*1 Missouri, Respondent, STATE JOHNSON,
Larry Appellant.
No. 68249. Supreme Court of Simons, Holly Putzel, John Office of En Banc. Louis, Defender, appellant. Public St. Dec. Webster, Gen., Atty. William L. Ted Bruce, Gen., Atty. II, Asst. Thomas Carter Rehearing 13, 1987. Denied Jan. Gen., Atty. City, Asst. Jefferson for re-
spondent.
RENDLEN, Judge.
Defendant, offender, prior was convict- I, by jury ed on four counts: Count 566.030, rape, Cum.Supp. forcible RSMo § 1984; II, 566.060, sodomy, Count forcible § III, Cum.Supp.1984; robbery RSMo Count 569.020, 1978; degree, in the first RSMo § IV, 565.110, kidnapping, Count RSMo § 1978. He was sentenced as follows: Count I, II, imprisonment; life Count fifteen years imprisonment, consecutively run I; III, in thir- to the sentence Count Count ty years imprisonment, concurrently to run II; in with the sentences Counts IV, years imprisonment, fifteen Count consecutively run to the sentences I, Following II and III. affirmance Counts District, Appeals, Eastern the Court of granted and now determine the we transfer original appeal. Mo. though cause as on Const, V, 10. sole claim art. Defendant’s § its appeal on is that the trial court abused overruling defendant’s chal- discretion lenge for cause of venirewoman dire, during forcing voir thus defendant peremptory strike to remove her. use a sufficiency the evidence is not accordingly a recital of challenged, brief supportive will suffice. facts of the verdicts January a.m. on approximately At 12:30 Louis, victim City of St. man, his just entered her car when a shirt hood and covered a sweat face scarf, way into the car. forced his quieted because screamed but then victim knife at her man had a she realized the up, that she throat and ordered “[s]hut *2 car, assailant the DELAHANTY: I bitch.” The started VENIRE[WOMAN] probably would decide more with the alley, parked alongside ga- a drove to an woman in this situation. rage and asked the victim into which trash body put. she He container wanted her you couple I MR. CURRAN: Can ask a give money, the to him her then told victim questions? of more gave and as ordered she him two dollars DELAHANTY: VENIRE[W OMAN] car, from her He the wallet. restarted Yes. alley parked drove to another and on an you Why MR. CURRAN: feel empty her lot. When victim unlocked way this here? door, jabbed the assailant at her with his object. asking MR. I It’s her MOSS: said, try. knife and “Go ahead and I’d love I justify position to a think the law you.” parked kill In the to car the victim can. raped sodomy, and forced to commit Well, any- THE COURT: I don’t see during the ordeal the victim observed thing wrong doing. he’s what Over- range. assailant’s face at close Even- ruled. tually, having go stated she would not Why you feel MR. CURRAN: police, the victim was allowed to leave way? car apartment with her and returned to her VENIREjWOMAN] DELAHANTY: I reported where she the crime first to a just really I don’t think could be hon- —I guard security police. and then the est in case. I’d be afraid to be on this day next she preparation assisted this case. assailant, composite sketch of her exam- MR. CURRAN: Is that because of the photographs ined a series of and found one charge? nature of this recognized of a man whom she as the as- DELAHANTY: VENIREfWOMAN] sailant, viewing lineup identified de- Yes. fendant as her assailant. At trial the vic- you saying you MR. CURRAN: So are again tim identified defendant as the assail- impartial would be unable to be fair and ant. on this? Turning ap- to defendant’s sole claim on I DELAHANTY: VENIRE[WOMAN] peal, pertinent portions of the voir dire burglary charge. I’d on a think be better examination of are I’d be more fair to that. as follows: I’d like to make a mo- MR. CURRAN: Now, MR. CURRAN [for defense]: tion at this time. jump let me to another for the THE It’s at this COURT: overruled things I Delahanty, want to ask. Mrs. time. question just I the same asked. You’re a you able to MR. CURRAN: Will charge allegedly And woman. here specific. me be view the evidence—Let rape. going is that How to influence is, I What I have to do have to make you? questions certain re- record and there’s MR. hon- MOSS Your [for State]: you I to ask so quired by law that or, object I to the form of the you can or not we can determine whether asking jurors justify here. It’s these I jury. only reason be on the particular position for a belief or where- you some stopped short is I have to ask as I think it can be asked will influence it you Are able or would questions. more other, way them one or the the fact that knowing you to sit on this case be able happened it to a woman? impar- charges as a fair and what the are THE COURT: Overruled. tial? Delahanty, DELAHANTY:
MR. CURRAN: Mrs. VENIRE[WOMAN] Yes, guess. I repeat question? should I Now, right. you you disregard
MR. CURRAN: All
the law as the
give
you?
tells
you guess.
you
yes
Can
me a
said
no?
or
W
DELAHANTY:
OMAN]
VENIRE[
No.
I
DELAHANTY:
VENIRE[WOMAN]
is,
thing
MR.
The other
MOSS:
everything
seen
don’t know with
I’ve
your feelings
if a
witness
rapes
on TV.
think I’d be
about
*3
got up
you
there and
listened to what he
decid-
more—I’d .be more nervous about
you
yourself,
or she said and
said to
ing who he was.
doesn’t make sense. That
is off
Now,
right.
All
do
MR. CURRAN:
lying.
your feelings
the
and is
Are
wall
you
you, your
think that would influence
rape
you
such about
would believe
ability to be fair
this case?
any way?
In
that witness
other
DELAHANTY:
VENIRE[WOMAN]
words,
you
find the fact that what
didn’t
Yes.
believe to be a fact?
you
you
MR. CURRAN: Do
think
object
ques-
I’ll
to that
MR. CURRAN:
following
not be able to
the
tion. That misstates the Court’s instruc-
your
feel-
Court’s instructions because
tions.
ings?
go
THE
can
ahead and
COURT: She
DELAHANTY:
VENIRE[WOMAN]
answer.
Yes.
saying
what I’m
is are
MR. MOSS: See
you
you
MR. CURRAN: Do
think
feelings
strong that
it causes
your
so
inclined to lower the burden
would be
you
you
a
wouldn’t
to believe witness
proof
and make it less than
otherwise believe?
a reasonable doubt?
DELAHANTY:
VENIRE[WOMAN]
DELAHANTY: I
VENIRE[WOMAN]
No.
think so.
thing
that’s the
we can
MR. MOSS: So
you won’t
able
MR. CURRAN: So
strong
about some-
all have
emotions
to follow the Court’s instructions?
is,
question
do the emotions
thing, the
DELAHANTY:
point
say,
where we
push us to the
VENIRE[WOMAN]
Right.
I’m
“Okay, I
care. This is what
don’t
law,”
regardless of the
going to do here
you
THE
Do
want to make
COURT:
you?
the law tells
regardless of what
ahead,
any inquiry,
Go
Mr.
Mr. Moss?
he
you could follow what
you
Do
think
Moss.
if
here and not insert
you
tells
the law
Delahanty, I’m sure
MR. MOSS: Miss
feelings
your
about the law?
own
jury
on this
people
that there are other
DELAHANTY:
VENIRE[WOMAN]
panel
your
that share
concern about
facts,
yes.
Just
uniquely
it’s a
problem
rape.
And
got to decide
Right. You
MR. MOSS:
Nobody
point.
at this
problem
feminine
important
facts here. That’s
you
won’t find a
likes it. mean
[soul]
thing.
going
say
to
it’s fine.
in this room who’s
ahead, Mr. Curran.
THE
Go
COURT:
strong feel-
you
have some
And
should
inquire further?
you want to
Do
you should have some
ings,
just as
Yes, Judge, just brief-
feelings
and mur-
MR. CURRAN:
strong
about robberies
why we’re
point,
you understand
really,
ly.
at this
I think
ders.
little more time with
going
spend
to
feelings
strong that when
your
is
are
you have had
law,
hearing what
you. After
you
you
tells
this is
Mr. Moss has
what
well,
say
to
and after
I don’t
say
yourself,
to
care.
question. Can
very simple
law,
say, it’s a
say
is the
but this
may
He
this
your personal
law and let
you follow the
you
Do
feel
going
I’m
to do.
what
following the law?
is,
feelings aside
My question
you’re going to do that?
your
me,
me that
it seems to
Frankly, to
pushes
it
your feelings so
are
personal feelings
going
by
justifies
override
examination
the trial
court
says
Moss
I’ll
they
searching
appellate
the law. Mr.
aren’t.
more
review
an
give you
opportunity
challenged juror’s qualifica
last
court
one
and then
of the
you
you
I’ll
tions.
Ealy,
leave
alone. Can
set aside
State v.
S.W.2d
(Mo.App.1981).
your personal feelings
following
law this case or not?
case,
although
In the
venirewom-
DELAHANTY:
VENIRE[WOMAN]
Delahanty initially expressed
an
reserva-
Yes.
impartiality
ability
tions about her
and her
you
MR. CURRAN: I’ll
alone.
apply
proof,
leave
proper
burden of
Judge,
my
I still wish to renew
motion to
careful consideration of the entire voir dire
strike because of the nature
an-
of the
examination reveals that she demonstrated
ability
swer.
an
to be fair and to follow the law
Upon
of the court.
instruction
exami-
THE COURT: Overruled.
prosecutor,
nation
De-
*4
dire,
during
Later
voir
the trial court
lahanty stated that she would not dis-
stated:
regard
law,
feelings
that her
were not
Defense has made a motion to strike
that she would believe a witness
Miss Delahanty for cause and I overruled
believe,
whom she otherwise would not
and
opinion
the motion.
It’s the Court’s
af-
“[j]ust keep
that she would
the facts.”
[to]
listening
responses
ques-
ter
to her
to the
Finally,
affirmatively
she
answered de-
hearing
demeanor,
tions and
her
fense counsel’s
whether she could
though
even
she did
say
at one time
she
personal feelings
set aside her
and follow
instructions,
couldn’t follow the Court’s
the law.
and
subsequently, by questioning
then
distinguishable
The
case is
from
Moss,
by Mr.
she said she could follow
defendant,
prior
including
cases cited
times,
though
them and
at
said she was
188,
Hopkins, 687 S.W.2d
and State v.
afraid to be on the case because she
Land,
(Mo.1972),
66 ROBERTSON, JJ.,
BILLINGS fair to the Her defendant. answers were compel concur. as to expend such the defendant to peremptory challenge, a valuable without J., DONNELLY, separate in concurs regard purpose to rehabilitation. One opinion filed. dire, course, voir is to obtain information BLACKMAR, J., separate dissents in helpful exercising peremptory which in opinion separate filed and concurs challenges, repeatedly we held WELLIVER, dissenting opinion of J. panel a defendant full is entitled to a WELLIVER, J., separate jurors dissents in of unbiased from which make his opinion separate filed and concurs strikes. BLACKMAR,
dissenting opinion of J. attempted The rehabilitation consisted of HIGGINS, C.J., dissents and concurs prolix prose- leading questions by three dissenting separate opinion cutor, containing one more than words BLACKMAR, J. interrupted by colloquy. and another hardly responded ju- answers at all to the DONNELLY, Judge, concurring. prejudice ror’s indication of as shown by me, teaching For of Strauder prosecutor her initial answers. (10 Otto) 303, Virginia, West U.S. apparently juror anxious to retain who (1880), peremp- L.Ed. 664 is that the use of sympathetic seemed to his cause. challenges tory should be eliminated give jurors strongly When answers indic- system. justice the criminal Batson v. See *5 bias, they of should be ative excused. -, -, 106 Kentucky, 476 U.S. S.Ct. Pages grilling of cannot eliminate ini- 1712, 1726-29, (1986) 90 L.Ed.2d 91-95 tial demonstration such as this record (Marshall, J., Note, concurring); The Case important It is trial shows. that the have Abolishing Challenges in Peremptory Trials, appearance of to the fairness defendant Criminal 21 Harv.C.R.—C.L. (Mo. to those who for him. Lockett are concerned (1986); v. 227 L.Rev. appearance. December This trial does not have that 1986) (No. decided banc 16,1986). Judge says, I wish Just as Welliver done, challenges If this were for cause in our put trial not us upon slightest be sustained indi- prejudice of position. indication is so prejudice. cation of unwilling that I am defer to his I would and remand for decision. reverse respectfully suggest I that the General a new trial. 546.180, Assembly repealing consider § 1978. RSMo agree suggestion by I do not with Marshall, I concur. Donnelly, Judge quoting Justice be elimi- peremptory challenges should BLACKMAR, Judge, dissenting. system. I justice from the criminal nated great criminal many not tried cases the challenge I believe that of venire- but, I of in those that on behalf defendants Delahanty for cause should have woman try, peremptory challenges I felt did been sustained accordance with experi- invaluable. I believe were teaching v. 687 S.W.2d Hopkins, of State practitioners agree. criminal Batson 1985).1 enced (Mo. fol Hopkins banc 188 U.S.-,-, 476 106 Kentucky, S.Ct. v. Holland, v. 719 S.W.2d lowed State (1986), 1712, 1726-29, 91-95 1986). L.Ed.2d (Mo. opinion de principal banc certainly things makes more difficult for parts sends the holdings from those court, I do not prosecution and the quotes It two wrong signal judges. to trial peremptory that the abolition of dire in which believe pages of voir examination challenge solution. appropriate is an juror expressed she could doubt that Hopkins opin- handed ion was down. This case was tried before our WELLIVER, Judge, dissenting. respectfully
I dissent and in the concur
dissenting opinion Blackmar, Judge. why wondering judges able trial place position
continue to in the feel- us
ing obligation an under our cases defer their decision to which veni- as time the truth,
reperson telling they when easily
could so all of take us off the hook slightest
and remove suspicion even the .by calling juror
unfair trial simply another the jury pool. COUNTY,
JACKSON
Respondent,
v. CITY, Missouri, Appellant.
KANSAS COUNTY, Missouri, Respondent,
CLAY CITY, Missouri, Appellant.
KANSAS
No. 67758.
Supreme Court of
En Banc.
Dec.