STATE OF MISSOURI, Respondent, v. MARK C. BRANDOLESE, Appellant.
No. SC97697
SUPREME COURT OF MISSOURI en banc
Opinion issued June 30, 2020
The Honorable Robert L. Koffman, Judge
APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY
Factual and Procedural History
Brandolese and C.E. resided together as roommates. In March 2016, a neighbor called the police after C.E. appeared at the neighbor‘s home with blood on his face. C.E. repeatedly told the neighbor Brandolese hit him in the head with a cane.
Officer Todd Nappe responded to the neighbor‘s home and spoke to C.E., who appeared intoxicated. C.E. stated Brandolese cut him, and his injuries were photographed. Officer Nappe also observed a cut across C.E.‘s chest. Officer Nappe followed a trail of blood from the neighbor‘s home to the apartment where Brandolese and C.E. resided.
When Officer Nappe spoke to Brandolese about the incident, Brandolese told Officer Nappe that, while he was asleep in a recliner, C.E. approached him and punched him in the face. Brandolese woke up, grabbed his walking cane, and hit C.E. with it. Brandolese stated the altercation moved into the bathroom, at which point Brandolese pushed C.E. into a vanity mirror, causing it to break. Brandolese admitted to Officer Nappe he “slashed” C.
Brandolese was arrested and charged with first-degree domestic assault, armed criminal action, and unlawful use of a weapon.2 At trial, C.E. did not testify. Brandolese asserted self-defense but submitted outdated and improper self-defense instructions to the court. The circuit court submitted to the jury a self-defense instruction tendered by the State that was also an outdated version of the pattern instruction. The jury returned a verdict finding Brandolese guilty of a lesser-included offense, second-degree domestic assault, and armed criminal action. The circuit court sentenced Brandolese as a prior and persistent offender to concurrent terms of 15 years’ imprisonment for domestic assault and 10 years’ imprisonment for armed criminal action. Brandolese appeals.3
I. Juror Disqualification under Section 494.470.14
In his first point, Brandolese argues the circuit court plainly erred in failing to strike for cause Juror No. 16 because she was the sister of an assistant prosecuting attorney who participated in Brandolese‘s case. Brandolese claims Juror No. 16 was statutorily disqualified from serving on the
All parties agree that Juror No. 16 is related to Robert Anthony Farkas, who served as an assistant prosecuting attorney in Pettis County where Brandolese was convicted. Farkas signed the complaint charging Brandolese. Docket entries indicate Farkas appeared on the State‘s behalf in Brandolese‘s case on March 22, April 12, and May 17, 2016. On June 1, 2016, a grand jury indicted Brandolese. Docket entries do not contain any reference to Farkas participating in the matter after Brandolese‘s indictment was returned, and Farkas did not participate in Brandolese‘s trial in May 2017.
Phillip Sawyer, Pettis County‘s elected prosecuting attorney, represented the State at Brandolese‘s trial. During jury selection, Juror No. 16 responded to a question posed by defense counsel about being a crime victim. After Juror No. 16 gave her response to the question, the following exchange took place:
[Defense Counsel]: I notice your last name. Are you a relative of Tony [F]arkas?
Juror 16: Yes. That‘s my brother.
[Defense Counsel]: So your brother is a prosecutor?
Juror 16: Yeah.
Neither party questioned Juror No. 16 further about her relationship with her brother, prior knowledge of the case due to the relationship, or whether the relationship would affect her ability to be fair and impartial.
While asserting challenges for cause, Brandolese made a contemporaneous objection to Juror No. 16 being seated on the jury because she was Farkas’ sister, but he did not argue or claim Juror No. 16 was statutorily disqualified as authority for striking her. The discussion was limited to Juror‘s No. 16‘s ability to be fair and impartial and included the following exchange:
The Court: Strikes for the defense?
[Defense Counsel]: Farkas’ sister, Number 16, I think she should go for cause.
The Court: Again, the question wasn‘t asked –
[The State]: There was no question.
The Court: -- to delve into why she couldn‘t be fair. It just -- all the question was, she‘s Tony Farkas’ sister, nothing on why she can‘t be fair. I‘m not taking that one for cause.
[Defense Counsel]: Even though her beloved brother works for the prosecutor.
The Court: That‘s great.
[Defense Counsel]: Okay.
The Court: I don‘t even know if it‘s a beloved brother. I didn‘t hear any evidence to that, either. The questions that would prejudice her have not been asked. She‘s giving you something that causes you to strike her for preemptory challenge, I would agree, but for cause, I haven‘t heard it. Overruled.
Defense counsel did not use a peremptory strike to remove Juror No. 16, and she served on the jury. Brandolese‘s claim of error on this issue was not included in his motion for new trial and at no time during the proceedings before this appeal did Brandolese allege Juror No. 16 was statutorily disqualified from serving on the jury pursuant to
Standard of Review
Generally, this Court does not review unpreserved claims of error. State v. Cella, 32 S.W.3d 114, 117 (Mo. banc 2000).
Analysis
This Court, however, need not decide whether the circuit court‘s failure to sustain Brandolese‘s challenge to strike Juror No. 16 for cause violated
To be sure, a juror who cannot be fair and impartial should be stricken for
Moreover, Brandolese has not shown or even alleged that Juror No. 16 was aware of Farkas’ participation in Brandolese‘s pretrial proceedings. Juror No. 16‘s only relevant statement responded to a question whether she was related to Farkas. The question did not say or suggest Farkas participated in the prosecution of the case at any point. The defense asked Juror No. 16 only to clarify that her brother is a prosecutor. Brandolese and the dissenting opinion claim
Chandler, 314 S.W.2d at 900. While Juror No. 16 knew of her relationship to Farkas, the record does not show she knew of Farkas’ involvement in the case. As this Court has explained, a juror cannot be prejudiced by a fact unknown to her.
Brandolese argues and concedes that, but for her brother‘s participation in his case, Juror No. 16 would have been eligible to serve as a juror pursuant to
Nothing in the record before this Court establishes Juror No. 16 caused an injustice to Brandolese or prejudiced him. Brandolese does not allege and presents no evidence of unfairness or impartiality from the juror in question. In the complete absence of evidence showing bias or partisanship—or even evidence showing knowledge of the allegedly disqualifying relationship—Brandolese cannot establish manifest injustice.
The dissenting opinion recognizes the alleged violation of
As previously stated,
The dissenting opinion suggests this Court‘s plain error analysis does not apply if an unpreserved statutory or constitutional violation is serious enough because the alleged error, in and of itself, establishes manifest injustice. This assertion has no basis in
Furthermore, this Court previously rejected the argument that constitutional violations are subject to a different plain error analysis in State v. Howard, 540 S.W.2d 86 (Mo. banc 1976). In Howard, the defendant sought plain error review after the circuit court commented on the defendant‘s failure to testify during his jury trial. Id. at 87. On appeal, it was suggested that Howard was automatically entitled to plain error relief without establishing manifest injustice because of the egregious federal constitutional violation. Id. This Court rightly refused this invitation, holding “[e]ven a federal constitutional error may be considered harmless. 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.” Id. (internal citation omitted). This Court then utilized plain error analysis to determine a manifest injustice occurred at Howard‘s trial. Id. at 87-88. Therefore, Howard stands for the proposition that all errors—whether statutory, constitutional,
structural, or based in some other source—are subject to the same treatment under this Court‘s plain error framework.
To be sure, however, Brandolese suffered no constitutional infirmity when Juror No. 16 served on the jury even if she was statutorily disqualified. The
still bears the burden of establishing manifest injustice if an unqualified juror serves on a jury. Oates, 540 S.W.3d at 863. While an individual who meets the criteria for disqualification under
II. Instructional Errors
In Points II, III, and IV, Brandolese alleges the circuit court erred instructing the jury on self-defense and the definition of knowingly as used in a separate instruction. These claims of error, however, were not raised with the circuit court. The self-defense instruction the circuit court gave at the State‘s request was based on an outdated version of the pattern instruction. While Brandolese objected to giving this instruction, he requested and proposed two separate self-defense instructions that, likewise, were outdated and improper. During jury deliberations, the jury submitted a written question to the court asking for a definition of “knowingly” as used in the second-degree domestic assault verdict director. Without objection from Brandolese, the circuit court responded to the jury‘s question with the following instruction: “You are bound by the law as it has been presented to you. This is the only answer the Court is allowed to give you.”
Point II alleges the circuit court erred in not modifying sua sponte the self-defense instruction submitted to the jury to remove initial aggressor language or, in the alternative, to include a definition of the term “initial aggressor.” Point III alleges the circuit court erred in not modifying sua sponte the same self-defense instruction to include the option of non-deadly force as well as to include proper language and guidance regarding permissible use of deadly force. In Point IV, Brandolese alleges the circuit court erred in failing to define the term “knowingly” following the written question from the deliberating jury. Brandolese requests plain error review of all three allegations of instructional error.
“Instructional error requires reversal when the error is ‘so prejudicial that it deprived the defendant of a fair trial.‘” State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc 2017) (quoting State v. Nash, 339 S.W.3d 500, 511-12 (Mo. banc 2011)); see also State v. Forrest, 183 S.W.3d 218, 229 (Mo. banc 2006). “All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear.” State v. Baumruk, 280 S.W.3d 600, 608 (Mo. banc 2009) (internal quotations and alterations omitted). But even if the instructional error is evident, obvious and clear, the defendant must “demonstrate that the trial court so misdirected or failed to instruct the jury as to cause manifest injustice or a miscarriage of justice.” State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007). Moreover, “plain error review is discretionary,” and “this Court will not use plain error to impose a sua sponte duty on the trial court to correct Defendant‘s invited errors.” State v. Bolton, 371 S.W.3d 802, 806 (Mo. banc 2012).
Analysis
Point II
Brandolese alleges the circuit court plainly erred in not modifying sua sponte the State‘s non-compliant jury instruction either to remove “initial aggressor” language or to provide a definition of “initial aggressor.” He supposes the jury‘s verdict would have differed without the initial aggressor language, or if the court had provided a definition of “initial aggressor.”
Because Brandolese requested the circuit court commit error by submitting improper and non-compliant self-defense instructions, he is not entitled to plain error review of this matter. Failure to submit a mandatory instruction is reversible error under plain error review when the instruction is requested by the defendant and refused by the circuit court. State v. Westfall, 75 S.W.3d 278, 281 n.9 (Mo. banc 2002). However, a party invites error by submitting a patently incorrect instruction. “It is axiomatic that a defendant may not take advantage of self-invited error or error of his own making.” State v. Mayes, 63 S.W.3d 615, 632 n.6 (Mo. banc 2001) (alteration omitted). In State v. Bolden, this Court declined to conduct plain error review and impose a sua sponte duty to modify a self-defense jury instruction when the defendant invited the error by agreeing to the instruction. 371 S.W.3d at 805-06. Brandolese did not agree to the self-defense instruction submitted by the circuit court, but he invited error by requesting and proposing outdated and improper self-defense instructions. While the case here can be distinguished from Bolden, this Court similarly should “not use plain error to impose a sua sponte duty on the trial court” to instruct the jury properly when the very instructions Brandolese requested the circuit court submit invited and would have caused the circuit court to commit instructional error. Id. at 806.
Even if this Court were to exercise its discretion and conduct plain error review, it cannot find manifest injustice—let alone an “evident, obvious, and clear” error—for failing to modify an instruction that does not erroneously state the law. See Baumruk, 280 S.W.3d at 607-08. The Notes on Use for the approved pattern self-defense instruction provide the initial-aggressor language should be excluded only if “there is no evidence that the defendant was the initial aggressor or provoked the incident.” See
Point III
In his third point, Brandolese alleges the circuit court erred in not sua sponte modifying the self-defense instruction as it pertains to the use of deadly force. Brandolese argues the instruction submitted to the jury failed to reflect that the issue of whether he used deadly force was in question under the facts of the case. He contends the term “non-deadly” should have been included in the instruction; he also complains of various other non-substantive deviations from the pattern instruction. Notably, the instructions Brandolese proposed and submitted to the circuit court also deviated from the pattern instruction with respect to these issues.
Brandolese fails again to make the required showing warranting relief under plain error review. As in Bolden, this Court does not wish to impose a duty on the circuit court to modify sua sponte a jury instruction when the instruction Brandolese submitted deviated from the pattern instruction and invited the court to err in the manner claimed on appeal. Bolden, 371 S.W.3d at 806.
In addition, the submitted instruction did not erroneously state the law. The instruction omitted the term “non-deadly” and other language from the approved patterned instruction when describing the use of force in self-defense but accurately explained the facts the jury must find “for a person lawfully to use force in self-defense.”
Point IV
In his fourth point, Brandolese alleges the circuit court plainly erred in its response to the deliberating jury‘s request for a definition of “knowingly” as used in the verdict director for second-degree domestic assault. This verdict director required the jury to find Brandolese “knowingly caused physical injury to” C.E. The instruction did not, however, define “knowingly.” The jury asked the court for a definition, noting the verdict director for the lesser-included offense of third-degree domestic assault included a definition of “recklessly.” After conferring with the parties, the court answered, “You are bound by the law as it has been presented to you. This is the only answer the Court is allowed to give you.”
“The response to a jury question is within the sound discretion of the trial court and the practice of exchanging communications between the judge and jury is not commended.” State v. Guinn, 58 S.W.3d 538, 548 (Mo. App. 2001) (citing State v. Taylor, 408 S.W.2d 8, 10 (Mo. 1966)). “Responses that simply refer the jury to the proper instructions already given are not improper.” State v. Johnston, 957 S.W.2d 734, 752 (Mo. banc 1997). The Notes on Use for the approved pattern instruction for second-degree domestic assault provides the term “knowingly” as used in the instruction ”may be defined by the court on its own motion and must be defined upon written request in proper form by the state or by the defendant.”
Neither party requested the term be defined before the instructions were read to the jury.10 Therefore, the verdict director was in proper form when read to the jury. When jury instructions are correct, a court may respond to a jury‘s question by instructing the jury to be guided by those instructions. State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998).
Brandolese fails to show an error that is evident, obvious, and clear or a manifest injustice from the circuit court‘s response. Because the verdict director was correct, the court‘s response to the jury‘s question was not improper. Furthermore, Brandolese only speculates that the definition of “knowingly” would have changed the outcome of the jury‘s deliberation in his favor. This speculation does not give rise to manifest injustice. See Goodwin, 43 S.W.3d at 820. Therefore, the circuit court‘s response to the jury‘s question does not warrant relief under plain error review.
III. Exclusion of Evidence
Brandolese contends the circuit court abused its discretion in excluding the testimony of a defense witness about the victim, C.E.‘s, “reputation” for violence. At trial, Brandolese‘s counsel informed the circuit court he intended to call another roommate of C.E. as a witness. The witness would testify that, on a specific occasion after the altercation with Brandolese, C.E. drank heavily and acted violently toward the witness. Brandolese argued this evidence would support his claim of self-defense because the witness would show C.E.‘s “modus operandi” of drunkenness and violence. Outside the presence of the
jury, the witness testified in an offer of proof that he lived with C.E. for about a month and a half after C.E. was assaulted by Brandolese. The witness recounted that he once tried to pour out C.E.s liquor and C.E. reacted by attacking the witness. The prosecutor objected to witnesss proffered testimony, and the circuit court excluded the testimony.
Standard of Review
The circuit court has broad discretion in admitting evidence at trial, and error will be found only for a clear abuse of this discretion. State v. Simmons, 955 S.W.2d 729, 737 (Mo. banc 1997). This Court will find a circuit court abused its discretion only when a ruling is
clearly against the logic and circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
State v. Brown, 939 S.W.2d 882, 883-84 (Mo. banc 1997) (alteration omitted). This Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived
Analysis
[T]he trial court may permit a defendant to introduce evidence of the victims prior specific acts of violence of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime with which the defendant is charged. State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991) (emphasis added). In addition, evidence of a victims reputation for turbulence and violence is admissible as relevant to show who was the aggressor and whether a reasonable apprehension of danger existed. State v. Gonzales, 153 S.W.3d 311, 313 (Mo. banc 2005) (quoting State v. Buckles, 636 S.W.2d 914, 923 (Mo. banc 1982)) (emphasis added). However, reputation evidence must be through general reputation testimony, not specific acts of violence. Id. (quoting Buckles, 636 S.W.2d at 923). Additionally, the defendant must show he or she knew of the victims reputation for turbulence and violence. State v. Rutter, 93 S.W.3d 714, 731 (Mo. banc 2002).
Here, the witnesss testimony did not offer general reputation evidence. Instead, the testimony offered pertained only to a specific act of violence that took place after the assault. Whether C.E. committed a specific act of violence after the altercation in this case is not relevant to the question of C.E.s reputation for violence or Brandoleses reasonable apprehension of harm during the altercation. Under Rutter, a specific act of violence would be admissible only if offered to demonstrate a basis for Brandolese to fear C.E. The incident in the witnesss testimony that took place after the charged assault, however, could not possibly form the basis for Brandoleses fear of C.E. Furthermore, because the proffered testimony was not general reputation evidence, it could not be admitted to support a theory that C.E. was the initial aggressor. See Gonzales, 153 S.W.3d at 313.
Because the witnesss testimony described only one specific act by C.E. after the charged incident in this case had occurred, the circuit court acted within its discretion in excluding the witnesss testimony.
IV. Hearsay
Brandolese argues the circuit court committed plain error in allowing hearsay evidence that violated his Confrontation Clause rights. Brandolese complains of several incidents involving supposed hearsay testimony, but these claims of error were not raised or made to the circuit court in the motion for new trial and, therefore, are not preserved for appellate review.
Standard of Review
Unpreserved issues can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error. In re Care & Treatment of Braddy, 559 S.W.3d 905, 909 (Mo. banc 2018) (internal quotations omitted).11
Analysis
A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value. State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006). Hearsay statements generally are inadmissible. State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). Additionally, a testimonial out-of-court statement is not admissible against the defendant under the Confrontation Clause unless the requirements of Crawford v. Washington, 541 U.S. 36 (2004), are met. State v. Kemp, 212 S.W.3d 135, 147-48 (Mo. banc 2007).12
The first incident for which Brandolese alleges error involves the neighbor witnesss volunteered statement that C.E. told her Brandolese repeatedly hit him with a cane. The following exchange took place during the neighbors testimony:
Q. Okay. When you called 911, …what did you tell them; what were you aware of?
A. …[The victim] kept telling me over and over and over that…[Brandolese] hit him in the head with a cane.
[Defense Counsel]: Objection.
The Court: Whats your objection?
[Defense Counsel]: Hearsay, and thats not hearsay.
[The Prosecutor]: Excited utterance.
[Defense Counsel]: Its not an excited utterance.
The Court: Are you objecting or not?
[Defense Counsel]: I am objecting.
[The Prosecutor]: Excited utterance. He showed up at her house and told her what was going on and to call 911.
[Defense Counsel]: I think you should—
The Court: I think Im going to sustain that.
The circuit court sustained the objection on which Brandolese bases his claim of error. Therefore, no error—let alone evident, obvious, and clear error—exists.
Later, the circuit court overruled a hearsay objection by Brandolese during Officer Nappes testimony. The prosecuting attorney asked whether Officer Nappe developed an idea of what happened at the scene:
Q. Did you develop some form of an investigation or some form of an idea what transpired by talking to [the victim]?
A. Yes.
[Defense Counsel]: Objection, hearsay.
The circuit court overruled this objection. Brandolese suggests this was an error that is evident, obvious, and clear. However, the question does not ask for hearsay, nor did the officers response repeat an out-of-court statement. Officer Nappe testified only that he formed an idea of what had taken place after he spoke with C.E. Therefore, Brandolese fails to establish any error in the circuit courts ruling, let alone an evident, obvious, and clear error, nor does he make a showing of manifest injustice.
Finally, the circuit court overruled a hearsay objection by Brandolese when the State asked Officer Nappe how he knew C.E. was cut by a knife and Officer Nappe said C.E. told him Brandolese slashed him with a knife. Immediately following this question, the State asked Officer Nappe if he spoke with Brandolese about the knife. Officer Nappe responded he had and testified Brandolese said he had sliced the victim with a knife. Brandolese did not object to this portion of Officer Nappes testimony.
The improper admission of hearsay evidence requires reversal [only] if such evidence is prejudicial. Saint Louis Univ. v. Geary, 321 S.W.3d 282, 291 (Mo. banc 2009). Confrontation Clause violations are subject to the harmless error test found in Chapman v. California, 386 U.S. 18, 24 (1967). State v. March, 216 S.W.3d 663, 667 (Mo. banc 2007). A complaining party is not entitled to assert prejudice if the challenged evidence is cumulative to other related admitted evidence. Saint Louis Univ., 321 S.W.3d at 292. Cumulative evidence is additional evidence that reiterates the same point. Id. Evidence challenged on constitutional grounds that is cumulative of other, properly admitted evidence cannot have contributed to a defendants conviction and so is harmless beyond a reasonable doubt. State v. Davidson, 242 S.W.3d 409, 418 (Mo. App. 2007); see also State v. Bell, 274 S.W.3d 592, 595-96 (Mo. App. 2009) (finding admitting an examiners testimony about a doctors opinions was harmless error because the evidence was cumulative). Plain error review requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error. State v. Perry, 548 S.W.3d 292, 300 (Mo. banc 2018) (quoting State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011)).
In light of subsequent testimony regarding Brandoleses own statement to Officer Nappe, whether the circuit court may have erred in allowing the officer to testify regarding C.E.s statement in this instance is immaterial. Brandolese cannot show that the error was outcome-determinative and resulted in manifest injustice if later testimony demonstrated the same fact. See Saint Louis Univ., 321 S.W.3d at 292. For this reason, Brandolese is not entitled to relief due to the circuit court overruling his objection to the testimony.
Conclusion
The circuit courts judgment is affirmed.
W. Brent Powell, Judge
Wilson and Fischer, JJ., concur; Russell, J., concurs in part and in result and concurs in part in dissenting opinion filed; Draper, C.J., dissents in separate opinion filed; Breckenridge and Stith, JJ., concur in opinion of Draper, C.J.
STATE OF MISSOURI, Respondent, v. MARK C. BRANDOLESE, Appellant.
No. SC97697
SUPREME COURT OF MISSOURI en banc
OPINION CONCURRING IN PART AND IN RESULT AND CONCURRING IN PART IN DISSENTING OPINION
I agree with the principal opinions analysis concluding that Mark Brandolese did not meet his burden establishing manifest injustice and that any violation of section 494.470.11 did not constitute plain error. I respectfully disagree, however, with the principal opinions failure to find a violation of section 494.470.1. I agree with the dissenting opinions analysis concluding that, for purposes of section 494.470.1, the legislature intended the meaning of prosecuting attorney to encompass assistant prosecuting attorneys, and, as a result, Juror No. 16 was disqualified from serving on Brandoleses jury under section 494.470.1. But, for the reasons indicated in the principal opinion, Brandolese failed to meet his burden demonstrating manifest injustice or prejudice, and the circuit courts violation of section 494.470.1 did not constitute plain error. Accordingly, I would affirm the circuit courts judgment.
Mary R. Russell, Judge
STATE OF MISSOURI, Respondent, v. MARK C. BRANDOLESE, Appellant.
No. SC97697
SUPREME COURT OF MISSOURI en banc
DISSENTING OPINION
The principal opinions holding, which condones kin of the assistant prosecuting attorney sitting in judgment on a case in which the assistant prosecuting attorney actively participated in, surely has legal scholar Sir William Blackstone spinning in his grave. Not only is this holding unsupported by centuries-old precedent, Missouri caselaw, or a proper reading of
Juror Disqualification under Section 494.470
In his first point, Mark C. Brandolese (hereinafter, Brandolese) argues the circuit court plainly erred in failing to strike Juror No. 16 for cause because she was the sister of a Pettis County assistant prosecuting attorney, Robert Anthony Farkas (hereinafter, Farkas), who participated in Brandoleses case. Brandolese claims the circuit courts ruling violated his right to a fair and impartial jury and
Standard of Review
When the defendant is aware of facts which would sustain a challenge for cause, he [or she] must present [the] challenge during the voir dire examination or prior to the swearing of the jury, otherwise, the point is waived. State v. Marr, 499 S.W.3d 367, 376 (Mo. App. W.D. 2016) (quoting State v. Goble, 946 S.W.2d 16, 18 (Mo. App. S.D. 1997)). The rule requiring contemporaneous objections to the qualifications of jurors is well founded. It serves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction attack on the jury selection process. State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991).
While asserting challenges for cause, Brandolese made a contemporary objection to Juror No. 16 being seated on the jury because she was Farkas sister and characterized Farkas as Juror No. 16s beloved brother [who] works for the prosecutor. Although Brandolese did not cite
This Court always has the discretion to engage in plain error review of issues concerning substantial rights, especially constitutional rights …. State v. Rice, 573 S.W.3d 53, 73 (Mo. banc 2019) (quoting State v. Brooks, 304 S.W.3d 130, 136 n.2 (Mo. banc 2010)). In applying plain error review, the principal opinion reframes the actual legal issue Brandolese presents and scarcely addresses
The Right to an Impartial Jury
The Sixth Amendment guarantees every criminal defendant the right to a trial by an impartial jury.
Under our system of jurisprudence there is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant shall be accorded a fair trial before a jury of his countrymen, who enter upon the trial totally disinterested and wholly unprejudiced.
To qualify as a juror, the venireperson must be able to enter upon that service with an open mind, free from bias and prejudice. State v. Ervin, 835 S.W.2d 905, 915 (Mo. banc 1992). A defendant is entitled to a full panel of qualified jurors before he [or she] makes peremptory challenges …. State v. Lovell, 506 S.W.2d 441, 443 (Mo. banc 1974). [E]rrors in the exclusion of potential jurors should always be on the side of caution. State v. Walton, 796 S.W.2d 374, 381 (Mo. banc 1990) (alterations in original) (quoting State v. Draper, 675 S.W.2d 863, 865 (Mo. banc 1984)). Failure to sustain a meritorious challenge for cause to excuse a biased or prejudiced venireperson constitutes prejudicial error. State v. Schnick, 819 S.W.2d 330, 333 (Mo. banc 1991).
Before statehood and up to 1835 [Missouri] had only one statute dealing with the competency of jurors. State v. Thomas, 174 S.W.2d 337, 339 (Mo. 1943). The statute said nothing about any disqualification of jurors because of kinship between them and the litigants. Id. In 1835, the legislature adopted Missouris first criminal code, which contained the first statute to address juror competence in criminal cases:
When any indictment alleges an offence [sic] against the person or property of another, neither the injured party, or any person of kin to him, shall be a competent juror on the trial of such indictment, nor shall any person of kin to the prosecutor or defendant, in any case, serve as a juror on the trial thereof.
Section 494.470
The principal opinion declines to address this issue or Brandoleses arguments that his fundamental right to a fair and impartial jury was violated. Instead, the principal opinion focuses on whether Brandolese could demonstrate Juror No. 16s participation resulted in a manifest injustice. The principal opinions analysis puts the proverbial cart before the horse. The simple fact Juror No. 16 was allowed to participate as a member of the jury, and whatever influence she may have brought to bear during deliberations, is the error, not whether the jurys verdict was manifestly unjust.
Construing
The legislature needs to delineate between elected and assistant prosecuting attorneys when conferring these duties, powers, and compensation. However, this delineation is not intended to employ
Moreover, limiting the meaning of prosecuting attorney to the elected prosecuting attorney would render the words in the same cause meaningless because the elected prosecuting attorney participates in every criminal cause by virtue of his or her charging power. It cannot be stated strongly enough that, under this faulty logic, had Farkas remained the assistant prosecuting attorney assigned to try Brandoleses case when it went to trial, the state believes Juror No. 16 would be qualified to serve on the jury despite her kinship with Farkas because Farkas was not the elected prosecuting attorney. Construing the statute in this manner defeats the legislatures purpose in enacting
Not only should a jury which hears a criminal case and which has great power be impartial in fact, but also if we are to hold true our ideals and retain the confidence of the community, the jury should also give every outward appearance of impartiality.
State v. Carter, 544 S.W.2d 334, 338 (Mo. App. St. L. Dist. 1976) (quoting State v. Holliman, 529 S.W.2d 932, 942 (Mo. App. St. L. Dist. 1975)).
The fair administration of justice and the avoidance of impropriety should compel this Court to find the plain meaning of prosecuting attorney in the same cause includes the elected prosecuting attorney by virtue of his or her power to commence the prosecution—in this case, Phillip Sawyers role in conducting the trial as the elected prosecuting attorney—and assistant prosecuting attorneys who otherwise participate in the same cause. This reading gives effect to all the words within the statute without adding any additional language to qualify prosecuting attorney. It effectuates the purpose of the statute by prohibiting kin of these participants who have an interest in the outcome of the litigation from serving as jurors. Most importantly, it safeguards a defendants constitutional right to an impartial jury and avoids even the appearance of impropriety.
By construing the entire statute, including the words in the same cause, this Court would avoid the states other concern that Brandolese wishes to read
Inquiry into Bias, Prejudice, or Partiality
To support its finding Brandolese did not demonstrate a manifest injustice occurred, the principal opinion essentially finds that, even if
It is inconsequential the record contains no evidence of Brandolese questioning Juror No. 16 about any potential bias because
The common law theory of such principal challenges was that the fact of relationship spoke for itself without proof of actual prejudice, for that as Lord Coke put it, the law presumeth that one kinsman doth favor another before a stranger; or, as one decision says, because blood is thicker than water.
Id. at 341-42 (internal footnote omitted). Thomas cited Sir William Blackstones commentary that jurors could be challenged for bias or partiality, and [a] principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or [favor]: as, that a juror is of kin to either party within the ninth degree …. 3 Sir William Blackstone, Commentaries on the Laws of England *363 (Lewis Ed. 1767). Bias has been implied to relatives of trial participants for centuries. Notably, in United States v. Burr, 25 F.Cas. 49, 50 (D. Va. 1807), Chief Justice John Marshall asked, Why is it that the most distant relative of a party cannot serve upon his jury? Chief Justice Marshall concluded the law suspects the relative of partiality; suspects his mind to be under a bias, which will prevent his fairly hearing and fairly deciding on the testimony which may be offered to him. Id. Hence, [i]t is a universal rule that the relationship of a juror to one of the parties in a lawsuit disqualifies the juror. The question of whether he [or she] is biased or prejudiced is of no concern. State v. Miller, 56 S.W.2d 92, 96 (Mo. 1932) (emphasis added); see also State v. Chandler, 314 S.W.2d 897, 900 (Mo. 1958) (In a proper case on timely objection a juror within the prohibited relationship should be excluded on the ground of presumptive prejudice which is the basis of the prohibitory statute.). Accordingly, the presumptive prejudice or bias of a juror who is kin to a prosecuting attorney does not turn on whether the defendant preserved the issue for appeal. The prejudice is inherent from the kinship between the juror and the prosecuting attorney, which automatically disqualifies the juror from serving in the same cause because it violates a defendants substantive, constitutional right to a fair and impartial jury.
This general principle has been recognized when applying Sixth Amendment protections to the defendants right to an impartial jury as well:
[I]n certain instances a hearing [or questioning] may be inadequate for uncovering a jurors biases, leaving serious question whether the trial court had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice. While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include … that the juror is a close relative of one of the participants in the trial ….
Smith v. Phillips, 455 U.S. 209, 222, 102 S. Ct. 940, 948, 71 L. Ed. 2d 78 (1982) (OConnor, J., concurring) (emphasis added); see also Dyer v. Calderon, 151 F.3d 970, 984-85 (9th Cir. 1998) (discussing this
The principal opinion wishes to place a prosecuting attorneys kin on equal footing with mere acquaintances or jurors who have no familial connection to any party, despite the statutes clear, unequivocal intent to disqualify kinship jurors from being seated. This position is not supported by caselaw, especially when contrasted with cases in which jurors who had a non-kinship relationship with a prosecuting attorney were questioned to determine whether they possessed bias resulting from that relationship. See State v. Shoemaker, 183 S.W. 322, 324 (Mo. 1916) (juror who was well acquainted with the prosecuting attorney and his assistants qualified to serve after stating he would try the case fairly according to the law and evidence); State v. Grant, 394 S.W.2d 285, 289 (Mo. 1965) (lifelong friend and former client of prosecuting attorney questioned regarding the ability to be fair and impartial); State v. Arnette, 686 S.W.2d 4, 8 (Mo. App. W.D. 1984) (acquaintances of county prosecuting attorney gave unequivocal answers and demonstrated no bias).
The principal opinion treats Juror No. 16 as though she is an ordinary juror, whom a defendant must demonstrate is biased before being struck, and requires this Court to presume the seated juror followed the circuit courts instructions to be fair and impartial. However, Juror No. 16 is not an ordinary juror. She is the sister of an assistant prosecuting attorney who actively participated in this case; therefore, pursuant to
Knowledge of the Juror and the Circuit Court
The principal opinion also finds Brandolese cannot demonstrate manifest injustice because he did not show or allege Juror No. 16 was aware of Farkas participation in the pretrial proceedings. Again, the principal opinion ignores the statutes plain language, which does not premise kinship disqualification on knowledge of a relatives participation in the cause, only knowledge they are kin to a prosecuting attorney. Cf. Stewart, 246 S.W. at 939-40 (holding no error in failing to disqualify a juror who was unaware he was distantly related to the victim); Miller, 56 S.W.2d at 96 (holding if it is conclusively shown that a juror, so related, did not learn of such [familial] relationship until after verdict, there is no good reason why a new trial should be granted. A juror cannot be prejudiced by a fact unknown to him.) (emphasis added). Further, the principal opinion mischaracterizes the holdings in Miller and Chandler to support its argument Juror No. 16 could not be biased or prejudiced because she had no knowledge of Farkas participation in the case. Miller and Chandler focus on the jurors knowledge of the kinship relationship, not
I believe the same reasoning applies to principal opinions assertion the circuit court may not have been aware of Farkas participation in the early stages of Brandoleses case. The circuit court is presumed to know the law regarding
Manifest Injustice Occurred
I believe the circuit courts failure to sustain Brandoleses challenge to strike for cause Juror No. 16 violated
In Missouri, [f]ailure to strike an unfit juror is structural error …. Dorsey v. State, 448 S.W.3d 276, 299 (Mo. banc 2014). In Weaver v. Massachusetts, 137 S. Ct. 1899, 198 L.Ed.2d 420 (2017), the United States Supreme Court clarified the structural error doctrine, explaining:
The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it affect[s] the framework within which the trial proceeds, rather than being simply an error in the trial process itself. For the same reason, a structural error def[ies] analysis by harmless error standards.
Id. at 1907-08 (alterations in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S. Ct. 1246, 113 L.Ed.2d 302 (1991)); see also State v. Strong, 263 S.W.3d 636, 647 (Mo. banc 2008). The United States Supreme Court recognized there are at least three broad rationales for the structural error doctrine, which include:
First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest[;] …. [s]econd, an error has been deemed structural if the effects of the error are simply too hard to measure[;] …. [and] [t]hird, an error has been deemed structural if the error always results in fundamental unfairness.
Weaver, 137 S. Ct. at 1908. In Strong, this Court found,
Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair. One such structural defect is the trial by an adjudicator who is not impartial. Therefore, where a criminal defendant is deprived of the right to a
fair and impartial jury, prejudice therefrom is presumed.
Strong, 263 S.W.3d at 647 (internal citations and quotations to Fulminante omitted) (emphasis added).
When determining the remedy for structural error, the United State Supreme Court took into account the nature of the error, when or if an objection was raised, and at what point during the post-trial proceedings the error was raised. Weaver, 137 S. Ct. at 1910-12. Weaver affirmed when there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the errors actual effect on the outcome. Id. at 1910 (quoting Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L.Ed.2d 35 (1999)). However, when the error is unpreserved and raised on collateral attack, such as in a post-conviction relief proceeding, the defendant must demonstrate prejudice because the United States Supreme Court was concerned with the systemic costs of remedying the error at a time in which [t]he finality interest is more at risk. Id. at 1912.
The United States Supreme Court has not, however, resolved whether unpreserved structural errors automatically satisfy the requirement of plain error review that the error resulted in prejudice. Rather, the Supreme Court has several times declined to resolve whether structural errors—those that affect the framework within which the trial proceeds,—automatically satisfy the third prong of the plain-error test.6 Puckett v. United States, 556 U.S. 129, 140-41, 129 S. Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (internal citation omitted) (quoting Fulminante, 499 U.S. at 310). Hence, the United States Supreme Court expressly reserved the question of whether structural error automatically satisfies the prejudice requirement for plain error review.7
The principal opinion seeks to expand Brandoleses burden to show a manifest injustice occurred when challenging the failure to strike a juror under
In In the Matter of the Care and Treatment of Braddy, 559 S.W.3d 905, 916 (Mo. banc 2018), the defendant moved to strike a juror for cause who possibly displayed bias, the strike was overruled, and the defendant failed to preserve the issue. This
Hence, I contend the circuit courts failure to strike Juror No. 16 constituted reversible error resulting in a manifest injustice. Brandolese was deprived of his fundamental, constitutional right to a fair and impartial jury because a disqualified juror sat in judgment of his case. I would reverse the circuit courts judgment and remand the cause for a new trial.
GEORGE W. DRAPER III, CHIEF JUSTICE