*1 plaintiffs failed make a submissi- ble case of tortious interference with a expectancy
business proof because their
failed justifica- to establish an absence of
tion for defendant’s actions. Accordingly order the trial granting a new
trial is reversed and the cause is remanded
to the circuit entry court for judgment
in favor notwithstanding of defendant
verdict.
BLACKMAR, C.J., RENDLEN, COVINGTON, JJ.,
HIGGINS
SEILER, Judge, Senior concur.
ROBERTSON, J., participating.
BILLINGS, J., sitting. Missouri,
STATE of
Plaintiff-Respondent, WALTON,
Robert Ladell
Defendant-Appellant.
No. 72462. Missouri,
Supreme Court of
En Banc.
Sept. 1990.
Rehearing Denied Oct. *2 Columbia, Hogan, for defendant-
Susan appellant. Gen., Webster, Atty. Deborah
William L. Ground, Jurgeson, Asst. At- L. Ronald L. Gen., City, plaintiff-re- tys. Jefferson spondent.
HOLSTEIN, Judge. was convicted of
Robert Ladell Walton 569.170, burglary, RSMo degree second § 570.030, stealing, RSMo 1986. § imprison- years to ten He was sentenced appealed his con- ment on each count. He Appeals, viction to the Missouri Court filing After the Western District. opinion, grant- this Court appeals’ court of modi- ed transfer. Rule 83.03. With some fications, adopts this Court by Anthony P. appellate court authored Jr., Judge. Affirmed. Nugent, Chief wife, Harrison, Bobby When Debo- Harrison, rah, son, their Brett returned trip, Lexington home from a ski to their parked in their they strange found a car they did not investi- barn. At that time belongings and gate, unloaded their began unpack. unpacking, Brett Harrison discov-
While missing rings and almost $200 ered two dresser, and Mrs. Harrison found from his through her rummaged had that someone jewelry Bobby Harrison called box. and the reported sheriff and the losses strange car the barn. call, Harrisons making
After thought they heard a in their base- noise men to check. Debo- ment. two went through began go the clos- rah Harrison moving door ets. Brett his closet heard rifle, and, went to his room armed with a Walton in his closet. and found defendant Deputy Robert Teichman Within minutes and handcuffed the arrested arrived and deputy escorted the de- As the defendant. house, the Harrisons out of the fendant had done with their asked him what he Harrisons and property. He then led the in the basement. Be- deputy to a bed hind the bed plastic wallet, the Harrisons found a them to remove his because those bag containing box; they inside box purpose interroga- acts occurred for the found Brett rings, Harrison’s Deborah’s custody tion was in while he but before the jewelry costume silver several dollars. him of his rights. officer advised Miranda Brett then asked the defendant whether *3 point, first argues In his defendant money, he had his pointed and defendant to peremptory that the state used its chal in pocket. the wallet his Brett removed the lenges all jury to exclude blacks from the pocket. wallet defendant’s back It in violation Batson v. Kentucky, $172, held including a Brett bill. testi- $2 1712, S.Ct. U.S. 90 L.Ed.2d fied that he money had a bill in the $2 on (1986). appeals The court of ordered the his dresser. The defendant did not claim evidentiary hearing case for an remanded ownership money. of the on that issue. trial, At the defendant that testified he Rust, hearing, At the J. Armin prose- way had been on Higginsville his to when cutor, appeared for the state. Defendant began he having problems. car Previous appeared person by attorney in and Dennis time, that to he and Brett rode Harrison to evidence, on Rolf. Based the court together. parked work He said that he his only found that state had struck the in car driveway Harrison’s and went to clear, specific, two blacks on venire for front door. The Harrisons arrived soon neutral, legitimate and to reasons related explained presence, afterwards. He his the ease. they together. entered the house The Mr. Rust testified that he struck Michael Harrisons discovered of the the theft mon- brother, his serving Elmore because then ey jewelry Depu- police. and called the sentence, prison prosecuted had in ty Teichman shortly arrived and arrested County Lafayette previous within the six protested the defendant. Defendant that months. Mr. Rust also testified he that money. did not he have Brett’s struck Ethel Johnson because he associated Deputy repeated Teichman the Harri- which, public with a case as defend- sons’ account of what occurred. He also er, Johnson, represented he probably had office, that testified later at the sheriff’s Ap- either Mrs. Johnson’s son relative. gave defendant Walton an oral statement parently, Rust Mr. did not ask Ms. Johnson purchase he went to to the Harrisons verify supposition. his cocaine from Brett. He the house entered through glass door, sliding a basement hearing judge observed Mr. room, went Brett’s and found no cocaine explanation Rust’s and found his demeanor money took some dresser from Brett’s judge to be race-neutral. The also found the Harrisons found him. before that the defendant had offered no evidence practice pattern prose show a juryA convicted defendant of second de- using peremptory challenges cutor’s office burglary appeal gree stealing and this racially discriminatory in a manner. No followed. made; showing such need be the court will points argues Defendant Walton three on individually. each Batson first, per- appeal: the trial court erred 95-96, 476 U.S. at Kentucky, S.Ct. at mitting proceed the trial to after state 1722-1723; Arlington Heights v. Metro. peremptory challenges its strike all used 252, 266, Cory., 429 Hous. Dev. U.S. Second, members of the venire. black 50 L.Ed.2d S.Ct. in overruling trial court erred his however, say, did “a Batson court Steffens, Mary cause to member of against ‘pattern’ jurors of strikes black in venire, panel full depriving him of a particular might give cluded in the venire jurors from to make his qualified which rise to an inference of discrimination.” 476 Third, challenges. the trial peremptory at 1723. U.S. at 106 S.Ct. plainly allowing erred witness- testify them account of the evidence that he had led The trial court’s es quite missing property “plausible light had allowed in is and that he this case specifically and, you Do know MR. MAGEE: entirety” record viewed its are talk- this matter we therefore, about anything its conclusions are erroneous, in such ing the standard of review about here? Antwine,
cases. As I said
STEFFENS:
VENIREMAN
denied,
1987),
cert.
486 U.S.
earlier,
discussed
the case had been
L.Ed.2d 217
108 S.Ct.
my
husband
Brett worked
home.
ago, and when he was
years
five
farm, and he
school,
on a
high
we lived
point
second
the defendant
his
farm,
so—
on
helped
husband
in over
that the trial court erred
contends
So, there is
right.
All
a member
MR. MAGEE:
ruling
for cause to
that relation-
venire,
relationship? Would
Mary
because the
some
*4
you?
panel
ship
of
influence
thereby denied him a full
make his
from which to
qualified jurors
really
I
STEFFENS:
VENIREMAN
challenges.
peremptory
No,
not
it would.
it would
don’t think
me.
influence
during
dialogue
following
occurred
you.
Thank
dire examination:
right.
All
the
MR. MAGEE:
anyone
Does
MR. RUST [Prosecutor]:
juror,
as a
the venire
qualify
To
sitting in a case
any trouble
else have
ser
upon
to enter
that
man
be able
must
Harrison, Debbie Harrison
[Bobby
where
free from
open
an
mind
bias
vice with
are the witnesses?
and Brett Harrison]
Wheat,
155,
v.
S.W.2d
prejudice. State
775
Yes, Mrs. Steffens?
—
denied,
cert.
1989),
(Mo.
U.S.
158
banc
Well,
also
I
VENIREMAN STEFFENS:
744,
-,
L.Ed.2d 762
110
107
S.Ct.
to the Harrisons.
have talked
duty
make an
has a
The trial court
Har-
have talked to the
MR.
You
RUST:
only when a venireman
inquiry
independent
that
time?
risons since
ability
be fair and
his
equivocates about
Yes.
STEFFENS:
VENIREMAN
However, where an answer
Id.
impartial.
them
of bias
you
suggests
possibility
And
talked to
question
MR. RUST:
to a
questioning,
the venire
the facts of the case?
further
of im
unequivocal assurances
gives
man
Well, it was
STEFFENS:
VENIREMAN
prejudice
possibility of
partiality,
the bare
conversation, yes.
brought up
deprive the
disqualify
will not
But,
event,
you
if
MR. RUST:
to seat the venire
discretion
trial
juror in this
upon to be a
were called
728, 734
Lingar, 726 S.W.2d
v.
State
man.
give both
case,
you
you
think
could
do
denied,
872,
banc),
108
cert.
(Mo.
484 U.S.
trial,
a fair
of Missouri
State
It must
157
98 L.Ed.2d
S.Ct.
defendant, Mr. Walton?
the evidence
clearly appear Yes, I do.
STEFFENS:
VENIREMAN
preju
in fact
venireperson was
challenged
Thompson,
v.
723 S.W.2d
diced. State
attorney]: All
MR. MAGEE [Defendant’s
Edwards, 714
v.
(Mo.App.1987); State
84
now,
question.
same
right,
Mrs.
(Mo.App.1986).
788
S.W.2d
acquainted with
you
fact
are
[Would
de-
you
your
influence
has wide discretion
the Harrisons
A trial court
case,
you
qualifications
in this
wherein
of mem
determining
liberations
venire,
them than
apt
appeal
to believe
the court
might be more
and on
bers
else,
might
ruling
in the delib-
you
on
somebody
the trial court’s
not disturb
will
knowledge or
upon your
abuse
reflect
absent a clear
erations
for cause
you
injury
than
probability
rather
what
real
acquaintanceships
and a
discretion
Wheat,
party.
from the witness
complaining
and hear
stand?]
see
court,
is for the
at 158. It
775
ques-
S.W.2d
Same
STEFFENS:
VENIREMAN
determine
venireperson,
not
I
know and
I
fair.
do
I think could be
tion?
panel
member of
challenged
family,
I whether
Harrisons,
the whole
the testimo-
juror, but
impartial
could be
think I could be—
ny of
concerning
the member
ability
Hopkins,
454-55. In State v.
687 S.W.2d
impartially
act
is evidence to be considered
(Mo.
1985),
banc
by the trial court.
Reynolds,
State v.
officers,
police
was the father of two
one of
(Mo.1981).
S.W.2d
Because the whom had
duty.
died
the line of
His
trial court is in
position
a better
to deter-
clearly
answers
indicated that he could not
ability
mine a venireman’s
to impartially
impartial
most,
serve as an
juror.
he
At
law,
follow the
doubts as to the trial
hoped
impartial.
wanted and
to remain
findings
court’s
will be
resolved
its fa- However, he never unequivocally indicated
Smith,
vor. State v.
impartial.
he could be
Id. at 190-91. The
(Mo.
1983);
Merritt,
banc
State v.
Lovell,
prospective juror in
(Mo.App.1987).
S.W.2d
1974),
S.W.2d
could
“A prolonged friendship by a
say only that
thought
he
he could be a fair
venireman with
party,
a witness for a
and impartial juror.
In each
cases
itself, does not sustain contention that the
upon,
gave
relied
the venireman
a direct or
refusal
for cause
equivocal
indicating
he
answer
or she
trial court was an abuse of discretion—ab
might
impartial
be fair and
aas
sent a
prejudice.”
drawn
That
Mary
is
here.
Steffens
Owens,
(Mo.App.1981).
*5
indicated unequivocally
parties
to both
addition, prior
In
knowledge
a
she
impartial juror.
could be a fair and
not,
se,
per
require
does
potential
that a
juror be stricken when
knowledge
such
Wacaser,
(Mo.
State v.
It testimony is rare for the a banc of of defen- “Mindful court’s burglary unique dant in a to in to opportunity be direct observe venire dire, victim, during testimony appellate conflict with the man an ruling challenge but here there was such a conflict. will not a on a for disturb gave three victims their version of the inci- cause unless it constitutes a clear abuse of dent, finding probability injury included defendant in and a real of which discretion the complaining party.” Brett Harrison’s closet. Defendant testi- Id. Here there probability. was such fied that he the three Harrisons en- such abuse and together. tered the house 546.150, which was effect at Section opinion of majority has set forth full the time the instant trial and was re- 1989,1 Mary pealed voir dire of Steffens. examination read: any dealing challenges controversy any The new with or material fact statute provisions may judgment cause Its include: §is 494.470. of case that influence the such person who has formed or [N]o "1. ... expressed opinion concerning an the matter
381 hearing engendered by opinion good “It shall be a cause of has been in a testify oath the witnesses under to a he has formed or delivered case, the same the uni- former trial of issue, any opinion an on the or material a practice reject such has tried, appear fact be if it that such but form as a person incompetent to serve as only opinion is founded on rumor and under either opinion An formed reports, newspaper and not such as to disqualifies just of conditions named prejudice juror, or the mind of the bias impartial juror, him to however act as may he be sworn.” ability to asseverate his may much he DeClue, 50, 56 In v. State The law impartial render verdict. an (Mo.1966), is the Court said: “[§ 546.150] circumstances, not, will under such inclusive, all and the fact that the stat- disin- permit his own him of disquali- of grounds enumerates certain ute opinion formed An thus terestedness. grounds of fication does exclude other exception does not fall within Miller, incompetency.” v. See also State one RSMo statute 546.150 1986] [§ as 907, (1900); 76, 56 156 Mo. S.W. 909[2] newspaper merely upon rumor or based West, 401, 402-403 v. 69 Mo. State strictly reports, within the rule but is 13, Cole, Murphy v. 338 Mo. S.W.2d statute, prescribed by the exclusion (1935), 1023, 1024 said: Court good which it cause of declares any reason, statutory “If whether expressed if he or has formed not, is not in a or be on the or material fact to issue position jury to enter the box with an opin- tried. Men who have thus formed mind, prejudice free open from bias ready their just ions are as to declare against party of or either favor them, ability and render to discard cause, evi- and decide the case evidence, as upon the solely verdict adduced law as dence and the contained newspaper re- only read those who have instructions, in the court’s he is not a ports; experience taught has juror.” competent danger confiding to them the issues added.) qualification question liberty." (Emphasis “The of a life question decided juror is a to be Hultz, See v. 106 Mo. also State court, by juror and not one to decided be (1891); v. The State S.W. White, v. Mo. himself.” State Walton, 74 Mo. (1930). “[Ejrrors in the ex- S.W.2d v. distinguishable, Although it is potential jurors always should clusion of be (1912), Dudley, 245 Mo. S.W. Draper, on the side caution.” State was merits There defendant mention. 1984). stealing one buggy guilty found 144 Mo. Foley, 46 S.W. dire, one of the venire- *8 Vardell. On voir (1898), said: the Court he had men stated that talked Vardell practice the selec- defendant, “Certain rules of that about the arrest jurors long prevailed in this tion of have the nothing facts in about the was said state, have the of case, opinion and received sanction he had formed no that and of approbation courts and the bar. it. The thought had no more about expressed person has formed or If a trial defendant’s court overruled knowledge the Court his own of for At 450 of S.W. cause. case, conversing challenged juror not incom- in the said: “The was facts from prosecut- witnesses, with the petent. or read the sworn He had talked with the the defen- ing the arrest of pre- taken the coroner on witness about evidence before case, dant, as to none or if his but had heard liminary examination facts any for causes authorized a and also person ... shall be sworn as section cause. same the law.” may challenged A be 4. this cause for reason mentioned in guilt innocence, view, formed my had no deprived was defendant opinion.” (Emphasis added.) of a fair and is entitled to new one.
Unlike Dudley, the situation in Mrs.
Steffens discussed with the Harrisons the
facts of the case. It is true that the con- discussion,
tent of that other than what has stated, spelled was not Any out. fol-
low-up examination of Mrs. time, concerning particulars discussion could have tainted entire ve- Missouri, rel., Teddy STATE of ex nire, for other members would have Joyce TEASLEY, Relators, heard, through colleagues, one of their ex- trajudicial statements of the Harrisons con- SANDERS, The Hon. L. James cerning the incident Perhaps on trial. de- Respondent.
fense counsel felt already he had demon- strated, had, Ias believe he that Mrs. Stef- No. 57433. fens be disqualified should for cause and Missouri Appeals, Court of request follow-up therefore did not exam- District, Eastern ination hearing outside the other Writ Division One. veniremen. Feb. 1990. here, Under the it circumstances is of no Motion Rehearing and/or Transfer to moment that Mrs. Steffens was not asked Supreme Court Denied March 1990. opinion. whether she had formed an Her equivocal somewhat statements she Supreme Case Transferred to Court fair, could be and her April ultimate remark that 1990. relationship with Brett Harrison would Case Retransferred to Court her, not influence were doubtless made in Appeals Oct. 1990. good Nothing faith. in the record indicates Original Opinion Reinstated Nov. Indeed, otherwise. her candor is commend- was, however, able. She not the qualifications.
her own
The inconvenience of obtaining another
person qualified as a venireman is small
premium pay to deny- avoid the risk of
ing either side fair trial. view the
fact that a venireman had a conversation concerning
with victim facts trial disqualifies
offense on the venireman serving as a principal opinion cites no Missouri or *9 upholds
outstate case which a trial court’s
denial of a cause in a factual far
situation similar bar. So as I determine, majority opinion
can is the holding. I
first so think the is that reason judges throughout the nation con-
fronted with such a situation rou- would
tinely sustain for cause and appeal ruling.
there would be no from that