State v. Woods, 46730

• Decision Date: 08 November 1983
• Docket Number: No. 46730,46730
• Citation: 662 S.W.2d 527
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Burton WOODS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 527

662 S.W.2d 527

STATE of Missouri, Plaintiff-Respondent, v. Burton WOODS, Defendant-Appellant.

No. 46730.

Missouri Court of Appeals,

Eastern District,

Division Five.

Nov. 8, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 13, 1983.

Richard H. Sindel, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Kelly Klopfenstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

J. BRENDAN RYAN, Special Judge.

Defendant-appellant, Burton Donald Woods, III, was found guilty of capital murder by a jury in St. Louis County who assessed punishment at life imprisonment without the possibility of probation or parole for 50 years. The trial court sentenced him in accordance with the jury verdict. He appealed the judgment to the Supreme Court of Missouri which transferred the cause to this court. We affirm.

Defendant does not question the sufficiency of the evidence, so we may be brief with the relevant facts. On April 10, 1979, at 2:45 a.m., defendant was stopped for speeding in north St. Louis County. While visibly angry, he apparently was not drunk. Approximately fifteen minutes later, in response to a prowler call at the St. Louis County apartment of Kasandra Gaines, a policeman encountered defendant outside her apartment door. Defendant identified himself to the officer. Ms. Gaines, recognizing defendant as a fellow employee, admitted him to her apartment, so the officer left. Later that same morning, her upstairs neighbor was awakened around 4:00 a.m. by loud noises, but returned to sleep. Ms. Gaines was discovered fatally stabbed the following morning in her apartment by her mother. Defendant was questioned the next day by police and subsequently confessed to her murder. Evidence of defendant's insanity, aggravated by and occasioned by alcoholism, was presented as his defense.

Defendant raises four points on appeal. These points, in summary, concern: venire panel selection, issuance of subpoena or body attachment for a witness, funds for expert witnesses for defendant, and improper admission of his confession.

In his first point, defendant alleges that the trial court erred in excusing for cause certain members of the venire and in not excusing certain other members upon defendant's motion to strike for cause, thereby compelling defendant to utilize his peremptory strikes needlessly to remove persons properly excusable for cause. ¹ Defendant's argument intimates partiality by the trial court toward the prosecution because it granted all of the state's requested strikes for cause, but denied all of defendant's challenges for cause to which the state objected. Nothing in the record supports any hint of impropriety. Our scrupulous review of the trial court's action in an exhaustive four day jury voir dire substantiates our finding.

At the onset, we note that the trial court has the authority to strike prospective jurors on its own motion and is not limited to the strict terms of the applicable statutes when ruling on the competency of prospective jurors. State v. Marshall, 571 S.W.2d 768, 777 (Mo.App.1978). The trial court sua sponte excused for cause two prospective jurors with no objection by either the state or the defendant. Defendant now complains belatedly of the trial court's action. A challenge made for the first time after conviction can only be considered for plain error resulting in a miscarriage of justice or manifest injustice. State v. Ofield, 651 S.W.2d 190, 193 (Mo.App.1983). The record clearly reflects that the trial court's independent examination of these two persons established that one appeared intoxicated, shakey and unable to answer questions responsively while the other person indicated her bias because of criminal charges filed against her son with his preliminary hearing still pending. As to the removal of these two persons from the jury panel, we find neither a miscarriage of justice nor manifest injustice.

Also in his first point, defendant complains that, upon the state's challenge for cause and over his objection, the trial court erroneously excused Mrs. Woodson, a prospective juror, who indicated her religious beliefs would prevent her from imposing the death penalty. Defendant relies upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Witherspoon held that exclusion of all members of a venire who have conscientious scruples against or who are opposed to capital punishment but who did not state that they would automatically vote against the imposition of the death penalty irrespective of the evidence was violative of the Sixth and Fourteenth Amendments to the Constitution of the United States in that it deprived defendant of an impartial jury panel and would deprive him of his life without due process of law. This opinion did not involve the right to exclude a juror who could never vote to impose or refuse to consider imposition of the death penalty.

We are not faced with a Witherspoon problem. Here, Woodson categorically stated she could not consider imposition of the death penalty. She could not follow the law and consider the full range of punishment of both the death penalty and life without parole as possible sentences, if the defendant were found guilty. The state, no less than the defendant, is entitled to an impartial jury. State v. Brady, 649 S.W.2d 240, 244 (Mo.App.1983). It would have been unfair to require the state to use a peremptory challenge to unseat a juror who had demonstrated such a bias. State v. Denmon, 617 S.W.2d 132, 134 (Mo.App.1981). Just as a juror who would automatically vote to impose the sentence of death upon a finding of guilt regardless of circumstances may be challenged for cause, State v. Smith, 649 S.W.2d 417, 425 (Mo. banc 1983), a juror who would automatically refuse to consider imposition of the death penalty may also be stricken for cause. The venireman indicated a very real possibility of being sympathetic to the defendant on the issue of punishment. The propriety of the trial court's ruling on the state's motion to strike was unassailable.

Defendant's third and final prong in his first point asserts that the trial court erred in overruling defendant's challenges for cause of four venireman, none of whom served on the jury. ² The principals governing jury selection in this state are well established and frequently iterated. Of these principals, our Supreme Court has said:

Among others is the right of the criminal [sic] accused to fair and impartial jurors who will follow the law. To protect the defendant's right to a jury free from objectively demonstrated and subjectively sensed partiality, he must be afforded a full panel of qualified venireman from which to make his allotted peremptory challenges, (citation omitted). While trial court refusal to sustain a valid challenge for cause constitutes reversible error, (citation omitted), it is well established that the trial court has wide discretion in determining the qualifications of a venireman, and its decision thereon will not be disturbed absent a clear abuse of discretion and real probability of injury to the complaining party (citation omitted). A clear line cannot be drawn for all cases as to when a challenge for cause should be sustained; there will be instances in which an appellate court might have done differently but cannot say there was an abuse of discretion; each case must be judged on its particular facts; a determination by the trial judge of the qualifications of a prospective juror necessarily involves a judgment based on observation of his demeanor and, considering that observation, an evaluation and interpretation of the answers as they relate to whether the venireman would be fair and impartial if chosen as a juror. (citation omitted). Because the trial judge is better positioned to make that determination than are we from the cold record, doubts as to the trial court's findings will be resolved in its favor (citation omitted). State v. Smith, 649 S.W.2d 417, 421-422[2-7] (Mo. banc 1983).

At trial and in defendant's motion for new trial, defendant sought removal of venireman Uzzle for cause on the grounds of his stated inability to consider the defense of intoxication. On appeal, he argues Uzzle's inability to weigh impartially an insanity defense provided cause for his disqualification. Thus, defendant now pursues a claim which he has not preserved for our review. The issue as to venireman Uzzle is reviewable only from manifest injustice under Rules 29.11(d) and 29.12. Uzzle indicated some skepticism regarding the believability of testimony of psychiatrists concerning mental disease or defect. However, at no time did he indicate he would be unable to be fair to defendant. Earlier in the course of the voir dire he acknowledged both the presumption of defendant's innocence and the burden of proof upon the state to overcome that presumption. The facts of this case do not convince us to find manifest injustice in the inclusion of Uzzle on the venire panel.

Venireman Nicholas expressed equivocation regarding his ability to fairly judge the testimony of psychiatrists concerning mental disease. Defendant cites State v. Williams, 643 S.W.2d 832 (Mo.App.1982) for the proposition that whenever a venireman expresses uncertainty, a trial judge must conduct a thorough examination. Since the trial judge here did not do so, he concludes Williams mandates reversal. We do not agree.

Williams concerned a venireman who professed he accorded greater weight and credibility to the testimony of police officers than that of other persons because of his prior employment with law enforcement. In the face of his avowed bias the court still failed to question him. Williams had three elements which, taken in their totality, compelled this court's reversal: 1) the venireman's prior police affiliation; 2) his expressed favoritism toward the testimony of police officers as a generic class; and 3) the lack of...