*1 concurring. Judge, Missouri, Respondent, STATE hesitation, I After some that the should have I believe BABB, Appellant. Lee Robert juror His coarse and in- excused Morris. putting the defend- remark about sensitive 65812. No. jail my expense” gives “in cell ant a at Supreme Court expectation and reflec- of sober reasonable de- punishment. Yet views about the tive point on pursue fense counsel not it in a motion preserve dire and did not voir 18, 1984. Rehearing Dec. Denied new trial. juror Melton under properly be excused Wither could Illinois, 510, 88 S.Ct. spoon v. (1968). Witherspoon L.Ed.2d salutary exception rare
provides a may predicat
proposition that error challenge the sustension of
ed on
cause, holding may not be so juror that a predilection because of a mere
excused one ex penalty. death Even
against Witherspoon stan
cuse in violation sentence, death requires dard reversal Estelle, ns
Bur Cir.1979) and, surely, the Court simply be- an erroneous excuse
correct have asserted juror himself could statutory exemption service. from special responsibility death have a § 565.014.3, RSMo cases under
sentence of error preservation The rules of relaxed, to the re- especially as renewing claims of error
quirement Rule 27.20. This
motion for however, aggravated
case, particularly is a traveled from a hired killer
one which prey. I seri- coldly his stalked
Illinois would have
ously doubt the result obliged if had been different the state challenge against Mel- peremptory use a afforded if defendant had been
ton or peremptory. additional *2 only by
therein deputy sworn sheriff in charge jury. larger adjoin- of the Another ing adjoining room and a room smaller larger occupied by room were numerous persons, largely person- other courthouse perhaps gen- nel and some of members public possibly including spectators eral of the trial by or witnesses trial which then, course, of been had concluded for more an than hour and were who seeking shelter.” 546.240, 1978, reads, Section RSMo part, as follows: argument concluded, When the jury may either decide court or retire They may deliberation. retire under charge who, of an officer in case of a felony, keepf shall be sworn to them to gether in private some or convenient room place permit any person and not or communicate with himself, by do so unless order of the Gregory Robinson, Fayette, P. Mark T. court, or to ask them whether have Sedalia, Kempton, for appellant. agreed upon verdict; and when Theodore A. agreed, he have shall return them Bruce, Atty. Gen., court, into by when ordered the court. 547.020, 1978, reads, Section RSMo part, as follows: DONNELLY, Judge. may grant The court a new trial for Appellant robbery, was convicted of kid- causes, following any of them: §§ napping rape 569.020, 565.- 566.030, 110 and RSMo in the Circuit (2) separated When the has been of County, Court Pettis sen- concurrent court, retiring without leave of the after years, of twenty tences fifteen years and deliberate or has twenty years imposed. appeal On guilty tending been misconduct Appeals, Missouri Court of Western Dis- prevent a fair and due consideration of trict, reversed and remanded for new trial. case; The case was then transferred to this Court, Court, order and will be original ap- decided here “the same as on Dodson, In State v. Const, §
peal.”
V,
Mo.
art.
(1936)
spoke
S.W.2d
this Court
§§
547.020,supra,
546.240 and
as
follows:
p.m. April
At 2:38
on
the case
p.m.
to the jury.
ruled,
was submitted
At
consistently
3:50
in felony
have
[We]
warning
jur-
cases,
tornado
separation
sounded and the
that if
miscon-
ors were taken to
the basement
duct
place during
of the
took
trial,
courthouse which was
progress
a civil defense safe
the verdict will be
designated
undisputed
area.
aside,
that “the
set
affirmatively
unless the state
shelter,
was taken to the
kept
subject
shows that
were not
although
room
said room did not
improper influences. But if after the
separating
have a door
that room from
case
been
has
submitted to the
sound,
sight
accompanied
determination,
its
and before
verdict
reached,
justified in re-
opportunity
would not be
has
there is an
this Court
ordering the
versing
judgment
could be used on
improper influence
any juror,
require
grant
a new trial. To
alone will
though may
it
be shown that
opportunity
even
to exer-
afford that court
discretion,
influence
not exercised....
proper
it is ordered
cise a
the verdict
entered
view,
the Dodson
holding,
In our
*3
and that the case be
the
be vacated
pertains
after-submission
insofar as it
to
di-
to the
with
remanded
situations,
longer
should
followed.
denying
the order
to set
rections
aside
stronger
are
“that the
rea
appellant’s
mo-
to rehear
new
authority
weight
sons and the
sustain
tion, and,
rehearing,
after a
to determine
that,
where a motion
a new
rule
granted,
whether
trial is
on account of communications
made
judg-
it should be denied and
whether
deliberations,
their
there
to
upon the verdict.
ment re-entered
legal presumption
they
that
is
rebuttable
moving
prejudicial
party,
that
rehearing
jurors testify on
May
presumption
inmay
some cases be
“The rule is
of the motion
new trial?
evidence,
and that where com
overcome
settled,
through
perfectly
that
duty
is the
petent
is offered it
evidence
verdict,
and
cannot be allowed
it,
the trial court to hear and consider
and
room,
and
violate the secrets of
so,
mo
that when it does
and decides the
any partiality or misconduct
tell of
thereon,
discretionary,
its decision is
tion
there,
transpired
speak of the motives
appeal]
is
...
for abuse
and
reviewable
[on
produce
operated
induced
which
v.
Mattox
United
only.
of discretion
testify
support of
they may
verdict. But
States,
50, 53,
140, 149, 13 S.Ct.
36
146 U.S.
disturbing influence
that no
States,
Holmgren
v. United
917;
156
L.Ed.
brought
and that
was
bear
301;
443, 445,
Holm
439,
Fed.
84 C.C.A.
tampered
with.
interfered
States,
509, 521,
v.
gren
United
considered,
elaborately
question
This
588,
861,
522,
591,
L.Ed.
19
30
54
S.Ct.
leading
authorities collated
all
State,
778;
Oborn v.
143 Wis.
Ann.Cas.
Leavitt,
(107
v.
reviewed Woodward
249,
737, 748,
(N.S.)
N.W.
31 L.R.A.
126
Mass., 453) and the doctrine was declared
Stark,
40;
966;
37,
v.
State v.
State
72 Mo.
stated.” State v. Under
be as above
1039;
544, 550, 71
Shipley, 171 Mo.
S.W.
40,
wood,
Mattox v.
(1874).
See
52
22,
State, 66 Ark.
16,
McFalls v.
48 S.W.
States,
140, 149, 13 S.Ct.
United
U.S.
146
Whalen,
662, 672,
492;
v.
68
State
98 Iowa
(1892).
50, 53,
Rule
1943) appropriate here: BLACKMAR, Judge, concurring. upon the motion for arising The issues opinion. pro- principal I in the It concur yet competent- have not new trial vexing prob- ato vides an effective solution apparent parties ly tried. lem. realize the court did not and the trial predilection was in favor of My initial having adduced.
necessity of evidence circumstances, appro- that, The reacted affirmance. We think priately an emergency situation. When returned to the courtroom after clear,
the all request counsel made no
suggestion inquiry possi- for an about the
bility opportu- influences. The
nity immediate resolution freshest,
problem, when memories were irretrievably lost. The defendant complain until after he saw the verdict. agree jurors may testify as to
presence or absence of outside influences.
Defense counsel did not make an offer
proof hearing on the motion for new
trial. But the should not have
quashed subpoenas jurors, willing now allow the defense to testimony.
have the benefit of their I am would
unable recall approaches made of spent
them time the base-
ment, any. had there been O’FLAHERTY, al., Appellants,
John et
STATE TAX COMMISSION OF
MISSOURI, Respondent.
No. 65845.
Supreme Court of
Rehearing Denied Dec. Dandino, ap- F. City,
Michael Kansas pellants. Gen., Atty. A. Melodie
Powell, Asst. Jan Hemm Pritch- ard, Schwarz, Counsel, Thomas R. Jr., Counsel, Com’n, State Tax