to be drawn therefrom. State v. Rollie, 585 S.W.2d 78, 89-90[21] (Mo.App.1979).

Burkhart challenges the identification made by Mrs. Makris because she testified that she had been unable to identify Burk-hart from photographs shown to her prior to trial. This inability to recognize photographs went only to the weight and credibility of Mrs. Makris’ testimony which was for the jury to determine. State v. Bennett, 559 S.W.2d 248, 250 (Mo.App.1977).

Prom the above facts the jury could have found that Burkhart participated in the uttering of the forged instrument when he handed the check and the deposit slip to the driver of the car for presentation to the bank. Any form of affirmative participation that Burkhart aided, abetted or encouraged another in the commission of a crime is sufficient to support a conviction. Rollie, 585 S.W.2d at p. 90[22], There was sufficient evidence to support the finding of guilt by the jury.

Burkhart complains of the admission of the check, deposit slip, and a blowup photograph of the palm print found on the check because he contends these matters were part of the closed records within the meaning of § 610.105, RSMo 1978. It should first be noted that when the check and deposit slip were offered in evidence counsel for Burkhart stated that he had no objection. Any possible error in the admission of these exhibits was waived and not preserved for review because of that statement. State v. Leigh, 580 S.W.2d 536, 551[24] (Mo.App.1979). The only objection made to the introduction of the blowup photograph was that the State had failed to produce it in response to Burkhart s request for discovery. The objection that the photograph was barred under § 610.105 is beyond the objection made in the trial court, and it is well settled that an objection may not be broadened on appeal to assert grounds not presented to the trial court. State v. Lenza, 582 S.W.2d 703, 710[13, 14] (Mo.App.1979), cert. denied 444 U.S. 1021, 100 S.Ct. 678, 62 L.Ed.2d 652 (1980).

However, to set the matter to rest that these exhibits are closed records within the meaning of § 610.105, this court will consider such contention even though it considers the same to be specious. Section 610.100 provides that if a person is arrested and not charged with an offense within thirty days, all records of the arrest and of any detention or confinement incident thereto shall thereafter be closed records to all persons except the person arrested. If there is no conviction within one year after the records are closed, the records are expunged in any city or county having a population of 500,000 or more. Section 610.105 provides that if a person arrested is charged but the case is subsequently nolle pressed, dismissed, or the accused is found not guilty, official records pertaining to the case shall thereafter be closed records to all persons except the person arrested or charged. This court has no difficulty in construing § 610.105 together with § 610.-100 to conclude that the official records mentioned in § 610.105 refer to the records mentioned in § 610.100 of the arrest and any detention or confinement incident thereto. The legislature certainly was aware that a new charge may be brought after a charge has been nolle pressed. State v. Berry, 298 S.W.2d 429, 431-2[3-5] (Mo.1957). To hold that official records in § 610.105 refers to the evidence in a case which had been nolle pressed would effectively bar any future prosecution. Clearly the legislature did not intend that result. Construing § 610.100 and 610.105 together, this court concludes that the official records in § 610.105 refer only to the record of arrest and of any detention or confinement incident thereto.

*568Burkhart further contends the trial court erred in failing to quash the grand jury indictment on which he was tried because the indictment was unsupported by substantial and competent evidence. The grand jury is the judge of the sufficiency of the evidence to support its indictment. State v. Ivey, 442 S.W.2d 506, 508[2, 3] (Mo.1969). Thus the trial court was not authorized to delve into the evidence presented to the grand jury to determine if it were competent and sufficient.

Burkhart raised in his motion for new trial the misconduct of a juror as the jury was leaving the courtroom after the case had been submitted to it for deliberation. His motion was supported by the testimony of an associate attorney of Burk-hart’s counsel. This attorney testified that after the jury had left the courtroom following the submission of the case to it, she left the courtroom and observed Detective Wiersma, who had investigated the case and who had testified on behalf of the State, talking with one of the jurors. The attorney testified that shortly after she observed the two talking the assistant prosecutor who had tried the case approached the two and told the detective not to talk with the juror. The attorney testified she could not hear any part of the conversation.

In State v. Dodson, 338 Mo. 846, 92 S.W.2d 614, 615[1] (1936) the court stated:

Since the enactment of the above-named section, [now § 547.020, RSMo 1978] we have consistently ruled, in felony cases, that if the separation or misconduct of the jury took place during the progress of the trial, the verdict will be set aside, unless the state affirmatively shows that the jurors were not subject to improper influences. But if after the case has been submitted to the jury for its determination, and before a verdict has been reached, there is an opportunity that improper influence could be used on any juror, that alone will require a new trial, even though it be shown that improper influence was not exercised.

Section 547.020(2) provides the court may grant a new trial when the jury, after retiring to deliberate upon their verdict, has been guilty of any misconduct tending to prevent a fair and due consideration of the case. Section 546.240, RSMo 1978, provides in part:

When the argument is concluded, the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer who, in case of a felony, shall be sworn to keep them together in some private or convenient room or place and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed upon their verdict; and when they have agreed he shall return them into court, or when ordered by the court.

Dodson considered the statutes in force which are the same as §§ 546.240 and 547.-020 when it announced the rule above quoted. Dodson draws a distinction between events which occur during the course of the trial and those which occur after the case has been submitted to the jury for its determination and before a verdict has been reached. The contact between Detective Wiersma and the juror took place after the case had been submitted to the jury for its determination and prior to verdict. Under the rule followed in Dodson if there is an opportunity that improper influence could be used on a juror, that alone will require a new trial even though improper influence was not shown or exercised. The rule in Dodson has been restated in State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 806[8] (1953) and State v. Edmondson, 461 S.W.2d 713, 723 (Mo.1971).

The State relies on cases in which the juror misconduct occurred during the course of the trial. Under Dodson the rule to be followed in this case is that relating to misconduct which occurred after submission of the case to the jury and before the verdict was returned. Under Dodson the juror misconduct in talking with a State’s witness requires reversal even though no improper influence was shown to have been exercised. The other matters raised on this appeal need not recur on a retrial, but, in *569any event, the parties are advised as to those points and will have the benefit of the briefs.

The judgment is reversed and the cause is remanded for a new trial.