*1 Missouri, Respondent, STATE of
v. DRAPER, Appellant.
James
No. 65816. Missouri,
Supreme Court
En Banc.
Sept. 1984.
Rehearing 1984. Denied Oct. Defender, O’Brien, D. Asst. Public
Sean Defender, Fletcher, Kan- James W. Public City, appellant. sas Ashcroft, Gen., Atty. Papag- John Janet Gen., City, for eorge, Atty. Asst. Jefferson respondent.
DONNELLY, Judge. first de Draper was convicted of James § 569.020, 1978, and gree robbery, RSMo eighteen prison. years sentenced to Appeals reversed District Court of Western for a remanded the case his conviction and dissenting judge deemed the new trial. A opinion to in conflict with State majority 1983), 649 S.W.2d (Mo. Harrell, to this App.1982), and certified the cause Const, §Y, pursuant to Mo. art. judgment the trial court’s We reverse cause for a new trial. remand the August approximately On out- was robbed p.m., 7:15 Manuel Gomez putting grocery store as he side carrying groceries into his car. A man Upon dis- knife asked him for his billfold. *2 covering only appeal that the billfold contained no mon- issue is on whether the overruling trial court erred in ey, he the and for defendant’s searched victim asked challenge for cause of Venireman Carol money pockets. receiving in his After Martin. he change, $3 and some searched Go- further, nothing, mez and finding on dire, Early prosecutor in the voir away. walked following general questions asked the panel responded: which no one twice, glancing Gomez saw the robber Judge you, Now the will instruct ladies during observing him and him robbery gentlemen, credibility and as to the walking into store the rear view witnesses and how are to read and permit- robbery. Daylight mirror after the credibility any Is decide witness. him a a ted to see black male with beard anyone there who would unable wearing cap, jeans. a tan white T-shirt and merely follow that because instruction away, flagged A few blocks Gomez down may police witness be a officer? officer, police -gave description him a and a anyone give likely there who would be of his assailant and of the knife in the used credibility less because robbery. The officer arrived on the scene person is a testifying police officer? car, patrol in his Gomez following with Later, Venireman Martin stated that a approximately five minutes the at- after personal police close friend was a tack. following exchange place then took between Martin and defense counsel: Gomez, According to police when the ear and O’BRIEN: up, up walking drove defendant was anything your relationship about with grocery store; street from the when he gentleman, him, having known officer, police stooped saw he down and than likely to more be- talking police started to some men. The police lieve a officer? officer testified that he first when saw VENIREMAN MARTIN: I think it defendant, starting defendant to walk was might. store, northward from the that when he MR. O’BRIEN: Would have diffi- police walking saw the officer he started culty believing or officer fast, and that when pulled the officer over difficulty arriving own mind at a him he went to two three men and conclusion that might officer lie? began talking with them. The officer con- I VENIREMAN MARTIN: don’t un- cluded, trying “He was to elude me.” derstand the— Gomez identified defendant as rob- let me ask ber, Upon and the officer arrested him. accept this. Could own mind him, searching the officer found a butcher possible the fact that for it’s chip knife with a on the handle identical to say something officer to come Gomez, that described and some $3 that isn’t true? change. VENIREMAN MARTIN: don’t think so. Defendant testified that he not com- robbery.
mit the He he claimed found the THE COURT: hear re- didn’t store, sponse. way knife on his that before friends, reaching the store he met some VENIREMAN MARTIN: don’t be- stopped and that he with lieve so. to talk drink explained them. He his furtive movements Martin later in response stated to other by stating partly that he drunk at the that she would be time, saw he able to follow the court’s instructions con- panicked attempted get he officer cerning right defendant’s to testify rid of the bottle walked officer behalf. Toward the end voir dire, panel anyone over to any him. was asked if only if the defendant required not serve reversal is thought or she should reason Butler, supra, at prejudiced. particular reason. No has been on the 227; Harrell, The defend supra, at 757. responded. one prejudiced not to be has been held ant challenged Martin for cause. Defendant provide police officer did where the challenge, stat- The trial court denied Butler, *3 case. su of the State’s elements later indi- ing, mistakenly, that Martin 757; Harrell, 227; supra, at where pra, at she could be a fair and cated came from evidence important more per- juror. Defendant exercised one of 23; Cuckovich, witnesses, supra, at other her, and challenges to eliminate emptory 627, (Mo. Daniels, 630 629 S.W.2d v. State jury. Martin did not sit on the did police officer and where the App.1982); case is A defendant in a criminal issue. any truly testify contested jurors be panel qualified to a of entitled Smith, supra, at peremptory required to make his fore Lovell, challenges. v. 506 S.W.2d State case, indi although Martin In this Land, 441, (Mo. 1974); v. 443 banc State accord cated she would 290, (Mo.1972). When a 478 S.W.2d 292 weight of other witness greater than that expresses partiality a toward venireman es, questioned individually she was never gener testimony per officer se—as a concerning by further the court or counsel credibility contrary to ic class—the bias of questioning dis No further that matter. complainant-litigant dis the interest of the ability part to evaluate played an qualifies as a v. service State Wil same standard. See Har testimony by the liams, 832, (Mo.App.1982); 834 643 S.W.2d rell, other matter supra, at 756. Owens, 448, (Mo. 620 450 State v. S.W.2d individually questioned on which she was App.1981). The trial court is accorded wide unrelated, concerning defendant’s cause, ruling challenges discretion in right testify on his own behalf. not to duty closely, and but also has a to evaluate response to counsel’s mo trial court’s own examine, independently qualifi at times it indicated that had tion to strike Martin Lovell, potential jurors. supra cations of incidents, incorrectly at confused the two 444; 490, Ealy, at 493 State 624 S.W.2d tributing that she could fol her assertion (Mo.App.1981). independent such Without as to defend low the court’s instructions examination, searching a more review testify right ant’s not to appellate justified. court is State v. Mar concerning police testimony. Neither Butler, 225, (Mo.App.1983); 660 S.W.2d 227 venire tin other member of the nor Williams, 834; supra, Ealy, supra, at at con panel responded general questions 493; Holliman, 932, State v. 529 S.W.2d cerning ability to follow the court’s their (Mo.App.1975). 939 The trial court’s deter concerning credibility of instructions mination, however, rejected only will be officers, witnesses, particularly police upon showing a clear of abuse of discre their to serve on Olinghouse, tion. State v. 605 S.W.2d However, of unspecified such lack reason. (Mo. 69 banc questions is not conclu bias, particularly as the line as to sive on the issue of No clear can be drawn regard are challenge juror’s for cause should or conclusions Lovell, sustained; dispositive. supra, case must at Car should not be each be not Smith, ter, the circumstanc judged particular supra, on its facts. su at 337. Under case, failing to 422; Cuckovich, 485 es of this the court erred pra, State v. addition, 1972); Martin for cause. In S.W.2d 22-23 State v. strike in this Harris, 148, 155(Mo.1968). prejudicial 425 S.W.2d Al trial court’s error was victim though Although testimony of the potential errors in the of case. exclusion of the jurors all the elements always should of alone established be on the side case, caution, Butler, 227; testimony of the State’s supra, at Carter, officer as to defendant’s behavior (Mo.App.1976); robbery of guilt voir dire of panel consciousness defense counsel’s alibi following question by
contested the defendant. Un- Martin: der such circumstances reversal is warrant- MR. O’BRIEN COUN- [DEFENSE ed. my goes on to some of SEL]: [T]his holding Smith,
Our questions, is consistent with still have—after Harrell, supra, supra. In un- question, I’m finished have that I’ll still ques- like this the venireman was respond see how can to it. best length by judge, tioned at the trial Court will instruct that the burden stated he policemen would treat no differ- proof is on the State Missouri ently determining than other witnesses in prove its case a reasonable doubt. credibility. their at 424. More- S.W.2d Is there here who could over, there the officers not testi- right, by that instruction? fy any truly *4 contested issue. Id. In State, placing proof the burden of the Harrell, the entire voir dire did not indicate up that means in this it is to that case improper preference toward testi- Drap- prove the State of Missouri to Mr. mony, police testimony and of was guilty, obligation er and is under no he relatively importance. minor 637 S.W.2d at satisfy produce time evidence questioning by 757. Here there was no the any- that is innocent. Is there court, the entire dire not voir does show body who could not that instruc- follow unbiased, Martin to be and the testi- added.) (Emphasis tion law? of mony important contradicting was in de- Draper Mr. and defend- fendant’s alibi. option allowing ant has the of the State is the reversed and put having on its case twelve is remanded for a trial. new persons who serve determine from that evidence whether or WELLIVER, HIGGINS, BILLINGS, proved State has its rea- case JJ., concur. sonable doubt. here GUNN, J., dissents. who would not able to determine RENDLEN, C.J., separate in that you dissents think would have to believe opinion filed. Draper the State’s even were Mr. no evidence at all? Could offer BLACKMAR, J., separate dissents in independently weigh the State’s case opinion dissenting opin- filed in and concurs your question. in own mind RENDLEN, of ion C.J. added.) (Emphasis RENDLEN, Justice, dissenting. Chief Martin, Miss have I answered respectfully dissent. question sufficiently? principal opinion misinterprets Yes, VENIREMAN MARTIN: thank to fully pertinent portions fails set forth you. the voir dire of the record made on Okay. you, Would defendant’s motion to strike for cause and knowing you’ll that be instructed misreads defense counsel’s motion to law, points expect those be inclined to doing In majority strike. so fails to Draper testify Mr. could exchanges consider certain between venire- guilt consider his or innocence? woman Martin and defense counsel and VENIREMAN MARTIN: Not after erroneously concludes trial court had you explained toit me. separate confused two times Martin questioned individually. was MR. O’BRIEN: Okay, so could the instructions In addition to the instances of individual regard? (Emphasis added.) that prin- Martin set forth in cipal opinion, following during occurred VENIREMAN Yes. MARTIN: principal recognizes, de- as did the trial following colloquy opinion occurred on counsel, Martin for cause: that this motion to court and even fendant’s strike demonstrating in her she inquiry resulted MR. O’BRIEN COUN- [DEFENSE court’s instructions and could follow the Martin, D. Juror No. Carol SEL]: weigh case independently the State’s move to her for cause. She strike sought to her own mind. Defense counsel believe she didn’t that ab- the two by combining disqualify Martin testimony or witnesses sent defense individually matters she was on which independently that she could evaluate correctly (Em- questioned, and as the trial court credibility aof officer. concluded, added.) say she could Martin did phasis credibility de- absent evaluate an officer’s THE COURT: I don’t think that’s accurately fense evidence. The trial court she said. what by de- challenge presented evaluated the MR. KOMOROSKI [PROSECUTOR]: fense counsel. just question, I think she had a Your Honor, as to— principal reversing In conviction
THE COURT: And I think one of statements opinion focuses on Martin's questions last asked her she could she would be inclined believe a fair render verdict. These state testimony of to defense ments made O’BRIEN: think— were question hypothetical counsel’s which way, THE COURT: It off started *5 posed regarding the testi in terms her, you after I but talked with think she mony This has any fair, she said that could be and she could operate held that such statements will not juror. a fair and impartial be en disqualify to when consideration of the Okay, may that tire voir that dire shows the venirewoman said, Honor, very well be Your what she fair and if chosen as be I think her response but initial (Mo. Smith, juror. State difficulty making that she would have 1983). banc that evaluation. MR. I— KOMOROSKI: ample support There in record for this finding THE could got COURT: That’s not what I the trial court’s that Martin it. impartial juror. out of Defense be fair any inquired counsel whether venireman thought KOMOROSKI: proof in- could not follow the burden of question was responded asked and she require prove its struction and to State explanation after Mr. O’Brien’s she could Martin case a reasonable doubt. impartial. fair and She was be satisfied respond. posed did not counsel Defense with the— array: question this additional may THE have COURT: been a She first, anybody here confused I think who would be little but after you or that you talked with her I think she under- able to determine think I don’t stood. think she was—there was would have to believe the State’s question Draper in that no evi- any her mind she could even were Mr. to offer impartial. right, independent- fair and All what dence at all? Could Juror Mr. O’Brien? ly weigh about Number the State’s in case question. mind is the challenge Defendant’s for was not Again, by so Martin remained mute and solely response on based Martin’s to doing independent- affirmed that she could by principal questioning individual cited ly if the evaluate the State’s case even opinion. clearly record shows that Defense defendant no evidence. challenge was later offered primarily based question to regarding counsel with direct of Martin continued you could ability weigh “Okay, to case in her Martin: so the State’s venirewoman in that testimony. own mind absent of the court the instructions regard?” replied, Finally, “Yes.” testimony She de- by to evaluate all closing fense counsel made these remarks same standard. There is no abuse of clear panel, again, any his address to the discretion nor shown on record any Martin not indicate that she probability injury had real to defendant. qualifications challenge reservations about her to Even had been defendant's jury: exclusively serve on questioning, based initial it is clear Martin would to need have Okay, you. Anybody thank else have disqualified been for cause. The essential any question last or proved elements of the case State’s were talking Miss and I what Martin were by of the victim. Police Now, tes- Okay. about? that we have timony relatively was of importance. minor every single thing might cover that be in See S.W.2d 423-24 mind, anybody’s question so the I have is, anybody now is there who for reason thinks that he or she should should be affirmed. should serve on this for particular reason? BLACKMAR,Judge, dissenting. impossible me in it’s transcript quota- Justice Chief Rendlen’s my questions anticipate everything me, persuade contrary my tions initial might possibly affect impression, that the trial court did not err reach decisions. Is there overruling challenge for cause here something who there’s feels must, however, my express impa- that Mr. Komoroski [PROSECUTOR] practice at the judges, especially tience should know about we se- areas, overruling those urban chal- lect the twelve who will serve as lenges juror may for cause when the have jurors haven’t been already expressed thoughts give tentative which (Emphasis added.) asked? occasion concern. A judge determination trial of the qualifications prospective of a juror neces-
sarily involves a based on obser-
vation of demeanor venireman’s interpretation
evaluation and an- they
swers as relate to whether the venire- man be fair if chosen TAYLOR, Relator, Jay STATE ex rel. C. Cuckovich, as a State v. significant A amount elapsed of time McFARLAND, between Martin’s initial Glennon E. Judge, Circuit regarding police statement testimony Missouri, Clay County, Sev- her affirmation of her Circuit, 1, enth Judicial No. Division court’s instructions. heard She Respondent. qualifications silence affirmed her in re- 35298, Nos. WD WD 35365. sponse counsel’s final remarks Appeals, Missouri Court of panel. Giving regard due to the trial Western District. opportunity court’s to view witness and testimony, hear her it is reasonable con- March 1984. trial clude the court found that the second July As Modified 1984. final Supreme Motion for Transfer to questions had cured doubts raised July Court Overruled 1984. episode the first and that defendant’s chal- Application to Transfer Denied lenge interpreted inaccurately re- Martin’s Oct. sponses. light Viewed in the most favorable to
trial finding, court’s as a
whole indicated that Martin demonstrated