State v. Russell, No. 39772

No. 39772 | Mo. Ct. App. | Nov 28, 1978

CLEMENS, Judge.

A jury found defendant Elvera Russell guilty of second-degree murder and the judgment imposed fifteen years’ imprisonment. She has appealed, challenging only the seating of two jurors.

First, the trial court denied defendant’s challenge for cause as to venireman Tommy Threlkeld. Mr. Threlkeld stated on voir dire that he had an opinion of defendant’s guilt from reading a newspaper account; he was asked if he could put that out of his mind and determine the facts only as they came from the witness stand. According to the original transcript, which the state challenged, Mr. Threlkeld answered, “I don’t think so.” This answer is the gist of defendant’s present point that the trial court erred in denying her challenge to the venireman.

Pursuant to Rule 81.12(c), the trial court held an evidentiary hearing on the state’s motion to correct the transcript by striking the word “don’t” from Mr. Threlkeld’s answer. Based on testimony, of juror Threl-keld, both trial counsel and the court reporter — and on the trial court’s own recollection — the transcript was ordered corrected to change Mr. Threlkeld’s answer from “I don’t think so” to “I think so.” Defendant does not challenge the trial court’s correction order.

Considering the transcript as thus corrected, we find the trial court did not err in denying defendant’s challenge to venireman Threlkeld and her first point is denied.

Defendant’s second point relied on is unique and does not charge a trial court error. After final judgment, for the first time on appeal, defendant declares that she had learned one of the jurors, Mary E. Fetch, might have failed to disclose her membership in “The Women’s Crusade Against Crime” and her relationship with members of the St. Louis Police Department and the Circuit Attorney’s office. Defendant contends she was thus precluded from having a fully qualified jury panel.

Because defendant contends this was “plain error,” we have examined the voir dire. The jurors were questioned in general by the court — and Mrs. Fetch in detail — by both counsel. No question called for an answer about Mrs. Fetch’s alleged relationships which defendant now challenges. The challenge is nebulous and the record affords no basis for us to conclude under Rule 79.04 that defendant suffered from manifest injustice or miscarriage of justice. The denial of defendant’s point on appeal is without prejudice to her right, if any, to seek relief under Rule 27.26.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.