State v. Hopkins
687 S.W.2d 188
Mo.
1985
Check Treatment

*1 HIG- GINS, BLACKMAR, JJ.,

DONNELLY, J., concurs in

DONNELLY, concurring. Judge, Kimberlin, rel. Morasch v. State ex (Mo.banc pre prohibition

Court held that will lie to jurisdiction “that we

vent an excess of unfettered use of

should not continue the prohibition to allow interlocuto writ of

ry review of trial court error.” Hais, McNary State ex rel. (Mo.banc 1984), this Court prohibition

held that will lie where “[r]ela- adequate remedy by

tors do not have appeal.” case, sovereign immunity raises

In this question jurisdiction prohibition

will lie.

I concur. Missouri,

STATE of

Plaintiff-Respondent, HOPKINS,

Leonard R.

Defendant-Appellant. *2 (defense counsel):

MS. LEISENRING line your who killed in the son was executing duty a search warrant? Yeah, guess McKAY: I VENIREMAN they All I know is that busted apartment house an on Waterman. And it MS. LEISENRING: believe raid. drug awas McKAY: That’s the VENIREMAN what Louis, Arnold, Buie for defend- Debra St. paper said. ant-appellant. MS. And it was a Shoot LEISENRING: Mason, Gen., Atty. David C. Asst. Jeffer- one of your son was killed Out City, son for plaintiff-respondent. the men? McKAY: Who VENIREMAN was HIGGINS, Judge. apartment, yes. offender, any- MS. Hopkins, Leonard LEISENRING: Was body else arrested and in con- jury manslaughter, was convicted I, degree nection this incident? Count and first assault in Counts shooting people, II III after kill- three Yes, everybody McKAY: VENIREMAN ing injuring one and the other two. apartment the in was arrested. jury ing lenge years, Count prospective juror, tive peremptory strike to wide examine Count appeals, this Court transferred the case to II; clearly department executing moved to prior to defendant’s trial. The other Treadway, 558 a clear abuse of One son was killed 1977), cert. “In Both family’s and a concurrent juror. be disturbed discretion, assessed his on for cause of III. the St. Louis Police dire, by overruling Michigan After affirmance Venireman Reversed and remanded. insistence. in a low-crime search I; thus the evidence and constitutes and the life imprisonment, Count on in Venireman punishment discretion.” State (1978). forcing warrant to work on a the line trial court abused its remove the fifteen-year appeal McKay’s qualifications U.S. court’s defendant’s court resort in him to use a twelve Department. unless it is the court of ruling duty at fifteen sons has prospec- term area years while very dur- had son on that possible that VENIREMAN have about ting killed, nothing VENIREMAN that matter MS. VENIREMAN MS. LEISENRING: body ness or Homicide, Capital MS. LEISENRING: about arrest in everybody else it. this, LEISENRING: it here was hurt was the in being sequestered, having that, sir? apartment? do may bring up feelings else lingering anger were through outside on case, think it’s if you satisfied with the McKAY: I don’t McKAY: McKAY: The even handled, [*] son’s death? paid little ties, people which a two mind, got How do were chosen as a Do How do ! possible boy I that had been your sentence think it’s Let subsequent bit. three he killed. you feel? think it’s charge of bitter- son that possible me ask cut believe really some- may feel day one out sit- off is from voir following is dire exam- VENIREMAN McKAY: can’t tell McKay: going happen.... might, what’s It ination of Venireman forget certainly not. I don’t know. I VENIREMAN McKAY: really, it there are a lot try. T.V., paper, see on what have right. THE All COURT:

you, brings it all back. Just recent- can’t ly, only anniversary, month was last I'm to do. I know what want to February. my wife and both *3 do, you tell possibili- but can’t what the month, past had a terrible time this nor- lawyer are ties to be. Like the mally do. me, just get asked when we n n n n sjs bring will it back like memories of happened. yeah, MS. LEISENRING: As to whether or there’s a possibility great possibility happen. Right not think there is a that can nothing. chosen as a in this case and now I have know, being, you sitting here in the box An accused must be afforded a listening might jostle, to all the evidence panel qualified jurors full of before he is feelings, arouse some of those the sad- expend peremptory to his chal ness, sorrow, anger lenges; legiti denial a trial court of a experienced in relation to son’s request by mate an accused to excuse for death. partial prejudiced venireperson cause a VENIREMAN McKAY: would def- constitutes reversible error. State v. sure, initely, possibility. there is a Thompson, (Mo.App.1976); 541 S.W.2d 16 And do (Mo. Lovell, v. 506 S.W.2d 441 banc State possibility think there’s a that then the 1974). end result is that it could affect ability impartial to render a fair and ver- challenge when a for dict in this case? sustained, each must cause should be might. Like VENIREMAN McKAY: It Harris, judged on its facts. v. be State to, before, I said I’d not I don’t but 148, (Mo.1968). “Errors in 425 S.W.2d 155 possibilities are. know what potential jurors should al the exclusion of

ways on the side of caution.” be made 334, (Mo. Carter, 544 S.W.2d 338 State v. (prosecutor): Okay. If after MR. BAUR App.1976). listening felt that to all evidence the defendant had not been beyond VENIREMAN McKAY: Like fore, to follow the Court’s Instructions? MR. able >jc BAUR: to return a I would a reasonable < hope verdict to, doubt, You would be able yes. sjs of not hope proven guilty said be- guilty? be Brown, 660 S.W.2d 694 for crime is not sufficient reason challenge someone who has alone is not a basis for 17 (Mo.1973); cause, 829 A (Mo.App.1982); relationship State State v. v. Eaton, experienced a violent for cause. State to a challenging juror Boyd, 643 S.W.2d (Mo. relationship to banc itself officer 1983); to v. Smith, 417 questions asked v. S.W.2d THE COURT: State — U.S. —, proper- cert. by counsel for the defendant was (1983); v. ly trying State Under to elicit wood, (Mo.App.1982). 642 S.W.2d 658 It is point you any prejudice free of are relationships and ... when these combine with oth the defendant ... er to lack possibility impartiality it would factors indicate a of indicated there was that a must be sus some memories. But what want revive Land, memories, tained. See State 478 S.W.2d 290 to is even if it revived ask (Mo.1972); Holliman, State solely verdict could base (Mo.App.1975). and the Instructions. evidence judges fully Examination dire Ve should Trial sustain McKay, lenges jurors nireman not reveals rela to who indicate reservations tionship policemen relationship impartiality. Replacement jur- to and a to about their crime, Capital a victim a easily metropolitan of violent ors prospective juror integrity— areas, but also a it should be difficult struggling uncertainty as with to his own adequate supply jurors ensure in other impartial in this case where parts state. Capital the defendant was regret for necessity reversal Murder. He he indicated wanted and conviction of a offender on seri- hoped time, theAt same charges, ous in which there to be no seems spoke lingering thoughts son, he of his error, agree claim substantial feelings “somebody analysis principal opinion with the bit,” paid a little the anniversary and that demonstrating challenged juror *4 of his son’s death had one month gave never an answer which free from prior to voir and a particularly dire reservation. upsetting time. Not McKay unequiv- once did Venireman

ocally impartial- state he could the case most,

ly; at “try” he said he would circumstances, judicial these

be sustained and Venireman re-

placed by pool from readily another jurors. Failure to do so constitut- Fausett, James J. DAKE and Velva ed reversible error. Lovell 444. Plaintiffs-Appellants, judgment is reversed and the cause

is remanded for a new trial. Hubbard, Eldon TUELL Robin Defendants-Respondents. GUNN, DONNELLY, JJ., J., BLACKMAR, concurs

BLACKMAR, Judge, concurring. concur, separately simply and write

express many concern about cases

presented to our Court and the Court

Appeals in which a indicates doubt impar-

about his or her to function

tially, and is nevertheless continued

panel tendered to counsel for strikes. typical judge prose-

cutor ask questions until the

gives impartiality. assurance of efforts of suspicion ini- juror’s remains that the persists,

tial reaction and that the assur- expected

ances interrogation authority by high fig-

ure.